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02-12-2020 CC Agenda
M Lf SEI—" HOME OF PELICAN ISLAND SEBASTIAN CITY COUNCIL MUNICIPAL BUDGET PROCESS WORKSHOP - 5:00 P.M. BOARD OF ADJUSTMENT MEETING & REGULAR MEETING - UPON ADJOURNMENT OF WORKSHOP WEDNESDAY, FEBRUARY 12, 2020 CITY COUNCIL CHAMBERS 1225 MAIN STREET, SEBASTIAN, FLORIDA AGENDA ALL AGENDA ITEMS MAYBE INSPECTED IN THE OFFICE OF THE CITY CLERK 1225 MAIN STREET, SE=BASTIAN, FLORIDA OR ON THE CITY WEBSITE Procedures for Public Input are on Back of Agenda CALL TO ORDER 2. PLEDGE OF ALLEGIANCE - Led by Council Member Parris 3. ROLL CALL Pgs 6-17 4. CONVENE CITY OF SEBASTIAN MUNICIPAL BUDGET PROCESS WORKSHOP 5. ADJOURN WORKSHOP & CONVENE REGULAR CITY COUNCIL MEETING 6, AGENDA MODIFICATIONS Modifications for additions require unanimous vote of City Council members 7. PROCLAMATIONS, AWARDS, BRIEF ANNOUNCEMENTS Presentations of proclamations, certificates and awards, and brief timely announcements by Council and Staff. No public input or action under this heading. 20.025 A. 211 Awareness Week Proclamation - February 11-17, 2020 Accepted by Colleen Phillips, Community Relations Specialist - 211 /Treasure Coast 20.032 B. Certificate of Appreciation to Christine Vicars - Police Retirement Board of Trustees Service Brief Announcements Monday February 17th — City Hall Closed for Presidents' Day Friday February 21St — Sebastian Police Dept. Movie Night at Riverview Park 5:30pm — 8pm Saturday February 22nd — Sebastian River Art Club Show in Riverview Park 10am — 4pm 8. PUBLIC INPUT The heading on Regular Meeting agendas 'Public Input" provides an opportunity for individuals to bring NEW INFORMATION OR REQUESTS TO CITY COUNCIL. NOT OTHERWISE ON THE PREPARED AGENDA. Individuals are asked to attempt to resolve matters with staff prior to meetings. Individuals are asked to provide copies of material for Council one week prior to the meeting if they intend to refer to specific material. City Council will not debate an issue during Public Input but may by consensus direct a Charter Officer in regard to the item if necessary or place a requested item on a future agenda. 1 of 224 9. CONSENT AGENDA All items on the consent agenda are considered routine and will be enacted by one motion. There will be no separate discussion of consent agenda items unless a member City Council so requests; in which event, the item will be removed and acted upon separately. If a member of the public wishes to provide input on a consent agenda item, he/she should request a Council Member to remove the item for discussion prior to start of the meeting or by raising his/her hand to be recognized. pgs 18-31 A. Approval of Minutes -- January 8, 2020 Regular City Council Meeting pgs -32-37 B. Approval of Minutes - January 15, 2020 IPM Workshop pgs 38-52 C. Approval of Minutes - January 22, 2020 Regular City Council Meeting pgs 53-56 D. Approval of Minutes - January 23, 2020 IPM Workshop 20.026 E. Authorize a Utility Easement along Madison Street to Connect the Community PYs 57 2 Center to Gravity Sewer and Authorize the City Manager to Execute the Appropriate Documents (Transmittal, Form, Map, Survey) 20.000 F. Approve the 2020 Pelican Island Wildlife Festival with Road Closures in Riverview P95 63-66 Park on March 7, 2020 from 10 a.m. to 4:00 p.m. (Transmittal, Letter, Map) 20.027 G. Approve Alcoholic Beverages for the Hidden Sanctuary Village Paint -A -Pallet Craft pgs 67-71 Event at the Community Center on March 6, 2020 from 6:00 p.m. to 11:00 p.m. - Permittee DOB Verified (Transmittal, Application, Receipt) 10. COMMITTEE REPORTS & APPOINTMENTS City committee reports and Council Member regional committee reports. No public input or action except for City committee member nominations and appointments under this heading. 20.028 A. Planninq and Zoninq Commission (Transmittal, Applications, Ad, List) pgs 72-85 i. Interview, Unless Waived, Submit Nominations for One Expired, Regular Member Term - Term to Expire February 2023 20.018 B. Police Pension Board of Trustees (Transmittal. Application, Ad, List, Code) pgs 86-92 i. Interview, Unless Waived, Submit Nominations for One Civilian Position - Term to Expire February 2024 20.010 C. Integrated Pest Management Parks Update (Transmittal, Summary, Plan, Schedule) pgs 93-96 11. QUASI-JUDICIAL & LEGISLATIVE PUBLIC HEARINGS Procedures for quasi-iudicial public hearings: • Mayor opens hearing • Attorney reads title of request • Council discloses ex -parte communication • City Clerk swears in all who intend to provide testimony • Applicant makes presentation • Staff presents findings and analysis • Council asks questions of the applicant and staff • Mayor opens the floor for anyone in favor of the request • Mayor opens the floor for anyone opposing the request • Applicant provided opportunity to respond to issues raised by staff or public • Staff provided opportunity to summarize request if needed • Council deliberation and questions • Mayor calls for a motion 2 of 224 20.029 A. Quasi -Judicial Public Hearina - Resolution No. R-20-01 - Conditional Use for pgs 97-130 Propertv Located at 908 U.S. Hiahwav #1 (Transmittal. R-20-01, Staff Report, Application, P&Z Minutes) RESOLUTION R-20-01 REGARDING A SPECIAL EXCEPTION TO SECTION 54-2- 5.4(c) OF THE LAND DEVELOPMENT CODE TO ALLOW AN INDUSTRIAL ACTIVITY (CONTRACTOR TRADE BUSINESS) AS A CONDITIONAL USE WITHIN THE COMMERCIAL RIVERFRONT (CR) ZONING DISTRICT, SPECIFICALLY FOR A PROPERTY LOCATED AT 908 U.S. HIGHWAY #1. Procedures for legislative Dublic hearings: • Mayor opens hearing • Attorney reads ordinance • Staff presentation • Public input • Staff summation • Mayor closes hearing • Council deliberation and action 20.021 A. Second Readina and Public Hearing - Ordinance No. 0-20-01 - Providina for pgs 131-134 Electronic Reportina of Fire Prevention and Safetv Inspections (Transmittal, 0- 20-01) AN ORDINANCE OF THE CITY OF SEBASTIAN, FLORIDA, AMENDING ORDINANCE 0-19-06; FIRE PREVENTION AND PROTECTION; RENAMING ARTICLE 11; ADDING NEW SUB SECTION (b) TO SECTION 42-28, TO REQUIRE ALL FIRE PROTECTION SYSTEM REPORTING BE SUBMITTED ELECTRONICALLY, AS SPECIFIED; RENUMBERING SUB SECTIONS (c) (d) IN SECTION 42-28; PROVIDING FOR SEVERABILITY, PROVIDING FOR CODIFICATION, PROVIDING FOR CONFLICTS, PROVIDING FOR SCRIVENERS ERRORS, AND PROVIDING AN EFFECTIVE DATE. (PJ ad 112912020) 20.022 B. Second Readina and Public Hearinq - Ordinance No. 0-20-02 - Reaardinq pgs 135-165 Floodplain Manaaement (Transmittal. 0-20-02. E -Mail) AN ORDINANCE BY THE CITY OF SEBASTIAN, FLORIDA AMENDING THE CODE OF ORDINANCES CHAPTER 46 FLOODS TO MAKE MODIFICATIONS TO BRING THE REGULATIONS INTO CONFORMANCE WITH THE MOST CURRENT FEMA - APPROVED, FLOODPLAIN MANAGEMENT ORDINANCE FOR FLORIDA COMMUNITIES THAT IS COORDINATED WITH THE FLORIDA BUILDING CODE; PROVIDING FOR APPLICABILITY AND SEVERABILITY; PROVIDING FOR CODIFICATION, PROVIDING FOR CONFLICTS, PROVIDING FOR SCRIVENERS ERRORS, AND PROVIDING FOR AN EFFECTIVE DATE. (PJ ad 112912020) 12. UNFINISHED BUSINESS 20.011 A. Approve City Attorney Agreement with Manny Anon, Jr., Esq. (Transmittal, Proposed pgs 166-172 Agreement) 13. NEW BUSINESS 20.022 A. Approve Sole Source Agreement with Brycer, LLC to Provide Web Based Electronic gds 173-183 Reporting of Fire and Life Safety Inspections and Testing; and, Authorize the City Manager to Execute the Appropriate Documents (Transmittal, Agreement, Summary, Info, Sole Source Certificate) 3 of 224 20.030 B. Authorize a Three Year Agreement with Mainstream Merchant Services to Provide p9s 184-2201 Merchant Services at the Sebastian Municipal Golf Course Pro Shop (Transmittal, Proposal, Agreement) 20.002 C. Discuss and Consider Fiscal Year 2020-21 Budget Objectives (Transmittal, pgs 221-222 Objectives) 20.031 D. Appoint One Council Member to Participate and Serve as Chair on the Audit pgs 223-224 Services Evaluation Committee for Auditing Services (Transmittal, F.S.218.391) 14. CITY ATTORNEY MATTERS 15. CITY MANAGER MATTERS 16. CITY CLERK MATTERS 17. CITY COUNCIL MATTERS A. Vice Mayor Mauti B. Council Member Gilliams C. Council Member Hill D. Council Member Parris i. Reconsider Appointment of Albert lovino to Police Pension Board of Trustees ii. Consider Council Member Gilliams' Request for a Citizens Task Force E. Mayor Dodd 18. ADJOURN (All meetings shall adjourn at 9:30 p.m. unless extended for up to one half hour by a majority vote of City Council) HEARING ASSISTANCE HEADPHONES ARE AVAILABLE IN THE COUNCIL CHAMBERS FOR ALL GOVERNMENT MEETINGS. All City Council Meetings are aired live on Comcast Channel 25, ATT UVerse Channel 99 and streamed on City of Sebastian Website www.cityofsebastian.org. ANY PERSON WHO DECIDES TO APPEAL ANY DECISION MADE WITH RESPECT TO ANY MATTER CONSIDERED AT THIS MEETING WILL NEED A RECORD OF THE PROCEEDINGS AND MAY NEED TO ENSURE THAT A VERBATIM RECORD OF THE PROCEEDINGS IS MADE, WHICH RECORD INCLUDES THE TESTIMONY AND EVIDENCE UPON WHICH THE APPEAL IS TO BE HEARD. (F. S.286.0105) IN COMPLIANCE WITH THE AMERICAN WITH DISABILITIES ACT (ADA), ANYONE WHO NEEDS A SPECIAL ACCOMMODATION FOR THIS MEETING SHOULD CONTACT THE CITY'S ADA COORDINATOR AT 589-5330 AT LEAST 48 HOURS IN ADVANCE OF THIS MEETING. Future Council Meetina Dates: February 26, 2020 - Budget Process Workshop & Regular City Council Meeting - 5:00 pm March 11, 2020 - Regular Meeting CANCELLED to accommodate Early Voting March 25, 2020 - Regular City Council Meeting - 6:00 pm April 8, 2020 - Regular City Council Meeting - 6:00 pm April 22, 2020 - Regular City Council Meeting - 6:00 pm 4 of 224 PROCEDURES FOR PUBLIC INPUT IN ACCORDANCE WITH RESOLUTION R-15-10 Reqular Citv Council Meetinas Public input is ALLOWED under the headings: ✓ Consent Agenda ✓ Public Hearings ✓ Unfinished Business ✓ New Business ✓ Public input Public input is NOT ALLOWED under the headings: ✓ Proclamations, Awards, Brief Announcements (except for individuals giving or accepting proclamations or awards),- Committee wards);Committee Reports and Appointments (except for committee members giving reports and applicants being interviewed for committee appointments); ✓ City Council Matters ✓ Charter Officer Matters Council may, by majority vote, call upon an individual to provide input if desired. Workshops and Special Meetinas. Public input is limited to the item on the agenda Time Limit Input on agenda items where public input is permitted on agendas is FIVE MINUTES; however, City Council may extend or terminate an individual's time by majority vote of Council members present. Input Directed to Chair Speakers shall address the City Council IMMEDIATELY PRIOR TO CITY COUNCIL DELIBERATION of the agenda item and ALL INPUT SHALL BE DIRECTED TO THE CHAIR, unless answering a question of a member of City Council or City staff. Individuals shall not address City Council after commencement of City Council deliberation on an agenda item after public input has concluded, provided, however, the Mayor and members of City Council may recall an individual to provide additional information or to answer questions. Certain Remarks Prohibited Personal, impertinent, and slanderous remarks, political campaigning and applauding are not permitted and may result in expulsion from the meeting. The Chair shall make determinations on such remarks, subject to the repeal provisions below. Appealinq Decisions of Chair Any member of Council may appeal the decision of the Chair to the entire Council. A majority vote of City Council shall overrule any decision of the Chair. Public Input Heading on Aaenda The heading on Regular Meeting agendas "Public Input" provides an opportunity for individuals to bring NEW INFORMATION OR REQUESTS TO CITY COUNCIL NOT OTHERWISE ON THE PREPARED AGENDA. Individuals are asked to attempt to resolve matters with staff prior to meetings. Individuals are asked to provide copies of material for Council one week prior to the meeting if they intend to refer to specific material. City Council will not debate an issue during Public Input but may by consensus direct a Charter Officer in regard to the item if necessary or place a requested item on a future agenda. 5 of 224 Off SERV HOME OF PELICAN ISLAND CITY COUNCIL AGENDA TRANSMITTAL FORM COUNCIL MEETING DATE: February 12, 2020 AGENDA ITEM TITLE: City of Sebastian Budget Process Workshop RECOMMENDATION: Vote to Modify or Approve the Budget Objectives Prepared and Recommended by Staff. The attached power point presentation has been prepared to review the City's budget process. The Administrative Services Director/CFO will make the presentation and respond to any questions that may be asked. IF AGENDA ITEM REOUIRES EXPENDITURE OF FUNDS: Appropriation Required: NIA Administrative Services Department Review: i l ATTACHMENTS: • Power Point Presentation on the Budget Process. City Manage A thorazation: Date:�y�t7 6 of 224 City of Sebastian 1 Budget_, Process Presentation to City Council Wednesday February 12, 2020 Prepared By: Ken Killgore Administrative Services Director/CFO City of Sebastian Presentation Topics *Budgeted Funds & Capital Program (CIP) *Budget Calendar and Timeline Summary 'Draft Creation and Review Process *Dealing with Budget Shortfalls *Publishing the Draft Budget & CIP *Budget Board & Reviews by other Boards *City Council Adoption and "TRIM" Laws *Flow Chart/Controls/Citizen Participation 7 of 224 3 City of Sebastian Budgeted Funds_& Capital Program 'Budget Includes Entities Known as Funds That Are Separately Balanced: "General Fund $ 12.9 Million •Special Revenue Funds 9.2 •Debt Service Fund .4 •Capital Project Funds 7.7 *Enterprise Funds 2.7 •Less Inter -fund Transfers 6.6 •Actual Dollars Budgeted $26.3 Million 4 City of Sebastian Budgeted Funds &Capital Program *General Fund - Unrestricted Taxes or Fees. Used for City Council, City Attorney, City Clerk, City Manager, Administrative Services, Police, Community Development, Public Facilities, Street Operations and Leisure Services •Special Revenue Funds — Revenue Limited to Specific Uses. Includes Gas Tax, Discretionary Sales Tax, Recreation Impact Fees, CRA Tax Increment, Parking -In -Lieu -Of Funds, Stormwater Utility Fees & Law Enforcement Forfeitures 8 of 224 5 City of Sebastian Budqeted Funds & Capital Program •Debt Service Fund —Accounts For Discretionary Sales Taxes Transfers for Stormwater Debt Payments. `Capital Proiect Funds --Accounts for Capital Expenditures Paid With Transfers from Other Funds or Grant Proceeds. 'Enterprise Funds - Charges to Customers to Operate Golf Course, Airport and Building Department. 6 City of Sebastian Annual Operatinq Budqet •Financial Plan for the Next Fiscal Year — October 1 St to September 30th -Shows Expected Operating Costs and Spending on Equipment and Capital Projects *Shows Expected Revenue to be Available and Any Increase or Decrease in the Amount of Reserve Funds *Each Fund Must be Balanced. 9 of 224 7 City of Sebastian Caaital Improvement Prpg ram (CIP) *Forecast Financial Needs for Next Budget Year and the Following Five Years: `Assumes Pay & Benefit Changes Assumes Operating and Maintenance Costs '=Assumes Capital Projects and Equipment "Shows Revenue Projections for the Next Budget Year and the Following Five Years "Shows Each Fund's Remaining Balances *Annual Update Allows Gradual Adjustments City of Sebastian Budget Calendar "Provided at 1St Meeting of January List Deadlines and Meeting Dates Allows For Input in a Timely Manner *Keeps Steady Progress to Adoption Insures Legal Requirements Are Met 10 of 224 City of Sebastian 9 Budqet Timeline *January Set Calendar, Budget Board Intro •Feb. — Mar. Departments Submit CIP Request •April — May Departments Submit Budget •June Review/Balancing, Presentation to Budget & Parks/Recreation Boards 'July Council Sets Proposed Millage •August CIP to Planning/Zoning Board, Workshop for City Council •September Public Hearings, Millage, Budget and CIP Adoption 10 City of Sebastian Draft Creation and Review •Information Gathering: •Departments Submit Request for Capital Items for Next 6 Years, Staffing Changes and Operating Account Spending •Finance Calculates Salary & Benefit Costs •Finance Projects Revenues •Administrative Services Review: •Verify Submittals Accuracy & Completeness •Compile Budget and CIP Working Draft •Calculate Funding Shortages 11 of 224 11 City of Sebastian Draft Creation and Review 'Initial Review by City Manager: *City Manager Meets with Department Heads, Finance, HR and Purchasing *Detailed Discussion/Review of Request •Initial Approval or Request for More Details *City Manager Has Day -To -Day Involvement and Knows Each Department's operations and Areas Needing Attention *Funding Shortfalls Are Recalculated City of Sebastian 12 Handling Budget Shortfalls *Review Revenue Projections for Updates *Review Expenditures for Desires VS. Needs *Extra Allocations for Non -Specific Expenditures "Cushions for Uncertain Cost Increases *Assume R&R for "Just -in -Case" Replacements •Defer Additional Personnel or New Activities *Use Special Revenue Funds If Eligible *Negotiate Cost/Benefits of Insurance *Negotiate With Collective Bargaining Units 12 of 224 City of Sebastian 13 Issue Draft B.ud_qe.t/C..I.P *When Funding Shortfalls Have Been Addressed & All Funds Are Balanced "Publish Draft Budget/CIP Document "Provide Draft to Budget Review Advisory Board and City Council • Post Draft on City Website *Usually in June (June 10 in 2020) City of Sebastian 14 Budget Review Advisory. Board "Briefed on Budget Working Draft 'Assumptions on Millage and Revenues 'Reasons for Changes in Expenditures *Board Agrees With Draft or Decides to Recommend Something Different 'Role is Oversight and Review 'Focus is Big -Picture and Balanced Budget 13 of 224 City of Sebastian 15 Reviews by Other Boards •Parks & Recreation Advisory Committee Briefed on Uses of Recreation Impact Fees and other Leisure Services Items *Planning & Zoning Commission Briefed on Capital Improvement Program and the Commission Votes on Whether It Complies With the Comprehensive Plan City of Sebastian 16 C� Council Adoption *General Fund Briefing and City Council Adoption of Proposed Millage in July 'Recommended Millage, Draft Budget & CIP Presented to City Council in August •"Tentative" Millage & Budget Adopted and Advertised, Then Public Hearing on "Final" Millage & Budget • 1 St Class Mail if Millage Above "Proposed" •If Above "Rolled -Back, Ad Says Tax Increase 14 of 224 17 City of Sebastian TRIM-Leqislation F.S. 200.065 •"Truth in Millage" Law - Since 1980 'Mandates "TRIM Notice", Budget/Millage Public Hearings and Advertising Rules *Requires "Rolled -Back Rate" and Setting "Proposed Millage" for "TRIM Notices" 'Requires "Tentative" Adoption of Millage and Budget at the 1$t Public Hearing and "Final" Adoption at the 2nd Public Hearing FEBRUARY THROUGH JULY is FROM START TO SUBMITTAL OF DR420 Staff Public Review Dept. Request Budget Board �y Introductions I Revenues L CM Meetings Taxable Est. Balance Draft & Put on Website -- - Discuss GIF Budget Receive DR420 & I Draft & Millage Compute Millage -- - 'J\\ �7 -- Budget Board Suggestions I Submit DR420 I - Cit v Council Provided Draft (June 101h 2020) Discuss GIF & Set T Proposed Millage I 15 of 224 AUGUST THROUGH SEPTEMBER 19 FROM FINAL RECOMMENDATION TO ADOPTION Staff Public Review City Council CIP Review by P&R P&R Committee & Committee and P&Z P&Z Commission Commission Updated Budget/ClP=-_--- Provided Updates Put on Website Update Budget Board Additional Budget Board Suggestions ` Agenda 1s1 Hearing Advertise & Agenda Final Public Hearing Publish/Send to Tax Collector & State It -- - --? 1 Budget Workshop Public Hearing Tentative Approval Public Hearing Final Approval City of Sebastian zo Budqet Control/Citizen-P-artici-patio-n *Computer System Stops Budget Overruns. "Monthly Budget Reports to Departments *Project Status Meetings Identify Problems ~Quarterly Report Presentations to Budget Review Advisory Board and City Council *Budget Variances Questioned by Auditors *Comprehensive Annual Financial Report Reports Budget Changes for the Year 16 of 224 City of Sebastian 21 Budget Control/Citizen Participation •Budget is Essentially aYear-Round Process •Involves Many People and Affects Everyone •opportunities for Public Input and Monitoring. •Serve on the Budget Review Advisory Board or Attend Their Meetings •Attend City Council Budget Meetings and Public Hearings on Millage and Budget •Videos and Documents Posted on Website 'Call or Meet With CFO For Questions 22 City of Sebastian Budget Process Questions? 17 of 224 MOF $EBASTtAN HOME OF PELICAN ISLAND SEBASTIAN CITY COUNCIL PARLIAMENTARY & MEETING PROCEDURES WORKSHOP — 5:00 P.M. BOARD OF ADJUSTMENT MEETING & REGULAR MEETING WEDNESDAY, JANUARY 8, 2020 CITY COUNCIL CHAMBERS 1225 MAIN STREET, SEBASTIAN, FLORIDA MINUTES 1. Mayor Dodd called the workshop to order at 5:00. 2. A moment of silence was held and Council Member Gilliams led the Pledge of Allegiance. 3. ROLL CALL Mayor Ed Dodd Vice Mayor Charles Mauti Council Member Damien Gilliams Council Member Pamela Parris Members Absent Council Member Jim Hill Staff Present City Manager Paul Carlisle City Attorney James Stokes City Clerk Jeanette Williams Public Facilities Director/Airport Director Scott Baker Community Development Director/CRA Manager Lisa Frazier Community Development Manager Dorri Bosworth Community Development Senior Planner Robert Loring Administrative Services Director/CFO Ken Killgore Asst. Administrative Services Director Cindy Watson Procurement/Contracts Manager Ann -Marie Fraser Leisure Services Director Brian Benton Engineer/Stormwater Director Ken Griffin Golf Pro Greg Gardner Police Chief Michelle Morris Deputy Police Chief Greg Witt 4. CONVENE PARLIAMENTARY & MEETING PROCEDURES WORKSHOP A. Review Roberts Rules of Order Mayor Dodd convened the workshop at 5:03 p.m. to talk about Council procedures. He summarized how the City Council operates off of an agenda with motions to approve or disapprove the agenda items; the option to table items; and the method to vote on an item. He said Council Members could raise a point of order to enforce the rules; a point of information; and a point of privilege to bring the discussion back to themselves. 18 of 224 Parliamentary Procedures Workshop Board of Adjustment & Regular Council Meeting January 8, 2020 Page Two Andrea Ring asked who rules on the point of order. Mayor Dodd explained the chair rules on the point of order which has to be on something specific and if the requestor or other member disagrees, there can be a vote. A second isn't required for a point of order. B. Review Sunshine Law and Public Communication Practices Mayor Dodd said the Sunshine Law applies to any member of a board, committee, or official except for the state legislators. He advised that no two people can have a conversation about an item that may come before them for a decision; it's very difficult to think of things that may not come before City Council. He also noted members of the public cannot be an intermediary between two members either. The City Attorney advised that if two or more members of one board are going to be present at another board meeting, the meeting needs to be advertised as a joint meeting. Mayor Dodd said it was highly important for members to understand that they give away some of their 1st Amendment Rights to the Sunshine Law. Jeff Kracht, 5700 Marina Drive, asked to speak regarding the Chapter 164 process that the City is currently involved in. Mayor Dodd asked him to return during Public Input. Mayor Dodd said everyone has signed agreements that they would not improperly use the social media outlets. The City Attorney advised that if the members use a social media site and mention the City's business, or list themselves as a Council or board member; it takes the page or website out of the personal realm and makes it a public page. He also said it is the substance of the communication, not the device that makes something a public record; text messages should be screen shot and turned over to the City Clerk for retention. Mayor Dodd advised Bob Stephen that Council Members should speak to each other at these meetings. C. Review Past Practices Mayor Dodd said they typically follow an agenda and use a primary motion as a single source to pass or fail an item. He said he would try not to amend a primary motion with something that is not pertinent to the item. He said once a motion is made and seconded, they will continue to receive public input. The City Attorney advised that Section 10b (of R-15-10) is interpreted to mean that if the rules are not strictly followed, it doesn't invalidate the action. D. Review Resolution No. R-15-10 — Meetinq Procedures Mayor Dodd advised Resolution No. R-15-10 lays out the sequencing of the agenda. He asked the Council Member if they would like to see any revisions at a subsequent meeting. Mayor Dodd read Section 3 related to the chair and noted the five Council Members are vested with equal power based on the Charter. 19 of 224 Parliamentary Procedures Workshop Board of Adjustment & Regular Council Meeting January 8, 2020 Page Three Bob Stephen asked if the City Manager wasn't doing his job, did he have to wait until the next Council meeting to talk to Council. Mayor Dodd advised him to speak under public input at a Council meeting or call the hotline number to begin a paper trail. It was the consensus of City Council to move up Public Input after the Consent Agenda or Committee Reports through a revision of the resolution. Mayor Dodd reviewed that a Council Member has the power to bring an item to Council and then turn the power to Council who can then act on the item and then give it to the Charter Officers for implementation. Being no further business, Mayor Dodd recessed the workshop at 5:45 p.m. 5. ADJOURN WORKSHOP & CONVENE REGULAR CITY COUNCIL MEETING Mayor Dodd reconvened the Regular City Council Meeting at 6:01 p.m. All Members except Council Member Hill were present. 6. AGENDA MODIFICATIONS Modifications for additions require unanimous vote of City Council members MOTION by Mayor Dodd and SECOND by Council Member Gilliams to add item #13a requesting to lift the spraying moratorium in order to spray the ballfields. Council Member Gilliams said he would not vote for the additional item and requested the information be placed on the next agenda so they would have time to review the material. No further action was taken. 7. PROCLAMATIONS. AWARDS. BRIEF ANNOUNCEMENTS Presentations of proclamations, certificates and awards, and brief timely announcements by Council and Staff. No public input or action under this heading. Brief Announcements January 11 — Craft Club Show in the Park — 10 am to 3 pm January 18 to 19 — Sebastian River Fine Art and Music Festival in Riverview Park January 16 to 19 — Fellsmere Frog Leg Festival in Sister City Fellsmere Mayor Dodd announced the upcoming events and the City Manager added the Indian River County Executive Roundtable Committee would be holding their 5K Run Saturday at the Fellsmere Preserve which will support the underserved youth of Indian River County. 8. ADJOURN CITY COUNCIL MEETING AND CONVENE BOARD OF ADJUSTMENT MEETING Chairman Dodd adjourned the Regular City Council meeting and convened the Board of Adjustment meeting at 6:11 p.m. A. MOTION by Chairman Dodd and SECOND by Mr. Gilliams to approve the May 8, 2019 Board of Adjustment Minutes passed with a unanimous vote of 4-0. 20 of 224 Parliamentary Procedures Workshop Board of Adjustment & Regular Council Meeting January 8, 2020 Page Four B. Quasi -Judicial Public Hearinq i. FRED AND GLORIA CLIFFORD REQUESTING A VARIANCE FROM SECTION 54-2-5.2.2(d)(5) OF THE SEBASTIAN LAND DEVELOPMENT CODE IN REGARDS TO LOT 45, SAN SEBASTIAN SPRINGS SUBDIVISION REPLAT, LOCATED AT 616 CROSS CREEK DRIVE. THE VARIANCE IS FOR AN EXISTING POOL SCREEN ENCLOSURE TO BE AT MAXIMUM 1.3 FEET FROM THE SIDE PROPERTY LINE OF A CORNER LOT, AND ENCROACH INTO A 5 FOOT UTILITY EASEMENT, WHERE THE REGULATIONS FOR THE RS -20 ZONING DISTRICT REQUIRES THAT STRUCTURES MAINTAIN A MINIMUM SETBACK OF 15 FEET FROM THE SIDE PROPERTY LINE. (Transmittal, Staff Report, Criteria, Exhibits, Application, Aerial, Notice) Chairman Dodd opened the public hearing and the City Attorney read Mr. and Mrs. Clifford's request. There were no ex -parte communications to disclose by the Council Members. The City Clerk swore in everyone that was to provide testimony. Mr. Clifford explained that they purchased house in December 2017 and a year later found out the 1998 pool enclosure was installed utilizing an old survey with a ten foot setback however today's code requires a fifteen foot setback. The Community Development Manager said the 1998 pool enclosure permit was issued in good faith, but now that Mr. Clifford would like to sell his house, there may be a title insurance issue because of the encroachment into the setback and the utility easement. She said based on the Land Development Code definition, this was a considered a side yard encroachment requiring it to be 15 feet from the property line; they advised Mr. Clifford that he would need to see if the encroachment was okay with FPL and the homeowner's association (HOA). She said the backup included approval from both parties. She said staff did feel that the request met all of the criteria outlined on pages 19-21 of the agenda packet. She said if the enclosure was redesigned, it would have to meet the 15 feet setback and staff recommended approval. Mr. Gilliams stated the FPL letter cited the wrong lot number. The Community Development Manager gave him a copy of a letter with the corrected lot number and he noted the date should have been yesterday or today. The Community Development Manager noted the FPL letter was received within an hour of requesting the lot correction; the legal notice was published in the newspaper as well as 28 property owners were notified within 300 feet. She was also in receipt of approval submitted by the HOA's attorney. The City Attorney said the applicant has the responsibility to provide the information, Council could certainly request additional information, but at some point staff has to determine there is enough information provided. 21 of 224 Parliamentary Procedures Workshop Board of Adjustment & Regular Council Meeting January 8, 2020 Page Five Council Member Gilliams said staff should have checked the date of the FPL letter and the validity of the homeowner's document indicating the (HOA) board's consent. Ted Godfrey said the Cliffords are not responsible for the previous owner's violation nor should they be expected to bear any hardship to rectify the situation. He supported the request for a variance. (See statement attached) There was no one to speak in opposition. MOTION by Vice Chairman Mauti and SECOND by Ms. Parris to approve the variance. Roll call: Vice Chairman Mauit — aye Mr. Gilliams — aye Ms. Parris — aye Mr. Hill — absent Chairman Dodd — aye Motion carried 4-0. 9. ADJOURN BOARD OF ADJUSTMENT MEETING AND RECONVENE REGULAR CITY COUNCIL MEETING Mayor Dodd reconvened the City Council meeting at 6:36 p.m. All members were present except for Council Member Hill. 10. CONSENT AGENDA All items on the consent agenda are considered routine and will be enacted by one motion. There will be no separate discussion of consent agenda items unless a member City Council so requests; in which event, the item will be removed and acted upon separately. If a member of the public wishes to provide input on a consent agenda item, he/she should request a Council Member to remove the item for discussion prior to start of the meeting or by raising his/her hand to be recognized. A. Approval of Minutes — November 26, 2019 Special Council Meeting B. Approval of Minutes - December 11, 2019 Regular City Council Meeting 20.001 C. Approve Municipal Election Agreement between the Indian River County Supervisor of Elections and City of Sebastian for Calendar Year 2020 (Transmittal, Agreement) 20.002 D. Approve the Fiscal Year 2020/2021 Budget and Capital Improvement Program Calendar (Transmittal, Calendar) 19.063/20.003 E. Award Agreement to Guardian Community Resource Management, Inc. (RFP #19- 12) for CDBG Administration Services in the Approximate Yearly Expense of $20,000-$24,000 and Authorize the City Manager to Execute the Appropriate Documents (Transmittal, Scoresheet, References, Response, Agreement) 20.004 F. Approve the Piggyback to Florida Sheriff's Association Contract #FSA18-VEH16.0 Cab & Chassis Trucks and Heavy Equipment to Replace a Caterpillar (CAT) 311 F Excavator with Attachments for the Public Works Department in the Amount of $182,793.00 and Authorize the City Manager to Execute the Appropriate Documents (Transmittal, Quote, Notice of Intent, Contract Info, Comparative Quotes) 22 of 224 Parliamentary Procedures Workshop Board of Adjustment & Regular Council Meeting January 8, 2020 Page Six 20.005 G. Approve Road Closures for the Sebastian Police Department's Movie Night Out on February 215', 2020 and the Sebastian Easter Egg Hunt on April 11th, 2020 (Transmittal, Map) 20.006 H. Approve Alcoholic Beverages for Miller Family Event at Community Center on 1/10/20 from 5:00 p.m. to 11:00 p.m. — Permittee DOB Verified (Transmittal, Application, Receipt) 20.007 I. Approve Alcoholic Beverages for Radebach Family Event at Yacht Club on 2/1/20 from 12:00 p.m. to 5:00 p.m. — Permittee DOB Verified (Transmittal, Application, Receipt) MOTION by Council Member Gilliams and SECOND by Council Member Parris to approve consent agenda items A -I. Roll call: Council Member Gilliams — aye Council Member Hill — absent Council Member Parris — aye Mayor Dodd — aye Vice Mayor Mauti — aye Motion carried 4-0. 11. COMMITTEE REPORTS & APPOINTMENTS City committee reports and Council Member regional committee reports. No public input or action except for City committee member nominations and appointments under this heading. 20.008 A. Citizens Budaet Review Advisory Board i. Council Member Gilliams Announces His Appointee ii. Council Member Parris Announces Her Appointee Council Member Parris announced her appointment is Ralph E. Holmes. Council Member Gilliams announced his appointment is Gilbert Lewin. 20.009 B. Construction Board (Transmittal, Application, Ad, List) i. Interview, Unless Waived, Submit Nominations for One Unexpired, Regular Member Position — Term to Expire 9/30/21 Mayor Dodd and Council Member Gilliams appointed Richard Wilcher for the regular member position with a term to expire September 30, 2021 with a unanimous voice vote. Mayor Dodd reported at the Treasure Coast Council of Local Government meeting earlier in the day, there was an interesting presentation given on the importance of the upcoming Census. He asked everyone to think about the 2020 Census. 12. PUBLIC HEARINGS 19.155 A. Reconsider Revisions Made to Ordinance No. 0-19-07 and Hold Public Hearinq Reaardina Recvclable Materials (Transmittal. Annlication. Zonina Mao) 23 of 224 Parliamentary Procedures Workshop Board of Adjustment & Regular Council Meeting January 8, 2020 Page Seven AN ORDINANCE OF THE CITY OF SEBASTIAN, FLORIDA, AMENDING THE CODE OF ORDINANCES, CHAPTER 86, ARTICLE III, BY ESTABLISHING A DEFINITION FOR "RECYCLABLE MATERIALS"; AND AMENDING THE LAND DEVELOPMENT CODE, ARTICLE XXII — LANGUAGE AND DEFINITIONS, BY ESTABLISHING DEFINITIONS AND LAND USE CLASSIFICATIONS FOR "RECYCLING OR MATERIALS RECOVERY FACILITIES"; AND AMENDING ARTICLE V — ZONING DISTRICT REGULATIONS, BY ESTABLISHING RECYCLING OR MATERIALS RECOVERY FACILITIES AS CONDITIONAL USES IN THE INDUSTRIAL ZONING DISTRICT; AND AMENDING ARTICLE VI — CONDITIONAL USE CRITERIA, BY ESTABLISHING SPECIFIC CONDITIONS FOR RECYCLING OR MATERIALS RECOVERY FACILITIES; PROVIDING FOR REPEAL OF CONFLICTING PROVISIONS; SEVERABILITY; PROVIDING FOR CODIFICATION; PROVIDING FOR SCRIVENER'S ERRORS, AND PROVIDING AN EFFECTIVE DATE. (PJ Ad 12/1/19) MOTION by Mayor Dodd and SECOND by Council Member Gilliams to remove Ordinance 0-19-07 from the table passed with a unanimous voice vote. The City Attorney read the title to Ordinance No. 0-19-07 and Mayor Dodd opened the public hearing at 6:42 p.m. The City Manager stated the ordinance was tabled to address the subjective language of the term adequate and tie in section 4 with 5, 6 and 7 regarding the buffer and 48 hour storage. Rebecca Grohall, representing Shannon Cook, asked for consideration of allowing 96 hours versus 48 for outside storage; allowing cars to be part of the recycling business; and to strike the words or greater on page 169, which seem as ambivalent as the term adequate. The City Manager explained this code change addresses all industrial lands of the City not a specific site; intended to remove products that have resale value the next day prompting the 48 hour time frame. He said staff writes ordinances based on conversations with the applicant and tried to accommodate as many items as possible because it is good to recycle but staff did not want to see cars stacked up but would do as directed by Council. The Community Development Director stated the ordinance hasn't been changed since it went before the Planning & Zoning Board in October, then to Council in November and December; and now staff is being asked to completely modify it. She asked Council to consider junkyards are prohibited in the City of Sebastian and if cars are allowed, they will be allowing junkyards to occur requiring a modification to the Comprehensive Plan. She also noted the buffer requirement was clearly identified in the revised language. Council Member Gilliams stated he was concerned with changing the definition of junk and increasing the storage time to 96 hours. He began a MOTION to a pass the ordinance as presented. Shannon Cook, Red Warrior Holding Corp., said included in the definition of a junkyard or salvage yard, an individual can buy something off the yard which is not going to be the case with his recycling facility; recycling materials are defined by what the item is made of. He explained that when he receives an automobile, it cannot go back on the road, it is considered metal, it will be loaded onto a closed truck with other metals (washer, dryers) and the car increases the value of his load. 24 of 224 Parliamentary Procedures Workshop Board of Adjustment & Regular Council Meeting January 8, 2020 Page Eight He asked Council to keep in mind these cars are on the side of people's houses now or in fields. He requested the 96 hour storage period in case his hydraulic excavator would need repaired. He offered to put the vehicles behind something. He asked to operate a recycling facility without restrictions on what type material he will recycle. Ben Hocker said the cars are going to be crushed and six cars will go into his truck loads; he asked what the County allows. Aaron Bowles, MBV Engineering, said the minor modifications they are requesting were not excessive; the 96 hour was to cover an item dropped off Friday and picked up Monday. He said if automobiles were not included, Mr. Cook would like to postpone the hearing. The City Manager stated RVs, trailers, and boats were also excluded, and asked Council to remember this would change the entire industrial areas within the City; if vehicles were to be allowed, the Comprehensive Plan would have to be revised. He also said automobiles were not requested until the end of their application conversation. Mayor Dodd closed the public hearing. The Community Development Director said there has always been a copy of the applicant's application in meeting backup which does not include anything about automobiles. Council Member Gilliams asked for a point of order to allow Mr. Cook to make an additional comment. Mr. Cook explained his application timeline and noted he always planned to recycle cars. The Community Development Director said the Comprehensive Plan specifically states junkyards are prohibited in the industrial zoning area and there has been continuous conversation requesting clarification as to what exactly his plans would be for the property which the City did not find out until his site plan application for a salvage yard. MOTION by Council Member Gilliams and SECOND by Council Member Parris for discussion. Council Member Parris asked that automobiles be recycled. AMENDED MOTION by Council Member Parris and SECOND by Mayor Dodd to allow the recycling of automobiles. The City Attorney advised they did not have the authority to pass an ordinance inconsistent with the comprehensive plan; they should pursue a motion to amend the plan first. Roll call on the amendment: Council Member Parris — aye Mayor Dodd — nay Vice Mayor Mauti — aye Council Member Gilliams — nay Council Member Hill — absent Motion failed 2-2. AMENDMENT by Mayor Dodd and SECOND by Council Member Gilliams to remove the words "or greater" in section 7 on page 169. 8 25 of 224 Parliamentary Procedures Workshop Board of Adjustment & Regular Council Meeting January 8, 2020 Page Nine Roll call: Mayor Dodd — aye Vice Mayor Mauti — aye Council Member Gilliams — aye Council Member Hill — absent Council Member Parris — aye Motion carried 4-0. MOTION by Council Member Gilliams and SECOND by Council Member Parris to approve Ordinance 0-19-07 as submitted with the amendment of removing the words, "or greater." Roll call: Council Member Hill — absent Council Member Parris — aye Mayor Dodd — aye Vice Mayor Mauti — aye Council Member Gilliams - aye Motion carried 4-0. 13. UNFINISHED BUSINESS 7.37 pm 19.158120.010 A. Consider Liftina the Moratorium of Herbicide Soravina to Allow the Testina of an Organic Herbicide (Transmittal) Mayor Dodd advised this item was only to allow the City Manager to test Whack Out Weeds (WOW) in an aquatic arena. MOTION from Mayor Dodd and Council Member Parris to exempt the City Manager from the spraying moratorium to test the WOW or other herbicide products. The City Manager said he planned to test plots with different vegetation types. Vice Mayor Mauti asked that signs be posted if plots are in a public area. Bob Stephen asked how this could be requested prior to the herbicide workshops noting that members of the public have decided that the City wasn't capable of doing a responsible job for the spraying. Mayor Dodd asked him to refrain from criticizing staff. Council Member Gilliams called for a point of order noting Mr. Stephen has a right to speak. The City Attorney advised that the Mayor as the chair of the meeting has the right to request that staff not be defamed or discredited. Mayor Dodd asked Mr. Stephen to limit his comments to the subject at hand. Mr. Stephen asked what is going to be sprayed and when. Diana Bolton, George Street, said it was wonderful to be cautious with the test plots. She asked that a survey of the underwater life be taken noting some of the plants and algae eaters are needed. Andrea Ring, Quarry Lane, asked what areas the City Manager planned to try. 26 of 224 Parliamentary Procedures Workshop Board of Adjustment & Regular Council Meeting January 8, 2020 Page Ten The City Manager said he would like to try to treat the cattails and spatterdocks at Garden Street Park (50 by 50 square feet), milfoil at Hardee Park (20 or 30 feet), and he was still looking for an area with water hyacinth and water lilies. He noted staff is certified to spray and the MDS sheet indicates there are no known effects to aquatic life. Council Gilliams requested that the spraying be monitored by a community scientist and asked to recognize the Natural Resources Board Chairman, Charles Stadelman who was sitting in the audience. Mayor Dodd denied his request noting the Board was not charged with the assignment. Council Member Gilliams asked to appeal. Roll call of the appeal: Council Member Gilliams — aye Council Member Hill - absent Council Member Parris - aye Mayor Dodd — nay Vice Mayor Mauti — aye Motion carried 3-1. Charles Stadelman stated he was not representing Board; however, he recommended lifting the moratorium to test the herbicide. Before approaching the Board to provide input, Mr. Stadelman requested receipt of for baseline information that will be forthcoming from the City Manager during the upcoming workshops. AMENDMENT by Council Member Gilliams and SECOND by Vice Mayor Mauti to lift the moratorium to allow the City Manager to test two spots of 20 to 50 feet location at Garden Park; a 50 to 50 feet location at Hardee Park; a 50 to 50 feet location at the Elkcam waterway (Concha) and one additional (50 to 50 feet) high water area to be determined by the City Manager with someone from the environmental community to observe the spraying and identify the invasive/non-evasive plants. (note: Mr. Gilliams removed the fish survey request at 8:04 pm) Roll call on the amendment: Motion carried 3-1. Roll call of main motion Motion carried 4-0. Council Member Hill — absent Mayor Dodd — nay Council Member Gilliams — aye Vice Mayor Mauti — aye Council Member Hill — absent Mayor Dodd — aye Council Member Parris — aye Vice Mayor Mauti — aye Council Member Gilliams — aye Council Member Parris — aye 19.124/20.011 B. Citv Attornev Recruitment — Confirm the Rankina of Attornevs to be Interviewed (Transmittal, Gilliams Letter, Mauti Letter, Score Sheets) Mayor Dodd stated that Council Member Gilliams found some errors in the ranking sheets and as a result there was a change in the number forth rank so the four applicants are Anon, Migut, Oldehoff and the firm, Weiss, Serota, Helfman, Cole, and Bierman. MOTION by Council Member Gilliams and SECOND by Council Member Parris to proceed with a clean ballot and put it out to the public. 27 of 224 Parliamentary Procedures Workshop Board of Adjustment & Regular Council Meeting January 8, 2020 Page Eleven Roll call: Council Member Parris — aye Vice Mayor Mauti — aye Council Member Hill — absent Motion carried 3-1. Mayor Dodd — nay Council Member Gilliams — aye Mayor Dodd said he would ask the City Attorney to bring the process forward at the next meeting. He did not want to vote at this meeting because one Council Member was absent. The City Attorney advised this was put on the agenda to confirm or not confirm the prior ranking; the motion supported the ranking was to be redone as a new agenda item on a future agenda. Council Member Gilliams stated that he requested a re -vote. The City Attorney advised they cannot transact business that is not on the agenda. The City Manager stated his transmittal was for a clarification of the vote. Council Member Gilliams asked Council to re -vote and use Council Member Hill's ranking from the last time. Mayor Dodd noted his request for a re -vote passed and would happen at the next meeting. Mayor Dodd recessed the meeting at 8:20 p.m. and reconvened the meeting at 8:25 p.m. Mayor Dodd said the City Attorney advised the agenda item was to determine if errors were there and it was determined that they were, and there would be a re -vote. Council Member Gilliams asked for a point of order to hold a re -vote tonight. Mayor Dodd ruled that the meeting should proceed to Item 15A. The City Attorney advised the Mayor chairs the meeting and establishes the order of the meeting. Mayor Dodd stated he has established the order. The City Manager read his agenda summary on page 180 which suggested that Council may consider Weiss, Serota, Helfman, Cole, and Bierman as the fourth applicant. Because the item was closed out, MOTION by Council Member Parris and SECOND by Council Member Gilliams to recall the motion to have a re -vote. Roll call: Mayor Dodd did not want to have a re -vote Vice Mayor Mauti wanted to have a re -vote Council Member Gilliams wanted to have a re -vote Council Member Parris did not want to have a re -vote Council Member Hill was absent Motion failed 2-2. The City Attorney stated the motion was to bring this item back to the table to entertain a new motion. Council Members Gilliams and Parris withdrew their motion and second. Mayor Dodd stated the conversation started with their interviewing Manny Anon, David Migut, Gary Oldehoff, and Paul Gougelman with the firm of Weiss, Serota, Helfman, Cole, and Bierman. It was the consensus of Council to have the City Clerk set up interviews with those four attorneys before the next meeting. 28 of 22141 Parliamentary Procedures Workshop Board of Adjustment & Regular Council Meeting January 8, 2020 Page Twelve 14. PUBLIC INPUT Charles Stadelman, Natural Resources Board, said the Board appreciates Council's support of Sustainable Sebastian. He cited some of the Board's upcoming activities. Tracey Cole, Thomas Street, asked that the administrative hearing to consider the removal of Robert Bedea from the Natural Resources Board be reconsidered so that the public and police officer have an opportunity to provide input. Ms. Cole also asked how Council Member Gilliams could put off paying his business property taxes and make a good City budget. She also asked that council members have the integrity to admit when they are wrong. Jeff Kracht, 5700 Marina Drive, retired NYC detective, said he left NYC because it was deteriorating at a rapid rate. He said the officer was denied due process in the decision to keep Robert Bedea on the Natural Resources Board. He felt compelled to stand up for the officer tonight. Joe Scozzari, 1401 Thornhill Lane, spoke regarding the City's police force. Ben Hocker, Sebastian, said in New York, he deferred his business taxes for two years to use the money; it is a common business practice. Graham Cox, 1215 George Street, offered to help with Item 13A. Mayor Dodd asked him to contact the City Manager. Council Member Gilliams called for a point of order. Mayor Dodd said his offer to help was accepted. The City Attorney advised they needed to take a vote. Mayor Dodd denied Council Member Gilliams' request to hear more commentary from Mr. Cox. Roll call: Council Member Gilliams — aye Council Member Hill — absent Council Member Parris —aye Mayor Dodd — nay Vice Mayor Mauti - aye Motion carried 3-1 to allow Mr. Cox to proceed. Mr. Cox volunteered to find a botanist to identify the vegetation at the test spray sites. Christine Vicars, George Street, said the members ignoring the rules discussed at the beginning of the evening are putting the City at risk and said it has to stop. 15. NEW BUSINESS 19.024/20.012 A. Award Aareement to AmPro. Inc. (ITB #19-13) for the Purchase and Installation of Token Machine Operated Pickleball Court Liahtina in the Amount of $104.070.00 and Authorize the Citv Manaaer to Execute the Appropriate Documents (Transmittal. Bid Tab. References. Response. Aareement) The City Manager asked Council to consider this low bid by AmPro, Inc. 29 of 224 Parliamentary Procedures Workshop Board of Adjustment & Regular Council Meeting January 8, 2020 Page Thirteen MOTION by Council Member Gilliams and SECOND by Council Member Parris to approve an agreement with AmPro, Inc. to purchase and install lighting at the pickleball courts. It was noted the $5.00 token for an hour and fifteen minutes of light would be purchased at the Golf Course. Roll call: Council Member Parris — aye Mayor Dodd — aye Vice Mayor Mauti — aye Council Member Gilliams — aye Council Member Hill — absent Motion carried 4-0. 19.109 B. Approve Budaet Adiustment and Work Services Aareement with Eau Gallie Electric. Inc. (RFQ #19-05) for the Design Build and Purchase of an Emeraency, Generator for Citv Hall in the Total Amount of $148.129.00 and Authorize the Citv Manaaer to Execute the Appropriate Documents (Transmittal. Council Approval, Quotes, Aqreement) The City Manager stated this would allow City Hall to be functional all by itself in the case of an emergency. MOTION by Council Member Gilliams and SECOND by Council Member Parris to approve the purchase of the emergency generator for City Hall. Roll call: Council Member Parris — aye Vice Mayor Mauti — aye Council Member Hill — absent Motion carried 4-0. 16. CITY ATTORNEY MATTERS - None 17. CITY MANAGER MATTERS - None 18. CITY CLERK MATTERS - None 19. CITY COUNCIL MATTERS A. Council Member Hill — absent Mayor Dodd — aye Council Member Gilliams — aye B. Council Member Parris thanked the City Manager for his efforts with the herbicide substitution noting she has budgetary concerns. She suggested the City Manager may wish to consider other vendors. C. Vice Mayor Mauti - None 30 of 2)43 Parliamentary Procedures Workshop Board of Adjustment & Regular Council Meeting January 8, 2020 Page Fourteen D. Council Member Gilliams apologized to the City Manager and City Attorney for the previous. He noted the County is no longer using glyphosate. He asked that the following be added to an upcoming agenda: -an update on the plan for the Harbor Lights Hotel location -uncompleted projects in the CRA district for example the observation deck, Archie Smith Fish House --The City Manager advised that notices have been sent out that the City would be reviewing site plans. -have students act as legislative affairs interns for our community—It was the consensus of Council to direct the City Manager to have Human Resources work up a program -he requested a Citizens Academy to have citizens volunteer at City Hall— Mayor Dodd said he would like to see a proposal first -he requested grant writers and a lobbyist to receive funds to replace the seawalls— Mayor Dodd asked that the strategic plan be completed first. The City Manager advised that he would be requesting their budget goals and objectives in an upcoming meeting; noting a grant administrator is what the City needs Council Member Gilliams noted a parking sign near the Chamber of Commerce still needed to be changed so the public is aware the spaces are public spots. It was the consensus of Council to change the sign. Council Member Gilliams said in regard to the removal of Robert Bedea from the Natural Resources Board, he felt the judicial system took care of the allegations made. He also stated his taxes are paid every year through a system which is available to everybody. He invited the public to call his City cell phone (772) 584-0602 or contact him at dgilliams@cityofsebastian.org. E. Mayor Dodd invited the public to the two upcoming herbicide and pesticide spraying workshops to come up with solutions and costs. Mayor Dodd asked the City Attorney to review the potential Sunshine violation at the Natural Resources Board meeting held the night before. Council Member Gilliams asked him to also include the casting of the attorney rankings. 20. Being no further business, Mayor Dodd adjourned the Regular City Council meeting at 9:26 p.m. Approved at the February 12, 2020 Regular City Council meeting. Mayor Ed Dodd ATTEST. Jeanette Williams, MMC – City Clerk 4 31 of 2214 MOF SE HOME OF PELICAN ISLAND SEBASTIAN CITY COUNCIL INTEGRATED PEST MANAGEMENT SYSTEMS WORKSHOP PUBLIC NOTICE AGENDA WEDNESDAY, JANUARY 15, 2020 5:00 PM CITY COUNCIL CHAMBERS 1225 MAIN STREET, SEBASTIAN, FLORIDA Mayor Dodd called the Sebastian City Council Workshop to order at 5:00 p.m. 2. A moment of silence was held. 3. Mayor Dodd led the Pledge of Allegiance. Members Present: Mayor Ed Dodd Vice Mayor Charles Mauti Council Member Damien Gilliams Members Absent: Council Member Jim Hill Council Member Pamela Parris Staff Present: City Manager Paul Carlisle City Clerk Jeanette Williams Human Resource Director Cindy Watson Administrative Services Director Ken Killgore Public Works Director/City Engineer Ken Griffin Community Development Director Lisa Frazier Leisure Services Director Brian Benton Procurement Manager Ann -Marie Fraser Golf Course Director Greg Gardner Environmental Technician Kim Haigler Police Captain Dan Acosta Police Officer Ryan Matthews Police Officer Tomas Marine 4. WORKSHOP ITEM A. Introduction by Dr. Duane DeFreese. Ph.D.. IRL Council Executive Director of the National Estuary Proaram. Dr. DeFreese started by saying that we are not the only community wrestling with water quality concerns. It's a statewide issue that is being addressed by cities, counties and the state of Florida. 32 of 224 The goal tonight is to begin a discussion in the City of Sebastian about how to move forward with a comprehensive aquatic weed and pest management program. We will look at the options available to the city and the associated costs. Then the Mayor and Council along with the community will work together to build a plan that works from multiple perspectives. B. Discuss Options for Best Manaqement Practices Council Member Gilliams read an article from the Press Journal, written by the Executive Director of Marine Resource Council. The Council was founded 1983 and their mission is to protect the Indian River Lagoon through science, restoration and education. The Lagoon covers one-third of Florida's east coast and generates billions of dollars to our region's economy through increased property values and tourism. People are starting to realize that when our environment goes so does our economy. He emphasizes the fact that individuals can help protect and restore the Lagoon by following local fertilizer ordinances, landscaping with native plants, the use of rain barrels and by expressing their opinions to local representatives and legislators. The article stresses that we all have a role to play in bringing the Lagoon back to health. The City Manager expressed his appreciation for everybody coming and is looking forward to working together with the community to come up with a plan that will bring our waterways into a condition that we all can be proud of. Bob Stephen of 150 Concha Drive thanked the members for having the workshop. He recommends no more chemical control to regulate the flow of water. Dr. Graham Cox of 1213 George Street explained that we are dealing with three different habitats; the parks, the golf course and the water system. Dr. Cox suggested the following: • An ecological survey to identify the invasive and good plants to provide an ecological base line. The Indian River Lagoon National Estuary Program would help us with grants to cover the survey. • An educational program would help the community understand what the issues are. A website to get the communities feedback on what to do. • A Citizens Advisory Committee made up of stakeholders, residents and golfers. This committee could be also be set up under the Natural Resources Board. • Put together a clear list of alternatives with the pros and cons. • A campaign will be needed for the referendum so the community understands what they are being asked to pay for. • Clear definition of City Council's role must be established. • The hiring of an Environmental Manager to implement the plan. 2 33 of 224 • Focusing more on the management and operation of our Stormwater Park. • Make full use of the ponds and wetlands to clean up the canal system. The objective is to make a goal and an action plan that will make the canal system a natural resource asset to the city's green infrastructure. Julia Held, teacher and a mother, expressed her concerns with our children playing in the Lagoon. It is important to maintain its environmental integrity and safety. The money from the growth in this area can be used to maintain the environmental integrity. Bob Masterson of 106 Blue Herring Way, asked if an ecological survey has already been done of plants? What is the percentage of bad things the city provides to the Lagoon? Dr. DeFreese indicated that if you are going to do an integrated pest management plan, those kinds survey are going to be very specific to the locations and areas that you are managing. There is data out there but it hasn't been assembled with this use in mind, so it is going to take looking at what is available, bringing it together and seeing where the gaps are then developing a plan. The City Manager explained that the areas Council determines we are going do the excavation and dredged to re-establish the canals may not be the best place to do a study because a majority of the material may be removed. Also it depends on whether we dredge or to do littoral shelves because there will be new eco systems that develop with the best plants available to help the water quality. This is why we are looking at the overall program. Every area is different and they will have to be treated as their own system. Dr. DeFreese explained that a contribution to the Lagoon from an individual home may be minuscule but if you multiply it by 1.6 million residents then if becomes significant. The particular segment of the Lagoon in our area has a higher water quality. This is not a dense population like other areas around us. Looking at the projections of growth over the next twenty years, the two fastest growing counties are projected to be Indian River County and St. Lucie County. We have to have the best management practices because we are going to continue to grow. Diana Bolton of George Street toured the newly opened Osprey Acres Stormwater Park in Vero Beach. They are using water lettuce and other plants as bio filters. Instead of killing these plants we need to use them to work for us. Ms. Bolton suggested the Stormwater and setback ordinance should be amended to include pesticides and herbicides which would prohibit any spraying of chemicals that can drain in the ditches, ponds or swales that lead to our water system. More water testing needs done to see where the hot spots are and to identify where the pollution is coming from. A representative for the Audubon International encourages using pesticides only when necessary for spot treating the golf course as opposed to blanket spraying. He also 34 of 224 recommends conditioning the soil. It's a six step training process which can take anywhere from six months to a year to receive certification. Each new product being tested needs a base line study first. It's not just about the plant base and the green leaves that are on the surface, there is also a main portion in the water that cannot be seen. This is the area that is the base of our food chain. Also keep in mind when removing invasive plants they have to be replaced. The City Manager explained that even if we want change our ordinance to regulate pesticides we are preempted by Florida Statute 487 & 482 which does not allow us to add the pesticide regulation into our stormwater fertilizer ordinance. Ms. Bolton is requesting the setback portion of the ordinance be changed which would avoid peiGOR draining due to gravity from spilling into the waterways. Tim Glover, President of the Friends of St. Sebastian River, expressed the importance of education. The citizens need to understand what the issues are, what steps were taken in the past and what the city intends to take in the future to address the issues. He said that Indian River County along with Dr. Grant Gilmore did a test to determine how quickly the stormwater got to the Lagoon. They determined it was only a couple of hours. This is an important connection the community needs to make. Communities are educating their people by putting markers on the storm drains to remind them that all canals and waterways lead to the Lagoon. Dr. DeFreese said there is funding available. The key for the city is to decide how it's going to move forward, what their needs are then target those needs to the funding sources. He offered to help in anyway in finding the funding sources. Charles Stadelman said he has been exploring the mechanical aquatic weed control which involves floating machines. These floating machines cost $80,000 - $125,000. The salary cost of the employee would be $50,000-$65,000 plus the expense to train the employee to operate the machine. This is the cost for only one machine and one operator. This is a project the City would have to budget for. Mr. Stadelman said our neighbors around us are another factor to consider. What affect will what we do here have on everyone around us. If we raise the value of our city it would help with an important goal which is sustainable development. Having a sustainable development would erase poverty. If we raise the value of our city it will make people want to come here. He also said letting homeowners opt out of the spraying altogether is another option. They can put up a marker on their property saying not to spray. We could allow the homeowner to maintain the property themselves. Dr. Bedea expressed the importance that anything we do should be non-toxic and biodegradable. It is also important to decrease the nutrient load in our waters. The City Manager explained the cost share grant for the septic to sewer conversion in the CRA district. He said ERU's are being waived now by Indian River County but won't be for much longer so he encouraged the Community to apply. 4 35 of 224 Bob Stevens said he would like the city to make the residents aware before spaying. Dr. Bedea expressed the importance of re-examining invasive plants. They are native to Florida and plants are an important bio filter. The wetlands perform a great function; they are full of plants to clean the water. Dr. Cox volunteered to collect the ecological survey information. He will be in contact with Dr. David Cox, a biologic consultant, who is an authority on this subject. He suggested a short version of the City Managers presentation at the December 12, 2019 City Council meeting should be run on the city website. Dr. Cox introduced a chapter in a book he received a few years ago from the Institute of Food & Agricultural Science that explains Developing a Lake Management Plan. (See Attached) Dr. Cox stated the main active ingredients in the miracle product called (WOW) Whack out Weeds by Ecomight are peppermint oil, potassium sorbate, sodium chloride; most of it is water, soap, potassium benzoin and food preservatives. Larry Mendale, Carnival Terrace, suggested limiting growth to solve the problem. Julia Hearld, 718 Wimbrow, shared information about a local advocate who is selling a product called Dr. Kirchner Natural Weed Killer on Amazon. University of Central Florida did a comprehensive 6 month study on the product. This product should be also be looked at for use. Mayor Dodd thanked everyone for attending and for their input. He announced the workshop will be on Thursday, January 23' at 1:30pm. He would like everyone to encourage others who are interested to attend and give their input. He said we are in the process of gathering information. Our intent is to take all the information from the workshops and put together the beginning of a plan and apply funding to it. We want to come up with a plan that allows us to do what the city is required to do by the Department of Environmental Protection and the St John's River Management District. Once we make the major investment to clean out the canals we then have to work on maintaining them. It is important to get the community to buy in on this idea because it is going to have a major financial impact on the city. This plan has to be allocated into our budget next year. The city is committed to this plan. He said we have to look at the canals and the canal walls which are also part of the problem. We not only have to look at how we are going to spray weeds on the golf course we also have to look at how we rebuild the whole canal system. - Council Member Gilliams suggested the City Clerk place an eighth page advertisement and run it twice in the Press Journal, Sebastian River and the Hometown News to request people come to the next workshop with issues and solutions. 