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Item 10B AGENDA ITEM # 10B SEPTEMBER 27, 2010 September 13, 2010 To Whom It May Concern, Let this stand as my response to the question of why I have lost faith with those who sit on the City of Atlantic Beach dais with me. This has been a long process and I had hoped for many months that events would unfold to restore my confidence and faith and begin to make amends between us but this has not happened. Below I have listed some of the issues that are contributing factors to my decline of trust, some more important than others, followed by an outline where each comment is further detailed. This has been a rough year for our City. It is my desire to welcome good and appropriate development and to meet our state mandated TMDL requirements. My goals have always been and remain to represent and protect the City's, and its citizens', interests against all harm and waste. I am not a smooth and seasoned politician and my approach to this conflict reflects this. It is hard to affect positive results and feel an issue is being treated fairly and appropriately when your concerns are simply dismissed. Sometimes it takes a squeaky wheel to be heard and get the job done. Because of events that unfolded and actions of the commission this was the remaining course of action open to me and many concerned citizens. I aspire to be an impartial advocate for the public good. I strive to have our local government be as accommodating and open to public scrutiny as possible in accordance with our Sunshine Laws. In this manner, trust can be rebuilt and maintained, all parties will know their concerns are important, their needs considered and good governing is the norm. Very Sincerely Yours, Commissioner Carolyn Woods Why I have lost faith with those who sit on the City of Atlantic Beach dais with me. (The list) 1. Alan Jensen failed to give me council as a commissioner. 2. Alan Jensen failed to act in a timely manner to protect a citizen's property from a developer's land grab. — 1 of14^- AGENDA ITEM # 10B SEPTEMBER 27, 2010 September 13, 2010 3. Alan Jensen Okayed $140,000.00 payment to EAB even though the policy he bought to protect this payment specifically excluded this payment. 4. Alan Jensen tried to correct his commission meeting answer on whether EAB's title insurance would cover the City and still got it wrong. 5. Alan Jensen argued that even though EAB was to have a minimum $ 140,000 costs paid for them the EAB was not receiving any benefit from the agreement. 6. Jim Hanson's staff report claimed that the route through EAB would save $500,000.00 over any other route. It made headlines but was untrue. 7. Jim Hanson recommended paying tree mitigation costs that he knew would not be required. 8. Jim Hanson's and Alan Jensen's contention that the decision of which route to use for the TMDL pipeline is not a policy decision to be made by the city commission appears to be a usurping of powers. 9. Alan Jensen's has misquoted me and continued to engage in other unprofessional conduct at the dais. 10. Contrary to verbiage in the Easement Agreement Alan Jensen argued that it was not the wording of the contract but the intentions of the contract parties that would prevail in a court of law. 11.There were major red flags that were ignored by Mayor Meserve, Mike Borno, Paul Parsons and John Fletcher before the vote on the Easement Agreement. 12.Again and again the men who share this dais with me have tried to shoot the messenger instead of heeding the message. - 2 of14- AGENDA ITEM # 10B SEPTEMBER 27, 2010 September 13, 2010 13.Even though the ownership of the RCBS Parkland / EAB easement has been openly contested during most of the process Mike Borno, Paul Parsons, John Fletcher, Jim Hanson and Alan Jensen have not wavered in their resolve to push for payment of cash to the EAB and to continue expenditures associated with placing a pipe on this property. Now begins the outlined explanation of each issue. Why I have lost faith with those who sit on the City of Atlantic Beach dais with me. (The list with outlined details) 1. Alan Jensen failed to give me council as a commissioner. a. Because Alan Jensen felt he could not represent me, on the issue of my letter to the state attorney, I was forced to hire an attorney who gave me the good and appropriate advice Alan Jensen should have given me. The advice was: i. Basically the demands of the EAB where rubbish, he had never seen anything like it and they did not deserve a response, and Alan Jensen should have advised me and EAB of this. ii. When EAB got this answer they withdrew their demands and backed off. iii. When the City got this answer Alan Jensen and Mayor Borno crafted a resolution basically censoring me and disavowing my concerns. 