02-17-09 Regular Meeting MinutesFEBRUARY 17, 2009
A Regular Meeting of the City Commission of the City of Delray Beach,
Florida, was called to order by Mayor Rita Ellis in the Commission Chambers at City
Hall at 6:00 p.m., Tuesday, February 17, 2009.
1. Roll call showed:
Present- Commissioner Gary P. Eliopoulos
Commissioner Fred B. Fetzer
Commissioner Woodie McDuffie
Commissioner Mackenson Bernard
Mayor Rita Ellis
Absent - None
Also present were - David T. Harden, City Manager
Robert A. Barcinski, Assistant City Manager
Susan A. Ruby, City Attorney
Brian Shutt, Assistant City Attorney
Chevelle D. Nubin, City Clerk
2. The opening prayer was delivered by Very Reverend Thomas Skindeleski
with St. Vincent Ferrer Catholic Church.
3. The Pledge of Allegiance to the flag of the United States of America was
given.
4. AGENDA APPROVAL.
Mayor Ellis stated there is additional information for Item 9.D., Atlantic
Plaza It/Abandonment and Relocation of N.E. 7th Avenue and Abandonment of
Ally.
Also, she stated staff requests that Item 9.E., Bid ProtestlWestway
Towing, Inc. be moved up on the Regular Agenda as Item 9.A.A.
Mayor Ellis noted the addendum Item 9.E.1., Contract Award to Beck's
Towinu & Recovery, Inc. and stated that it will be moved to Item 9.A.A.A.
Mr. Eliopoulos requested that Item 8.L., Review of Appealable Land
Development Board Actions Historic Preservation Board Item #2), of the Consent
Agenda be moved to the Regular Agenda as Item 9.A.A.A.A.
02/17/09
Mr. Fetzer moved to approve the Agenda as amended, seconded by Mr.
Eliopoulos. Upon roll call the Commission voted as follows: Mr. Fetzer — Yes; Mr.
McDuffie Yes; Mr. Bernard — Yes; Mayor Ellis — Yes; Mr. Eliopoulos — Yes. Said
motion passed with a 5 to 0 vote.
5. APPROVAL OF MINUTES:
Mr. Eliopoulos moved to approve the Minutes of the Annual Citizen's
Roundtable Meeting of January 27, 2009, seconded by Mr. McDuffie. Upon roll call the
Commission voted as follows: Mr. McDuffie — Yes; Mr. Bernard — Yes; Mayor Ellis —
Yes; Mr. Eliopoulos — Yes; Mr. Fetzer — Yes. Said motion passed with a 5 to 0 vote.
Mr. Bernard moved to approve the Minutes of the Regular Meeting of
February 3, 2009, seconded by Mr. Eliopoulos. Upon roll call the Commission voted as
follows: Mr. Bernard — Yes; Mayor Ellis — Yes; Mr. Eliopoulos — Yes; Mr. Fetzer — Yes;
Mr. McDuffie — Yes. Said motion passed with a 5 to 0 vote.
Mr. McDuffie moved to approve the Minutes of the Special/Workshop
Meeting of February 10,'2009, seconded by Mr. Fetzer. Upon roll call the Commission
voted as follows: Mayor Ellis — Yes; Mr. Eliopoulos — Yes; Mr. Fetzer — Yes; Mr.
McDuffie — Yes; Mr. Bernard Yes. Said motion passed with a 5 to 0 vote.
6. PROCLAMATIONS:
6.A. None
7. PRESENTATIONS:
7.A. Site Plan Review and Appearance Board (SPRAB) Awards
Connor Lynch, Chairman of SPRAB, presented awards to the 2008 Site
Plan Review and Appearance Board (SPRAB) Award Recipients:
EXTERIOR RENOVATIONS
Mercedes Benz
Auto Nation, Inc. (Developer)
Are Avenue, Inc. (Architect)
Thomas White, ASLA -ISA
(Landscape Architect)
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COMMERCIAL
REDEVELOPMENT
New Century Commons
New Century Linton One, LLC (Owner)
Marc Wiener, AIA, (Architect)
Architectural Alliance (Landscape
Architect)
02/17/09
MIXED -USE DEVELOPMENT
Astor Condominiums
Astor - Delray, LLLP (Owner /Developer)
MSA (Architect)
Carter and Associates (Landscape
Architect)
RESIDENTIAL DEVELOPMENT
Harbour House
Porten Custom Homes (Developer)
Kupi Eliopoulos Architects (Architect)
Carter and Associates (Landscape
Architect)
PUBLIC FACILITY
Fire Station 44
City of Delray Beach (Owner)
Currie Sowards & Aguila (Architect)
Dave Bodker (Landscape Architect)
RECREATIONAL
La Hacienda Park
City of Delray Beach
(Owner /Landscaper)
ARCADIS (Developer)
La Hacienda H.O.A.
Community Redevelopment Agency
DOWNTOWN COMMERCIAL
DEVELOPMENT
Mellow Mushroom
Ronald L. Platt (Owner)
Cope Architects, Inc. (Architect)
Carter and Associates (Landscape
Architect)
MURAL DESIGN .
Delray Camera Shop
PGMS, Inc. (Sponsor)
Chris Reich (Owner)
Dana Donaty (Artist)
SIGNAGE
Mellow Mushroom
Be Seen Signs (Contractor)
Ronald L. Platt (Owner)
8. CONSENT AGENDA: City Manager Recommends Approval.
8.A. CONTRACT CLOSEOUT (GO. NO. URNAL) MCCABE
BROTHERS CONSTRUCTION INC. /ATLANTIC DUNES PARK BOARDWALK
REHABILITATION: Approve a Contract Closeout (Change Order No. 1/Final) in the
amount of a $3,205.00 decrease and final payment in the amount of $19,677.10 to
McCabe Brothers Construction, Inc. for completion of the Atlantic Dunes Park
Boardwalk Rehabilitation Project. Funding is available from 334 -4170 -572 -63.48
(General Construction Fund /improvements Other /Atlantic Dunes Boardwalk).
8.B. AMENDMENT TO PARKING LICENSE AGREEMENUCAFFE
LUNA ROSA: Approve an amendment to the Parking License Agreement between the
City and Caff6 Luna Rosa, Inc. reducing the number of parking spaces from forty (40) to
twenty (20) and reassigning the associated parking lots.
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02/17/09
8.C. APPROVAL OF POLL WORKERS FOR THE FIRST
NONPARTISAN ELECTION: Approve the poll workers for the First Nonpartisan
Election to be held on March 10, 2009.
S.D. FUNDING AGREEMENT /COMMUNITY REDEVELOPMENT
AGENCY_(CRA)/ECONOMIC DEVELOPMENT DIRECTOR: Approve a Funding
Agreement between the City and the CRA for funding of the Economic Development
Director position. Funding is available from 001- 6311 -559 -82.01 (General Fund/Aid to
Private Organization/Economic Development Support).
8.E. AGREEMENTMALM BEACH COUNTY/DELRAY ROCKS
FOOTBALL AND CHEERLEADING ANNUAL TRIP: Approve an Agreement with
Palm Beach County for reimbursable funding, not -to- exceed $3,600.00, through the
Recreation Assistance Program (RAP) for the Delray Rocks football and cheerleaders
annual end of the year trip.
8.F. INTERLOCAL AGREEMENT /COMMUNITY REDEVELOPMENT
AGENCY CRA /COMPREHENSIVE PARKING STUDY: Approve an Interlocal
Agreement between the City and Community Redevelopment Agency (CRA) for funding
of a Comprehensive Parking Study to review and analyze parking lot utilization and
public parking inventories within the City; Community Redevelopment Agency (CRA)
will fund 75% or $100,000.00 of the cost, whichever is less, and the City will pay the
balance.
8.G. LICENSE AGREEMENT/EASTER SUNRISE SERVICE: Approve a
license agreement with St. John Primitive Baptist Church for use of the Tennis Stadium
and Tennis Center site for an Easter Sunrise Service to be held on Sunday, April 12, 2009
from 6 :00 a.m. to 9:00 a.m., and waiver of the site rental fee, contingent on the receipt of
a hold harmless agreement.
S.H. REQUEST FOR SUBORDINATION /JOAN A. JOHNSON: Authorize
and approve a request for the City to subordinate its second mortgage position in the
amount of $17,000 to allow Joan A. Johnson to refinance her mortgage and to waive the
current subordination policy to allow refinancing.
8_I. DISASTER RECOVERY INITIATIVE (DRI /HOUSING
REHABILITATION GRANT /CONTRACT AWARDS: Approve two (2) Housing
Rehabilitation grant awards to the lowest responsive bidders for the following projects:
915 S.W. 2nd Avenue to South Florida Construction Services in the amount of $34,764.20
and 228 S.W. 1" Avenue to Haywood Construction in the amount of $38,684.55. Funding
is available from 118 - 1960. 554 -49.19 (Neighborhood Services /Other Current
Charges/Housing Rehabilitation).
02/17/09
S.J. CONTRACT ADDITION (C.O. NO. 1) /WEST CONSTRUCTION,
INC./MILLER PARK IMPROVEMENTS: Approve Contract Addition (C.O. No. 1)
in the amount of $4,326.84 to West Construction, Inc. for the removal and relocation of
fifteen (15) parrot nests from the sports lighting poles at Miller Park, for the Miller Park
Improvements. Funding is available from 334 - 4173 -572 -63.90 (General Construction
Fund/Improvements Other /Other Improvements).
8.K. PROJECT AGREEMENT AMENDMENT/F.I.N.D. /DELRAY
INTRACOASTAL PARK: Approve a Project Agreement Amendment between the
City and Florida Inland Navigation District (F.LN.D.) to amend Exhibit B of the Project
Agreement for Mangrove Park.
8.L. REVIEW OF APPEALABLE LAND DEVELOPMENT BOARD
ACTIONS: Accept the actions and decisions made by the Land Development Boards
for the period February 2, 2009 through February 13, 2009.
S.M. AWARD OF BIDS AND CONTRACTS:
1. Bid award to Close Construction, Inc. in the amount of
$633,527.00 for construction of the Beach Area Reclaimed Water
In -Line Booster Station project. Funding is available from 441 -
5181 -536 -65.96 (Water and Sewer Fund /Other
Improvements/Reclaimed Water Transmission).
2. Bid award to multiple vendors for the purchase of road
construction materials for the City via a Co -op Bid in an estimated
annual cost of $250,000.00. Funding is available from various
departments' operating expense budgets and capital project
accounts.
3. Bid award to multiple vendors (lowest responsive bidders) for the
purchase of medical and drug supplies for the Fire Department via
a Co -op Bid in an estimated annual cost of $160,000.00. Funding
is available from 001 - 2315 -526 -52.20 (General Fund/Operating
Supplies /General Operation Supplies).
4. Contract award to Chaz Equipment Company, Inc. in the amount
of $130,175.00 for the emergency repair of sanitary Lift Station
956 -A, located in the Hamlet Subdivision off West Atlantic
Avenue. Funding is available from 442 - 5178 -536 -63.51 (Water
and Sewer Renewal and Replacement Fund/Improvements
Other /Sewer Mains).
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02/17/09
5. Lease award to Enterprise Leasing Company in the total
annual amount of $51,408.00 for a twelve (12) month lease of six
(6) vehicles for the Vice, Intelligence, and Narcotics (VIN) Unit of
the Police Department. Funding is available from 001- 2115 -521-
44.40 (General Fund/Vehicles).
Mr. Eliopoulos moved to approve the Consent Agenda as amended,
seconded by Mr. McDuffie. Upon roll call the Commission voted as follows: Mr.
Eliopoulos — Yes; Mr. Fetzer — Yes; Mr. McDuffie — Yes; Mr. Bernard — Yes; Mayor
Ellis --- Yes. Said motion passed with a 5 to 0 vote.
9. REGULAR AGENDA:
9.A.A. BID PROTEST/WESTWAY TOWING INC.: Consider a bid protest
filed by Westway Towing Inc. regarding wrecker /towing services for the Police
Department; Request for Proposal (RFP) No. 2009 -06. (Quasi- Judicial Hearing)
The City Attorney stated this item should be conducted as a Quasi - Judicial
Hearing.
Mayor Ellis read the City of Delray Beach procedures for a Quasi - Judicial
Hearing into the record for this item and all subsequent Quasi - Judicial items.
Chevelle D. Nubin, City Clerk, swore in those individuals who wished to
give testimony on this item.
Mayor Ellis asked the Commission to disclose their ex parte
communications. Mr. McDuffie stated he has met with Attorney Michael Weiner and the
owner of Westway and had a package delivered to his home from Weiner, Aronson &
Mankoff, P.A., and received a telephone call from Attorney David Schmidt. Mr. Bernard
and Mayor Ellis both stated that they too met with Attorney Michael Weiner and the
owner of Westway and had a package delivered to their homes and received a telephone
call from Attorney David Schmidt. Mr. Eliopoulos stated he too met with Attorney
Michael Weiner and the owner of Westway and had a package delivered to his home
from Weiner, Aronson & Mankoff, P.A. Mr. Eliopoulos stated approximately one month
ago he also received a telephone call from David Schmidt. Mr. Fetzer stated he also met
with Attorney Michael Weiner regarding Westway Towing.
Brian Shutt, Assistant City Attorney, entered the Agenda backup into the
record and stated this is a bid protest that was filed by Westway Towing in regards to the
Police Towing service bid. Mr. Shutt stated in accordance with the City's bid protest
procedures the City received the protest and filed a response to the protest. He stated the
protest is a requirement in the City's bid specifications that required a bidder to meet
certain minimum requirements and one of those minimum requirements was that they
were conducting a towing business in Palm Beach County during the previous two years.
was
02/17/09
Mr. Shutt stated when the bids were collected the Selection Committee looked at that and
determined that they had not been conducting a towing business for a minimum of two
years in Palm Beach County and City staff concurs with that recommendation as well as
Officer Finley with the Police Department and Patsy Nadal, Acting Purchasing Manager.
