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HomeMy WebLinkAbout09232009CouncilCVO HOME OF PELICAN ISLAND SEBASTIAN CITY COUNCIL AGENDA REGULAR MEETING WEDNESDAY, SEPTEMBER 23, 2009 6:30 P.M. CITY COUNCIL CHAMBERS 1225 MAIN STREET, SEBASTIAN, FLORIDA ALL AGENDA ITEMS MAY BE INSPECTED IN THE OFFICE OF THE CITY CLERK 1225 MAIN STREET, SEBASTIAN, FLORIDA OR ON THE CITY WEBSITE Procedures for Public Input are Attached to the Back of the Agenda 1. CALL TO ORDER 2. INVOCATION Rabbi Goldring Congregation Beth El 3. PLEDGE OF ALLEGIANCE 4. ROLL CALL 5. AGENDA MODIFICATIONS Modifications and additions require unanimous voted of City Council members 6. PROCLAMATIONS, AWARDS, BRIEF ANNOUNCEMENTS Presentations of proclamations, certificates and awards, and brief timely announcements by Council and Staff. No public input or action under this heading. 09.128 A. Presentation of Certificate of Appreciation to Frank Garland Former Construction Board Member 09.138 B. Presentation of Plaque Employee of the Second Quarter Barbara 1 Brooke -Reese MIS Senior Systems Analyst C. Brief Announcements 7. CONSENT AGENDA All items on the consent agenda are considered routine and will be enacted by one motion. There will be no separate discussion of consent agenda items unless a member City Council so requests; in which event, the item will be removed and acted upon separately. If a member of the public wishes to provide input on a consent agenda item, he/she should request a Council Member to remove the item for discussion prior to start of the meeting or by raising his/her hand to be recognized. 3 -13 A. Approval of Minutes 9/9/09 Regular Meeting 15-18 B. Approval of Minutes 9/14/09 Special Meeting 09.139 C. Approve Road Closure for Substance Awareness Council 5K Run Fundraiser 19 -22 Saturday, January 2, 2010 7:30 am to 9:30 am Indian River Drive from Harrison Street North to Jackson Street (Parks Transmittal, Application, Info) 09.140 D. Approve Road Closure for Sebastian River Middle School IB Program 5K Run 23 -28 Fundraiser Saturday, November 14, 2009 6:45 am to 9:30 am Indian River Drive from Harrison Street North to Jackson Street (Parks Transmittal, Application, SRMS Letter) 8. COMMITTEE REPORTS APPOINTMENTS City committee reports and Council Member regional committee reports. No public input or action except for City committee member nominations and appointments under this heading. 09.141 A. Police Pension Board of Trustees 29 -58 i. Appoint Two Resident Positions for Two Year Terms (City Clerk Transmittal, FS 185.05, 5 Applications, Board List, Press Release) 9. PUBLIC HEARINGS Procedures for public hearings: Mayor opens hearing Attorney reads ordinance or resolution Staff presentation Public Input Staff summation Mayor closes hearing Council action Anyone wishing to speak is asked to sign up before the meeting, when called, go to the podium and state his/her name for the record. 09.129 A. Second Reading and Final Adoption of Ordinance 0 -09 -12 Noise (City Attorney 59 -64 Transmittal, Memo, 0- 09 -12) AN ORDINANCE OF THE CITY OF SEBASTIAN, INDIAN RIVER COUNTY, FLORIDA, REPEALING SECTION 66 -3 (4) AND ENACTING CHAPTER 67; OF THE CODE OF ORDINANCES OF THE CITY OF SEBASTIAN, FLORIDA, RELATING TO UNNECESSARY AND EXCESSIVE NOISE; PROVIDING ENFORCEMENT PROCEDURES AND EXEMPTIONS; REPEALING CONFLICTING PROVISIONS; PROVIDING FOR SEVERABILITY AND AN EFFECTIVE DATE. 10. UNFINISHED BUSINESS 11. PUBLIC INPUT 12. NEW BUSINESS 09.015 A. George Street Ditch Rehabilitation Project (City Manager Transmittal, 65-105 Agreement, Recommendation) 09.142 B. NationAir Insurance Group Airport Lease Agreement (Airport Transmittal, 107 -128 Lease, Schedules) 13. CITY ATTORNEY MATTERS 14. CITY MANAGER MATTERS 09.143 A. KB Homes Settlement Update (City Manager Transmittal, Minutes, Previous 129 -136 Transmittal, Offers) 09.144 B. Furlough Day Report (City Manager Transmittal) 137 15. CITY CLERK MATTERS 2 16. CITY COUNCIL MATTERS A. Mayor Gillmor B. Vice Mayor Hill C. Council Member Coy D. Council Member Simchick E. Council Member Wolff 17. ADJOURN (All meetings shall adjourn at 10:00 p.m. unless extended for up to one half hour by a majority vote of City Council) HEARING ASSISTANCE HEADPHONES ARE AVAILABLE IN THE COUNCIL CHAMBERS FOR ALL GOVERNMENT MEETINGS. All City Council Meetings are Aired Live on Comcast Channel 25. ANY PERSON WHO DECIDES TO APPEAL ANY DECISION MADE WITH RESPECT TO ANY MATTER CONSIDERED AT THIS MEETING WILL NEED A RECORD OF THE PROCEEDINGS AND MAY NEED TO ENSURE THAT A VERBATIM RECORD OF THE PROCEEDINGS IS MADE, WHICH RECORD INCLUDES THE TESTIMONY AND EVIDENSE UPON WHICH THE APPEAL IS TO BE HEARS. (F. S.286.0105) IN COMPLIANCE WITH THE AMERICAN WITH DISABILITIES ACT (ADA), ANYONE WHO NEEDS A SPECIAL ACCOMODATION FOR THIS MEETING SHOULD CONTACT THE CITY'S ADA COORDINATOR AT 589 -5330 AT LEAST 48 HOURS IN ADVANCE OF THIS MEETING. Upcoming meetings: Regular Meeting October 14, 2009 6:30 pm Regular Meeting October 28, 2009 6:30 pm Special Meeting November 9, 2009 Election Matters 6 pm Regular Meeting November 18, 2009 6:30 pm Regular Meeting December 9, 2009 6:30 pm Regular Meeting December 16, 2009 6:30 pm 3 PROCEDURES FOR PUBLIC INPUT IN ACCORDANCE WITH RESOLUTION R -09 -05 Regular City Council Meetings Public input is ALLOWED under the headings: Consent Agenda Public Hearings Unfinished Business New Business Public Input Public input is NOT ALLOWED under the headings: Proclamations, Awards, Brief Announcements (except for individuals giving or accepting proclamations or awards); Committee Reports and Appointments (except for committee members giving reports and applicants being interviewed for committee appointments); City Council Matters Charter Officer Matters Council may, by majority vote, call upon an individual to provide input if desired. Workshops and Special Meetings. Public input is limited to the item on the agenda Time Limit Input on agenda items where public input is permitted on agendas is FIVE MINUTES, however, City Council may extend or terminate an individual's time by majority vote of Council members present. Input Directed to Chair Speakers shall address the City Council IMMEDIATELY PRIOR TO CITY COUNCIL DELIBERATION of the agenda item and ALL INPUT SHALL BE DIRECTED TO THE CHAIR, unless answering a question of a member of City Council or City staff. Individuals shall not address City Council after commencement of City Council deliberation on an agenda item after public input has concluded, provided, however, the Mayor and members of City Council may recall an individual to provide additional information or to answer questions. Certain Remarks Prohibited Personal, impertinent, and slanderous remarks, political campaigning and applauding are not permitted and may result in expulsion from the meeting. The Chair shall make determinations on such remarks, subject to the repeal provisions below. Chair to Control Meeting In controlling the meeting during public input, the Chair will take the following actions: First Offense verbal warning to move on. Second Offense offender is directed to be seated. Third Offense (refusal to be seated or other disruptive acts offender will be asked to leave the premises) Appealing Decisions of Chair Any member of Council may appeal the decision of the Chair to the entire Council. A majority vote of City Council shall overrule any decision of the Chair. Public Input Heading on Agenda The heading on Regular Meeting agendas "Public Input" provides an opportunity for individuals to bring NEW INFORMATION OR REQUESTS TO CITY COUNCIL NOT OTHERWISE ON THE PREPARED AGENDA. Individuals are asked to attempt to resolve matters with staff prior to meetings. Individuals are asked to provide copies of material for Council one week prior to the meeting if they intend to refer to specific material. City Council will not debate an issue during Public Input but may by consensus direct a Charter Officer in regard to the item if necessary or place a requested item on a future agenda. 4 CIIYOF HOME OF PELICAN ISLAND 1225 MAIN STREET SEBASTIAN, FLORIDA 32958 TELEPHONE: (772) 589 -5330 FAX (772) 589 -5570 EMPLOYEE OF THE 2 QUARTER 2009 BARBARA BROOKE REESE SENIOR SYSTEMS ANALYST MANAGEMENT INFORMATION SYSTEMS Barbara began her employment with the City of Sebastian in November of 2002 as the MIS Specialist and in May of 2004 was promoted to Systems Analyst in the MIS Department. Over the years she has demonstrated dedication and loyalty and coupled with her extensive knowledge has been instrumental in our ever expanding City network. Her notable accomplishments began in 2004, with the move to our New City Hall and expansion of the Police Department, along with the installation of the phone system and broadcasting room, the implementation of the PD mobile laptops, firewall and Laserfische and Laserfische Web -Link installation and maintenance, and has grown to include Channel 25, assistance in the design of the advertising billboards recently installed on I -95, the city hall, police department, golf course and airport websites, golf course point of sale operations and all copy machine and phone system upgrades. She has also assisted with setting up early voting systems and candidate forums, and continues with Student Government Day, County -wide ISBA meetings and was instrumental in the success of the recent Indian River Economic Development Summit conducted in our Chambers. Barbara, along with the MIS staff keep technology throughout the City running smoothly, to include computers, phones, dispatch, videography, photography and city security systems, quite a task for a three person operation. Her love and proficiency with technology and dedication to the City of Sebastian has earned her the Employee of the Quarter. She is always available to assist whether it is after -hours or on weekends. Barbara has always been quick to respond and help in a friendly manner. Therefore Barbara, it is with great pleasure that I present this plaque and savings bond in recognition of your achievements and dedication to the City of Sebastian. 0. City Council Present: Mayor Richard H. Gillmor Vice -Mayor Jim Hill Council Member Andrea Coy Council Member Dale Simchick Council Member Eugene Wolff Staff Present: City Manager, Al Minner City Attorney, Robert Ginsburg City Clerk, Sally Maio Deputy City Clerk, Jeanette Williams Records Program Manager, Donna Cyr Airport Director, Joseph Griffin Finance Director, Ken Killgore Police Captain, Greg Witt Police Captain, Bob Lockhart MIS Systems Analyst, Rob Messersmith CITY OF HOME OF PELICAN ISLAND SEBASTIAN CITY COUNCIL MINUTES REGULAR MEETING WEDNESDAY, SEPTEMBER 9, 2009 6:30 P.M. CITY COUNCIL CHAMBERS 1225 MAIN STREET, SEBASTIAN, FLORIDA 1. The Mayor called the regular meeting to order at 6:30 p.m. 2. Rev. Ellie Lea, First Presbyterian Church of Sebastian gave the invocation. 3. The Pledge of Allegiance was recited. 4. ROLL CALL 5. AGENDA MODIFICATIONS Modifications and additions require unanimous voted of City Council members Ms. Coy asked that New Business Item 12F be added regarding the installation of high speed internet at the Airport building. There was a unanimous voice vote to add the item. 6. PROCLAMATIONS, AWARDS, BRIEF ANNOUNCEMENTS Presentations of proclamations, certificates and awards, and brief timely announcements by Council and Staff. No public input or action under this heading. Regular City Council Meeting September 9, 2009 Page Two Brief Announcements None. 9. PUBLIC HEARINGS None 10. UNFINISHED BUSINESS None 11. PUBLIC INPUT None Mayor Gilimor announced that a Patriot's Day memorial will be held at Riverview Park this Friday at 8:30 a.m. and encouraged the public to participate. Mayor Gilimor also announced POW /MIA Day will be held in Vero Beach with a candlelight vigil on September 18 on Memorial Island. Ms. Simchick invited the community to the Sebastian Soccer Association's Event celebrating new fields on Saturday, September 12 from 9:00 a.m. to 5:00 p.m. Ms. Coy invited the public to a POW /MIA ceremony at the local Veteran's clubhouse on September 18 at 4:30 p.m. 7. CONSENT AGENDA All items on the consent agenda are considered routine and will be enacted by one motion. There will be no separate discussion of consent agenda items unless a member City Council so requests; in which event, the item will be removed and acted upon separately. If a member of the public wishes to provide input on a consent agenda item, he /she should request a Council Member to remove the item for discussion prior to start of the meeting or by raising his/her hand to be recognized. 1 -7 A. Approval of Minutes 8/24/09 Budget Workshop 9 -18 B. Approval of Minutes 8/26/09 Regular Meeting 09.133 C. Christmas Parade December 5, 2009 Approve Street Boat Ramp Parking Lot 19 and Street Closings (City Clerk Transmittal) MOTION by Ms. Coy and SECOND by Ms. Simchick to approve consent agenda items A -C passed with a voice vote of 5 -0. 8. COMMITTEE REPORTS APPOINTME City committee reports and Council Member regional committee reports. No public input or action except for City committee member nominations and appointments under this heading. Regular City Council Meeting September 9, 2009 Page Three 12. NEW BUSINESS 09.118 A. Resolution No. R -09 -33 Calling Special Election November 3, 2009 for 21 -24 Referendum on Tax Abatement (City Manager Transmittal, R- 09 -33) A RESOLUTION OF THE CITY OF SEBASTIAN, INDIAN RIVER COUNTY, FLORIDA, CALLING FOR A REFERENDUM TO BE HELD IN CONJUNCTION WITH THE GENERAL ELECTION OF NOVEMBER 3, 2009 ON THE QUESTION OF WHETHER THE CITY OF SEBASTIAN MAY GRANT ECONOMIC DEVELOPMENT AD VALOREM TAX EXEMPTIONS PURSUANT TO THE STATE CONSTITUTION; AUTHORIZING THE CITY CLERK TO INCLUDE THE QUESTION ON THE BALLOT; PROVIDNG AN EFFECTIVE DATE; PROVIDING FOR THE REPEAL OF RESOLUTIONS IN CONFLICT HEREWITH; AND PROVIDING FOR ADOPTION. The City Attorney read the title of Resolution No. R- 09 -33. MOTION by Ms. Coy and SECOND by Mr. Hill to approve Resolution No. R- 09 -33. There was no public input. Ms. Coy said the ballot language was very well written and asked the public to consider how important this is as it will be the first tax abatement question to the electorate in Indian River County. The City Attorney said the ballot language came straight from the statute and if approved, Council will consider an ordinance to set application, amount, and duration of the tax benefit. Mr. Hill said the question is clear but asked if the language could say, "Shall the City be authorized to grant pursuant to article three, section seven property tax exemptions to new businesses which bring jobs to the City or expansion of businesses which create jobs." He said if the citizens were able to see the creation of jobs they would be more apt to vote favorably for the question. The City Attorney said the question comes from state statute which dictates "the question shall be substantially in the following form" which does provide leeway; but he advised that if the statutory language is used there would not be any difficulty with a legal challenge; but if Council departs from it there is always that possibility. Mr. Hill said the change is minor and very relevant. He said if the City Attorney could rewrite the language indicating clear delivery of jobs and could sustain a challenge he would move to make that adjustment. Mayor Gillmor asked the City Attorney if the City would be able to adequately inform the public of the intent of the referendum without the wording. The City Attorney said yes and mentioned the new law that prohibits encouraging the public to approve the question but stated factual information could be provided. Ms. Simchick asked if simply adding "that create jobs" would be challenged. Regular City Council Meeting September 9, 2009 Page Four The City Attorney said any time you change the exact wording in a statute you run the risk of a potential challenge. Mr. Wolff gave the example that if a business is expanding, paying more taxes, but not providing new jobs, he asked would they not qualify if that stipulation is included. Mr. Hill said the adopted economic development plan requires the creation of new jobs. Ms. Coy pointed out the ordinance could contain more specific language. 6:46 pm Ms. Simchick requested the City Attorney to expand on his caution. The City Attorney said the referendum language would be upheld but the ordinance would not allow an abatement to be given to a company that wants to expand. Mayor Gillmor offered to make a secondary motion. Ms. Coy said she would like to retract her motion. The City Attorney read the amended language: "Shall the City of Sebastian be authorized to grant, pursuant to S. 3, Art. VII of the State Constitution, property tax exemptions to new businesses that create jobs and expansions of existing businesses that create new jobs." Ms. Coy and Mr. Hill agreed to amend their original motion to approve R -09 -33 with the referendum language as follows: "Shall the City Council of the City of Sebastian be authorized to grant, pursuant to S. 3, Art. VII of the State Constitution, property tax exemptions to new businesses that create jobs and expansion of existing businesses that create new jobs" Result of the Roll Call: Ayes: All Nays: None 5 -0 09.134 B. First Reading of Ordinance No. 0 -09 -13 Local Vendor Preference Set Public 25-44 Hearing (City Manager Transmittal 9/3/09, 0- 09 -13, Melbourne's Ordinance, IRC's Ordinance) AN ORDINANCE OF THE CITY OF SEBASTIAN, FLORIDA, RELATING TO PURCHASING, AMENDING SECTION 2 -11 OF THE CODE OF ORDINANCES, ENTITLED LOCAL VENDOR PREFERENCE, WHICH PROVIDES FOR A LOCAL VENDOR PREFERENCE POLICY; PROVIDING FOR REPEAL OF ORDINANCES OR PARTS OF ORDINANCE IN CONFLICT HEREWITH, PROVIDING FOR SEVERABILITY; AND PROVIDING FOR AN EFFECTIVE DATE. The City Attorney read the title of Ordinance No. 0- 09 -13. Mayor Gillmor thanked the City Manager's office for their work on the ordinance and noted that the City has not been viewed as business friendly; and there are a lot of regional businesses that hire Regular City Council Meeting September 9, 2009 Page Five local folks. He suggested switching out the wording local "county" to local "region," amending section A and B by adding Brevard, Osceola, St. Lucie, Okeechobee and Martin counties; increasing the lowest bid percentage to 5 and adding a section H that would say, "Any dispute shall be presented to the City Manager for resolution and his decision would be binding for all parties." Ms. Simchick said she would have preferred to see all of the Mayor's changes in writing prior to the meeting for her and her constituents to review. The City Attorney explained the ordinance draws some lines, people on one side get a benefit and people on the other side don't; any time you do that you are creating the possibility of a dispute as to who qualifies and who doesn't which can get fairly heated. He said as an example the City takes the position as to who receives the benefit or another bidder takes the position as to who qualifies. He noted these disputes can hold the City up in the court system and his thought was to put a sentence in that "Any dispute that arises would be presented to the City Manager and his decision would be final and binding to all parties." Mayor Gillmor said local City guys would get the first shot at matching the local bidder, the ordinance preserves the lowest cost for jobs in the City, and sends a clear message of support for the City businesses. MOTION by Mayor Gillmor to approve the ordinance with the following changes on first reading: Switching out the wording local county to local region Amending section A and B by adding Brevard, Osceola, St. Lucie, Okeechobee and Martin counties Increasing the lowest bid percentage to 5% Adding a section H that would say, "Any dispute shall be presented to the City Manager for resolution with appeal to the City Council" Ms. Simchick said to move forward with a motion, with something that is not in writing, is unfair to her and her constituents, noting the definition of "region" is important. Mayor Gillmor pointed out that it was the first reading and it can be reviewed and changed by the second reading. Ms. Simchick asked the City Attorney if there was something written up that she could read during a recess. In response, the City Attorney said the three changes are: Expand the region to the whole Treasure Coast and Brevard -The benefits would be 5% for both the City businesses and region businesses -The addition of the sentence regarding the City Manager would resolve disputes Don Wright, 720 N. Fischer Circle, Sebastian, said expanding the resolution to a regional basis is important as some counties' resolutions have retaliatory language that would prohibit Sebastian businesses from competing. He asked what establishes a company doing business, citing an example of a new business with a phone and answering machine in a room. Regular City Council Meeting September 9, 2009 Page Six 7:13 pm Al Paternoster said he applauded Ms. Simchick's comments regarding the changes proposed by the Mayor. He asked the City Attorney if the applicants would understand that the City Manager would have the ultimate authority circumventing the court system. Mr. Hill called for a point of order and asked Mr. Paternoster to address the Chair. Mayor Gillmor asked the City Attorney to respond. The City Attorney said that is the intent and in other jurisdictions they have boards, the City Manager, or the court. Mr. Paternoster suggested forming an odd numbered committee to prevent the impression that the City Manager's decision was slanted. Damien Gilliams, 1623 US Highway 1, said this is bad for the tax payers, if he was a contractor he would not waste his time submitting a bid to the City because the locals have an advantage. He said a board is needed for discrepancies. Mr. Wolff said some good points have been bought up, he was not aware of the retaliatory language in other counties; he would prefer the inclusion of the bordering counties. Mayor Gillmor said the reciprocity in St. Lucie County gives local preference to all counties adjoining them as long as we give the same to them. In response to Mr. Wolff, Mayor Gillmor said he chose 5% (of lowest bid) to mirror the County's ordinance, and he noted all counties now have local preference ordinances so other counties are considering bordering companies. Mr. Wolff said the determination of bona fide businesses should be addressed. Mayor Gillmor noted section B, "A physical business address located within a region, in an area zoned for the conduct of such business, from which the vendor is operating a significant portion of its business, and at which maintains full time employees" would qualify. Mr. Wolff suggested the final determination should fall to the City Manager, with appeal to City Council as there will always be people who feel the cards are stacked against them. MOTION TO AMEND by Mr. Wolff and SECOND by Mr. Hill to delete the language that City Manager's decision shall be final and binding to all parties and in place of that the decision of the City Manager shall be appealed to the City Council. Ms. Simchick clarified that she is in favor of local business preference but to change the practice of how the City awards millions of dollars without having time to research the proposed changes is unfair to her constituents and she would not be supporting this reading. Regular City Council Meeting September 9, 2009 Page Seven Result of the roll call on the amendment: Ayes: Coy, Wolff, Gillmor, Hill Nays: Simchick 4 -1 Ms. Coy said she supported all of the Mayor's changes. The City Attorney suggested holding the public hearing on October 14 2009. Result of the roll call on the main motion: Ayes: Wolff, Gillmor, Hill, Coy Nays: Simchick 4 -1 09.135 C. Resolution No. R -09 -31 Florida Recreation Development Assistance Program 45-103 Grant (City Manager Transmittal, R- 09 -31, Application) A RESOLUTION OF THE CITY OF SEBASTIAN, INDIAN RIVER COUNTY, FLORIDA AUTHORIZING THE CITY MANAGER AND OR HIS DESIGNEE TO APPLY FOR FUNDING FROM THE FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION'S FLORIDA RECREATION DEVELOPMENT ASSISTANCE PROGRAM, PROVIDING FOR CONFLICT; PROVIDING FOR EFFECTIVE DATE. The City Manager explained this is a resolution in support of the City's application to the Florida Recreation Development Assistance Program (FRDAP) for a grant for the splash pad canopy. He noted that if awarded, the City can spend the canopy's allotted Capital Improvement Program (CIP) monies somewhere else. MOTION by Mr. Hill and SECOND by Ms. Coy to approve the grant application for the splash pad canopy. Don Wright, Chair of the Parks and Recreation Committee, said the committee discussed application for this grant as well as application for a grant to improve the CAVCORP property and he asked what happened to the CAVCORP grant. The City Manager explained that $750,000.00 was set aside in the CIP for both projects but it has not been discussed at the CRA level and he was concerned that application would lock Council into both improvements; but he offered that if Council wanted to commit to both projects, the resolution could be amended and about $400,000 would still be needed from the CRA to complete the projects. He also offered to apply for the CAVCORP improvements in the next FRDAP grant cycle. Joe Scozzari, Sebastian, said the City Manager has the authority to spend up to $15,000 and waive annexation fees and he asked why he must come to Council to apply for a grant. Mr. Hill said the fee waiving was approved by Council. He asked the Mayor to ask the City Manager to explain why. Regular City Council Meeting September 9, 2009 Page Eight The City Manager said every grant encumbers public funds and the granting jurisdictions require a backing of support through resolutions of the governing body that the local jurisdiction is going to spend the money in the appropriate way and live up to the regulations of the grant. Damien Gilliams, 1623 US Highway 1, said the City needs more property on the riverfront while the market is right and suggested taking care of the two projects later. Result of the roll call: Ayes: All Nays: None 5 -0 09.136 D. Resolution No. R -09 -32 Treasure Coast Council of Local Governments (City 105 -109 Clerk Transmittal, R- 09 -32) A JOINT RESOLUTION BY AND BETWEEN THE CITY OF FORT PIERCE, THE CITY OF PORT ST. LUCIE, THE CITY OF STUART, THE CITY OF FELLSMERE, THE CITY OF VERO BEACH, THE CITY OF SEBASTIAN, THE CITY OF OKEECHOBEE, THE TOWN OF SEWALL'S POINT, THE TOWN OF INDIAN RIVER SHORES, THE TOWN OF JUPITER ISLAND, THE TOWN OF ST. LUCIE VILLAGE, FLORIDA MUNICIPAL CORPORATIONS; INDIAN RIVER COUNTY, MARTIN COUNTY, OKEECHOBEE COUNTY AND ST. LUCIE COUNTY, POLITICAL SUBDIVISIONS OF THE STATE OF FLORIDA; THE SCHOOL DISTRICT OF INDIAN RIVER COUNTY, MARTIN COUNTY SCHOOL DISTRICT, OKEECHOBEE COUNTY SCHOOLS AND ST. LUCIE COUNTY SCHOOL BOARD, AMENDING RESOLUTION 03 -126; AMENDING THE ARTICLES OF INCORPORATION FOR THE TREASURE COAST COUNCIL OF LOCAL GOVERNMENTS, INC. The City Attorney read the title of Resolution No. R- 09 -32. The City Manager said the Treasure Coast Council has been in existence for three or four years and they are now requesting to include the School Board. MOTION by Mr. Hill and SECOND by Ms. Coy to approve Resolution No. R- 09 -32. Mr. Wolff said the focus of the School Board should be on the students and teachers instead of the administration, noting the members are absent in the students' and teachers' lives. He did not think their inclusion was necessary. Ms. Coy asked Mayor Gillmor for some background on the Council's request. 