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01-03-12 Regular MeetingCity of Delray Beach Regular Commission Meeting RULES FOR PUBLIC PARTICIPATION Tuesday, January 3, 2012 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. December 6, 2011 – Regular Meeting B. December 13, 2011 – Regular Meeting 6. PROCLAMATIONS: A. Martin Luther King, Jr. Day – January 16, 2012 B. Calling for the First Non-Partisan Election to be held on March 13, 2012 7. PRESENTATIONS: A. Government Finance Officers Association Award – Certificate of Achievement for Excellence in Financial Reporting B. Recognizing and commending sponsors who helped make the 25th Annual Turkey Trot 5K Run and Health Walk a success C. Waste Management Proposal Presentation 8. CONSENT AGENDA: City Manager Recommends Approval A. RESOLUTION NO. 01-12: Approve Resolution No. 01-12 regarding the March 13, 2012 First Nonpartisan and Special Election. B. RIGHT-OF-WAY DEED ACCEPTANCE/DELRAY BEACH HOUSING AUTHORITY: Accept a right-of-way deed for the dedication of 50’ of land for Auburn Avenue from the Delray Beach Housing Authority in association with the Village Square Redevelopment project. C. CHANGE ORDER NO. 4/FOSTER MARINE CONTRACTORS, INC.: Approve Change Order No. 4 to Foster Marine Contractors, Inc. in the amount of $10,646.40, for additional sod required due to sod quantity shortages; and a contract time extension of fourteen (14) days; for the S.W. 12th Avenue/Auburn Avenue/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). D. SERVICE AUTHORIZATION NO. 06-12/CURRIE SOWARDS AGUILA ARCHITECTS: Approve Service Authorization No. 06-12 with Currie Sowards Aguila Architects in the amount of $44,300.00 for consulting services required in conjunction with a storm hardening project for Fire Rescue Headquarters (Fire Station No. 1). Funding is available from 334-6112-519-62.10 (General Construction Fund: Capital Outlay/Buildings). E. AGREEMENTS FOR CONSULTING ENGINEERING SERVICES/WANTMAN GROUP, INC./MATHEWS CONSULTING, INC.: Approve Agreements with Wantman Group, Inc. and Mathews Consulting, Inc. for consulting engineering services for capital improvement projects contained in the City’s Capital Improvement Program (CIP). Project #12-057. F. HOUSING REHABILITATION GRANT/CONTRACT AWARD: Award one (1) Housing Rehabilitation contract through the Community Development Block Grant (CDBG) and Residential Construction Mitigation Program (RCMP) to the lowest responsive bidder, Citywide Construction Services, Inc., for 218 S.W. 13th Avenue in the amount of $24,011.77. 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). G. COMMUNITY DEVELOPMENT BLOCK GRANT (CDBG) SUB-RECIPIENT FUNDING AGREEMENT/ACHIEVEMENT CENTERS FOR CHILDREN AND FAMILIES: Approve and authorize execution of a Sub-Recipient Funding Agreement with Achievement Centers for Children and Families under the Community Development Block Grant (CDBG) program for FY 2011-2012, with total funding in the amount of $72,540.00. Funding is available from 118-1966-554-82.09 (Neighborhood Services: Aid to Private Organizations/Child Care Center). H. COMMUNITY DEVELOPMENT BLOCK GRANT (CDBG) SUB-RECIPIENT FUNDING AGREEMENT/FAIR HOUSING CENTER OF THE GREATER PALM BEACHES, INC.: Approve and authorize execution of a Sub-Recipient Funding Agreement with the Fair Housing Center of the Greater Palm Beaches, Inc. under the Community Development Block Grant (CDBG) program for FY 2011-2012, with total funding in the amount of $6,000.00. Funding is available from 118-1966-554-82.12 (Neighborhood Services: Aid to Private Organization/Fair Housing Center). I. AMENDMENT TO THE THIRD ADDENDUM TO THE CONTRACT FOR SALE AND PURCHASE/2216 N.E. 3RD AVENUE: Approve an Amendment to the Third Addendum to the Contract to sell/transfer one (1) NSP property to the Delray Beach Community Land Trust (DBCLT) for the benefit and resale of the unit to a household with an income less than one-hundred twenty percent (120%) of Area Median Income (AMI) as determined by HUD. J. REVISED WORKFORCE HOUSING COVENANT/BAMFOUR, LLC/DKB REALTY INVESTMENT, INC./MATHIAS DEVELOPMENT: Approve the revised Workforce Housing Covenant as proposed between the City and Bamfour, LLC, DKB Realty Investment, Inc. and Mathias Development, Inc. K. RATIFICATION OF APPOINTMENT TO THE KIDS AND COPS COMMITTEE: Approve and ratify the appointment of Mr. Adrian Ralkauskas, Police Department Representative, for an unexpired term ending November 11, 2013. L. REQUEST TO WAIVE FEES FOR STAFF AND USE OF POMPEY PARK FACILITIES FOR THE DR. MARTIN LUTHER KING, JR. HOLIDAY CELEBRATION: Approve a request to waive field permit and facility rental fees and provide staff support at Pompey Park on January 14, 2012 from 8:00 a.m.–12:00 p.m., and January 16, 2012 from 11:00 a.m.–5:00 p.m., for the Dr. Martin Luther King, Jr. Holiday Celebration. M. REVIEW OF APPEALABLE LAND DEVELOPMENT BOARD ACTIONS: Accept the actions and decisions made by the Land Development Boards for the period December 12, 2011 through December 30, 2011. N. AWARD OF BIDS AND CONTRACTS: 1. Purchase award to Municipal Lighting Systems in the amount of $83,160.00 for the purchase of sixty (60) LED light fixtures that are Buy America Compliant, to install on the decorative street light poles along West Atlantic Avenue. Funding is available from 101-6352-519-46.95 (ARRA Economic Stimulus FD: Repair & Maintenance Services/West Atlantic Avenue Street Lights). 9. REGULAR AGENDA: A. APPEAL OF AN ADMINISTRATIVE INTERPRETATION/BOSTON’S RESTAURANT: Consider the appeal of an administrative interpretation by the Director of Planning and Zoning that a conditional use approval is required for the outdoor entertainment component to be located on the Boston’s Restaurant expansion area located at 40 South Ocean Boulevard. (Quasi-Judicial Hearing) B. AMENDMENT NO. 1 TO THE AGREEMENT/PLAYERS INTERNATIONAL MANAGEMENT, INC. (PIM): Consider approval of Amendment No. 1 to the Agreement with Players International Management, Inc. (PIM) to extend the term of the Agreement as well as modify when the events may be held. C. SPECIAL EVENT REQUEST/VIVA SOUTH FLORIDA: Consider approval and endorsement of a new event, Viva South Florida, produced by Pegasus Entertainment proposed to be held on the grounds of Old School Square and Old School Square Park from noon to 11:00 p.m. on September 14-15, 2012 and from noon to 8:00 p.m. on September 16, 2012; to grant a temporary use permit per LDR Section 2.4.6(F) for the use of City rights-of-way to include N.E. 1st Avenue from the north side of the Old School Square grounds to south of the garage entrance and Swinton Avenue from Atlantic Avenue to approximately the southernmost driveway entrance to the Crest Theatre; and to authorize staff support for traffic control and security, Fire/EMS services, site cleanup and trash removal, electrician assistance, barricading assistance, event signage, trash boxes, and use of a City generator; contingent upon the conditions of approval listed in the staff report. D. REQUEST FOR QUALIFICATIONS (RFQ) RESPONSES FOR ARCHITECTURAL CONSULTING SERVICES/CAPITAL IMPROVEMENT PROJECTS (CIP): Consider approval of the Architectural Consulting Services RFQ (RFQ# 2012-05) responses short list and authorization to negotiate contracts with each of the five (5) companies on the short list. Project #12-056. E. APPOINTMENT OF OUTSIDE COUNSEL TO ASSIST IN REVIEW OF ORDINANCES REGARDING TRANSIENT HOUSING:Consider a request to appoint outside counsel to assist the City Attorney’s Office in the drafting, review and defense of ordinances concerning transient residential use as well as reasonable accommodation procedures. F. OFFER OF SETTLEMENT IN PATRICIA MILEY V. CITY OF DELRAY BEACH: Consider an Offer of Settlement in the total amount of $9.5 million in Patricia Miley v. City of Delray Beach. Staff recommends denial. G. APPOINTMENT OF OUTSIDE COUNSEL FOR PATRICIA MILEY v. CITY OF DELRAY BEACH: Consider approval to appoint Kent Pratt, Esq. as outside counsel in the case of Patricia Miley v. City of Delray Beach at the rate of $140.00 per hour. H. OFFER OF SETTLEMENT IN ANDREA WALLACE ET, AL. V. CITY OF DELRAY BEACH: Consider an Offer of Settlement in the total amount of $40,000.00 in Andrea Wallace et, al. v. City of Delray Beach. Staff recommends denial. I. APPOINTMENTS TO THE CODE ENFORCEMENT BOARD: Appoint three (3) regular members to the Code Enforcement Board to serve three (3) year terms ending January 14, 2015. Based upon the rotation system, the appointments will be made by Commissioner Frankel (Seat #3), Commissioner Gray (Seat#4) and Mayor McDuffie (Seat #5). J. 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 Commissioner Carney (Seat #1). K. APPOINTMENTS TO THE FINANCIAL REVIEW BOARD: Appoint one (1) regular member to serve an unexpired term ending July 31, 2012 and one (1) alternate member to serve an unexpired term ending July 31, 2013 to the Financial Review Board. Based upon the rotation system, the appointments will be made by Commissioner Gray (Seat #4) and Mayor McDuffie (Seat #5). L. APPOINTMENT TO THE KIDS AND COPS COMMITTEE: Appoint one (1) At-Large-Representative to the Kids and Cops Committee to serve an unexpired term ending July 31, 2013. Based upon the rotation system, the appointment will be made by Commissioner Alperin (Seat #2). M. APPOINTMENT TO THE SITE PLAN REVIEW AND APPEARANCE BOARD: Appoint one (1) regular member to the Site Plan Review and Appearance Board to serve an unexpired term ending August 31, 2013. Based upon the rotation system, the appointment will be made by Commissioner Alperin (Seat #2). 10. PUBLIC HEARINGS: 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. B. ORDINANCE NO. 50-11: Consider an amendment to Chapter 34, “Elections”, by amending Section 34.16, “Filing of Nominating Petitions”, to modify the number of registered voters required to sign a petition to grant eligibility of a candidate to qualify to run for office. C. ORDINANCE NO. 47-11 (SECOND READING/SECOND PUBLIC HEARING): City-initiated amendment to the Land Development Regulations (LDR) Sections 4.4.6 “Medium Density Residential (RM) District”, 4.4.9 “General Commercial (GC) district”, 4.4.12 Planned 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 allowed in the same manner as multiple family residential developments with respect to the number of units and density. D. ORDINANCE NO. 48-11 (SECOND READING/SECOND PUBLIC HEARING): Consider a city-initiated amendment to Land Development Regulations (LDR) Section 4.3.3, “Special Requirements for Specific Uses”, by enacting a new Subsection 4.3.3(AAAA), “Simulated Gambling Devices”, in order to prohibit use of same and to enact a new definition of, “Simulated Gambling Devices”. E. 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. F. 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”. 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. 02-12: Consider an amendment to Chapter 96, “Fire Safety and Emergency Services”, by amending 96.16, “Certain Codes Adopted by Reference”, to comply with the State of Florida’s updated changes in the Fire Prevention Code Standards. If passed, a public hearing will be held on January 17, 2012. 13. COMMENTS AND INQUIRIES ON NON-AGENDA ITEMS: A. City Manager B. City Attorney C. City Commission 12/06/11 DECEMBER 6, 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, December 6, 2011. 1. Roll call showed: Present -Commissioner Tom Carney Commissioner Jay Alperin Commissioner Adam Frankel Commissioner Angeleta E. Gray Mayor Nelson S. McDuffie Absent -David T. Harden, City Manager Also present were -Robert A. Barcinski, Assistant City Manager Brian Shutt, City Attorney Chevelle D. Nubin, City Clerk 2. The opening prayer was delivered by Monsignor Thomas Skindeleski, St. Vincent Ferrer Catholic Church. 3. The Pledge of Allegiance to the flag of the United States of America was given. 4. AGENDA APPROVAL. Mayor McDuffie requested that Item 8.W.2., Award of Bids and Contracts, be removed from the Consent Agenda and moved to the Regular Agenda as Item 9.A.A. Mr. Frankel 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: Mrs. Gray moved to approve the Minutes of the Regular Meeting of November 15, 2011, seconded by Dr. Alperin. 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. 6. PROCLAMATIONS: 6.A. None 2 12/06/11 7. PRESENTATIONS: 7.A. Florida City Government Month at Carver Morning Program Janet Meeks, Education Coordinator, stated they hosted several activities for Florida City Government Month in October at Carver Middle School. Mrs. Meeks stated they had a wonderful month and started the program off with a presentation from Environmental Services and Victor Majtenyi, Deputy Director of Public Utilities, discussed the Water Treatment Plant and the importance of water conservation. Mr. Majtenyi handed out rain gauges to about 100 students that attended the morning program. Mrs. Meeks stated 19 of the students signed up for the tours to the Water Treatment Plant and the South Regional Wastewater Treatment Plant. Mrs. Meeks stated two of the students wrote articles for the school newsletter and they also hosted a poster contest. Mrs. Meeks extended a special thanks to the Parks and Recreation Department for providing transportation and stated the City provided boxed lunches for the students as well. Mrs. Meeks thanked Dr. Debra Kaiser, Victor Majtenyi, Rich Reade, and Jennifer Buce for their help. Mayor McDuffie read and presented a proclamation proclaiming the month of October as Florida City Government Month at Carver Morning Program. Dr. Debra Kaiser thanked the City Commission and stated the generosity and the partnership with the City continues. Dr. Kaiser stated during the month of January with the help of Janet Meeks and Parks and Recreation they are going to be installing a learning landscape at Carver which is a giant grid that has huge tires in it and the kids can actually go outside and use this as a learning tool so the kids can be outdoors and do it. Dr. Kaiser stated this is part of community service and campus beautification and the construction academy from Atlantic Community High School is going to be a partner in this. Lena Wallace, Principal of Carver Middle School, thanked the City of Delray Beach for their support they provide for the students of Carver Middle School. Ms. Wallace stated they are the only secondary school in the City of Delray Beach that is “A” rated at this time. 7.B. Lake Worth Drainage District (LWDD) recognizes and commends the City of Delray Beach on their 100th Anniversary – Ronald Crone Ronald Crone, 1874 Ascott Road, North Palm Beach, FL 33408, Lake Worth Drainage District (LWDD), read into the record the Lake Worth Drainage District Resolution No. 11-05 regarding the City’s Centennial. Mr. Crone stated it has been great to work with the City of Delray Beach and they have had an outstanding working relationship. 3 12/06/11 7.C. Chief’s Achievement Award – Chief Anthony Strianese Police Chief Anthony Strianese, gave a brief overview of the Police Explorer Program and stated over the last 1 ½ years it has grown from 6 members to 25. The program is set up to operate similar to the Police Department with the chain of command organizational structure and they also operate in the same family environment. Chief Strianese stated in July they sent 15 explorers up to the Annual Law Enforcement Boot Camp for one week in temperatures that exceeded 100 degrees each day. Chief Strianese showed a video of the boot camp and presented Chief’s Achievement Awards to the participants. Mayor McDuffie and Commissioner Frankel thanked the Police Department. 7.D. Downtown Development Authority (DDA) Marketing Summary Plan – Marjorie Ferrer Marjorie Ferrer, Executive Director of the Downtown Development Authority (DDA), introduced Laura Simon, Associate Director of the Downtown Development Authority and gave a brief PowerPoint presentation. Mrs. Ferrer stated the DDA was created by resolution as a dependent district of the City of Delray Beach in 1971. The main areas of involvement in downtown redevelopment include marketing and promotion of the downtown, business development, security and crime, clean and safe traffic, parking, physical improvements, reviewing the City’s Comprehensive Plan within the DDA’s boundaries (I-95 to the beach), housing and improvements of coordination with local boards and city departments. Mrs. Ferrer stated the mission statement 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 experiential place to live, work and invest. Mrs. Ferrer stated in their goal setting session they divided that up into three major categories: (1) position marketing is the marketing and promotion of the district; these are all of the businesses within the district to make sure that people are aware of what we have in our downtown; (2) improve the coordination/communication with local boards and city departments to enhance the downtown; and (3) support the Delray Beach Marketing Cooperative through events. Mrs. Ferrer stated the second piece is called place making and this is the security, clean and safe, management throughout the downtown and involvement in traffic, parking, noise management, and collaborating with the downtown merchants. Mrs. Ferrer stated the third piece is drive economic development through retention and recruitment. Mrs. Ferrer stated they have very few vacant spaces in the downtown so they really focus on retention making sure they stay in business. The last goal is the physical improvements and enhancements of the downtown. Mrs. Ferrer gave a brief recap and summary of this past year for each of those goals. 8. CONSENT AGENDA: City Manager Recommends Approval. 8.A. FINAL SUBDIVISION PLAT APPROVAL/OCEAN APPLE ESTATES PLAT TWO: Approve the final plat for a 1.52 acre three (3) lot, single 4 12/06/11 family subdivision known as Ocean Apple Estates Plat Two. 8.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. 8.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. 8.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). 8.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). 8.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. 8.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. 8.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. 5 12/06/11 8.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. 8.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). 8.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. 8.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. 8.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. 8.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. 8.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, 6 12/06/11 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. 8.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. 8.Q. SETTLEMENT AGREEMENT/BANK OF AMERICA CORPORATION (BAC): Approval to participate in a Settlement Agreement between Bank of America Corporation (BAC) and 28 State Attorney Generals to resolve allegations that BAC engaged in violations of state and federal antitrust laws. 8.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. The caption of Resolution No. 54-11 is as follows: A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, SUPPORTING ACTION BY FLORIDA’S GOVERNOR AND STATE LEGISLATURE TO CLOSE THE INTERNET SALES TAX LOOPHOLE; PROVIDING AN EFFECTIVE DATE. (The official copy of Resolution No. 54-11 is on file in the City Clerk’s office.) 8.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. The caption of Resolution No. 57-11 is as follows: 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. (The official copy of Resolution No. 57-11 is on file in the City Clerk’s office.) 7 12/06/11 8.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. The caption of Resolution No. 58-11 is as follows: A RESOLUTION AUTHORIZING THE EXECUTION AND DELIVERY OF A MASTER LEASE AGREEMENT, EQUIPMENT SCHEDULE NO. 03 AND RELATED INSTRUMENTS, AND DETERMINING OTHER MATTERS IN CONNECTION THEREWITH. (The official copy of Resolution No. 58-11 is on file in the City Clerk’s office.) 8.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. 8.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. 8.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. THIS ITEM HAS BEEN MOVED TO THE REGULAR AGENDA AS ITEM 9.A.A. 8 12/06/11 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). 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.A. AWARD OF BIDS AND CONTRACTS: 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 Service). Randal Krejcarek, City Engineer, stated this item has to do with purchasing the granite base for the Boy Scout sculpture that was donated to the City from Mr. Shelly Weil. Mr. Krejcarek stated on November 1, 2010 the Public Art Advisory Board (PAAB) voted 4 to 1 to accept a donation from Mr. Weil. It then came to Commission in January 2011 for approval and execution of a donation agreement with Mr. Weil which was executed. There were discussions about how to erect the monument and whether or not it should be on the ground or on a stand with cement. Mr. Krejcarek stated everyone agreed that the best way to show that monument is to put it on the 12 inch high granite base. Mr. Krejacrek stated in the agreement, paragraph 11, page two talks about the monument being placed at Old School Square also. Dr. Alperin asked who is paying for the granite base. Mr. Barcinski stated the City is paying for the base and noted it comes out of the Public Art Fund and staff feels it is legitimate use of those dollars. Mr. Carney stated he had a couple of calls this morning and wrote a letter to the City and staff and they responded. He stated there were statements made that the location had not been approved. Mr. Carney stated there were several members of the PAAB that expressed concern to him this morning regarding the location of the placement of the statue suggesting that it was not totally the view of the Board that it should be the location; recommending a couple of other locations that had been discussed. Secondly, Mr. Carney stated that there had been no determination by that Board of the necessity to have the granite base. Mr. Carney expressed concern that the Commission appoint the PAAB to review things and then they do not wait until final recommendation from that Board before we go forward and do things. Mr. Carney stated he was not here when this happened and this is why he wrote the letter. 9 12/06/11 Mrs. Gray stated she was under the impression that the last time this was brought to the Commission they approved everything but the base. Mr. Barcinski stated everything else was approved and the discussion revolved around the base. Mayor McDuffie asked if the Commission would like to hear from the PAAB. Mr. Frankel stated he has heard from the PAAB already. Mr. Frankel stated the question is whether or not we should spend $2,100.00 on a base. Dr. Alperin moved to approve Item 9.A.A. (formerly Item 8.W.2.), 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.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) Mayor McDuffie read the City of Delray Beach procedures for a Quasi-Judicial Hearing into the record for this item and all subsequent Quasi-Judicial Hearings. Chevelle D. Nubin, City Clerk, swore in those individuals who wished to give testimony on Items 9.A., 9.B, 9.C., or 9.D. Mayor McDuffie asked the Commission to disclose their ex parte communications. Mr. Carney, Dr. Alperin, Mr. Frankel, and Mrs. Gray had no ex parte communications to disclose. Mayor McDuffie stated he met with the owner, his agent, discussed the project and received a copy of the site plan. Paul Dorling, AICP, Director of Planning and Zoning, entered the Planning and Zoning Department project file #2011-178 into the record. Mr. Dorling stated the first two items relate a project conversion of the four houses on the east side of Swinton Avenue south of Atlantic Avenue known as the “Swinton Social”. He stated the first waiver request is for the actual site and there are four historic structures on this site. Mr. Dorling stated they were approved as a Class V site plan for redevelopment for renovation of the structures and conversion of these four single-family residences to a spa and restaurant use. In addition, Mr. Dorling stated there is some off-site valet parking. The Historic Preservation Board considered this waiver as part of that Class V approval and recommended approval with a 6 to 0 vote. Mr. Dorling stated the spa use will be the northern most structure; there will be an outside pool and some accessory structures. Mr. Dorling stated the LDRs require that if you have a wall in 10 12/06/11 the front setback that it is no higher than four feet and this wall is proposed at six feet hence the need for the waiver. Staff recommends approval. Bob Currie, Currie Sowards Aguila Architects, 134 N.E. 1st Avenue, Delray Beach, FL 33444, Applicant, commended Mr. Dorling for his presentation and stated he is present for any questions the Commission may have. Mayor McDuffie stated if anyone from the public would like to speak in favor or in opposition of the waiver request, to please come forward at this time. At this point, Chevelle D. Nubin, City Clerk, swore in the following individual: David Armstrong, 321 North Swinton Avenue, Delray Beach, FL, stated another restaurant in this area would be very ill-advised. Mr. Armstrong stated there is not enough parking downtown as it is and feels there is too much traffic. He stated there are too many restaurants and too much competition. Mr. Armstrong stated he is a retired chef and has worked in Delray Beach for the last 20 years has seen restaurants come and go every season. He stated every season he is looking for work and noted when the snowbirds leave in the summertime the restaurants are suffering. Mr. Armstrong stated he would like to see Atlantic Avenue during season closed off from North Swinton Avenue to Federal Highway because there are too many cars, bicycles on the sidewalks, and you cannot walk by a restaurant without bumping into a waiter. Mr. Armstrong suggested putting temporary podiums in the Avenue, shut off car traffic, and make it foot traffic only. There was no cross-examination. Mr. Currie stated this is an important project in that it saves these four historic buildings and restores them. Mr. Dorling stated the item before the Commission is really a waiver of a wall not the approval of the project. Dr. Alperin stated in the staff backup for the Historic Preservation Board (HPB) these buildings are called “abandoned” and would like to know what this means. Mr. Dorling stated they have been unoccupied for several years. Mrs. Gray stated she will be happy to see the renovations of these buildings and supports the waiver. Mr. Carney supports the waiver as well. Mayor McDuffie stated this is a major step forward in taking care of these structures. 11 12/06/11 The City Attorney briefly reviewed the Board Order with the Commission who made findings according to their consensus (attached hereto is a copy and made an official part of the minutes). Dr. Alperin moved to adopt the Board Order as presented, seconded by Mr. Carney. 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. At this point, the time being 7:05 p.m., the Commission moved to the duly advertised Public Hearings portion of the Agenda. 10. PUBLIC HEARINGS: 10.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. Lula Butler, Director of Community Improvement, stated this is a request for the Commission to approve the 2010-2011 Consolidated Annual Performance and Evaluation Report (CAPER) as required by the Department of Housing and Urban Development (HUD). Mrs. Butler stated the Consolidated Annual Performance and Evaluation Report is a consolidation of their accomplishments from October 1, 2010-September 30, 2011. She stated it is specified under HUD rule that staff publishes this and it is made available to the public from the period of November 13-28, 2011 and staff did not receive any comments. Therefore, Mrs. Butler stated staff recommends approval of the CAPER for submitting to HUD for October 1, 2010 through September 30, 2010. Mayor McDuffie declared the public hearing open. There being no one from the public who wished to address the Commission regarding the Consolidated Annual Performance and Appraisal Report (CAPER), the public hearing was closed. Mrs. Gray stated she is glad that HUD is requesting this report and noted she has learned so much by reading it. Mr. Frankel moved to approve the Consolidated Annual Performance and Appraisal Report (CAPER), 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. 10.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. 12 12/06/11 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.) 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 is consideration of Ordinance No. 43-11 which amends the legal description of the Fox Fontaine House Historic Designation in the LDRs under Section 4.5.1(K) and amends the development restrictions of that historically designated house set forth in Ordinance No. 70-89. Mr. Dorling stated there is a desire by the property owner of these lots to the north to take a 50 foot portion of that property and blend it into these two lots. He stated when that is done we need to amend the ordinance. The original restrictions that applied to the parcel will continue to be applied to this property but it needs to be changed in the ordinance by reference because it is now part of a different plat. At its meeting of November 2, 2011, the Historic Preservation Board (HPB) considered this item and recommended approval with a 6 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. 43-11, the public hearing was closed. Dr. Alperin moved to adopt Ordinance No. 43-11 on Second and FINAL Reading, seconded by Mr. Carney. 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. 13 12/06/11 11.A. City Manager’s response to prior public comments and inquiries. With regard to previous comments expressed by Dr. Victor Kirson from the November 15th meeting, Robert Barcinski, Acting City Manager stated Dr. Kirson commented on a project in Hazleton, Pennsylvania where the Police Department arrested everyone from the ship that unloaded the drugs down to the mothers that were selling them. Mr. Barcinski stated the Delray Beach Police Department actively fights the war on drugs through the outstanding work of our streets narcotics enforcement unit and vice intelligence and narcotics unit. Both units have been commended for their work in the field. For the period covering January 1 through November 30th this year these units have affected 233 arrests and seized the following: 174 grams of crack cocaine, 111 grams of heroin, 750 pounds of marijuana, and over 5,700 pharmaceutical pills to include roxicodone and oxycodone. Also, Dr. Kirson pointed out how quickly an arrested person is back on the streets if the charge was minor narcotics violation. It should be noted that in a recent Police Department operations meeting one of the Assistant State Attorneys who attended supplied some information concerning what is happening in the entire County. There are approximately 20,000 felony cases that get submitted to the State Attorney’s office a year; of those there is a 75% file rate meaning some cases are not filed due to victim/witness not cooperating and lack of evidence, etc. Taking those numbers there are about 15,000 cases filed into the court system. There are only seven criminal judges in Palm Beach County that would equate to a maximum of 700 trials. Taking all of that into consideration we are looking at 14,300 cases that receive plea deals that could entail little jail time or no jail time. 11.B. From the Public. 11.B.1. 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), stated Delray Beach is the nation’s capital for rehabs and sober houses. Dr. Kirson stated now he is seeing vagrants on the beach. Dr. Kirson stated Palm Beach County Commissioner Priscilla Taylor said they were going to put up three facilities and they only have the money for one. He asked if we are going to make a vagrant law where we can either put them into custody where they get food and lodging or are we going to let it get worse until we are a major vagrant city. 11.B.2. David Armstrong, 321 North Swinton Avenue, Delray Beach, FL 33444, stated the city is getting larger every day and noted that he does not have a car, a license, or insurance to drive a car. Mr. Armstrong stated we need more buses to run every 15 minutes on every route. He stated New York moves their people by subway and rail. Mr. Armstrong stated he waits ½ hour for the bus and Palm Tran only runs every 20 minutes down Federal Highway east and west once every hour. Secondly, Mr. Armstrong stated every night he goes to the beach and picks up recycling cans from the beach to make a living. He stated there is a big homeless issue in Delray Beach and the reason is because there are no jobs. Mr. Armstrong suggested building more manufacturing plants out west instead of 14 12/06/11 condominiums and townhomes because there would be less homeless on the street. He commented about the homeless at Knowles Park and stated he likes the fact that the City is recycling but does not like the fact that the City put in the solar compactors because the cans are being crushed with the paper. Mr. Armstrong suggested that the City put recycling bins at the beach and we could use that money for the kids programs. Mr. Armstrong suggested that the City work together with the Community Redevelopment Agency (CRA) to set up a triage area for food and a sanitation area place for these people to sleep and buy up the abandoned homes in the southwest area of Delray Beach east of I-95 and sell them to people or give them to low income housing people. Mr. Armstrong stated spending $5 million of tax dollars on brick pavers across from the Fire Department is a waste of tax dollars and gives the homeless people another place to sleep. 11.B.3. Jolene McClure, owner of Off the Ave Food & Spirits, 19 S.E. 5th Avenue, Delray Beach, FL, thanked the Commission, Police Chief Strianese and the Assistant Police Chief with regards to the situation on Atlantic Avenue and S.E. 5th Avenue. Ms. McClure stated Police Chief Strianese and the Assistant Police Chief have come into her business several times, have been up and down the streets and have provided Clean and Safe Officers. She stated the problem is not abated but she appreciates the service. 11.B.4. Mark Fields, 414 Seasage Drive #4, Delray Beach, FL 33483, stated for the past 2-3 years he has attempted to have the parking at the beach addressed specifically at the intersection of Casuarina Road and Venetian Drive. Mr. Fields stated he sent an email to the City April 7th and he never received a response. He received a response from the City on July 22, 2010 stating that there was a comprehensive assessment of signage for the barrier island. Mr. Fields stated he would like to know where that assessment is that took place. He stated he followed up again on June 15, 2011 via email and received no response from the City Engineer. Mr. Fields stated the intersection is very dangerous and the site visibility is a concern and liability. He stated people are parking on both sides of Casuarina Road and feels this is a real safety issue because rescue vehicles cannot get by on the roads if there were an emergency. Mr. Fields stated somebody is going to lose their life or be severely injured. At this point, the time being 7:23 p.m., the Commission moved back to Item 9.B. of the Regular Agenda. 9.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 offsite parcel located at 104 S.E. 1st Avenue. (Quasi-Judicial Hearing) Mayor McDuffie asked the Commission to disclose their ex parte communications. Mr. Carney, Dr. Alperin, Mr. Frankel, and Mrs. Gray had no ex parte communications to disclose. Mayor McDuffie stated he met with the owner, his agent, discussed the project and received a copy of the site plan. 15 12/06/11 Paul Dorling, AICP, Director of Planning and Zoning, stated this waiver request is also associated with the “Swinton Social” site. Mr. Dorling stated they have proposed to have a valet surface and purchase this lot and put in a valet parking lot. The two waivers that are required now relate to the parking lot. Mr. Dorling stated one waiver request relates to the aisle width and noted there is a required 24 foot between parking spaces down the center and the request is to go to 22 feet. The second waiver is to the required ten foot landscape strips that are required around the site. He stated this is a very small site and if they were to comply with those it makes it unusable as a parking lot. The applicant is asking for some reductions that range from a foot and a half to 6 ½ feet in this location. He stated they are providing a landscape plan which provides hedging and trees in that reduced area and has been approved as part of the Class V approval. Staff believes these two waivers to the parking aisle width of two feet and the reduction in landscape setbacks around the site are appropriate in this situation and the landscaping that would be in the wider strips is being provided in the smaller strips. Mr. Dorling stated the Historic Preservation Board (HPB) considered this waiver as part of that Class V approval and recommended approval. Mr. Currie stated they are also putting a decorative picket fence in that area. Mayor McDuffie stated if anyone from the public would like to speak in favor or in opposition of the waiver requests, to please come forward at this time. There being no one from the public who wished to address the Commission regarding the waiver requests, the public hearing was closed. Mrs. Gray asked where the valet queue would be. Mr. Dorling stated the valet queue would be on the primary site and the valet lot is one lot down the block. Mrs. Gray asked if there is public parking in front of the project. Mr. Dorling stated there is public parking along Swinton Avenue and 1st. Dr. Alperin stated there are 7 spaces in the driveway with 2 of them being handicapped. Dr. Alperin asked if the other spaces are going to be used for valet or are they going to be available for parking. Mr. Currie stated they want everything to be valet parking. Mrs. Gray stated her concern was only that we would not be using the public parking spaces out front for the valet queue. Mr. Currie stated there are nine spaces on the street that they are not using and not counting. Dr. Alperin asked what would this development require in spaces and how many are actually being provided. Mr. Dorling stated the applicant did receive relief for a number of parking spaces through the approval with HPB and part of that negotiation was also that they seek alternative areas for valet parking and they are actively seeking alternative areas. Mr. Dorling stated while it cannot be counted for their public spaces there is the public parking garage immediately adjacent to the site as well. 16 12/06/11 Mr. Currie stated he believes 53 spaces are required; 26 on the valet lot; 7 on their property and also made a contractual agreement with the valet where he has between 20-40 additional spaces. Dr. Alperin stated there are a certain number of spaces required and asked where they are and how can we be reassured that the spaces are going to be available. Mr. Dorling stated there is no requirement that they actually provide any additional spaces because of that waiver. As part of that discussion, they have committed to find those spaces but they are not obligated by Code. Dr. Alperin stated HPB approved a waiver to LDR Section 4.5.1 and reduced the number of parking spaces from 53 to 33 based upon the presentation of confirmation that adequate parking for proposed use would be achieved through alternate means. Mrs. Gray asked what happens if they want to sell one of the buildings. Mr. Dorling stated there would be a Unity of Title between all of those properties as well as a valet parcel. Mr. Dorling stated they would not be able to break that without City consent and the City’s subdivision code if they wanted to sell it separately it would require a subdivision and a platting process. Mrs. Gray stated she loves the project but expressed concern over the parking. Brief discussion between staff, Mr. Currie, and the Commission followed. Dr. Alperin stated he is favor of the waiver request. Mr. Carney stated he is in favor of the waiver request. The City Attorney briefly reviewed the Board Order with the Commission who made findings according to their consensus (attached hereto is a copy and made an official part of the minutes). Mr. Frankel moved to adopt the Board Order as presented, seconded by Mr. Carney. 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.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) Mayor McDuffie asked the Commission to disclose their ex parte communications. Mr. Frankel stated he received a letter and received a tour of Boston’s and looked through the entire project with a representative from Ocean Properties. Mrs. 17 12/06/11 Gray stated she may have received a letter but has not read a letter. Mayor McDuffie stated he received a letter and have not taken a tour or spoken to any of the representatives. Mr. Carney stated he received a letter. Dr. Alperin stated he too received a letter. Paul Dorling, AICP, Director of Planning and Zoning, stated at this point they are considering two waivers to two portions of the LDRs that were provided with a Class II site plan modification for Boston’s renovation. These waivers relate to a required minimum width of a landscape island and are requesting to reduce that from 62 square feet to 75 square feet. Mr. Dorling stated the required findings under LDR Section 2.4.7(B)(5) are made in the staff report. Staff recommends approval at this time. At its meeting of October 26, 2011, the Site Plan Review and Appearance Board (SPRAB) reviewed the two waiver requests in conjunction with a Class II Site Plan Modification and the Board approved both waivers on a 4 to 0 vote. Bob Currie, Currie Sowards Aguila Architects, 134 N.E. 1st Avenue, Delray Beach, FL 33444, Applicant, stated Salina Avenue is by space and alley which is 16 or 18 feet wide. Mr. Currie stated the alternative is that you have a 60 foot right-ofway which you would have to get rid of buildings and parking. Mr. Currie stated they had to reduce them because of the radius to trucks and a fire truck around. In addition, Mr. Currie stated they are not required to have any open space requirement and they provided 18%. Mayor McDuffie stated if anyone from the public would like to speak in favor or in opposition of the waiver requests, to please come forward at this time. There being no one from the public who wished to address the Commission regarding the waiver requests, the public hearing was closed. No cross-examination or rebuttal. The City Attorney briefly reviewed the Board Order with the Commission who made findings according to their consensus (attached hereto is a copy and made an official part of the minutes). Mr. Carney moved to adopt the Board Order as presented, 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.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”, 18 12/06/11 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) Mayor McDuffie asked the Commission to disclose their ex parte communications. Mr. Frankel stated he received a letter and received a tour of Boston’s and looked through the entire project with a representative from Ocean Properties. Mrs. Gray stated she may have received a letter but has not read a letter. Mayor McDuffie stated he received a letter and have not taken a tour or spoken to any of the representatives. Mr. Carney stated he received a letter. Dr. Alperin stated he too received a letter. Paul Dorling, AICP, Director of Planning and Zoning, stated these waivers are for Phase II and is part of a Class V Site Plan Modification. He stated these waivers refer to the width of this driveway which is being requested to be reduced from twentyfour feet (24’) to twenty-two feet (22’) and it relates to the height of these buildings which is supposed to be a minimum of twenty-five feet (25’) per the CBD (Central Business District) Design Guidelines and they are lower than that. Mr. Dorling stated there are some waivers to required stacking distances at the two entranceways to the parking. There is a minimum of fifty (50) foot required and twenty-seven (27) feet is being provided in these locations. This proposal includes an outdoor bar area and outdoor seating. Mr. Dorling stated the waiver relates to the height of those buildings and reiterated that the height is required to be a minimum of twenty-five feet (25’) and they are a maximum of fourteen feet (14’) high. Bob Currie, Currie Sowards Aguila Architects, 134 N.E. 1st Avenue, Delray Beach, FL 33444, Applicant, briefly spoke about the twenty-two foot (22’) drive aisle which is proposed from the southernmost driveway access from A1A. Mr. Currie stated the intention is to bring all the service trucks in and the garbage truck backs into that and goes in and out on Atlantic Avenue. Mayor McDuffie stated if anyone from the public would like to speak in favor or in opposition of the waiver requests, to please come forward at this time. There being no one from the public who wished to address the Commission regarding the waiver requests, the public hearing was closed. Mr. Carney asked if there is anything the Commission is doing tonight that would work to the detriment of the appeal. Mr. Dorling stated these specific waivers would not and by virtue of approving these waivers it does not approve the overall Class V that would be subject to approval next week. Mr. Dorling stated the reduction of the driveway is in part to provide some additional landscaping. Mr. Dorling stated there will be a large wall that will buffer the outdoor seating area, and then there will be a landscape strip, then there will be a 22 foot driveway and then there will be five foot landscape strip with additional landscaping. He stated if the Commission did not approve a reduction in this driveway width they potentially could not provide that additional landscape strip 19 12/06/11 which goes to compatibility. Mr. Dorling stated this would heighten the compatibility that is being proposed. The City Attorney briefly reviewed the Board Order with the Commission who made findings according to their consensus (attached hereto is a copy and made an official part of the minutes). Mr. Frankel moved to adopt the Board Order as presented, 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. 9.E. REVOCATION OF VALET PARKING LICENSE AGREEMENT WITH CUGINI GRILLE: Consider approval to revoke the valet parking license agreement with Cugini Grille for the valet parking queue located on the south side of the 200 block of East Atlantic Avenue. 9.E.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. Mr. Frankel stated they received a package about 5:55 this evening from representatives from Cugini Grille and they make various allegations, conflicts of interest, and the like. In particular, they have a lot having to do with Frances Marincola and they include some documents from the Clerk of Court. Mr. Frankel stated he previously represented Mr. Marincola on a traffic ticket. Mr. Frankel stated Mr. Marincola is not a party to this but he wanted to know if there is a conflict of interest because of his traffic representation. The City Attorney stated he does not see this as a problem for Mr. Frankel to participate in the discussion. Scott Aronson, Parking Management Specialist, stated this item is the revocation of the valet parking license agreement with Cugini Grille for the valet queue located on the south side of the 200 block of East Atlantic Avenue. Mr. Aronson stated this was one of the original valet queues with the program in the mid 1990’s. In 2004, the restaurant was sold to Joe Gattelaro and changed to Cugini Grille and the valet queue was transferred to the new owner through the Consent of Assignment Form through the City approved by the City Manager. In 2010, the restaurant changed hands and the Consent of Assignment was completed with the approval of the City Manager and the new owners of Cugini Grill proceeded to manage the valet parking queue. In 2011, the valet queue increased its rates from $10.00 to $15.00 per car. In March 2011, Mr. Manero, owner of Vic & Angelo’s and The Office addressed the Parking Management Advisory Board (PMAB) requesting to take ownership of that valet queue in that the queues were getting too expensive and he felt that his customers were not being treated with the proper respect and some other issues they had. At the time, staff did not recommend approval of that transfer. Mr. Aronson stated the valet queue license was 20 12/06/11 being met and at the time the agreement did not have anything with respect to pricing or validations and these are all added to the revised agreements. Mr. Aronson stated this was done in March 2011 and it was an informal request of the Board and it was done at under a citizen’s time to speak at the Parking Management Advisory Board (PMAB). In April 2011, a formal request came through for the Board to deliberate. Staff did not recommend approval at that time. Mr. Aronson stated somewhere around that time there was a meeting with all of the valet license holders and that meeting was about the changes that were being proposed to the agreements to get their feedback. At that time, Mr. Aronson stated they agreed that the changes were okay. Mr. Aronson stated a question was asked that Cugini Grille was going to be closing for a couple of months around summertime to do some renovations and that they would be reopening in 60 days. Mr. Aronson stated through that time staff was getting several phone calls from neighboring businesses that the restaurant was closed and there were numerous allegations as to why. Mr. Aronson stated at the end of October it was confirmed that the restaurant was indeed for sale and it was going to closing on that following Monday. At that point, Mr. Aronson stated Mr. Manero was advised that if and when Cugini Grille would no longer be in business that the queue could go to Vic & Angelo’s as the interested party. Mr. Aronson stated from May when Cugini Grille advised staff that they would be closing for the 60 days through the end of October it was there was no contact from the license holder. Mr. Aronson stated in early November he spoke with the queue operator verifying with him that the restaurant was indeed for sale. Mr. Aronson stated he understood that through previous meetings that once the restaurant sold Vic & Angelo’s was going to receive the queue. Mr. Aronson stated November 17, 2011, he received a telephone call that the sale fell through and that they were going to be reopening but the renovations still needed to be done. At that point, staff advised Mr. Manero that he would be getting the queue and it would be moving to the Parking Management Advisory Board (PMAB) for that recommendation. Mr. Aronson stated with Mr. Krevoy’s (Cugini Grille) notice to staff that he was interested in keeping the queue staff felt that the Parking Management Advisory Board (PMAB) should hear both parties and make that decision. Staff’s recommendation was to transfer the agreement to Vic & Angelo’s. At its meeting of November 22, 2011, the Parking Management Advisory Board (PMAB) heard both parties and recommended approval of the transfer of the queue. Mr. Aronson stated this first issue to revoke the parking license agreement with Cugini Grille. The license agreement is a revocable license and can be cancelled by the City, with or without cause, at any time, effective upon the mailing of notice. Dr. Alperin asked what the advantage to the City to have individual restaurants controlling the valets. Mr. Aronson stated the City would have to enter into those agreements for those private spaces on those private properties. Dr. Alperin asked if the valet companies would be able to do this. Dr. Alperin stated it would appear logical that the City would have a bidding process for the valets to go find spaces and the valets would have to sign a contract with the City. Mr. Aronson stated this was the original intent of the City in the mid 1990’s. 21 12/06/11 Mr. Barcinski stated in the 1990’s they decided it was better to have individual private agreements and have them find the parking spaces on private lots rather than using up any City lots. Mr. Aronson stated the reason they went to the agreements being tied to the restaurants is the portability of the valets. Mr. Frankel asked if these insurance companies have insurance and stated the City would be a party. Brief discussion followed between the City Attorney, Commissioner Frankel, and staff regarding any potential lawsuits that could involve the City and/or valet. Mrs. Gray asked why we are requesting Cugini Grille to revoke the agreement. Mr. Aronson stated up until the day he was preparing the Board packet they had not communicated. Dr. Alperin asked Mr. Aronson if nobody brought it up would staff have done anything. Mr. Aronson stated when Mr. David Manero, owner of Vic & Angelo’s, asked for it in March and in April staff did not support it but it was a concern that all of a sudden it was for sale. Mr. Aronson stated there was a concern with staff and some of the Board members with valet parking becoming its own independent business. Mr. Aronson stated it was not something that was supposed to be a profit center to support a restaurant that may or may not have been able to stand on its own. Mrs. Gray stated she does not understand how staff can say let’s revoke their agreement because they did not communicate. Mrs. Gray stated if they had gone out of business then she would agree with it. The City Attorney stated at the Parking Management Advisory Board (PMAB) meeting the Board allowed both parties to speak and it is the discretion of the Commission if they wish to allow them to make a brief comment on this. Rick Burgess, 1011 West Heritage Club Circle, Delray Beach, FL (employee of 270 East Atlantic Avenue the company that owns Cugini Grille and Martini Bar), read a brief statement into the record and distributed copies to the City Commission. Michael Weiner, Attorney with Weiner & Lynne, P.A., 10 S.E. 1st Avenue, Delray Beach, FL 33444 (representing the Applicant Vic & Angelo’s), briefly discussed the ownership of Cugini Grille and the agreements as presently written stated “the agreements shall not be transferred or assigned without the express written consent of the City.” Mr. Weiner stated they have never heard from the true owner. He stated the last insurance certificate they put in was not correct so they have not met the insurance requirements. Mr. Weiner stated Mr. Aronson testified that he did receive complaints from other people as well as Blue Oyster who has said that they have had 22 12/06/11 their customers treated badly, had keys thrown at them, and have not been serviced the way they expect to be serviced. He stated the Parking Management Advisory Board (PMAB) voted 8 to 2 regarding this. Mr. Weiner urged the Commission go follow the PMAB’s recommendation and stated if the Commission wishes to re-write the ordinances and the agreement they are happy to discuss this on another night. Mr. Frankel asked when the contract is up. Mr. Aronson stated the contract is up the end of March. Mr. Frankel stated he does not see a breach of contract and there is nothing in the agreement that states you have to be an open business. Mrs. Gray stated she concurs with Commissioner Frankel. Mr. Carney stated he too does not see a breach of contract and has not seen any ads where they are selling the valet queue. Dr. Alperin stated he too concurs with Commissioner Frankel and is not in favor of revoking the license agreement at this time. Mayor McDuffie stated we need to find ways that we are not marking our merchants at odds with each other because we are working on anything that is divisive in the downtown area. Mayor McDuffie stated he does not believe there has been any breach of contract and believes it needs to run its course until March. He stated the staff needs to do some studying on this and find a way to assign these queues and suggested that the City contract these queues out as like with the Old School Square Garage. Mayor McDuffie stated that way it is not merchant against merchant it is all the City of Delray. Mr. Carney stated the City does not necessarily need a breach of contract in order to terminate this contract; the City reserves the right to do that. Dr. Alperin moved to approve the Revocation of the Valet Parking License Agreement with Cugini Grille, seconded by Mr. Frankel. Upon roll call the Commission voted as follows: Dr. Alperin – No; Mr. Frankel – No; Mrs. Gray – No; Mayor McDuffie – No; Mr. Carney – No. Said motion to approve the revocation was DENIED with a 5 to 0 vote. 9.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. Scott Aronson, Parking Management Specialist, stated this is a request to re-establish a valet queue that was established in 2006. The Saki Room occupied 401 West Atlantic Avenue in 2006 and they ran the valet queue for approximately a year but the operation of the restaurant did not pan out and subsequently the queue was not continued on its following expiration. He stated shortly after that the restaurant closed down and it has been vacant for several years. Mr. Aronson stated the parking spaces went back into the municipal pool and the valet signs were removed. He stated Breathe 23 12/06/11 Restaurant and Lounge is now occupying the space and is requesting to re-establish the valet queue. Mr. Aronson stated they have the support of the Atlantic Grove Condominium Association allowing the valet to utilize their parking lot on N.W. 4th Avenue adjacent to the Mt. Olive Church. Staff recommends approval of this valet parking queue. Mr. Frankel suggested that if the Commission approves this can they make it a condition that the restaurant has to be operational. Dr. Alperin suggested that the Commission approves this only through March. Brief discussion between the City Attorney and the Commission followed. Dr. Alperin moved to approve the assignment of the valet parking queue for Breathe Restaurant and Lounge, seconded by Mr. Carney. 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. 9.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). Mayor McDuffie stated he wished to appoint Jeffrey Conley as a regular member to the Green Implementation Advancement Board to serve an unexpired term ending July 31, 2012. Mr. Frankel so moved, seconded by Dr. Alperin. 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.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). Mayor McDuffie stated he wished to appoint Julia Kadel as a regular member to the Education Board to serve an unexpired term ending July 31, 2013. Dr. Alperin so moved, seconded by Mr. Carney. 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. At this point, the time being 8:40 p.m., the Commission moved to Item 12, First Readings. 24 12/06/11 12. FIRST READINGS: 12.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. The caption of Ordinance No. 44-11 is as follows: 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. (The official copy of Ordinance No. 44-11 is on file in the City Clerk’s office.) The City Attorney read the caption of the ordinance and stated based on comments from the Workshop Meeting on November 8, 2011, staff revised this ordinance where it has been modified to provide that the terms will be three terms and each term will be three years. Staff also added language that provides for the Commissioners that are voting on this particular ordinance and takes into account terms that have already been served. Therefore, the City Attorney stated the nine years is not a cap that you have to reach; if a Commissioner has already served and run again and are re-elected and they have already served one two-year term when this goes into effect then they are eligible to serve two more terms. The City Attorney stated it would be effective starting for the election in March 2013. Mr. Carney moved to approve Ordinance No. 44-11 on FIRST Reading, seconded by Mr. Frankel. 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. 25 12/06/11 12.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. The caption of Ordinance No. 45-11 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 4.4.9, “GENERAL COMMERCIAL (GC) DISTRICT”, SUBSECTION (G), “SUPPLEMENTAL DISTRICT REGULATIONS”, SUBSUBSECTION (3), “FOUR CORNERS OVERLAY DISTRICT”; TO CORRECT OUTDATED REFERENCES THEREIN; PROVIDING A SAVING CLAUSE, A GENERAL REPEALER CLAUSE, AND AN EFFECTIVE DATE. (The official copy of Ordinance No. 45-11 is on file in the City Clerk’s office.) The City Attorney read the caption of the ordinance. Paul Dorling, AICP, Director of Planning and Zoning, stated this ordinance is to correct outdated references concerning conditional uses allowed in the four corners overlay district. The permitted and conditional uses for the Four Corners Overlay District are contained within specific district regulations in the GC (General Commercial) District. Mr. Dorling stated there were a number of changes made to the general uses within the GC and this is to re-align the original uses the way they were identified. At its meeting of November 21, 2011, the Planning and Zoning Board reviewed this item and recommended approval with a 7 to 0 vote. Staff recommends approval. Dr. Alperin moved to approve Ordinance No. 45-11 on FIRST Reading, seconded by Mr. Frankel. 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. 12.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. 26 12/06/11 The caption of Ordinance No. 46-11 is as follows: 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 SECTION 113.02, “PROHIBITION OF CONSUMPTION OR POSSESSION OF OPEN CONTAINERS OF ALCOHOLIC BEVERAGES IN PUBLIC PLACES”, TO INCLUDE AN EXCEPTION FOR THE DELRAY BEACH ARTS GARAGE; PROVIDING A GENERAL REPEALER CLAUSE, A SAVING CLAUSE, AND AN EFFECTIVE DATE. (The official copy of Ordinance No. 46-11 is on file in the City Clerk’s office.) The City Attorney read the caption of the ordinance and stated this is to amend the Code to put the Arts Garage on the same scenario as Old School Square, the Tennis Center, and the Golf Course, etc. where the City does not require a waiver every time. Mr. Carney and Dr. Alperin disclosed that they are both on the Board of the Creative City Collaborative (CCC) and asked if they need abstain. The City Attorney stated as far as whether this passes or not will anything like that inure to their financial gain or detriment. Mr. Frankel disclosed that his law firm entered into an agreement to sponsor a series of events that are going to be held there and stated there is no financial gain. Mrs. Gray asked if they will be selling alcohol. The City Attorney stated they cannot sell alcohol at all. Dr. Alperin moved to approve Ordinance No. 46-11 on FIRST Reading, 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. 13. COMMENTS AND INQUIRIES ON NON-AGENDA ITEMS. 13.A. City Manager Robert Barcinski, Acting City Manager, had no comments or inquiries on non-agenda items. 27 12/06/11 13.B. City Attorney The City Attorney had no comments or inquiries on non-agenda items. 13.C. City Commission 13.C.1. Mr. Frankel Mr. Frankel stated the Christmas tree lighting was great and commended Sarah Martin and staff for a great job. He stated approximately 40,000 people were in attendance. Secondly, Mr. Frankel thanked the City Manager and the City Commission for allowing him to represent Delray Beach at the ATP Championships in London which he attended with Mark Baron and John Butler. Mr. Frankel stated no taxpayer money was used for him traveling to London and noted he paid for the trip out of his own pocket. Mr. Frankel stated he went to London and was excited to represent the City but left amazed with the respect that our City has on an international level. He stated Delray Beach gets criticized on the monies we spend at the tennis facility and on this tennis tournament but there is no regret on what we are doing as a city. Lastly, with regard to the water meeting, Mr. Frankel stated he would like the City Manager to speak with the City Manager from Boynton Beach regarding the attendance. 13.C.2. Mrs. Gray Mrs. Gray stated this weekend she attended the International Netball Association in our city and this is their first time having a netball conference in the United States. Mrs. Gray thanked the Palm Beach County Sports Commission, Pompey Park, and City staff who helped organize this event. She stated Delray Beach will be hosting their national event at Atlantic High School in June. Secondly, Mrs. Gray stated she and Mrs. Butler had a meeting with Senator Sachs last month on technology trying to get the transfer from the high school to the university and she is allowing us to recommend a couple of our youth. Mrs. Gray stated Village Academy is trying to put in place a technology academy. Lastly, Mrs. Gray stated last week there was community meeting from Delray Alliance and it was very well attended. 28 12/06/11 13.C.4. Mr. Carney Mr. Carney stated as a follow up to comments expressed by Commissioner Frankel some of those valet companies use City lots. Secondly, Mr. Carney stated Mayor McDuffie actually knew the street name Salina. Mr. Carney stated the parking problems at A-1-A and Casuarina have to be addressed. He stated there does not appear to be “No Parking” signs posted and believes you are allowed to park on the swales and the lot 100 feet away is empty. Lastly, Mr. Carney stated this past Saturday he had the opportunity to see the Delray Beach Chorale who performed at the First Presbyterian Church. He stated it is their 30th Anniversary and sent a note to the City Manager about doing a proclamation for them. 13.C.4. Dr. Alperin Dr. Alperin had no comments or inquiries on non-agenda items. 13.C.5. Mayor McDuffie Mayor McDuffie stated with regard to the technology issues at Village Academy we are in the process of finalizing the Tri-Party Agreement between the County, City, and Community Redevelopment Agency (CRA) on the Digital Divide Project which is wireless blanketing all of the northwest/southwest community. He stated as soon as this is signed and finalized this project will be underway. Mayor McDuffie stated a high school and elementary school are furbishing PC’s for the project; the TED Center has some wireless devices, and $90,000.00 from the CRA, $10,000.00 from private individuals, and a private organization that may donate $50,000.00. Secondly, Mayor McDuffie stated he saw an incredible article on the City of Delray Beach from the Boston Globe. Mayor McDuffie agrees with comments expressed by Commissioner Carney regarding swale parking and on-street parking being a problem throughout Delray Beach. Mayor McDuffie reminded the Commission that the Principal of Village Academy invited everyone to attend the Village Academy Meeting tomorrow night at 6:00 p.m. to discuss ideas for activating the community. He stated the tree lighting was awesome and Channel 12 & 5 was great. Mayor McDuffie stated City staff did a great job. 29 12/06/11 Mayor McDuffie stated last Tuesday he went to Coral Gables to the Japanese Consul General’s Home to celebrate the birthday of the Emperor. Mayor McDuffie stated the Japanese Consulate General is coming to City Hall tomorrow at 3:00 p.m. Mayor McDuffie stated he attended a fundraiser on the beach for St. Joseph’s and it was great. Lastly, Mayor McDuffie stated he is growing a mustache because he will be in a musical the middle of January called “From Linton with Love” written by Ernie Simon. There being no further business, Mayor McDuffie declared the meeting adjourned at 9:00 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 December 6, 2011, which Minutes were formally approved and adopted by the City Commission on ________________________. _________________________________________________________ City Clerk 30 12/06/11 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. City Commission Meeting on December 6, 2011; Item 9.A. City Commission Meeting on December 6, 2011; Item 9.A. City Commission Meeting on December 6, 2011; Item 9.B. City Commission Meeting on December 6, 2011; Item 9.B. City Commission Meeting on December 6, 2011; Item 9.C. City Commission Meeting on December 6, 2011; Item 9.C. City Commission Meeting on December 6, 2011; Item 9.C. City Commission Meeting on December 6, 2011; Item 9.D. City Commission Meeting on December 6, 2011; Item 9.D. City Commission Meeting on December 6, 2011; Item 9.D. City Commission Meeting on December 6, 2011; Item 9.D. 08/02/11 DECEMBER 13, 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, December 13, 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 Brian Shutt, City Attorney Chevelle D. Nubin, City Clerk 2. The opening prayer was delivered by Reverend Michael McClure with West Park Baptist Church. 3. The Pledge of Allegiance to the flag of the United States of America was given. 4. AGENDA APPROVAL. Mayor McDuffie stated there is revised information on Item 8.J., Amendment to the Third Addendum to the Contract for Sale and Purchase/310 Southridge Road. He stated there is additional information for Item 9.B., Appeal of An Administrative Interpretation/Boston’s Restaurant and for Item 9.H., Request for Qualifications (RFQ) Responses for Local Energy Assurance Planning (LEAP) & Training. Dr. Alperin moved to approve the Agenda as amended, seconded by Mr. Frankel. 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: Mrs. Gray moved to approve the Minutes of the Workshop Meeting of November 8, 2011, 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. 2 12/13/11 Mr. Frankel moved to approve the Minutes of the Special Meeting of November 29, 2011, 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. 6. PROCLAMATIONS: 6.A. None 7. PRESENTATIONS: 7.A. RESOLUTION NO. 55-11: Approve Resolution No. 55-11 recognizing and commending Joanna M. Weaver for 30 years of dedicated service to the City of Delray Beach. The caption of Resolution No. 55-11 is as follows: A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, RECOGNIZING AND COMMENDING JOANNA M. WEAVER FOR THIRTY YEARS OF DEDICATED SERVICE TO THE CITY OF DELRAY BEACH. (The official copy of Resolution No. 55-11 is on file in the City Clerk’s office.) Mayor McDuffie read and presented Resolution No. 55-11 to Joanna M. Weaver for thirty (30) years of dedicated service to the City of Delray Beach. Dr. Alperin moved to approve Resolution No. 55-11, seconded by Mr. Carney. 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. Brian Shutt, City Attorney, came forward and gave a few brief comments. Joanna W. Weaver came forward to accept the proclamation and gave a few brief comments. 7.B. RESOLUTION NO. 56-11: Approve Resolution No. 56-11 recognizing and commending Gail Vanhove for 30 years of dedicated service to the City of Delray Beach. The caption of Resolution No. 56-11 is as follows: A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, RECOGNIZING 3 12/13/11 AND COMMENDING GAIL VANHOVE FOR THIRTY YEARS OF DEDICATED SERVICE TO THE CITY OF DELRAY BEACH. (The official copy of Resolution No. 56-11 is on file in the City Clerk’s office.) Mayor McDuffie read and presented Resolution No. 56-11 to Gail Vanhove for thirty years of dedicated service to the City of Delray Beach. Mr. Frankel moved to approve Resolution No. 56-11, seconded by Mrs. Gray. 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. Gail Vanhove, Administrative Assistant, came forward to accept the proclamation. Linda Karch, Director of Parks and Recreation, and Alberta Gaum, Project Coordinator/Parks and Recreation, came forward and gave a few brief comments. 7.C. Planet Footprint Environmental Metrics and Scorecard – Richard Reade Rich Reade, Sustainability Officer, stated staff has been working on an Environmental Scorecard and Metrics Program and this was recommended as part of the 2009 Green Task Force Report. Mr. Reade stated recently the City Manager attended a conference and identified Planet Footprint who is out of Australia and they have an office in the United States. Mr. Reade stated they go out and collect the different environmental data whereas the City staff would normally have to do that. Mr. Reade stated Planet Footprint helps the City with reporting and monitoring energy (electric and gas), water (potable water, reclaimed water and waste water), fleet (fuel both in regular gas, diesel and propane), waste and recycling, and greenhouse gas performance to improve efficiency and effectiveness of the City. Mr. Reade stated it allows staff to track various environmental data that occurs not only within the organization but also within the community. He displayed a chart and explained that it shows 2011, 2010, and 2009 and the City has been status quo with the recycling and it gives the City an opportunity where we can make some improvements in recycling. Mr. Reade stated recycling is revenue to the City on the residential side. Therefore, Mr. Reade stated it is important for the City to do it for the environmental benefit but it also helps the sanitation fund. Mr. Reade stated Delray Beach is the first community to use this in Florida so we have been identified as the “showcase community” with Planet Footprint. Mr. Reade stated the entire project to date has been funded through the City’s Energy Efficiency and Conservation Block Grant (EECBG) and staff anticipates next year’s to also be funded through the EECBG allocation. 4 12/13/11 Mrs. Gray asked what the maintenance will be per year after the grant dollars run out. Mr. Reade stated the first year the City was at a reduced rate because we were considered a showcase city. 7.D. The Plastridge Insurance Agency – Connor Lynch (ADDENDUM) Connor Lynch stated Plastridge is pleased to be the agent for the City of Delray Beach and thanked the City Commission for the opportunity. Mr. Lynch stated the City of Delray Beach is insured through the Florida Municipal Insurance Trust which is run by the Florida League of Cities. He stated since the Trust is owned by its member of municipalities it is not designed to make a profit and in the event of a surplus these monies are returned to its membership on a pro-rated basis. Mr. Lynch stated the surplus comes from the fact that we did not have a large hurricane event and this is the return premium for the 2009/2010 policy period. Mr. Lynch presented the City of Delray Beach with this year’s return premium in the amount of $267,245.00. Mr. Lynch thanked Frank Babin, Risk Manager and the Risk Management Department for their diligent work on the City’s insurance program. 8. CONSENT AGENDA: City Manager Recommends Approval. 8.A. LANDSCAPE MAINTENANCE AGREEMENT/DECK 84: Approve a Landscape Maintenance Agreement between the City and Delray Beach Associates, Inc. for Deck 84 located at 840 East Atlantic Avenue. 8.B. ADDITIONAL SCOPE/INTERCOUNTY ENGINEERING, INC.: Approve an additional scope of services with Intercounty Engineering, Inc. for the removal of 2,000 linear feet of 2" water main and approval for the amount of $16,000.00 to be paid from the Contract's Utility Allowance for the Osceola Park Water Main Phase 2 Project. 8.C. CHANGE ORDER NO. 2/MURRAY LOGAN CONSTRUCTION, INC.: Approve Change Order No. 2 with Murray Logan Construction, Inc. for a contract time extension of thirty (30) days due to unexpected job site conditions for the Mangrove Park Boat Ramp Reconstruction. 8.D. PROPOSED CHANGES TO THE GENERAL EMPLOYEES RETIREMENT PLAN PENSION FUND INVESTMENT POLICY: Approve proposed changes to the General Employees Retirement Plan Pension Fund Investment Policy. 8.E. AMENDMENT NO. 1 TO THE JOINT PARTICIPATION AGREEMENT (JPA)/FLORIDA DEPARTMENT OF TRANSPORTATION (FDOT): Approve Amendment No. 1 to the Joint Participation Agreement (JPA) with the Florida Department of Transportation (FDOT) to extend the current expiration date to December 31, 2012 to be consistent with the time allotted for the one-year maintenance of the project associated with the West Atlantic Avenue Landscape Median Project. 5 12/13/11 8.F. REQUEST FOR PROPOSAL (RFP)/OFF-DUTY DETAIL PROGRAM: Approve the RFP Selection Committee’s recommendation of the Delray Beach Public Library to administer the Police Department’s Off-Duty Detail program. 8.G. FY 2012 STATE LEGISLATIVE PRIORITIES: Approve the City's proposed 2012 State Legislative Priorities. 8.H. BONUS PAYMENT TO JCD SPORTS GROUP, INC.: Approve FY 2010/2011 bonus payments to JCD Sports Group, Inc. for golf course operations in the amount of $16,620.00 and for Tennis Center operations in the amount of $6,909.00. Funding is available from 445-4711-572-34.90 (Delray Beach Municipal Golf Course Fund: Other Contractual Service), 446-4711-572-34.90 (Lakeview Golf Course: Other Contractual Service), 001-4215-575-34.90 (General Fund: Operating Expenses-Miscellaneous/Other Contractual Service) and 001-4210-575-34.90 (General Fund: Operating Expenses-Misc/Other Contractual Service). 8.I. CONTRACT ADDITION (CHANGE ORDER NO. 2)/BRANG CONSTRUCTION, INC.: Approve Contract Addition (Change Order No. 2) with Brang Construction, Inc. in the amount of $15,471.00 for one (1) additional bus shelter as requested by Palm Tran and for a contract time extension of 208 days for the ARRA Bus Shelters Project. Funding is available from 101-3163-544-65.70 (ARRA Economic Stimulus FD: Other Improvements/Transit Stop Bus Shelters). 8.J. AMENDMENT TO THE THIRD ADDENDUM TO THE CONTRACT FOR SALE AND PURCHASE/310 SOUTHRIDGE ROAD: Approve an Amendment of the third addendum to the contract to sell/transfer one (1) NSP property to the Delray Beach Community Land Trust (DBCLT) for the benefit and resale of the unit to a household with an income less than one-hundred percent (120%) of Area Median Income (AMI) as determined by HUD. 8.K. REVIEW OF APPEALABLE LAND DEVELOPMENT BOARD ACTIONS: Accept the actions and decisions made by the Land Development Boards for the period December 5, 2011 through December 9, 2011. 8.L. AWARD OF BIDS AND CONTRACTS: 1. Contract award to Duraclean Restoration and Remediation in the amount of $24,884.73 to abate the mold and asbestos inside the building at 80 Depot Avenue. Funding is available from 334-6111-521-46.90 (General Construction Fund: Repair & Maintenance Services/Other Repair/Maintenance Costs). 2. Purchase award to Chemical Lime Company of Alabama, Inc. at an annual estimated cost of $750,000.00 for the purchase of bulk quicklime via the City of Boynton Beach Bid No. 005-2821-09/JA. Funding is available from 441-5122-536-52.21 (Water and Sewer Fund: Operating Supplies/Chemicals). 6 12/13/11 Mr. Frankel moved to approve the Consent 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. 9. REGULAR AGENDA: 9.A. APPEAL OF SITE PLAN REVIEW APPEARANCE BOARD’S DECISION: BOSTON’S RESTAURANT: Consider an appeal of a Site Plan Review Appearance Board’s Decision to approve the Class V site plan, landscape plan and architectural elevations for the proposed Boston’s Restaurant expansion located at 40 South Ocean Boulevard. (Quasi-Judicial Hearing) Mayor McDuffie read the City of Delray Beach Quasi-Judicial rules into the record for this item and all subsequent Quasi-Judicial items. Chevelle D. Nubin, City Clerk, swore in those individuals who wished to give testimony on this item. Mayor McDuffie asked the Commission to disclose their ex parte communications. Mr. Frankel stated he received letters from the appellant a couple of weeks ago; he previously received a tour from a representative from Ocean Properties before the new Boston’s opened; and had lunch upstairs at Boston’s with no communications (same for Item 9.A. & 9.B.). Mrs. Gray stated she had no ex parte communications to disclose except for the mail the Commission received. Mayor McDuffie stated in addition to the letter he had five emails from the public which he will forward to the City Clerk. Mayor McDuffie stated some time ago the applicant came before the Commission and stated Tom McMurrian is his cousin and Ms. Ruby at the time researched to see if there was any conflict and there is not therefore he will be voting on this item. Mr. Carney stated he had a brief conversation with the architect of Currie Sowards Aguila Architects and a passing conversation with Attorney Michael Weiner not discussing the issue but just saying that it would be coming before the Board. He had a conversation with architect Gary Eliopoulos about the effect of walls, etc. on noise mitigation. Dr. Alperin stated he received the same letters and emails and no discussion. Paul Dorling, AICP, Director of Planning and Zoning, entered the Planning and Zoning project file #2011-194 into the record. Mr. Dorling stated staff received an additional letter of opposition today. Mr. Dorling stated on October 26, 2011, the Site Plan Review and Appearance Board (SPRAB) approved a Class II site plan modification which did have some minor changes to the alignment of the entry and exit driveways and some parking improvements to the existing parking lot in association with the revamping of the existing 7 12/13/11 Boston’s building. He stated that was followed up with a Class V site plan which provided additional parking to the rear, three new accessory structures for storage, men and women’s restrooms, construction of a new outdoor bar, platform deck, lobster cooker hut and outdoor seating and dining areas on property immediately to the south of the existing Boston’s restaurant which was previously occupied by Bermuda Inn. Mr. Dorling stated on November 23, 2011, the Commission received a letter from an attorney and his wife, owners of Unit #1 immediately to the south. Staff believes that the Class V approval is for outdoor dining use and does not include elements which are potentially incompatible with these residential uses like the outside music. Mr. Dorling stated the appeal outlines reasons for the appeal and center around the compatibility of this use with adjacent residential properties. He stated while the appeal talks about the appropriateness of the entire outside use including dining there is a significant concern with respect to outside entertainment. Mr. Dorling stated staff believes that the Class V approval is for outside dining use and does not include elements which are potentially incompatible with these residential uses like the outside music. Mr. Dorling stated not including outside hours nor hours of operation past midnight, staff believes that SPRAB made the required findings for the Class V and that the appeal should be denied, upholding SPRAB’s decision. Zorian Sperkacz, 12000 Biscayne Boulevard #415, Miami, FL 33181 (representing the Brannen’s), stated the Brannen’s property is the closest property to this development and they oppose the entire development. Mr. Sperkacz stated in the alternative they feel there should be additional mitigation measures that should be mandated by the Commission before allowing any of the outdoor dining and bar. Mr. Sperkacz stated the area to the south is all residential and the Commission has gone through great efforts to keep that area low density. He stated this used to be a little motel that had very little traffic, there is virtually no buffer between the north wall and the twoway driveway on the south side of this property. Mr. Sperkacz stated the applicant has put a wall up around the dining area to protect their patrons from the traffic on that driveway but they have not done anything to protect the condominium on the south property line from traffic. Mr. Sperkacz stated page 12 & 13 of the November 9, 2011 staff report focuses on two issues in determining that this project is harmonious and compatible with the residential area but they are only looking at if there is going to be live entertainment and as long as they close at midnight they can allow this as a harmonious compatible use. Mr. Sperkacz stated they feel that live entertainment is inconsistent with a residential neighborhood 30-40 feet away and do not feel that closing at midnight is sufficient to protect the residents. Mr. Sperkacz suggested that 9:00 p.m. would be the end of service with 10:00 p.m. for the outdoor area being closed altogether. He stated they are also concerned about traffic along that south driveway back and forth particularly at closing time. He stated there is no buffer between the driveway and the wall of his clients unit and suggested to put up a wall along the south side of the driveway on the north edge of the Bahama House property line in addition to the wall that they are putting around their patrons to protect them from that driveway. Mr. Sperkacz stated it is his understanding that there was no consideration given from SPRAB regarding the odor from the commercial lobster cooker going into the condominium unit. Mr. Sperkacz stated they agree with the Planning and Zoning Board’s interpretation that live 8 12/13/11 entertainment should not be permitted with this use but in the event that the Commission feels that it is an accessory use, SPRAB and Planning and Zoning could have imposed additional conditions as part of approval of the Class V site plan. Alan Ciklin, representing the owners of Boston’s (Applicant), 515 North Flagler Drive, West Palm Beach, FL, stated this is not a residentially zoned piece of property; it is in the CBD (Central Business District) category and this type of use is a permitted use within that district. Mr. Ciklin stated SPRAB approved the Boston’s site plan on November 9, 2011 and spent over an hour discussing the compatibility issues. He stated residents from the Bermuda House appeared, asked questions, and supported the project. Mr. Ciklin stated neither Mr. nor Mrs. Brannen was at the SPRAB hearing and it makes it very difficult for them to appeal a decision that they were not a part of. Mr. Ciklin stated their appeal is based on two citations; one is Housing Element Policy A-11.3 which states “In evaluating proposals for new development, 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.” He stated SPRAB unanimously approved that there was not a degradation of any neighborhood. Mr. Ciklin stated the second portion of their appeal sites a Code section that does not exist. He stated it may have been a typographical error and noted the “s” at the end of the LDR section probably should have been a “5” and that section states “the approving body must make a finding that development of the property pursuant to the site plan will be compatible and harmonious with adjacent and nearby properties in the city as a whole so as not to cause substantial depreciation of property values.” He stated the other was that the project had to result in a degradation of a neighborhood none of which was considered to be the case in the SPRAB approval. Mr. Ciklin stated the substantial competent evidence is the testimony at SPRAB, the official file, and the testimony and recommendation of staff. Mr. Ciklin stated there is no substantial competent evidence to grant this appeal. Bob Currie, Architect with Currie Sowards Aguila Architects, stated resident of the adjacent property, stated this project is going to be a great asset to the community. Mr. Currie stated everyone else in the condominium is in approval of this. Mr. Currie stated there was a motel there that was is disrepair and it had a swimming pool and it was all open to the development and noted they had plenty of noise that way. Mr. Currie stated they have gone to great lengths to mitigate the noise by putting up a wall, a landscape island, another landscape island, and a 12 foot hedge. Mayor McDuffie stated if anyone from the public would like to speak in favor or in opposition of the appeal, to please come forward at this time. 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), stated this is an asset to Delray Beach and he loves 9 12/13/11 the idea. There being no one else from the public who wished to address the Commission regarding the appeal, the public hearing was closed. Mr. Sperkacz stated the Brennan’s did not get notice of the proceedings until the day after the SPRAB hearing and they specifically written a letter earlier and asked that the City give them notice of the hearing. Therefore, Mr. Sperkacz stated the reason the Brennan’s did not attend because they did not know about it. Mr. Dorling stated there is no required notice but there is a Comp Plan that talks about neighborhood groups and can receive notice. Mr. Dorling stated the City sent a courtesy notice on October 28th to the representative for the Bahama House as well as the Bahama House condo. He stated the notice for the Bahama House condo was returned undeliverable and the one to the association to Matt Gracey was received. Mr. Dorling stated after receiving one of the notices back staff did provide a copy of a courtesy notice which was posted on the property on November 7, 2011 in the internal courtyard area and a copy was mailed to each condo owner. Mr. Dorling stated there were several attempts to notice on this property. Mr. Ciklin stated Mr. Gracey is an officer of the association and appeared at the SPRAB hearing, asked some questions, and offered his endorsement of the project. Mr. Carney stated he is generally troubled by notice at times when people are out of town and things take a while to get to them. Mr. Carney expressed concern that this would go until midnight so close to a residential neighborhood. Mr. Carney stated the City did comply with the Statute as it relates to notice but he does acknowledge that there are some issues with respect to noise and great efforts were made to mitigate that with respect to the hedge and the walls. Dr. Alperin concurred with comments expressed by Commissioner Carney. Dr. Alperin asked if by the acceptance of the site plan of the platform commits any board of the City to entertainment just because there is a platform. Mr. Dorling stated in the staff report and discussions during the SPRAB meeting it was made clear that any outside entertainment performed on the platform would require an additional conditional use process in which appropriate mitigation measures could be applied. Mr. Dorling stated that is subject to appeal by the applicant on the next agenda item. Dr. Alperin stated he wanted to make sure that if it is approved it does not mean the platform will be used for that purpose. Mrs. Gray stated the applicant asked about the odor from the lobster cooker and asked if something can be done about this. Mr. Ciklin stated the lobster cooker has been eliminated and noted it is just a summer kitchen and outdoor grill. Mr. Frankel stated he has been to Boston’s and the improvements that have been made to the indoor area are remarkable. Mr. Frankel stated he has no doubt 10 12/13/11 that the proposed outdoor area is going to be the same. He stated there have not been any other complaints about this in particular many members of the BPOA in the audience who are very vocal when there is a problem in that area and did not see anyone come to the microphone to complain. In addition, Mr. Frankel stated SPRAB was unanimous in their approval. Therefore, Mr. Frankel stated he will support denying the appeal. Mayor McDuffie stated when the Commission is presented with issues of noise everyone becomes very sensitive because there are issues of noise that we deal with downtown on a regular basis. Mayor McDuffie stated as testimony went this evening his concern would be outdoor music and at this point there is none. He stated if that were to happen it would have to be brought before a board or the City Commission. The Commission is very sensitive to that and they would take a strong look at music and the times of day that it is played. Mayor McDuffie stated multiple boards in the City are seated to review these things. He stated he is looking for substantial competent evidence for the Commission to overturn a decision that was made a competent board in the city and he hears none. Dr. Alperin asked if the lack of a lobster cooker become part of the record in the vote. The City Attorney stated he would like to get the applicant’s consensus on that and put a condition on the Board Order that the lobster cooker is removed and it will be replaced by an outdoor grill that meets all the City codes. The City Attorney reviewed the Board Order with the Commission who made findings according to their consensus (attached hereto is a copy and made an official part of the minutes). Dr. Alperin moved to adopt the Board Order as presented (denying the appeal) subject to the following conditions set forth in Exhibit C and D as well as the condition that provides the removal of the lobster cooker with a grill apparatus, 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. 