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Draft Min 3-8-10MINUTES REGULAR CITY COMMISSION MEETING Mazch 8, 2010 CITY HALL, 800 SEMINOLE ROAD Attendance IN ATTENDANCE: Mayor Mike Borno City Attorney Alan C. Jensen Mayor Pro Tem John L. Fletcher City Manager Jim Hanson Commissioner Jonathan Daugherty City Clerk Donna L. Bartle Commissioner Paul Pazsons Recording Secretary Nancy E. Bailey Commissioner Carolyn Woods Call to Order/Pledge Mayor Borno called the meeting to order at 6:00 p.m. Mayor Borno gave the Invocation, followed by the Pledge of Allegiance to the Flag. Approval of Minutes 1. Approval of the minutes of the Regular Commission Meeting of February 22, 2010. Motion: Auarove the minutes of the Regular Commission Meeting of February 22, 2010. as written. Moved by Fletcher, Seconded by Parsons. Votes: Aye: 5 -Borno, Daugherty, Fletcher, Parsons, Woods Nay: 0 - MOTION CARRIED Courtesy of the Floor 2. Courtesy of the Floor to Visitors. Mayor Borno opened the Courtesy of the Floor to Visitors. He welcomed the audience and explained the process for public comments. Mayor Borno recognized former Commissioner Jamie Fletcher, former Mayor Lyman Fletcher, and former Mayor Bill Gulliford who were in the audience. Jamie Fletcher, 340 Garden Lane, recommended possible actions the Commission could take regarding the Sones property development. He requested Commissioner Woods place a motion on the agenda postponing all further legally binding actions by the City with regards to the Sones property until such specific time wherein all legal disputes can be adequately resolved for everyone involved and to defer to a specific date. He further requested Commissioner Woods place a motion on the agenda requesting City Attorney Alan Jensen provide the unusual step of co-counsel assistance on the Sones project only, if requested, by the Oceanwalk Homeowners Association. He stated he believes this is warranted due to the large number of citizens who aze going to be permanently impacted by the Sones decisions. He further requested an investigation be done to determine whether Mayor Borno violated any of the Association's bylaws while acting as president of the Homeowners Association while also representing the City in legal matters pertaining to the Sones project. He further stated he shazed Commissioner Daugherty's concerns about the private meetings between individual Commissioners and the City Manager and is concerned that such meetings have possibly influenced Commission decisions regarding the March 8.2010 REGULAR COMMISSION MEETING Paee 2 Sones development so far. He stated these private meetings may have violated Florida Sunshine Law and possibly the ethical code under which our City Manager operates. He asked Commissioner Daugherty move a privileged motion to refer to an ad hoc advisory committee to investigate these private meetings. He further recommended outside legal counsel be a part of this committee, as cities have done in the past when there are potential conflicts of interest. He stated this privileged motion would grant the committee permission to investigate any written agendas kept by the City Manager, any notes taken by anyone present, information verbally conveyed during these private meetings and the procedures followed during all private meetings where the Sones project was discussed in any way. He further requested Commissioner Daugherty put a motion on the agenda to make all future meetings between Commissioners and the City Manager open to the public, well publicized and adhere to all guidelines of the State's Sunshine Law and Mr. Hanson's ethical code of conduct as our City Manager. Mr. Fletcher further requested the Commission's help in approving these actions, especially in light of the recent legal and administrative charges against former elected officials from Atlantic Beach. He gave his notes to the City Clerk as public record. Lyman Fletcher, 804 East Coast Drive, requested the Commission look at this issue more closely to find other solutions. He further stated there is a fiduciary duty for the Commission to respect the integrity of the covenants placed on the property by Mr. Bull to use that land for park purposes and resolve the title issues. Mark Tomaski, 448 Snapping Turtle Court W., referring to a letter from his attorney, stated the Estates of Atlantic Beach does not have good title to the subject property. He further stated the City of Atlantic Beach's 2009 easement from the Estates of Atlantic Beach should be treated as a nullity. He requested the Commission take some time before doing anything. Mark Beckenbach, 2210 Oceanwalk Drive W., addressed the Commission regarding the property behind his house in Oceanwalk, stating he understands the Commission just received a March 3 letter and he realizes they may not have had time to act on the letter. He stated this letter questions the title of the property. He stated this is a property rights issue from 1932. He stated the owner requested this property be used for a park, but this got lost in the shuffle of government bureaucracy. He requested the Commission do their fiduciary responsibility regarding this issue. Cindy Corey, 394 8"' Street, stated she was opposed to many parts of this development, but primarily the loss of park land. She stated the City's agreement with the developer is in conflict with the commitment to uphold our Comprehensive Plan, which upholds the preservation of wetlands. She stated she believes the citizens need to know more and the City should hold a special hearing to look at these issues and show the community that we are going to have an open forum and there is nothing to hide. She closed by reading Harcourt Bull's deed. Harold Lippes, 2920 Forest Circle, attorney representing Estates of Atlantic Beach and Michael Sones, addressed the comment made regarding the deed. He stated there was a question about successors and assigns and whether that means a successor corporation or a successor individual or a successor in title, which is what he believes it means, and that it reverts back which is what Mr. Bull and RCBS Corporation March 8.2010 REGULAR COMMISSION MEETING Pace 3 intended and so that is what should happen. He asked the Commission to keep in mind the source of the legal opinion Dr. Tomaski received. He referred to an email Mr. Beckenbach wrote to Commissioner Daugherty, from which he read a portion regarding legal opinions. Mr. Beckenbach's email stated it is the legal opinion of our legal consultants that the claim of ownership by the Estates of Atlantic Beach, on that portion of the right of way in Atlantic Beach and Jacksonville, is not valid. The email further stated a title seazch is presently underway to verify that there aze not any additional documents, other than those already in the files, that pertain to this property. Mr. Lippes stated this was a legal opinion someone rendered before they even finished a title search and would suggest to the Commission that this legal opinion is highly suspect in many respects. He stated he has heazd that a lawsuit is going to be filed against his client and stated they welcome that and look forwazd to resolving this dispute in a court of law, not in a Commission meeting or in a Folio article where people are falsely accused of corruption, because that is the type of conduct that leads to suspicion. He stated sending letters to the State Attorney's office falsely claiming that Fleet Landing transferred two pieces of property to Mr. Sones/Estates of Atlantic Beach is the type of conduct that leads to suspicion. He stated it was blatantly false and suggested they look in the public records because there are no deeds and there is no truth to it because it didn't happen. He stated the City of Atlantic Beach approached Mr. Sones about putting a sewer line through his property, who had no idea the project even existed, and he was receptive to it and negotiated contract terms. He stated the Estates of Atlantic Beach and the City of Atlantic Beach then entered into a legally valid, binding contract and that was all Mr. Sones did. Mr. Lippes stated they welcome the opportunity to debate for the democratic process to work but asked that they respect it, be truthful and resolve their issues the way they aze supposed to be resolved. William Gulliford, 75 Beach Avenue, stated his preference is that the trees in question would be preserved, however this has reached the point where it is no longer about trees. He stated this exposes the difference of our functioning as a republic versus a pure democracy that, in this case, may be tainted by misinformation and inaccuracy. He stated the City Commission voted to enter into a contract with a developer, in part motivated by the desire to protect citizens of Atlantic Beach from the potential intrusion of heavy traffic on Selva Marina Drive and to prevent the future development from being incompatible with the character of Atlantic Beach. He stated he believes the force main path was secondary and without the tree removal part there would be no contentious issue. He stated he respects Commissioner Woods° desire to protect trees and represent the interest of constituents, but he believes a line is being crossed. He stated he believes this is an attempt to replace the prior deliberations and actions by the Commission, where it belonged, and place it in a public forum and stir the public sentiment after the fact. He stated he is concerned that this approach causes the Commission to now become judicial instead of legislative and good government is not realized by mob rule. He stated our City Attorney, who has served the City for 30 years has spoken to the issue and given his legal opinion. He stated it is the City Attorney's job to give unbiased, objective professional legal opinions to the Commission to keep them and the City out of trouble. He stated you may not like the City Attorney's opinion, but since that is what he is charged to do, he believes the Commission is duty bound to abide by it. He related a past incident where this was not the case and the City was sued and it cost the taxpayers and the City a good bit of March 8.2010 REGULAR COMMISSION MEETING Page 4 money. Mr. Gulliford stated since Mr. Woodwazd is not the City Attorney he sees no merit to his opinion in this issue and although his opinion may prevail, the proper arena is a court of law. He referenced Rule 20 under Article II in our Code, which states, even if the Commission wishes to reconsider their vote on the contract, it would require unanimous vote of the Commission to do so. No one else from the audience spoke so Mayor Borno closed the Courtesy of the Floor to Visitors. Mayor Borno reported Commissioner Woods asked to propose an emergency motion which is not on the agenda. Commissioner Woods stated regarding the comments made tonight, this is a very emotional issue and the fact that they aze all here to discuss it is a good sign. She clarified that she is not asking the Commission to act as a court, judge and jury; she is asking that, while honoring the agreement we have, we delay any action on it until the courts have decided this issue. She then read her request, a copy of which she had previously given to the Commission (which is attached and made part of this Official Record as Attachment A) and made her motion as follows: Motion: Direct staff to declare this issue to be of significant community co,_ ncern that it merits designation as an emergency, to temporarily abandon all action pertaining to the Grant of Easement and Agreement with the Estates of Atlantic Beach. LLC, as approved on September 14, 2009. until all of the legal issues pertaining to ownership of the land are resolved. and pursue another TMDL pipeline path in order to stay on our targeted timeline in meeting the St Johns River Water Management District requirements and be prepared to meet all of the contractual requirements as outlined in the Agreement, at such time when all legal issues have been resolved. Moved by Woods, Seconded by Daugherty City Attorney addressed the issues stating there has been a lot of false and inaccurate information that a lot of people have relied on. He addressed the legal title to this property stating he had read Mr. Woodwazd's opinion letter dated March 3, 2010. He further stated he also received a letter dated February 11, 2010 from Mr. Lippes, and he believes it would be irresponsible on the Commission's part to just take the latest letter and say we need to totally rely on that and forget what other information we have been previously provided. He stated all of those prior documents are public records. He stated in comparing the two legal opinions, Mr. Lippes' legal opinion discusses a partition deed between members of RCBS and the Bull family, which is not even mentioned in Mr. Woodwazd's opinion. He stated he doesn't know if Mr. Woodwazd's title company missed that recorded document or if he just didn't deem it necessary to address it, but Mr. Jensen stated he believes it is very important that the members of the Bull family and the remaining surviving directors of RCBS Corporation apparently got together at some point and were parties to a partition deed, which divided that entire property among the remaining heirs of RCBS and the Bull family. The Estates of Atlantic Beach's title came through Brenda Bull, who owned property pursuant to that partition deed. He stated, secondly, there is a question in Mr. Woodwazd's opinion about the City of Jacksonville following the correct procedure in signing the deed and he cites certain statutes/ordinances from the City of Jacksonville on what is required. Mr. Jensen stated the City of Atlantic Beach has a similaz March 8.2010 REGULAR COMMISSION MEETING PaEe 5 procedure contained in our Charter where if we want to dispose of some property, we have to bring it to the City Commission to be declared surplus property and no longer needed for a municipal purpose and then it can be authorized to be sold. He stated in the case of a piece of property sold or donated to the City of Atlantic Beach which contains a reverter clause that was automatic upon the City terminating its usage as required by the deed, you don't have to go through all of that again. He stated appazently that is the opinion of the Jacksonville General Counsel when they were approached by the Estates of Atlantic Beach, who had gotten title through Brenda Bull, and went to the City of Jacksonville about Old Sherry Drive. He stated Jacksonville's General Counsel reviewed it, authorized the signing of the deed by Mayor Peyton and the Secretary of the City of Jacksonville, Neil MacArthur, who is also an Assistant City Attorney in the General Counsel's office. He stated not only did they sign it the first time, but there was a mistake in the legal description and they signed a corrected Quit Claim Deed to the Old Sherry Drive property. Mr. Jensen stated he was provided a Title Insurance Policy and the Estates of Atlantic Beach has all of that property, including Old Sherry Drive, insured for several million dollars. He stated based upon the greater weight of the evidence, which is what a court would consider, and what he has been provided so faz there is no question that the Estates of Atlantic Beach has cleaz and good title to that property. He does not believe it is fair to ask this Commission to make a decision in that regazd because they aze a legislative branch, not the judiciary. He stated his concern is the potential liability and claims against the City if this Commission were to not act on a legally binding contract. He further responded to comments made by Jamie Fletcher asking him if he was aware of the steps that then Commissioner Borno took to make sure there was no conflict of interest between him as a sitting City Commissioner and as president of the Homeowners Association. He stated all the steps he took to make sure there was no conflict