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HomeMy WebLinkAbout12011993 City of Sebastian 1225 MAiN STREET g SEBASTIAN, FLORIDA 32958 TELEPHONE (407) 589-5330 [] FAX (407) 589-5570 AGENDA SEBASTIAN CITY COUNCIL WORKSHOP MEETING WEDNESDAY, DECEMBER 1, 1993 - 7:00 P.M. CITY COUNCIL CHAMBERS 1225 MAIN STREET, SEBASTIAN, FLORIDA ALL PROPOSED ORDINANCES AND INFORMATION ON ITEMS BELOW MAY BE INSPECTED IN THE OFFICE OF THE CITY CLERK, CITY HALL, 1225 MAIN STREET, SEBASTIAN, FLORIDA. Individuals shall address the City Council with respect to agenda items immediately prior to deliberation of the item by the City Council if they have signed the sign-up sheet provided prior to the meeting - limit often minutes per speaker (R-93-19) Introduction of New Business from the Public shall not be allowed at City Council Workshops (R-93-19). 1. CALL TO ORDER 2. PLEDGE OF ALLEGIANCE 3. ROLL CALL AGENDA MODIFICATIONS (ADDITIONS ~ DELETIONS) Items not on the written agenda may be added only upon unanimous consent of the Council members present (Resolution No. R-93-19). 5. ANNOUNCEMENTS 6. CONSENT AGENDA Ail items on the consent agenda are considered to be routine and will be enacted by one motion. There will be no separate discussion of consent agenda items unless a member of City Council so requests; in which event, the item will be removed and acted upon separately. 93.353 PGS 1-3 93.263 PGS 5-Z0 93.263 PGS 21-50 93.354 PGS 51-53 93.267 PGS 55-58 Ameron Homes, Inc. - Specimen Tree Removal Request - Lot 30, Block 494, Unit 15, Sebastian Highlands - One Pine (Director of Community Development Transmittal dated 11/22/93, Application, Survey) 7. MAYOR AND CITY COUNCIL ~ATTERS A. Mrs. Norma Damp B. Mr. Robert Freeland C. Mayor Lonnie R. Powell E. Mrs. Carolyn Corum CITY ATTORNEY MATTERS D. Vice-Mayor Frank Oberbeck WORKSHOP ITEMS Aj Approve Agreement with GDU for Continuation of Utility Billing (Finance Director Transmittal dated 11/19/93, GDU Letter dated 11/17/93, GDU Agreement with Exhibit A, GDU Utility Processing Procedure, ITRON Letter, GDU Unbilled Revenue Calculations) / B. Waive Bidding Procedure - Utility Billing Hardware and Software Upgrades in Conjunction with GDU System Acquisition - Approximately $19,535 (Finance Director Transmittal dated 11/19/93, Utilities Director Memo dated 11/18/93, 6. / SCT Letter dated 11/15/93, SCT License Agreement) Planning and Zoning Commission Recommendation Re: Limit Number of Private Vehicles Parked at Residence (Director of Community Development Transmittal dated 11/12/93, P & Z Memo dated 11/8/93) Review Planning and Zoning Commission Recommendation Re: Riverfront District Rezoning (Director of Community Development Transmittal dated 11/23/93, P & Z Memo dated 11/8/93, Proposed Language) 93.337 ~ E/ Discuss Proposed Ordinance No. O-93-21 - Charter PGS $9-10S v Revision - A~rport (City Clerk/Acting City Manager Transmittal dated 11/23/93, Proposed Language, Walden (FAA) Letter dated 1/11/89, Potter Letter dated 2/7/89, Nash Letter dated 2/20/89, Eisengrein (FAA) Statement dated 6/7/89, Nash Letter dated 6/9/89, Eisengrein Letter dated 6/12/89, Cutler Letter dated 6/8/89, Agreement in Principle, Order Snell vs. city) 93.125 F. PGS 109-167 Assistant city Attorney Response to Comments Made By Herbert Sturm at 11/10/93 Regular Meeting (Torpy Letter dated 11/23/93, 19th Judicial circuit Court Appellate Division Orders) 93.355 G. PGS 169-171 Proposed Intersection - Orange Heights Subdivision - City Engineer Report (city Engineer Transmittal dated 11/17/93, Map) 93.296 H. P~ 173 city Manager Recruitment (Personnel Director Transmittal dated 11/23/93) 11. ADJOURN ANY PERSON WHO DECIDES TO APPEAL ANY DECISION MADE BY THE CITY COUNCIL WITH RESPECT TO ANY MATTER CONSIDERED AT THIS MEETING (OR HEARING) 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. (286.0105 F.S.) IN COMPLIANCE WITH THE AMERICANS 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. I City of Sebastian POST OFFICE BOX 780127 [] SEBASTIAN, FLORIDA 32978 TELEPHONE (407) 589-5330 [] FAX (407) 589-5570 SUBJECT: REQUEST TO REMOVE SPECIMEN TREE AMERON HOMES, INC. proved For Submittal By: City Manager Agenda Number: Dept. Origin: Community Deve]opmen~ ('B~' Date Submitted: 11/22/93 For Agenda Of: 12/01/93 Exhibits: Tree removal application and survey. EXPENDITURE REQUIRED: AMOUNT BUDGETED: APPROPRIATION REQUIRED: SUMMARY STATEMENT Pursuant to the City Counc'±l's direction at its regu]ar meeting of May 22, 1991, the City of Sebastian Building Department requires a tree removal permit to be obtained prior to removal of trees. The applicant, Ameron Homes, Inc., is requesting removal of a specimen tree located at 117 Dickens Avenue (Lot 30, Block 494, Sebastian Highlands Unit 15). The 22" Pine Tree is located in the proposed house site. Ameron Homes, Inc., has been notified about the Gopher Tortoise Den and will conform with the State of Florida Game and Freshwater Fish Commission. RECOMMENDED ACTION .qove to approv~:~._ the removal of one Pine Tree locat~ao ~ at. Lot 30, Block 494 Sebastian Highlands Unit t5. ' T~ OF SEUASTIAN / APPlICATiON FOB CLEARING AND SUBDIVISION~ ' Seb~ Hig~n~ CONI'RAC~'Oll t ~0n Hom~ Inc IIEASON FOIl TIlE PEHHIT:. TO c0~~_~¢ O~NEH O~ PROPERTY: ff~e~ 8~ ' rareness. , ~0 .~o~ ~{~s .... ..... I certify that ~11 the [ore~oin~ information is aocura[e and Eha[ all uork uzll be done zn compliance ~z[h Elm Land I)evelopmen~ Code ( Article XIV THERE A~E ~0 SPECIMEN TREES ~[~9~ MUST INCLUDE: l. On a a~r~'~a[e all specimen diameter or morel, Indicate wl~ich trees [o be removed and/or relocated. Indicate. each tree. All specimen morel to be removed or relocated approval o[ the ~ebaa[ian City Council. A survey indicating all improvements must be. submitted rela~lun [o the removal ut the specimen trees. ribbon around ~he ~ree approximately 6 [ee~ above ~he grade, of[tee Use only nppnoV~u Fun p~nuir~~ ~,~S, .... MUST OBTAIN CITY COUNCIL ]~A~ YE8~~ NOi . IF YES, DATE OF CITY COUNCIl, APPROVAL: -- -- ~33ado~d eTq~ ~696I '9 ~eg pmaep '691 ~o 9L TaUma '~9LODT90~I 'oN de~ 02 ~u~pJoaav 'S3 Od drld -LFIOAV'I NOLLOFI[dJ.~NO0 ~JOd 03Sfl 3~ 01 J. ON ~NV"'ld J-O'ld INVDYA ,00 '09 (~) :~flN:~AVovm ~L'm~ SN:l)13~zl a -~ 3:~lt'JO I S3fl I~VA City of Sebastian 1225 MAIN STREET [] SEBASTIAN, FLORIDA 32958 TELEPHONE (407) 589-5330 u FAX (407) 589-5570 SUBJECT: Agreement With GDU ) Agenda No. For Continuation of Utility ) Billing Approved for Submittal By: Interim City Manager ) Dept. of Origin: Finance (MS) ) ) Date Submitted: 11/19/93 ) ) For Agenda of: 12/01/93 ) ) Exhibits: ) *GDU Letter Dated 11/17/93 ) *GDU Agreement With Exhibit "A" ) *GDU Utility Processing Procedure ) *ITRON Letter Agreeing to License ) the City at a future date ) *GDU Unbilled Revenue Calculations EXPENDITURE REQUIRED: AMOUNT BUDGETED: APPROPRIATION REQUIRED: SUMFu%RY STATEMENT The City will not, in my opinion, be able to bill GDU customers at the first billing cycle due date of January 7, 1994 following GDU Acquisition on December 16, 1993. It is customary and ordinary to ask the current owner of the Utility System to continue to be available for certain transitional services. As covered in paragraph 4 of the GDU purchase agreement, billing services would be an additional service provided to the City by GDU at cost. GDU has submitted a proposed agreement to provide billing collection, data processing and related activities for the City for a period not to exceed three (3) months, as follows: Programmer Start-up/One Time Cost $ 75.00/Hour gB. Monthly Charges Posting Charges Postage & Mailing AT & T Equipment Lease Office Space Lease FP & L Southern Bell Answering Service $1,587.00 170.00 464.00 55.00 50.00 118.00 161.00 298.00· Total Monthly cost $2,903.00 RECOMMENDED ACTION Move to approve the GDU transitional billing agreement and authorize the I~t~rim City l-:&na~¢~ to execute the agreement.~-~ General Developnlent Utilities, Inc. AN ATLANTIC GULF COMMUNITY CORPORATION SUBSIDIARY 2601 SOUTH BAYSHORE DRIVE MIAMI. FL 33133-5461 (305) 859~4331 Charles E. Flincher, Jr. PRESIDENT November 17, 1993 Via Federal Express Ms. Marilyn Swichkow City Of Sebastian 1225 Main Street Sebastian, FL 32958 RE: Sebastian Billing Support Agreement Dear Ms. Swichkow: Pursuant to our recent conversation, attached is an agreement for billing support services for your review and approval. Please note that the agreement includes certain assumptions with regard to the charges as shown on Exhibit A. This agreement is based on thc premise that the City of Sebastian personnel will be responsible for the day to day operations and customer service. GDU will only be responsible for the processing of the actual bills and revenues and for providing the use of the local Sebastian office, if GDU decides to vacate the local office prior to this agreement expiring, the city would have the right to lease this office space from Indian River County by assignment. GDU will be able to provide delinquency billings using GDU forms for the month of December. In order to bill the January 1994 billing with the City's name and logo on the envelope the supplier will need to be given the order at least by the end of November. Attached is a utility processing information sheet which outlines the GDU procedure for billing. If the City wishes to mail a customer notice advising the customer of the purchase it can be mailed to the customer as a bill insert or you may provide notice through a bill message. Please let us know what you would be interested in doing. Also attached is a calculation for the unbilled revenue. This calculation is based on our November 2, 1993 billing and would need to be updated based upon more recent data. Marilyn Swichkow November 17, 1993 Page 2 We have included a letter from Itron confirming the Itron software license fee of $1000 previously mentioned. If you have any questions after you have reviewed this information, please call. Sincerely, Enclosure CC: Gary B. Frese, Esq. Marcia Langley, Esq. Kathryn O'Halloran A(~RE~MENT THIS AGREEMENT, entered into this ~ day of December, 1993 by and between GENERAL DEVELOPMENT UTILITIES, INC., a Florida corporation, hereinafter referred to as "GDU" and the CITY OF SEBASTIAN, FLORIDA, a municipal corporation created under the laws of the State of Florida, acting through its City Council, hereinafter referred to as the "City". RECITALS 1. GDU is on even date herewith conveying the Sebastian Water and Wastewater System (the "Utility System") to the City in accordance with that certain City of Sebastian, Florida/General Development Utilities, Inc. Water and Sewer System Purchase And Sale Agreement date October 12, 1993. (the "Agreement") 2. The City ultimately intends to operate the Utility System through its own employees and under its sole discretion, but as of the date hereof, the City is unable to operate the Utility System in its entirety. 3. Pursuant to Paragraph 4 of the Agreement, GDU agreed to provide certain transitional services to City at no additional cost to City, but City has requested certain additional services be provided by GDU and GDU has agreed to provide such services in accordance with the terms set forth herein. 4. During a transition period following the date of acquisition, in addition to the services to be provided by Utility to City, technical support relating to billing and information processing will be required to provide uninterrupted service for the customers of the Utility System. 5. GDU has indicated its willingness to provide technical support during the period, not to exceed three (3) months. 6. The City desires to have GDU provide this service in accordance with the terms set forth herein and believes this arrangement to be in the public interest. NOW, THEREFORE, in consideration of the mutual promises contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 1, RECITALS: The foregoing recitals are true and correct and are incorporated herein by this reference. SCOPE OF WORK: The City hereby engages GDU, and GDU hereby accepts such engagement, as an independent contractor, to provide to the City the following technical support for billing services with respect to the Utility Systems: (i) MIS, Treasury, GDU and other monthly processing services; (ii) programming support services; and (iii) mailing and processing services; (iv) access to operational equipment at GDU's division office. GDU shall also use good faith efforts to provide data or reports necessary to assist the City in its conversion to its' own billing system, at no cost to the City, other than any out of pocket costs. TEF[M OF AGREEMENT: GDU will provide the foregoing services to the City for a period of three (3) months following the date hereof, unless such services are no longer required by the City and are terminated in accordance with paragraph 6 below, or extended through mutual consent of the parties. COMPENSATION: GDU shall receive as compensation for all services to be rendered hereunder the amounts set forth in the rate schedule attached hereto as Exhibit "A" and by this reference made a part hereof which are to be paid as follows: (i) GDU shall submit invoices for services performed hereunder to the City on a monthly basis; and (ii) the City shall remit payment to GDU for all amounts owing as set forth on the invoices within twenty (20) days following receipt of the invoices. Notwithstanding the foregoing, if any additional services are provided which are not included on the rate schedule attached as Exhibit "A", GDU will be compensated only for its out of pocket costs of performing said services (including reasonable overhead expenses), without any additional profit. LIABILITY: GDU shall provide the technical billing services at a standard of quality and accuracy comparable to those services that it provides to its own operation divisions. If errors or omissions are made as a result of GDU's billing programs, then the billing invoice shall be corrected and redelivered to the customer at GDU's sole cost and expense. GDU shall not be liable to the City for any damages or liabilities arising out of or in connection with the performance of the services hereunder, except for any actions constituting gross negligence or willful misconduct. 2 TERMINA.TION OF SERVICES: From and after the initial 90 day term hereof, either party may terminate this Agreement upon (30) days prior written notice. Upon such termination, the City shall immediately pay to GDU all amounts owing for services rendered through the effective date of termination in accordance with the schedule attached hereto as Exhibit "A". REVENUES: GDU agrees to transfer revenues on a weekly basis to the City's account by ACH transfer, or other methods if mutually agreed upon. INDEPENDENT CONTRACTOR RELATIONSHIP: GDU is being engaged hereunder as an independent contractor and nothing contained herein shall be construed to create a relationship of principal and agent, employer and employee, joint venture or partnership between GDU and the City. Accordingly, no additiohal benefits shall accrue to GDU and/or the City and no withholding shall be undertaken with respect to fees payable hereunder. NOTICES: Any notice required or permitted to be given under this Agreement shall be in writing, and shall be deemed to have been given if delivered by hand, sent by recognized overnight courier (such as Federal Express) or mailed by certified or registered mail, return receipt requested, in a postage prepaid envelope, and addressed as follows: To GDU at: GENERAL DEVELOPMENT UTILITIES, INC. 2601 South Bayshore Drive Miami, Florida 33133-5461 Attn: Charles E. Fancher, Jr. President copy to: Marcia H. Langley, Esq. ATLANTIC GULF COMMUNITIES CORPORATION 2601 South Bayshore Drive Miami, Florida 33133-5461 3 To City at: City Manager CITY OF SEBASTIAN 1225 Main Street Sebastian, Florida 32958 copy to: Charles lan Nash, Esq. City Attorney Frese, Nash & Torpy, P.A. 930 S. Harbor City Blvd. Melbourne, Florida 32901 Notices personally delivered or sent by overnight courier shall be deemed given on the date of delivery and notices mailed in accordance with the foregoing shall be deemed given three (3) days after deposit in U.S. Mail. 10. ASSIGNMENT: This Agreement is personal to the City and GDU, and accordingly, neither the City or GDU shall be entitled to assign its rights hereunder. 11. INTERPRETATION: The terms "GDU" and "CITY" as used herein shall mean and include the named parties and their respective successors and permitted assigns. 12. MISCELLANEOUS: (a) This Agreement shall be construed and governed in accordance with the laws of the State of Florida. (b) In the event any term or provision of this agreement be determined by appropriate judicial authority to be illegal or otherwise invalid, such provision shall be given its nearest legal meaning or be construed as deleted as such authority determines, and the remainder of this Agreement shall be construed to be in full force and effect. (c) In the event of any litigation between the parties to this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees and court costs, including, but not limited to, fees and costs incurred at the trial level and all appellate levels. The parties further mutually agree that any trial shall be before a judge only, the parties mutually waiving any trial by jury. The provisions of this subparagraph shall survive the expiration or earlier 4 termination of this Agreement co-extensively with other provisions of this Agreement. (d) In construing this Agreement, the singular shall be held to include the plural, the plural shall be held to include the singular, the use of any gender shall be held to include every other and all genders, and captions and paragraphs headings shall be disregarded. (e) This Agreement constitutes the entire understanding and agreement between the parties with respect to the subject matter herein, and supersedes all prior written and oral agreements, and may not be changed, altered or modified except by an instrument in writing signed by the party against whom enforcement of such change would be sought. IN WITNESS WHEREOF, the undersigned have executed and delivered this Agreement as of the day and year first above written. Signed, sealed and delivered in the presence of these witnesses: Witness: Print Name: Witness: P~int Name: GENERAL DEVELOPMENT UTILITIES, INC., a Florida corporation BY: Charles E. Fancher, Jr. President (Corporate Seal) Signed, sealed and delivered in the presence of these witnesses: Witness: Print Name: Witness: Print Name: THE CITY Of SEBASTIAN, FLORIDA, a municipal corporation created under the laws of the State of Florida BY: Lpnnie R. Powell, Mayor 5 ATTEST: ~atnr~'n~ ~. o~al~O~n, ~xty uierk (Seal) Approved as to Form and Content: ~h~rles Ian Nash City Attorney Utility Billing Support City of Sebastian I. START UP COSTS One Time Charge $1,000 Forms and Form Design $1,455 ii.MONTHLY CHARGES MIS Processing Treasury Processing (includes direct transfer of monthly revenues) Sun Bank Processing GDU Processing $944 $47 $532 $64 $1,587 III. PRONTO POST CHARGES- ACTUAL IV. MAILING COSTS - ACTUAL V. OPERATIONAL COSTS Fixed costs: * OFFICE LEASE - SHARED COSTS * AT&T EQUIPMENT COSTS - SHARED COSTS Variable Costs: * FP&L - ACTUAL - SHARED COSTS SOUTHERN BELL - ACTUAL - FULL COSTS ACTION ANS. SERV.- ACTUAL - FULL COSTS $170 Estimate $464 Estimate $50 $55 $118 Estimate $161 Estimate $298 Estimate V. EXTRA PROGRAMMING SUPPORT 75.00/HR. EXHIBIT A ALL CHARGES ARE BASED ON THE FOLLOWING CONDITIONS: - DEDICATED LINE IS LOCATED AT 2055 SKYLINE DRIVE, VERO BEACH, FL 32960 - CITY AGREES TO USE GDU'S LOCK BOX WITH TRANSFERS OF REVENUES BEING COMPLETED ON A WEEKLY BASIS - CITY PROVIDES GDU WiTH A VOIDED CHECK FOR THE PURPOSE OF SETTING UP THE DIRECT ACH TRANSFER PROCEDURE - CUSTOMER PAYMENTS ARE MAILED TO P.O. BOX 025233 MIAMI, FL 33102-5233 - CITY PROVIDES GDU WITH LOGO FOR USE ON ENVELOPES FOR CITY - NO CHANGES IN BILLING FORMS WITH THE EXCEPTION OF COLOR AND NAME OF CITY * SHARED COSTS ARE BASED ON 50% OF ACTUAL GDU COSTS. THESE OPERATIONAL COSTS ARE SUBJECT TO CHANGE IF GDU DOES NOT REMAIN AT OFFICE LOCATION UTILITIES SYSTEM DALLY PROCESSING Cash is sent in from Sun Bank daily but is only processed into the system three times a week on Tuesday, Wednesday and Friday. There are also payments sent from locations. · TUESDAY PROCESSING Work Orders are produced to be printed at the office. Utilities has two (2) billing cycles. the following utility customers: Each cycle is run on Tuesday and includes · 1st cycle week I includes Port Labelle, Silver Springs & Sebastian. · 2nd cycle week 2 is Port Labelle. · " During the 1st, 2nd, 3rd and 4th weeks there is a Re-bill Process that (1) rebills a particular person, (2) bills if there is a closing, (3) rebills is for any reason there is an exception to be billed, · Disconnect notices are printed. · A report of customers to be cut off is created. WEDNESDAY PROCESSING. · Meter out processing occurs and information is transmitted to the field where they load it down on the Itron hand helds. THURSDAY PROCES$1N.(~ · The field transmits the meter information into the Company for processing. FRIDAY PROCESSING · " A kick out report is produced of exceptions and downloaded to the field to be fixed prior to the billing cycle. UT. PROC MONTH-END PROCESSING There is the normal month-end processing to interface to General Ledger and create backups - this processing must be done prior to cycle one. UT. PROC November 15, 1993 Mr. Charles E. Fancher President Atlantic Gulf Communities, inc. 2601 South Bayshore Drive Miami, FL 33133-5461 Dear Mr. Fancher: This letter provides Itron's assurance that should Sebastian Highlands purchase Itron manufactured equipment at some future date, Itron shall license to Sebastian Highlands the right to use Itron manufactured software contingent upon the execution of a Software License Agreement and payment of the appropriate software license fee. The software license fee is currently $1,000. This price is valid for ninety (90) days. Sincerely, Helen McGregor Contract Administrator HM:jm EAST 15616 EUCLID AVENUE P.O. BOX 15288 SPOKANE, WASHINGTON 99215 (509) 924-9900 TELEX: 9103809850 ITRON SPK FAX; (509) 928-1465 VIA HAND DELIVERY FRESE. NXS & TOaPY. ATTORNEYS AT LAW November 22, 1993 Ms. Marilyn Swichkow, C.P.A. Finance Director, City of Sebastian 1225 Main Street Sebastian, FL 32958 930 $. HAs~oa CrrY BLVD. Surr~ 505 MELSOURN~, FLORIDA 32901 (407) 984-3S00 F~ (40~ 951-3741 ~Bo~ C~m~D ~N T~o~ RE: Acquisition of the Sebastian Highlands Water and Waste Water System from General Development Utilities, Inc. Review of Proposed Billing Support Agreement with GDU Our File No.: 92-8921 Dear Marilyn: In accordance with your request of November 19, 1993, I have reviewed the proposed Sebastian Billing Support Agreement and, offer the following comments: It is my understanding that you have determined that the financial aspects of the proposed Agreement are reasonable and are in the best interests of the City. The signature block on page 5 should provide for the City Clerk to attest to the signature of the Mayor. Furthermore, a signature block should be provided for the City Attorney to approve the Agreement as to form and content. In conclusion, the form and content of the Agreement is reasonable, assuming that you do not foresee any complications in terms of the administration needed to make it work. Very truly yours, FRESE, N~H & TORPY, P.A. Cha Ian Nash City Attorney CIN/bl · ,! City of Sebastian 1225 MAIN STREET n SEBASTIAN, FLORIDA 32958 I TELEPHONE 589-5330 D FAX 589-5570 (407) (407) SUBJECT: Computer Changes Necessary As A Result of GDU Acquisition c~roved for Submittal By: Manager ~-0~ ) Agenda No. ) ) Dept. of Origin= Finance (MS) ) ) ) Date Submitted: 11/19/93 ) ) For Agenda of: 12/01/93 ) ) Exhibits= ) - Memo from Utilities Director, ) R. Votapka, dated 11/18/93 ) ) - Letter from SCT, Dated 11/15/93 ) ) - SCT License Agreement EXPENDITURE AMOUNT REQUIRED: $19,535.00 BUDGETED: 0 APPROPRIATION REQUIRED: $19,535.00 SUMMARY STATEMENT The GDU Sebastian Highlands purchase agreement and subsequent Bond Ordinance, Rate Ordinance, and Engineering Report anticipate and provide for certain start-up transitional costs. Most of these costs are associated with software license agreements, hardware upgrades, transfer of account data with two years customer history to the City's RSC 6000 Computer System. It takes eight weeks for program upgrades, testing, training after execution of this agreement before actually bill the current GDU customers. data input and the City can Capital outlay for hardware and software will be reimbursable from debt proceeds. RECOMMENDED ACTION Move to waive bid procedures to acquire ~omputer hardware and software upgrades and authorize the tnt=~i]w/City Managcl~ to execut~ the license agreement with SCT as revised by the City Attorney's letter dated November 22, 1993 and~ incorporated as part of the SCT agreement. I City of Sebastian POST OFFICE BOX 780127 n SEBASTIAN, FLORIDA 32978' TELEPHONE (407) 589-5330 n FAX (407) 589-5570 DATE: TO: FROM: SUBJECT: November 18, 1993 Kay 0'Halloran, Interim City Manager Richard Votapka, Utilities Director Utility Billing Hardware and Software Upgrades Conjunction with the GDU System Acquisition in Presently, GDU personnel read their meters in Sebastian Highlands with hand held ITRON meter reading units. Due to your efforts, the City will receive these units from Indian River County. The County recently acquired them when it bought the GDU-Vero Highlands system. The ITRON units that the City will be receiving are compatible with the utility software package the City bought from SCT Public Sector, Inc. in Lexington, Kentucky. However, the units are older models that need to be upgraded to accommodate the expanded customer base. With the purchase of GDU, the City will add 1,242 customers to the 203 customers in Park Place and Palm Lake Club and 18 lift station accounts, for a total of 1,473 customers. The ITRON units need to be upgraded for additional memory. The ITRON interface software must be purchased to interface between the ITRON meter reader unit and the utility software package. The unit must download data from the docking station into the RSC 6000 computer in the Finance Department. Hardware to be purchased will include one docking station, a point- of-sale cash register, a Utilities IBM dedicated terminal and bar coding subsystem scanner. The capital costs for the additional hardware and software is itemized as follows: Spectrum Software License Fee Finite Cost Annual Service Fee ITRON Interface Cash Receipts Subsystem Bar Coding Subsystem $3,500 $1,O71 $4,000 $ 825 $4,000 $ 825 Page 2 of 2 November 18, '1993 memo to Kay O'Halloran 2. Hardware a. ITRON Hand Held Upgrade $3,120 $ 298.86 b. BISYNC DEMU 300 to ASYNC~DCMU $ 60 $ 237.60 c. Premier Plus Meter $1,5OO $ 720.00 Reading Software DCMU 300 Docking Station Cash Receipts Hardware ITHACA Model 2 & Indiana Cash Drawer Bar Coding Reader & Stand d. $1,4OO $ 237.60 e. $1,2OO 0.00 f' 0.00 $19.535 S4.215.00 By comparison, two new ITRON hand held meter reading units are $9,850.00 and the software base system costs $26,388 with $4,070.00 required for training personnel to use the system. Since SCT is also an ITRON dealer, then we must request a bid waiver for a sole-source company. We must also act very fast because SCT has advised Marilyn Swichkow that eight (8) weeks will be required to complete all of the updates cc: Marilyn Swichkow Fron: Grog ~hitg at To: Hs..Maril~n $#itchcotc at r~ 9,1~BT-SBg-557B,,,,725 11-15-93 11:4B ~n [~ eel of ee4 Noue,nbe~ 15, 199:3 Its. Na~ilun ~~;~HK0cO Ci~B o£ Sebastian Sebastian, FL ~ ~c~_~ Dea~ Ha~ i lun: Thank Uou £o~ ~he oppo~unit~ ~o propose ano~be~ SCT so£~arc solution · o Bout organization. I baoc lis~ed belou ~be cos~ o£ so~are, suppo~, ba~dua~e and ~aintng. SPECTRUN SOFT~ARE LICENSE FEE ITRON INTERFACE CASH RECEIPTS BARCOD LNG $ ,eee.ee $ ,eee.ee SPECTRUfl A~NUAL SUPPORT (1 YEAR LEVEL Z) ITRO~ INTERFACE CASH RECEIPTS BARCOD $ 8zs.ee $ azs.ee HARD~RRE ITRON (SEE SCHEDULE 1) CASH RECEIPTS (SEE SCHEDULE Z) BAR CODING (SEE SCHEDULE 3) TRAINING S DAYS ON-SITE AT fl COST OF $5Z~.$~ PER DAY Please note: t~aining doc~ no~ include t~avel0 lodging and meals. Your oPganization ~ill be billed £oP ~be~e ITROH HARD~ARE SUPPORT (SEE SCHEDULE 1) From: Grog White At .~ To: Hs. Heriign Suitchcotc et (il 9,1~i87-589-5578,,.,725 iTRON HAHDHELD UPGRADE TO DCH 2.5 Premie~Plus NETER READING SOFT~ARE (1 TO 9 NETER READERS) SCHEDULE 1 cost ANNUAL SUPPORT $ m,56e.oe/EACH $ 298.88 $ 6e.ee $ z3?.Ge $ m,see.ee $ ?ze.ee COST OF REPLACENENT E~UIPNENT DCNU 368 DOCRING STATION BC 6~3 BATTERY CHARGER $ -,,ze.ee PC REQUIRENENT FOR DCNU DOWNLOADING PROCESSOR: FLOPPY DRIUE: HARD DISE: NONITOR: PORTS:. OPERATING SYS. INTEL 386 eR 486 (UP TO 33 NH2) Z .R OB .ORE 3.5" 1.44.B IDE Be NB OR HIGHER UGA COLOR Z SERIAL 1 PARALLEL DOS 4.8 OR HIGHER ~ 11-15-93 11:49 am 237.68 -,es.ce Fron: 6rcg I{hi'cu ~t 1~ {o: {qs. ~flarilgn Snitchcolc ~l ~ 9,1-407-589-5~8,,,,725 11-15-93 11:58 an [~ 883 of 8tH SCHEDULE CASH RECEII~TS HARD,FIRE ITHICA HODEL 52 (SERIflL) IHD IAHA CielSH DRA~JER ($ERIAL) TOTfiL $ ~,2~.88 SERIAL LINES HUST BE PROVIDED FOB THE To: Hs. H~r~l~n SuLtchc0tc At ~ SCHEDULE 3 BRRCODIMG RE~DER ST~HD Please call me iF you have any ques~lon~. Sincerely0 Greg Mhite Customer Recount Representative $ 695. O0 $ 6e .se 11~15-93 11:50 am [~qe4 of 884 ]FRE SE. ]~ASH & TORPY. P.A. ATTORNEYS AT LAW OF COUNSEL Cms BATES FOSTER OF COUNSEL VIA HAND DELIVER]~ November 22, 1993 930 $. I-~'mo~ CrrY BLV~, Surr~ 505 M~.~.~ou~E, i~"LORIDA 32901 (407) 9S4-3S00 F~ (40~ 951-3741 tBo~ Omni.mD IN T~ON * BO~D CER~ED IN W~. *Bo~ Cm~m~D ~N C~ ~ ~W MS. Marilyn Swichkow, C.P.A. Finance Director, City of Sebastian 1225 Main Street Sebastian, FL 32958 RE: Water and Wastewater Revenue Bonds,Series 1993 Review of Proposed Software License Agreement with SCT Review of SCT Customer Support Agreement Our File No.: 93-2236 Dear Marilyn: In accordance with your request of November 19, 1993, I have reviewed the proposed License Agreement with SCT, including the SCT License Agreement Terms and Conditions and the SCT Customer Support Terms and Conditions. As a result of my review, I would recommend the following revisions and clarifications effectuated: Ail signature blocks should provide a place for the Ci~_~ C~rk to attest to the authorized signature of the and a"block should also be added to read as folloW: "Approved as to form and content Charles Ian Nash, City Attorney" The second paragraph of the SCT License Agreement Terms and Conditions, which currently reads "SCT may terminate this Agreement upon written notice if the LICENSEE fails to comply with any of the terms and conditions of this Agreement." should be modified by adding the following phrase before the sentence is to end: "provided, however, in no event shall SCT be empowered or authorized to terminate this License Agreement due to the failure of LICENSEE to comply with any term or condition of this License Agreement, except in accordance with the provisions Ms. Marilyn Swichkow, C.P.A. November 22, 1993 Page Two of paragraph 8 of the SCT License Agreement Terms and Conditions." Paragraph 5 of the SCT License Agreement Terms and Conditions should be modified by adding the additional provision: "Notwithstanding the foregoing contained provisions set forth herein, if SCT is unable to correct any error, malfunction or defect of the Licensed Software after making two attempts to do so, LICENSEE shall have the absolute right to unilaterally cancel this License Agreement and receive a complete refund of the entire License Fee paid for the Licensed Software, including any peripheral Licensed Software which LICENSEE has licensed from SCT pursuant to another License Agreement." The following paragraph should be added as an additional paragraph to existing paragraph 6 of the SCT License Agreement Terms and Conditions to read as follows: "Notwithstanding any of the provisions contained herein to the contrary, LICENSEE shall be authorized by SCT to comply with all provisions of Florida Law applicable to a Florida Municipality, including the provisions of Chapter 119, Florida Statutes, as amended from time to time." The second full paragraph of paragraph 10 of the SCT License Agreement Terms and Conditions should be modified to provide that any lawsuit be brought in the appropriate court located in Indian River County, Florida, having jurisdiction of the matter, and the parties hereto agree not to contest the venue or jurisdiction of any action brought in Indian River County, Florida. Furthermore, such provision should be modified to provide that the Agreement shall be interpreted, administered and governed by the laws of the State of Florida, rather than the Commonwealth of Pennsylvania. Furthermore, the provisions of the fifth full paragraph of paragraph 10 of the SCT License Agreement Terms and Conditions should be deleted. That paragraph currently reads that LICENSEE is responsible for paying any Ms. Marilyn Swichkow, C.P.A. November 22, 1993 Page Three attorney fees of SCT. should be deleted. This provision is one sided and An additional paragraph should be added to all agreements between the City and SCT which limits the amount of expenses that the City shall reimburse SCT to the extent allowable by Chapter 112, Florida Statutes. With respect to the SCT Customer Support Agreement Terms and Conditions, paragraph 16 should be deleted because it is contrary to the express provisions of Florida Law and, therefore, is not enforceable. With respect to the SCT Customer Support Agreement Terms and Conditions, paragraph 17 should be modified to provide for venue for any action brought to enforce or interpret the Agreement shall be in Indian River County, Florida. Furthermore, this provision should be modified to provide that the laws of the State of Florida shall govern the interpretation and enforcement of the Agreement, rather than the laws of the Commonwealth of Pennsylvania. 10. With respect to the SCT Customer Support Agreement Terms and Conditions, the second full paragraph of paragraph 18 should be deleted because it is one sided and requires the City to pay attorney fees for SCT, but does not provide the same requirement of SCT in favor of the City. If you have any question concerning any of my requested modifications, please do not hesitate to contact me. Very truly yours, FRESE/~SH & TORPY, Charles Ian Nash City Attorney Pon. CIN/bl Enclosures as stated cc: Contract's Review General File 92-7840 with copies of enclosures 111 ML10494 SEBAS001 (ADD) LICENSE AGREEMENT GAW (725) 11/93 This Ucense Agreement is made by and between SCT Public Sector. inc. with principal offices at 962 Delaware Ave., Lexington, KY 40505, hereinafter referred to as 'SCT', and Organization Name, Address and Telephone Number: CITY OF SEBASTIAN P.O. BOX 780127 SEBASTIAN, FL 32974 (407) 589-5330 hereinafter referred to as "UCENSEE.' This Ucense Agreement (LA-O01), consisting of this page as well as Terms and Conditions of the Ucense Agreement (LA-TC- 001) and Terms and Conditions of Customer Support (CSA-TC-O01), applies to the following software: SPECTRUM: METER READER SUBSYSTEM (03-034-R5A) The Ucense Fee for the above Licensed Software is $ 3,500. O0 The initial Support Term is 3 months from the date software is received by UCENSEE. Support Services during this term will be at Level 2, as defined on CSA-TC-O01. Support Services, as defined on CSA-TC-O01, will be automatically renewed upon expiration of the Initial Support Term and upon payment of the then current Support Fee by MCENSEE, for a period of twelve (12) months. This period, and all subsequent renewal periods, shall be known as the Support Term. The .computer on which the Ucensed Software is to be used Is known as the Designated Computer and is ~dent~ed as follows: RS/6000, P.O. BOX 780127, (5.25") Computer Type and Location ~erlal Number UCENSEE ACKNOWLEDGES THAT HE/SHE HAS READ THIS AGREEMENT, INCLUDING ALL TERMS AND CONDITIONS AND AMENDMENTS OR ADDENDA, UNDERSTANDS IT AND AGREES TO BE BOUND BY THIS AGREEMENT. THE UCENSEE FURTHER AGREES THAT iT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN THE PARTIES AND SUPERSEDES ALL PROPOSALS OR PRIOR AGREEMENTS, ORAL OR WRITrEN, AND ALL OTHER COMMUNICATIONS BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT. 'ACCEPTED BY: ACCEPTED BY: SCT Public Sector, Inc. Ucensee CITY n~ ?~n;~mT~.