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06-04-13 Regular Meeting
City of Delray Beach Regular Commission Meeting Tuesday, Tune 4, 2013 Regular Meeting 6:00 p.m. Public Hearings 7:00 p.m. Commission Chambers Delray Beach City Hall RULES FOR PUBLIC PARTICIPATION 1. PUBLIC COMMENT: 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, presiding officer or a consensus of the City Commission has discretion to adjust the amount of time allocated. Public comment shall be allowed as follows: A. Comments and Inquiries on Non - Agenda and Agenda Items (excluding public hearing or quasi-judicial hearing 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. B. Public Hearings /Quasi - Judicial Hearings: Any citizen is entitled to speak on items under these sections at the time these items are heard by the Commission. 2. SIGN IN SHEET: Prior to the start of the Commission Meeting, individuals wishing to address the Commission 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. 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. 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 the City Manager at 243 -7010, 24 hours prior to the event in order for the City to accommodate your request. Adaptive listening devices are available for meetings in the Commission Chambers. 100 NW 1st Avenue • Delray Beach, Florida 33444 Phone: (561) 243 -7000 • Fax: (561) 243 -3774 www.mvdeiraybeach.com 1. ROLL CALL. 2. INVOCATION. 3. PLEDGE OF ALLEGIANCE TO THE FLAG. 4. APPROVAL OF MINUTES: A. May 7, 2013 — Regular Meeting B. May 21, 2013 — Regular Meeting 5. PRESENTATIONS: A. Representative Bill Hager —Update on Legislative Session B. Representative Bobby Powell, Jr. — Update on Legislative Session (Addendum) 6. COMMENTS AND INQUIRIES ON AGENDA AND NON - AGENDA ITEMS FROM THE PUBLIC IMMEDIATELY FOLLOWING PRESENTATIONS: A. City Manager's response to prior public comments and inquiries B. From the Public 7. AGENDA APPROVAL. 8. CONSENT AGENDA: City Manager Recommends Approval. A. FINAL SUBDIVISION PLAT APPROVAL /SOFA DELRAY ONE: Approve a proposed multiple family residential development containing 117 rental units being platted as SOFA Delray One located on the east side of S.E. 3rd Avenue between S.E. 1" Street and S.E. 2nd Street. B. FINAL SUBDIVISION PLAT APPROVAL /SOFA DELRAY TWO: Approve a proposed multiple family residential development containing 55 rental units being platted as SOFA Delray Two located on the west side of S.E. 2nd Avenue between S.E. 1" Street and S.E. 2nd Street. C. HOLD HARMLESS AGREEMENT /5 S.E. 2ND AVENUE: Approve a Hold Harmless Agreement with BOEJ, LLC to allow for installation of a dumpster with steel posts supporting gates and a fence screen within the public utility easement for the property located at 5 S.E. 2nd Avenue. 06/04/2013 -2- D. SUPPLEMENTAL AGREEMENT NO. 1 TO THE LOCAL AGENCY PROGRAM (LAP) / FLORIDA DEPARTMENT OF TRANSPORTATION F( DOT). Approve Supplemental Agreement No. 1 to the Local Agency Program (LAP) with Florida Department of Transportation (FDOT) for the construction of the Federal Highway Beautification Project. E. AMENDMENT NO. 1 TO THE ALTERNATIVE WATER SUPPLY (AWS GRANT AGREEMENT /SOUTH FLORIDA WATER MANAGEMENT DISTRICT (SFWMD ). Approve Amendment No. 1 to the South Florida Water Management District (SFWMD) Alternative Water Supply (AWS) Grant Agreement for the Area 12A -Phase 1 Reclaimed Water System Expansion Project. F. CONTRACT ADDITION (CHANGE ORDER NO. 1) /SEALAND CONTRACTORS, CORPORATION: Approve Contract Addition (C.O. No. 1) to Sealand Contractors, Corporation in the amount of $96,816.50 for the Federal Highway Beautification Project. Funding is available from 334 - 3162 - 541 -68.52 (General Construction Fund: Other Improvement /Federal Highway Beautification Project). AMENDMENT NO. 1 TO THE CONSTRUCTION ENGINEERING AND INSPECTION SERVICES (CEI) AGREEMENT /R.J. BEHAR & COMPANY, INC.: Approve Amendment No. 1 to the Construction Engineering and Inspection Services (CEI) Agreement in the amount of $16,050.00 with R.J. Behar & Company, Inc. for the Federal Highway Beautification Project. Funding is available from 334 - 3162 - 541 -68.52 (General Construction Fund: Other Improvement /Federal Highway Beautification). G. CONTRACT CLOSEOUT (CHANGE ORDER NO. 2 /FINAL) /FOSTER MARINE CONTRACTORS INC.: Approve Contract Closeout (C.O. No. 2 /Final) in the amount of a 54,546.00 decrease and final payment in the amount of $40,432.25 to Foster Marine Contractors Inc. for completion of the Drainage Swales FY12 - Lake Ida Project. Funding is available from 448 - 5461 - 538 -46.43 (Storm Water Utility Fund: Repair & Maintenance Service /Drainage Swales). H. CORRECTION TO CONTRACT AWARD /MANCIL'S TRACTOR SERVICE. INC.: Approve a corrected contract award in the amount of $976,767.82 with Mancil's Tractor Service, Inc., for Construction of the S.W. 2nd Street Beautification Project. Funding is available from 334 - 3162 - 541 -65.95 (General Construction Fund: Capital Outlay /S.W. 2nd Street Beautification) and 448 - 5461 - 538 -65.95 (Storm Water Utility Fund: Other Improvements /S.W. 2nd Street Beautification). I. AMENDMENT TO EASEMENT, USE, MAINTENANCE AND DECLARATION AGREEMENT /120 S.E. 41`11 STREET: Approve Amendment to Easement, Use, Maintenance and Declaration Agreement where the City is not a party, but the City must give its approval for the amendment for the property located at 120 S.E. 4ffi Street. 06/04/2013 -3- J. STATE AND LOCAL TASK FORCE AGREEMENT/ DEPARTMENT OF JUSTICE DRUG ENFORCEMENT ADMINISTRATION (DEA) Approve a State and Local Task Force Agreement with the Department of Justice Drug Enforcement Administration (DEA) to provide for one officer from the Police Department to join the DEA Task Force to disrupt illicit drug traffic. K. RESOLUTION NO. 31 -13: Approve Resolution No. 31 -13 assessing costs for abatement action required to remove nuisances on 11 properties throughout the City of Delray Beach. L. REVIEW OF APPEALABLE LAND DEVELOPMENT BOARD ACTIONS: Accept the actions and decisions made by the Land Development Boards for the period May 20, 2013 through May 31, 2013. M. AWARD OF BIDS AND CONTRACTS: 1. Bid award to Complete Property Services of South Florida, Inc., in the amount of $29,180.00 for landscape maintenance at Atlantic Avenue Gateway Feature. Funding is available from 119- 4144 - 572 -46.40 (Beautification Trust Fund: Repair & Maintenance Services /Beautification Maintenance). 9. REGULAR AGENDA: A. CONDITIONAL USE REQUESTS /UPTOWN DELRAY: Consider conditional use requests to Land Development Regulations (LDR) Section 4.3.40, "Increases to Height Regulations ", to allow an increase in the building height in excess of 48 feet (60 feet proposed)and Section 4.4.13(1), "Increase in Density ", to increase the density in excess of 30 residential units per acre (69.52 units per acre proposed) for a proposed mixed -use development that includes the demolition of the existing commercial building and removal of the existing parking lot and construction of 146 residential apartment units and 7,854 square feet of retail /office space in a 6 -story building and 6- level structured parking garage for Uptown Delray, located on the north side of S.E. 2nd Street between S.E. 4`'' Avenue and S.E. 5`'' Avenue. (Quasi-judicial Hearing) B. CONDITIONAL USE REQUEST /CRISTO PARR TODAS LAS NACIONES: Consider approval of a conditional use request to allow the establishment of a church for Cristo Para Todas Las Naciones (Christ for all Nations) within the Congress Square shopping center, located at 2280 West Atlantic Avenue, Suite# 2206. (Quasi-judicial Hearing) C. INITIATION OF AN AMENDMENT TO LAND DEVELOPMENT REGULATIONS (LDR) Consider approval of a city - initiated amendment to the Land Development Regulations that will prohibit offices uses on the ground floor of structures located along N.E. 2nd Avenue in the Pineapple Grove Neighborhood Area, unless certain conditions exist. 06/04/2013 -4- D. SPECIAL EVENT REQUEST /GIVE AWAY SCHOOL SUPPLIES: Consider approval of a special event sponsored by Double Action /Caribbean Grocery for "Give Away School Supplies," proposed to be held on July 26, 2013 from noon to 10:00 p.m.; grant a temporary use permit per LDR's Section 2.4.6(F) for the closure of S.E. Yd Avenue between S.E. 2nd Street and S.E. 3rd Street, and authorize staff support for traffic control and security, stage use and setup, City generator use, barricading, trash boxes and light tower rental; contingent upon receipt of a deposit in the amount of $300.00, a Hold Harmless Agreement and Certificate of Event Liability Insurance no later than July 11, 2013. The event sponsor will pay 100% of costs for an estimated amount of $2,470.00. E. RESOLUTION NO. 30 -13 /MID YEAR BUDGET AMENDMENT: Consider approval of Resolution No. 30 -13 amending Resolution No. 49 -12 adopted September 20, 2012, which made appropriations of sums of money for all necessary expenditures of the City of Delray Beach for the FY 2012/2013, by setting forth the anticipated revenues and expenditures for the operating funds of the City for FY 2012/2013. F. REQUEST FOR HOURLY FEE INCREASE /ALLEN NORTON & BLUE LAW FIRM: Consider a request from Allen Norton & Blue Law Firm to increase the hourly fee for the City's labor counsel from $210.00 per hour to $235.00 per hour. 10. PUBLIC HEARINGS: A. ORDINANCE NO. 10 -13: Consider an amendment to Chapter 33, "Police and Fire - Rescue Departments ", Section 33.62, "Benefit Amounts and Eligibility ", and Section 33.64, "Contributions ". 11. FIRST READINGS: A. ORDINANCE NO. 11 -13: Consider an amendment to Chapter 35, "Employee Policies and Benefits ", Section, 35.105, "Administration by Retirement Committee ", Subsection (C) "Action by Committee ", to remove the requirement that the City Commission must approve changes to the General Employees' Pension Board investment policy. If passed, a public hearing will be held on June 18, 2013. 12. COMMENTS AND INQUIRIES ON NON - AGENDA ITEMS. A. City Manager B. City Attorney C. City Commission POSTED: MAY 31, 2013 06/04/2013 -5- MAY 7, 2013 A Regular Meeting of the City Commission of the City of Delray Beach, Florida, was called to order by Mayor Cary Glickstein in the Commission Chambers at City Hall at 6:00 p.m., Tuesday, May 7, 2013. 1. Roll call showed: Present- Commissioner Shelly Petrolia Commissioner Alson Jacquet Commissioner Adam Frankel Commissioner Angeleta E. Gray Mayor Cary Glickstein Absent - None Also present were - Louie Chapman, Jr., City Manager Brian Shutt, City Attorney Chevelle D. Nubin, City Clerk 2. The opening prayer was delivered by the Rev. Canon William H. (Chip) Stokes with St. Paul's Episcopal Church. 3. The Pledge of Allegiance to the flag of the United States of America was given. 4. APPROVAL OF MINUTES: Mr. Frankel moved to approve the Minutes of the Special Workshop Meeting of March 14, 2013, seconded by Mrs. Petrolia. Upon roll call the Commission voted as follows: Mr. Jacquet — Yes; Mr. Frankel — Yes; Mrs. Gray — Yes; Mayor Glickstein — Yes; Mrs. Petrolia — Yes. Said motion passed with a 5 to 0 vote. Mrs. Petrolia noted a typographical error to the motion approving the Consent Agenda and stated the Minutes reflect that Mrs. Gray made the motion and seconded the motion. Mrs. Petrolia moved to approve the Minutes of the Regular Meeting of April 2, 2013, seconded by Mr. Frankel. Upon roll call the Commission voted as follows: Mr. Frankel — Yes; Mrs. Gray — Yes; Mayor Glickstein — Yes; Mrs. Petrolia — Yes; Mr. Jacquet — Yes. Said motion passed with a 5 to 0 vote. Mrs. Petrolia moved to approve the Minutes of the Special Workshop Meeting of April 9, 2013 — Special/Workshop Meeting, seconded by Mrs. Gray. Upon roll call the Commission voted as follows: Mrs. Gray — Yes; Mayor Glickstein — Yes; Mrs. Petrolia — Yes; Mr. Jacquet — Yes; Mr. Frankel — Yes. Said motion passed with a 5 05/07/13 to 0 vote. 5. PRESENTATIONS: 5.A. S.P.LRLT. (Service, Performance, Integrity, Responsibility, Innovation, Teamwork) Committee Quarterly Awards Presentation Kim Wynn, Agenda Coordinator, gave a brief presentation for the third quarter S.P.I.R.I.T. award winner Officer Marques Brown, Police Department. 6. Comments and Inquiries on Agenda and Non - Agenda Items from the Public Immediately Following Presentations 6.A. City Manager's response to prior public comments and inquiries. In response to Ms. Anderson's comments from the previous regular Commission meeting, the City Manager stated staff understands that there are some instances where people move chairs along the five foot pedestrian access way. The City Manager stated he believes there is an inspector out there all the time. The area is an area where people congregate and it is possible through no fault of the restaurant owners that pedestrians may have difficulty getting through at some point. He stated the City is aware of the situation and police it, and will continue to police it. The City Manager stated the City will continue to address any major violations that occur along Atlantic Avenue and monitor the annual renewal process and make sure people are not in violation of the regulations. Secondly, in response to Dr. Kirson's comments from a previous Commission meeting about an immediate five (5 %) percent raise, the City Manager stated he will not be making that recommendation at this point during the budget year. 6.B. From the Public. 6.B.1. Steve Blum, 115 Venetian Drive #C, Delray Beach, FL 33483, stated the Delray Beach Annual Citizen Survey is now available online. Mr. Blum read a brief statement into the record. Mr. Blum stated he found this report false in its conclusions, lacking in its comparisons, and almost 100% void of new information. He made reference to page 35 — civic engagement. Mr. Blum stated after reading this survey he feels the City wasted $11,200.00 and suggested that it be eliminated from the budget. 6.B.2. Carole Anderson, 1441 East Bexley Park Drive, Delray Beach, FL 33445 (speaking as the Outreach Director of S.A.F.E.), distributed a handout to the Mayor and the City Manager. Ms. Anderson thanked the City Manager for his response to her earlier concerns. She stated there is a parking meter on A -1 -A and suggested that the City consider in voting the 2010 single head coin gobbling parking meters along A -1- A with twenty (20) multi -space meters. She stated the estimated cost of conversion is $220,000. Ms. Anderson suggested that the City substitute twenty (20) instead of 210 2 05/07/13 multi -space meters with printouts that you take and put on your dashboard, not only would there be fewer ugly meters around but there would be more options for people who park as they could use either credit cards, coins, or a City parking card. Ms. Anderson stated she has been informed that these funds could be taken from the in -lieu account and that they could be funded out of future increased parking revenue. 6.B.3. Andy Katz, 220 S. Ocean Blvd., Delray Beach, FL 33483, President of the Beach Property Homeowners Association (BPOA), distributed photographs of the meters to the Commission and congratulated the new members of the Commission and wished everyone great success. Mr. Katz explained that the meters interfere with the normal use of the sidewalk. He stated people use this sidewalk because of the ocean view, the breezes, and from a safety aspect this is a long continuous sidewalk with no cross - streets, no lights to wait for, and no driveways where people are backing out. Mr. Katz stated the City collects in all of the parking areas of the City a little over $1.4 million; $1.2 million comes from the beach area. 6.B.4. Jim Smith, 1225 S. Ocean Blvd., #202, Delray Beach, FL 33483 (Chairman of S.A.F.E.), stated S.A.F.E. had a meeting with Mr. Katz, Bob the architect and Vice President of the BPOA, and Fran Marincola. Mr. Smith stated they talked with Secretary Wolfe who is the number one person at FDOT and the July meeting will be hosted by the new City Manager. Mr. Smith stated they had no objection to replacing the meters. Mr. Smith stated Joe and Nancy Schneider asked him to mention to the Commission that Green Implementation Advancement Board also supports the idea of changing out those meters and it is a safety issue and it would widen the sidewalk by two feet. 6.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), briefly discussed the City's fiscal responsibility to its taxpayers. 6.B.6. Pauline Moody, 609 S.W. 8th Avenue, Delray Beach, FL 33445, asked the City to look into why the garbage can in the front of the library was moved and not replaced. Ms. Moody stated there has been a lot of trash in front of the library that has not been picked up. She stated instead of people paying the meters she suggested that they use the parking garage on Sundays and that the City charge a fee for the garages. Ms. Moody stated all the businesses should be parking for free and the garages should be utilized by employees of these businesses. 6.B.7. Tom Carney, 828 Eastview Avenue, Delray Beach, FL 33483, expressed concern regarding the shortening of the Quasi - Judicial Hearing presentation times from twenty (20) minutes to ten (10) minutes. Mr. Carney stated this is a way a government can provide transparency to its citizens and urged the Commission to reconsider shortening the time for these presentations. 3 05/07/13 6.B.8. Neal Schiller, Attorney with Becker & Poliakoff, 3111 Stirling Road, Fort Lauderdale, FL 33456, commented on the recommendation to cancel the Request for Proposal (RFP) for Federal Lobbying services and suggested that the City re- advertise for a lobbyist to deal with the City's sober house issue. Mr. Schiller suggested that the City move forward with the RFP as it is today for general Federal representation and once the City selects a Federal lobbyist to make dealing with sober houses their number one task and try to pass legislation or pass rules to implement stricter standards for sober houses particularly in Delray Beach. Mr. Schiller stated in addition to the sober house legislation there are a number of Federal opportunities for grants and other economic development tools that the lobbyist can help the City with. 6.B.9. Christina Morrison, 2809 Florida Boulevard #207, Delray Beach, FL 33483, commented about there being over $1.5 million of expenditures on the Consent Agenda. Ms. Morrison echoed comments expressed by Mr. Carney about the ten (10) minute limit. She stated she understands that ten (10) minutes would be acceptable for many submittals but for one of the large class site plan changes ten (10) minutes would not do justice to all the nuances that go into the larger class site plans. Ms. Morrison recommends having the ten (10) minute limit for smaller site plans but keep the twenty (20) minutes for the larger class site plans because it would do a great injustice to the City to do a partial presentation of such a large project. 6.B.10. Jim Knight, 10 S.E. 1St Avenue. Delray Beach, FL 33444, commented about the article in the Sun - Sentinel today about the amount of crime more so in Delray Beach than in Boynton Beach and Boca Raton. Mr. Knight stated it is really a joint effort between the police and the citizens to help monitor this. He stated with some of the new housing it will be a way to help generate tax dollars and help pay for the additional police force as well as put additional eyes on the street. Secondly, Mr. Knight commented about the reduction in parking on Federal Highway and he urged the City to look into this. 6.B.11. Michael Weiner, Attorney with Weiner & Lynne, P.A., 10 S.E. 1St Avenue, Delray Beach, FL 33444, stated with regard to the Quasi - Judicial Hearings if the Commission is thinking of decreasing the amount of time one of the things that would be important is to make sure that staff has the reports which are 1 -2 business days before the hearing. Mr. Weiner stated if the Commission is looking for the packets to be larger and for information to be in their packets, for any applicant to respond and for the Commission to have the opportunity to read it, 1 -2 business days would not be sufficient time to respond. However, Mr. Weiner stated if these things were seven (7) days in advance then there would be an opportunity to at least address the issues in the staff report, produce the appropriate paperwork, and put it into the Commission packets before they receive them. Mr. Weiner suggested that if the Commission does decide they want a shorter period of time than twenty (20) minutes then give the opportunity to an applicant to respond to a staff report. 4 05/07/13 7. AGENDA APPROVAL. Mayor Glickstein requested that Item 8.L, Service Authorization No. 12- 04/Kimley -Horn and Associates, Inc. be moved from the Consent Agenda to the Regular Agenda as Item 9.A.A. and Item 8.J., Amendment No. 2 to the Interlocal Agreement /Community Redevelopment Amu (CRA): Funding of Construction Professional Services as Item 9.A.A. Mr. Jacquet requested that Item 8.K., Reject All Bids For Osceola Park Alleys -Phase 1 Proiect be moved from the Consent Agenda to the Regular Agenda as Item 9.A.A.A.A. Mrs. Gray requested that Item 8.N., Community Development Block Grant (CDBG): Mary Wright be moved from the Consent Agenda to the Regular Agenda as Item 9.A.A.A.A.A. and Item 8.T., Proposed Change To The Commission Rules Of Procedure be moved from the Consent Agenda to the Regular Agenda as Item 9.A.A.A.A.A.A. Mrs. Petrolia moved to approve the Agenda as amended, seconded by Mr. Frankel. Upon roll call the Commission voted as follows: Mayor Glickstein — Yes; Mrs. Petrolia — Yes; Mr. Jacquet — Yes; Mr. Frankel — Yes; Mrs. Gray — Yes. Said motion passed with a 5 to 0 vote. 8. CONSENT AGENDA: City Manager Recommends Approval. 8.A. RATIFICATION OF SOUTH CENTRAL REGIONAL WASTEWATER TREATMENT AND DISPOSAL BOARD ACTIONS: Approve and ratify the actions of the South Central Regional Wastewater Treatment and Disposal Board at their Quarterly Meeting of April 18, 2013. 8.11. FINAL SUBDIVISION PLAT APPROVAL /SOUTH COUNTY COURTHOUSE COMPLEX EXPANSION: Approve a final plat for a 3.827 acre subdivision known as South Courthouse Complex Expansion for the property located 200 West Atlantic Avenue. 8.C. RESOLUTION NO. 27 -13: ABANDONMENT OF EASEMENT: MIDTOWN DELRAY SUBDIVISION: Approve Resolution No. 27 -13 to abandon a 94.41 foot portion of a 20' wide utility easement located within the plat of Midtown Delray Subdivision. The caption of Resolution No. 27 -13 is as follows: A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, VACATING AND ABANDONING A PORTION OF A UTILITY EASEMENT DEDICATED TO THE CITY OF DELRAY BEACH BY AN EASEMENT DEED RECORDED IN 05/07/13 O.R.B. 8532, PAGE 28, AS MORE FULLY DESCRIBED IN EXHIBIT "A ". (The official copy of Resolution No. 27 -13 is on file in the City Clerk's office.) 8.1). CONTRACT CLOSEOUT (CHANGE ORDER NO. I/FINAL) /INTERCOUNTY ENGINEERING, INC.: Approve Contract Closeout (C.O. No. 1/Final) in the amount of $21,082.79 decrease and final payment in the amount of $19,390.76 to Intercounty Engineering, Inc. for completion of the Lift Station 100A Upgrade Project. Funding is available from 442 - 5178 -536 -69.29 (Water/ Sewer Renewal & Replacement Fund: Water & Sewer Trans /Storage Project/Lift Station 100A Capacity Upgrade) and 442 - 5178 -536 -64.90 (Water/ Sewer Renewal & Replacement Fund: Machinery/Equipment/Other Machinery /Equipment). 8.E. CONTRACT CLOSEOUT (CHANGE ORDER NO. 2/FINAL) /RANDOLPH & DEWDNEY CONSTRUCTION, INC.: Approve a Contract Closeout (C.O. No. 2/Final) in the amount of $19,980.77 decrease and a final payment in the amount of $74,339.75 to Randolph & Dewdney Construction, Inc. for completion of the Fire Station No. 1 Storm Hardening Project. Funding is available from 118 - 1962 - 554 -62.89 (Neighborhood Services: Capital Outlay /Fire Station #1) and 118 - 1962 -554 -64.90 (Neighborhood Services: Capital Outlay /Other Machinery/ Equipment). 8.F. DEVELOPERS AGREEMENT/ 116 N.E. 7' FH STREET: Approve a Developers Agreement with Gaetan Richards for an in -lieu of sidewalk installation along N.E. 2nd Avenue for the property located at 116 N.E. 7th Street. 8.G. RIGHT OF WAY DEED ACCEPTANCE /46 S.W. 9TH AVENUE: Accept a right -of -way deed for the west alley associated with the Community Redevelopment Agency (CRA) Parking Lot located at 46 S.W. 9th Avenue. 8.11. SERVICE AUTHORIZATION NO. 12- 02.1 /CALVIN, GIORDANO AND ASSOCIATES, INC.: Approve a Service Authorization No. 12 -02.1 with Calvin, Giordano and Associates, Inc., in the amount of $17,648.70 for additional design services for the S.E. 2nd Street — Swinton — S.E. 3rd Avenue Project. Funding is available from 334 - 3162 -541 -68.30 (General Construction Fund: Other Improvement/ S.E. 2nd Street — Swinton — S.E. 3rd Avenue). 8_I. THIS ITEM HAS BEEN MOVED TO THE REGULAR AGENDA AS ITEM 9.A.A. 8_J. THIS ITEM HAS BEEN MOVED TO THE REGULAR AGENDA AS ITEM 9.A.A.A. 8.11. SERVICE AUTHORIZATION NO. 12 -02/ WANTMAN GROUP, INC.: Approve a Service Authorization No. 12 -02 with Wantman Group, Inc., in the amount of $149,201.00 for the design of N.E. 2nd Avenue /Seacrest Beautification 6 05/07/13 Project; contingent upon approval of Amendment No. 2 to the Interlocal Agreement with the Community Redevelopment Agency (CRA) for Funding of Construction Professional Services. Funding is available from 334 - 3162 - 541.68 -78 (General Construction Fund: Other Improvement/ N.E. 2nd Avenue /Seacrest Beautification). 8.K REJECT ALL BIDS FOR OSCEOLA PARK ALLEYS- PHASE 1 PROJECT: Approval to reject all bids for the Osceola Park Alleys — Phase 1 Project, and proceed with re- advertising the project for bid. 8.L. RESOLUTION NO. 26 -13: Approve Resolution No. 26 -13; supporting a Statewide ban on texting while driving. The caption of Resolution No. 26 -13 is as follows: A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA SUPPORTING A BAN ON TEXTING WHILE DRIVING; PROVIDING AN EFFECTIVE DATE. (The official copy of Resolution No. 26 -13 is on file in the City Clerk's office.) 8.M. SUBORDINATION AGREEMENT /COMMUNITY DEVELOPMENT BLOCK GRANT (CDBG): MARY WRIGHT: Authorize and approve subordination of the City's second mortgage in the amount of $22,855.35 to allow the applicant, Mary Wright to modify her mortgage to reduce her monthly note and interest rate. 8.N. THIS ITEM HAS BEEN MOVED TO THE REGULAR AGENDA AS ITEM 9.A.A.A.A.A. 8.0. AMENDMENT NO. 1 TO THE FUNDING AGREEMENT /COMMUNITY REDEVELOPMENT AGENCY (CRA)/ECONOMIC DEVELOPMENT DIRECTOR POSITION: Approve Amendment No. 1 to the Funding Agreement with the Community Redevelopment Agency (CRA) regarding the funding of the Economic Development Director position; contingent upon approval of the Community Redevelopment Agency (CRA). 8.P. INTERLOCAL AGREEMENT/ COMMUNITY REDEVELOPMENT AGENCY (CRA): Approve an Interlocal Agreement with the Community Redevelopment Agency (CRA) to install plaque bases at The Elizabeth "Libby" Jackson Wesley Plaza located at 2 S.W. 5m Avenue. 80. CHANGE ORDER TO PURCHASE AWARD TO OTTO ENVIRONMENTAL SYSTEMS: Change order to purchase award to Otto Environmental Systems from $50,000.00 to $56,930.00 for additional hot stamped garbage carts, lids and wheels to be ordered "as needed ". Funding is available from 433- 7 05/07/13 3711 -534 -49.90 (Sanitation Fund: Other Current Charges). 8.R STATE HOMELAND SECURITY GRANT AGREEMENT: Approve an Agreement with the Florida Department of Financial Services in the amount $14,765.00 to accept the 2012 Domestic Preparedness Grant from the State Homeland Security Grant Program to sustain equipment and training for hazardous materials incidents and incidents involving weapons of mass destruction. 8_S. RESOLUTION NO. 28 -13: Approve Resolution No. 28 -13; provide authorization for the City Manager, Assistant City Manager, Director of Finance and the Assistant Director of Finance to open accounts, endorse checks, withdraw or transfer funds on behalf of the City of Delray Beach at any bank or financial institution. The official copy of Resolution No. 28 -13 is on file in the City Clerk's office. 8.T. PROPOSED CHANGE TO THE COMMISSION RULES OF PROCEDURE: Approve a proposed change to the Commission Rules of Procedure for quasi-judicial hearings to provide that the parties, City and applicant, shall each have 10 minutes to present their case rather than 20 minutes for each side. 8.U. REVIEW OF APPEALABLE LAND DEVELOPMENT BOARD ACTIONS: Accept the actions and decisions made by the Land Development Boards for the period April 15, 2013 through May 3, 2013. 8.V. PROCLAMATIONS: 1. Recognizing Carolyn L. Gholston posthumously 2. Better Hearing Month — May 2013 3. National Day of Prayer — May 2, 2013 4. Municipal Clerks Week — May 5 -11, 2013 5. National Kids to Parks Day — May 18, 2013 6. National Safe Boating Week — May 18 -24, 2013 8.W. AWARD OF BIDS AND CONTRACTS: 1. Contract award to Florida Door Control of Orlando, Inc. in the amount of $22,974.00 to expand the current security system for the Police Department's Access Control System. Funding is available from 334 - 2111 -521 -63.90 (General Construction Fund: Capital Outlay /Other Improvements). 2. Contract award to Mancil's Tractor Service, Inc., in the amount of $976,734.32 for construction of the S.W. 2nd Street Beautification Project. Funding is available from 334 - 3162 -541 -65.95 (General 8 05/07/13 Construction Fund: Capital Outlay /S.W. 2nd Street Beautification) and 448 - 5461 -538 -65.95 (Storm Water Utility Fund: Other Improvements /S.W. 2nd Street Beautification). 3. Contract award to Hinterland Group, Inc. in the amount of $29,750.00 for rehabilitation of Lift Station #60 located at Delray Medical Center. Funding is available from 442 - 5178 -536 -68.15 (Water & Sewer Renewal & Replacement Fund: Improvements Other/Lift Station Rehabilitation). Mrs. Petrolia moved to approve the Agenda as amended, seconded by Mr. Frankel. Upon roll call the Commission voted as follows: Mayor Glickstein — Yes; Mrs. Petrolia — Yes; Mr. Jacquet — Yes; Mr. Frankel — Yes; Mrs. Gray — Yes. Said motion passed with a 5 to 0 vote. Mr. Frankel moved to approve the Consent Agenda as amended, seconded by Mrs. Gray. Upon roll call the Commission voted as follows: Mrs. Petrolia — Yes; Mr. Jacquet — Yes; Mr. Frankel — Yes; Mrs. Gray — Yes; Mayor Glickstein — Yes. Said motion passed with a 5 to 0 vote. 9. REGULAR AGENDA: 9.A.A. SERVICE AUTHORIZATION NO. 12- 04 /KIMLEY -HORN AND ASSOCIATES, INC.: Approve a Service Authorization No. 12 -04 with Kimley -Horn and Associates, Inc., in the amount of $46,857.08 for professional services for the South Swinton — S.W. /S.E. 1st Street Signal Project. Funding is available from 334- 3162 -541- 68.32 (General Construction Fund: Other Improvement/S. Swinton — S.W. /S.E. 1st Signal). Mayor Glickstein stated he requested that this item be pulled for further discussion in that S.E. 1st (the last one -way street downtown) is what this signal is related to and asked him to update the Commission as to when this will be a two -lane road. Randal Krejcarek, City Engineer, stated there are three signals on that section of roadway; one is on southbound Federal Highway and one is on Northbound Federal Highway and both of those are going to be converted to two -way signalizations as part of the Federal Highway project which is scheduled to begin May 20, 2013 and is a two -year project. Mr. Krejcarek stated at S.E. 1st Street and S. Swinton Avenue there is an issue with the right -of -way; we do not have any right -of -way existing signalizations on an FPL pole and FPL wants it off and Palm Beach County does not have any room to put another pole. He stated assuming we do not get the right -of -way at Swinton and 1st the second option is once the Federal Highway Project is complete and those two 5th and 6th are converted to two -way they will convert S.E. 1st Street to two -way from 6th going west to S.E. 1st Avenue. 