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12-06-11 Regular Meeting
City of Delray Beach Regular Commission Meeting RULES FOR PUBLIC PARTICIPATION Tuesday, December 6, 2011 Regular Meeting 6:00 p.m. Public Hearings 7:00 p.m. Delray Beach City Hall 1. PUBLIC COMMENT: The public is encouraged to offer comments with the order of presentation being as follows: City Staff, public comments, Commission discussion and official action. City Commission meetings are business meetings and the right to limit discussion rests with the Commission. Generally, remarks by an individual will be limited to three minutes or less. The Mayor or presiding officer has discretion to adjust the amount of time allocated. A. Public Hearings: Any citizen is entitled to speak on items under this section. B. Comments and Inquiries on Non-Agenda Items from the Public: Any citizen is entitled to be heard concerning any matter within the scope of jurisdiction of the Commission under this section. The Commission may withhold comment or direct the City Manager to take action on requests or comments. C. Regular Agenda and First Reading Items: Public input on agendaed items, other than those that are specifically set for a formal public hearing, shall be allowed when agreed by consensus of the City Commission. 2. SIGN IN SHEET: Prior to the start of the Commission Meeting, individuals wishing to address public hearing or non-agendaed items should sign in on the sheet located on the right side of the dais. If you are not able to do so prior to the start of the meeting, you may still address the Commission on an appropriate item. The primary purpose of the sign-in sheet is to assist staff with record keeping. Therefore, when you come up to the podium to speak, please complete the sign-in sheet if you have not already done so. 3. ADDRESSING THE COMMISSION: At the appropriate time, please step up to the podium and state your name and address for the record. All comments must be addressed to the Commission as a body and not to individuals. Any person making impertinent or slanderous remarks or who becomes boisterous while addressing the Commission shall be barred by the presiding officer from speaking further, unless permission to continue or again address the Commission is granted by a majority vote of the Commission members present. APPELLATE PROCEDURES Please be advised that if a person decides to appeal any decision made by the City Commission with respect to any matter considered at this meeting, such person will need to ensure that a verbatim record includes the testimony and evidence upon which the appeal is based. The City neither provides nor prepares such record. 100 N.W. 1st Avenue Delray Beach, FL 33444 Phone: (561) 243-7000 Fax: (561) 243-3774 The City will furnish auxiliary aids and services to afford an individual with a disability an opportunity to participate in and enjoy the benefits of a service, program, or activity conducted by the City. Contact Doug Smith at 243-7010, 24 hours prior to the event in order for the City to accommondate your request. Adaptive listening devices are available for meetings in the Commission Chambers. REGULAR MEETING AGENDA 1. ROLL CALL 2. INVOCATION 3. PLEDGE OF ALLEGIANCE TO THE FLAG A. NONE 4. AGENDA APPROVAL 5. APPROVAL OF MINUTES: A. November 15, 2011 – Regular Meeting 6. PROCLAMATIONS: A. NONE 7. PRESENTATIONS: A. Florida City Government Month at Carver Morning Program B. Lake Worth Drainage District (LWDD) recognizes and commends the City of Delray Beach on their 100th Anniversary– Ronald Crone C. Chief’s Achievement Awards – Chief Anthony Strianese D. Downtown Development Authority (DDA) Marketing Summary Plan – Marjorie Ferrer 8. CONSENT AGENDA: City Manager Recommends Approval A. FINAL SUBDIVISION PLAT APPROVAL/OCEAN APPLE ESTATES PLAT TWO: Approve the final plat for a 1.52 acre three (3) lot, single-family subdivision known as Ocean Apple Estates Plat Two. B. ACCEPTANCE OF A WATER UTILITY EASEMENT DEED/LINTON DELRAY, LLC.: Approve and accept a water utility easement deed with Linton Delray, LLC. for the adjacent development to be known as Franklin at Delray Beach which is located at 1030 S. Federal Highway. C. REQUEST FOR SIDEWALK DEFERRAL/1011 BUCIDA ROAD: Approve a request to defer the installation of a sidewalk along Bucida Road for property located at 1011 Bucida Road. D. CONTRACT ADDITION (CHANGE ORDER NO. 1)/INTERCOUNTY ENGINEERING, INC.: Approve a Contract Addition (Change Order No. 1) to Intercounty Engineering, Inc. in the amount of $44,062.41, for water main replacement on Island Drive and swale improvements for Reclaimed Water System Area 11B. Funding is available from 442-5178-536-63.50 (Water & Sewer Renewal & Replacement Fund: Improvements Other/Water Main) and 448-5461-538-46.43 (Storm Water Utility Fund: Repair & Maintenance Service/Drainage Swales). E. CONTRACT ADDITION (CHANGE ORDER NO. 3)/FOSTER MARINE CONTRACTORS, INC.: Approve a Contract Addition (Change Order No. 3) to Foster Marine Contractors, Inc. in the amount of $55,674.20, for the construction of additional parking for two (2) additional properties, quantity overrun for additional water service relocations and a contract time extension of twenty-three (23) days for the S.W. 12th Avenue/Auburn/S.W. 14th Avenue project. Funding is available from 334-3162-541-68.04 (General Construction Fund: Other Improvement/S.W. 12th Avenue/Auburn/S.W. 14th Avenue) and 442-5178-536-49.33 (Water/Sewer Renewal & Replacement Fund/Other). F. PROFESSIONAL SERVICES VENDOR LIST/NEIGHBORHOOD STABILIZATION PROGRAM (NSP): Approve the list of vendors for Professional Services required to carry out activities under the Neighborhood Stabilization Program (NSP) contingent on the list being approved by the Florida Department of Community Affairs. G. AGREEMENT/PALM BEACH COUNTY/DISASTER RECOVERY INITIATIVE (DRI2) PROGRAM: Approve an agreement between the City and Palm Beach County for the Disaster Recovery Initiative (DRI2) Housing Rehabilitation Program to extend the deadline from September 16, 2011 through September 16, 2012. H. WORKFORCE HOUSING COVENANT AGREEMENT/BAMFOUR, LLC./DKB REALTY INVESTMENT, INC./MATHIAS DEVELOPMENT, INC: Approve a Workforce Housing Covenant Agreement, as proposed between the City and Bamfour, LLC., DKB Realty Investment, Inc., and Mathias Development, Inc. for Midtown Delray. I. REVISED WORKFORCE HOUSING COVENANT/FLORANDA MHP, LLC./NEW CENTURY EXECUTIVE QUARTERS, LLC.: Approve a revised Workforce Housing Covenant between the City of Delray Beach and the Floranda MHP, LLC and New Century Executive Quarters, pursuant to the requirements under Section 4.7 of the Land Development Regulations. J. CHANGE FUNDING SOURCE FROM DISASTER RECOVERY INITIATIVE (DRI) TO STATE HOUSING INITIATIVE PARTNERSHIP (SHIP)/HOUSING REHABILITATION CONTRACT AWARD: Approval to reallocate the funding source from Disaster Recovery Initiative (DRI) to State Housing Initiative Partnership (SHIP) for the Housing Rehabilitation contract award for 303 S.W. 2nd Avenue. Funding from 118-1924-554-49.19 (Neighborhood Services: Other Current Charges/Housing Rehabilitation) and 118-1960-554-49.19 (Neighborhood Services: Other Current Charges/Housing Rehabilitation). K. AMENDMENT NO. 1 TO THE INTERLOCAL AGREEMENT FOR FUNDING OF TRANSIT INFRASTRUCTURE/PALM BEACH COUNTY: Approve Amendment No. 1 to the Interlocal Agreement for Funding of Transit Infrastructure between Palm Beach County and the City of Delray Beach to increase the amount of the grant to install an additional bus shelter at the northeast corner of the S.W. 10th Street and Congress Avenue intersection. L. CONSENT TO ASSIGNMENT/FAMILY CENTRAL, INC./EARLY LEARNING COALITION OF PALM BEACH COUNTY/SCHOOL READINESS CHILD CARE SERVICE AGREEMENT: Approve a Consent to Assignment between Family Central, Inc., the Early Learning Coalition of Palm Beach County, and the City of Delray Beach for Pompey Park and the Delray Beach Community Center/School Readiness Child Care Service Agreements. M. AMENDMENT NO. 2/SCHOOL READINESS CHILD CARE SERVICE AGREEMENT: Approve Amendment No. 2 to the School Readiness Child Care Service Agreement between Family Central, Inc., the Early Learning Coalition and the City of Delray Beach to amend the term of the agreement and the termination provisions for the afterschool programs located at Pompey Park and Delray Beach Community Center. N. CONSENT TO ASSIGNMENT/FAMILY CENTRAL, INC./EARLY LEARNING COALITION OF PALM BEACH COUNTY/AFTERSCHOOL PROGRAM SERVICE AGREEMENT: Approve a Consent to Assignment Agreement between Family Central, Inc., the Early Learning Coalition of Palm Beach County and the City of Delray Beach for the Pompey Park and the Delray Beach Community Center/Afterschool Program Service Agreements to Accept Scholarships for School Age Children. O. AMENDMENT NO. 3/AFTERSCHOOL PROGRAM SERVICE AGREEMENT: Approve Amendment No. 3 to the Afterschool Program Service Agreement to Accept Scholarships for School Age Children between Family Central, Inc., the Early Learning Coalition and the City of Delray Beach to amend the term of the agreement and the termination provisions for the afterschool programs located at Pompey Park and Delray Beach Community Center. P. TERMINATION OF DEDICATION OF PARKING AGREEMENT/PINEAPPLE GROVE PROPERTIES, LTD.: Approve Termination of the Dedication of Parking Agreement with Pineapple Grove Properties, Ltd., for the twelve (12) spaces adjacent to N.E. 3rd Avenue and behind the Astor development, located on privately owned property. Q. SETTLEMENT AGREEMENT/BANK OF AMERICA CORPORATION (BAC): Approval to participate in a Settlement Agreement between Bank of America Corporation (BAC) and 28 State Attorneys General to resolve allegations that BAC engaged in violations of state and federal antitrust laws. R. RESOLUTION NO. 54-11/INTERNET SALES TAX LOOPHOLE: Approve Resolution No. 54-11 supporting action by Florida’s Governor and State Legislature to close the internet sales tax loophole. S. RESOLUTION NO. 57-11/POLICE OFFICER AND FIREFIGHTER PENSION PLAN: Approve Resolution No. 57-11 supporting Police Officer and Firefighter Pension Plan and disability presumption reforms to make the plans sustainable, sound and secure for current and future police officers and firefighters. T. RESOLUTION NO. 58-11: Approve Resolution No. 58-11 authorizing the execution and delivery of a Master Lease Agreement Equipment Schedule No. 03 in the amount of $825,000, and related instruments, and determining other matters in connection with this equipment lease. Schedule No. 03 is an amendment to an existing Master Lease agreement dated May 20, 2004 with SunTrust Leasing Corporation and will provide financing for the reimbursement of Public Safety hardware and software expenses totaling $825,000 at a rate of 1.855% for an 84 month term. Terms of the amendment provide for payments to be made in arrears and a 1% penalty for prepayment. U. SPECIAL EVENT REQUEST/ON THE AVE: Approve a special event request to endorse On the Ave to be held on January 19, 2011 from 6:30 p.m. to 10:30 p.m., to grant a temporary use permit per LDR Section 2.4.6(F) for the closure of Atlantic Avenue from Swinton to the west side of N.E./S.E. 6th Avenue, Railroad Avenue from Atlantic north to 150 feet north of the east/west alley, and to the alleys north and south of Atlantic on N.E./S.E. 1st Avenue, N.E./S.E. 2nd Avenue, S.E. 3rd Avenue, and N.E./S.E. 4th Avenue; to authorize staff support for security and traffic control, EMS assistance and fire inspection, barricade set up and removal, and trash removal and clean up. V. REVIEW OF APPEALABLE LAND DEVELOPMENT BOARD ACTIONS: Accept the actions and decisions made by the Land Development Boards for the period November 14, 2011 through December 2, 2011. W. AWARD OF BIDS AND CONTRACTS: 1. Contract award to Intercounty Engineering, Inc. in the amount of $16,610.00 for replacing large valves used at City’s Water Treatment Plant, Filter #3. Funding is available from 442-5178-536-64.90 (Water & Sewer Renewal & Replacement Fund: Machinery; Equipment/Other Machinery/Equipment). 2. Bid award to Lake Worth Monumentin the amount of $2,100.00 for the purchase of a pink granite base for the Boy Scout sculpture. Funding is available from 115-1702-579-46.90 (Special Project Funds: Repair & Maintenance Service). 3. Purchase award to Systems Maintenance Services (SMS) in the amount of $21,960.45 for twenty (20) processors and forty (40) memory module kits for server upgrades, including installation. Funding is available from 334-6111-519-64.11 (General Construction Fund: General Government Service/Machinery/Equipment/Computer Equipment). 9. REGULAR AGENDA: A. WAIVER REQUEST/27-43 SOUTH SWINTON AVENUE: Consider a request to waive Land Development Regulations (LDR) Section 4.5.1(E)(3)(a)1.c., "Appurtenances, Fences and Walls", to permit the location of a six foot (6’) high wall within the side street setback for 27-43 South Swinton Avenue. (Quasi-Judicial Hearing) B. WAIVER REQUESTS/104 S.E. 1ST AVENUE: Consider waivers to Land Development Regulations (LDR) Section 4.6.9(F)(3)(d),“Special Provisions”, which requires a drive aisle width of 24’, by permitting a drive aisle width of 22’; and to Section 4.6.9(F)(3)(i), “Valet Parking”, which requires a perimeter landscape buffer of 10’, by permitting a landscape buffer that varies from 1’6” to 6’4” for the attendant off-site parcel located at 104 S.E. 1st Avenue. (Quasi-Judicial Hearing) C. WAIVER REQUESTS/BOSTON’S RESTAURANT -PHASE I: Consider approval of requests to waive Land Development Regulations (LDR) Section 4.6.16(H)(3), “New Multiple Family, Commercial and Industrial Development ”, subparagraph (i) to allow 62 sq. ft. where 75 sq. ft. of plantable area is required near the southwest corner of the site, and subparagraph (j) to allow no landscape islands where terminal landscape islands are required in four locations, in association with Phase I of Boston’s Restaurant. (Quasi-Judicial Hearing) D. WAIVER REQUESTS/BOSTON’S RESTAURANT -PHASE II: Consider approval of three (3) waiver requests to Land Development Regulations (LDR) Section 4.4.13 (F)(1)(a), “Height”, Minimum Building Height to allow 14’ where 25’ is required, Land Development Regulations (LDR) Section 4.6.9(D)(3)(b), “Minimum Width”, Minimum Drive Aisle Width to allow 22’ where 24’ is required and Land Development Regulations (LDR) Section 4.6.9(D)(3)(c)(1), “Stacking Distance”, Minimum Stacking Distance to allow 27’ where 50’ is required, in association with Phase II of Boston’s Restaurant which includes demolition and acquisition of adjacent hotel properties to provide additional on-site parking and new outdoor seating and dining areas. (Quasi-Judicial Hearing) E. REVOCATION OF VALET PARKING LICENSE AGREEMENT WITH CUIGINI GRILLE: Consider approval to revoke the valet parking license agreement with Cuigini Grille for the valet parking queue located on the south side of the 200 block of East Atlantic Avenue. 1. PARKING LICENSE AGREEMENT FOR VIC & ANGELO’S: Consider approval of a parking license agreement with Vic & Angelo's to use the valet parking queue on the south side of the 200 block of East Atlantic Avenue, replacing Cugini Grille. F. ASSIGNMENT OF VALET PARKING QUEUE/BREATHE RESTAURANT AND LOUNGE: Consider a request from Breathe Restaurant and Lounge, located at 401 West Atlantic Avenue, to reestablish a parking valet queue. G. APPOINTMENT TO THE GREEN IMPLEMENTATION ADVANCEMENT BOARD: Appoint one (1) regular member to the Green Implementation Advancement Board to serve an unexpired term ending July 31, 2012. Based upon the rotation system, the appointment will be made by Mayor McDuffie (Seat# 5). H. APPOINTMENT TO THE EDUCATION BOARD: Appoint one (1) regular member to the Education Board to serve an unexpired term ending July 31, 2013. Based upon the rotation system, the appointment will be made by Mayor McDuffie (Seat #5). 10. PUBLIC HEARINGS: A. CONSOLIDATED ANNUAL PERFORMANCE AND APPRAISAL REPORT (CAPER): Consider approval of the 2010-2011 Consolidated Annual Performance and Evaluation Report required by the United States Department of Housing & Urban Development (HUD) for utilization of federal grant funds. B. ORDINANCE NO. 43-11: Consider amending Ordinance No. 70-89 which revises Section 1, “Designation”, and Section 2, “Requirements of Designation” of Ordinance 70-89, and an amendment to Land Development Regulations (LDR) Section 4.5.1(K) (2), “Designation of Historic Sites”, to provide for the revised legal description of the Fontaine Fox Designation. 11. COMMENTS AND INQUIRIES ON NON-AGENDA ITEMS FROM THE PUBLICIMMEDIATELY FOLLOWING PUBLIC HEARINGS: A. City Manager's response to prior public comments and inquiries. B. From the Public. 12. FIRST READINGS: A. ORDINANCE NO. 44-11: Consider an ordinance amending the Charter of the City of Delray Beach by amending Article III, “Legislative”, Section 3.02, “City Commission: Composition, Eligibility, Election, and Terms” and Section 3.09, “Term Limits”; amending Article V, “Elections”, Section 5.02, “Types of Elections”; to provide for a change in the length of a term from a two (2) year term to a three (3) year term; providing for a referendum election to be held on March 13, 2012. If passed, a public hearing will be held on January 3, 2012. B. ORDINANCE NO. 45-11: Consider a city-initiated amendment to Land Development Regulations (LDR) Section 4.4.9, “General Commercial (GC) District”, Subsection (G), “Supplemental District Regulations”, Sub-subsection (3), “Four Corners Overlay District”, to correct outdated references. If passed, a public hearing will be held on January 3, 2012. C. ORDINANCE NO. 46-11: Consider an Ordinance amending Chapter 113, "Alcoholic Beverages", Section 113.02, “Prohibition of Consumption or Possession of Open Containers of Alcoholic Beverages in Public Places”. If passed, a public hearing will be held on January 3, 2012. 13. COMMENTS AND INQUIRIES ON NON-AGENDA ITEMS: A. City Manager B. City Attorney C. City Commission 11/15/11 NOVEMBER 15, 2011 A Regular Meeting of the City Commission of the City of Delray Beach, Florida, was called to order by Mayor Nelson S. McDuffie in the Commission Chambers at City Hall at 6:00 p.m., Tuesday, November 15, 2011. 1. Roll call showed: Present -Commissioner Tom Carney Commissioner Jay Alperin Commissioner Adam Frankel Commissioner Angeleta E. Gray Mayor Nelson S. McDuffie Absent -None Also present were -David T. Harden, City Manager Robert A. Barcinski, Assistant City Manager Brian Shutt, City Attorney Chevelle D. Nubin, City Clerk 2. The opening prayer was delivered by Rabbi Greg Kanter with Temple Sinai. 3. The Pledge of Allegiance to the flag of the United States of America was given. 4. AGENDA APPROVAL. Mayor McDuffie stated Item 9.B., Consideration of an Appeal/Historic Preservation Board’s Decision/Class III Site Plan Modification and Item 9.B.1., Consideration of an Appeal of the Historic Preservation Board’s Decision on a Waiver Request, are being postponed at the request of the applicant. Dr. Alperin moved to approve the Agenda as amended, seconded by Mrs. Gray. Upon roll call the Commission voted as follows: Dr. Alperin – Yes; Mr. Frankel – Yes; Mrs. Gray – Yes; Mayor McDuffie – Yes; Mr. Carney – Yes. Said motion passed with a 5 to 0 vote 5. APPROVAL OF MINUTES: Mr. Frankel moved to approve the Minutes of the Regular Meeting of November 1, 2011, seconded by Mrs. Gray. Upon roll call the Commission voted as follows: Mr. Frankel – Yes; Mrs. Gray – Yes; Mayor McDuffie – Yes; Mr. Carney – Yes; Dr. Alperin – Yes. Said motion passed with a 5 to 0 vote. 2 11/15/11 6. PROCLAMATIONS: 6.A. America Recycles Day – November 15, 2011 Mayor McDuffie read and presented a proclamation hereby proclaiming November 15, 2011 as America Recycles Day in the City of Delray Beach. Jennifer Buce, Litter Prevention Coordinator and Rich Reade, Sustainability Officer came forward to accept the proclamation and gave a few brief comments. 6.B. St. Paul African Methodist Episcopal Church 114th Anniversary Mayor McDuffie read and presented a proclamation hereby recognizing St. Paul African Methodist Episcopal Church on its 114 Anniversary in the City of Delray Beach. Pastor LaTanya Floyd came forward to accept the proclamation and gave a few brief comments. 7. PRESENTATIONS: 7.A. Florida Association of City Clerks (FACC) Second Vice President – Lori McWilliams presentation to City Clerk, Chevelle D. Nubin Lori McWilliams, Village Clerk Tequesta, congratulated Chevelle D. Nubin, with her Master Municipal Clerk (MMC) designation and presented her with an MMC pen and her certification plaque. Ms. McWilliams stated Ms. Nubin embarked on this journey approximately seven (7) years ago after receiving her Certified Municipal Clerk (CMC) designation and this has provided her with the tools necessary to improve the efficiency and effectiveness of our local municipal governments. Ms. McWilliams stated during her voyage Ms. Nubin has served as the Palm Beach County Municipal Clerks Association President and now serves as the Southeast District Director for the Florida Association of City Clerks. Ms. McWilliams stated it is her hope that she will consider a future run for the Presidency of the State Association. Chevelle D. Nubin, MMC, came forward to accept her MMC pen and certification plaque and thanked the City Manager for allowing her to continue to pursue her education. Ms. Nubin also thanked Doug Smith, Assistant City Manager and stated he wrote a sponsorship letter when she became Southeast District Director to be able to have that time out of the office to go and serve other cities. Ms. Nubin stated Clerks are trained on a wide range of topics as far as governmental accounting, ethics, communication, how to build a relationship with local reporters, and how to interact with elected officials. Ms. Nubin thanked the Department Heads and the great bosses that she has had with Lula Butler being her first boss and mentor. Ms. Nubin stated she is thankful for the people she serves on a day-to-day basis and is grateful for the City Clerk staff for giving her tremendous support. 3 11/15/11 8. CONSENT AGENDA: City Manager Recommends Approval. 8.A. RESOLUTION NO. 53-11: ABANDONMENT OF UTILITY EASEMENT; MIDTOWN DELRAY: Approve Resolution No. 53-11 to abandon a 12' wide utility easement located within the plat for Midtown Delray property (formerly Blood’s Grove Orchard) for a water main formerly serving the Hammock Reserve development to the south. The caption of Resolution No. 53-11 is as follows: A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, VACATING AND ABANDONING A UTILITY EASEMENT DEDICATED BY AN EASEMENT DEED RECORDED IN O.R.B. 9764, PAGE 1355, AS MORE FULLY DESCRIBED IN EXHIBIT “A”. (The official copy of Resolution No. 53-11 is on file in the City Clerk’s office.) 8.B. CHANGE ORDER NO. 2/FOSTER MARINE CONTRACTORS, INC.: Approve Change Order No. 2 to Foster Marine Contractors, Inc. in the amount of $13,647.50 for an adjustment in contract quantities due to roadway slope adjustment to facilitate drainage; and overbuild to an existing asphalt driveway to match the new sidewalk grade; and a contract time extension of seven (7) days; for the S.W. 12th Avenue/Auburn/S.W. 14th Avenue Project. Funding is available from 448-5461-538-68.04 (Storm Water Utility Fund: Other Improvement/S.W. 12th Avenue/Auburn/S.W. 14th Avenue). 8.C. CONTRACT CLOSEOUT (CHANGE ORDER NO. 3/FINAL)/BRANG CONSTRUCTION, INC.: Approve a Contract Closeout (C.O. No. 3/Final) with Brang Construction, Inc. in the amount of an $18,556.10 decrease and final payment in the amount of $62,142.20; which includes $18,123.08 for additional asphalt overlay required to complete the Martin Luther King Jr. Drive Beautification Project. Funding is available from 380-4150-572-63.28 (2004 G.O. Bond: Improvements Other/Pompey Park/Community Center), 334-4141-572-68.57 (General Construction Fund: Other Improvement/Cultural Loop/MLK Drive Phase 1) and 441-5181-536-65.96 (Water and Sewer Fund: Other Improvements/Reclaimed Water Transmission). 8.D. TRI-PARTY AGREEMENT: FLORIDA DEPARTMENT OF TRANSPORTATION (FDOT)/CSX TRANSPORTATION, INC. (CSXT)/CITY OF DELRAY BEACH: Approve a Tri-Party Agreement between the Florida Department of Transportation, CSX Transportation, Inc. (CSXT) and the City of Delray Beach in the amount of $203,633.00 to reimburse CSXT for reconstruction of the S.W. 10th Street railroad crossing. Funding is available from 334-3162-541-46.90 (General Construction Fund: Repair & Maintenance Services/Other Repair/Maintenance Costs). 4 11/15/11 8.E. IMPLEMENTATION OF A VALET PARKING SERVICE IN THE OLD SCHOOL SQUARE GARAGE: Approve implementation of a valet parking service in the Old School Square Parking Garage. 8.F. HOUSING REHABILITATION GRANT/CONTRACT AWARD: Re-award one (1) Housing Rehabilitation contract in the amount of $28,839.31 for 316 N.W. 6th Avenue through the Community Development Block Grant (CDBG) and Residential Construction Mitigation Program (RCMP) to Built Solid Construction the second lowest responsive bidder, due to the low bidder's withdrawal request. Funding is available from 118-1963-554-49.19 (Neighborhood Services: Other Current Charges/Housing Rehabilitation) and 118-1936-554-49.19 (Neighborhood Services: Other Current Charges/Housing Rehabilitation). 8.G. LANDSCAPE MAINTENANCE AGREEMENT/921 SOUTH OCEAN BOULEVARD, LLC: Approve Landscape Maintenance Agreement with 921 South Ocean Boulevard, LLC to provide for the installation of new shrubs and groundcovers within the unpaved right-of-way in front of the property located at 921 South Ocean Boulevard. 8.H. LICENSE AGREEMENT/ZGS DELRAY, LLC.: Approve a License Agreement with ZGS Delray, LLC. for use of public parking spaces adjacent to N.E. 3rd Avenue for a limited period of time. 8.I. REQUEST TO INSTALL BUS SHELTER ART/PUBLIC ART ADVISORY BOARD: Approve a request to install art work in three (3) bus shelters located at: 1) Carver Middle School at the intersection of Barwick and West Atlantic; 2) N.E. 1st Street in the 200 Block and 3) Linton Boulevard just east of Military Trail on the south side. Funding is available from 115-1702-579-31.90 (Special Projects Fund (Public Art): Professional Services/Other Professional Services). 8.J. VOTE PROCESSING EQUIPMENT USE AND ELECTIONS SERVICES AGREEMENT: Approve a Vote Processing Equipment Use and Election Services Agreement between the Palm Beach County Supervisor of Elections and the City for conducting municipal elections. 8.K. RESOLUTION NO. 52-11: Approve Resolution No. 52-11 assessing costs for abatement action required to remove nuisances on twelve (12) properties throughout the City of Delray Beach. The caption of Resolution No. 52-11 is as follows: A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, PURSUANT TO CHAPTER 100 OF THE CODE OF ORDINANCES OF THE CITY OF DELRAY BEACH, ASSESSING COSTS FOR ABATING NUISANCES UPON CERTAIN LAND(S) LOCATED WITHIN THE CITY OF DELRAY BEACH AND PROVIDING THAT A NOTICE OF LIEN 5 11/15/11 SHALL ACCOMPANY THE NOTICE OF ASSESSMENT; SETTING OUT ACTUAL COSTS INCURRED BY THE CITY TO ACCOMPLISH SUCH ABATEMENT AND LEVYING THE COST OF SUCH ABATEMENT OF NUISANCES; PROVIDING FOR AN EFFECTIVE DATE AND FOR A DUE DATE AND INTEREST ON ASSESSMENTS; PROVIDING FOR THE RECORDING OF THIS RESOLUTION, AND DECLARING SAID LEVY TO BE A LIEN UPON THE SUBJECT PROPERTY FOR UNPAID ASSESSMENTS. (The official copy of Resolution No. 52-11 is on file in the City Clerk’s office.) 8.L. SPECIAL EVENT REQUEST/14TH ANNUAL FIRST NIGHT 2012: Approve a special event request to endorse the 14th Annual First Night 2012 event on December 31, 2011 from 4:00 p.m. to midnight, grant a temporary use permit per LDR Section 2.4.6(F) for the use of City rights-of-way and facilities as requested, and authorize generator use and staff support for traffic control and security, site cleanup and trash removal, barricade set up and removal, banner hanging, signage construction and installation, and EMS services. 8.M. SPECIAL EVENT REQUEST/SAVOR THE AVENUE: Approve and endorse Savor the Avenue, sponsored by Boca Raton and Delray Beach Magazine and supported by the Downtown Development Authority, to be held on March 29, 2012 from 5:30 p.m. to 8:30 p.m.; grant a temporary use permit per LDR Section 2.4.6(F) for closure and use of Atlantic Avenue from Swinton to the west side of NE/SE 5th Avenue from 2 p.m. until 10:00 p.m.; and authorize staff support for traffic control and security, EMS assistance, Fire inspection, barricading, trash boxes, use of a City-owned portable generator and banner hanging with banners to be hung no sooner than 14 days prior to the event; contingent upon receipt of a certificate of event and alcohol liability insurance and an executed hold harmless agreement by March 15, 2012. 8.N. REVIEW OF APPEALABLE LAND DEVELOPMENT BOARD ACTIONS: Accept the actions and decisions made by the Land Development Boards for the period October 31, 2011 through November 11, 2011. 8.O. AWARD OF BIDS AND CONTRACTS: 1. Contract award to Murray Logan Construction, Inc. in the amount of $16,992.00 for proposed drainage work on Lewis Cove. Funding is available from 448-5461-538-46.90 (Storm Water Utility Fund: Repair and Maintenance Service/Other Repair/Maintenance Cost). 2. Purchase award to Intercounty Engineering, Inc. in the amount of $50,000.00 for the Sanitary Sewer Manhole Rehabilitation 6 11/15/11 Program. Funding is available from 442-5178-536-63.82 (Water & Sewer Renewal & Replacement Fund: Improvements Other/Sanitary Sewer MH Rehab). 3. Purchase award to PVS Technologies, Inc. in the amount of $259,000.00 for purchase and delivery of liquid ferric chloride “as needed”. Funding is available from 441-5122-536-52.21 (Water and Sewer Fund: Operating Supplies/Chemicals). Mr. Frankel moved to approve the Consent Agenda as amended, seconded by Mrs. Gray. Upon roll call the Commission voted as follows: Mrs. Gray – Yes; Mayor McDuffie – Yes; Mr. Carney – Yes; Dr. Alperin – Yes; Mr. Frankel – Yes. Said motion passed with a 5 to 0 vote. 9. REGULAR AGENDA: 9.A. PROPOSAL/DELRAY BEACH PRESERVATION TRUST/CENTENNIAL TIME CAPSULE: Consider approval of a proposal from the Delray Beach Preservation Trust to install a 100-Year Time Capsule in the City Hall lobby in recognition of the Delray Beach Centennial. The City Manager stated this is a proposal from the Delray Beach Preservation Trust to install a 100-Year Time Capsule in the City Hall lobby area in recognition of the Delray and staff would like permission from the City Commission to do that. Dr. Alperin moved to approve the proposal from the Delray Beach Preservation Trust to install a 100-Year Time Capsule in the City Hall lobby in recognition of the Delray Beach Centennial, seconded by Mr. Frankel. Upon roll call the Commission voted as follows: Mayor McDuffie – Yes; Mr. Carney – Yes; Dr. Alperin – Yes; Mr. Frankel – Yes; Mrs. Gray – Yes. Said motion passed with a 5 to 0 vote. 9.B. THIS ITEM HAS BEEN POSTPONED DUE TO THE REQUEST OF THE APPLICANT. 9.B.1. THIS ITEM HAS BEEN POSTPONED DUE TO THE REQUEST OF THE APPLICANT. 9.C. SPECIAL EVENT REQUEST/FASHION ON THE AVENUE: Consider approval of a special event request for Fashion on the Avenue, sponsored by Luxe Partners, Inc. and supported by the Downtown Development Authority, to be held on January 26, 2012, from 8:00 p.m. to 9:30 p.m.; granting of a temporary use permit per LDR Section 2.4.6(F) for closure and use of Atlantic Avenue from Swinton to the west side of N.E./S.E. 5th Avenue from 4:00 p.m. until 11:00 p.m. and use of the Hands lot for crew and models; and authorization of staff support for traffic control and security, barricading, use of a City-owned portable generator 7 11/15/11 and banner hanging; contingent upon receipt of a certificate of liability insurance and an executed hold harmless agreement by January 12, 2012. Robert A. Barcinski, Assistant City Manager, stated the Commission has been requested to consider approval of a Special Event permit for Fashion on the Avenue proposed to be held January 26, 2012 from 8:00-9:30 p.m. sponsored by Luxe Partners, Inc. and supported by the Downtown Development Authority (DDA). Mr. Barcinski stated staff also requests that the Commission approve a temporary use permit for the closure of Atlantic Avenue from Swinton Avenue to the east side of NE/SE 5th Avenue from 4:00 p.m. until 11:00 p.m., use of the Hand’s lot for crew and models and to provide staff assistance for traffic control and security, barricading, banner hanging and use of a portable generator. The estimated overtime cost for this event is $3,050.00 and barricade rental is $150.00 for a total cost of $3,200.00. The event producer is responsible for paying 100% of all City costs per Special Event Policies and Procedures. Staff recommends approval contingent upon the receipt of a Certificate of Liability Insurance by January 12, 2012 as well as a Hold Harmless Agreement by January 12, 2012. Dr. Alperin inquired about how many closings of the Avenue the Commission was going to allow per year. Mr. Barcinski stated the City used to allow eight maximum and then changes were made to the policies and procedures. Mr. Barcinski stated there are only so many major events at the tennis center that you can have in a month; you cannot have an intermediate event on top of a major event. Mr. Barcinski stated it limits the City on the intermediate events to two a week. He stated the City may have to start looking at limits and the only free months are June, July, August, and September to some degree. Dr. Alperin asked if the overtime costs are calculated accurately. Mr. Barcinski stated each employee calculates their base time times overtime plus the fringe benefit requirement and they all figure in the multiplier with the exact overtime based on who works. Mr. Barcinski stated each department sends a report at the end of the event to his office; they audit and verify and then send it down to the Finance Department for the billing to the event producer. Mr. Barcinski stated this is to help the retail. Marjorie Ferrer, Executive Director of the Downtown Development Authority, stated the retailers are very excited about this event and introduced the following individual who is a new merchant in Pineapple Grove Way. Loren Malice (sp?), stated she came to Delray Beach by way of Connecticut and then New York where for 18 years she was the Director of Special Events and Communications under Governor Patacki for the Economic Development Office, where she produced such events such as Fashion Week. Mr. Frankel moved to approve the Special Event Request for Fashion on the Avenue to be held on January 26, 2012 from 8:00 p.m. to 9:30 p.m., seconded by Mrs. Gray. Upon roll call the Commission voted as follows: Mr. Carney – Yes; Dr. 8 11/15/11 Alperin – Yes; Mr. Frankel – Yes; Mrs. Gray – Yes; Mayor McDuffie – Yes. Said motion passed with a 5 to 0 vote. 9.D. APPOINTMENT TO THE GREEN IMPLEMENTATION ADVANCEMENT BOARD: Appoint one (1) regular member to the Green Implementation Advancement Board to serve an unexpired term ending July 31, 2012. Based upon the rotation system, the appointment will be made by Commissioner Gray (Seat# 4). Mrs. Gray moved to appoint Isabelle Alarie as a regular member to the Green Implementation Advancement Board to serve an unexpired term ending July 31, 2012, seconded by Mr. Carney. Upon roll call the Commission voted as follows: Dr. Alperin – Yes; Mr. Frankel – Yes; Mrs. Gray – Yes; Mayor McDuffie – Yes; Mr. Carney – Yes. Said motion passed with a 5 to 0 vote. 9.E. APPOINTMENT TO THE EDUCATION BOARD: Appoint one (1) regular member to the Education Board to serve an unexpired term ending July 31, 2012. Based upon the rotation system, the appointment will be made by Commissioner Gray (Seat #4). Mrs. Gray moved to appoint Angela Burns as a regular member to the Education Board to serve an unexpired term ending July 31, 2012, seconded by Mr. Frankel. Upon roll call the Commission voted as follows: Mr. Frankel – Yes; Mrs. Gray – Yes; Mayor McDuffie – Yes; Mr. Carney – Yes; Dr. Alperin – Yes. Said motion passed with a 5 to 0 vote. At this point, the time being 6:28 p.m., the Commission moved to Item 11, City Manager’s response to Prior Public Comments and Inquiries from the City Manager and the Public. 11.A. City Manager’s response to prior public comments and inquiries. The City Manager stated at the last meeting Ms. Jolene McClure the owner of Off the Avenue expressed safety concerns regarding persons loitering, drinking, and potential drug use and sales in the area of Starbucks Coffee Shop at S.E. 5th Avenue and Atlantic Avenue. He stated Assistant Chief Goldman met with Mr. Knoblock at “Off the Avenue” and also communicated with Ms. McClure via telephone. The City Manager stated thus far the Police Department has conducted numerous extra patrols in the area and increased the presence of Clean and Safe Officers. Additionally, Community Patrol has increased their activity in the area and spot cars have been deployed. Assistant Chief Goldman and Captain Mitchell met with the Starbucks property owner and manager to get buy-in from the community partners and explore C.P.T.E.D (Crime Prevention Through Environmental Design) opportunities. The City Manager stated some of the issues that were addressed were the flower pot that was outside Starbucks and was used as a place to stand and smoke. The flower pot belongs to the CRA and will be removed in the coming days. A bicycle rack will take its place and 9 11/15/11 should take up some space in the area so the crowds will not be able to congregate there. In addition, the City Manager stated there is a small alleyway between Starbucks and “Off the Avenue” that is being used for various inappropriate activities and in the coming days the Police Department will get with essential personnel and have the area approved for a fence to stop this type of behavior. The Police Department is also in the process of obtaining “No Trespassing Signs” for the area to enforce the subjects who are not patrons and malinger around the business during non-business hours. During their conversations, staff was made aware of another issue at Big Al’s Steak restaurant with the use of that bathroom and this is also being addressed. The initial review of Ms. McClure’s complaint was solidified that there are quality of life matters in the immediate area that warrant the City’s attention. The City Manager stated in reference to calls for services at Off the Avenue the Police Department is showing seven calls from Off the Avenue since July. The Police Department is addressing the lack of presence issue; however, last month Clean and Safe Officers conducted over 350 extra patrols in the Clean and Safe area and also had 32 man hours on the bicycle and 20 man hours on the T3. Also, the City Manager stated the owners of the Hartman House were concerned about issues around that establishment. On November 9, 2011, Assistant Chief Goldman and Jennifer Costello attended a community meeting at the Hartman House and the topics of discussion were crime in the area, crime prevention, and transitional housing. The meeting was filled with questions and Assistant Chief Goldman advised that it went well and he received a follow-up email from Ms. Goldstein thanking him for his time and comments. The next step will be to have Sergeant Nicole Guerriero provide crime prevention tips to the neighborhood. The Police Department will work on increasing both volunteer and police patrols in the area. Ms. Costello is working with other city members and coordinating another meeting to address concerns on housing and code issues. Secondly, the City Manager stated regarding skateboarding comments that were brought up by Vice Mayor Gray it should be noted that the Police Department has increased patrols and have spoken to some subjects who frequent the area. The City Manager stated officers will continue to monitor and address issues as they arise. The City Manager stated Dr. Kirson had expressed concerns about response times and staff looked at average response times in October compared to June. In June, the average response time for priority one calls was five minutes and 34 seconds; in October it was 4 minutes and 55 seconds; unit reaction time which is the time from the first dispatch to first arrival in June was 3 minutes 18 seconds and October was 3 minutes 16 seconds. The City Manager stated the call that Ms. McClure was concerned about was classified as a priority 3 call and the average response time in October for priority 3 calls was 23 minutes and 29 seconds. He stated from April through October the average response time for a class 3 call was 22 minutes and 26 seconds. The calls are held in dispatch until someone is free and the unit reaction time from the time of the first dispatch to first arrival over a three month period was 5 minutes and 13 seconds. He stated if officers are busy on other things then priority 3 calls fall to the bottom of the list. Lastly, the City Manager stated at the last meeting Mr. Cottone made some comments about the fees for various Parks and Recreation programs. The City 10 11/15/11 Manager stated Mr. Cottone is a member of the Financial Review Board and the Board has been pressing the City to recover a larger part of the cost for such programs. Therefore, the City Manager stated his comments and the previous comments from the Board are in opposition to each other. The City Manager stated the Board needs to decide what they want the City to do unless Mr. Cottone is speaking solely for himself and not really to the Board. 11.B. From the Public. 11.B.1. Mike Malone, 64 S.E. 5th Avenue, Delray Beach, FL 33444, thanked the City Manager and staff for the quick response to what he just reported on for those areas in downtown Delray Beach. 11.B.2. Gladys Whigham, speaking on behalf of Palm Beach County Commissioner Priscilla Taylor, congratulated Chevelle Nubin on this prestigious achievement that she has accomplished in regards to obtaining her MMC. 11.B.3. Dr. Victor Kirson, D.D.S., 2050 Alta Meadows Lane #2110, Delray Beach, FL 33444 (President of the Board of Directors of Tierra Verde at Delray Beach and Member of the Alliance), thanked the City Manager for the accurate statistics. He stated he attended the Hartman House and there was about 30-35 residents. Dr. Kirson stated he was astounded by the fact that a lot of them have been robbed. Dr. Kirson stated Assistant Chief Goldman went over the facts. The members of the halfway houses the drug addicts and drug dealers apparently have a lot of rights and we cannot violate their rights. Dr. Kirson suggested that we may want to bust in, catch them with the drugs, and send them to jail. Dr. Kirson stated if a drug addict is picked up with an illegal substance and arrested, by the time he gets to the County, the charge has dropped to drug paraphernalia and by the time the hearing is supposed to happen it has dropped completely. Dr. Kirson stated if they pick up a drug dealer it does not matter what happens because in two hours they will have another drug dealer at that gas station on the corner. He stated the Police Department does everything they can but they are behind the eight ball. Dr. Kirson stated about eight years ago Hazleton, Pennsylvania dealt with the problem and arrested everyone from the ship that unloaded the drugs down to the mothers that were selling the drugs and by getting the whole chain they were able to solve the problem. Dr. Kirson asked what this would take for Delray Beach to do something like this. He stated if we get rid of the drugs the halfway houses will disappear in Delray Beach. Mayor McDuffie stated the State Attorney’s Office has Quarterly Advisory Council Meetings and there are a nominal amount of people in attendance. Mayor McDuffie stated at the City level many things have been done to try to curb the issues that we have with sober houses and have also gone to Washington, D.C. with sober house issues and pill mill issues. Mayor McDuffie stated he also met with Sheriff Bradshaw on those issues as well. Mayor McDuffie encouraged everyone to contact the Palm Beach County State Delegation and with the Congressional Delegation and let them know what is going on. 11 11/15/11 11.B.4. Christina Morrison, 2809 Florida Boulevard #207, Delray Beach, FL 33483, stated the Economic Council is working on a new resolution to close the loophole on internet sales tax. Ms. Morrison stated they have finished their initial process of the 6 pillars in Palm Beach County. She stated the vision of the Economic Council and the Florida Chamber is the year 2030. Ms. Morrison stated by the year 2030 they want to be a State with high paying jobs, a State with global competitiveness, and a State of vibrant communities all like Delray Beach. Ms. Morrison stated the 6 pillars are talent, supply, and education, innovation and economic development, quality of life in quality places, infrastructure and growth leadership, civic and governance, and business climate and competitiveness. She stated starting at the city level they are looking to create new leaders to carry us forward to the new economic sense of the future. At this point, the time being 6:47 p.m, the Commission moved to Item 12, First Readings. 12. FIRST READINGS: 12.A. ORDINANCE NO. 43-11: Consider amending Ordinance No. 70-89 which revises Section 1, “Designation”, and Section 2, “Requirements of Designation” of Ordinance 70-89, and an amendment to Land Development Regulations (LDR) Section 4.5.1(K)(2), “Designation of Historic Sites”, to provide for a revised legal description of the Fontaine Fox Designation. If passed, a public hearing will be held on December 6, 2011. The caption of Ordinance No. 43-11 is as follows: AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AMENDING ORDINANCE NO. 70-89 THAT PROVIDED FOR THE HISTORIC DESIGNATION OF THE FONTAINE FOX HOUSE AND PROPERTY; AMENDING THE LAND DEVELOPMENT REGULATIONS OF THE CODE OF ORDINANCES OF THE CITY OF DELRAY BEACH, FLORIDA, BY AMENDING ARTICLE 4.5, “OVERLAY AND ENVIRONMENTAL MANAGEMENT DISTRICTS”, SECTION 4.5.1, “HISTORIC PRESERVATION SITES AND DISTRICTS”, SUBSECTION (K), “DESIGNATION OF HISTORIC SITES”, PROVIDING A SAVING CLAUSE, A GENERAL REPEALER CLAUSE, AND AN EFFECTIVE DATE. (The official copy of Ordinance No. 43-11 is on file in the City Clerk’s office.) 12 11/15/11 The City Attorney read the caption of the ordinance. Paul Dorling, AICP, Director of Planning and Zoning, stated this ordinance amends the legal description and development restrictions contained in Ordinance 70-89. Mr. Dorling stated this is the current Fontaine Fox designation. The new plat will reconfigure the size of Lot 3, and shift the existing north fifty feet (50’) onto Lots 1 and 2 of Ocean Apple Estates, Plat II are not locally designated parcels, the historic designation of their new southern fifty feet (50’) will not be removed, and the overall boundary of the Fontaine Fox House designation will not be altered. At its meeting of November 2, 2011, the Historic Preservation Board (HPB) recommended approval with a 6 to 0 vote. Dr. Alperin moved to approve Ordinance No. 43-11 on FIRST Reading, seconded by Mrs. Gray. Upon roll call the Commission voted as follows: Mrs. Gray – Yes; Mayor McDuffie – Yes; Mr. Carney – Yes; Dr. Alperin – Yes. Said motion passed with a 5 to 0 vote. At this point, 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 The City Manager stated he mentioned about what the Police Department is doing at the S.W. 5th Avenue Park and they also plan to install a standard “No Skateboarding” sign there. The City Manager stated when he was in Fort Collins he saw something that the City is going to use in some of the downtown area. He stated it is actually painted onto the sidewalk and is a sign that says “Dismounts On” with a picture of a bicycle and a skateboard with a circle with a line through it. The City Manager stated people do not realize that they are not supposed to skateboard or bicycle on the sidewalks downtown. Secondly, the City Manager stated regarding the signs for the parking garage the City has the two large very visible monument signs at the intersection of N.W. 1st Street and 2nd Avenue and on N.E. 1st Street and N.E. 1st Avenue at the Old School Square garage entrance. The City has contacted Palm Beach County seeking permission to install directional signage on the traffic signal cables at Swinton Avenue and Atlantic Avenue and Swinton Avenue and N.E. 1st Street. The County denied a request to a limited capacity of the cables and poles to support the additional weight of the signage. The City Manager stated the only remaining option is to install additional street signage strategically located along primary routes into the downtown area. The City will identify those locations and install appropriate signage for both the Old School Square and Federspiel garages. 13 11/15/11 The City Manager stated he previously sent out by email the fees the City has received from the in-lieu program in each zone. He stated prior to the garages opening, the City sold 121 spaces. The Federspiel garage opened in June 2007 and since then we have sold 82 spaces for a total of 203 spaces altogether that we have sold. The City Manager stated with regard to a concern about drainage issues being created by new construction, the required submittals have been largely limited to calculations verifying in compliance with water quality parameters. The Master Drainage Plan established design criteria in three categories: (1) new subdivisions west of I-95, (2) new subdivisions east of I-95, and (3) within existing built up areas or infill development. The City Manager stated some of the criteria has changed since the Master Plan was developed specifically related to minimum finished floor elevations in the eastern area of the city particularly on the barrier island. As a result, we have had some flooding issues. The City Manager stated there are suggestive modifications to design criteria. Off-site discharge requirements based on “pre” versus “post” construction calculations requiring on-site retention of the difference and some criteria on site grading no net decrease in the existing watershed surface storage volume where the average finish site grade exceeds 12 inches above the centerline of the existing roadway. The City plans to schedule some design criteria meetings for local developers, builders, engineers, planners and architects to get their input to possible changes in the land development regulations to deal with that issue. 13.B. City Attorney The City Attorney had no comments or inquiries on non-agenda items. 13.C. City Commission 13.C.1. Dr. Alperin Dr. Alperin asked for the total number of spaces in the two garages. The City Manager stated Old School Square is over 500. Mayor McDuffie stated there are a little over 700 spaces. Dr. Alperin stated we have sold about 200 so it is a significant amount that people are paying back for the garage investment. Dr. Alperin inquired about the additional dome lights being up and stated the garage is much better lit than it was before. Secondly, Dr. Alperin stated he attended a CRA meeting last week and was disturbed by a vote they had to delay a decision they had already made with an agreement with the Chamber of Commerce. He stated the CRA backed out of their vote and reneged on an agreement. 14 11/15/11 13.C.2. Mrs. Gray Mrs. Gray stated she attended the National League of Cities Conference in Phoenix, Arizona last week and it was a great conference focusing on economic development. Secondly, Mrs. Gray stated the CRA will be hosting a meeting tonight at 5:30 at the Delray Beach Public Library concerning the West Atlantic Avenue proposed hotel. Lastly, Mrs. Gray stated Congressman Hastings’ office asked her to sit on their Military Academy Interview Committee and she will be interviewing 11 young adults for the West Point Academy. 13.C.4. Mr. Frankel Mr. Frankel stated he attended the Chris Evert Event over the weekend with Deputy Vice Mayor Tom Carney. The event raised $800,000.00 which is $100,000.00 more than last year. Mr. Frankel stated this event is great for the charities but it is also great for the city. Secondly, Mr. Frankel stated on November 11, 2011 there were eight weddings on the beach. At this point, the time being 7:00 p.m., the Commission moved to the duly advertised Public Hearings portion of the Agenda. 10. PUBLIC HEARINGS: 10.A. RESOLUTION NO. 49-11: Consider approval of Resolution No. 49-11 allowing for a fire assessment fee, if adopted, to be collected for a portion of fiscal year 2012, and to be placed on the property tax bill for the fiscal year beginning October 1, 2012. The caption of Resolution No. 49-11 is as follows: A RESOLUTION OF THE CITY OF DELRAY BEACH, FLORIDA ELECTING TO USE THE UNIFORM METHOD OF COLLECTING NON-AD VALOREM ASSESSMENTS LEVIED WITHIN THE INCORPORATED AREA OF THE CITY STARTING FISCAL YEAR 2013 AND COLLECTING NON-AD VALOREM ASSESSMENT FOR A PORTION OF FISCAL YEAR 2012 UNDER FLORIDA STATUTE SECTION 170.201; STATING A NEED FOR SUCH LEVY; PROVIDING FOR THE MAILING OF THIS RESOLUTION; AND PROVIDING FOR AN 15 11/15/11 EFFECTIVE DATE. (The official copy of Resolution No. 49-11 is on file in the City Clerk’s office.) 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. The City Attorney stated at the last Workshop meeting the Commission gave staff direction to proceed with a fire assessment fee and under Florida State Statute 197.3632 the City Commission will need to adopt this resolution so we can place this starting for the 2013 fiscal year on the non-ad valorem assessment roll of the tax roll for Palm Beach County. The City Manager stated the resolution authorizes the assessment for the current fiscal year. Mayor McDuffie declared the public hearing open. Christina Morrison, 2809 Florida Boulevard #207, Delray Beach, FL 33483, stated approximately six months ago this was first talked about as a means of gathering some kind of taxation from the smaller properties in town that were not paying any taxes or very low taxes (i.e. condos, small homes). Ms. Morrison stated those homes that were not paying any real estate taxes also would be paying the smallest amount of the fire assessment. Ms. Morrison stated the fire assessment as was presented last week wants to tax industrial and light industrial properties at the same rate as other commercial properties. She stated one of her investors Park Ten they pay over $300,000.00 in tax bills. Ms. Morrison stated if this goes through for an industrial property it would add an additional $15,000.00 in tax dollars needed to keep running the business park. She stated industrial properties have suffered greatly over the last few years because they cater to contractors, suppliers and distributors that have been hard hit by the recession. Ms. Morrison stated they have significant vacancies paying huge real estate taxes and now the City wants to hit them with another tax. She stated she had some research done today and found that West Palm Beach for industrial and light industrial charges one cent per square foot; Lake Worth proposes to charge two cent a square foot; Boynton Beach is five and no one in Boca knew if there is a tax on the industrial properties. Ms. Morrison urged the Commission to reconsider the tax for industrial parks which do not carry the big value that a restaurant or store does. Mrs. Gray suggested that we consider the information provided by Ms. Morrison. The City Manager stated the rates are not being set this evening but just establishing the legal basis to do it in the future. Mr. Carney commented about the comparison survey as related to the average residential assessment. He stated he would have like to have seen that same survey as it related to not only light industrial but also commercial. 16 11/15/11 Brief discussion followed by the Commission. The City Manager suggested that the Commission have a Special Work session on either November 29, 2011 or November 30, 2011. Mr. Frankel stated the Commission has a 5:00 p.m. Water Management Meeting on Tuesday, November 29, 2011 so if the Commission decides to have a Work session it would have to be at 6:30 p.m. It was the consensus of the Commission to have a special meeting. There being no one else from the public who wished to address the Commission regarding Resolution No. 49-11, the public hearing was closed. Mr. Frankel moved to approve Resolution No. 49-11, seconded by Dr. Alperin. Upon roll call the Commission voted as follows: Mayor McDuffie – Yes; Mr. Carney – Yes; Dr. Alperin – Yes; Mr. Frankel – Yes; Mrs. Gray – Yes. Said motion passed with a 5 to 0 vote. 10.B. ORDINANCE NO. 37-11: Consider a city initiated amendment to the Land Development Regulations (LDR) Section 4.5.3, “Flood Damage Control Districts”, Subsection (D), “Construction Standards”, to modify the section while maintaining compliance with State Statutes. The caption of Ordinance No. 37-11 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 4.5.3, “FLOOD DAMAGE CONTROL DISTRICTS”, SUBSECTION (D) “CONSTRUCTION STANDARDS”, TO MODIFY THE SECTION WHILE MAINTAINING COMPLIANCE WITH STATE STATUTES; PROVIDING A SAVING CLAUSE, A GENERAL REPEALER CLAUSE, AND AN EFFECTIVE DATE. (The official copy of Ordinance No. 37-11 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. Paul Dorling, AICP, Director of Planning and Zoning, stated on January 11, 2011, Ordinance No. 02-11 was adopted by the City Commission to amend the Flood 17 11/15/11 Damage Control Districts regulations. Mr. Dorling stated one of the major components of that was to require the lowest floor elevation be raised twelve (12”) inches. Mr. Dorling stated with new construction that has created some issues particularly with some of the in-fill issues we have in town. He stated staff was under the understanding that those were mandatory changes and it has been brought to staff’s attention that those were not mandatory and that they were optional. Mr. Dorling stated staff is removing the language to lower it twelve (12”) inches and relieve some of the issues. At its meeting of September 19, 2011, the Planning and Zoning Board reviewed this item and recommended approval; at its meeting of November 1, 2011, the City Commission recommended approval on first reading. Mayor McDuffie declared the public hearing open. There being no one from the public who wished to address the Commission regarding Ordinance No. 37-11, the public hearing was closed. Mr. Carney moved to approve Ordinance No. 37-11, seconded by Dr. Alperin. Upon roll call the Commission voted as follows: Mr. Carney – Yes; Dr. Alperin – Yes; Mr. Frankel – Yes; Mrs. Gray – Yes; Mayor McDuffie – Yes. Said motion passed with a 5 to 0 vote. 10.C. ORDINANCE NO. 40-11: Consider a city initiated amendment to the Land Development Regulations (LDR) Section 4.6.9(E)(3), “In-Lieu Fee”, to clarify that the maximum percentage of in-lieu spaces applies only to new developments and the expansion of existing developments. The caption of Ordinance No. 40-11 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 4.6.9, “OFF-STREET PARKING REGULATIONS”, SUBSECTION (E), “LOCATION OF PARKING SPACES”, PARAGRAPH (3), “IN-LIEU FEE”; TO CLARIFY THE APPLICABILITY OF THE MAXIMUM PERCENTAGE OF IN-LIEU PARKING SPACES PERMITTED; PROVIDING A SAVING CLAUSE, A GENERAL REPEALER CLAUSE, AND AN EFFECTIVE DATE. (The official copy of Ordinance No. 40-11 is on file in the City Clerk’s office.) 18 11/15/11 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. Paul Dorling, AICP, Director of Planning and Zoning, stated this will clarify that the 30% maximum percentage of in-lieu spaces applies only to new development and expansions of existing developments. Mr. Dorling stated when the Commission adopted Ordinance No. 21-11 it applied to 30% maximum based upon some recommendations from the City’s Parking Management Plan. That Plan was not specific with respect to the various options that it should apply to and after that adoption it became clear that the application should not apply to conversions of existing space as with most of those the 30% maximum would have been exceeded. At its meeting of October 10, 2011, the Downtown Development Authority (DDA) considered this ordinance and recommended approval; the West Atlantic Redevelopment Coalition (WARC) reviewed this item and recommended approval; at its meeting of October 13, 2011, the Community Redevelopment Agency (CRA) reviewed the item and recommended approval; at its meeting of October 25, 2011, the Parking Management Advisory Board (PMAB) reviewed the item and recommended approval; at its meeting of October 17, 2011, the Planning and Zoning Board reviewed the item and recommended approval with a 7 to 0 vote. Mayor McDuffie declared the public hearing open. There being no one from the public who wished to address the Commission regarding Ordinance No. 40-11, the public hearing was closed. Mr. Frankel stated he was not in favor of Ordinance No. 21-11 and it passed on a 4 to 1 vote (Commissioner Frankel dissenting). Mrs. Gray moved to approve Ordinance No. 40-11 on Second and FINAL Reading, seconded by Mr. Carney. Upon roll call the Commission voted as follows: Dr. Alperin – Yes; Mr. Frankel – No; Mrs. Gray – Yes; Mayor McDuffie – Yes; Mr. Carney – Yes. Said motion passed with a 4 to 1 vote, Commissioner Frankel dissenting. 10.D. ORDINANCE NO. 41-11: Consider a city initiated amendment to the Land Development Regulations (LDR) Section 2.4.6(F), “Temporary Use Permit”, to clarify the approval authority for uses under a tent. The caption of Ordinance No. 41-11 is as follows: AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AMENDING THE LAND DEVELOPMENT REGULATIONS, BY AMENDING SECTION 2.4.6, “PROCEDURES FOR OBTAINING PERMITS AND APPROVALS”, SUBSECTION (F), “TEMPORARY USE 19 11/15/11 PERMIT”, TO CLARIFY THAT THE CHIEF BUILDING OFFICIAL MAY GRANT PERMISSION FOR TEMPORARY USES, PROVIDING A SAVING CLAUSE, A GENERAL REPEALER CLAUSE, AND AN EFFECTIVE DATE. (The official copy of Ordinance No. 41-11 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. Paul Dorling, AICP, Director of Planning and Zoning, stated this will clarify the approval authority for uses under a tent. Mr. Dorling stated currently the LDRs identify that certain uses are allowed under temporary tents and to be approved by the City Commission. These uses include sale of seasonal items (i.e. Christmas trees and the like). Retail sales and commercial uses under a tent are prohibited and this ordinance adds the Chief Building Official as a granting authority to approve temporary uses for tents including seasonal items. Mr. Dorling stated this ordinance further identifies that uses for assembly purposes are now limited to a maximum of seven (7) days. This ordinance would allow a request for that type of use up to three (3) days to be done by the Chief Building Official and between three (3) and seven (7) days by City Commission and again prohibits further requests over seven (7) days. At its meeting of October 17, 2011, the Planning and Zoning Board reviewed the item and recommended approval with a 7 to 0 vote. At its meeting of November 1, 2011, the City Commission recommended approval at that time. Mayor McDuffie declared the public hearing open. There being no one from the public who wished to address the Commission regarding Ordinance No. 41-11, the public hearing was closed. Dr. Alperin moved to approve Ordinance No. 41-11, seconded by Mrs. Gray. Upon roll call the Commission voted as follows: Mr. Frankel – Yes; Mrs. Gray – Yes; Mayor McDuffie – Yes; Mr. Carney-Yes; Dr. Alperin – Yes. Said motion passed with a 5 to 0 vote. 10.E. ORDINANCE NO. 42-11: Consider an amendment to Chapter 33, “Police and Fire-Rescue Departments”, Section 33.64, “Contributions”, Subsection (A), “Member Contributions”, to increase employee contributions by 3% for police officers in compliance with the new terms of our Collective Bargaining Agreement. The caption of Ordinance No. 42-11 is as follows: 20 11/15/11 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AMENDING CHAPTER 33, “POLICE AND FIRERESCUE DEPARTMENTS”, SECTION 33.61, MEMBERSHIP; CONDITIONS OF ELIGIBILITY; APPLICATION”, SUBSECTION (B), “APPLICATION”, TO MODIFY MEMBER CONTRIBUTIONS; SECTION, 33.64, “CONTRIBUTIONS", SUBSECTION (A), “MEMBER CONTRIBUTIONS”, TO MODIFY MEMBER CONTRIBUTIONS FOR POLICE OFFICERS; PROVIDING A SAVING CLAUSE, A GENERAL REPEALER CLAUSE, AND AN EFFECTIVE DATE. (The official copy of Ordinance No. 42-11 is on file in the City Clerk’s office.) The City Attorney read the caption of the ordinance and stated this ordinance amends the City’s pension ordinance and makes it comport to the ratification of the collective bargaining agreement with the officers and sergeants. 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. Mayor McDuffie declared the public hearing open. There being no one from the public who wished to address the Commission, the public hearing was closed. Dr. Alperin moved to approve Ordinance No. 42-11, seconded by Mr. Frankel. Upon roll call the Commission voted as follows: Mrs. Gray – Yes; Mayor McDuffie – Yes; Mr. Carney – Yes; Dr. Alperin – Yes; Mr. Frankel – Yes. Said motion passed with a 5 to 0 vote. At this point, the time being 7:27 p.m., the Commission moved back to Item 13. 13.C.4. Mr. Carney Mr. Carney had no comments or inquiries on non-agenda items. 13.C.5. Mayor McDuffie Mayor McDuffie stated he had the opportunity to attend the Del-Aire Ribbon Cutting Ceremony for their new clubhouse which is 100,000 square feet. Secondly, Mayor McDuffie stated the Digital Divide Program is moving ahead and Commissioner Abrams is the Chair of the Palm Beach Broadband. Mayor McDuffie stated he has been in communication with Commissioner Abrams and 21 11/15/11 Commissioner Taylor to see what else we can do. Mayor McDuffie stated he has also been negotiating with a Foundation and if the City meets their criteria, we may receive a grant of $50,000.00 from them. He stated a Tri-Party Agreement is being worked on. Lastly, Mayor McDuffie stated he just got back from Ohio. There being no further business, Mayor McDuffie declared the meeting adjourned at 7:33 p.m. __________________________________________ City Clerk ATTEST: ____________________________________ M A Y O R 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 November 15, 2011, which Minutes were formally approved and adopted by the City Commission on ________________________. __________________________________________________ City Clerk 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. MEMORANDUM TO: Mayor and City Commissioners FROM: Lula Butler, Director, Community Improvement THROUGH: David Harden, City Manager DATE: November 22, 2011 SUBJECT: AGENDA ITEM 7.A. -REGULAR COMMISSION MEETING OF DECEMBER 6, 2011 FLORIDA CITY GOVERNMENT MONTH AT CARVER MORNING PROGRAM PRESENTATION ITEM BEFORE COMMISSION The City of Delray Beach hosted several activities during the month of October at the Carver Middle School morning program to help students understand the role of city government and their role as citizens as part of Florida City Government Month. This year we focused on water conservation. The students were exposed to a variety of people, activities and projects where they gained knowledge and understanding of the issues and opportunities facing our water supply. Students heard from City staff, took a field trip to the City’s water treatment facility and the Regional Waste Water Treatment Facility, they wrote an article for the Carver newsletter about their experience and competed in a water conservation poster contest. At the City commission meeting, the Students would like to present to the City Commission what they learned and show them several pieces of original art work that have been selected to be displayed on a Delray Beach bus shelter. Their presentation will culminate with an individualized proclamation from the Mayor for each student who participated in the program . WHEREAS, you are a student attending Carver Community Middle School in Delray Beach, Florida; and WHEREAS, Carver Community Middle School Morning Program Students celebrated Florida City Government Month in October and learned the importance of water conservation through the understanding of the City’s water and wastewater operations; and WHEREAS, you participated in the variety of activities including presentations from City staff, a tour of the City’s water and wastewater facilities, poster contest and writing news articles for the school newspaper; and WHEREAS, on Tuesday, December 6, 2011, you were recognized at the City Commission meeting for participating in the Florida City Government Month at Carver Community Middle School. NOW, THEREFORE, I, NELSON, S. MCDUFFIE, Mayor of the City of Delray Beach, Florida, on behalf of the City Commission do hereby proclaim: YOU As a Participant of Florida City Government Month and encourage You to continue to learn more about Your government and look forward to You becoming a concerned citizen of Delray Beach, Florida. IN WITNESS WHEREOF, I have hereunto set my hand and caused the Official Seal of the City of Delray Beach, Florida, to be affixed this 6th day of December, 2011. NELSON S. MCDUFFIE M A Y O R MEMORANDUM TO: Mayor and City Commissioners FROM: David T. Harden, City Manager DATE: November 29, 2011 SUBJECT: AGENDA ITEM 7.B. -REGULAR COMMISSION MEETING OF DECEMBER 6, 2011 LWDD 100TH ANNIVERSARY RESOLUTION PRESENTATION ITEM BEFORE COMMISSION Lake Worth Drainage District (LWDD) recognizes and commends the City of Delray Beach on their 100th Anniversary– Ronald Crone MEMORANDUM TO: Mayor and City Commissioners FROM: Chief Anthony Strianese THROUGH: David T. Harden, City Manager DATE: November 28, 2011 SUBJECT: AGENDA ITEM 7.C. -REGULAR COMMISSION MEETING OF DECEMBER 6, 2011 CHIEF'S ACHIEVEMENT AWARDS PRESENTATION ITEM BEFORE COMMISSION Chief Strianese will be presenting awards to participants in the 2011 Annual Law Enforcement Explorer Academy. BACKGROUND This award is being presented to participants and officers who attended the Tanah Keeta Boot Camp in Martin County, Florida. For seven days and nights, the officers assisted in coaching the explorers in a military style boot camp which taught life skills such as leadership, teamwork, self-confidence and trust. The Explorers also participated in physical agility workouts and confidence building exercises. MEMORANDUM TO: Mayor and City Commissioners FROM: David T. Harden, City Manager DATE: November 30, 2011 SUBJECT: AGENDA ITEM 7.D. -REGULAR COMMISSION MEETING OF DECEMBER 6, 2011 DOWNTOWN DEVELOPMENT AUTHORITY (DDA) MARKETING SUMMARY PLAN PRESENTATION ITEM BEFORE COMMISSION Marjorie Ferrer, Executive Director of Downtown Development Authority (DDA) will provide a presentation on the DDA Marketing and Program Summary. DDA Annual 2011 – 2012 Goal Plan Review 1 Presented July 18, 2011 POSITION MARKETING MARKETING & PROMOTION Objective: Continue Advertising locally and regionally to strengthen the brand, build awareness and increase sales within the DDA district Tactics: 1. Strengthen the Night and Day Downtown Delray Brand and momentum by continuing to promote and message through advertising vehicles that target the local and regional market Advertising Options: (Print/Online/Multi Media) -Direct Mail – post card -Magazine Advertising – Local and Regional/National o Examples: 2012 Travel Guide to Florida; Florida Travel Life; Southern Living; Travel Host/Clubhouse Living -Comcast Cable/Channel 5 – TV spots -Clear Channel – trade and package giveaways working with affiliate stations -Concierge Book -Palm Beach Post (editorial/advitorial special sections) -Monthly Merchant Promotional Campaign by building upon the Night & Day brand 2. Increase opportunities for merchants coop advertising within local and regional markets 3. Implement new and innovative methods of promoting through ads (QR codes: using video and web) 4. Continue to enhance the partnerships with the Palm Beach CVB and VisitFlorida that will provide new and innovative marketing opportunities for the Downtown Businesses -Through Travel Writer Visits and Media Trips that are conducted by the CVB and VisitFlorida 5. Reproduce the Downtown Guidebook as an inclusive resource of downtown information (city, hotels, events) and advertising tool for the merchants 6. Update content, design and production of the Downtown Kiosk Signs Objective: Maintain and Upgrade the Layout and Functionality of the DDA downtowndelraybeach.com site Tactics: 1. Enhance the navigation for the user to ensure that is customer friendly that will increase the number of page views 2. Continuing to update the merchant listings and monthly promotion components 3. Create welcome page, update other pages and enhance the photography 4. Update the administrative tools and reporting functionality 5. Monitor analytics and increase site traffic Objective: Marketing of Downtown Clusters and Economic Development Programs Tactics: 1. Christmas Lighting Displays and Sphere Tree, Valentine’s Day Heart displays /Mother’s Day Orchid campaign/Earth Day 2. Continue to work with restaurants on Savor the Avenue and Tastemakers promotions 3. Create the giveaway cross promotion for the Merchants (Tote Bag) 4. Develop Downtown Day tours/packages in partnership with the merchants (galleries, restaurants and shops) Objective: Customer Service Campaign for Merchants Tactics: 1. DDA Staff continued support to the merchants – one on one and group meetings 2. Celebrate merchants birthday’s and business anniversaries 3. Implement surveys quarterly to ensure quality of service as well as reinstitute the E-Newsletter Objective: Promote to Local Residents/Other Retail Promotions Tactics: 1. Brochures, posters, tri-rail, target facebook and contstant contact 2. Customer Research -Create Customer Event and focus groups to assist in gaining feedback and insights DDA Annual 2011 – 2012 Goal Plan Review 2 Presented July 18, 2011 POSITION MARKETING – CONTINUED: MARKETING & PROMOTION -CONTINUED: Objective: Visitors Information Center Tactics 1. Leverage the center and volunteers by enhancing the knowledge and information within the center 2. Add Digital frame of pictures 3. Continue to hold meetings for the Volunteers at local businesses 4. Enhance the training and uniforms of the Volunteers 5. Volunteer appreciation event COMMUNICATE & COLLABORATE WITH LOCAL BOARDS & CITY DEPARTMENTS Objective: Promote DDA’s presence to Community (Press releases, Newsletter/website campaign for visibility) Tactics: 1. Ensure the DDA logo is on all materials produced; presentations when asked to community groups, merchants and individual businesses 2. Continue as a speaker for any community group – Rotary, Kiwanis, etc. 3. Participate with the Chambers Leadership Delray by conducting one of the educational classes in downtown Objective: Continue to be active and communicate regarding all Planning Studies that involve the DDA District Tactics: 1. Master Plan Progress; West Atlantic Plan, Cluster Study, Osceola Neighborhood Plan with CRA 2. DDA board continue to remain active regarding cluster 4 retail and restaurant conversions 3. Periodic review of City Planning Documents Objective: Be present at relative Board and City Commission Meetings, Town Hall Meetings Tactics: 1. Board Members representing DDA on community boards 2. More in-depth comments on City projects for Approval Objective: Semi-annual Goals Workshop with CRA/City/DDA/Chamber of Commerce for clear work plan definition Tactics: 1. Participate with the organizations by presenting the marketing plan to the partners and finding ways to collaborate SUPPORT DELRAY BEACH MARKETING COOPERATIVE Objective: Events & Marketing Tactics: 1. Include DMC events within DDA Marketing Brochure and Guidebook 2. Co-promote through social media vehicles and email blasts (4 per month) 3. Engage with Staff monthly to review programs and opportunities 4. Include DMC events within Special Press Release opportunities available through the CVB 5. Provide DMC with use of the Downtown.com website and Constant Contact database – costs assumed by DDA for both 6. Enhance the opportunity to assist with Merchant Communications as it relates to the Downtown 7. Continue to share the golf cart for distribution of materials throughout downtown Objective: Christmas Tree/First Night Sponsorship Tactics: 1. Provide continued sponsorship funding for Tree and First Night 2. Market the event within the monthly advertising DDA Annual 2011 – 2012 Goal Plan Review 3 Presented July 18, 2011 PLACE SETTING SECURITY & CRIME Objective: Communicate Hospitality Resource Panel Learnings Tactics: 1. RHI Case Study 2. Good Neighbor Handbook production Objective: Downtown Security Plan /Meetings with Businesses Working with Police Department Tactics: 1. Continue communicating with the PD and work closely to help each other with keeping the downtown safe 2. Communicate updates to the Merchants on their behalf 3. Be involved with the downtown Safety plans Objective: Providing input to PD and City Tactics: 1. Conducted nighttime watch time activity downtown on a quarterly basis and more if found necessary 2. Ensure that any learnings from other cities, webinars, or feedback is communicated to assist the city and PD Objective: Implement Downtown Nighttime Ambassador Program Tactics: 1. Implement the Program in partnership with PD 2. Create press releases to promote the program 3. Communicate and train the downtown businesses on the program CLEAN & SAFE Objective: Effective Monitoring of the Dumpster/Trash and Lighting Tactics: 1. Perform Weekly monitoring program and communication sheets that will assist with the ongoing maintenance of the Downtown 2. Implement the Atlantic High School Clean team to complete the downtown sidewalks and store fronts 3. Institute a communication plan that will allow the merchants the opportunity and correct information of who to contact with Clean and Safe issues 4. Work to engage more businesses with the opportunity to green your business as started with the Green Restaurant Audit Objective: Regenerate the “Maintenance Plan” for Downtown Tactics: 1. Generate a meeting of the organizations that would be involved in the Downtown Maintenance plan 2. Create set of accomplishments to be made by year end TRAFFIC – PARKING -NOISE TRAFFIC Objective: Reproduce the Truckers Map for Downtown Tactics: 1. Update, Produce and Promote Atlantic Avenue Truckers Map 2. Communicate and update the constituents as it relates to the construction of US1 CONTINUED: TRAFFIC – PARKING -NOISE PARKING Objective: Monitor and Update of the Pedestrian Wayfinding Signs Tactics: 1. Promote the current parking locations throughout downtown 2. Monitor and report on the parking usage in downtown DDA Annual 2011 – 2012 Goal Plan Review 4 Presented July 18, 2011 3. Create the new wayfinding signs as part of the Beach Master Plan implementation Objective: Continue support of Downtown Shuttle Tactics: 1. Promote shuttle as an asset to our residents and visitors 2. Encourage customer service training and managing of the shuttle staff NOISE Objective: Support the Community, the PD/Code Enforcement with Noise information Tactics: 1. Continue to educate and communicate the City codes and ordinances to the businesses and communities within the district 2. Work closely with the City Staff to monitor the Clean and Safe maintenance ECONOMIC DEVELOPMENT RESEARCH -RETAIN -RECRUIT Objective: Business development/recruiting/retention Tactics: 1. Create, invest and promote Retail Recruitment Package that will engage new merchants 2. Participate in Monthly Economic Development Meetings with local agencies 3. Collaborate with the CRA Marketing team to co-promote each other’s services 4. Continue working with Florida Redevelopment Association and International Downtown Association regarding inclusion in conference programming and presentations /awards Objective: Cluster Study Update Data/Blount Hunter meetings as needed Tactics: 1. Continue to worked with Blount Hunter where necessary as it relates to the Cluster development 2. Complete the data for Cluster 7 and 5 Objective: Promote the Cluster Progress Tactics: 1. Message the areas progress through meetings and press releases to strengthen the opportunities of the Downtown 2. Increase the awareness of the positive impact of the cluster balance Objective: Physical Enhancements Tactics: 1. Assist with the development and implantation of the Beach Master Plan 2. Create a potted plant program for the Merchants that will enhance the downtown and drive sales as reported 3. Alley Clean up program to promote the alley navigation of the downtown Objective: Promote Downtown Delray’s Revitalization Tactics: 1. Continue Consulting and conference attendance or speaking opportunities 2. Leverage media stories as ways to promote Delray’s changes Objective: Communicate to Property Owners as Necessary Tactics: 1. Property Owners Meeting – increase awareness of the DDA and the assets available to them as owners and investors in the community PHYSICAL IMPROVEMENTS Objective: Side Street & Atlantic Avenue Beautification Tactics: 1. Engage with the City and Public Art Board to implement the Bike Corrals throughout the downtown 2. Develop the a program that will allow for new Adirondack Chairs to be placed within the Downtown that will DDA Annual 2011 – 2012 Goal Plan Review 5 Presented July 18, 2011 enhance the sociability. Objective: Monitor & suggest physical improvement within DDA District Tactics: 1. Ensure the gateway feature installation and communication takes place throughout the year Objective: Communicate Construction Updates Tactics: Communicate to the businesses with a consistent message as needed Delray Beach Downtown Development Authority 2010-2011 Marketing and Program Summary MISSION: The Delray Beach Downtown Development Authority (DDA) was created by Resolution as a dependent district of the City of Delray Beach in 1971 by state legislature. The main areas of involvement in downtown redevelopment include: Marketing and Promotion of the Downtown DDA district, business development, security and crime, clean & safe, traffic and parking, physical improvements, reviewing the City comprehensive plan within the DDA boundaries, housing and improvements of coordination with local boards and City departments. MISSION STATEMENT: The mission is to enhance and stimulate economic growth through position Marketing activities that engage the Downtown businesses, residents, and visitors while creating a clean, safe, physical and experiencial place to live work and invest. 2008-2013 DDA Mission: Position Marketing: 1. Marketing & Promotion of the Downtown District 2. Improve Coordination /Communication with local boards & City Departments to enhance the downtown 3. Support Delray Beach Marketing Cooperative through events Place Making: 4. Security & Crime /Clean & Safe management throughout the downtown 5. Traffic /Parking /Noise management and collaboration with the Downtown Economic Development: 6. Drive Economic Development within the Downtown through Retention and Recruitment 7. Physical Improvements and enhancements of the downtown 2008-2013 Goals Position Marketing 2010-2011 Downtown Brand Marketing Strategy • Develop a theme/brand that will promote the Downtown as a unique and sociable city which will enhance, strengthen and establish new business opportunities • Generate excitement among the business community that fosters a more collaborative working relationship • Create a monthly campaign recognizing specific categories of businesses 2010/2011 Monthly Campaigns 2010/2011 Monthly Brochures Each Month Representing a different theme to highlight the unique categories of businesses in Downtown Delray Beach 2010/2011 Advertising -samples Utilize photos of own businesses Within the community as another source of advertising Monthly magazine ads Negotiate Coop Opportunities for the Businesses to participate Monthly magazine ads and editorial Monthly TV Spot Downtowndelraybeach.com Website: •187,969Total Visits •145,385Unique • 618,312 Pageviews • 176,000 US Visits • 5000 Canadian Visits • Target Audience: Local and Regional • Supporting the Downtown Brand & Merchant Program & Drive to the Website • Print Ads: Over 50 Full and Half page Ads Designed & Produced 10 Editorial Pieces written Newspaper and Magazine • Multi Media: 216 -TV Monthly Spots (WPTV Channel 5) 90 -Radio Spots (Clear Channel Radio) • Online: Over 70 Online ads produces /e-blasts VisitFlorida, CVB, Sun-Sentinel, Clear Channel Radio, DelrayMag.com, FL Travel Lifestyles 2010-2011 Marketing Summary 2010/2011 Marketing Successes Total Impressions : 52 Million Impressions • Print – 33 Million Impressions • TV – 14.5 Million • Online – 4.5Million (includes Social Media outlets) • Email Blasts (constant contact): 28,260 emails opened /785 opens per blast (29% rate) average (industry average 22%) Total Leads and Database increases: 5,799 • Sweepstakes: – Conducted 6 Sweepstakes through Night and Day Campaign – Received 3000 Total Entries – 30% elected to receive DDA Updates • Publication Leads: – Received 5,326 Leads from VisitFlorida Visitor Guide Publication and Southern Living who receive direct mail updates 2010/2011 Marketing Investments • Total Business Participation 200 Merchants Participated 495 total Specials or Promotions to include in store events • Overall Merchant Rating of the Program 85% Rank the overall Awareness Program Good to Excellent 90% of the merchants surveyed said that the program assisted in developing new customers Comments: “Love the Night and Day – it makes the town seem alive” “Cannot measure the results but do believe it has increased awareness of my store” “Love the design, the commercial – especially at primetime” • Total Marketing Investments: DDA ‘s total: $101,343 In-Kind Received: $246,980 Sponsor Support: $67,349 Business Coop: $188,470 Total Value: $1,214,882 • Economic Impact: $204,347,608 *American Arts Calculator 2010/2011 Marketing Successes • Creating and Launching of Mobile Website • Web listing updates –updated photography • Capturing the Real Images of Downtown Businesses • Sphere Holiday Tree at the Beach • Reusable Tote Bag Giveaway and Earth Day on the Avenue (10,000 given away) • Visitor Information Center visits (14,200 visitors) • Successful Retail Promotions – Valentine’s Day and Mother’s Day • Implemented Social Media campaign Coordination & Communication with Boards and City • 2010/2011 DDA Advisory Board Members continue their involvement within the Community Boards and with the City • Strong presence at the monthly DDA Meetings supporting the DDA’s 40 years of progress Support the Delray Beach Marketing Cooperative • DDA Sponsorship of the Christmas Tree • DDA Sponsorship of First Night • DDA Board Member is also Board Member on DBMC • Provide the DBMC with access to the www.downtowndelraybeach.com website and other related programs 2010-2011 Place Making Clean & Safe & Security/Crime • Monitor the Nighttime progress in all areas • Atlantic High School Clean Team – 300 Block Cleaned – Partial of the 400 Block – Over $2000 raised for Team • Nighttime Ambassador Volunteer Program • Weekly Monitor and Tracking sheets with the City Traffic – Parking – Noise • Parking Implementation Committee • Merchant Parking Monitoring – Employee Parking – Valet • Working closely with the PD and businesses on Code updates 2010-2011 Economic Development Economic Development • Retail Recruitment Package • Monthly Promotion Campaign supporting Retention of the existing businesses • Completed a sell-out Tastemakers and Savor the Avenue Event • One on One meeting with the businesses • Conducted a storefront enhancement with Potted Plants Physical Improvements • Working with the City Team on the Beach Master Plan, Veterans Park and Worthing Park, Atlantic Ave. Bridge • Gateway Feature Position Marketing: 1. Marketing & Promotion of the Downtown District 2. Improve Coordination /Communication with local boards & City Departments to enhance the downtown 3. Support Delray Beach Marketing Cooperative through events Place Making: 4. Security & Crime /Clean & Safe management throughout the downtown 5. Traffic /Parking /Noise management and collaboration with the Downtown Economic Development: 6. Drive Economic Development within the Downtown through Retention and Recruitment 7. Physical Improvements and enhancements of the downtown 2010-2011 Goal Summary Looking ahead 2011/2012 Position Marketing: 1. Marketing & Promotion of the Downtown District 2. Improve Coordination /Communication with local boards & City Departments to enhance the downtown 3. Support Delray Beach Marketing Cooperative through events Place Making: 4. Security & Crime /Clean & Safe management throughout the downtown 5. Traffic /Parking /Noise management and collaboration with the Downtown Economic Development: 6. Drive Economic Development within the Downtown through Retention and Recruitment 7. Physical Improvements and enhancements of the downtown 2011-2012 Goals Highlights Marketing Campaign • Enhance the creative and keep a consistent “Look “throughout the marking pieces • Expand the audience and better identify the target customer •Continually drive customers to the DDA website for information (downtowndelraybeach.com) (this year plan to upgrade the site) • Drive customers to social media site (facebook.com/delraydda) • Ultimately Increase Sales of the Downtown Businesses • Print Media –Local and National Target – Brochures and Posters – Magazine and Newspaper • Social Media – Local and National – Facebook Ads monthly – Merchant offers posted – Expanding DelrayDDA page • TV Commercial Spots – Local – Channel 5 and Comcast – :15 second spot – Merchant involvement Advertising Outlets • Continue to Build Momentum • Continue to Produce & Market the Monthly Themed Brochure • Increase Merchant Participation • Increase customer awareness and drive sales • Grow impressions to exceed 120 Million through all advertising vehicles Marketing & Promotion Brochures and Posters 2011-2012 Place Making • Clean & Safe: work closely with the City Departments to monitor and manage the cleanliness of the downtown – Atlantic High School Clean Team to continue – Earth Day on the Avenue • Security & Crime: – work closely with the Hospitality Resource Panel and the PD – Enhance communication with the Merchants and the Clean & Safe Officers to monitor the security of Downtown – Implement the Ambassador Program • Traffic/Parking: – Implementation Team – Shuttle Marketing Program – Wayfinding Sign enhancement – Noise monitoring 2011-2012 Economic Development • Recruiting and Retention – Focus on retaining the businesses that we have and enhancing their business – Create a Retail Recruitment package highlighting the success stories of downtown businesses – Promote Progress – Enhance communication • Economic Development – Cluster Study Updates – Co-Host the 4th Annual Savor the Avenue Event -March 29, 2012 – Co-Host the 4th Annual Tastemakers Event -Aug. 2012 – Valentines Day and Mother’s Day Campaigns – Holiday Lighting and the Sphere Tree at A1A • Physical Improvements: – Beach Master Plan Implementation Team – Promote and Communicate the Progress and Development Thank you from the DDA Team: Marjorie Ferrer, Executive Director & Laura Simon, Associate Director And all the downtown businesses! MEMORANDUM TO: Mayor and City Commissioners FROM: Ronald Hoggard, AICP, Principal Planner Paul Dorling, AICP, Director Planning and Zoning THROUGH: City Manager DATE: November 17, 2011 SUBJECT: AGENDA ITEM 8.A. -REGULAR COMMISSION MEETING OF DECEMBER 6, 2011 FINAL SUBDIVISION PLAT APPROVAL /OCEAN APPLE ESTATES PLAT TWO ITEM BEFORE COMMISSION The item before the City Commission is the certification of a final plat for a 1.52 acre three lot, singlefamily subdivision known as Ocean Apple Estates Plat Two. This plat is being processed pursuant to LDR Section 2.4.5(K), Minor Subdivisions. BACKGROUND The subject property is located within the North Beach/Seagate Neighborhood Overlay District at the southeast corner of Andrews Avenue and Hammond Road. It is zoned Single Family Residential (R-1-AAA). The property is currently platted as Lots A and B, Lane Subdivision (Plat Book 91, Page 183) and Lot 3, Ocean Apple Estates (Plat Book 65, Page 100). An existing two-story single-family residence, constructed in 2010, is located on Lot A of Lane Subdivision at 1206 Hammond Road. The other two lots are undeveloped. The replat will reconfigure the lots in the existing subdivisions by taking the north 50 feet of Lot 3, Ocean Apple Estates and adding it to Lots A and B of Lane Subdivision. This replat is now before the City Commission for final action. Plat Analysis: City staff has reviewed the plat and determined that all technical comments have been satisfied. Pursuant to LDR Section 3.1.1, prior to approval of development applications, certain findings must be made in a form which is part of the official record. This may be achieved through information in the application, the staff report, or minutes. Findings shall be made by the body which has the authority to approve or deny the development application. These findings relate to Future Land Use Map Consistency, Concurrency and Consistency with the Comprehensive Plan, and Compliance with the Land Development Regulations. Future Land Use Map The subject property has a Future Land Use Map designation of LD (Residential-Low Density, 0-5 du/ac) and is zoned R-1-AAA (Single Family Residential). Pursuant to the Land Use Designation/Zoning Matrix (Table L-7, Future Land Use Element), the R-1-AAA zoning district is consistent with the LD Land Use Map Designation. Within the R-1-AAA zoning district, conventionally sited single family detached residences are allowed as a permitted use. Concurrency Since there are no additional lots being created with the replat, a Concurrency finding is not required. No internal street system is proposed with this subdivision, as direct access is available from Andrews Avenue and Hammond Road. Both water and sewer service are available via connection to existing lines. A $500 park impact fee will be required at issuance of a building permit for any new residencial units constructed on Lots 2 or 3. Consistency The performance standards set forth in LDR Section 3.2.3 (Standards for Site Plan and/or Plat Actions) shall be the basis upon which a finding of overall consistency is to be made. As described in Appendix “A”, (attached) a positive finding for consistency can be made as it relates to Standards for Plat Actions. Land Development Regulations The proposed Ocean Apples Estates Plat Two will contain three single-family lots with widths between 100 and 140 feet. Pursuant to LDR Section 4.3.4(E)(3), for corner lots, the side having the least street frontage shall be the front for setback purposes. The front for Lots 1 and 2 will be Hammond Road and the front for Lot 3 will be Andrews Avenue. The proposed lots, at 0.44, 0.49 and 0.60 acres, are consistent and compatible in size with existing lots in the area. As shown on the following table, all three lots meet or exceed the minimum lot dimension requirements in Section 4.3.4(K), “Development Standards Matrix”. Based upon the above, positive findings with respect to Future Land Use Map Consistency, Concurrency and Consistency with the Comprehensive Plan, and Compliance with the Land Development Regulations can be made. Lot Lot Size(Square Feet) Lot Width Lot Depth Lot Frontage Minimum Required 12,500 100’ 110’ 100’ Proposed Lot 1 19,084 127.4’ 150’ 127.4 Proposed Lot 2 21,248 140’ 154.45 140’ Proposed Lot 3 26,050 100’ 260.50 100’ REVIEW BY OTHERS Minor Subdivisions are not reviewed by the Planning and Zoning Board and the property is not located in an area requiring recommendations from any other Board or Agency. Courtesy Notices: Courtesy notices have been sent to the following homeowner’s and/or civic associations: • Neighborhood Advisory Council • Beach Property Owners Association RECOMMENDATION Move approval of Ocean Apple Estates Plat Two,, by adopting the findings of fact and law contained in the staff report and finding that the request and approval thereof is consistent with the Comprehensive Plan and meets the criteria set forth in Section 2.4.5(K) (Minor Subdivisions), Section 3.2.3 (Standards for Site Plan and/or Plat Actions) and Section 3.1.1 (Required Findings) of the Land Development Regulations: Y:\GENERAL CADD\Gxd\11-41.gxd --11/17/2011 --11:46 AM --Scale 1 : 240.0000 Y:\GENERAL CADD\Gxd\11-41.gxd --11/17/2011 --11:47 AM --Scale 1 : 240.0000 1 A P P E N D I X A S T A N D A R D S F O R P L A T A C T I O N S A. Building design, landscaping, and lighting (glare) shall be such that they do not create unwarranted distractions or blockage of visibility as it pertains to traffic circulation. Not applicable X Meets intent of standard Does not meet intent B. Separation of different forms of transportation shall be encouraged. This includes pedestrians, bicyclists, and vehicles in a manner consistent with policies found under Objectives D-1 and D-2 of the Transportation Element. Not applicable X Meets intent of standard Does not meet intent C. Open space enhancements as described in Policies found under Objective B-1 of the Open Space and Recreation Element are appropriately addressed. Not applicable X Meets intent of standard Does not meet intent D. The City shall evaluate the effect that any street widening or traffic circulation modification may have upon an existing neighborhood. If it is determined that the widening or modification will be detrimental and result in a degradation of the neighborhood, the project shall not be permitted. Not applicable X Meets intent of standard Does not meet intent E. Development of vacant land which is zoned for residential purposes shall be planned in a manner which is consistent with adjacent development regardless of zoning designations. Not applicable Meets intent of standard X Does not meet intent 2 F. Vacant property shall be developed in a manner so that the future use and intensity are appropriate in terms of soil, topographic, and other applicable physical considerations; complementary to adjacent land uses; and fulfills remaining land use needs. Not applicable Meets intent of standard X Does not meet intent G. Redevelopment and the development of new land shall result in the provision of a variety of housing types which shall continue to accommodate the diverse makeup of the City’s demographic profile, and meet the housing needs identified in the Housing Element. This shall be accomplished through the implementation of policies under Objective B-2 of the Housing Element. Not applicable Meets intent of standard X Does not meet intent H. The City shall consider the effect that the proposal will have on the stability of nearby neighborhoods. Factors such as noise, odors, dust, traffic volumes and circulation patterns shall be reviewed in terms of their potential to negatively impact the safety, habitability and stability of residential areas. If it is determined that a proposed development will result in a degradation of any neighborhood, the project shall be modified accordingly or denied. Not applicable Meets intent of standard X Does not meet intent I. Development shall not be approved if traffic associated with such development would create a new high accident location, or exacerbate an existing situation causing it to become a high accident location, without such development taking actions to remedy the accident situation. Not applicable Meets intent of standard X Does not meet intent J. Tot lots and recreational areas, serving children from toddler to teens, shall be a feature of all new housing developments as part of the design to accommodate households having a range of ages. This requirement may be waived or modified for residential developments located in the downtown area, and for infill projects having fewer than 25 units. Not applicable X Meets intent of standard Does not meet intent MEMORANDUM TO: Mayor and City Commissioners FROM: Tracie M. Lutchmansingh, P.E., Assistant City Engineer Richard C. Hasko, P.E., Environmental Services Director THROUGH: David T. Harden, City Manager DATE: November 30, 2011 SUBJECT: AGENDA ITEM 8.B. -REGULAR COMMISSION MEETING OF DECEMBER 6, 2011 ACCEPTANCE OF A WATER UTILITY EASEMENT DEED/LINTON DELRAY, LLC ITEM BEFORE COMMISSION Acceptance of a Water Utility Easement with Linton Delray, LLC. for the adjacent development to be known as Franklin at Delray Beach which will be located at 1030 S. Federal Highway. BACKGROUND Franklin at Delray Beach will be located on the west side of S.E. 5th Avenue (South Federal Highway), north of Linton Boulevard and approximately two blocks south of S.E. 10th Street. Proposed improvements include connection to an existing water main on the adjacent property to the south to provide a looped system. The owner of the property south of Franklin at Delray, Linton Delray, LLC. has agreed to grant the City of Delray Beach an easement for the purpose of construction and maintenance of the required water main. RECOMMENDATION Staff recommends acceptance of the easement deed. MEMORANDUM TO: Mayor and City Commissioners FROM: Tracie M. Lutchmansingh, P.E., Assistant City Engineer Richard C. Hasko, P.E., Environmental Services Director THROUGH: David T. Harden, City Manager DATE: November 30, 2011 SUBJECT: AGENDA ITEM 8.C. -REGULAR COMMISSION MEETING OF DECEMBER 6, 2011 REQUEST FOR SIDEWALK DEFERRAL /1011 BUCIDA ROAD ITEM BEFORE COMMISSION The item before Commission is consideration of a sidewalk deferral along Bucida Road for property located at 1011 Bucida Road. BACKGROUND The applicant submitted a building permit application to construct a new single family residence. Currently, there are no plans to install a sidewalk along Bucida Road. Sidewalk deferral was supported at the September 8th, 2011 DSMG meeting. RECOMMENDATION Staff recommends approval of the sidewalk deferral. MEMORANDUM TO: Mayor and City Commissioners FROM: Rafael Ballestero, Deputy Director of Construction Richard C. Hasko, P.E., Environmental Services Director THROUGH: David T. Harden, City Manager DATE: November 17, 2011 SUBJECT: AGENDA ITEM 8.D. -REGULAR COMMISSION MEETING OF DECEMBER 6, 2011 CONTRACT ADDITION (CHANGE ORDER NO. 1)/INTERCOUNTY ENGINEERING, INC. ITEM BEFORE COMMISSION This item is before the Commission to approve a Contract Addition (CO #1), in the total amount of $44,062.41, for a water main replacement on Island Drive and swale improvement for the Reclaimed Water System Area 11B Project #2010-074. BACKGROUND On March 1, 2011; Commission approved a Bid Award to Intercounty Engineering, Inc. in the amount of $1,408,505.93 for the Area 11B Reclaimed Water System Project. The scope of work involved continuing construction of the reclaimed transmission and distribution system on the barrier island, from Beach Drive north to George Bush Blvd and on several streets between Atlantic Avenue and Lowry Street. The project included installation of 10”, 6” and 4” PVC pipe throughout the residential neighborhoods. Contract Addition (CO #1) is for a water main replacement on Island Drive and swale improvements. During construction of the Area 11B Project, a portion of water main was upgraded on Island Drive, from Andrews Avenue west to the bridge. Connection to the existing pipe on the west side of the bridge was very challenging, as the existing pipe was in very poor condition. This segment of old pipe is approximately 320 LF, and connects to a segment of pipe which has already been previously upgraded. The cost of the water main replacement is $39,989.42. The swale improvement scope includes three (3) areas within the Area 11B project limits. These areas have ponding in the roadway, and the swale work is to improve the drainage in these locations. The cost for the swale work is $4,072.99. The costs are detailed on the attached Exhibit "A" to CO #1. A location map is also attached. FUNDING SOURCE Funding is available as follows: $39,989.42 442-5178-536-63.50 (Water/Sewer Renewal & Replacement Fund/ Improvements Other/Water Mains); after budget transfer. $ 4,072.99 448-5461-538-46.43 (Storm Water Utility Fund/drainage swales). $44,062.41 RECOMMENDATION Staff recommends approval of a Contract Addition (CO #1), in the total amount of $44,062.41, for a water main replacement on Island Drive and swale improvements; for the Reclaimed Water System Area 11B Project. MEMORANDUM TO: Mayor and City Commissioners FROM: Rafael Ballestero, Deputy Director of Construciton Richard C. Hasko, P.E., Director of Environmental Services THROUGH: David T. Harden, City Manager DATE: November 17, 2011 SUBJECT: AGENDA ITEM 8.E. -REGULAR COMMISSION MEETING OF DECEMBER 6, 2011 CONTRACT ADDITION (CHANGE ORDER NO. 3)/FOSTER MARINE CONTRACTORS, INC. ITEM BEFORE COMMISSION This item is before the Commission to approve a Contract Addition (CO #3) in the total amount of $55,674.20, to Foster Marine Contractors, Inc. for the construction of additional parking for two (2) additional properties; quantity overrun for additional water service relocations; and a contract time extension of twenty-three (23) days; for the SW 12 Ave/Auburn/SW 14 Ave. Project #2010-098. BACKGROUND On May 3, 2011, Commission approved a Contract Award to Foster Marine in the amount of $1,586,019.82 for construction of improvements on SW 12th Ave./Auburn Ave./SW 14th Ave. from SW 10th St. to W. Atlantic Ave. The scope includes new pavement, micro-surfacing, curbing, parallel parking, drainage (including swales), water main upgrades, landscaping, decorative street lights (SW 1st St to W. Atlantic Ave.) and paver crosswalks. On June 23, 2011, the City Manager approved an additional cost in the amount of $4,150.82 for electrical changes to provide LED street light fixtures in lieu of metal halide fixtures; to be paid out of the contract's Unforeseen Conditions Allowance. Then on July 29, 2011, the City Manager approved an additional cost in the amount of $6,301.46 for excavation and disposal of debris encountered during pipe installation; to be paid out of the Unforeseen Conditions Allowance. On September 6, 2011, Commission approved additional scope consisting of the relocation of ten (10) Sewer cleanouts between SW 3rd and 4th St. in the amount of $6,038.50; to be paid out of the contract's Unforeseen Conditions Allowance. On September 20, 2011, Commission approved additional scope in the total amount of $24,710.49 for relocation of twelve (12) sewer laterals outside of the proposed sidewalk area in the block from SW 2nd St. to SW 3rd St.; two (2) additional street light poles, due to the contractor not realizing that, when the revised electrical plan was issued changing the metal halide fixtures to LED fixtures, two additional poles were added; and the installation of 72 LF of concrete ribbon as requested by the CRA, for 242 SW 12th Ave. On October 4, 2011, Commission approved Change Order No. 1 (CO #1) for the relocation of an additional twenty-eight sewer cleanouts out of the area of the proposed sidewalk, in the additional amount of $16,907.80; and the cost of $1,400.00 for removal of two (2) existing inlets; the cost of the removal of the two (2) additional existing inlets which were not included in the contract price was paid from the contract's Unforeseen Conditions Allowance. On November 15, 2011, Commission approved Change Order No. 2 (CO #2) for an adjustment in contract quantities to Contract Line Items #21 and #24 as follows: #21 -Type S-III Pavement Overbuild; quantities were added for the roadway slope adjustment along SW 12th Ave. and an existing asphalt driveway which will require asphalt overbuild to match the proposed sidewalk grade. Line Item #24 -4' Wide concrete sidewalk; to properly transition a new driveway elevation to the existing walkway; and a contract time extension of seven (7) additional days. This Contract Addition (CO #3), in the total amount of $55,674.20, includes the cost for additional parking in the amount of $47,574.20; and the cost for the quantity overrun in the amount of $8,100.00. As part of the SW Area Redevelopment, the CRA, planned to provide on-street parallel parking and move the vehicular access to the rear of the properties. Originally, twenty-six (26) properties accepted the rear parking areas along the project corridor. As a result, the project was designed, approved and awarded based on 26 properties. After the contract was awarded, two (2) additional properties were added to the project. On June 21, 2011, Commission approved the design of the two (2) additional properties. On October 21, 2011, the design was completed. CO #3 scope includes the construction of the back-out parking, in the amount of $47,574.20, for properties located at 42 SW 12th Ave and 136/138 SW 14th Ave. This additional cost is being funded by the CRA. In addition, CO #3 includes a quantity overrun on Contract Line Item #76 Relocate Water Service and Replace Meter Box. The overrun in the amount of $8,100.00 (9 times unit price of $900), was discovered during construction. The actual number of water services to be relocated was greater than what was provided in the contract quantity; the contract quantity was underestimated. Also, the contractor is requesting a contract time extension of a total of twenty-three (23) additional days. Attached, please find the cost detailed on Exhibit "A" to CO #3, and a Location Map. FUNDING SOURCE Funding is available as follows: $47,574.20 334-3162-541-68.04 (General Construction Fund/Other Improvement/SW 12 Ave/Auburn/SW 14 Ave). $ 8,100.00 442-5178-536-49.33 (Water/Sewer Renewal & Replacement Fund/Other $55,674.20 Current Charges/OB/Water Service Relocations); after budget transfer. RECOMMENDATION Staff recommends approval of a Contract Addition (CO #3) in the total amount of $55,674.20, to Foster Marine Contractors, Inc. for construction of parking for two (2) additional properties; quantity overrun for additional water service relocations; and a contract time extension of twenty-three (23) days; for the SW 12 Ave/Auburn/SW 14 Ave Project. Q. SETTLEMENT AGREEMENT/BANK OF AMERICA CORPORATION (BAC): Approval to participate in a Settlement Agreement b etween Bank of America Corporation (BAC) and 28 State Attorneys General to resolve allegations that BAC engaged in violations of state and federal antitrus t laws. R. RESOLUTION NO. 54 -11/INTERNET SALES TAX LOOPHOLE: Approve Resolution No. 54 -11 supporting action by Florida ’s Governor and State Legislature to close the internet sales tax loophole. S. RESOLUTION NO. 57 -11/POLICE OFFICER AND FIREFIGHTER PENSION PLAN: Approve Resolution No. 57 -11 supporting Police Officer and Firefighter Pension Plan and disability presumption reforms to make the plans sustainable, sound and secure for current and future police offi cers and firefighters. T. RESOLUTION NO. 58 -11: Approve Resolution No. 58 -11 authorizing the execution and delivery of a Master Lease Agreement Equipment Schedule No. 03 in the amount of $825,000, and related instruments, and determini ng other matters in connection with this equipment lease. Schedule No. 03 is an am endment to an existing Master Lease agreement dated May 20, 2004 with SunTrust Le asing Corporation and will provide financing for the reimbursement of Public S afety hardware and software expenses totaling $825,000 at a rate of 1.855% for an 84 month term. Terms of the amendment provide for payments to be made in arrear s and a 1% penalty for pre - payment. U. SPECIAL EVENT REQUEST/ON THE AVE: Approve a special event request to endorse On the Ave to be held on January 19, 2011 f rom 6:30 p.m. to 10:30 p.m., to grant a temporary use permit per LDR Section 2.4.6(F) for the closure of Atlantic Avenue from Swinton to the west side of N.E./S.E. 6 th Avenue, Railroad Avenue from Atlantic north to 150 feet north of the east/west a lley, and to the alleys north and south of Atlantic on N.E./S.E. 1 st Avenue, N.E./S.E. 2 nd Avenue, S.E. 3 rd Avenue, and N.E./S.E. 4 th Avenue; to authorize staff support for security an d traffic control, EMS assistance and fire inspection, barricade set up an d removal, and trash removal and clean up. V. REVIEW OF APPEALABLE LAND DEVELOPMENT BOARD ACTIONS : Accept the actions and decisions made by the Land Developm ent Boards for the period November 14, 2011 through December 2, 2011 . W.AWARD OF BIDS AND CONTRACTS: 1.Contract award to Intercounty Engineering, Inc. in the amount of $16,610.00 for replacing large valves used at City ’s Water Treatment Plant, Filter #3. Funding is available from 442 -5178 -536 -64.90 (Water & Sewer Renewal & Replacement Fund: Machinery; Equipment/Other Machinery/Equipmen t). 