5 36 of 224 He said there was an article in the January 2nd Press Journal called Don't Let Agriculture Dictate Water Policy. Fellsmere has drainage ditches draining into the C54 canal. The Governor has put a task force together to address these issues. There is a Senate Bill called Clean Waterways Act (SB712). Residents need to get familiar with this bill and contact their representatives and senators to tell them know how they feel about what's going on. Dr. DeFreese said there is a companion House Bill. He will give the City Manager his comprehensive list of all the water bills regarding both the Indian River and the broader bills so he can distribute them. 5. Being no further business, Mayor Dodd adjourned the workshop at 6:23 p.m. Approved at the February 12, 2020 Regular City Council Meeting. Mayor Ed Dodd ATTEST: Jeanette Williams, MMC - City Clerk 37 of 224 CITY Lf SEAT, HOME OF PELICAN ISLAND SEBASTIAN CITY COUNCIL COMMUNITY DEVELOPMENT DEPARTMENT OVERVIEW WORKSHOP — 5:00 P.M. CRA & REGULAR MEETING WEDNESDAY, JANUARY 22, 2020 CITY COUNCIL CHAMBERS 1225 MAIN STREET, SEBASTIAN, FLORIDA MINUTES Mayor Dodd called the Regular City Council Meeting to order at 5:00 p.m. 2. A moment of silence was held. 3. The Pledge of Allegiance was recited. 4. ROLL CALL Mayor Ed Dodd Vice Mayor Charles Mauti Council Member Damien Gilliams Council Member Jim Hill (arrived 8:00 p.m.) Council Member Pamela Parris Citv Staff Present: City Manager Paul Carlisle City Attorney James Stokes City Clerk Jeanette Williams Public Facilities Director/Airport Director Scott Baker Community Development Director/CRA Manager Lisa Frazier Community Development Manager Dorri Bosworth Senior Planner Robert Loring Planner Michelle Faulkner Administrative Services Director/CFO Ken Killgore Asst. Administrative Services Director Cindy Watson Procurement/Contracts Manager Ann -Marie Fraser Environmental Technician Kim Haigler Leisure Services Director Brian Benton Engineer/Stormwater Director Ken Griffin Building Official/Fire Marshal Wayne Eseltine Police Chief Michelle Morris 5. CONVENE COMMUNITY DEVELOPMENT DEPARTMENT OVERVIEW WORKSHOP Mayor Dodd recessed the City Council meeting and convened the workshop to allow the Community Development Director to provide an overview of their department. The Community Development Director introduced herself and stated her department is constantly collaborating with other departments for the whole of the City and introduced her staff. She displayed a PowerPoint presentation. 38 of 224 Community Development Department Overview Workshop CRA & Regular Council Meeting January 22, 2020 Page Two 5:24 pm 5:34 pm The Community Development Manager (Ms. Bosworth) outlined the planning and zoning activities that the City is required to adopt also through a PowerPoint presentation. In regard to incomplete subdivisions, the Community Development Manager said after the preliminary plat approval, the developer receives his construction drawings, permits, financing and begins to land clear. At this point, he can final plat the subdivision and presale his lots however the City does not require any type of construction or performance bond while he is constructing his subdivision which is typically when the subdivision falls apart. She cautioned that the City may not want to finish subdivisions for the property owner. She continued to explain that after 18 months, the preliminary plat expires, and if the developer wasn't done, he would have to request one 12 -month extension or start the application process from scratch once he was ready. The Community Development Manager explained that prior to having a City Engineer on staff, site plans were approved by a rotation of engineers under the continuing engineering services contract. The Community Development Director said while the Land Development Code has not been significantly modified, it is constantly reviewed to make sure it is in compliance with the Comp Plan and state statute. Margaret Hasamas asked if the annexation was part of the City. Mayor Dodd advised the recent Graves Bros. annexation hasn't gotten to any of the planning processes. Council Member Gilliams stated a land designation has been assigned to the parcel. There was no further public comment and Mayor Dodd recessed the workshop at 5:37 p.m. 20.013 6. ADJOURN WORKSHOP & CONVENE REGULAR CITY COUNCIL MEETING Mayor Dodd called the Regular City Council Meeting to order at 6:00 p.m. All Council Members were present. 7. AGENDA MODIFICATIONS Modifications for additions require unanimous vote of City Council members Mayor Dodd pulled item #1 under his matters noting Mr. Bedea resigned from the Natural Resources Board. He said the Chamber of Commerce requested to pull item #16a; and asked Council to consider moving up public input since it will probably become an approved procedure change later in the meeting. Council Member Gilliams did not support moving up item #15 public input. 8. PROCLAMATIONS, AWARDS, BRIEF ANNOUNCEMENTS Presentations of proclamations, certificates and awards, and brief timely announcements by Council and Staff. No public input or action under this heading. 2 39 of 224 Community Development Department Overview Workshop CRA & Regular Council Meeting January 22, 2020 Page Three Brief Announcements Thursday January 23 - Integrated Pest Management Systems Workshop - 1:30pm Friday February 7 - Rhythm on the River - Riverview Park - 5:30p to 8pm Saturday February 8 & 9 - Craft Club of Sebastian 10am to 3pm Saturday February 8 - Four Chaplains Ceremony at Veterans Memorial Park - 3pm Wednesday February 12 - Municipal Budget Process Workshop - 5pm Mayor Dodd announced the upcoming events. 9. ADJOURN CITY COUNCIL MEETING AND CONVENE CRA MEETING Mayor Dodd adjourned the Regular City Council meeting and convened the CRA meeting at 6:02 p.m. A. MOTION by Mr. Gilliams and SECOND by Ms. Parris to approved the November 20, 2019 CRA Meeting minutes passed with a unanimous voice vote of 5-0. B. Septic to Sewer Grant Proaram i. Consider Grant Reauest for 805 Indian River Drive - Commercial (Transmittal._ ADDlication. Deeds. Unitv of Title. Tax Receiot, Invoices) The Community Development Director stated this property would like to connect to the sewer and the owner has provided all the estimated project costs; she recommended approval. The Community Development Director read her transmittal summary into the record. (See page 15) MOTION by Mr. Gilliams and SECOND by Vice Chairman Mauti to approve the grant request for 805 Indian River Drive passed with a unanimous voice vote of 5-0. ii. Consider Grant Reauest for 1724 N. Central Avenue - Sinale Familv Residence (Transmittal. ADDlication. Deed. Tax Receipt. Invoices) The City Manager stated the County has agreed to waive the ERU fee for the time being and urged CRA property owners to submit their applications for this additional cost savings. MOTION by Chairman Dodd and SECOND by Mr. Gilliams to approve the grant request for 1724 N. Central Avenue passed with a unanimous voice vote of 5-0. iii. Consider After the Fact Grant Reauest for 1620 N. Central Avenue - Multi Familv Residence (Transmittal. E -Mail, Application. Deed, Tax Receipt. Permit CODieS. Invoice) The City Manager stated staff did not recommend the property owner pursuing the grant after the work was completed but this is the owner's opportunity to appeal to the CRA Board. 40 of 224 Community Development Department Overview Workshop CRA & Regular Council Meeting January 22, 2020 Page Four Nancy Vee representing property owner Tom Vari, stated he was one of the first property owners that hooked up to the sewer and was not aware the application had to happen before the work was done. The Community Development Director stated the work was completed in July and Mr. Vari started the grant request in September. (See page 35) The Community Development Director outlined the program's application process and asked if the board was to approve this request, how far back the board would like to go in approving future "after the fact" requests. The City Attorney advised the estoppel process doesn't apply to governmental entities. MOTION by Mr. Gilliams and SECOND by Vice Chairman Mauti to approve the grant request for 1620 N. Central Avenue passed with a unanimous voice vote of 5-0. 20.014 C. Provide Direction Reaardina the Harbor Liahts Motel Site — 1215 Indian River Drive (Transmittal, Code, Aerial, Survev) The City Manager asked Council what they would like to do with the parcel with the hotel on it as there are two individuals interested in making proposals on it. Ms. Parris noted the building was a historical landmark and there was an individual interested in using the renovated property in the audience. Mr. Gilliams said he would like to hear from the community. Mr. Hill noted the reason the City bought the property was to protect the east side, then determine what to do on the west side. He suggested they get the property assessed. Vice Chairman Mauti would like to see the property preserved but they should consider the needs of the future. Chairman Dodd said the property is a long-term, positive asset for the City, noting the City owns the property the Chamber of Commerce is sitting on so if it is combined with the east side, west side and the Main Street boat ramp it is very attractive and could be used in the future to support more aquatic -type park services. It said it is a great advantage for the City to own the property; it should be determined if there is asbestos in the building and if it is indeed on the National Register. It could be converted to a passive park. Dan Johnson, founder of Hidden Sanctuary Village, a domestic violence shelter that serves men, women, and pets, said they can begin to take in victims utilizing this property. Chairman Dodd asked him to provide background information to the City Manager so he might bring a request for assistance to City Council. Ms. Parris said the organization has the financial ability to renovate the building. The Community Development Director stated the building does not have sewer, water, or central air. Mayor Dodd said the building probably wouldn't pass an asbestos test. 4 41 of 224 Community Development Department Overview Workshop CRA & Regular Council Meeting January 22, 2020 Page Five Ben Hocker said the City bought the property to protect the view of the river; at the last candidate's forum, a former Council Member stated the City was looking to sell the property. He requested a workshop to consider the property as well as the triangle property after the Public Works Compound is relocated. Lisa Boisvert, Sebastian Highlands, said the property is part of the character of Old Sebastian which is disappearing. She suggested making it an annex of the museum to preserve Old Sebastian. Andrea Ring said she was part of a historic landmark renovation in Virginia and warned the renovation will be very expensive. Mr. Gilliams suggested that they salvage what can of the building and then use it as a business incubator so if the business does well they can fill one of empty business slots throughout the community. Ms. Parris asked if it was large enough to incorporate Sanctuary Village and an educational/historical concept such as Hurricane Harbor. Chairman Dodd stated the consensus was that they need more information to include: an appraisal with the building; an appraisal without with building; an estimate to refurbish the building; and asbestos test to reopen the building; how much would it cost to get water and sewer to the building. The City Manager stated the Public Facilities Director had already begun to gather information on the asbestos testing. 10. Chairman Dodd adjourned the CRA Meeting at 6:40 p.m. and reconvened the Regular City Council Meeting. 11. CONSENT AGENDA 20.015 A. Approve Road Closure for HALO Rescue 5K Run on January 25, 2020 from 7:15 a.m. to 9:00 a.m. (Transmittal, Application, Route Map, Receipts, IRC Approval) 20.016 B. Approve Alcoholic Beverages for the Murray Family Event at Yacht Club on January 25, 2020 from 3:30 p.m. to 8:30 p.m. — Permittee DOB Verified (Transmittal, Application, Receipt) 20.017 C. Approve Alcoholic Beverages for the Berchtold Family Event at Yacht Club on May 9, 2020 from 11:00 a.m. to 6:00 p.m. — Permittee DOB Verified (Transmittal, Application, Receipt) MOTION by Council Member Hill and SECOND by Council Member Gilliams to approve consent agenda items A -C passed with a voice vote of 5-0. 42 of 224 Community Development Department Overview Workshop CRA & Regular Council Meeting January 22, 2020 Page Six 12. COMMITTEE REPORTS & APPOINTMENTS City committee reports and Council Member regional committee reports. No public input or action except for City committee member nominations and appointments under this heading. Council Member Gilliams stated he attended the Affordable Housing Committee meeting earlier in the day where it was recommended that County staff review the multi -family zoning regulations and identify opportunities to limit and allow uses in those zoning districts to reserve multi -family areas to make recommendations to the County Commission. The Committee also recommended an increase an affordable housing density bonus allowance if the data supports the bonus percentage by increasing the number of units in RM 6, RM 8, and RM 10. Council Member Gilliams invited the City Manager to meet with the Committee's chair to write a letter to the legislators. Mayor Dodd said he would like to see affordable housing be discussed during the Comp Plan update. 20.018 A. Police Pension Board of Trustees (Transmittal, Application, Code, List) i. Interview, Unless Waived, Submit Nomination for One Civilian Position — Term to Expire January 2024 Mayor Dodd announced that Christine Vicars resigned leaving an additional opening on the board. Council Member Hill made a MOTION with a SECOND by Mayor Dodd to appoint Mr. lovino to the Police Pension position. As a law enforcement official, Mr. lovino stated he would be a good conduit between the law enforcement and the civilian community. Council Member Gilliams suggested that Council may want to advertise a little longer to make sure there are no other options before appointing another law enforcement official in the civilian position. The Administrative Services Director, who is the Police Pension Board's Administrator, stated the pension board members look to the interest of the police officers. Mayor Dodd stated he didn't see any conflict with Mr. lovino being a law enforcement officer. Roll call to appoint Mr. lovino Motion carried 3-2. 13. PUBLIC HEARINGS - None Council Member Parris — aye Mayor Dodd — aye Vice Mayor Mauti — nay Council Member Gilliams — nay Council Member Hill — aye 43 of 22� Community Development Department Overview Workshop CRA & Regular Council Meeting January 22, 2020 Page Seven 14. UNFINISHED BUSINESS 20.011 A. Discuss Citv Attornev Candidates, Make Selection, and Direct Staff to Neqotiate a Contract (Transmittal) Mayor Dodd proposed that they have the City Clerk take a roll call vote for a candidate and if they receive three votes for one candidate then they have a new attorney; if they don't have three votes, members can make brief comments and take another vote. If they cannot get three votes, then other motions could be proposed. Roll call: Vice Mayor Mauti — Manny Anon Council Member Gilliams — Paul Gougelman Council Member Hill — Manny Anon Council Member Parris — Paul Gougelman Mayor Dodd — Manny Anon Manny Anon was selected to work with the City Manager and CFO to negotiate a contract to come back to Council for approval. MOTION by Mayor Dodd and SECOND by Council Member Hill to appoint a Contract Committee of the City Manager, Chief Financial Officer and Mayor. Council Member Gilliams asked for a backup plan in case the first candidate doesn't come through. The City Attorney advised they have selected a candidate, if for some reason Mr. Anon or Council doesn't come to terms with a contract at that point you would go to one of the others or start the process all over again. The second candidate would only be contingent if there isn't a contract. He said Charter Officer contracts are a matter of salary, Mr. Anon is aware of the range that the position was advertised at. AMENDED MOTION by Council Member Gilliams and SECOND by Council Member Parris to have a second choice. Roll call on the amendment: Council Member Hill — nay Council Member Parris — aye Mayor Dodd — nay Vice Mayor Mauti — aye Council Member Gilliams - aye Motion carried 3-2. Roll call for the second choice: Council Member Parris — Paul Gougelman Mayor Dodd — Gary Oldehoff Vice Mayor Mauti — Paul Gougelman Council Member Gilliams — Gougelman Council Member Hill — Gary Oldehoff Paul Gougelman was selected as the second choice. 44 of 22� Community Development Department Overview Workshop CRA & Regular Council Meeting January 22, 2020 Page Eight Roll call for the original motion to have a contract committee consisting of the City Manager, Chief Financial Officer and Mayor: Council Member Gilliams — nay Council Member Hill — aye Council Member Parris — nay Mayor Dodd — aye Vice Mayor Mauti — aye Motion carried 3-2. 20.010 B. Consider Liftina the Moratorium on the Spravina of Herbicides and Pesticides at the Citv Athletic Fields and Surroundina Common Areas (Transmittal, Memo) 7:20 pm The City Manager stated there is a problem with fire ants and mole crickets at the ballfields and parks. The Leisure Services Director said since he started with the City in December 2018, he has seen a big improvement with the ball fields at the Barber Streets Sport Complex with the two spray -certified employees who are dedicated to the maintenance of the park however since the moratorium they are starting to see issues with mole crickets, fire ants, and web worms. He said the fire ants have made Friendship Park unsafe at this time. Public Input Clesson Hammond, Columbus Street, said he is worried that the moratorium will lead to other parks being closed down, and asked why the two who are worried about the parks being closed vacuum up the ants so the parks can be open for kids. Lisa Boisvert asked why they were addressing this now instead of tomorrow at the workshop where a solution might be revealed. Mayor Dodd clarified that the workshop will not produce a solution but gather input. Ms. Austin said killing weeds is not the same as killing fire ants; she wouldn't send her kids to a field that has been sprayed. Chris Nunn, 709 Jordan Avenue, said he was representing a bunch of people that have kids, agreed that spraying for weeds is different than bugs. He supported treating the parks so the kids can get back to using the parks. Graham Cox 1213 George Street, said two basic elements of an integrated pest management plan is education and citizen involvement. He would be willing to put together a presentation of the products recommended by the Leisure Services Director once he knows what they are. Rene Boisvert asked if anyone looked to see if the chemicals staff wants to use are safe. Ben Hocker, Sebastian, said this started with the weed problem in waterways, now they are talking about pesticides. 45 of 224 Community Development Department Overview Workshop CRA & Regular Council Meeting January 22, 2020 Page Nine Cathy Brothers, 569 Ray Street, encouraged Council to reconsider the moratorium so the kids can get out and play. Dr. Robert Bedea said the fire ants could be treated with white rice and offered to donate a 50 Ib. bag. Bob Stephen said they could spot treat the ants by feeding them something that will make them eat each other and then the nest self-destruct. He suggested hot water with vinegar will kill the nest; if the mowers will stake flags, volunteers can treat the nests. Amy Beenblossom suggested having high school students surround the anthill with molasses and spray orange oil on top which kills the ants. John Christino said he was floored that the City will not treat the fire ants. He asked Council to allow the City Manager to get the parks under control. He asked if anyone looked at the size of the ballfields, 1,000 volunteers would be needed to apply the suggested solutions. He asked for everyone to stop tying the City Manager's hands. Council Discussion Council Member Gilliams said he has visited all the parks and agrees there is a problem at Friendship Park. He said the purpose of the moratorium is to speed things up. He said he was willing to shut the park down until they solve the problem and would not support lifting the moratorium. The Leisure Services Director discussed alternatives. Council Member Hill said glyphosate was the issue; the EPA and the state of Florida have stated these chemicals are safe in the manner that we use them, which are the goals of best management practices; people glom onto the science that agrees with their narrative. To give the City Manager a chance to try one of the alternative products, he recapped his motion to stop the use of glyphosate so the City Manager could test an alternative product until his report was ready but at the meeting that he made the motion, City Council banned everything having no idea of what pesticides and herbicides are used to make the parks safe and clean. He said best management practices maintain the City's assets in a way that is safe and effective. Council Member Hill said there will be those that deny the science and say the chemicals cause cancer but he bought a light for his boat that had a cancer warning; a ceramic toilet for his house that had a cancer warning on it. There is something in between dangerous poison and dumping stuff on the ants which is common sense, best management practices and real science that has been done by the universities and environmental protection agencies. It is not a good management practice to close the park because we are worried about chemicals that the scientists tell us are safe. He made a MOTION to lift the moratorium, and continue the ban on glyphosate using a product that the City Manager believes is safe. The motion died for lack of a second. 46 of 224 Community Development Department Overview Workshop CRA & Regular Council Meeting January 22, 2020 Page Ten Vice Mayor Mauti asked him if it would be best to have one more meeting to come up with a best practice method and take it from there. Council Member Hill said he was not opposed to that and noted the California management program recently suggested to them included the use of glyphosate. Vice Mayor Mauti suggested they should continue what they started. Council Member Hill said they should go forward but it is the job of the Leisure Services Director to move forward safely. Mayor Dodd stated there was no way that at the end of the next day's workshop they would be able to recommend what to use on the fire ants or come up with a best management system. He asked the Leisure Services Director if he would be able to salvage the fields for two more weeks. The Leisure Services Director said staff would have to play catch up at the Barber Street Sports Complex fields but he could not allow Friendship Park to be open under the current conditions. MOTION by Mayor Dodd and SECOND by Council Member Hill to lift the moratorium and allow the Leisure Services Department to treat the fire ants at Friendship Park to get it back into playable use. Roll call: Mayor Dodd — aye Vice Mayor Mauti — aye Council Member Gilliams — aye Council Member Hill — aye Council Member Parris — aye Motion carried 5-0. Mayor Dodd asked the Leisure Services Director to look for alternatives to treat the ballfields. Mayor Dodd called for a recess at 8:00 p.m. and reconvened the meeting at 8:06 p.m. 15. PUBLIC INPUT Bob Auwaerter, Vice Mayor of Indian River Shores and Chairman of the Indian River County MPO, requested their support of Senator Mayfield's bill SB 676 which will force the Florida Department of Transportation to set up safety regulations for the upcoming Virgin Train crossings. Mr. Auwaerter explained that Indian River County has an agreement with the Florida East Coast Railway that the County is responsible for safety features to which Virgin Trains claims that also applies to them however the County has filed a lawsuit that they will not be responsible for Virgin Train's safety measures. Clesson Hammond, Columbus Street, said if once a Council Member uses their personal Facebook and mentions the City's business, it becomes a public post. He asked if the City could look into who made the post that Council member Parris claims she didn't make and if it could come back. Bob Stephen, 150 Concha Drive, said as an environmentalist they have been misled. Ben Hocker said a Council Member's personal Facebook page is their personal life. 47 of 2)T Community Development Department Overview Workshop CRA & Regular Council Meeting January 22, 2020 Page Eleven Mr. Hocker said in his thinking the freight transportation will be more profitable than the commuter trains and noted there are no weeds in the tracks; the City might want to look into what they are spraying on the tracks. Christopher Nunn, Sebastian, said there are 119 days until the citizens can recall Council Member Gilliams and Parris. He described an incident he experienced with one of the Council Members until a police officer stopped him. Brian Burns, said he is a retired railroad locomotive inspector who said there is a push for the freight trains because there are too many truckers on the highways tearing up the roads. He said trains have automatic sensors to indicate if the fence is up or down. The railroad system needs to come to the County. Mr. Burns also said affordable housing is needed in Sebastian; and everybody on Council needs to get along because nothing is getting done. Dr. Robert Bedea said we have to agree to disagree and to work together as best we can. He said the federal organizations have failed the people in many cases. The community can decide our own best practices. The City Attorney advised the use of social media is a new area of the law that is developing on a regular basis. There has been a lot of discussion within attorneys as to how and when an official's public page can turn into a private page. The Attorney General has issued an opinion that you cannot be a private citizen while being in office --you can't escape it—the substance controls the communication. He said the safest approach is to keep city business on city pages and personal business on personal stuff. If someone sends you a message to your private e-mail, make a copy or screen shot and send it to the Clerk. Social media is a developing area of the law. 16. NEW BUSINESS 20.019 A. Consider the Sebastian River Area of Chamber Commerce's Request to Sell Alcohol at their Rhvthm on the River Concert Series and Receive Reimbursement for Two Concerts on Each Date Reauested (Transmittal, Current Aareement, Application, E -Mails, Map) This item was pulled from consideration under agenda modifications. 20.020 B. Clarification on the Motion for the hirina of the Annexation Review Consultant (Transmittal. Minutes Excerpt, Proposal) Mayor Dodd reminded Council that they are under gag order related to the annexation and the item pertains to continuing with Kimley-Horn or hiring a consultant. Vice Mayor Mauti said he would like to go forward with a RFP. Council Member Parris said there is negotiation between the City and County that needs to be addressed. Mayor Dodd advised the Chapter 164 process is not part of the RFP. He said he was in favor of continuing with Kimley-Horn. 48 of 2241 Community Development Department Overview Workshop CRA & Regular Council Meeting January 22, 2020 Page Twelve 8:43 pm Vice Mayor Mauti said the public was upset that there was lack of transparency on the annexation; he would like to show what happened, how it happened, how the vote went down, and make sure city did everything correctly; because Kimley-Horn is known to the City, there could be said, "Here's a cloud of impropriety." Mayor Dodd asked Council if they felt Kimley-Horn wouldn't be able to show there weren't any improprieties. Council Member Gilliams asked if they set this in motion and the judge remands it back to Council for a rehearing—where would they be with Kimley-Horn; or what if the judge rules in favor of the City, and this in process, where would they be? The City Manager said the motion was to look at all of the documents and see if Mr. Schulke's documents correlate with staff's documents; no matter what the judge decides he said a second set of eyes would be good. He requested direction on how to proceed. Mayor Dodd noted the third party document would be valuable in either direction. Council Member Hill said if the review was important, they should go with Kimley-Horn so a document would be produced timely and relevant to the Chapter 164 process. MOTION by Mayor Dodd and SECOND by Council Member Hill to move forward with the review by Kimley-Horn. Roll call: Vice Mayor Mauti – nay Council Member Gilliams – nay Council Member Hill – aye Council Member Parris – nay Mayor Dodd – aye Motion failed 3-2. Given the unsuccessful motion, Mayor Dodd announced the City Manager was to procure a RFQ from a new consultant. 20.021 C. First Readina Ordinance No. 0-20-01 – Providina for Electronic Reportinq of Fire Prevention and Safetv Inspections – Set Public Hearing for February 12, 2020 (Transmittal, 0-20-01) AN ORDINANCE OF THE CITY OF SEBASTIAN, FLORIDA, AMENDING ORDINANCE 0-19-06; FIRE PREVENTION AND PROTECTION; RENAMING ARTICLE II; ADDING NEW SUB SECTION (b) TO SECTION 42-28, TO REQUIRE ALL FIRE PROTECTION SYSTEM REPORTING BE SUBMITTED ELECTRONICALLY, AS SPECIFIED; RENUMBERING SUB SECTIONS (c) (d) IN SECTION 42-28; PROVIDING FOR SEVERABILITY, PROVIDING FOR CODIFICATION, PROVIDING FOR CONFLICTS, PROVIDING FOR SCRIVENERS ERRORS, AND PROVIDING AN EFFECTIVE DATE. The City Attorney read the title of Ordinance No. 0-20-01. The Fire Marshal stated part of the duties of the Fire Prevention Office is to perform testing on fire systems on a regular basis and this ordinance will allow the inspection reports be uploaded and be readily available for review and allow deficiencies be corrected in a timely manner. He said the Construction Board unanimously approved the ordinance. 49 of 224 Community Development Department Overview Workshop CRA & Regular Council Meeting January 22, 2020 Page Thirteen MOTION by Council Member Hill and SECOND by Vice Mayor Mauti to approve Ordinance No. 0-20-01 on first reading with a unanimous voice vote of 5-0. The second reading and public hearing will be held February 12, 2020. 20.022 D. First Readina Ordinance No. 0-20-02 — Reaarding Floodplain Management — Set Public Hearina for February 12, 2020 (Transmittal, 0-20-02, E -Mail) AN ORDINANCE BY THE CITY OF SEBASTIAN, FLORIDA AMENDING THE CODE OF ORDINANCES CHAPTER 46 FLOODS TO MAKE MODIFICATIONS TO BRING THE REGULATIONS INTO CONFORMANCE WITH THE MOST CURRENT FEMA -APPROVED, FLOODPLAIN MANAGEMENT ORDINANCE FOR FLORIDA COMMUNITIES THAT IS COORDINATED WITH THE FLORIDA BUILDING CODE; PROVIDING FOR APPLICABILITY AND SEVERABILITY; PROVIDING FOR CODIFICATION, PROVIDING FOR CONFLICTS, PROVIDING FOR SCRIVENERS ERRORS, AND PROVIDING FOR AN EFFECTIVE DATE. The City Attorney read the title of Ordinance No. 0-20-02. The City Manager said this was required to be in compliance with the community rating systems which helps residents with their insurance and recommended approval. MOTION by Council Member Hill and SECOND by Mayor Dodd to approve Ordinance No. 0-20-02 on first reading with a unanimous voice vote of 5-0. The second reading and public hearing will be held February 12, 2020. 20.023 E. Consider Revisions to Resolution No. R-15-10 — City Council Meetina Procedures (Transmittal. Draft R-20-02. R-15-10) A RESOLUTION OF THE CITY OF SEBASTIAN, INDIAN RIVER COUNTY, FLORIDA, RESCINDING RESOLUTION NO. R-15-10; ESTABLISHING THE DATES AND TIMES FOR CITY COUNCIL MEETINGS AND WORKSHOPS; REVISING START AND END TIME; ADOPTING ROBERTS RULES OF ORDER; PROVIDING FOR PROCEDURES FOR AGENDA PREPARATION, AGENDA FORMAT, AGENDA MODIFICATIONS, PUBLIC INPUT, PUBLIC HEARINGS, AND VERBATIM TRANSCRIPTS; PROVIDING FOR REPEAL OF RESOLUTIONS OR PARTS OF RESOLUTIONS IN CONFLICT HEREWITH; AND PROVIDING FOR AN EFFECTIVE DATE. The City Attorney read the title to Resolution No. R-20-02. Mayor Dodd announced the only change was on page 149 where Public Input was moved to follow Proclamations, Awards, Brief Announcements. There were no other changes recommended. MOTION by Mayor Dodd and SECOND by Council Member Gilliams to approve Resolution No. R-20-02 passed with a voice vote of 4-1. 17. CITY ATTORNEY MATTERS 20.024 A. The Sunshine Law The City Attorney stated he was asked to review the Natural Resources Board meeting where two Council Members attended. He said that he watched the video and wanted to clarify when an official approaches the podium and states, "I'm here as a private citizen ..." that official cannot step out of the public official role to comply with the Sunshine Law. He advised that when two members want to attend another board's meeting to discuss things, that meeting should be noticed as a "joint meeting." 50 of 2)4 Community Development Department Overview Workshop CRA & Regular Council Meeting January 22, 2020 Page Fourteen He said at the Natural Resources Board meeting, the things Council Member Parris said were innocuous and while Council Member Gilliams got more into the business side, there was no back and forth conversation with another Council Member. He said there is an Attorney General's Opinion (AGO) that if an elected official puts something out there, one-way, as long as nobody responds, it's not a Sunshine violation. He cautioned that while he did not find any Sunshine violation with the Natural Resources Board meeting, it is ultimately up to the State Attorney to pursue anything. In regard to whether there was a secret ballot that took place when the Council Members chose the short list for attorney candidates, generally speaking, the AGO states staff cannot hand out slips of paper that are counted on the dais and then disposed of. The opinion states written ballots are okay but they have to have the name of the Council Member and the ballot has to be retained which was the case. In his opinion, there was no violation with the ballot either. 18. CITY MANAGER MATTERS - None 19. CITY CLERK MATTERS - None 20. CITY COUNCIL MATTERS A. Council Member Parris commended staff for the grant writing they are doing. She said contrary to other Council's opinions, she believed the citizens are educated in voicing their opinions on the glyphosate research; she applauds the trial of the Whack Out Weeds herbicide and she invited people to have coffee with her to form their own personal opinion of her. B. Vice Mayor Mauti encourage everyone to support Senator Mayfield's bill regarding the high speed train. C. Council Member Gilliams — None D. Council Member Hill said he is very appreciative and proud of staff. He stated he has seen difficult times before for staff; the rough waters will smooth out. He thanked staff for everything that they do. He stated he voted no on moving the public input which seems to be needed now and he apologized to the public for the constant interruptions. E. Mavor Dodd i. Reconsider motion passed at December 11, 2019 meetinq to not hold a hearina for Mr. Bedea and his appointment to Natural Resources Board This item was pulled from consideration due to Mr. Bedea's resignation. 144 51 of 22 Community Development Department Overview Workshop CRA & Regular Council Meeting January 22, 2020 Page Fifteen ii. Direct the Citv Manager to write a letter to the Indian River Countv Deleaation in ooDosition of SB1128 which will take awav local aovernment abilitv to regulate short term rentals. Mayor Dodd stated SB1128 preempts local government's ability to regulate short term rentals. He said the City has a good policy in place that verifies the landlord is taking care of the safety aspects. He proposed that the City Manager to write a letter to the Indian River Delegation opposing SB1128. Vice Mayor Mauti asked that the City's ordinance be reviewed so that what is happening in Sedona, Arizona where developers are driving the affordable rentals out of the area and building minor subdivisions for the sole purpose of making rental communities doesn't happen in Sebastian. It was the consensus of Council to write a letter opposing SB1128 iii. Direct the Citv Manaaer to write a letter to the Indian River County Deleaation in ognosition of SB998 and SB818 which will take awav local aovernment abilitv to reaulate mobile home reconstruction and accessory structures. Mayor Dodd said SB998 would take away local government's ability to regulate accessory structures. It was the consensus of Council to oppose the bill and preserve their local government control. iv. Discuss SB 676 which will provide safety reaulation to high-speed rail. Mayor Dodd said there are some provisions in SB676 that would require safety measures on the part of the railroad through their path through the City. It was the consensus of Council to support this bill by Senator Mayfield. Mayor Dodd also thanked staff for all the hard work that they do. 21. Being no further business, Mayor Dodd adjourned the Regular City Council meeting at 9:15 p.m. Approved at the February 12, 2020 Regular City Council Meeting Mayor Ed Dodd ATTEST Jeanette Williams, MMC - City Clerk 52 of 2)4 cm Cf �_" HOME OF PELICAN ISLAND SEBASTIAN CITY COUNCIL INTEGRATED PEST MANAGEMENT SYSTEMS WORKSHOP PUBLIC NOTICE AGENDA THURSDAY, JANUARY 23, 2020 - 1:30 PM CITY COUNCIL CHAMBERS 1225 MAIN STREET, SEBASTIAN, FLORIDA Mayor Dodd called the Sebastian City Council Workshop to order at 1:31 p.m. 2. A moment of silence was held. 3. Mayor Dodd led the Pledge of Allegiance. 4. Members Present: Mayor Ed Dodd Vice Mayor Charles Mauti arrived at 1:41 pm Council Member Damien Gilliams Council Member Pamela Parris Members Absent: Council Member Jim Hill Staff Present: City Manager Paul Carlisle City Clerk Jeanette Williams Public Work Director/City Engineer Ken Griffin Administrative Services Director Ken Kilgore Leisure Services Director Brian Benton Golf Course Director Greg Gardner Procurement Manager Ann -Marie Fraser Senior Planner Robert Loring Zoning Technician Michelle Faulkner Public Facilities Director/Airport Director Scott Baker Police Officer Donald Hart 5, WORKSHOP ITEM A. Introduction by Daniel Kolodny, Chief Operating Officer of the Indian River Lagoon National Estuary Program and the Indian River Lagoon Council. Mr. Kolodny introduced himself and said he works directly for Dr. DeFreese and he is filling in for him today as mediator. He manages the contracts, grants and the financial aspects for the National Estuary Program. He has a Bachelor's Degree in Marine Biology & Agriculture he also has a Master's Degree in Environmental Resource Management from Florida Technical College. 53 of 224 Mr. Kolodny thanked the Mayor and Council for having the workshop and said the goal of the workshop is for the Community to provide input and suggest ideas. B. Discuss Options for Best Management Practices Mayor Dodd conveyed the overall objective is for the City to put together an Integrated Pest System Plan that covers the treatment of the canals, the parks and the golf course. Dr. David Cox who is the Superintendent of Indian River Soil & Water Conservation District and Board Member also a Member of the Audubon and Pelican Island Board offered a few names of experts available to help with the Plan. Christine Kelly-Begazo, County Extension Director of the Institute of Food & Agricultural Sciences who is an expert at Integrated Pest Management. St. Johns River Management District has done a lot of canal work and coastal stream clean up over the last 20 years. Chuck Jacoby, Indian River Lagoon Council Member, is available for consultation. Eugene Wolff of Wimbrow Drive shared his 23 years of experience living on the Collier Canal. He has witnessed four different methods for removing weeds from the canal: • Spraying Method where the material is being applied in a flooding fashion which over soaked the plant and the material would end up in the water. Another spray method used was line application where material was applied through an open pipe into the water. • Wader Method where residents went into the canal in waders to remove weeds. • Boat Method where residents went out in boats and pulled weeds off the canal walls. • Spillway Method is when it rains the canal fills up and forces all the material to go over the spillway. He said both of the spraying methods are inefficient and very expensive. If the spray method is used there needs to be a specific target control. Steve Jaconski of County Lane lives by a retention pond that is overgrown by duckweed. He suggested using Asian grass eating carp. The City Manager said there is certain vegetation that carp won't eat and also carp have to be contained. The stormwater ponds may be a candidate for the carp but that requires a permit from the Florida Fish & Wildlife Commission. Diana Bolton suggested an organic solution for fire ants which was studied at Mississippi State University, North Carolina State University and Texas A&M, It's called D-Limonene, commercially known as Orange Guard or Monterey Garden Insect Spray and it's made from citrus peels. 2 54 of 224 Ms. Bolton said the Audubon Society recommends putting plants along shoreline. She gave an example of residents setting up a water pond at home; she cited a brochure stating a certain amount of plant coverage is necessary to prevent algae. Dr. Graham Cox suggested names for the City Manager to contact when looking at doing Whack out Weeds (WOW) testing: Dr. David Cox and Jane Schnee who are both familiar with local plants. Dr. Cox provided a copy from the Institute of Food and Agricultural Sciences website stating their recommendation for treating fire ants. It would also be helpful if we asked our neighboring governments what they do for the fire ants. Dr. Cox said the Board of County Commissioners had presentations by the County department heads regarding the use glyphosate. The department heads suggested having staff level discussions with the local agencies regularly. Bob Harkins said he remembers that there was wild life on the canal before they started working on the canals and now he doesn't see any wild life. He blamed it on spraying. He suggests getting a pontoon boat and go up and down the canal a couple times a month to clean up the growth. Council Member Parris asked Mr. Wolff his idea of which method should be used removing the weeds from the canal. Mr. Wolff responded that dredging was not the answer; training and the use of some type of sophistication would be better. If the method is going to be spraying then the equipment should have an adjustment to control the droplet size. Patty Augustyn of 685 Wimbrow said she is not in favor of using Round Up or any other pesticides. Her business for the past 25 year has been drinking water filtration. She helps manufactures make carbon block filters to take out of the water all of the things we put in. Kevin Kirwin, Parks Director for Indian River County, said the only thing in their Parks they've been applying is a minimal amount of Top Choice to treat fire ants. Mayor Dodd asked Mr. Kirwin what they do for weed control in their ballfields. Mr. Kirwin said they cut at least twice a week with a mulch mower. They only use fertilizer if there is a shock event like a deep freeze or an overspray of salt water. They use a natural fertilizer called Milorganite. Rich Szpyrka, Public Works Director for Indian River County, said they are experimenting with dish soap, vinegar and salt. It was recommended by the Agriculture Department from the University of Florida. They are using it in the stormwater areas, the median islands and around the facility to control weeds. They found it to be 50% effective. They to try to control the weeds the best they can by hand but they can't keep up so they are use the herbicide Tribune to help. They do not spray any ditches, they are cleaned mechanically. They use mechanical equipment on the truck hoes and rubber tired hoes and on the Gradall excavator. Beth Powell, Assistant Director of Parks and Conservation Resources for Indian River County, explained that she's in charge of Conservation Area Land Management. She recommends segmenting the Integrated Pest Management Plan for the different application needs. She said they 3 55 of 224 do use herbicides as a regular part of their Integrated Pest Management for conservation areas. One important strategy she recommends is to address a problem before it gets out of hand. She further explained in the conservation area, the herbicide that is used is specific to the species being treated. The same species is treated over a period of time with the goal to eradicate the species and after the species is eradicated the use of that herbicide is no longer necessary. Ms. Powell suggested making a list of the species needed to manage. One Species that is a priority is the Old World Climbing Fern; it is an invasive vine which is prevalent in our area due to the lack of hard freezes. This fern proliferates in canal systems and when it gets out of hand it can be very problematic. Identifying what you are controlling and why you are controlling it is an important aspect to each of the segments. Ms. Powell said they don't use any organic chemicals. She said it is important to use the herbicides according to its label. She only uses the herbicide that is listed on the label for the specific plant that is being treated. The County's Best Management Practices are provided by the University of Florida. She said the pilot project utilizing goats is very expensive and time consuming. They learned that goats are browsers not grazers. They do not eliminate the vegetation because they only eat what is at the height of their mouths. The University of Florida after 20 years of research has started releasing the Brazilian Pepper Thrips. Melaleuca weevil and the beetle have also been released and they have had very good results with both. When cutting and treating the Melaleuca stands it helps with regrowth and it delays spraying for a long period of time. Ms. Powell recommends doing two assessments on the canal system. One assessment should be for the management and function of the canal. The second assessment should be to find out what invasive species could potentially spread outside the area. Ms. Powell shared a few ways to get help identifying invasive species: • Florida Fish and Wildlife Commission has an on-line app with all of the invasive species. This app is helpful for identify different invasive species. • The Institute of Food and Agricultural Sciences can identify any plant either by a picture or by looking at a cutting of the plant. • University of Florida has a link on their website of all the invasive species. Mayor Dodd thanked everyone for their input and said the next step is for the City Manager to gather the information and start to put together a preliminary document. After that is done the Council and the Community will figure out how to apply these ideas to each of the areas within the City. The Mayor made it very clear that the City will create an Integrated Pest Management System Plan to ecologically solve problems. Council Member Gilliams asked the Finance Director for the total amount in stormwater management account and for the total brought in annually from the taxation on the stromwater fees. The Finance Director responded with a Stormwater account balance of $700,000 - $750,000 and approximately two million in taxation on the stormwater fees. 6. Mayor Dodd adjourned the workshop at 3:49 p.m. 4 56 of 224 an �� SE -FtA HOME OF PELICAN ISLAND CITY COUNCIL AGENDA TRANSMITTAL COUNCIL MEETING DATE: February 12th, 2020 AGENDA ITEM TITLE: Utility Easement for Sewer connection at the Sebastian Community Center RECOMMENDATION: Authorize the Utility Easement as it relates to the installation of a sewer connection located along Madison Street to service the Community Center. Authorize the City Manager to execute the appropriate documents. BACKGROUND: The City will be converting the existing septic at the Community Center to gravity sewer. The connection along Madison St. requires the septic line to cross a separate piece of property owned by the City of Sebastian that runs alongside Madison St. The City currently owns both pieces of property as shown in the attached map. IF AGENDA ITEM REOUIRES EXPENDITURE OF FUNDS: Total Cost: NIA Amount Budgeted in Current FY: NIA Source of Funds: NIA Administrative Services Department/CFO Review: ATTACHMENTS: 1. Grant of Easement Form 2. Sewer Connection Map 3. Indian River County As -Built Survey City Ma ger Autho on: Date: � /I /',��12_0 57 of 224 After recording return to: City of Sebastian Community Development Department 1225 Main Street Sebastian, Florida 32958 GRANT OF EASEMENT The undersigned Grantor, The Citv of Sebastian, Florida , whose address is 1225 Main Street, Sebastian Florida 32958 , is the owner of the following described real property located on vicinity of the Northwest corner of the intersection of North Central Avenue and Madison Street in the City of Sebastian, Indian River County, Florida: No address is currently assigned to this property, Ocean Breeze Heights Subdivision, Plat Book 2-7, Lots 9 & 10, Block 2, & including a portion of abandoned alley abutting said lots per City of Sebastian Ordinance #0-92-10 Grantor hereby grants and conveys to the City of Sebastian, a municipal corporation, for the use and benefit of current and future owners of other lots in the same block of the Ocean Breeze Heights Subdivision for the installation of utilities by any and all public utilities, the City of Sebastian, and Indian River County. The easement is fifty and 7/10 feet (50.70) more or less feet in depth (south to north) and ten (10.00) feet in width (west to east) and is described as the westerly ten (10.00) feet of Lot #9 and Lot #10, Ocean Breeze Subdivision, Block 2. SEE EXHIBIT `A'. In the event that this easement is ever to be released, it will be released by the City of Sebastian according to its then existing procedures for the vacation of easements. EXECUTED AND ACCEPTED BY GRANTOR(S) on the day of 20 CITY OF SEBASTIAN, FLORIDA Paul E. Carlisle, City Manager ATTEST: Jeanette Williams, MMC City Clerk 1 of 3 58 of 224 STATE OF FLORIDA COUNTY OF INDIAN RIVER I HEREBY CERTIFY that on this day, before me, an officer duly authorized in Indian River County, Florida, to take acknowledgements, personally appeard Paul E. Carlisle and Jeanette Williams, known to me to be the City Manager and City Clerk, respectively, and neither of them took an oath. WITNESS my hand and seal in Indian River County, Florida, this day of 20 Notary Public, STATE OF FLORIDA AT LARGE My Commission Expires: 2 of 3 59 of 224 MOF SET -N HOME OF PELICAN ISLAND CITY COUNCIL AGENDA TRANSMITTAL COUNCIL MEETING DATE: February 12th, 2020 AGENDA ITEM TITLE: 2020 Pelican Island Wildlife Festival Road Closure and Event Request RECOMMENDATION: Staff Recommends Approval of the 2020 Pelican Island Wildlife Festival in Riverview Park and the requested Road Closures. BACKGROUND: Staff met with representatives from the Pelican Island Conservation Society to discuss logistics for the 2020 Pelican Island Wildlife Festival. The event is scheduled to take place on Saturday March 7th, 2020 from 10 AM to 4 PM. The attached letter from the Pelican Island Conservation Society outlines their logistical requests for the event. Road closures necessary are: Indian River Drive from Coolidge St. south to the southern overflow parking entrance, Harrison St. from the Splash Pad entrance east to Indian River Dr. and Sebastian Blvd. from U.S.1 east to Indian River Dr. from 6 AM to 6 PM on March 7th, 2020. The event also requests closure of the boat ramp at the Yacht Club and no boat trailer parking at the CavCorp lot. They will utilize the South side of the boat ramp for boat tours to operate but no boat launching will be allowed. IF AGENDA ITEM REOUIRES EXPENDITURE OF FUNDS: NIA Administrative Services Department/CFO Review: ATTACHMENTS: City Manager Authorization: Date:�� 1) Letter from Pelican Island Conservation Society 2) Map detailing road closures and parking areas 63 of 224 Pelican Island PRESERVATION SOCIETY P.O. Box 781903 Sebastian, Florida 32978-1903 To: City Council, City of Sebastian From: Pelican Island Conservation Society Re.: 2020 Pelican Island Wildlife Festival The Pelican Island Conservation Society proposes to hold our 28"' Annual Pelican Island Wildlife Festival at Riverview Park in Sebastian, on Saturday, March 7, 2020, from loam to 4pm. The event celebrates the establishment of Pelican Island as the nation's first national wildlife refuge. It consists of environmental themed exhibitors, historical, and live wildlife displays, boat tours to Pelican Island, children's activities, food vendors, photo contest, and presentations at the center of the park throughout the day. The emcee for the event will once again be Joe Wiegand in the guise as President Theodore Roosevelt. We are requesting the use of Riverview Park and the following assistance from the City of Sebastian in making this year's event another success. Sincerely, Ginny Blossom, President Pelican Island Conservation Society FESTIVAL SITE 1) Exclusive use of Riverview Park from 6am until 6pm on Saturday, March 7, 2020. 2) Access to Riverview Park for tent vendor set-up on Friday, March 6 and tear -down by no later than Monday, March 9. 3) Provide restroom services/supplies and porta-potties for the day of the event. 4) Storage sheds placed in parking area on Sebastian Blvd. and concrete pad on Harrison St., to be delivered Friday, March 6 and removed no later than Monday, March 9. S) Allow food vendors without trucks in park. Food vendors with trucks will be located along the closed portion of Sebastian Blvd. 6) Treasure Coast Wildlife Center wildlife van will park on Sebastian Blvd. under the shade in the northwest corner parking space. The show animals are kept in the van and cannot stay out in the sun. 7) Electricity to be turned on at the park on Friday, March 6, with additional electrical outlets provided for food vendors. 8) Water to be turned on at the park and hoses provided, on March 6 only, for filling of tent anchor barrels, as provided by tent vendor. 9) Provide trash removal from park receptacles. 10) Provide carts to assist exhibitors with loading and unloading. Pelican Island the Nation 's f rst National Wildlife Refuge Established March 14, 1903 64 of 224 11) Bleachers set up on the north, west, and south sides of the concrete pad at the center of the park, where the pelican fountain is located. 12) City's portable stage is not required but may be stored in the park adjacent to the restrooms. PARKING 13) Exclusive use of the Cavcorp parking lot with spaces marked for handicap. 14) Mark off(barricade Cavcorp and south parking lots as required (see map). 15) Placement of traffic cones and/or tape to mark off parking spots in Cavcorp lot. 16) Restrict parking along south side of park/Harrison St. from parking lot entrance to Indian River Dr. for walkway from parking lot to the park, 6am to 6pm. CLOSURES 17) Sebastian Blvd. closed from US 1 to Indian River Dr. from 6am to 6pm on March 7, 2020. 18) Indian River Dr. from Coolidge St. south to the southern overflow parking entrance from 6am to 6pm on March 7, 2020. We intend to have festival volunteers park in the unused spots on the east side of Indian River Dr. south of Coolidge St. 19) Harrison St. closed from south parking lot entrance to Indian River Dr. from 6am to 6pm on March 7, 2020. 20) Closure of one-half of Yacht Club boat ramp for l Oam to 3pm for boat tours. LAW ENFORCEMENT 21) Assistance with traffic control on Saturday, March 7, 2020 from 6am to 6pm. 22) Assistance with enforcement of the restriction of dogs and other domestic pets from the section of park where live wildlife will be on display; PICS will provide volunteers and signage in the wildlife display area regarding this restriction. 23) Sebastian Police Department to provide security the evening of March 6, all day and overnight on March 7 and patrol area on March 8 until tents are taken down. SIGNAGE 24) Event banner (provided by PICS) to be hung across Sebastian Blvd. in the vicinity of the Cavcorp parking lot, two weeks prior to event. 25) Event listed on Riverview Park marquee one week prior to event. 65 of 224 E = Exhibitor Checi--in; B = barrier: S = shed; V = wildlife van: F = fish tank truck: P = porta-potty Coolidge St All Vendors: After unloading, please move your North (Cavcorp) vehicle to the south parking lot, then set up your booth. Parking Lot The City of Sebastian Speedway requires all vendors' vehicles event parking to have their booth number displayed on the dashboard. CR 512 / Sebastian Blvd A r Fn0 YrOrInr.S F Food Vendors: Take US-] - to Coolidge St., go south a across the north parking lot, Riverview Park - through barrier, & set up in -■ parking spaces on the north - edge of the park (south side of Sebastian Blvd.) with the serving counter facing park. E S - Non -Food Vendors: The Harrison St Unloading/Loading Area PP unloading/loading zone is on the south side of the park on Harrison St. Ten carts will be available, so please 3 remember to share. I check volunteer & event parking in non-food vendors from 6:00am to 9:45am. South Parking Lot Cn«F SEBASTIAN HOME OF PELICAN ISLAND CITY COUNCIL AGENDA TRANSMITTAL COUNCIL MEETING DATE: AGENDA ITEM TITLE: February 12, 2020 Alcohol beverage approval. RECOMMENDATION: Approve alcoholic beverages for the Hidden Sanctuary Village Paint -A -Pallet Craft Event at the Community Center. BACKGROUND: Kelly Johnson (in behalf of Hidden Sanctuary Village, Inc.) is seeking Council approval to serve alcoholic beverages at the Community Center on Friday, March 6th, 2020 from 6:OOPM to 11:00PM. Staff has verified Applicant's date of birth. They are expecting 40-50 people. IF AGENDA ITEM REOUIRES EXPENDITURE OF FUNDS: N/A Administrative Services Department/CFO Review: ATTACHMENTS: 1. Facility Rental Permit Application 2. Receipt(s) 3. IRS 501 C3 (Non-Profit/Tax Exempt Forms) City Malia;er Authrizatio Date: 67 of 224 I OF SEBASTIAN FACILITY 201 NTAL PERMIT APPLICATION C"CW 44021 W01— HOME OF PELICAN ISLAND 1225 Main Street Sebastian, FL 32958 Parks Phone: (772) 228-7054 FAX: (772) 388-8248 *For emergency purposes p_,_, LYS please dial 772,473.0454 )-- Office use only: $250 Security Pd: Date Initials Rental Fee 6 7% Tax Total Rental Pd: Date Initials City Manager Approval: Date Initials City Council Approval: Date (f applicable) Police Hire Verification: (If applicable) Initials II dCommunity Date: Center Yacht Club VIC I l� �aln�n5 o f-,%,pplicable) Name o Permittee (permits may only be issued to an adult) Name of ganiza#ion CP1hPysic/a`l Address M%ail7ing Address (if different) t.11_ ��1.�✓4 �� 1 �jr I I�^ V!f!%! '4- �L V �} Ifl��.l�.l�h��I �i-/JJQ�1C-7 Q% city N 0 ti 1 X04 tk State Phone " E -Mail) V1,C,017\ ►�.d,I�� sem►- 00('� C Y4-=�- Reason for Rental — Type of Function - P�lits �s. Anticipated Number of An dees (if more than 75 attendees, police services are requiredby R-10-15 � ap4106MM ) Re ste m t g�ad Ph q d Date Time: From To Please answer the following yes or no: 1) Are you a resident of Sebastian?Q� 2) Will there be an admission charge or door charge? 3) Will alcoholic beverages be served? If yes, please provide govt. issued ID proof of age Date of girth Verified by 1, the the abo referenced rganization, that undersigned, amaware cofQhe provisionwledge that I s of ttheaCfli oftSebasor anauthorizedagent d Y flan Codes and Resolutions in respect to this application and use of City facilities for which I have applied and agree to abide by all rules and regulations set out for use of City facilities. I understand that the $250.00 security deposit will be refunded if the building is left clean and undamaged, however, failure to clean the facilities immediately after the use, or causing any damage to the facility will result in forfeiture, in part or full, of the security deposit. Signatu f plicant 68 of 224 CITY OF SEBASTIAN 12305 ADMINISTRATIVE SERVICES RECEIPT 1� % 1�?I Name kg 2AW � j� ❑gash Date ACheck # 1 O C COn _ L 1 P�ifl ❑ Credit %W,A� --G -.P0i j401 Amount Paid 01 362150 Non -Taxable Rent 001001 220000 Security Deposit a �� 001501 362100 Taxable Rent 001001 208001 Sales Tax 450010 369900 Airport Badge 001001218010 CobraServe 001501 354100 Code Enforcement Fines 001501 347557 Community Center Revenue 001501341920 Copies 001501 351140 Parking Citation 001501 342100 Police Security Services 001501 220030 PD SHOP 001501 366602 PD SAFE 001501 366603 PD COPE Lf 1X1 Total Paid'�34 i Initials White - Dept. of Origin • Yellow - Admin. Svcs. • Pink - Applicant 69 of 224 INTERNAL REVENUE SERVICE P. 0. BOX 2508 CINCINNATI, OH 45201 Date: AUG 022019 HIDDEN SANCTUARY VILLAGE INC C/O DANIEL R JOHNSON 747 ALBATROSS TERRACE SEBBASTIAN, FL 32958 Dear Applicant: DEPARTMENT OF THE TREASURY Employer Identification Number: 83-4256865 DLN: 17053169321029 Contact Person: HEATHER L SUHR ID# 17300 Contact Telephone Number: (877) 829-5500 Accounting Period Ending: December 31 Form 990 -PF Required: Yes Effective Date of Exemption: April 1, 2019 - Addendum Applies: No We're pleased to tell you we determined you're exempt from federal income tax under Internal Revenue Code (IRC) Section 501(c)(3). Donors can deduct contributions they make to you under IRC Section 170. You're also qualified to receive tax deductible bequests, devises, transfers or gifts under Section 2055, 2106, or 2522. This letter could help resolve questions on your exempt status. Please keep it for your records. Organizations exempt under IRC Section 501(c)(3) are further classified as either public charities or private foundations. We determined you're a private foundation within the meaning of Section 509(a). We further determined you qualify as a private operating foundation under IRC Section 4942(j)(3). We'll treat you as a private operating foundation as long as you continue to meet the requirements of Section 4942(j)(3). You're required to file Form 990 -PF, Return of Private Foundation or Section 4947(a)(1) Trust Treated as Private Foundation, annually, whether or not you have income or activity during the year. If you don't file a required return or notice for three consecutive years, your exempt status will be automatically revoked. If we indicated at the top of this letter that an addendum applies, the enclosed addendum is an integral part of this letter. For important information about your responsibilities as a tax-exempt organization, go to www.irs.gov/charities. Enter "4221 -PF" in the search bar to view Publication 4221 -PF, Compliance Guide for 501(c)(3) Private Foundations, which describes your recordkeeping, reporting, and disclosure requirements. Letter 1076 70 of 224 0;, 003? 09113/19 rig FLORIDA 85-8017880373C-2 Certificate Number This certifies that Consumer's Cerfilallcatd of Exempt (Dn]l Issued Pursuant to Chapter 212, Florida Statutes HIDDEN SANCTUARY VILLAGE INC 747 ALBATROSS TER SEBASTIAN FL 32958-5931 08/26/2019 I 08/31/2024 Effective Date Expiration Date DR -14 R. 01/18 501(C)(3) ORGANIZATION Exemption Category is exempt from the payment of Florida sales and use tax on real property rented, transient rental property rented, tangible personal property purchased or rented, or services purchased. DR -14 �1 Bmportant Wormation for Exempt Organizations A. 01/18 n FLORIDA You must provide all vendors and suppliers with an exemption certificate before making tax-exempt purchases. See Rule 12A-1.038, Florida Administrative Code (F.A.C.). Your Consumer's Certificate of Exemption is to be used solely by your organization for your organization's customary nonprofit activities. 3. Purchases made by an individual on behalf of the organization are taxable, even if the individual will be reimbursed by the organization. This exemption applies only to purchases your organization makes. The sale or lease to others of tangible personal property, sleeping accommodations, or other real property is taxable. Your organization must register, and collect and remit sales and use tax on such taxable transactions. Note: Churches are exempt from this requirement except when they are the lessor of real property (Rule 12A-1.070, F.A.C.). It is a criminal offense to fraudulently present this certificate to evade the payment of sales tax. Under no circumstances should this certificate be used for the personal benefit of any individual, Violators will be liable for payment of the sales tax plus a penalty of 200% of the tax, and may be subject to conviction of a third-degree felony. Any violation will require the revocation of this certificate. If you have questions about your exemption certificate, please call Taxpayer Services at 850-488-6800. The mailing address is PO Box 6480, Tallahassee, FL 32314-6480. 71 of 224 nn LV HOME OFPEUCANISLAND CITY COUNCIL AGENDA TRANSMITTAL COUNCIL MEETING DATE: February 12, 2020 AGENDA ITEM TITLE: Planninq and Zoning Commission i. Fill one expired, regular member position - Term to expire February 1, 2023 RECOMMENDATION: Interview, unless waived, submit nominations for one expired, regular member position with a term to expire February 1, 2023 BACKGROUND: In accordance with Resolution No. R-12-38, the City Clerk has advertised this expiration in the form of a press release posted on the City's website and the City Hall lobby board. It was also distributed to local press contacts. While Facebook is not included in the 2012 Resolution as an avenue for advertising, the City Clerk does use Facebook to advertise board/committee vacancies. In response to the City Clerk's advertisement, the City Clerk has received requests to serve from: Louise Kautenburg, Current Incumbent William Simmons, Current Alternate Member John Christino, Current Alternate Member Joseph Civil, New Applicant David DeVirgilio, New Applicant ATTACHMENTS: Applications, Ad, List Clerk Authorization: L[X, Date:/ -Sl 2c 72 of 224 orr Cf SET R&CEtvE� HOME OF PELICAN ISLAND 2 3 2Ql City or 2 City Cleseb�sti�n APPLICATION TO SERVE ON CITY BOARD/COMMITTEE k's Once (AIL City Board and Committee Members Must be Residents of the Citv of Sebastian) NAME: o j , HOME ADDRESS:�'���Q� cW PHONE: 77C�.4�7/(0 •Ht1VE=Fft't E-MAIL: BUSINESS:.LjO��l�t BUSINESS ADDRESS --4' 2/C,�j�'�`'� BUSINESS PHONE: � 5 BUSINESS FAX�U5 5�3 MAIL: 2-5 ARE YOU A RESIDENT OF THE CITY OF SEBASTIAN? HOW LONG? Xyj�' DO YOU CURRENTLY HOLD ANY PUBLIC OFFICE?