7:44 pm Mayor Gillmor, member of the Treasure Coast Council, explained the Council has been in existence since 2003 and they think the School Board's inclusion will give the Council the opportunity to tell the School Board the importance of educating kids so we might have a better workforce. Ms. Coy, member of the IRC Economic Development Committee, said there are representatives from the School Board, Indian River State College (IRSC), and the Workforce Development Board on her committee and she has noticed the School Board has enough on their plate right now including long term tax problems. She Regular City Council Meeting September 9, 2009 Page Nine suggested including representatives from IRSC and other training organizations on the Council as they would provide faster implementation training opportunities to improve the workforce. Result of the roll call: Ayes: Gillmor, Hill, Coy, Simchick Nays: Wolff 4 -1 09.137 E. Change November and December Regular Meeting Schedules As Recommended 111 to November 18, 2009, December 2 and 16, 2009 (City Clerk/City Manager Transmittal) MOTION by Mr. Hill and SECOND by Ms. Coy to approve staff recommendation. Ms. Coy said she has a commitment for December 2 "d and she asked if the December dates could be the 9 and the 16 There was a 5 -0 voice vote in favor of holding meetings on November 18 December 9th and 16 Added 12 F. Comcast High Speed Internet Service Ms. Coy said the City has lost their second possible tenant at the Airport Administration building because there is no high speed internet access. She said Mr. Griffin has been trying to get Comcast to provide affordable service, they have made offers that have changed at the last minute, and they haven't been friendly to the City of Sebastian. She asked Council to authorize the City Manager to fund the expenditure of $19,000 to save the tenant and provide a service that should be at the Airport. The City Manager explained there was a franchise agreement requiring certain community services but it has expired and there is an argument that Comcast didn't live up to their end of the agreement. He said Mr. Griffin has been working for two and half years for services but Comcast wants to charge the City an $18,000 construction fee for installation. He said in his opinion the Airport Director should continue to fight but since we are losing possible tenants, we should purchase the service which could be funded by some outstanding FAA grant monies. Mr. Hill said the adopted economic development plan provides the authorization for implementing the high speed internet. Ms. Simchick said the CDBG Entitlement Section 108 loan is a perfect way to pay for this along with water hook -up to the Airport. Ms. Coy said she would like to just authorize the City Manager to get it done to save the tenant. MOTION by Ms. Coy to authorize the City Manager to take money from the Airport fund. Regular City Council Meeting September 9, 2009 Page Ten Mr. Wolff asked what is the difference between the DSL available from BellSouth and high speed internet from Comcast. The Airport Director said the high speed internet would give more upload capabilities than download capabilities and the interested company has a need to upload insurance documents. Mr. Wolff asked if the T -1 line is still in existence and it's cost. The Airport Director said it is still in existence and the annual cost is $12,000. Mr. Wolff asked if the T -1 line can be used for the tenants. The Airport Director said the company's line must be kept sterilized from the City system to keep the Finance and Police Department operations safe. Joe Scozzari reiterated the Comcast construction cost is $18,000 and he asked who was the other company the City was considering. Mayor Gillmor told Mr. Scozzari that was not the case and he asked the City Manager how long it would take to install the internet. The City Manager said he met with Comcast last week and they are reconfiguring the price. Mayor Gillmor said he didn't want to spend the money and have the company say they are going to lease elsewhere. Mr. Hill said others will be able to use the internet access. The City Manager offered to have the Airport Director call the company tomorrow and let them know there will be a lease agreement on the next agenda and then he will call Comcast to come out and install. Mr. Hill SECONDED the motion. Result of the roll call: Ayes: All Nays: None 5 -0 13. CITY ATTORNEY MATTERS none. 14. CITY MANAGER MATTERS none. 15. CITY CLERK MATTERS The City Clerk said the internet has been down due to a Laserfiche upgrade which was completed on Tuesday. She noted there will be two training webinars open to the public on September 17 at 10:00 a.m. and September 21 at 2:30 p.m. in the Council Chambers which will also be broadcast on Channel 25. Regular City Council Meeting September 9, 2009 Page Eleven Richard H. Gillmor, Mayor ATTEST: 16. CITY COUNCIL MATTERS A. Council Member Wolff B. Mayor Gillmor none. C. Vice Mayor Hill none. D. Council Member Coy none. E. Council Member Simchick none. 17. Being no further business, Mayor Gillmor adjourned the regular city council meeting at 8:11 p.m. Approved at the September 23, 2009 Regular City Council Meeting. Sally A. Maio, MMC City Clerk Mr. Wolff announced the Sebastian Jr. Women's Club will present Murderous Crossings Mystery Dinner Theater at the Eagles Nest Restaurant on September 12 tickets are $35.00 and more information can be received by calling 589 -7990. He also announced an expert panel discussion of Water, Weeds, and Wildlife at the North County Library on September 15 at 7:00 p.m. with free admission. 1 3. ROLL CALL City Council Present: Mayor Richard H. Gillmor Vice -Mayor Jim Hill Council Member Andrea Coy Council Member Dale Simchick Council Member Eugene Wolff 4. CITY MANAGER UPDATE HOME OF PELKAN ISLAND SEBASTIAN CITY COUNCIL MINUTES SPECIAL MEETING BUDGET HEARING MONDAY, SEPTEMBER 14, 2009 6:00 P.M. CITY COUNCIL CHAMBERS 1225 MAIN STREET, SEBASTIAN, FLORIDA 1. Mayor Gillmor called the Regular Meeting to order at 6:00 p.m. 2. The Pledge of Allegiance was recited. Staff Present: City Manager, Al Minner City Clerk, Sally Maio Administrative Services Director, Deb Krueger Airport Director, Joseph Griffin Building Director, Wayne Eseltine Finance Director, Ken Killgore Golf Course Director, Greg Gardner Growth Management Director, Rebecca Grohall Police Chief, Michelle Morris Public Works Director, Jerry Converse PW Administrative Supervisor, Linda Kinchen MIS Director, Frank Losardo MIS Systems Analyst, Robb Messersmith The City Manager announced the proposed millage of 3.3456 mills and stated it is 12.1% lower than the rolled back rate (3.8 mills). He then gave a Power Point presentation that was provided at the August 24, 2009 Budget Workshop (see attached). 09.056 5. 1 PUBLIC HEARING AND ADOPTION OF PROPOSED MILLAGE AND TENTATIVE FY 2009/2010 BUDGET A. Announcement of Proposed Millage Rate of 3.3456 Mills The City Manager had previously made the announcement prior to his presentation and announced at this time that the final hearing on the millage and budget would take place on September 23, 2009. Special City Council Meeting September 14, 2009 Page Two B. Mayor Opens Public Hearing on Proposed Millage and Tentative Budget The City Attorney read Resolution Nos. R -09 -34 and R -09 -35 by title only. Mayor Gillmor called for public input. Tom Collins, Captain Hirams, Sebastian, thanked Council, City Manager and Staff for a wonderful budget and keeping tight controls. Don Wright, 720 North Fischer Circle, Sebastian, said staff and Council had done a terrific job of keeping the millage the same, and recommended an incentive program whereby staff would be rewarded with bonuses for significant cost- saving methods. Joe Scozzari, Sebastian, disagreed with staff bonuses stating staff is supposed to do a good job. Damian Gilliams, 1623 US 1, Sebastian, suggested if employee salaries are being frozen, Council should take a cut, said other areas in the budget can be cut, disagreed with early buyouts and suggested layoffs, said we did not need an environmental planner, and said more cuts could have been made and Council could have reduced the millage. Being no other input, Mayor Gillmor closed the public hearing at 6:32 p.m. Ms. Coy asked how many years it has been since Council had a salary increase and said Council has not given itself raises. She thanked the department heads and City Manager for an outstanding job on the budget. D. Adopt RESOLUTION NO. R -09 -34 Proposed Millage Rate for Calendar Year 2009 Final Public Hearing and Final Adoption Scheduled for 9/23/09 (Finance Transmittal, R- 09 -34) A RESOLUTION OF THE CITY OF SEBASTIAN, INDIAN RIVER COUNTY, FLORIDA, ADOPTING A PROPOSED MILLAGE RATE OF 3.3456 MILLS FOR THE CALENDAR YEAR 2009; PROVIDING FOR CONFLICTS; AND PROVIDING FOR AN EFFECTIVE DATE. MOTION by Ms. Coy and SECOND by Mayor Gillmor to approve Resolution No. R -09- 34 to set the proposed millage at 3.3456 mills. In response to Ms. Simchick, the City Manager said the City's reserve amount is $5,534,856, and that the City's total monthly expenditure is approximately $900,000. Ms. Simchick said it has been a tough year for City employees, was pleased with the City Manager and all of the department heads, said it speaks to the City Manager's budgeting skills that we are only down $84,000, and expressed concern with furloughs and closing City Hall, putting for the idea of considering using $300,000 from reserves to offset this. 2 Special City Council Meeting September 14, 2009 Page Three In response to Mr. Wolff, the City Manager explained the furlough program, noting shutting down City Hall once per month was considered because staff was taking a hit, and to tack the furlough onto holidays might make it more palatable. He said only City Hall and Public Works employees will be furloughed, not the Police Department and Golf Course. He said other jurisdictions were considering furloughs, but was uncertain about Indian River County. Mr. Hill congratulated staff and the committee for the budget, said this is a difficult time and did not think we would be out of it soon, said he did not want to see a reduction in level of service and his first inclination would be to balance the budget though noted we had come from $400,000 down to deficit of only $84,000. He said he had spoken to many people who want Council to cut as much as possible, expressed concern for future years out to possibly 2015 and 2016 but said he would agree to the same millage using $84,000 from reserves. In response to Mayor Gillmor, the City Manager said he was considering one furlough day per month and may bring the process before Council at the next regular meeting. In response to Mr. Wolff as to how crucial was 12 days, the City Manager said it was not scientific but rather utilized to attain maximum budget relief, noted 12 was a big number in relation to other agencies, but in Sebastian's case was based on a large reduction in assessed values which was a big hit on the City's budget. He said an increase from 3.34 to 3.8 mills equates to approximately $1 M. Mayor Gillmor discussed the recommended incentive program, noting an employee had saved the City money, and the City Manager stated it was Steve DiTrapano who saved the City $45,000 on electrical costs. Mayor Gillmor said he would like to tap into that type of incentive program. Ms. Simchick noted that incentives are usually given in time off rather than additional money, so the employee sees the benefit but it costs the City no more. Result of Roll Call: Ayes: All Nays: None Passed 5 -0 E. Adopt RESOLUTION NO. R -09 -35 Fiscal Year 2000/2010 Tentative Budget Final Public Hearing and Final Adoption Scheduled for 9/23/09 (Finance Transmittal, R- 09-35) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEBASTIAN, INDIAN RIVER COUNTY, FLORIDA ADOPTING THE TENTATIVE BUDGET FOR THE FISCAL YEAR BEGINNING OCTOBER 1, 2009 AND ENDING SEPTEMBER 30, 2010; MAKING APPROPRIATIONS FOR THE PAYMENT OF OPERATING EXPENSES, CAPTIAL EXPENSES, AND FOR THE PRINCIPAL AND INTEREST PAYMENTS ON THE BOND AND OTHER INDEBTEDNESS OF THE CITY IN THE CITY'S GENERAL FUND, SPECIAL REVENUE FUNDS, DEBT SERVICE FUND, CAPITAL IMPROVEMENT FUNDS, GOLF COURSE FUND, AIRPORT FUND, AND BUILDING DEPARTMENT FUND AS PROVIDED FOR IN SCHEDULE "A ATTACHED HERETO, ESTABLISHING AUTHORITY OF THE CITY MANAGER TO IMPLEMENT THE BUDGET; PROVIDING FOR SEVERABILITY; PROVIDING FOR CONFLICTS; AND PROVIDING FOR AN EFFECTIVE DATE. MOTION by Mr. Hill and SECOND by Mr. Wolff to approve Resolution No. R- 09 -35. 3 Richard H. Gillmor, Mayor ATTEST: Special City Council Meeting September 14, 2009 Page Four Result of Roll CaII: Ayes: All Nays: None Passed 5 -0 C. Amend Tentative Budget as Council Sees Fit, Recompute Proposed Millage If Necessary and Publicly Announce the Percent, If Any, by Which Recomputed Proposed Millage Exceeds Rolled -Back Rate (Any Recomputed Millage Can Only Be Decreased and Will Not Exceed Rolled -Back Rate) No budget amendments and no adjustmdnts to the millage were made. At this time, the City Manager again announced the proposed millage of 3.3456 mills which is a 12.1% reduction from the rolled back rate (3.8 mills). The City Attorney advised that at the final hearing, the final millage cannot exceed the proposed millage adopted at this hearing. 6. Being no further business, Mayor Gillmor adjourned the Special Meeting at 7:10 pm. Approved at the September 23, 2009 Regular City Council Meeting. Sally A. Maio, MMC City Clerk 4 Subject: Road Closures for Substance Awareness Council 5K Run Approved for Submittal by: City Manager Agenda No. t..)a. Department Origin. City Attorney: City Clerk: C.Q. Cew.. Date Submitted: September 16, 2009 For Agenda of: September 23, 2009 d Minner Exhibits: Park Use Permit Application and Information on 5K Run EXPENDITURE REQUIRED: None AMOUNT BUDGETED: N/A APPROPRIATION REQUIRED: None aff OF HOME OF PELICAN ISL ND CITY OF SEBASTIAN AGENDA TRANSMITTAL SUMMARY The Substance Awareness Council is seeking Council approval for road closures needed for their 5K Run fundraiser. This is the second run for the Substance Awareness Council. Their first run last July 4th went off without any problems. The attached letter outlines logistics associated with the run. This run will be on Saturday January 2, 2010 from 7:00 to 9:30AM. The run will start at the large pavilion in Riverview Park, head north on Indian River Drive to Jackson Street and back down to the Park. Indian River Drive from Harrison St. north to Jackson St. needs to be closed from 7AM to 9:30AM on Saturday, January 2, 2010 RECOMMENDED ACTION Move to approve closing Indian River Drive from Harrison St. north to Jackson St. on Saturday, January 2, 2010 from 7:30 to 9:30AM for the Substance Awareness Council 5K Run fundraiser. Chris McCarthy From: Steve Marcinik Sent: Monday, September 14, 2009 3:07 PM To: Chris McCarthy Cc: Bob Lockhart Subject: 5K Run/Walk Page 1 of 2 Thank you Chris for getting back to me. The Substance Abuse Council is looking to have a 5K fund raising benefit on Saturday January 2, 2010. We are looking at a run walk race venue on Indian River Drive from approximately just north of the south city limits to 1.55 miles north (the area of Indian River Drive and Davis Street) being closed from approximately 7:00 A.M. to 9:00 A.M. The scheduled 5K start time is 7:30 A.M. and expected completion should be approximately 45 to 50 minutes later. Indian River Drive, Main Street Boat Ramp Yacht Club boat ramp opening up after the last runner /walker passes the yacht club. Riverview Park rest rooms are requested to be open at 6:00 A.M. or shortly after. A request will be submitted to the Sebastian Police Department Community Service Volunteers to assist with the manning of the road closures. S.A.C. volunteers will be present at the park pavilion at approximately 6:00 A.M. for pre race registrations preparations which will include a D.J. for runner /walker motivational music. If there is any further information needed please contact me via cell or desk phone. Please check the appropriate_ Box: Mailing Address:• 5f tA.k� Telephone:(771) 770 48( Name of Organization or Group: Reason for Use: Requested Date(s) 0 �_O? Rain Date: IJCr.)E: Office Use Only: HOME OF PELICAN ISLAND 1225 Main Street, Sebastian, F1 32958 Telephone (772)589 -5330 Fax (772)589 -5570 CITY OF SEBASTIAN PARK USE PERMIT APPLICATION S K. fZ ui Time of Use: From:062( To: o40o Permit Fee Paid Date Initials I1. Park Event 50 to 300 Attendees $50.00 Application/Permit Fee or Special Event 301 or More Attendees $100.00 Application Fee Date: 09 10 Name of Permi ttee S Tv\MCC be4►2EN E S COGIAC Permits May Only be issued in the Name of an Adult or Le gally Organized Organization D `7 Address.: (S LQ SIT .1/020 F'L Will there be any sate of goods? Yes No X If yes, please describe type of goods on back Food or other types of vendors? Yes No If yes, please list name, address and type of vendors and schematic of any structures to be erected or otherwise assembled on back:° I, Stick 001 (I( the undersigned, acknowledge that I am the applicant or the authorized t of the applicant. I further acknowledge that I am aware of the provisi ns of the City of Sebastian Codes in respect to this application and the use of the City facilities for which I have applied for a permit to allow a Park Event Special Event. I have made myself familiar with the general rules and .lions pre ribed by City and agree to the terms of the permit. fi r Applicant/Agent g`t to re t\ )O(2 k Park Application Continued If Required List any vendor infor Schematic: OFFICE USE ONLY: Special Conditions of Permit as Requested by City Manager NAME ADDRESS p ages. TYPE Park Application Continued If Required List any vendor infor Schematic: OFFICE USE ONLY: Special Conditions of Permit as Requested by City Manager Subject: Road Closures for Sebastian River Middle School IB Program 5K Run Approved for Submittal by: City Manager /i At Agenda No. off, lit 0 Department Origi City Attorney: City Clerk: C Q /l 4 Date Submitted: September 16, 2009 For Agenda of: September 23, 2009 1 il inner Exhibits: Park Use Permit Application, Receipt and Letter from Middle School EXPENDITURE REQUIRED: None AMOUNT BUDGETED: N/A APPROPRIATION REQUIRED: None HOME OF PELICAN ISIANI3 CITY-OF SEBASTIAN AGENDA TRANSMITTAL SUMMARY The Sebastian River Middle School IB Program is seeking Council approval for road closures needed for their 5K Run fundraiser. The attached letter outlines logistics for the run. This year's run will be on Saturday, November 14, 2009 from 7:00 to 9:30AM. The run will start at the large pavilion in Riverview Park, head north on Indian River Drive to Jackson Street and back down to the Park. Indian River Drive from Harrison St. north to Jackson St. needs to be closed from 6:45AM to 9:30AM on Saturday, November 14, 2009 RECOMMENDED ACTION Move to approve closing Indian River Drive from Harrison St. north to Jackson St. on November 14, 2009 from 6:45AM to 9:30AM for the Sebastian River Middle School IB Program 5K Run fundraiser. 09/04/2009 10:11 7725895570 Park Event- 50 to 300 Attendees 550.00 Application/Permit Pee or Special Event 301 or More Attendees $100.00 Application Fee Date: 9 -14 All COW �v .A.1 -U B K. Name of Permittee: 11 h,v t Akt-r Permits May Only be issued 111 the Nana of an Adult or Legally Organized Organtzition Address.: f i'a.,lel 1 ��'-Cive-v I' etctL ;1c Mailing Address: 9400 C oL PA BO. j S €kt 3 J Telephone: j2 Name of Organization or Group: 51 1 f4-911-0a-A01,1 Reason for Use: V\ctil2t sew- Please check the appropriate Box: Rain Date: Requested Date(s) OMF OW PELICAN isL1ND 1225 Main Street. Sebastian, F1 32958 Telephone (772)589 -5330 Fax (772)589 -5570 CITY OF SEBASTIAN PARK USE PERMIT APPLICATION Nov, 11-4-D-1 Time of Use: From: .7 A-fry To: 1 30 tz:..w, Will there be any sale of goods? Yes No X If yes, please describe type of goods on back. Food or other types of vendors? Yes No Y If yes, please list name, address and type of vendors and schematic of any structures to be erected or otherwise assembled on back I, /IT vUaryterr the undersigned, acknowledge that I am the applicant or the authorized agent of the applicant. I Further acknowledge that I am aware of the provisions of the City of Sebastian Codes in respect to this application and the use the City facilities for which I have applied for a permit to allow a Park Event or a Special Event. I have made myself familiar with the general rules and regulations prescribed by the City and agree to the terms of the permit. Office Use Only: Permit Fee Paid Date initiaig ti1Y F �Q SL A ST AN CITY OF SEBASTIAN PAGE 02 Applicant /Agent Signature 09/04/2009 10:11 7725895570 Schematic: OFFICE USE ONLY: S eciat Conditions of Permit as Re uested by City Manager CITY OF SEBASTIAN Park Application Continued If Required List an vendor information and /or schematics on this a E. NAME ADDRESS TYPE PAGE 03 6E8to5► ra,f 2-t Name K►0D' 5G` /60c; CITY OF SEBASTIAN FINANCE DEPARTMENT RECEIPT 6120 Cash Date 5 k-el% l i 2.0 0 c Check Y vg 001001 208001 Sales Tax 001001 220000 Security Deposit -Com. Center 001001 220000 Security Deposit -Yacht Club 001501 322900 Garage Sale Permit 001501 329500 Alarm Citation 001501 341920 Copies 001501 351140 Parking Citation 001501 354100 Code Enforcement Fines 001501 342100 Police Security Services 001501 359000 Other Fines/Forfeitures 001501 362100 Rent Royalties/ Com. Center 001501 362100 Rent/Royalties/Yacht Club 001501 362150 Park Rent/Pavilion/Elect 001501 369900 Other Miscellaneous Revenue It -1`-1 -60( Total Paid O Cy Initials White Dept. of Origin Yellow Finance Pink Applicant Amount Paid SD oo Sep 14 2009 7:50RM SRMS To whom it may concern, Sebastian River Middle School would like to hold a 5K run/walk on. November 14, 2009 down by the river. Runner's Depot of Vero Beach will be helping us with this event. They are familiar with your instructions and know what to do to ensure this event will go smoothly. The Cowboy River Run/Walk 5K will begin with setup at 6:46am and the event will wrap up around 9:30am. This event is a fundraiser for the International Baccalaureate Program at Sebastian River Middle School. Our school is also trying to get the City of Sebastian moving forward to healthy living. We want everyone in the community to come out and get started to an active lifestyle with the whole family involved. Thank you for your time and consideration. Sincerel (Irk -1,e_. Anne Wmer Sebastian River /saddle School IB Physical. Education Teacher 7725645113 p.2 anager Subject: Police Retirement Board of Trustees A ro for Submittal by: HOME Of PEUCAN ISLAND Exhibits: FS185.05, Applications, Board Member List, Ad The applicant's resumes are attached alphabetically. Agenda No: 0q, /4 Department 0 in: City Clerk's Office City Clerk: City Attorney: Date Submitted: /16/09 For Agenda of: 9/23/09 SUMMARY STATEMENT The civilian positions are two year terms which expire October 1 Both current members, Mr. Taracka and Mr. Zomok, would like to serve again. Please note that because this board is statutorily regulated the City code limiting six years of service does not apply. RECOMMENDED ACTION Interview applicants, unless waived, and submit nominations for the two positions which will expire October 2011. 30 z) Statutes Constitution :View Statutes >2009- >Ch0185- >Section 05 flsenate.gov Page 1 of 3 Select Year: 12009 J The 2009 Florida Statutes Title XII Chapter 185 View Entire Chapter MUNICIPALITIES MUNICIPAL POLICE PENSIONS 185.05 Board of trustees; members; terms of office; meetings; legal entity; costs; attorneys fees. -For any municipality, chapter plan, local law municipality, or local law plan under this chapter: (1) In each municipality described in s. 185.03 there is hereby created a board of trustees of the municipal police officers' retirement trust fund, which shall be solely responsible for administering the trust fund. Effective October 1, 1986, and thereafter: (a) The membership of the board of trustees for chapter plans consists of five members, two of whom, unless otherwise prohibited by law, must be legal residents of the municipality and ust be appointed by the legislative body of the municipality, and two oT ihom must be police officers as detined in s. 185.02 who are elected by a majority of the active police officers who are members of such plan. With respect to any chapter plan or local law plan that, on January 1, 1997, allowed retired police officers to vote in such elections, retirees may continue to vote in such elections. The fifth member shall be chosen by a majority of the previous four members, and such person's name shall be submitted to the legislative body of the municipality. Upon receipt of the fifth person's name, the legislative body shall, as a ministerial duty, appoint such person to the board of trustees. The fifth member shall have the same rights as each of the other four members appointed or elected, shall serve as trustee for a period of 2 years, and may succeed himself or herself in office. Each resident member shalt serve as trustee for a period of 2 years, unless sooner replaced by the legislative body at whose pleasure the member serves, and may succeed himself or herself as a trustee. Each police officer member shall serve as trustee for a period of 2 years, unless he or she sooner leaves the employment of the municipality as a police officer, whereupon a successor shall be chosen in the same manner as an original appointment. Each police officer may succeed himself or herself in office. The terms of office of the appointed and elected members of the board of trustees may be amended by municipal ordinance or special act of the Legislature to extend the terms from 2 years to 4 years. The length of the terms of office shall be the same for all board members. (b) The membership of boards of trustees for local law plans shall be as follows: 1. If a municipality has a pension plan for police officers only, the provisions of paragraph (a) shall apply. 2. If a municipality has a pension plan for police officers and firefighters, the provisions of paragraph (a) shall apply, except that one member of the board shall be a police officer as defined in s. 185.02 and one member shall be a firefighter as defined in s. 175.032, respectively, elected by a majority of the active firefighters and police officers who are members of the plan. 3. Any board of trustees operating a local law plan on July 1, 1999, which is combined with a plan for general employees shall hold an election of the police officers, or police officers and firefighters if included, to determine whether a plan is to be established for police officers only, or for police officers and firefighters where included. Based on the election results, a new board shall be established as provided in subparagraph 1. or subparagraph 2., as appropriate. The municipality shall enact an ordinance to implement the new board by October 1, 1999. The newly established board shall take whatever action is necessary to determine the amount of assets which is http: /www.flsenate.gov /Statutes /index.cfm ?p =2& App _mode= Display_Statute &Searc... 