9 05/07/13 Mrs. Gray moved to approve Item 9.A.A. (formerly Item 8.L), seconded by Mr. Frankel. Upon roll call the Commission voted as follows: Mr. Jacquet — Yes; Mr. Frankel — Yes; Mrs. Gray — Yes; Mayor Glickstein — Yes; Mrs. Petrolia — Yes. Said motion passed with a 5 to 0 vote. 9.A.A.A. AMENDMENT NO. 2 TO THE INTERLOCAL AGREEMENT /COMMUNITY REDEVELOPMENT AGENCY WRA); FUNDING OF CONSTRUCTION PROFESSIONAL SERVICES: Approve Amendment No. 2 to the Interlocal Agreement with the Community Redevelopment Agency (CRA) for the funding of construction costs and professional services for certain projects as listed on "Exhibit A" attached to the agreement for FY 2012/2013. Mayor Glickstein asked staff for an overview of where this funding fits in with the overall Plan for the Del Ida improvements. Mr. Krejcarek stated this project is in Del Ida N.E. 2" Avenue /Seacrest Boulevard from N.E. 4m Street going north to N.E. Stn Street (George Bush Boulevard) and it is an enhancement grant (Federal money) that the City received through the MPO. He stated they did their own plan in 1999 which was an assessment to the property owners. In 2001/2002, the City did not do anything on Seacrest Boulevard; that was left out of the plan. Mr. Krejcarek stated the neighborhood has asked the City to address that corridor going through the historic neighborhood. The grant is for construction and the construction money will not become available until next year. Mayor Glickstein asked if sidewalks and lighting improvements are part of this. Mr. Krejcarek stated the components of this project are going to be a modified decorative concrete sidewalk with paver borders on it; there is going to be a green bike lane and there is going to be decorative street lighting; there is going to be paver cross- walks. Mr. Krejcarek stated staff is looking in the future to go north and continue this theme with the sidewalks and bike lanes going north to Gulf Stream Boulevard. Mrs. Gray inquired about the grant. Mr. Krejcarek stated staff applies three (3) years ahead from the time they actually receive them. He stated the grant has been approved and the money is available. Mrs. Petrolia stated she was informed that there is an estimated cost of $900,000 which $598,000 is going to be reimbursed by a grant and the CRA will put forth $150,000. Mr. Krejcarek stated the $150,000 is for design services and to tell the contractor how to build it and will show where the sidewalks, crosswalks, and street lights are going to go. He stated the $900,000 is the actual construction money to construct those improvements along that corridor. Mr. Krejcarek stated the $150,000 is just design costs and this will tell the contractor where to put those improvements when he comes in next year to do the construction. Mrs. Gray asked if the CRA has approved the $400,000. Mr. Krejcarek stated the funding will show up in this year's CIP because staff is planning for next year now in the CIP process and last year staff actually identified it in the five year plan as a proj ect. 10 05/07/13 Mr. Costello stated it is identified in the CIP and each year the CRA has a work program based upon their adopted CRA Plan. He stated this year the CRA funded the design in anticipation of the construction next year. Mr. Costello stated the grant needs to go towards the improvements identified in the grant. Mr. Jacquet asked if the CRA or the City look around the City as far as areas of need and is this top priority where this is most needed. Mr. Krej carek stated there is a beautification requirement and there is also a strong bike and pedestrian requirement. Mr. Jacquet asked if almost any area in the city could have qualified for this being that the City is aiming toward being a more bike and pedestrian friendly community. Mrs. Gray moved to approve Item 9.A.A.A. (formerly Item 8.J.), seconded by Mr. Frankel. Upon roll call the Commission voted as follows: Mr. Frankel — Yes; Mrs. Gray — Yes; Mayor Glickstein — Yes; Mrs. Petrolia — Yes; Mr. Jacquet — Yes. Said motion passed with a 5 to 0 vote. 9.A.A.A. REJECT ALL BIDS FOR OSCEOLA PARK ALLEYS -PHASE 1 PROJECT: Approval to reject all bids for the Osceola Park Alleys — Phase 1 Project, and proceed with re- advertising the project for bid. Victor Majtenyi, Interim Environmental Services Director, stated this project staff bid out had four alleys to do in the Osceola Park area; staff received four (4) bids which range from $114,115.50, $162,996.50, $182,170.00 and $186,482.00. Mr. Majtenyi stated after the opening of the bids staff realized that the low bidder was not pre - qualified under the City's pre - qualification criteria; the second bidder did not acknowledge the addendum #2 so that left bidders 3 and 4. Staff felt the City could get a better deal if they re -bid. Mr. Jacquet asked if it is customary when a company goes through a re- structuring that the City has them resubmit the pre - qualification. In response, Mr. Majtenyi stated yes if staff knows about it. Mr. Jacquet asked when staff anticipates how long this will take to re -bid. Mr. Majtenyi stated within the next 30 -60 days. Mr. Frankel moved to approve Item 9.A.A.A.A. (formerly Item 8.K.), seconded by Mrs. Gray. Upon roll call the Commission voted as follows: Mrs. Gray — Yes; Mayor Glickstein — Yes; Mrs. Petrolia — Yes; Mr. Jacquet — Yes; Mr. Frankel — Yes. Said motion passed with a 5 to 0 vote. 9.A.A.A.A.A. COMMUNITY DEVELOPMENT BLOCK GRANT (CDBG) REVOLVING LOAN FUND GUIDELINES: Approve Community Development Block Grant (CDBG) Revolving Loan Fund guidelines and application. Funding is available from 118 - 1966 - 554 -83.01 (Neighborhood Services: Other Grants and Aids). Lula Butler, Director of Community Improvement, stated this item is for Commission approval of the Community Redevelopment Block Grant (CDBG) revolving loan funds, guidelines, and application. Mrs. Butler stated last year staff reallocated 11 05/07/13 $125,000 of the CDBG dollars to meet some of the economic development needs. She stated these dollars are designed to allow small businesses up to a maximum of $50,000 in loans to be repaid at a maximum of seven years. Mrs. Butler stated sometime last year the City reallocated $125,000 of the CDBG dollars to meet some of the economic development needs especially since we are starting to work towards bringing new businesses along the West Atlantic Avenue Corridor. She stated these dollars are designed to allow small businesses up to a maximum of $50,000 in loans to be repaid at a maximum of seven (7) years from 2 -5 %. Mrs. Butler stated they are governed by HUD guidelines and they can be aggregated with CRA dollars if the need exists but there are very specific requirements that HUD requires the City to have for their CDBG dollars. Mrs. Gray asked what the target area is. Mrs. Butler stated the CDBG target area is from I -95 to Federal Highway to Lake Ida to Linton Boulevard. Mrs. Gray asked what the income level would be for the low and moderate. Mrs. Butler stated the low income is at 80% of median income established for Delray Beach and is based on HUD's published chart that the City uses. Mrs. Gray asked about the funds that are being reallocated from 2010/2011 where are those coming from. Mrs. Butler stated they were unused dollars from Housing Rehabilitation. Mrs. Butler stated the grant monies accumulate over the years if you do not spend it all and the City is allowed to reallocate it with HUD's approval. She stated the City went through that process to reallocate some of that for economic development. Mrs. Gray asked about the training component for this. Mrs. Butler stated there is $25,000 set aside for a consultant to do the training with the customers. She stated Nigel Roberts, Neighborhood Services Administrator will be the assigned person on this. Mr. Jacquet asked if $125,000 is the total amount or is it just a number that is being reallocated. Mrs. Butler stated $125,000 is the total amount that the City has available this year. Mrs. Gray asked if the applicant has to live in Delray Beach. Mrs. Butler stated their business has to be located within the target area or they must live here. Mayor Glickstein asked if this target area is in the CRA district. Mrs. Butler stated the target area is in the CRA and the City could combine dollars. Mrs. Butler stated the CRA has allocated some dollars but they have not approved their guidelines yet. Mayor Glickstein stated in terms of urban renewal success stories these micro -loans have been hugely successful and urged staff to work with the CRA on this. Mr. Jacquet asked how the City publicizes that this program is in existence and it is available to them. Mrs. Butler stated the City has held one public meeting and staff will have another one that they invite businesses. Mrs. Butler stated the City does a search for businesses that are in place already and invite them to attend a Workshop meeting in groups of ten. Mayor Glickstein stated in terms of the TED Center just making people aware that there is another funding source out there. 12 05/07/13 Mrs. Gray stated if the meetings would be targeted toward existing businesses what about information for the startups. Mrs. Butler stated Mr. Roberts has a lot of experience in the micro -loan programs and how to market them. Mr. Costello stated at its Workshop meeting the CRA Board reviewed the preliminary program guidelines and provided comments to staff. He stated the CRA has an Interlocal Agreement tentatively scheduled for the CRA Board meeting at the end of this month. Mrs. Petrolia moved to approve Item 9.A.A.A.A.A. (formerly Item 8.N.), seconded by Mrs. Gray. Upon roll call the Commission voted as follows: Mayor Glickstein — Yes; Mrs. Petrolia — Yes; Mr. Jacquet — Yes; Mr. Frankel — Yes; Mrs. Gray — Yes. Said motion passed with a 5 to 0 vote. 9.A.A.A.A.A.A. PROPOSED CHANGE TO THE COMMISSION RULES OF PROCEDURE: Approve a proposed change to the Commission Rules of Procedure for quasi-judicial hearings to provide that the parties, City and applicant, shall each have 10 minutes to present their case rather than 20 minutes for each side. Mayor Glickstein stated in the Commission meeting they looked at ways to make meetings more expeditious because they felt meetings were getting long and the Commission would like more people to attend meetings and have meetings move along and as things get more complex in the city the agenda is going to get larger and larger. He stated there are times when the public is going to benefit from a longer presentation. Mrs. Petrolia stated she believes the Commission had discussed that there are some situations where they can extend that. Mr. Jacquet stated one of the things that the Commission discussed was that they cannot limit how short they make people's presentations but they can extend their time. Mr. Jacquet stated the one thing that the Commission did not want to do is limit the individuals (the public) presentation but when a developer comes here it could be a shorter presentation and, if so, the Commission could allow them more time if necessary. Mrs. Gray stated in their Strategic Planning meeting the Commission discussed looking at this and voted on the ten minutes but with listening to everyone that spoke today and a lot of people who have been calling and have concerns about it that when they get here and they do their presentation the residents do not have the backup and do not know what is going on. Mrs. Gray supports leaving it at 20 minutes. Mayor Glickstein stated the problem with that process is an applicant's ability to prepare for a meeting; is he preparing for a 20 minute presentation or a 10 minute presentation. He stated neither the applicant nor staff is going to know until they walk into the Commission Chambers and the Commission votes on whether or not to extend the time limit. 13 05/07/13 Mr. Frankel stated if you have a ten minute cap and add a procedure where in writing prior to the hearing an individual can request additional time because they feel it is necessary. The City Attorney stated the Commission brings up a good point that as far as preparation in time so the applicant will know in advance. He stated if a Department Head makes a recommendation to extend the Quasi - Judicial time from 10 to 20 minutes then we need to allow the applicant adequate time (a week or two weeks before the hearing itself) where they will know that they will get 20 minutes. The City Attorney stated there is not a way for the Commission to say they will abide by that because until they vote they do not have to. Mayor Glickstein stated the Commission could decide that they want to hear more and perhaps in more cases they would want to hear less. Mayor Glickstein concurs with Commissioner Frankel that if staff understands that the benchmark is ten minutes but that in extenuating circumstances whether it is complexity or public interest they can make that determination in enough time, he believes that the Commission might meet their objective by a large decreasing the time for most Quasi - Judicial hearings. Mayor Glickstein stated as a compromise if the Mayor has the ability extend regarding Commissioner Gray's comment, it requires if the Department Head came to the Mayor and said we have a request to extend the meeting that is another party involved that perhaps takes it out of a personal relationship with the developer. Mayor Glickstein asked if the Mayor has the ability to unilaterally extend the meeting. The City Attorney stated the Mayor has the ability to allow people to comment longer during public comment or if there is a consensus of the Commission they can do that. The City Attorney stated on Quasi - Judicial hearings it is not really set up that way. The City Attorney stated if the Commission makes the change here this applies globally to all of the City Boards. The City Manager stated Commissioner Frankel makes a good point and that is there have been very few occasions where 20 minutes was necessary. He stated when members of his staff heard that the Commissioner was considering reducing the amount of time the two people who were primarily concerned with this issue felt there is not going to be enough time because there are very complex issues sometimes. Mrs. Gray suggested that the Commission consider 15 minutes instead of 10 minutes. Mr. Frankel stated the presentations are reading the PowerPoint presentations that the Commission is given prior to the meeting and are made available to the public. 14 05/07/13 Mr. Jacquet stated Commissioner Frankel makes a good point that having been here longer than anyone else on the dais and having seen numerous presentations all his points are valid. Mr. Jacquet stated he feels the City should not limit what the public gets to say but that the City can limit it for the applicants and developers with the check in place that they can always allow more time. Mayor Glickstein stated if staff is going to have new direction on making that determination that if they do receive information at the last minute and if the Commission shortens the length of time, then it is incumbent upon staff to inform them that they have missed the agenda. He reiterated that the notion of getting things in at the last minute and staff has not fully vetted it and then the Commission receives it late then they can either choose to submit it and they will get bumped to the next meeting, or they cannot submit it to stay on the agenda and staff should be empowered to say "no ". Mr. Jacquet stated this will encourage staff to communicate more with the Commission. Mrs. Gray expressed concern over the other Boards and asked how this will affect them. The City Attorney stated the Commission and the applicant will understand that if staff early on has recommended more time at the earlier Boards that they would probably likewise continue that depending on what the project is. Mr. Frankel moved to approve Item 9.A.A.A.A.A.A. (formerly Item 8.T.), seconded by Mrs. Petrolia. Upon roll call the Commission voted as follows: Mrs. Petrolia — Yes; Mr. Jacquet — Yes; Mr. Frankel — Yes; Mrs. Gray — No; Mayor Glickstein — Yes. Said motion passed with a 4 to 1 vote, Commissioner Gray dissenting. 9.A. WAIVER REQUEST/ COMMUNITY REDEVELOPMENT AGENCY (CRA); ARTISTIC BANNERS: Consider approval of a waiver request to Land Development Regulations (LDR) Section 4.6.5 (D), "Fence Types" to allow for the design and installation of four (4) artistic banners (5' x 30') to an existing fence on Community Redevelopment Agency's (CRA) property located at 805 West Atlantic Avenue pursuant to the recommendation of the Public Arts Advisory Board (PAAB). (Quasi- Judicial Hearing) Mayor Glickstein 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 Item 9.A., 9.11., 9.C., and 9.1). Mayor Glickstein asked the Commission to disclose their ex parte communications. Mr. Frankel, Mrs. Gray, Mrs. Petrolia, and Mayor Glickstein had no ex parte communications. Mr. Jacquet was away from the dais at this time. 15 05/07/13 Lula Butler, Director of Community Improvement, stated the item before the Commission is a waiver to LDR Section 4.6.5(D) for the installation of four (4) artistic banners (5' x 30') to the existing fence of the Community Redevelopment property located at 805 West Atlantic Avenue for the next two years. Mrs. Butler stated this is a recommendation coming to the Commission from the Public Arts Advisory Board (PAAB) as well. Mrs. Butler displayed photos of what the banners will look like and stated this site is owned by the CRA and is under mitigation for soil and groundwater. She stated it will take 2 -4 years to get this done. Mrs. Butler stated the project was approved by the Community Redevelopment Agency (CRA) Board for funding at their regular meeting on March 28, 2013 and was approved by the Public Art Advisory Board (PAAB) at their regular meeting on April 22, 2013. Staff recommends that the City Commission approve the waiver to LDR Section 4.6.5(D) to allow this project as it will utilize a form of public art to beautify the existing condition of the construction site and represents a collaboration of efforts with the community between the CRA, WARC and the Milagro Center. Mayor Glickstein stated if anyone from the public would like to speak in favor or opposition of the request, to please come forward at this time. Christina Morrison, 2809 Florida Boulevard #207, Delray Beach, FL 33483, stated she loves the art but expressed concern over the maintenance of the art. Ms. Morrison supports moving forward with the caveat that should the art deteriorate that they must be removed before they look worse than not having them there. Jeff Costello, Assistant Director of the CRA, stated the CRA will maintain the banners. There being no one else from the public who wished to address the Commission, the public hearing was closed. Mrs. Gray stated she is excited about the public art. Mrs. Petrolia stated the timing on it will alleviate the shabbiness over time. 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). Mrs. Gray moved to adopt the Board Order approving the waiver request, seconded by Mr. Frankel. Upon roll call the Commission voted as follows: Mrs. Petrolia — Yes; Mr. Jacquet — Yes; Mr. Frankel — Yes; Mrs. Gray — Yes; Mayor Glickstein — Yes. Said motion passed with a 5 to 0 vote. 16 05/07/13 9.B. WAIVER REQUEST/HYATT PLACE DELRAY BEACH: Consider approval of a waiver request to Land Development Regulations (LDR) Section 4.3.3(V)(2)(c)(1), "Prohibitions by Frequency ", to extend the six month time limit to establish a stand -alone bar at the Hyatt Place Delray Beach, located at 104 N.E. 2" d Avenue. (Quasi- Judicial Hearing) Mayor Glickstein asked the Commission to disclose their ex parte communications. The Commission had no ex parte communications to disclose. Paul Dorling, AICP, Director of Planning and Zoning, entered the Planning and Zoning Department project file #2013 -073 into the record. Mr. Dorling stated this is a waiver request to LDR Section 4.3.3(V)(2)(c)(1), which allows a written request to establish a stand -alone bar to be valid for a period not to exceed six (6) months. Mr. Dorling stated the proposal is the intent to develop the 2,100 square foot area that is on the north part of the ground floor of the Hyatt on Pineapple Grove Way into a retail /wine shop which will also have self - service wine dispensers and would permit tasting of wine prior to purchase. On September 20, 2011, they came in and vested their spot prior to the construction of the Hyatt Place and that was tied to the Certificate of Occupancy or no later than December 2012. The City Commission approved an extension of time frame at its meeting of December 12, 2012, which extended the time to establish the bar until April 12, 2013. The applicant has started the interior build -out of the tenant space. However, the applicant was unsuccessful in completing the work prior to the April expiration. A request was submitted by the applicant on March 18, 2013 to extend the approval for six months in order to allow sufficient time to complete the build -out of the tenant space while maintaining priority to establish a bar at this location. Mr. Dorling stated they are requesting that the six (6) months be extended to allow them to construct it and establish the facility within a couple of months which would be September 18, 2013. Ronald L. Voss III, Managing Partner, N2 Wine Bar, 320 Beverly Drive, Delray Beach FL 33444, stated they are under construction and briefly discussed the project. Mr. Voss stated it should not take more than 60 -90 days. Mayor Glickstein stated if anyone from the public would like to speak in favor or in opposition of the waiver request, to please come forward at this time. There being no from the public who wished to address the Commission, the public hearing was closed. Brief discussion between Commissioner Jacquet and Mr. Dorling regarding the extension followed. 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). 17 05/07/13 Mr. Frankel moved to approve the Board Order approving the waiver request, seconded by Mrs. Gray. Upon roll call the Commission voted as follows: Mr. Jacquet — Yes; Mr. Frankel — Yes; Mrs. Gray — Yes; Mayor Glickstein — Yes; Mrs. Petrolia — Yes. Said motion passed with a 5 to 0 vote. 9.C. WAIVER REQUESTS/ COMMUNITY REDEVELOPMENT AGENCY (CRA); 46 S.W. 9 AVENUE: Consider approval of two (2) waiver requests to Land Development Regulation (LDR) Section 4.6.9(D)(3)(b), "Point of Access to the Street System ", to reduce the width of the point of access for a parking lot driveway from the required 24' to the proposed 22' adjacent to S.W. 10th Avenue and Section 4.6.9(D)(4)(d), "Maneuvering Area, Aisle Width, Space Width ", to reduce the drive aisle width with perpendicular parking from the required 24' to the proposed 22' adjacent to S.W. 10th Avenue for the Community Redevelopment Agency (CRA) Parking Lot located at 46 S.W. 9th Avenue. (Quasi- Judicial Hearing) Mayor Glickstein asked the Commission to disclose their ex parte communications. The Commission had no ex parte communications to disclose. Paul Dorling, AICP, Director of Planning and Zoning, entered the Planning and Zoning Department project file #2013 -085 into the record. Mr. Dorling stated this is a request for two waivers to LDR Section 4.6.9(D)(3)(b) and LDR Section 4.6.9(D)(4)(d) for a parking lot to be constructed by the CRA at 46 S.W. 9th Avenue. He stated the two waiver requests are to the point of access to a street to the parking lot and the drive isle of the parking lot. Mr. Dorling stated the proposal is to construct a parking lot and a recreation playground area. The driveway width is required to be 24 feet and it is reduced to 22 feet and there is a waiver to the drive isle adjacent to the parking spaces to 22 feet versus 24 feet. Mr. Dorling stated the Code allows a reduction to 22 feet when there is parking that does not back into it. At its meeting of March 27, 2013, the Site Plan Review and Appearance Board approved both waivers along with the site plan and landscape plan for the entire piece. Staff recommends approval of both waivers at this time. Jeff Costello Assistant Director of the CRA stated this is very similar to the parking lot they constructed at 57 S.W. 5h Mayor Glickstein 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, the public hearing was closed. Mr. Jacquet inquired about the number of parking spaces. Mr. Costello stated there are 40 parking spaces; the original proposal was 45 and they would have been required to have waivers to the stacking distance requirement on 1st Street access point as well as 9th Avenue if they did not provide the 20 feet stacking. However, Mr. 18 05/07/13 Costello stated in order to eliminate the need for additional waivers staff eliminated parking and provided the stacking. Mr. Jacquet asked if the CRA anticipates the church using any of that parking. Mr. Costello stated the CRA anticipates utilization and as part of this proposal the CRA is constructing a sidewalk along S.W. 1st Street between 9th Avenue to 10th Avenue in order to provide that pedestrian connection. Mr. Jacquet stated the CRA does not anticipate that it will impede the ability for vehicles to adequately navigate the site but expressed concern with church patrons and a number of cars moving in and out. Mr. Costello stated right there is a lot of reduction in travel lane widths and noted many streets are 11 feet wide; travel lanes have a 22 foot width. Mr. Costello stated they are not aware of any conflicts at the other parking lots where those waivers have been granted at 22 feet. Mr. Costello stated the CRA feels very comfortable with this situation. Mr. Jacquet inquired about sidewalks. Mr. Costello stated there is an existing sidewalk along 10th Avenue on the east side adjacent to the church parking lot; however, the Fairfield Inn project is moving forward and includes on- street parking. Mrs. Gray stated if the parking lot is supposed to be available to help with the Palm Manor Apartments and the surrounding communities how they would have access to it in the evenings. Mr. Costello stated the CRA had two meetings with the community and they identified the concerns in the evening. He stated the pocket park will have two gates; there is a gate opening at the northeast corner next to the handicapped space and at the southeast corner of the park. 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 approving both waiver requests, seconded by Mrs. Gray. Upon roll call the Commission voted as follows: Mr. Frankel — Yes; Mrs. Gray — Yes; Mayor Glickstein — Yes; Mrs. Petrolia — Yes; Mr. Jacquet — Yes. Said motion passed with a 5 to 0 vote. 9.D. WAIVER REQUESTS: SUNTRUST BANK/CHICK -FIL -A RESTAURANT: Consider approval of two (2) waiver requests to Land Development Regulations (LDR) Section 4.6.12(F)(2), "Minimum Floor Area ", which requires that free - standing structures have a minimum floor area of 6,000 square feet and Land Development Regulations (LDR) Section 4.6.9(13)(3)(c)(1), "Stacking Distance ", which requires a stacking distance of 50 feet for parking areas that contain 51 or more parking spaces for SunTrust Bank/Chick -Fil -A Restaurant, located at the southwest corner of Linton Boulevard and South Federal Highway. (Quasi- Judicial Hearing) Mayor Glickstein asked the Commission to disclose their ex parte communications. Mr. Frankel stated he spoke to Michael Weiner. Mrs. Petrolia and Mayor Glickstein had no ex parte communications to disclose. Mrs. Gray stated she received a telephone message from Mr. Weiner but did not speak to him. Mr. Jacquet stated he received a telephone message from Mr. Weiner and he attempted to call this afternoon but did not reach him. 19 05/07/13 Paul Dorling, AICP, Director of Planning and Zoning, entered the Planning and Zoning Department project file #2013 -017 into the record. Mr. Dorling stated this item is for two waiver requests for a Class V site plan recently approved for Sun Trust Bank and Chick -fil -A at the southwest corner of Linton Boulevard and Federal Highway. The first waiver relates to the stacking distance of 50 feet of a parking area that contains more than 51 spaces and this requirement is reduced by 40 feet on Linton Boulevard and 13 feet on Federal Highway. The LDRs talk about measuring that from the property line. Mr. Dorling stated the actual travel lanes within southbound Federal Highway and Linton Boulevard are much further away because of the landscape that is outside of the property and the distance actually to the physical travel lanes would be 54 feet in Federal Highway and 60 feet in Linton. The second waiver is to the requirement in the planned commercial district that you have a minimum size building of 6,000 feet; the proposed buildings are 3,330 square feet and 2,730 square feet and they are replacing an existing building of 5,724 feet. Mr. Dorling stated that commercial designation is usually allocated to larger sites such as malls and shopping centers and it is envisioned that larger commercial developments would have large outparcels. Mr. Dorling stated this was considered by SPRAB as part of their Site Plan Review and Appearance Board meeting on March 27, 2013 and was approved as was the recommendation of approval put forth for both of these waivers. He stated positive findings are made in the staff report under LDR Section 2.4.7(B)(5) and recommend approval of these waivers. Mr. Dorling displayed the proposed elevation of the SunTrust Bank and the Chick -fil -A building. Michael Weiner, Attorney with Weiner & Lynne, P.A., 10 S.E. 1St Avenue, Delray Beach, FL 33444 (representing the applicant), stated the Site Plan Review and Appearance Board approved the Class V site plan for the SunTrust Bank/Chick- fil -A, approved the demolition of a 42 year old building, and a new development that is compliant with the City's regulations. Mr. Weiner stated this is two buildings existing of slightly more than 6,000 square feet and replacing a building that is 5,700 square feet on 1' /z acres. He stated they met all the applicable standards and requirements and there is not any requirement that they did not equal or exceed. Mr. Weiner stated the first waiver is a matter of building size. Staff analyzed that particular waiver and supports it allowing for two smaller buildings that add up to more than 6,000 square feet, meet all the elements for granting the waiver, it does not adversely affect the neighboring area, it does not significantly diminish the provision of public facilities, it does not create an unsafe situation, and it does not result in the grant of a special privilege. Mr. Weiner stated the second waiver relates to stacking distance. Mr. Weiner stated he would like to see a new building built in placement of a 42 year old flat roof Sun Bank. Mr. Jacquet stated with 75% less of distance from Federal Highway how is this considered minor and made reference to Mr. Weiner's comments about the way we measure the stacking distance. Mr. Dorling stated Mr. Weiner stated he meets the intent 20 05/07/13 of the Code in that the actual physical area to stack is available or exceeded; however, by the Code the way we are forced to measure it is deficient. So from the property line it does not meet the Code. Mr. Jacquet stated he is trying to understand why staff says in the waiver analysis it is no good then at the end it states that staff recommends approval. Mr. Jacquet asked if staff agrees that they are not meeting the intent of the PC why does staff support this waiver. Mr. Dorling stated because the PC is applied to Planned Commercial larger sites and all of the zoning is PC. He stated these are small sites and should be zoned GC (General Commercial) which is normally applied to smaller sites. Mr. Weiner stated there are four reasons behind a waiver and they meet all four of them: (1) they have not done any damage to the neighborhood, (2) it is not unsafe, (3) they do not use public services, and (4) under the circumstances which upon their application they did not know that this particular property had been zoned PC without thought to the fact that it was only 1' /z acres. He stated under those circumstances staff brought them to the correct reasoning why a waiver works here. Mr. Frankel supports granting the waiver. Mrs. Gray stated she too supports the waiver. Mayor Glickstein stated he understands Commissioner Jacquet's concerns. Mayor Glickstein stated given what is there with the Burger King on one direction and the office building in the other it would be great to see that redeveloped as a PC development. However, Mayor Glickstein stated that is not what is before the Commission and the likelihood of that aggregation such that you could retain the PC zoning in a justifiable size is highly unlikely. Mayor Glickstein stated he concurs that the outparcel site plan is not the solution he would like to see there but the plan is better than what is there now and the likelihood of something better is probably remote. Mayor Glickstein stated to the extent that an LDR change regarding these waivers is appropriate so it is one less waiver for this Commission or any other Board to deal with; he noted if you have multiple entrances you do not need the stacking then we should not be dealing with the waiver. Mrs. Petrolia stated she is a little disappointed that this property was not flipped. 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. Jacquet moved to adopt the Board Order approving both waiver requests, seconded by Mr. Frankel. Upon roll call the Commission voted as follows: Mrs. Gray — Yes; Mayor Glickstein — Yes; Mrs. Petrolia — Yes; Mr. Jacquet — Yes; Mr. Frankel — Yes. Said motion passed with a 5 to 0 vote. 21 05/07/13 9.E. REJECT ALL BIDS FOR FEDERAL LEGISLATIVE LOBBYING SERVICES: Consider rejecting all bids received for comprehensive Federal Lobbying Services (RFP No. 2013- 34). Rich Reade, Sustainability Officer, stated this item is from an earlier meeting where it was discussed and determined that it would be better to go out for an RFP for a single item rather than the general coverage of legislative lobbying. Mayor Glickstein stated he is fully supportive of focusing on one single item. Mr. Jacquet stated it is true that if you have a single issue it may get some attention but it is also true that any other things that you can gain from a lobbyist you lose that when you focus on a single issue. He stated normally when you have a lobbying firm you hire them for multiple issues and you prioritize and the lobbying firm will focus on those issues primarily. Mr. Jacquet stated we have a lobbyist in Tallahassee for a single issue and that issue did not happen the way that the City wanted it to. He stated when the City hires for a single issue he does not believe we are going to get that. Mrs. Petrolia stated she recalls that the Commission did discuss cost and they felt as though it was going to be excessive and this is one of the reasons the Commission decided to do the single issue. Mrs. Gray stated she feels it is important to revisit hiring a lobbyist because as a single issue the sober housing is going to have to be really looked at. She feels that the City of Delray Beach needs a Federal lobbyist because there are grants and different things that they would be able to apprise the Commission on. Mr. Frankel stated he is not in support of rejecting the bids because he believes the City needs a Federal Lobbyist because transient housing is the number one issue of the City and feels that having a single issue lobbyist would potentially handcuff us from any grants or Federal dollars that the City could get. Mrs. Petrolia stated the City has a unique issue to our area and she questions spending money and whether or not we received anything back. Mr. Jacquet stated Commissioner Petrolia has an excellent point and it is the reason why we should not focus on a single issue. He is hopeful that the City would be able to get something passed to take care of this issue but does not know how likely it is. Mr. Jacquet stated if the City hires a Federal lobbyist on that single issue we may not get anything done at all and that is really money being wasted. However, Mr. Jacquet stated if the City hires a Federal lobbyist and if that fails we could potentially get some grant dollars or could potentially get something else from them besides just that. Mr. Jacquet stated he is reconsidering his prior comments. 22 05/07/13 Mrs. Gray stated the City's lobbyist in Tallahassee was not a waste of time but sometimes it takes 1 -5 years for some successes. Mayor Glickstein concurred with comments expressed by Commissioner Gray. Mayor Glickstein stated when he asked about the track record for the State lobbyist who is handling a multitude of issues that the prior Commission prioritized he was informed that they were largely unsuccessful in getting anything done that the City could not of otherwise done with our local legislators. In response, Mr. Reade stated they were given all the priorities but they really focused on the Enterprise Zone issue as their single top priority. Mayor Glickstein stated taking that lobbyist and combining them with Ballard who was given a single purpose item the City got zero for our dollars. Mayor Glickstein stated the State lobbying effort is a far more focused effort than when we start talking about a Federal lobbyist when we are trying to get the support of not only our own Senators and Congressmen but 49 other states or a majority of those. Mayor Glickstein stated the Commission understands that the sober house issue is of critical importance and the way the City was approaching it was not so much a lobbying effort going after Senators and Congressmen but focused on modifying HUD rules and administrative rules that would allow us more local rule flexibility. The City Attorney stated what the City's hope is that they can have some minor changes on the Fair Housing Act Amendments so that the City could have better local control over this topic. He stated staff was possibly focusing on certain administrative agencies. Brief discussion from the City Attorney and Assistant City Attorney followed. Terrill Pyburn, Assistant City Attorney, stated in dealing with a lobbyist at the State level it was frustrating; however, there was a proviso that was passed by the legislature that requires DCF to set aside funding to possibly license sober houses next year and the idea was that by approaching HUD instead of going through Congress and trying to change the ADA or the Fair Housing Act that the City could seek some clarification of the Fair Housing Act and HUD's interpretation of it. Mayor Glickstein stated it is progress on some level but it is a function of dollars and where can we best target that in particular the public is screaming for the Commission to try anything and everything so what is the most cost effective way to do that. He stated this seems like a smart way of spending limited resources. The City Attorney stated staff will be coming before the Commission in the next several months with an amendment to the City's current State Lobbying Agreement to continue this because the City has to continue conversations with DCF to continue what little momentum we have in order to try to accomplish something. Mrs. Gray suggested that during the budget cycle that the City looks at including a Federal Lobbyist. The City Manager stated in exercising budget discipline 23 05/07/13 Mrs. Gray moved to reject all bids received, seconded by Mrs. Petrolia. Upon roll call the Commission voted as follows: Mayor Glickstein — Yes; Mrs. Petrolia — Yes; Mr. Jacquet — Yes; Mr. Frankel — No; Mrs. Gray — Yes. Said motion passed with a 4 to 1 vote, Commissioner Frankel dissenting. 