Fort Walton Beach Council agenda — 02-10-09 regular — reading text

PROGRAM 2009 -2013 AND THE OKALOOSA COUNTY SCHOOL BOARD' S 2008 -2009 SCHOOL FACILITIES WORK PLAN; PROVIDING FOR SEVERABILITY AND AN EFFECTIVE DATE. The Acting City Manager advised there is a recommendation to amend Ordinance 1784 by amending Table H1 to include the Kepner Drive Water Main Replacement Project, so before a vote is taken on the ordinance itself, a vote must be taken to include Kepner Drive into the Capital Improvements Element. Samantha Abell, Senior Planner, explained that any comprehensive plan amendment that changes the schedule in the Capital Improvements Element ( CIE) may be made once in a calendar year to coincide with the adoption of the local government's budget and capital improvements program. Ms. Abell advised that the Capital Improvements Program ( CIP) is a planning and budgeting tool which provides information about the City's infrastructure needs over a five -year time frame, and includes projects that have a useful life of ten years or more and cost in excess of $ 25, 000. 00. 112 Regular Council Meeting 1/ 27/ 09 ORD. 1784 (CONT) Ms. Abell continued that the Kepner Drive project was not on the City's five -year CIP plan, but because of issues of " dirty water" from residents, and because the cost to repair is over 25, 000, the CIE must be amended to include the Kepner Drive Project. The Mayor opened the public hearing on the amendment. As there was none, the public hearing was closed. Mr. Minich moved to amend Table H -1 of Ord. 1784 to include the Kepner Drive Water Main Replacement Project. Mr. Reeves seconded motion and it carried unanimously with Holmes, Miller, Reeves, Garvie, Pullen, Hartwell, and Minich in favor. Ms. Abell advised the Local Planning Agency has recommended City Council approval of Ord. 1784, and entered the Staff Report into the record. The Mayor opened the public hearing on Ord. 1784. As there was none, the public hearing was closed. Mr. Garvie moved to adopt Ord. 1784 on second reading. Mr. Minich seconded motion and it carried unanimously with Holmes, Miller, Reeves, Garvie, Pullen, Hartwell, and Minich in favor. PUBLIC HEARING —ORD. 1789, AMENDING CITY CHARTER TO REMOVE RECORDER The Mayor read the ordinance by title. AN ORDINANCE OF THE CITY OF FORT WALTON BEACH, FLORIDA; PROVIDING AUTHORITY AND INTENT; AMENDING SECTION 53 OF THE CITY CHARTER TO REMOVE ARCHAIC AND INAPPLICABLE PROVISION THAT WAS NULLIFIED AND REPEALED BY THE HOME RULE POWERS ACT OF 1973; AND PROVIDING AN EFFECTIVE DATE. The City Attorney advised that there have been no changes in the ordinance since first reading, and the ordinance is a result from Council' s review of the Charter. The Mayor opened the public hearing. As there was none, the public hearing was closed. Mr. Minich moved to adopt Ord. 1789 on second reading. Mr. Garvie seconded motion and it carried by a vote of 6 to 1 with Holmes, Reeves, Garvie, Pullen, Hartwell, and Minich in favor and Miller opposed. PUBLIC HEARING —ORD. 1790, AMEND FINANCIAL PROCEDURES OF CITY CHARTER The Mayor read the ordinance by title. AN ORDINANCE OF THE CITY OF FORT WALTON BEACH, FLORIDA; PROVIDING FOR AUTHORITY AND INTENT; AMENDING SECTIONS 21, 22 AND 23 OF THE CITY CHARTER TO REMOVE ARCHAIC AND OBSOLETE PROVISIONS REGARDING FINANCE PROCEDURES; AMENDING SECTION 53 TO REMOVE THE FINANCE DIRECTOR AS AN OFFICER APPOINTED BY THE CITY COUNCIL; AND PROVIDING AN EFFECTIVE DATE. The City Attorney advised that there have been no changes in the ordinance since first reading, and the ordinance is a result from Council' s review of the Charter. Upon questioning from Council, the City Attorney stated it was her opinion that the Attorney General' s opinion allows for this action.  113 Regular Council Meeting 1/ 27/ 09 ORD. 1790 ( CONT) The Mayor opened the public hearing. Kabe Woods, 240 Brooks Street, encouraged Council to adopt the ordinance. As no one else wished to speak, the public hearing was closed. Mr. Hartwell moved to adopt Ord. 1790 on second reading. Mr. Reeves seconded motion. Mr. Hartwell stated his appreciation in having the Charter review, and stated his endorsement of the ordinance and that it streamlines the span of control and feels comfortable with the Finance Director reporting directly to the City Manager. Mr. Miller presented his feeling that the City Charter has worked for years and should not be changed and that the Finance Director should continue to be a Charter Officer appointed by the Council. He also suggested that this item be delayed to allow the incoming Council to decide, and that there is no urgency to rush into it. The Mayor called for the vote on the motion and it carried by a vote of 5 to 2 with Holmes, Reeves, Garvie, Hartwell, and Minich in favor and Miller and Pullen opposed. REGULAR AGENDA —FUTURE AGENDA ITEMS The Acting City Manager advised he had no items to present at this time. Mayor Anderson asked Council to review the Northwest Florida League of Cities legislative priorities and the Florida League of Cities legislative priorities to develop a list of priorities for the advocacy group to monitor during the legislative session. Mr. Garvie stated he agreed with the Mayor, as he wants to ensure that what he is pushing for in Tallahassee during the legislative session is what the Council has agreed on. The Acting City Manager was requested to contact The Advocacy Group to provide a synopsis