2.Bid award to Lake Worth Monument in the amount of $2,100.00 for the purchase of a pink granite base for the Boy Scout sculpture. Funding is available from 115 - 1702 -579 -46.90 (Special Project Funds: Repair & Maintenance Servi ce ). 3.Purchase award to Systems Maintenance Services (SMS ) in the amount of $21,960.45 for twenty (20) processors and forty (40 ) memory module kits for server upgrades, including installation. Funding i s available from 334 -6111 -519 - 64.11 (General Construction Fund: General Governmen t Service/Machinery/Equipment/Computer Equipment). 9. REGULAR AGENDA: A.WAIVER REQUEST/27 -43 SOUTH SWINTON AVENUE: Consider a request to waive Land Development Regulations (LDR) Section 4.5.1(E)(3)(a)1.c., "Appurtenances, Fences and Walls", to permit the lo cation of a six foot (6 ’) high wall within the side street setback for 27 -43 South Swinton Avenue. (Quasi -Judicial Hearing ) B.WAIVER REQUESTS/104 S.E. 1 ST AVENUE: Consider waivers to Land Development Regulations (LDR) Section 4.6.9(F)(3)(d ),“Special Provisions ”, which requires a drive aisle width of 24 ’, by permitting a drive aisle width of 22 ’; and to Section 4.6.9(F)(3)(i), “Valet Parking ”, which requires a perimeter landscape buffer of 10 ’, by permitting a landscape buffer that varies from 1 ’6 ” to 6 ’4 ” for the attendant off -site parcel located at 104 S.E. 1 st Avenue. (Quasi -Judicial Hearing ) C.WAIVER REQUESTS/BOSTON ’S RESTAURANT - PHASE I: Consider approval of requests to waive Land Development Regulations (LDR) Section 4.6.16(H)(3), “New Multiple Family, Commercial and Industrial Deve lopment ”, subparagraph (i) to allow 62 sq. ft. where 75 sq. ft. of plantable a rea is required near the southwest corner of the site, and subparagraph (j) to allow n o landscape islands where terminal landscape islands are required in four locations, i n association with Phase I of Boston ’s Restaurant. (Quasi -Judicial Hearing ) D.WAIVER REQUESTS/BOSTON ’S RESTAURANT - PHASE II: Consider approval of three (3) waiver requests to Land Development Re gulations (LDR) Section 4.4.13 (F)(1)(a), “Height ”, Minimum Building Height to allow 14 ’ where 25 ’ is required, Land Development Regulations (LDR) Section 4.6.9(D)(3)(b), “Minimum Width ”, Minimum Drive Aisle Width to allow 22 ’ where 24 ’ is required and Land Development Regulations (LDR) Section 4.6.9(D)(3)(c )(1), “Stacking Distance ”, Minimum Stacking Distance to allow 27 ’ where 50 ’ is required, in association with Phase II of Boston ’s Restaurant which includes demolition and acquisit ion of adjacent hotel properties to provide additional on -site parking and new outdoor seating and dining areas. (Quasi -Judicial Hearing ) E.REVOCATION OF VALET PARKING LICENSE AGREEMENT WITH CUIGINI GRILLE: Consider approval to revoke the valet parking licen se agreement with Cuigini Grille for the valet parking queue located on the south side of t he 200 block of East Atlantic Avenue. 1.PARKING LICENSE AGREEMENT FOR VIC & ANGELO ’S: Consider approval of a parking license agreement with Vic & Angelo's to use the valet parking queue on the south side of the 200 block of East Atlantic Avenue, replacing Cugini Grille. F.ASSIGNMENT OF VALET PARKING QUEUE/BREATHE RESTAURAN T AND LOUNGE: Consider a request from Breathe Restaurant and Loun ge, located at 401 West Atlantic Avenue, to reestablish a parking vale t queue. G.APPOINTMENT TO THE GREEN IMPLEMENTATION ADVANCEMENT BOARD: Appoint one (1) regular member to the Green Imple mentation Advancement Board to serve an unexpired term ending July 31, 2012. Based upon the rotation system, the appointment will be made by Ma yor McDuffie (Seat# 5). H.APPOINTMENT TO THE EDUCATION BOARD: Appoint one (1) regular member to the Education Board to serve an unexpired term e nding July 31, 2013. Based upon the rotation system, the appointment will be made b y Mayor McDuffie (Seat #5). 10. PUBLIC HEARINGS: A.CONSOLIDATED ANNUAL PERFORMANCE AND APPRAISAL REPOR T (CAPER): Consider approval of the 2010 -2011 Consolidated Annual Performance and Evaluation Report required by the United States Department of Housing & Urban Development (HUD) for utilization of federal grant funds. B.ORDINANCE NO. 43 -11: Consider amending Ordinance No. 70 -89 which revises Section 1, “Designation ”, and Section 2, “Requirements of Designation ” of Ordinance 70 -89, and an amendment to Land Development Regulation s (LDR) Section 4.5.1(K) (2), “Designation of Historic Sites ”, to provide for the revised legal description of the Fontaine Fox Designation. 11. COMMENTS AND INQUIRIES ON NON-AGENDA ITEMS FROM THE PUBLIC- IMMEDIATELY FOLLOWING PUBLIC HEARINGS: A.City Manager's response to prior public comments and inquiries. B.From the Public. 12. FIRST READINGS: A.ORDINANCE NO. 44 -11: Consider an ordinance amending the Charter of the City of Delray Beach by amending Article III, “Legislative ”, Section 3.02, “City Commission: Composition, Eligibility, Election, and Terms ” and Section 3.09, “Term Limits ”; amending Article V, “Elections ”, Section 5.02, “Types of Elections ”; to provide for a change in the length of a term from a two (2) year term to a three (3) year term; providing for a referendum election to b e held on March 13, 2012. If passed, a public hearing will be held on January 3, 2012. B.ORDINANCE NO. 45 -11: Consider a city -initiated amendment to Land Development Regulations (LDR) Section 4.4.9, “General Commercial (GC) District ”, Subsection (G), “Supplemental District Regulations ”, Sub -subsection (3), “Four Corners Overlay District ”, to correct outdated references. If passed, a public hearing will be held on January 3, 2012. C.ORDINANCE NO. 46 -11: Consider an Ordinance amending Chapter 113, "Alcoh olic Beverages", Section 113.02, “Prohibition of Consumption or Possession of Open Containers of Alcoholic Beverages in Public Places ”. If passed, a public hearing will be held on January 3, 2012. 13. COMMENTS AND INQUIRIES ON NON-AGENDA ITEMS: A.City Manager B.City Attorney C.City Commission 11/15/11 NOVEMBER 15, 2011 A Regular Meeting of the City Commission of the City of Del ray Beach, Florida, was called to order by Mayor Nelson S. McDuffie in the C ommission Chambers at City Hall at 6:00 p.m., Tuesday, November 15, 2011. 1. Roll call showed: Present - Commissioner Tom Carney Commissioner Jay Alperin Commissioner Adam Frankel Commissioner Angeleta E. Gray Mayor Nelson S. McDuffie Absent - None Also present were - David T. Harden, City Manager Robert A. Barcinski, Assistant City Manager Brian Shutt, City Attorney Chevelle D. Nubin, City Clerk 2. The opening prayer was delivered by Rabbi Greg Kanter with T emple Sinai. 3. The Pledge of Allegiance to the flag of the United States of A merica was given. 4. AGENDA APPROVAL. Mayor McDuffie stated Item 9.B., Consideration of an Appeal/Historic Preservation Board’s Decision/Class III Site Plan Modification and Item 9.B.1 ., Consideration of an Appeal of the Historic Preservation Board’s Decision on a Waiver Request , are being postponed at the request of the applicant. Dr. Alperin moved to approve the Agenda as amended, seconded by Mrs. Gray. Upon roll call the Commission voted as follows: Dr. Alpe rin – Yes; Mr. Frankel – Yes; Mrs. Gray – Yes; Mayor McDuffie – Yes; Mr. Carney – Y es. Said motion passed with a 5 to 0 vote 5. APPROVAL OF MINUTES: Mr. Frankel moved to approve the Minutes of the Regular Meeting o f November 1, 2011, seconded by Mrs. Gray. Upon roll call the Commission voted as follows: Mr. Frankel – Yes; Mrs. Gray – Yes; Mayor McDuffie – Yes; Mr. Carney – Yes; Dr. Alperin – Yes. Said motion passed with a 5 to 0 vote. 2 11/15/11 6. PROCLAMATIONS: 6.A. America Recycles Day – November 15, 2011 Mayor McDuffie read and presented a proclamation hereby procla iming November 15, 2011 as America Recycles Day in the City of Delra y Beach. Jennifer Buce, Litter Prevention Coordinator and Rich Reade, Sustainability O fficer came forward to accept the proclamation and gave a few brief comments. 6.B. St. Paul African Methodist Episcopal Church 114 th Anniversary Mayor McDuffie read and presented a proclamation hereby rec ognizing St. Paul African Methodist Episcopal Church on its 114 Anniversary i n the City of Delray Beach. Pastor LaTanya Floyd came forward to accep t the proclamation and gave a few brief comments. 7. PRESENTATIONS: 7.A. Florida Association of City Clerks (FACC) Second Vice Presi dent – Lori McWilliams presentation to City Clerk, Chevelle D. Nubin Lori McWilliams, Village Clerk Tequesta, congratulated Cheve lle D. Nubin, with her Master Municipal Clerk (MMC) designation and pr esented her with an MMC pen and her certification plaque. Ms. McWilliams state d Ms. Nubin embarked on this journey approximately seven (7) years ago after receiving her Certified Municipal Clerk (CMC) designation and this has provided her with the tools nece ssary to improve the efficiency and effectiveness of our local municipal governme nts. Ms. McWilliams stated during her voyage Ms. Nubin has served as the Palm B each County Municipal Clerks Association President and now serves as the Southeast Dist rict Director for the Florida Association of City Clerks. Ms. McWilliams stated i t is her hope that she will consider a future run for the Presidency of the State Association. Chevelle D. Nubin, MMC, came forward to accept her MMC pen an d certification plaque and thanked the City Manager for allowing her to continue to pursue her education. Ms. Nubin also thanked Doug Smith, Assistant City Manager and stated he wrote a sponsorship letter when she became Southeast Distric t Director to be able to have that time out of the office to go and serve other cities. Ms . Nubin stated Clerks are trained on a wide range of topics as far as governmental accounti ng, ethics, communication, how to build a relationship with local reporters, and how to interact with elected officials. Ms. Nubin thanked the Department Heads and th e great bosses that she has had with Lula Butler being her first boss and mentor. Ms. Nu bin stated she is thankful for the people she serves on a day-to-day basis and is gra teful for the City Clerk staff for giving her tremendous support. 3 11/15/11 8. CONSENT AGENDA: City Manager Recommends Approval. 8.A. RESOLUTION NO. 53-11: ABANDONMENT OF UTILITY EASEMENT; MIDTOWN DELRAY: Approve Resolution No. 53-11 to abandon a 12' wide utility easement located within the plat for Midtown Delra y property (formerly Blood’s Grove Orchard) for a water main formerly serving the Hammock Reserve development to the south. The caption of Resolution No. 53-11 is as follows: A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, VACATING AND ABANDONING A UTILITY EASEMENT DEDICATED BY AN EASEMENT DEED RECORDED IN O.R.B. 9764, PAGE 1355, AS MORE FULLY DESCRIBED IN EXHIBIT “A”. (The official copy of Resolution No. 53-11 is on file in the City Clerk’s office.) 8.B. CHANGE ORDER NO. 2/FOSTER MARINE CONTRACTORS, INC.: Approve Change Order No. 2 to Foster Marine Contractors, Inc. in the amount of $13,647.50 for an adjustment in contract quantities due to roadway slope adjus tment to facilitate drainage; and overbuild to an existing asphalt dri veway to match the new sidewalk grade; and a contract time extension of seven (7) day s; for the S.W. 12th Avenue/Auburn/S.W. 14th Avenue Project. Funding is available from 448-5461-538- 68.04 (Storm Water Utility Fund: Other Improvement/S.W. 12 th Avenue/Auburn/S.W. 14 th Avenue). 8.C. CONTRACT CLOSEOUT (CHANGE ORDER NO. 3/FINAL)/BRANG CONSTRUCTION, INC.: Approve a Contract Closeout (C.O. No. 3/Final) with Brang Construction, Inc. in the amount of an $18,556.10 decrease and final payment in the amount of $62,142.20; which includes $18,123.08 for additional asphalt overlay required to complete the Martin Luther King Jr. Drive Bea utification Project. Funding is available from 380-4150-572-63.28 (2004 G.O. Bond: Improvements Other/Pompey Park/Community Center), 334-4141-572-68.57 (General Construction Fund: Other Improvement/Cultural Loop/MLK Drive Phase 1) and 441-5181-536-65.96 (Water and Sewer Fund: Other Improvements/Reclaimed Water Transmis sion). 8.D. TRI-PARTY AGREEMENT: FLORIDA DEPARTMENT OF TRANSPORTATION (FDOT)/CSX TRANSPORTATION, INC. (CSXT)/CITY OF DELRAY BEACH: Approve a Tri-Party Agreement between the Florida Departm ent of Transportation, CSX Transportation, Inc. (CSXT) and the City of D elray Beach in the amount of $203,633.00 to reimburse CSXT for reconstruction of the S.W. 10 th Street railroad crossing. Funding is available from 334-3162-541-46.90 (General Const ruction Fund: Repair & Maintenance Services/Other Repair/Maintenance Costs). 4 11/15/11 8.E. IMPLEMENTATION OF A VALET PARKING SERVICE IN THE OLD SCHOOL SQUARE GARAGE: Approve implementation of a valet parking service in the Old School Square Parking Garage. 8.F. HOUSING REHABILITATION GRANT/CONTRACT AWARD: Re-award one (1) Housing Rehabilitation contract in the amount of $28,839.31 for 316 N.W. 6 th Avenue through the Community Development Block Grant (CDBG) and Residential Construction Mitigation Program (RCMP) t o Built Solid Construction the second lowest responsive bidder, due to the low bidder's withdrawal request. Funding is available from 118-1963-554-49.19 (Neighborhood Services: Ot her Current Charges/Housing Rehabilitation) and 118-1936-554-49.19 (Neighborhood Services: Other Current Charges/Housing Rehabilitation). 8.G. LANDSCAPE MAINTENANCE AGREEMENT/921 SOUTH OCEAN BOULEVARD, LLC: Approve Landscape Maintenance Agreement with 921 South Ocean Boulevard, LLC to provide for the installation of new shru bs and groundcovers within the unpaved right-of-way in front of the proper ty located at 921 South Ocean Boulevard. 8.H. LICENSE AGREEMENT/ZGS DELRAY, LLC.: Approve a License Agreement with ZGS Delray, LLC. for use of public parking spa ces adjacent to N.E. 3rd Avenue for a limited period of time. 8.I. REQUEST TO INSTALL BUS SHELTER ART/PUBLIC ART ADVISORY BOARD: Approve a request to install art work in three (3) bus shelters located at: 1) Carver Middle School at the intersection of Barwick and West Atlantic; 2) N.E. 1 st Street in the 200 Block and 3) Linton Boulevard just east of Militar y Trail on the south side. Funding is available from 115-1702-579-31.90 (Special Projects Fund (Public Art): Professional Services/Other Professional Services). 8.J. VOTE PROCESSING EQUIPMENT USE AND ELECTIONS SERVICES AGREEMENT: Approve a Vote Processing Equipment Use and Election Services Agreement between the Palm Beach County Supervisor of Elections and the City for conducting municipal elections. 8.K. RESOLUTION NO. 52-11: Approve Resolution No. 52-11 assessing costs for abatement action required to remove nuisances on twelve (12) properties throughout the City of Delray Beach. The caption of Resolution No. 52-11 is as follows: A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, PURSUANT TO CHAPTER 100 OF THE CODE OF ORDINANCES OF THE CITY OF DELRAY BEACH, ASSESSING COSTS FOR ABATING NUISANCES UPON CERTAIN LAND(S) LOCATED WITHIN THE CITY OF DELRAY BEACH AND PROVIDING THAT A NOTICE OF LIEN 5 11/15/11 SHALL ACCOMPANY THE NOTICE OF ASSESSMENT; SETTING OUT ACTUAL COSTS INCURRED BY THE CITY TO ACCOMPLISH SUCH ABATEMENT AND LEVYING THE COST OF SUCH ABATEMENT OF NUISANCES; PROVIDING FOR AN EFFECTIVE DATE AND FOR A DUE DATE AND INTEREST ON ASSESSMENTS; PROVIDING FOR THE RECORDING OF THIS RESOLUTION, AND DECLARING SAID LEVY TO BE A LIEN UPON THE SUBJECT PROPERTY FOR UNPAID ASSESSMENTS. (The official copy of Resolution No. 52-11 is on file in the City Clerk’s office.) 8.L. SPECIAL EVENT REQUEST/14 TH ANNUAL FIRST NIGHT 2012: Approve a special event request to endorse the 14 th Annual First Night 2012 event on December 31, 2011 from 4:00 p.m. to midnight, grant a temporary use per mit per LDR Section 2.4.6(F) for the use of City rights-of-way and facil ities as requested, and authorize generator use and staff support for traffic control and security, site cleanup and trash removal, barricade set up and removal, banner hanging, s ignage construction and installation, and EMS services. 8.M. SPECIAL EVENT REQUEST/SAVOR THE AVENUE: Approve and endorse Savor the Avenue, sponsored by Boca Raton and Delray Beach Ma gazine and supported by the Downtown Development Authority, to be held on March 29, 2012 from 5:30 p.m. to 8:30 p.m.; grant a temporary use permit per LDR Secti on 2.4.6(F) for closure and use of Atlantic Avenue from Swinton to the west side of N E/SE 5th Avenue from 2 p.m. until 10:00 p.m.; and authorize staff support for traffic cont rol and security, EMS assistance, Fire inspection, barricading, trash boxes, use of a City-owned portable generator and banner hanging with banners to be hung no sooner than 14 days pr ior to the event; contingent upon receipt of a certificate of event and alcohol liability insurance and an executed hold harmless agreement by March 15, 2012. 8.N. REVIEW OF APPEALABLE LAND DEVELOPMENT BOARD ACTIONS: Accept the actions and decisions made by the Land Development Boa rds for the period October 31, 2011 through November 11, 2011. 8.O. AWARD OF BIDS AND CONTRACTS: 1. Contract award to Murray Logan Construction, Inc. in the amount of $16,992.00 for proposed drainage work on Lewis Cove. Funding is available from 448-5461-538-46.90 (Storm Water Utility Fund: Repair and Maintenance Service/Other Repair/Maintenance Cost). 2. Purchase award to Intercounty Engineering, Inc. in the amount of $50,000.00 for the Sanitary Sewer Manhole Rehabilitation 6 11/15/11 Program. Funding is available from 442-5178-536-63.82 (Water & Sewer Renewal & Replacement Fund: Improvements Other/Sanitary Sewer MH Rehab). 3. Purchase award to PVS Technologies, Inc. in the amount of $259,000.00 for purchase and delivery of liquid ferric chloride “as needed”. Funding is available from 441-5122-536-52.21 (Water and Sewer Fund: Operating Supplies/Chemicals). Mr. Frankel moved to approve the Consent Agenda as amended, seconded by Mrs. Gray. Upon roll call the Commission voted as follows: M rs. Gray – Yes; Mayor McDuffie – Yes; Mr. Carney – Yes; Dr. Alperin – Yes; Mr. Fra nkel – Yes. Said motion passed with a 5 to 0 vote. 9. REGULAR AGENDA: 9.A. PROPOSAL/DELRAY BEACH PRESERVATION TRUST/CENTENNIAL TIME CAPSULE: Consider approval of a proposal from the Delray Beach Preservation Trust to install a 100-Year Time Ca psule in the City Hall lobby in recognition of the Delray Beach Centennial. The City Manager stated this is a proposal from the Delr ay Beach Preservation Trust to install a 100-Year Time Capsule in the C ity Hall lobby area in recognition of the Delray and staff would like permission from t he City Commission to do that. Dr. Alperin moved to approve the proposal from the Delray Beach Preservation Trust to install a 100-Year Time Capsule in the Ci ty Hall lobby in recognition of the Delray Beach Centennial, seconded by Mr. Frankel . Upon roll call the Commission voted as follows: Mayor McDuffie – Yes; Mr. Carne y – Yes; Dr. Alperin – Yes; Mr. Frankel – Yes; Mrs. Gray – Yes. Said motion passed with a 5 to 0 vote. 9.B. THIS ITEM HAS BEEN POSTPONED DUE TO THE REQUEST OF THE APPLICANT. 9.B.1. THIS ITEM HAS BEEN POSTPONED DUE TO THE REQUEST OF THE APPLICANT. 9.C. SPECIAL EVENT REQUEST/FASHION ON THE AVENUE: Consider approval of a special event request for Fashion on the Avenue , sponsored by Luxe Partners, Inc. and supported by the Downtown Develo pment Authority, to be held on January 26, 2012, from 8:00 p.m. to 9:30 p.m.; granting of a temporary use permit per LDR Section 2.4.6(F) for closure and use of Atlantic Avenue from Swinton to the west side of N.E./S.E. 5th Avenue from 4:00 p.m. unti l 11:00 p.m. and use of the Hands lot for crew and models; and authorization of staff support for traffic control and security, barricading, use of a City-owned po rtable generator 7 11/15/11 and banner hanging; contingent upon receipt of a certificate of liability insurance and an executed hold harmless agreement by January 12, 2012. Robert A. Barcinski, Assistant City Manager, stated the Commi ssion has been requested to consider approval of a Special Event permit f or Fashion on the Avenue proposed to be held January 26, 2012 from 8:00-9:30 p.m. sponsored by Luxe Par tners, Inc. and supported by the Downtown Development Authority (DDA). M r. Barcinski stated staff also requests that the Commission approve a tempora ry use permit for the closure of Atlantic Avenue from Swinton Avenue to the east side of NE/SE 5 th Avenue from 4:00 p.m. until 11:00 p.m., use of the Hand’s lot for crew and models and to provide staff assistance for traffic control and security, barricadi ng, banner hanging and use of a portable generator. The estimated overtime cost for this eve nt is $3,050.00 and barricade rental is $150.00 for a total cost of $3,200.00. The event producer is resp onsible for paying 100% of all City costs per Special Event Policies a nd Procedures. Staff recommends approval contingent upon the receipt of a Certifica te of Liability Insurance by January 12, 2012 as well as a Hold Harmless Agreement by January 12, 2012. Dr. Alperin inquired about how many closings of the Avenue the Commission was going to allow per year. Mr. Barcinski stated the City used to allow eight maximum and then changes were made to the policies and proc edures. Mr. Barcinski stated there are only so many major events at the te nnis center that you can have in a month; you cannot have an intermediate event on top of a major event. Mr. Barcinski stated it limits the City on the intermediate eve nts to two a week. He stated the City may have to start looking at limits and the only free months are June, July, August, and September to some degree. Dr. Alperin asked if the overtime costs are calculated acc urately. Mr. Barcinski stated each employee calculates their base time times overtime plus the fringe benefit requirement and they all figure in the multiplier with the exact overtime based on who works. Mr. Barcinski stated each department sends a report at the end of the event to his office; they audit and verify and then send it down to the Fina nce Department for the billing to the event producer. Mr. Barcinski stated this is to help the reta il. Marjorie Ferrer, Executive Director of the Downtown Development Authority, stated the retailers are very excited about this e vent and introduced the following individual who is a new merchant in Pineapple Grove Way. Loren Malice (sp?), stated she came to Delray Beach by way of Connecticut and then New York where for 18 years she was the Direct or of Special Events and Communications under Governor Patacki for the Economic Developm ent Office, where she produced such events such as Fashion Week. Mr. Frankel moved to approve the Special Event Request for Fashion on the Avenue to be held on January 26, 2012 from 8:00 p.m. to 9:30 p.m., seconded by Mrs. Gray. Upon roll call the Commission voted as follows: Mr. Carney – Yes; Dr. 8 11/15/11 Alperin – Yes; Mr. Frankel – Yes; Mrs. Gray – Yes; Mayor Mc Duffie – Yes. Said motion passed with a 5 to 0 vote. 9.D. APPOINTMENT TO THE GREEN IMPLEMENTATION ADVANCEMENT BOARD: Appoint one (1) regular member to the Green Implementation Advancement Board to serve an unexpired term endin g July 31, 2012. Based upon the rotation system, the appointment will be made by Commissioner Gray (Seat# 4). Mrs. Gray moved to appoint Isabelle Alarie as a regular mem ber to the Green Implementation Advancement Board to serve an unexpired term e nding July 31, 2012, seconded by Mr. Carney. Upon roll call the Commission voted as f ollows: Dr. Alperin – Yes; Mr. Frankel – Yes; Mrs. Gray – Yes; Mayor Mc Duffie – Yes; Mr. Carney – Yes. Said motion passed with a 5 to 0 vote. 9.E. APPOINTMENT TO THE EDUCATION BOARD: Appoint one (1) regular member to the Education Board to serve an unexpired term ending July 31, 2012. Based upon the rotation system, the appointment will be made by Commissioner Gray (Seat #4). Mrs. Gray moved to appoint Angela Burns as a regular member t o the Education Board to serve an unexpired term ending July 31, 2012, seconded b y Mr. Frankel. Upon roll call the Commission voted as follows: Mr. Fra nkel – Yes; Mrs. Gray – Yes; Mayor McDuffie – Yes; Mr. Carney – Yes; Dr. Alperin – Yes. Said motion passed with a 5 to 0 vote. At this point, the time being 6:28 p.m., the Commission moved to Item 11, City Manager’s response to Prior Public Comments and Inqui ries from the City Manager and the Public. 11.A. City Manager’s response to prior public comments and inquiries. The City Manager stated at the last meeting Ms. Jolene M cClure the owner of Off the Avenue expressed safety concerns regarding per sons loitering, drinking, and potential drug use and sales in the area of Starbucks Coffee S hop at S.E. 5 th Avenue and Atlantic Avenue. He stated Assistant Chief Goldman met with Mr. Knoblock at “Off the Avenue” and also communicated with Ms. McClure via telephone. The City Manager stated thus far the Police Department has conducted num erous extra patrols in the area and increased the presence of Clean and Safe Officer s. Additionally, Community Patrol has increased their activity in the area and sp ot cars have been deployed. Assistant Chief Goldman and Captain Mitchell met wit h the Starbucks property owner and manager to get buy-in from the community pa rtners and explore C.P.T.E.D (Crime Prevention Through Environmental Design) opportunities . The City Manager stated some of the issues that were addressed were t he flower pot that was outside Starbucks and was used as a place to stand and smoke. The f lower pot belongs to the CRA and will be removed in the coming days. A bicycle rac k will take its place and 9 11/15/11 should take up some space in the area so the crowds will not be able to congregate there. In addition, the City Manager stated there is a small alleywa y between Starbucks and “Off the Avenue” that is being used for various inappropriate activities and in the coming days the Police Department will get with essential personne l and have the area approved for a fence to stop this type of behavior. The Police Departm ent is also in the process of obtaining “No Trespassing Signs” for the area to enforce the s ubjects who are not patrons and malinger around the business during non-business hours. During their conve rsations, staff was made aware of another issue at Big Al’s Steak re staurant with the use of that bathroom and this is also being addressed. The initial review o f Ms. McClure’s complaint was solidified that there are quality of life matt ers in the immediate area that warrant the City’s attention. The City Manager stated in refe rence to calls for services at Off the Avenue the Police Department is showing seven calls fr om Off the Avenue since July. The Police Department is addressing the lack of presence issue; however, last month Clean and Safe Officers conducted over 350 extra patrols in t he Clean and Safe area and also had 32 man hours on the bicycle and 20 man hours on the T3. Als o, the City Manager stated the owners of the Hartman House were concer ned about issues around that establishment. On November 9, 2011, Assistant Chief Goldma n and Jennifer Costello attended a community meeting at the Hartman House and t he topics of discussion were crime in the area, crime prevention, and transiti onal housing. The meeting was filled with questions and Assistant Chief Goldman advis ed that it went well and he received a follow-up email from Ms. Goldstein thanking him f or his time and comments. The next step will be to have Sergeant Nicole Guerr iero provide crime prevention tips to the neighborhood. The Police Department will work on increasing both volunteer and police patrols in the area. Ms. Costello is worki ng with other city members and coordinating another meeting to address concerns on housing and code issues. Secondly, the City Manager stated regarding skateboarding com ments that were brought up by Vice Mayor Gray it should be noted that the Police Department has increased patrols and have spoken to some subjects who frequent the area. The City Manager stated officers will continue to monitor and address issues as they arise. The City Manager stated Dr. Kirson had expressed concerns about response times and staff looked at average response times in October compared to June. In June, the average response time for priority one calls was five minutes and 34 seconds; in October it was 4 minutes and 55 seconds; unit reaction time whi ch is the time from the first dispatch to first arrival in June was 3 minutes 18 seconds a nd October was 3 minutes 16 seconds. The City Manager stated the call that Ms. McClure w as concerned about was classified as a priority 3 call and the average response time in October for priority 3 calls was 23 minutes and 29 seconds. He stated from April through October the average response time for a class 3 call was 22 minutes and 26 seconds. Th e calls are held in dispatch until someone is free and the unit reaction time from the time of the first dispatch to first arrival over a three month period was 5 minutes and 13 seconds. He stated if officers are busy on other things then priority 3 calls fall to the bottom of the list. Lastly, the City Manager stated at the last meeting Mr. C ottone made some comments about the fees for various Parks and Recreation pr ograms. The City 10 11/15/11 Manager stated Mr. Cottone is a member of the Financial Review Board and the Board has been pressing the City to recover a larger part of the cos t for such programs. Therefore, the City Manager stated his comments and the previous comments from the Board are in opposition to each other. The City Manager stated t he Board needs to decide what they want the City to do unless Mr. Cottone is spea king solely for himself and not really to the Board. 11.B. From the Public. 11.B.1. Mike Malone, 64 S.E. 5 th Avenue, Delray Beach, FL 33444, thanked the City Manager and staff for the quick response to what he just re ported on for those areas in downtown Delray Beach. 11.B.2. Gladys Whigham, speaking on behalf of Palm Beach County Commissioner Priscilla Taylor, congratulated Chevelle Nubin on this prestigious achievement that she has accomplished in regards to obtaining her MMC. 11.B.3. Dr. Victor Kirson, D.D.S., 2050 Alta Meadows Lane #2110, Delray Beach, FL 33444 (President of the Board of Directors of Tierra Verde at Delray Beach and Member of the Alliance), thanked the City Manager for the accurate statistics. He stated he attended the Hartman House and ther e was about 30-35 residents. Dr. Kirson stated he was astounded by the fact that a lot of them have been robbed. Dr. Kirson stated Assistant Chief Goldman went over the facts. The m embers of the halfway houses the drug addicts and drug dealers apparently have a lot of r ights and we cannot violate their rights. Dr. Kirson suggested that we may want to b ust in, catch them with the drugs, and send them to jail. Dr. Kirson stated if a drug addict is picked up with an illegal substance and arrested, by the time he gets to the Count y, the charge has dropped to drug paraphernalia and by the time the hearing is supposed to happen it has dropped completely. Dr. Kirson stated if they pick up a drug dealer it does not matter what happens because in two hours they will have another drug dealer at that gas station on the corner. He stated the Police Department does everything they c an but they are behind the eight ball. Dr. Kirson stated about eight years ago Hazleton, Pe nnsylvania dealt with the problem and arrested everyone from the ship that unloaded the drugs down to the mothe rs that were selling the drugs and by getting the whole chain they were able to solve the problem. Dr. Kirson asked what this would take for Delray Beac h to do something like this. He stated if we get rid of the drugs the halfway houses will disappear in Delray Beach. Mayor McDuffie stated the State Attorney’s Office has Quarterly Advisory Council Meetings and there are a nominal amount of people in attendance. Mayor McDuffie stated at the City level many things have be en done to try to curb the issues that we have with sober houses and have also gone to Washington, D.C. with so ber house issues and pill mill issues. Mayor McDuffie stated he al so met with Sheriff Bradshaw on those issues as well. Mayor McDuffie encouraged ev eryone to contact the Palm Beach County State Delegation and with the Congressional Dele gation and let them know what is going on. 11 11/15/11 11.B.4. Christina Morrison, 2809 Florida Boulevard #207, Delray Beach, FL 33483, stated the Economic Council is working on a new resolution to close the loophole on internet sales tax. Ms. Morrison stated they have finished their initial process of the 6 pillars in Palm Beach County. She stated the vision of the Economic Council and the Florida Chamber is the year 2030. Ms. Morrison stated by the year 2030 t hey want to be a State with high paying jobs, a State with global competitiveness, and a State of vibrant communities all like Delray Beach. Ms. Morrison stated the 6 p illars are talent, supply, and education, innovation and economic development, quality of life in quality places, infrastructure and growth leadership, civic and governance, and business climate and competitiveness. She stated starting at the city level they are looking to create new leaders to carry us forward to the new economic sense of the future. At this point, the time being 6:47 p.m, the Commission moved to Item 12, First Readings. 12. FIRST READINGS: 12.A. ORDINANCE NO. 43-11: Consider amending Ordinance No. 70-89 which revises Section 1, “Designation”, and Section 2, “Requirements of D esignation” of Ordinance 70-89, and an amendment to Land Development Regulations (LDR) Section 4.5.1(K)(2), “Designation of Historic Sites”, to provide for a revis ed legal description of the Fontaine Fox Designation. If passed, a public hearing will be held on December 6, 2011. The caption of Ordinance No. 43-11 is as follows: AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AMENDING ORDINANCE NO. 70-89 THAT PROVIDED FOR THE HISTORIC DESIGNATION OF THE FONTAINE FOX HOUSE AND PROPERTY; AMENDING THE LAND DEVELOPMENT REGULATIONS OF THE CODE OF ORDINANCES OF THE CITY OF DELRAY BEACH, FLORIDA, BY AMENDING ARTICLE 4.5, “OVERLAY AND ENVIRONMENTAL MANAGEMENT DISTRICTS”, SECTION 4.5.1, “HISTORIC PRESERVATION SITES AND DISTRICTS”, SUBSECTION (K), “DESIGNATION OF HISTORIC SITES”, PROVIDING A SAVING CLAUSE, A GENERAL REPEALER CLAUSE, AND AN EFFECTIVE DATE. (The official copy of Ordinance No. 43-11 is on file in the City Clerk’s office.) 12 11/15/11 The City Attorney read the caption of the ordinance. Paul Dorling, AICP, Director of Planning and Zoning, stated this ordinance amends the legal description and development restrictions contained in Ordinance 70-89. Mr. Dorling stated this is the current Fontaine Fox de signation. The new plat will reconfigure the size of Lot 3, and shift the e xisting north fifty feet (50’) onto Lots 1 and 2 of Ocean Apple Estates, Plat II are not locally designated parcels, the historic designation of their new southern fifty feet (50’) will not be removed, and the overall boundary of the Fontaine Fox House designation will not be altered. At its meeting of November 2, 2011, the Historic Preservation Boar d (HPB) recommended approval with a 6 to 0 vote. Dr. Alperin moved to approve Ordinance No. 43-11 on FIRST Reading, seconded by Mrs. Gray. Upon roll call the Commission voted as follow s: Mrs. Gray – Yes; Mayor McDuffie – Yes; Mr. Carney – Yes; Dr. Alperin – Yes. Said motion passed with a 5 to 0 vote. At this point, 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 The City Manager stated he mentioned about what the Police D epartment is doing at the S.W. 5 th Avenue Park and they also plan to install a standard “No Skateboarding” sign there. The City Manager stated when he was in Fort Collins he saw something that the City is going to use in some of the downtown are a. He stated it is actually painted onto the sidewalk and is a sign that says “Dism ounts On” with a picture of a bicycle and a skateboard with a circle with a line t hrough it. The City Manager stated people do not realize that they are not supposed to skateb oard or bicycle on the sidewalks downtown. Secondly, the City Manager stated regarding the signs for t he parking garage the City has the two large very visible monument signs at the intersection of N.W. 1 st Street and 2 nd Avenue and on N.E. 1 st Street and N.E. 1 st Avenue at the Old School Square garage entrance. The City has contacted Palm Beach County seeking permission to install directional signage on the traffic signal cables at Swinton Avenue and Atlantic Avenue and Swinton Avenue and N.E. 1 st Street. The County denied a request to a limited capacity of the cables and poles to support the addit ional weight of the signage. The City Manager stated the only remaining option is to instal l additional street signage strategically located along primary routes into the downtown are a. The City will identify those locations and install appropriate signage for both the Old Sc hool Square and Federspiel garages. 13 11/15/11 The City Manager stated he previously sent out by email t he fees the City has received from the in-lieu program in each zone. He stated pri or to the garages opening, the City sold 121 spaces. The Federspiel garage opene d in June 2007 and since then we have sold 82 spaces for a total of 203 spaces altogether that we have sold. The City Manager stated with regard to a concern about drainage i ssues being created by new construction, the required submittals have b een largely limited to calculations verifying in compliance with water quality parameter s. The Master Drainage Plan established design criteria in three categories: (1) ne w subdivisions west of I-95, (2) new subdivisions east of I-95, and (3) within existing built up are as or infill development. The City Manager stated some of the criteria has changed sinc e the Master Plan was developed specifically related to minimum finished floor elevati ons in the eastern area of the city particularly on the barrier island. As a result, w e have had some flooding issues. The City Manager stated there are suggestive modifications to de sign criteria. Off-site discharge requirements based on “pre” versus “post” construction c alculations requiring on-site retention of the difference and some criteria on site gra ding no net decrease in the existing watershed surface storage volume where the average finis h site grade exceeds 12 inches above the centerline of the existing roadway. The City p lans to schedule some design criteria meetings for local developers, builders, eng ineers, planners and architects to get their input to possible changes in the land development regulations t o deal with that issue. 13.B. City Attorney The City Attorney had no comments or inquiries on non-agenda items. 13.C. City Commission 13.C.1. Dr. Alperin Dr. Alperin asked for the total number of spaces in the two garages. The City Manager stated Old School Square is over 500. Mayor McDuff ie stated there are a little over 700 spaces. Dr. Alperin stated we have sold about 200 s o it is a significant amount that people are paying back for the garage investment. Dr. Alperin inquired about the additional dome lights being up and stated the garage is much better lit than it was before. Secondly, Dr. Alperin stated he attended a CRA meeting l ast week and was disturbed by a vote they had to delay a decision they had alrea dy made with an agreement with the Chamber of Commerce. He stated the CRA ba cked out of their vote and reneged on an agreement. 14 11/15/11 13.C.2. Mrs. Gray Mrs. Gray stated she attended the National League of Cities Conference in Phoenix, Arizona last week and it was a great conference focusing on economic development. Secondly, Mrs. Gray stated the CRA will be hosting a meeti ng tonight at 5:30 at the Delray Beach Public Library concerning the West Atlantic Avenue proposed hotel. Lastly, Mrs. Gray stated Congressman Hastings’ office ask ed her to sit on their Military Academy Interview Committee and she will be interviewing 11 young adults for the West Point Academy. 13.C.4. Mr. Frankel Mr. Frankel stated he attended the Chris Evert Event over the we ekend with Deputy Vice Mayor Tom Carney. The event raised $800,000.00 w hich is $100,000.00 more than last year. Mr. Frankel stated this event is great for the charities but it is also great for the city. Secondly, Mr. Frankel stated on November 11, 2011 there were eight weddings on the beach. At this point, the time being 7:00 p.m., the Commission moved to the dul y advertised Public Hearings portion of the Agenda. 10. PUBLIC HEARINGS: 10.A. RESOLUTION NO. 49-11: Consider approval of Resolution No. 49-11 allowing for a fire assessment fee, if adopted, to be collec ted for a portion of fiscal year 2012, and to be placed on the property tax bill for the fiscal ye ar beginning October 1, 2012. The caption of Resolution No. 49-11 is as follows: A RESOLUTION OF THE CITY OF DELRAY BEACH, FLORIDA ELECTING TO USE THE UNIFORM METHOD OF COLLECTING NON-AD VALOREM ASSESSMENTS LEVIED WITHIN THE INCORPORATED AREA OF THE CITY STARTING FISCAL YEAR 2013 AND COLLECTING NON-AD VALOREM ASSESSMENT FOR A PORTION OF FISCAL YEAR 2012 UNDER FLORIDA STATUTE SECTION 170.201; STATING A NEED FOR SUCH LEVY; PROVIDING FOR THE MAILING OF THIS RESOLUTION; AND PROVIDING FOR AN 15 11/15/11 EFFECTIVE DATE. (The official copy of Resolution No. 49-11 is on file in the City Clerk’s office.) A public hearing was held having been legally advertised in com pliance with the laws of the State of Florida and the Charter of the City of Delray Be ach, Florida. The City Attorney stated at the last Workshop meeting the Comm ission gave staff direction to proceed with a fire assessment fee and under Florida State Statute 197.3632 the City Commission will need to adopt this resolution so we ca n place this starting for the 2013 fiscal year on the non-ad valorem assessment roll of the tax roll for Palm Beach County. The City Manager stated the resolution authorizes the assess ment for the current fiscal year. Mayor McDuffie declared the public hearing open. Christina Morrison, 2809 Florida Boulevard #207, Delray Beach, FL 33483, stated approximately six months ago this was first talked ab out as a means of gathering some kind of taxation from the smaller properties in town that were not paying any taxes or very low taxes (i.e. condos, small homes). Ms. Morri son stated those homes that were not paying any real estate taxes also would be p aying the smallest amount of the fire assessment. Ms. Morrison stated the fire assessment as was presented last week wants to tax industrial and light industrial properties at the same rate as other commercial properties. She stated one of her investors Park Ten they pay over $300,000.00 in tax bills. Ms. Morrison stated if this goes through for an industrial p roperty it would add an additional $15,000.00 in tax dollars needed to keep running the business park. She stated industrial properties have suffered greatly over the last fe w years because they cater to contractors, suppliers and distributors that have been hard hit by the recession. Ms. Morrison stated they have significant vacancies paying huge r eal estate taxes and now the City wants to hit them with another tax. She stated she had some research done today and found that West Palm Beach for industrial and light industrial c harges one cent per square foot; Lake Worth proposes to charge two cent a square foot ; Boynton Beach is five and no one in Boca knew if there is a tax on the industrial pr operties. Ms. Morrison urged the Commission to reconsider the tax for industrial parks whic h do not carry the big value that a restaurant or store does. Mrs. Gray suggested that we consider the information provided by Ms. Morrison. The City Manager stated the rates are not being se t this evening but just establishing the legal basis to do it in the future. Mr. Carney commented about the comparison survey as related to the average residential assessment. He stated he would have like to ha ve seen that same survey as it related to not only light industrial but also commercial. 16 11/15/11 Brief discussion followed by the Commission. The City Manager suggested that the Commission have a Special W ork session on either November 29, 2011 or November 30, 2011. Mr. Frankel stated the Commission has a 5:00 p.m. Water Management Meeting on Tuesday, N ovember 29, 2011 so if the Commission decides to have a Work session it would have to be at 6:30 p.m. It was the consensus of the Commission to have a special meeting. There being no one else from the public who wished to address the Commission regarding Resolution No. 49-11, the public hearing was closed. Mr. Frankel moved to approve Resolution No. 49-11, seconded by Dr. Alperin. Upon roll call the Commission voted as follows: Mayor McDuffie – Yes; Mr. Carney – Yes; Dr. Alperin – Yes; Mr. Frankel – Yes; Mrs. Gray – Yes. Said motion passed with a 5 to 0 vote. 10.B. ORDINANCE NO. 37-11: Consider a city initiated amendment to the Land Development Regulations (LDR) Section 4.5.3, “Flood Damage Control Districts”, Subsection (D), “Construction Standards”, to modify th e section while maintaining compliance with State Statutes. The caption of Ordinance No. 37-11 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 4.5.3, “FLOOD DAMAGE CONTROL DISTRICTS”, SUBSECTION (D) “CONSTRUCTION STANDARDS”, TO MODIFY THE SECTION WHILE MAINTAINING COMPLIANCE WITH STATE STATUTES; PROVIDING A SAVING CLAUSE, A GENERAL REPEALER CLAUSE, AND AN EFFECTIVE DATE. (The official copy of Ordinance No. 37-11 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. Paul Dorling, AICP, Director of Planning and Zoning, stated on January 11, 2011, Ordinance No. 02-11 was adopted by the City Commission to amend the Flood 17 11/15/11 Damage Control Districts regulations. Mr. Dorling stated one of the major components of that was to require the lowest floor elevation be raised twel ve (12”) inches. Mr. Dorling stated with new construction that has created some issues particularly with some of the in-fill issues we have in town. He stated staff was unde r the understanding that those were mandatory changes and it has been brought to staff’s a ttention that those were not mandatory and that they were optional. Mr. Dorling stated staf f is removing the language to lower it twelve (12”) inches and relieve some of the issues. At its meeting of September 19, 2011, the Planning and Zoning Boar d reviewed this item and recommended approval; at its meeting of November 1, 2011, the City Commission recommended approval on first reading. Mayor McDuffie declared the public hearing open. There being no one from the public who wished to address the Commission regarding Or dinance No. 37-11, the public hearing was closed. Mr. Carney moved to approve Ordinance No. 37-11, seconded by Dr. Alperin. Upon roll call the Commission voted as follows: Mr. Ca rney – Yes; Dr. Alperin – Yes; Mr. Frankel – Yes; Mrs. Gray – Yes; Mayor Mc Duffie – Yes. Said motion passed with a 5 to 0 vote. 10.C. ORDINANCE NO. 40-11: Consider a city initiated amendment to the Land Development Regulations (LDR) Section 4.6.9(E)(3), “In-Lieu Fee ”, to clarify that the maximum percentage of in-lieu spaces applies only to new d evelopments and the expansion of existing developments. The caption of Ordinance No. 40-11 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 4.6.9, “OFF-STREET PARKING REGULATIONS”, SUBSECTION (E), “LOCATION OF PARKING SPACES”, PARAGRAPH (3), “IN-LIEU FEE”; TO CLARIFY THE APPLICABILITY OF THE MAXIMUM PERCENTAGE OF IN-LIEU PARKING SPACES PERMITTED; PROVIDING A SAVING CLAUSE, A GENERAL REPEALER CLAUSE, AND AN EFFECTIVE DATE. (The official copy of Ordinance No. 40-11 is on file in the City Clerk’s office.) 18 11/15/11 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. Paul Dorling, AICP, Director of Planning and Zoning, stated this w ill clarify that the 30% maximum percentage of in-lieu spaces a pplies only to new development and expansions of existing developments. Mr. Dorling s tated when the Commission adopted Ordinance No. 21-11 it applied to 30% maximum based upon some recommendations from the City’s Parking Management Plan. That Pl an was not specific with respect to the various options that it should apply to and a fter that adoption it became clear that the application should not apply to conversions of existing space as with most of those the 30% maximum would have been exceeded. At its meeting of October 10, 2011, the Downtown Development Authority (DDA) considered this ordinance and recommended approval; the West Atlantic Redevelopment Coalition (WARC) reviewed this item and recommended approval; at its meeting of October 13, 2011, the Community Redevelopm ent Agency (CRA) reviewed the item and recommended approval; at its meeting of Octob er 25, 2011, the Parking Management Advisory Board (PMAB) reviewed the item a nd recommended approval; at its meeting of October 17, 2011, the Planning and Zoning B oard reviewed the item and recommended approval with a 7 to 0 vote. Mayor McDuffie declared the public hearing open. There being no one from the public who wished to address the Commission regarding Or dinance No. 40-11, the public hearing was closed. Mr. Frankel stated he was not in favor of Ordinance No. 21-11 and it passed on a 4 to 1 vote (Commissioner Frankel dissenting). Mrs. Gray moved to approve Ordinance No. 40-11 on Second and FINAL Reading, seconded by Mr. Carney. Upon roll call the Commission vot ed as follows: Dr. Alperin – Yes; Mr. Frankel – No; Mrs. Gray – Yes; Mayor McDuf fie – Yes; Mr. Carney – Yes. Said motion passed with a 4 to 1 vote, Commissioner Frankel dissenting. 10.D. ORDINANCE NO. 41-11: Consider a city initiated amendment to the Land Development Regulations (LDR) Section 2.4.6(F), “Temporary Us e Permit”, to clarify the approval authority for uses under a tent. The caption of Ordinance No. 41-11 is as follows: AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AMENDING THE LAND DEVELOPMENT REGULATIONS, BY AMENDING SECTION 2.4.6, “PROCEDURES FOR OBTAINING PERMITS AND APPROVALS”, SUBSECTION (F), “TEMPORARY USE 19 11/15/11 PERMIT”, TO CLARIFY THAT THE CHIEF BUILDING OFFICIAL MAY GRANT PERMISSION FOR TEMPORARY USES, PROVIDING A SAVING CLAUSE, A GENERAL REPEALER CLAUSE, AND AN EFFECTIVE DATE. (The official copy of Ordinance No. 41-11 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. Paul Dorling, AICP, Director of Planning and Zoning, stated this w ill clarify the approval authority for uses under a tent. Mr. Dorling stated currently the LDRs identify that certain uses are allowed under temporary te nts and to be approved by the City Commission. These uses include sale of seasonal items (i.e. Christmas trees and the like). Retail sales and commercial uses under a tent ar e prohibited and this ordinance adds the Chief Building Official as a granting authority to approve temporary uses for tents including seasonal items. Mr. Dorling stated this ordinance f urther identifies that uses for assembly purposes are now limited to a maximum of s even (7) days. This ordinance would allow a request for that type of use up to three (3) days to be done by the Chief Building Official and between three (3) and seven (7) days by City Commission and again prohibits further requests over seven (7) days. At its meeting of October 17, 2011, the Planning and Zoning Board reviewed the item and recommended approval with a 7 to 0 vote. At i ts meeting of November 1, 2011, the City Commission recommended approval at that time. Mayor McDuffie declared the public hearing open. There being no one from the public who wished to address the Commission regarding Or dinance No. 41-11, the public hearing was closed. Dr. Alperin moved to approve Ordinance No. 41-11, seconded by Mrs. Gray. Upon roll call the Commission voted as follows: Mr. Franke l – Yes; Mrs. Gray – Yes; Mayor McDuffie – Yes; Mr. Carney- Yes; Dr. Alperin – Yes. Said motion passed with a 5 to 0 vote. 10.E. ORDINANCE NO. 42-11: Consider an amendment to Chapter 33, “Police and Fire-Rescue Departments”, Section 33.64, “Contributions”, S ubsection (A), “Member Contributions”, to increase employee contributions by 3% for police officers in compliance with the new terms of our Collective Bargaining Agreement. The caption of Ordinance No. 42-11 is as follows: 20 11/15/11 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AMENDING CHAPTER 33, “POLICE AND FIRE- RESCUE DEPARTMENTS”, SECTION 33.61, MEMBERSHIP; CONDITIONS OF ELIGIBILITY; APPLICATION”, SUBSECTION (B), “APPLICATION”, TO MODIFY MEMBER CONTRIBUTIONS; SECTION, 33.64, “CONTRIBUTIONS", SUBSECTION (A), “MEMBER CONTRIBUTIONS”, TO MODIFY MEMBER CONTRIBUTIONS FOR POLICE OFFICERS; PROVIDING A SAVING CLAUSE, A GENERAL REPEALER CLAUSE, AND AN EFFECTIVE DATE. (The official copy of Ordinance No. 42-11 is on file in the City Clerk’s office.) The City Attorney read the caption of the ordinance and state d this ordinance amends the City’s pension ordinance and makes it comport to the ratification of the collective bargaining agreement with the officers and s ergeants. A public hearing was held having been legally advertised in compliance with the l aws of the State of Florida and the Charter of the City of Delray Beach, Florida. Mayor McDuffie declared the public hearing open. There being no one from the public who wished to address the Commission, the public hearing was clos ed. Dr. Alperin moved to approve Ordinance No. 42-11, seconded by Mr. Frankel. Upon roll call the Commission voted as follows: Mrs. Gr ay – Yes; Mayor McDuffie – Yes; Mr. Carney – Yes; Dr. Alperin – Yes; Mr. Fra nkel – Yes. Said motion passed with a 5 to 0 vote. At this point, the time being 7:27 p.m., the Commission moved back to Item 13. 13.C.4. Mr. Carney Mr. Carney had no comments or inquiries on non-agenda items. 13.C.5. Mayor McDuffie Mayor McDuffie stated he had the opportunity to attend the Del -Aire Ribbon Cutting Ceremony for their new clubhouse which is 100,000 square feet. Secondly, Mayor McDuffie stated the Digital Divide Program is moving ahead and Commissioner Abrams is the Chair of the Palm Beach B roadband. Mayor McDuffie stated he has been in communication with Commissioner Abrams and 21 11/15/11 Commissioner Taylor to see what else we can do. Mayor McDu ffie stated he has also been negotiating with a Foundation and if the City meets their cr iteria, we may receive a grant of $50,000.00 from them. He stated a Tri-Party Agreement is being worked on. Lastly, Mayor McDuffie stated he just got back from Ohio. There being no further business, Mayor McDuffie declared the m eeting adjourned at 7:33 p.m. __________________________________________ City Clerk ATTEST: ____________________________________ M A Y O R 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 Meeti ng held on November 15, 2011, which Minutes were formally approved and adopted by t he City Commission on ________________________. __________________________________________________ City Clerk 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 wil l become the official Minutes only after review and approval which may involve some amendme nts, additions or deletions as set forth above. MEMORANDUM TO:Mayor and City Commissioners FROM:Lula Butler, Director, Community Improvement THROUGH:David Harden, City Manager DATE:November 22, 2011 SUBJECT:AGENDA ITEM 7.A. - REGULAR COMMISSION MEETING OF DECEMBER 6, 2011 FLORIDA CITY GOVERNMENT MONTH AT CARVER MORNING PROGRAM PRESENTATION ITEM BEFORE COMMISSION The City of Delray Beach hosted several activities during the month of October at the Carver Middle School morning program to help students understand the role of city government and their role as citizens as part of Florida City Government Month. This year we focused on water conservation. The students were exposed to a variety of people, activ ities and projects where they gained knowledge and understanding of the issues and opportunities facin g our water supply. Students heard from City staff, took a field trip to the City’s water treatment facility and the Regional Waste W ater Treatment Facility, they wrote an article for the Carver newsletter abo ut their experience and competed in a water conservation poster contest. At the City commission meeting, the Students would like to present to the City Commission what they learned and show them several pieces of original ar t work that have been selected to be displayed on a Delray Beach bus shelter. Their presentation will c ulminate with an individualized proclamation from the Mayor for each student who participated in the program . WHEREAS, you are a student attending Carver Community Middle School in Delray Beach, Florida; and WHEREAS, Carver Community Middle School Morning Program Students celebrated Florida City Government Month i n October and learned the importance of water conservation through the un derstanding of the City’s water and wastewater operations; and WHEREAS, you participated in the variety of activities includin g presentations from City staff, a tour of the City’s water and wastewater facilities, poster contest and writing news article s for the school newspaper; and WHEREAS, on Tuesday, December 6, 2011, you were recognized at the City Commission meeting for participating in the Fl orida City Government Month at Carver Community Middle School. NOW, THEREFORE, I, NELSON, S. MCDUFFIE , Mayor of the City of Delray Beach, Florida, on behalf of the City Commis sion do hereby proclaim: YOU YOU YOU YOU A AA As ss s a Participant of a Participant of a Participant of a Participant of Florida Florida Florida Florida City City City City Government Month Government Month Government Month Government Month and encourage You to continue to learn more about Your government and look forward to You becoming a concerned citizen of Delray Beach, Flori da. IN WITNESS WHEREOF, I have hereunto set my hand and caused the Official Seal of the City of Delray Beach, Florida, to be affixed this 6 th day of December, 2011. NELSON S. MCDUFFIE M A Y O R MEMORANDUM TO:Mayor and City Commissioners FROM:David T. Harden, City Manager DATE:November 29, 2011 SUBJECT:AGENDA ITEM 7.B. - REGULAR COMMISSION MEETING OF DECEMBER 6, 2011 LWDD 100TH ANNIVERSARY RESOLUTION PRESENTATION ITEM BEFORE COMMISSION Lake Worth Drainage District (LWDD) recognizes and commends the City of Delray Beach on their 100 th Anniversary– Ronald Crone MEMORANDUM TO:Mayor and City Commissioners FROM:Chief Anthony Strianese THROUGH:David T. Harden, City Manager DATE:November 28, 2011 SUBJECT:AGENDA ITEM 7.C. - REGULAR COMMISSION MEETING OF DECEMBER 6, 2011 CHIEF'S ACHIEVEMENT AWARDS PRESENTATION ITEM BEFORE COMMISSION Chief Strianese will be presenting awards to partic ipants in the 2011 Annual Law Enforcement Explorer Academy. BACKGROUND This award is being presented to participants and o fficers who attended the Tanah Keeta Boot Camp in Martin County, Florida. For seven days and nights, the officers assisted in coaching the explorers in a military style boot camp which taught life skills such as leadership, teamwork, self-confidence and trust. The Explorers also participated in physical agility workouts and confidence building exercises . MEMORANDUM TO:Mayor and City Commissioners FROM:David T. Harden, City Manager DATE:November 30, 2011 SUBJECT:AGENDA ITEM 7.D. - REGULAR COMMISSION MEETING OF DECEMBER 6, 2011 DOWNTOWN DEVELOPMENT AUTHORITY (DDA) MARKETING SUMMARY PLAN PRESENTATION ITEM BEFORE COMMISSION Marjorie Ferrer, Executive Director of Downtown Dev elopment Authority (DDA) will provide a presentation on the DDA Marketing and Program Summ ary. DDA Annual 2011 – 2012 Goal Plan Review 1 Presented July 18, 2011 POSITION MARKETING MARKETING & PROMOTION Objective: Continue Advertising locally and regionally to strengthen the brand, build awareness and increase sales within the DDA district Tactics: 1. Strengthen the Night and Day Downtown Delray Bra nd and momentum by continuing to promote and messag e through advertising vehicles that target the local and regional market Advertising Options: (Print/Online/Multi Media) - Direct Mail – post card - Magazine Advertising – Local and Regional/Nationa l o Examples: 2012 Travel Guide to Florida; Florida Tr avel Life; Southern Living; Travel Host/Clubhouse Living - Comcast Cable/ Channel 5 – TV spots - Clear Channel – trade and package giveaways worki ng with affiliate stations - Concierge Book - Palm Beach Post (editorial/advitorial special sec tions) - Monthly Merchant Promotional Campaign by building upon the Night & Day brand 2. Increase opportunities for merchants coop advert ising within local and regional markets 3. Implement new and innovative methods of promotin g through ads (QR codes: using video and web) 4. Continue to enhance the partnerships with the Pa lm Beach CVB and VisitFlorida that will provide new and innovative marketing opportunities for the Downtown Businesses - Through Travel Writer Visits and Media Trips that are conducted by the CVB and VisitFlorida 5. Reproduce the Downtown Guidebook as an inclusive resource of downtown information (city, hotels, ev ents) and advertising tool for the merchants 6. Update content, design and production of the Dow ntown Kiosk Signs Objective: Maintain and U pgrade the Layout and Functionality of the DDA downtowndelraybeach.com site Tactics: 1. Enhance the navigation for the user to ensure th at is customer friendly that will increase the numb er of page views 2. Continuing to update the merchant listings and m onthly promotion components 3. Create welcome page, update other pages and enha nce the photography 4. Update the administrative tools and reporting fu nctionality 5. Monitor analytics and increase site traffic Objective: Marketing of Downtown Clusters and Econo mic Develo pment Programs Tactics: 1. Christmas Lighting Displays and Sphere Tree, Val entine’s Day Heart displays / Mother’s Day Orchid campaign/ Earth Day 2. Continue to work with restaurants on Savor the A venue and Tastemakers promotions 3. Create the giveaway cross promotion for the Merc hants (Tote Bag) 4. Develop Downtown Day tours/packages in partnersh ip with the merchants (galleries, restaurants and s hops) Objective: Customer Service Campaign for Merchants Tactics: 1. DDA Staff continued support to the merchants – one on one and group meetings 2. Celebrate merchants birthday’s and business anniver saries 3. Implement surveys quarterly to ensure quality of service as well as reinstitute the E- Newsletter Objective: Promote to Local Residents/Other Retail Promotions Tactics: 1. Brochures, posters, tri-rail, target facebook and c ontstant contact 2. Customer Research - Create Customer Event and fo cus groups to assist in gaining feedback and insigh ts DDA Annual 2011 – 2012 Goal Plan Review 2 Presented July 18, 2011 POSITION MARKETING – CONTINUED: MARKETING & PROMOTION - CONTINUED: Objective: Visitors I nformation Center Tactics 1. Leverage the center and volunteers by enhancing the knowledge and information within the center 2. Add Digital frame of pictures 3. Continue to hold meetings for the Volunteers at local businesses 4. Enhance the training and uniforms of the Volunte ers 5. Volunteer appreciation event COMMUNICATE & COLLABORATE WITH LOCAL BOARDS & CITY DEPARTMENTS Objective: Promote DDA’s presence to Community (Pre ss releases , Newsletter/website campaign for visibility) Tactics: 1. Ensure the DDA logo is on all materials produced ; presentations when asked to community groups, merchants and individual businesses 2. Continue as a speaker for any community group – Rotary, Kiwanis, etc. 3. Participate with the Chambers Leadership Delray by conducting one of the educational classes in dow ntown Objective: Continue to be active and communicate re garding all Planning Studies that involve the DDA District Tactics: 1. Master Plan Progress; West Atlantic Plan, Cluste r Study, Osceola Neighborhood Plan with CRA 2. DDA board continue to remain active regarding cl uster 4 retail and restaurant conversions 3. Periodic review of City Planning Documents Objective: Be present at relative Board and City Co mmission Meetings, Town Hall Meetings Tactics: 1. Board Members representing DDA on community boar ds 2. More in-depth comments on City projects for Appr oval Objective: Semi -annual G oals Workshop with CRA/City/DDA/Chamber of Commerce for clear work plan definition Tactics: 1. Participate with the organizations by presenting the marketing plan to the partners and finding way s to collaborate SUPPORT DELRAY BEACH MARKETING COOPERATIVE Objective: Events & Marketing Tactics: 1. Include DMC events within DDA Marketing Brochure and Guidebook 2. Co-promote through social media vehicles and em ail blasts (4 per month) 3. Engage with Staff monthly to review programs and opportunities 4. Include DMC events within Special Press Release opportunities available through the CVB 5. Provide DMC with use of the Downtown.com website and Constant Contact database – costs assumed by DDA for both 6. Enhance the opportunity to assist with Merchant Communications as it relates to the Downtown 7. Continue to share the golf cart for distribution of materials throughout downtown Objective: Christmas Tree/ First Night Sponsorship Tactics: 1. Provide continued sponsorship funding for Tree a nd First Night 2. Market the event within the monthly advertising DDA Annual 2011 – 2012 Goal Plan Review 3 Presented July 18, 2011 PLACE SETTING SECURITY & CRIME Objective: Communicate Hospitality Resource Panel L earnings Tactics: 1. RHI Case Study 2. Good Neighbor Handbook production Objective: Downtown Security Plan / Meetings with B usinesses Working with Police Department Tactics: 1. Continue communicating with the PD and work clos ely to help each other with keeping the downtown sa fe 2. Communicate updates to the Merchants on their be half 3. Be involved with the downtown Safety plans Objective: Providing input to PD and City Tactics: 1. Conducted nighttime watch time activity downtown on a quarterly basis and more if found necessary 2. Ensure that any learnings from other cities, web inars, or feedback is communicated to assist the ci ty and PD Objective: Implement Downtown Nighttime Ambassador Program Tactics: 1. Implement the Program in partnership with PD 2. Create press releases to promote the program 3. Communicate and train the downtown businesses on the program CLEAN & SAFE Objective: Effective Monitoring of the Dumpster/Tra sh and Lighting Tactics: 1. Perform Weekly monitoring program and communicat ion sheets that will assist with the ongoing mainte nance of the Downtown 2. Implement the Atlantic High School Clean team to complete the downtown sidewalks and store fronts 3. Institute a communication plan that will allow t he merchants the opportunity and correct informatio n of who to contact with Clean and Safe issues 4. Work to engage more businesses with the opportun ity to green your business as started with the Gree n Restaurant Audit Objective: Regenerate the “Maintenance Plan” for Dow ntown Tactics: 1. Generate a meeting of the organizations that wou ld be involved in the Downtown Maintenance plan 2. Create set of accomplishments to be made by year end TRAFFIC – PARKING - NOISE TRAFFIC Objective: Reproduce the Truckers Map for Downtown Tactics: 1. Update, Produce and Promote Atlantic Avenue Truc kers Map 2. Communicate and update the constituents as it re lates to the construction of US1 CONTINUED: TRAFFIC – PARKING - NOISE PARKING Objective: Monitor and Update of the Pedestrian Way finding Signs Tactics: 1. Promote the current parking locations throughout downtown 2. Monitor and report on the parking usage in downt own DDA Annual 2011 – 2012 Goal Plan Review 4 Presented July 18, 2011 3. Create the new wayfinding signs as part of the B each Master Plan implementation Objective: Continue support of Downtown Shuttle Tactics: 1. Promote shuttle as an asset to our residents and visitors 2. Encourage customer service training and managing of the shuttle staff NOISE Objective: Support the Community, the PD/Code Enfor cement with Noise information Tactics: 1. Continue to educate and communicate the City cod es and ordinances to the businesses and communities within the district 2. Work closely with the City Staff to monitor the Clean and Safe maintenance ECONOMIC DEVELOPMENT RESEARCH - RETAIN - RECRUIT Objective: Business development/recruiting/retentio n Tactics: 1. Create, invest and promote Retail Recruitment Pa ckage that will engage new merchants 2. Participate in Monthly Economic Development Meet ings with local agencies 3. Collaborate with the CRA Marketing team to co-pr omote each other’s services 4. Continue working with Florida Redevelopment Asso ciation and International Downtown Association rega rding inclusion in conference programming and presentatio ns / awards Objective: Cluster Study Update Data/ Blount Hunter meetings as needed Tactics: 1. Continue to worked with Blount Hunter where nece ssary as it relates to the Cluster development 2. Complete the data for Cluster 7 and 5 Objective: Promote the Cluster Progress Tactics: 1. Message the areas progress through meetings and press releases to strengthen the opportunities of t he Downtown 2. Increase the awareness of the positive impact of the cluster balance Objective: Physical Enhancements Tactics: 1. Assist with the development and implantation of the Beach Master Plan 2. Create a potted plant program for the Merchants that will enhance the downtown and drive sales as r eported 3. Alley Clean up program to promote the alley navi gation of the downtown Objective: Promote Downtown Delray’s Revitalization Tactics: 1. Continue Consulting and conference attendance or speaking opportunities 2. Leverage media stories as ways to promote Delray ’s changes Objective: Communicat e to Property Owners as Necessary Tactics: 1. Property Owners Meeting – increase awareness of the DDA and the assets available to them as owners and investors in the community PHYSICAL IMPROVEMENTS Objective: Side Street & Atlantic Avenue Beautifica tion Tactics: 1. Engage with the City and Public Art Board to imp lement the Bike Corrals throughout the downtown 2. Develop the a program that will allow for new Adiro ndack Chairs to be placed within the Downtown that will DDA Annual 2011 – 2012 Goal Plan Review 5 Presented July 18, 2011 enhance the sociability. Objective: Monitor & suggest physical improvement within DDA District Tactics: 1. Ensure the gateway feature installation and commun ication takes place throughout the year Objective: Communicate Construction Updates Tactics: Communicate to the businesses with a consistent mes sage as needed Delray Beach Downtown Development Authority 2010-2011 Marketing and Program Summary MISSION: The Delray Beach Downtown Development Authority (DDA) was created by Resolution as a dependent district of the Ci ty of Delray Beach in 1971 by state legislature. The main areas of invo lvement in downtown redevelopment include: Marketing and Promotion of the Downtown DDA district, business development, security and crime, clean & safe, traffic and parking, physical improve ments, reviewing the City comprehensive pl an within the DDA boundaries, housing and improvements of coordination with local boards and City departments. MISSION STATEMENT: The mission is to enhance and stimulate economic growth through position Marketing activities that engage the Downtown businesses, resid ents, and visitors while creating a clean, safe, physical and experiencialp lace to live work and invest. 2008-2013 DDA Mission: Position Marketing: 1.Marketing & Promotion of the Downtown District 2.Improve Coordination / Communication with local boards & Cit y Departments to enhance the downtown 3.Support Delray Beach Marketing Cooperative through events Place Making: 4.Security & Crime / Clean & Safe management throughout the downtown 5.Traffic / Parking / Noise management and collaboration wi th the Downtown Economic Development: 6.Drive Economic Development within the Downtown through Retention and Recruitment 7.Physical Improvements and enhancements of the downtown 2008-2013 Goals Position Marketing 2010-2011 Downtown Brand Marketing Strategy •Develop a theme/brand that will promote the Downtown as a unique and sociable city which will enhance, strengthen and establish new business opportunities •Generate excitement among the business community that fosters a more collaborative working relationship •Create a monthly campaign recognizing specific categories of businesses 2010/2011 Monthly Campaigns 2010/2011 Monthly Brochures Each Month Representing a different theme to highlight the unique categories of businesses in Downtown Delray Beach 2010/2011 Advertising -samples Utilize photos of own businesses Within the community as another source of advertising Monthly magazine ads Negotiate Coop Opportunities for the Businesses to participate Monthly magazine ads and editorial Monthly TV Spot Downtowndelraybeach.com Website: •187,969Total Visits •145,385Unique •618,312 Pageviews •176,000 US Visits •5000 Canadian Visits •Target Audience: Local and Regional •Supporting the Downtown Brand & Merchant Program & Drive to the Website •Print Ads: Over 50 Full and Half page Ads Designed & Produced 10 Editorial Pieces written Newspaper and Magazine •Multi Media: 216 -TV Monthly Spots (WPTV Channel 5) 90 -Radio Spots (Clear Channel Radio) •Online: Over 70 Online ads produces / e-blasts VisitFlorida, CVB, Sun-Sent inel, Clear Channel Radio, DelrayMag.com, FL Travel Lifestyles 2010-2011 Marketing Summary 2010/2011 Marketing Successes Total Impressions : 52 Million Impressions •Print –33 Million Impressions •TV –14.5 Million •Online –4.5Million (includes Social Media outlets) •Email Blasts (constant contact): 28,260 emails opened / 785 o pens per blast (29% rate) average (industry average 22%) Total Leads and Database increases: 5,799 •Sweepstakes: –Conducted 6 Sweepstakes through Night and Day Campaign –Received 3000 Total Entries –30% elected to receive DDA Updates •Publication Leads: –Received 5,326 Leads from VisitFlorida Visitor Guide Publicat ion and Southern Living who receive direct mail updates 2010/2011 Marketing Investments •Total Business Participation 200 Merchants Participated 495 total Specials or Promotions to include in store events •Overall Merchant Rating of the Program 85% Rank the overall Awareness Program Good to Excellent 90% of the merchants surveyed said that the program assisted in developing new customers Comments: “Love the Night and Day –it makes the town seem alive” “Cannot measure the results but do believe it has increased awareness of my store” “Love the design, the commercia l –especially at primetime” •Total Marketing Investments: DDA ‘s total: $101,343 In-Kind Received: $246,980 Sponsor Support:$67,349 Business Coop: $188,470 Total Value: $1,214,882 •Economic Impact: $204,347,608 *American Arts Calculator 2010/2011 Marketing Successes •Creating and Launching of Mobile Website •Web listing updates –updated photography •Capturing the Real Images of Downtown Businesses •Sphere Holiday Tree at the Beach •Reusable Tote Bag Giveaway and Earth Day on the Avenue (10,000 given away) •Visitor Information Center visits (14,200 visitors) •Successful Retail Promotions –Valentine’s Day and Mother’s Day •Implemented Social Media campaign Coordination & Communication with Boards and City •2010/2011 DDA Advisory Board Members continue their involvement within the Community Boards and with the City •Strong presence at the monthly DDA Meetings supporting the DDA’s 40 years of progress Support the Delray Beach Marketing Cooperative •DDA Sponsorship of the Christmas Tree •DDA Sponsorship of First Night •DDA Board Member is also Board Member on DBMC •Provide the DBMC with access to the www.downtowndelraybeach.com website and other related programs 2010-2011 Place Making Clean & Safe & Security/Crime •Monitor the Nighttime progress in all areas •Atlantic High School Clean Team –300 Block Cleaned –Partial of the 400 Block –Over $2000 raised for Team •Nighttime Ambassador Volunteer Program •Weekly Monitor and Tracking sheets with the City Traffic –Parking –Noise •Parking Implementation Committee •Merchant Parking Monitoring –Employee Parking –Valet •Working closely with the PD and businesses on Code updates 2010-2011 Economic Development Economic Development •Retail Recruitment Package •Monthly Promotion Campaign supporting Retention of the existing businesses •Completed a sell-out Tastemakers and Savor the Avenue Event •One on One meeting with the businesses •Conducted a storefront enhancement with Potted Plants Physical Improvements •Working with the City Team on the Beach Master Plan, Veterans Park and WorthingPark, Atlantic Ave. Bridge •Gateway Feature Position Marketing: 1.Marketing & Promotion of the Downtown District 2.Improve Coordination / Communication with local boards & Cit y Departments to enhance the downtown 3.Support Delray Beach Marketing Cooperative through events Place Making: 4.Security & Crime / Clean & Safe management throughout the downtown 5.Traffic / Parking / Noise management and collaboration wit h the Downtown Economic Development: 6.Drive Economic Development within the Downtown through Retention and Recruitment 7.Physical Improvements and enhancements of the downtown 2010-2011 Goal Summary Looking ahead 2011/2012 Position Marketing: 1.Marketing & Promotion of the Downtown District 2.Improve Coordination / Communication with local boards & Cit y Departments to enhance the downtown 3.Support Delray Beach Marketing Cooperative through events Place Making: 4.Security & Crime / Clean & Safe management throughout the dow ntown 5.Traffic / Parking / Noise management and collaboration with the Downtown Economic Development: 6.Drive Economic Development within the Downtown through Re tention and Recruitment 7.Physical Improvements and enhancements of the downtown 2011-2012 Goals Highlights Marketing Campaign •Enhance the creative and keep a consistent “Look “throughout the marking pieces •Expand the audience and better identify the target custome r •Continually drive customers to the DDA website for information (downtowndelraybeach.com) (this year plan to upgrade the site) •Drive customers to social media site (facebook.com/delraydda) •Ultimately Increase Sales of the Downtown Businesses •Print Media –Local and National Target –Brochures and Posters –Magazine and Newspaper •Social Media –Local and National –FacebookAds monthly –Merchant offers posted –Expanding DelrayDDApage •TV Commercial Spots –Local –Channel 5 and Comcast –:15 second spot –Merchant involvement Advertising Outlets •Continue to Build Momentum •Continue to Produce & Market the Monthly Themed Brochure •Increase Merchant Participation •Increase customer awareness and drive sales •Grow impressions to exceed 120 Million through all advertising vehicles Marketing & Promotion Brochures and Posters 2011-2012 Place Making •Clean & Safe: work closely with the City Departments to monitor and manage the cleanliness of the downtown –Atlantic High School Clean Team to continue –Earth Day on the Avenue •Security & Crime: –work closely with the Hospitality Resource Panel and the PD –Enhance communication with the Merchants and t he Clean & Safe Officers to monitor the security of Downtown –Implement the Ambassador Program •Traffic/Parking: –Implementation Team –Shuttle Marketing Program –WayfindingSign enhancement –Noise monitoring 2011-2012 Economic Development •Recruiting and Retention –Focus on retaining the businesses t hat we have and enhancing their business –Create a Retail Recruitment package highlighting the success stories of downtown businesses –Promote Progress –Enhance communication •Economic Development –Cluster Study Updates –Co-Host the 4 th Annual Savor the Avenue Event -March 29, 2012 –Co-Host the 4 th Annual Tastemakers Event -Aug. 2012 –Valentines Day and Mother’s Day Campaigns –Holiday Lighting and the Sphere Tree at A1A •Physical Improvements: –Beach Master Plan Implementation Team –Promote and Communicate the Progress and Development Thank you from the DDA Team: Marjorie Ferrer, Executive Director & Laura Simon, Associate Directo r And all the downtown businesses! MEMORANDUM TO:Mayor and City Commissioners FROM:Ronald Hoggard, AICP, Principal Planner Paul Dorling, AICP, Director Planning and Zoning THROUGH:City Manager DATE:November 17, 2011 SUBJECT:AGENDA ITEM 8.A. - REGULAR COMMISSION MEETING OF DECEMBER 6, 2011 FINAL SUBDIVISION PLAT APPROVAL /OCEAN APPLE ESTATES PLAT TWO ITEM BEFORE COMMISSION The item before the City Commission is the certific ation of a final plat for a 1.52 acre three lot, si ngle- family subdivision known as Ocean Apple Estates Pla t Two. This plat is being processed pursuant to LDR Section 2.4.5(K), Minor Subdivisions. BACKGROUND The subject property is located within the North Be ach/Seagate Neighborhood Overlay District at the southeast corner of Andrews Avenue and Hammond Road . It is zoned Single Family Residential (R-1- AAA). The property is currently platted as Lots A a nd B, Lane Subdivision (Plat Book 91, Page 183) and Lot 3, Ocean Apple Estates (Plat Book 65, Page 100). An existing two-story single-family residence, constructed in 2010, is located on Lot A of Lane Subdivision at 1206 Hammond Road. The other two lots are undeveloped. The replat will rec onfigure the lots in the existing subdivisions by taking the north 50 feet of Lot 3, Ocean Apple Esta tes and adding it to Lots A and B of Lane Subdivision. This replat is now before the City Com mission for final action. Plat Analysis: City staff has reviewed the plat and determined tha t all technical comments have been satisfied. Pursuant to LDR Section 3.1.1, prior to approval of development applications, certain findings must be made in a form which is part of the official record . This may be achieved through information in the application, the staff report, or minutes. Findings shall be made by the body which has the authority to approve or deny the development application. These findings relate to Future Land Use Map Consistency, Concurrency and Consistency with the C omprehensive Plan, and Compliance with the Land Development Regulations. Future Land Use Map The subject property has a Future Land Use Map desi gnation of LD (Residential- Low Density, 0-5 du/ac) and is zoned R-1-AAA (Single Family Residential). Pursuant to the La nd Use Designation/Zoning Matrix (Table L-7, Future Land U se Element), the R-1-AAA zoning district is consistent with the LD Land Use Map Designation. Wi thin the R-1-AAA zoning district, conventionally sited single family detached residences are allowed as a permitted use. Concurrency Since there are no additional lots being created wi th the replat, a Concurrency finding is not require d. No internal street system is proposed with this sub division, as direct access is available from Andrew s Avenue and Hammond Road. Both water and sewer servi ce are available via connection to existing lines. A $500 park impact fee will be required at i ssuance of a building permit for any new residencia l units constructed on Lots 2 or 3. Consistency The performance standards set forth in LDR Section 3.2.3 (Standards for Site Plan and/or Plat Actions) shall be the basis upon which a finding of overall consistency is to be made. As described in Appendix “A”, (attached) a positive finding for consistency can be made as it relates to Standards for Plat Act ions. Land Development Regulations The proposed Ocean Apples Estates Plat Two will con tain three single-family lots with widths between 100 and 140 feet. Pursuant to LDR Section 4.3.4(E)(3), for corner lots, the side having the least stre et frontage shall be the front for setback purposes. T he front for Lots 1 and 2 will be Hammond Road and the front for Lot 3 will be Andrews Avenue. The proposed lots, at 0.44, 0.49 and 0.60 acres, ar e consistent and compatible in size with existing l ots in the area. As shown on the following table, all t hree lots meet or exceed the minimum lot dimension requirements in Section 4.3.4(K), “Development Stan dards Matrix”. Based upon the above, positive findings with respec t to Future Land Use Map Consistency, Concurrency and Consistency with the Comprehensive Plan, and Compliance with the Land Development Regulations can be made. Lot Lot Size (Square Feet) Lot Width Lot Depth Lot Frontage Minimum Required 12,500 100 ’ 110 ’ 100 ’ Proposed Lot 1 19,084 127.4 ’ 150 ’ 127.4 Proposed Lot 2 21,248 140’ 154.45 140’ Proposed Lot 3 26,050 100 ’ 260.50 100 ’ REVIEW BY OTHERS Minor Subdivisions are not reviewed by the Planning and Zoning Board and the property is not located in an area requiring recommendations from any other Board or Agency. Courtesy Notices: Courtesy notices have been sent to the following ho meowner’s and/or civic associations: • Neighborhood Advisory Council • Beach Property Owners Association RECOMMENDATION Move approval of Ocean Apple Estates Plat Two,, by adopting the findings of fact and law contained in the staff report and finding that the request and a pproval thereof is consistent with the Comprehensiv e Plan and meets the criteria set forth in Section 2.4.5(K) (Minor Subdivisions), Section 3.2.3 (Standar ds for Site Plan and/or Plat Actions) and Section 3.1.1 (Required Findings) of the Land Development Regulations: Y:\GENERAL CADD\Gxd\11-41.gxd -- 11/17/2011 -- 11:4 6 AM -- Scale 1 : 240.0000 Y:\GENERAL CADD\Gxd\11-41.gxd -- 11/17/2011 -- 11:4 7 AM -- Scale 1 : 240.0000 1 A P P E N D I X A S T A N D A R D S F O R P L A T A C T I O N S A. Building design, landscaping, and lighting (glare) shall be such that they do not create unwarranted distractions or blockage of visibility as it pertains to traffic circulation. Not applicable X Meets intent of standard Does not meet intent B. Separation of different forms of transportation shall be en couraged. This includes pedestrians, bicyclists, and vehicles in a manner con sistent with policies found under Objectives D-1 and D-2 of the Transportation Element. Not applicable X Meets intent of standard Does not meet intent C. Open space enhancements as described in Policies fo und under Objective B-1 of the Open Space and Recreation Element are appropriately addr essed. Not applicable X Meets intent of standard Does not meet intent D. The City shall evaluate the effect that any street wideni ng or traffic circulation modification may have upon an existing neighborhood. I f it is determined that the widening or modification will be detrimental and result in a degradation of the neighborhood, the project shall not be permitted. Not applicable X Meets intent of standard Does not meet intent E. Development of vacant land which is zoned for residenti al purposes shall be planned in a manner which is consistent with adjacent developme nt regardless of zoning designations. Not applicable Meets intent of standard X Does not meet intent 2 F. Vacant property shall be developed in a manner so th at the future use and intensity are appropriate in terms of soil, topographic, and other applicable physical considerations; complementary to adjacent land uses; and fulfills remaining land use needs. Not applicable Meets intent of standard X Does not meet intent G. Redevelopment and the development of new land shall result in the provision of a variety of housing types which shall continue to accommo date the diverse makeup of the City’s demographic profile, and meet the housing nee ds identified in the Housing Element. This shall be accomplished through the impleme ntation of policies under Objective B-2 of the Housing Element. Not applicable Meets intent of standard X Does not meet intent H. The City shall consider the effect that the proposal wil l have on the stability of nearby neighborhoods. Factors such as noise, odors, dust, tra ffic volumes and circulation patterns shall be reviewed in terms of their potential to n egatively impact the safety, habitability and stability of residential areas. If it is d etermined that a proposed development will result in a degradation of any neighbo rhood, the project shall be modified accordingly or denied. Not applicable Meets intent of standard X Does not meet intent I. Development shall not be approved if traffic associated with such development would create a new high accident location, or exacerbate an e xisting situation causing it to become a high accident location, without such developm ent taking actions to remedy the accident situation. Not applicable Meets intent of standard X Does not meet intent J. Tot lots and recreational areas, serving children fr om toddler to teens, shall be a feature of all new housing developments as part of the des ign to accommodate households having a range of ages. This requirement may be waived or modified for residential developments located in the downtown area, a nd for infill projects having fewer than 25 units. Not applicable X Meets intent of standard Does not meet intent MEMORANDUM TO:Mayor and City Commissioners FROM:Tracie M. Lutchmansingh, P.E., Assistant City Engineer Richard C. Hasko, P.E., Environmental Services Dire ctor THROUGH:David T. Harden, City Manager DATE:November 30, 2011 SUBJECT:AGENDA ITEM 8.B. - REGULAR COMMISSION MEETING OF DECEMBER 6, 2011 ACCEPTANCE OF A WATER UTILITY EASEMENT DEED/ LINTON DELR AY, LLC ITEM BEFORE COMMISSION Acceptance of a Water Utility Easement with Linton Delray, LLC. for the adjacent development to be known as Franklin at Delray Beach which will be loc ated at 1030 S. Federal Highway. BACKGROUND Franklin at Delray Beach will be located on the wes t side of S.E. 5th Avenue (South Federal Highway), north of Linton Boulevard and approximately two blo cks south of S.E. 10th Street. Proposed improvements include connection to an existing wate r main on the adjacent property to the south to provide a looped system. The owner of the property south of Franklin at Delray, Linton Delray, LLC. has agreed to grant the City of Delray Beach an eas ement for the purpose of construction and maintenance of the required water main. RECOMMENDATION Staff recommends acceptance of the easement deed. MEMORANDUM TO:Mayor and City Commissioners FROM:Tracie M. Lutchmansingh, P.E., Assistant City Engineer Richard C. Hasko, P.E., Environmental Services Dire ctor THROUGH:David T. Harden, City Manager DATE:November 30, 2011 SUBJECT:AGENDA ITEM 8.C. - REGULAR COMMISSION MEETING OF DECEMBER 6, 2011 REQUEST FOR SIDEWALK DEFERRAL / 1011 BUCIDA ROAD ITEM BEFORE COMMISSION The item before Commission is consideration of a si dewalk deferral along Bucida Road for property located at 1011 Bucida Road. BACKGROUND The applicant submitted a building permit applicati on to construct a new single family residence. Currently, there are no plans to install a sidewalk along Bucida Road. Sidewalk deferral was supported at the September 8th, 2011 DSMG meeting. RECOMMENDATION Staff recommends approval of the sidewalk deferral. MEMORANDUM TO:Mayor and City Commissioners FROM:Rafael Ballestero, Deputy Director of Construc tion Richard C. Hasko, P.E., Environmental Services Dire ctor THROUGH:David T. Harden, City Manager DATE:November 17, 2011 SUBJECT:AGENDA ITEM 8.D. - REGULAR COMMISSION MEETING OF DECEMBER 6, 2011 CONTRACT ADDITION (CHANGE ORDER NO. 1)/INTERCOUNTY ENGINEERING, INC. ITEM BEFORE COMMISSION This item is before the Commission to approve a Con tract Addition (CO #1), in the total amount of $44,062.41, for a water main replacement on Island Drive and swale improvement for the Reclaimed Water System Area 11B Project #2010-074. BACKGROUND On March 1, 2011; Commission approved a Bid Award t o Intercounty Engineering, Inc. in the amount of $1,408,505.93 for the Area 11B Reclaimed Water S ystem