Michael Weiner Attorne with Weiner Aronson & Mankoff, P.A. 10
S.E. 1st Avenue, Delray Beach, stated there are a number of matters that are in
contention. Mr. Weiner stated the first matter has to do with the experience requirement
under the RFP (Request for Proposal) and noted that this has been changed four times in
two business days and noted that a geographic requirement has been added. Mr. Weiner
stated the last change in the experience requirement was taken from one simple
benchmark to a complicated set of benchmarks. He stated it is actually a two prong test;
the first one is "Are you regularly engaged in the towing business ?" and the second is
"Whether you have supplied similar services ". Mr. Weiner stated the explanation from
the Purchasing Department is that this would actually increase the number of bids;
however, they find no information whatsoever as to how they determined that a two -
prong test with this complexity would actually increase bids. He stated it begs any level
of credibility that this change was an improvement to the RFP (Request for Proposal)
when you consider that five companies made a bid and only two qualified. Mr. Weiner
stated they gave an unfair competitive advantage to Beck's Towing which was one of
only two bidders that ultimately qualified. He stated Westway was doing this through the
open responders program and Westway has been and continues to take calls on the
Florida Turnpike in Palm Beach County so it is giving similar services. Mr. Weiner
referenced towing tickets for Westway Towing vehicles hired by the City of Delray
Beach and noted that it appears the present contractor was unable to tow the large
vehicles and therefore Westway was asked to be the towing company for these larger
vehicles in the City. He referenced the scoring sheets and stated Westway would not
charge for road calls. Mr. Weiner stated the estimated savings is in excess of $25,000.00
and that makes Westway bid $172,500.00 which is more than the Beck's bid. He stated
this is mentioned on the scoring sheets; however, Westway was never given credit for
this and noted that this is unfair advantage #2. Mr. Weiner stated the documented
response times for Westway Towing equal or exceed Beck's. Mr. Weiner made
reference to the tow vehicle inspection forms from Palm Beach County verifying that
there were eight vehicles that were qualified in Palm Beach County not four. He stated to
score based upon the fact that there were fewer vehicles available was incorrect and is an
unfair competitive advantage to score otherwise. MT. Weiner stated the last place where
there was an unfair competitive advantage concerns Mr. Goldstein's driver's license and
incorrectly there was an assumption that his license was revoked. Mr. Weiner stated he
does not think there is one set of rules for one bidder and another set of rules for another
bidder. Mr. Weiner stated that the bid process is giving an unfair competitive advantage
to the present bid holder and urged the City Commission to address the situation and
award the bid to Westway.
Mayor Ellis stated if anyone from the public would like to speak in favor
or in opposition of the bid protest, to please come forward at this time.
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02/17/09
David Floering, owner of Eastern Towing, stated he did not participate
in this project because he knew that it was geared toward Beck's Towing. He stated the
whole process is flawed and both companies Beck's and Westway employ an ambulance
chaser type business model where when the company gets the call for the tow their intent
is try and get the job for the body shop. Mr. Floering stated this is how they make the
money to pay the franchise fee not from the towing. Mr. Floering entered a Court
document into the record of an incident that happened at Westway's tow yard three
months ago and suggested that the City reject the entire process because it is flawed. He
stated everything is designed for Beck's Towing and suggested that the City use a
rotational system which is fair and honest. He stated the City will lose its franchise fee
but it is a fair way to do business.
Pauline Moody, 609 S.W. 8th Avenue, Delray Beach, expressed concern
over the tow bid and suggested that the City do away with both bids in all fairness. Ms.
Moody stated when someone gets into an accident people have the right to select the
towing company they want.
David Schmidt, Attorney representing Beck's Towing, stated Westway
submitted documentation to show that it had an interest in Open Road Responders, LLC
which has the towing contract for the turnpike. Mr. Schmidt stated under Florida law
Open Road Responders, LLC is recognized as a separate entity from Westway Towing
and the fact that Westway may have an interest in that company does not prove that it is
doing towing in Palm Beach County. Mr. Schmidt stated Mr. Weiner is trying to
manipulate the bid after the bids were submitted and noted that the bid documents clearly
define what the franchise fee is and how the points are going to be scored. He stated the
franchise fee is the payment to the City and is not forgiveness of some charge or not
charging something else. Mr. Schmidt stated if Westway wanted to include that in its bid
then they should have and urged the Commission to follow staff s recommendation and
deny the bid protest.
There being no one else who wished to address the Commission regarding
the bid protest, the public hearing was closed.
There was no cross - examination.
Mr. Shutt gave the following rebuttal:
. . Mr. Shutt asked Patsy Nadal, Acting Purchasing Manager, if Beck's
Towing met all the requirements as far as an original and a copy when they submitted
their bid. Ms. Nadal stated Beck's Towing submitted one binder that contained two bids
in it. She stated at the bid openings staff usually takes out the first copy and reads it
because staff only needs one copy to read. Staff reads the bid and goes back to their
office to make sure everything is in order.
02/17/09
Officer Jim Finley stated response times were submitted by each vendor
that submitted a bid packet. He referenced Section 3 of Westway's towing packet which
states "our response time because of our ability to keep trucks in the City of Delray
should be 25 minutes." and noted that this is what staff had to go by. Officer Finley
stated on January 7, 2009, when staff did the actual inspections of the companies, Mr.
Goldstein presented him with a second package that had certificates and other response
times which this information was supposed to be submitted at the original date of bid
openings on December 15, 2008. Officer Finley expressed concern over the "no charge
for road calls" and it was not until January 7, 2009 (day of inspection) did Mr. Goldstein
present a letter stating that he would tow City vehicles for free which is already in the bid
packets. He stated as a committee they could not consider the things that were submitted
a month later because it would have been unfair to the other companies who submitted all
of their information on time.
Mr. Weiner gave the following rebuttal:
Mr. Weiner stated the Commission has the right to award the purchase in
the best interest of the City. As to the exact time that the "free" services were given they
were on the scoring sheet and were never counted. He stated the City has all rights to
reject all bids or to work with bidders. Mr. Weiner stated an "LLC" is a pass - through
type of company and there are no trucks owned by Open Road Responders and is
something they have to do for the Florida turnpike and noted that Westway was the
company that was on the seen and they were doing towing services for the City for those
years. Mr. Weiner stated there are other unfair competitive advantages and if some of
them exist then that is enough to reconsider the bids tonight. Mr. Weiner urged the
Commission to reconsider this process and rule in favor of Westway or alternatively
consider another proposal such as a rotational system.
Mr. Bernard asked why the City chose the two -year requisite for having to
tow in Palm Beach County for two years. Mr. Shutt stated it is his understanding that if
you look at some of the bid documents in the past the City started out in the 2004
documents with approximately a five year experience requirement and in an addendum to
that bid the City then modified it to a three year experience requirement because the City
wanted to make sure that they did not unfairly exclude any bidders. Mr. Shutt stated
when the City came to bid this go around in the 2008 bid which is the first go around of
this 2009 bid, staff had language in the bid where you have to be towing in Palm Beach
County for two years with a one year requirement that you be towing in the storage area.
This requirement was removed because staff felt it would be too restrictive and therefore
stayed with the two years. Mr. Shutt stated staff felt that two years would give adequate
amount of time to review a company's history and to make sure that a company had a
history of towing especially in Palm Beach County.
Mr. Bernard asked who made the decision. Mr. Shutt stated the City
Attorney's office along with the Police Department. Mr. Bernard asked if staff could
take a look at how the person performed in Broward County. Mr. Shutt stated if there
were records there then staff probably could have done this.
02/17/09
Mr. Bernard inquired about Beck's response time for the City of Delray Beach. Officer
Finley stated the reported response time to accidents in the City of Delray Beach is 11
minutes. Mr. Bernard stated in Mr. Finley's email dated January 20, 2009 he did a check
on Mr. Goldstein's driver's license but if he did not want to consider anything else in
regards to the documents that he provided, why was it necessary to know if his license
was suspended or not. In response, Officer Finley stated whenever the Police
Department is dealing with a new contractor there is a background check that is
performed and noted that there was a background check performed on all the owners for
all bids.
Mr. McDuffie stated the City does four major contracts a year (beach,
waste, and towing) and the beach contract and the towing contract have drawn criticism
and contention. He expressed concern over this along with some of the things that
Commissioner Mackenson has expressed. Mr. McDuffie stated if the City is going to
background check someone it would seem that it would be part of the bid package so that
everyone realizes when they submit a bid into our municipality that they are going to get
a background check. W. McDuffie stated the Commission had previously discussed that
a big package like this should be on a Workshop Meeting before it is released so that the
Commission understood what was in the bid before the bid hit the street to help avoid
situations that they are now in tonight. Mr. McDuffie expressed concern that the City is
releasing documents in which we do not particularly stipulate every requirement that is
going to be analyzed in that document.
Mr. Eliopoulos briefly discussed the two -year requirement and stated this
was to find out how somebody worked within the County but also them being familiar
with the City's roads and he assumes that when you are familiar with the roads you are
going to get a quicker response time as opposed to someone who is out of the area. Mr.
Shutt stated this was the logic behind the two -year requirement. With regard to Mr.
Weiner's comments about "free services" that have a value to it, Mr. Eliopoulos stated if
this is a requirement for everybody wouldn't Beck's number go up. Mr. Shutt stated the
bid is pretty specific because you put a number in and you have to tow the City's vehicles
for free. Mr. Eliopoulos asked why the other two bids were thrown out. Ms. Nadal
stated Purchasing does not allow being on their selection committee.
Officer Finley stated Gardens towing did not have a Class "B" tow truck
which is part of the City's requirements and they are located in Lake Worth which is
north of Hypoluxo Road. He stated they bought a building in Boynton and he has a letter
from the City of Boynton that the building is not fit to be moved into yet. Officer Finley
stated the other company did not have the facility to store the cars the Police Department
requires them to store and they did not have two of the two trucks that were required.
Mr. Eliopoulos inquired about the rotation system and asked why the City feels that this
is the better way to go. Officer Finley stated about 18 years ago they did have a rotation
wrecker and there were 5 or 6 rotation wreckers and noted it was a cut - throat business.
He stated they would race each other to accident scenes and see who could get the most
expensive car involved in that crash and it was a nightmare for dispatch to keep track of
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02/17/09
Brief discussion continued between the Commission and staff.
Mayor Ellis asked Mr. Shutt if he feels the way we have done this bid and
how it has been handled and processed that has got us to the point that the City is at right
now was the best that we could do. Mr. Shutt stated with each bid you can always do
better because you always learn something from every time you go out to bid. Mayor
Ellis asked Mr. Shutt if he thinks there is anything that would have improved the
processing of this particular bid there is a fundamental difference between bidders who
want a rotation system and the Police Department that does not want a rotation system.
Mayor Ellis asked how long Officer Finley has been dealing with the
towing company Beck's. Officer Finley stated he has been dealing with the towing
company for the last four years.
Brief discussion followed between Officer Finley and Mayor Ellis.
Mr. Fetzer commented about how the Commission talked about discussion
of these major bids at a Workshop Meeting particularly on the more controversial bids to
get some common understanding between the staff and the Commission about what the
Commission's overall goals are. Mr. Fetzer stated he met one -on -one with Officer
Finley, the City Attorney, and Patsy Nadal from Purchasing and talked in depth about the
pros and cons of the rotation system versus not rotating. Mr. Fetzer stated he was
comfortable at that point that they had put together a plan to bid this where it was not
going generate all this controversy. He stated we have a responsibility to keep this whole
process as fair and precise as we possibly can. Mr. Fetzer asked if the City followed the
legal process with the bid properly. Mr. Shutt stated that the City followed the proper
legal process and noted that the disqualification of Westway Towing was based on the
fact that they were not an operating business in Palm Beach County for two previous
years and was not based on anything else.
The City Attorney briefly reviewed the Board Order with the Commission
who made findings according to their consensus (attached hereto is a copy and made an
official part of the minutes).
Mr. Fetzer moved to adopt the Board Order as presented (denying the bid
protest), seconded by Mr. Eliopoulos. Upon roll call the Commission voted as follows:
Mr. Fetzer — Yes; Mr. McDuffie — No; Mr. Bernard — No; Mayor Ellis — Yes; Mr.
Eliopoulos — Yes. Said motion DENYING the bid protest was passed with a 3 to 2
vote, Commissioner McDuffie and Commissioner Bernard dissenting.
_ . & Recovery, Inc. with annual
Contract award to Becks Towing, ,
franchise fees to be paid to the City in the amount of $162,400.00 for wrecker /towin
services for the Police Department. Addendum
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02/17/09
Mr. Fetzer moved to approve the Contract Award to Beck's Towing &
Recovery, Inc., seconded by Mr. Eliopoulos. Upon roll call the Commission voted as
follows: Mr. McDuffie — Yes; Mr. Bernard — No; Mayor Ellis --- Yes; Mr. Eliopoulos —
Yes; Mr. Fetzer --- Yes. Said motion passed with a 4 to 1 vote, Commissioner Bernard
dissenting.
At this point, the time being 7:40 p.m., the Commission moved to the duly
advertised Public Hearings portion of the Agenda.
10. PUBLIC HEARINGS:
10.A. ORDINANCE NO. 06 -09 FIRST READING /FIRST PUBLIC
HEARING): Consider an ordinance providing for the reclassification of twenty (20)
properties in the Marina Historic District. If passed, a second public hearing will be held
on March 3, 2009.
The caption of Ordinance No. 06 -09 (Version 1) is as follows:
ORDINANCE NO. 06-09 (Version 1)
AN ORDINANCE OF THE CITY COMMISSION OF
THE CITY OF DELRAY BEACH, FLORIDA,
PROVIDING FOR THE RECLASSIFICATION OF 20
PROPERTIES IN THE MARINA HISTORIC DISTRICT,
PROVIDING A GENERAL REPEALER CLAUSE, A
SAVING CLAUSE, AND AN EFFECTIVE DATE.
The caption of Ordinance No. 06 -09 (Version 2) is as follows:
ORDINANCE NO. 06-09 (Version 2)
AN ORDINANCE OF THE CITY COMMISSION OF
THE CITY OF DELRAY BEACH, FLORIDA,
PROVIDING FOR THE RECLASSIFICATION OF 19
PROPERTIES IN THE MARINA HISTORIC DISTRICT,
PROVIDING A GENERAL REPEALER CLAUSE, A
SAVING CLAUSE, AND AN EFFECTIVE DATE.