9.F. REQUEST FOR PROPOSAL (RFP) FOR FEDERAL LOBBYING SERVICES: Provide direction regarding a Request for Proposal (RFP) for Federal Lobbying Services. The City Attorney stated this has a narrow scope of work based on the Commission's prior conversation. Mayor Glickstein asked if there is a way in this process to gauge whether this idea is worthy of pursuing. Terrill Pyburn, Assistant City Attorney, stated in going out for an RFP you look at the submittals that are received and get a good idea based on the experience of the people who have applied whether or not they have the qualifications that are necessary to meet the City's needs. Ms. Pyburn stated the City can contact HUD on their own and staff has done that before in various scenarios and have not gotten anywhere. She stated there is no sure way to gage how effective it will be. Mayor Glickstein suggested that staff go forward with the RFP and see what we get and from there he would like those people before this Commission and grill the lobbyist on how effective they are going to be rather than staff making that decision independent of this Commission. After brief discussion, it was the consensus of the Commission to direct the City Attorney's office to go forward with the Request for Proposal (RFP) regarding the sober house issue. 9.G. SETTLEMENT OFFER IN CURLENE THOMAS v. CITY OF DELRAY BEACH: Consider a Settlement Offer in the total amount of $20,000.00 in Curlene Thomas v. City of Delray Beach. Staff recommends approval; subject to the receipt of the appropriate releases. The City Attorney stated the applicant was riding her bicycle and a City employee inadvertently when they were weed eating turned around and caused her to fall off her bike and incur injuries. Her medical costs to date are approximately $35,000- $40,000. Staff recommends settling this case for $20,000. Mr. Frankel moved to approve the settlement offer in the amount of $20,000, seconded by Mrs. Petrolia. Upon roll call the Commission voted as follows: Mrs. Petrolia — Yes; Mr. Jacquet — Yes; Mr. Frankel — Yes; Mrs. Gray — Yes; Mayor Glickstein — Yes. Said motion passed with a 5 to 0 vote. 24 05/07/13 9.H. PROPOSAL FOR SETTLEMENT IN PREVILLON CASSY v. CITY OF DELRAY BEACH: Consider a Settlement Offer in the total amount of $49,999.99 in Previllon Cassy v. City of Delray Beach. Staff recommends denial. The City Attorney stated Mr. Cassy was riding his bicycle on the sidewalk and he cut out in front of one of the City's C.O.P. volunteers was unable to stop and he hit Mr. Cassy. The settlement offer they are proposing is for $49,999.99 and staff recommends denial. Mr. Frankel moved to deny the settle offer in the amount of $49,999.99, seconded by Mrs. Petrolia. Upon roll call the Commission voted as follows: Mrs. Petrolia — Yes; Mr. Jacquet — Yes; Mr. Frankel — Yes; Mrs. Gray — Yes; Mayor Glickstein — Yes. Said motion passed with a 5 to 0 vote. 9_I. APPOINTMENT TO THE POLICE & FIREFIGHTERS RETIREMENT SYSTEM BOARD OF TRUSTEES: Appoint one (1) regular member to serve a two (2) year term ending April 22, 2015 to the Police & Firefighters Retirement System Board of Trustees. Based upon the rotation system, the appointment will be made by Commissioner Jacquet (Seat #2). Mr. Jacquet stated he would like to defer his appointment to the next regular meeting of May 21, 2013. 9.J. APPOINTMENT TO THE PUBLIC ART ADVISORY BOARD: Appoint one (1) regular member to the Public Art Advisory Board to serve an unexpired term plus a two (2) year term ending July 31, 2015. Based upon the rotation system, the appointment will be made by Commissioner Jacquet (Seat #2). Mr. Jacquet stated he would like to defer his appointment to the next regular meeting of May 21, 2013. 9.K APPOINTMENT TO THE DELRAY BEACH HOUSING AUTHORITY: Appoint one (1) regular member to the Delray Beach Housing Authority to serve an unexpired term plus a four (4) term ending July 14, 2017. Based upon the rotation system, the recommendation for appointment will be made by Commissioner Jacquet (Seat #2). Mr. Jacquet stated he would like to defer his appointment to the next regular meeting of May 21, 2013. 9.L. APPOINTMENT TO THE FINANCIAL REVIEW BOARD: Appoint one (1) regular member to the Financial Review Board to serve an unexpired term ending July 31, 2014. Based upon the rotation system, the appointment will be made by Commissioner Petrolia (Seat #1). 25 05/07/13 Mr. Jacquet stated he would like to defer his appointment to the next regular meeting of May 21, 2013. 9.M. APPOINTMENT TO THE POLICE ADVISORY BOARD: Appoint one (1) regular member to the Police Advisory Board to serve an unexpired term plus a two (2) year term ending July 31, 2015. Based upon the rotation system, the appointment will be made by Commissioner Jacquet (Seat #2). Mr. Jacquet stated he would like to defer his appointment to the next regular meeting of May 21, 2013. 9.N. OFFER OF SETTLEMENT IN KIERAN MACKENZIE v. CITY OF DELRAY BEACH: Consider an Offer of Settlement in the total amount of $20,000.00 in Kieran Mackenzie v. City of Delray Beach. Staff recommends approval. (ADDENDUM) Terrill Pyburn, Assistant City Attorney, stated a man was riding his bicycle on December 11, 2007 and he struck a pothole in the road and the City repaired the road. Ms. Pyburn stated he had over $183,000 in medical bills due to multiple injuries including a complete right shoulder replacement. Ms. Pyburn stated they have agreed to settle the case for $20,000 and staff recommends approval. Mr. Frankel moved to approve the Offer of Settlement in Kieran Mackenzie v. City of Delray Beach, seconded by Mrs. Gray. Upon roll call the Commission voted as follows: Mr. Frankel — Yes; Mrs. Gray — Yes; Mayor Glickstein — Yes; Mrs. Petrolia — Yes; Mr. Jacquet — Yes. Said motion passed with a 5 to 0 vote. 10. PUBLIC HEARINGS: 12. A. None At this point, the Commission moved to Item 12, First Readings. FIRST READINGS: 12.A. ORDINANCE NO. 10 -13: Consider an amendment to Chapter 33, "Police and Fire - Rescue Departments ", Section 33.62, "Benefit Amounts and Eligibility ", and Section 33.64, "Contributions ". If passed, a public hearing will be held on May 21, 2013. The caption of Ordinance No. 10 -13 is as follows: AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AMENDING CHAPTER 33, "POLICE AND FIRE - RESCUE DEPARTMENTS "; AMENDING SECTION 26 05/07/13 office.) 33.62, `BENEFIT AMOUNTS AND ELIGIBILITY "; AMENDING SECTION, "33.64, "CONTRIBUTIONS "; PROVIDING A SAVING CLAUSE, A GENERAL REPEALER CLAUSE, AND AN EFFECTIVE DATE. (The official copy of Ordinance No. 10 -13 is on file in the City Clerk's The City Attorney read the caption of the ordinance. Bruce Koeser, Human Resources Director, stated one of the things the City negotiated for Police and Fire was a reduction in the second tier pension (pension for new hires) that would eliminate the enhanced multiplier (3.5 %) opportunity. Mr. Koeser stated after 20 years the pension multiplier would go from 2.5% to 3.0 %. Mr. Frankel moved to approve Ordinance No. 10 -13 on FIRST Reading, seconded by Mrs. Gray. Upon roll call the Commission voted as follows: Mrs. Gray — Yes; Mayor Glickstein — Yes; Mrs. Petrolia — Yes; Mr. Jacquet — 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 stated he and staff have devised a strategy for addressing the LDRs and they will be advancing that process to the Commission soon. In addition, the City Manager stated staff is looking at developing a comprehensive approach to the parking issue. The City Manager stated there was a parking study done in 2006/2007 and it had some recommendations included in it that staff is going to go back and revisit. 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 with regard to comments about the parking meters on the beach they failed to include the handicapped signs. He stated there are too many beach signs instructing people how to put sun tan lotion on. The City Manager commented about the signage delivery system in general and whether or not we can clean it up and get rid of some of the visual pollution. 27 05/07/13 13.C.2. Mrs. Gray Mrs. Gray asked for an update on David Wilke who is the consultant for the Congress Avenue Corridor. She stated the City extended his contract for an additional six (6) months. Secondly, Mrs. Gray asked for the status on the Economic Development Self- Assessment Test (EDSAT). Rich Reade, Sustainability Officer, stated the report is on the City's website and it was discussed at the Economic Development Committee meeting. Mrs. Gray requested that Mr. Wilke provide a report with the full Commission present. She concurs with Ms. Moody's comments about the directional signs to the garage. Mrs. Gray announced that the City will host the Youth Town Hall Meeting on Monday, May 20, 2013 at 5:30 p.m. She stated the Delray Beach Youth Council, Village Academy, Atlantic High School and everyone who is involved is excited. Lastly, Mrs. Gray stated two new sober houses have opened up in the Southwest neighborhood right next door to each other and asked how citizens can report them. The City Attorney stated if the numbers of people are beyond the City's definition of family then they can seek a reasonable accommodation; if they are not beyond the City's definition of family then by right they can be there. 13.C.3. Mrs. Petrolia Mrs. Petrolia stated the FED Cup event was amazing. Secondly, Mrs. Petrolia recognized the TEDx event which was also an incredible event. She stated last night she attended Delray Start Up at the Delray Beach Public Library. Mrs. Petrolia stated she was so excited to meet different people that were coming in and possibly looking at our city as a place to do business and possibly even relocate here. Mrs. Petrolia thanked the City Manager for putting the Waste Management Contract on the Workshop agenda. She asked whether or not the City is receiving a franchise fee on single- family and multi - family dwellings. The City Attorney stated staff will check into this. 28 05/07/13 Mrs. Petrolia asked about the status of the public records request regarding Senator Abruzzo. The City Attorney stated about 1' /z weeks ago staff contacted the Senate office and they indicated that because it was approaching the end of the Legislative session they were having a lot of public records requests and they would get to it within a reasonable period of time. The City Attorney stated staff will follow -up with them again. Mrs. Petrolia praised Mayor Glickstein for having the courage, strength, and the foresight to make this public records request. Mrs. Petrolia read a brief statement into the record. 13.C.4. Mr. Jacquet Mr. Jacquet stated people who are listening online are having a tough time hearing what is going on in the Chambers. He requested that the audio in the Chambers be checked. Secondly, Mr. Jacquet stated he attended the Swearing -In of five (5) new police officers and there was an Awards Ceremony for saving lives and Officers of the Month. He stated Haitian Flag Day will be held on May 18, 2013 at 10:00 a.m. in front of City Hall and everyone has been invited by Major Joe Bernadel, Director of Toussaint L'Ouverture High School. Mr. Jacquet stated afterwards they will have an event at the Tennis Center as well. Mr. Jacquet commented about the Legislative Updates and inquired as to when that is going to be as far as inviting the Legislative Delegates. Mr. Jacquet stated he had the opportunity of doing some career days last week and looks forward to doing more. Mr. Jacquet stated a while ago he brought up the naming of one of the streets. For example, he stated if you have S.E. 2nd or S.E. 3rd Avenue hanging a name below it such as Toussaint L'Ouverture Street is something that the community that lives there is pushing for. Mr. Jacquet stated he understands we cannot change the name of a street but that we can add to a street. He would like the City to consider this for some of the residents and businesses around that area because the Haitian - American community would love to see that. Lastly, Mr. Jacquet commented about the bids and asked if there is sufficient staff to handle all the bids compared to other cities. He asked for clarification when the bids go out, who works on them, and how much work it entails. Mr. Jacquet stated he would like staff to take a look at this when discussing budgeting and staffing to see if this is something we need to take a serious look at. 13.C.5. Mayor Glickstein 29 05/07/13 Mayor Glickstein stated there is a treatment facility (The HHH Building) at the intersection of Andrews Avenue and George Bush Boulevard. He stated they recently installed a fence running the entire length of George Bush Boulevard along their property and also own the building to the east which used to be occupied by Kanner & Pintaluga, P.A. Mayor Glickstein stated there is approximately 300 feet of fence or longer running the length of the property and there is no landscaping. He stated the LDRs require a hedge behind a fence on a commercial piece of property and asked that staff look into this because it is currently an eyesore. Secondly, Mayor Glickstein stated there is Town Hall Meeting at Old School Square scheduled for June 13, 2013 and the topics to be discussed are going to be Mr. Chapman's overview of the financial condition /status of the City and growth management in general. Mayor Glickstein stated with regard to the LDR issues, he has met with the City Manager, the City Attorney, Mr. Dorling, and Mrs. Butler in terms of where we are headed with this. Mayor Glickstein stated the LDRs are in need of updating and changing but also the City's process. He stated Delray Beach has a very antiquated process. For example, the City of Boca Raton Board looks at the project so the substantive review of the project is done by their Planning and Zoning Board which meets twice a month. Mayor Glickstein asked, relative to the audio, about the status of the light warning speakers that their three (3) minutes is about to expire. The City Manager stated the City Clerk is working on this. Lastly, Mayor Glickstein stated he would like to see the parking issue on a June Workshop and signage is part of that parking plan. He feels that the City should have looked at parking years ago as a source of revenue. He stated if the Commission is inclined to look at this as a real source of revenue how do we get there. Mayor Glickstein suggested that Kimley -Horn be present at the Workshop and boil this down of how the City can get there if the Commission so desires. There being no further business, Mayor Glickstein declared the meeting adjourned at 9:27 p.m. ATTEST: City Clerk 30 05/07/13 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 May 7, 2013, 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. 31 05/07/13 IN THE CITY COMMISSION CHAMBERS OF THE CITY OF DELRAY BEACH, FLORIDA ORDER OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA WAIVER REQUEST TO ALLOW THE INSTALLATION OF ARTISTIC BANNERS TO THE EXISTING FENCE OF THE COMMUNITY REDEVELOPMENT PROPERTY LOCATED AT 805 WEST ATLANTIC AVENUE 1. This waiver request to allow the installation of four (4) artistic banners (5' x 30) to the existing fence of the Community Redevelopment Agency's property located at 805 West Atlantic Avenue for the next two (2) years (May 2015) came before the City Commission on May 7, 2013. 2. The Applicant and City staff presented documentary evidence and testimony to the City Commission pertaining to the waiver request to allow the installation of four (4) artistic banners (5' x 30) to the existing fence of the Community Redevelopment Agency's property located at 805 West Atlantic Avenue for the next two (2) years (May 2015). All of the evidence is a part of the record in this case. Required findings are made in accordance with Subsection I. I+►yl -11040 Pursuant to LDR Section 2.4.7(6)(5), prior to granting a waiver, the approving body shall make a finding that the granting of the waiver: (a) Shall not adversely affect the neighboring area; (b) Shall not significantly diminish the provision of public facilities; (c) Shall not create an unsafe situation; and, (d) Does not result in the grant of a special privilege in that the same waiver would be granted under similar circumstances on other property for another applicant or owner. A. Waiver Request: A waiver to LDR Section 4.6.5(D), to allow the installation of four (4) artistic banners (5' x 30) to the existing fence of the Community Redevelopment Agency's property located at 805 West Atlantic Avenue for the next two (2) years (May 2015). City Commission Meeting on May 7, 2013; Item 9.A. Does the waiver request to allow the installation of four (4) artistic banners (5' x 30') to the existing fence of the Community Redevelopment Agency's property located at 805 West Atlantic Avenue for the next two (2) years (May 2415) meet all the requirements of 2.4.7(6)(5)? Yes ✓ No 3. The City Commission has applied the Comprehensive Plan and LDR requirements in existence at the time the original development application was submitted and finds that its determinations set forth in this Order are consistent with the Comprehensive Plan. 4. The City Commission finds there is ample and competent substantial evidence to support its findings in the record submitted and adopts the facts contained in the record including but not limited to the staff reports, testimony of experts and other competent witnesses supporting these findings. 5. Based on the entire record before it, the City Commission approves ✓ denies the waiver requests to LDR Section 4.6.5(D). 6. Based on the entire record before it, the City Commission hereby adopts this Order this 7th day of May, 2013, by a vote of 5 in f or and 0 opposed. r . Glickstein., Mayor ATTEST: �N� �) - ��) ",4� - Chevelle Nubin, City Clerk 4 City Commission Meeting on May 7, 2013; Item 9.A. IN THE CITY COMMISSION CHAMBERS OF THE CITY OF DELRAY BEACH, FLORIDA ORDER OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA WAIVER REQUEST FOR HYATT PLACE 1. This waiver request came before the City Commission on May 7, 2013. 2. The Applicant and City staff presented documentary evidence and testimony to the City Commission pertaining to the waiver request for Hyatt Place. All of the evidence is a part of the record in this case. Required findings are made in accordance with Subsection I. I. WAIVER: Pursuant to LDR Section 2.4.7(B)(5), prior to granting a waiver, the approving body shall make a finding that the granting of the waiver: (a) Shall not adversely affect the neighboring area; (b) Shall not significantly diminish the provision of public facilities; (c) Shall not create an unsafe situation; and, (d) Does not result in the grant of a special privilege in that the same waiver would be granted under similar circumstances on other property for another applicant or owner. A. Waiver to LDR Section 4.3.3(V)(2)(c)(1) Pursuant to LDR Section 4.3.3(V)(2)(c)(1), a written request to establish a stand -alone bar will be valid for a period not to exceed 6 months. The applicant is asking for a waiver to allow an extension of the time frame from April, 2013 to October, 2013. Should the waiver to Section 4.3.3(V)(2)(c)(1) be granted? Yes ✓ No 3. The City Commission has applied the Comprehensive Plan and LDR requirements in existence at the time the original development application was 1 May 7, 2013 City Commission Meeting; Item 9.8. submitted and finds that its determinations set forth in this Order are consistent with the Comprehensive Plan. 4. The City Commission finds there is ample and competent substantial evidence to support its findings in the record submitted and adopts the facts contained in the record including but not limited to the staff reports, testimony of experts and other competent witnesses supporting these findings. 5. Based on the entire record before it, the City Commission approves ✓ denies the waiver request. 6. Based on the entire record before it, the City Commission hereby adopts this Order this 7th day of May 2013, by a vote of 5 in favor and 0 opposed. 2 . --- ATTEST: r Glickstein, Mayor Chevelle Nubin, City Clerk 2 May 7, 2013 City Commission Meeting; Item 9.8. IN THE CITY COMMISSION CHAMBERS OF THE CITY OF DELRAY BEACH, FLORIDA ORDER OF THE CITY COMMISSION REGARDING THE WAIVER REQUESTS FOR COMMUNITY REDEVELOPMENT AGENCY'S PARKING LOT 1. These waiver requests came before the City Commission on May 7, 2013. 2. The Applicant and City staff presented documentary evidence and testimony to the City Commission for the consideration of two waivers in connection with the 46 SW 9th Avenue Community Redevelopment Agency Parking Lot. All of the evidence is a part of the record in this case. Required findings are made in accordance with Subsection I. I. WAIVERS: Pursuant to LDR Section 2.4.7(B)(5), prior to granting a waiver, the approving body shall make a finding that the granting of the waiver: (a) Shall not adversely affect the neighboring area; (b) Shall not significantly diminish the provision of public facilities, (c) Shall not create an unsafe situation; and, (d) Does not result in the grant of a special privilege in that the same waiver would be granted under similar circumstances on other property for another applicant or owner. A. Waiver to Reduce the Width of the Point of Access to the Street of the Parking Lot Driveway Pursuant to LDR Section 4.6.9(D)(3)(b) the point of access to a street or alley shall not be less than 24' for a parking lot driveway aisle. The Applicant has requested to reduce the width of the point of access to the street of the parking lot driveway from the required 24' to the proposed 22' for the portion of the parking lot located adjacent to SW 1 oth Avenue. Should the waiver to reduce the width of the point of access to the street of the parking lot driveway from the required 24' to the proposed 22' for the portion of the parking lot located adjacent to SW 10th Avenue be granted? Yes ✓ No 1 City Commission Meeting on May 7, 2013; Item 9.C. B. Waiver to Reduce the Drive Aisle Width with Perpendicular Parking Pursuant to LDR Section 4.6.9(D)(4)(d) the required width of a drive aisle with perpendicular parking is 24'. The Applicant has requested to reduce the drive aisle width with perpendicular parking from the required 24' to the proposed 22' for that portion of the parking lot located adjacent to SW 10th Avenue. Should the waiver to reduce the drive aisle width with perpendicular parking from the required 24' to the proposed 22' for that portion of the parking lot located adjacent to SW 10th Avenue be granted? Yes ✓ No 3. The City Commission has applied the Comprehensive Plan and LDR requirements in existence at the time the original development application was submitted and finds that its determinations set forth in this Order are consistent with the Comprehensive Plan. 4. The City Commission finds there is ample and competent substantial evidence to support its findings in the record submitted and adopts the facts contained in the record including but not limited to the staff reports, testimony of experts and other competent witnesses supporting these findings. 5. Based on the entire record before it, the City Commission approves ✓ denies the waiver requests. 6. Based on the entire record before it, the City Commission hereby adopts I this Order this 7th day of May, 2013, by a vote of 5,—[nMavorand 0 opposed. QVY ATTEST: C y D.: lickstein, Mayor Chevelle Nubin, City Clerk 6 City Commission Meeting on May 7, 2013; Item 9.C. IN THE CITY COMMISSION CHAMBERS OF THE CITY OF DELRAY BEACH, FLORIDA ORDER OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA WAIVER REQUEST FOR THE SUNTRUST BANKICHICK -FIL -A PROJECT 1. These waiver requests came before the City Commission on May 7, 2013. 2. The Applicant and City staff presented documentary evidence and testimony to the City Commission pertaining to the waiver request for the SunTrust Bank/Chick -fil -A project at the southwest corner of Federal Highway and Linton Boulevard. All of the evidence is a part of the record in this case. Required findings are made in accordance with Subsection I. I. WAIVERS: Pursuant to LDR Section 2.4.7(6)(5), prior to granting a waiver, the approving body shall make a finding that the granting of the waiver: (a) Shall not adversely affect the neighboring area; (b) Shall not significantly diminish the provision of public facilities; (c) Shall not create an unsafe situation; and, (d) Does not result in the grant of a special privilege in that the same waiver would be granted under similar circumstances on other property for another applicant or owner. A. Waiver to LDR Section 4.4.12(F)(2 Pursuant to LDR Section 4.4.12(F)(2), any free - standing structure shall have a minimum floor area of 6,000 square feet; shall be architecturally compatible with other structures, shall take access from the interior circulation system of the development and shall be able to meet all code requirements if it were to be situated on an outparcel. Architectural compatibility shall be determined pursuant to Section 4.6.18. The applicant is asking for a waiver to allow a free - standing building to have a minimum floor area of less than 6,000 square feet. Should the waiver to Section 4.4.12(F)(2) be granted? Yes ✓ No 1 City Commission Meeting on May 7, 2013; Item 9.D. B. Waiver to LDR Section 4.6.9(D)(3)(c)(1 Pursuant to LDR Section 4.6.9(D)(3)(c)(1), the minimum stacking distance between a right -of -way and the first parking space or aisle way in a parking lot that contains 51 or more spaces is fifty feet (50'). The applicant is asking for a waiver to reduce the stacking distance to forty feet (40') from Linton Boulevard and thirteen feet (13') from Federal Highway. Should the waiver to Section 4.6.9(D)(3)(c)(1) be granted? Yes ✓ No 3. The City Commission has applied the Comprehensive Plan and LDR requirements in existence at the time the original development application was submitted and finds that its determinations set forth in this Order are consistent with the Comprehensive Plan. 4. The City Commission finds there is ample and competent substantial evidence to support its findings in the record submitted and adopts the facts contained in the record including but not limited to the staff reports, testimony of experts and other competent witnesses supporting these findings. 5. Based on the entire record before it, the City Commission approves ✓ denies the waiver request. 6. Based on the entire record before it, the City Commission hereby adopts this Order this 7th day of May 2013, by a vote of ATTEST: Chevelle Nubin, City Clerk 2 r and 0 opposed. lickstein, Mayor City Commission Meeting on May 7, 2013; Item 9.D. MAY 21, 2013 A Regular Meeting of the City Commission of the City of Delray Beach, Florida, was called to order by Mayor Cary Glickstein in the Commission Chambers at City Hall at 6:00 p.m., Tuesday, May 21, 2013. 1. Roll call showed: Present- Commissioner Shelly Petrolia Commissioner Alson Jacquet Commissioner Adam Frankel Commissioner Angeleta E. Gray Mayor Cary Glickstein Absent - None Also present were - Louie Chapman, Jr., City Manager Brian Shutt, City Attorney Chevelle D. Nubin, City Clerk 2. The opening prayer was delivered by Dr. W. Douglas Hood, Jr., Senior Pastor with First Presbyterian Church of Delray Beach. 3. The Pledge of Allegiance to the flag of the United States of America was given. At this point, Mayor Glickstein stated he would like to observe a moment of silence for the victims in Oklahoma. 4. APPROVAL OF MINUTES: Mrs. Petrolia moved to approve the Minutes of the Regular Meeting of April 16, 2013, seconded by Mrs. Gray. Upon roll call the Commission voted as follows: Mr. Jacquet — Yes; Mr. Frankel — Yes; Mrs. Gray — Yes; Mayor Glickstein — Yes; Mrs. Petrolia — Yes. Said motion passed with a 5 to 0 vote. 5. PRESENTATIONS: 5.A. Life Saving Award Presentation recognizing Jude Diaz and Rachael Diaz Danielle Connor, Fire Chief, presented plaques to the Diaz Family recognizing Jude Diaz and Rachael Diaz. 05/21/13 S.B. Remnizin2 and commending Delray Medical Center for being designated as a Level 1 Trauma Center by the State of Florida Mayor Glickstein presented this item and Mr. Mark Bryan came forward and gave a few brief comments. 6. Comments and Inquiries on Agenda and Non - Agenda Items from the Public Immediately Following Presentations 6.A. City Manager's response to prior public comments and inquiries. The City Manager had no response to prior public comments and inquiries. 6.B. From the Public. 6.B.1. Steve Blum, Antilles Homeowners' Association, 115 Venetian Drive Unit "C ", Delray Beach, FL 33483, stated starting in 2007 the previous City Manager rubber stamped a yearly survey costing the City approximately $11,000 annually and asked the new City Manager to not to continue that wasteful practice for the following reasons: (1) the City was to receive an accurate statistically balanced survey weighted to reflect the proper demographic composition of the entire community which was not done and they showed 88% of the population is registered to vote and 85% voted in the last election and that is over ten times the real numbers obtained from public records, (2) from 2007 -2013 yearly changes were miniscule and fell within the margin of error so as to make accurate trending impossible, (3) the survey results are to be used for community planning and resource allocation, etc. and even when focusing on areas specific to Delray Beach he found no useful information and the only value would be to falsely show others Delray cares about their citizens, (4) comparing Delray to university towns, farming communities, and factory towns, etc. is like comparing a shoelace to a piece of spaghetti. Mr. Blum stated using the tax dollars to enhance the Town Hall meetings would be a much better choice and a much more reliable one. 6.B.2. Mitzi Kaetz, 110 N.E. 6th Street, Delray Beach, FL 33445 (speaking on behalf of S.A.F.E.), stated in February 2012 the City asked for citizen input on 2012 infrastructure improvements and S.A.F.E. offered 14 suggestions and one of those suggestions pointed out that several ped signals on Atlantic Avenue were not accessible and cited the ped signal on the southeast corner of S.E. 4th Avenue. On March 6, 2013 in an email to the Planning and Zoning staff, S.A.F.E. elaborated that the ped signals on both east 2nd Avenues and east 4th Avenues did not appear to be compliant with the American Disabilities Act. On December 12, 2012, in the City report to the Planning and Zoning Board the City stated that this is a maintenance issue that will be handled by Public Works but no action has been taken. Ms. Kaetz stated she and another S.A.F.E. member conducted their own study of ped signals primarily along Atlantic Avenue from A -1 -A to Swinton Avenue. Ms. Kaetz briefly reviewed S.A.F.E.'s report and identified numerous items and distributed S.A.F.E.'s report with photos to the City Manager and Mayor Glickstein. She suggested that the City should undertake its own study to 2 05/21/13 determine how ped signals can become ADA compliant and how pedestrian safety and use may be best encouraged. 6.11.3. Marto Vinik, 824 La2o Road, Delray Beach, FL 33445, stated the City of Delray Beach began fluoridating its water in 1991 because certain information was not readily available over the internet. Ms. Vink stated according to a 1996 United States public health service study of the dental records of 39,000 children ages 5 -17 from 84 areas in the United States Water Fluoridation is not effective in reducing tooth decay. She stated a New Zealand Department of Health Study done on 60,000 children ages 12- 13 also showed water fluoridation has no effect on tooth decay. Ms. Vinik read into the record a brief statement regarding the alleged health risks associated with water fluoridation. She urged the City of Delray Beach to discontinue water fluoridation immediately. 6.11.4. Christina Morrison, 2809 Florida Boulevard #207, Delray Beach, FL 33483, stated Item 8.G. and Item 9.C. on the Agenda concern the finances of the City and asked if those items were presented to the Financial Review Board (FRB) for discussion before tonight's agenda. In addition, Ms. Morrison stated the budget issue that was voted on a few weeks ago had not been discussed with FRB either. Ms. Morrison stated if the FRB is not going to be used properly she asked the Commission to disband it and not waste the Board members' time. Mayor Glickstein thanked Lula Butler, Janet Meeks, and Commissioner Gray for organizing last night's Youth Town Hall Meeting with over 200 kids mostly middle school and high school. Mr. Frankel also commended Rich Reade and Elizabeth Burrows. 7. AGENDA APPROVAL. The City Attorney requested that Item 10.A., Ordinance No. 10 -13, be moved to a date certain of June 4, 2013 at 7:00 p.m. Mrs. Petrolia requested that Item 8.K.3., Award of Bids and Contracts, of the Consent Agenda be moved to the Regular Agenda as Item 9.A.A. Mrs. Gray moved to approve the Agenda as amended, seconded by Mr. Frankel. Upon roll call the Commission voted as follows: Mr. Frankel — Yes; Mrs. Gray — Yes; Mayor Glickstein — Yes; Mrs. Petrolia — Yes; Mr. Jacquet — Yes. Said motion passed with a 5 to 0 vote. 8. CONSENT AGENDA: City Manager Recommends Approval. 8.A. FINAL SUBDIVISION PLAT APPROVAL /GULFSTREAM VILLAS AT HERITAGE LANDINGS: Approve a final plat for a proposed fifteen (15) unit townhouse development being platted as Gulfstream Villas at Heritage Landings, located at the southwest corner of Gulfstream Boulevard and Webb Avenue. 3 05/21/13 8.B. REQUEST FOR A SIDEWALK DEFERRAL /511 SEAGATE DRIVE: Approve an agreement to defer installing a sidewalk along Seagate Drive for the property located at 511 Seagate Drive. 8.C. PAYMENT/ CSX TRANSPORTATION, INC. (CSXT): Approve a payment to CSX Transportation, Inc., (CSXT) in the amount of $56,263.00 for additional costs related to the reconstruction of the S.W. 10th Street railroad crossing. Funding is available from 334 - 3162 -541 -46.90 (General Construction Fund: Repair & Maintenance Services /Other Repair/Maintenance Costs). 8.D. MODIFICATION TO THE JOINT PARTICIPATION AGREEMENT (JPA)/ FLORIDA DEPARTMENT OF TRANSPORTATION (FDOT)/ DOWNTOWN ROUNDABOUT TROLLEY: Approve a modification to the Joint Participation Agreement (JPA) for the Florida Department of Transportation (FDOT) to provide additional grant funding for the Downtown Roundabout Trolley. 8.E. INTERLOCAL AGREEMENT/ SOUTH FLORIDA REGIONAL TRANSPORTATION AUTHORITY, (SFRTA): Approve an Interlocal Agreement with the South Florida Regional Transportation Authority (SFRTA), to accept grant funding in an amount not to exceed $75,000.00 per year for two (2) years for the Downtown Roundabout Shuttle Bus service. 8.F. AGREEMENT /ACHIEVEMENT CENTERS FOR CHILDREN AND FAMILIES (ACCF): Approve an agreement between the City and the Achievement Centers for Children and Families (ACCF) in an amount not to exceed $120,000.00 for a summer camp with reading enhancements to help further third grade reading proficiency through the campaign for grade level reading. Funding is available from 118- 1931 -562- 82.09 (Neighborhood Services: Aid to Private Organization /Community Child Care Center). 8.G. RESOLUTION NO. 29 -13: Approval to amend Resolution No. 47 -08, adopted by the City Commission on September 16, 2008, authorizing the issuance of City of Delray Beach, Florida Revenue Improvement Bonds, Series 2008 (Taxable) (the "Bonds ") for the sole purpose of extending the final maturity of the bonds to September 1, 2013; authorizing the proper officers of the City of Delray Beach, Florida to do all things deemed necessary or advisable in connection with such amendment. The caption of Resolution No. 29 -13 is as follows: A RESOLUTION OF THE CITY COMMISSION (THE "COMMISSION ") OF THE CITY OF DELRAY BEACH, FLORIDA, AMENDING RESOLUTION NO. 47 -08, ADOPTED BY THE COMMISSION ON SEPTEMBER 16, 2008, AUTHORIZING THE ISSUANCE OF DELRAY BEACH, FLORIDA REVENUE IMPROVEMENT BONDS, SERIES 2008 (TAXABLE) (THE `BONDS ") FOR THE SOLE PURPOSE OF 4 05/21/13 EXTENDING THE FINAL MATURITY OF THE BONDS TO SEPTEMBER 1, 2013; AUTHORIZING THE PROPER OFFICERS OF THE CITY OF DELRAY BEACH, FLORIDA TO DO ALL THINGS DEEMED NECESSARY OR ADVISABLE IN CONNECTION WITH SUCH AMENDMENT; AND PROVIDING FOR AN EFFECTIVE DATE. (The official copy of Resolution No. 29 -13 is on file in the City Clerk's office.) 