- ,A!) DO YOU PRESENTLY SERVE ON ANY OTHER CITY BOARD OR COMMITTEE? WHICH BOARDSICOMMITTEES? PLEASE CHECK THE BOARDS FOR WHICH YOU ARE INTERESTED IN SERVING IN ORDER OF PREFERENCE WITH FIRST CHOICE BEING #1: CHARTER REVIEW COMMITTEE (serves only & months every b years - meets nextin 2011) CITIZENS BUDGE=T REVIEW ADVISORY BOARD (temporary - meets during summer) CONSTRUCTION BOARD (permanent board - meets once a month)' HANDICAPPED SEL;" -EVALUATION COMMITTEE (permanent board — meets quarterly) PLANNING AND ZONING COMMISSION (permanent board -- meets twice a month)' POLICE RETIREMENT BOARD OF TRUSTEES (permanent statutory board- meets quarterly)" PARKS & RECREATION ADVISORY COMMITTEE (permanent board —meets once a month) NATURAL RESOURCES BOARD (permanent board — meets once a month) OTHER TEMPORARY COMMITTEE (if applicable) (WRITE IN COMMITTEE NAME) Filing of financial disclosure is required following appointment 73 of 224 5• ' APPLICABLE EDUCATION AND/OR EXPERIENCE: (a brief resume is required) 1!%'�Cfa.�r`��.` f;✓� ' 2cr% � �'d/l� Cay//F�� rl�NAI . �owYs 'r�o��ysrtuTe v/}Te e jj'-; 'k f` .fr,fTI,L-), G�u� L`' fsS Ze— �, �J j a A4J 6-5r.4Te HOW WOULD YOUR EXPERIENCE BENEFIT THE BOARD YOU'RE ,gi3 v.5A!PPLYING FOR AAtle, ? mus ,►'S /,�vs,;� I 'r1 E 0ver4l Pz)61,e 9- The- r 1 crJ'�-rte 0 .4 G''!f ,9,v ,TAA i�A r--� e7A' r�} �v/, °c ar %r rcJifk..� e YI'1s� �,°��Tl �2� z .. r � tiz re. Are �ey);q S yeyAr,1Ve j`.f,,q ���� 34 1 i i��;/ LEST ANY ADDITIONAL OUALIFICATIONS TO SERVE ON BOARD OR COMMITTEE: Ye'e uJr i'h TA�e ,�s,'I,'t Ta' i'G'.KA; ti n�Qu v �r�;',melew, �S'c+ `r�YC A SiY� TO IjLeuJ hf3ifPftvQ.v Aorreur% ryv •4cav r fv t� HAVE YOU ER BEEN CONVICTED OF ANY FELONY IN THIS OR ANY STATE? 'HAVE YOU EVEN BEEN CONVICTED OF ANY MISDEMEANOR INVOLVING MORAL TURPITUDE 1N THIS OR ANY STATE? IV -0 WOULD YOU CONSIDER SERVING ON A BOARD OTHER THAN THE ONE(S) SELECTED ABOVE?j% /4%r %%1; 3 % We— I hereby certify that I am qualified to hold the position for which this application is made. Further, I hereby authorize. the City of Sebastian to investigate the truthfulness of all information which I have provided in this application. I understand that any misrepresentation or omission of information requested in this application is cause for disqualification. I have been provided with, read and understand City of Sebastian Code of Ordinances Sections 2-166 through 2-173 (attached). Information relative to a specific board or comm 'Yee is availabl 'fir nested_ Applican-t7Signat Subscribe�d/ and swo to before me this ��pSi��ak -oma - by 7a� 1who is, oersonally known t me, r has rodp aced identification. -----lotaryPublic, 51ate of on a Please return to Office of the City Clerk, 1225 Main Street, Sebastian, FL 32958 - (772) 589-5330 lwp-foWappiicat.wpd rev. 712007 Linda M. Kocher �t07"�Y� MY COMM. #DD 855321 (' Pl1BiIC a EXPIRES: February 16, 2013 74 of 224 a VOLUNTEER BOARD AND COMMITTEE APPLICATION This application form is a public record under Chapter 119, Florida Statutes, and is open to public inspection. In accordance with FS 119.07 Exemptions, individuals employed or retired from certain professions relating to law enforcement may request that their physical address and phone number remain confidential. Unless requested, that information will be available and not redacted. Per Section 2-170, all Board and Committee members must be City residents unless otherwise specified in the enacting ordinance or resolution. Board and Committee terms are three years unless otherwise specified in the enacting ordinance or resolution. You /f'/inu m% ayreapply for succeeding terms upon term expiration. Name: 6 i ` ��h�% • i/7717-'10 v7s Address: So :/ 7>4,4CJbV 4-,114,1 City�li�S//%R�r State: ��-- c Zip: Telephone: ( -77 Z ) s8g - 9 ZZ -46 E -Mail Address: S r7NS 41 ce,Co,%nc/4 S 7— Employer: City: State: Zip: Rukls(Telephone: ( 27 V ) S_- _3_r.ri L I am interested in serving on the following board(s)/committee(s): 1" Choice:P�.4�Yn1i�LG7 T4 ✓i 10 C) 2nd Choice: , CHARTER REVIEW COMM ITTEE (serves only six months, everyfive years —next meeting in 2016) CITIZENS BUDGET REVIEW ADVISORY BOARD CONSTRUCTION BOARD* (permanent) DISABILITIES ADVISORY COMMITTEE (temporary) NATURAL RESOURCES BOARD (permanent) PLANNING AND ZONING COMMISSION* ** (permanent) POLICE RETIREMENT BOARD OF TRUSTEES* PARKS AND RECREATION ADVISORY COMMITTEE (permanent) SEBASTIAN YOUTH ADVISORY COUNCIL (temporary) VETERANS' ADVISORY BOARD (temporary) *Filing of financial disclosure is required following appointment "Must be resident one year prior to application. 75 of 224 Please summarize special skills, qualifications, or education you have acquired for this appointment: (Your resume, professional certifications or designations may be attached.) 3d yl�� its cfi-A-W 1l� 4 4, V P �97L_ 1�17aC-6 R- Why do you want to serve on this board? r 4ur ri ✓�P � a�u T� - �'orit�r ���u�,P ;L 644-,c ,t /,�4 Do you presently serve on another City Board or Committee? /Y o If yes, please list: Have you previously served on any other City Board or Committee? fi,5 If yes, please list: �G �A/A /K 09d -JC/1I /;?� C O Y�44- W �' /0 co nJ �e Y%o r P4 I will represent the best interests of the entire City while serving as a board member. I hereby waive and release any and all rights for claims for damages and injuries I may suffer while performing or after performing volunteer services for the City of Sebastian. I give permission for the City of Sebastian to use my photograph for publicity purposes (unless requesting exemption). If required for this board, I consent to the annual filing of the Statement of Financial Interests. htto://www.ethics.state.fl.us/ethics/forms.html If appointed, I acknowledge that it is my obligation and duty to comply with the following: Code of Ethics for Public Officials (Florida Statutes, Chapter 112, Part 111) and Florida Sunshine Law (Florida Statutes, Chapter 286) Statutes may be reviewed at htto://www.flsenate.Rov/statutes I understand I must contact the City Clerk's office to request reappointment prior to expiration or to be considered for another board. I hereby certify that all the statements made on this application are true and correct. I understand that any false st tements or omissions from this application may be cause for my application not to be considered. / Signature of Applicant: Date: 'I`ll Z 3 IzeP16 Date Received by City Clerk's Office `'l ' 2 Z — 1 6 by: 4.0 76 of 224 arY or - HOME OF PELICAN ISLAND VOLUNTEER BOARD AND COMMITTEE APPLICATION This application form is a public record under Chapter 119, Florida Statutes, and is open to public inspection. In accordance with FS 119.07 Exemptions, individuals employed or retired from certain professions relating to iaw enforcement may request that their physical address and phone number remain confidential. Unless requested, that information will be available and not redacted. Per Section 2-170, all Board and Committee members must be City residents unless otherwise specified in the enacting ordinance or resolution. Board and Committee terms are three years unless otherwise specified in the enacting ordinance or resolution. You may reapply for succeeding terms upon term expiration. Name: , �O�,r � i <14 +IAC Address: � � i l n(3 IA- 'OEa, City: ick n State: _ Zip: Telephone: ( —11'2— E -Mail Address: -- (—' nc3 cC- 1.n vvf-- 3 v Employer: my1C) q e_� City: State: Zip: Business Telephone:f �. � J '-� 4- OrI I am interested in serving on the following boards)/committee(s): 1" Choice:'? (Xan I' 47 e) ' � V1C� 2"d Choice: �] cs CHARTER REVIEW COMMITTEE (serves only six months, everyfive years — next meeting in 2021) CITIZENS BUDGET REVIEW ADVISORY BOARD CONSTRUCTION BOARD* (permanent) DISABILITIES ADVISORY COMMITTEE (temporary) NATURAL RESOURCES BOARD (permanent) PLANNING AND ZONING COMMISSION* ** (permanent) POLICE RETIREMENT BOARD OF TRUSTEES* PARKS AND RECREATION ADVISORY COMMITTEE (permanent) SEBASTIAN YOUTH ADVISORY COUNCIL (temporary) VETERANS' ADVISORY BOARD (temporary) *Filing of financial disclosure is required following appointment **Must be resident one year prior to application. 77 of 224 r Please summarize special skills, qualifications, or education you have acquired for this appointment: (Your resume, professional certifications or designations may be attached.) -tCe e� C C VVA- 'r'ac�b r #br" , S 0.VS ' .1 C -A ec vs ► P_c ►tonc.-P_ Lot ) t -�ko a l Qui tl t n -2. o ► co rmm. - s� s -��C�CD6 cool `j bO'�latnct ac- A-0 cr ya nck p—v e- n . Why do you want to serve on this board? \ ceAm- 6 1A- �LI� \'ke Aom Ve vJ C.ov-A m v � Do you presently serve on another City Board or Committee? c!) If yes, please list: Have you previously served on any other City Board or Committee? 00 If yes, please list: I will represent the best interests of the entire City while serving as a board member. I hereby waive and release any and all rights for claims for damages and injuries I may suffer while performing or after performing volunteer services for the City of Sebastian. I give permission for the City of Sebastian to use my photograph for publicity purposes (unless requesting exemption). If required for this board, I consent to the annual filing of the Statement of Financial Interests. httr)://www.ethics.state.fl.us/ethics/forms.html If appointed, I acknowledge that it is my obligation and duty to comply with the following: Code of Ethics for Public Officials (Florida Statutes, Chapter 112, Part///) and Florida Sunshine Law (Florida Statutes, Chapter 286) Statutes may be reviewed at http://www.flsenate.gov/statutes I understand I must contact the City Clerk's office to request reappointment prior to expiration or to be considered for another board. I hereby certify that all the statements made on this application are true and correct. I understand that any false statements or omissions from this application may be cause for my application not to be considered. {� Signature of Applicant: {+ Date: Date Received by City COffice �- /i q by 78 of 224 LTO' L)F SEFLAS;T1A�V HOME OF PELICAN ISLAND VOLUNTEER BOARD AND COMMITTEE APPLICATION This application form is a public record under Chapter 119, Florida Statutes, and is open to public inspection. In accordance with FS 119.07 Exemptions, individuals employed or retired from certain professions relating to law enforcement may request that their physical address and phone number remain confidential. Unless requested, that information will be available and not redacted. Per Section 2-170, all Board and Committee members must be City residents unless otherwise specified in the enacting ordinance or resolution. Board and Committee terms are three years unless otherwise specified in the enacting ordinance or resolution. You may reapply for succeeding terms upon term expiration. Name: J o S I.}. cl_ l v I Address: L ✓1 City: J F J 1 State: f� r Zip: Telephone: { 3 Z f } ,S - �� 6r E -Mail Address:1 0 c v C_ t y, C C ��JU . C U Employer: C_ - City: City: SC'" )<��1 C� V-\ State: Y' Zip: 3Z / Business Telephone: ( f ) 148/ am interested in serving on the following board(s)/committee(s): / 1" Choice: P -� Z C— 2nd Choice: �C r�CS � � >�� � rC CHARTER REVIEW COMM ITTEE (serves only six months, every five years -next meeting in 2021) CITIZENS BUDGET REVIEW ADVISORY BOARD CONSTRUCTION BOARD* (permanent) DISABILITIES ADVISORY COMMITTEE (temporary) NATURAL RESOURCES BOARD (permanent) PLANNING AND ZONING COMMISSION* ** (permanent) POLICE RETIREMENT BOARD OF TRUSTEES* PARKS AND RECREATION ADVISORY COMMITTEE (permanent) SEBASTIAN YOUTH ADVISORY COUNCIL (temporary) VETERANS' ADVISORY BOARD (temporary) *Filing of financial disclosure is required following appointment **Must be resident one year prior to application. .r Y 5 ,; ' , 79 of 224 Please summarize special skills, qualifications, or education you have acquired for this appointment: (Your resume, professional certifications or designations may be attached.) Why do you want to serve on this board? Sr � - S Do you presently serve on another City Board or Committee? / V If yes, please list: Have you previously served on any other City Board or Committee? A/0 0 If yes, please list: will represent the best interests of the entire City while serving as a board member. I hereby waive and release any and all rights for claims for damages and injuries I may suffer while performing or after performing volunteer services for the City of Sebastian. I give permission for the City of Sebastian to use my photograph for publicity purposes (unless requesting exemption). If required for this board, I consent to the annual filing of the Statement of Financial Interests. httr)://www.ethics.state.fl.us/ethics/forms.htrnl If appointed, I acknowledge that it is my obligation and duty to comply with the following: Code of Ethics for Public Officials (Florida Statutes, Chapter 112, Part 111) and Florida Sunshine Law (Florido Statutes, Chapter286) Statutes may be reviewed at http://www.flsenate.gov/statutes I understand I must contact the City Clerk's office to request reappointment prior to expiration or to be considered for another board. I hereby certify that all the statements made on this application are true and correct. I understand that any false statements or omissions from this application may be cause for my application not to be considered. I, q Signature of Applicant: P Date: 80 of 224 Date Received by City Clerk's Office i 0- �(�( by: 1// J-1 CITYY OF HOME OF PELICAN ISLAND VOLUNTEER BOARD AND COMMITTEE APPLICATION This application form is a public record under Chapter 119, Florida Statutes, and is open to public inspection. In accordance with FS 119.07 Exemptions, individuals employed or retired from certain professions relating to law enforcement may request that their physical address and phone number remain confidential. Unless requested, that information will be available and not redacted. Per Section 2-170, all Board and Committee members must be City residents unless otherwise specified in the enacting ordinance or resolution. Board and Committee terms are three years unless otherwise specified in the enacting ordinance or resolution. You may reapply for succeeding terms upon term expiration. Name: Avik �;= �} I12C-7 IL --1 0 Address: 1 . �C L »� /1-5 LAti' b I /- City: €�� S �!4Aj State: L— Zip: 3 Zq S 0 Telephone: ( 7-7-2- 633 - 74 o E -Mail Address: r- I-) P %/r rc, 1 ��/ �J� `� ,6rl Th , t7,�t Employer:€G 4 City: '566A -S T J4,j State: ri, Zip: 32-7 Business Telephone: ( 772- ) 4,33 - 7166 I am interested in serving on the following board(s)/committee(s): 15t Choice: J�i,J.t>>Nb—zD�1//(, 2nd Choice: CHARTER REVIEW COMMITTEE (serves only six months, every five years- next meeting in 2021) CITIZENS BUDGET REVIEW ADVISORY BOARD CONSTRUCTION BOARD* (permanent) DISABILITIES ADVISORY COMMITTEE (temporary) NATURAL RESOURCES BOARD (permanent) PLANNING AND ZONING COMMISSION* ** (permanent) POLICE RETIREMENT BOARD OF TRUSTEES* PARKS AND RECREATION ADVISORY COMMITTEE (permanent) SEBASTIAN YOUTH ADVISORY COUNCIL (temporary) VETERANS' ADVISORY BOARD (temporary) *Filing of financial disclosure is required following appointment **Must be resident one year prior to application. 81 of 224 Please summarize special skills, qualifications, or education you have acquired for this appointment: (Your resume, professional certifications or designations may be attached.) t A t2-5- Cc N S ' iZ-0 C T- t i� ��c P C-1 ET A; C. �E- Why do you want to serve on this board? (Y0tj 1-- 6i21=LJ7� %��if��'�►�f �E5 P��Sa�L,� �� f��oP►�> �3 (fes G --- [.& ILO rid T{� J E J C�% 4 --) ri 0 01 kn rl/� d ! i It L,� �Grs J� f- Ar7-(t L, Do you presently serve on another City Board or Committee? A,10___ If yes, please list: Have you previously served on any other City Board or Committee? 1 If yes, please list: i,7 /) (D fi ,/ r/ z€ d} �r sa �,y x 14) ^ 12;e�g- I will represent the best interests of the entire City while serving as a board member. I hereby waive and release any and all rights for claims for damages and injuries I may suffer while performing or after performing volunteer services for the City of Sebastian. I give permission for the City of Sebastian to use my photograph for publicity purposes (unless requesting exemption). If required for this board, I consent to the annual filing of the Statement of Financial Interests. http://www.ethics.state.fl.us/ethics/forms,html If appointed, I acknowledge that it is my obligation and duty to comply with the following: Code of Ethics for Public Officials (Florida Statutes, Chapter 112, Part 111) and Florida Sunshine Law (Florida Statutes, Chapter 286) Statutes may be reviewed at http://www.flsenate.gov/statutes 1 understand I must contact the City Clerk's office to request reappointment prior to expiration or to be considered for another board. I hereby certify that all the statements made on this application are true and correct. I understand that any false statements or omissions from this application may be cause for my application not to be considered. Signature of Applicant: Zk Date Received by City Clerk's office 1 -2 7-W Z-0 Date: f L 7 0. ; { 0 by• �,i� 82 of 224 J January 24, 2020 Contact: City Clerk's Office 388-8215 PRESS RELEASE PLANNING AND ZONING COMMISSION The City of Sebastian is seeking applicants to fill an expired, regular member position - term to expire 21112023. This is a volunteer position. Applicants must have been a City resident one year prior to application and file annual financial disclosure. This Commission meets on the first and third Thursday of each Month at 6:00 p.m. in the Council Chambers, 1225 Main Street, Sebastian. Applications are available in the City Clerk's office, City Hall, 1225 Main Street, Sebastian, between the hours of 8:00 a.m. to 4:30 p.m. or at www.citvofsebastian.orq and will be accepted until February 7, 2020. 83 of 224 PLANNING & ZONING COMMISSION 3 -YEAR TERMS MEETS 1ST AND 3RD THURSDAY OF EACH MONTH - 6:00 P.M. MEMBER NAME AND APPOINTMENT HISTORY CURRENT STATUS ADDRESS [MOST RECENT HISTORY FIRST] Robert Hughan Took McManus' regular member position Term to expire 11/1/2020 1244 Larkspur Street 1112017 Sebastian, FL 32958 rhunhann-beilsouth.net Reappointed aft member 2/22117 (305) 498-2947 Took Kautenburg's unexpired alternate member position 12/16/15 Rick Carter Reappointed 3122117 Term to expire 4/1/2020 237 Main- Street Sebastian, FL 32958 Took Cardinale's expired regular focus sysa-comcast. net member position 4127111 918-4600 Took Durr's unexpired alt member position 219111 Reappointed 3126114 Tahir (Bash) Qizilbash Reappointed 5110117 Term to expire 5/1/2020 103 Barbara Court Sebastian, FL 32958 Bash.pes a( ..ornail.com Reappointed 3126114 581-0775 Took Paul's expired regular member position 4127/11 Louise Kautenburg - Chair Reappointed 2122117 Term to expire 2/1/2020 973 Oswego Avenue Sebastian, FL 32958 Took Durr's unexpired regular member Louisek1 Ca uno.com position 10/14/15 696-3716 Reappointed 118114 Took Hennessey's unexpired alternate member position 3/14112 84 of 224 s 0 David Reyes — Vice Chair Reappointed 5/9/18 Term to expire 6/1/2021 458 Oak Street Sebastian, FL 32958 Reappointed 6/24/15 Jdr5347(a)att.net 453-6157 Reappointed 6/13/12 Took Simmons unexpired regular member position 3/1/11 Took Neuberger's unexpired alternate member position 7/14/10 Joel Roth Reappointed 5/8/19 Term to expire 5/1/2022 1984 E. Lakeview Drive Sebastian, FL 32958 Reappointed 4/27/16 ioelroth(cDmsn.com 589-6894 Reappointed 4/24/13 Reappointed 5/12/10 Took Buchanan's unexpired regular member position 1/27/10 Al Alvarez Reappointed 11/20/19 Term to expire 11/1/2022 492 Quarry Lane Sebastian, FL 32958 Took Dodd's expired regular member alalvarez(cDaol.com position 12/14/16 532-8767 Took McManus' unexpired alternate member position 11/19/14 John Christino - Alternate Took Mauti's expired alternate member Term to expire 1/1/2023 182 Spring Valley Avenue position 12/11/19 Sebastian, FL 32978 i.christino(cDsbcglobal. net (772)202-7812 Bill Simmons - Alternate Reappointed 11/20/19 Term to expire 11/1/2022 509 Drawdy Way Sebastian, FL 32958 Took Alvarez's expired alternate member Bsimmons4la..comcast.net position 12/14/16 (270)314-3554 grhnnl Roard Member: Mara Shiff, 1990 25th Street, Vero Beach, FL 32960 revised 11.26.19 85 of 224 all * SEELASTIAN HOME OF PELICAN ISLAND CITY COUNCIL AGENDA TRANSMITTAL COUNCIL MEETING DATE: February 12, 2020 AGENDA ITEM TITLE: Police Pension Board of Trustees - Fill One Civilian Position RECOMMENDATION: Interview, Unless Waived, Submit Nomination for One Civilian Position with a Term to Expire February 2024 BACKGROUND: In response to the advertisement, the City Clerk has received one application from Bob McPartlan ATTACHMENTS Clerk Autholrization. Date: C✓ Z V Application, Ad, List, Code 86 of 224 CnIf OF SE HOME OF PELICAN ISLAND VOLUNTEER BOARD AND COMMITTEE APPLICATION This application form is a public record under Chapter 119, Florida Statutes, and is open to public inspection. In accordance with FS 119.07 Exemptions, individuals employed or retired from certain professions relating to law enforcement may request that their physical address and phone number remain confidential. Unless requested, that information will be available and not redacted. Per Section 2-170, all Board and Committee members must be City residents unless otherwise specified in the enacting ordinance or resolution. Board and Committee terms are three years unless otherwise specified in the enacting ordinance or resolution. You may reapply for succeedin erms upon term expiration. Name:��'� 17 Y f4- Address: Zip: 1�_s � Telephone E -Mail Address: Employer: City: Ir' 7' ✓ C r_ Citv:r =!? rjs I l State: State: � — Zip: 3 Z�q -` Business Telephone: (� ) ?O r - o I am interested in serving on the following boards)/committee(s): 1" Choice: 2nd Choice: CHARTER REVIEW COMMITTEE (serves only six months, every five years — next meeting in 2021) CITIZENS BUDGET REVIEW ADVISORY BOARD CONSTRUCTION BOARD* (permanent) DISABILITIES ADVISORY COMMITTEE (temporary) NATURAL RESOURCES BOARD (permanent) PLANNING AND ZONING COMMISSI(X+*- ** ermanent) c ETIREMENT BOA -oF-T'Rus t EES* '��"LMEATION A_VI RY-CffM_M1TTEE (permanent) SEBASTIAN YOUTH ADVISORY COUNCIL (temporary) VETERANS' ADVISORY BOARD (temporary) *Filing of financial disclosure is required following appointment **Must be resident one year prior to application. 87 of 224 Please summarize special skills, qualifications, or education you have acquired for this appointment: (Your resume, professional certifications or designations may be attached.) Why do you want to serve on this board? Do you presently serve on another City Board or Committee? Al/0 If yes, please list: Have you previously served on any otherCity oard or Committee? )e— lf e If yes, please list: `— f�,g�T, ✓ �[� e�,� 667 v» -,0, I will represent the best interests of the entire City while serving as a board member. I hereby waive and release any and all rights for claims for damages and injuries I may suffer while performing or after performing volunteer services for the City of Sebastian. I give permission for the City of Sebastian to use my photograph for publicity purposes (unless requesting exemption). If required for this board, I consent to the annual filing of the Statement of Financial Interests. http://www.ethics.state.fl.us/ethics/forms.html If appointed, I acknowledge that it is my obligation and duty to comply with the following: Code of Ethics for Public Officials (Florida Statutes, Chapter 112, Part lll) and Florida Sunshine Law (Florida Statutes, Chapter 286) Statutes may be reviewed at http://www.flsenate.pov/statutes I understand I must contact the City Clerk's office to request reappointment prior to expiration or to be considered for another board. I hereby certify that all the statements made on this application are true and correct. I understand that any false statements or omissions from t ' application may be cause for my application not to be considered. Signature of Applicant: /(' ✓t Date: Date Received by City Clerk's Office Z"3 '��z by: 88 of 224 January 24, 2020 Contact: Jeanette Williams 388-8215 PRESS RELEASE CIVILIAN POSITION ON THE CITY OF SEBASTIAN POLICE OFFICER PENSION BOARD OF TRUSTEES The City of Sebastian is seeking applicants to fill one civilian position on the Police Officer Pension Board to fill a four year term. This Board meets quarterly in the City Council Chambers, 1225 Main Street, Sebastian, to administer the retirement system for Sebastian's police officers. Residency and financial disclosure is required for this volunteer position. Applications are available in the City Clerk's office between the hours of 8:00 am and 4:30 pm or may be downloaded from the City's website www.citvofsebastian.orq Applications will be accepted until February 7, 2020. ##8 89 of 224 POLICE RETIREMENT BOARD OF TRUSTEES 4 -YEAR TERMS Two Members Appointed by City Council Albert lovino aiovino@comcast.net Vacant Two Members Elected by Police Officers Officer Jason Gillette — Chairman Lieutenant Tim Wood Term to expire 1/2024 Term to expire 2/2024 Term to Expire 10/2021 Term to Expire 10/2021 One Member Appointed !ay Board and Confirmed by City Council Paul Williamson Term Expires 1/2022 12785 Roseland Road Sebastian, FL 32958 913-2543 Paul cDPaulwilliamsonandcompanv.com 90 of 224 Sec. 58-48. - Board of trustees. (a) The sole and exclusive administration of and responsibility for the proper operation of the system and for making effective the provisions of this ordinance is hereby vested in a board of trustees. The board is hereby designated as the plan administrator. The board shall consist of five trustees, two of whom, unless otherwise prohibited by law, shall be legal residents of the city, who shall be appointed by the Sebastian City Council, and two of whom shall be members of the system, who shall be elected by a majority of the police officers who are members of the system. The fifth trustee shall be chosen by a majority of the previous four trustees as provided for herein, and such person's name shall be submitted to the Sebastian City Council. Upon receipt of the fifth person's name, the Sebastian City Council shall, as a ministerial duty, appoint such person to the board as its fifth trustee. The fifth trustee shall have the same rights as each of the other four trustees appointed or elected as herein provided and shall serve a four-year term unless he sooner vacates the office. Each resident trustee shall serve as trustee for a period of four years, unless he sooner vacates the office or is sooner replaced by the Sebastian City Council at whose pleasure he shall serve. Each member trustee shall serve as trustee for a period of four years, unless he sooner leaves the employment of the city as a police officer or otherwise vacates his office as trustee, whereupon a successor shall be chosen in the same manner as the departing trustee. Each trustee may succeed himself in office. DROP participants can be elected as but not vote for elected trustees. The board shall establish and administer the nominating and election procedures for each election. The board shall meet at least quarterly each year. The board shall be a legal entity with, in addition to other powers and responsibilities contained herein, the power to bring and defend lawsuits of every kind, nature, and description. (b) The trustees shall, by a majority vote, elect a chairman and a secretary. The secretary of the board shall keep a complete minute book of the actions, proceedings, or hearings of the board. The trustees shall not receive any compensation as such, but may receive expenses and per diem as provided by law. (c) Each trustee shall be entitled to one vote on the board. Three affirmative votes shall be necessary for any decision by the trustees at any meeting of the board. A trustee shall abstain from voting as the result of a conflict of interest and shall comply with the provisions of F.S. § 112.3143. (d) The board shall engage such actuarial, accounting, legal, and other services as shall be required to transact the business of the system. The compensation of all persons engaged by the board and all other expenses of the board necessary for the operation of the system shall 91 of 224 be paid from the fund at such rates and in such amounts as the board shall agree. In the event the board chooses to use the city's legal counsel, actuary or other professional, technical or other advisors, it shall do so only under terms and conditions acceptable to the board. (e) The duties and responsibilities of the board shall include, but not necessarily be limited to, the following: (1) To construe the provisions of the system and determine all questions arising thereunder. (2) To determine all questions relating to eligibility and membership. (3) To determine and certify the amount of all retirement allowances or other benefits hereunder. (4) To establish uniform rules and procedures to be followed for administrative purposes, benefit applications and all matters required to administer the system. (5) To distribute to members, at regular intervals, information concerning the system. (6) To receive and process all applications for benefits. (7) To authorize all payments whatsoever from the fund, and to notify the disbursing agent, in writing, of approved benefit payments and other expenditures arising through operation of the system and fund. (8) To have performed actuarial studies and valuations, at least as often as required by law, and make recommendations regarding any and all changes in the provisions of the system. (9) To perform such other duties as are required to prudently administer the system. (Ord. No. 0-15-01, § 1(Att.), 2-25-15; Ord. No. 0-17-03, § 2, 8-23-17) 92 of 224 E ary � SSTIAN` ANN HOME OF PELICAN ISLAND CITY COUNCIL AGENDA TRANSMITTAL COUNCIL MEETING DATE: February 12'', 2020 AGENDA ITEM TITLE: Integrated Pest Management Parks Sub -Committee Update BACKGROUND: City Parks are currently under a 120 day moratorium on spraying. Direction has been given to create an Integrated Pest Management Parks Sub -Committee that will assist with the development of an IPM that will work throughout our Parks. We have three Natural Resource Board members on the committee along with City staff and we have reached out to some additional resources to join the committee as advisors. The plan is to meet weekly over the next 5 weeks with the committee to develop an IPM that would be presented to City Council on April S`h. IF AGENDA ITEM REOUIRES EXPENDITURE OF FUNDS: NIA Administrative Services Department/CFO Review: ATTACHMENTS: 1) Summary Update 2) IPM Cycle Plan 2) Sub -Committee Meeting Schedule City Mana Autho ' ion: Date: � h 93 of 224 LM C+ SEBAS-T," HOME OF PELICAN ISLAND Leisure Services Department 1225 MAIN STREET SEBASTIAN, FLORIDA 32958 OFFICE TELEPHONE (772) 228-7057 To: Mayor and City Council Members Thru: Paul E. Carlisle, City Manager From: Brian Benton, Leisure Services Director Date: February 5th, 2020 Subject: Integrated Pest Management Parks Sub -Committee Update The City has formed an Integrated Pest Management Parks Sub -Committee that will take on the responsibility of formulating an IPM for our City Parks. This Committee is comprised of: 3 Natural Resources Board Members, Kim Haigler (City's Environmental Technician), and Brian Benton (Leisure Services Director). This Committee will meet weekly over the next 5 weeks to develop an IPM Parks Plan that will be presented to the City Council on Wednesday, April 8t"'. The purpose of the IPM plan is to develop a practice that will promote sustainable pest management methods that minimize health, environmental and economic risks. This best management practice will use a combination of techniques to suppress pest populations (ex. Diseases, Insects, Weeds, etc.). All of the techniques will be combined in this program so that pests are kept at acceptable thresholds in an effective and economical manner that is not detrimental to human health and the environment. The IPM plan will be comprised of a Reduced -Risk Pesticide List in a tier format that will identify the steps and approved products that City staff can use within identified parks. The Committee will be tasked with identifying products for each potential pest to come up with this list based on research and testing. All products that are included in this list will be required to be labeled as a pesticide per Florida Statutes 482 & 487 which prohibits the City from using any products that are not correctly labeled for use as a pesticide with accompanying application instructions for the protection of the public. The label must also include an ingredient statement and, if necessary, a warning or caution statement. The label is the law and our certified applicators must follow the instructions on the label for all pesticide applications. City parks will be separated into 3 areas: Athletic Fields, Active Parks, and Passive Parks. Each park will be identified in one of these three areas for the plan. The IPM plan cycle will involve the following process: • Inspect and Monitor Parks for Pests • Identification of Pests • Analyze the Findings to Determine the Best Response • Planning of a strategy to control and/or reduce pest using proper techniques and timing. • Implement the suggested strategy (Biological, Cultural, Mechanical, Chemical) • Keep Record of the Process and the Conditions • Evaluate the Effectiveness of the method used (If method used is ineffective then advance to the next method based on the pest identified) 94 of 224 *Scout landscapes and buildings to locate pests. INSPECTION & •Monitor by visual checks, traps, etc. MONITORING •Document if results met expectations •Identify pests to specific species •Determine whether the IPM plan needs *Know the life cycle and life stages of pests to be changedEFFECTIVENESS ' • -Effective treatment depends on proper ID *Regularly asses what was learned COMMUNITY IPM •Accurate record-keeping is essentialCYCLE to effective IPM RECORD +Determine if treatments were effective •Know what changed using trap counts, KEEPING weather data, and observations 1 2 A:' *Use natural enemies of the pests CULTURALBIOLOGICAL •Create habitat for beneficials <; I CONTROL CONTROL IL A *Disrupt the pest environment •Remove pest attractants • Plant pest resistant species. *Think prevention— keep pests out, don't feed pests, keep plants healthy *Determine what action is needed and whether a threshold has been crossed *Consider environmental, economical, and human health costs equally *Zero tolerance for indoorstructurai pests, like roaches, rats *Use proper techniques and timing for required management •LAST tool in the IPM toolbox MECHANICAL CHEMICAL *Carefully weigh environmental costs & CONTROLf benefits is READ THE LABEL. The label is the law! •Choose the least -toxic option available •Prevent pest entry with physical barriers that will do the iob. *Cultivate soil to disturb weed seedlings *Mowing to prevent weeds from seeding *Mulching CM' Cf SEBA T HOME OF PELICAN ISLAND 1225 MAIN STREET, SEBASTIAN, FL INTEGRATED PEST MANAGEMENT SUB -COMMITTEE MEETING SCHEDULE & DEADLINES 214 NRB Meeting, Council Chambers, 6PM, Elect three Board Members to serve on sub -committee. 2112 Sub -Committee Meeting, Upstairs Conference Room, 3- 4PM 2112 City Council Meeting, 6PM, IPM Sub -Committee Update 2119 Sub -Committee Meeting, Upstairs Conference Room, 3- 4PM 2126 Sub -Committee Meeting, Upstairs Conference Room, 3- 4PM 2126 City Council Meeting, 6PM, IPM Sub -Committee Update 313 NRB Meeting, Council Chambers, 6PM, IPM Sub -Committee Update 314 Sub -Committee Meeting, Upstairs Conference Room, 3- 4PM 3111 Sub -Committee Meeting, Upstairs Conference Room, 3- 4PM 3118 Sub -Committee Meeting, Upstairs Conference Room, 3- 4PM 3125 City Council Meeting, 6PM, IPM Sub -Committee Update 411 Completed plan submission deadline for City Council agenda packets 417 NRB Meeting, Council Chambers, 6PM, IPM Sub -Committee Update 418 City Council Meeting, 6PM, Presentation of IPM Plan to City Council ANY PERSON WHO DECIDES TO APPEAL ANY DECISION MADE ON THE ABOVE MA TIERS, WILL NEED A RECORD OF THE PROCEEDINGS AND MAY NEED TO ENSURE THAT VERBATIM RECORD OF THE PROCEEDINGS IS MADE, WHICH RECORD INCLUDES THE TESTIMONY AND EVIDENCE UPON WHICH APPEAL IS TO BE HEARD. SAID APPEAL MUST BE FILED WITH THE CITY CLERK'S OFFICE WITHIN TEN DAYS OF THE DATE OF ACTION. (286.0105 F. S). IN COMPLIANCE WITH THE AMERICANS WITH DISABILITIES ACT (ADA), ANYONE WHO NEEDS SPECIAL ACCOMMODATIONS FOR THIS MEETING SHOULD CONTACT THE CITY'S ADA COORDINATOR AT (407)-589-5330 AT LEAST 48 HOURS PRIOR TO THIS MEETING. TWO OR MORE ELECTED OFFICIALS MAYBE IN ATTENDANCE. 96 of 224 on a SEBASTIAN HOME OF PELICAN ISLAND CITY COUNCIL AGENDA TRANSMITTAL Council Meeting Date: February 12, 2020 Agenda Item Title: Resolution No. R-20-01, Special Exception for industrial activities (contractor trades) as a conditional use within the Commercial Riverfiont (CR) zoning district at 908 US Highway #1 Recommendation: Staff and the Planning and Zoning Commission recommend that the office and showroom activities continue with site updates for parking and landscaping, and denial of Resolution R-20-01 regarding the special exception request. Background: Family Heating and Air, Inc. is requesting a special exception pen -nit for property located at 908 US Highway #1 to allow industrial activities as a conditional use in the CR Zoning District. Industrial activities/contractor trades are prohibited in this classification. The existing I -story commercial building previously contained two rental units with past businesses including antique and thrift stores. Family Heating's operation at this location would consist of a business office, showroom, warehousing, and fleet management of approximately 17 trucks and vans. A special exception permit is necessary when a use, such as industrial activities, is allowed in some other zoning district(s), but not in the subject zoning district. In this case, industrial activities/contractor trades are allowed as a permitted use in the Industrial zoning district, but not in the CR district. The City Council must determine, through the findings of fact and review criteria, that the use will not affect the public safety, health or general welfare by allowing the use in this specific location, and that it meets the intent of the CR zoning district. As required by code, staff has reviewed the application and prepared a staff report. The Planning and Zoning Commission held a public hearing on January 16, 2020, and by a vote of 4-3 made a recommendation to deny the special exception permit, but to allow continuance of the office and showroom activities with conditions. If Aeenda Item Reauires Expenditure of Funds: NIA Attachments: 1. Resolution R-20-01 2. Staff Report 3. Application 4. Minutes of PZ Commission Meeting City Manager Authorization:l Date: 2./— % -1 97 of 224 RESOLUTION NO. R-20-01 A RESOLUTION OF THE CITY OF SEBASTIAN, INDIAN RIVER COUNTY, FLORIDA, APPROVING A SPECIAL EXCEPTION TO SECTION 54-2-5.4(c) OF THE LAND DEVELOPMENT CODE TO ALLOW INDUSTRIAL ACTIVITIES WITHIN THE COMMERCIAL RIVERFRONT ZONING DISTRICT, SPECIFICALLY FOR A PROPERTY LOCATED AT 908 US HIGHWAY #1; PROVIDING FOR CONFLICTS HEREWITH; PROVIDING FOR SCRIVENER'S ERRORS; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, Family Heating & Air, Inc. has filed an application for approval of a special exception to allow industrial activities (contractor trades) as a conditional use in the Commercial Riverfront (CR) Zoning District for a property located at 908 US Highway #1 and owned by G & S Properties and Management, LLC; and WHEREAS, the Planning and Zoning Commission held a public hearing on January 16, 2020, and by a 4-3 vote recommended denial of the special exception; NOW THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF SEBASTIAN, as follows: Section 1. FINDINGS. The City Council of the City of Sebastian does hereby find: a. The approval of the application for a special exception will not be detrimental to the public safety, health or welfare, or be injurious to other properties or improvements within the immediate vicinity in which the property is located based on criteria established in the Land Development Code; and b. The use requested is consistent with the purpose and intent of the respective district, and can be demonstrated to be similar in nature and compatible with the uses allowed in such district; and C. The requested use is consistent with the Comprehensive Plan and the Code of Ordinances. 98 of 224 Section 2. APPROVAL. The special exception application from Family Heating and Air, Inc. for industrial activities as a conditional use in the Commercial Riverfront zoning district, specifically for a property located at 908 US Highway #1, is approved with the following conditions: The special exception is granted for the specified address only, and explicitly for Family Heating and Air. The exception does not transfer to a future business at this address, or with Family Heating and Air to a different location No further site expansion allowed • The property, through a site plan modification process, and with the services of a civil engineer, is brought into compliance with all current codes, including the Riverfront Overlay District requirements, incorporating parking, landscaping, utilities (sewer, if available), and stormwater infrastructure within 9 months from date of approval. Until the site is in compliance, warehousing and fleet operations will remain off- site. • No outside storage • No fleet operations, including parking or loading shall be allowed within the public right-of-way or any shared access easements. • A Business Tax Receipt is applied for and received for the business operation, including a Life Safety permit, if necessary • Permits, approvals, and compliance with the Riverfront Overlay District regulations are received for all signage, including on windows Section 3. CONFLICT. All resolutions or parts of resolutions in conflict herewith are hereby repealed. Section 4. SCRIVENER'S ERRORS. Sections of this resolution may be renumbered or re -lettered and corrections of typographical errors which do not affect the intent may be authorized by the City Manager, or the City Manager's designee, without need of public hearing, by filing a corrected or re -codified copy of same with the City Clerk. Section 5. EFFECTIVE DATE. This resolution shall take effect immediately upon its adoption. 2 99 of 224 The foregoing Resolution was moved for adoption by Councilmember . The motion was seconded by Councilmember and, upon being put into a vote, the vote was as follows: Mayor Ed Dodd Vice Mayor Charles Mauti Councilmember Damien Gilliams Councilmember Jim Hill Councilmember Pamela Parris The Mayor thereupon declared this Resolution duly passed and adopted this 120' day of February, 2020. ATTEST: Jeanette Williams, MMC City Clerk Approved as to form and content for reliance by the City of Sebastian only: City Attorney 3 CITY OF SEBASTIAN, FLORIDA By: Ed Dodd, Mayor 100 of 224 MOF S 13U L HOME Of PELICAN ISLAND Community Development Department Special Exception - Staff Report 1. Project Name: Family Heating and Air 2. Requested Action: Special Exception to Section 54-2-5.4(c) of the Sebastian Land Development Code to allow industrial activities (contractor trades) within the Commercial River -front (CR) Zoning District. 3. Project Location a. Address: 908 US Highway #1 b. Legal: Portions of Lots 8, 9, 10, and 11, all of Lots 12, 13, and 14, less the north ten feet thereof, all lying cast of the right of way of U.S. Highway No. 1, Edgewater Park Subdivision, as shown in Plat Book 2, Page 40, of the Public Records of Indian River County, in addition to property further described by metes and bounds on the warranty deed and survey Parcel ID No. 31-39-06-00016-0000-00008.1 4. Applicant. Family Heating and Air, Inc. Michael Rizzo 908 U.S Highway #1 Sebastian, Florida 32958 (772)571-5529 5. Property Owner: G & S Properties and Management, LLC 167 Deer Run Road Palm Bay, Florida 32907 6. Project Description: a. Narrative of proposed action: Family Heating & Air is requesting a special exception permit for property located at 908 U.S. Highway #1 to allow industrial activities (contractor trades)(see Exhibit A, Land use definition) in the Commercial 101 of 224 Riverfront Zoning District. This use is not allowed as either a permitted or conditional use in the CR zoning. The existing 1 -story commercial building previously contained two rental units with past businesses including antique and thrift stores, and recently a canvas repair shop. Family Heating's operation at this location would consist of a business office, showroom, warehousing, and fleet management of approximately 17 trucks and vans. During the last few months, the business has been operating from this location without issuance of required permits and/or approvals. Currently, there are two contractor trade businesses located across the street — Barker Air Conditioning & Heating at 825 US Highway #1, and Jerry Smith Flooring at 915 US #1. Both businesses were verified to be operational prior to 1995, which was before the adoption of the Riverfront Overlay District and implementation of the Commercial Riverfront zoning designation. Per Article VIII and Section 54-2-8.3 of the Land Development Code, both businesses are lawfully allowed to continue as a nonconforming use, but would not be allowed to expand. b. Current Zoning: Commercial Riverfront (CR) Current Use: Antiques/Thrift (retail) & Canvas repair (skilled services) C. Adjacent Properties: d. Site Characteristics (1) Total Acreage: (2) Current Land Use(s): (3) Water Service: (4) Sanitary Sewer Service: .65 acres commercial building public water septic tank & drainfield 2 102 of 224 Zoning Current Land Use Future Land Use North CR cleaning service RMU business East RM -8 residential - MDR townhomes South CR restaurant — RMU Dunkin Donuts West CR tile & flooring RMU business (grandfathered) d. Site Characteristics (1) Total Acreage: (2) Current Land Use(s): (3) Water Service: (4) Sanitary Sewer Service: .65 acres commercial building public water septic tank & drainfield 2 102 of 224 7. Staff Comments: As detailed in Section 54-2-3.1 of the Land Development Code, a special exception is a use which is provided in the zoning regulations for a particular zoning district or classification and, if controlled, would not affect the public safety, health, or general welfare by allowing the use in an additional zoning district or classification. The Planning and Zoning Commission and City Council may permit such uses in such zoning districts or classifications as special exceptions only if the applicant meets specific provisions and conditions deemed appropriate. Procedurally, staff reviews the special exception application and makes a recommendation to the Planning and Zoning Commission. The Commission shall hold a public hearing and shall indicate whether, in their opinion, the proposed special exception meets the required findings of facts and review criteria established in Section 54-2-6.2(d), including specific criteria of Article VI, if applicable. The Planning and Zoning Commission shall then make a recommendation to City Council to approve, approve with conditions, or deny the application for the special exception. Industrial Activities are allowed as a permitted use in the Industrial (IN) zoning district. To approve a special exception permit to allow industrial activities (contractor trades) in the Commercial Riverfront (CR) zoning district, specific criteria must be met, as well as the following code required findings of fact: 8. Reauired findings of fact (Section 54-2-3.1(a)(3): a. The approval of the application for a special exception will not be detrimental to the public safety, health or welfare, or be injurious to other properties or improvements within the immediate vicinity in which the property is located based on criteria established in Article VI. The proposed warehousing of air conditioning units and service parts - and subsequent fleet operations - are not consistent with other businesses in the district. The business's fleet of 17 ± trucks and vehicles make daily trips to the site to load for their jobs and appointments. Fleet activity at the site generally occurs in the morning. Employees bring the company vehicles — box trucks and vans — to the site to load either mechanical units for installations or required parts for service and repairs. The congregation of vehicles, parking, and traffic flow to the loading area through this limited site is causing congestion and traffic safety hazards in the area during this time (see Exhibit B, photos). Although the applicant has submitted a conceptual operational plan indicating a revised truck pattern to the loading area which would send the vehicles to the rear of the building (see Exhibit C, Conceptual plan), the proposed traffic aisle on the south side could not be implemented because of the existing setback of the 3 103 of 224 building. The drive aisle would need to be a minimum of 12 feet wide and the required landscape buffer 5 to 10 feet wide. Only 14.8 feet is available. Fleet activity is integral with the business's warehousing request at this site. If the warehousing use is removed, along with the truck visits, daily traffic from the office and showroom uses only would then be comparable with traffic from other existing businesses in the zoning district. b. The use requested is consistent with the purpose and intent of the respective district, and can be demonstrated to be similar in nature and compatible with the uses allowed in such district. The Commercial Riverfront district broadly includes such uses as medical services, hotels, business and professional offices, bars and restaurants, and retail. However, when the vision for the riverfront redevelopment area was approved, it was intended to not include industrial type activities. The proposed office and showroom uses would be compatible with the general uses allowed in the area. However, the proposed warehousing use which entails daily loading and unloading activities, and subsequent fleet operations and truck traffic, is not compliant with the intent and purpose of the established district and surrounding uses. C. The requested use is consistent with the Comprehensive Plan and the Code of Ordinances. From the City's Comprehensive Plan Future Land Use Element, the following policies state: Policv 1-1.5.4: General Considerations for Allocating Industrial Land Use: 'T Land shall be allocated to industrial uses in a manner which allows for separation and co -location of industrial activities capable of complying with the most restrictive performance standards and exhibiting minimal adverse impacts on surrounding development." Policv 1-2.2.2: Improve the Function of the Downtown as the Central Commercial Core Area: "Commercial development decisions shall promote the function of the Downtown central commercial core area as a center for government and institutional services as well as a focal point for retail trade, business and professional offices, and civic and cultural enrichment." 4 104 of 224 The proposed warehousing and fleet operations are not consistent with the above Comprehensive Plan Policies. 9. Conditions of approval (Section 54-2-3.1(a)(4): In approving an application for a special exception under this section, the City Council may require such conditions as will, in its judgment, substantially secure the objectives and intent of the zoning regulations. Staff opines that warehousing and fleet operations do not meet the intent of the district or zoning regulations, but that the office and showroom could continue as permitted uses with the conditions noted in #13. 10. Planning and Zoning Commission findings (Section 54-2-6.2(d): Any approval with or without conditions shall be rendered only after a finding by the Planning and Zoning Commission and the City Council that the proposed use satisfies the following criteria: (1). Is so designed, located and proposed to be operated so that the public health, safety and welfare will be protected. See #8a above. (2). Does not present an unduly adverse effect upon other properties in the impacted area in which it is located. The morning fleet activity occurs approximately at the same time as the influx of customer activity at the adjacent Dunkin Donuts, during its a.m. peak. The two properties have a shared access easement with a driveway on US #l. Fleet traffic entering through this driveway will affect customers trying to exit from the same egress. (3). Based on the scale, intensity and operation of the use, shall not generate unreasonable noise, traffic, congestion, or other potential nuisances or hazards to contiguous residential properties. River Oaks Townhomes abuts the subject property from the east (rear). Consideration should be given to the requested special exception and the proximity of the townhomes. Per their approved site plan, the closest residential unit is fifteen feet from Family's rear property line. The additional industrial activity (warehousing and fleet), as compared to normal commercial activity, may adversely impact the neighbors. Although increased buffering would be required, morning truck noise along with loading and unloading activity, is a concern. 5 105 of 224 (4). Conforms to all applicable provisions of the district in which the use is to be located. Currently, the site is in non-compliance with many of the regulations of the district, including general parking, landscaping, and stormwater requirements, along with unpermitted signage. (5). Satisfies specific criteria stipulated for the respective conditional use described in this article in Section 54-2-6.4, which states: [There are no specified conditional use criteria for industrial activities identified in the Land Development Code as this is a permitted use in the IN zoning district.] (6). Is consistent with the Code of Ordinances and Comprehensive Plan. As noted above, the request is inconsistent with the Code of Ordinances and Comprehensive Plan. 11. Additional Comments: 1) Within the past twelve months, the city was approached by several different contractors (roofing and fencing) inquiring about operating their business from existing sites on US Highway #1 located in the CR zoning district. They had also proposed warehousing their product and maintaining their vehicles from the sites. After being informed of the district regulations, both Hippo Roofing (1716 US #1) and Pro Fencing, LLC (1004 US #1) revised their proposed business plans to use the buildings for office use only. 2) The subject site is old, and was constructed before 1980 without any formal site plan. Previous businesses over the years have been typically retail, same as the original use. As such, the site has not been required to comply with current codes since the nonconformities have not increased, nor a more intense use approved for the site. As noted above, the property currently does not comply with current parking, landscaping, stormwater, or signage regulations. After review of both surveys (See Exhibit D, original survey), and observation of the location of easements, building and setbacks, existing drive aisles, trees, and connection with the adjacent commercial property (no information for the location of the septic and drainfield was provided), staff opines that compliance with Land Development Code requirements will be challenging to modify the site for warehousing, loading, and fleet activity given the existing parameters of the property. The property is within the CRA district and would be eligible for FSL grant monies to help with signage and landscaping. A 106 of 224 12. Planning and Zoning Commission Action: The Planning and Zoning Commission held a public hearing on January 16, 2020 to consider Family Heating and Air's request for a special exception to allow industrial activities at 908 US Highway #1 in the Commercial Riverfront zoning district. By a 4-3 vote, the Commission recommended that City Council deny the special exception request, but with the conditions noted below in item #13 13. Staff Recommendation: A. Based on consideration of the intent of the Riverfront Overlay and CR zoning districts, and anticipated site plan issues to accommodate warehousing and fleet operations at this site, staff recommends denial of the Special Exception application and Resolution R-20-01; and B. Based on permitted uses allowed within the district, staff recommends continuance of the office and showroom activities with the followine conditions: + That a Business Tax Receipt be obtained for the office and showroom use only with warehousing and fleet operations to be conducted from an off-site location in an appropriate zoning district + Permits, approvals, and compliance with the Riverfront Overlay District regulations are received for all signage, including windows • A site plan modification must be submitted for review which includes a code compliant parking plan (for professional office) with required striping, traffic safety signage, and Handicapped parking • Landscaping along US #1 frontage to be installed which shall include hedging and trees that meet district standards Prepared by Dk Bosworth, Planner Date N 107 of 224 Exhibit A § 54-5-22.3 SEBASTIAN LAND DEVELOPMENT CODE (30) Vehicular service and maintenance. Establishments for the dispensing of motor fuels and related products at retail and having pumps, underground storage tanks and other facilities for such activity and which may include the retail sale of minor automobile parts and accessories such as tires, batteries, spark plugs, fan belts, shock absorbers, mirrors, floor mats, cleaning and polishing materials and similar items, and which may include the inspection, servicing or minor repair of motor vehicles. These services shall not include body repair and painting, frame straightening, or tire recapping or vulcanizing. (31) Veterinary medical services. The provision of animal medical care and treat- ment by a Florida licensed veterinarian. (32) Wholesale trades and services. The display, limited storage and sale of goods to other firms for resale. (d) Industrial activities. The following compatible land uses shall be considered industrial activities: (1) Warehousing, storage and wholesaling within enclosed buildings. (2) Mechanical repair and service, including but not limited to, machine shops and vehicular repair, service and maintenance. (3) Light manufacturing including skilled trades and services, light processing of woods, synthetics, and metal fabrication, assembly and distribution functions, electronics, research and development, and similar uses. (4) Building materials supply and storage, and contractor's storage. (5) Accessory uses to those described above. — (6) Outside storage. (Ord. No. 0-18-01, § 2, 6-13-2018; Ord. No. 0-19-01, § 1, 3-13-2019) Supp. No. 17 LDC22:40 108 of 224 Permit Application No. SEDTN City of Sebastian HOME Of 1ILWAN151AND Development Order Application Applicant (if not owner, written authorization (notarized) from owner is required) Name: n alp, i�1 " I�I')C) �n� 1t 62 �, C_ Address: 90,6 L� S w J- p Phone Number; ( } - FAX Number: E -Mail: �izzc�'�rn�l1(OLC gmCL' CC , Owner (if different from applicant) E Name: K( � &,,161 `� - I , ► \ y 2 o S {�Q�r�T I &S /V(/�1ttA[, T LLC__ Address: I 3a �� ►� � s 5E6 4L 2�55-y beek- QU-j zoo i Phone Number. ( ) - FAX Number; P V-,-3' ®� 7,� L y � - .5- �7 f E -Mail: Title of permit or action requested: PLEASE COMPLETE ONLY THOSE SECTIONS WHICH ARE NECESSARY FOR THE PERMIT OR ACTION THAT YOU ARE REQUESTING. COPIES OF ALL MAPS, SURVEYS, DRAWINGS, ETC. SHALL SE ATTACHED AND 8-112" BY 11" COPIES OF ANY ATTACHMENTS SHALL BE INCLUDED. ATTACH THE APPROPRIATE SUPPLEMETAL INFORMATION FORM. A. Project Name (if applicable): / 1 8. Site Information Address: g -- o � �s #Wy �% Lot: lock: Unit: Subdivision- r✓�o��� t ,�rz 1� Indian River County Parcel #: Zoning Classification Future Land Use: OM M Existin Ude Proposed Use: C. Detailed description of proposed activity and purpose of the requested permit or action (attach extra sheets if necessarv): r B t f 2 ��� t Vn-�-� 04 C_A_ 1 /J41 R l73 do - DATE RECEIVED:la-4 17/ i 9'j FEE PAID: $ ��(�, RECEIVED BY: tiff 117 of 224 Permit Application No. I D. Project Personnel: A ent: M, CJA,tiq� ' Name: Address � ( � W �ot Phone Number: ) - FAX Number: ( ) E -Mail: ycv Attorney: �%J Name: Address Phone Number: ( ) - FAX Number: ( ) E -Mail Engineer: Name: Address Phone Number: ( ) - FAX Number: ( ) E -Mail: Surveyor: — - Name: — - -- 8 t L4— t(J A_ l PS_ Al kA n w 1 T IV 0 Lo Address l ,, n 5-DQD u5 tf u-tx_ P - V EQU f 3 aq ct- Phone Number: l FAX Number: E -Mail: iuww. V_ 10 5u 120usfr*s I. BEING FIRST DULY SWORN, DEPOSE AND SAY THAT: _ I AM THE OWNER _ I AM THE LEGAL REPRESENTATIVE OF THE OWNER OF THE PROPERTY DESCRIBED WHICH IS THE SUBJECT MATTER OF THIS APPLICATION, AND THAT ALL THE INFORMATION, MAPS, DATA AND/OR SKETCHES PROVIDED IN THIS APPLICATION ARE ACCURATE AND THE BEST OF MY KNOWLEDGE AND BELIEF. SIGNATU E DATE SWORN T ND SUBSCRIBED BEFORE ME BY WHO IS PERSONALLY KNOWN TO ME OR PRODUCED A5 IC}ENTiFIGATION, TH15_ �'I DAY OF 20 NOTARY'S SIGNATURE[% v� PRINTED NAME OF NOTARY COMMISSION NO./EXPIRATION SEAL: :q *'tG • MICHELLE FAULKNER _.z commission # GG 112348 Expires July 20, 2021 118 of 224 8m dad Til a Troy Fain Insurance 800 7019 Permit Application No. The following is required for all comprehensive plan amendments, zoning amendments (including rezoning), site plans, conditional use permits, special use permits, variances, exceptions, and appeals. IIWE, _ THE OWNER(S) 1 _ THE LEGAL REPRESENTATIVE OF THE OWNER(S) OF THE PROPERTY DESCRIBED WHICH IS THE SUBJECT OF THIS APPLICATION, HEREBY AUTHORIZE EACH AND EVERY MEMBER OF THE ?' Z. ' P ^1 e(XA Ve.l1_ BOARD/COMMISSION OF THE CITY OF SEBASTIAN TO PHYSICALLY ENTER UPON THE PROPERTY AND VIEW THE PROPEkTY IN CONNECTION WITH MY/OUR PENDING APPLICATION. I/WE HEREBY WAIVE ANY OBJECTION OR DEFENSE I/WE MAY HAVE, DUE TO THE QUASI-JUDICIAL NATURE OF THE PROCEEDINGS, RESULTING FROM ANY BOARD/COMMISSION MEMBER ENTERING OR VIEWING THE PROPERTY, INCLUDING ANY CLAIM OR ASSERTION THAT MY/OUR PROCEDURAL OR SUBSTANTIVE DUE PROCESS RIGHTS UNDER THE FLORIDA CONSTITUTION OR THE UNITED STATES CONSTITUTION WERE VIOLATED BY SUCH ENTERING OR VIEWING, THIS WAIVER AND CO SEEING SIGNED BY ME/US VOLUNTARILY AND NOT AS A RESULT OF ANY COERCION APPLIED OR PROMISES MADEy M Y_ AGENT, CONTRACTOR OR OFFICIAL OF THE CITY OF SEBASTIAN. SIGNATUR4ad DATSworn to re me bywho is e or produced as identifiay of �/�y/1��7L�7¢ 20� Notary's Signature 11 Printed Name of Notary / =e- I Sof Commission No./Expiration Seal: / GEORGIA L IRISH .r° • Notary Public - State of Florida Commission 4 GG 337321 ` my Gomm. Expires Sep 16, 2023 Bonded through National Notary Assn. 119 of 224 Permit Application No. "ff Y`X Supplemental Information UPSpecial Use Permit (ATTACH ADDITIONAL PAGES IF NECESSARY.) HOME OF PELICAN ISLAND 1. Describe the use for which this special use permit is being requested: .00, 2. Describe how the granting of the special use permit will not be detrimental to the public safety, health or welfare or be injurious to other properties or improvements within the immediate vicinity in which the property is located. (Attach additional pages, if necessary) r �/jQ,00 vVJ HAT (f1d,6J m 7- nAJ t�i t� rllO�i C" 3. Describe how the use requested is consistent with the purpose and intent of the respective zoning district, and that the use is similar in nature and compatible with the uses allowed in such district. (Attach additional pages, if necessary): I : ;p (t 19.19 (} <,,V;?1'r.-p COMP-mIt t')I�-�., 4. Attach a list of the names and addresses of all owners of parcels of real property within three hundred (300) feet of the parcel to be considered. 