Project. The scope of work involved continuing construction of the reclaimed transmissi on and distribution system on the barrier island, f rom Beach Drive north to George Bush Blvd and on severa l streets between Atlantic Avenue and Lowry Street. The project included installation of 10”, 6” and 4” PVC pipe throughout the residential neighborhoods. Contract Addition (CO #1) is for a water main repla cement on Island Drive and swale improvements. During construction of the Area 11B Project, a port ion of water main was upgraded on Island Drive, from Andrews Avenue west to the bridge. Connection to the existing pipe on the west side of the bridg e was very challenging, as the existing pipe was in v ery poor condition. This segment of old pipe is approximately 320 LF, and connects to a segment of pipe which has already been previously upgraded. The cost of the water main replacement is $39,989.4 2. The swale improvement scope includes three (3) areas within the Area 11B project limits. These ar eas have ponding in the roadway, and the swale work is to improve the drainage in these locations. The cost for the swale work is $4,072.99. The costs are detailed on the attached Exhibit "A" to CO #1. A location map is also attached. FUNDING SOURCE Funding is available as follows: $39,989.42 442-5178-536-63.50 (Water/Sewer Ren ewal & Replacement Fund/ Improvements Other/Water Mains); after budget transfer. $ 4,072.99 448-5461-538-46.43 (Storm Water Utility Fund/drainage swales). $44,062.41 RECOMMENDATION Staff recommends approval of a Contract Addition (C O #1), in the total amount of $44,062.41, for a water main replacement on Island Drive and swale im provements; for the Reclaimed Water System Area 11B Project. MEMORANDUM TO:Mayor and City Commissioners FROM:Rafael Ballestero, Deputy Director of Construc iton Richard C. Hasko, P.E., Director of Environmental S ervices THROUGH:David T. Harden, City Manager DATE:November 17, 2011 SUBJECT:AGENDA ITEM 8.E. - REGULAR COMMISSION MEETING OF DECEMBER 6, 2011 CONTRACT ADDITION (CHANGE ORDER NO. 3)/FOSTER MARINE CONTRACTOR S, INC. ITEM BEFORE COMMISSION This item is before the Commission to approve a Con tract Addition (CO #3) in the total amount of $55,674.20, to Foster Marine Contractors, Inc. for the construction of additional parking for two (2) additional properties; quantity overrun for additio nal water service relocations; and a contract time extension of twenty-three (23) days; for the SW 12 Ave/Auburn/SW 14 Ave. Project #2010-098. BACKGROUND On May 3, 2011, Commission approved a Contract Awar d to Foster Marine in the amount of $1,586,019.82 for construction of improvements on S W 12th Ave./Auburn Ave./SW 14th Ave. from SW 10th St. to W. Atlantic Ave. The scope includes new pavement, micro-surfacing, curbing, parallel parking, drainage (including swales), water main up grades, landscaping, decorative street lights (SW 1 st St to W. Atlantic Ave.) and paver crosswalks. On June 23, 2011, the City Manager approved an addi tional cost in the amount of $4,150.82 for electrical changes to provide LED street light fixt ures in lieu of metal halide fixtures; to be paid o ut of the contract's Unforeseen Conditions Allowance. Th en on July 29, 2011, the City Manager approved an additional cost in the amount of $6,301.46 for exca vation and disposal of debris encountered during pipe installation; to be paid out of the Unforeseen Conditions Allowance. On September 6, 2011, Commission approved additiona l scope consisting of the relocation of ten (10) Sewer cleanouts between SW 3rd and 4th St. in the a mount of $6,038.50; to be paid out of the contract's Unforeseen Conditions Allowance. On September 20, 2011, Commission approved addition al scope in the total amount of $24,710.49 for relocation of twelve (12) sewer laterals outside of the proposed sidewalk area in the block from SW 2n d St. to SW 3rd St.; two (2) additional street light poles, due to the contractor not realizing that, wh en the revised electrical plan was issued changing the met al halide fixtures to LED fixtures, two additional poles were added; and the installation of 72 LF of concrete ribbon as requested by the CRA, for 242 SW 12th Ave. On October 4, 2011, Commission approved Change Orde r No. 1 (CO #1) for the relocation of an additional twenty-eight sewer cleanouts out of the area of the propos ed sidewalk, in the additional amount of $16,907.80; and the cost of $1,400.00 for removal of two (2) existing inlets; the cost of th e removal of the two (2) additional existing inlets w hich were not included in the contract price was paid from the contract's Unforeseen Condi tions Allowance. On November 15, 2011, Commission approved Change Or der No. 2 (CO #2) for an adjustment in contract quantities to Contract Line Items #21 and #24 as follows: #21 -Type S-III Pavement Overbuild; quantities were added for the roadway sl ope adjustment along SW 12th Ave. and an existing asphalt driveway which will require asphalt overbui ld to match the proposed sidewalk grade. Line Item #24 -4' Wide concrete sidewalk; to properly transition a new driveway elevation to the existing walkway; and a contract time extension of seven (7) additional days. This Contract Addition (CO #3), in the total amount of $55,674.20, includes the cost for additional parking in the amount of $47,574.20; and the cost f or the quantity overrun in the amount of $8,100.00. As part of the SW Area Redevelopment, the CRA, plan ned to provide on-street parallel parking and move the vehicular access to the rear of the proper ties. Originally, twenty-six (26) properties accepted the rear parking areas along the project corridor. As a result, the project was designed, approved and awarded based on 26 properties. After the contract was awarded, two (2) additional properties were added to the project. On June 21, 2011, Commission approved the design of the two (2) additional properties. On October 21, 2011, the design was co mpleted. CO #3 scope includes the construction of the back-out parking, in the amount of $47,574.20, for prope rties located at 42 SW 12th Ave and 136/138 SW 14th Ave. This additional cost is being funded by the CRA. In addition, CO #3 includes a quantity overrun on C ontract Line Item #76 Relocate Water Service and Replace Meter Box. The overrun in the amount of $8 ,100.00 (9 times unit price of $900), was discovered during construction. The actual num ber of water services to be relocated was greater than what was provided in the contract quantity; th e contract quantity was underestimated. Also, the contractor is requesting a contract time extension of a total of twenty-three (23) additional days. Attached, please find the cost detailed on E xhibit "A" to CO #3, and a Location Map. FUNDING SOURCE Funding is available as follows: $47,574.20 334-3162-541-68.04 (General Constructi on Fund/Other Improvement/ SW 12 Ave/Auburn/ SW 1 4 Ave). $ 8,100.00 442-5178-536-49.33 (Water/Sewer Renewal & Replace ment Fund/Other $55,674.20 Current Charges/OB/Water Servic e Relocations); after budget transfer. RECOMMENDATION Staff recommends approval of a Contract Addition (C O #3) in the total amount of $55,674.20, to Foster Marine Contractors, Inc. for construction of parkin g for two (2) additional properties; quantity overr un for additional water service relocations; and a con tract time extension of twenty-three (23) days; for the SW 12 Ave/Auburn/SW 14 Ave Project. MEMORANDUM TO: Mayor and City Commissioners FROM: Lula Butler, Director, Community Improvement THROUGH: David Harden, City Manager DATE: November 23, 2011 SUBJECT: AGENDA ITEM 8.F. -REGULAR COMMISSION MEETING OF DECEMBER 6, 2011 PROFESSIONAL SERVICES VENDOR LIST/NEIGHBORHOOD STABILIZATION PROGRAM (NSP) ITEM BEFORE COMMISSION City Commission approval of the list of vendors for Professional Services required to carry out activities under the Neighborhood Stabilization Program (NSP) solicited under RFQ 01-2012, contingent on the same being approved by the Florida Department of Community Affairs. BACKGROUND On September 23, 2011, the City publicized a Request for Proposal (RFQ 01-2012) to obtain general contractors to provide rehabilitation services for NSP properties. Responses were received on October 25, 2011 from twenty (20) companies, five (5) of which were determined to be qualified to provide services for rehabilitation and construction, in accordance with City purchasing policies and the specifications of the RFQ. A tabulation of responses is attached for your review. The total cost of repairs for housing units acquired will be determined on a case-by-case basis. Staff is recommending the following companies be approved for the professional services designated after executing the required agreement with the City. Construction Services All Phase Roofing and Construction CJ Contracting, LLC. Gentile LLC Solid Builders Construction Company Stacy Bomar Construction, LLC RECOMMENDATION Staff is recommending City Commission approval of the list of qualified vendors in response to the City’s RFP 01-2012NS contingent on approval by DCA. ls General Contractors Evaluation P No. 01-2012NSAll PHASE ROOFING AND CONSTRUCTION ASSURED CONTRACTING LLC ALL-STATE CONSTRUCTION BLACKSTREET ENTERPRISES BUILT SOLID CONSTRUCTION CJ CONTRACTING LLC CORDOBA CONSTRUCTION CORPORATION, INC FAITH CONSTRUCTION CORPORATION GENTILE LLC GULF BUILDING DESIGN GROUP Score 1 94 52 82 100 88 100 88 94 94 100 Score 2 90 40 75 85 80 100 75 70 95 80 Score 3 88 49 88 100 98 100 91 97 91 100 TOTALS 272 141 245 285 266 300 254 261 280 280 AVERAGE 91 47 82 95 89 100 85 87 93 93 HATCHER CONSTRUCTION & DEVELOPMENT HAYWOOD CONSTRUCTION JIJ CONSTRUCTION CORPORATION NEW BOLD CONSTRUCTIO N INC PBS NATIONAL INC. PORTEN CONTRACTING CORP RANDOLPH & DEWDNEY CONSTRUCTIONS INC SOLID BUILDERS CONSTRUCTION COMPANY STACY BORMAN CONSTRUCTION, LLC SUNNY SOUTH CONSTRUCTION COMPANY INC Score 1 67 69 78 88 79 71 100 94 95 94 Score 2 45 50 80 65 55 40 85 90 80 65 Score 3 72 78 80 97 81 76 100 100 94 96 TOTALS 184 197 238 250 215 187 285 284 269 255 AVERAGE 61 66 79 83 72 62 95 95 90 85 MEMORANDUM TO:Mayor and City Commissioners FROM:Lula Butler, Director, Community Improvement THROUGH:David Harden, City Manager DATE:November 23, 2011 SUBJECT:AGENDA ITEM 8.F. - REGULAR COMMISSION MEETING OF DECEMBER 6, 2011 PROFESSIONAL SERVICES VENDOR LIST/NEIGHBORHOOD STABILIZATION PROGRAM (NSP) ITEM BEFORE COMMISSION City Commission approval of the list of vendors for Professional Services required to carry out activities under the Neighborhood Stabilization Pro gram (NSP) solicited under RFQ 01-2012, contingent on the same being approved by the Florid a Department of Community Affairs. BACKGROUND On September 23, 2011, the City publicized a Reques t for Proposal (RFQ 01-2012) to obtain general contractors to provide rehabilitation services for NSP properties. Responses were received on October 25, 2011 from twenty (20) companies, five (5) of wh ich were determined to be qualified to provide services for rehabilitation and construction, in ac cordance with City purchasing policies and the specifications of the RFQ. A tabulation of response s is attached for your review. The total cost of repairs for housing units acquired will be determin ed on a case-by-case basis. Staff is recommending the following companies be approved for the professiona l services designated after executing the required agreement with the City. Construction Services All Phase Roofing and Construction CJ Contracting, LLC. Gentile LLC Solid Builders Construction Company Stacy Bomar Construction, LLC RECOMMENDATION Staff is recommending City Commission approval of t he list of qualified vendors in response to the City’s RFP 01-2012NS contingent on approval by DCA. ls General Contractors Evaluation P No. 01-2012NS All PHASE ROOFING AND CONSTRUCTION ASSURED CONTRACTING LLC ALL-STATE CONSTRUCTION BLACKSTREET ENTERPRISES BUILT SOLID CONSTRUCTION CJ CONTRACTING LLC CORDOBA CONSTRUCTION CORPORATION, INC FAITH CONSTRUCTION CORPORATION GENTILE LLC GULF BUILDING DESIGN GROUP Score 1 94528210088100889494100 Score 2 904075858010075709580 Score 3 88498810098100919791100 TOTALS 272141245285266300254261280280 AVERAGE 914782958910085879393 HATCHER CONSTRUCTION & DEVELOPMENT HAYWOOD CONSTRUCTION JIJ CONSTRUCTION CORPORATION NEW BOLD CONSTRUCTIO N INC PBS NATIONAL INC. PORTEN CONTRACTING CORP RANDOLPH & DEWDNEY CONSTRUCTIONS INC SOLID BUILDERS CONSTRUCTION COMPANY STACY BORMAN CONSTRUCTION, LLC SUNNY SOUTH CONSTRUCTION COMPANY INC Score 1 676978887971100949594 Score 2 45508065554085908065 Score 3 7278809781761001009496 TOTALS 184197238250215187285284269255 AVERAGE 61667983726295959085 MEMORANDUM TO:Mayor and City Commissioners FROM:Lula Butler, Director, Community Improvement THROUGH:David Harden, City Manager DATE:November 23, 2011 SUBJECT:AGENDA ITEM 8.G. - REGULAR COMMISSION MEETING OF DECEMBER 6, 2011 AGREEMENT/PBC/DRI2 PROGRAM ITEM BEFORE COMMISSION Request for City Commission approval to continue th e agreement between the City and Palm Beach County for the Disaster Recovery Initiative (DRI2) Housing Rehabilitation Program. BACKGROUND At the January 31, 2008 meeting, City Commission ap proved an Agreement between the City and Palm Beach County for $980,000 to complete up to 24 hous ing rehabilitation projects for income-eligible residents who suffered damages from Hurricane Wilma . There are currently 6 housing rehab projects underway in various stages of the process. The orig inal deadline to expend funds was December 31, 2008, however, the County agreed to extend this dea dline through several amendments: Amendment 1 – approved by Commission on December 2, 2008, Amendm ent 2 – approved by Commission on September 10, 2009, and Amendment 3 – approved by Commission on October 19, 2010. Amendm ent 4 – (approved by Commission on September 6, 2011) provid ed for various other revisions. The County has agreed to a new Agreement for $698,659.29, sett ing the new deadline to expend remaining funds retroactive from October 28, 2010 through September 16, 2012. RECOMMENDATION Staff recommends approval of the Agreement between the City and Palm Beach County for the DRI Housing Rehabilitation Program in order to extend t he deadline from September 16, 2011 through September 16, 2012. AGREEMENT BETWEEN PALM BEACH COUNTY AND CITY OF DELRAY BEACH THIS AGREEMENT , entered into this day of , 20___, by and between Palm Beach County, a political subdivision of the State of Florida, and the City of Delray Beach , a municipality duly organized and existing by virtue of the laws of the State of Florida, having its principal office at 100 NW 1st Avenue, Delray Beach, FL 33444. WHEREAS , Palm Beach County has entered into a Contract (Number 07DB-3V-10-60-01-Z07 ) with the State of Florida, Department of Economic Opportunity LQFRQQHFWLRQZLWKWKH6WDWH¶V Disaster Recovery Initiative Program which the State is implementing for the use of grant funds provided by the United States Department of Housing and Urban Development under its Community Development Block Grant Program; and WHEREAS, the City of Delray Beach was allocated certain funds under said Contract to implement specified activities under the 2005 Disaster Recovery Initiative Program; and WHEREAS , The City of Delray Beach , having entered into a prior Agreement between the Municipality and the County (R2008-1482) dated January 31, 2008, as amended by Amendment 001 (R2009-0208) on February 3, 2009, and by Amendment 002 (R2009-1972) on November 17, 2009 (collectively hereinaf WHUWKH³)LUVW$JUHHPHQW´ DQGDFRQWLQXDWLRQRIWKHSURMHFWFRQWDLQHGLQDSULRU Agreement between the Municipality and the County (R2010-1282), dated June 22, 2010 (hereinafter WKH³6HFRQG$JUHHPHQW´ DQGDFRQWLQXDWLRQRIWKHSURMHFWFRQWDLQHGLQDSU ior Agreement between the Municipality and the County (R2011- GDWHG2FWREHU KHUHLQDIWHUWKH³7KLUG $JUHHPHQW´ IRUWKHLPSOHPHQWDWLRQRIIXQGVWRSURYLGHVSHFLILHGDFWLYLWLHV XQGHUWKH&RPPXQLW\ Development Block Grant, has not fully expended all of the aforementioned funds, and both parties are in mutual agreement to continue the work commenced under the prior agreements, and to utiliz e the remaining funds to provide specified activities for eligible activities; and WHEREAS , Palm Beach County desires to engage the City of Delray Beach to implement the activities associated with the funds allocated to it. NOW, THEREFORE , in consideration of the mutual promises and covenants herein contained, it is agreed as follows: City of Delray Beach Page 2 of 45 PART I DEFINITIONS, PURPOSE AND APPLICABLE CONDITIONS 1. DEFINITIONS (a ) "County" means Palm Beach County. (b ) "CDBG" means the Community Development Block Grant Program of the United States Department of Housing and Urban Development. (c ) "HCD" means Palm Beach County Housing and Community Development. (d ) "Municipality" means the City of Delray Beach . (e ) ³6WDWH´PHDQVWKH6WDWHRI)ORULGD'HSDUWPHQWRI&RPPXQLW\$IIDLUV (f ) ³&RQWUDFW´PHDQVContract Number 07DB-3V-10 -60-01-Z07 between Palm Beach County and the State of Florida, Department of Economic Opportunity. (g ) "HCD Approval" means the written approval of the HCD Director or his designee. (h ) "U.S. HUD" means the Secretary of Housing and Urban Development or a person authorized to act on its behalf. 2. PURPOSE The purpose of this Agreement is to state the covenants and conditions under which the Municipality will implement the Scope of Services set forth in Part II of this Agreement. All the beneficiaries of a project funded under this Agreement shall be low income households whose household incomes are within 80% of the median income for the West Palm Beach - Boca Raton Metropolitan Statistical Area adjusted by family size, as determined by HCD in its sole discretion. 3. APPLICABLE CONDITIONS The Municipality shall be bound by the Contract to the extent applicable to this Agreement. Furthermore, the conditions applicable to the activities undertaken in connection with this Agreement shall include but not be limited to those listed below (as they may be amended IURPWLPHWRWLPH 3DOP%HDFK&RXQW\¶VIDLOXUHWROLVWYHUEDWLP RUPDNHUHIHUHQFHWRD regulation, statute, ordinance, reference, or any other document affecting the Municipality, shall not relieve the Municipality of compliance with any applicable regulation, statute, ordinance, or any other document not listed below. The County reserves the right, but not the obligation, to inform the Municipality of any such applicable regulation, statute, ordinance, or any other document, and to require the Municipality to comply with the same. Community Development Block Grant, Final Rule, 24 C.F.R., Part 570; Florida Small and Minority Business Act, s 288.702-288.714, F.S.; Florida Coastal Zone Protection Act, s 161.52-161.58, F.S.; Local Government Comprehensive Planning and Land Development Regulation Act, Ch. 163, F.S.; Title I of the Housing and Community Development Act of 1974, as amended; Treasury Circular 1075 regarding drawdown of CDBG funds; Sections 290.0401-290.049, F.S.; Rule Chapter 9B-43, Fla Admin. Code.; Department of Community Affairs Technical Memorandums; HUD Circular Memorandums applicable to the Small Cities CDBG Program; Single Audit Act of 1984; National Environmental Policy Act of 1969 and other provisions of law which further the purpose of this Act; National Historic Preservation Act of 1966 (Public Law 89-665) as amended and Protection of Historic Properties (24 C.F.R., part 800); Preservation of Archaeological and Historical Data Act of 1966; Executive Order 11593 - Protection and Enhancement of Cultural Environment; Reservoir Salvage Act; Safe Drinking Water Act of 1974, as amended; Endangered Species Act of 1958, as amended; Executive Order 12898 - Environmental Justice Executive Order 11988 and 24 C.F.R. Part 55- Floodplain Management; The Federal Water Pollution Control Act of 1972, as amended (33 U.S.C., s 1251 et. seq.); Executive Order 11990 - Protection of Wetlands; Coastal Zone Management Act of 1968, as amended; Wild and Scenic Rivers Act of 1968, as amended; Clean Air Act of 1977; HUD Environmental Standards (24 C.F.R. Part 58); City of Delray Beach Page 3 of 45 Farmland Protection Policy Act of 1981; Clean Water Act of 1977; Davis - Bacon Act; Contract Work Hours and Safety Standards Act of 1962, 40 U.S.C. s. 327 et. seq.; The Wildlife Coordination Act of 1958, as amended; The Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1975 (42 U.S.C., s. 6901 et. seq.; Noise Abatement and Control: Departmental Policy Implementation, Responsibilities and Standards, 24 C.F.R. Part 51, Subpart B; Flood Disaster Protection Act of 1973, P.L. 92-234; Protection of Historic and Cultural Properties under HUD Programs, 24 C.F.R. Part 59; Coastal Zone Management Act of 1972, P.L. 92-583; Architectural and Construction Standards; Architectural Barriers Act of 1968, 42 U.S.C. 4151; Executive Order 11296, relating to the evaluation of flood hazards; Executive Order 11288, relating to prevention, control and abatement of water pollution; Cost-Effective Energy Conservation Standards, 24 C.F.R., Part 39; Section 8 Existing Housing Quality Standards, 24 C.F.R., Part 882; Coastal Barrier Resource Act of 1982; Federal Fair Labor Standards Act, 29 U.S.C. s. 201 et. seq.; Title VI of the Civil Rights Act of 1964 - Non-discrimination; Title VII of the Civil Rights Act of 1968 - Non-discrimination in housing; Age Discrimination Act of 1975; Executive Order 12892 - Fair Housing; Section 109 of the Housing and Community Development Act of 1974, Non-discrimination; Section 504 of the Rehabilitation Act of 1973 and 24 C.F.R., Part 8; Executive Order 11063 - Equal Opportunity in Housing; Executive Order 11246 - Non-discrimination; Section 3 of the Housing and Urban Development Act of 1968, as amended - Employment /Training of Lower Income Residents and Local Business Contracting; Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, P.L. 100-17, and 49 C.F.R. Part 24; Copeland Anti-Kickback Act of 1924; Hatch Act; Title IV Lead-Based Paint Poisoning Prevention Act (42 U.S.C. s. 1251 et. seq.); OMB Circulars A-87, A-122 and A-133, as revised; Administrative Requirements for Grants, 24 C.F.R. Part 85; Section 102 of the Department of Housing and Urban Development Reform Act of 1989 and 24 C.F.R. Part 12; Emergency Rule 9BER05-2, CDBG Disaster Recovery Funds; HUD program requirements for disaster recovery projects as published in Federal Register, Vol. 69, No. 237 (December 10, 2004) [Docket No. FR-4959 - N-01]. City of Delray Beach Page 4 of 45 PART II CDBG ELGIBLE ACTIVITIES AND NATIONAL OBJECTIVE The Municipality has proposed to rehabilitate and upgrade property to meet applicable housing and building codes in order to effectuate repairs of damages caused by Hurricane Wilma, activities determined to be Housing, Rehab Single Unit Residential, 24 CFR 570.202. The Municipality certifies that the eligible housing activities carried out under this Agreement will benefit low- and moderate income persons as described in the scope of work in Att DFKPHQW³$´DQGDVGHILQHGLQ CFR 570.208(a)(3). SCOPE OF SERVICES The Municipality shall, in a satisfactory and proper manner as determined by HCD, perform the tasks necessary to conduct the program outlined in Exhibit "A" as attached hereto and made a part hereof. PART III COMPENSATION, TIME OF PERFORMANCE, METHOD, AND CONDITIONS OF PAYMENT 1. MAXIMUM COMPENSATION The Municipality agrees to accept as full payment for services rendered pursuant to this Agreement the actual amount of budgeted, eligible, and HCD Director or designee-approved expenditures and encumbrances made by the Municipality under this Agreement, which shall not be unreasonably withheld. Said services shall be performed in a manner satisfactory to HCD. In no event shall the total compensation or reimbursement to be paid hereunder exceed the maximum and total authorized sum of $698,659.29 (as more specifically detailed in Exhibit ³A ´ hereto) for the period of November 18, 2011 through and including September 16, 2012 . Any funds not obligated by the expiration date of this Agreement shall automatically revert to the County. Reimbursement for Eligible Project Costs: The Municipality, having entered into a Third Agreement (R2011-0049), dated October 28, 2010 with the County from October 28, 2010 to September 16, 2011, for the implementation of funds to provide specified activities under the Community Development Block Grant, has not fully expended all of the aforementioned funds. Both parties are in mutual agreement to continue this project, and to utilize the remaining funds to provide specified activities for eligible activities. Therefore, the Municipality may submit reimbursement requests to HCD for eligible costs incurred for eligible activities expended during the eligibility period between October 28, 2010 through and including September 16, 2012 . 2. TIME OF PERFORMANCE The effective date of this Agreement and all rights and duties designated hereunder are contingent upon the timely release of funds for this project under State Contract Number 07DB-3V-10-60-01-Z07 . The effective date shall be the date of execution of this Agreement, and the services of the Municipality shall be undertaken and completed in light of the purposes of this Agreement. In any event, all services required hereunder shall be completed by the Municipality prior to September 16, 2012 . 3. METHOD OF PAYMENT The County agrees to make payments and to reimburse the Municipality for all budgeted costs permitted by Federal, State, and County guidelines. The Municipality shall not request reimbursement for payments made by the Municipality before the effective date of this Agreement, nor shall it request reimbursement for payments made after the expiration date of this Agreement, and in no event shall the County provide advance funding to the Municipality or any subcontractors hereunder. The Municipality shall request payments or reimbursements from the County by submitting to HCD proper documentation of expenditures consisting of originals of invoices, receipts, or other evidence of indebtedness, and when original documents cannot be presented, the Municipality may furnish copies if deemed acceptable by HCD. Each request for payment or reimbursement submitted by the Municipality shall be accompanied by a letter from the Municipality, provided on the 0XQLFLSDOLW\¶VOHWWHUKHDGUHIHUHQFLQJWKHQDPHRIWKHSURMHFWIXQGHGK HUHLQWKHGDWHRIWKLV Agreement and/or its document number, and containing a statement requesting the payment or City of Delray Beach Page 5 of 45 reimbursement and its amount, as well as the name and signature of the person making the request. Payment shall be made by the Palm Beach County Finance Department upon presentation of the aforesaid proper documentation of expenditures as approved by HCD. The Municipality may at any time after the expiration of this agreement request from the County reimbursement for payments made by the Municipality during the term of this Agreement by submitting to HCD the aforesaid proper documentation of expenditures, and the Palm Beach County Finance Department shall make payment as stated above, provided that HCD has determined that the funds allocated to the Municipality through this agreement are still available for payment, and provided that HCD approves such payment. 4. CONDITIONS ON WHICH PAYMENT IS CONTINGENT (a ) IMPLEMENTATION OF PROJECT ACCORDING TO REQUIRED PROCEDURES The Municipality shall implement this Agreement in accordance with applicable Federal, State, and County laws, ordinances and codes and with the procedures outlined in HCD Policies and Procedures memoranda. The Federal, State, and County laws, ordinances and codes are minimal regulations supplemented by more restrictive guidelines set forth by HCD. No payments for projects funded by more than one funding source will be made until a cost allocation plan has been approved by the HCD Director or designee. Should a project receive additional funding after the commencement of this Agreement, the Municipality shall notify HCD in writing within thirty (30) days of receiving notification from the funding source and submit a cost allocation plan for approval by the HCD Director or designee within for ty -five (45) days of said official notification. (b ) FINANCIAL ACCOUNTABILITY The County may have a financial systems analysis and/or an audit of the Municipality, or of any of its subcontractors, by an independent auditing firm employed by the County or by the County Internal Audit Department at any time the County deems necessary to determine if the project is being managed in accordance with Federal, State, and County requirements. (c ) SUBCONTRACTS Any work or services subcontracted hereunder shall be specifically by written contract, written agreement, or purchase order. All subcontracts shall be submitted by the Municipality to HCD and approved by HCD prior to execution of any subcontract hereunder. All subcontracts shall be subject to Federal, State and County laws and regulations. This includes ensuring that all consultant contracts and fee schedules meet the minimum standards as established by the Palm Beach County Engineering Department and U.S. HUD. Contracts for architecture, engineering, survey, and planning shall be fixed fee contracts. All additional services shall have prior written approval with support documentation detailing categories of persons performing work plus hourly rates including benefits, number of drawings required, and all items that justify the "Fixed Fee Contract." Reimbursables will be at cost. None of the work or services covered by this Agreement, including, but not limited to, consultant work or services, shall be subcontracted or reimbursed without prior written approval of the HCD Director or his designee. (d ) PURCHASING All purchasing for services and goods, including capital equipment, shall be made by purchase order or by a written contract and in conformity with the procedures prescribed by the Palm Beach County Purchasing Code, as well as Federal Manage- ment Circulars A-87, A-102, A-128, and 24CFR Part 85 (also known as the Common Rule), which are incorporated herein by reference. (e ) REPORTS, AUDITS, AND EVALUATIONS Payment will be contingent on the timely receipt of complete and accurate reports required by this Agreement, and on the resolution of monitoring or audit finding s identified pursuant to this Agreement. City of Delray Beach Page 6 of 45 (f ) ADDITIONAL HCD, COUNTY, AND U.S. HUD REQUIREMENTS HCD shall have the right under this Agreement to suspend or terminate payments if after 15 days written notice the Municipality has not complied with any additional conditions that may be imposed, at any time, by HCD, the County, the State, or U.S. HUD. (g ) PRIOR WRITTEN APPROVALS - SUMMARY The following activities among others require the prior written approval of the HCD Director or designee to be eligible for reimbursement or payment: (a) All subcontracts and agreements pursuant to this Agreement; (b) All change orders; (c) All requests to utilize uncommitted funds after the expiration of this Agreement for programs described in Exhibit ³A ´. (h ) All program income earned by the Municipality from activities financed, in whole or in part, by funds provided hereunder must be reported and returned to HCD as indicated herein. Such income would include, but not be limited to, income from service fees, sale of commodities, and rental or usage fees. Such income shall only be used to undertake the activities authorized by this Agreement. Accounting and disbursement of such income shall comply with OMB Circular A-110 and other applicable regulations incorporated herein by reference. The requirements of this section shall survive the expiration of this Agreement. PART IV GENERAL CONDITIONS 1. OPPORTUNITIES FOR RESIDENTS AND CIVIL RIGHTS COMPLIANCE The Municipality agrees that no person shall on the ground of race, color, ancestry, disability, national origin, religion, age, financial status, familial status, marital status, sex, sexual orientation, or gender identity or expression, be excluded from the benefits of, or be subjected to discrimination under any activity carried out by the performance of this Agreement. Upon receipt of evidence of such discrimination, the County shall have the right to terminate this Agreement. To the greatest extent feasible, lower-income residents of the project areas shall be given opportunities for training and employment; and to the greatest feasible extent eligible busine ss concerns located in or owned in substantial part by persons residing in the project areas shall be awarded contracts in connection with the project. The Municipality shall comply with the Section 3 Clause of the Housing and Community Development Act of 1968. 2. OPPORTUNITIES FOR SMALL AND MINORITY/WOMEN-OWNED BUSINESS ENTERPRISES In the procurement of supplies, equipment, construction, or services to implement this Agreement, the Municipality shall make a positive effort to utilize small business and minority/women-owned business enterprises of supplies and services, and provide these sources the maximum feasible opportunity to compete for contracts to be performed pursuant to this Agreement. To the maximum extent feasible , these small business and minority/women- owned business enterprises shall be located in or owned by residents of the CDBG areas designated by Palm Beach County in the CDBG Annual Consolidated Plan approved by U.S. HUD. 3. PROGRAM BENEFICIARIES All the beneficiaries of a project funded under this Agreement shall be low income households whose household incomes are within 80% of the median income for the West Palm Beach - Boca Raton Metropolitan Statistical Area adjusted by family size, as determined by HCD in its sole discretion. The project funded under this Agreement shall assist beneficiaries as defined above for the time period designated in this Agreement. The Municipality shall provi GHZULWWHQYHULILFDWLRQRIFRPSOLDQFHWR+&'XSRQ+&'¶VUHTXHVW 4. EVALUATION AND MONITORING The Municipality agrees that HCD will carry out periodic monitoring and evaluation activities City of Delray Beach Page 7 of 45 as determined necessary by HCD or the County and that payment, reimbursement, or the continuation of this Agreement is dependent upon satisfactory evaluation conclusions based on the terms of this Agreement. The Municipality agrees to furnish upon request to HCD, the County, or the County's designees copies of transcriptions of such records and information as is determined necessary by HCD or the County. The Municipality shall submit status reports required under this Agreement on forms approved by HCD to enable HCD to evaluate progress. The Municipality shall provide information as requested by HCD to enable HCD to complete reports required by the County or HUD. The Municipality shall allow HCD, the County, the State, or HUD to monitor the Municipality on site. Such visits may be scheduled or unscheduled as determined by HCD, the State, or HUD. Due to the strict grant completion deadlines, performance requirements as detailed in ([KLELW³$´ZLOOEHFORVHO\PRQLWRUHGE\+&'6XEVWDQGDUGSHUIRU PDQFHDV determined by HCD, will constitute noncompliance with this Agreement . If corrective action is not undertaken by the Agency within a reasonable period of time after being notified by HCD, contract termination or suspension procedures will be initiated. The Agency agrees that that payment, reimbursement, or the continuation of this Agreement is dependent upon satisfactory evaluation conclusions based on the terms of this Agreement. 5. AUDITS AND INSPECTIONS At any time during normal business hours and as often as HCD, the County, U.S. HUD, or the Comptroller General of the United States may deem necessary, there shall be made available by the Municipality to HCD, the County, U.S. HUD, or the Comptroller General for examination all its records with respect to all matters covered by this Agreement. If during the year, the Municipality expends over $500,000 of Federal awards, the Municipality shall comply with the provisions of OMB Circular A-133. The Municipality shall submit a single audit, including any management letter, made in accordance with the general program requirements of OMB Circulars A-110, A-122, A-133, and other applicable regulations within the earlier of, 30 days after receipt of the auditor's report(s), or nine (9) months after the end of the audit period in which HCD-administered funds are expended. S DLGDXGLWVKDOOEHPDGHE\D&HUWLILHG3XEOLF$FFRXQWDQWRIWKH0XQLF LSDOLW\¶VFKRRVLQJ VXEMHFWWRWKH&RXQW\¶VDSSURYDO,QWKHHYHQWWKH0XQLFLSDOLW\DQWLFL SDWHVDGHOD\LQ producing such audit, the Municipality shall request an extension in advance of the deadline. The cost of said audit shall be borne by the Municipality. In the event the Municipality is exempt from having an audit conducted under A-133, the Municipality shall submit audited financial statements and/or the County reserves the right t RFRQGXFWD³OLPLWHGVFRSHDXGLW´RI the Municipality as defined by A-133. The County will be responsible for providing technical assistance to the Municipality, as deemed necessary by the County. 6. UNIFORM ADMINISTRATIVE REQUIREMENTS The Municipality agrees to comply with the applicable uniform administrative requirements as described in Federal Community Development Block Grant Regulations 24 CFR 570.502. 7. REVERSION OF ASSETS Upon expiration of this Agreement, the Municipality shall transfer to the County any CDBG funds on hand at the time of expiration and any accounts receivable attributable to the use of &'%*IXQGV$Q\UHDOSURSHUW\XQGHUWKH0XQLFLSDOLW\¶VFRQWUROXSRQH[SLUDWL RQRIWKLV Agreement which was acquired or improved, in whole or pa rt , with CDBG funds in the excess of $25,000 must either be used to meet one of the national objectives in Federal Community Development Block Grant Regulations 24 CFR 570.508 for a period of five (5) years after expiration of this Agreement (unless a longer period is specified elsewhere in this Agreement), or, the Municipality shall pay the County an amount equal to the current market value of the property less any portion of the value attributable to expenditures of non-CDBG funds for the acquisition of, or improvement to, the property. 8. DATA BECOMES COUNTY PROPERTY All reports, plans, surveys, information, documents, maps, and other data procedures developed, prepared, assembled, or completed by the Municipality for the purpose of this Agreement shall be made available to the County by the Municipality at any time upon request by the County or HCD. Upon completion of all work contemplated under this Agreement copies of all documents and records relating to this Agreement shall be surrendered to HCD if requested. In any event , the Municipality shall keep all documents City of Delray Beach Page 8 of 45 and records for five (5) years after expiration of this Agreement. 9. INDEMNIFICATION Each party to this Agreement shall be liable for its own actions and negligence and, to the extent permitted by law, the County shall indemnify, defend, and hold harmless the 0XQLFLSDOLW\DJDLQVWDQ\DFWLRQVFODLPVRUGDPDJHVDULVLQJRXWRI WKH&RXQW\¶VQHJOLJHQFHLQ connection with this Agreement, and the Municipality shall indemnify, defend, and hold KDUPOHVVWKH&RXQW\DJDLQVWDQ\DFWLRQVFODLPVRUGDPDJHVDULVLQJ RXWRIWKH0XQLFLSDOLW\¶V negligence in connection with this Agreement. The Municipality shall also hold the State harmless against all claims of whatever nature arising out of the Munic LSDOLW\¶VSHUIRUPDQFH of work under this Agreement, to extent allowed and required by law. The foregoing indemnification shall not constitute a waiver of sovereign immunity beyond the limits set forth in Florida Statute, Section 768.28, nor shall the same be construed to constitute DJUHHPHQWE\HLWKHUSDUW\WRLQGHPQLI\WKHRWKHUSDUW\IRUVXFKRWKHUSDUW \¶VQHJOLJHQWZLOOIXO or intentional acts or omissions. The Municipality shall hold the County harmless and shall indemnify the County for funds which the County is obligated to refund the State or the Federal Government arising out of the conduct of activities and administration of the Municipality. The provisions of this indemnification clause shall survive the termination of this Agreement. 10. INSURANCE BY MUNICIPALITY: Without waiving the right to sovereign immunity as provided by s. 768.28 F.S., the Municipality acknowledges to be self-insured for General Liability and Automobile Liability under Florida sovereign immunity statutes with coverage limits of $200,000 Per Person and $300,000 Per Occurrence; or such monetary waiver limits that may change and be set forth by the legislature. In the event the Municipality maintains third-party Commercial General Liability and Business Auto Liability in lieu of exclusive reliance of self-insurance under s.768.28 F.S., the Municipality shall agree to maintain said insurance policies at limits not less than $500,000 combined single limit for bodily injury or property damage The Municipality agrees to maintain or to be self-LQVXUHGIRU:RUNHUV¶&RPSHQVDWLRQ (PSOR\HU¶V/LDELOLW\LQVXUDQFHLQDFFRUGDQFHZLWK)ORULGD6WDWXWH When requested, the Municipality shall agree to provide an affidavit or Certificate of Insurance evidencing insurance, self-insurance and/or sovereign immunity status, which County agrees to recognize as acceptable for the above mentioned coverage. Compliance with the foregoing requirements shall not relieve the Municipality of its liability and obligations under this Agreement. ASBESTOS LEGAL LIABILITY, OR SIMILAR THIRD PARTY POLLUTION LIABILITY In the event that asbestos or a similar pollution is indicated in a subject property, the Municipality shall ensure that the Contractor shall agree to maintain Pollution Liability, or similar Asbestos Legal Liability, at a minimum limit not less than $1,000,000 per occurrence/$2,000,000 annual aggregate providing coverage for damages, including but not limited to, third-party liability, clean up, corrective action including assessment, remediation and defense costs. The coverage may be provided on a stand-alone policy or by way of endorsement to the Commercial General Liability policy. When a self-insured retention or deductible exceeds $10,000, the County reserves the right, but not the obligation, to review and request a copy of the C RQWUDFWRU¶V most recent annual report or audited financial statements to evaluating the acceptability of a higher self-insured retention or deductible in relationship to the C RQWUDFWRU¶V financial condition. Coverage shall be endorsed to include ³3DOP%HDFK&RXQW\%RDUGRI&RXQW\&RPPLVVLRQHUVD3ROLWLFDO6XEGLYLVLRQRIWKH6WDWHRI )ORULGDLWV2IILFHUV(PSOR\HHVDQG$JHQWV´ as an Additional Insured. 11. MAINTENANCE OF EFFORT The intent and purpose of this Agreement is to increase the availability of the Municipality's services. This Agreement is not to substitute for or replace existing or planned projects or activities of the Municipality. The Municipality agrees to maintain a level of activities and expenditures, planned or existing, for projects similar to those being assisted under this City of Delray Beach Page 9 of 45 Agreement which is not less than that level existing prior to this Agreement. 12. CONFLICT OF INTEREST The Municipality covenants that no person who presently exercises any functions or responsibilities in connection with the Project, has any personal financial interest, direct or indirect, in the target areas or any parcels therein, which would conflict in any manner or degree with the performance of this Agreement and that no person having any conflict of interest shall be employed by or subcontracted by the Municipality. Any possible conflict of interest on the part of the Municipality or its employees shall be disclosed in writing to HCD provided, however, that this paragraph shall be interpreted in such a manner so as not to unreasonably impede the statutory requirement that maximum opportunity be provided for employment of and participation of low and moderate-income residents of the project area. 13. CITIZEN PARTICIPATION The Municipality shall cooperate with HCD in the implementation of the Citizen Participation Plan by establishing a citizen participation process to keep residents informed of the activities the Municipality is undertaking in carrying out the provisions of this Agreement. Representatives of the Municipality shall attend meetings and assist HCD in the implementation of the Citizen Participation Plan, as requested by HCD. 14. RECOGNITION All facilities purchased or constructed pursuant to this Agreement shall be clearly identified as to funding source. The Municipality will include a reference to the financial support herein provided by HCD in all publications and publicity. In addition, the Municipality will make a good faith effort to re FRJQL]H+&'¶VVXSSRUWIRUDOODFWLYLWLHVPDGHSRVVLEOHZLWKIXQGVPDGH available under this Agreement. 15. AGREEMENT DOCUMENTS The following documents are herein incorporated by reference and made a part hereof, and shall constitute and be referred to as the Agreement; and all of said documents taken as a whole constitute the Agreement between the parties hereto and are as fully a part of the Agreement as if they were set forth verbatim and at length herein: (a ) This Agreement, including its Exhibits, which the County may revise from time to time, as required, and to be provided for use by the Municipality; (b ) Office of Management and Budget Circulars A-87, A-102, A-133, and 24CFR Part 85; (c ) Title VI of the Civil Rights Act of 1964, the Age Discrimination Act of 1975, and Title II of the Americans with Disabilities Act of 1990; (d ) Executive Orders 11246, 11478, 11625, 12432, the Davis Bacon Act, and Section 3 of the Housing and Community Development Act of 1968, and the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended; (e ) Executive Orders 11063, 12259, 12892, the Fair Housing Act of 1988, and Section 109 of the Housing and Community Development Act of 1974, as amended; (f ) Florida Statutes, Chapter 112; (g ) Pa lm Beach County Purchasing Code; (h ) Federal Community Development Block Grant Regulations (24 CFR Part 570), as amended; (i ) 7KH0XQLFLSDOLW\¶VSHUVRQQHOSROLFLHVDQGMREGHVFULSWLRQV DQG (j) 7KH0XQLFLSDOLW\¶V&HUWLILFDWHRI,QVXUDQFH (k ) Contract Number 07DB-3V-10-60-01-Z07 between Palm Beach County and the State of Florida, Department of Community Affairs. The Municipality shall keep an original of this Agreement, including its Exhibits, and all Amendments thereto, on file at its principal office. 16. TERMINATION In event of termination for any of the following reasons, all finished or unfinished documents, data studies, surveys, drawings, maps, models, photographs, reports prepared, and capital equipment secured by the Municipality with funds under this Agreement shall be returned to HCD or the County. In the event of termination, the Municipality shall not be relieved of liability to the County for damages sustained by the County by virtue of any breach of the Agreement by the Municipality, and the County may withhold any payment to the Municipality for set-off purposes until such time as the exact amount of damages due to the City of Delray Beach Page 10 of 45 County from the Municipality is determined. (a ) TERMINATION FOR CAUSE If through any cause either party shall fail to fulfill in a timely and proper manner its obligations under this Agreement, or if either party shall violate any of the covenants, agreements, or stipulations of this Agreement, either party shall thereupon have the right to terminate this Agreement in whole or part by giving a fifteen (15) working day written notice of such termination to the other party and specifying therein the effective date of termination. (b ) TERMINATION DUE TO CESSATION In the event the grant to the County under the Contract is suspended or terminated, this Agreement shall be suspended or terminated effective on the date the Sate specifies. 17. SEVERABILITY OF PROVISIONS If any provision of this Agreement is held invalid, the remainder of this Agreement shall not be affected thereby if such remainder would then continue to conform to the terms and requirements of applicable law. 18. AMENDMENTS The County may, at its discretion, amend this Agreement to conform with changes required by Federal, State, County, or U.S. HUD guidelines, directives, and objectives. Such amendments shall be incorporated by written amendment as a part of this Agreement and shall be subject to approval of the Palm Beach County Board of County Commissioners. Except as otherwise provided herein, no amendment to this Agreement shall be binding on either party unless in writing, approved by the Board of County Commissioners and the governing body of the Municipality, and signed by both parties. 19. NOTICES All notices required to be given under this Agreement shall be sufficient when delivered to HCD at its office at 100 Australian Avenue, Suite 500, West Palm Beach, Florida 33406, and to the Municipality when delivered to its address on page one (1) of this Agreement. 20. INDEPENDENT AGENT AND EMPLOYEES The Municipality agrees that, in all matters relating to this Agreement, it will be acting as an independent agent and that its employees are not Palm Beach County employees and are not subject to the County provisions of the law applicable to County employees relative to employment, hours of work, rates of compensation, leave, unemployment compensation and employee benefits. 21. NO FORFEITURE The rights of the County under this Agreement shall be cumulative and failure on the part of the County to exercise promptly any rights given hereunder shall not operate to forfeit or waive any of the said rights. 22. PUBLIC ENTITY CRIMES As provided in F.S. 287.133 , by entering into this Agreement or performing any work in furtherance hereof, the Municipality certifies that it, its affiliates, suppliers, subcontractors and consultants who will perform hereunder, have not been placed on the convicted vendor list maintained by the State of Florida Department of Management Services within the thirty-six (36) months immediately preceding the date hereof. This notice is required by F.S. 287.133 (3)(a). 23. PALM BEACH COUNTY OFFICE OF THE INSPECTOR GENERAL Pursuant to Palm Beach County Code Sections 2-421 to 2-440, the County has established the Office of the Inspector General, which is authorized and empowered to review past, present and proposed County agreements, contracts, transactions, accounts and records. All parties doing business with the County and receiving County funds, including the Municipality, shall fully cooperate with the Inspector General. The Inspector General has the power to subpoena witnesses, administer oaths, require the production of records, and to audit, investi gate, monitor, and inspect the activities of the Municipality, its officers, agents, employees, and lob byists in order to ensure compliance with this Agreement and to detect waste, corruption and fraud. City of Delray Beach Page 11 of 45 24. COUNTERPARTS OF THE AGREEMENT This Agreement, consisting of forty-five (45) enumerated pages which include the Exhibits referenced herein, shall be executed in three (3) counterparts, each of which shall be deemed to be an original, and such counterparts will constitute one and the same instrument. A copy of this Agreement shall be filed with the Clerk of the Circuit Court in and for Palm Beach County. 25. ENTIRE UNDERSTANDING This Agreement and its provisions merge any prior agreements, if any, between the parties hereto and constitutes the entire understanding. The parties hereby acknowledge that there have been and are no representations, warranties, covenants, or undertakings other than those expressly set forth herein. WITNESS our Hands and Seals on this day of , 20 . (MUNICIPALITY SEAL BELOW) CITY OF DELRAY BEACH By : Nelson S. McDuffie, Mayor By: Chevelle D. Nubin, City Clerk BY: Attorney for Municipality (Signature Optional) PALM BEACH COUNTY, FLORIDA, a Political Subdivision of the State of Florida FOR ITS BOARD OF COUNTY COMMISSIONERS By: Shannon R. LaRocque-Baas, P.E. Assistant County Administrator Approved as to Form and Legal Sufficiency Approved as to Terms and Conditions Dept. of Housing and Community Development By: By: Tammy K. Fields Journey Beard, Director Senior Assistant County Attorney Contract Development and Quality Control City of Delray Beach Page 12 of 45 EXHIBIT ³A ´ WORK PROGRAM NARRATIVE I. THE PARTIES AGREE THAT: A. PRIOR AGREEMENTS: The project contained in this Agreement is a continuation of the project contained in a prior Agreement between the Municipality and the County (R2008-1482) dated January 31, 2008, as amended by Amendment 001 (R2009-0208) on February 3, 2009, and by Amendment 002 (R2009-1972) on November 17, 2009 (collectively KHUHLQDIWHUWKH³)LUVW$JUHHPHQW´ DQGDFRQWLQXDWLRQRIWKHSURMHFWFRQW DLQHGLQDS ri or Agreement between the Municipality and the County (R2010-1282), dated June 22, 2010 (here LQDIWHUWKH³6HFRQG$JUHHPHQW´ and a continuation of the project contained in a prior Agreement between the Municipality and the County (R2011-0049) dated October 28, 2010 , (hereinafter t KH³7KLUG$JUHHPHQW´ to make available $698,659.29 in 2005 Disaster Recovery Initiative Program (DRI-2) funds to assist a minimum of twenty-four (24) households in the City of Delray Beach in order to rehabilitate and upgrade these structures to meet applicable housing and building codes, and in order to effectuate repairs of damages caused by Hurricane Wilma. The terms and conditions of the First Agreement, Second Agreement and Third Agreement are incorporated herein by reference. B. ELIGIBLE PAYMENTS AND/OR REIMBURSEMENTS: All payments and/or reimbursements deemed eligible under the First, Second, and Third Agreements shall be eligible under this Agreement. C. PROJECT ACCOMPLISHMENTS: The project requirements contained in the First, Second and Third Ag reements are repeated herein in substantial form. Changes have been made in order to update these requirements for this Agreement. The parties recognize that the following project activities have been accomplished, and where indicated below, the County has paid and/or reimbursed the Municipality for such project activities: (1 ) The Municipality has accepted applications, processed applicant files, received funding approval from the County for homeowners, expended funds on rehabilitation activities, and received reimbursement from the County in the amount of $370,606.69 for rehabilitation construction costs and related expenses. (2 ) The Municipality has employed an Inspector in connection with the rehabilitation activities outlined herein, submitted payroll forms and related documents for the work of the Inspector, and received reimbursement from the County in the amount of $35,881. (3) The Municipality has completed the rehabilitation of twenty (20) housing units. II. THE MUNICIPALITY AGREES TO: A. OVERVIEW: The purpose of this Agreement is to make funds available to the Municipality under the State of Florida funded 2005 Disaster Recovery Initiative Program to enable the Municipality to implement a housing UHKDELOLWDWLRQSURJUDP ³3URJUDP´ LQFRQ junction with which it may provide technical and financial assistance to qualified low income property owners (as defined herein) who reside in detached one dwelling structures (used entirely for residential purposes) and located within its Municipal boundaries. Assistance under the Program shall be provided in order to rehabilitate and upgrade these structures to meet applicable housing and building codes and in order to effectuate repairs of damages caused by Hurricane Wilma. Work on these properties may include, but is not limited to, roofing, electrical, plumbing, structural repairs, painting, doors, windows, and hurricane protection, provided that these repairs are practical and feasible. The Municipality will assist a minimum of twenty four (24) households. The final number of homes addressed with funding made available under this Agreement shall depend on the actual cost of undertaken projects, and therefore may vary from the stated number. B. REGULATORY STANDARDS: The regulatory standards applicable to the activities undertaken in connection with this Agreement shall include but not be limited to the ones listed below, and those enumerated City of Delray Beach Page 13 of 45 HOVHZKHUHLQWKLV$JUHHPHQW3DOP%HDFK&RXQW\¶VIDLOXUHWROLV WYHUEDWLPRUPDNH reference to a regulation, statute, ordinance, reference, or any other document affecting the Municipality, shall not relieve the Municipality of compliance with any applicable regulation, statute, ordinance, or any other document not listed below. The County reserves the right, but not the obligation, to inform the Municipality of any such applicable regulation, statute, ordinance, or any other document, and to require the Municipality to comply with the same. HUD: U. S. Department of Housing and Urban Development regulations (24 CFR Part 570). HUD: U. S. Department of Housing and Urban Development regulations (24 CFR Part 35). HUD: HUD Guidelines for the Evaluation and Control of Lead Hazards in Housing. TITLE X: Title X - Residential Lead-Based Paint Hazard Reduction Act of 1992. EPA: U.S. Environment Protection Agency regulations (40 CFR Part 745). EPA: U.S. Environment Protection Agency regulations (40 CFR Part 61). OSHA: Occupational Safety and Health Administration regulations (29 CFR Part 1926). PBC: Palm Beach County Purchasing Code. The Municipality recognizes and understands that the applicable regulations, statutes, ordinances, or all other applicable documents may be amended from time to time during the term of this Agreement. The Municipality agrees to abide by all such amendments as relates to the activities undertaken in connection with this Agreement, and as determined by HCD. The Municipality recognizes and understands that during the term of this Agreement, new regulations, statutes, ordinances, and other applicable documents may be issued that affect the activities undertaken in connection with this Agreement. The Municipality agrees to abide by all such new regulations, statutes, ordinances, and other applicable documents as determined by HCD. Should, after the execution of this Agreement, it be discovered that requirements concerning certain activities to be undertaken in connection with the Agreement are absent, the parties agree to abide by the decision of the State on such requirements. In the event that the State elects not to provide a decision on an absent requirement, or allows for a local choice in the matter, the parties agree that all requirements pertaining to any such matter shall be at the discretion of the County. C. PROGRAM ADMINISTRATOR: 7KH0XQLFLSDOLW\VKDOOGHVLJQDWHDQHPSOR\HHRIWKH0XQLFLSDOLW \WREHWKH³3URJUDP $GPLQLVWUDWRU´LQFRQQHFWLRQZLWKSURMHFWVXQGHUWDNHQXQGHUWKLV$JUHHPHQWDQGQRWLI\+&' of the identity if such Program Administrator. The Program Administrator shall act as the primary contact person between HCD staff and persons designated by the Municipality to be involved in implementing projects undertaken under this Agreement. In addition to channeling communication from and to HCD and the Municipality, and from and to HCD and the above described designated persons, the Program Administrator shall review all materials and files submitted by the Municipality to HCD in connection with this Agreement, and shall be the recipient of all materials and files provided by HCD to the Municipality. The Program Administrator shall track and maintain awareness of the status and progress of all undertaken projects and submit the reports required hereunder. D. PROGRAM INSPECTOR: 7KH0XQLFLSDOLW\VKDOOHPSOR\DQ³,QVSHFWRU´LQFRQQHFWLRQZLWKWKLV$JUHHPHQW7KH Inspector shall be able to carry out the tasks described in this Agreement and be able to demonstrate the qualifications that enable him/her to do so. The Inspector shall at minimum perform inspections of residential structures for compliance with housing and building codes, determine the feasibility of undertaking rehabilitation, prepare construction specifications and cost estimates, review construction bids, inspect rehabilitation construction work in progress, and review and approve contractor payment requests. The Inspector shall be able to review lead-based paint inspection and risk assessment reports and determine the actions to be taken to comply with federal lead-based paint regulations, maintain inspection records and reports, prepare change orders, initiate various notification letters and conduct necessary correspondence. If the Municipality wishes to request HCD for reimbursement of that portion of the ,QVSHFWRU¶VVDODU\ZKLFKLVDWWULEXWDEOHWRZRU k done in connection with this Agreement, then City of Delray Beach Page 14 of 45 the Municipality shall provide HCD the following as a pre-requisite to its reimbursement request for each Inspector: - Documentation showing that the position of the Inspector (if such position was filled as a QHZSRVLWLRQDVDUHVXOWRIWKLV$JUHHPHQW ZDVFRPSHWLWLYHO\V ROLFLWHGSULRUWRWKH,QVSHFWRU¶V appointment to the position, and showing that the opening for this position was advertised in a public forum to elicit applications from other prospective applicants. - A copy of the letter notifying the Inspector of his/her appointment to this position. - Documentation showing the annual or hourly salary paid for the position of Inspector. - Personnel policy relating to vacation and sick leave. When requestin JUHLPEXUVHPHQWIRUWKH,QVSHFWRU¶VZRUNKRXUVLQFRQQHFWLRQZLWKWKLV Agreement, the Municipality shall submit the following: - With each reimbursement request, a copy of the daily time sheets which account for all ti me worked by the Inspector on all assignments. These time sheets must be detailed enough to allow HCD staff to distinguish between hours worked on rehabilitation projects being pursued in connection with this Agreement and other hours worked by the Inspector. The time sheets must also show the specific tasks undertaken by the Inspector on such projects as well as the time taken to complete each task. The Municipality shall ensure that time is kept to regular hours as much as possible and shall ensure that no excessive overtime is spent on these projects. - With each reimbursement request, copies of the payrolls and paychecks to the Inspector corresponding to the above time sheets, as well as copies of documents proving that FICA was paid for the period corresponding to the one for which the reimbursement is being claimed. E. PROGRAM ADVISOR: 7KH0XQLFLSDOLW\VKDOOHPSOR\DQ³$GYLVRU´LQFRQQHFWLRQZLWKWKLV$JUHHPHQW7KH Advisor may be an employee of the Municipality or a qualified consultant under contract with the Municipality. If the Municipality elects to retain a consultant to provide the services of an Advisor, and if it wishes to be reimbursed by the County for its consultant expenses, the Municipality shall procure the services of such consultant in accord with the requirements of this Agreement. In such instance, the Municipality shall submit its request for proposal for consultant services package to HCD and obtain a letter of approval prior to soliciting proposals, and the Municipality shall obtain HCD approval prior to awarding the contract for these consultant services. The Advisor shall be able to carry out the tasks described in this Agreement and be able to demonstrate the qualifications that enable him/her to do so. The Advisor shall at minimum perform a variety of program implementation tasks including the participant application process, the applicant eligibility determination process, financial underwriting, loan closing, and expenditure tracking and reconciliation. F. OUTREACH AND APPLICANT SELECTION: The Municipality ¶VRXWUHDFKHIIRUWLQSXEOLFL]LQJWKHUHKDELOLWDWLRQSURJUDPEHLQJXQGHUWDN HQ in connection with this Agreement shall include announcements at public meetings, announcements in local newspapers, distribution of flyers/brochures to affected residents, and t KHSODFHPHQWRIQRWLFHVDW&LW\+DOODQGWKH0XQLFLSDOLW\¶VQHLJKERUKRRGUHVRXUFHFH QWHU The Municipality shall develop, publish to its residents, and use its own selection method for applicants to be funded under this Agreement, provided that such method is fair and equitable, and provided that it does not in any manner violate any of the provisions contained in this Agreement. G. THE APPLICATION PROCESS: The Municipality shall invite each selected applicant to submit a written, signed, and dated application (for the purposes of this Agreement, all owners of a property to be rehabilitated who reside at such property shall be regarded as applicants, and "applicant" as referred to herein shall also mean the plural term "applicants"). The Municipality shall advise the applicant of the Program's objective and explain the type of work undertaken under the Program without specific reference to the applicant's property. Applicants shall be advised that the primary purpose of the Program is to address property deficiencies to the extent practicable and feasible to meet applicable housing and building code standards and to effectuate repairs of damages caused by Hurricane Wilma. Applicants shall be advised of Program requirements to receive assistance and the steps City of Delray Beach Page 15 of 45 involved in the rehabilitation process and their role in it. Applicants shall also be informed of the financing arrangements available under the Program. The application shall solicit information about the applicant such as: - Name of applicant(s) and any other household members residing at the property (whether related to the property owner or not) and relationship to property owner(s) as well as contact telephone numbers. - Address of the property, legal description and the Property Control Number. - Social security numbers, dates of birth of applicant(s) and ages of household members. - Employment information on all household members. - All other income for the household including: wages, salaries, bonuses, pensions, social security, disability, unemployment, self employment, rental income, interest, dividends, public assistance, alimony, child support, and income derived from assets. - A listing of all assets owned by the applicant(s) and their associated value. - Information about any mortgages on the property. - Insurance information including name of insurer, agent, address, policy number, and type, amount, and dates of coverage. In conjunction with accepting an application from a selected applicant, each such applicant shall be asked to submit documentation in support of the application such as copies of: deed, mortgage(s), pay stubs, driver's license, social security card, death certificates, the last IRS tax return (last two returns for self-employed persons), and copies of insurance policies. 7KH0XQLFLSDOLW\VKDOOREWDLQIURPWKHDSSOLFDQWIRUWKHDSSOLFDQW¶VIL OHDFRS\RIWKHGULYHU¶V license or other picture identification document for each adult household member of the applicant, and shall obtain a copy of the social security card for each household member. At the time of application submission, a preliminary review shall be made of the information provided and the applicant shall be requested to sign certain pertinent release forms that enable the Municipality to verify information in the application with outside parties. Other such forms shall also be signed by the applicant at later times as the need arises in the proce ss of reviewing the application. These release forms may include, but are limited to: employment verification, social security benefits verification, and pension verification. In order to avoid any duplication of benefits, applicants shall be asked to provide signed certifications regarding the receipt of any insurance, SBA, or FEMA payments for damages to the property resulting from Hurricane Wilma. The Municipality shall devise a certification form to be used by each applicant to certify whether or not the applicant received any LQVXUDQFHSD\PHQWV ZKLFKFHUWLILFDWLRQIRUPVKDOOEHSODFHGLQWKHDSSOL FDQW¶VILOH In addition, each applicant shall be required to sign a release form to be submitted to FEMA (provided herein as Exhibit ³B ´) for the purpose of verifying the receipt of any FEMA payments in connection with damages resulting from Hurricane Wilma. The Municipality shall fax this release form to FEMA with a request for information, regardless of whether the DSSOLFDQWDSSOLHGIRURUUHFHLYHGDQ\)(0$DVVLVWDQFHDQGSODFH)(0$¶VUHVSRQVHLQWKH DSSOLFDQW¶VILOH7KH&RXQW\VKDOOSURYLGHWKH0XQLFLSDOLW\ZL th FEMA contact information at a later date. Furthermore, the Municipality shall verify whether the applicant received any assistance from the United States Small Business Administration (SBA) by verifying the SUHVHQFHRIWKHDSSOLFDQW¶VQDPHRQDOLVWRI SBA recipients to be provided by the County to the Municipality at a later date. The Advisor shall complete, sign and place a form in the DSSOLFDQW¶VILOHLQGLFDWLQJZKHWKHUWKHDSSOLFDQW¶VQDPHDSSHDUVRQ6%$¶VOLV t. At time of application, the Municip DOLW\VKDOOHVWDEOLVKZKHWKHUWKHDSSOLFDQW¶VSURSHUW\ suffered damages from Hurricane Wilma. As a condition for receiving assistance, each applicant must be documented as having had damage to their home from Hurricane Wilma by means of: - a certification from the Municipality, or - a copy of a FEMA verification/claim, or - an insurance claim, or - an affidavit from the applicant that is attested by the Municipality. At time of application, the Municipality shall provide each applicant with a lead hazard LQIRUPDWLRQSDPSKOHWHQWLWOHG³3URWHFW<RXU)DPLO\)URP/HDG,Q<RXU+RPH´LQIRUPLQJ applicants of the potential risk of lead hazard exposure from renovation activity that may be performed in their homes, and the Municipality shall obtain from the applicant a signed City of Delray Beach Page 16 of 45 receipt indicating that the applicant has received the stated pamphlet which receipt shall be SODFHGLQWKHDSSOLFDQW¶VILOH In conjunction with accepting an application from a selected applicant, the Municipality shall determine and document WKH³\HDUEXLOW´RIWKHDSSOLFDQW¶VKRPH7KHVRXUFHWREHXVHGIRU ³\HDUEXLOW´LQIRUPDWLRQVKDOOEHWKH3DOP%HDFK&RXQW\3URSHUW\$SSUDLVHUZ KRVHGDWDPD\ be accessed through the internet at http://www.co.palm-beach.fl.us/papa/index.htm . The Municipa OLW\VKDOOREWDLQDSULQWRXWRIWKH³\HDUEXLOW´LQIRUPDWLRQDQGSODFHLWLQWKHILOHIRU each applicant. H. THE INITIAL INSPECTION PROCESS: The Inspector shall perform an inspection of the property proposed for rehabilitation for the purpose of assessing the conditions of the property and to determine if rehabilitation is necessary and feasible. If the Inspector determines that the property did not sustain any damages from Hurricane Wilma, then the Municipality shall reject the application for assistance by providing the applicant written notice of such determination. If the Inspector determines that the property did sustain damages from Hurricane Wilma (as supported by the documentation mentioned above), then the Inspector shall determine if the repair of such damages as well as the work needed to address all housing and building code violations is feasible within the funding limits of the program. In making this determination special attention shall be given to un-permitted additions and un-permitted enclosures. Un-permitted additions and un-permitted enclosures that can be practically improved as part of the rehabilitation process, and within the funding limits, may be undertaken. Un-permitted additions and un-permitted enclosures that cannot be practically improved as part of the rehabilitation process, and within the funding limits, shall be removed in conjunction with the rehabilitation process. 5HKDELOLWDWLRQVKDOOEHGHHPHG³IHDVLEOH´ZKHQWKHFRVWRIFRPSO\L QJZLWKWKHUHTXLUHPHQWV of the Program as specified in this Agreement can be achieved within the funding limits established for the Program. That is, the cost of meeting the requirements of applicable code standards, hurricane damage repairs, lead-based paint remediation, hurricane protection, etc. In the event that the cost of complying with the requirements of the Program exceeds the IXQGLQJOLPLWVHVWDEOLVKHGIRUWKLV3URJUDPUHKDELOLWDWLRQPD\VWLOOEHGHHPHG³IHDVLEOH´LIWKH sum of the amount funded through this Program as specified in this Agreement plus amounts funded by the applicant (such as SBA/FEMA payments, insurance proceeds, or the DSSOLFDQW¶VSHUVRQDOIXQGV DUHVXIILFLHQWWRPHHWWKHFRVWRIFRPSO\LQ JZLWKWKHUHTXLUHPHQWV of the Program. In this regard, after considering the amount of funding per applicant as allowed by this Agreement, and any SBA/FEMA payments and insurance proceeds, the Advisor shall discuss the anticipated costs with the applicant, and explore the possibility and potential of the applicant providing the gap in funds needed for the project. As part of this discussion, the Advisor shall not only consider the rehabilitation cost estimate provided by the inspector, but also other associated costs such as mortgage recording fees and termite treatment costs. Pursuant to this discussion, the Municipality shall then reach a decision whether to further pursue the project based on the ability of the applicant to fund the aforesaid gap from the DSSOLFDQW¶VUHVRXUFHVRUIURPDOHQGHU8SRQGHWHUPLQLQJWKDWDSUR ject cannot be undertaken based on the above (that is, the project is not feasible), the Municipality shall issue the applicant an application rejection letter in which it shall provide the reason for the rejection. For every such rejected project, the Inspector shall prepare a cost estimate to be maintained in WKHDSSOLFDQW¶VILOHWRVXSSRUWVXFKDGHWHUPLQDWLRQ The Municipality shall proceed with processing projects that are deemed feasible. For projects built before January 1, 1978, whenever feasible, the Municipality shall obtain a lead-based paint inspection/risk assessment report as specified below. At the time of application intake , or at any time thereafter during contact with an applicant or a household member of the applicant, if the Advisor finds out about a disability of the DSSOLFDQWRUDKRXVHKROGPHPEHURIWKHDSSOLFDQWWKH$GYLVRUVKDOOLQIRUPWKH0XQLFLSDOLW\¶V Inspector of such finding. Alternatively, the Inspector may find out about such a disability based on contact with an applicant or a household member. After determining that a project is feasible, and in conjunction with preparing a work write-up for a project, the Inspector shall obtain an affidavit from the applicant regarding the disability (if the disability affects a City of Delray Beach Page 17 of 45 household member who is not a minor, either that person or the applicant may provide the affidavit). The Inspector may use a general affidavit form for this purpose. The affidavit must identify the person with the disability, it must describe the disability to WKHDIILDQW¶VEHVW knowledge, and it must describe the remedies proposed by the affiant to accommodate the disability that can be undertaken through the Program. The Municipality is encouraged to suggest the inclusion of any remedies that can be undertaken by the Program that come to its attention while in contact with the applicant, with household members, or while inspecting the property. The Municipality is cautioned not to omit any information the affiant wishes to put in the affidavit . The original DIILGDYLWPXVWEHSODFHGLQWKHDSSOLFDQW¶VILOHDQGDFRS\PXVWEHSU HVHQWHGZLWK the work write-up when that is submitted to HCD for approval before bidding as required below. HCD shall examine the contents of the affidavit to determine if the work wr ite -up has VXIILFLHQWO\DGGUHVVHGWKHDFFRPPRGDWLRQVQHHGHGDQGFRQVXOWZLWKWKH&RXQW \$WWRUQH\¶V office when necessary to achieve appropriate accommodation. In this regard, the Municipality is reminded that in addition to physical impairments that may be encountered, disabilities may also include neurological impairments, mental impairments, and emotional impairments that might come to its attention. During its discussions with the applicant or a household member of the applicant, the Municipality shall inquire: a) if the disability is expected to be of long, continued, and indefinite duration, b) if the disability VXEVWDQWLDOO\LPSHGHVWKHSHUVRQ¶VDELOLW\WROLYHLQGHSHQGHQWO\DQGF LIWKHGLVDEOHGSHUVRQ V ability to live independently can be improved by more suitable housing conditions. The Municipality shall inform the applicant that disclosure of a disability will in no way affect the application for assistance. I. THE VERIFICATION PROCESS: During this process, the Advisor shall verify the information provided by the applicant with outside parties, and obtain additional information that is necessary in reaching a decision on whether to proceed with the project or not. The verification process shall include: (1 ) INCOME VERIFICATION: The Municipality shall obtain written income YHULILFDWLRQRIWKHDSSOLFDQW¶VKRXVHKROGLQRUGHUWRHVWDEOLVKHOLJLELOLW\XQGHUWKH Program. A household is defined as: "All persons who occupy a housing unit. The occupants may be a single family, one person living alone, two or more families living together, or any other group of related or unrelated persons who share living DUUDQJHPHQWV &)53DUW ´$KRXVHKROGVKDOOEHUHJDUGHGDVEHLQJHOLJLEO HWR receive assistance under the Program if the projected prevailing rate of household annual income received from all sources by household size is at or below 80% of the applicable median family income for the West Palm Beach-Boca Raton Metropolitan Statistical Area. The current median income and schedule of qualifying incomes by household size shall be as revised and published in the Federal Register by HUD from time to time. The household annual income information to be used for eligibility determination under the Program shall be that in effect on the date funding is approved for each applicant. Annual income of all household members shall be determined according to the HUD Section 8 method. In this regard, it should be noted that the HUD Section 8 method of computing income in part takes into account income from assets (actual and imputed, as applicable). Income shall be verified through use of verification forms signed by the pertinent household member authorizing verification by the source of income or by obtaining documentation produced by a third party that establishes income information. Verification forms may include forms such as: - employment verification - unemployment benefit verification - pension benefit verification - social security benefit verification - disability benefit verification - veteran's benefit verification - verification of benefits administered by HRS City of Delray Beach Page 18 of 45 - interest income verification Each income earning household member must provide a signed copy of their last IRS return including attachments (last 2 returns for a self-employed person). It is recognized that IRS rules do not require the filing of a return if a person's income for example is below a certain amount as established by the IRS and revised from time to time. In such instance where an income-earning household member does not file a return, a notation shall be so indicated on the application form. The Municipality shall, for each adult household member who does not earn any income, obtain an affidavit from such household member indicating that no income is earned by such person. In the course of establishing and verifying household income for each applicant, the Municipality shall reconcile annual income information with annual household expenses reported by the applicant or determined by the Municipality. While reviewing this income and expense data, the Municipality shall examine such data for consistency allowing for reasonable living expenses of the household (such as food, clothing, and transportation). Where annual obligations and other household expenses (such as mortgage payments, car loans, utilities, and real estate taxes) appear to constitute substantial portions of household income not allowing room for reasonable living expenses, the Municipality shall further investigate annual income and expense information with the applicant in order to resolve unreconciled differences between both. If resolution of such matters cannot be reached to the satisfaction of HCD, the applicant's request for assistance may be suspended until satisfactorily resolved or else may be rejected. (2 ) TITLE VERIFICATION: The Municipality shall place in the file for each applicant copies of documents that show that the title of record to the property proposed for rehabilitation is held by the applicant (such as a deed or court order). (Tax records shall not constitute adequate proof in this regard). (Documents showing that the applicant holds a life estate in the property shall be acceptable). The Municipality shall assure that the applicant owned the property proposed for rehabilitation at the time of Hurricane Wilma on October 24, 2005. If the applicant is not able to demonstrate compliance with this requirement, the Municipality shall reject the applicant from participation in the Program in writing. A copy of the rejection letter shall be PDLQWDLQHGLQWKHDSSOLFDQW¶VILOH (3 ) REAL ESTATE TAX VERIFICATION: The Municipality shall place in the file for each applicant copies of documents that show that the real estate taxes for the property proposed for rehabilitation have been paid in ful l. (4 ) MORTGAGE VERIFICATION: In order to avoid funding an applicant who has mortgage obligations that are delinquent and that may lead to foreclosure and eventual loss of the property proposed for rehabilitation, the Municipality shall verify with the mo rtgagee that mortgage payments are current. Applicants, determined to have delinquent mortgage payments or who are in foreclosure shall be rejected by the Municipality in writing after having given the applicant a reasonable period of time to correct these conditions. Copies of rejection letters shall be maintained in the DSSOLFDQW¶VILOH (5 ) INSURANCE VERIFICATION: The Municipality shall document that the applicant, at minimum, maintains homeowner insurance on the property proposed for rehabilitation. ,IWKHSURSHUW\LVLQDIORRG]RQH³$´RUIORRG]RQH³9´WKHDSSOLFDQWVKDO OEHUHTXLUHG to maintain flood insurance on the property and the Municipality shall, before closing, PDLQWDLQGRFXPHQWDWLRQHYLGHQFLQJVXFKLQVXUDQFHFRYHUDJHLQWKHDSSOLFDQW¶V file. Such coverage shall be at least equal to the sum of the anticipated mortgage encumbrance against the property resulting from this Program and the balance of all other senior mortgage encumbrances against the property. The applicant shall also provide copies of all insurance claims, insurance settlements, City of Delray Beach Page 19 of 45 and insurance payments received in connection with damages to the property. The Municipality shall obtain from the applicant an affidavit in connection with all insurance funds received by the applicant for damages to the property. If the applicant did not receive any insurance funds for damages to the property, then the Municipality shall obtain from the applicant an affidavit to that effect to be placed in WKHDSSOLFDQW¶VILOH (6 ) ENVIRONMENTAL REVIEW: The Municipality shall complete an environmental review checklist for each property proposed for rehabilitation in accord with the UHTXLUHPHQWRI&)53DUWDQGPDLQWDLQVXFKLQWKHDSSOLFDQW¶VILOH,QD GGLWLRQ the Municipality shall complete the Categorical Exclusion Suggested Format form provided herein as Exhibit ³C ´ and submit such form with its required documentation to HCD for review and approval. The Municipality shall rectify all matters brought to its attention by HCD that are related to the contents of the Categorical Exclusion Suggested Format form as a precondition to proceeding with the project. (7 ) LEAD-BASED PAINT VERIFICATION: All dwelling units built before January 1, 1978, shall be inspected for the presence of lead-based paint as required by applicable lead-based paint regulations. The Municipality shall retain the services of an EPA certified lead-based paint inspector, who is also an EPA certified lead-based paint risk assessor to perform a surface-by -surface investigation (of all interior and exterior painted, stained, varnished or shellacked surfaces, regardless of whether or not such surfaces will be disturbed in course of rehabilitation) in order to determine the presence of lead-based paint, and shall submit to HCD a report containing the results of the inspection and risk assessment. The report shall identify surfaces containing lead-based paint which are in a stable condition (regarded not to constitute a hazard), and surfaces which contain lead-based paint and which are deteriorated or subjected to friction or impact (regarded to constitute a hazard). The findings of the report shall be used by the Municipality in preparing the work items intended to accomplish lead-based paint remediation, and shall be used for the preparation and provision of the Lead-based Paint Notice of Evaluation and/or Presumption as required by applicable regulations. The services of the lead-based paint inspector/risk assessor retained by the Municipality shall be procured in accord with the requirements of this Agreement if the Municipality wishes to be reimbursed by the County for the cost of these services. In such instance, the Municipality shall submit its request for proposals for consultant services package to HCD and obtain a letter of approval prior to soliciting proposals, and the Municipality shall obtain HCD approval prior to awarding the contract for these consultant services. (It is suggested that the above services also include the clearance testing services mentioned below). The Municipality shall pay the lead-based paint inspector/risk assessor for the above mentioned reports and clearance testing services as approved by HCD, and request HCD for reimbursement of such costs. The County shall reimburse the Municipality for such costs as provided in this Agreement. J. THE WORK WRITE-UP PREPARATION PROCESS: If upon review of the information verified through the preceding process the applicant appears to be qualified, a work write-up shall be prepared by the Inspector for the rehabilitation project. The work write-up shall contains a detailed list of construction specifications the execution of which will correct the deficiencies at the property and will upgrade the property to the extent practicable and feasible to applicable housing and building code standards (including the HUD Section 8 Housing Quality Standards). The work write-up shall also contain items to address lead-based paint remediation, hurricane protection, energy efficiency and conservation, and ones that are intended for the removal of architectural barriers and the correction of damages caused by Hurricane Wilma. (1 ) CODE RELATED ITEMS: These are work item that are intended to correct code violations, that is the correction of deficiencies at the property which are not in compliance with applicable housing and building code standards (including the HUD Section 8 Housing Quality Standards). These items may also include compliance with any historic preservation requirements applicable to the property. City of Delray Beach Page 20 of 45 (2 ) HURRICANE PROTECTION ITEMS: The work write-up shall include work items that address hurricane protection as required by code. Additional hurricane protection measures not required by code may be included in the work write-up to the extent practicable and feasible. (3 ) HOMEOWNER ASSOCIATION REQUIREMENTS: Should the work write-up contain items that are also regulated by a homeowner association, then the work write-up shall address the requirements of the homeowner association for such items only, such as complying with color or style requirements for exterior building components, and obtaining homeowner association approval of building materials or exterior building components. In such instances the work write-up shall require the contractor to submit such for approval by the homeowner association prior to the commencement of the work. (4 ) DISABILITY ACCOMMODATIONS: In the event that an applicant and/or a household member has a disability that comes to the attention of the Municipality, an affidavit shall be obtained from the applicant/household member which contains remedies proposed by the affiant to accommodate the disability that can be undertaken through the program as previously described. When the disability is expected to be of long, continued, and indefinite duration, and if the disability substantially impedes the SHUVRQ¶VDELOLW\WROLYHLQGHSHQGHQWO\DQGLIWKHGLVDEOHGSHUVRQ VDELOLW \WROLYH independently can be improved by more suitable housing conditions, then the work write-up shall include such work items (remedies proposed by the affiant) that would accommodate the disability and that can be undertaken through the Program. (5 ) REHABILITATION/DEMOLITION OF UN-PERMITTED ENCLOSURES AND ADDITIONS: The work write-up shall provide for the improvement of existing un-permitted additions and enclosures such that they comply with applicable codes if feasible and practical, and within the funding limits. Un-permitted additions and enclosures that are not feasible or practical to improve as part of the rehabilitation process, and within the funding limits, shall be demolished. Mortgagee/lien-holder consent to demolish shall be obtained when there are existing mortgages/liens on the property. (6 ) LEAD-BASED PAINT REMEDIATION: If the lead-based paint inspection/risk assessment report reveals the presence of lead-based paint at the property (or if such report leads to a presumption of the presence lead-based paint at the property), then the work write-up shall include a disclosure (and warning) as follows: - A disclosure of the building components, materials, and surfaces that have been found to contain lead-based paint or are presumed to contain lead-based paint, and that will remain at the property during and after the rehabilitation project, and a warning to the contractor, all subcontractors, and all their employees and workers, not to disturb any of these building components, materials, and surfaces in any manner, shape, or form. - A disclosure of the building components, materials, and surfaces that have been found to contain lead-based paint or are presumed to contain lead-based paint, and that will be abated by qualified persons in connection with the rehabilitation project, and a warning to the contractor, all subcontractors, and all their employees and workers, except for persons qualified to do so, not to disturb any of these building components, materials, and surfaces in any manner, shape, or form. - A disclosure of the dust lead hazards found at the property that will be remediated by qualified persons in connection with the rehabilitation project. - A disclosure of the soil lead hazards found at the property that will be remediated by qualified persons in connection with the rehabilitation project. The work write-up shall include items that achieve the remediation of surfaces which contain lead-based paint and which are expected to be disturbed during the process of rehabilitation construction, as well as items that achieve the remediation of surfaces which contain lead-based paint and are deteriorated or subjected to friction or impact and regarded to constitute a hazard, as well as items that address the remediation of dust and soil lead hazards. Lead-based paint remediation shall be undertaken using the "abatement" method which shall be performed by appropriately certified persons. The work write-up may also include items that achieve the remediation of surfaces City of Delray Beach Page 21 of 45 which contain lead-based paint which are in a stable condition (regarded not to FRQVWLWXWHDKD]DUG DWWKH0XQLFLSDOLW\¶VRSWL on. The inclusion of such optional items may be intended to achieve a lead free house, or where the house is permanently occupied by at least one child less than six (6) years old. The work write-up for abatement shall specify the scope of the hazard reduction activity, the lead hazard reduction duration, the status, and length in days, of occupant temporary relocation, the compliance requirements, the qualifications to perform the work, and shall require an occupant protection plan, clearance testing, and an abatement report. (7 ) INCLUSION OF ENVIRONMENT REVIEW REQUIREMENTS: The work write-up shall include any work required as a result of the completion of the environmental review of the property (such as noise attenuation). (8 ) ASBESTOS CONTAINING MATERIALS: Should the Inspector, while preparing the work write-up, encounter suspect asbestos containing materials, such as transite siding, or should the Inspector encounter a current or prior non-residential use of the property (the house and its surrounding site), then the Inspector shall inform HCD of such observation. HCD shall then cooperate with the Municipality to obtain an asbestos survey of the property in order to determine the presence of asbestos containing materials, which if found, shall be addressed in accord with applicable regulations. Each work write-up submitted to HCD shall be accompanied by a certification from the Inspector who prepared the work write-up indicating whether or not there is any evidence of a current or prior non-residential use of the property. (9 ) $33/,&$17¶6:25.:5,7(-UP REVIEW AND APPROVAL: The Inspector shall review the completed work write-up with the applicant who shall sign a review and approval statement indicating: - That the work write-up has been reviewed with the applicant. - That the applicant understands the scope of work and the specifications of the work to be performed on the applicant's property. - The applicant's agreement that no changes to the work write-up specifications will occur except for items needed to meet housing or building code requirements. - The applicant's authorization allowing the Municipality to obtain bids for the work contained in the work write-up. (10) HCD WORK WRITE-UP APPROVAL AND IN-HOUSE COST ESTIMATE: Each completed work write-XSVLJQHGE\WKHDSSOLFDQWVKDOOEHPDLQWDLQHGLQWKHDSSOLFDQW¶V file. After incorporation of any requirements resulting for the completion of the environmental review into the work write-up, the Municipality shall provide HCD, for +&'¶VDSSURYDOEH fore bidding, a copy of such work write-XSVKRZLQJWKH,QVSHFWRU¶V in -house cost estimate for each item in the work write-up. The work write-up shall be accompanied by a copy of lead-based paint inspection/risk assessment report, a copy of the aforesaid asbestos certification as prepared by the Inspector, as well as copies of any disability affidavits. HCD shall advise the Municipality of its determination concerning its review of the work write-up within ten (10) working days of its receipt. K. BIDDING AND BID EVALUATION: Bids for the work detailed in the work write-up shall be solicited by the Municipality from contractors on a list of bidders established by the Municipality. The Municipality shall determine the requirements (such as licensing and insurance requirements) to be met by such contractors for admission to the list of bidders. For projects requiring lead-based paint abatement, the rehabilitation contractor submitting a bid must be, or must hire, a certified lead-based paint abatement contractor as a subcontractor. The bid documents to be used for this purpose shall include the address, property owner, and property owner contact information for the property to be rehabilitated, shall require bidders to visit the property, and shall specify the location, date, and time by which bids must be submitted. The bid documents shall specify the number of days after bid opening that bids are to remain valid. The bid documents shall contain provisions for addressing inconsistencies, interpretations, and supplemental instructions, as well as provisions for the modification, withdrawal, rejection, and award of bids. The bid documents shall contain the warranty and release of liens requirements as well as the insurance requirements for both the City of Delray Beach Page 22 of 45 contractor and the lead-based paint abatement contractor (or subcontractor). The bid documents shall contain the Federal requirements applicable to projects funded under the Program. For projects requiring lead-based paint abatement, the bid documents shall specify that the Program shall pay for the first clearance test to be undertaken in connection with the abatement for a project, and shall specify that the contractor shall be responsible for the cost of all subsequent clearance tests to be obtained by the Municipality for that project. The bid documents shall indicate that the cost of all clearance tests obtained by the Municipality and UHTXLUHGIRUDSURMHFWDIWHUWKHLQLWLDOFOHDUDQFHWHVWVKDOOEHGHGXFW HGIURPWKHFRQWUDFWRU¶V payment. For projects requiring lead-based paint abatement, the bid documents shall specify the number of days for which the Program shall pay for occupant temporary relocation, if any. The bid documents shall specify that the Program shall pay for occupant temporary relocation costs for the pre-specified number of days, and shall specify that the contractor shall be responsible for the cost of all subsequent occupant temporary relocation made necessary as a result of the FRQWUDFWRU¶VIDLOXUHWRSDVVDQ\FOHDUDQFHWHVWLQJ7KHELGdocuments shall indicate that the FRVWRIDOORFFXSDQWWHPSRUDU\UHORFDWLRQQHFHVVLWDWHGDVDUHVXOWRIWKHFRQWUDFW RU¶VIDLOXUHWR pass any clearance testing and paid by the Municipality, shall be deducted from the FRQWUDFWRU¶VSD\PHQW The Municipality shall require contractors to submit sealed bids for the work contained in the work write-up after visiting the applicant's property to acquaint themselves with existing conditions. The Municipality shall only accept bids up to a pre-specified date and time after which such bids shall be opened at the Municipality's offices. Bid openings shall be open to bidders, applicants, and the general public. At the bid opening the Municipality's designated employees shall open the bids and announce total amounts bid. The announced totals shall be recorded on a bid spreadsheet showing each bidder's name and total amount bid as announced. After all bids are opened and announced the Municipality shall calculate the sum of all the individual items contained in each bid to check for discrepancies between such sum and the amount read at the bid opening. Where a discrepancy exists in a bid between the true and correct sum of itemized costs and the total announced at the bid opening, the true and correct mathematical sum of itemized costs shall prevail and the spreadsheet shall be noted accordingly. Upon close examination of all bids, the Municipality shall make a determination on the apparent lowest responsive responsible bidder that best meets the terms, conditions, and specifications of the bid and that will result in the best interest of the applicant, the Municipality, and the County. The Municipality shall evaluate the lowest bid to establish whether the total bid is within the funding limit, and shall provide the applicant an opportunity to contribute to the project any funds needed for the project above the funding limit. Funding shall be recommended for the lowest responsive responsible bidder. Should the applicant wish to select another bidder, then the difference in cost between the lowest bidder and that selected by the applicant shall be funded by the applicant. Should the Municipality wish to place a limit on the number of construction contracts that may be awarded to a participating contractor at any one time under its Program, then the Municipality shall disclose such conditions in the bid documents. The Municipality shall secure the services of a vendor in connection with the Program to provide inspections for, and treatment of, termites and other wood destroying organisms (extermination) where such infestation is found. The contract for these services shall cover WKHSURSHUW\RIDOOWKHDSSOLFDQWVSDUWLFLSDWLQJLQWKH3URJUDPVKDOO EHSURYLGHGRQDQ³DV QHHGHGEDVLV´DQGVKDOOHVWDEOLVKWKHFRVWRIVX ch services for use when needed. Before securing these services, the Municipality submits its request for proposals for extermination vendors to HCD and obtain a letter of approval prior to soliciting proposals, and the Municipality shall obtain HCD approval prior to awarding the contract for these services. Should the Municipality not be able to obtain HCD approval for the aforesaid contract, or City of Delray Beach Page 23 of 45 should it choose to solicit these extermination services for each applicant on a project by project basis, then the Municipality shall, in like manner as described above, establish a list of companies qualified to provide such services, and shall, for each applicant, solicit, obtain, and evaluate bids from such companies for the treatment of termites and other wood destroying organisms that may be found at the property to be rehabilitated under the Program. Funding shall be recommended for the lowest responsive responsible bidder. Should the applicant wish to select another bidder, then the difference in cost between the lowest bidder and that selected by the applicant shall be funded by the applicant. L. PROJECT UNDERWRITING: The Municipality shall complete a project underwriting process which entails undertaking several tests to verify if Program requirements have been met. This process also entails the formulation of a funding recommendation when such requirements are met, or the rejection of the application if these requirements cannot be met by the applicant. The Municipality shall, for each applicant, document the following: (1 ) INFORMATION CONSISTENCY: The Municipality shall assure that the information submitted by the applicant and other information verified through third parties or gathered by the Municipality is consistent. If the preceding cannot be met, the Municipality shall request the applicant to provide corrected information or an explanation such that satisfactory consistency exists in the opinion of the Municipality and HCD. Failure to do so particularly where willful falsification exists shall be regarded as grounds for rejection of the application and denial of any assistance. (2 ) PROPERTY LOCATION: The Municipality shall assure that the property to be rehabilitated