(The official copy of Ordinance No. 06 -09 is on file in the City Clerk's
office.)
For the record, Mr. Eliopoulos stated with regard to Version 1 and Version
2, Version 2 talks about a house that he was the architect of; however, he does not have
contact with that client anymore. He stated he did the carriage house in the front but
there is no continuing relationship there.
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02/17/09
The City Attorney read the captions of both ordinances. A public hearing
was held having been legally advertised in compliance with the laws of the State of
Florida and the Charter of the City of Delray Beach, Florida.
Mr. Eliopoulos stated this house is a historic Fontaine Fox house (238 S.E.
7t" Avenue). He stated the district came in approximately 1986 and in 1998 the house
was renovated (an addition was put on). Mr. Eliopoulos stated that the exterior windows
and doors are still within the house.
Ron Hoggard, AICP, Principal Planner, stated the City hired GAI
Consultants, Inc. to conduct a survey from April -June 2008 and accepted the final survey
report from them by resolution on December 9, 2008. Mr. Hoggard stated the difference
in these two ordinances is the one property 238 S.E. 7t' Avenue. He stated the survey
report and what the Commission accepted in the resolution was to do designate 19
properties from non - contributing to contributing and designate one property from
contributing to non - contributing. Mr. Hoggard stated the survey report stated that the
property should be reclassified because it was no longer contributing due to inappropriate
new construction on the property and that the new construction book dominated and
completely obscured the original one -story historic structure.
At its meeting of February 10, 2009, the Historic Preservation Board
(HPB) reviewed Ordinance No. 06 -09 and recommended approval of Version #2 which is
to retain the 238 S.E. 7`h Avenue building as contributing. The Downtown Development
Authority (DDA) recommended approval of Version #1 but in actuality the property in
question is not in the DDA district. Mr. Hoggard stated he presented this to the
Community Redevelopment Agency (CRA) and he did not review individual versions
because the property is not in the CRA district. Staff recommends accepting Version #1
which follows the survey report that the City had the consultant accomplish and the
resolution that the Commission passed in December 2008. Mr. Hoggard stated the reason
for this is that we are increasing the period of significance for historic structures that
ended in 1943 -1960 to add post -war construction and that is what is adding the additional
structures that make them contributing.
Mayor Ellis declared the public hearing open.
Joann Peart, 107 N.W. 9th Street, Delray Beach, stated she believes the
original Fontaine Fox cottage is still there but is partially covered up in the front by an
addition. She stated if you took the 1990's additions off you would still have the
Fontaine Fox cottage. Mrs. Peart stated the whole inside of the cottage is still the same
and all the exterior windows are still there and the reason the owner built the addition
separate from the house was to leave what was left of the Fontaine Fox cottage visible
and in tact. The owner came before HPB because they were in a historic district and
applied for the historic abatement relief and was granted that by the Board. In her
opinion, Mrs. Peart stated this is not a good precedent to set to tell someone that they
have to build the addition separate from the building that is there because what is there is
historic and then the owner comes back in and applies for the historic tax relief credit and
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02/17/09
then later they are told they are no longer in the district and the tax relief credit that was
granted is no longer correct anymore. She noted that the Fontaine Fox House is very
historic and if you took the 1990's addition off it you would still have the whole cottage
there. Mrs. Peart stated HPB was completely in agreement with everything else and they
were all in agreement with this point as well. She stated she believes the people who live
there want to staff and keep their tax relief too.
Joe Snider, 1010,
N.E. 8th Avenue, Delrgy Beach (Architect with a
Masters Degree in Historic Preservation), commended the City for continuing to re-
evaluate and revisit the historic districts and to revisit the periods of significance to keep
incorporating and understand the historic progression of the City. Mr. Snider reiterated
Mrs. Peart's point that putting an addition onto a structure does not necessarily destroy its
significance but it is when you start knocking things down in the existing structure.
There being no one else from the public who wished to address the
Commission regarding Ordinance No. 06 -09, the public hearing was closed.
Prior to the vote, Mr. Fetzer asked Mr. Hoggard to identify where the
property is located. Mr. Fetzer stated if we pass Version #2 would this cause any
complications from staff's perspective. Mr. Hoggard stated staff is trying to follow the
recommendations of the survey report per the consultant.
Mr. McDuffie asked if the occupant of 238 S.E. 7th Avenue maintains a
historic exemption on the home. Mr. Hoggard stated the occupant has a tax payment.
Mr. Eliopoulos moved to approve Ordinance No. 06 -09 (Version #2) on
First Reading/First Public Hearing, seconded by Mr. Bernard. Upon roll call the
Commission voted as follows: Mr. McDuffie — Yes; Mr. Bernard — Yes; Mayor Ellis —
Yes; Mr. Eliopoulos — Yes; Mr. Fetzer — Yes. Said motion passed with a 5 to 0 vote.
10.B. ORDINANCE NO. 07 -09 (FIRST READING /FIRST PUBLIC
HEARIN(;): A city initiated amendment to the Land Development Regulations (LDR)
Section 4.49 (G), "Supplemental District Regulations ", and Section 4.4.13 (G) (1),
"Central Core and Beach Area Supplemental Regulations ", to change the parking
requirements for business and professional offices within certain portions of these zoning
districts. If passed, a second public hearing will be held on March 3, 2009.
The caption of Ordinance No. 07 -09 is as follows:
AN ORDINANCE OF THE CITY COMMISSION OF
THE CITY OF DELRAY BEACH, FLORIDA,
AMENDING THE LAND DEVELOPMENT
REGULATIONS OF THE CODE OF ORDINANCES, BY
AMENDING SECTION 4.4.9, "GENERAL
COMMERCIAL (GC) DISTRICT ", SUBSECTION (G)
"SUPPLEMENTAL DISTRICT REGULATIONS ", AND
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02/17/09
SECTION 4.4.13, "CENTRAL BUSINESS (CBD)
DISTRICT ", SUBSECTION (G) "SUPPLEMENTAL
DISTRICT REGULATIONS ", SUB - SUBSECTION (1)
CENTRAL CORE AND BEACH AREA
SUPPLEMENTAL REGULATIONS ", TO CHANGE THE
PARKING REQUIREMENTS FOR BUSINESS AND
PROFESSIONAL OFFICES WHITHIN CERTAIN
PORTIONS OF THESE ZONING DISTRICTS;
PROVIDING A SAVING CLAUSE, A GENERAL
REPEALER CLAUSE, AND AN EFFECTIVE DATE.
(The official copy of Ordinance No. 07 -09 is on file in the City Clerk's
office.)
The City Attorney read the caption of the ordinance. A public hearing was
held having been legally advertised in compliance with the laws of the State of Florida
and the Charter of the City of Delray Beach, Florida.
Ron Hoggard, AICP, Principal Planner, stated staff received a memo from
the Chamber of Commerce Economic Development Committee outlining some proposals
to change the City's parking requirements for office development in Delray Beach. Mr.
Hoggard stated several of the recommendations were included in an LDR text
amendment adopted by the City Commission on January 20, 2009. Another proposal of
that Committee was to expand the area on the Federal Highway corridor between Stn and
6tn Avenues where the parking requirement for offices would be reduced to 1 space per
300 square feet of net floor area instead of the requirement that it is now. He stated the
impact of this reduces the parking requirement for office development and has more of an
impact on smaller buildings than it does on larger buildings because the requirement for
parking changes (4 spaces per 1,000 square feet of net floor area up to 3,000 square feet
and then 3.5 spaces per 1,000 square feet). Mr. Hoggard stated the parking requirement
of a 10,000 square foot office building will be reduced by 4 spaces (from 37 parking
spaces to 33 parking spaces) and when you get buildings that are much larger there is
very little change in the parking requirement. Staff feels this will have a big impact on
allowing additions to smaller office buildings in the downtown area with minimal impact
on the parking requirement.
At its meeting of January 26, 2009, the Planning and Zoning Board
recommended approval with a 5 to 0 vote (Miller absent and Pike stepped down). The
Community Redevelopment Agency (CRA) and the Downtown Development Authority
(DDA) recommended approval of the proposed text amendment. The Parking
Management Advisory Board (PMAB) will not meet until February 24, 2009 and staff
will report their recommendation to the Commission a second reading. Staff
recommends approval on First Reading.
Mayor Ellis declared the public hearing open.
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02/17/09
Joe Snider, 1_010 N.E. _8th Avenue, Delray _Beach (Architect with a
Masters Degree in Historic Preservation), stated one of the things the Commission
wanted to do was to go green and reduce parking requirements. He stated in green
buildings they try to put in less parking because paving and parking creates more
stormwater runoff and it creates more incentive for people to find alternative means of
transportation. Mr. Snider supports this ordinance and feels this would be a good thing.
There being no one from the public who wished to address the
Commission regarding Ordinance No. 07 -09, the public hearing was closed.
Mr. Fetzer moved to approve Ordinance No. 07--09 on First Reading/First
Public Hearing, seconded by Mr. McDuffie. Upon roll call the Commission voted as
follows: Mr. Bernard — Yes; Mayor Ellis — Yes; Mr. Eliopoulos — Yes; Mr. Fetzer — Yes;
Mr. McDuffie — Yes. Said motion passed with a 5 to 0 vote.
10.C. ORDINANCE NO. 08 -09: City initiated amendment to the Land
Development Regulations (LDR) Section 2.4.3(K)(1)(bb), "Single Family Overlay
District Site Plan Review ", to increase the application processing fee for Single Family
Overlay District Site Plan Review Applications and associated renaming to North
Beach/Seagate and Ocean Neighborhood Overlay District Review.
The caption of Ordinance No. 08 -09 is as follows:
AN ORDINANCE OF THE CITY COMMISSION OF
THE CITY OF DELRAY BEACH, FLORIDA,
AMENDING THE LAND DEVELOPMENT
REGULATIONS OF THE CITY OF DELRAY BEACH,
FLORIDA, BY AMENDING SECTION 2.4.3(x), "FEES ",
SUBSECTION (1), "DEVELOPMENT APPLICATIONS ",
TO PROVIDE FOR AN INCREASE IN THE
APPLICATION PROCESSING FEE FOR SINGLE
FAMILY OVERLAY DISTRICT SITE PLAN REVIEW
APPLICATIONS AND THE RENAMING OF THE
OVERLAY DISTRICT; PROVIDING A SAVING
CLAUSE, A GENERAL REPEALER CLAUSE, AND AN
EFFECTIVE DATE.
(This official copy of Ordinance No. 08 -09 is on file in the City Clerks
office.)
The City Attorney read the caption of the ordinance. A public hearing was
held having been legally advertised in compliance with the laws of the State of Florida
and the Charter of the City of Delray Beach, Florida.
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02/17/09
Ron Hoggard, AICP, Principal Planner, stated this ordinance increase the
fee for development in the North Beach/Seagate and Ocean Neighborhood Overlay
District and changes the name of that district within the fee schedule. He stated the
consultant has given the City a $100.00 increase from the consultant who reviews this
and noted that staff does partial review and the consultant does review for compliance
with the guidelines. Mr. Hoggard stated the fee is going from $1,460.00 to $1,560.00 and
staff recommends approval.
Mayor Ellis declared the public hearing open. There being no one from
the public who wished to address the Commission regarding Ordinance No. 08 -09, the
public hearing was closed.
Mr. McDuffie moved to approve Ordinance No. 08 -09 on Second and
FINAL Reading, seconded by Mr. Eliopoulos. Upon roll call the Commission voted as
follows: Mayor Ellis — Yes; Mr. Eliopoulos — Yes; Mr. Fetzer; Mr. McDuffie — Yes; Mr.
Bernard — Yes. Said motion passed with a 5 to 0 vote.
IO.D. ORDINANCE NO. 09 -09: An ordinance amending Section 96.03,
"Establishment of Limits In Which Bulk Storage Of Liquefied Petroleum Gases To Be
Restricted ", Section 96.05, "Fire Hydrants ", Section 96.16, "Certain Codes Adopted By
Reference ", and Section 96.46, "Above Ground Installation", to update the City's Code
of Ordinances in order to reflect recent changes in the Fire Prevention Code Standards.
The caption of Ordinance No. 09 -09 is as follows:
AN ORDINANCE OF THE CITY COMMISSION OF
THE CITY OF DELRAY BEACH, FLORIDA,
AMENDING THE CODE OF ORDINANCES OF THE
CITY OF DELRAY BEACH, BY AMENDING
SECTIONS 96.03, "ESTABLISHMENT OF LIMITS
IN WHICH BULK STORAGE OF LIQUEFIED
PETROLEUM GASES TO BE RESTRICTED ", 96.05,
"FIRE HYDRANTS ", 96.16, "CERTAIN CODES
ADOPTED BY REFERENCE ", AND 96.46, "ABOVE
GROUND INSTALLATION" TO UPDATE THE
CITY'S CODE OF ORDINANCES IN ORDER TO
REFLECT RECENT CHANGES IN THE FIRE
PREVENTION CODE STANDARDS; PROVIDING A
SAVING CLAUSE, A GENERAL REPEALER
CLAUSE, AND AN EFFECTIVE DATE.
(The official copy of Ordinance No. 09 -09 is on file in the City Clerk's
office.)
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02/17/09
The City Attorney read the caption of the ordinance. A public hearing was
held having been legally advertised in compliance with the laws of the State of Florida
and the Charter of the City of Delray Beach, Florida.
John Tomaszewski, Assistant Fire Chief, stated this ordinance amends the
Code to allow an increase from 300 to 600 gallons on an aboveground fuel storage tanks
and also every three years per State Statute they have to amend the Fire Code.
Mayor Ellis declared the public hearing open. There being no one from
the public who wished to address the Commission regarding Ordinance No. 09 -09, the
public hearing was closed.
Mr. Bernard moved to approve Ordinance No. 09 -09 on Second and
FINAL Reading, seconded by Mr. McDuffie. Upon roll call the Commission voted as
follows: Mr. Eliopoulos — Yes; Mr. Fetzer --- Yes; Mr. McDuffie — Yes; Mr. Bernard —
Yes; Mayor Ellis — Yes. Said motion passed with a 5 to 0 vote.