~i' DAVID E. ANDERSON Date LA-O01 Rev. 11/92 Authorized Signature Lonnie R. Powell, Mayor ~ST: Kathryn M. O'Halloran, City Clerk Titl~ ...... Date (LA-TC-O01) Page 1 of 2 Rev. 11/92 sc'r UCENSE AGREEMEHT TERMS AND CONDITIONS DEFINITIONS The ten~ "Licansed Software' in this Agreement shall mean all licensed date prooeeeing programs ooneiefing cf Instructions or statements in machine readable form end any related licensed materials which may be provided euch as, but not limited to, manuals, system documentation or written or verbal instructions provided for use in connection with the licaneed date processing programs. TERM This Agreement is effective from the date on which it is accepted by SCT end wi!l remain in effect until terminated by the LICENSEE upon one month's written notice, or by $CT as set forth in this section. This Agreement may be terminated by the UCENSEE only when use of all licensed Software licensed hereunder is discontinued end all licensed Software has been returned to SCT. SCT may terminate this Agreement upon written notice If the LICENSEE fails to comply with any of the terms end conditions cf this Agreement. It is hereby agreed that if LICENSEE shall violate any covenant of this Agreement, then thio Agreement and all Hghts hereunder shall terminate and be at an end, as fully me if this Agreement h~d not been mede, end all rights and licenses hereunder shall revert to sc'r= otherwise, this Agreement shall remain in force for 99 years. 2. LICENSE SCT hereby grants to LICENSEE a non-transferable end non-exclusive License to use the Ucensed Software only on the Designated Computer identified on the face page of this License Agreement. The License is transferable to · backup oomputer when the Designated Computer or an associated unit required for use of the Ucensed Software is temporarily inoperable, but only until operable status is restored to the Designated Computer and processing on the backup computer is completed. If the period of transfer exceeds 90 days. LICENSEE must so advise SOT, in writing. If the Designated Computer cannot be returned to operable status, SCT may approve a permanent transfer of the License to · new Designated Computer of the same type. 3. LICENSE FEE LICENSEE agrees to pay to SCT the one-time license Fee, as stated in the Ucanse Agreement (M-LA-001), upon receipt of appropriate invoice(s) from SCT. SCT agrees, upon receipt of this signed License Agreement and, either payment in full or the minimum deposit, to furnish LICENSEE with one copy of Licaneed Software. LICENSEE agrees, upon receipt cf Licensed Software from SCT, to remit, within thirty (30) days, the remaining balance of this License Fee, if any. 4. APPLICABLE TAXES In addition to the License Fee stated above, LICENSEE agrees to pay ell applicable sales and/or use taxes resulting from this License Agreement. 5. WARRANTY AND EMITATION OF LIABILITY SCT warrants that it hoe the right to market, distribute, support end maintain Licensed Software end that Licensed Software is warranted to confortn to the operating specifications es outlined in the applicable software documentation. LICENSEE agrees that its SOLE AND EXCLUSIVE REMEDY. if Licensed Software warranted hereunder fails to conform to the applicable operating specifications end LICENSEE advises SCT of such failure in writing, during the term of the warranty, is for SCT to correct any error, melfunction or defect (as hereinunder defined). If, after repeated attempts, SCT is unable to correct the error, malfunction or defect, LICENSEE shall be entitled to reoover an amount, commensurate with the nature and magnitude of the error or defect, up to the entire Ucense Fee paid for the [Jcensed Software designated herein. (For the purpose of this Agreement, the term 'error, malfunction or defect' shell mean only significant deviations from the operating specifications for the licensed Software as set forth in the applicable software documentation). SCT's liability for damages to the UCENSEE for any cause whatsoever, end regardless of the form of action, whether in contract or in tort, including negligenoe, shall be limited to the amount of the License Fee paid for the Licensed Software designated herein. In no event will SCT be liable for any damages caused by the LICENSEE's failure to perform the LICENSEE's responsibilities, or for any lost profits~or other consequential damages, even if SCT has 'been advised of the possibility of euch damages. This warranty and the liability of SCT are void in the event that (1) the Licensed Software is not being used with the Designated Computer, (2) modifications have been made to the Licensed Software, or (3) a current SCT Customer Support Agreement is not in effect for the Licensed Software. SCT will provide level 2 Support Services es outlined in the SCT Customer Support Agreement Terms and Conditions document ICSA-TC-001 ) attached hereto end mede c part hereof for the term identified as Initial Support Term on the Lioenee Agreement (LA~:)01). Upon conclusion of the Initial Support Term. SCT shall continue Support Services for Support Terms es defined in the SCT Customer Support Terms end Conditions (CSA-TC-001), upon payment of the then current Support Fee to SCT. EXCEPT AS SPECIFICALLY PROVIDED HEREIN, THERE ARE NO WARRANTIES EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. 6. PROTECTION AND SECURITY OF LICENSED SOFTWARE LICENSEE agrees to use the Licensed Software only as provided in this Agreement end only during the term of License granted by SCT and further agrees not to provide or otherwise make available any Licensed Software to any person other than LICENSEE's employees without prior written consent from SCT, and then only on the condition that such employees agree that the Licensed Software or any part thereof is the property of SCT and is proprietary to SCT. (LA-TC-OO1) Page 2 of 2 Rev. 11/92 LICENSEE also agrees that the Licensed Software is the exclusive property of $CT, constitutes trade secrets of SCT, and is proprietary to SCT end further agrees to protect the Licensed Software or any pert thereof from unauthorized disclosure by its agents, consultants, servants, employees, oustomem, or successors. In the event the License granted hereunder is terminated, the above obligations of LICENSEE with respect to protection and security shall not terminate but shall continue for a period of five (5) years following such termination of License. LICENSEE agrees to reproduce and include SCT's proprietary, copyright and trade secret notice on any copies, in whole or in part, in any form, including partial copies and modifications of Licensed Software. The LICENSEE further agrees to take appropriate action, by instruction, agreement or otherwise, with any persons permitted access to Licensed Software so as to enable the LICENSEE to satisfy the LICENSEE's obligation under this Agreement. 7. MODIFICATION OF MCENSED SOFTWARE The parties agree that LICENSEE shall have the right to modify any Licensed Software supplied by SCT in machine readable form for LICENSEE's uae under this Agreement and on the Designated Computer, and may combine such modified Licensed Software with other programs or material to form an updated work, provided, however, upon dlaoontinuation or termination of rights under this Agreement, the Uoeneed Software supplied by SCT shell be completely removed from the updated work and all such materials end copies shell be returned to SCT in accordance with the provisions of Section 9 of this Agreement, SCT shall be under no obligation, however, to make revisions or releases ~-ompafible with lloensed Software which has been modified. 8. CANCELLATION OF LICENSE The License granted hereunder may be canceled by SCT, if LICENSEE is in default in payment of any amount due under this agreement for a period of thirty (30) days after notice of default, or may be canceled at any time upon breech by the LICENSEE of any other covenant of this Agreement if such breach is not corrected within sixty (60) days after receipt of written notice thereof. LICENSEE's obligation to pay charges which have accrued and damages arising from its breach of this Agreement shall survive cancellation thereof. The remedies provided herein shall not be deemed exclusive but shall be cumulative end shell be in addition to all other remedies provided by law and equity. No delay or omission in the exercise of any power or remedy herein provided or otherwise available to SCT shall impair or affect SCT*s right to exercise the same. Any extension or indulgence (which must be in writing) shall not otherwise alter or affect SCT's rights or obligations or be deemed a waiver thereof..LICENSEE shall pay all applicable costs and reasonable attorney fees, if permitted, and to the extent permitted by law, for the collection of payments and other charges due under this Agreement and/or for the prosecution of LICENSEE for any breach of the covenants of this Agreement. 9. RETURN OF LICENSED SOFTWARE Within thirty (30) days after the termination or cancellation for any reason, of the Uoense granted hereunder, LICENSEE shall deliver to SCT all copies thereof in whatever form, including partial copies which may have been modified by LICENSEE, end execute a letter eo certifying. Upon prior written authorization from SCT, LICENSEE may be permitted for · specified period thereafter to retain one copy of certain materials for record purposes. 10. GENERAL This Agreement is not assignable; neither the License granted hereunder nor any of the Licensed Software or copies thereof may be sub-licensed, assigned or transferred by the LICENSEE. Any attempt to sub-license, assign or transfer any of the rights, duties or obligations under this Agreement is void. This Agreement may be modified by $ written agreement duly signed by persons authorized to sign agreements on behalf of the LICENSEE and of $CT, and variance from the terms and conditions of this Agreement in any LICENSEE purchase order or other written notification will be of no effect. SCT is not responsible for failure to fulfill its obligations under this Agreement due to causes beyond its control. No action, regardless of, form, arising out of this Agreement may be brought by either party more than two years after the cause of action has arisen, or, in the area of nonpayment, more than two years from the date of the last payment. It is mutually agreed that any action at law, suit in equity or judicial proceeding for the enforcement of this Agreement or any provision thereof shall be instituted only in the courts of the Commonwealth of Pennsylvania. It is mutually understood and agreed that this Agreement shall be governed by the laws of the Commonwealth of Penn~venia both as to interpretation and performance. It is understood and agreed by the parties hereto that if any pert, term, or provision of this contract is by the courts held to be Illegal or in conflict with any law of the state where made, the validity of the remaining portions or provisions shall not be affected, and the rights end obligations of the parties shall be construed and enforced as if the contract did not contain the particular part, term, or provision held to be invalid. If the Licensed Software includes the proprietary property of a party other than SCT, said party shall have the same rights as SCT to enforce this Agreement. LICENSEE agrees that should he default in any of the covenants or agreements contained herein, LICENSEE shall pay ell costs and expenses including a reasonable attorney's fee which may arise or accrue from enforcing this Agreement, whether pursued by filing suit or otherwise, or whether such costs and expenses are incurred with or without suit before or after judgment. I ' I I I I I i i I I I I I I I I I I i (CS A-TC-O01 ) (11/92) CERTAIN DEFINITION ,S. Page I of ;2 SCT CUSTOMER SUPPORT AGREEMENT TERMS AND CONDITIONS a. 'Llcer~ed Software" means the unmodified (except by enhancement and error correction releases provided by SCT under the terms of this Agreement) version of the computer programs developed by SCT, or e predecessor company. b. 'Error Correotlon" means a change to the Licensed Software required to allow the License Software to function es stated in the applicable user documentation. c. "U~er Documentation' means the operating instructions developed by SCT end applicable to the licensed Software. d. 'Enhancement" means changes to the Licensed Software which increase the functionality or improve usability of the Licensed Software. e. 'Release' means s yersion of the Licensed Software which represents changes from the previous releases, and which constitute the currently-marketed version of the Licensed Software. f. "Software Syltam" means a family of products offered by SOT, to include Monitor, PSAS, SPECTRUM, SHIELD, or Banner. These Terms and Conditions apply to Licensed Software identified on SCT's license Agreement (L-e01) and to Customer Support identified on the SCT License Agreement or on the applicable SCT Customer Support Agreement (CSA-OO1), and will remain in effect from the Support Commencement Date until the Support Expiration Date end will then be extended for annual periods upon payment of a Support Fee et then current rates. The LICENSEE may terminate this Agreement at the end of any support period by returning the invoice without payment. (See paragraph 6 of this Agreement.) SCT will provide Support at one of the two levels described below and selected bythe LICENSEE during the hours of 8:30 a.m. and 6 p.m., Eastern Time, Monday through Friday (holidays excluded). For LICENSEEs who select Support Level 1, $CT will, upon payment of the then current Support Fee: a) make available, at SCT's option and on SCT's schedule, error correction and enhancement releases to the object code and/or user documentation of the Licensed Software sc as to bring it to a level equivalent with that of the currently marketed release of the Licensed Software; b) provide access to end use of the SCT HELPLINE service to: 1. clarify installation end operating instructions contained in the user documentation delivered with the product, and 2. assist in the identification of solutions to operating problems being experienced by the LICENSEE with the Licensed Software. HELPLINE service is provided et SCT's normal hourly rate for HELPLINE service and is billed at a minimum of one quarter hour per call. c) provide problem determination and investigation on a "best efforts" basis at the then current Level 1 hourly billing rate. and d) provide program error corrections, on the then current release of the Licensed Software, for verified program errors, at no additional charge, and on previous releases of the Licensed Software et the then current hourly billing rate, end e) provide data repairs for LICENSEE files and records on a 'best efforts' basis for ell date problems whether CAUSED BY or NOT CAUSED BY the SCT Licensed Software at the then current hourly billing rate, and f) offer a discount of 25% to be applied toward an upgraded Computer System from SCT. The discount may be applied only toward applications software developed and supported by SCT. For LICENSEEs who select Support Level 2, SCT will, upon payment of the then current Support Fee: a) make available, at SCT's option and on SCT's schedule, error correction and enhancement releases to the object code and/or user documentation of the product so as to bring installed applications to a level equivalent with that of the currently marketed version of the product; b) provide access to end Use of the SCT HELPLINE service to: 1. clarify installation and operating instructions contained in the user documentation delivered with the product, and 2. assist in the identification of solutions to operating problems being experienced by the LICENSEE with the product. HELPLINE service is provided at no additional charge to LICENSEE. c) provide problem determination, investigation, and program error correction for verified program errors on the then current release of the Licensed Software, at no additional charge to LICENSEE. Program error correction on previous releases will be performed at 75% of the then current hourly billing rate. d) provide data repairs for LICENSEE files and records on e "beet efforts" basis for data problems CAUSED BY the SCT Licensed software at no additional charge to LICENSEE, and e) provide data repairs for LICENSEE files and records on a "best efforts' basis for date problems NOT CAUSED BY the SCT Licensed Software at the discounted rate of 75°/6 of SCT's then current hourly billing rate. SCT includes in the category "data problems NOT CAUSED BY the SCT product' any data corruption or integrity problems caused by, but not limited to the following: 1) equipment malfunction or failure 2) failure of LICENSEE to follow procedures end/or instructions contained in the documentation provided with the Licensed Software or in supplementary documentation provided by SCT 3) failure by LICENSEE to follow procedures and/or instructions contained in documentation provided by applicable hardware vendors or failure to follow accepted operating practices (for example, failing to routinely prepare backup data files, powering off or interrupting equipment while programs ere executing, etc.) 4) use of programs, including program modifications, other than those provided by SCT with the Licensed Software. f) offer a discount of 25% to be applied toward an upgraded Computer System from SCT. The discount may be a ' toward applications software developed and supported by SCT. ppli~ (CSA-TC-O01) Page 2 of 2 (11 ~92) SCT will take due care in responding to each request for Support Services to assure that LICENSEE is making proper use of the I_ioer~sed Software, and that the Licensed Software is operaUng properly. SCT will use its best efforts to correct any identified program errors, but does not guarantee results or warrant that all errors will be corrected. SCT expressly excludes the following services from the Support Services to be provided under this Agreement: a) b) c) d) e) f) g) h) System configuration and implementation Operator training On-Site training end customer assistance visits Training classes Licensed Software modifications and/or enhancements other then those supplied as a part of the periodic error correction and updates Support of any Licensed Software product other than the one indicated on the face page of this agreement. Operating system support Hardware repair or support, whether the hardware was sold by SCT or by arty other vendor. Payment, in full, of the appropriate Support fee must be received by SCT prior to Commencement of Service under this Agreement. An invoice for the applicable Support Fee will be submitted by SCT to LICENSEE prior to the termination date. To cancel the annual renewal, LICENSEE must return the invoice indicating intent to discontinue. All charges for shipments and mailings to SCT are the responsibility of the LICENSEE. All returns and mailings to the LICENSEE by SCT are vis regular U.S. Mail, or similar service as selected by aCT, unless specifically directed otherwise by the LICENSEE. All express or expedited charges are the responsibility of the LICENSEE, and will be billed separately to the LICENSEE if paid by SCT. Reinstatement of this agreement after having not been in force for 60 days or fewer will be mede retroactive to the date that the Agreement expired with no reinstatement charge. Reinstatement of this agreement after having not been in force for more than 60 days will incur a reinstatement charge, in addition to the normal Customer Support fee, of an amount equal to 5% of the annual Level 1 Support Fee for each month that this agreement had not been in force, up to a maximum of 50% of the Level 1 Support Fee. 10. $CT's liability for damages to the LICENSEE for any cause whatsoever, and regardless of the form of actions, whether in contract or in tort, including negligence, shall be limited to any actual charges incurred for up to twelve months' Support Fee applicable to the Licensed Software covered under this Agreement. Such Support Fees shall be those in effect when the cause of action arose. In no event shall SCT be liable for any damages caused by the LICENSEE's failure to perform the LICENSEE's responsibilities, or for any lost revenues or other consequential damages, even if SCT has been advised of the possibility of such damages, or for any claim against the LICENSEE by any party. THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPUED, INCLUDING, BUT NOT LIMITED TO, THE iMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. 11. This Agreement is not assignable. None of the services granted hereunder nor any of the Licensed Software materials or copies thereof may be .sub-licensed, assigned or transferred by the LICENSEE. Any attempt to sub-license, assign or transfer any of the rights, duties or obligations under this Agreement is void. 12. The terms and conditions of this Agreement may be modified by SCT effective on the date of automatic renewal by providing the LICENSEE with one month's prior written notice. Any such modification will apply unless the LICENSEE exercises the option to terminate this Agreement. Any variation from these terms and conditions in any LICENSEE order or other modification will be of no affect. 13. 14. The UCENSEE represents that he is the LICENSEE identified on the Ucansa Agreement (LA-001) or the Customer support Agreement (CSA- O01) and that LICENSEE is in compliance with the terms and conditions associated with the applicable License Agreement. SCT's services provided outside the scope of the Level selected by the LICENSEE will be furnished on SCT's schedule and at SCT's applicable time and material billing rate and terms then in effect. 15, Neither SCT nor LICENSEE ere responsible for failure to fulfill their obligations under this Agreement due to causes beyond their control. 16. No actions, regardless of form, arising out of this Agreement may be brought by either party more than two years after the cause of actions has arisen, or in the area of non-payment, more than two years from the date of the last payment. 17. It is mutually agreed that any action at law, suit in equity or judicial proceeding for the enforcement of this Agreement or any provision thereof shall be instituted only in the courts of the Commonwealth of Pennsylvania. It is mutually understood and agreed that this Agreement shall be governed by the laws of the Commonwealth of Pennsylvania both as to interpretation and performance. 18. It is understood and agreed by the parties hereto that if any part, term, or provision of this Agreement is by the courts held to bo illegal or in conflict with any law of the state where made, the validity of the remaining portions or provisions shall not be affected and the rights and obligations of the parties shall be construed and enforced as if the Agreement did not contain the particular part, term, or provision that is held to be invalid. LICENSEE agrees that should it default in any of the covenants or agreements contained herein, LICENSEE shall pay all costs and expenses  cluding a reasonable attorney's fee which may arise or accrue from enforcing this Agreement, whether pursued by filing suit or before after judgment. ! LICENSE AGREEMENT ML10495 SEBAS001 (ADD) GAW (725) 11/93 This Ucense Agreement is made by and between SCT Public Sector, Inc. with principal offices at 962 Delaware Ave., Lexington, KY 40505, hereinafter referred to as 'SCT', and Organization Name, Address and Telephone Number: CITY OF SEBASTIAN P.O. BOX 780127 SEBASTIAN, FL 32974 (407) 589-5330 hereinafter referred to as 'UCENSEE.' This Ucense Agreement (LA-001), consisting of this page as well as Terms and Conditions of the Ucense Agreement (LA-TC- 001) and Terms and Conditions of Customer Support (CSA-TC-001), applies to the following software: SPECTRUM: CASH RECEIPTS (09-024-R5A) The Ucense Fee for the above Ucensed Software is $ 4,000. O0 The Initial Support Term Is 3 months from the date software is received by UCENSEE. Support Services during this term will be at Level 2, as defined on CSA-TC-001. Support Services, as defined on CSA-TC-001, will be automatically renewed upon expiration of the Initial Support Term and upon payment of the then current Support Fee by MCENSEE, for a period of twelve (12) months. This period, and all subsequent renewal periods, shall be known as the Support Term. The computer on which the Ucensed Software is to be used is known as the Designated Computer and is identified as follows: RS/6000, P.O. BOX 780127, (5.25") Computer Type and Location Serial Number UCENSEE ACKNOWLEDGES THAT HE/SHE HAS READ THIS AGREEMENT, INCLUDING ALL TERMS AND CONDITIONS AND AMENDMENTS OR ADDENDA, UNDERSTANDS IT AND AGREES TO BE BOUND BY THIS AGREEMENT. THE MCENSEE FURTHER AGREES THAT IT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN THE PARTIES AND SUPERSEDES ALL PROPOSALS OR PRIOR AGREEMENTS, ORAL OR WRITTEN, AND ALL OTHER COMMUNICATIONS BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT. ~ ACCEPTED BY: ACCEPTED BY: SCT Public Sector, Inc. Licensee ~T~¥ OP ~RRA~TAN DAVID E. ANDERSON Authorized Signature Lonnie R. ~owelI, "~4ayor Date Kathryn Mi" O'Halloran City Clerk Titlp LA-001 Rev, 11/92 D~ .......... APPROVED AS Charles Ian TO FORM AND CONTEN~ (LA-TC-O01) Page 1 of 2 Rev. 11/92 sc'r UCENSE AGREEMENT 'tERMS AND CONDBONS DEFINITIONS The term 'Licensed Software' in this Agreement shell mean all licensed date processing progress consisting of instructions or statements in machine readable form and any related licensed materials which may be provided such es, but not limited to, manuals, system documentation or written or verbal instructions provided for use in connection with the licensed data processing programs. 1. TERM This Agreement is effective from the date on which it is accepted by SCT and will remain in effect until termlneted by the LICENSEE upon one month's written notice, or by SCT as set forth in this section. This Agreement may be terminated by the'UCENSEE only when use of ell Licensed Software licensed hereunder is discontinued end all Licensed Software has been returned to SCT. SCT may terminate this Agreement upon written notice if the LICENSEE fails to comply with any of the terms end conditions of this Agreement. It is hereby agreed that if LICENSEE shell violate any covenant of this Agreement, then this Agreement and all right~ hereunder shall terminate and be et an end, as fully es if this Agreement had not been made,and all right~ and licenses hereunder shall revert to SCT; otherwise, this Agreement shell remain in force for 99 years. 2. LICENSE SCT hereby grants to LICENSEE a non-transferable end non-exclusive License to use the Licensed Software only on the Designated Computer identified on the fcce page of this License Agreement. The License is transferable to a backup computer when the Designated Computer or an associated unit required for use of the Licensed Software is temporarily inoperable, but only until opercble status is restored to the Designated Computer end processing on the backup computer is completed. If the period of transfer exceeds SO day~, LICENSEE must sc advise SCT, in writing. If the Designated Computer cannot be returned to operable status, SCT may approve · permanent transfer of the License to a new Designated Computer of the same type. 3. LICENSE FEE LICENSEE agrees to pay to SCT the one-time License Fee, as stated in the Ucen~e Agreement (M-LA-O01), upon receipt of appropriate invoice(s) from SCT. SCT agrees, upon receipt of this signed License Agreement end, either payment in full or the minimum deposit0 to furnish LICENSEE with one copy of Licensed Software. LICENSEE agrees, upon receipt of Licensed Software from SCI', to remit, within thil~y (30) days, the remaining balance of this License Fee, if any. 4. APPLICABLE TAXES In addition to the License Fee stated above, LICENSEE agrees to pay all applicable sales and/or use taxes resulting from this Ucense Agreement. S. WARRANTY AND LIMITATION OF LIABILITY SCT warrants that it has the right to market, distribute, support end maintain Licensed Software and that Licensed Software is warranted to conform to the operating specifications as outlined in the applicable software documentation. LICENSEE agrees that its SOLE AND EXCLUSIVE REMEDY, if Licensed Software warranted hereunder fails to conform to the applicable operating specifications end LICENSEE advises SCT of such failure in writing, during the term of the warranty, is for SCT to correct any error, malfunction or defect (as hereinunder defined), If, after repeated attempts, SCT is unable to correct the error, malfunction or defect, LICENSEE shall be entitled to recover an amount, commensurate with the nature and magnitude of the error or defect, up to the entire License Fee paid for the Licensed Software designated herein. (For the purpose of this Agreement, the term "error, malfunction or defect' shell mean onJy significant deviations from the operating specifications for the licensed Software es set forth in the applicable software documentation). SCT's liability for damages to the LICENSEE for any cause whatsoever, end regardless of the form of action, whether in contract or in tort, including negligence, shall be limited to the amount of the License Fee paid for the Licensed Software designated herein. In no event will SCT be liable for any damages caused by the LICENSEE's failure to perform the LICENSEE*s responsibilities, or for any lost profits,or other consequential damages, even if SCT has been advised of the possibility of such dcmeges. This warranty end the liability of SCT are void in the event that (1) the Licensed Software is not being used with the Designated Computer, (2) modifications have been mede to the Licensed Software, or (3) · current SCT Customer Support Agreement is not in effect for the Licensed Software. SCT will provide level 2 Support Services as out(ned in the SCT Customer Support Agreement Terms and Conditions document (CSA-TC-O01 } attached hereto end made · part hereof for the term identified es initial Support Term on the License Agreement (LA-O01). Upon conclusion of the Initial Support Term, SCT shall continue Support Services for Support Terms es defined in the SCT Customer Support Terms and Conditions (CSA-TC-O01), upon payment of the then current Support Fee to SCT. EXCEPT AS SPECIFICALLY PROVIDED HEREIN, THERE ARE NO WARRANTIES EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. 6. PROTECTION AND SECURITY OF LICENSED SOFTWARE LICENSEE agrees to use the Licensed Software only as provided in this Agreement and only during the term of Ucense granted by S'CT end further agrees not to provide or otherwise make available any Licensed Software to any person other than LICENSEE's employees without prior written consent from SCT, and then only on the condition that su=h employees agree that the Licensed Software or any part thereof is the property of SCT end is proprietary to SCT. (LA-TC-O01) Page 2 of 2 Rev. 11192 LICENSEE also agrees that the Licensed Software is the exclusive pmperb/of SCT, constitutes trade secrets of SCT0 and is proprietary to SCT and further agrees to protect the Licensed Software or any pert thereof from unauthorized disclosure by its agents, consultants, servants, employees, customers, or successors. In the event the I icenae granted hereunder is terminated, the above obligations of LICENSEE with respect to protection and security shall not terminate but shall continue for a period of five (5) veers following such te~nination of License. LICENSEE agrees to reproduce and include SCT*s proprietary, copyright end trade secret notice on any copies, in whole or in part, in any fom~. including partial copies and modifications of licensed Software. The LICENSEE further agrees to take appropriate action, by instruction, agreement or otherwise, with any persons pe~rnitted access to licensed Software ac as to enable the LICENSEE tO satisfy the LICENSEE's obligation under this Agreement. 7. MODIFICATION OF LICENSED SOFTWARE The parties agree that LICENSEE shall have the right to modify any Licensed Software supplied by SCT in machine readable form for LICENSEE's uae under this Agreement and on the Designated Computer, and may combine such modified Licensed Software with other programs or material to form an updated work, provided, however, upon discontinuation or termination of t~ghts under this Agreement, the Ucensod Software supplied by SCT shall be completely removed from the updated work and all such materials end copies shall be returned to SCT in accordance with the provisions of Section 9 of this Agreement. SCT shall be under no obligation, however, to make revisions or releases compatible with Uoensed Software which has been modified. $. CANCELLATION OF LICENSE The License granted hereunder may be canceled by SCT, if LICENSEE is in default in payment of any amount due under this agreement for a period of thirty (30) days after notice of default, or may be canceled at any time upon breach by the LICENSEE of any other covenant of this Agreement if such breach is not corrected within sixty (60) days after receipt of written notice thereof. LICENSEE's obligation to pay charges which have accrued and damages arising from its breach of this Agreement shall survive cancellation thereof. The remedies provided herein shall not be deemed exolualve but cheil be cumulative and shall be in addition to all other remedies provided by law and equity. No delay or omission in the exercise of any power or remedy herein provided or otherwise available to SCT shall impair or affect SCT's fight to exercise the same. Any extension or indulgence (which must be in writing) shall not otherwise alter or affect SCT's rights or obligations or be.deemed a waiver thereof..LICENSEE shall pay all applicable ooxts and reasonable attorney fees, if permitted, and to the extent permitted by law, for the collection of payments and other charges due under this Agreement and/or for the prosecution of LICENSEE for any breech of the covenants of this Agreement. 9. RETURN OF LICENSED SOFTWARE Within thirty ($0} days after the termination or cancellation for any reason, of the License granted hereunder, LICENSEE shall deliver to SCT all copies thereof in whatever form, including partial copies which may have been modified by LICENSEE, and execute a letter co certifying. Upon prior written authorization from SCT, LICENSEE may be permitted for e specified period thereafter to retain one copy of certain materials for record purposes. 10. GENERAL This Agreement is not assignable; neither the Ucense granted hereunder nor any of the Licensed Software or copies thereof may be sub-licensed, assigned or transferred by the LICENSEE. Any attempt to sub*license, assign or transfer any of the rights, duties or obligations under this Agreement is void. This Agreement may be modified by a written agreement duly signed by persons authorized to sign agreements on behalf of the LICENSEE and of SCT. and variance from the terms and conditions of this Agreement in any LICENSEE purchase order or other written notification will be of no effect. SCT is not responsible for failure to fulfill its obligations under this Agreement due to causes beyond its control. No action, regardless of. form, arising out of this Agreement may be brought by either party more than two years after the cause of action has arisen, or, in the area of nonpayment, more than two years from the date of the last payment. It is mutually agreed that any action at law, suit in equity or judicial proceeding for the enforcement of this Agreement or any provision thereof shall be instituted only in the courts of the Commonwealth of Pennsylvania. It is mutually understood and agreed that this Agreement shall be governed by the laws of the Commonwealth of Pennsylvania both as to interpretation and performance. It is understood and agreed by the parties hereto that if any part. term, or provision of this contract is by the courts held to be Illegal or in conflict with any law of the state where made, the validity of the remaining portions or provisions shall not be affected, and the rights end obligations of the parties shell be construed and enforced as if the contract did not contain the particular part, term, or provision held to be invalid. If the Licensed Software includes the proprietary property of a party other than SCT. said party shall have the same rights as SCT to enforce this Agreement. LICENSEE agrees that should he default in any of the covenants or agreements contained herein, LICENSEE shall pay all costs end expenses including a reasonable attorney's fee which may arise or accrue from enforcing this Agreement, whether pursued by filing suit or otherwise, or whether such costs end expenses are incurred with or without suit before or after judgment. I ' I I I I I I I I I i I I I I i I I I (C-~A-TC*O01) Page 1 of 2 (11/92) CERTAI .N DEFINITIONS. SCT CUSTOMER SUPPORT AGREEMENT TERMS AND CONDITIONS a. 