9.B. APPEAL OF AN ADMINISTRATIVE INTERPRETATION/BOSTON’S RESTAURANT: Consider the appeal of an administrative interpretation by the Director of Planning and Zoning that a conditional use approval is required for the outdoor entertainment component to be located on the Boston’s Restaurant expansion area located at 40 South Ocean Boulevard. (Quasi-Judicial Hearing) Alan Ciklin, Attorney, stated they have spoken to Mr. Brannen’s lawyer and Mr. Dorling and requested to postpone this item to the January 3, 2012 agenda and make an effort to reach out to Mr. Brannen and see if they can resolve the issue and satisfy him. Mr. Carney moved to postpone Item 9.B. to a date certain of January 3, 2012, seconded by Mr. Frankel. Upon roll call the Commission voted as follows: Mr. 11 12/13/11 Carney – Yes; Dr. Alperin – Yes; Mr. Frankel – Yes; Mrs. Gray – Yes; Mayor McDuffie – Yes. Said motion passed with a 5 to 0 vote. 9.C. WAIVER REQUEST/302 N.E. 7TH AVENUE: Consider a waiver request to Land Development Regulations (LDR) Section 4.6.7(E)(7), “Design Standards Matrix”, which requires signs be located at least 10’ from any property line, to permit the sign to be located 5’ from the front and side street property lines for 302 N.E. 7th Avenue. (Quasi-Judicial Hearing) Chevelle D. Nubin, City Clerk, swore in those individuals who wished to give testimony on this item. Mayor McDuffie asked the Commission to disclose their ex parte communications. The Commission had no ex parte communications to disclose. Paul Dorling, AICP, entered the Planning and Zoning project file #2012-022 into the record. Mr. Dorling stated this item is before the Commission for approval of a waiver to LDR Section 4.6.7(E)(7) to permit a business sign within ten feet of both the front and side street property lines. He stated it is within five feet of both the south and east property lines and requires a waiver. The LDRs require a ten foot setback. At its meeting of December 7, 2011, the Historic Preservation Board (HPB) approved with conditions a Certificate of Appropriateness (COA) for the installation of a new freestanding sign and the Board recommended approval of the associated waiver. Staff recommends approval of the waiver request. Mayor McDuffie asked if anyone from the public would like to speak in favor or in opposition of the waiver request, to please come forward at this time. There being no one from the public who wished to address the Commission regarding the waiver request, the public hearing was closed. No cross-examination or rebuttal. Dr. Alperin asked if this is approved can the applicant increase it to the maximum size or can they make it so that it has to that size and no bigger. Mr. Dorling stated if the applicant came to HPB with a bigger sign that had the same dimensions; this waiver would apply to that. Dr. Alperin asked if the Commission can make this waiver restricted to this size and not allow them to go to the maximum size. The City Attorney suggested that the Commission can make a condition that this applies to the sign that has already been approved currently by HPB. The City Attorney stated if they want to make a change in the size of the sign they would go back to HPB but then they would also have to come back to the Commission to modify that condition. 12 12/13/11 It was the consensus of the Commission that this applies to the sign that was currently approved by HPB as evidenced in the photo that has been provided to the Commission. For clarification, Dr. Alperin asked if this ordinance has any impact on bed and breakfast. Mr. Dorling stated it would not apply. The City Attorney reviewed the Board Order with the Commission who made findings according to their consensus (attached hereto is a copy and made an official part of the minutes). Mr. Carney moved to adopt the Board Order as presented subject to the condition for the Certificate of Appropriateness (COA) that was approved for the sign as it relates to the dimension and the size of the sign, seconded by Mr. Frankel. 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.D. ALLEY NAMING REQUEST: Consider a request to name the alley east of N.E. 3rd Avenue, running between N.E. 3rd Street on the south; and N.E. 4th Street on the north, as "Artists Alley". Randal Krejcarek, City Engineer, stated this item was initiated by a resident of Delray Beach. The alley is a north-south alley located east of N.E. 3rd Avenue and running between N.E. 3rd Street on the south; and N.E. 4th Street on the north. The request is to name the alley in Pineapple Grove as “Artists Alley”. The City has a general policy to not rename streets. The City Manager stated the alley is unique and currently they are addressed off 4th and it would make more sense to have them addressed off the alley. Dr. Alperin stated he would like to hear from Pineapple Grove Association and the people who will be using that name on the street. He stated he does not feel the City should be making a decision based on one recommendation. Mr. Frankel expressed concern that this sets a precedent. Mr. Carney moved to postpone the alley naming request, 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. 9.E. HOUSING REHABILITATION GRANT/CONTRACT AWARD: Award one (1) Housing Rehabilitation contract to the second lowest responsive bidder, All Phase Roofing & Construction, through the Disaster Recovery Initiative (DRI) Program for 401 S.W. 10th Street in the amount of $32,422.65. Funding is available from 118-1960-554-49.19 (Neighborhood Services: Other Current 13 12/13/11 Charges/Housing Rehabilitation). Lula Butler, Director of Community Improvement, stated this item is to approve the award for a housing rehabilitation grant awarded to the second lowest responsive bidder. Mrs. Butler stated this property is located at 401 S.W. 10th Street. Staff recommends All Phase Roofing & Construction in the amount of $32,422.65. Mrs. Butler stated staff is using a professional in-house estimate to determine if we have good bids. The bids were advertised on August 9, 2011 and the bids were opened on September 6, 2011. The City received four (4) bids and range between $21,000.00 and $55,000.00. Mrs. Butler stated staff uses is in-house policy to determine what is a fair bid because they do these rehabs with property owners still living in their homes and the policy serves to disqualify unreasonably low bids to protect against resulting in change order requests. She stated this bid was 38% below the in-house estimate. Staff consulted with Palm Beach County Housing and Community Development that supplies these dollars. They agreed to allow the lowest bidder to withdraw his bid. Therefore, staff recommends awarding the bid to the second lowest responsive bidder in the amount of $32,422.65. Mr. Frankel moved to approve the Housing Rehabilitation bid to All Phase Roofing & Construction (second lowest responsive bidder) in the amount of $32,422.65, 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.F. REQUEST FOR QUALIFICATIONS (RFQ) RESPONSES FOR ENGINEERING CONSULTANTS/CAPITAL IMPROVEMENT PROJECTS (CIP): Consider approval of the Engineering RFQ (RFQ# 2012-06) short list and authorization for staff to negotiate contracts with each firm on the short list. Project #12-057. Randal Krejcarek, City Engineer, stated this item is for Commission approval for staff to enter into continuing contract agreements with five (5) engineering firms. Mr. Krejcarek stated staff advertised in October 2011 for a Request for Qualifications (RFQ) for projects in the Capital Improvement Program (CIP) as potential projects that would be handled underneath these continuing services. He stated thirtyfour (34) firms responded and the committee unanimously agreed on the following five firms: Matthews Consulting, Kimley-Horn & Associates and Calvin, Giordano & Associates, Corzo Castella Carballo Thompson Salman, and Wantman Group. Mr. Krejcarek stated since he has been with the City they have gone out for engineering RFQ’s in 1999, 2003, 2007 and 2011. He stated in 2003 staff chose five firms and two of the firms were new firms at the time and they did not perform up to standards and as a result ended up with three firms. Mr. Krejcarek stated this is why staff is going with five (5) firms this time. Dr. Alperin expressed concern about some irregularities in the scoring and ranking. Dr. Alperin stated when he reviewed the RFQ’s he noticed that Craig A. Smith 14 12/13/11 has 3-D technology of finding underground problems. He stated if there is a technology available that will avoid having that kind of problem and expense; he does not know why they were not ranked higher. Mr. Carney commented about the 3-D technology to find underground problems and asked if it is relevant. Mr. Krejcarek stated he does not feel it is relevant because the process staff uses they feel comfortable with and have been very successful with it. Mr. Krejcarek stated what staff found to be a better way of handling and identifying where the underground utilities are is by doing soft digs. He stated staff will layout the initial layout of the underground pipes, identify the areas where there is potential conflicts and then do soft digs to find that pipe where the conflict is going to be. Mr. Krejcarek stated staff has had very good success in the past few years doing it this way and noted that it is less costly doing it with the soft digs. Mr. Krejcarek stated staff has been very successful in identifying existing facilities underground using this technique and staff feels very confident in the results that they get. Mrs. Gray asked if this group can be added to the list of names. Mr. Krejcarek stated in their proposals there are other firms that also suggested that they were going to use that same technology. Dr. Alperin asked how they are getting it if Craig A. Smith is saying they have exclusive rights to use it. Mr. Krejcarek stated he would have to research this. The City Manager stated you have to be careful choosing a firm based on one aspect of their service and perhaps technology should be included in the scoring. The City Manager stated there are other factors as well in providing good quality service. The City Attorney suggested that if the Commission would like a new technology aspect to be weighted in this then the City would not accept any of these and give staff direction to go back out again. The City Attorney stated we would have to do another RFQ with language like that in the RFQ to that everyone is bidding on everything equally. The City Manager asked if staff re-did the process how long would it take. Mr. Krejcarek stated it would take approximately three months. Dr. Alperin moved to approve the short list for the engineering RFQ to include the five firms and add Craig A. Smith to negotiate the contracts, seconded by Mrs. Gray. 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. 15 12/13/11 9.G. REQUEST FOR QUALIFICATIONS (RFQ) RESPONSES FOR LAND SURVEYING CONSULTING SERVICES/CAPITAL IMPROVEMENT PROJECTS (CIP): Consider approval of the Land Surveying Consulting Services RFQ (RFQ# 2012-07) responses short list and authorization to negotiate contracts with each of the five (5) companies on the short list. Project #12-058. Randal Krejcarek, City Engineer, stated this is second of three RFQ’s that staff put out in October. Mr. Krejcarek stated this is for the surveying continuing contract which staff received 22 responses. Staff is looking to enter into an agreement with the following five (5) companies: Avirom & Associates, Inc., Bruce Carter & Associates, Inc., Dennis J. Leavy & Associates, Inc., Wantman Group, Inc. and Caulfield & Wheeler, Inc. Mr. Carney moved to approve the short list and authorization to negotiate contracts with the short listed firms, seconded by Mrs. Gray. 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. 9.H. REQUEST FOR QUALIFICATIONS (RFQ) RESPONSES FOR LOCAL ENERGY ASSURANCE PLANNING (LEAP) & TRAINING: Consider approval of the ranking of respondents to Request for Qualifications (RFQ) #2011-16 for Local Energy Assurance Planning & Training and authorization for staff to negotiate a contract with the top ranked firm. Doug Smith, Assistant City Manager, stated this item is to consider approval of a ranking of the respondents that we receive for a Request for Qualifications (RFQ) for Local Energy Assurance Planning & Training grant the City received. Mr. Smith stated only two firms responded to this Langton Associates, Inc. and EMC Engineers, Inc. (a subsidiary of Eaton Corporation). Mr. Smith stated the staff committee hears presentations from these firms and today the committee went through their rankings. Mr. Smith stated the overall rankings worked out with Langton Associates, Inc. as the number one ranked firm and EMC Engineers, Inc. as the second ranked firm. Mr. Smith stated although there was not a consensus in the ranking among the staff committee as a committee they recommend Commission authorization for staff to enter into negotiations first with Langton Associates, Inc. and if that contract does not work out to move onto EMC Engineers, Inc. He stated in either case the agreement will come back to the Commission for approval. Mr. Carney moved to approve the Request for Qualifications (RFQ) Responses for Local Energy Assurance Planning (LEAP) & Training, 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. 16 12/13/11 9.I. CONTRACT AWARD/O.T. SERVICES: Consider a contract award to O.T. Services in the amount of $31,920.00 annually for janitorial services at the Delray Beach Golf Course. Funding is available from 445-4711-572-34.90 (D B Municipal Golf Course: Other Contractual Services). Mr. Frankel moved to approve the contract award to O.T. Services in the amount of $31,920.00 annually for janitorial services at the Delray Beach Golf Course, seconded by Mr. Carney. 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 8:41 p.m., the City Manager requested to move to Item 9.K. since Mr. Wilk is present. 9.K. PROPOSAL FOR A CONGRESS CORRIDOR MARKETING PLAN: Consider accepting a proposal for creating a strategic marketing plan for the Congress Avenue Corridor. The City Manager stated the City received a proposal from Mr. David Wilk for preparing a strategic marketing plan for Congress Avenue and feels it would be a great step in the right direction. The City Manager stated the City has checked references on other projects they have done and received a positive response. Dr. Alperin stated the initial strategic marketing plan is going to be in the range of $7,500-$10,000.00. Mr. Wilk stated there will be other costs coming. Dr. Alperin stated he just wants everyone to be aware that this is not the total cost and there are other potential costs forthcoming. Mayor McDuffie stated a number of years ago he got his eye opened by some events that he attended with corporate relocators. He stated everyone has worked so diligently so that they could attract new business to Delray Beach. Mayor McDuffie stated it was an issue were three mayors were on the dais and talked to the gentleman about everything they did to prep their city for economic growth and then they switched places and they got up on the dais. Mayor McDuffie stated they informed them that the presentation was great and that they expect all of that before they get off the plane. The City Manager stated it will be very valuable to have a national perspective and give the City a marketing approach. Dr. Alperin moved to accept the proposal for creating a strategic marketing plan for the Congress Avenue Corridor, 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. 17 12/13/11 At this point, Mr. Wilk thanked the Commission for the opportunity to work with the City and stated he has already had a meeting with the new CBRE broker who has listed the Office Depot property. Mr. Wilk stated he, the City Manager, and Mayor McDuffie discussed in the initial meetings they want to go up the corridor all the way up to Atlantic Avenue and create a branding, marketing strategy, and a vision for that area that is going to bring the world to Delray Beach. Mrs. Gray asked if there is a deadline for when this plan will be completed. Mr. Wilk stated he would like to present something to the community at the end of January or the end of February. Mr. Wilk stated in about 30 days he would like to have an initial meeting to review progress and asked the Commission to let him know whatever format is best to do that. At this point, the Commission moved to Item 9.J. 9.J. ANNUAL STATE OF THE CITY/CITIZEN'S ROUNDTABLE MEETING: Discuss options related to the Annual State of the City and Citizen's Roundtable Meetings. The City Manager stated staff would like to get direction and offer possible options either in place of or in conjunction with the Town Hall meeting. Mr. Frankel stated he believes staff puts a great deal of time and effort into the presentations and the work. He stated in his view for the very few people who turn out it is not a good time spent. Mr. Frankel stated last year it was the same time as the State of the Union Address and feels this hurt turnout and the fact that it starts at a late hour people are tired and they do not want to be somewhere for three hours. Mrs. Gray stated there is more staff present than residents but she would like to hear the other options. Mr. Carney concurred with comments expressed by Commissioner Frankel and Commissioner Gray and stated the meetings are very long and staff puts in hundreds of hours to do this. Mr. Carney stated the format should be more concise and follow up which more people can access through links on the internet may be a better use of everyone’s time. The City Manager suggested bringing back the Citizen Summit as part of the goal setting and stated this is more productive. Dr. Alperin stated it is time to look at new technology for other ways of getting the input. He stated every other week there is a meeting and potential for people to attend and speak. Dr. Alperin stated the City puts out plenty of communication. Mayor McDuffie concurred with comments expressed by the rest of the Commission. 18 12/13/11 Rich Reade, Sustainability Officer, introduced Peak Democracy via conference call and this is a tool that the City Manager brought back from another conference. Mr. Reade stated staff had the opportunity to discuss this with Peak Democracy and noted this is an exciting tool to attract comments from people’s homes. Mr. Reade stated this would be external and monitored by this company. Mike from Peak Democracy gave a brief PowerPoint presentation regarding the product. Mr. Frankel stated not only is there a cost savings but this is something that works year-round that provides the Commission and the City better information. Mr. Frankel stated he would support the annual cost and cancel the Citizen’s Roundtable Meeting. Mr. Carney stated the Roundtable has some merit. Dr. Alperin asked if the Commission can respond to the community through this. Mr. Reade stated it would be an overall response to the issue itself. Mr. Reade stated this tool would give people the opportunity to comment as though it were a public hearing; it would be closed prior to the meeting and provided to the Commission as backup and they would have an additional resource as well. Mrs. Gray states she supports the open Town Hall meeting but she would still like to see something where the Commission can invite people because everyone does not have a computer. Brief discussion ensued between staff, the Commission, and the representative from Peak Democracy. After brief discussion, it was the consensus of the Commission to move forward with this and cancel the meeting on January 24, 2012. At this point, the time being 7:04 p.m., the Commission moved to the duly advertised Public Hearings portion of the Agenda. 10. PUBLIC HEARINGS: 10.A. ORDINANCE NO. 47-11 (FIRST READING/FIRST PUBLIC HEARING): City-initiated amendment to the Land Development Regulations (LDR) Sections 4.4.6 “Medium Density Residential (RM) District”, 4.4.9 “General Commercial (GC) district”, 4.4.12 Planned Commercial (PC) District, 4.4.13 “Central Business (CBD) District” and 4.4.28 Central Business District–Railroad Corridor, to provide that assisted living facilities will be allowed in the same manner as multiple family residential developments with respect to the number of units and density. If passed, a second public hearing will be held on January 3, 2012. 19 12/13/11 The caption of Ordinance No. 47-11 is as follows: AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AMENDING THE LAND DEVELOPMENT REGULATIONS, BY AMENDING SECTION 4.4.6, “MEDIUM DENSITY RESIDENTIAL (RM) DISTRICT, SUBSECTION (D), “CONDITIONAL USES AND STRUCTURES ALLOWED”, SECTION 4.4.9, “GENERAL COMMERCIAL (GC) DISTRICT”, SUBSECTION (B), “PRINCIPAL USES AND STRUCTURES PERMITTED”, SECTION 4.4.9, “GENERAL COMMERCIAL (GC) DISTRICT”, SUBSECTION (G)(3)(4), “MULTIFAMILY DWELLING UNITS”, SECTION 4.4.12, “PLANNED COMMERCIAL (PC) DISTRICT”, SUBSECTION (G), “SUPPLEMENTAL DISTRICT REGULATIONS”, SECTION 4.4.13, “CENTRAL BUSINESS (CBD) DISTRICT”, SUBSECTION (D), “CONDITIONAL USES AND STRUCTURES ALLOWED”, SECTION 4.4.28, “CENTRAL BUSINESS DISTRICT-RAILROAD CORRIDOR (CBD-RC)”, SUBSECTION (D), “CONDITIONAL USES AND STRUCTURES ALLOWED, TO ADD ASSISTED LIVING FACILITIES TO THE LIST OF ALLOWED USES IN THE SAME MANNER AS MULTIPLE FAMILY RESIDENTIAL USES IN ORDER TO BRING CONSISTENCY BETWEEN THE LAND DEVELOPMENT REGULATIONS AND STATE AND FEDERAL LAWS, PROVIDING A SAVING CLAUSE, A GENERAL REPEALER CLAUSE, AND AN EFFECTIVE DATE. (The official copy of Ordinance No. 47-11 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 is to add assisted living facilities to the list of allowed uses in the same manner as multi-family uses to bring consistency between the LDRs, State and Federal law. Similar recent amendments were processed by the City Commission April 15, 2008 and January 19, 2010 which allowed assisted living facilities to be accommodated similarly with respect to number of residents and units to either single-family duplex or multi-family uses in zoning districts where these uses are allowed. Mr. Dorling stated subsequently it was 20 12/13/11 discovered that we did not accommodate in the same manner as these multi-family uses in two situations; those that apply to special regulations that allow for increased density in certain zoning districts and certain regulations which apply to overlay districts. At its meeting of November 21, 2011, the Planning and Zoning Board considered this item and recommended approval with a 6 to 1 vote (Gerry Franciosa dissenting). Mayor McDuffie declared the public hearing open. There being no one from the public who wished to address the Commission regarding Ordinance No. 47-11, the public hearing was closed. Dr. Alperin moved to approve on First Reading/First Public Hearing, seconded by Mr. Carney. 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. 10.B. ORDINANCE NO. 48-11 (FIRST READING/FIRST PUBLIC HEARING): Consider a city-initiated amendment to Land Development Regulation (LDR) Section 4.3.3, “Special Requirements for Specific Uses”, by enacting a new Subsection 4.3.3(AAAA), “Simulated Gambling Devices”, in order to prohibit use of same and to enact a new definition of, “Simulated Gambling Devices”. If passed, a second public hearing will be held on January 3, 2012. The caption of Ordinance No. 48-11 is as follows: AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AMENDING THE LAND DEVELOPMENT REGULATIONS OF THE CITY OF DELRAY BEACH BY AMENDING SECTION 4.3.3, “SPECIAL REQUIREMENTS FOR SPECIFIC USES”; BY ENACTING A NEW SUBSECTION 4.3.3(AAAA), “SIMULATED GAMBLING DEVICES”, IN ORDER TO PROHIBIT USE OF SAME AND AMENDING APPENDIX “A” TO ENACT A NEW DEFINITION OF “SIMULATED GAMBLING DEVICES”; PROVIDING A GENERAL REPEALER CLAUSE, A SAVING CLAUSE, AND AN EFFECTIVE DATE. (The official copy of Ordinance No. 48-11 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. 21 12/13/11 Paul Dorling, AICP, Director of Planning and Zoning, stated this is a cityinitiated amendment to the LDRs that will prohibit simulated gambling devices and their related places of business sometimes referred to as internet or sweepstake cafés. Mr. Dorling stated these businesses utilize simulated gambling devices and have been referred to as cyber cafés, sweepstake cafés, or internet cafés. He stated the concept is to sell internet access or telephone cards and then enter sweepstake systems on computers at a business and then enter games that they win ultimately cash prizes. Mr. Dorling stated this circumvents the current gambling laws because the purchase of computer time or phone cards to enter sweepstakes on a gaming website is not paying to play a game for money. Staff recommends that we prohibit them at this time. Mr. Dorling stated this is a difference between adult gaming facilities which are allowed in the City as a conditional use in certain zoning districts and those are different in that we limit those gaming facilities to maximum retail values of individual prizes to .75 a game. At its meeting of November 21, 2011, the Planning and Zoning Board 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. 48-11, the public hearing was closed. Mr. Frankel moved to approve on First Reading/First Public Hearing, seconded by Mrs. Gray. 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. At this point, the time being 7:11 p.m., the Commission moved to Item 11, Comments and Inquiries on Non-Agenda Items. 11.A. City Manager’s response to prior public comments and inquiries. The City Manager stated at the last meeting Dr. Kirson was concerned about homeless people on the beach and connected that with the large number of rehab and sober houses in the city. In the Police Department’s response Delray Beach is recognized as a center of recovery in some sources; however, the Police Department has made no connection between the recovery population and homeless people on the beach. The Police Department has and continues to enforce applicable city ordinances and Florida State Statutes as they relate to beach violations with the most recent arrest occurring on December 12th camping on the beach in the 200 block of South Ocean Boulevard. The Police Department records indicate that from August 6, 2011 – December 12, 2011 a total of 16 arrests have been made for camping on the beach. With respect to the reference to Commissioner Taylor’s comments about the facility the County is opening up as a homeless resource center in the near future off 22 12/13/11 45th Street in West Palm Beach, the City Manager stated that facility will only accept people if they are wanting to end their homelessness otherwise they will not accept them at that facility. The City Manager stated with respect to the parking problems on the swales near the intersection of Casuarina Road and Venetian Drive, the City has installed “No Parking” signs on the east side of Venetian Drive between Casuarina and Langer Way. He stated this area is unique in that there are multiple condos and apartments with back out parking. The City Manager stated Engineering will get with the Police Department to determine if additional “No Parking” signs are needed for safety reasons. Lastly, the City Manager stated the audio for the October 11, 2011 Workshop meeting is posted on the website and we will continue to place our Workshop audios on the website so that people can listen to them if they wish to do so. At this point, Mr. Frankel asked if any control or elimination of rehabilitation facilities is covered by the American Disability Act (ADA). The City Attorney stated people who are in recovery are covered by the ADA. Mr. Frankel stated under current case law any comments could be viewed discriminatory in nature in regards to that. The City Attorney stated under current case law if you take action against a particular group that is protected under the ADA then that would be discriminatory. 11.B. From the Public. 11.B.1. Cary Glickstein, 1118 Waterway Lane, Delray Beach, FL 33483 (current Chairman of the Planning and Zoning Board, Developer by Trade, a former Land Use lawyer, current trustee of the BPOA), stated he has lived in the beach area for the past 20 years and is distressed over what is happening in the neighborhoods under the guise of transient housing. Mr. Glickstein stated instead of Delray Beach being recognized for its wonderful assets our city is now known as the transient rehab capital of the southeast. He stated transient housing in the residential neighborhoods must be stopped. In his opinion, Mr. Glickstein stated transient housing belongs only where transient lodging is currently allowed not in single-family or multifamily zoned properties. Mr. Glickstein urged the Commission to ensure residential neighborhoods in general in the beach area specifically will not be used for transient housing. 11.B.2. Gary Eliopoulos, 314 N.W. 7th Street, Delray Beach, FL 33444, briefly spoke about Ordinance No. 20-09 and the definition of single-family. Mr. Eliopoulos suggested looking at the regulations again and asked if this Commission that worked so hard in 2009 failed with regards to what the spirit of the Code was which was a maximum of six times per house; however, the ordinance is being interpreted another way. Mr. Eliopoulos stated if outside lawyers have indicated that the City got it wrong then he would agree and urged this Commission to get outside counsel to look at this again and get it right. He stated this is in the RM zoning district and does not feel the residents have to tolerate this. 23 12/13/11 11.B.3. Mary Renault, 1017 Bucida Road, Delray Beach, FL 33483, speaking on behalf of the Beach Property Owners Association (BPOA), stated they are asking for support and strong action from the City in preserving their single-family neighborhoods. Ms. Renault stated for many years Delray Beach has drifted for a variety of reasons into being a group home and transient housing magnet for the entire nation. In July 2009, the City added a transient residential use section to the LDRs and feels this section does not go far enough in preserving the single-family neighborhoods. Ms. Renault stated its interpretation could be strained to allow up to six rental turnovers on each bed so with three residents allowed could have a transient use of up to 18 unrelated individuals per year but they believe the intent of this ordinance was for six short term leases not 18. She stated too many unrelated adults and excessive turnover rate destroy the stability and safety of the neighborhood. Ms. Renault urged the Commission to take another look at the regulations and act boldly to protect the neighborhoods. 11.B.4. Warren Roy, 329 Andrews Avenue, Delray Beach, FL 33483 (member of the BPOA and a CPA), stated these transactions are structured in not-for-profit organizations and when that happens the property comes off the tax rolls and the City and County loses revenue and also have additional drain on services such as fire and police. Mr. Roy stated this is not just a transient housing issue but it is also a financial issue which affects the City and the County. He urged the Commission to address this issue regarding the zoning. 11.B.5. 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), stated three unrelated individuals mean that if you have three brothers living in a unit that is considered one you then can have a family of four related (that is two); you can have a couple (that is three). Dr. Kirson stated you could have 12-14 in a unit with just three unrelated. Dr. Kirson stated the problem is the law and asked if we can by-pass a handicap law. 11.B.6. Brad Winney, 1515 N. Swinton Avenue, Delray Beach, FL 33444, stated he lived in San Francisco for ten years and has seen how bad this problem can get. Mr. Winney stated this is transient house next door to his and commented about the six cars coming in and out and the parking. Mr. Winney asked if the lowering of the appraised value of his house is not an effect of this. Also, Mr. Winney stated that he had the chance to visit the Starbucks on Federal Highway and this is a very serious issue. 11.B.7. Missy Corey, 1125 Waterway Lane, Delray Beach, FL 33483, stated this summer she had a hip replacement and was unable to fly north for vacation so she took the train. Ms. Corey stated the Amtrak has advertisements on it that tells you about every town you pass by. She stated in Delray Beach it does not say that we are an All-America City, etc. but it says that we are the “Drug Rehab Capital of the Southeast.” 11.B.8. Joann Peart, 107 N.W. 9th Street, Delray Beach, FL 33444, stated six times a year is too many to control because Code Enforcement has a skeleton crew because of the budget and nobody checks. Mrs. Peart stated unless the neighbors are 24 12/13/11 actually calling nobody knows how many people are there. She suggested that if it were 1-2 times a year it would be easier to follow and easier if the neighbors called to be able to check rather than Code Enforcement. Mrs. Peart stated the neighbors go by and have seen cars from North Carolina, Alabama, and New York one week and the next week there are cars from other states. 11.B.9. Joe Collard, 1004 Brooks Lane, Delray Beach, FL 33483, stated this is not a sober house but is a drug rehab house so people from all over the country come in with drug records and they are within 2,000 feet of a school. Mr. Collard commented about the ADA issue and stated after research he found that there was a lawsuit that was lost by the City of Boca. However, Mr. Collard stated it is not required that the City should allow a single-family house next to somebody who purchased a single-family house to be utilized as a for-profit. Mr. Collard stated somebody has decided to purchase a single-family house next to somebody with a family that has a single-family house and turn it into a business. He urged the Commission to protect the residents. 11.B.10. Joanne Shear, 701 North Ocean Boulevard, Delray Beach, FL 33483, stated she had a conversation with a prominent real estate broker in Delray Beach and recently purchased this home (third lot north of the public beach). Ms. Shear asked the realtor how they would appraise the value of her home if three or more of these facilities moved within walking distance of her home. Mayor McDuffie stated normally they do not respond the same night but this is a special circumstance. He stated normally all of the people who came and spoke would receive a written response from the City Manager. However, Mayor McDuffie stated he wanted everyone to know the hundreds of hours that everyone on this Commission as well as multiple Commissions several people ago spent on crafting three ordinances to try to address this issue. Mayor McDuffie stated they looked at zoning and commented about the City of Boca losing $2 million in a lawsuit where they tried to zone this type of use out of an area in the city. The City Attorney’s office, the City Manager’s office, and the City Commission took a look at what they could do to accomplish most of the things that most of the people have spoken about tonight. Mayor McDuffie stated at the time everyone believed they came up with something that was going to give them the opportunity to control unscrupulous operators. He stated in a crowd of this size someone present has been in somewhere for rehabilitation for some mental problem or substance abuse problem and there is a place for those and the people present do not want it to be their next door neighbor or the neighbor down the street. Mayor McDuffie stated if these people keep their property up like everyone else the impact to value is zero. In addition to crafting the ordinances, Mayor McDuffie stated he made trips to Washington, Tallahassee, and have talked to Federal and State Legislatures and the Federal people stated this is a State issue and not a Federal issue and they cannot seem to find anyone in the State who wishes to step up and regulate this type of use. Mayor McDuffie reassured everyone that the Commission will go back and review the ordinances, retain counsel, and will do everything to protect the residents, homes, and children as they did before when they thought they made a dent and came up with something that would curtail these uses. 25 12/13/11 Mr. Frankel stated Maria Herrera spoke to him about the enforcement issue and how nothing has been done and he questioned it then. Mr. Frankel stated now hearing more comments about vacation rentals and transient homes he is very concerned about Ordinance No. 29-09. Mr. Frankel stated reviewing the notes from June 2009 he and Mayor McDuffie did not have any kind of support for a lower number. Therefore, Mr. Frankel asked the City Attorney to bring this ordinance back to the City Commission either at the next meeting or whatever the immediate time period could be. Mr. Carney stated he listened to hours of that meeting regarding Ordinance No. 29-09 and how it was being interpreted as it related to transient housing and reviewed a number of cases provided by the City Attorney and others. Mr. Carney stated he thinks there is precedent to move the number to three times. He stated it is his understanding that staff has re-reviewed the minutes of that meeting and suggested that the ordinance be re-reviewed as well because the transient housing is an issue. Mr. Carney stated there is an important balance between the needs of those that need to be protected under the law and the others that need to be protected under the law which are the single-family owners of residences. Mr. Carney urged staff to go back and review the ordinances based on the case law that is now out there. Mr. Carney stated regarding the dwelling the turnover is six times not per bed. Mr. Carney stated this is a city-wide issue and is hopeful the City will take initiative soon. Dr. Alperin stated this is not a new issue and noted approximately 20 years ago former Police Chief Rick Lincoln and he created the Drug Task Force to deal with some of the issues. Dr. Alperin encouraged the public to contact the Commission and the City Attorney’s office with any ideas that might be useful. Mrs. Gray stated this is an issue all over the City and she is more than happy to revisit the ordinance. Mrs. Gray stated she was not part of the Commission at that time but believes the City needs to review and enforce the laws that we have put in place and she looks forward to working with everyone. Mayor McDuffie stated some residents emailed him and noted that some of them should have a response back if they have not seen it already. Mayor McDuffie stated he emailed back most of the people informing them that he does not believe the City will be able to handle this at a municipal level. Mayor McDuffie reiterated that he made trips to Tallahassee and Washington and in two separate years he spoke about pill mills and unscrupulous rehab centers. He stated they got some relief in the pills mills with pharmaceutical registration laws and other things so that the Sherriff’s Department has been able to make a good dent in the pill mills because they received Legislative support to do so. Mayor McDuffie stated the City of Delray Beach has received zero Legislative support to do anything with elicit rehabilitation centers. He stated he sent a list of the entire Legislative and Congressional Delegations that support us to everyone who emailed him. Mayor McDuffie suggested that everyone who spoke this evening email and call those Legislators and let them know the municipalities need assistance from the State in being able to come out with regulations from a State level. Mayor McDuffie stated there is no regulatory body that claims jurisdiction over this type of use. 26 12/13/11 McDuffie stated the City of Delray Beach will work diligently on behalf of the residents to do a better job on these three ordinances but the City needs help. Mayor McDuffie stated the City sent to the State Legislative Delegations all of the important legislative issues for this upcoming year and asked all the legislators to reply to the City on where they stood on each one of these issues. Mayor McDuffie stated State Representative Lori Berman was the only legislator who responded. He stated the City may spend some more tax money in doing this because there are broad issues with enforcement. He stated if the City does this with sworn officers it will be a tremendous burden on the sworn officers so they will have to add people to the Code Enforcement staff and that costs money. Mayor McDuffie stated the City will do what it takes given the restrictions they have from a revenue standpoint to make this right. At this point, the time being 9:20 p.m., the Commission moved to Item 12, First Readings. 12. FIRST READINGS: 12.A. ORDINANCE NO. 50-11: Consider an amendment to Chapter 34, “Elections”, by amending Section 34.16, “Filing of Nominating Petitions”, to modify the number of registered voters required to sign a petition to grant eligibility of a candidate to qualify to run for office. If passed, a public hearing will be held on January 3, 2012. The caption of Ordinance No. 50-11 is as follows: AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AMENDING CHAPTER 34, “ELECTIONS”, OF THE CODE OF ORDINANCES BY AMENDING SECTION 34.16, “FILING OF NOMINATING PETITIONS”, TO MODIFY THE NUMBER OF REGISTERED VOTERS REQUIRED TO SIGN A PETITION TO GRANT ELIGIBILITY OF A CANDIDATE TO QUALIFY TO RUN FOR OFFICE, PROVIDING A SAVING CLAUSE, A GENERAL REPEALER CLAUSE, AND AN EFFECTIVE DATE. (The official copy of Ordinance No. 50-11 is on file in the City Clerk’s office.) The City Attorney read the caption of ordinance and this was based on the comments at the Workshop meeting where the Commission wanted the amount of signatures to be modified from the 1% to a set number of 250. The City Attorney stated this ordinance also provides for is that this would be effective after the March 13, 2012 election. Dr. Alperin moved to approve Ordinance No. 50-11 on FIRST Reading with modification to be effective January 3, 2012, seconded by Mr. Frankel. Upon roll 27 12/13/11 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. 13. COMMENTS AND INQUIRIES ON NON-AGENDA ITEMS. 13.A. City Manager The City Manager had no comments or inquiries on non-agenda items. 13.B. City Attorney The City Attorney stated any ordinance staff does that modifies the LDRs will have to go in front of the Planning and Zoning Board. The next Planning and Zoning Board meeting is scheduled for January because the one for December was cancelled. Therefore, the City Attorney stated the ordinance will come before the City Commission the second meeting in January or the first meeting in February. The City Attorney stated this would give staff time as far as a change in the ordinance to seek consultation with outside counsel to make sure that staff drafts an ordinance that will hopefully withstand any challenges and will be constitutional as well. 13.C. City Commission 13.C.1. Dr. Alperin Dr. Alperin suggested that the Commission send Representative Lori Berman a thank you letter for responding and a copy of that letter sent to every other Legislator on the Delegation. 13.C.2. Mr. Carney Mr. Carney had no comments or inquiries on non-agenda items. 13.C.4. Mrs. Gray Mrs. Gray asked for a confirmation regarding the wastewater meeting Thursday, December 15, 2011. Mr. Carney will check to see when this meeting is. 13.C.4. Mr. Frankel Mr. Frankel stated on Saturday from 8:00 a.m.-10:30 a.m. and 10:30 a.m. -2:00 p.m. the Caring Kitchen Holiday food packing by the Sisters of Sunshine organization will be held. He announced if anyone is interested to contact the sistersofsunshine@gmail.com. 28 12/13/11 Secondly, Mr. Frankel stated the Menorah lighting will be held at 6:00 p.m. on Tuesday, December 20, 2011 at Old School Square. Mr. Frankel stated he was at the Downtown Development Authority (DDA) meeting yesterday and they have concerns about the parking study. He stated the Charrette has been postponed several times and he had concerns about emails about employee parking plans that he sent in October. Mr. Frankel stated the City has a Parking Management Specialist who he thought would come up with something and Mr. Hasko was answering the questions. Mr. Frankel expressed concern with what is going with the Parking Management Specialist position. Mayor McDuffie stated he was called and emailed and had a meeting with one of the Parking Management Advisory Board (PMAB) members and there is a lot of dissatisfaction. He stated there were a couple of other things recommended and one was an employee parking plan to park them on the top two floors of the Old School Square Parking Garage and get them off of Atlantic Avenue. The side street parking and meters downtown were discussed with one hour free and charged after that and multi-purpose meters. Mr. Frankel stated we have had this plan for a long time and nothing has been done. The City Manager stated many small things have been done and it was supposed to be phased out. Lastly, Mr. Frankel wished everyone a Happy New Year. 13.C.5. Mayor McDuffie Mayor McDuffie stated he was approached this evening about a Children’s Garden in Delray and suggested that they check with Cason United Methodist Church because they have their community garden. Secondly, Mayor McDuffie commented about the South Central Regional Wastewater Treatment and Disposal Board (SCRWTDB) about whether the Commission is going to be there on December 15th. Mayor McDuffie stated the Christmas parade was well attended. Mayor McDuffie stated there was so much focus on the New York Times article that calls Delray Beach “The Drug Capital of the World” and then articles come out like the one from the Boston Globe that talked about what a wonderful place this is. Mayor McDuffie stated if the Beach Property Owners’ Association (BPOA) puts in a place like Hanley Hazelden and maintains the grounds there is no real estate impact negatively to that whatsoever. Mr. Carney stated any group housing is all about the operator. Mayor McDuffie stated the City needs help with regulation out of Tallahassee. 29 12/13/11 Mayor McDuffie commented about the Chamber of Commerce. Lastly, Mayor McDuffie wished everyone a Merry Christmas, Happy Hanukkah, and a Happy New Year. There being no further business, Mayor McDuffie declared the meeting adjourned at 9:45 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 December 13, 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. City Commission Meeting on December 13, 2011; item 9.A. City Commission Meeting on December 13, 2011; item 9.A. City Commission Meeting on December 13, 2011; item 9.A. City Commission Meeting on December 13, 2011; item 9.A. City Commission Meeting on December 13, 2011; item 9.A. City Commission Meeting on December 13, 2011; item 9.A. City Commission Meeting on December 13, 2011; item 9.A. City Commission Meeting on December 13, 2011; item 9.A. City Commission Meeting on December 13, 2011; item 9.A. City Commission Meeting on December 13, 2011; item 9.A. City Commission Meeting on December 13, 2011; item 9.A. City Commission Meeting on December 13, 2011; item 9.A. City Commission Meeting on December 13, 2011; item 9.A. City Commission Meeting on December 13, 2011; item 9.A. City Commission Meeting on December 13, 2011; item 9.A. City Commission Meeting on December 13, 2011; Item 9.C. City Commission Meeting on December 13, 2011; Item 9.C. City Commission Meeting on December 13, 2011; Item 9.C. WHEREAS, Martin Luther King, Jr. was born on January 15, 1929, in Atlanta, Georgia, and dedicated his life to all Americans being able to enjoy the freedom guaranteed every citizen under the United States Constitution; and WHEREAS, January 16, 2012, will be observed as Martin Luther King, Jr. Day in honor of the memory and ideals of Dr. King; and WHEREAS, Martin Luther King, Jr. labored tirelessly to obtain equality of opportunity for all Americans; and WHEREAS, Dr. King was instrumental in the advancement of equality for all Americans; and WHEREAS, January 16th should serve as a reminder to each of us of the sacrifices made by some Americans in order to secure the rights of all Americans. NOW, THEREFORE, I, NELSON S. McDUFFIE, Mayor of the City of Delray Beach, Florida, on behalf of the City Commission do hereby proclaim January 16, 2012 as MARTIN LUTHER KING, JR. DAY in the City of Delray Beach, and urge all citizens to reflect upon the efforts and sacrifices made by Dr. King on behalf of all Americans and join in the celebration of his contributions to the struggle for peace and freedom for our nation and throughout the world. 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 3rd day of January, 2012. ___________________________ NELSON S. McDUFFIE MAYOR WHEREAS, the Charter and the Code of Ordinances of the City of Delray Beach, Florida, provides for the calling of a First Nonpartisan Election for the purpose of electing two (2) City Commissioners and the City Commission has by resolution authorized a Special Election; and WHEREAS, pursuant to said Charter and Code of Ordinances provisions the City Commission deems it necessary to call for the First Nonpartisan Election on the second Tuesday of March each year and a Special Election at this time. WHEREAS, a notice is hereby given calling for a special election on March 13, 2012, to vote on a referendum question set forth in Ordinance No. 44-11 regarding amending 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, which requires consent of the majority of the voters voting in the election. NOW, THEREFORE, I, NELSON S. MCDUFFIE, Mayor of the City of Delray Beach, Florida, on behalf of the City Commission, do hereby call for the First Nonpartisan Election and a Special Election to be held on Tuesday, March 13, 2012, between the hours of 7:00 a.m. and 7:00 p.m., at all the precincts and polling places in the City of Delray Beach as designated by the Supervisor of Elections. ALL QUALIFIED ELECTORS of the City of Delray Beach, Florida, shall be qualified to vote in such election. ______________________________ NELSON S. MCDUFFIE MAYOR MEMORANDUM TO: Mayor and City Commissioners FROM: David T. Harden, City Manager DATE: December 21, 2011 SUBJECT: AGENDA ITEM 7.A. -REGULAR COMMISSION MEETING OF JANUARY 3, 2012 GOVERNMENT FINANCE OFFICERS ASSOCIATION AWARD PRESENTATION ITEM BEFORE COMMISSION Government Finance Officers Association Award – Certificate of Achievement for Excellence in Financial Reporting MEMORANDUM TO: Mayor and City Commissioners FROM: Linda Karch, Director of Parks and Recreation THROUGH: David T. Harden, City Manager DATE: December 27, 2011 SUBJECT: AGENDA ITEM 7.B. -REGULAR COMMISSION MEETING OF JANUARY 3, 2012 TURKEY TROT 2011 RECOGNITION OF SPONSORS PRESENTATION ITEM BEFORE COMMISSION Parks and Recreation will be presenting awards to the sponsors who helped make the 25th Annual Turkey Trot 5K Run and Health Walk a success. BACKGROUND This award is being presented in recognition of the sponsors who donated their time and in-kind services to help make the 25th Annual Turkey Trot 5K Run and Health Walk a success. The following sponsors will be recognized: Grimes Events & Party Tents, Crossfit Delray Beach, Bob's Printing, and RoadID. This event takes place every year in November at Anchor Park and the proceeds from the Turkey Trot benefit the "Keith Straghn Feed the Hungry Thanksgiving Drive" for needy families of Delray Beach, Boynton Beach and Boca Raton. Intelligent Waste Collection System by BigBelly Solar The City of Delray Beach January 3, 2012 2 BigBelly Solar • BigBelly Solar is the sole manufacturer of this Intelligent Waste Collection System and their Solar Powered Compactors. • No other companies produce a solar powered compactor. It is a patented technology. • Waste Management is a distributor in the State of Florida. 3 Advantages of the System • Helps keep public spaces clean • Reduces operational cost • Tech Savvy – provides real-time status via web-based management console • Powered by the Sun • Made of Recycled Materials • Small, but with huge capacity 4 More Advantages • Reduces Carbon Footprint • Frees current staff – allows other duties • Creates a Branding Opportunity • City identified 180 possible sites • Increases City’s sustainable options • Helps Delray Beach become a Green City USA 5 Parks and Public Facilities Modern Problem Modern Solution6 The Avenue and Pineapple Grove Modern Problem Modern Solution7 Beach Litter and Birds Modern Problem Modern Solution8 Real-time Data & Analysis to Optimize Collections9 Software – Wireless Monitoring Ø Compaction with information, provides: • Significant capacity increase, 5x • Overflow elimination • Up to 80% collection reduction Ø Provides on-demand dashboard • Use data to optimize routes, collection frequency and staffing • Central visualization of “network” status • Serves as collections audit tool Commands Data Analysis Reports Insights Transparency Auditing Management Console Command Center System Architecture Support Remote Stations Components Software Service permeates the entire System, including: • The Management Console, driven by data stored and analyzed in the Command Center • The functions of the Stations, based on data analyzed and commands given by the Command Center • Software helpdesk support Settings Inventory Mgmt WASTE MANAGEMENT PROPOSAL to the City of Delray Beach 12 Option A • WM to provide BigBelly Solar Intelligent Waste & Recycling System consisting of: • 100 BigBelly Single Stations – 40 stations in 2012 – 40 stations in 2013 – 20 stations in 2014 • Web-based CLEAN Management Console • WM provides maintenance of stations 13 $600,000 Value to City • Reduces litter • Reduces operational cost for City • City designs the Wrap • Creates “Branding Opportunity” • Beautifies current unsightly containers • Adds to City’s Sustainability options14 Our Request WM request the City extend the current Franchise Agreement for five years with mutually agreed upon five-year options. The City will own the stations at the end of the initial five year term with the option to renew the software services provided by BigBelly Solar. 15 Option B • WM to provide BigBelly Solar Intelligent Waste & Recycling System consisting of: • 125 BigBelly Single stations – 50 stations in 2012 – 45 stations in 2013 – 30 stations in 2014 • Web-based CLEAN Management Console • WM provides maintenance of stations 16 $750,000 Value to City • Reduces litter • Reduces operational cost for City • City designs the Wrap • Creates “Branding Opportunity” • Beautifies current unsightly containers • Adds to City’s Sustainability options17 Our Request WM request the City extend the current Franchise Agreement for eight years with mutually agreed upon five-year options. The City will own the stations at the end of the initial five year term with the option to renew the software services provided by BigBelly Solar. 18 Option C • WM to provide BigBelly Solar Intelligent Waste & Recycling System consisting of: • 150 BigBelly Single stations – 75 stations in 2012 – 50 stations in 2013 – 25 stations in 2014 • Web-based CLEAN Management Console • WM provides maintenance of units19 $900,000 Value to City • Reduces litter • Reduces operational cost for City • City designs the Wrap • Creates “Branding Opportunity” • Beautifies current unsightly containers • Adds to City’s Sustainability options20 Our Request WM request the City extend the current Franchise Agreement for ten years with mutually agreed upon five-year options. The City will own the stations at the end of the initial five year term with the option to renew the software services provided by BigBelly Solar. 21 • WM is an excellent corporate citizen -we sponsor many Delray Beach community events and organizations. • Service to the community is excellent Added Value of the Waste Management Partnership • WM is highly cooperative with DB staff • We immediately correct operational errors Waste Management Values our Partnership with the City of Delray Beach 22 23 MEMORANDUM TO: Mayor and City Commissioners FROM: David T. Harden, City Manager DATE: December 28, 2011 SUBJECT: AGENDA ITEM 8.A. -REGULAR COMMISSION MEETING OF JANUARY 3, 2012 RESOLUTION NO. 01-12 ITEM BEFORE COMMISSION This is before the City Commission to approve Resolution No. 01-12 regarding the First Nonpartisan and Special Election to be held on March 13, 2012. BACKGROUND On November 15, 2011, Commission approved the Vote Processing Equipment Use and Elections Services Agreement with Ms. Susan Bucher, Palm Beach County Supervisor of Elections, for conducting municipal elections. Resolution No. 01-12 provides the process for conducting the municpal and special election (referendum) to be held on March 13, 2012. RECOMMENDATION Recommend approval of Resolution No. 01-12 regarding the March 13, 2012, First Non-Partisan and Special Election. RESOLUTION NO. 01-12 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, CALLING FOR A NONPARTISAN ELECTION AND A SPECIAL ELECTION TO BE HELD ON TUESDAY, MARCH 13, 2012; AND A SECOND NONPARTISAN ELECTION, IF NECESSARY, TUESDAY, MARCH 27, 2012; ALL ELECTIONS SHALL BE HELD WITHIN THE MUNICIPAL BOUNDARIES OF THE CITY BETWEEN THE HOURS OF 7:00 AM UNTIL 7:00 PM; THE NONPARTISAN ELECTION SHALL PROVIDE FOR THE ELECTION OF TWO CITY COMMISSIONERS AND THE SPECIAL ELECTION SHALL PROVIDE FOR A REFERENDUM ON THE CHARTER CHANGE PRESENTED IN ORDINANCE NO. 44-11; PROVIDING THE TIME, MANNER AND MEANS OF HOLDING SAID ELECTIONS, PROVIDING A SAVING CLAUSE AND AN EFFECTIVE DATE. WHEREAS, the Charter and the Code of Ordinances of the City of Delray Beach, provide for Nonpartisan Elections to be held on the second Tuesday in March of each year for the electorate to fill the vacant offices at such time; and WHEREAS, if two or more candidates tie for the highest number of votes from all electors casting ballots for that seat for Commissioner or Mayor, then these candidates shall be declared candidates for a second nonpartisan election to be held on Tuesday, March 27, 2012; and WHEREAS, in the year 2012, two (2) offices in the City of Delray Beach are necessary to be filled at the Nonpartisan Election; and WHEREAS, the City Commission directs that the Nonpartisan Election be held on Tuesday, March 13, 2012; and WHEREAS, the Charter and the Code of Ordinances of the City of Delray Beach, provide for Special Elections; WHEREAS, Ordinance No. 44-11 amends the City Charter by modifying the length of a term and the number of terms a Mayor or Commissioner may serve; and WHEREAS, the City of Delray Beach desires to call for a special election on the Charter amendment matter; and WHEREAS, the City Commission of the City of Delray Beach directs that the special election on the Charter change proposed in Ordinance No. 44-11 be held on Tuesday, March 13, 2012; and WHEREAS, the City Commission directs the City Clerk to take all steps necessary to hold a Nonpartisan Election and a Special Election, and if necessary, a Second Nonpartisan election, and to provide all notices required in accordance with Article V, “Elections” of the Charter of the City of Delray Beach, Chapter 34, “Elections”, and General Law. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AS FOLLOWS: 2 RES. NO. 01-12 Section 1. That the City Commission incorporates the “Whereas” clauses set forth above as if fully set forth herein. Section 2. That the City Commission authorizes the holding of a Special Election on the Charter change presented in Ordinance No. 44-11. Section 3. That the Nonpartisan Election and the Special Election shall be held and are hereby ordered to be held in the City of Delray Beach, Palm Beach County, Florida between the hours of 7:00 am and 7:00 pm on the 13th day of March, 2012 for the purpose of electing qualified candidates as provided by law to fill two Commission seats and to determine the outcome of the Charter change proposed in Ordinance No. 44-11. Section 4. The City Clerk is authorized to enter into agreements to establish polling locations for the March 13, 2012 Nonpartisan Election and Special Election; and the March 27, 2012 Second Nonpartisan Election, if necessary, and is further authorized to designate polling locations within the municipal boundaries in accordance with applicable laws and state guidelines. Section 5. The City Clerk is hereby authorized to assign sufficient poll workers to facilitate all the precincts within the municipal boundaries; schedule training for poll workers and to establish a pay scale applicable to the duties and responsibilities of the election staff. Section 6. The Palm Beach County Supervisor of Elections shall provide for use of the voting equipment and process absentee ballots for said elections and is hereby authorized to provide the necessary training to the poll workers as approved by the City Clerk. Section 7. Immediately after closing of the polls on the day of said elections, the clerks of each precinct shall present the returns thereof to the City Clerk at City Hall. The City Clerk of the City of Delray Beach shall deliver to the Palm Beach County Supervisor of Elections returns for official results to be processed. Section 8. That the City Commission hereby authorizes the City Clerk to provide all notices and to take all steps necessary to hold the Nonpartisan Election and Special Election as hereby provided. Section 9. That the City Commission shall convene not later than three (3) days after such election and shall canvass the returns and, in the absence of a declaration of a contest by any of the candidates in such election, shall declare the results of the election as shown by the returns made by the Supervisor of Elections. Section 10. That the City Clerk, no later than noon the second day thereafter, shall furnish a certificate of election to each person shown to be elected. Section 11. That this resolution shall become effective immediately upon passage. PASSED AND ADOPTED this _____ day of ________________, 2012. _____________________________________ M A Y O R ATTEST: _______________________________ City Clerk 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: December 28, 2011 SUBJECT: AGENDA ITEM 8.B. -REGULAR COMMISSION MEETING OF JANUARY 3, 2012 RIGHT-OF-WAY DEED AGREEMENT/DELRAY BEACH HOUSING AUTHORITY ITEM BEFORE COMMISSION Acceptance of a Right-of-Way Deed dedicating 50-feet of land for Auburn Avenue from the Delray Beach Housing Authority in association with the Village Square Redevelopment project. BACKGROUND The Village Square project will be located at 770 S.W. 12 Terrace and consist of a 15-acre site east of Auburn Avenue; north of S.W. 8th Street; and south of the Villages at Delray (formerly Auburn Trace). The portion of Auburn Avenue immediately west of the 15-acre site is currently being used as public right-of-way, however, it was never conveyed to the City of Delray Beach. As a requirement of the Conditional Use process for the Village Square project, this stretch of Auburn Avenue needs to be dedicated to the City. This dedication was going to be done as part of the Village Square platting process, but the City's Auburn Avenue Beautification project is currently underway and this stretch of roadway is planned to be improved within the next few months. Therefore, dedication is required prior to construction activities. RECOMMENDATION Staff recommends approval. MEMORANDUM TO: Mayor and City Commissioners FROM: Rafael Ballestero, Deputy Director of Construction Richard C. Hasko, P.E., Director of Environmental Services THROUGH: David T. Harden, City Manager DATE: December 15, 2011 SUBJECT: AGENDA ITEM 8.C. -REGULAR COMMISSION MEETING OF JANUARY 3, 2012 CHANGE ORDER NO. 4/FOSTER MARINE CONTRACTORS, INC. ITEM BEFORE COMMISSION This item is before the Commission to approve Change Order No. 4 in the amount of $10,646.40, to Foster Marine Contractors, Inc. for additional sod required due to sod quantity shortages; and a contract time extension of fourteen (14) days; for the SW 12 Ave./Auburn Ave/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. Change Order No. 4 is for a sod quantity shortage; additional sod is required as follows: 12,684 SF of Bahia Sod at $0.40/sf which equals $5,073.60 and 12,384 SF of St. Augustine Floratam Sod at $0.45/sf which equals $5,572.80, for a total sod shortage amount of $10,646.40. The additional sod is needed for the swale grading and rear parking areas; and additional disturbed areas that will require sod. CO #4 also includes a contract time extension of fourteen days (14) detailed as follows: four (4) days delay for stopping short of the installation of a catch basin due to an existing (abandoned) 4" water main to be removed, which the City could not confirm was abandoned; Foster Marine (FM) performed additional work and furnished materials to verify that the main was abandoned. FM absorbed the cost of the labor and materials. Three (3) days delay due to a request for grade clarification for the sidewalk grade along SW 14th Ave. The plans did not depict the actual elevation condition and staff instructed FM to excavate a test section for review to allow actual grades to be established. This decreased FM's productivity in grading for the sidewalk and swale in this area; plus and seven (7) days for the additional sod installation and watering. Attached please find Exhibit "A" to CO #4 and a Location Map. FUNDING SOURCE Funding is available from 334-3162-541-68.04 (General Construction Fund/Other Improvement/SW 12 Ave/Auburn/SW 14th Ave). RECOMMENDATION Staff recommends approval of Change Order No. 4 in the amount of $10,646.40 to Foster Marine Contractors, Inc. for sod quantity shortages; and a contract time extension of fourteen (14) days for the SW 12 Ave./Auburn Ave/SW 14 Ave Project. MEMORANDUM TO: Mayor and City Commissioners FROM: Richard C. Hasko, P.E., Environmental Services Director THROUGH: David T. Harden, City Manager DATE: December 27, 2011 SUBJECT: AGENDA ITEM 8.D. -REGULAR COMMISSION MEETING OF JANUARY 3, 2012 SERVICE AUTHORIZATION NO. 06-12/CURRIE SOWARDS AGUILA ARCHITECTS ITEM BEFORE COMMISSION Staff requests Commission approval of Service Authorization #06-12 for Currie Sowards Aguila Architects for consulting services required in conjunction with a storm hardening project for Fire/Rescue Headquarters (FS #1) in the amount of $44,300.00. BACKGROUND The City has acquired grant funding through the Disaster Recovery Initiative (DRI) of the Community Development Block Grant (CDBG) program in the amount of $580,000 to provide storm damage mitigation for Fire Station #1 located at the northwest corner of West Atlantic Avenue and NW 5th Avenue. The Fire/Rescue Headquarters building was constructed in 1992 in compliance with building codes in effect at that time. Since completion of that building, code requirements have become much more stringent relative to the ability of buildings and building components to withstand hurricane force winds. This is an especially critical consideration for FS #1 since it houses the Emergency Operations Center (EOC) which is the focal point for disaster response for the City. While the building was originally designed with motorized roll down shutters, they have proven to be maintenance intensive in this particular installation and have been identified as the source of chronic water intrusion problems. In addition, the almost twenty year old sections of flat roofing have required attention due to water intrusion. Finally, the auxiliary generator installed with the original construction project is inadequate to provide power for the entire facility electric load. The scope of the proposed hardening project includes removal of existing shutters and replacement of fifty-three (53) windows with impact resistant windows as well as replacement of ten (10) perimeter doors with materials compliant with current codes; removal and replacement of the flat sections of roofing and replacement of the existing auxiliary generator with a new more efficient unit with adequate capacity to provide emergency power to the entire facility. The project has a grant driven deadline of October 21, 2012. The scope for the consultant service authorization provides all required services from preparation of construction documents to construction administration and final project close-out. The contract amount of $44,300 represents approximately 7.6% of the project construction budget, and compares favorably with consultant fees for similar projects. FUNDING SOURCE Funding for this agreement is available in account # 334-6112-519-62.10, Renewal & Replacement, Buildings, after budget transfer. RECOMMENDATION Staff recommends approval of Service Authorization #06-12 for Currie Sowards Aguila Architects. CURRIE SOWARDS AGUILA ARCHITECTS CONSULTING SERVICE AUTHORIZATION DATE: Dec. 22, 2011 SERVICE AUTHORIZATION NO. 06-12 FOR CONSULTING SERVICES CITY P.O #: CITY PROJECT # 2012-063 CITY EXPENSE CODE: TITLE: Fire Station 1 – Limited Storm Hardening Project CSA PROJECT # 111204 This Service Authorization, when executed, shall be incorporated in and shall become an integral part of the Agreement between the City of Delray Beach and Currie Sowards Aguila Architects dated October 17, 2006. I PROJECT DESCRIPTION The project generally consists of the following three principal tasks. Task 1 – Provides for the review and analysis of all existing exterior doors and windows and preparation of required drawings and specifications for the bidding, permit, and construction (replacement) of all exterior doors and windows with code compliant impact rated systems. Additionally, any required perimeter interior and exterior opening restoration details will be provided as well as other noted conditions that are determined to prevent moisture intrusion into the building envelope. Services include preparation of permit documents through construction administration services. Task 2 – Provides for the preparation of bidding, permit, and construction documents for the replacement of the two flat-roof areas of the building (over the apparatus bay and the second floor area) to a new three or four ply roofing system and any associated flashing and trim necessary. Services include preparation of permit documents through construction administration services. Task 3 – Provides for the review and analysis of existing electrical systems and historic demands to select and specify a new upgraded natural gas generator. Once the appropriate unit is selected, the existing generator enclosure will be analyzed to determine whether modifications are appropriate for sizing, or whether a new separate structure will be required. Either way, services include all required analysis, preparation of bidding, permit, and construction documents needed to implement the new system. Services include preparation of permit documents through construction administration services. II SCOPE OF SERVICES See Project Description above. III BUDGET Task 1 – Fees are proposed as a lump-sum fee of $27,800.00 Task 2 – Fees are proposed as a lump-sum fee of $ 5,000.00 Task 3 – Fees are proposed as a lump-sum fee of $11,500.00 Total all Fees $44,300.00 Direct Reimbursable Expenses are in addition to fees noted above and are not anticipated to exceed $500.00 without approval. IV COMPLETION DATE Tasks included in this Service Authorization will be completed ninety (90) days from authorization to proceed. Approval of this proposal by City Commission will constitute the City’s authorization to proceed. This Service Authorization is approved contingent upon the City’s acceptance of and satisfaction with the completion of services rendered in the previous phase or as encompassed by the previous Service Authorization. If the City in its sole discretion is unsatisfied with the service provided in the previous phase or Service Authorization, the City may terminate the Contract without incurring any further liability. The CONSULTANT may not commence work on any Service Authorization approved by the City to be included as part of the Contract without a further notice to proceed. Approved by: CITY OF DELRAY BEACH CURRIE SOWARDS AGUILA ARCHITECTS Date: Date: Nelson S. McDuffie, Mayor José N. Aguila, AIA, LEED AP, Principal (Seal) Attest: Witness: Witness: STATE OF FLORIDA COUNTY OF PALM BEACH The following instrument was acknowledged Before me this 22 Day of December, 2011, by José N. Aguila, of Currie Sowards Aguila Architects, Inc., a Florida Corporation dba Currie Sowards Aguila Architects, He is personally known to me and did not take an oath. Notary Public My Commission Expires: SEAL Fire Station #1 Storm Hardening Consultant Contract Award Project Design Project Bidding Award Construction Contract Project Construction Note: Schedule assumes expeditious turn around time for County and State review activities July-12 August-12 September-12 October-12 November-12 June-12 January-12 February-12 March-12 April-12 May-12 Google Maps http://maps.google.com/maps?hl=en&tab=wl[12/27/2011 10:55:19 AM] Get directions My places Traffic EMaartph Web Images Videos Maps News Shopping Gmail More Sign in Google Maps http://maps.google.com/maps?hl=en&tab=wl[12/27/2011 10:55:19 AM] Imagery ©2011 GeoEye, Map data ©2011 Google -100 ft 20 m Edit in Google Map Maker Report a problem MEMORANDUM TO: Mayor and City Commissioners FROM: Randal L. Krejcarek, P.E., LEED AP, GISP, City Engineer Richard C. Hasko, PE, Environmental Services Director THROUGH: David T. Harden, City Manager DATE: December 20, 2011 SUBJECT: AGENDA ITEM 8.E. -REGULAR COMMISSION MEETING OF JANUARY 3, 2012 RFQ AGREEMENT FOR ENGINEERING SERVICES/WANTMAN GROUP, INC./MATHEWS CONSULTING, INC. ITEM BEFORE COMMISSION This item is before the Commission for approval/authorization for Mayor to sign Engineering Consulting Services Agreements with Wantman Group, Inc. and Mathews Consulting, Inc. Project #12-057. BACKGROUND On 02 Oct 2011 Request for Qualifications were solicited from engineering firms for capital improvement projects contained in the City’s Capital Improvement Program (CIP). Thirty-four firms responded and were reviewed by the selection committee. On 13 Dec 2011 City Commission gave staff approval to negotiate continuing contracts with Mathews Consulting, Kimley-Horn & Associates and Calvin, Giordano & Associates, Corzo Castella Carballo Thompson Salman, Wantman Group and Craig A. Smith. Attached are partially executed agreements from Wantman Group, Inc. and Mathews Consulting, Inc. RECOMMENDATION Staff recommends approval. MEMORANDUM TO: Mayor and City Commissioners FROM: Lula Butler, Director, Community Improvement THROUGH: David Harden, City Manager DATE: December 20, 2011 SUBJECT: AGENDA ITEM 8.F. -REGULAR COMMISSION MEETING OF JANUARY 3, 2012 HOUSING REHABILITATION GRANT/CONTRACT AWARD ITEM BEFORE COMMISSION Approval is requested for one (1) Housing Rehabilitation grant to be awarded to the lowest responsive bidder in the amount of $24,011.77. Funding for the project is through the CDBG and RCMP Housing Rehabilitation grant. BACKGROUND Approval is requested for one (1) Housing Rehabilitation grant to be awarded to the lowest responsive bidder, Citywide Construction Services, Inc., for the following project: n 218 SW 13TH Avenue./$21,453.65=Total Rehab cost: $24,011.77 Grant awards are based on the actual cost of the rehabilitation, as determined by the low responsive bidder(s), plus a 5% contingency. Total rehab cost also includes lead inspection, lead abatement, lead clearance, termite inspection, termite treatment, and recording fees. Additional cost may be incurred for lead clearance test(s). The contingency may be used for change orders and all unused funds will remain with the CDBG and RCMP Housing Rehabilitation program. Inspection of work is done by the Department of Community Improvement’s Building Inspection and Neighborhood Services Divisions. Contracts are executed between the building contractor and the property owner. The City remains the agent and this office monitors all work performed by the contractor, ensuring compliance according to specifications and program guidelines. Pay request forms require both contractor and homeowner’s signatures. Grant recipients have met all eligibility requirements as specified in the approved Policies and Procedures. The rehabilitation activities will bring the homes to minimum code requirements by repairing the roof, electric and plumbing systems and correcting other incipient code violations. Detailed work write-ups and individual case files are available for review in the Neighborhood Services Division Office. The Neighborhood Services Division is responsible for ensuring that the housing rehabilitation contracts are awarded to the lowest responsive bidder, as a result of a formal bid process. Therefore, an in-house policy was created to limit awards to the lowest responsive bidder as it relates to the Division’s professional in-house estimate. This serves to disqualify unreasonably low bids and therefore, protect against the resulting change order requests. FUNDING SOURCE Community Development Block Grant 118-1963-554-49.19 $ 19,542.77 Residential Construction Mitigation Program 118-1936-554-49.19 $ 4,469.00 RECOMMENDATION Staff recommends awarding one (1) Housing Rehabilitation grant to the lowest responsive bidder in the amount of $24,011.77. BID/QUOTE #: 03-2012NS APPLICANT: Bernice Ivy PROJECT ADDRESS: 218 SW 13th Avenue DATE OF BID LETTERS: October 11, 2011 DATE OF BID OPENING: November 7, 2011 GENERAL CONTRACTORS BID AMOUNT BID BOND Abisset Corporation All Phase Roofing $ 2 8,125.00 Yes All-Site Construction, Inc. ARZ Builders, Inc. Built Solid Construction, LLC Citywide Construction Services, Inc. $ 2 1,453.00 Yes CJ Contracting, LLC $ 2 4,234.00 Cordoba Construction Co. $ 2 1,530.00 Yes Jemstone Construction Group, Inc. JIJ Construction Corp. KM Construction Inc. MacDonald Construction Company of Palm Beach $ 2 2,715.00 Yes Raymond Graeve & Sons Construction, Inc. Statement of no bid South Florida Construction Services, Inc. $ 2 2,530.00 Yes Sunband Builders Construction Inc. In-House Estimate: $ 2 3,669.00 RECOMMENDED CONTRACTOR: Citywide Construction Services, Inc. BID/CONTRACT AMOUNT : $ 21,453.00 5% Contingency $ 1,072.65 $ 22,525.65 Lead Inspection 450.00 Lead Clearance N/A Termite Inspection N/A Termite Treatment 997.92 Recording Fees 38.20 GRANT CONTRACT AMOUNT 24,011.77 FUNDING SOURCE: Community Development Block Grant (CDBG) Account # 118-1963-554-49.19 $19,542.77 118-1936-554-49.19 $4,469.00 COMMENTS: Staff recommends awarding housing rehabilitation project to be awarded to the lowest responsive bidder. CITY OF DELRAY BEACH NEIGHBORHOOD SERVICES DIVISION HOUSING REHABILITATION PROGRAM BID INFORMATION SHEET Residential Construction Mitigation Program (RCMP) BID /QUOTE NUMBER: 03-2012NS OWNER: ADDRESS: 218 SW 13th Avenue BID ADVERTISEMENT DATE: October 11, 2011 BID OPENING DATE: November 7, 2011 Bernice Ivy In-HouseAll Phase Roofing CJ Contracting, LLC. Citywide Construction Services, Inc. Cordoba Construction Company, Inc. MacDonald Construction Co of Palm Beach Raymond Graeve & Sons Construction, Inc. South Florida Construction Services, Inc. 1 Hurricane Shutters $ 3,304.00 $ 5,145.00 $ 5,700.00 $ 3,363.00 $ 3,300.00 $ 3,600.00 $ 3,550.00 2 Install Exterior Door $ 1,450.00 $ 1,400.00 $ 1,300.00 $ 875.00 $ 1,100.00 $ 1,300.00 $ 1,360.00 3 Repair Window $ 1,120.00 $ 1,390.00 $ 600.00 $ 575.00 $ 950.00 $ 150.00 $ 480.00 4 Install Base Trim $ 612.75 $ 885.00 $ 690.00 $ 675.00 $ 570.00 $ 855.00 $ 575.00 5 Install Bi-Pass Doors $ 450.00 $ 400.00 $ 295.00 $ 380.00 $ 340.00 $ 400.00 $ 370.00 6 Install Cabinets and Counter Top $ 5,400.00 $ 5,400.00 $ 3,100.00 $ 2,950.00 $ 4,200.00 $ 4,100.00 $ 5,120.00 7 Install Carpet $ 1,944.00 $ 2,430.00 $ 1,500.00 $ 2,010.00 $ 1,200.00 $ 1,800.00 $ 1,810.00 8 Install Interior Door $ 800.00 $ 200.00 $ 600.00 $ 900.00 $ 800.00 $ 1,000.00 $ 900.00 9 Install Vinyl Tile $ 562.50 $ 810.00 $ 600.00 $ 615.00 $ 700.00 $ 700.00 $ 525.00 10 Paint Room Complete $ 1,674.50 $ 1,900.00 $ 1,350.00 $ 1,050.00 $ 2,000.00 $ 2,200.00 $ 1,575.00 11 Repair Drywall/Remove Tile $ 1,211.25 $ 2,160.00 $ 899.00 $ 900.00 $ 700.00 $ 500.00 $ 590.00 12 Install Kitchen Sink $ 375.00 $ 400.00 $ 200.00 $ 500.00 $ 420.00 $ 300.00 Additional Handout given by Jane Stanley; Item 11.B. 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B . $ 370.00 13 Install Tub Shower with Grab bars $ 1,800.00 $ 2,500.00 $ 3,000.00 $ 2,645.00 $ 1,900.00 $ 2,050.00 $ 2,210.00 14 Install Vanity with Sink $ 525.00 $ 745.00 $ 650.00 $ 830.00 $ 500.00 $ 1,200.00 $ 705.00 15 Repair Toilet $ 150.00 $ 300.00 $ 100.00 $ 150.00 $ 160.00 $ 250.00 $ 235.00 16 Repair Water Heater $ 175.00 $ 100.00 $ 150.00 $ 250.00 $ 500.00 $ 75.00 $ 180.00 17 Install Exterior Light Fixture $ 230.00 $ 260.00 $ 120.00 $ 300.00 $ 330.00 $ 200.00 $ 150.00 18 Install interior Light Fixture $ 255.00 $ 390.00 $ 180.00 $ 300.00 $ 250.00 $ 300.00 $ 180.00 19 Repair Electrical Service $ 1,150.00 $ 650.00 $ 1,900.00 $ 1,500.00 $ 1,250.00 $ 985.00 $ 1,070.00 20 Smoke Detectors with Arc Fault $ 480.00 $ 660.00 $ 1,300.00 $ 685.00 $ 360.00 $ 750.00 $ 575.00 21 22 23 24 TOTAL $ 23,669.00 $ 28,125.00 $ 24,234.00 $ 21,453.00 $ 21,530.00 $ 22,715.00 $ -$ 22,530.00 Statement of no bid MEMORANDUM TO: Mayor and City Commissioners FROM: Lula Butler, Director, Community Improvement THROUGH: David Harden, City Manager DATE: December 20, 2011 SUBJECT: AGENDA ITEM 8.G. -REGULAR COMMISSION MEETING OF JANUARY 3, 2012 CDBG SUB-RECIPIENT FUNDING AGREEMENT/ACHIEVEMENT CENTERS FOR CHILDREN AND FAMILIES) ITEM BEFORE COMMISSION Approval is requested to execute an agreement for funding with the above-listed sub-recipient under the 2011-2012 Community Development Block Grant (CDBG) Program. BACKGROUND In accordance with 24 CFR 570.301, a Public Hearing was held before the City Commission on August 2, 2011, to obtain public comment on the proposed budget for the approval of the Community Development Block Grant Consolidated Action Plan for fiscal year 2011-2012. The Action Plan contains an appropriation for public service activity and was approved by the Commission. CDBG Program regulations at 24 CFR 570.503 require written agreements prior to the disbursement of funds to sub-recipient organizations, specifying the work to be performed and reporting requirements, among other requirements and governing provisions. These agreements have been developed in accordance with the stated regulations and have been reviewed and approved by the City Attorney for legal sufficiency and form. FUNDING SOURCE Community Development Block Grant 118-1966-554-82.09 RECOMMENDATION Staff recommends approval and execution of the agreements in order that funding may proceed in accordance with the Commission approved Action Plan for fiscal year 2011-2012. 1 FY 2011-2012 COMMUNITY DEVELOPMENT BLOCK GRANT AGREEMENT between CITY OF DELRAY BEACH and ACHIEVEMENT CENTERS FOR CHILDREN AND FAMILIES . THIS AGREEMENT is entered into between the CITY OF DELRAY BEACH, a Florida municipal corporation, hereinafter referred to as “CITY,” and “ACHIEVEMENT CENTERS FOR CHILDREN AND FAMILIES”, hereinafter referred to as “the SUBRECIPIENT,” having its principal office at 555 N.W. 4th Street, Delray Beach, Florida 33444-2734. W I T N E S S E T H: WHEREAS, the CITY has entered into an Agreement with the U.S. Department of Housing and Urban Development (HUD) for a grant for the execution and implementation of a Community Development Block Grant (CDBG) Program in the CITY, pursuant to Title I of the Housing and Community Development Act of 1974 (as amended); and WHEREAS, the CITY desires to engage the SUBRECIPIENT to implement an activity of the Delray Beach CDBG Program; NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the parties hereto agree as follows: ARTICLE I DEFINITION AND PURPOSE 1. Definitions 1.1 “CDBG” means Community Development Block Grant program. 1.2 “HUD” means the U.S. Department of Housing and Urban Development. 1.3 “24 CFR” refers to the Section of the Code of Federal Regulations pertaining to the U.S. Dept. of HUD. 1.4 “Program Income” means gross income received directly generated or earned from the use of CDBG funds. Program Income includes, but is not limited to, interest earned on advances of federal funds or royalties received as a result of patents or copyrights produced under this grant. 1.5 “OMB” means Office of Management and Budget. 1.6 “Low-and Moderate-Income” means a household whose income is within specified income limits set forth by HUD. 1.7 Property: a. “Real Property” means land, land improvements, structures, fixtures and appurtenances thereto, excluding movable machinery and equipment. b. “Personal Property” means personal property of any kind except real property. 2 c. “Nonexpendable Personal Property” means tangible (i.e., physical) personal property of a nonconsumable nature, with a value of $500 or more per item, with a normal expected life of one or more years, not fixed in place, and not an integral part of a structure, facility or another piece of equipment. d. “Expendable Personal Property” means all tangible personal property other than nonexpendable property. 2. Purpose The purpose of this Agreement is to state the covenants and conditions under which the SUBRECIPIENT will implement the Statement of Work set forth in Article II of this agreement. ARTICLE II STATEMENT OF WORK The SUBRECIPIENT shall carry out the activities specified in Attachment A, “Scope of Services.” ARTICLE III FUNDING AND METHOD OF PAYMENT 3.1 The maximum amount payable by the CITY under this Agreement will be Seventy Two Thousand Five Hundred Forty Dollars and 00/100 ($72,540.00). 3.2 The CITY will be billed by the SUBRECIPIENT and will disburse twelve (12) monthly payments in the amount of Six Thousand Forty Five Dollars ($6,045.00) Bills shall be submitted by the SUBRECIPIENT at least two weeks in advance. 3.3 Prior to receipt of CDBG funds (through reimbursement), SUBRECIPIENT shall submit the following documentation no later than the 10th day of each month covered by this Agreement, in a format prescribed by the CITY: a. Monthly grantee performance report as well as a narrative identifying the participant’s levels of family income, race, ethnicity, and achievements of participants served by the program. b. Monthly timesheets and payroll reports reflecting actual time worked by the CDBG funded position and a completed Direct Benefit Activity form (monthly); c. Monthly Project Budget, detailing requested funds, included in this agreement as “Attachment D.” 3.4 Release of funds is subject to the approval of the Director of Community Improvement. ARTICLE IV TERM OF AGREEMENT The term of this Agreement shall be from October 1, 2011, to September 30, 2012. 3 ARTICLE V SUSPENSION AND TERMINATION 5.1 Termination/Suspension of Payments/Agreement for Cause: If through any cause either party shall fail to fulfill in 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 or suspend payments in whole or in part by giving written notice of such termination or suspension of payments and specify the effective date of termination or suspension. If payments are withheld, the CITY shall specify in writing the actions that must be taken by the SUBRECIPIENT as a condition precedent to resumption of payments and shall specify a reasonable date for compliance. Sufficient cause for suspension of payments shall include, but not be limited to: a. ineffective or improper use of CDBG funds, b. failure to comply with the Statement of Work or terms of this Agreement, c. failure to submit reports as required, d. submittal of materially incorrect or incomplete reports, e. failure to comply with any additional conditions that may be imposed by HUD. 5.2 Termination for Convenience of City: The CITY may terminate this Agreement without cause at any time by giving at least ten (10) working days notice in writing to the SUBRECIPIENT. If this Agreement is terminated by the CITY as provided herein, the SUBRECIPIENT will be paid for allowable services performed under Article II of this Agreement until the effective date of the termination. 5.3 Termination for Convenience of the SUBRECIPIENT: At any time during the term of this Agreement, the SUBRECIPIENT may, at its option and for any reason, terminate this Agreement upon ten (10) working days written notice to the CITY. Upon termination, the SUBRECIPIENT shall be paid for services rendered pursuant to this Agreement through and including the date of termination. ARTICLE VI RECORDS AND REPORTS 6.1 The SUBRECIPIENT agrees to retain supporting documentation relating to activities funded by this Agreement for a period of five years after the termination of the Agreement. 6.2 The SUBRECIPIENT shall submit quarterly reports in a format prescribed by the CITY per the schedule in Article III of this Agreement. 6.3 The SUBRECIPIENT agrees to submit upon request other documentation which may later be determined necessary to assure compliance with this Agreement. 4 ARTICLE VII PROGRAM INCOME The SUBRECIPIENT agrees to expend CDBG funds for the purpose outlined in Article I of this Agreement. It is not anticipated that program income shall be generated from this allocation. However, such income, if generated, may be retained by the SUBRECIPIENT and used for costs that are in addition to the approved costs of this agreement, provided that such costs specifically further the objectives of this agreement. Under no circumstances shall the SUBRECIPIENT use program income to pay for charges or expenses that are specifically not allowed pursuant to the terms of this agreement and applicable federal regulations or rules. The use of program income by the SUBRECIPIENT shall comply with the requirements set forth at 24 CFR 570.504. ARTICLE VIII PUBLICITY The SUBRECIPIENT shall ensure that all publicity, public relations, advertisements and signs, recognize the CITY and the CDBG Program for the support of all contracted activities. The use of the official CITY logo is permissible, but all signs used to publicize CITY contracted activities must be approved by the CITY prior to being posted. ARTICLE IX GENERAL CONDITIONS 9.1 Federal, State, County and CITY Laws and Regulations: The SUBRECIPIENT shall comply with applicable provisions of applicable federal, state, County, and CITY laws, regulations and rules, including OMB A-122, OMB A-21, OMB A-133. The SUBRECIPIENT shall comply with Section 504 of the Rehabilitation Act of 1973, as amended, which prohibits discrimination on the basis of handicap; Title VI of the Civil Rights Act of 1964, as amended, which prohibits discrimination on the basis of race, color, or national origin; the Age Discrimination Act of 1975, as amended, which prohibits discrimination on the basis of age; Title VIII of the Civil Rights Act of 1968, as amended, and Executive Order 11063 which prohibits discrimination in housing on the basis of race, color, religion, sex, or national origin; Executive Order 11246, as amended which requires equal employment opportunity; and with the Energy Policy, amended and Conservation Act (Pub.L 94-163) which requires mandatory standards and policies relating to energy efficiency. The SUBRECIPIENT shall report its compliance with Section 504 of the Rehabilitation Act whenever so requested by the CITY. The SUBRECIPIENT shall comply with all applicable requirements of the Americans with Disabilities Act (ADA) of 1990, including, but not limited to, those provisions pertaining to employment, program services, transportation, communications, access to facilities, renovations, and new construction. The SUBRECIPIENT shall comply with all federal laws and regulations pertaining to environmental standards described in 24 CFR Subpart K, except that: a. The SUBRECIPIENT does not assume the CITY’s environmental responsibilities described at 570.604, and b. The SUBRECIPIENT does not assume the CITY’s responsibility for initiating the review process under the provisions of 24 CFR part 52. 