1. The entire commission, except me of course, passed this "resolution" on May 10, 2010. iv. I lost a lot of faith in everyone up here on the dais with me that evening and so did a lot of other people. b. Alan Jensen repeatedly stated that he was under no obligation to be my council on this issue, and even got a decision from our insurance carrier saying the city insurance would not cover me in this issue because I was acting as a private citizen. i. If this were true then why did he help write and the commission pass the resolution condemning these actions by me as a commissioner? ii. This is an example of how I perceive Alan Jensen to be continually twisting and turning statements and events to attack me and try to discredit me instead of heeding my concerns and protecting the city from real threats. ^ 3 of 14 AGENDA ITEM # 10B SEPTEMBER 27, 2010 September 13, 2010 C. I'll finish this topic by offering this synopsis of my discussions with the State Attorney's office. i. They have their many reasons for not opening an investigation. ii. They have let me know, on more than one occasion, they feel I am justified to have concerns. iii. And they have encouraged me to continue to seek the truth. 2. Alan Jensen failed to act in a timely manner to protect a citizen's property from a developer's land grab. a. In Mr. Harden's cover letter, dated May 18, 2009, he notes the EAB title policy insures "the northerly 60 feet of Selva Marina Dr. (a 100 foot right of way) as closed by the city of Atlantic Beach in Ordinance 65- 88 -18 ". a. Then Mayor Meserve stated at the July 27 commission meeting that there was only a 50' x 60' easement. b. In an email dated August 5, 2009 Alan Jensen acknowledged The EAB, LLC only owned Y2 of this easement per state law regarding abandoned right of ways. c. However in commission meetings; i. Alan Jensen did not correct this error but instead repeated the error as fact 5 days later at the August 10 meeting (pg. 3, 3 paragraph). ii. Only after repeated requests to correct this did Jensen finally relinquish to ask the EAB's attorney his opinion, even though it was Jensen's responsibility, and iii. It was finally corrected, May 10, 2010, by being placed as an item for the commission's vote of approval along with approving $140,000 cash payment to the EAB. i. Since the EAB's ownership of the property was in question this put me in the position of voting against a citizen's rightful claim to his property and an issue I had been fighting for, that shouldn't have been an issue nor need a vote. 3. Alan Jensen tried to correct his commission meeting answer on whether EAB's title insurance would cover the City and still got it wrong. a. In the April 26 2010 commission meeting when I asked what protection the City had for any damages resulting from the City going on the land if it ended up the EAB did not own the property he stated that the City would be covered by EAB's insurance. -- 4 of 14 AGENDA ITEM # 10B SEPTEMBER 27, 2010 September 13, 2010 b. He later sent a memo, April 30, 2010, to clarify this that states: i. "It is my opinion that the City would not be directly covered by the owner's title policy for any damages incurred by the City." ii. "However, in the event there were damages to the City resulting from EAB not having title to the property, then in that event the City would have a claim against EAB for its damages." iii. "It is my understanding that the owner's title insurance policy insures them against actual monetary loss or damage sustained or incurred by them by reason of the matters insured against by the title policy." c. When I called and spoke with Mr. Pierce, on March 29, 2010, at the Old Republic National Title Insurance Co., and asked about the EAB policy SDC 613841 he explained that: i. Any agreements after the date of this policy would not be covered. In other words any post policy events would not be covered. ii. If there is something wrong with the title than the owner can file a claim and get back what was paid for the property. EAB paid $10.00 for the Quit Claim from the City of Jacksonville. iii. This policy insures against anyone making title claims, it insures for what was paid for the property. Again EAB paid only $10.00 for the Quit Claim Deed. 4. Alan Jensen Okayed $140,000.00 payment to EAB even though the policy he bought to protect this payment specifically excluded this payment. a. In the end the policy he obtained, Stewart Title 0- 2125- 610675, to insure this money specifically excludes the RCBS Co, claims to the property and the easement between the City and the EAB. From Schedule B -II: b. Exceptions from coverage # 19: "Rights of Reversions as contained in Official Records Book 15252 page 1985 and created in Deed Book 608 page 8 of the Public Records of Duval County Florida" c. Exceptions from coverage # 20: "Corrective Grant of Easement between The Estates of Atlantic Beach LLC a Florida limited liability company and City of Atlantic Beach a municipal corporation dated June 22, 2010 and recorded in the Official — 5 of 14 — AGENDA ITEM # 10B SEPTEMBER 27, 2010 September 13, 2010 Records Book 15289 page 1187 of the current public records of Duval County Florida." 5. Alan Jensen argued that even though EAB was to have a minimum of $140,000 costs paid for them they were not were not receiving any benefit from the agreement. a. State Statute 286.23 requires all parties with beneficial interest in a property to declare that interest before any contract involving the property is entered into. b. It is clear that the Agreement calls for compensation by the City to EAB in the form of paying permitting and mitigation costs, including as well ancillary costs described by Jim Hanson in an email of 3 -1 -2010. c. Alan Jensen argued in a March 5, 2010 email no disclosure statements were required by EAB because "Payment from the City was to go to the City of Jacksonville for mitigation and to whoever removes any trees." d. This clearly shows monies being obligated by the City on behalf of the EAB. This sounds like compensation to me. 6. Jim Hanson's staff report claimed that the route through EAB would save $500,000.00 over any other route. It made headlines but was untrue. a. All of these savings were to be realized after the point that the pipe passed through the EAB property. b. In my meetings with Jim Hanson he told me the difference in costs between the routes was basically $40,000. 