9/16/2009 This page replaces circle pages 31 through 56. These pages are applications for the Police Officer Pension Board of Trustees and contain exempt information, per FS 119.071(4)(d). These applications are available for review in th(6 City Clerks office. August 25, 2009 HOrVItOF PELICAN ISLAND PRESS RELEASE CIVILIAN POSITIONS ON THE CITY OF SEBASTIAN POLICE OFFICER PENSION BOARD OF TRUSTEES THE CITY OF SEBASTIAN IS SEEKING APPLICANTS TO FILL TWO CIVILIAN POSITIONS ON THE POLICE OFFICER PENSION BOARD OF TRUSTEES WHOSE TERMS WILL EXPIRE 10/2011. THIS BOARD MEETS AT LEAST QUARTERLY IN COUNCIL CHAMBERS AT CITY HALL, 1225 MAIN STREET, SEBASTIAN. APPLICATIONS ARE AVAILABLE ON THE CITY'S WEBSITE WWW.CITYOFSEBSTIAN.ORG AND IN THE CITY CLERK'S OFFICE, CITY HALL, 1225 MAIN STREET, SEBASTIAN, BETWEEN THE HOURS OF 8:00 AM AND 4:30 PM AND WILL BE ACCEPTED UNTIL SEPTEMBER 16, 2009. Sebastian's police officer pension board needs civilian members TCPalm.com Page 1 of 1 TCPAL FLORIDA'S TREASURE COAST AND PALM BEACHES READ MORE AT WWWWTCPALM.COM By staff report Originally published 03:44 p.m., August 25, 2009 Updated 03:44 p.m., August 25, 2009 This board meets at least quarterly in the council chambers at City Hall. 2009 Scripps Treasure Coast Newspapers rF rr rturNDL Sebastian's police officer pension board needs civilian members SEBASTIAN The city of Sebastian is seeking applicants to fill two civilian positions on the police Officer pension board of trustees whole terms will expire October, 201 Applications are available on the city's Web site www.cityofsebstian.orq and in, the city Jerk's office, City Hall, 1225 Main St., 8 a.m. to 4:30 p.m. The deadline is Sept. 16. http: /www.tcpalm.com/ news 2009 /aug/25 /sebastian- police- officer- pension- board nee... 8/26/2009 Subject: 0 -09 -12 Noise Ordinance Ap ro for Submittal by: City Manager 4 4 1J Agenda No. Oil,. l zq Department Origi City Attorney: City Clerk: Ci Atto e Am_ •I� Date Submitted: 3/20/07 For Agenda of: 3/28/07 Exhibits: Memo, 0 -09 -12 EXPENDITURE REQUIRED: AMOUNT AVAILABLE: APPROPRIATION REQUIRED: SLR TIAN HOME OF PELICAN ISLAND CITY OF_ SEBASTIAN AGENDA TRANSMITTAL SUMMARY On August 26, 2009, the City Council approved the attached proposed ordinance, as amended. RECOMMENDED ACTION Hold public hearing. At Council's discretion, move to enact Ordinance No. 0- 09 -12. TO: Mayor and Members Sebastian City Council FROM: Robert A. Ginsburg City Attorney SUBJECT: Possible Amendment Noise Ordinance In response to a citizen inquiry, the Mayor asked for the preparation of a potential amendment to the noise ordinance for the City Council to consider that would expressly permit residents to use electrical generators in the aftermath of a public emergency without violating the ordinance. The following proposed amendment is submitted for your consideration: Sec. 67 -4. Exemption. MEMORANDUM (4) Noises from emergency work, which is to be construed as work made necessary to restore property to a safe condition following a public calamity, or work required to protect persons or property from an imminent exposure to danger, including without limitation noises from generators or other equipment used by residents, communications companies or other utility companies due to a commercial power outage or in connection with restoration of service operations. ORDINANCE NO. 0-09-12 AN ORDINANCE OF THE CITY OF SEBASTIAN, INDIAN RIVER COUNTY, FLORIDA, REPEALING SECTION 66-3 (4) AND ENACTING CHAPTER 67 OF THE CODE OF ORDINANCES OF THE CITY OF SEBASTIAN, FLORIDA, RELATING TO UNNECESSARY AND EXCESSIVE NOISE; PROVIDING ENFORCEMENT PROCEDURES AND EXEMPTIONS; REPEALING CONFLICTING PROVISIONS; PROVIDING FOR SEVERABILITY AND AN EFFECTIVE DATE. WHEREAS, The Sebastian City Council desires to make it unlawful for any person to make, continue, or cause to be made or continued any excessive, unnecessary, or unreasonably loud noise which disturbs the peace or quiet of any neighborhood or which causes discomfort or annoyance to any reasonable person of normal sensitivity NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF SEBASTIAN, INDIAN RIVER COUNTY, FLORIDA, as follows: Section 1. That section 66 -3 (4) Code of Ordinances, City of Sebastian, Florida, is hereby repealed as follows: Chapter 66 NUISANCES Sec. 66 -3. Illustrative enumeration Section 2. That Chapter 67 of the Code of Ordinances, City of Sebastian, Florida, is hereby enacted to read as follows: Chapter 67 NOISE Sec. 67 -1 Noises; unnecessary and excessive prohibited. Amended It shall be unlawful for any person to make, continue, or cause to be made or continued any unreasonably loud excessive unnecessary or unusual noise. A noise level which exceeds the ambient sound level by five (5) decibels or more, when measured at the nearest property line or, in the case of multifamily residential buildings, when measured anywhere in one dwelling unit or from common space in the same building, shall be deemed an unnecessary, excessive or offensive noise. A violation of this chapter may occur without the occasion of a decibel measurement being made if circumstances are such that a violation would be obvious to an ordinary, reasonable, prudent person. The following acts, among others, are declared to be unreasonably loud, excessive, unnecessary or unusual noises in violation of this Chapter but this enumeration shall not be deemed to be exclusive, namely: (1) Power tools and Landscaping Equipment. The operation of noise producing lawn mowers, lawn edgers, weed trimmers, blowers, chippers, chain saws, power tools and other noise producing tools which are used at a residence out -of -doors between 9:00 p.m. and 7:00 a.m. (2) Animals, birds, etc. The owning, harboring, possessing or keeping of any dog, animal or bird which causes frequent, habitual or continued noise and which disturbs the peace, quiet and comfort of neighboring residents. (3) Radios, televisions, CD players, musical instruments, speakers, loudspeakers, amplifiers, and similar devices in residential areas. The using, operating, or permitting to be played, used or operated an' radio, television, CD player, musical instrument, or other machine or device for the producing, reproducing or amplifying sound in such manner as to disturb the peace, quiet and comfort of neighboring residents. The operation of any such set, instrument, machine or device between the hours of 11:00 p.m. and 7:00 a.m. in such manner as to be plainly audible at a distance of one hundred (100) feet from the building, structure or vehicle in which it is located shall be prima facie evidence of a violation of this section. Sec. 67 -2 Responsibility for Compliance. For the purposes of this article, any person owning or having responsibility for management of a premises, however temporarily, or any performer or disc iockev producing sound upon any premises, any person playing music, any person having control of volume knobs or levels or amplification devices, and the business as named on the occupational license, if applicable, shall be jointly and severally liable for compliance with this article and shall be responsible for any violations of this article. Sec. 67 -3 Enforcement Procedure, Warnings Citations (1) Warnings. A first violation of this Chapter shall result in a warning, either oral or written, that details the violation with specificity and requires prompt corrective action be taken by any person(s) responsible for compliance as defined in Section 67 -2. (2) Citations. If corrective action is not taken within five (5) minutes of the warning, or if a warning for the same offense has been issued within the past sixty (60) days, an enforcement officer is authorized to issue a citation for each subsequent violation in accordance with the following schedule: The first citation shall carry a fine of $50.00 The second citation shall carry a fine of $250.00 The third and each subsequent citation shall carry a fine of $500.00. Sec. 67-4. Exemption. The following uses and activities shall be exempt from the noise regulations set forth in this chapter. (1) Noises of authorized safety signals and warning devices. (2) Noises emanating from any government vehicle or Property. (3) Noises emanating from non residential uses. (4) Noises from emergency work, which is to be construed as work made necessary to restore property to a safe condition following a public calamity, or work required to protect persons or property from an imminent exposure to danger, including without limitation noises from generators or other equipment used by communications companies or other utility companies due to a commercial power outage or in connection with restoration of service operations. (5) Any activity authorized by the city council or city manager. Section 3. CONFLICT. All ordinances or parts of ordinances in conflict herewith are hereby repealed. Section 4. SEVERABILITY. In the event a court of competent jurisdiction shall determine that any part of this Ordinance is invalid, the remainder of the Ordinance shall not be affected and it shall be presumed that the City Council of the "City of Sebastian did not intend to enact such invalid provision. It shall further be assumed that the City Council would have enacted the remainder of this Ordinance without said invalid provision, thereby causing said remainder to remain in full force and effect. Section 5. EFFECTIVE DATE. This Ordinance shall take effect upon its adoption by the City Council. The foregoing Ordinance was moved for adoption by Councilmember The motion was seconded by Councilmember and, upon being put to a vote, the vote was as follows: Mayor Richard H. Gillmor Vice -Mayor Jim Hill Councilmember Dale I. Simchick Councilmember Andrea B. Coy Councilmember Eugene Wolff The Mayor thereupon declared this Ordinance duly passed and adopted this day of August, 2009. CITY OF SEBASTIAN, FLORIDA By: Mayor Richard Gillmor ATTEST: Sally A. Maio, MMC City Clerk Approved as to Form and Legality for Reliance by the City of Sebastian only. Robert A. Ginsburg, City Attorney Words stricken shall be deleted; words underlined constitute the proposed amendment; remaining provisions continue in effect. Subject: George Street Ditch Rehabilitation p r e for Submittal by: Project Agenda No. oq. 015 Department Orig'; City Attorney: City Clerk: i M •er c./..,%40, 4�, Date Submitted: 16 SEP 09 A f inner, City Manager Exhibits: Construction Agreement, Neel- Schafer Recommendation EXPENDITURE REQUIRED: $77,876.75 AMOUNT BUDGETED: $76,093 APPROPRIATION REQUIRED: $2,000 CONTRACTOR LOCATION BID AMOUNT BID DIFFERENCE DIFFERENCE Sunshine Land Design Stuart, FL $77677 H &D Construction Fort Pierce FL $80,244 52367 3% Gre on Construction Sarver, PA $91,466 $13,589 15% Henry Fisher &Sons Sebastian, FL $92010 $14,133 15% Johnson Davis Lantana FL $99 745 $21,868 JoeBearll?Varden Palm Bay_, FL $118,000 $40,123 34% Cathco, Inc Vero Beach, FL $119 94C 35% RK Contractors Fort Pierce, FL $142,216 $64,339 45% SLR�ST HOME OF PELICAN ISLAND AGENDA TRANSMITTAL SUMMARY In January 2009, Council allocated $90,000 to fill in the ditch in the 900 block of George Street. Since that time, Neel- Schaffer has been retained for design and SJRWMD permits have been applied for and received. Project expenses to date for professional fees ($13,000), permits ($500) and advertising costs ($407) are $13,907, reducing the original budget of $90,000. $76,093 now remains for construction. On August 28, 2009, bids were opened publicly for construction of the project. Eight contractors submitted bids as follows: Neel- Schaffer and City staff have reviewed the bids for accuracy and completeness. Sunshine Land Design is the low bidder. This contractor has experience and is well known by the City. RECOMMENDATION Staff recommends the following actions: 1. Sunshine Land Design be awarded the George Street Ditch Rehabilitation Project in the amount of $77,877; 2. Approve the Construction Agreement; and, 3. Allocate an additional $2,000 from the Stormwater Reserve Fund in the amount of $2,000 to cover the overage. CONSTRUCTION SERVICES AGREEMENT THIS AGREEMENT made this 23 day of September 2009, by and between the City of Sebastian, a municipal corporation of the State of Florida, -1225 Main Street, Sebastian, Florida, 32958 "City") and Sunshine Land Design, Inc., 3291 Southeast Lionel Terrace, Stuart, Florida, 34997 "Contractor authorized to do business in the State of Florida. WHEREAS, the City desires to engage a Florida licensed contractor who has special and unique competence and experience in providing construction services necessary to complete the Project hereunder; and, WHEREAS, the Contractor represents that it has such competence and experience in providing these services; and, WHEREAS, the City in reliance on such representation has selected the Contractor in accordance with its procedure for selection of Contractor; and, WHEREAS, the City and the Contractor desire to reduce to writing their understanding and agreements on such professional services. IT IS, THEREFORE AGREED as follows: ARTICLE I The Contractual Relationship 1.0 EMPLOYMENT OF CONTRACTOR The City hereby agrees that it may engage the Contractor and the Contractor herby agrees to perform professional services for the City in accordance with this Agreement to Provide and install "STORMWATER MANAGEMENT IMPROVEMENTS FOR GEORGE STREET" PER PLANS AND SPECIFICATIONS. This Agreement is not an exclusive agreement and the City may employ other contractors, professional or technical personnel to furnish services for the City as the City in its sole discretion finds is in the public interest. The Agreement shall not be construed to create a contractual relationship of any kind between the City and the Subcontractor(s), or, between any person or firm other than the City and Contractor. The Contractor shall not sell, transfer, assign or otherwise dispose of the Contract or any portion thereof, or of his right, title of interest therein or his obligations thereunder, or moneys due or to become due under this Contract. 2.0 AGREEMENT DOCUMENTS The Agreement Documents (also called CONTRACT DOCUMENTS) consist of this Agreement, Supplemental Agreement(s), Notice of Initiation to Bid, Instructions for Bidders, Bid Proposal, Bond Forms, Bid Specifications and Scope of Work, Work Orders, Change Orders, Addenda if any, any other documents listed in the Agreement Documents, and written modifications issued after execution of this Agreement, if any. 2.1 INTENT The Specifications are an integrated part of the Contract Documents and as such will not stand alone if used independently. The Specifications establish minimum standards of quality for this Project. They do not purport to cover all details entering into the design and construction of materials or equipment. The intent of the Agreement Documents is to set forth requirements of performance, type of equipment and structures, and standards of materials and construction. It is also intended to include all labor and materials, equipment, and transportation necessary for the proper execution of the Work, to require new material and equipment unless otherwise indicated, and to require complete performance of the Work in spite of omission of specific reference to any minor component part and to include all items necessary for the proper execution and completion of the Work by the Contractor. Performance by the Contractor shall be required only to the extent consistent with the Agreement Documents and reasonably inferable from them as being necessary to produce the intended results. 2.2 ENTIRE AND SOLE AGREEMENT Except as specifically stated herein, the Agreement Documents constitute the entire agreement between the parties and supersede all other agreements, representations, warranties, statements, promises, and understandings not specifically set forth in the Agreement Documents. Neither party has in any way relied, nor shall in any way rely, upon any oral or written agreements, representations, warranties, statements, promises or understandings not specifically set forth in the Agreement Documents. 2.3 AMENDMENTS The parties may modify this Agreement at any time by written agreement. Neither the Agreement Documents nor any term thereof may be changed, waived, discharged or terminated orally, except by an instrument in writing signed by the party against which enforcement of the change, waiver, discharge or termination is sought. 2.4 CONSTRUING TERMS This Agreement shall not be construed against the party who drafted the same, as both parties have obtained experts of their choosing to review the legal and business adequacy of the same. 2.5 GOVERNING LAW AND WAIVER OF TRIAL BY JURY This Agreement shall be governed by the laws of the State of Florida, and any venue for any action pursuant to the Agreement Documents shall be in Indian River County, Florida. The parties hereto expressly waive trial by jury in any action to enforce or otherwise resolve any dispute arising hereunder. 2.6 TERM This Agreement shall commence on the day it is executed by both parties and the term of the Agreement shall extend until the Project is complete unless terminated in accordance with the terms hereunder. A -7 3.0 DEFINITION OF TERMS 3.1-- GENERAL Whenever the following terms appear in these Agreement Documents, their intent and meaning shall, unless specifically stated otherwise, be interpreted as shown. 3.2 ACT OF GOD The words "Act of God" mean an earthquake, flood, hurricane (or other named tropical event), tornado or other cataclysmic phenomenon of nature. Rain, Wind or other natural phenomenon (including tropical waves and depressions) of normal intensity for the locality shall not be construed as an Act of God. 3.3 ADDENDUM (re: bid documents) A modification of the plans or other contract documents issued by the Owner and distributed to prospective bidders prior to the opening of bids. All Addenda shall be considered as part of the Contract Documents. 3.4 AGREEMENT A written agreement between the Contractor and Owner defining in detail the work to be performed. The words Agreement and Contract, are one and the same. 3.5 A.S.T.M. DESIGNATION Wherever the letters "A.S.T.M." are used in the Specifications, it shall be understood as referring to the American Society for Testing Materials. When reference is made to a certain Designated Number of a specification or test as set out or given by the American Society for Testing Materials, it shall be understood to mean the current, up-to -date standard specification or tentative specification for that particular process, material or test as currently published by that group. 3.6 BID The bid or proposal is the written offer of a Bidder to perform work described by the contract documents when made out and submitted on the prescribed proposal form properly sealed and guaranteed. The bid or proposal shall be considered as part of the Contract Documents. 3.7 BID BOND or PROPOSAL GUARANTEE No Bid Bond or Proposal Guarantee will be required for this project. A-8 3.8 BIDDER 3.9 CHANGE ORDER 3.10 CONTRACT ADDENDUM An individual, partnership, or corporation submitting a proposal for the work contemplated; acting directly or through a duly authorized representative. A written order issued to the Contractor by the City covering changes in the plans, specifications, or scope of work when the amount of work changed is not deemed sufficient to require a supplemental agreement, and/or to cover adjustments in the Contract Price or Contract Time. A special written provision modifying or clarifying the terms and conditions of the Contract. The Contract Addendum shall be considered as part of the contract documents. 3.11 CONTRACTOR The word "Contractor" shall mean an individual, partnership, or corporation, and its heirs, executors, administrators, successors and assigns, or the lawful agent of any such individual, firm, partnership, covenant or corporation, or its surety under any contract bond, constituting one of the principals to the Contract and undertaking to perform the work herein. 3.12 DIRECTED. ORDERED. APPROVED ETC. Wherever in the Agreement Document the words "directed "ordered "approved "permitted "acceptable or words of similar import are used, it shall be understood that the direction, order, approval or acceptance of the Owner is intended unless otherwise stated. 3.13 ENGINEER A Professional Engineer duly licensed and registered in the State of Florida and designated by the City as the Engineer -of- Record. The City may designate a staff member as Engineer who is not licensed. 3.14 GENERAL CONDITIONS The directions, provisions and requirements contained within the Agreement Documents, all describing the general manner of performing the Work including detailed technical requirements relative to labor, material equipment, and methods by which the Work is to be performed and prescribing the relationship between the City and the Contractor. 3.15 INSPECTOR A duly authorized representative of the City assigned to make official inspections of the materials furnished and of the work performed by the Contractor. A -9 3.16 LABORATORY Any licensed and qualified independent laboratory designated by or acceptable to the Owner to perform necessary testing of materials. 3.17 OWNER City of Sebastian 3.18 PERFORMANCE AND PAYMENT BONDS Contractor shall submit bonds in the form prescribed by State Law, and generally as shown on sample forms herein, for Performance and Payment, no performance or payment bonds for this project. 3.19 PLANS The official, approved engineering plans, including reproduction thereof, showing the location, character, dimensions and details of the work to be done. All shop drawings submitted by the Contractor shall be considered as part of the contract documents. 3.20 PROPOSAL The proposal or bid is the written offer of a Bidder to perform the work described by the Contract Documents when made out and submitted on the prescribed proposal form, properly signed and guaranteed. The proposal or bid shall be considered as part of the contract documents. 3.21 SPECIAL CONDITIONS Special clauses or provisions, supplemental to the Plans, Standard Specifications and other contract documents, setting forth conditions varying from or additional to the Standard Specifications for a specific project. 3.22 SPECIFICATIONS The directions, provisions, and requirements together with all written agreements made or to be made, setting forth or relating to the method and manner of performing the Work, or to the quantities and qualities of materials, labor and equipment to be furnished under the Agreement. 3.23 SUBCONTRACTOR An individual, partnership or corporation supplying labor, equipment or materials under a direct contract with the contractor for work on the project site. Included is the one who supplies materials fabricated or formulated to a special design according to the plans and specifications for the particular project. 3.24 SUPPLEMENTAL AGREEMENT A written understanding, or proposal and acceptance, executed between the City and the Contractor subsequent to execution of the Agreement herein with the written consent of the Contractor's Surety, relating to the work covered by the Agreement and clarifying or furthering the terms thereof. A modification to the Agreement shall be made by Contract Addendum. 3.25 SURETY Surety is a corporation qualified to act as surety under the laws of Florida, who executes the Contractor's Performance and Payment Bonds and is bound with the Contractor for the acceptable performance of the contracted work and for the payment of all debts pertaining thereto. 3.26 WORK, (The) or PROJECT, (The) The public improvement contemplated in the Plans and Specifications, and all actions necessary to construct the same. 3.27 WORK ORDER Work orders are work instructions including specifications and plans that show the location, character, dimensions and details to the work to be done. Work orders are specific instructions, of limited scope, that will be a part of this contract. Work orders shall be considered as part of the contract documents. Any Work Orders considered to be Change Orders of any kind shall be in writing and address, at a minimum, any changes in the scope of work and the related impact on Contract Price Cost and Time Schedule. ARTICLE II Performance 4.0 PLANS, SPECIFICATIONS AND RELATED DATA 4.1 INTENT OF PLANS AND SPECIFICATIONS The intent of the Plans, Specifications, Work Orders and other Contract Documents is that the Contractor furnishes all labor and materials, equipment, supervision and transportation necessary for the proper execution of the Work unless specifically noted otherwise. The Contractor shall do all the work shown on the Plans and described in the Specifications and other Contract Documents and all incidental work considered necessary to substantially complete the Work ready for use, occupancy, or operation in a manner acceptable to the City. 4.2 CONFLICT In the event of any inconsistency, discrepancy or conflict between the Agreement, the Plans, Specifications, and other Contract Documents, the Agreement shall prevail and govern over all except a subsequently executed Contract Addendum; in the event of an inconsistency, discrepancy or conflict between the Plans and Specifications, the Specifications shall prevail and govern. 4.3 DISCREPANCIES IN PLANS Any discrepancies found between the Plans and Specifications and site conditions, or any errors or omissions in the Plans or Specifications, shall be immediately reported to the Engineer and City. The Engineer shall promptly determine the validity and seriousness of the claimed condition and correct any such error or omission in writing, or otherwise direct Contractor. Any work done by the Contractor after his discovery of such discrepancies, errors or omissions shall be done at the Contractor's risk. Any correction or errors or omissions in Plans and Specifications may be made by the Engineer when such correction is necessary for the proper fulfillment of their intention as construed by the Engineer. Where said correction of errors or omissions, except as provided in the next two (2) paragraphs below, adds to the amount of work to be done by the Contractor, compensation for said additional work shall be made under the Paragraph 10.7 CHANGES IN THE WORK below, except where the additional work may be classed under some item of work for which a unit price is included in the proposal. The fact that specific mention of any part of work is omitted in the Specifications, whether intentionally or otherwise, when the same is clearly shown or indicated on the Plans, or is usually and customarily required to complete fully such work as is specified herein, will not entitle the Contractor to consideration in the matter of any claim for extra compensation, but the said work must be installed or done the same as if called for by both the Plans and Specifications. All work indicated on the Plans and not mentioned in the Specifications or vice versa, and all work and material usual and necessary to make the Work complete in all its parts, whether or not they are indicated on the Plans or mentioned in the Specifications, shall be furnished and executed the same as if they were called for by both the Plans and Specifications. A -I2 The Contractor will not be allowed to take advantage of any errors or omissions in the Plans and Specifications. The Engineer will provide full information when errors or omissions are discovered. 