'Ucen~ad Software" means the unmodified (except by enhancement and error correction releases provided by SCT under the terms of this Agreement) version of the computer programs developed by SCT, or e predecessor company. b. #E~ror Correetlon' means a change to the licensed Software required to allow the License Software to function as stated in the applicable user documentation. c. "User Documentation" means the operating instructions developed by SCT and applicable to the Uceneed Software. d. "Enhancement' means changes to the licensed Software which increase the funofiormlity or improve u~ability of the licensed Software. e. "Release' means · version of the Licensed Software which represents changes from the previous releases, and which constitute the currently-marketed version of the Licensed Software. f. "Software Syltem" means a family of products offered by SCT, to include Monitor, PSAS, SPECTRUM, SHIELD, or Banner. These Terms and Conditions apply to Licensed Software identified on SCT'.s License Agreement {L-O01 ) and to Customer Support identified on the SCT license Agreement or on the applicable SCT Customer Support Agreement (CSA-O01), end will remain in effect from the Support Commencement Date until the Support Expiration Date and will then be extended for annual periods upon payment of a Support Fee at then current rates. The UCENSEE may terminate this Agreement at the end of any support period by returning the invoice without payment. {See paragraph 6 of this Agreement.) SCT will provide Support at one of the two levels described below and selected by the LICENSEE during the hours of 8:30 a.m. and 6 p.m., Eastern Time, Monday through Friday {holidays excluded). For LiCENSEEs who select Support Level 1, SCT will, upon payment of the then current Support Fee: a) make available, at SCT's option end on SCT's schedule, error correction end enhancement releases to the object code and/or user documentation of the Licensed Software so as to bring it to a level equivalent with that of the currently marketed release of the Licensed Software; b) provide access to end use of the SCT HELPLINE service to: 1. clarify installation and operating instructions contained in the user documentation delivered with the product, and 2. assist in the identification of solutions to operating problems being experienced by the LICENSEE with the Licensed Software. HELPENE service is provided at SCT's normal hourly rate for HELPLINE service and is billed at a minimum of one quarter hour per ceil. c) provide problem determination and investigation on a 'best efforts' basis at the then current Level 1 hourly billing rate, and d) provide program error corrections, on the then current release of the Licensed Software, for verified program errors, at no additional charge, and on previous releases of the Ucensed Software at the then current hourly billing rate, and e) provide data repairs for LICENSEE files and records on e "best efforts' basis for all data problems whether CAUSED BY or NOT CAUSED BY the SCT Licensed Software at the then current hourly billing rate, and f) offer a discount of 25% to be applied toward an upgraded Computer System from SCT. The discount may be applied only toward applications software developed and supported by SCT. For LICENSEEs who select Support Level 2. SCT will, upon payment of the then current Support Fee: a) make available, at SCT's option and on SCT's schedule, error correction and enhancement releases to the object code and/or user documentation of the product so as to bring installed applications to a level equivalent with that of the currently marketed version of the product; b) provide access to and use of the SCT HELPLINE service to: 1. clarify installation and operating instructions contained in the user documentation delivered with the product, and 2. assist in the identification of solutions to operating problems being experienced by the LICENSEE with the product. HELPLINE service is provided at no additional charge to LICENSEE. c) provide problem determination, investigation, and program error correction for verified program errors on the then current release of the Licensed Software, at no additional charge to LICENSEE. Program error correction on previous releases will be performed at ?5% of the then current hourly billing rate. provide data repairs for LICENSEE files and records on e 'best efforts" basis for date problems CAUSED BY the SCT Licensed software at no additional charge to LICENSEE, and provide data repairs for LICENSEE files and records on e "best efforts' basis for data problems NOT CAUSED BY the SCT Licensed Software at the discounted rate of 75% of SCT's then current hourly billing rate. SCT includes in the category 'data .problems NOT CAUSED BY the SCT product" any data corruption or integrity problems caused by, but not limited to the following: 1) equipment malfunction or failure 2) failure of LICENSEE to follow procedures end/or instructions contained in the documentation provided with the licensed Software or in supplementary documentation provided by SCT 3) failure by LICENSEE to follow procedures and/or instructions contained in documentation provided by applicable hardware vendors or failure to follow accepted operating practices (for example, failing to routinely prepare backup date files, powering off or interrupting equipment while programs are executing, etc.) 4) use of programs, including program modifications, other than those provided by SCT with the Ucensed Software. offer a discount of 25% to be applied toward an upgraded Computer System from SCTo The discount may be applied only toward applications software developed and supported by SCT. d) e) f) (CSA-TC-O01) (11/92) Page 2 of 2 SCT will take due oars in responding to each request for Support Services to assure that LICENSEE is making proper use cf the I ioensed Software, and that the Licensed Software is operating properly. SCT will use its best efforts to correct any identified program errors, but does not guarantee results or warrant that ell errors will be corrected. 10. 11. 12. 13. 14. SCT expressly excludes the following services from the Support Services to be provided under this Agreement: a) b) c) d) e) f) g) h) System configuration and implementation Operator training On-Sits training and customer assistance visits Training classes Licensed Software modifications and/or enhancements other than those supplied as a pert of the periodic error correction end updates Support of any Licensed Software product other then the one indicated on the face page of this agreement. Operating system support Hardware repair or support, whether the hardware wes sold by SCT or by any other vendor. Payment, in full, of the appropriate Support fee must be received by SOT prior to Commencement of Service under this Agreement. An invoice for the applicable Support Fee will be submitted by SCT to LICENSEE prior to the termination date. To cancel the annual renewal, LICENSEE must return the invoice indicating intent to discontinue. All charges for shipments and mailings to SOT are the responsibility of the UCENSEE. All returns end mailings to the LICENSEE by SOT are vie regular U.S. Mail, or similar service as selected by SCT, unless specifically directed otherwise by the LICENSEE. All express or expedited charges are the responsibility of the LICENSEE, and will be billed separately to the LICENSEE if paid by SCT. Reinstatement of this agreement after having not been in force for 60 days or fewer will be made retroactive to the date that the Agreement expired with no reinstatement charge. Reinstatement of this agreement after having not-been in force for more than 60 days will incur · reinstatement charge, in addition to the normal Customer Support fee, of an amount equal to 5% of the annual Level 1 Support Fee for each month that this agreement had not been in force, up to a maximum of 50% of the Level 1 Support Fee. SCT's liability for damages to the LICENSEE for any cause whatsoever, and regardless of the form of actions, whether in contract or in tort, including negligence, shell be limited to any actual charges incurred for up to twelve months' Support Fee applicable to the Ucensed Software covered under this Agreement. Such Support Fees shall be those in effect when the cause of action arose. In no event shall SCT be liable for any damages caused by the LICENSEE's failure to perform the LICENSEE's responsibilities, or for any lost revenues or other consequential damages, even if SCT has been advised of the possibility of such damages, or for any claim against the LICENSEE by any party. THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. This Agreement is not assignable. None of the services granted hereunder nor any of the Licensed Software materials or copies thereof may be sub-licensed, assigned or transferred by the LICENSEE. Any attempt to sub-license, assign or transfer any of the rights, duties or obligations under this Agreement is void. Tho terms and conditions of this Agreement may be modified by SCT effective on the date of automatic renewal by providing the LICENSEE with one month's prior written notice. Any such modification will apply unless the LICENSEE exercises the option to terminate this Agreement. Any variation from these terms and conditions in any LICENSEE order or other modification will be of no effect. The LICENSEE represents that he is the LICENSEE identified on the License Agreement (LA-C01 ) or the Customer support Agreement (CSA- O01) and that LICENSEE is in compliance with the terms and conditions associated with the applicable License Agreement. SCT'e services provided outside the scope of the Level selected by the LICENSEE will be furnished on SCT's schedule end at SCT's applicable time and material billing rate and terms then in effect. 15. 16. 17. 18. Neither SCT nor LICENSEE are responsible for failure to fulfill their obligations under this Agreement due to causes beyond their control. No actions, regardless of form, arising out of this Agreement may be brought by either party more than two years after the cause of actions has arisen, or in the area of non*payment, more than two years from the date of the last payment. It is mutually agreed that any action at law, suit in equity or judicial proceeding for the enforcement of this Agreement or any provision thereof shall be instituted only in the courts of the Commonwealth of Pennsylvania. It is mutually understood and agreed that this Agreement shall be governed by the laws of the Commonwealth of Pennsylvania both as to interpretation end performance. It is understood and agreed by the parties hereto that if any pert, term. or provision of this Agreement is by the courts held to be illegal or in conflict with any law of the state where mede, the validity of the remaining portions or provisions shall not be affected and the rights and obligations of the parties shall be construed and enforced as if the Agreement did not contain the particular part, term, or provision that is held to be invalid. LICENSEE agrees that should it default in any of the covenants or agreements contained herein, LICENSEE shall pay all costs and expenses ( cluding a reasonable attorney's fee which may arise or accrue from enforcing this Agreement, whether pursued by filing suit or before after judgment. LICENSE AGREEMENT ML10496 SEBASO01 (ADD) GAW (725) 11/93 This Ucense Agreement is made by and between SCT Public Sector, Inc. with principal offices at 962 Delaware Ave., Lexington, KY 40505, hereinafter referred to as 'SCT", and Organization Name, Address and Telephone Number: CITY OF SEBASTIAN P.O. BOX 780127 SEBASTIAN, FL 32974 (407) 589-5330 hereinafter referred to as "UCENSEE.' This Ucense Agreement (LA-001), consisting of this page as well as Terms and Conditions of the Ucense Agreement (LA-TC- 001) and Terms and Conditions of Customer Support (CSA-TC-001), applies to the following software: SPECTRUM: BAR CODING SUBSYSTEM (03-037-R5A) The Ucense Fee for the above Licensed Software is $ 4, O00 o O0 The Initial Support Term is 3 months from the date software is received by UCENSEE. Support Services during this term w~3l be at Level 2, as defined on CSA*TC,-001. Support Services, as defined on CSA-TC-O01, will be automatically renewed upon expiration of the Initial Support Term and upon payment of the then current Support Fee by UCENSEE, for a period of twelve (12) months. This period, and all subsequent renewal periods, shall be known as the Support Term. The computer on which the Ucensed Software is to be used is known as the Designated Computer and is identified as follows: RS/6000, P.O. BOX 780127, (5.25") Computer Type and Location ~erial' NUmber UCENSEE ACKNOWLEDGES THAT HE/SHE HAS READ THIS AGREEMENT, INCLUDING ALL TERMS AND CONDITIONS AND AMENDMENTS OR ADDENDA, UNDERSTANDS IT AND AGREES TO BE BOUND BY THIS AGREEMENT. THE MCENSEE FURTHER AGREES THAT IT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN THE PARTIES AND SUPERSEDES ALL PROPOSALS OR PRIOR AGREEMENTS, ORAL OR WRITTEN, AND ALL OTHER COMMUNICATIONS BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT. ~ ACCEPTED BY: ACCEPTED BY: SCT Public Sector, inc. Licensee DAVID E. ANDERSON Date Authorized Signature ........... Lonnie R. Powe[1, Mayor ~TTEST: Kathryn M. 0'Halloran City Clerk Title LA-O01 Rev. 11/92 Date APPROVED AS TO FORM AND CONTENT:~ /~/ Nash, City At---~ey~ Charles lan (LA-TC-O01) Page 1 of 2 Rev. 11/92 SCT UCENSE AGREEMENT TERMS AND CONDITIONS DEFINITIONS The term "Licensed Software' in this Agreement shell mean all licensed data processing programs consisting of instructions or statements in machine readable form end any related licensed materials which may be provided such as, but not limited to, manuals, system documentation or written or verbal instructions provided for use in connection with the licensed data processing programs. 1. TERM This Agreement is effective from the date on which it is accepted by SCT end will remain in effect until terminated by the LICENSEE upon one month's written notice, or by SCT os act forth in this section. This Agreement may be terminated by the' LICENSEE only when use of all Licensed Software licensed hereunder is discontinued and all Licensed Software has been returned to SCT. SCT may terminate this Agreement upon written notice if the UCENSEE falls to ©omply with any of the terms end conditions of this Agreement. it is hereby agreed that if LICENSEE shall violate any covenant of this Agreement, then this Agreement and all rights hereunder shall terminate and bs et on end, os fully as if this Agreement had not been reader and all rights and licenses hereunder shell revert to SCT; otherwise, this Agreement shall remain in force for 99 years. 2. LICENSE SCT hereby grants to LICENSEE $ non*tronsfereble end non*exclusive License to use the Licensed Software only on the Designated Computer identified on the face page of this License Agreement. The License is transferable to · backup computer when the Designated Computer or an associated unit required for uae of the Licensed Software is temporarily inoperable, but only until operable status is restored to the Designated Computer end processing on the backup computer is completed. If the period of transfer exceeds 90 days, LICENSEE must so advise SCT, in Writing. If the Designated Computer cannot be returned to operable status, SCT may approve a permanent transfer of the License to · new Designated Computer of the same type. 3. LICENSE FEE UCENSEE agrees to pay to SCT the one-time License Fee, es stated in the Uoense Agreement (M-LA-C01), upon receipt of appropriate invoice(s) from SCT. SCT agrees, upon receipt of this signed Uoenss Agreement and, either payment in full or the minimum deposit, to furnish LICENSEE with one copy of Ucensed Software. LICENSEE agrees, upon receipt of Licensed Software from SCT, to remit, within thirty (30) days, the remaining balance of this License Fee, if any. 4. APPLICABLE TAXES In addition to the License Fee stated above, LICENSEE agrees to pay all applicable sales and/or use taxes resulting from this Ucense Agreement. 5. WARRANTY AND LIMITATION OF LIABILITY SCT warrants that it has the right to market, distribute, support and maintain Licensed Software and that Licensed Software is warranted to conform to the operating specifications as outlined in the applicable software documentation. LICENSEE agrees that its SOLE AND EXCLUSIVE REMEDY, if Ucensed Software warranted hereunder fails to conform to the applicable operating specifications and LICENSEE advises SCT of such failure in writing, during the term of the warranty, is for SCT to correct any error, malfunction or defect (as heralnunder defined). If, after repeated attempts, SCT is unable to correct the error, malfunction or defect, LICENSEE shall be entitled to recover an amount, commensurate with the nature and magnitude of the error or defect, up to the entire License Fee paid for the Licensed Software designated herein. (For the purpose of this Agreement. the term 'error, malfunction or defect" shall mean only significant deviations from the operating specifications for the Licensed Software as set forth in the applicable software documentation). SCT's liability for damages to the UCENSEE for any cause whatsoever, end regardless of the form of action, whether in contract or in tort, including negligence, shall be limited to the amount of the License Fee paid for the Licensed Software designated herein. In no event will SCT be liable for any damages caused by the LICENSEE's failure to perform the LiCENSEE's responsibilities, or for any lost profits,or other consequential damages, even if SCT has been advised of the possibility of such damages. This warranty and the liability of SCT ore void in the event that (1) the Licensed Software is not being used with the Designated Computer, (2) modifications have been made to the Licensed Software, or (3) a current SCT Customer Support Agreement is not in effect for the Licensed Software. SCT will provide level 2 Support Services as outlined in the $CT Customer Support Agreement Terms ~nd Conditions document (CSA-TC-O01 ) attached hereto end made a part hereof for the term identified as Initial Support Term on the License Agreement (LA-O01 ). Upon conclusion of the Initial Support Term, SCT shall continue Support Services for Support Terms es defined in the SCT Customer Support Terms and Conditions (CSA-TC-001), upon payment of the then current Support Fee to SCT. EXCEPT AS SPECIFICALLY PROVIDED HEREIN, THERE ARE NO WARRANTIES EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. 6. PROTECTION AND SECURITY OF LICENSED SOFTWARE LICENSEE agrees to use the Licensed Software only as provided in this Agreement end only during the term of License granted by $CT and further agrees not to provide or otherwise make available any Ucensed Software to any person other than LiCENSEE's employees without prior written consent from SCT, and then only on the condition that such employees agree that the Licensed Software or any part thereof is the property of SCT and is proprietary to $CT. (LA -TC-O01 ) Rev. 11/92 Page 2 of 2 LICENSEE also agrees that the Uoensed Software is the exclusive proper~ of SCT, constitutes trade secrets of SCT, and is proprietary to SCT and further agrees to protect the Licensed Sof~ware or any part thereof from unauthorized disclosure by its agents, consultants, servants, employees, customers, or successors. In the event the License granted hereunder is terminated, the above obligations of LICENSEE with respect to protection and security ahall not termirmte but ahall continua for a period of five ($) years following such termination of License. LICENSEE agrees to reproduce and include SCT's proprietary, copyright and trade secret notice on any copies, in whole or in part, in any form, including partial copies and modifications of Licensed Software. The LICENSEE further agrees to take appropriate action, by instruction, agreement or otherwise, with any persons permitted access to Licensed Software so as to enable the LICENSEE to satisfy the LICENSEE's obligation under this Agreement. 7. MODIFICATION OF LICENSED SOFTWARE The par~ss agree that LICENSEE shall have the right to modify any Licensed Software supplied by SCT in machine readable form for LICENSEE's use under this Agreement and on the Designated Computer, and may combine such modified Ucenead Software with other programs or material to form on updated work, provided, however, upon diaoontinuation or termination of rights under this Agreement, the LIcensed Software supplied by SCT shall be completely removed from the updated work and all such materials and copies shall be returned to SCT in accordance with the provisions of Section 9 of this Agreement. SCT shall be under no obligation, however, to make revisions or releases compatible with LIcensed Software which has been modified, 8. CANCELLATION OF LICENSE The License granted hereunder may be canceled by SCT, if LICENSEE is in default in payment of any-amount due under this agreement for a period of thirty (30) days after notice of default, or may be canceled at any time upon breach by the LICENSEE of any other covenant of this Agreement if such breach is not corrected within sixty (60) days after receipt of written notice thereof. LICENSEE's obligation to pay charges which have accrued and damages arising from its breech of this Agreement shall survive cancellation thereof. The remedies provided herein shall not be deemed exclusive but shall be cumulative and shall be in addition to all other remedies provided by law and equity. No delay or omission in the exercise of any power or remedy herein provided or otherwise available to SCT shell impair or affect SCT's right to exercise the same. Any extension or indulgence (which must be in writing) shall not otherwise alter or affect SCT's rights or obligations or be deemed a waiver thereof. LICENSEE shall pay all applicable costs and reasonable attorney fees, if permitted, and to the extent permitted by law, for the collection of payments and other charges due under this Agreement and/or for the prosecution of LICENSEE for any breach of the covenants of this Agreement. 9. RETURN OF LICENSED SOFTWARE Within thirty (30} days after the termination or cancellation for any reason, of the License granted hereunder, LICENSEE shall deliver to SCT all copies thereof in whatever form, including partJal copies which may have been modified by LICENSEE, and execute a letter so certifying. Upon prior written authorization from SCT, LICENSEE may be permitted for a specified period thereafter to retain one copy of certain materials for record purposes. 10. GENERAL This Agreement is not assignable; neither the Ucense granted hereunder nor any of the LIcensed Software or copies thereof may be sub-licensed, assigned or transferred by the LICENSEE. Any attempt to sub-license, assign or transfer any of the fights, duties or obligations under this Agreement is void. This Agreement may be modified by a written agreement duly signed by persons authorized to sign agreements on behalf of the LICENSEE and of SCT, and variance from the terms and conditions of this Agreement in any LICENSEE purchase order or other written notification will be of no effect. SCT is not responsible for failure to fulfill its obligations under this Agreement due to causes beyond its control. No action, regardless of. form, arising out of this Agreement may be brought by either party more than two years after the cause of action has arisen, or, in the area of nonpayment, more than two years from the date of the last payment. It is mutually agreed that any action at law, suit in equity or judicial proceeding for the enforcement of this Agreement or any provision thereof shall be instituted only in ~he courts of the Commonwealth of Pennsylvania. It is mutually understood and agreed that this Agreement shall be governed by the laws of the Commonwealth of Pennsylvania both as to interpretation and performance. It is understood and agreed by the parties hereto that if any part, term, or provision of this contract is by the courts held to be illegal or in conflict with any law of the state where made, the validity of the remaining portions or provisions shall not be affected, and the rights and obligations of the parties shall be construed and enforced as if the contract did not contain the particular part, term, or provision held to be invalid. If the Licensed Software includes the proprietary property of a party other than SCT, said party shall have the same rights as SCT to enforce this Agreement. LICENSEE agrees that should he default in any of the covenants or agreements contained herein, LICENSEE shall pay all costs and expenses including a reasonable attorney's fee which may arise or accrue from enforcing this Agreement, whether pursued by filing suit or otherwise, or whether such costs and expenses are incurred with or without suit before or after judgment. (CSA-TC-O01} Page 1 of 2 (11/92) .CERTAIN ~,,EFINITIONS. SCT CUSTOMER SUPPORT AGREEMENT TERMS AND CONDmONS a. "Li=en~od Software' means the unmodified (except by enhancement and error correction releases provided by SCT under the terms of this Agreement) version of the computer programs developed by SCT, or a predecessor company. b. "Eh'or Con~ction" means a change to the Licensed Software required to allow the License Software to function as stated in the applicable user documentation. c. 'User Documentation" means the operating instructions developed by SCT and applicable to the Licensed Software. d. 'Enhaneen~nt" means changes to the Licensed Software which increase the functionality or improve usability of the Licensed Software. e. "Release' means e version of the Lioensad Software which represents changes from the previous releases, and which constitute the currentiy-marketad version of the Licensed Software. f. "Software System' means a family of products offered by SCT, to include Monitor, PSAS. SPECTRUM, SHIELD, or Banner. These Terms and Conditions apply to Licensed Software identified on SCT's License Agreement (L-C01 } and to Customer Support identified on the SCT License Agreement or on the applicable SCT Customer Support Agreement (CSA-OO1). and will remain in effect from the Support Commencement Date until the Support Expiration Date and will then be extended for annual periods upon payment of a Support Fee at then current rates. The LICENSEE may terminate this Agreement at the end of any support period by returning the invoice without payment. {See paragraph 6 of this Agreement.) SCT will provide Support at one of the two levels described below and selected by the LICENSEE during the hours of 8:30 a.m. and 6 p.m., Eastern Time, Monday through Friday (holidays excluded). For LICENSEEs who select Support Level 1, SCT will. upon payment of the then current Support Fee: a) make available, at SCT's option and on SCT's schedule, error correction end enhancement releases to the object code and/or user documentation of the licensed Software so es to bring it to a level equivalent with that of the currently marketed release of the Licensed Software: b) provide access to and use of the SCT HELPLiNE service to: 1. clarify installation and operating instructions contained in the user documentation delivered with the product, and 2. assist in the identification of solutions to operating problems being experienced by the LICENSEE with the Licensed Software. HELPLINE service is provided at SCT'a normal hourly rate for HELPLINE service and is billed at a minimum of one quarter hour per call. c) provide problem determination and investigation on a "best efforts' basis at the then current Level 1 hourly billing rate, and d) provide program error corrections, on the then current release of the Licensed Software, for verified program errors, at no additional charge, and on previous releases of the Licensed Software at the then current hourly billing rate, end a) provide data repairs for LICENSEE files and records on a "best efforts" basis for ell data problems whether CAUSED BY or NOT CAUSED BY the SCT Licensed Software et the then current hourly billing rate, and f) offer a discount of 25% to be applied toward an upgraded Computer System from SCT. The discount may be applied only toward applications software developed and supported by SCT. For LICENSEEs who select Support Level 2. SCT will, upon payment of the then current Support Fee: a) make available, at SCT's option and on SCT's schedule, error correction and enhancement releases to the object coda and/or user documentation of the product so as to bring installed applications to a level equivalent with that of the currently marketed version of the product; b) provide access to end Use of the SCT HELPLINE service to: 1. clarify installation and operating instructions contained in the user documentation delivered with the product, and 2. assist in the identification of solutions to operating problems being experienced by the LICENSEE with the product. HELPLINE service is provided at no additional charge to LICENSEE. c) provide problem determination, investigation, and program error correction for verified program errors on the then current release of the Licensed Software, at no additional charge to LICENSEE. Program error correction on previous releases will be performed at 7S% of the then current hourly billing rate. d) provide data repairs for LICENSEE files and records on e "best efforts" basis for data problems CAUSED BY the SCT Licensed software at no additional charge to LICENSEE, and e) provide data repairs for LICENSEE files and records on a "best efforts" basis for data problems NOT CAUSED BY the SCT Licensed Software st the discounted rate of 75% of SCT'$ then current hourly billing rate. SCT includes in the category "data problems NOT CAUSED BY the SCT product" any data corruption or integrity problems caused by, but not limited to the following: 1) equipment malfunction or failure 2) failure of LICENSEE to follow procedures and/or instructions contained in the documentation provided with the Licensed Software or in supplementary documentation provided by SCT 3) failure by LICENSEE to follow procedures and/or instructions contained in documentation provided by applicable hardware vendors or failure to follow accepted operating practices (for example, failing to routinely prepare backup data files, powering off or interrupting equipment while programs ere executing, etc.) 4) use of programs, including program modifications, other than those provided by SCT with the Licensed Software. f) offer a discount of 25% to be applied toward an upgraded Computer System from SCT. The discount may be applied on_Ly._~ toward applications software developed and supported by SCT. (CSA-TC-O01) (11192) Page 2 of 2 SCT will take due care in responding to each request for Support Services to assure that LICENSEE is making proper use of the Licensed Software, end that the Ucensed Software is operating properly. SCT will use its best efforts to correct any identified program errors, but does not guarantee results or warrant that all errors will be corrected. 10. SCT expressly excludes the following aec/ices from the Support Services to be provided under this Agreement: e) System configuration and implementation b) Operator training c) On-Site training and customer assistance visits d) Training classes e) Licensed Software modifications and/or enhancements other than those supplied as a pert of the periodic error correction end updates f) Support of any Licensed Software product other than the one indicated on the face page of this agreement. g) Operating system support h) Hardware repair or support, whether the hardware was sold by SCT or by any other vendor. Payment, in full, of the appropriate Support fee must be received by SCT prior to Commencement of Service under this Agreement. An invoice for the applicable Support Fee will be submitted by SCI' to LICENSEE prior to the termination date. To cancel the annual renewal, LICENSEE must ~atum the invoice indicating Intent to discontinue. All charges for shipments and mailings to $CT are the responsibility of the MCENSEE, All returns and mailings to the LICENSEE by SCT are via regular U.S. Mail, or similar service es selected by aCT, unless specifically directed otherwise by the UCENSEE. All express or expedited charges are the responsibility of the LICENSEE, and will be billed separately to the LICENSEE if paid by $CT. Reinstatement of this agreement after having not been in force for 60 days or fewer will be made retroactive to the date that the Agreement expired with no reinstatement charge. Reinstatement of this agreement after having not been in force for more than 60 days will incur a reinstatement charge, in addition to the normal Customer Support fee, of an amount.equal to 5% of the annual Level 1 Support Fee for each month that this agreement had not been in force, up to a maximum of 50% of the Level 1 Support Fee. SCT's liability for damages to the LICENSEE for any cause whatsoever, and regardless of the form of actions, whether in contract or in tort, including negligence, shall be limited to any actual charges incurred for up to twelve months' Support Fee applicable to the Licensed Software covered under this Agreement. Such Support Fees shall be those in effect when the cause of action arose. In no event shall SCT be liable for any damages caused by the LICENSEE's failure to perform the LICENSEE's responsibilities, or for any lost revenues or other consequential damages, even if SCT has been advised of the possibility of such damages, or for any claim against the LICENSEE by any party. 11. THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. This Agreement is not assignable. None of the services granted hereunder nor any of the Uceneed Software materials or copies thereof may be sub-licensed, assigned or transferred by the LICENSEE. Any attempt to cub-license, assign or transfer any of the rights, duties or obligations under this Agreement is void. 12. 13. 14. The terms end conditions of this Agreement may be modified by SCT effective on the date of automatic renewal by providing the LICENSEE with one month's prior written notice. Any such modification will apply unless the LICENSEE exercises the option to terminate this Agreement. Any variation from these terms and conditions in any LICENSEE order or other modification wilt be of no effect. The LICENSEE represents that he ie the LICENSEE identified on the License Agreement {LA-O01 ) or the Customer support Agreement (CSA- O01) end that LICENSEE is in compliance with the terms and conditions associated with the applicable License Agreement. SCT's services provided outside the scope of the Level selected by the LICENSEE will be furnished on SCT's schedule and et SCT's applicable time and material billing rate and terms then in effect. 15. 16. 17. 18. Neither SCT nor LICENSEE are responsible for failure to fulfill their obligations under this Agreement due to causes beyond their control. No actions, regardless of form, arising out of this Agreement may be brought by either party more than two years after the cause of actions has arisen, or in the area of non-payment, more than two years from the date of the last payment. It is mutually agreed that any action at law, suit in equity or judicial proceeding for the enforcement of this Agreement or any provision thereof shall be instituted only in the courts of the Commonwealth of Pennsylvania. It is mutually understood and agreed that this Agreement shall be governed by the laws of the Commonwealth of Pennsylvania both as to interpretation and performance. It is understood and agreed by the parties hereto that if any part, term, or provision of this Agreement is by the courts held to be illegal or in conflict with any law of the state where made, the validity of the remaining portions or provisions shall not be affected and the rights and obligations of the parties shall be construed and enforced as if the Agreement did not contain the particular part, term, or provision that is held to be invalid. LICENSEE agrees that should it default in any of the covenants or agreements contained herein, LICENSEE shall pay ell costs end expenses  ncluding · reasonable attorney's fee which may arise or accrue from enforcing this Agreement, whether pursued by filing suit or before r after judgment. 