of interest have been explained at a Commission meeting. He stated people today are still relying on that misinformation, recently quoted as an "undisclosed conflict of interest", when Commissioner Borno, in fact, disclosed it at a public meeting. Further he stated Mr. Fletcher also referenced the City Manager meetings and possible violations of the Sunshine Law. He clarified there is no violation of the Sunshine Law, Mr. Hanson is entitled to do that, the Commissioners aze entitled to do that, as long as the City Manager doesn't use those sessions to poll the Commissioners. He stated it is his understanding from the Commissioners he has spoken to that that has never happened. Mr. Jensen referenced Lyman Fletcher's statement that this was rammed through, stating this was a process over 1 % - 2 years and was something the Commission spent a lot of time on, including workshops. He stated the Commission has contractual obligations we have to honor, which were entered into after this Commission approved everything at a public meeting. He further stated some have suggested it go back to the City of Jacksonville and be used either as a public pazk or park driveway. He asked if the City of Jacksonville opened that Old Sherry Drive up and made it a park driveway to Hanna Park, would they be able to do that without removing any trees and wouldn't that increase traffic back there. Referring to Commissioner Woods requesting that this Commission delay action on this matter until the courts resolve the issues, Mr. Jensen stated there is no pending litigation but if there was, if it was resolved within a yeaz that would be lightning March 8.2010 REGULAR COMMISSION MEETING Page 6 speed, and we have obligations not only under our contract with the Estates but obligations that aze Federally and State mandated for the TMDL requirements. Commissioner Daugherty stated he understood Mr. Tomaski had employed Mr. Woodward as his attorney and asked him if he knew whether he or anyone he knows of in his community plan on filing a lawsuit challenging the ownership. Commissioner Daugherty stated if there is going to be a lawsuit challenging the ownership, he would be in favor of stepping back, letting the courts fight it out and then afterwazd either fulfilling the contract we have or not depending on the judgment of the court. Mr. Tomaski stated, although he has privilege with his attorney, a lawsuit is certainly not off the table and if that land becomes the property of any of them in the future, he doesn't believe you need to be an attorney to assume that they will sue. He further stated he has talked to the other people involved and people with reverter rights and believes the City is putting themselves in great jeopardy. He stated when they make their decision, although he realizes they listen to Mr. Jensen, their work has been ongoing for seven months and this document is now public record and will be used against the City at will. Commissioner Daugherty stated he wants to do the right thing and make sure we don't put the City in a situation where we aze violating a contract. He stated he wasn't on the Commission at the time and isn't saying whether he would have voted for or against the contract, but we do have a contract and aze legally bound to that contract, with the caveat of whether the Estates of Atlantic Beach actually owns the property or not, which is a question that has been brought up. He stated if they don't own the property we aze not bound to the contract, but if they do, we aze. He stated that is the whole question, is it going to be challenged in court. He believes they aze being asked to make this action with just the idea that there might be a lawsuit at some time and he would like more knowledge of whether there is going to be a lawsuit. Mr. Jensen cautioned Commissioner Daugherty he cannot sit up here and make his decisions on issues based on whether people might threaten lawsuits. Commissioner Daugherty stated he understands that and he respects the City Attorney's opinion but his job is to do what is right for the City, honor the contracts we have, and make sure the rights of the property owners are protected. He stated the City was faced with a choice of either protecting the rights of the property owners whose property backs up to Jacksonville or protecting the rights of the people on Selva Marina Drive who could possibly have a road going through from Mayport Naval Station down to the beach. He stated for him to make a decision on the motion proposed by Commissioner Woods or to amend it in some way, he would need to know whether a lawsuit is going to be filed. He believes if this goes to a lawsuit and it is decided it is not a valid contract, we can't get the trees back and he would hate to be in that position. He stated since we don't know if a lawsuit will be filed he would propose that we wait for a period of 60 days or so and give them that time to make a decision as to whether they are going to file a lawsuit or not. He asked if, in the contract, there is a time requirement for us to prepaze to do this work. Mr. Jensen stated the time will be dictated by the TMDL line. Mr. Hanson stated it would probably be 60 days, at the earliest, before we would even be ready to put this out to bid, so if someone was going to file a lawsuit to try to stop the City, it would seem prudent to him to let the engineers go ahead and keep doing their thing. Commissioner Fletcher stated he voted on the agreement because of the protection it afforded the north end of the City with the deed restrictions they were able to extract March 8.2010 REGULAR COMMISSION MEETING Paee 7 from the property owner as well as cutting off access through Selva Marina Drive and allowing it to become a thoroughfare. He stated they also limited what could be developed and built behind Oceanwalk. He stated, as far as acting on the threat of a lawsuit, we are the legislative branch of our City government. He stated the framers of the Constitution in this country made it so that judicial decisions are taken out of our hands and they cannot make their decisions based on whether or not someone is going to file a lawsuit. He stated if there is a legitimate dispute, these two parties have to fight it out in court and we are not party to that lawsuit. He stated we have a legally binding contract and need to adhere to those terms until a judge instructs us otherwise. He stated the Commission cannot sit up here and perform a judicial function and declare that contract null, void, or in any other aspect unenforceable and cannot abrogate our obligations under that contract. Commissioner Parsons stated we are mandated by TMDL and he also did not want to see this in his neighborhood, but after the agreements the Estates of Atlantic Beach agreed to, he couldn't refuse it. He stated there is an easement around the development, the agreement limits what is going to be built there and he can see it is going to be a great neighbor, which is how they have to look at it: He stated he does not appreciate receiving almost threatening calls, saying it is his responsibility. He stated he knows his responsibilities, which are to look at the City as a whole. Whether or not we are going to get sued is not what he bases his vote on, he votes on whether or not it is the right thing to do. He stated we have a contractual agreement, which is what we have to vote on. He stated he received an email from George Bull, Jr. who told him they have no rights to it, they have given that up and what we or the City of Jacksonville have done is not wrong. Mayor Borno stated anyone who believes he does things underhanded, backward and connives and colludes at any point in all the years he has been up here does not know him very well. He stated he has been upfront with everyone on all issues and will continue to be that way. He stated he has always worked to stay within the letter of the law. He stated that is not an easy thing to do and is not always in agreement with everyone. He stated he, several of the Commissioners and the City Manager bent over backwards while all of this was being researched, worked on, opinions and options being presented, to provide that information to those in Oceanwalk and the Board of Directors of the Homeowners Association who asked to be informed because a vote was coming up. He stated Mr. Tomaski, Mr. Beckenbach, Mr. Corsano were in the meeting when he provided any and all information he had to the Board so they would have the only information he had and he recused himself purposely because he knew he had to sit as a Commissioner and make a decision. He stated he was not going to get involved in any viewpoint from the Homeowners Association. He stated now the real issue is, with the best information they had as described tonight, the Commission made a decision for the best option for the whole City for whatever could be agreed to at that time in good faith. He stated the City approached the representative of the Estates and he bent over backwards to work with the City Manager. He stated once the Commission makes a decision, staff does the negotiations and any and all actions required are brought back to the Commission for open meeting discussions and votes. He stated there is a motion on the floor. March 8, 2010 REGULAR COMMISSION MEETING Pace 8 Commissioner Woods pointed out that because of Jacksonville's consolidated government, we are all part of that so we do have a say in what Jacksonville does and we should be able to be a part of the democratic process where Jacksonville is involved. Mayor Borno stated we are part of the County when they act as the County; we are not part of Jacksonville when they take action as Jacksonville. Commissioner Woods stated she does not think we are acting as a court here because she is not asking anyone to disavow the agreement. Commissioner Fletcher stated avoiding obligations under a contract is effectively asking to annul. Commissioner Woods stated she is not asking to avoid obligations, her motion says that we will be prepared to meet all contractual requirements as outlined in the agreement. She asked the City Attorney, if we delay action, what part of the contract would we not be honoring. City Attorney Jensen stated, as he understands her motion, she has asked to delay action until all legal issues pertaining to ownership of the land are resolved. Commissioner Woods stated there is no timeline in the agreement. Mr. Jensen stated our timelines are pursuant to the TMDL requirements. She stated she also asked that the City pursue another path to meet the requirements of the St. Johns Water Management District and the TMDL. Mr. Jensen stated that has already been acted on by this Commission. He stated in September, six months ago, she had the right to bring that up then. He stated she is trying to undermine an agreement of the City and an action of this Commission. Commissioner Woods stated that agreement does not say we have to use that easement, the City has the option to make other arrangements for those pipeline paths and she doesn't understand what part of the contract says we must use the easement for our pipeline. Mr. Jensen stated that is part of the consideration between the parties that is necessary for a valid contract. He explained that is also why we got a lot of concessions from the Estates of Atlantic Beach regarding their development and if we say we aren't going to honor that part of the contract and put our TMDL line through the easement, they can say they are not going to honor their part of the contract of limiting it to 38 houses, 35 feet, complying with the set back requirements of Atlantic Beach, and not connecting to Mayport Road. He further stated we would not necessarily violate the contract by not using that easement but the Commission made a decision to negotiate with that owner and approve an agreement which says that's where we are going to put this pipeline and in return we got all of the concessions. Mr. Hanson explained the engineers presented sixteen route options in December 2008, with the cheapest one being the one going through the property of the Estates. The Commission, shortly thereafter, gave the engineers a contract to do the detailed design and staff started working on that cheapest route. He further stated last summer there was a lot of public debate and the Commission delayed the decision for six weeks in order to give adequate time for public debate. During that process, he negotiated on behalf of the City for a proposed contract with the owners of the Estates and, during that process of dealing with all the members of the public, another route option came up to go through Oceanwalk. He stated the Commission was briefed regarding another possible route and the engineers were requested to get the engineering done and at the same time a lot of people had input on how to better the draft agreement with the Estates to present to the Commission. He further stated both options were presented to the Commission and the final decision was made on September 14. He stated there was no final agreement on an agreement with the Estates until the Commission approved the execution. Commissioner Woods asked for clarification that it was not that the contract agreement would not be met, it was changing that decision to use that pathway that would be the problem. Mr. Jensen stated if the Commission decided they March 8 2010 REGULAR COMMISSION MEETING Pa e 9 wanted to put the sewer force main somewhere else, he said they could do that, but the City still has their contractual obligations with the estates, so the increase in cost is going to be substantial. Commissioner Woods stated there was a $25,000 difference between the easement and the route through Oceanwalk and the cost estimates for the tree mitigation started about $80,000-90,000 and ended in the mid-$100s, although she believes it is turning out to be higher than that. She further stated she understands that with direct drilling there is no necessity to take down trees, except where pipes go in and come out and asked the City Manager if that was true. Mr. Hanson stated you can install a sewer line without taking as many trees down by boring most of the distance. She asked if that is the method we have been talking about for these pipes. Mr. Hanson stated the intention is to bid this project and leave it up to the contractor as to whether to do an open cut or a direct bore. He stated the reason they approached the Estates to begin with was that they were going to put a street along the edge of Oceanwalk, on the very property people are complaining about. He approached the developer with request to let the City put a sewer line where they were going to put the street. He stated the agreement wound up saying that in exchange for this easement the City of Atlantic Beach would cut the trees out to allow for the placement of that street. He stated this is what we had to give up in order to get all the other concessions from the developer. He concluded that it can be drilled without taking out any trees, but you can't do that and meet the terms of the contract without taking out any trees because our obligation is to remove the trees that would be necessary to ultimately put that street in. Commission Woods stated her understanding of the contract is also that if we start to use the easement, the trees come down and if for whatever reason the development never happens, we aze still obligated to keep that path clear forever. Mr. Hanson stated that was correct. Mr. Jensen stated you have to keep it cleaz to maintain our underground pipe. Mr. Hanson agreed it is preferable to be able to get in there to maintain the pipe because everything will break sooner or later and you need to be able to get a backhoe in there. He stated he understood Commissioner Woods' question and you can put the pipe in but you can't maintain it without being able to get in there. He