120 of 224 Family Heating and Air Inc As a new company, only 3 years old we have grown very fast. We started out with my partner and my 2 sons and myself . My partners and I have been in the industry for well over 30 yrs in Indian River County, a combined total of over 70 plus years of knowledge in the HVAC business. We all have worked and learned from some of the best, and I myself have learned from one of the leading A/C companies in Indian River County Arnold Air. Mr Leo Arnold gave me chance to learn and grow from him when I moved here in 1990. But now Family Heating and Air has reached a point of new growth and with this new building and the exposure on US 1,, we have seen an improvement of traffic with our customers and walkins. The showroom can now showcase our products where people can come and see what they will receive with a new a/c system. And the many accessories that can go with keeping your home cool in these hot summers. We are taking air condintioning to another level. A true service company with the ability to sell. Not the sales company with the ability to service, like all the other local companies are. We now employ 26 young family men and women and we are looking to grow our family.To help in this community were we live and thrive. Thank you Michael J Rizzo 121 of 224 PLANNING AND ZONING COMMISSION MINUTES OF MEETING OF JANUARY 16, 2020 PAGE 2 A. Public Hearing -- Recommendation to City Council -- Special Exception Request -- Industrial Activities (Contractor Trades) in Commercial Riverfront Zoning District -- 908 US Highway #1 -- Family Heating and Air, Inc. Mr. Anon read the requested action into the record. Ms. Kautenburg inquired if there has been any ex parte communication among any of the Committee members. All indicated no. Ms. Kautenburg called upon the applicant to present his testimony. Mr. Mike Rizzo stated his business is a heating and air conditioning company. He wanted his business to get more exposure in the community to increase their business and their recognition in the City. He stated he does not understand why his business is being classified as an industrial enterprise. He would like a little more explanation on that. Ms. Kautenburg stated that when staff makes their presentation that will be reviewed in detail. She explained that the City requires the special exception because what is being proposed to be done on the site does not comply with what the Code calls for. Mr. Rizzo stated he was unaware of that. Ms. Kautenburg asked for questions of the applicant by any Committee members. Mr. Hughan: • Inquired how Mr. Rizzo plans to control the traffic going into and out of the south entrance next to the donut shop. Mr. Rizzo said he is not opposed to telling his people not to use that entrance. He further explained that their traffic is mainly between 7:30 and 8:00 a.m. There is not much traffic after that time. • Asked for more information on how Mr. Rizzo plans to direct his traffic to the south side of the building and then around the building, as it appears there is not enough room there. Mr. Rizzo stated he had spoken to Ms. Bosworth regarding that. He presented a 122 of 224 PLANNING AND ZONING COMMISSION MINUTES OF MEETING OF JANUARY 16, 2020 PAGE 3 loading and unloading system to Ms. Bosworth. He was then advised that it was the opinion of City staff that there was not enough room. He said he could have some of his service techs start a little bit later to decrease the flow of traffic in that area during the 7 to 8 o'clock time frame. Mr. Qizilbash: • Inquired as to what is behind the building and is there a septic system there. Mr. Rizzo said the septic is on the north side of the building between the building and the dumpster. Ms. Bosworth stated that staff has provided as part of the packet Exhibits C and D which was a current survey that did show where the concrete is. It didn't show the easements or the septic tank. Then there was an older survey in the file that did show the easements from the subdivision, but neither of those surveys showed where the septic tank or drain field were. Mr. Qizilbash stated he noted there is room for additional parking in the rear of the building on the north side. If trucks could be parked there, that would help. Mr. Rizzo stated he could limit the truck parking to the point where there is only one truck on the site during nonworking hours. He stated that 90 percent of his trucks now go home, but he could let 99 percent of them go home. Mr. Christino: • He has been to that location three times over the last week, especially at the 8 o'clock hour. He stated this morning there were 10 trucks in the parking lot. It seems that at 8 o'clock the trucks leave and go out to the jobs. In the back of the building he saw one truck parked. There is not much more room than that. He did notice the dumpster and a compressor. Since there are condominiums behind the building, he is concerned that this equipment etc. does not become an eyesore. Mr. Rizzo explained that the process has been slowed down in the way they are proceeding with their plans. He wants the business to look presentable in order to entice people to come in. The dumpster was there before he moved in, and he is just using it. He has told City staff that he will build a fence to create a buffer for the residents in back of his property. 123 of 224 PLANNING AND ZONING COMMISSION MINUTES OF MEETING OF JANUARY 16, 2020 PAGE 4 Mr. Christino stated his main concern is with the trucks being parked in front of the building and in the grass along Route 1. Mr. Rizzo stated that his former landlord is allowing him to park some of his trucks at his old business site until these issues can be worked out with the City. • Inquired why Mr. Rizzo didn't come to the Planning and Zoning Department when he was applying for permits, etc. Mr. Rizzo stated he had been unaware that there was a rule like this, so he was unaware that he was not in compliance. Mr. Christino asked if the landlord/owner didn't inform Mr. Rizzo that this site was in a riverfront commercial district. Mr. Rizzo stated that he leased the property through Re/Max, and they didn't notify him that the property was in the riverfront district. They knew exactly what his business did. The landlord never said anything to that effect. No one told him until the day they were contacted by Code Enforcement. He stated he will modify the windows that he installed in order to satisfy the City. He would like to keep the tinted windows, but he has told Ms. Bosworth he will do whatever he has to do. Mr. Carter: • Stated he always likes to see a local business that is growing. He stated he doesn't want to handicap this business, but it needs to conform to what the zoning requires in Sebastian. He appreciates the fact that Mr. Rizzo is willing to work with City staff on this matter. Mr. Simmons: • Stated it might have been of benefit to have had the property owner here tonight to answer a few questions. Mr. Rizzo stated he had spoken to the owners, and nobody notified him of a problem. The owners do not live here. Mr. Roth: 124 of 224 PLANNING AND ZONING COMMISSION MINUTES OF MEETING OF JANUARY 16, 2020 PAGE 5 • Stated it's unfortunate that Mr. Rizzo put a lot of work and effort into this project already. He sees a problem with location and traffic. Another problem is that this is in an overlay district. • If there is parking behind the building, there will probably need to be some type of security and lighting. He does not see how noise and a lighting condition can be corrected, and this may create a nuisance for the residents of the townhomes. At this point, he feels there is a lot of speculation surrounding this project, and this Committee is being asked to make a recommendation on it without a lot of detail. He suggested tabling it and asking for further information on what could be done to mitigate some of the problems. Mr. Rizzo stated that he could only have one truck that stays on the site, and he could park it alongside the building instead of behind it. He stated that, since they are a 24 -hour -a -day service business, it makes sense for the technicians to have their trucks in their driveways. • Stated that in most situations industrial properties are not compatible with being next door to residential areas. Ms. Kautenburg: • One of her concerns is that the applicant began this venture without finding out what types of permits were required for his business. The sign and parking ordinances in Sebastian are meant to maintain the City as much as possible considering everyone's interests. Mr. Rizzo stated that he had never heard about there being a riverfront district. As far as improving the property to conform to the City's standards, work has been at a standstill until he knows exactly what is going to be required. Mr. Roth stated that, if Mr. Rizzo signed a lease for the property with a realtor, that should have been disclosed at that point. Mr. Rizzo stated it was not. He stated neither did the landlord/owner inform him. • As far as the trucks going home with the technicians at night, there are also parking ordinances for neighborhoods in the City. These trucks would not be permitted to be parked at homes under the parking ordinance. Mr. Christino: 125 of 224 PLANNING AND ZONING COMMISSION MINUTES OF MEETING OF JANUARY 16, 2020 PAGE 6 • Said in support of what Ms. Kautenburg just stated, that is correct. The City cannot have businesses operating with large trucks and marked vans and box trucks, relying on their employees to provide their driveways to park those trucks. He is aware that there are several businesses in the City that do not abide by this parking ordinance. That problem is going to be addressed in the future. He thinks it is a great spot for a retail front along Route 1, but there is not enough space to have a warehousing operation there. • Recommended the applicant consider an off-site warehousing operation in the industrial district. Ms. Kautenburg asked for input from the City staff. Ms. Bosworth stated that she thinks Mr. Rizzo knows that staff has echoed this Commission's comments --that staff is happy to see a business that has been in the City for several years grow to where he has this type of business. The City wants him to be successful, but the City must enforce the codes that are appropriate for the City's zoning districts. She emphasized that this is a special exception, not a site plan review. Staff did ask for a conceptual business operational plan. The special exception would be for the use. This is a request to permit a use that is not usually permitted in this Commercial Riverfront Zoning District. Based on Exhibit A (SEE ATTACHED), his business requires an office, showroom, warehousing, and an accessory to that business are the fleet operations. Exhibit A spells out according to the City's Land Development Code that this is an industrial activity. Basically, the applicant is asking to allow an industrial activity in the CR Zoning District. In Article (3) there are specific findings of fact that per this hearing the Commission is to establish whether his request meets those findings. There are also six criteria that this Commission is required to review and verify if those are being met. Ms. Bosworth reviewed those criteria for the Committee. In staffs report it is stated how staff sees whether the applicant is meeting these findings of fact and these criteria. Staff has offered their recommendation of what will be good for the business but also allowable for that site. Staff feels that the truck traffic in and out of the site could be hazardous to traffic safety of the adjacent business. Ms. Bosworth reviewed the conditions for approval contained in the Staff Recommendation section of the attachment to the agenda packet. Staff feels that the 126 of 224 PLANNING AND ZONING COMMISSION PAGE 7 MINUTES OF MEETING OF JANUARY 16, 2020 business office and showroom operation are allowable, but not the fleet and warehousing operation. She stated that, based on what City Council may decide, if there is approval for the special exception, staff recommends getting full civil engineer drawings as one of the conditions, with stormwater, a parking plan, possible utilities, and full compliance with the Riverfront Overlay District codes. Mr. Anon stated it would be appropriate at this point to hear if the applicant has any questions of the staff. Mr. Rizzo asked for clarification that, no matter what the Commission decides tonight, this will still go before City Council next month. Ms. Bosworth stated yes, that would be on February 12. Ms. Kautenburg asked for input from anyone from the public in attendance who is in favor of this action. Seeing none, she asked for input from anyone from the public who wishes to speak in opposition to the request. Ben Hocker, Sebastian, stated he has seen this operation in the commercial area. He has seen multiple trucks blocking the area multiple times. He sees this as a case where someone rented the property without getting all the pertinent information on what is permitted on the property. He opined that the landlord and/or the owner of the property is at fault by not informing Mr. Rizzo what the lease arrangements would be. He called attention to the sign that was erected not being in accord with the sign ordinance in the City. He also stated that this should be described as a nonconforming use. Ms. Kautenburg asked for final comments from the staff. Ms. Bosworth reviewed the recommendations contained in their report. Ms. Kautenburg called for discussion and questions from the Commission members. Mr. Simmons: • Stated his recommendation would be to deny the special request. Mr. Roth: • Brought up the proximity of this property to the old railroad station. That would potentially be a draw for tourism, and that is something else to be considered in the overall picture for this property. 127 of 224 PLANNING AND ZONING COMMISSION MINUTES OF MEETING OF JANUARY 16, 2020 PAGE 8 • He does not like to say no to any business, but he is not in favor of having all the truck traffic and the warehousing. Mr. Hughan: • Is also concerned with all the truck traffic and the warehouse operation. He is open to having a business there, but not with all the traffic the vehicles will create. Mr. Christino: • Is in agreement with his fellow Commission members. He hopes the applicant's business is successful, but he is of the opinion that a separate industrial property should be procured for the warehousing and operation of the fleet. Mr. Qizilbash: • Is in favor of businesses succeeding. The staff has strict recommendations which will cost a lot of money to implement. He is in favor of granting the special exception. Ms. Kautenburg: • She is in favor of the business office and showroom, but she has a problem with the warehousing and truck traffic into and out of the property. Thus, she would not be in favor of recommending this special exception request unless the staff recommendations were adhered to. Ms. Bosworth stated that this property is eligible also for grant money for the signage and landscaping, which she did tell Mr. Rizzo, and the City will work with Mr. Rizzo to obtain grant money to help with the signage and landscaping. There being no further discussion, Ms. Kautenburg called for a motion. A motion that the Committee accept the special exception to Section 54-2-5.4(c) of the Sebastian Land Development Code to allow industrial activities (contractor trades) within the Commercial Riverfront CR Zoning District with staff recommendations that are listed on Pages 6 and 7 of the document was made by Mr. Carter and seconded by Mr. Qizilbash. Ms. Bosworth clarified that this is the recommendation that does allow the warehousing and fleet operations from that site with a full site plan. Mr. Roth asked if that would be No. 11. Ms. Bosworth stated no, it is No. 12. She stated that No. 11 is what staff is 128 of 224 PLANNING AND ZONING COMMISSION PAGE 9 MINUTES OF MEETING OF JANUARY 16, 2020 recommending. After extended discussion and more clarification from Ms. Bosworth, Mr. Carter withdrew his motion. After more discussion regarding this request among staff, Committee members, and Attorney Anon, a motion to deny the Special Exception but accept the items outlined in Paragraph 11 of staff recommendations was made by Mr. Christino and seconded by Mr. Simmons. Ms. Kautenburg asked for any further discussion. Hearing none, she called for a roll call vote. Roll Call Mr. Hughan -- Yes Mr. Simmons (a) -- Yes Mr. Qizilbash -- No Mr. Christino (a) -- Yes Ms. Kautenburg -- Yes Mr. Carter -- No Mr. Roth -- No Vote was 4-3 in favor. Motion passes. Just to clarify on the record, Ms. Kautenburg verified that the vote was 4-3 denying the Special Exception but including the staff recommendations under Paragraph 11 which would be welcome. Mr. Anon asked the Recording Secretary for a verbal verification of the roll call vote, which was done. 7. Unfinished Business -- None 8. Public Input -- None 9. New Business -- None 10. Commissioners Matters Mr. Roth: • Asked for a point of clarification from Ms. Bosworth regarding some guidance for the Commission when they are reviewing the Livability and the Future Land Use sections of the proposed Comprehensive Plan. 129 of 224 CROP SIEELAS_TV�N . . . . . . . . . . . . HOME OF PELICAN ISLAND COMMUNITY DEVELOPMENT DEPARTMENT 1225 MAIN STREET ■ SEBASTIAN, FLORIDA 32958 TELEPHONE (772) 589-5518 ■ FAX (772) 388-8248 www.cityofsebastian.org PUBLIC NOTICE CITY OF SEBASTIAN INDIAN RIVER COUNTY FLORIDA THE CITY COUNCIL OF THE CITY OF SEBASTIAN, INDIAN RIVER COUNTY, FLORIDA, HAS SCHEDULED A QUASI-JUDICIAL PUBLIC HEARING IN THE CITY COUNCIL CHAMBERS, 1225 MAIN STREET, SEBASTIAN, AT A REGULAR MEETING TO BE HELD ON WEDNESDAY, FEBRUARY 12, 2020 AT 6:00 P.M., TO CONSIDER APPROVING RESOLUTION R-20-01 REGARDING A SPECIAL EXCEPTION TO SECTION 54-2-5.4(c) OF THE LAND DEVELOPMENT CODE TO ALLOW AN INDUSTRIAL ACTIVITY (CONTRACTOR TRADE BUSINESS) AS A CONDITIONAL USE WITHIN THE COMMERCIAL RIVERFRONT (CR) ZONING DISTRICT, SPECIFICALLY FOR A PROPERTY LOCATED AT 908 U.S. HIGHWAY #1. ALL INTERESTED PARTIES MAY APPEAR AT THE HEARING AND BE HEARD WITH RESPECT TO THE PROPOSED SPECIAL EXCEPTION, WHICH APPLICATION IS AVAILABLE FOR REVIEW IN THE COMMUNITY DEVELOPMENT DEPARTMENT. ANYONE WHO MAY WISH TO APPEAL ANY DECISION THAT MAY BE MADE AT THIS HEARING WILL NEED TO ENSURE THAT A VERBATIM RECORD OF THE PROCEEDINGS IS MADE, WHICH RECORD INCLUDES THE TESTIMONY AND EVIDENCE UPON WHICH THE APPEAL IS BASED. IN COMPLIANCE WITH THE AMERICANS WITH DISABILITIES ACT (ADA), ANYONE WHO NEEDS SPECIAL ACCOMMODATIONS FOR THIS MEETING SHOULD CONTACT THE CITY'S ADA COORDINATOR AT (772)-589-5330 AT LEAST 48 HOURS PRIOR TO THE MEETING. PUBLISHED: Tuesday, January 28, 2020 130 of 224 MOF SEBASTIAN ;;M&� HOME OF PELICAN ISLAND CITY COUNCIL AGENDA TRANSMITTAL Council Meetinq Date: February 12, 2020 Aqenda Item Title: Proposed Ordinance 0-20-01 Amending Ordinance 0-19-06 Recommendation: Approve Second Reading Ordinance 0-20-01 Background: The Fire Prevention Code and its reference standards, requires Engineered Fire and Life Safety Systems such as Fire Sprinkler Systems, Fire Alarm Systems and Kitchen Hood Systems be maintained and inspected on a regular basis to ensure they will function properly in the event of an incident. In order to ensure these inspections are being performed as required, the fire protection system reports performed by third party inspection companies for the purpose of inspection, testing and maintenance of Engineered Fire and Life Safety Systems shall be reported to the City of Sebastian Fire Prevention Office through a web based electronic reporting system. A web based electronic reporting system is currently being used locally by Martin County, St. Lucie County and Indian River County Emergency Service Districts. The system tracks compliance and provide a follow up process for correcting deficiencies. As part of the Interlocal Agreement with Indian River County Emergency Services District, the City Fire Prevention Office is responsible for all inspections after the issuance of the certificate of occupancy. This reporting system will bring the City Fire Prevention Office into compliance with the Interlocal Agreement while saving the City time and limited resources. Reporting fire inspection reports through a web based electronic system will directly benefit the city by ensuring compliance with fire and life safety codes, reducing false alarm activity, and providing a safer environment for the community. If Aqenda Item Requires Expenditure of Funds: There is no cost to the City Administrative Services Department Review: City Manager Authorization Date: ';1 Ai/L,9 1-1712 Attachments: 1. Ordinance 0-20-01 131 of 224 ORDINANCE NO. 0-20-01 AN ORDINANCE OF THE CITY OF SEBASTIAN, FLORIDA, AMENDING ORDINANCE 0-19-06; FIRE PREVENTION AND PROTECTION; RENAMING ARTICLE II; ADDING NEW SUB SECTION (b) TO SECTION 42-28, TO REQUIRE ALL FIRE PROTECTION SYSTEM REPORTING BE SUBMITTED ELECTRONICALLY, AS SPECIFIED; RENUMBERING SUB SECTIONS (c) (d) IN SECTION 42-28; PROVIDING FOR SEVERABILITY, PROVIDING FOR CODIFICATION, PROVIDING FOR CONFLICTS, PROVIDING FOR SCRIVENERS ERRORS, AND PROVIDING AN EFFECTIVE DATE. WHEREAS, on September 25, 2019, City Council adopted Ordinance 0-19-06 creating the City of Sebastian Fire Prevention Office which is responsible for the enforcement of the City's fire prevention and protection regulations and the laws and rules of the State Fire Marshal; and WHEREAS, The City has determined it is in the best interest of the Citizens to amend Ordinance 0-19-06 and require that all fire protection system reports performed by third party inspection companies for the purpose of inspection, testing and maintenance on any Engineered Fire and Life Safety Systems in any building shall be submitted to the City of Sebastian Fire Prevention Office electronically through a web - based software system approved by the City of Sebastian Fire Prevention Office; and NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF SEBASTIAN, INDIAN RIVER COUNTY, FLORIDA, AS FOLLOWS: Section 1. Ordinance 0-19-06 is hereby amended to rename Article II and add new Sub Section (b) to Section 42-28 Fire safety inspections, plan review; to read as follows: ARTICLE II. FIRE PREVENTION OFFICE DEPARTne�t►iT Sec. 42-28. Fire safety inspections, plan review. (a) Unless otherwise provided by law, annual fire safety inspections shall be conducted by certified fire inspectors of all buildings specified in the Florida Fire Prevention Code within the city limits. A written report of the inspection shall be provided to the owner or person in charge. The City shall conduct a follow up inspection within forty-five (45) days to verify compliance with violations cited in the annual inspection. If the follow up inspection reveals the building is not in compliance and it 132 of 224 becomes necessary for the City to conduct additional inspection(s) to verify compliance, the occupant or owner of the building shall pay the actual costs of each additional re- inspection. The cost of a re -inspection shall be set by resolution. (b) Reportinq requirements for all Engineered Fire and Life Safetv Systems (Fire Alarm Systems. Fire Sorinkler Systems, Fixed Fire Protection Systems, and all other fire Protection systems). The Fire Marshal shall have the authoritv to require a fire inspection reporting system and the authority to appoint a third party provider as necessary, reasonable and prudent. All fire protection system reports performed by third party inspection companies for the purpose of inspection, testing and maintenance of Enqineered Fire and Life Safety Svstems in anv building, in accordance with the Florida Fire Prevention Code, and its referenced standards, shall be submitted to the City of Sebastian Fire Prevention Office throuqh a web based designed electronic fire inspection reportinq system. Lc�(b�-As specified in the Code of Ordinances of the City of Sebastian, Florida, the Florida Fire Prevention Code or the Florida Building Code, the City shall review all plans and specifications and conduct fire safety inspections for all new occupancies, building renovations or additions, installation of fire protection or detection systems , fire and life safety related installations, special events and site plans. Plan review and inspections shall be performed by a certified fire safety inspector as required by law. The City may charge a reasonable fee to be set by resolution to recover its costs incurred for plan review and inspections. No building or development permit may be issued until the plans for the new occupancies, building renovations or additions, and subdivisions comply with said codes and all fees have been paid. The City shall establish a format to provide for permits and inspections of special events held within the City of Sebastian and establish a fee schedule by a resolution of City Council. Section 2. SEVERABILITY. In the event a court of competent jurisdiction shall determine that any part of this Ordinance is invalid, the remainder of the Ordinance shall not be affected and it shall be presumed that the City Council of the City of Sebastian did not intend to enact such invalid provision. It shall further be assumed that the City Council would have enacted the remainder of this Ordinance without said invalid provision, thereby causing said remainder to remain in full force and effect. Section 3. CONFLICT. All ordinances or parts of ordinances in conflict herewith are hereby repealed. 133 of 224 SECTION 4. SCRIVENER'S ERRORS. Sections of this ordinance may be renumbered or re -lettered and corrections of typographical errors which do not affect the intent may be authorized by the City Manager, or the City Manager's designee, without need of public hearing, by filing a corrected or re -codified copy of same with the City Clerk. Section 5. EFFECTIVE DATE. This Ordinance shall take effect upon its adoption by the City Council. The foregoing Ordinance was moved for adoption by Councilmember . The motion was seconded by Councilmember and, upon being put to a vote, the vote was as follows : Mayor Ed Dodd Vice -mayor Charles Mauti Councilmember Jim Hill Councilmember Damien Gilliams Councilmember Pamela Parris The Mayor thereupon declared this Ordinance duly passed and adopted on this day of January 2020. CITY OF SEBASTIAN, FLORIDA in ATTEST: Jeanette Williams, City Clerk Ed Dodd, Mayor Approved as to form and legality for Reliance by the City of Sebastian only: James Stokes, City Attorney 134 of 224 cmcf SEAT" ;; �--o-_ HOME OF PELICAN ISLAND CITY COUNCIL AGENDA TRANSMITTAL Council Meetina Date: February 12, 2020 Agenda Item Title: Proposed Ordinance 0-20-02 to amend City Code of Ordinances Chapter 46 FLOODS Recommendation: Approve Second Reading Ordinance 0-20-02 Backaround: In 2012 City Council adopted an Ordinance that amended Chapter 46 Floods using the state model ordinance for local floodplain management regulations. This model ordinance was written by the Florida Division of Emergency Management (FDEM) to coordinate with the new floodplain management provisions that were incorporated into the Florida Building Code. The City of Sebastian was one of the first communities to adopt the new model ordinance. FEMA's final approval of the model ordinance included some minor changes. The FDEM has made a commitment to FEMA to have the ordinances that were adopted early on revised to meet the new FEMA regulations. Adopting this ordinance as requested by the FDEM is of utmost importance to the City to maintain our participation in the National Flood Insurance Program (NFIP) which in turn provides discounted rates to City residents with Flood Insurance policies. If Aqenda Item Reauires Expenditure of Funds: There is no cost to the City Administrative Services Department Review: City Manager Authorization Date: �I�I Attachments: 1 . Ordinance 0-20-02 2. Copy of e-mail received from Mr. Conn Cole of Florida Division of Emergency Management 135 of 224 ORDINANCE NO. 0-20-02 AN ORDINANCE BY THE CITY OF SEBASTIAN, FLORIDA AMENDING THE CODE OF ORDINANCES CHAPTER 46 FLOODS TO MAKE MODIFICATIONS TO BRING THE REGULATIONS INTO CONFORMANCE WITH THE MOST CURRENT FEMA -APPROVED, FLOODPLAIN MANAGEMENT ORDINANCE FOR FLORIDA COMMUNITIES THAT IS COORDINATED WITH THE FLORIDA BUILDING CODE; PROVIDING FOR APPLICABILITY AND SEVERABILITY; PROVIDING FOR CODIFICATION, PROVIDING FOR CONFLICTS, PROVIDING FOR SCRIVENERS ERRORS, AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the Legislature of the State of Florida has, in Chapter 166, Florida Statutes, conferred upon local governments the authority to adopt regulations designed to promote the public health, safety, and general welfare of its citizenry; and WHEREAS, the City of Sebastian participates in the National Flood Insurance Program and the City of Sebastian desires to continue to meet the requirements of Title 44 Code of Federal Regulations, Sections 59 and 60, necessary for such participation; and WHEREAS, the Florida Division of Emergency Management identified corrections required by the Federal Emergency Management Agency to bring the City of Sebastian's floodplain management regulations into conformance with the Model Floodplain Management ordinance approved by FEMA in January 2013; and WHEREAS, the Sebastian City Council determined that it is in the public interest to amend the floodplain management regulations to bring the regulations into conformance with the most current Model Floodplain Management Ordinance approved by FEMA for Florida communities. NOW, THEREFORE, BE IT ORDAINED by the City Council of the City of Sebastian that the Code of Ordinances Chapter 46 Floods is amended as set forth in the following amendments, as shown in strikethrough and underline format in Section 2. SECTION 1. RECITALS. The foregoing whereas clauses are incorporated herein by reference and made a part hereof. SECTION 2. AMENDMENTS. The Code of Ordinances Chapter 46 Floods is hereby amended by the following amendments. Chapter 46 - FLOODS ARTICLE I. - ADMINISTRATION DIVISION 1. - GENERALLY 136 of 224 Sec. 46-1. - Title. These regulations shall be known as the "Floodplain Management Ordinance" of the City of Sebastian, hereinafter referred to as "this chapter." Sec. 46-2. - Scope. The provisions of this chapter shall apply to all development that is wholly within or partially within any flood hazard area, including but not limited to the subdivision of land; filling, grading, and other site improvements and utility installations; construction, alteration, remodeling, enlargement, improvement, replacement, repair, relocation or demolition of buildings, structures, and facilities that are exempt from the Florida Building Code; placement, installation, or replacement of manufactured homes and manufactured buildings; installation or replacement of tanks; placement of recreational vehicles; installation of swimming pools; and any other development. Sec. 46-3. - Intent. The purposes of this chapter and the flood load and flood resistant construction requirements of the Florida Building Code are to establish minimum requirements to safeguard the public health, safety, and general welfare and to minimize public and private losses due to flooding through regulation of development in flood hazard areas to: (1) Minimize unnecessary disruption of commerce, access and public service during times of flooding; (2) Require the use of appropriate construction practices in order to prevent or minimize future flood damage; (3) Manage filling, grading, dredging, mining, paving, excavation, drilling operations, storage of equipment or materials, and other development which may increase flood damage or erosion potential; (4) Manage the alteration of flood hazard areas, watercourses, and shorelines to minimize the impact of development on the natural and beneficial functions of the floodplain; (5) Minimize damage to public and private facilities and utilities; (6) Help maintain a stable tax base by providing for the sound use and development of flood hazard areas; (7) Minimize the need for future expenditure of public funds for flood control projects and response to and recovery from flood events, and (8) Meet the requirements of the National Flood Insurance Program for community participation as set forth in the Title 44 Code of Federal Regulations, Section 59.22. Sec. 46-4. - Coordination with the Florida Building Code. This chapter is intended to be administered and enforced in conjunction with the Florida Building Code. Where cited, ASCE 24 refers to the edition of the standard that is referenced by the Florida Building Code. 137 of 224 Sec. 46-5. - Warning. The degree of flood protection required by this chapter and the Florida Building Code, as amended by this community, is considered the minimum reasonable for regulatory purposes and is based on scientific and engineering considerations. Larger floods can and will occur. Flood heights may be increased by man-made or natural causes. This chapter does not imply that land outside of mapped special flood hazard areas, or that uses permitted within such flood hazard areas, will be free from flooding or flood damage. The flood hazard areas and base flood elevations contained in the Flood Insurance Study and shown on Flood Insurance Rate Maps and the requirements of Title 44 Code of Federal Regulations, Sections 59 and 60 may be revised by the Federal Emergency Management Agency, requiring this community to revise these regulations to remain eligible for participation in the National Flood Insurance Program. No guaranty of vested use, existing use, or future use is implied or expressed by compliance with this chapter. Sec. 46-6. - Disclaimer of liability. This chapter shall not create liability on the part of the City Council of the City of Sebastian or by any officer or employee thereof for any flood damage that results from reliance on this chapter or any administrative decision lawfully made thereunder. DIVISION 2. - APPLICABILITY Sec. 46-7. - General. Where there is a conflict between a general requirement and a specific requirement, the specific requirement shall be applicable. Sec. 46-8. - Areas to which this chapter applies. This chapter shall apply to all flood hazard areas within the City of Sebastian, as established in section 46-9. Sec. 46-9. - Basis for establishing flood hazard areas. The Flood Insurance Study for Indian River County, Florida and Incorporated Areas dated December 4, 2012, and all subsequent amendments and revisions, and the accompanying Flood Insurance Rate Maps (FIRM), and all subsequent amendments and revisions to such maps, are adopted by reference as a part of this chapter and shall serve as the minimum basis for establishing flood hazard areas. Studies and maps that establish flood hazard areas are on file at the Office of Community Development, City Hall, City of Sebastian, 1225 Main Street, Sebastian, Florida. (1) Submission of additional data to establish flood hazard areas. To establish flood hazard areas and base flood elevations, pursuant to Article I, Division 5 of this chapter the floodplain administrator may require submission of additional data. Where field surveyed topography prepared by a Florida licensed professional surveyor or digital topography accepted by the 138 of 224 community indicates that ground elevations: a. Are below the closest applicable base flood elevation, even in areas not delineated as a special flood hazard area on a FIRM, the area shall be considered as flood hazard area and subject to the requirements of this chapter and, as applicable, the requirements of the Florida Building Code. b. Are above the closest applicable base flood elevation, the area shall be regulated as special flood hazard area unless the applicant obtains a Letter of Map Change that removes the area from the special flood hazard area. Sec. 46-10. - Other laws. The provisions of this chapter shall not be deemed to nullify any provisions of local, state or federal law. Sec. 46-11. - Abrogation and greater restrictions. This chapter supersedes any ordinance in effect for management of development in flood hazard areas. However, it is not intended to repeal or abrogate any existing ordinances including but not limited to land development regulations, zoning ordinances, stormwater management regulations, or the Florida Building Code. In the event of a conflict between this chapter and any other ordinance, the more restrictive shall govern. This chapter shall not impair any deed restriction, covenant or easement, but any land that is subject to such interests shall also be governed by this chapter. Sec. 46-12. - Interpretation. In the interpretation and application of this chapter, all provisions shall be: (1) Considered as minimum requirements; (2) Liberally construed in favor of the governing body; and (3) Deemed neither to limit nor repeal any other powers granted under state statutes. DIVISION 3. - DUTIES AND POWERS OF THE FLOODPLAIN ADMINISTRATOR Sec. 46-13. - Designation. The building official is designated as the floodplain administrator. The floodplain administrator may delegate performance of certain duties to other employees. Sec. 46-14. - General. The floodplain administrator is authorized and directed to administer and enforce the provisions of this chapter. The floodplain administrator shall have the authority to render interpretations of this chapter consistent with the intent and purpose of this chapter and may establish policies and procedures in order to clarify the application of its provisions. Such interpretations, policies, and procedures shall not have the effect of waiving requirements specifically provided in this chapter without the granting of a variance pursuant to Article I, Division 7 of this chapter. 139 of 224 Sec. 46-15. - Applications and permits. The floodplain administrator, in coordination with other pertinent offices of the community, shall: (1) Review applications and plans to determine whether proposed new development will be located in flood hazard areas; (2) Review applications for modification of any existing development in flood hazard areas for compliance with the requirements of this chapter; (3) Interpret flood hazard area boundaries where such interpretation is necessary to determine the exact location of boundaries; a person contesting the determination shall have the opportunity to appeal the interpretation; (4) Provide available flood elevation and flood hazard information; (5) Determine whether additional flood hazard data shall be obtained from other sources or shall be developed by an applicant; (6) Review applications to determine whether proposed development will be reasonably safe from flooding; (7) Issue floodplain development permits or approvals for development other than buildings and structures that are subject to the Florida Building Code, including buildings, structures and facilities exempt from the Florida Building Code, when compliance with this chapter is demonstrated, or disapprove the same in the event of noncompliance; and (8) Coordinate with and provide comments to the building official to assure that applications, plan reviews, and inspections for buildings and structures in flood hazard areas comply with the applicable provisions of this chapter. Sec. 46-16. — Substantial improvement and substantial damage determinations carting _nd. For applications for building permits to improve buildings and structures, including alterations, movement, enlargement, replacement, repair, change of occupancy, additions, rehabilitations, renovations, substantial improvements, repairs of substantial damage, and any other improvement of or work on such buildings and structures, the floodplain administrator, in coordination with the building official, shall: (1) Estimate the market value, or require the applicant to obtain an appraisal of the market value prepared by a qualified independent appraiser, of the building or structure before the start of construction of the proposed work; in the case of repair, the market value of the building or structure shall be the market value before the damage occurred and before any repairs are made; (2) Compare the cost to perform the improvement, the cost to repair a damaged building to its pre - damaged condition, or the combined costs of improvements and repairs, if applicable, to the market value of the building or structure; (3) Determine and document whether the proposed work constitutes substantial improvement or repair of substantial damage; and (4) Notify the applicant if it is determined that the work constitutes substantial improvement or repair of substantial damage and that compliance with the flood resistant construction requirements of the Florida Building Code and this chapter is required. 140 of 224 Sec. 46-17. - Modifications of the strict application of the requirements of the Florida Building Code. The floodplain administrator shall review requests submitted to the building official that seek approval to modify the strict application of the flood load and flood resistant construction requirements of the Florida Building Code to detennine whether such requests require the granting of a variance pursuant to Article I, Division 7 of this chapter. Sec. 46-18. - Notices and orders. The floodplain administrator shall coordinate with appropriate local agencies for the issuance of all necessary notices or orders to ensure compliance with this chapter. Sec. 46-19. - Inspections. The floodplain administrator shall make the required inspections as specified in Article I, Division 6 of this chapter for development that is not subject to the Florida Building Code, including buildings, structures and facilities exempt from the Florida Building Code. The floodplain administrator shall inspect flood hazard areas to detennine if development is undertaken without issuance of a permit. Sec. 46-20. - Other duties of the floodplain administrator. The floodplain administrator shall have other duties, including but not limited to: (1) Establish, in coordination with the building official, procedures for administering and documenting determinations of substantial improvement and substantial damage made pursuant to section 46-16 of this chapter; (2) Require that applicants proposing alteration of a watercourse notify adjacent communities and the Florida Division of Emergency Management, State Floodplain Management Office, and submit copies of such notifications to the Federal Emergency Management Agency (FEMA); (3) Require applicants who submit hydrologic and hydraulic engineering analyses to support permit applications to submit to FEMA the data and information necessary to maintain the Flood Insurance Rate Maps if the analyses propose to change base flood elevations, flood hazard area boundaries, or floodway designations; such submissions shall be made within six months of such data becoming available; (4) Review required design certifications and documentation of elevations specified by this chapter and the Florida Building Code aF�d—t#is Gh pter to determine that such certifications and documentations are complete,- (5) omplete;(5) Notify the Federal Emergency Management Agency when the corporate boundaries of the City of Sebastian are modified; and (6) Advise applicants for new buildings and structures, including substantial improvements that are located in any unit of the Coastal Barrier Resources System established by the Coastal Barrier Resources Act (Pub. L. 97-348) and the Coastal Barrier Improvement Act of 1990 (Pub. L. 101- 591) that federal flood insurance is not available on such construction; areas subject to this limitation are identified on Flood Insurance Rate Maps as "Coastal Barrier Resource System Areas" and "Otherwise Protected Areas." Sec. 46-21. - Floodplain management records. 141 of 224 Regardless of any limitation on the period required for retention of public records, the floodplain administrator shall maintain and permanently keep and make available for public inspection all records that are necessary for the administration of this chapter and the flood resistant construction requirements of the Florida Building Code, including Flood Insurance Rate Maps; Letters of Map Change; records of issuance of permits and denial of permits; determinations of whether proposed work constitutes substantial improvement or repair of substantial damage; required design certifications and documentation of elevations specified by the Florida Building Code and this chapter; notifications to adjacent communities, FEMA, and the state related to alterations of watercourses; assurances that the flood carrying capacity of altered watercourses will be maintained; documentation related to appeals and variances, including justification for issuance or denial; and records of enforcement actions taken pursuant to this chapter and the flood resistant construction requirements of the Florida Building Code. These records shall be available for public inspection at the office of Community Development, City Hall, City of Sebastian, 1225 Main St., Sebastian, Florida. IDUN 1.1Is] ►C111111109:1110AIN161 Sec. 46-22. - Permits required. Any owner or owner's authorized agent (hereinafter "applicant") who intends to undertake any development activity within the scope of this chapter, including buildings, structures and facilities exempt from the Florida Building Code, which is wholly within or partially within any flood hazard area shall first make application to the floodplain administrator, and the building official if applicable, and shall obtain the required permit(s) and approval(s). No such permit or approval shall be issued until compliance with the requirements of this chapter and all other applicable codes and regulations has been satisfied. Sec. 46-23. - Floodplain development permits or approvals. Floodplain development permits or approvals shall be issued pursuant to this chapter for any development activities not subject to the requirements of the Florida Building Code, including buildings, structures and facilities exempt from the Florida Building Code. Depending on the nature and extent of proposed development that includes a building or structure, the floodplain administrator may determine that a floodplain development permit or approval is required in addition to a building permit. (1) Buildings, structures and facilities exempt from the Florida Building Code. Pursuant to the requirements of federal regulation for participation in the National Flood Insurance Program (44 C.F.R. Sections 59 and 60), floodplain development permits or approvals shall be required for the following buildings, structures and facilities that are exempt from the Florida Building Code and any further exemptions provided by law, which are subject to the requirements of this chapter: a. Railroads and ancillary facilities associated with the railroad. b. Nonresidential farm buildings on farms, as provided in F.S. § 604.50. c. Temporary buildings or sheds used exclusively for construction purposes. d. Mobile or modular structures used as temporary offices. 142 of 224 e. Those structures or facilities of electric utilities, as defined in F.S. § 366.02, which are directly involved in the generation, transmission, or distribution of electricity. f. Chickees constructed by the Miccosukee Tribe of Indians of Florida or the Seminole Tribe of Florida. As used in this paragraph, the term "chickee" means an open -sided wooden but that has a thatched roof of palm or palmetto or other traditional materials, and that does not incorporate any electrical, plumbing, or other non -wood features. g. Family mausoleums not exceeding 250 square feet in area which are prefabricated and assembled on site or preassembled and delivered on site and have walls, roofs, and a floor constructed of granite, marble, or reinforced concrete. h. Temporary housing provided by the Department of Corrections to any prisoner in the state correctional system. i. Structures identified in F.S. § 553.73(10)(k), are not exempt from the Florida Building Code if such structures are located in flood hazard areas established on Flood Insurance Rate Maps. Sec. 46-24. - Application for a permit or approval. To obtain a floodplain development permit or approval the applicant shall first file an application in writing on a form furnished by the community. The information provided shall: (1) Identify and describe the development to be covered by the permit or approval. (2) Describe the land on which the proposed development is to be conducted by legal description, street address or similar description that will readily identify and definitively locate the site. (3) Indicate the use and occupancy for which the proposed development is intended. (4) Be accompanied by a site plan or construction documents as specified in Article I, Division 5 of this chapter. (5) State the valuation of the proposed work. (6) Be signed by the applicant or the applicant's authorized agent. (7) Give such other data and information as required by the floodplain administrator. Sec. 46-25. - Validity of permit or approval. The issuance of a floodplain development permit or approval pursuant to this chapter shall not be construed to be a permit for, or approval of, any violation of this chapter, the Florida Building Codes, or any other ordinance of this community. The issuance of permits based on submitted applications, construction documents, and information shall not prevent the floodplain administrator from requiring the correction of errors and omissions. Sec. 46-26. - Expiration. A floodplain development permit or approval shall become invalid unless the work authorized by such permit is commenced within 180 days after its issuance, or if the work authorized is suspended or abandoned for a period of 180 days after the work commences. Extensions for periods of not more than 180 days each shall be requested in writing and justifiable cause shall be demonstrated. Sec. 46-27. - Suspension or revocation. 143 of 224 The floodplain administrator is authorized to suspend or revoke a floodplain development pen -nit or approval if the permit was issued in error, on the basis of incorrect, inaccurate or incomplete information, or in violation of this chapter or any other ordinance, regulation or requirement of this community. Sec. 46-28. - Other permits required. Floodplain development permits and building permits shall include a condition that all other applicable state or federal pen -nits be obtained before commencement of the pennitted development, including but not limited to the following: (1) The St. Johns River Water Management District; F.S. § 373.036. (2) Florida Department of Health for onsite sewage treatment and disposal systems; F.S. § 381.0065, and Chapter 64E-6, F.A.C. (3) Florida Department of Environmental Protection for construction, reconstruction, changes, or physical activities for shore protection or other activities seaward of the coastal construction control line; F.S. § 161.041444.141. (4) Florida Department of Environmental Protection for activities subject to the Joint Coastal Permit; F.S. § 161.055. (5) Florida Department of Environmental Protection for activities that affect wetlands and alter surface water flows, in conjunction with the U.S. Army Corps of Engineers; Section 404 of the Clean Water Act. (6) Federal permits and aoorovals. DIVISION 5. - SITE PLANS AND CONSTRUCTION DOCUMENTS Sec. 46-29. - Information for development in flood hazard areas. The site plan or construction documents for any development subject to the requirements of this chapter shall be drawn to scale and shall include, as applicable to the proposed development: (1) Delineation of flood hazard areas, floodway boundaries and flood zone(s), base flood elevation(s), and ground elevations if necessary for review of the proposed development. (2) Where flood hazard areas, base flood elevations, or floodway data are not included on the FIRM or in the Flood Insurance Study, they shall be established in accordance with section 46- 30(2) or 3 of this chapter. (3) Where the parcel on which the proposed development will take place will have more than 50 lots or is larger than five acres and the base flood elevations are not included on the FIRM or in the Flood Insurance Study, such elevations shall be established in accordance with section 46- 30(1) Gi:-� of this chapter. (4) Location of the proposed activity and proposed structures, and locations of existing buildings and structures; in coastal high hazard areas, new buildings shall be located landward of the reach of mean high tide. (5) Location, extent, amount, and proposed final grades of any filling, grading, or excavation. (6) Where the placement of fill is proposed, the amount, type, and source of fill material; 144 of 224 compaction specifications; a description of the intended purpose of the fill areas; and evidence that the proposed fill areas are the minimum necessary to achieve the intended purpose. (7) Delineation of the Coastal Construction Control Line or notation that the site is seaward of the coastal construction control line, if applicable. (8) Extent of any proposed alteration of sand dunes or mangrove stands, provided such alteration is approved by the Florida Department of Environmental Protection. (9) Existing and proposed alignment of any proposed alteration of a watercourse. The floodplain administrator is authorized to waive the submission of site plans, construction documents, and other data that are required by this chapter but that are not required to be prepared by a registered design professional if it is found that the nature of the proposed development is such that the review of such submissions is not necessary to ascertain compliance with this chapter. Sec. 46-30. - Information in flood hazard areas without base flood elevations (approximate Zone A). Where flood hazard areas are delineated on the FIRM and base flood elevation data have not been provided, the floodplain administrator shall: (1) Reouire the applicant to include base flood elevation data prepared in accordance with currently accepted emineerina practices. L210) Obtain, review, and provide to applicants base flood elevation and floodway data available from a federal or state agency or other source or require the applicant to obtain and use base flood elevation and floodway data available from a federal or state agency or other source_-:-� 1I-4-27-) Where base flood elevation and floodway data are not available from another source, where the available data are deemed by the floodplain administrator to not reasonably reflect flooding conditions, or where the available data are known to be scientifically or technically incorrect or otherwise inadequate: a. Require the applicant to include develop base flood elevation data prepared in accordance with currently accepted engineering practices; or b. Specify that the base flood elevation is two feet above the highest adjacent grade at the location of the development, provided there is no evidence indicating flood depths have been or may be greater than two feet. (4)-(-3) Where the base flood elevation data are to be used to support a Letter of Map Change from FEMA, advise the applicant that the analyses shall be prepared by a Florida licensed engineer in a format required by FEMA, and that it shall be the responsibility of the applicant to satisfy the submittal requirements and pay the processing fees. Sec. 46-31. - Additional analyses and certifications. As applicable to the location and nature of the proposed development activity, and in addition to the requirements of this section, the applicant shall have the following analyses signed and sealed by a Florida licensed engineer for submission with the site plan and construction documents: (1) For development activities proposed to be located in a regulatory floodway, a floodway encroachment analysis that demonstrates that the encroachment of the proposed development will not cause any increase in base flood elevations; where the applicant proposes to undertake development activities that do increase base flood elevations, the applicant shall submit such analysis to FEMA as specified in section 46-32 of this chapter and shall submit the Conditional Letter of Map Revision, if issued by FEMA, with the site plan and construction documents. 145 of 224 (2) For development activities proposed to be located in a riverine flood hazard area for which base flood elevations are included in the Flood Insurance Study or on the FIRM and floodways have not been designated, hvdrologic and hvdraulic analvses that a-floodway-enGr-eaGhfn6At anaEyss-6 -which demonstrates that the cumulative effect of the proposed development, when combined with all other existing and anticipated flood hazard area encroachments, will not increase the base flood elevation more than one foot at any point within the community. This requirement does not apply in isolated flood hazard areas not connected to a riverine flood hazard area or in flood hazard areas identified as Zone AO or Zone AH. (3) For alteration of a watercourse, an engineering analysis prepared in accordance with standard engineering practices which demonstrates that the flood -carrying capacity of the altered or relocated portion of the watercourse will not be decreased, and certification that the altered watercourse shall be maintained in a manner which preserves the channel's flood -carrying capacity; the applicant shall submit the analysis to FEMA as specified in section 46-32 of this chapter. (4) For activities that propose to alter sand dunes or mangrove stands in coastal high hazard areas (Zone V), an engineering analysis that demonstrates that the proposed alteration will not increase the potential for flood damage. Sec. 46-32. - Submission of additional data. When additional hydrologic, hydraulic or other engineering data, studies, and additional analyses are submitted to support an application, the applicant has the right to seek a Letter of Map Change from FEMA to change the base flood elevations, change floodway boundaries, or change boundaries of flood hazard areas shown on FIRMs, and to submit such data to FEMA for such purposes. The analyses shall be prepared by a Florida licensed engineer in a format required by FEMA. Submittal requirements and processing fees shall be the responsibility of the applicant. DIVISION 6. - INSPECTIONS Sec. 46-33. - General. Development for which a floodplain development permit or approval is required shall be subject to inspection. (1) Development other than buildings and structures. The floodplain administrator shall inspect all development to determine compliance with the requirements of this chapter and the conditions of issued floodplain development permits or approvals. (2) Buildings, structures and facilities exempt from the Florida Building Code. The floodplain administrator shall inspect buildings, structures and facilities exempt from the Florida Building Code to determine compliance with the requirements of this chapter and the conditions of issued floodplain development permits or approvals. a. Buildings, structures and facilities exempt from the Florida Building Code, lowest floor inspection. Upon placement of the lowest floor, including basement, and prior to further vertical construction, the owner of a building, structure or facility exempt from the Florida Building Code, or the owner's authorized agent, shall submit to the floodplain administrator: 1. If a design flood elevation was used to determine the required elevation of the lowest floor, the certification of elevation of the lowest floor prepared and sealed by a Florida licensed professional surveyor; or 2. If the elevation used to determine the required elevation of the lowest floor was determined in accordance with section 46-30(3)b 4644.2}b of this chapter, the 146 of 224 documentation of height of the lowest floor above highest adjacent grade, prepared by the owner or the owner's authorized agent. b. Buildings, structures and facilities exempt from the Florida Building Code, final inspection. As part of the final inspection, the owner or owner's authorized agent shall submit to the floodplain administrator a final certification of elevation of the lowest floor or final documentation of the height of the lowest floor above the highest adjacent grade; such certifications and documentations shall be prepared as specified in section 46-33(2)a of this chapter. (3) Manufactured homes. The building official shall inspect manufactured homes that are installed or replaced in flood hazard areas to determine compliance with the requirements of this chapter and the conditions of the issued permit. Upon placement of a manufactured home, certification of the elevation of the lowest floor shall be submitted to the building official. DIVISION 7. - VARIANCES AND APPEALS Sec. 46-34. - General. The board of adjustment as established by the city council shall hear and decide on requests for appeals and requests for variances from the strict application of this chapter. Pursuant to F.S. § 553.73(5), the board of adjustment shall hear and decide on requests for appeals and requests for variances from the strict application of the flood resistant construction requirements of the Florida Building Code. This section does not apply to Section 3109 of Florida Building Code, Building. Sec. 46-35. - Appeals. The board of adjustment shall hear and decide appeals when it is alleged there is an error in any requirement, decision, or determination made by the floodplain administrator in the administration and enforcement of this chapter. Any person aggrieved by the decision of the board of adjustment may appeal such decision to the Circuit Court, as provided by Florida Statutes. Sec. 46-36. - Limitations on authority to grant variances. The board of adjustment shall base its decisions on variances on technical justifications submitted by applicants, the considerations for issuance in section 46-39 of this chapter, the conditions of issuance set forth in section 46-40 of this chapter, and the comments and recommendations of the floodplain administrator and the building official. The board of adjustment has the right to attach such conditions as it deems necessary to further the purposes and objectives of this chapter. (1) Restrictions in floodways. A variance shall not be issued for any proposed development in a floodway if any increase in base flood elevations would result, as evidenced by the applicable analyses and certifications required in section 46-31 of this chapter. Sec. 46-37. - Historic buildings. A variance is authorized to be issued for the repair, improvement, or rehabilitation of a historic building that is determined eligible for the exception to the flood resistant construction 147 of 224 requirements of the Florida Building Code, Existing Building, Owl)( i- 12 Uliapter 11 Historic Buildings, upon a detennination that the proposed repair, improvement, or rehabilitation will not preclude the building's continued designation as a historic building and the variance is the minimum necessary to preserve the historic character and design of the building. If the proposed work precludes the building's continued designation as a historic building, a variance shall not be granted and the building and any repair, improvement, and rehabilitation shall be subject to the requirements of the Florida Building Code. Sec. 46-38, - Functionally dependent uses. A variance is authorized to be issued for the construction or substantial improvement necessary for the conduct of a functionally dependent use, as defined in this chapter, provided the variance meets the requirements of section 46-36(1), is the minimum necessary considering the flood hazard, and all due consideration has been given to use of methods and materials that minimize flood damage during occurrence of the base flood. Sec. 46-39. - Considerations for issuance of variances. In reviewing requests for variances, the board of adjustment shall consider all technical evaluations, all relevant factors, all other applicable provisions of the Florida Building Code, this chapter, and the following: (1) The danger that materials and debris may be swept onto other lands resulting in further injury or damage; (2) The danger to life and property due to flooding or erosion damage; (3) The susceptibility of the proposed development, including contents, to flood damage and the effect of such damage on current and future owners; (4) The importance of the services provided by the proposed development to the community; (5) The availability of alternate locations for the proposed development that are subject to lower risk of flooding or erosion; (6) The compatibility of the proposed development with existing and anticipated development; (7) The relationship of the proposed development to the comprehensive plan and floodplain management program for the area; (8) The safety of access to the property in times of flooding for ordinary and emergency vehicles; (9) The expected heights, velocity, duration, rate of rise and debris and sediment transport of the floodwaters and the effects of wave action, if applicable, expected at the site; and (10) The costs of providing governmental services during and after flood conditions including maintenance and repair of public utilities and facilities such as sewer, gas, electrical and water systems, streets and bridges. Sec. 46-40. - Conditions for issuance of variances. Variances shall be issued only upon: (1) Submission by the applicant, of a showing of good and sufficient cause that the unique characteristics of the size, configuration, or topography of the site limit compliance with any 148 of 224 provision of this chapter or the required elevation standards; (2) Determination by the board of adjustment that: a. Failure to grant the variance would result in exceptional hardship due to the physical characteristics of the land that render the lot undevelopable; increased costs to satisfy the requirements or inconvenience do not constitute hardship; b. The granting of a variance will not result in increased flood heights, additional threats to public safety, extraordinary public expense, nor create nuisances, cause fraud on or victimization of the public or conflict with existing local laws and ordinances; and c. The variance is the minimum necessary, considering the flood hazard, to afford relief; (3) Receipt of a signed statement by the applicant that the variance, if granted, shall be recorded in the Office of the Clerk of the Court in such a manner that it appears in the chain of title of the affected parcel of land; and (4) If the request is for a variance to allow construction of the lowest floor of a new building, or substantial improvement of a building, below the required elevation, a copy in the record of a written notice from the floodplain administrator to the applicant for the variance, specifying the difference between the base flood elevation and the proposed elevation of the lowest floor, stating that the cost of federal flood insurance will be commensurate with the increased risk resulting from the reduced floor elevation (up to amounts as high as $25.00 for $100.00 of insurance coverage), and stating that construction below the base flood elevation increases risks to life and property. DIVISION 8. - VIOLATIONS Sec. 46-41. - Violations. Any development that is not within the scope of the Florida Building Code but that is regulated by this chapter that is performed without an issued permit, that is in conflict with an issued permit, or that does not fully comply with this chapter, shall be deemed a violation of this chapter. A building or structure without the documentation of elevation of the lowest floor, other required design certifications, or other evidence of compliance required by this chapter or the Florida Building Code is presumed to be a violation until such time as that documentation is provided. Sec. 46-42. - Authority. For development that is not within the scope of the Florida Building Code but that is regulated by this chapter and that is determined to be a violation, the floodplain administrator is authorized to serve notices of violation or stop work orders to owners of the property involved, to the owner's agent, or to the person or persons performing the work. Sec. 46-43. - Unlawful continuance. Any person who shall continue any work after having been served with a notice of violation or a stop work order, except such work as that person is directed to perform to remove or remedy a violation or unsafe condition, shall be subject to penalties as provided in section 1-10 (General penalty; continuing violations) and section 2-194 (Enforcement procedures) of this Code of Ordinances. 