7. Jim Hanson recommended paying tree mitigation costs that he knew would not be required. a. Jim Hanson's staff reports to the commission recommended accepting the original EAB Easement Agreement that included paying $140,000.00 in mitigation costs, for removing enough trees to create a clear an approximately 50' x 1000' roadway. However the record shows: b. There are no mitigation costs when a developer obtains a permit from the city of Jacksonville to develop a roadway: i. City of Jacksonville Codes & Ordinances Sec. 656.1205 Removal of Protected Trees item (7) Any tree located within an existing or proposed street right -of -way and /or easement shown on a set of approved final construction plans..., may be removed during construction of such improvements. $0 cost. - 6of14 — AGENDA ITEM # 10B SEPTEMBER 27, 2010 September 13, 2010 c. The City of Jacksonville would not permit removal of trees not needing to come down for the directional drill pipe installation. i. September 9, 2009 email from the engineer G. Grimes to City manager Jim Hanson. G. Grimes then informed Jim Hanson that the City of Jacksonville Landscape Architect, Kim Stewart, confirmed for directional drill the "only mitigation that would be considered is what trees had to be removed to accommodate equipment ". 1. So only these few trees would be permitted to be removed, requiring far less than the $140,000 in mitigation included in the proposed (at the time) agreement. ii. This is the extent of the emails until well after the vote on the agreement. iii. J. Hansen recommended approving an agreement which stipulated removing all the trees in the proposed roadway yet per the emails he had received at this time the only trees able to be removed, by law to come down were very few. iv. All of the cost estimates for the TMDL pipe routes presented to the commission showed directional drilling to be used. v. Directional drilling requires minimal tree removal. vi. The entire "roadway" path did not need to be cleared for equipment. vii. Many people complained loudly about removing and paying to remove so many trees that did not need to come down. viii. After much ado M. Sones "agreed" to allow the trees to remain. ix. The Easement Agreement was renegotiated with M. Sones for the City to pay EAB the $140,000 cash directly for the use of the property — property who's ownership was in continued dispute. 8. Jim Hanson's and Alan Jensen's contention that the decision of which route to use for the TMDL pipeline is not a policy decision to be made by the city commission appears to be a usurping of powers. a. Our City Charter states "all powers of the city and the determination of all matters of policy shall be vested in the city commission." i. The City charter also entrusts the responsibility for spending City funds squarely on the shoulders of the Commission. ii. Any route chosen greatly affects the price tag for the TMDL — 7 of14^- AGENDA ITEM # 10B SEPTEMBER 27, 2010 September 13, 2010 project. b. Any route chosen affects the quality of life for the City's citizens. These are policy decisions to be made only by the city commission. c. If the commission had delegated this responsibility to staff then any meetings held to discuss this would be subject to the Sunshine laws. i. Alan Jensen and Jim Hanson contacted the EAB about using their property and negotiated an agreement. ii. I was shown a negotiated contract after the fact. Never asked if I felt the City should engage in the negotiations. This supports the fact that the route had been chosen and not by the commission body. iii. Jim Hanson contends all of the commissions knew of the negotiations. iv. Jim Hanson also contends none of the other commissioners thought the commission would select the route. v. This is not the same information I was given. 9. Alan Jensen's has misquoted me and continued to engage in other unprofessional conduct at the dais. a. Alan Jensen seemingly pretended our commission meetings were a court of law and that he had a right to grill me without previous warning and expecting me to offer detailed legally binding answers on the spot without the specific information at hand, repeatedly. i. This seems to be more common of behavior of opposing council. ii. This definitely does not instill trust; in fact it breaks it down. b. Repeatedly admonishing me for contacting outside resources in order to be informed about an issue before voting on it. c. Insisting I could not identify myself as a commissioner when I contacted sources for information. d. Alan Jensen has misquoted me in his emails and in his comments at commission meetings. e. I have never represented to anyone that I speak for the commission on any issue. 