stated we could probably cut fewer trees if all we were trying to do was maintain it to get a backhoe in there, but our agreement with the Estates is that we will take the necessary trees out to put the street in eventually. Commissioner Woods asked if it turns out through court decision that there is no clear title, would it make our easement agreement null and void. Mr. Jensen stated if they don't own the property, they can't give us an easement. Commissioner Woods stated that would not preclude the use of the rest of the property, however they deemed they want to develop it, so we would not be taking away their rights to any property that they really do have title to. Mr. Jensen stated, not that he is aware of. Commissioner Woods asked Commissioner Pazsons if George Bu11 said he was speaking for all the heirs and assigns of the RCBS Corporation. Commissioner Parsons stated no, not at all. Commissioner Fletcher stated the contract requires the City to locate the force main within the easement. He further stated if you do directional boring, you could save the trees, however, with the Estates, our contract requires that we take trees out and locate the force main within the easement so a road can be located on top. Commissioner Woods stated it says to locate it to minimize tree removal. Mayor Borno stated he believes to minimize trees is in relationship to the survey to get the engineers to do the least invasive in tree removals. He stated the engineers brought an azborist in to walk the property and help pick the route, which has to be agreed to by the Estates. Mr. March 8.2010 REGULAR COMMISSION MEETING Pace 10 Hanson stated the point of having that in the agreement is that it benefits both the City and the Estates to minimize tree removal. He stated it is a benefit to the City because we don't want to have to pay for any more mitigation than is necessary and it is advantageous to the owners of the Estates because they have described a development to look very much like the north end of Selva Marina Drive. Mayor Borno reiterated that the City Manager stated within 60 days or so we are hoping to have documents ready to work on bids and between now and then there will be no tree removal and even after that it is undetermined as to what trees would be affected. He stated it is not imminent that the trees are going down tomorrow. Commissioner Woods stated there would still be 60 days of engineering design time and expenses that could be avoided, if in the end we are not allowed to use that easement. Commissioner Daugherty stated, since this is the first time he is voting on anything pertaining to this agreement with the Estates of Atlantic Beach, he wanted to disclose that Mark Tomaski, Mr. Corsano and Mr. Beckenbach contributed to his campaign and asked Mr. Jensen if that would preclude him from voting. Mr. Jensen stated no. Commissioner Daugherty then asked Commissioner Woods if she would consider in favor of a motion that would direct Mr. Hanson not to put the project out for bid for a period of 60 days to determine whether or not a lawsuit is going to be filed and withdraw her current motion for a motion of that sort. Commissioner Woods agreed she would withdraw her motion for the assurance there would be a 60-day period before anything would be put out to bid concerning tree removal. Mayor Borno asked if this is an emergency, which is why they put so much time in this tonight to diffuse a lot of inaccurate statements and put facts on the table. Commissioner Woods withdrew her motion and Commissioner Daugherty withdrew his second. Motion: Declare this is an emergency and direct City Manager to aroceed with engineering but not to take any action including putting uroiect ua for bid that would result in any tree removal on the properly owned by the Estates of Atlantic Beach for a period of 60 days from today, 3/8/2010. Moved by Daugherty, Seconded by Woods Roll Call Votes: Aye: 2 -Daugherty, Woods Nay: 3 -Fletcher, Parsons, Borno MOTION FAILED Mayor Borno called for recess at 7:45 p.m. The meeting was reconvened at 7:55 p.m. Item $C taken out of sequence and acted on at this time. 8C. Approval of Location of Police Building. City Manager explained the presentation from the workshop and stated it is now time for the Commission to decide where to locate the new building. March 8.2010 REGULAR COMMISSION MEETING Page 11 Motion: Choose Oution No. 1 Moved by Fletcher, Seconded by Borno Commissioner Fletcher stated this option has continuity with the current location, is the least intrusive option and is the least expensive. Mayor Borno stated staff had marked where the road alignment would be and asked if everyone had had the opportunity to look at that. Commissioner Woods stated when she looks at the chart of the long-term financial plan concerning the half cent discretionary sales tax, she does not believe we can afford any of these options. She stated she believes we are leaving ourselves very short in our cash flow. She stated with all the discussion about Adele Grage and the need for upkeep and capital improvements that will be corning, and with all the other things identified in our strategic plan and the pazks projects we want to do, she does not believe we are leaving ourselves enough money in this fund to handle all of these other things we want to do. Commissioner Parsons agreed, stating he does not feel comfortable with the dollaz amount. He stated tonight he believes they aze just voting on a location, not giving them an approval to go forward. Commissioner Fletcher stated the worst thing that is going to happen tonight is that they site the building, get a set of engineered plans, put it out to bid and the bid comes back and either they are happy with what comes back and can fit it into our budget or not. He stated the worst thing is we have a set of engineered plans that a couple years down the road, if the fund builds up, we could revisit. He stated he doesn't see any harm tonight by approving the site and continuing to go forward to get engineered plans. Commissioner Daugherty stated he is not 100% sold on going from 2,900 s.f. to 13,000 s.f. He understands what we currently have doesn't work, if anything it is a safety hazard. He stated he likes some other options besides the options that have been presented, because he believes the 13,000 s.f. is just way too much for a police station. Commissioner Fletcher stated, at this point, they should just focus on getting plans they can bid out, then they can look at the cost and while it is in that process they can continue to ask these questions. Commissioner Daugherty stated there is a cost in putting it out for bid and asked if the $400,000 we are paying them right now applies to the design as well. Mayor Borno stated, although Commissioner Daugherty had good questions, he needs to remember the Commission is up here to make policy and it is up to staff to carry it out. He cautioned the Commission to not cross over the line into micromanagement. He stated the original proposal was approximately 19,000 s.f. and it was trimmed down to the current squaze footage. City Manager Hanson stated if the Commission votes to go forward staff should work with the architects very closely through this design process to try to whittle this down March 8.2010 REGULAR COMMISSION MEETING Pa a 12 as much as reasonably possible and they should instruct David Thompson to see what grants he can get for the City. Commissioner Woods asked how many people are in the police building at any given time. David Thompson replied there are approximately 44 people who work out of that building full time; the day shift could have 20-25 working, while the night shift is less. She further stated she would prefer the building stay on the east side and we size the building accordingly. She stated she would like to keep that atmosphere of low crime and safe neighborhoods by not making our police building so prominent in our most prominent park. Votes: Aye: 3 - Borno, Fletcher, Parsons Nay: Z -Woods, Daugherty MOTION CARRIED Mayor Borno thanked the architects for their time and professional presentations and wished them a safe trip home. Unfinished Business 3. Unfinished Business from Previous Meeting from Previous A. City Manager's Follow-up Report. Meeting None. Consent Agenda 4. Consent Agenda ALL MATTERS LISTED UNDER THE CONSENT AGENDA ARE CONSIDERED TO BE ROUTINE BY THE CITY COMMISSION AND WILL BE ENACTED BY ONE MOTION IN THE FORM LISTED BELOW. THERE WILL BE NO SEPARATE DISCUSSION OF THESE ITEMS. IF DISCUSSION IS DESIRED, THAT ITEM WILL BE REMOVED FROM THE CONSENT AGENDA AND WILL BE CONSIDERED SEPARATELY. SUPPORTING DOCUMENTATION AND STAFF RECOMMENDATIONS HAVE BEEN PREVIOUSLY SUBMITTED TO THE CITY COMMISSION ON THESE ITEMS. A. Acknowledge receipt of the Public Works and Utility Department Project Status Report through February 26, 2010, Utility Sales Report for January 2010 and New Businesses for February 2010. B. Approval of the Interlocal Agreement for the Distribution of 9-1-1 Funds for Call-Taker Salaries, including the authorization for the Mayor and City Manager to sign the paperwork. C. Award the contract for Design/Build Donner Park Restrooms/Storage Facility, Bid No. 0910-03 to Flint Construction Services, for Total Lump Sum Base Bid plus 10% Contingency of $49,060.00 plus Additive Alternate B for $2,220 (CDBG). Mayor Borno read the Consent Agenda. Motion: Auprove Consent Agenda Items A, B and C, as read. March S. 2010 REGULAR COMMISSION MEETING Paee 13 Moved by Fletcher, seconded by Daugherty. Votes: Aye: 5 - Borno, Daugherty, Fletcher, Parsons, Woods Nay: 0 - MOTION CARRIED Committee Reports 5. Committee Reports None. Action on Resolutions 6. Action on Resolutions A. Resolution No. 10-04 A RESOLUTION OF THE CITY OF ATLANTIC BEACH, FLORIDA ADOPTING THE CITY OF ATLANTIC BEACH STRATEGIC PLAN DATED FEBRUARY 2010. Mayor Borno read Resolution No. 10-04 by title. Motion: Apurove Resolution No. 10-04, as read. Moved by Parsons, Seconded by Daugherty Votes: Aye: 5 - Borno, Daugherty, Fletcher, Parsons, Woods Nay: 0 - MOTION CARRIED Action on Ordinances 7. Action on Ordinances A. Ordinance No. 90-10-212, Public Hearing and Final Reading AN ORDINANCE OF THE CITY OF ATLANTIC BEACH, COUNTY OF DUVAL, STATE OF FLORIDA, ADOPTING AMENDED LAND DEVELOPMENT REGULATIONS AS SET FORTH WITHIN ATTACHED EXHIBIT A, WHICH REGULATES THE USE AND DEVELOPMENT OF LAND AND WATERS WITHIN THE CITY OF ATLANTIC BEACH. SUCH REGULATIONS SHALL BE ADOPTED AS CHAPTER 24 OF THE CODE OF ORDINANCES AS PREVIOUSLY AMENDED AND ADOPTED THROUGH ORDINANCE NUMBER 90-09-211 AND CONTAINING SIX ARTICLES: ARTICLE 1 -PROVIDING FOR ADOPTION AND AUHTORITY, PURPOSE AND INTENT, NRISDICTION, AMENDMENTS, LEGAL STATUS AND CONSISTENCY WITH THE COMPREHENSIVE PLAN; ARTICLE II -LANGUAGE AND DEFINITIONS; ARTICLE III -ZONING REGULATIONS; ARTICLE IV -SUBDIVISION AND SITE DEVELOPMENT REGULATIONS; ARTICLE V -ENVIRONMENTAL AND NATURAL RESOURCE REGULATIONS, AND ARTICLE VI - CONCURRENCY MANAGEMENT SYSTEM. THIS ORDINANCE ALSO PROVIDES FINDINGS OF FACT, PROVIDES FOR SEVERABILITY, REPEAL OF CONFLICTING ORDINANCES, OR PORTIONS THEREOF AND PROVIDES AN EFFECTIVE DATE. Mayor Borno read Ordinance No. 90-10-212 by title. March 8, 2010 REGULAR COMMISSION MEETING Pace 14 Motion: Apurove Ordinance No. 90-10-212, as read. Moved by Fletcher, seconded by Parsons. Mayor Borno opened the Public Hearing. No one from the audience spoke, so Mayor Borno closed the Public Hearing. Commissioner Fletcher asked for confirmation that the changes requested at the workshop were made. Ms. Doerr confirmed the changes were made. Commissioner Daugherty showed a slide of a home with trucks parked on the lawn and asked why we aren't enforcing the Ordinance. Mayor Borno stated, yes, this was one of many Ordinances on our books and this is an issue related to right-of--way, which is something the Commission will need to discuss. He stated this has been brought up before in previous Commissions and it is not just this house, you can go through any neighborhood in this City and find people who are abusing the right-of--way. He stated there is a hard-nosed approach and there is a positive controlled approach, which the Commission needs to talk about. He stated they should consider doing this in a workshop. Mr. Hanson explained we have an Ordinance prohibiting the routine parking on grassed areas of the right-of--ways for years and he had forgotten that same Ordinance applied to private property. He stated regarding Commissioner Daugherty's question, do we need to change this Ordinance to make it illegal, the answer is no, it has always been illegal in the Ordinance. He stated the City has never enforced this since before he came, although it has been brought before the Commission many times. He stated the Commission has never said to enforce that Ordinance because it happens across the City. He stated staff is open to the Commission's instruction. Commissioner Daugherty stated he would like to get the consensus of the Commission that we start enforcing things like this, specifically in the areas they are committed to like Royal Palms and Marsh Oaks. Commissioner Parsons stated you cannot enforce it in one area and not the whole town. He stated we all have neighbors who do things we don't like, but we are very tolerable about what they do because they are our neighbors. Commissioner Parsons pointed out that in this picture, this is not the right-of--way, it is their private property. Sonya Doerr read from the Code, "Parking for residential uses shall be located within paved or stabilized driveways, private garages or carports, or such areas intended for the day-to- day parking of vehicles. Vehicles shall not be routinely parked within grass or landscaped areas of a residential lot or on grassed or landscaped portion of public right- of-ways adjacent to the lot." Mr. Hanson stated the homeowner in the picture could make this situation legal by putting gravel right where the truck sits, which is not the public right-of--way. Ms. Doerr reminded the Commission that, except for Oceanwalk, most of the neighborhoods were all platted and developed by the mid-1920s, and people didn't have three cars then. She stated we have to do the best and most reasonable thing we can do, but she agreed when you have so many cars parked in the grass areas next to the right-of--way they stay all chewed up and it's hard to make your neighborhood look like a well kept kind of neighborhood we all want to live in. She stated it would be hard to start telling people across the City you can't park in that grassy area that they, for all practical purposes, think of as their yard. She suggested we start looking at design alternatives, such as pavers. Mr. Hanson asked if they could March 8.2010 REGULAR COMMISSION MEETING Page 15 stabilize a pazking space with gravel on private property without a permit. Ms. Doerr stated, yes, if he is doing it so as not to create an impervious surface. Commissioner Pazsons asked if we are more restrictive than other cities regazding the required berms. Mr. Hanson stated we aze more restrictive than most other cities because, after the core City project, we were told by the engineers that if we have much more impervious surface then all we accomplished through the drainage improvement would not be sufficient and we would have to have more improvements. He stated we have taken the regulations from the Water Management District for onsite retention for new subdivisions and brought them down to individual house level. Commissioner Fletcher stated he believes onsite retention is confiscatory. He would like to see us make it a little more favorable for property owners. Ms. Doerr stated this update does not involve any changes to the 50% impervious. Votes: Aye: 5 -Borno, Daugherty, Fletcher, Parsons, Woods Nay: 0 - MOTION CARRIED B. Ordinance No. 31-10-09, Introduction and First Reading AN ORDINANCE OF THE CITY OF ATLANTIC BEACH, FLORIDA ADOPTING EVALUATION AND APPRAISAL REPORT (EAR) BASED AMENDMENTS TO THE GOALS, OBJECTIVES AND POLICIES (GOPS) OF THE COMPREHENSIVE PLAN AND ALSO ADOPTING A NEW MAP SERIES INCLUDING THE 2010- 2020 FUTURE LAND USE MAP; PROVIDING FOR INTENT; AUTHORITY; FINDINGS OF FACT; FINDINGS OF CONSISTENCY; SEVERABILITY AND AN EFFECTIVE DATE. Mayor Borno read Ordinance No. 31-10-09 by title. Commissioner Fletcher requested a deferral until the next meeting so he could make further research on it. Ms. Doerr stated we aze under statutory timelines and this is a process that has been going on for two yeazs. She stated this is just the first reading. Mayor Borno stated this is supposed to be completed by the end of the month. Commissioner Fletcher agreed to pass it on first reading and if he had questions, he would get with staff in the interim. Motion: Aaurove Ordinance No. 31-10-09, as read. Moved by Parsons, seconded by Fletcher. Votes: Aye: 5 -Borno, Daugherty, Fletcher, Parsons, Woods Nay: 0 - MOTION CARRIED March $. 