4.4 DRAWINGS AND SPECIFICATIONS AT JOB SITE One (1) complete set of all Plans, Specifications, Work Orders, Addenda, Change Orders, Shop Drawings and samples shall be maintained at the job site, in good order and annotated to show all changes made during the construction process, and shall be available to the Engineer and City at all times. A final copy thereof, along with "as- built" record drawings, operations and maintenance manuals, and data sheets, shall be delivered to the Engineer upon thd completion of the Work. 4.5 DIMENSIONS Dimensions shown on the Plans will be used. Where the work of the Contractor is affected by fmished dimensions, these shall be verified by the Contractor at site, and he shall assume the responsibility for their use. 4.6 SAMPLING AND TESTING Except as otherwise provided, sampling and testing of all materials, and the laboratory methods and testing equipment, required under the Specifications shall be in accordance with the latest standards or tenets of the American Society for Testing Materials. The testing of samples and materials shall be made at the expense of the Contractor, except where indicated otherwise. The Contractor shall furnish any required samples without charge. The Contractor shall be given sufficient notification of the placing of orders for materials to permit testing. As an exception to the above, when the Contractor represents a material or an item of work as meeting Specifications and under recognized test procedures it fails, any re- testing shall be at the Contractor's expense, billed at the Testing Laboratory's standard rate for individual tests. It is expected that all inspections and testing of materials and equipment will be done locally. If the Contractor desires that inspections for tests be made outside of the local area, all expenses, including per diem for the Engineer or Inspectors, shall be borne by the Contractor. 4.7 SHOP DRAWINGS The Contractor shall provide shop drawings, setting schedules, and other drawings as may be necessary for the prosecution of the Work in the shop and in the field as required by the Plans and Specifications or Engineer's instructions. Deviations from the Plans and Specifications shall be called to the attention of the City at the time of the first submission of shop drawings and other drawings. The City's approval of any shop drawings shall not release the Contractor from responsibility for errors, corrections of details, or conformance with the Contract. Shop drawings shall be submitted according to the following schedule: (a) Seven (7) copies shall be submitted to the City at least thirty (30) days before the materials indicated thereon are to be needed or earlier if required to prevent delay of work or to comply with subparagraph (b). A -13 (b) The City shall, within fourteen (14) days of the submittal of any shop drawings, return three (3) copies to the Contractor marked with any corrections and changes required and noting if the drawings are acceptable as noted, or if resubmittal is required. (c) The Contractor shall then correct the shop drawings to conform to the corrections and changes requested by the City and resubmit six (6) copies to the City. (d) Three (3) copies of Approved Shop Drawings shall be returned to the Contractor by the City. 4.8 QUALITY OF EQUIPMENT AND MATERIALS In order to establish standards of quality, the Specifications may refer to certain products by name and catalog number. This procedure is not to be construed as eliminating from competition other products of equal or better quality by other manufacturers where fully suitable in design. The Contractor shall furnish to the City a complete list of his proposed desired substitutions prior to the signing of the Contract, together with such engineering and catalog data as the City may require. Further substitutions may be submitted during the course of work in accordance with Paragraph 4.10 SUBSTITUTION OF EQUIPMENT AND /OR MATERIAL below. The Contractor shall abide by the City's judgment when proposed substitution of materials or items or equipment are judged to be unacceptable and shall furnish the specified material or item of equipment in such case. All proposals for substitutions shall be submitted to the City in writing by the Contractor and not by individual trades or material suppliers. The City will advise of approval or disapproval of proposed substitutions in writing within a reasonable time. No substitute materials shall be used unless approved by City in writing. 4.9 EQUIPMENT APPROVAL DATA A -14 The Contractor shall furnish one (1) copy of complete catalog data for every manufactured item of equipment and all components to be used in the Work, including specific performance data, material description, rating, capacity, material gauge or thickness, brand name, catalog number and general type. This submission shall be compiled by the Contractor and submitted to the City for review and written approval before any of the equipment is ordered. Each data sheet or catalog in the submission shall be indexed according to specification section and paragraph for easy reference. After written approval is received by the Contractor, submission shall become a part of the Contract and may not be deviated from except upon written approval of the City. Catalog data for equipment approved by the City does not in any case supersede the Contract Documents. The acceptance by the City shall not relieve the Contractor from responsibility for deviations from Plans or Specifications, unless he has called the City's attention, in writing, to such deviations at the time of submission, nor shall it relieve him from responsibility for errors of any sort in the items submitted. The Contractor shall check the work described by the catalog data with the Contract Documents for deviations and errors. It shall be the responsibility of the Contractor to insure that items to be furnished fit the space available. He shall make necessary field measurements to ascertain space requirements, including those for connections, and shall order such sizes" and shapes of equipment that the field installation shall suit the true intent and meaning of the Plans and Specifications. Where equipment requiring different arrangement of connections from those shown is approved, it shall be the responsibility of the Contractor to install the equipment to operate properly, and in harmony with the intent of the Plans and Specifications, and to make all changes in the Work required by the different arrangement of connections at his own expense. 4.10 SUBSTITUTION OF EQUIPMENT AND /OR MATERIAL After the execution of the Contract Agreement, the substitution of equipment and/or material for that specified will be considered if: (a) The equipment and/or materials proposed for substitution is determined by the City to be equal or superior to that specified in the Contract; (b) Unless determined to be of superior quality, the equipment and/or material proposed for substitution is less expensive than that specified and that such savings to the City, as proposed by the Contractor, are submitted with the request for substitution. If the substitution is approved, the Contract price shall be reduced accordingly; and (c) The equipment and/or material proposed for substitution is readily available and its delivery and use, if approved as a substitution, will not delay the scheduled start and completion of the specified work for which it is intended or the scheduled completion of the entire work to be completed under the contract. No request will be considered unless submitted in writing to the City and approval by the City must also be in writing. To receive consideration, requests for substitutions must be accompanied by documentary proof of the actual difference in cost to the Contractor in the form of quotations to the contractor covering the original equipment and/or material, and also equipment and/or material proposed for substitution or other proof satisfactory to the City. It is the intention that the City shall receive the full benefit of the saving in cost involved in any substitution unless the item is substituted for one designated in the Specifications by specific manufacturer's name and type, in which case one -third of the savings shall accrue to the benefit of the Contractor. In all cases, the burden of proving adequate proof that the equipment and/or material offered for substitution is equal or superior in construction and/or efficiency to that named in the Contract shall rest on the Contractor and the proof will be submitted to the City. Request for substitution of equipment and/or material which the Contractor cannot prove to the satisfaction of the City, at its sole discretion and judgment, to be equal or superior in construction and/or efficiency to that named in the Contract will not be approved. A -15 5.0 MATERIALS AND WORKMANSHIP 5.1 MATERIALS FURNISHED BY THE CONTRACTOR All materials and equipment used in the Work shall meet the requirements of the respective Specifications, and shall not be used until it has been approved in writing by the City. Wherever the specifications call for an item of material or equipment by a manufacturer's name and type, and additional features of the item are specifically required by the specifications, the additional features specified shall be provided whether or not they are normally included in the standard manufacturer's item listed. Wherever the specifications call for an item of material or equipment by a manufacturer's name and type, and the specified item becomes obsolete and is no longer available, the Contractor shall provide a substitute item of equal or superior quality and performance which is acceptable to the Engineer and City and is currently available, at no increase in Contract price. 5.2 STORAGE OF MATERIALS Materials and equipment shall be stored so as to incur the preservation of their quality and fitness for the Work. When considered necessary, they shall be placed on wooden platforms or other hard clean surfaces, and not on the ground, and/or they shall be placed under cover. Stored materials and equipment shall be located so as to facilitate prompt inspection. Private property zoned for or adjacent to land zoned for residential uses shall not be utilized for storage purposes without special prior arrangement. 5.3 REJECTED WORK AND MATERIAL Any materials, equipment or work which does not satisfactorily meet the Specifications may be condemned by the Engineer or City by giving a written notice to the Contractor. All condemned materials, equipment or work shall be promptly taken out and replaced. All materials and equipment which do not conform to the requirements of the Contract Documents, are not equal or superior to samples approved by the Engineer and City, or are in any way unsatisfactory or unsuited to the purpose, for which they are intended, shall be rejected. Any defective work whether the result of poor workmanship, use of defective materials, damaged through carelessness or from other cause shall be removed within ten (10) days after written notice is given by the City, and the work shall be re- executed by the Contractor. The fact that the Engineer or the City may have previously overlooked such defective work shall not constitute an acceptance of any part of it. Should the Contractor fail to remove rejected work or materials within ten (10) days after written notice to do so, the City may remove them and may store the materials and equipment. Satisfaction of warranty work after final payment shall be in accordance with Paragraph 10.15. 5.4 MANUFACTURER'S DIRECTION Manufactured articles, materials and equipment shall be applied, installed, connected, erected, used, cleaned, and conditioned as directed by the manufacturer unless herein specified to the contrary. A -16 5.5 SKILL AND CHARACTER OF WORKERS All workers must have sufficient knowledge, skill and experience to perform properly the work assigned to them. Any supervisor or worker employed by the Contractor or subcontractors who, in the opinion of the Engineer or the City does not perform his work in a skillful manner, or appears to be incompetent or to act in a disorderly or intemperate manner shall, at the written request of the City, be discharged immediately and shall not be employed again in any portion of the Work without the approval of the City. The Contractor shall at all times be responsible for the conduct and discipline of its employees and/or any subcontractor or persons employed by subcontractors. 5.6 CUTTING AND PATCHING The Contractor shall do all necessary cutting and patching of the Work that may be required to properly receive the work of the various trades or as required by the Plans and Specifications to complete the Work. Contractor shall restore all such cut or patched work as directed by the Engineer or the City. Cutting of existing structures that could endanger the Work, adjacent property, workmen or the public shall not be done unless approved by the Engineer and under Engineer's surveillance. 5.7 CLEANING UP The Contractor shall at all times keep the premises free from accumulation of waste materials or rubbish caused by its employees or work. At the completion of the Work, contractor shall remove all rubbish, tools, scaffolding and surplus materials and shall leave the Work "broom clean" or its equivalent, unless more exactly specified, and shall insure that all debris and other unsightly objects are removed and disposed of in a satisfactory manner. At no additional expense to the City, the Contractor will restore to their original conditions or better, as nearly as practicable, those portions of the site not designated for alteration and all such property, structure, utilities, landscaping, etc., disturbed or damaged during the prosecution of the Work. Final payment will be withheld until such clean up and repairs are completed The Work will be considered complete only after all debris and unused material due to or connected with the Work have been removed and the surrounding area left in a condition satisfactory to the City. In the event the City finds that the Contractor has not complied in keeping the job site clean, the City may, after twenty -four (24) hours written notice to the Contractor to correct the situation, elect to have the job site cleaned by an independent labor force. The cost of cleaning by said independent labor force shall be deducted from moneys due the Contractor. 5.8 CITY'S OWNERSHIP OF MATERIALS Any and all materials, whether structural or natural, found within the limits of the project remain the property of the City unless City ownership is specifically conveyed to the Contractor. All material, equipment and work become the sole property of the City as installed. These provisions shall not be construed as relieving the Contractor from the sole responsibility for all materials and work for which payments have been made, for the restoration of damaged work, or as a waiver of right of the City to require the fulfillment of all the terms of the Contract. A -17 5.9 GUARANTEE The Contractor shall warrant all its material and equipment furnished and work performed for a period of one (1) year from the date of final written acceptance of the Work by City. Satisfaction of warranty work after final payment shall be as per Paragraph 10.15. All equipment and material warranties or guarantees shall be drawn in favor of the City and the originals thereof furnished to the Engineer for review and acceptance prior to final payment. Such guarantee shall in no way limit or relieve the Contractor of liability from subsequent claims of beach of contract due to substandard materials or workmanship, nor shall such warranty period shorten the statute of limitations for bringing a breach of contract or other action based upon any such deficiencies. 6.0 CONSTRUCTION STAKING TO BE PERFORMED BY CONTRACTOR 6.1 PERSONNEL, EQUIPMENT AND RECORD REQUIREMENTS Adequate field notes and records shall be available for review by the City and Engineer as the Work progresses and copies shall be available if necessary. Any inspection or checking of the Contractor's field notes or layout work by the City and the acceptance of all or any part thereof, shall not relieve the Contractor the responsibility to achieve the lines, grades and dimensions shown in the Plans and Specifications. Prior to final acceptance of the project, the Contractor shall mark in a permanent manner on the surface of the completed Work all control points shown on the Plans. 6.2 CONTROL POINTS FURNISHED BY THE CITY The City will provide boundary or other control points and bench marks as shown on the Plans as "Contractor's Survey Control Point if any is provided. The Contractor shall be responsible for all survey control of his work during construction. The Contractor shall preserve all reference points and benchmarks furnished by the City. 6.3 FURNISHING OF STAKE MATERIALS The Contractor shall furnish all stakes, templates and other materials necessary for establishing and maintaining the lines and grades necessary for control and construction of the Work. 6.4 LAYOUT OF WORK Utilizing the control points furnished by the City in accordance with Paragraph 6.2, the Contractor shall establish all horizontal and vertical controls necessary to construct the Work in conformance with the Plans and Specifications. The Work shall include performing all calculations required and setting all stakes needed such as grade stakes, offset stakes, reference point stakes, slope stakes, and other reference marks or points necessary to provide lines and grades for construction of all contract items. A -I8 -Cr?) Survey notes indicating the information and measurements used in establishing locations and grades shall be kept in notebooks and furnished to the Engineer with the record drawings for the Project. 6.5 SPECIFIC STAKING REOUIREMENTS Stakes to establish lines and grades shall be set at appropriate intervals to assure that the Project is constructed to meet the lines and grades shown on the Plans. For construction stakes and other control, references shall be set at sufficiently frequent intervals to assure that all components of a structure are constructed in accordance with the lines and grades shown in the Plans. 6.6 PAYMENT The cost of performing layout work as described above shall be included in the contract prices for the various items of work to which it is incidental. 6.7 COORDINATION WITH CITY The City's recorded subdivision plats shall be considered correct. The distance, bearing and curve information provided shall be used by the Contractor's surveyor to establish alignment throughout construction. All surveying activities will be coordinated with the City's surveyor as needed for proper completion of all work on the site. Primary control monuments, originally set by the City, that are disturbed or destroyed during construction shall be accurately replaced by the Contractor's surveyor to the satisfaction of the City's surveyor. 6.8 LOCATION OF EXISTING UTILITIES AND PIPING All existing underground utilities, such as telephone, cable television and electrical cables must be located by the Contractor prior to starting work. The Contractor shall contact the Utilities at least 48 hours prior to commencing any work within the project area. There may be other utilities within the project area. The cost of substantiating the location of utilities shall be borne by the Contractor and included in the bid price. The Contractor shall be responsible for the repair and/or replacement of any damage caused to utilities by Contractor forces during the course of construction. Utilities deemed to require relocation shall be identified by the Contractor prior to commencing work. The Contractor shall notice the City of the conflict and seek direction from the City prior to proceeding with work. Directions from the City may be to proceed despite conflict, place work order on hold and commence work at a different location, or relocate utilities under separate contract with the utility or a change order to be directed by the City. A -19 7.0 PROGRESS AND COMPLETION OF WORK 7.1 CONTRACTOR'S CiBLIGATION Contractor shall supervise and direct the Work, using Contractor's best skill and attention. Contractor shall be solely responsible for and have control over construction means, methods, techniques, sequences and procedures and for coordinating all portions of the Work under this Contract, unless the Contract Documents give other specific instructions concerning these matters. Unless otherwise provided in the Contract Documents, Contractor shall provide and pay for labor, materials, equipment, tools, construction equipment and machinery, water, heat, utilities, transportation, and other facilities and services necessary for the proper execution and completion of the Work, whether temporary or permanent and whether or not incorporated or to be incorporated in the Work. Unless otherwise provided in the Contract Documents, Contractor shall pay all sales, use and other similar taxes. Contractor shall enforce strict discipline and good order among Contractor's employees and other persons carrying out the Work. Contractor shall not permit employment of unfit persons or persons not skilled in tasks assigned to them. Contractor currently holds and shall maintain at all times during the term of this Contract all required federal, state and local licenses necessary to perform the Work required under the Contract Documents. Contractor shall be responsible to the City for the acts and omissions of Contractor's employees, Subcontractors and their agents and employees, and other persons performing portions of the Work under a contract with Contractor. Contractor shall indemnify, defend and hold City harmless from all claims arising out of or related to its performance of the Work except for acts arising solely from the active negligence of the City. 7.2 START OF CONSTRUCTION The Contractor shall commence work on the date specified in the Notice to Proceed subsequently issued by the City, or as specifically noted in any Contract Addendum. However, in no case shall the Contractor commence work until the City has been furnished and acknowledges receipt of the Contractor's Certificates of Insurance and a properly executed performance and payment bond as required. 7.3 CONTRACT TIME The contractor shall complete, in an acceptable manner, all of the Work in the time stated in the Contract Agreement and any Addenda or Change Orders thereto. The contract time is 120 consecutive calendar days from start of work date. 7.4 SCHEDULE OF COMPLETION The Contractor's schedules are subject to the approval of the City, which shall not be unreasonably withheld, and shall reflect a logical sequence of the various components of work and the anticipated rates A -20 of production necessary to complete the Work on or before the completion date. Said schedules shall be submitted within ten (10) days of the execution of the agreement by the City except when requested otherwise and shall be updated and resubmitted to the City on the twenty-fifth (25th) day of every month with the Contractor's pay request. 7.5 COORDINATION OF CONSTRUCTION/ PRECOI4STRUCTION CONFERENCE The Contractor shall coordinate its work with other contractors, the City, and utilities to assure orderly and expeditious progress of work. The City shall hold a pre construction conference at Sebastian City Hall at a time and date mutually agreed upon with the Contractor after the Contract has been awarded and fully executed. 7.6 PROPERTY OF OTHERS A. Public Ownership The Contractor shall be responsible for the preservation of all public property, trees, monuments, etc., along and adjacent to the street and/or right -of -way, and shall use every precaution necessary to prevent damage or injury thereto. He shall use suitable precautions to prevent damage to pipes, conduits and other underground structures, and shall protect carefully from disturbance or damage all monuments and property marks until a land surveyor has witnessed or otherwise referenced their location and shall not remove them until so directed by the Engineer in writing. The City shall remove and relocate all traffic control signs as required. B. Private Ownership Mail and newspaper boxes, sprinlder systems, omamental shrubs, lawn ornaments, house numbers, fences, etc. may be removed and relocated by the property owners. The City will not remove, relocate, or re- install mail boxes, sprinkler systems, ornamental shrubs, etc. belonging to a private property owner. However, should such items not be removed or relocated by the start of construction, the Contractor shall remove the objects, in a manner which does not damage or injure the objects at no extra cost to the City, which interfere with the construction of the Project and place them on the property owner's front lawn just outside the project limits. Otherwise, the Contractor shall not enter upon private property for any purpose without obtaining permission from the property Owner thereof. Where extensive intrusions upon private property are required for construction, the City and Contractor shall cooperate to obtain Temporary Construction Easements from the landowner. 7.7 PROTECTION OF EXISTING UTILITIES AND FACILITIES All utilities and all structures of any nature, whether below or above ground, that may be affected by the Work but are not required to be disturbed or relocated by the very nature of the project, shall be protected and maintained by the Contractor and shall not be disturbed or damaged by Contractor forces during the progress of the Work; provided that, should the Contractor disturb, disconnect or damage any utility or any structure, all expenses of whatever nature arising from such disturbance or the replacement or repair and testing thereof shall be borne by the Contractor. A -21 7.8 CROSSING PUBLIC FACILITIES When new construction crosses highways, railroads, streets or similar public facilities under the jurisdiction of state, county, city, or other public agency or private entity, the City through the Engineer shall secure written permission prior to the commencement of construction of such crossing. The Contractor will be required to furnish evidence of compliance with conditions of the permit from the proper authority before final acceptance of the Work by City. Road closures are governed by Paragraph 8.3. 7.9 CHANGES IN THE WORK The City may order changes in the Work through additions, deletions or modifications without invalidating the Contract; however, any change in the scope of work or substitution of materials shall require the written approval of the City. Compensation and time of completion affected by the change shall be adjusted at the time of ordering such change. New and unforeseen items of work found to be necessary and which cannot be covered by any item or combination of items for which there is a contract price shall be classed as changes in the Work. The Contractor shall do such changes in the Work and furnish such materials, labor and equipment as may be required for the proper completion of construction of the work contemplated. In the absence of such written order, no claim for changes in the Work shall be considered. Changes in the Work shall be performed in accordance with the Specifications where applicable and work not covered by the specifications or special provisions shall be done in accordance with specifications issued for this purpose. Changes in the Work required in an emergency to protect life and property shall be performed by the Contractor as required. 