1225 Main Street m SEBASTIAN. FLOMIDA 32955 TELEPHONE {407) $89-5330 m FAX (407) 589-5570 SUBJECT: ) Agenda Nm er: RECOMMENDATION FROM PLANNING AND' --~ i___ ) ZONING COMMISSION REGARDING ) Dept. Origin.. Community Development ~ PRIVATE VEHICLES ) - (Bc~= ) Date Submitted: 11/12/9~,, ) ) For Agenda Of: , 12/,0,.1/9B .... Approval For Submittal By: ) ) Exhibits: n ~ ) 1. Memo dated November 8, 1993 from ~/~ , / , / ) ~lanning & Zoning City Manager ~F~ ) ) EXPENDITURE AMOUNT APPROPRIATION REOUIRED: BUDGETED: REOUIRED: SUMMARY STATEMENT At its regular meeting of November 4, 1993 the Planning & Zoning Commission recommended the following: "A motion to limit the nmmber of vehicles per household to one per licensed driver plus two additional vehicles and all vehicles must be registered". . This recommendation is an attempt to eliminate the problem we currently have with individuals having over 15 automobiles on their lot. other members of Planning and Zoning Commission suggested various alternatives such as requiring a stockade fence to screen the vehicles or requiring compliance of this type of a problem such as this, if enough neighbors within 300 feet of the property sign a complaint. Staff acknowledges that the recommendation regarding the limitation of vehicles will Be controversial and if the City Council has a problem with this recommendation, staff would recommend at a minimum, to require all vehicles to be registered by the State of Florida. Page 2 ~EC0~MENDED ACTION Review the recommendation from Planning and Zoning Commission. City of Sebastian I POST OFFICE BOX 780127 [] SEBASTIAN, FLORIDA 32978 TELEPHONE (407) 589-5330 [] FAX (407) 589-5570 MEMORANDUM DATE: November 8th, 1993 TO: Bruce Cooper Director of Community Development FROM: Linda Kinchen ~ Planning and Zoning Secretary RE: Planning and Zoning Action The Planning and Zoning Commision at their special riverfront meeting on October 28, 1993 made the following motion: A motion to direct the Community Development Director to bring back code revision to allow parking lots as a conditional use for GMC and MCR was made by Mr. Shroyer second Mr. Falke and passed unanimously. Also, at their regular meeting on November 4th, 1993 the following motion was made: A motion to limit the number of vehicles per household to one per licensed driver plus two additional vehicles, and all vehicles must be registered made by Mr. Thompson second Mr. Barnes passed 6-1 with Mr. Goldstein voting no only because he doesn't agree with the number limitation. Should you have any questions or need any additional information, please feel free to contact me regarding this matter. Main Street [ SEBASTIAN, FLORIDA 32958 TELEPHONE (407) 589-5330 D FAX (407) 589-5570 i I SUBJECT: RECOMMENDATION FROM )Agenda Number: ~3. PLANNING & ZONING COMMISSION ) .... I REGARDING THE RIVERFRONT DISTRICT ) Dept. Origin: ~ommuni~y Deve..lopment REZONING . ) .... (BC~F~ Approval for Submittal By: ) Date Submitted: ..... 11~23/93 I ~/~1~ ~_~/~/~ / ) For Agenda Of: ..... 12/Q.1/93 City Manager ~f.)'~n/ ) · ' ' ) Exhibits: I ) 1. Memo dated 11/08/93 from P & Z ) 2. Proposed Riverfront Commercial I) Zoning District i EXPENDITURE AMOUNT . APPROPRIATION REQUIRED: BUDGETED. REQUIRED: i SUMMARY STATEMENT At its regular meeting of September 1, 1993~ the City Council directed staff I to send back the proposed new Riverfront Commercial Zoning District to the Planning & Zoning Commission for further discussion and review of the proposed uses. . i At its special meetxng of October 28, 1993, the Planning and Zoning Commission made the following motion: I "The Planning and Zoning Commission is reluctant to modify any land use regulations regarding the riverfront area without.a master plan and strongly urge the City Council to consider funding of creatxon of the master plan with Icosts to be determined at a later date" RECOMMENDED ACTION I Review the recommendation from Planning and Zoning Commission. City of Sebastian 1225 MAIN STREET n SEBASTIAN, FLORIDA 32958 TELEPHONE (407) 589-5330 n FAX (407) 589-5570 DATE: TO: FROM: MEMORANDUM November 8, 1993 Mayor and City Council Planning and ~.oninG~ Through: Bruce Cooper Director of Community Development RE: Riverfront District zoning The Planning and Zoning Commission at a special meeting on October 28th, 1993 made the following motion: "The Planning and Zoning is reluctant to modify any land use regulations reGardinG the Riverfront area without a master plan and strongly urge the City Council to consider funding of creation of the Master Plan with cost to be determined at a later date" made by Mr. Goldstein second by Mr. Falke passed unanimously. RC, Riverfront Commercial District. A. Purpose and intent. The RC district is established to implement comprehensive plan policies for managing land designated for riverfront commercial development. B. Permitted uses. In this district, as a permitted use, a building or premises may be used for only the below stated uses. All applicable provisions of this code shall be satisfied, including site plan review and performance criteria. Permitted uses: single-family dwellings, administrative services (public and not-for-profit), churches, synagogues and other places of worship, clubs and lodges (public and not-for- profit), cultural or civic activities, business and professional offices, general retail sales and services, limited commercial activities, medical services, parking lots, restaurants (except drive-ins), trades and skilled services, marine power sales and service (within enclosed buildings), bait and tackle shops, fish markets, marine retail and electronic shops. C. Conditional uses. In this district as a conditional use a building or premises may be used for only the following conditional uses upon compliance with applicable conditions stated in article vi and all other applicable provisions of this Code, including site plan review and performance criteria. The Planning and Zoning Commission shall ascertain if such conditions and provisions are satisfied. Appeal of such decisions shall be heard by the City Council. Conditional uses: Nursing homes (including rest homes and convalescent homes), protective services, public parks and recreation, public and private utilities, bars and lounges, enclosed commercial amusements, drive-through facilities (business and professional offices only), farmers markets, gasoline sales, hotels and motels, veterinary medical services, wholesale trades and services, transient quarters and child care facilities. D. Size and dimension criteria: Minimum lot size: None; except ten thousand (10,000) square feet for new subdivisions approved subsequent to the adoption of this ordinance. Minimum lot width: None; except seventy-five (75) feet for new subdivisions approved subsequent to the adoption of this ordinance. 3. Minimum lot depth: 125 feet. 4. Maximum building height: 35 feet. 5o Minimum living area: N/A. Minimum building setbacks from property lines: d. Rear yard: Ten feet; except thirty abutting a residential district. Maximum building coverage: 30 percent. Minimum open space (pervious surface): 20 percent. Front yard with sidewalks, curb and gutters: None required. Front yard without sidewalks, curb and gutters: 6 feet. Side yard: 5 feet; except ten 910) feet when abutting a residential district. (30) feet when rcdist.wp City of Sebastian 1225 MAIN STREET u SEBASTIAN, FLORIDA 32958 TELEPHONE (407) 589-5330 n FAX (407) 589-5570 AGENDA FORM SUBJECT: Proposed Ordinance No. 0-93-21 Airport Charter Revision 3/8/94 Referendum APPROVED FOR SUBMITTAL BY: Clty Manager: Agenda No. Dept. Origin City Clerk Date Submitted 11/23/93 For Agenda Of 12/1/93 Exhibits: Proposed O-93-21 Walden (FAA) Letter dated 1111189 Potter Letter dated 2/7/89 Nash Letter dated 2/20/89 Eisengrein (FAA) Statement dated 6/7/89 Nash Letter dated 6/9/89 Eisengrein Letter dated 6/12/89 Cutler Letter dated 6/8/89 Agreement in Principle Order - Snell vs. City EXPENDITURE REQUIRED: AMOUNT BUDGETED: APPROPRIATION REQUIRED: SUMMARY STATE~fENT The City Council, at its November 10, 1993 Regular Meeting, approved the Airport Master Plan and directed the City Attorney to draft an ordinance to place a referendum question on the March 8, 1994 ballot to amend the City Charter. Proposed Ordinance No. 0-93-21 is submitted for your review. We have also included documentation for those of you who are not familiar with the 1989 charter revision referendum which resulted in the "Agreement in Principle" between the City of Sebastian and Federal Aviation Administration. The schedule for placement of the refendum will require first reading of Ordinance No. O-93-21 at the December 15, 1993 Regular Meeting, and public hearing and final adoption on January 12, 1994. Additional documentation relative to the 1989 charter revision, "Agreement in Principle" and Airport Master Plan is available for review in the City Clerk's office. RECOMMENDED ACTION Review proposed Ordinance No. O-93-21. I I i I i I i I I I I I I i I I I AN ORDINANCE OF THE CITY OF SEBASTIAN, INDIAN RIVER COUNTYt FLORIDA, SCHEDULING AN ELECTION To SUBMIT' A REFSRENDUH ISSUE 90 THE ELECTORATE IN ORDER TO AMEND PORTIONS OF THE CITY CHARTER; PROVIDING FOR REVISIONS TO. SECTION 1.02 OF THE CITY CI~RTER TO DELETE PORTIONS THEREOF WHICH WOULD INTEItFERE WITH THE IHPLEMENTATION OF THE HASTER PLAN FOR THE SEDASTIAN HUNICIPAL AIRPORT; PROVIDING FOR THE DELETION OF THE SECOND FULl. PARAaRAPH OF PARAGRAPH (7) OF SECTION 1.02 OF THE CITY CHARTER; PROVIDING FOR THE DELETION SUBSECTIONS (7.1), (7.2), (7.3), ~.4}, (7.5) ]tND (7.6) OF SECTION 1.02 OF THE CITY CHARTER IN THEIR ENTIRETIES; PROVIDING FOR THE M~NNER IN WHICH SUCH ELECTION SHALL BE CONDUCTED~ PROVIDING FOR THE TIME AND PLACES FOR HOLDING SUCH ELECTION~ ESTABLISHING THE FORM OF TH~ BALLOT FOR SUCH ELECTION~ DIRECTING THE CITY CLERK TO PROVIDE TaE SUPERVISOR OF ELECTIONS WiTH A COPY OF THE ORDINANCE~ PROVIDING FOR A PUBLIC NOTICE OF SUCH ELECTION; AND PROVIDIN~ FOR AN EFFECTIVE DATE. WHEREAS, Section 166.031 of Florida Statutes provides that the governing body of a municipality may submit to the electors of ~hat municipality a proposed amendment to all or part of its charter~ and WHEREAS, the City Council of the City of Sebastian, Indian River County, Florida, has determined that certain rev~.sions should be made =0 the City Charter in order to delete provisions contained ~herein which would impair the ability of the City to implement the Master Plan for the Sebastian Municipal Airport: and WHEREAS, the City Council desires ~o submit the amendment~ to the City Charter for ratification by ~he electors of the C~ty of Sebastian, Indian River County, Florida. NOW, THeREFORe, BE IT ORDAINED ~Y THE CITY COUNCIL OF THE CITY OF B~BASTIAN, INDIAN RIVER COUNTY, FLORIDA, a~ follows: Section 1. That the existing Section 1.02 of the City Charter of the city of Sebastian, Florida, is hereby amended by deleting the second full paragraph of Paragraph (7) of Sect'ion 1.02 in its entirety whereby, hereafter, Paragraph (7) of Section 1.02 shall read as follows: "(?} Airports. To purchase, acquire, take, hold, establish, construct, equip, maintain and operate municipal airports, landing fields, hangars, aviation terminals and administration buildings, runways, depots, warehouses, garages, repair shops, oil and fuel tanks or stations, or other necessary appurtenances for the use of airplanes and other aircraft, and to acquire or lease any and all real property within the corporate limits, or within ten (10) miles of the boundaries thereof, for such purpose; to set apart and use for such purpose any real property owned or leased by the city, whether or not originally acquired by condemnation, purchase or lease for another' purpose; to adopt and enforce reasonable rules and regulations governing the use of such municipal airpor%s; to employ airport directors, airport managers, employees or agents in connection with such operation; to impose fees or charges in connection with the use of such airport or airport facilities; to sell gasoline or other 11/23/93 16:23 ~{' 467 951 3741 FRESE, NASH et al ~ 05 supplies necessary in connection with the operation of such airports; to provide lounges, eating places, refreshment parlorn and other facilitates in connection with such municipal airports; to let or lease to private persons or corporations portion~; of the said airports for building sites, hangar space, concessions or other uses for a term not to exceed twenty (20) years; to prescribe and promulgate reasonable rules and regulations for the operation of such airports, and to exercise supervision and control of such operation; to accept and receive grants from ~he state and federal governments and any body politic for the construction, maintenance, operation and management of such airpgrt facilities." ~gction 2. That Subparagraphs (7.1), (7.2), (7,3), (7.4), (7.5) and (7.6) of Section 1.02 of the City Charter of the City of Sebastian, Florida, are hereby deleted in their entirety. ~L9~1_~. An election is hereby called and scheduled to be held on March 8, 1994, to determine whether the revisions to the City Charter of the City of Sebastian, Florida shall be approved by a majority of the votes cast in such election, in which the qualified electors residing in the City of Sebastian shall participate. ~. The places of voting in such election shall be the usual places of voting in the City of Sebastian, Florida, in the regular election as determined under the applicable provisions 11/23/93 16:23 ~ 407 951 3741 FP~SE, NASH e% al ~ 06 of Florida law, which arc currently a~ follows: PRECINCT POLLING PLACE Precinct 12 .......................... Tl~e S~basti. an Community Center 180b Nortl~ Central Avenue Precinct 14 .......................... First Church of the Nazarene 50 South Wimbrow Drive Precinct 15 .......................... The North Indian River County Library 1001 Fellsmere Road (CR 512) Precinct 16 .......................... Calvary Baptist Church 123 Thunderbird DriYe ~. The purpose of this election shall be to present a referendum issue to the electors of the City of Sebastian of whether or not to adopt revisions to the City Charter. The ballot shall be substantially in the following form: CITY OF SEBASTIAN, FLORIDA Referendum Referendum ND. 1: Amending City Charter to delete provisions interfering with implementation of Sebastian Municipal Airport Master,Plan. Shall the City of Sebastian amend Section 1.02 of the City Charter by deleting the second full paragraph of Paragraph (7) and deleting Sttbparagraphs (7.1), (7.2), (7.3), (7.4}, (7.5) and (7.6) in their entireties, to facilitate the implementation of the Master Plan for the Sebastian Municipal Airport by removing provisions of the City Charter that are in conflict with the provisions o£ the Master Plan? 6/\ Yes for Approval No for Rejection 4 I I I I I I I I I I I I I I I i I 11z25/93 16:24 407 951 3741 FRESE, NASH et al Sectl on 6. Effective Date. 'I'1%].~ Ordinance shall become effective immediately upon its adoption. The foregoing Ordinance was mov¢:d for adoption by Council Member motion was seconded by Council Member and, upon being put to a vote, the vote was as follow~-: Mayor Lonnie R. Powoll Vice-Mayer Frank Oberbeck council 'Member Carolyn Corum Council Member Norma J. Damp Council Member Robert Frceland The Mayor thereupon declared this ordinance duly passed and adopted this day of , 1993. CITY OF SEBASTIAN, FLORIDA ATTEST: By: Lonnie R, Powell, Mayor Kathryn M. O'Halloran, City Clerk (SEAL) cMC/AAE I HEREBY CERTIFY that notice of public bearing on this Ordinance was publi~hed in the Veto Beach Press Journal as required by State Statute, that one public hearing was held on this Ordinance at 7:00 p.m. on the day of , 1993, and that following said public hearing this ordinance was passed by the City Council. Kathryn M. O'Halloran, CMC/AAE City Clerk (SEAL) Approved as to Form and Content: Charles Ian ~ash, City Attorney 5 ~] O7 U.S. Del:x:nrnen~ o~ 'lransDonat~on Fecleral Aviation AclministratiOn Charles Ian Nash, City Attorney Nash & Fallace, P.A. 930 S. Harbor City Blvd., Ste. 505 Melbourne, Fl. 32901 Dear Mr. Nash: 800 tnoePenaence Ave, S W Wasmngton, D C 2059; This responds to your January 5, 1989 to my staff requesting an opinion regarding a referendum that will be presented to the City Council on January ll, 1989, for placing on the ballot for an election in March 1988. You asked us to review the proposed referendum and the deed for the property that the United States granted to the City for Sebastian Airport, and to answer the following questions: 1. Will passage of the referendum jeopardize the title to the airport land currently held by the City of Sebastian? 2. Do any of the provisions of the referendum violate the United States Constitution or any provisions of Federal law? Please understand that the FAA wishes to work with important local concerns to avert compliance problems rather than ~ea! with sister governments in an enforcement posture. I hope you will review our comments in this spirit. As a prelude to our response to your two questions, it should be noted that the deed that you submitted to us contains two provisions of immediate importance relative to the proposed airport use restrictions. The first is the requirement that the airport be used for airport purposes "on reasonable terms and without unjust discrimination and without the grant or exercise of any exclusive right." P.258, par. (1). The second is the requirement that the airport remain available for the non-exclusive use of Government aircraft. P.260, par.(2). Given these two covenants in the deed, our immediate concern is the possible impact of.two proposed airport use restrictions. 'These involve the imposition of a noise limit that would exclude from the airport all aircraft that exceed 65 dBA under FAA Advisory Circular No. 36~3E (para.7.4). The second is a proposed airport user fee, apparently with no upper limit specified, of "no less than ~5.00" for each aircraft operation (para. 7.5). 2 Both of these proposed restrictions should be factually justified through analysis in order to be determined to be reasonable. Thus, the user fee must be supportable in relation to the revenues to be realized and the costs that must be covered by those revenues. The proposed amendment appears to simply direct the adoption of a user fee within 90 days without any study or analysis to determine the justification for any particular fee schedule. If the FAA were to receive a complaint concerning the new fee, our first response would be to turn to the City and request the factual basis for the fee schedule. Here, again, our goal would be to avoid a compliance problem if possible. The noise limitation must be shown to be reasonable as well. Establishment of the reasonableness of any proposed aircraft noise limit involves the following: first, it must be established objectively that there is a noise problem at the airport that requires the exclusion of aircraft because of noise. This step can be pursued through the development of noise contours that incorporate data concerning operations at the airport and the contribution that these operations make to noise levels over airport neighbors. The second phase would be to select a proposed noise limitation that is shown by analysis to be needed to respond to the documented noise problem. The third, and very important, step needed to establish the reasonableness of a proposed noise rule would be to determine the impacts of the proposal on air commerce and to ensure that these impacts are (1) reasonable in relation to the noise abatement objectives and (2) nondiscriminatory as between classes of airport user. There is nothing in the information that we have received to indicate that the proposed noise limitation has been reviewed under any of these criteria. You may not be aware that the FAA has issued a regulation that is not mandatory but that is available to assist airports in developin~ noise compliance programs that are responsive to all affected interests. This regulation provides guidance on all phases of the noise program development, from the submission of noise contours to the proposal of airport use restrictions and land use policies. The regulation is Part 150 of the Federal Aviation Regulations (14 C.F.R. Part 150.) I urge that the City take advantage of that comprehensive regulation prior to taking action to exclude air commerce from the airport for noise purposes. Assuming that our understanding is correct and that neither of these proposed operating restrictions has been developed through analysis and consultation with airport users, we are very concerned that action by the City Council to adopt paragraphs 7.4 and 7.5 may place the City in violation of the above-cited deed covenants. 3 In particular, I am a~vised that the proposed noise limit, 65 dBA, would effectively eliminate a large number of aircraft types that make up the bulk of the fleet capable of using the airport and may therefore severely limit air commerce access to the airport. With this background, I turn to the question of the impact of the proposed operating restrictions on the City's title to the airport. As you know, the deed that you furnished provides for reversion to the United States in the event of noncompliance with any of the deed terms and conditions. P. 262, para. (2)). Reversion, however, is the ultimate sanction. It is the FAA's policy to explore all possible alternatives to reversion if a noncompliance situation were determined to exist. Rather than speculate concerning the effects of that far- reaching sanction, it is our hope that the potential of reversion can be avoided through constructive action to ensure that any proposed noise limitation and fee schedule are well studied and determined to be reasonable and nondiscriminatory. Finally, with respect to your inquiry concerning potential Constitutional implications, the question would again turn on whether the proposed airport use restrictions would in fact unreasonably burden air commerce. For example, the Second Circuit has stated that "indeed, the commerce clause of its own force prohibits local regulations that exceed limits necessary to vindicate a recognized state interest." British Airways Board v. Port Authoritv.pf N~? York and New Jersey, 558 F.2d 75 ~-~), 85, n. 3, citing Florida Avocado Growers v. Paul, 373 U.S. 132 (1963). For a further discussion of the Cons'titutional limitations on the authority of airport proprietors to restrict access, and the close relationship between the need for even-handed regulation and the Commerce Clause, see, for example, National Aviation v. City of Hayward, 418 F. Supp 417 (N.D. Cal. 1976). The cases make it clear that a City's status as proprietor of an airport, while enabling it to issue reasonable airport noise regulations, does not immunize it in any way from Constitutional considerations related to the impacts of its restrictions on air commerce. I would like to thank you for contacting us before this matter is presented to the City Council. However, due to the very short time for review, we have not had an opportunity for an adequate review of proposed airport use restrictions of the magnitude contained in the proposed amendment language. In particular, there has been no opportunity for detailed review of the actual impact of the proposed airport use restrictions on air commerce interests. Please accept this reply with that understanding. 4 It should also be noted that, because of time constraints, our response is limited to the documents that you furnished us and does not reflect other documents that may be a part of the history of relations between the airport and the FAA. Nor does it indicate FAA acceptance of provisions that are not discussed herein. In order to ensure compliance with the airport property deed restrictions and the Surplus Property Act of 1944 (58 Stat. 765), and to permit consultation to resolve any issues that may arise in this matter, the FAA respectfully requests that action on the proposed airport use restrictions be postponed and that discussion with the FAA be initiated. If I can assist in any way in this matter, please let me know. Sincerely, ~ ~ Gregory .~. Qalden Chi~Co~nsel February 7, 1989 Charles Ian Nash, Esq. 930 South Harbor City Boulevard Riverside Center, Suite 505 Melbourne, Florida.32901 Re: Sebastian Municipal Airport Our File No. 89-081 Dear Mr. Nash: You have retained me to render an opinion as to the validity of certain proposed amendments to the Charter of the City of Sebastian relating to the municipal airport owned and operated by the City. Specifically, you have asked me to review these proposed amendments in the light of applicable federal statutes, federal Constitutional provisions, the provi- sions of the quit-claim deed whereby the City acquired title to the Airport and the provisions of any federal grant agreements effecting the Airport. ! have not addressed any issues relating to the validity of the proposed amendments under the Florida Constitution, the Florida Municipal Home Rule Powers Act, the provisions of any lease agreements between the Airport and private parties or the provisions of any bond covenants affecting the Airport. It is my understanding that you will address these issues. their validity relative to the following: 1. The Federal Aviation Act of 1958; 2. The Surplus Property Act of 1944; 3. In examining the proposed amendments, I have considered The United States Constitution, specifically the Commerce Clause, the Supremacy Clause and the Equal Protection Amendment; Charles Ian Nash, Esq. February 6, 1989 Page 2 The provisions of the quit-claim deed recorded in Official Records Book 62, Page 255, Public Records of Indian River County, Florida, which deed conveyed the property from the United States to the City of Sebastian; The grant assurances and agreements for airport improvement programs, which assurances are published in Volume 53, Number 22 of the Federal Register; and The Airport and Airway Improvement Act of 1963, as amended by the Airport and Airway Safety and Capacity Expansion Act of 1987. In rendering these opinions, I have relied upon following assumptions of fact: the It is lay understanding that no formal noise comparabi- lity studies, safety studies or other studies rela- tive to the capacity of the airport and its comparabi- lity with the surrounding area have been conducted; I understand that the airport has from time to time received grants from the Federal Aviation Administra- ation ("FAA") under the Airport and Airway Improve- ment Act, as amended; and 3. I understand that the golf course is located on airport property and that revenues from the golf course are deposited in the airport Revenue Fund, after provision for such other payments as are required under the terms of the bonds which were issued to finance construction of the golf course. The proposed Amendments to the City Charter can be briefly summarized as follows: Paragraph 7.1 of Section 1.02 would require the City to use only airport revenues to operate, would main- tain and improve the Airport; Paragraph 7.2 of Section 1.02 would prohibit borrow- ing any funds for maintaining, operating or improving the airport without a referendum; Charles Ian Nash, Esq. February 6, 1989 Page 3 Paragraph 7.3 of Section 1.02 would prohibit the City from seeking a grant from the state or feder al government to improve the airport without an Opinion from the City Attorney that the acceptance of such grant Would not conflict with Paragraph 7 of Section 102 of :he Charter, as amended; 4. Paragraph 7.4 of Section 1.02 would require the City to enact a noise regulation to restrict use of the airport to aircraft producing noise of less than sixty five decibels. That proposed paragraph would also impose a $1,000.00 penalty for violation of this rule and would require that the penalty be deposited in the general funds of the City; 5. Paragraph 7.5 of Section 1.02 WOuld require the City to adopt a landing fee of at least $5.00 per aircraft operation, including each "touch and go as an operati on; ,, 6. Paragraph 7.6 of Section 1.02 would reguire the City to impose all these restrictions on anyone acquiring rights in the airport after their adoption; and 7. Paragraph 10 would be added to Section 1.02 of the Charter and Would provide that any revenues from the golf course in excess of those needed to operate the golf COurse Would not be USed to Operate, maintain or develop the airport. The airport was conveyed to the City pursuant to the authority granted by the Surplus Property Act of 1944. The pro- visions of the Surplus Property Act which are, in my opinion relevant to your concerns are as follows:, 1. Subsection (2) (A) of Section 1622 of the Act provides that no property disposed of in the Subsection shall be used, leased or disposed of for other that airport purposes without the written consent of the Adminis- trator of the FAA, which shall be granted only if the FAA Administrator determines that the property can be Used for other than airport purposes without mate- rially adversely affecting the development and the operation of the airport. Charles Ian Nash, Esq. February 6, 1989 Page 4 Subsection (H) of that section provides that in the event any terms upon which the property.is disposed of are not complied with, all of the property shall, at the option of the United States, revert to the United States. Section 1622(B) provides that the Administrator of the FAA shall have the sole responsibility for deter- mining compliance with the terms of any deed conveying this property. The quit-claim deed itself contains several salient provi- sions. The deed provides that the City, by accepting the deed, agrees that the transfer of the property is subject to the restrictions set forth in the deed. The deed also provides that the property transferred shall be used for "...public airport purposes for the use and benefit of the public, on reasonable terms and without unjust discrimination ..." The deed also provides that the entire landing area shall be main- tained for the use and benefit of the public at all times in good and serviceable condition, to assure its efficient opera- tion. The deed further provides that no property transferred by the deed shall be used, leased, sold or disposed of by the City for other than airport purposes without the written consent of the Administrator of the FAA, which consent shall be granted only if the Administrator determines that the property can be used or disposed of for other than airport purposes with- out materially and adversely affecting the development, improve- ment, operation or maintenance of the airport. The deed further provides that, by accepting the deed, the City agrees that in the event of violation of any the conditions of the deed, the property shall revert, at the option of the FAA, to the federal government following 60 days demand to cure such default. The grant assurances published in the Federal Register cited above contain several provisions that may be relevant. Section 22 requires the grant recipient to make the airport available as an airport for public use on fair and reasonable terms and without unjust discrimination, to all types, kinds and classes of aeronautical uses. The grant recipient n~y pro- hibit or limit aeronautical use only if the action is necessary for the safe operation of the airport when necessary to serve the civil aviation needs of the public. The assurances also Charles Ian Nash, Esq. February 6, 1989 Page 5 require that the airport maintain fee and rental rates consis- tent with the foregoing requirements which will make %he air- port as self sustaining as possible under the circumstances. The grant assurances require that all revenues generated by the airport will be expended by it for the capital or operating costs of the airport and other local facilities which are owned and operated by the airport and which are directly and substan- tially related to the actual air transportation of passengers or property or for noise mitigation purposes on or off the airport. The grant assurances further require ~hat the airport have an up-to-date airport layout plan and that any changes or alterations in the airport be in conformity with the airport layout plan. The Airport and Airway Improvement Act requires, among other things, that the airport to which grant money has been given be available for public use on fair and reasonable terms and without unjust discrimination. There are a number of cases wherein the courts have addressed the rights of the airport to regulate, in the interest of noise abatement, the types of aircraft which may use an airport. Prior to addressing the proposed amendments, it would be useful to review some of the more relevant cases. In the case of Bri_ ti sh Airways Board vs. The Port Authorit of New York and New Jerse , ~r. ~rport proprietors have the power to regulate the types of aircraft which may use an airport so long as these regulations do not unjustly discriminate among aircraft or unduly burden interstate commerce. This case, commonly known as Concorde I, recognized the the Port Authority of New York and New 'JerSey could establish a temporary ban on the use of the Concorde, and even permanently ban aircraft used by only a few carriers, provided that the regulation was "reasonable, non-arbitrary and non-discriminatory ,, The court went on to say: - "It is clear to us that the Port Authority is vested only with the power to promulgate reasonable, non-arbitrary and non-discriminatory regulations that establish acceptable noise levels for the airport and its immediate environment. Any other conduct by an aiport proprietor Charles Ian Nash, Esq. February 6, 1989 Page 6 would frustrate the tion al ly burden the 558 Fed 2d at 84. statutory scheme and unconstitu- commerce Congress sought to foster." Jerse , 43 ~ ork and New Fed. 2d 1004. (2d Cir. 1977). In the Concorde II case, the Por4~ Authority,s ~nterim ban on the Concorde, whic~Lq~ad been imposed pending promulgation of a non-discriminatory noise regulation c. oncerning that aircraft, was overturned because of the delay xn developing such a regulation. The court held that "...the failure of the Port Authority to develop that regulation was · unreasonable, discriminatory and unfair and an impingement on commerce and on the national and international interests of the United States." In the case of Santa Monica Air orr Association vs. The C~ity . of Santa Monica, 4 lrmed 659 Fed '2d' '100 (9'~h cir. 1981), the City of Santa Monica enacted an ordinance imposing a night curfew banning certain touch-and-go, stop-and-go and low approach operations, preclud- ing helicopter flight training and low approach operations, pre- cluding jets and imposing sanctions for take-offs or landings exceeding a single event noise standard. Each of these ordinances was challenged on the ground that such regulations had been preempted by the federal government and on equal pro- tection grounds and as an impermissable burden on interstate commerce. The court upheld all of the ordinances except the ban on jet aircraft. The court struck down this regulation as an undue burden on interstate commerce. The court structured a three-step test to determine whether a regulation constituted an undue burden on interstate commerce which essential ly balanced the burden imposed against the local interests support- ing the regulation. In the case of United States vs. State of New York, 522 F. Supp. 255 (NDNY 19'8'2) .... aff"~r~ed 70'1 Fed ~'~ '92 (2d ~i~. 