2010 REGULAR COMMISSION MEETING Pace 16 Miscellaneous 8. Miscellaneous Business Business A. Requests from Bishop Golden to use Jordan Park. City Manager explained the requests and stated the recommendation is to allow him to set up food vending in the park with the understanding that all of the proceeds go to the church only. He further stated they recommend against providing the stage because that costs the City money to rent it from Jacksonville and there is no money budget for that. He stated the third recommendation is to allow him to use the Jordan Park Recreation Center. He stated the City does all of this with the understanding, as part of the Mayport Corridor, the City is trying to encourage a lot of community get-togethers in azeas where the communities may not be as cohesive as others. He stated Reverend Golden has been working with our staff in those efforts and staff believes this use of Jordan Pazk is different, for instance, from a church just wanting to use Russell Park to have a yard sale to raise money for a new sanctuary. He recommended the Commission approve the requests above. Motion: Approve the recommendations as noted above. Moved by Woods, Seconded by Daugherty. Commissioner Woods stated she would like to tighten down the recommendation that all proceeds go to the church by stating they would also go for youth outreach programs within the community. Mr. Hanson stated he believes what Bishop Golden was trying to do was pay for the event. Commissioner Woods stated to pay for the event or for the youth outreach programs was agreeable to her, but to just to generally go the church she was not in favor of. Amended Motion: Add that all proceeds go to ,expenses relating to this event or for youth outreach programs within Atlantic Beach. Moved by Woods, Seconded by Daugherty Commissioner Daugherty stated he is concerned about what this may open us up to. Mr. Hanson stated that was precisely why they want it put in the minutes that this related to the Mayport Corridor project, which makes it different from others who may want to sell things in the park. Mayor Borno stated this is a fund raiser for the church to get involved for youth programs to keep our children off the street, related to the initiative of getting the businesses and the churches involved in all the neighborhoods surrounding the Mayport Comdor project. David Thompson stated Mr. Golden was here earlier but had to leave and asked me to provide information about the event. He stated this is an event that has been going on for several years called "Gospel in the Pazk". He stated this is not just a fundraiser for youth programs, it is also for the church, but they have also provided services and support for other things we are doing in the community. Mayor Borno stated this is the first time they have requested to move their food sales from church property into the park. March 8.2010 REGULAR COMMISSION MEETING Pace 17 Commissioner Daugherty asked if this would cause other groups to want to do the same. Mr. Jensen stated you have to get a special event permit and it is decided on a case-by-case basis and this is specific to the work we are doing in the Mayport Corridor. Mayor Borno stated he believes we should speak to Mr. Golden about the amended motion and asked if we are doing a disservice to them by limiting this by amendment. Commissioner Fletcher stated he would like to vote on the amendment and then on the request and get beyond it. Mayor Borno stated since this is not until May 1, they could contact him first. Mayor Borno called for a vote on the amended motion. Votes: Aye: 3 -Daugherty, Parsons, Woods Nay: 2 -Borno, Fletcher MOTION CARRIED Mayor Borno stated regarding the original motion they could either vote on it or ask for it to come back after the information was provided to Bishop Golden regarding the amended motion. Commissioner Fletcher stated, since they voted on the restrictive language, he believes they should hear from Bishop Golden to see if that adversely impacts him and he would support a deferral. Commissioner Woods stated she would withdraw her motion as long as that doesn't interfere with Bishop Goiden's timeline. It was determined that it would not. Commissioner Woods withdrew her motion, Commissioner Daugherty withdrew his second. Mayor Borno requested through the City Manager that staff contact Bishop Golden and explain the change. Motion: Defer to next meeting. Moved by Fletcher, Seconded by Daugherty Votes: Aye: 5 -Borno, Daugherty, Fletcher, Parsons, Woods Nay: 0 - MOTION CARRIED Mayor Borno asked David Thompson to tell Bishop Golden that the Mayor would not contact him until David had a chance to explain the change to him but he does have his support. B. Creation of Audit Selection Committee and Amendment of Audit Policy. Finance Director Van Liere reported we need a Committee to select our new auditors and in the past it has been Jim Hanson, himself and one of the Commissioners and he is requesting that the committee be created. He stated they also need to amend the procurement policy deleting the language that prohibits our current auditors from submitting a bid for the job. March 8.2010 REGULAR COMMISSION MEETING Pace 18 Mayor Borno asked for a motion for the approval of the recommendation to select a City Commissioner to be on the Audit Selection Committee with the City Manager and Finance Director for the purpose of making a recommendation to the City Commission of an accounting fum to enter into amulti-year contract for annual auditing. Mayor Borno appointed Mayor Pro Tem Fletcher to serve on the Audit Selection Committee. Mayor Pro Tem Fletcher accepted the appointment. Mayor Borno stated the second recommendation is to amend the Audit Procurement Policy deleting the language prohibiting the same firm from performing services for more than six years. Motion: Approve the Appointment of Mavor Pro Tem Fletcher as the Commission Representative to serve on the Audit Selection Committee with the City Manager and Finance Director for the purpose of making a recommendation to the City Commission of an accounting firm to enter into amulti-veer contract for annual auditing and amend the Audit Procurement Policy deleting the language prohibiting the same firm from performing services for more than six ears. Moved by Woods, Seconded by Borno Votes: Aye: 5 -Borno, Daugherty, Fletcher, Parsons, Woods Nay: 0 - MOTION CARRIED C. Approval of Location of Police Building. (This item was taken out of sequence and acted on earlier in the meeting.) City Manager 9. City Manager A. City Manager's Report City Manager Jim Hanson stated he had a request from some of the Commissioners to get more information on what is happening in the Mayport Corridor and asked David Thompson to give an overview of the Mayport Corridor. Mr. Thompson went over the highlights including announcing there will be a Concert for Change event in Donner Park on April 10 stating he will get the details to them later. He further stated Dale Hatfield has organized a business watch training which will meet on April 24 where the businesses will come together with Navy personnel and the Navy personnel will coach and teach the businesses as well as certify them for doing business with the Navy in the future. He further stated Dale Hatfield and Timmy Johnson met with the Vineyard Church last week regarding teen programs. He stated the COPS officers are still active in the Mayport Corridor and JSO officers are also working with the kids in the corridor with various programs. He stated Code Enforcement is also doing more work in the Corridor. Commissioner Woods asked that Mr. Thompson make his presentation available as a PDF so the Commissioners could use it when speaking with the community. Mr. Thompson stated he would make this available through Mr. Hanson for anyone who would like to see it. March 8, 2010 REGULAR COMMISSION MEETING Page 19 Reports/Requests 10. Reports and/or requests from City Commissioners and City Attorney City Commissioners City Attorney A. Appointment to the Board Member Review Committee. Mayor Borno explained the Board Member Review Committee has a vacancy and moved that Jim Smith, whose term expires March 27, be reappointed for an additional term. Motion: Reaaaoint Jim Smith to Board Member Review Committee for an additional term ending March 27, 2012. Moved by Borno/Seconded by Fletcher Votes: Aye: 5 -Borno, Daugherty, Fletcher, Parsons, Woods Nay: 0 - MOTION CARRIED Commissioner Fletcher • Asked that Commissioner Woods respond to Mr. Jensen's questions by email, stating she expects other people to respond to her requests. Commissioner Woods stated she has responded. Commissioner Woods • Wanted verbatim transcript of the minutes so everyone's ideas and comments were fully reported. • Wanted to attach Mr. Lippes' (which is attached and made part of this Official Record as Attachment C) and Mr. Woodward's (which is attached and made part of this Official Record as Attachment D) opinion letters and the 1932 deed (which is attached and made part of this Official Record as Attachment B) to the minutes. Mayor Borno stated a verbatim transcript is a deep burden to put on the City Clerk's office and will tie up a lot of hours. He asked the Commissioners if they feel it is necessary. It was the consensus of the Commission not to have a verbatim transcript of the minutes. It was the consensus of the Commission to add the requested attachments to the minutes. Commissioner Daugherty • Stated people have been using the Dog Park for a while now and stated there aren't any rules posted and he would like to see some rules posted and some doggie bags. He further stated we should consider paving the area between the driveway and the entrance. Mr. Hanson stated it is not a dog park yet. Commissioner Daugherty stated he understands that but the use is already there. He stated he had breakfast with Councilman Art Graham and he reaffirm he is onboard with this. • Reported he also spoke with Art Graham about Tideviews and River Branch Preserve. He asked the Commission what their thoughts were about organizing a citizen's committee to get their input on this project. March_8, 2010 REGULAR COMMISSION MEETING Pa a 20 • Invited everyone to the art walk the third Thursday of this month, at which he will be premiering his nature photographs in front of Sticky Fingers. City Attorney Jensen • Stated although he appreciated the response Commissioner Woods gave him on one question, she didn't answer all of his questions. He stated because of some of the comments we have heard tonight, people are under the impression that violations of the law were going on. Commissioner Woods stated she cannot be held responsible for every idea that every citizen in the City of Atlantic Beach has. Mr. Jensen stated he was asking her to acknowledge the statements she made. Commissioner Woods stated all the things she brought up were because people have had questions of her about these things. Mr. Jensen stated however they got to her, if they now know they are not correct they need to address that publicly and make it known they were not correct statements. Commissioner Woods stated she addressed his entire thing point by point and did it in an email, which is a public record. Mr. Jensen stated he has her email and cited questions she didn't answer. A debate ensued and Commissioner Woods made a motion to adjourn the meeting. There was no second and the meeting continued with further debate between Mr. Jensen and Commissioner Woods. Commissioner Woods asked that the record show she was being bullied and she will not stand for it and she then left the meeting at 9:25 pm. • Suggested the Commission look at the response Commissioner Woods sent to him today and his email to her last Friday about the letter to Angela Corey which he has received no response to other than, "I will clarify it with the State Attorney's office." He stated Commissioner Woods has made these issues public and we need to have public clarification of these issues and corrections if they are wrong. He stated he does not know what she based her statements on and believes the Commission is entitled to know. Commissioner Pazsons stated since these emails have started he has requested numerous times of Commissioner Woods to not include him because he does not believe they aze safe and what they have done is started a cancer that is innuendos and so many false accusations. He stated he requested that he not receive any more direct emails from Commissioner Woods and has constantly been ignored, so much so that he is now putting a block on Cazolyn Woods. He asked Mr. Jensen if these type emails sit in the shadow of the Sunshine Law. Mr. Jensen stated, no, because they are not discussing decisions they are going to make, but believes it would be more appropriate to address any correspondence to the City Manager, the City Clerk or to him and let them distribute that. Commissioner Daugherty stated it is his understanding that if Commissioner Woods sends something it is not a violation of the Sunshine Law unless they reply to it. He stated these are things that we may vote on later on. He agreed although he understands Commissioner Woods' passion and guesses that she has other people behind her who are probably feeding her information because a lot of the words he has seen written really don't sound like they come from her. He asked if they have an March 8, 2010 REGULAR COMMISSION MEETING Page 2l option to rein her in because it has now gotten to the point where it is disrupting the meetings and is taking away from what we are trying to do for the City. Commissioner Fletcher stated his concern is the long emails that make wild accusations and asked what is the protocol for getting something like this to stop. Mr. Jensen stated he brought it up because of statements that were made that could expose the City to a lawsuit and if they are not correct we need to immediately correct them or retract them. He stated the Commission has to police themselves. Mayor Borno stated if the Commissioners want to know what their options are they should call the City Attorney and discuss that with him individually. He stated the only way to present facts that relate to this is here in a public forum. Mayor Borno • Received a thank you note regarding a hurt raccoon expressing the wonderful response received from Animal Control. • Reported on the Florida League of Mayors Fly-in meeting he attended. Adjournment There being no further discussion, the Mayor declared the meeting adjourned at 9:35 p.m. Mike Borno, Mayor/Presiding Officer ATTEST: Donna L. Bartle, CMC City Clerk ATTACHMENT A For the March 8, 2010 COAB Commission Meeting ,'? r ~~'.. In consideration of real and pending legal issues concerning the validity of property ownership of lands referenced in our easement Agreement with The Estates of Atlantic Beach: 1. Opinion letter of March 3, 2010 by Michael Woodward, J.D., M.A., M.E.D., with collaborating title research and presented in the form of a title commitment by the First American Title Insurance Co. a. Question presented: "Does The Estates of Atlantic Beach, LLC, own good and marketable title of the "Old Sherry Road" property? If not who does? i. Brief answer: "No. The Estates of Atlantic Beach, LLC, (EAB) does not have good and marketable title to the subject property and never did." ii. Who does is up to the courts to decide. b. Additional conclusions: i. That EAB does not own the property west of Oceanwalk; ii. That AB cannot enter into an agreement with EAB for an easement on property EAB doesn't own; iii. And that neither EAB nor AB can legally enter the property or make any changes to it. And where: 1. The Agreement does not have a defined timeline; however our TMDL project is on a fast tract. 