To:                   Mayor Allen Green

Vice Mayor Mary Martin

Councilman Dennis Kennedy

Councilman Robert Pohlmann

Councilman George Steindoerfer


From:              Kenneth W. Parker, City Manager


Subject:         Agenda Commentary for Regular City Council Meeting of

                        December 2, 2008


Date:               November 20, 2008





Item 1 -           Pledge of Allegiance

Item 2 -           Silent Invocation

Item 3 -           Roll Call





Item 4 -           PFM Asset Management, LLC Presentation - Annual Investment Performance Review FY2008


Each year, the City’s Investment Firm, PFM Asset Management, LLC, prepares an annual report that portrays the City’s investment performance for the past fiscal year.  A copy of this report is attached. 


Item 5 -           Port Orange-South Daytona Chamber of Commerce Presentation


Debbie Connors will be present on Tuesday night to provide the City Council with a first quarter report.  As you will recall, the City entered into a contract with the Chamber to perform certain services.  The Chamber and the City have been working together looking at potential revisions to the City sign code.  Ms. Connors will be reporting on that activity and requesting that the City Council authorize staff to develop proposed changes to the sign ordinance.



C.  CITIZEN PARTICIPATION (Non-Agenda - 15 Minutes)




Item 6 -           Approval of Minutes


Attached are the minutes of the following meetings:


            October 7, 2008 – Regular City Council Meeting

            October 21, 2008 – Regular City Council Meeting

            October 28, 2008 – Regular City Council Meeting

            November 4, 2008 – Regular City Council Meeting


Staff recommends approval.


Item 7 -           Update on Construction Projects


Attached is the update on Construction Projects.  If you have questions, please contact any of the project managers or me.


Item 8 -           Update on Recreational Facilities


Attached is the report from Parks and Recreation.  If you have questions, please contact either Susan Lovallo or me.


Item 9 -           Road Construction Report


Attached is the Road Construction Report.  If you have questions, please contact either Warren Pike or me.


Item 10 -        Rose Bay Funding Memorandum of Understanding


The City Council previously authorized and appropriated $1 million toward the $4 million sponsor match shortfall to complete the Rose Bay Watershed Restoration Project.  The St. Johns River Water Management District (District) has requested the City enter into a memorandum of understanding with the District, as well as the County of Volusia and Florida Inland Navigation District (FIND) to jointly fund the project.


The memorandum of understanding limits the funding contribution amounts to no greater than $1 million with excess dollars refunded to the participating agencies equally.  Staff is requesting City Council permit the City Manager to amend language in the memorandum of understanding that does not affect the City’s financial contribution in order to effectuate the commitment of all parties. The Volusia County Council and FIND will consider this memorandum of understanding at their respective December meetings.


In order to keep the project on schedule, funding requirements must be met on or before July 9, 2009.


Staff recommends that Council execute a Memorandum of Understanding (MOU) to jointly fund the unmet sponsor match to the Army Corps of Engineers Section 206 Ecosystem Restoration Program project in Rose Bay in an amount not to exceed $1 million and authorize the City Manager to modify language in the MOU which does not affect the City’s financial contribution.


City Manager’s Comments:  This has been included in the City‘s Operating Budget.  Volusia County, Port Orange, and the Water Management District are pursuing other options and alternatives to provide funding for this project as well.  It appears that there will be a stimulus package proposed during the next few months that may provide us with an opportunity to receive additional funding for the project.


Item 11 -        Requested Approval of Selection of Low Bidder, R/J Group, Inc. as General Contractor for SHIP Substantial Rehabilitation of 121 Wimbledon Court


The City of Port Orange’s Local Housing Assistance Plan includes a strategy to provide substantial rehabilitation to income eligible owner-occupied homeowners.  Mr. and Mrs. Spencer have been determined income eligible to receive this assistance and the property has been determined eligible to receive this assistance.


The proposed substantial rehabilitation of this home includes many handicap accessibility modifications necessary to accommodate Mr. Spencer’s handicap needs as well as replacement of the roof and other renovations necessary to bring the home up to current housing code standards.