5 9.2 Opportunities for Residents and Civil Rights Compliance: The SUBRECIPIENT agrees that no person shall on the grounds of race, color, national origin, religion, or sex be excluded from the benefits of, or be subjected to, discrimination under any activity carried out by the performance of this Agreement. To the greatest feasible extent, lower-income residents of the project areas shall be given opportunities for training and employment; and to the greatest feasible extent, eligible business concerns located in or owned in substantial part by persons residing in the project areas shall be awarded contracts in connection with the project. 9.3 Evaluation and Monitoring: The SUBRECIPIENT agrees that the CITY will carry out periodic monitoring and evaluation activities as determined necessary and that the continuation and/or renewal of this Agreement is dependent upon satisfactory evaluation conclusions. Such evaluations will be based on the terms of this Agreement, comparisons of planned versus actual progress relating to activity scheduling, budgets, audit reports, and output measures. The SUBRECIPIENT agrees to furnish upon request to the CITY and make copies of transcriptions of such records and information as is determined necessary by the CITY. The SUBRECIPIENT shall submit on a schedule set by the CITY and at other times upon request, information and status reports required by the CITY to enable the evaluation of said progress and to allow for completion of reports required of the CITY by HUD. The SUBRECIPIENT shall allow the CITY or HUD to monitor its agency on site. Such site visits may be scheduled or unscheduled as determined by the CITY or HUD. 9.4 Audits: Nonprofit organizations that expend $500,000 or more annually in federal awards shall have a single or program specific audit conducted accordance with OMB A-133. Nonprofit organizations that expend less than $500,000 annually in federal awards shall be exempt from an audit conducted in accordance with OMB A-133, although their records must be available for review. These agencies are required by the CITY to submit “reduced scope” audits (e.g., financial audits, performance audits). Each audit shall cover a time period of not more than 12 months and an audit shall be submitted covering each assisted period until all the assistance received from this agreement has been reported on. A copy of the audit report must be received by the CITY no later than six months following each audit period. The SUBRECIPIENT shall maintain all records in accordance with generally accepted accounting principles, procedures, and practices which shall sufficiently and properly reflect all revenues and expenditures of funds provided directly or indirectly by the CITY pursuant to the terms of this agreement. 9.5 Uniform Administrative Requirements: The SUBRECIPIENT agrees to maintain books, records and documents in accordance with accounting procedures and practices which sufficiently and properly reflect all expenditures of funds provided by the CITY under this Agreement. The SUBRECIPIENT is required to comply with the following uniform administrative requirements: a. Specific provisions of the uniform administrative requirements of OMB Circular A-110, as implemented at 24 CFR Part 84, “Uniform Administrative Requirements for Grants and Agreements with Institutions of Higher Education, Hospitals and Other Non-Profit Organizations.” b. OMB Circular A-122 “Cost Principles for Non-Profit Organizations” (a list of allowable and unallowable costs appears in Attachment B). c. Applicable provisions of 24 CFR 570.502. 6 9.6 Lobbying Prohibition: The SUBRECIPIENT shall certify that no federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any federal Agreement, the making of any federal grant, the making of any federal loan, the entering into of any cooperative Agreement, and the extension, continuation, renewal, amendment, or modification of any federal Agreement, grant, loan, or cooperative Agreement. The SUBRECIPIENT shall disclose to the CITY if any funds other than federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this federal Agreement. 9.7 Section 3 Requirements: The SUBRECIPIENT agrees to comply with all Section 3 requirements applicable to contracts funded through this Agreement. Information on Section 3 is available from the CITY upon request. The SUBRECIPIENT 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 a. The work to be performed under this agreement is subject to the requirements of Section 3 of the Housing and Urban Development Act of 1968, as amended, 12 U.S.C. 1701 (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. b. The parties to this agreement agree to comply with HUD’s requirements in 24 CFR Part 135, which implement Section 3. As evidenced by their execution of this agreement, the parties to this agreement certify that they are under no contractual or other impediment that would prevent them from complying with the Part 135 regulations. c. The SUBRECIPIENT agrees to send to each labor organization or representative of workers with which the SUBRECIPIENT has a collective bargaining Agreement or other understanding, if any, a notice advising the labor organization or workers representative of the SUBRECIPIENT’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. d. The SUBRECIPIENT agrees to include this Section 3 clause in every subcontract subject to compliance with regulations in 24 CFR Part 135, and agrees to take 7 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 SUBRECIPIENT will not subcontract with any subcontractor where the SUBRECIPIENT has notice or knowledge that the subcontractor has been found in violation of the regulations in 24 CFR Part 135. e. The SUBRECIPIENT will certify that any vacant employment positions, including training positions, that are filled (1) after the SUBRECIPIENT is selected but before the contract is 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 SUBRECIPIENT’s obligations under 24 CFR Part 135. f. 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. 9.8 Insurance: The SUBRECIPIENT shall furnish to the CITY, c/o the Community Improvement Department, certificate(s) of insurance evidencing coverage that meets the requirements outlined in Attachment C. 9.9 Property: Any real property under the SUBRECIPIENT’s control that was acquired or improved in whole or in part with CDBG funds received from the CITY in excess of $25,000 shall be either: a. Used to meet one of the three CDBG national objectives required by and defined in 24 CFR Part 570.208 for five years following the expiration or termination of this agreement, or for such longer period of time as determined by the CITY; or b. Not used to meet a CDBG national objective, in which case the SUBRECIPIENT shall pay to the CITY an amount equal to the market value of the property as may be determined by the CITY, less any proportionate portion of the value attributable to expenditures of non-CDBG funds for acquisition of, or improvement to, the property. Reimbursement is not required after the period of time specified in Paragraph 9.9.a., above. Any real property under the SUBRECIPIENT’s control that was acquired or improved in whole or in part with CDBG funds from the CITY for $25,000 or less shall be disposed of, at the expiration or termination of this contract, in accordance with instructions from the CITY. All real property purchased in whole or in part with funds from this and previous agreements with the CITY, or transferred to the SUBRECIPIENT after being purchased in whole or in part with funds from the CITY, shall be listed in the property records of the SUBRECIPIENT and shall include a legal description, size, date of acquisition, value at time of acquisition, present market value, present condition, address or location, owner’s name if different from the SUBRECIPIENT, information on the transfer or disposition of the property, and map. The property records shall describe the programmatic purpose for which the property was acquired and identify the CDBG national objective that will be met. If the property was improved, the records shall describe the programmatic purpose for which the improvements were made and identify the CDBG national objective that will be met. All nonexpendable personal property purchased in whole or in part with funds from this and previous agreements with the CITY shall be listed in the property records of the 8 SUBRECIPIENT and shall include a description of the property, location, model number, manufacturer’s serial number, date of acquisition, funding source, unit cost at the time of acquisition, present market value, property inventory number, information on its condition, and information on transfer, replacement, or disposition of the property. The SUBRECIPIENT shall obtain prior written approval from the CITY for the disposition of real property, expendable personal property, and nonexpendable personal property purchased in whole or in part with funds given to the SUBRECIPIENT pursuant to the terms of this agreement. The SUBRECIPIENT shall dispose of all such property in accordance with instructions from the CITY. Those instructions may require the return of all such property to the CITY. 9.10 Reversion of Assets: The SUBRECIPIENT shall return to the CITY, upon expiration or termination of this Agreement, all the assets owned or held as a result of this Agreement, including, but not limited to any funds on hand, any accounts receivable attributable to these funds, mortgages, notes, and other collateral and any overpayments due to unearned funds or costs disallowed pursuant to the terms of this Agreement that were disbursed to the SUBRECIPIENT by the CITY. The SUBRECIPIENT shall within 30 days of expiration or termination of this Agreement execute any and all documents as required by the CITY to effectuate the reversion of assets. Any funds not earned, as described and provided for in OMB A-122, by the SUBRECIPIENT prior to the expiration or termination of this Agreement shall be retained by the CITY. 9.11 Conflicts with Applicable Laws: If any provision of this agreement conflicts with any applicable law or regulation, only the conflicting provision shall be deemed by the parties hereto to be modified to be consistent with the law or regulation or to be deleted if modification is impossible. However, the obligations under this agreement, as modified, shall continue and all other provisions of this agreement shall remain in full force and effect. 9.12 Renegotiation or Modification: Modifications of provisions of the agreement shall be valid only when in writing and signed by duly authorized representatives of each party. The parties agree to renegotiate this agreement if the CITY determines, in its sole and absolute discretion, that federal, State and/or CITY revisions of any applicable laws or regulations, or increases or decreases in budget allocations make changes in this agreement necessary. 9.13 Right to Waive: The CITY may, for good and sufficient cause, as determined by the CITY in its sole and absolute discretion, waive provisions in this agreement or seek to obtain such waiver from the appropriate authority. Waiver requests from the SUBRECIPIENT shall be in writing. Any waiver shall not be construed to be a modification of this agreement. 9.14 Disputes: In the event an unresolved dispute exists between the SUBRECIPIENT and the CITY, the CITY shall refer the questions, including the views of all interested parties and the recommendation of the CITY, to the City Manager for determination. The City Manager, or an authorized representative, will issue a determination within 30 calendar days of receipt and so advise the CITY and the SUBRECIPIENT, or in the event additional time is necessary, the CITY will notify the SUBRECIPIENT within the 30 day period that additional time is necessary. The SUBRECIPIENT agrees that the City Manager’s determination shall be final and binding on all parties. 9 9.15 Indemnification: To the extent provided by law, the SUBRECIPIENT shall indemnify and hold harmless and defend the CITY, its agents, employees, and elected officers from and against any and all claims, demands or causes of action of whatsoever kind or nature arising out of error, omission, negligent act, conduct or misconduct by the SUBRECIPIENT, its agents, employees or officers in the performance of services under this Agreement. IN WITNESS OF THE FOREGOING, the parties have set their hands and seals on the day and year written above. WITNESSES: ACHIEVEMENT CENTERS FOR CHILDREN AND FAMILIES. ___________________________ By: _________________________________ Print_______________________ ___________________________ Print_______________________ STATE OF FLORIDA COUNTY OF PALM BEACH The foregoing instrument was acknowledged before me this ___ day of _______________, 20___, by ______, who is personally known to me. NOTARY PUBLIC Sign Print Personally Known _______ OR Produced Identification ________ Type of Identification Produced: ___________________________ ATTEST: CITY OF DELRAY BEACH, FLORIDA ____________________ By: City Clerk Mayor Approved as to form: ____________________ City Attorney ATTACHMENT “A” SCOPE OF SERVICES The major focus of the ACHIEVEMENT CENTERS FOR CHILDREN AND FAMILIES under this Agreement will be providing day care, after-school care and related services to eligible children. At least 51% of the beneficiaries of a project funded under this Agreement must be low-and moderate-income persons (as determined annually by HUD for the area). CDBG funds may be used for programmatic costs including, but not limited to, salaries of direct service personnel, training, insurance, office supplies and expenses, education supplies and materials, utilities, and sponsored events (field trips). Services under this program will be provided at the Center’s main facility located at 555 N.W. 4th Avenue, Delray Beach, Florida and at Village Academy, 400 SW 12th Avenue, Delray Beach, Florida. The major tasks which the Achievement Centers for Children and Families will perform in connection with the provision of the eligible day care and after-school services include, but are not limited to, the following: a. Maintain facility at all times in conformance with all applicable codes, licensing, and other requirements for the operation of a day care center. The facility must also be handicapped accessible, and the day care services must be organized into separate areas appropriate for each of the age groupings being served (toddler – 12 months to 3 years, pre-school – 3 to 4 years, prekindergarten – 4 to 5 years and after-school/out-of school care --5 years to 14 years). b. Accept applications and perform eligibility determinations. At least 51 percent (51%) of the beneficiaries of subsidized day care must be low and moderate-income persons (as determined annually by HUD for the area). c. Offer day care services from 6:30 a.m. to 5:30 p.m. Monday through Friday, after-school/out-ofschool services from public school closing time to 7:00 p.m. and Saturdays 7:30 a.m. to 4:30 p.m. to eligible families. d. Ensure that the numbers, background, and qualifications of the Achievement Center’s for Children and Families’ staff providing the on-site day care and any related services at all times are appropriate for the enrolled child population at the center and meet at least the minimum standards established by the pertinent licensing bodies. e. As part of the day care services, provide a range of structured social, educational, and cultural enrichment activities appropriate to the age groups being served. f. Maintain program and financial records documenting the eligibility, attendance, provision of services, and the Center’s expenses relative to the children receiving day care services as a result of assistance provided through the CDBG program. ATTACHMENT “B” * Allowable under limited circumstances. ** Allowable only with prior permission from the CITY. *** Allowable only as a direct cost with permission from the CITY. ALLOWABLE AND UNALLOWABLE COSTS UNDER OMB A-122 ITEM OF COST OMB A-122 (NONPROFITS) Unallowable Allowable Advertising  Bad debts  Bonding  Communication  Compensation, personnel services  Contingency provisions  Contributions (to others)  Depreciation, use allowance  Donations (from others)  Employee morale, health, welfare  Entertainment  Equipment ** Fines, penalties  Fringe benefits  Fund raising, interest, investment management  Idle facility, idle capacity  Insurance & indemnification  Interest Labor relations  Lobbying  Losses on other awards  Maintenance, repair  Materials, supplies  Memberships, subscriptions, professional activity  Organization costs ** Overtime, shift premiums ** Page charges in professional journals (research)  Participant support costs ** Patent costs  Pension plans  Plant security  Pre-award costs ** Professional services  Profits, losses on asset disposition * Public information service *** Publication and printing costs *** Rearrangement, facility alteration ** Reconversion costs  Recruiting  Relocation * ATTACHMENT “B” * Allowable under limited circumstances. ** Allowable only with prior permission from the CITY. *** Allowable only as a direct cost with permission from the CITY. ITEM OF COST OMB A-122 (NONPROFITS) Unallowable Allowable Rental  Royalties, use of patents, copyrights  Severance pay  Specialized service facilities  Taxes  Termination-related costs  Training, education  Transportation  Travel * ATTACHMENT “C” INSURANCE REQUIREMENTS WORKER’S COMPENSATION This coverage shall include Worker’s Compensation Insurance covering all employees and include Employer’s Liability with limits meeting all applicable state and federal laws. This coverage must extend to any subcontractor that does not have their own Worker’s Compensation and Employer’s Liability Insurance. Thirty (30) days notice of cancellation is required and must be provided to the CITY via Certified Mail. COMMERCIAL GENERAL LIABILITY This coverage shall be on an “Occurrence” basis. Coverage shall include Premises and Operations; Independent Contractors’ Products and Completed Operations and Contractual Liability. This policy shall provide coverage for death, personal injury or property damage that could arise directly or indirectly from the performance of this Agreement. The Minimum Limits of Coverage shall be ($1,000,000) per occurrence, Combined Single Limit for bodily Injury Liability and Property Damage Liability. THE CITY OF DELRAY BEACH MUST BE NAMED AS AN ADDITIONAL INSURED ON THE COMMERCIAL GENERAL LIABILITY POLICY. Thirty (30) days written notice must be provided to the CITY via Certified Mail in the event of cancellation. BUSINESS AUTOMOBILE LIABILITY The minimum limits of coverage shall be ($500,000) per occurrence, Combined Single Limit for Bodily Injury Liability and Property Damage Liability. This coverage shall be an “Any Auto” type policy. The CITY must be listed as an Additional Insured under the Policy. Thirty (30) days written notice must be provided to the CITY via Certified Mail in the event of cancellation. In the event that the SUBRECIPIENT does not own any vehicles, we will accept hired and nonowned coverage in the amounts listed above. In addition, we will require an affidavit signed by the SUBRECIPIENT indicating the following: does not own any vehicles. "Company Name" In the event we acquire any vehicles throughout the term of his Contract/Agreement, agrees to purchase "Any Auto" or "Company Name" Comprehensive Form coverage as of the date of acquisition. The SUBRECIPIENT’s Signature:_________________________________________ "Attachment D" MONTHLY PROJECT BUDGET Line Item CD Funds Requested Applicant’s Match Other Project Funds Total Project Budget ADMINISTRATION: Personnel (# ) Payroll Taxes Employee Benefits Office Supplies Copy Supplies Postage Telephone Promotional Professional Services Vehicle Fuel/Mileage Other: (Insurance, etc.) PROGRAM: Acquisition Reconstruction Rehabilitation Installation Demolition Training/Tech. Asst.* Direct Assistance** Rental of Space Purchase/Rental of Equipment Professional Services for Clients Child Care Other: Please list applicant’s anticipated expenditures, detailing requested funds and applicant’s matching funds. Please place C=Cash, S=Sweat Equity, O=Other Grants, D=Donations beside each amount under “Applicant’s Match” to denote the type of match being us TOTALS $ -$ -$ -$ - MEMORANDUM TO: Mayor and City Commissioners FROM: Lula Butler, Director, Community Improvement THROUGH: David Harden, City Manager DATE: December 20, 2011 SUBJECT: AGENDA ITEM 8.H. -REGULAR COMMISSION MEETING OF JANUARY 3, 2012 CDBG SUB-RECIPIENT FUNDING AGREEMENT/FAIR HOUSING CENTER OF THE GREATER PALM BEACHES ITEM BEFORE COMMISSION Approval is requested to execute an agreement for funding with the above-listed sub-recipient under the 2011-2012 Community Development Block Grant (CDBG) Program. BACKGROUND In accordance with 24 CFR 570.301, a Public Hearing was held before the City Commission on August 2, 2011, to obtain public comment on the proposed budget for the approval of the Community Development Block Grant Consolidated Action Plan for fiscal year 2011-2012. The Action Plan contains an appropriation for public service activity and was approved by the Commission. CDBG Program regulations at 24 CFR 570.503 require written agreements prior to the disbursement of funds to sub-recipient organizations, specifying the work to be performed and reporting requirements, among other requirements and governing provisions. These agreements have been developed in accordance with the stated regulations and have been reviewed and approved by the City Attorney for legal sufficiency and form. FUNDING SOURCE Community Development Block Grant 118-1966-554.82.12 RECOMMENDATION Staff recommends approval and execution of the agreements in order that funding may proceed in accordance with the Commission-approved Action Plan for fiscal year 2011-2012. 1 FY 2011-2012 COMMUNITY DEVELOPMENT BLOCK GRANT AGREEMENT between CITY OF DELRAY BEACH and FAIR HOUSING CENTER OF THE GREATER PALM BEACHES, INC. THIS AGREEMENT is entered into between the CITY OF DELRAY BEACH, a Florida municipal corporation, hereinafter referred to as “CITY,” and FAIR HOUSING CENTER OF THE GREATER PALM BEACHES, INC., hereinafter referred to as “the SUBRECIPIENT,” having its principal office at 1300 West Lantana Road, Suite 100, Lantana, Florida 33462. W I T N E S S E T H: WHEREAS, the CITY has entered into an Agreement with the U.S. Department of Housing and Urban Development (HUD) for a grant for the execution and implementation of a Community Development Block Grant (CDBG) Program in the CITY, pursuant to Title I of the Housing and Community Development Act of 1974 (as amended); and WHEREAS, the CITY desires to engage the SUBRECIPIENT to implement an activity of the Delray Beach CDBG Program; NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the parties hereto agree as follows: ARTICLE I DEFINITION AND PURPOSE 1. Definitions 1.1 “CDBG” means Community Development Block Grant program. 1.2 “HUD” means the U.S. Department of Housing and Urban Development. 1.3 “24 CFR” refers to the Section of the Code of Federal Regulations pertaining to the U.S. Dept. of HUD. 1.4 “Program Income” means gross income received, directly generated or earned from the use of CDBG funds. Program Income includes, but is not limited to, interest earned on advances of federal funds or royalties received as a result of patents or copyrights produced under this grant. 1.5 “OMB” means Office of Management and Budget. 1.6 “Low-and Moderate-Income” means a household whose income is within specified income limits set forth by HUD. 1.7 Property: a. “Real Property” means land, land improvements, structures, fixtures and appurtenances thereto, excluding movable machinery and equipment. 2 b. “Personal Property” means personal property of any kind except real property. c. “Nonexpendable Personal Property” means tangible (i.e., physical) personal property of a nonconsumable nature, with a value of $500 or more per item, with a normal expected life of one or more years, not fixed in place, and not an integral part of a structure, facility or another piece of equipment. d. “Expendable Personal Property” means all tangible personal property other than nonexpendable property. 2. Purpose The purpose of this Agreement is to state the covenants and conditions under which the SUBRECIPIENT will implement the Statement of Work set forth in Article II of this agreement. ARTICLE II STATEMENT OF WORK The SUBRECIPIENT shall carry out the activities specified in Attachment A, “Scope of Services.” ARTICLE III FUNDING AND METHOD OF PAYMENT 3.1 The maximum amount payable by the CITY under this Agreement will be Six Thousand Dollars and 00/100 ($6,000.00). 3.2 The CITY will be billed by the SUBRECIPIENT and will disburse $1000.00 per seminar/session. Bills shall be submitted by the SUBRECIPIENT at least two weeks in advance. 3.3 Prior to receipt of CDBG funds (through reimbursement), SUBRECIPIENT shall submit for each seminar/session conducted, the following documentation: a. An agenda displaying the date, time, and location of the session/seminar conducted (the NS Division must have been notified in advance of the same, as required in the Scope of Service, item (b); b. A list of invitees/attendees for each session/seminar; c. A request for funds/invoice; d. Proof that each seminar/session was adequately advertised and marketed to residents of Delray Beach, in an effort to ensure maximum participation and effectiveness (i.e. marketing tools used, copy of flyers/invitations/newspaper ads, and a narrative of other efforts made (activity report); e. A grantee performance report generated for each seminar showing summary statistics on race, ethnicity, and income level of clients served by the program. 3.4 Release of funds is subject to the approval of the Director of Community Improvement. 3 ARTICLE IV TERM OF AGREEMENT The term of this Agreement shall be from October 1, 2011, to September 30, 2012. ARTICLE V SUSPENSION AND TERMINATION 5.1 Termination/Suspension of Payments/Agreement for Cause: If through any cause either party shall fail to fulfill in 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 or suspend payments in whole or in part by giving written notice of such termination or suspension of payments and specify the effective date of termination or suspension. If payments are withheld, the CITY shall specify in writing the actions that must be taken by the SUBRECIPIENT as a condition precedent to resumption of payments and shall specify a reasonable date for compliance. Sufficient cause for suspension of payments shall include, but not be limited to: a. ineffective or improper use of CDBG funds, b. failure to comply with the Statement of Work or terms of this Agreement, c. failure to submit reports as required, d. submittal of materially incorrect or incomplete reports, e. failure to comply with any additional conditions that may be imposed by HUD. 5.2 Termination for Convenience of City: The CITY may terminate this Agreement without cause at any time by giving at least ten (10) working days notice in writing to the SUBRECIPIENT. If this Agreement is terminated by the CITY as provided herein, the SUBRECIPIENT will be paid for allowable services performed under Article II of this Agreement until the effective date of the termination. 5.3 Termination for Convenience of the SUBRECIPIENT: At any time during the term of this Agreement, the SUBRECIPIENT may, at its option and for any reason, terminate this Agreement upon ten (10) working days written notice to the CITY. Upon termination, the SUBRECIPIENT shall be paid for services rendered pursuant to this Agreement through and including the date of termination. ARTICLE VI RECORDS AND REPORTS 6.1 The SUBRECIPIENT agrees to retain supporting documentation relating to activities funded by this Agreement for a period of five years after the termination of the Agreement. 6.2 The SUBRECIPIENT agrees to submit upon request other documentation which may later be determined necessary to assure compliance with this Agreement. 4 ARTICLE VII PROGRAM INCOME The SUBRECIPIENT agrees to expend CDBG funds for the purpose outlined in Article I of this Agreement. It is not anticipated that program income shall be generated from this allocation. However, such income, if generated, may be retained by the SUBRECIPIENT and used for costs that are in addition to the approved costs of this agreement, provided that such costs specifically further the objectives of this agreement. Under no circumstances shall the SUBRECIPIENT use program income to pay for charges or expenses that are specifically not allowed pursuant to the terms of this agreement and applicable federal regulations or rules. The use of program income by the SUBRECIPIENT shall comply with the requirements set forth at 24 CFR 570.504. ARTICLE VIII PUBLICITY The SUBRECIPIENT shall ensure that all publicity, public relations, advertisements and signs, recognize the CITY and the CDBG Program for the support of all contracted activities. The use of the official CITY logo is permissible, but all signs used to publicize CITY contracted activities must be approved by the CITY prior to being posted. ARTICLE IX GENERAL CONDITIONS 9.1 Federal, State, County and CITY Laws and Regulations: The SUBRECIPIENT shall comply with applicable provisions of applicable federal, state, County, and CITY laws, regulations and rules, including OMB A-122, OMB A-21, OMB A-133. The SUBRECIPIENT shall comply with Section 504 of the Rehabilitation Act of 1973, as amended, which prohibits discrimination on the basis of handicap; Title VI of the Civil Rights Act of 1964, as amended, which prohibits discrimination on the basis of race, color, or national origin; the Age Discrimination Act of 1975, as amended, which prohibits discrimination on the basis of age; Title VIII of the Civil Rights Act of 1968, as amended, and Executive Order 11063 which prohibits discrimination in housing on the basis of race, color, religion, sex, or national origin; Executive Order 11246, as amended which requires equal employment opportunity; and with the Energy Policy, amended and Conservation Act (Pub.L 94-163) which requires mandatory standards and policies relating to energy efficiency. The SUBRECIPIENT shall report its compliance with Section 504 of the Rehabilitation Act whenever so requested by the CITY. The SUBRECIPIENT shall comply with all applicable requirements of the Americans with Disabilities Act (ADA) of 1990, including, but not limited to, those provisions pertaining to employment, program services, transportation, communications, access to facilities, renovations, and new construction. The SUBRECIPIENT shall comply with all federal laws and regulations pertaining to environmental standards described in 24 CFR Subpart K, except that: a. The SUBRECIPIENT does not assume the CITY’s environmental responsibilities described at 570.604, and b. The SUBRECIPIENT does not assume the CITY’s responsibility for initiating the review process under the provisions of 24 CFR part 52. 5 9.2 Opportunities for Residents and Civil Rights Compliance: The SUBRECIPIENT agrees that no person shall on the grounds of race, color, national origin, religion, or sex be excluded from the benefits of, or be subjected to, discrimination under any activity carried out by the performance of this Agreement. To the greatest feasible extent, lower-income residents of the project areas shall be given opportunities for training and employment; and to the greatest feasible extent, eligible business concerns located in or owned in substantial part by persons residing in the project areas shall be awarded contracts in connection with the project. 9.3 Evaluation and Monitoring: The SUBRECIPIENT agrees that the CITY will carry out periodic monitoring and evaluation activities as determined necessary and that the continuation and/or renewal of this Agreement is dependent upon satisfactory evaluation conclusions. Such evaluations will be based on the terms of this Agreement, comparisons of planned versus actual progress relating to activity scheduling, budgets, audit reports, and output measures. The SUBRECIPIENT agrees to furnish upon request to the CITY and make copies of transcriptions of such records and information as is determined necessary by the CITY. The SUBRECIPIENT shall submit on a schedule set by the CITY and at other times upon request, information and status reports required by the CITY to enable the evaluation of said progress and to allow for completion of reports required of the CITY by HUD. The SUBRECIPIENT shall allow the CITY or HUD to monitor its agency on site. Such site visits may be scheduled or unscheduled as determined by the CITY or HUD. 9.4 Audits: Nonprofit organizations that expend $500,000 or more annually in federal awards shall have a single or program specific audit conducted accordance with OMB A-133. Nonprofit organizations that expend less than $500,000 annually in federal awards shall be exempt from an audit conducted in accordance with OMB A-133, although their records must be available for review. These agencies are required by the CITY to submit “reduced scope” audits (e.g., financial audits, performance audits). Each audit shall cover a time period of not more than 12 months and an audit shall be submitted covering each assisted period until all the assistance received from this agreement has been reported on. A copy of the audit report must be received by the CITY no later than six months following each audit period. The SUBRECIPIENT shall maintain all records in accordance with generally accepted accounting principles, procedures, and practices which shall sufficiently and properly reflect all revenues and expenditures of funds provided directly or indirectly by the CITY pursuant to the terms of this agreement. 9.5 Uniform Administrative Requirements: The SUBRECIPIENT agrees to maintain books, records and documents in accordance with accounting procedures and practices which sufficiently and properly reflect all expenditures of funds provided by the CITY under this Agreement. The SUBRECIPIENT is required to comply with the following uniform administrative requirements: a. Specific provisions of the uniform administrative requirements of OMB Circular A-110, as implemented at 24 CFR Part 84, “Uniform Administrative Requirements for Grants and Agreements with Institutions of Higher Education, Hospitals and Other Non-Profit Organizations.” b. OMB Circular A-122 “Cost Principles for Non-Profit Organizations” (a list of allowable and unallowable costs appears in Attachment B). 6 c. Applicable provisions of 24 CFR 570.502. 9.6 Lobbying Prohibition: The SUBRECIPIENT shall certify that no federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any federal Agreement, the making of any federal grant, the making of any federal loan, the entering into of any cooperative Agreement, and the extension, continuation, renewal, amendment, or modification of any federal Agreement, grant, loan, or cooperative Agreement. The SUBRECIPIENT shall disclose to the CITY if any funds other than federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this federal Agreement. 9.7 Section 3 Requirements: The SUBRECIPIENT agrees to comply with all Section 3 requirements applicable to contracts funded through this Agreement. Information on Section 3 is available from the CITY upon request. The SUBRECIPIENT 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 a. The work to be performed under this agreement is subject to the requirements of Section 3 of the Housing and Urban Development Act of 1968, as amended, 12 U.S.C. 1701 (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. b. The parties to this agreement agree to comply with HUD’s requirements in 24 CFR Part 135, which implement Section 3. As evidenced by their execution of this agreement, the parties to this agreement certify that they are under no contractual or other impediment that would prevent them from complying with the Part 135 regulations. c. The SUBRECIPIENT agrees to send to each labor organization or representative of workers with which the SUBRECIPIENT has a collective bargaining Agreement or other understanding, if any, a notice advising the labor organization or workers representative of the SUBRECIPIENT’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. 7 d. The SUBRECIPIENT 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 SUBRECIPIENT will not subcontract with any subcontractor where the SUBRECIPIENT has notice or knowledge that the subcontractor has been found in violation of the regulations in 24 CFR Part 135. e. The SUBRECIPIENT will certify that any vacant employment positions, including training positions, that are filled (1) after the SUBRECIPIENT is selected but before the contract is 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 SUBRECIPIENT’s obligations under 24 CFR Part 135. f. 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. 9.8 Insurance: The SUBRECIPIENT shall furnish to the CITY, c/o the Community Improvement Department, certificate(s) of insurance evidencing coverage that meets the requirements outlined in Attachment C. 9.9 Property: Any real property under the SUBRECIPIENT’s control that was acquired or improved in whole or in part with CDBG funds received from the CITY in excess of $25,000 shall be either: a. Used to meet one of the three CDBG national objectives required by and defined in 24 CFR Part 570.208 for five years following the expiration or termination of this agreement, or for such longer period of time as determined by the CITY; or b. Not used to meet a CDBG national objective, in which case the SUBRECIPIENT shall pay to the CITY an amount equal to the market value of the property as may be determined by the CITY, less any proportionate portion of the value attributable to expenditures of non-CDBG funds for acquisition of, or improvement to, the property. Reimbursement is not required after the period of time specified in Paragraph 9.9.a., above. Any real property under the SUBRECIPIENT’s control that was acquired or improved in whole or in part with CDBG funds from the CITY for $25,000 or less shall be disposed of, at the expiration or termination of this contract, in accordance with instructions from the CITY. All real property purchased in whole or in part with funds from this and previous agreements with the CITY, or transferred to the SUBRECIPIENT after being purchased in whole or in part with funds from the CITY, shall be listed in the property records of the SUBRECIPIENT and shall include a legal description, size, date of acquisition, value at time of acquisition, present market value, present condition, address or location, owner’s name if different from the SUBRECIPIENT, information on the transfer or disposition of the property, and map. The property records shall describe the programmatic purpose for which the property was acquired and identify the CDBG national objective that will be met. If the property was improved, the records shall describe the programmatic purpose for which the improvements were made and identify the CDBG national objective that will be met. 8 All nonexpendable personal property purchased in whole or in part with funds from this and previous agreements with the CITY shall be listed in the property records of the SUBRECIPIENT and shall include a description of the property, location, model number, manufacturer’s serial number, date of acquisition, funding source, unit cost at the time of acquisition, present market value, property inventory number, information on its condition, and information on transfer, replacement, or disposition of the property. The SUBRECIPIENT shall obtain prior written approval from the CITY for the disposition of real property, expendable personal property, and nonexpendable personal property purchased in whole or in part with funds given to the SUBRECIPIENT pursuant to the terms of this agreement. The SUBRECIPIENT shall dispose of all such property in accordance with instructions from the CITY. Those instructions may require the return of all such property to the CITY. 9.10 Reversion of Assets: The SUBRECIPIENT shall return to the CITY, upon expiration or termination of this Agreement, all the assets owned or held as a result of this Agreement, including, but not limited to any funds on hand, any accounts receivable attributable to these funds, mortgages, notes, and other collateral and any overpayments due to unearned funds or costs disallowed pursuant to the terms of this Agreement that were disbursed to the SUBRECIPIENT by the CITY. The SUBRECIPIENT shall within 30 days of expiration or termination of this Agreement execute any and all documents as required by the CITY to effectuate the reversion of assets. Any funds not earned, as described and provided for in OMB A-122, by the SUBRECIPIENT prior to the expiration or termination of this Agreement shall be retained by the CITY. 9.11 Conflicts with Applicable Laws: If any provision of this agreement conflicts with any applicable law or regulation, only the conflicting provision shall be deemed by the parties hereto to be modified to be consistent with the law or regulation or to be deleted if modification is impossible. However, the obligations under this agreement, as modified, shall continue and all other provisions of this agreement shall remain in full force and effect. 9.12 Renegotiation or Modification: Modifications of provisions of the agreement shall be valid only when in writing and signed by duly authorized representatives of each party. The parties agree to renegotiate this agreement if the CITY determines, in its sole and absolute discretion, that federal, State and/or CITY revisions of any applicable laws or regulations, or increases or decreases in budget allocations make changes in this agreement necessary. 9.13 Right to Waive: The CITY may, for good and sufficient cause, as determined by the CITY in its sole and absolute discretion, waive provisions in this agreement or seek to obtain such waiver from the appropriate authority. Waiver requests from the SUBRECIPIENT shall be in writing. Any waiver shall not be construed to be a modification of this agreement. 9.14 Disputes: In the event an unresolved dispute exists between the SUBRECIPIENT and the CITY, the CITY shall refer the questions, including the views of all interested parties and the recommendation of the CITY, to the City Manager for determination. The City Manager, or an authorized representative, will issue a determination within 30 calendar days of receipt and so advise the CITY and the SUBRECIPIENT, or in the event additional time is necessary, the CITY will notify the SUBRECIPIENT within the 30 day 9 period that additional time is necessary. The SUBRECIPIENT agrees that the City Manager’s determination shall be final and binding on all parties. 9.15 Indemnification: To the extent provided by law, the SUBRECIPIENT shall indemnify and hold harmless and defend the CITY, its agents, employees, and elected officers from and against any and all claims, demands or causes of action of whatsoever kind or nature arising out of error, omission, negligent act, conduct or misconduct by the SUBRECIPIENT, its agents, employees or officers in the performance of services under this Agreement. IN WITNESS OF THE FOREGOING, the parties have set their hands and seals on the day and year written above. WITNESSES: FAIR HOUSING CENTER OF THE GREATER PALM BEACHES, INC. ___________________________ By:_________________________________ Print_______________________ ___________________________ Print_______________________ STATE OF FLORIDA COUNTY OF PALM BEACH The foregoing instrument was acknowledged before me this ___ day of _______________, 20___, by __________________________, who is personally known to me. NOTARY PUBLIC Sign Print Personally Known _______ OR Produced Identification ________ Type of Identification Produced: ___________________________ ATTEST: CITY OF DELRAY BEACH, FLORIDA ____________________ By: City Clerk Mayor Approved as to form: ____________________ City Attorney ATTACHMENT “A” SCOPE OF SERVICES The major focus of the Fair Housing Center of the Greater Palm Beaches, Inc. under this Agreement will be to provide a minimum of six (6) Housing Industry Provider /Community Education Sessions for residents of Delray Beach, including school-age children and community organizations, upon the following terms and conditions: a. All six (6) seminars and sessions will be accomplished during the effective date of the contract period (October 1, 2011 through September 30, 2012). b. Each seminar or session will be conducted following notification of the Neighborhood Services Division regarding date, location and the submittal of supporting documentation (i.e. flyers, marketing tools, advertising efforts, etc.). c. Each seminar/session must be adequately marketed to residents of Delray Beach, in an effort to ensure maximum participation and effectiveness (copies to be submitted to NS Division prior to seminar/session). d. Reimbursement of expenses will be provided upon completion of each seminar/session, at the predetermined amount of $1,000.00 per seminar/session, with the total maximum reimbursement not exceeding $6,000.00 (for the eight seminars/sessions). e. All seminars/sessions will be open to participants, free of charge f. The Fair Housing Center of the Greater Palm Beaches, Inc. shall provide: 1. Community Education Sessions for civic organizations, community based agencies, social service providers, immigrant populations and/or schools within the municipal boundaries of the City of Delray Beach. These sessions shall be designated to educate the public and protected classes to identify incidents of discrimination in housing and to gain an understanding of the means to find remedies, to seek redress and relief. Sessions are to be conducted citywide on an ongoing basis during the program year. A minimum of four (4) sessions shall be conducted during the period beginning October 1, 2011 and ending September 30, 2012. One (1) of the sessions will focus on the education of children about housing discrimination. 2. Housing Industry Provider Education Seminars for developers, real estate brokers, property managers, financial institutions, and the media/advertising industry. The seminars shall provide information on fair housing laws, Community Reinvestment Act regulations and affirmative marketing requirements. A minimum of two (2) seminars shall be conducted during the period beginning October 1, 2011 and ending September 30, 2012. ATTACHMENT “B” * Allowable under limited circumstances. ** Allowable only with prior permission from the CITY. *** Allowable only as a direct cost with permission from the CITY. ALLOWABLE AND UNALLOWABLE COSTS UNDER OMB A-122 ITEM OF COST OMB A-122 (NONPROFITS) Unallowable Allowable Advertising  Bad debts  Bonding  Communication  Compensation, personnel services  Contingency provisions  Contributions (to others)  Depreciation, use allowance  Donations (from others)  Employee morale, health, welfare  Entertainment  Equipment ** Fines, penalties  Fringe benefits  Fund raising, interest, investment management  Idle facility, idle capacity  Insurance & indemnification  Interest Labor relations  Lobbying  Losses on other awards  Maintenance, repair  Materials, supplies  Memberships, subscriptions, professional activity  Organization costs ** Overtime, shift premiums ** Page charges in professional journals (research)  Participant support costs ** Patent costs  Pension plans  Plant security  Pre-award costs ** Professional services  Profits, losses on asset disposition * Public information service *** Publication and printing costs *** Rearrangement, facility alteration ** Reconversion costs  Recruiting  Relocation * ATTACHMENT “B” * Allowable under limited circumstances. ** Allowable only with prior permission from the CITY. *** Allowable only as a direct cost with permission from the CITY. ITEM OF COST OMB A-122 (NONPROFITS) Unallowable Allowable Rental  Royalties, use of patents, copyrights  Severance pay  Specialized service facilities  Taxes  Termination-related costs  Training, education  Transportation  Travel * ATTACHMENT “C” INSURANCE REQUIREMENTS WORKER’S COMPENSATION This coverage shall include Worker’s Compensation Insurance covering all employees and include Employer’s Liability with limits meeting all applicable state and federal laws. This coverage must extend to any subcontractor that does not have their own Worker’s Compensation and Employer’s Liability Insurance. Thirty (30) days notice of cancellation is required and must be provided to the CITY via Certified Mail. COMMERCIAL GENERAL LIABILITY This coverage shall be on an “Occurrence” basis. Coverage shall include Premises and Operations; Independent Contractors’ Products and Completed Operations and Contractual Liability. This policy shall provide coverage for death, personal injury or property damage that could arise directly or indirectly from the performance of this Agreement. The Minimum Limits of Coverage shall be ($1,000,000) per occurrence, Combined Single Limit for bodily Injury Liability and Property Damage Liability. THE CITY OF DELRAY BEACH MUST BE NAMED AS AN ADDITIONAL INSURED ON THE COMMERCIAL GENERAL LIABILITY POLICY. Thirty (30) days written notice must be provided to the CITY via Certified Mail in the event of cancellation. BUSINESS AUTOMOBILE LIABILITY The minimum limits of coverage shall be ($500,000) per occurrence, Combined Single Limit for Bodily Injury Liability and Property Damage Liability. This coverage shall be an “Any Auto” type policy. The CITY must be listed as an Additional Insured under the Policy. Thirty (30) days written notice must be provided to the CITY via Certified Mail in the event of cancellation. In the event that the SUBRECIPIENT does not own any vehicles, we will accept hired and nonowned coverage in the amounts listed above. In addition, we will require an affidavit signed by the SUBRECIPIENT indicating the following: does not own any vehicles. "Company Name" In the event we acquire any vehicles throughout the term of his Contract/Agreement, agrees to purchase "Any Auto" or "Company Name" Comprehensive Form coverage as of the date of acquisition. The SUBRECIPIENT’s Signature:_________________________________________ MEMORANDUM TO: Mayor and City Commissioners FROM: Lula Butler, Director, Community Improvement THROUGH: David Harden, City Manager DATE: December 20, 2011 SUBJECT: AGENDA ITEM 8.I. -REGULAR COMMISSION MEETING OF JANUARY 3, 2012 AMENDMENT TO THE THIRD ADDENDUM TO CONTRACT FOR SALE AND PURCHASE/2216 N.E. 3RD AVENUE ITEM BEFORE COMMISSION Staff requests City Commission approval of Amendment to the third addendum to the contract to sell/transfer one (1) NSP property to the Delray Beach Community Land Trust (DBCLT) for the benefit and resale of the unit to a household with an income less than one-hundred twenty percent (120%) of Area Median Income (AMI) as determined by HUD. BACKGROUND The original contract for sale was approved by the Commission at the regular meeting of October 18, 2011. The repayment from the sale of the property from the DBCLT to the City has changed from $95,350 to $91,350 based on the new appraised value. This item is for the sale/transfer of the property addressed as 2216 NE 3rd Avenue, Delray Beach, FL 33444. RECOMMENDATION Staff is recommending approval of the amendment to the third addendum of the contract to revise the amount of repayment back to the City from $95,350 to $91,350. MEMORANDUM TO: Mayor and City Commissioners FROM: Lula Butler, Director, Community Improvement THROUGH: David Harden, City Manager DATE: December 28, 2011 SUBJECT: AGENDA ITEM 8.J. -REGULAR COMMISSION MEETING OF JANUARY 3, 2012 REVISED WORKFORCE HOUSING CONVENANT /BAMFOUR, LLC/DKB REALTY INVESTMENT, INC./MATHIAS DEVELOPMENT ITEM BEFORE COMMISSION City Commission consideration of a revised 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 lending institution for the Midtown project has requested that the City make the following changes to the Workforce Housing Covenant: (1) Under Recitals, C, that rental rates do not exceed a certain percentage of the rent limits for the area as published by the Florida Housing Finance Corporation. (2) Under II Rental Units, 2.3 -requires that all moderate-income households shall comply with the underwriting criteria established by the developer for all tenants. RECOMMENDATION Staff is recommending City Commission approval of the revised 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 Florida Housing Finance Corporation rent limits for the area. 2 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. 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. 3 1.10. Household – A single person living alone, or two or more persons sharing residency, with a combined income available to cover household expenses. 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. However, the Developer shall be under no obligation to rent a Unit to any particular 4 Moderate Income Household and may use its standard underwriting criteria to qualify all 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 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 5 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. 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 6 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. 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 7 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. 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. 8 d. Workforce Housing Unit resales shall be limited to Households of the same category relative to income. 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. 9 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. 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. 10 d. Household size. 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 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, 11 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. 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 12 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 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: 13 Notices to the City shall be sent to: City of Delray Beach 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: 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. 14 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 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 15 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. [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: David T. Harden, City Manager DATE: December 22, 2011 SUBJECT: AGENDA ITEM 8.K. -REGULAR COMMISSION MEETING OF JANUARY 3, 2012 RATIFICATION TO THE KIDS AND COPS COMMITTEE ITEM BEFORE COMMISSION This item is before the City Commission for ratification to the Kids and Cops Committee. BACKGROUND Mr. Adrian Ralkauskas was appointed to the Kids and Cops Committee on November 2, 2011, as the representative for the Police Department due to the resignation of Mr. Edward Smith. The term is unexpired ending on November 11, 2013. The Kids and Cops Committee was established as an Advisory Board to the City Commission in May, 1994 with the adoption of Ordinance No. 20-94. Its primary goal is to strengthen the relationship between the local youth of our community and members of the Delray Beach Police Department through various programs and activities. It is composed of representatives from the City’s Police and Parks and Recreation Departments, as well as, representatives from the Delray Beach public schools. Over the years, membership has evolved to include “At Large Representatives” which has provided the opportunity for interested residents to participate in the program. The City Commission directly appoints members to fill the “Citizen At Large Representative” and “At Large Representative” category. The other appointments are made by the various groups involved and presented to the Commission for ratification. The current appointee for ratification is: Organization Represented Adrian Ralkauskas Police Department A check for code violations and/or municipal liens was conducted. None were found. Voter registration verification was completed and he is registered to vote. RECOMMENDATION Recommend ratification of appointment of one (1) representative from the Police Department to serve on the Kids and Cops Committee for an unexpired term ending on November 11, 2013. KIDS AND COPS 11/11 TERM EXPIRES REGULAR MEMBERS ORGANIZATION REPRESENTED 11/30/2013 Ratified 02/07/06 Reappt 11/07/07 Ratified 12/11/07 Reappt 09/02/09 Ratified 11/17/09 Reappt 10/05/11 Ratified 11/01/11 William J. Fay, Jr. (Principal) Banyan Creek Elem. 11/30/2013 Ratified 02/07/06 Reappt 11/07/07 Ratified 12/11/07 Reappt 09/02/09 Ratified 11/17/09 Reappt 10/05/11 Ratified 11/01/11 Yvonne Odom Carver Middle PBC School District 11/30/2013 Unexp Appt 09/06/06 Ratified 11/17/06 Reappt 11/07/07 Ratified 12/11/07 Reappt 09/02/09 Ratified 11/17/09 Reappt 10/05/11 Ratified 11/01/11 Cheryl McKeever Crosspointe Elem. 11/30/2013 Unexp Appt 09/03/08 Ratified 03/17/09 Reappt 09/02/09 Ratified 11/17/09 Reappt 10/05/11 Ratified 11/01/11 Regina Sablo Crosspointe Elem. 11/30/2013 Unexp Appt 09/03/08 Ratified 03/17/09 Reappt 09/02/09 Ratified 11/17/09 Reappt 10/05/11 Ratified 11/01/11 Rona Tata SD Spady Elementary 11/30/2013 Ratified 02/07/06 Reappt 11/07/07 Ratified 12/11/07 Reappt 09/02/09 Ratified 11/17/09 Reappt 10/05/11 Ratified 11/01/11 Danielle Beardsley Parks and Recreation 11/30/2013 Appt 01/03/11 Ratified 05/07/11 Reappt 10/05/11 Ratified 11/01/11 Nicole Guerriero, Chair Police Department 11/30/2013 Unexp Appt 11/02/11 Adrian Ralkauskas Police Department 07/31/2013 Unexp Appt Vacant At Large Representative 07/31/2013 Reappt 02/07/06 Reappt 12/11/07 Reappt 11/17/09 Reappt 08/16/11 Francis Moschette At Large Representative 07/31/2013 Appt 03/03/08 (partial term) Reappt 11/17/09 Reappt 09/06/11 Phyllis Willingham At Large Representative 11/30/2013 Unexp Appt 09/03/08 Ratified 03/17/09 Reappt 09/02/09 Ratified 11/17/09 Reappt 10/05/11 Ratified 11/01/11 Sheila Bethel Pinegrove Elem. 11/30/2013 Appt 10/05/11 Ratified 11/01/11 Sandra Weatherspoon Village Academy 11/30/2013 Unexp Appt 09/03/08 Ratified 03/17/09 Reappt 09/02/09 Ratified 11/17/09 Reappt 10/05/11 Ratified 11/01/11 Angelica Rotondo Orchard View Elem. 07/31/2013 Ratified 02/07/06 Reappt 12/11/07 Reappt 11/17/09 Appt 08/16/11 Cory Cassidy Citizen at Large Representative 11/30/2013 Reappt 09/02/09 Ratified 11/17/09 Reappt 10/05/11 Ratified 11/01/11 Vilguins Louissaint Plumosa Elem. S/City Clerk/Board 11/Kids&Cops MEMORANDUM TO: Mayor and City Commissioners FROM: Linda Karch, Director of Parks and Recreation THROUGH: David T. Harden, City Manager DATE: December 27, 2011 SUBJECT: AGENDA ITEM 8.L. -REGULAR COMMISSION MEETING OF JANUARY 3, 2012 REQUEST TO WAIVE FEES FOR STAFF AND USE OF POMPEY PARK FACILITIES FOR THE MLK HOLIDAY CELEBRATION ITEM BEFORE COMMISSION Request City Commission approval to waive field permit and facility rental fees at Pompey Park for the Dr. Martin Luther King, Jr. Holiday Celebration. BACKGROUND The Dr. Martin Luther King, Jr. Holiday Celebration is an annual event honoring Dr. King for his dedication to the advancement of equality for all Americans. Ms. Lillie Strainge, Chairperson for the MLK Holiday Celebration, is requesting that the fees for use of Pompey Park's facilities and staff support be waived. Ms. Strainge is requesting use of "Teddy's Field", field #1, on Saturday, January 14, 2012, from 8:00 a.m. to 12:00 p.m. for their Track & Field Event. The field permit fee is $231.00 including 6% tax. On Monday, January 16, 2012, Ms. Strainge has requested use of the gym for activities at the end of the Memorial Walk. There will be a guest speaker. The total fee for this rental is $1,110.00 including 6% tax. RECOMMENDATION We recommend that the Dr. Martin Luther King, Jr. Day celebration be viewed as a City event and that the fees be waived. MEMORANDUM TO: Mayor and City Commissioners FROM: Jasmin Allen, Planner Paul Dorling, AICP, Director of Planning and Zoning THROUGH: City Manager DATE: December 28, 2011 SUBJECT: AGENDA ITEM 8.M. -REGULAR COMMISSION MEETING OF JANUARY 3, 2012 REVIEW OF APPEALABLE LAND DEVELOPMENT BOARD ACTIONS ITEM BEFORE COMMISSION The action requested of the City Commission is review of appealable actions which were taken by various Boards during the period of December 12, 2011 through December 30, 2011. BACKGROUND This is the method of informing the City Commission of land use actions, taken by designated Boards, which may be appealed to the City Commission. After this meeting the appeal period shall expire (unless the 10 day appeal period has not occurred). Section 2.4.7(E), Appeals, of the LDRs applies. In summary, it provides that the City Commission hears appeals of actions taken by an approving Board. It also provides that the City Commission may file an appeal. To do so: · The item must be raised by a Commission member. · By motion, action must be taken to place the item on the next Commission meeting agenda as an appealed item. REVIEW BY OTHERS Planning and Zoning Board Meeting of December 19, 2011 No appealable items were considered by the Planning and Zoning Board. The following item which was considered by the Board will be forwarded to the City Commission for action: A. Recommended approval with changes (6 to 0, Clifford Durden absent), of a City-initiated amendment to the Land Development Regulations (LDR), amending Subsection 4.3.3(ZZZ), “Transient Residential Uses”, in order to clarify prohibitions, exemptions/exceptions, waivers, and penalties for same and amending Appendix “A”, “Definitions”, in order to amend the definition of “Transient Residential Uses” Site Plan Review and Appearance Board Meeting of December 14, 2011 1. Approved with conditions (3 to 1, Rustem Kupi dissenting and Shannon Dawson and Nick Sadowsky absent), a request for the addition of three flat wall signs for ABC Carpet and Home, located at 777 South Congress Avenue (east side of Congress Avenue, south of West Atlantic Avenue). The sign packet included installation of a new flat wall sign on the north, south and east elevations and the removal of the existing sign on the west elevation. Concurrently, the Board recommended to the City Commission approval of a waiver to LDR Section 4.6.7(E)(7) to allow two flat wall signs that do not face a dedicated street frontage. 2. Approved with conditions (3 to 1), a request for a color change for Granger’s Restaurant, located at the northeast corner of NE 6th Avenue and NE 2nd Street (215 NE 6th Avenue). 3. Approved with conditions (4 to 0), a Class I site plan associated with architectural elevation changes involving installation of an awning, exterior light fixture and a sliding glass door for 270 East Atlantic Avenue, located on the south side of East Atlantic Avenue, east of SE 2nd Avenue. 4. Approved with conditions (4 to 0), a Class IV site plan modification, landscape plan and architectural elevation plan associated with the demolition of the Blockbuster building and construction of a 4,423 sq. ft. financial institution known as Chase Bank, located within the Delray Town Center at the northeast corner of Linton Boulevard and Military Trail. Concurrently, the Board approved a waiver to LDR Section 4.4.12(F)(2) to reduce the required minimum free standing building area from 6,000 square feet to 4,423 square feet. RECOMMENDATION By motion, receive and file this report. Attachment: Location Map MEMORANDUM TO: Mayor and City Commissioners FROM: Clayton Gilbert, Building Maintenance Superintendent Richard Hasko, P.E., Environmental Services Director THROUGH: David T. Harden, City Manager DATE: December 13, 2011 SUBJECT: AGENDA ITEM 8.N.1 -REGULAR COMMISSION MEETING OF JANUARY 3, 2012 PURCHASE AWARD/MUNICIPAL LIGHTING SYSTEMS ITEM BEFORE COMMISSION This item is before the Commission to approve a Purchase Award to Municipal Lighting Systems in the amount of $83,160 for the purchase of sixty (60) LED light fixtures that are Buy America Compliant to install on the decorative street light poles along West Atlantic Avenue. BACKGROUND The decorative street light poles along West Atlantic Avenue between Swinton and NE/SE 6th Avenue currently are using a light fixture with a 175 watt metal halide lamp; the proposed fixture will utilize a 90 watt LED light source, providing electrical savings in excess of 40%. Purchase of the LED fixtures is being funded by the Energy Efficiency and Conservation Block Grant (EECBG) which also provides funding for the light fixture retrofits in City facilities and the Pompey Park sports lighting replacement. The EECBG is a grant through the American Recovery and Reinvestment Act (ARRA) which requires Buy America Compliant products in most cases. LUMEC was selected as an exclusive supplier of the LED fixtures based on the historic performance of other LUMEC fixtures within the City which have provided a higher quality and lower maintenance lighting product. In addition, there are currently LUMEC LED fixtures in service within the City. Maintaining a single reliable type of fixture enhances maintenance efficiencies and reduces response time for addressing repairs. FUNDING SOURCE Funding is available from expenditure account number 101-6352-519-46.95 -EECBG City Lighting Improvements -West Atlantic Avenue Street Lights. RECOMMENDATION Public Works recommends approval of the Purchase Award to Municipal Lighting Systems in the amount of $83,160 for the purchase of sixty (60) LED light fixtures. MEMORANDUM TO: Mayor and City Commissioners FROM: Paul Dorling, AICP, Director of Planning and Zoning THROUGH: City Manager DATE: December 14, 2011 SUBJECT: AGENDA ITEM 9.A. -REGULAR COMMISSION MEETING OF JANUARY 3, 2012 APPEAL OF ADMINISTRATIVE INTERPRETATION/BOSTON'S RESTAURANT ITEM BEFORE COMMISSION The item before Commission is an appeal of the Planning and Zoning Director’s interpretation that a conditional use approval is required for the outside entertainment (platform deck) for Boston’s Restaurant Phase II expansion. BACKGROUND On November 9, 2011, the Site Plan Review and Appearance Board approved a Class V site plan (Phase 2) associated with provision of additional on-site parking, construction of three (3) new accessory structures for storage and men and women’s restrooms, construction of a new outdoor bar, platform deck, lobster cooker hut and outdoor seating and dining areas on property previously occupied by Bermuda Inn (south of existing Boston’s Restaurant). These improvements include an outside entertainment stage (platform deck) that will provide opportunities for outside entertainment. On December 5, 2011, Attorney Alan J. Ciklin Esq. of Casey, Ciklin, Lubitz, Martens & O'Connell law firm located in West Palm Beach, Florida, filed an appeal of the Planning & Zoning Department Director’s Interpretation that the Land Development Regulations require a conditional use for the outside entertainment (platform deck) proposed for Boston’s Restaurant expansion area. This requirement was initially identified as a condition of approval and referenced in the staff report. While SPRAB removed it as a condition of approval, it is staff’s position that this LDR requirement continues to apply. The applicant disagrees with this interpretation, which is the subject of the appeal. The determination that a conditional use approval is required is consistent with how this type of outdoor entertainment venue has been handled in the past. The only legally established outside venue of this type is the approval received as part of the redevelopment of Block 85 formally known as Grove Square. This outside stage area was approved in conjunction with City Limits restaurant (currently known as IL Bacio) as a Conditional use pursuant to LDR Section 4.6.6(A)(2) [attached] which states that, “Certain conditional uses that are allowed within commercial, industrial and mixed use districts can be characterized as outside uses. Such operations may be conducted outside when specifically determined through the conditional use process that the outside aspects of the use are appropriate. Conditions may be applied to mitigate visual and other impacts”. Pursuant to LDR Section 4.6.6(A) (1), all commercial and industrial uses are to be conducted within a completely enclosed building, rather than outside, regardless of zoning district. However, certain aspects of a use may be conducted outside and these are identified in LDR Section 4.6.6(B). This section has several categories (including outside dining), but does not include outside entertainment. However, it does include a catch-all reference to “activities associated with outside conditional uses pursuant to 4.6.6(A)(2)“, which would include uses not specifically listed including outdoor entertainment. While the applicant may argue that the outside entertainment is an accessory use to the restaurant, such use is not listed as an accessory use in LDR Section 4.4.13 (C) (accessory uses allowed in the CBD). Further, to assume that all restaurant uses may include accessory outside entertainment would set a dangerous precedent. APPEAL While SPRAB removed the conditional use requirement for the outside entertainment (platform deck) as a condition of approval, it is staff’s position that the conditional use approval is still required (not under Section 4.4.13 (D) (9), as referenced in the original staff report, but under Section 4.6.6 [outside uses]). The applicant disagrees with this interpretation (under either LDR section), and this is the subject of the appeal. The appeal of the Director’s interpretation of LDR Section 4.4.13.(D) (9), lists the following grounds for overturning the Planning & Zoning Director’s interpretation: The reason for SPRAB’s elimination of this condition is that they believed, as does the appellant/property owner, that this section does not apply to accessory entertainment provided at Boston’s. In the CBD District, restaurants, outdoor cafés, and cocktail lounges are permitted uses. However playhouses, dinner theaters, and places of assembly for commercial entertainment purposes (e.g., concerts, live performances) require conditional uses. Boston’s Restaurant does not fall within the categories outlined above, thus the appellant/property owner requests that this condition be stricken from the approval as not being applicable. In closing, the appellant proclaims that providing music at a restaurant is similar to other establishments on Atlantic Avenue which presumably are permitted without conditional use approval. The accessory music that will be provided at Boston’s Restaurant is not a “playhouse”, “dinner theater”, or “place[s] of assembly for commercial entertainment purposes”. It is clear to the appellant/property owner and to SPRAB that this conditional use requirement meant what it said and it does not apply to accessory music at a restaurant similar to other establishments on Atlantic Avenue. While staff would agree that the initially referenced LDR section may not apply to this outdoor entertainment function, a conditional use approval would still be required to comply with the above referenced LDR Section (4.6.6) relating to outside uses. At the last Commission meeting Mr. Ciklin stated that he and his client would attempt to work out a resolution to the conflict with the neighboring property owner over this issue. We have heard nothing from Mr. Ciklin as to whether or not this effort was successful. RECOMMENDATION Deny the appeal and require the applicant to comply with the Land Development Regulations with respect to Section 4.6.6, requiring a conditional use for the outside entertainment function for Boston’s Restaurant. IN THE CITY COMMISSION CHAMBERS OF THE CITY OF DELRAY BEACH, FLORIDA ORDER OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA OF THE APPLICANT’S APPEAL OF THE PLANNING DIRECTOR’S INTERPRETATION REGARDING THE OUTDOOR ENTERTAINMENT FUNCTION OF PHASE II OF BOSTON’S RESTAURANT 1. This appeal of the Planning Director’s interpretation regarding the outdoor entertainment function of Phase II of Boston’s Restaurant came before the City Commission on January 3, 2012. 2. The City staff, applicant, and other persons have presented documentary evidence and testimony to the City Commission pertaining to the appeal of the Planning Director’s interpretation regarding the outdoor entertainment function of Phase II of Boston’s Restaurant. All of the evidence is part of the record in this case. 3. LDR Sections 4.4.13(D)(9) and 4.6.6. a. Pursuant to LDR Section 4.4.13(D), “Conditional Uses and Structures Allowed” within the Central Business District, Subsection (9): (9) Playhouses, dinner theaters, and places of assembly for commercial entertainment purposes (e.g., concerts, live performances). b. Pursuant to LDR Section 4.6.6, “Commercial and Industrial Uses to Operate within a Building”, Subsections (A), “Intent” and (B) “Allowable Outside Usage”: Section 4.6.6 Commercial and Industrial Uses to Operate Within a Building: (A) Intent: (1) All commercial and industrial uses shall conduct within a completely enclosed building rather than outside regardless of the zoning district. However, certain aspects of a use may be conducted outside and such aspects are identified in (B) below. 2 (2) Certain conditional uses that are allowed within commercial, industrial, and mixed use districts can be characterized as outside uses. Such operations may be conducted outside when it is specifically determined through the conditional use process that the outside aspects of the use are appropriate. Conditions may be applied to mitigate visual and other impacts. (3) Commercial and industrial uses may be allowed outside on a temporary basis for special events pursuant to Section 2.4.6(F). (B) Allowable Outside Usage: The following aspects of a use may be conducted outside, pursuant to the restrictions listed in Section 4.6.6(C) below. (1) Off-street parking (2) Refuse and service areas (3) Storage of nursery plants (4) Fruit and vegetable displays (5) Signage (6) Outside dining areas (7) Loading and unloading of materials (8) Outside storage where specifically permitted within a zoning district (9) Activities associated with outside conditional uses, pursuant to (A)(2) above (10) Retail displays Is a conditional use required per LDR Sections 4.4.13(D) and/or 4.6.6 for the outdoor entertainment function at Boston’s Restaurant? Yes ______ No______ 5. The City Commission has applied the Comprehensive Plan and LDR requirements in existence at the time the original site plan was submitted. 6. The City Commission finds there is ample and competent substantial evidence to support its findings in the record submitted and adopts the facts contained 3 in the record including but not limited to the staff reports, testimony of experts and other competent witnesses which supports the findings set forth in this Order. 7. Based on the entire record before it, the City Commission approves ____ denies ____ the applicant’s appeal of the Planning Director’s interpretation regarding the outdoor entertainment function of Phase II of Boston’s Restaurant and hereby adopts this Order this _3rd___ day of January, 2012, by a vote of _____ in favor and _____ opposed. ________________________________ Nelson S. McDuffie, Mayor ATTEST: ________________________________ Chevelle Nubin City Clerk 4 MEMORANDUM TO: Mayor and City Commissioners FROM: R. Brian Shutt, City Attorney DATE: December 29, 2011 SUBJECT: AGENDA ITEM 9.B. -REGULAR COMMISSION MEETING OF JANUARY 3, 2012 AMENDMENT NO. 1 TO THE AGREEMENT BETWEEN THE CITY AND PLAYERS INTERNATIONAL MANAGEMENT, INC. ITEM BEFORE COMMISSION The attached amendment between the City and Players International Management, Inc. (PIM) provides for an extension of the term of the Agreement as well as a modification on when the events may be held. BACKGROUND The City entered into an Agreement with PIM on March 6, 2007 whereby PIM agrees to hold (at a minimum) 4 USTA junior tennis tournaments at the City’s Tennis Center. (Currently eight or nine events are being held each year, and we expect that will continue.) The current agreement will expire on September 30, 2012 and provides that it may be renewed for two additional five year terms upon the mutual consent of the parties. PIM is requesting the Agreement be amended to provide that the Agreement be extended for a nine year period, starting on October 1, 2012 and to provide for one nine year renewal term. This will make the PIM agreement run concurrently wiht the ITC agreement. The current Agreement provides for an increase in the amount paid by the City each year based upon the increase in the CPI. That language would remain the same. PIM has also requested that the Agreement be modified to provide that events may be held between April to October, rather than listing each month that an event may be held. Holding the events during these months brings people to the City during the off season to fill hotel rooms and patronize our businesses. RECOMMENDATION Commission discretion. 1 AMENDMENT NO. 1 TO THE AGREEMENT BETWEEN THE CITY AND PLAYERS INTERNATIONAL MANAGEMENT, INC. DATED MARCH 6, 2007 THIS AMENDMENT NO. 1 to the Agreement with PLAYERS INTERNATIONAL MANAGEMENT, INC. is made this _______ day of __________________, 2012, by and between the CITY OF DELRAY BEACH, a Florida municipal corporation (the “City”), and PLAYERS INTERNATIONAL MANAGEMENT, INC., (“PIM”). W I T N E S S E T H : WHEREAS, the City and PIM desire to amend the Agreement to modify the existing term and renewal term and the period in which events may be held. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree as follows: 1. The term is hereby amended to provide that this Agreement is extended for a period of nine (9) years beginning October 1, 2012. This Agreement may be extended upon the mutual consent of both parties for one additional nine (9) year term. 2. PIM will hold the Events annually in the months from April to October, in accordance with the terms and conditions of the Agreement. However, PIM shall be required to obtain the consent of the City if a major event is scheduled for the same time period that PIM wishes to hold its event. 3. PIM agrees that any use of the tennis courts or facilities located at the Delray Swim and Tennis Club shall be based upon obtaining the consent of the City prior to such use and such consent may be withheld by the City, in its sole and absolute discretion. 2 4. Applicability. All other terms of the original Agreement and amendments thereto remain in full force and effect, except as expressly modified herein. 5. Effective Date. This Amendment shall not be effective until it is approved by the City Commission and signed by both of the parties to this Agreement. IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1 to be executed this _____ day of _______________, 2012. ATTEST: CITY OF DELRAY BEACH, FLORIDA _____________________________ By: __________________________ City Clerk Nelson S. McDuffie, Mayor Approved as to form: _____________________________ City Attorney WITNESSES: PLAYERS INTERNATIONAL MANAGEMENT, INC. _____________________________ By: __________________________ _____________________________ __________________________ (Name printed or typed) (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 _____________________, 2012 by ___________________________ (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 MEMORANDUM TO: Mayor and City Commissioners FROM: Robert A. Barcinski, Assistant City Manager THROUGH: David T. Harden, City Manager DATE: December 22, 2011 SUBJECT: AGENDA ITEM 9.C. -REGULAR COMMISSION MEETING OF JANUARY 3, 2012 SPECIAL EVENT REQUEST /VIVA SOUTH FLORIDA ITEM BEFORE COMMISSION Commission is requested to approve a new event “VIVA South Florida” produced by Pegasus Entertainment proposed to be held on the grounds of Old School Square and Old School Square Park on September 14-15, 2012 from noon to 11:00 p.m., and September 16, 2012 from noon to 8:00 p.m. Commission is also requested to approve staff support for traffic control and security, Fire/EMS services, site cleanup and trash removal, electrician assistance, barricading assistance, event signage, trash boxes, use of a City generator and to grant a temporary use permit per LDR’s Section 2.4.6(F) for the use of City rights-of-way to include NE 1st Avenue from the north side of the Old School Square grounds to south of the garage entrance and Swinton from Atlantic to approximately the southernmost driveway entrance to the Crest Theatre. BACKGROUND Attached are a letter, special event permit, site plan, budget and economic calculator received from Mr. Carrillo, CEO Pegasus Entertainment. The proposed event is a Latin American Festival designed to be a kickoff event for Hispanic Heritage month. The West Palm Beach Hispanic Chamber of Commerce is supporting this event. Delray Beach has been selected as the preferred site in Palm Beach County in order to draw from a larger Hispanic population to the south of us. The event producer will be responsible for event management, programming, vendor selection and site fencing. Staff support is requested as noted above. We received a request for the event for last year but the event producer could not get the support agreement in time from the Hispanic Chamber of Commerce of Palm Beach County, nor could the event producer get all of the approvals needed. The estimated staff overtime costs is $22,700, trash boxes $400, and signage $250 for a total cost of $23,350. The event producer is required to pay 100% of City costs. At this time there are no other major events proposed for September 2012. RECOMMENDATION Staff recommends consideration of approval for the “VIVA South Florida” event proposed for September 14, 15, and 16, 2012, the temporary use permit for use of a portion of Swinton Avenue and NE 1st Avenue as indicated, staff support as requested, signage, trash boxes and use of a generator with the following conditions: 1. Site plan be approved as amended by staff. 2. The City is to be provided with a Certificate of Liability Insurance from the amusement ride operator ten (10) days prior to the event. 3. The City is to be provided with a copy of the State Inspection Certificate for amusement rides prior to operating any such rides. 4. Reserved parking in the Old School Square garage is limited to 70 spaces. 5. Tents cannot be staked in the ground. Barrels or concrete blocks to be used. 6. The event producer must provide City staff an electrical and water use plan at least two (2) weeks prior to the event. 7. No vehicles will be allowed to drive on the grass area of Old School Square Park site. Walkways only to be used for this purpose. 8. Event sponsor to provide onsite dumpster and grease disposal equipment. 9. Signage and banners to be installed no earlier than September 1, 2012. 10.The City is to be provided with copies of executed rental agreements for the Old School Square Park and Old School Square grounds with fees and security deposits paid by August 15, 2012. 11.A security deposit is to be paid to the City by August 15, 2012, in the amount of $3,000, which will be credited against event costs. MEMORANDUM TO: Mayor and City Commissioners FROM: Randal L. Krejcarek, P.E., City Engineer Richard C. Hasko, P.E., Environmental Services Director THROUGH: David T. Harden, City Manager DATE: December 19, 2011 SUBJECT: AGENDA ITEM 9.D. -REGULAR COMMISSION MEETING OF JANUARY 3, 2012 RFQ FOR ARCHITECTURAL CONSULTING SERVICES/CAPITAL IMPROVEMENT PROJECTS (CIP) ITEM BEFORE COMMISSION This item is before the Commission for approval of the Architectural Consulting Services RFQ (RFQ# 2012-05) responses short list and authorization to negotiate contracts with each of the five companies on the short list. Project #12-056. BACKGROUND On October 2, 2011, a Request for Qualifications was issued for Architectural Consulting companies for capital improvement projects contained in the city’s Capital Improvement Program (CIP). Eighteen (18) Architectural companies responded and were reviewed by the selection committee. Based on the number of projects in the CIP the selection committee agreed that five firms should be selected. The committee unanimously agreed on the following five (5) companies: Currie Sowards Aguila Architects, Walters Zackria & Associates, Inc., David Miller and Associates, Slattery & Associates and Bridges Marsh and Associates. Final respondent rankings are based on a weighted total of all raters’ individual rankings. Rankings based on totaling raw point scores are used solely for tie breaking. Note that Bridges Marsh & Associates is ranked #5 overall, however, comparing total raw point scores, they would be ranked #11. This is due to one of the five rating committee members scoring them significantly lower than the other raters. While RFQ ranking committees are selected to provide a variety of perspectives on the subject discipline, the evaluation process is designed to ensure that final rankings represent the consensus of evaluators. This RFQ result reflects the validity of the process. After successfully negotiating each contract, the contracts will be brought back to commission for approval to execute. Attached is a copy of the rating sheet for all firms that submitted. RECOMMENDATION Staff recommends approval of the short list and authorization to negotiate contracts with the short listed firms. Printed: 12/16/2011 Sort By Overall Rankings Sort By Point Totals Currie Sowards Aguila Architects 1 1 Currie Sowards Aguila Architects Walters Zackria Assoc 2 2 Walters Zackria Assoc David R Miller & Associates 3 3 David R Miller & Associates Slattery and Assoc 4 4 Slattery and Assoc Bridges Marsh & Associates, Inc. 5 5 REG Architects Interiors Planners Corzo Castella Carballo Thompson 6 6 Harvard Jolly Architecture REG Architects Interiors Planners 6 7 Corzo Castella Carballo Thompson Bermelio Ajamil & Partners 8 8 ACAI Associates, Inc. Harvard Jolly Architecture 9 8 Aecom Technical Services Aecom Technical Services 10 10 Bermelio Ajamil & Partners ACAI Associates, Inc. 11 11 Bridges Marsh & Associates, Inc. West Architecture & Design, LLC 12 12 CPZ Architects CPZ Architects 13 13 Saltz Michelson Saltz Michelson 14 14 West Architecture & Design, LLC Alexis Knight Architects, Inc. 15 15 KZF Design Robling Architecture 16 16 Robling Architecture KZF Design 17 17 Alexis Knight Architects, Inc. Richard Jones 18 18 Richard Jones Architecture RFQ S:\EngAdmin\Projects\2012\12-056\OFFICIAL\Architecture RFQ_-Official results Printed: 12/29/2011 Architecture RFQ Individual Score By Rank Weighted Overall Overall Total Individual Score By Points Firm Grieve Costello Majtenyi Ballestero Krejcarek Score Rank Rank Points Grieve Costello Majtenyi Ballestero Krejcarek ACAI Associates, Inc. 10 4 15 8 11 47 11 8 347 71 84 64 77 51 Aecom Technical Services 14 8 10 7 6 50 10 8 347 64 81 68 78 56 Alexis Knight Architects, Inc. 8 8 17 16 17 29 15 17 294 76 81 47 50 40 Bermelio Ajamil & Partners 15 6 6 10 6 52 8 10 342 60 82 72 72 56 Bridges Marsh & Associates, Inc. 4 8 3 18 8 54 5 11 339 85 81 74 44 55 Corzo Castella Carballo Thompson 6 14 3 14 5 53 6 7 353 81 80 74 61 57 CPZ Architects 5 8 12 13 16 41 13 12 338 84 81 66 65 42 Currie Sowards Aguila Architects 1 1 2 1 3 87 1 1 426 90 91 75 90 80 David R Miller & Associates 2 18 5 3 1 66 3 3 410 87 76 73 87 87 Harvard Jolly Architecture 12 8 8 4 12 51 9 6 357 70 81 71 85 50 KZF Design 10 16 16 12 15 26 17 15 316 71 77 56 66 46 REG Architects Interiors Planners 7 5 12 5 13 53 6 5 359 78 83 66 83 49 Richard Jones 17 6 18 17 17 20 18 18 246 50 82 31 45 38 Robling Architecture 16 15 12 11 13 28 16 16 314 55 78 66 68 47 Saltz Michelson 9 16 8 15 8 39 14 13 333 74 77 71 58 53 Slattery and Assoc 13 2 6 6 4 64 4 4 378 69 90 72 81 66 Walters Zackria Assoc 3 3 1 2 2 84 2 2 423 86 87 80 89 81 West Architecture & Design, LLC 18 8 11 9 7 42 12 14 323 49 81 67 74 52 C:\Documents and Settings\hasko\Local Settings\Temporary Internet Files\Content.Outlook\0WWJ3R6Y\ Architecture RFQ_-Official results.xls City of Delray Beach General Architectural Consulting Services Page 4 of 37 III. EVALUATION AND SCORING: Selection will be in accordance with the Consultant‟s Competitive Negotiations Act, as amended, Section 287.055, Florida Statutes. The selection process consists of evaluation and scoring by the Selection Committee. Each category will be scored and when the scores awarded for all categories are totaled, the scores will be tabulated and added to achieve the Total Points and Weighted Score awarded to each firm. Both criteria will be used to rank each firm 1,2,3,4, etc. The ranking of each firm will be tabulated from each Committee Member and combined with other Committee Members to determine the total score and weighted score for the firm. 1. Firm experience in south Florida. 2. Firm‟s personnel qualifications. 3. Firm‟s governmental experience. 4. Firm‟s approach to project management. 