is located within its municipal boundaries. An applicant whose property is not located within these boundaries shall be rejected. (3 ) PROPERTY ELIGIBILITY: The Municipality shall assure that the property to be rehabilitated is a detached one dwelling structure entirely used for residential purposes. The Inspector, at the time of initial inspection, shall establish the number of units at the project and its use for residential purposes. If the number of units exceeds one detached dwelling unit, such condition shall be remedied by actions that result in no more than one detached dwelling unit after rehabilitation by including the removal of any excess units in the work write-up. Any such demolition shall not result in the displacement of any occupant and shall comply with One-for-One Replacement regulations. If the property is not entirely used for residential purposes, such condition shall be remedied by actions that result in elimination or conversion of non-residential portions of the property to residential use. (4 ) OCCUPANCY/RESIDENCY: The Municipality shall assure that the applicant resides at the property to be rehabilitated which shall be determined at the time the property is inspected and through the applicant's address as revealed by the various documents received during the application/verification process. If the applicant does not occupy the property, the applicant shall demonstrate extenuating circumstances for not residing at the property. Rehabilitation may proceed provided that the rehabilitation renders the property occupiable, and provided that the applicant submit a written commitment prior to funding approval clearly indicating the intent of the applicant to reside at the property after completion of the rehabilitation process. Extenuating circumstances may include certain circumstances such as damages from hurricane Wilma, or a determination of the property's unfitness for habitation by a building or other official for reasons of safety or other danger at the property that can be remedied through the Program . HCD shall determine the type of documentation necessary and/or acceptable to demonstrate the existence of these extenuating circumstances, and if the extenuating circumstances are acceptable. (5 ) PROPERTY OWNERSHIP: The Municipality shall assure that the title of record to the property proposed for rehabilitation is held by the applicant at the time of application and that the applicant owned the property proposed for rehabilitation at the time of Hurricane Wilma on October 24, 2005. Note: the above condition requiring that the applicant have an ownership interest in the property to be rehabilitated does not preclude other parties who do not reside at the property from having an ownership interest in the property in addition to that of the City of Delray Beach Page 24 of 45 applicant. These other parties are not regarded to be part of the applicant's household, however any such other parties having an ownership interest must agree to and join the applicant in executing program documents that secure the rehabilitation costs and encumber the property. In instances where the applicant has a life estate, all ³UHPDLQGHUPHQ´PXVWDJUHHWRDQGMRLQWKHDSSOLFDQWLQH[HFXWLQJSURJUDP documents that secure the rehabilitation costs and encumber the property. (6 ) REAL ESTATE TAX PAYMENT: The Municipality shall assure that the real estate taxes for the property proposed for rehabilitation have been paid in full and shall place in the file for each applicant copies of documents showing the same. (7 ) CURRENT MORTGAGE PAYMENTS: For applicants who have mortgage obligations, the Municipality shall assure that such mortgage obligations are not delinquent and that mortgage payments are current. (8 ) PROPERTY INSURANCE: The Municipality shall assure that the applicant, at minimum, maintains homeowner insurance on the property proposed for rehabi OLWDWLRQDQGLIWKHSURSHUW\LVLQDIORRG]RQH³$´RUIORRG]RQH³9´LWV KDOO assure that the applicant maintains flood insurance on the property. If such insurance is not in place at the time of application, then the Municipality shall, before closing , obtain documentation evidencing such insurance coverage. (9 ) DAMAGES FROM HURRICANE WILMA: The Municipality shall assure that the DSSOLFDQW¶VSURSHUW\VXIIHUHGGDPDJHVIURP+XUULFDQH:LOPDDVSUHYLRXVO\GHVFULEHG (10) RECEIPT OF SBA OR FEMA BENEFITS AND INSURANCE PROCEEDS: The Municipality shall assure that there is not duplication of benefits. The Municipality shall verify the receipt of any SBA and/or FEMA payments by the applicant in connection with Hurricane Wilma and shall document such. The Municipality shall verify the receipt of any insurance proceeds by the applicant in connection with Hurricane Wilma and shall document such. (11) LEAD HAZARD PAMPHLET: The Municipality shall assure that each applicant has received a lead hazard informatio QSDPSKOHWHQWLWOHG³3URWHFW<RXU)DPLO\)URP /HDG,Q<RXU+RPH´DQGVKDOOREWDLQIURPWKHDSSOLFDQWDVLJQHGUHFHLSW IRUVXFK pamphlet. (12) LEAD NOTICE: For each property built before 1/1/78, the Municipality shall assure that each applicant has received a Lead-based Paint Notice of Evaluation and/or Presumption and shall obtain from the applicant a signed receipt for such notice. (13) ENVIRONMENTAL AND HISTORIC REVIEW: The Municipality shall assure that there are no environmental or historic considerations that would prevent the rehabilitation of the property, and that it has complied with all environmental and historic requirements. (14) PRESENCE OF ASBESTOS: The Municipality shall assure that the rehabilitation of the property shall not cause any asbestos exposure and it shall comply with applicable asbestos regulations when there is evidence of a current or prior non-residential use at the property (the house and its surrounding site). (15) HOUSEHOLD INCOME: The Municipality shall assure that the annual income of the household occupying the property to be rehabilitated as received from all sources, by household size, is at or below 80% of the applicable median family income for the West Palm Beach-Boca Raton Metropolitan Statistical Area. M. PROGRAM COSTS, FUNDING LIMITS AND SECURITY: (1 ) ELIGIBLE PROGRAM COSTS: The following expenses shall be regarded as eligible costs under the Program: - Labor, materials, and other costs of rehabilitation of properties, including repair directed toward an accumulation of deferred maintenance, removal of material and architectural barriers that restrict the mobility and accessibility of elderly or severely disabled persons, replacement of principal fixtures and components of existing City of Delray Beach Page 25 of 45 structures, installation of security devices, including smoke detectors and dead bolt locks, and renovation through alterations, additions to, or enhancement of existing structures, which may be undertaken singly, or in combination. - Improvements to increase the efficient use of energy in structures through such means as installation of storm windows and doors, siding, wall and attic insulation, and conversion, modification, or replacement of heating and cooling equipment, including the use of solar energy equipment. - Improvements to increase the efficient use of water through such means as water saving faucets and shower heads and repair of water leaks. - Improvements to provide windstorm protection to render rehabilitated homes less vulnerable to future wind related damage. - Connection of residential structures to water distribution lines or local sewer collection lines (excluding payment of certain associated fees, such as impact fees, not eligible under the CDBG program). - Costs of flood insurance premiums and associated service charges as established under the National Flood Insurance Program for a period of up to three years. - Costs of inspecting, testing, and abatement of lead-based paint and asbestos containing materials pursuant to applicable regulations. - Costs associated with the processing of rehabilitation applications such as a title search or state and local fees for recording documents prepared in conjunction with the Program. - Costs of obtaining construction related professional services including architectural, engineering, and surveying services, including the preparation of related technical documents, and inspections associated with execution of the content of such documents as pertains to the rehabilitation work. - Costs of performing inspections of termite or other wood destroying organisms and extermination thereof. - Construction contingency funds at an amount which is the lesser of five percent (5%) of the construction contract amount or $1,000. - Costs of the Inspector, as described herein, and where a separate budget is provided under this Agreement. - Temporary relocation costs for the members of the household where rehabilitation is being performed. (2 ) FUNDING LIMITS AND SECURITY: All costs for each applicant, except for temporary relocation costs and the cost of the Inspector and/or an Advisor, shall be provided as a loan subject to the following: - The maximum funding amount per applicant for payment of rehabilitation construction costs and incidental expenses regarded as eligible under this Agreement: $40,000. - Security: A mortgage and promissory note, in the amount funded to the applicant, shall be executed by all property owners of record at the closing described below and shall be recorded by the Municipality in the public records of Palm Beach County immediately after such closing. The Municipality shall be the mortgagee on all such mortgages and shall be the beneficiary of the promissory notes. Note: all additional funds, not included in the mortgage and promissory note, and provided after the mortgage and promissory note have been executed, shall be secured by means of a notice of future advance and promissory note, before such funds are expended. The notice of future advance and a copy of the promissory note shall be promptly recorded by the Municipality in the public records in like manner. - Interest rate: 0%. - Term: 10 years for amounts funded up to $20,000, and 15 years for amounts funded that are equal to or greater than $20,000. - Repayment Provisions and Events of Default: No repayment shall be made by the mortgagor during the term of the mortgage, except that the entire principal amount of the loan (and any other amounts required by the mortgage) shall be repaid by the applicant in the event of default as specified in the mortgage including the lease, sale, transfer of title to, or disposition of, the mortgaged property. - Repayment of funds during the term of this Agreement: The Municipality shall immediately transmit to the County all mortgage repayments that the Municipality receives during the term of this Agreement. The Municipality may request the County to add such transmitted funds received during the term of this Agreement to the amount funded under this Agreement for such uses as described in the Agreement. City of Delray Beach Page 26 of 45 - Repayment of funds after the expiration of this Agreement: The Municipality shall immediately transmit to the County all mortgage repayments that the Municipality receives after the expiration of this Agreement. The County shall then transmit such funds to the State. Th e provisions of this clause shall survive the expiration of this Agreement. N. PROJECT APPROVAL: Upon assurance of project compliance with the requirements of the Program, and formulation of a funding recommendation for the applicant, the Municipality shall submit to HCD the entire applicant file compiled to date and a financial write-up of the project by which the Municipality requests HCD to approve funding for the applicant. HCD shall advise the Municipality of its determination concerning its review of the financial write-up within ten ZRUNLQJGD\VRI+&'¶VUHFHLSWRIWKHILQDQFLDOZULWH -up. The financial write up shall contain the following information: - Applicant/Owner Information: the name and address of the applicant, the names of the owners, and a statement concerning the presence of any owners that do not occupy the property. - Household Information: identify the persons in the household, their relationship and ages. - Household Income Information: identify each household member receiving an income, the type of income, and the amount of monthly income, provide the household annual income, and a statement that the household is income eligible. - Property Information: provide a unit description (one unit substandard detached residence), occupancy status (owner occupied), year built, year acquired, number of bedrooms, square footage area, a statement that the property sustained damages from Hurricane Wilma, and a statement that the property is located within the municipal boundaries. - Property Obligations: identify the status of real estate tax and mortgage payments, and property insurance coverage. - Project Costs: list all project costs for items such as Inspection/risk assessment report, clearance test, rehabilitation construction, termite treatment, recording fees, and construction contingency, and provide a total cost for the project. - Receipt of Benefits/Proceeds: provide a statement concerning the applicants receipt of any SBA/FEMA benefits and/or any insurance proceeds, the amount thereof, and an explanation of which portion of such received funds will be contributed by the owner to the cost of the project. - Funding Eligibility: provide a statement that the applicant is eligible to receive funding in accord with the Agreement between the County and the Municipality. - Funding Recommendation: provide a funding recommendation indicating the recommended sources of funds, and the amount from each source, to meet the total cost of the project. - Submission Statement: provide a statement identifying the person who prepared and submitted the financial write-up on behalf of the Municipality and provide a signature and date for submission from such person. - Funding Approval: provide a section for HCD to indicate its approval of the funding recommendation and a signature and date for such approval, and allow a section for HCD comments in this regard. O. PROJECT CLOSING: Upon approval of project funding by HCD, the Municipality shall prepare certain project documents to be executed at the closing which shall be attended by The Advisor, the applicant, and the contractor for the project that has been selected through the bid process. The Municipality shall assure that the following has occurred as a pre-requisite to closing: - The Inspector shall conduct a pre-closing pre-construction site conference/walk-through with the applicant and the contractor. At this walk-through the participants shall review the scope of work to be performed, the schedule of work, and they shall establish whether there is a need for the homeowner to move any personal or household items to facilitate the FRQWUDFWRU¶VZRUN - The Advisor shall receive evidence of contractor insurance as specified in the bid documents and construction contract which evidence shall be placed in the applicant file. - The Advisor shall verify that the project contractor does not appear on the current Genera l Services Administration List of Parties Excluded from Federal Procurement or Non-procurement Programs (see http://www.epls.gov/). - For projects requiring lead-base paint abatement, the Advisor shall receive from the contractor an occupant protection plan prepared according to applicable regulations. City of Delray Beach Page 27 of 45 The closing shall be conducted by the Advisor who shall review all documents with the applicant prior to execution. The documents to be executed by the applicant shall include: - Mortgage. - Promissory Note. - Notice of Commencement. - Notice to Proceed. - Contract for Exterminating Services (between the applicant and the exterminating company). - Construction Contract (between the applicant and the contractor). Note: All owners of record (including the applicant(s) who reside at the property and owners who reside elsewhere) must execute the mortgage and promissory note. In instances where the app OLFDQWKDVDOLIHHVWDWHDOO³UHPDLQGHUPHQ´PXVWMRLQWKHDSSOL FDQWLQH[HFXWLQJWKH mortgage and promissory note. The documents to be executed by the contractor shall include: - Construction Contract (between the applicant and the contractor). - Ce rtification of Non-Segregated Facilities. - Certification of Eligibility of General Contractor. - Non-Collusion Affidavit of Prime Bidder. - Anti-Kickback Affidavit. 7KH$GYLVRUVKDOOSURYLGHWKHFRQWUDFWRUEODQNSD\PHQWUHTXHVWIRUPVIRUWKHFRQW UDFWRU¶V use and after the closing shall obtain the exterminating com SDQ\¶VFRXQWHUVLJQDWXUHRQWKH Contract for Exterminating Services. The Municipality shall, immediately after the closing, assure that the original executed mortgage accompanied by a copy of the promissory note, a nd the notice of commencement are recorded in the public records of Palm Beach County. The Inspector shall, immediately after recording, assure that a certified copy of the recorded Notice of Commencement is posted in a visible location at the property to be rehabilitated. The Municipality shall assure that all funds from other sources, except funds to be provided under this Agreement, intended for a project regardless of source shall be available at closing. This shall include all the DSSOLFDQW¶VFRQWULEXWLRQVDOOLQVXUDQFHSURFHHGVDQGRUDQ\SD\PHQW IURP6%$)(0$ RURWKHUDJHQF\ DVZHOODVDOOWKH0XQLFLSDOLW\¶VIXQGVWREHXVHGI RUWKH project. All such funds shall be held in escrow by the Municipality and shall be expended on the project before the Municipality requests HCD for the reimbursement of funds made available under this Agreement for the project as described below. For projects where lead-based paint abatement is to be performed and where the occupants of the house are to be temporarily relocated, the Advisor shall, at the closing, coordinate the abatement work days and the temporary relocation dates with the applicant, the contractor, the Inspector, and the hotel. The Municipality shall use a Document Affidavit, a blank form of which shall be provided to it by HCD, in connection with closings for property owners who are unable to read (for illiterate persons and for persons who due to a physical disability are unable to read), and who do understand English. The Advisor shall list on this affidavit all documents by name that are included in the closing, and that are to be executed by such property owners. The Advisor shall also arrange for someone (such as a friend or a relative of the property owner or someone well acquainted with the property owner) to read these documents to the property owner. The Advisor shall prepare and deliver these documents to the reader in advance of the closing to allow enough time for reading. The Document Affidavit shall be executed by the reader and secured by the Advisor for the closing to be placed in the applicant file. The Municipality shall use a Translated Document Affidavit, a blank form of which shall be provided to it by HCD, in connection with closings for property owners who do not understand English. The Advisor shall list all documents by name that are included in the closing, and that are to be executed by such property owners. The Advisor shall also arrange for someone (such as a friend or a relative of the property owner or someone well acquainted with the property owner) to translate these documents to the property owner noting that an oral translation is sufficient, provided that the nature and effect of the documents is translated. The Advisor shall prepare and deliver these documents to the translator in advance of the closing to allow enough time for translation. The Translated Document Affidavit shall be City of Delray Beach Page 28 of 45 executed by the translator and secured by the Advisor for the closing to be placed in the applicant file. P. REHABILITATION CONSTRUCTION: The Inspector shall inspect the work in progress being performed by the contractor and review and approve all construction draws made against the contract. The applicant shall approve all work requested for payment. A minimum ten percent (10%) retainage shall be applied to each progress draw, with the accumulated retainage amount released in conjunction with final payment and upon satisfactory submission and approval by HCD of all required project closeout documentation. All lead-based paint remediation, temporary relocation of occupants, notifications, clearance testing, and related documentation shall be carried out in compliance with HUD lead-based paint regulations for projects funded under the Program. During construction, change orders for unforeseen code related work items necessitating an increase in the contract amount may be approved provided contingency funds are available. If contingency funds are insufficient, additional funds may be obtained for the project as described below. The Municipality shall request HCD’s approval of all change orders before they are signed regardless of whether or not the change orders cause an increase in the contract amount. HCD shall advise the Municipality of its determination concerning its review of change orders within ten (10) working days of HCD’s receipt of the proposed change order. Upon completion of the work, the contractor shall ensure that all work has been approved by the building department with jurisdiction over the project, and obtain the necessary permit approvals. The contractor shall request a final inspection by the Municipality which shall be followed by the Municipality providing the contractor with a punch list of deficiencies (if such deficiencies exist) to be corrected by the contractor prior to final payment. When the work is fully completed, the Municipality shall obtain the applicant's approval of the final payment. The final payment shall be subject to the Municipality’s receipt of the following from the contractor: -Original building permits with Bldg. Dept. final approval, and Certificate of Completion. -Original contractor’s roof nailing affidavit. -Original contractor’s warranty showing the final inspection date/warranty start date. -Original contractor’s release of lien (with all subcontractors listed). -Original subcontractors’ releases of lien for subcontractors with Notices to Owner. -Original abatement report for projects with lead-based paint abatement. -Required product approvals. -Manufacturers' warranties for equipment and appliances. The Municipality shall pay the contractor for completed work that is contained in the construction contract as approved by HCD, and request HCD for reimbursement of such costs. The County shall reimburse the Municipality for such costs as provided in this Agreement. In connection with the first draw for each construction contract that is requested for reimbursement, the Municipality shall provide the following: -A copy of the executed construction contract. -A copy of the contractor’s bid showing the work items and the cost of each. -A copy of the contractor’s payment request approved by the Inspector and the applicant, which shows the work items approved for payment and their costs, and which provides an accounting of the contract amount, change orders, retainages, payments to date, deductions and a computation of the approved payment. -A copy of the check tendered in payment by the Municipality. In connection with the interim draws for each construction contract that is requested for reimbursement, the Municipality shall provide the following: -A copy of the contractor’s payment request as specified above. -A copy of the check tendered in payment by the Municipality. In connection with the final draw for each construction contract that is requested for reimbursement, the Municipality shall provide the following: -A copy of the contractor’s roof nailing affidavit. City of Delray Beach Page 29 of 45 -A copy of the contractor’s warranty. -A copy of the contractor’s release of lien. -A copy of the abatement report. -A copy of the contractor’s payment request as specified above. -A copy of the check tendered in payment by the Municipality. Extermination, if necessary, shall be carried out after completion of construction and as scheduled by the Advisor. The Municipality shall inspect the extermination work and review and approve the payment for such services. The applicant shall also approve extermination work requested for payment. The Municipality shall pay for the completed extermination work that is contained in the contract for exterminating services as approved by HCD, and request HCD for reimbursement of such costs. The County shall reimburse the Municipality for such costs as provided in this Agreement. Furthermore, in connection with the extermination services that are requested for reimbursement, the Municipality shall provide the following: -A copy of the executed contract for exterminating services. -A copy of the company’s invoice approved by the Municipality and the applicant. -A copy of the check tendered in payment by the Municipality. Q. TEMPORARY RELOCATION POLICY: The Municipality shall not cause the permanent dislocation of any persons as a result of implementing the Program. The parties to this Agreement recognize that the rehabilitation process may in some instances require the temporary relocation of the applicant and the applicant’s household members due to activities such as lead-based paint abatement or during extermination of wood destroying organisms. Accordingly, the Municipality hereby adopts the below Temporary Relocation Assistance Policy and obligates itself to making the payments associated therewith. Temporary Relocation Assistance Policy: Should in the course of rehabilitation activities undertaken under the Program envisioned by this Agreement, the necessity arise to temporarily relocate the members of the household where rehabilitation is being performed (while lead-based paint abatement is taking place, or during extermination of wood destroying organisms, for example), then the Municipality shall pay for the cost of accommodations (hotel/motel) incurred while temporarily housing such household members away from the home being rehabilitated. The Municipality shall endeavor to minimize the cost of such accommodations while arranging for accommodations that are as close to the home being rehabilitated as possible, for the least number of nights possible, and while minimizing disruption to the family (that is, maintaining proximity to day care, schools, or work). The Municipality shall pay the business provider of such temporary housing the cost of such temporary relocation from the budget established for such purpose in this Agreement, after having procured such services in accord with this Agreement. The County shall reimburse the Municipality for temporary relocation payments in connection with this Agreement up to the amount in the allocated budget. The Municipality shall not secure any such temporary relocation payments by the mortgage given by the applicant under the Program. Nothing herein shall preclude the applicant from voluntarily temporarily relocating to a location of the applicant’s choice (such as with friends or family) while Program activities are underway without seeking payment from the Municipality. R. PROJECT CLOSEOUT: After all project contracts, invoices, and expenses have been paid, the Municipality shall prepare and submit to HCD, along with the entire applicant file compiled to date, a closeout statement which shall show all allocated funds, and an itemized listing of all payments made on behalf of the applicant, and all undisbursed funds and their disposition. Funds that have been secured by the mortgage and that have not been expended shall be credited by the Municipality to the applicant as a principal reduction of the loan. The closeout statement, shall be prepared and signed by the Advisor, and shall be placed in the applicant file with a copy provided to the applicant. City of Delray Beach Page 30 of 45 S. OTHER RELATED MATTERS: (1) PROGRAM DOCUMENTS: Prior to the Municipality’s use of any documents listed below in connection with this Agreement, the Municipality shall submit the following to HCD for approval: Lead-Based Paint Notice of Evaluation and/or Presumption, Lead-based Paint Notice of Hazard Reduction Activity, bid documents and solicitation documents for all services, construction contract, notice of commencement, release of liens, warranty, extermination contract, mortgage, promissory note, notice of future advance, and affidavits. The Municipality shall use the above documents as approved by HCD in connection with this Agreement. After the execution of this Agreement, the Municipality agrees to submit, in like manner, any other Program documents requested of it by HCD for review and approval. (2) DATE VALIDITY OF DOCUMENTS: The below identified documents contained in applicant files at the time of funding approval by HCD shall be no more than six months old: -Income verifications and income affidavits. -Verification of real estate and mortgage liabilities. -Evidence of owner’s funding. Note: Construction and extermination contractor’s bid proposal validity date may be voluntarily extended by a letter from the contractor, and if not voluntarily extended by the contractor, the Municipality shall procure such services again through the bid process. (3) ADDITIONAL FUNDING: The Municipality may request additional funding in excess of amounts approved by HCD for a project (such as for change orders), provided that the sum of additional funding and original project funding does not exceed the funding limit per applicant established in this Agreement. In its request, the Municipality shall identify the purpose of the additional funds and provide a detailed accounting of the items to be funded. In the instance where such sum would exceed the funding limit per applicant established in this Agreement, the applicant shall be given the opportunity to make up any funding short fall, and if not made up by the applicant, the Municipality may request HCD for a waiver allowing the sum to exceed such limit. The approval of waivers, if recommended by HCD, shall be made by means of an amendment to this Agreement to be executed by the parties with the same formality as this Agreement. Waivers may be considered in connection with the need for additional funds arising from unforeseen conditions related to the construction rehabilitation at the property, or in connection with any other needs deemed appropriate by HCD and otherwise regarded as eligible program costs as identified herein. All additional funds, not included in the mortgage and promissory note, and provided after the mortgage and promissory note have been executed, shall be secured by means of a notice of future advance and promissory note, before such funds are expended. The notice of future advance and a copy of the promissory note shall be promptly recorded by the Municipality in the public records of Palm Beach County. (4) TERMINATION OF FUNDING: The Municipality shall take steps to terminate funding and accelerate loan repayment during the rehabilitation process if: -The applicant refuses or fails to allow the rehabilitation work to commence within thirty (30) days from construction contract award. -The applicant refuses or fails to allow completion of rehabilitation after commencement. -The applicant refuses to authorize payments associated with the project which have been deemed payable by HCD's Director. -An event of default occurs as specified in the mortgage or promissory note. The Municipality shall give the applicant notice of such termination and/or acceleration, as appropriate, with legal follow-up where necessary. (5) SUBORDINATION OF MORTGAGE: The Municipality shall establish a written policy for the future subordination of mortgages taken in connection with this Agreement provided that such policy aims at preserving homeownership, and City of Delray Beach Page 31 of 45 provided that the execution of such subordination preserves or enhances the encumbered property’s value, and that the execution of such subordination does not adversely affect the Municipality's financial interest in the rehabilitated property. The provisions of this clause shall survive the expiration of this Agreement. (6) SATISFACTION OF MORTGAGE: The Municipality shall issue the applicant a Satisfaction of Mortgage when the applicant has complied with all the terms and conditions contained in the mortgage and promissory note. Upon issuance, the Municipality shall record the Satisfaction of Mortgage in the public records of Palm Beach County and shall transmit the original to the applicant. The original recorded Satisfaction of Mortgage document shall be accompanied by the original Mortgage and Promissory Note when transmitted to the applicant. The provisions of this clause shall survive the expiration of this Agreement. (7) RETENTION OF APPLICANT FILES: All applicant files (files for completed projects, files that are incomplete, and files for rejected applications) shall be retained by the Municipality for a period of six (6) years from the date of final closeout of the agreement between Palm Beach County Board of County Commissioners and the State of Florida for the 2005 Disaster Recovery Initiative Program, or the statutory required period (F.S. Chapter 119), whichever is longer. The provisions of this clause shall survive the expiration of this Agreement. T. SECTION 3 REQUIREMENTS: The Municipality agrees to comply with all Section 3 requirements applicable to contracts funded through this Agreement. Information on Section 3 is available at HCD upon request. The Municipality shall include the following, referred to as the Section 3 Clause, in every solicitation and every contract for every Section 3 covered project: Section 3 Clause (1) The work to be performed under this contract is subject to the requirements of Section 3 of the Housing and Urban Development Act of 1968, as amended, 12 U. S.C. 170 1u (Section 3). The purpose of Section 3 is to ensure that employment and other economic opportunities generated by HUD assistance or HUD-assisted projects covered by Section 3 shall, to the greatest extent feasible, be directed to low-and very low-income persons, particularly persons who are recipients of HUD assistance for housing. (2) The parties to this contract agree to comply with HUD’s requirements in 24 CFR Part 135, which implement Section 3. As evidenced by their execution of this contract, the parties to this contract certify that they are under no contractual or other impediment that would prevent them from complying with the Part 135 regulations. (3) The contractor agrees to send to each labor organization or representative of workers with which the contractor has a collective bargaining agreement or other understanding, if any, a notice advising the labor organization or workers representative of the contractor’s commitment under this Section 3 clause, and will post copies of the notice in conspicuous places at the work site where both employees and applicants for training and employment positions can see the notice. The notice shall describe the Section 3 preference, shall set forth minimum number and job titles subject to hire, availability of apprenticeship and training positions, the qualifications for each; and the name and location of the person(s) taking applications for each of the positions; and the anticipated date the work shall begin. (4) The contractor agrees to include this Section 3 clause in every subcontract subject to compliance with regulations in 24 CFR Part 135, and agrees to take appropriate action, as provided in an applicable provision of the subcontract or in this Section 3 clause, upon a finding that the subcontractor is in violation of the regulations in 24 CFR Part 135. The contractor will not subcontract with any subcontractor where the contractor has notice or knowledge that the subcontractor has been found in violation of the regulations in 24 CFR Part 135. (5) The contractor will certify that any vacant employment positions, including training positions, that are filled (1) after the contractor is selected but before the contract is City of Delray Beach Page 32 of 45 executed, and (2) with persons other than those to whom the regulations of 24 CFR Part 135 require employment opportunities to be directed, were not filled to circumvent the contractor’s obligations under 24 CFR Part 135. (6) Noncompliance with HUD’s regulations in 24 CFR Part 135 may result in sanctions, termination of this contract for default, and debarment or suspension from future HUD assisted contracts. U. REPORTS: The Municipality shall submit to HCD detailed monthly and semi-annual reports as described below: (1) MONTHLY REPORT: The Municipality shall submit to HCD detailed Monthly Performance Report in the form provided as Exhibit “D” to this Agreement. Each Report must account for the total activity for which the Municipality is funded under this Agreement. The Performance Report shall be one tool that is used by HCD to assess the Municipality’s progress in implementing the project. (2) SEMI-ANNUAL REPORT: The Municipality shall submit to HCD detailed semi-annual reports in the form provided as Exhibit “E” to this Agreement. During the term of this Agreement, the Municipality shall each 31st day of March submit such report for the prior six month period beginning on the preceding 1st day of October, and ending on said 31st day of March. In addition, during the term of this Agreement, the Municipality shall each 30th day of September submit such report for the prior six month period beginning on the preceding 1st day of April, and ending on said 30th day of September. (3) CLOSEOUT REPORTS: After the completion of all activities funded under this Agreement, the Municipality shall submit to HCD the closeout reports identified as the Housing Benefit Report and the Beneficiary Data Report in the from provided as Exhibits “F” and “G” to this Agreement. (4) OTHER REPORTS: The Municipality agrees to submit to HCD any other reports required by the State in connection with activities undertaken through this Agreement including, but not limited to, reports associated with Section 3. V. MONTHLY PERFORMANCE REQUIREMENTS: The time frame for completion of all outlined activities shall be September 16, 2012. The Municipality shall meet these monthly requirements by the timely performance, documentation, and completion of the following tasks: (1) Procurement for Contractors (On-Going) Nov. & Dec., 2011 (2) Three (3) Additional Housing Units Rehabilitated January & February, 2012 (3) Final Draw Down of Rehab/Mitigation February & March, 2012 This Agreement may be amended to decrease and/or recapture grant funds from the Municipality depending upon the timely completion, or lack thereof, of the Monthly Performance Benchmarks and/or the rate of expenditure of funds, as determined by HCD. The Municipality agrees that it may be subject to decrease and/or recapture of project funds by the County if the Monthly Performance Benchmarks herein are not met. Failure by the Municipality to comply with these Performance Benchmarks may negatively impact ability to receive future grant awards. The Municipality further agrees that HCD, in consultation with any parties it deems necessary, shall be the final arbiter of the Municipality's compliance with the above. The Municipality further agrees that HCD, in consultation with any parties it deems necessary, shall be the final arbiter on the Municipality's compliance with the above. III. THE COUNTY AGREES TO: A. Provide funding for the above specified activities during the term of this Agreement, as follows: City of Delray Beach Page 33 of 45 (1) An amount of $483,366.69: For payment of rehabilitation construction costs and related expenses regarded as eligible under this Agreement (including lead-based paint expenditures such as the cost of inspections and risk assessments, abatement, and clearance testing). (2) An amount of $5,000: For temporary relocation costs to temporarily relocate the members of the household where rehabilitation is being performed. These costs shall include the cost of accommodations (hotel/motel) incurred while temporarily housing such household members away from the home being rehabilitated. (3) An amount of $50,000: For the costs of the Municipality’s employee to provide the services of the Inspector to carry out the tasks described in this Agreement. B. Provide project administration and inspection to the Municipality to ensure compliance with U.S. HUD and the Department of Labor, and applicable State, Federal and County laws and regulations. C. Monitor the Municipality at any time during the term of this Agreement. Visits may be announced or unannounced as determined by HCD and will serve to ensure compliance with State and U.S. Department of HUD regulations, that planned activities are conducted in a timely manner, and to verify the accuracy of reporting to HCD on program activities. D. The County shall perform an environmental review of each project, and review and approve all aspects and expenditures of each project as specified herein. The County shall also perform Davis Bacon Act Labor Standards monitoring and enforcement. Environmental review costs incurred by the County may be charged to the project budget identified above. City of Delray Beach Page 34 of 45 EXHIBIT “B” AUTHORIZATION TO RELEASE CONFIDENTIAL INFORMATION I, the undersigned, authorize the Federal Emergency Management Agency (FEMA), the State of Florida, and appropriate agencies of the State of Florida responsible for providing disaster assistance to release information relating to my eligibility for monetary or other forms of assistance arising from the major disasters declared: Hurricanes Katrina FEMA-DR-1602-FL (dated August 28, 2005), and/or Wilma FEMA-DR-1609-FL (dated October 24, 2005) to those agencies that provide disaster-related assistance. This authorization permits the release of information that is deemed confidential under Federal and State Privacy Acts. This authorization is given to obtain and/or provide assistance I need as a result of the prior referenced federal disaster(s) to insure that benefits are not duplicated. It includes the sharing of information about my applicati0on in FEMA’s possession or under FEMA’s control. This authorization includes only information necessary to allow the appropriate agency or organizations to determine if I am eligible for assistance from that agency or organization. This information is not to be used for any other purpose. I also understand and acknowledge that signing this does not guarantee that I will get assistance from Voluntary Agencies and/or appropriate Federal and State agencies. However, without my permission, my information cannot be shared with other agencies or organizations for consideration. I understand that I will still receive all FEMA assistance for which I am eligible. This Authorization is submitted pursuant to 28 U.S.C. § 1746 under penalty of perjury. OPTIONAL -I choose to exclude the following agencies from access to this information: I understand that it is my choice to sign this Release: Name (Printed) Date Signature Pre-Disaster Address: Current Address: Phone or Message #: FEMA Registration #: City of Delray Beach Page 35 of 45 EXHIBIT “C” CATEGORICAL EXCLUSION SUGGESTED FORMAT SUBJECT TO §58.5 PROJECT NAME AND DESCRIPTION: Include all contemplated actions which are either geographically and/or functionally part of the project. Location: Activities included in project: This project is determined to be Categorically Excluded according to: [Cite section(s) and activities that are applicable] DIRECTIONS: Once the review process for each compliance factor has been completed, the Statutory Checklist must then be filled out. Specifically, the ER must indicate whether the activity does or does not affect the resources under consideration. Consult the guidance provided in the table below or the web sites. If the project is found to require consultation with an outside agency and affects the resource in question, indicate Status as A on the worksheet and document what sources of information were used (information sources are provided in the guidance). If the activity triggers no formal compliance consultation procedures with the oversight agency, indicate the Status as B. Any compliance documentation should also be attached to the Checklist and included in the ERR. COMPLIANCE FACTORS: Statutes, Executive Orders, and Regulations listed at 24 CFR §58.5 Status A/B Compliance Documentation Historic Preservation [36 CFR Part 800] Guidance: http://www.hud.gov/offices/cpd/environment/review/historic.cfm Floodplain Management [Executive Order 11988; 24 CFR Part 55] Guidance: http://www.hud.gov/offices/cpd/environment/review/floodplain.cfm Wetland Protection [Executive Order 11990; 3 CFR, §§ 2, 5] Guidance: http://www.hud.gov/offices/cpd/environment/review/f loodplain.cfm Coastal Zone Management Act [16 U.S.C. 1451, §§ 307(c), (d)] Guidance: http://www.hud.gov/offices/cpd/environment/review/coastal.cfm Statutes, Executive Orders, and Regulations listed at 24 CFR §58.5 Status A/B Compliance Documentation Sole Source Aquifers [40 CFR Part 149] Guidance: http://www.hud.gov/offices/cpd/environment/review/aquifiers.cfm Endangered Species Act [50 CFR Part 402] Guidance: http://www.hud.gov/offices/cpd/environment/review/endangeredspecies.cfm Wild and Scenic Rivers Act [16 U.S.C. 1271, §§ 7(b), (c)] Guidance: http://www.hud.gov/ offices/cpd/environment/review/rivers.cfm City of Delray Beach Page 36 of 45 Clean Air Act [40 CFR Parts 6, 51, 93] Guidance: http://www.hud.gov/offices/cpd/environment/review/cleanair.cfm Farmland Protection Policy Act [7 CFR Part 658] Guidance: http://www.hud.gov/offices/cpd/environment/review/farmlands.cfm Environmental Justice [Executive Order 12898] Guidance: http://www.hud.gov/offices/cpd/environment/review/justice.c fm Noise Abatement and Control [24 CFR Part 51, Subpart B] Guidance: http://www.hud.gov/offices/cpd/environment/review/noise.cfm Statutes, Executive Orders, and Regulations listed at 24 CFR §58.5 Status A/B Compliance Documentation Explosive and Flammable Operations [24 CFR Part 51, Subpart C] Guidance: http://www.hud.gov/offices/cpd/environment/review/explosive.cfm Toxic Chemicals and Radioactive Materials [24CFR Part 58, § 5(i)(2)] Guidance: http://www.hud.gov/offices/cpd/environment/review/hazardous.cfm Airport Clear Zones and Accident Potential Zones [24 CFR Part 51, Subpart D] Guidance: http://www.hud.gov/offices/cpd/environment/review/airport.cfm DETERMINATION: [ ] This project converts to Exempt, per § 58.34(a)(12), because it does not require any mitigation for compliance with any listed statutes or authorities, nor requires any formal permit or license (Status "A" has been determined in the status column for all authorities). [ ] Funds may be drawn down for this (now) EXEMPT project; OR This project cannot convert to Exempt because one or more statutes/authorities require consultation or mitigation. Complete consultation/mitigation requirements, publish NOI/RROF and obtain Authority to Use Grant Funds (HUD 7015.16) per §§ 58.70 and 58.71 before drawing down funds; OR [ ] The unusual circumstances of this project may result in a significant environmental impact. This project requires preparation of an Environmental Assessment (EA). Prepare the EA according to 24 CFR Part 58 Subpart E. Subrecipient Name: Prepared by: Name Signature Date City of Delray Beach Page 37 of 45 PALM BEACH COUNTY DETERMINATION OF CATEGORICAL EXCLUSION SUBJECT TO 24 CFR PART 58.5 24 CFR PART 58.35(a) PROGRAM: 2005 DRI Program FISCAL YEAR: _______ APPLICANT/SITE LOCATION (INCLUDING MAP): PCN: I HEREBY CERTIFY THAT THE FOLLOWING ACTIVITY(S) HAVE BEEN REVIEWED AND DETERMINED CATEGORICAL EXCLUDED ACTIVITY PER 24 CFR 58.35 (a) AS FOLLOWS: (1) Acquisition, repair, improvement, reconstruction, or rehabilitation of public facilities and improvement (other than buildings) when the facilities and improvements are in place and will be retained in the same use without change in size or capacity of more than 20% (e.g. replacement of water or sewer lines, reconstruction of curbs and sidewalks, paving of streets). (2) Special projects directed to the removal of material and architectural barriers that restrict the mobility of and accessibility to elderly and handicapped persons. (3) Rehabilitation of buildings and improvements when the following conditions are met: (i) In the case of a building for residential use (with one to four units), the density is not increased beyond four units, the land use is not changed, and the footprint of the building is not increased in a floodplain or in a wetland; (ii) In the case of multi-family residential buildings: (A) Unit density is not changed more than 20%; (B) The project does not involve changes in land use from residential to non-residential; and (C) Estimated cost of rehabilitation is less than 75% of the total estimated cost of replacement after rehabilitation. (iii) In the case of non-residential structures, including commercial industrial, and public buildings: (A) Facilities and improvements are in place and will not be changed in size or capacity by more than 20%; and (B) The activity does not involve a change in land use, such as from non-residential to residential, commercial to industrial, of from one industrial use to another. (4) (i) An individual action on up to four dwelling units where there is a maximum of four units on any one site. The units can be four one-unit buildings or one four-unit building or any combination in between; or (ii) An individual action on a project of five or more housing units developed on scattered sites when the sites are more than 2,000 feet apart and there are not more than four housing units on any one site. (iii) Paragraphs (a)(4)(i) and (ii) of this section do not apply to rehabilitation of a building for residential use (with one to four units) (see paragraph (a)(3)(i) of this section). (5) Acquisition (including leasing) or disposition of, or equity loans on an existing structure, or acquisition (including leasing) of vacant land provided that the structure or land acquired, financed, or disposed of will be retained for the same use. (6) Combination of the above. Subrecipient Name: Prepared by: Name Signature Date City of Delray Beach Page 38 of 45 EXHIBIT “D” PALM BEACH COUNTY HOUSING & COMMUNITY DEVELOPMENT DRI-3 PROGRAM HOUSING REHABILITATION ACTIVITY MONTHLY PERFORMANCE REPORT Date Submitted: Subrecipient: Project Name: Reporter/Title: Period Covering: Month: _________________ Year: __________________ 1. New applications received during this reporting period: ____________ 2. Files completed/forwarded to HCD this reporting period: ____________ 3. Files approved for contractor procurement: ____________ 4. Rehab contracts executed this reporting period: ____________ 5. Dollar amount of contracts executed: ____________ 6. Rehab projects started this reporting period: ____________ 7. Rehab projects completed this reporting period: ____________ 8. Funds requested from HCD for payment(s): $ ____________ PLEASE LIST THE ADDRESSES WHERE REHABILITATION CONTRACTS HAVE BEEN EXECUTED THIS MONTH: ADDRESSES EXPENDITURES 1. 2. 3. 4. 5. PROJECT ACTIVITIES Describe your accomplishments during this reporting period: ________________________ ________________________________________________________________________ ___________________ _____________________________________________________ ________________________________________________________________________ Describe any problems encountered during this reporting period: _____________________ ________________________________________________________________________ ________________________________________________________________________ _______________________ _________________________________________________ Other Comments: _________________________________________________________ ________________________________________________________________________ ________________________________________________________________________ I, _____________________________________, do hereby certify that the City of Delray Beach has met all of its Monthly Performance Requirements (Exhibit A, Paragraph V) referenced in the Agreement during this reporting period. _______________________________________ Name & Title of Certifying Representative Send Monthly Performance Report to: Bud Cheney, Manager of CREIS Department of Housing and Community Development 100 Australian Avenue, Suite 500 West Palm Beach, FL 33406 City of Delray Beach Page 39 of 45 EXHIBIT “E” PALM BEACH COUNTY HOUSING & COMMUNITY DEVELOPMENT CONTRACTUAL OBLIGATIONS AND MBE REPORT Project Name: City of Delray Beach -Housing Rehabilitation Report Date: Page of Pages Report Period: [ ] October 1, 20 , to March 31, 20 . [ ] April 1, 20 , to September 30, 20 . Prepared By: (1) Contractor/Subcontractor name and address (fill in for each contractor or subcontractor) Include all professional services such as consultants, engineers, architects, etc. that are funded under the agreement for this project. All Contractors and subcontractors (with contracts over $10,000) that are paid with CDBG funds must be included. Do not list previously reported information. (2) Prime Contractor Employer Identification Number * (3) Subcontractor Employer Identification Number (see below) (4) Amount of Contract or Subcontract (5) Type of Trade Code (1 thru 3) (see below) (6) Contractor or subcontractor Racial/Ethnic Code (1 thru 6) (see below) (7) WBE (yes or no) (8) Section 3 (yes or no) Name: Street: City, State, Zip: Name: Street: City, State, Zip: Name: Street: City, State, Zip: Name: Street: City, State, Zip: Name: Street: City, State, Zip: (3) When subcontractor employer identification is used, information in columns 4 through 8 must reflect the subcontractor information, not the prime contractor’s information; also include the prime contractor’s employer identification number. * Employer identification number or social security number (5) Type of Trade Codes: 1 = New Construction (including rehab, water, and sewer 2= Education/Training 3= Other (including supply, professional services and other activities except construction and education/training) (6) Racial/Ethnic Code: 1=White American 4= Hispanic American 2= Black American 5= Asian/Pacific American 3= Native American 6=Hasidic Jews (7) WBE = Women Business Enterprise City of Delray Beach Page 40 of 45 EXHIBIT “F” PALM BEACH COUNTY HOUSING & COMMUNITY DEVELOPMENT HOUSING BENEFIT REPORT Project Name: City of Delray Beach 2005 DRI Housing Rehabilitation Prepared By: Report Date: Page ____of _____ Pages Name of Owner Name of Occupant Street Address (Street, city, zip) (If replacement, new address) Total Cost of Rehab or Replacement Total DRI Funds Invested Date Completed Rehab (Yes/No) Replacement (Yes/No) No. Of Bedrooms Unit Made Handicapped Accessible (Yes/No) Unit Qualified as “energy star” (Yes/No) Unit Brought into Compliance with Lead Safety Requirements (Yes/No) $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ City of Delray Beach Page 41 of 45 EXHIBIT “G” PALM BEACH COUNTY HOUSING & COMMUNITY DEVELOPMENT BENEFICIARY DATA REPORT Project Name: City of Delray Beach – 2005 DRI Housing Rehabilitation Prepared By: Report Date: Number Total Beneficiaries: Proposed Total Beneficiaries: Actual LMI Beneficiaries: Proposed (80% of AMI or Less) LMI Beneficiaries: Actual (80% of AMI or Less) VLI Beneficiaries: Proposed (50% of AMI or Less) VLI Beneficiaries: Actual (50% of AMI or Less) Male Female Disabled Female Head of Household Elderly Hispanic Ethnicity No. of Units Owner Occupied No. of Units Renter Occupied White African American Asian American Indian or Alaskan Native Native Hawaiian Pacific Islander American Indian or Alaskan Native and White Asian and White African American and White American Indian/Alaskan Native and African American Other Multi-Racial Total: (Same as Total Beneficiaries: Actual shown above) City of Delray Beach Page 42 of 45 EXHIBIT “H” Unspecified Site Strategy for Housing Related Activities as identified in 24 CFR Part 58.35(a) Updated March 2010 Project Identification: _________________________________________ Contract Number Preparer: _________________________________________ Typed Name and Title Responsible Entity: _________________________________________ Name of Local Government Month/Year: _________________________________________ City of Delray Beach Page 43 of 45 CERTIFICATION OF CATEGORICAL EXCLUSION (subject to 58.5) Per 24 CFR 58.35 (a) Contract Number:____________________________ Fiscal Year: ____________________________ __ APPLICANT/SITE LOCATION (INCLUDING MAP): ___________________________________________ PCN: ______________________________________ I hereby certify that the following activities comprising the Housing Grant have been reviewed and determined Categorical Excluded Activity per 24 CFR 58.35 (a) as follows: ___ (1) Acquisition, repair, improvement, reconstruction, or rehabilitation of public facilities and improvements (other than buildings) when the facilities and improvements are in place and will be retained in the same use without change in size or capacity of more than 20% (e.g. replacement of water or sewer lines, reconstruction of curbs and sidewalks, repaving of streets). ___ (2) Special projects directed to the removal of material and architectural barriers that restrict the mobility of and accessibility to elderly and handicapped persons. ___ (3) Rehabilitation of buildings and improvements when the following conditions are met: (i) In the case of a building for residential use (with one to four units) the density is not increased beyond four units, the land use is not changed, and the footprint of the building is not increased in a floodplain or in a wetland; (ii) In the case of multifamily residential buildings: (A) Unit density is not changed more than 20%; (B) The project does not involve changes in land use from residential to non-residential: and (C) The estimated cost of rehabilitation is less than 75% of the total estimated cost of replacement after rehabilitation. (iii) In the case of non-residential structures, including commercial, industrial, and public buildings: (A) The facilities and improvements are in place and will not be changed in size of capacity by more than 20%: and (B) The activity does not involve a change in land use, such as from non-residential to residential, commercial to industrial, of from one industrial use to another. ___ (4) An individual action on a one-to-four family dwelling or an individual action on a project of five or more units developed on scattered sites when the sites are more than 2,000 feet apart and there are not more than four units on any one site. ___ (5) Acquisition or disposition of an existing structure or acquisition of vacant land provided that the structure or land acquired or disposed of will be retained on any one site. ___ (6) Combination of the above activities. Subrecipient Name: ____________________________________ _____________________ Prepared by: Signature: ____________________________________________ Date: ________________ City of Delray Beach Page 44 of 45 Printed Name: _________________________________________ Title: _________________ STATUTORY WORKSHEET 24 CFR §58.5 STATUTES, EXECUTIVE ORDERS & REGULATIONS Use this worksheet only for projects that are Categorically Excluded per 24 CFR § 58.35(a). NOTE: Compliance with the laws and statutes listed at 24 CFR §58.6 must also be documented. PROJECT NAME and DESCRIPTION -Include all contemplated actions that logically are either geographically or functionally part of the project: _________________________________________________ This proposal is determined to be __________________ according to: (Cite Section(s)) __________________ DIRECTIONS -Write “A” in the Status Column when the proposal, by its scope and nature, does not affect the resources under consideration; or write “B” if the project triggers formal compliance consultation procedures with the oversight agency, or requires mitigation (see Statutory Worksheet Instructions). Compliance documentation must contain verifiable source documents and relevant base data. Compliance Factors: HISTORIC PRESERVATION 36 CFR PART 800 FLOODPLAIN MANAGEMENT 24 CFR §55 & EXECUTIVE ORDER 11988 WETLAND PROTECTION EXECUTIVE ORDER 11990 COASTAL ZONE MANAGEMENT ACT SECTIONS 307(c) & (d) SOLE SOURCE AQUIFERS 40 CFR 149 ENDANGERED SPECIES ACT 50 CFR 402 WILD AND SCENIC RIVERS ACT SECTIONS 7(b) & (c) CLEAN AIR ACT SECTIONS 176(c)(d) & 40 CFR 6, 51, 93 FARMLAND PROTECTION POLICY ACT 7 CFR 658 ENVIRONMENTAL JUSTICE EXECUTIVE ORDER 12898 NOISE ABATEMENT & CONTROL 24 CFR §51B EXPLOSIVE & FLAMMABLE OPERATIONS 24 CFR §51C HAZARDOUS, TOXIC OR RADIOACTIVE MATERIALS & SUBSTANCES 24 CFR 58.5(i)(2) AIRPORT CLEAR ZONES & ACCIDENT POTENTIAL ZONES 24 CFR 51D STATUTES, EXECUTIVE ORDERS AND REGULATIONS LISTED AT 24 CFR §58.5 COMPLIANCE A/B DETERMINATION City of Delray Beach Page 45 of 45 OTHER FACTORS A/B SOURCE OR DOCUMENTATION FLOOD DISASTER PROTECTION ACT [FLOOD INSURANCE -§58.6(A)] COASTAL BARRIER RESOURCES ACT [COASTAL BARRIER IMPROVEMENT ACT -§58.6(C)] AIRPORT RUNWAY CLEAR ZONE OR CLEAR ZONE DISCLOSURE [§58.6(D)] Determination: This project converts to Exempt, per Section 58.34(a)(12), because it does not require any mitigation for compliance with any listed statutes or authorities, nor requires any formal permit or license (Status "A" has been determined in the status column for all authorities); Funds may be committed and drawn down for this (now) EXEMPT project; or This project cannot convert to Exempt status because one or more statutes or authorities require formal consultation or mitigation. Complete consultation /mitigation protocol requirements, publish NOI/RROF and obtain Authority to Use Grant Funds (HUD 7015.16) per Section 58.70 and 58.71 before committing or drawing down funds; or The unusual circumstances of this project may/will result in a significant environmental impact. This project requires preparation of an Environmental Assessment (EA). Prepare the EA according to 24 CFR Part 58 Subpart E. ____________________________________________________________ PREPARER SIGNATURE _______________________________ _____________________________ PREPARER NAME & TITLE ____________________________________________________________ DATE ____________________________________________________________ RESPONSIBLE ENTITY /MUNICIPAL OFFICIAL SIGNATURE ____________________________________________________________ NAME & TITLE: ____________________________________________________________ DATE MEMORANDUM TO: Mayor and City Commissioners FROM: Lula Butler, Director, Community Improvement THROUGH: David Harden, City Manager DATE: November 29, 2011 SUBJECT: AGENDA ITEM 8.H. -REGULAR COMMISSION MEETING OF DECEMBER 6, 2011 WORKFORCE HOUSING COVENANT AGREEMENT/BAMFOUR, LLC/DKB REALTY INVESTMENT, INC./MATHIAS DEVELOPMENT, INC. ITEM BEFORE COMMISSION City Commission consideration and approval of the Workforce Housing Covenant between the City of Delray Beach and Bamfour, LLC, DKB Realty Investment, Inc. and Mathias Development, Inc., pursuant to the requirements under Section 4.7 of the Land Development Regulations (LDR's). BACKGROUND The Developer of the Midtown project has requested the City enter into the attached Workforce Housing Covenant, pursuant to Section 4.7.4 of the LDR's that grants to the Developer certain density bonus units beyond the base number allowed per the existing Zoning Ordinance after performance standards have been met. In addition, LDR Section 4.4(G)(5) requires a minimum of 20% workforce units, consisting of moderate-income households at rental rates which do not exceed a certain percentage of the Department of Housing and Urban Development-determined fair market rent for the area. The agreement further provides for rules governing the rental and future sale of Workforce units. Additional restrictions, pursuant to the Workforce Ordinance, include monthly reports from the developer documenting compliance with the Covenant, duration of the agreement and the conditions and rights of the City of review and to enforce compliance with all provisions of the covenant. RECOMMENDATION Staff is recommending City Commission approval of the Workforce Housing Covenant , as proposed between the City and Bamfour, LLC, DKB Realty Investment, Inc., and Mathias Development, Inc. 1 Prepared by and Return to: Brian Shutt, Esq., City Attorney City of Delray Beach, Florida 200 NW 1st Avenue Delray Beach, FL 33444 WORKFORCE HOUSING COVENANT THIS WORKFORCE HOUSING COVENANT (the “Covenant”) is entered into as of the ____ day of _______, 2011, by the CITY OF DELRAY BEACH, a Florida Municipal Corporation, (referred to herein as “City”), and BAMFOUR, LLC, a Florida limited liability company, DKB REALTY INVESTMENT, INC., a Florida Corporation, and MATHIAS DEVELOPMENT, INC., a Florida Corporation (collectively referred to herein as “Developer”, which term shall include any successor to Developer as owner of the entire Development). RECITALS A. City has implemented affordable housing requirements as set forth in Article 4.7 of the Delray Beach Land Development Regulations (“Regulations”) by establishing a Family/Work Force Housing Program (hereinafter referred to as the “Affordable Housing Program”) for the City of Delray Beach. Article 4.7 of the Regulations grants to Developer certain density bonus Units (additional market rate Units) beyond the base number allowed per existing City Zoning Ordinance after performance standards have been met. B. Developer desires to be part of the Affordable Housing Program with respect to that certain real property which is owned by the Developer and is located in the SAD Zoning District in Delray Beach, Florida, and more particularly described in Exhibit “A” which is attached hereto and incorporated by reference herein (“Real Property”). Developer has agreed to provide affordable rental housing Units within the residential development project (“Development”) to be constructed on the Real Property. C. Pursuant to the City’s Affordable Housing Program and via Ordinance 46-07, residential development in the SAD Zoning District must include thirty-two (32) Workforce Units consisting of Moderate Income Households at rental rates which do not exceed a certain percentage of the HUD determined fair market rent for the area. D. Pursuant to Article 4.7 of the Regulations, the Developer has agreed to enter into this Covenant to evidence of record the affordable housing covenant against the Real Property. 2 E. This Covenant shall apply and be enforceable against Developer and all current and future Owners, as applicable, during the term of this Covenant and shall restrict the sale, resale, rental and use of the applicable housing as provided herein. NOW, THEREFORE, City and Developer hereby agree as follows: I. DEFINITIONS The following terms not otherwise defined herein shall have the meanings set forth below for purposes of this Covenant, and if a term is defined in the Regulations, the Regulations shall control: 1.1. Adjusted Median Income (A.M.I.) – The Palm Beach County median income, based on a family of four, as published by Florida Housing Finance Agency. 1.2. Affordability Controls – Restrictions placed on dwelling Units by which the rent of such Units and/or the income of the purchaser or lessee will be restricted in order to ensure that the Units remain affordable to moderate income households. 1.3. City – The City of Delray Beach, Florida. 1.4. CRA – The Delray Beach Community Redevelopment Agency 1.5. Development – The housing development at the Real Property for which approvals of density bonus Units have been granted by the City to the Developer. 1.6. Eligible Occupant – A household who is income eligible to rent a Workforce Housing Unit. Priority will be given to persons who have lived or worked within the City limits of Delray Beach continually for one year immediately prior to the date of application for a Workforce Housing Unit in the Development and who are income eligible. 1.7. Exempt Transfer – A Transfer of all of the Development, as opposed to a Transfer of one or more individual Units that are separate from a Transfer of the entire Development. 1.8. First Time Home Buyer – A person who has not held ownership in a residence within the past three years. 1.9. HUD – The United States Department of Housing and Urban Development. 1.10. Household – A single person living alone, or two or more persons sharing residency, with a combined income available to cover household expenses. 3 1.11. Moderate Income Household – A household with a gross, combined income between 81% and 120% of the Palm Beach County Adjusted Median Income (as defined by the Florida Housing Finance Corporation) as published more specifically in the “Income Limits Florida Housing Finance Corporation CWHIP Homeownerhip Program” table for West Palm Beach – Boca Raton HMFA (Palm Beach) area. 1.12. Purchase Price or Sales Price – All consideration paid for the Transfer of a Unit either at or outside of closing, but shall not include any proration amounts, taxes, costs and expenses of obtaining financing, the fair market value of furnishings or personal property, lender fees, title insurance fees, closing costs, inspection fees, or other normal and customary costs related to the purchase of property but not paid directly to the seller. 1.13. Transfer – Any sale, assignment or transfer, voluntary or involuntary, or by operation of law (whether by deed, contract of sale, gift, devise, bequest, trustee’s sale, deed in lieu of foreclosure, or otherwise) of any interest in a Unit, including but not limited to, a fee simple interest, a joint tenancy interest, a tenancy in common, a life estate, a leasehold interest (except for an Affordable Housing Unit lease as permitted by this Covenant), or any interest evidenced by a land contract by which possession of such Unit is transferred while the existing Unit Owner retains title. 1.14. Unit – A single family, condominium, townhouse, or apartment residence located in the Development. 1.15. Unit Owner – The record title owner at any time of a Unit 1.16. Workforce Housing Unit or Workforce Unit – A dwelling unit for which the rent or mortgage payment (including principal, interest, taxes and Insurance (“P.I.T.I.”)) does not exceed 35% of the gross income of households that classify as moderate income households and meets the other requirements of the Affordable Housing Program. II. RENTAL OF UNITS 2.1. The Development shall be subject to this Covenant, and each lessee shall be an Eligible Occupant, except as provided in Section 2.5 below. 2.2. In no event shall any Unit in the Development be used for transient, interval or timeshare rental or ownership. 2.3. At all times, at least thirty-two (32) of all Units in the Development must be Workforce Housing Units that are affordable to Moderate Income Households. 2.3.1. Workforce Housing Units targeted to Moderate Income Households at 81% to the 120% affordability level of the Palm Beach County median income, adjusted for family size, shall not have rental rates that exceed 140% rent limit 4 for the area (as defined by the Florida Housing Finance Corporation) as published more specifically in “Rent Limits Florida Housing Finance Corporation State Housing Initiatives Program (SHIP)” table for West Palm Beach – Boca Raton HMFA (Palm Beach) area. 2.3.2. No Workforce Housing Units shall be offered for rent to the general public until all requirements of this Covenant are met. 2.3.3. No efficiency or studio type Workforce Housing Units are allowed. 2.4. The Developer shall provide Workforce Housing Units that include Unit types in the same proportion as the market rate housing unit types. The following conditions must be met: 2.4.1. The proportion of one (1) bedroom Workforce Units to total Workforce Units may not exceed the proportion of one (1) bedroom market rate Units to total market rate Units. 2.4.2. The proportion of two (2) bedroom Workforce Units to Total Workforce Units may not exceed the proportion of two (2) bedroom market rate Units to total market rate Units. 2.4.3. The proportion of three (3) bedroom Workforce Units to total Workforce Units must meet or exceed the proportion of three (3) bedroom market rate Units to total market rate Units, unless four plus (4+) bedroom Workforce Units are provided. 2.4.4. The proportion of four plus (4+) bedroom Workforce Units to total Workforce Units must meet or exceed the proportion of four plus 4+ bedroom market rate Units to total market rate Units. 2.4.5. If the Development contains a mix of different types of Units, (e.g. condominium, townhouse, detached, etc), the proportion of Workforce Units of each type to total Workforce Units must be approximately the same as the proportion of market rate Units of each type to total market rate Units. 2.4.6. If the development includes both for sale and for rent Units, the proportion of for rent Workforce Units to for sale Workforce Units must not exceed the proportion of for rent market rate Units to for sale market rate Units; provided however if the Workforce Housing Units are funded under Florida Housing Finance Corporation’s Housing Credit or SAIL Programs, the proportionality requirement herein stated shall not apply if the Development provides at least thirty two (32) of the “for sale” Units as Workforce Housing Units. 5 2.4.7. The total number of one bedroom Units shall not exceed 30% of the total number of Units in the Project, including both Workforce Units and market rate Units. 2.5. Workforce Housing Units offered for rental shall be marketed continuously as Workforce Housing Units. In the event that, notwithstanding the marketing efforts, Workforce Housing Unit(s) offered for rental remain vacant for fortyfive (45) days or more due to a lack of Eligible Occupants, the Workforce Unit(s) may be rented to other non-Eligible Occupants, provided that the rental rate is the same as it would have been if the occupant had been deemed to be an Eligible Occupant under the City’s Workforce Housing Ordinance. In such event, the Unit will still be considered a Workforce Housing Unit for the purposes of this Ordinance for the duration of the rental term provided, however, in no event shall there be less than fifteen percent (15%) of the Units occupied or available for occupancy at any time by Eligible Occupants. Notwithstanding the above, in the event that despite good faith marketing efforts, occupancy of fifteen percent (15%) of the Units by Eligible Occupants cannot be achieved, City and Developer shall, within 30 days of a request by Developer, negotiate in good faith to agree upon an alternative commercially reasonable percentage and this Covenant shall be amended accordingly. III. FUTURE SALE OF WORKFORCE HOUSING UNITS 3.1. Should Units be offered for sale in the future in accordance with Florida Condominium Law, only deeds of those units to be sold as Workforce Housing Units shall include reference to this Covenant. All sales contracts shall state that the Workforce Housing Unit is part of the Affordable Housing Program and subject to these Covenants. All deeds to Unit Owners of Workforce Housing Units (except for a deed for an Exempt Transfer) shall provide that the Delray Beach Community Land Trust, Inc., a Florida not for profit corporation (“DBCLT”) shall have the right of first refusal to purchase the Workforce Housing Unit on the same terms and conditions as a prospective buyer. Developer and/or the Workforce Housing Unit Owner shall notify the DBCLT and the City in writing within five (5) days after the Developer’s or Workforce Housing Unit Owner’s acceptance of a contract for sale and purchase (except for an Exempt Transfer) and shall include in the notice a true and correct copy of the contract. The DBCLT Trust shall have ten (10) business days after receipt of the written notice and contract to exercise its right to purchase the Unit on the same terms as stated in the contract, except as stated herein. The DBCLT shall deliver written notice of its exercise to purchase the Workforce Housing Unit to the Developer/Workforce Housing Unit Owner within ten (10) days after the receipt by the DBCLT of the Developer’s/Unit Owner’s written notice. The DBCLT shall close the transaction within thirty (30) business days after its election to exercise its right of first refusal. In the event the DBCLT is not then in existence or no longer qualifies to act as a Sub-Recipient for the City, then the City, its successors and assigns may exercise the right of first refusal. 6 3.2. All purchasers of Workforce Housing Units (except a purchaser pursuant to an Exempt Transfer) shall be Moderate Income Households and must be First Time Home Buyers. 3.3. Owners of Workforce Housing Units (other than the Developer) shall be required to occupy the Unit. If, during ownership, the Owner is unable to continuously occupy the Unit due to illness or incapacity, based upon evidence and application made to the City, City may in its discretion, excuse compliance with this requirement. 3.4. Closing costs and title insurance shall be paid pursuant to the custom and practice in Palm Beach County at the time of closing. No charges or fees shall be imposed by the seller on the purchaser of a Workforce Housing Unit which are in addition to or more than charges imposed upon purchasers of market rate Units, except for administrative fees charged by the City/CRA, or their designee. 3.4.1. The maximum sales price of a Workforce Housing Unit (except for an Exempt Transfer) shall be established by the City Community Improvement Department based on a formula that considers the prevailing institutional lender mortgage interest rates, as approved by the City Commission by resolution. 3.5. Except for an Exempt Transfer, no Workforce Housing Units shall be offered for sale to the general public until all requirements of this Covenant are met. Each purchaser shall be an Eligible Occupant. 3.6. Except as expressly permitted by this Covenant, no Workforce Housing Unit may be transferred. 3.7. At all times, at least thirty-two (32) of all Units in the Development must be Workforce Housing Units that are affordable to Moderate Income Households. 3.8. Not less than ten (10) calendar days prior to the closing on any sale or resale (except for an Exempt Transfer), the City shall be notified of the sale or resale, and the City shall be provided with a true and correct copy of the proposed contract. Developer or Workforce Housing Unit Owner, respectively, shall deliver written notice of the intent to sell to the City, and shall provide to the City all information which is necessary for the City to determine that the proposed sale complies with the terms, restrictions, and conditions contained in this Covenant. The information shall be provided to the City on City approved forms which shall be executed under oath by the proposed transferor or transferee, as applicable. The City shall have ten (10) business days after the receipt of the written notice to determine and notify the Developer and/or Workforce Housing Unit Owner whether the proposed transfer is in compliance with the terms, conditions, and restrictions contained in this Covenant. If not, the proposed transfer shall not be made. If the City does not deliver written notice to Developer and/or Workforce Housing Unit Owner with said 10-day period that the proposed contract is not in compliance, such contract shall be deemed approved by the City. City shall have the right to waive the notice requirements at its sole discretion as circumstances may warrant to 7 facilitate sale of Workforce Housing Units. Each contract for sale and purchase of a Workforce Housing Unit (except for a deed for an Exempt Transfer) shall contain a clause which subjects the proposed Transfer to the prior review of the City. IV. ADDITIONAL RESTRICTIONS 4.1. All Workforce Housing Units constructed or rehabilitated in the Project shall be situated within the Real Property so as not to be in less desirable locations than market-rate Units in the Development and shall, on average, be no less accessible to public amenities, such as open space, as the market-rate Units. 4.2. Workforce Housing Units shall be integrated with the rest of the Development and shall be compatible in exterior design, appearance, construction, and quality of materials and contain comparable HVAC systems and appliances with market rate Units and provide them as standard features. All Workforce Housing Units shall contain comparable square footage to the corresponding market-rate Unit. 4.3. The construction schedule for Workforce Housing Units shall be consistent with or precede the construction of market rate Units. 4.4. There shall be no lot premiums charged on the Workforce Housing Units 4.5. Resale and subsequent rentals of Workforce Housing Units. To maintain the availability of Workforce Housing Units which are constructed in the Development, the following resale and/or rental conditions are imposed on the Workforce Housing Units and the same shall also be included in the deed: a. All Workforce Housing Units shall remain affordable for a period of no less and no more than forty (40) years commencing from the date of initial occupancy of the Unit. b. Except for an Exempt Transfer, all Workforce Housing Units must be rented or sold to all Eligible Occupants except as otherwise provided in Section 2.5. c. If the Units in the Development are part of a condominium, cooperative, homeowners association or similar community, these Covenants shall be incorporated into the governing documents of such community and the governing documents shall be approved by the City Attorney. The governing documents may not be amended without the City’s consent. d. Workforce Housing Unit resales shall be limited to Households of the same category relative to income. 8 e. The sales price of Workforce Housing Units may not exceed the upper limit of affordability for the income category to which the Unit was originally assigned. f. Transfers of title under the following circumstances shall be allowed, and are not subject to the Affordability Controls included in this Covenant: i. Transfers by inheritance to the purchaser-owner's surviving spouse, qualified domestic partner, or lineal descendants, or; ii. Transfers of title to a spouse as part of a divorce decree, or to a qualified domestic partner as part of a court approved property settlement agreement; iii. Acquisition of title or interest therein by an existing Owner’s spouse if it is in conjunction with marriage of the Owner and his spouse, or by an existing Owner’s qualified domestic partner; or iv. Exempt Transfers. 4.6. No resales of Workforce Housing Units are permitted until the requirements of this Covenant are met. 4.7. No Workforce Housing Unit may be sublet or assigned to a tenant(s) or purchaser(s) whose income exceeds the percent of AMI under which the Unit was originally approved, except as otherwise provided in Section 2.5. 4.8. Household income is determined by the cumulative income of all tenants or purchasers under one (1) roof. 4.9. The maximum permitted resale price may not exceed the initial sales price of the Workforce Housing Unit, subject to an increase at the same rate as the Palm Beach County AMI has increased from the initial date of purchase. 4.10. Nothing contained in this Covenant shall require an Eligible Occupant to vacate a rental Workforce Housing Unit or to sell a Workforce Housing Unit if the tenant(s) or purchaser(s) income respectively, later exceeds AMI, provided such Household initially qualified as Eligible Occupants for such lease or purchase. 4.11. The forms of the lease, contract for sale (except for an Exempt Transfer), and deed for the rental and sale of a Workforce Housing Unit, respectively, shall be approved in advance for compliance with this Covenant by the City Attorney, which approval shall not be unreasonably withheld. 9 4.12. To ensure the Developer’s compliance with the Affordability Controls and restrictions contained in this Covenant, not later than the tenth (10th) day of each calendar month for every month during the term of this Covenant, Developer shall deliver a written report (“Report”) to the City containing such information and documents as the City may require to verify that the Developer is in compliance with this Covenant. The Report shall be current as of the first day of the month in which the Report is delivered to the City. The form of the Report shall be approved by the City Attorney. At minimum, the Report shall contain the following information and documents with respect to each Workforce Housing Unit: 4.12.1. With respect to Workforce Housing Unit leases: a. Name and address of each Unit Eligible Occupant and member of the Household. b. Date lease term commenced. c. Date lease term terminates. d. Amount of monthly rent due under the lease. e. Qualifying Household income. f. Unit address. g. Number of bedrooms and baths in each Unit. h. Household size. i. Whether Unit is occupied or vacant. j. Total number of Workforce Housing Units presently leased. 4.12.2. With respect to Workforce Housing Unit sales: a. Total number of Workforce Housing Units listed for sale. b. Total number of Workforce Housing Units transferred by the Developer. c. Date of each sale closing. d. Household size. e. Name and address of all Eligible Occupants. 10 f. Number of bedrooms and baths in Unit. g. A copy of the recorded instrument which transferred the Unit. h. Unit address. i. Qualifying Household income. 4.12.3. The Report shall be executed under Oath by the Developer or its authorized agent or representative. 4.13. Provided no Units are offered for sale by the Developer and the Developer owns all of the Units in the Development, the Developer may redesignate a Unit as a rental Workforce Housing Unit or redesignate a Unit as a market rate rental Unit provided, at all times, there is not less than thirty two (32) rental Workforce Housing Units in the Development. 4.14. At any time and from time to time, the City may conduct written or oral surveys of Eligible Occupants and Unit Owners to verify the Developer’s compliance with the terms and conditions of this Covenant, and City may enter the Development and access the Workforce Housing Units for the purpose of conducting personal interviews and obtaining other information reasonably necessary to verify Developer’s compliance with the City’s Workforce Housing requirements. 4.15. Developer shall comply with all applicable Federal, State and local laws, rules, regulations and ordinances relating to the sale and rental of real property. 4.16. Developer shall promptly notify the City upon the occurrence of an Exempt Transfer. V. DURATION AND AMENDMENT 5.1. For both sale and rental of Workforce Housing Units, this Covenant shall remain in effect for forty (40) years from the date of recording of this Covenant in the Public Records of Palm Beach County, Florida. This Covenant shall apply to any replacement structure or structures constructed if a structure containing a Workforce Housing Unit or Units is demolished or destroyed, provided that if demolition or destruction of a structure containing Workforce Housing Units occurs thirty-five (35) years after recording of this Covenant and demolition or destruction was unintentional, this Covenant with respect to the Unit in the structure shall terminate on demolition or destruction. 5.2. Covenant Running With Land. The terms of this Covenant constitute covenants running with the Real Property and each designated Workforce Housing Unit. 11 This Covenant shall bind, and the benefit hereof shall inure to, Developer, the Workforce Housing Unit Owners, DBCLT, and the City, and any heirs, legal representatives, executors, successors and assignees thereof. The Workforce Housing Units shall be held, conveyed (including pursuant to an Exempt Transfer), hypothecated, encumbered, leased, rented and occupied, subject to the covenants, restrictions and limitation set forth herein, which are intended to constitute both equitable servitudes and covenants running with the Real Property. Any lessee, buyer, or transferee of a Workforce Housing Unit or any portion thereof, by acceptance of a lease or a deed therefor, or by the signing a lease or of a contract to purchase the same, shall, by acceptance of such lease or deed or by the signing of such contract or agreement, be deemed to have consented to and accepted the covenants, conditions, restrictions and limitations set forth herein, whether or not there is any express reference to this Covenant in such lease, deed or contract. 5.3. Amendment. This Covenant may be amended at any time by a recorded document executed and acknowledged by the Unit Owners (including Developer, should Developer hold a Unit for sale) and the City. An amendment may be effective as to some but not all of the Units, in which event it need only be approved by the Unit Owner(s) of the Unit(s) so affected. VI. ENFORCEMENT 6.1. Right to Enforce. The City reserves, and Developer, all proposed lessees, buyers and the Workforce Housing Unit Owners are deemed to have granted the City the right to review and enforce compliance with all provisions of this Covenant, as further set forth in this Article VI. (a) In the event that the City has reasonable cause to believe that the Developer, lessee, occupant, Household or a Workforce Housing Unit Owner is in default of any of the provisions of this Covenant, then the City Manager, or his or her designee, may inspect the Unit owned by the Developer or such Workforce Housing Unit Owner at any reasonable time and from time to time, after providing the Developer, lessee or such Workforce Housing Unit Owner not less than twenty-four (24) hours advance written notice, except in the case of an emergency when less advance notice may be given. (b) Except in the case of a default which constitutes an incurable default or involves the health, safety and welfare of Households in the Development, or in the case of an emergency (in which event no notice and opportunity to cure are required), in the event of any other default of this Covenant, the City shall give the Developer, lessee, Workforce Housing Unit Owner or Household Occupant who is in default, fifteen (15) days written notice of such default, which notice shall state the nature of the default. If the default is not cured to the satisfaction of the City within fifteen (15) days from the giving of such notice, or immediately when no notice and opportunity to cure is required, the City may pursue any or all remedies available to it, as set forth in Section 6.1(c) below. (c) The City hereby reserves the right to enforce this Covenant by pursuing any and all remedies provided by law or in equity. The City’s remedies shall 12 include, by way of example and not limitation, the right to specific performance of this Covenant; the right to a mandatory injunction requiring the sale or lease of a Workforce Housing Unit in conformance with this Covenant; the right to cancel and declare void the sale, deed, contract or lease; and the right to remove occupants, and damages and injunctive relief for breach of this Covenant. All of the remedies available to the City shall be cumulative, and the City’s election to pursue any remedy shall not preclude the City for then or later pursuing any one or more other remedies. (d) In the event City resorts to litigation with respect to any default under this Covenant, the prevailing party shall be entitled to recover its damages and costs, including expert witness fees from the party at fault. Developer shall not be liable for default that was due to misrepresentation or other wrongful act of an occupant. The party in default hereunder shall be responsible for the costs required to enforce the provisions of this Covenant. Venue for any action for breach of, or to enforce, this Covenant shall be properly in Palm Beach County, Florida. (e) In the event any Workforce Housing Unit is transferred or leased in a manner that is not in full compliance with the provisions of this Covenant, such transfer or lease shall be wholly null and void and shall confer no title or rights whatsoever upon the purported transferee or lessee. 6.2. Priority of Covenant. This Covenant shall be of equal dignity to, and shall not be subordinated to, any lien or encumbrance, including without limitation, any Institutional Lender, and shall survive and not be extinguished by the foreclosure or deedin-lieu of foreclosure regarding any such liens or encumbrances. This includes, but is not limited to, judgment liens, assessment liens, tax liens, construction liens and mortgage liens. VI. MISCELLANEOUS 7.1. No Third Party Beneficiaries. There are no intended third party beneficiaries of this Covenant, and no party other than the City shall have standing to bring an action for, breach of, or to enforce, the provisions of this Covenant, except for the Delray Beach Community Land Trust which shall be a third party beneficiary of this Covenant with respect to its right of first refusal. 7.2. Notices. Notices to any person or entity shall be given in writing and delivered in person or mailed, by certified or registered prepaid U. S. Mail, return receipt requested, to the person’s or entity’s representative set forth below (as may be changed by notice from time to time) at the address set forth below: Notices to the City shall be sent to: City of Delray Beach 100 N. W. 1st Avenue Delray Beach, Florida 33444 13 Attention: City Manager With a copy to: City Attorney City of Delray Beach 200 N. W. 1st Avenue Delray Beach, Florida 33444 Notices to the Developer shall be sent to: Bamfour, LLC 50 SE 4th Avenue Delray Beach, Florida 33483 ATTN: Mr. Bradley Morton DKB Realty Investment, Inc. 16273 Brindlewood Circle Delray Beach, Florida 33445 ATTN: Mr. David Biggs Mathias Development, Inc. 1030 S. Federal Highway, Ste. 100 Delray Beach, Florida 33483 ATTN: Mr. Robert Mathias Notices to the Delray Beach Community Land Trust, Inc. shall be sent to: Delray Beach Community Land Trust, Inc. 20 North Swinton Avenue Delray Beach, Florida 33444 Notices to a Workforce Housing Unit lessee or Workforce Housing Unit Owner may be given in like manner addressed to the applicable Unit. Such notice shall be deemed given when hand delivered or when deposited, postage prepaid, in the United States mail. 7.3. Severability. If any provision of this Covenant shall be held by a court of proper jurisdiction to be invalid or unenforceable; the remaining provisions shall survive and their validity, legality and enforceability shall not in any way be affected or impaired thereby; and the court may, but shall not be required to fashion a substitute for the provision held to be invalid or unenforceable. 7.4. Headings. The headings of the sections in this Covenant are for convenience only and shall not be used to interpret the meaning of any provision hereof. 14 7.5. Homestead Waiver. This Covenant is prior and superior to each Workforce Housing Unit Owner’s right to a homestead exemption. Each Workforce Housing Unit Owner waives the Workforce Housing Unit Owner’s homestead rights to the fullest extent that they conflict or impair the City’s rights and remedies under this Covenant. 7.6. No Guarantee. Nothing herein shall be construed or give rise to any implied representation, warranty or guarantee, and the City expressly disclaims, that any Workforce Housing Unit Owner will be able to resell his or her Workforce Housing Unit for the maximum purchase price or recover the purchase price for such Workforce Housing Unit or release for the maximum rent for such Workforce Housing Unit. Such Workforce Housing Unit Owner recognizes and accepts that his or her Unit may be less marketable than other Units in the Project and may not sell for as great a purchase price. 7.7. Governmental Functions: Notwithstanding anything to the contrary contained in this Declaration: a. Even though the City has certain contractual obligations under this Covenant such obligations shall not relieve any person subject to this Covenant, from complying with all applicable governmental regulations, rules, laws, and ordinances; b. To the extent approval or permission must be obtained from the City, such approval or permission shall be granted or denied in accordance with applicable governmental regulations, rules, laws, and ordinances, and no person shall have any vested rights; c. The City has not waived its sovereign immunity; and d. Any action by City shall be without prejudice to, and shall not constitute a limit on, impairment or waiver of, or otherwise affect City’s right to exercise its discretion in connection with its governmental or quasigovernmental functions. 7.8. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida. 7.9. DEVELOPER AND CITY HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVE THE RIGHT ANY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH THIS COVENANT AND ANY AGREEMENT EXECUTED IN CONJUNCTION HEREWITH OR THEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY. 15 7.10 This Agreement constitutes the entire agreement between City and Developer. 7.11 In the event of a default of either party to this Covenant, the non-defaulting party may bring an action at law or in equity to enforce his rights under this Covenant. The proper place of venue shall be Palm Beach County, Florida. 7.12 Conflict. To the extent of any conflict between the terms of this Covenant and Section 4.7 of the City’s Code of Ordinances in effect as of the date of the execution of this Covenant by the City, the Code of Ordinances shall control. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] [SIGNATURES ON FOLLOWING PAGES] 16 IN WITNESS WHEREOF, the City and Developer have caused this Covenant to be executed on its behalf by its respective officers thereunto duly authorized. DEVELOPER Witness BAMFOUR, LLC, ________________________________ a Florida Limited Liability Company Print name of Witness ________________________________ By: _________________________ Bradley Morton, Managing Member Witness ________________________________ Print name of Witness ________________________________ STATE OF FLORIDA COUNTY OF PALM BEACH The foregoing instrument was acknowledged before me this ___ day of _____________ 2011, by Bradley Morton, Managing Member of Bamfour LLC, a Florida limited liability company who: (please check one) ______ is (are) personally known to me OR ______ has (have) produced ______________________________________ as identification. ______________________________ My Commission Expires: Notary Public 17 Witness DKB REALTY INVESMENT, INC., ________________________________ a Florida Corporation Print name of Witness ________________________________ By: _________________________ David Biggs, President Witness ________________________________ Print name of Witness ________________________________ STATE OF FLORIDA COUNTY OF PALM BEACH The foregoing instrument was acknowledged before me this ___ day of _____________ 2011, by David Biggs, President of DBK Realty Investment, Inc., a Florida Corporation who: (please check one) ______ is (are) personally known to me OR ______ has (have) produced ______________________________________ as identification. ______________________________ My Commission Expires: Notary Public 18 Witness MATHIAS DEVELOPMENT, INC., ________________________________ a Florida Corporation Print name of Witness ________________________________ By: __________________________ Robert Mathias, Director Witness ________________________________ Print name of Witness ________________________________ STATE OF FLORIDA COUNTY OF PALM BEACH The foregoing instrument was acknowledged before me this ___ day of _____________ 2011, by Robert Mathias, Director of Mathias Development, Inc., a Florida Corporation who: (please check one) ______ is (are) personally known to me OR ______ has (have) produced ______________________________________ as identification. ______________________________ My Commission Expires: Notary Public 19 CITY OF DELRAY BEACH, a Florida Municipal Corporation ATTEST: CITY OF DELRAY BEACH, FLORIDA ________________________ By: __________________________ City Clerk Nelson S. McDuffie, Mayor Approved as to legal form and sufficiency: ________________________ City Attorney Witness ________________________________ Print name of Witness ________________________________ Witness ________________________________ Print name of Witness ________________________________ STATE OF FLORIDA COUNTY OF PALM BEACH The foregoing instrument was acknowledged before me this ___ day of _____________ 2011, by Nelson S. McDuffie, Mayor, City of Delray Beach, Florida who: (please check one) ______ is (are) personally known to me OR ______ has (have) produced ______________________________________ as identification. ______________________________ My Commission Expires: Notary Public 20 EXHIBIT “A” Legal Description of Real Property: MEMORANDUM TO: Mayor and City Commissioners FROM: Lula Butler, Director, Community Improvement THROUGH: David Harden, City Manager DATE: November 29, 2011 SUBJECT: AGENDA ITEM 8.I. -REGULAR COMMISSION MEETING OF DECEMBER 6, 2011 REVISED WORKFORCE HOUSING COVENANT HOUSING AGREEMENT/FLORANDA MHP, LLC/NEW CENTURY EXECUTIVE QUARTERS, LLC. ITEM BEFORE COMMISSION City Commission consideration and approval of a revised Workforce Housing Covenant between the City of Delray Beach and the Floranda MHP, LLC and New Century Executive Quarters, pursuant to the requirements under Section 4.7 of the Land Development Regulations (LDR's). BACKGROUND The City Commission approved the original agreement on September 20, 2011. The revision to section 1.11, Moderate Income Household, clarifies that the tables used for the income levels are published by the Florida Housing Finance Corporation, specifically in the “Income Limits Florida Housing Finance Corporation CWHIP Homeownerhip Program” table for West Palm Beach – Boca Raton HMFA (Palm Beach) area. RECOMMENDATION Staff is recommending City Commission approval of the revised Workforce Housing Covenant as proposed between the City and the Floranda MHP, LLC and New Century Executive Quarters, LLC. 1 Prepared by and Return to: Brian Shutt, Esq., City Attorney City of Delray Beach, Florida 200 NW 1st Avenue Delray Beach, FL 33444 WORKFORCE HOUSING COVENANT THIS WORKFORCE HOUSING COVENANT (the “Covenant”) is entered into as of the ____ day of _______, 2011, by the CITY OF DELRAY BEACH, a Florida Municipal Corporation, (referred to herein as “City”), and FLORANDA MHP, LLC, a Florida Limited Liability Company, and NEW CENTURY EXECUTIVE QUARTERS, LLC, a Florida Limited Liability Company (referred to herein as “Developer”, which term shall include any successor to Developer as owner of the entire Development). RECITALS A. City has implemented affordable housing requirements as set forth in Article 4.7 of the Delray Beach Land Development Regulations (“Regulations”) by establishing a Family/Work Force Housing Program (hereinafter referred to as the “Affordable Housing Program” for the City of Delray Beach. Article 4.7 of the Regulations grants to Developer certain density bonus Units (additional market rate Units) beyond the base number allowed per existing City Zoning Ordinance after performance standards have been met. B. Developer was required to be part of the Affordable Housing Program with respect to that certain real property which is owned by the Developer and is located in the PC zoning District in Delray Beach, Florida, and more particularly described in Exhibit “A” which is attached hereto and incorporated by reference herein (“Real Property”). Developer has agreed to provide affordable rental housing Units within the residential development project (“Development”) to be constructed on the Real Property. C. Pursuant to the City’s Affordable Housing Program, LDR Section 4.4.12(G)(5), residential development in the Silver Terrace Courtyards Overlay in the PC zoning district must include a minimum of 20% workforce units consisting of moderate income households at rental rates which do not exceed a certain percentage of the HUD determined fair market rent for the area. D. Pursuant to Article 4.7 of the Regulations, the Developer has agreed to enter into this Covenant to evidence of record the affordable housing covenant against the Real Property. 