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HomeMy WebLinkAbout12-07-99 MINUTES OF THE OCOEE CITY COMMISSION REGULAR MEETING HELD DECEMBER 7, 1999 CALL TO ORDER Mayor Vandergrift opened the City Commission regular meeting to order at 7:15 p.m. in the Commission Chambers. The invocation was given by Commissioner Anderson, which was followed by the Pledge of Allegiance, led by Frances Watts. The roll was called and a quorum was declared. PRESENT: Mayor Vandergrift, Commissioners Howell, Anderson, Johnson, and Parker. Also present were City Manager Shapiro, City Attorney Rosenthal, City Cable Attorney Baez, Police Chief Mark, Planning Director Wagner, City Engineer/Utility Director Shira, Community Relations/Projects Director Shira, Senior Planner McGinnis, and Deputy City Clerk Gosnell. ABSENT: None. PRESENT AT IONS AND PROCLAMATIONS Presentation of Plaque to Tommie Sanders in Recognition of his Commitment to Veterans and their Families. Lester Dabbs, Jr., American Legion Veterans' Service Officer, along with several other representatives, presented Tommie Sanders with a plaque in recognition of his commitment to helping veterans and their families. Mayor Vandergrift presented Mr. Sanders with an Ocoee watch as well. Presentation of Awards for POWR Essay Contest. Kari Conley, of CBR, presented the winners of the POWR Essay Contest from Ocoee Elementary and Spring Lake Elementary. Sean Courterier, the overall winner, read his essay to the Commission. Mr. Bob Steen, representing the two cheerleader squads attending National Competition, thanked the Commission for their support, and the squad performed a cheer. Recess 7:29 p.m. - 7:38 p.m. CONSENT AGENDA The Consent Agenda consisted of: . Approval and Authorization for the Mayor and City Clerk to Execute the Non- Exclusive Temporary Easement Agreement with First Union National Bank and Authorization for Payment of $250.00 to Cover its Costs in Reviewing and Executing the Agreement. Ocoee City Commission Regular Meeting December 7, 1999 . Approval and Authorization for Mayor and City Clerk to Execute the Non-Exclusive Temporary Easement and the Non-Exclusive Perpetual Slope Easement Agreements with Elbert A. Hooks and Barbara N. Hooks and Authorization for Payment of $250.00 to Cover their Costs in Reviewing and Executing the Agreements. . Approval of Grant Application for the West Orange High School Choir in the Amount of $1,000.00 from Community Promotions Account. . Approval and Authorization for Mayor and City Clerk to Execute an Agreement with Supervisor of Elections for Use of Beech Recreation Center as Polling Place for Precinct 127. . Approval and Authorization to Use Forfeiture Funds to Purchase Equipment and Software for Orange County Sheriff's Office Records Management System. . Approval of Grant Application for the Ocoee Junior/Senior Football League Cheerleaders in the Amount of $500.00 - $1,000.00 from the Community Promotions Fund. Commissioner HowelL seconded by Commissioner Anderson, made a motion to approve the Consent Agenda as presented. Motion carried unanimously. City Manager Shapiro requested clarification on the amount of money awarded to the Ocoee Junior/Senior Football League Cheerleaders, since they had requested a specified amount. Without obiection, the amount of $1,000.00 was awarded to the Cheerleaders. COMMENTS FROM CITIZENS/PUBLIC Mr. R. P. Mohnacky, 1820 Prairie Lake Boulevard, spoke to the issues of garbage receptacles, suggesting that labels should be attached stating "this side facing curb" and suggested barbells be used to calculate the weight of cans and charge citizens by weight. Mayor Vandergrift stated that many receptacles left at the side of the road create a problem for mail carriers. COMMISSIONERS ANNOUNCEMENTS/CORRESPONDENCE Commissioner Howell . Thanked Public Works Director Smith's staff for cleaning up Vignetti Softball field . Enjoyed Light Up Winter Garden . Enjoyed the Ocoee/Winter Garden Christmas Parades - lots of fun . Sent a "hello" to Jean Grafton Commissioner Anderson . Read an e-mail received thanking the City for Payment/Scholarship Program for after school care Commissioner Johnson - none Page 2 of 11 Ocoee City Commission Regular Meeting December 7, 1999 Commissioner Parker . Announced the Ocoee Historical Commission Christmas Pageant on December 18-19 Mayor Vandergrift . Thanked the Lions Club, Cathy and Jim Sills, and staff for the Christmas Parade . Asked when the Christmas Tree would be lighted at the Withers-Maguire House. City Manager Shapiro responded that it would be done on Friday, December 17 at 7:00 