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02-05-13 Regular Meeting MinutesFEBRUARY 5, 2013 A Regular Meeting of the City Commission of the City of Delray Beach, Florida, was called to order by Mayor Thomas F. Carney, Jr. in the Commission Chambers at City Hall at 6:00 p.m., Tuesday, February 5, 2013. 1. Roll call showed: Present - Commissioner Christina Morrison Commissioner Alson Jacquet Commissioner Adam Frankel Commissioner Angeleta E. Gray Mayor Thomas F. Carney, Jr. Absent - None Also present were - Douglas E. Smith, Interim City Manager Brian Shutt, City Attorney Chevelle D. Nubin, City Clerk 2. The opening prayer was delivered by Reverend Paula Hayward, Board member of the Delray Beach Interfaith Clergy Association. 3. The Pledge of Allegiance to the flag of the United States of America was given. 4. AGENDA APPROVAL. Mayor Carney noted the addition of Item. 5.A., December 11,_ 2012 Regular Meeting Minutes and Item S.B., January 3 2013 Regular Meeting Minutes. In addition, Mayor Carney noted the addition of Item 8.L., Reimbursement of City Manaeer Travel Expenses and Item S.W., Purchase Award to the North American Fire Equipment Company to the Consent Agenda by addendum. Mr. Carney stated there is also additional information for Item 10.I., Proposal/Eastman Aggregate Enterprises, LLC. For clarification, Mr. Smith stated with regard to the equipment company staff is requesting amendment of that no longer being a sole source designation as staff received two quotations for that. Mr. Jacquet requested that Item 8.I., Resolution No. 11 -13 be removed from the Consent Agenda and moved as a sub -item to Ordinance No. 01 -13. The City Attorney stated pursuant to the City's Charter, the City has to adopt a resolution placing the Charter amendment on the ballot. 02/05/13 Mr. Jacquet requested that Item 8.J., Resolution No. 06 -13 be removed from the Consent Agenda and moved to the Regular Agenda as Item 7.1). Ms. Morrison moved to approve the Agenda as amended, seconded by Mr. Frankel. Upon roll call the Commission voted as follows: Mr. Jacquet — Yes; Mr. Frankel — Yes; Mrs. Gray — Yes; Mayor Carney — Yes; Ms. Morrison — Yes. Said motion passed with a 5 to 0 vote. 5. APPROVAL OF MINUTES: Mr. Frankel moved to approve the Minutes of the Regular Meeting of December 11, 2012, seconded by Mrs. Gray. Upon roll call the Commission voted as follows: Mr. Frankel — Yes; Mrs. Gray — Yes; Mayor Carney — Yes; Ms. Morrison — Yes; Mr. Jacquet — Yes. Said motion passed with a 5 to 0 vote. Mr. Frankel moved to approve the Minutes of the Regular Meeting of January 3, 2013, seconded by Mrs. Gray. Upon roll call the Commission voted as follows. Mrs. Gray — Yes; Mayor Carney — Yes; Ms. Morrison — Yes; Mr. Jacquet — Yes; Mr. Frankel — Yes. Said motion passed with a 5 to 0 vote. 6. PROCLAMATIONS: 6.A. Recoenizin2 2 -1 -1 Awareness Week —February 11-17,2013 Mayor Carney read and presented a proclamation hereby proclaiming February 11 -17, 2013 as 211 Awareness Week. Ms. Patrice Schroeder, Community Relations Specialist and Public Information Officer for 2 -1 -1 Palm Beach Treasure Coast came forward to accept the proclamation and gave a few brief comments. 7. PRESENTATIONS: 7.A. RESOLUTION NO. 07 -13: Approve Resolution No. 07 -13 recognizing and commending James Tabeek for 30 years of dedicated service to the City of Delray Beach. office.} The caption of Resolution No. 07 -13 is as follows: A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, RECOGNIZING AND COMMENDING JAMES H. TABEEK FOR THIRTY YEARS OF DEDICATED SERVICE TO THE CITY OF DELRAY BEACH. (The official copy of Resolution No. 07-13 is on file in the City Clerk's 2 02/05/13 Mayor Carney read and presented Resolution No. 07 -13 and a plaque to Jim Tabeek for 30 years of dedicated service to the City of Delray Beach. Jim Tabeek came forward to accept the resolution and gave a few brief comments. Mr. Frankel moved to approve Resolution No. 07 -13, seconded by Mr. Jacquet. Upon roll call the Commission voted as follows: Mayor Carney — Yes; Ms. Morrison — Yes; Mr. Jacquet — Yes; Mr. Frankel — Yes; Mrs. Gray — Yes. Said motion passed with a 5 to 0 vote. Mr. Green gave a few brief comments on behalf of the Fire Department. 7.B. S.P.I.R.I.T. (Service, Performance, Integrity, Responsibility, Innovation, Teamwork) Committee Quarterly Awards Presentation Gina Gallina congratulated Sergeant Brian Campbell who was officially sworn in this morning as sergeant. She gave a few brief comments as to why Sergeant Campbell should be nominated for a SPIRIT Quarterly Award. Kimberly Wynn introduced and congratulated Dolores Rangel for being nominated as the SPIRIT Quarterly Award winner for her exceptional dedication to Project Holiday. 7.C. 2013 Beach Renourishment Project Presentation Matt Jock, Consultant with the Great Lakes Dredge and Dock Company, gave a brief update on the 2013 Beach Renourishment Project. 7.D. RESOLUTION NO. 06 -13: Approve Resolution No. 06-13; supporting the Palm Beach County Guardian Ad Litem Program. office.) The caption of Resolution No. 06 -13 is as follows: A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, EXPRESSES THE SUPPORT OF THE PALM BEACH COUNTY GUARDIAN AD LITEM PROGRAM; PROVIDING FOR AN EFFECTIVE DATE. {The official copy of Resolution No. 06 -13 is on file in the City Clerk's Mayor Carney read Resolution No. 06 -13 into the record. Mr. Jacquet moved to approve Resolution No. 06 -13, seconded by Ms. Morrison. Upon roll call the Commission voted as follows: Ms. Morrison Yes; Mr. Jacquet Yes; Mr. Frankel Yes; Mrs. Gray Yes; Mayor Carney -- Yes. Said motion passed with a 5 to 0 vote. 3 02/05/13 Tonya Cajuste came forward to accept the resolution and gave a few brief comments. 8. CONSENT AGENDA: City Manager Recommends Approval. 8.A. FINAL SUBDIVISION PLAT APPROVAL/ VILLAGE SQUARE AT DELRAY BEACH: Approve a proposed residential development that includes 252 units being platted as Village Square at Delray Beach located at the Southeast corner of S.W. 7t" Street and Auburn Avenue. S.B. REQUEST FOR A_ SIDEWALK DEFERRAL /1041 SEASPRAY AVENUE: Approve an agreement to defer installing a sidewalk in front of the property located at 1041 Seaspray Avenue. S.C. FIRST AMENDMENT TO THE INTERLOCAL AGREEMENT: COMMUNITY REDEVELOPMENT AGENCY (CRA)/IRRIGATION AND MAINTENANCE OF LANDSCAPING FOR DELRAY BEACH GATEWAY FEATURE PROJECT. Approve First Amendment to the Interlocal Agreement with the Community Redevelopment Agency (CRA) to provide funding for the irrigation and landscaping maintenance associated with the streetscape beautification project known as the West Atlantic Avenue Gateway Feature. 8.D. CONSENT TO ASSIGNMENTI CORZO CASTELLA CARBALLO THOMPSON SALMAN, P.A. (C3TS) TO STANTEC CONSULTING SERVICES, INC.: Approve Consent to Assignment with Corzo Castella Carballo Thompson Salman, P.A. (C3TS) to Stantec Consulting Services, Inc. S.E. SERVICE AUTHORIZATION NO. 12.01.11 MATHEWS CONSULTING, INC.: Approve Service Authorization No. 12.01.1 with Mathews Consulting, Inc. in the amount of $47,987.00 for construction administration and specialty inspection services, for the Congress Avenue Force Main Replacement Project. Funding is available from 442 - 5178 -536 -68.89 (Water & Sewer Renewal & Replacement Fund: Improvements Other /Congress Avenue Force Main Replacement). 8.F. INTERLOCAL AGREEMENT/PALM BEACH COUNTY: ONBOARD MOBILE GATEWAY: Approve an Interlocal Agreement with Palm Beach County in the amount of $64,076.70 for the purchase of onboard Mobile - Gateway (oMG) wireless networking platform to be installed and utilized on all Advanced Life Support (ALS) units. Funding is available from 001 - 2315 -526 -64.90 (General Fund: Machinery /Equipment/Other Machinery/ Equipment) and 001- 2315- 526 -52.16 (General Fund: Operating Supplies /EMS Supplies). 8.G. HOUSING REHABILITATION GRANT /CONTRACT AWARD: Award one (1) Housing Rehabilitation contract through the Community Development Block Grant (CDBG) to the lowest responsive bidder, Built Solid Construction, LLC for 1009 N.W. 3rd Terrace in the amount of $28,821.92. Funding is available from 118- 1963 - 554 -49.19 (Neighborhood Services: Other Current 4 02/05/13 Charges/Housing Rehabilitation). 8.H. MUTUAL AID AGREEMENT/PALM BEACH COUNTY LAW ENFORCEMENT AGENCIES: Approval to renew a Mutual Aid Agreement with subscribing law enforcement agencies in Palm Beach County to voluntarily cooperate and assist other law enforcement agencies in Palm Beach County on routine law enforcement matters across jurisdictional lines. 8.1. THIS ITEM WAS MOVED AS A SUB -ITEM TO ITEM 11.A.1. S.J. THIS ITEM WAS MOVED TO ITEM 7.D. , PRESENTATIONS. 