149 of 224 ARTICLE II. - DEFINITIONS DIVISION 1. -GENERALLY Sec. 46-44. - Scope. Unless otherwise expressly stated, the following words and terms shall, for the purposes of this chapter, have the meanings shown in this section. Sec. 46-45. - Terms defined in the Florida Building Code. Where terms are not defined in this chapter and are defined in the Florida Building Code, such terms shall have the meanings ascribed to therm in that code. Sec. 46-46. - Terms not defined. Where terms are not defined in this chapter or the Florida Building Code, such terms shall have ordinarily accepted meanings such as the context implies. DIVISION 2. - DEFINITIONS [Sec. 46-46.5. - Definitions.] [The following words, terms and phrases, when used in this chapter, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:] Alteration of a watercourse. A dam, impoundment, channel relocation, change in channel alignment, channelization, or change in cross-sectional area of the channel or the channel capacity, or any other form of modification which may alter, impede, retard or change the direction and/or velocity of the riverine flow of water during conditions of the base flood. Appeal. A request for a review of the floodplain administrator's interpretation of any provision of this chapter of -a raquofi fer a VaFianee. ASCE 24. A standard titled Flood Resistant Design and Construction that is referenced by the Florida Building Code. ASCE 24 is developed and published by the American Society of Civil Engineers, Reston, VA. Base flood. A flood having a 1 -percent chance of being equaled or exceeded in any given year. [Also defined in FBC, B, Section 1612.2.] The base flood is commonly referred to as the "100 - year flood" or the "1 -percent -annual chance flood." Base flood elevation. The elevation of the base flood, including wave height, relative to the National Geodetic Vertical Datum (NGVD), North American Vertical Datum (NAVD) or other datum specified on the Flood Insurance Rate Map (FIRM). [Also defined in FBC, B, Section 150 of 224 1612.2.] Basement. The portion of a building having its floor subgrade (below ground level) on all sides. [Also defined in FBC, B, Section 1612.2.] Coastal construction control line. The line established by the State of Florida pursuant to F.S. § 161.053, and recorded in the official records of the community, which defines that portion of the beach -dune system subject to severe fluctuations based on a 100 -year storm surge, storm waves or other predictable weather conditions. Coastal high hazard area. A special flood hazard area extending from offshore to the inland limit of a primary frontal dune along an open coast and any other area subject to high velocity wave action from ston-ns or seismic sources. Coastal high hazard areas are also referred to as "high hazard areas subject to high velocity wave action" or "V Zones" and are designated on Flood Insurance Rate Maps (FIRM) as Zone V1—V30, VE, or V. [ Note,- The FBG, B defi " and the , R uses the tefffl %oastal high hazard ar-eas.-2i Design flood. The flood associated with the greater of the following two areas: [Also defined in FBC, B, Section 1612.2.] (1) Area with a floodplain subject to a 1 -percent or greater chance of flooding in any year; or (2) Area designated as a flood hazard area on the community's flood hazard map, or otherwise legally designated. Design flood elevation. The elevation of the "design flood," including wave height, relative to the datum specified on the community's legally designated flood hazard map. In areas designated as Zone AO, the design flood elevation shall be the elevation of the highest existing grade of the building's perimeter plus the depth number (in feet) specified on the flood hazard map. In areas designated as Zone AO where the depth number is not specified on the map, the depth number shall be taken as being equal to two feet. [Also defined in FBC, B, Section 1612.2.] Development. Any man-made change to improved or unimproved real estate, including but not limited to, buildings or other structures, tanks, temporary structures, temporary or permanent storage of equipment or materials, mining, dredging, filling, grading, paving, excavations, drilling operations or any other land disturbing activities. Encroachment. The placement of fill, excavation, buildings, permanent structures or other development into a flood hazard area which may impede or alter the flow capacity of riverine flood hazard areas. Existing building and existing structure. Any buildings and structures for which the "start of construction" commenced before April 9, 1980. [Also defined in FBC, B, Section 1612.2.] Existing manufactured home park or subdivision. A manufactured home park or subdivision for which the construction of facilities for servicing the lots on which the manufactured homes are to 151 of 224 be affixed (including, at a minimum, the installation of utilities, the construction of streets, and either final site grading or the pouring of concrete pads) is completed before April 9, 1980. Expansion to an existing manufactured home park or subdivision. The preparation of additional sites by the construction of facilities for servicing the lots on which the manufactured homes are to be affixed (including the installation of utilities, the construction of streets, and either final site grading or the pouring of concrete pads). Federal Emergency Management Agency (FEMA). The federal agency that, in addition to carrying out other functions, administers the National Flood Insurance Program. Flood or flooding. A general and temporary condition of partial or complete inundation of normally dry land from: [Also defined in FBC, B, Section 1612.2.] (1) The overflow of inland or tidal waters. (2) The unusual and rapid accumulation or runoff of surface waters from any source. Flood damage -resistant materials. Any construction material capable of withstanding direct and prolonged contact with floodwaters without sustaining any damage that requires more than cosmetic repair. [Also defined in FBC, B, Section 1612.2.] Flood hazard area. The greater of the following two areas: [Also defined in FBC, B, Section 1612.2.] (1) The area within a floodplain subject to a 1 -percent or greater chance of flooding in any year. (2) The area designated as a flood hazard area on the community's flood hazard map, or otherwise legally designated. Flood Insurance Rate Map (FIRM). The official map of the community on which the Federal Emergency Management Agency has delineated both special flood hazard areas and the risk premium zones applicable to the community. [Also defined in FBC, B, Section 1612.2.] Flood Insurance Study (FIS). The official report provided by the Federal Emergency Management Agency that contains the Flood Insurance Rate Map, the Flood Boundary and Floodway Map (if applicable), the water surface elevations of the base flood, and supporting technical data. [Also defined in FBC, B, Section 1612.2.] Floodplain administrator. The office or position designated and charged with the administration and enforcement of this chapter (may be referred to as the floodplain manager). Floodplain development permit or approval. An official document or certificate issued by the community, or other evidence of approval or concurrence, which authorizes performance of specific development activities that are located in flood hazard areas and that are determined to be compliant with this chapter. Floodway. The channel of a river or other riverine watercourse and the adjacent land areas that 152 of 224 must be reserved in order to discharge the base flood without cumulatively increasing the water surface elevation more than one foot. [Also defined in FBC, B, Section 1612.2.] Floodway encroachment analysis. An engineering analysis of the impact that a proposed encroachment into a floodway is expected to have on the floodway boundaries and base flood elevations; the evaluation shall be prepared by a qualified Florida licensed engineer using standard engineering methods and models. Florida Building Code. The family of codes adopted by the Florida Building Commission, including: Florida Building Code, Building; Florida Building Code, Residential; Florida Building Code, Existing Building; Florida Building Code, Mechanical; Florida Building Code, Plumbing; Florida Building Code, Fuel Gas. Functionally dependent use. A use which cannot perform its intended purpose unless it is located or carried out in close proximity to water, including only docking facilities, port facilities that are necessary for the loading and unloading of cargo or passengers, and ship building and ship repair facilities; the term does not include long-term storage or related manufacturing facilities, Highest adjacent grade. The highest natural elevation of the ground surface prior to construction next to the proposed walls or foundation of a structure. Historic structure. Any structure that is determined eligible for the exception to the flood hazard area requirements of the Florida Building Code, Existing Building, Chapter 12 Ghaptel: 11" Historic Buildings. Letter of Map Change (LOMC). An official determination issued by FEMA that amends or revises an effective Flood Insurance Rate Map or Flood Insurance Study. Letters of Map Change include: (1) Letter of Map Amendment (LOMA): An amendment based on technical data showing that a property was incorrectly included in a designated special flood hazard area. A LOMA amends the current effective Flood Insurance Rate Map and establishes that a specific property, portion of a property, or structure is not located in a special flood hazard area. (2) Letter of Map Revision (LOMB): A revision based on technical data that may show changes to flood zones, flood elevations, special flood hazard area boundaries and floodway delineations, and other planimetric features. (3) Letter of Map Revision Based on Fill (LOMB -F): A determination that a structure or parcel of land has been elevated by fill above the base flood elevation and is, therefore, no longer located within the special flood hazard area. In order to qualify for this determination, the fill must have been permitted and placed in accordance with the community's floodplain management regulations. (4) Conditional Letter of Map Revision (CLOMR): A formal review and comment as to whether a proposed flood protection project or other project complies with the minimum NFIP requirements for such projects with respect to delineation of special flood hazard areas. A CLOMR does not revise the effective Flood Insurance Rate Map or Flood Insurance Study; upon submission and approval of certified as -built documentation, a Letter of Map Revision may be issued by FEMA to revise the effective FIRM. 153 of 224 Light-duty truck. As defined in 40 C.F.R. 86.082-2, any motor vehicle rated at 8,500 pounds Gross Vehicular Weight Rating or less which has a vehicular curb weight of 6,000 pounds or less and which has a basic vehicle frontal area of 45 square feet or less, which is: (1) Designed primarily for purposes of transportation of property or is a derivation of such a vehicle, or (2) Designed primarily for transportation of persons and has a capacity of more than 12 persons; or (3) Available with special features enabling off-street or off-highway operation and use. Lowest floor. The lowest floor of the lowest enclosed area of a building or structure, including basement, but excluding any unfinished or flood -resistant enclosure, other than a basement, usable solely for vehicle parking, building access or limited storage provided that such enclosure is not built so as to render the structure in violation of the non -elevation requirements of the Florida Building Code or ASCE 24. [Also defined in FBC, B, Section 1612.2.] Manufactured home. A structure, transportable in one or more sections, which is eight feet or more in width and greater than 400 square feet, and which is built on a permanent, integral chassis and is designed for use with or without a permanent foundation when attached to the required utilities. The term "manufactured home" does not include a "recreational vehicle" or "park trailer." [Also defined in 15C-1.0101, F.A.C.] Manufactured home park or subdivision. A parcel (or contiguous parcels) of land divided into two or more manufactured home lots for rent or sale. Market value. The price at which a property will change hands between a willing buyer and a willing seller, neither party being under compulsion to buy or sell and both having reasonable knowledge of relevant facts. As used in this chapter, the term refers to the market value of buildings and structures, excluding the land and other improvements on the parcel. Market value may be established by a qualified independent appraiser, actual cash value (replacement cost depreciated for age and quality of construction), or tax assessment value adjusted to approximate market value by a factor provided by the property appraiser. New construction. For the purposes of administration of this chapter and the flood resistant construction requirements of the Florida Building Code, structures for which the "start of construction" commenced on or after April 9, 1980 and includes any subsequent improvements to such structures, New manufactured home park or subdivision. A manufactured home park or subdivision for which the construction of facilities for servicing the lots on which the manufactured homes are to be affixed (including at a minimum, the installation of utilities, the construction of streets, and either final site grading or the pouring of concrete pads) is completed on or after April 9, 1980. Park trailer. A transportable unit which has a body width not exceeding 14 feet and which is built on a single chassis and is designed to provide seasonal or temporary living quarters when connected to utilities necessary for operation of installed fixtures and appliances. [Defined in 154 of 224 section 320.01, F.S. 15G 1.0t0l, F nom] Recreational vehicle. A vehicle, including a park trailer, which is: [Defined in F. S. § 320.01(b).] (1) Built on a single chassis; (2) Four hundred square feet or less when measured at the largest horizontal projection; (3) Designed to be self-propelled or permanently towable by a light-duty truck; and (4) Designed primarily not for use as a permanent dwelling but as temporary living quarters for recreational, camping, travel, or seasonal use. Sand dunes. Naturally occurring accumulations of sand in ridges or mounds landward of the beach. Special flood hazard area. An area in the floodplain subject to a I -percent or greater chance of flooding in any given year. Special flood hazard areas are shown on FIRMs as Zone A, A4, Al—A30, AE, A99, AH, V 1 V30, VE or V. [Also defined in FBC, B, Section 1612.2.] Start of construction. The date of issuance of permits for new construction and substantial improvements , provided the actual start of construction, repair, reconstruction, rehabilitation, addition, placement, or other improvement is within 180 days of the date of the issuance. The actual start of construction means either the first placement of permanent construction of a building (including a manufactured home) on a site, such as the pouring of slab or footings, the installation of piles, or the construction of columns. Permanent construction does not include land preparation (such as clearing, grading, or filling), the installation of streets or walkways, excavation for a basement, footings, piers, or foundations, the erection of temporary forms or the installation of accessory buildings such as garages or sheds not occupied as dwelling units or not part of the main buildings. For a substantial improvement, the actual "start of construction" means the first alteration of any wall, ceiling, floor or other structural part of a building, whether or not that alteration affects the external dimensions of the building. [Also defined in FBC, B, Section 1612.2.] Substantial damage. Damage of any origin sustained by a building or structure whereby the cost of restoring the building or structure to its before -damaged condition would equal or exceed 50 percent of the market value of the building or structure before the damage occurred. [Also defined in FBC, B, Section 1612,2.] Substantial improvement. Any repair, reconstruction, rehabilitation, alteration, addition, or other improvement of a building or structure, the cost of which equals or exceeds 50 percent of the market value of the building or structure before the improvement or repair is started. If the structure has incurred "substantial damage," any repairs are considered substantial improvement regardless of the actual repair work performed. The term does not, however, include either: [Also defined in FBC, B, Section 1612.2.] (1) Any project for improvement of a building required to correct existing health, sanitary, or safety code violations identified by the building official and that are the minimum necessary to assure safe living conditions. 155 of 224 (2) Any alteration of a historic structure provided the alteration will not preclude the structure's continued designation as a historic structure. Variance. A grant of relief from the requirements of this chapter, or the flood resistant construction requirements of the Florida Building Code, which pen -nits construction in a manner that would not otherwise be perinitted by this chapter or the Florida Building Code. Watercourse. A river, creek, stream, channel or other topographic feature in, on, I lu_O«gil, or over which water flows at least periodically. ARTICLE III. - FLOOD RESISTANT DEVELOPMENT DIVISION 1. - BUILDINGS AND STRUCTURES Sec. 46-47. - Design and construction of buildings, structures and facilities exempt from the Florida Building Code. Pursuant to section 46-23(1) of this chapter, buildings, structures, and facilities that are exempt from the Florida Building Code, including substantial improvement or repair of substantial damage of such buildings, structures and facilities, shall be designed and constructed in accordance with the flood load and flood resistant construction requirements of ASCE 24. Structures exempt from the Florida Building Code that are not walled and roofed buildings shall comply with the requirements of Article IIi, Division 7 of this chapter. Sec. 46-48. - Buildings and structures seaward of the coastal construction control line. If extending, in whole or in part, seaward of the coastal construction control line and also located, in whole or in part, in a flood hazard area: (1) Buildings and structures shall be designed and constructed to comply with the more restrictive applicable requirements of the Florida Building Code, Building, Section 3109 and Section 1612 or Florida Building Code, Residential, Section R322. (2) Minor structures and non -habitable major structures as defined in § 161.54, F.S., shall be designed and constructed to comply with the intent and applicable provisions of this chapter and ASCE 24. DIVISION 2. - SUBDIVISIONS Sec. 46-49. - Minimum requirements. Subdivision proposals, including proposals for manufactured home parks and subdivisions, shall be reviewed to determine that: (1) Such proposals are consistent with the need to minimize flood damage and will be reasonably safe from flooding; (2) All public utilities and facilities such as sewer, gas, electric, communications, and water systems are located and constructed to minimize or eliminate flood damage; and (3) Adequate drainage is provided to reduce exposure to flood hazards; in Zones AH and AO, adequate drainage paths shall be provided to guide floodwaters around and away from 156 of 224 proposed structures. Sec. 46-50. - Subdivision plats. Where any portion of proposed subdivisions, including manufactured home parks and subdivisions, lies within a flood hazard area, the following shall be required: (1 } Delineation of flood hazard areas, floodway boundaries and flood zones, and design flood elevations, as appropriate, shall be shown on preliminary plats and fiRal plats; (2) Where the subdivision has more than 50 lots or is larger than five acres and base flood elevations are not included on the FIRM, the base flood elevations determined in accordance with section 46-30(1) erQ-) of this chapter; and (3) Compliance with the site improvement and utilities requirements of Article III, Division 3 of this chapter. DIVISION 3. - SITE IMPROVEMENTS, UTILITIES AND LIMITATIONS Sec. 46-51. - Minimum requirements. All proposed new development shall be reviewed to determine that: (1) Such proposals are consistent with the need to minimize flood damage and will be reasonably safe from flooding; (2) All public utilities and facilities such as sewer, gas, electric, communications, and water systems are located and constructed to minimize or eliminate flood damage; and (3) Adequate drainage is provided to reduce exposure to flood hazards; in Zones AH and AO, adequate drainage paths shall be provided to guide floodwaters around and away from proposed structures. Sec. 46-52. - Sanitary sewage facilities. All new and replacement sanitary sewage facilities, private sewage treatment plants (including all pumping stations and collector systems), and on-site waste disposal systems shall be designed in accordance with the standards for onsite sewage treatment and disposal systems in Chapter 64E-6, F.A.C. and ASCE 24 Chapter 7 to minimize or eliminate infiltration of floodwaters into the facilities and discharge from the facilities into flood waters, and impainnent of the facilities and systems. Sec. 46-53. - Water supply facilities All new and replacement water supply facilities shall be designed in accordance with the water well construction standards in Chapter 62-532.500, F.A.C. and ASCE 24 Chapter 7 to minimize or eliminate infiltration of floodwaters into the systems. Sec. 46-54. - Limitations on sites in regulatory floodways. No development, including but not limited to site improvements, and land disturbing activity involving fill or regrading, shall be authorized in the regulatory floodway unless the floodway encroachment analysis required in section 46-31(1) of this chapter demonstrates that the 157 of 224 proposed development or land disturbing activity will not result in any increase in the base flood elevation. Sec. 46-55. - Limitations on placement of fill. Subject to the limitations of this chapter, fill shall be designed to be stable under conditions of flooding including rapid rise and rapid drawdown of floodwaters, prolonged inundation, and protection against flood -related erosion and scour. In addition to these requirements, if intended to support buildings and structures (Zone A only), fill shall comply with the requirements of the Florida Building Code. Sec. 46-56. - Limitations on sites in coastal high hazard areas (Zone V). In coastal high hazard areas, alteration of sand dunes and mangrove stands shall be permitted only if such alteration is approved by the Florida Department of Environmental Protection and only if the engineering analysis required by section 46-31(4) of this chapter demonstrates that the proposed alteration will not increase the potential for flood damage. Construction or restoration of dunes under or around elevated buildings and structures shall comply with section 46-76(3) of this chapter. DIVISION 4. - MANUFACTURED HOMES Sec. 46-57. - General. All manufactured homes installed in flood hazard areas shall be installed by an installer that is licensed pursuant to F.S. § 320.8249 and shall comply with the requirements of Chapter 15C-1, F.A.C. and the requirements of this chapter. If located_ seaward of the coastal construction control line, all manufactured homes shall comply with the more restrictive of the applicable re uirements. Sec. 46-58. - Foundations. All new manufactured homes and replacement manufactured homes installed in flood hazard areas shall be installed on permanent, reinforced foundations that: (1) In flood hazards areas (Zone A) other than coastal high hazard areas, are designed in accordance with the foundation requirements of the Florida Building Code, Residential, Section R322.2 and this chapter. (2) In coastal high hazard areas (Zone V), are designed in accordance with the foundation requirements of the Florida Building Code, Residential, Section R322.3 and this chapter. If subject to section 46-60(2), foundations are permitted to be reinforced piers or other foundation elements of at least equivalent strength. Sec. 46-59. - Anchoring. 158 of 224 All new manufactured homes and replacement manufactured homes shall be installed using methods and practices which minimize flood damage and shall be securely anchored to an adequately anchored foundation system to resist flotation, collapse or lateral movement. Methods of anchoring include, but are not limited to, use of over -the -top or frame ties to ground anchors. This anchoring requirement is in addition to applicable state and local anchoring requirements for wind resistance. Sec. 46-60. - Elevation. Manufactured homes that are placed, replaced, or substantially improved shall comply with section 46-60(1) or section 46-60(2) of this chapter, as applicable. (1) General elevation requirement. Unless subject to the requirements of section 46-60(2) of this chapter, all manufactured homes that are placed, replaced, or substantially improved on sites located: (a) outside of a manufactured home park or subdivision; (b) in a new manufactured home park or subdivision; (c) in an expansion to an existing manufactured home park or subdivision; or (d) in an existing manufactured home park or subdivision upon which a manufactured home has incurred "substantial damage" as the result of a flood, shall be elevated such that the bottom of the frame is at or above the elevation required, as applicable to the flood hazard area, in the Florida Building Code, Residential, Section R322.2 (Zone A) or Section R322.3 (Zone V). (2) Elevation requirement for certain existing manufactured home parks and subdivisions. Manufactured homes that are not subject to section 46-60(1) of this chapter, including manufactured homes that are placed, replaced, or substantially improved on sites located in an existing manufactured home park or subdivision, unless on a site where substantial damage as result of flooding has occurred, shall be elevated such that either the: a. Bottom of the frame of the manufactured home is at or above the elevation required, as applicable to the flood hazard area, in the Florida Building Code, Residential, Section R322.2 (Zone A) or Section R322.3 (Zone V); or b. Bottom of the frame is supported by reinforced piers or other foundation elements of at least equivalent strength that are not less than 36 inches in height above grade. Sec. 46-61. - Enclosures. €t } Enclosed areas below elevated manufactured homes shall comply with the requirements of the Florida Building Code, Residential, Section R322 for such enclosed areas, as applicable to the flood hazard area. Sec. 46-62. - Utility equipment. Utility equipment that serves manufactured homes, including electric, heating, ventilation, plumbing, and air conditioning equipment and other service facilities, shall comply with the requirements of the Florida Building Code, Residential, Section R322.2 or R322.3, as applicable to the flood hazard area. DIVISION 5. - RECREATIONAL VEHICLES AND PARK TRAILERS Sec. 46-63. - Temporary placement. 159 of 224 Recreational vehicles and park trailers placed temporarily in flood hazard areas shall: (1) Be on the site for fewer than 180 consecutive days; or (2) Be fully licensed and ready for highway use, which means the recreational vehicle or park model is on wheels or jacking system, is attached to the site only by quick -disconnect type utilities and security devices, and has no permanent attachments such as additions, rooms, stairs, decks and porches. Sec. 46-64. - Permanent placement. Recreational vehicles and park trailers that do not meet the limitations in section 46-63 of this chapter for temporary placement shall meet the requirements of Article 111, Division 4 of this chapter for manufactured homes. DIVISION 6. -TANKS Sec. 46-65. - Underground tanks. Underground tanks in flood hazard areas shall be anchored to prevent flotation, collapse or lateral movement resulting from hydrodynamic and hydrostatic loads during conditions of the design flood, including the effects of buoyancy assuming the tank is empty. Sec. 46-66. - Above -ground tanks, not elevated. Above -ground tanks that do not meet the elevation requirements of section 46-67 of this chapter shall: (1) Be permitted in flood hazard areas (Zone A) other than coastal high hazard areas, provided the tanks are anchored or otherwise designed and constructed to prevent flotation, collapse or lateral movement resulting from hydrodynamic and hydrostatic loads during conditions of the design flood, including the effects of buoyancy assuming the tank is empty and the effects of flood -borne debris. (2) Not be permitted in coastal high hazard areas (Zone V). Sec. 46-67. - Above -ground tanks, elevated. Above -ground tanks in flood hazard areas shall be attae '^a to a ' elevated to or above the design flood elevation and attached to on a supporting structure that is designed to prevent flotation, collapse or lateral movement during conditions of the design flood. Tank -supporting structures shall meet the foundation requirements of the applicable flood hazard area. Sec. 46-68. - Tank inlets and vents. Tank inlets, fill openings, outlets and vents shall be: (1) At or above the design flood elevation or fitted with covers designed to prevent the inflow of floodwater or outflow of the contents of the tanks during conditions of the design flood; and (2) Anchored to prevent lateral movement resulting from hydrodynamic and hydrostatic loads, including the effects of buoyancy, during conditions of the design flood. 160 of 224 DIVISION 7. - OTHER DEVELOPMENT Sec. 46-69. - General requirements for other development. All development, including man-made changes to improved or unimproved real estate for which specific provisions are not specified in this chapter or the Florida Building Code, shall: (1) Be located and constructed to minimize flood damage,- (2) amage;(2) Meet the limitations of section 46-54 of this chapter if located in a regulated floodways (3) Be anchored to prevent flotation, collapse or lateral movement resulting from hydrostatic loads, including the effects of buoyancy, during conditions of the design flood; (4) Be constructed of flood damage -resistant materials; and (5) Have mechanical, plumbing, and electrical systems above the design flood elevation or meet the requirements of ASCE 24, except that minimum electric service required to address life safety and electric code requirements is permitted below the design flood elevation provided it conforms to the provisions of the electrical part of building code for wet locations. Sec. 46-70. - Fences in regulated floodways. Fences in regulated floodways that have the potential to block the passage of floodwaters, such as stockade fences and wire mesh fences, shall meet the limitations of section 46-54 of this chapter. Sec. 46-71. - Retaining walls, sidewalks and driveways in regulated floodways. Retaining walls and sidewalks and driveways that involve the placernent of fill in regulated floodways shall meet the limitations of section 46-54 of this chapter. Sec. 46-72. - Roads and watercourse crossings in regulated floodways. Roads and watercourse crossings, including roads, bridges, culverts, low-water crossings and similar means for vehicles or pedestrians to travel from one side of a watercourse to the other side, that encroach into regulated floodways shall meet the limitations of section 46-54 of this chapter. Alteration of a watercourse that is part of a road or watercourse crossing shall meet the requirements of section 46-31(3) of this chapter. Sec. 46-73. - Concrete slabs used as parking pads, enclosure floors, landings, decks, walkways, patios and similar nonstructural uses in coastal high hazard areas (Zone V). In coastal high hazard areas, concrete slabs used as parking pads, enclosure floors, landings, decks, walkways, patios and similar nonstructural uses are pennitted beneath or adjacent to buildings and structures provided the concrete slabs are designed and constructed to be: (1) Structurally independent of the foundation system of the building or structure; (2) Frangible and not reinforced, so as to minimize debris during flooding that is capable of causing significant damage to any structure; and (3) Have a maximum slab thickness of not more than four inches. 161 of 224 Sec. 46-74. - Decks and patios in coastal high hazard areas (Zone V). In addition to the requirements of the Florida Building Code, in coastal high hazard areas decks and patios shall be located, designed, and constructed in compliance with the following: (1) A deck that is structurally attached to a building or structure shall have the bottom of the lowest horizontal structural member at or above the design flood elevation and any supporting members that extend below the design flood elevation shall comply with the foundation requirements that apply to the building or structure, which shall be designed to accommodate any increased loads resulting from the attached deck. (2) A deck or patio that is located below the design flood elevation shall be structurally independent from buildings or structures and their foundation systems, and shall be designed and constructed either to remain intact and in place during design flood conditions or to break apart into small pieces to minimize debris during flooding that is capable of causing structural damage to the building or structure or to adjacent buildings and structures. (3) A deck or patio that has a vertical thickness of more than 12 inches or that is constructed with more than the minimum amount of fill necessary for site drainage shall not be approved unless an analysis prepared by a qualified registered design professional demonstrates no harmful diversion of floodwaters or wave runup and wave reflection that would increase damage to the building or structure or to adjacent buildings and structures. (4) A deck or patio that has a vertical thickness of 12 inches or less and that is at natural grade or on nonstructural fill material that is similar to and compatible with local soils and is the minimum amount necessary for site drainage may be approved without requiring analysis of the impact on diversion of floodwaters or wave runup and wave reflection. Sec. 46-75. - Other development in coastal high hazard areas (Zone V). In coastal high hazard areas, development activities other than buildings and structures shall be pennitted only if also authorized by the appropriate federal state or local authority; if located outside the footprint of, and not structurally attached to, buildings and structures; and if analyses prepared by qualified registered design professionals demonstrate no harmful diversion of floodwaters or wave runup and wave reflection that would increase damage to adjacent buildings and structures. Such other development activities include but are not limited to: (1) Bulkheads, seawalls, retaining walls, revetments, and similar erosion control structures; (2) Solid fences and privacy walls, and fences prone to trapping debris, unless designed and constructed to fail under flood conditions less than the design flood or otherwise function to avoid obstruction of floodwaters; and (3) On-site sewage treatment and disposal systems defined in 64E-6.002, F.A.C., as filled systems or mound systems. Sec. 46-76. - Nonstructural fill in coastal high hazard areas (Zone V). In coastal high hazard areas: (1) Minor grading and the placement of minor quantities of nonstructural fill shall be permitted for landscaping and for drainage purposes under and around buildings. (2) Nonstructural fill with finished slopes that are steeper than one unit vertical to five units horizontal shall be permitted only if an analysis prepared by a qualified registered design professional demonstrates no harmful diversion of floodwaters or wave runup and wave reflection that would increase damage to adjacent buildings and structures. (3) Where authorized by the Florida Department of Environmental Protection or applicable local approval, sand dune construction and restoration of sand dunes under or around elevated buildings are permitted without additional engineering analysis or certification of the diversion of floodwater or wave runup and wave reflection if the scale and location of the dune work is 162 of 224 consistent with local beach -dune morphology and the vertical clearance is maintained between the top of the sand dune and the lowest horizontal structural member of the building. SECTION 3. APPLICABILITY. For the purposes of jurisdictional applicability, this ordinance shall apply in the City of Sebastian. This ordinance shall apply to all applications for development, including building permit applications and subdivision proposals, submitted on or after the effective date of this ordinance. SECTION 4. INCLUSION INTO THE CODE OF ORDINANCES. It is the intent of the Sebastian City Council that the provisions of this ordinance shall become and be made a part of the City of Sebastian's Code of Ordinances, and that the sections of this ordinance may be renumbered or relettered and the word "ordinance" may be changed to "section," "article," "regulation," or such other appropriate word or phrase in order to accomplish such intentions. SECTION 5. SEVERABILITY. In the event a court of competent jurisdiction shall determine that any part of this Ordinance is invalid, the remainder of the Ordinance shall not be affected and it shall be presumed that the City Council of the City of Sebastian did not intend to enact such invalid provision. It shall further be assumed that the City Council would have enacted the remainder of this Ordinance without said invalid provision, thereby causing said remainder to remain in full force and effect. SECTION 6. CONFLICT. All ordinances or parts of ordinances in conflict herewith are hereby repealed. SECTION 7. SCRIVENER'S ERRORS. Sections of this ordinance may be renumbered or re -lettered and corrections of typographical errors which do not affect the intent may be authorized by the City Manager, or the City Manager's designee, without need of public hearing, by filing a corrected or re -codified copy of same with the City Clerk. SECTION 8. EFFECTIVE DATE. This Ordinance shall take effect upon its adoption by the City Council. The foregoing Ordinance was moved for adoption by Councilmember . The motion was seconded by Councilmember and, upon being put to a vote, the vote was as follows: Mayor Ed Dodd Vice -mayor Charles Mauti Councilmember Jim Hill Councilmember Damien Gilliams Councilmember Pamela Parris The Mayor thereupon declared this Ordinance duly passed and adopted on this day of January 2020. CITY OF SEBASTIAN, FLORIDA Ed Dodd, Mayor 163 of 224 ATTEST: Jeanette Williams, City Clerk Approved as to form and legality for Reliance by the City of Sebastian only: James Stokes, City Attorney 164 of 224 �+garita Hernandez From: Cole, Conn <Conn.Cole@em.myflorida.com> Sent: Monday, December 2, 2019 11:19 AM To: Paul Carlisle; Wayne Eseltine Subject: Sebastian (Indian River) Flood Ordinance - Corrected Attachments: Sebastian Corrector Ord.docx Follow Up Flag: Follow up Flag Status: flagged CAUTION: This email originated from outside your organization. Exercise caution when opening attachments or clicking links, especially from unknown senders. Dear Mr. Carlisle and Mr. Eseltine , The City of Sebastian was among the first communities to adopt local floodplain management regulations using the State model ordinance that is written to coordinate with the Florida Building Code. FEMA's final approval of the ordinance included several relatively minor changes from the version we used to prepare your regulations. This office made a commitment to FEMA to review ordinances adopted early in this process and prepare "corrector ordinances" to capture the final changes. Attached is a draft ordinance based on your regulations and showing the changes in underline and strike -through format. Please review the draft and let me know when we can go over it together to answer your questions. I'll then prepare a final version for you to take forward for adoption. Please let me know if you have questions and thank you for helping us address this important task, Conn H. Cole, CFM Floodplain Management Specialist State Floodplain Management Office — 350C Florida Division of Emergency Management (850) 815-4507 Desk (850) 509-1813 Cell Coiui.Cole(iuem.mvflor•ida.com 165 of 224 cnv Lf SEBASTIAN HOME OF PELICAN ISLAND CITY COUNCIL AGENDA TRANSMITTAL Council Meetina Date: February 12, 2020 Agenda Item Title: City Attorney Agreement Recommendation: Staff recommends that the Council approve the Agreement between the City and Manny Anon Jr. for the City Attorney Charter Officer position. Background: The City Council at the January 22, 2020 meeting approved a committee to negotiate a contract with Manny Anon Jr, for the City Attorney position. The Committee has successfully reached an Agreement with Mr. Anon and has submitted the Agreement for Council approval. IF AGENDA ITEM REQUIRES EXPENDITURE OF FUNDS: Appropriation Required: Increase Current Budget of $99,000 by an additional $40,000 Source of Funds: General Fund Reserves Administrative Services Department Review: Attachments: 1. Agreement City Manager Authorization: - r Date: 166 of 224 ill) 0+ 5EBA-S HOME OF PELICAN ISIAND AGREEMENT FOR CITY ATTORNEY THIS AGREEMENT made and entered into this day of by and between the City of Sebastian, a Florida Municipal Corporation (hereinafter referred to as "City") and Manny Anon, Jr. (hereinafter referred to as "City Attorney") pursuant to the following terms and conditions. WHEREAS, the City desires to retain City Attorney as a full-time contractual City Attorney for the City of Sebastian; and WHEREAS, the City expects City Attorney to perform all the responsibilities and obligations required as City Attorney, as illustrated in Section III of this Agreement and pursuant to the City Charter, Codes and Ordinances, and applicable State and Federal regulations; and, WHEREAS, Anon is willing to enter into a relationship with the City of Sebastian to perform the services as provided; NOW THEREFORE in consideration of the mutual covenants contained herein, the City and City Attorney, hereby agree as follows: I. APPOINTMENT The City hereby appoints Manny Anon, Jr. as the City Attorney of the City of Sebastian effective II. TERM OF AGREEMENT This Agreement shall become effective upon execution by both parties. The term of this Agreement shall continue in effect until terminated pursuant to the terms of Section VII. However, within the first six (6) months of City Attorney's employment with the City of Sebastian, the City shall be required to present any notice to terminate without cause by the majority vote of the Citv Council with thirty (30) days written notice. Thereafter, the City may terminate without cause by the maiority vote of the Citv Council. In the event City Attorney wishes to terminate the agreement, sixty (60) days written notice is required. Written notice from the City will be presented by the City Manager as an authorized agent of the City only after such action has been directed by the City Council. City Attorney Agreement 2020 1 167 of 224 11.01 After an affirmative vote of the majority of the City Council to approve this Agreement then when the City Council meeting on February 12, 2020, is officially adjourned, all powers, duties, and responsibilities as prescribed and permitted by the laws of the State of Florida, the City Charter, Ordinances and other Codes of the City of Sebastian shall be conferred upon Mr. Anon as City Attorney." III. DUTIES OF THE CITY ATTORNEY It is understood that Manny Anon, Jr. has been retained to act as City Attorney to provide general legal representation to the City as prescribed by the City Charter. These duties include providing legal services to the City Council and functioning as legal counsel to the City Clerk and City Manager at their request. This mission will include, but not limited to, representation in the areas of general local government law, employment law, land use law, real property law, environmental law, election law and constitutional law. Specific duties include but are not limited to: 1. Attendance at all Regular and Special Meetings of the City Council and attendance at the meetings of the Planning and Zoning Commission. 2. Attendance and representation of the City at quasi-judicial board meetings other than City Council meetings. 3. Attendance and representation of the City at Special Magistrate hearings. Drafting of pleadings, orders, and related documents pertaining to Special Magistrate hearings. 4. Providing legal advice on general matters of the City to members of the City Council and City staff. 5. Conducting regular office hours at City Hall for the purpose of advising the City Clerk, City Manager and City Department Head staff on general legal matters that arise while conducting the day-to-day operations of the City. The City shall provide limited secretarial administrative support for this function. That includes scheduling meetings, review of draft memorandums, and minor paralegal work. 6. Anon shall be responsible for the drafting and execution of resolutions, ordinances, agreements, contracts and other legal documents as required by the City Council, the City Clerk and City Manager. 7. Serving as a member of the City Investment Committee, which has oversight for the investment of City Funds. 8. Administrating the City's general liability claims. 9. Other matters that are deemed mutually agreeable between the parties City Attorney Agreement 2020 Z 168 of 224 IV. that are not provided above. COMPENSATION AND BENEFITS The City will compensate City Attorney at a rate of One hundred twenty thousand dollars ($120,000.00) per year paid in twenty-six (26) equal payments. The City shall increase the City Attorney's salary at the same interval and by the same percentage as other managerial employees but may increase the salary and benefits by a greater amount in the discretion of a majority of the City Council. 2. The City hereby agrees to provide and fully pay for City Attorney and his dependents, health insurance, vision care insurance, and dental insurance offered and available to any other full time exempt employees of the City; such benefits being subject to change if said benefits are changed for other City employees. 3. The City shall provide and fully pay for a term life insurance policy for the City Attorney in an amount equal to one year's salary, payable to a beneficiary of the City Attorney's choosing. 4. The City agrees to contribute to its 401 a retirement plan an amount equal to nine (9%) of the City Attorney's base salary, or a greater amount should the City ever increase the retirement benefit for managerial employees of the City, and that such contribution shall be made pursuant to the terms and conditions of the 401 a retirement plan currently in effect, including any vesting schedule and any matching contribution requirements. 5. The City Attorney, shall accrue vacation benefits at the same rate as provided to managerial employees of the City. Upon voluntary separation from employment with the City, the City Attorney shall be entitled to compensation as non -pensionable salary for vacation time accrued in accordance with City policy applying to managerial employees of the City at the time of such separation. City Attorney shall take, at least, five (5) consecutive days of vacation time off each calendar year. 6. The City Attorney shall accrue sick leave at the same rate provided to managerial employees of the City. Upon voluntary separation from employment with the City, City Attorney shall be entitled to compensation as non -pensionable salary for sick time accrued in accordance with City policy applying to managerial employees at the time of such separation. 7. City Attorney shall be provided disability benefits to the same degree as provided other managerial employees of the City. City Attorney Agreement 2020 3 169 of 224 8. The City shall provide payment of dues, subscriptions and educational seminars which enhance the Attorneys professional development and service as the City Attorney, to the extent provided for in the City's budget. 9. The City shall reimburse the City Attorney for any expenses directly related to the performance of his duties as City Attorney to the extent provided for in the City's budget. 10. City Attorney shall be entitled to the use of a designated city vehicle for official and necessary City business use. This shall not be used for transportation to and from the residence or be taken out of State. . 11. City Attorney shall be entitled to other benefits, including Military Leave of Absence in accordance with City Policy and Chapter 115, Florida Statute, and as from time to time may be afforded other employees of the City of Sebastian, or as granted by the City Council, V. REVIEW AND EVALUATION A performance evaluation will be performed in accordance with Res. R-10-05. VI. FULL-TIME EMPLOYMENT The City Attorney agrees to remain in the exclusive employ of the City and to not become employed by any other employer unless termination is affected as hereinafter provided. The term "employed" shall not be construed to include occasional teaching, writing, or consulting performed City Attorney's time off, provided that the City Council is advised in writing of all such occasions, in advance. VII. TERMINATION 1. City Attorney shall serve at the pleasure of the City Council, and the City Council may terminate this Agreement and the City Attorney's employment with the City at any time, for any lawful reason or for no reason. 2. After six (6) months, should City Attorney be terminated without cause, he shall be entitled twenty weeks (20) weeks base salary excluding all insurance policies and other benefits. There will be no accrual of vacation time, sick leave or holiday pay during this time. The City Attorney will be paid for any accrued sick or vacation time to which he is entitled to pursuant to City Policy effective the day of termination. 3. City Attorney may also be terminate for cause, pursuant to the provisions of Section 3.03 of the City Charter, and other applicable law, in which case City Attorney shall not be paid any severance payment, but shall be City Attorney Agreement 2020 4 170 of 224 entitled to compensation for hours worked through his separation, as well as sick or vacation accruals as provided by City Policy. VIII. INDEMNIFICATION Subject to any limitation imposed by Florida law, the City shall defend, save harmless and indemnify City Attorney against any tort, professional liability claim/demand, or other legal action, whether groundless or otherwise, arising out of an alleged act or omission City Attorney acting within the course and scope of his duties as City Attorney. IX. GOVERNING LAW The Agreement shall be subject to and governed by the laws of the State of Florida and venue for its enforcement shall be in Indian River County, Florida. X. MODIFICATIONS No provision of this Agreement may be changed or modified except by written agreement executed by both parties hereto. XI. ENTIRE AGREEMENT The Agreement constitutes the entire Agreement between the parties and contains all the Agreements described herein between the parties with respect to the subject matter hereof. Said Agreement supersedes any and all other Agreements, either oral or in writing, between the parties hereto with respect to the subject matter of this Agreement, not withstanding Section V herein. XII. NOTICES All notices, consents, requests, instruction, approvals and other communications provided for herein shall be validly given, made or served in writing and delivered personally or sent by registered or certified mail, postage prepaid, return receipt requested, to the hereinafter designated address: To the Employer: City of Sebastian Attn: Mayor 1225 Main Street Sebastian, Florida 32958 With Copy to: City of Sebastian Attn: City Manager 1225 Main Street Sebastian, Florida 32958 To City Attorney: Manny Anon Jr., Esq. City Attorney Agreement 2020 5 171 of 224 XIII. ENFORCEMENT In the event that it should become necessary for either party to retain the services of an attorney to enforce the terms of this Agreement, the prevailing party in any litigation which is brought on this Agreement shall be awarded all of its costs and expenses including but not limited to reasonable attorney's fee. This provision shall apply to such expenses incurred at the trial and all appellate levels, without respect to who is the initiating party and shall apply to an action for declaratory relief if the party instituting it asserts specific contentions concerning the Agreement which are filed upon the Court. IN WITNESS WHEREOF, the City of Sebastian has caused this Agreement to be executed by its Mayor and duly attested by its City Clerk and Manny Anon, Jr., City Attorney has executed this Agreement, as of the day and year first above written. CITY OF SEBASTIAN, A Florida municipal corporation Ed Dodd Mayor ATTEST: Jeanette Williams, MMC City Clerk City Attorney Agreement 2020 Manny Anon, Jr. City Attorney 31 172 of 224 cnya HOME OF PELICAN ISIAND CITY COUNCIL AGENDA TRANSMITTAL Council Meetine Date: 12 February 2020 Agenda Item Title: Vendor contract with Brycer, LLC "The Compliance Engine"; to provide a web based electronic reporting system that third party contractors will use to submit fire inspection and testing reports of Fire and Life Safety Systems to the City's Fire Prevention Office, Recommendation: Authorize the City Manager to execute an agreement with Brycer, LLC to provide a web based electronic reporting system for the inspection and testing of Fire and Life Safety Systems. Procurement in accordance with City Code of Ordinance Sec. 2- 10(c)(3). Background: The Fire Prevention Code and its reference standards, requires Engineered Fiore and Life Safety Systems such as Fire Sprinkler Systems, Fire Alarm Systems and Kitchen Hood Systems be maintained and inspected on a regular basis to ensure they will function properly in the event of an incident. In order to ensure these inspections are being performed as required, the fire protection system reports performed by third party inspection companies for the purpose of inspection, testing and maintenance of Engineered Fire and Life Safety Systems shall be reported to the City of Sebastian Fire Prevention Office through a web based electronic reporting system. If Asenda Item Reauires Expenditure of Funds: There is no cost to the City Administrative Services Department Review: Attachments: 1, Proposed Professional Services Agreement between the City of Sebastian and Brycer, LLC "The Compliance Engine". City Manager uthoriz 'on: i Date: 12 February 2020 2. The Compliance Engine Summary of Services. 3. Brycer, LLC, Florida Partnerships 4. Procurement Officer's written statement for sole source contract in accordance with City Code of Ordinance See. 2010 (c)(3). 173 of 224 BRYCER, LLC 4355 Weaver Parkway Suite 330 Warrenville, IL 60555 February 3', 2020 City of Sebastian 1225 Main St Sebastian, FL 32958 Re: "The Compliance Entine„ Dear City of Sebastian: We look forward to providing you with "The Compliance Engine" (the "Solution"). This proposal letter provides the basic terms by which Brycer, LLC ("Brycer") will provide you, the City of Sebastian ("Client"), with the Solution. The use of the Solution and all matters between Brycer and Client will be subject to the standard "Terms and Conditions" attached to this proposal as Exhibit A. The basic terms are as follows: 1. Term: Brycer will provide Client with the Solution for three years, commencing (the "Initial Term"). Thereafter, the Term shall automatically renew for successive three year periods unless terminated by Brycer or Client in writing at least 90 days prior to the expiration of the then current Term (each, a "Renewal Term" and together with the Initial Term, the "Term"). Following the expiration or termination of the Term (as provided in the Terms and Conditions), Client shall stop using the Solution; provided, however, Brycer shall make available, and Client shall have the right to download, Client's data from the Solution for a period of 60 days after the expiration or termination of the Term. Client shall have the right to terminate this agreement for convenience upon giving 90 days written notice to Brycer. 2. Fees: Client shall not pay any fees for use of the Solution. Brycer will collect all fees due and payable by third party inspectors in connection with activities relating to the Solution. 3. Brvicer Responsibilities: During the Term, Brycer shall be responsible for the following in connection with Client's use of the Solution: 2237531/5/13399.000 Availability. Brycer shall make the Solution available to Client as set forth on Exhibit B. The maintenance schedule and minimum service levels for the Solution are set forth on Exhibit B. Service Level. Brycer shall provide commercially reasonable levels of customer service with respect to the Solution to all third parties who transact business with Client and access the Solution. Backup. Brycer shall backup the database used in connection with the Solution to a separate server located within the same web hosting firm which the Solution is being hosted on a real time basis. Upon request by Client (which can be no more than once a month) or made prior to or within 60 days after the effective date of termination of the Term, Brycer will make available to Client a complete and secure (i.e. encrypted and appropriately authenticated) download file of Client data in XML format including all schema and attachments in their native format. Brycer shall maintain appropriate administrative, 174 of 224 physical and technical safeguards for protection of the security, confidentiality and integrity of Client data. Brycer shall not (a) modify Client data or (b) disclose Client data except as required by law. • Retention of Information. Brycer will maintain all information entered into the database by third party inspectors for at least five years from the time such information is entered into the database. • Notices. Brycer will be responsible for generating and delivering the following notices to third parties in connection with the Solution: (a) reminders of upcoming inspections that are due; (b) notices that an inspection is past due; and (c) notices of completed inspection reports which contain one or more deficiencies. • Call Center Phone calls by Brycer on behalf of the Client to the property for EACH life -safety system overdue for service based on dates automatically tracked within the TCE database. Brycer is not an agent of the Client and all scripts for the overdue calls will be approved by the Client. • Updates and Enhancements. In the event Brycer releases any updates, corrections, or enhancements to the Solution during the Term, Brycer shall promptly provide such updates or corrections to Client free of any charge or fee. 4. Client Resaonsibilities: During the Term, Client shall be responsible for the following in connection with Client's use of the Solution: • Operating System. Client shall be solely responsible for providing a proper operating environment, including computer hardware or other equipment and software, for any portion of the Solution installed on the Client's equipment (the "Client Access Software") and for the installation of network connections to the Internet. In addition to any other Client Access Software requirements, Client must use version Internet Explorer 11.0, Edge, Firefox version 37, Chrome 40 or Safari 7.1 (or more recent versions), in addition to having a .pdf reader installed on machines to view attachments. • Training. Client shall allow Brycer at Client's facilities to train all applicable personnel of Client on the use of the Solution. • Information. Client shall promptly provide Brycer with all appropriate information necessary for Brycer to create the database for the Solution, including without limitation: (a) all commercial building addresses within (,jurisdiction] for Brycer's initial upload; and (b) quarterly updates to in a format acceptable to Brycer in its discretion. • Enforcement. Client shall take all actions necessary to require (e.g. resolution, ordinance, fire policy, code amendment) the use of the Solution by third party inspection companies. • Reports. Client will require all compliant and deficient test results to be submitted. 5. Ownership of Data. Client owns all the data provided by Client and received from third party contractors for Client. Brycer shall maintain appropriate administrative, physical and technical safeguards for protection of the security, confidentiality and integrity of Client's data. 2237531/5/13399.000 175 of 224 Please acknowledge your acceptance of this proposal and our standard Terms and Conditions by counter -signing this proposal below. We look forward to a long-term and mutually beneficial relationship with you. Brycer, LLC By: Its: Acknowledged and Agreed to this day of , 20 [CLIENT] By: Its: 2237531/5/13399.000 176 of 224 Exhibit A Terms and Conditions Any capitalized terms not defined in these Terns and Conditions shall have the meaning assigned to it in that certain Letter Agreement attached hereto by and between Brycer, LLC and Client (the "Agreement). Restrictions on Use. Client shall not copy, distribute, create derivative works of or modify the Solution in any way. Client agrees that: (a) it shall only permit its officers and employees (collectively, the "Authorized Users") to use the Solution for the benefit of Client; (b) it shall use commercially reasonable efforts to prevent the unauthorized use or disclosure of the Solution; (c) it shall not sell, resell, rent or lease the Solution; (d) it shall not use the Solution to store or transmit infringing or otherwise unlawful or tortious material, or to store or transmit material in violation of third party rights; (e) it shall not interfere with or disrupt the integrity or performance of the Solution or third -party data contained therein; (f) it shall not reverse engineer, translate, disassemble, decompile or otherwise attempt to create any source code which is derived from the Solution (g) it shall not permit anyone other than the Authorized Users to view or use the Solution and any screen shots of the Solution and (h) it shall not disclose the features of the Solution to anyone other than the Authorized Users. Client is responsible for all actions taken by the Authorized Users in connection with the Solution. 2. ProDrietary Riehts. All right, title and interest in and to the Solution, the features of the Solution and images of the Solution as well any and all derivative works or modifications thereof(the "Derivative Works"), and any accompanying documentation, manuals or other materials used or supplied under this Agreement or with respect to the Solution or Derivative Works (the "Documentation"), and any reproductions works made thereof, remain with Brycer. Client shall not remove any product identification or notices of such proprietary rights from the Solution. Client acknowledges and agrees that, except for the limited use rights established hereunder, Client has no right, title or interest in the Solution, the Derivative Works or the Documentation. 3. Indeoertdent Contractor. Nothing in the Agreement may be construed or interpreted as constituting either party hereto as the agent, principal, employee or joint venturer of the other. Each of Client and Brycer is an independent contractor. Neither may assume, either directly or indirectly, any liability of or for the other party. Neither party has the authority to bind or obligate the other party and neither party may represent that it has such authority. required to be disclosed by law. In the event that Client requests from Brycer any reports or other information for purposes of complying with federal and state disclosure laws, Brycer shall provide such information within five business day following such request. Confidential Information excludes information: (a) that is or becomes generally available to the public through no fault of the receiving parry; (b) that is rightfully received by the receiving party from a third party without limitation as to its use; or (c) that is independently developed by receiving parry without use of any Confidential Information. At the termination of this Agreement, each party will return the other party all Confidential Information of the other party. Each party also agrees that it shall not duplicate, translate, modify, copy, printout, disassemble, decompile or otherwise tamper with any Confidential Information of the other party or any firmware, circuit board or software provided therewith. 7. Brvcer Warrantv. Brycer represents and warrants to Client that Brycer has all rights necessary in and to any patent, copyright, trademark, service mark or other intellectual property right used in, or associated with, the Solution, and that Brycer is duly authorized to enter into this Agreement and provide the Solution to Client pursuant to this Agreement. 4. Reservation of Riehts. Brycer reserves the right, in its sole discretion and with prior notice to Client, to discontinue, add, adapt, or otherwise modify any design or specification of the Solution and/or Brycer's policies, procedures, and requirements specified or related hereto. All rights not expressly granted to Client are reserved to Brycer, including the right to provide all or any part of the Solution to other parties. 9. 5. Use of Loeos. During the tern of this Agreement, Brycer shall have the right to use Client's logos for the purpose of providing the Solution to Client. 