5. Firm‟s resources, personnel availability and commitment. Failure to respond to all the items listed above will result in a lower overall score and may hinder your chances of being selected. The Scoring Criteria is made up of the categories above that collectively represent a Grand Total Point Value of 100 points, as described herein. The points indicated below as "Points Possible" are the maximum that can be allocated for each category. The point value shall be the basis of establishing a finalist list of the top ranking RFQ submittals. Firm Experience: The firm will be expected to demonstrate its experience with projects similar to those listed in Exhibit A. Particular attention should be given to projects completed with other local government agencies. This information must be included on SF 330. Firm‟s Personnel Qualifications: The firm shall name the actual Project Manager assigned to the City and other key staff to be assigned to projects, describe their ability and experience and indicate the function of each individual within the organization and their proposed role on City projects. This information must be included on SF 330 Firm‟s Governmental Experience: The firm shall detail experience with other governmental agencies. This information must be included on SF 330 Firm‟s Approach to Project Management: The firm shall detail approach to be utilized in managing projects including, but not limited to, coordination with other governmental agencies and coordination with other utility companies. City of Delray Beach General Architectural Consulting Services Page 5 of 37 Firm‟s Resources, Personnel Availability and Commitment: The firm shall demonstrate a commitment to completing project on time and within budget. Firm must also demonstrate flexibility to complete projects per client‟s specifications. EVALUATION CATEGORIES POINTS POSSIBLE 1. Firm experience in south Florida 25 2. Firm‟s personnel qualifications 30 3. Firm‟s governmental experience 20 4. Firm‟s approach to project management 15 5. Firm‟s resources, personnel availability and commitment 10 GRAND TOTAL OF POINTS 100 POINTS If you have any questions concerning the Qualification Package or these instructions, please submit your questions in writing or email only to Randal L. Krejcarek, P.E., City Engineer, 434 South Swinton Avenue, City of Delray Beach, Florida, 33444. Fax number (561) 243-7314. Email krejcarek@MyDelrayBeach.com IV. AWARD OF CONTRACT Based on final rankings resulting from the above described process, the Selection Committee will make a recommendation to the City Commission for the award of the contract to a minimum of three firms. The City intends to initially award two (2) year contracts with an option to renew annually for three (3) additional years, up to a total of five (5) years (2 year contract plus 3 one year renewals). MEMORANDUM TO: Mayor and City Commissioners FROM: R. BRIAN SHUTT, CITY ATTORNEY DATE: December 30, 2011 SUBJECT: AGENDA ITEM 9.E. -REGULAR COMMISSION MEETING OF JANUARY 3, 2012 APPOINTMENT OF OUTSIDE COUNSEL TO ASSIST IN REVIEW OF THE ORDINANCE REGARDING TRANSIENT HOUSING ITEM BEFORE COMMISSION Approval of the appointment of outside counsel to assist the City Attorney’s Office in the drafting, review and defense of ordinances concerning transient residential use as well as reasonable accommodation procedures. BACKGROUND The City Attorney’s Office has been directed to update its ordinances regarding transient residential use and reasonable accommodation procedures. In the past the City has used the firm of Weiss Serota at the rate of $215.00 per hour. The Weiss Serota firm has had prior experience in dealing with these issues when they defended the City of Boca Raton. The law firm of Patton Boggs is a national firm and has proposed to assist the City in this matter. While this firm may not have the prior experience in dealing with this issue or the local knowledge as it relates to local and state law, they do appear to have the ability to address this issue on a more national level. I have attached their proposed fee structure. While we feel both of these firms are qualified to assist our office in this matter, direction is requested on the approach the Commission wishes to take on this issue The City Attorney’s Office has been directed to update our ordinances regarding transient residential use and reasonable accommodation procedures. In the past the City has used the firm of Weiss Serota at the rate of $215.00 per hour. The Weiss Serota firm has had prior experience in dealing with these issues when they defended the City of Boca Raton. RECOMMENDATION Commission discretion. MEMORANDUM TO: Mayor and City Commissioners FROM: Catherine M. Kozol, Esq., Assistant City Attorney/Police Legal Advisor THROUGH: City Attorney DATE: December 19, 2011 SUBJECT: AGENDA ITEM 9.F. -REGULAR COMMISSION MEETING OF JANUARY 3, 2012 OFFER OF SETTLEMENT IN PATRICIA MILEY V. CITY OF DELRAY BEACH ITEM BEFORE COMMISSION This is a demand from the plaintiff, Patricia Miley, for $9.5 million dollars. BACKGROUND This case originated from an automobile accident on March 11, 2009 where the plaintiff's vehicle and Officer Brown's vehicle collided in an intersection after passing through a yellow flashing signal and a red flashing signal respectively. Ms. Miley sustained injuries of a broken pelvis, several fractured ribs, a broken ankle and a laceration on her forehead. To date, the total medical bills are $364,945.06. RECOMMENDATION The City Adjuster and the City Attorney's Office recommend denial of this demand. MEMORANDUM TO: Mayor and City Commissioners FROM: Catherine M. Kozol, Assistant City Attorney/Police Legal Advisor THROUGH: City Attorney DATE: December 19, 2011 SUBJECT: AGENDA ITEM 9.G. -REGULAR COMMISSION MEETING OF JANUARY 3, 2012 APPOINTMENT OF OUTSIDE COUNSEL FOR PATRICIA MILEY V. CITY OF DELRAY BEACH ITEM BEFORE COMMISSION This is a request to hire outside counsel in the case of Patricia Miley v. City of Delray Beach. BACKGROUND Our office recommends that we retain Kent Pratt, Esq. at a rate of $140.00 per hour to act as outside trial counsel in the case of Patricia Miley v. City of Delray Beach due to the serious nature of the allegations involved. RECOMMENDATION The City Attorney's Office recommends approval. MEMORANDUM TO: Mayor and City Commissioners FROM: R. BRIAN SHUTT, CITY ATTORNEY DATE: December 20, 2011 SUBJECT: AGENDA ITEM 9.H. -REGULAR COMMISSION MEETING OF JANUARY 3, 2012 OFFER OF SETTLEMENT IN ANDREA WALLACE ET, AL V. CITY OF DELRAY BEACH ITEM BEFORE COMMISSION Plaintiffs' offer to settle the case of Andrea Wallace, et al. v. City of Delray Beach. BACKGROUND The case stems from an incident that occurred on June 6, 2010 when a group of children who were in the City’s summer recreation program went on a field trip to Fun Depot in Lake Worth. When the group arrived, all the children exited the van except for Le’Marcus Bonner, who had fallen asleep. Once they arrived inside the building, a count was taken of the children and it was discovered that he was not with the group. As one of the recreational leaders was leaving the building to look for him, a leader from another summer group was bringing him inside. The Plaintiffs allege that the City’s negligence has caused Le’Marcus to suffer a fear of sleeping in vehicles, anxiety and difficulty performing certain tasks. The Plaintiffs are offering to settle the case for $40,000.00. RECOMMENDATION The City Attorney’s Office recommends denial of Plaintiffs’ offer. MEMORANDUM TO: Mayor and City Commissioners FROM: David T. Harden, City Manager DATE: December 22, 2011 SUBJECT: AGENDA ITEM 9.I. -REGULAR COMMISSION MEETING OF JANUARY 3, 2012 APPOINTMENTS TO THE CODE ENFORCEMENT BOARD ITEM BEFORE COMMISSION This item is before the City Commission for appointments to the Code Enforcement Board. BACKGROUND The terms for regular members Mr. Robert Marks, Mr. Kurt Lehmann and Mr. David Boone will expire on January 14, 2012. Mr. Marks will have served two full terms and is not eligible for reappointment. Mr. Lehmann and Mr. Boone will have served unexpired terms, are eligible and would like to be considered for reappointment. Please note that Ms. Stephanie Sugar is an alternate member and would like to be considered for regular membership. Appointments are needed for three (3) regular members. All members of the Code Enforcement Board must be residents of the City. Appointments to both regular and alternate member positions shall be on the basis of experience or interest in the fields of zoning and building control. The regular and alternate membership of the Board shall, whenever possible, include an architect, a business person, an engineer, a general contractor, a subcontractor and a realtor. The following individuals have submitted applications 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 appointments will be made by Commissioner Frankel (Seat #3), Commissioner Gray (Seat #4) and Mayor McDuffie (Seat #5) for three (3) regular members to serve three (3) year terms ending January 14, 2015. RECOMMENDATION Recommend appointment of three (3) regular members to serve on the Code Enforcement Board for three (3) year terms ending January 14, 2015. 10/11 CODE ENFORCEMENT BOARD TERM EXPIRES REGULAR MEMBERS OCCUPATION POSITION FILLING 01/14/2013 Unexp Appt 4/21/11 Jason Dollard Attorney Layperson 01/14/2013 unexp Appt 09/05/06 Reappt 01/02/07 Reg Reappt 01/05/10 Stanley Brodka, Vice Chair Financial Services Layperson 01/14/2014 Appt 01/03/08 reg Unexp Appt 10/2/07 alt Reappt 01/04/11 Kelli Freeman Staffing Manager Business Person 01/14/2013 Unexp Appt 09/06/11 Ronald Gilinsky Sales/Marketing Layperson 01/14/2012 Unexp Alt Appt 01/07/03 Unexp Reg Appt 04/15/03 Reappt 02/07/06 Reappt 01/06/09 Robert Marks, Chair Construction General Contractor 01/14/2012 Unexp Appt 07/05/11 Unexp Appt 05/17/11 alt Kurt Lehmann Realtor Realtor 01/14/2012 Unexp Appt 03/01/11 David Boone Attorney/Educator Layperson ALTERNATES 01/14/2013 Unexp Appt 08/02/11 Robert Wells Retired Layperson 01/14/2013 Unexp Appt 11/01/11 Stephanie Sugar Regional Director Business Person Contact: Danise Cleckley 243-7213 S/City Clerk/Board 11/Code Enforcement Board CODE ENFORCEMENT BOARD EXHIBIT “A” Name Background Mark Behar Self Employed – Investor David Boone Attorney/Educator Incumbent Kurt Lehmann Realtor Incumbent Stephanie Sugar Regional Director Incumbent Jason Whiteman Attorney MEMORANDUM TO: Mayor and City Commissioners FROM: David T. Harden, City Manager DATE: December 22, 2011 SUBJECT: AGENDA ITEM 9.J. -REGULAR COMMISSION MEETING OF JANUARY 3, 2012 APPOINTMENT TO THE EDUCATION BOARD ITEM BEFORE COMMISSION This item is before the City Commission for an appointment to the Education Board. BACKGROUND There is a vacancy on the Education Board for a regular member; Ms. Sharon Schwartz is being removed due to missing three (3) consecutive meetings. An appointment is needed for one (1) regular member to serve an unexpired ending July 31, 2013. Members of the Education Board must be a resident of 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 persons with a background in business, real estate and/or education. The following individuals have submitted applications 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 with the exception of Mr. John Pasqual. Based on the rotation system, the appointment will be made by Commissioner Carney (Seat #1) for one (1) regular member to serve an unexpired term ending July 31, 2013. RECOMMENDATION Recommend appointment of one (1) regular member to serve on the Education Board for an unexpired term ending July 31, 2013. 12/11 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 12/06/11 Julia Kadel Director of Admissions 07/31/2013 Unexp Appt Vacant 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: EDUCATION BOARD EXHIBIT A Mary-Elizabeth Cohn Education/Sales & Consultant (also applying for the Site Plan Review & Appearance Board) Claudia Flores Banking-Assistant Vice President Mary Leavenworth Director/Educator Sandra Owens Educator John Pasqual Surgeon Kevin Warner Educator (currently serving on the Police Advisory Board) MEMORANDUM TO: Mayor and City Commissioners FROM: David T. Harden, City Manager DATE: December 22, 2011 SUBJECT: AGENDA ITEM 9.K. -REGULAR COMMISSION MEETING OF JANUARY 3, 2012 APPOINTMENTS TO THE FINANCIAL REVIEW BOARD ITEM BEFORE COMMISSION This item is before the City Commision for appointments to the Financial Review Board. BACKGROUND There are three (3) vacancies on the Financial Review Board due to the resignations of regular member Ms. Rosalie Blood and alternate member Ms. Sharon Roth and the appointment of alternate member Mr. David Stein as a regular member at the November 1, 2011 City Commission meeting. The terms are unexpired ending July 31, 2012, and July 31, 2013. Since there are only two (2) applicants at this time, appointments are needed for one (1) regular member and one (1) alternate member. Please note that Mr. Warren Trilling only wishes to be considered for regular membership. On October 6, 2009, the Delray Beach City Commission adopted Resolution No. 55-09 establishing the Budget Review Committee to review the City’s budget, systems and procedures, technology improvements, or related materials and concepts and make recommendations regarding revenues, salaries and benefits, operating expenses, debt service expenses, capital outlay, grants to other entities and transfers to other funds or any other items that may favorably impact the City’s budget and overall financial condition. The Commission later adopted Resolution No. 58-09 which renamed the committee as the Financial Review Board with the expanded responsibilities of analysis of revenues and expenses and business practices and processes. Resolution No. 05-11 provided further amendments to clarify that the Board’s duties shall fall under the direction of the City Manager or the City Commission and to restrict the membership of the Board. The Financial Review Board shall consist of nine (9) members. Five (5) seats on the Board must be filled with a certified public accountant, accounting professional, finance professional, certified financial planner, investment advisor, insurance professional (property/casualty or health), business owner/manager/officer and someone with an MBA or MPA degree. The remaining four (4) members may be at large. The following individuals have submitted applications 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 appointments will be made by Commissioner Gray (Seat #4) for one (1) regular member to serve an unexpired term ending July 31, 2012 and Mayor McDuffie (Seat #5) for one (1) alternate member to serve an unexpired term ending on July 31, 2013. RECOMMENDATION Recommend appointment of one (1) regular member to serve on the Financial Review Board for an unexpired term ending July 31, 2012, and one (1) alternate member to serve an unexpired term ending on July 31, 2013. FINANCIAL REVIEW BOARD 11/11 TERM EXPIRES REGULAR MEMBERS OCCUPATION 07/31/12 Unexp Appt 08/02/11 reg Appt 06/21/11 alt Anthony Cottone Business Owner/Finance 07/31/12 Unexp Appt 11/01/11 David Stein Business Owner 07/31/13 Unexp Appt 04/05/11 Reappt 06/21/11 John Hallahan Assistant Director of Operations/Retired 07/31/12 Unexp Appt Vacant 07/31/13 Appt 11/03/09 Reappt 6/21/11 Christina Morrison, Chair Realtor 07/31/13 Unexp Appt 04/05/11 Reappt 06/21/11 Jeff Ritter Management Consulting Professor 07/31/12 Appt 07/20/10 Luise Piane Executive Management ALTERNATES 07/31/13 Unexp Appt Vacant 07/31/13 Unexp Appt Vacant Contact: Barbara Flynn X-7115 S/City Clerk/Board 12/Financial Review Board FINANCIAL REVIEW BOARD EXHIBIT A Applicants with experience in the professions required: Warren Trilling Certified Public Accountant/Retired (wishes to only be considered for regular membership) Brian Wood Director/Senior Manager-Finance MEMORANDUM TO: Mayor and City Commissioners FROM: David T. Harden, City Manager DATE: December 22, 2011 SUBJECT: AGENDA ITEM 9.L. -REGULAR COMMISSION MEETING OF JANUARY 3, 2012 APPOINTMENT TO THE KIDS AND COPS COMMITTEE ITEM BEFORE COMMISSION This item is before the City Commission for an appointment to the Kids & Cops Committee. BACKGROUND There is a vacancy on the Kids and Cops Committee due to the resignation of Mr. Kenneth Zeno. An appointment is needed for one (1) At Large Representative to serve an unexpired term ending July 31, 2013 The Kids and Cops Committee was established as an advisory board to the City Commission in May, 1994 with the adoption of Ordinance No. 20-94. Its primary goal is to strengthen the relationship between the local youth of our community and members of the Delray Beach Police Department through various programs and activities. It is composed of representatives from the City’s Police and Parks and Recreation Departments, as well as, representatives from the Delray Beach public schools. Over the years, membership has evolved to include “At Large Representatives” which has provided the opportunity for interested residents to participate in the program. The City Commission directly appoints members to fill the “Citizen At Large Representative” and “At Large Representative” category. The other appointments are made by the various groups involved and presented to the Commission for ratification. The following individual has submitted an application and would like to be considered for appointment: Jennifer Aracri A check for code violations and/or municipal liens was conducted. None were found. Voter registration verification was completed and she is registered. Based on the rotation system, the appointment will be made by Commissioner Alperin (Seat #2) for one (1) At Large Representative to serve an unexpired term ending July 31, 2013. RECOMMENDATION Recommend appointment of one (1) At Large Representative to serve on the Kids & Cops Committee for an unexpired term ending July 31, 2013. KIDS AND COPS 11/11 TERM EXPIRES REGULAR MEMBERS ORGANIZATION REPRESENTED 11/30/2013 Ratified 02/07/06 Reappt 11/07/07 Ratified 12/11/07 Reappt 09/02/09 Ratified 11/17/09 Reappt 10/05/11 Ratified 11/01/11 William J. Fay, Jr. (Principal) Banyan Creek Elem. 11/30/2013 Ratified 02/07/06 Reappt 11/07/07 Ratified 12/11/07 Reappt 09/02/09 Ratified 11/17/09 Reappt 10/05/11 Ratified 11/01/11 Yvonne Odom Carver Middle PBC School District 11/30/2013 Unexp Appt 09/06/06 Ratified 11/17/06 Reappt 11/07/07 Ratified 12/11/07 Reappt 09/02/09 Ratified 11/17/09 Reappt 10/05/11 Ratified 11/01/11 Cheryl McKeever Crosspointe Elem. 11/30/2013 Unexp Appt 09/03/08 Ratified 03/17/09 Reappt 09/02/09 Ratified 11/17/09 Reappt 10/05/11 Ratified 11/01/11 Regina Sablo Crosspointe Elem. 11/30/2013 Unexp Appt 09/03/08 Ratified 03/17/09 Reappt 09/02/09 Ratified 11/17/09 Reappt 10/05/11 Ratified 11/01/11 Rona Tata SD Spady Elementary 11/30/2013 Ratified 02/07/06 Reappt 11/07/07 Ratified 12/11/07 Reappt 09/02/09 Ratified 11/17/09 Reappt 10/05/11 Ratified 11/01/11 Danielle Beardsley Parks and Recreation 11/30/2013 Appt 01/03/11 Ratified 05/07/11 Reappt 10/05/11 Ratified 11/01/11 Nicole Guerriero, Chair Police Department 11/30/2013 Unexp Appt 11/02/11 Adrian Ralkauskas Police Department 07/31/2013 Unexp Appt Vacant At Large Representative 07/31/2013 Reappt 02/07/06 Reappt 12/11/07 Reappt 11/17/09 Reappt 08/16/11 Francis Moschette At Large Representative 07/31/2013 Appt 03/03/08 (partial term) Reappt 11/17/09 Reappt 09/06/11 Phyllis Willingham At Large Representative 11/30/2013 Unexp Appt 09/03/08 Ratified 03/17/09 Reappt 09/02/09 Ratified 11/17/09 Reappt 10/05/11 Ratified 11/01/11 Sheila Bethel Pinegrove Elem. 11/30/2013 Appt 10/05/11 Ratified 11/01/11 Sandra Weatherspoon Village Academy 11/30/2013 Unexp Appt 09/03/08 Ratified 03/17/09 Reappt 09/02/09 Ratified 11/17/09 Reappt 10/05/11 Ratified 11/01/11 Angelica Rotondo Orchard View Elem. 07/31/2013 Ratified 02/07/06 Reappt 12/11/07 Reappt 11/17/09 Appt 08/16/11 Cory Cassidy Citizen at Large Representative 11/30/2013 Reappt 09/02/09 Ratified 11/17/09 Reappt 10/05/11 Ratified 11/01/11 Vilguins Louissaint Plumosa Elem. S/City Clerk/Board 11/Kids&Cops MEMORANDUM TO: Mayor and City Commissioners FROM: David T. Harden, City Manager DATE: December 22, 2011 SUBJECT: AGENDA ITEM 9.M. -REGULAR COMMISSION MEETING OF JANUARY 3, 2012 APPOINTMENT TO THE SITE PLAN REVIEW AND APPEARANCE BOARD ITEM BEFORE COMMISSION This item is before the City Commission for an appointment to the Site Plan Review and Appearance Board. BACKGROUND There is a vacancy on the Site Plan Review and Appearance Board due to the resignation of Mr. Sigurdur Hardester. An appointment is needed for one (1) regular member to serve an unexpired ending August 31, 2013. To qualify for appointment, a person shall either be a resident of, or own property in the City, and/or own a business within the City. In addition, the City Commission shall fill five seats on the Board with an architect, landscape architect, realtor/real estate broker, civil engineer, general contractor, sign contractor, land planner or interior designer. The remaining two seats shall be at large. The Commission shall endeavor to appoint as many disciplines as possible to the board. The following individuals have submitted applications 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 with the exception of Mr. Borrero. Based on the rotation system, the appointment will be made by Commissioner Alperin (Seat #2) for one (1) regular member to serve an unexpired term ending August 31, 2013. RECOMMENDATION Recommend appointment of one (1) regular member to serve on the Site Plan Review and Appearance Board for an unexpired term ending August 31, 2013. SITE PLAN REVIEW AND APPEARANCE BOARD 12/11 TERM EXPIRES REGULAR MEMBERS OCCUPATION 08/31/2012 Unexp Appt 10/03/06 Reappt 08/19/08 Reappt 08/17/10 Shane Ames, Chair Designer/Architect 08/31/2012 Unexp Appt 08/16/11 Shannon Dawson Business Owner-Property Management/Realt or 08/31/2013 Unexp Appt Vacant Citizen-at-Large 08/31/2012 Appt 08/17/10 Rustem Kupi Architect 08/31/2013 Appt 08/19/09 Reappt 08/16/11 Scott Porten General Contractor 08/31/2012 Appt 09/07/10 Roger DeCapito Landscape & Design 08/31/2012 Appt 09/07/10 Nick Sadowsky Portfolio Manager-Financial Planning Citizen-at-Large Contact: Rebecca Truxell, X-7040 S/City Clerk/Board 11/SPRAB SITE PLAN REVIEW AND APPEARANCE BOARD APPLICANTS EXHIBIT A Applicants with experience in the professions required: Alejandro Borrero Architect-Project Director Jason Bregman Self-employed consultant-Landscape Architecture Mark Gregory Sign Specialist-Sales/Consultant Jerome Sanzone Building Official/General Contractor Chris Stray Landscape Architecture & Design/Interior Design Applicants for At Large Seat: David Beale Business Owner-Attorney Mary-Elizabeth Cohn Educator/Consultant (also applying for the Education Board) Alice Finst Master Gardener/Retired-Educator Frank Frione Consultant-CEO Ronald Furst Retail-Business Owner David Haycock Liability Claims Adjuster (currently serving on the Public Employees Relations Commission) Robert Marks Construction Inspector MEMORANDUM TO: Mayor and City Commissioners FROM: David T. Harden, City Manager DATE: December 9, 2011 SUBJECT: AGENDA ITEM 10.A. -REGULAR COMMISSION MEETING OF JANUARY 3, 2012 ORDINANCE NO. 44-11 ITEM BEFORE COMMISSION This ordinance is before Commission for second reading to 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. BACKGROUND At the first reading on December 6, 2011, the Commission passed Ordinance No. 44-11. 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 by ordinance submit a proposed amendment to the Charter to the electors of the municipality; 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 COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA AS FOLLOWS: Section 1. That Article III, “Legislative”, Section 3.02, “City Commission; Composition, Eligibility, Election and Terms”, be amended to read as follows: Section 3.02. CITY COMMISSION: COMPOSITION, ELIGIBILITY, ELECTION, AND TERMS. (A) Composition and Term. The City Commission shall be composed of five (5) Commissioners, one of whom shall be duly elected Mayor. 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 in odd numbered years. The Mayor may be elected in an even or odd numbered year. Two (2) Commission seats with terms expiring in 2013 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 election 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 prior 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, “Term Limits”, be amended to read as follows: Section 3.09. TERM LIMITS. (A) Term Limit. Individual Commissioners, including the Mayor, shall 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 appointment. Effective for those elected in March of the year 2003 and thereafter, a Commissioner or Mayor 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 only be allowed to serve a total of three (3) consecutive terms, which will include consecutive terms 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 Commissioner or Mayor shall not assume office again until the last Thursday in March of the year following the expiration 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 conducted 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 term 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 commission 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 by authority of this Charter, or of any law, shall be known as special elections. 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 approving or disapproving this ordinance. If a majority of the electors voting upon such a question approve the amendment, then the amendment shall be in full force and effect and shall apply to the election held on March 12, 2013 and all elections thereafter. If a majority of the electors voting upon such question disapprove such amendment(s), then the amendment(s) shall be null and 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 MAYOR) 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 MAYOR 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 electors as aforesaid, all ordinances or Charter provisions or parts of Charter 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 ordinance 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 validity 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 its passage on second and final reading. The Charter Amendment shall take effect (and be applicable to the election) on March 12, 2013, if approved by a majority of the electors as provided in Section 3 hereof. 4 ORD. NO. 44-11 PASSED AND ADOPTED in regular session on second and final reading on this the ____________ day of ________________________, 2012. _____________________________ M A Y O R ATTEST: ____________________________ City Clerk First Reading ______________ Second Reading _____________ 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 charter amendment related to Commission terms. BACKGROUND Pursuant to the direction given by Commission, at its 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 providing that no Commissioner/Mayor who votes on this ordinance shall be allowed to exceed 3 consecutive terms, which includes consecutive terms already served as of the date of the adoption of this Ordinance. This charter amendment would be placed on the ballot for the March 2012 election and, if passed, would be effective starting with the March 2013 election cycle. RECOMMENDATION Commission discretion. Coversheet Page 1 of 1 http://itwebapp/AgendaIntranet/Bluesheet.aspx?ItemID=5163&MeetingID=363 12/9/2011 MEMORANDUM TO: Mayor and City Commissioners FROM: David T. Harden, City Manager DATE: December 14, 2011 SUBJECT: AGENDA ITEM 10.B. -REGULAR COMMISSION MEETING OF JANUARY 3, 2012 ORDINANCE NO. 50-11 ITEM BEFORE COMMISSION This ordinance is before Commission for second reading and public hearing to consider an amendment to Chapter 34, “Elections”, by amending Section 34.16, “Filing of Nominating Petitions”, to modify the number of registered voters required to sign a petition to grant eligibility of a candidate to qualify to run for office. BACKGROUND At the first reading on December 13, 2011, the Commission passed Ordinance No. 50-11. RECOMMENDATION Recommend approval of Ordinance No. 50-11 on second and final reading. ORDINANCE NO. 50-11 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AMENDING CHAPTER 34, “ELECTIONS”, OF THE CODE OF ORDINANCES BY AMENDING SECTION 34.16, “FILING OF NOMINATING PETITIONS”, TO MODIFY THE NUMBER OF REGISTERED VOTERS REQUIRED TO SIGN A PETITION TO GRANT ELIGIBILITY OF A CANDIDATE TO QUALIFY TO RUN FOR OFFICE, PROVIDING A SAVING CLAUSE, A GENERAL REPEALER CLAUSE, AND AN EFFECTIVE DATE. WHEREAS, the City of Delray Beach desires to modify the number of registered voters required to sign a petition to grant eligibility of a candidate to qualify to run for office. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AS FOLLOWS: Section 1. That Chapter 34, “Elections”, of the Code of Ordinances of the City of Delray Beach is amended by amending Section 34.16, “Filing of Nominating Petition”, to read as follows: Sec. 34.16. FILING OF NOMINATING PETITION (A) To qualify as a candidate for election, the candidate must file the documents set forth in subsections (A)(1) and (A)(2). The documents shall be filed with the City Clerk no earlier than noon on the last Tuesday in January nor later than noon on the second Tuesday in February of the calendar year in which the election is to be held, or to qualify as a candidate for Mayor if a special election is called to fill a vacancy in the office of Mayor, the candidate must file with the City Clerk no earlier than noon on the first Tuesday in April nor later than noon on the third Tuesday in April provided, however, all those who qualified previously for Mayor for the previous regular election will be deemed to have qualified as a candidate for the special election without additional petitions being filed or additional monies being paid or to qualify as a candidate in a special recall election called for the purpose of filling a vacancy pursuant to F.S. Section 100.361, the candidate must file with the City Clerk, no earlier than 8:00 a.m. two (2) days after the circuit court judge, pursuant to F.S. Section 100.361(2), has set the date for the special recall election and no later than 5:00 p.m. on the eighth day after the judge has set the date for the special recall election. The following documents must be filed: (1) A statement in writing under oath stating that the nominee is: (a) Qualified as an elector in the City and has been one since on or before September 1 preceding the election for which he or she is qualifying. (b) A candidate for the office for which he is qualifying. (2) A petition signed by the electors of the City not less in number than one percent of at least 250 of the Registered voters of the City as determined on January 1 of the year of the election, and payment of fifty dollars ($50.00) to cover the cost of validating the signatures on the petition. (B) (1) The petitions shall be on a form prescribed by the City Clerk, which shall not be released nor 2 ORD. NO. 50-11 distributed by the City Clerk until 8:00 a.m. on the first business day in the month of December preceding the month of qualification, or in the event of a special election to fill a vacancy in the office of Mayor, the petition shall be released and distributed by the City Clerk no earlier than the second Tuesday in March proceeding the special election, or in the case of a special recall election at 8:00 a.m. on the day after the Circuit Court Judge, pursuant to F.S. Section 100.361(2), has set the date for the special recall election unless that date falls on a weekend or holiday, in which case a petition may be obtained on the next regular business day. (2) Signatures may be obtained on the petition between the time the City Clerk is authorized to release and distribute the petition and the deadline for qualification. The signatures to a nominating petition need not all be affixed to one paper, but to each separate paper of a petition there shall be attached an affidavit executed by its circulator stating the number of signers of the paper, that each signature on it was affixed in his presence, and that he believes each signature to be the genuine signature of the person whose name it purports to be. The signatures shall be executed in ink or indelible pencil. Each petition shall have next to the signature the date of signing, the place of residence, and precinct number. (C) The names of all candidates and the office for which they have filed shall be received by the Supervisor of Elections from the City Clerk by 5:00 p.m. on the first Friday after the close of qualifying, or in the event of a special election to fill a vacancy in the office of Mayor or in the case of a special recall election by 5:00 p.m. on the day following the close of qualifying except that if said day falls on a weekend or holiday, the City Clerk shall transmit the names of all candidates and the office for which they have filed on the next working day. Section 2. That should any section or provision of this ordinance 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 remainder hereof as a whole or part thereof other than the part declared to be invalid. Section 3. That all ordinances or parts of ordinances in conflict herewith be, and the same are hereby repealed. Section 4. That this ordinance shall become effective upon its passage on second and final reading. PASSED AND ADOPTED in regular session on second and final reading on this the _____ day of ___________________, 2012. ______________________________________ ATTEST: M A Y O R _______________________________ City Clerk First Reading____________________ Second Reading_________________ _ MEMORANDUM TO: Mayor and City Commissioners FROM: R. Brian Shutt, City Attorney DATE: December 7, 2011 SUBJECT: AGENDA ITEM 12.A. -REGULAR COMMISSION MEETING OF DECEMBER 13, 2011 ORDINANCE NO. 50-11 ITEM BEFORE COMMISSION Adoption of Ordinance 50-11 regarding a proposed change to the number of signatures required to qualify as a candidate for election. BACKGROUND Pursuant to the direction given by Commission, at its November 8, 2011 workshop meeting, the following Ordinance has been prepared, which changes the required number of signatures needed on nominating petition from 1% of the registered voters to a set number of 250. RECOMMENDATION Commission discretion. Coversheet Page 1 of 1 http://itwebapp/AgendaIntranet/Bluesheet.aspx?ItemID=5196&MeetingID=339 12/14/2011 MEMORANDUM TO: Mayor and City Commissioners FROM: David T. Harden, City Manager DATE: December 14, 2011 SUBJECT: AGENDA ITEM 10.C. -REGULAR COMMISSION MEETING OF JANUARY 3, 2012 ORDINANCE NO. 47-11 (SECOND READING/SECOND PUBLIC HEARING) ITEM BEFORE COMMISSION This ordinance is before Commission for second reading and public hearing City-initiated amendment to the Land Development Regulations (LDR) Sections 4.4.6 “Medium Density Residential (RM) District”, 4.4.9 “General Commercial (GC) district”, 4.4.12 Planned 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 allowed in the same manner as multiple family residential developments with respect to the number of units and density. BACKGROUND At the first reading on December 13, 2011, the Commission passed Ordinance No. 47-11. RECOMMENDATION Recommend approval of Ordinance No. 47-11 on second and final reading. ORDINANCE NO. 47-11 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AMENDING THE LAND DEVELOPMENT REGULATIONS, BY AMENDING SECTION 4.4.6, “MEDIUM DENSITY RESIDENTIAL (RM) DISTRICT, SUBSECTION (D), “CONDITIONAL USES AND STRUCTURES ALLOWED”, SECTION 4.4.9, “GENERAL COMMERCIAL (GC) DISTRICT”, SUBSECTION (B), “PRINCIPAL USES AND STRUCTURES PERMITTED”, SECTION 4.4.9, “GENERAL COMMERCIAL (GC) DISTRICT”, SUBSECTION (G)(3)(4), “MULTIFAMILY DWELLING UNITS”, SECTION 4.4.12, “PLANNED COMMERCIAL (PC) DISTRICT”, SUBSECTION (G), “SUPPLEMENTAL DISTRICT REGULATIONS”, SECTION 4.4.13, “CENTRAL BUSINESS (CBD) DISTRICT”, SUBSECTION (D), “CONDITIONAL USES AND STRUCTURES ALLOWED”, SECTION 4.4.28, “CENTRAL BUSINESS DISTRICT-RAILROAD CORRIDOR (CBD-RC)”, SUBSECTION (D), “CONDITIONAL USES AND STRUCTURES ALLOWED, TO ADD ASSISTED LIVING FACILITIES TO THE LIST OF ALLOWED USES IN THE SAME MANNER AS MULTIPLE FAMILY RESIDENTIAL USES IN ORDER TO BRING CONSISTENCY BETWEEN THE LAND DEVELOPMENT REGULATIONS AND STATE AND FEDERAL LAWS, PROVIDING A SAVING CLAUSE, A GENERAL REPEALER CLAUSE, AND AN EFFECTIVE DATE. WHEREAS, pursuant to LDR Section 1.1.6, the Planning and Zoning Board reviewed the proposed text amendment at a public hearing held on November 21, 2011, and voted 6 to 1 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 determined that the change is consistent with and furthers the goals, objectives and policies of the Comprehensive Plan; 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. 2 ORD. NO. 47-11 NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AS FOLLOWS: Section 1. That the recitations set forth above are incorporated herein. Section 2. That Section 4.4.6, "Medium Density Residential (RM) District", subsection (D), “Conditional Uses and Structures Allowed”, of the Land Development Regulations of the Code of Ordinances of the City of Delray Beach, Florida, be and the same is hereby amended to read as follows: Section 4.4.6. Medium Density Residential (RM) District: (D) Conditional Uses and Structures Allowed: The following uses are allowed as conditional uses within the RM District. (1) Child care and adult day care. (2) Private educational facilities subject to the restrictions set forth in Section 4.3.3(HHH). (3) Churches, or places of worship, and their attendant educational, nursery, Sunday school, recreational, and columbarium facilities. The foregoing does not allow establishment of educational and care uses such as elementary school and general day care; however, such uses may be established by a separate conditional use application for child care or rezoning to CF, as appropriate. (4) The use of common recreational facilities such as swimming pools, tennis courts, and golf courses (associated with a subdivision) for club or commercial purposes. (5) Single family detached residences in zero lot developments. (6) Yacht club with facilities. (7) Dock master facilities when associated with a multi-family development which has a marina. (8) Private beach clubs with attendant recreational, dining, and related accessory facilities within one of the following areas: (a) the area lying south of Atlantic Dunes Park and east of State Road A1A, or (b) south of Casurina Road, north of Bucida road, and east of State Road A1A. (9) Multiple family residential development, including residential licensed service provider facilities and assisted living facilities, may exceed twelve (12) units per acre, up to a maximum 3 ORD. NO. 47-11 of twenty-four (24) units per acre within the Southwest Neighborhood Overlay District defined in Section 4.5.9, subject to the provisions of Section 4.4.6(I), Article 4.7, and based upon the development’s conformance with the applicable standards and criteria described within the adopted Southwest Area Neighborhood Redevelopment Plan. (10) Multiple family residential development, including residential licensed service provider facilities and assisted living facilities, may exceed twelve (12) units per acre, up to a maximum of twenty-four (24) units per acre within the Carver Estates Overlay District as defined in Section 4.5.11 and up to a maximum of eighteen (18) units per acre within the Infill Workforce Housing Area, subject to the provisions of Section 4.4.6(l), and Article 4.7. Section 3. That Section 4.4.9, "General Commercial (GC) District", subsection (B), “Principal Uses and Structures Permitted”, of the Land Development Regulations of the Code of Ordinances of the City of Delray Beach, Florida, be and the same is hereby amended to read as follows: Section 4.4.9 General Commercial (GC) District: (B) Principal Uses and Structures Permitted: The following are allowed within the GC District as permitted uses, except as modified in the Four Corners Overlay District by Section 4.4.9(G)(3)(a). (1) General retail uses and/or facilities, including, but not limited to: (a) Antiques, arts and crafts, automotive parts, baked goods, books, carpet and floor covering, cheeses, beer, wine, liquor, confectioneries, cosmetics, meats, draperies and slipcovers, pharmacies, electrical fixtures and supplies, fabrics, fish, flowers and plants, fruits and vegetables, food, garden supplies, gifts, glassware, hardware and paints, home furnishings, ice cream, lawn care equipment, leather goods, luggage, medical and surgical equipment, music and musical instruments, nautical supplies, office furniture equipment and supplies, pets and pet supplies, photographic equipment and supplies, sewing supplies, sporting goods, toys, wearing apparel and accessories, appliances, bicycles, business machines, jewelry. (2) Business, Professional, and Medical uses including, but not limited to: 4 ORD. NO. 47-11 (a) Interior decorating, medical and dental clinics, medical and dental laboratories, photographic studios, printing and publishing, business offices, professional offices, and medical offices. (3) Contractor's Offices, including but not limited to: (a) Air conditioning, general contractor, electrical, painting, and plumbing; however, any outside storage of materials is prohibited. (4) Services and Facilities including, but not limited to: (a) Auctions, barber and beauty shops and salons, caterers, dry cleaning limited to on-site processing for customer pickup only, dry cleaning and laundry pickup stations, financing e.g. banks and similar institutions including drive-through facilities, laundromats limited to self-service facilities, pet grooming, restaurants including drive-in and drive-through, tailoring, tobacconist, vocational schools limited to arts and crafts, business, beauty, dancing, driving, gymnastics, photography, modeling, and karate-judo, small item repair, and rental of sporting goods and equipment (such as but not limited to bicycles, skates, boogie boards). With the exception of bicycles with an electric-helper motor as defined in Section 72.02, Delray Beach Code of Ordinances, all rented sporting goods must be non-motorized. (b) Abused spouse residence with forty (40) or fewer residents, galleries, broadcast studios, butcher shops, cocktail lounges, exercise facilities e.g. gyms and clubs, indoor shooting ranges, museums, libraries, newsstands, commercial or public parking lots and parking garages, theaters excluding drive-ins. (5) Dwelling units, and residential licensed service provider facilities and assisted living facilities, in the same structure as commercial uses provided that: commercial uses must be provided on the ground floor; commercial uses on the ground floor must occupy no less than 25% of the total structure excluding square footage devoted to vehicular use; residential uses are not located on the ground level; residential uses and non-residential uses are physically separated and have separate accessways; and the residential density does not exceed 12 units per acre, except the Four Corners District which may have a free standing residential building as part of a multi-building unified master plan or the residential component may be a part of a single mixed use building. The density of the Four Corners 5 ORD. NO. 47-11 Master Plan shall not exceed 30 dwelling units per acre and is subject to the provisions under Section 4.4.9 (G)(3)(d)(4). Section 4. That Section 4.4.9, "General Commercial (GC) District", subsection (D), “Conditional Uses and Structures Allowed”, of the Land Development Regulations of the Code of Ordinances of the City of Delray Beach, Florida, be and the same is hereby amended to read as follows: (D) Conditional Uses and Structures Allowed: The following are allowed as conditional uses within the GC District, except as modified in the North Federal Highway Overlay District by Section 4.4.9(G)(2) and except as modified in the Four Corners Overlay District by Section 4.4.9(G)(3)(c). (1) Amusement game facilities. (2) Wash establishments or facilities for vehicles. (3) Child Care and Adult Day Care. (4) Clubs and Lodges; social, fraternal, and recreational not exceeding 3,500 sq. ft. of gross floor area. (5) Drive-in Theaters. (6) Flea Markets, bazaars, merchandise marts, and similar retail uses. (7) Funeral Homes. (8) Gasoline Stations or the dispensing of gasoline directly into vehicles. (9) Hotels and Motels. (10) Free-standing multiple-family housing, including residential licensed service provider facilities, subject to the requirements of the RM District except for setback and height requirements which shall be pursuant to this Section. (11) Recreational establishments such as bowling alleys, gymnasiums, health spas, miniature golf courses, skating rinks. (12) Sales and service of All Terrain Vehicles and personal watercraft (waverunners, jet skis), with no outside display, outside storage or outside service. (13) Vehicle care limited to the changing of oil and filters, and lubrication with no mechanical work or outside storage of vehicles except as a part of a gasoline station. (14) Veterinary Clinics. 6 ORD. NO. 47-11 (15) (Group Home, Type 2 and Community Residential Homes, pursuant to restrictions set forth in Section 4.3.3(I). (16) Adult Gaming Centers. (17) Churches or places of worship, and their attendant Sunday school, recreational and columbarium facilities not exceeding 3,500 square feet of gross floor area. The foregoing does not allow establishment of educational and care uses such as elementary school and general day care. (18) Multiple family residential development, including residential licensed service provider facilities and assisted living facilities, may exceed twelve (12) units per acre, up to a maximum of eighteen (18) units per acre within the Infill Workforce Housing Area, subject to the provisions of Section 4.4.6(l), and Article 4.7, and subject to the requirements of the RM District except for setback and height requirements, which shall be pursuant to this Section. (19) Assisted Living Facilities, Nursing Homes, and Continuing Care Facilities subject to the requirements of the RM District except for setback and height requirements which shall be pursuant to this Section. (20) Large Family Child Care Home, subject to Section 4.3.3(TT). Section 5. That Section 4.4.9, “General Commercial (GC) District”, subsection 4.4.9(G)(3), “Four Corners Overlay District”, paragraph 4, “Multi-Family Dwelling Units”, of the Land Development Regulations of the Code of Ordinances of the City of Delray Beach, Florida, be and the same is hereby amended to read as follows: Section 4.4.9(G)(3) (3) Four Corners Overlay District: The following supplemental district regulations apply to the Four Corners Overlay District, as defined in Section 4.5.14. (a) The permitted uses shall be those uses listed in Sections 4.4.9(B)(1,2,4,5). (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). (d) Standards Pertaining to Allocation of Uses: 1. Office uses can encompass up to one hundred percent (100%) of the total building square footage within a Four Corners Overlay master development plan. 7 ORD. NO. 47-11 2. Retail uses shall not encompass more than one hundred percent (100%) of the total building area square footage of the Four Corners Overlay master development plan. 3. Hotels, motels, and residential all suite lodging shall not encompass more than 20% of the total building area square footage of the Four Corners Overlay master development plan. Notwithstanding the above, hotels, motels and residential all suite lodging can comprise 100% of the floor area of an individual building within a MDP containing multiple buildings. 4. Multi-family Dwelling Units: Multi-family uses and assisted living facilities, but excluding duplexes subject to (a)(b)(c)(d)(e) below, ranging in density not to exceed 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 development 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 provisions 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) Section 6. That Section 4.4.12, “Planned Commercial (PC) District”, subsection (G), “Supplemental District Regulations”, of the Land Development Regulations of the Code of Ordinances of the City of Delray Beach, Florida, be and the same is hereby amended to read as follows: Section 4.4.12 Planned Commercial (PC) District (G) Supplemental District Regulations: In addition to the supplemental district regulations set forth in Article 4.6, the following shall apply. (1) Development within the Lindell/Federal Redevelopment Area Overlay District (Redevelopment Area #6) shall be consistent with the provisions contained within the adopted 8 ORD. NO. 47-11 Redevelopment Plan for the area, as particularly described under the chapter entitled “Section 4: Plan for Future Development.” (2) Within the portion of the Redevelopment Area that is bounded by Dixie Highway on the west, the C-15 canal on the south, Federal Highway on the east, and Avenue K (extended) on the north, multiple family residential development and assisted living facilities with densities of up to 16 units per acre is are allowed as a conditional use, subject to the provisions of LDR Section 4.4.6 RM (Medium Density Residential) Zoning District, subsection (I), Performance Standards, and based upon the development’s conformance with the applicable standards and criteria described within the adopted Redevelopment Plan. (3) Dwelling units are permitted within the same structure as commercial uses with no restriction on the percentage of each use allowed. In the event that residential and nonresidential uses are located in the same structure, residential uses and nonresidential uses must be physically separated and have separate accessways. (4) All development within the Four Corners Overlay District shall also comply with the provisions of Section 4.4.9(G)(3)(d) and (e). (5) Within the Silver Terrace Courtyards Overlay District, as defined by Section 4.5.17, multi-family residential, assisted living facilities and mixed-use development with residential densities up to 22 units per acre is are allowed as a conditional use, subject to the provisions of LDR Section 4.4.6 RM (Medium Density Residential) Zoning District, subsection (I), Performance Standards, provided at least 20 % of the units are workforce units which comply with the provisions of Article 4.7, “Family/Workforce Housing”. The maximum nonresidential Floor Area Ratio (FAR) within the overlay district is 0.75. Section 7. That Section 4.4.13, “Central Business (CBD) District”, subsection (D), “Conditional Uses and Structures Allowed”, of the Land Development Regulations of the Code of Ordinances of the City of Delray Beach, Florida, be and the same is hereby amended to read as follows: Section 4.4.13 Central Business (CBD) District: (D) Conditional Uses and Structures Allowed: The following uses are allowed as conditional uses within the CBD District: (1) Amusement game facilities limited to such uses as pinball, air hockey, electronic games, and other similar coin operated games when an attendant is on duty. (2) Child care and adult day care. (3) Financial institutions, e.g., banks and similar institutions including drive through facilities pursuant to restrictions set forth in Section 4.4.13(H)(1). 9 ORD. NO. 47-11 (4) Funeral homes including accessory uses, such as, a chapel, crematory, and the like. (5) Gasoline stations or the dispensing of gasoline directly into vehicles, except that such use shall not be allowed in the West Atlantic Neighborhood, the Beach District, nor on lots which front along Atlantic Avenue or N.E. 2nd Avenue (a/k/a Pineapple Grove Way), beginning at a point 105’ south of N.E. 4th Street. (6) Recreational establishments such as bowling alleys, gymnasiums, health spas, miniature golf courses, skating rinks. (7) Veterinary clinics. (8) Movie theaters, excluding drive-ins. (9) Playhouses, dinner theaters, and places of assembly for commercial entertainment purposes (e.g., concerts, live performances). (10) Flea markets, bazaars, merchandise marts, and similar retail uses. (11) Wash establishment, with automatic/mechanical systems only, for vehicles, except that such use shall not be located east of the Intracoastal Waterway or on lots which front along Atlantic Avenue. Further, this use must be established on property with a minimum lot area of 20,000 sq.ft. (12) Multi-family dwelling units, including residential licensed service provider facilities and assisted living facilities, but excluding duplexes, at a density greater than thirty (30) units per acre, on property located south of N.E. 2nd Street and north of S.E. 2nd Street, subject to the standards and limitations of Section 4.4.13(I). (13) Group Home, Type 2 and Community Residential Homes, pursuant to restrictions set forth in Section 4.3.3(I). (14) Restaurants, Cocktail Lounges, Hotels, and Residential Type Inns may provide their required parking as valet parking, subject to the provisions of Section 4.6.9(F)(3 (15) Drive-in or drive-through restaurants on property located within the West Atlantic Neighborhood. (16) Hotels, motels, and residential-type inns on property located within the West Atlantic Neighborhood. (17) Free standing or mixed-use residential development, including residential licensed service provider facilities and assisted living facilities at a density greater than twelve (12) units per acre, but not exceeding 30 units per acre, on property located within the West Atlantic Neighborhood, subject to the standards and limitations of Section 4.4.13(I). (18) Bed and Breakfast Inns within the West Atlantic Neighborhood, subject to the provisions of LDR Section 4.3.3(Y) (19) Live/Work Unit, subject to Section 4.3.3 (KKK). 10 ORD. NO. 47-11 (20) Large Family Child Care Home subject to Section 4.3.3(TT). (21) Segway Tours and Segway Sales pursuant to restrictions set forth in Section 4.3.3(ZZZZ). Section 8. That Section 4.4.28, “Central Business District-Railroad Corridor (CBD-RC)”, subsection (D), “Conditional Uses and Structures Allowed”, of the Land Development Regulations of the Code of Ordinances of the City of Delray Beach, Florida, be and the same is hereby amended to read as follows: Section 4.4.28 Central Business District-Railroad Corridor (CBD-RC) (D) Conditional Uses and Structures Allowed: The following uses are allowed as conditional uses within the CBD-RC zoning district: (1) All uses allowed as such within the CBD [Section 4.4.13(D) ]. (2) Automobile repair and automobile detailing. However, such facilities may not be located north of S.E. 1st Street or south of S.E. 6th Street, extended. Conditional use approval may not be granted for a new automobile repair facility, nor for the expansion of an existing facility, unless it is specifically demonstrated that off-street parking is available in accordance with the requirements of Section 4.6.9. (3) Food preparation and/or processing, including but not limited to bakeries and catering operations. (4) Dry cleaning processing plants. (5) Multi-family dwelling units, and assisted living facilities, but excluding duplexes, at a density greater than thirty (30) units per acre, in the area located west of the FEC Railroad, north of N.E. 2nd Street and south of N.E. 3rd Street, subject to the standards and limitations of LDR Section 4.4.13 (I). In addition, development must be consistent with the Design Guidelines contained within the Pineapple Grove Main Street Neighborhood Plan. The Pineapple Grove Design Review Committee shall review the project for consistency with the Performance Standards and compliance with the Pineapple Grove Neighborhood Plan prior to consideration of the Conditional Use by the Planning and Zoning Board. Section 9. That should any section or provision of this ordinance 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 remainder hereof as a whole or part thereof other than the part declared to be invalid. 11 ORD. NO. 47-11 Section 10. That all ordinances or parts of ordinances in conflict herewith be, and the same are hereby repealed. Section 11. That this ordinance shall become effective immediately upon its passage on second and final reading. PASSED AND ADOPTED in regular session on second and final reading on this the _____ day of ___________________, 2012. _______________________ _____________ ATTEST M A Y O R _______________________________ City Clerk First Reading__________________ Second Reading________________ MEMORANDUM TO: Mayor and City Commissioners FROM: Jasmin Allen, Planner Paul Dorling, AICP, Director Planning and Zoning THROUGH: City Manager DATE: December 6, 2011 SUBJECT: AGENDA ITEM 10.A. -REGULAR COMMISSION MEETING OF DECEMBER 13, 2011 ORDINANCE NO. 47-11 (FIRST READING/FIRST PUBLIC HEARING) ITEM BEFORE COMMISSION Consideration of a city-initiated amendment to the Land Development Regulations (LDRs) to add assisted living facilities to the list of allowed uses in the same manner as multiple family residential uses in order to bring consistency between the Land Development Regulations and State and Federal Laws. BACKGROUND Recently amendments to the Land Development Regulations have been adopted on April 15, 2008 (Ordinance 20-08) and on January 19, 2010 (Ordinance 01-10) to allow assisted living facilities to be accommodated similarly (with respect to the number of residents and units) to either single family, duplex, or multi-family uses in the zoning districts in which those uses were allowed. Subsequently it was discovered that assisted living facilities were not accommodated in the same manner as other multifamily residential uses under two certain situations where special regulations allowed increased densities and in certain overlay districts where residential uses are permitted. Under the proposed ordinance, additional provisions are made to allow assisted living facilities where increased densities are permitted through the conditional use provisions and within certain overlay districts which allows residential uses. 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. The proposed amendment will further Objective B-2 of the Housing Element. A positive finding can be made that the amendment is consistent with and furthers the Goals, Objectives, and Policies of the Comprehensive Plan. REVIEW BY OTHERS The Planning and Zoning Board recommended approval on a 6 to 1 vote (Gerry Franciosa dissenting) at its November 21, 2011 meeting. Coversheet Page 1 of 2 http://agendas.mydelraybeach.com/Bluesheet.aspx?ItemID=5193&MeetingID=339 12/14/2011 RECOMMENDATION By motion, approve Ordinance No. 47-11 on first reading for a City-initiated amendment to the Land Development Regulations, by adopting the findings of fact and law contained in the staff report and finding that the amendment is consistent with the Comprehensive Plan and meets criteria set forth in Section 2.4.5(M) of the Land Development Regulations. Attachments: -Proposed Ordinance No. 47-11 -Planning and Zoning Staff Report of November 21, 2011 Coversheet Page 2 of 2 http://agendas.mydelraybeach.com/Bluesheet.aspx?ItemID=5193&MeetingID=339 12/14/2011 PLANNING AND ZONING BOARD STAFF REPORT MEETING DATE: NOVEMBER 21, 2011 AGENDA NO: IV.B AGENDA ITEM: CONSIDERATION OF A CITY-INITIATED AMENDMENT TO LAND DEVELOPMENT REGULATIONS SECTIONS 4.4.6 “MEDIUM DENSITY RESIDENTIAL (RM) DISTRICT”, 4.4.9 “GENERAL COMMERCIAL (GC) DISTRICT”, 4.4.12 PLANNED COMMERCIAL (PC) DISTRICT, 4.4.13 “CENTRAL BUSINESS (CBD) DISTRICT” AND SECTION 4.4.28 “CENTRAL BUSINESS DISTRICT–RAILROAD CORRIDOR (CBD-RC) DISTRICT”, IN ORDER TO PROVIDE THAT ASSISTED LIVING FACILITIES WILL BE ALLOWED IN THE SAME MANNER AS MULTIPLE FAMILY RESIDENTIAL DEVELOPMENTS WITH RESPECT TO THE NUMBER OF UNITS AND DENSITY ITEM BEFORE THE BOARD The item before the Board is to make a recommendation to the City Commission regarding a City-initiated amendment to the Land Development Regulations pertaining to Assisted Living Facilities. 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 Planning and Zoning Board. BACKGROUND /ANALYSIS On April 15, 2008, the City Commission adopted Ordinance 20-08, pertaining to Assisted Living Facilities and Continuing Care Facilities to comport with State Statues and achieve compliance with the Federal Fair Housing Law. The Ordinance added Assisted Living Facilities and Continuing Care Facilities to certain zoning districts in the same manner in which multiple-family residential uses were allowed within those districts. In order to achieve compliance with State Laws, a subsequent LDR text amendment was adopted by the City Commission on January 19, 2010 (Ordinance 01-10). This amendment allowed assisted living facilities to be accommodated similarly (with respect to the number of residents and units) to either single family, duplex, or multi-family uses in the zoning districts in which those uses were allowed. Recently, a public inquiry was received pertaining to the establishment of an assisted living facility at the 5th Avenue at Delray property, located on the east side of NE 5th Avenue, between NE 1st Street and NE 2nd Street. This property is located within the CBD and was developed at a density in excess of 30 units per acre with a conditional use approval. Assisted living facilities are allowed as a permitted use in the CBD (up to a maximum density of 30 units per acre) however, they were not listed as conditional uses with densities in excess of 30 units per acre. Planning and Zoning Board Staff Report, November 21, 2011 Amendment to LDRs Regarding Assisted Living Facilities Page 2 It was subsequently discovered that assisted living facilities were not accommodated in the same manner as other multi-family residential uses under two certain situations where special regulations allowed increased densities and in certain overlay districts where residential uses are permitted. Under the proposed ordinance, additional provisions are made to allow assisted living facilities where increased densities are permitted through the conditional use provisions and within certain overlay districts which allows residential uses. Pursuant to LDR Appendix “A” Assisted Living Facilities” are defined as: “Any building or buildings, section of building, or distinct part of a building, private home, boarding home, home for the aged, or other residential facility, whether operated for profit or not, which undertakes through its ownership or management to provide housing, meals, and one or more personal services for a period exceeding 24 hours to one or more adults who are not relatives of the owner or administration. “Personal services” means direct physical assistance with or supervision of the activities of daily living and the self-administration of medication and other similar services which the Department of Elderly Affairs may define by rule. “Personal services” shall not be construed to mean the provision of medical, nursing, dental, or mental health services. Assisted Living Facilities shall be accommodated in the same manner with respect to the number of residents and the number of units as required for the respective structures of either a single family unit, duplex unit or multi-family unit in the zoning districts where allowed. Requests for exemptions to the number of residents can be requested through a reasonable accommodation request pursuant to LDR Section 2.4.7(G)” LDR SECTIONS AFFECTED BY THIS ORDINANCE: The following overlay districts, Infill Workforce Housing Areas and Redevelopment Areas allow for multiple family developments under certain criteria and do not allow assisted living facilities under similar circumstances. This ordinance adds assisted living facilities to these districts and areas to maintain consistency. Section 4.4.6 “Medium Density Residential (RM) District: Ø Within the RM district multiple family residential developments may exceed 12 units per acre, up to a maximum of 24 units per acre within the Southwest Neighborhood Overlay district and the Carver Estates Overlay district subject to approval of a conditional use and the provisions of Section 4.4.6(I), Article 4.7 and conformance with the criteria setforth in their respective re-development plan. Section 4.4.9 “General Commercial (GC) District”: Ø Within the GC district multiple family residential developments may exceed 12 units per acre, up to a maximum of 18 units per acre within the Infill Workforce Housing Area subject to approval of a conditional use and the provisions of Section 4.4.6(I), Article 4.7 and conformance with the requirements of the RM district except for setback and height requirements (which shall be per the GC district standards). Section 4.4.12 “Planned Commercial (PC) District”: Ø Within the PC district multiple family residential developments may exceed 12 units per acre, up to a maximum of 18 units per acre within the Infill Workforce Housing Area subject to approval of a conditional use and the provisions of Section 4.4.6(I), Article 4.7 and Planning and Zoning Board Staff Report, November 21, 2011 Amendment to LDRs Regarding Assisted Living Facilities Page 3 conformance with the requirements of the RM district except for setback and height requirements (which shall be per the PC district standards). Additionally, varying density increases are allowed for multiple family developments within several overlay areas which would also be applicable to assisted living facilities. (i) Within the portion of the Redevelopment Area that is bounded by Dixie Highway on the west, the C-15 canal on the south, Federal Highway on the east, and Avenue K (extended) on the north, multiple family residential development with densities of up to 16 units per acre is allowed as a conditional use, subject to the provisions of LDR Section 4.4.6 RM (Medium Density Residential) Zoning District, subsection (I), Performance Standards, and based upon the development’s conformance with the applicable standards and criteria described within the adopted Redevelopment Plan. (ii) Within the Silver Terrace Courtyards Overlay District, as defined by Section 4.5.17, multi-family residential and mixed-use development with residential densities up to 22 units per acre is allowed as a conditional use, subject to the provisions of LDR Section 4.4.6 RM (Medium Density Residential) Zoning District, subsection (I), Performance Standards, provided at least 20 % of the units are workforce units which comply with the provisions of Article 4.7, “Family/Workforce Housing”. The maximum nonresidential Floor Area Ratio (FAR) within the overlay district is 0.75. (iii) Within the “Four Corners Overlay District” of the PC district, multiple-family uses are allowed not to exceed a density of 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 development 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 provisions 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) Section 4.4.13 “Central Business District (CBD) District”: Ø Within the CBD district, multi-family dwelling units (excluding duplexes) are allowed as a conditional use at a density greater than thirty (30) units per acre, on property located south of N.E. 2nd Street and north of S.E. 2nd Street, subject to the standards and limitations of Section 4.4.13(I). In addition, development within the Pineapple Grove Main Street Area must be consistent with the Design Guidelines contained within the Pineapple Grove Main Street Neighborhood Plan. The Pineapple Grove Design Review Committee shall review the project for consistency with the Performance Standards and compliance with the Pineapple Grove Neighborhood Plan prior to consideration of the Conditional Use by the Planning and Zoning Board. Ø Additionally, for that area located with the West Atlantic Redevelopment Area, free standing or mixed-use residential developments are allowed as a conditional use at a density greater than twelve (12) units per acre, but not exceeding 30 units per acre, on property located Planning and Zoning Board Staff Report, November 21, 2011 Amendment to LDRs Regarding Assisted Living Facilities Page 4 within the West Atlantic Neighborhood, subject to the standards and limitations of Section 4.4.13(I). Section 4.4.24 “Central Business District-Railroad Corridor (CBD-RC) District: Ø Within the CBD-RC district, multi-family dwelling units (excluding duplexes) are allowed as a conditional use at a density greater than thirty (30) units per acre, on property located south of N.E. 2nd Street and north of S.E. 2nd Street, subject to the standards and limitations of Section 4.4.13(I). In addition, development within the Pineapple Grove Main Street Area must be consistent with the Design Guidelines contained within the Pineapple Grove Main Street Neighborhood Plan. The Pineapple Grove Design Review Committee shall review the project for consistency with the Performance Standards and compliance with the Pineapple Grove Neighborhood Plan prior to consideration of the Conditional Use by the Planning and Zoning Board. As stated above, assisted living facilities are to be accommodated in the same manner as multiple family residential uses. REQUIRED FINDINGS LDR Section 2.4.5(M)(5) (Findings): Pursuant to LDR Section 2.4.5(M)(5) (Findings), in addition to LDR Section 1.1.6(A), the City Commission must make a finding that the text amendment is consistent with and furthers the Goals, Objectives and Policies of the Comprehensive Plan. Comprehensive Plan Policies: The goals, objectives and policies of the Comprehensive Plan were reviewed and the following applicable objective was noted: Housing Element Objective B-2 states, “Redevelopment and the development of new land shall result in the provision of a variety of housing types and other amenities (i.e. bike trails, parks, sidewalks) to accommodate the diverse economic makeup of the City’s demographic profile, and meet the housing needs of all residents. Policies which will implement this objective include:” The proposed amendment will further this policy. A positive finding can be made that the amendment is consistent with and furthers the Goals, Objectives, and Policies of the Comprehensive. REVIEW BY OTHERS The Pineapple Grove Main Street committee reviewed the amendment at their November 2, 2011 meeting and recommended approval. The Downtown Development Authority (DDA) reviewed the amendment at their November 15, 2011 meeting and recommended approval. The West Atlantic Redevelopment Coalition (WARC) reviewed the amendment at their November 15, 2011 meeting and recommended approval. Planning and Zoning Board Staff Report, November 21, 2011 Amendment to LDRs Regarding Assisted Living Facilities Page 5 The Community Redevelopment Agency (CRA) reviewed the amendment at their November 10, 2011 meeting and recommended approval. Courtesy Notices: Courtesy notices were provided to the following homeowner and civic associations: § Neighborhood Advisory Council § Delray Citizen’s Coalition Letters of objection and support, if any, will be provided at the Planning and Zoning Board meeting. ASSESSMENT AND CONCLUSION The purpose of this City-initiated LDR text amendment is to bring consistency between the Land Development Regulations and Florida Statues. Positive findings can be made with respect to LDR Section 2.4.5(M)(5). RECOMMENDED ACTION Move a recommendation of approval to the City Commission for a city-initiated amendment to Land Development Regulations as reflected in the attached Ordinance, by adopting the findings of fact and law contained in the Staff Report and finding that the request is consistent with the Comprehensive Plan and meets the criteria set forth in LDR Section 2.4.5(M)(5). Attachment: Proposed Ordinance MEMORANDUM TO: Mayor and City Commissioners FROM: David T. Harden, City Manager DATE: December 14, 2011 SUBJECT: AGENDA ITEM 10.D. -REGULAR COMMISSION MEETING OF JANUARY 3, 2012 ORDINANCE NO. 48-11 (SECOND READING/SECOND PUBLIC HEARING) ITEM BEFORE COMMISSION This ordinance is before Commission for second reading and public hearing to Consider a city-initiated amendment to Land Development Regulation (LDR) Section 4.3.3, “Special Requirements for Specific Uses”, by enacting a new Subsection 4.3.3(AAAA), “Simulated Gambling Devices”, in order to prohibit use of same and to enact a new definition of, “Simulated Gambling Devices”. BACKGROUND At the first reading on December 13, 2011, the Commission passed Ordinance No. 48-11. RECOMMENDATION Recommend approval of Ordinance No. 48-11 on second and final reading. ORDINANCE NO. 48 -11 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AMENDING THE LAND DEVELOPMENT REGULATIONS OF THE CITY OF DELRAY BEACH BY AMENDING SECTION 4.3.3, “SPECIAL REQUIREMENTS FOR SPECIFIC USES”; BY ENACTING A NEW SUBSECTION 4.3.3(AAAA), “SIMULATED GAMBLING DEVICES”, IN ORDER TO PROHIBIT USE OF SAME AND AMENDING APPENDIX “A” TO ENACT A NEW DEFINITION OF “SIMULATED GAMBLING DEVICES”; PROVIDING A GENERAL REPEALER CLAUSE, A SAVING CLAUSE, AND AN EFFECTIVE DATE. WHEREAS, pursuant to LDR Section 1.1.6, the Planning 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, Article X, Section 7 of the 1968 Florida Constitution prohibits lotteries within Florida, other than the types of pari-mutuel pools authorized by law as of the effective date of the 1968 Florida Constitution; and WHEREAS, Article X, Section 23, of the Florida Constitution, as adopted in a 2004 Amendment to the Florida Constitution, authorizes slot machine gaming only in certain eligible licensed facilities in Broward and Miami-Dade Counties, Florida, and such authorization is subject to the requirements and conditions set forth in Article X, Section 23 of the Florida Constitution and the extensive regulatory requirements of Chapter 551, Florida Statutes; and WHEREAS, computer or video displays of spinning reels or other simulations of a game or games ordinarily played on a gambling device or in a casino and which show the results of raffles, sweepstakes, contests or other promotions (hereinafter collectively referred to in these recitals as “simulated gambling devices”) were not among the types of pari-mutual pools authorized by law as of the effective date of the 1968 Florida Constitution; and WHEREAS, the technology necessary to facilitate simulated gambling devices effectively did not even generally exist in 1968; and WHEREAS, under no circumstances does the Florida Constitution or the Florida Statutes authorize or permit casino gambling or any activity resembling casino gambling in the City of Delray Beach, Florida; and 2 ORD. NO. 48-11 WHEREAS, no vote of the electorate of the City of Delray Beach authorizing casino gambling in the City of Delray Beach has taken place; and WHEREAS, the City Commission of the City Delray Beach, Florida (the “Commission”), desiring to protect individual rights, while at the same time affording opportunity for the fullest development of the individual and promoting the health, safety, education, and welfare of the people, including the elderly and economically disadvantaged, and the children of the City of Delray Beach who are our most precious and valuable resource, finds that the City of Delray Beach has a compelling interest in protecting its citizens, and in particular its elderly, economically disadvantaged, and children from certain activities and influences which can result in irreparable harm, including simulated gambling devices; and WHEREAS, the Commission recognizes that while the State of Florida has authorized slot machine gaming at licensed facilities in certain areas outside of the City of Delray Beach, it also recognizes that establishments that utilize simulated gambling devices can deceive members of the public, including the elderly, the economically disadvantaged, and children, into believing that they are engaging in a lawfully permitted gaming activity; and WHEREAS, the use of simulated gambling devices is therefore inherently deceptive; and WHEREAS, due to their inherently deceptive nature, establishments that utilize simulated gambling devices are adverse to the quality of life, tone of commerce, and total community environment in the City of Delray Beach, and have an unreasonable adverse effect upon the elderly, the economically disadvantaged, and other citizens of the City of Delray Beach; and WHEREAS, the Commission is also charged with the responsibility of protecting and assisting its citizens who suffer from compulsive or problem gambling behavior; and WHEREAS, there is often a correlation between establishments that utilize simulated gambling devices and disturbances of the peace and good order of the community, and the concurrency of these activities is hazardous to the health, safety, and general welfare of the citizens of the City of Delray Beach; and WHEREAS, in order to ensure the uniform enforcement of existing laws, to preserve the public peace and good order, and to safeguard the health, safety, morals and welfare of the community and citizens thereof, it is necessary and advisable to prohibit the use of simulated gambling devices, unless otherwise exempted by law or ordinance. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AS FOLLOWS: Section 1. That the recitations set forth above are incorporated herein. 3 ORD. NO. 48-11 Section 2. That Section 4.3.3, “Special Requirements for Specific Uses”, Subsection (AAAA), “Simulated Gambling Devices”, of the Land Development Regulations of the City of Delray Beach, shall hereby be enacted to read as follows: (AAAA) Simulated Gambling Devices: (1) Purpose: It is the intent of this section to prohibit the use of simulated gambling devices, including any related activity or behavior which can be reasonably construed to be the use of simulated gambling devices. (2) Prohibition of Simulated Gambling Devices: It shall be unlawful for any person to manage, supervise, maintain, provide, produce or use one or multiple simulated gambling devices. Each individual act to manage, supervise, maintain, provide, produce, or use a simulated gambling device constitutes a separate violation of this section. (3) Exemptions: (a) This section does not prohibit the personal, recreational, non-commercial ownership, play, operation or use of a device which could be construed to be a simulated gambling device, provided such ownership, play, operation or use is not otherwise prohibited by Florida law and provided such ownership, play, operation or use does not constitute a lottery under Article X, Section 7 of the Florida Constitution. (b) This section does not prohibit the ownership, play, operation, or use of any device expressly permitted by the Florida Statutes and not otherwise prohibited by the Florida Constitution, except that devices permitted by Article X, Section 23 of the Florida Constitution and Chapter 551, Florida Statutes, in Broward and Miami-Dade County only are not permitted by this section. c. This section does not prohibit Adult Gaming Centers, which are regulated by LDR Section 4.3.3(AAA). (4) Conflict with State Law: Nothing in this section is intended to conflict with the provisions of the Florida Constitution or Chapter 849, Florida Statutes, concerning gambling. In the event of a conflict between this section and either the Florida Constitution or Chapter 849, Florida Statutes, then the provisions of the Florida Constitution or Chapter 849, Florida Statutes, as applicable, control. (5) Penalty: Any person who violates this section is subject to the provisions of Section 10.99, “General Penalty”, of the Code of Ordinances of the City of Delray Beach. Each simulated 4 ORD. NO. 48-11 gambling device, possession or use thereof constitutes an individual offense for purposes of Section 10.99. Section 3. That Appendix “A”, “Definitions”, of the Land Development Regulations of the City of Delray Beach, Florida, shall hereby be amended to enact a new definition of “Simulated Gambling Device” to read as follows: SIMULATED GAMBLING DEVICE Means any mechanical or electrical device, computer, terminal, video or other equipment that may or may not be capable of downloading games from a central server system, machine, computer or other equipment upon connection with or the insertion of, swiping, passing in range, or any other technical means of physically or electromagnetically connecting to a coin, bill, ticket, token, card, or similar object, including entering a password obtained directly or indirectly through payment of consideration or obtained as a bonus or supplement to another transaction involving the payment of consideration, which makes the device available to play (by skill, chance, or both) or operate a computer or video simulation of any game such as slot machines, bingo, poker, keno, craps, or any other type of game ordinarily played in a casino, including a game involving the display of the results of a raffle, sweepstakes, drawing, contest, lottery, or other promotion, and which may deliver or entitle the person or persons playing or operating the device to a payoff of cash, money, or other credit, billets, tickets, tokens, or electronic credits to be exchanged for cash or merchandise, or any other thing of value, whether made automatically from the machine or manually. Section 4. That should any section or provision of this ordinance 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 remainder hereof as a whole or part thereof other than the part declared to be invalid. Section 5. That all ordinances or parts of ordinances in conflict herewith be and the same are hereby repealed. Section 6. That this ordinance shall become effective upon its passage on second and final reading. 5 ORD. NO. 48-11 PASSED AND ADOPTED in regular session on second and final reading on this the _____ day of ____________________, 2012. ____________________________________ M A Y O R ATTEST: _____________________________ City Clerk First Reading__________________ Second Reading________________ MEMORANDUM TO: Mayor and City Commissioners FROM: Paul Dorling, AICP, Director Planning and Zoning THROUGH: City Manager DATE: December 7, 2011 SUBJECT: AGENDA ITEM 10.B. -REGULAR COMMISSION MEETING OF DECEMBER 13, 2011 ORDINANCE NO. 48-11 (FIRST READING/FIRST PUBLIC HEARING) ITEM BEFORE COMMISSION Approval of a city-initiated amendment to the Land Development Regulations (LDRs) that will prohibit simulated gambling devices and their related places of business sometimes referred to as “internet or sweepstake cafes”. BACKGROUND The businesses that utilize simulated gambling devices are known by several names including Cyber cafes, Sweepstake cafes, or Internet cafes. These businesses can range from storefront locations which install fold out tables, add a few decorations and put out laptop computers with internet access to much larger facilities that install many computers, big screen TVs and have sitting and snack areas. These facilities sell internet access or telephone cards which allow customers to enter a sweepstakes system on computers at the business. Customers then enter games where they can win cash prizes. This circumvents the current gambling laws, because the purchase of computer time or phone cards to enter sweepstakes on a gaming web site is technically not paying to play a game to win money. After players “buy time”, they can win credits in various online sweepstakes that can then be transferred back to cash. These businesses have been popping up across the nation, including more recently in Florida, thereby creating concerns that it will increase crime rates, contribute to the financial hardships for low income customers, and lower property values. Many communities are now considering some type of limitation on this use. These cafes differ from regular internet cafes which charge a fee for computer use and are usually associated with the sale of drinks and snacks, but do not offer or promote sweepstakes as their primary business. They also differ from “adult gaming facilities”, which are allowed in certain zoning districts as a conditional use in the following way: Cyber cafes, Sweepstake cafes, or Internet cafes utilize web based games connected with sweepstake winnings with significantly higher payouts than adult gaming Coversheet Page 1 of 2 http://agendas.mydelraybeach.com/Bluesheet.aspx?ItemID=5195&MeetingID=339 12/14/2011 facilities, where the maximum retail value of individual prizes is limited to 75 cents per game and no cash awards, gift certificates, gift cards, credit cards or other cash substitutes are allowed. REVIEW BY OTHERS The Planning and Zoning Board reviewed the item at their November 21, 2011 meeting and recommended approval on a 7-0 vote. RECOMMENDATION By motion, approve Ordinance No. 48-11 on first reading for a city-initiated amendment to Section 4.3.3 and Appendix ‘A’ of the Land Development Regulations, by adopting the findings of fact and law contained in the staff report and finding that the amendment is consistent with the Comprehensive Plan and meets criteria set forth in Section 2.4.5(M) of the Land Development Regulations. Coversheet Page 2 of 2 http://agendas.mydelraybeach.com/Bluesheet.aspx?ItemID=5195&MeetingID=339 12/14/2011 PLANNING AND ZONING BOARD STAFF REPORT MEETING DATE: NOVEMBER 21, 2011 AGENDA NO: V.C AGENDA ITEM: CONSIDERATION OF A CITY-INITIATED AMENDMENT TO THE LAND DEVELOPMENT REGULATIONS (LDR), BY ENACTING A NEW SUBSECTION 4.3.3 (AAAA) TO PROHIBIT SIMULATED GAMBLING DEVICES, AND AMENDING APPENDIX “A” TO ENACT A NEW DEFINITION FOR THE SAME. ITEM BEFORE THE BOARD The item before the Board is to make a recommendation to the City Commission regarding a cityinitiated amendment to Land Development Regulations (LDRs) that will enact a new subsection to Section 4.3.3, “Special Requirements for Specific Uses”, to prohibit simulated gambling devices and the related places of business sometimes referred to as “internet or sweepstake cafes”. 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 Planning and Zoning Board. BACKGROUND/ANALYSIS The businesses that utilize these simulated gambling devices are known by several names including Cyber cafes, Sweepstake cafes, or Internet cafes. These businesses can range from storefront locations which install fold out tables, add a few decorations and put out laptop computers with internet access to much larger facilities that install many computers, big screen TVs and have sitting and snack areas. These facilities sell internet access or telephone cards which allow customers to enter a sweepstakes system on computers at the business. Customers then enter games where they can win cash prizes. This circumvents the current gambling laws, because the purchase of computer time or phone cards to enter sweepstakes on a gaming web site is technically not paying to play a game to win money. After players “buy time”, they can win credits in various online sweepstakes that can then be transferred back to cash. These businesses have been popping up across the nation, including more recently in Florida, thereby creating concerns that it will increase crime rates, contribute to the financial hardships for low income customers, and lower property values. Many communities are now considering some type of limitation on this use. These cafes differ from regular internet cafes which charge a fee for computer use and are usually associated with the sale of drinks and snacks, but do not offer or promote sweepstakes as their primary business. They also differ from “adult gaming facilities”, which are allowed in certain zoning districts as a conditional use in the following way: Cyber cafes, Sweepstake cafes, or Internet cafes utilize web based games connected with sweepstake winnings with significantly higher payouts than adult gaming facilities, where the maximum retail value of individual prizes is limited to 75 Planning and Zoning Board Meeting, November 21, 2011 LDR Amendment-Prohibition of Simulated Gambling Devices 2 cents per game and no cash awards, gift certificates, gift cards, credit cards or other cash substitutes are allowed. 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, Objectives and Policies of the Comprehensive Plan. While there were no specific sections of the Comprehensive Plan to support the proposed amendment, it is not inconsistent with the Comprehensive Plan. REVIEW BY OTHERS Courtesy Notices Courtesy notices were provided to the following homeowner and civic associations: § Neighborhood Advisory Council § Citizens Coalition § Chamber of Commerce § Progressive Residents of Delray (PROD) Letters of objection and support, if any, will be provided at the Planning and Zoning Board meeting. ASSESSMENT AND CONCLUSION The proposed ordinance will prohibit simulated gambling devices and the related places of business sometimes referred to as “internet or sweepstake cafes”. While the amendment does not specifically further the Goals, Objectives, and Policies of the Comprehensive Plan, and is not inconsistent with them. Further a positive finding can be made with respect to LDR Section 2.4.5(M) (5). ALTERNATIVE ACTIONS A. Continue with direction. B. Move a recommendation of approval to the City Commission of an amendment to the Land Development Regulations, by enacting a new subsection 4.3.3 (AAAA) to prohibit Simulated Gambling Devices, and amending “Appendix A” to enact a new definition for the same, by adopting the findings of fact and law contained in the staff report, and finding that the text amendment and approval thereof is consistent with the Comprehensive Plan and meets the criteria set forth in LDR Section 2.4.5(M) C. Move a recommendation of denial to the City Commission of an amendment to the Land Development Regulations, by enacting a new subsection 4.3.3 (AAAA) to prohibit Simulated Gambling Devices, and amending “Appendix A” to enact a new definition for the same, by adopting the findings of fact and law contained in the staff report, and finding that the text amendment and approval thereof is inconsistent with the Comprehensive Plan and does not meet the criteria set forth in LDR Section 2.4.5(M) (motion to be made in the affirmative). Planning and Zoning Board Meeting, November 21, 2011 LDR Amendment-Prohibition of Simulated Gambling Devices 3 RECOMMENDED ACTION Recommend approval of an amendment to the Land Development Regulations, by enacting a new subsection 4.3.3 (AAAA) to prohibit Simulated Gambling Devices, and amending “Appendix A” to enact a new definition for the same, by adopting the findings of fact and law contained in the staff report, and finding that the text amendment and approval thereof is consistent with the Comprehensive Plan and meets the criteria set forth in LDR Section 2.4.5(M). Attachment: § Proposed Ordinance MEMORANDUM TO: Mayor and City Commissioners FROM: David T. Harden, City Manager DATE: December 9, 2011 SUBJECT: AGENDA ITEM 10.F. -REGULAR COMMISSION MEETING OF JANUARY 3, 2012 ORDINANCE NO. 46-11 ITEM BEFORE COMMISSION This ordinance is before Commission for second reading to 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”. BACKGROUND At the first reading on December 6, 2011, the Commission passed Ordinance No. 46-11. RECOMMENDATION Recommend approval of Ordinance No. 46-11 on second and final reading. 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 SECTION 113.02, “PROHIBITION OF CONSUMPTION OR POSSESSION OF OPEN CONTAINERS OF ALCOHOLIC BEVERAGES IN PUBLIC PLACES”, TO INCLUDE AN EXCEPTION FOR THE DELRAY BEACH 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 locations for consumption of alcohol in order to avoid having to obtain a waiver for each event at the Arts Garage; and NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AS FOLLOWS: Section 1. That Chapter 113, "Alcoholic Beverages", Section 113.02, “Prohibition of Consumption or Possession of Open Containers of Alcoholic Beverages in Public Places”, of the Code of Ordinances of the City of Delray Beach, Florida, be and the same is hereby amended to read as follows: For the purpose of this Chapter the following definition shall 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 person 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 other rights-of-way with the exception that seated patrons of a permitted sidewalk café may consume alcoholic beverages: (2) On the beach; (3) In public parks, provided, however, that patrons of the restaurants located at the Delray Beach Municipal Golf Course and Lakeview Golf Course may consume alcoholic beverages on the Delray Beach Municipal Golf Course and Lakeview Golf Course when they are golfing, and patrons attending an Old School 2 ORD. NO. 46-11 Square, Inc. event at Old School Square, patrons attending 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 waive the applicability of division (A) for certain public functions or affairs. The City Manager 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. Such appeal to the City Commission must be made within seven (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 ordinance 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 remainder hereof as a whole or part thereof other than the part declared to be invalid. Section 3. That all ordinances or parts of ordinances in conflict herewith be and the same are hereby repealed. Section 4. That this ordinance shall become effective upon its passage on second and final reading. PASSED AND ADOPTED in regular session on second and final reading on this the _____ day of ____________________, 2012. ____________________________________ M A Y O R ATTEST: _____________________________ City Clerk First Reading__________________ Second Reading________________ 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 Consumption or Possession of Open Containers of Alcoholic Beverages in Public Places." BACKGROUND This ordinance amendment is before Commission for approval to exclude the Delray Beach Arts Garage from the list of prohibited locations for consumption 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 Commission discretion. Coversheet Page 1 of 1 http://itwebapp/AgendaIntranet/Bluesheet.aspx?ItemID=5135&MeetingID=363 12/9/2011 MEMORANDUM TO: Mayor and City Commissioners FROM: Danielle E. Connor, Fire-Rescue Chief THROUGH: David T. Harden, City Manager DATE: December 14, 2011 SUBJECT: AGENDA ITEM 12.A. -REGULAR COMMISSION MEETING OF JANUARY 3, 2012 ORDINANCE NO. 02-12 ITEM BEFORE COMMISSION The City Commission is requested to approve a revision and update of various sections of Chapter 96 of the City Code of Ordinances. BACKGROUND Revision and updating of the Florida Fire Prevention Code by the state takes place every three (3) years. Section 633.025 (4) of the Florida Statues identifies the procedure a municipality must follow to amend the Florida Fire Prevention Code. This section states that local amendments sunset every three (3) years and require re-adoption by the City Commission. Some previous local code amendments (i.e. NFPA 170 Fire Safety Symbols, NFPA 326 Safeguarding Tanks and Containers, NFPA 820 Fire Protection in Wastewater Treatment and Collection Facilities, etc.) have now been adopted by the State and included in the Florida Fire Prevention Code, thus no longer require local adoption as an amendment to the code. Other portions of the previously approved and locally adopted code (i.e. NFPA 18 Wetting Agents, NFPA 408 Aircraft Hand Portable Fire Extinguishers, NFPA 423 Construction and Protection of Aircraft Engine Test Facilities, etc.) were not adopted therefore require local adoption by the City as justified by our close proximity to the Boca Raton Executive Airport and mutual aid responsibilities. The sprinkler language in Section (1), subsection (b) is the same as amended in May of 2011. Likewise, the verbiage in Section (1) subsection (c) remains the same as amended in June/July of 2011. All the remaining sprinkler language is the original verbiage used during ordinance adoption. RECOMMENDATION Recommend that the City Commission approve the revision and update of various sections of Chapter 96 of the City Code of Ordinances. ORDINANCE NO. 2-12 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AMENDING CHAPTER 96, “FIRE SAFETY AND EMERGENCY SERVICES”, BY AMENDING 96.16, “CERTAIN CODES ADOPTED BY REFERENCE”, TO COMPLY WITH THE STATE OF FLORIDA’S UPDATED CHANGES IN THE FIRE PREVENTION CODE STANDARDS; PROVIDING A SAVING CLAUSE, A GENERAL REPEALER CLAUSE, AND AN EFFECTIVE DATE. WHEREAS, the City Commission follows certain NFPA codes in relation to minimum fire safety standards and the Florida Fire Prevention Code; WHEREAS, the City Commission of the City of Delray Beach, Florida, desires to update its Code of Ordinances to reflect recent changes in the Fire Prevention Code Standards. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA: Section 1. That Section 96.16, “Certain Codes Adopted by Reference” of the Code of Ordinances of the City of Delray Beach, Florida, is hereby amended to read as follows: Sec. 96.16. CERTAIN CODES ADOPTED BY REFERENCE. (A) The City adopts by reference and incorporates into this Code as though fully set out herein, that certain code, as it may from time to time be amended, known as the Florida Fire Prevention Code, and the incorporated standards. (B) The City adopts by reference and incorporates into this Code, as though fully set out herein, those specific codes and standards, from the Florida Fire Prevention Code. In addition to the codes adopted by the Florida Fire Prevention Code, the City of Delray Beach adopts National Fire Protection Association codes listed below and as they may be amended: NFPA 18 2006 Wetting Agents NFPA 170 2006 Fire Safety Symbols NFPA 326 2005 Safeguarding Tanks and Containers NFPA 408 2004 Aircraft Hand Portable Fire Extinguishers NFPA 423 2004 Construction and Protection of Aircraft Engine Test Facilities 2 ORD. NO. 2-12 NFPA 496 2003 Purged and Pressurized Enclosures for Electrical Equipment NFPA 502 2004 Road Tunnels, Bridges, and Limited Access Highways NFPA 720 2005 Household Carbon Monoxide Warning Equipment NFPA 780 2004 Installation of Lightning Protection Systems NFPA 820 2003 Fire Protection in Wastewater Treatment and Collection Facilities NFPA 914 2001 Fire Protection in Historic Structures NFPA 1141 2003 Planned Building Groups NFPA 1962 2003 Care, Use and Service Testing of Fire Hose Including Connections and Nozzles NFPA 1961 2002 Fire Hose The City hereby adopts the following amendments to the Fire Prevention Code of the National Fire Protection Association, N.F.P.A. Pamphlet No. 1, included in the Florida Fire Prevention Code, adopted in this article: (1) Section 13.3.2 is amended to include the following language: Approved automatic fire sprinkler systems as hereinafter defined shall be installed throughout hereinafter constructed buildings and structures or appropriate sections thereof: (a) The following buildings of an institutional or educational character; all hospitals, ambulatory, surgical or treatment centers, nursing homes, homes for the aged, convalescent centers, rehabilitation facilities, day care centers caring for more than 12 clients under 1 year of age, adult congregate living facilities, and all occupancies and uses of similar nature to those herein stated, without regard to the type of construction or height of the building or structure involved. (b) All new construction involving wood or partial wood frame buildings or structures which are 2 stories or more than 20 feet in height as measured from finish ground floor grade to the underside of the topmost roof assembly. Singlefamily homes, duplexes and townhouses shall be exempt from this requirement except as provided in section (d) below. For reconstruction or rehabilitation of existing structures where the total area of the additional/renovation included in the modification does not exceed 50 percent of the area of the building, the work shall be considered exempt from this requirement. 3 ORD. NO. 2-12 (c) All buildings or structures regardless of the type of construction which are 3 or more occupied stories or have three (3) or more unoccupied stories as deemed required by the authority having jurisdiction (AHJ). Occupied story is defined by N.F.P.A. 101 the Life Safety Code as a story occupied by people on a regular basis. Stories used exclusively for mechanical equipment rooms, elevator penthouse, and similar spaces are not occupiable stories. (d) All buildings or structures regardless of the type of construction which are in excess of 12,000 square feet per floor, or an aggregate of 12,000 square feet if there is unprotected communication between floors or intermediate spaces. (e) All portions or sections of buildings or structures which are below grade or which constitute the basement area of a building or structure regardless of square footage of floor area or type of construction. The automatic fire sprinkler systems herein referred to and the installation thereof which is required by this ordinance shall be as contained in and provided for with the applicable standard specified for this section under appendix A of this Fire Prevention Code. (2) Section 13.2.2.2 is amended to include the following language: All hereafter constructed buildings and structures more than 3 stories in height or 36 feet in height or all buildings more than 2 stories in height and more than 30,000 square feet per floor level, shall be equipped with approved Class 1 standpipes to provide reasonable safety to persons and property. For purposes of this section, height is measured from finish ground floor grade to the underside of the topmost roof assembly. (3) Section 13.2.3 is amended to include the following language: All systems, equipment, tanks, piping, devices, appliances, controls, or storage facilities over which the code contains regulatory provisions, or which are required by any other law, shall be maintained in operative condition at all times to provide the service for which installed. All fire sprinkler, standpipe, and fire pump systems shall be annually inspected, serviced, and maintained under a written service contract with service companies licensed by the State of Florida to provide such services and which possess a current occupational license for the City of Delray Beach providing for regular maintenance and testing of the systems in accordance with the applicable standards specified under Appendix A of this Fire Prevention Code and N.F.P.A. 13A, N.F.P.A. 14A and N.F.P.A. 25. 4 ORD. NO. 2-12 The service company performing the maintenance and tests shall forward a written report to the Fire-Rescue Department indicating the nature of any repairs, modifications, and/or corrections completed by the service company, the date and time of such tests and inspections and any other information which may be required by the fire-rescue services department. In addition, a copy of the service report must be maintained on the premises, and it shall be subject to inspection by the Fire-Rescue Department at anytime. (4) Section 13.3.1.7 is amended to include the following language: Valves on connections to water supplies, sectional control and isolation valves, and other valves in supply pipes to sprinklers and other fixed water based fire suppression systems shall be supervised by an approved Central station signaling service. (5) Section 13.7.1.1 is amended to include the following language: Remote monitoring locations shall not be permitted to verify fire alarm signals prior to reporting them to the Fire-Rescue Department. Section 2. That should any section or provision of this ordinance 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 remainder hereof as a whole or part thereof other than the part declared to be invalid. Section 3. That all ordinances or parts of ordinances in conflict herewith be, and the same are hereby repealed. Section 4. That this ordinance shall become effective immediately upon its passage on second and final reading. PASSED AND ADOPTED in regular session on second and final reading on this ____ day of _______________, 2012. ___________________________________ MAYOR ATTEST: ___________________________ City Clerk First Reading________________ Second Reading______________ 10 12/06/11 the front setback that it is no higher than four feet and this wall is proposed at six feet hence the need for the waiver. Staff recommends approval. Bob Currie, Currie Sowards Aguila Architects, 134 N.E. 1 st Avenue, Delray Beach, FL 33444, Applicant, commended Mr. Dorling for his presentation and stated he is present for any questions the Commission may have. Mayor McDuffie stated if anyone from the public would like to speak in favor or in opposition of the waiver request, to please come forward at this tim e. At this point, Chevelle D. Nubin, City Clerk, swore in the follow ing individual: David Armstrong, 321 North Swinton Avenue, Delray Beach, FL, stated another restaurant in this area would be very ill-advise d. Mr. Armstrong stated there is not enough parking downtown as it is and feels there is too much traffic. He stated there are too many restaurants and too much competition. Mr. Armstrong s tated he is a retired chef and has worked in Delray Beach for the las t 20 years has seen restaurants come and go every season. He stated every season he is looking f or work and noted when the snowbirds leave in the summertime the restaurants are s uffering. Mr. Armstrong stated he would like to see Atlantic Avenue during seas on closed off from North Swinton Avenue to Federal Highway because there are too many cars, bicycles on the sidewalks, and you cannot walk by a restaurant without bumping into a waiter. Mr. Armstrong suggested putting temporary podiums in the Avenue, shut off car traffic, and make it foot traffic only. There was no cross-examination. Mr. Currie stated this is an important project in that it saves these four historic buildings and restores them. Mr. Dorling stated the item before the Commission is really a waiver of a wall not the approval of the project. Dr. Alperin stated in the staff backup for the Historic Pre servation Board (HPB) these buildings are called “abandoned” and would like to know w hat this means. Mr. Dorling stated they have been unoccupied for several years. Mrs. Gray stated she will be happy to see the renovations of the se buildings and supports the waiver. Mr. Carney supports the waiver as well. Mayor McDuffie stated this is a major step forward in taki ng care of these structures. 11 12/06/11 The City Attorney briefly reviewed the Board Order with the C ommission who made findings according to their consensus (attached hereto is a copy and made an official part of the minutes). Dr. Alperin moved to adopt the Board Order as presented, seconded by Mr. Carney. Upon roll call the Commission voted as follows: Mr. Carney – Yes; Dr. Alperin – Yes; Mr. Frankel – Yes; Mrs. Gray – Yes; Mayor Mc Duffie – Yes. Said motion passed with a 5 to 0 vote. At this point, the time being 7:05 p.m., the Commission moved to the du ly advertised Public Hearings portion of the Agenda. 10. PUBLIC HEARINGS: 10.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 Departm ent of Housing & Urban Development (HUD) for utilization of federal grant funds. Lula Butler, Director of Community Improvement, stated this is a request for the Commission to approve the 2010-2011 Consolidated Annual Performance and Evaluation Report (CAPER) as required by the Department of Housi ng and Urban Development (HUD). Mrs. Butler stated the Consolidated Annual P erformance and Evaluation Report is a consolidation of their accomplishments from O ctober 1, 2010- September 30, 2011. She stated it is specified under HUD rule tha t staff publishes this and it is made available to the public from the period of Novemb er 13-28, 2011 and staff did not receive any comments. Therefore, Mrs. Butler stated sta ff recommends approval of the CAPER for submitting to HUD for October 1, 2010 through September 30, 2010. Mayor McDuffie declared the public hearing open. There being no one from the public who wished to address the Commission regarding th e Consolidated Annual Performance and Appraisal Report (CAPER), the public hearing was closed. Mrs. Gray stated she is glad that HUD is requesting this report and noted she has learned so much by reading it. Mr. Frankel moved to approve the Consolidated Annual Performance and Appraisal Report (CAPER), seconded by Mrs. Gray. Upon roll c all the Commission voted as follows: Dr. Alperin – Yes; Mr. Frankel – Yes; Mrs. G ray – Yes; Mayor McDuffie – Yes; Mr. Carney – Yes. Said motion passed with a 5 to 0 vote. 10.B. 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 the revis ed legal description of the Fontaine Fox Designation. 12 12/06/11 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.) 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 is consideration of Ordinance No. 43-11 which amends the legal descripti on of the Fox Fontaine House Historic Designation in the LDRs under Section 4.5.1(K) and amends the development restrictions of that historically designated house set forth in Ordinance No. 70-89. Mr. Dorling stated there is a desire by the property ow ner of these lots to the north to take a 50 foot portion of that property and blend it into the se two lots. He stated when that is done we need to amend the ordinance. The original rest rictions that applied to the parcel will continue to be applied to this property b ut it needs to be changed in the ordinance by reference because it is now part of a different plat. At its meeting of November 2, 2011, the Historic Preservation Boar d (HPB) considered this item and recommended approval with a 6 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. 43-11, the public hearing was closed. Dr. Alperin moved to adopt Ordinance No. 43-11 on Second and FINAL Reading, seconded by Mr. Carney. Upon roll call the Commission voted as follows: Mr. Frankel – Yes; Mrs. Gray – Yes; Mayor McDuffie – Yes; Mr. C arney – Yes; Dr. Alperin – Yes. Said motion passed with a 5 to 0 vote. 13 12/06/11 11.A. City Manager’s response to prior public comments and inquiries. With regard to previous comments expressed by Dr. Victor Kir son from the November 15 th meeting, Robert Barcinski, Acting City Manager stated Dr. Ki rson commented on a project in Hazleton, Pennsylvania where the Police D epartment arrested everyone from the ship that unloaded the drugs down to the mothers that were selling them. Mr. Barcinski stated the Delray Beach Police Departm ent actively fights the war on drugs through the outstanding work of our streets narcotics enforcemen t unit and vice intelligence and narcotics unit. Both units have been commended for the ir work in the field. For the period covering January 1 through November 30 th this year these units have affected 233 arrests and seized the following: 174 grams of cr ack cocaine, 111 grams of heroin, 750 pounds of marijuana, and over 5,700 pharmaceutical pills to include roxicodone and oxycodone. Also, Dr. Kirson pointed out how quickly an arrested person is back on the streets if the charge was minor narcotics violati on. It should be noted that in a recent Police Department operations meeting one of the A ssistant State Attorneys who attended supplied some information concerning what is happening in the entire County. There are approximately 20,000 felony cases that get subm itted to the State Attorney’s office a year; of those there is a 75% file rate meaning some cases are not filed due to victim/witness not cooperating and lack of evidence, etc. Taking those numbers there are about 15,000 cases filed into the court system. The re are only seven criminal judges in Palm Beach County that would equate to a maxim um of 700 trials. Taking all of that into consideration we are looking at 14,300 cases that receive plea deals that could entail little jail time or no jail time. 11.B. From the Public. 11.B.1. 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), stated Delray Beach is the nation’s capital for rehabs and sober houses. Dr. Kirson stated now he is seeing vagrant s on the beach. Dr. Kirson stated Palm Beach County Commissioner Priscilla Taylor said they were going to put up three facilities and they only have the money for one. He asked if we are going to make a vagrant law where we can either put them into custody w here they get food and lodging or are we going to let it get worse until we are a major vagrant city. 11.B.2. David Armstrong, 321 North Swinton Avenue, Delray Beach, FL 33444, stated the city is getting larger every day and noted that he does n ot have a car, a license, or insurance to drive a car. Mr. Armstrong stated we need more buses to run every 15 minutes on every route. He stated New York moves their people by subway and rail. Mr. Armstrong stated he waits ½ hour for the bus and Palm Tran only runs eve ry 20 minutes down Federal Highway east and west once every hour. Secondly, Mr. Armstrong stated every night he goes to the beach a nd picks up recycling cans from the beach to make a living. He stated there is a big homeless issue in Delray Beach and the reason is because the re are no jobs. Mr. Armstrong suggested building more manufacturing plants out west ins tead of 14 12/06/11 condominiums and townhomes because there would be less homeless on the street. He commented about the homeless at Knowles Park and stated he likes the fact that the City is recycling but does not like the fact that the City put in the s olar compactors because the cans are being crushed with the paper. Mr. Armstrong suggeste d that the City put recycling bins at the beach and we could use that money for the k ids programs. Mr. Armstrong suggested that the City work together with the Community Redevelopment Agency (CRA) to set up a triage area for food and a sanitat ion area place for these people to sleep and buy up the abandoned homes in the southwest area of Delray Beach e ast of I- 95 and sell them to people or give them to low income housing peop le. Mr. Armstrong stated spending $5 million of tax dollars on brick pavers across fr om the Fire Department is a waste of tax dollars and gives the homeless people another place to sle ep. 11.B.3. Jolene McClure, owner of Off the Ave Food & Spirits, 19 S.E. 5 th Avenue, Delray Beach, FL, thanked the Commission, Police Chief Strianese and the Assistant Police Chief with regards to the situation on Atlanti c Avenue and S.E. 5 th Avenue. Ms. McClure stated Police Chief Strianese and the Assis tant Police Chief have come into her business several times, have been up and down the stre ets and have provided Clean and Safe Officers. She stated the problem is not abated but she appreciates the service. 11.B.4. Mark Fields, 414 Seasage Drive #4, Delray Beach, FL 33483, stated for the past 2-3 years he has attempted to have the parking at the b each addressed specifically at the intersection of Casuarina Road and Venetian Drive. Mr. Fields stated he sent an email to the City April 7 th and he never received a response. He received a response from the City on July 22, 2010 stating that there was a comp rehensive assessment of signage for the barrier island. Mr. Fields sta ted he would like to know where that assessment is that took place. He stated he followe d up again on June 15, 2011 via email and received no response from the City Engineer. M r. Fields stated the intersection is very dangerous and the site visibility is a conc ern and liability. He stated people are parking on both sides of Casuarina Road and feels this is a real safety issue because rescue vehicles cannot get by on the roads if there wer e an emergency. Mr. Fields stated somebody is going to lose their life or be severely injure d. At this point, the time being 7:23 p.m., the Commission moved back to Item 9.B. of the Regular Agenda . 9.B. WAIVER REQUESTS/104 S.E. 1ST AVENUE: Consider waivers to Land Development Regulations (LDR) Section 4.6.9(F)(3)(d),“Specia l Provisions”, which requires a drive aisle width of 24’, by permitting a drive a isle width of 22’; and to Section 4.6.9(F)(3)(i), “Valet Parking”, which requires a perimete r landscape buffer of 10’, by permitting a landscape buffer that varies from 1’6” t o 6’4” for the attendant off- site parcel located at 104 S.E. 1st Avenue. (Quasi-Judicial Hearing) Mayor McDuffie asked the Commission to disclose their ex par te communications. Mr. Carney, Dr. Alperin, Mr. Frankel, and Mrs. Gray had no ex parte communications to disclose. Mayor McDuffie stated he met with the owner, his agent, discussed the project and received a copy of the site plan. 15 12/06/11 Paul Dorling, AICP, Director of Planning and Zoning, stated this w aiver request is also associated with the “Swinton Social” site. Mr . Dorling stated they have proposed to have a valet surface and purchase this lot and put i n a valet parking lot. The two waivers that are required now relate to the parking lot. Mr . Dorling stated one waiver request relates to the aisle width and noted there is a required 24 foot between parking spaces down the center and the request is to go to 22 feet . The second waiver is to the required ten foot landscape strips that are required around t he site. He stated this is a very small site and if they were to comply with those it makes it unusable as a parking lot. The applicant is asking for some reductions that range from a foot and a half to 6 ½ feet in this location. He stated they are providing a landscape plan which provides hedging and trees in that reduced area and has been approved as par t of the Class V approval. Staff believes these two waivers to the parking aisle width of two feet and the reduction in landscape setbacks around the site are appropriate i n this situation and the landscaping that would be in the wider strips is being provided in the smalle r strips. Mr. Dorling stated the Historic Preservation Board (HPB) cons idered this waiver as part of that Class V approval and recommended approval. Mr. Currie stated they are also putting a decorative picket f ence in that area. Mayor McDuffie stated if anyone from the public would like t o speak in favor or in opposition of the waiver requests, to please come forwar d at this time. There being no one from the public who wished to address the Commission re garding the waiver requests, the public hearing was closed. Mrs. Gray asked where the valet queue would be. Mr. Dorling sta ted the valet queue would be on the primary site and the valet lot is one lot down the block. Mrs. Gray asked if there is public parking in front of the proje ct. Mr. Dorling stated there is public parking along Swinton Avenue and 1 st . Dr. Alperin stated there are 7 spaces in the driveway wit h 2 of them being handicapped. Dr. Alperin asked if the other spaces are going to be used for valet or are they going to be available for parking. Mr. Currie stated they want everything to be valet parking. Mrs. Gray stated her concern was only that we would not be usi ng the public parking spaces out front for the valet queue. Mr. Curr ie stated there are nine spaces on the street that they are not using and not counting. Dr. Alperin asked what would this development require in spaces a nd how many are actually being provided. Mr. Dorling stated the applica nt did receive relief for a number of parking spaces through the approval with HPB and part of that negotiation was also that they seek alternative areas for valet parking and they are actively seeking alternative areas. Mr. Dorling stated while it cannot be counted for their public spaces there is the public parking garage immediately adjacent to the s ite as well. 16 12/06/11 Mr. Currie stated he believes 53 spaces are required; 26 on t he valet lot; 7 on their property and also made a contractual agreement with t he valet where he has between 20-40 additional spaces. Dr. Alperin stated there are a certain number of spaces r equired and asked where they are and how can we be reassured that the spaces ar e going to be available. Mr. Dorling stated there is no requirement that they actually pr ovide any additional spaces because of that waiver. As part of that discussion, the y have committed to find those spaces but they are not obligated by Code. Dr. Alperin s tated HPB approved a waiver to LDR Section 4.5.1 and reduced the number of parking spaces from 53 to 33 based upon the presentation of confirmation that adequate parking f or proposed use would be achieved through alternate means. Mrs. Gray asked what happens if they want to sell one of the buildings. Mr. Dorling stated there would be a Unity of Title between a ll of those properties as well as a valet parcel. Mr. Dorling stated they would not be able t o break that without City consent and the City’s subdivision code if they wanted to sell it s eparately it would require a subdivision and a platting process. Mrs. Gray sta ted she loves the project but expressed concern over the parking. Brief discussion between staff, Mr. Currie, and the Commission followed. Dr. Alperin stated he is favor of the waiver request. Mr. Carney stated he is in favor of the waiver request. The City Attorney briefly reviewed the Board Order with the C ommission who made findings according to their consensus (attached hereto is a copy and made an official part of the minutes). Mr. Frankel moved to adopt the Board Order as presented, seconded by Mr. Carney. Upon roll call the Commission voted as follows: Mrs. 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.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 Devel opment”, 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 landsca pe islands where terminal landscape islands are required in four locations, in assoc iation with Phase I of Boston’s Restaurant. (Quasi-Judicial Hearing) Mayor McDuffie asked the Commission to disclose their ex par te communications. Mr. Frankel stated he received a letter and recei ved a tour of Boston’s and looked through the entire project with a representative from Ocean Properties. Mrs. 17 12/06/11 Gray stated she may have received a letter but has not read a letter. Mayor McDuffie stated he received a letter and have not taken a tour or spoken to a ny of the representatives. Mr. Carney stated he received a letter. D r. Alperin stated he too received a letter. Paul Dorling, AICP, Director of Planning and Zoning, stated at this point they are considering two waivers to two portions of the LDRs t hat were provided with a Class II site plan modification for Boston’s renovation. These wai vers relate to a required minimum width of a landscape island and are requesting to reduce that from 62 square feet to 75 square feet. Mr. Dorling stated the required fi ndings under LDR Section 2.4.7(B)(5) are made in the staff report. Staff recommends approval at this time. At its meeting of October 26, 2011, the Site Plan Review and Appea rance Board (SPRAB) reviewed the two waiver requests in conjunction wi th a Class II Site Plan Modification and the Board approved both waivers on a 4 to 0 vote. Bob Currie, Currie Sowards Aguila Architects, 134 N.E. 1 st Avenue, Delray Beach, FL 33444, Applicant, stated Salina Avenue is by space and alley which is 16 or 18 feet wide. Mr. Currie stated the alternative is that you have a 60 foot right-of- way which you would have to get rid of buildings and parking. Mr. C urrie stated they had to reduce them because of the radius to trucks and a fire tru ck around. In addition, Mr. Currie stated they are not required to have any open space r equirement and they provided 18%. Mayor McDuffie stated if anyone from the public would like to speak in favor or in opposition of the waiver requests, to please come forwar d at this time. There being no one from the public who wished to address the Commission re garding the waiver requests, the public hearing was closed. No cross-examination or rebuttal. The City Attorney briefly reviewed the Board Order with the C ommission who made findings according to their consensus (attached hereto is a copy and made an official part of the minutes). Mr. Carney moved to adopt the Board Order as presented, seconded by Mr. Frankel. Upon roll call the Commission voted as follows: Ma yor McDuffie – Yes; Mr. Carney – Yes; Dr. Alperin – Yes; Mr. Frankel – Yes; Mrs. G ray – Yes. Said motion passed with a 5 to 0 vote. 9.D. WAIVER REQUESTS/BOSTON’S RESTAURANT - PHASE II: Consider approval of three (3) waiver requests to Land Develop ment 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), “M inimum Width”, Minimum Drive Aisle Width to allow 22’ where 24’ is requi red and Land Development Regulations (LDR) Section 4.6.9(D)(3)(c)(1), “Stacking D istance”, 18 12/06/11 Minimum Stacking Distance to allow 27’ where 50’ is required, in associati on 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 a nd dining areas. (Quasi-Judicial Hearing) Mayor McDuffie asked the Commission to disclose their ex par te communications. Mr. Frankel stated he received a letter and recei ved a tour of Boston’s and looked through the entire project with a representative from Ocean Properties. Mrs. Gray stated she may have received a letter but has not read a letter. Mayor McDuffie stated he received a letter and have not taken a tour or spoken to a ny of the representatives. Mr. Carney stated he received a letter. D r. Alperin stated he too received a letter. Paul Dorling, AICP, Director of Planning and Zoning, stated these waivers are for Phase II and is part of a Class V Site Plan Modific ation. He stated these waivers refer to the width of this driveway which is being requested to b e reduced from twenty- four feet (24’) to twenty-two feet (22’) and it relates to the height of these buildings which is supposed to be a minimum of twenty-five feet (25’) per the CBD (Central Business District) Design Guidelines and they are lower than that . Mr. Dorling stated there are some waivers to required stacking distances at the t wo entranceways to the parking. There is a minimum of fifty (50) foot required and twe nty-seven (27) feet is being provided in these locations. This proposal includes an outdoor bar area and outdoor seating. Mr. Dorling stated the waiver relates to the heig ht of those buildings and reiterated that the height is required to be a minimum of t wenty-five feet (25’) and they are a maximum of fourteen feet (14’) high. Bob Currie, Currie Sowards Aguila Architects, 134 N.E. 1 st Avenue, Delray Beach, FL 33444, Applicant, briefly spoke about the twenty-two foot (22’) drive aisle which is proposed from the southernmost driveway access fr om A1A. Mr. Currie stated the intention is to bring all the service trucks in and the garbage truck backs into that and goes in and out on Atlantic Avenue. Mayor McDuffie stated if anyone from the public would like to speak in favor or in opposition of the waiver requests, to please come forwar d at this time. There being no one from the public who wished to address the Commission re garding the waiver requests, the public hearing was closed. Mr. Carney asked if there is anything the Commission is doing tonight that would work to the detriment of the appeal. Mr. Dorling stated these specific waivers would not and by virtue of approving these waivers it does not approve th e overall Class V that would be subject to approval next week. Mr. Dorling stat ed the reduction of the driveway is in part to provide some additional landscaping. Mr. Dorling stated there will be a large wall that will buffer the outdoor seating area, and then there wil l be a landscape strip, then there will be a 22 foot driveway and then there will be five foot landscape strip with additional landscaping. He stated if the Commission did not a pprove a reduction in this driveway width they potentially could not provide that additional l andscape strip 19 12/06/11 which goes to compatibility. Mr. Dorling stated this would heig hten the compatibility that is being proposed. The City Attorney briefly reviewed the Board Order with the C ommission who made findings according to their consensus (attached hereto is a copy and made an official part of the minutes). Mr. Frankel moved to adopt the Board Order as presented, 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 Mc Duffie – Yes. Said motion passed with a 5 to 0 vote. 9.E. REVOCATION OF VALET PARKING LICENSE AGREEMENT WITH CUGINI GRILLE: Consider approval to revoke the valet parking license agreement with Cugini Grille for the valet parking queue located on the south side of the 200 block of East Atlantic Avenue. 9.E.1. PARKING LICENSE AGREEMENT FOR VIC & ANGELO’S: Consider approval of a parking license agreement with Vic & Ange lo's to use the valet parking queue on the south side of the 200 block of East A tlantic Avenue, replacing Cugini Grille. Mr. Frankel stated they received a package about 5:55 this e vening from representatives from Cugini Grille and they make various allega tions, conflicts of interest, and the like. In particular, they have a lot having to do with Frances Marincola and they include some documents from the Clerk of Court. Mr. Frankel st ated he previously represented Mr. Marincola on a traffic ticket. Mr . Frankel stated Mr. Marincola is not a party to this but he wanted to know if there is a conflict of interest because of his traffic representation. The City Attorney st ated he does not see this as a problem for Mr. Frankel to participate in the discussion. Scott Aronson, Parking Management Specialist, stated this item i s the revocation of the valet parking license agreement with Cugini Gri lle for the valet queue located on the south side of the 200 block of East Atlantic Avenue. Mr. A ronson stated this was one of the original valet queues with the program in the mid 1990’s. In 2004, the restaurant was sold to Joe Gattelaro and changed to Cugini Gr ille and the valet queue was transferred to the new owner through the Consent of Assignment For m through the City approved by the City Manager. In 2010, the restaurant changed hands and the Consent of Assignment was completed with the approval of the City Manager and the new owners of Cugini Grill proceeded to manage the valet parki ng queue. In 2011, the valet queue increased its rates from $10.00 to $15.00 per car. In March 2011, Mr. Manero, owner of Vic & Angelo’s and The Office addressed the Par king Management Advisory Board (PMAB) requesting to take ownership of that valet qu eue in that the queues were getting too expensive and he felt that his customers were not being treated with the proper respect and some other issues they had. At the time, staff did not recommend approval of that transfer. Mr. Aronson stated the valet que ue license was 20 12/06/11 being met and at the time the agreement did not have anything wit h respect to pricing or validations and these are all added to the revised agreements. Mr . Aronson stated this was done in March 2011 and it was an informal request of the Board and it was done at under a citizen’s time to speak at the Parking Management Advisor y Board (PMAB). In April 2011, a formal request came through for the Board to deliberat e. Staff did not recommend approval at that time. Mr. Aronson stated somewhere around t hat time there was a meeting with all of the valet license holders and that meeting was about the changes that were being proposed to the agreements to get t heir feedback. At that time, Mr. Aronson stated they agreed that the changes were okay. Mr. Arons on stated a question was asked that Cugini Grille was going to be closing for a couple of months around summertime to do some renovations and that they would be reope ning in 60 days. Mr. Aronson stated through that time staff was getting several p hone calls from neighboring businesses that the restaurant was closed and ther e were numerous allegations as to why. Mr. Aronson stated at the end of October it was confirmed that the restaurant was indeed for sale and it was going to closing on that following Monday. At that point, Mr. Aronson stated Mr. Manero was advised that if and when Cugini Grille would no longer be in business that the queue could go to Vic & Angelo’s as the interested party. Mr. Aronson stated from May when Cugini Grille advised s taff that they would be closing for the 60 days through the end of October it was t here was no contact from the license holder. Mr. Aronson stated in early November he spoke with the queue operator verifying with him that the restaurant was indeed for sale. Mr. Aronson stated he understood that through previous meetings that once the restaurant sold Vic & Angelo’s was going to receive the queue. Mr. Aronson stated November 17, 2011, he received a telephone call that the sale fell through and that t hey were going to be reopening but the renovations still needed to be done. At that point, staff advised Mr. Manero that he would be getting the queue and it would be moving to the Parking Management Advisory Board (PMAB) for that recommendation. Mr. A ronson stated with Mr. Krevoy’s (Cugini Grille) notice to staff that he was interested in keeping the queue staff felt that the Parking Management Advisory Board (PM AB) should hear both parties and make that decision. Staff’s recommendation was to tr ansfer the agreement to Vic & Angelo’s. At its meeting of November 22, 2011, the Parking Management Advisor y Board (PMAB) heard both parties and recommended approval of the tr ansfer of the queue. Mr. Aronson stated this first issue to revoke the parking lice nse agreement with Cugini Grille. The license agreement is a revocable licens e and can be cancelled by the City, with or without cause, at any time, effective upon the mailing of notice . Dr. Alperin asked what the advantage to the City to have individual restaurants controlling the valets. Mr. Aronson stated the City w ould have to enter into those agreements for those private spaces on those private prop erties. Dr. Alperin asked if the valet companies would be able to do this. Dr. Alperin stated it would appear logical that the City would have a bidding process for the valet s to go find spaces and the valets would have to sign a contract with the City. Mr. Aronson stat ed this was the original intent of the City in the mid 1990’s. 21 12/06/11 Mr. Barcinski stated in the 1990’s they decided it was better t o have individual private agreements and have them find the parking spaces on private lots rather than using up any City lots. Mr. Aronson stated the reason they went to the agreements being tied to the restaurants is the portability of the valets. Mr. Frankel asked if these insurance companies have insurance and stated the City would be a party. Brief discussion followed between the City Attorney, Commissioner Frankel, and staff regarding any potential lawsuits that could i nvolve the City and/or valet. Mrs. Gray asked why we are requesting Cugini Grille to re voke the agreement. Mr. Aronson stated up until the day he was preparin g the Board packet they had not communicated. Dr. Alperin asked Mr. Aronson if nobody brought it up would staf f have done anything. Mr. Aronson stated when Mr. David Manero, owner of Vic & Angelo’s, asked for it in March and in April staff did not support it but it was a concern that all of a sudden it was for sale. Mr. Aronson stated there was a concern with staff and some of the Board members with valet parking becoming its own independent busi ness. Mr. Aronson stated it was not something that was supposed to be a profit c enter to support a restaurant that may or may not have been able to stand on its own. Mrs. Gray stated she does not understand how staff can say let’s revoke their agreement because they did not communicate. Mrs. Gray stated if they had gone out of business the n she would agree with it. The City Attorney stated at the Parking Management Advisory B oard (PMAB) meeting the Board allowed both parties to speak and it is the discretion of the Commission if they wish to allow them to make a brief comment on this. Rick Burgess, 1011 West Heritage Club Circle, Delray Beach, FL (employee of 270 East Atlantic Avenue the company that owns Cugin i Grille and Martini Bar), read a brief statement into the record and distributed copies to the City Commission. Michael Weiner, Attorney with Weiner & Lynne, P.A., 10 S.E. 1 st Avenue, Delray Beach, FL 33444 (representing the Applicant Vic & Angelo’s), briefly discussed the ownership of Cugini Grille and the agreement s as presently written stated “the agreements shall not be transferred or assigned wit hout the express written consent of the City.” Mr. Weiner stated they have never heard f rom the true owner. He stated the last insurance certificate they put in was not cor rect so they have not met the insurance requirements. Mr. Weiner stated Mr. Aronson testified that he did receive complaints from other people as well as Blue Oyster who has said that they have had 22 12/06/11 their customers treated badly, had keys thrown at them, and have not been serviced the way they expect to be serviced. He stated the Parking Manage ment Advisory Board (PMAB) voted 8 to 2 regarding this. Mr. Weiner urged the Commissi on go follow the PMAB’s recommendation and stated if the Commission wishes to re-write the ordinances and the agreement they are happy to discuss this on another night. Mr. Frankel asked when the contract is up. Mr. Aronson stated the contract is up the end of March. Mr. Frankel stated he does not se e a breach of contract and there is nothing in the agreement that states you have to be an open business . Mrs. Gray stated she concurs with Commissioner Frankel. Mr. Carney stated he too does not see a breach of contract and h as not seen any ads where they are selling the valet queue. Dr. Alperin stated he too concurs with Commissioner Frankel and is not in favor of revoking the license agreement at this time. Mayor McDuffie stated we need to find ways that we are not m arking our merchants at odds with each other because we are working on anyt hing that is divisive in the downtown area. Mayor McDuffie stated he does not believe there has been any breach of contract and believes it needs to run its course until Ma rch. He stated the staff needs to do some studying on this and find a way to assign these queues and suggested that the City contract these queues out as like with the Old School Square Garage. M ayor McDuffie stated that way it is not merchant against merchant it is all the C ity of Delray. Mr. Carney stated the City does not necessarily need a brea ch of contract in order to terminate this contract; the City reserves the right to do that. Dr. Alperin moved to approve the Revocation of the Valet Parking License Agreement with Cugini Grille, seconded by Mr. Frankel. Upon roll call the Commission voted as follows: Dr. Alperin – No; Mr. Frankel – No; Mrs. Gray – No; Mayor McDuffie – No; Mr. Carney – No. Said motion to approve the revocation was DENIED with a 5 to 0 vote. 9.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 que ue. Scott Aronson, Parking Management Specialist, stated this is a request to re-establish a valet queue that was established in 2006. The S aki Room occupied 401 West Atlantic Avenue in 2006 and they ran the valet queue for approxima tely a year but the operation of the restaurant did not pan out and subsequently the queue was not continued on its following expiration. He stated shortly after tha t the restaurant closed down and it has been vacant for several years. Mr. Aronson stat ed the parking spaces went back into the municipal pool and the valet signs were removed. He stated Breathe 23 12/06/11 Restaurant and Lounge is now occupying the space and is requesti ng to re-establish the valet queue. Mr. Aronson stated they have the support of the Atlantic Grove Condominium Association allowing the valet to utilize their parking lot on N.W. 4 th Avenue adjacent to the Mt. Olive Church. Staff recommends approval of this valet parking queue. Mr. Frankel suggested that if the Commission approves this can the y make it a condition that the restaurant has to be operational. Dr. Alperin suggested that the Commission approves this only through March. Brief discussion between the City Attorney and the Commission followed. Dr. Alperin moved to approve the assignment of the valet parking queue for Breathe Restaurant and Lounge, seconded by Mr. Carney. 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. 9.G. 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 Mayor McDuffie (Seat #5). Mayor McDuffie stated he wished to appoint Jeffrey Conley as a regular member to the Green Implementation Advancement Board to serve an une xpired term ending July 31, 2012. Mr. Frankel so moved, seconded by Dr. Alperin. Upon rol l call the Commission voted as follows: Mrs. Gray – Yes; Mayor McDuff ie – Yes; Mr. Carney – Yes; Dr. Alperin – Yes; Mr. Frankel – Yes. Said motion passed with a 5 to 0 vote. 9.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). Mayor McDuffie stated he wished to appoint Julia Kadel as a regular member to the Education Board to serve an unexpired term ending July 31, 2013. Dr. Alperin so moved, seconded by Mr. Carney. Upon roll call the Com mission voted as follows: Mayor McDuffie – Yes; Mr. Carney – Yes; Dr. Alper in – Yes; Mr. Frankel – Yes; Mrs. Gray – Yes. Said motion passed with a 5 to 0 vote. At this point, the time being 8:40 p.m., the Commission moved to Item 12, First Readings. 24 12/06/11 12. FIRST READINGS: 12.A. ORDINANCE NO. 44-11 : Consider an ordinance amending the Charter of the City of Delray Beach by amending Article III, “Legi slative”, Section 3.02, “City Commission: Composition, Eligibility, Election, and Terms” and Se ction 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 passe d, a public hearing will be held on January 3, 2012. The caption of Ordinance No. 44-11 is as follows: 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. (The official copy of Ordinance No. 44-11 is on file in the City Clerk’s office.) The City Attorney read the caption of the ordinance and stated b ased on comments from the Workshop Meeting on November 8, 2011, staff revised thi s ordinance where it has been modified to provide that the terms will be three terms and each term will be three years. Staff also added language t hat provides for the Commissioners that are voting on this particular ordinance and take s into account terms that have already been served. Therefore, the City Attorney sta ted the nine years is not a cap that you have to reach; if a Commissioner has already ser ved and run again and are re-elected and they have already served one two-year term w hen this goes into effect then they are eligible to serve two more terms. The City Attorn ey stated it would be effective starting for the election in March 2013. Mr. Carney moved to approve Ordinance No. 44-11 on FIRST Reading, seconded by Mr. Frankel. Upon roll call the Commission voted as fol lows: Mr. Carney – Yes; Dr. Alperin – Yes; Mr. Frankel – Yes; Mrs. Gray – Ye s; Mayor McDuffie – Yes. Said motion passed with a 5 to 0 vote. 25 12/06/11 12.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-sub section (3), “Four Corners Overlay District”, to correct outdated references. If passed, a public hearing will be held on January 3, 2012. The caption of Ordinance No. 45-11 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 4.4.9, “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. (The official copy of Ordinance No. 45-11 is on file in the City Clerk’s office.) The City Attorney read the caption of the ordinance. Paul Dorling, AICP, Director of Planning and Zoning, stated this ordinance is to correct outdated references concerning conditional use s allowed in the four corners overlay district. The permitted and conditional uses for the Four Corners Overlay District are contained within specific district re gulations in the GC (General Commercial) District. Mr. Dorling stated there were a numbe r of changes made to the general uses within the GC and this is to re-align the original uses the way they were identified. At its meeting of November 21, 2011, the Planning and Zoning Board reviewed this item and recommended approval with a 7 to 0 vote. Staf f recommends approval. Dr. Alperin moved to approve Ordinance No. 45-11 on FIRST Reading, seconded by Mr. Frankel. Upon roll call the Commission voted as fol lows: Dr. Alperin – Yes; Mr. Frankel – Yes; Mrs. Gray – Yes; Mayor McDuffi e – Yes; Mr. Carney – Yes. Said motion passed with a 5 to 0 vote. 12.C. ORDINANCE NO. 46-11: Consider an Ordinance amending Chapter 113, "Alcoholic Beverages", Section 113.02, “Prohibition of Consumption or Pos session of Open Containers of Alcoholic Beverages in Public Places”. If passed, a public hearing will be held on January 3, 2012. 26 12/06/11 The caption of Ordinance No. 46-11 is as follows: 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 SECTION 113.02, “PROHIBITION OF CONSUMPTION OR POSSESSION OF OPEN CONTAINERS OF ALCOHOLIC BEVERAGES IN PUBLIC PLACES”, TO INCLUDE AN EXCEPTION FOR THE DELRAY BEACH ARTS GARAGE; PROVIDING A GENERAL REPEALER CLAUSE, A SAVING CLAUSE, AND AN EFFECTIVE DATE. (The official copy of Ordinance No. 46-11 is on file in the City Clerk’s office.) The City Attorney read the caption of the ordinance and stated this is to amend the Code to put the Arts Garage on the same scenario as Old School Square, the Tennis Center, and the Golf Course, etc. where the City does not re quire a waiver every time. Mr. Carney and Dr. Alperin disclosed that they are both on the Boar d of the Creative City Collaborative (CCC) and asked if they need a bstain. The City Attorney stated as far as whether this passes or not will anything l ike that inure to their financial gain or detriment. Mr. Frankel disclosed that his law firm entered into an agreement to sponsor a series of events that are going to be held there and st ated there is no financial gain. Mrs. Gray asked if they will be selling alcohol. The City Attorney stat ed they cannot sell alcohol at all. Dr. Alperin moved to approve Ordinance No. 46-11 on FIRST Reading, seconded by Mr. Frankel. Upon roll call the Commission voted as follow s: Mr. Frankel – Yes; Mrs. Gray – Yes; Mayor McDuffie – Yes; Mr. Carney – Yes; Dr. Alperin – Yes. Said motion passed with a 5 to 0 vote. 13. COMMENTS AND INQUIRIES ON NON-AGENDA ITEMS. 13.A. City Manager Robert Barcinski, Acting City Manager, had no comments or inquiries on non-agenda items. 27 12/06/11 13.B. City Attorney The City Attorney had no comments or inquiries on non-agenda items. 13.C. City Commission 13.C.1. Mr. Frankel Mr. Frankel stated the Christmas tree lighting was great and commended Sarah Martin and staff for a great job. He stated approximat ely 40,000 people were in attendance. Secondly, Mr. Frankel thanked the City Manager and the City Commission for allowing him to represent Delray Beach at the A TP Championships in London which he attended with Mark Baron and John Butler. Mr. Frankel stated no taxpayer money was used for him traveling to London and noted he paid f or the trip out of his own pocket. Mr. Frankel stated he went to London and was excited to represent the City but left amazed with the respect that our City has on a n international level. He stated Delray Beach gets criticized on the monies we spend at the tennis facility and on this tennis tournament but there is no regret on what we are doing as a city. Lastly, with regard to the water meeting, Mr. Frankel stat ed he would like the City Manager to speak with the City Manager from Boynton B each regarding the attendance. 13.C.2. Mrs. Gray Mrs. Gray stated this weekend she attended the International Netball Association in our city and this is their first time having a n etball conference in the United States. Mrs. Gray thanked the Palm Beach County Sports C ommission, Pompey Park, and City staff who helped organize this event. She stated De lray Beach will be hosting their national event at Atlantic High School in June. Secondly, Mrs. Gray stated she and Mrs. Butler had a meeting wi th Senator Sachs last month on technology trying to get the transf er from the high school to the university and she is allowing us to recommend a couple of our y outh. Mrs. Gray stated Village Academy is trying to put in place a technology academy . Lastly, Mrs. Gray stated last week there was community meeting from Delray Alliance and it was very well attended. 28 12/06/11 13.C.4. Mr. Carney Mr. Carney stated as a follow up to comments expressed by Commissi oner Frankel some of those valet companies use City lots. Secondly, Mr. Carney stated Mayor McDuffie actually knew the street name Salina. Mr. Carney stated the parking problems at A-1-A and Casuarina have to be addressed. He stated there does not appear to be “No Parking” signs posted and believes you are allowed to park on the swales and the lot 100 feet away is emp ty. Lastly, Mr. Carney stated this past Saturday he had the oppor tunity to see the Delray Beach Chorale who performed at the First Presbyterian Chur ch. He stated it is their 30 th Anniversary and sent a note to the City Manager about doing a proclama tion for them. 13.C.4. Dr. Alperin Dr. Alperin had no comments or inquiries on non-agenda items. 13.C.5. Mayor McDuffie Mayor McDuffie stated with regard to the technology issue s at Village Academy we are in the process of finalizing the Tri-Party Agreement between the County, City, and Community Redevelopment Agency (CRA) on the Digita l Divide Project which is wireless blanketing all of the northwest/southw est community. He stated as soon as this is signed and finalized this project wil l be underway. Mayor McDuffie stated a high school and elementary school are furbishing PC’s for the project; the TED Center has some wireless devices, and $90,000.00 from the CRA, $10,000.00 from private individuals, and a private organization that may donate $50,000.00. Secondly, Mayor McDuffie stated he saw an incredible article on the City of Delray Beach from the Boston Globe. Mayor McDuffie agrees with comments expressed by Commissi oner Carney regarding swale parking and on-street parking being a p roblem throughout Delray Beach. Mayor McDuffie reminded the Commission that the Principal of Village Academy invited everyone to attend the Village Academy Meeting tomorrow night at 6:00 p.m. to discuss ideas for activating the community. He stated the tree lighting was awesome and Channel 12 & 5 wa s great. Mayor McDuffie stated City staff did a great job. 29 12/06/11 Mayor McDuffie stated last Tuesday he went to Coral Gab les to the Japanese Consul General’s Home to celebrate the birthday of t he Emperor. Mayor McDuffie stated the Japanese Consulate General is coming to Ci ty Hall tomorrow at 3:00 p.m. Mayor McDuffie stated he attended a fundraiser on the be ach for St. Joseph’s and it was great. Lastly, Mayor McDuffie stated he is growing a mustache be cause he will be in a musical the middle of January called “From Linton with Love” written by Ernie Simon. There being no further business, Mayor McDuffie declared the m eeting adjourned at 9:00 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 December 6, 2011, which Minutes were formally approved and adopted by the City Commission on ________________________. _________________________________________________________ City Clerk 30 12/06/11 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. City Commission Meeting on December 6, 2011; Item 9.A. City Commission Meeting on December 6, 2011; Item 9.A. City Commission Meeting on December 6, 2011; Item 9.B. City Commission Meeting on December 6, 2011; Item 9.B. City Commission Meeting on December 6, 2011; Item 9.C. City Commission Meeting on December 6, 2011; Item 9.C. City Commission Meeting on December 6, 2011; Item 9.C. City Commission Meeting on December 6, 2011; Item 9.D. City Commission Meeting on December 6, 2011; Item 9.D. City Commission Meeting on December 6, 2011; Item 9.D. City Commission Meeting on December 6, 2011; Item 9.D. 08/02/11 DECEMBER 13, 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, December 13, 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 Brian Shutt, City Attorney Chevelle D. Nubin, City Clerk 2. The opening prayer was delivered by Reverend Michael McClure with West Park Baptist Church. 3. The Pledge of Allegiance to the flag of the United States of A merica was given. 4. AGENDA APPROVAL. Mayor McDuffie stated there is revised information on Item 8.J., Amendment to the Third Addendum to the Contract for Sale and Purchase/310 Southridge Road . He stated there is additional information for Item 9.B., Appeal of An Administrative Interpretation/Boston’s Restaurant and for Item 9.H., Request for Qualifications (RFQ) Responses for Local Energy Assurance Plan ning (LEAP) & Training . Dr. Alperin moved to approve the Agenda as amended, seconded by Mr. Frankel. Upon roll call the Commission voted as follows: Dr. Al perin – Yes; Mr. Frankel – Yes; Mrs. Gray – Yes; Mayor McDuffie – Yes; Mr. C arney – Yes. Said motion passed with a 5 to 0 vote. 5. APPROVAL OF MINUTES: Mrs. Gray moved to approve the Minutes of the Workshop Meeting of November 8, 2011, 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. 2 12/13/11 Mr. Frankel moved to approve the Minutes of the Special Meetin g of November 29, 2011, 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. 6. PROCLAMATIONS: 6.A. None 7. PRESENTATIONS: 7.A. RESOLUTION NO. 55-11: Approve Resolution No. 55-11 recognizing and commending Joanna M. Weaver for 30 years of dedicated service to the City of Delray Beach. The caption of Resolution No. 55-11 is as follows: A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, RECOGNIZING AND COMMENDING JOANNA M. WEAVER FOR THIRTY YEARS OF DEDICATED SERVICE TO THE CITY OF DELRAY BEACH. (The official copy of Resolution No. 55-11 is on file in the City Clerk’s office.) Mayor McDuffie read and presented Resolution No. 55-11 to Joanna M. Weaver for thirty (30) years of dedicated service to the City of Delray B each. Dr. Alperin moved to approve Resolution No. 55-11, seconded by Mr. Carney. Upon roll call the Commission voted as follows: Mayor Mc Duffie – Yes; Mr. Carney – Yes; Dr. Alperin – Yes; Mr. Frankel – Yes; Mrs. Gray – Yes. Said motion passed with a 5 to 0 vote. Brian Shutt, City Attorney, came forward and gave a few bri ef comments. Joanna W. Weaver came forward to accept the proclamation and gave a few brief comments. 7.B. RESOLUTION NO. 56-11: Approve Resolution No. 56-11 recognizing and commending Gail Vanhove for 30 years of dedicated service to the City of Delray Beach. The caption of Resolution No. 56-11 is as follows: A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, RECOGNIZING 3 12/13/11 AND COMMENDING GAIL VANHOVE FOR THIRTY YEARS OF DEDICATED SERVICE TO THE CITY OF DELRAY BEACH. (The official copy of Resolution No. 56-11 is on file in the City Clerk’s office.) Mayor McDuffie read and presented Resolution No. 56-11 to Gail Vanhove for thirty years of dedicated service to the City of Delray Beach. Mr. Frankel moved to approve Resolution No. 56-11, seconded by Mrs. Gray. Upon roll call the Commission voted as follows: Mr. Carne y – Yes; Dr. Alperin – Yes; Mr. Frankel – Yes; Mrs. Gray – Yes; Mayor McDuffie – Y es. Said motion passed with a 5 to 0 vote. Gail Vanhove, Administrative Assistant, came forward to accep t the proclamation. Linda Karch, Director of Parks and Recreation, and Alberta Gaum, P roject Coordinator/Parks and Recreation, came forward and gave a few brief comment s. 7.C. Planet Footprint Environmental Metrics and Scorecard – Richar d Reade Rich Reade, Sustainability Officer, stated staff has been w orking on an Environmental Scorecard and Metrics Program and this was recommende d as part of the 2009 Green Task Force Report. Mr. Reade stated recently the Cit y Manager attended a conference and identified Planet Footprint who is out of Australia a nd they have an office in the United States. Mr. Reade stated they go out and collect the different envi ronmental data whereas the City staff would normally have to do that. Mr. Reade stated Planet Footprint helps the City with reporting and monitoring energy (el ectric and gas), water (potable water, reclaimed water and waste water), fleet (fuel both in regular gas, diesel and propane), waste and recycling, and greenhouse gas performance to improve efficiency and effectiveness of the City. Mr. Reade stated it allows staff to track various environmental data that occurs not only within the organization but als o within the community. He displayed a chart and explained that it shows 2011, 2010, a nd 2009 and the City has been status quo with the recycling and it gives t he City an opportunity where we can make some improvements in recycling. Mr. Reade state d recycling is revenue to the City on the residential side. Therefore, Mr. Reade stated it is import ant for the City to do it for the environmental benefit but it also helps the sanitati on fund. Mr. Reade stated Delray Beach is the first community to use this in Florida so we have been identified as the “showcase community” with Planet Footprint. Mr. Reade stated the entire project to date has been funded through the City’s Energy Efficiency and Conserv ation Block Grant (EECBG) and staff anticipates next year’s to also be funded t hrough the EECBG allocation. 4 12/13/11 Mrs. Gray asked what the maintenance will be per year af ter the grant dollars run out. Mr. Reade stated the first year the City wa s at a reduced rate because we were considered a showcase city. 7.D. The Plastridge Insurance Agency – Connor Lynch (ADDENDUM) Connor Lynch stated Plastridge is pleased to be the agent for t he City of Delray Beach and thanked the City Commission for the opportunity. M r. Lynch stated the City of Delray Beach is insured through the Florida Municipal Insurance Trust which is run by the Florida League of Cities. He stated since the Trust is owned by its member of municipalities it is not designed to make a profit and in t he event of a surplus these monies are returned to its membership on a pro-rated basis. M r. Lynch stated the surplus comes from the fact that we did not have a large hurricane event and this is the return premium for the 2009/2010 policy period. Mr. Lynch presented the City of Delray Beach with this year’s return premium in the amount of $267,245.00. Mr. Lynch tha nked Frank Babin, Risk Manager and the Risk Management Department for thei r diligent work on the City’s insurance program. 8. CONSENT AGENDA: City Manager Recommends Approval. 8.A. LANDSCAPE MAINTENANCE AGREEMENT/DECK 84: Approve a Landscape Maintenance Agreement between the City and Delr ay Beach Associates, Inc. for Deck 84 located at 840 East Atlantic Avenue. 8.B. ADDITIONAL SCOPE/INTERCOUNTY ENGINEERING, INC.: Approve an additional scope of services with Intercounty Engineer ing, Inc. for the removal of 2,000 linear feet of 2" water main and approval for the amount of $16,000.00 to be paid from the Contract's Utility Allowance for the Osce ola Park Water Main Phase 2 Project. 8.C. CHANGE ORDER NO. 2/MURRAY LOGAN CONSTRUCTION, INC.: Approve Change Order No. 2 with Murray Logan Construction, Inc. for a contract time extension of thirty (30) days due to unexpected job s ite conditions for the Mangrove Park Boat Ramp Reconstruction. 8.D. PROPOSED CHANGES TO THE GENERAL EMPLOYEES RETIREMENT PLAN PENSION FUND INVESTMENT POLICY: Approve proposed changes to the General Employees Retirement Plan Pension Fund Investment Policy. 8.E. AMENDMENT NO. 1 TO THE JOINT PARTICIPATION AGREEMENT (JPA)/FLORIDA DEPARTMENT OF TRANSPORTATIO N (FDOT): Approve Amendment No. 1 to the Joint Participation Agreement (JP A) with the Florida Department of Transportation (FDOT) to extend the current expiration date to December 31, 2012 to be consistent with the time allotted for the one-year maintenance of the project associated with the West Atlantic Avenue Landscape Medi an Project. 5 12/13/11 8.F. REQUEST FOR PROPOSAL (RFP)/OFF-DUTY DETAIL PROGRAM: Approve the RFP Selection Committee’s recommendation of the Del ray Beach Public Library to administer the Police Department’s Off-D uty Detail program. 8.G. FY 2012 STATE LEGISLATIVE PRIORITIES: Approve the City's proposed 2012 State Legislative Priorities. 8.H. BONUS PAYMENT TO JCD SPORTS GROUP, INC.: Approve FY 2010/2011 bonus payments to JCD Sports Group, Inc. for golf course opera tions in the amount of $16,620.00 and for Tennis Center operations in the amount of $6,909.00. Funding is available from 445-4711-572-34.90 (Delray Beach Municipal Golf Course Fund: Other Contractual Service), 446-4711-572-34.90 (Lakeview Golf Course: Other Contractual Service), 001-4215-575-34.90 (General Fund: Operating Exp enses- Miscellaneous/Other Contractual Service) and 001-4210-575-34.90 (General Fund: Operating Expenses-Misc/Other Contractual Service). 8.I. CONTRACT ADDITION (CHANGE ORDER NO. 2)/BRANG CONSTRUCTION, INC.: Approve Contract Addition (Change Order No. 2) with Brang Construction, Inc. in the amount of $15,471.00 for one (1) additional bus shelt er as requested by Palm Tran and for a contract time extension of 208 days for the ARRA Bus Shelters Project. Funding is available from 101-3163-544-65.70 (ARRA Economi c Stimulus FD: Other Improvements/Transit Stop Bus Shelters). 8.J. AMENDMENT TO THE THIRD ADDENDUM TO THE CONTRACT FOR SALE AND PURCHASE/310 SOUTHRIDGE ROAD: Approve an Amendment of the third addendum to the contract to sell/transfer one (1) NSP property to the Delray Beach Community Land Trust (DBCLT) for the benefit and resale of the unit to a household with an income less than one-hundred percent (120%) of Area Median Income (AMI) as determined by HUD. 8.K. REVIEW OF APPEALABLE LAND DEVELOPMENT BOARD ACTIONS: Accept the actions and decisions made by the Land Development Boa rds for the period December 5, 2011 through December 9, 2011. 8.L. AWARD OF BIDS AND CONTRACTS: 1. Contract award to Duraclean Restoration and Remediation in the amount of $24,884.73 to abate the mold and asbestos inside the building at 80 Depot Avenue. Funding is available from 334-6111- 521-46.90 (General Construction Fund: Repair & Maintenance Services/Other Repair/Maintenance Costs). 2. Purchase award to Chemical Lime Company of Alabama, Inc. at an annual estimated cost of $750,000.00 for the purchase of bulk quicklime via the City of Boynton Beach Bid No. 005-2821-09/JA. Funding is available from 441-5122-536-52.21 (Water and Sewer Fund: Operating Supplies/Chemicals). 6 12/13/11 Mr. Frankel moved to approve the Consent 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. C arney – Yes. Said motion passed with a 5 to 0 vote. 9. REGULAR AGENDA: 9.A. APPEAL OF SITE PLAN REVIEW APPEARANCE BOARD’S DECISION: BOSTON’S RESTAURANT: Consider an appeal of a Site Plan Review Appearance Board’s Decision to approve the Class V site plan, landscape plan and architectural elevations for the proposed Boston’s Restaurant expansion located at 40 South Ocean Boulevard. (Quasi-Judicial Hearing) Mayor McDuffie read the City of Delray Beach Quasi-Judicial r ules into the record for this item and all subsequent Quasi-Judicial i tems. Chevelle D. Nubin, City Clerk, swore in those individuals who wished to give testimony on this item. Mayor McDuffie asked the Commission to disclose their ex par te communications. Mr. Frankel stated he received letters from the appellant a couple of weeks ago; he previously received a tour from a representative f rom Ocean Properties before the new Boston’s opened; and had lunch upstairs at Boston’s with no communications (same for Item 9.A. & 9.B.). Mrs. Gray stated she had no ex parte communications to disclose except for the mail the Commission rec eived. Mayor McDuffie stated in addition to the letter he had five emails from the public which he will forward to the City Clerk. Mayor McDuffie stated some time ago the applicant came before the Commission and stated Tom McMurrian is his cousin and Ms . Ruby at the time researched to see if there was any conflict and there is not therefore he will be voting on this item. Mr. Carney stated he had a brief conversat ion with the architect of Currie Sowards Aguila Architects and a passing conversation wit h Attorney Michael Weiner not discussing the issue but just saying that it would be coming before the Board. He had a conversation with architect Gary Eliopoulos about the ef fect of walls, etc. on noise mitigation. Dr. Alperin stated he received the same let ters and emails and no discussion. Paul Dorling, AICP, Director of Planning and Zoning, entered the Planning and Zoning project file #2011-194 into the record. Mr. Dorling stated staff received an additional letter of opposition today. Mr. Dorling stated on October 26, 2011, the Site Plan Review and Appearance Board (SPRAB) approved a Class II site plan modif ication which did have some minor changes to the alignment of the entry and exit driveways and some parking improvements to the existing parking lot in association with the revamping of the existing 7 12/13/11 Boston’s building. He stated that was followed up with a Class V site plan which provided additional parking to the rear, three new accessory struc tures for storage, men and women’s restrooms, construction of a new outdoor bar, platform deck, lo bster cooker hut and outdoor seating and dining areas on property immediately to the south of the existing Boston’s restaurant which was previously occupied by Bermuda Inn. Mr. Dorling stated on November 23, 2011, the Commission received a letter fr om an attorney and his wife, owners of Unit #1 immediately to the south. Staff b elieves that the Class V approval is for outdoor dining use and does not include elements which are potentially incompatible with these residential uses like the outside music. Mr. Dorling stated the appeal outlines reasons for the appeal and center around the compatib ility of this use with adjacent residential properties. He stated while the appea l talks about the appropriateness of the entire outside use including dining there is a significant conc ern with respect to outside entertainment. Mr. Dorling stated staff believes that t he Class V approval is for outside dining use and does not include elements which are potentially incompatible with these residential uses like the outside music. Mr. Dorling state d not including outside hours nor hours of operation past midnight, staff believes that SP RAB made the required findings for the Class V and that the appeal should be denied, upholding SPRAB’s decision. Zorian Sperkacz, 12000 Biscayne Boulevard #415, Miami, FL 33181 (representing the Brannen’s), stated the Brannen’s property is the closest property to this development and they oppose the entire development. Mr. Sper kacz stated in the alternative they feel there should be additional mitigation measur es that should be mandated by the Commission before allowing any of the outdoor dining and bar. Mr. Sperkacz stated the area to the south is all residential and the Commission has gone through great efforts to keep that area low density. He sta ted this used to be a little motel that had very little traffic, there is virtually no buffer bet ween the north wall and the two- way driveway on the south side of this property. Mr. Sperkacz stated the applicant has put a wall up around the dining area to protect their patrons fr om the traffic on that driveway but they have not done anything to protect the condominium on the south property line from traffic. Mr. Sperkacz stated page 12 & 13 of the November 9, 2011 staff report focuses on two issues in determining that this p roject is harmonious and compatible with the residential area but they are only looking at if there is going to be live entertainment and as long as they close at midnight they can allow this as a harmonious compatible use. Mr. Sperkacz stated they feel that l ive entertainment is inconsistent with a residential neighborhood 30-40 feet away and do not feel that closing at midnight is sufficient to protect the residents. Mr. Sperkac z suggested that 9:00 p.m. would be the end of service with 10:00 p.m. for the outdoor area being c losed altogether. He stated they are also concerned about traffic along that south dr iveway back and forth particularly at closing time. He stated there is no buffer between the driveway and the wall of his clients unit and suggested to put up a wall along the south side of the drive way on the north edge of the Bahama House property line in addition to the wall that they are putting around their patrons to protect them from that driveway. Mr. Sperkacz stated it is his understanding that there was no consideration given from SPRAB regarding the odor from the commercial lobster cooker going into the condominium unit. Mr. Sperkacz stated they agree with the Planning and Zoning Board’s interpret ation that live 8 12/13/11 entertainment should not be permitted with this use but in the eve nt that the Commission feels that it is an accessory use, SPRAB and Planning and Zoning could have imposed additional conditions as part of approval of the Class V site plan. Alan Ciklin, representing the owners of Boston’s (Applican t), 515 North Flagler Drive, West Palm Beach, FL, stated this is not a residentially zoned piece of property; it is in the CBD (Central Business Dis trict) category and this type of use is a permitted use within that district. Mr. Ciklin state d SPRAB approved the Boston’s site plan on November 9, 2011 and spent over an hour discussing the compatibility issues. He stated residents from the Bermuda Hous e appeared, asked questions, and supported the project. Mr. Ciklin stated neither Mr. nor Mrs. Brannen was at the SPRAB hearing and it makes it very difficult for them to appeal a decision that they were not a part of. Mr. Ciklin stated their appeal is b ased on two citations; one is Housing Element Policy A-11.3 which states “In evaluating proposa ls for new development, the City shall consider the effect that the prop osal will have on the stability of nearby neighborhoods. Factors such as noise, odors, dust, traffic vol umes and circulation patterns shall be reviewed in terms of their potent ial to negatively impact the safety, habitability and stability of residential areas. I f it is determined that a proposed development will result in a degradation of any neighborhood, the pr oject shall be modified accordingly or denied.” He stated SPRAB unanimously approve d that there was not a degradation of any neighborhood. Mr. Ciklin stated the second por tion of their appeal sites a Code section that does not exist. He stated it may have been a typographical error and noted the “s” at the end of the LDR sec tion probably should have been a “5” and that section states “the approving body must ma ke a finding that development of the property pursuant to the site plan will be compatible and harmonious with adjacent and nearby properties in the city as a whole s o as not to cause substantial depreciation of property values.” He stated the other was that the project had to result in a degradation of a neighborhood none of which was considered to be the case i n the SPRAB approval. Mr. Ciklin stated the substantial competent evi dence is the testimony at SPRAB, the official file, and the testimony and recommendati on of staff. Mr. Ciklin stated there is no substantial competent evidence to grant this appeal. Bob Currie, Architect with Currie Sowards Aguila Architec ts, stated resident of the adjacent property, stated this project is going to be a great asset to the community. Mr. Currie stated everyone else in the condominium is in approval of this. Mr. Currie stated there was a motel there that was is disrepair and it had a swimming pool and it was all open to the development and noted they had plenty of noi se that way. Mr. Currie stated they have gone to great lengths to mitigate the noise by putting up a wall, a landscape island, another landscape island, and a 12 foot hedge. Mayor McDuffie stated if anyone from the public would like to speak in favor or in opposition of the appeal, to please come forward at this time. 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), stated this is an asset to Delray Beach and he loves 9 12/13/11 the idea. There being no one else from the public who wished to address the Commission regarding the appeal, the public hearing was closed. Mr. Sperkacz stated the Brennan’s did not get notice of the proce edings until the day after the SPRAB hearing and they specifically written a letter earlier and asked that the City give them notice of the hearing. Therefore, M r. Sperkacz stated the reason the Brennan’s did not attend because they did not know about it. Mr. Dorling stated there is no required notice but there is a Comp Plan that talks about neighborhood groups and can receive notice. Mr. Dorling stated the City sent a courtesy notice on October 28 th to the representative for the Bahama House as well as the Bahama House condo. He stated the notice for the Bahama H ouse condo was returned undeliverable and the one to the association to Matt Gracey was received. Mr. Dorling stated after receiving one of the notices back staff did provide a copy of a courtesy notice which was posted on the property on November 7, 2011 in t he internal courtyard area and a copy was mailed to each condo owner. Mr. Dorli ng stated there were several attempts to notice on this property. Mr. Ciklin stated Mr. Gracey is an officer of the association and appeared at the SPRAB hearing, asked some questions, and offered his endorsement of the proje ct. Mr. Carney stated he is generally troubled by notice at t imes when people are out of town and things take a while to get to them. Mr. Carne y expressed concern that this would go until midnight so close to a residential neighborhood . Mr. Carney stated the City did comply with the Statute as it relates t o notice but he does acknowledge that there are some issues with respect to noise and great ef forts were made to mitigate that with respect to the hedge and the walls. Dr. Alperin concurred with comments expressed by Commissioner Carney. Dr. Alperin asked if by the acceptance of the site plan of the platform commits any board of the City to entertainment just because there is a platform. Mr. Dorling stated in the staff report and discussions during the SPRAB mee ting it was made clear that any outside entertainment performed on the platform would requir e an additional conditional use process in which appropriate mitigation measures could be applied. Mr. Dorling stated that is subject to appeal by the applicant on the next agenda item. Dr. Alperin stated he wanted to make sure that if it is approved i t does not mean the platform will be used for that purpose. Mrs. Gray stated the applicant asked about the odor from the lobs ter cooker and asked if something can be done about this. Mr. Ciklin stat ed the lobster cooker has been eliminated and noted it is just a summer kitchen and outdoor grill. Mr. Frankel stated he has been to Boston’s and the improvements that have been made to the indoor area are remarkable. Mr. Frankel s tated he has no doubt 10 12/13/11 that the proposed outdoor area is going to be the same. He stat ed there have not been any other complaints about this in particular many members of the BPOA in the audience who are very vocal when there is a problem in that area and did not see anyone come to the microphone to complain. In addition, Mr. Frankel stated SPRAB w as unanimous in their approval. Therefore, Mr. Frankel stated he will support denying the a ppeal. Mayor McDuffie stated when the Commission is presented wit h issues of noise everyone becomes very sensitive because there are issues of noise that we deal with downtown on a regular basis. Mayor McDuffie stated as testimony went this evening his concern would be outdoor music and at this point there is none. He stat ed if that were to happen it would have to be brought before a board or the City Comm ission. The Commission is very sensitive to that and they would take a strong look at music and the times of day that it is played. Mayor McDuffie stated multi ple boards in the City are seated to review these things. He stated he is looking for subs tantial competent evidence for the Commission to overturn a decision that was made a competent board in the city and he hears none. Dr. Alperin asked if the lack of a lobster cooker become part of the record in the vote. The City Attorney stated he would like to get the appl icant’s consensus on that and put a condition on the Board Order that the lobster cooker is removed and it will be replaced by an outdoor grill that meets all the City codes. The City Attorney reviewed the Board Order with the Commission w ho made findings according to their consensus (attached hereto is a co py and made an official part of the minutes). Dr. Alperin moved to adopt the Board Order as presented (denying the appeal) subject to the following conditions set forth in Exhibit C and D as well as the condition that provides the removal of the lobster cooker with a gril l apparatus, 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. 9.B. APPEAL OF AN ADMINISTRATIVE INTERPRETATION/BOSTON’S RESTAURANT: Consider the appeal of an administrative interpretation by the Director of Planning and Z oning that a conditional use approval is required for the outdoor entertainment component to be located on the Boston’s Restaurant expansion area located at 40 South Ocean Boul evard. (Quasi- Judicial Hearing) Alan Ciklin, Attorney, stated they have spoken to Mr. Brannen’s l awyer and Mr. Dorling and requested to postpone this item to the J anuary 3, 2012 agenda and make an effort to reach out to Mr. Brannen and see if they can res olve the issue and satisfy him. Mr. Carney moved to postpone Item 9.B. to a date certain of Janua ry 3, 2012, seconded by Mr. Frankel. Upon roll call the Commission voted as fol lows: Mr. 11 12/13/11 Carney – Yes; Dr. Alperin – Yes; Mr. Frankel – Yes; Mrs. Gray – Yes; Mayor McDuffie – Yes. Said motion passed with a 5 to 0 vote. 9.C. WAIVER REQUEST/302 N.E. 7TH AVENUE: Consider a waiver request to Land Development Regulations (LDR) Section 4.6.7(E)(7), “Design Standards Matrix”, which requires signs be located at least 10’ from any property line, to permit the sign to be located 5’ from the front and side street property lines for 302 N.E. 7th Avenue. (Quasi-Judicial Hearing) Chevelle D. Nubin, City Clerk, swore in those individuals who wished to give testimony on this item. Mayor McDuffie asked the Commission to disclose their ex par te communications. The Commission had no ex parte communications to disclose. Paul Dorling, AICP, entered the Planning and Zoning project fi le #2012- 022 into the record. Mr. Dorling stated this item is before the Commission for appr oval of a waiver to LDR Section 4.6.7(E)(7) to permit a business sign within ten feet of both the front and side street property lines. He stated it is within five feet of both the south and east property lines and requires a waiver. The LDRs require a ten foot s etback. At its meeting of December 7, 2011, the Historic Preservation B oard (HPB) approved with conditions a Certificate of Appropriateness (COA) for the installation of a new freestanding sign and the Board recommended approval of the associated waiver. Staff recommends approval of the waiver request. Mayor McDuffie asked if anyone from the public would like to speak in favor or in opposition of the waiver request, to please come forwa rd at this time. There being no one from the public who wished to address the Commission re garding the waiver request, the public hearing was closed. No cross-examination or rebuttal. Dr. Alperin asked if this is approved can the applicant increa se it to the maximum size or can they make it so that it has to that siz e and no bigger. Mr. Dorling stated if the applicant came to HPB with a bigger sign that had the same dimensions; this waiver would apply to that. Dr. Alperin asked if the Commission c an make this waiver restricted to this size and not allow them to go to the maximum size. The City Attorney suggested that the Commission can make a condit ion that this applies to the sign that has already been approved cur rently by HPB. The City Attorney stated if they want to make a change in the size of t he sign they would go back to HPB but then they would also have to come back to the Commission to modify that condition. 12 12/13/11 It was the consensus of the Commission that this applies to the sign that was currently approved by HPB as evidenced in the photo that has be en provided to the Commission. For clarification, Dr. Alperin asked if this ordinance has any impact on bed and breakfast. Mr. Dorling stated it would not apply. The City Attorney reviewed the Board Order with the Commission w ho made findings according to their consensus (attached hereto is a co py and made an official part of the minutes). Mr. Carney moved to adopt the Board Order as presented subject t o the condition for the Certificate of Appropriateness (COA) that w as approved for the sign as it relates to the dimension and the size of the sign, seconded by Mr . Frankel. 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.D. ALLEY NAMING REQUEST: Consider a request to name the alley east of N.E. 3rd Avenue, running between N.E. 3rd Street on the south; a nd N.E. 4th Street on the north, as "Artists Alley". Randal Krejcarek, City Engineer, stated this item was initia ted by a resident of Delray Beach. The alley is a north-south alley l ocated east of N.E. 3 rd Avenue and running between N.E. 3 rd Street on the south; and N.E. 4 th Street on the north. The request is to name the alley in Pineapple Grove as “Artists Alley”. The Ci ty has a general policy to not rename streets. The City Manager stated the all ey is unique and currently they are addressed off 4 th and it would make more sense to have them addressed off the alley. Dr. Alperin stated he would like to hear from Pineapple Grove Association and the people who will be using that name on the street. He stated he does not feel the City should be making a decision based on one recommendation. Mr. Frankel expressed concern that this sets a precedent. Mr. Carney moved to postpone the alley naming request, seconded by M r. 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. 9.E. HOUSING REHABILITATION GRANT/CONTRACT AWARD: Award one (1) Housing Rehabilitation contract to the second lowest responsive bidder, All Phase Roofing & Construction, through the Disaste r Recovery Initiative (DRI) Program for 401 S.W. 10th Street in the amount of $32,4 22.65. Funding is available from 118-1960-554-49.19 (Neighborhood Services: Other Current 13 12/13/11 Charges/Housing Rehabilitation). Lula Butler, Director of Community Improvement, stated this item is to approve the award for a housing rehabilitation grant awarded to the second lowest responsive bidder. Mrs. Butler stated this property is locat ed at 401 S.W. 10 th Street. Staff recommends All Phase Roofing & Construction in the amount of $32,422.65. Mrs. Butler stated staff is using a professional in-house estimate to determine if we have good bids. The bids were advertised on August 9, 2011 and the bids were o pened on September 6, 2011. The City received four (4) bids and range betw een $21,000.00 and $55,000.00. Mrs. Butler stated staff uses is in-house policy to determine what is a fair bid because they do these rehabs with property owners stil l living in their homes and the policy serves to disqualify unreasonably low bids to protect ag ainst resulting in change order requests. She stated this bid was 38% below the in-house es timate. Staff consulted with Palm Beach County Housing and Community Development that su pplies these dollars. They agreed to allow the lowest bidder to withdraw his bid. Therefore, staff recommends awarding the bid to the second lowest responsive bidder in the amount of $32,422.65. Mr. Frankel moved to approve the Housing Rehabilitation bid to All Pha se Roofing & Construction (second lowest responsive bidder) in the amount of $32,422.65, 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; Mr. Frankel – Yes. Said motion passed with a 5 to 0 vote. 9.F. REQUEST FOR QUALIFICATIONS (RFQ) RESPONSES FOR ENGINEERING CONSULTANTS/CAPITAL IMPROVEMENT PROJECTS (CIP): Consider approval of the Engineering RFQ (RFQ# 2012-06) short list and authorization for staff to negotiate contracts with each firm on the short list. Project #12- 057. Randal Krejcarek, City Engineer, stated this item is for Comm ission approval for staff to enter into continuing contract agreements wit h five (5) engineering firms. Mr. Krejcarek stated staff advertised in October 2011 for a Request for Qualifications (RFQ) for projects in the Capital Improveme nt Program (CIP) as potential projects that would be handled underneath these continuing services. He stated thirty- four (34) firms responded and the committee unanimously agreed on the fol lowing five firms: Matthews Consulting, Kimley-Horn & Associates and Calvi n, Giordano & Associates, Corzo Castella Carballo Thompson Salman, and Wantman Group. Mr. Krejcarek stated since he has been with the City they hav e gone out for engineering RFQ’s in 1999, 2003, 2007 and 2011. He stated in 2003 staff chose five firms and two of the firms were new firms at the time and they did not perform up to standards and as a result ended up with three firms. Mr. Krejcarek stated this i s why staff is going with five (5) firms this time. Dr. Alperin expressed concern about some irregularities in t he scoring and ranking. Dr. Alperin stated when he reviewed the RFQ’s he notic ed that Craig A. Smith 14 12/13/11 has 3-D technology of finding underground problems. He stated if the re is a technology available that will avoid having that kind of problem and expense; he does not know why they were not ranked higher. Mr. Carney commented about the 3-D technology to find underground problems and asked if it is relevant. Mr. Krejcarek state d he does not feel it is relevant because the process staff uses they feel comfortable wit h and have been very successful with it. Mr. Krejcarek stated what staff found to be a better way o f handling and identifying where the underground utilities are is by doing soft di gs. He stated staff will layout the initial layout of the underground pipes, identify the area s where there is potential conflicts and then do soft digs to find that pipe wher e the conflict is going to be. Mr. Krejcarek stated staff has had very good success in the pas t few years doing it this way and noted that it is less costly doing it with the soft dig s. Mr. Krejcarek stated staff has been very successful in identifying existing facilities underground using this technique and staff feels very confident in the results that they get. Mrs. Gray asked if this group can be added to the list of name s. Mr. Krejcarek stated in their proposals there are other firms t hat also suggested that they were going to use that same technology. Dr. Alperin asked how they are getting it if Craig A. Smit h is saying they have exclusive rights to use it. Mr. Krejcarek stated he would have to research this. The City Manager stated you have to be careful choosing a firm based on one aspect of their service and perhaps technology should be included in the scoring. T he City Manager stated there are other factors as well in providing good quali ty service. The City Attorney suggested that if the Commission would like a ne w technology aspect to be weighted in this then the City would not acc ept any of these and give staff direction to go back out again. The City Attorney st ated we would have to do another RFQ with language like that in the RFQ to that everyone is bidding on ever ything equally. The City Manager asked if staff re-did the process how long would it take. Mr. Krejcarek stated it would take approximately three months. Dr. Alperin moved to approve the short list for the engineering RF Q to include the five firms and add Craig A. Smith to negotiate the contr acts, seconded by Mrs. Gray. Upon roll call the Commission voted as follows: May or McDuffie – Yes; Mr. Carney – Yes; Dr. Alperin – Yes; Mr. Frankel – Yes; Mrs. G ray – Yes. Said motion passed with a 5 to 0 vote. 15 12/13/11 9.G. REQUEST FOR QUALIFICATIONS (RFQ) RESPONSES FOR LAND SURVEYING CONSULTING SERVICES/CAPITAL IMPROVEM ENT PROJECTS (CIP): Consider approval of the Land Surveying Consulting Services RFQ (RFQ# 2012-07) responses short list and authorization to negotiate contra cts with each of the five (5) companies on the short list. Project #12-058. Randal Krejcarek, City Engineer, stated this is second of three RFQ’s that staff put out in October. Mr. Krejcarek stated this is for t he surveying continuing contract which staff received 22 responses. Staff is looking to ent er into an agreement with the following five (5) companies: Avirom & Associates, Inc ., Bruce Carter & Associates, Inc., Dennis J. Leavy & Associates, Inc., Wantman Gr oup, Inc. and Caulfield & Wheeler, Inc. Mr. Carney moved to approve the short list and authorization to negoti ate contracts with the short listed firms, seconded by Mrs. Gray. Upon roll call the Commission voted as follows: Mr. Carney – Yes; Dr. Alperin – Ye s; Mr. Frankel – Yes; Mrs. Gray – Yes; Mayor McDuffie – Yes. Said motion passed with a 5 to 0 vote. 9.H. REQUEST FOR QUALIFICATIONS (RFQ) RESPONSES FOR LOCAL ENERGY ASSURANCE PLANNING (LEAP) & TRAINING: Consider approval of the ranking of respondents to Request for Qualifications (RFQ) #2011-16 for Local Energy Assurance Planning & Training and authorization for sta ff to negotiate a contract with the top ranked firm. Doug Smith, Assistant City Manager, stated this item is to consider approval of a ranking of the respondents that we receive for a Reque st for Qualifications (RFQ) for Local Energy Assurance Planning & Training grant the City received. Mr. Smith stated only two firms responded to this Langton Associates, Inc. and EMC Engineers, Inc. (a subsidiary of Eaton Corporation). Mr. Smith stated the staff committee hears presentations from these firms and today the committee went through their rankings. Mr. Smith stated the overall rankings worked out with Langton Associates, Inc. as the number one ranked firm and EMC Engineers, Inc. as the second ranked firm. Mr. Smith stated although there was not a consensus in the ranking a mong the staff committee as a committee they recommend Commission authorizati on for staff to enter into negotiations first with Langton Associates, Inc. and if that contrac t does not work out to move onto EMC Engineers, Inc. He stated in either case the agreement will c ome back to the Commission for approval. Mr. Carney moved to approve the Request for Qualifications (RFQ) Responses for Local Energy Assurance Planning (LEAP) & Traini ng, seconded by Mr. Carney. Upon roll call the Commission voted as follows: Dr. Alp erin – Yes; Mr. Frankel – Yes; Mrs. Gray – Yes; Mayor McDuffie – Yes; Mr. C arney – Yes. Said motion passed with a 5 to 0 vote. 16 12/13/11 9.I. CONTRACT AWARD/O.T. SERVICES: Consider a contract award to O.T. Services in the amount of $31,920.00 annually for janitorial services a t the Delray Beach Golf Course. Funding is available from 445-4711-572-34.90 (D B Municip al Golf Course: Other Contractual Services). Mr. Frankel moved to approve the contract award to O.T. Services in the amount of $31,920.00 annually for janitorial services at the Delray Beach Golf Course, seconded by Mr. Carney. Upon roll call the Commission voted as fol lows: 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 8:41 p.m., the City Manager requeste d to move to Item 9.K. since Mr. Wilk is present. 