7.10 EXTENSION OF CONTRACT TIME No extension of time shall be valid unless given in writing by the City. No monetary compensation shall be given for such delay. A delay beyond the Contractor's control occasioned by an "Act of God" may entitle the Contractor to an extension of time in which to complete the Work as determined by the City provided, however, the Contractor shall immediately give written notice to the City of the cause of such delay. "Rain day" extensions shall be granted upon written request of the Contractor to the City's Project Manager when said Project Manager determines that weather conditions make it counterproductive to work on said days. "Rain day" requests must be submitted at the end of each work week or be waived, and the cumulative "rain day" extensions granted shall be processed as a Change Order with each pay submittal. In the event that the City suspends the Work as provided in Paragraph 9.3, the Contractor shall be granted an extension of time to complete the Work for as many calendar days as the Work was suspended; except, however, that the Contractor will not be granted an extension of time to complete the Work if the suspension was caused by a fault of the Contractor. 7.11 CORRECTION OF WORK Contractor shall, at no cost to the City, promptly correct Work failing to conform to requirements of the Contract Documents, whether observed before or after completion of the Work and whether or not A -22 fabricated, installed or completed, and shall correct any Work found to be not in accordance with the requirements of the Contract Documents within a period of one (1) year from the date of completion of the Work or by the terms of an applicable special warranty required by the Contract Documents. The provisions of this Paragraph apply to the Work done by Subcontractors as well as to the Work done by direct employees of Contractor. Nothing contained in this Paragraph shall be construed to establish a period of limitation with respect to other obligations which Contractor might have under the Contract Documents. Establishment of the time period of one (1) year as described in Subparagraph 7.11(a) above relates only to the specific obligation of Contractor to correct the Work, and has no effect on the time within which the obligations of the Contract Documents may be enforced, nor to the time within which proceedings may be commenced to establish Contractor's liability with respect to Contractor's remaining contractual obligations. 7.12 LIQUIDATED DAMAGES In the event Contractor violates or fails to perform any provision of the Contract Documents, then the City may elect to receive, and Contractor agrees to pay, liquidated damages in the amount of one hundred dollars ($100) per day beyond the agreed completion date. Inspection of the Work by the City and the subsequent issuance of a notice by the City indicating substantial completion will be the date used to signify work completion. If completion is beyond the schedule agreed upon, liquidated damages may be imposed by the City on the Contractor and will be withheld from payment. It is expressly acknowledged by Contractor that said payment shall not be interpreted nor construed as a penalty but is in fact a good faith attempt to fix damages which the City will suffer in the event Contractor fails to perform as required hereunder or violates any provision of the Contract Documents. 8.0 PUBLIC HEALTH AND SAFETY 8.1 PROTECTION OF PERSONS AND PROPERTY The Contractor shall submit, for the City's approval, a project safety and security plan which describes the Contractor's plans and procedures to protect the safety and property of property owners, residents, and passers -by. The plan shall describe measures and precautions to be taken during working hours and non working hours. A. Safety Precautions and Programs The Contractor shall be responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the Work in accordance with the U.S. Department of Labor Occupational Safety and Health Act and the laws of the State of Florida. This Contract requires that the Contractor and any and all subcontractors hired by the Contractor comply with all relevant standards of the Occupational Safety and Health Act. Failure to comply with the Act constitutes a failure to perform. The Contractor agrees to reimburse the City for any fines and/or court costs arising from penalties charged to the City for violations of OSHA committed by the Contractor or any and all subcontractors. A -23 B. Safety of Persons and Property The Contractor shall take all reasonable precautions for the safety of, and shall provide all reasonable protection to prevent damage, injury or loss to, all employees on the Work and all other persons who may be affected thereby; all the work materials and equipment to be incorporated therein, whether in storage on or off the project site, under the care, custody or control of the Contractor or any of his subcontractors; and other property on the project site or adjacent thereto, including trees, shrubs, lawns, walks, pavements, roadways, structures and utilities not designated for removal, relocation or replacement in the course of construction. The Contractor shall be held fully responsible for such safety and protection until final written acceptance of the Work. Fire hydrants on or adjacent to the Work shall be kept accessible to fire fighting equipment at all times. Temporary provisions shall be made by the Contractor to insure the proper functioning of all swales, gutters, sewer inlets, drainage ditches and irrigation ditches, which shall not be obstructed except as approved by the City. The Contractor acknowledges that, in executing the Project, it will operate machinery and equipment that may be dangerous to the adjacent property owners and the general public. The Contractor will be required to conduct excavations for the Project that may be hazardous to person and property. The Contractor shall develop and implement a job safety and security plan that will adequately protect all property and the general public. Contractor shall rigorously prohibit the committing of nuisances on the site of the Work, on the lands of the City or an adjacent property. 8.2 TRAFFIC CONTROL All safety precautions, traffic control, and warning devices necessary to protect the public and workmen from hazards within the right -of -way shall be in strict accordance with SECTION 102, MAINTENANCE OF TRAFFIC, in the Florida Dept. of Transportation (FDOT) Std The State of Florida Manual of Traffic Control and Safe Practices for Street and Highway Construction, Maintenance and Utility Operations Specifications for Road and Bridge Construction, latest edition shall be used as minimum standards, as applicable. Further, the Contractor shall carry on the Work in a manner that will cause the least possible obstruction and interruption in traffic, and the least inconvenience to the general public and the residents in the vicinity of the work. 8.3 ROAD CLOSURE AND DETOURS Local traffic shall be maintained within the limits of the Project for the duration of the construction period. Closing to through travel of more than two (2) consecutive blocks, including the cross street intersected will not be permitted without specific authorization of the City. No road or street shall be closed to the public except with the permission of the City and proper governmental authority. When closing of roads is permitted, it shall require forty-eight (48) hours notification to the City. Traffic detours shall be pre- approved prior to closing. "Street Closed to through Traffic" signs and "Detour" routes shall be indicated and maintained by the Contractor when the job is located in a public or private street. A -24 8.4 PROVISION OF ACCESS 8.5 WARNING SIGNS AND BARRICADES Where traffic must cross open trenches, the contractor shall provide adequate ingress and egress to dwellings, business facilities, utilities and service. Temporary provisions shall be made by the Contractor to insure the use of sidewalks. The Contractor shall provide suitable crossings at street intersections and driveways, and supply such aid as may be required for pedestrians and motorists, including delivery vehicles, to safely negotiate the construction areas. On completion of Work within any area, the Contractor shall remove all debris, excess materials, barricades and temporary Work leaving walkways and roads in said area clear of obstructions. The Contractor shall provide adequate signs, barricades, warning lights and flagmen, as required, and all such other necessary precautions for the protection of the Work and the safety of the public. All barricades and obstructions shall be protected at night by regulatory signal lights which shall be kept in operation from sunset to sunrise. Barricades shall be of substantial construction and shall be reflective to increase their visibility at night. Suitable warning signs shall be so placed and illuminated at night as to show in advance where construction, barricades or detours exist. Unless so designated in the Bid Documents, no direct payment for this work will be made, but the cost of providing, erecting and maintaining such protection devices, including guards, watchmen and/or flagmen as required shall be considered as included and paid for in the various contract prices of the Work. Warning signs and barricades shall be in conformance with the State of Florida Manual of Traffic Control and Safe Practices for Street and Highway Construction, Maintenance and Utility Operations, latest edition. The Contractor shall provide and maintain adequate barricades, construction signs, torches, flashers, guards and flagmen as required in pedestrian and vehicular traffic areas. Regulations of local authorities shall be compiled with. Advance warning signs are required on all streets where work is being conducted. Lane closures shall be signed and barricaded or coned as indicated in aforementioned FDOT Index. Flagmen may be required where traffic and length of lane closure warrant them. Where such a plan is needed, Contractor shall submit and obtain approval of their traffic control plan by the City. 8.6 OPEN TRENCHES The Contractor shall fully comply with Florida Statutes and OSHA regulations with regard to open trenches during construction. The Contractor shall be place construction hazard fencing along any open trenches during the construction work -day, and shall leave no open trenches or excavations over -night unless properly fenced and with the specific approval of the Engineer or the City. 8.7 PLACEMENT OF HEAVY EQUIPMENT The Contractor shall not leave construction equipment parked in front of or on a residential lot overnight or on weekends. At the close of work each day, the equipment shall be driven to and stored in a designated area so that the equipment will not become an "attractive nuisance" to neighborhood children. All equipment left unattended during the course of working day, such as during lunch hours or work breaks, shall not be left in a condition or location which would create a safety hazard to the general public. All keys shall be removed from the machines during those times. A -25 8.8 TEMPORARY FACILITIES AND CONTROLS The Contractor shall provide controls for sanitary facilities, environmental protection and safety controls on site acceptable to the Florida Department of Health and Rehabilitative Services, Department of Environmental Protection, and St. Johns River Water Management District. 8.9 SANITARY PROVISION The Contractor shall provide and maintain such sanitary accommodations adequate for the use of his employees and those of his subcontractors, and as may be necessary to comply with the requirements and regulations of the local and state departments of health. Such facilities shall be made available when the first employees arrive on site of the Work, shall be properly secluded from public observation, and shall be constructed and maintained during the progress of the Work in suitable numbers and at such points and in such manner as may be required or approved. The Contractor shall maintain the sanitary facilities in a satisfactory and sanitary condition at all times and shall enforce their use. The City shall have the right to inspect such facilities at all times to determine whether or not they are being properly and adequately maintained. Following the period of necessity for such accommodations, they and all evidence affixed thereto shall be removed. 8.10 WATER AND ELECTRIC SUPPLY The Contractor shall make all necessary applications and arrangements, and pay all fees and charges for water and electrical service necessary for the proper completion of the Project up to the time of final acceptance. The Contractor shall provide and pay for any temporary piping and connections. 8.11 NOISE CONTROL The Contractor shall provide adequate protection against objectionable noise levels caused by the operation of construction equipment, and shall submit a plan to the Engineer for review prior to initiation and implementation of the plan. 8.12 DUST CONTROL The Contractor shall provide for adequate protection against raising objectionable dust clouds caused by moving construction equipment, high winds or any other cause, and shall submit a plan to the Engineer for review prior to initiation and implementation of the plan. 8.13 WATER CONTROL The Contractor shall provide for satisfactory disposal of surplus water and shall submit a plan to the Engineer for review prior to initiation and implementation of the plan. Prior approval shall be obtained from the proper authorities for the use of public or private lands or facilities for such disposal. A -26 8.14 POLLUTION, SILTATION AND EROSION CONTROL The Contractor shall provide for and take sufficient precautions to prevent pollution of private and public lands, reservoirs, ponds, rivers, streams, creeks, etc., by the disposal of surplus materials in the forms of solids, liquids or gases including, but not limited to, fuels, oils bitumen, calcium chloride or other harmful materials. Contractor shall conduct and schedule Work operations so as to avoid or otherwise minimize pollution or silting of streams, lakes and reservoirs and to avoid interference with movement of migratory fish where there is a high potential for erosion and subsequent water pollution. Erosion control features shall be constructed concurrently with other work and at the earliest practicable time. The Contractor shall prepare a detailed description of Contractor's plan for Erosion and Turbidity Control, including location of erosion control and turbidity control devices, marked on a plan set as needed for clarity. The erosion and turbidity control shall meet the requirements of the St. John's River Water Management District and the applicable NPDES program for control of discharge of Total Suspended Matter, and shall prevent water and wind erosion of open excavations and swales. A -27 9.2 ENGINEER'S DECISION 9.3 SUSPENSION OF WORK ARTICLE III Supervision and Administration 9.0 ENGINEER, CITY, CONTRACTOR RELATIONS 9.1 ENGINEER'S RESPONSIBILITY AND AUTHORITY All work done shall be subject to the construction review of the Engineer and City. Any and all technical questions which may arise as to the quality and acceptability of materials furnished, work performed, or work to be performed, interpretation of Plans and Specifications and all technical questions as to the acceptable fulfillment of the Contract on the part of the Contractor shall be referred to the Engineer who will resolve such questions. All claims of a technical nature of the City or Contractor shall be presented to the Engineer for resolution. The City shall have the authority to suspend the Work wholly or in part, for such periods as may be deemed necessary and for whatever cause, to include but not be limited to, unsuitable weather or such other conditions as are considered unfavorable for prosecution of the Work, failure on the part of the Contractor to carry out the provisions of the Contract or to supply materials meeting the requirements of the Specifications, or the action of a governmental agency, by serving written notice of suspension to the Contractor. In the event that the Engineer shall become aware of any condition which may be cause for suspension of the Work, the Engineer shall immediately advise the City of such condition. The Contractor shall not suspend operations under the provisions of this Paragraph without the City's permission. 9.4 CONSTRUCTION REVIEW OF WORK All materials and each part or detail of the Work shall be subject at all times to construction review by the Engineer and the City. The Engineer and the City may appoint inspectors. The Contractor will be held strictly to the true intent of the Specifications in regard to quality of materials, workmanship, and the diligent execution of the Contract. Such construction review may include mill, plant, or shop inspection, and any material furnished under the Specifications is subject to such inspection. The Engineer and the City shall be allowed access to all parts of the Work and shall be furnished with such information and assistance by the Contractor as is required to make a complete and detailed review. The City shall not be responsible for the acts or omissions of the Contractor. 9.5 FIELD TESTS AND PRELIMINARY OPERATION The Contractor shall perform the work of placing in operation all equipment installed under this Contract, except as specifically noted hereinafter. The Contractor shall make adjustments necessary for proper operation. A -28 The Contractor shall provide construction labor required for preliminary operation of the equipment installed under this Contract. The Contractor shall notify the City when work is considered to be complete, in operating condition, and ready for inspection and tests. Further inspection requirements may be designated in the Technical Specifications. The City will conduct tests it deems necessary to determine if the Work functions properly. Arrangements for testing laboratory services will be made by the City. Payment for testing to show compliance with specified requirements will be paid for by the City. The cost of retesting when materials and workmanship fail to meet specified requirements will be deducted from moneys due the Contractor. 9.6 EXAMINATION OF COMPLETED WORK The City may request an examination of completed work of the Contractor at any time before acceptance by the City of the Work and shall remove or uncover such portions of the finished work as may be directed. After examination, the Contractor shall restore said portions of the Work to the standard required by the Specifications. Should the work thus exposed or examined prove acceptable, the uncovering or removing and the replacing of the covering or making good of the parts removed shall be paid for as extra work, but should the work so exposed or examined prove unacceptable, the uncovering, removing and replacing shall be at the Contractor's expense. 9.7 CONTRACTOR'S SUPERINTENDENT A qualified superintendent, who is acceptable to the City, shall be maintained on the project and give sufficient supervision to the Work until its completion. The superintendent shall have full authority to act on behalf of the Contractor, and all communications given to the superintendent shall be considered given to the Contractor. In general, such communications shall be confirmed in writing and always upon written request from the Contractor. 9.8 CITY'S RIGHT TO CORRECT DEFICIENCIES Upon failure of the contractor to perform the work in accordance with the Contract Documents, including any requirements with respect to the Schedule of Completion, and after five (5) days written notice to the Contractor, the City may, without prejudice to any other remedy he may have, correct such deficiencies. The Contractor shall be charged all costs incurred to correct deficiencies. 9.9 CITY'S RIGHT TO TERMINATE CONTRACT AND COMPLETE WORK In the event of any default by the Contractor, the City shall have the right to immediately terminate the Contract upon issuance of written notice of termination to the Contractor stating the cause for such action. This Agreement may be terminated by the City without cause provided at least thirty (30) days written notice of such termination shall be given to the Contractor. In the event of termination, the City may take possession of the Work and of all materials, tools and equipment thereon and may finish the Work by whatever method and means it may select. A -29 It shall be considered a default by the Contractor whenever Contractor shall: (a) Declare bankruptcy, become insolvent or assign his assets for the benefit of his creditors. (b) Disregard or violate the provisions of the Contract Documents or City's written instructions, or fail to prosecute the Work according to the agreed schedule of completion including extensions thereof. (c) Fail to provide a qualified superintendent, competent workmen or subcontractors, or proper materials, or fail to make prompt payment for same. 9.10 RIGHTS OF VARIOUS INTERESTS Wherever work being done by the City's forces or by other contractors is contiguous to work covered by the Contract, the respective rights of the various interests involved shall be established by the City, to secure the completion of the various portions of the Work in general harmony. 9.11 SEPARATE CONTRACTS The City may let other contracts in connection with the Work of the Contractor. The Contractor shall cooperate with other Contractors with regard to storage of materials and execution of their work. It shall be the Contractor's responsibility to inspect all work by other contractors affecting Contractor's work and to report to the City any irregularities that will not permit completion of work in a satisfactory manner. Contractor's failure to notify the City of such irregularities shall indicate the work of other contractors has been satisfactorily completed to receive related work. It shall be the responsibility of the Contractor to inspect the completed work in place and report to the Engineer immediately any difference between completed work by others and the Plans. 9.12 SUBCONTRACTS AND PURCHASE ORDERS Prior to signing the Contract or at the time specified by the City, the Contractor shall submit in writing to the City the names of the subcontractors proposed for the Work. Subcontractors may not be changed except at the request or with the approval of the City. The Contractor is responsible to the City for the acts and omissions of its subcontractors and their direct or indirect employees, to the same extent as he is responsible for the acts and omissions of its employees. The Contract Documents shall not be construed as creating a contractual relation between any subcontractors and the City. The Contractor shall bind every subcontractor by the terms of the Contract Documents. For convenience of reference and to facilitate the letting of contracts and subcontracts, the Specifications are separated into title sections. Such separations shall not, however, operate to make the Engineer or City an arbiter to establish limits to the contracts between the Contractor and subcontractors. 9.13 WORK DURING AN EMERGENCY The Contractor shall perform any work and shall furnish and install materials and equipment necessary during an emergency endangering life or property. In all cases, Contractor shall notify the Engineer and City of the emergency as soon as practicable, but shall not wait for instructions before proceeding to properly protect both life and property. A -30 9.14 ORAL AGREEMENTS No oral order, objection, claim or notice by any party to the others shall affect or modify any of the terms or obligations contained in any of the Contract Documents, and none of the provisions of the Contract Documents shall be held to be waived or modified by reason of any act whatsoever, other than by a definitely agreed waiver or modification thereof in writing, and no evidence shall be introduced in any proceeding of any other waiver or modification. 9.15 NIGHT, SATURDAY AND /OR SUNDAY WORK No night or Saturday and Sunday work will be permitted, except in case of emergency, or with prior approval from City, and then only to such extent as is absolutely necessary to protect life or property. This clause shall not pertain to crews organized to perform restoration work which needs no verifying inspection, maintenance work on equipment, or to operate and maintain special equipment such as dewatering pumps which may be required to work 24 hours per day. All such night, Saturday and/or Sunday work must be authorized by the City. 9.16 UNAUTHORIZED WORK Work done without lines and grades having been established, work done without proper inspection, or any changes made or extra work done without written authority will be done at the Contractor's risk and will be considered unauthorized, and, at the option of the City, may not be measured and paid for. 9.17 USE OF COMPLETED PORTIONS OF THE WORK The City shall have the right to use, occupy, or place into operation any portion of the Work that has been completed sufficiently to permit safe use, occupancy, or operation, as determined by the Engineer. If such use, occupancy, or operation increases the cost of or delays the Work, the Contractor shall be entitled to extra compensation, or an extension of time, or both, as determined by the Engineer. However, if Contractor has failed to complete the Work in accordance with the time requirements of the Agreement, no compensation (including set -offs to liquidated damages) shall be allowed for such use or occupancy. 9.18 CONTRACTOR'S RESPONSIBILITY FOR WORK Until acceptance of the Work by the City, it shall be under the charge and care of the Contractor, and he shall take every necessary precaution against injury or damage to the Work by the action of the elements or from any other cause whatsoever, whether arising from the execution or from the non execution of the Work. The Contractor shall rebuild, repair, restore and make good, without additional compensation, all injury or damage to any portion of the Work occasioned by any cause, other than the sole and active negligence of the City, before its completion and acceptance. A -3I 10.0 MEASUREMENT AND PAYMENT 10.1 DETAILED BREAKDOWN OF CONTRACT Except in cases where unit prices form the basis for payment under the Contract, the Contractor shall submit a complete breakdown of the contract amount showing the value assigned to each part of the Work, including an allowance for profit and overhead within ten (10) days of the execution of the Contract by the parties. Upon approval of the breakdown of the contract amount by the Engineer and the City, it shall be used as the basis for all requests for payment. 