2 E. This Covenant shall apply and be enforceable against Developer and all current and future Owners, as applicable, during the term of this Covenant and shall restrict the sale, resale, rental and use of the applicable housing as provided herein. NOW, THEREFORE, City and Developer hereby agree as follows: I. DEFINITIONS The following terms not otherwise defined herein shall have the meanings set forth below for purposes of this Covenant, and if a term is defined in the Regulations, the Regulations shall control: 1.1. Adjusted Median Income (A.M.I.) – The Palm Beach County median income, based on a family of four, as published by Florida Housing Finance Agency. 1.2. Affordability Controls – Restrictions placed on dwelling Units by which the rent of such Units and/or the income of the purchaser or lessee will be restricted in order to ensure that the Units remain affordable to moderate income households. 1.3. City – The City of Delray Beach, Florida. 1.4. CRA – The Delray Beach Community Redevelopment Agency 1.5. Development – The housing development at the Real Property for which approvals of density bonus Units have been granted by the City to the Developer. 1.6. Eligible Occupant – A household who is income eligible to rent a Workforce Housing Unit. Priority will be given to persons who have lived or worked within the City limits of Delray Beach, Florida, continually for one year immediately prior to the date of application for a Workforce Housing Unit in the Development and who are income eligible. 1.7. Exempt Transfer – A Transfer of all of the Development, as opposed to a Transfer of one or more individual Units that are separate from a Transfer of the entire Development. 1.8. First Time Home Buyer – A person who has not held ownership in a residence within the past three years. 1.9. HUD means the United States Department of Housing and Urban Development. 1.10. Household – A single person living alone, or two or more persons sharing residency, with a combined income available to cover household expenses. 3 1.11. Moderate Income Household – A household with a gross, combined income between 81% and 120% of the Palm Beach County Adjusted Median Income (as defined by the Florida Housing Finance Corporation) as published more specifically in the “Income Limits Florida Housing Finance Corporation CWHIP Homeownerhip Program” table for West Palm Beach – Boca Raton HMFA (Palm Beach) area. 1.12. Purchase Price or Sales Price shall mean all consideration paid for the Transfer of a Unit either at or outside of closing, but shall not include any proration amounts, taxes, costs and expenses of obtaining financing, the fair market value of furnishings or personal property, lender fees, title insurance fees, closing costs, inspection fees, or other normal and customary costs related to the purchase of property but not paid directly to the seller. 1.13. Transfer means any sale, assignment or transfer, voluntary or involuntary, or by operation of law (whether by deed, contract of sale, gift, devise, bequest, trustee’s sale, deed in lieu of foreclosure, or otherwise) of any interest in a Unit, including but not limited to, a fee simple interest, a joint tenancy interest, a tenancy in common, a life estate, a leasehold interest (except for an Affordable Housing Unit lease as permitted by this Covenant), or any interest evidenced by a land contract by which possession of such Unit is transferred while the existing Unit Owner retains title. 1.14. Unit means a single family, condominium, townhouse, or apartment residence located in the Development. 1.15. Unit Owner means the record title owner at any time of a Unit 1.16. Workforce Housing Unit or Workforce Unit – A dwelling unit for which the rent or mortgage payment (including principal, interest, taxes and Insurance (“P.I.T.I.”)) does not exceed 35% of the gross income of households that classify as Moderate Income Households and meets the other requirements of the Affordable Housing Program. II. RENTAL OF UNITS 2.1. The Development shall be subject to this Covenant, and each lessee shall be an Eligible Occupant, except as provided in Section 2.5 below. 2.2. In no event shall any Unit in the Development be used for transient, interval or timeshare rental or ownership. 2.3. At all times, at least twenty (20%) percent of all Units in the Development must be Workforce Housing Units that are available to Moderate Income Households. 2.3.1. Workforce Housing Units targeted to Moderate Income Households at 81% to the 120% affordability level of the Palm Beach County median income, adjusted for family size, shall not have rental rates that exceed 140% rent limit 4 for the area (as defined by the Florida Housing Finance Corporation) as published more specifically in “Rent Limits Florida Housing Finance Corporation State Housing Initiatives Program (SHIP)” table for West Palm Beach – Boca Raton HMFA (Palm Beach) area 2.3.2. No Workforce Housing Units shall be offered for rent to the general public until all requirements of this Covenant are met. 2.3.3. No efficiency or studio type Workforce Housing Units are allowed. 2.4. The Developer shall provide Workforce Housing Units that include Unit types in the same proportion as the market rate housing unit types. The following conditions must be met: 2.4.1. The proportion of one (1) bedroom Workforce Units to total Workforce Units may not exceed the proportion of one (1) bedroom market rate Units to total market rate Units. 2.4.2. The proportion of two (2) bedroom Workforce Units to Total Workforce Units may not exceed the proportion of two (2) bedroom market rate Units to total market rate Units. 2.4.3. The proportion of three (3) bedroom Workforce Units to total Workforce Units must meet or exceed the proportion of three (3) bedroom market rate Units to total market rate Units, unless four plus (4+) bedroom Workforce Units are provided. 2.4.4. The proportion of four plus (4+) bedroom Workforce Units to total Workforce Units must meet or exceed the proportion of four plus 4+ bedroom market rate Units to total market rate Units. 2.4.5. If the Development contains a mix of different types of Units, (e.g. condominium, townhouse, detached, etc), the proportion of Workforce Units of each type to total Workforce Units must be approximately the same as the proportion of market rate Units of each type to total market rate Units. 2.4.6. If the development includes both for sale and for rent Units, the proportion of for rent Workforce Units to for sale Workforce Units must not exceed the proportion of for rent market rate Units to for sale market rate Units; provided however if the Workforce Housing Units are funded under Florida Housing Finance Corporation’s Housing Credit or SAIL Programs, the proportionality requirement herein stated shall not apply if the Development provides at least twenty percent (20%) of the “for sale” Units as Workforce Housing Units. 2.4.7. The total number of Units in the Project, including both Workforce Units and market rate Units, are based on the certified site plan for the Project. 5 2.5. Workforce Housing Units offered for rental shall be marketed continuously as Workforce Housing Units. In the event that, notwithstanding the marketing efforts, Workforce Housing Unit(s) offered for rental remain vacant for 45 days or more due to a lack of Eligible Occupants, the Workforce Unit(s) may be rented to other non eligible occupants, provided that the rental rate is the same as it would have been if the occupant had been deemed to be an Eligible Occupant under the City’s workforce housing ordinance. In such event, the Unit will still be considered a Workforce Housing Unit for the purposes of this ordinance for the duration of the rental term provided, however, in no event shall there be less than 15 percent of the Units occupied or available for occupancy at any time by Eligible Workforce Housing Occupants. Notwithstanding the above, in the event that despite good faith marketing efforts occupancy of 15 percent of the units by Eligible Workforce Housing Occupants cannot be achieved, City and Developer shall, within 30 days of a request by Developer, negotiate in good faith to agree upon an alternative commercially reasonable percentage and this Covenant shall be amended accordingly. III. FUTURE SALE OF WORKFORCE HOUSING UNITS 3.1. Should Units be offered for sale in the future in accordance with Florida Condominium Law, only deeds of those units to be sold as Workforce Housing Units shall include reference to this Covenant. All sales contracts shall state that the Workforce Housing Unit is part of the Affordable Housing Program and subject to these Covenants. All deeds to Unit Owners of Workforce Housing Units (except for a deed for an Exempt Transfer) shall provide that the Delray Beach Community Land Trust, Inc., a Florida not for profit corporation (“DBCLT”) shall have the right of first refusal to purchase the Workforce Housing Unit on the same terms and conditions as a prospective buyer. Developer and/or the Workforce Housing Unit Owner shall notify the DBCLT and the City in writing within five (5) days after the Developer’s or Workforce Housing Unit Owner’s acceptance of a contract for sale and purchase (except for an Exempt Transfer) and shall include in the notice a true and correct copy of the contract. The DBCLT Trust shall have ten (10) business days after receipt of the written notice and contract to exercise its right to purchase the Unit on the same terms as stated in the contract, except as stated herein. The DBCLT shall deliver written notice of its exercise to purchase the Workforce Housing Unit to the Developer/Workforce Housing Unit Owner within ten (10) days after the receipt by the DBCLT of the Developer’s/Unit Owner’s written notice. The DBCLT shall close the transaction within thirty (30) business days after its election to exercise its right of first refusal. In the event the DBCLT is not then in existence or no longer qualifies to act as a Sub-Recipient for the City, then the City, its successors and assigns may exercise the right of first refusal. 3.2. All purchasers of Workforce Housing Units (except a purchaser pursuant to an Exempt Transfer) shall be moderate income households and must be First Time Home Buyers. 6 3.3. Owners of Workforce Housing Units (other than the Developer) shall be required to occupy the Unit. If, during ownership, the Owner is unable to continuously occupy the Unit due to illness or incapacity, based upon evidence and application made to the City, City may in its discretion, excuse compliance with this requirement. 3.4. Closing costs and title insurance shall be paid pursuant to the custom and practice in Palm Beach County at the time of closing. No charges or fees shall be imposed by the seller on the purchaser of a Workforce Housing Unit which are in addition to or more than charges imposed upon purchasers of market rate Units, except for administrative fees charged by the City/CRA, or their designee. 3.4.1. The maximum Sales Price of a Workforce Housing Unit (except for an Exempt Transfer) shall be established by the City Community Improvement Department based on a formula that considers the prevailing Institutional Lender mortgage interest rates, as approved by the City Commission by resolution. 3.5. Except for an Exempt Transfer, no Workforce Housing Units shall be offered for sale to the general public until all requirements of this Covenant are met. Each purchaser shall be an Eligible Occupant. 3.6. Except as expressly permitted by this Covenant, no Workforce Housing Unit may be transferred. 3.7. At all times, at least twenty percent (20%) of all Units in the Development must be Workforce Housing Units that are available to moderate income families. 3.8. Not less than ten (10) calendar days prior to the closing on any Workforce Housing sale or resale (except for an Exempt Transfer), the City shall be notified of the Workforce Housing sale or resale, and the City shall be provided with a true and correct copy of the proposed contract. Developer or Workforce Housing Unit Owner, respectively, shall deliver written notice of the intent to sell to the City, and shall provide to the City all information which is necessary for the City to determine that the proposed sale complies with the terms, restrictions, and conditions contained in this Covenant. The information shall be provided to the City on City approved forms which shall be executed under oath by the proposed transferor or transferee, as applicable. The City shall have ten (10) business days after the receipt of the written notice to determine and notify the Developer and/or Workforce Housing Unit Owner whether the proposed transfer is in compliance with the terms, conditions, and restrictions contained in this Covenant. If not, the proposed transfer shall not be made. If the City does not deliver written notice to Developer and/or Workforce Housing Unit Owner with said 10-day period that the proposed contract is not in compliance, such contract shall be deemed approved by the City. City shall have the right to waive the notice requirements at its sole discretion as circumstances may warrant to facilitate sale of Workforce Housing Units. Each contract for sale and purchase of a Workforce Housing Unit (except for a deed for an Exempt Transfer) shall contain a clause which subjects the proposed transfer to the prior review of the City. 7 IV. ADDITIONAL RESTRICTIONS 4.1. All Workforce Housing Units constructed or rehabilitated in the Project shall be situated within the Real Property so as not to be in less desirable locations than market-rate Units in the Development and shall, on average, be no less accessible to public amenities, such as open space, as the market-rate Units. 4.2. Workforce Housing Units shall be integrated with the rest of the Development and shall be compatible in exterior design, appearance, construction, and quality of materials and contain comparable HVAC systems and appliances with market rate Units and provide them as standard features. All Workforce Housing Units shall contain comparable square footage to the corresponding market-rate Unit. 4.3. The construction schedule for Workforce Housing Units shall be consistent with or precede the construction of market rate Units. 4.4. There shall be no lot premiums charged on the Workforce Housing Units 4.5. Resale and Subsequent Rentals of Workforce Housing Units. To maintain the availability of Workforce Housing Units which are constructed in the Development, the following resale and/or rental conditions are imposed on the Workforce Housing Units and the same shall also be included in the deed: a. All Workforce Housing Units shall remain affordable for a period of no less and no more than forty (40) years from the date of recording of this Covenant in the Public Records of Palm Beach County, Florida. b. Except for an Exempt Transfer, all Workforce Housing Units must be rented or sold to eligible Households and Eligible Occupants except as otherwise provided in Section 2.5. c. If the Units in the Development are part of a condominium, cooperative, homeowners association or similar community, these Covenants shall be incorporated into the governing documents of such community and the governing documents shall be approved by the City Attorney. The governing documents may not be amended without the City’s consent. d. Workforce Housing Unit resales shall be limited to Households of the same category relative to income. 8 e. The Sales Price of Workforce Housing Units may not exceed the upper limit of affordability for the income category to which the Unit was originally assigned. f. Transfers of title under the following circumstances shall be allowed, and are not subject to the restrictions included in this Covenant: i. Transfers by inheritance to the purchaser-owner's surviving spouse, qualified domestic partner, or lineal descendants, or; ii. Transfers of title to a spouse as part of a divorce decree, or to a qualified domestic partner as part of a court approved property settlement agreement; or iii. Acquisition of title or interest therein by an existing Owner’s spouse if it is in conjunction with marriage of the Owner and his spouse, or by an existing Owner’s qualified domestic partner; or iv. Exempt Transfers. 4.6. No resales of Workforce Housing Units are permitted until the requirements of this Covenant are met. 4.7. No Workforce Housing Unit may be sublet or assigned to a tenant(s) or purchaser(s) whose income exceeds the percent of AMI under which the Unit was originally approved, except as otherwise provided in Section 2.5. 4.8. Household income is determined by the cumulative income of all tenants or purchasers under one (1) roof. 4.9. The maximum permitted resale price of Workforce Housing Unit may not exceed the initial Sales Price of the Workforce Housing Unit, subject to an increase at the same rate as the Palm Beach County median income has increased from the initial date of purchase. 4.10. Nothing contained in this Covenant shall require a Workforce Household to vacate a rental Workforce Housing Unit or to sell a Workforce Housing Unit if the tenant(s) or purchaser(s) income respectively, later exceeds AMI, provided such Household initially qualified as Eligible Occupants for such lease or purchase. 4.11. The forms of the lease, contract for sale (except for an Exempt Transfer), and deed for the rental and sale of a Workforce Housing Unit, respectively, shall be 9 approved in advance for compliance with this Covenant by the City Attorney, which approval shall not be unreasonably withheld. 4.12. To ensure the Developer’s compliance with the Affordability Controls and restrictions contained in this Covenant, not later than the tenth (10th) day of each calendar month for every month during the term of this Covenant, Developer shall deliver a written report (“Report”) to the City containing such information and documents as the City may require to verify that the Developer is in compliance with this Covenant. The Report shall be current as of the first day of the month in which the Report is delivered to the City. The form of the Report shall be approved by the City Attorney. At minimum, the Report shall contain the following information and documents with respect to each Workforce Housing Unit: 4.12.1. With respect to Workforce Housing Unit leases: a. Name and address of each Unit Eligible Occupant and member of the Household. b. Date lease term commenced. c. Date lease term terminates. d. Amount of monthly rent due under the lease. e. Qualifying Household income. f. Unit address. g. Number of bedrooms and baths in each Unit. h. Household size. i. Whether Unit is occupied or vacant. j. Total number of Workforce Housing Units presently leased. 4.12.2. With respect to Workforce Housing Unit sales: a. Total number of Workforce Housing Units listed for sale. b. Total number of Workforce Housing Units transferred by the Developer. c. Date of each sale closing. d. Household size. 10 e. Name and address of all Eligible Occupants. f. Number of bedrooms and baths in Unit. g. A copy of the recorded instrument which transferred the Unit. h. Unit address. i. Qualifying Household income. 4.12.3. The Report shall be executed under Oath by the Developer or its authorized agent or representative. 4.13. Provided no Units are offered for sale by the Developer and the Developer owns all of the Units in the Development, the Developer may redesignate a Unit as a rental Workforce Housing Unit or redesignate a Unit as a market rate rental Unit provided, at all times, there is not less than twenty percent (20%) rental Workforce Housing Units in the Development. 4.14. At any time and from time to time, the City may conduct written or oral surveys of Eligible Occupants and Unit Owners to verify the Developer’s compliance with the terms and conditions of this Covenant, and City may enter the Development and access the Workforce Housing Units for the purpose of conducting personal interviews and obtaining other information reasonably necessary to verify Developer’s compliance with the City’s Affordable Housing Program requirements. 4.15. Developer shall comply with all applicable Federal, State and local laws, rules, regulations and ordinances relating to the sale and rental of real property. 4.16. Developer shall promptly notify the City upon the occurrence of an Exempt Transfer. V. DURATION AND AMENDMENT 5.1. For both sale and rental of Workforce Housing Units, this Covenant shall remain in effect for forty (40) years from the date of recording of this Covenant in the Public Records of Palm Beach County, Florida. This Covenant shall apply to any replacement structure or structures constructed if a structure containing a Workforce Housing Unit or Units is demolished or destroyed, provided that if demolition or destruction of a structure containing Workforce Housing Units occurs thirty-five (35) years after recording of this Covenant and demolition or destruction was unintentional, this Covenant with respect to the Unit in the structure shall terminate on demolition or destruction. 11 5.2. Covenant Running With Land. The terms of this Covenant constitute covenants running with the Real Property and each designated Workforce Housing Unit. This Covenant shall bind, and the benefit hereof shall inure to, Developer, the Workforce Housing Unit Owners, DBCLT, and the City, and any heirs, legal representatives, executors, successors and assignees thereof. The Workforce Housing Units shall be held, conveyed (including pursuant to an Exempt Transfer), hypothecated, encumbered, leased, rented and occupied subject to the covenants, restrictions and limitation set forth herein, which are intended to constitute both equitable servitudes and covenants running with the Real Property. Any lessee, buyer, or transferee of a Workforce Housing Unit or any portion thereof, by acceptance of a lease or a deed therefor, or by the signing a lease or of a contract to purchase the same, shall, by acceptance of such lease or deed or by the signing of such contract or agreement, be deemed to have consented to and accepted the covenants, conditions, restrictions and limitations set forth herein, whether or not there is any express reference to this Covenant in such lease, deed or contract. 5.3. Amendment. This Covenant may be amended at any time by a recorded document executed and acknowledged by the Unit Owners (including Developer, should Developer hold a Unit for sale) and the City. An amendment may be effective as to some but not all of the Units, in which event it need only be approved by the Unit Owner(s) of the Unit(s) so affected. VI. ENFORCEMENT 6.1. Right to Enforce. The City reserves, and Developer, all proposed lessees, buyers and the Workforce Housing Unit Owners are deemed to have granted the City the right to review and enforce compliance with all provisions of this Covenant, as further set forth in this Article VI. (a) In the event that the City has reasonable cause to believe that the Developer, lessee, occupant, Household or a Workforce Housing Unit Owner is in default of any of the provisions of this Covenant, then the City Manager, or his or her designee, may inspect the Unit owned by the Developer or such Workforce Housing Unit Owner at any reasonable time and from time to time, after providing the Developer, lessee or such Workforce Housing Unit Owner not less than twenty-four (24) hours advance written notice, except in the case of an emergency when less advance notice may be given. (b) Except in the case of a default which constitutes an incurable default or involves the health, safety and welfare of Households in the Development, or in the case of an emergency (in which event no notice and opportunity to cure are required), in the event of any other default of this Covenant, the City shall give the Developer, lessee, Workforce Housing Unit Owner or Household Occupant who is in default, fifteen (15) days written notice of such default, which notice shall state the nature of the default. If the default is not cured to the satisfaction of the City within fifteen (15) days from the giving of such notice, or immediately when no notice and opportunity to cure is required, the City may pursue any or all remedies available to it, as set forth in Section 6.1(c) below. 12 (c) The City hereby reserves the right to enforce this Covenant by pursuing any and all remedies provided by law or in equity. The City’s remedies shall include, by way of example and not limitation, the right to specific performance of this Covenant, the right to a mandatory injunction requiring the sale or lease of a Workforce Housing Unit in conformance with this Covenant, the right to cancel and declare void the sale, deed, contract or lease, the right to remove occupants, and damages and injunctive relief for breach of this Covenant. All of the remedies available to the City shall be cumulative, and the City’s election to pursue any remedy shall not preclude the City for then or later pursuing any one or more other remedies. (d) In the event City resorts to litigation with respect to any default under this Covenant, the prevailing party shall be entitled to recover its damages and costs, including expert witness fees from the party at fault. Developer shall not be liable for default that was due to misrepresentation or other wrongful act of an occupant. The party in default hereunder shall be responsible for the costs required to enforce the provisions of this Covenant. Venue for any action for breach of, or to enforce, this Covenant shall be properly in Palm Beach County, Florida. (e) In the event any Workforce Housing Unit is transferred or leased in a manner that is not in full compliance with the provisions of this Covenant, such transfer or lease shall be wholly null and void and shall confer no title or rights whatsoever upon the purported transferee or lessee. 6.2. Priority of Covenant. This Covenant shall be of equal dignity to, and shall not be subordinated to, any lien or encumbrance, including without limitation, any Institutional Lender, and shall survive and not be extinguished by the foreclosure or deedin-lieu of foreclosure regarding any such liens or encumbrances. This includes, but is not limited to, judgment liens, assessment liens, tax liens, construction liens and mortgage liens. VI. MISCELLANEOUS 7.1. No Third Party Beneficiaries. There are no intended third party beneficiaries of this Covenant, and no party other than the City shall have standing to bring an action for, breach of, or to enforce, the provisions of this Covenant, except for the Delray Beach Community Land Trust which shall be a third party beneficiary of this Covenant with respect to its right of first refusal. 7.2. Notices. Notices to any person or entity shall be given in writing and delivered in person or mailed, by certified or registered prepaid U. S. Mail, return receipt requested, to the person’s or entity’s representative set forth below (as may be changed by notice from time to time) at the address set forth below: Notices to the City shall be sent to: City of Delray Beach 13 100 N. W. 1st Avenue Delray Beach, Florida 33444 Attention: City Manager With a copy to: City Attorney City of Delray Beach 200 N. W. 1st Avenue Delray Beach, Florida 33444 Notices to the Developer shall be sent to: New Century Companies, LLC 1030 S. Federal Highway, Suite 100 Delray Beach, Florida 33483 Notices to the Delray Beach Community Land Trust, Inc. shall be sent to: Delray Beach Community Land Trust, Inc. 20 North Swinton Avenue Delray Beach, Florida 33444 Notices to a Workforce Housing Unit lessee or Workforce Housing Unit Owner may be given in like manner addressed to the applicable Unit. Such notice shall be deemed given when hand delivered or when deposited, postage prepaid, in the United States mail. 7.3. Severability. If any provision of this Covenant shall be held by a court of proper jurisdiction to be invalid or unenforceable; the remaining provisions shall survive and their validity, legality and enforceability shall not in any way be affected or impaired thereby; and the court may, but shall not be required to fashion a substitute for the provision held to be invalid or unenforceable. 7.4. Headings. The headings of the Sections in this Covenant are for convenience only and shall not be used to interpret the meaning of any provision hereof. 7.5. Homestead Waiver. This Covenant is prior and superior to each Workforce Housing Unit Owner’s right to a homestead exemption. Each Workforce Housing Unit Owner waives the Workforce Housing Unit Owner’s homestead rights to the fullest extent that they conflict or impair the City’s rights and remedies under this Covenant. 7.6. No Guarantee. Nothing herein shall be construed or give rise to any implied representation, warranty or guarantee, and the City expressly disclaims, that any Workforce Housing Unit Owner will be able to resell his or her Workforce Housing Unit 14 for the maximum purchase price or recover the purchase price for such Workforce Housing Unit or release for the maximum rent for such Workforce Housing Unit. Such Workforce Housing Unit Owner recognizes and accepts that his or her Unit may be less marketable than other Units in the Project and may not sell for as great a purchase price. 7.7. Governmental Functions: Notwithstanding anything to the contrary contained in this Declaration: a. Even though the City has certain contractual obligations under this Covenant such obligations shall not relieve any person subject to this Covenant from complying with all applicable governmental regulations, rules, laws, and ordinances; b. To the extent approval or permission must be obtained from the City, such approval or permission shall be granted or denied in accordance with applicable governmental regulations, rules, laws, and ordinances, and no person shall have any vested rights; c. The City has not waived its sovereign immunity; and d. Any action by City shall be without prejudice to, and shall not constitute a limit on, impairment or waiver of, or otherwise affect City’s right to exercise its discretion in connection with its governmental or quasigovernmental functions. 7.8. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida. 7.9. DEVELOPER AND CITY HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVE THE RIGHT ANY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH THIS COVENANT AND ANY AGREEMENT EXECUTED IN CONJUNCTION HEREWITH OR THEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY. 7.10 This Agreement constitutes the entire agreement between City and Developer. 7.11 In the event of a default of either party to this Covenant, the non-defaulting party may bring an action at law or in equity to enforce his rights under this Covenant. The proper place of venue shall be Palm Beach County, Florida. 7.12 Conflict. To the extent of any conflict between the terms of this Covenant and Section 4.7 of the City’s Code of Ordinances in effect as of the date of the execution of this Covenant by the City, the Code of Ordinances shall control. 15 [SIGNATURES ON FOLLOWING PAGES] Signed, sealed and delivered FLORANDA MHP, LLC in the presence of: _____________________________ By:____________________________________ ___________________________ __ DAVID BIGGS, MANAGING MEMBER (Name printed or typed) _____________________________ _____________________________ (Name printed or typed) STATE OF FLORIDA COUNTY OF PALM BEACH The foregoing instrument was acknowledged before me this ____ day of ___________, 2011 by David Biggs as Managing Member of FLORANDA MHP, LLC, who is personally known to me or who has produced _____________________ as identification. ________________________________ Signature of Notary Public – State of Florida Signed, sealed and delivered NEW CENTURY EXECTIVE in the presence of: QUARTERS, LLC _____________________________ By:________________________________ _____________________________ DAVID BIGGS, MANAGING MEMBER (Name printed or typed) _____________________________ _____________________________ (Name printed or typed) STATE OF FLORIDA COUNTY OF PALM BEACH The foregoing instrument was acknowledged before me this ____ day of ___________, 2011 by David Biggs as Managing Member of NEW CENTURY EXECUTIVE QUARTERS, LLC, who is personally known to me or who has produced _____________________ as identification. ____________________________________ 16 Signature of Notary Public – State of Florida CITY OF DELRAY BEACH, a Florida Municipal Corporation ATTEST: CITY OF DELRAY BEACH, FLORIDA ________________________ By: __________________________ City Clerk Nelson S. McDuffie, Mayor Approved as to legal form and sufficiency: ________________________ City Attorney Witness ________________________________ Print name of Witness ________________________________ Witness ________________________________ Print name of Witness ________________________________ STATE OF FLORIDA COUNTY OF PALM BEACH The foregoing instrument was acknowledged before me this ___ day of _____________ 2011, by Nelson S. McDuffie, Mayor, City of Delray Beach, Florida who: (please check one) ______ is (are) personally known to me OR ______ has (have) produced ______________________________________ as identification. ______________________________ My Commission Expires: Notary Public 17 EXHIBIT “A” Legal Description of Real Property: MEMORANDUM TO: Mayor and City Commissioners FROM: Lula Butler, Director, Community Improvement THROUGH: David Harden, City Manager DATE: November 23, 2011 SUBJECT: AGENDA ITEM 8.J. -REGULAR COMMISSION MEETING OF DECEMBER 6, 2011 CHANGE FUNDING SOURCE FROM DRI TO SHIP/HOUSING REHABILITATION CONTRACT AWARD ITEM BEFORE COMMISSION Approval is requested to adjust funding source for one (1) Housing Rehabilitation grant for the amount of $19,712.10 to be reallocated from Disaster Recovery Initiative (DRI) Program to the State Housing Initiatives Partnership (SHIP) Program for the following project: 303 S.W. 2nd Avenue/David Thyng, LLC./$31,050 = Total Rehab Cost: $ 32,987.10 BACKGROUND City Commission approved the rehabilitation award for Evans (303 SW 2nd Avenue) on August 3, 2010 for $32,987.10 under the Disaster Recovery Initiative (DRI) Program. However, to assist with SHIP program expenditure deadlines, staff is requesting a funding source adjustment of $19,712.10 from the DRI program to the SHIP program. FUNDING SOURCE State Housing Initiatives Partnership (SHIP) 118-1924-554-49.19 $19,712.10 Disaster Recovery Initiative (DRI) 118-1960-554-49.19 $13,275.00 RECOMMENDATION Staff recommends approval to adjust funding source for one (1) Housing Rehabilitation grant for the amount of $19,712.10 to be reallocated from Disaster Recovery Initiative (DRI) Program to the State Housing Initiatives Partnership (SHIP) Program. BID #: 09-2010 NS APPLICANT: PROJECT ADDRESS: DATE OF BID LETTERS: October 16, 2009 DATE OF BID OPENING: November 10, 2009 GENERAL CONTRACTORS BID AMOUNT BID BOND ABC General Services, Inc Action Home Remodeling All Phase Contracting, Inc. 3 4,650.00 yes Brian E. Rega, Inc. Brigcon Construction Services Built Solid Construction, LLC 3 0,885.00 yes Citywide Construction Services, Inc. 3 2,405.04 yes CJ Contracting, LLC 2 8,583.00 yes Cordoba Construction Co. 3 1,230.00 yes Dakota Construction, Inc. David Thyng LLC. 3 0,050.00 yes Darcy Gionfriddo, Inc. DECON Environmental & Engineering, Inc. 5 2,994.00 yes East Coast Restoration Gadsden Property Investment, Inc Grace Construction, Inc. Haywood Construction Hogan Bros. Construction International IQ Constructions, Inc. 3 3,775.00 yes Jemstone Construction Group, Inc. 3 1,786.00 yes Joines Construction & Development, LLC L.A.D. Construction, LLC. Lelack Construction 3 8,325.00 yes Lelond Contracting NYC Builders, Inc. Precision Construction Group, Inc. Ray Graeve & Sons Construction, LLC 3 3,020.00 yes South Florida Construction Services, Inc. 3 1,235.00 yes SRJ Construction Corp. 4 2,500.00 no Starmark Properties In-House Estimate $ 34,964.50 BID/CONTRACT AMOUNT : $ 30,050.00 Contractor Awarded To David Thyng LLC. Rehabilitation Cost $ 30,050.00 5% Contingency or $1,000, whichever is less 1,000.00 31,050.00 Lead Inspection 300.00 Lead Treatment Not applicable -Termite Inspection -Termite Treatment 1,547.90 Recording Fees (Paid by City/CDBG) 89.20 Total Project Cost $ 32,987.10 Funding Source: State Housing Initiatives Partenership (SHIP) Account # 118-1924-554-49.19 19,712.10 Disaster Recovery Initiatives Partnership (DRI) 118-1960-554-49.19 13,275.00 COMMENTS: Funding source adjustment to program CITY OF DELRAY BEACH NEIGHBORHOOD SERVICES DIVISION HOUSING REHABILITATION PROGRAM BID INFORMATION SHEET Genella Evans 303 SW 2nd Avenue Neighborhood Services Division Bid Estimate Summary Bid Number: 09-2010 NS OWNER: Genella Evans ADDRESS: 303 SW 2nd Avenue BID ADVERTISEMENT DATE: October 16, 2009 BID OPENING DATE: November 10, 2009 In-House ABC General Services, Inc Action Home Remodeling API Construction All Phase Contracting Brian E. Rega, Inc. Brigcon Construction Built Solid Construction, Citywide Construction CJ Contracting, Cordoba Construction Dakota Construction, Darcy Gionfriddo David Thyng LLC. Decon Enviormental East Coast Restoration Gadsden Property Grace Construction, Haywood Construction Hogan Bros Const IQ Constructions, Inc. Jemstone Construction Joines Construction L.A.D. Construction, Lelack Construction Lelonde Contracting Maralago Construction Morgan Contracting NYC Builders, Inc. Precision Construction Ray Graeve & Sons South Florida Construction SRJ Construction Starmark Properties 1 Install New Roof $ 6,741.00 $ 7,350.00 $ 6,175.00 $ 6,520.00 $ 7 ,000.00 $ 6,450.00 $ 7,875.00 $ 14,441.00 $ 8 ,450.00 $ 7 ,635.00 $ 7,000.00 $ 5 ,500.00 $ 8,480.00 $ 9 ,200.00 2 Soffit and Fascia $ 355.75 $ 125.00 $ 325.00 $ 350.00 $ 3 00.00 $ 180.00 $ 125.00 $ 201.00 $ 2 00.00 $ 3 00.00 $ 1 00.00 $ 3 75.00 $ 250.00 $ 4 50.00 3 Hurricane Shutters $ 4,408.00 $ 6,375.00 $ 2,675.00 $ 3,045.00 $ 3 ,500.00 $ 3,900.00 $ 2,300.00 $ 4,020.00 $ 3 ,200.00 $ 4 ,176.00 $ 5,000.00 $ 5 ,100.00 $ 3,100.00 $ 5 ,600.00 4 Install Exterior Door $ 1,450.00 $ 1,000.00 $ 1,350.00 $ 850.00 $ 1,200.00 $ 1,180.00 $ 700.00 $ 1,876.00 $ 1 ,400.00 $ 6 00.00 $ 1,250.00 $ 1 ,000.00 $ 1,040.00 $ 1 ,700.00 5 Paint Ext House $ 2,491.50 $ 2,475.00 $ 2,650.00 $ 2,795.00 $ 1 ,720.00 $ 1,850.00 $ 1,750.00 $ 2,097.00 $ 2 ,000.00 $ 1 ,800.00 $ 1,600.00 $ 1 ,900.00 $ 2,160.00 $ 2 ,600.00 6 Repair all Windows $ 910.00 $ 1,300.00 $ 1,800.00 $ 225.00 $ 4 50.00 $ 900.00 $ 300.00 $ 1,394.00 $ 8 00.00 $ 7 00.00 $ 1,100.00 $ 4 25.00 $ 500.00 $ 6 50.00 7 Repair Patio Door $ 450.00 $ 150.00 $ 325.00 $ 215.00 $ 2 00.00 $ 120.00 $ 200.00 $ 335.00 $ 2 00.00 $ 2 00.00 $ 3 00.00 $ 1 25.00 $ 180.00 $ 1 50.00 8 Extend A/C System Drain Line $ 50.00 $ 125.00 $ 225.00 $ 85.00 $ 2 50.00 $ 80.00 $ 50.00 $ 27.00 $ 1 50.00 $ 2 00.00 $ 2 50.00 $ 5 0.00 $ 100.00 $ 1 00.00 9 Replace Sewer Line $ 2,470.00 $ 2,600.00 $ 850.00 $ 2,100.00 $ 1 ,000.00 $ 700.00 $ 3,500.00 $ 3,082.00 $ 1 ,500.00 $ 2 ,200.00 $ 7,000.00 $ 1 ,700.00 $ 9 50.00 $ 2,950.00 10 Install Base Trim $ 131.25 $ 300.00 $ 150.00 $ 325.00 $ 2 97.00 $ 180.00 $ 375.00 $ 2,442.00 $ 2 25.00 $ 4 00.00 $ 3 00.00 $ 1 50.00 $ 300.00 $ 3 00.00 11 Install Cabinets and Counter Top $ 4,350.00 $ 3,750.00 $ 3,500.00 $ 4,300.00 $ 2 ,300.00 $ 4,850.00 $ 3,500.00 $ 5,494.00 $ 4 ,000.00 $ 2 ,700.00 $ 4,860.00 $ 4 ,775.00 $ 4,600.00 $ 3 ,900.00 12 Install Interior Door $ 440.00 $ 400.00 $ 250.00 $ 450.00 $ 3 65.00 $ 580.00 $ 300.00 $ 570.00 $ 6 00.00 $ 4 00.00 $ 6 00.00 $ 3 00.00 $ 520.00 $ 8 00.00 13 Install Medicine Cabinet $ 440.00 $ 400.00 $ 250.00 $ 315.00 $ 2 25.00 $ 180.00 $ 70.00 $ 168.00 $ 3 00.00 $ 1 00.00 $ 2 00.00 $ 1 25.00 $ 8 0.00 $ 1 75.00 14 Install Vinyl Tile $ 213.75 $ 225.00 $ 365.00 $ 675.00 $ 1 00.00 $ 280.00 $ 300.00 $ 268.00 $ 3 50.00 $ 3 00.00 $ 4 00.00 $ 4 75.00 $ 310.00 $ 3 75.00 15 Paint Interior of House $ 2,415.00 $ 2,520.00 $ 2,100.00 $ 2,470.00 $ 2 ,100.00 $ 2,800.00 $ 2,100.00 $ 3,350.00 $ 3 ,000.00 $ 2 ,000.00 $ 1,500.00 $ 2 ,200.00 $ 1,780.00 $ 2 ,800.00 16 Repair Drywall $ 431.25 $ 375.00 $ 465.00 $ 400.00 $ 2 50.00 $ 320.00 $ 150.00 $ 402.00 $ 2 00.00 $ 1,000.00 $ 4 50.00 $ 2 75.00 $ 300.00 $ 3 00.00 17 Install Kitchen Sink $ 375.00 $ 375.00 $ 365.00 $ 425.00 $ 3 50.00 $ 400.00 $ 325.00 $ 670.00 $ 4 00.00 $ 2 00.00 $ 3 75.00 $ 3 75.00 $ 335.00 $ 5 00.00 18 Install Tub/shower with Grab Bars $ 1,800.00 $ 1,100.00 $ 2,400.00 $ 2,185.00 $ 1 ,900.00 $ 1,950.00 $ 1,950.00 $ 4,288.00 $ 2 ,100.00 $ 2 ,200.00 $ 1,500.00 $ 2 ,200.00 $ 1,600.00 $ 3 ,700.00 19 Install Vanity w/Sink $ 1,450.00 $ 325.00 $ 575.00 $ 760.00 $ 1,150.00 $ 1,100.00 $ 750.00 $ 402.00 $ 6 00.00 $ 6 00.00 $ 1,250.00 $ 1 ,000.00 $ 1,200.00 $ 1 ,200.00 20 Install Water Heater $ 815.00 $ 530.00 $ 565.00 $ 700.00 $ 6 95.00 $ 580.00 $ 800.00 $ 1,005.00 $ 8 00.00 $ 6 00.00 $ 6 00.00 $ 6 50.00 $ 525.00 $ 8 50.00 21 New Tub/Shower Diverter $ 215.00 $ 800.00 $ 365.00 $ 225.00 $ 3 00.00 $ 320.00 $ 1,000.00 $ 402.00 $ 5 00.00 $ 3 75.00 $ 3 00.00 $ 7 50.00 $ 345.00 $ 7 50.00 22 Repair Toilet $ 115.00 $ 300.00 $ 475.00 $ 485.00 $ 8 99.00 $ 240.00 $ 180.00 $ 160.00 $ 1 00.00 $ 2 00.00 $ 1 00.00 $ 2 75.00 $ 380.00 $ 2 50.00 23 Install Exhaust Fan $ 322.00 $ 500.00 $ 595.00 $ 215.00 $ 3 50.00 $ 360.00 $ 200.00 $ 536.00 $ 6 00.00 $ 3 00.00 $ 3 20.00 $ 3 25.00 $ 280.00 $ 4 50.00 24 Install Exterior Light Fixture $ 345.00 $ 225.00 $ 300.00 $ 450.00 $ 1 50.00 $ 330.00 $ 350.00 $ 402.00 $ 3 00.00 $ 3 00.00 $ 1 20.00 $ 2 95.00 $ 300.00 $ 7 50.00 25 Repair Electrical Service $ 1,300.00 $ 650.00 $ 990.00 $ 1,205.00 $ 6 32.00 $ 1,000.00 $ 500.00 $ 3,354.00 $ 1 ,200.00 $ 1 ,700.00 $ 1,350.00 $ 1 ,950.00 $ 1,100.00 $ 1 ,300.00 26 Smoke Detectors $ 480.00 $ 375.00 $ 800.00 $ 635.04 $ 9 00.00 $ 400.00 $ 400.00 $ 1,608.00 $ 6 00.00 $ 6 00.00 $ 5 00.00 $ 7 25.00 $ 700.00 $ 7 00.00 TOTAL $ 34,964.50 $ -$ -$ -$ 3 4,650.00 $ -$ -$ 30,885.00 $ 32,405.04 $ 2 8,583.00 $ 31,230.00 $ -$ -$ 30,050.00 $ 52,994.00 $ -$ -$ -$ -$ -$ 33,775.00 $ 3 1,786.00 $ -$ -$ 38,325.00 $ -$ -$ -$ -$ -$ 33,020.00 $ 31,415.00 $ 4 2,500.00 $ - MEMORANDUM TO: Mayor and City Commissioners FROM: Begoña Krane, Engineer Richard C. Hasko, P.E., Environmental Services Director THROUGH: David T. Harden, City Manager DATE: November 29, 2011 SUBJECT: AGENDA ITEM 8.K. -REGULAR COMMISSION MEETING OF DECEMBER 6, 2011 AMENDMENT NO. 1 TO THE INTERLOCAL AGREEMENT FOR FUNDING OF TRANSIT INFRASTRUCTURE/PBC ITEM BEFORE COMMISSION Staff requests Commission approval/authorization for the Mayor to execute Amendment No. 1 to the Interlocal Agreement between Palm Beach County and the City of Delray Beach for Funding of Transit Infrastructure for purchase and installation of bus shelters (project # 2009-055). BACKGROUND The City of Delray Beach was awarded funding through an ARRA grant received by Palm Tran, and on February 1, 2011 Commission approved a contract award to Brang Construction Incorporated to install 23 bus shelters throughout the City. Palm Tran has requested that an additional shelter be installed at the northeast corner of the SW 10th Street and Congress Avenue intersection (shown as shelter #793 on Exhibit A to the Amendment) at an additional cost of $14,932. Amendment No. 1 to the agreement increases the grant amount to $373,750 to provide funding for the requested shelter. The attached letter from Mr. Charles D. Cohen, Palm Tran’s Executive Director, authorizes extension of the project completion date by six (6) months to May 18, 2012. RECOMMENDATION Staff recommends approval of Amendment No. 1 to the Agreement between Palm Beach County and the City of Delray Beach adding one additional bus shelter. 1 1 AMENDMENT No. 1 TO 2 INTERLOCAL (GRANT) AGREEMENT FOR 3 FUNDING OF TRANSIT INFRASTRUCTURE 4 BETWEEN 5 PALM BEACH COUNTY 6 AND 7 THE CITY OF DELRAY BEACH 8 (R2010-0798) 9 10 11 12 This Amendment No. 1 to the Interlocal (Grant) Agreement dated May 18, 2010, by and 13 between the City of Delray Beach, a Florida municipal corporation, and Palm Beach County , a 14 political subdivision of the State of Florida, is made and entered into this _______day of 15 ________, 2011. 16 17 W I T N E S S E T H : 18 19 Whereas, the parties have entered into the above-referenced agreement for the 20 purchase, construction, installation and maintenance of public transit bus shelters at the site(s) 21 identified in Exhibit “A” of the agreement (referred to herein as “Agreement”); and 22 23 Whereas, the parties have determined that it is necessary to revise the shelter locations 24 identified in Exhibit “A” to said Agreement. 25 26 Now, therefore, the parties agree to amend the Agreement as follows: 27 28 1. Exhibit “A” of the Agreement is hereby deleted in its entirety and replaced with the 29 revised Exhibit “A” dated May 27, 2011, which is attached hereto and made a part 30 hereof. 31 32 2. The parties’ Contract Representatives may add additional shelter sites to those set 33 forth in the revised Exhibit “A” and modify other information pertaining to the shelter 34 sites contained on Exhibit “A”, as agreed to by the Contract Representatives; 35 provided, that the modifications do not increase the total obligation of the County 36 beyond the not to exceed grant amount of $373,750.00 or decrease the total number 37 of sites where shelters will be located to less than twenty-four (24), and that the 38 modifications are otherwise consistent with and permissible under the terms and 39 conditions of the Agreement. 40 41 3. Except as expressly modified above, all other terms and conditions of the Agreement 42 are hereby confirmed and shall remain in full force and effect. The modifications to 43 the Agreement described herein shall take effect as of May 27, 2011. 44 45 46 (Remainder of Page Intentionally Left Blank) 47 48 49 50 51 52 53 54 2 1 2 IN WITNESS WHERE OF, the parties have executed this Interlocal (Grant) Agreement 3 Amendment No. 1 and it is effective on the date first above written. 4 5 Palm Beach County, Florida, by its City of Delray Beach, Florida 6 Board of County Commissioners 7 8 9 10 By:_________________________________ By:_________________________________ 11 Chair Mayor 12 13 14 15 Attest: Attest: 16 17 Sharon R. Block, Clerk & Comptroller 18 19 20 By: By:__________________________________ 21 Deputy Clerk Municipal Clerk 22 23 24 25 26 27 Approved as to Terms and Conditions 28 29 30 31 By:_______________________________ 32 Chuck Cohen, Executive Director 33 Palm Tran 34 35 36 Approved as to Form Approved as to Form 37 and Legal Sufficiency and Legal Sufficiency 38 39 40 41 ___________________________________ ___________________________________ 42 County Attorney City Attorney 43 44 45 46 47 48 49 50 ADelrayBeachARRAAFirstAmend.pt.7-6-2011 51 52 53 54 55 56 57 1 2 Exhibit “A” 3 Dated May 27, 2011 4 to the 5 Interlocal (Grant) Agreement for Funding of Transit Capital Assistance 6 in the City of Delray Beach 7 (R2010-0798) 8 9 10 The following Enhancement of Transit Infrastructure will be constructed within the 11 jurisdictional boundaries of the MUNICIPALITY and be funded by this Interlocal Agreement. 12 13 14 15 16 17 Shelter # Palm Tran Route Bus Stop Address /Intersection Notes Facing DIR 1 Yes 1112 Military Trail @Atlantic Ave. Gramecy Square SW 2 Yes 7429 West Atlantic Ave @Whatley Road Colony Palms SE 3 Yes 287 federal Hwy @Mongrove Park Harbourside Rd NE 4 Yes 7703 Atlantic Ave @Congress Square SW 5 Yes 7618 NE 1st Street @NE 2nd Ave. (PGW) Astor -Pad instslled SW 6 Yes 7352 Old Germantown Rd @San Bernadino Dr. Pad instslled NW 7 Yes 7351 Old Germantown Rd @SW 36Th Ave. Pad instslled NW 8 Yes 7349 Old Germantown Rd @Via Verona Pad instslled NW 9 Yes 7428 SW 22nd Ave. @Germantown SW 10 Yes 7346 SW 22nd Ave. @Germantown Original Discretionary Grant SE 11 Yes 220 Federal Hwy @Delray Plaza FDOT Variance SW 12 Yes 7409 SW 29th St @SW20TH Terr NE 13 Yes 7362 SW 10th Ave In front of Target SW 14 Yes 6427 Linton Blvd@Linton Squares Oaks SE 15 Yes 222 SR-5 Transportation Ln. NW 16 Yes 282 SR-5 Ave G NE 17 Yes 221 SR-5 Fladells Way NW 18 Yes 224 SR-5 Lindell Blvd-Latitude NW 19 Yes 284 SR-5 Delray Plaza SE 20 Yes 219 SR-5 Tropic Blvd SW 21 Yes 283 SR-5 Formerly Ralph Buick NE 22 Yes 7626 2605 WestAtlanticAve@NW24th Ave Atlantic High School SW 23 Yes 7670 2605 WestAtlanticAve@NW24th Ave Atlantic High School NW 24 Yes 793 10th Ave@Congress Ave NE Exhibit “A” Dated May 27, 2011 to the Interlocal (Grant) Agreement for Funding of Transit Capital Assistance in the City of Delray Beach (R2010-0798) ARRA BUS SHELTER LOCATIONS MEMORANDUM TO: Mayor and City Commissioners FROM: Linda Karch, Director of Parks and Recreation THROUGH: David T. Harden, City Manager DATE: November 30, 2011 SUBJECT: AGENDA ITEM 8.L. -REGULAR COMMISSION MEETING OF DECEMBER 6, 2011 CONSENT TO ASSIGNMENT/FAMILY CENTRAL, INC./EARLY LEARNING COALITION OF PBC/SCHOOL READINESS CHILD CARE SERVICE AGREEMENT ITEM BEFORE COMMISSION Request City Commission approval to accept a Consent to Assignment Agreement between Family Central, Inc., and the Early Learning Coalition of Palm Beach County and the City of Delray Beach for Pompey Park and the Delray Beach Community Center/School Readiness Child Care Service Agreements. BACKGROUND Currently, there is an agreement between the City of Delray Beach and Family Central, Inc., to subsidize child care funding for afterschool sites located at Pompey Park and Delray Beach Community Center. Family Central, Inc. wishes to re-assign the School Readiness Agreements to the Early Learning Coalition of Palm Beach County. Family Central will assign all its rights, title and interest to the Early Learning Coalition with the effective date December 30, 2011. RECOMMENDATION Parks and Recreation Department recommends City Commission approval. MEMORANDUM TO: Mayor and City Commissioners FROM: Linda Karch, Director of Parks and Recreation THROUGH: David T. Harden, City Manager DATE: November 30, 2011 SUBJECT: AGENDA ITEM 8.M. -REGULAR COMMISSION MEETING OF DECEMBER 6, 2011 AMENDMENT NO. 2/SCHOOL READINESS CHILD CARE SERVICE AGREEMENT ITEM BEFORE COMMISSION Request City Commission approval of Amendment # 2 to the School Readiness Child Care Service Agreement between Family Central, Inc., the Early Learning Coalition and the City of Delray Beach to amend the term of the agreement and the termination provisions for the afterschool programs located at Pompey Park and Delray Beach Community Center. BACKGROUND This Amendment to the Service Agreement, which has been reassigned from Family Central to the Early Learning Coalition, for the School Readiness Child Care Services located at Pompey Park and Delray Beach Community Center will extend the date of the existing contract, currently set to expire on December 31, 2011, until June 30, 2012. In addition, Early Learning Coalition wishes to amend the terms of the Agreement to revise the Termination Provisions pursusant to Section 4 of the Agreement. REVIEW BY OTHERS The Amendment has been reviewed and approved by the City Attorney's Office. RECOMMENDATION Parks and Recreation Department recommends City Commission approval. MEMORANDUM TO: Mayor and City Commissioners FROM: Linda Karch, Director of Parks and Recreation THROUGH: David T. Harden, City Manager DATE: November 30, 2011 SUBJECT: AGENDA ITEM 8.N. -REGULAR COMMISSION MEETING OF DECEMBER 6, 2011 CONSENT TO ASSIGNMENT AGREEMENT/FAMILY CENTRAL, INC./EARLY LEARNING COALITION OF PBC/AFTERSCHOOL PROGRAM SERVICE AGREEMENT ITEM BEFORE COMMISSION Request City Commission approval to accept a Consent to Assignment Agreement between Family Central, Inc., the Early Learning Coalition of Palm Beach County and the City of Delray Beach for the Pompey Park and the Delray Beach Community Center/Afterschool Program Service Agreements to Accept Scholarships for School Age Children. BACKGROUND Currently, there is an agreement between the City of Delray Beach and Family Central, Inc., to accept scholarships for children at the afterschool sites located at Pompey Park and Delray Beach Community Center. Family Central, Inc. wishes to assign the Afterschool Program Service Agreements to the Early Learning Coalition of Palm Beach County. Family Central will assign all its rights, title and interest to the Early Learning Coalition with the effective date December 30, 2011. RECOMMENDATION Parks and Recreation Department recommends City Commission approval. MEMORANDUM TO: Mayor and City Commissioners FROM: Linda Karch, Director of Parks and Recreation THROUGH: David T. Harden, City Manager DATE: November 30, 2011 SUBJECT: AGENDA ITEM 8.O. -REGULAR COMMISSION MEETING OF DECEMBER 6, 2011 AMENDMENT NO. 3/AFTERSCHOOL PROGRAM SERVICE AGREEMENT TO ACCEPT SCHOLARSHIPS FOR SCHOOL AGE CHILDREN/FAMILY CENTRAL, INC. ITEM BEFORE COMMISSION Request City Commission approval of Amendment # 3 to the Afterschool Program Service Agreement to Accept Scholarships for School Age Children between Family Central, Inc., the Early Learning Coalition and the City of Delray Beach to amend the term of the agreement and the termination provisions for the afterschool programs located at Pompey Park and Delray Beach Community Center. BACKGROUND This service agreement which has been reassigned from Family Central to the Early Learning Coalition for the afterschool program service agreements located at Pompey Park and Delray Beach Community Center is to extend the date of the existing contract, currently set to expire on December 31, 2011, until June 30, 2012. In addition, Early Learning Coalition wishes to amend the terms of the Agreement to revise the Termination Provisions pursuant to Section 4 of the Agreement. RECOMMENDATION Parks and Recreation Department recommends City Commission approval. MEMORANDUM TO: Mayor and City Commissioners FROM: R. Brian Shutt, City Attorney DATE: November 29, 2011 SUBJECT: AGENDA ITEM 8.P. -REGULAR COMMISSION MEETING OF DECEMBER 6, 2011 TERMINATION OF DEDICATION OF PARKING AGREEMENT/PINEAPPLE GROVE PROPERTIES, LTD. ITEM BEFORE COMMISSION Approval of the termination of a Dedication of Parking Agreement for12 spaces adjacent to N.E. 3rd Avenue and behind the Astor development, located on privately owned property. BACKGROUND The property owner of the Astor development (NE corner of Pineapple Grove Way and NE 1st Street) has requested that the City release the dedication of 12 parking spaces located on property owned by the property owner but dedicated for public use. When the Astor was constructed the property owner agreed to construct the 12 parking spaces, between the FEC railroad tracks and N.E. 3rd Avenue, and make the spaces available to the public. These spaces are not counted toward the parking calculations required for the Astor. Due to a new business relocating to the Astor development, the property owner has determined that it will need the 12 spaces for its own use. RECOMMENDATION Recommend approval of termination of the Dedication of Parking Agreement. MEMORANDUM TO: Mayor and City Commissioners FROM: R. Brian Shutt, City Attorney DATE: November 29, 2011 SUBJECT: AGENDA ITEM 8.Q. -REGULAR COMMISSION MEETING OF DECEMBER 6, 2011 SETTLEMENT AGREEMENT/BANK OF AMERICA (BAC) ITEM BEFORE COMMISSION Participation in a settlement Agreement between Bank of America Corporation (BAC) and 28 State Attorneys General to resolve allegations that BAC engaged in violations of state and federal antitrust laws. BACKGROUND The City has been asked to participate in the settlement agreement because of a 10 million dollar revenue bond issued in February 2000 to Bank of America, through a formal RFP process. It has been alleged that certain BAC employees engaged in anticompetitive conduct and/or unfair trade practices in the marketing, sale and placement of municipal bond derivatives. The total settlement fund amount is $62.5 million, the City’s share is $35,517.56. If the City agrees to the settlement amount then we will forego any further legal action against BAC regarding this matter. RECOMMENDATION Approve the participation in the settlement. City of Delray Beach Page 33 of 45 (1 ) An amount of $483,366.69 : For payment of rehabilitation construction costs and related expenses regarded as eligible under this Agreement (including lead-based paint expenditures such as the cost of inspections and risk assessments, abatement, and clearance testing). (2 ) An amount of $5,000 : For temporary relocation costs to temporarily relocate the members of the household where rehabilitation is being performed. These costs shall include the cost of accommodations (hotel/motel) incurred while temporarily housing such household members away from the home being rehabilitated. (3 ) An amount of $50,000 )RUWKHFRVWVRIWKH0XQLFLSDOLW\¶VHPSOR\HHWRSURYLGHWKH services of the Inspector to carry out the tasks described in this Agreement. B. Provide project administration and inspection to the Municipality to ensure compliance with U.S. HUD and the Department of Labor, and applicable State, Federal and County laws and regulations. C. Monitor the Municipality at any time during the term of this Agreement. Visits may be announced or unannounced as determined by HCD and will serve to ensure compliance with State and U.S. Department of HUD regulations, that planned activities are conducted in a timely manner, and to verify the accuracy of reporting to HCD on program activities. D. The County shall perform an environmental review of each project, and review and approve all aspects and expenditures of each project as specified herein. The County shall also perform Davis Bacon Act Labor Standards monitoring and enforcement. Environmental review costs incurred by the County may be charged to the project budget identified above. City of Delray Beach Page 34 of 45 (;+,%,7³%´ AUTHORIZATION TO RELEASE CONFIDENTIAL INFORMATION I, the undersigned, authorize the Federal Emergency Management Agency (FEMA), the State of Florida, and appropriate agencies of the State of Florida responsible for providing disaster assistance to release information relating to my eligibility for monetary or other forms of assistance arising from the major disasters declared: Hurricanes Katrina FEMA-DR -1602-FL (dated August 28, 2005), and/or Wilma FEMA-DR -1609-FL (dated October 24, 2005) to those agencies that provide disaster-related assistance. This authorization permits the release of information that is deemed confidential under Federal and State Privacy Acts. This authorization is given to obtain and/or provide assistance I need as a result of the prior referenced federal disaster(s) to insure that benefits are not duplicated. It includes the sharing of information about P\DSSOLFDWLRQLQ)(0$¶VSRVVHVVLRQRUXQGHU)(0$¶VFRQWURO This authorization includes only information necessary to allow the appropriate agency or organizations to determine if I am eligible for assistance from that agency or organization. This information is not to be used for any other purpose. I also understand and acknowledge that signing this does not guarantee that I will get assistance from Voluntary Agencies and/or appropriate Federal and State agencies. However, without my permission, my information cannot be shared with other agencies or organizations for consideration. I understand that I will still receive all FEMA assistance for which I am eligible. This Authorization is submitted pursuant to 28 U.S.C. § 1746 under penalty of perjury. OPTIONAL - I choose to exclude the following agencies from access to this information: I understand that it is my choice to sign this Release: Name (Printed) Date Signature Pre-Disaster Address: Current Address: Phone or Message #: FEMA Registration #: City of Delray Beach Page 35 of 45 (;+,%,7³&´ CATEGORICAL EXCLUSION SUGGESTED FORMAT SUBJECT TO §58.5 PROJECT NAME AND DESCRIPTION: Include all contemplated actions which are either geographically and/or functionally part of the project. Location: Activities included in project: This project is determined to be Categorically Excluded according to: [Cit e section(s) and activities that are applicable] DIRECTIONS: Once the review process for each compliance factor has been completed, the Statutory Checklist must then be filled out. Specifically, the ER must indicate whether the activity does or does not affect the resources under consideration. Consult the guidance provided in the table below or the web sites. If the project is found to require consultation with an outside agency and affects the re source in question, indicate Status as A on the worksheet and document what sources of information were used (information sources are provided in the guidance). If the activity triggers no formal compliance consult ation procedures with the oversight agency, indicate the Status as B. Any compliance documentation should also be attached to the Checklist and included in the ERR. COMPLIANCE FACTORS: Statutes, Executive Orders, and Regulations listed at 24 CFR §58.5 Status A/B Compliance Documentation Historic Preservation [36 CFR Part 800] Guidance: http://www.hud.gov/offices/cpd/environment/review/historic.cfm Floodplain Management [Executive Order 11988; 24 CFR Part 55] Guidance: http://www.hud.gov/offices/cpd/environment/review/floodplain.cfm Wetland Protection [Executive Order 11990; 3 CFR, §§ 2, 5] Guidance: http://www.hud.gov/offices/cpd/environment/review/floodplain.cfm Coastal Zone Management Act [16 U.S.C. 1451, §§ 307(c), (d)] Guidance: http://www.hud.gov/offices/cpd/environment/review/coastal.cfm Statutes, Executive Orders, and Regulations listed at 24 CFR §58.5 Status A/B Compliance Documentation Sole Source Aquifers [40 CFR Part 149] Guidance: http://www.hud.gov/offices/cpd/environment/review/aquifiers.cfm Endangered Species Act [50 CFR Part 402] Guidance: http://www.hud.gov/offices/cpd/environment/review/endangeredspecies.cfm Wild and Scenic Rivers Act [16 U.S.C. 1271, §§ 7(b), (c)] Guidance: http://www.hud.gov/offices/cpd/environment/review/rivers.cfm City of Delray Beach Page 36 of 45 Clean Air Act [40 CFR Parts 6, 51, 93] Guidance: http://www.hud.gov/offices/cpd/environment/review/cleanair.cfm Farmland Protection Policy Act [7 CFR Part 658] Guidance: http://www.hud.gov/offices/cpd/environment/review/farmlands.cfm Environmental Justice [Executive Order 12898] Guidance: http://www.hud.gov/offices/cpd/environment/review/justice.cfm Noise Abatement and Control [24 CFR Part 51, Subpart B] Guidance: http://www.hud.gov/offices/cpd/environment/review/noise.cfm Statutes, Executive Orders, and Regulations listed at 24 CFR §58.5 Status A/B Compliance Documentation Explosive and Flammable Operations [24 CFR Part 51, Subpart C] Guidance: http://www.hud.gov/offices/cpd/environment/review/explosive.cfm Toxic Chemicals and Radioactive Materials [24CFR Part 58, § 5(i)(2)] Guidance: http://www.hud.gov/offices/cpd/environment/review/hazardous.cfm Airport Clear Zones and Accident Potential Zones [24 CFR Part 51, Subpart D] Guidance: http://www.hud.gov/offices/cpd/environment/review/airport.cfm DETERMINATION: [ ] This project converts to Exempt, per § 58.34(a)(12), because it does not requi re any mitigation for compliance with any listed statutes or authorities, nor requires any formal p ermit or license (Status "A" has been determined in the status column for all authorities). [ ] Funds may be drawn down for this (now) EXEMPT project; OR This project cannot convert to Exempt because one or more statutes/authorities requi re consultation or mitigation. Complete consultation/mitigation requirements, publish NOI/RRO F and obtain Authority to Use Grant Funds (HUD 7015.16) per §§ 58.70 and 58.71 before drawing down funds; OR [ ] The unusual circumstances of this project may result in a significant envi ronmental impact. This project requires preparation of an Environmental Assessment (EA). Prepare t he EA according to 24 CFR Part 58 Subpart E. Subrecipient Name: Prepared by: Name Signature Date City of Delray Beach Page 37 of 45 PALM BEACH COUNTY DETERMINATION OF CATEGORICAL EXCLUSION SUBJECT TO 24 CFR PART 58.5 24 CFR PART 58.35(a) PROGRAM: 2005 DRI Program FISCAL YEAR: _______ APPLICANT/SITE LOCATION (INCLUDING MAP): PCN: I HEREBY CERTIFY THAT THE FOLLOWING ACTIVITY(S) HAVE BEEN REVIEWED AND DETERMINED CATEGORICAL EXCLUDED ACTIVITY PER 24 CFR 58.35 (a) AS FOLLOWS: (1) Acquisition, repair, improvement, reconstruction, or rehabilitation of public facilities and improvement (other than buildings) when the facilities and improvements are in place and will be retained in the same use without change in size or capacity of more than 20% (e.g. replacement of water or sewer lines, reconstruction of curbs and sidewalks, paving of streets). (2) Special projects directed to the removal of material and architectural bar riers that restrict the mobility of and accessibility to elderly and handicapped persons. (3) Rehabilitation of buildings and improvements when the following conditions are met: (i) In the case of a building for residential use (with one to four units), the density is not increased beyond four units, the land use is not changed, and the footprint of the building is not increased in a floodplain or in a wetland; (ii) In the case of multi-family residential buildings: (A) Unit density is not changed more than 20%; (B) The project does not involve changes in land use from residential to non- residential; and (C) Estimated cost of rehabilitation is less than 75% of the total est imated cost of replacement after rehabilitation. (iii) In the case of non-residential structures, including commercial indust rial, and public buildings: (A) Facilities and improvements are in place and will not be changed in size or capacity by more than 20%; and (B) The activity does not involve a change in land use, such as from non-residential to residential, commercial to industrial, of from one industrial use to another. (4) (i) An individual action on up to four dwelling units where there is a maximum of four units on any one site. The units can be four one-unit buildings or one four-unit building or any combination in between; or (ii) An individual action on a project of five or more housing units developed on scattered sites when the sites are more than 2,000 feet apart and there are not more than four housing units on any one site. (iii) Paragraphs (a)(4)(i) and (ii) of this section do not apply to rehabil itation of a building for residential use (with one to four units) (see paragraph (a)(3)(i) of this section). (5) Acquisition (including leasing) or disposition of, or equity loans on a n existing structure, or acquisition (including leasing) of vacant land provided that the structure or land acquired, financed, or disposed of will be retained for the same use. (6) Combination of the above. Subrecipient Name: Prepared by: Name Signature Date City of Delray Beach Page 38 of 45 (;+,%,7³'´ PALM BEACH COUNTY HOUSING & COMMUNITY DEVELOPMENT D RI -3 PROGRAM HOUSING REHABILITATION ACTIVITY MONTHLY PERFORMANCE REPORT Date Submitted: Subrecipient: Project Name: Reporter/Title: Period Covering: Month: _________________ Year: __________________ 1. New applications received during this reporting period: ____________ 2. Files completed/forwarded to HCD this reporting period: ____________ 3. Files approved for contractor procurement: ____________ 4. Rehab contracts executed this reporting period: ____________ 5. Dollar amount of contracts executed: ____________ 6. Rehab projects started this reporting period: ____________ 7. Rehab projects completed this reporting period: ____________ 8. Funds requested from HCD for payment(s): $ ____________ PLEASE LIST THE ADDRESSES WHERE REHABILITATION CONTRACTS HAVE BEEN EXECUTED THIS MONTH: ADDRESSES EXPENDITURES 1. 2. 3. 4. 5. PROJECT ACTIVITIES Describe your accomplishments during this reporting period: ________________________ ________________________________________________________________________ ________________________________________________________________________ ________________________________________________________________________ Describe any problems encountered during this reporting period: _____________________ ________________________________________________________________________ ________________________________________________________________________ ________________________________________________________________________ Other Comments: _________________________________________________________ ________________________________________________________________________ ________________________________________________________________________ I, _____________________________________, do hereby certify that the City of Delray Beach has met all of its Monthly Performance Requirements (Exhibit A, Paragraph V) refer enced in the Agreement during this reporting period. _______________________________________ Name & Title of Certifying Representative Send Monthly Performance Report to: Bud Cheney, Manager of CREIS Department of Housing and Community Development 100 Australian Avenue, Suite 500 West Palm Beach, FL 33406 City of Delray Beach Page 39 of 45 (;+,%,7³(´ PALM BEACH COUNTY HOUSING & COMMUNITY DEVELOPMENT CONTRACTUAL OBLIGATIONS AND MBE REPORT Project Name: City of Delray Beach - Housing Rehabilitation Report Date: Page of Pages Report Period: [ ] October 1, 20 , to March 31, 20 . [ ] April 1, 20 , to September 30, 20 . Prepared By: (1) Contractor/Subcontractor name and address (fill in for each contractor or subcontractor) Include all professional services such as consultants, engineers, architects, etc. that are funded under the agreement for this project. All Contractors and subc ontractors (with contracts over $10,000) that are paid with CDBG funds must be includ ed. Do not list previously reported information. (2) Prime Contractor Employer Identification Number * (3) Subcontractor Employer Identification Number (see below) (4) Amount of Contract or Subcontract (5) Type of Trade Code (1 thru 3) (see below) (6) Contractor or subcontractor Racial/Ethnic Code (1 thru 6) (see below) (7) WBE (yes or no) (8) Section 3 (yes or no) Name: Street: City, State, Zip: Name: Street: City, State, Zip: Name: Street: City, State, Zip: Name: Street: City, State, Zip: Name: Street: City, State, Zip: (3) When subcontractor employer identification is used, information in c olumns 4 WKURXJKPXVWUHIOHFWWKHVXEFRQWUDFWRULQIRUPDWLRQQR WWKHSULPHFRQWUDFWRU¶V information; also include the prime c RQWUDFWRU¶VHPSOR\HULGHQWLILFDWLRQQXPEHU * Employer identification number or social security number (5) Type of Trade Codes: 1 = New Construction (including rehab, water, and sewer 2= Education/Training 3= Other (including supply, professional services and other activities except construction and education/training) (6) Racial/Ethnic Code: 1=White American 4= Hispanic American 2= Black American 5= Asian/Pacific American 3= Native American 6=Hasidic Jews (7) WBE = Women Business Enterprise City of Delray Beach Page 40 of 45 (;+,%,7³)´ PALM BEACH COUNTY HOUSING & COMMUNITY DEVELOPMENT HOUSING BENEFIT REPORT Project Name: City of Delray Beach 2005 DRI Housing Rehabilitation Prepared By: Report Date: Page ____of _____ Pages Name of Owner Name of Occupant Street Address (Street, city, zip) (If replacement, new address) Total Cost of Rehab or Replacement Total DRI Funds Invested Date Completed Rehab (Yes/No) Replacement (Yes/No) No. Of Bedrooms Unit Made Handicapped Accessible (Yes/No) Unit Qualified as ³HQ HUJ\VWDU´ (Yes/No) Unit Brought into Compliance with Lead Safety Requirements (Yes/No) $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ City of Delray Beach Page 41 of 45 (;+,%,7³*´ PALM BEACH COUNTY HOUSING & COMMUNITY DEVELOPMENT BENEFICIARY DATA REPORT Project Name: City of Delray Beach ± 2005 DRI Housing Rehabilitation Prepared By: Report Date: Number Total Beneficiaries: Proposed Total Beneficiaries: Actual LMI Beneficiaries: Proposed (80% of AMI or Less) LMI Beneficiaries: Actual (80% of AMI or Less) VLI Beneficiaries: Proposed (50% of AMI or Less) VLI Beneficiaries: Actual (50% of AMI or Less) Male Female Disabled Female Head of Household Elderly Hispanic Ethnicity No. of Units Owner Occupied No. of Units Renter Occupied White African American Asian American Indian or Alaskan Native Native Hawaiian Pacific Islander American Indian or Alaskan Native and White Asian and White African American and White American Indian/Alaskan Native and African American Other Multi-Racial Total: (Same as Total Beneficiaries: Actual shown above) City of Delray Beach Page 42 of 45 (;+,%,7³+´ Unspecified Site Strategy for Housing Related Activities as identified in 24 CFR Part 58.35(a) Updated March 2010 Project Identification: _________________________________________ Contract Number Preparer: _________________________________________ Typed Name and Title Responsible Entity: _________________________________________ Name of Local Government Month/Year: _________________________________________ City of Delray Beach Page 43 of 45 CERTIFICATION OF CATEGORICAL EXCLUSION (subject to 58.5) Per 24 CFR 58.35 (a) Contract Number:____________________________ Fiscal Year: ______________________________ APPLICANT/SITE LOCATION (INCLUDING MAP): ___________________________________________ PCN: ______________________________________ I hereby certify that the following activities comprising the Housing Grant have been reviewed and determined Categorical Excluded Activity per 24 CFR 58.35 (a) as follows: ___ (1) Acquisition, repair, improvement, reconstruction, or rehabilitation of public facilities and improvements (other than buildings) when the facilities and improvements are in place and will be retained in the same use without change in size or capacity of more than 20% (e.g. replacement of water or sewer lines, reconstruction of curbs and sidewalks, repaving of streets). ___ (2) Special projects directed to the removal of material and architectural barriers that restrict the mobility of and accessibility to elderly and handicapped persons. ___ (3) Rehabilitation of buildings and improvements when the following conditions are met: (i) In the case of a building for residential use (with one to four units) the density is not increased beyond four units, the land use is not changed, and the footprint of the building is not increased in a floodplain or in a wetland; (ii) In the case of multifamily residential buildings: (A) Unit density is not changed more than 20%; (B) The project does not involve changes in land use from residential to non-residential: and (C) The estimated cost of rehabilitation is less than 75% of the total estimated cost of replacement after rehabilitation. (iii) In the case of non-residential structures, including commercial, industrial, and public buildings: (A) The facilities and improvements are in place and will not be changed in size of capacity by more than 20%: and (B) The activity does not involve a change in land use, such as from non-residential to residential, commercial to industrial, of from one industrial use to another. ___ (4) An individual action on a one-to -four family dwelling or an individual action on a project of five or more units developed on scattered sites when the sites are more than 2,000 feet apart and there are not more than four units on any one site. ___ (5) Acquisition or disposition of an existing structure or acquisition of vacant land provided that the structure or land acquired or disposed of will be retained on any one site. ___ (6) Combination of the above activities. Subrecipient Name: _________________________________________________________ Prepared by: Signature: ____________________________________________ Date: ________________ City of Delray Beach Page 44 of 45 Printed Name: _________________________________________ Title: _________________ STATUTORY WORKSHEET 24 CFR §58.5 STATUTES, EXECUTIVE ORDERS & REGULATIONS Use this worksheet only for projects that are Categorically Excluded per 24 CFR § 58.35(a). NOTE : Compliance with the laws and statutes listed at 24 CFR §58.6 must also be documented. PROJECT NAME and DESCRIPTION - Include all contemplated actions that logically are either geographically or functionally part of the project: _________________________________________________ This proposal is determined to be __________________ according to: (Cite Section(s)) __________________ DIRECTIONS - :ULWH³A ´LQWKH6WDWXV&ROXPQZKHQWKHSURSRVDOE\LWVVFRSHDQGQDWXUHGRHV QRWDIIHFWWKHUHVRXUFHVXQGHUFRQVLGHUDWLRQ RUZULWH³B ´LIWKHSURMHFWWULJJHUVIRUPDOFRPSOLDQFH consultation procedures with the oversight agency, or requires mitigation (see Statutory Worksheet Instructions). Compliance documentation must contain verifiable source documents and relevant base data. Compliance Factors : HISTORIC PRESERVATION 36 CFR PART 800 FLOODPLAIN MANAGEMENT 24 CFR §55 & EXECUTIVE ORDER 11988 WETLAND PROTECTION EXECUTIVE ORDER 11990 COASTAL ZONE MANAGEMENT A CT SECTIONS 307(c) & (d) SOLE SOURCE AQUIFERS 40 CFR 149 ENDANGERED SPECIES ACT 50 CFR 402 WILD AND SCENIC RIVERS ACT SECTIONS 7(b) & (c) CLEAN AIR ACT SECTIONS 176(c)(d) & 40 CFR 6, 51, 93 FARMLAND PROTECTION POLICY ACT 7 CFR 658 ENVIRONMENTAL JUSTICE EXECUTIVE ORDER 12898 NOISE ABATEMENT & CONTROL 24 CFR §51B EXPLOSIVE & FLAMMABLE OPERATIONS 24 CFR §51C HAZARDOUS, TOXIC OR RADIOACTIVE MATERIALS & SUBSTANCES 24 CFR 58.5(i)(2) AIRPORT CLEAR ZONES & ACCIDENT POTENTIAL ZONES 24 CFR 51D STATUTES, EXECUTIVE ORDERS AND REGULATIONS LISTED AT 24 CFR §58.5 COMPLIANCE DETERMINATION A/B City of Delray Beach Page 45 of 45 OTHER FACTORS A/B SOURCE OR DOCUMENTATION FLOOD DISASTER PROTECTION ACT [FLOOD INSURANCE - §58.6(A)] COASTAL BARRIER RESOURCES ACT [COASTAL BARRIER IMPROVEMENT ACT - §58.6(C)] AIRPORT RUNWAY CLEAR ZONE OR CLEAR ZONE DISCLOSURE [§58.6(D)] Determination: This project converts to Exempt, per Section 58.34(a)(12), because it does not require any mitigation for compliance with any listed statutes or authorities, nor requires any formal permit or license (Status "A" has been determined in the status column for all authorities); Funds may be committed and drawn down for this (now) EXEMPT project; or This project cannot convert to Exempt status because one or more statutes or authorities require formal consultation or mitigation. Complete consultation / mitigation protocol requirements, publish NOI/RROF and obtain Authority to Use Grant Funds (HUD 7015.16) per Section 58.70 and 58.71 before committing or drawing down funds; or Th e unusual circumstances of this project may/will result in a significant environmental impact. This project requires preparation of an Environmental Assessment (EA). Prepare the EA according to 24 CFR Part 58 Subpart E. ____________________________________________________________ PREPARER SIGNATURE ____________________________________________________________ PREPARER NAME & TITLE ____________________________________________________________ DATE ____________________________________________________________ RESPONSIBLE ENTITY / MUNICIPAL OFFICIAL SIGNATURE ____________________________________________________________ NAME & TITLE: ____________________________________________________________ DATE MEMORANDUM TO:Mayor and City Commissioners FROM:Lula Butler, Director, Community Improvement THROUGH:David Harden, City Manager DATE:November 29, 2011 SUBJECT:AGENDA ITEM 8.H. - REGULAR COMMISSION MEETING OF DECEMBER 6, 2011 WORKFORCE HOUSING COVENANT AGREEMENT/BAMFOUR, LLC/DKB REALTY INVESTMENT, INC./MATHIAS DEVELOPMENT, INC. ITEM BEFORE COMMISSION City Commission consideration and approval of the W orkforce Housing Covenant between the City of Delray Beach and Bamfour, LLC, DKB Realty Investmen t, Inc. and Mathias Development, Inc., pursuant to the requirements under Section 4.7 of t he Land Development Regulations (LDR's). BACKGROUND The Developer of the Midtown project has requested the City enter into the attached Workforce Housing Covenant, pursuant to Section 4.7.4 of the LDR's that grants to the Developer certain density bonus units beyond the base number allowed per the existing Zoning Ordinance after performance standards have been met. In addition, LDR Section 4.4(G)(5) requires a minimum of 20% workforce units, consisting of moderate-income households at rental rates which do not exce ed a certain percentage of the Department of Housing and Urban D evelopment-determined fair market rent for the area. The agreement further provides for rules governing the rental and future sale of Workforce units. Additional restrictions, pursuant to the Workforce Ordinance, include monthly reports from the developer documenting compliance with the Covenant, duration of the agreement and the conditions and rights of the City of review and to enforce com pliance with all provisions of the covenant. RECOMMENDATION Staff is recommending City Commission approval of t he Workforce Housing Covenant , as proposed between the City and Bamfour, LLC, DKB Realty Inves tment, Inc., and Mathias Development, Inc. 1 Prepared by and Return to: Brian Shutt, Esq., City Attorney City of Delray Beach, Florida 200 NW 1 st Avenue Delray Beach, FL 33444 WORKFORCE HOUSING COVENANT THIS WORKFORCE HOUSING COVENANT (the “Covenant”) is ente red into as of the ____ day of _______, 2011, by the CITY OF DELRAY BEACH, a Fl orida Municipal Corporation, (referred to herein as “City”), and BA MFOUR, LLC, a Florida limited liability company, DKB REALTY INVESTMENT, INC., a Florida Corporation, and MATHIAS DEVELOPMENT, INC., a Florida Corporation (collectiv ely referred to herein as “Developer”, which term shall include any successor t o Developer as owner of the entire Development). RECITALS A. City has implemented affordable housing requirements as se t forth in Article 4.7 of the Delray Beach Land Development Regulations (“Regulations”) by establishing a Family/Work Force Housing Program (hereinafte r referred to as the “Affordable Housing Program”) for the City of Delray Beac h. Article 4.7 of the Regulations grants to Developer certain density bonus Units (additi onal market rate Units) beyond the base number allowed per existing City Zoning Ordinance after performance standards have been met. B. Developer desires to be part of the Affordable Housing Pr ogram with respect to that certain real property which is owned by the Developer and is located in the SAD Zoning District in Delray Beach, Florida, and more partic ularly described in Exhibit “A” which is attached hereto and incorporated by reference herein (“Real Property”). Developer has agreed to provide affordable rental housing Units within the residential development project (“Development”) to be constructed on t he Real Property. C. Pursuant to the City’s Affordable Housing Program and via Or dinance 46- 07, residential development in the SAD Zoning District must incl ude thirty-two (32) Workforce Units consisting of Moderate Income Households at rental r ates which do not exceed a certain percentage of the HUD determined fair market rent fo r the area. D. Pursuant to Article 4.7 of the Regulations, the Developer has ag reed to enter into this Covenant to evidence of record the affordable housing covenant agains t the Real Property. 2 E. This Covenant shall apply and be enforceable against Develop er and all current and future Owners, as applicable, during the term of this Covenant and shall restrict the sale, resale, rental and use of the applicable housing as p rovided herein. NOW, THEREFORE, City and Developer hereby agree as follows: I. DEFINITIONS The following terms not otherwise defined herein shall have the mea nings set forth below for purposes of this Covenant, and if a term is defined i n the Regulations, the Regulations shall control: 1.1. Adjusted Median Income (A.M.I.) – The Palm Beach County median income, based on a family of four, as published by Florida Housing Finance Agency. 1.2. Affordability Controls – Restrictions placed on dwelling Units by which the rent of such Units and/or the income of the purchaser or lessee will be restricted in order to ensure that the Units remain affordable to moderate income households. 1.3. City – The City of Delray Beach, Florida. 1.4. CRA – The Delray Beach Community Redevelopment Agency 1.5. Development – The housing development at the Real Property for which approvals of density bonus Units have been granted by the City to the Develo per. 1.6. Eligible Occupant – A household who is income eligible to rent a Workforce Housing Unit. Priority will be given to persons who ha ve lived or worked within the City limits of Delray Beach continually for one ye ar immediately prior to the date of application for a Workforce Housing Unit in the Development and who are income eligible. 1.7. Exempt Transfer – A Transfer of all of the Development, as opposed to a Transfer of one or more individual Units that are separate f rom a Transfer of the entire Development. 1.8. First Time Home Buyer – A person who has not held ownership in a residence within the past three years. 1.9. HUD – The United States Department of Housing and Urban Development. 1.10. Household – A single person living alone, or two or more persons sharing residency, with a combined income available to cover household expenses. 3 1.11. Moderate Income Household – A household with a gross, combined income between 81% and 120% of the Palm Beach County Adjusted Median I ncome (as defined by the Florida Housing Finance Corporation) as published more specifically in the “Income Limits Florida Housing Finance Corporation CWHIP Hom eownerhip Program” table for West Palm Beach – Boca Raton HMFA (Palm Beach) area. 1.12. Purchase Price or Sales Price – All consideration paid for the Transfer of a Unit either at or outside of closing, but shall not include any proration amounts, taxes, costs and expenses of obtaining financing, the fair market value of furnishings or personal property, lender fees, title insurance fees, closing costs, inspection fees, or other normal and customary costs related to the purchase of propert y but not paid directly to the seller. 1.13. Transfer – Any sale, assignment or transfer, voluntary or involuntary, or by operation of law (whether by deed, contract of sale, gift, devise, bequest, trustee’s sale, deed in lieu of foreclosure, or otherwise) of any interest i n a Unit, including but not limited to, a fee simple interest, a joint tenancy interest, a tenancy in common, a life estate, a leasehold interest (except for an Affordable Housing Unit lease as permitted by this Covenant), or any interest evidenced by a land contract by which possession of such Unit is transferred while the existing Unit Owner retains title. 1.14. Unit – A single family, condominium, townhouse, or apartment residence located in the Development. 1.15. Unit Owner – The record title owner at any time of a Unit 1.16. Workforce Housing Unit or Workforce Unit – A dwelling unit for which the rent or mortgage payment (including principal, interest , taxes and Insurance (“P.I.T.I.”)) does not exceed 35% of the gross income of households that cla ssify as moderate income households and meets the other requirements of the Aff ordable Housing Program. II. RENTAL OF UNITS 2.1. The Development shall be subject to this Covenant, and each less ee shall be an Eligible Occupant, except as provided in Section 2.5 below. 2.2. In no event shall any Unit in the Development be used for transient , interval or timeshare rental or ownership. 2.3. At all times, at least thirty-two (32) of all Units in the D evelopment must be Workforce Housing Units that are affordable to Moderate Income Households . 2.3.1. Workforce Housing Units targeted to Moderate Income Households at 81% to the 120% affordability level of the Palm Beach County median income, adjusted for family size, shall not have rental rates tha t exceed 140% rent limit 4 for the area (as defined by the Florida Housing Finance Corporation) as published more specifically in “Rent Limits Florida Housing Finance Corporation State Housing Initiatives Program (SHIP)” table for West Palm Beach – Boc a Raton HMFA (Palm Beach) area. 2.3.2. No Workforce Housing Units shall be offered for rent to the general public until all requirements of this Covenant are met. 2.3.3. No efficiency or studio type Workforce Housing Units are allowed. 2.4. The Developer shall provide Workforce Housing Units that include Uni t types in the same proportion as the market rate housing unit typ es. The following conditions must be met: 2.4.1. The proportion of one (1) bedroom Workforce Units to total Workforce Units may not exceed the proportion of one (1) bedroom ma rket rate Units to total market rate Units. 2.4.2. The proportion of two (2) bedroom Workforce Units to Total Workforce Units may not exceed the proportion of two (2) bedroom m arket rate Units to total market rate Units. 2.4.3. The proportion of three (3) bedroom Workforce Units to total Workforce Units must meet or exceed the proportion of three (3) bedroom market rate Units to total market rate Units, unless four plus (4+) bedroom Wor kforce Units are provided. 2.4.4. The proportion of four plus (4+) bedroom Workforce Units to total Workforce Units must meet or exceed the proportion of four plus 4+ bedroom mar ket rate Units to total market rate Units. 2.4.5. If the Development contains a mix of different types of Units, (e.g. condominium, townhouse, detached, etc), the proportion of Workforce Units of each type to total Workforce Units must be approximately the same as t he proportion of market rate Units of each type to total market rate Units. 2.4.6. If the development includes both for sale and for rent Units, t he proportion of for rent Workforce Units to for sale Workforce Units must not exceed the proportion of for rent market rate Units to for sale market ra te Units; provided however if the Workforce Housing Units are funded under Florida Housing Finance C orporation’s Housing Credit or SAIL Programs, the proportionality requirement herein stated shall not apply if the Development provides at least thirty two (32) of the “for sale” Units as Workforce Housing Units. 5 2.4.7. The total number of one bedroom Units shall not exceed 30% of the total number of Units in the Project, including both Workforce Uni ts and market rate Units. 2.5. Workforce Housing Units offered for rental shall be marketed continuously as Workforce Housing Units. In the event that, notwithstanding the marketing efforts, Workforce Housing Unit(s) offered for rental r emain vacant for forty- five (45) days or more due to a lack of Eligible Occupants, t he Workforce Unit(s) may be rented to other non-Eligible Occupants, provided that the rental rate is the same as it would have been if the occupant had been deemed to be an Eligibl e Occupant under the City’s Workforce Housing Ordinance. In such event, the Unit will sti ll be considered a Workforce Housing Unit for the purposes of this Ordinance for the dur ation of the rental term provided, however, in no event shall there be less than fifteen p ercent (15%) of the Units occupied or available for occupancy at any time by El igible Occupants. Notwithstanding the above, in the event that despite good fa ith marketing efforts, occupancy of fifteen percent (15%) of the Units by Eli gible Occupants cannot be achieved, City and Developer shall, within 30 days of a request by Developer, negotiate in good faith to agree upon an alternative commercially reasonab le percentage and this Covenant shall be amended accordingly. III. FUTURE SALE OF WORKFORCE HOUSING UNITS 3.1. Should Units be offered for sale in the future in accordance with Florida Condominium Law, only deeds of those units to be sold as Workforce Housing U nits shall include reference to this Covenant. All sales contracts s hall state that the Workforce Housing Unit is part of the Affordable Housing Program and subject to these Covenants. All deeds to Unit Owners of Workforce Housing Units (except for a deed for an Exempt Transfer) shall provide that the Delray Beach Community Land T rust, Inc., a Florida not for profit corporation (“DBCLT”) shall have the right of first refusal to purchase the Workforce Housing Unit on the same terms and conditions as a prospec tive buyer. Developer and/or the Workforce Housing Unit Owner shall notify t he DBCLT and the City in writing within five (5) days after the Developer’s or Workforce Housing Unit Owner’s acceptance of a contract for sale and purchase (exc ept for an Exempt Transfer) and shall include in the notice a true and correct copy of the c ontract. The DBCLT Trust shall have ten (10) business days after receipt of the written notice and contract to exercise its right to purchase the Unit on the same terms as stated in the contract, except as stated herein. The DBCLT shall deliver written notice of its exercise to purchase the Workforce Housing Unit to the Developer/ Workforce Housing Unit Owner within ten (10) days after the receipt by the DBCLT of the Developer’s/Unit Owne r’s written notice. The DBCLT shall close the transaction within thirty (30) business days after its election to exercise its right of first refusal. In the event the DB CLT is not then in existence or no longer qualifies to act as a Sub-Recipient for the City, the n the City, its successors and assigns may exercise the right of first refusal. 6 3.2. All purchasers of Workforce Housing Units (except a purchaser pursuant to an Exempt Transfer) shall be Moderate Income Households and m ust be First Time Home Buyers. 3.3. Owners of Workforce Housing Units (other than the Developer) sha ll be required to occupy the Unit. If, during ownership, the Owner is una ble to continuously occupy the Unit due to illness or incapacity, based upon evidence a nd application made to the City, City may in its discretion, excuse compliance with this requireme nt. 3.4. Closing costs and title insurance shall be paid pursuant to the c ustom and practice in Palm Beach County at the time of closing. No char ges or fees shall be imposed by the seller on the purchaser of a Workforce Housing Unit which are in addition to or more than charges imposed upon purchasers of market rate Units, except for administrative fees charged by the City/CRA, or their designee. 3.4.1. The maximum sales price of a Workforce Housing Unit (except f or an Exempt Transfer) shall be established by the City Communi ty Improvement Department based on a formula that considers the prevailing institutional lender mortgage interest rates, as approved by the City Commission by resolution. 3.5. Except for an Exempt Transfer, no Workforce Housing Units shall b e offered for sale to the general public until all requirements of this Covenant are met. Each purchaser shall be an Eligible Occupant. 3.6. Except as expressly permitted by this Covenant, no Workforce Ho using Unit may be transferred. 3.7. At all times, at least thirty-two (32) of all Units in the D evelopment must be Workforce Housing Units that are affordable to Moderate Income Households . 3.8. Not less than ten (10) calendar days prior to the closing on any sale or resale (except for an Exempt Transfer), the City shall be notified of the sale or resale, and the City shall be provided with a true and correct copy of the proposed contract. Developer or Workforce Housing Unit Owner, respectively, shall deliver written notice of the intent to sell to the City, and shall provide to the City a ll information which is necessary for the City to determine that the proposed sale c omplies with the terms, restrictions, and conditions contained in this Covenant. The informati on shall be provided to the City on City approved forms which shall be executed under oa th by the proposed transferor or transferee, as applicable. The City shall have ten (10) business days after the receipt of the written notice to determine and notify the Develo per and/or Workforce Housing Unit Owner whether the proposed transfer is in complia nce with the terms, conditions, and restrictions contained in this Covenant. If not, the pr oposed transfer shall not be made. If the City does not deliver written notice to De veloper and/or Workforce Housing Unit Owner with said 10-day period that the proposed contra ct is not in compliance, such contract shall be deemed approved by the City. C ity shall have the right to waive the notice requirements at its sole discretion as circumstances may warrant to 7 facilitate sale of Workforce Housing Units. Each contract for sale and purchase of a Workforce Housing Unit (except for a deed for an Exempt Transfer) shall contain a clause which subjects the proposed Transfer to the prior review of the City. IV. ADDITIONAL RESTRICTIONS 4.1. All Workforce Housing Units constructed or rehabilitated in the Pro ject shall be situated within the Real Property so as not to be in less desirable locations than market-rate Units in the Development and shall, on average, be no less accessible to public amenities, such as open space, as the market-rate Units. 4.2. Workforce Housing Units shall be integrated with the rest of the Development and shall be compatible in exterior design, appear ance, construction, and quality of materials and contain comparable HVAC systems and appliances with market rate Units and provide them as standard features. All Workforce Hous ing Units shall contain comparable square footage to the corresponding market-rate Unit. 4.3. The construction schedule for Workforce Housing Units shall be consistent with or precede the construction of market rate Units. 4.4. There shall be no lot premiums charged on the Workforce Housing Units 4.5. Resale and subsequent rentals of Workforce Housing Units. To mai ntain the availability of Workforce Housing Units which are constructe d in the Development, the following resale and/or rental conditions are imposed on the Workforce H ousing Units and the same shall also be included in the deed: a. All Workforce Housing Units shall remain affordable for a period of no less and no more than forty (40) years commencing from the date of initial occupancy of the Unit. b. Except for an Exempt Transfer, all Workforce Housing Units must be rented or sold to all Eligible Occupants except as otherwise provided in Section 2.5. c. If the Units in the Development are part of a condominium, cooperative, homeowners association or similar community, these Covenants shall be incorporated into the governing documents of such community and the governing documents shall be approved by the City Attorney. The governing documents may not be amended without the City’s consent. d. Workforce Housing Unit resales shall be limited to Households of the same category relative to income. 8 e. The sales price of Workforce Housing Units may not exceed the upper limit of affordability for the income category to which the Unit was originally assigned. f. Transfers of title under the following circumstances shall be allowed, and are not subject to the Affordability Controls included in this Covenant: i. Transfers by inheritance to the purchaser-owner's surviving spouse, qualified domestic partner, or lineal descendants, or; ii. Transfers of title to a spouse as part of a divorce decree, or to a qualified domestic partner as part of a court approved property settlement agreement; iii. Acquisition of title or interest therein by an existing Owner’s spouse if it is in conjunction with marriage of the Owner and his spouse, or by an existing Owner’s qualified domestic partner; or iv. Exempt Transfers. 4.6. No resales of Workforce Housing Units are permitted until the requirements of this Covenant are met. 4.7. No Workforce Housing Unit may be sublet or assigned to a te nant(s) or purchaser(s) whose income exceeds the percent of AMI under wh ich the Unit was originally approved, except as otherwise provided in Section 2.5. 4.8. Household income is determined by the cumulative income of all tenants or purchasers under one (1) roof. 4.9. The maximum permitted resale price may not exceed the ini tial sales price of the Workforce Housing Unit, subject to an increase at the s ame rate as the Palm Beach County AMI has increased from the initial date of purchase. 