8.H. SPECIAL EVENT REQUEST/ 4TH OF JULY FESTIVITIES: Approve a special event request for the 4th of July Festivities, including granting a temporary use permit per LDR Section 2.4.6(F) for the closure of Atlantic Avenue from the east side of N.E. /S.E. 7th Avenue to Ocean Boulevard, and from the south side of Thomas Street to the north side of Miramar on Ocean Boulevard from 2:00 p.m. to midnight; to waive Code of Ordinances Sections 101.25, "Commercial Enterprises ", and 101.32 "Assemblies" to allow assembly on the beach and vendors; to allow all beach parking lots to remain open until approximately midnight; and to approve staff support for security and traffic control, street barricading and banner hanging, large stage set up and use, EMS support, use of City generator, signage, and clean up and trash removal. 8.I. PROCLAMATIONS: 1. Civility Month — May 2013 2. Knights of Pythagoras Mentoring Network's Ladies of Distinction Day — May 11, 2013 3. CJ Foundation —May 11, 2013 4. National Emergency Medical Services Week — May 19 -25, 2013 5. Water Reuse Week — May 19 -25, 2013 6. National Public Works Week — May 19 -25, 2013 7. National Missing Children's Day — May 25, 2013 8. Juneteenth — June 15, 2013 8_J. REVIEW OF APPEALABLE LAND DEVELOPMENT BOARD ACTIONS: Accept the actions and decisions made by the Land Development Boards for the period May 6, 2013 through May 17, 2013. 8.K AWARD OF BIDS AND CONTRACTS: 1. Bid award to Lawn Wizard in the amount of $63,449.00 for landscape maintenance at three (3) I -95 Interchanges. Funding is 5 05/21/13 available from 119 - 4144 -572 -46.40 (Beautification Trust Fund: Repair & Maintenance Services/Beautification Maintenance). 2. Bid award to Rust Wizard, Inc. in an amount not to exceed of $43,000.00 for anti -rust chemicals in the City's irrigation systems. Funding is available from 119 - 4144 -572 -52.21 (Beautification Trust Fund: Operating Supplies /Chemicals). 3. THIS ITEM HAS BEEN MOVED TO THE REGULAR AGENDA AS ITEM 9.A.A. 4. Purchase award to International Surveillance Technology, Inc. in the amount of $188,336.37 for replacement of the aging covert surveillance vehicle. Funding is available from 501- 3312 -591- 64.25 (Garage Fund: Machinery/Equipment Heavy 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 Glickstein — Yes; Mrs. Petrolia — Yes; Mr. Jacquet — Yes; Mr. Frankel — Yes. Said motion passed with a 5 to 0 vote. 9. REGULAR AGENDA: 9.A.A. AWARD OF BIDS AND CONTRACTS: to multiple vendors in the amount of $1,468,363.00 for the purchase of forty -four (44) replacement vehicles and the installation of equipment in thirty -one (3 1) of those replacement vehicles. Funding is available from 501- 3312 -591 -64.20 (Garage Fund: Machinery/Equipment/Automotive) and 501- 3312 -591 -64.25 (Garage Fund: Machinery /Equipment/Heavy Equipment). Randal Krejcarek, City Engineer, stated this is the annual purchase for fleet vehicles. Mrs. Petrolia stated she asked that this item be moved from the Consent Agenda to the Regular Agenda because she is unfamiliar with the age of the fleet. She stated the City just had a ten (10) vehicle replacement with the Police Department and would like the ability to become more educated and understand this better since this is about a $1.5 million expenditure on top of approximately $800,000. Mr. Krejcarek stated the fleet is approximately 530 vehicles or so and approximately 10 -15% gets replaced every year. He stated the City looks at mileage, maintenance costs and explained that the spreadsheet in the agenda backup shows the vehicles that are being replaced, the year that they were purchased, the purchase price, how much the City spent since the purchase to date on maintenance and what percentage that maintenance is of the original purchase cost. Mr. Krejcarek stated the majority of the cars have 100,000 miles on them and the use of the vehicle is also looked at. He stated through the use of the vehicle sometimes they require more maintenance because of the type of vehicle they are. Mr. Krejcarek stated this year in the CIP there will be a line item for vehicle replacement and rehabilitation. He stated when the application is appropriate staff looks at alternative fuel 6 05/21/13 vehicles. Mr. Krejcarek stated if it is a heavy duty police vehicle or a construction vehicle they are not going to go in with an electric car. The City Manager stated the first purchase the City did was primarily Chevrolet vehicles and that purchase was timed based on the expiration of a bid price and this vehicle has more Ford type vehicles that had a longer timeline attached to them. The City Manager reiterated that they were broken up to take advantage of the purchase price that was available for the GM products versus the Ford products now. Mrs. Petrolia asked what happens to the vehicles after they are no longer being used. Mr. Krejcarek stated the vehicles are auctioned and the City receives more through the auction process than they do if they were to trade them in which goes back into the General Fund. Mayor Glickstein stated there have been some offers to build some fueling stations in town and asked if there has been any dialogue about that. Mr. Krejcarek stated there was discussion at one time about constructing a fueling station west of Delray Beach (441). Mr. Krejcarek stated in the past when the City tried to purchase alternative fuel vehicles they ended up having to go to West Palm Beach to fuel. Mr. Krejcarek stated as the stations come on the City will have more opportunity. Mayor Glickstein asked if with that type of fueling station in terms of asking someone to look at the city and maybe there is another location to build that if there is some understanding that future fleet purchases would use that fuel source. Brief discussion between Mr. Krejcarek and Mayor Glickstein continued. Mayor Glickstein asked if this was a piggyback contract in the sense of the State bid system where staff was able to achieve some scale economies on the purchase by adding this to other municipality purchases or was it a stand -alone purchase. Mr. Krejcarek stated these were purchases that utilized current contract prices that were not based on the City's volume being added to their volume but it was based on their volume alone. Mr. Frankel moved to approve Item 9.A.A. (formerly Item 8.K.3.), seconded by Mrs. Gray. Upon roll call the Commission voted as follows: Mayor Glickstein — Yes; Mrs. Petrolia — Yes; Mr. Jacquet — Yes; Mr. Frankel — Yes; Mrs. Gray — Yes. Said motion passed with a 5 to 0 vote. 9.A. WAIVER REQUEST/ ED MORSE CADILLAC: Consider approval of a waiver request to Section 2.4.6(F), "Temporary Use Permit ", to allow a temporary office trailer for Ed Morse Cadillac, located at 2300 South Federal Highway. (Quasi - Judicial Hearing) Mayor Glickstein read the City of Delray Beach Quasi - Judicial rules into the record for this item and all subsequent Quasi - Judicial items. Mayor Glickstein asked the Commission to disclose their ex parte communications. The Commission had no ex parte communications to disclose. 7 05/21/13 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 #2013 -122 into the record. Mr. Dorling stated this is a waiver request associated with an approval for a temporary trailer for the Ed Morse Cadillac site and is located on the west side of Federal Highway across from Delray Plaza. He stated there was a recent application which involved tearing down this facility and doing some changes. Mr. Dorling stated that was considered by SPRAB on October 24, 2012, for a Class III site plan modification which involved modification and reconfiguration of a parking area and construction of a 4,150 square foot drop -off customer service canopy and renovation of the existing service center and showroom offices. Mr. Dorling stated Ed Morse Cadillac is now requesting approval to place a 1,440 square foot temporary trailer in the area immediately south of the existing sales office to house sales staff while the main showroom office is going through renovations. He stated this has to go through a waiver process because in the LDRs under LDR Section 2.4.6(F), Temporary Use Permit, which can be issued but this is not one of those uses that is identified as a temporary use option. Mr. Dorling stated the Commission is waiving those to include this office under that temporary use section and granting that waiver and allowing this to be placed onsite. Mr. Dorling stated there is a reference in the conditions that four (4) parking spaces be temporarily relocated; because of the location of the trailer those do not function and when this is removed they would be reinstalled and would function appropriately. Staff recommends approval subject to conditions 1 -4 in the staff report. Chris Barry, Jon E. Schmidt & Associates for Morse Operations (applicant), stated they agree with staff's determination and they are in agreement with the conditions of approval. Christina Morrison, 2809 Florida Boulevard #207, Delray Beach, FL 33483, briefly spoke in favor of the project and urged the Commission to support. There was no cross - examination or rebuttal. The City Attorney briefly reviewed the Board Order with the Commission who made findings according to their consensus (attached hereto is a copy and made an official part of the minutes). Mr. Jacquet moved to adopt the Board Or seconded by Mrs. Gray. Upon roll call the Commission Glickstein — Yes; Mrs. Petrolia — Yes; Mr. Jacquet — Yes; Mr — Yes. Said motion passed with a 5 to 0 vote. Or( approving the waiver, voted as follows: Mayor . Frankel — Yes; Mrs. Gray 05/21/13 9.B. UTILITY SERVICE LINE WARRANTY PROGRAM AGREEMENT, RESIDENT LETTER & FEES: Consider approval of the proposed Agreement with Utility Service Partners (d /b /a Service Line Warranties of America) to offer a voluntary utility service line warranty program to homeowners. The City Manager urged the Commission not to vote in favor of it primarily because it asks that the City endorse a service in the form of the use of the City's logo and accept a fee in exchange for that logo service. The City Manager stated they are free to offer the service without the City logo but it makes it appear that the City has endorsed it as a product. Mrs. Gray stated she thought it would be helpful to the residents. The City Manager stated as a business they are free to offer the service to people but he feels they are asking the City to endorse in the form of having our logo on their stationery. The City Manager stated he strongly objects to this because it would set a terrible precedent. The City Manager stated the Environmental Services statistics say that only 4% of the households in Delray Beach have a problem in this portion of their yard and if you are one of those 4% it can be costly but it is not a problem that is experienced by the vast majority of people in the city. Mr. Jacquet stated he did not have a problem with this company offering their services but expressed concern about the idea of having the City's logo being placed on a private company's letter to the residents as if the City is endorsing that particular company and believes this is bad business practice. Mr. Jacquet moved to deny, seconded by Mrs. Petrolia. Upon roll call the Commission voted as follows: Mrs. Petrolia — Yes; Mr. Jacquet — Yes; Mr. Frankel — Yes; Mrs. Gray — Yes; Mayor Glickstein — Yes. Said motion to DENY was passed with a 5 to 0 vote. 9.C. PROPOSAL/PUBLIC FINANCIAL MANAGEMENT GROUP: Consider a proposal with Public Financial Management (PFM) Group for Budget Model Forecasting. Funding is available from 334 - 6111 -519 -66.10 (General Construction Fund: Books/Publications /Software). David Boyd, Finance Director, stated the new City Manager is going to handle the budget process in a different way which primarily means that he as the Finance Director will be doing it. Mr. Boyd stated in order for him to take the information and narrow it down into a balanced budget to bring to the City Manager and the Commission the first time staff has to have the proper tools. Mr. Boyd stated the existing budget model that the City has is 30 years old and it is built into the financial reporting system the City has and possesses very limited capabilities. Mr. Boyd stated staff essentially enters data into it and print it out and there is no running surplus deficit numbers. Mr. Boyd stated there is no multi -year of revenues and expenses so if you are making a decision today on something that is going to add an expense to the bottom line 9 05/21/13 you do not know three years from now what that affect is going to be and there are no "what if' scenarios or comparisons. Mr. Boyd stated there are no graphical capabilities in the City's current system. He stated staff is looking at this system that they are asking Commission to approve it as a temporary tool that can be used as a bridge between what we have now and what we will have two years in the future. Mr. Boyd stated it will be approximately two years before the budget module will be up and running. Mr. Boyd stated this system will allow everyone involved in the budget process to get acclimated to a new way of putting a budget together and without some tool that allows you to project and run "what if' scenarios it is hard to move to a new type of budget process from the one that we currently have. Mr. Boyd stated staff currently does not have that tool and requested the Commission approve this purchase. The City Manager stated staff is in the process of taking proposals on acquisition of a new financial system but does not feel they should hold their reform of the budgetary process for the one plus years that it is going to take to implement that system. The City Manager stated staff would like to make the reforms in the upcoming budget year and urged the Commission to approve this as a sole source contract. He stated there are not a whole lot of places that staff can go that can give us the product that we need in the timeline that staff is asking to have that accomplished in. The City Manager stated staff will probably get two budget years out of it while staff is doing the overall financial system and it would end up being an excellent expenditure. Mrs. Petrolia asked how staff found Public Financial Management (PFM). Mr. Boyd stated he attended an 8 hour seminar and PFM was one of the presenters. Mrs. Petrolia asked how quickly will this be up and running. Mr. Boyd stated you can actually use the 5 year capability of it because that way if you are making a decision that is going to have a reaching impact you can see what that impact will be. He stated this goes beyond the 2 years and staff will incorporate into the new budget module. Mrs. Petrolia clarified that with regards to Ms. Morrison's question about not talking to the Financial Review Board (FRB) about this was because of the immediacy and that this is the sole source. Mr. Jacquet asked how much the permanent program will be. Mr. Boyd stated this will be up to $80,000. Mr. Jacquet asked how much the City will be spending after these two years to have something concrete in place that we will be using on a regular basis annually. Mr. Boyd stated that will be part of a larger package and will be the annual maintenance costs. Mr. Jacquet asked staff to explain why this is sole source. The City Attorney stated the immediacy maybe should not be a factor that the Commission can consider for sole source. Mr. Boyd stated this is something that they have the basic framework built and they have to customize it for the City's particular needs. The City Manager stated usually the package interfaces with the main financial package and this is a unique one that allows the City to purchase it as a free - standing item. 10 05/21/13 It was the consensus of the Commission to give direction to staff to go ahead and come back with a contract on June 4, 2013 and confirm how other people had also dealt with this and get some better information on the sole source aspect of this. 9.D. OFFICE OF INSPECTOR GENERAL: Discuss a lawsuit filed against Palm Beach County contesting the funding mechanism the County set up for the Inspector General. The City Attorney stated this item has been placed on the agenda primarily because the City has received criticism for being a party to this lawsuit. The City Attorney stated Delray Beach joined this lawsuit with 14 other municipalities and noted that the City was not contesting the formation of the Inspector General (IG) but it was the funding of the IG. He stated some of the ordinances the County had in place or had to go along with the ballot language that they had passed that was approved by the voters talked about a 2.5% funding a contract fee that was based on contracts that the City would let out and that fee would be attached to those contracts and then the City would remit that fee back to the IG and that would help fund the IG. The City Attorney stated what the County requested is that municipalities report all their operating expenses and other expenditures to the State and there is one lump sum of money. The City Attorney stated the City will look at the IG budget and then assess how much money is paid and that is your percentage of whatever the IG funding is. The City Attorney stated this could have been for any funding mechanism that they wanted to attach it to because in the City's opinion that is an unlawful tax; they do not have the ability to say here is what we are going to do and we are also going to bill the municipalities. The City Attorney stated he believes this aspect of it was not approved by the voters and this is what the City is challenging. The City Attorney recommends that the City continue in the lawsuit at this time and not change our position. For the record, Mr. Frankel read part of the article from today stated by Mr. McMahon with the County Attorney's office "The Palm Beach County Attorney's office admitted that the idea of sending a separate bill to the cities has never been done. This County has never imposed a fee on the cities for a county -wide program. It has never been done by this County. No other County that anyone has cited to the court in this litigation has ever imposed a fee to its cities." Mrs. Gray stated out of these 14 municipalities have any of them decided not to continue the course. The City Attorney stated initially there were 15; Wellington decided to drop out of the lawsuit several months ago and the County had sent out bills and Wellington initially paid those bills but then decided to join the lawsuit. The City Attorney stated it is his understanding that there was a change in the make -up of the Wellington City Commission and they voted to withdraw from the lawsuit. Mr. Jacquet stated he was not part of the Commission that filed suit against the County and he does not believe that the residents should be paying twice for the IG service. Mr. Jacquet fully supports the taxpayers' decisions for the IG. 11 05/21/13 For the benefit of the public, Mayor Glickstein stated the City is all for the Office of the Inspector General and all that it represents in terms of another set of eyes and ears as to government procurement. He stated it is not about the policy or the validity of the office but it is about how to pay for it. Mrs. Petrolia asked if the IG still offers their services to us even though the City is still in this lawsuit. 9.E. CITY MANAGER EVALUATION The City Attorney stated March 2012 the Commission amended its local rules. He stated at the time former Mayor Carney discussed that on the other boards there has always been a review of the Executive Director on an annual basis. In this particular case, the City Attorney stated even though both the City contracts call for a review he believes it has to be done by August sometime. He stated the local rules were amended to provide that the City Commission shall evaluate the City Manager and the City Attorney in the month of May. Mayor Glickstein stated Mr. Chapman came into a city where the methodologies and operating procedures were antiquated. Mayor Glickstein stated he has been very impressed with Mr. Chapman's ability to assimilate various operations, get a handle on where we are, and most importantly pointing out the operating deficiencies and solutions to those deficiencies very quickly. Mayor Glickstein stated he is impressed with Mr. Chapman's ability to move the City forward and he is looking forward to how he has realigned the hierarchy of the city as to more of a corporate model where this Commission is now functioning as a Board of Directors; and, the City Manager as a Chief Operating Officer /Senior Operating Officer interfacing with staff in that the Board of Directors as would be the case in a more typical corporation would have very little or no involvement with staff in that the City Manager is assigning duties to people that have not been utilized to their full extent (i.e. Mr. Boyd). Mr. Jacquet echoed comments expressed by Mayor Glickstein and commended the City Manager for being very hands on. Mr. Jacquet commended Mr. Chapman for what he has done so far and he has everyone understanding what their positions are and getting the strengths out of them and looks forward to the budgetary process. Mrs. Petrolia stated she feels the same way but she is new as is the City Manager. Mrs. Petrolia stated she has not had the opportunity to spend as much time with him as the Mayor has but so far so good. Mrs. Gray stated it has been an honor working with the new City Manager and he gets back with the Commission expeditiously by telephone or emails. She stated the evening the Commission hired Mr. Chapman she mentioned that he was the "cream of the crop" and still believes that today. 12 05/21/13 Mr. Frankel stated he respectfully disagrees with some of the comments regarding former City Manager David Harden. However, Mr. Frankel stated he agrees with all the comments expressed about the new City Manager and feels he has done a wonderful job. At this point, the time being 7:00 p.m., the Commission moved to the duly advertised Public Hearings portion of the agenda. 10. PUBLIC HEARINGS: 10.A. THIS ITEM HAS BEEN MOVED TO A DATE CERTAIN OF JUNE 4, 2013 AT 7:00 P.M. 9.F. CITY ATTORNEY EVALUATION Mayor Glickstein stated when he was hired as General Counsel for what was a large private company the CEO of that company who hired him sat him down and said "I want you to understand that you are here not to protect me as the CEO or Senior staff nor are you here to protect the Board of Directors but you are here to protect shareholders." Mayor Glickstein stated the City Attorney is here to protect the residents of this town and is not here to protect this Commission. Mayor Glickstein stated we should always be airing on the side of being very conservative in our positions given that we are dealing with substantial taxpayer money. Mayor Glickstein stated everyone has seen the amount of work that has come through the City Attorney's office and he feels that Mr. Shutt is responsible for shepherding that work through in a very expedient way. Mayor Glickstein stated the issues in the city are becoming more complex and he gives the City Attorney high marks in seeing that workload with a staff of three lawyers. Mayor Glickstein stated he looks at it in terms of what that dollar amount would be if the City were using outside counsel for that keeping in mind that they would probably not receive the personalized service and the quality of work the Commission gets now. Mayor Glickstein stated he asked the City Attorney to be more assertive in terms of if the Commission in discussion in a way that he perceives is not airing on the side of being the most conservative position possible that at least he weigh in and caution Commissioners in terms of the direction in which the discussion is going, and perhaps they may want to rethink that direction if it is not something that is so time sensitive. Mr. Frankel stated he spoke to the City Attorney and informed him that he did not have any issues with him or his staff. Mr. Frankel stated in the three plus years that Mr. Shutt has been the City Attorney he has not found a situation that he has not acted in the most conservative nature. He stated every year the City Attorney's office does a great job and the City Attorney and his staff continue to do so. Mrs. Gray stated as a business person she relies heavily on his professional opinion and she appreciates his calls every Tuesday and he has been wonderful with answering questions. She looks forward to continue to work with the City Attorney. 13 05/21/13 Mrs. Petrolia echoed comments expressed by Commissioner Gray and she appreciates how the City Attorney calls to make sure that the Commission knows what is going on and has proven to her invaluable. Mr. Jacquet applauds the City Attorney for his responsiveness and stated he understands the role of the City Attorney that you have to be conservative to protect the city. He stated he agrees that when discussions start to get off topic the City Attorney needs to chime in and bring them back to task. Mr. Jacquet stated the City Attorney is doing an excellent job and reiterated that Mr. Shutt is always available and always gets back to the Commission immediately with responses. 9.G. APPOINTMENT TO THE POLICE & FIREFIGHTERS RETIREMENT SYSTEM BOARD OF TRUSTEES: Appoint one (1) regular member to serve a two (2) year term ending April 22, 2015 to the Police & Firefighters Retirement System Board of Trustees. Based upon the rotation system, the appointment will be made by Commissioner Jacquet (Seat #2). Mr. Jacquet moved to reappoint Alan Kirschenbaum as a regular member to the Police & Firefighters Retirement System Board of Trustees to serve a two (2) year term ending April 22, 2015, seconded by Mr. Frankel. Upon roll call the Commission voted as follows: Mr. Jacquet — Yes; Mr. Frankel — Yes; Mrs. Gray — Yes; Mayor Glickstein — Yes; Mrs. Petrolia — Yes. Said motion passed with a 5 to 0 vote. 9.H. APPOINTMENT TO THE PUBLIC ART ADVISORY BOARD: Appoint one (1) regular member to the Public Art Advisory Board to serve an unexpired term plus a two (2) year term ending July 31, 2015. Based upon the rotation system, the appointment will be made by Commissioner Jacquet (Seat #2). Mr. Jacquet moved to appoint Patricia Truscello as a regular member to the Public Art Advisory Board to serve an unexpired term plus a two (2) year term ending July 31, 2015, seconded by Mr. Frankel. Upon roll call the Commission voted as follows: Mr. Frankel — Yes; Mrs. Gray — Yes; Mayor Glickstein — Yes; Mrs. Petrolia — Yes; Mr. Jacquet — Yes. Said motion passed with a 5 to 0 vote. 9_I. APPOINTMENT TO THE DELRAY BEACH HOUSING AUTHORITY: Appoint one (1) regular member to the Delray Beach Housing Authority to serve an unexpired term plus a four (4) term ending July 14, 2017. Based upon the rotation system, the recommendation for appointment will be made by Commissioner Jacquet (Seat #2). Mr. Jacquet moved to appoint Gaston Joseph as a regular member to the Delray Beach Housing Authority to serve an unexpired term plus a four (4) year term ending July 14, 2017, seconded by Mrs. Gray. Upon roll call the Commission voted as follows: Mrs. Gray — Yes; Mayor Glickstein — Yes; Mrs. Petrolia — Yes; Mr. Jacquet — Yes; Mr. Frankel — Yes. Said motion passed with a 5 to 0 vote. 14 05/21/13 9_J. APPOINTMENT TO THE POLICE ADVISORY BOARD: Appoint one (1) regular member to the Police Advisory Board to serve an unexpired term plus a two (2) year term ending July 31, 2015. Based upon the rotation system, the appointment will be made by Commissioner Jacquet (Seat #2). Mr. Jacquet moved to appoint Jack Chadam as a regular member to the Police Advisory Board to serve an unexpired term plus a two (2) year term ending July 31, 2015, seconded by Mr. Frankel. Upon roll call the Commission voted as follows: Mayor Glickstein — Yes; Mrs. Petrolia — Yes; Mr. Jacquet — Yes; Mr. Frankel — Yes; Mrs. Gray — Yes. Said motion passed with a 5 to 0 vote. 9.K APPOINTMENT TO THE FINANCIAL REVIEW BOARD: Appoint one (1) regular member to the Financial Review Board to serve an unexpired term plus a two (2) year term ending July 31, 2015. Based upon the rotation system, the appointment will be made by Commissioner Jacquet (Seat #2). Mr. Jacquet moved to appoint Joe Farkas as a regular member to the Financial Review Board (FRB) to serve an unexpired term plus a two (2) year term ending July 31, 2015, seconded by Mrs. Gray. Upon roll call the Commission voted as follows: Mrs. Petrolia — Yes; Mr. Jacquet — Yes; Mr. Frankel — Yes; Mrs. Gray — Yes; Mayor Glickstein — Yes. Said motion passed with a 5 to 0 vote. 9.L. APPOINTMENT TO THE DOWNTOWN DEVELOPMENT AUTHORITY: Appoint one (1) regular member to the Downtown Development Authority to serve an unexpired term ending July 1, 2014. Based upon the rotation system, the appointment will be made by Mayor Glickstein (Seat #5). Mayor Glickstein stated he would like to appoint David Beale as a regular member to the Downtown Development Authority to serve an unexpired term ending July 1, 2014. Mr. Frankel so moved, seconded by Mr. Jacquet. Upon roll call the Commission voted as follows: Mr. Jacquet — Yes; Mr. Frankel — Yes; Mrs. Gray — Yes; Mayor Glickstein — Yes; Mrs. Petrolia — Yes. Said motion passed with a 5 to 0 vote. 12. FIRST READINGS: A. None 13. COMMENTS AND INQUIRIES ON NON - AGENDA ITEMS. 13.A. City Manager items. The City Manager stated he had no comments or inquiries on non - agenda 15 05/21/13 B.B. City Attorney The City Attorney stated he appreciates all the kind words regarding his evaluation and publicly acknowledged the entire staff at the City Attorney's office. B.C. City Commission B.C.1. Mr. Frankel Mr. Frankel commented about the email regarding the attorney that the City Manager selected regarding the Waste Management contract. He would like to know if that attorney has represented any competitors of Waste Management or if there are any potential conflicts for transparency purposes so the Commission can be comfortable with that choice. Secondly, Mr. Frankel stated he received the email regarding the Town Hall Meeting on Thursday, June 6, 2013 at 7:00 p.m. at Old School Square. Mr. Frankel stated at the Organizational Meeting he and Commissioner Jacquet agreed that setting up HOA meetings would be beneficial because at that late hour he does not believe Senior Citizens will come out. Mr. Frankel asked staff to look into setting up these meetings. Mr. Frankel commented about the beach contract and stated although he was not present at the last Workshop meeting he did watch the video and is aware of what occurred with regard to the consensus of the Commission to put it out for an RIP. He stated if the City is going to take a position to cancel this contract or any other contracts like this without cause and potentially in bad faith, he thinks it should require a formal vote from the Commission and it should be an agendaed item and an opportunity for the public to comment on it. Mr. Frankel stated this was discussed last year at the Workshop meeting of May 22, 2012, and at that time the Commission supported Mr. Harden's decision to renew it. The City Attorney stated staff looked at it and there was no further direction given to change the renewal that was done by Mr. Harden. Therefore, the City Attorney stated there was no further action taken and it was continued on as renewed. Mr. Frankel stated because of the significance of the retroactive undoing of a contract it needs to be on the agenda, there needs to be staff presentations, and opportunity for public comment. Mr. Frankel stated the last contract that potentially could have renewed was the insurance contract. The City Attorney stated the Commission did not take action on the current cabana contract; all the Commission did was give direction to go out for an RIP. At that point, the City Attorney stated that is when the Commission will have to make a decision on what they wish to do. Mr. Frankel stated if the sole issue is trying to increase revenues he feels the Commission needs to look at the parking contract and others. 16 05/21/13 Lastly, Mr. Frankel stated with regard to Mr. Blum's comment about the invocation, he noted that the City Clerk always requests that the prayer be non- denominational. 13.C.2. Mrs. Gray Mrs. Gray thanked Lula Butler, Janet Meeks, and Rich Reade for doing an awesome job with organizing the Youth Town Hall Meeting. Secondly, Mrs. Gray inquired about the status of the report about the Advisory Boards and stated she would like clarification on the role of the Financial Review Board. The City Manager stated staff will have this available in June. 13.C.3. Mrs. Petrolia Mrs. Petrolia apologized for not being able to attend the Youth Town Hall Meeting and congratulated everyone. Secondly, Mrs. Petrolia expressed her appreciation for being invited and attending the Police Awards Banquet over the weekend. She stated it was a fantastic turnout and it was a wonderful event. Mrs. Petrolia stated it is important for the Commission to remain consistent. She stated initially there were no speakers to be allowed to talk and then eventually there was and she received a few telephone calls about that. Mrs. Petrolia stated in the fairness of all she reiterated that the Commission keep it consistent. Lastly, Mrs. Petrolia stated she received a request from a Boy Scout Troop that was interested in doing a bonfire on the beach and asked for direction on this from staff even if it is not allowed. 13.C.4. Mr. Jacquet Mr. Jacquet stated at the meeting that Mr. Frankel was in attendance the Commission did mention the May 22, 2012 Workshop meeting. At the end of the meeting comments were initiated by Mr. Frankel and two other Commissioners spoke but nothing in his opinion was said as direction. Mr. Jacquet clarified that this was during comments on the recording but not on paper. He stated on Federal Highway and N.E. 1st on the southwest corner of that intersection there is a political sticker stuck on the sign. With regard to Ms. Vinik's comments about the water fluoridation issue, Mr. Jacquet stated he believes there is enough scientific evidence proving that and she made a valid point. 17 05/21/13 Mr. Jacquet reiterated comments expressed by Commissioner Gray that staff discuss the reorganization of City Boards very soon. The City Manager confirmed that this will be discussed in June. He stated he mentioned to the City Manager last week about South Swinton (three blocks South of Atlantic Avenue) the islands are taking up parking spaces and noted they extend from Bull Bar to almost 2nd Street if not further. Mr. Jacquet stated there are a lot of small businesses there who have been complaining about not having enough space for parking and lighting. He suggested that the City take a look at whether we need to remove them or what the possibilities are or what are the options if the City decides to remove them. Mr. Jacquet stated the Haitian Flag Day on Saturday was very well attended and thanked Mayor Glickstein and Commissioner Petrolia for attending. He stated this was attended by Senator Maria Sachs, Palm Beach County Commissioner Priscilla Taylor, and State Representative Bobby Powell, Jr. Mr. Jacquet stated this was put together by himself and Retired U.S. Army Major Joseph Bernadel from Toussaint L'Ouverture High School; afterwards everyone went to the Tennis Center where they enjoyed music and food. Mr. Jacquet stated this was a remarkable event and thanked Mr. Barcinski for putting it together. Mr. Jacquet thanked Commissioner Gray for her leadership with the Youth Town Hall Meeting and stated it was very well attended and noted it was a phenomenal event. Lastly, Mr. Jacquet stated he supports putting more things out to bid but he expressed concern that the City may be over working its single staff member. He stated if other cities have 3 -7 members of staff and Delray Beach only has one he suggested that we to look into that. Mr. Jacquet stated he would like staff to look into this and get back to him with the information. 