1983), cert. denied 104 S. Ct. 1907 (1984), the United States sought to enjoin an 11 P.M. to 7 A.M. curfew on all aircraft opera- tions at the Republic Airport. In an opinion awarding the United States a preliminary injuction, the court held that the curfew was overbroad, unreasonable and arbitrary because it Charles Ian Nash, Esq. February 6, 1989 Page 7 extended to all aircraft, regardless of the degree of accompany- ing emitted noise. No effort had been made to tailor the curfew to legitimate local noise concerns. In the case of 571 F. Supp. 786 (SDNY United States vs. Count of Westchester owner of the Wes tchester Airport, lmplemented a mandatory curfew which precluded all airport operations between 12 midnight and 7 A.M. The court found this regulation to be unreasonable, arbitrary, disciminatory and overbroad because it banned all night operations regardless of accompanying emitted noise. , The foregoing cases reflect efforts by airport proprietors to control access as a result of noise problems, airfield space problems and ground access problems. In the case of noise- based limitations, airport proprietors have tried several diffe- rent courses. One course is to limit the number of aircraft operations. A second has involved establishment of a ceiling on permissable noise Using a cumulative noise impact method- ology. Another course has been to require and encourage the use of quieter aircraft, thereby minimizing cumulative noise without unnecessarily restricting passenger, cargo or general aviation activity. The United States government, through the Department of Transportation and the Federal Aviation Adminis- tration, has frequently joined in challenges to access and capacity limitations. The proposed paragraph 7.1 of Section 1.02 would not, on its face, constitute a violation of any statutory or constitu- tional provision nor would it violate the terms of the quit- claim deed. That is to say, neither the statutes nor the terms of the deed affirmatively require the City to spend non-airport revenues to support the airport. However, the terms of the quit- claim deed and the Surplus Property Act of 1944 do require the City to maintain to the property for "...public airport uses for the use and benefit of the public...,, and to maintain the landing area for the use and benefit of the public in "good and serviceable Condition . ,, Thus, if the effect of the pro- posed amendment would '~e to leave the airport without suffi- cient funds to maintain the airport and, specifically, the land- ing areas, in good and serviceable condition, the effect would be to force the airport to violate the Surplus Property Act of 1944 and the terms of the quit-claim deed. If, on the other Charles Ian Nash, Esq. February 6, 1989 Page 8 hand, the airport generates sufficient revenues without resort to the City general fund, then the charter provision would not render the City in violation of the deed covenants or the provi- sions of the Surplus Property Act of 1944. Similarly, proposed Paragraph 7.1 of Section 1.02 would not, on its face, violate the provisions of the deed or the Surplus Property Act. I do, however, have doubts as to the lega- lity of the delegation of this legislative function under :he Florida Constitution and the Florida Municipal Home Rule Powers Act. I ~nderstand that you are researching that issue. Although Paragraph 7.2 would not, on its face, violate the statute or the quit-claim deed, the effect of the amendment could well be to force the City to violate the terms of the statute and deed. If, by refusing to permit borrowing funds for the main- tenance of the airport, the airport is unable to maintain the airport as required by the deed and Surplus Property Act, the City runs the danger of the property reverting in accordance with the terms of the deed and statute. Paragraph 7.3 of Section 1.02 would, again, not, on its face, violate the terms of the statutes or any federal constitu- tional provisions or the terms of the quit-claim deed. However, once again, if the effect of the inability to seek grant monies would be to render the City unable to properly maintain the airport, the effect would well be to force the City to violate the terms of the Surplus Property Act and the quit-claim deed. Paragraph 7.4 of Section 1.02 is, in my opinion, subject to substantial challenge on several grounds. I believe that there are questions under the state law as to the ability of the City to impose a $1,000.00 penalty and its ability to require that that penalty be deposited in the general funds of the City. However, I will leave it for you to address these questions of state law. Under federal law, however, I believe Paragraph 7.4 is also subject to attack. Since there has been no noise study or study of any nature as to compatibility with the current use of the airport, its capacity and its safety, I believe that paragraph 7.4 would be subject to attack as unjustly discriminatory under the Equal Protection Clause and as an undue burden upon interstate commerce. In particular, since the proposed Charter Amendment relates to single event noise rather than cumulative noise impact, under the reasoning of the Santa Monica case, the Concorde II case and the Westchester case c~ed above, I thih~' it "is ~uite likely that Charles Ian Nash, Esq. February 6, 1989 Page 9 the Courts would find this proposed amendment :o be arbitrary and overbroad because i: is unsupported by any empirical data to demonstrate a noise problem and to evaluate the reasonable- ness of the proposed limitation. To my knowledge, no studies have been conducted to demonstrate the effect of the noise regu- lations on air commerce and to ensure that %he impact of the regulation on air commerce is reasonable in relation to the noise abatement obi ective and nondiscriminatory as between classes of airport users. Paragraph 7.5 of Section 102 requires the City to adopt a landing fee of least $5.00 per opera:ion and includes each "touch-and-go,, as an operation. My concerns for the validity of this proposal are ~imilar to my concerns for Paragraph 7.4. Once again, there has been no data generated to support this fee as reasonable and nondiscriminatory. There has been, to my knowledge, no evidence generated to justify the fee in relation to the revenues to 'be generated and the costs to be offset by such revenue. Again, under the reasoning of the above-cited cases, I feel the proposed Charter Amendment is subject to attack as arbitrary, unreasonable and discriminatory in viola- tion of the Equal Protection Amendment and the Commerce Clause. Moreover, it appears to violate those provisions of the Surplus Property Act which require that the airport be used for "public airport purposes for the use and benefit of the public on reasonable terms and without unjust discrimina- tion...'' Similar provisions are, of course, contained in the grant assurances above quoted which require that the airport be available as an airport for public use on fair and reasonable terms to all types, kinds, and classes of aeronautical and which permit limitation only when the action is necessary for the safe operation of the airport. Without the development of a study to support the need for such a fee structure and to analyze the impact of such a fee structure on various users, I bel-ie ve that the proposed amendment will challenge, not withstand a Paragraph 10 which is proposed to be added to Section 102 is, in my opinion, in conflict with the Surplus Property Act of 1944, as well as the provisions of the quit-claim deed. More- over, this proposed amendment would conflict with the grant assurances above-cited. The property was deeded by the federal government to the City for use as an airport. When the City was permitted to use a portion of the property as a golf course, the Administrator permitted such use only upon the Charles Ian Nash, Esq. February 6, 1989 Page 10 express condition that the excess revenues be used to support the airport. Moreover, the grant assurances require that all revenues generated by the airport be expended by it for the capital or operating costs of the airport and other local faci- lities that are owned and operated by the Airport and which are directly related to air transportation. Thus, it is my opinion that the diversion of these revenues from the airport would be in direct violation of the grant assurances, the quit-claim deed, and the Surplus Property Act. In summary, it is my opinion that the-proposed Charter Amendments are subject to challenge upon numerous grounds. Some of these issues could result in reversion of the airport to the federal government. If there are legit/mate noise, safety or capacity problems to be addressed at the airport, it is essential that the necessary evidence be gathered to analyze the scope of these problems and to devise solutions that will be reasonable and nondiscriminatory when balanced against the impact of these regulations upon the aeronautical users of the a irp crt. Given the concerning the likely that the restrictions and ma nner. WCP/cb ;rsh frequently voiced statements from the FAA m need for increased airport capacity, it seems FAA will take action to resist any access fee structures which are no,lanced in this m & i ALLACE, ~TTO~N]~Ym AT LAw February 20, 1989 ~30 S. H.,u~o~ C~Tr BLVU. SUITE 505 ]~[~LBOUI%N~:. ~LORXDA 32~01 (40~) 984-3300 F~ (40T) 951-374~ Honorable Richard B. Votapka, Mayor Members of the City Council city of Sebastian Post Office Box 780127 Sebastian, Florida 32958-0127 Sebastian Municipal Airport Referendum Our File %88-2920 Dear Mayor Votapka and Members of Council: I am writing this letter in response'tO your request for a '. written opinion concerning legal issues surrounding the -. .... Referendum initiated by the Citizens'.Airport Watch. Pursuant your direction, I have written to Mr.-Gregory S. Walden, ~Chief Counsel for the Federal Aviation Administration, and asked for his written opinion as to whether passage of the Referendum, as proposed, would jeopardize the title to the airport land currently held by the City. In addition, I asked Mr. Walden for his opinion as to whether or not any provisions of the proposed Referendum violates the United States Constitution or provisions of Federal law. I have also engaged the services of Mr. William Potter, an attorney practicing in the area of aviation law, and have asked for his written opinion as to the validity of the provisions in the proposed Referendum when compared to the following: 1. the Federal Aviation Act of 1958; 2. the Surplus Property Act of 1944; 3. the United States Constitution, specifically, the Commerce Clause, the Supremacy Clause, and the Equal Protection Amendment; 4. the provisions of the Quit claim Deed which conveyed the property occupied by the Airport from the United States to the City of Sebastian; 5. the grant assurances and agreements for airport improvement programs, as published in Volume 53, Number 22, of the Federal Register; and Honorable Richard B. Votapka, Mayor Members of the City Council City of Sebastian February 20, 1989 Page Two 6. the Airport and Airway Improvement Act of 1963, as amended by the Airport and Airway Safety and Capacity Expansion Act of 1987. in their written responses, both Mr. Potter and Mr. Walden explained the significant problems associated with the Referendum proposals concerning landing fees and noise restrictions. In addition, Mr. Potter discussed actions required by the Referendum which appear to be in violation of %he Surplus Property Act as well as other actions which will trigger the reverter clause in the Quit Claim Deed. I have provided copies of these letters to you. I have received a copy of correspondence from_Mr..Stanley_J Green, General Counsel for the General 'Aviation'-Manufacturers.-' Association, directed to Mayor Richard B~"~Votapka, which .. discusses the landing fee and noise regulation,proposals in-the Referendum as well as the proposed restriction on accepting grant money. Although Mr. Green represents an interested-party, I believe that his comments should be carefully considered. In preparing this opinion, I have relied upon the following: 1. Article I, Section 10 of the United States Constitution; 2. Article I, Section 10, Article II, Section 3, Article 5, Sections 1, 2, and 6, Article VII, Section 12, Article VIII, Section 2, Article X, Section 10 of the Florida Constitution; '3. (1987); Chapters 125, 166, and 775 of the.Florida Statutes 4. Opinion of the Attorney General of the State of Florida No. 81-76; 5. the Charter of the City of Sebastian, Florida; 6. Chapters i and 17 of the Code of Ordinances of the City of Sebastian; 7. Resolutions R-85-44, R-86-4-A, R-88-16, and R-88-69 of the City of Sebastian; 8. Quit Claim Deed between the United States of America and the City of Sebastian, dated January 29, 1959; Honorable Richard B. Votapka, Mayor Members of the City Council City of Sebastian February 20, 1989 Page Three 9. Joint Participation Agreement between the State of Florida Department of Transportation and the City of Sebastian, dated February 28, 1978; 10. Application for Airport Master Plan for Sebastian Municipal Airport, dated January 1985; ll. Grant Agreement between the Federal Aviation Administration and the City of Sebastian, dated March 6, 1986; 12. Plan For Financing For $2,050,000 For Recreational Facilities Revenue Bonds - Series 1985; 13. Sebastian Municipal Airport Master Plan,'dated December, 1988;' --_.~-'~--,"-.:~--:..- 14. Leases between the City of Sebastian and J. & S. Aviation, Inc., Golden Horn Aviation,--.~nc._, %Fly Florida,"[Inc., John Valentine, and Mid-Florida Schutzhund Club; .and 15. a Sublease between Fly Florida, Inc. and Sebastian Aero Services. ISSUES PRESENTED 1. Does the Amendment to Paragraph 7 of Section 1.02 of the Charter of the City of Sebastian, as proposed by the Referendum, impede the City's ability to manage and operate the .. airport pursuant to covenants contained in the Quit claim Deed? 2. Are the self-supporting-provisions of Paragraph 7.1 of the Charter Amendment in conflict with any existing ordinances or resolutions of the City? 3. Do the provisions of Paragraph 7.2 of the Charter Amendment unlawfully restrict the exercise of the governmental, corporate, and proprietary powers of the City of Sebastian as provided in the Florida Constitution and the Municipal Home Rule Powers Act? 4. Do provisions of Paragraph 7.3 of the Charter Amendment severely and adversely affect the City's ability to receive a grant or other form of financial assistance from the State or Federal government or any other public, quasi-public, or private entity? Honorable Richard B. Votapka, Mayor Members of the City CoUncil City of Sebastian February 20, 1989 Page Four 5. May the City impose a minimum penalty of not less than one .thousand dollars ($1,000) against the owner or operator of an aircraft which is in violation of an airport noise regulation as provided in Paragraph 7.4 of the proposed Charter Amendment? 6. May the City require that an aircraft owner or operator pay a fine for the violation of an aircraft noise ordinance within fourteen (14) days of the date of violation? 7. Do the landing fee provisions contained in Paragraph 7.5 of the proposed Charter Amendment conflict with existing City ordinances or resolutions? 8. Do the revisions to Paragraph 10 of Section 1.02 of the Charter, as proposed~-by-theReferendum,.~iol~ate~ny-~iexisting>4.~-..~..!... ordinances or resolutions of the City or conflict with the intent and purpose of the Quit Claim Deed? 9. Do the noise limitations and landing fees, .as proposed by the Referendum, provide a basis for a cause of action against the City of Sebastian by the existing Lessees at the Sebastian Municipal Airport? RESPONSE 1. The amendatory language in Paragraph 7 of Section 1.02 of the Home Rule Charter of the City of Sebastian, as proposed by the Referendum, significantly impedes the City's ability to manage and operate the Airport pursuant to the covenants between the City and the United States, particularly with regard to Paragraph 2 of the Quit Claim Deed which requires that, "... all structures, improvements, facilities and equipment in which this instrument transfers any interest shall be maintained for the use and benefit of the public at all times in good and serviceable condition ..." 2. The self-supporting provisions of Paragraph 7.1 of the Charter Amendment directly conflict with Sections 7 and 12 of Resolution R-86-4-A of the City of Sebastian. 3. The provisions pertaining to financing in Paragraph 7.2 of the Charter Amendment unlawfully restrict the City of Sebastian's exercise of its governmental, corporate, and proprietary powers as provided by Article VIII, Section 2 of the Florida Constitution and the Municipal Home Rule Powers Act, codified as Chapter 166 of the Florida Statutes (1987). I I I I I I i I I ~onorable Richard B. Votapka, Mayor Members'of the City Council City of Sebastian February 20, 1989 Page Five 4. The provisions of Paragraph 7.3 of the Charter Amendment severely and adversely affect the City's ability to receive a grant or other form of financial assistance due to the restrictions imposed by Paragraph 7.1 of the Charter Amendment which would preclude the City's use of its full taxing authority to provide guarantees for any financial assistance. 5. It is highly unlikely that a court of competent jurisdiction would uphold a municipal ordinance which requires the payment of a minimum penalty of not less than one thousand dollars ($1,000.00). 6. The City may not enact an ordinance which purports to regulate the time in which a violation of a municipal ordinance can be heard by a court-of competent Jurisdiction.-. ~..~ ..... ~-~ ........ .-- 7. The landing fee provisions contained in Paragraph 7.5 of the Charter Amendment directly..conflict with~Section_17-4 of the Code of Ordinances of the City of Sebastian,"which prohibits -.. "touch and go" airport movements. 8. The revisions to Paragraph 10 of Section 1.02 of the Charter, as proposed by the Referendum, are in direct conflict with Sections 7 and 12 of Resolution R-86-4-A of the City of Sebastian. 9. The noise limitations and landing fees proposed by the Referendum provide a basis for a cause of action for the current airport leaseholders based upon the theory of interference with obligation of contract. ANALYSIS Paragraph 7 of Section 1.02 of the City Charter now requires that a referendum election be held before the City of Sebastian can ... lengthen or relocate any runway; construct any new runway, new taxiway, or any airport terminal, allow a control tower, install any additional taxiway or runway lights, except lights on the existing primary runway (designated as 4-22); or install any navigational aid or instrumentation for the primary purpose of promoting or accommodating jet aircraft traffic ... This restriction on the City's management of the Airport is limited by this provision to Dew construction. The Quit Claim Deed between the United States and the City of Sebastian does not Honorable Richard B. ~otapka, Mayo? Members of the City council city of sebastian February 20, 1989 Page six r~qulre -y .~ ~_~. need does require.=n~ .... ~ ~ ~v~ceable condition, to assure Amendment to Paragraph provides that a ~Ier~nuu~_~_ ~-~-ovements to any runway which ,,strengthen or otherwise are not necessary for the maintenance of the facility in good repair." This clause provides ~he basis for a cause of action on the part of any taxpayer of the City of Sebastian to challenge any type of City maintenance of the airport facilities on the grounds that such activity is not necessary for maintenance of such facility in good repair. Th%s wou%d cause the City to such suit w~th evidence from recognized experts ~ndlCatlng~-t necessarY, such litigation could delay needed maintenance whereby a runway or other facility could deteriorate to the point of being unsafe. Resolution R-86-4-A of the City of Sebastian was adopted~on February 16, 19~6. Sections 2 and 3 of that Resolution require the Airport the sebastian Golf Course shall pay Fund . ' b t~e golZ course, o nts the which ~s occuple~ Y ..... ==~tio~ to the annual payme , Resolution provioes ideration for the use.of airport City shall, as fu_r~_her _~s ~-ovide police and fire p~otection extent not di Y shall be constructed ..- maintained .-- operated, managed and regulated solely and exclusively with actual revenues directly derived from or generated by fees, charges, rents, commissions, concessions, or other required payments imposed or established by the city in connection with the use of such airport facilities. The Referendum also proposes to add an Amendment to Paragraph 10 of Section 1.02 of the City Charter which defines the term ,,necessary administrative services," as used in Paragraph 7 of Resolution R-86-4-A to mean ,,solely those administrative services necessary to provide police and fire protection to such Sebastian Municipal Airport." This interpretation of section 7 of Resolution R-86-4-A significantly reduces the existing consideration provided on behalf of the golf course to the Honorable Richard B. Votapka, Mayor Members of the City'Council City of Sebastian February 20, 1989 Page Seven Airport Fund. The proposed Paragraph 7.1, when analyzed in conjunction with the proposed Amendment to Paragraph 10, is in direct conflict with Section 12 of Resolution of R-86-4-A which provides that, "This Resolution may be amended only with a letter of concurrence or a letter of no objection from the Federal Aviation Administration, its successors or assigns." The Federal Aviation Administration has not issued such letter. The Sebastian Municipal Golf Course is required, under the terms of the Quit Claim Deed, to provide consideration in the amount of fair market value for the use of the Airport property. Failure to do so would constitute a violation of the covenants between the City of Sebastian and the United States of America. The City of Sebastian, as a municipality incorporated under the laws of the State of Florida, has the governmental, corporate, and proprietary powers to enable it to conduct municipal government, perform municipal functions, and render municipal services, pursuant.to authority_granted by.-ArticleVIII, Section 2 of the Florida Constitution and-the. Municipal HomeRule Act, provided that the exercise of such powers are not expressly prohibited by law.-'. Section 166.111, Florida Statutes (1987) .... -7- _. provides, among other things, that a municipality may borrow money and contract loans without the necessity of a referendum. Section 166.121, Florida Statutes (1987) allows the governing body of a municipality to issue revenue bonds without the necessity of a referendum. The Referendum provisions contained in the proposed Paragraph 7.2 would not permit the City of Sebastian to borrow any money, contract any loan, or issue any bond or other certificate of indebtedness without first receiving approval to do so through a local referendum. In State v. City of Miami, 379 So.2d 651 (Fla. 1980), the Supreme Court of the State of Florida found a similar restriction on the exercise of municipal powers to be unconstitutional. In that case, the City of Miami issued revenue bonds for t~e construction of a convention center garage. A proceeding was brought challenging the City's issuance of these bonds based upon a provision in the Miami City Charter which required a local election in connection with the issuance of revenue bonds and which further prohibited the lease of a portion of the facility to be financed by bonds for more than thirty (30) years. This restriction in the Miami City Charter'had been adopted prior to the enactment of the Municipal Home Rule Powers Act. The Supreme Court rejected the challenges to the city's action and found that these Charter provisions constituted limitations on the borrowing and leasing powers of the City of Miami which were granted to it by the Municipal Home Rule Powers Act. The Court further stated that Honorable Richard B. Votapka, Mayor Members of the City Council City of Sebastian February 20, 1989 Page Eight Neither the Municipal Home Rule Powers Act nor the Florida Constitution requires an election to approve the issuance of revenue bonds which do not pledge ad valorem taxes. Therefore, an election is not necessary to approve the financing of this convention center garage, but rather the City Commission may approve it. Two years later, the District Court of Appeal of Florida for the Third District had the occasion to review a similar restriction. In that case, the plaintiff sought an injunction to halt the enforcement of a Miami municipal ordinance granting cable television rights to two private companies within the City. The Plaintiff based his suit on a section of the Miami City Charter which required that such an ordinance had to first be submitted to a referendum. The Court cited the Stat.e v. City o~....Miam$ case in reaching its conclusion that a referendum was not required. It is 'clear from the reasoning of.this decision_that the subject charter provision must also fall under the Municipal Home Rule Powers Act (Section 166.021, Florida Statutes [1979]) as constituting an unauthorized restriction on the power of the City of Miami to grant franchises on its property to private persons; such franchises, like leases of City property or the issuance .of revenue bonds, may be approved by the City Commission without submitting same to a referendum. In any event, it is clear beyond dispute that the subject charter provision has been struck down by the Florida Supreme Court as having been nullified by the Municipal Home Rule Powers Act. Rollev. City of Miami, 408 So.2d 642 (Fla. 3rd DCA 1982). The Supreme Court of the State of Florida has not issued an opinion as to whether or not restrictions on the exercise of municipal powers may be placed in a city charter after the adoption of the Municipal Home Rule Powers Act. The District Court of Appeal for the Fifth District of Florida, however, has ruled that the electors of the City of Orlando could propose amendments to the City Charter which would prohibit the City from constructing a coal fired electrical generating plant, Gaines v. The City of Qrlando, 450 So.2d 1174 (Fla. 5th DCA 1984). This case is, however, distinguishable from the Sebastian Referendum proposal on two points. First, the proposed Orlando Referendum dealt only with the issue of whether or not to build a sizeable capital project. In Sebastian, the capital project is already here. Further, the Sebastian capital project (Airport) carries with it additional obligations on the part of the City to various Honorable Richard B. Votapka, Mayor Members of the City Council City of Sebastian February 20, 1989 Page Nine leaseholders and the United States government. Second, the City of Sebastian is not within the jurisdiction of the District Court of Appeal for the Fifth District of Florida. The District Court of Appeal for the Fourth District of Florida, which has jurisdiction over the City of Sebastian, has not ruled on this issue. It is, therefore, highly unlikely that the proposed Paragraph 7.2 would survive a challenge in a court of competent jurisdiction based upon the opinion of the Supreme Court as expressed in State v. ~it¥ of Miami. In Paragraph 7.3, the Referendum proposes to restrict the City's acceptance of any grant or other form of financial assistance unless the City Attorney can issue an opinion that the acceptance by the City of such a grant or other form of financial assistance would not "prevent, limit, or otherwise frustrate the regulation, operation, or governance by the City of the Airport according to provisions of this Paragraph 7." An analysis of this proposed Paragraph, in conjunction with the'~self-supporting provisions oft .. · the proposed Paragraph 7.1, would not allow the City to utilize revenues from any other sources in order to guarantee the payment of a revenue bond. The purchasers of such bonds normally seek some form of guarantee from the municipality in the event that the revenue from the capital project financed by the bond is not sufficient to repay the bondholders. For example, the existing bond obligations for the Sebastian Municipal Golf Course are guaranteed by a pledge of the City's utility taxes. Therefore, the provisions of the proposed Paragraph 7.3 and 7.1 would effectively remove the City's ability to issue future revenue bonds for improvements at the Airport. This restriction is particularly distressing in view of the comments contained in Section 7.5 of the Master Plan for the Sebastian MuniciPal Airport. That Section describes the funding methodologies for Phases I-Iii. According to the Plan, Phase I expenses are primarily designed to bring the existing airport facilities to a good and serviceable condition. In analyzing the debt service requirements, the planner stated that, "It is evident that the City of Sebastian would never be able to make or propose improvements on their (sic) own." These proposed Charter Amendment provisions would, therefore, severely and adversely affect the City's ability to meet its obligations under the Quit Claim Deed. A municipality may, pursuant to the broad Home Rule Powers granted by Chapter 166, Florida Statutes (1987) "exercise any power for municipal purposes, except when expressly prohibited by law." A city council, acting as a legislative body of a municipality, may prescribe the penalties to be imposed for violations of municipal ordinances. Section 165.19, Florida Honorable Richard B. Votapka, Mayor Members of the City Council City of Sebastian February 20, 1989 Page Ten Statutes (1973) provided "that for no one offense made punishable by the ordinances and laws of said city or town shall a fine of more than $500.00 be assessed, nor imprisonment.for a period of time greater than 60 days" be imposed. This Section was, however, repealed by Chapter 74-192, Laws of Florida. No other statute has subsequently been enacted which expressly authorizes the imposition of penalties by a municipality. Nevertheless, sections of Chapter 775, Florida Statutes (1987) clearly indicate that municipalities can continue to enact ordinances with penal sanctions. Section 775.08(2) provides that the term "misdemeanor" shall not mean a conviction for any municipal or county ordinance. Subsection (3) states that, "Nothing contained in this code shall repeal or change the penalty for a violation of any municipal or county ordinance." Section 775.082(5) provides that, "Any person who has been convicted of a non- criminal violation may not be sentenced to a term of imprisonment nor to any other punishment more severe than a fine, forfeiture, or other civil penalty, except as provided ... by ordinance of any city or county." While in existence, Section 165.19 limited a municipal ordinance penalty to $500.00 or imprisonment for a period of time not to exceed 60 days. These same restrictions apply to misdemeanors of the second degree pursuant to Sections 775.052(4) (b) and 775.083(1) (e). Further, Section 125.69, Florida Statutes (1987) provides that violations of county ordinances shall be prosecuted in the same manner as misdemeanors and upon conviction shall be punished by a fine not to exceed $500.00 or imprisonment in the county jail not to exceed 60 days.or b~.any combination of such fine and imprisonment. On the other hand, the maximum fine which can be imposed upon conviction of a misdemeanor of the first degree is $1,000.00. The maximum fine for-the conviction of a felony of the third degree is $5,000.00. See Section 775.083, Florida Statutes (1987). In 1981, Mr. Charles P. Vitunac, the then City Attorney for the City of Vero Beach, requested an official opinion from the Attorney General of the State of Florida as to the limitations on the exercise of a municipality's authority to impose penalties for violations of municipal ordinances under its Home Rule Powers. In his response, the Attorney General stated ....in accordance with the dictates of Sectio~ 2(b), Article VIIi, State Constitution, and the Municipal Home Rule Powers Act, Chapter 166, Florida Statutes, limitations on or the severity of penalties imposed by municipal ordinances is left to the sound discretion of the legislative body of each municipality. Any abuse Honorable Richard B. Votapka, Mayor Members of the City Council City of Sebastian February 20, 1989 Page Eleven of that discretion would become a matter subject to judicial resolution. It would appear, however, that the limitations fixed in Chapters 316' and 318, Florida Statutes, and for convictions of misdemeanors of the second degree in Section 775.082(4) (b) and 775.083(1) (e), Florida Statutes, or as was formerly provided in Section 165.19, Florida Statutes (1973), should serve as guidelines in establishing the appropriate penalties for violations of municipal ordinances, unless and until the Legislature should determine otherwise. Opinion of the Attorney General of the State of Florida No. 081-76, October 13, 1981. Section 1-10 of the Code of Ordinances of the City of Sebastian provides that where no specific penalty is provided, a violation of the Code of Ordinances shall be punished by a fine not exceeding $500.00 or a term of imprisonment not exceeding 60 days. Paragraph 7.4 of the proposed Charter Amendment requires the City to enact a penalty for violation of an airplane noise regulation of "not less than $1,000.00.4' It is highly unlikely that a court of competent jurisdiction would uphold such a penalty. Paragraph 7.4 of the proposed Amendment to the Charter also requires that the City assess a penalty against the owner or operator of any aircraft within fourteen days following each instance in which the aircraft is used in violation of an aircraft noise regulation. The requirement that a penalty be imposed within fourteen days is clearly procedural in nature. Article V, Section 2 of the Florida Constitution provides that only the Supreme Court of this State shall adopt rules for procedure in all courts. Further, the City is precluded by Article V, Section 1 of the Florida Constitution from maintaining its own court. For these two reasons, the fourteen day requirement contained in Paragraph 7.4 of the proposed Charter Amendment is unconstitutional. Paragraph 7.5 of the proposed Charter Amendment requires the City of Sebastian to enact a fee of no less than $5.00 for aircraft operation at the Airport. This same Paragraph requires that this fee be imposed for a cycle of activity known as "touch-and-go.', Touch-and-go operations are specifically prohibited by Section 17-4 of the Code of Ordinances of the City of Sebastian. This Paragraph of the proposed Charter Amendment attempts to legitimize and tax an aircraft operation which has been deemed illegal by the City Council since the enactment of Ordinance 0-79-6 on September 10, 1979. ~onorable Richard B. Votapka, Mayor Members of the City Council City of Sebastian February 20, 1989 Page Twelve The City of Sebastian has negotiated leases with at least four companies for the purpose of doing business at the Airport. At the time that these leases were negotiated, the Lessees were well aware of the City's obligations to maintain the Airport facilities in a safe and operable condition, as required by the Quit Claim Deed with the United States of America. Further, at the time that the leases were negotiated, there were no limitations on the City's power to borrow money or issue revenue bonds in order to meet its obligations under the Quit Claim Deed. The Lessees decisions to enter into their various leases with the city were, in all probability, based in part on the belief that the City would meet its obligations to maintain the Airport. As described previously in this analysis, the City's ability to manage its Airport would be significantly affected should the Charter Amendment be adopted as proposed. Therefore, an issue is raised as to whether or not the adoption of these provisions would impair the contracts (leases) entered into between the various Lessees and the City. The Florida Supreme Court, in the landmark case of ~umDhreYs. et alv. Stat~, ~x.re~. R~m Beach county, et al, 145 so 859, 861 (Fla. 1933) stated 'that This Court has long since held that all the laws which subsist, at the time and place of the making of a contract, and where it is to be performed, enter into and become a part of the contract made, as if they were expressly referred and incorporated in its terms, including alike those laws which affect its construction, validity, enforcement, or discharge. Article I, Section 10 of the Constitution of the United States and Article I, Section 10 of the Florida Constitution provide that no law impairing the obligation of contracts shall be passed. No landing fees or airplane noise restrictions existed at the time that any of the present leases were negotiated between the City of Sebastian and the Airport Lessees. It is logical to assume that the various Lessees analyzed potentigl airplane traffic at the airport in making their business decisions to enter into their various leases. The landing fee and airplane noise provisions contained in Paragraphs 7.4 and 7.5 of the proposed Charter Amendment would, to some degree, restrict the amount of airplane traffic at the Airport to a level below that which currently exists. It is possible that such reduction in air traffic could serve as a basis for a cause of action for the Lessees to claim that the enactment of such Charter Amendment is an impairment of their existing contract with the City. A final determination as to whether or not the contracts were impaired would be a factual matter to be decided by a court of competent jurisdiction. Honorable Richard B. Votapka, Mayor Members of the City Council City of Sebastian February 20, 1989 Page Thirteen The proposed Charter Amendment requires that the City impose landing fees and noise restrictions on aircraft operations. The city has not conducted any studies to justify either of these restrictions although the Sebastian Municipal Airport Master Plan contains a provision that a noise abatement study be conducted as soon as possible. The Administrator of the Federal Aviation Administration has prescribed standards for the measurement of aircraft noise and sonic booms and published regulations for the control and abatement of aircraft noise. In so doing, this field has been preempted by the Federal Government and is not subject to state or local control. Burbank v_Lockheed Ai~ Terminal, Inc., 411 U.S. 624, 36 L Ed2d 547 (1973). It is highly unlikely that a court of competent jurisdiction would uphold the proposed restrictions in T_he absence of such studies. I suggest that you review the letters written by attorneys Potter and Walden for a more complete discussion of this issue. My office has attempted, on two occasions, to contact Mr. John Evans, attorney for Citizens Airport Watch, in order to discuss the questionable provisions of this proposed Charter Amendment. Unfortunately, Mr. Evans did not return our telephone calls. In summary, it is my opinion that the proposed amendments to the Home Rule Charter of the City of Sebastian are subject to challenge upon numerous grounds. I firmly believe, should these Amendments be enacted as written, that the City will likely find itself in the position of defending numerous suits from parties who have been adversely affected by the imposition of these restrictions. I appreciate the opportunity to provide this opinion to the governing body of the City and remain available to respond to your questions. NASH & FALLACE, P.A. , ATTORNEYS FOR TH~-CITY OF SEBASTIAN Charles lan Nash City Attorney CIN/nch PREPARED STATEMENT FOR DELIVERY TO SEBASTIAN CITY COUNCIL ON JUNE 7,1989' I AM ROBERT. F. EISENGREIN, AND I AM SENIOR ATTORNEY FOR AIRPORT ACCESS IN THE OFFICE OF THE CHIEF COUNSEL OF THE FEDERAL AVIATION ADMINISTRATION IN WASHINGTON, DC. I WELCOME THE OPPORTUNITY TO ADDRESS THE COUNCIL ON FAA"S VIEWS CONCERNING THE PROPOSED ORDINANCE FOR CONSIDERATION THIS EVENING, AS WELL AS THE MARCH 12 REFERENDUM APPROVED BY THE VOTERS OF THE CITY OF SEBASTIAN. I WOULD LIKE TO CONFIRM A NLrMBER OF VERY SPIRITED AND PRODUCTIVE MEETINGS AND TELEPHONE CONVERSATIONS THAT TOOK PLACE DURING THE PAST SEVERAL WEEKS BETWEEN FAA ATTORNEYS AND MANAGEMENT AND YOUR SPECIAL COUNSEL, MR.