10.2 REQUEST FOR PAYMENT The Contractor may submit to the City not more than once each month a request for payment for work completed. Where applicable, the Contractor may choose to submit a request for payment at the substantial completion of each work order. The City may elect to provide its own form for the Contractor to submit progress payment requests. The standard form provided by the City, or a form presented by the Contractor having received prior approval from the City, can be used for the submittal of a progress payment. The Contractor shall furnish the Engineer and the City all reasonable facilities required for obtaining the necessary information relative to the progress and execution of the Work. In addition to each month's invoice, an updated project schedule shall be submitted. Each request for payment shall be computed from the work completed to date on all items listed in the detailed breakdown of the contract amount less previous payments and back charges. Progress payments on account of Unit Price Work will be based on the number of units completed at the time the payment request was dated by the Contractor. If payment is requested on the basis of materials and equipment not incorporated in the project but delivered and suitably stored at the site or at another location agreed to in writing, the payment request shall also be accompanied by a bill of sale, invoice or other documentation warranty that the City has received the materials and equipment free and clear of all liens, charges, security interests and encumbrances, all of which shall be satisfactory to the City. No payments shall be made for materials stored on site without approval of the City. An amount of 10% of each monthly pay request shall be retained until final completion and written acceptance of the Work by the City. Payment of the retainage shall be included in the Contractor's final pay request in accordance with Paragraph 10.14. Any deviation in the release or partial release of the 10% retainage shall be at the sole discretion of the City, but in no case earlier than completion of the Engineer's "punch list inspection Any request for payment shall be accompanied by claim releases for work done or materials furnished in accordance with Paragraph 10.13. Prior to submission of any request for payment by the Contractor, the Engineer shall review the request for payment to determine the following: (a) That the work covered by the request for payment has been completed in accordance with the intent of the Plans and Specifications. (b) That the quantities of work have been completed as stated in the request for payment, whether for a unit price contract or for payment on a lump -sum contract. 10.3 CITY'S ACTION ON A REQUEST FOR PAYMENT Within thirty (30) days from the date of receipt of a request for payment the City shall do one of the following: (a) Approve and pay the request for payment as submitted. (b) Approve and pay such other amount of the request for payment in accordance with Paragraph 10.4 as the City shall decide is due the Contractor, informing the Contractor in writing of the reasons for paying the amended amount. (c) Disapprove the request for payment in accordance with Paragraph 10.4 informing the Contractor in writing of the reasons for withholding payment. 10.4 CITY'S RIGHT TO WITHHOLD PAYMENT OF A REQUEST FOR PAYMENT The City may withhold payment in whole or in part on a request for payment to the extent necessary for any of the following reasons: (a) Work not performed but included in the request for payment, or the contract Price has been reduced by written change order. (b) (c) In the event of a filing of a claim or lien, or information received by City of a potential filing of a claim or lien against the Contractor or City. (d) Failure of the Contractor to make payments to subcontractors, material suppliers or labor. (e) Damage to another contractor. (f) The City has had to correct a defect in the Work, or there are other items entitling the City to a set -off against the amount recommended. (g) Work covered by the request for payment which is not in accordance with the Plans, Specifications and generally accepted construction practices, including if, in the opinion of the City, there is sufficient evidence that the Work has not been satisfactorily completed, or based upon tests and/or inspections the work is defective or has been damaged requiring correction or replacement. Default of any of the provisions of the Contract Documents. 10.5 PAYMENT FOR UNCORRECTED WORK Should the City direct, in writing, the Contractor not to correct work that has been damaged or that was not performed in accordance with the Contract Documents, an equitable deduction from the contract amount shall be made to compensate the City for the uncorrected work. 10.6 PAYMENT FOR REJECTED WORK AND MATERIALS The removal of work and materials rejected under Paragraph 5.3 and the re- execution of work by the Contractor shall be at the expense of the Contractor and the Contractor shall pay the cost of replacing the destroyed or damaged work of other contractors by the removal of the rejected work or materials and the subsequent re- execution of that work. In the event that City incurs expenses related thereto, Contractor shall pay for the same within thirty (30) days after written notice to pay is given by the City. If the Contractor does not pay the expenses of such removal, after ten (10) days written notice being given by the City of its intent to sell the materials, the City may sell the materials and shall pay to the Contractor the net proceeds there from after deducting all the costs and expenses that are incurred by the City. If the proceeds do not cover the expenses incurred by the City, such additional amounts may be set -off against any payments due Contractor. 10.7 CHANGES IN THE WORK A. Change Orders If conditions require a change in the scope of work or additional work varying from the original Plans or Specifications, such change shall be effected by the Contractor when the City issues a written Change Order. The Change Order shall set forth in complete detail the nature of the change, the change in the compensation to be paid the Contractor and whether it is an addition or a reduction of the original total contract cost. Should additional or supplemental drawings be required, they will be furnished by the Engineer. All Change Orders shall address the impact of the change on both Contract Price Cost and Contract Time Schedule. Compensation to be paid to the Contractor for accomplishing the work of a Change Order shall be established in one of the following ways: (a) By lump sum proposed by the Contractor and accepted by the City. (b) By unit prices established and agreed to. (c) By unit prices established for additional kinds of work. (d) By other methods as may be mutually agreed upon. (e) By force account wherein the Contractor provides the labor and materials at Contractor's direct cost plus 15% for overhead and profit. When the force account method is used, the Contractor shall provide full and complete records of all costs for review by the City. A -34 B. Claims Claims arising from changes or revisions made by the Contractor at the City's request shall be presented to the City before work starts on the changes or revisions. If the Contractor deems that extra compensation is due for work not covered herein, or in Supplemental Agreement, the Contractor shall notify the City in writing of its intention to make claim for extra compensation before work begins on which the claim is based. If such notification is not given and the City is not afforded by the Contractor a method acceptable to the City for keeping strict account of actual cost, then the Contractor hereby waives its request for such extra compensation. The City is not obligated to pay the Contractor if the City is not notified as described above. The Contractor may refuse to perform additional work requested by the City until an appropriate agreement is executed by the parties. Such notice by the Contractor and the fact that the City has kept account of the costs as aforesaid shall not in any way be construed as proving the validity of the claim. 10.8 CANCELED ITEMS OF WORK The City shall have the right to cancel those portions of the contract relating to the construction of any item provided therein. Such cancellation, when ordered by the City in writing, shall entitle the Contractor to the payment of a fair and equitable amount covering all costs incurred by Contractor pertaining to the canceled items before the date of cancellation or suspension of the Work. The Contractor shall be allowed a profit percentage on the materials used and on construction work actually done, at the same rates as provided for "Changes in the Work but no allowance will be made for anticipated profits. Acceptable materials ordered by the Contractor or delivered on the site before the date of such cancellation or suspension shall be purchased from the Contractor by the City at actual cost and shall thereupon become the property of the City. 10.9 PAYMENT FOR WORK SUSPENDED BY THE CITY If the Work or any part thereof shall be suspended by the City as provided in Paragraph 9.3, the Contractor will then be entitled to payment for all work done except as provided in Paragraph 10.4. 10.10 PAYMENT FOR WORK BY THE CITY The cost of the work performed by the City removing construction materials, equipment, tools and supplies in accordance with Paragraph 5.7 and in correcting deficiencies in accordance with Paragraph 9.8 shall be paid by the Contractor. 10.11 PAYMENT FOR WORK BY CITY FOLLOWING TERMINATION OF CONTRACT A. Termination by City for Cause Upon termination of the contract by the City for cause, including abandonment or termination by Contractor, the City may enter into an agreement with others for the completion of the Work under this Agreement and the Contractor shall be held harmless for the work of others. No further payments shall be due the Contractor until the Work is completed and accepted by the City. If the unpaid balance of the contract amount shall exceed the cost of completing the Work including all overhead costs, Contractor shall be paid up to the amount of the excess balance on a quantum meruit basis for the work done prior to termination. If the cost of completing the Work shall exceed the unpaid balance, the Contractor or its A -35 Surety shall pay the difference to the City. The cost incurred by the City as herein provided shall include the cost of the replacement contractor and other expenses incurred by the City through the Contractor's default. In either event, all work done, tracings, plans, specifications, maps, computer programs and data prepared by the Contractor under this Agreement shall be considered property of the City. B. Termination by City Without Cause In the event the City without cause abandons, terminates or suspends this Agreement, the Contractor shall be compensated for services rendered up to the time of such termination on a quantum meruit basis and any work done or documents generated by the Contractor shall remain the property of the City. 10.12 TERMINATION OF CONTRACTOR'S RESPONSIBILITY The Contract will be considered complete when all work has been finished, the final construction review is made by the Engineer, and the project accepted in writing by the City. 10.13 RELEASE OF CLAIMS (INTERIM/FINAL) The Contractor shall deliver, with each request for payment, a completed Affidavit and Release of Claim on a form supplied by the City. Also, from each supplier or subcontractor who has notified the City of his right to file a Claim (Notice to City) or who is listed in the Contractor's Affidavit and Release of Claim as an unpaid, potential Claimant, a Claimant's Sworn Statement of Account, executed by the supplier or subcontractor, must be attached to each request for payment. If the completed forms are not supplied with the request for payment, the City will notify Contractor of the outstanding claims of record and, if said completed form(s) are not supplied within thirty (30) days, the City shall make joint payments to the Contractor and outstanding claimants. 10.14 ACCEPTANCE AND FINAL PAYMENT When it is determined, as a result of a joint inspection of the Work by the Contractor, City, and Engineer that the Work has been completed in accordance with the terms of the Contract Documents, the Engineer shall certify completion of the Work to the City. At that time, the Contractor may submit the Contractor's final request for payment. The Contractor's final request for payment shall be the contract amount plus all approved written additions less all approved written deductions and less previous payments made. As a condition for Final payment, a Contractor's Final Affidavit must be received by the City along with his Final Payment Request and any as -built drawings which may be required. The Contractor shall furnish full and fmal releases of Claim for labor, materials and equipment incurred in connection with the Work, following which the City will release the Contractor except as to the conditions of the performance bond, any legal rights of the City, required guarantees and satisfaction of all warranty work, and shall authorize payment of the Contractor's final request for payment. 10.15 SATISFACTION OF WARRANTY WORK AFTER FINAL PAYMENT The making of the fmal payment by the City to the Contractor shall not relieve the Contractor of responsibility for faulty materials or workmanship. The City shall promptly give notice of faulty A -36 materials and workmanship and the Contractor shall promptly replace any such defects discovered within one (1) year from the date of final written acceptance of the Work by the City. 11.0 PUBLIC CONTRACT REQUIREMENTS 11.1 COVENANT AGAINST CONTINGENT FEES The Contractor warrants that it has not employed or retained any company or person, other than a bona fide employee working solely for the Contractor, to solicit or secure this Agreement and that it has not paid or agreed to pay any person, company, corporation, individual or firm, other than a bona fide employee working solely for the Contractor, any fee, commission, percentage, gift or any other consideration contingent upon or resulting from the award or making of this Agreement. For the breach or violation of this paragraph, the City shall have the right to terminate the Agreement without liability and, at its discretion, deduct from the Agreement price, or otherwise recover, the full amount of such fee, commission, percentage, gift or consideration. 11.2 INTEREST OF MEMBERS OF CITY AND OTHERS No officers, members or employees of the City and no member of its governing body, and no other public official of the governing body of the locality or localities in which services for the facilities are situated or carried out, who exercises any functions or responsibilities in the review or approval of the undertaking or carrying out of this project, shall participate in any decision relating to this Agreement which affects such person's personal interest, or have any personal or pecuniary interest, direct or indirect, in this Agreement or the proceeds thereof. 11.3 CERTIFICATION OF RESTRICTIONS ON LOBBYING The Contractor agrees that no Federal appropriated funds have been paid or will be paid by or on behalf of the Contractor to any person for influencing or attempting to influence any officer or employee of any Federal agency, a member of Congress, an officer or employee of Congress or an employee of a member of Congress in connection with the awarding of any Federal contract, the making of any Federal Grant, the making of any Federal loan, the entering into of any cooperative agreement and the extension, continuation, renewal, amendment or modification of any Federal contract, Grant, loan or cooperative agreement. If any funds other than Federal appropriated funds have been paid by the Contractor to any person for influencing or attempting to influence an officer or employee of any Federal agency, a member of Congress, an officer or employee of Congress or an employee of a member of Congress in connection with this Agreement, the undersigned shall complete and submit Standard Form- "Disclosure Form to Report Lobbying" in accordance with its instructions. 11.4 INTEREST OF CONTRACTOR The Contractor covenants that he presently has no interest and shall not acquire any interest, direct or indirect, which shall conflict in any manner or degree with the performance of services required to be performed under this Agreement. The Contractor further covenants that in the performance of this Agreement, no person having any such interest shall be employed. The Contractor shall not undertake A -37 any professional work which conflicts with its duties as the City's Contractor without the prior written consent of the City during the term of this Agreement. Any work where the Contractor can reasonably anticipate that it may be called to testify as a witness against the City in any litigation or administrative proceeding will constitute a conflict of interest under this Agreement. 11.5 PUBLIC ENTITY CRIMES The Contractor shall file the attached sworn statement which is entitled PUBLIC ENTITY CRIMES, stating whether a person or affiliate as defined in Section 287.133 (1) Florida Statutes, has been convicted of a public entity crime subsequent to July 1, 1989, in accordance with the provisions of said statute. 11.6 DRUG -FREE WORKPLACE The Agreement documents also include the "Drug -Free Workplace Form" which is in accordance with Florida Statute 287.089 and must be signed and instituted. 11.7 COMPLIANCE WITH LAWS Contractor shall comply with all applicable federal laws that in any way regulate or impact the Work, including, but not limited to, The Clean Air Act (42 USC §7506(c)), The Endangered Species Act (16 USC §1531, et seq.), Executive Order No. 11593, Executive Order No. 11988, Executive Order No. 11990, The Fish and Wildlife Coordination Act (PL 85 -624), The Safe Water Drinking Act Section 1424(e) (PL 93 -523, as amended), The Wild and Scenic Rivers Act (PL 90 -542, as amended), The Demonstration Cities and Metropolitan Development Act of 1966 (PL 89 -754), Section 306 of The Clean Air Act, Section 508 of The Clean Water Act, Executive Order No. 11738, The Civil Rights Act of 1964 (PL 88 -352), The Age Discrimination Act (PL 94 -135), Section 13 of The Federal Water Pollution Control Act (PL 92 -500), Executive Order No. 11246, Executive Order No. 11625, Executive Order No. 12138, Executive Order No. 12549, The Davis Bacon Act (40 USC §276), the Occupational Safety and Health Act and applicable regulations, and the Americans with Disabilities Act (PL 101 -336). 11.8 INSURANCE The Contractor agrees to carry insurance, of the types and subject to the limits as set forth below and maintain said insurance during the life of this agreement: (a) Workers' Compensation Contractor shall purchase workers' compensation insurance as required by law. (b) Commercial General Liability Contractor shall purchase Commercial General Liability insurance with a combined single limit of at least $1,000,000. (c) Commercial Auto Liability Contractor shall purchase Commercial Auto Liability insurance with a combined single limit of at least $1,000,000. Further, Contractor shall maintain such insurance as is reasonably required to satisfy its obligations under Paragraph 9.18 for the Work paid for by the City but not yet accepted. A -38 The insurance company selected shall be A+ or better per the Best's Key Rating Guide. The Contractor and the insurance company(s) shall agree to furnish the City thirty (30) days written notice of their intent to cancel or terminate said insurance. It is the full responsibility of the contractor to insure that all sub- contractors have full insurance coverage as stated above. The Contractor shall not commence the Work under this contract until Contractor has obtained all the insurance required under this paragraph and certificates of such insurance have been submitted to the City, nor shall the Contractor allow any subcontractor to commence work on a subcontract until all insurance required has been so obtained and approved by the City. The Contractor shall carry and maintain until acceptance of the Work, insurance as specified herein and in such form as shall protect Contractor and any subcontractor performing work under this Contract, or the City, from all claims and liability for damages for bodily injury, including accidental death, under this Contract, whether by Contractor or by any subcontractor or by any one directly or indirectly employed by either of them. The Contractor shall furnish to the City certificates of insurance in duplicate showing proof of insurance, naming the City as an additional insured party, prior to the start of construction as provided in the Contract. 11.9 BOND The Contractor shall provide Bonds in the form prescribed by State Law, and generally as shown in these Documents, for Performance and Payment, each in the amount of 100% of the total contract amount. 11.10 PERMITS All City and St. John's River Water Management District permits and other permits necessary for the prosecution of the Work shall be secured by the City, except for Contractor's licenses and registrations, and dewatering permits that may be required by St. Johns River Water Management District (SJRWMD). Contractor shall secure a building permit if required by the City's Building Official. 11.11 LAWS TO BE OBSERVED The Contractor shall give all notices and comply with all federal, state and local laws, ordinances, permit requirements and regulations in any manner affecting the conduct of the Work, and all such orders and decrees as enacted by bodies or tribunals having any jurisdiction or authority over the Work, and shall indemnify and save harmless the City and Engineer against any expense, claim or liability arising from, or based on, the violation of any such law, ordinance, regulation, permit requirements, order or decree, whether by Contractor or its employees. The failure of the Contractor to adhere to any known law or regulation pertaining to furnishing services under this Agreement shall constitute a material breach of this Agreement. The Contractor shall keep fully informed of all existing and pending state and national laws and municipal ordinances and regulations in any manner affecting those engaged or employed in the Work, or in any way affecting the conduct of tribunals having any jurisdiction or authority over the same. If any discrepancy or inconsistency is discovered in the Plans, Specifications, or Contract for this work in relation to any such law, ordinance, regulations, order or decree, Contractor shall forthwith report the same to the Engineer and City in writing. Contractor shall at all times himself observe and comply with and cause all its agents, subcontractors and employees to observe and comply with decrees; and shall A -39 protect and indemnify the City and Engineer, their officers, employees and agents against any expense, claim or liability arising from or based upon violation of any such law, ordinance, regulations, orders or decree, whether by Contractor or its employees. All building construction work alterations, repairs or mechanical installations and appliances connected therewith shall comply with the applicable building rules and regulations, restrictions and reservations of record, local ordinances and such other statutory provisions pertaining to this class of work. 12.0 MISCELLANEOUS 12.1 ADDRESSES FOR NOTICES All notices given under or in connection with any of the Contract Documents shall be delivered in person or by telegraph or email (confirmed) or registered or certified mail to the parties at the address as either party may by notice designate. 12.2 WRITTEN NOTICE Written notice shall be considered as served when delivered to the designated representative of the Contractor and receipt acknowledged or sent by registered mail to the individual, firm, or corporation to the business address stated in Bid Proposal. Change of Address: It shall be the duty of each party to advise the other parties to the Contract as to any changes in his business address until completion of the Contract. 12.3 TAXES Contractor shall pay all sales or other taxes of any type which may be incurred in connection with the Work hereunder, and shall reimburse the City for any such taxes paid by the City. 12.4 TIME IS OF VITAL IMPORTANCE It is agreed and understood that time is of vital importance with respect to the completion date for the Work and all other provisions of the Contract Documents. 12.5 NO WAIVER OF LEGAL RIGHTS Neither the payment for, nor acceptance of the whole or any part of the Work by the City or representatives of the City, nor any extension of time, nor the withholding of payments, nor any possession taken by the City, nor the termination of employment of the Contractor shall operate as a waiver of any portion of the Contract or any power therein reserved or any right therein reserved or any right therein provided, nor shall the waiver by the City of any of the Contractor's obligations or duties under this Agreement constitute a waiver of any other obligation or duty of the Contractor under this Agreement. A-40 12.6 RIGHT TO WORK PRODUCT No reports, data, programs or other material produced in whole or in part under this Agreement shall be subject to copyright by the Contractor, in the United States or in any other country. The City or its assigns shall have the unrestricted authority to publish, disclose, distribute and otherwise use, in whole or in part, any reports, data, programs or other material prepared under this Agreement. All tracings, plans, specifications, maps, computer programs and data prepared or obtained under this Agreement shall remain the property of the City. Any use of any plans and specifications by the City except the use reasonably contemplated by the City at the time the City zntered this Agreement will be at the City's risk and Contractor, its officers, directors and employees, will be held harmless from such use. A-41 IN WITNESS WHEREOF, the parties hereto have caused these presents to be executed, the day and year first above written. ATTEST: Sally A. Maio MMC (SEAL) Approved as to Form and Content for: Reliance by the City of Sebastian Only Robert Ginsburg, City Attorney Signed, sealed and delivered in the presence of: NAME: NAME: CONTRACTOR A-42 THE CITY OF SEBASTIAN By: Name: Al Minner Title: City Manager By: Name: Title: Al, Alfred Minner Therefore, it is good to go. Frank Watanabe Neel- Schaffer, Inc. (772) 770 -4707 From: Frank Watanabe frank .watanabe @neel- schaffer.com] Sent: Tuesday, September 15, 2009 3:25 PM To: Alfred Minner Cc: Jerry Converse Subject: George St Bid 1 1.1.5%./ 1 V1 1 Per our meeting this morning regarding the review of the George St Drainage bids, the lowest bid from Sunshine Land Design is ok. After reviewing the four lowest bids, there appears to be differences is some of the bid items, but that is expected between bidders. Overall, we see no major errors in the lowest bid estimate of $77,876.75 from Sunshine Design. co W N N GEORGE STREET $2,600.00 $1,200.00 $1 Finn nn $528.00 $1,275.00 $360.00 $340.00 5t1 FFn nn 00000 51.$ CJ 00'000.£1.$ $0.00 $180.00 o oo 0 N p r_r is fA N. 0 is HENRY FISCHER SONS LEASING, INC. 00'091.'31 1 $1,800.00 $600.00 $6.275.00 $192.00 $2,099.50 $540.00 $2,449.20 $2,099.30 $118.70 $24,640.00 41 $24.600.00 00'009'3 00'02'81.$ 00 00 01 00'09L$ $950.00 $1,400.00 $800.00 $92,009.70 00'005'£$ 00'000'5$ 00'99L$ 00 00 00'001$ $1,080.00 $780.00 $3,110.00 $142.50 $25,200.00 $12,000.00 00 "050' l$ 00 00'00£$ 00 00 l$ 00'005' l$ 0rcteZ'08$ 00'00Z' l$ 00'000 00'091$ GREGORI CONSTRUCTION AND ENGINEERING INC. 00• 05L$I $1,250.00 $4,650.00 $8,000.00 00'9Z I. 