13.C.5. Mayor Glickstein Mayor Glickstein stated in terms of the contract issues what happened in the past is really irrelevant. He stated this issue is about revenue and it is also about quality. Mayor Glickstein stated the City is not retroactively changing anything. He explained anything that is revenue generating and we have the ability to go out for RFP because of that 30 -day cancellation clause, these people entered into this contract knowing that term was looming over their head or in the 5m year the City had the ability to revisit that at any time with a 30 day notice. Mayor Glickstein stated with regard to Commissioner Petrolia's comments about consistency during Workshops he and the City Attorney have had discussions about this. Mayor Glickstein stated the City's rules by our collective agreement, do not allow public comment on Workshop items and the reason he asked for input from the public is because this was a party that was not doing business with the City and there was 18 05/21/13 no financial issue involved. He stated in this particular case the community was pushing staff to do something about a certain condition and staff was giving the Commission their opinion and he felt that it was in the Commission's best interest to hear from a spokesman from that neighborhood association. Mayor Glickstein stated he discussed this with the City Attorney about what those criteria would be. Lastly, Mayor Glickstein stated the Office of Inspector General (OIG) made a presentation to the Chamber Government Affairs Committee Friday morning and she mentioned that Palm Beach Gardens had a very good procurement ordinance. He asked the City Manager to look into this so that Delray Beach can define its ordinance. There being no further business, Mayor Glickstein declared the meeting adjourned at 7:53 p.m. ATTEST: MAYOR City Clerk 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 May 21, 2013 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. 19 05/21/13 IN THE CITY COMMISSION CHAMBERS OF THE CITY OF DELRAY BEACH, FLORIDA ORDER OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA WAIVER REQUEST RELATING TO A TEMPORARY USE PERMIT TO ALLOW THE USE OF ONE (1) TEMPORARY TRAILER DURING THE RENOVATION OF THE EXISTING OFFICE BUILDING FOR ED MORSE CADILLAC LOCATED AT 2300 SOUTH FEDERAL HIGHWAY 1. This waiver request to allow a temporary use permit to allow the use of one (1) temporary trailer during the renovation of the existing office building came before the City Commission on May 21, 2013. 2. The Applicant and City staff presented documentary evidence and testimony to the City Commission pertaining to the waiver request for the temporary use permit. All of the evidence is a part of the record in this case. Required findings are made in accordance with Subsection I. I. WAIVER: Pursuant to LDR Section 2.4.7(B)(5), prior to granting a waiver, the approving body shall make a finding that the granting of the waiver: (a) Shall not adversely affect the neighboring area; (b) Shall not significantly diminish the provision of public facilities; (c) Shall not create an unsafe situation; and, (d) Does not result in the grant of a special privilege in that the same waiver would be granted under similar circumstances on other property for another applicant or owner. A. Waiver to Allow a Temporary Use Permit for One (1) Temporary Trailer at 2300 South Federal Highway: LDR Section 2.4.6(F) provides of a list of allowable temporary uses. The Applicant is requesting a waiver to Section 2.4.6(F) to permit the use of one (1) temporary trailer for temporary administrative offices for on -site sales staff, to be located at Ed Morse Cadillac at 2300 South Federal Highway. Does the waiver request subject to the conditions attached in Exhibit "A" meet all the requirements of 2.4.7(B)(5)? Yes ✓ No May 21, 2013 City Commission Meeting; Item 9.A. 3. The City Commission has applied the Comprehensive Plan and LDR requirements in existence at the time the original development application was submitted and finds that its determinations set forth in this Order are consistent with the Comprehensive Plan. 4. The City Commission finds there is ample and competent substantial evidence to support its findings in the record submitted and adopts the facts contained in the record including but not limited to the staff reports, testimony of experts and other competent witnesses supporting these findings. 5. Based on the entire record before it, the City Commission approves ✓ denies the waiver requests to LDR Section 2.4.6 (F) subject to the conditions listed in Exhibit °A" attached hereto. 6. Based on the entire record before it, the City Commission hereby adopts this Order this 21st day of May, 2013, by a vote of 5 in favor and 0 opposed. ATTEST: Chevelle Nubin, City Clerk Cary D. Glic in, Mayor 2 May 21, 2013 City Commission Meeting; Item 9.A. Exhibit "A" Conditions Related to the Waiver Request to Allow One (1) Temporary Trailer at Ed Morse Cadillac Located at 2300 South Federal Highway 1. That the temporary trailer, access ramp, landscaping, etc. all be removed from the property and the area restored concurrent with the issuance of a Certificate of Occupancy for the showroom new car sales office, but in no event shall the Temporary Use Permit be valid for more than nine (9) months from the issuance of same; 2. That the four parking spaces directly located to the west of the proposed trailer be temporarily deleted from the site plan as they will interfere with traffic circulation, 3. That the siting of the temporary trailer must meet all applicable building permit requirements including, but not limited to, connection with appropriate utility services; and 4. That a Class II site plan modification must be processed and certified prior to placing the trailer on the site. 3 May 21, 2013 City Commission Meeting; Item 9.A. A Message From Representative Hager: When I was elected as your State Representative I pledged to vote for less government, less spending, and economic recovery. I committed to support a balanced budget that did not raise taxes of fees for any Floridians. These principles through tough economic times enabled us to have more flexibility in spending for this year's budget. We passed a conservative, balanced budget that met our core responsibilities, eliminated wasteful or job - killing programs and provided a well - deserved pay raise for our hard working teachers and state employees. We also passed tax relief for small businesses and our manufacturing companies so that Florida will see more job opportunities in the corning year. Please take a moment to read my newsletter and call or email me if you have any questions, ideas or concerns. Thank you and I look forward to hearing from you soon. Sincerely, Your opinion is very important to me. Have a question or comment about this year's legislative session, or an idea for next year's 7 f k session? Share your thoughts with me -send an email today! ! Bill. Harerkmytloridahouse.gov Bill Hager State Representative Representative Ha -zer's Legislation Two of the bills I filed this Session have now passed both the House and the Senate and are awaiting Governor Scott's signature to become law. • House Bill 343 provides that wrap -up insurance policies may include workers' compensation claim deductibles equal to or greater than the specified amount if specified standards are met. It will result in lower construction costs resulting from lower insurance premiums. A workers compensation deductible creates a direct monetary incentive for an owner or general contractor to maintain an effective on -site safety program which results in fewer injuries to employees. • House Bill 553 was crafted with Florida's CFO Jeff Atwater to streamline processes, create efficiencies, repeal unnecessary regulations and improve overall operations in the CFO's office. The bill specifically relates to the Department of Financial Services' Division of Workers' Compensation, which is responsible for ensuring the self - execution of the workers' compensation system, and improves the ease of compliance for the benefit of employers, health care providers, and injured (w�orke s. 65th Anniversary of the Independence of the State of Israel. This year marks the 65th anniversary of the independence of the State of Israel and it was my honor to recognize this fact by submitting and having recognized on the floor of the House a resolution honoring the Jewish state. House Resolution 9017 recognizes and celebrates the establishment of Israel, the democratic nation -state of the Jewish people, 65 years ago. Consul General Chaim Shacham as well as his colleagues, Deputy Consul General Revital Malca, Israel Shamay, Executive Director of Strategic Initiatives and Head of American Operations for Israel's Research and Development Agency, and Lisa McClaskey, Director of Economic and Political Affairs for the Consulate General of Israel were presented with the resolution during a ceremony in the Speaker's office. Please join with me in celebrating the 65th anniversary of the State of Israel and the unique relationship between Florida and Israel. (Leff to Right) Israel Shamay (Executive Director of Strategic Initiatives and Head of American Operations for Israel's Re- search and Development Agency), Representative Bill Hager, Consul General Chaim Shacham, Lisa McClaskey (Director of Economic and Political Affairs for the Consulate General of Israel), & Deputy Consul General Revital Malca. 2013 Budget Update This year the Legislature has produced a fiscally responsible balanced budget that funds key priorities without raising taxes. The budget, which is $74.5 Billion, continues this Legislature's commitment to creating a climate for economic growth, innovation and job creation in this state by making significant investments in infrastructure and economic development initiatives. Keeping with our commitment to providing a quality education in the State of Florida the Legislature increased K -12 funding by $1.5 Billion. Beach nourishment and coastal preservation was an ongoing issue statewide, and our local communities were allocated almost $2.5 million for projects relating to our beaches. Additionally Florida Atlantic University was allocated funding for its memory disorder center, Autism Clinic and medical school. I worked with Governor Scott to make sure these important projects were not vetoed as he reviewed the final budget, which I believe to be a good balance of funding key priorities while keeping taxes low and ensuring fiscal responsibility. Mitochondrial Disease Awareness Week I am pleased to have been able to sponsor House Resolution 9061 marking September 15 -21, 2013 as Mitochondrial Disease Awareness Week. Having recently been introduced to Mitochondrial Disease through one of my constituents I was glad to introduce this Resolution to bring awareness to these debilitating and often deadly diseases. Mitochondrial Disease will affect 1 in 4000 children by age 10 and also includes diseases such as Alzheimer's and Parkinson's. Election Reform A major focus this Session was on Election reform. I was pleased to be able to vote for the passage of HB 7013 which provides for a minimum of 8 and a maximum of 14 early voting days as well as a minimum of 64 and a maximum of 168 early voting hours. It also expands voting sites to include fairgrounds, civic .centers, courthouses, county commission buildings, stadiums and convention centers. This Bill will make voting in Florida more easily accessible as well as cut down on the time it takes to vote. The legislation also introduced new word limits on legislative ballot summaries which will allow the majority of people to understand the issues they are voting on, and is a step in the right direction of good government. MEMORANDUM TO: Mayor and City Commissioners FROM: Ronald Hoggard, AICP, Principal Planner Paul Dorling, AICP, Director Planning and Zoning THROUGH: Louie Chapman, Jr., City Manager DATE: May 29, 2013 SUBJECT: AGENDA ITEM 8.A. - REGULAR COMMISSION MEETING OF JUNE 4, 2013 FINAL SUBDIVISION PLAT APPROVAL /SOFA DELRAY ONE ITEM BEFORE COMMISSION The item before the City Commission is the certification of the final plat for a new multiple - family residential development being platted as SOFA Delray One. The subject property is located on the east side of SE 3rd Avenue, between SE 1 st Street and SE 2nd Street and is bordered on the east by an existing north -south 16' alley. BACKGROUND The subject property, which is zoned CBD (Central Business District), comprises a 1.88 acre site which combines four (4) separate parcels: The northernmost property (3 10 SE 1st Street) is 0.48 acres and contains a 10,528 sq. ft. office building which was constructed in 1950. The property immediately to the south is 0.30 acres and contains an existing parking lot also constructed in 1950 in conjunction with the offices at 310 SE 1st Street. The parking lot parcel is subject to an "Easement, Use, Maintenance and Declaration Agreement" which provides an access easement over the southern parking lot aisle and the use of 5 parking spaces to the property east of the alley (120 SE 4th Avenue). The property to the south of the parking lot (155 SE 3rd Avenue) is 0.42 acres and contains a 5,082 sq. ft. office building constructed in late 2000. The southernmost parcel (189 SE 3rd Avenue) is located at the northeast corner of SE 3rd Avenue and SE 2nd Street. The 0.68 acre site contains a 9,225 sq. ft. office building which was constructed in 1974. On December 19, 2012, the Site Plan Review and Appearance Board approved a Class V Site Plan, Landscape Plan and Architectural Elevations to construct a one hundred seventeen (117) unit, four (4) story multi- family residential building with a two hundred and one (201) space parking garage on the ground level. The property is a replat of Lots 1 through 4, 7 through 10 and portions of Lots 5 and 6, Block 94, Town of Linton (Now Delray Beach), as recorded in Plat Book 1, Page 3 of the public records of Palm Beach County, Florida. The replat will subdivide the subject property into (3) tracts. Tract "A ", the development parcel, will contain the residential and parking facilities for the new project. Tract `B" is a dedication of 5 feet of additional right -of -way for a portion of SE 3rd Avenue, 2.5 feet of additional right -of -way for SE 1st Street, and 2 feet of additional right -of -way for the north -south alley located along the east side of the property. Tract "C" is a dedication of 5 feet of additional right -of -way for an additional portion of SE 3rd Avenue. These dedications, which also include corner- clips, are being dedicated by this plat. The plat includes a ten foot drainage easement which will accommodate the exfiltration system under the parking garage on the ground floor. A one foot sidewalk easement on the east side of SE 3rd Avenue is being dedicated to allow expansion of the 5' sidewalk to 6'. A 6.5' x 12' water easement is being dedicated at the southeast corner of the property and a 10' x 22.6' utility easement is being dedicated along the alley at the north end of the property for FPL. Plat Anal, City staff has reviewed the plat and determined that all technical comments have been satisfied. Pursuant to LDR Section 3.1.1, prior to approval of development applications, certain findings must be made in a form which is part of the official record. This may be achieved through information in the application, the staff report, or minutes. Findings shall be made by the body which has the authority to approve or deny the development application. As shown in the attached Planning and Zoning Board staff report, positive findings can be made with respect to Future Land Use Map Consistency, Concurrency, Consistency with the Comprehensive Plan, and Compliance with the Land Development Regulations. REVIEW BY OTHERS The Planning and Zoning Board reviewed the Plat at its meeting of March 18, 2013, and recommended approval by a vote of 4 to 0. Courtesy Notices: Courtesy notices have been provided to the following groups and neighborhood associations: • Neighborhood Advisory Council • Delray Citizen's Coalition To date, no letters of objection or support for the Plat have been received. Any future letters of support or objection will be presented at the City Commission meeting. RECOMMENDATION Move approval for the SOFA Delray One Plat, by adopting the findings of fact and law contained in the staff report and finding that the request and approval thereof is consistent with the Comprehensive Plan and meets the criteria set forth in Section 2.4.50 (Major Subdivisions), Section 3.2.3 (Standards for Site Plan and/or Plat Actions) and Section 3. 1.1 (Required Findings) of the Land Development Regulations. A T L A N T I C w Q w Q S. E. S. E. w z A V E N U E 1) z w vi w Q � 0 z N LU uu 3RD me I 1J1-1 S T. N SUBJECT SOFA BUILDING #1 PROPERTY PLANNING AND ZONING DEPARTMENT D LOCATION MAP JIJ I�U=WIJ 1) z w vi w Q � 0 z N LU uu 3RD me I 1J1-1 S T. -- DIGITAL BASE MAP SYSTEM -- MAP REF: S: \Planning & Zoning \DBMS \Fil — Cab \Z —LM 1001 - 1500 \LM1360_Sofa Building #1 N SUBJECT SOFA BUILDING #1 PROPERTY PLANNING AND ZONING DEPARTMENT D LOCATION MAP -- DIGITAL BASE MAP SYSTEM -- MAP REF: S: \Planning & Zoning \DBMS \Fil — Cab \Z —LM 1001 - 1500 \LM1360_Sofa Building #1 -6 b , 4 � - � _.�•..� -L„ ��.t_ — WSJ .r -r. d _ • ' a µ.:yr� i ����1 4 C ' i t 9 1 = ' J9J 1 I og� i 'I'S I—RUMEN' PPEPARED EN PILLAR CONSULTANTS. INC. a "'z ooro« P )ESCRIPTION & DEDICATION: COYPOBYAAS IOSPARCELS R ANDCC� LICENSED TO GO BUSINESS IN FLORIDA. OWNERS R 1HE LAND AS S"*WV ON THIS o-auARTER (, /� CTION ,S, TDWxsHIP ,s BOOTH, BEING 11 THE RANGE 91 EAST. PAL. BEACH COUNTY. BEING YORE PARTI[UAM D SCRIBED AS FOLLOWS PARCEL A LOTS 1. 2. ] 9 AND THE NORTH 5.2 FEET OF LOT S. BLOCK 89. NAP OF THE TOWN OF LINTON. FLORIDA (CFOInE PUBLIC RE[DRDS RAPAi. BEA[H COUNTY, ELG�,LA RR' RECORDED IN PLAT BCDC t, PAGE } PARCEL B LOT 5 LESS THE NDRTH S2D FEET THEROF. TOGETHER WITH LOTS G AND 7. LESS THE SOUTH 37.4 FEET . BLOCK 94, MAP R THE lDWN OF UNION (NOW BEACH), ACCORDIG TO THE PLAT IN OR, AS RECORDED IN PLAT BOOK 1. PAGE 3 GF wE[IBLIC RECORDS OF PALM BEACH COUNTY, LESS AND EXCEPT THE FOLLOWING PORTION IHEREOf CONVEYED BY RIGHT -OF -WAY DEED, RECORDED APRIL FRNDA OFFICIAL RECORDS BOOK 11707, PAGE — R THE PUBLIC RECORDS OF PAUL BEACH COUNTY, THE WEST 5.00 FEET OF LOT S. LESS THE NORTH 5.20 FEET THEREOF, TOGETHER BTH THE WEST 5.00 FEET 74 OF 11 1 AND KNOWN AS DELRAY BEACH),EACCRDNG TOFTHE BART IHEREOf�ASRECOROEOTIxE PIOLx.IBuxlRu }w0F THE PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA. PARCEL C LOTS (NR B, B t0 ANO THE SOU Cx)7nCFFEET OF LOT 7. BLOC THEREON, n5 TIE RECORDED OF UNMN, FLORIDAAGE 3 OF THE PUBLIC RECORDS OF PALN BEACH CWNTY. fRIDA. SAID LANDS SITUATE. LYING AND BEING IN THE CITY OF DELRAY BEACH. PALM BEACH COUNTY. FLORIDA. CONUAUNG B,,9OS9, SDUARE FEET (I.BB ACRES) MORE OR LESS. HAVE CAUSED MID LAM BE IU YWED D PLATTED AS SHOWN HEREON AS THE -FA DELRAY ONE. PLAT, AND FURTHER "" I DEDE' TES AS DEDICATED TEDLFIR PURPOSES As ALLOWED PURSUANT 10 THE —IND BEACH G C EDICATED TO THE CITY R DELRAY BEACH As PUBLIC RIGHT -OF -WAY FOR STREET AND UTILITY PURPOSES. ISHEREBY DEDICATED 10 THE CITY Of DELRAY BEACH AS PUBLIC RIGHT -OF -WAY FOR STREET AND UTILITY PURPOSES. ALONG WITH THE FOLLOWING EASEMENTS vu"THE"U'A 11111 SDOMI uUw:uV ARE DEDICATED EXCLUSIVELY TO THE CITY OF CH OR OF WATEREAND SEWER MANS SS OF ACCESS CONSTRUCTXN. MAINTENANCE, AND OPERATION ACTIVITIES n.F.)ALL DRAINAGE EA S. CHRISIOPHER [0 UNBUS S BLVD.. L.P.. A PENNSYLVANIAN LIMITED PARTNERSHIP' AEND DEDICATED 2 55 AND 1895E 3RD AVE. L.L.C.. A FLORIDA UNITED UABNTY C..- Y' THEIR SUCCESSORS AND/OR ASSRS AND ARE THE PENNSYLVANIA MAINTENANCE LIMITED PARTNERSHIP' AND '1S5 AND 188 BE 3RD( AVE•L.LC., A FLRIDAL LLIIMITED A LIABLITY COMPANY, WITH DU7 RECOURSE 70 THE CITY R DELRAY BEACH. LICE I'llf— DASDS¢'\T 11.0), SDOYVT- IIEREOV. IS DEDICATED TO ANY PUBLIC R PRIVATE UTILITY. ELECTRIC POWER. GAS SERVICE OR TELEPHONE LINES AND CABLE TELEVISION; PROVIDED HOWEVER. NO SUCH CONSTRUCTION. SHALL INTERFERE WIN THE FACILLIV. AND SERVICES AOF ELECTRIC. TE EPHONE. GAS OR OTHER PUBLIC FACILITY. CABLE TELEVISION DAMAGES SUCH CONS FACUIRS IT fRNDA PUBLIC SERVICEuI540x.7XE NATIONAL ELECTRIC SAFETY CODE AS ADOPTED BY THE UASr':yu:V IS, AS SHOWN HEREON. ARE DEDICATED 10 THE CITY OF DELRAY BEACH FOR PLXGUC ACCESS. IN "TNEll LIMITED ATTESIEDABYNIlSSn F— -- AUYONi -ESE PRESENTS THIS SIGN (DAY Of O. =.P� A= EUUSttvZU11. D NOWLEDGMENT: OF FLORIDA M OF PALM BEACH SS �E ME PERSONALLY APPEARED WHO IS JESS MY HAND AND OFFICIAL SEAL THIS ____ DAY OF 2011. c9m i ; p % R4 WIA.q Public Stale el Riw7i -GRi n Print Nome SOFA DELRAY ONE A REPLAT OF LOTS 1, 2, 3, 4 AND THE NORTH 5.2 FEET OF LOT 5, BLOCK 94, TOWN OF LINTON (NOW DELRAY BEACH) (P.B. 1, PG. 3, P.B.C.R.), TOGETHER WITH LOT 5, LESS THE NORTH 5.20 FEET THEREOF, TOGETHER WITH LOTS 6 AND 7, LESS THE SOUTH 37.40 FEET THEREOF, BLOCK 94, TOWN OF LINTON (NOW DELRAY BEACH) (P.B. 1, PG. 3, P.B.C.R.), LESS A 5.00 FOOT STRIP OF RIGHT -OF -WAY LYING ALONG THE WEST LINE OF LOTS 5, 6 & 7, LESS THE NORTH 5.20 FEET OF LOT 5 AND THE SOUTH 37.40 FEET OF LOT 7 THEREOF, BLOCK 94, TOWN OF LINTON (NOW DELRAY BEACH) (P.B. 1, PG. 3, P.B.C.R.), TOGETHER WITH LOTS 8, 9, 10, AND THE SOUTH 37.40 FEET OF LOT 7 THEREOF, BLOCK 94, TOWN OF LINTON (NOW DELRAY BEACH) (P.B. 1, PG. 3, P.B.C.R.) LYING IN THE SOUTHWEST ONE- QUARTER OF SECTION 16, TOWNSHIP 46 SOUTH, RANGE 43 EAST CITY OF DELRAY BEACH, PALM BEACH COUNTY, FLORIDA. LOCATION MAP (NOT TO SCALE) ACKNOWLEDGMENT: STATE OF FLORIN 55 COUNTY Of PALM BEACH BEFORE ME PERSONALLY APPEARED WHO 15 PERSONALLY KNOWN TO ME, OR HAS PRODUCED AS IDENTIFIGTION, AND WHO EXECUTED THE FOREGOING INSTRUMENT AS MANAGING MEMBER OF l55 AND 189 SE 3RD AYE, LLC., A FLORIDA LIMITED LIABILITY COMPANY, AND SEVERALLY ACKNOWLEDGED TO AND BEFORE ME THAT (HE /SHE) EXECUTED SUCH INSTRUMENT AS SUCH OFFICER OF SAID CORPORATION, AND THAT THE SEAL AFFIXED TO THE FOREGOING INSTRUMENT 5 THE CORPORATE SEAL OF SAID CORPORATION AND THAT 5 WAS AFFIXED TO SKID INSTRUMENT BY DUE AND REGULAR CORPORATE AUTHORITY, AND THAT SAID INSTRUMENT 5 THE FREE ACT AND DEED OF SAID CORPORATION. WITNESS MY HAND AND OFFICIAL SEAL THIS ____ DAY Of ____- - - - - -, 2013. My omm,u,on ezPirea By.__o_ _ ____ Not ry PuDli< - StOte of FIOrgP commission uo. Print Nome SURVEYOR'S NOTES: 1 .i- DLamix(1 /1) OF siciux�is,�oausHXP 9s LINE ... THE SAID WEST LINE HE CERT x DU DETER,( /.) coxuER IANDTTHE .1 RECORDS N OFOTIEHSAID SSEECTION ,S. ONE-Q WER(1 /1) CORER, AS RECORDED IN CERT DOCUMENT NUMBER D52 WITH THE ro NG COORDNATES: NORTHING - ]]9573.823. FASTING - 85991992] TIE xC COORDICCORDED IN CENIFIED CORNER NORTHINNG - 77192D.913, IFASTIND - BATES 485.S2 THE SAID WEST LINE OF THE SOUIHXEST ONE- OUARTER(1 /9) BEARS C Of DELRAY WIHALL BUILDING AND ZONING CODES AND/OR ORDINANCES OF THE 9 LK AY BEACH. WHICH ARE uNDSGPING ON OTHCONPANIES OCCUPYING SSWE R ACCRED ONLY AFTER CONSENT OF ALL THE UTILITY 5. ED THE RIGHT OF ACCESS FOR B. EMERGENCY YT, AS RECORDED PURPOSES. RFICML DEPICTION OF THE SUBDIIDED UNARIA6 DESCRIBED HEREIN AND GRAPHIC OR RR DIGITAL FORM OF THE PLAT. A. BETHERE FOUND DINETHEDPUBUC RECORDS OF PALAMABEACH COUNTY. ON THIS PUT (HMI MAY SHEET 1 OF 2 SHEETS CITY APPROVALS: THIS PLAT OF SO DTT C &y (1N1. AS APPROVED ON THE DAY OF __— P.D. 2013 BY THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA. -- MAYOR ------- - - -_ ATTEST: _ -- ------ CITY CLERK -- ------ AND REVIEWED, ACCEPTED AND CERTIFIED BT: DIRECTOR Of PLANNING AND ZONING CHAIRPERSON: PLANNING AND ZONING BOARD TITLE CERTIFICATION: STATE OF FLORIDA SS COUNTY OF PALN BEACH J I BETH E. UNZER, PA., A DULY LICENSED ATTORNEY IN THE STATE OF FLORIDA, DO HEREBY CERTIFY THAT I HAVE EXAMINED THE TITLE TO THE HEREON DESCRIBED PROPERTY; TINT I FIND THE TITLE TO THE PROPERTY VESTED TO 22N S. CHRISTOPHER COLUMBUS BLVD.. L.P... A PENNSYLVANIA LIMITED PARTNERSHIP AND 155 AND 189 SE 3RD AYE, I_—. A FLORIDA LIMITED LIABILITY COMPANY; THAT THE CURRENT TAXES HAVE BEEN PAID; THAT THERE ARE NO MORTGAGES OF RECORD; AND THAT THERE ARE NO ENCUMBRANCES OF RECORD. DATED: _-- ------ B\'. _— _ATTORNEY ________------ _________ - -_ -AT -LAW LICENSED IN FLORIDA REVIEWING SURVEYOR'S STATEMENT: THIS 1 AS EED CCOMDANCE — WE DATE PREPARING SURVEYOR'S STATEMENT: YH. ,_ SOUTH U ASTY GAVE. SUITE IDI. DAME. FUORID1 U52S SURVEYOR'S CERTIFICATE THIS IS TO CERTIFY THAT THE PLAT SHOWN HEREON IS A TRUE AND CORRECT REPRESENATION OF A SURVEY MADE UNDER MY RESPONSIBLE DIRELTON AND SUPERVISION; THAT SAID SURVEY IS ACCURATE TO THE BEST OF MY KNOWLEDGE AND BELIEF; THAT PERMANENT REFERENCE MONUMENTS (P.R.N.'a) HAVE BEEN PLACED AS REOUIRED BY HAW, AND THAT PERMANENT CONTROL POINTS (P.C.P.'s) WILL BE SET UNDER THE GUARANTEES POSTED WITH THE CITY OF DELRAY BEACH FOR THE REQUIRED IMPROVEMENTS OF CHAPTER 177. FLORIDA STATUTES, AS AMENDED, AND THE ORDINANCES OF (T OF DELRAY, FLORIDA. B: TROT N. NO0. . LSEND, P.S.N. DATE LICENSE N STATE Of FLORIDA 'I'S INSTRUMENT PREFERFER ED PILLAR CONSULTANTS INC. AC, 2A �o sTTa ,a4 ° IRE A NE, 20103 SOFA DELRAY ONE A REPLAT OF LOTS 1, 2, 3, 4 AND THE NORTH 5.2 FEET OF LOT 5, BLOCK 94, TOWN OF LINTON (NOW DELRAY BEACH) (P.B. 1, PG. 3, P.B.C.R.), TOGETHER WITH LOT 5, LESS THE NORTH 5.20 FEET THEREOF, TOGETHER WITH LOTS 6 AND 7, LESS THE SOUTH 37.40 FEET THEREOF, BLOCK 94, TOWN OF LINTON (NOW DELRAY BEACH) (P.B. 1, PG. 3, P.B.C.R.), LESS A 5.00 FOOT STRIP OF RIGHT -OF -WAY LYING ALONG THE WEST LINE OF LOTS 5, 6 & 7, LESS THE NORTH 5.20 FEET OF LOT 5 AND THE SOUTH 37.40 FEET OF LOT 7 THEREOF, BLOCK 94, TOWN OF LINTON (NOW DELRAY BEACH) (P.B. 1, PG. 3, P.B.C.R.), TOGETHER WITH LOTS 8, 9, 10, AND THE SOUTH 37.40 FEET OF LOT 7 THEREOF, BLOCK 94, TOWN OF LINTON (NOW DELRAY BEACH) (P.B. 1, PG. 3, P.B.C.R.) LYING IN THE SOUTHWEST ONE- QUARTER OF SECTION 16, TOWNSHIP 46 SOUTH, RANGE 43 EAST CITY OF DELRAY BEACH, PALM BEACH COUNTY, FLORIDA. GRAPHIC SCALE 1 I cn ®o IL TRACT 'A STRAND DELRAY P.B. 105, PG. 81, P,B,C,A TRACT 'C' ADDITIONAL RIGHT -OF -WAY DEDICATED BY THIS PLAT "I F , P17- —ARE FEET - - _ - _ - - - - (� --- i , N01- 31'54 "W 221.00' SOUTHWEST CORNER OF THE SouTNWEST ONE - QUARTER (1/4) OF SECTION 16, �TOWNSNIP a6 SOUTN. RANGE 13 EAST S01 °32'34 "E 2.653.84' 1 N 4419209130 THE WEST LINE OF THE E 959485.9120 SOUTHWEST ONE - QUARTER ,1441 OF SECTION 16. TOWNSHIP 46 SOUTH, RANGE 43 EAST TRACT 'C o � Ra NAL . oPe. . P. 'A SET P.R.M. S.E. 3RD AVENUE SET PR 5' R1GHT -OF -WAY SET P.R.M. E.T .. EAYrENI o CKT -- CP - ❑.R.e. v4m, PG. 439, P.D.cR. N01 °31'54 "W 250.00' - XM� "nox, - soT31s4� zD6.Dm- �'� -L, °19'15 "E Nu1 N89 °19'15 "E SET PR.n. s T -or�Ar a�E" N437,54' 'E� tiN m W mzAiN � yr ffRUO En x[xT [n an N89 SET P.R.n. e °N 5.00'— 17.54' o�' m r 5.00' - - - -- _ _ —� 2s oo' 2s.00' Ul °o o _ SOUTHWEST CORNER OF THE SouTNWEST ONE - QUARTER (1/4) OF SECTION 16, �TOWNSNIP a6 SOUTN. RANGE 13 EAST S01 °32'34 "E 2.653.84' 1 N 4419209130 THE WEST LINE OF THE E 959485.9120 SOUTHWEST ONE - QUARTER ,1441 OF SECTION 16. TOWNSHIP 46 SOUTH, RANGE 43 EAST TRACT 'C o � Ra NAL . oPe. . P. 'A SET P.R.M. S.E. 3RD AVENUE SET PR 5' R1GHT -OF -WAY SET P.R.M. E.T .. EAYrENI o CKT -- CP - ❑.R.e. v4m, PG. 439, P.D.cR. N01 °31'54 "W 250.00' - XM� "nox, - soT31s4� zD6.Dm- �'� -L, °19'15 "E Nu1 N89 °19'15 "E SET PR.n. s T -or�Ar a�E" N437,54' 'E� 0o ffRUO En x[xT [n an N89 SET P.R.n. 5.00'— 17.54' 5.00' - - - -- _ _ —� — — — — — — ao�— — — - —� - --� r-- MO3 - -- TRACT ,A, �'' - - - --— sssa i4 r — — �. - -- T F -- 77,769.19 ml I I I e lm T SQUARE FEET m�lm ; to q "I (1.79 ACRES) J —J L — — — -�'?`Z L J L— „e,• —_ TRACT 'H' ,o• n j— — — - - -- ,a — — — —� — — —— — — — — — — — —J A ➢DI912.29 RIGHT -DF -WAY DEDICATED BY THIS PLAT 2,912.29 SQUARE FEET — aIRxT -or -v Fpa, rwT- or -var on 's "IGQ r 59A.DD' [0.07 ACRES) 17TI Hl �z a F, LEGEND: R.R. _ OFLAT 0 GAL 111010 BOOK P. R.C. R. - EACH COUNTI RECORDS NT REFERENCE MONIIMENT 0 M - CO CRETE MONUMENT 24 IN LENGTH, (P. R. M.) NORTHING E GOT ING PER NAGE EA GENT IF GENTEEL T ALLEY MR. mz SHEET 2 OF 2 SHEETS wNTl IF PALM 1EACH 'HIS FLAT — FILED FOR RECORD AT THIS DAI OF 20—. AND DULY RECORDED IN FLAT BOOK ON PAGES AND SHARON P CLERK AND CCOMPTROLLER NORTHWEST CORNER OF THE SOUTHWEST DC ONE - QUARTER CL41 OF SECTION 16, TOWNSHIP 46 SOUTH, RANGE 43 EAST \ 662.53' E 959414 ,1240 TRACT STRAND DELRAY P.B. 105, P6. 81, P,B.C.R. 25,00' 25.00' ED z N _ _ Ao PC w BE cn 0 0 N pp�AA 1" A A, I AREA TABLE FEET AG TRACT :A 77,769 ,119 178 TRACT '1' 2.91229 0.07 TRACT 'C 1.217.43 0.03 PLANNING AND ZONING BOARD CITY OF DELRAY BEACH -- -STAFF REPORT-- - MEETING DATE: MARCH 18, 2013 ITEM: V. B. SOFA DELRAY ONE PLAT- A plat for a 117 -unit multi - family residential development on a 1.88 acre site with a density in excess of 30 Units Per Acre (62 du /ac Proposed) within the Central Business District (CBD). GENERAL DATA: Agent .. ............................... Pillar Consultants, Inc. Applicant /Owner ................ 2204 S Christopher Columbus Blvd LP; 155 & 189 SE 3rd Ave LLC Location ... ............................... On the east side of SE 3rd Avenue, between SE 1St Street and SE 2 n Street Property Size .......................... 1.88 Acres Current FLUM ................... Central Core (CC) Current Zoning .................... Central Business District (CBD) Adjacent Zoning.......... North: Central Business District (CBD) South: Multiple Family Residential (RM) East: Central Business District (CBD) West: Central Business District (CBD) Existing Land Use ................... Commercial & Office Uses (to be demolished) Proposed Land Use ............... Multi- family Residential Water Service ......................... Existing on site via an existing six inch (6") water main within S.E. 3rd Avenue right -of -way. Sewer Service ........................ Existing on site via an existing eight inch (8 ") sanitary sewer main within SE 3rd Avenue or 16' east alley right -of -way. III nir _- nn n Ed �n nn IN n �_ E _ ITEM BEFORE THE BOARD The item before the Board is that of approval of a preliminary plat and certification of a final plat for a new multiple - family residential development being platted as Sofa Delray One. The subject property is located on the east side of SE 3rd Avenue, between SE 1s' Street and SE 2nd Street and is bordered on the east by an existing north -south 16' alley. This plat is being processed pursuant to LDR Section 2.4.5(J), Major Subdivisions. BACKGROUND The subject property, which is zoned CBD (Central Business District), comprises a 1.88 acre site which combines four (4) separate parcels: The northernmost property (310 SE 1 st Street) is 0.48 acres and contains a 10,528 sq. ft. office building which was constructed in 1950. The property immediately to the south is 0.30 acres and contains an existing parking lot also constructed in 1950 in conjunction with the offices at 310 SE 1St Street. The parking lot parcel is subject to an "Easement, Use, Maintenance and Declaration Agreement" which provides an access easement over the southern parking lot aisle and the use of 5 parking spaces to the property east of the alley (120 SE 4t" Avenue). The property to the south of the parking lot (155 SE 3rd Avenue) is 0.42 acres and contains a 5,082 sq. ft. office building constructed in 2000. On February 2, 2000, the Site Plan Review and Appearance Board (SPRAB) approved a Class V Site Plan for "3rd Avenue Offices" for construction of that facility. The southernmost parcel (189 SE 3rd Avenue) is located at the northeast corner of SE 3rd Avenue and SE 2nd Street. The 0.68 acre site contains a 9,225 sq. ft. office building which was constructed in 1974. On December 19, 2012, the Site Plan Review and Appearance Board approved a Class V Site Plan, Landscape Plan and Architectural Elevations to construct a one hundred seventeen (117) unit, four (4) story multi - family residential building with a two hundred and one (201) space parking garage on the ground level. PLAT DESCRIPTION The property is a replat of Lots 1 through 4, 7 through 10 and portions of Lots 5 and 6, Block 94, Town of Linton (Now Delray Beach), as recorded in Plat Book 1, Page 3 of the public records of Palm Beach County, Florida. The replat will subdivide the subject property into (3) tracts. Tract "A ", the development parcel, will contain the residential and parking facilities for the new project. Tract "B" is a dedication of 5 feet of additional right -of -way for a portion of SE 3rd Avenue, 2.5 feet of additional right -of -way for SE 1St Street, and 2 feet of additional right -of -way for the north -south alley located along the east side of the property. Tract "C" is a dedication of 5 feet of additional right -of -way for an additional portion of SE 3rd Avenue. These dedications, which also include corner - clips, are being dedicated by this plat. The plat includes a ten foot drainage easement system which will accommodate exfiltration under the parking garage on the ground floor. A one foot sidewalk easement on the east side of SE 3rd Avenue is being dedicated to allow expansion of the 5' sidewalk to 6'. A 6.5' x 10' water P &Z Board Staff Report, Meeting of March 18, 2013: Sofa Delray One Plat Paqe 2 easement is being dedicated at the southeast corner of the property and a 10' x 10' utility easement is being dedicated along the alley at the north end of the property for FPL. PLAT ANALYSIS Pursuant to Section 3.1.1 of the Land Development Regulations, prior to approval of development applications, certain findings must be made in a form which is part of the official record. This may be achieved through information in the application, the staff report, or minutes. Findings shall be made by the Board to approve or deny the development application. These findings relate to Future Land Use Map, Concurrency and Consistency with the Comprehensive Plan, and Compliance with the Land Development Regulations. Section 3.1.1 (A) - Future Land Use Map: The resulting use of land or structures must be allowed in the zoning district within which the land is situated and said zoning must be consistent with the applicable land use designation as shown on the Future Land Use Map. The subject property has a Future Land Use Map (FLUM) designation of Commercial Core (CC) and a zoning designation of Central Business District (CBD), which are consistent with one another. Pursuant to LDR Section 4.4.13(D)(12), multiple - family dwelling units at a density over 30 units per acre are permitted through the conditional use approval process, subject to substantial compliance with the performance standards identified in LDR Section 4.4.13(1). Conditional Use approval was granted by the City Commission on December 11, 2012. Based upon the above, it is appropriate to make a positive finding with respect to consistency with the FLUM designation. Section 3.1.1 (B) — Concurrency: Pursuant to Section 3.1.1(B) Concurrency as defined pursuant to Objective B -2 of the Future Land Use Element of the Comprehensive Plan must be met and a determination made that the public facility needs of the requested land use and /or development application will not exceed the ability of the City to fund and provide, or to require the provision of, needed capital improvements for the following areas: Water and Sewer: Water service exists on site. It is available via connection an existing 6" water main within S.E. 3rd Avenue right -of -way. Sewer