-'ELIOT CUTLER AND MR. JOHN POTTER. WE BOTH EXCHANGED VIEWS CONCERNING THE MATTER BEFORE THE COUNCIL, AND 'WE AGREED TO DISAGREE ON THE MERITS OF OUR SEPARATE LEGAL POSITIONS. MR. CUTLER HAS AN EXCELLENT REPUTATION WITHIN THE FAA FOR BEING AN ENTHUSIASTIC BUT BASICALLY SOUND ADVOCATE OF THE INTERESTS OF LOCAL CITIZENS AND GOVERNMENTS INVOLVING AIRPORT ACCESS AND ENVIRONMENTAL MATTERS. CONSEQUENTLY, THE FAA IS HOPEFUL THAT THE MATTER IN CONTROVERSY INVOLVING SEBASTIAN MUNICIPAL AIRPORT CAN BE WO~ OUT SO THAT THE BEST INTERESTS OF ALL CONCERNED ARE SERVED. ~ -2- BEFORE GETTING iNTO A DISCUSSION OF A POSSIBLE RESOLUTION OF THE CONtRovERsy, I WOULD LIKE TO MAKE A BRIEF STATEMENT ON PAST INVOLVEMENT BY THE FAA IM THE MATTER OF THE REFERENDUM TO AMEND THE CITY CHARTER AND ON FAA'$ LEGAL POSITION AND AVAILABLE LEGAL OPTIONS. SOME OF YOU HERE TONIGHT ARE PROBABLY AWARE THAT THE-FAA CHIEF COUNSEL IN A FOUR PAGE LETTER TO YOUR CITY ATTORNEY, MR. CHARLES NASH, DATED JANUARY 10, 1989, ADDRESSED FAA'S CONCERNS WITH THE PROPOSED REFERENDUM. THE LETTER WAS IN P. ESPONSE TO ??~. NASH'S INQUIRY A FEW DAYS BEFORE THE CITY COUNCIL VOTED TO PLACE THE REFERENDUM ON THE MARCH BALLOT. THE FAA UNDERSTANDS THAT MR. NASH MADE OUR VIEWS KNOWN TO THE COUNCIL. A SECOND INVOLVEMENT OF FAA IN THIS MATTER OCCURRED DURING A COUNCIL MEETING ON "~BRUARY 21, 1989, WHEN REPRESENTATIVES OF THE FAA'S AIRPORTS DISTRICT OFFICE IN ORLANDO MET TO ANSWER QUESTIONS AND TO REITERATE FAA'S CONCERNS WITH THE REFERENDUM. ONE OF THOSE REPRESENTATIVES IS WITH ME TONIGHT, MR. BILL LANGLEY. ALSO WITH ME TONIGHT IS A REPRESENTATIVE OF FAA'S SOUTHERN REGION AIRPORTS OFFICE iN ATLANTA. MY REASON FOR MENTIONING BOTH THE FAA LETTER AND THE FEBRUARY COUNCIL MEETING WITH FAA REPRESENTATIVES IN ATTENDANCE IS TO REMIND EVERYONE THAT FAA'S POSITION WITH REGARD TO THE REFERENDUM WAS PUBLIC INFORMATION BEFORE THE MARCH VOTE. THE PROPOSED ORDINANCE AVAILABLE TO THE FAA SINCE FRIDAY HAS BEEN GIVEN ONLY CURSORY REVIEW. SUFFICES HERE TO SAY THAT THE FAA DOES NOT AGREE WITH THOSE PARTS OF THE ORDINANCE DESIGNED TO IMPLEMENT THE MARCH REFERENDUM. I AM NOT GOING TO ADDRESS THE SPECIFICS OF THE ORDINANCE, BUT WOULD PREFER INSTEAD TO TELL YOU FAA'S LEGAL POSITION IN THIS MATTER. TAKING ENFORCEMENT ACTION AGAINST THE OWNERS OF AIRCRAFT USING THE AIRPORT WHO DO NOT MEET THE 65 dBA SINGLE EVENT USE RESTRICTION IS VIEWED BY THE FAA NOT ONLY TO BE AN UNJUSTLY DISCRIMINATORY ACTION AGAINST AIRCRAFT OTHERWISE ABLE TO USE THE AIRPORT RUNWAYS IN VIOLATION OF THE TERMS OF SEBASTIAN'S SURPLUS PROPERTY DEED, BUT, ALSO, TO BE A VIOLATION OF FEDERAL LAW BECAUSE THE REGULATION OF THE AREA OF AIRCRAFT NOISE HAS BEEN FEDE~A'LLy PREEMPTED BY THE UNITED STATES. IF THE ORDINANCE IS ENACTED INTO LAW, YOU WILL BE GIVING THE FAA LITTLE RECOURSE BUT TO START THE SURPLUS DEED 60-DAY REVERTER PROCEDURE FOR RETURNING OWNERSHIP OF THE SEBASTIAN MUNICIPAL AIRPORT TO THE UNITED STATES. COINCIDENT WITH TAKING THE PROCEDURAL ACTION, THE FAA WOULD NECESSARILY ASK THE DEPARTMENT OF JUSTICE TO FILE FOR A TEMPORARY INJUNCTION PROHIBITING ENFORCEMENT OF THE ORDINANCE UNTIL THE REVERSION /~ HAS TAKEN PLACE, AND TO SEEK AN ORDER PROHIBITING THE USE OF ~ ! INCURRED BY THE CITY OF SEBASTIAN TO DEFEND LITIGATION BROUG}{T BY THE UNITED STATES OR OTHER PARTIES INVOLVING THE REFERENDUM AND/OR IMPLEMENTING ORDINANCE AS IT RELATES TO THE 65 dBA ISSUE. FOLLOWING THE 60-DAY NOTICE PERIOD, I WOULD EXPECT THE FAA TO ALSO ASK THE DEPARTMENT OF JUSTICE TO FILE AN ACTION TO QUIET TITLE AND OBTAIN A DECLARATORY DECREE THAT TITLE TO SEBASTIAN MUNICIPAL AIRPORT VESTS IN THE UNITED STATES. AT THE SAME TIME, THE FAA WOULD WORK WITH THE GENERAL SERVICES ADMINISTRATION, THE STATE OF FLORIDA, AND OTHER UNITS OF LOCAL GOVERNMENT, TO WORK OUT TRANSFER OF THE AIRPORT TO AN ACCEPTABLE NEW OWNER. NOW, WITH ALL THIS SAID, I WOULD LIKE TO INDICATE THAT AN AGREEMENT IN PRINCIPLE NEGOTIATED WITH MR. CUTLER IN THE PAST SEVERAL DAYS AND WHICH HE WILL PRESENT TO THE COUNCIL THIS EVENING, IS AN ACCEPTABLE ALTERNATIVE TO THE FAA TO AN ALL-OUT "WILD-WEST SHOOT OUT" iN THE FEDERAL .COURTS OVER THE REFERENDUM AND IMPLEMENTING ORDINANCE. i BELIEVE THAT IT IS A REASONED RESPONSE THAT SERVES THE BEST INTERESTS OF THE AIRPORT SUPPORTERS, THE AIRPORT OPPONENTS, AND THE FAA. THANK YOU FOR THE OPPORTUNITY TO ADDRESS THE COUNCIL THIS EVENING. Doc. 2674b VIA FAX June 9, 1989 930 S. ]SL~Bo~ C~ra' BLVD. SU~?E 505 !~E~,'~Or3RNZ. I~,~0RIDA 32901 (40~) 9~4-3300 Robert S. McClary, City Manager City of Sebastian Post Office Box 780127 Sebastian, Florida 32978 Re: Legal Opinion Concerning Liability of Mayor and City Council Members Our File No.: 89-3008 Dear Robb: I am writing in response to your request for a written opinion concerning an issue raised by the Honorable Richard B. Votapka, Mayor at the special City Council meeting held on June 7, 1989. The issue raised is whether the Mayor or individual members of the City Council could incur personal liability for failure to enact proposed Ordinance No.: 0-89-12 concerning the Sebastian Municipal Airport. I have reviewed Section 768.28(9) (a) of Florida Statutes (Supp. 1988) and 42 U.S.C. Section 1983, as well applicable case law. Based on my review of the applicable statutes and case law, it is my opinion that the Mayor and individual council members would not incur personal liability for legislative action taken in good faith and not with malicious purpose or in a manner exhibiting wanton and willful disregard for human rights, safety or property. Therefore, it is important that the City Council articulate compelling reasons in the best interest of the public when making their decision concerning whether or not to implement proposed ordinance No.: 0-89-12. The Mayor and individual members of the City Council could incur liability for contempt proceedings in the event that they do not follow the dictates of a Writ of Mandamus if such Writ is issued by a judge. Furthermore, this opinion does not address whether the City as an entity would incur any liability if the City Council does Robert S. McClary, City Manager Page Two June 9, 1989 not enact proposed Ordinance No.: provisions of the City Charter. 0-89-12 in accordance with the CIN/sr Respectfully submitted, /~, FALLACE, NASH Charles Ian Nasn City Attorney & TORPY, P.A. of Tn~'"~xlcmon 800 InOeDenOence Ave, S.W Washington, D.C. 2059~ June 12, 1989 Eliot R. Cutler, Esq. Cutler & Stanfield 1850 M Street, N.W. Suite 1000 Washington, D.C. 20036 Dear Eliot: I am in receipt of your letter of June 8, 1989, regarding and enclosing the Agreement in Principle Between The City Of Seb&stion, Florida, and the Federal Aviation Administration (the "Agreement in Principle"). On behalf of the Federal Aviation Administration (the "FAA"), I hereby acknowledge that the FAA concurs in the Agreement in Principle. Sincerely, Robert F. Eisengrein Senior Staff Attorney OTJTLER ~ STaLl--FIELD SUITE IOO0 WASHINGTON, D. C, Robert F. Eisengrein, Esq. Senior Staff Attorney Federal Aviation Administration Room 922 E 800 Independence Avenue, S.W. Washington, D. C. 20591 June ~, 1989 FACSIMILE: Dear Bob: On behalf of the City of Sebastian (the "City") and in accordance with our discussions before the Sebastian City Council (the "Council") during its consideration at its June 7 meeting of proposed Ordinance No. 0-89-12, implementing the March 1989 amendments to the City Charter (the "Ordinance"), I am enclosing a copy of the Agreement in Principle Between The City Of Sebastian, Florida And The Federal Aviation Administration (the "Agreement in Principle"). The text of the Agreement in Principle is that which you and I represented to the Council and which I recommended be approved by the Council at its June 12 meeting in lieu of final enactment of the Ordinance. I would appreciate receiving from you, on behalf of the Federal Aviation Administration (the "FAA"), acknowledgment of your receipt of this letter and of the FAA's concurrence in the Agreement in Principle. The Agreement in Principle would become effective upon the receipt of such acknowledgment and approval of the Agreement in Principle by the Council on June 12. Eliot R. Cutler June 8, 1989 AGREEMENT IN PRINCIPLE BETWEEN THE CITY OF SEBASTIAN, FLORIDA AND THE FEDERAL AVIATION ADMINISTRATION 1) Following approval on first reading, the Sebastian.City Council will postpone final passage and enactment of the ordinances implementing the March 1989 amendments to the city charter,..including those ordinances imposing a noise rule and user fees at the Sebastian Municipal Airport. The FAA, in turn, will refrain during such postponement from commencing, supporting or encouraging any legal action against the City of Sebastian in connection with the ordinances, charter amendments or related airport matters. 2) The FAA will entertain a grant application for a planning study funded under the FAA Airport Improvement Program, that authorizes 90% funding for planning studies, subject to a reduction of $27,908 of allowable costs paid under a previous FAA Master Planning grant. No further payment will be made on outstanding Master Planning Grant No. 01-86. The proposed study, when completed, will serve as a foundation for negotiations between the City of Sebastian and the FAA, with input from other interested parties, aimed at determining the future role of the Sebastian Municipal Airport. The planning grant study will focus on the collection of data relating to present and future activity levels, regional economic projections, demographic patterns and environmental and community considerations on the basis of which an appropriate role for the airport can be determined. 3) The sponsor of the study will be the City of Sebastian, operating through its chief administrative officer, the City Manager. 4) The City of Sebastian will retain, through selection procedures conforming to applicable local and FAA requirements, highly qualified, recognized consultants for the engineering and design, noise and other components of the analysis. The FAA reserves the right to reject such selection for cause. 5) The FAA will make a good faith effort to provide adequate funding for the needed planning study using available FY 89 or FY 90 funds, and will support a study that can be completed within one year from date of grant. The total federal share of the costs of the study will be based on a review and approval by the FAA of a proposed work scope, but in no event will exceed $200,000, subject to the reduction referred to in paragraph 2 above. The City of Sebastian will submit such proposed study work scope within 60 days. 6) The goal of the study will be to generate recommendations on the future role of the airport and how the airport should be modified or improved in order to fulfill that role in a manner compatible with a) the city's overall community planning objectives, b) federal statutory objectives and responsibilities to adequately meet the needs of civil aviation, and c) the terms of the surplus property conveyance by which the City acquired the airport. An essential premise of the study will be that the airport's role and use must be consistent with the overall goals and needs of the City of Sebastian in a proper balance with such appropriate federal objectives. Rather than fitting the City of Sebastiam to the Sebastian Municipal Airport or vice versa, the study will attempt to identify ways to fit the two together. 7) The scope of work will include an operations survey and forecast, a noise study and analysis, an environmental analysis, an economic analysis and forecast, and an engineering and design analysis. 8) The study will provide for significant opportunity for input from the FAA, the airport users, the citizens of the City of Sebastian, and the citizens of the neighboring community of Roseland. 9) If at any point during the study, comment and post-study negotiation period the Council were to enact ordinances implementing the March 1989 amendments to the city charter, as a result of the order of a court in an action against and defended by the City, the FAA would be free to take any legal action it deems appropriate, and to stop further funding of any not completed portion of the study. The FAA would provide the normal progress payments authorized under the terms of an FAA planning grant for work completed at the time of any such court order, and the City of Sebastian would promptly make available to the FAA all work product performed under the planning grant available at the time of any court order. 10) If the Council were to unilaterally take any action to terminate the study or to enact such implementing ordinances prior to completion of the study and in the absence of a court order, requiring such action, or were to seek issuance of such a court order all grant progress payments will be returned to the FAA and the grant voided. The FAA also reserves the right to terminate the study if in the opinion of the FAA, adequate progress is not being made or federal objectives are not being sufficiently considered. In the latter event, progress payments would be authorized to the date of termination. 11) The City of Sebastian agrees that FAA funding of a planning study is being undertaken in the spirit of supporting a planning effort intended to result in at least an objective analysis of demand for aviation services at the Sebastian Airport and a comprehensive plan for satisfying that demand while considering legitimate community interests, and local, state and federal aviation interests. 12) During the study period, the City of Sebastian will not remove any airport lighting, will remedy any unsafe conditions at the airport, and will operate the airport in accordance with the conveyance agreement, and generally will not take any action that will alter the character of the airport. 3 BURT SNELL,~ .. Plaintiff, IN TIlE CIRCUIT COURT OF TIlE NINETEENTI! JUDICIAL CIRCUIT IN AND FOR INDIAN RIVER COUNTY STATE OF FLORIDA v. CAS~ NO: SD-0~0S-e~-~S VOTAPKA, Mayor of the JUDGE PAUL B. KANAR~I.': RICltARD City of Sebastian, etc., et al., Defendants, ~ ORDER THIS RATTER HAVING come on to be heard upon the Defendant's Motion to Dismiss and the Court having heard argument of counsel and being otherwise fully advised in the premises, it is therefore; ORDERED AND ADJUDGED as follows~ 1. Defendants argue that Count I seeking declaratory relief should be dismissed because the Plaintiff lacks standing and has further failed to allege a cause of action. A review of the amended complaint shows that the Plaintiff has alleged sufficient special injury to have standing. The complaint however fails to properly state a cause of action for declaratory relief in that it fails to allege doubt as to the existence or non-existence of some right, status, privilege, power or immunity, and that there is an entitlement to have such doubt removed. City of Miami v. Butcher, 303 So.2d 378 (Fla. 3rd DCA 1974). Count I is therefore DISMISSED and the Plaintiff shall, have ten (10) days frum the date of this Order to amend. Upon the filing of the Plaintiff's ~ended Cmplaint, the Defendant shall have ten (10) dsys to file its defensive pleadings. 2. The Defendants allege that Count II seeking injunctive relief must be dismissed because the Plaintiff lacks standing and the complaint fails to sufficiently allege a cause of action. Based on a review of the amended pleadings, the Defendants motion is hereby DENIED and the Defendant shall, within ten (10) days of the date of this Order file its answer. 3. Finally, the Defendants seek to Dismiss or Quash the Rule to Show Cause issued by this Court on August 28, 1989. A review of the ~mended pleadings reveal that Plaintiff sought issuance of the Writ against the Defendants for failing to incorporate an amendment into the charter of the City of Sebastian as required by Section 166.031, Florida Statutes' (1987). The Plaintiff also requested that the Court issue a Writ o£ Handamus for failure of the Sebastian City Counsel to enact ordinance t0-89-12. The Defendants argue that the Plaintiff lacks standing; that the City has adopted the amendments to its eharterl and that the relief sought by the Plaintiff's seeks to compel a legislative duty as opposed to a ministerial action. The Plaintiffs clearly have standing under the amended complaint. As to the issue of incorporation, this is a ministerial act which the Defendants nrc required to do under the terms of Chapter 166, Florida Statutes. Although counsel for the Defendants indicates that incorporation has been completed, there is no evidence before this Court that this has been done. As to the issue of compelling the Defendants to adopt ordinance t0-89-12, the passing of an ordinance is truly a legislative prerogative and as a result Mandamus is not a proper remedy. Dade County Classroom Teachers Association, Inc. v. The Legislature, 269 $o.2d 686 (Fla. 1972). That portion of the Petition for Writ of Mandamus seeking to compel the adoption of Sebastian city ordinance t0-89-12, is therefore DISHISSRD, however; the Defendants shall, within ten (10) days from the date of this Order show cause why this Court should not order the De£endants to incorporate the amendment to the charter adopted by the majority of the registered electors on March 16, 1989. DONE AND ORDERED in Chambers et Vero Beach, Indian River County, Florida, this 27th day of Noym~ber, 1989. ~PAUL B ILANARE~ ~ Circuit Judge cc: Burney J. Carter, Esq. Nicholas F. Tsamatalous, Esq. John S. Yodice, Esq. City of Sebastian 1225 MAIN STREET [3 SEBASTIAN, FLORIDA 32958 TELEPHONE (407) 589-5330 n FAX (407) 589-5570 AGENDA FORM SUBJECT: ) Assistant City Attorney Response. ) to Comments Made By Herbert ) Sturm at 11/10/93 Regular Meeting ) Re: Code Enforcement ) ) APPROVED FOR SUBMITTAL BY: ) ~ Manager:~ ) Agenda No. Dept. Origin Date Submitted For Agenda Of Exhibits: city Clerk 11/23/93 Torpy Letter dated 11/23/93 Appeal Documents EXPENDITURE REQUIRED: AMOUNT BUDGETED: APPROPRIATION REQUIRED: Assistant City Attorney Richard Torpy has submitted documentation relative to the Herbert Sturm appeals to the 19th District Judicial Court for review by the City Council and has advised this office that he will respond to comments made by Mr. Sturm at the November 10, 1993 Regular Meeting. Mr. Torpy will be willing to reply to questions from Council members. None. RECOMMENDED Fm s .sH ToaPY. A??oa~;s,^? L~w · 930 S. HaP. aOR CrrY BLVD. Sm, rE 505 Mmmomt,~. F~om~,., 32901 (407) 984~3~ F~ (40~ 951-3741 * B~ C~ ~ W~. ~B~ ~ ~ C~~w November 23, 1993 Kathryn M. O'Halloran City Clerk City of Sebastian 1225 Main Street Sebastian, FL 32958 Re: Herbert Sturm Appeals File No. 882489.8691 and 882489.8461 Dear Kay: Enclosed please find the orders in both appeal cases filed by Herbert Sturm. These are for discussion purposes at the City's December 1, 1993 City Council Meeting. If you have any questions, please contact me. Sincerely, FRESE, NASH & TORPY, P.A. Richard E. Torpy RET/lb Enclosures HERBERT G. STURM, Appellant, vs. CODE ENFORCEMENT 'BOARD and CITY OF SEBASTIAN, Appellees. to IN THE CIRCUIT COURT OF THE 19TH JUDICIAL CIRCUIT IN AND FOR INDIAN RIVER COUNTY, FLORIDA. APPELLATE DIVISION CIRCUIT CASE NO. 92-~396-CA-25 / ORDER DENYING MOTION FOR AN ORDER TO COMPEL THIS COURT HAVING REVIEWED the Appellant's motion for compel, and this Court noting that this appeal has been order dis- missed, and further that this motion is yet another example of Appellant's continuing refusal to simply comply with this Court's prior order to.serve opposing counsel directly with pleadings in compliance with Fla.R.App. P. 9.42~, it is ORDERED that Appellant's motion for an order to DENIED. 1993 in Fort Pierce, St. Lucie Copies furnished to: HERBERT STURM, Pro Se RICHARD TORPY, ESQ., for Appellees copies of compel is day of County, Florida./ JO~N ~." FENNELL~ Appellate Administrative Judge HERBERT G. STURM, Appellant, vs. CODE ENFORCEMENT BOARD and CITY OF SEBASTIAN, Appellees. IN'THE CIRCUIT COURT OF THE 19TH JUDICIAL CIRCUIT IN AND FOR INDIAN RIVER COUNTY, FLORIDA. APPELLATE DIVISION CIRCUIT CASE'NO. 92-0396-CA-25 / ORDER DISMISSING APPEAL THIS COURT HAVING REVIEWED the Appellee's motion for order striking the Appellant's initial brief or alternatively dismiss- ing the appeal, and this Court considering the response filed by Appellant to this motion, and this Court noting Appellant's continuing argument with each of this Court's orders, as for example, Appellant's motion for relief from one of this Court's orders ordering Appellant to serve the opposing party's counsel of record with copies of all papers filed in the appeals to date sinc~ Appellant has not complied with the Fla.R.App. P. 9.42~ regarding proper service, it is ORDERED that Appellant's appeal is dismissed as a sanction for Appellant's continued refusal to. comply with this Court's orders or the Florida Rules of Appellate Procedure. Appellant shall not file any additional paper with this court in this or any other case in this circuit pro se without going through an attorney. From the date of this order, Appellant must appear in this Court and file papers with this court, or initiate any legal action in this Circuit, only by appearing through an attorney. Appellant shall not proceed without an attorney in any matter before the Court in this Circuit. This means that only an attor- ney representing Appellant may file papers or initiate legal action on behalf of Appellant in this Circuit. Appellant has refused to comp%y with the Court's orders or learn and properly apply the rules of procedure, despite repeated admonitions by this Court to do so. Biermann v. Cook, 18 FLW D1382 (Fla. 2d DCA June 4, 1993)..Failure of Appellant to comply with this Court's order will subject Appellant to an order to show cause why Appel- lant should not be held in contempt of court and punished accord- ingly, by fine or imprisonment. DONE AND ORDERED this-- ~- 1993 in Fort Pierce, St. Lucie Count JOHN Appel~ Copies furnished to: HERBERT STURM, Pro Se RICHARD TORPY, ESQ., for Appellees day of , Flor ida. Judge 18 Fla. L. Weekly D1382 ..... an order stating that FEM had' satisfied the'requirements'of rule 1.442(h) and awarded FEM cost~. The court impliedly granted Licbling's motion, for costs by setting off Liebling's costs, in- curred prior to the service of the offer of judgment, against FEM's award. In State Farm Mutual Automobile Insurance Co. v. Lathrop, 586 So. 2d 1125 (Fla. 2d DCA 1991), this court developed an analytical framework to determine whether sanctions should be imposed pursuant to rule 1.442. Lathrop concluded that the starling point in implementing the rule, and vital to a finding that the rejection of an offer was ~, is a determination that the offeree's rejection caused an "unreasonable delay and need- less increase in the cost of litigation-." Lathrop. 586 Sob'S--d-at 1127; Fla. R. Civ. P. 1.4420a)(1)(A). Next a determination must be made that the offer was refused and the damage award in favor of thc offeree is less than 75 % of the offer, or the damages awarded the offeror are greater than 125% of the refused offer. Lathrop, 586 So. 2d at 1127. Thc trial court's order correctly notes that the damages awarded here were less than 75 % of FEM's offer; however, the order does not address whether Liebling's refusal to accept the offer of judgment resulted in u~.nrec~.._ n_~al?.le.d, day.and needi.e4, t_ incre~e in the cost of litigation. There is nothing in the record ~o aid this court in making that determination. Therefore, we re- mand for the trial court to have a hearing on this issue and to make a determination as to whether or not the refusal caused unreasonable delay and needless'increase in the cost of litigation. As to Liebling's ~a:cond issue on appeal, we reverse and re- mand for the trial court to award Liebling his taxable costs. This ~ a one-count complaint upon which the jury found FEM solely negligent. Even though the jury found that the threshold requirement for bodily injury was not met for purposes of section 627.737(2), Florida Statute (1991), the fact remains that Liebling is the p~revailing party in this case and, as ~uch, is entitled to his taxable costs. Seb § 57.041(1), Fla, Stat. (1991); Hendry Tractor Co. v. 'Fernandez, 432 So. 2d. 1315 (Fla. 1983). Reversed and remanded for further proceedings consistent with this opinion. (RYDER, A.C.J., and PATTERSON, J., Concur.) Appeals--Appeal brought by pro se appellant is without Justiciable issue of law or fact and was brought in bad faith~ Appeal diamiz~d.-Motion for imposition of sanctions upon appellant ~ranted~All I~nding motions, filed by appellant stricken a~ unauthorized by Rules of Appellate Procedure-- Appellees are awarded attorney's fe~s in amount to be set by trial court on remand to c°Ver costs reasonably incurred in respond- ing to appeal--Portion of trial court order declining tO hear any other matters in instant case ~ave routine postjudgmeut proceed- ings which may ~ill be required affirmed--Trial court may consider additional sanctions including attorney's fees and cita- tion for contempt of court in event appellant, after remand, ' DISTRICT COURTS. OF APPEAL · ~'... Property, it was later seized and s01d to ~tisfy ~n Internal Reve- nue Service tax lien. Robert and Patricia Cook were thepurchas- ers. In 1988 appellees filed an notion to quiet title and for eject- meat. The circuit court granted summary judgmeni for appel- lees, Biermatm appealed, and this court affirmed without opin- ion. Biermann v. Cook, $70 So. 2d 1308 (Fla. 2d DCA 1990) (table). Biermann then filed a document entitled "new evidence pre- sented as compulsory judicial notice and motion to vacate judg- ment filed November 30, 1988" in which he took issue with the circuit court's finding (nearly three years earlier) that thc federal digtrict court had remanded this case to .state court. Biermann also filed a "cross motion for summary judgment" and various other unorthodox pleadings. The circuit court correctly treated Bicrmann's efforts as a motion to vacate pursuant to Florida Rule of Civil Procedure 1.540 and, on May 8, 1992, denied all re- quested relief. At some point in the proceedings Biermann claims to have "learn[ed] how thc courts of this great nation are controlled by the Uniform Commercial Code," as the result of which he filed a "notice of revocation of signature and power of attorney" under which he "revokes and makes void ... all signatures on any instruments and any express or implied power of attorney there- with, in fact or assumption, signed either by him or anyone acting as his agent, presumed to be signed, or unsigned, as it pertains to this case. Biermann next served a "demand" upon the presiding circuit judge, three additional motions for rehearing, a "notice of dishonor," and a second "notice of revocation of signature and power of attorney." Suffice it to say that each and every one of these documents and the complaints contained therein are frivo- lous beyond re~onable doubt) The circuit court's order of JUly 13, 199'2, which denies Bier- mann's motions for rehearing, is the order that Biermann now appeals. Since commencing the appeal Blermann has inundated this court in similar fashion, In addition to an initial brief we have received such items as Biermann's "Notice of Errors and De- mand Upon This Court" and a "Judicial Notice, Demand Upon This Court, and Notice of Dishonor." These documents are replete with wide-ranging conspiracy theories involving appel- tees and their attorney, the organized Bar, international bankers, and others. None presents even a preliminary basis for relief. No court is obligated to permit a litigant "to take advantage of the court as the forum to express his personal criticism and castiga- tion not only of his adversary but of opposing counsel, court staff, and judiciary." Continental National American Group v. Majeske, .30 Conn. Supp. 567, *, 305 A.2d 291,292, certifica- tion denied, 164 Coun. 708,302 A.2d 293 (1973). Accordingly, this court orders aa follow~: (1) All pending motions filed by Biermann are hereby stricken asunauthorized by thc Florida Rules of Appellate .Procedure; (2) Appellees' motion for sanctions is granted; (3) This court finds that Bieannarm's appeal is utterly without "a justiciable, issue of either law or fact" and is brought in bad WILLIAM M.' ~11Lrp.~ANN,"Appe~Isnt, "v. ROBERT C. COOK and PATRI- ~'~Jth. For this reason the appeal is hereby dismissed; CIA M. COOK, hil wife, Appellees. 2nd District. Case No. 92-03235. Opts- : (4) Appellees are awarded attorneys' fees,a in an amount to be ion fded June 4, 1993. Appeal from the Circuit Court for Highlands County; J. set by the circuit court after remand, sufficient to cover costs any David Langford, Judge. William M. Bierrnatm. pm ~. Cliffo~ R. Rhoades. reasonably incurred in responding to this appeal; . Sebring. for Appellees. (5) This court specifically approves that portion of the circuit ON MOTION FOR SANCTIONS court's order of June 9, 1993 (amended June 23), which declines. CURIAM.) Appellees Robert and Patricia Cook move this ease] save (PER to hear other matter~ [in this routine postjudg-~c~ court to impose sanctions upon appellant William Biermann. meat proceedings which may still be required." In the event~c.! They ask ns to fred that the present appeal, i,nsofar as it attempts Biermann, after remand, persists in his abuses of the )udic.lat~ to relitigate matters that are rezjudicata, is' frivolous, [filed] in system, the circuit cou,~ may consider additional sanctions bad faith, and intended solely to harass the appellees and cause eluding attorneys' fees and citation for contempt of court. them to incur attorney's fees in protecting their interests." We have also determined that this order should be published An examination of the record readily reveals that appellees' the Southern Reporter, in the hope it may come to the attention persons contemplating lawsuits, aplXt~Js, or other legal a~_.~ point is well-taken. ' In 1978 Biermann acquired title to real property in Lake Pine- without the assistance of counsel. This case represents only id=:.D, espite Bicrmann's claim that this constituted homestead tip ora growing iceberg of such litigation. The majo~ '. : ' DISTRiCT ..~ - - _ . . ~ . ~.~ COURTS OF APPEAL httgants conduct theut$clvcs, if not always with the expertise of lieved conclusively refuted to abide by ru ,-~ ,,r ........... ort constderin the attachment . t e ., l~ ..,, Flu~cnure. Most, ~at Is, out not all. If ill- g s. quately, refute Manley's' assertion of' ineffective assistance of advised, vexatious appeals were only a minor annoyance, we counscl. Accordingly, we reverse and remand for an evidcntia would accept them aa an unavoidable aspect of a court system hearing. SONt~ order of dmial those portions of the record it be- that must remain open to all citizens. However, as we stated in Eichelberger v. Brueckheimer, 613 So. 2d I372, 1373 (Fla. 2d DCA 1993): This court, like'all others in this country, operates with a finite number of judges and support staff, and under a finite amount of time. Each case compctcs with all others for a fair division of judicial resourccs. The simplest case exhausts taxpayer funds; such costs arc seldom offset by filing fees which, in any event, are not assessed against indigents. Our power, and desire, to impose sanctions against pro ~e and/or indigent litigants is limited by the constitutional right of access to the courts, by the statutory ability of indigents to obtain court services at little or no cost,~ and by a well-recognized prin- ciple that non-laxxTer litigants not be penalized for any inability to c~Vdeer~att~i:L?hmoPliance with rules of procedure. None of these , ow~ver, should inhibit a court from stepping in to prevent abusive nuisance litigation. While pro ~e litigants may be given a Certain amount of latitude in their proceedings, they may not proceed in Such a f~hion as~lo abuse the judicial process, prejudicing the opposing party's interests as well aa other litigants' access to the judicial ~,stem. Federal Land Bank of Spokane v. Heidema, 224 Mont. 64, 68, 727 P.2d 1336, 1338 (1986). Motion granted; appeal dismissed; remanded for assessment of attorneys' fees. (FRANK, A.C.J., THREADGILL and BLUE, J$.. Concur.) · ~To ci~ but one ezample. Dienmnn ~sed m accept conespondencc from appellees' attorney begauR it was "not properly addressed" (no~tilhstanding the obvious ~ he ~'getved it}. Among the deficiencies poin~l out by Bier- mann ~ the abbeeviation ~f "Florida" and a failurz to place Biermann's "zip code" ia pan~mheses. *'If I were to accept an envelope that was improperly a.ddressed.,.*' B?.m~..nn conq~lained. "it would constitute a waiver ~. ,a. -:-,-.a__ _, ~ ':-: .... , aa oy inca acceptance, I would be partial tin asea l! 57.105(1}, 59.46, Fla. Stat. (1991): 'Peopte Against Tax Revenue Mi~rnanagement. Inc. v. Leon County Canvassing Board, 573 So. 2d 31 (Fla. Isa DCA 1990); T.I.