p.m. during the caroling at the gazebo festivities. The Recreation Department will be taking care of the details. City Manager Shapiro . Announced the Sysco Foods/City of Ocoee Christmas Dinner for the needy would also be on Friday, December 17, at Ocoee Middle School from 4:00 p.m. to 8:00 p.m. PUBLIC HEARINGS Ordinance No. 99-37, Cable Television Franchise. City Attorney Rosenthal read Ordinance No. 99-37 by title only. Community Relations/Special Projects Director Shira reported that the ordinance is the result of many meetings and workshops, that Staff has kept in mind that with technology, the ordinance has the potential to open up other services, that the City has created an ordinance that will safeguard the citizens to the greatest extent possible, and that the City's cable legal counsel, Braulio Baez, was in attendance to respond to any questions. The Public Hearing was opened. Diane Pickett, Vice President-Public Affairs and Government Relations, and David Spencer, Vice President-Operations, both representing Time Warner Communications, discussed three issues: (1) State-of-the-Art Report; (2) Burden of Proof; and (3) City Expenses. Mr. R. P. Mohnacky, 1820 Prairie Lake Boulevard, stated that he did not have cable and feels citizens should only pay for what services they request. Attorney Baez addressed each of the three issues, stating that the State-of-the-Art Report is not an unreasonable request, that language can be improved in the Burden of Proof clause, and that the pass through of costs to the subscriber is a major issue with Time Warner. Attorney Baez further stated that Time Warner has franchises within Florida that have pass-through costs; that exposure has been minimized to $10,000, and that this is a policy decision that must be made by the Commission. Commissioner Anderson asked how the City would know what is "state-of-the-art" at any point in time, and what avenues the City has to obtain this information. Attorney Baez stated Page 3 of 11 Ocoee City Commission Regular Meeting December 7, 1999 that the City should use every means of information available to it to use as a basis for that determination. City Manager Shapiro stated that there is a governmental newsletter available, recommended that the City become a member of that group to obtain technology information, and furthermore, it is not abnormal for Leibowitz & Associates to send letters to their clients when they are aware of technology changes. Discussion ensued with regard to the Orlando area cable franchise network, most favored nations clause, burden of proof, renewal fees, application fees, state of the art requirements, roadrunner, and the telephone and internet issues. Leased access of their cable lines to other businesses is the only thing not covered under the ordinance. Commissioner Parker clarified that nothing in the ordinance prevented competition; we just don't have any at this time, and if we do, they usually get bought out by Time Warner. Commissioner Parker stated that she would like to see a monthly report from Time Warner on state of the art issues. Commissioner Howell read a call-in from Rosemary Morganto regarding the high increase in the basic cable. Commissioner Parker, seconded by Commissioner Johnson, made the motion to adopt Ordinance 99-37 with the following changes being made: in regard to the State-of-the-Art Information, that portion of the Ordinance be changed to "upon request" from the City, not required every year: in regard to in any proceeding wherein there exists an issue with respect to a franchisee's performance of its obligations pursuant to this Ordinance, the Franchisee shall provide such information as it may have concerning its compliance with the terms of the Ordinance. Any information they have that says they are complying they will give. On the last portion regarding the fees being passed on to the cable company, pass them on and figure out what to do with the $10,000 that is over the amount that can be passed through, and incorporate the changes as set forth in the Leibowitz & Associates memorandum of November 24, 1999 to Mr. Shapiro, which is part of the Agenda package. Mayor Vandergrift stated that the $10,000 is a major problem and understood that the cable company could not accept it on the basis of the federal law with regard to the 5 % cap. City Manager Shapiro stated that he felt the Ordinance should not be held up over $10,000, knowing it is an issue; however, it is not worth litigation, and suggested the City delete the language on the issue of the $10,000 and allow it to be a pass-through cost. City