4.10. Nothing contained in this Covenant shall require an Eligible O ccupant to vacate a rental Workforce Housing Unit or to sell a Workforce Hous ing Unit if the tenant(s) or purchaser(s) income respectively, later exce eds AMI, provided such Household initially qualified as Eligible Occupants for such le ase or purchase. 4.11. The forms of the lease, contract for sale (except for an Exe mpt Transfer), and deed for the rental and sale of a Workforce Housing Unit, respe ctively, shall be approved in advance for compliance with this Covenant by the Cit y Attorney, which approval shall not be unreasonably withheld. 9 4.12. To ensure the Developer’s compliance with the Affordability C ontrols and restrictions contained in this Covenant, not later than the t enth (10 th ) day of each calendar month for every month during the term of this Covenant, Developer s hall deliver a written report (“Report”) to the City containing such information and doc uments as the City may require to verify that the Developer is in compliance with this Cove nant. The Report shall be current as of the first day of the month in which the Report is delivered to the City. The form of the Report shall be approved by the City Attorney. At minimum, the Report shall contain the following information and documents with respec t to each Workforce Housing Unit: 4.12.1. With respect to Workforce Housing Unit leases: a. Name and address of each Unit Eligible Occupant and member of the Household. b. Date lease term commenced. c. Date lease term terminates. d. Amount of monthly rent due under the lease. e. Qualifying Household income. f. Unit address. g. Number of bedrooms and baths in each Unit. h. Household size. i. Whether Unit is occupied or vacant. j. Total number of Workforce Housing Units presently leased. 4.12.2. With respect to Workforce Housing Unit sales: a. Total number of Workforce Housing Units listed for sale. b. Total number of Workforce Housing Units transferred by the Developer. c. Date of each sale closing. d. Household size. e. Name and address of all Eligible Occupants. 10 f. Number of bedrooms and baths in Unit. g. A copy of the recorded instrument which transferred the Unit. h. Unit address. i. Qualifying Household income. 4.12.3. The Report shall be executed under Oath by the Developer or it s authorized agent or representative. 4.13. Provided no Units are offered for sale by the Developer and the Developer owns all of the Units in the Development, the Developer may redesignate a Unit as a rental Workforce Housing Unit or redesignate a Unit as a market rate renta l Unit provided, at all times, there is not less than thirty two (32) rental Workforce Housing Units in the Development. 4.14. At any time and from time to time, the City may conduct wri tten or oral surveys of Eligible Occupants and Unit Owners to verify the Developer’s c ompliance with the terms and conditions of this Covenant, and City may enter t he Development and access the Workforce Housing Units for the purpose of conducting per sonal interviews and obtaining other information reasonably necessary to verify Developer’s compliance with the City’s Workforce Housing requirements. 4.15. Developer shall comply with all applicable Federal, Stat e and local laws, rules, regulations and ordinances relating to the sale and rental of r eal property. 4.16. Developer shall promptly notify the City upon the occurrence of an Exe mpt Transfer. V. DURATION AND AMENDMENT 5.1. For both sale and rental of Workforce Housing Units, this Covenant shall remain in effect for forty (40) years from the date of recording of this Covenant in the Public Records of Palm Beach County, Florida. This Covenant shal l apply to any replacement structure or structures constructed if a structur e containing a Workforce Housing Unit or Units is demolished or destroyed, provided that if demolition or destruction of a structure containing Workforce Housing Units oc curs thirty-five (35) years after recording of this Covenant and demolition or destruc tion was unintentional, this Covenant with respect to the Unit in the structure shall terminate on demolition or destruction. 5.2. Covenant Running With Land . The terms of this Covenant constitute covenants running with the Real Property and each designated Workfor ce Housing Unit. 11 This Covenant shall bind, and the benefit hereof shall inure to, Developer, the Workforce Housing Unit Owners, DBCLT, and the City, and any heirs, legal r epresentatives, executors, successors and assignees thereof. The Workforce H ousing Units shall be held, conveyed (including pursuant to an Exempt Transfer), hypothecated, enc umbered, leased, rented and occupied, subject to the covenants, restrictions and limitation set forth herein, which are intended to constitute both equitable servitudes and co venants running with the Real Property. Any lessee, buyer, or transferee of a Work force Housing Unit or any portion thereof, by acceptance of a lease or a deed therefor, or by the signing a lease or of a contract to purchase the same, shall, by acceptance of s uch lease or deed or by the signing of such contract or agreement, be deemed to have consent ed to and accepted the covenants, conditions, restrictions and limitations set forth herei n, whether or not there is any express reference to this Covenant in such lease, deed or contra ct. 5.3. Amendment . This Covenant may be amended at any time by a recorded document executed and acknowledged by the Unit Owners (including De veloper, should Developer hold a Unit for sale) and the City. An amendment ma y be effective as to some but not all of the Units, in which event it need only be approved b y the Unit Owner(s) of the Unit(s) so affected. VI. ENFORCEMENT 6.1. Right to Enforce . The City reserves, and Developer, all proposed lessees, buyers and the Workforce Housing Unit Owners are deemed to have granted the City the right to review and enforce compliance with all provisions of t his Covenant, as further set forth in this Article VI. (a) In the event that the City has reasonable cause to believe tha t the Developer, lessee, occupant, Household or a Workforce Housing Uni t Owner is in default of any of the provisions of this Covenant, then the City Manager, or his or her designee, may inspect the Unit owned by the Developer or such Workforce Ho using Unit Owner at any reasonable time and from time to time, after providing the Developer, lessee or such Workforce Housing Unit Owner not less than twenty-four (24) hours advance written notice, except in the case of an emergency when less advance notice may be given. (b) Except in the case of a default which constitutes an incurab le default or involves the health, safety and welfare of Households in the Development, or in the case of an emergency (in which event no notice and opportuni ty to cure are required), in the event of any other default of this Covenant, the City shall give the Developer, lessee, Workforce Housing Unit Owner or Household Occupant who is in default, fifteen (15) days written notice of such default, which notice shall state the nature of the default. If the default is not cured to the satisfaction of the City wi thin fifteen (15) days from the giving of such notice, or immediately when no notice and opportuni ty to cure is required, the City may pursue any or all remedies available to it, as set forth in Section 6.1(c) below. (c) The City hereby reserves the right to enforce this Covenant b y pursuing any and all remedies provided by law or in equity. The City’s remedies shall 12 include, by way of example and not limitation, the right to sp ecific performance of this Covenant; the right to a mandatory injunction requiring the sale or lease of a Workforce Housing Unit in conformance with this Covenant; the right to cancel and declare void the sale, deed, contract or lease; and the right to remove occupant s, and damages and injunctive relief for breach of this Covenant. All of the remedi es available to the City shall be cumulative, and the City’s election to pursue any reme dy shall not preclude the City for then or later pursuing any one or more other remedies. (d) In the event City resorts to litigation with respect to any default under this Covenant, the prevailing party shall be entitled to recover i ts damages and costs, including expert witness fees from the party at fault. Deve loper shall not be liable for default that was due to misrepresentation or other wrongful ac t of an occupant. The party in default hereunder shall be responsible for the costs require d to enforce the provisions of this Covenant. Venue for any action for breach of, or to enfor ce, this Covenant shall be properly in Palm Beach County, Florida. (e) In the event any Workforce Housing Unit is transferred or lease d in a manner that is not in full compliance with the provisions of this Covenant, such transfer or lease shall be wholly null and void and shall confer no title or rights whatsoever upon the purported transferee or lessee. 6.2. Priority of Covenant . This Covenant shall be of equal dignity to, and shall not be subordinated to, any lien or encumbrance, including withou t limitation, any Institutional Lender, and shall survive and not be extinguished by the foreclosure or deed- in-lieu of foreclosure regarding any such liens or encumbranc es. This includes, but is not limited to, judgment liens, assessment liens, tax liens, c onstruction liens and mortgage liens. VI. MISCELLANEOUS 7.1. No Third Party Beneficiaries . There are no intended third party beneficiaries of this Covenant, and no party other than the C ity shall have standing to bring an action for, breach of, or to enforce, the provisions of this Covenant, excep t for the Delray Beach Community Land Trust which shall be a third par ty beneficiary of this Covenant with respect to its right of first refusal. 7.2. Notices . Notices to any person or entity shall be given in writing and delivered in person or mailed, by certified or registered pre paid U. S. Mail, return receipt requested, to the person’s or entity’s representative set forth belo w (as may be changed by notice from time to time) at the address set forth below: Notices to the City shall be sent to: City of Delray Beach 100 N. W. 1 st Avenue Delray Beach, Florida 33444 13 Attention: City Manager With a copy to: City Attorney City of Delray Beach 200 N. W. 1 st Avenue Delray Beach, Florida 33444 Notices to the Developer shall be sent to: Bamfour, LLC 50 SE 4 th Avenue Delray Beach, Florida 33483 ATTN: Mr. Bradley Morton DKB Realty Investment, Inc. 16273 Brindlewood Circle Delray Beach, Florida 33445 ATTN: Mr. David Biggs Mathias Development, Inc. 1030 S. Federal Highway, Ste. 100 Delray Beach, Florida 33483 ATTN: Mr. Robert Mathias Notices to the Delray Beach Community Land Trust, Inc. shall be sent t o: Delray Beach Community Land Trust, Inc. 20 North Swinton Avenue Delray Beach, Florida 33444 Notices to a Workforce Housing Unit lessee or Workforce Housing Unit Owner may be given in like manner addressed to the applicable Unit. Such notice shall be deemed given when hand delivered or when deposited, postage prepaid, in the United States mail. 7.3. Severability . If any provision of this Covenant shall be held by a court of proper jurisdiction to be invalid or unenforceable; the remaini ng provisions shall survive and their validity, legality and enforceability shall not in any way be affected or impaired thereby; and the court may, but shall not be required to fashion a substitute for the provision held to be invalid or unenforceable. 7.4. Headings . The headings of the sections in this Covenant are for convenience only and shall not be used to interpret the meaning of any prov ision hereof. 14 7.5. Homestead Waiver . This Covenant is prior and superior to each Workforce Housing Unit Owner’s right to a homestead exemption. Each Workforce Housing Unit Owner waives the Workforce Housing Unit Owner’s homestead rights to the fullest extent that they conflict or impair the City’s rights and remedies under this Covenant. 7.6. No Guarantee . Nothing herein shall be construed or give rise to any implied representation, warranty or guarantee, and the City expressly disclaims, that any Workforce Housing Unit Owner will be able to resell his or her Workforce Housing Unit for the maximum purchase price or recover the purchase pric e for such Workforce Housing Unit or release for the maximum rent for such Workforce Housing Unit. Such Workforce Housing Unit Owner recognizes and accepts that hi s or her Unit may be less marketable than other Units in the Project and may not sell for as great a purchase price. 7.7. Governmental Functions: Notwithstanding anything to the contrary contained in this Declaration: a. Even though the City has certain contractual obligations under t his Covenant such obligations shall not relieve any person subject to this Covenant, from complying with all applicable governmental re gulations, rules, laws, and ordinances; b. To the extent approval or permission must be obtained from th e City, such approval or permission shall be granted or denied in ac cordance with applicable governmental regulations, rules, laws, and ordina nces, and no person shall have any vested rights; c. The City has not waived its sovereign immunity; and d. Any action by City shall be without prejudice to, and shall n ot constitute a limit on, impairment or waiver of, or otherwise a ffect City’s right to exercise its discretion in connection with its governmental or quasi- governmental functions. 7.8. This Agreement shall be governed by and construed in accordance with t he laws of the State of Florida. 7.9. DEVELOPER AND CITY HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVE THE RIGHT ANY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR A RISING OUT OF, UNDER, OR IN CONNECTION WITH THIS COVENANT AND AN Y AGREEMENT EXECUTED IN CONJUNCTION HEREWITH OR THERE WITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY. 15 7.10 This Agreement constitutes the entire agreement betwe en City and Developer. 7.11 In the event of a default of either party to this Covenant , the non-defaulting party may bring an action at law or in equity to enforce his rights under this Covenant. The proper place of venue shall be Palm Beach County, Florida. 7.12 Conflict . To the extent of any conflict between the terms of thi s Covenant and Section 4.7 of the City’s Code of Ordinances in effect as of t he date of the execution of this Covenant by the City, the Code of Ordinances shall control. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] [SIGNATURES ON FOLLOWING PAGES] 16 IN WITNESS WHEREOF, the City and Developer have caused this Covenant to be executed on its behalf by its respective officers thereunto d uly authorized. DEVELOPER Witness BAMFOUR, LLC, ________________________________ a Florida Limited Liability Company Print name of Witness ________________________________ By: _________________________ Bradley Morton, Managing Member Witness ________________________________ Print name of Witness ________________________________ STATE OF FLORIDA COUNTY OF PALM BEACH The foregoing instrument was acknowledged before me this ___ day of _____________ 2011, by Bradley Morton, Managing Member of Bamfour LLC, a F lorida limited liability company who: (please check one) ______ is (are) personally known to me OR ______ has (have) produced ______________________________________ as identification. ______________________________ My Commission Expires: Notary Public 17 Witness DKB REALTY INVESMENT, INC., ________________________________ a Florida Corporation Print name of Witness ________________________________ By: _________________________ David Biggs, President Witness ________________________________ Print name of Witness ________________________________ STATE OF FLORIDA COUNTY OF PALM BEACH The foregoing instrument was acknowledged before me this ___ day of _____________ 2011, by David Biggs, President of DBK Realty Investment , Inc., a Florida Corporation who: (please check one) ______ is (are) personally known to me OR ______ has (have) produced ______________________________________ as identification. ______________________________ My Commission Expires: Notary Public 18 Witness MATHIAS DEVELOPMENT, INC., ________________________________ a Florida Corporation Print name of Witness ________________________________ By: __________________________ Robert Mathias, Director Witness ________________________________ Print name of Witness ________________________________ STATE OF FLORIDA COUNTY OF PALM BEACH The foregoing instrument was acknowledged before me this ___ day of _____________ 2011, by Robert Mathias, Director of Mathias Developm ent, Inc., a Florida Corporation who: (please check one) ______ is (are) personally known to me OR ______ has (have) produced ______________________________________ as identification. ______________________________ My Commission Expires: Notary Public 19 CITY OF DELRAY BEACH, a Florida Municipal Corporation ATTEST: CITY OF DELRAY BEACH, FLORIDA ________________________ By: __________________________ City Clerk Nelson S. McDuffie, Mayor Approved as to legal form and sufficiency: ________________________ City Attorney Witness ________________________________ Print name of Witness ________________________________ Witness ________________________________ Print name of Witness ________________________________ STATE OF FLORIDA COUNTY OF PALM BEACH The foregoing instrument was acknowledged before me this ___ day of _____________ 2011, by Nelson S. McDuffie, Mayor, City of Delray Beach, Florida who: (please check one) ______ is (are) personally known to me OR ______ has (have) produced ______________________________________ as identification. ______________________________ My Commission Expires: Notary Public 20 EXHIBIT “A” Legal Description of Real Property: MEMORANDUM TO:Mayor and City Commissioners FROM:Lula Butler, Director, Community Improvement THROUGH:David Harden, City Manager DATE:November 29, 2011 SUBJECT:AGENDA ITEM 8.I. - REGULAR COMMISSION MEETING OF DECEMBER 6, 2011 REVISED WORKFORCE HOUSING COVENANT HOUSING AGREEMENT/FLORANDA MHP, LLC/NEW CENTURY EXECUTIVE QUARTERS, LLC. ITEM BEFORE COMMISSION City Commission consideration and approval of a rev ised Workforce Housing Covenant between the City of Delray Beach and the Floranda MHP, LLC and New Century Executive Quarters, pursuant to the requirements under Section 4.7 of the Land Deve lopment Regulations (LDR's). BACKGROUND The City Commission approved the original agreement on September 20, 2011. The revision to section 1.11, Moderate Income Household, clarifies that the tables used for the income levels are published by the Florida Housing Finance Corporatio n, specifically in the “Income Limits Florida Housing Finance Corporation CWHIP Homeownerhip Prog ram” table for West Palm Beach – Boca Raton HMFA (Palm Beach) area. RECOMMENDATION Staff is recommending City Commission approval of t he revised Workforce Housing Covenant as proposed between the City and the Floranda MHP, LLC and New Century Executive Quarters, LLC. 1 Prepared by and Return to: Brian Shutt, Esq., City Attorney City of Delray Beach, Florida 200 NW 1 st Avenue Delray Beach, FL 33444 WORKFORCE HOUSING COVENANT THIS WORKFORCE HOUSING COVENANT (the “Covenant”) is ente red into as of the ____ day of _______, 2011, by the CITY OF DELRAY BEACH , a Florida Municipal Corporation, (referred to herein as “City”), and FLORANDA MHP, LLC , a Florida Limited Liability Company, and NEW CENTURY EXECUTIVE QUARTERS, LLC , a Florida Limited Liability Company (referred to herein as “Developer”, which term shall include any successor to Developer as owner of the entire Development). RECITALS A. City has implemented affordable housing requirements as se t forth in Article 4.7 of the Delray Beach Land Development Regulations (“Regulations”) by establishing a Family/Work Force Housing Program (hereinafte r referred to as the “Affordable Housing Program” for the City of Delray Beach . Article 4.7 of the Regulations grants to Developer certain density bonus Units (additi onal market rate Units) beyond the base number allowed per existing City Zoning Ordinance after performance standards have been met. B. Developer was required to be part of the Affordable Housi ng Program with respect to that certain real property which is owned by the Developer and is located in the PC zoning District in Delray Beach, Florida, and more part icularly described in Exhibit “A” which is attached hereto and incorporated by reference herein (“Real Property”). Developer has agreed to provide affordable rental housing Units within the residential development project (“Development”) to be constructed on t he Real Property. C. Pursuant to the City’s Affordable Housing Program, LDR Secti on 4.4.12(G)(5), residential development in the Silver Terrace Courtyards Overlay in the PC zoning district must include a minimum of 20% workforce units consisting of moderate income households at rental rates which do not exceed a certain perc entage of the HUD determined fair market rent for the area. D. Pursuant to Article 4.7 of the Regulations, the Developer has ag reed to enter into this Covenant to evidence of record the affordable housing covenant agains t the Real Property. 2 E. This Covenant shall apply and be enforceable against Develop er and all current and future Owners, as applicable, during the term of this Covenant and shall restrict the sale, resale, rental and use of the applicable housing as p rovided herein. NOW, THEREFORE, City and Developer hereby agree as follows: I. DEFINITIONS The following terms not otherwise defined herein shall have the mea nings set forth below for purposes of this Covenant, and if a term is defined i n the Regulations, the Regulations shall control: 1.1. Adjusted Median Income (A.M.I.) – The Palm Beach County median income, based on a family of four, as published by Florida Housing Finance Agency. 1.2. Affordability Controls – Restrictions placed on dwelling Units by which the rent of such Units and/or the income of the purchaser or lessee will be restricted in order to ensure that the Units remain affordable to moderate income households. 1.3. City – The City of Delray Beach, Florida. 1.4. CRA – The Delray Beach Community Redevelopment Agency 1.5. Development – The housing development at the Real Property for which approvals of density bonus Units have been granted by the City to the Develo per. 1.6. Eligible Occupant – A household who is income eligible to rent a Workforce Housing Unit. Priority will be given to persons who ha ve lived or worked within the City limits of Delray Beach, Florida, continually for one year immediately prior to the date of application for a Workforce Housing Unit in the Development and who are income eligible. 1.7. Exempt Transfer – A Transfer of all of the Development, as opposed to a Transfer of one or more individual Units that are separate f rom a Transfer of the entire Development. 1.8. First Time Home Buyer – A person who has not held ownership in a residence within the past three years. 1.9. HUD means the United States Department of Housing and Urban Development. 1.10. Household – A single person living alone, or two or more persons sharing residency, with a combined income available to cover household expenses. 3 1.11. Moderate Income Household – A household with a gross, combined income between 81% and 120% of the Palm Beach County Adjusted Median I ncome (as defined by the Florida Housing Finance Corporation) as published more specifically in the “Income Limits Florida Housing Finance Corporation CWHIP Hom eownerhip Program” table for West Palm Beach – Boca Raton HMFA (Palm Beach) area. 1.12. Purchase Price or Sales Price shall mean all consideration paid for the Transfer of a Unit either at or outside of closing, but shall not include any proration amounts, taxes, costs and expenses of obtaining financing, the fai r market value of furnishings or personal property, lender fees, title insurance fee s, closing costs, inspection fees, or other normal and customary costs related to the purchase of property but not paid directly to the seller. 1.13. Transfer means any sale, assignment or transfer, voluntary or involuntary, or by operation of law (whether by deed, contract of sale, gift , devise, bequest, trustee’s sale, deed in lieu of foreclosure, or otherwise) of any interest i n a Unit, including but not limited to, a fee simple interest, a joint tenancy interest, a tenancy in common, a life estate, a leasehold interest (except for an Affordable Housing Unit lease as permitted by this Covenant), or any interest evidenced by a land contract by which possession of such Unit is transferred while the existing Unit Owner retains title. 1.14. Unit means a single family, condominium, townhouse, or apartment residence located in the Development. 1.15. Unit Owner means the record title owner at any time of a Unit 1.16. Workforce Housing Unit or Workforce Unit – A dwelling unit for which the rent or mortgage payment (including principal, interest , taxes and Insurance (“P.I.T.I.”)) does not exceed 35% of the gross income of households that cla ssify as Moderate Income Households and meets the other requirements of the Af fordable Housing Program. II. RENTAL OF UNITS 2.1. The Development shall be subject to this Covenant, and each less ee shall be an Eligible Occupant, except as provided in Section 2.5 below. 2.2. In no event shall any Unit in the Development be used for transient , interval or timeshare rental or ownership. 2.3. At all times, at least twenty (20%) percent of all Units i n the Development must be Workforce Housing Units that are available to Moderate Income Househol ds. 2.3.1. Workforce Housing Units targeted to Moderate Income Households at 81% to the 120% affordability level of the Palm Beach County median income, adjusted for family size, shall not have rental rates tha t exceed 140% rent limit 4 for the area (as defined by the Florida Housing Finance Corpora tion) as published more specifically in “Rent Limits Florida Housing Finance Corporation State Housing Initiatives Program (SHIP)” table for West Palm Beach – Boc a Raton HMFA (Palm Beach) area 2.3.2. No Workforce Housing Units shall be offered for rent to the general public until all requirements of this Covenant are met. 2.3.3. No efficiency or studio type Workforce Housing Units are allowed. 2.4. The Developer shall provide Workforce Housing Units that include Uni t types in the same proportion as the market rate housing unit typ es. The following conditions must be met: 2.4.1. The proportion of one (1) bedroom Workforce Units to total Workforce Units may not exceed the proportion of one (1) bedroom ma rket rate Units to total market rate Units. 2.4.2. The proportion of two (2) bedroom Workforce Units to Total Workforce Units may not exceed the proportion of two (2) bedroom m arket rate Units to total market rate Units. 2.4.3. The proportion of three (3) bedroom Workforce Units to total Workforce Units must meet or exceed the proportion of three (3) bedroom market rate Units to total market rate Units, unless four plus (4+) bedroom Wor kforce Units are provided. 2.4.4. The proportion of four plus (4+) bedroom Workforce Units to total Workforce Units must meet or exceed the proportion of four plus 4+ bedroom mar ket rate Units to total market rate Units. 2.4.5. If the Development contains a mix of different types of Units, (e.g. condominium, townhouse, detached, etc), the proportion of Workforce Units of each type to total Workforce Units must be approximately the same as t he proportion of market rate Units of each type to total market rate Units. 2.4.6. If the development includes both for sale and for rent Units, t he proportion of for rent Workforce Units to for sale Workforce Units must not exceed the proportion of for rent market rate Units to for sale market ra te Units; provided however if the Workforce Housing Units are funded under Florida Housing Finance C orporation’s Housing Credit or SAIL Programs, the proportionality requirement herein stated shall not apply if the Development provides at least twenty percent (20%) of the “for sale” Units as Workforce Housing Units. 2.4.7. The total number of Units in the Project, including both Workforce Units and market rate Units, are based on the certified site plan for the P roject. 5 2.5. Workforce Housing Units offered for rental shall be marketed continuously as Workforce Housing Units. In the event that, notwithstanding the marketing efforts, Workforce Housing Unit(s) offered for rental remain vacant for 45 days or more due to a lack of Eligible Occupants, the Workforce Unit(s) may be rented to other non eligible occupants, provided that the rental rate is the same as it would have been if the occupant had been deemed to be an Eligible Occ upant under the City’s workforce housing ordinance. In such event, the Unit will still be cons idered a Workforce Housing Unit for the purposes of this ordinance for the duration of the rental term provided, however, in no event shall there be less than 15 percent of the Units occupied or available for occupancy at any time by Eligible Workforce Housing Occupants. Notwithstanding the above, in the event that despite good fa ith marketing efforts occupancy of 15 percent of the units by Eligible Wor kforce Housing Occupants cannot be achieved, City and Developer shall, within 30 days of a request by Developer, negotiate in good faith to agree upon an alternativ e commercially reasonable percentage and this Covenant shall be amended accordingly. III. FUTURE SALE OF WORKFORCE HOUSING UNITS 3.1. Should Units be offered for sale in the future in accordance with Florida Condominium Law, only deeds of those units to be sold as Workforce Housing U nits shall include reference to this Covenant. All sales contracts s hall state that the Workforce Housing Unit is part of the Affordable Housing Program and subject to these Covenants. All deeds to Unit Owners of Workforce Housing Units (except for a deed for an Exempt Transfer) shall provide that the Delray Beach Community Land T rust, Inc., a Florida not for profit corporation (“DBCLT”) shall have the right of first refusal to purchase the Workforce Housing Unit on the same terms and conditions as a prospec tive buyer. Developer and/or the Workforce Housing Unit Owner shall notify t he DBCLT and the City in writing within five (5) days after the Developer’s or Workforce Housing Unit Owner’s acceptance of a contract for sale and purchase (exc ept for an Exempt Transfer) and shall include in the notice a true and correct copy of the c ontract. The DBCLT Trust shall have ten (10) business days after receipt of the written notice and contract to exercise its right to purchase the Unit on the same terms as stated in the contract, except as stated herein. The DBCLT shall deliver written notice of its exercise to purchase the Workforce Housing Unit to the Developer/ Workforce Housing Unit Owner within ten (10) days after the receipt by the DBCLT of the Developer’s/Unit Owne r’s written notice. The DBCLT shall close the transaction within thirty (30) business days after its election to exercise its right of first refusal. In the event the DB CLT is not then in existence or no longer qualifies to act as a Sub-Recipient for the City, the n the City, its successors and assigns may exercise the right of first refusal. 3.2. All purchasers of Workforce Housing Units (except a purchaser pursuant to an Exempt Transfer) shall be moderate income households and must be First Time Home Buyers. 6 3.3. Owners of Workforce Housing Units (other than the Developer) sha ll be required to occupy the Unit. If, during ownership, the Owner is una ble to continuously occupy the Unit due to illness or incapacity, based upon evidence a nd application made to the City, City may in its discretion, excuse compliance with this requireme nt. 3.4. Closing costs and title insurance shall be paid pursuant to the c ustom and practice in Palm Beach County at the time of closing. No char ges or fees shall be imposed by the seller on the purchaser of a Workforce Housing Unit which are in addition to or more than charges imposed upon purchasers of market rate Units, except for administrative fees charged by the City/CRA, or their designee. 3.4.1. The maximum Sales Price of a Workforce Housing Unit (except for an Exempt Transfer) shall be established by the City Community Improvement Department based on a formula that considers the prevailing Insti tutional Lender mortgage interest rates, as approved by the City Commission by resolution. 3.5. Except for an Exempt Transfer, no Workforce Housing Units shall b e offered for sale to the general public until all requirements of this Covenant are met. Each purchaser shall be an Eligible Occupant. 3.6. Except as expressly permitted by this Covenant, no Workforce Ho using Unit may be transferred. 3.7. At all times, at least twenty percent (20%) of all Units i n the Development must be Workforce Housing Units that are available to moderate income famil ies. 3.8. Not less than ten (10) calendar days prior to the closing on any W orkforce Housing sale or resale (except for an Exempt Transfer), the City shall be notified of the Workforce Housing sale or resale, and the City shall be prov ided with a true and correct copy of the proposed contract. Developer or Workforce Housing Unit Owner, respectively, shall deliver written notice of the intent to s ell to the City, and shall provide to the City all information which is necessary for the City to determine that the proposed sale complies with the terms, restrictions, and conditions con tained in this Covenant. The information shall be provided to the City on City approved forms which shall be executed under oath by the proposed transferor or transferee, as applic able. The City shall have ten (10) business days after the receipt of the written notice to de termine and notify the Developer and/or Workforce Housing Unit Owner whether the propos ed transfer is in compliance with the terms, conditions, and restrictions containe d in this Covenant. If not, the proposed transfer shall not be made. If the City does no t deliver written notice to Developer and/or Workforce Housing Unit Owner with said 10-day period that the proposed contract is not in compliance, such contract shall be deemed approved by the City. City shall have the right to waive the notice require ments at its sole discretion as circumstances may warrant to facilitate sale of Workforce Housing Units. Each contract for sale and purchase of a Workforce Housing Unit (except for a deed for an Exempt Transfer) shall contain a clause which subjects the propo sed transfer to the prior review of the City. 7 IV. ADDITIONAL RESTRICTIONS 4.1. All Workforce Housing Units constructed or rehabilitated in the Pro ject shall be situated within the Real Property so as not to be in less desirable locations than market-rate Units in the Development and shall, on average, be no less accessible to public amenities, such as open space, as the market-rate Units. 4.2. Workforce Housing Units shall be integrated with the rest of the Development and shall be compatible in exterior design, appear ance, construction, and quality of materials and contain comparable HVAC systems and appliances with market rate Units and provide them as standard features. All Workforce Hous ing Units shall contain comparable square footage to the corresponding market-rate Unit. 4.3. The construction schedule for Workforce Housing Units shall be consistent with or precede the construction of market rate Units. 4.4. There shall be no lot premiums charged on the Workforce Housing Units 4.5. Resale and Subsequent Rentals of Workforce Housing Units. To maint ain the availability of Workforce Housing Units which are constructe d in the Development, the following resale and/or rental conditions are imposed on the Workforce H ousing Units and the same shall also be included in the deed: a. All Workforce Housing Units shall remain affordable for a period of no less and no more than forty (40) years from the date of recording of this Covenant in the Public Records of Palm Beach County, Florida. b. Except for an Exempt Transfer, all Workforce Housing Units must be rented or sold to eligible Households and Eligible Occupants except as otherwise provided in Secti on 2.5. c. If the Units in the Development are part of a condominium, cooperative, homeowners association or similar community, these Covenants shall be incorporated into the governing documents of such community and the governing documents shall be approved by the City Attorney. The governing documents may not be amended without the City’s consent. d. Workforce Housing Unit resales shall be limited to Households of the same category relative to income. 8 e. The Sales Price of Workforce Housing Units may not exceed the upper limit of affordability for the income category to which the Unit was originally assigned. f. Transfers of title under the following circumstances shall be allowed, and are not subject to the restrictions included in this Covenant: i. Transfers by inheritance to the purchaser-owner's surviving spouse, qualified domestic partner, or lineal descendants, or; ii. Transfers of title to a spouse as part of a divorce decree, or to a qualified domestic partner as part of a court approved property settlement agreement; or iii. Acquisition of title or interest therein by an existing Owner’s spouse if it is in conjunction with marriage of the Owner and his spouse, or by an existing Owner’s qualified domestic partner; or iv. Exempt Transfers. 4.6. No resales of Workforce Housing Units are permitted until the requirements of this Covenant are met. 4.7. No Workforce Housing Unit may be sublet or assigned to a te nant(s) or purchaser(s) whose income exceeds the percent of AMI under wh ich the Unit was originally approved, except as otherwise provided in Section 2.5. 4.8. Household income is determined by the cumulative income of all tenants or purchasers under one (1) roof. 4.9. The maximum permitted resale price of Workforce Housing Unit may not exceed the initial Sales Price of the Workforce Housing Unit , subject to an increase at the same rate as the Palm Beach County median income has increas ed from the initial date of purchase. 4.10. Nothing contained in this Covenant shall require a Workforce House hold to vacate a rental Workforce Housing Unit or to sell a Workf orce Housing Unit if the tenant(s) or purchaser(s) income respectively, later exce eds AMI, provided such Household initially qualified as Eligible Occupants for such le ase or purchase. 4.11. The forms of the lease, contract for sale (except for an Exe mpt Transfer), and deed for the rental and sale of a Workforce Housing Unit, respe ctively, shall be 9 approved in advance for compliance with this Covenant by the Cit y Attorney, which approval shall not be unreasonably withheld. 4.12. To ensure the Developer’s compliance with the Affordability C ontrols and restrictions contained in this Covenant, not later than the t enth (10 th ) day of each calendar month for every month during the term of this Covenant, Developer s hall deliver a written report (“Report”) to the City containing such information and doc uments as the City may require to verify that the Developer is in compliance with this Cove nant. The Report shall be current as of the first day of the month in which the Report is delivered to the City. The form of the Report shall be approved by the City Attorney. At minimum, the Report shall contain the following information and documents with respec t to each Workforce Housing Unit: 4.12.1. With respect to Workforce Housing Unit leases: a. Name and address of each Unit Eligible Occupant and member of the Household. b. Date lease term commenced. c. Date lease term terminates. d. Amount of monthly rent due under the lease. e. Qualifying Household income. f. Unit address. g. Number of bedrooms and baths in each Unit. h. Household size. i. Whether Unit is occupied or vacant. j. Total number of Workforce Housing Units presently leased. 4.12.2. With respect to Workforce Housing Unit sales: a. Total number of Workforce Housing Units listed for sale. b. Total number of Workforce Housing Units transferred by the Developer. c. Date of each sale closing. d. Household size. 10 e. Name and address of all Eligible Occupants. f. Number of bedrooms and baths in Unit. g. A copy of the recorded instrument which transferred the Unit. h. Unit address. i. Qualifying Household income. 4.12.3. The Report shall be executed under Oath by the Developer or it s authorized agent or representative. 4.13. Provided no Units are offered for sale by the Developer and the Developer owns all of the Units in the Development, the Developer may redesignate a Unit as a rental Workforce Housing Unit or redesignate a Unit as a market rate renta l Unit provided, at all times, there is not less than twenty percent (20%) rental Workforce Housing Units in the Development. 4.14. At any time and from time to time, the City may conduct wri tten or oral surveys of Eligible Occupants and Unit Owners to verify the Developer’s c ompliance with the terms and conditions of this Covenant, and City may enter t he Development and access the Workforce Housing Units for the purpose of conducting per sonal interviews and obtaining other information reasonably necessary to verify Developer’s compliance with the City’s Affordable Housing Program requirements. 4.15. Developer shall comply with all applicable Federal, Stat e and local laws, rules, regulations and ordinances relating to the sale and rental of r eal property. 4.16. Developer shall promptly notify the City upon the occurrence of an Exe mpt Transfer. V. DURATION AND AMENDMENT 5.1. For both sale and rental of Workforce Housing Units, this Covenant shall remain in effect for forty (40) years from the date of recording of this Covenant in the Public Records of Palm Beach County, Florida. This Covenant shal l apply to any replacement structure or structures constructed if a structur e containing a Workforce Housing Unit or Units is demolished or destroyed, provided that if demolition or destruction of a structure containing Workforce Housing Units oc curs thirty-five (35) years after recording of this Covenant and demolition or destruc tion was unintentional, this Covenant with respect to the Unit in the structure shall terminate on demolition or destruction. 11 5.2. Covenant Running With Land . The terms of this Covenant constitute covenants running with the Real Property and each designated Workfor ce Housing Unit. This Covenant shall bind, and the benefit hereof shall inure to, Developer, the Workforce Housing Unit Owners, DBCLT, and the City, and any heirs, legal r epresentatives, executors, successors and assignees thereof. The Workforce H ousing Units shall be held, conveyed (including pursuant to an Exempt Transfer), hypothecated, enc umbered, leased, rented and occupied subject to the covenants, restrictions and li mitation set forth herein, which are intended to constitute both equitable servitudes and co venants running with the Real Property. Any lessee, buyer, or transferee of a Work force Housing Unit or any portion thereof, by acceptance of a lease or a deed therefor, or by the signing a lease or of a contract to purchase the same, shall, by acceptance of s uch lease or deed or by the signing of such contract or agreement, be deemed to have consent ed to and accepted the covenants, conditions, restrictions and limitations set forth herei n, whether or not there is any express reference to this Covenant in such lease, deed or contra ct. 5.3. Amendment . This Covenant may be amended at any time by a recorded document executed and acknowledged by the Unit Owners (including De veloper, should Developer hold a Unit for sale) and the City. An amendment ma y be effective as to some but not all of the Units, in which event it need only be approved b y the Unit Owner(s) of the Unit(s) so affected. VI. ENFORCEMENT 6.1. Right to Enforce . The City reserves, and Developer, all proposed lessees, buyers and the Workforce Housing Unit Owners are deemed to have granted the City the right to review and enforce compliance with all provisions of t his Covenant, as further set forth in this Article VI. (a) In the event that the City has reasonable cause to believe tha t the Developer, lessee, occupant, Household or a Workforce Housing Uni t Owner is in default of any of the provisions of this Covenant, then the City Manager, or his or her designee, may inspect the Unit owned by the Developer or such Workforce Ho using Unit Owner at any reasonable time and from time to time, after providing the Developer, lessee or such Workforce Housing Unit Owner not less than twenty-four (24) hours advance written notice, except in the case of an emergency when less advance notice may be given. (b) Except in the case of a default which constitutes an incurab le default or involves the health, safety and welfare of Households in the Development, or in the case of an emergency (in which event no notice and opportuni ty to cure are required), in the event of any other default of this Covenant, the City shall give the Developer, lessee, Workforce Housing Unit Owner or Household Occupant who is in default, fifteen (15) days written notice of such default, which notice shall state the nature of the default. If the default is not cured to the satisfaction of the City wi thin fifteen (15) days from the giving of such notice, or immediately when no notice and opportuni ty to cure is required, the City may pursue any or all remedies available to it, as set forth in Section 6.1(c) below. 12 (c) The City hereby reserves the right to enforce this Covenant b y pursuing any and all remedies provided by law or in equity. The City’s remedies shall include, by way of example and not limitation, the right to sp ecific performance of this Covenant, the right to a mandatory injunction requiring the sale or lease of a Workforce Housing Unit in conformance with this Covenant, the right to cancel and declare void the sale, deed, contract or lease, the right to remove occupants, and da mages and injunctive relief for breach of this Covenant. All of the remedies ava ilable to the City shall be cumulative, and the City’s election to pursue any remedy shall no t preclude the City for then or later pursuing any one or more other remedies. (d) In the event City resorts to litigation with respect to any default under this Covenant, the prevailing party shall be entitled to recover i ts damages and costs, including expert witness fees from the party at fault. Deve loper shall not be liable for default that was due to misrepresentation or other wrongful ac t of an occupant. The party in default hereunder shall be responsible for the costs require d to enforce the provisions of this Covenant. Venue for any action for breach of, or to enfor ce, this Covenant shall be properly in Palm Beach County, Florida. (e) In the event any Workforce Housing Unit is transferred or lease d in a manner that is not in full compliance with the provisions of this Covenant, such transfer or lease shall be wholly null and void and shall confer no title or rights whatsoever upon the purported transferee or lessee. 6.2. Priority of Covenant . This Covenant shall be of equal dignity to, and shall not be subordinated to, any lien or encumbrance, including withou t limitation, any Institutional Lender, and shall survive and not be extinguished by the foreclosure or deed- in-lieu of foreclosure regarding any such liens or encumbranc es. This includes, but is not limited to, judgment liens, assessment liens, tax liens, c onstruction liens and mortgage liens. VI. MISCELLANEOUS 7.1. No Third Party Beneficiaries . There are no intended third party beneficiaries of this Covenant, and no party other than the C ity shall have standing to bring an action for, breach of, or to enforce, the provisions of this Covenant, excep t for the Delray Beach Community Land Trust which shall be a third par ty beneficiary of this Covenant with respect to its right of first refusal. 7.2. Notices . Notices to any person or entity shall be given in writing and delivered in person or mailed, by certified or registered pre paid U. S. Mail, return receipt requested, to the person’s or entity’s representative set forth belo w (as may be changed by notice from time to time) at the address set forth below: Notices to the City shall be sent to: City of Delray Beach 13 100 N. W. 1 st Avenue Delray Beach, Florida 33444 Attention: City Manager With a copy to: City Attorney City of Delray Beach 200 N. W. 1 st Avenue Delray Beach, Florida 33444 Notices to the Developer shall be sent to: New Century Companies, LLC 1030 S. Federal Highway, Suite 100 Delray Beach, Florida 33483 Notices to the Delray Beach Community Land Trust, Inc. shall be sent t o: Delray Beach Community Land Trust, Inc. 20 North Swinton Avenue Delray Beach, Florida 33444 Notices to a Workforce Housing Unit lessee or Workforce Housing Unit Owner may be given in like manner addressed to the applicable Unit. Such notice shall be deemed given when hand delivered or when deposited, postage prepaid, in the United States mail. 7.3. Severability . If any provision of this Covenant shall be held by a court of proper jurisdiction to be invalid or unenforceable; the remaini ng provisions shall survive and their validity, legality and enforceability shall not in any way be affected or impaired thereby; and the court may, but shall not be required to fashion a substitute for the provision held to be invalid or unenforceable. 7.4. Headings . The headings of the Sections in this Covenant are for convenience only and shall not be used to interpret the meaning of any prov ision hereof. 7.5. Homestead Waiver . This Covenant is prior and superior to each Workforce Housing Unit Owner’s right to a homestead exemption. Each Workforce Housing Unit Owner waives the Workforce Housing Unit Owner’s homestead rights to the fullest extent that they conflict or impair the City’s rights and remedies under this Covenant. 7.6. No Guarantee . Nothing herein shall be construed or give rise to any implied representation, warranty or guarantee, and the City expressly disclaims, that any Workforce Housing Unit Owner will be able to resell his or her Workforce Housing Unit 14 for the maximum purchase price or recover the purchase pric e for such Workforce Housing Unit or release for the maximum rent for such Workforce Housing Unit. Such Workforce Housing Unit Owner recognizes and accepts that hi s or her Unit may be less marketable than other Units in the Project and may not sell for as great a purchase price. 7.7. Governmental Functions: Notwithstanding anything to the contrary contained in this Declaration: a. Even though the City has certain contractual obligations under t his Covenant such obligations shall not relieve any person subject to this Covenant from complying with all applicable governmental regulations, rules, laws, and ordinances; b. To the extent approval or permission must be obtained from th e City, such approval or permission shall be granted or denied in ac cordance with applicable governmental regulations, rules, laws, and ordina nces, and no person shall have any vested rights; c. The City has not waived its sovereign immunity; and d. Any action by City shall be without prejudice to, and shall n ot constitute a limit on, impairment or waiver of, or otherwise a ffect City’s right to exercise its discretion in connection with its governmental or quasi- governmental functions. 7.8. This Agreement shall be governed by and construed in accordance with t he laws of the State of Florida. 7.9. DEVELOPER AND CITY HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVE THE RIGHT ANY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR A RISING OUT OF, UNDER, OR IN CONNECTION WITH THIS COVENANT AND AN Y AGREEMENT EXECUTED IN CONJUNCTION HEREWITH OR THERE WITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY. 7.10 This Agreement constitutes the entire agreement betwe en City and Developer. 7.11 In the event of a default of either party to this Covenant , the non-defaulting party may bring an action at law or in equity to enforce his rights under this Covenant. The proper place of venue shall be Palm Beach County, Florida. 7.12 Conflict . To the extent of any conflict between the terms of this Covena nt and Section 4.7 of the City’s Code of Ordinances in effect as of t he date of the execution of this Covenant by the City, the Code of Ordinances shall control. 15 [SIGNATURES ON FOLLOWING PAGES] Signed, sealed and delivered FLORANDA MHP, LLC in the presence of: _____________________________ By:____________________________________ _____________________________ DAVID BIGGS, MANAGING MEMBER (Name printed or typed) _____________________________ _____________________________ (Name printed or typed) STATE OF FLORIDA COUNTY OF PALM BEACH The foregoing instrument was acknowledged before me this ____ day of ___________, 2011 by David Biggs as Managing Member of FLORANDA MHP, LLC, w ho is personally known to me or who has produced _____________________ as identification. ________________________________ Signature of Notary Public – State of Florida Signed, sealed and delivered NEW CENTURY EXECTIVE in the presence of: QUARTERS, LLC _____________________________ By:________________________________ _____________________________ DAVID BIGGS, MANAGING MEMBER (Name printed or typed) _____________________________ _____________________________ (Name printed or typed) STATE OF FLORIDA COUNTY OF PALM BEACH The foregoing instrument was acknowledged before me this ____ day of ___________, 2011 by David Biggs as Managing Member of NEW CENTURY EXECUT IVE QUARTERS, LLC, who is personally known to me or who has produced _____________________ as identification. ____________________________________ 16 Signature of Notary Public – State of Florida CITY OF DELRAY BEACH, a Florida Municipal Corporation ATTEST: CITY OF DELRAY BEACH, FLORIDA ________________________ By: __________________________ City Clerk Nelson S. McDuffie, Mayor Approved as to legal form and sufficiency: ________________________ City Attorney Witness ________________________________ Print name of Witness ________________________________ Witness ________________________________ Print name of Witness ________________________________ STATE OF FLORIDA COUNTY OF PALM BEACH The foregoing instrument was acknowledged before me this ___ day of _____________ 2011, by Nelson S. McDuffie, Mayor, City of Delray Beach, Florida who: (please check one) ______ is (are) personally known to me OR ______ has (have) produced ______________________________________ as identification. ______________________________ My Commission Expires: Notary Public 17 EXHIBIT “A” Legal Description of Real Property: MEMORANDUM TO:Mayor and City Commissioners FROM:Lula Butler, Director, Community Improvement THROUGH:David Harden, City Manager DATE:November 23, 2011 SUBJECT:AGENDA ITEM 8.J. - REGULAR COMMISSION MEETING OF DECEMBER 6, 2011 CHANGE FUNDING SOURCE FROM DRI TO SHIP/HOUSING REHABILITATION CONTRACT AWARD ITEM BEFORE COMMISSION Approval is requested to adjust funding source for one (1) Housing Rehabilitation grant for the amount of $19,712.10 to be reallocated from Disaster Recov ery Initiative (DRI) Program to the State Housing Initiatives Partnership (SHIP) Program for the foll owing project: 303 S.W. 2nd Avenue/David Thyng, LLC./$31,050 = Total Rehab Cost: $ 32,987.10 BACKGROUND City Commission approved the rehabilitation award f or Evans (303 SW 2 nd Avenue) on August 3, 2010 for $32,987.10 under the Disaster Recovery Initiati ve (DRI) Program. However, to assist with SHIP program expenditure deadlines, staff is requesting a funding source adjustment of $19,712.10 from the DRI program to the SHIP program. FUNDING SOURCE State Housing Initiatives Partnership (SHIP) 118-19 24-554-49.19 $19,712.10 Disaster Recovery Initiative (DRI) 118-1960-554-49.19 $13,275.00 RECOMMENDATION Staff recommends approval to adjust funding source for one (1) Housing Rehabilitation grant for the amount of $19,712.10 to be reallocated from Disaste r Recovery Initiative (DRI) Program to the State Housing Initiatives Partnership (SHIP) Program. BID #: 09-2010 NS APPLICANT: PROJECT ADDRESS: DATE OF BID LETTERS: October 16, 2009 DATE OF BID OPENING: November 10, 2009 GENERAL CONTRACTORS BID AMOUNT BID BOND ABC General Services, Inc Action Home Remodeling All Phase Contracting, Inc.34,650.00 yes Brian E. Rega, Inc. Brigcon Construction Services Built Solid Construction, LLC 30,885.00 yes Citywide Construction Services, Inc.32,405.04 yes CJ Contracting, LLC 28,583.00 yes Cordoba Construction Co.31,230.00 yes Dakota Construction, Inc. David Thyng LLC.30,050.00 yes Darcy Gionfriddo, Inc. DECON Environmental & Engineering, Inc.52,994.00 yes East Coast Restoration Gadsden Property Investment, Inc Grace Construction, Inc. Haywood Construction Hogan Bros. Construction International IQ Constructions, Inc.33,775.00 yes Jemstone Construction Group, Inc.31,786.00 yes Joines Construction & Development, LLC L.A.D. Construction, LLC. Lelack Construction 38,325.00 yes Lelond Contracting NYC Builders, Inc. Precision Construction Group, Inc. Ray Graeve & Sons Construction, LLC 33,020.00 yes South Florida Construction Services, Inc.31,235.00 yes SRJ Construction Corp.42,500.00 no Starmark Properties In-House Estimate 34,964.50 $ BID/CONTRACT AMOUNT :30,050.00 $ Contractor Awarded To David Thyng LLC. Rehabilitation Cost 30,050.00 $ 5% Contingency or $1,000, whichever is less 1,000.00 31,050.00 Lead Inspection 300.00 Lead Treatment Not applicable - Termite Inspection - Termite Treatment 1,547.90 Recording Fees (Paid by City/CDBG)89.20 Total Project Cost 32,987.10 $ Funding Source:State Housing Initiatives Partenership (S HIP) Account #118-1924-554-49.19 19,712.10 Disaster Recovery Initiatives Partnership (DRI) 118-1960-554-49.19 13,275.00 COMMENTS: Funding source adjustment to program CITY OF DELRAY BEACH NEIGHBORHOOD SERVICES DIVISION HOUSING REHABILITATION PROGRAM BID INFORMATION SHEET Genella Evans 303 SW 2nd Avenue Neighborhood Services Division Bid Estimate Summary Bid Number:09-2010 NS OWNER: Genella Evans ADDRESS: 303 SW 2nd Avenue BID ADVERTISEMENT DATE:October 16, 2009 BID OPENING DATE:November 10, 2009 In-House ABC General Services, Inc Action Home Remodeling API Construction All Phase Contracting Brian E. Rega, Inc. Brigcon Construction Built Solid Construction, Citywide Construction CJ Contracting, Cordoba Construction Dakota Construction, Darcy Gionfriddo David Thyng LLC. Decon Enviormental East Coast Restoration Gadsden Property Grace Construction, Haywood Construction Hogan Bros Const IQ Constructions, Inc. Jemstone Construction Joines Construction L.A.D. Construction, Lelack Construction Lelonde Contracting Maralago Construction Morgan Contracting NYC Builders, Inc. Precision Construction Ray Graeve & Sons South Florida Construction SRJ Construction Starmark Properties 1 Install New Roof 6,741.00 $ 7,350.00 $ 6,175.00 $ 6,520.00 $ 7,000.00 $ 6,450.00 $ 7,875.00 $ 14,441.00 $ 8,450.00 $ 7,635.00 $ 7,000.00 $ 5,500.00 $ 8,480.00 $ 9,200.00 $ 2 Soffit and Fascia 355.75 $ 125.00 $ 325.00 $ 350.00 $ 300.00 $ 180.00 $ 125.00 $ 201.00 $ 200.00 $ 300.00 $ 100.00 $ 375.00 $ 250.00 $ 450.00 $ 3 Hurricane Shutters 4,408.00 $ 6,375.00 $ 2,675.00 $ 3,045.00 $ 3,500.00 $ 3,900.00 $ 2,300.00 $ 4,020.00 $ 3,200.00 $ 4,176.00 $ 5,000.00 $ 5,100.00 $ 3,100.00 $ 5,600.00 $ 4 Install Exterior Door 1,450.00 $ 1,000.00 $ 1,350.00 $ 850.00 $ 1,200.00 $ 1,180.00 $ 700.00 $ 1,876.00 $ 1,400.00 $ 600.00 $ 1,250.00 $ 1,000.00 $ 1,040.00 $ 1,700.00 $ 5 Paint Ext House 2,491.50 $ 2,475.00 $ 2,650.00 $ 2,795.00 $ 1,720.00 $ 1,850.00 $ 1,750.00 $ 2,097.00 $ 2,000.00 $ 1,800.00 $ 1,600.00 $ 1,900.00 $ 2,160.00 $ 2,600.00 $ 6 Repair all Windows 910.00 $ 1,300.00 $ 1,800.00 $ 225.00 $ 450.00 $ 900.00 $ 300.00 $ 1,394.00 $ 800.00 $ 700.00 $ 1,100.00 $ 425.00 $ 500.00 $ 650.00 $ 7 Repair Patio Door 450.00 $ 150.00 $ 325.00 $ 215.00 $ 200.00 $ 120.00 $ 200.00 $ 335.00 $ 200.00 $ 200.00 $ 300.00 $ 125.00 $ 180.00 $ 150.00 $ 8 Extend A/C System Drain Line 50.00 $ 125.00 $ 225.00 $ 85.00 $ 250.00 $ 80.00 $ 50.00 $ 27.00 $ 150.00 $ 200.00 $ 250.00 $ 50.00 $ 100.00 $ 100.00 $ 9 Replace Sewer Line 2,470.00 $ 2,600.00 $ 850.00 $ 2,100.00 $ 1,000.00 $ 700.00 $ 3,500.00 $ 3,082.00 $ 1,500.00 $ 2,200.00 $ 7,000.00 $ 1,700.00 $ 950.00 $ 2,950.00 $ 10 Install Base Trim 131.25 $ 300.00 $ 150.00 $ 325.00 $ 297.00 $ 180.00 $ 375.00 $ 2,442.00 $ 225.00 $ 400.00 $ 300.00 $ 150.00 $ 300.00 $ 300.00 $ 11 Install Cabinets and Counter Top 4,350.00 $ 3,750.00 $ 3,500.00 $ 4,300.00 $ 2,300.00 $ 4,850.00 $ 3,500.00 $ 5,494.00 $ 4,000.00 $ 2,700.00 $ 4,860.00 $ 4,775.00 $ 4,600.00 $ 3,900.00 $ 12 Install Interior Door 440.00 $ 400.00 $ 250.00 $ 450.00 $ 365.00 $ 580.00 $ 300.00 $ 570.00 $ 600.00 $ 400.00 $ 600.00 $ 300.00 $ 520.00 $ 800.00 $ 13 Install Medicine Cabinet 440.00 $ 400.00 $ 250.00 $ 315.00 $ 225.00 $ 180.00 $ 70.00 $ 168.00 $ 300.00 $ 100.00 $ 200.00 $ 125.00 $ 80.00 $ 175.00 $ 14 Install Vinyl Tile 213.75 $ 225.00 $ 365.00 $ 675.00 $ 100.00 $ 280.00 $ 300.00 $ 268.00 $ 350.00 $ 300.00 $ 400.00 $ 475.00 $ 310.00 $ 375.00 $ 15 Paint Interior of House 2,415.00 $ 2,520.00 $ 2,100.00 $ 2,470.00 $ 2,100.00 $ 2,800.00 $ 2,100.00 $ 3,350.00 $ 3,000.00 $ 2,000.00 $ 1,500.00 $ 2,200.00 $ 1,780.00 $ 2,800.00 $ 16 Repair Drywall 431.25 $ 375.00 $ 465.00 $ 400.00 $ 250.00 $ 320.00 $ 150.00 $ 402.00 $ 200.00 $ 1,000.00 $ 450.00 $ 275.00 $ 300.00 $ 300.00 $ 17 Install Kitchen Sink 375.00 $ 375.00 $ 365.00 $ 425.00 $ 350.00 $ 400.00 $ 325.00 $ 670.00 $ 400.00 $ 200.00 $ 375.00 $ 375.00 $ 335.00 $ 500.00 $ 18 Install Tub/shower with Grab Bars 1,800.00 $ 1,100.00 $ 2,400.00 $ 2,185.00 $ 1,900.00 $ 1,950.00 $ 1,950.00 $ 4,288.00 $ 2,100.00 $ 2,200.00 $ 1,500.00 $ 2,200.00 $ 1,600.00 $ 3,700.00 $ 19 Install Vanity w/Sink 1,450.00 $ 325.00 $ 575.00 $ 760.00 $ 1,150.00 $ 1,100.00 $ 750.00 $ 402.00 $ 600.00 $ 600.00 $ 1,250.00 $ 1,000.00 $ 1,200.00 $ 1,200.00 $ 20 Install Water Heater 815.00 $ 530.00 $ 565.00 $ 700.00 $ 695.00 $ 580.00 $ 800.00 $ 1,005.00 $ 800.00 $ 600.00 $ 600.00 $ 650.00 $ 525.00 $ 850.00 $ 21 New Tub/Shower Diverter 215.00 $ 800.00 $ 365.00 $ 225.00 $ 300.00 $ 320.00 $ 1,000.00 $ 402.00 $ 500.00 $ 375.00 $ 300.00 $ 750.00 $ 345.00 $ 750.00 $ 22 Repair Toilet 115.00 $ 300.00 $ 475.00 $ 485.00 $ 899.00 $ 240.00 $ 180.00 $ 160.00 $ 100.00 $ 200.00 $ 100.00 $ 275.00 $ 380.00 $ 250.00 $ 23 Install Exhaust Fan 322.00 $ 500.00 $ 595.00 $ 215.00 $ 350.00 $ 360.00 $ 200.00 $ 536.00 $ 600.00 $ 300.00 $ 320.00 $ 325.00 $ 280.00 $ 450.00 $ 24 Install Exterior Light Fixture 345.00 $ 225.00 $ 300.00 $ 450.00 $ 150.00 $ 330.00 $ 350.00 $ 402.00 $ 300.00 $ 300.00 $ 120.00 $ 295.00 $ 300.00 $ 750.00 $ 25 Repair Electrical Service 1,300.00 $ 650.00 $ 990.00 $ 1,205.00 $ 632.00 $ 1,000.00 $ 500.00 $ 3,354.00 $ 1,200.00 $ 1,700.00 $ 1,350.00 $ 1,950.00 $ 1,100.00 $ 1,300.00 $ 26 Smoke Detectors 480.00 $ 375.00 $ 800.00 $ 635.04 $ 900.00 $ 400.00 $ 400.00 $ 1,608.00 $ 600.00 $ 600.00 $ 500.00 $ 725.00 $ 700.00 $ 700.00 $ TOTAL 34,964.50 $ -$ -$ -$ 34,650.00 $ -$ -$ 30,885.00 $ 32,405.04 $ 28,583.00 $ 31,230.00 $ -$ -$ 30,050.00 $ 52,994.00 $ -$ -$ -$ -$ -$ 33,775.00 $ 31,786.00 $ -$ -$ 38,325.00 $ -$ -$ -$ -$ -$ 33,020.00 $ 31,415.00 $ 42,500.00 $ -$ MEMORANDUM TO:Mayor and City Commissioners FROM:Begoña Krane, Engineer Richard C. Hasko, P.E., Environmental Services Dire ctor THROUGH:David T. Harden, City Manager DATE:November 29, 2011 SUBJECT:AGENDA ITEM 8.K. - REGULAR COMMISSION MEETING OF DECEMBER 6, 2011 AMENDMENT NO. 1 TO THE INTERLOCAL AGREEMENT FOR FUNDING OF TR ANSIT INFRASTRUCTURE/PBC ITEM BEFORE COMMISSION Staff requests Commission approval/authorization fo r the Mayor to execute Amendment No. 1 to the Interlocal Agreement between Palm Beach County and the City of Delray Beach for Funding of Transit Infrastructure for purchase and installation of bus shelters (project # 2009-055). BACKGROUND The City of Delray Beach was awarded funding throug h an ARRA grant received by Palm Tran, and on February 1, 2011 Commission approved a contract awa rd to Brang Construction Incorporated to install 23 bus shelters throughout the City. Palm Tran has requested that an additional shelter be installed a t the northeast corner of the SW 10th Street and Cong ress Avenue intersection (shown as shelter #793 on Exhibit A to the Amendment) at an additional cost o f $14,932. Amendment No. 1 to the agreement increases the grant amount to $373,750 to provide f unding for the requested shelter. The attached let ter from Mr. Charles D. Cohen, Palm Tran’s Executive Director, authorizes extension of the p roject completion date by six (6) months to May 18, 2012. RECOMMENDATION Staff recommends approval of Amendment No. 1 to the Agreement between Palm Beach County and the City of Delray Beach adding one additional bus shelter. 1 AMENDMENT No. 1 TO 1 INTERLOCAL (GRANT) AGREEMENT FOR 2 FUNDING OF TRANSIT INFRASTRUCTURE 3 BETWEEN 4 PALM BEACH COUNTY 5 AND 6 THE CITY OF DELRAY BEACH 7 (R2010-0798) 8 9 10 11 This Amendment No. 1 to the Interlocal (Grant) Agreement dated May 18, 2 010, by and 12 between the City of Delray Beach, a Florida municip al corporation, and Palm Beach County , a 13 political subdivision of the State of Florida, is m ade and entered into this _______day of 14 ________, 2011. 15 16 W I T N E S S E T H : 17 18 Whereas , the parties have entered into the above- referenc ed agreement for the 19 purchase, construction, installation and maintenanc e of public transit bus shelters at the site(s) 20 identified in Exhibit “A” of the agreement (referre d to herein as “Agreement”); and 21 22 Whereas, the parties have determined that it is necessary to revise the shelter locations 23 identified in Exhibit “A” to said Agreement. 24 25 Now, therefore, the parties agree to amend the Agre ement as follows: 26 27 1. Exhibit “A” of the Agreement is hereby deleted i n its entirety and replaced with the 28 revised Exhibit “A” dated May 27, 2011, which is at tached hereto and made a part 29 hereof. 30 31 2. The parties’ Contract Representatives may add ad ditional shelter sites to those set 32 forth in the revised Exhibit “A” and modify other i nformation pertaining to the shelter 33 sites contained on Exhibit “A”, as agreed to by the Contract Representatives; 34 provided, that the modifications do not increase th e total obligation of the County 35 beyond the not to exceed grant amount of $373,750.0 0 or decrease the total number 36 of sites where shelters will be located to less tha n twenty-four (24), and that the 37 modifications are otherwise consistent with and per missible under the terms and 38 conditions of the Agreement. 39 40 3. Except as expressly modified above, all other te rms and conditions of the Agreement 41 are hereby confirmed and shall remain in full force and effect. The modifications to 42 the Agreement described herein shall take effect as of May 27, 2011. 43 44 45 (Remainder of Page Intentionally Left Blank) 46 47 48 49 50 51 52 53 54 2 1 IN WITNESS WHERE OF , the parties have executed this Interlocal (Grant) Agreement 2 Amendment No. 1 and it is effective on the date fir st above written. 3 4 Palm Beach County, Florida, by its City of Delray Beach, Florida 5 Board of County Commissioners 6 7 8 9 By:_________________________________ By:_________________________________ 10 Chair Mayor 11 12 13 14 Attest: Attest: 15 16 Sharon R. Block, Clerk & Comptroller 17 18 19 By: By:__________________________________ 20 Deputy Clerk Municipal Clerk 21 22 23 24 25 26 Approved as to Terms and Conditions 27 28 29 30 By:_______________________________ 31 Chuck Cohen, Executive Director 32 Palm Tran 33 34 35 Approved as to Form Approved as to Form 36 and Legal Sufficiency and Legal Sufficiency 37 38 39 40 ___________________________________ ___________________________________ 41 County Attorney City Attorney 42 43 44 45 46 47 48 49 ADelrayBeachARRAAFirstAmend.pt.7-6-2011 50 51 52 53 54 55 56 57 1 Exhibit “A” 2 Dated May 27, 2011 3 to the 4 Interlocal (Grant) Agreement for Funding of Transi t Capital Assistance 5 in the City of Delray Beach 6 (R2010-0798) 7 8 9 The following Enhancement of Transit Infrastructure will be constructed within the 10 jurisdictional boundaries of the MUNICIPALITY and b e funded by this Interlocal Agreement. 11 12 13 14 15 16 17 Shelter # Palm Tran Route Bus Stop Address / IntersectionNotesFacing DIR 1Yes1112Military Trail @ Atlantic Ave. Gramecy Square SW 2Yes7429West Atlantic Ave @ Whatley RoadColony Palm s SE 3Yes287federal Hwy @Mongrove ParkHarbourside RdNE 4Yes7703Atlantic Ave @ Congress Square SW 5Yes7618NE 1st Street @ NE 2nd Ave. (PGW)Astor - Pa d instslledSW 6Yes7352Old Germantown Rd @ San Bernadino Dr. Pad i nstslledNW 7Yes7351Old Germantown Rd @ SW 36Th Ave. Pad instsl ledNW 8Yes7349Old Germantown Rd @Via Verona Pad instslled NW 9Yes7428SW 22nd Ave. @ Germantown SW 10 Yes 7346SW 22nd Ave. @ GermantownOriginal Discretionary GrantSE 11 Yes 220Federal Hwy @Delray PlazaFDOT VarianceSW 12 Yes 7409SW 29th St @SW20TH Terr NE 13 Yes 7362SW 10th Ave In front of TargetSW 14Yes6427Linton Blvd@ Linton Squares Oaks SE 15Yes222SR-5Transportation Ln.NW 16Yes282SR-5 Ave GNE 17Yes221SR-5Fladells WayNW 18Yes224SR-5Lindell Blvd-LatitudeNW 19Yes284SR-5Delray PlazaSE 20Yes219SR-5Tropic BlvdSW 21Yes283SR-5Formerly Ralph BuickNE 22Yes76262605 WestAtlanticAve@NW24th Ave Atlantic H igh SchoolSW 23Yes76702605 WestAtlanticAve@NW24th Ave Atlantic H igh SchoolNW 24Yes79310th Ave@Congress Ave NE Exhibit “A” Dated May 27, 2011 to the Interlocal (Grant) Agreement for Funding of Transi t Capital Assistance in the City of Delray Beach (R2010-0798) ARRA BUS SHELTER LOCATIONS MEMORANDUM TO:Mayor and City Commissioners FROM:Linda Karch, Director of Parks and Recreation THROUGH:David T. Harden, City Manager DATE:November 30, 2011 SUBJECT:AGENDA ITEM 8.L. - REGULAR COMMISSION MEETING OF DECEMBER 6, 2011 CONSENT TO ASSIGNMENT/FAMILY CENTRAL, INC./ EARLY LEARNIN G COALITION OF PBC/SCHOOL READINESS CHILD CARE SERVICE AGREEMENT ITEM BEFORE COMMISSION Request City Commission approval to accept a Consen t to Assignment Agreement between Family Central, Inc., and the Early Learning Coalition of Palm Beach County and the City of Delray Beach for Pompey Park and the Delray Beach Community Center/S chool Readiness Child Care Service Agreements. BACKGROUND Currently, there is an agreement between the City o f Delray Beach and Family Central, Inc., to subsidize child care funding for afterschool sites located at Pompey Park and Delray Beach Community Center. Family Central, Inc. wishes to re-assign the School Readiness Agreements to the Early Learning Coalition of Palm Beach County. Family Central wil l assign all its rights, title and interest to the Early Learning Coalition with the effective date December 30, 2011. RECOMMENDATION Parks and Recreation Department recommends City Com mission approval. MEMORANDUM TO:Mayor and City Commissioners FROM:Linda Karch, Director of Parks and Recreation THROUGH:David T. Harden, City Manager DATE:November 30, 2011 SUBJECT:AGENDA ITEM 8.M. - REGULAR COMMISSION MEETING OF DECEMBER 6, 2011 AMENDMENT NO. 2/SCHOOL READINESS CHILD CARE SERVICE AGREEME NT ITEM BEFORE COMMISSION Request City Commission approval of Amendment # 2 t o the School Readiness Child Care Service Agreement between Family Central, Inc., the Early L earning Coalition and the City of Delray Beach to amend the term of the agreement and the termination provisions for the afterschool programs located at Pompey Park and Delray Beach Community Center. BACKGROUND This Amendment to the Service Agreement, which has been reassigned from Family Central to the Early Learning Coalition, for the School Readiness Child Care Services located at Pompey Park and Delray Beach Community Center will extend the date of the existing contract, currently set to expire o n December 31, 2011, until June 30, 2012. In addition, Early Learning Coalition wishes to ame nd the terms of the Agreement to revise the Termination Provisions pursusant to Section 4 of th e Agreement. REVIEW BY OTHERS The Amendment has been reviewed and approved by the City Attorney's Office. RECOMMENDATION Parks and Recreation Department recommends City Com mission approval. MEMORANDUM TO:Mayor and City Commissioners FROM:Linda Karch, Director of Parks and Recreation THROUGH:David T. Harden, City Manager DATE:November 30, 2011 SUBJECT:AGENDA ITEM 8.N. - REGULAR COMMISSION MEETING OF DECEMBER 6, 2011 CONSENT TO ASSIGNMENT AGREEMENT/FAMILY CENTRAL, INC./ EA RLY LEARNING COALITION OF PBC/AFTERSCHOOL PROGRAM SERVICE AGREEMENT ITEM BEFORE COMMISSION Request City Commission approval to accept a Consen t to Assignment Agreement between Family Central, Inc., the Early Learning Coalition of Palm Beach County and the City of Delray Beach for the Pompey Park and the Delray Beach Community Center/A fterschool Program Service Agreements to Accept Scholarships for School Age Children. BACKGROUND Currently, there is an agreement between the City o f Delray Beach and Family Central, Inc., to accept scholarships for children at the afterschool sites located at Pompey Park and Delray Beach Community Center. Family Central, Inc. wishes to assign the Afterscho ol Program Service Agreements to the Early Learning Coalition of Palm Beach County. Family Ce ntral will assign all its rights, title and interes t to the Early Learning Coalition with the effective dat e December 30, 2011. RECOMMENDATION Parks and Recreation Department recommends City Com mission approval. MEMORANDUM TO:Mayor and City Commissioners FROM:Linda Karch, Director of Parks and Recreation THROUGH:David T. Harden, City Manager DATE:November 30, 2011 SUBJECT:AGENDA ITEM 8.O. - REGULAR COMMISSION MEETING OF DECEMBER 6, 2011 AMENDMENT NO. 3/AFTERSCHOOL PROGRAM SERVICE AGREEMENT TO AC CEPT SCHOLARSHIPS FOR SCHOOL AGE CHILDREN/FAMILY CENTRAL, INC. ITEM BEFORE COMMISSION Request City Commission approval of Amendment # 3 t o the Afterschool Program Service Agreement to Accept Scholarships for School Age Children betw een Family Central, Inc., the Early Learning Coalition and the City of Delray Beach to amend the term of the agreement and the termination provisions for the afterschool programs located at Pompey Park and Delray Beach Community Center. BACKGROUND This service agreement which has been reassigned fr om Family Central to the Early Learning Coalition for the afterschool program service agreements loca ted at Pompey Park and Delray Beach Community Center is to extend the date of the existing contra ct, currently set to expire on December 31, 2011, u ntil June 30, 2012. In addition, Early Learning Coalition wishes to ame nd the terms of the Agreement to revise the Termination Provisions pursuant to Section 4 of the Agreement. RECOMMENDATION Parks and Recreation Department recommends City Com mission approval. MEMORANDUM TO:Mayor and City Commissioners FROM:R. Brian Shutt, City Attorney DATE:November 29, 2011 SUBJECT:AGENDA ITEM 8.P. - REGULAR COMMISSION MEETING OF DECEMBER 6, 2011 TERMINATION OF DEDICATION OF PARKING AGREEMENT/ PINEAPPLE GROVE PROPERTIES, LTD. ITEM BEFORE COMMISSION Approval of the termination of a Dedication of Park ing Agreement for12 spaces adjacent to N.E. 3 rd Avenue and behind the Astor development, located on privately owned property. BACKGROUND The property owner of the Astor development (NE cor ner of Pineapple Grove Way and NE 1 st Street) has requested that the City release the dedication of 12 parking spaces located on property owned by t he property owner but dedicated for public use. When t he Astor was constructed the property owner agreed to construct the 12 parking spaces, between the FEC railroad tracks and N.E. 3 rd Avenue, and make the spaces available to the public. These spaces are no t counted toward the parking calculations required for the Astor. Due to a new business relocating to the Astor development, the property owner has determined that it will need the 12 spaces for its own use. RECOMMENDATION Recommend approval of termination of the Dedication of Parking Agreement. MEMORANDUM TO:Mayor and City Commissioners FROM:R. Brian Shutt, City Attorney DATE:November 29, 2011 SUBJECT:AGENDA ITEM 8.Q. - REGULAR COMMISSION MEETING OF DECEMBER 6, 2011 SETTLEMENT AGREEMENT/BANK OF AMERICA (BAC) ITEM BEFORE COMMISSION Participation in a settlement Agreement between Ban k of America Corporation (BAC) and 28 State Attorneys General to resolve allegations that BAC e ngaged in violations of state and federal antitrust laws. BACKGROUND The City has been asked to participate in the settl ement agreement because of a 10 million dollar revenue bond issued in February 2000 to Bank of Ame rica, through a formal RFP process. It has been alleged that certain BAC employees engaged in antic ompetitive conduct and/or unfair trade practices in the marketing, sale and placement of municipal bond derivatives. The total settlement fund amount is $62.5 million, the City’s share is $35,517.56. If the City agrees to the se ttlement amount then we will forego any further legal action against BAC regardi ng this matter. RECOMMENDATION Approve the participation in the settlement. MEMORANDUM TO:Mayor and City Commissioners FROM:David T. Harden, City Manager DATE:November 28, 2011 SUBJECT:AGENDA ITEM 8.R. - REGULAR COMMISSION MEETING OF DECEMBER 6, 2011 RESOLUTION NO. 54 -11/INTERNET SALES TAX LOOPHOLE ITEM BEFORE COMMISSION Approve Resolution No. 54-11 supporting action by F lorida’s Governor and State Legislature to close the internet sales tax loophole. RECOMMENDATION Approve Resolution No. 54-11. RESOLUTION NO. 54-11 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, SUPPORTING ACTION BY FLORIDA’S GOVE RNOR AND STATE LEGISLATURE TO CLOSE THE INTERNET SALES T AX LOOPHOLE; PROVIDING AN EFFECTIVE DATE. WHEREAS, Florida’s economy continues to struggle; and WHEREAS, Florida’s small businesses form the backbone of our econom y; and WHEREAS, a robust small business sector is essential to reviving Flor ida’s economy; and WHEREAS, out-of-state internet-only retail giants are explo iting a massive tax loophole which puts Florida’s hometown merchants at a competitive disadv antage; and WHEREAS, this tax loophole permits internet-only retailers to avoid the collection of sales taxes, exposing their consumers to hidden tax liability; and WHEREAS, this tax loophole effectively prohibits small busi ness from competing on a level playing field against internet-only retailers; and WHEREAS, this tax loophole is costing jobs in Florida; and WHEREAS, it is unfair to extend special tax privileges to i nternet-only retailers at the expense of Florida’s small businesses; and WHEREAS, a sale is a sale, whether it is made online or on Main Street; a nd WHEREAS, The Governor and The State Legislature have the po wer to close this internet sales tax loophole; and NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISS ION OF THE CITY OF DELRAY BEACH, FLORIDA, AS FOLLOWS: Section 1 . The City of Delray Beach hereby strongly supports efforts at both the state and federal levels to close the Internet sales tax loophole. Section 2 . The City of Delray Beach opposes this special tax treatment for internet-only retailers which unfairly penalizes Florida-based small bu sinesses. RES. NO. 54-11 2 Section 3 . This resolution shall take effect immediately upon its ad option. PASSED AND ADOPTED in regular session on this the 6 th day of December, 2011. ___________________________________ M A Y O R ATTEST: ____________________________ City Clerk MEMORANDUM TO:Mayor and City Commissioners FROM:David T. Harden, City Manager DATE:November 28, 2011 SUBJECT:AGENDA ITEM 8.S. - REGULAR COMMISSION MEETING OF DECEMBER 6, 2011 RESOLUTION NO. 57 -11/POLICE OFFICER AND FIREFIGHTER PENSION PLAN ITEM BEFORE COMMISSION Approve Resolution No. 57-11 supporting Police Officer and Firefighter Pensio n Plan and disability presumption reforms to make the plans sustainable, sound and secure for current and future police officers and firefighters. BACKGROUND The Florida League of Cities is working closely wit h several state legislators in seeking further refo rms to Police and Fire Pension Plans established under Chapters 175 and 185 of Florida Statutes. Reform i s also being sought in disability presumptions for ce rtain illnesses. The attached information from the Florida League of Cities gives additional backgroun d information. The League information does refer to abuse of the p ension plans. That is a problem in some cities, bu t I do not consider it applicable to Delray Beach. Wit h that caveat, I believe the rest of the informatio n provided does fit our situation. We need relief fr om state mandates which have accumulated over the years so that we can negotiate with our Police Offi cers and Firefighters to ensure that we develop sustainable pension plans going forward. RECOMMENDATION Approve Resolution No. 57-11. RESOLUTION NO. 57-11 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA SUPPORTING POLICE OFFICER AND FIREFIGHTER PENSION PLAN AND DISABILITY PRESUMPTION REFORMS TO MAKE THE PLANS SUSTAINABLE, SOUND AND SECURE FOR CURRENT AND FUTURE POLICE OFFICERS AND FIREFIGHTERS; PROVIDING AN EFFECTIVE DATE. WHEREAS, the City of Delray Beach deeply honors and respects the services provided and sacrifices made by police officers and firefighters, and desires to provide current and future police officers and firefighters with a pens ion system that is sound, sustainable and reliable. The City of Delray Beach also desires to protect lo cal taxpayers from unsustainable and unsound pension levels. The City of Delray Beach supports r esponsible reforms that protect pensions so they will be there for future generations of police offi cers and firefighters and safeguard taxpayer dollar s; and WHEREAS, a priority of the City of Delray Beach is for the F lorida Legislature to address numerous legislative actions it has taken t hroughout the past 40 years relating to the City of Delray Beach’s police and firefighter defined benef it pension plans. These actions have had significant negative fiscal impacts on the City of Delray Beach and its taxpayers. The legislative reforms the City of Delray Beach is seeking do not provide cities with a “hand-out” from or a “bail- out” by the Legislature relative to police and fire fighter pensions. Rather, the City of Delray Beach seeks reasonable and responsible changes to state l aw to “level the playing field” and allow cities to determine and implement police and firefighter pension re form at the local level; and WHEREAS, in 2011, the Florida Legislature passed SB 1128, wh ich took important initial steps in reforming city police an d firefighter defined benefit pension plans. The legislation addressed several issues, including pro hibiting “spiking” of pension benefits by restricti ng the use of overtime and unused sick or annual leave payments for pension purposes; eliminating the requirement that increases in police and firefighte r member contributions to the pension plan must also include increases in pension benefits; and cre ating a task force to study issues with various disability presumptions for firefighters and police and corrections officers. Importantly, the 2011 bi ll did not address the 1999 legislative mandate to per petually provide “extra” pension benefits to police and firefighters with insurance premium tax revenue s; and WHEREAS, prior to 1999, cities were largely free to bargain with local police and firefighter unions, or provide for the non-unionize d police and firefighters, the pension benefits tha t best fit the priorities and needs of the city and i ts police and firefighters. In 1999, the Florida Legislature amended Chapters 175 and 185, Florida S tatutes, relating to city police and firefighter defined benefit pensions to require that additional city insurance premium tax revenues (taxes on property and casualty insurance premiums) over a ba se amount be used to provide only “extra” pension benefits to police officers and firefighter s. An “extra” pension benefit is a pension benefit that must have been given to police and firefighters after 19 99 and the benefit must be greater than a pension benefit provided to general city employees. I n aggregate numbers, this mandate has required cities and city taxpayers to provide more than $460 million in new “extra” pension benefits to police 2 Res No. 57-11 officers and firefighters since 1999. This mandate to keep providing “extra” pension benefits is not sustainable, rather the City of Delray Beach needs the flexibility to use insurance premium tax revenues for the current or a decreased level of po lice and firefighter pension benefits to meet the City of Delray Beach’s budget constraints; and WHEREAS, due to severe budget constraints and rapidly increa sing personnel costs, the City of Delray Beach has attempted to re duce pension costs for general employees, police and firefighters. Numerous other cities have also either attempted or considered reducing pension benefit levels for police and firefighters to level s below those in effect before the 1999 legislative pension mandates. The state Division of Retirement interprets current law to say that if a police or firefighter pension benefit is reduced to a level b elow the 1999 level, the pension plan will violate state law and the city would forfeit all insurance premium tax revenues. Thus, when cities attempt to bring police and firefighter pension costs under co ntrol, the cities’ actions are frequently blocked b y the Division of Retirement; and WHEREAS, the Florida Legislature has provided that health co nditions relating to heart disease, hypertension or tuberculosis suffere d by a firefighter, law enforcement officer or correctional officer are presumed to be job related . These “disability presumptions” are applicable to both workers’ compensation and disability pensio n claims and have introduced significant opportunities for abuse in the police and firefight er pension system. Courts have interpreted the presumption laws so favorably toward these employee s that cities and other government employers basically cannot overcome the presumption and show the health condition was not work related. A Task Force on Public Employee Disability Presumptio ns is currently meeting to make findings and recommendations to the Legislature. Changes to pre sumption laws being considered by the Task Force include requiring an employee to meet age and employment requirements, allowing a presumption to be overcome by a preponderance of ev idence, and allowing certain individual risk factors to be considered when applying the presumpt ion, such as tobacco use, weight/diet, genetics and lifestyle choices. All of these proposals are designed to bring a fairer balance to the applicati on of presumption laws. It is important to remember th at just because an individual does not have a disability presumption does NOT mean they cannot ma ke a workers’ compensation or disability pension claim. Rather, it just means that the indi vidual must show the health condition is work related, just like every other employee who makes a worker s’ compensation or pension claim; and WHEREAS, beginning in 1986, the Florida Legislature transfer red all operational and administrative control of city police and firef ighter defined benefit pensions to legislatively created boards of trustees. These boards of truste es run afoul of local control and are separate lega l entities apart from a city that exercise broad powe rs outside a city’s control, such as directing all investments of the pension fund; hiring plan attorn eys, actuaries and other professionals; and making regular and disability pension determination s. In spite of being legislatively created entities and not locally controlled, all costs and expenses, including investment losses, incurred by the boards of trustees of pension plans ultimately beco me a cost to the city because the city is responsible for paying for all pension benefits. A dditionally, boards of trustees are not required to provide fiscal transparency or accountability for substan tial amounts of public funds; and WHEREAS, HB 365 by Representative Fred Costello and SB 910 b y Senator Alan Hays have been filed for consideration during the 2 012 legislative session. HB 365 and SB 910 3 Res No. 57-11 would responsibly promote increased police and fire fighter pension stability, security and sustainability by making the following changes to current s tate law: 1. Collective Bargaining Over Retirement Benefits and Revenu es: Allow cities and police and firefighter unions to collectively bargain the r etirement benefits provided pursuant to, and the use of insurance premium tax re venues provided under, Chapters 175 or 185, Florida Statutes. 2. Alternative Retirement Plans: Allow cities to unilaterall y transition to a defined contribution plan, the Florida Retirement System, or anoth er retirement program for police and firefighters and continue to receive insurance premium tax revenues to pay for the retirement expenses. 3. Boards of Trustees Fiscal Transparency and Accountabilit y: Require statutorily created police and firefighter pension boards of trustees t o adopt and operate under an administrative expense budget, and require a detai led accounting of pension boards of trustees’ expenses. 4. Fiscally Responsible Retirement Plan Termination: Requir e police and firefighter pension boards of trustees and cities to work to gether for a fiscally responsible distribution of plan assets if a city must termi nate its police or firefighter retirement plan. 5. Clarify (Again) Police Overtime Used for Retirement Purpos es: Clarify (due to an incorrect interpretation by the Division of Retirement o f the law passed in 2011) that police officers may use up to 300 hours per year in overtime compensation when calculating retirement benefits as prov ided in the plan or collective bargaining agreement, and that police officers are not entitled to the use of a minimum of 300 hours per year in overtime compensatio n for retirement purposes. 6. Disability Presumptions: Reform current statutory disa bility presumptions for firefighters, law enforcement officers and correctional o fficers relating to health conditions caused by tuberculosis, heart disease o r hypertension to require the employee to meet age and employment requiremen ts, allow the presumption to be overcome by a preponderance of evidence, a nd allow certain individual risk factors to be considered when apply ing the presumption. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSI ON OF THE CITY OF DELRAY BEACH, FLORIDA, AS FOLLOWS: Section 1. That the City of Delray Beach hereby supports poli ce and firefighter pension and disability presumption reforms in gener al, and as more specifically provided in HB 365 and SB 910 for the 2012 Florida legislative session. Section 2. That the City of Delray Beach hereby requests the Florida Legislature to allow cities and police and firefighter unions t o collectively bargain the retirement benefits 4 Res No. 57-11 provided pursuant to, and the use of insurance prem ium tax revenues provided under, Chapters 175 or 185, Florida Statutes. Section 3. That the City of Delray Beach hereby requests the Florida Legislature to allow cities to unilaterally transition to a def ined contribution plan, the Florida Retirement System, or another retirement program for police an d firefighters and continue to receive insurance premium tax revenues to pay for the retirement expenses. Section 4. That the City of Delray Beach hereby requests the Florida Legislature to require statutorily created police and firefight er pension boards of trustees to adopt and operate under an administrative expense budget, and require a detailed accounting of pension boards of trustees’ expenses. Section 5. That the City of Delray Beach hereby requests the F lorida Legislature to require police and firefighter pension boards of trustees and cities to work together for a fiscall y responsible distribution of plan assets if a city m ust terminate its police or firefighter retirement plan. Section 6. That the City of Delray Beach hereby requests the F lorida Legislature to clarify that, due to an incorrect interpretation by the Division of Retirement of the law passed in 2011, police officers may use up to 300 hours per y ear in overtime compensation when calculating retirement benefits as provided in the plan or coll ective bargaining agreement, and that police officers are not entitled to the use of a minimum o f 300 hours per year in overtime compensation for retirement purposes. Section 7. That the City of Delray Beach hereby requests the Florida Legislature to close loopholes that promote abuse in the police and firefighter system and amend current statutory disability presumptions for firefighters, law enforcement officers and correctional officers relating to health conditions caused by tuberculosi s, heart disease or hypertension to require the employee to meet age and employment requirements, a llow the presumption to be overcome by a preponderance of evidence, and allow certain indivi dual risk factors to be considered when applying the presumption. Section 8. That the City of Delray Beach urges the Florida Le gislature to pass and the Governor to approve the above responsible r eform recommendations relating to police and firefighter pension plans and disability presumptions in the 2012 legislative session. Section 9. That the City Clerk is directed to transmit a copy of this resolution to Governor Rick Scott, the Florida Legislature, and the Flor ida League of Cities, Inc. Section 10. That this resolution shall be effective upon adoption. 5 Res No. 57-11 PASSED AND ADOPTED in regular session on this 6 th day of December, 2011 . ATTEST: __________________________ CITY CLERK ___________________________________ MAYOR A One of t h Officer sustaina b Florida c Attache d sheet wi t form at w Because resolutio n Legislat o Thank y o P e A dop t P h e top Legi a nd Firefig h b le, sound a n c ities need t d a re sampl e t h key mes s w ww.flcities the legisla t n s immedia t o rs must hea r o u for being e nsio n t a Re s P olice / slative Prio r h ter Pensio n d secure. t o let their l e resolution s s age points o .com . t ive session t ely. r directly fr o a part of th e n Ref o s oluti o /Fire P r ities for th e n Plans a n l egislators k s (a long an d o n the issu e begins ear l o m their citi e e League’s a o rm A d o n A S P ensi o e Florida L e n d Disabilit y k now that t h d short vers e . This inf o l y next yea r e s on the im p a dvocacy tea d voc a S AP S o n Re f e ague of Cit y Presumpt i h eir city su p s ion) that y o o rmation ca n r (January 1 mp ortance of a m! a cy Ki t uppo r f orm! ies is Refo r i ons to m a p ports HB 3 o ur city can n also be fo u 1 0), we nee adopting th i t r ting r m of City P a ke the pe n 3 65 and SB adopt and a u nd in elec t d cities to a i s legislatio n P olice n sions 910 . a talk t ronic a dopt n . Please provide a copy of your ci ty’s adopted resolution to: Speaker of the House The Honorable Dean Cannon Florida House of Representatives 420 Capitol 402 S. Monroe Street Tallahassee, FL 32399 The Honorable Fred Costello (Bill sponsor) Florida House of Representatives 1101 Capitol 402 S. Monroe Street Tallahassee, FL 32399 The Honorable Seth McKeel Florida House of Representatives 422 Capitol 402 S. Monroe Street Tallahassee, FL 32399 The Honorable Jimmy Patronis Florida House of Representatives 317 House Office Building 402 S. Monroe Street Tallahassee, FL 32399 Senate President The Honorable Mike Haridopolos Florida Senate 409 Capitol 404 S. Monroe Street Tallahassee, FL 32399 The Honorable Alan Hays (Bill Sponsor) Florida Senate 324 Senate Office Building 404 S. Monroe Street Tallahassee, FL 32399 The Honorable Jeremy Ring Florida Senate 210 Senate Office Building 404 S. Monroe Street Tallahassee, FL 32399 Please also provide a copy of your c ity’s adopted resolution to your Hous e and Senate delegations. You can find contact information for your Hous e/Senate members at the links below: House of Representatives - http://www.myfloridahouse.com/Sections/R epresentatives/rep resentatives.aspx Senate - http://www.flsenate.gov/Senators/ Please also provide a copy to: Allison Payne Florida League of Cities Fax (850) 222-3806 or E-mail: apayne@flcities.com 4 Key Messages to Communicate to Public Safeguarding municipal pensions is a critical is sue for Florida’s 410 cities, towns and villages. Politically driven police and fire fighter pe nsion mandates imposed on municipalities by lawmakers in Tallahassee are driving costs up and in crease the potential for abuse in the system. The current taxpayer-funded pension structure is broken. It is unstable, unsustainable and unreliable for future police officers and firefighter s. The time has come to fix the system by implementing responsible reform that protects pensions for the future and stops pension abuse. The pension issue is incredibly complicated. It is important to communicate the concerns of Florida’s municipalities in a way that is easy for people to understand a nd framed appropriately to win the public policy debate. Under the umbrella “stop pension ab use” message, key supporting message elements include: 1. Respect work of police officers and fi refighters -- and pr otect taxpayers. 2. Identify how the current pension system is unsustainable, unsound and subject to potential abuse. 3. Support responsible reforms that stop pensio n abuse, protect pensions so they will be there for future generations of police officers and firefighters and safeguard taxpayer dollars. This messaging approach is supported by scientific research that shows when it comes to police and firefighter pensions, Floridia ns are most concerned by issues related to specific pension abuses, like the disability determination and thos e who retire and make a large sum of money at an early age. Research shows our most effective messages must communicate support for these key elements: x Stopping specific abuses of the system. x Enacting responsible reforms to protect pensions for future generations. These are the strongest points to ma ke to win the debate and bring peop le to our side of the issue. In this messaging, we are positioned to be advocat es for responsible pens ion reform that curbs abuse in the system and puts the system on a more stable footing for the future. The bottom line is, we support well-deserved pensions for police and firefighters that are sound, secure and sustainable – not only for cu rrent officers and firefighters, but for those who choose to protect and serve in the future . 5 Stop Pension Abuse: Key Message Points Umbrella Message x We must stop pension abuse and support responsible reform so good sound, secure and stable pensions will be there for cu rrent and future police and firefighters who step up and answer the call to protect and serve our communities now and in years to come. Supporting Message Statements We Honor Police and Fi refighters’ Service by Stopping Pension Abuse x We all deeply honor and respec t the service provided by police officers and firefighters. That’s why current and future officers and fi refighters deserve a pension system that is sound, sustainable and reliable. x We appreciate the work police and firefighters do but when it comes to their pensions, here are the facts: o The current police and firefighter pensi on system is full of Tallahassee mandates that have helped make it unsustainable, unstable and unreliable . o Police and firefighter pensions are breaking the bank in many communities and hurting service delivery . o There is a high potential for pensi on abuse that must be stopped. o Taxpayers deserve to know that their ha rd-earned tax dollars are not creating inflated windfall lifetime annuities. I Support Responsible Pension Reform to Stop Abuse and Protect Pensions for Current for Future Generations x I support responsible pension reform that curbs abuse, protects local taxpayers and ensures good pensions will be available for current and future generations of police officers and firefighters. Police and firefi ghter families are taxpayers, too. They also deserve to have a pension plan that is sound, stable and sustainable . 