6. Confidential Information. Brycer and Client acknowledge and agree that in providing the Solution, Brycer and Client, as the case may be, may disclose to the other party certain confidential, proprietary trade secret information ("Confidential Information"). Confidential Information may include, but is not limited to, the Solution, computer programs, flowcharts, diagrams, manuals, schematics, development tools, specifications, design documents, marketing information, financial information or business plans. Each party agrees that it will not, without the express prior written consent of the other party, disclose any Confidential Information or any part thereof to any third party. Notwithstanding the foregoing, the parties acknowledge that Client and Brycer shall be permitted to comply with any all federal and state laws concerning disclosure provided that any such required disclosure will not include any ofBrycer's screen shots. The disclosing party shall provide prior written notice of any required disclosure of the nondisclosing party's Confidential Information to the nondisclosing party and shall disclose only the information that is 2237531/5/13399.000 Disclaimer. All information entered into Brycer's database is produced by third party inspectors and their agents. THEREFORE, BRYCER SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR WARRANTY AS TO THE ACCURACY OR COMPLETENESS OF ANY INFORMATION ENTERED INTO BRVCER'S DATABASE BY EITHER CLIENT OR THIRD PARTY INSPECTORS. EXCEPT AS SET FORTH IN SECTION 7, BRYCER MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE SOLUTION OR ANY OTHER INFORMATION AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ARE HEREBY DISCLAIMED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. BRYCER'S SOLE LIABILITY FOR BREACH OF THE REPRESENTATION AND WARRANTY SET FORTH IN SECTION 7, AND CLIENT'S SOLE REMEDY, SHALT. BE THAT BRYCER SHALL INDEMNIFY AND HOLD RECIPIENT HARMLESS FROM AND AGAINST ANY LOSS, SUIT, DAMAGE, CLAIM OR DEFENSE ARISING OUT OF BREACH OF THE REPRESENTATION AND WARRANTY. LIMITATION ON DAMAGES. BRYCER SHALL ONLY BE LIABLE TO CLIENT FOR DIRECT DAMAGES PURSUANT TO THE AGREEMENT. EXCEPT AS OTHERWISE PROVIDED IN SECTION 7. IN NO EVENT SHALL BRYCER BE LIABLE FOR OR OBLIGATED IN ANY MANNER FOR SPECIAL, CONSEQUENTIAL, OR INDIRECT DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF USE, LOSS OF PROFITS OR SYSTEM DOWNTIME. CLIENT ACKNOWLEDGES AND AGREES THAT IN NO CASE SHALL BRYCER'S LIABILITY FOR ANY LOSS OF DATA OR DATA INTEGRITY EXCEED THE REPLACEMENT COST OF THE MEDIA ON WHICH THE DATA WAS STORED. 10. Risks Inherent to Internet. Client acknowledges that: (a) the Internet is a worldwide network of computers, (b) communication on the Internet may not be secure, (c) the Internet is beyond the control of Brycer, and (d) Brycer does not own, operate or manage the Internet. Client also acknowledges that there are inherent risks associated with using the Solution, including but not limited to the risk of breach of security, the risk of exposure to computer viruses and the risk of interception, distortion, or loss of communications. Client assumes these risks knowingly and voluntarily releases Brycer from all liability from all 177 of 224 such risks. Not in limitation of the foregoing, Client hereby assumes the risk, and Brycer shall have no responsibility or liability of any kind hereunder, for: (t) errors in the Solution resulting from misuse, negligence, revision, modification, or improper use of all or any part of the Solution by any entity other than Brycer or its authorized representatives; (2) any version of the Solution other than the then - current unmodified version provided to Client; (3) Client's failure to timely or correctly install any updates to the Client Access Software; (4) problems caused by connecting or failure to connect to the Internet; (5) failure to provide and maintain the technical and connectivity configurations for the use and operation of the Solution that meet Brycer's recommended requirements; (6) nonconformities resulting from or problems to or caused by non-Brycer products or services; or (7) data or data input, output, accuracy, and suitability, which shall be deemed under Client's exclusive control. 11. Indemnity. Brycer (the "Indemnifying Party") will defend and indemnify Client against any damages, losses, liabilities, causes of action, costs or expenses arising ftom Brycer's breach of this Agreement, gross negligence or intentional misconduct. Client will defend and indemnify Brycer against any damages, losses, liabilities, costs or expenses (including reasonable attorneys' fees) arising from Client's breach of this Agreement, gross negligence or intentional misconduct Client acknowledges that Brycer does not create any of the data and information included in the Solution and is not responsible for and does not assess or make any suggestions or recommendations with respect to any such data or information. Nothing contained in this Agreement, including attachments, shall be deemed to be a waiver of Client's governmental or sovereign immunities set forth in Section 768,28, et seq., Florida Statutes, or otherwise set forth in law. 12. Breach. Brycer shall have the right to terminate or suspend this Agreement, and all of Client's rights hereunder, immediately upon delivering written notice to Client detailing Client's breach of any provision of this Agreement. If Client cures such breach within 5 days of receiving written notice thereof, Brycer shall restore the Solution and Client shall pay any fees or costs incurred by Brycer in connection with the restoration of the Solution. 13. Illegal Payments. Client acknowledges and agrees that it has not received or been offered any illegal or improper bribe, kickback, payment, gift or anything of value from any employee or agent of Brycer in connection with the Agreement. 14. Beneficiaries. There are no third party beneficiaries to the Agreement. 15. Force Maieure. Neither party shall be responsible for any failure to perform due to unforeseen, non-commercial circumstances beyond its reasonable control, including but not limited to acts of God, war, riot, embargoes, acts of civil or military authorities, fire, floods, earthquakes, blackouts, accidents, or strikes. In the event of any such delay, any applicable period of time for action by said party may be deferred for a period of time equal to the time of such delay, except that a party's failure to make any payment when due hereunder shall not be so excused. 2237531/5113399.000 16. Notices. All notices required in the Agreement shall be effective: (a) if given personally, upon receipt; (b) if given by facsimile or electronic mail, when such notice is transmitted and confirmation of receipt obtained; (c) if mailed by certified mail, postage prepaid, to the last known address of each party, three business days after mailing; or (d) if delivered to a nationally recognized overnight courier service, one business day after delivery. 17. JURISDICTION AND VENUE. THE AGREEMENT SHALL BE GOVERNED BY, CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, AND ENFORCEABLE UNDER, THE LAWS OF THE STATE IN WHICH CLIENT EXISTS APPLICABLE TO CONTRACTS MADE IN SUCH STATE AND THAT ARE TO BE WHOLLY PERFORMED IN SUCH STATE WITHOUT REFERENCE TO THE CHOICE -OF -LAW PRINCIPLES OF SUCH STATE. THE PARTIES IRREVOCABLY AGREE THAT ALL ACTIONS OR PROCEEDINGS IN ANY WAY, MANNER OR RESPECT ARISING OUT OF OR FROM OR RELATED TO THE AGREEMENT SHALL BE LITIGATED ONLY IN COURTS LOCATED WITHIN THE STATE AND COUNTY IN WHICH CLIENT EXISTS. THE PARTIES HEREBY CONSENT AND SUBMIT TO THE EXCLUSIVE JURISDICTION OF ANY LOCAL, STATE OR FEDERAL COURT LOCATED WITHIN SAID STATE AND COUNTY. THE PARTIES WAIVE ANY RIGHT TO TRIAL BY JURY ON ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THE AGREEMENT, AND AGREE THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY. 18. Attomevs' Fees. The prevailing party in any proceeding in connection with the Agreement shall be entitled to recover from the non -prevailing party all costs and expenses, including without limitation, reasonable attorneys' and paralegals' fees and costs incurred by such party in connection with any such proceeding. 19. Entire Aereement. The Agreement sets out the entire agreement between the parties relative to the subject matter hereof and supersedes all prior or contemporaneous agreements or representations, oral or written. 20. Amendment. The Agreement may not be altered or modified, except by written amendment which expressly refers to the Agreement and which is duly executed by authorized representatives of both parties. The waiver or failure by either party to exercise or enforce any right provided for in the Agreement shall not be deemed a waiver of any further right under the Agreement. Any provision of the Agreement held to be invalid under applicable law shall not render the Agreement invalid as a whole, and in such an event, such provision shall be interpreted so as to best accomplish the intent of the parties within the limits ofapplicable law. The Agreement may be executed by facsimile and in counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument. 21. Expiration. The rights and obligations contained in these Terns and Conditions shall survive any expiration or termination of the Agreement. 178 of 224 Exhibit B Maintenance Schedule and Minimum Service Levels 1. Uptime and Maintenance. The Solution shall be available 24 hours per day during the term of this Agreement. The Solution shall be fully functional, timely and accessible by Client at least 99.5% of the time or better and Brycer shall use reasonable efforts to provide Client with advance notice of any unscheduled downtime. Response Time. Brycer shall respond to telephone calls from Client within two hours of the call and/or message and all emails from Client within two hours of the receipt of the email. 3. Customer Support Customer support hours are 24/7/365. The toll free number is 1-855-279-2371 Brycer will assign client a dedicated customer representative with direct access to their email and work number. 2237531/5/13399.000 179 of 224 0 THE COMPUANCE ENGINE V CER The Compliance Engine is a simple, internet based tool for Fire Prevention Bureaus to track and drive code compliance, reduce false alarm activity, and provide a safer community. It provides a secure cloud environment in which third party contractors that inspect, test, and maintain fire protections systems, can submit their reports via Brycer's web portal direct to the Fire Department, facilitating a more efficient review, tracking, and follow-up process with occupants to correct deficiencies and maintain systems. Brycer also provides a proactive service, in addition to the web -based technology, that includes hard and soft copy notifications to help increase testing and maintenance in a given jurisdiction. The end result is a comprehensive and accurate aggregation of data around which buildings have what types of systems, when they were last tested, and if there are any open deficiencies that could jeopardize their successful deployment in the event of an incident. With The Compliance Engine, your Department will be better equipped to do more with less in their mission to drive 100% code compliance with life safety laws. Current Landscape: • 40% of life safety systems go uninspected or maintained every year • 32.5% of false alarms are clue lack of maintenance and testing • 29% of fire code official's time is spent administering 3rd Party ITM reports • 95% of AHJs do not have the resources to enforce their adopted fire code • Current Process is manual, paper based, reactionary, inefficient and expensive The Compliance Engine Benefits: • Drives 100% Compliance with fire & life safety code • Electronically collects, organizes and tracks fire and life safety test results • Maximizes limited resources, saves time and streamlines communication • Built to ensure a safer environment for firefighters, citizens and guests • Saves AHJs money while strengthening life safety Revenue Model: • Free for Fire Department • Zero charge to the building owners • Fee paid by 3`d party contractors on per system, per premises, per annum basis • Delivers Compliance resulting in new business and maintenance revenue for 3`d party contractors • Endorsed by IKECA, Arizona Fire Alarm Assoc. and Western Fire Chiefs Assoc Learn more at www.tlhecomplianceengirne.corn or 630-413-9511 Collect. Connect. Comply. 180 of 224 THE CER COMPLIANCE ENGINE , -, V. Bk (CFR FLORIDA PARTNERSHIPS CITY OF OKEECHOBEE FIRE DEPARTMENT--- Herb Smith MARTIN COUNTY FIRE RESCUE --- Doug Killane OKEECHOBEE COUNTY FIRE RESCUE --- Ryan Hathaway ST. LUCIE COUNTY FIRE DISTRICT --- Debbie Knupp STUART FIRE RESCUE --- Frank La5a8a CITY OF KISSIMMEE FIRE DEPARTMENT --- (-hrk Ales .ndri ZEPHYRHILLS BUILDING DEPT --- Gene Brown INDIAN RIVER COUNTY FIRE RESCUE --- Dave Johnson BOYNTON BEACH FIRE RESCUE --- Kathy Cline NORTH LAUDERDALE FIRE RESCUE --- David Sweet Learn more at www.thecomplianceenp-ine.com or 855-279-2371 Collect. Connect. Comply. THE . COMPUANCE ENGINE BR'CER 181 of 224 CR Of �EMA BA � ;m;; HOME OF PELICAN ISLAND EXTRAORDINARY PROCUREMENT CERTIFICATE An Extraordinary Procurement Certificate is required whenever there is intent to have an exception made for an Emergency, Single Source or Sole Source purchase, below $15,000. Should the intended purchase not conform to at least one of the definitions below, refer to Threshold Requirements to determine the process for the purchase. An Emergency purchase is defined as an unexpected turn of events that causes immediate danger to public health, safety and public property; or an interruption of essential governmental services or City operations. A Single Source purchase is defined as the purchase of required good/service from one source because of City standardization, warranty or other distinctive factors (provide details). A Sole Source purchase is defined as having only one practical source for the purchase of the required good/service (attach Sole Source Letter from vendor or manufacturer). Fully completed Certificates are subject to review and approval by the Procurement/Contracts Manager and City Manager DATE TO: DEPARTMENT HEAD: DEPARTMENT: TYPE OF PURCHASE PROPOSED VENDOR: ITEMS OR SERVICES REQUIRED: 2/3/2020 Ann -Marie Fraser, CPPB, MBA Wayne Eseltine Building Emergency Brycer, LLC Compliance Engine Single Source a Sole Source JUSTIFICATION FOR EXCEPTION TO NORMAL PROCUREMENT PROCEDURE: Sole Source letter provided by Brycer, LLC ------------------------CERTIFICATION OFAVAILABILITY/NECESSITY I hereby certify that I have thoroughly reviewed the facts and circumstances of this requested purchase and that (1) the Department has an urgent needlemergencyfor the purchase of the goodslservices and the emergency is such that a delay through the use of normal competitive procurement methods to acquire such good Iservice: would not be in the public's best interest and would be detrimental to the City; (2) due to the City's standardization, warranty or other distinctive factors only one source is available or (3) the supplier of the goodslservices requested is the sole source supplier. Submitted:�� Date: zh `- Oz® Depart t Head Signature Approved:, Date: A NrarajePrCPPB, MBA P?bre r gentlCont /s Manager l Approved: �/ ( Date: ,Poul E. Carlisle, City Manager 1 X32 Ot 224 BRYC E R 4355 Weaver Parkway Suite 234 Warrenville, II, 60555 630-413-9511 February 3rd, 2020 City of Sebastian 1225 Main St Sebastian, FL 32958 Dear City of Sebastian: This letter has been written to confirm that to our knowledge, BRYCER is the only firm offer- ing the professional services The Compliance Engine delivers. Sincerely Yours, Matthew B. Rice President 183 of 224 CM OF SERASMAN HOME OF PELICAN ISLAND CITY COUNCIL AGENDA TRANSMITTAL Council Meetinq Date: February 12, 2020 Aqenda Item Title: Authorize to Enter into a Three (3) Year Agreement with Mainstream Merchant Services to provide merchant services at the City's Golf Course. Recommendation: Staff recommends that the Council AUTHORIZE the City Manager to enter into a three (3) year agreement with Mainstream Merchant Services for the Golf Course's merchant services, justified as an exemption to the Procurement process; Code of Ordinance Sec. 2-10(d)(4) as "Professional and personal service contracts." Background: The Procurement Division, requests Council's authorization for the City Manager to enter into a three (3) year agreement with Mainstream Merchant Services to provide the Golf Course's merchant services. This purchase is justified as an exemption to the Procurement process; Code of Ordinance Sec. 2-10(d)(4) as "Professional and personal service contracts." The City Golf Course is currently receiving these services from a vendor that was originally signed in March 2015. As a best practice, the Procurement Division reviewed the agreement and 6 months' worth of statements to determine if the City was receiving the best value. For market research, statements were sent to ten (10) merchant service industry competitors requesting a quote/proposal based on the Golf Course's volume. It was requested that each respondent provide proposed rates and any associating fees for terminals, PCI compliance, etc., as well as any suggested alternative approaches that would be in the best interest of the City. Four (4) quotes were received. Mainstream Merchant Services (MS) is local to Indian River County and provides the best amount of savings to the City. Mainstream MS offers a guaranteed discount rate verses the current fluctuating discount rate that we are currently experiencing. Terminal(s) will be provided free of charge along with transparent monthly statements. If Aqenda Item Requires Expenditure of Funds: Amount Budgeted in Current FY: $30,000 Fund to Be Utilized for Appropriation: Golf Course Administrative Services Department Review: r City Manager Authorization: / G� Date: / /� /,:Zc� ell Attachments: 1. Mainstream Proposal wI Service Guarantee 2. Mainstream Merchant Services Application & Terms and Conditions 184 of 224 ��� MAINSTREAM Discount Analysis for: City of Sebastian Thank you for the opportunity to present our processing solutions for your business. As one of the most comprehensive providers in the payments industry, MainStream is committed to providing you first-class service. Our experience in the payments industry allows us to recognize that to be most effective, we must consult and find solutions that will help minimize costs without adversely impacting the customer's experience. Our goal is to actively partner with you to succeed and to build a long-term business partnership with you. We are confident you will find MainStream's pricing extremely competitive; however, please consider our other services concerning your merchant processing decision. Here is an overview of the proposal: Sales VolumeI Previous Overall Rate I MainStream Overall Rate $103,120.25 2.40% 2.26% Monthly SavingsI Annual Savings I 3 Year Savings $141.22 $1,694.70 $5,084.10 About MainStream MainStream Merchant Services is a leading provider of merchant payment processing solutions. Our customers represent a diverse array of organizations in the restaurant, retail, lodging, petroleum and other industries, all with unique credit card processing needs. Our mission is simple: to provide our customers with the best merchant payment processing products and services available to grow their revenue and meet their business goals, at the most competitive rates. The MainStream Advantage At MainStream, we understand our customers want a partner who can handle all of their payment processing needs, allowing them to stay focused on running their business. That's why we offer products and solutions that were developed with your business in mind. MainStream services a variety of business types, from small and medium sized merchants to nationwide outlets. Whether your business is a small retail shop or has multiple locations, our experienced sales team can help you determine the best solutions for your business. At the same time our customer support team is trained to help you overcome complex business problems with proven solutions. A few of the many advantages of becoming a MainStream customer include: • Experienced local sales reps • Next Day Funding • Easy to read statements • Easy to understand online reporting • 24/7 customer service and technical support • Security and PCI compliance Local Account Executives MainStream provides local representation in small and large communities across the U.S. Our local Account Executives are well trained to help make your transition and experience with MainStream First Class. Your local Account Executive is just a phone call away. 186 of 224 %k� MAINSTREAM Next Day Funding Mainstream understands the importance of having access to your funds quickly. That's why Mainstream offers Next Day Funding. With MainStream's Next Day Funding program you will not have to wait the typical 2-3 business days to access your credit card deposits. Your funds can be available at your bank the next business day! Easy to read Statements Understanding your processing statement is key to creating a strong partnership with your payment processor. Our easy to read statements make reconciling your transactions easy. We deliver accurate transaction data, including colored visual graphs, in an easy to read statement format. You can feel confident that you understand the bottom line. Easy to Understand Online Reporting Access your account information 24 hours a day. MainStream provides all the online tools you need to help streamline your processing experience. Need to view Statements, or verify a day's batch? Transaction data is quickly posted to provide you confidential and secure access to current account activity 24 hours a day! When you become a MainStream customer you are automatically enrolled in our online reporting suite, "Transaction Summary". MainStream Assurance A fully -functioning point of sale device is imperative to running your business. That's why we've developed the MainStream Assurance program, an equipment replacement program that enables you to receive a new POs device overnight, no questions asked, should your current unit become inoperable. MainStream Assurance also includes unlimited paper supplies to keep your point of sale devices running 24x7. Security and PCI Compliance All merchants accepting credit/debit cards for payment are required to become compliant with the Payment Card Industry Data Security Standards (PCI DSS). MainStream provides all of our merchants with access to a cost effective and comprehensive PCI tool. Increase Brand Recognition Through Gift Cards For merchants who are looking for a great way to connect to customers while expanding their reach in the marketplace, Mainstream's gift program is the ideal solution. MainStream's customized gift card strategies can help extend your brand and give your customers the best reason to buy from you. MainStream's custom gift card program offers merchants a wide array of options and features such as: Balance inquires, Online transaction reporting, Multi -store solutions, Marketing materials. Thank you again for considering MainStream to be your partner in the support and implementation of your payment -processing program. Should you have any questions about our service, support or pricing proposal, please do not hesitate to contact me. I look forward to a long and successful partnership. Best Regards, James Ryan MainStream Merchant Services Inc. I www,MainStreamMS.com Corporate: (866) 674-1020 Direct: (772) 783-5418 Fax: (866) 933-3608 james.ryan@mainstreamms.com 187 of 224 %k� MAINSTREAM MainStream Service Guarantee At MainStream, customer satisfaction is our passion. We are so certain your new processing services with us will exceed your expectations, that if you are not 100% satisfied with your service for any reason within the first 90 days of beginning card processing, MainStream will unconditionally allow you to cancel your service agreement without any early termination fees, delays, or penalties. With MainStream as your partner in payment processing, you can rest assured customer satisfaction, great service, and competitive pricing will remain our #1 priority. Sincerely, MainStream Merchant Services, Inc. (800) 985-0087: Sales & Service (678) 578-8090: Office (678) 578-8097: Fax csresponseteam@mainstreamms.com www.mainstreamms.com 188 of 224 Kenneth Killgore From: Ann -Marie Fraser Sent: Wednesday, January 29, 2020 2:24 PM To: Kenneth Killgore Subject: FW: City of Sebastian - Mainstream Merchant Services - PROPOSAL From: iames.rvan(&mainstreamms.comfmailto:iames.rvan(a)mainstreamms.comI Sent: Tuesday, January 28, 2020 6:00 PM To: Ann -Marie Fraser Subject: Re: City of Sebastian - Mainstream Merchant Services - PROPOSAL CAUTION: This email originated from outside your organization. Exercise caution when opening attachments or clicking links, especially from unknown senders. Ms Fraser, Good afternoon! With the Standard Cost -Plus program, we have four "static" monthly charges; Note: NONE of these are considered "profit" centers. They are all "pass-through" fees. 1. Statement Fee $5.00 2. PCI Compliance Fee $6.95 3. Regulatory Fee $3.95 4. Mainstream Assurance $6.95 The Statement Fee is the amount we are charged by VISA/MC/AMEX/DISC for the billing information. We have to purchase that from them. The PCI Compliance Fee is exactly that. It relates to the security of the processing, and addresses breeches that could occur within your system. The Regulatory Fee is simply taxes. The Mainstream Assurance Program Fee is the free equipment replacement program you mentioned. We provide all hardware free of charge, and it is then protected, should a failure occur, with free overnight shipping of a new replacement terminal. It should be noted that I will be personally purchasing (out of pocket) an additional piece of hardware for you that will help to further reduce your processing rate. It will also be covered by the replacement program. To address your question further, each of these fees were factored -in to the submitted proposal. They are not additional, or mark-up fees. The rate I am projecting is the final inclusive rate. I feel I need to mention one critical thing: In this industry, it is easy for a merchant services company to hide these types of fees. In fact, we could simply absorb them (on the surface) and bury them in the rate mark-up. 189 of 224 But for us to do this would be deceptive, and violate our standards of ethics and transparency. We believe you have the right to know what you are being charged, and for us to be willing and able to fully explain anything you don't understand. In addition, in full disclosure, there are additional variable fees that are charged by VISA/MC/AMEX/DISC (ex. AMEX Network Fee, NAPF INTL Debit Auth, Visa FANF Fee, MC Acquirers Licence Fee 1, etc.) that may (or may not) show up on your statement, depending upon your customers card types and spending patterns. Again, these are pass-through fees that we have no control of. They are charged by VISA/MC/AMEX/DISC to all merchant services companies, and should always appear on your statement (as they do with your current processor). They are also included in my proposal and the projected monthly savings. This comes to the heart of my point... Anyone promising you All-inclusive billing or fee structures (which many companies do), are doing so specifically to hide the fees then are charciinq. If you don't know what you're being charged, then you won't even know what questions to ask; which is EXACTLY what thev want, and precisely the type of deceptive practices I'm trying to lead you away from. Because of this, and as I've stated multiple times Urn sure vour're aettina tired of hearing it). this relationship we are building is entirely about trust. This is one of the important things about doing business with Mainstream and myself that I am hoping you can effectively convey to the City Council (when you present my proposal). One question: Who precisely will be signing the merchant application itself? Will this be you, or the city manager, or someone else? I would need that info in advance to complete the application. Also, as a part of the application, the Federally required FINCIN form requires a specific individual (usually the City Manager or similar) as the responsible for the account. This requires that person's Social Security Number and DOB to be listed on the form (primarily for identification purposes). As I said, the completion of the document is federally required. Once I get that info from you, I can get the application completed and sent to you to present. Can I ask a question? Are you presenting any other "bids" for this alongside mine? If so, who are they, and can I ask what they are proposing and how they are proposing it? I will be on the road to Pompano Beach tomorrow to meet with a couple clients down, but please feel free to call me should you have any additional questions. Thanks again! James 190 of 224 MAINSTREAM SALES AGENT SPLITS (optional) REFERRAL SOURCE/LEAD NO Sales Agent#1 Referring Source FAX COVERSHEET I 100155 1aa % za19.1 Sales Agent 42 Lead # SUBMIT PAPERWORK TO: I E �,. FAX: 1-866-933-3608 OR CHOOSE COMP STRUCTUPE {iegwed) EMAIL: FAX@MAINSTREAMMS,COM 0 6120 Plan I O Residual Only Plan DATE: AGENT#: 100155 AGENTNAME: James Ryan CUSTOMER NAME: MERCHANT NAME: MERCHANT #: OLA ID#: MERCHANT WEBSITE ADDRESS: www. O PROCESS IO 0 'CASH O ADDITIONAL O UPDATE I TIONAL O CHANGE O CUSTOMERNEW CCUSTOM CONVDISCOUNT MERCHANT MERCHANOT SERVICES/EQUIPMENT OWNERSHIPO " FOR CASH DISCOUNT CONVERSIONS, LIST PREVIOUS MID: IF THIS IS A CHANGE OF OWNERSHIP, LIST PREVIOUS MERCHANT # **PAPERWORK ATTACHED** 0 MERCHANT TRANSACTION PROCESSING AGREEMENT 0 ADDITIONAL SERVICES FORM 0 VOIDED CHECK (MUST BE PREPRINTED) OR BANK LETTER 0 ADDITIONAL EQUIPMENT FORM 0 RECENT STATEMENT (WITHIN THE LAST 3 MONTHS) 0 VALUTEC OR FACTOR4 GIFT CARD FORMS 0 COPY OF PROFIT CALCULATOR 0 CASH ADVANCE ! LOAN FORMS 0 EQUIPMENT PROGRAMMING FORM 0 CHECK SERVICE FORM 0 TERMINAL PLACEMENT AGREEMENT 0 BANK ACCOUNT CHANGE FORM 0 IRS FORM W-9 0 0 FINCEN FORM 0 0 PAYMENT FORM NOTES: 191 of 2241 of 9 iill�'N MAINSTREAM MERCHANT TRANSACTION PROCESSING AGREEMENT MERCHANT APPLICATION FEES APPLY ONLY TO SERVICES USED Vers. 2019.1 O Legal Name z J Legal Address City MUST be a physical street address, not a PO Box J Phone # I Contact I I Email u- Principal Name aHome Address U z Phone # d Q Ownership Type: O Corporation O LLC z ¢ Federal Tax ID# N O O Same as Legal Address ILL DBA Name I— z ¢ Address x U Lu Phone # Title City Month _ _ Date of S5N Birth / Sales Order # ST I1 Zip I I1 IMPORTANT MERCHANT RESPONSIBILITIES I Percent of I, A Visa Member is the only entity approved to extend acceptance of Visa products directly to a Merchant. Ownership ST Zip I I Day Year NOTE: Additional principals can j I provide their information on a 4, The Visa Member is responsible for and must provide settlement funds to the Merchant. separate farm. OSole Proprietorship O Partnership © Tax Exempt 0 Other Month Year Date Opened NOTE: Failure to provide accurate information may result in a I withholding or merchant funding per IRS Regulations NOTE: The merchant address must be a physical street address, not a P.O. Box IContact I I City I Email I II ST = Zip I II I LU MEMBER BANK (ACOUIRER) IMPORTANT MEMBER RANK (AC UIRER)RESPONSIBILITIES IMPORTANT MERCHANT RESPONSIBILITIES INFORMATION I, A Visa Member is the only entity approved to extend acceptance of Visa products directly to a Merchant. 1. Ensure compianca with cardholder data security and storage requirements, EG91 National Hank of Omaha 2. A Visa Member must he a prini {signer) In the Merchant Agreement. 2. Maintain fraud and chargeback's below thresholds. {J) 1620 Dodge Sheet 3, AVisa Member is responsible for educating Merchants on pertinent Visa Operating Regulators with which Merchants must comply. 3. Review and understand the terms o1 the Merchant Agreement 0 Omaha, NE 68197 4, The Visa Member is responsible for and must provide settlement funds to the Merchant. 4. Comply with Visa Operating Regulations. J 800-853-9586 5. The Visa Memserr is responsule ter air lunds held in reserve that are denied from settlement. Tier 2 •� % C� U a O AMEX OptBlue F The responsibilities listed abwedo not supersede the terms of the Merchant Agreement and are provided to ensure the Merchant understands some important obligationsol each party and that the Visa Member (Acquirnl is theultimate outhony should the C) Merchant have any problems, cn o Rate �.� /o Call Q w w Tier % rn 11 Direct (ESA) Item Fee: LU :> (Signature-PrincipaYOffcer/Owner} (Print Name) (MerchanUDBA Name( (Address) O Visa, MasterCard, Discover Integrity, al other applicable association O Visa, MasterCard, Amex, Discover irsarmctionseammarr.com dr contact Mainstream Merchant Services, Inc. at 866.674,1020 O Visa, MasterCard, Discover O AMEX OptBlue Rate % in V EMVt ipl a/4 Per Tier 1 % % CD Per Item $ Call Per Swiped/NFC Keyed % CD v Tier 2 •� % �,� U a O AMEX OptBlue F Per Item $ ,� a Tier 3 cn o Rate �.� /o Call Occurrence w w Tier % O Per Item $ �,� Direct (ESA) Item Fee: LU , cn LU Network Fees Pass -Through ~ Per Item $ El $ Q AMEX Support Fee .10°/ Interchange & Assessments: Pass -Through T5 , AMEX Support Fee .10°/ The following fees witl be passed through al Associations Rate: Visa Zero Floor Limn, Visa International Services (Including Can Advance), visa Misase, MasterCard Goss Border (US1Non-LS11buerte Rim). MasarCard Processing Integrity, al other applicable association lees will be passed through attire Association's rate. Please review the Rate Descriptions online at www irsarmctionseammarr.com dr contact Mainstream Merchant Services, Inc. at 866.674,1020 for additional information on which irlorchan°e oroerams oualty. cn Statement FeesPer � Month Voice � p Per $ 9 5 Per Batch Per $ EETO Occurrence LU t.ui MinimumsPer K Processing Fee 2 b • Location Auth Fee Month Voice Auth . 0 $ D O Call Per Header Fee ACH Reject, NSF or Per $ 2 5 0 0 M Per Location Referral Fee Call Returned Check Fee Occurrence 0 Chargeback Q Handling Fee $ 2 5 Per Voice AVS 0 Q $ 3 D 0 Per Per Retrieval Fee $ �, 0 0 . Occurrence Request Fee Call Occurrence American Express O Debit Item Fee $ 0 0 Per Transaction O Valutec (Refer to Valutec paperwork for their pricing) Direct (ESA) Item Fee: LU , cn LU Network Fees Pass -Through r~i Q Factor Monthly $ 1 5 0 D axed Per $ Transaction w 0 EBT Item Fee $ Per Transaction T5 , Item Fee $ E] Kfl FNS # I I - Merchant Initials Mainstream Merchant Services, Inc. is a registered ISOIMSP of First National Bank of Omaha, 1620 Dodge Street, Omaha, NE 68197 800-853-"2 of 224Pg 2 of 9 %k1 MAINSTREAM MERCHANT TRANSACTION PROCESSING AGREEMENT Sales Order # MERCHANT APPLICATION FEES APPLY ONLY TO SERVICES USED MainStream AssuranceMerchant O Free Supplies and Ovemight 0 Free Supplies O Overnight Equipment Equipment Replacement $11,951Terminal/Month Replacement O Accept O Decline F1 Initials $15.00/TerminaVMcnth $5.951Terminal/Month ("$99 ane -time lee if MA Equipment is added after installation) PCI Compliance Program Fees Regulatory and Compliance Fees rn O Monthly $ �' 9 5 Per Location O O Monthly $ E2' 9 5 Per Location 0 $ �, El Month CL O Annually $ 7 9,� Per Location O Annually $ 4 5 9 5 Per Location g c7 Per PCI Non � C $ Transaction Compliance Fee $ 1791. 9 5 Per Month U) w Q New American Express OptBlue Annual AMEX Volume $ Avg. Ticket $ 0 Existing American Express Direct (ESA) Direct SE # Merchant Cap # 1 0 Wireless Data$ 2 4 5 Per Month/Terminal 9 esim le Swi p p $ 1 5 EI EE Per Month Additional User ID's Plan Fee d ' Pin Pad W Wireless Item Fee $ O 5 Par Transaction O SwipeSimple Register $ i o a a Per Month Additional User ID's virtuattim ile Terminal Fee $ 1 0 O 0 Per Month/Location ('Additional users are $5 per month) If the Agreement is terminated early during the 'Intal Term' (3 years) a arny'Renewaf Term' as defined In sections 4.1 and 4.2 in the terns and conditions, torr any reason other than thane set out in sections 5,7, 5.2, or 5,28 in the terms and conditions. then the merchant agrees to nay Mainstream Merchant Services. Inc.. an earM termination fee in the amount of three hundred and fiffv dollars Der MID. THIS general, absolute, and unconditional continuing Guaranty ('GUARANTY') by the undersigned (collectively 'GUARANTOR' or 'my' or 9' or Yoe"}, is for the benefit of Mainstream Merchant Services Inc. andlor Fust National Bank of Omaha (each a'Guaranty Part}" and "Colsctivaly ]he 'Guaranty Parties ). For value received, and In consideration of the rn&aI undertakings contained in the Merchant Transaction Processtrug Agreement and ailed agreements ("AGREEMENT') between the Guaranty Parties and MERCHANT as set forth below, I absolutely and unconditionally guaranteo the full performance of all MERCHANTs oblgalims to the Guaranty Parties, together vrdh all vests, expenses, and attorneys' fees incurred by any Guaranty Party In connection with any actions, inactions, or defaults of MERCHANT. I waive any right to require the Guaranty Parties to proceed against other entities or MERCHANT. There are no conditions attached to the enforcement of this GUARANTY. t authorize the Guaranty Parties, their respective agents or assigns to make from bine to time any personal credit or other Inquiries and agree to provide, of request, financial statements andlortax retums, I agree that this GUARANTY shall be governed and construed in accordance with the laws of Ste state of Nebraska, and that the courts of nue stale at Nebraska shall have and be vested with personal pmsdiction over me. This is a continuing GUARANTY and shall remain in effect until one hundred eighty (1 50) days afterrecapt by the Guaranty Parties of written native by me lerminating or modifying the same. The termination of the AGREEMENT or GUARANTY shall not release me from labiltywith respect to any obligations incurred before the effective date of lermination. No termination of this GUARANTY shal be effected by any change in my legal status or any Z change in the relationship beovean MERCHANT and me. This GUARANTY shall bind and inure to the beneN 0the personal representatives, heirs, administrators, successors and assigns of GUARANTOR and the Guaranty Parties. a ZD (Signature-Principal/Officer/Owner) (Print Name) (Date) (Address) (Social Security#) (Phone#) 0 08 By i4teir execution below the undersigned parties agree to abide by the Merchant Transaction Processing Agreement lithe "AGREEMENT'}. The AGREEMENT consists of the Merchant Application and the Terms and Conditions (a W separate attachment hereto), and ruERCI-ANT acknowledges that it hasreceived and read the terms and canditiens at the time of signing. MERCHANT warrants thalthe information provided an the Merchant Application is cempkete and U accurate. MERCHANT authorizes Mainstream Merchant Services Inc. andler BANK to provide a copy of this Marchant Application to any thad party for the services requested. MERCHANT, and its signing officerlownerlparther, and any Z Personal Guaranty authorize Mainstream Merchant Services Inc. andler BANK, or its agents or assigns, to make from time to time, any business and personal aedlt and other inquiries. By executing this Merchant Appicatom, F_ MERCHANT, its signing officer, owner, partner and any Personal Guarantor acknowledge that MainStream Merchant Services, Inc. andlor Bank has a legitimate business need for the Information contained in any personal credit report f1 that may be obtained in connection with this Merchant ApplIcation or the Agreement, and that this Appkcation Is a business transaction that was initiated by the MERCHANT andler any Personal Guarantor Identified above, If applicable, W MERCHANT agrees by Its signature below to the American Express OptBlue Program AgreemenL BANK Is not a party to these agreements and has no obligation or habil under such agreements. In witness whereof the pandas hereto U have caused this AGREEMENT to be executed by their duty authorized representatives effective on the data signed or approved by BANK. U (Sign at a re-Princ i pallOffice rlOwne r) (Print Name) (Ttle) (Date) (Mainstream Merchant Services 150" Signature) (Print Name) (Dale) (First National Bank of Omaha °BANK" Signature) (Print Name) (Date) Lu I Was Site inspection Performed? Sales Agent By initialing, the sales agent attests that a site inspection of the above named customer's premises was conducted and (1) 0 Yes 0 No Initials that the customer has the proper facilities, equipment, inventory and licenses required to conduct the business. BANK is not offering equipment under this section and shall have no liability for equipment offered under this section z N E X ManufactuTer/Make/Model Ory w 2 Terminal 00 d Pin Pad 000 w VAR/Other 00 Ship To 0 Merchant DBA Address 0 Merchant Legal Address Q Sales Agent Address 0 Other Shipping Name {James Ryan M_ a Address 1731 Dempsey Ave z W) City Sebastian S7 F L zip 132958 1 Phone# Shipping Method 0 Ground 0 2 -Day 0 Overnight 0 Saturday Mainstream Merchant Services, Inc. is a registered fSUMSP of First National Bank of Omaha, 1620 Dodge Street, Omaha, NE 68197 800-853-9513 93 of 224 Pg 3 of 9 %k` MAINSTREAM MERCHANT TRANSACTION PROCESSING AGREEMENT Sales Order# MERCHANT APPLICATION FEES APPLY ONLY TO SERVICES USED I O Merchant Type: Q Retail Q Restaurant Q Lodging Q E -Commerce Q Supermarket Q Other LL _ Statement MailingStatement Fo�nat: I Chargeback Mailing Address: Q Legal Q Merchant Q Principal Q Summary iJ Detailed Address: Q Legal Q Merchant Q Principal Q Currently Accepts Cards Previous Processor Q Does Not Accept Cards Average Monthly Volume Hiqh Monthly Volume Average Ticket Hiqh Ticket 1$I I $ I I� 1 $1 �$1 1 Do you operate as a (if Seasonal, Indicate Operating Months) Merchant Sales Type O Seasonal Merchant? Q Jan Q Feb Q Mar Q Apr Q May Q Jun U- Q Yes Q No Sales to: Consumer TOTAL =100% Q Jul Q Aug Q Sep Q Oct Q Nov Q Dec Sales to: Business O Z u7 Swiped/Non-Swiped Percentages Business Product Type (describe fully) W Face to FacelSwiped Imprinted/Keyed MaillPhone Internet O II 11 I1 I When is cardholder billed for goods? Q On Order O On Shipment Average number of days I I % of goods/services I I between order and shipment? cash and carry? n �a Do you use any third party Q Yes Q No If Yes, provide a contact list: fulfillment houses? Do you work with any third parties or software vendors who have access to cardholder data? Yes Q No Q If Yes, provide a contact list: Are you currently PCI Compliant? Q Yes Q No Do you have a refund policy? Q Yes Q No If Yes, please indicate: Q VIMC Credit Q Store Credit Q Exchange Q Other Account Type: Q Business Checking Q Personal Checking ZName on Bank Account O O Routing# I Account# U t— IW Bank Name Bank Address O oCity I ST Zip I I Phone # I Deposit Consolidation Q Each batch is deposited individually Q All batches for a merchant combined into a single deposit to accordance with the terms set out in the Terms and Conditions, transfer funds will be made tolfrom the account set forth in the enclosed voided check or bank letter. ATTACH VOIDED CHECK HERE OR INCLUDE BANK LETTER U Q Same as Deposit Account OR Select Account Type Q Business Checking Q Personal Checking Lm Name on Bank Account O ¢ Routing # T- U C7 Bank Name z City I m IAccount# IBank Address I ST Zip I Phone # 1 U I to accordance with the terms set out in the Terms and Conditions, transfer funds will be made to/from the account set forth in the enclosed voided check or bank letter, ATTACH VOIDED CHECK HERE OR INCLUDE BANK LETTER Q Standard Funding Q Apply for Next Day Funding (subject to approval) z To the extent the Next Day Funding is selected on the Merchant Application, and subject to the terms of this AGREEMENT, BANK will generally initiate a credit via ACH of o proceeds from SALES to the DESIGNATED ACCOUNT on the business day after BANK processes such SALES, provided that BANK successfully receives the complete Z transaction data from such SALES by the applicable cut off time as determined by BANK. Notwithstanding the foregoing, BANK will not be liable to MERCHANT if an ACH U- credit of SALES proceeds is not initiated within such one (1) business day time period. BANK may change the lime frame for the ACH credit of SALES proceeds at any time and without notice to MERCHANT. For purposes of this section, "business day" will mean any day on which the Federal Reserve is open for business, other than Saturdays, Sundays, or state or federal holidays. Mainstream Merchant Services, Inc. is a registered ISOIMSP of First National Bank of Omaha, 1620 Dodge Street, Omaha, NE 68197 BOM53-95194 of 224 P9 4 of 9 %k` MAINSTREAM Vers. 2019.1 POS Equipment Communication Method C] Slalic IP Address. Gateway IP Address: EQUIPMENT PROGRAMMING FORM O Dial O IPIEthemet if IP O Static 0 Dynamic Subnet Mask: DNS 1: Receipt Footer: OAII Sales Final O No Refunds 0 Stare Credit Only O Refund to Credit Card W H a Custom Line 1 (Limit of 22 Character Spaces): LU I j Custom Line 2 (Limit of 22 Character Spaces): Of Receipt Font 042(standard) 032 j Customer# �I I DNS 2: Sales Order# Time Zone: O EST O CNT 0 MTN O PAC O FEST O AKST Auto Close: 0 Yes 0 No Auto Close Time: 0 AM ~ Active Processing Options: O Credit O Debit O EBT Q Gift 0 Check Services — Q PM Security Opticns O CVV O AVS EMV Processing, 0On g Off Verifone Confine Sale Amount: 0 On 0 Off Clerk/Server: 0 YesO No Cannot be lumed on on Inoenice talmin s Enter Last 4 Digits:OYes O No Small Ticket': OYes0 No Enable Commercial Card Prompts: O Yes O No Level 1111 0 On O Off Urd.$25.B2B Processing: -Tips " " Manager Password- " Swipe Simple 1 TSYS Mobile 1 TSYS Virtual Terminal" "" Receipts c"7 Tip Line 0 Yes0 No M_ O Default Usel's Full Name: Print Customer Receipt: r— Tip al Time of Sale: 0 Yes 0 No 0 Custom User Email Address: w W Prompt for Tip Percent. Enter Custom Password Below: Access Level Device 0 None 015 0,18/0 020/o 0 (Swipe Simple Only:) (Swipe Simple and TSYS Mobile:) 0 Confirm /e OCuslom: _ % _% — % O Admin {Management) O Android O Member (Cashier) O i05 O Automatic Additional Server Numbers: Please list details of all additional user IDs requested in Adel Server IDs: the notes section at the hottom of the page. Password Options: O Sale 0 Void 0 Refund Q Settlement 0 Offline 0 Tip Adjust 0 Clerk/Server 0 Reports POS System Setup Information z F-- Manufacturer: QSoftware Name: z Software Version: LU MiddlewarelGateway Required? to (Dyes O No i�: MiddlewarelGateway Name, III F— ¢ MiddlewarelGateway Version: c4 W a O Host Capture O Terminal Capture O Dial O IPlEthemet U3 11J F- 0 z For "ISO' use only. Nates will not alter Merchant Application VAR/Reseller Company Information Reseller Name: Reseller Contact Name: Reseller Phone Number: Reseller Fax Number Reseller Email Address Email Parameter Sheet to: VAR Fee to Convert Merchant: $ VAR Fee to install MiddlewarelGateway: $ Mainstream Merchant Services, Inc. Is a registered ISOIMSP o1 First National Bank of Omaha, 1620 Dodge Street, Omaha, NE 68197 BM853-9586 195 Of 224,g 5 of 9 GENERAL INSTRUCTIONS What is this form? To help the government fight Financial crime, Federal regulation requires certain financial institutions to obtain, verify, and record information about the beneficial owners of legal entity customers- Legal entities can be abused to disguise involvement in terrorist financing, money laundering, tax evasion, corruption, fraud, and other financial crimes. Requiring the disclosure of key individuals who own or control a legal entity (i.e., the beneficial owners) helps law enforcement investigate and prosecute these crimes. Who has to complete this form? This form must be completed by the person opening a new account on behalf of a legal entity with any of the following U.S. financial institutions: (i) a bank or credit union; (ii) a broker or dealer in securities; (iii) a mutual fund; (iv) a futures commission merchant; or (v) an introducing broker in commodities. For the purposes of this form, a legal entity includes a corporation, limited liability company, or other entity that is created by a filing of a public document with a Secretary of State or similar office, a general partnership, and any similar business entity formed in the United States or a foreign country. Legal entity does not include sole proprietor- ships, unincorporated associations, or natural persons opening accounts on their own behalf: What information do I have to provide? This form requires you to provide the name, address, date of birth and Social Security number (or passport number or other similar information, in the case of foreign persons) for the following individuals (i. e., the beneficial owners): (i) Each individual, if any, who owns, directly or indirectly, 25 percent or more of the equity inter- ests of the legal entity customer (e.g,, each natural person that owns 25 percent or more of the shares of a corporation); and (ii) An individual with significant respon- sibility for managing the legal entity customer (e.g., a Chief Executive Officer, Chief Financial Officer, Chief Operating Officer, Managing Member, General Partner, President, Vice President, or Treasurer). The number of individuals that satisfy this definition of "beneficial owner" may vary. Under section (i), depending on the factual circumstances, up to four individuals (but as 217 few as zero) may need to be identified. Regardless of the number of individuals identified under section (i), you must provide the identifying information of one individual under section (ii). It is possible that in some circumstances the same individual might be identified under both sections (e.g., the President of Acme, Inc. who also holds a 30% equity interest). Thus_ a completed form will contain the identifying information of at least one individual (under section (ii)), and up to five individuals (i.e., one individual under section (ii) and four 25 percent equity holders under section (i)). The financial institution may also ask to see a copy of a driver's license or other identifying document for each beneficial owner listed on this form. CERTIFICATION OF BENEFICIAL OWNER(S) Persons opening an account on behalf of a legal entity must provide the following information: a. Name and Title ofNatural Person Opening Account: b. Name and Address of Legal Entity for Which the Account is Being Opened: c. The following information for each individual, if any, who, directly or indirectly, through any contract, arrangement, understanding, relationship or otherwise, owns 25 percent or more of the equity interests of the legal entity listed above: Name Date of Birth Address (Residential or Business Street Address) For U.S. Persons: Social For Foreign Persons: Security Number Passport Number and Country of Issuance, or other similar iden- tification number' (If no individual meets this definition, please write "Not Applicable.") d. The following information for one individual with significant responsibility for managing the legal entity listed above, such as: ❑ An executive officer or senior manager (e.g., Chief Executive Officer, Chief Financial Officer, Chief Operating Officer, Managing Member, General Partner, President, Vice President, Treasurer); or ❑ Any other individual who regularly performs similar functions. (If appropriate, an individual listed under section (c) above may also be listed in this section (d)). Name I., above is complete and correct. Signature: Date of Birth Address (Residential of Business Street Address) For U.S. Persons: Social Security Number For Foreign Persons.- Passport ersons.Passport Number and Country of Issuance, or other similar iden- tification number' (name ofnatural person opening account), hereby certify, to the best of my knowledge, that the information provided Date: In lieu ofa. passport number, foreign persons may also provide an alien identification card number, or number and country of issuance of any other government - issued document evidencing nationality or residence and bearing a photograph or similar safeguard, Legal Entity Identifier (Optional) 196 of 224, 6 of 9 Formw_9 Request for Taxpayer Give Form to the 4 Exemptions (codes apply only to Identification Number and Certification requester. Do not (Rev. October 2018) Department of the Treasury send to the IRS. Internal Revenue Service ► Go to www.irs.gov/FormW9 for instructions and the latest information. 1 Name (as shown on your income tax return). Name is required on this line; do not leave this line blank. 2 Business name/disregarded entity name, if different from above M 3 Check appropriate bex for federal tax classification of the person whose name is entered on line 1, Check only one of the 4 Exemptions (codes apply only to CU following seven boxes. certain entities, not individuals; see CL instructions on page 3): o ❑ IndividuaVscle proprietor or ElC Corporation ❑ S Corporation ElPartnership ElTrust/estate 0 single -member LLC Exempt payee code (if any) C+ 2 ❑ Limited liability cempany. Enter the tax classification (C=C corporation, S=S corporation, P=Partnership) ► o Note: Check the appropriate box in the line above for the tax classification of the single -member owner. Do not check Exemption from FATCA reporting LLC if the LLC is classified as a single -member LLC that is disregarded from the owner unless the owner of the LLC is code (if any) o_ another LLC that is not disregarded from the owner for U.S. federal tax purposes. Otherwise. a single -member LLC that is disregarded from the owner should check the appropriate box for the tax classification of its owner. m ❑ Other (see instructions) ► rApAhes (o acco Is mainfarned avrsfda the U.S.) W 5 Address (number, street, and apt. or suite no.) See instructions. Requester's name and address (optional) w m to 6 City, state, and ZIP code 7 List account number(s) here (optional) Aill Taxpayer Identification Number (TIN) Enter your TIN in the appropriate box. The TIN provided must match the name given on line 1 to avoid Social security number backup withholding. For individuals, this is generally your social security number (SSN). However, for a resident alien, sole proprietor, or disregarded entity, see the instructions for Part I, later, For other entities, it is your employer identification number {EIN). If you do not have a number, see How to get a TIN, later. or Note: If the account is in more than one name, see the instructions for line I. Also see What Name and 1 Employer identift8tton number Number To Give the Requester for guidelines on whose number to enter. I I I JiM Certification Under penalties of perjury, I certify that: 1. The number shown on this form is my correct taxpayer identification number (or I am waiting for a number to be issued to me); and 2. 1 am not subject to backup withholding because: (a) I am exempt from backup withholding, or (b) I have not been notified by the Internal Revenue Service (IRS) that I am subject to backup withholding as a result of a failure to report all interest or dividends, or (c) the IRS has notified me that I am no longer subject to backup withholding; and 3. 1 am a U.S. citizen or other U.S. person (defined below); and 4. The FATCA code(s) entered on this form (if any) indicating that I am exempt from FATCA reporting is correct. Certification instructions. You must cross out item 2 above it you have been notified by the IRS that you are currently subject to backup withholding because you have failed to report all interest and dividends on your tax return. For real estate transactions, item 2 does not apply. For mortgage interest paid, acquisition or abandonment of secured property, cancellation of debt, contributions to an individual retirement arrangement (IRA), and generally, payments other than interest and dividends, you are not required to sign the certification, but you must provide your correct TIN. See the instructions for Part 11, later. Sign Signature of Here I U.S. person► General Instructions Section references are to the Internal Revenue Code unless otherwise noted. Future developments. For the latest information about developments related to Form W-9 and its instructions, such as legislation enacted after they were published, go to www.irs.gov/FormW9. Purpose of Form An individual or entity (Form W-9 requester) who is required to file an information return with the IRS must obtain your correct taxpayer identification number (TIN) which may be your social security number (SSN), individual taxpayer identification number (ITIN), adoption taxpayer identification number (ATIN), or employer identification number (EI N), to report on an information return the amount paid to you, or other amount reportable on an information return. Examples of information returns include, but are not limited to, the following. • Form 1099 -INT (interest earned or paid) Date ► • Form 1099 -DIV (dividends, including those from stocks or mutual funds) • Form 1099-MISC (various types of income, prizes, awards, or gross proceeds) • Form 1099-B (stock or mutual fund sales and certain other transactions by brokers) • Form 1099-S (proceeds from real estate transactions) • Form 1099-K (merchant card and third party network transactions) • Form 1098 (home mortgage interest), 1098-E (student loan interest), 1098-T (tuition) • Form 1099-C (canceled debt) • Form 1099-A (acquisition or abandonment of secured property) Use Form W-9 only if you are a U.S. person (including a resident alien), to provide your correct TIN. If you do not return Form W-9 to the requester with a TIN, you might be subject to backup withholding. See What is backup withholding, later. Cat. No. 10231X Form {iii -9 (Rev. 10-2018) 197 of 224g 7019 `k` MAINSTREAM Terminal Placement Agreement This is an agreement between (MERCHANT) and Mainstream Merchant Services Inc., (MAINSTREAM). After MERCHANT has submitted a completed Merchant Transaction Processing Agreement and received processing approval by MAINSTREAM, MAINSTREAM will place one (1) credit card terminal (TERMINAL) type indicated below into MERCHANT place of business, for the purpose of card payment processing as approved by MAINSTREAM. MERCHANT agrees the TERMINAL is the property of MAINSTREAM, is being licensed to MERCHANT, and must be returned in good working condition within thirty (30) days of the termination or expiration of the Merchant Transaction Processing Agreement with MAINSTREAM, or within thirty (30) days of the date when MERCHANT ceases using MAINSTREAM as its card payment processing service provider. If the TERMINAL is not returned within thirty (30) days as described above, MERCHANT agrees to pay MAINSTREAM $350.00 remuneration, and MERCHANT agrees to allow MAINSTREAM to draft MERCHANT bank account via an automatic ACH debit in the amount of $350.00. MERCHANT agrees to be responsible for any damage to the TERMINAL as a result of misuse, negligence, or acts of nature. MERCHANT agrees to indemnify and hold MAINSTREAM harmless from and against any and all liabilities, losses, claims, damages, disputes, offsets, or counterclaims of any kind in any way related to the use (or misuse) of the TERMINAL. This includes any damage to the TERMINAL resulting from an act of nature, fire, or theft, or from misuse or negligence by MERCHANT, its employees, agents or customers. MERCHANT is required to maintain Mainstream Assurance Overnight Equipment Replacement coverage on the TERMINAL. Mainstream Assurance Overnight Equipment Replacement covers the cost of replacing the TERMINAL at no expense to MERCHANT should the TERMINAL fail at any time, excluding for damages caused by negligence or willful acts or omissions of MERCHANT, its employees, agents or customers. MERCHANT will be liable for the full cost of the TERMINAL in the event the TERMINAL is lost, destroyed or made inoperative. The replacement cost of the TERMINAL is $350.00, which MERCHANT agrees to allow MAINSTREAM to draft from MERCHANT bank account via an automatic ACH debit. Mainstream Assurance Overnight Equipment Replacement is $5.95 per month, and must remain in effect as long as merchant is using TERMINAL with MAINSTREAM. MERCHANT may choose to send TERMINAL back to MAINSTREAM at anytime, and Mainstream Assurance will be removed from future billing. Additionally, a $30 fee plus 8% tax for a total of $32.40 is assessed to cover the cost of deployment with 2 -day delivery. Other shipping methods may be available; however, those may require an additional hard cost, which must be assessed. Select Terminal Type: " Check applicable model below " ❑ J f d�� _ _ - o 122 moo Verifone Vx520 Ingenico WT 220DC Dejavoo 28CDC PAX 580 PAX A80 EMV/PCI 3.X/NFC EMV/PCI 3.X/NFC EMV/PC13.X/NFC EMV/PCIS.X/NFC Va520 CDC Va520 DC EMV Tip Adjust EMV Tip Adjust 72 ft paper roll 85 ft paper roll EMV/PCI 3.X/NFC EMV/PCI M By signing below, MERCHANT understands this Agreement constitutes a legal contract with MAINSTREAM. � Sfekl6k Authorized Merchant Signature Print Name Title Date 198 of 2249 8,,f 9 %*h MAINSTREAM PAYMENT FORM Sales Order# Vers, 2019.1 Legal Name t— z Terminal sL Terminal Q Pin Pad Lu Other Q Paid by ACH J J ZD LL Z (Bank Routing #) o Q Paid by Credit Card CL (Credit Card #) Down payment paid by? Q Paid by ACH Manufacturer[Make/Model (Checking Account Number) =/ 0 (Expiration Date) I— z LU (Bank Routing #) (Checking Account Number( Q Paid by Credit Card 0 I I =/= Z >- (Credit Card#J (Expiration Date) m a CL INote: The down payment is due immediately, Remaining installment payments (up to 3) will be collected by ACH in 30 -day increments from the date of this agreement. Certain products are limited to a single installation payment after the down payment. Qty TOTAL EQUIPMENT PRICE $I I 0 Equipment Price $ Tax $ Application Fee $ Other $ Total Due $ Equipment Price $ Tax $ Application Fee $ Other $ Total Due $ Down Payment $ Net Due $ # of Additional Installation Payments Installment Payment Amount $ rY w OTotal Fee $ LU The Undersigned hereby authorizes Mainstream Merchant Services, Inc. to electronically draft via the Federal Automated Clearinghouse (ACH) system the amounts indicated above and, if applicable, all installment payments from the account identified by Customer herein or have the fees described above charged to signer's credit card as indicated. F- z 0 C* (Signature) (Printed Name) (Title) (Date) 199 Of 224 Pg 9 of 9 Terms and Conditions Processing Terms and Conditions Funds Transfer Instructions Card Brand Rules ATM/Debit Network Rules TMS Discover Agreement American Express OptBluesm Program Agreement Provided by �\� MAINSTREAM First National Bank of Omaha 800.853.9586 Member Bank for Visa, Inc. and MasterCard International, Inc. Copyright © 2015 TSYS Merchant Solutions, LLC, Omaha Nebraska. All rights reserved. 201504 Mainstream Merchant Services, Inc. Merchant TBCs. Page 1 of 21200 OpY:F4NTIAL PROCESSING TERMS AND CONDITIONS This Merchant Transaction Processing Agreement (together with its addenda, attachments, and schedules shall be hereinafter known as the "AGREEMENT'), is by and among the parties in the Merchant Application (the "PARTIES"). The AGREEMENT shall become effective as set out in the signature block of the Merchant Application. A. WHEREAS, BANK is a Member of VISA, Inc. ("VISA") and MasterCard International, Inc. ("MASTERCARD"), and provides transaction processing and other services and products ("SERVICES") in relation to financial service cards issued by VISA, MASTERCARD, and other financial service card organizations, including ATM/Debit networks (together herein known as "CARD(S)"); VISA, MASTERCARD, ATM/Debit Networks, and the other financial service card organizations shall be collectively known as "CARD BRANDS"; B. WHEREAS, MERCHANT, in furtherance of its business operations, wishes to accept CARDS and have BANK process the resulting transactions ("SALES") pursuant to the terms and conditions set out below. For purposes of this AGREEMENT, ATM/Debit transactions shall mean those transactions processed on an ATM/Debit network ("NETWORK(S)") in an on-line real time environment requiring the entry of a personal identification number ("PIN"); C. WHEREAS, MERCHANT may desire to be sponsored as a participant in certain NETWORKS, under the terms of the rules and regulations of each such NETWORK; D. WHEREAS, CARD BRANDS and BANK each have adopted rules and regulations relating to all aspects of SALES and SERVICES. Such rules and regulations, as amended from time to time, are incorporated herein by this reference and shall be referred to as the "RULES"; and E. WHEREAS, MERCHANT understands that this is an agreement for transaction processing and that the DISCOUNT (as defined herein) for the SERVICES is calculated based on certain factors, including without limitation, the term of this AGREEMENT, the number of transactions processed, the business type, the type of goods and/or services sold, and the method of processing. F. WHEREAS, BANK has assigned and/or delegated some of its rights and obligations under this AGREEMENT to TSYS Merchant Solutions, LLC ("TMS"); provided however that it is able to do so by the CARD BRANDS, NETWORKS, RULES, and any applicable law. To the extent that BANK has assigned and/or delegated rights and/or obligations to TMS under any particular provision of this AGREEMENT, references to BANK in such provisions shall include TMS.; G. WHEREAS, all applicable ADDENDA are attached hereto and are made a part of this AGREEMENT. NOW, THEREFORE, in consideration of the mutual promises made herein and other valuable consideration, receipt and sufficiency of which are hereby acknowledged, the PARTIES do hereby agree as follows: 1. GENERAL: 1.1 As a result of MERCHANT submitting SALES for processing to BANK, BANK will process such SALES and credit or debit MERCHANT's DESIGNATED ACCOUNT (as defined herein) with the resulting financial proceeds of such SALES, provided, however, that no payment for SALES will take place unless and until BANK has received payment for such SALES from the CARD BRANDS. In addition, when a disputed transaction ("CHARGEBACK") occurs, MERCHANT agrees to provide all requested information to BANK and BANK agrees to forward such information to the CARD BRANDS in accordance with the RULES and the CARD BRANDS' dispute resolution guidelines. BANK is not responsible for the outcome of any CHARGEBACK. 1.2 The CARDS designated herein will be processed under the terms and conditions of the AGREEMENT as long as BANK is contractually permitted to offer such SERVICES by the respective CARD BRANDS. 1.3 On an exclusive basis, MERCHANT agrees to submit all SALES for processing from CARDS accepted in MERCHANT's business as described in the Merchant Application to BANK in accordance with the RULES and pursuant to the terms of this AGREEMENT. 1.4 MERCHANT and BANK agree to abide by the RULES, a summary of which is attached hereto as the CARD BRAND RULES and the ATM/DEBIT NETWORK RULES. The attached summaries are incorporated into the collective definition of the RULES. BANK and CARD BRANDS may from time to time amend the RULES or operating procedures related to SALES and SERVICES. MERCHANT has been supplied with a summary of the RULES and by signing AGREEMENT, acknowledges that it has reviewed them. MERCHANT agrees to comply with all applicable state, federal and local laws, rules and regulations ("LAWS"). MERCHANT agrees to assist BANK in complying in a complete and timely manner with all LAWS and RULES now or hereafter applicable to any SALE or this AGREEMENT. MERCHANT will execute and deliver to BANK all such instruments that BANK may from time to time deem necessary. It is MERCHANT's responsibility to know all applicable LAWS and the RULES that apply to MERCHANTS acceptance of CARDS and to ensure that MERCHANTs equipment complies with all LAWS and RULES. MERCHANT agrees to indemnify, defend, and hold BANK harmless from and against any loss, cost or damage (including reasonable legal fees and court costs) incurred as a result of MERCHANT's failure to comply with applicable LAWS or RULES. 