Attorney Rosenthal requested clarification on the $10,000. City Manager Shapiro stated that they should eliminate the $10,000 expense as a normal and justifiable expense of the negotiation that is allowed to be passed through to subscribers. Page 4 of 11 Ocoee City Commission Regular Meeting December 7, 1999 Commissioner Parker, seconded by Commissioner Johnson, made an amendment to her original motion to delete any prohibition on passing through the $10,000 to subscribers. Commissioner Anderson asked Attorney Baez if there are any other cities that have adopted ordinances such as this one. Attorney Baez stated that there are other cities in Florida, though not through Time Warner, that have adopted ordinances that say you shall not deduct this from franchise fees and shall not pass through to subscribers. City Attorney Rosenthal stated for the record of this meeting, documents shall include the Time Warner letters of December 1 and December 7, 1999 to the City Commission, and Leibowitz & Associates letter of December 6, 1999 to the City Commission. Ms. Pickett stated there are two separate issues regarding prohibition: it's not a pass through in that Time Warner would be allowed to deduct it from franchise fees. City Manager Shapiro stated that he did not say anything about deduction of the franchise fees. City Attorney Rosenthal asked Attorney Baez if there is a specific reference in the Ordinance of a strike through to eliminate any ambiguity at a later date. Attorney Baez stated that Section 57-08. Applications for Grant, RenewaL Modification or Transfer of Franchises. Subsection I., deleting the last clause, "and shall not be passed through to subscribers." and then in Section 57-09. Grant of Franchises. Subsection D., deleting the final clause, "and shall not be passed through to subscribers up to the limit of the application fee required under Section 57-08(1). Commissioner Parker, seconded by Commissioner Johnson, made a motion to adopt certain amendments on the table, and to that motion, to further revise the Ordinance, specifically in Section 57-08 to delete from the last sentence in Subsection L the phrase, "and shall not be passed through to subscribers." and to delete from Section 57-09 Subsection D., the phrase in the last sentence, "and shall not be passed through to subscribers up to the limit of the application fee required under Section 57-08(1). Motion failed 2-3, with Mayor Vandergrift, Commissioner Howell and Commissioner Anderson voting no. Commissioner Howell expressed his reason for voting negative, stating that the fear of litigation over $10,000 from Time Warner when they are charging the citizens $350,000 to $400,000 a month for cable was not right. Commissioner Anderson stated that the whole amendment was very confusing and did not understand what was being discussed. Mayor Vandergrift stated the $10,000 is the cost of us doing business and if we decide to hire an outside consultant, then it is up to the City to pay that when our Staff could be talking to them, we are paying money to fly them up here in a hurricane to be here when we are only having a first reading of an ordinance. Page 5 of 11 Ocoee City Commission Regular Meeting December 7, 1999 Janet Shira, Community Relations/Special Projects Director stated for the record that neither Staff nor City Attorney Rosenthal has the expertise to sit across the table from legal counsel out of New York City and legal counsel out of Orlando, both representing the cable company, at every meeting, and further stated that she did not feel comfortable sitting across the table from not only cable experts that deal with this issue every day, but also legal counsel, and that residents are going to pay either way - whether the City uses a consultant or not. If the City absorbs the $10,000, all the residents in Ocoee pay, regardless if they receive cable or not. If we pass that fee on to Time Warner or subscribers, then the users pay it. Mayor Vandergrift, seconded by Commissioner Johnson, made a motion to amend Section 57- 08(1) of the Ordinance to delete the last sentence, which says, "The filing fee is therefore intended to be a charge incidental to the awarding or enforcing of a franchise within the meaning of Section 622(g)(2)(D) of the Communications Act, 47 U.S.C. & 542(g)(2)(D), and may not be deducted from the franchise fee imposed in a franchise agreement, and shall not be passed through to subscribers." and to delete the last sentence of Section 57-09(D) of the Ordinance, which states, "This processing fee is intended to be a charge incidental to the