6 Stopping Pension Abuse Protects Local Taxpayers x We’ve all worked hard to tighten our be lts and ensure every taxpayer dollar local government receives is wisely spent. Responsible reform to stop pension abuse is so critical to protecting your hard-earned tax dollars . x The current pension system is broken and ripe for abuse that must be tackled. o It allows some police officers or firefight ers to retire early and make more than $80,000 a year … before they turn 50. o It allows officers and firefighters with active lifestyles to claim disability and retire early while collecting full benefits – some even draw disability and leave service to take other phy sically demanding jobs. o It automatically assumes a police officer with high blood pressure or a breathing condition contracted that illness on the j ob and allows them to retire early on disability – even if the cause of the illness is due to fam ily history or their lifestyle and not their job. x To protect local taxpayers, responsible reform is needed to reign in unchecked benefit growth, crack down on abuse and put poli ce and firefighter pensions on a strong, secure and sustainable footing for the future . x Local government is the government closest to the people – and the one taxpayers trust the most. We need pension reform that allows local government – not Tallahassee – to determine salaries and benefi ts for police and firefighters . Let’s respect home rule and allow cities to deal with local problems locally . MEMORANDUM TO:Mayor and City Commissioners FROM:Rebecca S. O'Connor, Treasurer THROUGH:David T. Harden, City Manager DATE:December 1, 2011 SUBJECT:AGENDA ITEM 8.T. - REGULAR COMMISSION MEETING OF DECEMBER 6, 2011 RESOLUTION NO. 58 -11/ADDENDUM TO THE LEASE PURCHASE AGREEMENT/SUNTRUST LEASING ITEM BEFORE COMMISSION Approve Resolution No. 58-11 authorizing the execution and delivery of a Mast er Lease Agreement Equipment Schedule No. 03 in the amount of $825,000 , and related instruments, and determining other matters in connection with this equipment lease. Sc hedule No. 03 is an amendment to an existing Master Lease agreement dated May 20, 2004 with SunT rust Leasing Corporation and will provide financing for the reimbursement of Public Safety ha rdware and software expenses totaling $825,000 at a rate of 1.855% for an 84 month term. Terms of the a mendment provide for payments to be made in arrears and a 1% penalty for pre-payment. BACKGROUND On November 17, 2011 the City Finance Department re ceived bids from various financial institutions for the above referenced financing (“Lease Agreemen t Amendment”). Banks were requested to submit their bids based on a principal of $825,000, a tax exempt bank qualified rate and an 84 month fixed ra te term. The Lease Agreement Amendment will provide fu nding to reimburse, in part, the cost of Police and Fire hardware and software. The City received responses from BB&T Bank, Bank of America Public Capital Corporation and SunTrust Leasing Corporation. SunTrust Leasing Corp oration came in with the lowest bid. BB&T Bank was eliminated due to inconsistencies with their bi d causing several revisions coming in after the deadline. Please see the table below: Bank Rate Terms Interest Cost Misc. Cost Total Cost of Borrowing Bank of America 84 month - 2.17% Monthly in Arrears; 2% pre-payment penalty $64,989 $0 $64,989 SunTrust 84 month - 1.855% Monthly in Arrears;1% pre-payment penalty $55,359 $2,500 $57,859 RECOMMENDATION Recommend approval of Resolution No. 58-11 authorizing Master Lease Agreement Schedule No. 3 along with other related instruments with SunTrust Leasing Corporation (the low bidder) as outlined above. MEMORANDUM TO:Mayor and City Commissioners FROM:Robert A. Barcinski, Assistant City Manager THROUGH:David T. Harden, City Manager DATE:November 30, 2011 SUBJECT:AGENDA ITEM 8.U. - REGULAR COMMISSION MEETING OF DECEMBER 6, 2011 SPECIAL EVENT REQUEST/ON THE AVE ITEM BEFORE COMMISSION City Commission is requested to approve a Special E vent Permit for On the Ave scheduled for January 19, 2012 from 6:30 p.m. to 10:30 p.m., to grant a t emporary use permit per LDR Section 2.4.6(F) for th e closure of Atlantic Avenue from Swinton to the west side of NE/SE 6 th Avenue, Railroad Avenue from Atlantic north to 150 feet north of the east/west a lley, and to the alleys north and south of Atlantic on NE/SE 1 st Avenue, NE/SE 2 nd Avenue, SE 3 rd Avenue and NE/SE 4 th Avenue and to authorize staff support for security and traffic control, EMS assis tance and fire inspection, barricade set up and removal, and trash removal and clean up. BACKGROUND Attached are the special event permit request, site plan, budget and Economic Calculator for this even t received from Sarah Martin, Executive Director of t he Delray Beach Marketing Cooperative. The estimate of overtime costs for this event is $8,200 and cost for the barricade rental is estimated at $150. Based on the event agreement, the DBMC is to pay the City 35% for all overtime costs plus the full cost of barricade rental for an estimated char ge of $3,020. RECOMMENDATION Staff recommends approval of the Special Event Perm it, approval of the temporary use permit and street closures, staff support as stated above, including barricades with payment of costs to the City per th e Special Event Policies and Procedures. MEMORANDUM TO:Mayor and City Commissioners FROM:Jasmin Allen, Planner Mark McDonnell AICP, Assistant Director of Planning and Zoning THROUGH:City Manager DATE:December 1, 2011 SUBJECT:AGENDA ITEM 8.V. - REGULAR COMMISSION MEETING OF DECEMBER 6, 2011 REVIEW OF APPEALABLE LAND DEVELOPMENT BOARD ACTIONS ITEM BEFORE COMMISSION The action requested of the City Commission is revi ew of appealable actions which were taken by various Boards during the period of November 14, 20 11 through December 2, 2011. BACKGROUND This is the method of informing the City Commission of the land use actions, taken by designated Boards, which may be appealed to the City Commissio n. After this meeting, the appeal period shall expire (unless the 10 day appeal period has not occ urred). Section 2.4.7(E), Appeals, of the LDRs applies. In summary, it provides that the City Comm ission hears appeals of actions taken by an approving Board. It also provides that the City Com mission may file an appeal. To do so: · The item must be raised by a Commission member. · By motion, an action must be taken to place the ite m on the next meeting of the Commission as an appealed item. REVIEW BY OTHERS Planning and Zoning Board Meeting of November 21, 2 011 No appealable items were considered by the Planning and Zoning Board. The following items which were considered by the Board will be forwarded to t he City Commission for action: A. Recommended approval (7 to 0), of a City-initiated amendment to Land Development Regulations (LDR) Section 4.4.9, “General Commercia l (GC) District”, Subsection (G), “Supplemental District Regulations”, Sub-subsection (3), “Four Co rners Overlay District”, to correct outdated references. B. Recommended approval (6 to 1, Gerry Francio sa dissenting), of a City-initiated amendment to the Land Development Regulations (LDRs) Sections 4.4.6 “Medium Density Residential (RM) District”, 4.4.9 “General Commercial (GC) district”, 4.4.12 Pl anned Commercial (PC) District, 4.4.13 “Central Business (CBD) District” and Section 4.4.28 Central Business District–Railroad Corridor, in order to provide that Assisted Living Facilities will be all owed in the same manner as multiple family resident ial developments with respect to the number of units an d density. C. Recommended approval (7 to 0), of a City-initiated amendment to the Land Development Regulations (LDRs) by amending Section 4.3.3, “Spec ial Requirements for Specific Uses”; by enacting a new Subsection 4.3.3(AAAA), to prohibit Simulated Gambling Devices and enacting a new definition for the same. D. Tabled (7 to 0), a City-initiated amendment to the Land Development Regulat ions (LDRs) by amending Section 4.6.16, “Landscape Regulations” to provide an updated landscape code. Site Plan Review and Appearance Board Meeting of N ovember 30, 2011 1. Approved with conditions (5 to 0, Roger DeCapito ab sent and Sig Hardester resigned) a Class III site plan, landscape plan and architectural elevati on plan associated with the replacement of the previously approved 751 sq. ft. pool house and cons truction of a new 1,683 sq. ft. clubhouse along wit h minor elevation changes to the proposed residential buildings for Midtown , a proposed multiple family residential development, located at the southwest c orner of Old Germantown Road and Linton Boulevard (4600 Linton Boulevard). 2. Approved with conditions (5 to 0), a Class III site plan modification, landscape plan and architectural elevation plan for Harbor’s Edge , an existing residential and health care developme nt, located at the northwest corner of Linton Boulevard and the Intracoastal Waterway (401 East Linton Boulevard). The development proposal is associated with the renovation of a 3,294 sq. ft. interior area for the Independent Living Commons; installation of impact resistant windows and doors; a 1,190 sq. ft . new kitchen addition to the Health Care facility bu ilding; 2,920 sq. ft. of new construction for the Health Care building which includes lobby, physical therapy, speech therapy, and kinesis area and a new entrance canopy area. 3. Approved (5 to 0), a Class III site plan modificati on associated with the conversion of the second floor office area to restaurant for Spoonfed , located at the northwest corner of East Atlantic Avenue and the FEC Railroad (217 East Atlantic Avenue). Historic Preservation Board Meeting of November 16 , 2011 4. Approved with conditions (6 to 0, Iris McDonald abs ent), a Class V site plan, landscape plan architectural elevation plan and a Certificate of A ppropriateness for the property located at 27 – 43 South Swinton Avenue (Swinton Social) and an attendant off-site parking lot located at 10 4 SE 1 st Avenue. The proposal involves the adaptive reuse of the four historic, single-family residences into a spa, two restaurants (referred to as Café and Grill e) and a kitchen; construction of a lap pool locate d to the rear of the buildings that will serve the patro ns of the spa (only during daylight hours). The off -site parking lot will be developed according to the vale t parking standards. Concurrently, the Board took t he following actions with respect to several waiver re quests: i.Approved a waiver to LDR Section 4.4.23(G)(3), whic h prohibits all parking to be located between the structure and the street, by permitting 7 parallel parking spaces to be located between the existing structures and South Swinton Avenue. ii.Approved a waiver to LDR Section 4.5.1(E)(3)(b)2 .,for relief from the number of parking spaces required (reduced from 53 to 33 provided) based upo n presentation of confirmation that adequate parking for the proposed use may be achieved by alt ernate means, i.e. valet parking agreements, etc. iii.Recommended to the City Commission approval of a wa iver to LDR Section 4.5.1(E)(3)(a)1.c., which limits heights of fences and walls to 4’ with in the side street setbacks, by permitting a 6 ’ wall within the side street setback. iv.Recommended to the City Commission approval of a waiver to LDR Section 4.6.9(F)(3)(d),which requires a drive aisle width of 24’, by permitting a drive aisle width of 22’ for the attendant off- site parcel located at 104 SE 1 st Avenue. v.Recommended to the City Commission approval of a w aiver to Section 4.6.9(F)(3)(i), which requires a perimeter landscape buffer of 10’, by pe rmitting a landscape buffer varying from 1’6 ” to 6’4” for the attendant off-site parcel located a t 104 SE 1 st Avenue. RECOMMENDATION By motion, receive and file this report. Attachment: Location Map MEMORANDUM TO:Mayor and City Commissioners FROM:Victor Majtenyi; Deputy Director of Public Uti lities Richard C. Hasko, P.E.; Director of Environmental S ervices Department THROUGH:David Harden; City Manager DATE:November 17, 2011 SUBJECT:AGENDA ITEM 8.W.1 - REGULAR COMMISSION MEETING OF DECEMBER 6, 2011 CONTRACT AWARD/INTERCOUNTY ENGINEERING, INC. ITEM BEFORE COMMISSION Request an award to Intercounty Engineering, Inc. i n the amount of $16,610.00 for the replacement of large valves at the City’s Water Treatment Plant, F ilter #3. BACKGROUND In October 2011, Water Treatment Plant operators fo und a 30” butterfly drain valve and a 20” butterfly fill valve for Filter #3 inoperable. To save costs , staff elected to solicit the material costs separ ate from the installation costs. A recommendation for purch asing only the new replacement valves from the valve manufacturer’s representative, Fluid Control Specialties, Inc., in the amount of $34,812 was presented at the October 18 th , 2011 City Commission meeting. City Commission ap proved. Following that award, utilizing a formal competitiv e quote process, staff solicited quotes for the act ual replacement of the valves. The scope of work cons ists of all labor, material, and equipment associat ed with the removal of two existing defective valves a nd the installation of two new owner furnished valves. Three quotes were received; Florida Desig n Contractors, Inc. in the amount of $23,680, Garne y Companies, Inc. in the amount of $21,010, and Inter county Engineering, Inc. at $16,610. Intercounty Engineering, Inc. has a good performance record on current and previously completed City projects. Upon City Commission approval, Intercounty Engineer ing, Inc. will execute a “Standard Form of Agreement between the City and Contractor”. FUNDING SOURCE Funding is proposed from account #442-5178-536-64.9 0, Water and Sewer Renewal & Replacement Fund/ Other Machinery and Equipment. RECOMMENDATION Staff recommends an award to Intercounty Engineerin g, Inc. in the amount of $16,610 for the Water Treatment Plant Filter #3 Valve Replacements projec t, P/N 2012-059. Water Treatment Plant Filter #3 Valve Replacements P/N 2012-059, Bid #2012-08 Bid Tabulation Unit Price Unit Price Unit Price Unit Price Unit Price U nit Price 1 Mobilization / Setup / Demob. 1LS$2,000.00 $2,000.00 $2,000.00 $2,000.00 $5,000.0 0 $5,000.00 2 Replacement of 30" Butterfly Drain Valve 1LS$6,600.00 $6,600.00 $8,000.00 $8,000.00 $8,500.0 0 $8,500.00 3 Replacement of 20" Butterfly Fill Valve 1LS$5,000.00 $5,000.00 $8,000.00 $8,000.00 $7,170.0 0 $7,170.00 4 Allowance 1LS$3,000.00 $3,000.00 $3,000.00 $3,000.00 $3,000.0 0 $3,000.00 5 Indemnification 1LS$10.00 $10.00 $10.00 $10.00 $10.00 $10.00 Total Bid Price $16,610.00$21,010.00$23,680.00 Florida design Contractors, Inc.Item Description Bid Item No.QuantityUnit Cost Intercounty Engineering, Inc. Garney Companies, Inc. WTP Filter #3 Valve Replacements P/N 2012-059 S:\EngAdmin\Projects\2012\12-059\BUDGET\Bid Tab WTP F ilter 3 Valve Rplcmnts 2011Dec06 Print Date: 11/28/2011 MEMORANDUM TO:Mayor and City Commissioners FROM:Randal L. Krejcarek, P.E., LEED AP, GISP, City Engineer Richard C. Hasko, PE, Environmental Services Direct or THROUGH:David T. Harden, City Manager DATE:November 8, 2011 SUBJECT:AGENDA ITEM 8.W.2 - REGULAR COMMISSION MEETING OF DECEMBER 6, 2011 BID AWARD/LAKE WORTH MONUMENT ITEM BEFORE COMMISSION This item is before the Commission to approve a bid award to Lake Worth Monument in the total amount of $2,100.00 for the purchase of the granite base for the Boy Scout sculpture, Project Number 11-083. BACKGROUND On November 1, 2010, Mr. Shelly Weil made a present ation to the Public Art Advisory Board (PAAB) and PAAB recommended to Commission that the City ac cept the statue donation. Mr. Weil and the PAAB then began discussions regarding the placement of this statute. Both Mr. Weil and the PAAB agreed that the best location would in Old School S quare Park, along the Pineapple Grove Way side of the park, which is also within the Pineapple Grove Art District. City Commission subsequently approved the statue donation and installation site. Estimates were solicited by staff for a solid grani te base, 24”x 38”x 12”; cost include engraving, attachment of statue to base and delivery to Old Sc hool Square Park. Attached are the following: location map, vendor es timate, photograph of statue with details. FUNDING SOURCE 115-1702-579-46.90 (Special Project Funds: Repair & Maintenance Service). RECOMMENDATION Staff recommends approval of the bid award to Lake Worth Monument in the total amount of $2,100.00 for the purchase of the granite base for the Boy Sc out sculpture. 2011-083 (E) Location Map Color selection, next page. 12" 24" 38" Page 1 of 3 Statue is the one on the left. 3 of 3 MEMORANDUM TO:Mayor and City Commissioners FROM:David Boyd, Finance Director Patsy Nadal, Purchasing Manager THROUGH:David Harden, City Manager DATE:November 18, 2011 SUBJECT:AGENDA ITEM 8.W.3 - REGULAR COMMISSION MEETING OF DECEMBER 6, 2011 PURCHASE AWARD/SYSTEMS MAINTENANCE SERVICES (SMS) ITEM BEFORE COMMISSION The City Commission is requested to approve the pur chase of a twenty (20) processors and forty (40) memory module kits with installation for server upg rades from Systems Maintenance Services (SMS) in the amount $21,960.45 including installation, per q uote dated November 2, 2011. BACKGROUND The City’s servers are currently at full capacity for any ad ditional virtual servers. The memory upgrade is required by the virtual servers to support user functions. Virtual servers allow dozens of servers to co-reside on the same computer, instead of requiring a separate computer for each server. Server virtualization also reduces cost because les s hardware is required. It can also utilize resourc es to the fullest which saves on operational costs (e.g. using a lower number of physical servers reduces hardware maintenance). Quotes Received: Systems Maintenance Services $21 ,960.45 Dell $35,338.80 Twincities Digital Refurbished Only FUNDING SOURCE 334-6111-519-64.11 (General Construction Fund: General Governmen t Service/Machinery/Equipment/Computer Equipment). RECOMMENDATION IT staff recommends purchase of twenty (20) process ors and forty (40) memory module kits with installation for server upgrades from Systems Maint enance Services in the amount of $21,960.45 per quote dated November 2, 2011. MEMORANDUM TO:Mayor and City Commissioners FROM:Amy E. Alvarez, Historic Preservation Planner Mark McDonnell, AICP, Assistant Director of Plannin g and Zoning THROUGH:City Manager DATE:November 29, 2011 SUBJECT:AGENDA ITEM 9.A. - REGULAR COMMISSION MEETING OF DECEMBER 6, 2011 WAIVER REQUEST/27 -43 SOUTH SWINTON AVENUE ITEM BEFORE COMMISSION The action requested of the City Commission is to w aive to LDR Section 4.5.1(E)(3)(a)1.c., "Appurtenances, Fences and Walls", to permit the lo cation of a six foot (6’) high wall within the side street setback. BACKGROUND At its meeting of November 16, 2011, the Historic P reservation Board (HPB) conditionally approved a Certificate of Appropriateness (COA) and Class V Si te Plan for the redevelopment of four historically significant properties. The redevelopment includes conversion of four single-family residence to spa and restaurant uses. WAIVER ANALYSIS Pursuant to LDR Section 2.4.7(B)(5), prior to grant ing a waiver, the approving body shall make a finding that the granting of the waiver: (a) Shall not adversely affect the neighbori ng area; (b) Shall not significantly diminish the pro vision of public facilities; (c) Shall not create an unsafe situation; an d (d) Does not result in the grant of a specia l privilege in that the same waiver would be grante d under similar circumstances on other property for a nother applicant or owner. Pursuant to LDR Section 4.5.1(E)(3)(a)1.c., Appurte nances, Fences and Walls, fences and walls over four feet (4’) in height shall not be allowed in front or side str eet setbacks. The proposal includes a six foot (6’) high masonry wall within the side street setback at the southeast corner of the property. The wall runs along the property line as close as 1’ (2 ’ required), and as far away as 7’ (within the setback). This encroachment does not span the length of the s ide street (SE 1st Street) property line. It is lim ited to the easternmost 45’. In consideration of the criteria above, the waiver request may be supported in that it will not advers ely affect the neighboring area because the intent is t o maintain an open streetscape within the historic areas, and the increased height is minimal and main tained toward the rear of the property; the provisi on of public facilities will not be diminished or impa cted; an unsafe situation will not be created, rath er it is a safer situation that will be provided; and, the g ranting of this waiver will not result in a special privilege in that it would be supported under simil ar circumstances on other property for another applicant or owner. Based on the above, positive fi ndings can be made with respect to the waiver request for an increase in height of the wall to si x feet (6’). REVIEW BY OTHERS The HPB considered the subject waiver request concu rrently with the COA and Site Plan requests and recommended approval on a vote of 6-0. RECOMMENDATION Approve the waiver to LDR Section 4.5.1(E)(3)(a)1.c ., Appurtenances, Fences and Walls., which limits heights of fences and walls to 4’ within the side s treet setbacks, by permitting a 6’ wall within the side street setback along SE 1st Street, based upon posi tive findings with respect to the LDR Section 2.4.7 (B)(5). 1 IN THE CITY COMMISSION CHAMBERS OF THE CITY OF DELRAY BEACH, FLORIDA ORDER OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA WAIVER REQUEST FOR 27-43 SOUTH SWINTON AVENUE 1. This waiver request came before the City Commission on December 6, 2011. 2. The Applicant and City staff presented documentary evidence and testimony to the City Commission pertaining to the wai ver request for 27-43 South Swinton Avenue. All of the evidence is a part of the record in this case. Required findings are made in accordance with Subsection I. I. WAIVERS: Pursuant to LDR Section 2.4.7(B)(5), prior to grantin g 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 p ublic 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 ot her property for another applicant or owner. A. Waiver to LDR Section 4.5.1(E)(3)(a)1.c.: Appurtenances, fences and walls, fences and walls over four feet (4’) shall not be allowed in front or side street setbacks. The pro posal includes the provision of a six foot (6’) high masonry wall within the side street setback at the southeast corner of the South Swinton Avenue pr operty. The wall runs parallel to the property line as close as 1’ (2’ re quired), and as far away as 7’ (within the setback). This encroachment does no t span the length of the side street property line; it is limited to the southeastern most 45’. Should the waiver to allow a six foot (6’) high wal l within the side street setback be granted? Yes _______ No _______ 2 3. The City Commission has applied the Comprehensive P lan and LDR requirements in existence at the time the original dev elopment 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 compete nt 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 r eports, testimony of experts and other competent witnesses supporting these findings. 5. Based on the entire record before it, the City Co mmission approves _ denies ___ the waiver requests. 6. Based on the entire record before it, the City C ommission hereby adopts this Order this 6 th day of December, 2011, by a vote of _____ in favor and ____ opposed. ________________________________ ATTEST: Nelson S. McDuffie, Mayor ________________________________ Chevelle Nubin, City Clerk MEMORANDUM TO:Mayor and City Commissioners FROM:Amy E. Alvarez, Historic Preservartion Planner Mark McDonnell, AICP, Assistant Director of Plannin g and Zoning THROUGH:City Manager DATE:November 29, 2011 SUBJECT:AGENDA ITEM 9.B. - REGULAR COMMISSION MEETING OF DECEMBER 6, 2011 WAIVER REQUESTS/104 S.E. 1ST AVENUE ITEM BEFORE COMMISSION The action requested of the City Commission is appr oval of two waivers associated with the redevelopment of a vacant parcel into a valet parki ng lot. The first waiver is to LDR Section 4.6.9(F)(3) (d), which requires a drive aisle width of 24’, by permitting a drive aisle width of 22’. The second waiver is to LDR Section 4.6.9(F)(3)(i), which requ ires a perimeter landscape buffer of 10’, by permitting a landscape buffer varying from 1’6” to 6’4”, as indicated on the plan. BACKGROUND At its meeting of November 16, 2011, the Historic P reservation Board (HPB) conditionally approved a Certificate of Appropriateness (COA) and Class V Si te Plan for the redevelopment of four historically significant properties and the establishment of a v alet parking lot. The valet parking lot will be tie d to the four (4) historic properties located along Sout h Swinton Avenue via Unity of Title. WAIVER ANALYSIS Pursuant to LDR Section 2.4.7(B)(5), prior to grant ing a waiver, the approving body shall make a finding that the granting of the waiver: (a) Shall not adversely affect the neighbori ng area; (b) Shall not significantly diminish the pro vision of public facilities; (c) Shall not create an unsafe situation; an d (d) Does not result in the grant of a specia l privilege in that the same waiver would be grante d under similar circumstances on other property for a nother applicant or owner. Pursuant to 4.6.9(F)(3)(d), Special Provisions, Val et Parking, the dimensions for valet and tandem parking spaces shall be a minimum of eight and one-half feet (8’6”) wide and sixteen feet (16’) deep with a maximum stacking of two (2) vehicles along w ith a drive aisle of twenty-four feet (24’). The proposal includes a 22’ wide drive aisle. In consideration of the criteria above, the waiver may be supported as the drive aisle reduction will not adversely affect the neighboring area in that it is permitting the provision of additional landscaping ; the provision of public facilities will not be impacted ; an unsafe situation should not be created in that the lot is designed in accordance with valet parking st andards and valet parking attendants will be utiliz ing the lot, as opposed to regular drivers inexperience d with smaller spaces; and, the waiver will not res ult in the grant of a special privilege in that it woul d considered under similar circumstances in providi ng valet parking on a small lot and associated with th e adaptive reuse of historically significant proper ties centrally located to the city’s downtown. Based on the above, positive findings c an be made with respect to the waiver request and decrease the driv e aisle width to 22’. Pursuant to 4.6.9(F)(3)(d), Special Provisions, Val et Parking, interior landscape areas required by Section 4.6.16 shall not be required if landscape r equirements which would otherwise have been installed on the interior of the parking lot are ev enly distributed along the perimeter of the parking area or facility and that a 10’ perimeter landscape buff er consisting of a hedge and trees thirty-feet (30’) on center be provided. The proposal provides a minimal landscape buffer around the perimeter which measures 3’ along the south, 6’4” and 1’6” along th e west, 2’6” along the north, and 6’4” along the east. In consideration of the criteria above, the justifi cation can be supported in that the size of the sit e, which has been further reduced by the required right of w ay dedication, limits the development potential and ability to provide the required amount of landscape buffering. While the reduction will impact the neighboring area moreso than if the requirement wer e met, in either case it is not likely to adversely affect the neighboring area; the provision of publi c facilities will not be impacted; the limited amou nt of landscaping will not create an unsafe situation; an d given the circumstances surrounding the entire development proposal, the granting of this waiver i s not considered a special privilege in that it wou ld also be supported under similar circumstances on ot her property for another applicant or owner. Based on the above, positive findings can be made with re spect to the waiver request and decrease the requir ed landscape buffer from 10’ to varying depths ranging from 1’6” to 6’4”, as depicted on the plans. REVIEW BY OTHERS The HPB considered the subject waiver requests conc urrently with the COA and Site Plan requests and recommended approval of each waiver on a vote of 6-0. RECOMMENDATION Approve the waiver to LDR Section 4.6.9(F)(3)(d), w hich requires a drive aisle width of 24’, by permitting a drive aisle width of 22’. Approve the waiver to LDR Section 4.6.9(F)(3)(i), w hich requires a perimeter landscape buffer of 10’, by permitting a landscape buffer varying from 1’6” to 6’4”, as indicated on the plan. 1 IN THE CITY COMMISSION CHAMBERS OF THE CITY OF DELRAY BEACH, FLORIDA ORDER OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA WAIVER REQUESTS FOR 104 SE 1ST AVENUE 1. These waiver requests came before the City Commission on December 6, 2011. 2. The Applicant and City staff presented documentary evidence and testimony to the City Commission pertaining to the two (2) waiver requests for 104 SE 1 st Avenue. All of the evidence is a part of the record in this case. Required findings are made in accordance with Subsection I. I. WAIVERS: Pursuant to LDR Section 2.4.7(B)(5), prior to grantin g 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 p ublic 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 ot her property for another applicant or owner. A. Waiver #1 to LDR Section 4.6.9(F)(3)(d): Special Provisions, Valet Parking, the dimensions for val et and tandem parking spaces shall be a minimum of eight and one-half feet (8’6”) wide and sixteen feet (16’) deep with a maximum stacking of two (2) vehicles along with a drive aisle of twenty-four feet (24’). The proposal includes a 22’wide drive aisle. Should the waiver to decrease the required twenty-f our foot (24’) drive aisle to twenty-two feet (22’) be granted? Yes _______ No _______ 2 B. Waiver #2 to LDR Section 4.6.9(F)(3)(i): Special Revisions, Valet Parking, interior landscape area s required by Section 4.6.16 shall not be required if landscape requi rements which would otherwise have been installed on the interior o f the parking lot are evenly distributed along the perimeter of the parking area or facility and that a 10’ perimeter landscape buffer consisting of a he dge and trees thirty feet (30’) on center be provided. The proposa l provides a minimal landscape buffer around the perimeter which measures thre e feet (3’) along the south, 6’4” and 1’6” along the west, 2’6” a long the north, and 6’4” along the east. Should the waiver to reduce the required ten foot (10’) perimeter landscape buffer to a varying amount of one foot, six inches (4’6”) to six foot four inches (6’4”) be granted? Yes _______ No _______ 3. The City Commission has applied the Comprehensive P lan and LDR requirements in existence at the time the original dev elopment 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 compete nt 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 r eports, testimony of experts and other competent witnesses supporting these findings. 5. Based on the entire record before it, the City Co mmission approves ___ denies ___ the waiver requests. 6. Based on the entire record before it, the City C ommission hereby adopts this Order this 6 th day of December, 2011, by a vote of _____ in favor and ____ opposed. 3 ________________________________ ATTEST: Nelson S. McDuffie, Mayor ________________________________ Chevelle Nubin, City Clerk MEMORANDUM TO:Mayor and City Commissioners FROM:CANDI N. JEFFERSON, SENIOR PLANNER MARK MCDONNELL, AICP, ASST. DIRECTOR OF PLANNING AN D ZONING THROUGH:CITY MANAGER DATE:November 30, 2011 SUBJECT:AGENDA ITEM 9.C. - REGULAR COMMISSION MEETING OF DECEMBER 6, 2011 WAIVER REQUESTS/BOSTON'S RESTAURANT - PHASE I ITEM BEFORE COMMISSION Consideration of two (2) waiver requests for Phase I of Boston’s Restaurant including a waiver to LDR Section 4.6.16(H)(3)(i) to allow 62 sq. ft. where 7 5 sq. ft. of plantable area is required for landsca pe islands, and to 4.6.16(H)(3)(j), to omit landscape islands where terminal landscape islands are requir ed in four locations. BACKGROUND Waiver Requests LDR Section 2.4.7(B)(5) Findings: Pursuant to LDR Section 2.4.7(B)(5), prior to grant ing a waiver, the approving body must make a finding that granting 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. WAIVER TO 75 SQ. FT. OF PLANTABLE AREA The proposed terminal landscape island located alon g Salina Avenue between the new valet parking spaces and the existing standard spaces does not me et the minimum seventy-five (75) square feet of plantable area required. Several other proposed isl ands do not appear to meet the minimum width and depth requirements as well. Pursuant to LDR Section 4.6.16(H)(3)(i), the required landscape island sha ll be no less than five feet (5’) wide by fifteen feet (15’) deep. The applicant has requested a waiver to this section of the Code. The waiver is analyzed in the following section. The applicant has provided the following justification statement regarding the wai ver request: “At the southernmost island along Salina, the City r equired a turning radius for fire apparatus which infringes into the end of the island, and the site ingress from Salina for the same reason. Recognize that we are limited in space and are trying to improve e xisting conditions with minimal impact to landscape and parking count." Pursuant to LDR Section 4.6.16(H)(3)(i), landscape islands shall contain a minimum of seventy-five (75) sq. ft. of plantable area typically with a min imum width of five (5) feet and length of fifteen (15) feet. The applicant has designed several landscape islands that either contain less than 75 sq. ft. of plantable area and/or do not meet the minimum width and depth requirements. A terminal landscape island near the southwest corner of the site remain s below standard at 62 sq. ft., where 75 sq. ft. is required. Another terminal landscape island abuttin g north of the valet parking rows located in the re ar of the existing restaurant does not meeting the min imum five foot (5’) width requirement. The dimensions and overall sq. ft. area of the landscap e island have not been provided and this is attache d as a condition of site plan approval. A waiver to this requirement is justifiable to allow the site to accommodate the maximum amount of parking feasible. Likewise, the CBD does not require any open space and the applicant has voluntarily provided 18 % open space. Given the constraints due to the lot size (1.17 acres), the site has reasonably accommod ated adequate landscaping on-site which will be a substantial improvement to the existing conditions. In turn, a reduction in plantable area for the applicable landscape islands does not adversely aff ect the neighboring areas or create an unsafe situation. Granting of the requested waiver will no t diminish the provision of public facilities or re sult in the grant of a special privilege. Accordingly, posi tive findings can be made in the reduction of the plantable area of landscape islands for Boston’s Re staurant with respect to LDR Section 2.4.7(B)(5). WAIVER TO TERMINAL LANDSCAPE ISLANDS Pursuant to LDR Section 4.6.16(H)(3)(j), all parkin g rows shall have a terminal landscape island on each end. The parking rows abutting the dumpster en closure area do not terminate with a landscape island. Likewise, the proposed valet parking adjace nt to the existing building is not terminated with landscape islands. A total of four (4) terminal lan dscape islands are missing at the following locatio ns: On the north edge of the parking row adjacent to th e dumpster enclosure. On the south edge of the parking row adjacent to th e dumpster enclosure. On the south edge of the parking rows adjacent to t he valet parking located in the rear of the existing restaurant. On the north edge of the parking rows adjacent to t he valet parking abutting the existing 38-space parking lot. The applicant has provided the following justificat ion statement regarding the waiver request: “The proposed plan provides the minimum negative imp act and the maximum benefit. This is the best possible scenario under the existing conditions and available space." A waiver to this requirement is justifiable to allo w the site to accommodate the maximum amount of parking feasible. Likewise, the CBD does not requir e any open space and the applicant has voluntarily provided 18% open space. Given the constraints due to the lot size (1.17 acres), the site has reasonab ly accommodated adequate landscaping on-site which will be a substantial improvement to the existing conditions. In turn, a reduction in terminal landsc ape islands does not to affect the neighboring area s or create an unsafe situation. Granting of the request ed waiver will not diminish the provision of public facilities or result in the grant of a special priv ilege. Accordingly, positive findings can be made i n the reduction of the required number of landscape islan ds for Boston’s Restaurant with respect to LDR Section 2.4.7(B)(5). REVIEW BY OTHERS The Site Plan Review and Appearance Board reviewed the two (2) waiver requests at their meeting of October 26, 2011 in conjunction with a Class II Sit e Plan Modification approval. The Board moved a recommendation of approval of both waivers on a una nimous vote of 4-0. A detailed description and analysis of the development proposal is contained w ithin the attached Site Plan Review and Appearance Board staff report of October 26, 2011. RECOMMENDATION By Separate Motions: 75 sq. ft. of Plantable Area Waiver Move approval of the request for a waiver to LDR Se ction 4.6.16(H)(3)(i), to reduce the minimum plantable area for landscape islands from 75 sq. ft . to 62 sq. ft., by adopting the findings of fact a nd law contained in the staff report, and finding that the request and approval thereof is consistent with th e Comprehensive Plan and meets criteria set forth in Section 2.4.7(B)(5) of the Land Development Regulations. Terminal Landscape Islands Waiver Move approval of the request for waiver to LDR Sect ion 4.6.16(H)(3)(j), to waive the requirement for terminal landscape islands in four locations, by ad opting the findings of fact and law contained in th e staff report, and finding that the request is consi stent with LDR Section 2.4.7(B)(5) of the Land Development Regulations. 1 IN THE CITY COMMISSION CHAMBERS OF THE CITY OF DELRAY BEACH, FLORIDA ORDER OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA WAIVER REQUESTS FOR BOSTON’S RESTAURANT, PHASE I 1. These waiver requests came before the City Commission on December 6, 2011. 2. The Applicant and City staff presented documentary evidence and testimony to the City Commission pertaining to the two (2) waiver requests in association with Boston’s Restaurant, Phase I. All of the evidence is a part of the record in this case. Required findings are made in accord ance with Subsection I. I. WAIVERS: Pursuant to LDR Section 2.4.7(B)(5), prior to grantin g 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 p ublic 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 ot her property for another applicant or owner. A. Waiver to LDR Section 4.6.16(H)(3)(i): The proposed terminal landscape island located along Sal ina Avenue between the new valet parking spaces and the existing sta ndard spaces does not meet the minimum seventy-five (75) square fee t of plantable area required. Several other proposed islands do not appear to meet the minimum width and depth requirements as well. Pursuan t to LDR Section 4.6.16(H)(3)(i), the required landscape island shall be no less than five feet (5’) wide by fifteen feet (15’) deep. The app licant has requested a waiver to this section of the code. The waiver is analy zed in the following section. The applicant has provided the following justi fication statement regarding the waiver request: “At the southernmost island along Salina, the City requ ired a turning radius for fire apparatus which infringes into the end of the island, and the site ingress from Salina for the same reason. Recognize that we are 2 limited in space and are trying to improve existing cond itions with minimal impact to landscape and parking count.” Pursuant to LDR Section 4.6.16(H)(3)(i), landscape islan ds shall contain a minimum of seventy-five (75) sq. ft. of plantable are a typically with a minimum width of five (5) feet wide and length of f ifteen (15) feet. The applicant has designed several landscape islands that eithe r contain less than 75 sq. ft. of plantable area and/or do not meet the minimum width and depth requirements. A terminal landscape island ne ar the southwest corner of the site remains below standard at 62 sq. ft., where 75 sq. ft. is required. Another terminal landscape island abutting n orth of the valet parking rows located in the rear of the existing restaur ant does not meet the minimum five foot (5’) width requirement. The dimensions and overall sq. ft. area of the landscape island have not been prov ided but are required as a condition of site plan approval. Should the waiver to allow a reduction in the seven ty-five foot (75’) required plantable area to sixty-two feet (62’) pla ntable area be granted? Yes _______ No _______ B. Waiver to LDR Section 4.4.16(H)(3)(j): Pursuant to LDR Section 4.6.16(H)(3)(j), all parking r ows shall have a terminal landscape island on each end. The parking rows abutting the dumpster enclosure area do not terminate with a landscap e island. Likewise, the proposed valet parking adjacent to the exi sting building is not terminated with landscape islands. A total of four (4) terminal landscape islands are missing at the following locations: • On the north edge of the parking row adjacent to the trash enclosure. • On the south edge of the parking row adjacent to the trash enclosure. • On the south edge of the parking rows adjacent to the valet parking located in rear of the existing restaurant. • On the north edge of the parking rows adjacent to the valet parking abutting the existing 38-space parking lot. The applicant has provided the following justification statement regarding the waiver request: “The proposed plan provides the minimum negative impact and the maximum benefit. This is the best possible scenario under the existing conditions and available space.” 3 Should a waiver omitting four (4) landscape islands in the parking rows abutting the dumpster enclosure and the rows abutti ng the valet parking stand be granted? Yes _______ No _______ 3. The City Commission has applied the Comprehensive P lan and LDR requirements in existence at the time the original dev elopment 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 compete nt 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 r eports, testimony of experts and other competent witnesses supporting these findings. 5. Based on the entire record before it, the City Co mmission approves ___ denies ___ the waiver requests. 6. Based on the entire record before it, the City C ommission hereby adopts this Order this 6 th day of December, 2011, by a vote of _____ in favor and ____ opposed. ________________________________ ATTEST: Nelson S. McDuffie, Mayor ________________________________ Chevelle Nubin, City Clerk MEMORANDUM TO:Mayor and City Commissioners FROM:CANDI N. JEFFERSON, SENIOR PLANNER MARK MCDONNELL, AICP, ASST. DIRECTOR OF PLANNING AN D ZONING THROUGH:CITY MANAGER DATE:November 30, 2011 SUBJECT:AGENDA ITEM 9.D. - REGULAR COMMISSION MEETING OF DECEMBER 6, 2011 WAIVER REQUESTS/BOSTON'S RESTAURANT - PHASE II ITEM BEFORE COMMISSION Consideration of three (3) waiver requests for Phas e 2 of Boston’s Restaurant including a waiver to LDR Section 4.6.9 (D)(3)(b), to allow 22’ where 24’ minimum driveway width is required, to LDR Section 4.4.13 (F)(1)(a), to allow a 14’ building h eight where 25’ is required, and to LDR Section 4.6 .9 (D)(3)(c)(1), to allow 27’ where 50’ stacking is re quired. BACKGROUND Waiver Requests LDR Section 2.4.7(B)(5) Findings: Pursuant to LDR Section 2.4.7(B)(5), prior to grant ing a waiver, the approving body must make a finding that granting 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. WAIVER TO 24 ’ MINIMUM DRIVEWAY WIDTH Pursuant to LDR Section 4.6.9 (D)(3)(b), the point of access to a street or alley shall not be less th an twenty-four feet (24') for a normal two-way private street or parking lot driveway aisle. A twenty-two foot (22’) drive aisle width is proposed from the s outhernmost driveway access from A1A. The applicant has provided the following justification statement regarding the waiver request: “In this case, we have a driveway that will have min imal traffic to and from a small parking area serving Boston’s restaurant and in fact will mostly serve as an eg ress since the parking will be controlled via a valet system which will enter the site through another access drive further north. Al so, there will be no back-out onto this drive thus mini mizing the potential for vehicular conflict. By allowing this reduced drive aisle – something th at the City has previously allowed on other project s – we will be able to have a three foot landscape area for foundation planting along the building, something we can’t do in only one foot if a twenty-four foot drive aisle is required." Pursuant to LDR Section 4.6.9 (D)(3)(b), the point of access to a street or alley shall not be less than 24' for a normal two-way private street or parking lot driveway aisle. A waiver to this requirement is justifiable to allow the site to accommodate the ma ximum amount of parking feasible. Given the constraints due to the lot size (1.17 acres), the s ite has had to maximize the provided parking on-site. In turn, a reduction to a twenty-two foot (22’) drive aisle width does not affect the neighboring a reas or create an unsafe situation. Granting of the request ed waiver will not diminish the provision of public facilities or result in the grant of a special priv ilege. Consequently, positive findings can be made in the reduction of the two-way drive aisle width from twe nty-four feet (24’) to twenty-two feet (22’) for Boston’s Restaurant with respect to LDR Section 2.4 .7(B)(5). WAIVER TO 25 ’ MINIMUM BUILDING HEIGHT Pursuant to LDR Section 4.4.13 (F)(1)(a), all propo sed structures must meet the minimum and maximum building height requirement of twenty-five feet (25’) and forty-eight feet (48’) respectively. The tallest existing structure meets the maximum 48’ height requirement at 27’2”. However, the shortest proposed structure at 14’0” does not meet the minimum 25’ height requirement. Consequently, it is also noted that th e proposed architectural elevations for the accesso ry structures do not calculate the mean building heigh t for the shortest elevations pursuant to LDR Secti on 4.3.4.J. The mean roof height must be identified for the shortest structures and this is attached as a condition of approval. The applicant has requested a waiver to address the deficiency in the proposed minimum height. The applicant has provided the following justificat ion statement regarding the waiver request: “The design criteria for this zoning district is an urban design concept to encourage downtown development linking the buildings together. In this case, our site lies at the end of a commercial zon e and adjacent to a residential zone. The buildings a re setback substantially from the street and serve primarily as a back drop for an outdoor venue. This is an opportunity for the town to have an outs ide restaurant opening to the beach that speaks to our village by the sea theme. We would appreciate your favorable consideration and approval as this overall project is a vast improvement to the previo us conditions of the site and provide a unique experience in Delray Beach.” The waiver is supportable due to the fact that the structures are for accessory use and are not a prim ary part of the restaurant establishment. Pursuant to L DR Section 4.4.13 (F)(1)(a), the overall height of buildings shall be a minimum of twenty-five feet (2 5’) and a maximum of forty-eight feet (48’) in height. Specifically, the waiver to LDR Section 4.4 .13 (F)(1)(a) to allow a minimum 14’ building instead of the requirement 25’ minimum height does not affect the neighboring area s, nor does it create an unsafe situation. In fact, it allows for a smoot her transition against adjacent RM (Multiple Family Residential) properties. Granting of the requested waiver will not diminish the provision of public facilities, and will not result in the granting of a special privilege. Consequently, positive finding s with respect to LDR Section 2.4.7(B)(5) can be made in t he reduction of the required 25’ minimum building height to 14’ for the proposed new accessory struct ures. WAIVER TO 50 ’ STACKING DISTANCE Pursuant to LDR Section 4.6.9(D)(3)(c)(1), the mini mum stacking distance shall be fifty feet (50’) for fifty-one (51) or more parking spaces. For the prop osed seventy-three (73) parking lot area, the applicant has proposed a twenty-seven feet (27’) stacking distance for two driveway entrances along Salina Avenue. A waiver has been requested to reduce the r equired stacking distance from fifty feet (50’) to twenty-seven (27’) along Salina Avenue. The applicant has provided the following justifica tion statement regarding the waiver request: “Our request is based on two primary issues. The fir st being that the only area where this is a concern is in the ingress/egress between the new and old parki ng area of the site to Salina Avenue, and two, that this area is not an ingress/egress that will be use d by the general public or customers. Our site is primarily controlled by a valet parking system and all of our customer vehicular access will be from A1A and thus not an issue at this location." Pursuant to 4.6.9(D)(3)(c)(1), the minimum stacking distance shall be fifty feet (50’) for fifty-one (51) or more parking spaces. A waiver to this requirement i s justifiable to allow the site to accommodate the maximum amount of parking feasible. Given the constraints due to the lot size (1.17 acres), the s ite has had to maximize the provided parking on-site. In tu rn, a reduction to twenty-seven feet (27’) of stacking does not affect the neighboring areas or create an unsafe situation. Granting of the requested waiver will not diminish the provision of public facilities or result in the grant of a special privilege. Consequ ently, positive findings can be made in the reduction of t he required stacking from fifty feet (50’) to twent y - seven feet (27’) for Boston’s Restaurant with respe ct to LDR Section 2.4.7(B)(5). REVIEW BY OTHERS The Site Plan Review and Appearance Board reviewed the three (3) waiver requests at their meeting of November 9, 2011 in conjunction with the Class V Si te Plan approval. The Board moved a recommendation of approval of all three (3) waivers on a unanimous vote of 5-0. A detailed description and analysis of the development proposal is contain ed within the attached Site Plan Review and Appearance Board staff report of November 9, 2011. RECOMMENDATION By Separate Motions: 24 ’ Driveway Width Waiver Move approval of the request for a waiver to LDR Se ction 4.6.9 (D)(3)(b), to reduce the minimum pavement width of the interior drive aisle from 24’ to 22’, by adopting the findings of fact and law contained in the staff report, and finding that the request and approval thereof is consistent with th e Comprehensive Plan and meets criteria set forth in Section 2.4.7(B)(5) of the Land Development Regulations. 25 ’ Minimum Building Height Waiver Move approval of the request for a waiver to LDR Section 4.4.13(F)(1)(a), to reduce the minimum building height from twenty-five feet (25’) to four teen feet (14’), by adopting the findings of fact and law contained in the staff report, and finding that the request is consistent with LDR Section 2.4.7(B )(5) of the Land Development Regulations. 50 ’ Stacking Distance Waiver Move approval of the request for a waiver to LDR Se ction 4.6.9(D)(3)(c)(1), to reduce minimum stacking distance from fifty feet (50’) to twenty-s even feet (27’), by adopting the findings of fact and law contained in the staff report, and finding that the request is consistent with LDR Section 2.4.7(B )(5) of the Land Development Regulations. 1 IN THE CITY COMMISSION CHAMBERS OF THE CITY OF DELRAY BEACH, FLORIDA ORDER OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA WAIVER REQUESTS FOR BOSTON’S RESTAURANT, PHASE II 1. These waiver requests came before the City Commission on December 6, 2011. 2. The Applicant and City staff presented documentary evidence and testimony to the City Commission pertaining to the thr ee (3) waiver requests in association with Boston’s Restaurant, Phase II. All of th e evidence is a part of the record in this case. Required findings are made in accord ance with Subsection I. I. WAIVERS: Pursuant to LDR Section 2.4.7(B)(5), prior to grantin g 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 p ublic 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 ot her property for another applicant or owner. A. Waiver #1 to LDR Section 4.6.9(D)(3)(b): Pursuant to LDR Section 4.6.9(D)(3)(b), requires that the point of access to a street or alley shall not be less than twenty-four feet (24’) for a normal two-way private street or parking lot driveway aisle. A twenty-two foot (22’) drive aisle width is proposed from the southernmo st driveway access from A1A. The applicant has provided the following j ustification statement regarding the waiver request: “In this case, we have a driveway that will have minimal t raffic to and from a small parking area serving Boston’s restaurant and in fa ct will mostly serve as an egress since the parking will be controlled via a valet system which will enter the site through another access drive fur ther north. Also, there will be no back-out onto this drive thus minimizin g the potential for vehicular conflict. 2 By allowing this reduced drive aisle – something that the City has previously allowed on other projects – we will be able t o have a three foot landscape area for foundation planting along the buil ding, something we can’t do in only one foot if a twenty-four foot drive a isle is required.” Should the waiver to reduce the drive aisle from tw enty-four feet (24’) to twenty-two feet (22’) be granted? Yes _______ No _______ B. Waiver #2 to LDR Section 4.4.13(F)(1)(a): Pursuant to LDR Section 4.4.13(F)(1)(a), all proposed structures must meet the minimum and maximum building height requir ement of twenty- five feet (25’) and forty-eight feet (48’) respective ly. The tallest existing structure meets the maximum 48’ height requirement at 27’2”. However, the shortest proposed structure does not meet the minimum 25’ height requirement at 14’0”. Consequently, it is also noted that the proposed architectural elevations for the accessory structures do not calculate the mean building height for the shortest structures and thi s is attached as a condition of approval. The applicant has requested a w aiver to address the deficiency in the proposed minimum height. The ap plicant has provided the following justification statement regardi ng the waiver request: “The design criteria for this zoning district is an urban design concept to encourage downtown development linking the buildings to gether. In this case, our site lies at the end of a commercial zone and a djacent to a residential zone. The buildings are setback substantially from the street and serve primarily as a back drop for an outdoor venue. This is an opportunity for the town to have an outside r estaurant opening to the beach that speaks to our village by the sea theme. We would appreciate your favorable consideration and approval as th is overall project is a vast improvement to the previous conditions of the site and provide a unique experience in Delray Beach.” Should the waiver to reduce the minimum building he ight from twenty-five feet (25’) to fourteen feet (14’) be granted? Yes _______ No _______ C. Waiver #3 to LDR Section 4.6.9(D)(3)(c)(1): Pursuant to LDR Section 4.6.9(D)(3)(c)(1), the minimum stacking distance shall be fifty feet (50’) for fifty-one (51) or more parking spaces. For the proposed seventy-three (73) parking space area, the appl icant has 3 proposed a twenty-seven foot (27’) stacking distance for t wo driveway entrances along Salina Avenue. A waiver has been requ ested to reduce the required stacking distance from fifty feet (50’) to twenty-seven feet (27’) along Salina Avenue. The applicant has provided the following justification statement regarding the waiver request: “Our request is based on two primary issues. The first bei ng that the only area where this is a concern is in the ingress/egress betwe en the new and old parking area of the site to Salina Avenue, and two , that this area is not an ingress/egress that will be used by the general publi c or customers. Our site is primarily controlled by a valet parking system an d all of our customer vehicular access will be from A1A and thus not an i ssue at this location.” Should the waiver to reduce the stacking distance f rom fifty feet (50’) to twenty-seven feet (27’) be granted? Yes _______ No _______ 3. The City Commission has applied the Comprehensive P lan and LDR requirements in existence at the time the original dev elopment 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 compete nt 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 r eports, testimony of experts and other competent witnesses supporting these findings. 5. Based on the entire record before it, the City Co mmission approves ___ denies ___ the waiver requests. 6. Based on the entire record before it, the City C ommission hereby adopts this Order this 6 th day of December, 2011, by a vote of _____ in favor and ____ opposed. 4 ________________________________ ATTEST: Nelson S. McDuffie, Mayor ________________________________ Chevelle Nubin, City Clerk MEMORANDUM TO:Mayor and City Commissioners FROM:Scott Aronson, Parking Management Specialist Richard C. Hasko, PE, Director of Environmental Ser vices THROUGH:David T. Harden, City Manager DATE:December 2, 2011 SUBJECT:AGENDA ITEM 9.E. - REGULAR COMMISSION MEETING OF DECEMBER 6, 2011 REVOCATION OF VALET PARKING LICENSE AGREEMENT WITH CUGINI GRILLE ITEM BEFORE COMMISSION The item before the City Commission is that of revo king a Valet Parking License Agreement, held by Cugini Grille, on the south side of the 200 block o f East Atlantic Avenue. BACKGROUND The valet queue was originally assigned to Ron Rada baugh, owner of Dakotah 624. In 2004, the restaurant was sold to Joe Gattelaro, and changed t o Cugini Grille, which assumed the Valet Parking License Agreement for the valet queue, upon executi on of a consent of assignment through the City. Ownership of the restaurant changed again in 2010, to 270 E. Atlantic Avenue Delray Beach, LLC d/b/a Cugini Grille, again, executing a consent of assignment form through the City. In early 2011, the valet queue operator increased r ates from $10.00 to $15.00 per vehicle. It is noted this price was for all customers, including those patron izing the restaurant. In March 2011, Mr. David Manero, owner of Vic & Ang elo's and The Office, addressed the Parking Management Advisory Board, (PMAB), requesting to as sume the parking license agreement held by Cugini Grille under the guise that the queue was to o expensive and no validation was offered in additi on to inappropriate behavior by the valet staff report ed by customers. At that time, Staff's did not supp ort the request as Cugini Grille had not violated the t erms of agreement and complaints to Delray Beach staff were consistent with parking operations. This pricing issue, (another valet followed suit wi th an exorbitant $20 for non validated customers), was the catalyst for the modifications to the agreement s approved in August, 2011, capping the base price of parking at $10.00, requiring validation programs wi th neighboring businesses, etc. Near the end of the 2011 “busy season”, (May/June), Staff was advised that Cugini Grille wou ld be closing for approximately 60 days, over the summer, to complete renovations. While various unconfirmed rumors circulated regarding the status of the restaurant, it remains closed with the same valet operator. Staff allowed the operator to conti nue managing the queue, during the renovation, on t he good faith assertion that the restaurant would be r eopening, by the end of summer, under the same ownership. In early November, Staff confirmed that the restaurant was for sale, and a transaction was scheduled for closing. As a courtesy, Staff vis ited the queue, advising the operator that the queu e could no longer operate as it was, and the item was going to the PMAB to recommend the queue be assigned to Vic & Angelo's. On November 17, while compiling the agenda packet f or PMAB, staff received a call from the owner/manager of Cugini inquiring why the valet ope rator was told the queue was being transferred. Upon Staff’s explanation Mr. Krevoy, of Cugini Grille, advised that the sale fell through, and they will be resuming operation of the restaurant and wanted to maintain operation of the valet queue. The two parties addressed the PMAB at its November 22, 2011 meeting. The lack of communication from Cugini Grille regard ing the delayed renovations and potential sale causes concern. Furthermore, the restaurant wi ll remain closed, anticipating renovations to be completed, in January, 2012. Staff recommends cancellation of the valet license agreement with Cugini in accordance with Section 10 of the agreement, allowing for revocation of the agreement, with or without cause, at any time, effective upon the mailing of notice. REVIEW BY OTHERS The Parking Management Advisory Board, at its meeti ng of November 22, 2011, after hearing both parties, recommended approval to transfer the valet queue parking license agreement to Mr. Manero, (affiliated with Vic & Angelo's), in an 8-2 vote, (Kornblau & Morse dissenting), which result s in the revocation of the Cugini Grille agreement. RECOMMENDATION By motion, approve revocation of the Cugini Grille Valet Parking License Agreement, on the south side, of the 200 block, of East Atlantic Avenue. VALET SE 2 N D A V E E AT LANTIC A VE NE 2 N D AV E RA I L R O A D A V E N City Of Delray Beach Environmental Services Department Engineering/GIS MEMORANDUM TO:Mayor and City Commissioners FROM:Scott Aronson, Parking Management Specialist Richard Hasko, Director of Environmental Services DATE:November 29, 2011 SUBJECT:AGENDA ITEM 9.E.1 - REGULAR COMMISSION MEETING OF DECEMBER 6, 2011 APPROVAL OF A PARKING LICENSE AGREEMENT WITH VIC & ANGELO'S ITEM BEFORE COMMISSION Approval of a valet parking license agreement with Vic & Angelo's, for the valet parking queue, on the south side of the 200 block of East Atlantic Avenue , replacing Cugini Grille as the valet licensee. BACKGROUND In March, 2011, David Manero, owner of Vic & Angelo 's, addressed the Parking Management Advisory Board, (PMAB), requesting transfer of the Valet Par king Agreement to Vic & Angelo's. In April, Mr. Manero made a formal request for the transfer. The Board, in concurrence with Staff, denied the reques t as the operator was in compliance with the agreemen t. It was stated that Staff was in the process of modifying the agreements to address pricing, val idation programs, ADA requirements, etc. In conjuction with the other item on the December 1 2 agenda to revoke the valet license agreement for Cugini Grile, Staff recommends approval of the vale t license agreement with Vic & Angelo's. REVIEW BY OTHERS The Parking Management Advisory Board, at its meeti ng of November 22, 2011, recommended approval to transfer the valet queue parking licens e agreement to Mr. Manero, (affiliated with Vic & Angelo's), in an 8-2 vote, (Kornblau & Morse dissen ting). RECOMMENDATION By motion, approve the Valet Parking License Agreem ent, on the south side of the 200 block of East Atlantic Avenue with Vic & Angelo's to replace Cugi ni Grille as the queue licensee. PARKING LICENSE AGREEMENT THIS AGREEMENT (“The Agreement”) is made this ___ day of __________, 201_, by and between the CITY OF DELRAY BEACH , a Florida Municipal Corporation (the “CITY ”), and Vic & Angelo’s a Florida corporation ("LICENSEE "). WITNESSETH: WHEREAS , LICENSEE has requested permission to use a certain number of public parking spaces along Atlantic Avenue and certain side streets for valet parking queues; and WHEREAS , in order to use the parking spaces, the CITY requires that LICENSEE enter into this nonexclusive License Agreement. NOW THEREFORE , in consideration of the sum of Ten Dollars ($10.00), the mutual covenants and conditions contained in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowl edged, the parties hereby agree as follows: 1. Incorporation of Recitals . The parties hereby represent and warrant that the above recitals are accurate and correct and hereby incorporate them in this Agreement. 2. Parking Queues . The CITY agrees to allow LICENSEE the nonexclusive use of six (6) parking spaces located south side of 200 Block of East Atlantic Avenue for valet parking queues. The parking spaces are to be used for valet parking queues daily b etween the hours of 5:00 p.m. to 2:00 a.m. on Mondays through Sundays (7) days per week). LICENSEE acknowledges that the valet parking queues may be unavailable for use during certain specia l events from time to time (as determined in the CITY's sole discretion) and during the special events, the license will not be valid. It is also understood by the terms of this Agreement that t he valet queue location may from time to time be relocated by the CITY in its sole discretion after providing thirty (30) days' written notice to LICENSEE . The LICENSEE and or the Valet shall not restrict the use of the Valet Queues to only persons using the LICENSEE’S business, but the valet queue shall be open to anyone wanting to use the valet service offered by LICENSEE . The City Manager or his designee(s), shall enforce the provisions of this agreement, including the location, time, days of the valet service, parking limitations and requirements, and complianc e with all applicable laws and ordinances. When required by law, the enforcement shall be accompli shed through personnel authorized by law to enforce the law. 3. Parking Locations/Agreements . LICENSEE agrees that LICENSEE and/or its employees will not park any cars in CITY owned on-street or off-street parking spaces. LICENSEE further agrees that LICENSEE will provide the CITY with current written assurances and/or a lease agreement(s) for use of a private parking lot(s). The priva te lot(s) must also comply with minimum City codes for a parking lot(s). LICENSEE shall also provide the CITY with a copy of its current valet agreements, and a copy of its current insurance certificate as set forth in Exhibit A. LICENSEE will ensure that the valet service is operated in a manner tha t will not result in cars stacking on and/or blocking the travel ways of any alleyway, public street or parking lot. These assurances and agreements must be provided upon execution of this License Agree ment when there is a change in any agreement referred to herein or upon the request of the CITY . Failure to comply with these conditions will be a basis for termination of this License Agreement . 4. Payment fo r Parking Queu e Spaces . LICENSEE agrees to pay the CITY One Hundred dollars ($100.00) per month, per parking queue space utilized by the 10th of each month. A late fee of 5% will be charged after this date. If more than one License Agreement is issued for the queues, the fee will be shared proportionate ly. 5. Maximum Fe e Permitted. At no time shall valet parking fees exceed ten dollars, ($10.00). An extended stay fee in the amount of $5.00 may be assessed to ve hicles parked in excess of four (4) hours, west of the intracoastal waterw ay and in excess of two (2) hours east of intracoastal waterway. Valet prices must be prom inently displayed on valet stand and signage. The base fee for validated customers shall be 50 % of t he prevailing rate, not to exceed five dollars, ($5.00). Extended stay fees are excluded from validation discounts. 6. Validation Programs . Valets shall provide validation programs with neighboring businesses in one of or combination of the following: a) Donation o f Spaces: A neighboring business contracts the use of parking spaces, in reasonable proximity of the valet queue, for use by the valet. Insurance costs for the spaces provided shall be the responsibility of the entity providing same. b) Financial Donation : Neighboring businesses contribute towards the total expense of the City owned valet queue spaces and private parking lot(s), registered with the City in accordance with the license agreement, in exchange for valida tion of customer’s vehicles. In no case shall a contribution exceed the cost of equal expens e among all parties contributing to the queue (i.e. License holder plus one neighboring busi ness equals a contribution no greater than 50 %. License holder plus two neighboring businesse s, contribution equals no greater that 33% each) c) Coupon Program: License holder shall o ffer the sale of coupons to neighboring businesses wishing to provide validated parking to customers. 7. Signage . The CITY agrees to post the valet parking queue spaces with valet parki ng times and days authorized. Sandwich board signs may not be used to advertise the valet service. Advertising signs will be allowed as prescribed by the C ity's Manager or his designee. 7 a). Pricing Display : All displayed pricing must be no less than three inches (3”) in height in the same font, color and consistency of associated lettering. 8. Valet Service; Valet Equipment . The LICENSEE'S operator may for the storage of keys install a moveable, temporary, valet desk on the sidewalk, eithe r public or private, during the hours of valet service so long as the desk does not impede the pedestrian flow. 9. Term and Renewal . This Agreement shall automatically renew, for accounts in good standing, on March 31 st each year if the City Manager determines, in his sole discre tion, that the renewal is in the best interests of the CITY . The City Manager may add additional provisions to this agreement upon renewal, including but not limited to, the requ irement to use an off-duty police officer during the time and dates the City Manager deem s advisable. Accounts in arrears or unable to provide valid lease(s) and insurance at the time of re newal may be suspended without further notice until required payment or information is received. 10. Revocable License . This Agreement is only a nonexclusive License Agreement and may be revoked by the CITY at anytime with or without cause during the initial term or any r enewals thereof upon providing written notice via U.S. Mail to LICENSEE. The revocation shall be effective when mailed. LICENSEE may cancel the agreement by providing written notice of cancellation no less than 30 days prior to cancellation. 11. Compliance wit h Laws . LICENSEE agrees to comply and adhere to all state laws and local ordinances regarding parking that exist or as amended fr om time to time. LICENSEE further acknowledges that due to the high traffic in this area, double parking unattended vehicles will not be permitted. 11 a) ADA Compliant Parking : LICENSEE acknowledges that handicapped parking spaces, in leased parking lots, are subject to statutory regulati on and may only be used for the parking of vehicles with valid ADA compliant license plate or hanging placard issued by any state. Direct access must be provided for vehicles unable to be operated by valet attendants, or customer needing a safe area to unload passengers with disabilities. Reg ular valet parking fees apply. 12. Notice . Notices required to be provided pursuant to this Agreement shall be sent to the following addresses: To CITY: David T. Harden, City Manager 100 N.W. 1st Avenue Delray Beach, Florida 33444 To LICENSEE: ________________________ _________________________ _________________________ _________________________ 13. Insurance . LICENSEE agrees to provide the CITY insurance for the valet service in the amounts and under the conditions prescribed in Exhibit A which shall a t all times remain current. The City of Delray Beach shall be named an additional insured. 14. Indemnification . In consideration of the payment of Ten Dollars ($10.00), receipt of which is hereby acknowledged, LICENSEE shall protect, defend, indemnify and hold harmless the CITY from and against any and all claims, suits, actions, damages and/or cause s of action arising during the Term of this Lease for any personal injury, loss of li fe and/or damage to property sustained in or about the parking spaces/queues by reason or as a result of the use and occupancy of the parking spaces/queues by LICENSEE , its agents, employees, licensees, invitees, and members of the public generally, and from and against any orders, judgments, and/or decrees which may be entered thereon, and from and against all costs, attorney fees, expenses and liabilities incurred in and about the defense of any such claim. In the event the CITY shall be made a party to any litigation commenced against LICENSEE or by LICENSEE against any third party, then the LICENSEE shall protect, defend, indemnify and hold the CITY harmless and pay all costs and attorney's fees incurred by the CITY in connection with such litigation, and any appeals thereof. 15. Third Parties . Nothing in this Agreement, whether express or implied, is intended to confer any rights or remedies under or by reason of this Agreement up on any person other than the parties hereto and their respective heirs, succes sors, legal representatives, and permitted assigns, nor is anything in this Ag reement intended to relieve or discharge the obligation or liability of any third persons to any party to this Agreement, nor shall any provision thereof give any third person any right of subrogation or action over or against any party to this Agreement. 16. Penalties for Violations/Termination . Penalties will be imposed upon the LICENSEE for: (1) Valet parking of cars in either on-street or off-street public parking spaces; and/or (2) Valet parking of cars in the designated parking queues; and/or (3) Expanding the designated parking queues area. The penalty schedule for the above violations is as follows: 1st violation – warning 2nd violation - $200 3rd violation - $500 4th violation - Termination of License Agreement Notices of violation will be written by a Police Department repres entative and will be sent to the LICENSEE with a copy to the City Manager. Failure to make payment within thirty (30) days of receipt of the notice will result in termination of the agre ement. LICENSEE acknowledges, however, notwithstanding the foregoing that the CITY may terminate this nonexclusive License Agreement without cause or f or cause. LICENSEE will at all times comply with the City's policy/procedure for use of publi c parking spaces/queues which shall change from time to time subject to the sole discretion of the City . 17. Taxes . LICENSEE shall pay and comply with all laws regarding taxes, levies, assessments, fees and charges, including, but not limited to gross recei pts, taxes, use taxes, property taxes, and sales taxes that may be imposed. 18. Assignment. This Agreement shall not be transferred or assigned without the express written consent of the CITY , which the CITY may withhold grants in its sole discretion. 19. Further Assurances . The parties shall from time to time execute and deliver such other and further instruments and documents and do all matters and things which may be convenient or necessary to more effectively and completely carry out the i ntent of this Agreement. 20. Binding Effect . All of the terms and provisions of this Agreement shall be binding upon, inure to the benefit of, and be enforceable by, the parties her eto and their respective heirs, successors, legal representatives, and permitte d assigns. 21. Entire Agreement . This Agreement shall constitute the entire agreement of t he parties with respect to the subject matter of it. All prior understa ndings and agreements between the parties with respect to such matters are merged into this Agreement, whic h alone fully and completely expresses their understanding. 22. Amendments . This Agreement may not be amended, modified, altered, or charged in any respect, except by a further agreement in writing duly executed by eac h of the parties hereto. IN WITNESS WHEREOF , the parties hereto have caused this Agreement to be duly executed on their behalf this _____ day of __________, 201_. THE CITY OF DELRAY BEACH , ATTEST: a Florida Municipal Corporation _______________________________ By:_______________________________ City Clerk Nelson S. McDuffie Approved as to form: _______________________________ City Attorney LICENSEE By:______________________________ (CORPORATE SEAL) Name Printed:_____________________ Title:_____________________________ STATE OF ________________ COUNTY OF ______________ The foregoing instrument was acknowledged before me this _____ day of ___________, 201_, by ____________________________, as _________________________ (name of officer or agent, title of officer or agent), of _________________________________ (name of corporation acknowledging), a ________________________(state or place of incorporation) corporation, on behalf of the corporation. He/She is personally known to me or has produced _______________________ (type of identification) as identification. _____________________________ Signature of Notary Public – State of Florida EXHIBIT A INSURANCE REQUIREMENTS FORM 1 Workers' Compensation per the Statutory limits of the State of Florida to inc lude Employer's Liability Insurance with limits of at least $100,000/$500,000/$100,000. 2 Garage Liability Insurance of at least $1,000,000 combined single limits pe r occurrence to protect the City against all risks of injury to persons (including deat h) or damage to property wherever located resulting from any action or operation under the contract or in connection with the work. This policy is to provide coverage for premises /operations including auto liability, independent contractors, broad form contractual l iability, products/completed operations. 3 Garage Keepers Insurance with limits of no less than $60,000 per auto, with an annual aggregate of $500,000. 4 Automobile Liability of at least $300,000 combined single limits per oc currence for owned/non-owned/hired automobiles connected with the business. 5 The City of Delray Beach and PRIVATE LOT OWNERS must be named as additional insured on the liability policies; and it must be stated on the certifi cate. 6 Thirty (30) days written cancellation notice required. 7 Best's guide rating B+, VIII or better, latest edition. VALET SE 2 N D A V E E AT LANTIC A VE NE 2 N D AV E RA I L R O A D A V E N City Of Delray Beach Environmental Services Department Engineering/GIS 270 East Atlantic Avenue Delray Beach, LLC d /b /a Cugini Grill & Martini Bar 270 East Atlantic Avenue Delray Beach, FL 33444 718- 450 -2562 MODERNAUT03525 @aol.com Mayor Nelson S. McDuffie Vice Mayor Angeleta Gray Deputy Mayor Thomas Carney Commissioner Adam Frankel Commissioner Jay Alperin PRESENTATION OF FACTS ON BEHALF OF CUGINI GRILLE VALET PARKING AGREEMENT Commissioners: Based upon the limited time we were given to prepare and retain legal counsel, we are asking the City of Delray to adjourn the vote being presented tonight for the revocation of the valet parking license of Cugini Grille. Based upon reviewing the current parking agreement, it does not state anywhere that "A restaurant that holds a valet license can not close for renovations, nor is there a time frame given for how long they can be closed if they do renovate." Since 2010, 1 feel we provide the general public the best service possible... we have a average time of 3 mins from the time the customers key is released to the valet runner till their car arrives to the valet queue. Our parking lot is 200 yards from the valet queue... NO ONE has a parking lot closer at any public valet queue then we do. The lot being proposed to store valet customer's cars was denied by the PMAB on March 22, 2011. We have parked over 10,000 cars with the average of 2 people per car in the last 2 years. With interaction of 40,000 people, there have been only two (2) complaints filed with the restaurant that wants to operate the valet queue. We have zero claims against our insurance policy for damages.. We have zero claims to theft or damages to a vehicle with the Delray Police department... We assist the police as well as having the police assist us from having people from driving intoxicated... If someone isn't able to drive, we offer them cab rides and give free overnight parking.... We provide onsite security in our lot to make sure all customers' vehicles are safe while in our possession. We been the VICTIMS of numerous attacks on our character and reputation by individuals that are using appointed, not elected positions to better themselves and special interests within the City of Delray Beach. Please take the time to review the facts that we are about to present to the City Commission. We feel the Parking Management Advisory Board is using unethical and immoral practices in making decisions and advising the City of Delray Beach in all fairness. BACKROUND INFORMATION: On June 29, 2011, at a meeting in the Environmental Services Office, we stated to the city that we would be closing for renovations to be made to the restaurant. The city and members of the PMAB had no objection and understood going into the slow season, it would be the best time to do so. Since we closed for renovations, and paid rent, insurance, utilities, and taxes, the valet has operated with zero issues, problems or complaints. The Valet is designed to serve the public, not retail businesses or restaurants and has done so since June 29, 2011. Other restaurants in the past were permitted to do so, and permission was even granted to the Blue Fish restaurant valet to operate for seven months while the restaurant was CLOSED, with no ownership. Without any written notice or contact from Scott Aronson via email, regular or certified mail, we found that there was a meeting on November 22, 2011 with the PMAB with regards to reassigning the valet to another restaurant. We were told we could attend, but prior to the meeting, Mr. Aronson has already told the restaurant interested in the valet queue that he was reassigning it and recommending to the PMAB to vote the same. So without notice, or given the right to defend ourselves, we attended the meeting. Just like the meeting of December 6, 2011, we were never notified that we were on the agenda. The revocation of our license according to Scott Aronson and the PMAB is that we have taken too long to renovate, and the rumors that were spread amongst our city was that we were out of business. So with zero complaints, rumors, and personal vendettas. We ask the city to reconsider and not revoke the valet license agreement we currently hold.. We have not breach our parking agreement with the city, remain current and in good standing with our landlord, insurances, and city licensing fees. We would now like to take the time to show you the finding of our facts and how we are being targeted against individuals that have been appointed to positions by the city, and are using their power as a personal tool to better themselves. We also question the moral and ethical code that certain lawyers abide by, but are so respected by the elected officials and citizens of Delray Beach. PARKING ADVISORY MANAGEMENT BOARD Board Members Member William Morse Herman Stevens Fran Marincola Mark Krall Margie Walden Cecelia Boone Alan Kornblau Peggy Murphy John Gergen Bruce Gimmy Brian Rosen In a meeting of 10/25/2011, Francis "Fran" Marincola removed himself from voting on the valet space for Caffe Luna Rosa, of which he is the owner of, to vote allow pick up space for said queue, due to conflict of interest. At the 11/22/2011 meeting, Mr. Marincola didn't remove himself from the meeting nor did fellow board members John Gergen and Cecelia Boone all of which had conflict of interest. Mr. Marincola should have not spoke or voted based on the following facts: FACT #1 Prior to the meeting of 11/22/2011, Mr. Marincola and Mr. Gergen, co- owners of Caffe Luna Rosa entered into a parking agreement with BurgerFi, a restaurant that David Manero has financial interest in for sharing a parking lot for the Caffe Luna Rosa valet queue. Mr Manero also is requesting the valet queue now licensed to Cugini Grille. FACT #1 -A Mr. Marincola "Plaintiff' is currently involved in a lawsuit for a monies owed to him in a defunct business in Deerfield Beach, FI against Joseph Shamy " Defendant" in Palm Beach County Court, case ID# 502009CA028591XXXXMB. According to public records, Mr. Shamy is the current daily operations manager of a restaurant in Delray Beach called Paddy McGee's (FACT #1 B). Please note that Mr. Shamy is business partners with one of the managing members of Cugini Grille in the restaurant Paddy McGee's. We are most certain that Mr. Marincola's judgment and opinions voiced at the meeting were fair and honest. FACT #1 -C. FACT #11 AND FACT #12 Cecelia Boone removed herself from a meeting on 3/22/2011 due to the fact she represented the owners of Solita in renting space from a client and were looking to obtain a valet queue for said space. Ms. Boone failed to notify the PMAB that she was the broker of record for individuals who were looking to buy Cugini Grille. Ms. Boone stood to earn $45,000.00 on the sale of Cugini Grille. Please review Fact# 1C that Ms. Boone's emails were never answered, nor was a deal ever finalized for Cugini Grille and she was basing decisions on "rumors" and "3`d party individuals" information. . Ms. Boone mentioned that the parking company that charged an enormous amount for valet service is Sunshine State Parking, who was working with Mr. Weiner at the time was representing Tramonti. FACT #1 D Michael Weiner, a local well respected lawyer also failed to disclose to the PMAB that he represented the individuals looking to purchase Cugini Grille, see FACT #1 D (Letter of Intent) while representing David Manero and Vic and Angelo's who are looking to have the valet license assigned to them. FACT # 2 MEETING OF 9/27/2011 VII. NON - AGENDA ITEMS: A. Comments by Board Members Mr. Morse spoke about a valet queue being in operation by the restaurant formerly known as Cugini's. Mr. Aronson spoke about a building permit being issued for renovations. The valet service has reduced their cost to $10.00. In the past, there have been valet queues that have operated during construction of the restaurant. As Mr. Aronson stated above, "valet queues that have operated during construction of the restaurant." FACT #3 This non- agenda item was never addressed. FACT #4 MEETING OF 5/24/2011 B. Discussion on Rules to be followed — Brian Shutt City Attorney, Brian Shutt, explained that the quasi—judicial rules should be reviewed at each meeting and the public allowed to speak along with cross examination if appropriate. Any files available should be entered into the record. He also noted that ex -parte communication should be disclosed as well. In the meeting of 11/22/2011, Mr. Marincola stated he would not entertain any public comments and that he had a dinner date with his wife at 8:00p.m. and needed to be home so we need to speed this meeting along. FACT #5 Mr. Aronson stated that Ameristar has been contracted for $14.55 per hour. NEVER WENT OUT TO BID TO ANY OTHER VALET COMPANIES. FACT #6 MEETING OF 5/24/2011 These prices have held steady until this past season when one valet queue increased to $15.00. A neighboring queue has prices of $10.00 with validation and $20.00 if not validated by the listed restaurants. THE NEIGHBORING QUE WAS PRIME... THEY WERE HIGHER AND THE PMAB KNEW IT FACT #7 MEETING OF 4/24/2011 Mr. Miracola stated that two applicants made requests to obtain the valet queue but depended on the valet company for parking. He does not feel that requests should be considered from applicants that have not obtained parking spaces. Mr. Marincola feels that the parking lot agreements should be managed by the restaurant instead of the name of the valet company. In meeting of 11/22/2011, Mr. Marincola said private valet companies can manage queues. FACT #8 MEETING OF 3/22/2011 Mr. Weiner state spoke of the travel routes stating that his location is only fifty feet away where Global Parking Services is several blocks away. Delray Parking Systems is almost one thousand feet away and workers are required to travel over railroad tracks, thus increasing liability. Golf carts will also be used to cross over the tracks. Mr. Weiner feels that granting the queue to Tramonti's will free public parking resources and the business owner will take responsibility for the parking queue. There is no speculation as to the success or failure of the restaurant and the lot has already been secured. There are no safety issues, the lot is fifty feet away and is not required to cross railroad tracks. Mr. Weiner said the same lot is now okay to use due to the fact he is representing Vic and Angelo's which is planning on using Global Parking Services. FACT #9 Mr. Weiner stated that the fact that two applications were considered that were made by valet parking companies was viewed by him as a possible change of the City's policy. Mr Weiner is now representing valet companies and feels they should not be owned of managed by restaurants FACT #10 MEETING OF 3/22/2011 Mr. Marincola stated that the price for parking is more feasible if the valet queue is operated by the restaurant. Valet companies are in business to make money and may raise the cost of parking He went on to speak about new pricing, sharing of valet queues and a validation process included In the meeting of 11/22/2011, Mr.Marincola voted to have a private valet company to operate the valet queue for Vic and Angelo's, and voted against Cugini Grille that employs its own valet employees and doesn't use a outside company. FACT #13 and _# 14 MEETING OF 3/22/2011 Ms. Murphy stated that Tramonti's is close in proximity to the parking spaces. However, she is not in favor of the route that will be used. Global Parking Systems should not utilize the alleyway on their return trip because of the traffic in that area. This was never discussed at the meeting of 11/22/2011 Mr. Aronson advised that Mr. Manero has provided a formal request to have the City terminate its Valet Parking License Agreement with Cugini Grill and transfer the agreement to him for Vic Angelo's Restaurant. There has been discussion about pricing which will be addressed by the City and should not become a negative impact to Delray Beach. Mandatory validation between neighboring businesses will be addressed in the new agreement. Cugini Grill has met all the requirements of the agreement and has been cooperative in correcting minor operational issues when called upon to do so and have offered validation programs to businesses several times and have received no response from any businesses. FACT #15 and # 16 MEETING OF 3/22/2011 Mr. Marincola stated that $15.00 for valet service is distasteful. However, he is in agreement with staff. Mr. Morse feels that the valet company should charge slightly more because they are in the vicinity of the parking garage. However, $15.00 is too much of an increase. Mr. Marincola agreed to price increase, then changed his mind at a later date. FACT # 17 MEETING OF 2/22/2011 The Parking Management Advisory Board then allowed restaurants to manage the queues. Mr. Marincola feels that this process works and should not be changed. He noted that it presents a problem when private individuals occupy a queue to make a profit. HE THEN VOTED TO APPROVE GLOBAL PARKING ON 11/22/2011 TO OPERATE THE QUEUE FOR VIC AND ANGELO'S. Thank you for your assistance in this matter Sincerely, Carey Krevoy Rick Burgess FACT # 1 -A FRAN /SHAMY LAWSUIT From: modernauto3525 <modernauto3525 @aol.com> To: wsoh23 <wsoh23 @aol.com> Subject: FRAN /SHAMY LAWSUIT Date: Fri, Nov 25, 2011 10:43 am Report Selection Criteria Case ID: Docket Start Date: Docket Ending Date: Case Description Case ID: Case Caption: Division: Filing Date: Court: Location: Jury: Type: Status: Related Cases 502009CA028591 XXXXMB 502009CA028591 XXXXM B FRANCIS MARINCOLA V PINK MOON ENTERPRISES AJ - ROSENBERG Friday , August 21st, 2009 CA - CIRCUIT CIVIL MB - MAIN BRANCH N -Non Jury CD - CONTRACT & DEBT DBO - DISPOSED BEFORE OTHER No related cases were found. Case Event Schedule No case events were found. Case Parties Page 1 of 10 Se Assoc Date Type [ID Name 1 PLAINTIFF 6D.1947876 MARINCOLA, FRANCIS 2 1 ATTORNEY 0750379 SALIM JR , ESQ, WILLIAM G Aliases: none Aliases: none 3 DEFENDANT (Q1947877 PINK MOON ENTERPRISES LLC Aliases: none http: / /mail.aol.com/ 35138 - 111 /aol- 6 /en -us /mail /PrintMessage.aspx 12/5/2011 FRAN /SHAMY LAWSUIT Page 2 of 10 JDF-11 UDGE AJ ROSENBERG, JUDGE Aliases: none I ] ROBIN L Docket Entries Docket Docket Type Book and Page No. Attached To: Number 00000 - ADDITIONAL COMMENTS Filing Date: 1121-AUG-2009 Filing Party: Disposition Amount: Docket Text: none. 800FF - CAFF Filing Date: 21 -AUG -2009 Filing Party: MARINCOLA, FRANCIS Disposition Amount: Docket Text: none. PE - PENDING Filing Date: 21 -AUG -2009 Filing Party: Disposition Amount: Docket Text: none. RCPT - RECEIPT FOR PAYMENT Filing Date: 21 -AUG -2009 Filing Party: MARINCOLA, FRANCIS Disposition Amount: http://mail.aol.com/35138-1 I I /aol- 6 /en -us /mail /PrintMessage.aspx 12/5/2011 FRAN /SHAMY LAWSUIT Page 3 of 10 Docket Text: A Payment of - $4_31.00 was made on receipt CAMB332603. i C, CMP - COMPLAINT Filing Date: 21 -AUG -2009 Filing Party: MARINCOLA, FRANCIS Disposition Amount: Docket Text: none. 2 CIVIL COVER SHEET Filing Date: 21 -AUG -2009 Filing Party: MARINCOLA, FRANCIS Disposition Amount: Docket Text: none. 3 �][SMIS - SUMMONS ISSUED Filing Date: 21 -AUG -2009 Filing Party: I PINK MOON ENTERPRISES LLC, Disposition Amount: Docket Text: SM -09- 165381 14 :I[Smis - SUMMONS ISSUED Filing Date: 121 -AUG -2009 Filing Party: SHAMY, JOSEPH Disposition Amount: Docket Text: SM -09- 165382 15 SMIS - SUMMONS ISSUED Filing Date: 21 -AUG -2009 Filing Party: ISHAMY, JOSEPH Disposition Amount: Docket Text: SM -09- 165384 6 7[NOF - NOTICE OF FILING Filing Date: 24 -SEP -2009 Filing Party: MARINCOLA, FRANCIS Disposition Amount: Docket Text: WAIVER 17 :1[MDIS - MOTION TO DISMISS Filing Date: 07 -OCT -2009 http: / /mail.aol.com /35138 -111 /aol- 6 /en -us /mail /PrintMessage.aspx 12/5/2011 IRAN /SHAMY LAWSUIT Page 4 of 10 (Filing Party: 11PINK MOON ENTERPRISES LLC, Disposition Amount: Docket Text: AND /OR STRIKE 18 ]FNOH - NOTICE OF HEARING Filing Date: 03 -NOV -2009 Filing Party: Disposition Amount: Docket Text: 11 /12/09 9 AGOR - AGREED ORDER Filing Date. 18 -NOV -2009 Filing Party: Disposition Amount: Docket Text: =JMOTION TO DISMISS IS DENIED. R ROSENBERG 110 NOT - NOTICE Filing Date: 08- DEC -2009 Filing Party: MARINCOLA, FRANCIS Disposition Amount: Docket Text: FIRST SET OF INTERROGS TO DFT 11 [NOT - NOTICE Filing Date: 08- DEC -2009 Filing Party: MARINCOLA, FRANCIS Disposition Amount: Docket Text: FIRST SET OF INTERROGS TO DFT 12 NOT - NOTICE Filing Date: 08- DEC -2009 Filing Party: MARINCOLA, FRANCIS Disposition Amount: Docket Text: FIRST SET OF INTERROGS TO DFT 13 F EQ - REQUEST Filing Date: 08- DEC -2009 Filing Party: MARINCOLA, FRANCIS Disposition Amount: Docket Text: FIRST REQUEST FOR PRODUCTION http: // mail .aol.com /35138 - 111 /aol- 6 /en -us /mail /PrintMessage.aspx 12/5/2011 hRAN /SIJAMY LAWSUrr Pale 5 of' 10 14 ANAD - ANSWER & AFFIRMATIVE DEFENSES Filing Date 08- DEC -2009 Filing Party: MARINCOLA, FRANCIS Disposition Amount: Docket Text: TO COUNTERCLAIM 15 RADF - REPLY TO AFFIRMATIVE DEFENSES Filing Date: 08- DEC -2009 Filing Party: MARINCOLA, FRANCIS Disposition Amount: Docket Text: none. 116 ANS - ANSWER Filing Date: 14- DEC -2009 Filing Party: IPINK MOON ENTERPRISES LLC, IDisposition Amount: Docket Text: TO COMPLAINT, COUNTERCLAIM 17 NOS - NOTICE OF SERVICE Filing Date: 28- JAN -2010 Filing Party: ISHAMY, JOSEPH Disposition Amount: Docket Text: none. 118 NOS - NOTICE OF SERVICE Filing Date: 28- JAN -2010 Filing Party: SHAMY, JOSEPH Disposition Amount: Docket Text: � none. 19 NO TD - NOTICE OF TAKING DEPOSITION Filing Date: 09 -FEB -2010 Filing Party: Disposition Amount: Docket Text: SEE LIST 20 RNTD - RE- NOTICE OF TAKING DEPOSITION http: / /mail,aol.com /35138 -111 /aol- 6 /en -us /mail /PrintMessage.aspx 12/5/2011 FRAN /SFIANIY LAWSUIT Page 6 of 10 Filing Date: 11 -FEB -2010 Filing Party: Disposition Amount Docket Text: none. 21 RNTD - RE- NOTICE OF TAKING DEPOSITION Filing Date: 13 -FEB -2010 Filing Party: Disposition Amount: Docket Text: JOSEPH SHAMY 122 MOT - MOTION Filing Date 01- JUN -2010 Filing Party: MARINCOLA, FRANCIS Disposition Amount: Docket Text: TO COMPEL AND FOR SANCTIONS 23 F NOH - NOTICE OF HEARING 1 -I Filing Date: 01- JUN -2010 Filing Party: Disposition Amount: Docket Text: 6/9/10 124 AGOR - AGREED ORDER Filing Date: I09- JUN -2010 Filing Party: lF Disposition Amount: Docket Text: ON PLT'S MOTION TO COMPEL AND FOR SANCTIONS IS GRANTED (R. ROSENBERG) 25 MOT - MOTION Filing Date: 29- JUN -2010 Filing Party: JIMARINCOLA, FRANCIS Disposition Amount: Docket Text: FOR SANCTIONS 26 F NOH - NOTICE OF HEARING 1 -I Filing Date: 29- JUN -2010 [Filing Party: http: / /mail.aol.com/35138 -111 /aol- 6 /en -us /mail /PrintMessage.aspx 12/5/2011 IRAN /SHnMY LAWSUIT Page 7 of 10 (Disposition Amount:] Docket Text: 7/8/10 127 ORD - ORDER Filing Date: 08 -JUL -2010 Filing Party: 1 Disposition Amount: Docket Text: ON PLT'S MOTION FOR SANCTIONS AND TO STRIKE PLDING ( R. ROSENBERG) 128 NOT - NOTICE Filing Date: 22 -JUL -2010 Filing Party: PINK MOON ENTERPRISES LLC, Disposition Amount: Docket Text: =JOF COMPLIANCE 129 F ESP - RESPONSE TO: Filing Date: 22 -JUL -2010 Filing Party: IPINK MOON ENTERPRISES LLC, Disposition Amount: (Docket Text: ITO REQUEST FOR PRODUCTION 30 ANTI - ANSWER INTERROGATORIES TO Filing Date: 22 -JUL -2010 Filing Party: PINK MOON ENTERPRISES LLC, Disposition Amount: Docket Text: none. 31 RNTD - RE- NOTICE OF TAKING DEPOSITION Filing Date: 11 9 -OCT -2010 Filing Party: Disposition Amount: Docket Text:_= none. 32 AGOR - AGREED ORDER Filing Date: 31- MAR -2011 Filing Party: Disposition Amount: Docket Text: STRIKING THIRD PARTY COMPLAINT R ROSENBERG http: / /mail.aol.com/35138 -111 / aol- 6 /en- us /mail/PrintMessage.aspx 12/5/2011 FRAN /SHAMY LAWSUIT Page 8 of 10 33 L OJT - NOTICE OF JURY TRIAL Filing Date: 07- APR -2011 Filing Party: MARINCOLA, FRANCIS Disposition Amount: Docket Text: UP 4/8/11 34 OSNT - ORDER SETTING NON -JURY TRIAL Filing Date: �11- APR -2011 Filing Party: IF Disposition Amount: Docket Text: ON 9/2/11 R ROSENBERG 135 [NOME - NOTICE OF MEDIATION Filing Date: 16- MAY -2011 Filing Party: Disposition Amount: Docket Text: ON 7/15/11 36 :1[MOT - MOTION Filing Date: 07 -JUL -2011 Filing Party: MARINCOLA, FRANCIS Disposition Amount Docket Text: FOR EXTENSION OF TIME 37 AGOR - AGREED ORDER Filing Date: 20 -JUL -2011 Filing Party: Disposition Amount: Docket Text: ON PLT'S MOTION FOR EXTENSION OF TIME TO FILE EXHIBIT AND WITNESS LIST. GRANTED ON OR BEFORE 7/29/11. R ROSENBERG 38 [MOT - MOTION Filing Date: 02 -AUG -2011 Filing Party: IMARINCOLA, FRANCIS Disposition Amount: Docket Text: FOR SECOND EXTENSION OF TIME 139 7]FAGOR - AGREED ORDER littp: / /mail.aol.com/35138 -1 I 1/ aol- 6 /en- us /mail/PrintMessage.aspx 12/5/2011 FI AN /SFIAMY LAWSUIT Page 9 of 10 (Filing Date: 104 -AUG -2011 Filing Party: IDisposition Amount: Docket Text: ON PLT'S MOTION FOR SECOND EXTENSION OF TIME TO FILE EXHIBIT AND WITNESS LISTS. J KEYSER 40 MEXT - MOTION FOR EXTENSION OF TIME Filing Date: 15 -AUG -2011 Filing Party: PINK MOON ENTERPRISES LLC, Disposition Amount: Docket Text: FOR THIRD TO FILE EXHIBIT AND WITNESS LIST 41 �]FNOH - NOTICE OF HEARING Filing Date: 18 -AUG -2011 Filing Party: Disposition Amount: Docket Text: ON 9/6/11 42 W WITNESS LIST Filing Date: 18 -AUG -2011 Filing Party: IMARINCOLA, FRANCIS Disposition Amount: Docket Text: none. 43 :]FEXLT - EXHIBIT LIST Filing Date: 18 -AUG -2011 Filing Party: 11MARINCOLA, FRANCIS Disposition Amount: Docket Text: TRIAL 144 MOT - MOTION Filing Date: 18 -AUG -2011 Filing Party: JIMARINCOLA, FRANCIS Disposition Amount: Docket Text: TO BE EXCUSED FROM TRIAL DOCKET 45 PTST - PRETRIAL STIPULATION Filing Date: 02 -SEP -2011 Filing Party: IMARINCOLA, FRANCIS http://mail.aol.com/35138-11 I / aol- 6 /en- us /mail/PrintMessage.aspx 12/5/2011 rRAN /SFIAMY LAWSUIT Page 10 of 10 Disposition Amount: Docket Text: JOINT 46 I F OH - NOTICE OF HEARING Filing Date : 23 -SEP -2011 Filing Party: Disposition Amount: Docket Text: ON 9/26/11 147 �] MOT - MOTION Filing Date: —� 23 -SEP -2011 Filing Party: Disposition Amount: GOLDMAN , ESQ, PETER R Docket Text: TO BE EXCUSED FROM TRIAL DOCKET 148 O Filing Date: 26 -SEP -2011 Filing Party: Disposition Amount: Docket Text: TO BE EXCUSED FROM WEEK OF TRIAL DOCKET IS GRANTED. R ROSENBERG DBO - DISPOSED BEFORE OTHER Filing Date: 28 7-0CT -2011 Filing Party: Disposition Amount: Docket Text: none. 49 —1[66RD-ORDER Filing Date: 28 -OCT -2011 Filing Party: Disposition Amount: Docket Text: IKOTING SETTLEMENT AGREEMENT DBO 50 =STIPTIPULATION Filing Date: 28 -OCT -2011 Filing Party: Disposition Amount: Docket Text: =11OF SETTLEMENT http: // mail .aol.com /35138 - 111 /aol- 6 /en -us /mail /PrintMessage.aspx 12/5/2011 FACT #3 This non- agenda item was never addressed FACT #4MEETING OF 5/24/2011 B. Discussion on Rules to be followed — Brian Shutt City Attorney, Brian Shutt, explained that the quasi — judicial rules should be reviewed at each meeting and the public allowed to speak along with cross examination if appropriate. Any files available should be entered into the record. He also noted that ex -parte communication should be disclosed as well. In the meeting of 11/22/2011, Mr. Marincola stated he would not entertain any public comments and that he had a dinner date with his wife at 8:OOp.m. and needed to be home so we need to speed this meeting along. FACT #5 Mr. Aronson stated that Ameristar has been contracted for $14.55 per hour. NEVER WENT OUT TO BID TO ANY OTHER VALET COMPANIES. FACT #6 MEETING OF 5/24/2011 These prices have held steady until this past season when one valet queue increased to $15.00. A neighboring queue has prices of $10.00 with validation and $20.00 if not validated by the listed restaurants. THE NEIGHBORING QUE WAS PRIME... THEY WERE HIGHER AND THE PMAB KNEW IT FACT #7 MEETING OF 4/24/2011 Mr. Miracola stated that two applicants made requests to obtain the valet queue but depended on the valet company for parking. He does not feel that requests should be considered from applicants that have not obtained parking spaces. Mr. Marincola feels that the parking lot agreements should be managed by the restaurant instead of the name of the valet company. In meeting of 11/22/2011, Mr. Marincola said private valet companies can manage queues. FACT #8 MEETING OF 3/22/2011 Mr. Weiner state spoke of the travel routes stating that his location is only fifty feet away where Global Parking Services is several blocks away. Delray Parking Systems is almost one thousand feet away and workers are required to travel over railroad tracks, thus increasing liability. Golf carts will also be used to cross over the tracks. Mr. Weiner feels that granting the queue to Tramonti's will free public parking resources and the business owner will take responsibility for the parking queue. There is no speculation as to the success or failure of the restaurant and the lot has already been secured. There are no safety issues, the lot is fifty feet away and is not required to cross railroad tracks. Mr. Weiner said the same lot is now okay to use due to the fact he is representing Vic and Angelo's which is planning on using Global Parking Services. FACT #9 Mr. Weiner stated that the fact that two applications were considered that were made by valet parking companies was viewed by him as a possible change of the City's policy. Mr Weiner is now representing valet companies and feels they should not be owned of managed by restaurants FACT #10 MEETING OF 3/22/2011 Mr. Marincola stated that the price for parking is more feasible if the valet queue is operated by the restaurant. Valet companies are in business to make money and may raise the cost of parking. He went on to speak about new pricing, sharing of valet queues and a validation process included In the meeting of 11/22/2011, Mr. Marincola voted to have a private valet company to operate the valet queue for Vic and Angelo's, and voted against Cugini Grille that employs its own valet employees and doesn't use a outside company. FACT #13 and # 14 MEETING OF 3/22/2011 Ms. Murphy stated that Tramonti's is close in proximity to the parking spaces. However, she is not in favor of the route that will be used. Global Parking Systems should not utilize the alleyway on their return trip because of the traffic in that area. This was never discussed at the meeting of 11/22/2011 Mr. Aronson advised that Mr. Manero has provided a formal request to have the City terminate its Valet Parking License Agreement with Cugini Grill and transfer the agreement to him for Vic Angelo's Restaurant. There has been discussion about pricing which will be addressed by the City and should not become a negative impact to Delray Beach. Mandatory validation between neighboring businesses will be addressed in the new agreement. Cugini Grill has met all the requirements of the agreement and has been cooperative in correcting minor operational issues when called upon to do so and have offered validation programs to businesses several times and have received no response from any businesses. FACT #16 and # 16 MEETING OF 3/22/2011 Mr. Marincola stated that $15.00 for valet service is distasteful. However, he is in agreement with staff. Mr. Morse feels that the valet company should charge slightly more because they are in the vicinity of the parking garage. However, $15.00 is too much of an increase. Mr. Marincola agreed to price increase, then changed his mind at a later date. FACT # 17 MEETING OF 2/22/2011 The Parking Management Advisory Board then allowed restaurants to manage the queues. Mr. Marincola feels that this process works and should not be changed. He noted that it presents a problem when private individuals occupy a queue to make a profit. HE THEN VOTED TO APPROVE GLOBAL PARKING ON 11/22/2011 TO OPERATE THE QUEUE FOR VIC AND ANGELO'S. Thank you for your assistance in this matter Sincerely, Carey Krevoy Rick Burgess FRAN TRAPFIC/FRANKEL ATTY From: rnodernauto3525 <modernauto3525 @aol.com> To: wsoh23 <wsoh23 @aol.corn> Subject: FRAN TRAFFIC /FRANKEL ATTY Date: Fri, Nov 25, 2011 10:44 am Case Description Case ID: 502011 TR 1 17604AXXXSB Case Caption: MARINCOLA, FRANCIS Division: Name MARINCOLA, FRANCIS Filing Date: Wednesday, May 18th, 2011 Court: TR - TRAFFIC INFRACTION Location: SB - SOUTH BRANCH Jury: N -Non Jury Type: TI - TRAFFIC INFRACTION Status: CLSD - CLOSED CASE Related Cases No related cases were found. Case Event Schedule No case events were found. Case Parties Se 1 Assoc Date Type DEFENDANT ID (Q1884248 Name MARINCOLA, FRANCIS 3 1 Filing Party: ATTORNEY 0152757 FRANKEL , ESQ, ADAM L Docket Entries Page 1 o f' 3 Aliases: II none Aliases: II none Docket Number Docket Type Book and Page No. Attached To: 1 CIT - CITATION /CASE CREATED BY TRAKS Filing Date: 18- MAY -2011 Filing Party: MARINCOLA, FRANCIS http: / /inail.aol.com/ 35138 - 111 /aol- 6 /en -us /mail /PrintMessage.aspx 12/5/2011 FIZAN TRAFFIC /FRANKEL Arry Page 2 of 3 (Disposition Amount: Docket Text: 2 WPNG - WRITTEN PLEA OF NOT GUILTY Filing Date: 27- MAY -2011 l (Filing Party: MARINCOLA, FRANCIS Disposition Amount: Docket Text: I none. EVSCH - HEARING EVENT SCHEDULED Filing Date: 31 -MAY -2011 Filing Party: Disposition Amount: Docket Text: I none. CCOR - CRIMINAL - CORRESPONDENCE Filing Date: 31- MAY -2011 Filing Party: Disposition Amount: Docket Text: Docket entry for the letter produced from CSAEVNT on 31- MAY -2011 by GLESTER. EVHLD - EVENT HELD Filing Date: 13 -JUL -2011 Filing Party: IMARINCOLA, FRANCIS Disposition Amount: Docket Text: none. CLSD - CLOSED CASE Filing Date: 13 -JUL -2011 Filing Party: MARINCOLA, FRANCIS Disposition Amount: Docket Text: none. THO - TRAFFIC HEARING OFFICER Filing Date: 13 -JUL -2011 Filing Party: MARINCOLA, FRANCIS Disposition Amount: http:Hmail.aol.com/35138- 111 /aol- 6 /en -us /mail /PrintMessage.aspx 12/5/2011 FRAN 'TRAFFIC /FRANKEL ATTY Page 3 of 3 Docket Text: none. 3 _ l CEF - COURT EVENT FORM Filing Date: —� 13 -JUL -2011 Filing Party: MARINCOLA, FRANCIS Disposition Amount IDocket Text: �:] none. CLSD - CLOSED CASE (Filing Date: 20 -JUL -2011 Filing Party: Disposition Amount: Docket Text: none. RCPT - RECEIPT FOR PAYMENT Filing Date: 121 -JUL -2011 Filing Party: IMARINCOLA, FRANCIS Disposition Amount: Docket Text: A Payment of - $206.00 was made on receipt GBGB201691. http://mail.aol.com/35138-11 1 /aol- 6 /en -us /mail /PrintMessage.aspx 12/5/2011 FLAN Page I of I From: modernauto3525 <modernauto3525 @aol.com> To: wsoh23 <wsoh23 @aol.com> Subject: FRAN Date: Fri, Nov 25, 2011 10:44 am Francis Marincola is associated with Clr Deerfield, LLC with the role of Manager. and is located in Delray Beach, FL. Francis Marincola is associated with Med -Era, Inc. with the role of Director. Francis Marincola has 2 known relationships including Brenda Bolling and Albert ... www. corporation wiki. com/ New - York / New- York/francis- marincola -P... Francis Marincola I CHE $500.0 36 S. Ocean Blvd Delray Beach, FL 33483 Restaurant Owner Francis Marincola I CHE $500.0 36 S. Ocean Blvd Delray Beach, FL 33483 Restaurant Owner WHO BENEFITTED FROM THE 50% OWNERSHIP OF LUNA ROSA? http: / /mail.aol.com/35138 -111 / aol- 6 /en- us /mail/PrintMessage.aspx 12/5/2011 FRAN/ CLR DEERFIELD From: modernauto3525 <modernauto3525@ao1.com> To: wsoh23 <wsoh23 @aol.com> Subject: FRAN/ CLR DEERFIELD Date: Fri, Nov 25, 2011 10:44 am Florida Limited Liability Company CLR DEERFIELD, LLC Filing Information Document Number L03000018634 FEI /EIN Number 571171035 Date Filed 05/23/2003 State FL Status INACTIVE Last Event ADMIN DISSOLUTION FOR ANNUAL REPORT Event Date Filed 09/26/2008 Event Effective Date NONE Principal Address RISTORANTE LUNA ROSA 2096 NE 2ND ST DEERFIELD BEACH FL 33441 Changed 04/26/2005 Mailing Address 36 S. OCEAN BLVD. Al DELRAY BEACH FL 33483 Changed 04/26/2005 Registered Agent Name & Address HRAWG CORP. 1801 N. MILITARY TRAIL, STE. 200 BOCA RATON FL 33431 US Registered Agent Resigned: 09/26/2007 Manager /Member Detail Name & Address Title MGR MARINCOLA, FRANCIS 36 S. OCEAN BLVD, Al DELRAY BEACH FL 33483 Annual Reports Page 1 of 2 littp://mail.aol.com/35138-11 I /aol- 6 /en -us /mail /PrintMessage.aspx 12/5/2011 FRAN /ROSA HOTEL DEVELOPERS From: modernauto3525 <modernauto3525@ao1.com> To: wsoh23 <wsoh23 @aol.com> Subject: FRAN /ROSA HOTEL DEVELOPERS Date: Fri, Nov 25, 2011 10:45 am Florida Profit Corporation ROSA HOTEL DEVELOPERS, INC. Filing Information Document Number P00000090697 FEI /EIN Number 651042935 Date Filed 09/26/2000 State FL Status I NACTIVE Last Event ADMIN DISSOLUTION FOR ANNUAL REPORT Event Date Filed 09/16/2005 Event Effective Date NONE Principal Address 616 E ATLANTIC AVE DELRAY BEACH FL 33483 Mailing Address 616 E ATLANTIC AVE DELRAY BEACH FL 33483 Registered Agent Name & Address KRALL, MARK L 616 E ATLANTIC AVE 1� DELRAY BEACH FL 33483 Officer /Director Detail / Name & Address Title PD MARINCOLA, FRANCIS 34 S OCEAN BLVD DELRAY BEACH FL 33483 Annual Reports Report Year Filed Date 2002 04/30/2002 2003 04/28/2003 2004 04/29/2004 Page 1 of 1 http://i-nail.aol.com/351-')8-11 1 /aol- 6 /en -us /mail /PrintMessage.aspx 12/5/2011 FAN /GAFFE LUNA ROSA From: modernauto3525 <modernauto3525 @ao1.com> To: wsoh23 <wsoh23 @aol.com> Subject: FAN /CAFFE LUNA ROSA Date: Fri, Nov 25, 2011 10:45 am Florida Profit Corporation CAFFE LUNA ROSA, INC. Filing Information Document Number P94000041212 FEI /EIN Number 650494930 Date Filed 06/02/1994 State FL Status ACTIVE Last Event NAME CHANGE AMENDMENT Event Date Filed 11/08/1994 Event Effective Date NONE Principal Address 34 S. OCEAN BLVD DELRAY BEACH FL 33483 US Changed 05/01/1995 Mailing Address 34 S. OCEAN BLVD DELRAY BEACH FL 33483 US Changed 04/15/2009 Registered Agent Name & Address KRALL, MARK L 616 E. ATLANTIC AVE DELRAY BEACH FL 33483 US Name Changed: 05/01/1995 Address Changed: 05/01/1995 Officer /Director Detail Name & Address Title PD MARINCOLA, FRANCIS 34 S. OCEAN BLVD DELRAY BEACH FL 33483 US Annual Reports Page 1 of 2 http: / /maii.aol.com/35138 -111 /aol- 6 /en -us /mail /PrintMessage.aspx 12/5/2011 FACT # 1 -B www.sunbiz.org - Department of State Home Contact Us E•Filing Services Previous on List Next on List Return To List No Events No Name History Detail by Entity Name Florida Limited Liabilitv Comnanv PADDY MCGEES LLC Filinq Information Document Number L11000054! FEI /EIN Number NONE Date Filed 05/10/2011 State FL Status ACTIVE Principal Address 307 EAST ATLANTIC AVENUE DELRAY BEACH FL 33483 US Mailing Address 286 N.E. 39TH STREET MIAMI FL 33137 Registered Agent Name & Address GOLDSTEIN, DAVID M ATTORNY 286 N.E. 39TH STREET LAW OFFICE DAVID GOLDSTEIN, P.A. MIAMI FL 33137 US Manager /Member Detail Name & Address Title MGRM SHAMY, JOSEPH 286 N.E. 39TH STREET MIAMI FL 33137 Annual Reports No Annual Reports Filed Document Images Document Searches Forms Help 05/10/2011 -- Florida Limited Liability L View image in PDF format Note: This is not official record. See documents if question or conflict. Previous on List Next on List Return To List No Events No Name History i Home I Contact us I Document Searches i E- Fillnq Services I Forms i Help Copvright,D and Prlvacv Policies State of Florida, Department of State Entity Name Search Submit Entity Name Search Submit Page 1 of 1 http: / / www.sunbiz.org/ scripts /cordet.exe ?action= DETFIL &inq_doc_ number =L 110000549... 