8.K. REVIEW OF APPEALABLE LAND DEVELOPMENT BOARD ACTIONS: Accept the actions and decisions made by the Land Development Boards for the period January 14, 2013 through February 1, 2013. 8.L. REIMBURSEMENT OF CITY MANAGER TRAVEL EXPENSES: Approve reimbursement of new City Manager Louie Chapman Jr.'s travel expenses in an amount not to exceed $3,600.00 for trips to Delray Beach prior to April 1, 2013. Funding is available from 001 -1211 -512 -40.20 (General Fund: Travel & Per Diem/Non- Employee Travel). (ADDENDUM) 8.M. AWARD OF BIDS AND CONTRACTS: 1. Bid award to Alpha Scape Lawn & Landscaping at an annual estimated cost of $25,198.00 for landscape maintenance of Storm Water Retention Areas and the Improved Water Retention Areas. Funding is available from 448 -5416 -538 -34.90 (Storm Water Utility Fund: Other Operating /Other Contractual Services). 2. Bid award to Weekly Asphalt and Paving, Inc. in the amount of $39,369.25 for the rehabilitation of CSX Transportation, Inc. (CSXT) railroad crossing located at S.W. 10th Street. Funding is available from 334 - 3162 - 541 -46.90 (General Construction Fund: Repair & Maintenance Services /Other Repair/Maintenance Costs). 3. Contract award to A & A Associates International, Inc. in the amount of $18,158.40 for security services at Pompey Park. Funding is available from 001 - 4127 -572 -31.90 (General Fund: professional Services /other Professional Services). 4. Contract award to Intercounty Engineering, Inc. in the amount of $945,049.00 for the construction of the Congress Avenue Force Main Replacement project. Funding is available from 442 -5178- 536 -68.89 (Water & Sewer Renewal & replacement Fund: Improvements Other /Congress Avenue Force Main Replacement). 5. Purchase award to Florida Bullet in the amount of $87,428.50 to purchase ammunition for training, on -duty -use and the S.W.A.T. 5 02/05/13 team. Funding is available from 001- 2111- 521 -52.20 (General Fund: Operating Supplies /General Operation Supplies) and 001- 2115 -521 -52.19 (General Fund: Operating Supplies /Swat Expenditures). 6. Purchase award to Florida Sports Cycle in the amount of $22,155.00 for three (3) replacement ATVs for Ocean Rescue. Funding is available from 501- 3312 -591 -64.20 (Garage Fund: Machinery /Equipment /Automotive). 7. Purchase award to North American Fire Equipment Company (NAFECO) in the amount of $67,914.33 as a sole provider for the replacement of thirty -three (33) Firefighter Personnel Protective Equipment (bunker gear). Funding is available from various accounts. 8. Purchase award to Industrial Design Research in the amount of $47,420.00 for four (4) Surveyor A standard model movable lifeguard towers. Funding is available from 001 - 4123 -572 -63.40 (General Fund: Improvements Other /Recreational Improvements). Mr. Frankel moved to approve the Consent Agenda as amended, seconded by Mrs. Gray. Upon roll call the Commission voted as follows: Mr. Jacquet Yes; Mr. Frankel — Yes; Mrs. Gray — Yes; Mayor Carney --- Yes; Ms. Morrison — Yes. Said motion passed with a 5 to 0 vote. At this point, the Commission moved to Item 9, Comments and Inquiries on Non - Agenda Items from the City Manager and the Public. 9.A. City Manager's response to prior public comments and inquiries. Douglas E. Smith, Interim City Manager, stated at the January 3, 2013 meeting Mr. Carstarphen expressed concerns about the Police Department giving out tickets at the stop sign on 8h Avenue and S.W. 7t' Street and about the speed of vehicles on A -1 -A while he was bike riding. Mr. Smith stated staff was able to speak to Mr. Carstarphen that evening and gave him information about the staffing and the progress that we have made within and around his community. Mr. Smith stated the Police officer strongly recommended that Mr. Carstarphen go with his neighbor that have similar concerns and start building a community network. Mr. Smith stated the suggestion that was passed along was for them to assemble a list of their most important concerns and come up with suggestions on how the Police Department could help them with addressing those concerns. In addition, Mr. Smith stated staff did several patrols on different days specifically at the beach area and noted speeds in the low to mid -30 range. With regard to the area with the stop sign, there is sometimes select enforcement at that particular location because residents have complained about that area being hazardous. 6 02/05/13 9.B. From the Public. 9.B.1. Robert Ganger, former President of the Delray Beach Historical Society, stated he discovered a file dated 1971 -1973 which discussed the Beach Erosion Project which led eventually to the 3973 first renourishment by that same outfit that was the subject of a bond issue that was advertised by Delray Beach in March 1972. Mr. Ganger distributed a copy of the advertisement from 1972 and urged the Commission to read it because it is the beginning of a file that the Delray Beach Historical Society is going to put together taking back the history of Delray's beach. 9.B.2. Rodney Stevens, 39 S.W. 9th Avenue, Delray Beach, FL 33444, owns an ATV and he and his friends are getting hassled and being told they cannot ride them. He stated there are only two empty fields; one on S.W. 12th Avenue and the one behind Home Depot. 9.13.3. Harry Webb, resident of Delrav Beach his entire life, stated he and his friends are requesting an area to ride their ATV's. Mr. Webb stated the Police Department took his bike away from him and noted he has the Bill of Sale to show they own the bikes. He stated they are trying to abide by the law and the nearest place they can go is Belle Glade, Mr. Webb stated they only ride on Sundays on their day off and are trying to find something useful with their time. 9.B.4. Lonte Johnson, Delray Beach resident and ATV owner, stated he goes to school and works six days a week and would like one day (preferably Sundays) to do something recreational and ride to help relieve the stress from the entire week. Mr. Johnson suggested trading some community service time to help clean up the area for an area where they can ride. He stated they are being violated by the Delray Beach Police Department with regard to the bikes being confiscated and feels he and his friends have been put through so much in order to get the bikes back. Mr. Johnson stated they are not criminals and they just want to ride and have fun. 9.B.5. Herman Stevens, City of Gulf Stream, Attorney representing the three previous sneakers, stated these men came to him because they have been ticketed and the Police Department has confiscated their ATV. Mr. Stevens stated he is trying to assist these men in getting their ATV back and all they are requesting is a place to ride. 9.13.6. Pauline Moody, 609 S.W. 8th Avenue, Delray Beach, FL 33444, commented about the laws for ATV's and dirt bikes. Secondly, Ms. Moody asked if there is way that the City can enforce the laws on littering when it comes to people throwing their cigarette butts on the ground. She stated everywhere you go throughout the City there are cigarette butts on the ground. 9.B.7. Stephen Blum. Antilles Homeowners' Association, 115 Venetian Drive Unit "C ", Delray Beach, FL 33483, stated he is very pleased with the Gateway feature to Delray Beach; however, he noted that the giant S foot sign needs to be changed so that it reads: Mayor Tom Carney, Commissioner Christina Morrison, and Douglas E. Smith, Interim City Manager. 7 02/05/13 At this point, the time being 7:06 p.m., the Commission moved to Item 11, the duly advertised Public Hearings portion of the Agenda. 