10.Contrary to verbiage in the Easement Agreement Alan Jensen argued that it was not the wording of the contract but the intentions of the contract parties that would prevail in a court of law. a. During the many discussions about how many trees would be removed; 8 of14^- AGENDA ITEM # 10B SEPTEMBER 27, 2010 September 13, 2010 i. The City arguing for clear cut of all trees verses the citizens advocating for minimal selective clearing. ii. Alan Jensen said it was the parties' intentions that would prevail in court. iii. If the intention was to clear cut all along why was the verbiage added to insure saving as many trees as possible? b. Alan Jensen's claim that the intentions of the parties would prevail over the wording of the contract is disputed by the Easement Agreement itself. i. In section 9. "The above constitutes the entire agreement between the parties and there are no other agreements, either verbal or written, except as expressly set form herein. This Agreement shall be governed by and construed according to the laws of the State of Florida." ii. Per the Agreement Section 2. (b) Work with The Estates to locate the sewer force main in the easement so as to avoid as many of the trees, and especially large trees, as economically possible so as to save as many large trees as possible, and the City shall pay for any tree mitigation costs resulting from the removal of any trees for the sewer line and right -of -way for future road construction (50 feet in width). iii. This is clear that the intentions were to save as many trees and as much money as possible by cutting down as few trees as possible. 11.There were major red flags that were ignored by Mayor Meserve, Mike Borno, Paul Parsons and John Fletcher before the vote on the Easement Agreement. a. It was the irrational insistence on using the route through the "EAB easement" that started the decomposition of my trust. The continued irrational comments, actions, votes and dogged determination to put an effluent pipe on this property despite all the problems are why I have lost my faith in those who sit up here on the dais with me. b. For beginners the SJRWMD had denied the EAB development permit application. This was deemed inconsequential. c. M. Schmidt, a respected engineer whom AB had contracted with and relied on professionally for past projects sent a lengthy fact based letter of opposition to using this route for the TMDL pipeline. This was dismissed. ^ 9 of14^ AGENDA ITEM # 10B SEPTEMBER 27, 2010 September 13, 2010 d. We did not have to use this route. There were 15 or so other route options. Citizens came up with a very viable one — more on this later. e. Citizens of Atlantic Beach were going to: i. Have their lives negatively impacted ii. Their property values negatively impacted iii. In order to accommodate a development outside of our city limits that: 1. Would not add to our tax base 2. Would require city services and use of city infrastructure. 3. The development would not be diminished in any way if the TMDL pipeline was installed elsewhere. f. Per the original Agreement all tree mitigation cost are to be paid by the City of AB, even though tree removal is not necessary to place the TMDL pipes. i. Why would a city advocate for and agree to remove hundreds of inches of mature oak canopy it didn't need to? 1. Which would negatively impacts taxpaying citizens far more than the supposed cost savings of this route. 2. Plus maintain the roadway clear of any new tree growth in perpetuity — forever even if no development was ever built, at Atlantic Beach citizen's expense. 3. All this for a development that was denied a permit. It really seems so irrational it was mind boggling to a lot of people! ii. Jim Hanson stated in an email to a citizen and told me that the City was removing the trees to "save face" for the Estates of Atlantic Beach so they would not take the public relations heat for taking down the trees, the City would take the trees down and the heat. 1. Again for a route that is not necessary for the pipeline. 2. Both the developer and the City received a lot of heat for this audacity and not just from me. iii. Per the original Agreement if this developer never gets permits to build, the city has paid $140,000 to unnecessarily remove trees and potentially alter the drainage of important AB wetlands and natural drainage system. This in my opinion is not a good deal for the City or its citizens. — 10 of14 ^- AGENDA ITEM # 10B SEPTEMBER 27, 2010 September 13, 2010 1. Citizens of Oceanwalk proposed an alternative path that would not affect the wetlands, stay within the city limits and be cost effective, a. The official estimate came in at only $25,000 more than the negotiated EAB route cost estimate presented at the 9 -14 -2010 meeting. i. This is a very inconsequential number for a project of this size, $11 million and counting. And as John Fletcher reminded me estimates change. ii. And change they have the cost estimates for the EAB route have gone from: 1. $3,339,400 in December 2008 prepared for the Commission's decision on whether to close Buccaneer or not. 2. $3,687,160 in June of 2009 for the upcoming July commission meeting. 3. $3,433,000 in September 2009 for the commission meeting. 