At this point, the Commission moved to Item 11, Comments and
Inquires on Non - Agenda Items from the City Manager and the Public.
I1.A. 'City Manager's response to prior public comments and inquiries.
The City Manager stated in January 2009 Ms. Moody had registered a
complaint about street lighting in the vicinity of the cemetery and complained that some
of the lighting was not working and the area was dark. He stated staff has checked the
aerial lighting on S.W. 8th Avenue near the cemetery and at the time staff checked, all the
existing lighting was working and met City standards for lumens and spacing. The City
Manager stated by City policy a lumen level in a residential area can be increased if the
City receives a petition to do so from a majority of the property owners in the area
affected and staff has notified Ms. Moody of that.
Secondly, in January 2009, the City Manager stated Mrs. Finst had raised
some questions about the CVS Pharmacy Office /Depot property and a proposal sometime
in the past for a review committee regarding the North Federal Highway area. The
Planning and Zoning staff does not have any recollection of a discussion for a committee
to be formed to review that area again. The City Manager stated the City has also
received plans this afternoon for review for official certification for the CVS and the
architectural elevations as well as the site plan were already approved by SPRAB (Site
Plan Review and Appearance Board) so any future committee that might look at this will
not impact this current project providing it either becomes vested or is granted an
extension.
11. From the Public.
02/17/09
11.B.1. Ken MacNamee 1049 Del Haven Drive Delray Beach stated he sent
the City Commission a five page report regarding the garbage issue. He stated he
received an email today telling him that the Commission has not had enough time to
review it. Mr. MacNamee referenced his first recommendation on page 4 of the report
and stated he would like an answer from the City Commission.
11.13.2. Robert Kuhn, 531 N.W. 13'" Street, Delray Beach, current
Commander of Veterans of Foreign Wars at Post 4141 chartered in this city on June
21, 1945 and a resident of the City of Delray Beach since 1979 expressed concern
over the parking problems due to the construction of Worthing Place, the remodeling of
the former Atlantic Avenue Eye Care Center and the former City Limits property. He
stated since the construction has begun they have lost the use of five handicapped parking
spaces within a 250 foot radius of their property and are faced with dilemma of hazard
and unhealthy conditions being created by this progress. Mr. Kuhn pleaded with the
Commission to help them through this difficult time with respect to parking and health
issues that are and will be prevalent for quite some time to come.
1LB.3. Alice Finst, 707 Place Tavant, Delray Beach, representing the Atlantic
High School Advisory Council (SAC), stated on March 21, 2009 crossing guards and
police patrol will be eliminated for the students coming out of Atlantic High School and
entering Atlantic High School. Mrs. Finst stated this is a serious safety issue and asked
that this matter be looked into.
Secondly, Mrs. Finst stated she attends the SPRAB meetings and they
have been very quick because there are only 1 -2 items on the Agenda and the meeting for
this week is cancelled. She made reference to a magazine that talks about building permit
fees going from $1,700,000.00 to $2,000,000.00 and asked where the money is coming
from if nothing is going through SPRAB for this proposal. She stated the proposed
numbers do not match with the reality of where we are today.
11.B.4. Glenn_ Goss, resident of the City of Delray Beach, briefly discussed a
recent article in Forbes Magazine where his name is associated with a story about public
pension plans in the most negative way. Mr. Goss stated because the article seems to
have become a fervent topic for discussion amongst various homeowners associations,
the political arena and many forums in between, he believes it is incumbent for him to
comment on the matter at this time. He provided a detailed written response for the
Commission and the public.
11.B.5. _Mike McCleary, Delray Beach Firefighters (District Vice President of
the Local Union ), stated Jim Tabeek will be taking his place at the beginning of March.
Mr. McCleary stated there has been a very troubled relationship between the Fire- Reseue
Department Union and the City Commission. Mr. McCleary addressed the alleged
comments made by Mr. Harden in the newspaper.
12. FIRST READINGS:
None
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02/17/09
At this point, the time being 8:22 p.m., the Commission moved to Item
9.A.A.A.A, of the Regular Agenda.
9.A.A.A.A: REVIEW OF APPEALABLE LAND DEVELOPMENT BOARD
ACTIONS PRESERVATION BOARD, ITEM #2): Accept the actions
and decisions made by the Land Development Boards for the period February 2, 2009
through February 13, 2009.
Commissioner Eliopoulos declared that he was originally the architect for
one of the properties.
Mr. Bernard moved to receive and file the report as to Item S.L. (HPB #2),
seconded by W. Eliopoulos. Upon roll call the Commission voted as follows: Mr.
Fetzer — Yes; Mr. McDuffie — Yes; Mr. Bernard — Yes; Mayor Ellis — Yes; Mr.
Eliopoulos — Yes. Said motion passed with a 5 to 0 vote.
9.A. WAIVER REQUESTS/TASTE RESTATURANT:
Consider two (2) waiver requests, one to Land Development Regulation (LDR) Section
4.6.16(H)(3)(J), "New Multiple Family, Commercial, and Industrial Development ",
which requires a five (5) foot wide landscape island at the end of a ten (10) space parking
row, and the other to Land Development Regulation (LDR) Section 4.6.14(A)(1),
"Visibility at Intersections ", which requires that a 20' sight triangle is provided at the
intersection of the handicap parking space and the east alley driveway in association with
the Taste Restaurant located at 169 -171 N.E. 2nd Avenue. (Quasi Judicial Hearing)
Chevelle D. Nubin, City Clerk, swore in those individuals who wished to
give testimony on this item.
Mayor Ellis asked the Commission to disclose their ex parte
communications. The Commission had no ex parte communications to disclose.
Ron Haggard, AICP, Principal Planner, entered the Planning and Zoning
Department project file #2009 -037 into the record.
Mr. Hoggard stated this is for the City Commission to approve two
waivers associated with Taste Restaurant which was approved by the Site Plan Review
and Appearance (SPRAB) on January 14, 2009 and the Board also recommended
approval of both waivers. One waiver is to LDR Section 4.6.16(H)(3)(i) which requires a
five (5) foot wide landscape island at the end of a 10 space parking row. The
development proposal does not comply with either of these requirements, and thus, the
applicant ahs requested the waivers. Mr. Hoggard stated pursuant to LDR Section
2.4.7(B)(5) prior to granting a waiver the approving body must make a finding that
granting the waiver (1) shall not adversely affect the neighborhood area, (2) shall not
significantly diminish the provision of public facilities, (3) shall not create an unsafe
situation, and (4) does not result in the grant of a special privilege. This overall project is
supported by SPRAB, the CRA, DDA as well as Pineapple Grove Main Street.
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02/17/09
The second waiver involves the site visibility triangle to LDR Section 4.6.14(A)(1) which
requires that a 20 foot sight triangle is provided at the intersection of the handicap
parking space and the east alley driveway. The findings for this waiver are the same as
the other waiver and the City has supported waivers of this type for other projects in the
CBD district. Mr. Hoggard stated this was reviewed by SPRAB, the CRA, DDA, and
Pineapple Grove Main Street and they all recommended approval. Staff recommends
approval of the waiver to the landscape strips going from five feet to four feet for the
southern portion of the handicap parking space and zero (0) feet on the northern portion
of the handicap parking space and the visibility triangle from 20 feet to 2 feet.
For the record, Mr. Hoggard noted a correction to the LDR Section and
stated it should read LDR Section 4.6.16(H)(3)(J) not LDR Section 4.6.16(H)(3)(i).
Bob Currie, 134 N.E. 1st Avenue, Delray Beach (Architect for the
project), stated the 2 foot diameter concrete pole is actually two feet into the alley and all
the more reason that nobody is going to be zooming out of there. He stated he feels this
will be safe.
Mayor Ellis stated if anyone from the public would like to speak in favor
or in opposition of the waiver requests, to please come forward at this time. There being
no one from the public who wished to address the Commission regarding the waiver
requests, the public hearing was closed.
There was no cross - examination or rebuttal.
The City Attorney briefly reviewed the Board Order with the Commission
who made findings according to their consensus (attached hereto is a copy and made an
official part of the minutes).
Mr. Bernard asked why there was a change to the landscape island on the
north side from two (2) feet to zero (0) feet. In response, Mr. Hoggard stated SRAB the
report was considering this area here as the landscape strip but that is not how it is
measured because it has to be parallel with the parking space. Mr. Haggard stated the
Planning Director caught this error and corrected it.
Mr. Bernard moved to adopt the Board Order as presented, seconded by
Mr. McDuffie. Upon roll call the Commission voted as follows: Mr. McDuffie — Yes;
Mr. Bernard — Yes; Mayor Ellis — Yes; Mr. Eliopoulos — Yes; W. Fetzer -- Yes. Said
motion passed with a 5 to 0 vote.
9.B. THIS ITEM HAS BEEN WITHDRAWN FROM THE AGENDA.
9.C. WAIVER REQUEST/SAVOR THE AVENUE: Consider a waiver
request to Land Development Regulations (LDR) Section 4.6.7(F)(3)(f), "Special Event
Non - Roadway Banner Signing ", to allow banners to be hung more than fourteen (14)
days prior to Savor the Avenue being held March 26, 2009. (Quasi - Judicial Hearing)
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02/17/09
Chevelle D. Nubin, City Clerk, swore in those individuals who wished to
give testimony on this item.
Mayor Ellis asked the Commission to disclose their ex parte
communications. The Commission had no ex parte communications to disclose.
Robert A. Barcinski, Assistant City Manager, stated staff received a
request from the Downtown Marketing Cooperative to waive the requirement and allow
banners to be hung more than fourteen (14) days prior to Savor the Avenue event being
held on March 26, 2009.
Marjorie Ferrer, Executive Director of the Downtown Marketing
Cooperative, 1420 N. Swinton Avenue Delray Beach (Applicant), stated she is
present for any questions the Commission may have.
Mayor Ellis stated if anyone from the public would like to speak in favor
or in opposition of the waiver request, to please come forward at this time. There being
no one from the public who wished to address the Commission regarding the waiver
request, the public hearing was closed.
There was no cross - examination or rebuttal.
The City Attorney briefly reviewed the Board Order with the Commission
who made findings according to their consensus (attached hereto is a copy and made an
official part of the minutes).
Mr. Eliopoulos moved to approve the Board Order as presented, seconded
by Mr. McDuffie. Upon roll call the Commission voted as follows: Mr. Bernard --- Yes;
Mayor Ellis — Yes; Mr. Eliopoulos — Yes; Mr. Fetzer — Yes; Mr. McDuffie Yes. Said
motion passed with a 5 to 0 vote.
9.D. ATLANTIC PLAZA H /ABANDONMENT AND RELOCATION OF
N.E.71$ AVENUE AND ABANDONMENT OF ALLEYWAYS: Consider approval
of the attached agreements and easements regarding the abandonments and relocation of
N.E. 7th Avenue between N.E. 1" Street and East Atlantic Avenue and the east -west and
north -south alleyways lying east of N.E. 6th Avenue and north of East Atlantic Avenue.
(Quasi Judicial Hearing)
The City Attorney stated this will conducted as one Quasi - Judicial
Hearing with separate votes.
Chevelle D. Nubin, City Clerk, swore in those individuals who wished to
give testimony on this item.
Mayor Ellis asked the Commission to disclose their ex parte
communications.
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02/17/09
Mr. McDuffie stated he had a number of meetings with the applicant, the
applicant's agent Attorney Michael Weiner, several meetings with the Beach Property
Owners Association and their Board. Mr. Bernard stated he had a number of meetings
with the applicant, the applicant's agent Attorney Michael Weiner, several meetings with
the Beach Property Owners Association and their Board. Mayor Ellis stated she had a
number of meeting with the applicant, the applicant's agent Attorney Michael Weiner,
several meetings with the Beach Property Owners Association and their Board. Mayor
Ellis stated they also had a review of the plans on a couple of different occasions which
included the agents for the owner Architect Derek Vander Ploeg. Mr. Eliopoulos stated
he met five times with the applicant Derek Vander Ploeg and Attorney Michael Weiner
and the developer Carl DeSantis and there have been a dozen emails that have come from
the general public. Mr. Fetzer stated he has had the same contacts as Commissioner
Eliopoulos.
Ron Hoggard, A1CP, Principal Planner, entered the Planning and Zoning
project file #2008 -209 into the record.
Mr. Hoggard stated this is for the abandonment of rights-of-way and a
waiver request associated with Atlantic Plaza II project. The request is to abandon a
section of N.E. 7th Avenue between Atlantic Avenue and l st. When N.E. 7th Avenue is
relocated the city will have an easement over it for the use by the City and the public.
Mr. Hoggard stated there are utilities within these roadways and within the north/south
alleyway that will be relocated. He stated easements will be retained that will be
relocated and easements will be retained under the existing alleyway and 7th until the
replacement easements are in place and the utilities are relocated. The waiver request is
for the offset on 7th and the requirement for an offset is a minimum of 125 feet and the
offset here is 85 feet so this is a 40 foot reduction in the offset. Mr. Hoggard briefly
reviewed the required findings. He stated the Fire- Rescue Department has reviewed this
proposal and has no objections to this; the Community Redevelopment Agency (CRA)
and the Downtown Development Authority (DDA) reviewed this and approved it. At its
meeting of January 26, 2009, the Planning and Zoning Board reviewed this and
recommended approval of the waiver and the abandonments. Staff recommends that the
Commission approve the waiver to LDR Section 6.1.2(C)(2)(d) to accommodate the
reduction of the minimum offset on the north side from 125 feet to 85 feet and to approve
the abandonment of the roadways with the replacement location of 7th and abandonment
of the alleyway with conditions as outlined in the staff report.
Brian Shutt, Assistant City Attorney, stated the agreements address the
abandonment and relocation of 7th Avenue as well as the abandonment of the alleyways
and the City's reserved rights in those abandonments or the re- conveyance rights for 7th
Avenue. He stated the abandonments for the relocation of N.E. 7th Avenue the Master
Agreement encompasses the Financial Guarantee Agreement, the Declaration of
Reserved Rights Agreement, the Easement Agreement for vacated 7th Avenue which is
the current 7th Avenue, the Easement Agreement for the Relocated 7th Avenue, a Traffic
Enforcement Agreement which is the City's standard enforcement agreement to allow us
to enforce our traffic laws on the relocated 7th Avenue and an Escrow Agreement.