11. PUBLIC HEARINGS: II.A. ORDINANCE NO. 01 -13: Consider calling for a referendum on proposed revisions to the Charter of the City of Delray Beach to amend Section 3.12, "Procedure" to provide that the requirement for a roll call vote be removed from the Charter and that the voting procedure shall be set forth in the rules of the Commission and that the votes need not be in the affirmative but there still must be three concurring votes on an item; providing for a referendum on March 12, 2013. The caption of Ordinance No. 01 -13 is as follows: AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, PROVIDING FOR CHARTER REVISIONS BY AMENDING SECTION 3.12, "PROCEDURE "; TO PROVIDE THAT THE REQUIREMENT FOR A ROLL CALL VOTE BE REMOVED FROM THE CHARTER AND THAT THE VOTING PROCEDURE SHALL BE SET FORTH IN THE RULES OF THE COMMISSION AND THAT THE VOTES NEED NOT BE IN THE AFFIRMATIVE BUT THERE STILL MUST BE THREE CONCURRING VOTES ON AN ITEM; PROVIDING FOR A REFERENDUM ON MARCH 12, 2013, PROVIDING A GENERAL REPEALER CLAUSE; PROVIDING A SAVING CLAUSE; PROVIDING AN EFFECTIVE DATE. (The official copy of Ordinance No. 01 -13 is on file in the City Clerk's office.) The City Attorney read the caption of the ordinance and stated currently in the City's Charter every action approved by the Commission must be by roll call vote. The change would allow the voting procedure to be set forth in the local rules as the Commission adopts them on an annual basis. Also, the City Attorney stated currently we have the word "affirmative" in there where it must be three (3) affirmative votes and by changing it to three (3) "concurring" votes the City is not changing the amount of votes needed to approve or deny an application but just changing the word "affirmative" to "concurring ". S 02/05/13 A public hearing was held having been legally advertised in compliance with the laws of the State of Florida and the Charter of the City of Delray Beach, Florida. Mayor Carney declared the public hearing open. There being no one who wished to address the Commission regarding Ordinance No. 01 -13, the public hearing was closed. Mr. Jacquet asked if this could be a violation of the single subject rule. Brief discussion between Commissioner Jacquet and the City Attorney followed. Mr. Jacquet stated he understands that this would streamline things and would help the meetings go a little faster; however, Mr. Jacquet expressed concern over the appearance of impropriety. Mrs. Gray concurred with comments expressed by Mr. Jacquet about the roll call and the second part of this to change the word "affirmative" to "concurring ". Ms. Morrison stated this will make it more transparent because right now it looks like the people with the last two votes sometimes can vote to make them look better politically. She stated Palm Beach County.has been doing it this way and feels it is easy to put in the minutes who dissents. Mayor Carney concurs with comments expressed by Commissioner Morrison and stated he does not believe this gives the appearance of impropriety. Mayor Carney stated this way one cannot time your votes because you have to make your votes at the time of the motion. In his opinion, Mayor Carney stated that is a clearer point of what you believe and don't believe as opposed to waiting until the vote gets around to you and then it is convenient for you to vote "yay" or "nay" depending on the political wimp. Ms. Morrison moved to adopt Ordinance 01 -13 on Second and FINAL Reading, seconded by Mr. Frankel. Upon roll call the Commission voted as follows: Mr. Frankel — Yes; Mrs. Gray — Yes; Mayor Carney — Yes; Ms. Morrison — Yes; Mr. Jacquet —No. Said motion passed with a 4 to 1 vote, Commissioner Jacquet dissenting. 11.A.1. RESOLUTION NO. 11 -13: Approve Resolution No. 11 -13 calling for a Special Election on a Charter change to be held on March 12, 2013, to provide for a referendum on the Charter change presented in Ordinance No. 01 -13; providing that the requirement for a roll call vote be removed from the Charter and that the voting procedure shall be set forth in the rules of the Commission and that the votes need not be in the affirmative, but there still must be three (3) concurring votes on an item. The caption of Resolution No. 11 -13 is as follows: A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, CALLING FOR A SPECIAL ELECTION ON A CHARTER CHANGE TO BE HELD ON MARCH 12, 2013, TO PROVIDE FOR A 9 02/05/13 REFERENDUM ON THE CHARTER CHANGE PRESENTED IN ORDINANCE NO. 01 -13; PROVIDING THAT THE REQUIREMENT FOR A ROLL CALL VOTE BE REMOVED FROM THE CHARTER AND THAT THE VOTING PROCEDURE SHALL BE SET FORTH IN THE RULES OF THE COMMISSION AND THAT THE VOTES NEED NOT BE IN THE AFFIRMATIVE, BUT THERE STILL MUST BE THREE CONCURRING VOTES ON AN ITEM, PROVIDING A SAVING CLAUSE AND AN EFFECTIVE DATE. (The official copy of Resolution No. 11 -13 is on file in the City Clerk's office.) Mr. Frankel moved to approve Resolution No. 11 -13, seconded by Ms. Morrison. Upon roll call the Commission voted as follows: Mrs. Gray — Yes; Mayor Carney — Yes; Ms. Morrison — Yes; Mr. Jacquet — No; Mr. Frankel — Yes. Said motion passed with a 4 to 1 vote, Commissioner Jacquet dissenting. At this point, the time being 7:17 p.m., the Commission moved to Item 12, First Readings. 12. FIRST READINGS: 12.A. ORDINANCE NO. 02 -13: Consider approval to amend Section 91.22, "Prohibiting Dogs in Public Buildings, Places of Business ", in order to allow service dogs in public buildings or places of business in accordance with the Americans with Disabilities Act. If passed, a public hearing will be held on February 19, 2013. office.) The caption of Ordinance No. 02 -13 is as follows: AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AMENDING THE CODE OF ORDINANCES OF THE CITY OF DELRAY BEACH, BY AMENDING SECTION 91.22, "PROHIBITING DOGS IN PUBLIC BUILDINGS, PLACES OF BUSINESS ", IN ORDER TO ALLOW SERVICE DOGS IN PUBLIC BUILDINGS OR PLACES OF BUSINESS, PROVIDING A GENERAL REPEALER CLAUSE; SAVING CLAUSE; AND AN EFFECTIVE DATE. {The official copy of Ordinance No. 02 -13 is on file in the City Clerk's 10 02/05/13 The City Attorney read the caption of the ordinance and stated this ordinance amends the Code of Ordinances to be in compliance with the ADA (Americans with Disabilities Act) to allow service dogs in public buildings or places of business in accordance with the ADA. Mr. Jacquet moved to approve Ordinance No. 02 -13 on FIRST Reading, seconded by Mr. Frankel. Upon roll call the Commission voted as follows: Mayor Carney — Yes; Ms. Morrison — Yes; Mr. Jacquet — Yes; Mr. Frankel — Yes; Mrs. Gray — Yes. Said motion passed with a 5 to 0 vote. At this point, Commissioner Jacquet left the dais. 12.B. ORDINANCE NO. 04 -13: Consider an amendment to Ordinance No. 43 -11 which revises "Section 1, Designation ", and "Section 2, Requirements of Designation" of Ordinance No. 43 -11, and an amendment to Land Development Regulations (LDR) Section 4.5.1(1)(13), "Local Register of Historic Places ", to provide for a name change to "Historic Fontaine Fox House Properties" and the revised legal description of the designated boundary. If passed, a public hearing will be held on February 19, 2013. office.) The caption of Ordinance No. 04 -13 is as follows: AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AMENDING ORDINANCE NO. 43 -11 THAT PROVIDES FOR THE HISTORIC DESIGNATION OF THE HISTORIC FONTAINE FOX HOUSE PROPERTIES; AMENDING THE LAND DEVELOPMENT REGULATIONS OF THE CITY OF DELRAY BEACH, FLORIDA, BY AMENDING ARTICLE 4.5, "OVERLAY AND ENVIRONMENTAL MANAGEMENT DISTRICTS ", SECTION 4.5.1, "HISTORIC PRESERVATION: DESIGNATED DISTRICTS, SITES, AND BUILDINGS ", SUBSECTION (I), "LOCAL REGISTER OF HISTORIC PLACES" TO REVISE THE LEGAL DESCRIPTION, PROVIDING A SAVING CLAUSE, A GENERAL REPEALER CLAUSE, AND AN EFFECTIVE DATE. (The official copy of Ordinance No. 04 -13 is on file in the City Clerk's The City Attorney read the caption of the ordinance. Paul Dorling, AICP, Director of Planning and Zoning, stated this amends the legal description of the Fontaine Fox historic designation located at the north end of the beach. Mr. Dorling stated the ordinance also changes the designated site name and 11 02/05/13 modifies the development restrictions on the site. He stated it allows a maximum amount of dwelling units to be 4 versus 3. Mr. Dorling stated the modification is in connection with a plat which has subdivided the former Lot 2 into two legal lots of record and allows an additional unit to be built on Lot 2. At its meeting of January 16, 2013, the Historic Preservation Board (HPB) recommended approval with a 6 to 0 vote. Mrs. Gray moved to approve Ordinance No. 04 -13 on FIRST Reading, seconded by Mr. Frankel. Upon roll call the Commission voted as follows: Ms. Morrison -- Yes; Mr. Frankel — Yes; Mrs. Gray — Yes; Mayor Carney -- Yes. Said motion passed with a 5 to 0 vote. At this point, Commissioner Jacquet returned to the dais. At this point, the time being 7:21 p.m., the Commission moved to Item 10, Regular Agenda. 10. REGULAR AGENDA: 10.A. WAIVER REQUESTIMcDONALD'S RESTAURANT: Consider approval of a waiver request to Land Development Regulations Section 4.6.8, "Lighting ", to allow 47.5 footcandles where a maximum of 12.0 footcandles is allowed on -site, and 40.2 footcandles where a maximum of 0.25 footcandles is allowed as spillage for the McDonald's Restaurant located at the northwest corner of West Atlantic Avenue and Military Trail at 14529 South Military Trail. (Quasi- Judicial Hearing) Mayor Carney read the City of Delray Beach Quasi - Judicial Hearing rules into the record for this item and all subsequent Quasi - Judicial items. Mayor Carney asked the Commission to disclose their ex parte communications. The Commission had no ex parte communications to disclose. Chevelle D. Nubin, City Clerk, swore in those individuals who wished to give testimony on this item. Paul Dorling, AICP, Director of Planning and Zoning, entered the Planning and Zoning Department project file #2012 -071 into the record. Mr. Dorling stated this is a waiver request to LDR Section 4.6.8 "Lighting" in association with the McDonald's site on Military Trail. He stated this is exceed the maximum foot candles which are proposed to be 12 foot candle is allowed on- site and a 40.2 foot candle where a maximum of 0.25 foot candle is allowed as spillage for McDonald's Restaurant located at 14529 Military Trail. Mr. Dorling stated this is in association with a site plan modification where there was some on -site changes being done to construct a dual drive -thru and some landscape upgrades and parking lot modifications. He stated this site is open 24 hours and lighting and safety is a concern. 