9.K. PROPOSAL FOR A CONGRESS CORRIDOR MARKETING PLAN: Consider accepting a proposal for creating a strategic ma rketing plan for the Congress Avenue Corridor. The City Manager stated the City received a proposal from Mr. David Wilk for preparing a strategic marketing plan for Congres s Avenue and feels it would be a great step in the right direction. The City Manager stat ed the City has checked references on other projects they have done and received a positive response. Dr. Alperin stated the initial strategic marketing plan is going to be in the range of $7,500-$10,000.00. Mr. Wilk stated there will be other costs comi ng. Dr. Alperin stated he just wants everyone to be aware that this is not the total cost and there are other potential costs forthcoming. Mayor McDuffie stated a number of years ago he got his eye opened by some events that he attended with corporate relocators. He stat ed everyone has worked so diligently so that they could attract new business to Delr ay Beach. Mayor McDuffie stated it was an issue were three mayors were on the dais a nd talked to the gentleman about everything they did to prep their city for economic growth a nd then they switched places and they got up on the dais. Mayor McDuffie stated they informed them that the presentation was great and that they expect all of that before they g et off the plane. The City Manager stated it will be very valuable to have a national perspective and give the City a marketing approach. Dr. Alperin moved to accept the proposal for creating a str ategic marketing plan for the Congress Avenue Corridor, seconded by Mrs. G ray. Upon roll call the Commission voted as follows: Mrs. Gray – Yes; Mayor McDuffie – Yes; Mr. Carney – Yes; Dr. Alperin – Yes; Mr. Frankel – Yes. Said m otion passed with a 5 to 0 vote. 17 12/13/11 At this point, Mr. Wilk thanked the Commission for the opportunity t o work with the City and stated he has already had a meeting with the new CBRE broker who has listed the Office Depot property. Mr. Wilk stated he, the City Manager, and Mayor McDuffie discussed in the initial meetings they want t o go up the corridor all the way up to Atlantic Avenue and create a branding, marketing stra tegy, and a vision for that area that is going to bring the world to Delray Beach. Mrs. Gray asked if there is a deadline for when this plan will be completed. Mr. Wilk stated he would like to present something to the community at the end of January or the end of February. Mr. Wilk stated in about 30 da ys he would like to have an initial meeting to review progress and asked the Commiss ion to let him know whatever format is best to do that. At this point, the Commission moved to Item 9.J. 9.J. ANNUAL STATE OF THE CITY/CITIZEN'S ROUNDTABLE MEETING: Discuss options related to the Annual State of the City and Cit izen's Roundtable Meetings. The City Manager stated staff would like to get direction a nd offer possible options either in place of or in conjunction with the Town Hall meeti ng. Mr. Frankel stated he believes staff puts a great deal of time and effor t into the presentations and the work. He stated in his view for the very few people who turn out it is not a good time spent. Mr. Frankel stated last year i t was the same time as the State of the Union Address and feels this hurt turnout and the fact tha t it starts at a late hour people are tired and they do not want to be somewhere for three hours. Mrs. Gray stated there is more staff present than residents but she would like to hear the other options. Mr. Carney concurred with comments expressed by Commissioner Frankel and Commissioner Gray and stated the meetings are very long and staff puts in hundreds of hours to do this. Mr. Carney stated the format should be more concise and follow up which more people can access through links on the inte rnet may be a better use of everyone’s time. The City Manager suggested bringing back the Citizen Summit as part of the goal setting and stated this is more productive. Dr. Alperin stated it is time to look at new technology for other ways of getting the input. He stated every other week there is a m eeting and potential for people to attend and speak. Dr. Alperin stated the City puts out plenty of communicat ion. Mayor McDuffie concurred with comments expressed by the re st of the Commission. 18 12/13/11 Rich Reade, Sustainability Officer, introduced Peak Democracy via conference call and this is a tool that the City Manager brought back from another conference. Mr. Reade stated staff had the opportunity to discuss this with Peak Democracy and noted this is an exciting tool to attract comment s from people’s homes. Mr. Reade stated this would be external and monitored by this company. Mike from Peak Democracy gave a brief PowerPoint presentat ion regarding the product. Mr. Frankel stated not only is there a cost savings but this i s something that works year-round that provides the Commission and the City bett er information. Mr. Frankel stated he would support the annual cost and cancel the Citiz en’s Roundtable Meeting. Mr. Carney stated the Roundtable has some merit. Dr. Alperin asked if the Commission can respond to the community through this. Mr. Reade stated it would be an overall response to the issue itself. Mr. Reade stated this tool would give people the opportunity to comme nt as though it were a public hearing; it would be closed prior to the meeting and provi ded to the Commission as backup and they would have an additional resource as well. Mrs. Gray states she supports the open Town Hall meeting but she would still like to see something where the Commission can invite peop le because everyone does not have a computer. Brief discussion ensued between staff, the Commission, and the representative from Peak Democracy. After brief discussion, it was the consensus of the Commission to move forward with this and cancel the meeting on January 24, 2012. At this point, the time being 7:04 p.m., the Commission moved to the dul y advertised Public Hearings portion of the Agenda. 10. PUBLIC HEARINGS: 10.A. ORDINANCE NO. 47-11 (FIRST READING/FIRST PUBLIC HEARING): City-initiated amendment to the Land Development Regulations (LDR ) Sections 4.4.6 “Medium Density Residential (RM) District”, 4.4.9 “Gene ral Commercial (GC) district”, 4.4.12 Planned Commercial (PC) District, 4.4.13 “Central Busines s (CBD) District” and 4.4.28 Central Business District–Railroad Corridor, t o provide that assisted living facilities will be allowed in the same manner as mult iple family residential developments with respect to the number of units and density. If passed, a second public hearing will be held on January 3, 2012. 19 12/13/11 The caption of Ordinance No. 47-11 is as follows: AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AMENDING THE LAND DEVELOPMENT REGULATIONS, BY AMENDING SECTION 4.4.6, “MEDIUM DENSITY RESIDENTIAL (RM) DISTRICT, SUBSECTION (D), “CONDITIONAL USES AND STRUCTURES ALLOWED”, SECTION 4.4.9, “GENERAL COMMERCIAL (GC) DISTRICT”, SUBSECTION (B), “PRINCIPAL USES AND STRUCTURES PERMITTED”, SECTION 4.4.9, “GENERAL COMMERCIAL (GC) DISTRICT”, SUBSECTION (G)(3)(4), “MULTIFAMILY DWELLING UNITS”, SECTION 4.4.12, “PLANNED COMMERCIAL (PC) DISTRICT”, SUBSECTION (G), “SUPPLEMENTAL DISTRICT REGULATIONS”, SECTION 4.4.13, “CENTRAL BUSINESS (CBD) DISTRICT”, SUBSECTION (D), “CONDITIONAL USES AND STRUCTURES ALLOWED”, SECTION 4.4.28, “CENTRAL BUSINESS DISTRICT-RAILROAD CORRIDOR (CBD-RC)”, SUBSECTION (D), “CONDITIONAL USES AND STRUCTURES ALLOWED, TO ADD ASSISTED LIVING FACILITIES TO THE LIST OF ALLOWED USES IN THE SAME MANNER AS MULTIPLE FAMILY RESIDENTIAL USES IN ORDER TO BRING CONSISTENCY BETWEEN THE LAND DEVELOPMENT REGULATIONS AND STATE AND FEDERAL LAWS, PROVIDING A SAVING CLAUSE, A GENERAL REPEALER CLAUSE, AND AN EFFECTIVE DATE. (The official copy of Ordinance No. 47-11 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 i s to add assisted living facilities to the list of allowed uses in the same manner as multi-family uses to bring consistency between the LDRs, State and Federa l law. Similar recent amendments were processed by the City Commission April 15, 2008 and J anuary 19, 2010 which allowed assisted living facilities to be accommodated s imilarly with respect to number of residents and units to either single-family duplex or multi-family uses in zoning districts where these uses are allowed. Mr. Dorling stat ed subsequently it was 20 12/13/11 discovered that we did not accommodate in the same manner as these multi-family uses in two situations; those that apply to special regulations that allow for increased density in certain zoning districts and certain regulations which apply to overlay distr icts. At its meeting of November 21, 2011, the Planning and Zoning Board considered this item and recommended approval with a 6 to 1 vote (Gerr y Franciosa dissenting). Mayor McDuffie declared the public hearing open. There being no one from the public who wished to address the Commission regarding Or dinance No. 47-11, the public hearing was closed. Dr. Alperin moved to approve on First Reading/First Public Hea ring, seconded by Mr. Carney. Upon roll call the Commission voted as foll ows: Mrs. Gray – Yes; Mayor McDuffie – Yes; Mr. Carney – Yes; Dr. Alperin – Yes; Mr. Frankel – Yes. Said motion passed with a 5 to 0 vote. 10.B. ORDINANCE NO. 48-11 (FIRST READING/FIRST PUBLIC HEARING): Consider a city-initiated amendment to Land Development Regulat ion (LDR) Section 4.3.3, “Special Requirements for Specific Uses”, by enacting a new Subsection 4.3.3(AAAA), “Simulated Gambling Devices”, in order to pr ohibit use of same and to enact a new definition of, “Simulated Gambling Devices ”. If passed, a second public hearing will be held on January 3, 2012. The caption of Ordinance No. 48-11 is as follows: AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AMENDING THE LAND DEVELOPMENT REGULATIONS OF THE CITY OF DELRAY BEACH BY AMENDING SECTION 4.3.3, “SPECIAL REQUIREMENTS FOR SPECIFIC USES”; BY ENACTING A NEW SUBSECTION 4.3.3(AAAA), “SIMULATED GAMBLING DEVICES”, IN ORDER TO PROHIBIT USE OF SAME AND AMENDING APPENDIX “A” TO ENACT A NEW DEFINITION OF “SIMULATED GAMBLING DEVICES”; PROVIDING A GENERAL REPEALER CLAUSE, A SAVING CLAUSE, AND AN EFFECTIVE DATE. (The official copy of Ordinance No. 48-11 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. 21 12/13/11 Paul Dorling, AICP, Director of Planning and Zoning, stated this is a city- initiated amendment to the LDRs that will prohibit simulated ga mbling devices and their related places of business sometimes referred to as intern et or sweepstake cafés. Mr. Dorling stated these businesses utilize simulated gambling de vices and have been referred to as cyber cafés, sweepstake cafés, or internet cafés. He stated the concept is to sell internet access or telephone cards and then enter sweeps take systems on computers at a business and then enter games that they win ultimately cash p rizes. Mr. Dorling stated this circumvents the current gambling laws because the purcha se of computer time or phone cards to enter sweepstakes on a gaming website is not payi ng to play a game for money. Staff recommends that we prohibit them at this time. Mr. Dorling stated this is a difference between adult gaming facilities which are allowed in the City as a conditional use in certain zoning districts and those are different in that we limit those gaming facilities to maxi mum retail values of individual prizes to .75 a game. At its meeting of November 21, 2011, the Planning and Zoning Board 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. 48-11, the public hearing was closed. Mr. Frankel moved to approve on First Reading/First Public Heari ng, seconded by Mrs. Gray. Upon roll call the Commission voted as follow s: Mayor McDuffie – Yes; Mr. Carney – Yes; Dr. Alperin – Yes; Mr. Fr ankel – Yes; Mrs. Gray – Yes. Said motion passed with a 5 to 0 vote. At this point, the time being 7:11 p.m., the Commission moved to Item 11, Comments and Inquiries on Non-Agenda Items . 11.A. City Manager’s response to prior public comments and inquiries. The City Manager stated at the last meeting Dr. Kirson was concerned about homeless people on the beach and connected that with the larg e number of rehab and sober houses in the city. In the Police Department’s respons e Delray Beach is recognized as a center of recovery in some sources; however, the Police Department has made no connection between the recovery population and homeless peopl e on the beach. The Police Department has and continues to enforce applicable cit y ordinances and Florida State Statutes as they relate to beach violations wit h the most recent arrest occurring on December 12 th camping on the beach in the 200 block of South Ocean Boulevard. The Police Department records indicate that from Au gust 6, 2011 – December 12, 2011 a total of 16 arrests have been made for camping on the beach. With respect to the reference to Commissioner Taylor’s comm ents about the facility the County is opening up as a homeless resource c enter in the near future off 22 12/13/11 45 th Street in West Palm Beach, the City Manager stated that facility will only accept people if they are wanting to end their homelessness otherwis e they will not accept them at that facility. The City Manager stated with respect to the parking prob lems on the swales near the intersection of Casuarina Road and Venetian Dri ve, the City has installed “No Parking” signs on the east side of Venetian Drive between Cas uarina and Langer Way. He stated this area is unique in that there are multiple condos and apartments with back out parking. The City Manager stated Engineering will get with the Police Department to determine if additional “No Parking” signs are needed for saf ety reasons. Lastly, the City Manager stated the audio for the October 11, 2011 Workshop meeting is posted on the website and we will continue to place our Workshop audios on the website so that people can listen to them if they wish to do so. At this point, Mr. Frankel asked if any control or elimination of rehabilitation facilities is covered by the American Disab ility Act (ADA). The City Attorney stated people who are in recovery are covered by the ADA. Mr. Frankel stated under current case law any comments could be viewed discriminatory in nature in regards to that. The City Attorney stated under current case law if y ou take action against a particular group that is protected under the ADA then that would be discri minatory. 11.B. From the Public. 11.B.1. Cary Glickstein, 1118 Waterway Lane, Delray Beach, FL 33483 (current Chairman of the Planning and Zoning Board, Developer by Trade, a former Land Use lawyer, current trustee of the BPOA), stated he has lived in the beach area for the past 20 years and is distressed over what i s happening in the neighborhoods under the guise of transient housing. Mr. Glickstein sta ted instead of Delray Beach being recognized for its wonderful assets our city is now known as the transient rehab capital of the southeast. He stated transie nt housing in the residential neighborhoods must be stopped. In his opinion, Mr. Glickstein stated t ransient housing belongs only where transient lodging is currently allowed not in si ngle-family or multi- family zoned properties. Mr. Glickstein urged the Commission t o ensure residential neighborhoods in general in the beach area specifically will not be used for transient housing. 11.B.2. Gary Eliopoulos, 314 N.W. 7 th Street, Delray Beach, FL 33444, briefly spoke about Ordinance No. 20-09 and the definition of single-family. Mr . Eliopoulos suggested looking at the regulations again and asked if this Commiss ion that worked so hard in 2009 failed with regards to what the spirit of the Code was w hich was a maximum of six times per house; however, the ordinance is being interpreted another way. Mr. Eliopoulos stated if outside lawyers have indicated tha t the City got it wrong then he would agree and urged this Commission to get outside counsel t o look at this again and get it right. He stated this is in the RM zoning di strict and does not feel the residents have to tolerate this. 23 12/13/11 11.B.3. Mary Renault, 1017 Bucida Road, Delray Beach, FL 33483, speaking on behalf of the Beach Property Owners Association (BPOA), stated they are asking for support and strong action from the City in preserving their si ngle-family neighborhoods. Ms. Renault stated for many years Delray Beach has drifted for a variety of reasons into being a group home and transient housing magnet for the entire nation. In July 2009, the City added a transient residential use section to the L DRs and feels this section does not go far enough in preserving the single-family nei ghborhoods. Ms. Renault stated its interpretation could be strained to allow up to six rental turnovers on each bed so with three residents allowed could have a transient use of up to 18 unrelated individuals per year but they believe the intent of this ordinance was for six short term leases not 18. She stated too many unrelated adults and excess ive turnover rate destroy the stability and safety of the neighborhood. Ms. Renault urged the Commission to take another look at the regulations and act boldly to protect the neighborhoods. 11.B.4. Warren Roy, 329 Andrews Avenue, Delray Beach, FL 33483 (member of the BPOA and a CPA), stated these transactions are structured in not-for-profit organizations and when that happens the property comes off the tax r olls and the City and County loses revenue and also have additional drain on services such as fire and police. Mr. Roy stated this is not just a transient housing issue but it is also a financial issue which affects the City and the County. He urged the Commission t o address this issue regarding the zoning. 11.B.5. 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), stated three unrelated individuals mean that if you have three brothers living in a unit that is considered one you then c an have a family of four related (that is two); you can have a couple (that is thre e). Dr. Kirson stated you could have 12-14 in a unit with just three unrelated. Dr. Kirson state d the problem is the law and asked if we can by-pass a handicap law. 11.B.6. Brad Winney, 1515 N. Swinton Avenue, Delray Beach, FL 33444, stated he lived in San Francisco for ten years and has seen how ba d this problem can get. Mr. Winney stated this is transient house next door to his and comment ed about the six cars coming in and out and the parking. Mr. Winney asked if the lowe ring of the appraised value of his house is not an effect of this. Also, Mr. Winne y stated that he had the chance to visit the Starbucks on Federal Highway and this is a very serious is sue. 11.B.7. Missy Corey, 1125 Waterway Lane, Delray Beach, FL 33483, stated this summer she had a hip replacement and was unable to fly nor th for vacation so she took the train. Ms. Corey stated the Amtrak has advertisements on i t that tells you about every town you pass by. She stated in Delray Beach it does not say that we are an All- America City, etc. but it says that we are the “Drug Rehab Capital of t he Southeast.” 11.B.8. Joann Peart, 107 N.W. 9 th Street, Delray Beach, FL 33444, stated six times a year is too many to control because Code Enforcement has a skeleton crew because of the budget and nobody checks. Mrs. Peart stated unle ss the neighbors are 24 12/13/11 actually calling nobody knows how many people are there. She suggested that if it were 1-2 times a year it would be easier to follow and easier if the neighbors called to be able to check rather than Code Enforcement. Mrs. Peart stated the neighbors go by and have seen cars from North Carolina, Alabama, and New York one week and the next week there are cars from other states. 11.B.9. Joe Collard, 1004 Brooks Lane, Delray Beach, FL 33483, stated this is not a sober house but is a drug rehab house so people from all over the country come in with drug records and they are within 2,000 feet of a school. Mr. Colla rd commented about the ADA issue and stated after research he found that there was a lawsuit that was lost by the City of Boca. However, Mr. Collard stated it is not required that the City should allow a single-family house next to somebody who purchased a single-family house to be utilized as a for-profit. Mr. Collard stated somebod y has decided to purchase a single-family house next to somebody with a family that ha s a single-family house and turn it into a business. He urged the Commission to protect the residents. 11.B.10. Joanne Shear, 701 North Ocean Boulevard, Delray Beach, FL 33483, stated she had a conversation with a prominent real estate broker in Delray Beach and recently purchased this home (third lot north of the public beach). Ms. Shear asked the realtor how they would appraise the value of her home if three or mor e of these facilities moved within walking distance of her home. Mayor McDuffie stated normally they do not respond the same ni ght but this is a special circumstance. He stated normally all of the people who came and spoke would receive a written response from the City Manager. Howeve r, Mayor McDuffie stated he wanted everyone to know the hundreds of hours that everyone on this Commission as well as multiple Commissions several people a go spent on crafting three ordinances to try to address this issue. Mayor McDuffie stated t hey looked at zoning and commented about the City of Boca losing $2 million in a lawsuit w here they tried to zone this type of use out of an area in the city. The City Attorney ’s office, the City Manager’s office, and the City Commission took a look at what they could do to acc omplish most of the things that most of the people have spoken about tonight. Mayor McDuffie stated at the time everyone believed they came up with something that was going to give them the opportunity to control unscrupulous operators. He stated in a crow d of this size someone present has been in somewhere for rehabilitation for some ment al problem or substance abuse problem and there is a place for those and the people p resent do not want it to be their next door neighbor or the neighbor down the street. Mayor McD uffie stated if these people keep their property up like everyone else the impa ct to value is zero. In addition to crafting the ordinances, Mayor McDuffie stated he made t rips to Washington, Tallahassee, and have talked to Federal and State Legislatures and the Federal people stated this is a State issue and not a Federal issue and they cannot seem to find anyone in the State who wishes to step up and regulate this type of use . Mayor McDuffie reassured everyone that the Commission will go back and review the ordinances , retain counsel, and will do everything to protect the residents, homes, and children a s they did before when they thought they made a dent and came up with something that would curtail these uses. 25 12/13/11 Mr. Frankel stated Maria Herrera spoke to him about the enfor cement issue and how nothing has been done and he questioned it then. Mr. Frankel s tated now hearing more comments about vacation rentals and transient homes he is very concerned about Ordinance No. 29-09. Mr. Frankel stated reviewing the notes fr om June 2009 he and Mayor McDuffie did not have any kind of support for a lower number . Therefore, Mr. Frankel asked the City Attorney to bring this ordinance back to the City Commission either at the next meeting or whatever the immediate time period could be. Mr. Carney stated he listened to hours of that meeting regarding Ordinance No. 29-09 and how it was being interpreted as it related to transient housing and reviewed a number of cases provided by the City Attorney and ot hers. Mr. Carney stated he thinks there is precedent to move the number to three ti mes. He stated it is his understanding that staff has re-reviewed the minutes of that me eting and suggested that the ordinance be re-reviewed as well because the transient housing is an issue. Mr. Carney stated there is an important balance between the needs of those that need to be protected under the law and the others that need to be protected under the law which are the single-family owners of residences. Mr. Carney urged staff to go back and review the ordinances based on the case law that is now out there. Mr. Carn ey stated regarding the dwelling the turnover is six times not per bed. Mr. Carney sta ted this is a city-wide issue and is hopeful the City will take initiative soon. Dr. Alperin stated this is not a new issue and noted approximately 20 years ago former Police Chief Rick Lincoln and he created the Drug Ta sk Force to deal with some of the issues. Dr. Alperin encouraged the public to contac t the Commission and the City Attorney’s office with any ideas that might be useful. Mrs. Gray stated this is an issue all over the City and she is more than happy to revisit the ordinance. Mrs. Gray stated she was not par t of the Commission at that time but believes the City needs to review and enforce t he laws that we have put in place and she looks forward to working with everyone. Mayor McDuffie stated some residents emailed him and noted tha t some of them should have a response back if they have not seen it alread y. Mayor McDuffie stated he emailed back most of the people informing them that he does not believe the City will be able to handle this at a municipal level. Ma yor McDuffie reiterated that he made trips to Tallahassee and Washington and in two separate y ears he spoke about pill mills and unscrupulous rehab centers. He stated they got some r elief in the pills mills with pharmaceutical registration laws and other things so that t he Sherriff’s Department has been able to make a good dent in the pill mills because they received Legislative support to do so. Mayor McDuffie stated the City of Delray Be ach has received zero Legislative support to do anything with elicit rehabilitat ion centers. He stated he sent a list of the entire Legislative and Congressional Delegations that support us to everyone who emailed him. Mayor McDuffie suggested that everyone who spoke this evening email and call those Legislators and let them know the municipal ities need assistance from the State in being able to come out with regulations from a State level. Mayor McDuffie stated there is no regulatory body that claims juris diction over this type of use. 26 12/13/11 McDuffie stated the City of Delray Beach will work diligentl y on behalf of the residents to do a better job on these three ordinances but the City needs h elp. Mayor McDuffie stated the City sent to the State Legislative Delegations al l of the important legislative issues for this upcoming year and asked all the legislators to reply to the City on where they stood on each one of these issues. Mayor McDuffie stated S tate Representative Lori Berman was the only legislator who responded. He stated the C ity may spend some more tax money in doing this because there are broad issues with enforcement. He stated if the City does this with sworn officers it will be a tre mendous burden on the sworn officers so they will have to add people to the Code Enforcement staff and that costs money. Mayor McDuffie stated the City will do what it ta kes given the restrictions they have from a revenue standpoint to make this right. At this point, the time being 9:20 p.m., the Commission moved to Item 12, First Readings. 12. FIRST READINGS: 12.A. ORDINANCE NO. 50-11: Consider an amendment to Chapter 34, “Elections”, by amending Section 34.16, “Filing of Nominating Petitions ”, to modify the number of registered voters required to sign a petition to grant e ligibility of a candidate to qualify to run for office. If passed, a public hearing will be held on Januar y 3, 2012. The caption of Ordinance No. 50-11 is as follows: AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AMENDING CHAPTER 34, “ELECTIONS”, OF THE CODE OF ORDINANCES BY AMENDING SECTION 34.16, “FILING OF NOMINATING PETITIONS”, TO MODIFY THE NUMBER OF REGISTERED VOTERS REQUIRED TO SIGN A PETITION TO GRANT ELIGIBILITY OF A CANDIDATE TO QUALIFY TO RUN FOR OFFICE, PROVIDING A SAVING CLAUSE, A GENERAL REPEALER CLAUSE, AND AN EFFECTIVE DATE. (The official copy of Ordinance No. 50-11 is on file in the City Clerk’s office.) The City Attorney read the caption of ordinance and this was bas ed on the comments at the Workshop meeting where the Commission wanted the amount of signatures to be modified from the 1% to a set number of 250. The City Attorney stated this ordinance also provides for is that this would be effective af ter the March 13, 2012 election. Dr. Alperin moved to approve Ordinance No. 50-11 on FIRST Reading with modification to be effective January 3, 2012, seconded by Mr. Fran kel. Upon roll 27 12/13/11 call the Commission voted as follows: Mayor McDuffie – Yes; M r. Carney – Yes; Dr. Alperin – Yes; Mr. Frankel – Yes; Mrs. Gray – Yes. Said moti on passed with a 5 to 0 vote. 13. COMMENTS AND INQUIRIES ON NON-AGENDA ITEMS. 13.A. City Manager The City Manager had no comments or inquiries on non-agenda items. 13.B. City Attorney The City Attorney stated any ordinance staff does that modif ies the LDRs will have to go in front of the Planning and Zoning Board. The next Planning and Zoning Board meeting is scheduled for January because the one for Dec ember was cancelled. Therefore, the City Attorney stated the ordinance will come before the City Commission the second meeting in January or the first meeting in February . The City Attorney stated this would give staff time as far as a change in the ordinance to seek consultation with outside counsel to make sure that staff drafts an ordinance that wil l hopefully withstand any challenges and will be constitutional as well. 13.C. City Commission 13.C.1. Dr. Alperin Dr. Alperin suggested that the Commission send Representative Lori Berman a thank you letter for responding and a copy of that letter sent to every other Legislator on the Delegation. 13.C.2. Mr. Carney Mr. Carney had no comments or inquiries on non-agenda items. 13.C.4. Mrs. Gray Mrs. Gray asked for a confirmation regarding the wastewater meeting Thursday, December 15, 2011. Mr. Carney will check to see when this meeting is. 13.C.4. Mr. Frankel Mr. Frankel stated on Saturday from 8:00 a.m.-10:30 a.m. and 10:30 a.m. - 2:00 p.m. the Caring Kitchen Holiday food packing by the Sisters of Sunshine organization will be held. He announced if anyone is interested to c ontact the sistersofsunshine@gmail.com . 28 12/13/11 Secondly, Mr. Frankel stated the Menorah lighting will be held at 6:00 p.m. on Tuesday, December 20, 2011 at Old School Square. Mr. Frankel stated he was at the Downtown Development Authorit y (DDA) meeting yesterday and they have concerns about the parking study. He stated the Charrette has been postponed several times and he had concerns about emails about employee parking plans that he sent in October. Mr. Frankel stated the City has a Parking Management Specialist who he thought would come up with som ething and Mr. Hasko was answering the questions. Mr. Frankel expressed concern w ith what is going with the Parking Management Specialist position. Mayor McDuffie stated he was called and emailed and had a me eting with one of the Parking Management Advisory Board (PMAB) members and t here is a lot of dissatisfaction. He stated there were a couple of other things recommended and one was an employee parking plan to park them on the top two floors of t he Old School Square Parking Garage and get them off of Atlantic Avenue. The side str eet parking and meters downtown were discussed with one hour free and charged after that and multi-purpose meters. Mr. Frankel stated we have had this plan for a long time and nothi ng has been done. The City Manager stated many small things have b een done and it was supposed to be phased out. Lastly, Mr. Frankel wished everyone a Happy New Year. 13.C.5. Mayor McDuffie Mayor McDuffie stated he was approached this evening about a Children’s Garden in Delray and suggested that they check with Ca son United Methodist Church because they have their community garden. Secondly, Mayor McDuffie commented about the South Central Regiona l Wastewater Treatment and Disposal Board (SCRWTDB) about whe ther the Commission is going to be there on December 15 th . Mayor McDuffie stated the Christmas parade was well attended. Mayor McDuffie stated there was so much focus on the New York Times article that calls Delray Beach “The Drug Capital of t he World” and then articles come out like the one from the Boston Globe that talked about what a wonderful place this is. Mayor McDuffie stated if the Beach Property Owners’ Association (BPOA) puts in a place like Hanley Hazelden and maintains t he grounds there is no real estate impact negatively to that whatsoever. Mr. Carney stated any group housing is all about the operator. Mayor McDuffie stated the City needs help with regulation out of Tallahassee. 29 12/13/11 Mayor McDuffie commented about the Chamber of Commerce. Lastly, Mayor McDuffie wished everyone a Merry Christmas, H appy Hanukkah, and a Happy New Year. There being no further business, Mayor McDuffie declared the m eeting adjourned at 9:45 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 December 13, 2011, which Minutes were formally approved and adopted b y 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 wil l become the official Minutes only after review and approval which may involve some amendme nts, additions or deletions as set forth above. City Commission Meeting on December 13, 2011; item 9.A. City Commission Meeting on December 13, 2011; item 9.A. City Commission Meeting on December 13, 2011; item 9.A. City Commission Meeting on December 13, 2011; item 9.A. City Commission Meeting on December 13, 2011; item 9.A. City Commission Meeting on December 13, 2011; item 9.A. City Commission Meeting on December 13, 2011; item 9.A. City Commission Meeting on December 13, 2011; item 9.A. City Commission Meeting on December 13, 2011; item 9.A. City Commission Meeting on December 13, 2011; item 9.A. City Commission Meeting on December 13, 2011; item 9.A. City Commission Meeting on December 13, 2011; item 9.A. City Commission Meeting on December 13, 2011; item 9.A. City Commission Meeting on December 13, 2011; item 9.A. City Commission Meeting on December 13, 2011; item 9.A. City Commission Meeting on December 13, 2011; Item 9.C. City Commission Meeting on December 13, 2011; Item 9.C. City Commission Meeting on December 13, 2011; Item 9.C. WHEREAS , Martin Luther King, Jr. was born on January 15, 1 929, in Atlanta, Georgia, and dedicated his life to all Americans being able to enjoy the freedom guaranteed every citizen under th e United States Constitution; and WHEREAS , January 16, 2012, will be observed as Martin Luther King, Jr. Day in honor of the memory and ideals of Dr. King; and WHEREAS , Martin Luther King, Jr. labored tirelessly to obt ain equality of opportunity for all Americans; and WHEREAS , Dr. King was instrumental in the advancement of equality for all Americans; and WHEREAS , January 16 th should serve as a reminder to each of us of the sacrifices made by some Americans in order to s ecure the rights of all Americans. NOW, THEREFORE, I, NELSON S. McDUFFIE, Mayor of the City of Delray Beach, Florida, on behalf of the City Commission do hereby proclaim January 16, 2012 as MARTIN LUTHER KING, JR. DAY in the City of Delray Beach, and urge all citizens to reflect upon the efforts and sacrifices made by Dr. King on behalf of all Am ericans and join in the celebration of his contributions to the struggle fo r peace and freedom for our nation and throughout the world. IN WITNESS WHEREOF , I have hereunto set my hand and caused the Official Seal of the City of Delray Beac h, Florida, to be affixed this 3 rd day of January, 2012. ___________________________ NELSON S. McDUFFIE MAYOR WHEREAS, the Charter and the Code of Ordinances of the City of Delray Beach, Florida, provides for the calling of a First Nonpar tisan Election for the purpose of electing two (2) City Commissioners and the City Commission has by resoluti on authorized a Special Election; and WHEREAS , pursuant to said Charter and Code of Ordinances p rovisions the City Commission deems it necessary to call for the First Nonpartisan Election on the second Tuesday of March each year and a Special Election at this time. WHEREAS , a notice is hereby given calling for a special el ection on March 13, 2012, to vote on a referendum question set forth in Ordinance No. 44-11 regarding amending 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, which requires consent of the majority of the voters voting in the election. NOW, THEREFORE, I, NELSON S. MCDUFFIE, Mayor of the City of Delray Beach, Florida, on behalf of the City Commis sion, do hereby call for the First Nonpartisan Election and a Special Election to be held on Tuesday, March 13, 2012, between the hours of 7:00 a.m. and 7:00 p.m., at all the precincts and polling places in the Cit y of Delray Beach as designated by the Supervisor of Elections. ALL QUALIFIED ELECTORS of the City of Delray Beach, Florida, shall be qualified to vote in such election. ______________________________ NELSON S. MCDUFFIE MAYOR MEMORANDUM TO:Mayor and City Commissioners FROM:David T. Harden, City Manager DATE:December 21, 2011 SUBJECT:AGENDA ITEM 7.A. - REGULAR COMMISSION MEETING OF JANUARY 3, 2012 GOVERNMENT FINANCE OFFICERS ASSOCIATION AWARD PRESENTATION ITEM BEFORE COMMISSION Government Finance Officers Association Award – Certificate of Achievement for Excellence in Financial Reporting MEMORANDUM TO:Mayor and City Commissioners FROM:Linda Karch, Director of Parks and Recreation THROUGH:David T. Harden, City Manager DATE:December 27, 2011 SUBJECT:AGENDA ITEM 7.B. - REGULAR COMMISSION MEETING OF JANUARY 3, 2012 TURKEY TROT 2011 RECOGNITION OF SPONSORS PRESENTATION ITEM BEFORE COMMISSION Parks and Recreation will be presenting awards to t he sponsors who helped make the 25th Annual Turkey Trot 5K Run and Health Walk a success. BACKGROUND This award is being presented in recognition of the sponsors who donated their time and in-kind services to help make the 25th Annual Turkey Trot 5 K Run and Health Walk a success. The following sponsors will be recognized: Grimes Events & Party Tents, Crossfit Delray Beach, Bob's Printing, and RoadID. This event takes place every year in November at An chor Park and the proceeds from the Turkey Trot benefit the "Keith Straghn Feed the Hungry Thanksgi ving Drive" for needy families of Delray Beach, Boynton Beach and Boca Raton. Intelligent Waste Collection System by BigBelly Solar The City of Delray Beach January 3, 2012 2 BigBelly Solar •BigBelly Solar is the sole manufacturer of this Intelligent Waste Collection System and their Solar Powered Compactors. •No other companies produce a solar •No other companies produce a solar powered compactor. It is a patented technology. •Waste Management is a distributor in the State of Florida. 3 Advantages of the System •Helps keep public spaces clean •Reduces operational cost •Tech Savvy –provides real-time status via web-based management console •Powered by the Sun •Made of Recycled Materials •Small, but with huge capacity 4 More Advantages •Reduces Carbon Footprint •Frees current staff –allows other duties •Creates a Branding Opportunity •City identified 180 possible sites •Increases City’s sustainable options •Helps Delray Beach become a Green City USA 5 Parks and Public Facilities Modern ProblemModern Solution 6 The Avenue and Pineapple Grove Modern ProblemModern Solution 7 Beach Litter and Birds Modern ProblemModern Solution 8 Real-time Data & Analysis to Optimize Collections 9 Software –Wireless Monitoring Compaction with information , provides: •Significant capacity increase, 5x •Overflow elimination •Up to 80% collection reduction Provides on-demand dashboard •Use data to optimize routes, collection frequency and staffing •Central visualization of “network” status •Serves as collections audit tool Data Commands Analysis Reports Insights Transparency Auditing Management Console Command Center System Architecture Support Remote Data Commands Console Stations Components Software Service permeates the entire System, i ncluding: •The Management Console, driven by data stored and analyzed in the Command Center •The functions of the Stations, based on data analyz ed and commands given by the Command Center •Software helpdesk support Remote Settings Inventory Mgmt WASTE MANAGEMENT PROPOSAL to the to the City of Delray Beach 12 Option A •WM to provide BigBelly Solar Intelligent Waste & Recycling System consisting of: •100 BigBelly Single Stations –40 stations in 2012 –40 stations in 2013 –20 stations in 2014 •Web-based CLEAN Management Console •WM provides maintenance of stations 13 $600,000 Value to City •Reduces litter •Reduces operational cost for City •City designs the Wrap •Creates “Branding Opportunity” •Beautifies current unsightly containers •Adds to City’s Sustainability options 14 Our Request WM request the City extend the current Franchise Agreement for five years with mutually agreed upon five-year options. The City will own the stations at the end of the initial five year term with the option to renew the software services provided by BigBelly Solar. 15 Option B •WM to provide BigBelly Solar Intelligent Waste & Recycling System consisting of: •125 BigBelly Single stations –50 stations in 2012 –45 stations in 2013 –30 stations in 2014 •Web-based CLEAN Management Console •WM provides maintenance of stations 16 $750,000 Value to City •Reduces litter •Reduces operational cost for City •City designs the Wrap •Creates “Branding Opportunity” •Beautifies current unsightly containers •Adds to City’s Sustainability options 17 Our Request WM request the City extend the current Franchise Agreement for eight years with mutually agreed upon five-year options. The City will own the stations at the end of the initial five year term with the option to renew the software services provided by BigBelly Solar. 18 Option C •WM to provide BigBelly Solar Intelligent Waste & Recycling System consisting of: •150 BigBelly Single stations –75 stations in 2012 –50 stations in 2013 –25 stations in 2014 •Web-based CLEAN Management Console •WM provides maintenance of units 19 $900,000 Value to City •Reduces litter •Reduces operational cost for City •City designs the Wrap •Creates “Branding Opportunity” •Beautifies current unsightly containers •Adds to City’s Sustainability options 20 Our Request WM request the City extend the current Franchise Agreement for ten years with mutually agreed upon five-year options. The City will own the stations at the end of the initial five year term with the option to renew the software services provided by BigBelly Solar. 21 •WM is an excellent corporate citizen - we sponsor many Delray Beach community events and organizations. •Service to the community is excellent Added Value of the Waste Management Partnership •Service to the community is excellent •WM is highly cooperative with DB staff •We immediately correct operational errors Waste Management Values our Partnership with the City of Delray Beach 22 23 MEMORANDUM TO:Mayor and City Commissioners FROM:David T. Harden, City Manager DATE:December 28, 2011 SUBJECT:AGENDA ITEM 8.A. - REGULAR COMMISSION MEETING OF JANUARY 3, 2012 RESOLUTION NO. 01 -12 ITEM BEFORE COMMISSION This is before the City Commission to approve Resol ution No. 01-12 regarding the First Nonpartisan and Special Election to be held on March 13, 2012. BACKGROUND On November 15, 2011, Commission approved the Vote Processing Equipment Use and Elections Services Agreement with Ms. Susan Bucher, Palm Beac h County Supervisor of Elections, for conducting municipal elections. Resolution No. 01-12 provides the process for conducting the municpal and special election (referendum) to be held on Mar ch 13, 2012. RECOMMENDATION Recommend approval of Resolution No. 01-12 regardin g the March 13, 2012, First Non-Partisan and Special Election. RESOLUTION NO. 01-12 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, CALLING FOR A NONPARTISAN ELECTION AND A SPECIAL ELECTION TO BE HELD ON TUESD AY, MARCH 13, 2012; AND A SECOND NONPARTISAN ELECTION, IF NECESSARY, TUESDAY, MARCH 27, 2012; ALL ELECTIONS SH ALL BE HELD WITHIN THE MUNICIPAL BOUNDARIES OF THE CITY BETWEEN THE HOURS OF 7:00 AM UNTIL 7:00 PM; THE NONPARTISAN ELECTION SHALL PROVIDE FOR THE ELECTIO N OF TWO CITY COMMISSIONERS AND THE SPECIAL ELECTION SHALL PROVIDE FOR A REFERENDUM ON THE CHARTER CHANGE PRESENTED IN ORDINANCE NO. 44-11; PROVIDING THE TIME, MANNER AND MEANS OF HOLDING SAID ELECTIONS, PROVIDING A SAVING CLAUSE AND AN EFFECTIVE DATE. WHEREAS, the Charter and the Code of Ordinances of the City of Delray Beach, provide for Nonpartisan Elections to be held on the second Tues day in March of each year for the electorate to fil l the vacant offices at such time; and WHEREAS, if two or more candidates tie for the hig hest number of votes from all electors casting ballots for that seat for Commissioner or Mayor, th en these candidates shall be declared candidates fo r a second nonpartisan election to be held on Tuesday, March 27, 2012; and WHEREAS, in the year 2012, two (2) offices in the City of Delray Beach are necessary to be filled at the Nonpartisan Election; and WHEREAS, the City Commission directs that the Nonp artisan Election be held on Tuesday, March 13, 2012; and WHEREAS, the Charter and the Code of Ordinances of the City of Delray Beach, provide for Special Elections; WHEREAS, Ordinance No. 44-11 amends the City Chart er by modifying the length of a term and the number of terms a Mayor or Commissioner may serve; and WHEREAS, the City of Delray Beach desires to call for a special election on the Charter amendment matter; and WHEREAS, the City Commission of the City of Delray Beach directs that the special election on the Charter change proposed in Ordinance No. 44-11 be held on Tue sday, March 13, 2012; and WHEREAS, the City Commission directs the City Cler k to take all steps necessary to hold a Nonpartisan Election and a Special Election, and if necessary, a Second Nonpartisan election, and to p rovide all notices required in accordance with Article V, “Elections” of the Charter of the City of Delray Be ach, Chapter 34, “Elections”, and General Law. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISS ION OF THE CITY OF DELRAY BEACH, FLORIDA, AS FOLLOWS: 2 RES. NO. 01-12 Section 1 . That the City Commission incorporates the “Wherea s” clauses set forth above as if fully set forth herein. Section 2 . That the City Commission authorizes the holding o f a Special Election on the Charter change presented in Ordinance No. 44-11. Section 3 . That the Nonpartisan Election and the Special Ele ction shall be held and are hereby ordered to be held in the City of Delray Beach, Pal m Beach County, Florida between the hours of 7:00 a m and 7:00 pm on the 13 th day of March, 2012 for the purpose of electing qua lified candidates as provided by law to fill two Commission seats and to determine the outc ome of the Charter change proposed in Ordinance No. 44-11. Section 4. The City Clerk is authorized to enter into agreeme nts to establish polling locations for the March 13, 2012 Nonpartisan Election and Special Election; and the March 27, 2012 Second Nonpartisa n Election, if necessary, and is further authorized t o designate polling locations within the municipal boundaries in accordance with applicable laws and state guidelines. Section 5 . The City Clerk is hereby authorized to assign suf ficient poll workers to facilitate all the precincts within the municipal boundaries; schedule training for poll workers and to establish a pay s cale applicable to the duties and responsibilities of the electi on staff. Section 6 . The Palm Beach County Supervisor of Elections sha ll provide for use of the voting equipment and process absentee ballots for said ele ctions and is hereby authorized to provide the nece ssary training to the poll workers as approved by the City Clerk. Section 7 . Immediately after closing of the polls on the day of said elections, the clerks of each precinct shall present the returns thereof to the C ity Clerk at City Hall. The City Clerk of the City of Delray Beach shall deliver to the Palm Beach County Superv isor of Elections returns for official results to b e processed. Section 8 . That the City Commission hereby authorizes the City Cl erk to provide all notices and to take all steps necessary to hold the Nonpartisan Election an d Special Election as hereby provided. Section 9 . That the City Commission shall convene not later than three (3) days after such election and shall canvass the returns and, in the absence o f a declaration of a contest by any of the candidat es in such election, shall declare the results of the election as shown by the returns made by the Supervisor of Elections. Section 10 . That the City Clerk, no later than noon the secon d day thereafter, shall furnish a certificate of election to each person shown to be elected. Section 11 . That this resolution shall become effective immediately upon passage. PASSED AND ADOPTED this _____ day of ________________, 2012. _____________________________________ M A Y O R ATTEST: _______________________________ City Clerk 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:December 28, 2011 SUBJECT:AGENDA ITEM 8.B. - REGULAR COMMISSION MEETING OF JANUARY 3, 2012 RIGHT -OF -WAY DEED AGREEMENT/DELRAY BEACH HOUSING AUTHORITY ITEM BEFORE COMMISSION Acceptance of a Right-of-Way Deed dedicating 50-feet of land for Auburn Avenue from the Delray Beach Housing Authority in association with the Vil lage Square Redevelopment project. BACKGROUND The Village Square project will be located at 770 S .W. 12 Terrace and consist of a 15-acre site east of Auburn Avenue; north of S.W. 8th Street; and south of the Villages at Delray (formerly Auburn Trace). The portion of Auburn Avenue immediately we st of the 15-acre site is currently being used as public right-of-way, however, it was never conveyed to the City of Delray Beach. As a requirement of the Conditional Use process for the Village Square project, this stretch of Auburn Avenue needs to be dedicated to the City. This dedication was going to be done as part of the Village Square platting process, but the City's Auburn Avenue Beautificatio n project is currently underway and this stretch of roadway is planned to be improved within the next f ew months. Therefore, dedication is required prior to construction activities. RECOMMENDATION Staff recommends approval. MEMORANDUM TO:Mayor and City Commissioners FROM:Rafael Ballestero, Deputy Director of Construc tion Richard C. Hasko, P.E., Director of Environmental S ervices THROUGH:David T. Harden, City Manager DATE:December 15, 2011 SUBJECT:AGENDA ITEM 8.C. - REGULAR COMMISSION MEETING OF JANUARY 3, 2012 CHANGE ORDER NO. 4/FOSTER MARINE CONTRACTORS, INC. ITEM BEFORE COMMISSION This item is before the Commission to approve Chang e Order No. 4 in the amount of $10,646.40, to Foster Marine Contractors, Inc. for additional sod required due to sod quantity shortages; and a contr act time extension of fourteen (14) days; for the SW 12 Ave./Auburn Ave/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. Change Order No. 4 is for a sod quantity shortage; additional sod is required as follows: 12,684 SF o f Bahia Sod at $0.40/sf which equals $5,073.60 and 12 ,384 SF of St. Augustine Floratam Sod at $0.45/sf which equals $5,572.80, for a total sod sh ortage amount of $10,646.40. The additional sod is needed for the swale grading and rear parking areas ; and additional disturbed areas that will require sod. CO #4 also includes a contract time extension of fourteen days (14) detailed as follows: four (4) days delay for stopping short of the installation o f a catch basin due to an existing (abandoned) 4" w ater main to be removed, which the City could not confir m was abandoned; Foster Marine (FM) performed additional work and furnished materials to verify t hat the main was abandoned. FM absorbed the cost of the labor and materials. Three (3) days delay due to a request for grade clarification for the sidewa lk grade along SW 14th Ave. The plans did not depict t he actual elevation condition and staff instructed FM to excavate a test section for review to allow a ctual grades to be established. This decreased FM's productivity in grading for the sidewalk and swale in this area; plus and seven (7) days for the addit ional sod installation and watering. Attached please find Exhibit "A" to CO #4 and a Loc ation Map. FUNDING SOURCE Funding is available from 334-3162-541-68.04 (General Construction Fund/Other Improvement/SW 12 Ave/Auburn/SW 14th Ave). RECOMMENDATION Staff recommends approval of Change Order No. 4 in the amount of $10,646.40 to Foster Marine Contractors, Inc. for sod quantity shortages; and a contract time extension of fourteen (14) days for the SW 12 Ave./Auburn Ave/SW 14 Ave Project. MEMORANDUM TO:Mayor and City Commissioners FROM:Richard C. Hasko, P.E., Environmental Services Director THROUGH:David T. Harden, City Manager DATE:December 27, 2011 SUBJECT:AGENDA ITEM 8.D. - REGULAR COMMISSION MEETING OF JANUARY 3, 2012 SERVICE AUTHORIZATION NO. 06 -12/CURRIE SOWARDS AGUILA ARCHITECTS ITEM BEFORE COMMISSION Staff requests Commission approval of Service Autho rization #06-12 for Currie Sowards Aguila Architects for consulting services required in conj unction with a storm hardening project for Fire/Rescue Headquarters (FS #1) in the amount of $44,300.00. BACKGROUND The City has acquired grant funding through the Dis aster Recovery Initiative (DRI) of the Community Development Block Grant (CDBG) program in the amoun t of $580,000 to provide storm damage mitigation for Fire Station #1 located at the north west corner of West Atlantic Avenue and NW 5th Avenue. The Fire/Rescue Headquarters building was constructed in 1992 in compliance with building codes in effect at that time. Since completion of that building, code requirements have become much more stringent relative to the ability of buildings and building components to withstand hurricane fo rce winds. This is an especially critical consideratio n for FS #1 since it houses the Emergency Operation s Center (EOC) which is the focal point for disaster response for the City. While the building was originally designed with mot orized roll down shutters, they have proven to be maintenance intensive in this particular installati on and have been identified as the source of chroni c water intrusion problems. In addition, the almost twenty year old sections of flat roofing have requi red attention due to water intrusion. Finally, the aux iliary generator installed with the original constr uction project is inadequate to provide power for the enti re facility electric load. The scope of the proposed hardening project include s removal of existing shutters and replacement of fifty-three (53) windows with impact resistant windows as well as replacement of ten (10) perimeter doors with materials compliant with current codes; removal and replacement of the flat sections of roofing and replacement of the existing auxiliary g enerator with a new more efficient unit with adequa te capacity to provide emergency power to the entire f acility. The project has a grant driven deadline o f October 21, 2012. The scope for the consultant service authorization provides all required services from preparation of construction documents to construction administrati on and final project close-out. The contract amount of $44,300 represents approximately 7.6% of the pro ject construction budget, and compares favorably with consultant fees for similar projects. FUNDING SOURCE Funding for this agreement is available in account # 334-6112-519-62.10, Renewal & Replacement, Buildings, after budget transfer. RECOMMENDATION Staff recommends approval of Service Authorization #06-12 for Currie Sowards Aguila Architects. CURRIE SOWARDS AGUILA ARCHITECTS CONSULTING SERVICE AUTHORIZATION DATE: Dec. 22, 2011 SERVICE AUTHORIZATION NO. 06-12 FOR CONSULTING SERVICES CITY P.O #: CITY PROJECT # 2012-063 CITY EXPENSE CODE: TITLE: Fire Station 1 – Limited Storm Hardening Pro ject CSA PROJECT # 111204 This Service Authorization, when executed, shall be incorporated in and shall become an integral part of the Agreement between the City of Delray Beach and Currie Sowards Aguila Architects dated October 17, 2006. I PROJECT DESCRIPTION The project generally consists of the following th ree principal tasks. Task 1 – Provides for the review and analysis of all exis ting exterior doors and windows and preparation of required drawings and specificat ions for the bidding, permit, and construction (replacement) of all exterior doors an d windows with code compliant impact rated systems. Additionally, any required perimete r interior and exterior opening restoration details will be provided as well as oth er noted conditions that are determined to prevent moisture intrusion into the building env elope. Services include preparation of permit documents through construction administratio n services. Task 2 – Provides for the preparation of bidding, permit, and construction documents for the replacement of the two flat-roof areas of the b uilding (over the apparatus bay and the second floor area) to a new three or four ply roofi ng system and any associated flashing and trim necessary. Services include preparation o f permit documents through construction administration services. Task 3 – Provides for the review and analysis of existing electrical systems and historic demands to select and specify a new upgraded natura l gas generator. Once the appropriate unit is selected, the existing generato r enclosure will be analyzed to determine whether modifications are appropriate for sizing, or whether a new separate structure will be required. Either way, services i nclude all required analysis, preparation of bidding, permit, and construction documents need ed to implement the new system. Services include preparation of permit documents th rough construction administration services. II SCOPE OF SERVICES See Project Description above. III BUDGET Task 1 – Fees are proposed as a lump-sum fee of $2 7,800.00 Task 2 – Fees are proposed as a lump-sum fee of $ 5,000.00 Task 3 – Fees are proposed as a lump-sum fee of $1 1,500.00 Total all Fees $44,300.00 Direct Reimbursable Expenses are in addition to fee s noted above and are not anticipated to exceed $500.00 without approval. IV COMPLETION DATE Tasks included in this Service Authorization will b e completed ninety (90) days from authorization to proceed. Approval of this proposa l by City Commission will constitute the City’s authorization to proceed. This Service Authorization is approved contingent u pon the City’s acceptance of and satisfaction with the completion of services rendered in the pre vious phase or as encompassed by the previous Service Authorization. If the City in its sole discretion is unsatisfied with the service provided in the previous phase or Service Authoriza tion, the City may terminate the Contract without incurring any further liability. The CONSU LTANT may not commence work on any Service Authorization approved by the City to be in cluded as part of the Contract without a further notice to proceed. Approved by: CITY OF DELRAY BEACH CURRIE SOWARDS AGUILA ARCHI TECTS Date: Date: Nelson S. McDuffie, Mayor José N. Aguila, AIA, LE ED AP, Principal (Seal) Attest: Witness: Witness: STATE OF FLORIDA COUNTY OF PALM BEACH The following instrument was acknowledged Before me this 22 Day of December , 2011, by José N. Aguila, of Currie Sowards Aguila Architects, Inc., a Florida Corporation dba Currie Sowards Aguila Architects, He is personally known to me and did not take an oath. Notary Public My Commission Expires: SEAL Fire Station #1 Storm Hardening Consultant Contract Award Project Design Project Bidding Award Construction Contract Project Construction Note: Schedule assumes expeditious turn around time for County and State review activities Ju l y - 1 2 Au g u s t - 1 2 Se p t e m b e r - 1 2 Oc t o b e r - 1 2 No v e m b e r - 1 2 Ju n e - 1 2 Ja n u a r y - 1 2 Fe b r u a r y - 1 2 Ma r c h - 1 2 Ap r i l - 1 2 Ma y - 1 2 Google Maps http://maps.google.com/maps?hl=en&tab=wl[12/27/2011 10 :55:19 AM] Get directions My places Traffic Earth Earth Ea rt h Ea rt h Map Web Images Videos Maps News Shopping Gmail More Sign in Google Maps http://maps.google.com/maps?hl=en&tab=wl[12/27/2011 10 :55:19 AM] Imagery ©2011 GeoEye, Map data ©2011 Google - 100 ft 20 m Edit in Google Map Maker Report a problem 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:December 20, 2011 SUBJECT:AGENDA ITEM 8.E. - REGULAR COMMISSION MEETING OF JANUARY 3, 2012 RFQ AGREEMENT FOR ENGINEERING SERVICES/WANTMAN GROUP, INC./MAT HEWS CONSULTING, INC. ITEM BEFORE COMMISSION This item is before the Commission for approval/aut horization for Mayor to sign Engineering Consulting Services Agreements with Wan tman Group, Inc. and Mathews Consulting, Inc. Project #12-057. BACKGROUND On 02 Oct 2011 Request for Qualifications were soli cited from engineering firms for capital improvement projects contained in the City’s Capita l Improvement Program (CIP). Thirty-four firms responded and were reviewed by the selection commit tee. On 13 Dec 2011 City Commission gave staff approval to negotiate continuing contracts with Mat hews Consulting, Kimley-Horn & Associates and Calvin, Giordano & Associates, Corzo Castella Carba llo Thompson Salman, Wantman Group and Craig A. Smith. Attached are partially executed agreements from Wan tman Group, Inc. and Mathews Consulting, Inc. RECOMMENDATION Staff recommends approval. MEMORANDUM TO:Mayor and City Commissioners FROM:Lula Butler, Director, Community Improvement THROUGH:David Harden, City Manager DATE:December 20, 2011 SUBJECT:AGENDA ITEM 8.F. - REGULAR COMMISSION MEETING OF JANUARY 3, 2012 HOUSING REHABILITATION GRANT/CONTRACT AWARD ITEM BEFORE COMMISSION Approval is requested for one (1) Housing Rehabilit ation grant to be awarded to the lowest responsive bidder in the amount of $24,011.77. Funding for the project is through the CDBG and RCMP Housing Rehabilitation grant. BACKGROUND Approval is requested for one (1) Housing Rehabilit ation grant to be awarded to the lowest responsive bidder, Citywide Construction Services, Inc., for t he following project: 218 SW 13 TH Avenue./$21,453.65=Total Rehab cost: $24,011.77 Grant awards are based on the actual cost of the re habilitation, as determined by the low responsive bidder(s), plus a 5% contingency. Total rehab cost also includes lead inspection, lead abatement, lead clearance, termite inspection, termite treatment, a nd recording fees. Additional cost may be incurred for lead clearance test(s). The contingency may be used for change orders and all unused funds will remain with the CDBG and RCMP Housing Rehabilitation progr am. Inspection of work is done by the Department of Community Improvement’s Building Inspection and Neighborhood Services Divisions. Contracts are executed between the build ing contractor and the property owner. The City remains the agent and this office monitors all work performed by the contractor, ensuring compliance according to specifications and program guidelines. Pay request forms require both contractor and homeowner’s signatures. Grant recipients have met all eligibi lity requirements as specified in the approved Policies and Procedures. The rehabilitatio n activities will bring the homes to minimum code requirements by repairing the roof, electric and pl umbing systems and correcting other incipient code violations. Detailed work write-ups and individual case files are available for rev iew in the Neighborhood Services Division Office. The Neighborhood Services Division is responsible f or ensuring that the housing rehabilitation contrac ts are awarded to the lowest responsive bidder, as a r esult of a formal bid process. Therefore, an in-house policy was created to limit awards to the lowest re sponsive bidder as it relates to the Division’s professional in-house estimate. This serves to disqualify unreasona bly low bids and therefore, protect against the resulting change order requests. FUNDING SOURCE Community Development Block Grant 118-1963-554-49.19 $ 19,542.77 Residential Construction Mitigation Program 118 -1936 -554 -49.19 $ 4,469.00 RECOMMENDATION Staff recommends awarding one (1) Housing Rehabilit ation grant to the lowest responsive bidder in the amount of $24,011.77. BID/QUOTE #: 03-2012NS APPLICANT: Bernice Ivy PROJECT ADDRESS: 218 SW 13th Avenue DATE OF BID LETTERS: October 11, 2011 DATE OF BID OPENING: November 7, 2011 GENERAL CONTRACTORS BID AMOUNT BID BOND Abisset Corporation All Phase Roofing 28,125.00 $ Yes All-Site Construction, Inc. ARZ Builders, Inc. Built Solid Construction, LLC Citywide Construction Services, Inc.21,453.00 $ Yes CJ Contracting, LLC 24,234.00 $ Cordoba Construction Co. 21,530.00 $ Yes Jemstone Construction Group, Inc. JIJ Construction Corp. KM Construction Inc. MacDonald Construction Company of Palm Beach22,715.0 0 $ Yes Raymond Graeve & Sons Construction, Inc.Statement of no bid South Florida Construction Services, Inc.22,530.00 $ Yes Sunband Builders Construction Inc. In-House Estimate:23,669.00 $ RECOMMENDED CONTRACTOR: Citywide Construction Servic es, Inc. BID/CONTRACT AMOUNT :21,453.00 $ 5% Contingency 1,072.65 $ 22,525.65 $ Lead Inspection 450.00 Lead Clearance N/A Termite Inspection N/A Termite Treatment 997.92 Recording Fees 38.20 GRANT CONTRACT AMOUNT 24,011.77 FUNDING SOURCE:Community Development Block Grant (CDB G) Account #118-1963-554-49.19$19,542.77 118-1936-554-49.19$4,469.00 COMMENTS:Staff recommends awarding housing rehabilitat ion project to be awarded to the lowest responsive bidder. CITY OF DELRAY BEACH NEIGHBORHOOD SERVICES DIVISION HOUSING REHABILITATION PROGRAM BID INFORMATION SHEET Residential Construction Mitigation Program (RCMP) BID /QUOTE NUMBER:03-2012NS OWNER: ADDRESS: 218 SW 13th Avenue BID ADVERTISEMENT DATE:October 11, 2011 BID OPENING DATE:November 7, 2011 Bernice Ivy In- H o use All P h a s e Ro ofin g CJ C o n t r a c t i n g , LLC . City w i d e Co nst r u c t i o n Ser v i c e s , I n c . Co rdo b a Co nst r u c t i o n Co mpa n y , I n c . Mac D o n a l d Co nst r u c t i o n C o of P a l m B e a c h Ra ym o n d G r a e v e & S o n s Co nst r u c t i o n , I n c . Sou t h F l o r i d a Co nst r u c t i o n Ser v i c e s , I n c . 1 Hurricane Shutters 3,304.00 $ 5,145.00 $ 5,700.00 $ 3,363.00 $ 3,300.00 $ 3,600.00 $ 3,550.00 $ 2 Install Exterior Door 1,450.00 $ 1,400.00 $ 1,300.00 $ 875.00 $ 1,100.00 $ 1,300.00 $ 1,360.00 $ 3 Repair Window 1,120.00 $ 1,390.00 $ 600.00 $ 575.00 $ 950.00 $ 150.00 $ 480.00 $ 4 Install Base Trim 612.75 $ 885.00 $ 690.00 $ 675.00 $ 570.00 $ 855.00 $ 575.00 $ 5 Install Bi-Pass Doors 450.00 $ 400.00 $ 295.00 $ 380.00 $ 340.00 $ 400.00 $ 370.00 $ 6 Install Cabinets and Counter Top 5,400.00 $ 5,400.00 $ 3,100.00 $ 2,950.00 $ 4,200.00 $ 4,100.00 $ 5,120.00 $ 7 Install Carpet 1,944.00 $ 2,430.00 $ 1,500.00 $ 2,010.00 $ 1,200.00 $ 1,800.00 $ 1,810.00 $ 8 Install Interior Door 800.00 $ 200.00 $ 600.00 $ 900.00 $ 800.00 $ 1,000.00 $ 900.00 $ 9 Install Vinyl Tile 562.50 $ 810.00 $ 600.00 $ 615.00 $ 700.00 $ 700.00 $ 525.00 $ 10 Paint Room Complete 1,674.50 $ 1,900.00 $ 1,350.00 $ 1,050.00 $ 2,000.00 $ 2,200.00 $ 1,575.00 $ 11 Repair Drywall/Remove Tile 1,211.25 $ 2,160.00 $ 899.00 $ 900.00 $ 700.00 $ 500.00 $ 590.00 $ 12 Install Kitchen Sink 375.00 $ 400.00 $ 200.00 $ 500.00 $ 420.00 $ 300.00 $ 370.00 $ 13 Install Tub Shower with Grab bars 1,800.00 $ 2,500.00 $ 3,000.00 $ 2,645.00 $ 1,900.00 $ 2,050.00 $ 2,210.00 $ 14 Install Vanity with Sink 525.00 $ 745.00 $ 650.00 $ 830.00 $ 500.00 $ 1,200.00 $ 705.00 $ 15 Repair Toilet 150.00 $ 300.00 $ 100.00 $ 150.00 $ 160.00 $ 250.00 $ 235.00 $ 16 Repair Water Heater 175.00 $ 100.00 $ 150.00 $ 250.00 $ 500.00 $ 75.00 $ 180.00 $ 17 Install Exterior Light Fixture 230.00 $ 260.00 $ 120.00 $ 300.00 $ 330.00 $ 200.00 $ 150.00 $ 18 Install interior Light Fixture 255.00 $ 390.00 $ 180.00 $ 300.00 $ 250.00 $ 300.00 $ 180.00 $ 19 Repair Electrical Service 1,150.00 $ 650.00 $ 1,900.00 $ 1,500.00 $ 1,250.00 $ 985.00 $ 1,070.00 $ 20 Smoke Detectors with Arc Fault 480.00 $ 660.00 $ 1,300.00 $ 685.00 $ 360.00 $ 750.00 $ 575.00 $ 21 22 23 24 TOTAL 23,669.00 $ 28,125.00 $ 24,234.00 $ 21,453.00 $ 21,530.00 $ 22,715.00 $ -$ 22,530.00 $ Statement of no bid MEMORANDUM TO:Mayor and City Commissioners FROM:Lula Butler, Director, Community Improvement THROUGH:David Harden, City Manager DATE:December 20, 2011 SUBJECT:AGENDA ITEM 8.G. - REGULAR COMMISSION MEETING OF JANUARY 3, 2012 CDBG SUB -RECIPIENT FUNDING AGREEMENT/ ACHIEVEMENT CENTERS FOR CHILDREN AND FAMILIES) ITEM BEFORE COMMISSION Approval is requested to execute an agreement for f unding with the above-listed sub-recipient under the 2011-2012 Community Development Block Grant (CDBG) Program. BACKGROUND In accordance with 24 CFR 570.301, a Public Hearing was held before the City Commission on August 2, 2011, to obtain public comment on the proposed b udget for the approval of the Community Development Block Grant Consolidated Action Plan fo r fiscal year 2011-2012. The Action Plan contains an appropriation for public service activi ty and was approved by the Commission. CDBG Program regulations at 24 CFR 570.503 require written agreements prior to the disbursement of funds to sub-recipient organizations, specifying the work to be performed and reporting requirements, among other requirements and governing provisions. These agreements have been developed in accordance with the stated regulations and have bee n reviewed and approved by the City Attorney for legal sufficiency and form. FUNDING SOURCE Community Development Block Grant 118-1966-554-82.0 9 RECOMMENDATION Staff recommends approval and execution of the agre ements in order that funding may proceed in accordance with the Commission approved Action Plan for fiscal year 2011-2012. 1 FY 2011-2012 COMMUNITY DEVELOPMENT BLOCK GRANT AGREEMENT between CITY OF DELRAY BEACH and ACHIEVEMENT CENTERS FOR CHILDREN AND FAMILIES . THIS AGREEMENT is entered into between the CITY OF DELRAY BEACH, a Florida municipal corporation, hereinafter referred to as “CITY,” and “ACHIEVEMENT CENTERS FOR CHILDREN AND FAMILIES”, hereinafter referred to as “the SUBRECIPIENT,” having its principal office at 555 N.W. 4 th Street, Delray Beach, Florida 33444-2734. W I T N E S S E T H: WHEREAS, the CITY has entered into an Agreement with the U.S. Department of Housing and Urban Development (HUD) for a grant for the execution and implementation of a Community Development Block Grant (CDBG) Program in the CITY, pursuant to Title I of the Housing and Community Development Act of 1974 (as amended); and WHEREAS, the CITY desires to engage the SUBRECIPIENT to impleme nt an activity of the Delray Beach CDBG Program; NOW, THEREFORE, in consideration of the mutual promises and co venants contained herein, the parties hereto agree as follows: ARTICLE I DEFINITION AND PURPOSE 1. Definitions 1.1 “CDBG” means Community Development Block Grant program. 1.2 “HUD” means the U.S. Department of Housing and Urban Deve lopment. 1.3 “24 CFR” refers to the Section of the Code of Federal Regulations pertaining to the U.S. Dept. of HUD. 1.4 “Program Income” means gross income received directly generated or earn ed from the use of CDBG funds. Program Income includes, but is not limited to, interest earned on advances of federal funds or royalties received as a result of pa tents or copyrights produced under this grant. 1.5 “OMB” means Office of Management and Budget. 1.6 “Low- and Moderate-Income” means a household whose income is within specified income limits set forth by HUD. 1.7 Property: a. “Real Property” means land, land im provements, structures, fixtures and appurtenances thereto, excluding movable machinery and equipmen t. b. “Personal Property” means personal proper ty of any kind except real property. 2 c. “Nonexpendable Personal Property” means t angible (i.e., physical) personal property of a nonconsumable nature, with a value of $500 or more per item, with a normal expected life of one or more years, not fixed in place, and n ot an integral part of a structure, facility or another piece of equipment. d. “Expendable Personal Property” means all tangible personal prope rty other than nonexpendable property. 2. Purpose The purpose of this Agreement is to state the covenants and con ditions under which the SUBRECIPIENT will implement the Statement of Wo rk set forth in Article II of this agreement. ARTICLE II STATEMENT OF WORK The SUBRECIPIENT shall carry out the activities specified in Attachme nt A, “Scope of Services.” ARTICLE III FUNDING AND METHOD OF PAYMENT 3.1 The maximum amount payable by the CITY under this Agreement will be Seventy Two Thousand Five Hundred Forty Dollars and 00/100 ($72,540.00). 3.2 The CITY will be billed by the SUBRECIPIENT and will disburse twelve (12) monthly payments in the amount of Six Thousand Forty Five Dollars ($6,045.00) Bills shall be submitted by the SUBRECIPIENT at least two weeks in advance. 3.3 Prior to receipt of CDBG funds (through reimbursement), SUBRECIPIE NT shall submit the following documentation no later than the 10th day of each month covered by this Agreement, in a format prescribed by the CITY: a. Monthly grantee performance report as well as a narrative ide ntifying the participant’s levels of family income, race, ethnicity , and achievements of participants served by the program. b. Monthly timesheets and payroll reports reflecting actual time worked by the CDBG funded position and a completed Direct Benefit Activity form (mon thly); c. Monthly Project Budget, detailing requested funds, included in this agreement as “Attachment D.” 3.4 Release of funds is subject to the approv al of the Director of Community Improvement. ARTICLE IV TERM OF AGREEMENT The term of this Agreement shall be from October 1, 2011, to Se ptember 30, 2012. 3 ARTICLE V SUSPENSION AND TERMINATION 5.1 Termination/Suspension of Payments/Agreement for Cause: If through any cause either party shall fail to fulfill in timely and proper manner its o bligations under this Agreement, or if either party shall violate any of the covenants, agreemen ts, or stipulations of this Agreement, either party shall thereupon have t he right to terminate this Agreement or suspend payments in whole or in part by giving written notice of such termination or suspension of payments and specify the effective date of te rmination or suspension. If payments are withheld, the CITY shall specify in writing the actions that must be taken by the SUBRECIPIENT as a condition precedent to resumption of pa yments and shall specify a reasonable date for compliance. Su fficient cause for suspension of payments shall include, but not be limited to: a. ineffective or improper use of CDBG funds, b. failure to comply with the Statement of Work or terms of this Agreement, c. failure to submit reports as required, d. submittal of materially incorrect or incomplete reports, e. failure to comply with any additional conditions that ma y be imposed by HUD. 5.2 Termination for Convenience of City: The CITY may termin ate this Agreement without cause at any time by giving at least ten (10) working days noti ce in writing to the SUBRECIPIENT. If this Agreement is termi nated by the CITY as provided herein, the SUBRECIPIENT will be paid for allowable services performed unde r Article II of this Agreement until the effective date of the termination. 5.3 Termination for Convenience of the SUBRECIPIENT: At any t ime during the term of this Agreement, the SUBRECIPIENT may, at its option and for any reason, terminate this Agreement upon ten (10) working days written notice to the CIT Y. Upon termination, the SUBRECIPIENT shall be paid for services rendered pursuant to this Ag reement through and including the date of termination. ARTICLE VI RECORDS AND REPORTS 6.1 The SUBRECIPIENT agrees to retain supporting documentation relating to activities funded by this Agreement for a period of five years after the t ermination of the Agreement. 6.2 The SUBRECIPIENT shall submit quarterly reports in a format pre scribed by the CITY per the schedule in Article III of this Agreement. 6.3 The SUBRECIPIENT agrees to submit upon request other document ation which may later be determined necessary to assure compliance with this Agreeme nt. 4 ARTICLE VII PROGRAM INCOME The SUBRECIPIENT agrees to expend CDBG funds for the purpose out lined in Article I of this Agreement. It is not anticipated that program income shall be generated from this allocation. However, such income, if generated, may be retained by the SUBREC IPIENT and used for costs that are in addition to the approved costs of this agre ement, provided that such costs specifically further the objectives of this agreement. Under no circumstances shall the SUBRECIPIENT use program income to pay for c harges or expenses that are specifically not allowed pursuant to the terms of this agreement and applicab le federal regulations or rules. The use of program income by the SUBRECIPIENT s hall comply with the requirements set forth at 24 CFR 570.504. ARTICLE VIII PUBLICITY The SUBRECIPIENT shall ensure that all publicity, public relat ions, advertisements and signs, recognize the CITY and the CDBG Program for the support of all contracted activities. The use of the official CITY logo is permissible, but all signs used to publicize CITY contracted activities must be approved by the CITY prior to being posted. ARTICLE IX GENERAL CONDITIONS 9.1 Federal, State, County and CITY Laws and Regulations: The SUBRECIPIENT shall comply with applicable provisions of applicable federal, state , County, and CITY laws, regulations and rules, including OMB A-122, OMB A-21, OMB A-133. The SUBRECIPIENT shall comply with Section 504 of the Rehabili tation Act of 1973, as amended, which prohibits discrimination on the basis of handicap; Title VI of the Civil Rights Act of 1964, as amended, which prohibits discrimination on the basis of race, color, or national origin; the Age Discrimination Act of 1975, as amended, which prohibits discrimination on the basis of age; Title VIII of the Civil Rights Act of 1968, as amended, and Executive Order 11063 which prohibits discrimination in hou sing on the basis of race, color, religion, sex, or national origin; Executive Order 11 246, as amended which requires equal employment opportunity; and with the Energy Poli cy, amended and Conservation Act (Pub.L 94-163) which requires mandatory standards and policies relating to energy efficiency. The SUBRECIPIENT shall report its compliance with Section 504 of the Rehabilitation Act whenever so requested by the CITY. The SUBRECIPIENT shall comp ly with all applicable requirements of the Americans with Disabilities Act (AD A) of 1990, including, but not limited to, those provisions perta ining to employment, program services, transportation, communications, access to facilities, renovations, and new construction. The SUBRECIPIENT shall comply with all federal laws and regula tions pertaining to environmental standards described in 24 CFR Subpart K, except tha t: a. The SUBRECIPIENT does not assume the CITY’s environmental respon sibilities described at 570.604, and b. The SUBRECIPIENT does not assume the CITY’s responsibility for i nitiating the review process under the provisions of 24 CFR part 52. 5 9.2 Opportunities for Residents and Civil Rights Compliance: The SUBRECIPIENT agrees that no person shall on the grounds of race, color, national origin, religion, or sex be excluded from the benefits of, or be subjected to, discriminat ion under any activity carried out by the performance of this Agreement. To the great est feasible extent, lower-income residents of the project areas shall be given opport unities for training and employment; and to the greatest feasible extent, eligible business concerns located in or owned in substantial part by persons residing in the project areas shall be awarded contracts in connection with the project. 9.3 Evaluation and Monitoring: The SUBRECIPIE NT agrees that the CITY will carry out periodic monitoring and evaluation activities as determined ne cessary and that the continuation and/or renewal of this Agreement is dependent upon satisfactory evaluation conclusions. Such evaluations will be based on the terms of th is Agreement, comparisons of planned versus actual progress relating to activity sche duling, budgets, audit reports, and output measures. The SUBRECIPIENT agrees to f urnish upon request to the CITY and make copies of transcriptions of such record s and information as is determined necessary by the CITY. The SUBRECIPIENT shall su bmit on a schedule set by the CITY and at other times upon request, inf ormation and status reports required by the CITY to enable the evaluation of sai d progress and to allow for completion of reports required of the CITY by HUD. The SUBRECI PIENT shall allow the CITY or HUD to monitor its agency on site . Such site visits may be scheduled or unscheduled as determined by the CITY or HUD. 9.4 Audits: Nonprofit organizations that expend $500,000 or more annually in federal awards shall have a single or program specific audit conducted acco rdance with OMB A- 133. Nonprofit organizations that expend less than $500,0 00 annually in federal awards shall be exempt from an audit conducted in accordance with OMB A-1 33, although their records must be available for review. These agencies are required by the CITY to submit “reduced scope” audits (e.g., financial audits, performa nce audits). Each audit shall cover a time period of not more than 12 months and an a udit shall be submitted covering each assisted period until all the a ssistance received from this agreement has been reported on. A copy of the audit report must be receive d by the CITY no later than six months following each audit period. The SUBRECIPIENT shall maintain all records in accordance with gen erally accepted accounting principles, procedures, and practices which shall suff iciently and properly reflect all revenues and expenditures of funds prov ided directly or indirectly by the CITY pursuant to the terms of this agreement. 9.5 Uniform Administrative Requirements: The SUBRECIPIENT agrees t o maintain books, records and documents in accordance with accounting procedures and practices which sufficiently and properly reflect all expenditures of funds provi ded by the CITY under this Agreement. The SUBRECIPIENT is required to comply with the follo wing uniform administrative requirements: a. Specific provisions of the uniform administrative requirements o f OMB Circular A- 110, as implemented at 24 CFR Part 84, “Uniform Administrative R equirements for Grants and Agreements with Institutions of Higher Education, H ospitals and Other Non-Profit Organizations.” b. OMB Circular A-122 “Cost Principles for N on-Profit Organizations” (a list of allowable and unallowable costs appears in Attachment B). c. Applicable provisions of 24 CFR 570.502. 6 9.6 Lobbying Prohibition: The SUBRECIPIENT shall certify that n o federal appropriated funds have been paid or will be paid, by or on behalf o f the undersigned, to any person for influencing or attempting to influence an officer or e mployee of any agency, a Member of Congress, an officer or employ ee of Congress, or an employee of a Member of Congress in connection with the awarding of any federal Agreement, the making of any federal grant, the making of any federal loan, the en tering into of any cooperative Agreement, and the extension, continuation, renewal, amen dment, or modification of any federal Agreement, grant, loan, or cooperative Agreement. The SUBRECIPIENT shall disclose to the CITY if any funds other t han federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agen cy, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this federal Agreement. 9.7 Section 3 Requirements: The SUBRECIPIENT agrees to comply wit h all Section 3 requirements applicable to contracts funded through this Agreemen t. Information on Section 3 is available from the CITY upon request. The SUBRECI PIENT 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 a. The work to be performed under this agreement is subject to the requirements of Section 3 of the Housing and Urban Development Act of 1968 , as amended, 12 U.S.C. 1701 (Section 3). The purpose of Section 3 is to ensure that employment and other economic opportunities generat ed by HUD assistance or HUD-assisted projects covered by Section 3, shall to the greatest extent feasi ble, be directed to low-and very low-income persons, particularly persons who are recipient s of HUD assistance for housing. b. The parties to this agreement agree to comply with HUD’s re quirements in 24 CFR Part 135, which implement Section 3. As evidenced by their exe cution of this agreement, the parties to this agreement certify that they are under no contractual or other impediment that would prevent them from complying with the Part 135 regulations. c. The SUBRECIPIENT agrees to send to each labor organization or rep resentative of workers with which the SUBRECIPIENT has a collective bargaining Ag reement or other understanding, if any, a notice advising the labor org anization or workers representative of the SUBRECIPIENT’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 empl oyment positions can see the notice. The notice shall describe the Section 3 preference, shall set f orth minimum number and job titles subject to hire, availability of apprenti ceship and training positions, the qualifications for each, and the name and location of th e person(s) taking applications for each of the positions, and the anticipated date the work shall begin. d. The SUBRECIPIENT agrees to include this Section 3 clause in every su bcontract subject to compliance with regulations in 24 CFR Part 135, a nd agrees to take 7 appropriate action, as provided in an applicable provision of the subcontract or in this Section 3 clause, upon a finding that the subcontractor is i n violation of the regulations in 24 CFR Part 135. The SUBRECIPIENT will not su bcontract with any subcontractor where the SUBRECIPIENT has notice or knowledge that the subcontractor has been found in violation of the regulatio ns in 24 CFR Part 135 . e. The SUBRECIPIENT will certify that any vacant employment positions, including training positions, that are filled (1) after the SUBRECIPIENT is selected but before the contract is ex ecuted 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 t he SUBRECIPIENT’s obligations under 24 CFR Part 135. f. Noncompliance with HUD’s regulations in 24 CFR Part 135 may result in sanctions, termination of this contract for default, and debarment or susp ension from future HUD assisted contracts. 