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02/17/09
Mr. Shutt stated the agreement is to provide the City with the same rights over relocated
7th Avenue as we would have if the Commission approves the resolution over vacated 7th
Avenue. There are certain timeframes that are listed in these agreements and they have to
provide the City an environmental audit within 180 days and obtain SPRAB approval by
December 1st. If they obtain SPRAB approval then they have approximately 1 %Z years
to obtain site plan certification and if that is obtained then they would have approximately
3 years to get to what staff has termed in the agreements to be like a no -turn back date.
Mr. Shutt stated if they miss any of those dates staff has the right to request a re-
conveyance of the 7th Avenue as it currently exists. Once the no turn -back date is hit
which is the completion of the underground tunnel where relocated 7th Avenue and
vacated 7th Avenue comes together from that point on we can only look to relocated 7th
Avenue. The developer or owner will have approximately two years to get to substantial
completion after that no -turn back date is reached. If the developer fails to make it to that
date, staff has a letter of credit to accommodate the work that would need to be done to
get the City to final completion on relocated 7th Avenue. Mr. Shutt stated the alleys
retain the same re- conveyance rights as there are with 7th Avenue except on the alleys the
City will receive back from the developer an easement for utilities and an easement for
ingress /egress. The easement that the City will be receiving over relocated 7th Avenue
will be an exclusive easement for the public's access and the top part of the road for that
use. Mr. Shutt stated for underneath the road the developer is giving the City a non-
exclusive utility easement in case we need to put certain utilities in the road. For the
alleyway, once the developer relocates or connects the utilities from the alleys (exterior
portion of the project) then the City will release the utility easement over the alleyways.
Mr. Shutt stated the access easement that we have over the alleyways will be released
when we have received documentation from the developer. Mr. Shutt stated in the
northwest corner of the project Carole Financial Plaza is the only entity that the City
would have an issue with them using a parking lot where they go across the public alley.
Once the developer provides the City with documents showing that they are providing the
easement for those people to continue to use that parking lot, at that point in time staff
can terminate the access easement. However, the City will still maintain the re-
conveyance of both of those alleys until all the conditions are satisfied and until that no
turn -back date is reached. The City will also be receiving from the developer prior to
commencement of construction concerning the alleyways a letter of credit that provides if
there is damage on those alleys the City can make a claim on the letter of credit in order
to repair the alleyways to put them in the condition that they were prior to abandonment.
Mr. Shutt stated there are also provisions concerning the sidewalks along 7th Avenue will
be public and the public will have all the rights that we currently have in our public
sidewalks. He stated on the agreement for the abandonment of the alleyways the master
agreement also incorporates the easement agreements for the abandoned alleyways, the
utilities and the access, the Financial Guarantee & Agreement, the Declaration of
Reserved Rights and a Traffic Enforcement Agreement as well.
_Michael Weiner, Atiorney with Weiner, Aronson & Mankoff, P.A., 10
S.E. 1St Avenue Delra Beach (representing-CM Holdin s Inc. thanked City staff
and Mr. DeSantis for the hours of work they put in and the system they came up to be
certain that the City would be assured that 7th Avenue would be built.
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02/17/09
Mr. Weiner stated they have met the burden of proof with respect to substantial
competent evidence and briefly reviewed the project. The project is immediately west of
Veteran's Park surrounded on Atlantic Avenue to the south N.E. 6th on the west N.E. 1st
on the north. He stated they are requesting the abandonment of an alley and the
abandonment and relocation of N.E. 7th. Mr. Weiner stated after speaking with members
of the Beach Property Owners Association, Barr Terrace, Seagate Towers, and FDOT
among others they have decided that the best approach to 7th Avenue is a slight curve and
what this does is give the same ingress and egress point on Atlantic Avenue. The only
difference is that the street jogs to the east allowing for a better public presentation of this
particular project. Mr. Weiner stated they have three advantages (1) they are shifting the
intensities toward Federal Highway, (2) buffering the Palm Trail community, and (3)
giving the improvement of Atlantic Court and a way around the intersection of Atlantic
and Federal Highway. He stated they received approval from the Planning and Zoning
Board, had favorable votes from the Community Redevelopment Agency (CRA), the
Downtown Development Authority (DDA) as well the Treasure Coast Regional Planning
Council reviewed the Plan. Mr. Weiner stated they also have support from the Florida
Department of Transportation as well as the positive staff report with respect to both the
abandonment and the roadway. Mr. Weiner urged the Commission to support the
abandonment and relocation of N.E. 7th Avenue and abandonment of alleyways.
Mayor Ellis stated if anyone from the public would like to speak in favor
or in opposition of this item, to please come forward at this time.
Brett Forman, 411 N.E. 8th Avenue, Delray Beach (works within the
redevelopment area of Carole Financial Plaza ), stated as a resident and as a business
owner and employer he expressed concern over the safety of his children and employees.
Mr. Forman stated the 7th Avenue corridor is like a racetrack and supports the
development as a whole and the new traffic pattern.
Andy Katz, 220 South Ocean Boulevard, Delray Beach, representing
the Beach Pro er Owners Association (BPOA), stated two weeks ago when this was
before the Planning and Zoning Board they had a first draft as a document that did not
protect the public. Mr. Katz stated is very happy to see that this new document is indeed
day and night different from before and it does protect the public rights to a public street
which is an easement now on a private piece of property. He thanked Brian Shutt,
Assistant City Attorney, for providing the BPOA with the documentation.
Bob Victorin 120 South Ocean Boulevard Delray Beach Beach
Property Owners Association expressed concern over traffic and public safety as a
result of the realignment of streets and traffic in relation to the development of the
Atlantic Plaza II. Mr. Victorin stated their main interest deals with traffic and the
surrounding corridors of the proposed Atlantic II development (Atlantic Avenue and N.E.
7th Avenue). He stated there are unusual traffic conditions in this location compared to
other areas in Delray Beach. Mr. Victorin stated the BPOA is requesting the following
three conditions for approval in future traffic plans: (1) the City Commission must make
certain that they clearly state that the City Engineer needs to press FDOT -not to reduce
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02/17/09
any Atlantic Avenue traffic lanes and maintain all current left -turn dedicated lanes going
east or west, (2) that the proposed new parallel parking spots just west of the bridge on
the north side of Atlantic Avenue not be added, (3) the BPOA feels that the proposed exit
from Veteran's Park poses a dangerous situation since the visibility to westbound traffic
approaching over the bridge is very limited and essentially blocked by the palm trees
between the exit and the bridge. Mr. Victorin suggested that a common forum be held
open to all interested parties.
Joe Snider, 1010 N.E. 8" Avenue, #35, Delray Beach (Architect), stated
this is being requested to provide an adequate building depth along N.E. 6'11 Avenue. Mr.
Snider stated every block to the north, south, and west of this is the same depth or less
and therefore other people are able to build within that depth requirement. He inquired as
to what the city is actually trying to achieve and what are we getting out of it. Mr. Snider
stated the biggest thing he has heard is people are getting traffic calming on 7th Avenue
and asked where the data is showing the complaints and other issues showing the traffic
problem there. He suggested that the City try some other less invasive traffic calming
measures and pointed out that there is not even a stop sign at the N.E. 1St intersection.
Mr. Snider inquired why the City has to give up 7th Avenue and why does it have to have
a curve in it to achieve that because he feels this can be achieved by keeping 7th Avenue
straight. Mr. Snider stated he is on the Green Task Force for Delray Beach and for Palm
Beach County and many cities are pursuing incentives to get green in their city. He
stated building incentives are a no cost way to get the private sector to build green and
urged the City to explore that. Mr. Snider stated he does not understand why staff does
not feel that giving this up would create problems with other applicants coming forward
and creating a dangerous precedent.
_Christina Betters 931 Palm Trail, Delray Beach_ stated she has lived
in town for many years and those blocks have been underutilized. She stated the project
is incredible and will be a great benefit to the city. Ms. Betters stated there is a traffic
problem on 7th Avenue and it needs to be slowed down; however, she supports the
change.
Jason Bre man 3320 Delray Bay Drive Apt. #316 Delray Beach
lanner & Designer and has lived here for over 4 ears stated he feels people are
very supportive of the project with the idea of growth for the City of new things coming
in; however, he reiterated comments of Mr. Snider that something is being requested of
the City and is something that we do not have to give and it is something that can be used
to leverage other positive benefits for the City. Mr. Bregman stated he would like to see
some real numbers for investment in Veteran's Park and some serious commitment to
making some green and strong moves towards better and stronger environmental
buildings. He stated the Planning and Zoning Board indicated that even though the
Board had to approve this because they felt it was accomplishing positive things, they
said the architecture was "graceless" and "boca'ish ". He stated the Commission can
consider what is being done as a whole because as the Commission approves each of
these changes and each and every of these waivers, he feels the City should consider
asking back from a large development like this.
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02/17/09
Michael Singer, lives in the Palm Trail neighborhood area, stated he
will be shocked if this is turned down. Mr. Singer stated he drives 7t b Avenue everyday
and noted this is not a speedway. He stated if it is considered a speedway and as it has
been said for the last several months and had police here agreeing with the people putting
this forward that we have to do traffic calming, why we have not seen stop signs on that
road. Mr. Singer stated the City is being asked to completely change the nature of a
street in the City for what public good and commented that he only sees this as the
highest and biggest use not for the public but for the developer. He stated the efficiency
of the intersections is increased and the jogging of 7th Avenue has nothing to do with the
cutting off of the egress /ingress. Mr. Singer stated that is accomplished by the
developments other possibilities.
Courtney Salomon, 1010 N.E. 8t" Avenue, Delray Beach, stated she is
very excited about the project and being a local business owner downtown she feels it
will contribute great things. However, she does feel that when a City makes an exception
for a private developer then it does set a precedent for fixture things.
Todd L'Herrou 830 Kokomo Key Lane Delray Beach resident and
business owner stated this project is very important for the downtown and noted that
during Jazz on the Avenue this section is always dead. He stated the City needs
something in this area to bring people there day and night year after year and feels this is
the project to do that. Mr. L'Herrou stated there are some compromises to be made with
but feels that this project is critical to the development of this town. He stated in return
the City is getting taxes on something that used to not be taxable and we are also getting
economical development that we need in times that are tough. Mr. L'Herrou urged the
Commission to move forward with this project.
Alice Finst, 707 Place Tavant, Delray Beach, expressed concern over
the abandonment of the alleyway and stated the City is giving the developer this big strip
of land if this proposal goes through and asked what the City is getting in return. Mrs.
Finst stated eliminating the alley is a huge mistake and she hopes when it comes to voting
for that particular alleyway the City will keep it.
Bill Wood 3777 N.W. Stn Street Delray Beach stated this project is
clearly one of the last large economic development projects that may occur in the
downtown. Mr. Wood stated the developer has comprised a huge parcel of land and as
recommending a project that will benefit us in terms of new jobs and new businesses and
all of the things that make a community sustainable and able to support itself from within.
He feels in terms of the layout and what the developer is proposing it is a great project.
Vincent Dole 245 N.E. Stn Avenue, _Delray Beach, supports the project
specifically in support of shifting 7h as proposed. Mr. Dole stated he believes 7th
Avenue is an alternative to Federal Highway and is used largely by people outside the
neighborhood. He stated there are no traffic lights and very few stop signs so it is a clear
alternative. Mr. Dole stated it is a great benefit to their neighborhood in which there are
many young children to have this diversion which he believes will cut down dramatically
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02/17/09
on the traffic that passes through a neighborhood and was never meant to be used as it is
currently being used. Mr. Dole stated he feels there are substantial benefits to the
neighborhood as well as other substantial benefits to the City for the overall project and
urged the Commission to support it.
Bob Ganeer, resident of Gull' Stream, feels this project should be
approved as requested. Mr. Granger stated the appearance of the project is where the
tough decisions are going to have to be made but feels that the overall concept is sound.
He urged the Commission to work with the developer over the next several months to
work with the developer to assure themselves that the legacy they leave and this project is
something that everyone will be proud of. Mr. Ganger urged the Commission to support
this project and approve this abandonment.
There was no cross - examination from staff or Mr. Weiner.
The following individual had a brief rebuttal:
Mr. Hoggard commented about the benefits of the traffic calming affects
of shifting this road to the east. He suggested also considering not just the traffic that is
there now going on 7th but to also consider the traffic that will be generated by the
activity of this project. Mr. Hoggard stated comments were made about the affects of
putting limitations on what can happen on Atlantic Avenue in terms of the turn lanes and
the parking on the north side and commented that those things are going to be issues
regardless if this road is shifted or not and are issues that will be dealt with in the Site
Plan Review and Appearance Board phase. With regard to Mrs. Finst's comments about
the north/south alleyway, Mr. Hoggard stated if the City were not redeveloping this
project and aggregating the property on both sides of the alley into one building then he
would agree with her. However, since the proposal is to aggregate the property the
alleyway has no benefit.
Michael Weiner, Attorney with Weiner, Aronson, and Mankoff. P.A..
10 S.E. Vt Avenue, Delray Beach, stated noo
thing the Commission does tonight has
anything to do with what it is that will be done in Atlantic Avenue inside that right-of-
way and it is before the FDOT. Mr. Weiner stated the City is the applicant and they wish
to work with the City as they work their way through the Florida Department of
Transportation. He stated Veteran's Park is an out only so he does not feel that there is
any traffic situation with respect to leaving Veteran's Park onto Atlantic Avenue. Mr.
Weiner stated with respect to green and sustainability, they are eliminating the gasoline
station. He stated this it is obvious that considering the fact that this location was so
close to downtown that this kind of traffic pattern impinges upon and makes it difficult to
have the superior quality development that this project demands.
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02/17/09
Mr. Weiner stated they have met all the requirements with respect to an abandonment, all
of the requirements with respect to a waiver, they have heard from other professionals
that are not on this development team including City staff, they have heard from more
than three Boards that consists of 20 different opinion makers, they had Charrettes in
which they were told to make sure Palm Trail is not a speedway and they have met
substantial competent evidence.