2. The Agreement does not have a penalty clause related to non use of easement, so this would not lead to additional costs associated with the agreement. 3. The Agreement does not have a penalty clause at all, again no additional costs. For the March 8, 2010 COAB Commission Meeting 4. Pending anticipated lawsuits by entities with good legal standing, will tie this property up for months or even years to come. 5. Any additional time and money spent on the development of this route may be unrealized expenses of time, money and energy. 6. And lead to legal actions against and high costs to the COAB. 7. A viable, economically sound, legal issue free, second option was presented and is still available through the streets of Oceanwalk, as well as other options. 8. The commission is morally obligated to be stewards of the COAB financial and our community's health, safety and welfare and avoid additional and or excessive costs, fees and fines. 9. COAB is legally required to meet our TMDL requirements in the prescribed time. ask the commission to recognize that; 1. There are real and serious legal issues concerning the validity of property ownership of lands referenced in our easement Agreement with The Estates of Atlantic Beach, which portend lawsuits over the property's use. 2. In addition that these suits could potentially lead to the COAB's inability to access this land for our TMDL pipelines. 3. The urgency and timing of this issue is important in order to: a. meet our TMDL mandates in a timely fashion to b. save tax payer dollars by avoiding i. the loss of expenditures already committed ii. potential excess fines from the SJRWMD for failing to meet our TMDL deadlines and For the March 8, 2010 COAB Commission Meeting iii. additional engineering and design fees required to redesign the pipeline plan at an even later date 4. Recognize that per Rule 26. "The city commission may take action on a matter which, because of time constraints, has not been included on the agenda for their meeting," a. Since we received notice of these legal issues on Friday, March Stn b. And time is of the essence c. This constitutes an acceptable criteria d. To bring this issue to vote move to request to direct staff to: 1. Declare this issue to be of significant community concern that it merits designation as,an > ~°p 2. temporarily abandon all action pertaining to the Grant of Easement and Agreement with the Estates of Atlantic Beach, LLC, as approved on September 14, 2009,: 1. until all of the legal issues pertaining to ownership of the land are resolved, and 2. pursue another TMDL pipeline path in order to stay on our targeted timeline in meeting the SJRWMD requirements, and 3. be prepared to meet all of the contractual requirements as outlined in the Agreement, at such time when all legal issues have been resolved. If eventually the courts decide the Estates of Atlantic Beach has the full and unencumbered rights to this property there is no harm done, the Estates of AB development and the Agreement are still intact. I believe this is the prudent action on the part of the COAB in light of: 1. Recent legal questions, as outlined, regarding ownership~of the portion of property designated for use as the COAB TMDL pipeline route For the March 8, 2010 COAB Commission Meeting 2. Community outpouring of concern over this issue. 3. The Commissions fiscal responsibility to our taxpaying citizens. 4. Meeting our moral obligations as sworn officers of the city. ATTACHMENT B ,,.. 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To9rr~-~:, ~ ~>' ~n'ge ~8 asst ~ ~aic~~ rioint bei '` tour, bu3ad3~~ t~an~lp)feet ??~~ ea~aterly. ~~ ai~'s.~-1d 8e~t•C ' from ".the e-ou~thorest ocrner . . . 9h 9:°~ thena+~ 2vorth. lI°~ 5v~ Ae t - ~ : , td3~130 ~f'- th~ 'een. hund~ed~'twen '~ , a dia~ .:. ,"huxrdacedthe° .'~Y-e1a and s-ixt~r~eia :. ~' ~~'teft hdvi, ~ ;3a6.66),:::.feet;:. thence. on, e.. curv,e,~~to', he . ~: radi;us o~ fifty:seven hundred txent ~ - ' ~~~s.' and'.'~tY~~ive htaadrtdth~ ~ h .Y " t~ieti{nc~'.:p= . ~ Ao h' '(579. oS) feet; a . '~ undr®d 'sixty-three a.nd thirty=.three liuad~d'~bts t~63.33),; feet; :~thetzoe forth 14a 3a~ . Y- Rest, ..~ neih~edt~ ~ ei'ght hund.red., tort' ~ ~i.x ~ ' ~ 1848..71) few • t ~ geventy- ~. the r3ghx haai , hence oa a ourye to ' ~~ -~rixtp~ ~ ~ redid pt."tw~enty.-eight hundred ~ std ninety--throe, ~ (x884.93 .t~s .~4f t ) feet; ti. dle~.` . dreQths ~3~ ~tmdx'ed- ei=teen-Nand. sixty-seven hun~ . ' ' ~ . ~4t '4!7} ° ~~'l~t, ~anov fiorth ~8° 13~ West.. s ~ : aP ~v~ hi~dred .elereri .eYtd eighty h'uiadredthe . , ' E~izeo3 : fees; tAbnoe =.on a curve to the left. '' : rirdi,u~ of t~~-ei ht .h having s . •',. ~N ~d uadred. eiaty--four and ni:net ~#tbe . (.2864.93.. ' Y.- •. ni.~ ' _ ~ feet.; a~.distence ~of three- -,~~~~ _ '~., night and.: thirty-three huruixedthe - of _~.~ . est, thence ~~Horth 18° TI ~. ~sd fist a .!;-eet, a~dista.nce ~,° ~ . (166.82' ~r f tr. Y-eta and , eigizty--two- hundredths .. ) ,~! `~ th~noe on a o.'urve t ';: ... ,. _ i . , , o;~the right having ~. ~, ~`~tU t~ll`'~ ~;~ ~~ a radius of tt~.~enty-eii;ht hundred sixty-four e_nd tai .~et;~- three hundredths (494.93) feet, a dietence c-f ^~ix Y:un~ dyed twenty-nine ~:nd severs een hundredths (x29.'_7} feet; thence t:orth 3° 38' hest, a distance of eleven hundred thirty-seven and one hundredths (1137.0) feet; thence on a curve to the left having; a radius of twenty-eight hundred pixty-four r.nd ninety-three tiun~!redths ('a~4.33) feet, a distance o;' five hundred twenty-five (~.:;5) feet; thence ~?orth 14° .~p~ piest, e. distance of seven ii~.u~cired forty-six and forty-four hundredths (746.44) feet; ti;ence on a curve to the right having a radius of twenty-e1E;ht hundred sixty-four and ninety-three hundredths (2864.93} feet, a distance of three hundred ninety-one and sixty- seven hundredths (391.67) feet; thence 2~'orth 6° 16~ FTest, a distance of twelve hundred fifty-eight rnd twenty-six hundredths (1258.26} feet; thence on o. curve to the left having a radius of fifty-seven hundred twenty-nine and sixty-five hundredths (57?9.65) feet, a distance of four hundred forty-three and thirty-three hundredths (443.33) feet; thence tdorth 1~J° 42t ~7est~ a. distance of tr~enty- two and sixty hundredths (22.00) feet more or less, to the Dlorth line of Lot Three (3}, Division Three (3) of the said Andrew Dewees Grant. TO HAVE AND TO HOLD the sGrne for the sole and only purpose of a PUBLIC Park or Park Driveway and for no oilier pur- pose whatsoever. AND said party of the second hart, for itself, its successors and assigns, does hereby coventixit r~n:I a~;•ree to e.nd xith said party of the first ;.?art, its successors end ~.ssi~ne, that the said premises shal 1 be by the party of the second part opened, improved End operF~ted as a Public Par:: or Farr. Drivev~ay and for no other purpose or use rhateoever, a.nd tl:c,t said party of~the first part, its successors and assigns, shn7.I, so long 88 it or trey be owners or occupiers of any of the lands abutting; or bounding; on the paid. prernises hereby conveyed, have the full, oomplete and uninterrupted rights of access to and from the travelled portion of slid Park or Park Driveway over a.nd across the remainder thereof by such automobile roads and by such v°e.lss or other approaches for pedestrians, animals snd vehicles as to it or them may be deemed necessary or d.esir~:.ble, which easements ere hereby expressly reserved from this conveyance; PRGVIDED, HOREVEA, that said Park or Park Driveway shall not be used by i ealri pa.~t i o'' ;:::c its L nrs^t, its nuccessora or aesi-;n~ , !'or •;. • ~ .~si- nees truckir4' L•y motor vei:icle or otiyerwiae or for nny :,tier •~ur_ Bose trat mi~;;ht interfere with its use as a public Perk or Park Driveway: i-IiD ~Rc,VIllED AL.7AY5, and t's.ese presents az~t u*~on this oaprese condition, that i ' Eaid Prernisas shall cea::e to ~~e used end. ma.ir:tained as a PUBLIv^ PARIr or PA:2K. DRIVEFIAY then acid premises she,Il, i~iediately, or thereafter, at the eleotion of tine party of the first part, revert to the party of the first paxt, its succes- eore and ~saigns, whereupon title tilEreto si.all revert i:1 it or them, all right, title, interest ai:d estate of the na.~ty of the second part, its successors and assigns, therein shall iii^edie.i;ely cease ~an~i determine a.nd said party of tiie first r;1rt, its auccee- sots and assigns, shall have the r f, _ ir,r.t to re enter upon s~.id ~ pre~nisc:e anti retake possession thereof, arythinu in these presents ~ to tiie contrary notwit:zstanding. IN ~fITi1ESS ~:~R%OF, t:_e sa.id party of the first part has caused t:.eQe presents to be signed in its mane by its President anti its corporate seal to be a°fixed, attested by its Secretary !~ tr:e da;/ and. year above written. a Signed, sealed and delivered R- -S CORpUr'tATIU2d in tiie pze ice , By _ ~p -- Its PreBid it. ~' ---_ Secretar -- _~ J V~ ~J~v~, '~, ~ b.. a .? l.. ,,~. ,~ 1l ~v __ ~'y V Yr~Z~~ ~~ ~tt~ 1~~~~ Paci: 1 STATE OF FLORIDA CovNrY op DWAL ,.. Before me, a Notary Public in and for the State and County aforesaid, on this day personally appeased H,AROOURT BULL and Wm. H. ROCiEA9 to me Pell >tinown .and )mown by me to be President and Secretary of R-O-B-ad CORPORATION a corporation, and the persona who executed the foregoing instrument ad 'such President .and Secretary thereof; and they severally acknowledged to.and before me that they executed the same as such President and Secretary, respectively, for the uses and purposes therein expressed by due and regular corporate authority, and,ahat the seal. attached thereto ~e the corporate sea! oP said corporation, that it wa8 attached thereto by due. and' regular corporate authority, and that .said .instrument is the free act and deed of auch'.corporation fur the uses .and' purposes therein expressed. WITNESS my hand and official seal at JaaksOnvi ].le State and County aforesaid, on~~this... l ~..~ ~Y of ~ r~,~,~x• A. D. 19 32 . ,• ,"'; !~,~' f. ; ~ . Notary Public, Stato and County Aforesaid. .a ~a, .. U1% : , 1.:. My commisalofi ex ires .............._:-{. ,~.~..._...~...t~~....:.. ~.,._..~__....._.._ r4 ~ 'r..t..,`'~ ~ r .,.+! ~...`,~ ~, ~ ,~ .~A FuEnJAM 15.1932 ' ~ T ! ~ • +~~~~'IX.OCf( ~ ~ RECORDED IN THE PUBUG RECURD~ yc ~ ~"'~;1i, ' ' ~~~~r,ROR1DA, IlV THE BOON AND-PACE NOTED A30YE. J,~r,~, ; .;; ~ ~LERK CIRCUIT CUURT _ ~~. ~,` ATTACHMENT C LIPPES & BRYAN, P,A, ATTORNEYS Al LAW 800 WEST MONROE STREET JACKSONVILLE, FLOf:IDA 32202 Harold S. Lipper Mark C. Bryan February 18, 2010 Alan C. Jensen, Esquire 935 North Third Street P.O. Box 50457 Jacksonville Beach, FL 32240-0457 Re: Estates of Atlantic Beach, LLC Dear Mr. Jensen: TELEPHONE: (904) 633-8/81 f-ACSIMILL (904) 633 75YC) This is in follow up to the letter I sent you on Tuesday. On the first page of that letter I stated representatives from the City of Atlantic Beach ("COAB") contacted the Estates of Atlantic Beach ("EAB") in or about June 2009 concerning placement of the sewer main on EAB's property. I believe the initial contact was actually in April 2009. Also, in the second paragraph on the third page of the letter I referred to a letter Mr. Sones sent to the City of Jacksonville exercising EAB's rights under the reverter clause. mistakenly stated that he sent the letter on February 10, 2010. The letter was actually sent on February 10, 2005. A copy of the letter is enclosed. I apologize for the mistakes. I was hoping to obtain a copy of Commissioner Woods' letter to the State Attorney's Office so I could respond or comment if I thought it was necessary. On Monday night Paul Harden sent an email to Commissioner Woods asking for a copy of the letter. Commissioner Woods responded by email on February 16 at 11:54 a.m. stating she had furnished Donna Bartle with a copy of the letter. Ms. Bartle responded to Commissioner Woods at 2:27 p.m. stating, "I did not get a copy of the letter to the State Attorney, Angela Corey, so I am unable to provide it to anyone. I sent you a separate email earlier today asking you for it again." Copies of the emails are enclosed. know Drew Dixon from the Shorelines Newspaper has a copy of Commissioner Woods' letter because he read a few excerpts to me over the phone. He could not send me a copy because of the newspaper's policy. I find it interesting that Commissioner Woods' letter promptly found its way to the newspaper but was not promptly furnished to her fellow Commissioners or anyone else with the COAB. Please send me with a copy of Commissioner Woods' letter if and when you receive one. It appears Commissioner Woods is more concerned about publicizing baseless claims of alleged misconduct than discovering and publicizing the truth. Call me or write if you have any questions. Very truly yours, ~ ~1,/~ l ,. Harold S. Lippes HSL:msd Enclosure cc: Mayor Mike Borno COAB Commissioners Mr. Jim Hanson Paul Harden, Esq. 2 MICHAEL SONES 60 Ocean Boulevard Atlantic Beach, FL 32233 Telephone (904) 246-9593 Facsimile (904) 246-9966 February 10, 2005 Robert H. Williams, Jr. Chief Real Estate Officer City of Jacksonville, Room 1204-City Hall Annex 220 East Bay Street Jacksonville, FL 32202 Re: Old Sherry Road Dear Mr. Williams: I am a principal of the Estates of Atlantic Beach, LLC ("EAB") which owns a twenty-seven acre parcel of property in Duval County. For your reference, the property is highlighted in yellow on the enclosed map. The residential development immediately to the east of the property is the Ocean Walk development in Atlantic Beach. Most of the vacant property north of the EAB property is Hanna Park. Although it appears that there is a road on the eastern edge of the EAB property, (highlighted in pink on the enclosed map) the road exists in name only. It has not been maintained or used for many years. The road appears to be an extension of Selva Marina Drive but it is actually called Old Sherry Road as shown on the enclosed survey. At one time, the EAB property was owned by R-C-B-S Corporation which was owned and controlled by one or more members of a family with the last name of Bull. The property stayed in the Bull family until it was purchased by EAB from Brenda P. Bull in August 2003. Old Sherry Road was created because R-C-B-S Corporation executed an "Indenture" on January 12, 1932 pursuant to which R-C-B-S granted and sold to the County Commissioners of Duval County, the property which became Old Sherry Road. Enclosed is a copy of the indenture along with a copy of a survey which depicts the property conveyed pursuant to the indenture. The indenture includes a reverter clause on the last page. Specifically, the reverter clause states in relevant part that, "if said premises shall cease to be used and maintained as a public park or park driveway then said premises shall, immediately, or thereafter, at the election of the party of the first part, revert to the party of the first part, its successors and assigns, whereupon title thereto shall revert in it or them, all right, title, interest and estate of the party of the second party, its successors and assigns, therein shall immediately cease and determine and said party of the first part, its successors and assigns, shall have the right to re-enter upon said premises and retake possession thereof, anything in these presents to the contrary notwithstanding." As the successor to R-C-B-S Corporation, the Estates of Atlantic Beach, LLC hereby elects to exercise its rights under the reverter clause and to take title, possession and control of the property. Although it would appear the Old Sherry Road property reverts back to EAB as a matter of law, I would appreciate aQuit-Claim Deed from the City of Jacksonville so that the public records will be clear concerning ownership of this property. I am sending a courtesy copy of this letter directly to Rick Mullaney for his consideration. Please respond directly to my attorney who is Paul Harden, 1301 Riverplace Boulevard, Suite 2601, Jacksonville, Florida 32207. His telephone number is (904) 396-5731. Thank you. Very truly yours, Michael Sones MS:msd cc: Pau! Harden Harold S. Lippes ~rom: Paul harden [pau]_harden(c~),bellsouth.net) Sent: Monday, February I5, 2010 7:29 I'M 7 0: Wouds, Carolyn Subject: Carolyn, l was asked to opine nn a letter to the state attys office. Would you provide a copy to me so I can deal with the specific comments. Thank you. Paul Harden Sent from my iPhone -----Original Message----- From: Woods, Carolyn Sent: Tuesday, February 16, 20] 0 l 1:54 AM To: Paul 1-Iarden; Bartle, Donna Subject: PEE: Paul, I have forwarded that on to our city clerk, Donna Bartle. She will send you a copy I'm sure. Carolyn 241-8973 From: 'Garde, Donna" <dhussey(cr,coab.u5> Date: February 16, 2010 2:27:45 PM ES7' To: "Woods, Carolyn" <cwuodtil~r)c;~ab.us> _ _ _._. Cc: "pa.ul_hardcn(u~bellsouth.nct" <paul_hardcn~d),hel Isouth.nct Subject: RL+'.: Cr>nlcnissioner Woods, 1 did not get a copy of the letter to the state attorney, Angela Corc:y so 1 am unable. to provide it to anyone. I sent you ~~ separate ernail earlier- iodayY asking you for it again. 