9.8 Insurance: The SUBRECIPIENT shall furnish to the CITY, c/o t he Community Improvement Department, certificate(s) of in surance evidencing coverage that meets the requirements outlined in Attachment C. 9.9 Property: Any real property under the SUBRECIPIENT’s control that was acquired or improved in whole or in part with CDBG f unds received from the CITY in excess of $25,000 shall be either: a. Used to meet one of the three CDBG national objectives required by and defined in 24 CFR Part 570.208 for five years following the expiration or termination of this agreement, or for such longer period of time as determined by th e CITY; or b. Not used to meet a CDBG national objective, in which ca se the SUBRECIPIENT shall pay to the CITY an amount equal to the market value o f the property as may be determined by the CITY, less any proportionate portion of the value attributable to expenditures of non-CDBG funds for acquisition of, or improvemen t to, the property. Reimbursement is not required after the period of time specifie d in Paragraph 9.9.a., above. Any real property under the SUBRECIPIENT’s control that was acquired or improved in whole or in part with CDBG funds from the CITY for $25,000 or less shall be disposed of, at the expiration or termination of this contract, in accordance with instructions from the CITY. All real property purchased in whole or in part with funds from this and previous agreements with the CITY, or transferred to the SUBRECIPIENT afte r being purchased in whole or in part with funds from the CITY, shall be list ed in the property records of the SUBRECIPIENT and shall include a legal description, size, date of acquisition, value at time of acquisition, present market value, present condition, address or location, owner’s name if different from the SUBRECIPIENT, in formation on the transfer or disposition of the property, and map. The property record s shall describe the programmatic purpose for which the property was acquired and identify the CDBG nat ional objective that will be met. If the property was improved, the records shall describe the programmatic purpose for which the improvements were made and identify the CDBG na tional objective that will be met. All nonexpendable personal property purchased in w hole or in part with funds from this and previous agreements with the CITY shall be listed in the property records of the 8 SUBRECIPIENT and shall include a description of the property, l ocation, model number, manufacturer’s serial number, date of acquisition, funding source , unit cost at the time of acquisition, present market value, property inventory number, info rmation on its condition, and information on transfer, replacement, or dispos ition of the property. The SUBRECIPIENT shall obtain prior written approval from the CI TY for the disposition of real property, expendable personal property, and nonexpendable personal property purchased in whole or in part with funds given to the SUBRECI PIENT pursuant to the terms of this agreement. The SUBRECIPIENT shall dispose of all such property in accordance with instructions from the CITY. Those instructions may re quire the return of all such property to the CITY. 9.10 Reversion of Assets: The SUBRECIPIENT shall return to the CI TY, upon expiration or termination of this Agreement, all the assets owned or held as a result of this Agreement, including, but not limited to any funds on hand , any accounts receivable attributable to these funds, mortgages, notes, and other col lateral and any overpayments due to unearned funds or costs disallowed pursuant to the t erms of this Agreement that were disbursed to the SUBRECIPIENT by the CITY. The SUBRECIPIEN T shall within 30 days of expiration or termination of this Agreement execute any and all documents as required by the CITY to effectuate the reversion of assets. Any funds not earned, as described and provided for in OMB A-122, by the SUBRECIPIENT prior t o the expiration or termination of this Agreement shall be retained by the CI TY. 9.11 Conflicts with Applicable Laws: If any pr ovision of this agreement conflicts with any applicable law or regulation, only the conflicti ng provision shall be deemed by the parties hereto to be modified to be consistent with the law or reg ulation or to be deleted if modification is impossible. However, the obligations under t his agreement, as modified, shall continue and all other provisions of this agreement shal l remain in full force and effect. 9.12 Renegotiation or Modification: Modification s of provisions of the agreement shall be valid only when in writing and signed by duly authorized rep resentatives of each party. The parties agree to renegotiate this agreement if the CIT Y determines, in its sole and absolute discretion, that federal, State and/or CITY revisions of any applicable laws or regulations, or increases or decreases in budget allocations make ch anges in this agreement necessary. 9.13 Right to Waive: The CITY may, for good and sufficien t cause, as determined by the CITY in its sole and absolute discretion, waive provisions in t his agreement or seek to obtain such waiver from the appropriate authority. Waiver requ ests from the SUBRECIPIENT shall be in writing. Any waiver shall not be cons trued to be a modification of this agreement. 9.14 Disputes: In the event an unresolved dispute exists be tween the SUBRECIPIENT and the CITY, the CITY shall refer the questions, including the views of all interested parties and the recommendation of the CITY, to the City Manager f or determination. The City Manager, or an authorized representative, will issue a determina tion within 30 calendar days of receipt and so advise the CITY and the SUBRECIPIENT, or i n the event additional time is necessary, the CITY will notify the SUBRECI PIENT within the 30 day period that additional time is necessary. The SUBRECIPIENT agre es that the City Manager’s determination shall be final and binding on all parties. 9 9.15 Indemnification: To the extent provided by law, the SUBRECIPIENT shall indemnify and hold harmless and defend the CITY, its agents, employees, an d elected officers from and against any and all claims, demands or causes of action of whatsoever kind or nature arising out of error, omission, negligent act, conduct o r misconduct by the SUBRECIPIENT, its agents, employees or office rs in the performance of services under this Agreement. IN WITNESS OF THE FOREGOING, the parties have set their hand s and seals on the day and year written above. WITNESSES: ACHIEVEMENT CENTERS FOR CHILDREN AND FAMILIES. ___________________________ By: _________________________________ Print_______________________ ___________________________ Print_______________________ STATE OF FLORIDA COUNTY OF PALM BEACH The foregoing instrument was acknowledged before me this ___ day of _______________, 20___, by ______, who is personally known to me. NOTARY PUBLIC S i g n P r i n t Personally Known _______ OR Produced Identification ________ Type of Identification Produced: ___________________________ ATTEST: CITY OF DELRAY BEACH, FLORIDA ____________________ By: C i t y C l e r k M a y o r Approved as to form: ____________________ City Attorney ATTACHMENT “A” SCOPE OF SERVICES The major focus of the ACHIEVEMENT CENTERS FOR CHILDREN AND FAMILIES u nder this Agreement will be providing day care, after-school care and relate d services to eligible children. At least 51% of the beneficiaries of a project funded und er this Agreement must be low- and moderate-income persons (as determined annually by HUD for the are a). CDBG funds may be used for programmatic costs including, but not lim ited to, salaries of direct service personnel, training, insurance, office supplies and expenses, education su pplies and materials, utilities, and sponsored events (field trips). Services under this program will be provided at the Center’s main facility located at 555 N.W. 4 th Avenue, Delray Beach, Flori da and at Village Academy, 400 SW 12 th Avenue, Delray Beach, Florida. The major tasks which the Achievement Centers for Children and Families will perform in connection with the provision of the eligible day care and after-school services include, but are not limited to, the following: a. Maintain facility at all times in conform ance with all applicable codes, licensing, and other requirements for the operation of a day care ce nter. The facility must also be handicapped accessible, and the day care serv ices must be organized into sepa rate areas appropriate for each of the age groupings being served (t oddler – 12 months to 3 years, pre-school – 3 to 4 years, pre- kindergarten – 4 to 5 years and after-school/out-of school care -- 5 years to 14 years). b. Accept applications and perform eligibility det erminations. At least 51 percent (51%) of the beneficiaries of subsidized day care must be low and moderate-income persons (as determined annually by HUD for the area). c. Offer day care services from 6:30 a.m. to 5:30 p.m. Monday through Friday, after-school/out-of- school services from public school closing time to 7:00 p.m. and Saturdays 7:30 a.m. to 4:30 p.m. to eligible families. d. Ensure that the numbers, background, and qualif ications of the Achievement Center’s for Children and Families’ staff provid ing the on-site day care and any related services at all times are appropriate for the enrolled child population at the center and meet at least the minimum standards established by the pertinent licensing bodies. e. As part of the day care services, provide a ra nge of structured social, educational, and cultural enrichment activities appropriate to the age groups being served. f. Maintain program and financial records documenting the eligib ility, attendance, provision of services, and the Center’s expenses relative to the children receiving day care services as a result of assistance provided through the CDBG program. ATTACHMENT “B” * Allowable under limited circumstances. ** Allowable only with prior permission from the CITY. *** Allowable only as a direct cost with permission from the CI TY. ALLOWABLE AND UNALLOWABLE COSTS UNDER OMB A-122 ITEM OF COST OMB A-122 (NONPROFITS) Unallowable Allowable Advertising Bad debts Bonding Communication Compensation, personnel services Contingency provisions Contributions (to others) Depreciation, use allowance Donations (from others) Employee morale, health, welfare Entertainment Equipment ** Fines, penalties Fringe benefits Fund raising, interest, investment management Idle facility, idle capacity Insurance & indemnification Interest Labor relations Lobbying Losses on other awards Maintenance, repair Materials, supplies Memberships, subscriptions, professional activity Organization costs ** Overtime, shift premiums ** Page charges in professional journals (research) Participant support costs ** Patent costs Pension plans Plant security Pre-award costs ** Professional services Profits, losses on asset disposition * Public information service *** Publication and printing costs *** Rearrangement, facility alteration ** Reconversion costs Recruiting Relocation * ATTACHMENT “B” * Allowable under limited circumstances. ** Allowable only with prior permission from the CITY. *** Allowable only as a direct cost with permission from the CI TY. ITEM OF COST OMB A-122 (NONPROFITS) Unallowable Allowable Rental Royalties, use of patents, copyrights Severance pay Specialized service facilities Taxes Termination-related costs Training, education Transportation Travel * ATTACHMENT “C” INSURANCE REQUIREMENTS WORKER’S COMPENSATION This coverage shall include Worker’s Compensation Insurance coverin g all employees and include Employer’s Liability with limits meeting all applica ble state and federal laws. This coverage must extend to any subcontractor that does not have thei r own Worker’s Compensation and Employer’s Liability Insurance. Thirty (30) days n otice of cancellation is required and must be provided to the CITY via Certified Mail. COMMERCIAL GENERAL LIABILITY This coverage shall be on an “Occurrence” basis. Coverage shall incl ude Premises and Operations; Independent Contractors’ Products and Completed Op erations and Contractual Liability. This policy shall provide coverage fo r death, personal injury or property damage that could arise directly or indirectly fr om the performance of this Agreement. The Minimum Limits of Coverage shall be ($1,000,000) per occurrenc e, Combined Single Limit for bodily Injury Liability and Property Damage Liability. THE CITY OF DELRAY BEACH MUST BE NAMED AS AN ADDITIONAL INSUR ED ON THE COMMERCIAL GENERAL LIABILITY POLICY . Thirty (30) days written notice must be provided to the CITY via Certified Mail in the event of can cellation. BUSINESS AUTOMOBILE LIABILITY The minimum limits of coverage shall be ($500,000) per occurrence, C ombined Single Limit for Bodily Injury Liability and Property Damage Liability. This cove rage shall be an “Any Auto” type policy. The CITY must be listed as an Additional Insured under the Po licy. Thirty (30) days written notice must be provided to the CITY via Certified Mail in th e event of cancellation. In the event that the SUBRECIP IENT does not own any vehicles, we will accept hired and non - owned coverage in the amounts listed above. In addition, we will require an affidavit signed by the SUBRECIPIENT indicating the following: does not own any vehicles. "Company Name" In the event we acquire any vehicles throughout the term of his Contract/Agreement, agrees to purchase "Any Auto" or "Company Name" Comprehensive Form coverage as of the date of acquisition. The SUBRECIPIENT’s Si gnature:_________________________________________ "Attachment D" MONTHLY PROJECT BUDGET Line Item CD Funds Requested $SSOLFDQW¶V0DWFK Other Project Funds Total Project Budget ADMINISTRATION: Personnel (# ) Payroll Taxes Employee Benefits Office Supplies Copy Supplies Postage Telephone Promotional Professional Services Vehicle Fuel/Mileage Other: (Insurance, etc.) PROGRAM: Acquisition Reconstruction Rehabilitation Installation Demolition Training/Tech. Asst.* Direct Assistance** Rental of Space Purchase/Rental of Equipment Professional Services for Clients Child Care Other: 3OHDVHOLVWDSSOLFDQW¶VDQWLFLSDWHGH[SHQGLWXUHVGHWDLOLQJUHT XHVWHGIXQGVDQGDSSOLFDQW¶VPDWFKLQJ funds. Please place C=Cash, S=Sweat Equity, O=Other Grants, D=Don ations beside each amount under ³$SSOLFDQW¶V0DWFK´WRGHQRWHWKHW\SHRIPDWFKEHLQJXV TOTALS $ - $ - $ - $ - MEMORANDUM TO:Mayor and City Commissioners FROM:Lula Butler, Director, Community Improvement THROUGH:David Harden, City Manager DATE:December 20, 2011 SUBJECT:AGENDA ITEM 8.H. - REGULAR COMMISSION MEETING OF JANUARY 3, 2012 CDBG SUB -RECIPIENT FUNDING AGREEMENT/FAIR HOUSING CENTER OF THE GREATER PALM BEACHES ITEM BEFORE COMMISSION Approval is requested to execute an agreement for f unding with the above-listed sub-recipient under the 2011-2012 Community Development Block Grant (CDBG) Program. BACKGROUND In accordance with 24 CFR 570.301, a Public Hearing was held before the City Commission on August 2, 2011, to obtain public comment on the proposed b udget for the approval of the Community Development Block Grant Consolidated Action Plan fo r fiscal year 2011-2012. The Action Plan contains an appropriation for public service activi ty and was approved by the Commission. CDBG Program regulations at 24 CFR 570.503 require written agreements prior to the disbursement of funds to sub-recipient organizations, specifying the work to be performed and reporting requirements, among other requirements and governing provisions. These agreements have been developed in accordance with the stated regulations and have bee n reviewed and approved by the City Attorney for legal sufficiency and form. FUNDING SOURCE Community Development Block Grant 118-1966-554.82.1 2 RECOMMENDATION Staff recommends approval and execution of the agre ements in order that funding may proceed in accordance with the Commission-approved Action Plan for fiscal year 2011-2012. 1 FY 2011 -2012 COMMUNITY DEVELOPMENT BLOCK GRANT AGREEMENT between CITY OF DELRAY BEACH and FAIR HOUSING CENTER OF THE GREATER PALM BEACHES, INC . THIS AGREEMENT is entered into between the CITY OF DE LRAY BEACH, a )ORULGDPXQLFLSDOFRUSRUDWLRQKHUHLQDIWHUUHIHUUHGWRDV³&,7<´DQGFAIR HOUSING CENTER OF THE GREATER PALM BEACHES, INC .KHUHLQDIWHUUHIHUUHGWRDV³WKHSUBRECIPIENT ´ having its principal office at 1300 West Lantana Road, Suite 100, Lantana, Florida 33462 . W I T N E S S E T H: WHEREAS, the CITY has entered into an Agreement with the U.S. Department of Housing and Urban Development (HUD) for a grant for th e execution and implementation of a Community Development Block Grant (CDBG) Program in t he CITY, pursuant to Title I of the Housing and Community Development Act of 1974 (as amen ded); and WHEREAS, the CITY desires to engage the SUBRECIPIENT to implement an activity of the Delray Beach CDBG Program; NOW, THEREFORE, in consideration of the mutual promise s and covenants contained herein, the parties hereto agree as follows: ARTICLE I DEFINITION AND PURPOSE 1. Definitions 1.1 ³&'%*´PHDQV&RPPXQLW\'HYHORSPHQW%ORFN*UDQWSURJU DP 1.2 ³+8'´PHDQVWKH86'HSDUWPHQWRI+RXVLQJDQG8UEDQDevelopment. 1.3 ³&)5´UHIHUVWRWKH6HFWLRQRIWKH&RGHRI)HGHUDO5HJXODWLRQVSHUWDLQLQJWRWKH86 Dept. of HUD. 1.4 ³3URJUDP,QFRPH´PHDQVJURVVLQFRPHUHFHLYHGGLUHFWO\JH QHUDWHGRUHDUQHGIURPWKH use of CDBG funds. Program Income includes, but is not limited to, interest earned on advances of federal funds or royalties received as a result of patents or copyrights produced under this grant. 1.5 ³20%´PHDQV2IILFHRI0DQDJHPHQWDQG%XGJHW 1.6 ³/RZ - and Moderate-,QFRPH´PHDQVDKRXVHKROGZKRVHLQFRPH is within specified income limits set forth by HUD. 1.7 Property: a. ³5HDO3URSHUW\´PHDQVODQGODQGLPSURYHPHQWVVWUXFWXUHVIL[WXUHVDQG appurtenances thereto, excluding movable machinery and equipment. 2 b. ³3HUVRQDO3URSHUW\´PHDQVSHUVRQDOSURSHUW\RIDQ\NLQ d except real property. c. ³1RQH[SHQGDEOH3HUVRQDO3URSHUW\´PHDQVWDQJLEOHLHSK\VLFDOSHUVRQDOSURSHUW\ of a nonconsumable nature, with a value of $500 or mor e per item, with a normal expected life of one or more years, not fixed in place, and not an integral part of a structure, facility or another piece of equipment. d. ³([SHQGDEOH3HUVRQDO3URSHUW\´PHDQVDOOWDQJLEOHSHUVRQ DOSURSHUW\RWKHUWKDQ nonexpendable property. 2. Purpose The purpose of this Agreement is to state the covenants an d conditions under which the SUBRECIPIENT will implement the Statement of Work set forth in Article II of this agreement. ARTICLE II STATEMENT OF WORK The SUBRECIPIENT shall carry out the activities VSHFLILHGLQ$WWDFKPHQW$³6FRSHRI 6HUYLFHV´ ARTICLE III FUNDING AND METHOD OF PAYMENT 3.1 The maximum amount payable by the CITY under this Agreement will be Six Thousand Dollars and 00/100 ($6 ,0 00 .00 ). 3.2 The CITY will be billed by the SUBRECIPIENT and will disburse $1000 .00 per seminar/session. Bills shall be submitted by the SUBRECIPIE NT at least two weeks in advance. 3.3 Prior to receipt of CDBG funds (through reimbursement ), SUBRECIPIENT shall submit for each seminar/session conducted, the following documentat ion: a. An agenda displaying the date, time, and location of the session/seminar conducted (the NS Division must have been notified in advance of the sa me, as required in the Scope of Service, item (b); b. A list of invitees/attendees for each session/seminar; c. A request for funds/invoice; d. Proof that each seminar/session was adequately advertised and marketed to residents of Delray Beach, in an effort to ensure maxim um participation and effectiveness (i.e. marketing tools used, copy of flyers/i nvitations/newspaper ads, and a narrative of other efforts made (activity report); e. A grantee performance report generated for each semi nar showing summary statistics on race, ethnicity, and income level of clients served by the program. 3.4 Release of funds is subject to the approval of the Director of Community Improvement. 3 ARTICLE IV TERM OF AGREEMENT The term of this Agreement shall be from October 1, 2011 , to September 30, 2012 . ARTICLE V SUSPENSION AND TERMINATION 5.1 Termination/Suspension of Payments/Agreement for Cause : If through any cause either party shall fail to fulfill in timely and proper manne r its obligations under this Agreement, or if either party shall violate any of the covenants, a greements, or stipulations of this Agreement, either party shall thereupon have the rig ht to terminate this Agreement or suspend payments in whole or in part by giving written n otice of such termination or suspension of payments and specify the effective date of termination or suspension. If payments are withheld, the CITY shall specify in wr iting the actions that must be taken by the SUBRECIPIENT as a condition precedent to resumpti on of payments and shall specify a reasonable date for compliance. Sufficient cause f or suspension of payments shall include, but not be limited to: a. ineffective or improper use of CDBG funds, b. failure to comply with the Statement of Work or te rms of this Agreement, c. failure to submit reports as required, d. submittal of materially incorrect or incomplete reports , e. failure to comply with any additional conditions that may be imposed by HUD. 5.2 Termination for Convenience of City: The CITY may terminate this Agreement without cause at any time by giving at least ten (10) working days notice in writing to the SUBRECIPIENT. If this Agreement is terminated by th e CITY as provided herein, the SUBRECIPIENT will be paid for allowable services performe d under Article II of this Agreement until the effective date of the terminati on. 5.3 Termination for Convenience of the SUBRECIPIENT: At any time during the term of this Agreement, the SUBRECIPIENT may, at its option and f or any reason, terminate this Agreement upon ten (10) working days written notice to the CITY. Upon termination, the SUBRECIPIENT shall be paid for services rendered pursuan t to this Agreement through and including the date of termination. ARTICLE VI RECORDS AND REPORTS 6.1 The SUBRECIPIENT agrees to retain supporting docu mentation relating to activities funded by this Agreement for a period of five years a fter the termination of the Agreement. 6.2 The SUBRECIPIENT agrees to submit upon request othe r documentation which may later be determined necessary to assure compliance with thi s Agreement. 4 ARTICLE VII PROGRAM INCOME The SUBRECIPIENT agrees to expend CDBG funds for the p urpose outlined in Article I of this Agreement. It is not anticipated that program income shall be generated from this allocation. However, such income, if generated, may be retained by the SUBRECIPIENT and used for costs that are in addition to the approved costs of this a greement, provided that such costs specifically further the objectives of this agreement. Unde r no circumstances shall the SUBRECIPIENT use program income to pay for charges or ex penses that are specifically not allowed pursuant to the terms of this agreement and app licable federal regulations or rules. The use of program income by the SUBRECIPIENT shall comply wi th the requirements set forth at 24 CFR 570.504. ARTICLE VIII PUBLICITY The SUBRECIPIENT shall ensure that all publicity, publi c relations, advertisements and signs, recognize the CITY and the CDBG Program for the suppo rt of all contracted activities. The use of the official CITY logo is permissible, but all signs u sed to publicize CITY contracted activities must be approved by the CITY prior to being posted. ARTICLE IX GENERAL CONDITIONS 9.1 Federal, State, County and CITY Laws and Regulat ions: The SUBRECIPIENT shall comply with applicable provisions of applicable federal, sta te, County, and CITY laws, regulations and rules, including OMB A-122, OMB A-21, OMB A-133. The SUBRECIPIENT shall comply with Section 504 of the R ehabilitation Act of 1973, as amended, which prohibits discrimination on the basis of han dicap; Title VI of the Civil Rights Act of 1964, as amended, which prohibits discriminat ion on the basis of race, color, or national origin; the Age Discrimination Act of 1975, as amended, which prohibits discrimination on the basis of age; Title VIII of the Civil Rights Act of 1968, as amended, and Executive Order 11063 which prohibits discrimination in housing on the basis of race, color, religion, sex, or national origin; Executive Order 11246, as amended which requires equal employment opportunity; and with the Energy Policy, amended and Conservation Act (Pub.L 94-163) which requires mandatory standards and policies relating to energy efficiency. The SUBRECIPIENT shall report its compliance with Section 504 of the Rehabilitation Act whenever so requested by the CITY. The SUBRECIPIEN T shall comply with all applicable requirements of the Americans with Disabiliti es Act (ADA) of 1990, including, but not limited to, those provisions pertaining to emplo yment, program services, transportation, communications, access to facilities, renova tions, and new construction. The SUBRECIPIENT shall comply with all federal laws and regulations pertaining to environmental standards described in 24 CFR Subpart K, except that: a. The SUBRECIPIENT GRHVQRWDVVXPHWKH&,7<¶VHQYLURQPHQWDOUHVSRQVLELOLWLH V described at 570.604, and b. The SUBRECIPIENT GRHVQRWDVVXPHWKH&,7<¶VUHVSRQVLELOLW\IRULQLWLDWLQJW KH review process under the provisions of 24 CFR part 52. 5 9.2 Opportunities for Residents and Civil Rights Compli ance: The SUBRECIPIENT agrees that no person shall on the grounds of race, color, nati onal origin, religion, or sex be excluded from the benefits of, or be subjected to, discr imination under any activity carried out by the performance of this Agreement. To th e greatest feasible extent, lower-income residents of the project areas shall be giv en opportunities for training and employment; and to the greatest feasible extent, elig ible business concerns located in or owned in substantial part by persons residing in the proj ect areas shall be awarded contracts in connection with the project. 9.3 Evaluation and Monitoring: The SUBRECIPIENT agree s that the CITY will carry out periodic monitoring and evaluation activities as determi ned necessary and that the continuation and/or renewal of this Agreement is depen dent upon satisfactory evaluation conclusions. Such evaluations will be based on the terms o f this Agreement, comparisons of planned versus actual progress relating to activit y scheduling, budgets, audit reports, and output measures. The SUBRECIPIENT agrees to furnish upon request to the CITY and make copies of transcriptions of such records and information as is determined necessary by the CITY. The SUBRECIPIENT shall submit on a schedule set by the CITY and at other times upon request , information and status reports required by the CITY to enable the evaluatio n of said progress and to allow for completion of reports required of the CITY by HUD. Th e SUBRECIPIENT shall allow the CITY or HUD to monitor its agency on site. Such site visit s may be scheduled or unscheduled as determined by the CITY or HUD. 9.4 Audits: Nonprofit organizations that expend $500,000 or more an nually in federal awards shall have a single or program specific audit conducted accordance with OMB A- 133. Nonprofit organizations that expend less than $5 00,000 annually in federal awards shall be exempt from an audit conducted in accordance wit h OMB A-133, although their records must be available for review. These agencies are r equired by the CITY to VXEPLW³UHGXFHGVFRSH´DXGLWVHJILQDQFLDODXGLWVSHUI RUPDQFHDXGLWV(DFKDXGLW shall cover a time period of not more than 12 months a nd an audit shall be submitted covering each assisted period until all the assistance receive d from this agreement has been reported on. A copy of the audit report must b e received by the CITY no later than six months following each audit period. The SUBRECIPIENT shall maintain all records in accordance with generally accepted accounting principles, procedures, and practices which shall suf ficiently and properly reflect all revenues and expenditures of funds provided directly or indirectly by the CITY pursuant to the terms of this agreement. 9.5 Uniform Administrative Requirements: The SUBRECIPIENT agrees to maintain books, records and documents in accordance with accounting procedures and practices which sufficiently and properly reflect all expenditures of fun ds provided by the CITY under this Agreement. The SUBRECIPIENT is required to comply wi th the following uniform administrative requirements: a. Specific provisions of the uniform administrative requir ements of OMB Circular A- 110, as implemented at 24 CFR Part ³8QLIRUP$GPLQLVWUDWLYH5HTXLUHPHQWVIRU Grants and Agreements with Institutions of Higher Educatio n, Hospitals and Other Non-3URILW2UJDQL]DWLRQV´ b. OMB Circular A-³&RVW3ULQFLSOHVIRU1RQ -3URILW2UJDQL]DWLRQV´DOLVWRIDOORZDEOH and unallowable costs appears in Attachment B ). 6 c. Applicable provisions of 24 CFR 570.502. 9.6 Lobbying Prohibition: The SUBRECIPIENT shall certify that no federal appropriated funds have been paid or will be paid, by or on behal f of the undersigned, to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any fe deral Agreement, the making of any federal grant, the making of any federal loan, the entering into of any cooperative Agreement, and the extension, continuation, renewal, amendment, or modification of any federal Agreement, grant, loan, or cooperative Agreement. The SUBRECIPIENT shall disclose to the CITY if any fun ds other than federal appropriated funds have been paid or will be paid to an y person for influencing or attempting to influence an officer or employee of any a gency, a Member of Congress, an officer or employee of Congress, or an employee of a Me mber of Congress in connection with this federal Agreement. 9.7 Section 3 Requirements: The SUBRECIPIENT agrees to comply with all Section 3 requirements applicable to contracts funded through this Agreement. Information on Section 3 is available from the CITY upon request. The SUBRECIPIENT shall include the following, referred to as the Section 3 Clause, i n every solicitation and every contract for every Section 3 covered project: Section 3 Clause a. The work to be performed under this agreement is subjec t to the requirements of Section 3 of the Housing and Urban Development Act of 1968, as amended, 12 U.S.C. 1701 (Section 3). The purpose of Section 3 is to ensure that employment and other economic opportunities generated by HUD assistance o r HUD-assisted projects covered by Section 3, shall to the greatest exten t feasible, be directed to low-and very low-income persons, particularly persons who a re recipients of HUD assistance for housing. b. The parties to this agreement agree to comply ZLWK+8'¶VUHTXLUHPHQWVLQ&)5 Part 135, which implement Section 3. As evidenced by t heir execution of this agreement, the parties to this agreement certify that they are under no contractual or other impediment that would prevent them from complyin g with the Part 135 regulations. c. The SUBRECIPIENT agrees to send to each labor organizati on or representative of workers with which the SUBRECIPIENT has a collective barga ining Agreement or other understanding, if any, a notice advising the lab or organization or workers representative of the SUBRECIPIENT ¶VFRPPLWPHQWXQGHUWKLV6HFWLRQFODXVH and will post copies of the notice in conspicuous places at the work site where both employees and applicants for training and employment posit ions 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 apprent iceship and training positions, the qualifications for each, and the name and location of t he person(s) taking applications for each of the positions, and the anticipated date the work shall begin. 7 d. The SUBRECIPIENT 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 provisi on 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 SUBRECIPIENT wil l not subcontract with any subcontractor where the SUBRECIPIENT has notice or knowle dge that the subcontractor has been found in violation of the regul ations in 24 CFR Part 135 . e. The SUBRECIPIENT wi ll certify that any vacant employment positions, includin g training positions, that are filled (1) after the SUBR ECIPIENT is selected but before the contract is executed and (2) with persons other than t hose to whom the regulations of 24 CFR Part 135 require employment opp ortunities to be directed, were not filled to circumvent the SUBRECIPIENT ¶VREOLJDWLRQVXQGHU&)53DUW 135. f. 1RQFRPSOLDQFHZLWK+8'¶VUHJXODWLRQVLQ&)53DUWP D\UHVXOWLQVDQFWLRQV termination of this contract for default, and debarment or suspension from future HUD assisted contracts. 9.8 Insurance: The SUBRECIPIENT shall furnish to the CI TY, c/o the Community Improvement Department, certificate(s) of insurance evide ncing coverage that meets the requirements outlined in Attachment C. 9.9 Property: Any real property under the SUBRECIPIENT ¶VFRQWUROWKDWZDVDFTXLUHGRU improved in whole or in part with CDBG funds received from the CITY in excess of $25,000 shall be either: a. Used to meet one of the three CDBG national objective s required by and defined in 24 CFR Part 570.208 for five years following the expir ation or termination of this agreement, or for such longer period of time as deter mined by the CITY; or b. Not used to meet a CDBG national objective, in which case th e SUBRECIPIENT shall pay to the CITY an amount equal to the market value of the property as may be determined by the CITY, less any proportionate portion of the value attributable to expenditures of non-CDBG funds for acquisition of, or imp rovement to, the property. Reimbursement is not required after the period of tim e specified in Paragraph 9.9.a., above. Any real property under the SUBRECIPIENT ¶VFRQWUROWKDWZDVDFTXLUHGRULPSURYHGLQ whole or in part with CDBG funds from the CITY for $2 5,000 or less shall be disposed of, at the expiration or termination of this contract, in accordance with instructions from the CITY. All real property purchased in whole or in part with fund s from this and previous agreements with the CITY, or transferred to the SUBR ECIPIENT after being purchased in whole or in part with funds from the CITY, shall be listed in the property records of the SUBRECIPIENT and shall include a legal description, size , date of acquisition, value at time of acquisition, present market value, p UHVHQWFRQGLWLRQDGGUHVVRUORFDWLRQRZQHU¶V name if different from the SUBRECIPIENT, information on the transfer or disposition of the property, and map. The property records shall describ e the programmatic purpose for which the property was acquired and identify the CDBG national objective that will be met. If the property was improved, the records shall descr ibe the programmatic purpose for which the improvements were made and identify the CD BG national objective that will be met. 8 All nonexpendable personal property purchased in whole o r in part with funds from this and previous agreements with the CITY shall be listed in the property records of the SUBRECIPIENT and shall include a description of the prop erty, location, model number, PDQXIDFWXUHU¶VV erial number, date of acquisition, funding source, unit cost at the time of acquisition, present market value, property inventory num ber, information on its condition, and information on transfer, replacement, or disposition of the property. The SUBRECIPIE NT shall obtain prior written approval from the CITY for the disposition of real property, expendable personal property, and non expendable personal property purchased in whole or in part with funds given to the S UBRECIPIENT pursuant to the terms of this agreement. The SUBRECIPIENT shall dispose of all such property in accordance with instructions from the CITY. Those instructi ons may require the return of all such property to the CITY. 9.10 Reversion of Assets: The SUBRECIPIENT shall return to the CITY, upon expirati on or termination of this Agreement, all the assets owned or held as a result of this Agreement, including, but not limited to any funds on hand, any accounts receivable attributable to these funds, mortgages, notes, and oth er collateral and any overpayments due to unearned funds or costs disallowed pursuant to the terms of this Agreement that were disbursed to the SUBRECIPIENT by the CITY. The S UBRECIPIENT shall within 30 days of expiration or termination of this Agreement execute any and all documents as required by the CITY to effectuate the reversion of asse ts. Any funds not earned, as described and provided for in OMB A-122, by the SUBRECI PIENT prior to the expiration or termination of this Agreement shall be retained by the CITY. 9.11 Conflicts with Applicable Laws: If any provision of this agreement conflicts with any applicable law or regulation, only the conflicting prov ision shall be deemed by the parties hereto to be modified to be consistent with the law or regulation or to be deleted if modification is impossible. However, the obligations und er this agreement, as modified, shall continue and all other provisions of this agreement sh all remain in full force and effect. 9.12 Renegotiation or Modification: Modifications of provisions of the agreement shall be valid only when in writing and signed by duly author ized representatives of each party. The parties agree to renegotiate this agreement if t he CITY determines, in its sole and absolute discretion, that federal, State and/or CITY re visions of any applicable laws or regulations, or increases or decreases in budget allocatio ns make changes in this agreement necessary. 9.13 Right to Waive: The CITY may, for good and sufficient cause, as determin ed by the CITY in its sole and absolute discretion, waive provisio ns in this agreement or seek to obtain such waiver from the appropriate authority. Wai ver requests from the SUBRECIPIENT shall be in writing. Any waiver shall no t be construed to be a modification of this agreement. 9.14 Disputes: In the event an unresolved dispute exists between the S UBRECIPIENT and the CITY, the CITY shall refer the questions, includin g the views of all interested parties and the recommendation of the CITY, to the City Mana ger for determination. The City Manager, or an authorized representative, will issue a determination within 30 calendar days of receipt and so advise the CITY and the SUBRECIP IENT, or in the event additional time is necessary, the CITY will notify the SUBREC IPIENT within the 30 day 9 period that additional time is necessary. The SUBRECIP IENT agrees that the City 0DQDJHU¶VGHWHUPLQDWLRQVKDOOEHILQDODQGELQGLQJRQDOOSDUWLHV 9.15 Indemnification: To the extent provided by law, the SUBRECIPIENT shall indemnify and hold harmless and defend the CITY, its agents, employee s, and elected officers from and against any and all claims, demands or causes of action of whatsoever kind or nature arising out of error, omission, negligent act, condu ct or misconduct by the SUBRECIPIENT, its agents, employees or officers in the per formance of services under this Agreement. IN WITNESS OF THE FOREGOING, the parties have set the ir hands and seals on the day and year written above. WITNESSES: FAIR HOUSING CENTER OF THE GREATER PALM BEACHES, INC. ___________________________ By:_________________________________ Print_______________________ ___________________________ Print_______________________ STATE OF FLORIDA COUNTY OF PALM BEACH The foregoing instrument was acknowledged before me th is ___ day of _______________, 20___, by __________________________, who is personally known to me. NOTARY PUBLIC Sign Print Personally Known _______ OR Produced Identification ________ Type of Identification Produced: ___________________________ ATTEST: CITY OF DELRAY BEACH, FLORIDA ____________________ By: City Clerk Mayor Approved as to form: ____________________ City Attorney $77$&+0(17³$´ SCOPE OF SERVICES The major focus of the Fair Housing Center of the Grea ter Palm Beaches, Inc. under this Agreement will be to provide a minimum of six (6) Hou sing Industry Provider / Community Education Sessions for residents of Delray Beach, including sch ool-age children and community organizations, upon the following terms and condition s: a. All six (6) seminars and sessions will be accomplished during the effective date of the contract period (October 1, 2011 through September 30, 2012 ). b. Each seminar or session will be conducted following notifi cation of the Neighborhood Services Division regarding date, location and the submitt al of supporting documentation (i.e. flyers, marketing tools, advertising efforts, etc.). c. Each seminar/session must be adequately marketed to reside nts of Delray Beach, in an effort to ensure maximum participation and effectiveness (copies to be submitted to NS Division prior to seminar/session). d. Reimbursement of expenses will be provided upon completion of each seminar/session, at the predetermined amount of $1,000.00 per seminar/session, with the total maximum reimbursement not exceeding $6,000.00 (for the eight seminars/sessions). e. All seminars/sessions will be open to participants, free of charge f. The Fair Housing Center of the Greater Palm Beaches, Inc. shall provide: 1. Community Education Sessions for civic organizations, communi ty based agencies, social service providers, immigrant populations and/or sch ools within the municipal boundaries of the City of Delray Beach. These sessions sh all be designated to educate the public and protected classes to identify incide nts of discrimination in housing and to gain an understanding of the means to fi nd remedies, to seek redress and relief. Sessions are to be conducted citywide on an ongoing basis during the program year. A minimum of four (4) sessions shall be co nducted during the period beginning October 1, 2011 and ending September 30, 201 2. One (1) of the sessions will focus on the education of children about housing di scrimination. 2. Housing Industry Provider Education Seminars for developers, real estate brokers, property managers, financial institutions, and the media /advertising industry. The seminars shall provide information on fair housing laws, Co mmunity Reinvestment Act regulations and affirmative marketing requirements. A minimum of two (2 ) seminars shall be conducted during the period beginning Oc tober 1, 2011 and ending September 30, 2012. $77$&+0(17³%´ * Allowable under limited circumstances. ** Allowable only with prior permission from the CITY. *** Allowable only as a direct cost with permission from t he CITY. ALLOWABLE AND UNALLOWABLE COSTS UNDER OMB A-122 ITEM OF COST OMB A-122 (NONPROFITS) Unallowable Allowable Advertising Bad debts Bonding Communication Compensation, personnel services Contingency provisions Contributions (to others) Depreciation, use allowance Donations (from others) Employee morale, health, welfare Entertainment Equipment ** Fines, penalties Fringe benefits Fund raising, interest, investment management Idle facility, idle capacity Insurance & indemnification Interest Labor relations Lobbying Losses on other awards Maintenance, repair Materials, supplies Memberships, subscriptions, professional activity Organization costs ** Overtime, shift premiums ** Page charges in professional journals (research) Participant support costs ** Patent costs Pension plans Plant security Pre-award costs ** Professional services Profits, losses on asset disposition * Public information service *** Publication and printing costs *** Rearrangement, facility alteration ** Reconversion costs Recruiting Relocation * $77$&+0(17³%´ * Allowable under limited circumstances. ** Allowable only with prior permission from the CITY. *** Allowable only as a direct cost with permission from t he CITY. ITEM OF COST OMB A-122 (NONPROFITS) Unallowable Allowable Rental Royalties, use of patents, copyrights Severance pay Specialized service facilities Taxes Termination-related costs Training, education Transportation Travel * $77$&+0(17³&´ INSURANCE REQUIREMENTS :25.(5¶6&203(16$7,21 This coverage shall include :RUNHU¶V&RPSHQVDWLRQ,QVXUDQFHFRYHULQJDOOHPSOR\HHVDQG LQFOXGH(PSOR\HU¶V/LDELOLW\ZLWKOLPLWVPHHWLQJDOODS SOLFDEOHVWDWHDQGIHGHUDOODZV7KLV FRYHUDJHPXVWH[WHQGWRDQ\VXEFRQWUDFWRUWKDWGRHVQRWKDYHWKHLURZQ:RUNHU¶V Compensation and Employ HU¶V/LDELOLW\,QVXUDQFH7KLUW\GD\VQRWLFHRIFDQFH OODWLRQLV required and must be provided to the CITY via Certif ied Mail. COMMERCIAL GENERAL LIABILITY 7KLVFRYHUDJHVKDOOEHRQDQ³2FFXUUHQFH´EDVLV&RYHUDJHVKD OOLQFOXGH3UHPLVHVDQG Operatio QV,QGHSHQGHQW&RQWUDFWRUV¶3URGXFWVDQG&RPSOHWHG2SH UDWLRQVDQG&RQWUDFWXDO Liability. This policy shall provide coverage for death, personal injury or property damage that could arise directly or indirectly from the performance of this Agreement. The Minimum Limits of Coverage shall be ($1,000,000) pe r occurrence, Combined Single Limit for bodily Injury Liability and Property Damage Liabili ty. THE CITY OF DELRAY BEACH MUST BE NAMED AS AN ADDITI ONAL INSURED ON THE COMMERCIAL GENERAL LIABILITY POLICY . Thirty (30) days written notice must be provided to the CITY via Certified Mail in the event of cancellation. BUSINESS AUTOMOBILE LIABILITY The minimum limits of coverage shall be ($500,000) per occurrence, Combined Single Limit for Bodily Injury Liabili W\DQG3URSHUW\'DPDJH/LDELOLW\7KLVFRYHUDJHVKDOOEH DQ³$Q\$XWR´W\SH policy. The CITY must be listed as an Additional Insured under the Policy. Thirty (30) days written notice must be provided to the CITY via Certified Mai l in the event of cancellation. In the event that the SUBRECIPIENT does not own any vehicles, we will accept hired and non- owned coverage in the amounts listed above. In add ition, we will require an affidavit signed by the SUBRECIPIENT indicating the following: does not own any vehicles. "Company Name" In the event we acquire any vehicles throughout the term of his Contract/Agreement, agrees to purchase "Any Auto" or "Company Name" Comprehensive Form coverage as of the date of acqui sition. The SUB RECIPIENT ¶V6LJQDWXUHBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBB BBB MEMORANDUM TO:Mayor and City Commissioners FROM:Lula Butler, Director, Community Improvement THROUGH:David Harden, City Manager DATE:December 20, 2011 SUBJECT:AGENDA ITEM 8.I. - REGULAR COMMISSION MEETING OF JANUARY 3, 2012 AMENDMENT TO THE THIRD ADDENDUM TO CONTRACT FOR SALE AND P URCHASE/ 2216 N.E. 3RD AVENUE ITEM BEFORE COMMISSION Staff requests City Commission approval of Amendmen t to the third addendum to the contract to sell/transfer one (1) NSP property to the Delray Be ach Community Land Trust (DBCLT) for the benefit and resale of the unit to a household with an incom e less than one-hundred twenty percent (120%) of Area Median Income (AMI) as determined by HUD. BACKGROUND The original contract for sale was approved by the Commission at the regular meeting of October 18, 2011. The repayment from the sale of the property f rom the DBCLT to the City has changed from $95,350 to $91,350 based on the new appraised value . This item is for the sale/transfer of the property addressed as 2216 NE 3 rd Avenue, Delray Beach, FL 33444. RECOMMENDATION Staff is recommending approval of the amendment to the third addendum of the contract to revise the amount of repayment back to the City from $95,350 t o $91,350. MEMORANDUM TO:Mayor and City Commissioners FROM:Lula Butler, Director, Community Improvement THROUGH:David Harden, City Manager DATE:December 28, 2011 SUBJECT:AGENDA ITEM 8.J. - REGULAR COMMISSION MEETING OF JANUARY 3, 2012 REVISED WORKFORCE HOUSING CONVENANT /BAMFOUR, LLC/ DKB REALT Y INVESTMENT, INC./MATHIAS DEVELOPMENT ITEM BEFORE COMMISSION City Commission consideration of a revised Workforc e 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 Deve lopment Regulations (LDR's). BACKGROUND The lending institution for the Midtown project has requested that the City make the following changes to the Workforce Housing Covenant: (1) Under Recitals, C, that rental rates do not exc eed a certain percentage of the rent limits for the area as published by the Florida Housing Finance Corpora tion. (2) Under II Rental Units, 2.3 - requires that all moderate-income households shall comply with the underwriting criteria established by the developer for all tenants. RECOMMENDATION Staff is recommending City Commission approval of t he revised Workforce Housing Covenant as proposed between the City and Bamfour, LLC, DKB Rea lty Investment, 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 Florida Housing Finance Corpor ation rent limits for the area. 2 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. 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. 3 1.10. Household – A single person living alone, or two or more persons sharing residency, with a combined income available to cover household expenses. 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. However, the Developer shall be under no obligation to rent a Uni t to any particular 4 Moderate Income Household and may use its standard underwriting crite ria to qualify all 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 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 5 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. 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 6 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 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 7 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 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. 8 d. Workforce Housing Unit resales shall be limited to Households of the same category relative to income. 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. 9 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. 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. 10 d. Household size. 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 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, 11 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. 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 12 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 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: 13 Notices to the City shall be sent to: City of Delray Beach 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: 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. 14 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 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 15 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 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:David T. Harden, City Manager DATE:December 22, 2011 SUBJECT:AGENDA ITEM 8.K. - REGULAR COMMISSION MEETING OF JANUARY 3, 2012 RATIFICATION TO THE KIDS AND COPS COMMITTEE ITEM BEFORE COMMISSION This item is before the City Commission for ratific ation to the Kids and Cops Committee. BACKGROUND Mr. Adrian Ralkauskas was appointed to the Kids and Cops Committee on November 2, 2011, as the representative for the Police Department due to the resignation of Mr. Edward Smith. The term is unexpired ending on November 11, 2013. The Kids and Cops Committee was established as an A dvisory Board to the City Commission in May, 1994 with the adoption of Ordinance No. 20-94. Its primary goal is to strengthen the relations hip between the local youth of our community and member s of the Delray Beach Police Department through various programs and activities. It is comp osed of representatives from the City’s Police and Parks and Recreation Departments, as well as, repre sentatives from the Delray Beach public schools. Over the years, membership has evolved to include “At Large Representatives” which has provided the opportunity for interested residents t o participate in the program. The City Commission directly appoints members to fill the “Citizen At L arge Representative” and “At Large Representative ” category. The other appointments are made by the va rious groups involved and presented to the Commission for ratification. The current appointee for ratification is: Organization Represented Adrian Ralkauskas Police Department A check for code violations and/or municipal liens was conducted. None were found. Voter registration verification was completed and he is registered to vote. RECOMMENDATION Recommend ratification of appointment of one (1) re presentative from the Police Department to serve on the Kids and Cops Committee for an unexpired ter m ending on November 11, 2013. KIDS AND COPS 11/11 TERM EXPIRES REGULAR MEMBERS ORGANIZATION REPRESENTED 11/30/2013 Ratified 02/07/06 Reappt 11/07/07 Ratified 12/11/07 Reappt 09/02/09 Ratified 11/17/09 Reappt 10/05/11 Ratified 11/01/11 William J. Fay, Jr. (Principal) Banyan Creek Elem. 11/30/2013 Ratified 02/07/06 Reappt 11/07/07 Ratified 12/11/07 Reappt 09/02/09 Ratified 11/17/09 Reappt 10/05/11 Ratified 11/01/11 Yvonne Odom Carver Middle PBC School District 11/30/2013 Unexp Appt 09/06/06 Ratified 11/17/06 Reappt 11/07/07 Ratified 12/11/07 Reappt 09/02/09 Ratified 11/17/09 Reappt 10/05/11 Ratified 11/01/11 Cheryl McKeever Crosspointe Elem. 11/30/2013 Unexp Appt 09/03/08 Ratified 03/17/09 Reappt 09/02/09 Ratified 11/17/09 Reappt 10/05/11 Ratified 11/01/11 Regina Sablo Crosspointe Elem. 11/30/2013 Unexp Appt 09/03/08 Ratified 03/17/09 Reappt 09/02/09 Ratified 11/17/09 Reappt 10/05/11 Ratified 11/01/11 Rona Tata SD Spady Elementary 11/30/2013 Ratified 02/07/06 Reappt 11/07/07 Ratified 12/11/07 Reappt 09/02/09 Ratified 11/17/09 Reappt 10/05/11 Ratified 11/01/11 Danielle Beardsley Parks and Recreation 11/30/2013 Appt 01/03/11 Ratified 05/07/11 Reappt 10/05/11 Ratified 11/01/11 Nicole Guerriero, Chair Police Department 11/30/2013 Unexp Appt 11/02/11 Adrian Ralkauskas Police Department 07/31/2013 Unexp Appt Vacant At Large Representative 07/31/2013 Reappt 02/07/06 Reappt 12/11/07 Reappt 11/17/09 Reappt 08/16/11 Francis Moschette At Large Representative 07/31/2013 Appt 03/03/08 (partial term) Reappt 11/17/09 Reappt 09/06/11 Phyllis Willingham At Large Representative 11/30/2013 Unexp Appt 09/03/08 Ratified 03/17/09 Reappt 09/02/09 Ratified 11/17/09 Reappt 10/05/11 Ratified 11/01/11 Sheila Bethel Pinegrove Elem. 11/30/2013 Appt 10/05/11 Ratified 11/01/11 Sandra Weatherspoon Village Academy 11/30/2013 Unexp Appt 09/03/08 Ratified 03/17/09 Reappt 09/02/09 Ratified 11/17/09 Reappt 10/05/11 Ratified 11/01/11 Angelica Rotondo Orchard View Elem. 07/31/2013 Ratified 02/07/06 Reappt 12/11/07 Reappt 11/17/09 Appt 08/16/11 Cory Cassidy Citizen at Large Representative 11/30/2013 Reappt 09/02/09 Ratified 11/17/09 Reappt 10/05/11 Ratified 11/01/11 Vilguins Louissaint Plumosa Elem. S/City Clerk/Board 11/Kids&Cops MEMORANDUM TO:Mayor and City Commissioners FROM:Linda Karch, Director of Parks and Recreation THROUGH:David T. Harden, City Manager DATE:December 27, 2011 SUBJECT:AGENDA ITEM 8.L. - REGULAR COMMISSION MEETING OF JANUARY 3, 2012 REQUEST TO WAIVE FEES FOR STAFF AND USE OF POMPEY PARK FAC ILITIES FOR THE MLK HOLIDAY CELEBRATION ITEM BEFORE COMMISSION Request City Commission approval to waive field per mit and facility rental fees at Pompey Park for the Dr. Martin Luther King, Jr. Holiday Celebration. BACKGROUND The Dr. Martin Luther King, Jr. Holiday Celebration is an annual event honoring Dr. King for his dedication to the advancement of equality for all A mericans. Ms. Lillie Strainge, Chairperson for the MLK Holiday Celebration, is requesting that the fee s for use of Pompey Park's facilities and staff support be waived. Ms. Strainge is requesting use of "Teddy's Field", field #1, on Saturday, January 14, 2012, from 8:00 a.m. to 12:00 p.m. for their Track & Field Event. The field permit fee is $231.00 including 6% tax. On Monday, January 16, 2012, Ms. Strainge has reque sted use of the gym for activities at the end of th e Memorial Walk. There will be a guest speaker. The total fee for this rental is $1,110.00 including 6 % tax. RECOMMENDATION We recommend that the Dr. Martin Luther King, Jr. D ay celebration be viewed as a City event and that the fees be waived. MEMORANDUM TO:Mayor and City Commissioners FROM:Jasmin Allen, Planner Paul Dorling, AICP, Director of Planning and Zoning THROUGH:City Manager DATE:December 28, 2011 SUBJECT:AGENDA ITEM 8.M. - REGULAR COMMISSION MEETING OF JANUARY 3, 2012 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 December 12, 20 11 through December 30, 2011. BACKGROUND This is the method of informing the City Commission of land use actions, taken by designated Boards, which may be appealed to the City Commission. After this meeting the appeal period shall expire (unless the 10 day appeal period has not occurred). Section 2.4.7(E), Appeals, of the LDRs applies. In summary, it provides that the City Commission hears appeals of actions taken by an approving Board. It also provides that the City Commission may file an appeal. To do so: · The item must be raised by a Commission member. · By motion, action must be taken to place the item o n the next Commission meeting agenda as an appealed item. REVIEW BY OTHERS Planning and Zoning Board Meeting of December 19, 2 011 No appealable items were considered by the Planning and Zoning Board. The following item which was considered by the Board will be forwarded to the Ci ty Commission for action: A. Recommended approval with changes (6 to 0, C lifford Durden absent), of a City-initiated amendment to the Land Development Regulations (LDR), amending Subsection 4.3.3(ZZZ), “Transient Residential Uses”, in order to clarify prohibitions, exemptions/except ions, waivers, and penalties for same and amending Appendix “A”, “Definitions”, in o rder to amend the definition of “Transient Residential Uses” Site Plan Review and Appearance Board Meeting of De cember 14, 2011 1. Approved with conditions (3 to 1, Rustem Kupi disse nting and Shannon Dawson and Nick Sadowsky absent), a request for the addition of thr ee flat wall signs for ABC Carpet and Home , located at 777 South Congress Avenue (east side of Congress Avenue, south of West Atlantic Avenue). The sign packet included installation of a new flat wall sign on the north, south and east elevations and the removal of the existing sign on the west elevat ion. Concurrently, the Board recommended to the City Commission approval of a waiver to LDR Section 4.6.7(E)(7) to allow two flat wall signs that do not face a dedicated street frontage. 2. Approved with conditions (3 to 1), a reques t for a color change for Granger’s Restaurant , located at the northeast corner of NE 6 th Avenue and NE 2 nd Street (215 NE 6 th Avenue). 3. Approved with conditions (4 to 0), a Class I site p lan associated with architectural elevation changes involving installation of an awning, exteri or light fixture and a sliding glass door for 270 East Atlantic Avenue , located on the south side of East Atlantic Avenue , east of SE 2 nd Avenue. 4. Approved with conditions (4 to 0), a Class IV site plan modification, landscape plan and architectural elevation plan associated with the de molition of the Blockbuster building and constructi on of a 4,423 sq. ft. financial institution known as Chase Bank , located within the Delray Town Center at the northeast corner of Linton Boulevard and Milita ry Trail. Concurrently, the Board approved a waiver to LDR Section 4.4.12(F)(2) to reduce the required minimum free standing building area from 6,000 square feet to 4,423 square feet. RECOMMENDATION By motion, receive and file this report. Attachment: Location Map MEMORANDUM TO:Mayor and City Commissioners FROM:Clayton Gilbert, Building Maintenance Superint endent Richard Hasko, P.E., Environmental Services Directo r THROUGH:David T. Harden, City Manager DATE:December 13, 2011 SUBJECT:AGENDA ITEM 8.N.1 - REGULAR COMMISSION MEETING OF JANUARY 3, 2012 PURCHASE AWARD/ MUNICIPAL LIGHTING SYSTEMS ITEM BEFORE COMMISSION This item is before the Commission to approve a Pur chase Award to Municipal Lighting Systems in the amount of $83,160 for the purchase of sixty (60) LE D light fixtures that are Buy America Compliant to install on the decorative street light poles along West Atlantic Avenue. BACKGROUND The decorative street light poles along West Atlant ic Avenue between Swinton and NE/SE 6th Avenue currently are using a light fixture with a 175 watt metal halide lamp; the proposed fixture will utili ze a 90 watt LED light source, providing electrical savi ngs in excess of 40%. Purchase of the LED fixtures is being funded by the Energy Efficiency and Conservation Block Grant (EECBG) which also provides funding for the light f ixture retrofits in City facilities and the Pompey Park sports lighting replacement. The EECBG is a g rant through the American Recovery and Reinvestment Act (ARRA) which requires Buy America Compliant products in most cases. LUMEC was selected as an exclusive supplier of the LED fixtures based on the historic performance of other LUMEC fixtures within the City which have pr ovided a higher quality and lower maintenance lighting product. In addition, there are currently LUMEC LED fixtures in service within the City. Maintaining a single reliable type of fixture enhan ces maintenance efficiencies and reduces response time for addressing repairs. FUNDING SOURCE Funding is available from expenditure account numbe r 101-6352-519-46.95 - EECBG City Lighting Improvements - West Atlantic Avenue Street Lights. RECOMMENDATION Public Works recommends approval of the Purchase Aw ard to Municipal Lighting Systems in the amount of $83,160 for the purchase of sixty (60) LE D light fixtures. MEMORANDUM TO:Mayor and City Commissioners FROM:Paul Dorling, AICP, Director of Planning and Z oning THROUGH:City Manager DATE:December 14, 2011 SUBJECT:AGENDA ITEM 9.A. - REGULAR COMMISSION MEETING OF JANUARY 3, 2012 APPEAL OF ADMINISTRATIVE INTERPRETATION/ BOSTON'S RESTAURAN T ITEM BEFORE COMMISSION The item before Commission is an appeal of the Plan ning and Zoning Director’s interpretation that a conditional use approval is required for the outsid e entertainment (platform deck) for Boston’s Restaurant Phase II expansion. BACKGROUND On November 9, 2011, the Site Plan Review and Appea rance Board approved a Class V site plan (Phase 2) associated with provision of additional on-site parking, construction of three (3) new accesso ry structures for storage and men and women’s restrooms, construction of a new outdoor bar, pla tform deck, lobster cooker hut and outdoor seating and di ning areas on property previously occupied by Bermuda Inn (south of existing Boston’s Restaurant). These improvements include an outsid e entertainment stage (platform deck) that will provi de opportunities for outside entertainment. On December 5, 2011, Attorney Alan J. Ciklin Esq. o f Casey, Ciklin, Lubitz, Martens & O'Connell law firm located in West Palm Beach, Florida, filed an appeal of the Planning & Zoning Department Director’s Interpretation that the Land Development Regulati ons require a conditional use for the outside entertainment (platform deck) proposed for Boston’s Restaurant expansion area. This requirement was initially identified as a condition of approval and referenced in the staff report. Wh ile SPRAB removed it as a condition of approval, it is staff’s position that this LDR requirement continues to apply. The applicant disagrees with this interpr etation, which is the subject of the appeal. The determination that a conditional use approval i s required is consistent with how this type of outd oor entertainment venue has been handled in the past. T he only legally established outside venue of this type is the approval received as part of the redeve lopment of Block 85 formally known as Grove Square. This outside stage area was approved in con junction with City Limits restaurant (currently known as IL Bacio) as a Conditional use pursuant to LDR Section 4.6.6(A)(2) [attached] which states that, “Certain conditional uses that are allowed within co mmercial, industrial and mixed use districts can be characterized as outside uses. Such operatio ns may be conducted outside when specifically determined through the conditional use process that the outside aspects of the use are appropriate. Conditions may be applied to mitigate visual and ot her impacts”. Pursuant to LDR Section 4.6.6(A) (1), all commercia l and industrial uses are to be conducted within a completely enclosed building, rather than outside, regardless of zoning district. However, certain aspects of a use may be conducted outside and these are identified in LDR Section 4.6.6(B). This section has several categories (including outside d ining), but does not include outside entertainment. However, it does include a catch-all reference to “activities associated with outside conditional uses pursuant to 4.6.6(A)(2)“, which would include uses not specifically listed in cluding outdoor entertainment. While the applicant may argue that the outside ente rtainment is an accessory use to the restaurant, su ch use is not listed as an accessory use in LDR Sectio n 4.4.13 (C) (accessory uses allowed in the CBD). Further, to assume that all restaurant uses may inc lude accessory outside entertainment would set a dangerous precedent. APPEAL While SPRAB removed the conditional use requirement for the outside entertainment (platform deck) as a condition of approval, it is staff’s position that the conditional use approval is sti ll required (not under Section 4.4.13 (D) (9), as referenced in the original staff report, but under Section 4.6.6 [outside uses]). The applicant disagrees with this interpret ation (under either LDR section), and this is the subject of the appeal. The appeal of the Director’s interpretation of LDR Section 4.4.13.(D) (9), lis ts the following grounds for overturning the Planning & Zoning Director’s in terpretation: The reason for SPRAB’s elimination of this condition is that they believ ed, as does the appellant/property owner, that this section does no t apply to accessory entertainment provided at Boston’s. In the CBD District, restaurants, outdoor caf és, and cocktail lounges are permitted uses. However playhouses, dinner theaters, and plac es of assembly for commercial entertainment purposes (e.g., concerts, live performances) requir e conditional uses. Boston ’s Restaurant does not fall within the categories outlined above, thus the appe llant/property owner requests that this condition b e stricken from the approval as not being applicable. In closing, the appellant proclaims that providi ng music at a restaurant is similar to other establish ments on Atlantic Avenue which presumably are permitted without conditional use approval. The acc essory music that will be provided at Boston ’s Restaurant is not a “playhouse”, “dinner theater”, or “place[s] of assembly for commercial entertainment purposes”. It is clear to the appellant/property owner and to SPRAB that this conditional use requirement meant what it said and it does not apply to accessory music at a restaurant similar to other establishments on Atlantic Avenue. While staff would agree that the initially referenc ed LDR section may not apply to this outdoor entertainment function, a conditional use approval would still be required to comply with the above referenced LDR Section (4.6.6) relating to outside uses. At the last Commission meeting Mr. Ciklin stated th at he and his client would attempt to work out a resolution to the conflict with the neighboring pro perty owner over this issue. We have heard nothing from Mr. Ciklin as to whether or not this effort wa s successful. RECOMMENDATION Deny the appeal and require the applicant to comply with the Land Development Regulations with respect to Section 4.6.6, requiring a conditional u se for the outside entertainment function for Bosto n’s Restaurant. IN THE CITY COMMISSION CHAMBERS OF THE CITY OF DELRAY BEACH, FLORIDA ORDER OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA OF THE APPLICANT’S APPEAL OF THE PLANNING DIRECTOR’S INTERPRETATION REGARDING THE OUTDOOR ENTERTAINMENT FUNCTION OF PHASE II OF BOSTON’S REST AURANT 1. This appeal of the Planning Director’s interpretat ion regarding the outdoor entertainment function of Phase II of Boston’s Restauran t came before the City Commission on January 3, 2012. 2. The City staff, applicant, and other persons have p resented documentary evidence and testimony to the City Commission pertainin g to the appeal of the Planning Director’s interpretation regarding the outdoor entert ainment function of Phase II of Boston’s Restaurant. All of the evidence is part of the record in this case. 3. LDR Sections 4.4.13(D)(9) and 4.6.6. a. Pursuant to LDR Section 4.4.13(D), “Conditional Use s and Structures Allowed” within the Central Business District, Subsection (9): (9) Playhouses, dinner theaters, and places of assembly fo r commercial entertainment purposes (e.g., concerts, live performances). b. Pursuant to LDR Section 4.6.6, “Commercial and I ndustrial Uses to Operate within a Building”, Subsections (A), “Intent” and (B) “Allowable Outside Usage”: Section 4.6.6 Commercial and Industrial Uses to Operate Within a Building : (A) Intent : (1) All commercial and industrial uses shall conduct within a completely enclosed building rather than outside regard less of the zoning district. However, certain aspects of a use may be conducte d outside and such aspects are identified in (B) below. 2 (2) Certain conditional uses that are allowed within commercial, industrial, and mixed use districts can be characterized as outside uses. Such operations may be conducted outside when it is specifi cally determined through the conditional use process that the outside aspects of the use are appropriate. Conditions may be applie d to mitigate visual and other impacts. (3) Commercial and industrial uses may be allowed out side on a temporary basis for special events pursuant to Section 2 .4.6(F). (B) Allowable Outside Usage : The following aspects of a use may be conducted outside, pursuant to the restrictions listed in S ection 4.6.6(C) below. (1) Off-street parking (2) Refuse and service areas (3) Storage of nursery plants (4) Fruit and vegetable displays (5) Signage (6) Outside dining areas (7) Loading and unloading of materials (8) Outside storage where specifically permitted within a zoning district (9) Activities associated with outside conditional uses, pur suant to (A)(2) above (10) Retail displays Is a conditional use required per LDR Sections 4.4.13(D) and/or 4.6.6 for the outdoor entertainment function at Boston’s Restaura nt? Yes ______ No______ 5. The City Commission has applied the Comprehensive P lan and LDR requirements in existence at the time the original site plan was submitted. 6. 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 3 in the record including but not limited to the staff r eports, testimony of experts and other competent witnesses which supports the findings set forth in this Order. 7. Based on the entire record before it, the City Co mmission approves ____ denies ____ the applicant’s appeal of the Planning Dir ector’s interpretation regarding the outdoor entertainment function of Phase II of Bost on’s Restaurant and hereby adopts this Order this _3rd ___ day of January, 2012, by a vote of _____ in favo r and _____ opposed. ________________________________ Nelson S. McDuffie, Mayor ATTEST: ________________________________ Chevelle Nubin City Clerk 4 MEMORANDUM TO:Mayor and City Commissioners FROM:R. Brian Shutt, City Attorney DATE:December 29, 2011 SUBJECT:AGENDA ITEM 9.B. - REGULAR COMMISSION MEETING OF JANUARY 3, 2012 AMENDMENT NO. 1 TO THE AGREEMENT BETWEEN THE CITY AND PLA YERS INTERNATIONAL MANAGEMENT, INC. ITEM BEFORE COMMISSION The attached amendment between the City and Players International Management, Inc. (PIM) provides for an extension of the term of the Agreement as we ll as a modification on when the events may be held. BACKGROUND The City entered into an Agreement with PIM on Marc h 6, 2007 whereby PIM agrees to hold (at a minimum) 4 USTA junior tennis tournaments at the Ci ty’s Tennis Center. (Currently eight or nine events are being held each year, and we expect that will continue.) The current agreement will expire on September 30, 2012 and provides that it may be rene wed for two additional five year terms upon the mutual consent of the parties. PIM is requesting th e Agreement be amended to provide that the Agreement be extended for a nine year period, start ing on October 1, 2012 and to provide for one nine year renewal term. This will make the PIM agreement run concurrently wiht the ITC agreement. The current Agreement provides for an increase in the a mount paid by the City each year based upon the increase in the CPI. That language would remain the same. PIM has also requested that the Agreement be modifi ed to provide that events may be held between April to October, rather than listing each month th at an event may be held. Holding the events during these months brings people to the City during the o ff season to fill hotel rooms and patronize our businesses. RECOMMENDATION Commission discretion. 1 AMENDMENT NO. 1 TO THE AGREEMENT BETWEEN THE CITY A ND PLAYERS INTERNATIONAL MANAGEMENT, INC. DATED MARCH 6, 2007 THIS AMENDMENT NO. 1 to the Agreement with PLAYERS INTERNATIONAL MANAGEMENT, INC. is made this _______ day of __________________, 2012 , by and between the CITY OF DELRAY BEACH , a Florida municipal corporation (the “City ”), and PLAYERS INTERNATIONAL MANAGEMENT, INC., (“PIM ”). W I T N E S S E T H : WHEREAS , the City and PIM desire to amend the Agreement to modify the existing term and renewal term and the period in whi ch events may be held. NOW, THEREFORE , for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties he reby agree as follows: 1. The term is hereby amended to provide that this Ag reement is extended for a period of nine (9) years beginning October 1, 2012. This Agreement may be extended upon the mutual consent of both part ies for one additional nine (9) year term. 2. PIM will hold the Events annually in the months from Apr il to October, in accordance with the terms and conditions of the Agreemen t. However, PIM shall be required to obtain the consent of the City if a major event is scheduled for the same time period that PIM wishes to hold its event. 3. PIM agrees that any use of the tennis courts or facilities lo cated at the Delray Swim and Tennis Club shall be based upon obtain ing the consent of the City prior to such use and such consent may be withheld by the City , in its sole and absolute discretion. 2 4. Applicability . All other terms of the original Agreement and ame ndments thereto remain in full force and effect, except as expr essly modified herein. 5. Effective Date . This Amendment shall not be effective until it is ap proved by the City Commission and signed by both of the parti es to this Agreement. IN WITNESS WHEREOF , the parties hereto have caused this Amendment No. 1 to be executed this _____ day of _______________, 201 2. ATTEST: CITY OF DELRAY BEACH, FLORIDA _____________________________ By: __________________________ City Clerk Nelson S. McDuffie, Mayor Approved as to form: _____________________________ City Attorney WITNESSES: PLAYERS INTERNATIONAL MANAGE- MENT, INC. _____________________________ By: __________________________ _____________________________ __________________________ (Name printed or typed) (Name printed or typed) _____________________________ _____________________________ (Name printed or typed) STATE OF FLORIDA COUNTY OF PALM BEACH The foregoing instrument was acknowledged before me th is ____ day of _____________________, 2012 by ___________________________ (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 ident ification) as identification. _________________________________ Signature of Notary Public - State of Florida MEMORANDUM TO:Mayor and City Commissioners FROM:Robert A. Barcinski, Assistant City Manager THROUGH:David T. Harden, City Manager DATE:December 22, 2011 SUBJECT:AGENDA ITEM 9.C. - REGULAR COMMISSION MEETING OF JANUARY 3, 2012 SPECIAL EVENT REQUEST / VIVA SOUTH FLORIDA ITEM BEFORE COMMISSION Commission is requested to approve a new event “VIV A South Florida” produced by Pegasus Entertainment proposed to be held on the grounds of Old School Square and Old School Square Park on September 14-15, 2012 from noon to 11:00 p.m., and September 16, 2012 from noon to 8:00 p.m. Commission is also requested to approve staff support for traffic control and security, Fire/EMS services, site cleanup and trash removal, electrici an assistance, barricading assistance, event signag e, trash boxes, use of a City generator and to grant a temporary use permit per LDR’s Section 2.4.6(F) for the use of City rights-of-way to include NE 1 st Avenue from the north side of the Old School Squar e grounds to south of the garage entrance and Swinton from Atlantic to approximately the southernmost driveway entrance to the Crest Theatre. BACKGROUND Attached are a letter, special event permit, site p lan, budget and economic calculator received from M r. Carrillo, CEO Pegasus Entertainment. The proposed e vent is a Latin American Festival designed to be a kickoff event for Hispanic Heritage month. The West Palm Beach Hispanic Chamber of Commerce is supporting this event. Delray Beach has been select ed as the preferred site in Palm Beach County in order to draw from a larger Hispanic population to the south of us. The event producer will be responsible for event management, programming, vend or selection and site fencing. Staff support is requested as noted above. We received a request for the event for last year but the event producer cou ld not get the support agreement in time from the Hisp anic Chamber of Commerce of Palm Beach County, nor could the event producer get all of the approva ls needed. The estimated staff overtime costs is $22,700, tras h boxes $400, and signage $250 for a total cost of $23,350. The event producer is required to pay 100% of City costs. At this time there are no other maj or events proposed for September 2012. RECOMMENDATION Staff recommends consideration of approval for the “VIVA South Florida” event proposed for September 14, 15, and 16, 2012, the temporary use p ermit for use of a portion of Swinton Avenue and NE 1 st Avenue as indicated, staff support as requested, s ignage, trash boxes and use of a generator with the following conditions: 1. Site plan be approved as amended by staff. 2. The City is to be provided with a Certificate of Li ability Insurance from the amusement ride operator ten (10) days prior to the event. 3. The City is to be provided with a copy of the State Inspection Certificate for amusement rides prior to operating any such rides. 4. Reserved parking in the Old School Square garage is limited to 70 spaces. 5. Tents cannot be staked in the ground. Barrels or co ncrete blocks to be used. 6. The event producer must provide City staff an elect rical and water use plan at least two (2) weeks prior to the event. 7. No vehicles will be allowed to drive on the grass a rea of Old School Square Park site. Walkways only to be used for this purpose. 8. Event sponsor to provide onsite dumpster and grease disposal equipment. 9. Signage and banners to be installed no earlier than September 1, 2012. 10.The City is to be provided with copies of executed rental agreements for the Old School Square Park and Old School Square grounds with fees and se curity deposits paid by August 15, 2012. 11.A security deposit is to be paid to the City by Aug ust 15, 2012, in the amount of $3,000, which will be credited against event costs. MEMORANDUM TO:Mayor and City Commissioners FROM:Randal L. Krejcarek, P.E., City Engineer Richard C. Hasko, P.E., Environmental Services Dire ctor THROUGH:David T. Harden, City Manager DATE:December 19, 2011 SUBJECT:AGENDA ITEM 9.D. - REGULAR COMMISSION MEETING OF JANUARY 3, 2012 RFQ FOR ARCHITECTURAL CONSULTING SERVICES/CAPITAL I MPROVEMENT PROJECTS (CIP) ITEM BEFORE COMMISSION This item is before the Commission for approval of the Architectural Consulting Services RFQ (RFQ# 2012-05) responses short list and authorization to negot iate contracts with each of the five companies on the short list. Project #12-056. BACKGROUND On October 2, 2011, a Request for Qualifications wa s issued for Architectural Consulting companies for capital improvement projects contained in the city’s Capital Improvement Program (CIP). Eighteen (18) Architectural companies responded and were reviewed by the selection committee. Based on the number of projects in the CIP the selection committ ee agreed that five firms should be selected. The committee unanimously agreed on the following five (5) companies: Currie Sowards Aguila Architects, Walters Zackria & Associates, Inc., David Miller an d Associates, Slattery & Associates and Bridges Marsh and Associates. Final respondent rankings are based on a weighted t otal of all raters’ individual rankings. Rankings based on totaling raw point scores are used solely for tie breaking. Note that Bridges Marsh & Associates is ranked #5 overall, however, comparing total raw point scores, they would be ranked #11. This is due to one of the five rating committee mem bers scoring them significantly lower than the othe r raters. While RFQ ranking committees are selected to provide a variety of perspectives on the subject discipline, the evaluation process is designed to e nsure that final rankings represent the consensus of evaluators . This RFQ result reflects the validity of the proc ess. After successfully negotiating each contract, the c ontracts will be brought back to commission for approval to execute. Attached is a copy of the rating sheet for all firm s that submitted. RECOMMENDATION Staff recommends approval of the short list and aut horization to negotiate contracts with the short li sted firms. Printed: 12/16/2011 Sort By Overall Rankings Sort By Point Totals Currie Sowards Aguila Architects11Currie Sowards Aguila Architects Walters Zackria Assoc 22Walters Zackria Assoc David R Miller & Associates33David R Miller & Associates Slattery and Assoc 44Slattery and Assoc Bridges Marsh & Associates, Inc.55REG Architects Interiors Planners Corzo Castella Carballo Thompson66Harvard Jolly Architecture REG Architects Interiors Planners67Corzo Castella Carballo Thompson Bermelio Ajamil & Partners88ACAI Associates, Inc. Harvard Jolly Architecture 98Aecom Technical Services Aecom Technical Services1010Bermelio Ajamil & Partners ACAI Associates, Inc.1111Bridges Marsh & Associates, Inc. West Architecture & Design, LLC 1212CPZ Architects CPZ Architects 1313Saltz Michelson Saltz Michelson 1414 West Architecture & Design, LLC Alexis Knight Architects, Inc.1515KZF Design Robling Architecture 1616Robling Architecture KZF Design 1717Alexis Knight Architects, Inc. Richard Jones 1818Richard Jones Architecture RFQ S:\EngAdmin\Projects\2012\12-056\OFFICIAL\Architecture RFQ_- Officia l results Printed: 12/29/2011 Architecture RFQ Individual Score By RankWeightedOverallOverallTotal Individual Score By Points FirmGrieveCostelloMajtenyiBallesteroKrejcarekScoreR ankRankPointsGrieveCostelloMajtenyiBallesteroKrejcar ek ACAI Associates, Inc.10 4 15 8 114711 8 3477184647751 Aecom Technical Services 14 8 10 76 5010 8 3476481687856 Alexis Knight Architects, Inc.88 1716172915172947681475040 Bermelio Ajamil & Partners 15 66 10 6 52 8 103426082727256 Bridges Marsh & Associates, Inc.483 18 8 54 5 113398581744455 Corzo Castella Carballo Thompson6 14 3 14 5 53 67 3538180746157 CPZ Architects58 1213164113123388481666542 Currie Sowards Aguila Architects11213 87 11 4269091759080 David R Miller & Associates2 18 531 66 33 4108776738787 Harvard Jolly Architecture 12 884 1251 96 3577081718550 KZF Design 10161612152617153167177566646 REG Architects Interiors Planners75 12 5 1353 65 3597883668349 Richard Jones 17 6 1817172018182465082314538 Robling Architecture 16151211132816163145578666847 Saltz Michelson9 16 8 15 8 3914133337477715853 Slattery and Assoc 13 2664 64 44 3786990728166 Walters Zackria Assoc33122 84 22 4238687808981 West Architecture & Design, LLC 18 8 11 97 4212143234981677452 C:\Documents and Settings\hasko\Local Settings\Temporary I nternet Files\Content.Outlook\0WWJ3R6Y\Architecture RFQ_- Official results.xls City of Delray Beach General Architectural Consulting Services Page 4 of 37 III. EVALUATION AND SCORING: 6HOHFWLRQZLOOEHLQDFFRUGDQFHZLWKWKH&RQVXOWDQW¶V&RPSHWLWLYH1H JRWLDWLRQV$FW , as amended, Section 287.055, Florida Statutes. The selection process consists of evaluation and scoring by the Selection Committee. Each category will be scored and when the scores awarded for all categories are totaled, the scores will be tabulated and added to achieve the Total Points and Weighted Score awarded to each firm. Both criteria will be used to rank each firm 1,2,3,4, etc. The ranking of each firm will be tabulated from each Committee Member and combined with other Committee Members to determine the total score and weighted score for the firm. 1. Firm experience in south Florida. 2. )LUP¶VSHUVRQQHOTXDOLILFDWLRQV 3. )LUP¶VJRYHUQPHQWDOH[SHULHQFH 4. )LUP¶VDSSURDFKWRSURMHFWPDQDJHPHQW 5. )LUP¶VUHVRXUFHVSHUVRQQHODYDLODELOLW\DQGFRPPLWPHQW Failure to respond to all the items listed above will result in a lower overall score and may hinder your chanc es of being selected. The Scoring Criteria is made up of the categories above that collectively represent a Grand Total Point Value of 100 points, as described herein. The points indicated below as "Points Possible" are the maximum that can be allocated for each category. The point value shall be the basis of establishing a finalist list of the top ranking RFQ submittals. Firm Experience: The firm will be expected to demonstrate its experience with projects similar to those listed in Exhibit A. Particular attention should be given to projects completed with other local government agencies. This information must be included on SF 330. )LUP¶V3HU sonnel Qualifications: The firm shall name the actual Project Manager assigned to the City and other key staff to be assigned to projects, describe their ability and experience and indicate the function of each individual within the organization and their proposed role on City projects. This information must be included on SF 330 )LUP¶V*RYHUQPHQWDO([SHULHQFH7KHILUPVKDOOGHWDLOexperience with other governmental agencies. This information must be included on SF 330 )LUP¶V$SSURDFKWR3URMHFW0DQDJ ement: The firm shall detail approach to be utilized in managing projects including, but not limited to, coordination with other governmental agencies and coordination with other utility companies. City of Delray Beach General Architectural Consulting Services Page 5 of 37 )LUP¶VResources, Personnel Availability and Commitment: The firm shall demonstrate a commitment to completing project on time and within budget. Firm must also demonstrate flexibility to complete projects per FOLHQW¶VVSHFLILFDWLRQV EVALUATION CATEGORIES POINTS POSSIBLE 1. Firm experience in south Florida 25 2. )LUP¶VSHUVRQQHOTXDOLILFDWLRQV 30 3. )LUP¶VJRYHUQPHQWDOH[SHULHQFH 20 4. )LUP¶VDSSURDFKWRS roject management 15 5. )LUP¶VUHVRXUFHVSHUVRQQHODYDLODELOLW\DQGFRPPLWPHQW 10 GRAND TOTAL OF POINTS 100 POINTS If you have any questions concerning the Qualification Package or these instructions, please submit your questions in writing or email only to Randal L. Krejcarek, P.E., City Engineer, 434 South Swinton Avenue, City of Delray Beach, Florida, 33444. Fax number (561) 243-7314. Email krejcarek@MyDelrayBeach.com IV. AWARD OF CONTRACT Based on final rankings resulting from the above described process, the Selection Committee will make a recommendation to the City Commission for the award of the contract to a minimum of three firms. The City intends to initially award two (2) year contracts with an option to renew annually for three (3) additional years, up to a total of five (5) years (2 year contract plus 3 one year renewals). MEMORANDUM TO:Mayor and City Commissioners FROM:R. BRIAN SHUTT, CITY ATTORNEY DATE:December 30, 2011 SUBJECT:AGENDA ITEM 9.E. - REGULAR COMMISSION MEETING OF JANUARY 3, 2012 APPOINTMENT OF OUTSIDE COUNSEL TO ASSIST IN REVIEW OF THE ORDIN ANCE REGARDING TRANSIENT HOUSING ITEM BEFORE COMMISSION Approval of the appointment of outside counsel to a ssist the City Attorney’s Office in the drafting, review and defense of ordinances concerning transie nt residential use as well as reasonable accommodation procedures. BACKGROUND The City Attorney’s Office has been directed to update its ordinances regarding transient residential use and reasonable accommodation procedures. In the pas t the City has used the firm of Weiss Serota at the rate of $215.00 per hour. The Weiss Serota firm has had prior experience in dealing with these issues when they defended the City of Boca Raton. The law firm of Patton Boggs is a national firm and has proposed to assist the City in this matter. Wh ile this firm may not have the prior experience in deal ing with this issue or the local knowledge as it re lates to local and state law, they do appear to have the ability to address this issue on a more national le vel. I have attached their proposed fee structure. While we feel both of these firms are qualified to assist our office in this matter, direction is requ ested on the approach the Commission wishes to take on th is issue The City Attorney’s Office has been directed to update our ordinances regarding transie nt residential use and reasonable accommodation procedures. In the past the City has used the firm of Weiss Serota at the rate of $215.00 per hour. Th e Weiss Serota firm has had prior experience in deali ng with these issues when they defended the City of Boca Raton. RECOMMENDATION Commission discretion. MEMORANDUM TO:Mayor and City Commissioners FROM:Catherine M. Kozol, Esq., Assistant City Attor ney/Police Legal Advisor THROUGH:City Attorney DATE:December 19, 2011 SUBJECT:AGENDA ITEM 9.F. - REGULAR COMMISSION MEETING OF JANUARY 3, 2012 OFFER OF SETTLEMENT IN PATRICIA MILEY V. CITY OF DELRAY B EACH ITEM BEFORE COMMISSION This is a demand from the plaintiff, Patricia Miley , for $9.5 million dollars. BACKGROUND This case originated from an automobile accident on March 11, 2009 where the plaintiff's vehicle and Officer Brown's vehicle collided in an intersection after passing through a yellow flashing signal and a red flashing signal respectively. Ms. Miley sustai ned injuries of a broken pelvis, several fractured ribs, a broken ankle and a laceration on her forehead. T o date, the total medical bills are $364,945.06. RECOMMENDATION The City Adjuster and the City Attorney's Office re commend denial of this demand. MEMORANDUM TO:Mayor and City Commissioners FROM:Catherine M. Kozol, Assistant City Attorney/Po lice Legal Advisor THROUGH:City Attorney DATE:December 19, 2011 SUBJECT:AGENDA ITEM 9.G. - REGULAR COMMISSION MEETING OF JANUARY 3, 2012 APPOINTMENT OF OUTSIDE COUNSEL FOR PATRICIA MILEY V. CITY OF D ELRAY BEACH ITEM BEFORE COMMISSION This is a request to hire outside counsel in the ca se of Patricia Miley v. City of Delray Beach. BACKGROUND Our office recommends that we retain Kent Pratt, Es q. at a rate of $140.00 per hour to act as outside trial counsel in the case of Patricia Miley v. City of Delray Beach due to the serious nature of the allegations involved. RECOMMENDATION The City Attorney's Office recommends approval. MEMORANDUM TO:Mayor and City Commissioners FROM:R. BRIAN SHUTT, CITY ATTORNEY DATE:December 20, 2011 SUBJECT:AGENDA ITEM 9.H. - REGULAR COMMISSION MEETING OF JANUARY 3, 2012 OFFER OF SETTLEMENT IN ANDREA WALLACE ET, AL V. CITY O F DELRAY BEACH ITEM BEFORE COMMISSION Plaintiffs' offer to settle the case of Andrea Wallace, et al. v. City of Delray Beach. BACKGROUND The case stems from an incident that occurred on Ju ne 6, 2010 when a group of children who were in the City’s summer recreation program went on a field trip to Fun Depot in Lake Worth. When the group arrived, all the children exited the van except for Le’Marcus Bonner, who had fallen asleep. Once they arrived inside the building, a count was taken of t he children and it was discovered that he was not w ith the group. As one of the recreational leaders was leaving the building to look for him, a leader fro m another summer group was bringing him inside. The P laintiffs allege that the City’s negligence has caused Le’Marcus to suffer a fear of sleeping in vehicles, an xiety and difficulty performing certain tasks. The Plaintiffs are offering to settle the case for $40,000.00. RECOMMENDATION The City Attorney’s Office recommends denial of Pla intiffs’ offer. MEMORANDUM TO:Mayor and City Commissioners FROM:David T. Harden, City Manager DATE:December 22, 2011 SUBJECT:AGENDA ITEM 9.I. - REGULAR COMMISSION MEETING OF JANUARY 3, 2012 APPOINTMENTS TO THE CODE ENFORCEMENT BOARD ITEM BEFORE COMMISSION This item is before the City Commission for appoint ments to the Code Enforcement Board. BACKGROUND The terms for regular members Mr. Robert Marks, Mr. Kurt Lehmann and Mr. David Boone will expire on January 14, 2012. Mr. Marks will have served two full terms and is not eligible for reappointment. Mr. Lehmann and Mr. Boone will have served unexpired terms, are eligible and would like to be considered for reappointment. Please not e that Ms. Stephanie Sugar is an alternate member and would like to be considered for regular members hip. Appointments are needed for three (3) regular members. All members of the Code Enforcement Board must be r esidents of the City. Appointments to both regular and alternate member positions shall be on the basis of experience or interest in the fields o f zoning and building control. The regular and altern ate membership of the Board shall, whenever possible , include an architect, a business person, an engin eer, a general contractor, a subcontractor and a realtor. 