Mr. Eliopoulos asked what the City is doing with FDOT right now. In
response, Mr. Krejcarek stated FDOT tabled and asked the City to come back and talk
about is the discussion about the number of lanes on East Atlantic Avenue eastbound
between 5th Avenue (northbound Federal Highway) and 7th Avenue. Mr. Krejcarek stated
the existing 7th Avenue intersection currently has two lanes eastbound and two lanes
westbound. He stated when the applicant showed FDOT the same configuration going
westbound but only one lane going eastbound with the median on Atlantic Avenue which
could serve as refuge for pedestrians crossing Atlantic Avenue. Mr. Krejcarek stated
they also had a second plan that showed two lanes eastbound in that same block on
Atlantic Avenue. He stated FDOT told staff to go back to the City and have the City tell
us what they want to see on Atlantic Avenue.
Mr. Eliopoulos asked if a round -a -bout was ever looked at for the existing
intersection at the north side. Mr. Krejcarek stated staff had several meetings about that
intersection (N.E. 7th Avenue & N.E. 1St Street intersection) and asked the developer to
look at what other options are available. He stated they told us that they had looked at
options but staff has not personally seen any that they came forward with showing what
those options were but they had talked about other options as to how to handle that
intersection. Mr. Eliopoulos stated this road that the public is going to be using how the
speed limits are going to be controlled there and asked if this is controlled by the City or
the developer. The City Manager stated the City may have to enter into an agreement
like we do a lot of other private streets but the City would control it. Mr. Eliopoulos
stated suppose there is an issue with the construction of that road and asked how numbers
are established with regards to the City having to take over to finish the construction of
something like this. Mr. Krejcarek stated there were certain timefrarnes that were agreed
upon and the numbers that are in the Letter of Credit are numbers that is an amount that
allows us to go in and finish 7th Avenue and also take out the tunnel that would go
underneath 7th because if the City is going to take back that road after the "no turn back
date" we do not want the tunnel underneath there. Mr. Eliopoulos stated this developer
has tried to have open communication with everybody. Mr. Eliopoulos stated the
previous project that came before upset a lot of people and he was on the Planning and
Zoning Board at the time and voted against the project. He stated at that time many
spoke about a big traffic problem on 7th Avenue and cars were racing through the
neighborhood. Mr. Eliopoulos feels there is going to be increased traffic because it is a
large project. Mr. Eliopoulos commented about the street pattern and stated if you look
at Federal Highway there have not been successful buildings there and stated one of
things that we have talked about before is having a Class "A" office space but we do not
have those types of footprints. He stated he agrees with Joe Snider and this is a great
opportunity and encourage green opportunities.
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02/17/09
Mr. Eliopoulos stated although the architecture is not an issue tonight but he does feels
that we need to keep up with the architecture in making sure that it fits within Delray
Beach. He expressed concern over Atlantic and the bridge and the exit coming out of
Veteran's Park because there are issues with congestion there. Mr. Eliopoulos stated this
has been a process for over two years where it has constantly been developing and this is
how you try to get a good project approved in Delray that is going to last a long time and
be successful.
Mr. McDuffie thanked everyone who spoke this evening. He stated Mr.
Eliopoulos is correct and noted that the Commission has been meeting with the builder,
Mr. Weiner, Mr. Vander Ploeg, with the residents in the neighborhood and there were
multiple Charrettes held at the site. Mr. McDuffie stated every time that he has had the
opportunity to speak to the architects and the builders they have listened. Mr. McDuffie
stated the builder and owner heard what the residents were saying and wanted to be able
to get together with City staff and guarantee in perpetuity that the rights of the citizens to
the access of 7th Avenue would remain the same that they are today for now and
evermore. Mr. McDuffie commended the architect, builder and owner of this project in
that they have listened every time that he has had the opportunity to speak to them.
Mr. Bernard inquired about the history of the City receiving these
alleyways. Mr. Shutt explained that in most cases the City gets alleyways through public
dedication so there is not a cost to the City because it is a building requirement or a
development requirement. Mr. Bernard stated there was a comment about the City not
getting anything by giving the alleyways and asked if this is the case with this. Mr. Shutt
stated he has not gone back to see if the City has paid for the alleyways but believes this
was through a public dedication. Mr. Shutt stated the City is not going to be incurrin
and further maintenance cost on relocated 7t` Avenue which we would if we still had 7t
Avenue. Mr. Shutt stated it is up to the developer or the owner now to maintain 7a,
Avenue. The City Manager stated these alleys are still part of the original plat of Delray
Beach (Town of Linton at the time). Mr. Bernard stated this project will provide the
economic development that this area needs and we need to make sure that the project is
sustainable and take a look at making sure that the project is as green as possible.
Mr. Fetzer stated the easiest thing we could do is sit back and not change
the right -of -ways. However, he stated the Commission is trying to work as a City with
this developer to get something in our downtown area. Mr. Fetzer stated the City needs
the economic development and needs a project that is compatible with the downtown. He
stated he too was disappointed with the first design of Atlantic Plaza but the City has now
been given something that is totally different (underground parking, lower density,
economic engine for the downtown). Mr. Fetzer stated the current building is an old
suburban style shopping center that has never down well and urged everyone to work
with the developer to get something in there that we can all be proud of and something
that will be great for the future of our downtown. He stated he supports this project and
continuing to work through the ,SPRAB process to get the type of quality there that the
City needs.
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[INi 71
9.D.1. AGREEMENTS FOR THE ABANDONMENT AND RELOCATION
OF N.E. 7TH AVENUE: Consider approval of the Agreement for the Abandonment and
Relocation of N.E. 7 Avenue related to the Atlantic Plaza II project. The abandonment
agreement provides for an easement for public access to the City over the existing 7th
Avenue as well as an easement for public access over a relocated 7th Avenue as well as
other agreements setting forth the rights of the City and Owner.
Mr. McDuffie moved to approve the Agreement for the Abandonment and
Relocation of N.E. 7"' Avenue which also includes the Financial Guarantee and
Agreement, the Declaration of Reserved Rights and Agreement not to Encumber N.E. 7th
Avenue, Easement Agreement for Vacated 7th Avenue, Easement Agreement for
Relocated 7th Avenue, Traffic Enforcement Agreement, and Escrow Agreement,
seconded by Mr. Eliopoulos. Upon roll call the Commission voted as follows: Mayor
Ellis — Yes; Mr. Eliopoulos — Yes; Mr. Fetzer — Yes; Mr. McDuffie — Yes; Mr. Bernard ---
Yes. Said motion passed with a 5 to 0 vote.
9.D.2. AGREEMENTS FOR THE ABANDONMENT OF THE
ALLEYWAYS: Consider approval of the Agreement for the Abandonment of the
north/south and east /west alleyways related to the Atlantic Plaza II project. The
abandonment agreement provides for an easement for public access and utilities to the
City over the existing alleyways for a period of time until the existing utilities located in
the alleyways are relocated and access through the alleyways are no longer necessary.
Mr. Bernard moved to approve the Agreement for the Abandonment of the
Alleyways which also includes Easement Agreement for the Abandoned Alleyways,
Financial Guarantee and Agreement, Declaration of Reserved Rights and Agreement not
to Encumber the Alleys, and Traffic Enforcement Agreement, seconded by Mr.
Eliopoulos. Upon roll call the Commission voted as follows: Mr. Eliopoulos Yes; Mr.
Fetzer — Yes; Mr. McDuffie — Yes; Mr. Bernard ---- Yes; Mayor Ellis Yes. Said motion
passed with a 5 to 0 vote.
9.D.3. RESOLUTION NO. 08 -09 /ATLANTIC PLAZA HIRIGHT OF
ABANDONMENT: Consider approval of a Right of Abandonment of a 0.55 acre
rectangular shaped portion of N.E. 7th Avenue and two alleyways totaling 0.27 acres
within Block 116 (Town of Linton Plat) in conjunction with the Atlantic Plaza II
development, located between Atlantic Avenue and N.E. 1St Street, east of N.E. 6th
Avenue (Northbound Federal Highway) and consideration of a waiver to the minimum
street jog offset distance as specified in LDR Section 6.1.2(C)(2)(d).
The caption of Resolution No. 08 -09 is as follows:
A RESOLUTION OF THE CITY COMMISSION OF THE
CITY OF DELRAY BEACH FLORIDA VACATING
AND ABANDONING A 40' WIDE SECTION OF N.E.
7' AVENUE, LYING BETWEEN EAST ATLANTIC
AVENUE AND N.E. 1ST STREET; THE 16' EAST -WEST
ALLEYWAY LYING WITHIN BLOCK 116, LOCATED
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02/17/09
EAST OF N.E. 6' AVENUE, APPROXIMATELY 100'
NORTH OF EAST ATLANTIC AVENUE; AND THE 16'
NORTH -SOUTH ALLEYWAY LYING WITHIN BLOCK
116, LOCATED BETWEEN EAST ATLANTIC
AVENUE AND N.E. 1sT STREET AS MORE
PARTICULARLY DESCRIBED HEREIN, SUBJECT TO
RECEIPT OF SUBSTITUTE EASEMENTS,
RECONVEYANCE AND OTHER TERMS AS SET
FORTH IN RECORDED DOCUMENTS AND
EASEMENTS.
(The official copy of Resolution No. 08 -09 is on file in the City Clerk's
office.)
Mr. Bernard moved to approve Resolution No. 08 -09 making findings that
it meets the abandonment criteria in the LDRs and subject to conditions #1 -5 in the staff
memo, seconded by Mr. Fetzer. Upon roll call the Commission voted as follows: Mr.
Fetzer — Yes; Mr. McDuffie — Yes; Mr. Bernard — Yes; Mayor Ellis -- Yes; Mr.
Eliopoulos — Yes. Said motion passed with a 5 to 0 vote.
At this point, the City Attorney stated there is a Board Order for the
waiver for Atlantic Plaza. The City Attorney briefly reviewed the Board Order with the
Commission who made findings according to their consensus (attached hereto is a copy
and made an official part of the minutes).
Mr. McDuffie moved to adopt the Board Order (approving the waiver
request) as presented, seconded by Mr. Bernard. Upon roll call the Commission voted as
follows: Mr. McDuffie — Yes; Mr. Bernard — Yes; Mayor Ellis Yes; Mr. Eliopoulos --
Yes; Mr. Fetzer — Yes. Said motion passed with a 5 to 0 vote.
9.F. STATE LEGISLATIVE PRIORITIES FOR 2009: Consider the
proposed 2009 State Legislative Priorities for the City.
Doug Smith, Assistant City Manager, presented a list of proposed
legislative priorities at the State level for consideration on what they have drafted for
suggested City positions and also some items that staff would track through the
legislative process. Mr. Smith stated there will be numerous other bills that the
Commission will receive updates on from the League of Cities. He stated staff has
categorized under legislative issues with some of the important issues that they have
emphasized in the past such as unfunded mandates, growth issues, tax revenue issues,
education, transportation, environmental issues, voting and public information issues, and
also appropriation items. Mr. Smith stated staff's plan is to prepare a brochure format
like last year with summary on many of the key items that the Commission can hand out
to different Legislators.
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02/17/09
Mayor Ellis stated she and Rich Reade will be seeing Senator Klein
tomorrow.
Mr. Fetzer stated he feels the brochure summary that staff did last year
was great.
Mr. Smith stated staff will put the brochure together again this year for the
Commission.
9.G. HOFFERT v. CITY OF DELRAY BEACH /OFFER OF PAYMENT
OF COURT COSTS: Consider approval of a payment by the City in the amount of
$15,000.00 in Hoffert v. City of Delray Beach for court costs and final resolution of the
case upon the conditions of dismissal of the appeal and the receipt of appropriate
releases.
The City Attorney stated this case stems from incidents that happened
quite a while ago with a psychic in town. Staff stated the City went to trial on this case
and the jury came back with $23,400.00 as the City's cost. The City Attorney stated the
City issued a check in that amount but because they are the prevailing party at trial the
City is responsible for costs. Since that time they have also filed an appeal. The City
Attorney stated this approval would be to pay $15,000.00 for their costs on the conditions
that they would enter into a satisfaction of final judgment, file a release of any and all
claims including costs and a filing notice of voluntary dismissal in the 0 District Court
of Appeals case. Staff recommends approval.
Mr. Fetzer moved to approve the payment by the City in the amount of
$15,000.00 in Hoffert v. City of Delray Beach subject to staff s recommendations,
seconded by Mr. McDuffie. Upon roll call the Commission voted as follows: Mr.
Bernard — Yes; Mayor Ellis — Yes; Mr. Eliopoulos — Yes; Mr. Fetzer — Yes; Mr.
McDuffie — Yes. Said motion passed with a 5 to 0 vote.
9.11. PROPOSAL FOR SETTLEMENT IN HEATHER LEITCH v. CITY
OF DELRAY BEACH: Consider a Proposal for Settlement in the amount of
$35,000.00 in Heather Leitch v. City of Delray Beach. Staff recommends denial of the
proposal for settlement.
The City Attorney stated this stems from a stray gun shot that she was
impacted by at the First Night 2006 celebration. There has been an offer of settlement in
the amount of $35,000.00 and noted her medical expenses are $43,183.00. Staff
recommends denial of this settlement offer because staff believes that they have
sovereign immunity.
Mr. Eliopoulos moved to approve the Proposal for Settlement in Heather
Leitch v. City of Delray Beach, seconded by Mr. Bernard. Upon roll call the
Commission voted as follows: Mayor Ellis — No; Mr. Eliopoulos — No; Mr. Fetzer — No;
Mr. McDuffie — No; Mr. Bernard — No. Said motion was DENIED with a 5 to 0 vote.
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02/17/09
9.I. NOTICE OF CLAIM FILED/DORIS NYDELL v. CITY OF
DELRAY BEACH: Consider a Notice of Claim in the amount of $50,000.00 filed by
Doris Nydell v. City of Delray Beach and Florida East Coast Railway (FEC); and
authorize the City to work with Florida East Coast Railway (FEC) to install sidewalks on
N.E. 2nd Avenue and Atlantic Avenue. Staff recommends denial of claim.