service also exists on site. It is available via connections to an existing 8" sanitary sewer main within SE 3rd Avenue right -of -way. There is also an alternate connection to an existing 8" sanitary sewer main within the 16' alley right -of- way to the rear of the property. Pursuant to the Comprehensive Plan, treatment capacity is available at the City's Water Treatment Plant and the South Central County Waste Water Treatment Plant for the City at build -out. Based upon the above, positive findings can be made with respect to this level of service standard. Drainage: Preliminary engineering and drainage plans have been submitted with the proposed development. Drainage will be accommodated via floor drains on the ground level of the parking garage that will connect to an exfiltration trench system. There should be no impact on drainage as it relates to this level of service standard. Streets and Traffic: The subject property is located within the City's Transportation Concurrency Exception Area (TCEA), which encompasses the CBD, CBD -RC, OSSHAD, and West Atlantic Avenue Business Corridor. The TCEA exempts the above - described areas from complying with the Palm Beach County Traffic Performance Standards Ordinance. Therefore, a traffic study is not required for concurrency purposes. However, a traffic statement is necessary P &Z Board Staff Report, Meeting of March 18, 2013: Sofa Delray One Plat Page 3 to keep a record of trips approved in the TCEA and for calculation of traffic impact fees. A traffic statement has been provided which indicates that the proposed multi - family development will generate 863 net new vehicle trips per day. Specifically, it will generate 64 AM net new peak hour trips and 85 PM net new peak hour trips. Parks and Recreation Facilities: The Open Space and Recreation Element of the City's Comprehensive Plan concludes that "The City will have sufficient recreation facilities at build -out to meet the adopted standards ". A park impact fee is collected to offset any impacts that the project may have on the City's recreational facilities. Pursuant to LDR Section 5.3.2, a park impact fee of $500.00 per dwelling unit will be collected prior to issuance of a building permit for each unit. A total fee of $58,500.00 will be required of this development for parks and recreation purposes, prior to building permit issuance. Solid Waste: The existing 24,835 sq. ft. of offices generate a total of 65.57 tons of solid waste per year (24,285 sq. ft. x 5.4 lbs. = 65.57 tons). The proposed 117 dwelling units will generate a total of 60.84 tons of solid waste per year (117 units x 0.52 tons = 60.84 tons). Therefore, there will be a net reduction of 4.73 tons per year with the proposed redevelopment of the site. The Solid Waste Authority has indicated that its facilities have sufficient capacity to handle all development proposals until the year 2046, thus a positive finding with respect to this level of service standard can be made. Schools: The proposed development is subject to the Palm Beach County School Concurrency. Concurrency approval has been granted from the School District. Section 3.1.1 (C) - Consistency: Pursuant to Section 3.2.1 (Basis for Determining Consistency), the performance standards set forth in Section 3.2.3 (Standards for Site Plan and /or Plat Actions) shall be the basis upon which a finding of overall consistency is to be made. As described in Appendix "A ", a positive finding for consistency can be made as it relates to Standards for Plat Actions. Section 3.1.1 (D) - Compliance with the Land Development Regulations: • LDR Section 5.3.1(A) (Plat Required): A plat is required for the project. The property will be subdivided into one development parcel and two dedication parcels for additional right -of -way for the adjacent streets and alley. • LDR Section 4.3.4(K) (Development Standards Matrix): Open space, building setbacks (subject to CBD design guidelines) and building height were addressed with approval of the site plan for the project. • LDR Section 5.3.1(Right -of -Way Dedication): 5 feet of additional right -of -way SE 3rd Avenue, 2.5 feet of additional right -of -way for SE 1st Street, and 2 feet of additional right -of -way for the north -south alley located along the east side of the property, together with corner clips, are being dedicated by this plat. A complete review of the proposed site plan for compliance with the Land Development Regulations was included as part of the Site Plan Review process. P &Z Board Staff Report, Meeting of March 18, 2013: Sofa Delray One Plat Page 4 Comprehensive Plan Policies: A review of the objectives and policies of the Comprehensive Plan was conducted with Site Plan approval and all applicable objectives or policies along with a discussion on how they were addressed is attached as Appendix "C ". TECHNICAL ITEMS Technical comments from the Planning and Zoning and the Environmental Services Departments are attached as Appendix "B ", and must be addressed prior to scheduling of the plat for City Commission. While there are remaining comments, they are minor in nature and will not impact the general plat diagram. REVIEW BY OTHERS Courtesy Notices: Courtesy notices have been provided to the following groups and neighborhood associations: • Neighborhood Advisory Council • Delray Citizen's Coalition Letters of objection or support, if any, will be presented at the Planning and Zoning Board meeting. ASSESSMENT AND CONCLUSION The proposed plat is consistent with the Zoning and Future Land Use Map designation for the subject property. Positive findings can be made with respect to LDR Section 2.4.5(J) (Major Subdivisions), LDR Section 3.1.1 (Required Findings for Land Use and Land Development Applications), Section 3.2.3 (Standards for Site Plan and /or Plat Actions) and the Goals, Objectives and Policies of the Comprehensive Plan. The plat will require minor technical modifications, as listed in "Appendix "B" - Technical Items" section of this report, before it can advance to the City Commission. ALTERNATIVE ACTIONS A. Continue with direction. B. Move a recommendation of approval to the City Commission of the Preliminary Plat and certification of the Final Plat for Sofa Delray One, 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 criteria set forth in Section 2.4.5(J) (Major Subdivisions), Section 3.2.3 (Standards for Site Plan and /or Plat Actions) and Section 3.1.1 (Required Findings for Land Use and Land Development Applications) of the Land Development Regulations, subject to conditions. C. Approve the preliminary plat, and require submittal of a final plat to be processed separately. D. Deny the preliminary plat and final plat with basis stated. P &Z Board Staff Report, Meeting of March 18, 2013: Sofa Delray One Plat Page 5 STAFF RECOMMENDATION Move a recommendation of approval to the City Commission of the Preliminary Plat and certification of the Final Plat for the Sofa Delray One, 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 criteria set forth in Section 2.4.5(J) (Major Subdivisions), Section 3.2.3 (Standards for Site Plan and /or Plat Actions) and Section 3.1.1 (Required Findings for Land Use and Land Development Applications) of the Land Development Regulations, subject to the following condition: 1. That all comments under the "Technical Items" section (Appendix "B ") of the report be addressed prior to scheduling the plat for City Commission action. Attachments: • Appendix A • Appendix B • Appendix C • Location Map • Reduced Plat P &Z Board Staff Report, Meeting of March 18, 2013: Sofa Delray One Plat Paqe 6 APPENDIX - A STANDARDS FOR PLAT ACTIONS A. Building design, landscaping, and lighting (glare) shall be such that they do not create unwarranted distractions or blockage of visibility as it pertains to traffic circulation. Not applicable Meets intent of standard Does not meet intent X B. Separation of different forms of transportation shall be encouraged. This includes pedestrians, bicyclists, and vehicles in a manner consistent with policies found under Objectives D -1 and D -2 of the Transportation Element. Not applicable Meets intent of standard X Does not meet intent C. Open space enhancements as described in Policies found under Objective B -1 of the Open Space and Recreation Element are appropriately addressed. Not applicable X Meets intent of standard Does not meet intent D. The City shall evaluate the effect that any street widening or traffic circulation modification may have upon an existing neighborhood. If it is determined that the widening or modification will be detrimental and result in a degradation of the neighborhood, the project shall not be permitted. Not applicable X Meets intent of standard Does not meet intent E. Development of vacant land which is zoned for residential purposes shall be planned in a manner which is consistent with adjacent development regardless of zoning designations. Not applicable X Meets intent of standard Does not meet intent P &Z Board Staff Report, Meeting of March 18, 2013: Sofa Delray One Plat Paqe 7 F. Vacant property shall be developed in a manner so that the future use and intensity are appropriate in terms of soil, topographic, and other applicable physical considerations; complementary to adjacent land uses; and fulfills remaining land use needs. Not applicable X Meets intent of standard Does not meet intent G. Redevelopment and the development of new land shall result in the provision of a variety of housing types which shall continue to accommodate the diverse makeup of the City's demographic profile, and meet the housing needs identified in the Housing Element. This shall be accomplished through the implementation of policies under Objective B -2 of the Housing Element. Not applicable Meets intent of standard X Does not meet intent H. The City shall consider the effect that the proposal will have on the stability of nearby neighborhoods. Factors such as noise, odors, dust, traffic volumes and circulation patterns shall be reviewed in terms of their potential to negatively impact the safety, habitability and stability of residential areas. If it is determined that a proposed development will result in a degradation of any neighborhood, the project shall be modified accordingly or denied. Not applicable Meets intent of standard X Does not meet intent I. Development shall not be approved if traffic associated with such development would create a new high accident location, or exacerbate an existing situation causing it to become a high accident location, without such development taking actions to remedy the accident situation. Not applicable Meets intent of standard X Does not meet intent J. Tot lots and recreational areas, serving children from toddler to teens, shall be a feature of all new housing developments as part of the design to accommodate households having a range of ages. This requirement may be waived or modified for residential developments located in the downtown area, and for infill projects having fewer than 25 units. Not applicable Meets intent of standard X Does not meet intent P &Z Board Staff Report, Meeting of March 18, 2013: Sofa Delray One Plat Paqe 8 APPENDIX - B TECHNICAL COMMENTS The following comments must be addressed prior to scheduling the plat for City Commission: Plat Comments: Provide per LDR Section 2.4.3 (F) (4), a Composite Utility Plan that shows the location of all existing and proposed utilities (water, sewer, drainage, gas, power, telephone and cable). The Composite Utility Plan needs to be signed by a representative of each utility provider attesting to the fact that services can be accommodated as shown on the Composite Utility Plan. The Composite Utility Plan needs to address the responsibility for relocation of existing services and installation of new services. Please note that FPL indicated that an easement was necessary on the Utility Provider Response Form, but no easement is being provided. 2. Confirm with FPL if they want the easement called FPL easement or U.E. 3. Prior to approval of plat, provide South Florida Water Management District (SFWMD) permit, permit modification or Letter of "No Notice" in accordance with LDR Section 2.4.6(J). 4. A digital copy of plat to be recorded in AutoCAD dwg or dxf format will be required prior to issuance of a permit from the Building Department. 5. Add "Board" after "Chairperson: Planning and Zoning" in City Approvals section on page 1 of plat. 6. Correct spelling of "attorny" to "attorney" in Title Certification Section on page 1 of plat. Provide a response letter with a detailed description of how each of these comments has been addressed with next submittal of revised plans. In addition, please ensure a complete set is provided for the City of Delray Beach Engineering Division. P &Z Board Staff Report, Meeting of March 18, 2013: Sofa Delray One Plat Paqe 9 APPENDIX - C COMPREHENSIVE PLAN POLICIES Future Land Use Element Objective A -1: Property shall be developed or redeveloped, in a manner so that the future use, intensity and density are appropriate in terms of soil, topographic, and other applicable physical considerations; encourage affordable goods and services; are complementary to and compatible with adjacent land uses; and fulfill remaining land use needs. There are no special physical or environmental characteristics of the land that would be negatively impacted by the proposed residential development. The site is bordered by public rights -of -way on all four sides which provide a natural buffer against adjacent land uses. To the east of the site is an existing 16' public alley. Across the alley, to the east, is an existing one - story multi- tenant building, a one -story medical office building and a large two -story commercial building occupied by AT &T. To the west of the site, across SE 3rd Avenue, is vacant property and the FEC railroad. To the north of the site, across SE 1St Street, is an at -grade parking lot which accompanies an existing office building. To the south of the site, across S.E. 2nd Street, is a prior single family residence currently utilized as a private clubhouse. The surrounding properties to the east, north and west are all are zoned Central Business District (CBD). The property to the south, across S.E. 2nd Street, is located within the Osceola Park Redevelopment Area and is zoned RM (Multi - Family Residential). This request for Conditional Use approval to allow for increased density is compatible with the surrounding uses and zoning designations in that the CBD permits, through the Conditional Use process, increased density for multi - family residential dwellings for sites north of S.E. 2nd Street. The subject site meets this location criterion. In terms of fulfilling remaining land use needs, the Housing Element of the Comprehensive Plan states the following: "One of the most important objectives of the City's overall housing policy is the establishment of housing in the downtown area. In the years since adoption of the 1989 Comprehensive Plan the downtown has changed from a somewhat sleepy, seasonally oriented shopping district to a vibrant year -round retail, service, and entertainment area with an active nightlife. A critical missing element is a significant housing development. The City recognizes the importance of providing housing in close proximity to shopping, employment, and transportation, and the need to have a residential base to support the businesses in the downtown area" The proposed SOFA Building #1 will help to fulfill this stated land use need by providing 117 additional dwelling units in the downtown area in close proximity to shopping, employment and transportation, and is therefore consistent with this policy. Future Land Use Element Objective C -3: The Central Business District (CBD) and surrounding neighborhoods, including A -1 -A, Seacrest and Swinton Avenue represents the essence of what is Delray Beach i.e. a "village by the sea ". The continued revitalization of the CBD is essential to achieving the overall theme of the City's Comprehensive Plan by managing growth and preserving the charm. The following policies and activities shall be pursued in the achievement of this objective. Future Land Use Element Policy C -3.2: The "Downtown Delray Beach Master Plan" was adopted by the City Commission on March 19, 2002. Covering the downtown business districts surrounding the Atlantic Avenue corridor between 1 -95 and A -1 -A, it represents P &Z Board Staff Report, Meeting of March 18, 2013: Sofa Delray One Plat Paqe 10 the citizens' vision for the growth and unification of Delray Beach, while still retaining the "village by- the -sea" character of the CBD. The Plan addresses a wide range of issues including infill development, neighborhood parks, shared parking, public art, the roadway and alleyway systems, marketing /economic development, and the need to modify the Land Development Regulations to include design guidelines to retain the character of Delray Beach. Future development and redevelopment in this area shall be consistent with the Master Plan. The following excerpts are from the Downtown Delray Beach Master Plan: On page 36 - "Increasing residential density is absolutely crucial to ensure a healthy and lasting life to the Central Core District. The residential component will be the element that will make the Central Core District evolve from a high -end leisure area for a few, to a true downtown that serves the needs of the community as a whole. It will be the factor that induces the proliferation of services for locals, today very scarce or even non- existent. " On page 38 - "In order to maintain the overall "Village Atmosphere" of the City, but at the same time create enough density to encourage a variety of local services and a more balanced mix of retail in downtown, the Master Plan's recommendation in all the reviewed cases consistently supports higher densities within the CRA's downtown district, especially in the four blocks north and south of the Avenue. It is this Plan's additional recommendation to include a minimum density requirement in the zoning code. Within the downtown area, low, suburban densities will cause more harm than slightly higher ones. Within a downtown area, density is directly associated with the health and success of downtown. " As noted above, increased residential density is crucial to the long -term sustainability of the downtown. The proposed conditional use will allow a residential density of 62.23 units per acre on the subject property. This increased density equates to an additional 61 units over the base density of 30 units per acre. The development proposal will locate a total of 117 residential dwelling units of various floor plans and sizes within the downtown area. The residents of these dwellings will be able to walk to shops, restaurants, cultural areas and parks. They will interact on a regular basis with storekeepers and employees, and their neighbors. They will get to know the downtown much more intimately than the majority of Delray residents. They will play a major role as participants, in and contributors to, the downtown area community. The SOFA Delray Building #1 development proposal is consistent with Future Land Use Element Objective C -3 and Policy C -3.1 as it will facilitate the continued rehabilitation and dynamic revitalization of the CBD zoning district. Transportation Element Policy A -1.5: New residential projects over 25 units and nonresidential projects over 10,000 square feet adjacent to existing or future Palm Tran bus stops shall provide an easement and install a city- approved bus shelter on site. If the project is not adjacent to a bus stop, or a bus shelter already exist, a contribution shall be made to the City in -lieu of providing the bus shelter on site. Currently, the Palm Tran Route #81 (Eastbound Atlantic Avenue) serves this site along SE 1s' Street a Palm Tran with an existing bus stop at the southeast corner of SE 1st Avenue and SE 1st Street. The development should contribute toward the provision of a bus shelter at this location. A contribution of approximately one -half the cost of a bus shelter must be paid prior to certification of the site plan for the development. Thus, this was added as a condition of approval of the site development plan. P &Z Board Staff Report, Meeting of March 18, 2013: Sofa Delray One Plat Paqe 11 Transportation Element Policy D -2.2: Bicycle parking and facilities shall be required on all new development and redevelopment. Particular emphasis is to be placed on development within the TCEA Area. The subject property is located within the City's Transportation Concurrency Exception Area (TCEA), which encompasses the CBD, CBD -RC, OSSHAD, and West Atlantic Avenue Business Corridor. Bicycle racks have been provided in the garage near the lobby's at the north and south end of the project. However, this does not completely address the intent of the policy, which, as expressed in Goal Area D, is to provide a mechanism to encourage alternative options to automobile travel. Bicycle racks provide limited security which is better suited to short term bicycle parking. While this is appropriate for visitors and short term stops by the residents, it is not appropriate for longer term storage. For the use of bicycles to be encouraged, residents must feel that their bicycles are secure. Since adequate storage is not provided in the residential units themselves, it is recommended that a secure storage area, such as bike lockers, be provided for this purpose. Thus, this was added as a condition of approval of the site development plan. Open Space and Recreation Element Policy A -3.1: Tot lots and recreational areas, serving children from toddlers to teens, shall be a feature of all new housing developments as part of design to accommodate households having a range of ages. This requirement may be waived or modified for residential developments located in the downtown area, and for infill projects having fewer than 25 units. The City may require a monetary contribution in -lieu of the provision of on -site facilities where appropriate. This policy may be waived for projects in the downtown because the City recognizes that households located in the downtown are likely to have fewer children than those located in suburban settings. Furthermore, land in the downtown is at a premium and it can be cost prohibitive to provide land intensive recreational features such as tennis courts, volleyball courts, etc. However, the proposed development does provide recreational facilities on the second level of the four story building for its residents which include an amenity deck with extensive planting material, a swimming pool, lounge chairs, fire pits with outdoor seating, a fitness - exercise room, a clubhouse and a game room for younger residents. Other recreational, cultural and open space opportunities located in proximity to the SOFA Delray Building #1 development include Veteran's Park, which contains a large playground and recreational area; the Municipal Beach; Currie Commons Park, which includes a baseball field and playground; the City's Tennis Center; and Old School Square Cultural Center. As playground areas are located close by (Veteran's Park and Currie Commons Park) and other facilities are available on site that can be utilized by children, such as the pool and game room, the intent of this policy has been met. Based on the above, it is appropriate to partially waive (tot lot) this requirement to provide these services entirely on site. Housing Element Objective B -2: 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: Housing Element Policy B -2.2: The development of new adult oriented communities within the City is discouraged. New housing developments shall be designed to accommodate households having a range of ages, especially families with children, and shall be required to provide 3 and 4 bedroom units and activity areas for children ranging from toddlers to teens. This requirement may be waived or modified for residential P &Z Board Staff Report, Meeting of March 18, 2013: Sofa Delray One Plat Paqe 12 developments located in the downtown area, and for infill projects having fewer than 25 units. While the proposed development will not be restricted to occupancy by adults only, it is acknowledged that downtown dwellings are not typically occupied by families with two (2) or more children. To appropriately address the market demand, this development will primarily accommodate single adults, elderly and young professional couples. Thus, it is appropriate that the requirement to provide three (3) and four (4) bedroom units be waived under the provisions of this policy. The development will provide a mix of efficiency (studio units), one (1) and two (2) bedroom units. It is noted that the applicant sought a waiver to increase the percentage of one - bedroom units from a maximum of 30% to 56.41% which was approved with the conditional use by the City Commission at their meeting of December 11, 2012. Housing Objective A -11: To assist residents of the City in maintaining and enhancing their neighborhood, the City, through public input and notification, shall take steps to ensure that modifications in and around the neighborhood do not lead to its decline, such as those described in the following policies. Housing Policy A -11.3: In evaluating proposals for new development or redevelopment, 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. As previously noted, the residents of this development will aid in the revitalization and economic stability of the downtown area. The introduction of additional residential dwelling units will increase safety of the area by introducing more nighttime activity and more "eyes on the street" as a deterrent to criminal behavior. While the development proposal will result in additional 64 AM and 85 PM peak hour trips onto the surrounding roadway network, the number of daily trips generated will not negatively impact the area. It is noted that the location of the outdoor recreation facilities on the second floor "amenity deck" could become a noise issue, especially to the single - family residential development in the Osceola Park Neighborhood south of SE 2nd Street. The amenity deck should be designed to minimize the transmission of noise into the surrounding area. This could include the use of additional landscaping at the edges and the use of sound - absorbing materials. Additionally, amplified music will not be permitted on these deck areas. Thus, this was added as a condition of approval of the site development plan. MEMORANDUM TO: Mayor and City Commissioners FROM: Ronald Hoggard, AICP, Principal Planner Paul Dorling, AICP, Director Planning and Zoning THROUGH: Louie Chapman, Jr., City Manager DATE: May 29, 2013 SUBJECT: AGENDA ITEM 8.B. - REGULAR COMMISSION MEETING OF JUNE 4, 2013 FINAL SUBDIVISION PLAT APPROVAL /SOFA DELRAY TWO ITEM BEFORE COMMISSION The item before the City Commission is the certification of the final plat for a new multiple - family residential development being platted as SOFA Delray Two. The subject property is located on the west side of SE 2nd Avenue, approximately 80' south of SE 1 st Street. BACKGROUND The subject property, which is zoned CBD (Central Business District), comprises a 0.85 acre site which combines three (3) separate parcels. Former development on the properties includes a one -story 4,410 sq. ft. retail store building, built in 1962; a 5,508 sq. ft. warehouse distribution facility, built in 1959; and a one -story 1,440 sq. ft. warehouse structure, built in 1961. All three structures were demolished in 2006, and thus, the site is currently vacant. On December 19, 2012, the Site Plan Review and Appearance Board approved a Class V Site Plan, Landscape Plan and Architectural Elevations to construct a fifty -five (55) unit, four (4) story multi- family residential building with a ninety -eight (98) space parking garage on the ground level. The property is a replat of Lots 10 through 12 and portions of Lot 9 and Lot 13, Block 78, Town of Linton (Now Delray Beach), as recorded in Plat Book 1, Page 3 of the public records of Palm Beach County, Florida. The replat will subdivide the subject property into (3) tracts. Tract "A ", the development parcel, will contain the residential and parking facilities for the new project. Tract `B" is a dedication of 5 feet of additional right -of -way for SE 2nd Avenue; and Tract "C" is a dedication of 2 feet of additional right - of -way for the north -south alley located along the west side of the property. The plat includes a ten foot drainage easement which will accommodate the exfiltration system under the parking garage on the ground floor. A 12' x 8' water easement is being dedicated at the northeast corner of the property and a 10' x 19' utility easement is being dedicated along the alley at the south end of the property for FPL. Plat Anal: City staff has reviewed the plat and determined that all technical comments have been satisfied. Pursuant to LDR Section 3.1.1, prior to approval of development applications, certain findings must be made in a form which is part of the official record. This may be achieved through information in the application, the staff report, or minutes. Findings shall be made by the body which has the authority to approve or deny the development application. As shown in the attached Planning and Zoning Board staff report, positive findings can be made with respect to Future Land Use Map Consistency, Concurrency, Consistency with the Comprehensive Plan, and Compliance with the Land Development Regulations. REVIEW BY OTHERS The Planning and Zoning Board reviewed the Plat at its meeting of March 18, 2013, and recommended approval by a vote of 4 to 0. Courtesy Notices: Courtesy notices have been provided to the following groups and neighborhood associations: • Neighborhood Advisory Council • Delray Citizen's Coalition To date, no letters of objection or support for the Plat have been received. Any future letters of support or objection will be presented at the City Commission meeting. RECOMMENDATION Move approval for the SOFA Delray Two Plat, by adopting the findings of fact and law contained in the staff report and finding that the request and approval thereof is consistent with the Comprehensive Plan and meets the criteria set forth in Section 2.4.50 (Major Subdivisions), Section 3.2.3 (Standards for Site Plan and/or Plat Actions) and Section 3. 1.1 (Required Findings) of the Land Development Regulations. w "L� Lj z A T L A N T I C A V E N U E Li > > z Q Q Lei Li > j -<-17 S. E. 1ST ST. 0 z N Q Lil (n S. E. 2ND ST. z w Li o � Q vi vi z o � N cn (n w W cn S.E. 3RD ST. -- DIGITAL BASE MAP SYSTEM -- MAP REF: S: \Planning & Zoning \DBMS \Fil — Cab \Z —LM 1001 - 1500 \LM1359_Sofa Building #2 N SUBJECT SOFA BUILDING #2 PROPERTY PLANNING AND ZONING DEPARTMENT D LOCATION MAP f it Ell - NEBO BE all 4. 1 ve V vm 1 ve V vm 'I'S I—RUMEN' PPEPARED EN PILLAR CONSULTANTS. INC. JOB A JUNE. 2013 DESCRIPTION & DEDICATION: KNOW 'ALLNTFNRV TBFSFPRFSFNTS: THAT ATLANTIC SHORE A JOINT VENTURE, IS THE OWNER OF THE LAND AS SHOWN ON THE SOUTHWEST ONE - QUARTER OF SECTION 16, TOWNSHIP 46 EAST. PALM BEACH COUNTY. FLORIDA. DESCRIBED AS FOLLOWS Z1SRN�aT`ia THE SOUTH 7.0 FEET OF LOT 9, LOT 10 AND THE NORTH 51.D FEET OF LOT 11, BLOCK 7& DELRAY BEACH (FORMERLY LINTON). PALM BEACH COUNTY. FLORIDA. ACCORDING TO THE PLAT TIEREOF, RECORDED IN PLAT BOOK 1, PAM 3, SHEET 2, OF THE PUBLIC RECORDS OF PALM BEACH COUNTY. FLORIDA. 12. BLOCK 76. CITY OF DELRAY BEACH. FORMERLY KNOWN AS THE TOWN OF LINTON. ACCORDING TO THE PLAT THEREOF ON FILE IN THE OFFICE OF THE CLERK OF THE CIRCU COURT IN AND FOR PALM BEACH COUNTY, FLORIDA, IN PLAT BOOK 1, PAGE 1. PARCEL THREE THE SOUTH 215 FEET OF LOT 12 AND THE NORTH 37.0 FEET OF LOT 13, BLOCK 78. OF DELRAY BEACH. FORMERLY KNOWN AS THE TOWN OF LINTON. ACCORDING TO THE PLAT THEREOF, AS RECORDED IN PLAT BOOK 1, PAGE 3 OF THE PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA. SAID LANDS SITUATE. LYING AND BEING IN THE CITY OF DELRAY BEACH. PALM BEACH COUNTY. FLORIDA. CONTAINING 38,918.41 SQUARE FEET (0.85 ACRES) MORE OR LESS. HAVE CAUSED SAID LANDS TO BE SURVEYED AND PLATTED AS SHOWN HEREON AS THE 'SOFA DELRAY TWO' PLAT AND FURTHER DEDICATES AS FOLLOWS CT HEREBY DEDICATED TO THE CITY OF DELRAY BEACH AS PUBLIC RIGHT —OF —WAY FOR STREET AND UTILITY PURPOSES. TR.\L-1— IS HEREBY DEDICATED TO THE CITY OF DELRAY BEACH AS PUBLIC N 111 I'll 1,11BIe BNT)SI 11 LI OR BON ARE DEDICATED EXCLUSIVELY TO THE CITY OF DELRAY BEACH FOR TIE PUPOSE OF ACCESS. CONSTRUCTION, MAINTENANCE, AND OPERATION ACTIVITIES OF WATER AND SEWER MAINS. DR EASEMENTS(D.E.) ALL DRAINAGE EASEMENTS SHOWN HEREON ARE DEDICATED TO ATLANTIC SHORES OF DELRAY BEACH, A JOINT VENTURE, IT'S SUCCESSORS AND /OR ASSIGNS, AND ARE THE PERPETUAL MAINTENANCE OBLIGATION OF THE SAID ATLANTIC SHORES OF DELRAY BEACH. A HINT VENTURE, WITHOUT RECOURSE TO THE CITY OF DELRAY BEACH. TILE V EASEBAIENT(U.B.), SHOWN EN ON IS DEDICATED TO ANY PUBLIC OR PRIVATE UTILITY, ELECTRIC POWER, GAS SERVICE OR TELEPHONE LINES AND CABLE TELEVISION; PROVIDED HOWEVER. NO SUCH CONSTRUCTION. INSTALLATION. MAINTENANCE AND OPERATION OF CABLE TELEVISION SERVICES SHALL INTERFERE WITH THE FACILITY AND SERVICE OF ELECTRIC. TELEPHONE, GAS OR OTHER PUBLIC FACILITY. IN THE EVENT A CABLE TELEVISION COMPANY DAMAGES THE FLORIDA PUBLIC SERVICE COMMISSION IN ]NESS NHEREOF, THE ABOVE NAMED ATLANTIC SHORES OF DELRAY BEACH, A HINT VENTURE HAS CAUSED THESE PRESENTS TO BE SIGNED BY ITS AND ATTESTED BY ITS THIS _______ DAY OF ________, 2D13 WITNESS:____________ - - -_ BY: ---- ----- ------------ PRINT NAME: TITLE: ACKNOWLEDGMENT: STATE OF FLORIDA ss COUNTY OF PALM BEACH BEFORE ME PERSONALLY APPEARED WHO IS PERSONALLY KNOWN TO ME, OR WHO PRODUCED AS IDENTIFICATION, AND WHO EXECUTED THE FOREGOING INSTRUMENT, AND ACKNOWLEDGED BEFORE ME THAT (HE /SHE) EXECUTED MID INSTRUMENT FOR THE PURPOSES EXPRESSED THEREIN. WITNESS MY HAND AND OFFICIAL SEAL THIS ____— DAY OF — ------------- 2011. M' cemmiaaien eapnea BE,:_______________ - - -_ N ry PuDI'u - SiMe of Fbritlo Cemm�ss�on NO. Print Nome SOFA DELRAY TWO A REPLAT OF THE SOUTH 7.0 FEET OF LOT 9, LOT 10 AND THE NORTH 53 FEET OF LOT 11, BLOCK 78, TOWN OF LINTON (NOW DELRAY BEACH) (P.B. 1, PG. 3, P.B.C.R.), TOGETHER WITH THE SOUTH 23.5 FEET OF LOT 11, AND LOT 12, LESS THE SOUTH 23.5 FEET THEREOF, BLOCK 78, TOWN OF LINTON (NOW DELRAY BEACH) (P.B. 1, PG. 3, P.B.C.R.), TOGETHER WITH THE SOUTH 23.5 FEET OF LOT 12, AND THE NORTH 37.0 FEET OF LOT 13, BLOCK 78, TOWN OF LINTON (NOW DELRAY BEACH) (P.B. 1, PG. 3, P.B.C.R.), LYING IN THE SOUTHWEST ONE - QUARTER OF SECTION 16, TOWNSHIP 46 SOUTH, RANGE 43 EAST, CITY OF DELRAY BEACH, PALM BEACH COUNTY, FLORIDA. LOCATION MAP NOT TO SCALE) SURVEYOR'S NOTES: 1. THE BEARINGS, AS SHOWN HEREON, ARE BASED ON THE WEST LINE OF THE SOWHWEST ONE- QDARTER(1 /4) OF SECTION 16, TOWNSHIP 46 SOUTH, RANGE 41 EAST. THE SAID WEST LINE HAS BEEN ESTABLISHED USING THE CERTIFIED CORNER RECORDS FOR THE WEST ONE- OUARTER(1 /4) CORNER AND THE SOUTHWEST CORNER OF THE SAID SECTION 16. THE SAID WEST ONE- QUARTER(1 /4) CORNER, AS RECORDED IN CERTIFIED CORNER DOCUMENT NUMBER 052534, WITH THE FOLLOWING COORDINATES: NORTHING - 774573.623. FASTING - 959414.427 THE SAID SOUTHWEST CORNER, AS RECORDED IN CERTIFIED CORNER DOCUMENT NUMBER 052541, WITH THE FOLLOWING COORDINATES: NORTHING - ]]1920.911. FASTING - 959485.912 THE SAID WEST LINE OF THE SOUTHWEST ONE- QUARTER(1 /4) BEARS: SOUTH 01'32'37' UST 2. THERE MAY BE ADDITIONAL RESTRICTIONS THAT ARE NOT RECORDED ON THIS PEAT THAT MAY BE FOUND IN THE PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA. 3. THERE SHALL BE NO BUILDINGS OR ANY KIND OF CONSTRUCTION PLACED ON WATER, SEWER OR DRAINAGE EASEMENTS. x10 STRUCTURES SHALL BE PLACED WITHIN A HORIZONTAL DISTANCE OF 1D FEET FROM ANY EXISTING OR PROPOSED CITY OF DELRAY BEACH ANNTNINED WATER, SEWER OR DRAINAGE FACILITIES. CONSTRUCTION OR LANDSCAPING UPON MAINTENANCE OR M41WEN4NCE ACCESS EASEMENTS MUST BE IN CONFORMANCE WITH ALL BUILDING AND ZONING CODES AND/OR ORDINANCES OF THE CITY OF DELRAY BEACH. 