'Thanks, 1-)onna LIPPES 8~ BRYAN, P.A. AIIOhNI YS nl I AW 800 WEST MONROE: 511~'FFf JAC~KSONVII t E, FLOKIDA :~~?0 r f(arol<i `i. Lip~es ,~,1:.n k <:. BrVan February 16, 2010 Alan C. Jensen, Esquire 935 North Third Street P_O. Box 50457 Jacksonville Beach, FL 32240-0457 Re: Estates of Atlantic Beach LLC Dear Mr. Jensen: I f I f FI ICJtdI j~~;' :', l represent the Estates of Atlantic Beach, LLC ("EAB"). I am writing to address the false accusations and misleading suggestions of improper conduct related to EAF3's acquisition of the Old Sherry Road property and its contract with the City of Atlantic Beach ("COAB"). The accusations and suggestions have been made with a deliberate disregard for the truth and have hurt innocent people. It is time for everyone involved to focus on the facts and put these issues to rest. I. EAB's Contract with COAB At the beginning of the Commission meeting on Monday, February 8, 2010 the City manager accurately described the history leading up to COAB's contract with EAB allowing the City to runrts sewer main through EAB's property. Due to current market conditions, EAB has no plans to develop its property in the near future. After engineers retained by COAB recommended running the sewer main through EAB's property, COAB representatives contacted EAB in or about June 2009 to discuss the issue. Prior to that time EAB had no knowledge of the project. After a short negotiation COAB and EAB agreed to proposed contract terms. Commissioner Woods apparently contends that discussions between the Gity manager and representatives of EAB concerning the proposed contract violated the sunshine law. In light of Attorney General Opinion AGU 90-17 {copy enclosed) I cannot understand the basis for her accusations- Nevertheless, the members of EAB are private citizens who are not subject to the sunshine law. EAB plans a future development on the property and agreed to let COAB install the sewer main along the planned roadway on the condition COAB clears the trees. In exchange, EAB agreed to, (a) limit its development to 38 home sites. (b) limit height of the homes to 35 feet and (c) never allow access to the property from Mayport Road. These proposed contract terms were discussed at several Commission meetings. Following a discussion and debate, the City Commission voted to approve the contract on September 14, 2009. There is no basis for accusations or suggestions of misconduct because there was no misconduct. A few homeowners on the west side of the Ocean Walk development inclijding Mr. Mark Beckenbach and Dr. Mark Tomaski oppose the contract between EAB and COAB. On February 10, 2010, two days after the February 8, 2010 Commission meeting, Mr. Beckenbach sent an email to Commissioner Daugherty (copy enclosed}. He questions why COAB "seems" to be working with EAB instead of the citizens. The City manager described the alternatives for the sewer main placement at the recent Commission meeting and explained why running the sewer main through EAB's property is the best alternative for the citizens of Atlantic Beach. As stated earlier, the decision was made after consulting with engineers retained by COAB and after considering all viable alternatives. It seems the only reason for opposition to the contract is COAB's contractual obligation to remove trees from the planned roadway on EAB's property. This should not be a significant issue when you consider that EAB would have removed the same trees to construct its road. At the February 8, 2010 Commission meeting and in his February 10, 2010 email Mr. Beckenbach suggests that COAB install its sewer main on EAB's property but refrain from removing the trees as required by the contract until some unspecified time in the future because there is no time requirement in the contract for removal of the trees. Please inform the Commission that one of the basic rules of contract interpretation in Florida is that a contractual requirement with no specified time of performance should be performed within a reasonable period of time. EAB and COAB clearly contemplated removal of the trees at the same time as installation of the sewer main. t assume COAB contemplates installing the sewer lines by open cut instead of directional drilling which means the trees will have to be removed first. As an excuse for his proposal Mr. Beckenbach disingenuously claims that EAB's ownership of the Old Sherry Road property is in question. The property was legally conveyed to EAB by the City of Jacksonville {"COJ") in 2005. Neither EAB nor COJ has ever questioned the validity of the transaction. I will address this issue in detail in section II below. According to his email Mr. Beckenbach was insulted at the recent Commission meeting when you compared the City Commission's approval, over your objection, of the Ocean Walk development many years ago to the City Commissions approval of the contract with EAB, aver Mr. Beckenbach's objection, because he does not consider them analogous. Mr. Beckenbach missed your point. COAB has rules and policies for conducting City business which must be respected. You opposed development of Ocean Walk but respected the rules and the process and accepted the City Commission's decision approving it. Similarly, the City Commission followed the rules and the process and voted to approve the contract with EAB. Even though Mr. Beckenbach and a few others disagree with the City Commission's decision they should respect and accept it. 2 tl. EAB's Acquisition of the Sherry Road Property EAB purchased its property west of the Ocean Watk development from Ms. Brenda Butl in 2003. A company called R-C-B-S Corporation previously owned the property. The title history includes an "Indenture" from 1932 pursuant to which R-C-B-S Corporation conveyed the Old Sherry Road property to COJ. A copy of the "indenture" is enclosed. R-C-B-S is referred to in the Indenture as "the party of the first part". The indenture includes what is known as a "reverter clause" which states, "If said premises shall cease to be used and maintained as a public park or park driveway then said premises shall, immediately, or thereafter, at the election of the party of the first part, revert to the party of the first party, its successors and assigns, whereupon title thereto shall revert in it or them, alt right, ti#le, interest and estate of the party of the second part, its successors and assigns, therein shall immediately cease and determine and said party of the first part, its successors and assigns, shall have the right to reenter upon said premises and retake possession thereof, anything in these presents #o the contrary notwithstanding." EAB's right to reclaim title, possession and control of the Old Sherry Road property was apparent to me when 1 read the reverter clause. However, before advising EAB to exercise its rights under the reverter clause I reviewed the surveys, the title history and pertinent case taw. After explaining to Mr. Sone's why EAB was entitled to reclaim the Otd Sherry Road property, t drafted the fetter for Mr. Sones' signature which he sent on February 10, 2010 to COJ exercising EAB's rights under the reverter clause. The matter was referred to a Lawyer by the name of Suzanne Howard at the Genera! Counsel's office. Ms. Howard and {exchanged information and met on at least one occasron. Ms. Howard and members of the General Counsel's office reviewed the same documents and information t reviewed and concluded like I did that EAB had the right to reclaim the Old Sherry Road property pursuant to the reverter clause. Ms. Howard eventually informed me COJ agreed with my analysis and asked me to prepare a Quit-Claim Deed which was subsequently executed by Mayor Peyton. FHB acquired a title insurance policy for the property. The title insurance company examined the pertinent documents, including the title history, and reached the same conclusion about EAB's rights under the reverter clause. They issued a title insurance policy insuring EAB's title, including title to the Old Sherry Road property. Remarkably, almost five years after COJ conveyed the Old Sherry Road property to EAB, people are making false accusations about misconduct including "corruption" and dirty deeds". In his February 10, 2010 email to Commissioner Daugherty, Mr. Beckenbach states that according to his °legal consultant" EAB's ownership of the Old Sherry Road property is not valid. He then states, "A title search is presently underway to verify that there are not any additional documents, (other than those already in our files), that pertain to this property." A credible lawyer or "legal consultant" would not render an opinion about the validity of EAB's ownership interest in the Otd Sherry Road property without conducting a title search. If a lawyer has tru{y expressed such an opinion as Mr. Beckenbach 3 claims, why doesn't he identify the lawyer and why haven't we seen an opinion from the lawyer? I do not believe any lawyer would render an opinion about the validity of EAB's ownership interest without conducting a title search. I find it interesting that at the end of his email Mr. Beckenbach advises Commissioner Daugherty to contact Dr. Tomaski, not his so-called "legal consultant", concerning any legal issues. Dr. Tomaski's lawyer is Michael Woodward. 1 recently received a letter from Mr. Woodward (copy enclosed] stating that he is investigating whether it was appropriate for COJ to convey the Old Sherry Road property to EAB. I called Mr. Woodward after receiving the letter. He told me he had not conducted a title search and did not have a copy of the partition deed pursuant to which members of the Bull family conveyed the property in question to Brenda Butl. Mr. Woodward said he does not believe a successor in title to R-C-B-S can enforce the reverter clause without a writing specifically assigning that right. f disagree with Mr. Woodward. ft has always been my opinion (and still is) that the term "successors and assigns" in the 1932 Indenture means a successor in title and therefore runs with the land. Obviously the General Counsel's office agreed with my assessment and so did the title insurance company. In 1948 the Florida Supreme Court decided the case of Richardson v. Holman, 33 So.2d 641 (Fla. 1948]. A copy of the case is enclosed. The case involves a piece of property conveyed to the Tampa and Sulfur Springs Traction Company in 1910 by an individual by the name of Eugene Holtsinger. The deed included a reverter clause stating that in the event the property is no longer used for railroad purposes title to the property shall revert to and vest in Eugene Holtsinger and his heirs and assigns. The Plaintiffs/Appellants sought to enforce the reverter clause as successors in title to Holtsinger. The Supreme Court stated, "The Appellants having by mesne conveyances become successors in title..... instituted suit in ejectment to recover title and possession of the premises." The Florida Supreme Court concluded the Plaintiffs/Appellants could enforce the reverter clause stating, "It is accordingly our view that Holtsinger's deed to the traction company reserved a reversionary interest in the lands in question which he conveyed to Henderson and Gaither and they in turn assigned it to their successors in title". Similarly, R-C-B-S Corporation conveyed the Oid Sherry Road property to the City of Jacksonville and reserved a reversionary interest in the land which was assigned to EAB as R-C-B-S Corporation's successor in title. could furnish additional case taw supporting EAB's position but l do not think it is necessary. I concluded EAB was legally entitled to enforce the reverter clause as the successor in title to R-C-B-S Corporation. The General Counsel's office agreed with me and so did the title insurance company. Title to the Old Sherry Road property was conveyed to EAB in 2005. I am confident people can find lawyers to express conflicting opinions about the legal basis for many transactions which occurred five years ago but it does not render the transaction invalid and certainly does not mean the transaction involved misconduct. It would just mean same lawyer reached a different opinion than me, the general counsel's office, and the title insurance company. It would have no legal consequence, no other consequence and no other meaning. 4 III. The Folio Article On February 2, 2010 an article about the EAB development was published in Folio Weekly by Susan Cooper Eastman. At the beginning of the article Ms. Eastman refers to a June 2004 letter written by attorney Paul Harden on behalf of EAB to Jacksonville Mayor John Peyton and others. She criticizes Harden for mentioning in his letter that EAB's property could be used for a mobile home park or a high rise residential building. The articles states, "By floating such odious potential uses, he made his real proposals seem more palatable. In the same letter, Harden explained that Sones did not want to build mobile homes or high rises. He wanted to build an upscale, low-density development. In order to build a project compatible with the community, however, he would need certain concessions. In the end, he got them and more." In his June 2004 letter Mr. Harden requested three concessions for EAB. First, he asked COAB to annex the EAB property into Atlantic Beach. Second, he asked COAB to extend Selva Marina Drive 100 feet. Third, he asked COJ to formally close Old Sherry Road. Ms. Eastman's statement that EAB "got" the concessions Mr. Harden requested in his letter is false. EAB did not (and has not} received any of the concessions -not one. Ms. Eastman's deliberate disregard for the truth, including false accusations about "dirty deeds" and "corruption" facilitated her efforts to draw the public's attention by publishing a scandalous article. With respect to the agreement between EAB and COAB the article states, "The scope, speed and brazenness of the dea! have left some residents feeling like they've stepped to the other side of the looking glass." Contrary to Ms. Eastman's statement, the transaction between COAB and EAB was discussed at several Commission meetings, including the July 27, 2009 meeting. It was approved at the September 14, 2009 meeting. There was more than ample time for the public and the Commissioners to comment on and debate the proposed contract. Ms. Eastman ignores the advantages of running the sewer main through EAB's property. It is easier and less costly to install a sewer main on raw land instead of developed property which requires directional drilling under roadways and driveways. She also ignores the significant concessions COAB obtained from EAB pursuant to the contract. Ms. Eastman describes conveyance of the Old Sherry Road property to EAB under a section in her article called "Dirty Deeds". At the end of her article Ms. Eastman quotes Dr. Tomaski who said, "It started out as trees, but it is now about the corruption." Ms. Eastman's article was disingenuous and deliberately false. The false suggestions and false accusations made by Ms. Eastman and Dr. Tomaski have damaged innocent people. 