The City Attorney stated this is in the claim stage but staff has had quite a
few contacts from FEC (Florida East Coast Railway) and they want the City to also
contribute in this case. This is a trip and fall on the railroad crossing area on N.E. 2nd
Avenue and Atlantic Avenue. The City Attorney stated this trip and fall occurred on the
FEC right-of-way not City right-of-way so the City has resisted this claim. However, the
City Attorney stated now they have come back with an offer and they are very insistent.
She stated because the City is not in litigation they have an open door session about this
not closed. Staff recommends denial because his incident did not happen on the City
right-of-way.
The City Attorney stated that the City Commission may want to authorize
staff to pursue looking into some kind of partnership with the FEC regarding discussions
on sidewalks and signalization. She stated this does not have to be part of the motion,
however, suggested that the Commission think about this as an item to think about.
Prior to the vote, Mr. Eliopoulos stated with regard to the City Attorney's
comments he feels the City should encourage more communication and if there are things
that the City needs to do to down the road with regard to signage or proper crossings at
the railroad crossing then he suggests that the City pursue it.
Mr. McDuffic moved to approve the Notice of Claim filed by Doris
Nydell v. City of Delray Beach, seconded by Mr. Eliopoulos. Upon roll call the
Commission voted as follows: Mr. Eliopoulos — No; Mr. Fetzer — No; Mr. McDuffie —
No; Mr. Bernard — No; Mayor Ellis -- No. Said motion was DENIED with a 5 to 0 vote.
9.J. RE UEST FOR SIDEWALK DEFERRAL /200 MARINE WAY:
Consider approval of a request to defer the installation of a sidewalk in front of 200
Marine Way.
Commissioner Eliopoulos declared a conflict of interest and stepped down
from the dais.
Randal Krejcarek, City Engineer, stated this is a sidewalk deferral for the
property located at 200 Marine Way and noted that this is the property at the very south
end of Marine Way which is the intersection S.E. 2nd Street and Marine Way. The
sidewalk deferral is for the south side of S.E. 2" Street.
Mr. Fetzer moved to approve the request for the sidewalk deferral for 200
Marine Way, seconded by Mr. Bernard. Upon roll call the Commission voted as follows:
Mr. Fetzer — Yes; Mr. McDuffie — Yes; Mr. Bernard — Yes; Mayor Ellis — Yes.
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02/17/09
Said motion passed with a 4 to 0 vote.
At this point, Commissioner Eliopoulos returned to the dais.
9.K. APPOINTMENT TO THE CODE ENFORCEMENT BOARD:
Appoint one (1) alternate member to the Code Enforcement Board to serve an unexpired
term ending January 14, 2010. Based upon the rotation system, the appointment will be
made by Commissioner Bernard (Seat #4).
Mr. Bernard stated he would like to postpone his appointment to the
Regular Meeting of March 3, 2009.
9.L. APPOINTMENT TO THE AFFORDABLE HOUSING ADVISORY
COMMITTEE: Appoint one (1) regular member to the Affordable Housing Advisory
Committee to serve a partial term ending July 31, 2009. Based upon the rotation system,
the appointment will be made by Commissioner Eliopoulos (Seat #1).
Mr. Eliopoulos stated he would like to appoint Perry Rohan as a regular
member to the Affordable Housing Advisory Committee to serve a partial term ending
July 31, 2009, seconded by Mr. McDuffie. Upon roll call the Commission voted as
follows: Mr. McDuffie — Yes; Mr. Bernard — Yes; Mayor Ellis — Yes; Mr. Eliopoulos —
Yes; Mr. Fetzer — Yes. Said motion passed with a 5 to 0 vote.
9.M. APPOINTMENT TO THE DELRAY BEACH HOUSING
AUTHORITY: Appoint one (1) regular member to the Delray Beach Housing Authority
to serve an unexpired term ending July 14, 2010. Based upon the rotation system, the
appointment recommendation will be made by Commissioner Bernard (Seat #4).
Mr. Bernard stated he would like to postpone his appointment to the
Regular Meeting of March 3, 2009.
At this point, the time being 10:24 p.m., the Commission moved to Item
13, Comments and Inquiries on Non - Agenda Items.
13. COMMENTS AND INQUIRIES ON NON - AGENDA ITEMS.
13.A. City Manager
With regard to the replacement of the windows at Old School Square, the
City Manager stated there was a pre -bid meeting on January 9, 2009 and pre -bid meeting
questions were asked about the wind load calculations. After investigating these
questions, it was determined that due to the age of the building and the lack of as -built
drawings, it would be helpful to all bidders if a window per building was removed to
provide more information on existing conditions. The City Manager stated the City also
told bidders that we would provide them with necessary connection details.
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02/17/09
As these details were being developed, it was realized that the original FEMA application
called for the windows to be rated for 155 mph (this was the wind speed FEMA told the
City to use) when in fact the maximum rating in Palm Beach County is 140 mph. After
contacting the State to see if we could use 140 mph versus 150 mph we received
preliminary notification that this probably can be accomplished but the agreement may
need to be modified to reflect the new wind speed. The City is waiting on the final
response from the State before finalizing the connection details.
Secondly, the City Manager stated Mr. Fetzer had asked about the
voluntary contributions for cultural facilities and the direction from the Commission was
to solicit voluntary contributions on a quarterly basis utilizing a separate flyer that would
be mailed out with the water bills. This was selected because our HTE software would
not permit a separate check box on the water bill itself. The City Manager stated the
Commission also agreed that any funds collected would go to the Creative City
Collaborative to distribute under a grant program and the City will ask for assistance in
developing the flyer. The City met with Creative City Collaborative in October and they
were skeptical about that method but they did assign a sub - committee to work with Mr.
Barcinski on the design. The City Manager stated Mr. Barcinski met with a sub-
committee to talk about the flyer design as well as criteria for a grant program. Various
ideas were discussed but we did not come up with a design. Staff was to meet again in
early December but due to vacations, holidays, illnesses, and other work priorities, they
were unable to meet. Mr. Barcinski's intention now is to work with the City's PIO staff
and the Finance Department to develop a draft and take it back to the sub - committee.
Staff s intent is to try and get something approved by the end of February that can go out
with the March billings. Mr. Fetzer asked if this is something that staff can transmit to
Joe Gillie. The City Manager stated that staff can do this.
The City Manager commented on Glenn Goss's letter and also agrees that
the Forbes magazine article is misleading when it talks about full medical benefits;
however, by State law the City is required to allow all of its retired employees to remain
as part of our group. The City Manager stated the Governmental Accounting Standards
Board has a new requirement where the City is going to have to calculate an unfunded
liability for other post employment benefits because they say keeping retirees' in our
group increases our total costs and we have to estimate that and account for it and show it
as a liability on the City's financial statements. The City Manager stated the City's
retirees' pay for their coverage but they pay at the group rate. He stated there are a lot of
local governments around that provide it at the cost of the local government. However,
the City of Delray Beach requires the retirees' to pay for their own coverage. The City
Manager stated he is technically correct when he says that our Police and Fire Retirees'
benefits are not indexed to inflation; however, beginning the 25"' year after their hire date
they get a retirement benefit enhancement (1 % -4% each year after retirement) and
therefore an increase in their retirement benefit. The amount is determined by the Police
and Fire Pension Board. From 1994 until the middle of 2002 the Police and Fire Pension
Board gave 4% every year; the CPI (Consumer Price Index) in those years was 2.7 %,
2.5 %, 3.3 %, 1.7 %0, 1.6 %, 2.7 %0, 3.4 %, and 1.6 %.
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02/17/09
The City Manager stated part of 2002 was at 2% and part of the year was at 2 %, 2V2%
because there is a dispute with the State about the use of some of that money. He stated
some of that money is being escrowed now until that dispute is resolved and that has been
done since 2002 and the Pension Board started giving 2%2% and the CPI in 2002 was
2.4 %, 2003 was 1.9 %, 2004 was 3.3 %, 2005 3.4 %. The City Manager stated he does not
have the last three years. He stated over the last 11 years the average was more than the
CPI pursuant to the 1993 agreement.
The City Manager stated he would like to get back and talk with Mike
McCleary and noted that he has the greatest respect for what firefighters do when it
comes to the service they provide and they are totally selfless and often assume various
risks. The City Manager stated he did not intend to say anything discouraging about that
but when you sit down at the bargaining table the union exists to get the best benefits and
pay they can for their members. The City Manager stated there is nothing wrong with
that and that is the way the system works. The City Manager stated at the bargaining
table they are out for their interests and not necessarily the public that they serve. He
stated he wanted to clear this up because he feels the Fire- Rescue Department does a
fantastic job and noted that their service is superior to anyone else in the County.
U.B. CityAttorney
The City Attorney commended Brian Shutt, Assistant City Attorney for
working so diligently on the documents for Atlantic Plaza as well as the crew from the
other side.
U.C. City Commission
13.C.1. Mr. Fetzer
Mr. Fetzer stated he would like to give the Commission a brief update on
his discussion with Larry Brown who is performing the investigation for the City. He
stated he has 17,000 pages of documentation to go through and the next step is to identify
who he will be interviewing at the City. Mr. Fetzer stated Mr. Brown hopes to finish the
document review this week and by next week begin to move into the interview process
over the next two weeks. Mr. Fetzer stated Mr. Brown has been in touch with Mary
McCarty's attorney and she has agreed to interview with Mr. Brown with her attorney
present.
13.C.2. Mr. Eliopoulos
Mr. Eliopoulos stated he believes there was also an amount that the City
received for replacement of the windows for Old School Square and most likely that
number is not going to work because that is an old number. He stated going into the
building and restructuring things is probably not being taken into consideration. Mr.
Eliopoulos stated staff needs to be aware of the cost.
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02/17/09
Secondly, he stated with regard to Mrs. Finst's comments with regard to
Federal Highway and the CVS Pharmacy, he does not believe that when the City changed
the zoning to CBD (Central Business District) that it was what we were looking for. Mr.
Eliopoulos suggested that we look at North Federal Highway through the Economic
Development Committee.
13.C.3. Mr. Bernard
Mr. Bernard stated he is glad he has won the Election automatically.
Secondly, with regards to the school crossing guards at Atlantic High
School, Mr. Bernard stated he has seen a lot of accidents there. He said some of these
kids are driving for the first time and with the construction that is going there it would be
detrimental to lose the crossing guards at this location.
The City Manager stated the Police Department went through all of the
cities crossing guards and determined which ones were least needed and there is no
requirement to have crossing guards for high school students but it is a requirement for
elementary school. The City Manager stated the school crossing guards cost $200,000.00
and the budget was cut to $50,000.00 and then staff took it back up to $150,000.00;
however, $50,000.00 needs to be cut from the budget.
13.C.4. Mr. McDuffie
Mr. McDuffie asked if all the things that he needs to convey to the MPO
(Metropolitan Planning Organization) are in the excel spreadsheet he received today.
The City Manager stated the spreadsheet contains everything.
Secondly, he asked about the email he received about the grant
($200,000.00) for Miller Park. The City Manager stated this is not final.
Mr. McDuffie inquired about the status of the lease for Hilltopper
Stadium.
He stated he attended the Economic Development VIP Breakfast this past
week at the Boca Raton Hotel and Club. Mr. McDuffie stated the Mayors or Vice
Mayors of Boca, Delray and Boynton Beach got up to speak to 12 people that the
development people (Kelly Smallridge) brought in from all over the country. Mr.
McDuffie stated they do site searches for business relocations and these are the type of
people the City of Delray Beach would like to meet with and attract to this area. Mr.
McDuffie thanked Mr. Eliopoulos for his email and stated he presented the information
regarding the MROC, transient oriented development, shuttle systems, the rezoning of
four corners, the new height on Congress Avenue, the City's expediting permitting
process, etc. to these people. Mr. McDuffie thanked the Commission for everything they
provided to him because it really helped. Mr. McDuffie stated Kelly Smallridge
mentioned the things that they were relocating and the things that they were placing.
02/17/09
One was alternate energy but he said those are being placed in states were electricity is
expensive and it is cheap in Florida. The second is Aerospace but normally you need a
lot of acreage and space to do that. However, there is one that was mentioned that may
be a fit for Florida and they are returning to the United States and that is call centers and
help desk centers. Mr. McDuffie stated it was very interesting and he learned some
things that the City might be able to leverage.
13.C.5. Mayor Ellis
Mayor Ellis thanked Mr. McDuffie for sharing the information and stated
it sounds very interesting. She feels the City needs to pick up information wherever we
can.
There being no further business, Mayor Ellis declared the meeting
adjourned at 10:48 p.m.
ATTEST:
City Clerk
MAYOR
The undersigned is the City Clerk of the City of Delray Beach, Florida, and the
information provided herein is the Minutes of the Regular City Commission Meeting held
on February 17, 2009, which Minutes were formally approved and adopted by the City
Commission on March 17 2009.
�3)
City Clerk
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02/17/09
NOTE TO READER:
If the Minutes you have received are not completed as indicated above, this means they
are not the official Minutes of the City Commission. They will become the official
Minutes only after review and approval which may involve some amendments, additions
or deletions as set forth above.
Ar
02/17/09
FORM 8B" MEMORANDUM OF VOTING CONFLICT FOR
COUNTY, MUNICIPAL, AND OTHER LOCAL PUBLIC OFFICERS
LAST NAME -- FIRST NAME-MIDDLE NAME NAME OF BOARD, COUNCIL, COMMISSION, AUTHORITY. OR COMMITTEE
Eliopoulos, Gary P. Delray Beach City Commission
MAILING ADDRESS THE 13OAR0, COUNCIL, COMMISSION, AUTHORITY OR COMMITTEE ON
205 George Bush Boulevard WHICH I $ERVE IS A UNIT OF:
CITY COUNTY
Delray Beach, Fl. 33445 Palm
DATE ON WHICH VOTE OCCURRED
2/17/09
L3 OTHER LOCAL. AGENCY
NAME OF POLITICAL SUBDIVISION:
City of Delray Beach
MY POSITION IS: y��
XXELECTIVE. U APPOINTIVE
WHO MUST FILE FORM 813
This form is for use by any person serving at the county, city, or other local level of government on an appointed or elected hoard, council,
commission, authority, or committee. It applies equally to members of advisory and non -adv €sort' bodies who are presented with'a voting
conflict of interest under Section 112.3143, Florida Statutes.