4. THERE SHALL BE NO TREES OR SHRUBS PLACED ON UTILITY EASEMENTS WHICH ARE PROVIDED FOR WATER AND SEWER USE OR UPON DRAINAGE EASEMENS. LANDSCAPING ON OTHER UTILITY EASEMENTS SHALL BE ALLOWED ONLY ARER CONSENT OF ALL THE UTILITY COMPANIES OCCUPYING SAME. 5. THE CITY OF DELRAY BEACH IS HEREBY GRANTED THE RIGHT OF ACCESS FOR EMERGENCY AND MAINTENANCE PURPOSES. 6. NOTICE: THIS PLAT. AS RECORDED IN ITS GRAPHIC FORM. IS THE OFFICIAL DEPICTION OF THE SUBDIVIDED LANDS DESCRIBED HEREIN AND WILL IN NO CIRCUMSTANCES BE SUPPLANTED IN AUTHORITY BY ANY OTHER GRAPHIC OR DIGITAL FORM OF THE PLAT. THERE MAY BE ADDITIONAL RESTRICTIONSTHAT ARE NOT RECORDED ON THIS PLAT THAT MAT BE FOUND IN THE PUBLIC RECORDS OF PALM BEACH COUNTY. SHEET 1 OF 2 SHEETS CITY APPROVALS: THIS PLAT OF SOF: D LR1IY 1WO AS APPROVED ON _ A.D. 2011 BY THE CITY COMMI MAYOR CITY CLERK AND REVIEWED, ACCEPTED AND CERTIFIED BT: DIRECTOt OF PLANNING AND ZONING CHAIRPERSON PLANNING AND ZON NG BOARD Cltt ENGINEER DIRECTOR OF ENVIRONMENTAL SERVICES TITLE CERTIFICATION: STATE OF FLORIN 7 SS COUNTY OF OR BFALH JEFFREY L. GREENBERG. ESQ., A CERTIM THAT I HAVE EXAMINED TI TITLE TO THE PROPERTY VESTED 1 NO EMCUMBERANCES OF RECORD DATED: ------ - -_ BY. --- _----- ___________-- - - -___ ATTORNEY -AT -LAW LICENSED IN FLORIDA REVIEWING SURVEYOR'S STATEMENT: 111. NAME D PREPARING SURVEYOR'S STATEMENT: 7x5 IIVSTRUxExT xA5 PAERAIED 52m mu1H UxVERWTY DIANE. MITE 114. DAVE. BORIDA BBSR& SURVEYOR'S CERTIFICATE THIS IS TO CERTIM THAT THE PLAT SHOWN HEREON IS A TRUE AND CORRECT REPRESENATION OF A SURVEY MADE UNDER MY RESPONSIBLE DIRECTION AND SUPERVISION; THAT SAID SURVEY IS ACCURATE TO THE BEST OF MY KNOWLEDGE AND BELIEF: THAT PERMANENT REFERENCE MONUMENTS (P.R.N.'a) HAVE BEEN PLACED AS REWIRED BY LAW, AND THAT PERMANENT CONTROL POINTS (P.C.P.'a) WILL BE SET UNDER THE GUARANTEES POSTED WITH THE CITY OF DELRAY BEACH FOR THE REQUIRED IMPROVEMENTS OF CHAPTER 177, FLORIDA STATUTES, AS AMENDED, AND THE ORDINANCES OF CITY OF DELRAY, FLORIDA. BY: TROT N. LICENSE NO TIX LS6425, P.S.N. DATE . STATE OF FLORIDA 'I'S INSTRUMENT PREPAFER PH PILLAR CONSULTANTS, INC. AC, 2A JOB H1201OB JUNE 2F13 GRAPHIC SCALE ( I>a eem 1 SOFA DELRAY TWO SHEET 2 OF 2 SHEETS A REPLAT OF THE SOUTH 7.0 FEET OF LOT 9, LOT 10 AND THE NORTH 53 FEET OF LOT 11, BLOCK 78, TOWN OF LINTON (NOW DELRAY BEACH) (P.B. 1, PG. 3, P.B.C.R.), TOGETHER WITH THE SOUTH 23.5 FEET OF LOT 11, AND LOT 12, LESS THE SOUTH 23.5 FEET THEREOF, BLOCK 78, TOWN OF LINTON (NOW DELRAY BEACH) (P.B. 1, PG. 3, P.B.C.R.), TOGETHER WITH THE SOUTH 23.5 FEET OF LOT 12, AND THE COIN: oT P °AL. AlAa NORTH 37.0 FEET OF LOT 13, BLOCK 78, TOWN OF LINTON (NOW DELRAY BEACH) (P.B. 1, PG. 3, P.B.C.R.), ING PLAT — FLED FOR RECORD LYING IN THE SOUTHWEST ONE - QUARTER OF SECTION 16, TOWNSHIP 46 SOUTH, RANGE 43 EAST, THIS CITY OF DELRAY BEACH, PALM BEACH COUNTY, FLORIDA. - OA` OF ____ 20—. AND DULY RECORDED IN SDUTNWEST CORNER OF THE SOUTHWEST FLAT BOOR ON PACES ONE- oUARTER (] /41 DF SECIFDN 16. TOWNSHIP as souTH. RANGE 43 EAST HARON PDBOOK, S01°32'37'E 2 S01 °3237 'E 2,653.87' 662.53' CLERK AND COMPTROLLER THE WEST LJNE OF THE NORTHWEST GoRNEP IF THE SlUTHEAEST - . 0C N 171110 1110 SOUTHWEST PURI ART aLa' TovNSr+i PR asRSOU�ra, DeAN�E TasNEasT E 959485,9120 OF SECTION 16, TOWNSHIP 46 SOUTH, RANGE 43 EAST N 774573,8230 E 9594144270 S.E. 1ST AVENUE Do I Wz� TRACT 'C' :g 0• ADDITIONAL RIGHT -OF -WAY z ty,e n in DEDICATED BY THIS PLAT A m 547.00 SQUARE FEET a (0.01 ACRES) SOl °31'54 'E 273.5U' SET PR.H. 501 °31'54'E N 77355DED90 _ _ — — — — — — _ _ _ _ _ _ _ 9 — — — — — — — —. — —T S. E, 2ND AVENUE 50' RIGHT- OE -WAV AC H F L ❑ R I D q F /1 OWN DF LINTDN ADDITIONAL III THIS L AY g pc vecx UINLTDI (~J P.B. 1. PG. 3. P.B. G.R. DEDICATED BY THIS PLAT COAST 1,367.50 SQUARE FEET RIGHT -OF- Wq RgIL R�qD 003 ACRES) H ALLEY Npl °31'54 "W 273.50' - _ � S01°31'S4'E 273.50' tl, Z B _ _�0 D CC)xeo.x_________ _________ m xe� 25,00' LEGEND: 11T RE11 P. B.B - PLA,2 OK RD BOOK PG PALE RO RICO B _ PERMANENT E BE ONUM P R. M . 0 - X` CONCRETE ' MONUMENT 21 IN NORTHING 25.00 TRACT E EAST NO A� D - EAiNACE EASEMENT °ENTERDNE £ 35,003.91 SQUARE FEET C0.81 ACRES) °� Az� A m L CO, mxa�_ ___________________ _____ _ __ _reuse 5. %' CA (11 L----------- - O O SET P.R.N. O R1�NT -RV ve nv� ° B.I E41 N gRn621g6tte SOl °31'54 'E 273.5U' SET PR.H. 501 °31'54'E N 77355DED90 _ _ — — — — — — _ _ _ _ _ _ _ 9 — — — — — — — —. — —T S. E, 2ND AVENUE 50' RIGHT- OE -WAV AC H F L ❑ R I D q F /1 OWN DF LINTDN ADDITIONAL III THIS L AY g pc vecx UINLTDI (~J P.B. 1. PG. 3. P.B. G.R. DEDICATED BY THIS PLAT COAST 1,367.50 SQUARE FEET RIGHT -OF- Wq RgIL R�qD 003 ACRES) H - _ 0 25,00' LEGEND: 11T RE11 P. B.B - PLA,2 OK RD BOOK PG PALE RO RICO B _ PERMANENT E BE ONUM P R. M . 0 - X` CONCRETE ' MONUMENT 21 IN NORTHING 25.00 .W E EAST NO A� D - EAiNACE EASEMENT °ENTERDNE EE - C 77, PLAT P,B,C,A I AREA 'ABLE TRACT TIAOT 1,117 IF F .1 PLANNING AND ZONING BOARD CITY OF DELRAY BEACH MEETING DATE: MARCH 18, 2013 -- -STAFF REPORT - -- ITEM: V. C. SOFA DELRAY TWO PLAT — A plat for a four -story multiple family residential building within the Central Business District consisting of 55 units with a 98 -space parking garage on the ground floor. GENERAL DATA: Agent ............................. Pillar Consultants, Inc. Applicant /Owner ............. Atlantic Shores of Delray Beach Location ......................... West Side of SE 2nd Avenue, Approximately 80' South of SE 1St Street (124, 138, &158 SE 2nd Ave.) Property Size ................. 0.85 Acres Current FLUM .............. Commercial Core (CC) Current Zoning ............... Central Business District (CBD) Adjacent Zoning North: Central Business District (CBD) South: Central Business District (CBD) East: Central Business District (CBD) West: Central Business District (CBD) Existing Land Use.......... Vacant land Proposed Land Use....... Multiple Family Residential Water Service ................ Available Via a service lateral connection to the existing 8" water main located within the SE 2nd Avenue right-of-way. Sewer Service ................ Available Via a service lateral connection to the existing 8" sewer main located within the west alley right - of -way. ■1111 ■� �� ■ MM IS ITEM BEFORE THE BOARD The item before the Board is that of approval of a preliminary plat and certification of a final plat for a new multiple - family residential development being platted as Sofa Delray Two. The subject property is located on the west side of SE 2nd Avenue, approximately 80' south of SE 1St Street. This plat is being processed pursuant to LDR Section 2.4.5(J), Major Subdivisions. BACKGROUND The subject property, which is zoned CBD (Central Business District), comprises a 0.85 acre site which combines three (3) separate parcels. Former development on the properties includes a one -story 4,410 sq. ft. retail store building, built in 1962; a 5,508 sq. ft. warehouse distribution facility, built in 1959; and a one -story 1,440 sq. ft. warehouse structure, built in 1961. All three structures were demolished in 2006, and thus, the site is currently vacant. On December 19, 2012, the Site Plan Review and Appearance Board approved a Class V Site Plan, Landscape Plan and Architectural Elevations to construct a fifty -five (55) unit, four (4) story multi - family residential building with a ninety -eight (98) space parking garage on the ground level. PLAT DESCRIPTION The property is a replat of Lots 10 through 12 and portions of Lot 9 and Lot 13, Block 78, Town of Linton (Now Delray Beach), as recorded in Plat Book 1, Page 3 of the public records of Palm Beach County, Florida. The replat will subdivide the subject property into (3) tracts. Tract "A ", the development parcel, will contain the residential and parking facilities for the new project. Tract "B" is a dedication of 5 feet of additional right -of -way for SE 2nd Avenue; and Tract "C" is a dedication of 2 feet of additional right -of -way for the north -south alley located along the west side of the property. The plat includes a ten foot drainage easement system which will accommodate exfiltration under the parking garage on the ground floor. A 12' x 8' water easement is being dedicated at the northeast corner of the property and a 10' x 10' utility easement is being dedicated along the alley at the south end of the property for FPL. PLAT ANALYSIS Pursuant to Section 3.1.1 of the Land Development Regulations, prior to approval of development applications, certain findings must be made in a form which is part of the official record. This may be achieved through information in the application, the staff report, or minutes. Findings shall be made by the Board to approve or deny the development application. These findings relate to Future Land Use Map, Concurrency and Consistency with the Comprehensive Plan, and Compliance with the Land Development Regulations. Section 3.1.1 (A) - Future Land Use Map: The resulting use of land or structures must be allowed in the zoning district within which the land is situated and said zoning must be consistent with the applicable land use designation as shown on the Future Land Use Map. P &Z Board Staff Report, Meeting of March 18, 2013: Sofa Delray Two Plat Paqe 2 The subject property has a Future Land Use Map (FLUM) designation of Commercial Core (CC) and a zoning designation of CBD which are consistent with one another. Pursuant to LDR Section 4.4.13(D)(14), multiple - family dwelling units, excluding duplexes, are permitted through the conditional use approval process at a density greater than 30 units per acre on property located south of NE 2nd Street and north of SE 2nd Street, subject to the standards and limitations of LDR Section 4.4.13(1). The City Commission made positive findings with respect to the referenced performance standards at its meeting of December 11, 2012; thus positive findings can be made with respect to FLUM consistency. Section 3.1.1 (B) — Concurrency: Pursuant to Section 3.1.1(B) Concurrency as defined pursuant to Objective B -2 of the Future Land Use Element of the Comprehensive Plan must be met and a determination made that the public facility needs of the requested land use and /or development application will not exceed the ability of the City to fund and provide, or to require the provision of, needed capital improvements for the following areas: Water and Sewer: Water service is available via service lateral connections to an existing 8" water main within S.E. 2nd Avenue right -of -way. Two (2) fire hydrants exist along S.E. 2nd Avenue: one at the northeast side of the property and a second one on the east side of SE 2nd Avenue r -o -w. Sewer service is available via service lateral connections to an existing 8" sanitary sewer main within the alley right right -of -way to the west. Pursuant to the Comprehensive Plan, treatment capacity is available at the City's Water Treatment Plant and the South Central County Waste Water Treatment Plant for the City at build -out. Based upon the above, positive findings can be made with respect to this level of service standard. Drainage: Preliminary engineering and drainage plans have been submitted with the proposed development. Drainage will be accommodated via floor drains on the ground floor of the parking garage that will then connect to an exfiltration trench system. Therefore, there appears to be no problems anticipated in accommodating on -site drainage; however, the Engineering Department does have technical comments regarding drainage that will need to be addressed at the time of site plan approval. Based upon the above, positive findings with respect to this level of service standard can be made. Streets and Traffic: The subject property is located within the City's Transportation Concurrency Exception Area (TCEA), which encompasses the CBD, CBD -RC, OSSHAD, and West Atlantic Avenue Business Corridor. The TCEA exempts the above - described areas from complying with the Palm Beach County Traffic Performance Standards Ordinance. Therefore, a traffic study is not required for concurrency purposes; however, a traffic statement is necessary to keep a record of trips approved in the TCEA and for calculation of traffic impact fees. A traffic statement was submitted noting the generation of 475 ADT with 32 AM peak hour trips and 49 PM peak hour trips to the roadway network. Parks and Recreation Facilities: The Open Space and Recreation Element of the City's Comprehensive Plan concludes that "The City will have sufficient recreation facilities at build -out to meet the adopted standards ". A park impact fee is collected to offset any impacts that the project may have on the City's recreational facilities. Pursuant to LDR Section 5.3.2, a park impact fee of $500.00 per dwelling unit will be collected prior to issuance of a building permit for each unit. A total fee of $27,500.00 will be required of this development for parks and recreation purposes. Solid Waste: The proposed 55 dwelling units will generate a total of 28.6 tons of solid waste per year (55 units x 0.52 tons = 28.6 tons). The Solid Waste Authority has indicated that its P &Z Board Staff Report, Meeting of March 18, 2013: Sofa Delray Two Plat Page 3 facilities have sufficient capacity to handle all development proposals until the year 2046, thus a positive finding with respect to this level of service standard can be made. Schools: The proposed development is subject to the Palm Beach County School Concurrency. Concurrency approval has been granted from the School District. Section 3.1.1 (C) - Consistency: Pursuant to Section 3.2.1 (Basis for Determining Consistency), the performance standards set forth in Section 3.2.3 (Standards for Site Plan and /or Plat Actions) shall be the basis upon which a finding of overall consistency is to be made. As described in Appendix "A ", a positive finding for consistency can be made as it relates to Standards for Plat Actions. Section 3.1.1 (D) - Compliance with the Land Development Reaulations: • LDR Section 5.3.1(A) (Plat Required): A plat is required for the project. The property will be subdivided into one development parcel and two dedication parcels for additional right -of -way for the adjacent street and alley. • LDR Section 4.3.4(K) (Development Standards Matrix): Open space, building setbacks (subject to CBD design guidelines) and building height were addressed with approval of the site plan for the project. • LDR Section 5.3.1(Right -of -Way Dedication): 5 feet of additional right -of -way SE 2nd Avenue, and 2 feet of additional right -of -way for the north -south alley located along the west side of the property are being dedicated by this plat. A complete review of the proposed site plan for compliance with the Land Development Regulations was included as part of the Site Plan Review process. Comprehensive Plan Policies: A review of the objectives and policies of the Comprehensive Plan was conducted with Site Plan approval and all applicable objectives or policies along with a discussion on how they were addressed is attached as Appendix "C ". TECHNICAL ITEMS Technical comments from the Planning and Zoning and the Environmental Services Departments are attached as Appendix "B ", and must be addressed prior to scheduling of the plat for City Commission. While there are remaining comments, they are minor in nature and will not impact the general plat diagram. REVIEW BY OTHERS Courtesy Notices: Courtesy notices have been provided to the following groups and neighborhood associations: P &Z Board Staff Report, Meeting of March 18, 2013: Sofa Delray Two Plat Page 4 • Neighborhood Advisory Council • Delray Citizen's Coalition Letters of objection or support, if any, will be presented at the Planning and Zoning Board meeting. ASSESSMENT AND CONCLUSION The proposed plat is consistent with the Zoning and Future Land Use Map designation for the subject property. Positive findings can be made with respect to LDR Section 2.4.5(J) (Major Subdivisions), LDR Section 3.1.1 (Required Findings for Land Use and Land Development Applications), Section 3.2.3 (Standards for Site Plan and /or Plat Actions) and the Goals, Objectives and Policies of the Comprehensive Plan. The plat will require minor technical modifications, as listed in "Appendix "B" - Technical Items" section of this report, before it can advance to the City Commission. ALTERNATIVE ACTIONS A. Continue with direction. B. Move a recommendation of approval to the City Commission of the Preliminary Plat and certification of the Final Plat for Sofa Delray Two, 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 criteria set forth in Section 2.4.5(J) (Major Subdivisions), Section 3.2.3 (Standards for Site Plan and /or Plat Actions) and Section 3.1.1 (Required Findings for Land Use and Land Development Applications) of the Land Development Regulations, subject to conditions. C. Approve the preliminary plat, and require submittal of a final plat to be processed separately. D. Deny the preliminary plat and final plat with basis stated. STAFF RECOMMENDATION Move a recommendation of approval to the City Commission of the Preliminary Plat and certification of the Final Plat for the Sofa Delray Two, 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 criteria set forth in Section 2.4.5(J) (Major Subdivisions), Section 3.2.3 (Standards for Site Plan and /or Plat Actions) and Section 3.1.1 (Required Findings for Land Use and Land Development Applications) of the Land Development Regulations, subject to the following condition: That all comments under the "Technical Items" section (Appendix "B ") of the report be addressed prior to scheduling the plat for City Commission action. Attachments: • Appendix A • Appendix B • Appendix C • Location Map • Reduced Plat P &Z Board Staff Report, Meeting of March 18, 2013: Sofa Delray Two Plat Paqe 5 APPENDIX - A STANDARDS FOR PLAT ACTIONS A. Building design, landscaping, and lighting (glare) shall be such that they do not create unwarranted distractions or blockage of visibility as it pertains to traffic circulation. Not applicable Meets intent of standard Does not meet intent X B. Separation of different forms of transportation shall be encouraged. This includes pedestrians, bicyclists, and vehicles in a manner consistent with policies found under Objectives D -1 and D -2 of the Transportation Element. Not applicable Meets intent of standard X Does not meet intent C. Open space enhancements as described in Policies found under Objective B -1 of the Open Space and Recreation Element are appropriately addressed. Not applicable X Meets intent of standard Does not meet intent D. The City shall evaluate the effect that any street widening or traffic circulation modification may have upon an existing neighborhood. If it is determined that the widening or modification will be detrimental and result in a degradation of the neighborhood, the project shall not be permitted. Not applicable X Meets intent of standard Does not meet intent E. Development of vacant land which is zoned for residential purposes shall be planned in a manner which is consistent with adjacent development regardless of zoning designations. Not applicable X Meets intent of standard Does not meet intent P &Z Board Staff Report, Meeting of March 18, 2013: Sofa Delray Two Plat Paqe 6 F. Vacant property shall be developed in a manner so that the future use and intensity are appropriate in terms of soil, topographic, and other applicable physical considerations; complementary to adjacent land uses; and fulfills remaining land use needs. Not applicable Meets intent of standard X Does not meet intent G. Redevelopment and the development of new land shall result in the provision of a variety of housing types which shall continue to accommodate the diverse makeup of the City's demographic profile, and meet the housing needs identified in the Housing Element. This shall be accomplished through the implementation of policies under Objective B -2 of the Housing Element. Not applicable Meets intent of standard X Does not meet intent H. The City shall consider the effect that the proposal will have on the stability of nearby neighborhoods. Factors such as noise, odors, dust, traffic volumes and circulation patterns shall be reviewed in terms of their potential to negatively impact the safety, habitability and stability of residential areas. If it is determined that a proposed development will result in a degradation of any neighborhood, the project shall be modified accordingly or denied. Not applicable Meets intent of standard X Does not meet intent I. Development shall not be approved if traffic associated with such development would create a new high accident location, or exacerbate an existing situation causing it to become a high accident location, without such development taking actions to remedy the accident situation. Not applicable Meets intent of standard X Does not meet intent J. Tot lots and recreational areas, serving children from toddler to teens, shall be a feature of all new housing developments as part of the design to accommodate households having a range of ages. This requirement may be waived or modified for residential developments located in the downtown area, and for infill projects having fewer than 25 units. Not applicable Meets intent of standard X Does not meet intent P &Z Board Staff Report, Meeting of March 18, 2013: Sofa Delray Two Plat Paqe 7 APPENDIX - B TECHNICAL COMMENTS The following comments must be addressed prior to scheduling the plat for City Commission: Plat Comments: 1. Provide per LDR Section 2.4.3 (F) (4), a Composite Utility Plan that shows the location of all existing and proposed utilities (water, sewer, drainage, gas, power, telephone and cable). The Composite Utility Plan needs to be signed by a representative of each utility provider attesting to the fact that services can be accommodated as shown on the Composite Utility Plan. The Composite Utility Plan needs to address the responsibility for relocation of existing services and installation of new services. Please note that FPL indicated that an easement was necessary on the Utility Provider Response Form, but no easement is being provided. 2. Provide Mass Transit Easement if a bus shelter is requested by School Board and would be located on private property. 3. Confirm with FPL if they want the easement called FPL easement or U.E. 4. Prior to approval of plat, provide South Florida Water Management District (SFWMD) permit, permit modification or Letter of "No Notice" in accordance with LDR Section 2.4.6(J). 5. A digital copy of plat to be recorded in AutoCAD dwg or dxf format will be required prior to issuance of a permit from the Building Department. 6. Correct spelling of "purpos" to "purpose" in Dedication statement for the Utility Easement on page 1 of plat. 7. Correct spelling of "therin" to "therein" in Acknowledgement Section on page 1 of plat. 8. Correct spelling of "attorny" to "attorney" in Title Certification Section on page 1 of plat. 9. Add "Board" after "Chairperson: Planning and Zoning" in City Approvals section on page 1 of plat. 10. Provide a response letter with a detailed description of how each of these comments has been addressed with next submittal of revised plans. In addition, please ensure a complete set is provided for the City of Delray Beach Engineering Division. P &Z Board Staff Report, Meeting of March 18, 2013: Sofa Delray Two Plat Paqe 8 APPENDIX - C COMPREHENSIVE PLAN POLICIES Future Land Use Element Objective A -1: Property shall be developed or redeveloped, in a manner so that the future use, intensity and density are appropriate in terms of soil, topographic, and other applicable physical considerations; encourage affordable goods and services; are complementary to and compatible with adjacent land uses; and fulfill remaining land use needs. There are no special physical or environmental characteristics of the land that would be negatively impacted by the proposed residential development. The development will be complimentary with the future surrounding residential and commercial developments (Saxena White, The Mark, and the Boueri Office Building, and The Strand) and will provide a customer base for the businesses on a year -round basis, which in turn will provide economic stability and growth for the downtown area. In terms of fulfilling remaining land use needs, the Housing Element of the Comprehensive Plan states the following: "One of the most important objectives of the City's overall housing policy is the establishment of housing in the downtown area. In the years since adoption of the 1989 Comprehensive Plan the downtown has changed from a somewhat sleepy, seasonally oriented shopping district to a vibrant year -round retail, service, and entertainment area with an active nightlife. A critical missing element is a significant housing development. The City recognizes the importance of providing housing in close proximity to shopping, employment, and transportation, and the need to have a residential base to support the businesses in the downtown area" The proposed SOFA Building #2 will help to fulfill this stated land use need by providing 55 additional dwelling units in the downtown area in close proximity to shopping, employment and transportation, and is therefore consistent with this policy. Future Land Use Element Objective C -3: The Central Business District (CBD) and surrounding neighborhoods, including A -1 -A, Seacrest and Swinton Avenue represents the essence of what is Delray Beach i.e. a "village by the sea ". The continued revitalization of the CBD is essential to achieving the overall theme of the City's Comprehensive Plan by managing growth and preserving the charm. The following policies and activities shall be pursued in the achievement of this objective. Future Land Use Element Policy C -3.2: The "Downtown Delray Beach Master Plan" was adopted by the City Commission on March 19, 2002. Covering the downtown business districts surrounding the Atlantic Avenue corridor between 1 -95 and A -1 -A, it represents the citizens' vision for the growth and unification of Delray Beach, while still retaining the "village by- the -sea" character of the CBD. The Plan addresses a wide range of issues including infill development, neighborhood parks, shared parking, public art, the roadway and alleyway systems, marketing /economic development, and the need to modify the Land Development Regulations to include design guidelines to retain the character of Delray Beach. Future development and redevelopment in this area shall be consistent with the Master Plan. The following excerpts are from the Downtown Delray Beach Master Plan: P &Z Board Staff Report, Meeting of March 18, 2013: Sofa Delray Two Plat Paqe 9 On page 36 - "Increasing residential density is absolutely crucial to ensure a healthy and lasting life to the Central Core District. The residential component will be the element that will make the Central Core District evolve from a high -end leisure area for a few, to a true downtown that serves the needs of the community as a whole. It will be the factor that induces the proliferation of services for locals, today very scarce or even non- existent. " On page 38 - "In order to maintain the overall "Village Atmosphere" of the City, but at the same time create enough density to encourage a variety of local services and a more balanced mix of retail in downtown, the Master Plan's recommendation in all the reviewed cases consistently supports higher densities within the CRA's downtown district, especially in the four blocks north and south of the Avenue. It is this Plan's additional recommendation to include a minimum density requirement in the zoning code. Within the downtown area, low, suburban densities will cause more harm than slightly higher ones. Within a downtown area, density is directly associated with the health and success of downtown. " As noted above, increased residential density is crucial to the long -term sustainability of the downtown. The proposed conditional use will allow a residential density of 64.7 units per acre on the subject property. This increased density equates to an additional 30 units over the base density of 30 units per acre. The development proposal will locate a total of 55 residential dwelling units of various floor plans and sizes within the downtown area. The residents of these dwellings will be able to walk to shops, restaurants, cultural areas and parks. They will interact on a regular basis with storekeepers and employees, and their neighbors. They will get to know the downtown much more intimately than the majority of Delray residents. They will play a major role as participants, in and contributors to, the downtown area community. The SOFA Delray Building #2 development proposal is consistent with Future Land Use Element Objective C -3 and Policy C -3.1 as it will facilitate the continued rehabilitation and dynamic revitalization of the CBD zoning district. Transportation Element Policy A -1.5: New residential projects over 25 units and nonresidential projects over 10,000 square feet adjacent to existing or future Palm Tran bus stops shall provide an easement and install a city- approved bus shelter on site. If the project is not adjacent to a bus stop, or a bus shelter already exist, a contribution shall be made to the City in -lieu of providing the bus shelter on site. Currently, the Palm Tran Route #81 (Eastbound Atlantic Avenue) serves this site along SE 1s' Street a Palm Tran with an existing bus stop at the southeast corner of SE 1s' Avenue and SE 1s' Street The development should contribute toward the provision of a bus shelter at this location. A contribution of approximately one -half the cost of a bus shelter must be paid prior to certification of the site plan for the development, and thus, this is attached as a condition of approval. Subject to the compliance of this condition of approval, the development will comply with Transportation Element Policy A -1.5. Transportation Element Policy D -2.2: Bicycle parking and facilities shall be required on all new development and redevelopment. Particular emphasis is to be placed on development within the TCEA Area. The subject property is located within the City's Transportation Concurrency Exception Area (TCEA), which encompasses the CBD, CBD -RC, OSSHAD, and West Atlantic Avenue Business Corridor. Bicycle racks have been provided in the garage at the north and south end of the project. However, this does not completely address the intent of the policy, which, as expressed in Goal Area D, is to provide a mechanism to encourage alternative options to automobile travel. Bicycle racks provide limited security which is better suited to short term bicycle parking. While this is appropriate for visitors and short term stops by the residents, it is not appropriate for P &Z Board Staff Report, Meeting of March 18, 2013: Sofa Delray Two Plat Paqe 10 longer term storage. For the use of bicycles to be encouraged, residents must feel that their bicycles are secure. Since adequate storage is not provided in the residential units themselves, it is recommended that a secure storage area, such as bike lockers, be provided for this purpose, and thus, this is attached as condition of approval. Subject to this condition of approval being addressed, the development will comply with Transportation Element Policy D -2.2. Open Space and Recreation Element Policy A -3.1: Tot lots and recreational areas, serving children from toddlers to teens, shall be a feature of all new housing developments as part of design to accommodate households having a range of ages. This requirement may be waived or modified for residential developments located in the downtown area, and for infill projects having fewer than 25 units. The City may require a monetary contribution in -lieu of the provision of on -site facilities where appropriate. This policy may be waived for projects in the downtown because the City recognizes that households located in the downtown are likely to have fewer children than those located in suburban settings. Furthermore, land in the downtown is at a premium and it can be cost prohibitive to provide land intensive recreational features such as tennis courts, volleyball courts, etc. However, the proposed development does provide recreational facilities on the second level of the four story building for its residents which include an amenity deck with extensive planting material, trellis areas with removable fabric, a Jacuzzi, a spa and a shallow water feature with lounge chairs, fire pits with outdoor seating and barbecue, a fitness - exercise room, a clubhouse, restrooms, and a kid's room for younger residents. Other recreational, cultural and open space opportunities located in proximity to the SOFA Delray Building #2 development include Veteran's Park, which contains a large playground and recreational area; the Municipal Beach; Currie Commons Park, which includes a baseball field and playground; the City's Tennis Center; and Old School Square Cultural Center. As playground areas are located close by (Veteran's Park and Currie Commons Park) and other facilities are available on site that can be utilized by children, such as the pool and game room, the intent of this policy has been met. Based on the above, it is appropriate to partially waive (tot lot) this requirement to provide these services entirely on site. Housing Element Objective B -2: 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: Housing Element Policy B -2.2: The development of new adult oriented communities within the City is discouraged. New housing developments shall be designed to accommodate households having a range of ages, especially families with children, and shall be required to provide 3 and 4 bedroom units and activity areas for children ranging from toddlers to teens. This requirement may be waived or modified for residential developments located in the downtown area, and for infill projects having fewer than 25 units. While the proposed development will not be restricted to occupancy by adults only, it is acknowledged that downtown dwellings are not typically occupied by families with two (2) or more children. To appropriately address the market demand, this development will primarily accommodate single adults, elderly and young professional couples. Therefore, it is appropriate that the requirement to provide three (3) and four (4) bedroom units not apply under the provisions of this policy. The development will provide a mix of efficiency (studio units), one (1) and two (2) bedroom units. It is noted that the applicant sought a waiver to increase the P &Z Board Staff Report, Meeting of March 18, 2013: Sofa Delray Two Plat Paqe 11 percentage of one - bedroom units from a maximum of 30% to 54.5 %. This waiver was approved by the City Commission when they approved the conditional use on December 11, 2012. Housing Objective A -11: To assist residents of the City in maintaining and enhancing their neighborhood, the City, through public input and notification, shall take steps to ensure that modifications in and around the neighborhood do not lead to its decline, such as those described in the following policies. Housing Policy A -11.3: In evaluating proposals for new development or redevelopment, 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. As noted previously, the residents of this development will aid in the revitalization and economic stability of the downtown area. The introduction of additional residential dwelling units will increase safety of the area by introducing more nighttime activity and more "eyes on the street" as a deterrent to criminal behavior. While the development proposal will result in additional 32 AM and 49 PM peak hour trips onto the surrounding roadway network, the number of daily trips generated will not negatively impact the area. Based upon the above, the development proposal will be consistent with Housing Policy A -11.3. MEMORANDUM TO: Mayor and City Commissioners FROM: Tamara Genius, Plan Reviewer Victor Majtenyi, Interim Director of Environmental Services THROUGH: Louis Chapman, Jr., City Manager DATE: May 24, 2013 SUBJECT: AGENDA ITEM 8.C. - REGULAR COMMISSION MEETING OF JUNE 4, 2013 HOLD HARMLESS AGREEMENT/ 5 S.E. 2ND AVENUE ITEM BEFORE COMMISSION Commission approval to execute a Hold Harmless Agreement for change of ownership at Rack's Restaurant. BACKGROUND A Hold Harmless Agreement was previously approved at the August 7, 2012 Commission meeting for the installation of a dumpster with enclosure in a utility easement for Rack's Restaurant. The ownership has since changed, therefore a Hold Harmless Agreement is being executed under the name of BOEJ, LLC for the improvements within the utility easement. RECOMMENDATION Staff recommends approval of the Hold Harmless Agreement. Prepared by. RETURN: R. Brian Shutt, Esq. City Attorney's Off= 200 N.W. 1st Avenue Delray Beach, FL 33444 HOLD HARWESS AGREEME NT FOR JMPROVE MEJ NTS PLACED WITHIN A UfILITY EASEMENT THIS HOLD A.R. ES AGRE E MENT, is entered into this day of 2013 by and between the CITY OF DEL RAY BEACH, FLORIDA, (hereinafter referred to as "CITY") and BOEJ, LLC (hereinafter referred to as "OWNER") WITNESSETH WHEREAS, OWNER owns property located at 5 SE 2' Avenue, Delray Beach, Florida, and has requested CITY to allow for the installation of a dumpster with steel posts supporting gates and a fence sereen in a public utility easement; and WHEREAS, OWNER agrees to hold CITY harmless for any damage which might be caused to the dumpster with steel posts supporting gates and a fence screen as a result of maintenance within the public utility easement or any action brought against the CITY as a result of the installation of a dumpster with steel posts supporting gates and a fence screen in the public utility ease=nt. NOW THE REFORE, for the mutual covenants and matters set forth herein, as of the date set forth above, the parties hereby agree as follows: 1.. The recitations set forth above are incorporated herein. 