1.5 MERCHANT agrees that it will not use for its own purposes, will not disclose to any third party, and will retain in strictest confidence all information and data belonging to or relating to the business of BANK, including but not limited to the terms of this AGREEMENT, and will safeguard such information and data by using a reasonable degree of care but in no event less than the same degree of care that MERCHANT uses to protect its own confidential information. 201504 Mainstream Merchant Services, Inc. Merchant TBCs Page 2 of 21 201 C,OAI ENTIAL 1.6 Security Standards. A. MERCHANT agrees it will not disclose to any third party any cardholder account information or other personal information except to their agent assisting in completing a card transaction, or as required by LAWS or RULES. MERCHANT must not request or use cardholder account number information for any purpose that MERCHANT knows or should have known to be fraudulent or in violation of the RULES, or for any purpose that the cardholder did not authorize, except to MERCHANT's agent assisting in completing a card transaction, or as required by law. MERCHANT must keep all systems and media containing account, cardholder or transaction information (physical or electronic, including but not limited to account numbers, card imprints, and terminal identification numbers) in a secure manner, to prevent access by or disclosure to anyone other than MERCHANT's authorized personnel. MERCHANT must destroy, in a manner that will render the data unreadable, all such media that MERCHANT no longer deems necessary or appropriate to store (except for Sales Drafts maintained in accordance with this AGREEMENT, LAWS or RULES). Further, MERCHANT must take all steps reasonably necessary to ensure cardholder information is not disclosed or otherwise misused. MERCHANT may not retain or store magnetic stripe, CW2 or CVC2 data after authorization. MERCHANT must not store, and must ensure that all of MERCHANT's third party providers that have access to cardholder data do not store, magnetic stripe, CW2 or CVC2 data after a transaction. B. If MERCHANT uses any third parties who will have access to cardholder data ("Merchant Provider(s)"), or any third party payment application(s) or software, MERCHANT must notify BANK of the identity of the Merchant Provider(s) and/or the name and version of the payment application(s) or software. In addition, MERCHANT must: (1) only allow the Merchant Providers access to the cardholder data for purposes that are authorized by the RULES, (2) have proper security measures in place for the protection of cardholder data, (3) ensure that Merchant Providers have proper security measures in place for the protection of cardholder data, (4) comply with and assure that Merchant Providers comply with the Payment Card Industry ("PCI") Data Security Standard, as amended from time to time, which may be referred to as the Visa Cardholder Information Security Program ("CISP") (found at www.visa.com) and the MasterCard Site Data Protection Program ("SDP") (found at www.mastereard.com) and (5) have written agreements with Merchant Providers requiring the compliance set forth herein. MERCHANT will immediately notify BANK of any suspected or confirmed loss or theft of any transaction information, including any loss or theft from a Merchant Provider. MERCHANT is responsible for demonstrating MERCHANT's and Merchant Providers' compliance with the CISP, SDP, DISC, DSOP, and PCI programs, and providing reasonable access to MERCHANT's locations and ensuring Merchant Providers provide reasonable access to their locations to verify MERCHANT's and Merchant Providers' ability to prevent future security violations. Any fees, fines or penalties resulting from non-compliance will be passed through to MERCHANT. MERCHANT agrees to indemnify BANK and the CARD BRANDS against all costs, expenses, damages and/or losses resulting from any breach of security, or loss or theft of information. C. In addition, in the event of a suspected or confirmed loss or theft of information, MERCHANT agrees, at MERCHANT's cost, to provide all information requested by BANK, a CARD BRAND, other financial institutions, or local, state or federal officials in connection with such event and to cooperate in any ensuing investigation. Any information provided in response to such investigation will (as between MERCHANT and BANK) be considered BANK's confidential information. MERCHANT agrees that BANK may release to the CARD BRANDS, other financial institutions and/or regulatory, local, state or federal officials, any information MERCHANT provides to BANK in connection with a suspected or confirmed loss or theft of transaction information. The requirements of this provision apply to cardholder data regardless of the medium in which the information is contained and regardless of whether MERCHANT processes transactions via Internet, mail, phone, face-to-face or any other method. Additional information regarding data security may be found at the CARD BRANDS' websites. 1.7 Submission by MERCHANT of SALES or participation in SERVICES at any time after seven (7) days from the date of distribution of or publication by the CARD BRANDS of amended RULES to MERCHANT shall be evidence that MERCHANT was provided with and/or received access to the amended RULES and has agreed to abide by them. 1.8 If MERCHANT is a healthcare provider or other entity covered by the Health Insurance Portability and Accountability Act of 1996, as amended, and the supporting regulations under 45 C.F.R. Part 160 and 164, as amended, MERCHANT agrees it will not provide BANK with Protected Healthcare Information (as defined in such act). 2• SPECIFIC OPERATING PROCEDURES: 2.1 MERCHANT agrees that it will comply with all Card Acceptance Procedures in the RULES for each SALE, including, but not limited to the following: A. MERCHANT agrees that it will obtain and record a valid positive authorization for all SALES in accordance with the RULES before submitting them to BANK for processing; B. MERCHANT must be able to prove, by evidence of a terminal capture of the magnetic stripe or a signed SALES DRAFT (as defined in the RULES) showing imprint of the CARD, that the CARD was present at the time of SALE, unless specifically set up for Card Not Present transactions; and C. Failure to read the magnetic stripe on the card may result in a DISCOUNT rate tier downgrade or a CHARGEBACK. 2.2 BANK and/or third party banks with which BANK has a relationship are members of certain NETWORKS and are willing to sponsor MERCHANT as a participant in such NETWORKS ("SPONSOR") as set forth in the Merchant Application. Additional NETWORKS may be available from time to time. BANK does not warrant the continuing availability of any NETWORK. MERCHANT agrees to pay BANK the then current FEES for any NETWORK added or deleted after the effective date of this AGREEMENT. MERCHANT hereby delegates to BANK the authority to decide to which NETWORK a given debit transaction will be routed. 2.3 MERCHANT agrees to accept valid CARDS of each of the selected NETWORKS and any minimums, maximums or surcharges imposed by MERCHANT will be in accordance with the NETWORKS, RULES and LAWS. MERCHANT agrees to comply with Federal Regulation E and the rules, procedures, fees, assessments, penalties, and other obligations of each NETWORK, as from time to time are in effect. 2.4 BANK may provide MERCHANT access through MERCHANT's terminals to the NETWORKS as set forth herein. 201504 Mainstream Merchant Services, Inc. Merchant TBCs Page 3 of 21 202 ,lj.OAJF 411TIAL 2.5 MERCHANT must Batch Out each POS terminal every day. Failure to Batch Out daily will delay the deposit of funds. "Batch Out" is the process by which MERCHANT totals and settles all transactions, on each POS terminal, which occurred before midnight (12:00 a.m.) and transmits the information to BANK. In all cases, MERCHANT must present the record within three (3) business days after the transaction date, unless otherwise permitted by the RULES. Transactions contained in an untimely Batch Out may incur higher rates, be refused, be held for a one hundred eighty (180) day period, or become subject to a CHARGEBACK. MERCHANT is responsible for re-submitting a Batch Out or a sales ticket if the POS terminal fails to properly Batch Out or if sales ticket data does not process through the normal payment cycle. BANK is not liable to MERCHANT for higher rates or for amounts BANK did not collect, including but not limited to amounts collected by third party service providers. 3. PAYMENT OF SUMS DUE: 3.1 MERCHANT agrees to pay BANK the fees as set forth in the Merchant Application and all other sums owed to BANK for SALES and SERVICES as set forth in this AGREEMENT as amended from time to time ("FEES"). FEES include but are not limited to all CHARGEBACKS. MERCHANT agrees that it is jointly and severally liable for all FEES, charges, and other sums owed to BANK by any affiliated entities of MERCHANT. 3.2 As set out in the Merchant Application and the Rate Descriptions, discount ("DISCOUNT") is a FEE charged as a percentage of gross SALES submitted by MERCHANT, which generally includes "Processing," "Authorizations," "Assessments," and "Interchange." Assessments and Interchange are the standard fees that the CARD BRANDS charge for the clearing of SALES transactions and are subject to change by the CARD BRANDS. BANK has no direct control over these fees. Any adjustment in Interchange and Assessments by the CARD BRANDS may result in an adjustment to MERCHANT's DISCOUNT. BANK will notify MERCHANT in writing of any change in FEES caused by action of CARD BRANDS prior to any such change becoming effective. If permitted by the CARD BRANDS, notice to MERCHANT of any change in FEES caused by CARD BRANDS may be less than thirty (30) days. 3.3 DISCOUNT is quoted by BANK based on the information supplied by MERCHANT as set forth in the Merchant Application. MERCHANT agrees that the FEES are based on the term of this AGREEMENT, the method of processing, and the information set forth in the Merchant Application. MERCHANT agrees that such information is a material fact in the calculation of the DISCOUNT and other FEES. MERCHANT agrees that if such information is shown to be incorrect or if such information changes, BANK may amend FEES on less than thirty (30) days notice as set out herein and/or add FEES on less than thirty (30) days notice to reflect such change, unless prohibited by the CARD BRANDS. MERCHANT agrees to pay such amended and/or additional FEES. 3.4 MERCHANT agrees that FEES not listed in the AGREEMENT will be charged at BANK's current rate. 3.5 The FEES may be amended by BANK on thirty (30) days written notice to MERCHANT unless provided otherwise herein. 3.6 MERCHANT agrees to pay BANK for CHARGEBACKS related to SALES or SERVICES. MERCHANT understands that BANK is in no way financially responsible for CHARGEBACKS. Failure to comply with the RULES will increase MERCHANT's exposure to CHARGEBACKS. MERCHANT's obligation to pay CHARGEBACKS shall survive the termination or expiration of AGREEMENT. 3.7 If the CARD BRANDS or a regulatory body governing BANK should levy a fine or penalty or assess a charge to BANK as a result of MERCHANT's SALES or SERVICES or CHARGEBACK activity, MERCHANT agrees to pay such fines, penalties, or charges, and any administrative fees associated with same. 3.8 MERCHANT shall establish a designated account at the institution of its choice ("DESIGNATED ACCOUNT') for the credit and debit of sums between the PARTIES. MERCHANT, pursuant to the Funds Transfer Instructions set out herein, authorizes BANK to make deposits and withdrawals from the DESIGNATED ACCOUNT. MERCHANT hereby grants to BANK a security interest and lien upon the DESIGNATED ACCOUNT to secure all of MERCHANT's (or any related entity under MERCHANT's control) obligations to BANK under this AGREEMENT. If required by BANK, MERCHANT agrees to cooperate with BANK and the depository bank maintaining the DESIGNATED ACCOUNT to cause a Control Agreement to be executed with respect to the DESIGNATED ACCOUNT. MERCHANT agrees to maintain a balance in the DESIGNATED ACCOUNT in an amount specified by BANK and MERCHANT agrees to deposit funds into the DESIGNATED ACCOUNT so that the minimum balance required by BANK is maintained. If this AGREEMENT is terminated for any reason, the DESIGNATED ACCOUNT shall be maintained for a period of one hundred eighty (180) days, plus the period of any warranty or guarantee on goods and/or services sold by MERCHANT and processed as SALES, from the date of the last SALE processed by MERCHANT under AGREEMENT. BANK may recoup and debit from the DESIGNATED ACCOUNT all non-VISA and non-MASTERCARD related FEES and other obligations due to BANK under this AGREEMENT or any other agreement MERCHANT or MERCHANT's related entities have with BANK without prior notice to MERCHANT. BANK may recoup and debit from the DESIGNATED ACCOUNT all FEES and other obligations due to BANK under this AGREEMENT or any other agreement MERCHANT or MERCHANT's related entities have with BANK without prior notice to MERCHANT. After all obligations of MERCHANT under this AGREEMENT are satisfied in full, the balance in the DESIGNATED ACCOUNT, if any, shall be paid to MERCHANT. MERCHANT agrees to indemnify and hold harmless all financial institutions from any loss or claim incurred for acting on instructions from BANK with respect to the DESIGNATED ACCOUNT. MERCHANT agrees not to pledge or assign the DESIGNATED ACCOUNT, any proceeds of it or any other amounts due BANK under this AGREEMENT to any person or entity and MERCHANT shall continually maintain the DESIGNATED ACCOUNT free from all liens and encumbrances. In the event a RESERVE ACCOUNT, as defined below, is established, MERCHANT authorizes BANK to make withdrawals from the DESIGNATED ACCOUNT to replenish the RESERVE ACCOUNT as necessary. 3.9 MERCHANT agrees to provide BANK with a deposit in the amount of money required by BANK ("RESERVE ACCOUNT'), if determined necessary by BANK: (i) at the time this AGREEMENT is executed; (ii) if in the opinion of BANK, information received or discovered about MERCHANT reflects an adverse change in status; (iii) in the event that any information requested by BANK is not received; (iv) upon the notice of termination or expiration of the AGREEMENT; or (v) at any time during the term of this AGREEMENT. BANK may withhold the payment for SALES in an amount reasonably determined by BANK as necessary to secure payment by MERCHANT of all FEES and other obligations under this AGREEMENT and the amounts so withheld shall be deposited into the RESERVE ACCOUNT. If there is not enough money retained to cover the anticipated FEES, BANK may require MERCHANT to remit additional funds. The RESERVE ACCOUNT shall be maintained in a bank account with BANK in 201504 Mainstream Merchant Services, Inc. Merchant TBCs Page 4 of 21 2�3 OfJW9VNTIAL the name of BANK and under the sole control of BANK, and MERCHANT grants to BANK a security interest and lien upon the RESERVE ACCOUNT to secure all of MERCHANT's obligations to BANK under this AGREEMENT. If this AGREEMENT is terminated for any reason, the RESERVE ACCOUNT shall be maintained for a period of one hundred eighty (180) days, plus the period of any warranty or guarantee on goods and/or services sold by MERCHANT and processed as SALES, from the date of the last SALE processed by MERCHANT under AGREEMENT, or for such longer period if determined necessary by BANK in their reasonable discretion to protect BANK from future risk of loss. BANK may recoup and debit from the RESERVE ACCOUNT all FEES and other obligations due to BANK under this AGREEMENT without prior notice to MERCHANT. After all obligations of MERCHANT under this AGREEMENT are satisfied in full, the balance in the RESERVE ACCOUNT, if any, shall be paid to MERCHANT. 3.10 BANK agrees to pay MERCHANT for SALES less FEES owed to BANK by MERCHANT. BANK shall recoup and deduct FEES from incoming transactions or recoup and debit the same from MERCHANT's DESIGNATED ACCOUNT or the RESERVE ACCOUNT. MERCHANT agrees that BANK has the right to deduct these FEES at any time including on a daily basis if necessary. BANK is not obligated to pay MERCHANT or credit the DESIGNATED ACCOUNT for any SALES transmitted or delivered to BANK after MERCHANT becomes insolvent, ceases to do business, or dissolves. 3.11 BANK has the right of recoupment and set-off. This means that BANK may recoup and offset any outstanding or uncollected amounts owed to BANK under this AGREEMENT from: (i) any amounts BANK would otherwise be obligated to deposit into the DESIGNATED ACCOUNT, and (ii) any other amounts BANK may owe MERCHANT under this AGREEMENT or any other agreement. 3.12 If MERCHANT does not pay any sums due within thirty (30) days from date of notice, BANK will charge, and MERCHANT agrees to pay, a late fee of one and one-half percent (1.5%) per month on the balance outstanding or the highest amount allowed by law. 3.13 If MERCHANT breaches AGREEMENT or if BANK identifies suspicious or irregular activity related to SALES or SERVICES, BANK may refuse to process SALES or to provide SERVICES and/or may hold funds pending the cure of such breach or resolution of such activity. 3.14 If BANK takes any action against MERCHANT to collect any FEES or monies due to BANK from MERCHANT, MERCHANT agrees to pay all costs of collection, including but not limited to, attomey fees, to the extent allowed by law. 3.15 If MERCHANT is a participant in a BANK third party program including, but not limited to, Agent Bank and/or CARD BRAND programs, and MERCHANT subsequently leaves such third party, BANK may amend the FEES or terminate the AGREEMENT. 4. TERM OF AGREEJ�ENT: 4.1 The initial term of this AGREEMENT shall be for three (3) years ("INITIAL TERM") commencing on the date this AGREEMENT is approved by BANK or approved and uploaded by BANK's Risk Department. 4.2 At the expiration of the INITIAL TERM, this AGREEMENT will automatically renew for successive two (2) year periods ("RENEWAL TERM") unless terminated as set out below. 5. TERMINATION OF AGREEMENT: 5.1 This AGREEMENT may be terminated by BANK at any time effective upon thirty (30) days written notice. 5.2 MERCHANT may terminate this AGREEMENT as follows: A. upon BANK's default of any material obligation to MERCHANT thereunder and the failure of BANK to cure such default within thirty (30) days after written notice of such default; B. upon written notice of non-renewal at least thirty (30) days prior to the commencement of any RENEWAL TERM; or C. on thirty (30) days notice of termination accompanied by payment of the ACCOUNT CLOSURE FEE. 5.3 In order to protect the CARD BRANDS and BANK, BANK may terminate this AGREEMENT effective immediately for any of the following reasons: A. insolvency, receivership, voluntary or involuntary bankruptcy, assignment of any of MERCHANT's assets for the benefit of MERCHANT's property creditors, or if any part of MERCHANT's property is or becomes subject to any levy, seizure, assignment or sale for or by any creditor or governmental agency without being released within thirty (30) days thereafter; B. if MERCHANT fails to pay any FEES when due; C. if MERCHANT has misrepresented or omitted any material information provided to BANK; D. if MERCHANT is in breach of the AGREEMENT or the RULES; E. if MERCHANT, after BANK's request, fails to send copies of SALES DRAFTS to BANK; F. if MERCHANT submits for processing SALES that were not originated as a result of a direct SALE transaction between a cardholder and MERCHANT in the normal course of business ("LAUNDERING"); G. if the number of CHARGEBACKS experienced by MERCHANT in any one (1) month exceeds one percent (1 %) of the number of SALES in that or any prior month; H. in the event of a material change of MERCHANT's business as described in the Merchant Application ("BUSINESS"); I. in the event the CARD BRANDS identify MERCHANT, its principal, or associated parties under any program designed to monitor merchants, or MERCHANT creates circumstances that cause harm or loss of goodwill to BANK or the VISA system; J. if MERCHANT is inactive for ninety (90) days and is not a seasonal MERCHANT; or K. in the event that Guarantor (if designated) gives notice of its intention to withdraw the Guaranty. 5.4 Effect of Termination of the AGREEMENT: A. In the event that this AGREEMENT is terminated by BANK for cause, BANK may be required to report the name and address of MERCHANT and MERCHANT's principals to the CARD BRANDS for inclusion on the Terminated Merchant File and in other programs that monitor merchants. In the event that this AGREEMENT is terminated for cause and MERCHANT is obligated to BANK for sums due and the principals of MERCHANT are liable for such debts, a negative credit report may be submitted to a credit-reporting agency. 201504 Mainstream Merchant Services, Inc. Merchant TBCs Page 5 of 21 2040 1r��D�fNTIAL B. MERCHANT hereby releases, indemnifies and holds BANK and the CARD BRANDS harmless to the fullest extent permitted by applicable law for any loss or damage it may incur as a result of reporting MERCHANT or its principals to a credit reporting agency hereunder or as a consequence of MERCHANT or its principals being placed by BANK or its Agents on the CARD BRANDS' merchant monitoring lists. 6. BANKRUPTCY: 6.1 In the event of a bankruptcy filing by MERCHANT, BANK reserves the right to suspend or discontinue processing SALES or providing SERVICES. Upon filing voluntary or involuntary bankruptcy proceedings by or against MERCHANT, MERCHANT must notify BANK in writing within five (5) days. Notification must be sent by certified mail to BANK at the address for NOTICES set out herein. 6.2 Credits to MERCHANT's DESIGNATED ACCOUNT and other payments to MERCHANT are provisional. The PARTIES acknowledge the AGREEMENT is an agreement whereby BANK is extending financial accommodations to MERCHANT within the meaning of 11 U.S.C.§ 365(c)(2) of the Bankruptcy Code as amended from time to time. The right of MERCHANT to receive any amounts due or to become due from BANK is expressly subject and subordinate to the CHARGEBACKS, recoupment, setoff, lien, and security interest rights of BANK under this AGREEMENT without regard to whether such CHARGEBACKS, recoupment, setoff, lien, and/or security interest rights are being applied to claims that are liquidated, unliquidated, fixed, contingent, matured, or unmatured. 7. INFORMATION AND DOCUMENTATION: 7.1 MERCHANT agrees to comply with all requests for information and documentation regarding SALES and the CARDS utilized in processing such SALES or SERVICES under AGREEMENT within the time period stated by BANK in its request. 7.2 USA PATRIOT ACT REQUIREMENTS. To help the government fight the funding of terrorism and money laundering activities, the USA PATRIOT Act requires all financial institutions to obtain, verify, and record information that identifies each person (including business entities) who opens an account. What this means: When MERCHANT opens an account, BANK will ask for the applicant's name, physical address, date of birth, taxpayer identification number, and other information that will allow BANK to identify the applicant. BANK may also ask to see the applicant's driver's license or other identifying documents. BANK will advise MERCHANT if additional information is required. 7.3 Upon BANK's request, MERCHANT shall provide BANK with current financial statements in a format acceptable to BANK. 7.4 MERCHANT, its signing officer/owner/partner/principal, and any Personal Guarantor authorize BANK, or its agents or assigns, to make, from time to time, any business and personal credit and other inquiries BANK considers necessary to review the acceptance and continuation of this AGREEMENT. MERCHANT authorizes parties contacted by BANK or any of its affiliates, in relation to this AGREEMENT, to release the credit information requested by BAN K or any affiliate. By executing this AGREEMENT, MERCHANT, its signing officer/owner/partner/principal and any Personal Guarantor acknowledge that BANK has a legitimate business need for the information contained in any personal credit report that may be obtained in connection with this AGREEMENT, and that this AGREEMENT is a business transaction that was initiated by the MERCHANT and/or any Personal Guarantor identified in the Merchant Application. 7.5 MERCHANT is supplied with monthly reports by BANK regarding MERCHANT's SALES or SERVICES activity. It is MERCHANT's sole responsibility to report any error or discrepancies detected by MERCHANT in writing to BANK within ninety (90) days following the end of the monthly reporting period. After such period, MERCHANT will be deemed to have accepted the monthly reports as delivered. 7.6 MERCHANT will notify BANK immediately of any change in ownership, corporate or "d/b/a" name, location address, or the information contained on MERCHANT's imprinter plates. 7.7 If MERCHANT participates in any BANK third party program, MERCHANT agrees that BANK may report information as required to such third party. 7.8 MERCHANT is solely responsible for maintaining complete backup records of all information relating to its customers' orders, inquiries, purchases, SALES and any other customer information in accordance with this AGREEMENT, LAWS, and RULES. 8. PRQCVSSING RESTRICTIONS: 8.1 MERCHANT agrees that it will not materially change its BUSINESS or the method in which it markets or sells the goods and services of BUSINESS without informing BANK in advance of such change. BANK will only process SALES from the BUSINESS as defined in the AGREEMENT. 8.2 If actual monthly SALES volume substantially exceeds the projected annual SALES volume as provided in the Merchant Application and pro -rated to one month, BANK may, at its option, do one or more of the following: (i) refuse to process SALES in excess of such sum; (ii) process such SALES and retain the proceeds of such SALES until the next month and release such sums to MERCHANT at that time counting this volume as SALES volume for that month; (iii) terminate this AGREEMENT; and/or (iv) amend this AGREEMENT in a way as to ensure that BANK has security for the increased volume. Such rights of termination and retention of funds are in addition to those already provided for herein. 8.3 In the event of failure, including bankruptcy, insolvency, or other suspension of business operations by MERCHANT, MERCHANT shall not sell, transfer, or disclose any materials that contain cardholder account numbers, personal information, or other CARD BRAND transaction information to third parties. Upon request from BANK, MERCHANT shall either (i) provide this information or (ii) provide acceptable proof of destruction of this information. 9. USE OF THE INTERNET. SYSTEM INTEGRATORS. ANDIOR THIRD PARTY SERVICE PROVIDERS: 9.1 If MERCHANT accepts SALES through its web site or through a system integrator, MERCHANT shall at all times maintain and be responsible for the security of the transmission of data relating to the processing of SALES associated with this AGREEMENT. MERCHANT shall be responsible for obtaining and maintaining web site security, for the encryption of all data, and for any and all storage of data. MERCHANT shall display on its web site its: (i) consumer data privacy policy and (ii) security method for transmission of payment data. An e-commerce MERCHANT must display the address of its "permanent establishment" on its web site along with MERCHANT's country of domicile, either: a) on the same screen view as the checkout screen used to present the total purchase amount; or b) within the sequence of web pages the cardholder accesses during the checkout process. 201504 Mainstream Merchant Services, Inc. p Merchant T&Cs Page 6 of 21 205C pt TNTIAL 9.2 MERCHANT shall be responsible for obtaining and contracting with any third party service provider(s), payment engine(s), payment gateway(s), and any other Internet service provider(s) and/or system integrator(s). MERCHANT shall ensure that said third parties appropriately format and transmit SALES to BANK in accordance with the then current RULES and requirements of BANK and CARD BRANDS. If MERCHANT is using a third party's terminal or software application, (i.e. dial terminal or equivalent sales capture solution), and the third party is providing the customer service, then such third party is a separate entity and is not an agent of BANK. MERCHANT understands the AGREEMENT is between BANK and MERCHANT. Disputes involving a third party shall be dealt with independently from BANK. If disputes are unresolved and relate to SERVICES provided under the AGREEMENT, MERCHANT shall notify BANK at the address set out in the AGREEMENT. MERCHANT must pay BANK regardless of any disputes it has with any third party. If MERCHANT elects to use the terminal or software of third party providers to capture and transmit SALES to BANK, MERCHANT must disclose the relationship to BANK and MERCHANT assumes full responsibility and liability for such third party provider's failure to comply with the RULES. The third party provider may be the source for information regarding SALES, authorizations and CHARGEBACKS that may be needed by BANK. Certain CHARGEBACKS require authorization information to reverse. MERCHANT is responsible for obtaining this information from such third party provider. BANK is not liable for SALES that it did not receive. MERCHANT understands that in the event MERCHANT rents BANK terminals, the communications vendor is not responsible for losses arising from the SALES processed using the vendor's service. 9.3 MERCHANT agrees that BANK is not responsible for any services or equipment provided by any third party with which MERCHANT has contracted. MERCHANT agrees that BANK is not responsible for and is not able to provide customer service for the point of sale ("POS") devices installed by and/or operated by any third party with which MERCHANT has contracted. MERCHANT should contact the third party for service of this equipment. MERCHANT shall not allow any third party to install, remove, or modify any terminal software application of BANK without the express written consent of BANK. MERCHANT agrees BANK can only process SALES received by BANK, and any third party is responsible for ensuring SALES are formatted and transmitted to BANK in accordance with the then current requirements of BANK and CARD BRANDS. BANK may increase FEES if a third party presents SALES transactions not in accordance with the then current CARD BRANDS' requirements. MERCHANT assumes full responsibility and liability for DISCOUNT rate tier downgrades caused by any third party. MERCHANT assumes full responsibility and liability for third party providers' failure to comply with the RULES. MERCHANT is responsible for obtaining from the third party provider any information needed by BANK. 9.4 MERCHANT shall assume full liability and shall indemnify and hold BANK and CARD BRANDS harmless for: (i) the actions and/or inactions of any third party with which MERCHANT has contracted or (ii) the failure of any third party with which MERCHANT has contracted to comply with the LAWS or RULES. 10. LIMITATION OF LIABILITY AND DISCLAIMER OF WARRANTIES: 10.1 MERCHANT's rights and remedies hereunder are exclusive and in lieu of all other rights and remedies. BANK shall not otherwise be liable for any error, omission, delay, computer virus, loss of data or records or disclosure of confidential information which may occur as a result of, or in any way be connected with, the rendering of SERVICES hereunder. BANK shall not be liable for any services or products of third parties. In any event, BANK's liability to MERCHANT, whether arising in contract, tort (including, without limitation, negligence and strict liability) or otherwise, shall not exceed the lesser of the direct loss to MERCHANT or an amount equal to the processing portion of the DISCOUNT paid to BANK by MERCHANT in the month prior to the incident giving rise to liability. In no event shall BANK, the CARD BRANDS, or the CARD BRANDS' contractors be liable for losses, damages, or liabilities whether in contract, tort (including negligence), strict liability or under any other theory incurred by MERCHANT, MERCHANT's customers, or any other person or entity arising under this AGREEMENT. IN NO EVENT SHALL BANK, THE CARD BRANDS, OR THE CARD BRANDS' CONTRACTORS BE LIABLE FOR SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR EXEMPLARY DAMAGES OR FOR ANY INTERRUPTION OR LOSS OF USE, DATA, VIRUSES, BUSINESS OR PROFITS, WHETHER OR NOT SUCH LOSSES OR DAMAGES WERE FORESEEABLE OR BANK WAS ADVISED OF THE POSSIBILITY THEREOF AND REGARDLESS OF WHETHER ANY LIMITED REMEDY HEREIN FAILS OF ITS ESSENTIAL PURPOSE. 10.2 THE SERVICES ARE PROVIDED "AS IS," "AS AVAILABLE," AND ALL WARRANTIES, EXPRESS OR IMPLIED, ARE DISCLAIMED BY BANK, THE CARD BRANDS, AND THE CARD BRANDS' CONTRACTORS, INCLUDING BUT NOT LIMITED TO, THE DISCLAIMER OF ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON -INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. BANK ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY ERRORS OR OMISSIONS IN THE CONTENT. THIS AGREEMENT IS A SERVICE AGREEMENT AND THE PROVISIONS OF THE UNIFORM COMMERCIAL CODE SHALL NOT APPLY. 11. WARRANTIES AND INDEMNITIES 11.1 MERCHANT understands that SANK merely provides processing services for SALES or SERVICES and is neither a partner in MERCHANT's business operations nor a guarantor of the receipt by MERCHANT of the proceeds of SALES or SERVICES. Furthermore, BANK does not guarantee that SALES or SERVICES will not be subject to CHARGEBACKS. 11.2 MERCHANT warrants there is no action, suit or proceeding pending or to MERCHANT's knowledge threatened, which, if decided adversely, would impair MERCHANT's ability to carry on MERCHANT's business substantially as now conducted or which would adversely affect MERCHANT's financial condition or operations. MERCHANT warrants that it, or its principals or sales agents have not been terminated from depositing SALES with any other member of the CARD BRANDS, have never been placed on the MasterCard MATCH system, or on the Combined Terminated Merchant File except as disclosed in writing to BANK. 11.3 MERCHANT warrants that at the time of depositing SALES for processing: (i) it has the right to assign such SALES to BANK and does by this reference assign all its rights, title, and interest to payment for such SALES to BANK so that BANK may process SALES under the AGREEMENT; (ii) it has no knowledge of any fact that would impair the collectability of the SALES; and (iii) that the SALES represent a valid obligation of the cardholder: (a) in the amount indicated; (b) for merchandise so Id and delivered or services rendered to the cardholder by the MERCHANT; and (c) it does not involve any element of credit for any other purpose. 201504 Mainstream Merchant Services, Inc. Merchant T&Cs Page 7 of 21 206 0��4ENTIAL 11.4 MERCHANT agrees to indemnify and hold harmless BANK, SPONSORS, and CARD BRANDS, including the CARD BRANDS' contractors, from and against any claims, demands, or judgments, made or recovered against it, arising out of any misrepresentation or breach by MERCHANT of the terms of this AGREEMENT or arising from any act or omission by MERCHANT which violates any LAWS, the RULES, or the rights of another person or otherwise injures any third party. BANK, SPONSORS, or the CARD BRANDS may defend on its own any such claims or demands or request MERCHANT to take up such defense. In either event MERCHANT will further indemnify BANK, SPONSORS, and the CARD BRANDS for reasonable attorney fees or any other necessary expenses incurred by BANK by reason of such defense. 11.5 MERCHANT shall be solely responsible for losses and CHARGEBACKS incurred as a result of, or arising out of, any fraud including LAUNDERING, negligence, or willful misconduct on the part of MERCHANT, or MERCHANT's employee(s) or agent(s). 11.6 MERCHANT is responsible for any electronic virus or viruses that may be encountered and is responsible for routinely scanning its computers and diskettes using a reliable virus product to detect and remove any viruses found. 12. NOTICES: 12.1 All notices required under this AGREEMENT from MERCHANT shall be written paper notices effective, unless otherwise stated in AGREEMENT, upon the earlier of actual receipt thereof or the third (3rd) business day following such notices being deposited postage prepaid in the United States Postal System. 12.2 All written paper notices shall be sent to the following addresses, which may be changed by any PARTY by designating an alternate address, effective upon fourteen (14) days notice of such change: If to BANK: If to MERCHANT: TSYS Merchant Solutions, LLC At the address set out in the Merchant Application or such Attention: Merchant Legal Department alternative address as designated in writing by MERCHANT. 1601 Dodge Street, 23E Omaha, NE 68102-1637 If to ISO: At the address set out in the Merchant Application or such alternative address as designated in writing by ISO. 12.3 MERCHANT consents to receiving electronically rather than in paper form all notices, disclosures and other documents ("DOCUMENTS") which are to be provided to MERCHANT under this AGREEMENT. MERCHANT will be notified that a DOCUMENT is available at BANK's web site with a link to that specific page of the web site containing the DOCUMENT. MERCHANT agrees that such notification will be sent to MERCHANT at the e-mail address provided as part of the Merchant Application. Any DOCUMENT sent to MERCHANT electronically will be maintained on the website for not less than six (6) months from the date of its posting on the web site. MERCHANT understands and acknowledges that access to the Internet, e- mail and the worldwide web are required for MERCHANT to access a DOCUMENT electronically and MERCHANT confirms that MERCHANT has such access. MERCHANT understands that there are costs related to access DOCUMENTS electronically and MERCHANT agrees that MERCHANT is responsible for these related access costs. Without advance notice to MERCHANT and at any time, electronic DOCUMENTS may no longer be sent to MERCHANT, in which case a paper copy of the DOCUMENT will be sent to MERCHANT pursuant to Sections 12.1 and 12.2. 13. MISCELLANEOUS: 13.1 Assionment. Except as expressly provided in this AGREEMENT, MERCHANT may not assign its rights or delegate its responsibilities under this AGREEMENT without the prior written consent of BANK. BANK may assign its rights or delegate duties under this AGREEMENT without the prior consent of MERCHANT. Without limiting the generality of the foregoing, MERCHANT shall not assign, transfer or encumber its present or future payment rights under this AGREEMENT or connected with a RESERVE ACCOUNT, if any; nor shall BANK be obligated to honor such purported attempt to assign, transfer or encumber such rights or funds unless BANK consents in writing. 13.2 Governina Law and Forum. The PARTIES acknowledge and agree that this AGREEMENT and the Guaranty contained herein was, and shall be deemed to have been, made and delivered in Douglas County, Nebraska. The laws of the State of Nebraska, without giving effect to its conflicts of law principles, shall govern all matters (whether in contract, statute, tort or however characterized) arising out of or relating to this AGREEMENT and any Guaranty contained herein, including, without limitation, the validity, interpretation, construction, performance and enforcement of the AGREEMENT and Guaranty. The PARTIES agree that, in the event of any dispute regarding, arising out of or relating to this AGREEMENT or any Guaranty contained herein, the courts of the State of Nebraska shall have and be vested with personal jurisdiction over the PARTIES. The PARTIES further agree that any and all actions, claims, suits or proceedings arising out of or relating (directly or indirectly) to this AGREEMENT or any Guaranty contained herein shall be filed and litigated only in courts located in Douglas County, Nebraska, and such courts shall have exclusive jurisdiction over any action, claims, suit or proceeding arising out of or relating (directly or indirectly) to this AGREEMENT or any Guaranty contained herein. 13.3 Waiver of Jury Trial and Covenant Not to Particioate in a Class Action. MERCHANT HEREBY AGREES NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVES ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST WITH REGARD TO THIS AGREEMENT OR ANY ACTION, LAWSUIT, CLAIM, COUNTERCLAIM OR OTHER ACTION RELATING TO, OR ARISING UNDER THIS AGREEMENT AND/OR ANY TRANSACTION GOVERNED BY THIS AGREEMENT. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY, VOLUNTARILY AND INTENTIONALLY BY MERCHANT, AND IS INTENDED TO ENCOMPASS EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY JURY WOULD OTHERWISE BE AVAILABLE. BANK IS HEREBY AUTHORIZED TO FILE A COPY OF THIS PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY MERCHANT. MERCHANT ALSO COVENANTS NOT TO BRING OR PARTICIPATE IN ANY CLASS ACTION AGAINST BANK BASED UPON ANY CLAIMS ARISING FROM THIS AGREEMENT. IF A CLASS PROCEEDING IS INITIATED AGAINST BANK, MERCHANT MAY NOT JOIN THAT PROCEEDING OR PARTICIPATE AS A MEMBER OF THAT CLASS. If MERCHANT brings legal action against BANK for any reason, MERCHANT shall commence the action within one (1) year of the date the error or the incident giving rise to such action occurred. 201504 Mainstream Merchant Services, Inc. Merchant TBCs Page 8 of 21 207 OpplF1C1ENTIAL 13.4 Waiver. No delay or failure by either PARTY to exercise any right under AGREEMENT and no partial or single exercise of that right shall constitute a waiver of that right or any other right, unless expressly provided for in AGREEMENT. 13.5 Force Maieure. BANK is not liable or responsible for any failure or delay in performance caused by any Act of God, strikes, flood, fire, war, public enemy, electrical or equipment failure, failures by third parties, or other events beyond its control. 13.6 Entire Aoreement. This AGREEMENT constitutes the entire understandings of the PARTIES as to the subject matter contained herein and supersedes all prior contracts, agreements, and negotiations between the PARTIES whether verbal or written. 13.7 Costs. Neither PARTY shall be responsible for the costs incurred by the other in negotiating or implementing this AGREEMENT. 13.8 Survival. The obligations of all PARTIES incurred prior to the effective date of termination of this AGREEMENT will survive the termination of this AGREEMENT. If any portion of the AGREEMENT is held invalid or unenforceable for any reason, it is agreed that any invalidity or unenforceability will not affect the remainder of the same and the remaining provisions will remain in full force and effect. The PARTIES agree that the Court of competent jurisdiction may modify any objectionable provision of the AGREEMENT so as to render it valid, reasonable and enforceable. 13.9 Amendment. This AGREEMENT may be amended or modified by BANK effective upon thirty (30) days written notice. Any alteration or strikeover in the text of this pre-printed AGREEMENT will have no binding effect and will not be deemed to amend this AGREEMENT. 13.10Authority. By signing the AGREEMENT, each PARTY represents that it has the full legal power and authority to enter into performance obligations under this AGREEMENT. Each PARTY represents that the entering into of this AGREEMENT has been duly authorized; the signer is a duly authorized signatory; this AGREEMENT constitutes a legal, valid, and binding obligation of each PARTY; and that this AGREEMENT is enforceable against each PARTY in accordance with its terms. 13.11 P -Card. To the extent applicable, BANK agrees not to use any information supplied by MERCHANT in the Purchasing Card Information that is required for acceptance of purchasing cards, in its decision as to whether to accept MERCHANT for processing. MERCHANT agrees to hold BANK harmless from any and all claims relating to the collection, processing, dissemination, and use or misuse of the information contained in the Purchasing Card Information. MERCHANT acknowledges that the information from the Purchasing Card Information will be sent to MERCHANT's corporate customers who pay with a purchasing card. MERCHANT agrees that BANK is not responsible for any actions or omissions of others regarding this information. 13.12 Taxes. MERCHANT agrees to pay all federal, state, and local sales, use, property and excise taxes, including penalties and interest, which may be assessed in connection with the services and related products provided under this AGREEMENT. The FEES set forth in the AGREEMENT are exclusive of any and all applicable taxes or assessments, whether designated as sales taxes, use taxes, ad valorem taxes, GST/HST taxes, VAT taxes or by some other name or designation, and including any interest or penalties thereon, which may be levied or assessed by any governmental or taxing jurisdiction in connection with the performance of services or provision of materials to MERCHANT by BANK. In the event of the payment of or for any such tax, assessment or expense by BANK, MERCHANT shall in tum pay BANK for such items. 13.13 Disclosure of Merchant Identification Number ("MID"). For security reasons, MERCHANT must disclose its MID thereby authorizing BANK to make changes to its account. BANK may request from MERCHANT additional information to further verify MERCHANT's identity. BANK may assume that the person disclosing the MID has the authority to make changes to MERCHANT's account. MERCHANT authorizes BANK to share information regarding the MERCHANT's account with the person disclosing the MID. MERCHANT is responsible and liable for changes made after disclosure of its MID. MERCHANT is responsible for insuring its MID is kept confidential. 13.14 Information. MERCHANT authorizes BANK to release and use MERCHANT's information, in connection with offering or providing business products and services, to third parties that provide services to BANK or MERCHANT or to any third party that requests and has a reason to know such information, including but not limited to the CARD BRANDS, and any third -party having regulatory control over the PARTIES. 13.15 Counteroarts/Facsimile. This AGREEMENT may be executed and delivered in any number of counterparts, each of which shall be an original but all of which together shall constitute one and the same instrument. Any photocopy, facsimile, electronic or other copies shall have the same effect for all purposes as an ink -signed original. MERCHANT hereby authorizes BANK and its affiliates to send facsimiles to the MERCHANT's facsimile number set forth in this AGREEMENT. 13.16 Monitoring- MERCHANT understands and agrees that any telephone conversation between MERCHANT and BANK may be monitored and recorded. 13.17 Binding Agreement. This AGREEMENT shall not become a binding AGREEMENT between the PARTIES until (i) it is approved by BANK; and (ii) BANK has received a negative response to its inquiry of the CARD BRANDS' programs designed to monitor merchants. The commencement of transaction processing under this AGREEMENT shall constitute BANK's approval and its signature to this AGREEMENT. 13.18 Products and Services. BANK may from time to time add products and/or services to the SERVICES. At MERCHANT's request, BANK may provide such additional products and/or services to MERCHANT at BANK's then current rate. MERCHANT agrees to abide by all parameters set by BANK for such products and/or services as set out in any product specification or documentation as amended from time to time. MERCHANT is responsible for any coding and testing, if necessary, for such products and/or services. BANK has made reasonable efforts to secure information and abides by the CARD BRANDS' security guidelines but BANK does not guarantee security. MERCHANT is responsible for protecting access to any passwords or user identification numbers. Access to and use of password protected areas of any products and/or services are restricted to authorized users only. It is the MERCHANT's obligation to notify BANK immediately if its passwords or user identification numbers have been lost or stolen or if there has been unauthorized access. BANK shall at all times retain all title to and ownership of the products and SERVICES. MERCHANT agrees not to, directly or indirectly, modify, reverse engineer, decompile, disassemble or derive source code from the products and SERVICES. Any PARTY may terminate a product and/or service at any time upon thirty (30) days written notice to the other without terminating the AGREEMENT. 13.19 Communication. MERCHANT authorizes BANK and its affiliates to communicate with, solicit and/or market to MERCHANT via regular mail, telephone, e-mail and facsimile in connection with the provision of goods or services by BANK, its affiliates, or any 201504 Mainstream Merchant Services, Inc. Merchant T&Cs Page 9 of 21208 OCfJAIEdBENTIAL third party that BANK shares, transfers, exchanges, discloses or provides information with or to pursuant this AGREEMENT and will hold BANK, its affiliates and such third parties harmless against any and all claims pursuant to the federal CAN -SPAM ACT of 2003, the Telephone Consumer Protection Act and any and all other state or federal laws relating to transmissions or solicitations by any of the methods described above. 13.20 Disclosure. The CARD BRANDS require that the following be disclosed to MERCHANT: (i) if applicable, BANK is in control of Independent Sales Organization's ("ISO") and/or Member Service Provider's ("MSP") performance under this AGREEMENT; (ii) BANK must pre -approve all FEES; (iii) the AGREEMENT may not be amended without BANK's express written consent; (iv) if applicable, ISO and/or MSP may not have access to MERCHANT's funds; and (v) BANK may not waive the foregoing requirements. FUNDS TRANSFER INSTRUCTIONS MERCHANT desires to effect settlement of credits and debits from MERCHAIVT's DESIGNATED ACCOUNT by means of ACH and/or wire transfer in conjunction with the processing of SALES transactions or SERVICES as anticipated by AGREEMENT. In accordance with this desire, MERCHANT authorizes BANK to initiate debit and credit entries to the DESIGNATED ACCOUNT (the details of which are set out herein and in the Merchant Application). MERCHANT agrees to maintain sufficient funds in DESIGNATED ACCOUNT to cover debit transactions. By signing this AGREEMENT, MERCHANT states that it has authority to agree to such transactions and that the DESIGNATED ACCOUNT indicated is a valid and legitimate account for the handling of these transactions. This authority is to remain in effect until BANK receives written notice from MERCHANT revoking it. This authorization is for the payment of SALES, returns and FEES, CHARGEBACKS, or any other sums owed between the PARTIES. MERCHANT also certifies that the appropriate authorizations are in place to allow MERCHANT to authorize this method of settlement. All changes to the identification of the DESIGNATED ACCOUNT under this authorization must be made in writing in accordance with the AGREEMENT. MERCHANT understands that if the information supplied as to the ABA Routing Number and Account Number of the DESIGNATED ACCOUNT is incorrect, and funds are incorrectly deposited, BANK will attempt to assist MERCHANT in the recovery of such funds but has no liability as to restitution of the same. BANK's assistance in recovering the funds, where available, will be billed to MERCHANT at BANK's current hourly rate for such work. MERCHANT acknowledges that the origination of ACH transactions to the DESIGNATED ACCOUNT must comply with the provisions of U.S. law. CARD BRAND. RULES NOTICE: This information is a summary of common CARD BRAND regulations; however card acceptance, processing and chargeback procedures are subject to change. Capitalized Terms not defined herein shall have the meaning ascribed to them in the CARD BRANDS' regulations. If there are any differences between the CARD BRANDS' regulations and these RULES, the CARD BRANDS' regulations will prevail in every instance. To the extent these RULES or the CARD BRANDS' regulations conflict with applicable local, state, or federal laws, rules, or regulations, such local, state, or federal laws, rules or regulations shall govern. The CARD BRANDS publish summaries of the regulations for merchants. Some of these summaries may be accessed at www.visa.com and www.mastercard.com, while AMERICAN EXPRESS and DISCOVER regulations may be accessed at www.mainstreamms.com/termsandconditions.asax. The AMERICAN EXPRESS OptBlue"" Program Merchant Operating Guide may be accessed at www.mainstreamms.com/termsandconditions.asDx. CARD BRAND CARD ACCEPTANCE PROCEDURES 1. Honor All CARDS: 1.1 MERCHANT shall honor all CARDS issued by a CARD BRAND, when presented in accordance with these RULES, for the purchase of goods or services by an authorized holder of CARD or in processing a request for credit resulting from such a transaction, unless MERCHANT provides TMS and BANK with a thirty (30) day written notice that it no longer wishes to accept either credit or debit cards, including check or prepaid cards (i.e., non -PIN based debit). If MERCHANT has provided such notice to TMS and BANK, upon the expiration of the thirty (30) day notice period, MERCHANT will no longer be required to accept such cards. 1.2 If a cardholder presents a VISA CARD that is in the MERCHANTS category of acceptance and that bears a mark representing another payment service: (i) MERCHANT must honor the cardholder's request if the cardholder indicates that the transaction is to be processed as a VISA transaction and (ii) MERCHANT may process the transaction as something other than a VISA transaction despite an initial indication by the cardholder that the transaction is to be processed as a VISA transaction, but only if the cardholder agrees that the transaction may be processed as something other than a VISA transaction. MERCHANT may not mislead the cardholder concerning what payment service or system will be used. These rules do not require MERCHANT to explain any loss of consumer rights if the transaction is not processed as a VISA transaction, but if MERCHANT provides any information on this topic, that information must be accurate. 1.3 PROHIBITIONS - A MERCHANT must not: A. Accept cardholder payments for previous Visa Card or Visa Electron Card charges incurred at the MERCHANT location; B. Require a cardholder to complete a postcard or similar device that includes the cardholder's account number, card expiration date, signature, or any other card account data in plain view when mailed; C. Add any surcharge to transactions, except as permitted by the RULES; D. Add any tax to transactions, unless applicable laws or regulations permit a MERCHANT to collect a tax. Any tax amount, if allowed, must be included in the transaction amount and not collected separately; E. Enter into interchange any transaction receipt for a transaction that was previously charged back and subsequently returned to the MERCHANT irrespective of cardholder approval. The MERCHANT may pursue payment from the customer outside the VISA system; F. Request or use an account number for any purpose other than as payment for its goods or services, except to support the Health Care Eligibility Service or VISA Activation and Load Service, as specified in VISA regulations; 201504 Mainstream Merchant Services, Inc. Merchant T&Cs Page 10 of 21 209 8fPl,F.il}ENTIAL G. Disburse funds in the form of travelers cheques, if the sole purpose is to allow the cardholder to make a cash purchase of goods or services from MERCHANT; H. Disburse funds in the form of cash, unless: 1) MERCHANT is dispensing funds in the form of travelers cheques, Visa TravelMoney Cards, or Foreign Currency. In this case, the transaction amount is limited to the value of the travelers cheques, Visa TravelMoney Card, or Foreign currency plus any commission or fee charged by the MERCHANT; or 2) MERCHANT is participating in the Visa Cash Back Service, as further specified in the VISA regulations. I. Accept a Visa Card or Visa Electron card for the purchase of Scrip; J. Accept a Visa electron Card for Manual Cash Disbursement; K. Accept a Visa TravelMoney Card for a Manual Cash Disbursement; L. Accept a card to collect or refinance an existing debt that has been deemed uncollectible by the merchant providing the associated goods or services. (Note: A transaction that represents a payment on an existing obligation must be identified by the appropriate indicator in the Authorization Request and Clearing Record.); M. Enter into interchange a transaction that represents collection of a dishonored check; N. Require a cardholder to waive his or her rights to dispute the transaction as a condition of the SALE; or O. Establish a minimum or maximum transaction amount as a condition for honoring a Visa Card or Visa Electron Card, except as permitted by the RULES. 2. Sales Transactions: 2.1 No SALE may be completed if cardholder (the duly authorized holder and user of CARD) fails to present his/her CARD to MERCHANT at time of SALE, except in the case of Card Not Present environments where MERCHANT has received written permission by TMS and BANK to do so. 2.2 IF USING AN ELECTRONIC DEVICE, MERCHANT MUST HAVE THE CARD SUCCESSFULLY READ BY A MAGNETIC STRIPE CARD READER/TERMINAL WITH PRINTER ATTACHED. If MERCHANT's terminal cannot successfully read the magnetic stripe, MERCHANT must imprint the card, even if it is a key entered transaction. MERCHANT must imprint the CARD on the same SALES DRAFT (a paper record evidencing the purchase of goods or services using a CARD) containing the remainder of the transaction information and the cardholder signature. Failure to obtain a signed and imprinted SALES DRAFT when a transaction is not captured by swiping through a magnetic stripe reader will expose MERCHANT to a CHARGEBACK on such a transaction regardless of the authorization that may or may not be received. 2.3 MERCHANT shall obtain the cardholder's signature on the SALES DRAFT, where required by the RULES. 2.4 Unless specifically permitted by TMS and BANK to the contrary, goods and services purchased must be delivered to cardholder at time of SALE. 2.5 MERCHANT shall not require cardholders to provide personal information (such as telephone number or address) as a condition for honoring a SALE, unless required by the RULES. 2.6 If MERCHANT receives BIN information from TMS and BANK, MERCHANT must not use such information for any reason other than to identify VISA debit category products at the point of sale, unless authorized by VISA. VISA BIN information is proprietary and confidential information belonging to VISA. MERCHANT must not disclose VISA BIN information to any third party without prior written permission from VISA. If MERCHANT uses an agent or Merchant Servicer, MERCHANT must include the foregoing provisions in its agreement or contract with such agent or Merchant Servicer. 3. SALES DRAFTS: 3.1 MERCHANT shall deliver to the cardholder, at the time of a SALE, a true, complete, and legible copy of the SALES DRAFT or suitable receipt evidencing a SALE involving use of CARD. 3.2 At a minimum, the following information must be included on the SALES DRAFT (additional information may be required by the RULES depending on the transaction): A. final four digits of CARD account number. MERCHANT is responsible for determining and complying with all applicable LAWS regarding CARD account number truncation requirements and CARD expiration date requirements for SALES DRAFTS; B. MERCHANT's d/b/a name; C. MERCHANTS city and state; D. amount of the SALE (including any applicable taxes or amount of adjustment or credit); E. date of the SALE; F. space for cardholder signature if applicable; G. transaction payment type; H. legend identifying the party to whom it will be delivered (i.e. merchant copy, customer copy); I. authorization code; J. clear imprint of the CARD unless successfully read by a magnetic stripe reader; and K. brief description of the goods or services sold, returned, or cancelled. 3.3 MERCHANT shall store all SALES DRAFTS and transaction records in the manner and timeframes required by the RULES. 3.4 MERCHANT shall not deposit SALES DRAFTS that it knows or should have known to be either fraudulent or not authorized by the cardholder. 4. Securitv Features: 4.1 In all cases, MERCHANT is required to examine the card security features prior to completing a SALE. 4.2 When an Electronic Cash Register ("ECR') or Electronic Draft Capture ("EDC") terminal reads the magnetic stripe on the CARD, MERCHANT must check the CARD account number on the terminal (if displayed) against the account number embossed on the 201504 Mainstream Merchant Services, Inc. Merchant TBCs Page 11 of 212 O OA111 lClENTIAL CARD or follow such other security check as is mandated by TMS and BANK from time to time. If the CARD is read with a terminal that displays the CARD number and the SALES DRAFT is printed, MERCHANT shall verify that the account number displayed on the terminal match the embossed numbers on the face of the CARD. In the event that they do not match, the SALE must not be completed. Failure to follow these checks and procedures will expose MERCHANT to CHARGEBACKS. 4.3 In the event that the terminal is programmed to require MERCHANT to key the last four (or more) digits of each CARD used for a SALE, and the terminal indicates that the numbers keyed are not the same as those present on the card, the SALE must not be completed. 4.4 In order to protect the integrity of the CARD BRANDS' systems, BANK may hold funds settled by MERCHANT in the event of a breach of AGREEMENT, irregular SALES activity, or receipt of detrimental financial information. 5. Authorizptlpn: 5.1 On all SALES, MERCHANT shall request an authorization for the total amount of the SALE and shall record the positive authorization response code on the SALES DRAFT prior to completing the SALE. If MERCHANT receives a negative authorization response, MERCHANT shall not complete the SALE and may receive further instructions from the authorization center. 5.2 MERCHANT may not, after receiving a negative response or decline on an authorization request: A. split the SALE amount into multiple transactions in order to obtain a valid authorization for each one, so that the separate transactions total the original dollar amount of the SALE; or B. attempt any further electronic or voice authorizations. 5.3 In the event that an unsigned CARD is presented at the point of sale, MERCHANT must request that cardholder provide proof of identification and sign the card before completing the SALE. Details of the identification provided must be placed on the SALES DRAFT unless prohibited by local law. In the event that the cardholder refuses to do so, the SALE must not be completed. 5.4 MERCHANT agrees to obtain authorization from the voice authorization center as required by the RULES. 6 Returned M,p.rchandise and Adiustments: 6.1 If MERCHANT agrees to credit a cardholder for any merchandise or service that was the subject of a SALE, MERCHANT must provide a Credit Transaction Receipt using the same CARD as in the original SALE. Such credit shall not exceed the original SALE amount. MERCHANT shall not make any cash refund on SALES. 6.2 MERCHANT may limit its acceptance of returned merchandise or establish a policy to make price adjustments for any SALE provided proper disclosure is made and purchased goods and service are delivered to the cardholder at the time of the SALE. 6.3 Proper disclosure means the words "NO REFUND," "EXCHANGE ONLY," or "IN STORE CREDIT ONLY" are printed in large letters near the signature line on all copies of the SALES DRAFT prior to obtaining the cardholder's signature on the SALES DRAFT. MERCHANT may stipulate other special circumstances or terms of the SALE on the SALES DRAFT. 6.4 For each credit transaction, MERCHANT must be able to provide TMS and BANK with evidence of the original purchase. 7. Cash Transaction: 7.1 MERCHANT shall not receive money from a cardholder and subsequently prepare a credit voucher for the purpose of depositing to the cardholder's account. 7.2 Cash disbursement by MERCHANT to a cardholder is not permitted unless you are a financial institution with written authorization from BANK and as specifically permitted by the RULES. Additionally, MERCHANT shall not make any cash advance to an employee, principal, or family member of MERCHANT, who is a cardholder. 7.3 MERCHANT will not accept SALES from cardholders where the primary purpose of the transaction is for the provision of working capital to business and not the purchase of goods and/or services from the business. 8. Use of Promotional Materials and Marks: 8.1 MERCHANT will adequately display promotional materials as required by the RULES or provided by TMS and BANK to inform the public that MERCHANT will honor CARDS. 8.2 MERCHANT shall prominently display the CARD BRANDS' Marks at or near all major public access points to inform the public that MERCHANT will honor CARDS. MERCHANT shall always display the Marks in their full color version. The MERCHANT must display the Marks upon acceptance of the CARDS. 8.3 MERCHANT shall not use the CARD BRAND's Marks for any other purpose without the express written consent of the CARD BRANDS. MERCHANTS who use the Marks shall obtain no interest in the Marks except the right to use them in accordance with the RULES. 8.4 All uses by MERCHANT of decals, signs, printed and broadcast materials, and other promotional materials must be in conformity with the requirements of the CARD BRANDS, SPONSORS, TMS and BANK. MERCHANT will not at any time do or cause to be done any act or deed in any way impairing or intended to impair TMS's, BANK's, CARD BRANDS', or SPONSOR's exclusive right, title, and interest in and to its respective protected Marks. 8.5 MERCHANT may use promotional materials only to indicate that CARDS are accepted for payment and shall not indicate, directly or indirectly, that MERCHANT has received endorsement of any goods or services other than the CARDS' services. 