12 02/05/13 At its meeting of January 9, 2013, the Site Plan Review and Appearance Board ( SPRAB) considered this as part of that site plan modification and the Board voted 4 to 3 to recommend approval of the change to allow the existing lighting to be retained. Staff recommends approval given the circumstances that it is all commercial around it. Craig McDonald, speaking on behalf of applicant McDonald's LLC, stated the pole heights was a condition of SPRAB and some of the concern was on the west property lines. Mr. McDonald stated there was a pole showing with three heads and one with two and they asked that they be removed at the time and McDonald's did not want to do that. Mr. McDonald stated since then he found out that the one with three only has two head and the one with two only has one head. He stated there is no residential around and they are trying to modify the parking lot. have Wi -Fi. Mr. Jacquet inquired about Wi -Fi. Mr. McDonald stated McDonald's will Ms. Morrison thanked McDonald's for lighting up the area. Mayor Carney stated if anyone from the public would like to speak in favor or in opposition of the request, to please come forward at this time. Carole Henderson, 1441 East Begley Park Drive, Delray Beach, FL 33445, stated the City recently annexed the shopping center and expressed concern that one of the four stated criteria for approving a waiver is that one would approve similar waivers given to similar establishments. Ms. Henderson stated the entire area of Military Trail is a very well lighted area there are lots of other lights in the shopping center. She stated there is no need for McDonald's to have excessive lighting and feels it detracts from the image of the community. Ms. Henderson stated it is time for us to start bringing these redeveloped areas into compliance with City standards. She suggested that staff ask the applicant to tone down the lighting and should not be four (4) times what the City Code permits. There being no one else who wished to address the Commission regarding the waiver request, the public hearing was closed. The following individual gave a brief rebuttal: Mr. Dorling stated the applicant has reduced the lighting to twice the City's standard rather than four times our standard. He stated the waivers talk about it would not be a special privilege the same way we would not be granted under similar circumstances. Mr. Dorling stated he believes in similar circumstances given its non - proximity to residential and the fact that it is open 24 -hours he believes it would be considered for other properties as well. Mr. McDonald stated they are bringing this site into full compliance with the landscaping Code. 13 02/05/13 Mr. Jacquet stated the area between Wells Fargo and McDonald's is very dark and agrees that we do need some lighting. Mr. Jacquet stated he supports the waiver based on the safety reasons and noted that Ms. Anderson made some great points. Ms. Morrison stated she supports the waiver because she feels this is not going to impact any of the neighborhoods and light creates safety. Mrs. Gray expressed concern over the double drive -thru because of the people that have to walk to their cars and the driveway is in front of the doorway. She feels it is very important to have the lighting there for safety reasons and it is 24 -hours and is just as busy at night as it is at lunchtime. Mrs. Gray stated she supports the waiver. Mayor Carney stated under these circumstances he agrees with staff and this warrants the granting of the waiver. 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). Ms. Morrison moved to adopt the Board Order approving the waiver request, seconded by Mr. Frankel, seconded by Mr. Frankel. Upon roll call the Commission voted as follows: Mr. Jacquet — Yes; Mr. Frankel — Yes; Mrs. Gray — Yes; Mayor Carney — Yes; Ms. Morrison — Yes. Said motion passed with a 5 to 0 vote. 10.B. WAIVER REQUEST/14T'_' ANNUAL DELRAY BEACH GA_R_LIC FEST: Consider approval of a waiver request to Land Development Regulations (LDR) Section 4.6.7(F)(3)(f), Special Event Non- Roadway Banner Signing ", to allow sponsor banners to be hung on the perimeter fencing of the 14th Annual Delray Beach Garlic Fest site and to allow banners to exceed 20 square feet, from February 7 -10, 2013. (Quasi - Judicial Hearing Chevelle D. Nubin, City Clerk, swore in those individuals who wished to give testimony on this item. Mayor Carney asked the Commission to disclose their ex parte communications. Mr. Frankel stated he spoke with Sara Martin and received two tickets from Nancy Stewart for the Garlic Fest. Mayor Carney stated received two tickets as well but before he knew about this request. Ms. Morrison stated she has spoken with Nancy Stewart and she received two tickets to Garlic Fest. Mr. Jacquet and Mrs. Gray had no ex parte communications to disclose. Robert A. Barcinski, Assistant City Manager, stated this is a request for the Commission to consider approval of a waiver to the LDRs which would allow banners to be hung in the Garlic Fest site from February 7 -10, 2013 that exceed to 20 square feet limit of this LDR to a size that would be no greater than any that have been allowed in the past. Staff recommends approval. 14 02/05/13 Nancv Stewart - Franczak Executive Director for the Delray Beach Garlic Fest, 2275 South Swinton Avenue, Delray Beach, FL 33444, concurs with comments expressed by Mr. Barcinski. There was no rebuttal or cross - examination. Ms. Morrison stated the Garlic Fest incurs no City expenses. Mr. Barcinski stated the City Commission changed the policies a couple of years ago so now all events pay 100% of the City's costs. Ms. Morrison stated the only financial impact of this event on the City is that it brings a lot of people downtown. Mayor Carney stated he is glad to see that there will be some clarity going forward as to what signs will and what signs will not be permitted. He stated it is very important for sponsors as well as the City know what is permitted and what is not permitted. Mr. Frankel moved to adopt the Board Order approving the waiver request, seconded by Mrs. Gray. Upon roll call the Commission voted as follows: Mr. Frankel — Yes; Mrs. Gray — Yes; Mayor Carney — Yes; Ms. Morrison — Yes; Mr. Jacquet — Yes. Said motion passed with a 5 to 0 vote. 10.C. RECONSIDERATION OF A WAIVER REOUEST/LINTCO DEVELOPMENT: Consider a request for reconsideration of a waiver request to reduce the stacking distance from the required fifty feet (50') for parking lots with fifty -one (51) or more spaces to twenty -eight feet nine inches (28'9 ") at the northern entrance on S.W. 4th Avenue for Lintco Development. The City Attorney stated this was denied at the last meeting this is now a reconsideration. He stated either Commissioner Jacquet, Commissioner Morrison, or Commissioner Gray would need to make a motion to reconsider this. The City Attorney stated if the Commission votes to reconsider this item the actual hearing will occur at the February 19, 2013. Mr. Jacquet moved to reconsider the waiver request on February 19, 2013, seconded by Ms. Morrison. Upon roll call the Commission voted as follows: Mrs. Gray Yes; Mayor Carney — Yes; Ms. Morrison — Yes; Mr. Jacquet — Yes; Mr. Frankel — Yes. Said motion passed with a 5 to 0 vote. 10.D. AMENDMENT NO. I (CHANGE ORDER NO. _ 1)/ LAYNE INLINER, LLC.: Consider approval of Amendment No. I (C.O. No. 1) to Layne Inliner, LLC., in the amount of $25,712.00 for the additional installation of a pipe liner at Hyacinth Drive, to line an existing damaged storm water pipe. Funding is available from 448 - 5416 -538 -46.90 (Storm Water Utility Fund: Repair & Maintenance Service /Other Repair/Maintenance Cost). 