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 appointments will be made by Commissioner Frankel (Seat #3), Commissioner Gray (Seat #4) and Mayor McDuffie (Sea t #5) for three (3) regular members to serve three (3) year terms ending January 14, 2015. RECOMMENDATION Recommend appointment of three (3) regular members to serve on the Code Enforcement Board for three (3) year terms ending January 14, 2015. 10/11 CODE ENFORCEMENT BOARD TERM EXPIRES REGULAR MEMBERS OCCUPATION POSITION FILLING 01/14/2013 Unexp Appt 4/21/11 Jason Dollard Attorney Layperson 01/14/2013 unexp Appt 09/05/06 Reappt 01/02/07 Reg Reappt 01/05/10 Stanley Brodka, Vice Chair Financial Services Layperson 01/14/2014 Appt 01/03/08 reg Unexp Appt 10/2/07 alt Reappt 01/04/11 Kelli Freeman Staffing Manager Business Person 01/14/2013 Unexp Appt 09/06/11 Ronald Gilinsky Sales/Marketing Layperson 01/14/2012 Unexp Alt Appt 01/07/03 Unexp Reg Appt 04/15/03 Reappt 02/07/06 Reappt 01/06/09 Robert Marks, Chair Construction General Contractor 01/14/2012 Unexp Appt 07/05/11 Unexp Appt 05/17/11 alt Kurt Lehmann Realtor Realtor 01/14/2012 Unexp Appt 03/01/11 David Boone Attorney/Educator Layperson ALTERNATES 01/14/2013 Unexp Appt 08/02/11 Robert Wells Retired Layperson 01/14/2013 Unexp Appt 11/01/11 Stephanie Sugar Regional Director Business Person Contact: Danise Cleckley 243-7213 S/City Clerk/Board 11/Code Enforcement Board CODE ENFORCEMENT BOARD EXHIBIT “A” Name Background Mark Behar Self Employed – Investor David Boone Attorney/Educator Incumbent Kurt Lehmann Realtor Incumbent Stephanie Sugar Regional Director Incumbent Jason Whiteman Attorney MEMORANDUM TO:Mayor and City Commissioners FROM:David T. Harden, City Manager DATE:December 22, 2011 SUBJECT:AGENDA ITEM 9.J. - REGULAR COMMISSION MEETING OF JANUARY 3, 2012 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; Ms. Sharon Schwartz is being removed due to missing three (3) consecutive meetin gs. An appointment is needed for one (1) regular member to serve an unexpired ending July 31, 2013. 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 w ith the exception of Mr. John Pasqual. Based on the rotation system, the appointment will be made by Commissioner Carney (Seat #1) for one (1) regular member to serve an unexpired term endin g July 31, 2013. RECOMMENDATION Recommend appointment of one (1) regular member to serve on the Education Board for an unexpired term ending July 31, 2013. 12/11 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 12/06/11 Julia Kadel Director of Admissions 07/31/2013 Unexp Appt Vacant 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: EDUCATION BOARD EXHIBIT A Mary-Elizabeth Cohn Education/Sales & Consultant (also applying for the Si te Plan Review & Appearance Board) Claudia Flores Banking-Assistant Vice President Mary Leavenworth Director/Educator Sandra Owens Educator John Pasqual Surgeon Kevin Warner Educator (currently serving on the Police Advisory Board) MEMORANDUM TO:Mayor and City Commissioners FROM:David T. Harden, City Manager DATE:December 22, 2011 SUBJECT:AGENDA ITEM 9.K. - REGULAR COMMISSION MEETING OF JANUARY 3, 2012 APPOINTMENTS TO THE FINANCIAL REVIEW BOARD ITEM BEFORE COMMISSION This item is before the City Commision for appointm ents to the Financial Review Board. BACKGROUND There are three (3) vacancies on the Financial Revi ew Board due to the resignations of regular member Ms. Rosalie Blood and alternate member Ms. Sharon R oth and the appointment of alternate member Mr. David Stein as a regular member at the November 1, 2011 City Commission meeting. The terms are unexpired ending July 31, 2012, and July 31, 20 13. Since there are only two (2) applicants at thi s time, appointments are needed for one (1) regular m ember and one (1) alternate member. Please note that Mr. Warren Trilling only wishes to be consider ed for regular membership. On October 6, 2009, the Delray Beach City Commissio n adopted Resolution No. 55-09 establishing the Budget Review Committee to review the City’s budget, systems and procedures, technology improvements, or related materials and concepts and make recommendations regarding revenues, salaries and benefits, operating expenses, debt ser vice expenses, capital outlay, grants to other enti ties and transfers to other funds or any other items tha t may favorably impact the City’s budget and overall financial condition. The Commission later adopted Resolution No. 58-09 which renamed the committee as the Financial Review Board with the expanded res ponsibilities of analysis of revenues and expenses and business practices and processes. Resolution No . 05-11 provided further amendments to clarify that the Board’s duties shall fall under the direction of the City Manager or the City Commission and to restrict the membership of the Board. The Financial Review Board shall consist of nine (9 ) members. Five (5) seats on the Board must be filled with a certified public accountant, accounti ng professional, finance professional, certified financial planner, investment advisor, insurance pr ofessional (property/casualty or health), business owner/manager/officer and someone with an MBA or MP A degree. The remaining four (4) members may be at large. 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 appointments will be made by Commissioner Gray (Seat #4) for one (1) regular member to serve an unexpired term endin g July 31, 2012 and Mayor McDuffie (Seat #5) for one (1) alternate member to serve an unexpired term ending on July 31, 2013. RECOMMENDATION Recommend appointment of one (1) regular member to serve on the Financial Review Board for an unexpired term ending July 31, 2012, and one (1) al ternate member to serve an unexpired term ending on July 31, 2013. FINANCIAL REVIEW BOARD 11/11 TERM EXPIRES REGULAR MEMBERS OCCUPATION 07/31/12 Unexp Appt 08/02/11 reg Appt 06/21/11 alt Anthony Cottone Business Owner/Finance 07/31/12 Unexp Appt 11/01/11 David Stein Business Owner 07/31/13 Unexp Appt 04/05/11 Reappt 06/21/11 John Hallahan Assistant Director of Operations/Retired 07/31/12 Unexp Appt Vacant 07/31/13 Appt 11/03/09 Reappt 6/21/11 Christina Morrison, Chair Realtor 07/31/13 Unexp Appt 04/05/11 Reappt 06/21/11 Jeff Ritter Management Consulting Professor 07/31/12 Appt 07/20/10 Luise Piane Executive Management ALTERNATES 07/31/13 Unexp Appt Vacant 07/31/13 Unexp Appt Vacant Contact: Barbara Flynn X-7115 S/City Clerk/Board 12/Financial Review Board FINANCIAL REVIEW BOARD EXHIBIT A Applicants with experience in the professions required: Warren Trilling Certified Public Accountant/Retired (wishes to only be considered for regular membership) Brian Wood Director/Senior Manager-Finance MEMORANDUM TO:Mayor and City Commissioners FROM:David T. Harden, City Manager DATE:December 22, 2011 SUBJECT:AGENDA ITEM 9.L. - REGULAR COMMISSION MEETING OF JANUARY 3, 2012 APPOINTMENT TO THE KIDS AND COPS COMMITTEE ITEM BEFORE COMMISSION This item is before the City Commission for an appo intment to the Kids & Cops Committee. BACKGROUND There is a vacancy on the Kids and Cops Committee d ue to the resignation of Mr. Kenneth Zeno. An appointment is needed for one (1) At Large Represen tative to serve an unexpired term ending July 31, 2013 The Kids and Cops Committee was established as an a dvisory board to the City Commission in May, 1994 with the adoption of Ordinance No. 20-94. Its primary goal is to strengthen the relations hip between the local youth of our community and member s of the Delray Beach Police Department through various programs and activities. It is comp osed of representatives from the City’s Police and Parks and Recreation Departments, as well as, repre sentatives from the Delray Beach public schools. Over the years, membership has evolved to include “At Large Representatives” which has provided the opportunity for interested residents t o participate in the program. The City Commission directly appoints members to fill the “Citizen At L arge Representative” and “At Large Representative ” category. The other appointments are made by the va rious groups involved and presented to the Commission for ratification. The following individual has submitted an applicati on and would like to be considered for appointment: Jennifer Aracri A check for code violations and/or municipal liens was conducted. None were found. Voter registration verification was completed and she is registered. Based on the rotation system, the appointment will be made by Commissioner Alperin (Seat #2) for one (1) At Large Representative to serve an unexpired t erm ending July 31, 2013. RECOMMENDATION Recommend appointment of one (1) At Large Represent ative to serve on the Kids & Cops Committee for an unexpired term ending July 31, 2013. KIDS AND COPS 11/11 TERM EXPIRES REGULAR MEMBERS ORGANIZATION REPRESENTED 11/30/2013 Ratified 02/07/06 Reappt 11/07/07 Ratified 12/11/07 Reappt 09/02/09 Ratified 11/17/09 Reappt 10/05/11 Ratified 11/01/11 William J. Fay, Jr. (Principal) Banyan Creek Elem. 11/30/2013 Ratified 02/07/06 Reappt 11/07/07 Ratified 12/11/07 Reappt 09/02/09 Ratified 11/17/09 Reappt 10/05/11 Ratified 11/01/11 Yvonne Odom Carver Middle PBC School District 11/30/2013 Unexp Appt 09/06/06 Ratified 11/17/06 Reappt 11/07/07 Ratified 12/11/07 Reappt 09/02/09 Ratified 11/17/09 Reappt 10/05/11 Ratified 11/01/11 Cheryl McKeever Crosspointe Elem. 11/30/2013 Unexp Appt 09/03/08 Ratified 03/17/09 Reappt 09/02/09 Ratified 11/17/09 Reappt 10/05/11 Ratified 11/01/11 Regina Sablo Crosspointe Elem. 11/30/2013 Unexp Appt 09/03/08 Ratified 03/17/09 Reappt 09/02/09 Ratified 11/17/09 Reappt 10/05/11 Ratified 11/01/11 Rona Tata SD Spady Elementary 11/30/2013 Ratified 02/07/06 Reappt 11/07/07 Ratified 12/11/07 Reappt 09/02/09 Ratified 11/17/09 Reappt 10/05/11 Ratified 11/01/11 Danielle Beardsley Parks and Recreation 11/30/2013 Appt 01/03/11 Ratified 05/07/11 Reappt 10/05/11 Ratified 11/01/11 Nicole Guerriero, Chair Police Department 11/30/2013 Unexp Appt 11/02/11 Adrian Ralkauskas Police Department 07/31/2013 Unexp Appt Vacant At Large Representative 07/31/2013 Reappt 02/07/06 Reappt 12/11/07 Reappt 11/17/09 Reappt 08/16/11 Francis Moschette At Large Representative 07/31/2013 Appt 03/03/08 (partial term) Reappt 11/17/09 Reappt 09/06/11 Phyllis Willingham At Large Representative 11/30/2013 Unexp Appt 09/03/08 Ratified 03/17/09 Reappt 09/02/09 Ratified 11/17/09 Reappt 10/05/11 Ratified 11/01/11 Sheila Bethel Pinegrove Elem. 11/30/2013 Appt 10/05/11 Ratified 11/01/11 Sandra Weatherspoon Village Academy 11/30/2013 Unexp Appt 09/03/08 Ratified 03/17/09 Reappt 09/02/09 Ratified 11/17/09 Reappt 10/05/11 Ratified 11/01/11 Angelica Rotondo Orchard View Elem. 07/31/2013 Ratified 02/07/06 Reappt 12/11/07 Reappt 11/17/09 Appt 08/16/11 Cory Cassidy Citizen at Large Representative 11/30/2013 Reappt 09/02/09 Ratified 11/17/09 Reappt 10/05/11 Ratified 11/01/11 Vilguins Louissaint Plumosa Elem. S/City Clerk/Board 11/Kids&Cops MEMORANDUM TO:Mayor and City Commissioners FROM:David T. Harden, City Manager DATE:December 22, 2011 SUBJECT:AGENDA ITEM 9.M. - REGULAR COMMISSION MEETING OF JANUARY 3, 2012 APPOINTMENT TO THE SITE PLAN REVIEW AND APPEARANCE BOARD ITEM BEFORE COMMISSION This item is before the City Commission for an appo intment to the Site Plan Review and Appearance Board. BACKGROUND There is a vacancy on the Site Plan Review and Appe arance Board due to the resignation of Mr. Sigurdur Hardester. An appointment is needed for on e (1) regular member to serve an unexpired ending August 31, 2013. To qualify for appointment, a person shall either b e a resident of, or own property in the City, and/o r own a business within the City. In addition, the Ci ty Commission shall fill five seats on the Board wi th an architect, landscape architect, realtor/real est ate broker, civil engineer, general contractor, sig n contractor, land planner or interior designer. The remaining two seats shall be at large. The Commissi on shall endeavor to appoint as many disciplines as po ssible to the board. 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 w ith the exception of Mr. Borrero. Based on the rotation system, the appointment will be made by Commissioner Alperin (Seat #2) for one (1) regular member to serve an unexpired term endin g August 31, 2013. RECOMMENDATION Recommend appointment of one (1) regular member to serve on the Site Plan Review and Appearance Board for an unexpired term ending August 31, 2013. SITE PLAN REVIEW AND APPEARANCE BOARD 12/11 TERM EXPIRES REGULAR MEMBERS OCCUPATION 08/31/2012 Unexp Appt 10/03/06 Reappt 08/19/08 Reappt 08/17/10 Shane Ames, Chair Designer/Architect 08/31/2012 Unexp Appt 08/16/11 Shannon Dawson Business Owner- Property Management/Realt or 08/31/2013 Unexp Appt Vacant Citizen-at-Large 08/31/2012 Appt 08/17/10 Rustem Kupi Architect 08/31/2013 Appt 08/19/09 Reappt 08/16/11 Scott Porten General Contractor 08/31/2012 Appt 09/07/10 Roger DeCapito Landscape & Design 08/31/2012 Appt 09/07/10 Nick Sadowsky Portfolio Manager- Financial Planning Citizen-at-Large Contact: Rebecca Truxell, X-7040 S/City Clerk/Board 11/SPRAB SITE PLAN REVIEW AND APPEARANCE BOARD APPLICANTS EXHIBIT A Applicants with experience in the professions required: Alejandro Borrero Architect-Project Director Jason Bregman Self-employed consultant-Landscape Architecture Mark Gregory Sign Specialist-Sales/Consultant Jerome Sanzone Building Official/General Contractor Chris Stray Landscape Architecture & Design/Interior Design Applicants for At Large Seat: David Beale Business Owner-Attorney Mary-Elizabeth Cohn Educator/Consultant (also applying for the Educatio n Board) Alice Finst Master Gardener/Retired-Educator Frank Frione Consultant-CEO Ronald Furst Retail-Business Owner David Haycock Liability Claims Adjuster (currently serving on the Public Employees Relations Commission) Robert Marks Construction Inspector MEMORANDUM TO:Mayor and City Commissioners FROM:David T. Harden, City Manager DATE:December 9, 2011 SUBJECT:AGENDA ITEM 10.A. - REGULAR COMMISSION MEETING OF JANUARY 3, 2012 ORDINANCE NO. 44 -11 ITEM BEFORE COMMISSION This ordinance is before Commission for second read ing to 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 fro m a two (2) year term to a three (3) year term; providi ng for a referendum election to be held on March 13 , 2012. BACKGROUND At the first reading on December 6, 2011, the Commi ssion passed Ordinance No. 44-11. 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 ________________________, 2012. _____________________________ M A Y O R ATTEST: ____________________________ City Clerk First Reading ______________ Second Reading _____________ MEMORANDUM TO:Mayor and City Commissioners FROM:R. Brian Shutt, City Attorney DATE:November 29, 2011 SUBJECT:AGENDA ITEM 12.A. - REGULAR COMMISSION MEETI NG OF DECEMBER 6, 2011 ORDINANCE NO. 44 -11 ITEM BEFORE COMMISSION Adoption of Ordinance 44-11 regarding a proposed charter amendment related to Commission terms. BACKGROUND Pursuant to the direction given by Commission, at its 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 providing that no Commissioner/Mayor who votes on this ordinance shall be allowed to exceed 3 consecutive terms, which includes consecutive t erms already served as of the date of the adoption of this Ordinance. This charter amendment would be placed on the b allot for the March 2012 election and, if passed, would be effective starting with the March 2013 election cycle. RECOMMENDATION Commission discretion. Page 1of 1 Coversheet 12/9/2011 htt p ://itweba pp /A g endaIntranet/Bluesheet.as p x?ItemID=5163&Meetin g ID=363 MEMORANDUM TO:Mayor and City Commissioners FROM:David T. Harden, City Manager DATE:December 14, 2011 SUBJECT:AGENDA ITEM 10.B. - REGULAR COMMISSION MEETING OF JANUARY 3, 2012 ORDINANCE NO. 50 -11 ITEM BEFORE COMMISSION This ordinance is before Commission for second read ing and public hearing to consider an amendment to Chapter 34, “Elections”, by amending Section 34.16, “Filing of Nominating Petitions”, to modify the number of registered voters required to sign a peti tion to grant eligibility of a candidate to qualify to run for office. BACKGROUND At the first reading on December 13, 2011, the Comm ission passed Ordinance No. 50-11. RECOMMENDATION Recommend approval of Ordinance No. 50-11 on second and final reading. ORDINANCE NO. 50-11 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AMENDING CHAPTER 34, “ELECTIONS”, OF THE CODE OF ORDINANCES BY AMENDING SECTION 34.16, “FILING OF NOMINATING PETITIONS”, TO MODIFY THE NUMBER OF REGISTERED VOTERS REQUIRED TO SIGN A PETITION TO GRANT ELIGIBILITY OF A CANDIDATE TO QUALIFY TO RUN FOR OFFICE, PROVIDING A SAVING CLAUSE , A GENERAL REPEALER CLAUSE, AND AN EFFECTIVE DATE. WHEREAS, the City of Delray Beach desires to modify the numb er of registered voters required to sign a petition to grant eligibility of a candidate to qualify to run for office . NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AS FOLLOWS: Section 1 . That Chapter 34, “Elections”, of the Code of Ordinances of the Ci ty of Delray Beach is amended by amending Section 34.16, “Filing of Nominating Petition”, to read as follow s: Sec. 34.16. FILING OF NOMINATING PETITION (A) To qualify as a candidate for election, the candidate must file the documents set forth in subsections (A)(1) and (A)(2). The documents shall be filed with the City Clerk no earlier than noon on the last Tuesday in January nor later than noon on the second Tuesday in February of the cal endar year in which the election is to be held, or to qualify as a candidate for Mayor if a special ele ction is called to fill a vacancy in the office of Mayor, the candidate must file with the City Clerk no earlier than noon on t he first Tuesday in April nor later than noon on the third Tuesday in April provided, however, all those who qualified pre viously for Mayor for the previous regular election will be deemed to have qualified as a candidate for the special election without additional petitions being filed or additional monies being paid or to qualify as a candidat e in a special recall election called for the purpose of filling a vacancy pursuant to F.S. Section 100.361, the candidate must file with the City Clerk, no earlier than 8:00 a.m. two (2) days after the circuit court judge, pursuant to F.S . Section 100.361(2), has set the date for the special recall election and no later than 5:00 p.m. on the eighth day after the judge has set the date for the special recall election. The following documents must be filed: (1) A statement in writing under oath stating that the nominee is: (a) Qualified as an elector in the City and has been one since on or before September 1 preceding the election for which he or she is qualifying. (b) A candidate for the office for which he is qualifying. (2) A petition signed by the electors of the City not less in number than one percent of at least 250 of the Registered voters of the City as determined on January 1 of t he year of the election, and payment of fifty dollars ($50.00) to cover the cost of validating the signatures on the petition. (B) (1) The petitions shall be on a form prescribed by the City Clerk, which shall not be released nor 2 ORD. NO. 50-11 distributed by the City Clerk until 8:00 a.m. on the first business day in the month of December preceding the month of qualification, or in the event of a special election to fill a vacancy in the office of Mayor, the petition shall be re- leased and distributed by the City Clerk no earlier than t he second Tuesday in March proceeding the special election, or in the case of a special recall election at 8:00 a.m. on the day after the Circuit Court Judge, pursuant to F.S. Section 100.361(2), has set the date for the special recall elec tion unless that date falls on a weekend or holiday, in which case a petition may be obtained on the next regular business d ay. (2) Signatures may be obtained on the petition between the time the C ity Clerk is authorized to release and distribute the petition and the deadline for qualification. The signa tures to a nominating petition need not all be affixed to one paper, but to each separate paper of a pet ition there shall be attached an affidavit executed by its circulator stating the number of signers of the paper, that ea ch signature on it was affixed in his presence, and that he believes each signature to be the genuine signature of the pers on whose name it purports to be. The signatures shall be executed in ink or indelible pencil. Each petition shall have next to the signature the date of signing, the place of residence, and precinct number. (C) The names of all candidates and the office for which they have filed shall be received by the Supervisor of Elections from the City Clerk by 5:00 p.m. on the first Friday after the close of qualifying, or in the event of a special election to fill a vacancy in the office of Mayor or in the case of a special recall election by 5:00 p.m. on the day following the close of qualifying except that if sai d day falls on a weekend or holiday, the City Clerk shall transmit the names of all candidates and the office for which the y have filed on the next working day. Section 2 . That should any section or provision of this ordinance or any portion t hereof, 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 remainder hereof as a whole or par t thereof other than the part declared to be invalid. Section 3 . That all ordinances or parts of ordinances in conflict herewith b e, and the same are hereby repealed. Section 4 . That this ordinance shall become effective upon its passage on second and final reading. PASSED AND ADOPTED in regular session on second and final readi ng on this the _____ day of ___________________, 2012. ______________________________________ ATTEST: M A Y O R _______________________________ City Clerk First Reading____________________ Second Reading__________________ MEMORANDUM TO:Mayor and City Commissioners FROM:R. Brian Shutt, City Attorney DATE:December 7, 2011 SUBJECT:AGENDA ITEM 12.A. - REGULAR COMMISSION MEETI NG OF DECEMBER 13, 2011 ORDINANCE NO. 50 -11 ITEM BEFORE COMMISSION Adoption of Ordinance 50-11 regarding a proposed change to the number of signatures required to qualify as a candida te for election. BACKGROUND Pursuant to the direction given by Commission, at its November 8, 2011 workshop meeting, the following Ordinance has been prepared, which changes the required number of signatures needed on nominating petition from 1% of the regist ered voters to a set number of 250. RECOMMENDATION Commission discretion. Page 1of 1 Coversheet 12/14/2011 htt p ://itweba pp /A g endaIntranet/Bluesheet.as p x?ItemID=5196&Meetin g ID=339 MEMORANDUM TO:Mayor and City Commissioners FROM:David T. Harden, City Manager DATE:December 14, 2011 SUBJECT:AGENDA ITEM 10.C. - REGULAR COMMISSION MEETING OF JANUARY 3, 2012 ORDINANCE NO. 47 -11 (SECOND READING/SECOND PUBLIC HEARING) ITEM BEFORE COMMISSION This ordinance is before Commission for second read ing and public hearing City-initiated amendment to the Land Development Regulations (LDR) Sections 4.4.6 “Medium Density Residential (RM) District”, 4.4.9 “General Commercial (GC) district”, 4.4.12 Planned Commercial (PC) District, 4.4.13 “Central Business (CBD) District” and Section 4.4.2 8 Central Business District–Railroad Corridor, in order to provide that assisted living facilities wi ll be allowed in the same manner as multiple family residential developments with respect to the number of units and density. BACKGROUND At the first reading on December 13, 2011, the Comm ission passed Ordinance No. 47-11. RECOMMENDATION Recommend approval of Ordinance No. 47-11 on second and final reading. ORDINANCE NO. 47-11 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AMENDING THE LAND DEVELOPMENT REGULATIONS, BY AMENDING SECTION 4.4.6, “MEDIUM DENSITY RESIDENTIAL (RM) DISTRICT, SUBSECTION (D), “CONDITIONAL USES AND STRUCTURES ALLOWED”, SECTION 4.4.9, “GENERAL COMMERCIAL (GC) DISTRICT”, SUBSECTION (B), “PRINCIPAL USES AND STRUCTURES PERMITTED”, SECTION 4.4.9, “GENERAL COMMERCIAL (GC) DISTRICT”, SUBSECTION (G)(3)(4), “MULT I- FAMILY DWELLING UNITS”, SECTION 4.4.12, “PLANNED COMMERCIAL (PC) DISTRICT”, SUBSECTION (G), “SUPPLEMENTAL DISTRICT REGULATIONS”, SECTION 4.4.13, “CENTRAL BUSINESS (CBD) DISTRICT”, SUBSECTION (D), “CONDITIONAL USES AND STRUCTURES ALLOWED”, SECTION 4.4.28, “CENTRAL BUSINESS DISTRICT-RAILROAD CORRIDOR (CBD-RC)”, SUBSECTION (D), “CONDITIONAL USES AND STRUCTURES ALLOWED, TO ADD ASSISTED LIVING FACILITIES TO THE LIST OF ALLOWED USES IN THE SAME MANNER AS MULTIPLE FAMILY RESIDENTIAL USES IN ORDER TO BRING CONSISTENCY BETWEEN THE LAND DEVELOPMENT REGULATIONS AND STATE AND FEDERAL LAWS, PROVIDING A SAVING CLAUSE, A GENERAL REPEALER CLAUSE, AND AN EFFECTIVE DATE. WHEREAS, pursuant to LDR Section 1.1.6, the Planning and Zoning Board reviewed the proposed text amendment at a public hearing held on November 21, 201 1, and voted 6 to 1 to recommend that the changes be approved; and WHEREAS, pursuant to Florida Statute 163.3174(4)(c), the Planning and Zonin g Board, sitting as the Local Planning Agency, has determined that the ch ange is consistent with and furthers the goals, objectives and policies of the Comprehensive Plan; and WHEREAS, the City Commission of the City of Delray Beach a dopts the findings in the Planning and Zoning Staff Report; and WHEREAS, the City Commission of the City of Delray Beach fi nds the ordinance is consistent with the Comprehensive Plan. 2 ORD. NO. 47-11 NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF TH E CITY OF DELRAY BEACH, FLORIDA, AS FOLLOWS: Section 1 . That the recitations set forth above are incorporated herein. Section 2. That Section 4.4.6, "Medium Density Residential (RM) District", subsection (D), “Conditional Uses and Structures Allowed”, of the Land Development Regulations of the Code of Ordinances of the City of Delray Bea ch, Florida, be and the same is hereby amended to read as follows: Section 4.4.6. Medium Density Residential (RM) District: (D) Conditional Uses and Structures Allowed : The following uses are allowed as conditional uses within the RM District . (1) Child care and adult day care. (2) Private educational facilities subject to the restric tions set forth in Section 4.3.3(HHH). (3) Churches, or places of worship, and their attendant educational , nursery, Sunday school, recreational, and columbarium facilities. The foregoing doe s not allow establishment of educational and care uses such as elementary school and general day c are; however, such uses may be established by a separate conditional use application for child care or r ezoning to CF, as appropriate. (4) The use of common recreational facilities such as swimm ing pools, tennis courts, and golf courses (associated with a subdivision) for club or commercial purp oses. (5) Single family detached residences in zero lot developments. (6) Yacht club with facilities. (7) Dock master facilities when associated with a multi-family development which has a marina. (8) Private beach clubs with attendant recreational, dining, and related accessory facilities within one of the following areas: (a) the area l ying south of Atlantic Dunes Park and east of State Road A1A, or (b) south of Casurina Road, north of Bucida road, and east of State Road A 1A. (9) Multiple family residential development, including resid ential licensed service provider facilities and assisted living facilities, may exceed twelve (12) units per acre, up to a maximum 3 ORD. NO. 47-11 of twenty-four (24) units per acre within the Southwest Neighborhood O verlay District defined in Section 4.5.9, subject to the provisions of Section 4.4.6(I), Article 4.7, and based up on the development’s conformance with the applicable standards and criteria describe d within the adopted Southwest Area Neighborhood Redevelopment Plan. (10) Multiple family residential development, including resid ential licensed service provider facilities and assisted living facilities, may exceed twelve (12) units per acre, up to a maximum of twenty-four (24) units per acre within the Carver Estates Overlay District as defined in Section 4.5.11 and up to a maximum of eighteen (18) units per acre within the Infi ll Workforce Housing Area, subject to the provisions of Section 4.4.6(l), and Article 4.7. Section 3 . That Section 4.4.9, "General Commercial (GC) District", subse ction (B), “Principal Uses and Structures Permitted”, of the Land Development Regulat ions of the Code of Ordinances of the City of Delray Beach, Florida, be and the same is hereby amended to read as f ollows: Section 4.4.9 General Commercial (GC) District: (B) Principal Uses and Structures Permitted : The following are allowed within the GC District as permitted uses, except as modified in the Four Cor ners Overlay District by Section 4.4.9(G)(3)(a). (1) General retail uses and/or facilities, including, but not limited to: (a) Antiques, arts and crafts, automotive parts, baked goods, books, carpet and floor covering, cheeses, beer, wine, liquor, confectioneries, cosmetics, me ats, draperies and slipcovers, pharmacies, electrical fixtures and supplies, fa brics, fish, flowers and plants, fruits and vegetables, food, garden supplies, gifts, glassware, har dware and paints, home furnishings, ice cream, lawn care equipment, leather goods, luggage , medical and surgical equipment, music and musical instruments, nautical supplie s, office furniture equipment and supplies, pets and pet supplies, photographic equipm ent and supplies, sewing supplies, sporting goods, toys, wearing apparel and acces sories, appliances, bicycles, business machines, jewelry. (2) Business, Professional, and Medical uses including, but not limited to: 4 ORD. NO. 47-11 (a) Interior decorating, medical and dental clinics, medical and dental laboratories, photographic studios, printing and publishing, business offices, profes sional offices, and medical offices. (3) Contractor's Offices, including but not limited to: (a) Air conditioning, general contractor, electrical, painting, and plumb ing; however, any outside storage of materials is prohibited. (4) Services and Facilities including, but not limited to: (a) Auctions, barber and beauty shops and salons, caterers, dry cleaning limi ted to on-site processing for customer pickup only, dry cleaning and laundry picku p stations, financing e.g. banks and similar institutions including drive-through facilities, laundromats limited to self-service facilities, pet grooming, restaurants including dr ive-in and drive-through, tailoring, tobacconist, vocational schools limited to arts and craf ts, business, beauty, dancing, driving, gymnastics, photography, modeling, and karate-judo, small item repair, and rental of sporting goods and equipment (such as but not limited to bicycles, skates, boogie boards). With the exception of bicycles with an electric -helper motor as defined in Section 72.02, Delray Beach Code of Ordinances, all rented sporting goods must be non-motorized. (b) Abused spouse residence with forty (40) or fewer residents, gall eries, broadcast studios, butcher shops, cocktail lounges, exercise facilities e.g. gy ms and clubs, indoor shooting ranges, museums, libraries, newsstands, commercial or public p arking lots and parking garages, theaters excluding drive-ins. (5) Dwelling units, and residential licensed service provider fa cilities and assisted living facilities, in the same structure as commercial uses provided that: commer cial uses must be provided on the ground floor; commercial uses on the ground floor must occupy no less than 25% of the total structure excluding square footage devoted to vehicular use; re sidential uses are not located on the ground level; residential uses and non-residential uses are physica lly separated and have separate accessways; and the residential density does not exceed 12 units p er acre, except the Four Corners District which may have a free standing residential building as part of a multi-building unified master plan or the residential component may be a part of a single mixed use buil ding. The density of the Four Corners 5 ORD. NO. 47-11 Master Plan shall not exceed 30 dwelling units per acre and is subject to the provisions under Section 4.4.9 (G)(3)(d)(4). Section 4 . That Section 4.4.9, "General Commercial (GC) District", subse ction (D), “Conditional Uses and Structures Allowed”, of the Land Development R egulations of the Code of Ordinances of the City of Delray Beach, Florida, be and the same is hereby amended to read as follows: (D) Conditional Uses and Structures Allowed: The following are allowed as conditional uses within the GC District, except as modified in the North Fe deral Highway Overlay District by Section 4.4.9(G)(2) and except as modified in the Four Corners Overlay District by S ection 4.4.9(G)(3)(c). (1) Amusement game facilities. (2) Wash establishments or facilities for vehicles. (3) Child Care and Adult Day Care. (4) Clubs and Lodges; social, fraternal, and recreational not e xceeding 3,500 sq. ft. of gross floor area. (5) Drive-in Theaters. (6) Flea Markets, bazaars, merchandise marts, and similar retail us es. (7) Funeral Homes. (8) Gasoline Stations or the dispensing of gasoline directly into vehicles. (9) Hotels and Motels. (10) Free-standing multiple-family housing, including residential licensed service provider facilities, subject to the requirements of the RM Dist rict except for setback and height requirements which shall be pursuant to this Section. (11) Recreational establishments such as bowling alleys, gym nasiums, health spas, miniature golf courses, skating rinks. (12) Sales and service of All Terrain Vehicles and personal w atercraft (waverunners, jet skis), with no outside display, outside storage or outside service. (13) Vehicle care limited to the changing of oil and filters , and lubrication with no mechanical work or outside storage of vehicles except as a part of a gasoli ne station. (14) Veterinary Clinics. 6 ORD. NO. 47-11 (15) (Group Home, Type 2 and Community Residential Homes, pursuant to restrictions set forth in Section 4.3.3(I). (16) Adult Gaming Centers. (17) Churches or places of worship, and their attendant Sunday school, r ecreational and columbarium facilities not exceeding 3,500 square feet of gross floor area. The foregoing does not allow establishment of educational and care uses such as elementary school and gene ral day care. (18) Multiple family residential development, including reside ntial licensed service provider facilities and assisted living facilities, may exceed twelve (12) units per acre, up to a maximum of eighteen (18) units per acre within the Infill Workforce Housi ng Area, subject to the provisions of Section 4.4.6(l), and Article 4.7, and subject to the requirements of the R M District except for setback and height requirements, which shall be pursuant to this Section . (19) Assisted Living Facilities, Nursing Homes, and Continuing Care Facilities subject to the requirements of the RM District except for setback and height requirements which shall be pursuant to this Section. (20) Large Family Child Care Home, subject to Section 4.3.3(TT). Section 5 . That Section 4.4.9, “General Commercial (GC) District”, subsec tion 4.4.9(G)(3), “Four Corners Overlay District”, paragraph 4, “Multi-Family D welling Units”, of the Land Development Regulations of the Code of Ordinances of the City of Delray Beac h, Florida, be and the same is hereby amended to read as follows: Section 4.4.9(G)(3) (3) Four Corners Overlay District : The following supplemental district regulations apply to the Four Corners Overlay District, as defined in Section 4.5.14. (a) The permitted uses shall be those uses listed in Sections 4.4.9(B)(1,2,4,5). (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). (d) Standards Pertaining to Allocation of Uses: 1. Office uses can encompass up to one hundred percent (100%) of the t otal building square footage within a Four Corners Overlay master deve lopment plan. 7 ORD. NO. 47-11 2. Retail uses shall not encompass more than one hundred percent (100%) of the total building area square footage of the Four Corners Overla y master development plan. 3. Hotels, motels, and residential all suite lodging shall not encompa ss more than 20% of the total building area square footage of the Four Corners Overlay master development plan. Notwithstanding the above, hotels , motels and residential all suite lodging can comprise 100% of the f loor area of an individual building within a MDP containing multiple buildings. 4. Multi-family Dwelling Units: Multi-family uses and assisted living facilities , but excluding duplexes subject to (a)(b)(c)(d)(e) below, ran ging in density not to exceed 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 development 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 Artic le 4.7.6, 4.7.7, 4.7.8, 4.7.9, and 4.7.10. d. For mixed-use developments, the shared parking provisions of LDR Section 4.6.9. (C)(8) shall be allowed. e. All residential developments shall be subject to the Perfor mance Standards of 4.4.13(l)(2) Section 6 . That Section 4.4.12, “Planned Commercial (PC) District”, subsecti on (G), “Supplemental District Regulations”, of the Land Development Re gulations of the Code of Ordinances of the City of Delray Beach, Florida, be and the same is hereby amended to re ad as follows: Section 4.4.12 Planned Commercial (PC) District (G) Supplemental District Regulations : In addition to the supplemental district regulations set forth in Article 4.6, the following shall apply. (1) Development within the Lindell/Federal Redevelopment Area O verlay District (Redevelopment Area #6) shall be consistent with the provisions cont ained within the adopted 8 ORD. NO. 47-11 Redevelopment Plan for the area, as particularly described unde r the chapter entitled “Section 4: Plan for Future Development.” (2) Within the portion of the Redevelopment Area that is bounded by Dixie Highway on the west, the C-15 canal on the south, Federal Highway on the east, a nd Avenue K (extended) on the north, multiple family residential development and assisted livi ng facilities with densities of up to 16 units per acre is are allowed as a conditional use, subject to the provisions of LDR Sect ion 4.4.6 RM (Medium Density Residential) Zoning District, subsection (I), Performance Standards, and based upon the development’s conformance with the applicable standards and criter ia described within the adopted Redevelopment Plan. (3) Dwelling units are permitted within the same structure as commercial uses with no restriction on the percentage of each use allowed. In the event th at residential and nonresidential uses are located in the same structure, residential uses and nonresidential uses must be physically separated and have separate accessways. (4) All development within the Four Corners Overlay District shall also comply with the provisions of Section 4.4.9(G)(3)(d) and (e). (5) Within the Silver Terrace Courtyards Overlay District, as defined by Section 4.5.17, multi-family residential, assisted living facilities and mixed-use development with residential densities up to 22 units per acre is are allowed as a conditional use, subject to the provisions of LDR Section 4.4.6 RM (Medium Density Residential) Zoning District, sub section (I), Performance Standards, provided at least 20 % of the units are workforce units which comp ly with the provisions of Article 4.7, “Family/Workforce Housing”. The maximum nonresidential Floor Area Ratio (FAR) within the overlay district is 0.75. Section 7 . That Section 4.4.13, “Central Business (CBD) District”, subsect ion (D), “Conditional Uses and Structures Allowed”, of the Land Development R egulations of the Code of Ordinances of the City of Delray Beach, Florida, be and the same is hereby amended to read as follows: Section 4.4.13 Central Business (CBD) District: (D) Conditional Uses and Structures Allowed : The following uses are allowed as conditional uses within the CBD District: (1) Amusement game facilities limited to such uses as pinba ll, air hockey, electronic games, and other similar coin operated games when an attendant is on duty. (2) Child care and adult day care. (3) Financial institutions, e.g., banks and similar institutions i ncluding drive through facilities pursuant to restrictions set forth in Section 4.4.13(H)(1). 9 ORD. NO. 47-11 (4) Funeral homes including accessory uses, such as, a chapel, crematory, and the like. (5) Gasoline stations or the dispensing of gasoline directly int o vehicles, except that such use shall not be allowed in the West Atlantic Neighborhood, t he Beach District, nor on lots which front along Atlantic Avenue or N.E. 2nd Avenue (a/k/a Pineapple Grove Way ), beginning at a point 105’ south of N.E. 4th Street. (6) Recreational establishments such as bowling alleys, g ymnasiums, health spas, miniature golf courses, skating rinks. (7) Veterinary clinics. (8) Movie theaters, excluding drive-ins. (9) Playhouses, dinner theaters, and places of assembly for c ommercial entertainment purposes (e.g., concerts, live performances). (10) Flea markets, bazaars, merchandise marts, and similar retail uses. (11) Wash establishment, with automatic/mechanical systems only, for vehicles, except that such use shall not be located east of the Intracoastal W aterway or on lots which front along Atlantic Avenue. Further, this use must be established on property with a minimum lot ar ea of 20,000 sq.ft. (12) Multi-family dwelling units, including residential licens ed service provider facilities and assisted living facilities, but excluding duplexes, at a density greater than thirty (30) uni ts per acre, on property located south of N.E. 2nd Street and north of S.E. 2nd Street, subject to the standards and limitations of Section 4.4.13(I ). (13) Group Home, Type 2 and Community Residential Homes, pursua nt to restrictions set forth in Section 4.3.3(I). (14) Restaurants, Cocktail Lounges, Hotels, and Residential Type Inns may provide their required parking as valet parking, subject to the provisions of Sect ion 4.6.9(F)(3 (15) Drive-in or drive-through restaurants on property located wi thin the West Atlantic Neighborhood. (16) Hotels, motels, and residential-type inns on property loc ated within the West Atlantic Neighborhood. (17) Free standing or mixed-use residential development, incl uding residential licensed service provider facilities and assisted living facilities at a density greater than twelve (12) units per acre, but not exceeding 30 units per acre, on property located within the West Atlantic Neighborhood, subject to the standards and limitations of Section 4.4.13(I). (18) Bed and Breakfast Inns within the West Atlantic Neighbor hood, subject to the provisions of LDR Section 4.3.3(Y) (19) Live/Work Unit, subject to Section 4.3.3 (KKK). 10 ORD. NO. 47-11 (20) Large Family Child Care Home subject to Section 4.3.3(TT). (21) Segway Tours and Segway Sales pursuant to restrictions set forth in Section 4.3.3(ZZZZ). Section 8 . That Section 4.4.28, “Central Business District-Railroad Corridor (C BD-RC)”, subsection (D), “Conditional Uses and Structures Allowed”, of the L and Development Regulations of the Code of Ordinances of the City of Delray Beach, Florida, be and t he same is hereby amended to read as follows: Section 4.4.28 Central Business District-Railroad Corridor (CBD-RC) (D) Conditional Uses and Structures Allowed: The following uses are allowed as conditional uses within the CBD-RC zoning district: (1) All uses allowed as such within the CBD [Section 4.4.13(D) ]. (2) Automobile repair and automobile detailing. However, s uch facilities may not be located north of S.E. 1st Street or south of S.E. 6th Street, extended. Cond itional use approval may not be granted for a new automobile repair facility, nor for the ex pansion of an existing facility, unless it is specifically demonstrated that off-street parking is availa ble in accordance with the requirements of Section 4.6.9. (3) Food preparation and/or processing, including but not limited t o bakeries and catering operations. (4) Dry cleaning processing plants. (5) Multi-family dwelling units, and assisted living facilities, but excluding duplexes, at a density greater than thirty (30) units per acre, in the a rea located west of the FEC Railroad, north of N.E. 2nd Street and south of N.E. 3rd Street, subject to the standards and limitations of LDR Section 4.4.13 (I). In addition, development must be consistent with the Design G uidelines contained within the Pineapple Grove Main Street Neighborhood Plan. The Pineapple Grove Design Review Committee shall review the project for consistency with the Performance Standar ds and compliance with the Pineapple Grove Neighborhood Plan prior to consideration of the Conditional Use by the Planning and Zoning Board. Section 9. That should any section or provision of this ordinance or any portion t hereof, 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 remainder hereof as a whol e or part thereof other than the part declared to be invalid. 11 ORD. NO. 47-11 Section 10 . That all ordinances or parts of ordinances in conflict herewith be , and the same are hereby repealed. Section 11 . That this ordinance shall become effective immediately upon it s passage on second and final reading. PASSED AND ADOPTED in regular session on second and final rea ding on this the _____ day of ___________________, 2012. ____________________________________ ATTEST M A Y O R _______________________________ City Clerk First Reading__________________ Second Reading________________ MEMORANDUM TO:Mayor and City Commissioners FROM:Jasmin Allen, Planner Paul Dorling, AICP, Director Planning and Zoning THROUGH:City Manager DATE:December 6, 2011 SUBJECT:AGENDA ITEM 10.A. - REGULAR COMMISSION MEETI NG OF DECEMBER 13, 2011 ORDINANCE NO. 47 -11 (FIRST READING/FIRST PUBLIC HEARING) ITEM BEFORE COMMISSION Consideration of a city-initiated amendment to the Land Development Regulations (LDRs) to add assisted living facilities to the list of allowed uses in the same manner as multiple family residential uses in order to bring consistency between the Land Deve lopment Regulations and State and Federal Laws. BACKGROUND Recently amendments to the Land Development Regulations have been adopted on April 15, 2008 (Ordinance 20-08) and on January 19, 2010 (Ordinance 01-10) to allow assisted living facilities to be accommodated similarly (with respect to the number of residents and units) to either single fami ly, duplex, or multi-family uses in the zoning districts in which those uses were allowed. Subsequently it was discovered that assisted living facilities were not accommodated in the same manner as other multi- family residential uses under two certain situatio ns where special regulations allowed increased densities and in certain overlay districts where residential uses are permitted. Under the propos ed ordinance, additional provisions are made to allow assisted living facilities where increased densities are permitted through the conditional use provisions and within certain overlay districts which al lows residential uses. 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 Polici es of the Comprehensive Plan. The proposed amendment will further Objective B-2 of the Housing Element. A positive finding can be made that the amendment is cons istent with and furthers the Goals, Objectives, and Policies of the Comprehensive Plan. REVIEW BY OTHERS The Planning and Zoning Board recommended approval on a 6 to 1 vot e (Gerry Franciosa dissenting) at its November 21, 2011 meeting. Page 1of 2 Coversheet 12/14/2011 htt p ://a g endas.m y delra y beach.com/Bluesheet.as p x?ItemID=5193&Meetin g ID=339 RECOMMENDATION By motion, approve Ordinance No. 47-11 on first reading for a City-initiated amendment to the Land Development Regulations, by adopting the findings of fact and law contained in the staff report and finding that the amendment is consistent with the Comprehensive Plan and meets criteria se t forth in Section 2.4.5(M) of the Land Development Regulations. Attachments: - Proposed Ordinance No. 47-11 - Planning and Zoning Staff Re port of November 21, 2011 Page 2of 2 Coversheet 12/14/2011 htt p ://a g endas.m y delra y beach.com/Bluesheet.as p x?ItemID=5193&Meetin g ID=339 PLANNING AND ZONING BOARD STAFF REPORT MEETING DATE: NOVEMBER 21, 2011 AGENDA NO: IV.B AGENDA ITEM: CONSIDERATION OF A CITY-INITIA TED AMENDMENT TO LAND DEVELOPMENT REGULATIONS SECTIONS 4.4.6 “MEDIUM DENS ITY RESIDENTIAL (RM) DISTRICT”, 4.4.9 “GENERAL COMMERCIAL (GC) DISTRICT”, 4.4.12 PLANNED COMMERCIAL (PC) DISTRICT, 4.4.13 “CENTRAL BUSINESS (CBD) DISTRICT” AND SECTION 4.4.28 “CENTRAL BUSINESS DISTRICT–RAILROAD CORRIDOR (CBD-RC ) DISTRICT”, IN ORDER TO PROVIDE THAT ASSISTED LIVING FACILITIES WILL BE ALLOWED IN THE SAME MANNER AS MULTIPLE FAMILY RESIDENTIAL DEVELOPMENTS WITH RESPE CT TO THE NUMBER OF UNITS AND DENSITY ITEM BEFORE THE BOARD The item before the Board is to make a recommendation to the City Commission regarding a City-initiated amendment to the Land Development Re gulations pertaining to Assisted Living Facilities. Pursuant to Section 1.1.6, an amendment to the text o f the Land Development Regulations may not be made until a recommendation is obtained from t he Planning and Zoning Board. BACKGROUND / ANALYSIS On April 15, 2008, the City Commission adopted Ordina nce 20-08, pertaining to Assisted Living Facilities and Continuing Care Facilities to comport wit h State Statues and achieve compliance with the Federal Fair Housing Law. The Ordinance adde d Assisted Living Facilities and Continuing Care Facilities to certain zoning districts i n the same manner in which multiple-family residential uses were allowed within those districts. In order to achieve compliance with State Laws, a subsequ ent LDR text amendment was adopted by the City Commission on January 19, 2010 (Or dinance 01-10). This amendment allowed assisted living facilities to be accommodated simila rly (with respect to the number of residents and units) to either single family, duplex, o r multi-family uses in the zoning districts in which those uses were allowed. Recently, a public inquiry was received pertaining to t he establishment of an assisted living facility at the 5th Avenue at Delray property, locate d on the east side of NE 5 th Avenue, between NE 1 st Street and NE 2 nd Street. This property is located within the CBD and w as developed at a density in excess of 30 units per acre with a conditional use approval. Assisted living facilities are allowed as a permitted use in the CBD (up to a ma ximum density of 30 units per acre) however, they were not listed as conditional uses with densities in excess of 30 units per acre. Planning and Zoning Board Staff Report, November 21 , 2011 Amendment to LDRs Regarding Assisted Living Facilit ies Page 2 It was subsequently discovered that assisted living facilit ies were not accommodated in the same manner as other multi-family residential uses under two certain situations where special regulations allowed increased densities and in certain ov erlay districts where residential uses are permitted. Under the proposed ordinance, addition al provisions are made to allow assisted living facilities where increased densities are permitted through the conditional use provisions and within certain overlay districts which allows residen tial uses. Pursuant to LDR Appendix “A” Assisted Living Facilitie s” are defined as: “Any building or buildings, section of building, or distinct part of a building, private home, boarding home, home for the aged, or other residenti al facility, whether operated for profit or not, which undertakes through its ownership or managem ent to provide housing, meals, and one or more personal services for a period exceeding 24 hours to one or more adults who are not relatives of the owner or administration. “Person al services” means direct physical assistance with or supervision of the activities of daily li ving and the self-administration of medication and other similar services which the Departmen t of Elderly Affairs may define by rule. “Personal services” shall not be construed to mean the provision of medical, nursing, dental, or mental health services. Assisted Living Faci lities shall be accommodated in the same manner with respect to the number of residents and the number of units as required for the respective structures of either a single family unit , duplex unit or multi-family unit in the zoning districts where allowed. Requests for exemptio ns to the number of residents can be requested through a reasonable accommodation request pur suant to LDR Section 2.4.7(G)” LDR SECTIONS AFFECTED BY THIS ORDINANCE: The following overlay districts, Infill Workforce Housing Areas and Redevelopment Areas allow for multiple family developments under certain criter ia and do not allow assisted living facilities under similar circumstances. This ordinance adds assisted livin g facilities to these districts and areas to maintain consistency. Section 4.4.6 “Medium Density Residential (RM) District: Within the RM district multiple family residential de velopments may exceed 12 units per acre, up to a maximum of 24 units per acre within the Southwest Neighborhood Overlay district and the Carver Estates Overlay district subject t o approval of a conditional use and the provisions of Section 4.4.6(I), Article 4.7 and con formance with the criteria setforth in their respective re-development plan. Section 4.4.9 “General Commercial (GC) District”: Within the GC district multiple family residential de velopments may exceed 12 units per acre, up to a maximum of 18 units per acre within the Infill Workforce Housing Area subject to approval of a conditional use and the provisions of Section 4.4.6(I), Article 4.7 and conformance with the requirements of the RM district exce pt for setback and height requirements (which shall be per the GC district standar ds). Section 4.4.12 “Planned Commercial (PC) District”: Within the PC district multiple family residential de velopments may exceed 12 units per acre, up to a maximum of 18 units per acre within the Infi ll Workforce Housing Area subject to approval of a conditional use and the provisions of Sect ion 4.4.6(I), Article 4.7 and Planning and Zoning Board Staff Report, November 21 , 2011 Amendment to LDRs Regarding Assisted Living Facilit ies Page 3 conformance with the requirements of the RM district exce pt for setback and height requirements (which shall be per the PC district standar ds). Additionally, varying density increases are allowed for multiple family developments within several overlay areas which would also be applicable to assisted living facilities. (i) Within the portion of the Redevelopment Area t hat is bounded by Dixie Highway on the west, the C-15 canal on the south, Federal High way on the east, and Avenue K (extended) on the north, multiple family residential development with densities of up to 16 units per acre is allowed as a conditional use, subject to the provisions of LDR Section 4.4.6 RM (Medium Density Residential) Zoning District, subsect ion (I), Performance Standards, and based upon the development’s conformance with the a pplicable standards and criteria described within the adopted Redevelopment Plan. (ii) Within the Silver Terrace Courtyards Overlay Dist rict, as defined by Section 4.5.17, multi-family residential and mixed-use develo pment with residential densities up to 22 units per acre is allowed as a conditional use, subjec t to the provisions of LDR Section 4.4.6 RM (Medium Density Residential) Zoning District, subsection (I), Performance Standards, provided at least 20 % of the units are w orkforce units which comply with the provisions of Article 4.7, “Family/Workforce Housing”. Th e maximum nonresidential Floor Area Ratio (FAR) within the overlay district is 0.75. (iii) Within the “Four Corners Overlay District” of t he PC district, multiple-family uses are allowed not to exceed a density of 30 units per acre subject to the following: a. Residential units may comprise 75% of the total floo r 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 development containing office and/or commerci al uses. b. Residential developments must include a minimum of 2 0% 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 pro visions of LDR Section 4.6.9. (C)(8) shall be allowed. e. All residential developments shall be subject to th e Performance Standards of 4.4.13(l)(2) Section 4.4.13 “Central Business District (CBD) District”: Within the CBD district, multi-family dwelling units (excluding duplexes) are allowed as a conditional use at a density greater than thirty (30) units per acre, on property located south of N.E. 2nd Street and north of S.E. 2nd Street, sub ject to the standards and limitations of Section 4.4.13(I ). In addition, development within the Pineapple Gr ove Main Street Area must be consistent with the Design Guidelines contained wi thin the Pineapple Grove Main Street Neighborhood Plan. The Pineapple Grove Desi gn Review Committee shall review the project for consistency with the Performance Standa rds and compliance with the Pineapple Grove Neighborhood Plan prior to considera tion of the Conditional Use by the Planning and Zoning Board. Additionally, for that area located with the West A tlantic Redevelopment Area, free standing or mixed-use residential developments are allowed as a conditional use at a density greater than twelve (12) units per acre, but not exceeding 30 units per acre, on property located Planning and Zoning Board Staff Report, November 21 , 2011 Amendment to LDRs Regarding Assisted Living Facilit ies Page 4 within the West Atlantic Neighborhood, subject to the standards and limitations of Section 4.4.13(I ). Section 4.4.24 “Central Business District-Railroad Corrid or (CBD-RC) District: Within the CBD-RC district, multi-family dwelling un its (excluding duplexes) are allowed as a conditional use at a density greater than thirty (30) units per acre, on property located south of N.E. 2nd Street and north of S.E. 2nd Street, sub ject to the standards and limitations of Section 4.4.13(I ). In addition, development within the Pineapple Gr ove Main Street Area must be consistent with the Design Guidelines contained wi thin the Pineapple Grove Main Street Neighborhood Plan. The Pineapple Grove Desi gn Review Committee shall review the project for consistency with the Performance Standa rds and compliance with the Pineapple Grove Neighborhood Plan prior to considera tion of the Conditional Use by the Planning and Zoning Board. As stated above, assisted living facilities are to be accommo dated in the same manner as multiple family residential uses. REQUIRED FINDINGS LDR Section 2.4.5(M)(5) (Findings): Pursuant to LDR Section 2.4.5(M)(5) (Findings), i n addition to LDR Section 1.1.6(A), the City Commissi on must make a finding that the text amendment is consistent with and furthers the Goals , Objectives and Policies of the Comprehensive Plan. Comprehensive Plan Policies: The goals, objectives and policies of the Comprehensive Plan were reviewed and the following applicable objective was noted: Housing Element Objective B-2 states , “Redevelopment and the development of new land shall result in the provision of a variety of housing ty pes and other amenities (i.e. bike trails, parks, sidewalks) to accommodate the diverse economic make up of the City’s demographic profile, and meet the housing needs of all residents. P olicies which will implement this objective include:” The proposed amendment will further this policy. A posi tive finding can be made that the amendment is consistent with and furthers the Goals, Obje ctives, and Policies of the Comprehensive. REVIEW BY OTHERS The Pineapple Grove Main Street committee reviewed the amendment at their November 2, 2011 meeting and recommended approval. The Downtown Development Authority (DDA) reviewed the amendment at their November 15, 2011 meeting and recommended approval. The West Atlantic Redevelopment Coalition (WARC) reviewed the amendment at their November 15, 2011 meeting and recommended approval. Planning and Zoning Board Staff Report, November 21 , 2011 Amendment to LDRs Regarding Assisted Living Facilit ies Page 5 The Community Redevelopment Agency (CRA) reviewed the amendment at their November 10, 2011 meeting and recommended approval. Courtesy Notices: Courtesy notices were provided to the following homeo wner and civic associations: Neighborhood Advisory Council Delray Citizen’s Coalition Letters of objection and support, if any, will be prov ided at the Planning and Zoning Board meeting. ASSESSMENT AND CONCLUSION The purpose of this City-initiated LDR text amendment is to bring consistency between the Land Development Regulations and Florida Statues. Positive findings can be made with respect to LDR Section 2.4.5(M)(5). RECOMMENDED ACTION Move a recommendation of approval to the City Commissio n for a city-initiated amendment to Land Development Regulations as reflected in the attach ed Ordinance, by adopting the findings of fact and law contained in the Staff Report and fi nding that the request is consistent with the Comprehensive Plan and meets the criteria set forth in LDR Section 2.4.5(M)(5). Attachment: Proposed Ordinance MEMORANDUM TO:Mayor and City Commissioners FROM:David T. Harden, City Manager DATE:December 14, 2011 SUBJECT:AGENDA ITEM 10.D. - REGULAR COMMISSION MEETING OF JANUARY 3, 2012 ORDINANCE NO. 48 -11 (SECOND READING/SECOND PUBLIC HEARING) ITEM BEFORE COMMISSION This ordinance is before Commission for second read ing and public hearing to Consider a city-initiated amendment to Land Development Regulation (LDR) Sect ion 4.3.3, “Special Requirements for Specific Uses”, by enacting a new Subsection 4.3.3(AAAA), “S imulated Gambling Devices”, in order to prohibit use of same and to enact a new definition of, “Simu lated Gambling Devices”. BACKGROUND At the first reading on December 13, 2011, the Comm ission passed Ordinance No. 48-11. RECOMMENDATION Recommend approval of Ordinance No. 48-11 on second and final reading. ORDINANCE NO. 48 - 11 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AMENDING THE LAND DEVELOPMENT REGULATIONS OF THE CITY OF DELRAY BEACH BY AMENDING SECTION 4.3.3, “SPECIAL REQUIREMENTS FOR SPECIFIC USES”; BY ENACTING A NEW SUBSECTION 4.3.3(AAAA), “SIMULATED GAMBLING DEVICES ”, IN ORDER TO PROHIBIT USE OF SAME AND AMENDING APPENDIX “A” TO ENACT A NEW DEFINITION OF “SIMULATED GAMBLING DEVICES”; PROVIDING A GENERAL REPEALER CLAUSE, A SAVING 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, Article X, Section 7 of the 1968 Florida Constitution prohibits lotteries within Florida, other than the types of pari-mutuel pools authorized by law as of the effective date of the 1968 Florida Constitution; and WHEREAS, Article X, Section 23, of the Florida Con stitution, as adopted in a 2004 Amendment to the Florida Constitution, authorizes s lot machine gaming only in certain eligible licensed facilities in Broward and Miami-Dade Counties, Fl orida, and such authorization is subject to the requirements and conditions set forth in Articl e X, Section 23 of the Florida Constitution and the extensive regulatory requirements of Chapter 551, Flor ida Statutes; and WHEREAS, computer or video displays of spinning re els or other simulations of a game or games ordinarily played on a gambling device or in a casino and which show the results of raffles, sweepstakes, contests or other promotions (hereinaf ter collectively referred to in these recitals as “simulated gambling devices”) were not among the ty pes of pari-mutual pools authorized by law as of the effective date of the 1968 Florida Constitution; and WHEREAS, the technology necessary to facilitate si mulated gambling devices effectively did not even generally exist in 1968; and WHEREAS, under no circumstances does the Florida C onstitution or the Florida Statutes authorize or permit casino gambling or any activity resembling casino gambling in the City of Delray Beach, Florida; and 2 ORD. NO. 48-11 WHEREAS, no vote of the electorate of the City of Delray Beach authorizing casino gambling in the City of Delray Beach has taken place; and WHEREAS, the City Commission of the City Delray Be ach, Florida (the “Commission”), desiring to protect individual rights, while at the same time affording opportunity for the fullest development of the individual and promoting the hea lth, safety, education, and welfare of the people, including the elderly and economically disa dvantaged, and the children of the City of Delray Beach who are our most precious and valuable resour ce, finds that the City of Delray Beach has a compelling interest in protecting its citizens, and in part icular its elderly, economically disadvantaged, and children from certain activities and influences which can result in irreparable harm, including simulated gambling devices; and WHEREAS, the Commission recognizes that while the State of Florida has authorized slot machine gaming at licensed facilities in certain ar eas outside of the City of Delray Beach, it also recognizes that establishments that utilize simulat ed gambling devices can deceive members of the public, including the elderly, the economically dis advantaged, and children, into believing that they are engaging in a lawfully permitted gaming activity; and WHEREAS, the use of simulated gambling devices is therefor e inherently deceptive; and WHEREAS, due to their inherently deceptive nature, establishments that utilize simulated gambling devices are adverse to the quality of life , tone of commerce, and total community environment in the City of Delray Beach, and have a n unreasonable adverse effect upon the elderly, the economically disadvantaged, and other citizens of the C ity of Delray Beach; and WHEREAS, the Commission is also charged with the r esponsibility of protecting and assisting its citizens who suffer from compulsive or probl em gambling behavior; and WHEREAS, there is often a correlation between esta blishments that utilize simulated gambling devices and disturbances of the peace and good order of the community, and the concurrency of these activities is hazardous to the health, safety, and general welfare of the citize ns of the City of Delray Beach; and WHEREAS, in order to ensure the uniform enforcemen t of existing laws, to preserve the public peace and good order, and to safeguard the h ealth, safety, morals and welfare of the community and citizens thereof, it is necessary and advisable to prohibit the use of simulated gambling devices, unless otherwise exempted by law or ordin ance. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISS ION OF THE CITY OF DELRAY BEACH, FLORIDA, AS FOLLOWS: Section 1 . That the recitations set forth above are incorporated he rein. 3 ORD. NO. 48-11 Section 2 . That Section 4.3.3, “Special Requirements for Spe cific Uses”, Subsection (AAAA), “Simulated Gambling Devices”, of the Land D evelopment Regulations of the City of Delray Beach, shall hereby be enacted to read as follows: (AAAA) Simulated Gambling Devices: (1) Purpose : It is the intent of this section to prohibit the use of simulated gambling devices, including any related activity or behavior which can be reasonably construed to be the use of simulated gambling devices. (2) Prohibition of Simulated Gambling Devices : It shall be unlawful for any person to manage, supervise, maintain, provide, produce or us e one or multiple simulated gambling devices. Each individual act to manage, supervise, maintain, provide, produce, or use a simulated gambling device constitutes a separate violation of this section. (3) Exemptions : (a) This section does not prohibit the personal, re creational, non-commercial ownership, play, operation or use of a device which could be construed to be a simulated gambling device, provided such ownership, play, operation or use is not otherwise prohibited by Florida law and provided su ch ownership, play, operation or use does not constitute a lottery under Article X, Section 7 of the Florida Constitution. (b) This section does not prohibit the ownership, p lay, operation, or use of any device expressly permitted by the Florida Statutes and not otherwise prohibited by the Florida Constitution, except that devices permitted by Article X, Section 23 of the Florida Constitution and Chapter 551, Florida Statu tes, in Broward and Miami- Dade County only are not permitted by this section. c. This section does not prohibit Adult Gaming Cent ers, which are regulated by LDR Section 4.3.3(AAA). (4) Conflict with State Law : Nothing in this section is intended to conflict with the provisions of the Florida Constitution or Chapter 849, Flor ida Statutes, concerning gambling. In the event of a conflict between this section and either the Florida Constitution or Chapter 849, Florida Statutes, then the provisions of the Florida Consti tution or Chapter 849, Florida Statutes, as applicable, control. (5) Penalty : Any person who violates this section is subject to the provisions of Section 10.99, “General Penalty”, of the Code of Ordinances of the City of Delray Beach. Each simulated 4 ORD. NO. 48-11 gambling device, possession or use thereof constitu tes an individual offense for purposes of Section 10.99. Section 3 . That Appendix “A”, “Definitions”, of the Land Dev elopment Regulations of the City of Delray Beach, Florida, shall hereby be amended to enact a new definition of “Simulated Gambling Device” to read as follows: SIMULATED GAMBLING DEVICE Means any mechanical or electrical device, computer, terminal, video or other equipment that may or may not be capable of downloading games from a central server system, machine, computer or other e quipment upon connection with or the insertion of, swiping, passing in range, or any other technic al means of physically or electromagnetically connecting to a coin, bill, ticket, token, card, or similar object, including entering a password obtained directly or indirectly through payment of consideration or obtained as a bonus or supplement to another transaction involving the pay ment of consideration, which makes the device available to play (by skill, chance, or both) or op erate a computer or video simulation of any game such as slot machines, bingo, poker, keno, craps, o r any other type of game ordinarily played in a casino, including a game involving the display of t he results of a raffle, sweepstakes, drawing, contest, lottery, or other promotion, and which may deliver or entitle the person or persons playing or operating the device to a payoff of cash, money, or other credit, billets, tickets, tokens, or electronic credits to be exchanged for cash or merc handise, or any other thing of value, whether made automatically from the machine or manually. Section 4 . 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 5 . That all ordinances or parts of ordinances in con flict herewith be and the same are hereby repealed. Section 6 . That this ordinance shall become effective upon i ts passage on second and final reading. 5 ORD. NO. 48-11 PASSED AND ADOPTED in regular session on second an d final reading on this the _____ day of ____________________, 2012. ____________________________________ M A Y O R ATTEST: _____________________________ City Clerk First Reading__________________ Second Reading________________ MEMORANDUM TO:Mayor and City Commissioners FROM:Paul Dorling, AICP, Director Planning and Zoning THROUGH:City Manager DATE:December 7, 2011 SUBJECT:AGENDA ITEM 10.B. - REGULAR COMMISSION MEETING OF DECEMBER 13, 2011 ORDINANCE NO. 48 -11 (FIRST READING/FIRST PUBLIC HEARING) ITEM BEFORE COMMISSION Approval of a city-initiated amendment to the Land Development Regulations (LDRs) that will prohibit simulated gambling devices and their related places of business sometimes referred to as “internet or sweepstake cafes”. BACKGROUND The businesses that utilize simulated gambling de vices are known by several names including Cyber cafes, Sweepstake cafes, or Internet cafes. These businesses can range from storefront loca tions which install fold out tables, add a few decorations and put out laptop computers with internet acc ess to much larger facilities that install ma ny computers, big screen TVs and have sitting and snack areas. These facilities sell internet access or telephone cards which allow customers to enter a sweepstakes system on computers at the business. Customers then enter games where they can win cash prizes. This circumvents the current gambling laws, because the purchase of computer time or phone cards to enter sweepstakes on a gaming web site is technically not pa ying to play a game to win money. After players “buy time”, they can win credits in various online sw eepstakes that can then be transferred back to cash. These businesses have been popping up across the nation, including more recently in Florida, thereby creating concerns that it will increase crime rates, contribute to the financ ial hardships for low income customers, and lower property values. Many commun ities are now considering some type of limitation on this use. These cafes differ from regular internet cafes which charge a fee for computer use and are usually associated with the sale of drinks and snacks, but do not offer or promote sweepstakes as their primary business. They also differ from “adult gaming facilitie s”, which are allowed in certain zoning districts as a conditional use in the following way: Cyber cafes, Sweepstake cafes, or Internet cafes utiliz e web b ased games connected with sweepstake winnings with significantly higher payouts than adul t gaming Page 1of 2 Coversheet 12/14/2011 htt p ://a g endas.m y delra y beach.com/Bluesheet.as p x?ItemID=5195&Meetin g ID=339 facilities, where the maximum retail value of individual prizes is limited to 75 cents per game and no cash awards, gift certificates, gift cards, credit cards or other cash substitutes are allowed. REVIEW BY OTHERS The Planning and Zoning Board reviewed the item at their November 21, 2011 meeting and recommended approval on a 7-0 vote. RECOMMENDATION By motion, approve Ordinance No. 48-11 on first r eading for a city-initiated amendment to Section 4.3.3 and Appendix ‘A’ of the Land Development Regul ations, by adopting the findings of fact and law contained in the staff report and finding that the amendment is consistent with the Comprehensive Plan and meets criteria set forth in Section 2.4.5(M) of the Land Development Regulations. Page 2of 2 Coversheet 12/14/2011 htt p ://a g endas.m y delra y beach.com/Bluesheet.as p x?ItemID=5195&Meetin g ID=339 PLANNING AND ZONING BOARD STAFF REPORT MEETING DATE: NOVEMBER 21, 2011 AGENDA NO: V.C AGENDA ITEM: CONSIDERATION OF A CITY-INITIATED AME NDMENT TO THE LAND DEVELOPMENT REGULATIONS (LDR), BY ENACTING A NEW SUBSECTION 4.3.3 (AAAA) TO PROHIBIT SIMULATED GAMBL ING DEVICES, AND AMENDING APPENDIX “A” TO ENACT A NEW DEFINITION FOR THE SAME. ITEM BEFORE THE BOARD The item before the Board is to make a recommendation to the City Commission regarding a city- initiated amendment to Land Development Regulations (LDRs) that will enact a new subsection to Section 4.3.3, “Special Requirements for Specific Uses”, t o prohibit simulated gambling devices and the related places of business sometimes referred to as “internet or sweepstake cafes”. 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 t he Planning and Zoning Board. BACKGROUND/ANALYSIS The businesses that utilize these simulated gambling devi ces are known by several names including Cyber cafes, Sweepstake cafes, or Internet cafe s. These businesses can range from storefront locations which install fold out tables, add a few decorations and put out laptop computers with internet access to much larger facilities tha t install many computers, big screen TVs and have sitting and snack areas. These facilities sell internet access or telephone cards wh ich allow customers to enter a sweepstakes system on computers at the business. Customers then enter games where they can win cash prizes. This circumvents the current gambling laws , because the purchase of computer time or phone cards to enter sweepstakes on a gaming web site is technically not paying to play a game to win money. After players “buy time”, they can win credits in various online sweepstakes that can then be transferred back to cash. These businesses have been popping up across the nation, i ncluding more recently in Florida, thereby creating concerns that it will increase crime rate s, contribute to the financial hardships for low income customers, and lower property values. Many co mmunities are now considering some type of limitation on this use. These cafes differ from regular internet cafes which charg e a fee for computer use and are usually associated with the sale of drinks and snacks, but do not offer or promote sweepstakes as their primary business. They also differ from “adult gaming f acilities”, which are allowed in certain zoning districts as a conditional use in the following way: Cybe r cafes, Sweepstake cafes, or Internet cafes utilize web based games connected with sweepstake winnin gs with significantly higher payouts than adult gaming facilities, where the maximum retai l value of individual prizes is limited to 75 Planning and Zoning Board Meeting, November 21, 201 1 LDR Amendment-Prohibition of Simulated Gambling Dev ices 2 cents per game and no cash awards, gift certificates, gift cards, credit cards or other cash substitutes are allowed. REQUIRED FINDINGS Comprehensive Plan Conformance LDR Section 2.4.5(M)(5) (Findings) requires that the C ity Commission make a finding that the text amendment is consistent with and furthers the Goals, Obj ectives and Policies of the Comprehensive Plan. While there were no specific section s of the Comprehensive Plan to support the proposed amendment, it is not inconsistent with the Comprehensive Plan. REVIEW BY OTHERS Courtesy Notices Courtesy notices were provided to the following homeo wner and civic associations: Neighborhood Advisory Council Citizens Coalition Chamber of Commerce Progressive Residents of Delray (PROD) Letters of objection and support, if any, will be pro vided at the Planning and Zoning Board meeting. ASSESSMENT AND CONCLUSION The proposed ordinance will prohibit simulated gambli ng devices and the related places of business sometimes referred to as “internet or sweepstake ca fes”. While the amendment does not specifically further the Goals, Objectives, and Policies of the Comprehensive Plan, and is not inconsistent with them. Further a positive finding can b e made with respect to LDR Section 2.4.5(M) (5). ALTERNATIVE ACTIONS A. Continue with direction. B. Move a recommendation of approval to the City Com mission of an amendment to the Land Development Regulations , by enacting a new subsection 4.3.3 (AAAA) to proh ibit Simulated Gambling Devices, and amending “Appendix A” to enact a new definition for the same, by adopting the findings of fact and law contained in the staff report, and finding that the text amendment and approval thereof is consistent with the Comprehensive Plan and meets the criteria set forth in LDR Section 2.4.5(M) C. Move a recommendation of denial to the City Commi ssion of an amendment to the Land Development Regulations , by enacting a new subsection 4.3.3 (AAAA) to proh ibit Simulated Gambling Devices, and amending “Appendix A” to enact a new definition for the same, by adopting the findings of fact and law contained in the staff report, and finding that the text amendment and approval thereof is inconsistent with the Comprehensive Plan and does not meet the criteria set forth in LDR Section 2.4.5(M) (motion to be made in the affirmative). Planning and Zoning Board Meeting, November 21, 201 1 LDR Amendment-Prohibition of Simulated Gambling Dev ices 3 RECOMMENDED ACTION Recommend approval of an amendment to the Land Devel opment Regulations, by enacting a new subsection 4.3.3 (AAAA) to prohibit Simulated G ambling Devices, and amending “Appendix A” to enact a new definition for the same, by adopting the findings of fact and law contained in the staff report, and finding that the t ext amendment and approval thereof is consistent with the Comprehensive Plan and meets the cri teria set forth in LDR Section 2.4.5(M). Attachment: Proposed Ordinance MEMORANDUM TO:Mayor and City Commissioners FROM:David T. Harden, City Manager DATE:December 9, 2011 SUBJECT:AGENDA ITEM 10.F. - REGULAR COMMISSION MEETING OF JANUARY 3, 2012 ORDINANCE NO. 46 -11 ITEM BEFORE COMMISSION This ordinance is before Commission for second read ing to 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”. BACKGROUND At the first reading on December 6, 2011, the Commi ssion passed Ordinance No. 46-11. RECOMMENDATION Recommend approval of Ordinance No. 46-11 on second and final reading. 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 ____________________, 2012. ____________________________________ M A Y O R ATTEST: _____________________________ City Clerk First Reading__________________ Second Reading________________ 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 MEETI NG OF DECEMBER 6, 2011 ORDINANCE NO. 46 -11 ITEM BEFORE COMMISSION The attached Ordinance 46-11 is amending Section 113.02, "Prohibition of Consumption or Possession of Open Containers of Alcoholic Beverages in Public Places." BACKGROUND This ordinance amendment is before Commission for approval to exclude the Delray Beach Arts Garage from the list of prohibited locations for consumption 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 Commission discretion. Page 1of 1 Coversheet 12/9/2011 htt p ://itweba pp /A g endaIntranet/Bluesheet.as p x?ItemID=5135&Meetin g ID=363 MEMORANDUM TO:Mayor and City Commissioners FROM:Danielle E. Connor, Fire-Rescue Chief THROUGH:David T. Harden, City Manager DATE:December 14, 2011 SUBJECT:AGENDA ITEM 12.A. - REGULAR COMMISSION MEETING OF JANUARY 3, 2012 ORDINANCE NO. 02 -12 ITEM BEFORE COMMISSION The City Commission is requested to approve a revis ion and update of various sections of Chapter 96 of the City Code of Ordinances. BACKGROUND Revision and updating of the Florida Fire Preventio n Code by the state takes place every three (3) yea rs. Section 633.025 (4) of the Florida Statues identifi es the procedure a municipality must follow to amen d the Florida Fire Prevention Code. This section stat es that local amendments sunset every three (3) yea rs and require re-adoption by the City Commission. Some previous local code amendments (i.e. NFPA 170 Fire Safety Symbols, NFPA 326 Safeguarding Tanks and Containers, NFPA 820 Fire Protection in W astewater Treatment and Collection Facilities, etc.) have now been adopted by the State and includ ed in the Florida Fire Prevention Code, thus no longer require local adoption as an amendment to th e code. Other portions of the previously approved and locally adopted code (i.e. NFPA 18 Wetting Agen ts, NFPA 408 Aircraft Hand Portable Fire Extinguishers, NFPA 423 Construction and Protectio n of Aircraft Engine Test Facilities, etc.) were no t adopted therefore require local adoption by the Cit y as justified by our close proximity to the Boca Raton Executive Airport and mutual aid responsibili ties. The sprinkler language in Section (1), subsection (b) is the same as amended in May of 201 1. Likewise, the verbiage in Section (1) subsection (c) remains the same as amended in June/July of 201 1. All the remaining sprinkler language is the original verbiage used during ordinance adoption. RECOMMENDATION Recommend that the City Commission approve the revi sion and update of various sections of Chapter 96 of the City Code of Ordinances. ORDINANCE NO. 2-12 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AMENDING CHAPTER 96, “FIRE SAFETY AND EMERGENCY SERVICES”, BY AMENDING 96.16, “CERTAIN CODES ADOPTED BY REFERENCE”, TO COMPLY WITH THE STATE OF FLORIDA’S UPDATED CHANGES IN THE FIRE PREVENTION CODE STANDARDS; PROVIDING A SAVING CLAUSE, A GENERAL REPEALER CLAUSE, AND AN EFFECTIVE DATE. WHEREAS, the City Commission follows certain NFPA codes in relation to minimum fire safety standards and the Florida Fire Prevention Code; WHEREAS, the City Commission of the City of Delray Beach, Florida, desires to update its Code of Ordinances to reflect recent changes in the Fire Prevention Code Standards. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISS ION OF THE CITY OF DELRAY BEACH, FLORIDA: Section 1 . That Section 96.16, “Certain Codes Adopted by Re ference” of the Code of Ordinances of the City of Delray Beach, Florida, is hereby amended to read as follows: Sec. 96.16. CERTAIN CODES ADOPTED BY REFERENCE. (A) The City adopts by reference and incorporates into this Code as though fully set out herein, that certain code, as it may from time to t ime be amended, known as the Florida Fire Prevention Code, and the incorporated standards. (B) The City adopts by reference and incorporates i nto this Code, as though fully set out herein, those specific codes and standards, from th e Florida Fire Prevention Code. In addition to the codes adopted by the Florida Fire Prevention Code, the City of Delray Beach adopts National Fire Protection Association codes listed below and as they may be amended: NFPA 18 2006 Wetting Agents NFPA 170 2006 Fire Safety Symbols NFPA 326 2005 Safeguarding Tanks and Containers NFPA 408 2004 Aircraft Hand Portable Fire Extinguishers NFPA 423 2004 Construction and Protection of Aircraft Engine Test Facili ties 2 ORD. NO. 2-12 NFPA 496 2003 Purged and Pressurized Enclosures for Electrica l Equipment NFPA 502 2004 Road Tunnels, Bridges, and Limi ted Access Highways NFPA 720 2005 Household Carbon Monoxide Warning Equipment NFPA 780 2004 Installation of Lightning Protection Systems NFPA 820 2003 Fire Protection in Wastewater Treat ment and Collection Facilities NFPA 914 2001 Fire Protection in Historic Structures NFPA 1141 2003 Planned Building Groups NFPA 1962 2003 Care, Use and Service Testing of Fire Hose Incl uding Connections and Nozzles NFPA 1961 2002 Fire Hose The City hereby adopts the following amendments to the Fire Prevention Code of the National Fire Protection Association, N.F.P.A. Pamphlet No. 1, in cluded in the Florida Fire Prevention Code, adopted in this article: (1) Section 13.3.2 is amended to include the following lan guage: Approved automatic fire sprinkler systems as herei nafter defined shall be installed throughout hereinafter constructed buildings and st ructures or appropriate sections thereof: (a) The following buildings of an institutional or educational character; all hospitals, ambulatory, surgical or treatment centers, nursing homes, homes for the aged, convalescent centers, rehabilitation facilities, da y care centers caring for more than 12 clients under 1 year of age, adult congrega te living facilities, and all occupancies and uses of similar nature to those her ein stated, without regard to the type of construction or height of the building or structu re involved. (b) All new construction involving wood or partial wood frame buildings or structures which are 2 stories or more than 20 feet in height as measured from finish ground floor grade to the underside of the t opmost roof assembly. Single- family homes, duplexes and townhouses shall be exem pt from this requirement except as provided in section (d) below. For recon struction or rehabilitation of existing structures where the total area of the add itional/renovation included in the modification does not exceed 50 percent of the area of the building, the work shall be considered exempt from this requirement. 3 ORD. NO. 2-12 (c) All buildings or structures regardless of the t ype of construction which are 3 or more occupied stories or have three (3) or more uno ccupied stories as deemed required by the authority having jurisdiction (AHJ). Occupied story is defined by N.F.P.A. 101 the Life Safety Code as a story occ upied by people on a regular basis. Stories used exclusively for mechanical equ ipment rooms, elevator penthouse, and similar spaces are not occupiable stories. (d) All buildings or structures regardless of the t ype of construction which are in excess of 12,000 square feet per floor, or an aggre gate of 12,000 square feet if there is unprotected communication between floors or inter mediate spaces. (e) All portions or sections of buildings or struct ures which are below grade or which constitute the basement area of a building or structure regardless of square footage of floor area or type of constructio n. The automatic fire sprinkler systems herein referred to and the instal lation thereof which is required by this ordinance shall be as contained in and provided for with the applicable standard specified for this section unde r appendix A of this Fire Prevention Code. (2) Section 13.2.2.2 is amended to include the following l anguage: All hereafter constructed buildings and structures more than 3 stories in height or 36 feet in height or all buildings more than 2 stories in height and more than 30,000 square feet per floor level, shall be equipped with approv ed Class 1 standpipes to provide reasonable safety to persons and property. For purposes of this section, height is measured fr om finish ground floor grade to the underside of the topmost roof assembly. (3) Section 13.2.3 is amended to include the following lan guage: All systems, equipment, tanks, piping, devices, app liances, controls, or storage facilities over which the code contains regulatory provisions, or which are required by any other law, shall be maintained in operative condition at all times to provide the service for which installed. All fire sprinkler, standpipe, and fire pump system s shall be annually inspected, serviced, and maintained under a written service contract wit h service companies licensed by the State of Florida to provide such services and which possess a current occupational license for the City of Delray Beach providing for regular maintenance and testing of the systems in accordance with the applicable stand ards specified under Appendix A of this Fire Prevention Code and N.F.P.A. 13A, N.F.P.A. 14A and N.F.P.A. 25. 4 ORD. NO. 2-12 The service company performing the maintenance and tests shall forward a written report to the Fire-Rescue Department indicating the nature of any repairs, modifications, and/or corrections completed by the service company, the date and time of such tests and inspections and any other informa tion which may be required by the fire-rescue services department. In addition, a cop y of the service report must be maintained on the premises, and it shall be subject to inspection by the Fire-Rescue Department at anytime. (4) Section 13.3.1.7 is amended to include the following l anguage: Valves on connections to water supplies, sectional control and isolation valves, and other valves in supply pipes to sprinklers and othe r fixed water based fire suppression systems shall be supervised by an approved Central statio n signaling service. (5) Section 13.7.1.1 is amended to include the following l anguage: Remote monitoring locations shall not be permitted to verify fire alarm signals prior to reporting them to the Fire-Rescue Department. 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 immedia tely upon its passage on second and final reading. PASSED AND ADOPTED in regular session on second and final reading on this ____ day of _______________, 2012. ___________________________________ MAYOR ATTEST: ___________________________ City Clerk First Reading________________ Second Reading______________