£. Communicd~iotu, Inc. v. Toyota Motor; Center, Inc.. 391 .go. 2d 697 (Fla. ~d DCA 1980). ~lt should be noted that Biermann is' not. nor has he professed ~o be, indi. gent. We thcrefo~ ne~d not d~termine whether an assessment of attorneys' fees, under section 57.105, is.._permissible again.~ an ~ndt e .... m may Ig me. am~is when litigating wilh an indigent." Deibridge v. $cAaeffer. 238 N.J. Super. ~23. ~2 n.4, 569 A.2d 872. 876 n.4 (1989). But ~ee .$ouder v. Webb, 198 (Sa. App. 419,401 $.E. 2d 630 (i 991) {aflomey$' ~es Prol~:rty assessed in frivolous civil rights complaint filed by indigent). Criminal law--Post conviction relief--PortionS of record at- tached to denial of motion fail (o adequately refute defendant's . claim of ineffective assistance of counsel for failure to call certain witnesses vital to establishment of entrapment defense--Remand for evldentiary hearing JONATHAN R. MANLEY, Appellant v STATE OF FLORIDA A Il . 2nd District. Case No. 93-00783 tn-,in"~n'= ........ ' ppe ee ~o Fla. K. App. P. 9.140(i) Imm' '" ,,~a ~une 4. lyy;]. Appeal pursuant 5. Parker. Judge. m,. Ci~'uit Court for Sarasota County; James (PER CURIAM.) Jonathan Manley appeals the summary denial of his motion for postconvkaion r~lief following remand. We reverse. Manlcy claims that th~ trial court's order of denial on remand and the ~tachmenta~do not conclusively refute his claim of inef- fective assistance ol-counsel for failure Io call certain witnesses vital to the establishment of an ei.,rapment defense. We agree. On remand, the trial court a~ain denied Manley's motion and Reversed. '(RYDER, A.C.J., DANAHY and PATTER, JJ., Concur.) · Criminal law--Record.--Sealin~--Error to order that defen dane's court or judicial records be sealed without including nec- essary constitutional findings to justify sealing--Statute rizes courts to order the sealing of criminal history records suelI as police reports, altidavits, and witness statements $TATE OF FLORiDA, Appellant, v. ~.D.E., Appellee. 2nd District. Cas~ No. 91-03901. Opinion filed June 2. 1993. Appeal from the Ci~uit Court for Hills- borough County: Edward H. Ward, Judge. Robert A. Butterworth, Auome)l General, Tallaha~see, and Susan D. Dunl~T, Assistant Anomey GeneralI Tampa, for Appellant. No appearance by appellee. (PER CURIAM.) The state challenges the trial court's order sealing appellee's court records and criminal history recordsI concerning offenses to which appellee had pled solo contendere in 1987. We affirm in part and reverse in part. We agree with the state that the order regarding appellee's court or judicial records failed to include the necessary constitu-I tional findings to justify sealing. State v. P.D.A., 18 Fie. L. Weekly DI008 (Fla. 2d DCA Apr. 14, 1993) (on motion for clarification). However, regarding appellee's nonjudicial criminal records, I we do not agree with the state that the order was overly broad. The state, relying upon the definition of criminal history infor- mation in section 943,045(4), takes the position that only "rap sheets" constitute nonjudicial records subject to sealing underI section 943.058. Thus, according to the state, records such aa police repons, affidavits, and witness statements should not be sealed. We disagree because the broad language of 943.058(2) states that"the courts may order the sealing or expunction of any i other criminal histnty record." (Emphasis added.) Affirmed as to nonjudicial criminal records, reversed as to judicial records, and remanded for proceedings consistent here- i with. (DANAHY, A.C.J.,-and SCHEB, JOHN M., (Senior) J., Concur. ALTENBERND, J., Concurs specially.) (ALTENBEEND, Judge, specially concurring.) I concur in this decision because of our recent en bane opinion in State v. I P.D.,4., 18 Fla. L. Weekly DI008 (Fla. 2d DCA Apr. 14, 1993). The constitutional analysis addressed in the "majority's" opin- ion in P.D:,4. was approved by only six judges. Thus, this panel is not bound by that analysis. Nevertheless, I believe Judge I Biue's special concurrence effectively established a holding by a seven-judge majority which requires findings by the trial court in orders sealing such criminal court records. Our result today is compelled by the rule established in that special concurrence, i Even under the analysis suggested by my separate opinion in P.D.A., this case would probably warrant reversal. See 18 Fla. L. Weekly at D1009 (Altenbernd, J., concurring in part and dis- senting in part). The defendant pleaded nolo contendere to three I significant drag charges in 1988, when he was approximately thirty years old. His scoreshcet at that sentencing indicates a pti. or third-degree felony. The defendant wants his records sealed so he can attend nursing school and obtain a license as a nurse. The i defendant did not personally appear before this trial judge and provided no evidence that he has permanently overcome his problem with drugs. Under even a common law standard for expunction, a trial court should require more extensive evidence before it seals drug offenses to allow a person to pursue such a licensed Profession. 1993 -.~IN THE CIRCUIT COURT OF THE 19TH JUDICIAL CIRCUIT IN AND FOR INDIAN RIVER COUNTY, 'FLORIDA. APPELLATE DIvisION HERBERT G. STURM, Appellant, v~. CODE ENFORCEMENT BOARD & THE. CiTY OF SEBASTIAN, CIRCUIT CASE NO. 92-~396-CA-25 Appellee. ORDER DENYING THE PETITION FOR WRIT OF MANDAMUS THIS COURT HAVING REVIEWED the Appellant's Petition for Writ of Mandamus, and this Court noting that the remedy of mandamus is not available to Appellant in the circumstances herein, however this Court construing Appellant's Petition as a motion to compel the Code Enforcement Board attorney to represent the Code En- forcement board in this action, it is ORDERED that Appellant's Motion is DENIED. This Court considers that both the Code Enforcement Board and the City of Sebastian are parties to this appeal as Appellees. The Code Enforcement Board is a party-appellee by virtue of its being the quasi-judicial lower tribunal which rendered the order being appealed. As such, it does not have to file a brief in this matter. The City of Sebastian is likened to the State of Florida in a criminal appeal, that is, it is the party bringing the prosecution action against the individual Herbert Sturm lower tribunal, the Code Enforcement Board. As such, it in the is an Appellee which may file a brief in this action to defend both it~ bringing of the prosecution and the decision of the Code Enforce- ment Board. Therefore, it is 'FURTHER ORDERED that Appellant HERBERT STURM is to serve copies of all papers filed in this case on both the CODE ENFORCE- MENT BOARD and THE C. iTY OF SEBASTIAN by and through its attorney for the City= RICHARD TORPY, ESQ.,. as is required of Appellant pursuant to Fla.R.App. P. 9.420 (b) and (c) (1). FURTHER ORDERED that Appellant HERBERT STURM is to serve copies of al__~l prior papers filed by HERBERT STURM in this case upon Appellee City of Sebastian by serving the~ copies within fi.~teen ~ days of the date of this order on= RICHARD E. TORPY, ESQ. 930 S. Harbor City Blvd. Suite 505 Melbourne, FL 329.~1 Failure of Appellant to comply with this Court's order and with the Fla.R.App.P. may result in sanctions as permitted under Pla.R.App.P. 9.418. DONE AND ORDERED this day of June, 1993 in Fort Pierce, St. Lucie County, Flo'~ida. Copies furnished to: Herbert Sturm, Pro Se Richard Torpy, Esq. for Appellee 930 S. Harbor City Blvd., Suite 505 Melbourne, FL 32901 Code Enforcement Board JOHN E ~ENNE~'LY~ APPELLAT~ ADMINISTRATIVE JUDGE I I I I HERBERT G. STURM, Appellant, 1993 IN THE CIRCUIT COURT OF THE 19TH JUDICIAL CIRCUIT IN AND FOR INDIAN RIVER COUNTY, FLORIDA. APPELLATE DiViSION CIRCUIT CASE NO. 92-~396-CA~25 vs. CODE ENFORCEMENT BOARD & THE CITY OF SEBASTIAN, Appellee. ORDER DENYING THE MOTION TO DISMISS APPEAL FOR FAILURE TO FILE INITIAL BRIEF AS AMENDED TIMELY THIS COURT HAVING REVIEWED the Appellee's Motion to Dismiss the appeal because of Appellant's failure to file the amended initial brief by the date ordered in this Court's prior order entered May 7, 1993, and this Court noting that Appellant did fail to file his brief by the date ordered by this COurt, but this Court noting that Appellant is proceeding pro se and is not versed in the law or apparently does not Understand the of the appellate rules, it is ORDERED that the motion to dismiss the appeal is DENIED. is language It FURTHER ORDERED that from this date forward, Appellant shall comply with this Court's orders by filing papers as ordered by this Court by the date ordered by this Court. The appellate rule referenced by Appellant in his response to the motion to dismiss refers to thos'e "documents" "served" by mai~ by another party and not to the orders of this Court of which copies are furnished to the parties. When this Court's order says a document mu~t be filed by a certain date, then the document must be filed with this ' court by that date, even if this Court furnishes a copy of its order to the parties by mail. This Court's order of May 7, 1993 ordered Appellant to "file" an amended brief within thirty days of the Court's .order. That prder meant exactly what it said: that the amended brief .had to be "filed" with the Court within thirty days of its order. Appellant is directed to read the attached copies of cases which explain how the Fla. R.App. P. 9.42~ (d) rule-is interpreted, and how it .does not extend time to comply with this Court's orders. The cases attached are: ~ v. Atkins, 429 So.2d 852 (Fla. 4th DCA 1983) and ~ightower v. Berry, 49~ So.2d 1029 (Fla. 1st DCA 1986). For Appellant's edification, this Circuit is governed by the Fourth District Court of Appeal, and this Appellate Division is patterned after the Fourth District Court of Appeal in its interpretation of the Florida Rules of Appellate Procedure and how appeals are processed. Therefore, Appellant is to comply with this Court's orders and the Florida Rules of Appellate Procedure in accordance with this law. DONE AND ORDERED this '~ day of June, 1993 in Fort Pierce, St. Lucie County, Florida· Copies furnished to: Herbert Sturm, Pro Se, and Richard Torpy, Esq. for Appellee 930 S. Harbor City Blvd., Suite 505 Melbourne, FL 32901 Code Enforcement Board JOHN Eh FENNELLY / APPEL . T . JUDGE serving the initial brief' Lo and including served by mail. /For example, answer April 0, ].gaG.' The initial brief wu.~ filed briefs are due 2~ days after the InlLlal in this court on April 115, lg86, and bears a brief) Therefor, if the initial brief is certificate of service date of. April 11, ]9815. served by mail/the answer brief may be The brief was neither filed nor received by opposing counsel until almost a week after it was due, and appellee moved to dismiss the appeal as a sanction. In re~ sponse to this court's order to show cause, appellant states that the brief was placed in the mail late on April 11, 1986, Which was a Friday, and that counsel has no other explanation of the delay between the ser- vice date and the filing date. Counsel made no attempt to explain why the bric: was served two days after the established by our previous order. Although declining to impose sanctions, we take this occasion to clarify a common misunderstanding of Rule 9.420(d), Florida Rules of Appellate Procedure, which prO- rides: (d) Additional Time After Service by Mail, Whenever a party or clerk is re- quired or permitted to do an act within some prescribed time after service of a document, and the document is served by mail, five days shall be added to the prescribed period. The above-quoted rule does ~ot prpvide an additional five days' mailing time in all instances where a document is mailed. [1] First, we note that, by its'terms, the rule only applies to documents which are to be served and not to those required to be · fled, as, for example, notices of appeal and motions for rehearing (see infra footnote 3). Thus, under Rule 9.420(d), a party may add five days Lo the date a document is due only if the time period for doing an act is commenced by the service of a preceding document, and the preceding document is 1. Fla. R.App. P. 9.2100~. :L Fia.R.App. P. 9.420(c)(1). 3. Where an order required, for example, service 'within 10 days of the date of this order." the five.day time is allowable; but where Ihs order provides [or service within Jo many days of receipt of the order, no additional lime [or mall- ing is allowed. served, i.e., placed in the mail,z up to 25 days after the service date of the initial brief. Rule 9.420(d) does not permit a pat-~ ty t~ add five days to the due date when, as he~e,~ocum~n~r~s due to be either se ed br filed by a specified date: If a document is to be served by a specified date, the certificate of service must than that However, if a is to be filed by a date certain, that document must be physically lodged in the clerk's office no later than that specl- fled date.*~. [2,3] Based on 'the foregoing, it b+ comes clear that the initial brief, due April 9, had to be served' (by mailing or other- wise) on or before April 9, and was not timely. With that explanation being made and in view of common misunderstanding of the rule, we decline to impose the severe sanction of dismissal in this case, with a warning to counsel that futur~ noneompll-~ ~nce with requirements of the'Florida Rules of Appellate Procedure may result in the imposition of sanctions.~ BOOTH, C.J., and ERVIN and THOMP- SON, JJ., concur. 4. ,See, e.g.. Rule 9.330, Florida Rules of Appel. late Procedure, providing that a motion for re. hearing may be file~ within 15 d;~ys of an order and that a response Io the motion may be ~erveg within 10 days of s~rtn'ce of th~. motion. The motion must be filed with the .:ourt no later than 15 days of the order sought lo be reheard. but 5 days may be added to the dale the re- sponse must be served i! the motion was served by mail. IN THE CIRCUIT COURT OF THE 19TH JUDICIAL CIRCUIT IN AND FOR INDIAN RIVER COUNTY, FLORIDA. APPELLATE DIVISION CIRCUIT CASE NO. 92-0396-CA-25 HERBERT G. STURM, Appellant, vs. CODE ENFORCEMENT BOARD and CITY OF SEBASTIAN, Appellee. ORDER ON MOTION TO STRIKE REFERENCES TO CODE ENFORCEMENT BOARD AS APPELLEE THIS COURT HAVING reviewed the Appellee's motion to strike references to the Code Enforcement Board as Appellee, which was erroneously filed under Case No. 92-515, and this Court having reviewed the court file and otherwise fully advised in the prem- ises, it is ORDERED that Appellee's Motion to strike references to the Code Enforcement Board as Appellee is DENIED, so that this Court has jurisdiction over the Code Enforcement Board as a party to this action, and so that it is bound by the decision of his Court. DONE AND ORDERED this ~q ' day of ~ , 1993 in Fort Pierce, St. Lucie County, Florida. ~ j JOHN E.~ FENNELLY APPELLATE ADMINISTRATIVE JUDGE Circuit'~Court Copies furnished to: HERBERT STURM, PRO SE CODE ENFORCEMENT BOARD, CITY OF SEBASTIAN c/o RICHARD E. TORPY, ESQ. 'for Appellee 930 $. Harbor City Blvd. Suite 505 Melbourne, FL 32901 HERBERT G. STURM, Appellant, vs. CODE ENFORCEMENT BOARD and CITY OF SEBASTIAN, Appellee. ,,AY 2 1 93 IN THE CIRCUIT COURT OF THE 19TH JUDICIAL CIRCUIT IN AND FOR INDIAN RIVER COUNTY, FLORIDA. APPELLATE DIVISION CIRCUIT CASE NO. 92-0396-CA-25 ORDER ON MOTION TO STRIKE APPELLANT'$ INITIAL BRIEF THIS COURT HAVING reviewed the Appellee's motion to strike Appellant's initial brief, which was erroneously filed under Case No. 92-515, and this Court having reviewed Appellant's initial brief, it is ORDERED that Appellee's Motion to strike Appellant's initial brief is GRANTED. Appellant shall have thirty days from the date of this order to file an amended initial brief which adheres to the Florida Rules of Appellate Procedure, which lists and numbers in the Table of Contents under the subheading "Points on Appeal" the legal issues raised on appeal stating the alleged legal errors made by the lower tribunal under the law, and 'which con- tains a summary of the case and facts with references to the pages in the record filed with this Court showing where the fact is found in the record. No references may be made in the brief to facts which cannot be found in the record filed herein. Argument shall be separate from the summary of the case and facts. DONE AND ORDERED this day of , in Fort Pierce, St. l..~u¢ie County,~.~id~·~.~ APPELLATE ADMINISTRATIVE JUDGE CircUit Court Copies furnished to: HERBERT STURM, PRO SE CODE ENFORCEMENT BOARD, CITY OF SEBASTIAN RICHARD E. TORPY, ESQ. for Appellee 938 S. Harbor City Blvd. Suite 505 Melbourne, FL 32901 1993 BERBERT G. STURM, IN TBE CIRCUIT COURT OF 19TH JUDICIAL CIRCUIT, IN AND ~R INDI~ RIVER COUNTY, F~DA · APPELLATE DIVISION CIRCUIT CASE MO. 92-0396-CA-25 COUNT~: INDIA~ RIVER L.T. NO. - ~P~E~ FROM CODE ENFORCEMENT BOARD, ~BASTIAN Appellant, ...... - .... V~'." ' .... CODE ~NFORCEMENT BOARD OF CITY O~ SEBASTIAN, I I I I Appellee. / ORDER ON APPELLANT'S MOTION FO___~R EXTENSION OF TIME ORDERED that Appellant's MotiOn for Extension of Time shall the initial brief is GRANTED. The initial brief filed in this Court no later than January 5, 1993. DONE AND ORDERED this t 3 ~ay of November, Fort Pierce, St. Lu¢ie Coont~~- JOHN' ~, FENNgLLY Aam~t~at ire App& i~te tO Judge 1992 in the for g ' . · d b U S. ~ERT G. STU~, Pro ~e Appekl=nt, 549 ~ers seba~ti~, ~ 32958; CODE ~FORC~ BO~ OF CIT~ OF S=B~TI~, P- O- Box 780127, Sebasti~, PL 32978 on this '13=h day of = NOv~er .... ~.. . __, 1992. Trial Co~t Law 19~ Ju~cial Circui% IN THE CIRCUIT COURT OF THE NINETEENTH JUDICIAL CIRCUIT IN AND FOR INDIAN RIVER COUNTY, .FLORIDA. APPELLATE DIVISION CIRCUIT CASE NO. 92-0396-CA-25 COUNTY: INDIAN RIVER L.T. NOS. APPEAL FROM CODE ENFORCEMENT BOARD CASE NOS. 92-6345, 92-6348, 92-6418, 92-6436 HERBERT G. STURM, Appellant, vs. CODE ENFORCEMENT BOARD OF CITY OF SEBASTIAN, Appellee. ORDER ON MOTION TO COMPEL CLERK TO FILE RECORD IN ACCORDANCE WITH APPELLANT'S DIRECTIONS TO CLERK. ORDERED that the Clerk for the City of Sebastian Code En- forcement Board shall file with the Circuit Court, Appellate Division, by filing with the Clerk of the Court for Indian River County, those items listed below which are not included in the Clerk's Index filed to date, but which were listed in Appellant's Directions to the Clerk dated June 29, 1992: 1. The four complaints, including the back sides of any papers, in cases 92-6345, 92-6348, 92-6418, 92-6436. If the Notices of Violation filed by the Clerk on August 3, 1992 constitute the the Clerk complaints sought to be reviewed by Appellant, then shall so note in her Notice of Filing. 2. The agenda for the regular meeting on May 20, 1992. 3. The minutes for the regular meeting held May 20, 1992. 4. Copies of the three building permits to Mr. Sturm, as men- tioned apparently by Mr. Cooper at the May 20, 1992 hearing. 5. Copies of ordinances Sections 2-91 through 2-110. 6. Copy of Section 20 A-5.16. FURTHER ORDERED that if the Clerk is unable to index and file any of the above items with the Circuit Court, then the Clerk shall file a statement with this Court, by filing same with the Clerk of the Court, Indian River County, explaining why the item cannot be included in the Record on Appeal, as directed by Appellant. FURTHER ORDERED that the additional items included in the Record on Appeal, apparently at the direction of Appellee/Re- spondent shall remain in the record. ORDERED that the Clerk for the City of Sebastian Code En- forcement Board shall file the above items or the explanation why the above items cannot be included in the Record on Appeal and filed with this Court no later than November 30, 1992. DONE AND ORDERED this ~1~7'~- day of October, 1992 in Fort Pierce, St. Lucie County, Florida. . !,~ ~ ~.~~ JOHN Et FENNELLY AdminiStrative Appellate Judge i I I I I I i I I I I I I I I I I I I ~RR~BY CERTIFY that a true and correct/conformed copy of the foregoin~ order entered in Circuit Case No. 92-0396-CA-25 filed in Indian River County was furnished by U.S. Mail to the addressees listed below: Herbert G. Sturm, Pro Se Appellant, 549 Saunders Street, Sebastian, FL 32958; and City Clerk, Code Enforcement Board, P. O. Box 780127, Sebastian, FL 32978; and RICHARD E. TORPY, ESQ., Attorney for Sebastian Code Enforcement Board, 930 S. Harbor City Blvd. Suite 505, Melbourne, FL 32901 on this 21st day of October , 1992. ~e~5~ah A. ~aw~er /f Trial Court Law Clerk//~/Staff Attorney to the Appel~te Panel 19th Judicial Circuit SEP 199 iN TNE CIRCUIT COURT OF THE NINETEENTH JUDICIAL CIRCUIT IN AND FOR INDIAN RIVER COUNTY, FLORIDA. APPELLATE DIVISION HERBERT G. STURM, CIRCUIT CASE NO. 92'-0396-CA-25 COUNTY: INDIAN RIVER L.T. NO. 92-6345, 92-6348, 92-6418, 92-6436 OF CODE E~ORCEMENT BD. CITY OF S~BASTIAN Appellant, CODE ENPORC~MENT BOARD OF CITY OF $~BASTIAN, Appellee. ORDER ON APPELLANT'$ MOTION FOR EXTENSION OF TIME ORDERED that Appellant's Motion for Extension of Time is GRANTED. Appellant shall file his initial brief with this Court no la,er than November 10, 1992. DONE AND O~.RED this day of 5 ~. . 1992 in Fort Pierce, St. Lucie County, Plorida. Admini~rat~ve Appellate Judge IN ~HE CIRCUIT COURT OF THE NINETEENTH JUDICIAL CIRCUIT IN AND FOR INDIAN RIVER COUNTY, FLORIDA. HERBERT G. STURM, APPELLATE DIVISION CIRCUIT CASE NO. 92-0396-CA-25 COUNTY: INDIAN RIVER L.T. NO. 92-6345, 92-6348, 92-6418, 92-6436 COPE ENFORCEMENT BD. CITY OF SEBASTIAN Appe 1 lan t, CODE ENFORCEMENT BOARD CITY OF SEBASTIAN, Appellee. ORDER ON APPELLANT'S PETITION P0R WRiT OF MANDAMUS ORDERED SUA SPONTE that Appellant's pleading styled "Peti- tion for Writ of Mandamus" shall be deemed a Motion to Correct the Record under Fla.R.App. P. 9.200 (f). See Fla. R.App.P. 9.040 (c) wherein this Court may treat a cause as if the proper remedy had been sought though the party filed for an improper remedy. ORDERED SUA SPONTE that the. Appellant HERBERT G. STUP~ shall supplement his Motion to Correct the Record with the following, as this Court is unable to decide the Motion without more infor- mation: 1. Certified copy of the Appellant's Directions Cl{~rk, dated June 29, 1992; to the h.,ve been omitted from the record that Appellant wants J a the record. A statement from Appellant listing in detail which items included P.4/5 I ' I the I ! · -~ ! ........... ---~ A Statement from Appellant on what additions to record have been made that Appellant thinks should not be includ- ed in the Record, and the reasons why. ORDERED SUA SPONTE that Appellant shall comply with this Order by filing the above items in writing with this Court no later than fifteen (15) da~ from th_..~e dat~e of this Order. DONE .~%ND ORDERED this __/'~ day of 1992 in Fort Pierce, St. Lucie County, Floriaa. ~ "' JOBN E. ~NN~.LLY Administrative Appell Judge SEP 03 ~9~ Oi:~8PM 'i HEREBY CERTi~'~ that a %ru~ and correct/conforme~ coDY of the foregoing order entered in Ci~cuit Case Nc. 92-396-CA-~? filed in 7~D!A~ ~!~ County was furnished by U.S. Mail to the addressees listed below: MR. HERBERT G. STURM. 549 Saunders Street, Sebastian, Florida 32928 CODE ENFORCEMENT BOARD, P.O. Box 780127, Sebastian, FLorida 32978 . . on thi~ AJ-- ~ay o: ~'7'- . .......... , ~9~. Trial Court Law Clerk & S~af~ Attorney to the Appellate Panel 19th Judicial Circuit IN THE CIRCUIT COURT OF THE 19TH JUDICIAL CIRCUIT IN AND FOR INDIAN RIVER COUNTY, FLORIDA. APPELLATE DIVISION HERBERT G. STURM, Appellant, vs. CODE ENFORCEMENT BOARD and CITY OF SEBASTIAN, CIRCUIT CASE NO. 92-~515-CA-25 Appellees. ORDER DENYING MOTION FOR RELIEF FROM JUDGMENT THIS COURT HAVING REVIEWED the. Appellant's motion for relief from judgment filed in this case which has been dismissed by this Court, and this Court noting that such a motion is not permitted under the Florida Rules of Appellate Procedure, since it is a motion available in trial court under the rules of civil proce- dure, it is ORDERED that Appellant's motion is DENIED. FURTHER ORDERED Appellant shall not file any additional paper' with this court in this or any other case in this circuit pro se without going through an attorney. From the date of this order, Appellant must appear in this Court' and file papers with this court, or initiate any legal action in this Circuit, only by appearing through an attorney. Appellant shall not proceed without cult. This means that only an attorney representing may file papers or initiate legal action on'behalf of in this Circuit. Appellant has refused to comply an attorney in any matter before the Court in this Cir- Appellant Appellant with ~ Court's orders or learn and properly apply the rules of proce- dure, despite repeated admonitions by this Court to do so. Biermann v. Cook, 18 FLW D1382 (Fla. 2d DCA June 4, 1993). Fail- ure of Appellant to comply with this Court's order will subject Appellant to an order to show cause why Appellant should not be held in contempt of court and punished accordingly, by fine or imprisonment. DONE AND ORDERED this day of 1993 in Fort Pierce, St. Lucie County, Florida. JO N_ . Copies furnished to: Appe~ate Administrative Judge HERBERT STURM, Pro Se RICHARD TORPY, ESQ., for Appellees HERBERT G. STURM, Appellant, vs. CODE ENFORCEMENT BOARD & THE CiTY OF SEBASTIAN, Appellee. JUN Z 8 IN THE CIRCUIT COURT OF THE 19TH JUDICIAL CIRCUIT IN AND FOR INDIAN RIVER COUNTY, FLORIDA. APPELLATE DIVISION CIRCUIT CASE NO. 92-515-CA-25 / ORDER DENYING APPELLANT'S MOTION FOR REHEARING RE DISQUALIFICATION OF JUDGE T~I$ COURT HAVING REVIEWED that paper filed her~in by Appel- lant entitled "Response to Appellee's Response to Motion for Disqualification of Judge" which was filed by Appellant on .June 17, 1993, after this Court had previously entered its order denying the motion to disqualify judge as being legally insuffi- cient, and this Court having reviewed the Appellant's Motion for Rehearing on this Court's.order of June 11, 1992 which denied the motion to disqualify judge, it is: ORDERED AND ADJUDGED that the motion for rehearing of the denial of the motion to disqualify judge is DENIED. The Court finds that the motion for rehearing and the original motion for disqualification remain legally insufficient as the legal re- quirements for making a motion to disqualify a judge were not met. See also Fischer v. Knuck, 497 So.2d 240 (Fla. 1986) and Claughton v. ~hton, 452 So.2d 1073 (Fla. 3d DCA 1984)o Further, this Court notes that this appeal has been dismissed, so there is actually no case from which this Judge can disqualify himself. FURTHER ORDERED that as Appellant's motion for rehearing of this ' Court's order entered June 11, 1993 continues to re-argue this Court's order of dismissal, that Appellant shall read the following cases prior to filing any further motions for rehear- ing: 1. Whipple v. State, 431 So.2d 1011 (Fla. 2d DCA 1983); 2. Sherwood v. State, 111 So.2d 96 (Fla. 3d DCA 1959); THIS COURT FURTHER FINDS that this Court did not overlook Appellant's response to Appellee's response to ApPellant's Motion to disqualify judge because Appellant's response to the Appel- lee's response was filed June 1--7, 1993, after this Court's order denying the motion for disqualification was entered on June 11, 1993. This response filed by Appellant on June 17, 1993 to a response filed by Appellee was not permitted under the Florida Rules of Appellate Procedure, and further was postde¢ison argu- ment. See also ~ of Revenue v. Leadership Housing, inc., 322 So.2d 7 (Fla.1975). Appellant is directed to read the case cited in this paragraph prior to filing any further motions. ORDERED AND ADJUDGED that the parties are directed to comply with this Court's local rule number 9 concerning unnecessary and excessive motion practice., including a "response" filed in re- sponse to a response to a motion, especially when such motion has already been ruled on. The parties are directed to read Dubowitz v. C~ntury Village East, Inc., 381 So.2d 252 (Fla. 4th DCA 1979) prior to filing any further papers in any case before this court in which any of the parties are also participants. The parties are also directed to read Kleinfeld v. State, 270 So.2d 22 (Fla. 3d DCA 1972) and Biermann v. Cook, 18 FLW D1382 (Fla. 2d DCA June 4, 1993) prior to filing any further papers with this court in this or any other case pending in the 19th Judicial Circuit. A copy of the Biermann case is attached to this order for the parties' immediate reading. Failure of the parties to rea~ these cited cases as direct- ed prior to filing any further papers with this Court or failure to refrain from unnecessary and frivolous motion practice (in- cluding failure to refrain from the filing of a ~esponse to a response without leave of this Court to do so) in this "case" or any'other case that comes before this court may result in sanc- tions being levied against the party violating this order, or in the alternative the institution of a criminal contempt procedure against the party violating this Court's order, which may result in either fine or imprisonment. FURTHER ORDERED that Appellant shall not file any further motions for rehearing which merely re-argue matters already argued before this Court or which bring up matters for argument on rehearing which were not brought up on the original motion prior to a motion for rehearing. Appellant shall not reargue the order of dismissal in any subsequent motions for rehearing. If Appellant files further papers in this dismissed appeal, Appel- lant shall file motions for rehearing which comply with the law set out in Sherwood and Whipple cited above and which are not barred 'by Fla. R.App. P. 9.330 (b). (However, this Court is at a loss to understand why Appellant continues to argue over a case that has been dismissed because the underlying order has been rescinded, so that Appellant has no code enforcement order to complain about, or appeal.) If Appellant continues to file motions which are without merit or without authorization under the appellate rules, such improper motions may be stricken by this Court. See Biermann cited above. FURTHER ORDERED that Appellant shall read the case listed below prior to filing any further motions with this court so Appellant who is pro se and not trained in the law understands that failure to comply with this court's orders and the rules of appellate procedure in any appellate proceeding before this court may constitute criminal contempt or result in the levying of sanctions: Pippin v. Lee, 567 So.2d 990 (Fla. 1st DCA 199~). FURTHER, this Court notes that the orders complained of by Appellant in his response to the Appellee's response, which were supplemented to the record, are (1) filed in a case other than this case whose Case Number is 92-515-CA-25; and (2) in that other case Appellant failed to show by the arguments made by Appellant in his response filed September 14,. 1992 to this Court's order of September 1, 1992 in Case No. 92-~396-CA-25 why the record should not be supplemented with these orders. For example, the argument made by Appellant in his "Filing of State- ments as Directed" was meritless in light of Fla.R.App.P. 9.200 (f) which allows the record to be supplemented despite the lack of a specific Direction to the Clerk from a party and 9.'600 (a) if the orders are a procedural matter. Appellant cannot complain of adverse rulings if it is Appellant's failure to make proper or legally persuasive argument that results in adverse rulings. Further, Appellant cannot now revisit this issue other than to make.argument in Appellant's brief filed in that case, if Appel- lant believes it is necessary to do so. FURTHER ORDERED that as the Court finds that Appellant continues to be confused as to the meaning of the Florida Rules of Appellate Procedure, Appellant is directed to read as well Fla.R.App. P. 9.200 (f) re supplementing the record and Fla. R.App. P. 9.6~ (a) re concurrent jurisdiction, as well as .Fla.R.App. P. 9.11~ (e) on when the record is transmitted. The Court has taken the time to explain these matters to Appellant because Appellant's lack of knowledge and understanding of the rules and the law is not only affecting Appellant in failing'to make legally persuasive arguments, but is also appar- ently resulting in Appellant's filing of meritless motions, especially as Appellant continues to expend time and effort to file motions in a case that no longer exists because of an order dismissing the appeal, which is a factor indicating the frivolous nature of these motions. Appellant is again cautioned to seek legal advice before continuing in any appeal before this court. Regarding this court's order denying Appellant costs, if Appellant still does not understand that order, Appellant should read Rule 9.400 (a), American Medical International, Inc. v. Scheller, 484 So.2d 593 (Fla. 4th DCA 1985), Phares v. Cowles, 459 So.2d 1110 (Fla. 4th DCA 1984) as well as the other cases cited herein regarding motions for rehearing. Further Appellant is directed not to seek legal advice from either the Clerk of the Court's office or the Law Clerk who assists the Appellate Panel, nor shall Appellant argue with these personnel because they do not comply with Appellant's request for legal advice. Their positions are such that they are prohibited ethically from giving Appellant legal advice on how to proceed with his appeal. If Appellant needs, legal advice, he must employ an attorney, or educate himself through extensive legal research in the law library. Finally, as Biermann states, pro se liti- gants as well as attorneys shall conduct themselves respectfully before the court and with honest effort .abide by the rules of procedure. If Appellant was not aware of the law or rules in this regard and merely acted out of ignorance, then this Court has hereby given the Appellant an opportunity to become aware of the legal significance of certain actions, and so the Appellant now has the opportunity to conduct himself in accordance with the law in all proceedings and papers filed with this the court from this date forward. DONE AND ORDERED this ~.~ day of June, 1993 in Pierce, St. Lucie County, Florida. ~ ~,~ Copies furnished to: HERBERT STURM, Pro Se Fort JOHN E.~FENNELLY ~ Appellee Administrat e Judge RICHARD TORPY, ESQ. Appellee Attorney 930 S. Harbor City Blvd. Suite 505 Melbourne, FL 32901; and Code Enforcement Board ..... DISTRiCT COURTS OF APPEAL :-' · .... · ; 8 Fla. L. Weekly 1 2' ..... an order stating that FF_~4 had' satisfied the rexluirements' of rule 1.442(h) and awarded FEM costs. The court impliedly granted Liebling's motion for costs by setting off Liebling's costs, in- curred prior to the service of the offer of judgment, against FEM's award. In State Farm Mutual Automobile Insurance CO. v. Lathrop, 586 So. 2d 1125 (Fla. 2d DCA 1991), this court developed an analytical framework to determine whether sanctions should be imposed pursuant to rule 1,442. Lathrop concluded that the starting point in implementing the rule, and vital to a finding that the rejection of an offer was-_.q~~, is a determination that . · ........ - .... unreasonable delay and need- the offeree s rejection cau~c~ ,at ~ + .~ rn't ~.A ~.~., less increase in the cost of litigation. ~atnrop, ~o oo. ~u ~, 1127; Fla. R. Civ. P, 1.442(h)(1)(A). Next a determination must be made that the offer was refused and the daraage award in favor of the offeree is less than 75 % of the offer, or thc damages awarded the offeror are greater than 125% of the refused offer. Lathrop, 586 So. 2d at 1127. The trial court's order correctly notes that the damages awarded here were less than 75 % of FEM's offer; however, the order does not addr~s whether Liebling's refusal to accept the increase ia tine cost Ol litigation, ta~v ~ uv aid this court ia making that determination. Therefore, we re- mand for the trial court to have a hearing on this issue and to make a determination as to whether or not the refusal caused unreasonable delay and needless increase in the cost of litigation. As to Liebling's second issue on appeal, we reverse and re- mend for the trial court to award l..iebling his taxable costs. This was a one-cotmt complaint ttpon which the jury found FEM ~quirem~ttorlx~ailymjurywasnotm~' ~'~.~ . · 627 737(2), Florida Statute (1991), the fact remains that Liebhng is the nrevailing party in this c.~e and, as such, is eat!fled_to his taxable ~'--~.041(1), Fin, Stat. (1991); Hendry -~ractor Co. v. Fernandez, 432 SO. 2d. 1315 (Fla. 1983). Reversed and remanded for further proceedings consisteat with this opinion. (RYDER, A.CJ., and PATTERSON, J., Concur.) Appeals--Appeal brought by pro se appellant is without justiciable issue of law or fact and was brought in bad faith-- Appeal d~d~Motion for imposition of sanctions upon appellant granted--All pending motions filed by appellant stricken a~ unauthorized by Rules of Appellate Procedure~ Appellees are awarded attorn.es's fees in, a,m, ount to ~be..