15 02/05/13 Victor Majtenyi, Interim Director of Environmental Services, stated in December 2012 staff asked Commission to approve an agreement with Layne Inliner, LLC utilizing contract pricing from the City of Orlando contract for lining pipe. Mr. Majtenyi stated it was approved for approximately $17,000.00 and the City has another situation where we need more storm drains. He stated as an amendment to that agreement for an additional $25,000.00 for a drainage system in Hyacinth Drive. Mayor Carney asked if this is an extension of the existing job that they are doing. Mr. Majtenyi stated no this is in a different location but utilizing the contract pricing in the City of Orlando contract; the same scope of work but a different area. Ms. Morrison moved to approve Amendment No. 1 (Change Order No. 1) to Layne Inliner, LLC, seconded by Mr. Frankel. Upon roll call the Commission voted as follows: Mayor Carney — Yes; Ms. Morrison — Yes; Mr. Jacquet — Yes; Mr. Frankel — Yes; Mrs. Gray — Yes. Said motion passed with a 5 to 0 vote. 10.E. BID AWARD /ACCURATE EVENT GROUP: Consider approval of a bid award to Accurate Event Group in the amount of $30,409.50 for private security services from February 20, 2013 through March 4, 2013 for the Champions/World Tour Tennis Tournament and authorize staff to negotiate a lower price. Funding is available from 001 - 4210 - 575 -55.40 (General Fund: Recreational Supplies /Tennis Tournament). Robert A. Barcinski, Assistant City Manager stated the Commission is requested to approve the bid award to Accurate Event Group (second low bidder) to provide security for the ITC Tournament for an amount not to exceed $30,409.50 from February 20 (setup starts) - March 4, 2013. Mr. Barcinski stated staff looked at price, past performance, experience, and references. He stated based on that staff recommends Accurate Event Group. Mrs. Gray asked inquired about the issue with the low bidder. Mr. Barcinski stated there were numerous issues many relating to uniforms but the biggest was the staffing. Mr. Barcinski stated in the middle of the event they were interviewing people on -site putting them in a uniform and on the job with no training. In addition, Mr. Barcinski stated there were issues with people not checking security badges and some people getting into secured sites that should not have gotten there. Mr. Frankel moved to approve the bid award to Accurate Event Group {second low bidder) to provide private security services for the ITC Tournament in the amount of $30,409.50, seconded by Ms. Morrison. Upon roll call the Commission voted as follows: Ms. Morrison — Yes; Mr. Jacquet — Yes; Mr. Frankel — Yes; Mrs. Gray — Yes; Mayor Carney — Yes. Said motion passed with a 5 to 0 vote. 10.F. AGREEMENT /CHRIS EVERT CHARITIES, INC.: Consider approval of a proposed Agreement with Chris Evert Charities, Inc. for the Annual Chris Evert Pro - Celebrity Tennis Classic. 16 02/05/13 Robert A. Barcinski, Assistant City Manager, stated this item is a request for the Commission to approve a five (5) year agreement with Chris Evert Charities, Inc. for the Annual Chris Evert Pro- Celebrity Tennis Classic. Mr. Barcinski stated this was a three (3) year contract and expired this year and reiterated that the proposal is for five (5) years. He stated the pricing changes year -to -year and they will continue to donate 50% of the City fee payment to the Drug Abuse Foundation of Palm Beach County, Inc. Staff recommends approval of this agreement. Ms. Morrison asked why the City would consider five (5) years versus three (3). Mr. Barcinski stated the event producers prefer five (5) years and it gives the event producer the certainty that they are going to be here for that period of time and it helps them with sponsorships. He feels three (3) years is too short; one (1) year is too short because there is no guarantee; and, any more than five (5) years is too much. Mr. Frankel concurs with comments expressed by Mr. Barcinski and stated he supports the five (5) years. Mr. Jacquet concurs with both Commissioner Frankel and Commissioner Morrison. Mrs. Gray asked if the first contract was for three (3) years. Mr. Barcinski stated originally the first couple of contracts were for one year, two year, and then a three year. She stated the City is getting ready to have a strategic plan done as far as Delray Beach being declared as a "sports destination ". Mrs. Gray stated she supports three (3) years but is not sure about five (5) years being that the City is getting ready to go through a strategic planning. Mr. Jacquet asked if it would be a problem if the City were to push this agreement back a month or two to allow the session that the City is going to have with the Sports Commission. A representative came forward and stated it will not be a problem. Mayor Carney stated he prefers five (5) year contracts because it allows event holders to gain better sponsorship. He stated sponsors view these things as investing and regardless of what the Commission decides to do in the strategic plan he feels the Chris Evert Event is an important part of what the City does at the Tennis Center. Mayor Carney stated he does not see why waiting makes any sense at all only because it is not going to change whether or not the Commission thinks they should come to the City or not for this particular weekend when they hold the event. Mr. Jacquet stated he agrees with Mayor Carney but feels it would not hurt to wait two months. Mr. Frankel stated he has heard nothing but positive things said about this group, the monies they raise for charity, the people they bring to the city, and the economic impact. 17 02/05/13 Mrs. Gray stated the City has had other contracts that have come before them and the Commission has asked for them to wait (i.e. Elev8). Ms. Morrison suggested that everyone come to a compromise and put a clause in the contract that the City can terminate after three years if things change. For the record, Mr. Frankel stated the Sports Commission does contribute to this organization. Mayor Carney stated governmental contracts should be five (5) years with a provision termination that after three (3) years based on performance or whatever reason. He stated we are also going to need some kind of force measure provision in the event that we do some work with the tennis center and if we decide to other kinds of things where they cannot come that the City will not be held liable for that kind of change if the City had to make it. Mr. Carney stated he does not want to be tied to an event if the Commission decides to do something different with the tennis facility. The City Attorney stated staff can put a provision in the agreement that provides that if the City decides to demolish the tennis center that the City has the right to terminate the agreement without cause. The City Attorney asked the Commission if they want to give direction to staff to the changes they want made and that they will approve it with those changes or do they want staff to bring the contract back to staff with those changes and they approve it at a future meeting. Mr. Jacquet moved to approve the Agreement with Chris Evert Charities, Inc. for the Annual Chris Evert Pro - Celebrity Tennis Classic, seconded by Mr. Frankel. At this point, Mr. Jacquet stated he would like to withdraw his first motion. Sharon Painter, Christ Evert Charities and JCD Sports Group, stated they have to be assured that they can have the event this year and noted when they get a title sponsor it is for 3 -5 years. Mr. Jacquet moved to take no action, seconded by Mrs. Gray. Upon roll call the Commission voted as follows: Mr. Jacquet — Yes; Mr. Frankel — No; Mrs. Gray — Yes; Mayor Carney — No; Ms. Morrison —Yes. Said motion passed with a 3 to 2 vote, Commissioner Frankel and Mayor Carney dissenting. 