awarding or enforcing of a franchise within the meaning of Section 622(g)(2)(D) of the Communications Act, 47 U.S.C. & 542(g)(2)(D), and shall not be credited against the franchise fee imposed in a franchise agreement and shall not be passed through to subscribers up to the limit of the application fee required under Section 57-08(1)." Motion carried unanimously. Janet Shira, Community Relations/Special Projects Director stated for the record what those monies allow the City to do right now with cable television - our government channel and everything else. If you start dipping into those monies, expanding Channel 9 is going to become more difficult. City Attorney Rosenthal requested clarification from Attorney Baez for the record what the Ordinance says with respect to consulting fees and whether or not those are pass throughs or deductions from the franchise fee based on the proposed amendment. Attorney Baez stated that based on the proposed amendment, they are treated as expenses that aren't incidental to the awarding of a franchise fee under the law so they count against (deducted from) your franchise fees, reducing the revenue. Commissioner Parker, seconded by Commissioner Johnson, made a motion to adopt Ordinance 99-37 to include the following changes and amendments: in regard to the State-of-the-Art Information, that portion of the Ordinance be changed to "upon request" from the City, not required every year: in regard to in any proceeding wherein there exists an issue with respect to a franchisee's performance of its obligations pursuant to this Ordinance, the Franchisee shall provide such information as it may have concerning its compliance with the terms of the Ordinance. Any information they have that says they are complying they will give. On the last portion regarding the fees being passed on to the cable company, the last sentence of Section 57 -08(1) is deleted, specifically, "The filing fee is therefore intended to be a charge incidental Page 6 of 11 Ocoee City Commission Regular Meeting December 7, 1999 to the awarding or enforcing of a franchise within the meaning of Section 622(g)(2)(D) of the Communications Act, 47 U.S.C. & 542(g)(2)(D), and may not be deducted from the franchise fee imposed in a franchise agreement, and shall not be passed through to subscribers." and finally, the last sentence is deleted in Section 57-09(D) of the Ordinance, which states, "This processing fee is intended to be a charge incidental to the awarding or enforcing of a franchise within the meaning of Section 622(g)(2)(D) of the Communications Act, 47 U.S.C. & 542(g)(2)(D), and shall not be credited against the franchise fee imposed in a franchise agreement and shall not be passed through to subscribers up to the limit of the application fee required under Section 57-08(1)," and incorporate the changes as set forth in the Leibowitz & Associates memorandum of November 24, 1999 to Mr. Shapiro, which is part of the Agenda package. With respect to the three items brought forth by Time Warner, the City has agreed to their requests by this proposed motion. Motion carried 4-1 with Commissioner Howell voting no. City Manager Shapiro raised the issue of two government channels, using the City of Winter Garden's situation as an example, and requested that Time Warner go on the record as saying that they are not going to stop the cities in West Orange from getting what they had three years ago when Time Warner bought the system, that is, both government channels, and further stated that Time Warner went on record as saying to Staff during negotiations that if the City of Winter Garden or Oakland decided they wanted both government stations, that Time Warner would agree to give it to them. Now, Time Warner is telling them they have to lose something if both stations are requested. Ms. Pickett stated that some channels, including some religious channels qualify as independents, and qualify under the "must carry" and Time Warner does not have an option to carry or not carry them. Janet Shira, Community Relations/Special Projects Director, reminded everyone that Winter Garden and Ocoee had the two channels. Ms. Pickett stated that during discussions with City of Ocoee, it was understood that both channels were requested, and that was agreed to, and could not say what channel would be removed in Winter Garden. To the extent that the channels are required under the laws to be in the basic tier of services, and all of those channels are full, Time Warner has to determine where we would put that, but have committed to the City of Ocoee that they will get