The City received four bids total, with three qualified bids from licensed contractors and has selected low bidder, R/J Group, Inc. in the amount of $35,999.00


As the City is not the property owner, the actual contract for construction will be executed between the homeowner, Mr. Will Spencer and the General Contractor, R/J Group, Inc.  Although the City is not a party in the contract for construction, the City will review all contract documents prior to the homeowner’s execution of said documents to ensure that the City’s detailed scope of work for rehabilitation of this housing unit is expressed and enforceable.


Staff recommends that Council approve selection of low bidder, R/J Group, Inc. as General Contractor for SHIP Substantial Rehabilitation of property located at 121 Wimbledon Court in the amount of $35,999.00, subject to the City Manager’s and City Attorney’s approval of the contract between the property owner/applicant and R/J Group, Inc.


Item 12 -        Approve Final Ranking of Design-Build Causeway Park Restroom


A Design-Build for the replacement of the Causeway Park Restroom Facility was recently requested.  Three firms were short listed and then made oral presentations to the Selection Committee.  The Committee ranked A. G. Pifer first, CCI second, and AWM third.  Opening the price proposal then realigned the points to determine the final ranking of:  CCI, A. G. Pifer, and AWM.  CCI’s price proposal was $153,425 for the base bid with an add alternate of $8,068 for the stainless steel plumbing fixtures for a grand total of $161,493.


Funding for this project is in the 315-5100-572-6397, Project No. QPC029, in carry-over.


Staff recommends that Council approve the final ranking and price proposal from Commercial Construction Inc. for their price proposal as was submitted during the Design-Build for the Causeway Park Restroom in the amount of $153,425 and alternate number one for an additional $8,068 for the stainless steel plumbing fixtures, for a grand total of $161,493.


Item 13 -        Change Order No. 3 Sale and Hauling of Fill Material



The City’s utility presently utilizes a 75-acre reclaimed water reservoir.  A 100-acre companion reservoir is currently under construction by Halifax Paving and was targeted to be completed by December 31, 2008.  However, the City desires to increase the depth of excavation in order to secure additional fill material for future projects.  This change required a permit modification, which was approved by the SJRWMD and the ACOE, and the construction permit expires in February 2011. 


The increased excavation will yield 1,000,000 additional cubic yards of fill material. Halifax has agreed to excavate the additional depth by December 31, 2010.  As compensation, Halifax will receive 750,000 cy while the City takes ownership of 250,000 cy (3:1 ratio of Halifax: City).  At present, the City has approximately 190,000 cy in its stockpile, so the 250,000 cy addition will result in approximately 440,000 cy of fill material for future City projects.


Meanwhile, the Public Utilities Department and our customer base would benefit significantly by having beneficial use of the additional 100-acre reservoir.  It would increase our reclaimed water storage capacity dramatically, and further ensure our ability to avoid discharging treated wastewater into the Halifax River.  Toward that end, the change order has been developed to provide Halifax with an incentive of $350,000 for early completion of the project by June 30, 2009, 18 months ahead of schedule, with funding available in UET011.  The bonus is reduced each month thereafter.  Thus, if Halifax simply completes the project on time (December 31, 2010), then the incentive pay for early completion is “zero.”  Additionally, should Halifax fail to complete the excavation by the deadline, the incentive becomes a penalty for each month past the due date.  Finally, the contract allows for incentives and penalties to be paid fully or partially “in dirt” if both parties agree.  Further, Halifax may store its dirt on City lands through December 31, 2013 while providing security and maintaining the integrity of Shunz Road.


Halifax agreed to continue loading fill on to City trucks at no charge.  Additionally, Halifax increased its previous hauling costs by $1 to $3.30, $4.00, and $4.25 per cy to haul dirt to the west, east and south sectors of the City.  We are requesting that Council approve the requested Change Order No. 3 to the existing contract with Halifax Paving.


Staff recommends that Council approve Change Order No. 3, amending the contract with the firm of Halifax Paving for Bid B05-04 “Sale and Hauling of Fill Material,” with a change in contract price of $350,000, and providing for a time extension of 720 days for substantial completion by December 31, 2010, and authorize the Mayor and City Manager to execute the associated contract documents.


