To:                   Mayor Allen Green

                        Vice Mayor Donald Burnette

                        Council Member Bob Ford

                        Council Member Drew Bastian

                        Council Member Dennis Kennedy


From:              Gregory A. Kisela, City Manager


Subject:          Agenda Commentary for Regular City Council Meeting of

                        August 6, 2013


Date:               August 1, 2013





Item 1 -           Pledge of Allegiance

Item 2 -           Silent Invocation

Item 3 -           Roll Call




Item 4 -           Presentation of the Paul S. Buchman City Attorney Award by Frank Gummey, Florida Municipal Attorneys Association


Frank Gummey will present the Paul S. Buchman City Attorney Award.



Item 5 -           Environmental Advisory Board Quarterly Report


Suzanne Grubbs, EAB Chair, will provide the quarterly report for the Environmental Advisory Board. Steve Edgar will also be present to provide a presentation to Council.


D.   CITIZEN PARTICIPATION (Non-Agenda – 15 Minutes)





Item 6 -           Approval of Minutes


a.    July 13, 2013 – Budget Workshop


Attached are the City Council minutes from the recently held workshop. Should you have questions, please feel free to contact Robin or me.


Item 7 -           Construction Activity Report


Attached is the update on construction projects from Quentin L. Hampton Associates, Inc.  Staff recommends acceptance of the report.


Item 8 -           Request from the Volusia T.P.O. to Obligate Matching Funds for the Design and Construction of Four Sidewalk Projects


The Volusia Transportation Planning Organization (TPO) is requesting a commitment from the City that in the future; the City will obligate funds for the design and construction of these projects. Approval of the request will NOT require the City to provide funding for these projects at this time. When these projects are selected by the Volusia Transportation Planning Organization (TPO) for the design and construction phase, the City will be asked to enter into a Local Agency Program (LAP) agreement with the FDOT.  If at that time the City does not want to provide the funds, the City would have the option to not enter into the agreement.  The project(s) would remain on the TPO’s Project Priority List and could be pursued the following year if the City still supports the project.


In April 2010 and March 2011, the City Council approved match funding for feasibility studies to be prepared for the four sidewalk projects listed below. The sidewalk projects are listed in the City’s adopted Capital Improvements Plan (CIP). In August 2013, the TPO will be adopting their Project Priority List and these four projects will be ranked as follows on the Bike-Ped Project Priority List, Tier B: Projects Ready for Funding.


·         Ranked 3: Sidewalk on the south and north  side of Herbert Street from Nova Road to Jackson Street;

·         Ranked 8: Sidewalk on the west side of McDonald Road from 6th Street to Sugar House Drive;

·         Ranked 9: Sidewalk on the east side of Victoria Gardens Boulevard from Clyde Morris Boulevard to Appleview Way; and

·         Ranked 16: Sidewalk on the east and west side of Spruce Creek Road from Nova Road to Angelina Court.


The City will be responsible for 10% of the cost for these sidewalk projects if the City elects to enter into an agreement with the FDOT at that time. Based on the completed feasibility studies, the four projects combined are estimated to cost $1,002,456 (FY 14$), of which the City would be responsible for $100,255 (FY14$).


Project Nos.: OMI 016, 017, 018, & 019       Funding Account No.: 312-4300-541-31-63


Staff requests Council commit to providing the City’s local match for the design and construction cost of four sidewalk projects once they are selected by the Volusia Transportation Planning Organization.


Item 9 -           Ratification of FY 2012 Sick Leave Sell Back Program


As part of personnel cost reductions in the FY 2011 budget, the City and the PBA, PBA Lieutenants and PEA members executed memorandums of understanding (MOU’s) that suspended the sick leave sell back program and annual leave payments over the maximum cap for a one-year period.  Both programs were also suspended during this time for civil service and contract employees through changes in Chapters 3.04 and 3.05, Civil Service Policies and Procedures.  The City Manager’s Budget Memorandum dated June 10, 2010 discussed the program’s suspension for the upcoming year. 