those two channels. City Manager Shapiro asked what channel will be removed and will those same rights to the rest of the West Orange Community. Ms. Pickett stated that Windermere was never on the system, but it would be made available to Oakland and Winter Garden and Ocoee should they choose to ask for that in their franchise negotiations. Page 7 of 11 Ocoee City Commission Regular Meeting December 7, 1999 Recess 9:50 p.m. - 9:55 p.m. First Reading/Transmittal: Ordinance No. 99-38, Comprehensive Plan Amendment - Future Land Use. City Attorney Rosenthal read Ordinance No. 99-38 by title only. Planning Director Wagner introduced Senior Planner McGinnis, Senior Planner, and gave a brief overview of her credentials. Senior Planner McGinnis stated that the Department of Community Affairs has completed their review of the EAR and issued a final determination of sufficiency, and gave an overview of the proposed textual amendments to the Future Land Use Element of the Comprehensive Plan that address the new statutory requirements. Senior Planner McGinnis stated that she attended the monthly meeting of the Orange County Public Schools Task Force, and at that meeting, they showed a video and cited Ocoee as an example of good intergovernmental coordination with the School Board in taking the lead working with developers to locate the school sites for the School Board. Mayor Vandergrift asked if progress was being made with another site or working with the School Board on a location site for a high school, and that the water management district contacted him and stated that they have money from mitigation on the western beltway. Mayor Vandergrift also stated that he has spoken with OCPS, and that he would like to see a campus with a high school, middle school, elementary school, and park all in a shared area. Mayor Vandergrift expressed his ideas regarding charter schools. Planning Director Wagner stated that they were having preliminary discussions with OCPS regarding the Coca Cola site and surrounding areas; however, they are not formally pursuing this until after the new year with OCPS, Orange County Parks, and the St. Johns Water Management District. The Public Hearing was opened, and since no one wished to speak, was closed. Commissioner HowelL seconded by Commissioner Anderson, made the motion to approve Staff's recommendation authorizing transmittal of the amendment to the Future Land Use Element of the Comprehensive Plan to the Department of Community Affairs. Motion carried unanimously. OTHER BUSINESS Ordinance No. 99-39, Lake Johio Annexation (Case No. AR-98-11-13) (First Reading) Ordinance No. 99-40, Lake Johio Rezoning (Case No. AR-98-11-13) (First Reading) City Attorney Rosenthal read Ordinance No. 99-39 and Ordinance No. 99-40 by title only. Page 8 of 11 Ocoee City Commission Regular Meeting December 7, 1999 Discussion ensued with regard to R-1-A and R-1-AA around the lake area, lot sizes, and gated communities. Ocoee/Orange County Interlocal Agreement for Professional Parkway/Old Winter Garden Road Widening Project. City Engineer/Utilities Director Shira stated that he was available to answer any questions the Commission may have. Mayor Vandergrift requested an accounting of the cost to the City over the 2 year period at 7 % bond money for discussions with Orange County. Mayor Vandergrift, seconded by Commissioner HowelL made the motion to authorize the Mayor and City Clerk to execute the Interlocal Agreement between Orange County and the City relating to Old Winter Garden Road from Hempel Avenue to S.R. 50 and Professional Parkway. Motion carried unanimously. Design Contract with Lochrane Engineering for SR 438 Utility Relocation Project. City Engineer/Utilities Director Shira stated that he was available to answer any questions the Commission may have. Discussion ensued with regard to the appraised value of rights-of-way and relocation of city utilities within that right-of-way along SR 438. City Attorney Rosenthal and City Engineer/Utilities Director Shira explained how the city makes sure the numbers equal out so the City would have minimal, if any, out of pocket expenses, thus giving the City the benefit of the value of right-of-way which is dedicated to the public where DOT could have a strong argument that they do not have to give the City any credit for, and finally, it gives us the value of right -of-way that we have gotten the developers to give to the City. They further explained that staff has set a future precedent for State Road 50 wherein we have right of way acquired from the mall which is going to have a