report on their meetings with the Mayor and Council. When the synopsis report is received a special Council meeting will be scheduled to set priorities for lobbying. Mr. Miller questioned whether a Strategic Planning session would be held to lay groundwork for the 2010 budget and who would facilitate it. The City Manager advised he would meet with the Finance Director to incorporate everyone' s thoughts into the budget process. The Finance Director advised she will provide Council a time table for preparation of the 2009/2010 budget to discuss at the February 10, 2009 Council meeting. The Mayor clarified that the City Manager and Finance Director will lead the discussions. COLLATERAL ASSIGNMENT BETWEEN CITY AND FT WALTON DEVELOPERS LLC Consideration of approval of the Collateral Assignment of Development Agreement between City of Fort Walton Beach and Ft Walton Development Partners LLC to the Georgian Bank and authorization for the Mayor and City Clerk to execute that document on behalf of the City upon sufficient proof from the developers of a performance and payment bond of no less than 4, 250,000. The City Attorney advised the developer and principals of Ft. Walton Development Partners LLC are present to discuss their request, and after their response she will inform Council of her advice. 114 Regular Council Meeting 1/ 27/ 09 COLLATERAL ASSIGNMENT (CONT) Bruce Houle, Ft. Walton Beach Development Partners LLC, reported they are ready to begin construction of the garage but the collateral assignment has to be executed for them to close on the loan to get the project started with Georgian Bank. He continued that without it being executed, they cannot get the loan and the project cannot get started. Mr. Houle explained that they cannot pay for the performance bond until after the loan is closed and the performance bond will be provided by the contractor, Hogan Construction Group LLC out of Atlanta. Mr. Houle stated they are asking for approval of the collateral assignment so the project can begin, and they will provide the performance bond before they commence construction of the project. Eric Nathan, Principal with the Ft. Walton Development Partners LLC, explained that the timing is that in order to get the construction financing closed, they need the City to sign the collateral assignment. Without a commitment and signature, the funding won' t happen, the closing won' t be scheduled, and they won' t be able to engage the contractor. Mr. Nathan continued that once a contract is signed, the contractor will then go to their bonding company, bond the project, and name Ft. Walton Development and the City in their performance bond. Council questioned the status in the development of the remainder of the project. Mr. Nathan stated they are still actively seeking financing for the project, but right now it is a difficult time to push things forward. He stated funding is not available at this time, but by commencing the parking deck it should give them the opportunity to finance the rest of the project. Council questioned the risks, or liability, to the City if the project is unable to be completed. The City Attorney agreed that a lot of time has been put into the Development Agreement and the enthusiasm for the project remains, but the developers are saying there is a change to the format of what was originally proposed. The City Attorney advised in her responses to the developer, she laid out very specific provisions from the Development Agreement, mainly that the developer would not permit or constitute a mortgage or lien upon any property or assets owned by the City. She explained the City has leased the City parking lot to the developer, so they have a lease on the property, and they are now basically mortgaging their rights under the Development Agreement which includes the lease. The City Attorney stated when she received this issue, it was a legal concern, but as was reported earlier, it is not just the construction of the garage, there are obligations after the construction that the developer is still liable for to the City, including the continuing maintenance outlined in the Development Agreement, as well as the condominium association setup, because there is a 5 -year timeframe where the City and developers will be working as partners. Mr. Nathan stated he anticipates closing with Georgian Bank, but he would rather have the document approved in the form presented in case there was a substitute lender. The City Attorney discussed the right of the lender upon default of the borrower, and that without waiving any other rights under applicable law, the Lender may perform any and all obligations of the Borrower, which means that the Georgian Bank has no obligation to step in to take over the obligations of the developer, so there is no way for the City to enforce the Development Agreement against a third party bank. The City Attorney stressed she is giving legal advice, but that it is Councils decision on how to handle it, and suggested that if Council is inclined to go forward, the Development Agreement needs to be reviewed. She advised the only other way to secure complete performance under the agreement, in her opinion, is to get an up -front performance bond directly from the principals, not the contractor. The Development Agreement required that from the developers, and it would be about $ 50, 000 to secure the performance bond for the $ 4,250, 000. 00.