10.G. SPECIAL EVENT REQUEST FOR DELRAY BEACH FIREFIGHTERS' AND PARAMEDICS BENEVOLENT: 5K WALKIRUN: Consider approval of a Special Event Permit for the Delray Beach Firefighters' and Paramedics Benevolent 5K Walk/Run to be held on Saturday, May 18, 2013 from 5:00 a.m. until approximately 9:00 a.m.; approve a temporary use permit per LDR Section 2.4.6(F) for the use of Anchor Park and the City right -of- -way along Ocean Boulevard from Casuarina to George Bush Boulevard, to waive parking meter fees in Anchor Park 18 02/05/13 and Sandoway lots, and to authorize staff assistance for providing traffic control, barricading, signage, trash pickup and removal and set up and use of half of the small stage. The estimated cost the event, which the sponsor is responsible for, is $1,950.00. Robert A. Barcinski, Assistant City Manager, stated this is a new event from the Firefighters' and Paramedics Benevolent 5K Run/Walk to be held on Saturday, May 18, 2013 from 5:00 a.m. to 7:00 a.m. Mr. Barcinski stated they are requesting waivers of the parking lot fees during that time and this is a fundraiser for the Eric Patric family. Mr. Barcinski stated the estimated overtime costs for the event is approximately $1,475, plus a 5% administrative fee of $75, stage rental is $2 65, barricades rental $100 and trash boxes $35, for a total of $1,950. Per the Special Event Policies and Procedures, the event producer is required to pay 100% of all City costs. Staff recommends approval. Mr. Frankel moved to approve Special Event request for Delray Beach Firefighter's and Paramedics Benevolent, seconded by Ms. Morrison. Upon roll call the Commission voted as follows: Mr. Frankel — Yes; Mrs. Gray — Yes; Mayor Carney — Yes; Ms. Morrison — Yes; Mr. Jacquet — Yes. Said motion passed with a 5 to 0 vote. 10.H. REJECTION OF BID PROTEST/ AREA 12A - PHASE 1 RECLAIMED WATER SYSTEM.: Consider rejecting a bid protest from the second lowest bidder, Ric -Man Construction, Inc. on the Area 12A -Phase 1 Reclaimed Water System project. Victor Majtenyi, Interim Director of Public Utilities, stated staff advertised the bid for the Area 12 Reclaimed Water System Project which encompasses the area from Atlantic Avenue south to Casuarina Road inclusive of Gleason Street east to A -1 -A. Mr. Majtenyi stated at the City's bid opening on January 15, 2013 staff noticed that the low bidder's bid bond was missing some information. However, Mr. Majtenyi stated the surety signed the bid bond form and attached the Power of Attorney form. He stated at that time staff agreed to take a look at that and consult with the Attorney. Mr. Majtenyi stated immediately following the bid opening staff received a bid protest from the second bidder stating that they felt that the low bidder had an unfair advantage stating that they considered the bid bond invalid because it was unenforceable so they had the advantage of bidding and then withdrawing if they did not want to. He stated they did execute everything except for on the top paragraph they did not put the actual amount but all the information in the bid said that it will be 5 %. Mr. Majtenyi stated they viewed this as a minor scrivener's error. Staff requests that the City Commission acknowledge that this is a scrivener's error and reject the bid protect and award to the low bid which is Lanzo Construction. The City Attorney stated under bid protest procedures the protest can only be considered to have merit if it can be proven or lack of action by the City gave a bidder an unfair competitive advantage. The City did respond to the bid protest within the required amount of time and the City's response was that we do not feel that the bid protest gave Lanzo Construction, Co. Florida unfair competitive advantage. The City Attorney stated in the City's bid documents there is language that the Commission has the right to waive any and all informalities and/or irregularities if they consider it in their 19 02/05/13 best judgment. Furthermore, the City Attorney stated in the City's bid documents there is language that the Commission has the right to waive any and all informalities and/or irregularities if they consider it in their best judgment. He stated in accordance with the bid protest procedures the protestor may appear at the Commission meeting and state the bid protest if the Commission votes to deny the bid protest. The City Attorney stated if the Commission votes to deny the bid protest then at the second part of this the Commission would have before them the bid award to Lanzo Construction, Co. The City Attorney stated at that time he would ask the Commission to waive the portion where they failed to put in language on the bid bond form. Doug Roberts, Partner in the Law Firm of Sterns, Roberts,_Guttentag, and Zelmer, LLC and Counsel representing Ric -Man Construction, Inc., 805 East Hillsboro Boulevard, Deerfield Beach, FL 33441, stated the bid opening was on January 15, 2013 and the protest was submitted on January 18, 2013 he received a response from the City Attorney on January 29, 2013. Mr. Roberts stated the basis for their protest is the lack of responsiveness of Lanzo's bid. He stated the form of the bid bond is a form that is dictated and required to be used by bidders when they submit their bid package. The City Attorney stated he looked at most of the cases that Mr. Roberts provided and several of the cases deal with the U.S. Government which is Federal Court Claims which is completely different than what the City is dealing with; another case deals with DOT which is the APA Administration Procedures Act which is not us. The City Attorney stated the City of Delray Beach is under "home rule" and we put in guidelines that say this is what we can waive or we cannot waive. The City Attorney stated in the City's bid documents we provide that we can waive any and all informalities and/or irregularities in the bid if the Commission deems it to be in the best interest of the City. The City Attorney stated the Commission is not here to try to go back to Lanzo and say to them they need to fill in this form because he would asking the Commission to waive that requirement where they failed to fill in that form amount. The City Attorney stated if the Commission were to award it to Lanzo tonight and in- between when the Commission decides to award it to them and before they execute the contract if they walk away; then that is when the City would use a bid bond. However, the City Atttorney stated once Lanzo executes the contract then we have a contract with Lanzo Construction and then we would have certain other remedies if they failed to go forward on that contract. The City Attorney stated procedurally that is the way the Commission would be going if they decide to reject the bid protest. Mr. Roberts stated the City can put in its bid documents that it can waive irregularities but there is a limit that is decided by case law that says you cannot waive material ones. He stated a City can waive irregularities if they deem it is in their best interest; the exception would swallow the rule and there would not be any limitation whatsoever on material deviation from bid documents so long as a public entity thought they were in the public entities best interest. Mr. Roberts stated there is also the interest of competitive fair bidding for public projects. He stated the issue is that at the time the bid was submitted was it responsive or not; was it an irregularity; was it material; did 20 02/05/13 they gain an unfair advantage. Mr. Roberts stated by having that option which no one else had and the fact that they choose to go forward does not take away unfair advantage they gained by having the option to say "okay you are going to award it to us; well we decided we don't want to." Mr. Roberts stated that is an unfair advantage and that is what happened here. The City Attorney stated the City of Delray Beach does not require actual bid bonds; we just accept the form. The City Attorney stated his argument would be that both parties knew that it would be 5% and therefore if the City had to enforce the bid bond form they would seek to enforce it. The City Attorney stated he understands the argument that Mr. Roberts is making; however, he is going under home rule that we have the right to stay in our requirements what we can waive or not waive. He stated if the City were to put language in there that we can only waive provisions that are not deemed material by the Commission then staff would have to look at. Ms. Morrison inquired about the amount of this contract. Mayor Carney stated the contract is $1,538,312 and the bid award is for $1,470,000. Mr. Majtenyi stated the difference between the first and second bidder is approximately $68,000 and noted that there is also a grant riding on this from South Florida Water Management District in the amount of $170,000. Mrs. Gray stated she believes in "home rule" and expressed concern about the $68,000 and asked what type of procedure the City used to determine who actually won the bid. Mr. Majtenyi stated both contracts have been pre - qualified through the pre - qualification process. Mrs. Gray asked if there is anything in the City's documents that state we have to award to the lowest bidder. The City Attorney stated we have to award to the lowest responsive responsible bidder. The City Attorney stated if the Commission is not inclined to waive the missing number in the bid bond then he recommends that the Commission approve the bid protest to Ric -Man and give Lanzo a short period of time if they wanted to file a bid protest and come before the Commission as well. The City Attorney stated if the Commission denies the bid protest procedurally there is nothing that prevents the Commission from moving forward with awarding the bid to Lanzo Construction; however, in that motion that the Commission would use to award it to them they would also need to waive the aspect that they failed to put in the number on the bid bond. Mrs. Gray stated supports the bid protest. Mr. Frankel stated he heard tonight's testimony, read the protest dated January 18, 2013, read the response from the City dated January 29, 2012 and has also heard the information from the City Attorney; and, based on all the information he has heard, read and reviewed he agrees with the City's recommendation of rejecting the bid protest. 