Item 14 -        Acceptance of Settlement in the Case of Maria Ortiz vs. City of Port Orange


On October 27, 2003, Ms. Ortiz tripped and fell on the sidewalk as she was walking around the City Center lake.  Ms. Ortiz claims that a lip on the sidewalk caused the fall.  Ms. Ortiz claims to have incurred approximately $12,000.00 in medical bills attributable to the incident.  It is the City’s position that there is no liability as the elevation difference, if any, was insignificant.  Further, an independent medical exam suggests that much of the medical expense is due to either over treatment, treatment of pre-existing injuries, or both.  

At mediation Plaintiff, Ortiz, offered to settle the case for $7,750.00.  The offer was approved contingent on approval by City Council.  A copy of the settlement agreement is attached.  Although it is the City’s position that there is no liability the defense cost of trying the case before a jury would exceed the settlement cost regardless of whether the City prevails. Further, there is always a risk of trying a case before a jury regardless of the strength of your legal position. 


Staff recommend that Council authorize the settlement of the Maria Ortiz  vs. City of Port Orange, Case No. 2006-30135 CICI  pursuant to the terms set forth in the settlement agreement.


Item 15 -        Approve Legislative Support Contract with Pittman Law Group, P.L.


Staff is completing work on the Legislative Program for 2009.  The attached agreement would be to support our efforts in Tallahassee.  Funds are available in Account #001-1000-580-31-13.


Staff recommends that Council employ Pittman Law Group, P.L. to track legislation on the City’s behalf and to work in support of our legislative priorities, including project funding.  The contract will be in an amount not to exceed $40,000 annually.  


City Manager’s Comments:  In previous years, we used Sean Pittman to help us secure funding for our various projects, especially Rose Bay and the B-23 Canal.  During this upcoming legislative session, there are at least two bills that we will be interested in following and working either to secure adoption or to secure an exemption.  The first is the inside/outside water rates.  The second is revisions to the Police and Fire Pension.  We will want to work with the other municipal interest groups on the Police and Fire Pension to be sure that what is proposed is a program that does not damage us financially and still provides the security for those who are working in our Public Safety Departments.  Palm Beach County will be proposing an amendment to the existing State Pension law that will allow for the transfer of existing assets and service credits to the State Plan.  This could be beneficial to the City of Port Orange. 




Item 16 -        Resolution No. 08-64  - Budget Appropriations - Budget Encumbrance & Project Carryovers


At the City’s fiscal year ending September 30, 2008, budget appropriations lapse.  The attached resolution re-establishes these appropriations for funding the open purchase orders and projects that were either not completed or started by the fiscal year end.  These carryover appropriations re-establish proper budget project funding and budgetary alignment of projects.  The operating funds have the required 15% equity balances after appropriation of this resolution.  Staff recommends approval of the attached resolution.


City Manager’s Comments:  At the end of each fiscal year, the City is required to appropriate funds for open purchase orders, capital projects, and other items since all appropriations lapse at the end of each fiscal year.  Many of our projects are multi-year projects, and the time frame for use of the funds exceeds one year.  The City has the required 15% equity in reserve as required by our budgetary policy.





Item 17 -        Resolution No. 08-65  - Proposed Easement Release SummerTree Road


The Community Development Department received a request to release the utilities and access easement for the water main and for access, ingress/egress, maintenance, and repair for existing public and private utilities that was reserved over a portion of the Summer Tree Road right-of-way when it was vacated per Resolution 07-94. Conditions stated in Resolution 07-94 for the release of the easement have been satisfied. The Summer Tree Road extension has been constructed and accepted by the City of Port Orange.


Final release letters were received from franchise utility companies for the area to be released when the right-of-way vacation was approved. City departments have reviewed this request with respect to City Codes and possible effects to adjacent properties and have no outstanding concerns. Easements for individual site development will be required with the approval process for those developments. The easement may be released as described in the attached legal description, Exhibit “A”, to the extent that it will no longer be necessary.


Staff recommends that Council approve the attached resolution releasing the utilities and access easement reserved over the Summer Tree Road right-of-way when vacated per Resolution 07-94, as described in the attached legal description, Exhibit “A”.