'Z$ 00'09$ $540.00 $468.00 $2,488.00 1$190.00 $35,280.00 $20,400.00 00 00'098'6$ 00'SZ5$ 00 00'00L'1.$ 00'000'1.$ $200.00 Other Items $400.00 $91,466.00 •DAII'1Iflsaa 1111NV'I atslIHsNlas 00'009'1$ $3,530.00 $3,500.00 $2,500.00 $600.00 $510.00 $180.00 $780.00 $1,800.07 l$285.00 $24,131.40 $16,591.20 J $6,413.58) 1 00'051.$ 00'6£8`1.$ s S 'I S'I S 'I di 3Z da L) da 3Z da 1AS S'I '1iia Item #1 cil~;NERRAL ?RIOMH diva z# won P ►a' Clearing and Grubbing Fill (Subgrade to Pipe Ditch) I Bid Item #3 PAVING /GRADING rind u acing Install AC for Roadway Transition 5' Feather (1.5" Depth) Install Concrete Cap 10" Depth (b /w pipe and roadway) 'Bid Item #4 DRAINAGE C i 1 mstau silt rence Install 43" x 68" ERCP Install 52" x 77" CMP i i &I^ID ..LL x „ZS -um SDUBA irmsu f i 1 (.LI x .L) xog uotiounr truisu i install rteaawaii tor 2 (43" x 68" ERCP) Install 18" CMP Pipe Extension Bid Item #5 LANDSCAPE i 1 sum paQ.misWD ITE DOQI 'Additional Items Per Addendum #1 Install Rip Rap rock 1 i install tirade Opening (Junction Box) Install Mitered End Sections (FDOT Index 272) Install 18" ADS Pipe Total co W N N GEORGE STREET I Subject: NationAir Airport Lease Agreement Ap rovi. or Submittal by: A/4 ,r ne r, City Manager HOME OF PEUCAN 'BLAND AGENDA TRANSMITTAL Exhibits: Airport Lease w/ Schedules A' REQUIRED: -0- Agenda No. 0 t '4 L Department Orig J. Griffin Finance Dire ¶r: en 'llgor City Clerk: Sally Maio City Attorney: Robert Ginsbur Date Submitted: September 16, 2009 For Agenda of: September 23, 2009 EXPENDITURE AMOUNT BUDGETED: APPROPRIATION -0- REQUIRED: -0- SUMMARY In mid -2008, airport staff began cultivating a business relationship with an aviation insurance company, NationAir Insurance Group. NationAir is a nationally recognized aviation insurance provider with corporate headquarters in West Chicago, IL. A Southeast U.S. Regional office is located in Melbourne, FL. The Melbourne principal of the firm is Mr. Peter Torell. NationAir, through Mr. Torell has applied for a lease at the Sebastian Airport Administration Building. If approved by council, NationAir would move their operation from its Melbourne, FL location to Sebastian. Currently, NationAir employs seven (7) individuals at its Melbourne location. If approved, NationAir would lease the office space currently occupied by airport administration (AP wing). The lease would also include a small room in the lobby area (known as the "mail room and a tie -down space on the admin. building `ramp.' The lease rate for the total space would be $8.50. Term of the lease is for five (5) years with an option for an additional three (3) years with agreement by the City of Sebastian. Contingencies in the lease provide for some drywall work in the `executive' office of the AP wing and the installation of Comcast Hi -Speed service to the building. The City /Airport has an agreement in place with Comcast for service installation to the building. Estimate for completion of that installation is 15 October 2009. RECOMMENDED ACTION Move to approve lease between the City of Sebastian and NationAir Insurance Group. a MUNICIPAL AIRPORT AIRPORT LEASE THIS LEASE, made and entered into this 1 day of October, 2009, by and between the CITY OF SEBASTIAN, a municipal corporation existing under the laws of the State of Florida, (hereinafter referred to as the "Landlord and NationAir Aviation Insurance Group (hereinafter referred to as "Tenant The Landlord and the Tenant are sometimes collectively referred to herein as the "parties This document contains eighteen (18) pages, plus Schedule Page(s) "A" and `B." WITNESSETH:. WHEREAS, the Landlord is the owner of certain property located in the County of Indian River County, Florida; and WHEREAS, the certain property is being used for the operation of the Sebastian Municipal Airport (hereinafter referred to as the "Airport"); and WHEREAS, the certain property is also available for use for those activities consistent with or in support of aviation activity; and WHEREAS, the Landlord has agreed to lease such property to the Tenant subject to certain terms and conditions consistent with, or in support of, the current aviation use of such property; and WHEREAS, the Tenant desires to lease the said property from the Landlord, and to that end and in consideration of the premises, and the covenants, terms and conditions to be performed as set forth hereinafter; and 2 NOW, THEREFORE, in consideration of the mutual covenants hereinafter provided, the receipt and sufficiency of which are hereby acknowledged, the parties have agreed as follows: 1. RECITALS. The stated recitals are hereby incorporated by reference in this Lease Agreement. 2. LEASED PREMISES. Subject to the terms and conditions set forth hereinafter, and in accordance with the Principal Guiding Documents for Sebastian Municipal Airport (to include future amendments, changes, and deletions), the Landlord hereby leases to the Tenant and the Tenant hereby rents from the Landlord that portion of the real property of the Landlord which is described more particularly on Schedule "A" affixed hereto and made a part hereof by reference (hereafter referred to as the "leased premises A In the event that any portion of the Leased Premises A is needed for actual improvements to the Airport, any portion thereof rendered unusable to Tenant shall be released from this lease and the rental payments adjusted accordingly. Pending approval of the underlying lease by the City Council of the City Of Sebastian, it is understood that Tenant shall have access to the leased premises on November 1, 2009 for the purposes of configuration and `move -in' functions. It is understood that Tenant's start date for rent payments on the leased premises is December 1, 2009. Tenant agrees to `hold harmless' the City Of Sebastian for any /all claims, liability, and damages resulting from activities by Tenant. 3. TERM OF LEASE. The term of this Lease shall be for a period of FIVE (5) years commencing December 1, 2009, and will end on the fifth (5 anniversary of such date. The Tenant shall have the option to extend the lease for a period of THREE (3) years with agreement by the City Of Sebastian. Notice of intent to exercise said option by Tenant must be received by Landlord no later than six (6) months prior to the expiration of the underlying lease. As stated in paragraph 2, Tenant shall have authorization to move into the leased space on November 1, 2009, however, any lease charges will begin to run on December 1, 2009. Other lease provisions will apply for the period November 1, 2009 through December 1, 2009 including provisions for utility charges and hold harmless provisions. 4. RENT. The parties agree that the rent, payable by the Tenant, during the term of this Lease shall be as follows: (a) For the leased premises "A" and `B 1576 sq ft $8.50 /year. Total: $13,396 per year payable in quarterly installments. The parties recognize that the purchasing power of the United States dollar is evidenced by the United States Department of Labor, Bureau of Labor Statistics, Index of Consumer Prices. In January, 2010, the Landlord will compare the most recent price index with the base price index for 2009, and the yearly rent amount shall be increased based upon changes in the price index, if appropriate, on February 1, 2010. Another such adjustment shall be undertaken for February 1, 2011, and every year thereafter until the expiration date of the lease, including the option period if applicable. In no event, however, shall the yearly rent decrease below the sum of $13,396. (b) Time of the essence. The Tenant agrees promptly to perform, comply with and abide by this Lease, and agrees that timely payment is of the very nature and essence hereof. In the event that any rental payment due hereunder shall not be paid within five days of when due, Tenant shall pay Landlord a late payment fee of 5% of the amount of such late Rental Payment. This charge shall be considered additional rent and not interest. (c) Default in rent. If any of said sums of money herein, required to be paid by the Tenant to the Landlord, shall remain unpaid ten (10) days after written demand by Landlord, then the Landlord shall have the options and privileges as follows: (1) Total acceleration. To accelerate the maturity of the rent installments for the balance of the term. This option shall be exercised by an instrument in writing signed by the Landlord, or its agent(s), and transmitted to the Tenant notifying him of the intention of the Landlord to declare all unmatured rent installments presently due and payable. (2) Partial acceleration. In lieu of the option in sub paragraph (1) above, the Landlord may, in like manner, declare as presently due and payable the unpaid rent installments for such a period of years as may be fixed in the Landlord's said notice to the Tenant. The exercise of this option shall not be construed as a splitting of a cause of action, nor shall it alter or affect the obligations of the Tenant to pay rent under the terms of this Lease for the period unaffected by said notice. (3) Other remedies. In addition to the option herein granted above, the Landlord may exercise any and all other options available to it hereunder or under law, which options may be exercised concurrently or separately with the exercise of the above options. (d) Default in provisions. If the Tenant shall default in the performance of any other term of this Lease (except the payment of rent), the Landlord, or its agent or employee, shall send to the Tenant a written notice of default, specifying the nature of the default, and the Tenant shall, within thirty (30) days after the date of said notice, cure and remedy said default, whereupon this Lease shall continue as before. If the Tenant shall fail to cure and remedy such default within said time, the Landlord shall have the right to declare, by written notice to the Tenant, that the Lease is in default, and to use all remedies available to the Landlord hereunder or under law, including, but not limited to, those remedies, procedures and rights specified in the other paragraphs of this Lease. (e) In addition to the rental amount, the Tenant shall pay Florida sales tax, if applicable. (f) The above rental for the leased premises shall be payable in advance, in quarterly installments, commencing on January 1, 2009. Payments for November 2009 and December 2009 shall be due on November 1, 2009. Rental payments for leased premises as described in Section 3 will then be due on a like day of every quarter thereafter during the term of this Lease. 5. IMPROVEMENTS TO THE PREMISES. The Landlord acknowledges that the Tenant is leasing the premises for the primary purpose of the operation of Tenant's insurance business. In order to utilize the leased premises for this purpose, it may be necessary to use improvements previously constructed upon the leased premises. Tenant acknowledges that these improvements are owned by Landlord. (a) The Tenant shall have the right to use the leased premises for any lawful purpose described in Section 6 hereof, and shall have the right to construct improvements upon the leased premises, provided any such improvements do not in any way curtail the use of the airport facilities in their usual operations and provided further that any such improvements are approved, in writing, by the City of Sebastian prior to commencement of any construction. The Tenant covenants and agrees that all such construction shall be in accordance with the local and state codes, regulations and requirements as well as in accordance with all requirements of the Federal Aviation Administration (FAA) and the Florida Department of Transportation (FDOT). (b) The Tenant shall indemnify, defend and hold the Landlord harmless from any claims, losses, damages or liens arising out of the construction of any such improvements. (c) All improvements and fixtures of every kind now or hereafter erected or placed on the leased premises shall, at the end of the term or earlier termination of this Lease, for any reason, be and become the property of the Landlord and shall be left in good condition and repair, ordinary wear and damage by the elements excepted. In order to confirm sole ownership in the Landlord, the Tenant shall, at Landlord's request, execute any and all documents of transfer which Landlord deems necessary to perfect title to said improvements. The Tenant agrees that all improvements shall, upon the termination of this Lease for any reason, be free and clear of all 5 CO/ encumbrances, liens, and title defects of any kind. A fixture shall be defined as an article which was a chattel, but which, by being physically annexed or affixed to the realty by the Tenant and incapable of being removed without structural or functional damage to the realty, becomes a part and parcel of it. Non fixture personalty owned by the Tenant at the expiration of the term or earlier termination of this Lease, for any reason, shall continue to be owned by Tenant and, at its option, may remove all such personalty, provided the Tenant is not then in default of any covenant or condition of this Lease, otherwise all such property shall remain on the leased premises until the damages suffered by the Landlord from any such default have been ascertained and compensated. Any damage to the leased premises caused by the removal by Tenant of any such personalty shall be repaired by Tenant forthwith at Tenant's expense. 6. USE OF LEASED PREMISES. The Tenant agrees that no use of the leased premises will be conducted in such a manner as to constitute a nuisance or a hazard and that, in connection with the use of the leased premises, the Tenant will observe and comply with all applicable laws, ordinances, orders and regulations prescribed by lawful authorities having jurisdiction over the leased premises. Tenant will abide by the Principal Guiding Documents for Sebastian Municipal Airport (to include future amendments, changes, and deletions). Tenant agrees that the leased premises shall be used by the Tenant for the purpose of the operation of an aviation insurance business. No other use may be conducted by the Tenant without the express written consent of the Landlord. Such consent may be withheld by the Landlord for any reason. All aeronautical businesses and activities must be certified and licensed by appropriate agencies, including the FAA, in the appropriate categories of their specific operation. 7. REPAIRS AND ALTERATIONS. The Landlord shall not be obligated to maintain or repair the leased premises or any improvements located thereon or any part thereof during the lease term or any renewal thereof. The Tenant agrees, at its sole cost and expense, to maintain all of the leased premises. The Tenant shall keep the leased premises in a good state of maintenance and repair and keep the leased premises in a 6 clean, neat and orderly condition in accordance with local ordinances, including but not limited to, the Sebastian Land Development Code and all other community standards ordinances. It is an express condition of this Lease that the leased premises are kept in an attractive manner at all times. Upon obtaining the prior written consent of the Landlord, which consent may be withheld for any reason, the Tenant, at its sole cost and expense, may erect such additional improvements on the leased premises as it deems appropriate and may make such alterations or major renovations to the existing improvements as it deems appropriate, provided, however, that such alterations or renovations shall not disturb the structural integrity of such existing improvements, and provided that the alterations or renovations shall comply with all applicable governmental regulations. The Tenant shall indemnify, defend and hold the Landlord harmless from any claims, losses, damages or liens arising out of or in any way connected with such additions or renovations. 8. UTILITIES. The Tenant shall be responsible for all costs of electricity, lights, water, sewer, heat, phone, TV, internet, or any other utility or service consumed in connection with the leased premises. Relating to leased premises `A', utility charges shall be assessed to Tenant by Landlord on a prorated basis according to the Tenant square foot usage. Relating to leased premises `B', there shall be no utility charges. It is understood that the Landlord shall have no liability for the failure to procure, or the interruption of, any such services or utilities. 9. SIGNS. The Tenant shall have the right to erect and maintain such sign or signs on the premises as may be permitted by applicable law; provided, however, the Landlord must approve any such signs in writing prior to erection. The Landlord may impose any reasonable restrictions as, in the sole discretion of the Landlord, are deemed necessary. 10. TAXES. The Tenant shall pay during the Lease term all ad valorem taxes, assessments or any other governmental charge levied or assessed against the leased premises (including the Tenant's leasehold by the appropriate governmental authorities), together with all ad valorem taxes assessment or other governmental charge levied against any stock of merchandise, furniture, furnishings, equipment and other property located in, or upon the leased premises. All shall be paid by the Tenant on a timely basis and receipts therefore shall be provided to the Landlord upon request. 11. LIABILITY INSURANCE. The Tenant shall provide and keep in force, at its own expense, during the term of this Lease, comprehensive public liability insurance coverage with respect to the contents of the leased premises. Landlord shall insure the buildings occupied by Tenant. The insurance coverage to be maintained by the Tenant shall contain limits of: (a) Bodily Injury and Property Damage $1,000,000 Combined Single Limits (b) Products and Completed Operations Liability (if applicable) $1,000,000 Combined Single Limit. (c) Aircraft Liability $1,000,000 Bodily Injury and Property Damage Combined Single Limit. (d) Insurance in the full replacement value of all Personal Property, Equipment, and Trade Fixtures on the Leased Premises. (e) Ground and Hangar Keeper's Liability (if applicable) adequate coverage for any single aircraft in storage or care and a limit covering the total value of those aircraft but not less than $100,000 for damage to any one (1) aircraft and $500,000 per each occurrence. (f) Chemical Liability Insurance (if applicable) minimum of $400,000 Combined Single Limit. (g) For aircraft Fueling Operations (if applicable)- a Comprehensive Aircraft Liability policy indicating that the coverage includes owner's fueling/defueling operations with fueling equipment owned and/or operated by the Tenant. The minimum shall be $1,000,000 Combined Single Limit for Bodily Injury and Property Damage. (h) Automobile Liability Insurance: (1) Each service provider operating one or more motor vehicles on the City's premises in the performance of their work shall purchase and maintain Automobile Liability Insurance with policy limits of not less than $300,000 Combined Single Limit (2) Service Providers having unescorted access to the AOA at the Sebastian Municipal Airport shall purchase and maintain Automobile Liability Insurance with policy limits of not less than $1,000,000 Combined Single Limit. (a) Builder's Risk (if applicable)- during any construction on a leased site, the service provider shall furnish Builder's Risk Insurance insuring the contract price, with the City listed as the named insured. Any deductibles under the builder's risk policy shall be the responsibility of the service provider. (b) Workers' Compensation Insurance: as required by Florida Statutes. 8 9 Tenant agrees that, should there be an expansion of the use or occupancy beyond the primary use set forth herein, Landlord may alter the minimum amounts stated in the preceding section during the term of this Lease by addendum or change in the Principal Guiding Documents for Sebastian Municipal Airport (to include future amendments, changes, and deletions). Landlord will give written notice of any such change to Tenant, and such changes will take effect immediately. Any policy or policies of insurance required pursuant to this Lease shall be issued by one or more insurance companies authorized to engage in business in the State of Florida. The Tenant shall supply the Landlord with a certificate of such insurance with evidence of the payment of the premium thereon. All policies described in this paragraph/section shall contain a clause preventing cancellation of any coverage before thirty (30) days written notice to the Landlord and shall name the Landlord as an additional insured. Upon the request of the Landlord, the Tenant shall provide copies of said policies to the Landlord. 12. PROPERTY, FIRE AND EXTENDED COVERAGE INSURANCE. The Tenant shall, at its sole cost and expense, procure and keep in effect such standard policies of property casualty, fire and extended coverage insurance as the Landlord deems necessary and appropriate. Upon request, the Tenant shall provide to the Landlord a certificate of such insurance with evidence of the payment of the premium therefore. The Landlord shall have no obligation to keep the leased premises contents insured nor shall the Landlord have any obligation to insure any personal property used in connection with the leased premises. Any policy or policies of insurance required pursuant to this Lease shall be issued by one or more insurance companies authorized to engage in business in the State of Florida. All policies described in this Paragraph shall contain a clause preventing cancellation of any coverage before thirty (30) days written notice to the Landlord and shall name the Landlord as an additional insured. Upon the request of the Landlord, the Tenant shall provide copies of said policies to the Landlord. In the event that the Tenant's use and occupancy of the premises causes any increase in the premium for any property casualty or fire insurance maintained by Landlord on the Leased Premises or any portion thereof, Tenant shall reimburse Landlord for the amount of said increase within thirty days of notice of the same. 10 13. DAMAGE OR DESTRUCTION OF IMPROVEMENTS BY FIRE OR OTHER CASUALTY. In the event the leased premises are destroyed or damaged by fire or other casualty, the Tenant, at its option, agrees that it will cause said premises and/or other improvements to be replaced or said damage to be repaired as rapidly as practicable. The Landlord may abate the Tenant's rent for the period of time more than 80% of the principal building, if any, is unusable. In the event the Tenant elects to repair and/or replace the leased premises, the Landlord shall have no claims against any insurance proceeds paid to the Tenant on account of such damage and/or destruction nor shall the Landlord have any responsibility or obligation to make any expenditures toward the repair and/or replacement of the building and other improvements on the leased premises. (a) If the Tenant, under its option, elects not to repair the leased premises, the Landlord shall have two options: (1) To continue to Lease; if the Landlord elects to continue the Lease, the Landlord shall be entitled to any of the insurance proceeds on account of such damage and/or destruction, such proceeds to be the sole property of the Landlord; or (2) To cancel the Lease; if the Landlord elects to cancel the Lease, the Landlord shall be entitled to that portion of the insurance proceeds paid as a result of such damage and/or destruction to the building and other improvements on the leased premises, the Tenant shall be entitled to the remainder, if any, of the insurance proceeds. (b) In the event the Tenant, under its option, elects not to repair and/or replace the leased premises, the Tenant shall, at its sole expense, remove all remaining portions of the leased premises. 14. INDEMNIFICATION. The Tenant agrees hereby to defend, indemnify and save the Landlord harmless from any and all actions, demands, liabilities, claims, losses or litigation arising out of or connected with the Tenant's occupancy or use of the leased premises and the use of the leased premises by tenant's agents, employees, and invitees, including all attorney's fees incurred by the Landlord in defending any such claims. This Paragraph shall survive the termination or cancellation of the Lease. 15. ENVIRONMENTAL MATTERS. The Tenant hereby agrees to indemnify, defend and hold the Landlord harmless from and against any and all claims, lawsuits, losses, liabilities, damages, and expenses (including, without limitation, clean-up costs and reasonable attorney's fees) resulting directly or indirectly from, out of or by reason of any hazardous or toxic materials, substances, pollutants, contaminants, petroleum products, hydrocarbons or wastes being located on the property and being caused by the Tenant, sub Tenants, agents, assigns, or users of leased premises or fuel farm. The presence of said substance or materials on the leased premises, or fuel farm, shall raise the presumption that Tenant is the cause of such presence. Section 16 shall survive the termination, or cancellation, of the Lease. 16. PREVENTION OF USE OF THE PREMISES. If, after the effective date of this Lease, the Tenant is precluded or prevented from using the leased premises for those primary purposes identified in Section 6 of this Lease, by reason of any zoning law, ordinance or regulation of any authority having jurisdiction over the leased premises and such prohibition shall continue for a period in excess of ninety (90) consecutive days, the Landlord may allow the Tenant to terminate this Lease. The right to terminate this Lease must be granted by the Landlord, in writing, before the Tenant shall be released from its obligations under the terms of this Lease. 17. AIRPORT USE FEES. Landing, tie down, or any other type of use of airport fees being charged by Tenant are specifically prohibited by this Agreement as the use of the Airport is for the general public. Nothing in this Lease shall act to prohibit the Landlord from charging such fees as it deems necessary or desirous. 18. GOVERNMENT SEIZURE. In the event the United States Government, or any agency or subdivision thereof, at any time during the term of this Lease takes over the operation or use of the airfield and/or Airport which results in the Tenant being unable to operate under the terms of the Lease, then the Lease may be extended upon mutual agreement of the Tenant and the Landlord for an additional period equal to the time the Tenant has been deprived of the value of this Lease. If the duration of the 11 seizure exceeds ninety (90) consecutive days, the Landlord, at the Landlord's sole discretion, may terminate this Lease. 19. EMINENT DOMAIN. If all or any part of the leased premises shall be taken under a power of eminent domain, the compensation or proceeds awarded for the taking of the leased premises shall belong to the Landlord. If the taking is to such an extent that it is impracticable for the Tenant to continue the operation of its business on the leased premises, the Lease, at the option of the Landlord, may be terminated. Nothing herein shall prevent the Landlord and/or the Tenant from seeking any and all damages sustained from the condemning authority by reason of the exercise of the power of eminent domain. 