21 02/05/13 Mr. Jacquet stated regardless of what is left out the decision rests on the Commission on what is best for the City. He expressed concern with the way that government does business with bids. Mr. Jacquet stated contracts should go out to bid Mr. Carney stated this particular bid form as an ascertainable standard of 5% and was actually signed by the representative of Liberty Mutual. He stated the ability for Liberty Mutual to not pay that 5% if called upon could be remote; had it been signed by an applicant that would be different. Mr. Carney stated holding that hat on the fact that it was not filled out where you do have an ascertainable standard he feels the City is well within its rights to accept this bid. Mrs. Gray inquired about the timeframe so that the City does not lose the funding ($170,000 grant). Mr. Majtenyi stated the project must be completed by August 31St. Mrs. Gray stated she does not want to delay this and by sending it out for re -bid everyone knows the other person is bidding on. Mrs. Gray stated due to the fact that the City has "home rule" she supports awarding this to Lanzo Construction Co. the lowest bidder. Mr. Frankel moved to approve the bid protest, seconded by Ms. Morrison. Upon roll call the Commission voted as follows: Mrs. Gray — No; Mayor Carney — No; Ms. Morrison — No; Mr. Jacquet — No; Mr. Frankel — No. Said motion to approve the bid protest was DENIED with a 5 to 0 vote. 10.1. BID AWARD TO LANZO CONSTRUCTION, CO., FLORIDA: Consider approval of a bid award to Lanzo Construction, Co., Florida in the amount of $1,470,000.00 for construction of the Area 12A -Phase 1 Reclaimed Water System project. Funding is available from multiple accounts. Mr. Frankel moved to award the bid to Lanzo Construction, Co. with the caveat that the Commission is waiving the fact that they failed to write in the exact amount on the bid bond form, seconded by Ms. Morrison. Upon roll call the Commission voted as follows: Mayor Carney — Yes; Ms. Morrison — Yes; Mr. Jacquet — No; Mr. Frankel — Yes; Mrs. Gray — Yes. Said motion passed with a 4 to 1 vote, Commissioner Jacquet dissenting. 10.I. PROPOSALIEASTMAN AGGREGATE ENTERPRISES, LLC.: Consider approval of a Proposal with Eastman Aggregate Enterprises, LLC. in the amount not to exceed $138,666.00 for the Hurricane Sandy Mitigation project. Funds for this item will be available in the Beach Restoration Fund account number 332- 4164 -572- 31.30 after a budget transfer is made. Paul Dorling, AICP, Director of Planning and Zoning, stated this item is authorization for Eastman Aggregate Enterprises, LLC for Hurricane Sandy sand dune repair in the amount not to exceed $138,666.00. Mr. Dorling stated this is to place 2,500 cubic yards of sand on approximately 750 lineal feet at the north end of the beach. He stated this material is to be obtained from an approved upland source known as the 22 02/05/13 "Stewart Mine" located in Fort Pierce. Mr. Dorling stated if the City approves the contract to Eastman Aggregate Enterprises, LLC has committed to completing the project by permit expiration date of February 28, 2013. He stated the City received a permit from DEP that expires on February 28, 2013 because of the turtle season issues. Mr. Dorling stated staff received good news from Bill Hager's office on Thursday about the potential to use the dredge source. He stated the commitment was for DEP to modify that permit and staff does have an Army Corp permit as well. Mr. Dorling expressed concern that the modifications by DEP would not negatively affect the Army Corp permit and requires its modification because that is a lengthy process and might not be done in the timeframes. He stated the other issue relates to the biological opinion that staff has and noted that after February 28h with the beginning of turtle season that limits the ability for the City to put up sand in the fill area only and it would require modification of that biological opinion. Mr. Dorling recommends that the Commission approve upland source at this time and not issue a "Notice of Intent" to proceed with it until we exhaust our options on the burrow area source. Mayor Carney stated if the dredge comes in the first week in March are we going to be able to get their job done prior to turtle season. Mr. Dorling stated there are specific requirements that we are required to do from a turtle aspect staff has to have somebody out there watching the dredge so that there is hourly monitoring. He stated that process is in place but the issue is that the biological order from the U.S. Fish & Wildlife allows that to be done for that 1.9 mile area with these caveats and conditions. Brief discussion between Mayor Carney and Mr. Dorling followed. Mayor Carney stated we need to get this process started and asked what the chances of use getting to use this additional debt for the northern part of the beach and not have to delay it to after October 15t. Mr. Dorling stated this would up to the U.S. Fish & Wildlife and they may have some issues with stockpiling it until October 1St because that impacts the nesting ability as well. The City Attorney clarified that Mr. Dorling would like this approved, however, he would like a caveat placed on the approval where it would be up to staff to issue a Notice to Proceed. Mr. Frankel moved to approve subject to Mr. Dorling issuing a Notice to Proceed if he deems it is necessary and the City cannot get the sand from the borrow area, seconded Mrs. Gray. Upon roll call the Commission voted as follows: Ms. Morrison — Yes; Mr. Jacquet Yes; Mr. Frankel — Yes; Mrs. Gray — Yes; Mayor Carney — Yes. Said motion passed with a 5 to 0 vote. 10.J. MODIFICATION TO THE AGREEMENT/DR. JOHN FLETEMEYER: Approval of a modification to the Agreement with Dr. John Fletemeyer for Sea Turtle Monitoring through October 31, 2014 to include additional tasks and costs in the amount of $38,750.00. Funding is available from 332- 4164 -5172- 3490 (Beach Restoration Fund: Other Contractual Service). 23 02/05/13 Paul Dorling, AICP, Director of Planning and Zoning, stated this item is to authorize an amendment to modify the last two years of a three year agreement with Dr. Fletemeyer for sea turtle monitoring through October 31, 2014 and adds $12,600.00 in year 2013 and $14,400.00 in years 2014 to the existing yearly contract amount of $38,750.00. Mr. Dorling stated when the original contract was executed it was for the three years at $38,750.00 under the assumption that the increased task associated with the upcoming fill project would be similar to those of past projects. He stated in recent coordination meetings the full extent of additional reporting tasks from the U.S. Fish & Wildlife service have come under discussion and it includes extensive escarpment reporting, increased lighting survey reporting, and additional reproductive success reporting for the three turtle species in excess of usual fill events. Mr. Dorling stated the contractor has asked for some additional monies to cover those additional tasks. Mr. Frankel moved to approve the modification to the Agreement with Dr. John Fletemeyer for Sea Turtle Monitoring through October 31, 2014, seconded by Ms. Morrison. Upon roll call the Commission voted as follows: Mr. Jacquet — Yes; Mr. Frankel — Yes; Mrs. Gray -- Yes; Mayor Carney — Yes; Ms. Morrison Yes. Said motion passed with a 5 to 0 vote. 13. COMMENTS AND INQUIRIES ON NON - AGENDA ITEMS. 13.A. City Manager Douglas E. Smith, Interim City Manager, stated he received a telephone call today from Representative Lois Frankel's office asking about any Federal priority issues the City of Delray Beach has. Mr. Smith stated he was able to discuss with them the beach issue and the sober house issue. He stated the City Attorney's office has some information they have put together on the Federal level that staff will be providing to them as well as information on the beach issue. In addition, Mr. Smith stated staff will continue to work on getting the Federal lobbying services RFP out. 13.B. City Attorney The City Attorney had no comments or inquiries on non - agenda items. 