The executed MOUs are clear that the suspension of the programs was for the period of October 1, 2010 through September 30, 2011 only.  In a memo dated July 1, 2011, the City Manager indicated that the memorandums of understanding that deferred payments for unused sick and vacation leave expired on September 30, 2011 and that the FY 2012 budget included a resumption of those payments.  The budget not only included payments for the above mentioned bargaining units, but also payments for civil service and contract employees.


When the MOU’s expired, the sell back program reverted back to the contracts and employees were allowed to sell back sick leave hours in FY 2012.  Changes to civil service regulations to re-establish the annual leave payouts were promulgated through a memorandum and although the City allowed civil service employees to sell back sick leave hours in FY 2012, the civil service language was not amended.  Emails were distributed to all employees requiring them to indicate whether or not they would be selling back sick leave hours.  36 civil service and contract employees sold back time for a total amount of $123,246.87. 


In summary, everything that I have read relating to this subject reveals that the intent was to only sunset the sick leave sell back program for FY 2011. The MOU’s for the PBA, PBA Lieutenants and PEA members were clear on this matter.  Unfortunately, the civil service rules were not in sync with the MOU’s.  Consequently, while budgeted, the sell back of sick leave was not formally authorized.  The City Council has two options to remedy this.  The first is to attempt to require the employees to pay back the sick leave they sold.  The second is to ratify, after the fact, the sell back of this leave in FY 2012.


To avoid creating a financial hardship for these employees and to avoid income tax implications, I would recommend that the City Council ratify the FY 2012 payments after the fact.  Based on discussions at the July budget workshop, the FY 2013 and subsequent year sick leave sell back program for civil service and contract employees has been discontinued and is not budgeted for FY2014.


Staff recommends ratifying the FY 2012 sick leave sell back program for civil service and contract employees in the total amount of $123,246.87.


Item 10 -        Second Amendment to the Public Improvements Agreement for the Altamira & Dunlawton-Yorktowne Properties, Case No. 11-80000011


According to the Public Improvements Agreement (PIA), a Certificate of Occupancy cannot be issued for any business within the shopping center parcel until the Yorktowne Boulevard extension and intersection improvements at Dunlawton Avenue and Yorktowne Boulevard and Yorktowne Boulevard/Taylor Road/Boggs Ford Road, and intersection improvements at Dunlawton Avenue and Taylor Branch Road have been completed and accepted by the City.


In mid June 2013, The Florida Department of Transportation (FDOT) and Volusia County requested modifications to the developers’ approved FDOT permit for the Taylor Branch Road and Dunlawton Avenue intersection. The requested modifications include relocating the Dunlawton Avenue pedestrian crossing and modifying the Dunlawton Avenue median to allow left turns from Dunlawton Avenue onto Taylor Branch Road. Left turns out of Taylor Branch Road onto Dunlawton Avenue will still be prohibited. The current approved plans have the pedestrian crossing near the I-95 on-ramp and prohibit left turns from Dunlawton Avenue onto Taylor Branch Road. The FDOT requested these modifications to improve access to a pedestrian crossing for Dunlawton Avenue (see Exhibit 1.). These modifications require the intersection plans to be redesigned and permitted as part of a modification to the approved FDOT permit. The Developer submitted the plans for the proposed modifications to FDOT on July 9th and they are currently under review.


According to the Developers’, the originally approved improvements at the intersection would have been completed before the first Certificate of Occupancy is requested. However, due to the additional time to redesign and modify the FDOT permit, the Developers do not anticipate having the modified FDOT permit issued and intersection improvements completed before BJ’s Wholesale Club request their Certificate of Occupancy in mid-August.


The language in the proposed 2nd amendment to the PIA, requires the Yorktowne Boulevard extension and the intersection improvements at Dunlawton Avenue and Yorktowne Boulevard and Yorktowne Boulevard/Taylor Road/Boggs Ford Road to be completed and accepted by the City prior to issuance of a Certificate of Occupancy for any business within the shopping center parcel; and the Dunlawton Avenue and Taylor Road intersection improvements to be completed by January 9th, 2014. All of the improvements required by the PIA are included in Exhibit 2 with the original completion timeframe and the timeframe proposed with the 2nd amendment to the PIA.


The second amendment to the PIA does not have any proposed changes to the financial guarantees referenced in the original PIA.