5 IV. Credibility of Public Officials recently learned that Commissioner Woods sent a five page letter to State Attorney Angela Corey asking for an investigation relating in some way to EAB's contract with COAB and/or its acquisition of the Old Sherry Road property. i do not have a copy of the letter but I am told Commissioner Woods identified herself as a COAB Commissioner so !assume COAB has a copy. Since t have not read the letter i cannot comment on it except to reiterate what 1 have already stated. There was no misconduct and no basis whatsoever for anyone to even suggest there was misconduct involving these transactions. According to the discussion at the February 8, 2010 Commission meeting Commissioner Woods atso sent an inquiry to the St. Johns River Water Management District concerning EAB's permit application. She identified herself as a COAB Commissioner even though the matter was not brought before the Commission. Why would a City Commissioner from the City of Atlantic Beach question a permit for a development in Jacksonville without any authority from the Commission? Why would a City Commissioner from the City of Atlantic Beach ask the State Attorney to investigate transactions without authority from the Commission -particularly where there is no basis whatsoever to suggest misconduct or criminal activity? At the recent Commission meeting Commissioner Woods professed her concern about the public's perception of po{iticians and stressed the need for openness and transparency. Despite her professed concern she deliberately contributed to the public's mistrust by sending a public email stating that COAB is conducting its business illegally. She has also intentionally interfered with EAB's rights under the false pretense that she was acting in an official capacity- Instead of respecting the legislative process, including the very rules she is obligated to honor and uphold, Commissioner Woods apparently feels she can disrespect the process and the rules when it yields a result she does not tike. Her conduct is unethical and may violate State ethics laws. After reviewing the Folio article and emails and from listening to the dialogue it seems people regard EAB as synonymous with Michael Sores. Mr. Sores owns a minority interest in EAB. Mr. Sores' impeccable reputation for trustworthiness and integrity is well deserved. The false accusations and suggestions such as those made by Dr. Tomaski, Susan Eastman and others are disturbing to Mr. Sores, his wife and his children. There has not been any misconduct by Mr. Sores or anyone else related to these transactions. Falsely accusing people of misconduct, illegal conduct, corruption, etc. should not and will not be tolerated. At the February 8, 2010 Commission meeting Commissioner Daugherty also expressed concern about the public's perception of their elected officials and the need for transparency. He also stated he would have voted against the contract with EAB because he favored the Oceanwalk option. However, on August 19, 2009 Mr. Daugherty sent a letter to the editor of the Beaches Leader. A copy of his letter is enclosed. He applauded the Commission for negotiating a contract with EAB, (a} preventing the property from being developed for high density housing, (b} restricting the height of homes constructed on the property to 35 feet, (c} preventing a connection 6 between Mayport road and Selva Marina Drive, and (d) requiring EAB to seek annexation of its property into Atlantic Beach. Mr. Daugherty stated in his letter to the editor, "t am glad t live in a country where capitalism and a person's individual property rights are still protected. Property rights - just as other rights, such as free speech -came with liabilities as well. I would much rather protect those rights and live with the small liabilities than destroy those rights atl together. I am glad that our city government chose not to enter into a lawsuit that they knew they would lose. Instead, they worked with the property owner and came to a compromise that protected the future of the Selva Marina and Atlantic Beach Community." The public loses faith in an elected official who writes a letter to the editor in August endorsing COAB's contract with EAB and tells the public six months later he would have voted against the contract if he had been on the Commission at the time. The citi2ens of Atlantic Beach deserve representatives who are people of integrity and conviction who stand up for what they believe in -not flip floppers who say whatever is politically expedient in the moment. V. Conclusion The City Commission's vote to approve the contract between COAB and EAB should be accepted, even by those who oppose it. The rule of law, the legislative process and property rights must be respected. It is time for the people who oppose the contract between EAB and COAB to respect EAB's property rights, respect the legislative process and accept the truth. Thank you for taking the time to read this. Please call or write if you have any questions. Very truly yours, _~ ~- y., Harold S. Lippes NSL:msd Enclosure cc: Mayor Mike Borno COAB Commissioners Mr. Jim Hanson 7 ATTACHMENT D KEYSER & WOODWARD, P.A. ATTORNEYS AT LAW POST OFFICE BOX 92 501 ATLANTIC AVENUE INTERLACHEN, FLORIDA 32148 TIMOTHY KEYSER, J.D. MICHAEL W. WOODWARD, J.D., M.A., M.ED. 03 March 2010 Dr. Mark Tomaski 448 Snapping Turtle Court W Atlantic Beach FL 32233 Re: Ownership status of "Old Sherry Road" parcel Dear Dr. Tomaski: ~` ,'r TELEPHONE 386-684-4673 FACSIMILE 386-684-4674 You asked me to research the title acid ownership of a parcel of real property, sometimes referred to as the Old Sherry Road property, which is located adjacent to your real property and is described in a July 2005 Corrective Quit-Claim deed from the City of Jacksonville to The Estates of Atlantic Beach, LLC. (Recorded at O.R. Book 12660 Page 465.) I have accordingly reviewed available records and have also reviewed the results of title research that was conducted at my request by First American Title Insurance Company, which was delivered to me in the form of a title commitment in order to set forth the deficiencies discussed in this letter. In addition, I contacted the attorney who represented The Estates of Atlantic Beach, LLC, in the matter of securing the quit-claim deed from the City of Jacksonville and gave him the opportunity to provide me with any documentation that might support The Estates' claim to the subject property. QUESTION PRESENTED: DOES THE ESTATES OF ATLANTIC BEACH, LLC, OWN GOOD AND MARKETABLE TITLE TO THE "OLD SHERRY ROAD" PROPERTY? IF NOT, WHO DOES? BRIEF ANSWER: No. The Estates of Atlantic Beach, LLC, (EAB) does not have good and marketable title to the subject property and never did. Other entities and persons own it or have claims on it, as will be discussed herein. t5 Dr. Mark Tomaski 03 March 2010 Page 2 of 10 Although EAB is currently being treated as the fee simple owner of the property, there are various problems in the chain of title that call into question or dispute EAB's claim of title. The 2005 Corrective Quit-Claim deed purportedly issued by the City of Jacksonville to EAB was issued without legal authority on the basis of EAB's assertion that ownership of the subject property had already reverted to EAB. In fact, the reversionary interest, if any, in the property which EAB claimed to have acquired was and is still held by R-C-B-S Corporation, as an entity, and was never properly conveyed to those individuals who claimed it. FACTUAL BASIS. AND ANALYSIS: R-C-B-S Corporation In January of 1932, R-C-B-S Corporation deeded the subject property to Duval County. (Subsequent governmental consolidatibn resulted in Duval County in effect becoming the City of Jacksonville.) However, that 1932 deed (O.R. Book 608 Page 8) provided that the property must be used as a public park or park driveway; if it was not used for such, then its ownership would "revert" back to R-C-B-S Corporation, or its "successors and assigns." The 1932 deed meant that Duval County now had legal title to the property, but subject to reverter in the event that the property was not used for park or park access purposes. R-C-B-S Corporation thus owned a possibility of reverter -- the possibility that full ownership of the land might revert back to R-C-B-S Corporation. (R-C-B-S also retained some limited easement rights, allowing some continued access to and over the parcel even if the parcel became a public park.) On 09 March 1976, R-C-B-S Corporation voluntarily dissolved itself, having never, before or since that date, transferred, granted, or assigned its reverter or any other interest in the subject property to any successor owner via any recorded instrument, such as a deed. Although a dissolved corporation may not undertake new business ventures, it can and does retain title to all of its assets and property that it has not transferred or distributed. Because R-C-B-S Corporation never transferred the reverter interest to EAB or to any other entity or person, legal title to that reverter interest -- and thus full "fee simple" title to the property itself if reversion has in fact occurred -- remains with R-C-B-S Corporation. It should be noted that, pursuant to the express terms of the 1932 deed, it appears that in order for the reverter to be triggered the owner of the reverter (R-C-B-S Corporation) must take some overt action to do so. The deed provides that if the property is not used for park purposes, it revert "immediately, or thereafter, at the election of the party of Dr. Mark Tomaski 03 March 2410 Page 3 of 10 the first part." Thus it appears that R-C-B-S Corporation must affirmatively make an "election" at some point to have the property revert to it. R-C-B-S can do so as soon as the reversion conditions occur, or R-C-B-S can wait until later to do so. I could find no evidence showing that R-C-B-S Corporation has ever elected to trigger the reverter. No recorded instruments reflect such action. No public records or corporate documents that I have been able to obtain reflect any evidence of a decision by R-C-B-S Corporation to trigger the reverter or claim that it had been triggered or that R-C-B-S Corporation made any corresponding demand upon Duval County or the City of Jacksonville. Nor•, as this letter will discuss in more detail below, did I find clear and convincing evidence that the circumstances or conditions under which such an action would be warranted actually existed. R-C-B-S Corporation and. its remaining assets, including the reversionary interest in the subject property, are in turn owned by its shareholders as of the 1976 dissolution, or by their heirs or successors. However, only the Corporation's directors have the authority to transfer title to any of the Corporation's assets, including the reverter interest in the subject real property. Tha public real property records do not reflect such a transfer. In support of its claims, EAB has presented one or more deeds from individuals who were associated with R-C-B-S Corporation or from relatives of such individuals, such as Brenda Bull. However, those deeds do not suffice to transfer title of the subject property reverter interest to EAB. That is because even if one of those deeds includes a description of the subject property, none of them comes from R-C-B-S Corporation itself -- only from individuals acting as individuals. And R-C-B-S Corporation had never granted the reverter interest to any of those individuals from whom EAB procured deeds. Thus EAB merely has deeds from individuals who did not have title to the subject property or its reverter interest and so could not possibly convey such to EAB. Title to the reverter interest (including the right to decide if and when to trigger the reverter) still remains with R-C-B-S Corporation. If reversion has already occurred, as EAB asserted in a 2005 letter to the City of Jacksonville's Office of General Counsel, then R-C-B-S Corporation would have fee simple title. (That is, assuming that circumstances for exercise of the reverter even properly existed, that the property had actually "cease[d]" to be used as a park.) If reversion to R-C-B-S Corporation has not already occurred, such reversion may occur in the future: The actual development of the parcel for uses inconsistent with or other than the park uses allowed by the 1932 deed would most certainly allow R-C-B-S to trigger the reversion if it does not already have that right as a result of mere non-use of the parcel as an opened public "park." (A determination of the applicable definition of "park" might be needed.) Dr. Mark Tomaski 03 March 2010 Page 4 of 10 City of Jacksonville In 2005 EAB incorrectly asserted to the City of Jacksonville that EAB had acquired R-C- B-S Corporation's reverter interest in the subject property, asserted that the conditions triggering the reversion had already occurred, and demanded that the City of Jacksonville quit-claim the subject property to EAB. For the reasons discussed above, the first assertion was clearly incorrect. I have no evidence and so offer no opinion as to whether EAB's inaccurate claim that it had acquired R-C-B-S Corporation's reverter interest was an intentional misrepresentation or an honest mistake. In any event, it appears that the City of Jacksonville's Office of General Counsel did not undertake to independently verify EAB's chain of title but instead relied on the representations made by EAB and its attorneys. It is debatable (1) whether or not the conditions that would allow for triggering the reversion actually had occurred; (2} if so, when any authorized overt elective action to trigger and cause such reversion had occurred; and (3) whether even the true holder of a potential reversionary interest -- i. e., R-C-B-S Corporation -- would likely have prevailed against the City of Jacksonville in an action to enforce the reversion (more than 70 years after the property was deeded to Duval County) and to obtain a quieted fee simple title. However, in 2005 the City of Jacksonville's Office of General Counsel, having been informed by the City's Real Estate Division that the "Old Sherry Road" parcel remained physically undeveloped and "wild," did not dispute EAB's assertion that conditions triggering reversion had occurred as a result of the City not using the property as a public park or park driveway. I note, however, that neither had the City developed the subject parcel for anything else, anything that would preclude its future use as a park. It just wasn't developed at all. Interestingly, the 1932 deed does not say when Duval County must begin the park use. Interestingly, along with providing for reversion if the property should ever "cease" to be used for park purposes, the 1932 deed also includes language prohibiting