Item 18 -        Request Approval, by Resolution of Fiscal Year 2006-2007 CDBG Action Plan Amendments



The City’s Fiscal Year 2006-2007 CDBG Action Plan identifies one activity, Riverside Drive Improvements, in the amount of $233,996.00.  This activity was determined ineligible and has been officially cancelled in reports to HUD but funds have not been reallocated to new activities.  The addition of these proposed new activities in the CDBG program will allow the City to address the revitalization needs of neighborhoods and will bring the program into secure compliance with HUD regulations regarding expenditure timelines and eligibility of activities undertaken.  In addition, funding for Administration expenses in the amount of $33,499.00 was not fully expended within the Fiscal Year 2006-2007 and must be re-allocated to projects.


These proposed amendments reallocate available funding (total $267,495) to activities that will benefit the citizens and the public facilities of Port Orange.  New activities include: Port Orange Adult Activity Center Facility Improvements in the amount of $132,495; Buschman Park Improvements in the amount of $100,000; and Demolition of blighted residential and commercial buildings in the amount of $35,000.


Staff recommends that Council approve the attached Resolution which will amend the City’s Fiscal Year 2006-2007 CDBG Action Plan.


Item 19 -        Requested Approval, by Resolution of Fiscal Year 2007-2008 CDBG Action Plan Amendments


The City’s Fiscal Year 2007-2008 CDBG Action Plan identifies one activity, Real Property Acquisition, in the amount of $234,242.40.  Rising vacant land prices since 2007 and the complexity of implementing this activity have prohibited action to date.  In order to comply with deadlines for encumbering and expending CDBG funding, the proposed amendments reallocate available funding to activities that will benefit the citizens and public facilities of Port Orange.  In addition to deleting the Real Property Acquisition activity, funding allocated to FY 2007-2008 Administration expenses in the amount of $58,560.60 was not fully expended within the fiscal year and must be re-allocated to projects.


The combined available funding from deletion of the Real Property Acquisition activity in the amount of $234,242.40 and redirection of Administration funding in the amount of $58,560.60 (total $301,792.60) is proposed to fund the following activities: Port Orange Adult Activity Center Facility Improvements in the amount of $267,803.00; and Demolition of blighted residential and commercial buildings in the amount of $25,000.00


Staff recommends that Council approve, by Resolution, amendments to the City’s Fiscal Year 2007-2008 CDBG Action Plan.




Item 20 -        Resolution No. 08-66 - Volusia ECHO Grant (Phase 2 Improvements Coraci Athletic Fields)


The City seeks funding assistance from the Volusia ECHO Grant program to construct ball field # 3 and install playground equipment, picnic facilities, and lighting.  The City requests $250,000.00 (50%) from the ECHO program and the City will provide a 50% match of $250,000.00.  The City has already applied for a $200,000 grant from the Florida Recreational Development Assistance Program (FRDAP) to fund the Coraci Phase 2 improvements.  The application is still pending.


Staff recommends that Council approve the attached resolution authorizing the City Manager to submit a Volusia ECHO Grant application to construct Phase 2 Improvements at the Coraci Athletic Fields.  In addition, authorize the Mayor and City Manager to execute any agreements or contracts and provide a match.


Item 21 -        Update – Innoprise Software


Mr. Thornton and I met a few days ago.  Our initial plan calls for them to be on site the first week in December to discuss the goals and measures that will be used to determine contract compliance.  The actual work will start in early January.  We did not believe that it was appropriate for us to begin the actual installation process until after the first of the year because of the holiday schedule.  Innoprise believes that it can successfully install the software within 90 days and have it operational.


The City Attorney’s Office will be working with Innoprise to develop a contract amendment related to the work.  We are hoping to have the contract amendment before the City Council on January 6. 


One of the concepts presented was to have a third party monitor the progress.  Innoprise has used this concept in other local governments.  Although we have not pursued securing a third party vendor to do the progress monitoring, the City Council indicated in June that they might be willing to use a third party vendor.  The City would want to be the employing agent of the vendor.  Does the City Council desire to have a third party vendor monitor the installation process to be sure that the benchmarks are being met as well as the goals and objectives?   





Item 22 -        Comments/Concerns from Council Members


At this time, Council Members may discuss various matters of concern.