The Developers (Four Lanes, LLC and Dunlawton-Yorktowne, LLC) are requesting approval of the Second Amendment to the Public Improvements Agreement (PIA) for the Altamira and Dunlawton-Yorktowne Properties to allow time to complete the requested modification of the Dunlawton/Taylor Branch intersection as the result of changes by Florida Department of Transportation (FDOT) and Volusia County.


Item 11 -        Florida Power and Light (FPL) License Agreement


The property is located generally east of Nova Road, north of Discount Auto Parts (3759 Nova Road) and the Park Place Plaza plat development (Bealls shopping plaza); and west of Nova Road, north of the Countryside development.  The license area extends west to the Countryside PUD Unit XII.


The License Agreement permits the City to use the land for an underground reclaimed waterline and fiber optic conduit.


Staff recommends approving the License Agreement for the use of FPL’s right-of-way from Nova Road to City Center.


F.    FINANCE (Wayne Saunders)


Item 12 -        First Reading Ordinance No. 2013-11 – Finance Code Amendments


These amendments are needed for efficient and uniform operations regarding billing for utilities and other miscellaneous services provided by the City. These amendment resolve all conflicts related to penalties and interest on past due accounts. These amendments also create a centralized billing section which accurately describes the process for utility billing, delinquent accounts, adjustments and lien. In conclusion, these amendments will help City Staff implement and enforce the Code while making it easier for citizens to comprehend and abide by the Code.


Staff recommends approving Ordinance 2013-11 amending various section of the Code of Ordinances regarding billing for services.


Item 13 -        First Reading Ordinance No. 2013-12 – Finance Code Cleanup – Repealing Ordinance 1992-11 relating to transportation utility fees


This repeal is necessary to comply with the Florida Supreme Court holding in State v. City of Port Orange. The Court held that the City’s transportation utility fees were an unauthorized tax. This repeal will remove Chapter 74, Article IX from the Code of Ordinances.


Staff recommends approving Ordinance 2013-12 repealing Ordinance 1992-11 related to transportation utility fees.


Item 14 -        Resolution No. 13-39 – Finance Code Cleanup – Repealing Resolutions 89-43 and 95-20 relating to processing payments for utility services


These repeals are necessary to provide for a uniform operation for processing payments for utility services codified within the Code of Ordinances. These resolutions will be incorporated into the Code of Ordinances at section 2-240.

Staff recommends approving Resolution 13-39 repealing Resolutions 89-43 and 95-20.


G.   CITY ATTORNEY (Margaret Roberts)


Item 15 -        First Reading – Ordinance No. 2013-14 - 457 Retirement Contribution Cleanup


This amendment to the Code of Ordinances is necessary to allow each employee utilizing the 457 Retirement Plan to contribute the requisite amount into his/her 457 Retirement Plan in order to achieve the maximum contribution (3%) from the City.


Currently, employees can only contribute up to 5% to the 457 Retirement Plan. This codification was likely a scrivener’s error which needs to be resolved.


Staff recommends approving Ordinance No. 2013-14.


Item 16 -        City Attorney’s Report


The City Council asked that the Agenda format include an agenda item that would allow the City Attorney to report and update City Council members.




Item 17 -        7-year Audit Comments


Attached is a spreadsheet showing the external auditors’ comments that were included in the CAFR’s for each of the fiscal years from 2005 through 2012.  The first column of the spreadsheet indicates the year, comment number and comment description followed by columns for each year, indicating with an “X”, the year(s) the comment appeared.  For example; comment 2005-01 first appeared in the fiscal year 2005 audit and did not appear in the subsequent year.  This would indicate that corrective action was taken prior to the following year’s audit.  Comment 2005-02 first appeared in the 2005 audit and then continued to be included in the 2006, 2007 and 2008 reports which indicates corrective actions was not taken until 2009.  Complete audit comments are included in the annual CAFR’s that can be found on the City of Port Orange web site under the Finance Department.


Item 18 -        City Manager’s Report


This has been placed on the agenda so that the City Manager can bring items to the City Council attention and to provide information to the City Council about ongoing city activities.




Item 19 -        Comments/Concerns from Council Members


At this time council members may discuss various matters or concerns.