substantial value whenever development takes place on State Road 50, including utility relocations. Commissioner HowelL seconded by Commissioner Parker, made the motion to authorize Lochrane Engineering, Inc. to perform the work outlined in their proposal dated September 8, 1999 for the not-to-exceed amount of $58,565.00, contingent upon receipt of the check from FDOT. Motion carried unanimously. NOTE: THE FOLLOWING AGENDA ITEM WAS TAKEN OUT OF ORDER. Ratification of Education Commission's Request in Letter to Orange County Public School Staff re: Rezoning for New School. Lester Dabbs, Jr., Chairman of the Ocoee Education Commission, addressed the City Commission regarding the Education Commission's concerns with regard to three major criteria on rezoning as adopted by OCPS, stated that under every option, each school is over Page 9 of 11 Ocoee City Commission Regular Meeting December 7, 1999 capacity, and requested the Commission's approval to submit the attached letter to Dr. Buckman. Mayor Vandergrift, seconded by Commissioner Johnson, made the motion to authorize Chairman Dabbs to submit the rezoning letter from the Education Commission as attached to Dr. Buckman. Motion carried unanimously. Appointments to Boards. Citizen Advisory Council for Police Department - Reappointment of Robert McKey for term to expire January 1,2003. Commissioner Howell, seconded by Commissioner Anderson, made the motion to reappoint Mr. McKey to the Citizen Advisory Council for Police Department for a term to expire January L 2003. Motion carried unanimously. Commissioner Parker stated that she has two applicants from Sawmill Subdivision for the CACOPD, and recommended Mr. Mark Scalzo, who turned in his application first, and then consider Mr. Keller for Education Commission opening. Discussion ensued. Commissioner Parker, seconded by Commissioner Johnson, made the motion to appoint Mr. Mark Scalzo, Mr. Joel Keller, and Mr. Thomas Hendrix, Sr. to the Citizen Advisory Council for Police Department for a term to expire January 1, 2003. Motion carried unanimously. STAFF REPORTS - None COMMENTS FROM COMMISSIONERS Commissioner Parker . Thanked everyone for the Christmas Parade Commissioner Johnson . Thanked everyone for the Christmas Parade and stated that he needed help throwing the candy to so many citizens . Read an anonymous call in from the Cross Creek Subdivision regarding cable Commissioner Anderson . Thanked Mayor Vandergrift for allowing him to participate as Santa's Helper at Dillards . Asked if the City has written letters to LYNX. City Manager Shapiro reported that both the City and the Police Chief have written letters. Discussion ensued. City Manager Shapiro will instruct Staff to prepare a Resolution. . Reported that the brick road on Lakeshore is caving in, despite the asphalt repair work. . Suggested a public forum for the Y2K at the December 21, 1999 City Commission Meeting, and asked when the next Y2K Meeting was within the City. City Manager Shapiro reported that the next meeting would be this Friday, December 10. Page 10 of 11 Ocoee City Commission Regular Meeting December 7, 1999 . Read an e-mail from Jennifer Spivey regarding cable . Read an anonymous e-mail regarding garbage can labels Commissioner Howell . Requested the status of A.D. Mims/Wurst Road. City Manager Shapiro reported that it would be another 30-40 days. . Reported that his kitchen garbage can was taken after being placed at the edge of the road for garbage pick up. City Manager Shapiro suggested it be reported to Public Works. . Thanked Glad Tiding Church for all the help they do in his neighborhood. Mayor Vandergrift . Requested status of the A.D. Mims/Phyllis 3-way stop sign. City Manager Shapiro stated that a memo had gone out to the Commission on this issue. . Received a report on the speed limit on Clarke Road. . Requested without objection that the television crew come 30 minutes early for the December 21, 1999 City Commission meeting to televise Christmas caroling. . Reported that a Cross Creek Subdivision citizen contacted him with concerns due to the new road and new construction for the apartments. Mayor Vandergrift would like to see hedges installed to block vehicle lights. City Manager Shapiro requested the citizen's name from Mayor Vandergrift. . Thanked everyone for the decorations in and out of City Hall. . Thanked Public Works for mowing the lakefront without being asked. ADJOURNMENT The meeting was adjourned at 11:00 p.m. Attest: APPROVED City of Ocoee c7juMv ~ Fran Gosnell, Deputy City Clerk ,.,."' .., .~..::){ II S. Scott Vandergrift, Mayo Page 11 of 11