20. DEFAULT BY TENANT. As used in this Lease, the term, "event of default shall mean any of the following: (a) The failure of the Tenant to fulfill any duty or obligation imposed on the Tenant by the Lease; (b) The appointment of a receiver or the entry of an order declaring the Tenant bankrupt or the assignment by the Tenant for the benefit of creditors or the participation by the Tenant in any other insolvency proceeding; (c) The Tenant's failure to pay any consideration, to the Landlord, required by this Lease; (d) The taking of the leasehold interest of the Tenant hereunder pursuant to an execution on a judgment; (e) The Tenants abandonment of any substantial portion of the leased premises. "Abandonment" shall be determined by the Landlord; (f) The Tenant or any guarantor of Tenant's obligations hereunder, filing a petition for bankruptcy or being adjudged bankrupt, insolvent, under any applicable federal or state bankruptcy or insolvency law, or admit that it cannot meet its financial obligations as they become due, or a receiver or trustee shall be appointed for all or substantially all of the assets of Tenant or any Tenant's obligations hereunder; 12 (g) The Tenant or any guarantor of the Tenant's obligations hereunder shall make a transfer in fraud of creditors or shall make an assignment for the benefit of creditors; (h) The Tenant shall do or permit to be done any act which results in a lien being filed against the leased premises or the property which is not released of record within thirty (30) days of the date it is initially recorded in the Public Records of Indian River County. Each party covenants and agrees that it has no power to incur any indebtedness giving a right to a lien of any kind or character upon the right, title and interest of the other party in and to the property covered by this Lease, and that no third person shall ever be entitled to any lien, directly or indirectly, derived through or under the other party, or its agents or servants, or on account of any act of omission of said other party. All persons contracting with the Tenant or furnishing materials or labor to said Tenant, or to its agents or servants, as well as all persons whomsoever, shall be bound by this provision of this Lease. Should any such lien be filed, the Tenant shall discharge the same by payment or by filing a bond, or otherwise, as permitted by law. The Tenant shall not be deemed to be the agent of the Landlord so as to confer upon a laborer bestowing labor upon the leased premises, a mechanic's lien upon the Landlord's estate under the provisions of the Florida Statutes, or any subsequent revisions thereof; (i) The liquidation, termination, death or dissolution of the Tenant or all Guarantors of the Tenant's obligations hereunder; (j) The Tenant fails for more than one hundred twenty (120) consecutive days to continuously conduct and carry on in good faith the type of business for which the leased premises are leased; (k) The Tenant shall be in default of any other term, provision or covenant of this Lease, other than those specified in subparts a through 1 above. Upon the happening of any "event of default the Landlord may, at its option, terminate this Lease and expel the Tenant therefrom without prejudice to any other remedy; 13 t zD provided, however, that before the exercise of such option for failure to pay rent or failure to perform any condition imposed herein upon the Tenant, the Landlord shall give written notice of such event of default to the Tenant, which thereafter shall have thirty (30) days, from the date notice is sent by the Landlord, within which to remedy or correct such default, unless such default is the failure to pay lent, in which case the Tenant shall have ten (10) days, from the date notice is sent by the Landlord, within which to remedy such default by paying all rent due. 21. IDENTITY OF INTEREST. The execution of this Lease or the performance of any act pursuant to the provisionst hereof shall not be deemed or construed to have the effect of creating between the Landlord and the Tenant the relationship of principal and agent or of a partnership or of a joint venture and the relationship between them shall be and remain only that of landlord and tenant. 22. NOTICES AND REPORTS. Any notice, report, statement, approval, consent designation, demand or request to be given and any option or election to be exercised by a party under the provisions of this Lease shall be effective only when made in writing and delivered (or mailed by registered or certified mail with postage prepaid) to the other party at the address given below: Landlord: City of Sebastian Attn: City Manager 1225 Main Street Sebastian, FL 32958 Tenant: Peter Torell, CAIP NationAir Aviation Insurance 202 Airport Drive East Sebastian, FL 32958 provided, however, that either party may designate a different representative or address from time to time by giving to the other party notice in writing of the change. Rental payments to the Landlord shall be made by the Tenant at an address to be furnished to the Tenant. 23. RIGHT TO INSPECT. The Landlord may enter the leased premises upon reasonable notice: 14 (a) To inspect or protect the leased premises or any improvement to a property location thereon; (b) To determine whether the Tenant is complying with the applicable laws, orders or regulations of any lawful authority having jurisdiction over the leased premises or any business conducted therein; or (c) To exhibit the leased premises to any prospective purchaser or tenant during the final sixty (60) days of the lease term, or at any time after either party has notified the other that the Lease will be terminated for any reason. No authorized entry by the Landlord shall constitute an eviction of the Tenant or a deprivation of its rights or alter the obligation of the Landlord or create any right in the Landlord adverse to the interest of the Tenant hereunder. 24. OWNERSHIP OF TRADE FIXTURES, SIGNS AND PERSONAL PROPERTY. At the expiration of the Lease, any and all trade fixtures, signs and personal property, used by the Tenant in the operation of its business, on the leased premises shall remain the Tenant's sole property and the Tenant shall have the right to remove the same provided any damages in removal are repaired by the Tenant at Tenant's sole cost. In case of breach of this Lease by the Tenant, or the termination of the Lease, or any extension hereunder, that may be granted, the Tenant agrees to immediately surrender possession of said facilities, and all the buildings, edifices, etc. that are constructed by or on behalf of Tenant. The facilities, buildings, edifices, etc. shall then become the property of the Landlord. 25. HEIGHT/HAZARD RESTRICTIONS. The Tenant expressly agrees for itself, its successors and assigns, to restrict the height of structures, objects of natural growth and other obstructions on the leased premises to such a height so as to comply with all Federal Aviation Regulations, State laws and local ordinances, rules and regulations now existing and hereinafter promulgated. The Tenant expressly agrees for itself, its successors and assigns, to prevent any use of the leased premises which would interfere with or adversely affect the operation or maintenance of the Airport or otherwise constitute an airport hazard. The Tenant covenants and acknowledges that the use of the 15 leased premises as proposed by the Tenant does not interfere with or adversely affect the operation or maintenance of the Airport or otherwise constitute an Airport hazard. The Landlord reserves unto itself, its successors and assigns, for the use and benefit of the public, a right of flight for the passage of aircraft in the airspace above the surface of the leased premises, together with the right to cause in such airspace such noise as may be inherent in the operation of aircraft, now known or hereafter used, for navigation or flight in the airspace, and for use of said airspace for landing on, taking off from, or operating on the Airport. 26. NONDISCRIMINATION. The Tenant for itself, its personal representatives, successors in interest and assigns, as part of the consideration hereof, does hereby covenant and agree as a covenant running with the land that (i) no person on the grounds of religion, gender, marital status, race, color, age, or national origin shall be excluded from participation in, denied the benefits of, or be otherwise subject to discrimination in the use of the Tenant's facilities; (ii) that in the construction of any improvements on, over or under the leased premises and the furnishing of services thereon, no person on the grounds of religion, gender, marital status, race, color, age, or national origin shall be excluded from participation in, denied the benefits of, or otherwise be subjected to discrimination; (iii) that the Tenant shall use the premises in compliance with all other requirements imposed by or pursuant to Title 49, Code of Federal Regulations, Department of Transportation, Subtitle A, Office of the Secretary, Part 21, Nondiscrimination in Federally Assisted Programs of the Department of Transportation Effectuation of Title VI of the Civil Rights Act of 1964. In the event of the breach of any of the above non- discrimination covenants, the Landlord shall promptly notify the Tenant, in writing, of such breach and the Tenant shall immediately commence curative action. Such action by the Tenant shall be diligently pursued to its conclusion, and if the Tenant shall then fail to commence or diligently pursue action to cure said breach, the Landlord shall then have the right to terminate this Lease and to re -enter and repossess said land and improvements thereon. 27. ENTIRE AGREEMENT. This Lease contains all of the understandings by and between the parties hereto relative to the leasing of the premises herein described, 16 and all prior or contemporaneous agreements relative thereto have been merged herein or are voided by this instrument, which may be amended, modified, altered, changed, revoked or rescinded in whole or in part only by an instrument in writing signed by each of the parties hereto. 28. ASSIGNMENT AND SUBLETTING. The Tenant shall not assign this Lease or sublet the leased premises or any portion thereof, or otherwise transfer any right or interest hereunder without the prior written consent of the Landlord. If the Landlord consents, in writing, to the assignment, subletting or other transfer of any right or interest hereunder by the Tenant, such approval shall be limited to the particular instance specified in the written consent and the Tenant shall not be relieved of any duty, obligation or liability under the provisions of its Lease. 29. BINDING EFFECT. The terms and provisions of this Lease shall be binding on the parties hereto and their respective heirs, successors, assigns and personal representatives, and the terms of any Addendum attached hereto are incorporated herein. 30. APPLICABLE LAW/VENUE. In the event of litigation arising out of this writing, venue shall be in Indian River County, Florida and the terms of this Lease shall be construed and enforced according to the laws of the State of Florida except to the extent provided by Federal law. 31. ATTORNEYS FEES. In any action arising out of the enforcement of this writing, the prevailing party shall be entitled to an award of reasonable attorney fees and costs, both at trial and all appellate levels, based upon the prevailing rates of private attorneys in Indian River County, Florida. 32. RECORDING. In no event shall the Lease or a copy thereof be recorded in the Public Records of Indian River County, Florida. 33. MISCELLANEOUS. All delinquent payments to the Landlord shall bear interest at the rate of 18% per year from date the payments are due to the date of payment. Said interest shall be calculated on a daily basis and shall be due and payable when billed. The Tenant acknowledges that the Landlord is required by law to operate under an Airport Master Plan and the Tenant covenants that he will use the leased premises consistent with the Airport Master Plan. 17 The Tenant shall not allow its occupancy or use of the lease premises to constitute or become a public or private nuisance. 34. CONTENGENCIES. The provisions in this lease are contingent on the Landlord providing the installation of Hi -Speed intemet to the space provided to Tenant. In addition, this lease is contingent on the Landlord installing a dry-wall `patch' on the pocket door system from the executive office to the secondary office of the leased space. IN WITNESS WHEREOF, the parties hereto have set their hands and seals the day and year first above written. ATTEST: CITY OF SEBASTIAN A Municipal Corporation By: Sally Maio, City Clerk Al Minner, City Manager (seal) Approved as to Form and Legality for Reliance by the City of Sebastian only: Robert A. Ginsburg, City Attorney NationAir Insurance Group By: Peter Torell, Vice President 18 Corporate Seal: Schedule "A" Lease Agreement between the City Of Sebastian and NationAir Aviation Insurance Group 1. Leased premises shall include a `wing' at the Sebastian Municipal Airport Administration Building currently known as the "Airport Administration Wing." This space is approximately 1476 square feet, more or less. 2. An approximately 10' X 10' office adjoining the lobby area of the administration building is included. This area is identified as the "Mail /Copy room." Total leased space is 1576 square feet. 2. Premises are un- furnished. 3. 4. Utility charges shall be prorated according to square foot usage. 5. Common Area Maintenance (CAM) shall be at no charge to the Tenant. 6. Lobby /reception area shall be considered a common/shared space with other building tenants. 7. Tenant shall have use of a locked Conference Room/Library adjacent to the lobby of the administration building with appropriate notice to the Landlord. 8. Tenant shall have use of conference facilities in the Emergency Operations Center (EOC) Wing of the Airport Administration Building with appropriate notice to the Landlord. Schedule "B" Lease Agreement between the City Of Sebastian and NationAir Aviation Insurance Group 1. The City Of Sebastian shall lease to NationAir an aircraft Tie -Down position located on the airport administration building ramp. The Tie -Down is located on the eastern most portion of the ramp in front of the most eastern light stanchion. The position will be marked with a "RESERVED" sign. It is understood that the aircraft Tie -Down shall be used in conjunction with the insurance operations of NationAir. It is understood that the City Of Sebastian retains ownership of the Tie -Down throughout the term of the lease. 2. The lease rate shall be at a rate as describe in section 4 of the lease agreement. 3. It is understood that NationAir will provide adequate insurance on all aspects relating to its insurance and Tie -Down operations. In addition, NationAir will provide adequate liability and property damage insurance coverage on the city owned Tie -Down position. NationAir will hold harmless the City Of Sebastian of any claim or liability relating to NationAir's lease, or use of, the Tie -Down position. Subject: Code Enforcement Order #07 Settlement of KB Home A ro d or Submittal by: -03445 Lien Agenda No. Oq, /43 Department Ori City Attorney: City Clerk: Cit Manager Date Submitted: 16 SEP 09 I n r, City Manager Exhibits: July 16, 2008 Minutes; July 2, 2008 CA Transmittal; April 2, 2008 KB Home Offer; September 15, 2009 KB Counter -Offer EXPENDITURE REQUIRED: $0 AMOUNT BUDGETED: $0 APPROPRIATION REQUIRED: $0 mf Q SEs�s'rIAN HOME OF PELICAN ISLAND AGENDA TRANSMITTAL SUMMARY At a Special Meeting on July 16, 2008, City Council considered a settlement offer from KB Homes in the amount of $5,000. The offer was to settle outstanding code enforcement liens at their model home site in Sebastian River Landing Phase I. The code infractions have been remedied; however, the lien remains on the books in the amount of $34,250, plus cost of $30.84, plus interest. At the meeting Council requested a settlement offer of $10,000. Subsequently, staff and KB Homes were unable to settle the issue. KB Homes is now ready to build models for Sebastian River Landing Phase II. Staff has identified five outstanding issues at Sebastian River Landing Phase 1I. While most of these issues are either correctable with staff action or already corrected, the last issue is the lien. In a letter dated September 15, 2009, KB Homes has increased their original offer and now provides a counter offer in the amount of $10,000 to settle the lien. I have contacted KB Homes, and per Council July 16, 2008 directive, have accepted the settlement. The purpose of this item being placed on the agenda is to inform Council that Code Enforcement Order #07 -03445 is now closed. Special City Council Meeting July 16, 2008 Page Twelve 08.054 F. First Readina of Ordinance No. 0-08-07 Specified Commercial Sianane Set 203 -214 Public Hearing for 8/13/08 (Growth Management Transmittal. 0- 08-07. P Z Minutes 5/14/08 and 6/19/08) AN ORDINANCE OF THE CITY OF SEBASTIAN, FLORIDA, ENACTING TEMPORARY RELIEF MEASURES FOR SPECIFIED COMMERCIAL SIGNAGE TO ADDRESS THE CURRENT ECONOMIC DOWNTURN; PROVIDING FOR SEVERABILITY, CONFLICTS, SUNSET AND EFFECTIVE DATE. Preceding motion carried this item to the July 23 2008 meeting. 08.087 G. Consider Offer to Compromise Fine ALytount and Authorize Release of Lien in Code 215 -219 Enforcement Case #07 -03445 for the Amount of $5200 (City Attorney Transmittal) The City Attorney advised this involves the KB Home sales trailer on CR510 which sat long after they no longer did business in the area. -le advised Council that the primary purpose is to achieve compliance and they should consider how severe the threat was to public safety. He also explained that KB Homes does not have any property here and we would have to lien records at another location. There was no public input. MOTION by Ms. Simchick and SECOND by Mr. Wolff to authorize the fine of $5200 in the case #07 -03445. Mr. Neglia wanted to make a motion for $5500 plus cost and interest. Mr. Patemoster noted $5200 is 1/7 of what they owe and he wanted to consider 1/3 as they were properly notified, the trailer remained after the notice, we are talking about a corporation, maybe $8000 for the trouble involved. Mayor Coy agreed the amount is lowball and would like to see at least 50%. The City Attomey said one concern is we are not sure what kind of assets they have, it is actually Treasure Coast KB Homes LLC, don't know if property left so we have to go after bank accounts which would be difficult. Ms. Simchick said the most important thing is compliance and asked if we want to exercise the City Attorney in this manner. Discussion followed on offering a counter fine. Ms. Simchick withdrew her motion. MOTION by Mr. Patemoster and SECOND by Mr. Neglia to counter with a $10,000 fine from KB Homes for all of the City's efforts in this matter. Roll call on the motion was as follows: Ayes: Patemoster, Simchick, Wolff, Coy, Neglia Nays: 0 5-0 12 City of Sebastian, Florida Subject: Code Enforcement order #07- 03445; Date Submitted: 7/2/08 Settlement of KBHome lien SUMMARY: RECOMMENDED ACTION: OFFICE OF THE CITY ATTORNEY AGENDA TRANSMITTAL Agenda No. ff• og For Agenda of 7/9/08 On August 21, 2007 an order was entered against KBHome by the special Magistrate for failure to remove the sales center trailer in Sebastian River Landings upon completion of sales therein. The trailer was finally removed 137 days after the time set for compliance, with a resulting fine of $34,250, plus costs of $30.84, plus interest. KBHome has requested that the City compromise the amount of the fine and release the lien, and a check has been proffered in the amount of $5200 for executing a release of the lien. It is the opinion of my office that compromise of a code enforcement lien is the prerogative of City Council. In considering the offer, Council may want to give consideration to the degree of noncompliance while keeping in mind the directive of state statute that the primary goal of code enforcement is to achieve compliance rather than to punish, further recognizing that KB has ceased doing business within the region (which, additionally, makes collection of the lien more difficult. Consider offer to compromise fine amount and authorize release of the lien in Code Enforcement Case #07 -03445 for the amount of $5200. REVIEWED BY CITY CLERK: AUTHORIZED PLACEMENT ON AGENDA BY CITY MANAGE CITY OF SEBASTIAN CODE ENFORCEMENT SPECIAL MAGISTRATE IN THE MATTER OF: KB Home Treasure Coast LLC RESPONDENT. CONCLUSIONS OF LAW FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER CASE NO. 07-03445 THIS CAUSE came on for public hearing before the Code Enforcement Special Magistrate of the City of Sebastian, on August 21, 2007 after due notice to the Respondent, and based on the evidence presented the Special Magistrate makes the following: FINDINGS OF FACT 1. That Respondent KB Home Treasure Coast LLC is the registered owner of the property at 177 Stony Point Drive, located in Sebastian River Landing, Phase I, in Sebastian, Florida. 2. That Respondent maintained a temporary trailer as a sales office at the site for sales of homes within that subdivision. 3. That Respondent was notified on July 11, 2007 that the property was in violation of Sec. 54- 2 -7.13 of the City's Land Development Code, which states that such trailer must be removed within ten days after completion of construction or after the issuance of a certificate of occupancy, whichever comes first, and Respondent was given thirty (30) days in which to remove the office trailer from the premises. 4. That more than thirty (30) days have passed since Respondent was notified of the code violation, and the trailer has not been removed. WHEREFORE, based upon the aforementioned Findings of Fact, the Code Enforcement Special Magistrate makes the following: That the Respondent KB Home Treasure Coast LLC is in violation of Section 54-2 -7.13 of the Code of Ordinances. WHEREFORE, based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby ORDERED as follows: That Respondent shall remove the sales trailer from the property located at 177 Stony Point Drive, Sebastian, Florida within forty-five (45) days. RENDERED this day of 2007, in Sebastian, Florida. CITY OF SEBASTIAN, FLORIDA Robert A. Ginsburg, Special Magistrate A true and correct copy hereof was delivered to Respondent by hand delivery/certified mail this /sue day of aata.. s Y 2007. 4 C A:2 Clerk, Code Enforcement ORDERED CITY OF SEBASTIAN CODE ENFORCEMENT SPECIAL MAGISTRATE 1N THE MATTER OF: KB HOME TREASURE COAST LLC 177 STONY POINT DRIVE, SEBASTIAN, FL RESPONDENT. ORDER IMPOSING FINE CASE NO. 07-03445 1888827 THIS DOCUMENT HAS BEEN RECORDED IN THE PUBLIC RECORDS OF INDIAN RIVER COUNTY FL BK: 2224 PG:1303, Pagel of 1 12/03/2007 at 04:14 PM, JEFFREY K BARTON, CLERK OF COURT THIS CAUSE came before the Code Enforcement Special Magistrate of the City of Sebastian, on November 13, 2007 for consideration under the FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER entered in this cause August 21, 2007, and it being proved that the property remained in noncompliance for 40 days, from October 5 through November 13, 2007, and in consideration of the circumstances herein, it is 1. That a fine of $250.00 is hereby imposed for each day that Respondent remained in noncompliance with the above-describd Order, for a total fine of ten thousand dollars ($10,000). Said fine shall continue to accrue at a rate of $250.00 per day for each day after November 13, 2007, until Respondent demonstrates that the property has been brought into compliance_ 2. In addition to the fine, this Order Imposing Fine shall include administrative costs consisting of $20.84 in certified mail fees for required notifications and $10.00 in recording fees. 3. That a certified copy of this Order be recorded as a lien in the amount of ten thousand thirty dollars and 84 cents ($10,.030.84) in accordance with the provisions of Code of Ordinances and the laws of the State of Florida. DONE AND ORDERED this /32e day of November, 2007. CITY OF SEBASTIAN, FLORIDA Robert A. Ginsburg, Speciaf&lagistrate A true and correct con hereof was delivered to Respondent by hand delivery/certified mail this /3zx day of Nh� 4 2007. Ag .c.co Clerk, Code Enforcement VIA Regular Mail Ms. Rebecca Grohall, AICP Director of Growth Management City of Sebastian 1225 Main Street Sebastian, FL 32958 Dear Ms. Grohall: April 4, 2008 RECEIVED APR 1 _NOB P Z Growth Mgnt. Direct Line: 407- 587 -3492 Email: jcamp@kbhome.com Re: Sebastian River Landings Phase 2, Case No. 07- 03445, Order Imposing Fine, BK:2224, PG: 1303 as recorded in the Public Records of Indian River County, Florida As you are aware, due to unfortunate circumstances a violation occurred and a fine was imposed on KB Home Orlando. KB Home Orlando desires to resolve the above referenced matter and would like offer to settle this fine in the amount of $5,200.00. We are requesting the City take this offer into consideration. If you have any questions about the foregoing, please do not hesitate to contact me at (407) 587 -3492. cc: Reed Berlinsky, KB Home Scott Cookson, KB Home Very truly yours, 4) Jeremy W. Camp Sr. Forward Planning Manager 9102 Southpark Center Loop, Suite 200 Orlando, Florida 32819 Phone: 407 -587 -3400 Fax 407 -587 -2340 September 15, 2009 Ms. Rebecca Grohall, AICP Director of Growth Management City of Sebastian 1225 Main Street Sebastian, Florida 32958 Dear Ms. Grohall: Re: Sebastian River Landings Phase 2, Case No. 07- 03445, Order Imposing Fine, BK: 2224, PG: 1303 as recorded in the Public Records of Indian River County, Florida As you are aware, KB Home submitted an to settle an outstanding Code Enforement Fine in April of 2008. That offer was subsequently rejected by the City Council and to date we have received no formal counter -offer from City Council. As discussed in our meeting on September 14, 2009, KB Home would like to resolve this matter as soon as possible. KB Home is offering to settle this fine in the amount of $10,000.00 which we feel will adequately satisfy any costs incurred by the City. If you have any questions about the foregoing, please do not hesitate to contact me at (407) 587 -3497. Very truly yours, Jeremy amp Sr. Forward Planning Manager 9102 Southpark Center Loop, Suite 100 Orlando, Florida 32819 Phone: 407 -587 -3400 Fax 407 -587 -2340 Subject: Furlough Days A rov for Submittal by: Agenda No. I LI q Department Origin: City Attorney: City Manager City Clerk: Date Submitted: 16 SEP 09 %*f' City Manager Exhibits: EXPENDITURE REQUIRED: $0 AMOUNT BUDGETED: $0 APPROPRIATION REQUIRED: $0 Monday, October 12, 2009 Wednesday, November 25, 2009 Thursday, December 31, 2009 Friday, January 15, 2010 Friday, February 12, 2009 Friday, March 12, 2010 Friday, April 9, 2010 Friday, May 28, 2010 Monday, June 21, 2010 Tuesday, July 6, 2010 Friday, August 13, 2010 Friday, September 3, 2010 HOME OF PFJJCAN ISLAND AGENDA TRANSMITTAL SUMMARY Should Council approve the FY 2010 Budget, as proposed, on September 23, 2009, 12 furlough days will be instituted for the coming fiscal year. As an informational item those days would be scheduled as follows. Upon final adopting and approval of the FY 2010 Budget, as proposed, a formal policy will be written with regard to the furlough days and distributed to all employees.