the use of the property "for any other purpose that might interfere with its use as a Public Park or Park Driveway." (Just as determining applicable definition of "park"~ could be necessary, so too arises a question as to what "park driveway" means. Could an "Old Sherry Road" connecting to Hanna Park suffice?) In my opinion, there exists at least some evidence that could support a defense by the City of Jacksonville to the effect that the circumstances or conditions that would allow the reverter to be triggered did not exist. But the City did not choose to attempt to defend its (the public's) interest in the subject property on that basis or any other. Acting in mistaken reliance on EAB's inaccurate claim that EAB had acquired R-C-B-S Corporation's reverter interest in the subject Dr. Mark Tomaski 03 March 2010 Page 5 of 10 property, the City of Jacksonville's Office of General Counsel prepared aquit-claim deed for the Mayor's signature. Mayor Peyton signed that deed (recorded at O.R. Book 12494 Page 284) in May 2005. However, it was later discovered that the May 2005 deed did not include the correct Iegal description for the subject parcel, so EAB's attorney prepared a corrective quit-claim deed, which Mayor Peyton signed in July 2005 (O. R. Book 12660 Page 465). Under the provisions of the City of Jacksonville's ordinances that govern disposal of real property owned by the City, the Mayor had no legal authority to sign either of those deeds absent specific authorization from the City Council. (Note: Although some of the City of Jacksonville ordinances discussed below have been amended since 2005, none of the changes would affect the analysis presented herein.) Section 32.402 identifies the "Real Estate Officer" (REO) as being "the division chief of the Real Estate Division." Section 122.409 says that if the REO finds that someone has deeded a parcel of real property to the City, but t}~e City has not "accepted" it, and if the REO first documents in writing that no City department or independent agency has any need for that property, then the REO may execute a an instrument disclaiming any right, title, or interest the City may have in that property. Section 122.422 says that if someone approaches the City to buy a piece of City-owned real property, or if the REO determines that the City or independent agencies have no need for the property, then the Real Estate Division can ask the City Council to consider legislation to declare the property to be surplus and authorize its sale. Again, getting rid of such property requires City Council authorization. The primary determinant of whether a real property transaction is governed by Section 122.409 or by Section 122.422 appears to be whether or not the City of Jacksonville ever "accepted" a parcel of real property that was deeded to it. Transfer of non-"accepted" properties is governed by 122.409. Transfer of "accepted" properties is governed by 122.422. In the 2005 transaction with which we are ,concerned, the Real Estate Division and Office of General Counsel made no attempt whatsoever to follow the Section 122.422 procedure. The City Council was not asked to declare the subject "Old Sherry Road" property surplus or to authorize deeding it to EAB. There is no record that the City Council was ever informed or consulted about this transaction. Dr. Mark Tomas'ki 03 March 2010 Page 6 of 10 The remaining question is whether and to what extent the Section 122.409 procedure was applicable and was followed. Whether or not the City of Jacksonville (or its predecessor Duval County) ever "accepted" the 1932 deed of the subject property is another interesting question. Apparently the property was treated as public property for tax purposes and remained off the tax rolls for over 70 years. Apparently the County/City believed that it was appropriate to reflect a planned road on the parcel and to continue referring to the property itself as "Old Sherry Road," implying an intent for public use in future, at Least. A good case might be made that over the course of 70 years the County/City had effectively accepted the property by conduct if not by writing. If so, Section 122.409 would not be applicable -- Section 122.422 would be -- and so only the City Council could approve designating the property surplus and granting it out. However, if we assume for the sake of discussion that the City had never "accepted" the property, then Section 122.409 would be the applicable section. Section 122.409's procedures for disclaiming property were not followed, either. The only documentation from the Real Estate Division relevant to this transaction is a memorandum dated April 7, 2005. That memorandum reports that a visual inspection of the property indicated that the property is located adjacent to Hanna Park, "has never been developed" and is "wild and overgrown." Other than that, the Real Estate Division has unequivocally stated, in response to specific and direct inquiry, that it had no involvement in the transaction. Thus there is no written documentation from the REO, as required by Section 122.409, of a finding that neither any City department nor any independent agency had any need for this property: Also, the quit-claim and corrective quit-claim deeds were not executed by the REO, as is required by Section 122.409. Rather, they were signed by the Mayor. Several weeks before the date of this letter'I made written request for the City of Jacksonville Office of General Counsel to provide me with citations to or copies of any and all legal authorization that would have empowered the Mayor :to sign the deed quit- claiming the subject property to EAB, including the power to do so without City Council approval. None was provided to me, and I could find none. Per City ordinances, the Mayor had no legal authority to sign the deed on behalf of the City of Jacksonville absent specific authorization from the City Council. Moreover, it appears that the City Council never took any action to abandon or vacate the subject parcel or the portion of "Old Sherry Road" that City records refer to as being routed through the length of the parcel. Thus it appears that the City of Jacksonville may not have legally and effectively transferred its interest in the subject property to EAB. Dr. Mark Tomaski 03 March 2010 Page 7 of 10 Even if the City of Jacksonville had provided EAB with a properly authorized deed in 2005, such a deed would have been procured by EAB's inaccurate representation as to EAB's title to the reverter interest that was and is still held by R-C-B-S Corporation. EAB's inaccurate representation induced the City of Jacksonville to proceed with the transaction on the basis of a material mistaken understanding regarding EAB's claimed rights to the property. The City of Jacksonville might well act to revoke such a transaction. However, if conditions triggering the reverter have occurred (or occur in future), the property's title would revert from the City of Jacksonville (or from EAB) to R-C-B-S Corporation; that is, the reverter right still remains with R-C-B-S Corporation. Owners of Abutting Parcels In the event that the City of Jacksonville ever should undertake the process necessary to effectively abandon or vacate the subject parcel or "Old Sherry Road" (or if such abandonment/vacation is deemed to have occurred), then it is possible that the owners of lands abutting the subject parcel along its eastern boundary may have viable claims to assert title over the portions of the abandoned/vacated parcel that abut their respective properties. In many cases when a roadway is vacated and abandoned, the property is divided up between the abutting properties along either side of the roadway. If and when the City of Jacksonville should effectively vacate and abandon the subject property, then it may be possible that owners of the abutting residential properties could claim title to the portion of the subject parcel that abuts their back yards, extending westward from their current property boundaries to the center line of the parcel. Estates of Atlantic Beach LLC If the City of Jacksonville's 2005 quit-claim of the subject property to EAB was legally ineffective or void or is voidable and becomes void, then EAB has no has title or interest in the subject property. If, on the other hand, the City of Jacksonville's 2005 quit-claim of the subject property to EAB was and remains legally effective and valid, then EAB received only such rights or interest in the property as the City of Jacksonville possessed at that time. If any. If, as EAB and the City of Jacksonville apparently agreed at the time, the conditions and events triggering reversion under the 1932 deed had already occurred, then as of 2005 the City of Jacksonville no longer possessed any rights or interest that it could convey; the City of Jacksonville's ownership interest in the property had already reverted to R-C-B-S Corporation. If, hypothetically and for the sake of discussion, we were to Dr. Mark Tomaski 03 March 2010 Page 8 of 10 assume both (1) that the City of Jacksonville's 2005 quit-claim of the subject property to EAB was and remains legally effective and valid and (2) that the conditions triggering reversion had not already occurred as of 2005, then EAB's title claim is subject to the reverter interest held by R-C-B-S Corporation. Even if the conditions that would allow reversion to R-C-B-S Corporation had not already occurred, they would certainly occur if EAB tried to use the property for -- or allow the City of Atlantic Beach or others to use it for -- anything other than park purposes. Again, the actual reversion would not occur automatically. A decision to cause the reverter to be triggered would have to be made by the party holding the reverter right: R-C-B-S Corporation. There is no evidence that R-C-B-S Corporation has made such a decision or demand in connection therewith, and there is no way to know what type of demand R-C-B-S might make. City of Atlantic Beach In September 2009, EAB granted to the City of Atlantic Beach (COAB) an easement over the subject property for the purpose of constructing and maintaining a sewer line and related improvements. (Recorded at O.R. Book 15029 Page 544.) At approximately the same time, COAB ancl' EAB also entered into a written agreement concerning the easement and EAB's future use of the subject property for residential development. EAB had and has no legal right to grant easements over or to enter into agreements concerning real property that it does not own. Because EAB did not and does not have good title to the subject property or any authority to act on behalf of or to bind R-C-B-S Corporation (or for that matter the City of Jacksonville or adjacent property owners, who might potentially claim an interest), both the easement and the agreement should be nullities. Because EAB does not own the subject property, EAB has no right to enter upon the property and could be held liable in trespass for any damage or alteration to the property. Because EAB lacks the legal. authority to grant COAB an easement over the subject property, COAB has no right to enter upon the property and could likewise be held liable in trespass for any damage or alteration to the property. Moreover, any permanent improvements that COAB or EAB might place upon the subject parcel would arguably become the property of R-C-B-S Corporation. Dr. Mark Tomaski 03 March 2010 Page 9 of 10 First American Title Insurance Company First American Title Insurance Company was tasked to perform a title search and then_ to prepare a hypothetical title insurance commitment document. The hypothetical scenario was that of a prospective buyer seeking to insure title of the subject real property (or any part of it) if such buyer were to purchase the property from EAB as the seller purporting to have fee simple title. Based on its research showing no clear chain o'f title underlying EAB's claim to fee simple ownership, First American Title Insurance Company has indicated that in the event a prospective buyer were to seek to purchase the subject property from EAB and to obtain title insurance, First American could not insure title coming from EAB unless and until the following things (among others) were done: Proper abandonment and vacation by .the City of Jacksonville fka The County Commissioners of the County of Duval, Florida, eliminating all rights of the public in and to (the] property. Upon completion of proceedings required ... above, a Warranty Deed from the City of Jacksonville. Warranty Deed conveying the land from all of the directors of R-C-B-S Corporation, a dissolved Florida corporation, as Trustees of said corporation. Certified copy of a ~R-C-B-S Corporation) Board of Directors resolution setting forth the terms, conditions and consideration for which all of the directors of the corporation are authorized to convey its property. The interest of all adjoining property owners along the east boundary of [the) property, and any parties claiming by, through, or under said owners, including but not limited to mortgagees of record, m~.~st be divested of record. In effect, First American is indicating that EAB does not have good title to convey and that title would have to be obtained from the property's actual owners: The City of Jacksonville and R-C-B-S Corporation. In addition, First American recognizes the existence of other potential claimants to title, and those potential claims would also need to be addressed and eliminated before good title could be had. Dr. Mark Tomaski 03 March 2010 Page 10 of 10 CONCLUSIONS The Estates of Atlantic Beach, LLC, (EAB) does not have good title to the subject property and never did. EAB has no clean chain of title from R-C-B-S Corporation. EAB's putative title from the City of Jacksonville is almost certainly invalid; the quit- claim deed was not properly authorized, and if EAB's asserted position as to the prior occurrence of reversion is correct, the City of Jacksonville's ownership interest would already have been terminated by reversion to R-C-B-S Corporation. The City of Atlantic Beach's (COAB) 2009 easement from EAB over the subject property should be treated as a nullity, as EAB does not have good title to the subject property, and so EAB had no legal authority to grant anyone an easement over it. Entry upon the subject property by COAB or EAB would constitute a trespass that would subject the trespasser to civil liability for damages as well as injunctive relief. (Criminal trespass charges would not be entirely out of the question.) R-C-B-S Corporation stills owns, at the very least, a reverter interest in the subject property. If it is determined that reversion has already occurred, then R-C-B-S Corporation owns a fee simple interest (subject to possible future claims of adjacent property owners). -If reversion has not already occurred, R-C-B-S Corporation could certainly elect to trigger it on the basis of COAB's or EAB's use of the property for non- park purposes, and R-C-B-S Corporation would at that time come to own a fee simple interest (subject to possible claims of adjacent property owners). If reversion has not already occurred, then the City of Jacksonville still owns the fee interest subject to R-C-B-S Corporation's reversion interest. Mayor Peyton had no legal authority to sign the quit-claim deed on behalf of the City of Jacksonville, and the subject property was not properly abandoned and vacated by the City Council. Owners of properties abutting the subject property along its eastern boundary may be able to claim parts of the subject property if and when the City of Jacksonville properly abandons and vacates the subject "Old Sherry Road" property. That would, potentially, include you, as you currently own one such abutting property. Thank you for giving me the privilege of assisting you in this matter. Sincerely, , ,~ 1I ~ ~' ~'.. ~/• ~ jam. ` /~% . ,~•~;i~, Michael .Woodward