8.6 MERCHANT may not refer to the CARDS in stating eligibility for its products, services, or membership. 8.7 MERCHANT shall permit TMS, BANK, CARD BRANDS, and SPONSORS, at all reasonable times, to inspect the MERCHANT's use of the promotional materials and Marks. Should any materials so submitted fail to meet with TMS's, BANK'S, CARD BRANDS', or SPONSOR's approval or fail to comply with the RULES, for any reason whatsoever, the MERCHANT agrees to cease using such material. Neither TMS, BANK, CARD BRANDS, nor SPONSOR shall have any liability to MERCHANT relating to disapproval of use of such materials. 8.8 MERCHANT's right to use and display the Marks shall terminate upon termination of this Agreement. Upon termination, voluntary or involuntary, the MERCHANT shall immediately remove all Marks from all terminals and from any other display location maintained by such MERCHANT and shall immediately cease the use of all promotional materials using the Marks of CARD BRANDS. 201504 Mainstream Merchant Services, Inc. Merchant TBCs Page 12 of 21 211 CP�F4 I ENTIAL 02 9. ARDS Other than VISA. MASTERCARD. AMERICAN EXPRESS and DISCOVER: 9.1 ERCHANT is required to comply with the specific regulations, as set out in its agreements with CARD BRANDS other than VISA, MASTERCARD, AMERICAN EXPRESS, and/or DISCOVER with regard to the acceptance of cards issued by such CARD BRANDS. TMS and BANK are not responsible for the funding of such transactions. Further, TMS and BANK are not responsible for payment for SALES for any CARD BRANDS unless and until TMS and BANK have received payment for such SALES from the CARD BRANDS. CHARGEBACKS 10. General: 10.1 Failure to comply with the RULES will reduce TMS's and BANK's ability to reverse CHARGEBACKS and increase the likelihood of MERCHANT receiving a CHARGEBACK. 10.2 MERCHANT may be subject to a CHARGEBACK on SALES for a minimum period of 180 days, plus the period of any warranty or guarantee on goods and/or services sold by MERCHANT, from the date the SALE was entered into the CARD BRANDS' processing system. 10.3 TMS and BANK agree to mail all CHARGEBACK documentation to the address provided by MERCHANT. MERCHANT agrees to respond promptly to all CHARGEBACKS. If TMS and/or BANK elects, at their sole discretion, to take action on CHARGEBACKS after the CARD BRAND time limits have expired, such action shall be done at additional cost. 10.4 MERCHANT agrees that it will not re-deposit SALES that have been previously charged back and not represented. This restriction applies whether or not the cardholder consents to such activity. 10.5 MERCHANT agrees that if it receives a CHARGEBACK for an international cardholder, the MERCHANT is responsible for any currency conversion differences in the dollar amount. 11. CHARGEBACK Reasons: 11.1 MERCHANT should refer to the RULES for a complete list of CHARGEBACK reasons. 12. CHARGEBACK Monitorina Proarams: 12.1 Any MERCHANT location that exceeds a one percent (1%) CHARGEBACK to Interchange ratio for all incoming CHARGEBACKS for that location is considered an excessive chargeback merchant and may be subject to Visa and MasterCard's monitoring programs Merchants are responsible for monitoring their monthly chargeback percentage and developing chargeback reduction plans as required by Visa and MasterCard. Excessive CHARGEBACK activity for an unreasonable period of time may result in termination of this AGREEMENT. MERCHANT will pay TMS and/or BANK for any fine or charge levied by the CARD BRANDS on TMS and/or BANK or MERCHANT as a result of its chargeback activity. This section may be amended from time to time as a result of action by CARD BRANDS. 13. Other CARD BRAND Monijorino Proarams: 1 .1 If MERCHANT is identified by certain CARD BRAND monitoring programs, TMS's and BANK's ability to reverse CHARGEBACKS may be severely restricted. 13.2 Certain monitoring programs review the number of lost, stolen and counterfeit CARDS accepted by MERCHANT in its normal course of business and the percentage of CARDS used for SALES that were not read electronically by terminals or ECRB. The purpose of these programs is to reduce the use of lost, stolen and counterfeit CARDS. 13.3 In the event that MERCHANT is identified under these programs as exceeding the acceptable threshold value of such CARDS, MERCHANT may become liable for CHARGEBACKS and SALES on lost, stolen, or counterfeit CARDS regardless of the CARD ACCEPTANCE PROCEDURES followed, and AGREEMENT may be terminated by TMS and BANK. 14. CARD BRAND Reais;rplipn Proarams: 14.1 If MERCHANT is identified by certain CARD BRAND registration programs, TMS and/or BANK will take the necessary steps to register the merchant. MERCHANT will pay TMS and BANK for any fine or charge levied by the CARD BRANDS on TMS, BANK, or MERCHANT as a result of the registration program including but not limited to one-time registration fees, ongoing registration fees and non-compliance fees. This section may be amended from time to time as a result of action by CARD BRANDS. UNIQUE BUSINESS REQUIREMENTS 15. Card Not Present Merchants: 15.1 MERCHANT may not accept Card Not Present SALES unless AGREEMENT specifically refers to Card Not Present SALES. If this is not the case, MERCHANT should contact TMS and BANK if they wish to accept Card Not Present SALES and provide descriptions of product types and marketing methods. TMS and BANK may refuse MERCHANT permission to accept Card Not Present SALES. 15.2 If MERCHANT is specifically authorized by TMS and BANK to accept Card Not Present SALES, no SALE shall be submitted for processing prior to the shipping of the product or the provision of services purchased by the cardholder. 15.3 Card Not Present SALES do not require the cardholder's signature on the SALES DRAFT. MERCHANT is required to obtain the valid dates for each CARD used for a SALE. The expiration date must be submitted as part of the Authorization inquiry. 15.4 If MERCHANT supplies goods and/or services under a Pre-Authorization Order ("PO"), it shall not charge a cardholder for goods after receiving notice from a cardholder that the authorization for goods or services is canceled. 15.5 The receipt of a valid Authorization does not protect MERCHANT from CHARGEBACKS on SALES for the Unauthorized Purchaser reason code. The shipping documents indicating the address the goods were shipped to and a signature of an individual (even cardholder) will not normally be sufficient to reverse an Unauthorized Purchaser reason code. 15.6 MERCHANT assumes the risk associated with accepting Card Not Present SALES transactions. 15.7 Card Not Present MERCHANTS are encouraged to investigate the CHARGEBACK protection attributes of the various Address Verification Services and Card Verification Value Services available from CARD BRANDS. 15.8 MERCHANT, or its agent, shall implement and maintain all of the security requirements specified in PCI. MERCHANT shall immediately notify TMS and BANK of the use an agent. MERCHANT shall immediately notify TMS and BANK of any suspected or confirmed loss or theft of material or records that contain account information and both: 201504 Mainstream Merchant Services, Inc. Merchant TBCs Page 13 of 21 212 OT C,pJN�ENTIAL A. demonstrate its ability to prevent future loss or theft of account or transaction information; and B. allow the CARD BRANDS, or an acceptable independent third party, to verify this ability by conducting a security review. 15.9 Electronic Commerce Merchants (VISA): A. VISA makes the 3-D Authentication system available to Electronic Commerce Merchants as a way to reduce fraud in Internet Transactions. Electronic Commerce Merchants may elect to implement 3-D Secure. Electronic Commerce Merchants that process 3-D Secure Transactions must comply with requirements specified in the: (i) VISA Operating Regulations; (ii) the VISA 3-D Secure: Merchant Implementation Guide and (iii) VISA Cardholder Information Security Program. B. A web site operated by an Electronic Commerce Merchant must contain all of the following information: (i) a complete description of the goods or services offered; (ii) the merchant's returned merchandise and refund policy; (iii) the merchant's customer service contact, including electronic mail addresses and/or telephone number; (iv) the transaction currency; (v) any export or legal restrictions (if known); (vi the merchant's delivery policy; (vii) the address of the merchant's permanent establishment; viii) the merchant's consumer data privacy policy; and (ix) the security method for the transmission of payment data. C. Electronic Commerce Merchants must offer cardholders a secure transaction method, such as: (i) Secure Sockets Layer (SSL), or (ii) 3-D Secure. 16. Travel and Entertainment ("T&E"' Merchants: 16.1 A MERCHANT whose primary function is to provide travel related services shall be referred to as a Travel & Entertainment ("T&E") MERCHANT. These include but are not limited to car rental, lodging, and central reservation services. 16.2 A T&E MERCHANT may process delayed or amended charges if the cardholder has consented to be liable for those charges. These charges may NOT include charges for loss, theft, or damage. 17. T&E Services: 17.1 A T&E MERCHANT may participate in any of the following VISA T&E Services: A. Priority Check -Out Service B. T&E Advance Deposit Service C. T&E Cash Disbursement Service D. VISA Reservation Service RULES which apply to the VISA T&E Services are available upon request. 17.2 Visa Reservation Service: Any MERCHANT who accepts CARDS to guarantee reservations must do so in accordance with the following requirements: A. MERCHANT must accept all VISA CARDS; B. MERCHANT will obtain the cardholder's account number, expiration date, and name embossed on the CARD. MERCHANT must quote to cardholder the rate of reserved accommodation, MERCHANT name and address, and the Confirmation Code advising that it be retained. Advise the cardholder that if he/she has not checked in by checkout time the following day after his/her scheduled arrival date or the reservation was not properly canceled, the cardholder will be billed for one night's lodging plus applicable taxes. If requested, the MERCHANT will provide a written confirmation with the above information including the VISA Reservation Service provisions relating to the cardholder's obligation, and any other reservation details; C. MERCHANT must accept all cancellations prior to the specified time. The MERCHANT must not require more than seventy-two (72) hours cancellation notification prior to the scheduled arrival date. But, if the cardholder makes the reservation within seventy-two (72) hours of the scheduled arrival date, the cancellation deadline must be no earlier than 6:00 p.m. on the arrival date. If the MERCHANT requires that the cardholder cancel before 6:00 p.m. on the arrival date, the MERCHANT must mail the cancellation policy to the cardholder; D. if the reservation is properly canceled, MERCHANT must provide a cancellation code and advise the cardholder to retain it. If requested, MERCHANT must mail a confirmation of cancellation that includes the following: cardholder name, account number, card expiration date, cancellation code, and details related to the canceled reservation; E. if cardholder has not claimed or canceled the accommodation by the specified time, the room(s) must be held available in accordance with the reservation until checkout time the following day. MERCHANT may then complete a SALES DRAFT for one night's lodging plus applicable tax, indicating the cardholder's account number, expiration date, and name embossed on the CARD and the words "No Show" on the cardholder signature line. MERCHANT must obtain an authorization code for the no show transaction; and F. if guaranteed accommodations are unavailable, MERCHANT must provide cardholder with comparable accommodations for one night at another establishment, transportation to the location of the alternative establishment, and if requested, provide cardholder with a three (3) minute telephone call and message forwarding to the alternate establishment. These services shall be provided at no cost to cardholder. 18. Pre -authorized Health Care Trans#,ctipns: 18.1 MERCHANTS accepting Pre -authorized Health Care Transactions must have the cardholder complete an order form containing the following: A. a request for the services to be charged to the cardholder's account; B. assignment of insurance benefits to the MERCHANT; C. authorization for the MERCHANT to charge the cardholder's account for only that portion of the bill subsequent to MERCHANTs receipt of any applicable insurance payment; D. duration of time, not to exceed one (1) year, for which permission is granted; and E. if the Pre -authorized Health Care Transaction is renewed, the cardholder must provide an updated order form. 18.2 MERCHANT must: 201504 Mainstream Merchant Services, Inc. Merchant T&Cs Page 14 of 21 213 OQQN�4ENTIAL A. retain a copy of the order form during the period it is in effect; B. provide a copy of the order form upon TM S's and/or BANK's request; C. type or print the words "Pre -authorized Health Care" on the signature line of the SALES DRAFT; and D. submit a SALES DRAFT within ninety (90) days of the service date and request authorization for the amount due upon receipt of notice of adjudication from the cardholder's insurance company. 18.3 MERCHANT must not complete a Pre -authorized Health Care Transaction after receiving a notice of cancellation from cardholder, TMS, BANK, or if the MERCHANT receives a decline response. 19. Recurrina Transactions: 19.1 MERCHANT will not accept recurring SALES transactions where the delivery of, provision of, or billing for, goods or services is performed on a periodic basis ("RECURRING TRANSACTIONS") without the express written consent of TMS and BANK and without following the rules stated below. 19.2 MERCHANT must obtain from the cardholder a completed Order Form containing a written request for the goods or services to be charged to the cardholder's CARD. The Order Form must include the transaction amount (unless the RECURRING TRANSACTIONS are for varying amounts), the frequency of the recurring charges, and the duration of time for which the cardholder's permission is granted. The cardholder signature (including electronic signature or other similar authentication) must be effective under applicable law. 19.3 MERCHANT must retain a copy of the Order Form for the duration of the RECURRING SERVICES and provide it to TMS and BANK upon request. 19.4 Upon completion of the SALES DRAFT, MERCHANT should write the words "Recurring Transaction" on the signature line. 19.5 When a RECURRING TRANSACTION is renewed, MERCHANT must obtain an updated Order Form (as set out above) from the cardholder. 19.6 For an Electronic Commerce Transaction, include the frequency and duration of the RECURRING TRANSACTION, as agreed to by the cardholder, on the SALES DRAFT and provide a simple and easily accessible online cancellation procedure, if the cardholder's request for goods or services was initially accepted online. 19.7 For RECURRING TRANSACTIONS, MERCHANT must not: A. include partial payment for goods or services purchased in a single transaction; B. include additional finance charges on a RECURRING TRANSACTION; C. complete a RECURRING TRANSACTION if it does not receive an Authorization or if it receives a cancellation notice from the cardholder; or D. request or use a cardholder account number for purposes other than as payment for its goods or services. 19.8 For RECURRING TRANSACTIONS of varying amounts, the MERCHANT must: A. on the Order Form, allow the cardholder to specify a minimum and a maximum transaction amount to be charged; B. inform the cardholder of his/her right to receive, with at least ten (10) days notice before the transaction date, a written notification of the amount and date of the next charge; and C. allow the cardholder to choose to receive notice in any of the following ways: (i) for every charge; (ii) when the transaction amount is outside of the specified minimum and maximum amount range; and (iii) when the transaction amount will differ from the most recent charge by more than an agreed upon amount. 20. Employee Purchases: 20.1 MERCHANT is prohibited from conducting Cash Advances, Card Sales or returns for goods or services with the MERCHANT's owners, officers or employees using such individual's personal Card(s), except for bona fide Card Transactions in the ordinary course of MERCHANT's business. MERCHANT is responsible for the actions and omissions of MERCHANTS principals, officers, employees and agents, including any fraud committed by, and/or any intentional or negligent acts or omissions by, any owner, officer or employee of MERCHANT. MISCELLANEOUS RULES 21. Liabilitv of MERCHANT: 21.1 MERCHANT shall be liable for all actions of its employees and agents and shall insure that they comply with the RULES and all LAWS. 22. Suuoly of Ip(ormation: 22.1 MERCHANTS must submit all information requested by the CARD BRANDS, TMS, and BANK, including, but not limited to, lists and mailing addresses of terminals. 22.2 A MERCHANT shall not sell, purchase, provide, or exchange account number information in the form of transaction receipts, carbon copies of transaction receipts, mailing lists, tapes, or other media obtained by reason of a SALE to any third party other than to the MERCHANT's agents for the purpose of assisting the MERCHANT in its business; or to the CARD BRANDS, TMS and/or BANK; or pursuant to a government request. ATM/DEBIT NETWORK RULES NOTICE: The following summary of NETWORK RULES only applies to ATM/Debit transactions that are processed by a Cardholder entering a PIN. Such ATM/Debit transactions are subject to the rest of the Agreement, as applicable, except to the extent the terms of the NETWORK RULES summary directly conflicts with another provision of this Agreement, in which case, the terms of this NETWORK RULES summary will control. The following information is a summary of common rules that are specific to ATM/Debit Network transactions; however card acceptance, processing and chargeback procedures are subject to change. If there are any differences between the NETWORKS' regulations and these Rules, the NEWORKS' 201504 Mainstream Merchant Services, Inc. Merchant TBCs Page 15 of 21 CONN INITIAL214o?L 4 regulations will prevail in every instance. To the extent these RULES or the NETWORKS' regulations conflict with applicable local, state, or federal laws, rules, or regulations, such local, state, or federal laws, rules or regulations shall govern. ATMIDEBIT NETWORK CARD ACCEPTANCE PROCEDURES 1. Discrifninajion: 1.1 MERCHANT shall not require cardholders to provide personal information (such as telephone number or address) as a condition for honoring a CARD, unless required by the RULES. 1.2 MERCHANT may not require or request the cardholder's signature or any other means of verifying the cardholder's identity. 1.3 MERCHANT shall place the PIN Entry Device in an area accessible by all cardholders and that can reasonably prevent others from observing the entered PIN. 1.4 MERCHANT shall not request or require the cardholder to provide or disclose their PIN in any oral or written manner to the MERCHANT. 2. SALES DRAFTS: 2.1 MERCHANT shall deliver to the cardholder at the time of a SALE a true and completed copy of the SALES DRAFT evidencing a SALE involving use of a CARD. The SALES draft must comply with the requirements of all RULES, and LAWS. 2.2 The following information must be included on the SALES DRAFT: (i) CARD account number; (ii) MERCHANT's DBA name; (iii) MERCHANT's city and state; (iv) amount of SALE; and (v) SALE date. 2.3 A SALES DRAFT shall be made available to the cardholder at each terminal. 2.4 MERCHANT may not require or request the cardholder to divulge the PIN belonging to that cardholder. 2.5 MERCHANT shall not impose any fee or charge without the prior written consent of TMS and BANK. If surcharging is approved by TMS and BANK, it must be a separate line item on the SALES draft and must be in compliance with all NETWORKS' rules, and LAWS. 2.6 MERCHANT shall not process any SALE if the terminal does not receive an authorization code. When a denial to an authorization request is received, the POS transaction shall not be completed, unless completed as a MERCHANT Store and Forward Transaction or Resubmission Transaction. 2.7 A SALE shall not be completed if the MERCHANT knows or should know that the SALE is fraudulent or not authorized by the cardholder. 2.8 A SALE may be reversed or voided electronically, but only if such reversal/void is entered prior to midnight of the calendar day on which the SALE was initiated. To effect a reversal or void, cardholder must re-enter the PIN, the magnetic stripe reader must read the card, and MERCHANT must transmit the trace number and the exact dollar amount of the SALE to be reversed or voided. A reversal or void must be initiated at the same MERCHANT identified on the SALES draft at which the original SALE was initiated, but need not be initiated at the same POS terminal. 2.9 All returns shall be processed in accordance with the MERCHANT's normal procedures, except that MERCHANT or cardholder shall not attempt to reverse a previously approved POS Transaction, unless otherwise permitted in accordance with the rules. 2.10 Any SALES known by the MERCHANT to be erroneous should be canceled and re -billed, in the cardholder's presence. 2.11 Balance inquiries may be performed only by the cardholder at a cardholder -operated terminal and shall at all times require the cardholder to enter the PIN and use the magnetic stripe reader. 3. SALES DRAFTS - Distribution and Storaae of Information: 3.1 MERCHANT shall not disclose a cardholder's account information or any other personal information to third parties other than to MERCHANT's agents for the purpose of completing the SALE or as specifically required by law or by the RULES. 3.2 MERCHANT shall store in a limited access area for at least one (1) year after the date of SALES all transaction records and MERCHANT shall make and retain for at least two (2) years the original or legible microfilm copies of both sides of all transaction records; Prior to discarding, MERCHANT shall destroy or make unreadable all material containing cardholder account numbers. 3.3 There are no voice authorizations for transactions and no manually imprinted SALES drafts. CHARGEBACKS 4. General: 4.1 MERCHANT agrees to pay TMS and/or BANK for any NETWORK fees, fines or charges imposed on MERCHANT or TMS and BANK. Such reimbursement will be accomplished by the debit of the sum(s) involved from the MERCHANT's DESIGNATED ACCOUNT. 4.2 Failure to comply with the RULES will increase MERCHANT's exposure to CHARGEBACKS. 4.3 TMS agrees to mail all CHARGEBACK documentation to MERCHANT promptly to MERCHANT's address shown on AGREEMENT. MERCHANT agrees to respond promptly to all CHARGEBACKS. If TMS and BANK elect, at their discretion, to take action on CHARGEBACKS after the NETWORK time limits have expired, such action shall be done at additional cost. Upon request of NETWORK, TMS, or BANK, the MERCHANT will retrieve and forward to TMS, within the time frame required by the NETWORKS, either the original or a readable copy of the Terminal journal tape or duplicate transaction receipt for the transaction in question and, if requested, will give the NETWORK such information from such transaction records as it requests by telephone. The MERCHANT will, on request of the NETWORK, cooperate fully with the NETWORK and the card -issuing participant in order that the participant may comply with the error resolution procedures. 5. Monitorina Programs: 5.1 If certain monitoring programs identify MERCHANT, TMS's and BANK's ability to reverse CHARGEBACKS can be severely restricted. 5.2 Certain Monitoring Programs review the number of Lost, Stolen and Counterfeit CARDS accepted by MERCHANT in its normal course of business. The purpose of these Programs is to reduce the use of Lost, Stolen and Counterfeit CARDS. 201504 Mainstream Merchant Services, Inc. Merchant TBCs Page 16 of 21 �O�IIQENTIAL 2150:44 5.3 In the event that MERCHANT is identified under these PROGRAMS as exceeding the acceptable threshold value of such CARDS, MERCHANT may become liable for CHARGEBACKS and SALES on Lost, Stolen, or Counterfeit CARDS regardless of the CARD ACCEPTANCE PROCEDURES followed, and AGREEMENT may be terminated on notice by TMS and BANK. OPERATIONAL REQUIREMENTS 6. MERCHANT Npme and Address: 6.1 All forms submitted to TMS and BANK must bear both the corporate and "Doing Business As" ("DBA") name. 7. Eapiprrlent: 7.1 A MERCHANT shall take all necessary steps to insure that all POS Terminals and PIN Pads operated in all of its locations: A. are placed in an area accessible by all cardholders; B. are available for use whenever open for business; C. will function with a minimum of error meeting all applicable technical specifications and security regulations; and D. will require the cardholder to enter the cardholder's PIN at or near the check out location when initiating a POS Transaction. 7.2 A PIN pad or PIN processor must meet the ANSI standard format X9.8, 1995 or newer requirements, as they are released. 7.3 Terminals must have a Magnetic Stripe reader capable of reading Track 2 on the CARDS. 7.4 PINS used in conjunction with any store and forward transaction or MERCHANT resubmission must be encrypted and stored within a Tamper Resistant Security Module. 7.5 If MERCHANT's authorization system is capable of store and forward, it must comply with the NETWORKS's rules and regulations regarding this capability. TMS, BANK, the Issuer, and the NETWORKS shall not be liable for any losses suffered by a MERCHANT arising from the use of the store and forward function. 7.6 A PIN must never be logged in any form as a function of software either in the clear or encrypted. 8. Left CARDS: 8.1 CARDS that are inadvertently left at a MERCHANT location must be held under dual control during the time they are retained. 8.2 CARDS inadvertently left at a MERCHANT location may be returned to the cardholder by MERCHANT under the following conditions: (i) the CARD was inadvertently left by the cardholder at an on -premise location, and (ii) the cardholder requests the CARD within one business day, and (iii) the cardholder provides two forms of current identification, one of which is a photo identification. 8.3 If the cardholder has not requested the CARD within one business day, the CARD should be destroyed by cutting it in half through the stripe and processed in the normal manner. 9. Security Featurgs: 9.1 TMS, BANK, NETWORK or their designated agent, on behalf of itself or others, shall have the right to inspect MERCHANT's security systems and procedures from time to time. TMS DISCOVER AGREEMENT Important Note: BANK is not a party to the TMS Discover Agreement and has no responsibility under it. MERCHANT acknowledges and agrees that BANK and its affiliates have no obligation or liability whatsoever for: (1) products or services provided under the TMS Discover Agreement, or (2) any actions or omissions of TMS or ISO with respect to the TMS Discovert Agreement. MERCHANT agrees that any claims or disputes arising out of the foregoing will be resolved without involvin BANK and that BANK is entitled to rely on MERCHANT's agreements in,this paragraph. THIS Agreement ("TMS DISCOVER AGREEMENT'), by and between TSYS MERCHANT SOLUTIONS, LLC ("TMS"), ISO, and MERCHANT, shall become effective on the date executed or approved by a duly authorized representative of TMS. TMS, ISO, and MERCHANT shall be collectively known hereafter as the "PARTIES." WHEREAS, First National Bank of Omaha, ISO, and MERCHANT are PARTIES to a Merchant Transaction Processing Agreement (together with its addenda, attachments, and schedules shall be hereinafter known as the "AGREEMENT'); and WHEREAS, TMS has a relationship with the Discover Network ("DISCOVER"); and WHEREAS, the PARTIES desire to enter into this TMS DISCOVER AGREEMENT under which TMS and ISO will provide payment processing services as to DISCOVER transactions. NOW THEREFORE, in consideration of the mutual promises made herein, and other valuable consideration, receipt and sufficiency of which are hereby acknowledged, the PARTIES do hereby agree as follows: 1. Terms set forth herein, which are typed in all capitalized letters and not defined herein, shall have the same meaning as set out in the AGREEMENT. 2. The terms of the AGREEMENT, including the Merchant Application, are hereby incorporated by reference into this TMS DISCOVER AGREEMENT. References to BANK under the AGREEMENT shall be replaced with references to TMS. References to VISA, Inc. ("VISA") and MasterCard International, Inc. ("MASTERCARD") under the AGREEMENT shall be replaced with reference to DISCOVER. DISCOVER shall replace references to VISA and MASTERCARD under the definition of "CARD BRANDS" under the AGREEMENT. Financial service cards issued by DISCOVER shall replace references to financial services cards issued by VISA and MASTERCARD under the definition of "CARDS" under the AGREEMENT. Sales transactions using DISCOVER CARDS shall replace references to Sales transactions using VISA and MASTERCARD cards under the definition of "SALES" under the AGREEMENT. The rules and regulations of DISCOVER, which may be accessed at www.tsystransactionsummary.com, shall replace references to the rules and regulations of VISA and MASTERCARD under the definition of "RULES" under the AGREEMENT. MERCHANT agrees to comply with and assure that Merchant Providers comply with the Discover Information Security and Compliance ("DISC") (found at hftD://www.discovernetwork.com/fraudsecuritv/disc.html). 201504 Mainstream Merchant Services, Inc. Merchant TBCs Page 17 of 21 216 CP�4 FI ENTIAL 02 3. MERCHANT agrees to pay TMS and ISO the FEES related to DISCOVER as set out on the Merchant Application. 4. This TMS DISCOVER AGREEMENT, together with any amendments, attachments, exhibits, schedules, and the terms of the AGREEMENT as modified and incorporated herein, constitutes the entire agreement between the PARTIES as to transaction processing for DISCOVER, and any other representations, inducements, promises, or agreements not contained herein shall be of no force and effect as to transaction processing. 5. Except as stated, ISO, TMS, and MERCHANT reaffirm the obligations of each as they are contained in the terms of the AGREEMENT as incorporated hereunder. AMERICAN EXPRESS OPTBLUW'm PROGRAM AGREEMENT Important Note: BANK is not a party to the American Express OptBlue"Program Agreement and has no responsibility under it. MERCHANT acknowledges and agrees that BANK and their affiliates have no obligation or liability whatsoever for: (1) AMERICAN EXPRESS transactions whether under the American Express OptBlue Program Agreement, the Merchant Transaction Processing Agreement or otherwise; or (2) any actions or omissions of ISO or AMERICAN EXPRESS. MERCHANT agrees that any claims or disputes arising out of the foregoing will be resolved without involving BANK and that BANK is entitled to rely on MERCHANT's agreements In this, paragraph. THIS Agreement ("AMERICAN EXPRESS OPTBLUE PROGRAM AGREEMENT'), by and between ISO and MERCHANT, shall become effective on the date executed or approved by a duly authorized representative of ISO. ISO and MERCHANT shall be collectively known hereafter as the "Parties. WHEREAS, First National Bank of Omaha, ISO, and MERCHANT are PARTIES to a Merchant Transaction Processing Agreement (together with its addenda, attachments, and schedules shall be hereinafter known as the "AGREEMENT'); and WHEREAS, TSYS Acquiring Solutions, LLC has a relationship with American Express Travel Related Services Company, Inc. ("AMERICAN EXPRESS"); and WHEREAS, the PARTIES desire to enter into this AMERICAN EXPRESS OPTBLUE PROGRAM AGREEMENT under which ISO will provide payment processing services as to AMERICAN EXPRESS transactions. NOW THEREFORE, in consideration of the mutual promises made herein, and other valuable consideration, receipt and sufficiency of which are hereby acknowledged, the PARTIES do hereby agree as follows: Terms set forth herein, which are typed in all capitalized letters and not defined herein, shall have the same meaning as set out in the AGREEMENT. The terms of the AGREEMENT, including the Merchant Application, are hereby incorporated by reference into this AMERICAN EXPRESS OPTBLUE PROGRAM AGREEMENT, except that no references to BANK under the AGREEMENT shall apply herein. MERCHANT agrees to pay ISO the FEES related to AMERICAN EXPRESS as set out on the Merchant Application. The following terms and conditions apply to MERCHANT's participation in the AMERICAN EXPRESS OptBluesm Program ("AMERICAN EXPRESS CARD ACCEPTANCE"): MERCHANT's participation in AMERICAN EXPRESS CARD ACCEPTANCE is subject to the approval of AMERICAN EXPRESS. MERCHANT authorizes ISO and/or its affiliates to submit AMERICAN EXPRESS SALES To, and receive settlement on such SALES from, AMERICAN EXPRESS on behalf of MERCHANT. MERCHANT agrees that ISO may disclose to AMERICAN EXPRESS information regarding MERCHANT and MERCHANT's SALES to AMERICAN EXPRESS, and that AMERICAN EXPRESS may use such information to perform its responsibilities in connection with AMERICAN EXPRESS CARD ACCEPTANCE, promote AMERICAN EXPRESS, perform analytics and create reports, and for any other lawful business purposes, including commercial marketing communications purposes within the parameters of AMERICAN EXPRESS CARD ACCEPTANCE, and important transactional or relationship communications from AMERICAN EXPRESS. AMERICAN EXPRESS may use the information about MERCHANT obtained in the AGREEMENT at the time of setup to screen and/or monitor MERCHANT in connection with AMERICAN EXPRESS marketing and administrative purposes. MERCHANT agrees it may receive messages from AMERICAN EXPRESS, including important information about AMERICAN EXPRESS products, services, and resources available to its business. These messages may be sent to the mailing address, phone numbers, email addresses or fax numbers of MERCHANT. MERCHANT may be contacted at its wireless telephone number and the communications sent may include autodialed short message service (SMS or "text") messages or automated or prerecorded calls. MERCHANT agrees that it may be sent fax communications. MERCHANT may opt -out of receiving future commercial marketing communications from AMERICAN EXPRESS by contacting ISO. Note that MERCHANT may continue to receive marketing communications while AMERICAN EXPRESS updates its records to reflect this choice. Opting out of commercial marketing communications will not preclude MERCHANT from receiving important transactional or relationship messages from AMERICAN EXPRESS. MERCHANT acknowledges that it may be converted from AMERICAN EXPRESS CARD ACCEPTANCE to a direct relationship with AMERICAN EXPRESS if and when its SALES volumes exceed the eligibility thresholds for AMERICAN EXPRESS CARD 201504 Mainstream Merchant Services, Inc. Merchant TBCs Page 18 of 212 7 OCppIF�gENTIAL ACCEPTANCE. If this occurs, upon such conversion, (i) MERCHANT will be bound by AMERICAN EXPRESS' then -current Card Acceptance Agreement; and (ii) AMERICAN EXPRESS will set pricing and other fees payable by MERCHANT. MERCHANT shall not assign to any third party any payments due to it under AMERICAN EXPRESS CARD ACCEPTANCE, and all indebtedness arising from SALES will be for bona fide sales of goods and services (or both) at its business locations and free of liens, claims, and encumbrances other than ordinary sales taxes; provided, however, that the MERCHANT may sell and assign future SALES receivables to ISO, its affiliated entities and/or any other cash advance funding source that partners with ISO or its affiliated entities, without consent of AMERICAN EXPRESS. Notwithstanding the foregoing, ISO prohibits MERCHANT from selling or assigning future SALES receivables to any third party. Notwithstanding anything in the AGREEMENT to the contrary, AMERICAN EXPRESS shall have third -party beneficiary rights, but not obligations, to the terms of the AGREEMENT applicable to AMERICAN EXPRESS CARD ACCEPTANCE to enforce such terms against MERCHANT. MERCHANT may opt out of accepting AMERICAN EXPRESS at any time without directly or indirectly affecting its rights to accept other CARD BRANDS. ISO shall have the right to terminate MERCHANT'S participation in AMERICAN EXPRESS CARD ACCEPTANCE immediately upon written notice to MERCHANT (i) if MERCHANT breaches any of the provisions of this AMERICAN EXPRESS OPTBLUE PROGRAM AGREEMENT or any other terms of the AGREEMENT applicable to AMERICAN EXPRESS CARD ACCEPTANCE, or (ii) for cause or fraudulent or other activity, or upon AMERICAN EXPRESS' request. In the event MERCHANT's participation in AMERICAN EXPRESS CARD ACCEPTANCE is terminated for any reason, MERCHANT must immediately remove all AMERICAN EXPRESS branding and marks from MERCHANT's website and wherever else they are displayed. MERCHANT'S refund policies for AMERICAN EXPRESS SALES must be at least as favorable as its refund policy for purchase on any other CARD BRAND, and the refund policy must be disclosed to cardholders at the time of purchase and in compliance with LAWS. MERCHANT may not bill or attempt to collect from any cardholder for any AMERICAN EXPRESS SALE unless a CHARGEBACK has been exercised, MERCHANT has fully paid for such CHARGEBACK, and it otherwise has the right to do so. MERCHANT must accept AMERICAN EXPRESS as payment for goods and services (other than those goods and services prohibited by this AMERICAN EXPRESS OPTBLUE PROGRAM AGREEMENT, the AGREEMENT, or the RULES) sold, or (if applicable) for charitable contributions made at all of its business locations and websites, except as expressly permitted by state statute. MERCHANT is jointly and severally liable for the obligations of MERCHANT's business locations and websites under the AGREEMENT. In the event that MERCHANT or ISO is not able to resolve a Claim against AMERICAN EXPRESS, or a Claim against ISO or any other entity that AMERICAN EXPRESS has a right to join in resolving a Claim, this section explains how Claims can be resolved through arbitration. MERCHANT or AMERICAN EXPRESS may elect to resolve any Claim by individual, binding arbitration. Claims are decided by a neutral arbitrator. If arbitration is chosen by any party, neither MERCHANT nor ISO nor AMERICAN EXPRESS will have the right to litigate that Claim in court or have a jury trial on that Claim. Further, MERCHANT, ISO, and AMERICAN EXPRESS will not have the right to participate in a representative capacity or as a member of any class pertaining or be a named party to a class-action with respect to any Claim for which any party elects arbitration. Arbitration procedures are generally simpler than the rules that apply in court, and discovery is more limited. The arbitrator's decisions are as enforceable as any court order and are subject to very limited review by a court. Except as set forth below, the arbitrator's decision will be final and binding. Other rights MERCHANT, ISO, or AMERICAN EXPRESS would have in court may also not be available in arbitration. i. Initiation of Arbitration. Claims will be referred to either JAMS or AAA, as selected by the party electing arbitration. Claims will be resolved pursuant to this Arbitration Agreement and the selected organization's rules in effect when the Claim is filed, except where those rules conflict with the AGREEMENT. Contact JAMS or AAA to begin an arbitration or for other information. Claims may be referred to another arbitration organization if all parties agree in writing, or to an arbitrator appointed pursuant to section 5 of the Federal Arbitration Act, 9 U.S.C. §§ 1-16 (FAA). Any arbitration hearing that MERCHANT attends shall take place in New York, New York unless all parties agree to an alternate venue. ii. Limitations on Arbitration. If any party elects to resolve a Claim by arbitration, that Claim will be arbitrated on an individual basis. There will be no right or authority for any Claims to be arbitrated on a class action basis or on bases involving Claims brought in a purported representative capacity on behalf of the general public, other merchants or other persons or entities similarly situated. The arbitrator's authority is limited to Claims between MERCHANT, ISO, and AMERICAN EXPRESS. Claims may not be joined or consolidated unless all parties to this agreement agree in writing. An arbitration award and any judgment confirming it will apply only to the specific case brought by MERCHANT, ISO or AMERICAN EXPRESS and cannot be used in any other case except to enforce the award as between MERCHANT, ISO and AMERICAN EXPRESS. This prohibition is intended to, and does, preclude MERCHANT from participating in any action by any trade association or other organization against AMERICAN EXPRESS. Notwithstanding any other provision and without waiving the right to appeal such decision, if any portion of these Limitations on Arbitration is deemed invalid or unenforceable, then the entire Arbitration provision (other than this sentence) will not apply. iii. Previously Filed Claims/No Waiver. MERCHANT, ISO, or AMERICAN EXPRESS may elect to arbitrate any Claim that has been filed in court at any time before trial has begun or final judgment has been entered on the Claim. MERCHANT, ISO, or AMERICAN EXPRESS may choose to delay enforcing or to not exercise rights under this arbitration provision, including the right to elect to arbitrate a Claim, without waiving the right to exercise or enforce those rights on any other occasion. For the avoidance of any 201504 Mainstream Merchant Services, Inc. Merchant TBCs Page 19 of 21 C NFIDENTIAL 218 0224 confusion, and not to limit its scope, this section applies to any class-action lawsuit relating to the "Honor All Cards," "non- discrimination," or "no steering" provisions of the American Express Merchant Regulations, or any similar provisions of any prior American Express Card acceptance agreement, that was filed against AMERICAN EXPRESS prior to the effective date of the AGREEMENT. iv. Arbitrator's Authority. The arbitrator shall have the power and authority to award any relief that would have been available in court, including equitable relief (e.g., injunction, specific performance) and cumulative with all other remedies, shall grant specific performance whenever possible. The arbitrator shall have no power or authority to alter the AGREEMENT or any of its separate provisions, including this section, nor to determine any matter or make any award except as provided in this section. v. Split Proceedings for Equitable Relief. MERCHANT, ISO, or AMERICAN EXPRESS may seek equitable relief in aid of arbitration' prior to arbitration on the merits to preserve the status quo pending completion of such process. This section shall be enforced by any court of competent jurisdiction, and the party seeking enforcement shall be entitled to an award of all reasonable attorneys' fees and costs, including legal fees, to be paid by the party against whom enforcement is ordered. vi. Small Claims. AMERICAN EXPRESS shall not elect to use arbitration under this section for any Claim MERCHANT properly files in a small claims court so long as the Claim seeks individual relief only and is pending only in that court. vii. Governing Law/Arbitration Procedures/Entry of Judgment. This arbitration section is made pursuant to a transaction involving interstate commerce and is governed by the FAA. The arbitrator shall apply New York law and applicable statutes of limitations and shall honor claims of privilege recognized by law. The arbitrator shall apply the rules of the arbitration organization selected, as applicable to matters relating to evidence and discovery, not the federal or any state rules of civil procedure or rules of evidence, provided that any party may request that the arbitrator to expand the scope of discovery by doing so in writing and copying any other parties, who shall have fifteen (15) days to make objections, and the arbitrator shall notify the parties of his/her decision within twenty (20) days of any objecting party's submission. If a Claim is for $10,000 or less, MERCHANT or AMERICAN EXPRESS may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the rules of the selected arbitration organization. At the timely request of a party, the arbitrator shall provide a written and reasoned opinion explaining his/her award. The arbitrator's decision shall be final and binding, except for any rights of appeal provided by the FAA. If a Claim is for $100,000 or more, or includes a request for injunctive relief, (a) any party to this AGREEMENT shall be entitled to reasonable document and deposition discovery, including (x) reasonable discovery of electronically stored information, as approved by the arbitrator, who shall consider, inter alfa, whether the discovery sought from one party is proportional to the discovery received by another party, and (y) no less than five depositions per party; and (b) within sixty (60) days of the initial award, either party can file a notice of appeal to a three -arbitrator panel administered by the selected arbitration organization, which shall reconsider de novo any aspect requested of that award and whose decision shall be final and binding. If more than sixty (60) days after the written arbitration decision is issued the losing party fails to satisfy or comply with an awa rd or file a notice of appeal, if applicable, the prevailing party shall have the right to seek judicial confirmation of the award in any state or federal court where MERCHANT's headquarters or MERCHANT's assets are located. viii. Confidentiality. The arbitration proceeding and all testimony, filings, documents, and any information relating to or presented during the proceedings shall be deemed to be confidential information not to be disclosed to any other party. All offers, promises, conduct, and statements, whether written or oral, made in the course of the Claim resolution process, including but not limited to any related negotiations, mediations, arbitration, and proceedings to confirm arbitration awards by either party, its agents, employees, experts or attorneys, or by mediator or arbitrator, including any arbitration award or judgment related thereto, are confidential and inadmissible for any purpose, including impeachment or estoppel, in any other litigation or proceeding involving any of the parties or non-parties; provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non discoverable as a result of its use in the negotiation, mediation, or arbitration. ix. Costs of Arbitration Proceedings. MERCHANT will be responsible for paying MERCHANT's share of any arbitration fees (including filing, administrative, hearing or other fees), but only up to the amount of the filing fees MERCHANT would have incurred if MERCHANT had brought a Claim in court. AMERICAN EXPRESS will be responsible for any additional arbitration fees. At MERCHANT's written request, AMERICAN EXPRESS will consider in good faith making a temporary advance of MERCHANT's share of any arbitration fees, or paying for the reasonable fees of an expert appointed by the arbitrator for good cause. x. Additional Arbitration Awards. If the arbitrator rules in MERCHANT's favor against AMERICAN EXPRESS for an amount greater than any final settlement offer AMERICAN EXPRESS made before any arbitration award, the arbitrator's award will include: (1) any money to which MERCHANT is entitled as determined by the arbitrator, but in no case less than $5,000; and (2) any reasonable attorneys' fees, costs and expert and other witness fees incurred by MERCHANT. xi. Definitions. For purposes of the above arbitration provisions only, (i) AMERICAN EXPRESS includes any of its affiliates, licensees, predecessors, successors, or assigns, any purchasers of any receivables, and all agents, directors, and representatives of any of the foregoing, and (ii) MERCHANT includes any of MERCHANT's affiliates, licensees, predecessors, successors, or assigns, any purchasers of any receivables and all agents, directors, and representatives of any of the foregoing, and (iii) Claim means any allegation of an entitlement to relief, whether damages, injunctive or any other form of relief, against AMERICAN EXPRESS or against ISO or any other entity that AMERICAN EXPRESS has the right to join in resolving a Claim, including, a transaction using an AMERICAN EXPRESS product or network or regarding an AMERICAN EXPRESS policy or procedure. Except as expressly permitted by LAWS, MERCHANT must not: o indicate or imply that it prefers, directly or indirectly, any other CARD BRANDS over AMERICAN EPRESS, 201504 Mainstream Merchant Services, Inc. Merchant T&Cs Page 20 of 21 C NFIDENTIAL 219 0224 o try to dissuade cardholders from using AMERICAN EXPRESS, o criticize or mischaracterize AMERICAN EXPRESS or any of its services or programs, o try to persuade or prompt cardholders to use any other CARD BRANDS or any other method of payment (e.g., payment by check), o impose any restrictions, conditions, disadvantages or fees when AMERICAN EXPRESS is accepted that are not imposed equally on all other CARD BRANDS, except for electronic funds transfer, or cash and check, o suggest or require cardholders to waive their right to dispute any SALE, o engage in activities that harm the AMERICAN EXPRESS business or brand (or both), o promote any other CARD BRAND (except MERCHANT's own private label card that MERCHANT issues for use solely at MERCHANT's business locations and websites) more actively than MERCHANT promotes AMERICAN EXPRESS, or o convert the currency of the original SALE to another currency when requesting authorization or submitting SALES (or both). MERCHANT may offer discounts or in-kind incentives from MERCHANT's regular prices for payments in cash, ACH funds transfer, check, debit card or credit/charge card, provided that (to the extent required by LAWS): (i) MERCHANT clearly and conspicuously disclose the terms of the discount or in-kind incentive to MERCHANT's customers, (ii) the discount or in-kind incentive is offered to all of MERCHANT's prospective customers, and (iii) the discount or in-kind incentive does not differentiate on the basis of the issuer or, except as expressly permitted by applicable state statute, payment card network (e.g., Visa, MasterCard, Discover, JCB, American Express). The offering of discounts or in-kind incentives in compliance with the terms of this paragraph will not constitute a violation of the provisions set forth above. Whenever payment methods are communicated to customers, or when customers ask what payments are accepted, MERCHANT must indicate MERCHANT's acceptance of AMERICAN EXPRESS and display AMERICAN EXPRESS' marks (including any AMERICAN EXPRESS card application forms provided to MERCHANT) as prominently and in the same manner as any other CARD BRANDS. MERCHANT must not use the AMERICAN EXPRESS marks in any way that injures or diminishes the goodwill associated with the mark, nor (without prior written consent from ISO) indicate that AMERICAN EXPRESS endorses MERCHANT's goods or services. MERCHANT shall only use the AMERICAN EXPRESS marks as permitted by the AGREEMENT and shall cease using AMERICAN EXPRESS' marks upon termination of the AGREEMENT. For additional guidelines on the use of the AMERICAN EXPRESS marks, contact ISO. Any and all cardholder information is confidential and the sole property of the applicable issuer, AMERICAN EXPRESS or its affiliates. Except as otherwise specified, MERCHANT must not disclose cardholder information, nor use nor store it, other than to facilitate SALES at MERCHANT's business locations and websites in accordance with the AGREEMENT. MERCHANT must ensure that it and any third parties it enlists to facilitate SALES processing complies with the American Express Technical Specifications (available at www.tsystransactionsummary.com) (valid and accurate data must be provided for all data elements in accordance with the American Express Technical Specifications). Failure to comply with the American Express Technical Specifications may impact Merchant's ability to successfully process SALES. MERCHANTS may be assessed non-compliance fees if MERCHANT fails to comply with the Technical Specifications. To ensure compliance with the Technical Specifications, MERCHANTS should work with ISO. MERCHANT must comply with and assure that Merchant Providers comply with the American Express Data Security Operating Policy ("DSOP") (found at www.americanexDress.com/datasecuritv), the American Express Program Merchant Data Security Requirements (found at www.mainstre;3mms.com/termsandconditions.asox) and the American Express Information Protection Contract Requirements (IPCR) (found at www.mainstreamms.com/termsandconditions.asox). 201504 Mainstream Merchant Services, Inc. Merchant TBCs Page 21 of 21 220 OCO,ARENTIAL MCF SEBN HOME OF PELICAN ISLAND CITY COUNCIL AGENDA TRANSMITTAL FORM COUNCIL MEETING DATE: February 12, 2020 AGENDA ITEM TITLE: Discuss and Consider Fiscal Year 2020-21 Budget Objectives. RECOMMENDATION: Vote to Modify or Approve the Budget Objectives Prepared and Recommended by Staff. Staff has prepared the attached listing of budget objectives. This identifies and addresses key areas of concern for each of the separate funds of the City that are included in the budget. As we proceed with preparing the budget for next fiscal year, this document can be used to keep everyone aware of legal or policy issues that must be followed. IF AGENDA ITEM REQUIRES EXPENDITURE OF FUNDS: Appropriation Required: NIA Administrative Services Department Review: ATTACHMENTS: • Recommended Fiscal Year 2020-21 Budget Objectives. City Manager ut rization: Date: 221 of 224 City of Sebastian Fiscal Year 2020-21 Budget Objectives • General Fund • Limit overall increases to O&M accounts to no more than current year amounts. • Limit personnel additions and provide for pay and benefit increases as necessary to remain competitive. • Insure that Reserves are maintained at no less than the minimum of $5,000,000. • Make every effort to balance the budget using the calculated "rolled -back" millage. • Special Revenue Funds • Project revenues at realistic but conservative expectations. • Keep expenditures and transfers within amounts that also allow for funding of future projects. • Use Local Option Gas Taxes for roadway paving or reconstruction according to the Paving Plan. • Use Discretionary Sales Taxes for acquiring or replacing major infrastructure and equipment: • Payment of principal and interest on Stormwater Revenue notes (until May 1, 2022). • Updates to computer technology. • Replacement and purchases of Police Department vehicles and equipment. • Completion of Public Facilities Compound. • Replacement of major public works equipment with useful lives greater than five years. • Major improvement to Stormwater systems. • Matching requirement on grant funded Airport projects, if Airport funds are insufficient. • Use Riverfront CRA Tax Increment toward increasing taxable values within that area: • Provide grant funding for sign improvements and sewer connections. • Provide funding in support of special events. • Provide maintenance and repairs to Working Waterfront facilities. • Provide ongoing maintenance of Riverview Park and rights -of -ways. • Provide funds to implement tree preservation program at Riverview Park. • Use Recreation Impact Fees on identification signage, playgrounds and parks. • Use Stormwater Fees to improve and maintain the Stormwater system: • Ongoing staffing, operational expenditures and equipment replacements. • Matching requirements for grant funded improvements. • Expenditures to manage vegetative growth within spending levels that can be sustained. • Use Parking -In -Lieu -of Fund balances collected in the toward public parking projects. • Use Law Enforcement Forfeiture Fund balances for Police Department items needed but not budgeted. • Golf Course • Budget sufficiently to operate and maintain the facilities in good condition. • Provide for repayment of loans from General Fund and Building Fund. • Consider measures to increase participation. • Airport • Budget sufficiently to operate and maintain the facilities in good condition. • Provide for repayment of loans from the Discretionary Sales Tax Fund. • Continue providing additional facilities for rentals and efforts to create an emergency cash reserve. • Building • Ensure compliance with Florida Statute 553.80(7): • Total revenues may not exceed the total estimated annual expenses. • Additional Balances carried forward from FY2019-20 may not exceed the average operating budget for the past four years since July 2019 of $820,066. 222 of 224 07m SEBTN HOME OF PELICANI5LAND CITY COUNCIL AGENDA TRANSMITTAL Council Meetinq Date: February 12, 2020 Aqenda Item Title: Appoint one (1) Councilmember to participate and serve as chair on the Audit Services Evaluation Committee. Recommendation: Staff recommends that the Council APPOINT one (1) Councilmember to participate and serve as chair of the Evaluation Committee for Auditing Services per Florida Statue 218.391 Auditor selection procedures. Background: The Procurement Division, requests Council's appointment of one (1) Councilmember to serve as chair of the Evaluation Committee for the review and selection of RFP proposals for Auditing Services. Per Florida Statute 218.391, "The auditor selection committee for a municipality ...must consist of at least three members. One member of the auditor selection committee must be a member of the governing body..., who shall serve as the chair of the committee."The City Manager will appoint 2 non-employee members to participate on this committee, meeting `the statute requirements of at least three (3) members. 2 employees will also be appointed to serve in an advisory capacity where their skills and knowledge of local, state and federal policies, along with City processes and procedures will complement the knowledge and skills of the Committee to ensure effective selection. The Evaluation Committee must be made up of members that have an independent mindset and the expertise to provide suitable input. Members should have the ability to approach responsibilities with a questioning mind and healthy sense of professional skepticism. They should each be able to exercise their own judgement and remain objective. It is suggested that members be considered "financial experts," defined by his or her education and background. A Request for Proposal (RFP) is currently being prepared by the Procurement Division for intended release on Monday, March 16, 2020. The solicitation document and process, including the evaluation process, will meet the requirements outlined in the above referenced Florida Statute as well as all other Procurement -related policies. City Manager Authorization: Date: Attachments: 1. Florida Statute 218.391 223 of 224 Select Year: 2019 T Go The 2019 Florida Statutes Title XIV Chanter 218 View Entire Chanter TAXATION AND FINANCE FINANCIAL MATTERS PERTAINING TO POLITICAL SUBDIVISIONS 218.391 Auditor selection procedures.— (1) Each local governmental entity, district school board, charter school, or charter technical career center, prior to entering into a written contract pursuant to subsection (7), except as provided in subsection (8), shall use auditor selection procedures when selecting an auditor to conduct the annual financial audit required in s. 218.39. (2) The governing body of a county, municipality, special district, district school board, charter school, or charter technical career center shall establish an auditor selection committee. (a) The auditor selection committee for a county must, at a minimum, consist of each of the county officers elected pursuant to the county charter or s. 1(d), Art. VIII of the State Constitution or their respective designees and one member of the board of county commissioners or its designee. (b) The auditor selection committee for a municipality, special district, district school board, charter school, or charter technical career center must consist of at least three members. One member of the auditor selection committee must be a member of the governing body of an entity specified in this paragraph, who shall serve as the chair of the committee. (c) An employee, a chief executive officer, or a chief financial officer of the county, municipality, special district, district school board, charter school, or charter technical career center may not serve as a member of an auditor se(ection committee established under this subsection; however, an employee, a chief executive officer, or a chief financial officer of the county, municipality, special district, district school board, charter school, or charter technical career center may serve in an advisory capacity. (d) The primary purpose of the auditor selection committee is to assist the governing body in selecting an auditor to conduct the annual financial audit required in s. 218.39; however, the committee may serve other audit oversight purposes as determined by the entity's governing body. The public may not be excluded from the proceedings under this section. (3) The auditor selection committee shall: (a) Establish factors to use for the evaluation of audit services to be provided by a certified public accounting firm duty licensed under chapter 473 and qualified to conduct audits in accordance with government auditing standards as adopted by the Florida Board of Accountancy. Such factors shall include, but are not limited to, ability of personnel, experience, ability to furnish the required services, and such other factors as may be determined by the committee to be applicable to its particular requirements. (b) Publicly announce requests for proposals. Public announcements must include, at a minimum, a brief description of the audit and indicate how interested firms can apply for consideration. (c) Provide interested firms with a request for proposal. The request for proposal shall include information on how proposals are to be evaluated and such other information the committee determines is necessary for the firm to prepare a proposal. (d) Evaluate proposals provided by qualified firms. If compensation is one of the factors established pursuant to paragraph (a), it shall not be the sole or predominant factor used to evaluate proposals. (e) Rank and recommend in order of preference no fewer than three firms deemed to be the most highly qualified to perform the required services after considering the factors established pursuant to paragraph (a). If fewer than three firms respond to the request for proposal, the committee shall recommend such firms as it deems to be the most highly qualified. (4) The governing body shaft inquire of qualified firms as to the basis of compensation, select one of the firms recommended by the auditor selection committee, and negotiate a contract, using one of the following methods: (a) If compensation is not one of the factors established pursuant to paragraph (3)(a) and not used to evaluate firms pursuant to paragraph (3)(e), the governing body shall negotiate a contract with the firm ranked first. If the governing body is unable to negotiate a satisfactory contract with that firm, negotiations with that firm shall be formally terminated, and the governing body shalt then undertake negotiations with the second -ranked firm. Failing accord with the second -ranked firm, negotiations shall then be terminated with that firm and undertaken with the third -ranked firm. Negotiations with the other ranked firms shall be undertaken in the same manner. The governing body, in negotiating with firms, may reopen formal negotiations with any one of the three top-ranked firms, but it may not negotiate with more than one firm at a time. (b) If compensation is one of the factors established pursuant to paragraph (3)(a) and used in the evaluation of proposals pursuant to paragraph (3)(d), the governing body sha(l se(ect the highest -ranked qualified firm or must document in its public records the reason for not selecting the highest -ranked qualified firm. (c) The governing body may select a firm recommended by the audit committee and negotiate a contract with one of the recommended firms using an appropriate alternative negotiation method for which compensation is not the sole or predominant factor used to select the firm. (d) In negotiations with firms under this section, the governing body may allow a designee to conduct negotiations on its behalf. (5) The method used by the governing body to select a firm recommended by the audit committee and negotiate a contract with such firm must ensure that the agreed- upon compensation is reasonable to satisfy the requirements of s. 218.39 and the needs of the governing body. (6) If the governing body is unable to negotiate a satisfactory contract with any of the recommended firms, the committee shall recommend additional firms, and negotiations shall continue in accordance with this section until an agreement is reached. (7) Every procurement of audit services shall be evidenced by a written contract embodying ali provisions and conditions of the procurement of such services. For purposes of this section, an engagement letter signed and executed by both parties shall constitute a written Contract. The written contract shat(, at a minimum, include the following: (a) A provision specifying the services to be provided and fees or other compensation for such services. (b) A provision requiring that invoices for fees or other compensation be submitted in sufficient detail to demonstrate compliance with the terms of the contract. (c) A provision specifying the contract period, including renewals, and conditions under which the contract may be terminated or renewed. (8) Written contracts entered into pursuant to subsection (7) may be renewed. Such renewals may be done without the use of the auditor selection procedures provided in this section. Renewal of a contract shall be in writing. (9) If the entity faits to select the auditor in accordance with the requirements of subsections (3)-(6), the entity must again perform the auditor selection process in accordance with this section to select an auditor to conduct audits for subsequent fiscal years. History.—s. 65, ch. 2001-266; s. 1, ch. 2005-32; s. 15, ch. 2019-15. Copyright M 1995.2020 The Florida Legislature • Privacy Statement • ContKt X15 224 of 224