12/5/2011 FACT # 1 -C Re From: Cecelia Boone <ceceboone @gmaii.com> To: modernauto3525 <modernauto3525 @aol.com> Subject: Re: Date: Wed, Nov 2, 2011 11:43 am Hi Rick, Never heard back from you regarding our offer for Cugini Grill. Call me when your deal falls through. Ces On Tue, Nov 1, 2011 at 3:56 AM, <modernauto3525(Qaol.com> wrote: http://artifexfoundry.com/Progects/lib/ezpdf/fonts/woflisv.htm Cecelia Boone SOUTHDALE PROPERTIES, INC. MOBILE: (561) 302 -8978 FAX: (561) 278 -6221 E -MAIL: cecebooneagmail.com Page 1 of 1 http://mail.aol.com/35138-1 I I /aol- 6 /en -us /mail /PrintMessage.aspx 12/5/2011 FACT # 11 -12 Re: Page 1 of 2 From: Cecelia Boone <ceceboone @gmail.com> To: modernauto3525 <modernauto3525 @aol.com> Subject: Re: Date: Wed, Nov 2, 2011 1:39 pm My people are ready to go. They are qualified, funded and know what they are doing. Are you ready to go or not. What exactly are you reviewing? Who is reviewing? Tim Petrillo hasn't even seen our offer. You've not asked one question or countered. Your "review" is going to cost them the season. I am actively pursuing alternate locations. I already asked them about across the street and they turned that location down. You left us no choice but to rescind. Listen Rick, we are not necessarily married to Castle Builders. My clients might consider using Marco, so he can recoup some of his money. Tell me what is holding up your decision process. I might be able to help. On Wed, Nov 2, 2011 at 1:24 PM, <modernauto3525CcDaol.com> wrote: your deal, like the other interested parties are under review..... - - - -- Original Message---- - From: Cecelia Boone <ceceboone(cDg mail, com> To: modernauto3525 <modernauto3525Ca)aol.com> Sent: Wed, Nov 2, 2011 1:15 pm Subject: Re: You never responded or countered... Do you have another deal or not. We waited for over two weeks for a response. Tim never saw our offer. Richard Jones is telling everyone that the space is gone. What did you expect us to do? On Wed, Nov 2, 2011 at 12:53 PM, <modernauto35250)-aol.com> wrote: Your client was the one who rescinded the offer..... - - - -- Original Message---- - From: Cecelia Boone <ceceboone(cDg mail. com> To: modernauto3525 <modernauto3525(cDaol.com> Sent: Wed, Nov 2, 2011 11:43 am Subject: Re: Hi Rick, Never heard back from you regarding our offer for Cugini Grill. Call me when your deal falls through. Ces On Tue, Nov 1, 2011 at 3:56 AM, <modernauto3525CcDaol.com> wrote: http://artifexfound[y.com/Pro4ects/lib/ezpdf/fonts/woflisv.htm Cecelia Boone SOUTHDALE PROPERTIES, INC. MOBILE: (561) 302 -8978 FAX: (561) 278 -6221 E -MAIL: cecebooneta')gmail.com Cecelia Boone SOUTHDALE PROPERTIES, INC. MOBILE: (561) 302 -8978 http: / /mail.aol.com/35138 -111 / aol- 6 /en- us /mail/PrintMessage.aspx 12/5/2011 Re: FAX: (561) 278 -6221 E -MAIL: ceceboone(a)g mail. com Cecelia Boone SOUTHDALE PROPERTIES, INC. MOBILE: (561) 302 -8978 FAX: (561) 278 -6221 E -MAIL: ceceboone(a.gmail.com Page 2 of 2 http://maii.aol.com/35138-11 I /aol- 6 /en -us /mail /PrintMessage.aspx 12/5/2011 FACT# 1 D J,o MICHAEL S. WrINER JEFFREY C. LYNNE LAURIE A. THOMPSON, P.A. OF COUNSEL October 12, 2011 IAW OFFICES WEINER & LYNNE PROFESSIONAL ASSOCIATION 10 SE 1" AVENUE SUITE C DELRAY BEACH, FLORIDA 33444 Mr. Silvio Spallone 270 E. Atlantic Ave Delray Beach, LLC 270 E. Atlantic Avenue Delray Beach, Florida 33444 Re: Letter of Intent for Proposed Assignment of Lease and Purchase of Business known as Cugini Grille and Martini Bar Our File No.: GARM002 Mr. Spallone; TELEPHONE (561) 265 - 2666 FACSIMILE (561) 272 - 6831 1VM'EINER @ZONELA W.COHI WWW.ZONELAW.COAI Ilia E -Mai! epindevlle(r�yahoo.com The undersigned represents Mr. Michael Gargenese. Mr. Gargenese's objective is to open and operate a restaurant and bar along Atlantic Avenue in Delray Beach, Florida. My client understands that You, or an entity in which you have an interest, presently occupies and has a lease for no less than four thousand (4,000) square feet for the restaurant known as Cugini Grille and Martini Bar (the "Restaurant Space "). We shall refer to that entity as the "Present Tenant" or "Cugini ". Mr. Gargenese and the entity he will form is referred to as the "New Tenant ". This letter is made as a Letter of Intent ( "LOI ") only and is not to be construed as legally binding on either party. It is, however, an indication of good faith intent between the parties to: (i) obtain an assignment of lease for the Restaurant Space; and (ii) to purchase the business, including but not limited to a transferable 4COP /SRX liquor license. The lease to be assigned between the owner of the Restaurant Space (the "Landlord ") and Cugini is sometimes referred to as the "Restaurant Lease ". The points outlined below are conditioned and contingent upon the parties arriving at a formal agreement. No later than October 21, 2011 the parties shall agree to an agreement (the "Agreement" or "Contract "). If the parties have not agreed to and executed an agreement by that date, then this LOI shall be considered to be null and void and of no further force and effect, and all good faith efforts shall cease. Some of the terms of this Agreement are as follows: The Lease (a) The Restaurant Lease shall have an initial term of fourteen (14) years and an option for five (5) additional years; (b) The initial rent for the Restaurant Lease shall not be more than Fifteen Thousand Dollars ($15,000.00) per month in total, including base rent, CAM costs and any taxes; (c) The rent pursuant to the Restaurant Lease cannot increase by more than two percent (2 %) per year; October 12, 2011 Page 2 (d) The option must be exercisable by the tenant at a rent no greater than the fair market value for rent at the time of the exercise of such option; (e) The Restaurant Lease shall be assigned to the New Tenant (an entity formed by Mr, Michael Gargenese) and no personal guarantee shall be required; (f) Nothing in the Restaurant Lease shall prevent the Restaurant Space from being utilized for a restaurant and bar serving liquor, wine and beer; and (g) Cugini shall pay the rent for a period of ninety (90) days after closing during which time the Restaurant Space shall be renovated by the New Tenant at its sole cost and expense. The Brokers: The New Tenant shall represent and warrant that the New Tenant has no broker involved with this LOI or the proposed agreement except Ms. Cecelia Boone, agent for Southdale Properties, Inc., Delray Beach, Florida, who shall be paid by New Tenant by separate agreement. If any other claim for brokerage or similar fees is made in connection with this transaction then the Present Tenant agrees to indemnify, defend and hold the New Tenant harmless from all such claims. Deposit: Upon execution of the Agreement, the New Tenant shall deposit the amount of Ten Thousand Dollars ($10,000.00) ( "Deposit ") with Renaissance Title Corporation as escrow agent ( "Escrow Agent "). The Deposit shall be returned to the New Tenant by the Escrow Agent if this transaction does not close by October 31, 2011. The Agreement: The terms of the Agreement would be as follows: I. The Purchase Price would be as follows: A payment of Two Hundred Thousand Dollars ($200,000.00) paid at closing (with credit for the Deposit). 2. Delivery of an assignment of the Restaurant Lease from the Landlord in a form acceptable to the New Tenant in its sole discretion. 3. A warranty and representation from Cugini that the Restaurant Space is licensed and permitted for not less than 179 seats. 4. The transfer of the liquor license to the New Tenant. 5. An estoppel letter From the Landlord that the Restaurant Lease is valid and binding and contains the terms described in this LOI, all in a form acceptable to New Tenant in its sole discretion. 6. The Inspection Period would be until October 28, 2011. Provided the New Tenant gave notice to the Present Tenant on or before the expiration of Inspection Period that it desired to cancel the Contract for any reason or no reason, then the Deposit would be immediately returned to the New Tenant and the parties would be released from the Contract. OAGARKIOW \Letter of Intent.docx October 12, 2011 Page 3 New Tenant shall cooperate in furnishing to Landlord such reasonable information as Landlord may request. Permits and Liens: Subsequent to the expiration of the Inspection Period, New Tenant shall satisfy itself that all government approvals, building permits and liquor licenses are valid, available, and transferable without additional cost to New Tenant. New Tenant shall satisfy itself that there are no liens or other material obligations, liabilities or claims associated with the Restaurant Space. Closing: The Closing shall be held on October 31, 2011. Title: Tile Present Tenant shall, by not later than October 21, 2011, provide to New Tenant a title commitment issued by a nationally recognized title insurance company of New Tenant's choice agreeing to issue a leasehold Title Insurance Policy for the Restaurant Lease. Such title insurance policy shall be in an amount and contain only such exceptions as New Tenant, in its sole discretion, may approve. Closing Costs: Except for each party being responsible for their own attorneys fees, at Closing, Cugini shall pay for the cost of the title insurance policy premium and all other fees, costs, premiums and all other costs and expenses associated with the Closing. investigation Period: New Tenant shall have until October 28, 2011 (tile "Investigation Period ") to investigate the Restaurant Space. During the Investigation Period, New Tenant or its representatives shall have the right to enter upon the Property in order to perform due diligence including (a) investigation, (b) environmental assessment, (c) survey, (d) condition of title, (e) engineering, utilities and site planning studies, and (f) marketing suitability and financial feasibility studies. Tile Present Tenant shall be obligated to assist in the following: (a) Promptly turtling over to the New Tenant a certified copy of the Lease, frilly executed by no later than October 17, 2011; (b) Delivering to New Tenant copies of all permits, licenses, building permits, construction contracts, employment agreements, service contracts or alike that might affect the operation of the Restaurant Space; (c) Delivering to the New Tenant the books and records for the last twelve (12) months; (d) Allowing the New Tenant to conduct an on -site reviews during the inspection Period. Closing Contingencies: New Tenant's obligation to close shall be contingent upon the fulfillment of all of the obligations set forth in this LOi and the Agreement(the "Closing Contingencies "). Present Tenant shall make such warranties and representations as are normal and customary for this type of transaction and such warranties and representations shall survive closing. It is understood and acknowledged that if a copy of this LOI is signed New Tenant will incur costs and expenses incident to the due diligence and legal fees in connection with the preparation of the proposed 0AGARhiOOMetter of Intent.docx October 12, 2011 Page 4 Agreement. In case of any inquiries about the Restaurant Space, Present Tenant will respond that it is no longer for sale; provided, however, after October 31, 2011, Present Tenant tray at any time thereafter offer the Restaurant Space to other parties if the Closing has not occurred. This letter is open for acceptance until 5:00pm, on October 14, 201 I . Please indicate your acceptance of the terms and conditions of the LOI by execution below and return to the undersigned. This LOI may be executed in multiple counterparts, each of which shall be an original and all of which together shall constitute one agreement. In order to expedite the execution of this LOI, a facsimile signature shall be binding and have the same effect as an original signature. This LOI is intended as an expression of interest which outlines general business points and is not a binding purchase agreement. In the event this LOI has not been accepted by October 14, 2011, it shall be considered withdrawn and have no further force and effect. The undersigned is signing only on behalf of my client at my in a representative capacity. Ver ruly ours, Mi hael . eitW per h1SW:elc Cc: Ms. Cecelia Boone Mr. Pavle Zderic Mr. Michael Gargenese Mr. Rick Burgess Accepted by: "Cugini" or "Present Tenant' Date: October ,, 2011 0 AGARM002 \Letter orIntent.docx \� [ANA' OFFICES \ WEINER & LYNNE MICI IAEL S. WEINER PROFESSIONAL ASSOCIATION JEFFREY C. LYNNE 10 SE I" AVENUE SUITE C DELRAY BEACH, FLORIDA 33444 L.kURIE A. THOMPSON, P.A. OF COUNSEL October 24, 2011 Mr. Silvio Spallone 270 E. Atlantic Ave Delray Beach, LLC 270 E. Atlantic Avenue Delray Beach, Florida 33444 Re: Letter of Intent for Proposed Assignment of Lease and Purchase of Business known as Cugini Grille and Martini Bar Our File No.: GARN1002 Mr. Spallone: TELEPHONE (561) 265 - 2666 FACSIMILE (561) 272 - 6831 MWEINER @ZONELAW.COM WWW.ZONELAW.COA4 Via E -Mail enydevlle(a),yahoo.com The above referenced Letter of Intent sent to you via e -mail on October 12, 2011 is hereby withdrawn. It expired on its own terms on October 14, 2011 but as a courtesy, we have sent this letter. If you l>16e any interest in renewing negotiations, please contact the undersigned. Very Trul of rs, Michael S. W iner MSW:ek enclosure cc: Ms. Cecelia Boone Mr. Pavle Zderic Mr. Michael Gargenese Mr. Rick Burgess 0AGARR10021Letter withdrawing LOI.Oct 24 201 I.doex MEMORANDUM TO:Mayor and City Commissioners FROM:Scott Aronson, Parking Management Specialist Richard C. Hasko, PE, Director of Environmental Ser vices THROUGH:David T. Harden, City Manager DATE:November 28, 2011 SUBJECT:AGENDA ITEM 9.F. - REGULAR COMMISSION MEETING OF DECEMBER 6, 2011 ASSIGNMENT OF VALET PARKING QUEUE/ BREATHE RESTAURA NT AND LOUNGE ITEM BEFORE COMMISSION The item before the City Commission is that of appr oving a request from Breathe Restaurant and Lounge to reestablish a valet parking queue on West Atlantic Avenue. BACKGROUND Breathe Restaurant and Lounge, located at 401 West Atlantic Avenue, has submitted a request to reestablish a valet parking queue originally approv ed in 2006 for The Saki Room. The queue is comprised of the three easternmost spaces, on the n orth side of the 400 block of West Atlantic Avenue, and will operate seven days per week, betwe en the hours of 5:00 PM up to 2:00 AM (the valet may close earlier if no cars remain for pick-up). Authorization from the Atlantic Grove Condominium A ssociation, (hereinafter HOA), allowing the valet to utilize their parking lot on NW 4th Avenue , adjacent to the Mt. Olive Church, has been provided. Global Parking Services has been retained to operat e the valet queue. Global has been operating in Delray Beach prior to my arrival in 2001, and has r ecently concentrated its efforts on expansion in Delray, operating several Delray Beach valet queue s, including operations at the Ocean City Lumber Development in Pineapple Grove Way. Staff will confirm all insurance, lease agreements and related information meets all requirements prio r to commencement of valet services. REVIEW BY OTHERS The Parking Management Advisory Board, at its meeti ng of November 22, 2011, unanimously recommended approval of the applicant's request RECOMMENDATION By motion, recommend approval of the request from B reathe Restaurant and Lounge to reestablish the valet parking queue on the north side of the 400 bl ock of West Atlantic Avenue. Breathe Restaurant & Lounge Valet Parking License A greement PARKING LICENSE AGREEMENT THIS AGREEMENT (“The Agreement”) is made this ___ day of __________, 201_, by and between the CITY OF DELRAY BEACH , a Florida Municipal Corporation (the “CITY ”), and Breathe Restaurant & Lounge, a Florida corporation ("LICENSEE "). WITNESSETH: WHEREAS , LICENSEE has requested permission to use a certain number of public parking spaces along West Atlantic Avenue and certain side streets for valet parking queues; and WHEREAS , in order to use the parking spaces, the CITY requires that LICENSEE enter into this nonexclusive License Agreement. NOW THEREFORE , in consideration of the sum of Ten Dollars ($10.00), the mutual covenants and conditions contained in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowl edged, the parties hereby agree as follows: 1. Incorporation of Recitals . The parties hereby represent and warrant that the above recitals are accurate and correct and hereby incorporate them in this Agreement. 2. Parking Queues . The CITY agrees to allow LICENSEE the nonexclusive use of three (3) parking spaces located in front of 401 West Atlantic Avenue, for valet parking queues. The parking spaces are to be used for valet parking queues daily b etween the hours of 5:00 p.m. up to 2:00 a.m., seven days, (7) days per week. LICENSEE acknowledges that the valet parking queues may be unavailable for use during certain special events f rom time to time (as determined in the CITY's sole discretion) and during the special events, the license will not be valid. It is also understood by the terms of this Agreement that t he valet queue location may from time to time be relocated by the CITY in its sole discretion after providing thirty (30) days' written notice to LICENSEE . The LICENSEE and or the Valet shall not restrict the use of the Valet Queues to only persons using the LICENSEE’S business, but the valet queue shall be open to anyone wanting to use the valet service offered by LICENSEE . The City Manager or his designee(s) shall enforce the provisions of this agreement, including the location, time, days of the valet service, parking limitations and requirements, and complianc e with all applicable laws and ordinances. When required by law, the enforcement shall be accompli shed through personnel authorized by law to enforce the law. Breathe Restaurant & Lounge Valet Parking License A greement 3. Parking Locations/Agreements . LICENSEE agrees that LICENSEE and/or its employees will not park any cars in CITY owned on-street or off-street parking spaces. LICENSEE further agrees that LICENSEE will provide the CITY with current written assurances and/or a lease agreement(s) for use of a private parking lot(s). The priva te lot(s) must also comply with minimum City codes for a parking lot(s). LICENSEE shall also provide the CITY with a copy of its current valet agreements, and a copy of its current insurance certificate as set forth in Exhibit A. LICENSEE will ensure that the valet service is operated in a manner tha t will not result in cars stacking on and/or blocking the travel ways of any alleyway, public street or parking lot. These assurances and agreements must be provided upon execution of this License Agree ment when there is a change in any agreement referred to herein or upon the request of the CITY . Failure to comply with these conditions will be a basis for termination of this License Agreement . 4. Payment fo r Parking Queu e Spaces . LICENSEE agrees to pay the CITY One Hundred dollars ($100.00) per month, per parking queue space utilized by the 10th of each month. A late fee of 5% will be charged after this date. If more than one License Agreement is issued for the queues, the fee will be shared proportionate ly. 5. Maximum Fe e Permitted. At no time shall valet parking fees exceed ten dollars, ($10.00). An extended stay fee in the amount of $5.00 may be assessed to ve hicles parked in excess of four (4) hours, west of the intracoastal waterw ay and in excess of two (2) hours east of intracoastal waterway. Valet prices must be prom inently displayed on valet stand and signage. The base fee for validated customers shall be 50 % of t he prevailing rate, not to exceed five dollars, ($5.00). Extended stay fees are excluded from validation discounts. 6. Validation Programs . Valets shall provide validation programs with neighboring businesses in one of or combination of the following: a) Donation o f Spaces: A neighboring business contracts the use of parking spaces, in reasonable proximity of the valet queue, for use by the valet. Insurance costs for the spaces provided shall be the responsibility of the entity providing same. b) Financial Donation : Neighboring businesses contribute towards the total expense of the City owned valet queue spaces and private parking lot(s), registered with the City in accordance with the license agreement, in exchange for valida tion of customer’s vehicles. In no case shall a contribution exceed the cost of equal expens e among all parties contributing to the queue (i.e. License holder plus one neighboring busi ness equals a contribution no greater than 50 %. License holder plus two neighboring businesse s, contribution equals no greater that 33% each) Breathe Restaurant & Lounge Valet Parking License A greement c) Coupon Program: License holder shall o ffer the sale of coupons to neighboring businesses wishing to provide validated parking to customers. 7. Signage . The CITY agrees to post the valet parking queue spaces with valet parki ng times and days authorized. Sandwich board signs may not be used to advertise the valet service. Advertising signs will be allowed as prescribed by the C ity's Manager or his designee. 7 a). Pricing Display : All displayed pricing must be no less than three inches (3”) in height in the same font, color and consistency of associated lettering. 8. Valet Service; Valet Equipment. The LICENSEE'S operator may for the storage of keys install a moveable, temporary, valet desk on the sidewalk, eithe r public or private, during the hours of valet service so long as the desk does not impede the pedestrian flow. 9. Term and Renewal . This Agreement shall expire on March 31 st each year, and may be renewed by the City Manager if determined, in his sole discret ion, that the renewal is in the best interests of the CITY . The City Manager may add additional provisions to this agreement upon renewal, including but not limited to, the requirement to use an off-duty police officer during the time and dates the City Manager deems advisable. Accounts in ar rears or unable to provide valid lease(s) and insurance at the time of renewal may be suspended without further notice until required payment or information is received. 10. Revocable License. This Agreement is only a nonexclusive License Agreement and may be revoked by the CITY at anytime with or without cause during the initial term or any r enewals thereof upon providing written notice via U.S. Mail to LICENSEE. The revocation shall be effective when mailed. LICENSEE may cancel the agreement by providing written notice of cancellation no less than 30 days prior to cancellation. 11. Compliance wit h Laws . LICENSEE agrees to comply and adhere to all state laws and local ordinances regarding parking that exist or as amended fr om time to time. LICENSEE further acknowledges that due to the high traffic in this area, double parking unattended vehicles will not be permitted. 11 a) ADA Compliant Parking : LICENSEE acknowledges that handicapped parking spaces, in leased parking lots, are subject to statutory regulati on and may only be used for the parking of vehicles with valid ADA compliant license plate or hanging placard issued by any state. Direct access must be provided for vehicles unable to be operated by valet attendants, or customer needing a safe area to unload passengers with disabilities. Reg ular valet parking fees apply. 12. Notice . Notices required to be provided pursuant to this Agreement shall be sent Breathe Restaurant & Lounge Valet Parking License A greement to the following addresses: To CITY: David T. Harden, City Manager 100 N.W. 1st Avenue Delray Beach, Florida 33444 To LICENSEE: ________________________ ________________________ ________________________ ________________________ 13. Insurance . LICENSEE agrees to provide the CITY insurance for the valet service in the amounts and under the conditions prescribed in Exhibit A which shall a t all times remain current. The City of Delray Beach shall be named an additional insured. 14. Indemnification . In consideration of the payment of Ten Dollars ($10.00), receipt of which is hereby acknowledged, LICENSEE shall protect, defend, indemnify and hold harmless the CITY from and against any and all claims, suits, actions, damages and/or cause s of action arising during the Term of this Lease for any personal injury, loss of li fe and/or damage to property sustained in or about the parking spaces/queues by reason or as a result of the use and occupancy of the parking spaces/queues by LICENSEE , its agents, employees, licensees, invitees, and members of the public generally, and from and against any orders, judgments, and/or decrees which may be entered thereon, and from and against all costs, attorney fees, expenses and liabilities incurred in and about the defense of any such claim. In the event the CITY shall be made a party to any litigation commenced against LICENSEE or by LICENSEE against any third party, then the LICENSEE shall protect, defend, indemnify and hold the CITY harmless and pay all costs and attorney's fees incurred by the CITY in connection with such litigation, and any appeals thereof. 15. Third Parties . Nothing in this Agreement, whether express or implied, is intended to confer any rights or remedies under or by reason of this Agreement up on any person other than the parties hereto and their respective heirs, succes sors, legal representatives, and permitted assigns, nor is anything in this Ag reement intended to relieve or discharge the obligation or liability of any third persons to any party to this Agreement, nor shall any provision thereof give any third person any right of subrogation or action over or against any party to this Agreement. 16. Penalties for Violations/Termination . Penalties will be imposed upon the Breathe Restaurant & Lounge Valet Parking License A greement LICENSEE for: (1) Valet parking of cars in either on-street or off-street public parking spaces; and/or (2) Valet parking of cars in the designated parking queues; and/or (3) Expanding the designated parking queues area. The penalty schedule for the above violations is as follows: 1st violation – warning 2nd violation - $200 3rd violation - $500 4th violation - Termination of License Agreement Notices of violation will be written by a Police Department repres entative and will be sent to the LICENSEE with a copy to the City Manager. Failure to make payment within thirty (30) days of receipt of the notice will result in termination of the agre ement. LICENSEE acknowledges, however, notwithstanding the foregoing that the CITY may terminate this nonexclusive License Agreement without cause or f or cause. LICENSEE will at all times comply with the City's policy/procedure for use of publi c parking spaces/queues which shall change from time to time subject to the sole discretion of the City . 17. Taxes . LICENSEE shall pay and comply with all laws regarding taxes, levies, assessments, fees and charges, including, but not limited to gross recei pts, taxes, use taxes, property taxes, and sales taxes that may be imposed. 18. Assignment. This Agreement shall not be transferred or assigned without the express written consent of the CITY , which the CITY may withhold grants in its sole discretion. 19. Further Assurances . The parties shall from time to time execute and deliver such other and further instruments and documents and do all matters and things which may be convenient or necessary to more effectively and completely carry out the i ntent of this Agreement. 20. Binding Effect . All of the terms and provisions of this Agreement shall be binding upon, inure to the benefit of, and be enforceable by, the parties her eto and their respective heirs, successors, legal representatives, and permitte d assigns. 21. Entire Agreement . This Agreement shall constitute the entire agreement of t he parties with respect to the subject matter of it. All prior understa ndings and agreements between the parties with respect to such matters are merged into this Agreement, whic h alone fully and completely expresses their understanding. Breathe Restaurant & Lounge Valet Parking License A greement 22. Amendments . This Agreement may not be amended, modified, altered, or charged in any respect, except by a further agreement in writing duly executed by eac h of the parties hereto. IN WITNESS WHEREOF , the parties hereto have caused this Agreement to be duly executed on their behalf this _____ day of __________, 201_. THE CITY OF DELRAY BEACH , ATTEST: a Florida Municipal Corporation _______________________________ By:_______________________________ City Clerk Nelson S. McDuffie Approved as to form: _______________________________ City Attorney LICENSEE By:______________________________ (CORPORATE SEAL) Name Printed:_____________________ Title:_____________________________ STATE OF ________________ COUNTY OF ______________ The foregoing instrument was acknowledged before me this _____ day of ___________, 201_, by ____________________________, as _________________________ (name of officer or agent, title of officer or agent), of _________________________________ (name of corporation acknowledging), a ________________________(state or place of incorporation) corporation, on behalf of the corporation. He/She is personally known to me or has produced _______________________ (type of identification) as identification. _____________________________ Signature of Notary Public – State of Florida Breathe Restaurant & Lounge Valet Parking License A greement EXHIBIT A INSURANCE REQUIREMENTS FORM 1 Workers' Compensation per the Statutory limits of the State of Florida to inc lude Employer's Liability Insurance with limits of at least $100,000/$500,000/$100,000. 2 Garage Liability Insurance of at least $1,000,000 combined single limits pe r occurrence to protect the City against all risks of injury to persons (including deat h) or damage to property wherever located resulting from any action or operation under the contract or in connection with the work. This policy is to provide coverage for premises /operations including auto liability, independent contractors, broad form contractual l iability, products/completed operations. 3 Garage Keepers Insurance with limits of no less than $60,000 per auto, with an annual aggregate of $500,000. 4 Automobile Liability of at least $300,000 combined single limits per oc currence for owned/nonowned/hired automobiles connected with the business. 5 The City of Delray Beach and PRIVATE LOT OWNERS must be named as additional insured on the liability policies; and it must be stated on the certifi cate. 6 Thirty (30) days written cancellation notice required. 7 Best's guide rating B+, VIII or better, latest edition. Valet Lot Subject Property 3 space Valet NW 1 ST ST NW 5 TH AV E N W 4T H A V E NW 3 R D A VE W ATLANTI C AVE SW 4 T H A V E SW 5 TH AV E AT L A N T I C G R O V E W A Y N City Of Delray Beach Environmental Services Department Engineering/GIS MEMORANDUM TO:Mayor and City Commissioners FROM:David T. Harden, City Manager DATE:November 29, 2011 SUBJECT:AGENDA ITEM 9.G. - REGULAR COMMISSION MEETING OF DECEMBER 6, 2011 APPOINTMENT TO THE GREEN IMPLEMENTATION ADVANCEMENT BOARD ITEM BEFORE COMMISSION This item is before the City Commission for an appo intment to the Green Implementation Advancement Board. BACKGROUND There is a vacancy on the Green Implementation Adva ncement Board for a regular member due to the resignation of Ms. Isabelle Alarie. Ms. Alarie was appointed at the City Commission meeting on November 15, 2011. However, she decided to remain o n the Board of Adjustment. The term is unexpired ending July 31, 2012. On June 2, 2009, the Delray Beach City Commission a dopted Resolution No. 24-09 establishing the Green Task Force for the purpose of making recommen dations to the City Commission regarding ways to improve the environmental sustainability of City programs, services, equipment and facilities; strategies for improving the environmental sustaina bility of the community; incentives for residents, businesses, and organizations to practice environme ntal conservation including recycling; proposed means to enhance water and energy conservation; ide as for promotion of tree planting and xeriscaping; best practices to be considered for implementation in Delray Beach, including long-term strategies; and proposed revisions to City ordinances to address Gr een technologies. The Commission later amended the number of board members and changed the board's name to the Green Implementation Advancement Board. The Green Implementation Advancement Board shall co nsist of seven (7) regular members and two (2) alternate members. All members shall have expertise or an interest in environmental conservation and sustainability and shall be residents of or own pro perty in the City, own a business within the City, or be an officer, director or manager of a business locat ed within the City. The following individuals have submitted applicatio ns and would like to be considered for appointment: (See Exhibit A attached) A check for code violations and/or municipal liens was conducted. None were found. Voter registration verification was completed and all are registered. Based on the rotation system, the appointment will be made by Mayor McDuffie (Seat #5) for one (1) regular member to serve an unexpired term ending Ju ly 31, 2012. RECOMMENDATION Recommend appointment of one (1) regular member to the Green Implementation Advancement Board to serve an unexpired term ending July 31, 2012. 10/11 GREEN IMPLEMENTATION ADVANCEMENT BOARD TERM EXPIRES NAME & ADDRESS OCCUPATION 07/31/2012 Appt 08/04/09 Reappt 07/20/10 Ana DeMelo Project Manager/Civil Engineering 07/31/2013 Appt 08/04/09 Reappt 06/21/11 David Hawke, Chair Architect 07/31/2012 Unexp Appt Vacant 07/31/2012 Appt 08/04/09 Reappt 07/20/10 Jayne King, Vice Chair Master Gardener/Educator 07/31/2013 Unexp Appt 04/05/11 reg Unexp Alt 03/02/10 Reappt 06/21/11 Stephanie “Chloe” Bedenbaugh Human Resources 07/31/2012 Unexp Appt 06/21/11 Michael Marcus Recycling-Managing Partner 07/31/2013 Unexp Appt 04/21/11 Reappt 07/05/11 Jeff Benavides Sustainability Project Manager ALTERNATE MEMBERS 07/31/2013 Unexp 05/03/11 Reappt 06/21/11 Yalmaz Siddiqui Environmental Strategy Advisor 07/31/2013 Appt 07/20/10 reg Appt 08/16/11 alt Laura Reines Director/Special Events Coordinator S/City Clerk/Board 11/Green Implementation Advancem ent Board CITY REPRESENTATIVE: Randal Krejcarek 243-7322 Richard Reade 243-7009 GREEN IMPLEMENTATION ADVANCEMENT BOARD EXHIBIT A Alberto Chuecos Director of Operations Jeffrey Conley Architecture/Engineering-Principal Lillian Stajnbaher Ecologic Advisor-Managing Principal MEMORANDUM TO:Mayor and City Commissioners FROM:David T. Harden, City Manager DATE:November 29, 2011 SUBJECT:AGENDA ITEM 9.H. - REGULAR COMMISSION MEETING OF DECEMBER 6, 2011 APPOINTMENT TO THE EDUCATION BOARD ITEM BEFORE COMMISSION This item is before the City Commission for an appo intment to the Education Board. BACKGROUND There is a vacancy on the Education Board for a reg ular member due to the resignation of Ms. Lydia Carreiro. The term is unexpired ending July 31, 201 3. Members of the Education Board must be a resident o f the City, own property, own or operate a business within the City or have a child attending Delray Beach public schools. It is the intent, whenever possible, that the membership include pers ons with a background in business, real estate and/or education. The following individuals have submitted applicatio ns and would like to be considered for appointment: (See Exhibit “A” attached) A check for code violations and/or municipal liens was conducted. None were found. Voter registration verification was completed and all are registered. Based on the rotation system, the appointment will be made by Mayor McDuffie (Seat #5) for one (1) regular member to serve an unexpired term ending Ju ly 31, 2013. RECOMMENDATION Recommend appointment of one (1) regular member to serve on the Education Board for an unexpired term ending July 31, 2013. EDUCATION BOARD EXHIBIT A Mary-Elizabeth Cohn Education/Sales & Consultant Claudia Flores Banking-Assistant Vice President Julia Kadel Director of Admissions Sandra Owens Educator Kevin Warner Educator (currently serving on the Police Advisory Board) 11/11 EDUCATION BOARD TERM EXPIRES NAME & ADDRESS OCCUPATION 07/31/2013 Appt 07/05/11 LeAnne DeRigne Educator 07/31/2012 Unexp Appt 04/21/11 Jose Herrera Special Events Coordinator 07/31/2012 Appt 07/15/08 Reappt 07/20/10 Derline Pierre-Louis, Vice Chair President/Plan & Budget Reviewer 07/31/2012 Unexp Appt 10/19/10 Amanda Orndorff Educator 07/31/2012 Appt 07/20/10 Debra Kaiser Senior Director 07/31/2012 Unexp Appt 11/15/11 Angela Burns Educator 7/31/2013 Unexp Appt Vacant 07/31/2013 Appt 08/02/11 Shannon Schwartz Educator 07/31/2013 Appt 06/21/11 Isabel Make Educator/Consultant 07/31/2013 Appt 08/02/11 Lee Cohen Educator 07/31/2013 Unexp Appt 12/07/10 Reappt 06/21/11 Myra Leavy Bazemore Educator STUDENT MEMBERS (one term limit) 7/31/2013 Appt 06/21/11 2 YEAR TERM Madison Aracri Student 7/31/2012 Appt 07/19/11 1 YEAR TERM Trevis Pridgen Student CITY REPRESENTATIVE: Janet Meeks – Education Coordinator 243-7231 COMMISSION LIAISON: MEMORANDUM TO:Mayor and City Commissioners FROM:Lula Butler, Director, Community Improvement THROUGH:David Harden, City Manager DATE:November 23, 2011 SUBJECT:AGENDA ITEM 10.A. - REGULAR COMMISSION MEETING OF DECEMBER 6, 2011 CONSOLIDATED ANNUAL PERFORMANCE AND APPRAISAL REPORT (CA PER) ITEM BEFORE COMMISSION Request for City Commission approval of the 2010-2011 Consolidated Annual Performance and Evaluation Report (CAPER) required by the United St ates Housing and Urban Development (HUD) for utilization of federal grant funds. BACKGROUND The Consolidated Annual Performance and Evaluation Report (CAPER) serves to meet performance reporting requirements by the Department of Housing and Urban Development (HUD) pursuant to the regulations established under 24 CFR 91.520. The CA PER covers the period of October 1, 2010 through September 30, 2011 in the reporting on HUD sponsored activities as specified in the City’s 2010-2011 Action Plan. The CAPER further serves as an update on the goals and objectives identified in the City’s Consolidated Five-Year Plan (2010-201 5). In accordance with HUD requirements, the CAPER is a vailable to the general public for review and commentary for a period of not less than fifteen da ys (November 13 – November 28, 2011) prior to submittal to HUD. No public comments were receive d during this time frame. RECOMMENDATION Staff recommends approval of the CAPER pursuant to regulations established under 24 CFR 91.520 for the rating period of October 1, 2010 through Septem ber 30, 2011 to meet performance reporting requirements of the Department of Housing and Urban Development. Go a l Ac t u a l Go a l Ac t u a l Go a l Ac t u a l Go a l Ac t u a l Go a l Ac t u a l Go a l Ac t u a l 000 00 #### 000 00 #### 03 Public Facilities and Improvements (General) 570.201(c)000 00 #### 03A Senior Centers 570.201(c)000 00 #### 03B Handicapped Centers 570.201(c)000 00 #### 03C Homeless Facilities (not operating costs) 570.201(c)000 00 #### 03D Youth Centers 570.201(c)000 00 #### 03E Neighborhood Facilities 570.201(c)000000 00 #### 03F Parks, Recreational Facilities 570.201(c)000 00 #### 03G Parking Facilities 570.201©000 00 #### 03H Solid Waste Disposal Improvements 570.201(c)000 00 #### 03I Flood Drain Improvements 570.201(c)000 00 #### 03J Water/Sewer Improvements 570.201(c)000 00 #### 03K Street Improvements 570.201(c)000110 11 100%M43,958YC 03L Sidewalks 570.201(c)000101 20 0 %M 127,118YC 03M Child Care Centers 570.201(c)000 00 #### 03N Tree Planting 570.201(c)000 00 #### 03O Fire Stations/Equipment 570.201(c)000 00 #### 03P Health Facilities 570.201(c)000 00 #### 03Q Abused and Neglected Children Facilities 570.201(c)000 00 #### 03R Asbestos Removal 570.201(c)000 00 #### 03S Facilities for AIDS Patients (not operating costs) 570.201(c)000 00 #### 03T Operating Costs of Homeless/AIDS Patients Programs 000 00 #### 1 001 0000 00 ####H0N C 000 00 #### 05 Public Services (General) 570.201(e)000 00 #### 05A Senior Services 570.201(e)000 00 #### 05B Handicapped Services 570.201(e)000 00 #### 05C Legal Services 570.201(E)000 00 #### 05D Youth Services 570.201(e)000 00 #### 05E Transportation Services 570.201(e)000 00 #### 05F Substance Abuse Services 570.201(e)000 00 #### 05G Battered and Abused Spouses 570.201(e)000 00 #### 05H Employment Training 570.201(e)000 00 #### 05I Crime Awareness 570.201(e)000 00 #### 05J Fair Housing Activities (if CDBG, then subject to 570.201(e)2002000308930 6089148%H13,000YC 05K Tenant/Landlord Counseling 570.201(e)5005000308 30827%H6,500YC 05L Child Care Services 570.201(e)2000200007001036700 1400103674%H160,000YC 05M Health Services 570.201(e)000 00 #### 05N Abused and Neglected Children 570.201(e)000 00 #### 05O Mental Health Services 570.201(e)000 00 #### 05P Screening for Lead-Based Paint/Lead Hazards Poison 570.201 000 00 #### 05Q Subsistence Payments 570.204 000 00 #### 05R Homeownership Assistance (not direct) 570.204 000 00 #### 05S Rental Housing Subsidies (if HOME, not part of 5% 570.204 000 00 ####L0N O 05T Security Deposits (if HOME, not part of 5% Admin c 000 00 #### Fu n d S o u r c e Ga p % o f G o a l Pr i o r i t y N e e d : H, M , L Pl a n t o F u n d ? Y/ N Only complete blue sections. Year 3 Pu b l i c S e r v i c e s Year 4Year 5 Cumulative 04 Clearance and Demolition 570.201(d) 04A Clean-up of Contaminated Sites 570.201(d) Pu b l i c F a c i l i t i e s a n d I m p r o v e m e n t s Ne e d s Cu r r e n t 01 Acquisition of Real Property 570.201(a) 02 Disposition 570.201(b) CPMPVersion 1.3 Do l l a r s t o Ad d r e s s Jurisdiction Community Development Needs 5-Year Quantities Year 1Year 2 CommunityDev 1 CPMP 000 00 #### 000 00 #### 000 00 #### 000 00 #### 000 00 #### 000 00 #### 000000 00 ####M0N O 000 00 #### 14A Rehab; Single-Unit Residential 570.202 9009015912 27933%H150,000YC 14B Rehab; Multi-Unit Residential 570.202 000 00 #### 14C Public Housing Modernization 570.202 000 00 #### 14D Rehab; Other Publicly-Owned Residential Buildings 570.202 000 00 #### 14E Rehab; Publicly or Privately-Owned Commercial/Indu 570.20 2 000 00 #### 14F Energy Efficiency Improvements 570.202 000 00 #### 14G Acquisition - for Rehabilitation 570.202 000 00 #### 14H Rehabilitation Administration 570.202 000 00 ####H182,982YC 14I Lead-Based/Lead Hazard Test/Abate 570.202 0000 00 ####H0Y C 000 00 #### 000 00 #### 000 00 #### 17A CI Land Acquisition/Disposition 570.203(a)000 00 #### 17B CI Infrastructure Development 570.203(a)000 00 #### 17C CI Building Acquisition, Construction, Rehabilitat 570.203(a)000 00 #### 17D Other Commercial/Industrial Improvements 570.203(a)000 00 #### 18A ED Direct Financial Assistance to For-Profits 570.203(b)606220 22 100%M62,000YC 18B ED Technical Assistance 570.203(b)303110 11 100%M7,500YC 18C Micro-Enterprise Assistance 000 00 #### 19A HOME Admin/Planning Costs of PJ (not part of 5% Ad 000 00 #### 19B HOME CHDO Operating Costs (not part of 5% Admin ca 000 00 #### 19C CDBG Non-profit Organization Capacity Building 000 00 #### 19D CDBG Assistance to Institutes of Higher Education 000 00 #### 19E CDBG Operation and Repair of Foreclosed Property 000 00 #### 19F Planned Repayment of Section 108 Loan Principal 000 00 #### 19G Unplanned Repayment of Section 108 Loan Principal 000 00 #### 19H State CDBG Technical Assistance to Grantees 000 00 #### 000 00 #### 21A General Program Administration 570.206 000 00 ####H208,530YC 21B Indirect Costs 570.206 000 00 #### 21D Fair Housing Activities (subject to 20% Admin cap) 570.206 000 00 #### 21E Submissions or Applications for Federal Programs 570.206 000 00 #### 21F HOME Rental Subsidy Payments (subject to 5% cap)000 00 #### 21G HOME Security Deposits (subject to 5% cap)000 00 #### 21H HOME Admin/Planning Costs of PJ (subject to 5% cap 000 00 #### 21I HOME CHDO Operating Expenses (subject to 5% cap)000 00 #### 000 00 #### 31J Facility based housing – development 000 00 #### 31K Facility based housing - operations 000 00 #### 31G Short term rent mortgage utility payments 000 00 #### 31F Tenant based rental assistance 000 00 #### 31E Supportive service 000 00 #### 31I Housing information services 000 00 #### 31H Resource identification 000 00 #### 31B Administration - grantee 000 00 #### 31D Administration - project sponsor 000 00 #### 280927001097801146743 0000000 1523114675%Totals 20 Planning 570.205 HO P W A 15 Code Enforcement 570.202(c) 09 Loss of Rental Income 570.201(j) 08 Relocation 570.201(i) 22 Unprogrammed Funds 13 Direct Homeownership Assistance 570.201(n) 12 Construction of Housing 570.201(m) 11 Privately Owned Utilities 570.201(l) 10 Removal of Architectural Barriers 570.201(k) 07 Urban Renewal Completion 570.201(h) 06 Interim Assistance 570.201(f) 16A Residential Historic Preservation 570.202(d) 16B Non-Residential Historic Preservation 570.202(d) CommunityDev 2 CPMP MEMORANDUM TO:Mayor and City Commissioners FROM:David T. Harden, City Manager DATE:November 28, 2011 SUBJECT:AGENDA ITEM 10.B. - REGULAR COMMISSION MEETING OF DECEMBER 6, 2011 ORDINANCE NO. 43 -11 ITEM BEFORE COMMISSION This ordinance is before Commission for second read ing to consider amending Ordinance No. 70-89 which revises Section 1, “Designation”, and Section 2, “Requirements of Designation” of Ordinance 70- 89, and an amendment to Land Development Regulation s (LDR) Section 4.5.1(K)(2), “Designation of Historic Sites”, to provide for the revised legal d escription of the Fontaine Fox Designation. BACKGROUND At the first reading on November 15, 2011, the Comm ission passed Ordinance No. 43-11. RECOMMENDATION Recommend approval of Ordinance No. 43-11 on second and final reading. ORDINANCE NO. 43-11 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AMENDING ORDINANCE NO. 70-89 THAT PROVIDED FOR THE HISTORIC DESIGNATION OF THE FONTAINE FOX HOUSE AND PROPERTY; AMENDING THE LAND DEVELOPMENT REGULATIONS OF THE CODE OF ORDINANCES OF THE CITY OF DELRAY BEACH, FLORIDA, BY AMENDING ARTICLE 4.5, “OVERLAY AND ENVIRONMENTAL MANAGEMENT DISTRICTS”, SECTION 4.5.1, “HISTORIC PRESERVATION SITES AND DISTRICTS”, SUBSECTION (K), “DESIGNATION OF HISTORIC SITES”, PROVIDING A SAVING CLAUSE, A GENERAL REPEALER CLAUSE, AND AN EFFECTIVE DATE. WHEREAS, Ordinance No. 70-89 was adopted on October 24, 1989 and provided for the historic designation of the Fontaine Fox House and property as described in L.D.R. Section 4.5.1(K)(2), and allowed the development of a total of 3 dwelling units on the site including the development of a house on the east side of A-1-A, provided cer tain conditions were met; and WHEREAS, there currently exists the Fontaine Fox ho use and a house on the east side of A- 1-A within the historically designated area; and WHEREAS, the current owner of the Fontaine Fox hous e and lands west of A-1-A wishes to amend Ordinance No. 70-89. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSI ON OF THE CITY OF DELRAY BEACH, FLORIDA, AS FOLLOWS: Section 1 . That Section 1, “Designation” of Ordinance No. 7 0-89 of the City of Delray Beach is hereby repealed in its entirety and replac ed by a new Section 1, “Designation” to read as follows: Designation The Fontaine Fox House designation consists of Lot s 1 and 2 of the Ocean Apple Estates plat, the South fifty feet (50’) of Lots 1 and 2 of the Apple Ocean Estates, Plat II, and Lot 3 of the Ocean Apple Estates, Plat II. The Fontaine F ox House is located on Lot 2, Ocean Apple Estates at 610 North Ocean Boulevard. Section 2 . That Section 2, “Requirements of Designation” of Ordinance No. 70-89 of the City of Delray Beach is hereby repealed in its enti rety and replaced by a new Section 2, “Requirements and Restrictions of Designation” to read as f ollows: Requirements and Restrictions of Designation Not withstanding any provision of the City Code of the City of Delray Beach and any other provision of this Ordinance, the following requirements s hall apply to the use and development of the Individually Designated Fontaine Fox site: 2 ORD. NO. 43-11 (1) No more than three (3) dwelling units shall be used, developed, or located within the boundaries of the Fontaine Fox Historic Site. Two d welling units currently exist on the historic site, with one unit on Lot 1, Ocean Apple Estates, and th e other on Lot 2, Ocean Apple Estates. An additional dwelling unit may be constructed on Lot 3, Ocean A pple Estates, Plat II. (2) No dwelling unit used or developed on that portio n of the Fontaine Fox Historic Site which lies east of State Road A-1-A shall contain m ore than two thousand and four hundred (2,400) square feet of gross floor area. (3) No dwelling unit, or any portion thereof, shal l be developed within the south fifty feet (50’) of Lots 1 and 2 of the Ocean Apple Estates, Plat II. Section 3. That Article 4.5, “Historic Preservation Sites and Districts”, Section 4.5.1, “Historic Preservation Sites and Districts”, Subsection (K), “Designation of Historic Sites”, of the Land Develo pment Regulations of the City of Delray Beach, Florida, shall here by be amended to read as follows: (K) Designation of Historic Sites : The following Historic Sites are hereby affirmed or established: (1) THE SCOTT HOUSE , 19 Andrews Avenue, located on the North 50 feet o f the West 110 feet of the South 100 feet, less the West 10 feet o f the Beach Lot 15, Subdivision of the Fractional E ast Half of Section 16, Township 46 South, Range 43 East, De lray Beach, Palm Beach County, Florida. (Original designation by Ordinance 17-90, May 22, 1990). (2) FONTAINE FOX HOUSE , 610 N. Ocean Boulevard, located on the South Half of Lot 4 lying West of State Road A1A, (less the West 435.5 feet thereof, less the West 25 feet thereof for roa d Right - of -way), that part of the South 10 feet of Lo t 3 and the North Half of Lot 4 lying West of State Road A1A (less the West 25 feet thereof for road Right -of -way), and Lot 3 (less the South 10 feet thereof, le ss the West 25 feet thereof for road Right -of -way) (less Right -of -way of State Road A1A, missin g from original description) of Block E, Revised Plat of Blocks D and E, Palm B each Shore Acres, Delray Beach, Palm Beach County, Florida as Recorded in Plat Book 7, Page 38 , of the Public Records of Palm Beach County, Flori da. And that part of the South 1 0 feet of Lot 3 lying East of the Right -of -way of State Road A1A. Lot 2 of Ocean Apple Estates, and whose historically designated bo undary consists of Lots 1 and 2, Ocean Apple Estate s, and a portion of Ocean Apple Estates, Plat II descr ibed as the South 50 feet of Lots 1 and 2, and Lot 3. (Original Designation by Ordinance 70-89, October 2 4, 1989; Amended by Ordinance 43-11, December 6, 2011) (3) SITE OF SCHOOL NO. 4 DELRAY COLORED , located on Block 28, Lot 2, N.W. 5th Avenue. (Original designation by Ordinance 16-89) (4) GREATER MOUNT OLIVE MISSIONARY BAPTIST CHURCH , 40 N.W. 4th Avenue, located on Lot 7, Block 28, Delray Beach. (Original d esignation by Ordinance 17-89) (5) ST. PAUL AFRICAN METHODIST EPISCOPAL CHURCH , 119 N.W. 5th Avenue, located on Lot 5, Block 27, Delray Beach (Original designati on by Ordinance 18-89) (6) THE FREE AND ACCEPTED MASONS OF DELRAY BEACH LODGE 275 , 85 N.W. 5th Avenue, located on Lot 1, Block 28, Delray Beach (Ori ginally designation by Ordinance 19-89) 3 ORD. NO. 43-11 (7) ST. MATTHEW EPISCOPAL CHURCH , 404 S.W. 3rd Street, located on Lot 1, Block 32, Delray Beach (Original designation by Ordinance 20-89) (8) THE KOCH HOUSE , 777 North Ocean Boulevard. Palm Beach Shore Acre s, Lot 21, Block D, Delray Beach, Palm Beach County (9) SUNDY FEED STORE , located on the South 85 feet of the North 153 fee t of Lot 1, Block 84, Delray Beach, Palm Beach County. (10) HISTORIC DEPOT SQUARE , located on a parcel of land lying in Section 18, Township 46 South, Range 43 East, City of Delray Beach (Original desig nation by Ordinance 119-88) (11) THE COLONY HOTEL AND THE COLONY HOTEL NORTH ANNEX, located on the South 12 feet of Lot 18, Alley South of Lot 18, East 25 feet of Lot 21 and Lots 22, 23, 24 and 25, Inclusive, Block 108. And Lots 5, 6 and 7, Less 5 foot Road R/W, Block 108, Town of Delray, with the designation pertaining to the buildings only and not the gro unds. (12) MILTON-MYERS POST NO. 65, THE AMERICAN LEGION OF TH E UNITED STATES , 263 N.E. 5th Avenue, located on Lots 5, 14 and 15 , Block 106, Delray Beach, formerly Town of Linton, Palm Beach County, Florida. (13) SOLOMON D. SPADY HOUSE , 170 N.W. 5th Avenue, located on Lots 5, 6 and the north 26.25 feet of Lot 7, Block 19, Delray Beach, formerly To wn of Linton, Palm Beach County, Florida. (14) THE SUSAN WILLIAMS HOUSE , located at 154 N.W. 5 th Avenue, Delray Beach, Florida; more particularly described as follows: so uth 12 feet of Lot 7 and Lot 8, Melvin S. Burd Subd ivision, as recorded in Plat Book 11, Page 73, of the Public Records of Palm Beach County, Florida (154 N.W. 5 th Avenue). (15) THE BLANK HOUSE , 85 S.E. 6th Avenue, located on Lots 12, 13, and 1 4, Block 117, Delray Beach, formerly Town of Linton, Palm Beach County, Fl orida. (16) THE MONTEREY HOUSE , 20 North Swinton Avenue, located on Lot 12, Block 60, Delray Beach, formerly Town of Linton, Palm Beach County, Fl orida. (17) THE HISTORIC BUNGALOW , 24 North Swinton Avenue, located south 50 feet of Lot 11, Block 60, Delray Beach, formerly Town of Linton, Palm Bea ch County, Florida. (18) THE SANDOWAY HOUSE , 142 South Ocean Boulevard. Beach Lots Delray, th e South 73 feet of the North 100 feet of Lot 24, less the W est 355 feet, as recorded in Plat Book 1, Page 25, of the Public Records of Palm Beach County, Florida. (19) THE TRINITY EVANGELICAL LUTHERAN CHURCH CHAPEL , located on a portion of the Trinity Evangelical Lutheran Church property at 400 North Swinton Avenue, Delray Beach, Florida; more particularly described as the East ½ of Lot 12, Section 8-46-43, Delray Beach, Palm Beac h County, Florida. The chapel is the only building i n the church complex receiving an historic designat ion. The church complex is located at the northwest corner of Lake Ida Road and Swinton Avenue. 4 ORD. NO. 43-11 (20) THE TURNER HOUSE , located at 145 N.E. 6th Avenue, Delray Beach, Flo rida; more particularly described as the South 27.6 feet of Lo t 5, less the West 5 feet SR R/W, Lots 6 & 7, less the West 5 feet SR R/W, of Block 115, as recorded in Plat Bo ok 1 at Page 3 of the Public Records of Palm Beach County, Florida. (21) THE PRICE HOUSE , located at 1109 Sea Spray Avenue, Delray Beach, F lorida; more particularly described as Lot 11, Sea Spray Estates , as recorded in Plat Book 21 at Page 15 of the Pub lic Records of Palm Beach County, Florida. (22) THE FELLOWSHIP HALL OF THE FIRST PRESBYTERIAN CHURC H OF DELRAY BEACH , located at 36 Bronson Street, Delray Beach, Flori da; more particularly described as Lots 16, 17, 18 and 19, Block 3, Ocean Park Subdivision, as recorded in Plat Book 5 at Page 15 of the Publi c Records of Palm Beach County, Florida. (23) THE ATLANTIC AVENUE BRIDGE (State Structure #930864 ), located at East Atlantic Avenue and the Intracoastal Waterway in the City of Delray Beach, Palm Beach County, Florida. (24) THE GEORGE BUSH BOULEVARD BRIDGE, formerly known as the N.E. 8 th Street Bridge, (State Structure #930026), located at George Bush Boulevard and the Intracoa stal Waterway in the City of Delray Beach, Palm Beach County, Florida. (25) THE WATER HOUSE , located at 916 and 918 Northeast 5 th Street, Delray Beach, Florida; more particularly described as the West 84.82 feet of Lot 37, Las Palmas, Delray Beach, Florida, accor ding to the Plat thereof recorded in the Office of the Cler k of the Circuit Court in and for Palm Beach County , Florida, in Plat Book 10 at Page 68. (26) THE ONEAL HOUSE , located at 910 N.E. 2nd Avenue, Delray Beach, Flo rida, more particularly described as follows: Lots 1, 2, 3, 28 and 29, Bloc k 10, Dell Park, Delray Beach, Palm Beach County, F lorida, according to the Plat thereof, recorded in Plat Boo k 8 at Page 56 of the Public Records of Palm Beach County, Florida. (27) THE AMELUNG HOUSE , located at 102 NE 12 th Street, Delray Beach, Florida, more particularly described as follows: Lot 9, Block 6, Dell Park, according to the Plat recorded in Plat B ook 8, Page 56, recorded in the Public Records of Palm Bea ch County, Florida; said land situate, lying and be ing in Palm Beach County, Florida. (28) THE DEWITT ESTATE , located at 1110 North Swinton Avenue, Delray Beac h, Florida, more particularly described as the East 365.69 feet of Lot 8 (less the West 40.00 feet of the South 20 .00 feet of said East 365.69 feet of Lot 8) Subdivision of S outh half of East half of Lot 8, Section 8, Townshi p 46 South, Range 43 East, according to the Plat thereof , as recorded in Plat Book 16, Page 80, of the Publ ic Records of Palm Beach County, Florida. (29) THE HARTMAN HOUSE , located at 302 N.E. 7 th Avenue, Delray Beach, Florida, more particularly described as follows: Lots 13 and 14, Block 113, Highland Park according to the map or p lat thereof as recorded in Plat Book 2, Page 79, of the Public Reco rds of Palm Beach County, Florida. (30) THE SEWELL C. BIGGS HOUSE , located at 212 Seabreeze Avenue, Delray Beach, Florida, more particularly described as follows: L ot 21 and the West 35 feet of Lot 22, Delray Beach 5 ORD. NO. 43-11 Esplanade, according to the plat thereof, as record ed in Plat Book 18, Page 39, Public Records of Palm Bea ch County, Florida. Section 4. That should any section or provision of this ordin ance or any portion thereof, any paragraph, sentence, or word be declared by a court of competent jurisdiction to be invalid, such decision shall not affect the validity of the remai nder hereof as a whole or part thereof other than t he part declared to be invalid. Section 5. That all ordinances or parts of ordinances in conf lict herewith be, and the same are hereby repealed. Section 6 . That this ordinance shall become effective upon r ecordation of the Ocean Apple Estates, Plat II. PASSED AND ADOPTED in regular session on second an d final reading on this the _____ day of ___________________, 201___. ____________________________________ ATTEST M A Y O R _______________________________ City Clerk First Reading__________________ Second Reading________________ MEMORANDUM TO:Mayor and City Commissioners FROM:Amy E. Alvarez, Historic Preservation Planner Paul Dorling, AICP, Director of Planning and Zoning THROUGH:David T. Harden, City Manager DATE:November 9, 2011 SUBJECT:AGENDA ITEM 12.A. - REGULAR COMMISSION MEETING OF NOVEMBER 15, 2011 ORDINANCE NO. 43 -11 ITEM BEFORE COMMISSION The item before Commission is consideration of Ordinance 43-11 which amends the legal description o f the Fontaine Fox House historic designation in LDR Section 4.5.1(K), and amends the legal des cription and development restrictions of the historically de signated Fontaine Fox House set forth in Ordinance 70-89. BACKGROUND The Fontaine Fox historic designation presently consists of Lots 1, 2 and 3 of the Ocean Apple Estate s Plat (see attached map). The properties are located approximately 900’ south of George Bush Boule vard b etween Andrews Avenue and the Atlantic Ocean. Lot 1 is on the east side of Ocean Bouleva rd (615 North Ocean Boulevard) while lots 2 and 3 are on the west side of Ocean Boulevard (610 North Ocean Boulevard), between North Ocean Boulevard and Andrews Avenue. The property is zoned R-1-AAA (Single Family Residential) and is an individually listed property in the Local Registe r of Historic Places established by Ordinance 70-89. Ordinance 70-89 contains the stipulations that on Lot 1 (the oceanfront lot) one dwelling unit of no more than 2,400 square feet could be built (house erected in 1993) and that the entire Fontaine Fox designated site, which presently consists of three lots, not contain more than three dwel ling units (one house per lot). Ordinance 43-11 amends the aforenoted stipulations by revising “Section 1, Designation”, and “Se ction 2, Requirements of Designation” of Ordinance 70-89, as well as an Amendment to LDR Section 4.5.1 (K)(2), Designation of Historic Sites, to provide for the revised legal description of the Fontai ne Fox Designation. These changes are requested as Lot 3 of the Ocean Apple Estates Plat is being replatted into the neighboring Ocean Apple Estates, Plat II. Th e new plat will reconfigure the size of Lot 3, and shift the existing north fifty feet (50’) onto Lots 1 a nd 2 of Ocean Apple Estates, Plat II. While Lots 1 and 2, Ocean Apple Estates, Plat II are not locally designated parcels, the historic desi gnation of their Page 1of 2 Coversheet 11/28/2011 htt p ://itweba pp /A g endaIntranet/Bluesheet.as p x?ItemID=5130&Meetin g ID=337 new southern fifty feet (50’) will not be removed, and the overall boundary of the Fontaine Fox House designation will not be altered. Any future new development or improvements within the southern fi fty foot (50’) portion of Lots 1 and 2 will continue to be subject to HPB review. The attached map indic ates the existing and proposed lot configuration, along w ith the border of the historic designation. The Historic Preservation Board (HPB) held a Public Hearing and considered the subject request at its November 2, 2011 meeting where a recommendation of approval was made on a vote of 6-0. RECOMMENDATION Approve Ordinance 43-11, which amends Sections 1 and 2 of Ordinance 70-89, and amends LDR Section 4.5.1(K), and schedule the Second Reading and Public Hearing for the City Commission meeting of December 6, 2011. Page 2of 2 Coversheet 11/28/2011 htt p ://itweba pp /A g endaIntranet/Bluesheet.as p x?ItemID=5130&Meetin g ID=337 . HISTORIC PRESERVATION BOARD MEMORANDUM STAFF REPORT Applicants: Frank E. & Nilsa McKinney, Joshua C. & Katherine H. Littlefield Authorized Agent: GE Architecture, Inc., Gary P. Elio poulos Project Location: Lot 3, Ocean Apple Estates Fontaine Fox House, Individually Designated HPB Meeting Date: November 2, 2011 File No: 2012-005 ITEM BEFORE THE BOARD The item before the Board is an amendment to Ordinance 70 -89 that established the Fontaine Fox House historic site designation, pursuant to LDR Sectio n 4.5.1(B), and 4.5.1(K)(2). BACKGROUND & PROPOSAL DESCRIPTION The Fontaine Fox historic designation contains approxima tely 2.5 acres of land and presently consis ts of Lots 1, 2 and 3 of the Ocean Apple Estates Plat (se e attached map). The properties are located approximately 900 ¶south of George Bush Boulevard between Andrews Avenue a nd the Atlantic Ocean. Lot 1 is on the east side of Ocean Boulevard (615 North Ocean Bou levard ) while lots 2 and 3 are west Ocean Boulevard (610 N or th Ocean Boulevard), between North Ocean Boulevard and Andrews Avenue. Zoned R-1-AAA (Sin gle Family Residential), the property (including all three lots) is an individually list ed property in the on the Local Register of Historic Places as established by Ordinance 70-89. Associated with the property, on the east side of North Ocean Boulevard, (Lot 1) is a 2,400 square foot home constructed in 19 93 . The Historic Preservation Board recommended approval of Ordinance 70-89 (Fontaine Fox historic designation) to the City Commission on September 20 , 19 89 with the stipulations that on Lot 1 (the oceanfront lot) one dwelling unit of no m ore than 2,400 square feet could be built and that the Fontaine Fox site be subdivided into no more than three lots for no more tha n three dwelling units (one house per lot). The Ordinance was adopted by the City of Delray Beach on October 24, 1989. In 2002, an amendment to Ordinance 70-89 was proposed an d reviewed as Ordinance 13 -02. The proposal was for the removal of historic designation from Lot 3 and a portion of Lot 2, and to alter the previous density restriction to allow Lot 3 and that same portion of Lot 2 to be subdivided into a total of four separate parcels to acco mmodate a development plan for single family homes (perpendicular to the extant historic structur e). The historic designation for the remaining portion of Lot 2, the lot that contains the Fontaine Fox House and its contributing outbuildings, as well as Lot 1 on the ocean side, would not have been altered. The proposed amendment to the Ordinance was denied at First Reading b y the City Commission at its meeting of May 7, 2002. The currently proposed amendment will require revis LRQRI³6HFWLRQ'HVLJQDWLRQ´DQG ³6HFWLRQ5HTXLUHPHQWVRI'HVLJQDWLRQ´RI2UGLQ ance 70-89, as well as an Amendment to LDR Section 4.5.1(K)(2), Designation of Historic Sites, to p rovide for the revised legal description of the Fontaine Fox Designation. These changes are necessary as Lot 3 of the Ocean Apple Amendment of Ordinance 70-89; 2012-005 HPB Meeting November 2, 2011 Page 2 of 3 Estates Plat is being replatted into the neighboring Ocean Apple Estates, Plat II. Th e new plat ZLOOUHFRQILJXUHWKHVL]HRI/RWDQGVKLIWWKHH[LVWL QJQRUWKILIW\IHHW ¶ RQWR/RWVDQGRI Ocean Apple Estates, Plat II. While Lots 1 and 2, Ocea n Apple Estates, Plat II are not presently designated parcels, the historic designation of the ir new southern ILIW\IHHW ¶ ZLOOQRWEH removed, and the overall boundary of the Fontaine Fox House designation will not be altered. Any new development or improvements within the souther QILIW\IRRW ¶ portion of Lots 1 and 2 will continue to be subject to HPB review. The attached map indicates the existing and proposed lot configuration, along with the border of t he historic designation. The amendment to Ordinance 70-89 is now before the Boa rd for consideration. ANALYSIS LDR Section 4.5.1, Historic Preservation Sites and D istricts (B), Criteria for Designation of Historic Sites or Di stricts (1) To qualify as a historic site, historic district, histori c structure, or historic interior, individual properties, structures, sites, or buildings, or groups of prope rties, structures, sites, or buildings must have significant character, interest, or value as part of the historical, cultural, aesthetic, and architectural heritage of the city, state, or nation. To qualify as a historic site, historic district, or historic structure, the property or properties must fulfill one or more of the criteria set forth in division (2) or (3) below; to qualify as a historic interior the interior must fulfill one or more of the criteria set forth in division (2) and meet the criteria set forth in divisions (3)(b) and (3)(d). (2) A building, structure, site, interior, or district w ill be deemed to have historical or cultural significance if it meets one or more of the following criteria: (a) Is associated in a significant way with the life or act ivities of a major person important in city, state, or national history (for example, the homest ead of a local founding family); (b) Is the site of a historic event with significant effe ct upon the city, state, or nation; (c) Is associated in a significant way with a major historic eve nt, whether cultural, economic, social, military, or political; (d) Exemplifies the historical, political, cultural, economi c, or social trends of the community in history; or, (e) Is associated in a significant way with a past or contin uing institution which has contributed substantially to the life of the city. (3) A building, structure, site, or district is deemed to have architectural or aesthetic significance if it fulfills one or more of the following criteria; except that to qualify as a historic interior, the interior must meet the criteria contained within divisions (3)(b) and (3)(d): (a) Portrays the environment in an era of history characterize d by one or more distinctive architectural styles; (b) Embodies those distinguishing characteristics of an arch itectural style, period, or method of construction; (c) Is a historic or outstanding work of a prominent architect , designer, landscape architect, or builder; or (d) Contains elements of design, detail, material, or cra ftsmanship of outstanding quality or which represented, in its time, a significant innovation or adaptation to the South Florida environment. (4) A building, structure, site, interior, or district w ill be deemed to have historic significance if, in addition to or in the place of the previously mentione d criteria, the building, structure, site, or zone meets historic development standards as defined by and listed in the regulations of and criteria for the National Register of Historic Places, as prep ared by the United States MEMORANDUM TO:Mayor and City Commissioners FROM:R. Brian Shutt, City Attorney DATE:November 29, 2011 SUBJECT:AGENDA ITEM 12.A. - REGULAR COMMISSION MEETING OF DECEMBER 6, 2011 ORDINANCE NO. 44 -11 ITEM BEFORE COMMISSION Adoption of Ordinance 44-11 regarding a proposed ch arter amendment related to Commission terms. BACKGROUND Pursuant to the direction given by Commission, at i ts November 8, 2011 workshop meeting, I have prepared the following charter amendment related to increasing the length of a term of a Commissioner/Mayor from 2 years to 3 years and prov iding that no Commissioner/Mayor who votes on this ordinance shall be allowed to exceed 3 consecu tive terms, which includes consecutive terms alread y served as of the date of the adoption of this Ordin ance. This charter amendment would be placed on th e ballot for the March 2012 election and, if passed, would be effective starting with the March 2013 election cycle. RECOMMENDATION Commission discretion. ORDINANCE NO. 44-11 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, PROVIDING FOR REVISIONS TO THE CHARTER OF THE CITY OF DELRAY BEACH BY AMENDING ARTICLE III, “LEGISLATIVE”, SECTION 3.02, “CITY COMMISSION: COMPOSITION, ELIGIBILITY, ELECTION, AND TERMS” AND SECTION 3.09, “TERM LIMITS”; AMENDING ARTICLE V, “ELECTIONS”, SECTION 5.02, “TYPES OF ELECTIONS”; TO PROVIDE FOR A CHANGE IN THE LENGTH OF A TERM FROM A TWO YEAR TERM TO A THREE YEAR TERM; PROVIDING FOR A REFERENDUM ELECTION TO BE HELD ON MARCH 13, 2012; PROVIDING A GENERAL REPEALER CLAUSE, A SAVING CLAUSE, AND AN EFFECTIVE DATE. WHEREAS, the governing body of a municipality may b y ordinance submit a proposed amendment to the Charter to the electors of the muni cipality; and WHEREAS, the City Commission of the City of Delray Beach deems it advisable to amend the Charter of the City to provide: (i) that the terms of office for the Mayor and other City Commission Members be extended from two years to three years . NOW THEREFORE, BE IT ORDAINED BY THE CITY COMMISS ION OF THE CITY OF DELRAY BEACH, FLORIDA AS FOLLOWS: Section 1. That Article III, “Legislative”, Section 3.02, “Ci ty Commission; Composition, Eligibility, Election and Terms”, be amended to read as follows: Section 3.02. CITY COMMISSION: COMPOSITION, ELIGIBI LITY, ELECTION, AND TERMS. (A) Composition and Term . The City Commission shall be composed of five (5 ) Commissioners, one of whom shall be duly elected Ma yor. All of them shall be elected at large for a term of two (2) three (3) years in the manner provided in this Charter. (B) Staggered Terms . Two (2) Commissioners shall be elected in even -numbered years, and two (2) Commissioners shall be elected i n odd numbered years. The Mayor may be elected in an even or odd numbered year. Two (2) Commission seats with terms expiring in 2 013 shall be filled by election in 2013 and every three years thereafter, and two (2) Commission seats with terms expiring in 2014 shall be filled by elec tion in 2014 and every three years thereafter. The Mayor’s term commencing in 2013 shall be filled by election in 2013 and every three years thereafter. (C) Length of Mayor’s Term . If a special or regular election is held to fill a vacancy in the office of Mayor, the duration of the Mayor’s term of office will be for two (2) years 2 ORD. NO. 44-11 commencing on the last Thursday in March p rior to the special election the remainder of the unexpired term . (D) Term as a Result of a Vacancy . In the event of vacancies, successors shall be appointed or elected in the manner provided in this Charter. Section 2. That Article III, “Legislative”, Section 3.09, “Te rm Limits”, be amended to read as follows: Section 3.09. TERM LIMITS. (A) Term Limit. Individual Commissioners, including the Mayor, sh all be prohibited from holding office for more than six (6 ) nine (9) consecutive years. The term “holding office” shall be defined as serving as Commissioner or Mayor. The term “consecutive years” shall not include any years served as a result of an appo intment. Effective for those elected in March of the year 2003 and thereafter, a Commissioner or May or may complete the entire term to which they were elected, if a term limit is reached during an elected term. Effective for those Commissioners and Mayor, who voted on this Ordinance, they will o nly be allowed to serve a total of three (3) consecutive terms, which will include consecutive t erms already served prior to the adoption of this Ordinance. In the event a Commissioner, who voted on this Ordinance, is elected Mayor, then any partial year term served as a Commissioner will not count toward the three consecutive term maximum. (B) One Year Hiatus. A person who has served the maximum amount of consecutive time allowed by this Charter as a Commi ssioner or Mayor shall not assume office again until the last Thursday in March of the year following the exp iration of his or her term of office. Section 3 . That Article V, “Elections”, Section 5.02, “Types of Elections”, be amended to read as follows: Section 5.02. TYPES OF ELECTIONS. Elections to be held in the City shall all be cond ucted on a nonpartisan basis without regard for or designation of political party affiliation. (A) Date of Nonpartisan Election . Nonpartisan elections shall be held on the second Tuesday in March of each year in which a ter m of the mayor or city commissioner expires (which, starting in 2013, will be every three years thereafter, for the mayor and commission seats 1 and 3; and 2014, and every three years thereafter, for commis sion seats 2 and 4). (B) Ties . In case of a tie in the nonpartisan election, a second nonpartisan election shall be held. (C) Special Election . All other municipal elections that may be held b y authority of this Charter, or of any law, shall be known as special electio ns. 3 ORD. NO. 44-11 Section 4 That this ordinance shall not be effective unless and until the same is approved by a majority of the electors of the City of Delray Beach, Florida, voting at the election to be held on March 13, 2012, for the purpose of appro ving or disapproving this ordinance. If a majority of the electors voting upon such a questio n approve the amendment, then the amendment shall be in full force and effect and shall apply t o the election held on March 12, 2013 and all elections thereafter. If a majority of the elector s voting upon such question disapprove such amendment(s), then the amendment(s) shall be null a nd void. The question to be submitted to the electors at such election shall be substantially as follows : Question One CHARTER AMENDMENT – LENGTH OF TERMS AND TERM LIMITS CURRENTLY, THE COMMISSION MEMBERS (INCLUDING THE MA YOR) SERVE TWO-YEAR TERMS, LIMITED TO THREE CONSECUTIVE TERMS. THE CHARTER AMENDMENT PROPOSES THREE-YEAR TERMS, LIMITED TO THREE CONSECUTIVE TERMS. IF PASSED THIS AMENDMENT SHALL APPLY TO THE COMMISSIONERS AND MAYO R ELECTED IN MARCH 2013 AND THEREAFTER. SHALL THE CHARTER AMENDMENT BE ADOPTED? _____YES (for approval) _____NO (against approval) Section 5. That upon approval of this ordinance by the electo rs as aforesaid, all ordinances or Charter provisions or parts of Charte r provisions in conflict shall be and the same are hereby repealed as of the effective date of this ordinance. Section 6 . That should any section or provision of this ordi nance or any portion thereof, any paragraph, sentence, clause or word be declared by a court of competent jurisdiction to be invalid, such decision shall not affect the vali dity of the remainder hereof as a whole or part hereof other than the part declared invalid. Section 7 . That this ordinance shall become effective upon i ts passage on second and final reading. The Charter Amendment shall take ef fect (and be applicable to the election) on March 12, 2013, if approved by a majority of the electors as pr ovided in Section 3 hereof. 4 ORD. NO. 44-11 PASSED AND ADOPTED in regular session on second an d final reading on this the ____________ day of ________________________, 2011. _____________________________ M A Y O R ATTEST: ____________________________ City Clerk First Reading __________________ Second Reading ________________ MEMORANDUM TO:Mayor and City Commissioners FROM:Ronald Hoggard, AICP, Principal Planner Mark McDonnell, AICP, Assistant Director Planning a nd Zoning THROUGH:City Manager DATE:November 21, 2011 SUBJECT:AGENDA ITEM 12.B. - REGULAR COMMISSION MEETING OF DECEMBER 6, 2011 ORDINANCE NO. 45 -11 ITEM BEFORE COMMISSION Consideration of a city-initiated amendment to the Land Development Regulat ions (LDRs) to correct outdated references concerning the conditional uses allowed within the Four Corners Overlay District. BACKGROUND The permitted, assessory and conditional uses allow ed within the Four Corners Overlay District are specified within the “Supplemental District Regulat ions” section of the General Commercial (GC) District through references to specific uses (by nu mber) in the Permitted, Assessory and Conditional Use sections of the District. Earlier this year, th ere was a change in the numbering of the uses liste d within the “Conditional Uses and Structures Allowed ” Section, which made the references used for the Four Corners Overlay District incorrect. The propos ed amendment corrects these references. Pursuant to LDR Section 2.4.5(M)(5), approval of an LDR amendment must be based upon a finding that the amendment is consistent with and furthers the Goals, Objectives, and Policies of the Comprehensive Plan. While the amendment does not sp ecifically further the Goals, Objectives, and Policies of the Comprehensive Plan, it is not incon sistent with them. REVIEW BY OTHERS The Planning and Zoning Board recommended approval on a 7 to 0 vote at its November 21, 2011 meeting. RECOMMENDATION By motion, approve Ordinance No. 45-11 on first rea ding for a City-initiated amendment to the Land Development Regulations, by adopting the findings o f fact and law contained in the staff report and finding that the amendment is consistent with the C omprehensive Plan and meets criteria set forth in Section 2.4.5(M) of the Land Development Regulation s. ORDINANCE NO. 45-11 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”, SUB-SUBSECTION (3), “FOUR CORNERS OVERLAY DISTRICT”; TO CORRECT OUTDATED REFERENCES THEREIN; PROVIDING A SAVING CLAUSE, A GENERAL REPEALER CLAUSE, AND AN EFFECTIVE DATE. WHEREAS, pursuant to LDR Section 1.1.6, the Plannin g and Zoning Board reviewed the proposed text amendment at a public hearing held on November 21, 2011 and voted 7 to 0 to recommend that the changes be approved; and WHEREAS, pursuant to Florida Statute 163.3174(4)(c), the Planning and Zoning Board, sitting as the Local Planning Agency, has determine d that the change is consistent with and furthers the goals, objectives and policies of the Comprehensive Pla n; and WHEREAS, the City Commission of the City of Delray Beach adopts the findings in the Planning and Zoning Staff Report; and WHEREAS, the City Commission of the City of Delray Beach finds the ordinance is consistent with the Comprehensive Plan. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSI ON OF THE CITY OF DELRAY BEACH, FLORIDA, AS FOLLOWS: Section 1 . That the recitations set forth above are incorporated he rein. Section 2 . That Section 4.4.9, “General Commercial (GC) Dis trict”, Subsection (D), “Supplemental District Regulations”, Sub-Subsection (3), “Four Corners Overlay District”, of the Land Development Regulations of the City of Delray Beach, Florida, be and the same is hereby amended to read as follows: (3) Four Corners Overlay District: The following supplemental district regulations ap ply to the Four Corners Overlay District, as defined in Section 4.5.14 . (a) The permitted uses shall be those uses listed in Section s 4.4.9(B)(1,2,4,5). 2 ORD. NO 45-11 (b) The accessory uses shall be those uses listed in Section (C). (c) The conditional uses shall be those uses listed in Sections (D)(1,3,4,10,12,15, 20 and 21) . (2, 3, 9, 11, 14, 19, and 20) (d) Standards Pertaining to Allocation of Uses: 1. Office uses can encompass up to one hundred perc ent (100%) of the total building square footage within a Four Corners Overlay maste r development plan. 2. Retail uses shall not encompass more than one hu ndred percent (100%) of the total building area square footage of the Four Corn ers Overlay master development plan. 3. Hotels, motels, and residential all suite lodgin g shall not encompass more than 20% of the total building area square footage of the Four Cor ners Overlay master development plan. Notwithstanding the above, hotels , motels and residential all suite lodging can comprise 100% of the floor area o f an individual building within a MDP containing multiple buildings. 4. Multi-family Dwelling Units: Multi-family uses excluding duplexes subject to (a)(b)(c)(d)(e) below, ranging in density not to ex ceed 30 units per acre subject to the following: a. Residential units may comprise 75% of the total floor area of the development master plan at a maximum density of (30 ) units per acre and only when proposed as part of a mixed-use developme nt containing office and/or commercial uses. b. Residential developments must include a minimum of 20% workforce units consisting of moderate income workforce units as defined by Article 4.7 Family/Workforce Housing. c. Workforce units shall be subject to general provisions of Article 4.7.6, 4.7.7, 4.7.8, 4.7.9, and 4.7.10. d. For mixed-use developments, the shared parking p rovisions of LDR Section 4.6.9. (C)(8) shall be allowed. e. All residential developments shall be subject to the Performance Standards of 4.4.13(l)(2) 3 ORD. NO 45-11 (e) Standards Unique to the Four Corners Overlay District: Where standards unique to the Four Corners Overlay District conflict with standards contained elsewhere in the zoning, subdivision, and landscape codes, the standards of this Subsection shall apply: 1. Lot Coverage & Open Space: a. Land area equal to at least 25% of the individua l Four Corners Overlay District Master Development Plan (MDP) including th e perimeter landscaped boundary, shall be in open space. Water bodies and paved areas shall not be included in the meeting of this 25% open space req uirement. 2. Minimum Structure Size: Any free-standing non-residential principal struct ure shall have a minimum floor area of 4,000 square fee t; shall be architecturally consistent with other structures in the master deve lopment plan; and shall have direct access to and from other portions of the Fou r Corners Overlay development. 3. Office and Commercial Floor Heights shall be a m inimum of twelve feet (12') floor to floor on the first floor and ten (10') flo or to floor on all floors above. Residential uses shall have a minimum nine feet (9') floor to floor on all floors. Hotel, motel and residential all suite lodging shal l have a minimum of eight feet six inches (8' 6") floor to floor on all floors. Au xiliary and service rooms, such as, garages, restrooms, closets, laundry rooms, dressin g rooms, storage rooms, mechanical, electrical, and plumbing equipment room s are exempted from the floor height regulations. Section 3. That should any section or provision of this ordi nance or any portion thereof, any paragraph, sentence, or word be declar ed by a court of competent jurisdiction to be invalid, such decision shall not affect the validit y of the remainder hereof as a whole or part thereo f other than the part declared to be invalid. Section 4. That all ordinances or parts of ordinances in con flict herewith be, and the same are hereby repealed. Section 5 . That this ordinance shall become effective immed iately upon its passage on second and final reading. PASSED AND ADOPTED in regular session on second an d final reading on this the _____ day of ___________________, 2011. 4 ORD. NO 45-11 ____________________________________ ATTEST M A Y O R _______________________________ City Clerk First Reading__________________ Second Reading________________ PLANNING AND ZONING BOARD STAFF REPORT MEETING DATE: NOVEMBER 21, 2011 AGENDA NO: IV. A. AGENDA ITEM: CONSIDERATION OF A CITY-INITIATED AMENDMENT TO LAND DEVELOPMENT REGULATIONS (LDRS) SECTION 4.4.9, “GENERAL COMMERCIAL (GC) DISTRICT”, SUBSECTION (G), “SUPPLEMENTAL DISTRICT REGULATIONS”, SUB-SUBSECTION (3), “FOUR CORNERS OVERLAY DISTRICT”, TO CORRECT AN OUTDATED REFERENCES ITEM BEFORE THE BOARD The item before the Board is to make a recommendation to the C ity Commission regarding a city-initiated amendment to Land Development Regulations (LDRs) Section 4.4.9, “General Commercial (GC) District”, Subsection (D), “S upplemental District Regulations”, Sub-Subsection (3), “Four Corners Overlay District”, to provide for housekeeping correcti ons to outdated references pursuant to LDR Section 2.4.5(M). Pursuant to Section 1.1.6, an amendment to the text of the Land Development Regulations may not be made until a recommendation is obtained from the Plan ning and Zoning Board. BACKGROUND/ANALYSIS Periodically, during review of the Land Development Regulati ons, it is discovered that LDR text amendments were processed which changed section numbers, but correspon ding references to those Sections elsewhere in the code were not amended. The permitted, assessory and conditional uses allowed within the Four Corners Overlay District are specified within the “Supplemental District Regulations” se ction of the General Commercial (GC) District through references to specific uses (by number) in the P ermitted, Assessory and Conditional Use sections of the District. Earlier this year, th ere was a change in the numbering of the uses listed within the “Conditional Uses and Structure s Allowed” Section, which made the references used for the Four Corners Overlay District incorrect. The pro posed amendment corrects these references. REQUIRED FINDINGS Comprehensive Plan Conformance LDR Section 2.4.5(M)(5) (Findings) requires that the City Commission make a finding that the text amendment is consistent with and furthers the Goals, Obje ctives and Policies of the Comprehensive Plan. While the amendment does not specifically f urther the Goals, Objectives and Policies of the Comprehensive Plan, it is not inconsistent with them. Planning and Zoning Board Meeting, November 21, 2011 LDR Amendment – References Correction for Fo ur Corners Overlay District Regulations 2 RECOMMENDED ACTION By motion, recommend to the City Commission approval of the amend ment to Land Development Regulations Section 4.4.9, “General Commercial (GC) District”, Subsection (D), “Supplemental District Regulations”, Sub-Subsecti on (3), “Four Corners Overlay District”, to correct outdated references therein, by adopting the findings of fact and law contained in the staff report, and finding that the text amendment and app roval thereof is consistent with the Comprehensive Plan and meets the criteria set forth in LDR Sectio n 2.4.5(M). Attachment: Proposed Ordinance No. 45-11 MEMORANDUM TO:Mayor and City Commissioners FROM:Terrill Pyburn, Assistant City Attorney THROUGH:Brian Shutt, City Attorney DATE:November 15, 2011 SUBJECT:AGENDA ITEM 12.C. - REGULAR COMMISSION MEETING OF DECEMBER 6, 2011 ORDINANCE NO. 46 -11 ITEM BEFORE COMMISSION The attached Ordinance 46-11 is amending Section 113.02, "Prohibition of Cons umption or Possession of Open Containers of Alcoholic Beverages in Public Places." BACKGROUND This ordinance amendment is before Commission for a pproval to exclude the Delray Beach Arts Garage from the list of prohibited locations for consumpti on of alcohol in order to avoid having to obtain a waiver for each event at the Arts Garage. RECOMMENDATION The City Attorney's Office recommends City Commissi on discretion. ORDINANCE NO. 46-11 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AMENDING CHAPTER 113, “ALCOHOLIC BEVERAGES”, OF THE CODE OF ORDINANCES OF THE CITY OF DELRAY BEACH, FLORIDA, BY AMENDING SECT ION 113.02, “PROHIBITION OF CONSUMPTION OR POSSESSION O F OPEN CONTAINERS OF ALCOHOLIC BEVERAGES IN PUBLIC PLACES”, TO INCLUDE AN EXCEPTION FOR THE DELRAY BEA CH ARTS GARAGE; PROVIDING A GENERAL REPEALER CLAUSE, A SAVING CLAUSE, AND AN EFFECTIVE DATE. WHEREAS, the City Commission of the City of Delray Beach, Florida, desires to exclude the Delray Beach Arts Garage from the list of prohibited locat ions for consumption of alcohol in order to avoid h aving to obtain a waiver for each event at the Arts Garage; and NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISS ION OF THE CITY OF DELRAY BEACH, FLORIDA, AS FOLLOWS: Section 1. That Chapter 113, "Alcoholic Beverages", Section 11 3.02, “Prohibition of Consumption or Possession of Open Containers of Alcoholic Bever ages in Public Places”, of the Code of Ordinances o f the City of Delray Beach, Florida, be and the same is hereby amend ed to read as follows: For the purpose of this Chapter the following definition sha ll apply unless the context clearly indicates or requires a different meaning: Sec. 113.02 – PROHIBITION OF CONSUMPTION OR POSSESSION OF OPEN CONTAINERS OF ALCOHOLIC BEVERAGES IN PUBLIC PLACES. (A) Within this City it shall be unlawful for any p erson to consume alcoholic beverages or have in his-her possession any open container containing an alcoholic beverage while such person is: (1) On the public streets, sidewalks, alleys and ot her rights-of-way with the exception that seated patrons of a permitted sidewa lk café may consume alcoholic beverages: (2) On the beach; (3) In public parks, provided, however, that patrons of th e restaurants located at the Delray Beach Municipal Golf Course and Lakeview Gol f Course may consume alcoholic beverages on the Delray Beach Municipal G olf Course and Lakeview Golf Course when they are golfing, and patrons atte nding an Old School 2 ORD. NO. 46-11 Square, Inc. event at Old School Square, patrons at tending an event at the Delray Beach Arts Garage/Arts Warehouse, or a Delray Beach Tennis Center event at the Delray Beach Tennis Center may consume alcoholic beverages during the event; (4) In motor vehicles or trailers; or (5) On business property outside the building with the exception that patrons seated at permanent tables provided by the business may consume alcoholic beverages. (B) Any person may request that the City Manager wai ve the applicability of division (A) for certain public functions or affairs. The City Mana ger shall have seven (7) days to consider such a request and if denied, the applicant may appeal the denial of the request to the City Commission. Suc h appeal to the City Commission must be made within s even (7) days and will be considered by the City Commission within thirty (30) days of the denial. Section 2. That should any section or provision of this ordin ance or any portion thereof, any paragraph, sentence, or word be declared by a Court of competent jurisdiction to be invalid, such deci sion shall not affect the validity of the remainder hereof as a whole or part thereof other than the part declare d to be invalid. Section 3. That all ordinances or parts of ordinances in conf lict herewith be and the same are hereby repealed. Section 4. That this ordinance shall become effective upon its passag e on second and final reading. PASSED AND ADOPTED in regular session on second an d final reading on this the _____ day of ____________________, 2011. ____________________________________ M A Y O R ATTEST: _____________________________ City Clerk First Reading__________________ Second Reading________________