Your responsibilities under the law when faced with voting on a measure In which you have a conflict of interest will vary greatly depending
on whether you hold an elective or appointive position. For this reason, please pay close attention to the instructions on this form before
completing the reverse side and filing the form.
INSTRUCTIONS FOR COMPLIANCE WITH SECTION 112.3143, FLORIDA STATUTES
A person holding elective or appointive county, municipal, or other local public office MUST ABSTAIN from voting on a measure which
inures to his or her special private gain or loss. Each elected or appointed local officer also is prohibited from knowingly voting on a mea-
sure which Inures to the special gain or loss of a principal (other than a government agency) by whom he or she is retained (including the
parent organization or subsidiary of a corporate principal by which he or she is retained); to the special private gain or loss of a relative; or
to the special private gain or loss of a business associate. Commissioners of community redevelopment agencies under Sec. 163.366 or
163.357, F.S., and officers of Independent special tax districts elected an a one -acre, one -vote basis are not prohibited from voting in that
capacity. .
For purposes of this law,'a "relative" includes only the officer's father, mother, son, daughter, husband, wife, brother, sister, father -in -law,
mother -in -law, son -in -law, and daughter-in-law. A "business associate" means any person or entity engaged in or carrying on a business
enterprise With the officer as a partner, joint venturer, coowner of property, or corporate shareholder (where the shares of the cofporation
are not listed on any national or regional stock exchange).
* * *
ELECTED OFFICERS;
In addition to abstaining from voting In the situations described above, you must disclose the conflict:
PRIOR TO THE VOTE BElNG-TAKEN by publicly stating to the assembly. the nature of your Interest in the measure on which you
are abstaining from voting; acrd
WITHIN 15 DAYS AFTER THE VOTE OCCURS by completing and filing this form with the person responsible for recording the min-
utes of the meeting, who should incorporate the form in the minutes.
APPOINTED OFFICERS:
Although you must abstain from voting in the situations described above, you otherwise may participate in these matters. However, you
must disclose the nature of the conflict before making any attempt to infuencd the decision, whether orally or in writing and whether made
by you or at your direction.
lF YOU INTENT] TO MAKE ANY ATTEMPT TO INFLUENCE THE DECISION PRIOR TO THE MEE"T"ING AT WHICH THE VOTE WILL 8E
TAKEN:
• You must complete and file this form (before making any ettempt to influence the decision) with the person responsible for recording the
minutes of the meeting, who will incorporate the form in the minutes. (Continued on other side)
CE FORM BB - EFF.1 /2000 ...r :
PAGE 7
APPOINTED OFFICERS (continued)
• A copy of the form must be provided Immediately to the'other members of the agency.
• The form must be read publicly at the next meeting after the form is filed.
IF YOU MAKE NO ATTEMPT TO INFLUENCE THE DECISION EXCEPT BY DISCUSSION AT THE MEETING:
You must disclose orally the nature of your conflict In the measure before participating.
• You must complete the form and.file it within. 15 days.after time vote occurs with the parson respbnsible'for recording the minutes of the
meeting, who must incorporate the form In the minutes. A copy of the form must be provided immediately to the other members of the
agency, and the form must be read publicly at the next meeting after the form is filed. .
DISCLOSURE OF LOCAL OFFICER'S INTEREST
I, Gary P_ E,lippoul.os hereby disclose that on February 17 . 2p 09
(a) A measure came or will come before my agency which (check one)
inured to my special private gain or loss;
Xx inured to the special gain or loss of my business associate, EligpOulos Arc'hitectu're Iris .
Inured to the special gain or loss of my relative,
inured to the special gain or loss of by
whom I am retained: or
inured to the special gain or loss of which
is the parent organization or subsidiary of a principal which has retained Me.
(b) The measure before my agency and the nature of my conflicting Interest In the measure is as follows:
2/1-7/2009.
Date Filed
NOTICE: UNDER PROVISIONS OF FLORIDA STATUTES §112.317, A FAILURE TO (MAKE ANY REQUIRED DISCLOSURE
CONSTITUTES GROUNDS FOR AND MAY BE PUNISHED BY ONE OR MORE OF THE FOLLOWING; IMPEACHMENT,
REMOVAL OR SUSPENSION FROM OFFICE OR EMPLOYMENT, DEMOTION, REDUCTION IN SALARY, REPRIMAND, OR A
CIVIL PENALTY NOT TO EXCEED $10,000.
CE FORM 8B - EFF. 11200(3
PAGE 2
IN THE CITY COMMISSION
CHAMBERS OF THE CITY OF
DELRAY BEACH, FLORIDA
WAIVER REQUEST FOR TASTE RESTAURANT
ORDER OF THE CITY COMMISSION
OF THE CITY OF DELRAY BEACH, FLORIDA
1. These waiver requests came before the City Commission on February 17,
2009, where the applicant is requesting waivers to the 5' landscape island requirement
and the 20' site visibility triangle.
2. The Applicant and City staff presented documentary evidence and
testimony to the City Commission pertaining to the waiver requests for Taste
Restaurant. All of the evidence is a part of the record in this case. Required findings
are made in accordance with Subsections I and II.
I. WAIVER TO LANDSCAPE ISLAND:
LDR Section 4.6.16(H)(3)(1), requires a five foot (5') landscape island at the end
of a parking row. The applicant has requested a waiver to this requirement to
provide for four feet (4') for the southern portion of the handicap space and zero
feet (0) for the northern portion.
Pursuant to LDR Section 2.4.7(B)(5), prior to granting a waiver, the approving
body shall make a finding that the granting of the waiver:
(a) Shall not adversely affect the neighboring area;
(b) Shall not significantly diminish the provision of public facilities;
(c) Shall not create an unsafe situation; and,
(d) Does not result in the grant of a special privilege in that the same waiver
would be granted under similar circumstances on other property for
another applicant or owner.
Does the landscape island waiver request meet all the requirements of
2.4.7(8)(5)?
Yes 5 No 0
11. WAIVER TO SITE VISIBILITY TRIANGLE:
LDR Section 4.6.14(A)(1), requires a twenty foot (20') site visibility triangle be
provided. The applicant has requested a reduction from twenty feet (20') to two
feet (2') at the intersection of the handicap space and the east alley driveway.
1
CC MEETING FROM FEBRUARY 17. 2009 - ITEM 9.A.
_ r
Pursuant to t.DR Section 2.4.7(8)(5), prior to granting a waiver, the approving
body shall make a finding that the granting of the waiver:
(a) Shall not adversely affect the neighboring area;
(b) Shall not significantly diminish the provision of public facilities;
(c) Shall not create an unsafe situation; and,
(d) Does not result in the grant of a special privilege in that the same waiver
would be granted under similar circumstances on other property for
another applicant or owner.
Does the site visibility waiver request meet all the requirements of
2.4.7(8)(5)?
Yes 5 No 0
3. The City Commission has applied the Comprehensive Plan and LDR
requirements in existence at the time the original development application was
submitted and finds that its determinations set forth in this Order are consistent with the
Comprehensive Plan.
4. The City Commission finds there is ample and competent substantial
evidence to support its findings in the record submitted and adopts the facts contained
in the record including but not limited to the staff reports, testimony of experts and other
competent witnesses supporting these findings.
5. Based on the entire record before it, the City Commission approves ✓
denies the waiver request.
6. Based on the entire record before it, the City Commission hereby adopts
this Order this 17th day of February, 2009, by a vote of 5 in favor and 0
opposed.
ATTEST:.
Chevelle Nubin, City Clerk
Rita Ellis, Mayor
K
CC MEETING FROM FEBRUARY 17. 2009 - ITEM 9.A.
iJ
IN THE CITY COMMISSION
CHAMBERS OF THE CITY OF
DELRAY BEACH, FLORIDA
SIGN WAIVER REQUEST FOR THE SAVOR THE AVENUE EVENT
ORDER OF THE CITY COMMISSION
OF THE CITY OF DELRAY BEACH, FLORIDA
1. This waiver request to allow banners to be placed 3 Y weeks prior to the
special event has come before the City Commission on February 17, 2009.
2. The Applicant and City staff presented documentary evidence and
testimony to the City Commission pertaining to the waiver request for Savor the Avenue
Event. All of the evidence is a part of the record in this case. Required findings are
made in accordance with Subsection I.
1. WAIVER:
LDR Section 4.6.7(F)(3)(f) limits the time that a banner may be placed prior to an event
to 14 days. The Applicant has requested a waiver from this requirement to install the
banners 3'Y2 weeks prior to the event.
Pursuant to LDR Section 2.4.7(B)(5), prior to granting a waiver, the approving body
shall make a finding that the granting of the waiver:
(a) Shall not adversely affect the neighboring area;
(b) Shall not significantly diminish the provision of public facilities;
(c) Shall not create an unsafe situation; and,
(d) Does not result in the grant of a special privilege in that the same waiver would
be granted under similar circumstances on other property for another applicant or
owner.
Does the waiver request meet all the requirements of 2.4.7(B)(5) subject to the
conditions, if any, listed below?
N/A
Yes 5 No 0
3. The City Commission has applied the Comprehensive Plan and LDR
requirements in existence at the time the request was submitted and finds that its
determinations set forth in this Order are consistent with the Comprehensive Plan.
1
CC MEETING OF FEBRUARY 17. 2,009 - ITEM 9.C.
r
4. The City Commission finds there is ample and competent substantial
evidence to support its findings in the record submitted and adopts the facts contained
in the record including but not limited to the staff reports, testimony of experts and other
competent witnesses supporting these findings.
5. Based on the entire record before it, the City Commission approves
denies the waiver request to LDR Section 4.6.7(F)(3)(f), subject to the conditions,
if any, imposed in this order.
G. Based on the entire record before it, the City Commission hereby adopts
this Order this 17th day of February, 2009, by a vote of 5 in favor and 0
opposed.
ti
ATTES Rita Ellis, Mayor
1
Cheve a Nubin, -City Clerk
2
CC MEETING oF FEBRUARY 17. 2,009 - ITEM 9.C.
IN THE CITY COMMISSION
CHAMBERS OF THE CITY OF
DELRAY BEACH, FLORIDA
WAIVER REQUEST FOR ATLANTIC PLAZA
ORDER OF THE CITY COMMISSION
OF THE CITY OF DELRAY BEACH, FLORIDA
1. This waiver request to reduce the minimum centerline street jog offset
distance at the intersection of N.E. 1st Street and N.E. 7t" Avenue from the required 125'
minimum to approximately 85' has come before the City Commission on February 17,
2009.
2. The Applicant and City staff presented documentary evidence and
testimony to the City Commission pertaining to the waiver request for Atlantic Plaza. All
of the evidence is a part of the record in this case. Required findings are made in
accordance with Subsection I.
1. WAIVER:
Pursuant to LDR Section 6.1.2(C)(2)(d) the minimum centerline street -jog offset
distance is 125'. The applicant is requesting a waiver to this LDR Section.
Pursuant to LDR Section 2.4.7(B)(5), prior to granting a waiver, the approving body
shall make a finding that the granting of the waiver;
(a) Shall not adversely affect the neighboring area;
(b) Shall not significantly diminish the provision of public facilities;
(c) Shall not create an unsafe situation; and,
(d) Does not result in the grant of a special privilege in that the same waiver would
be granted under similar circumstances on other property for another applicant or
owner.
Would a waiver to Section 5.1.2(C)(2)(d), waiving the minimum centerline street jog
offset distance from 125' to 85', comply with the requirements of 2.4.7(B)(5)?
Yes 5 No 0
3. The City Commission has applied the Comprehensive Plan and LDR
requirements in existence at the time the original application was submitted and finds
1
CC MEETING FROM FEBRUARY 17. 2,009 - ITEM 9.D.
1
w
that its determinations set forth in this Order are consistent with the Comprehensive
Plan and Land Development Regulations,
4. The City Commission finds there is ample and competent substantial
evidence to support its findings in the record submitted and adopts the facts contained
in the record including but not limited to the staff reports, testimony of experts and other
competent witnesses supporting these findings.
5. Based on the entire record before it, the City Commission approves ✓
denies the waiver request as set forth above.
6. Based on the entire record before it, the City Commission hereby adopts
this Order this 17th day of February, 2009, by a vote of 5 in favor and 0
opposed.
ATTEST:
Chevelle Nubin, City Clerk
MR a Ellis, Mayor
W,
CC MEETING FROM FEBRUARY 17.2009 - ITEM 9.D.
r
r
IN THE CITY COMMISSION
CHAMBERS OF THE CITY OF
DELRAY BEACH, FLORIDA
BID PROTEST BY WESTWAY TOWING INC.
ORDER OF THE CITY COMMISSION
OF THE CITY OF DELRAY BEACH, FLORIDA
1. This bid protest has come before the City Commission on February 17,
2009 where the applicant is requesting that the Commission uphold its bid protest to
RFP 2009 -06.
2. The Applicant and City staff presented documentary evidence and
testimony to the City Commission pertaining to the bid protest by WestWay Towing Inc..
All of the evidence is a part of the record in this case. Required findings are made in
accordance with Subsection I.
1. BID AWARD
The City will select the bid that, in the City's judgment, will best serve the City's interest.
Would approving the bid protest best serve the City's interest.
Yes 2 No 3
3. The City Commission has applied the Comprehensive Plan and City
Ordinance requirements in existence at the time of bid award and finds that its
determinations set forth in this Order are consistent with the Comprehensive Plan,
4. The City Commission finds there is ample and competent substantial
evidence to support its findings in the record submitted and adopts the facts contained
in the record including but not limited to the staff reports, testimony of experts and other
competent witnesses supporting these findings.
5. Based on the entire record before it, the City Commission approves
denies ✓ the bid protest.
1
CC MEETING OF FEBRUARY 17. 2,009 - ITEM 9.E.
6. Based on the entire record before it, the City Commission denies the bid
protest and adopts this Order this 171h day of February, 2009, by a vote of 3 in
favor and 2 opposed. E
ATTEST: R1 1a E lis, Mayor
Chevelle Nubin, City Clerk
E
CC MEETING of FEBRUARY 17.2009 - ITEM 9.E.