~t_b~Y ~t~i~aal' court on remand to c~er co~ reasons.my ?c.u.r~..u ~! ing to nppeal~Portion of trial court oraer oecumng to ne. ar ings which may ~ill be reqmrea amrmeo~trm~ co consider additional sanctions including attorney's fees and cita- tion for contempt of court in event appellant, after remand, persists in I~ abuses of judicial system WILLIAM M. BIERMANN, Appellant, v. ROBERT C. COOK and PATRI- CIA M. COOK, hR wife. Appellet:~. 2nd District. Ca~e No. 92-03235. Opin- ion ~ed June 4, 1993. Appeal from the Ci~cui! Court for Highlands County; J. David Langfot, d, Judge. William M. Bi~rma~m. pro sc. Clifford R. Rhoadca, Sebring, for Appellees. ON MOTION ]:OR SANCTIONS (PER CURIAM.) Appellees Robert and Patficia Cook move this court to impose sanctions upon appellant Williara Bierm:~nm They ask us to fred that the present appeal, insofar as it attempts to relitigate matters that are resjudicata, is "frivolous, [filed] in bad faith, and intended solely to harass the appellees and cause them to incur attorney's fees in protecting their interests." An examination of the record readily reveals that appellees' point is well-taken. . In 1978 Biermaun a ,~_uired title to .re. al prop. e. rty t.n .Lake p. lac~ id. Desoite Biermarm s claim that tins consututea nomesteao property, it was later seized and sold to satisfy an Internal Reve- nue Service tax lien. Robert and Patricia Cook were the purchas- ers. In 1988 appellees filed an action to quiet title and for eject- meat. The circuit court granted summa~ judgment for appel- lees, Biermann appealed, and this cou_rt_ _afl)_?ed~ ~wi~th, o~ut ,o~P~t~[ ion. Biermann v. Cook, 570 So. 2d 130~ (l~la. ~a ~,~ (table). Biermann then filed a document entitled "new evidence pre- sented as compulsory judicial notice and motion to vacate judg- ment filed November 30, 1988" in which hc took issue with'the circuit court's findin~ (nearly three years earlier) that the federal district court had remanded this case to state court. Biermann also filed a "cross motion for summary judgment" and various other unorthodox pleadings. The circuit court correctly treated Biermann's efforts as a motion to vacate pursuant to Florida Rule of Civil Procedure 1.540 and, on May 8, 1992, denied all re- quested relief. At some point in the proceedings Biermann claims to have "learn[ed] how the courts of this great nation are controlled by thc Uniform Commercial Code," as the result of which hc filed a ' rne *' · 'notice of revocation of signature and power oI atto y under which he "revokes and makes void .., ail signatures on any instruments and any express or implied power of attorney there- with, in fact or assumption, signed either by him or anyone acting as his agent, presumed to be signed, or unsigned, as it pertains to this case. Biermann next served a "demand" upon the presiding circuit judge, three additioaai motions for rehearing, a"notice of dishonor," and a second "notice of revocation of signature and power of attorney," Suffice it to say that each and every one of these documents and the complaints contained therein are frivo- lous beyond reasonable doubt.t The circuit court's order of July 13, 1992, which denies Bier- mann's motions for rehearing, ia the orde. r that Biermam~ now appeah. Since commencing the appeal Biermann has inundated this court in similar fashion. Ia addition to an initiai brief we have received such items as Biermana's "Notice of Errors and De- mand UponThis Court" and a "Judicial Notice, Demand Upon This Court, and Notice of Dishonor." These documents are replete with wide-ranging conspiracy theories involving appel- lees and their attorney, the organized Bar, international bankers, and others. None presents even a preliminary basis for relief. No court is obligated to permit a litigant "to take advantage of the court as the forum to express his personal criticism and castiga- tion not only of his adversary but of opposing counsel, court staff, and judiciary." Continental National American Group v. Majeske, 30 Conn. Supp. 567, *, 305 A.2d 291,292, cenifca- tion denied, 164 Conn. 708,302 A.2d 293 (1973). Accordingly, this court orders as follow~: (1) All pending motions filed by Biermann axe hereby stricken as unauthorized by the Florida Rules of Appellate Procedure; (2) Appellees' motion for sanctions is granted; 3 This court finds that Biermama's appeal is utterly without ( ) .... d is brought in bad "a justieiable.~ssue of e~ther law or fact an : ith For this reason the appeal is hereby dismissed; · ~- · ' ~ in an amount to be (4) Appellees are awarded attorneys fees, set by the circuit court after remand, sufficient to cover any costs reasonably incurred in responding to this appeal; (5! This court specifically approves that portion of the circuit court s order of June 9, 1993 (amended June 23), which decline~ to hear "[any] other matters [in this case] save routine postjudg;~,~,. ment proceedings which may still be required." In the e..v~.. Biermann, after remand, persists in. his ,a,b.u..ses?f~tioU~C~ .~ system, the circuit court may consioer aamuona~ sau cluding attorneys' fees and citation for contempt of court. I~. the Southern Reporter, in the hope it may come to mc. att ,e?~m~.~ i persons contemplating lawsuits, appeals, or other lega~ a~ without the assistance of counsel This case represents only.t. " ' ma' ' t~ tip ora growing iceberg of such liugauon. The ~t~ litigants conduct themselves, if not always with the expertise of ~ ~tonae. ya, .r~pectfully, candidly, and with honest effort to anme 05' nates oI procedure. Most, that is, but not all. If ill- advised, vexatious appeals were only a minor annoyance, we would accept them as an unavoidable aspect of a court system that must remain open to all citizens. However, as we stated in Eichelberser v. Brueakheimer, 613 So. 2d 1372, 1373 (Fla. 2d DCA 1993): This court, like all others in this country, operates with a finite ri. umber of judges and support staff, and under a finite amount of nme. Each case competes with all others for a fair division of judicial resources. The simplest case exhausts taxpayer funds; such costa are seldom offset by filing fees which, in any event, are not assessed against indigents. Our power, and desire, to impose sanctions agalrLst pro se and/or indigent litigants is limited by the constitutional right of access to the courts, by thc statutory ability of indigents to obtain court services at little or no cost,~ and by a well-recognized prin- ciple that non-la~5,er litigants not be penalized for any inability to observe strict compliance with rules of procedure. None of these considerations, however, should inhibit a court from stepping in to prevent abusive nuisance litigation. While pro se litigants may be given a certain amount of latitude in thei~ proceedings, they may not proceed in such a fashion as' !,o. .abuse the judicial process, prejudicing the opposing party s interests as well as other litigants' access to the judicial system. 727 P. Rd 1336, 1338 ~1~8~).-''' v. HeMema, 224 Mont. 64, 68, Motion granted; appeal dismissed; remanded for assessment of attorneys' fees. (FRANK, A.C.Z, THREADGILL and BLUE, M., Concur.) ~To cam lint one example, Bicrmann refused to accept correspondence from appellees' allomay because it was "not properly nddres,v.,d" (notwithstanding the obvious fact hc received it). Among thc deficiencies pointed out by Bier- mann was the abbreviation of "Florida" and a failure to place Biermatm's "zip code" in parenthea~. "If I were to accept an envelope that was improperly addrr, aa~," Biermann complained, "it would constitute a waiver of my Ged- given unal~nable rights; aa well as by such acceptance, I would be participating in the violation of Florida procedure." ~$ee §§ 57,105(I), $9,46, Fla. Stat. (1991); People Against Tax Revenue Mismanagement. Inc. ~. Leon County Canvassing Board, 573 So, 2d 31 (Fla. Ist DCA 1990); T.I.E. Communict~ioas, Inc. v. Toyota Motors Center, Inc., 391 So. 2d 697 (Fla. 3d DCA 1980}. ~It should be noted that Biermann is not. nor has he profes~e~:l to be, indi- gent. We therefore need not determinu whether an assessment of attorneys' Realirdcally, such sancuons r~i~;~Oe~hcn litigating with an indigent." Delbridge r. $chaeffer. 238 N.J. Super. 323. 332 n.4. 569 A.2d 872. 876 n.4 (1989), But ~ee $ouder v. Webb, 198 Ga. App. 419,401 S.E. 2d 630 (1991) (a~omeys' ie=s properly assessed in frivolous civil right~ complaint filed by indigent). Criminal law--Post conviction relief--Portions of record at- tached to denial of motion fail to adequately refute defendant's claim of ineffective assistance of counsel for failure to call certain witnesses vital to establishment of entrapment defense--Remand for evidentiary hearing JONATHAN R. MANLEy, Appellant, v. STATE OF FLORIDA, Appellee. 2nd District. Case No. 93-00'/83. Opinion filed June 4, 1993. Appeal pursuant to Fla. R. App. P, 9.140Lg) from ~ Circuit Court for Sarasota CounD,; James S. Parker, Judge. (PER CURIAM.) Jonathan Manlcy appe~s the summary denial of his motion for postconviction relief followiug remand. We reverse. Manle¥ claims that the trial court's order of denial on remand and the attachments do not cone. luaively refute his claim of inef- fective aa$istanc~ of coumel for failure to call certain witnesses vital to the eatabli.shnmat of an e~.,rapment defense. We agree. On remand, the trial court again denied Manley's motion and ts.ordea' of denial tho~ portions of the record it be- liev~ ~nelusively reMt~ considering ~e attachments, we ~e not satisfi~ ~at ~ey ade- quately reMte M~ey'a ~se~ion of ineff~tive ~$i$m~ of co--el. A~rdingly, we reverse ~d rem~d for ~ evidenti~ h~Mg. Reve~. (RYDER, A.C.J., DANAHY ~d PATERSON, JJ., Concur.) CrimMal law~Reeord~Hng~Error to order ~t def~- dent's court or ju~l recor~ be ~led ~thout ~cluding nec- es~ry co~tufional findMgs ~ j~fy ~Hng~mmte au~ r~es cou~ to order ~e ~ling of cr~al h~to~ recor~ such aa ~lice re~ru, a~vi~, and ~m~ ~men~ ~A~ OF ~A, A~llant, v. J.D.E., Ap~llee. 2~ Di~cc ~ No. 91~3~I. OpiMon ~ Junc 2, 1~3. Ap~ from ~c Ci~uit Court ~r Hills- borough Count; Gene~, Tal~, ~ Su~ D. ~eW. ~t ~m~ ~, %mpa, for Ap~l~t. No ap~ ~ a~l~. (PER CU~.) ~e s~te ~l~g~ ~e ~ ~'s oMer s~Mg appell~'s ~u~ ~r~ ~d ~ h~to~ ~r~ ~n~g offemes to wM~ ~1~ ~d pl~ nolo ~atende~ m 1987. We~ inp~ ~d re~=e Mp~. We ag~ wi~ ~e state ~t ~e oMer ~g~dMg ~ll~'s ~u~ orjudici~ re~rds failed to Mclude ~e n~s~ ~tim- tio~ findings to justi~ s~Mg. Stye v. P.D.A.. 18 Fla. L. W~y DI~8 (Fla. 2d DCA Apr. 14, 1993) (on motion for cl~ifi~tion). However, ~g~dMg appell~'s nonjudici~ c~ ~Ms, we do not agra wi~ ~e state ~t ~e o~ ~ ~ly bmr. ~e s~e, ~lying upon ~e de~on of ~ ~o~ i~or- ration in ~fion sh~" ~timte nonjudici~ ~Ms ~bj~t to ~g ~der s~tion 943.058. %ns, a~rding to ~e police ~pom, ~davi~, ~d wimps s~ed. We disagree bemuse ~e bro~ lm~e of ~3.058(2) states ~at "~e ~u~ may order ~e s~g or ~c~on of~ other cfi~n~ histo~ ~rd." (Emph~i~ ~d~.) A~ ~ to nonjudici~ c~ ~Ms, ~ ~ to judici~ ~rds, ~d retarded for pro~Mgs ~miat~t he~- with. (DANAHY, A.CJ., ~d SCHEB, JOHN M., (Senior) J., Concur. ALTENBERND, J., Concurs speci~ly.) (ALTENBERND, Judge, speciMly ~neu~g.) I ~n~r decision bemuse of our re,at en b~c opiMon in Stye v. P.D.A., 18 Fla. L. W~y DI~8 (Fla. 2d DCA Apr. 14, 1~3). %e ~nstitution~ ~ysis address~ in ~e "~jofi~'s" opM- ion in P.D.A. w~ approv~ by oMy six judge. ~, ~ p~el is not bound by that ~ysis. Neve~el~s, I. believe Judge Blue's speei~ concu~en~ eff<tively ~t~li~ a holdMg ~ a seven-judge ~jority which tequila findings orders seMing such cri~n~ cou~ re~rds. Our r~ult t~y ~mpelled by the ~le established in ~at ap<i~ ~ncu~en~. Even under ~e ~ysis FD.A., ~is c=e would probably w~t reverse. See 18 Fla. L. Weekly at Dl~9 (Altenbemd, J., ~ncu~g M p~ ~d dis- senting in p~). ~e defender pl~ nolo ~ntendere to signific~t d~g ch~g~ in 1988, when he w~ approximtely thi~y y~s old. His s~r~heet at ~at sentencMg indi~t~ a pti- or third~egree felony. ~e defend~t he c~ attend nursing school ~d ob~n a li~e ~ a num. %e defender did not pe~oa~ly app~ before ~is tfi~ judge ~d provid~ no evidence that he h~ ~en~y ore,me his problem wi~ d~gs. Under even a ~on law s~d~d for expunction, a tfi~ ~u~ should r~uire more ext~ive evidence before it s~s drag offenses to ~low a ~on to pu~ue such a li~ns~ profe~ion, '18 Fla. L. :Weekly D13 Manley's claim. However, after' HERBERT G. STURM, Appellant, vs. CODE ENFORCEMENT BOARD and CITY OF SEBASTIAN, Appellee. / IN THE CIRCUIT COURT OF THE 19TH JUDICIAL CIRCUIT IN AND FOR INDIAN RIVER COUNTY, FLORIDA. APPELLATE DIVISION CIRCUIT CASE NO. 92-515-CA-25 ORDER ON APPELLANT'S THIRD MOTION FOR REHEARING THIS COURT HAVING reviewed Appellant's third motion* for rehearing, and this Court having reviewed the Court file, this Court finds: 1. That Appellant filed a second motion for rehearing on May 10, 1993 which was styled a motion to rehear the Court's order denying Appellant's motion to assess fees against Appellee. However, this motion to reconsider the Court's order denying Appellant its costs and fees was essentially a motion for rehear- ing of this Court's prior order dis'missing this appeal entered December 18, 1992, because this motion to reconsider denying Appellant fees and costs attempted to reargue the merits of the dismissal. 2. Thus, the motion to rehear the denial of the fees and costs was really a second motion to rehear the order of dismiss- al, since Appellant had previously filed a motion for rehearing on the order of dismissal on December 28, 1992. The order deny- ing Appellant fees and costs was based on the same grounds as the *filed on June 7, 1993 ~ order of dismissal, so to reargue the denial of costs was to reargue the dismissal also. the fees and 3. The appeal was dismissed because Appellee's response filed on November 3, 1992 to the order to show cause why the appeal should not be dismissed stated the underlying violation had been corrected. That apparently was why Appellee rescinded the underlying order which was the order being appealed. 4. Based on the foregoing, since the order on appeal was rescinded, the appeal had become moot. 5. This Court relied on the response made by Appellee because Appellant's response filed November 24, 1992 to the order to show cause why appeal was not dismissed, did not dispute the response filed by Appellee earlier on November 3, 1992. 6. Further, Appellant's motion for rehearing filed December 28, 1992 did not dispute the response made by Appellee on Novem- ber 3, 1992. 7. Thus, based on the above papers filed in this case, Appellant's motion for rehearing on this Court's order denying fees and costs tO Appellant was a second "rehearing" argument, where Appellant raised for the first time the dispute on why the underlying order being appealed was rescinded. Appellant could have disputed the reason for the rescission of the order either in his November 24, 1992 response to the court's order to show cause, since by that time Appellant had received Appellee's response to the order to show cause filed on November 3, 1992. Alternatively, Appellant could have disputed the reason the order on appeal was rescinded in his first motion for rehearing filed on December 28, 1992. Appellant did neither, but waited to reargue the merits of the dismissal on these grounds in a motion for rehearing directed to the-denial of fees a~d costs to Appel- lant.. Again, since the order denying the fees and costs to Appellant was based on the same grounds as the order dismissing the appeal, Appellant cannot reargue the dismissal in this col- lateral manner. Successive motions for rehearing on a court's order are prohibited under Fla.R.App. P. 9.33~ (a). 8. Further this Court finds regarding Appellant's complaint that this Court did not require a response to Appellant's motions for rehearing from Appellee: a. that on all of Appellant's papers filed herein, Appel- lant has continually and consistently refused to serve notice of his motions on the attorney who is representing the Appellee. b. That Appellee cannot'timely respond to a motion filed by Appellant if Appellant does .not serve the Appellee's attorney with a copy of the motion. c. That on this Court's orders, this Court has repeatedly noted service of copies of the order on the attorney representing the Appellee, providing the name and address of the attorney, which informed the Appellant of the proper manner of service of documents filed herein. d. That on papers filed by Appellee, the attorney, Richard Torpy, has made his appearance as the attorney for Appellee. e. That Appellant through its motion for rehearing;clarifi- cation filed December 28, 1992 objected to who Appellee could use as an attorney, however this motion for rehearing is denied in its entirety. f. That, thus this Court waived its local rule that Appel- lee reply to a Motion for Rehearing where Appellant has continu- ally violated Fla. R.App. P. 9.420 (c) (1) by failing to serve copies of the motions filed herein on the attorney representing Appellee as shown by Appellant's certificates of service which consistently do not show service on Richard Torpy as attorney for Appellee (Richard Torpy, Esq. having made an appearance in this action as attorney for Appellee by documents filed herein); g. That, thus it being Appellant's continuing failure to comply with the Florida Rules of Appellate Procedure which thwart any response to Appellant's motions that would have been made by the attorney on behalf of Appellee, and this Court having the power under Fla.R.App. P. 9.410 to levy sanctions against any party, who violates the Florida Rules of Appellate Procedure, which Appellant has continually done, including reprimand, con- tempt, striking of briefs or pleadings, dismissal of proceedings, costs, attorney's fees or other sanctions, and as successive motions for rehearing are prohibited under Fla. R.App. P. 9. 330 (b), it is: ORDERED that the Appellant's ~otion for Rehearing and Clarification filed June 7, 1993 is DENIED. Pursuant to Fla.R.App. P. 9.33~ (b), no successive motions for rehearing will be considered. DONE AND ORDERED this ~~ day of in Fort Pierce, St. Lucie County, Florida. JOHN Copies furnished to: APPELLA~ ADMINISTRATIVE HERBERT STUR~, PRO SE RICHARD E. TORPY, ESQ. for Appellee 93S S. Harbor City Blvd. Suite 505 Melbourne, FL 32901 JUDGE 1993 HERBERT G. STURM, Appellant, JUN 2. 5 1995 IN THB CIRCUIT COURT OF THE 19TH JUDICIAL CIRCUIT IN AND FOR INDIAN RIVER COUNTY, FLORI DA. APPELLATE DIVISION CIRCUIT CASE NO. 92-515-CA-25 vs. CODE ENFORCEMENT BOARD & THE CITY OF SEBASTIAN, Appellee. ORDER DENYING THE MOTION TO CLARIFY RECORD BY THE COURT THIS COURT HAVING REVIEWED the Appellant's Motion to Clarify the Record filed in Case No. 92-0396-CA-25, and this Court noting that no such orders as referenced in Appellant's motion are to be found in Case No. 92-~396-CA-25, and this Court noting that in Case No. 92-515-CA-25 such orders are in existence, thus this Court presuming that Appellant is mistaken in his case number typed on his motion, it is ORDERED that Appellant's motion is DENIED. Appellant may obtain copies of the court file from the Clerk upon paying the Clerk's fees for making copies for Appellant, just as any other party does if a party needs copies of the court file to determine what is in the court file. Further, this Court notes that Appel- lant has been served with all copies of papers filed in. this case, and thus, Appellant should have copies of these papers in his Further, "response" possession, and so can make his own listing of to clarify Appellant's confusion, this in a plural sense in accordance with the record Court uses Webster' s dic- tionary. (E.G., compare what the dictionary notes is the of "reply" as opposed to "response".) plural FURTHER ORDERED that if Appellant files any further motions with this Court which this Court considers frivolous or unduly argumentative, impugning on the integrity of this Court, then this Court may consider issuing an Order to Show Cause why the Appellant should not be held in contempt of court, as Appellant seems to be showing disrespect for the Court by the filing of Appellant's plethora of motions. Respect for the Court includes recognition of the finality of this Court's orders-and the integ- rity of this Court in the issuance of its orders. This Court notes the definition of contempt from Fla. Jut 2d as follows: Generally, any act which is calculated to embarrass, hinder or obstruct the court in the administration of justice, or which is calculated to lessen its authority or its dignity, is a con- tempt. Thus, statements made by ~ party to litigation which ,ar? such as to impugn the integrity of the judicial ro~ and wnicn are not made ~6r~-~n'{ to any a~-~i~-~it 6'f disqualification or other process requiring the making of the statements, are not privileged, and constitute contempt of court. The test as to whether an act actually constitutes contempt is not the physical propiniquity [i.~., "proximity"] of the act to th---~ court, but is the tendency of the act to directly affect the administration of justice, or to embarrass or degrade the judge in the performance of his duty. 11 Fla. Jut. 2d Contempt Section 14 (1979). As to particular forms of contempt, Fla. Jut. 2d states: Contempt may be committed by the filing of briefs, ings, affidavits, or other written documents containing tuous matter. Thus the . . making of statements charging the court with improper motives in rendering a line decisions may constitute contempt. 11 Fla. Jur. 2d Contempt Section 24. plead- contemp- therein of AS to the punishment for contempt: Depending on the circumstances of the case, an individual may be fined and imprisoned. . . A civil contempt may be punished by imprisonment as well as by a fine. 11 Fla. Jur 2d Contempt Section 45. Appellant has now been put on notice as to what constitutes contempt of court. This Court realizes that Appellant.is not an attorney and continues to be unrepresented by an attorney. Thus, this Court recognizes that Appellant is not well versed in the law, and may be committing errors out of ignorance of the law. ~owever, Appellant is now on notice that Appellant is to refrain from conduct which can be considered contempt of this court, and Appellant is advised.to be governed accordingly. Appellant may also wish to seek the advice of an attorney ~n future legal proceedings. DONE AND ORDERED this ~ Pierce, St. Lucie County, Florida. Copies furnished to: Herbert Sturm, Pro Se Richard Torpy, Esq. for Appellee 930 S. Harbor City Blvd., Suite 505 Melbourne, FL 32901 day of June, 1993 in Fort JUDGE JL N 1993 HERBERT G. STURM, Appellant, vs. CODE ENFORCEMENT BOARD and CITY OF SEBASTIAN, Appellee. iN THE CIRCUIT COURT OF THE 19TH JUDICIAL CIRCUIT IN AND FOR INDIAN RIVER COUNTY, FLORIDA. APPELLATE DIVISION CIRCUIT CASE NO. 92-515-CA-25 ORDER DENYING APPELLANT'S MOTION FOR DISQUALIFICATION OF JUDGE THIS COURT HAVING reviewed Appellant's motion for disquali- fication of Judge and noting it is legally insufficient, it is: ORDERED Judge is DENIED. DOEE AND ORDERED this /] ~ day of ~ , in Fort Pierce, St. Lucie County~ F~orida. APPELLATE ADMINISTRATIVEI JUDGE Copies furnished to: HE~ERT STU~, PRO SE that the Appellant's Motion for Disqualification of 1993 RICHARD E. TORPY, ESQ. for Appellee 930 S. Harbor City Blvd. Suite 505 Melbourne, FL 32901 HERBERT G. STURM, Appellant, vs. CODE ENFORCEMENT BOARD and CITY OF SEBASTIAN, Appellee. IN THE CIRCUIT COURT OF THE 19TH JUDICIAL CIRCUIT IN AND FOR INDIAN RIVER COUNTY, FLORIDA. APPELLATE DIVISION CIRCUIT CASE NO. 92-515-CA-25 ORDER ON APPELLANT'S SECOND MOTION FOR REHEARING O__~F ORDER DISMISSING APPEAL AS MOOT THIS COURT HAVING reviewed Appellant's second motion for rehearing of its order dismissing this appeal as moot, and this Court having reviewed the Court file and noting that in that document entitled "Appellee's Response to Order to Show Cause Why Case Should Not Be Dismissed", paragraph 2 reads that the under- lying order was rescinded "due to a correction of the underlying violation subsequent to issuance of the order", and this Court further noting that nowhere in Appellant's own p%.eadings, mo- tions, and responses did Appellant ever dispute this statement and as re- dis- dis- rehearing/clarification made in ~ two of that document filed b__y ~, thus the statement being unrebutted, the appeal was dismissed moot. This Court notes Appellant had ample opportunity to spend to the Order to Show Cause why appeal should not be missed as moot ri~ t~ this Court's entering the order of missal and has filed a prior motion for on this order of dismissal, therefore I I I i I I I I I I I i i I i I I ORDERED that Appellant,s second motion for rehearing/clari- fication is DENIED. FURTHER ORDERED that since the appellate rules do not permit successive motions for rehearing ad infinitum, this Court will no__t entertain any future successive motions for rehearing or clarification from appellant in this matter. See Fla. R.App.P. 9.330 (b). Appellant had his opportunity to respond to the Order to Show Cause and had a prior motion for rehearing filed and ruled on. Appellant cannot constantly relitigate issues decided by this Court, neither does Appellant have infinite opportunities to re-hash or re-motion issues decided by this Court. It is up to Appellant to present his case ~ on the first opportu- nity to do so, and successive rehearings on a particular issue are limited by the appellate rules of procedure to one rehearing only. Fla.R.App. P. 9.330 (b). If Appellant is going to represent himself pro se, without an attorney, then it is incumbent on Appellant to familiarize himself with the rules of procedure he is operating under in any particular legal matter. This Court cannot be Appellant's lawyer. This appeal remains DISMISSED. DONE AND ORDERED this day of ~ , 1993 in Fort Pierce, St. ~ucie County, ~~.~a~ JOHN APPELLATE ADMINISTRATIVE JUDGE Circuit Court Copies furnished to: HERBERT STURM, PRO SE RICHARD E. TORPY, ESQ. for Appellee 93~ S. Harbor City Blvd. Suite 5~5 Melbourne, FL 32901 0 5 ' 993 IN THE CIRCUIT COURT OF THE 19TH JUDICIAL CIRCUIT IN AND ' FOR INDIAN RIVER COUNTY, FLORIDA. APPELLATE DIVISION CIRCUIT CASE NO. 92-0515-CA-25 HERBERT G. STURM, Appellant, CODE ENFORCEMENT BOARD and CITY OF SEBASTIAN, Appellee. / ORDER DENYING MOTION TO ASSESS FEES AGAINST APPELLEE THIS COURT HAVING reviewed the Court file and noting that the underlying Code Enforcement Board order on appeal was re- scinded by Appellee due to Appellant's correction of the viola- tion that which precipitated the order, and Appellant not disputing the order was rescinded due to Appellant's correction of a violation, then it is ORDERED that Appellant's Motion to assess fees and against Appellee is DENIED. DONE AND ORDERED this ~0 day of in Fort Pierce, St. Lucie County, Florida. Copies furnished to: HBRBERT STURM, PRO SE CODE ENFORCEMENT BOARD, CITY OF SEBASTIAN RICHARD E. TORPY, ESQ. for Appellee 930 S. Harbor City Blvd. Suite 505 elbourne, FL 32901 costs 1993 I i i i I I i I i I i I I I I I I I IN THE CIRCUIT COURT OF THE 19TH JUDICIAL CIRCUIT, IN AND FOR iNDIAN RIVER COUNTY, FLORIDA. APPELLATE DIVISION HERBERT G. STURM, Appellant, CIRCUIT CASE NO. 92-0515-CA-25 L.T. NO. - APPEAL FROM CODE ENFORCEMENT BOARD, SEBASTIAN vso CODE ENFORCEMENT BOARD & CITY OF SEBASTIAN, Appellee. / ORDER ON APPELLANT'S MOTION FOR RECLARIFICATION/REHEARING ORDERED that Appellant's Motion for Reclarification Rehearing is DENIED. The appeal is dismissed because since underlying order appealed has been rescinded, then the appeal or the is now moot. DONE AND ORDERED this ~; of March, 1993 in Pierce, St. Lucie County, Florida. , ~ ~-. ! JOHN "o~FENNELLY ' / Admini~rative Appellate~Judge Copies furnished to / · Herbert Sturm, Pro Se Code ~nforcement Bd. ~ Cit~ of Sebastian Richard ~. Torp~, ESq. Fort ~ERB£RT G. STORM, ..... ~ppellant, v~. CODB ENFORCEMENT BOARD OF CITY OF SEBASTIAN, Appellee. IN THE CIRCUIT COURT OF THE NINBTEENTB JODICIAL CIRCUIT IN AND FOR INDIAN RIVER COUNTY, FLORIDA. APPELLATE DIVISION CIRCUIT CASE NO. 92-515-CA-25 Indian River County L'.T. NO. Appeal Crom Code Enforcement Board, Case No. 92-6909 SUA SPONTE ORDER DISMISSING APPEAL ORDERED, that a~ter reviewing the response to this Court's prior Orde~ to Show Cause Why Appeal Should NOt Be 'D~smissed because the underlying order being appealed wa~ rescinded by Appellee, this Court finds that this appeal should be dismissed. 1992 in Fort Pierce, St ~e County, ~o£ida. Admi~stra~ive Ap~lla[e Judge COPIES FURNIMI~D TO FOLLOWING ON 12/21/92: MERBERT G. STURM, 549 Saunders St., Sebastian, PL 32958; and CODE ~NFORCEM~NT BOAI~D, CITY OF SEBASTIAN, P. O- Box 780127, Sebas%ian, FL 32978 I i I I I I i I I I I I i I I I I I IN THE CIRCUIT COURT OF THE NINETEENTH JUDICIAL CIRCUIT IN AND. FOR INDIAN RIVER COUNTY, FLORIDA. APPELLATE DIVISION HERBERT G. STURM, CIRCUIT CASE NO. 92-515-CA-25 COUNTY: INDIAN RIVER L.T. NOS. APPEAL FROM CODE ENFORCEMENT BOARD CASE NOS. 92-6909 Appellant, vs. CODE ENFORCEMENT BOARD OF CITY OF SEBASTIAN, Appellee. ORDER ON APPELLANT'£ MOTION TO STRIKE ORDER DATED JULY 23, 1992 AND ORDER TO SHOW CAUSE WHY APPEAL SHOULD NOT BE DISMISSED ORDERED that Appellant's Motion to Strike Order Dated July 23, 1992, which rescinds the order being appealed by Appellant is DENIED. FURTHER ORDERED that the parties to the appeal shall file with this Court in writing no later than November 30, 1992 a statement to show cause, if any there be, why this appeal should not be dismissed, since the underlying order being appealed has been rescinded by Appellee..~ ~~~%ct day DONE AND ORDERED this ' · Pierce, St. Lucie County, Florida. of October, 1992 in Fort JOHN E. EENNELLY Administrative Appellate Judge I ttEREBY CERTIFY that a true and correc%/conformed copy of the foregoing order entered in Circuit Case No. 92-515-CA-25 filed in Indian River County was furnished by U.S. Mail to the addressees listed below: Herbert G. Sturm, Pro Se Appellant, 549 Saunders Street, Sebastian, FL 32958; Code Enforcement Board of Sebastian, P. O. Box 780127, Sebastian, FL 32978; and Richard E. Torpy, Esq., Attorney for Code Enforcement Board, 930 S. Harbor City Blvd., Suite 505, Melbourne, FL 32901 on this 21st day of October , 1992. Deborah A. Sawyer \ Trial Court Law Clerk & Staff3~ Attorney to the Appellate P ~n~/- ' 19th Judicial Circuit ~ IN THE MATTER OF: COD~ ~NFORCEM~NT BOARD CITY OF $~ASTIAN INDI;tN RIVER COUNTY, FLORIDA Mr. Herbert Sturm 549 Saunders Street Sebastian, FL 32958 CASE NO. 92-6909 LEGAL DESCRIPTION: Lot 4, Block 62, SEBASTIAN ~IGHLANDS #2, of the Public Records of Indian River County, Florida. ~ ~ ORDER DENYING N~W TRIbaL AND ARAR~~ ~ THIS CAUSE originally came to be heard after due Notice to the Respondent at a violation hearing conducted by the Code Enforcement Board of the City of Sebastian on July 15, 1992. The Board after having heard testi~,ony under oath, received evidence and heard. argument of counsel or respondent, if any, thereupon issued an Order dated July 23, 1992. ~ m~ade b.~ Upon Motion for new trial and~ y ~erbert G. Sturm; The Code Enforcement Board of the City of Sebastian conducted a Hearing on August 19, 1992. The Board after hearing testimony under oath and hearing argument of counsel or respondent, if any, thereupon issued an Order as follows; QRD~R Based upon the Board's determination, it is hereby ordered that= The motion for new trial an~C~se No. 92-6909 is denied. DONE AND ORDERED this ~ day of -~~ , 1992. ATTEST Secret~ry chairm~n Code Enforcement Board Nunc Pro Tune IN THE MATTER OF: CODE ENFORCEMENT BOARD CITY OF SEBASTIAN' INDIAN RIVER COUNTY, FLORIDA Mr. Herbert Sturm 549 Saunders Street Sebastian, FL 32958 LEGAL DESCRIPTION: CASE NOS. 92-6348 92-6345 92-6418 92-6436 Lot 4, Block 62, SEBASTIAN ~IGHLANDS ~2, of the Public Records of Indian River County, Florida. ORDER TO STAY ORDER THIS CAUSE originally cmme to be heard after due Notice to the Respondent at a violation hearing conducted by the Code Enforcement Board of the City of Sebastian on May 20, 1992. The Board after having heard testimony under oath, received evidence and heard argument of counsel or respondent, if any, thereupon issued an Order dat,d May 20, ~....~_'.,~ .... ~ ~ 1992 and amendments thereto. Upon Motion to stay the Enforcement of this order ~' until the Appellate Court decides this case The Cod. ,nforcem.nt Board of the City ;of Seba.tian~~ a Hearin9 on August 19, 1992. The Board after hearing testimony under oath and hearing argument of counsel or respondent, if any, thereupon issued an Order as follows; Based upon the Board's determination, it is hereby ordered that: The Order dated May 20, 199~asg. No~s~' ~2-634~, 92-6345, 92-6418 and 92-6436 is stayed p~ndlng the A~p'el~&%e Court's determlnation. DONE AND ORDERED this /G day of ~~~_ , 1992. ATTE ST: S6cretar~ ' ' ,SE'P 10 1992 CODE ENFORCEMENT BOARD CITY OF SEBASTIAN INDIAN RIVER COUNTY, FLORIDA IN THE MATTER OF: CASE NO. 92-6909 Mr. Herbert Sturm 549 Saunders Street Sebastian, FL 32958 LEGAL DESCRIPTION: L°t 4, Block 62, SEBASTIAN HIGHLANDS #2, of the Public Records of Indian River County, Florida. ORDER RESCINDING ORDER DATED JULY 23, 1992 THIS CAUSE originally came to be heard after due Notice to the Respondent at a violation hearing conducted by the Code Enforcement Board of the City of Sebastian on July 15, 1992. The Board after having heard testimony under oath, received evidence and heard argument of counsel or respondent, if any, thereupon issued an Order dated July 23, 1992. Upon Motion to rescind this Order dated September 1, 1992 made by the City and after notice to Herbert Gf Sturm; The Code Enforcement Board of the City of Sebastian conducted a Hearing on September 3, 1992. The Board after hearing testimony under oath and hearing argument of counsel or respondent, if any, thereupon issued an Order as follows; Based upon the Board's determination, it is hereby ordered that: The Order dated July 23, 1992, Case No. 92-6909 is rescinded. DONE AND ORDERED this ~/~ day of ~..~ .. , 1992. vice Chairman Code Enforcement Board Nunc Pro Tunc ATTEST: ~ec~ret~/ - I I I I I I I I I I I I I I The meeting was a success with the residents and the County's and the City's interest for safety. The county will consider a deceleration lane for westbound traffic at the Louisiana Avenue intersection. The county did agree to a deceleration lane being added to the Western intersection and to align that intersection with King Avenue. Traffic movements of this intersection would be studied to determine location of stop signs within the Orange Heights subdivision at Temple Avenue. None. RECOMMENDED ACTION This is for informational purposes only. City of Sebastian 1225 MAIN STREET [] SEBASTIAN, FLORIDA 32958 · TELEPHONE (407) 589-53301 [] FAX (407) 589-5570 SUBJECT. AGENDA NO.~ De t. Cfi in Personnel ~ STATUS OF CITY MANAGE, p .g ~__ RECRUITMENT Date Submitted 11/23/93 APP.ROVED FOR SUBMITTAL BY: For Age.nda Of 12/01/93 Actlng City ' / '/ I Exhibzts,' None Manager: 4;~'~, (~//'~ EXPEND I TURE AMOUNT APPROPRIAT I ON R UZRED: N/A BUDGETED: N/A UZRED: SUI~4ARY STATEMENT I The cut-off date for City Manage~ is December 10, 1993. At that time the applications w~11 be revLewed and those that are clearly not qualified will be eliminated from further consideration. At the current time, there are approximately 90 applicants. The Screening Committee will have an introductor~meeting, tentatively scheduled for Thursday, December 16th, to discuss the screening criteria and independently determine which resumes reflect the leadership skills and experience needed to help the City of Sebastian grow and prosper in an orderly manner. The Screening Committee will tentatively meet again on Tuesday, January 4th to discuss their choices and determine how many applicants they will interview. The Screening Committee will be given a copy of the job description and the job advertisement for City Manager. If the City Council wishes to provide more direction or guidance to the Committee, such as having grants writing experience or specific knowledge of federal and state agencies, those issues should be discussed now. RECOMMENDED ACTION Allow the Screening Committee the latitude to determine their own screening criteria and interviewing questions with staff assistance as requested.