4. That is a lowering of the estimate by $254,160.00 in preparation for comparing this route to a route through Oceanwalk. b. I say negotiated EAB route cost estimate because, after John Fletcher's email recommendation that the tree mitigation costs be capped, they were. It was decided to use $140,000 for the tree mitigation estimate, without confirming the actual number and size of trees that would actually come down. i. A 5 year old survey provided by the developer was used for the City's tree mitigation cost estimates. ii. Per Jacksonville code trees over 6 ", including pines and palms, must be mitigated for. iii. Of the 30 trees listed on the August 2009 City tree mitigation estimate none were 11 0f 14 -- AGENDA ITEM # 10B SEPTEMBER 27, 2010 September 13, 2010 smaller than 14" and no palms or pines were listed at all. 1. The 2010 City tree survey shows 167 trees less than 14" and 90 trees equal to or greater than 14" 2. To clear a minimum 30' roadway and only affect 30 of the 257 trees is amazing. And rather unbelievable. 2. The route through Oceanwalk came in at $25,000 higher and thus claimed to not be a viable route because of two things. a. At the September 14, 2010 Commission meeting the cost estimate for the "EAB" route decreased by over $250,000 from the estimates prepared for the July 27 commission meeting. b. The tree mitigation estimate was not based on facts. 3. I asserted that the alternate Oceanwalk path proposal was never considered by the commission, the majority had already made up their mind to approve the Easement Agreement. a. This was based on the behavior and comments of those up here on the dais with me. i. Mr. Meserve championed it, repeatedly. ii. Mr. Borno stated we were trying to save $500,000. iii. During the July 27 Mr. Fletcher commented to me he felt basically that it was his, referring to Mr. Sones, property rights and let's vote on it now. 1. This issue was suppose to be about the best decisions to meet our TMDL requirements not property development, yet the Easement Agreement has more sections concerning the property's development than the benefits for the TMDL pipeline, the City or its citizens. --- 12 of14^• AGENDA ITEM # 10B SEPTEMBER 27, 2010 September 13, 2010 12.Again and again the men who share this dais with me have tried to shoot the messenger instead of heeding the message. a. Despite all of the real and serious concerns that have been raised with this issue the men at this dais have repeatedly chosen to try and deflect attention from the facts and make this an issue about me. b. Diversion is the tactic of choice for those with a weak position. c. Gentlemen this is not about me it is about your behavior on behalf of the City and the decisions you have made; i. The bountiful pertinent information and citizen concerns you have ignored. 1. John Fletcher has repeatedly led the charge to censor and edit the commission meeting minutes by; a. Limiting the content and meaning of citizen statements from the commission meeting minutes. b. Blocking my proposals to have the minutes clarified to accurately depict conversations held between the commissioners and between the commissioners and staff. c. Failure to support funding for videotaping of the commission's meetings. 2. Mike Borno claimed he had no conflict of interest but his actions said otherwise. a. Mike Borno was advised by Alan Jensen, and chose to follow the advice, that he had no conflict of interest in the EAB Easement Agreement issue and cast his vote. b. At the time Borno was a City Commissioner. c. Also the President of the Oceanwalk Homeowners Association. d. Borno claimed that by not speaking about the issue at the Ocean Walk Homeowners Association meetings he did not have a conflict of interest. e. Since Borno was their neighborhood representative Oceanwalk residents were left without representation on the commission. f. And without leadership on this issue within their Homeowners Association. — 13 ofl4 AGENDA ITEM # 10B SEPTEMBER 27, 2010 September 13, 2010 g. To me this makes a case for conflict of interest otherwise he would have been free to speak to his neighbors at the meetings. h. Without Borno participating in the vote on the EAB Easement Agreement there would not have been enough votes for the Easement Agreement to pass. 13.Even though the ownership of the RCBS Parkland / EAB easement has been openly contested during most of the process Mike Borno, Paul Parsons and particularly John Fletcher, Jim Hanson and Alan Jensen have not wavered in their resolve to push for payment of cash to the EAB and to continue expenditures associated with placing a pipe on this property. a. The City is currently being sued over this issue. Jim Hanson has rebuked my loss of trust in a memo, also included in tonight's agenda packet, by stating there is no smoking gun. Well I disagree. It may not be the single shot he is referring to it is more like a sawed off shotgun that sprayed many, many disconcerting issues. Please consider the above detailed outline as answer to why I have lost faith in the gentlemen sitting at the dais with me and embarked on the course I have to ensure citizens' issues are addressed and city resources are not wasted. It could be that all these actions mentioned have been honest, with the best of intentions for the City, the citizens and towards me. Maybe there are no inappropriate intentions and all of this is just incompetence. If so than I offer and please accept my sincere condolences. Commissioner Carolyn Woods —14 of14 ^