13.C. City Commission 13.C.1. Mr. Jacquet Mr. Jacquet asked staff to look into the ATV issue. Secondly, he stated there is a Committee Against Gun Violence started by Debbie Albeck from Boca Raton and they are having a meeting on Thursday, February 7, 2013 at 7:00 p.m. at Coco Wood Lakes (near the intersection of Atlantic Avenue and Jog Road). In addition, Mr. Jacquet stated there is another group of mothers regarding gun violence who have a group and they have a Town Hall meeting on Sunday, February 10, 24 02/05/13 2013 at St. Paul's Episcopal Church. Mr. Jacquet stated he put those two groups in touch with each other because they had no idea the other group existed. Mr. Jacquet stated he spoke to Virginia Snyder regarding a potential park to be named for her. Mr. Jacquet stated the Sun - Sentinel News mis- quoted him regarding a comment about the beach. For the record, Mr. Jacquet clarified that the concern we have is the very valuable beach properties that we have and we do not want to lose them. Mr. Jacquet clarified that he was not talking about the beach property owners but rather the private beach properties. Mr. Jacquet stated he spent a lot of time with the Police Department recently and noted that he goes to their crime meetings and drives around the city on a regular basis and commended the following officers who are doing remarkable work: Officer VanNess, Officer Brown, Detective Gary Ferreri, and Sergeant Weatherspoon. Mr. Jacquet stated these individuals do remarkable work and he is very proud of the Police Department. Lastly, Mr. Jacquet stated there is concern in the community about cat colonies starting to spread and stray animals and asked if this is going to be addressed. 13.C.2. Ms. Morrison Ms. Morrison stated Officer VanNess is amazing and commended the entire Police Department. Secondly, Ms. Morrison stated she attended the Employee Service Awards last week and she was amazed to see how many long -term employees the City has. Ms. Morrison stated on last year's financial report the City was over $1 million in permits and noted we are getting very busy in the permitting department. She stated she would like to make sure that we are following up on the Planning and Zoning Best Practices that were submitted by the Six Pillars so the City can streamline some of the practices and procedures to let things go a little smoother. Ms. Morrison asked staff to look into this. Ms. Morrison stated the Commission never discusses the City's financial statements at these meetings and the only time City residents hear about financials is in the fall when the City informs them that we might have to raise their taxes. She stated this is not fair to the residents who pay the taxes and asked staff to provide a one page update on the 5th or 6th month into the year on how the City's accounts are doing. Lastly, Ms. Morrison thanked Mr. Smith for everything he is doing. 25 02/05/13 There being no further business, Mayor Carney declared the meeting adjourned at 9:10 p.m. City Clerk MAYOR The undersigned is the City Clerk of the City of Delray Beach, Florida, and the information provided herein is the Minutes of the Regular City Commission Meeting held on February 5, 2013, which Minutes were formally approved and adopted by the City Commission on March 5, 2013. ��� - '�) , ��) 'L'-� 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. 26 02/05/13 IN THE CITY COMMISSION CHAMBERS OF THE CITY OF DELRAY BEACH, FLORIDA ORDER OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACHH, FLORIDA WAIVER REQUEST. FOR THE MCDONALDIS RESTAURANT LOCATED AT 14529: MILITARY TRAIL 2013. 1,. These waiver requests came before the City Commission on February 5, 2 The Applicant and City Staff presented documentary evidence and testimony to the City. Commission pertaining, to the waiver request fVr Mcponald's Restaurant located at 1452.9 Military Trail. All of the evidence is a part of the, record in this case. Required fiodings are made in accordance with Subsection l L WAIVERS- Pursuant to LDR Section 2.4.7(B)(5), prior to granting a waiver; the approving body shall make a' finding ''that the granting of the waiver:. (a) Shall not. adversely: affect the; neighboring area; (b) Shall not significantly diminish the provision of public facilities; (c) Shull not create an unsafe situation;: and; (d) Does not result in the grant of a special: privilege in that the same waiver would be granted. under similar circumstances on other property for another applicant or owner. A. Waiver to LDR Section 4.6.8L](3) Pursuant to. LDR Section 4.6.8(A)(3), parking lots in.Commercial and Industrial areas: shall have. a maxlmum.il,Iumination of 12 foot candles. The appl[Cant is asking for a waiver to allow lighting in the parking lot to have a; maximum illumination of 47.5 foot candles: Should the waiver to Section 4.6.8(A) (3) be; granted? Yes ✓ No February 5, 2013 City Commission Meeting; Item 10.A. Pursuant to LDR Section 4,6.8(B)(3 )(b s a 0 M x1mu . mo, pillagi., fa.. f'O 25 fob.t candles is allowed:: The 0006 is asking for a waiver "to alloW spillage of 40.2 ow. a nt g 0 foot cand(es. Should .the waiver to Section 4.6.8(13)(3)(b) be granted? Yes No 3, The City. GommlssiQq has applied. Comprehensive Plan and LDR requirements . in ekistence at the time the. ON: iriall deVelopment application W.As submitted: and finds that its determinations: set foTtii in this Ord Qr are consistent with the q.. Comprehensive . Plart. 4. The City Commission: find's there is ample. and competent tent substantial evidence to support its findings . in the record submitted and adopts the facts contained in the record including but not limited td. the staff reports; testimony of experts and other competent witnesses supporting thesa findings.. 5, Based on the entire record before' it., the City Gorn.milssion approves V . denies . . the waiver request: G. Based on the entire record before it, the, City Commission hereby adopts this Order this 5th day of February 2013, by a vote. of 5, in favor and 0: QppQsed. ATTEST: Thomas F. Carney jr., Mayor Chevelle Nub-in., City Clerk 2 February 5, 2013 City Commission Meeting; Item 10.A. IN THE CITY COMMISSION CHAMBERS OF THE CITY OF D LRAY 8EACH, FLORIDA ORDER OF THE CITY COMMISSION OF THE'CITY OF DELRAY BEACH, FLORIDA WAIVER REQUEST REGARDING AN INCREASE IN SIZE OF TEMPORARY, SPECIAL. EVENT NOWROADWAY BANNERS FOR GARLIC PEST 1:. This waiver request to allow an increase in size of temporary, special event non - roadway banners to exceed 20 sq. ft, in area came before. the City Commission on. February 5, 2.01 3. 2_ The Applicant and City staff presented documentary ' evidence and testimony to the City Commission pertaining to the waiver request to allowspecial event non- roadway banners: to exceed 20 sq.. ft'. in area. All of the evidence is a part of the.. record in this case;. Required findings are made.in accordance with Subsection is l: WAIVER: Pursuant, to L R Section 2,4.7(13)(5), prior to granting a. waiver,. the approving body shall make a finding that the granting of the waiver,' (a) Shall .not adversely: affect the neighboring: area:; (b): Shall not, significantly diminish the provision of public facilities; (c) Shall not create an unsafe situation; and, (d') Does not result in the grant of a special privilege in that the same waiver would be grantee under similar Circurristances on other property for another applicant or owner. A. Waiver Request: A. waiver to LDR Section 4.6.7(F)(3)(f)(4),. to allow an increase in size of temporary :special event non. - roadway banners from the tvventy (20)' square. foot area size maximum provided in the LDRs to approximatelytwenty -four (24) square foot. area size. Does the waiver request to increase the special event non - roadway bariner size meet:all the. requirements of 2;4.7(B)(5)? Yes ✓ No February 5, 2013 City Commission Meeting; Item 10. B. 3:, The City CornHission: hag applied the Comprehensive Plan -and LDR requirethents in. existence at the time the original development application was submitted and fl'nds, that its d0tefrnlinatl=3 sot forth in thi8 Order- are consistent Wit . h the Comprehensive .Plan:, 4, The City: Cotmissloh finds there is amp'le . and competent substantial 61 evidence to support its findings in the record submitted; and adopts. the facts contained in thefec'Ord. including but not:jimited'to the staff reborts,,testiftny of experts ,and 'other competent witnesses supporting these . findings. 5.' Based on, the. entire record before it, the City Commission approves denies the W.aiver. re I quests� to. LDR. section 4-:6,7(F)(3)( N4.),. & Based on the entire record before it, Cit y Commission hereby adopts .. this Order this 5th day: of February, 2013,.. by a Vote of 5 ih fav6roand 0 opposed. 'Thorhas F. Carney, Jr., Maypr ATTEST: ChavO110 Nubin, City. Clerk R February 5, 2013 City Commission Meeting; Item 10.B.