2. OWNER is the owner of property described in Exhibit "A" . which also shows I or describes the public utility easement. 3. That OWNER wishes to install a Dumpster with gates and a side fence with posts set in concrete in the area, as shown on Exhibit "B", in the public utility easement pursuant to the City of Delray Beach Code of Ordinances. Such gate support posts shall not be installed any closer than 3.0' to the public utilities. 4. OVVNER acknowledges that the CITY shall assume no responsibility or maintenance for the dumpster with steel posts supporting gates and a fence screen and any improvements thereto, which OWNER places within the public utility easement and that OWNER shall be responsible for the upkeep and maintenance of such dumpster with steel posts supporting gates and a fence screen and associated improvements in the public utility easement in accordance with the Code of Ordinances of the CITY. 5. OWNER, in consideration of the mutual covenants set forth herein, agrees to defend, indemnify, and hold harmless the MY, its agents, officers, employees and servants, ftom any and all claims, suits, causes of action or any claim whatsoever made, and damages, which may result from the placement or existence of the dunipster with steel posts supporting gates and a fence screen and improvements in the public utility easement. OWNER timber agrees to hold the CITY, its agents, officcers, employees and servants haimlessIor any Unage to the dumpster with steel posts supporting gates and a fence screen and associated improvements OWNER places within the public utility easement. It is understood that arty cost for replacement or repair of the dumpster with steel posts supporting gates and a fence screen and associated improvements shall be the OWNER'S responsibility, and the C= will not be held liable for any damage to the dumpster with steel posts supporting gales and a fence screen and associated improvements as a result of any maintenance or construction within the public A utility easement by the CITY. 6. The CITY may request, in its sole discretion, that the dumpster with steel posts supporting gates and a fence screen be removed from the public easement In the event of such request, OWNER agrees to remove the dumpster with steel posts supporting gates and a fence screen from the public easement within 30 days of the CITY mailing written notice to the OWNER, If OWNE R fails to remove the dumpster with steel posts supporting gates and a fence screen from the public easement within 30 days of the CITY mailing the written notice to OWNER, the MY may remove the dumpster with steel posts supporting gates and a fence screen and bill the OWNER for such removal costs. 7. All notice required or allowed by this Agreement shall be delivered i-a person or mailed to the party at the following address: CITY- Environmental Services Director City of Delray Beach 434 South Swinton Avenue Delray Beach, FL 33444 OWNER: BOEJ, LLC 140 North Federal Highway Suite 200 Boca Raton, FL 33432 8. This Agreement shall be binding on the Parties, their respective heirs, successors, legal representatives, and permitted assigns and shall be recorded in the Public Records of Palm Beach County and shall run with the land. 3 9. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida. Venue for any claim or lawsuit arising out of this Agreement shall be in Palm Beach County. ATTEST: By: City Clerk Approved as to Form: By: City Attorney WITNESSES: (Print or Type Name) .. A'' :?. (Pri°n r Type Nain4 r STATE OF " COUNTY OFD." CITY OF DELRAY BEACH, FLORIDA II: Cary D. Glickstein, Mayor OWNER: By: AMIN ht P .ss M, 6c�6-`tim"'@- .�:= {!�'�gl. (Print or Type Name) 1 (SEAL) 1/)�The foregoing instrument was acknowledged before me this � day of 2013 by 'Q .'' (name of officer' agent), of P. ¢m (name of corporation), ac (State or place of incorporation) corporation, on behalf of the corporation. He /She is personally known to me or has produced _ ; zru'i (type of identi IQ lion) s identification and did/did not take an oath, r ff k Sigga )ftr6 Qf ai� Public - State ofE _._..,.. MARJORIE S. MARGOLIES Notary put lic . State of Florida MY COMM. Expires Nov 14, 2014 Commission # EE 41724 w 6nndad Through Nallonal Nolary Assn DESCRIPTION: THE SOUTHERLY 79._-3 FED' -Or' L. `r 1.. LQ�K � OP iffy OF` bpi A;'? .c,' ,' FOWAK -' (r L 't�i�i .P .-' eCAC WJ zY; FLi�MbA, AS F?EI� PLAT T ERM' M. F(LE •I T` E '.Q)�Fb � ;CL a �k� ART I ANA- -FOR, � LM '8F-,�C COIJNT'Y� FLORIDA, RECORM0 IN, PLAT Rte#€ 1, P•. E 3. -ACRO§S THE FQ EO& S� UND5 L`Y JACtMT To .Atb N 17H CF TFJE AWE DMMIBM PROPERTY (ALL OF 5A19, FOIJ F RESERVING EASEMENT FOP. 1W HESS MD WRESS, ACHUGS TR:. EASTUaLT Fo. 1r °T ° TH-e A PROPERTY. SW5JECT 7f >ti.C1VEN i rS, RE E l 'i , M- SlAtV A. O EAS MZJ4:Yt - : �� �¢ VAG � �� A� g $� T��� SUB -SE ENT TO ME EMBER 31, 201'a pa 3' ale 6r,, min . to waWr line line I x 6 p.t, shadowbox fence, 6' ht. V gaiv, steel post, set 3' deep in 12" — --U— Appray- loc,,Ilonol-undov�,raund Wiles veri�� pe jor tu Wnstuation! Ltop4petflel'd verifi.ed prior tu constuatiom _] I X 6 PI shadow box fence, T It 4!' gatv, sted post, set 3' deep in 12" calfar. Ex. asphalt. DUMPSTER ENCLOSURE DETAIL mts. I ■ r • Mddmo nu � 0s Pj • i���� + `III d6-. nLIOA zi anu { id # 4 4 ti trip } r CL MEMORANDUM TO: Mayor and City Commissioners FROM: Timothy Tack, Project Manager ESD /CRA Randal Krejcarek, City Engineer Victor Majtenyi, Interim Director of Environmental Services THROUGH: Louie Chapman, Jr., City Manager DATE: May 24, 2013 SUBJECT: AGENDA ITEM 8.D. - REGULAR COMMISSION MEETING OF JUNE 4, 2013 SUPPLEMENTAL AGREEMENT NO. 1 TO THE LAP AGREEMENT / FDOT ITEM BEFORE COMMISSION This is a request for Commission approval /authorization for Mayor to execute the Supplemental Agreement #1 to the Local Agency Program (LAP) Agreement with Florida Department of Transportation (FDOT) for the construction of the Federal Highway Beautification Project. Project No. 2009 -009. BACKGROUND On March 20, 2012, City Commission the Local Agency Program (LAP) Agreement with Florida Department of Transportation (FDOT) for the construction of the Federal Highway Beautification Project. This Supplemental Agreement #1 adds Exhibit E and F regarding Pavement Maintenance that were inadvertently omitted from the original agreement. Exhibits E and F identify that the City is responsible for the maintenance of the stamped asphalt crosswalks located at Federal Highway and Atlantic Avenue. This supplemental agreement also corrects page one of the Federal Aid Project Funding Request. RECOMMENDATION Staff recommends approval. 525- 010 -32 PRODUCTION SUPPORT 09/11 Page 1 of 2 SUPPLEMENTAL NO. STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION FPN One LOCAL AGENCY PROGRAM 420412- 1/2 -58 -01 DUNS NO. SUPPLEMENTAL CONTRACT NO. 80- 939 -7102 AGREEMENT AQM -22 The Florida Department of Transportation and the City of Delray Beach desires to supplement the original Agreement entered into and executed on May 8, 2012 as identified above. All provisions in the original Agreement and supplements, if any, remain in effect except as expressly modified by this supplement. The changes to the Agreement and supplements, if any, are described as follows: PROJECT DESCRIPTION Name US 1 / SR -5 and Atlantic Ave Length 4.833 Miles Termini South of Harborside Dr. to Bond Wav and Southbound US -1 to Northbound US -1 Description of Work: Milling and resurfacing or reconstructing portions SR- 5 /US -1 from South of Harborside Dr. to Bond Way (project consist of landscaping, lighting, and minor drainage improvements) and SR -806/ Atlantic Ave. from Southbound of US -1 to Northbound US -1. Reason for Supplement and supporting engineering and /or cost analysis: This Supplemental Agreement is to add Exhibit E &F for Pavement Maintenance to FM# 420412- 1/2- 58 -01. These Exhibits were inadvertently omitted from the original Agreement. This Supplemental Agreement also corrects page one of the Federal Aid Project Funding Request Type 1 Categorical Exclusion determination on 11/15/2011 should be corrected to say Programmatic Categorical Exclusion determination on: 1/31/2012. 525- 010 -32 PRODUCTION SUPPORT 09/11 Page 2 of 2 SUPPLEMENTAL NO. STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION FPN One LOCAL AGENCY PROGRAM SUPPLEMENTAL 420412- 1/2 -58 -01 DUNS NO. AGREEMENT CONTRACT NO. 80- 939 -7102 AQM -22 IN WITNESS WHEREOF, the parties have caused these presents to be executed the day and year first above written. AGENCY THE CITY OF DELRAY BEACH STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION By: By: Name: Name: Title: Title: Attest: Attest: Name: Name: Title: Title: Date Legal Review: Date: SECTION No.: FM No. (s) COUNTY.: S.R. No.. EXHIBIT E SPECIALITY SURFACING INSTALLATION 93020100 420412 -1 &2 -58 -01 Palm Beach SR-5 This Exhibit forms an integral part of the DISTRICT FOUR (4) Local Agency Program AGREEMENT between the State of Florida, Department of Transportation (DEPARTMENT) and The City of Delray Beach (AGENCY). Prior to acceptance by the DEPARTMENT, all lanes for each of the specialty surfacing crossings projects shall be tested for friction using either a locked wheel tester in accordance with FM 5 -592 (Florida Test Method for Friction Measuring Protocol for Patterned Pavements) or a dynamic Friction Tester in accordance with ASTM E11911. The initial friction resistance shall be at least 35 obtained at 40 mph with a ribbed tire test (FN40R) or equivalent as specified in Table 1. Failure to achieve this minimum resistance shall require all deficient crosswalk areas to be removed to their full extent (lane -by -lane) and replaced with the same product installed initially. If more than 50% of the lanes in the intersection require replacement, the entire intersection installation may be reconstructed with a different product on the Qualified Products List (QPL). All lanes receiving new installations shall again be friction tested within 60 -90 days of their acceptance by the local AGENCY. The initial friction resistance of each new installation shall be at least 35 (FN40R) or equivalent as specified in Table 1. Failure to achieve this minimum resistance shall require all deficient areas be removed to their full extent (lane - by -lane) and replaced with the same product installed initially. If more than 50% of the lanes in the intersection require replacement, the entire intersection installation may be reconstructed with a different product on the DEPARTMENT `S QPL. • The results of all friction tests and condition surveys shall be sent to the FDOT District Four Operations Warranty Coordinator at the local FDOT District Four Operations Center located at Palm Beach Operations, 7900 Forest Hill Blvd., West Palm Beach, FL 33413 (561) 432 -4966, with a cover letter either certifying that the crosswalks comply with the above stated requirements; or what remedial action will be taken to restore the friction and /or integrity of the crosswalk area. SATransportation Development \PM \PA \LPA \Projects \Projects - Palm Beach \Delray_Beach \420412 -1 & 420412 - 2\CONTRACT\SUPPLEMENTAL AGREEMENT \Exhibit EF for pavement Maint written by Thue Lee.doex 2. When remedial action is required in accordance with the above requirements, the local AGENCY at its own expense shall complete all necessary repairs within 90 days of the date the deficiency was identified. 3. Should the local AGENCY fail to satisfactorily perform any required remedial work in accordance with this agreement, the DEPARTMENT reserves the right to replace the specialty surfacing pavement with conventional pavement and bill the local AGENCY for this cost. No more than two full specialty surfacing pavement depth repairs shall be made to an area without first resurfacing the pavement to its full depth. Table 1: Pavement Friction Number Conversions for Test Speeds Other Than 40 mph 30 mph Test Speed FN Results To Convert to 40 mph Results 50 mph Test Speed FN Results To Convert to 40 mph Results <29 Subtract 1 <26 Add 1 29 to 47 Subtract 2 26 to 42 Add 2 48 to 67 Subtract 3 43 to 60 Add 3 SATransportation Development \PM \PA \LPA \Projects \Projects - Palm Beach \Delray_Beach \420412 -1 & 420412 - 2\CONTRACT\SUPPLEMENTAL AGREEMENT \Exhibit EF for pavement Maint written by Thue Lee.doex SECTION No.: FM No. (s) COUNTY: S.R. No.. EXHIBIT F SPECIALTY SURFACING MAINTENANCE 93020100 420412 -1 &2 -58 -01 Palm Beach SR-5 This Exhibit forms an integral part of the DISTRICT FOUR (4) Local Agency Program AGREEMENT between the State of Florida, Department of Transportation (DEPARTMENT) and The City of Delray Bach (AGENCY). On a biennial basis, the area of each crosswalk in the outside traffic lane on the project shall be tested for friction resistance in accordance with ASTM E274 or ASTM E1911. Friction resistance shall be no less than 35 FN40R or equivalent as specified in Table 1. Failure to achieve this minimum resistance shall require all lanes of the crosswalk to be friction tested to determine the extent of the deficiency. All deficient areas shall be removed to their full extent (lane -by -lane) and replaced with the same product installed initially. If more than 50% of the lanes in the intersection require replacement, the entire intersection installation may be reconstructed with a different product on the QPL. 2. The integrity of the specialty surfacing pavement shall be maintained throughout its life. The local AGENCY shall conduct biennial condition surveys of the specialty surfacing pavement for rutting, raveling, pot holes, delamination and cracking for the life of the adjacent pavement. a. Unless the pavement adjacent to the crosswalk is also deficient in rutting, rutting depth of the specialty surfacing pavement shall not exceed 0.25 ". Remedial work shall include the full depth removal of the specialty surfacing payment across the full width of the lane and crosswalk. b. Unless the pavement in the intersection is showing uniform raveling deficiencies, raveling, pot holes or delamination of the specialty surfacing pavement shall not exceed 0.25" in depth or more than 25 square inches in area. Remedial work shall include the patching of the specialty surfacing pavement in accordance with the manufacturer's instructions. SATransportation Development \PM \PA \LPA \Projects \Projects - Palm Beach \Delray_Beach \420412 -1 & 420412 - 2\CONTRACT\SUPPLEMENTAL AGREEMENT \Exhibit EF for pavement Maint written by Thue Lee.doex c. Unless pavement adjacent in the intersection is deficient in cracking criteria, cracking width of the specialty surfacing pavement shall not exceed 1/8" for more than 10' in any lane of the crosswalk. Remedial work shall include as a minimum, the full depth removal of the specialty surfacing pavement along the complete length of the crack(s) and for the width recommended by the manufacturer. 3. The results of all friction tests and condition surveys shall be sent to the FDOT District Four Operations Warranty Coordinator at the local FDOT District Four Operations Center located at Palm Beach Operations, 7900 Forest Hill Blvd., West Palm Beach, FL 33413 (561) 432 -4966, with a cover letter either certifying that the crosswalks comply with the above stated requirements; or what remedial action will be taken to restore the friction and /or integrity of the crosswalk area. 4. When remedial action is required in accordance with the above requirements, the local AGENCY at its own expense shall complete all necessary repairs within 90 days of the date the deficiency was identified. However, if the circumstance requires and depending on the surface conditions of the payment, this period of time may be reduced. 5. Should the local AGENCY fail to satisfactorily perform any required remedial work in accordance with this agreement, the DEPARTMENT reserves the right to replace the patterned textured pavement with conventional pavement and bill the local AGENCY for this cost. No more than two full specialty surfacing pavement depth repairs shall be made to an area without first resurfacing the pavement to its full depth. Table 1: Pavement Friction Number Conversions for Test Steeds Other Than 40 moh 30 mph Test Speed FN Results To Convert to 40 mph Results 50 mph Test Speed FN Results To Convert to 40 mph Results <29 Subtract 1 <26 Add 1 29 to 47 Subtract 2 26 to 42 Add 2 48 to 67 Subtract 3 43 to 60 Add 3 6. The DEPARTMENT and AGENCY hereby agree that the terms set forth in this Exhibit F shall be a continuing obligation of the AGENCY, survive the termination of this Local Agency Program Agreement and be enforceable by the DEPARTMENT. SATransportation Development \PM \PA \LPA \Projects \Projects - Palm Beach \Delray_Beach \420412 -1 & 420412 - 2\CONTRACT\SUPPLEMENTAL AGREEMENT \Exhibit EF for pavement Maint written by Thue Lee.doex STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION 525- 010 -30 FEDERAL -AID PROJECT FUNDING REQUEST CONSTRUCTION oaioo Page 1 DATE AGENCY City of Delray Beach FEDERAL -AID PROJECT NUMBER 4854 080 P FIN NUMBER 420412-1-58-01/420412-2-58-01 STATE JOB NUMBER TIP PAGE NUMBER PROJECT TITLE _ Milling & Resurfacing or reconstructing portions of US1 / SR -5 and Atlantic Ave PROJECT TERMINI FROM: South of Harborside Drive to Bond Wav and Southbound US -1 to Northbound US -1. WORK PHASE: ❑ PLANNING ❑ ENVIRONMENTAL ❑ DESIGN F x] CONSTRUCTION ❑ RIGHT OF WAY AWARD TYPE: F x] LOCAL ❑ LOCAL FORCES ENVIRONMENTAL DOCUMENT: Mark the type of environmental document prepared, indicate the approval date, and the most recent reevaluation date. EIS approved on: and reevaluated on: EA /FONSI approved on: and reevaluated on: Categorical Exclusion: Programmatic Categorical Exclusion determination on: 1/31/2012 Type I Categorical Exclusion determination on: Type II Categorical Exclusion determination on: Categorical Exclusion Reevaluation on: PHASE TOTAL ESTIMATED COST (nearest Dollar) LOCALAGENCY FUNDS (nearest Dollar) STATE FUNDING (nearest Dollar) FEDERALFUNDS (nearest Dollar) PERCENT FEDERAL FUNDS OBLIGATION DATE Month / Year PLANNING Roadway Width on Atlantic: 44 ft Number of Lanes: 2 DESCRIPTION OF PROPOSED WORK ❑ New Construction ❑ 3 -R ■ Enhancement [:]Congestion Mitigation Milling and resurfacing or reconstructing, landscaping, lighting, and minor drainage improvements. PD &E Roadway Width on US -1: 22ft Number of Lanes 4 (one -way pair) Bridge Numbers (s) on project: None Roadway Width on Atlantic: 44 ft DESIGN LOCAL AGENCY CONTACT PERSON TITLE: Randal L. Krejcarek, P.E. R/W MAILING ADDRESS: PHONE: 434 South Swinton Ave CON T. $8,123,444.00 $882,000.00 $5,051,604.00 $2,189,840.00 26.95% Delray Beach, FL TOTAL $8,123,444.00 $882,000.00 $5,051,604.00 $2,189,840.00 26.95% BY: DESCRIPTION OF EXISTING FACILITY (Existing Design and Present Condition) Roadway Width on US -1: 24ft Number of Lanes 4 (one -way pair) Bridge Number(s) on Project: None Roadway Width on Atlantic: 44 ft Number of Lanes: 2 DESCRIPTION OF PROPOSED WORK ❑ New Construction ❑ 3 -R ■ Enhancement [:]Congestion Mitigation Milling and resurfacing or reconstructing, landscaping, lighting, and minor drainage improvements. Roadway Width on US -1: 22ft Number of Lanes 4 (one -way pair) Bridge Numbers (s) on project: None Roadway Width on Atlantic: 44 ft Number of Lanes: 2 LOCAL AGENCY CONTACT PERSON TITLE: Randal L. Krejcarek, P.E. City Engineer MAILING ADDRESS: PHONE: 434 South Swinton Ave 561 - 243 -7322 AGENCY ZIP CODE: Delray Beach, FL 33444 LOCATION AND DESIGN APPROVAL: BY: Approving Authority TITLE: DATE: I. ■ ■ ■ ■ ■1■ . N■■ IIINIINI NIA ■ ■111 WIN ON ■Illlrlll�'�" ��� NINE ■1■ ■■■ „-REM I uu n 11= Nil; Us..!■ ill iii uu1111ruuurul' _■�'••• NI ll r� 111111 11111 ■ -- . +111 �- ■ t 5ss I= _ 171 •_ - -�-1= ZEN S s _ * ■111 "7 - -EE Los 's _ ,, r� ■!__I! r. J 11W — =■ulnr - ��_l.7 ll' u ��� ■ II■ _ 17 :■ , �� ■ ■N ■ ■L7 M E11'll_ _ ��- 11j�� � 111 ■ ■N ■1 ■udl- -_ X1.11■ _' �i- : ■11■ ■1 ■ ■ ■1 ��^ No I.. .. ' �� 1� ■ �_ .� .I-„ ■ ■111■ ■ 1111 Ell 1 61 Elm in n �■ . . —.. IH", . �Ir■ — _ _ 11111E _ 1�_ •N• i0 1wro 1■- - - �� r !111 u1 ■ r ~��; la ■ i u■ 1 ! SI '1=101 NT u_1 �=■■ ■ �_ :d! 1 =_i-= uu_u ■r __:_� ===� -1111 ■11: � _ __� _ === IIIIIIII�1 11111_ — 1i 11 == == -- N �_ _ ■ uuu Ir X111111 T 4 = := s lu III E' ; — - I INIIIIon _— �� ■ ■1111 I�I��I�11 —_ _ 1= �- . ■! IIP1uw uuuuu ulnuu 1111��■ =i NO 11 1N11N1 uuuuuuuuu nu■u u I 111u11u1u- i . = _ _ _ NNINE „ 1111■ 1 uluu u � Ilu�� ■ r:'li` — '11�V MEMORANDUM 'A z TO: Mayor and City Commissioners FROM: Rafael Ballestero, Deputy Director of Construction Victor Majtenyi, Interim Environmental Services Director THROUGH: Louie Chapman, Jr., City Manager DATE: May 22, 2013 SUBJECT: AGENDA ITEM 8.E. - REGULAR COMMISSION MEETING OF JUNE 4, 2013 AMENDMENT NO. 1 TO ALTERNATIVE WATER SUPPLY GRANT AGREEMENT/ SOUTH FLORIDA WATER MANAGEMENT DISTRICT ITEM BEFORE COMMISSION This item is before the Commission to approve Amendment No. 1 to the South Florida Water Management District ( SFWMD) Alternative Water Supply (AWS) Grant Agreement for the Area 12A- Phase 1 Reclaimed Water System Expansion, Project Number 11 -036. The amendment revises the Statement of Work, and Payment and Deliverable Schedule; the amount of funding remains the same. BACKGROUND Since 2004, the City has maintained an annual program for expansion of its reclaimed water transmission system for the purpose of providing an alternative irrigation source to City utility customers. Under the AWS Program, SFWMD has been able to provide supplemental funding for each of our expansion projects in previous years. On July 26, 2012, the City was notified by the District that their AWS program was accepting applications for projects proposed for construction in fiscal year 2013. At the time, the final design of the project was nearing completion. Through our consultant, we submitted an application to request funding assistance for the Area 12A -Phase 1 Reclaimed Water system expansion. Area 12A -Phase 1 encompasses the barrier island neighborhood from Atlantic Avenue south to Casuarina Road, from Gleason Street to AlA. At the SFWMD September 13, 2012 meeting, the District Board approved the City as a grant recipient, in the amount of $170,000.00, for the Area 12A project. On October 16, 2012, Commission approved the acceptance and execution of an AWS Grant in the amount of $170,000.00 for the Area 12A -Phase 1 Reclaimed Water Project. Amendment No. 1 to the SFWMD Grant Agreement amends the Statement of Work, and Payment and Deliverable Schedule of the contract, due to design changes, which occurred after the grant application was submitted. Specifically, Deliverable Task #9 - Directional Drilling of 10" HDPE DRl l Pipe was removed and this scope was added to the open cut method task. The funding remains the same, just redistributed among the tasks. As a result of this change, SFWMD requires an amendment to the grant agreement. RECOMMENDATION Staff recommends approval of Amendment No. 1 to the South Florida Water Management District (SFWMD) Alternative Water Supply (AWS) Grant Agreement for the Area 12A -Phase 1 Reclaimed Water System Expansion Project. G 3 SOUTH FLORIDA WATER MANAGEMENT DISTRICT AMENDMENT 4600002741 -A01 AMENDMENT NO. 01 TO AGREEMENT NO. 4600002741 BETWEEN THE SOUTH FLORIDA WATER MANAGEMENT DISTRICT AND CITY OF DELRAY BEACH This AMENDMENT NO. 01, is entered into on , to that AGREEMENT dated October 1, 2012, between "the Parties," the South Florida Water Management District (DISTRICT), and City of Delray Beach (CITY). WITNESSETH THAT: WHEREAS, the AGREEMENT may be amended with the prior written approval of the Parties; and WHEREAS, the Parties wish to amend the AGREEMENT in order to revise the Statement of Work, and revise the Payment and Deliverable Schedule of the AGREEMENT; NOW THEREFORE, the DISTRICT and the CITY, in consideration of the mutual benefits flowing from each to the other, do hereby agree as follows: 1. This AMENDMENT NO. 01 shall be effective upon the date of execution by the Parties. 2. This AMENDMENT NO. 01 shall be at no additional cost to the DISTRICT. 3. The Statement of Work, attached as Exhibit "A" to the AGREEMENT, is hereby deleted in its entirety and replaced by Exhibit "A -1 ", attached hereto and made a part of this AMENDMENT NO.01. 4. The Payment and Deliverable Schedule is also hereby revised in accordance with Exhibit "B -1 ", attached hereto and made a part of this AMENDMENT NO. 01. Page 1 of 2, Amendment No.01 to Agreement No. 4600002741 �QZ¢R MgN4Q P R O �q SOUTH / RIDA WATER MANAGEMENT Y 5. All other terms and conditions of the AGREEMENT remain unchanged. IN WITNESS WHEREOF, the Parties or their duty authorized representatives hereby execute this AMENDMENT NO. 01 on the date first written above. SFWMD PRQCUREI+ENT APPROVED BY: DATE:�t�� SOUTH FLORIDA WATER MANAGEMENT DISTRICT Dorothy A. Bradshaw, Procurement Bureau Chief CITY OF DELRAY BEACH : Title: Page 2 of 2, AmendmentNo.01 to Agreement No. 4600002741 EXHIBIT "A -1" STATEMENT OF WORK LEC -121 — Reclaimed Water System Area 12A Phase I City of Delray Beach A. INTRODUCTION /BACKGROUND The City of Delray Beach (City or Recipient) has established alternative water resource goals in conjunction with renewal of the City's Water Treatment Plant SFWMD Water Use Permit. Implementation of a reclaimed water system will reduce the demands on both the surficial aquifer and on the City's potable water system. The City's Reclaimed Water Master Plan completed in November 2003 identifies "Area 12A" as the sixth phase of the City's total reclaimed water system, which will provided up to 0.105 mgd of additional reclaimed water use for this phase. The City plans to implement other phases of the Master Plan on a continual basis over the next five years, and the total program will provide up to 5.712 mgd of reclaimed water available for the entire system. The Reclaimed Water Master Plan is consistent with the City's comprehensive plan, which specifically encourages more reuse of effluent from the wastewater treatment plant to reduce the demands on the potable water system B. OBJECTIVES The objective of the project is to implement the sixth phase of the reclaimed water system and to promote up to 0.105 mgd of additional reclaimed water use. C. SCOPE OF WORK This project consists of construction of reclaimed water transmission and distribution system consisting of approximately 3,000 linear feet of 10 -inch piping, 150 linear feet of 6 -inch piping, and 3,800 linear feet of 4 -inch piping and all associated valves, piping appurtenances, roadway repair and general conditions to serve the Area 12A, Phase I reclaimed water service areas. This project will tie into the 10 -inch piping at the intersection of Atlantic Avenue and Bronson Avenue. The 10 -inch trunk line will extend to the west on Atlantic Avenue to Gleason Street, then south on Gleason Street to Casuarina Road. A connection point will be provided for future phases. The nearby side streets will receive smaller reclaimed water distribution piping. These streets include; Salina Avenue, Bronson Avenue, Palm Avenue, Miramar Drive, Ingraham Avenue, Ocean Terrace, Nassau Street, and Bay Street. Page 1 of 3, Exhibit "A -1" to Agreement No. 4600002741 D. WORK BREAKDOWN STRUCTURE The work breakdown structure associated with this project is described below. Task 1: Recipient shall submit to the project manager an electronic submittal of final project bid amount and/or vendor estimates for tasks to be completed in FY13. Due Date: Upon Contract Execution Task 2: Exhibit "C" - Quarterly Status Report: Recipient shall submit to the project manager a status report summarizing progress made to date, issues of concern potentially affecting project performance, and any other information pertinent to the project. Due Date: December 31, 2012 Task 3: Exhibit "C" - Quarterly Status Report: Recipient shall submit to the project manager a status report summarizing progress made to date, issues of concern potentially affecting project performance, and any other information pertinent to the project. Due Date: March 31, 2013 Task 4. Exhibit "C" — Quarterly Status Report: Recipient shall submit to the project manager a status report summarizing progress made to date, issues of concern potentially affecting project performance, and any other information pertinent to the project. Due Date: June 30, 2013 Task 5: Recipient shall complete general conditions including site mobilization and demobilization and maintenance of traffic / Reimbursement Request Package. Due Date: Upon Task Completion Task 6: Recipient shall construct approximately 3,800 linear feet of 4 -inch and approximately 150 linear feet of 6 -inch PVC C900 reclaimed water main / Reimbursement Request Package. Due Date: Upon Task Completion Task 7: Recipient shall construct approximately 3,000 linear feet of 10 -inch PVC C900 reclaimed water main / Reimbursement Request Package. Due Date: Upon Task Completion Task 8: Recipient shall construct approximately 225 linear feet of 4 -inch HDPE DR11 Directional Drill / Reimbursement Request Package. Due Date: Upon Task Completion Task 9: Recipient shall install reclaimed water metered service connections / Reimbursement Request Package. Due Date: Upon Task Completion Task 10: Recipient shall install valves, fittings and all piping appurtenances and restoration (not including roadway surface) / Reimbursement Request Package. Due Date: Upon Task Completion Page 2 of 3, Exhibit "A -1" to Agreement No. 4600002741 Task 11: Recipient shall complete roadway surface restoration including crack sealing, rut filling, double course micro - surfacing, mill and resurface MOT roadway, adjust valve boxes, manhole tops, drainage inlets and pavement marking restoration / Reimbursement Request Package. Due Date: Upon Task Completion Task 12: Final Reimbursement Request and Project Summary Report(Exhibit "DU): Recipient shall submit to the project manager the final reimbursement request package and Project Summary Report (Exhibit "D "). Due Date: August 30, 2013 Page 3 of 3, Exhibit "A -1" to Agreement No. 4600002741 EXHIBIT "B -1" SUMMARY SCHEDULE OF TASKS AND DELIVERABLES LEC -121 — Reclaimed Water System Area 12A Phase I City of Delray Beach • The schedule set forth below is October 1, 2012 to September 30, 2013. • All deliverables submitted hereunder are subject to review and acceptance by the District Project Manager. Acceptability of all work will be based on the judgment of the District that the work is technically complete and accurate. • Payment shall be made following receipt and acceptance by the District of the Reimbursement Request Package(s) in accordance with the schedule set forth below. The Recipient shall submit a reimbursement request upon completion of each Task noted below. If applicable, the Recipient shall submit a final reimbursement request for payment and Exhibit "D" on or before August 30, 2013 for reimbursement. All reimbursement requests shall be accompanied by adequate documentation to demonstrate completion of each Task in accordance with Exhibit "A" the Statement of Work (SOW). • Reimbursement Request Packages shall include, but not be limited to, a copy of the Recipient's invoice, signed certification letter for partial payment that the Task(s) is (are) complete per the SOW or that the project is complete per the SOW, copies of vendor invoices, and any other documentation supporting payment. Reimbursement Request Packages shall adequately demonstrate completion of each Task in accordance with Exhibit "A" the SOW. • The District shall only be obligated to pay for documented actual FY2013 construction4 costs within the not -to- exceed amounts specified below. In the event actual construction costs by the Recipient are less than the not -to- exceed amount for a particular Task, the Recipient shall have the right to apply the unexpended balance toward another Task, unless the total current fiscal year construction cost has decreased. The Recipient shall provide prior written notice of its decision to exercise this right to the District Project Manager. If the Recipient does not exercise this right, the Recipient agrees to amend the contract to revise the approved funding consistent with the original percentage to the lower construction cost. In no event shall the District's total obligation exceed the amount specified below for the total Agreement; however, an actual construction cost less than the estimated construction cost may result in a reduced final payment. The Recipient is responsible for any additional funds either through local revenues, grants, other appropriations, and/or other funding sources. • Total payment by the District for all work completed herein shall not exceed the amount of $170,000.00. If the total consideration for this Agreement is subject to multi -year funding allocations, funding for each applicable fiscal year will be subject to Governing Board budgetary appropriation. In the event the District does not approve funding for any subsequent fiscal year, this Agreement shall terminate upon expenditure of the current funding, notwithstanding other provisions in this Agreement to the contrary. Page 1 of 3, Exhibit "B -1" to Agreement No. 4600002741 bask r J a >Iehverable(s), Tuv��ce�Datei Report Due Date Ta Exceed u Electronic submittal of final project bid Upon Contract 1 amount and/or vendor estimates for NIA N/A Execution tasks to be completed in FYI 2 Exhibit "C" — Quarterly Status Report' N/A December 31, 2012 N/A 3 Exhibit "C" Quarterly Status Report' N/A March 31, 2013 N/A 4 Exhibit "C" — Quarterly Status Report N/A June 30, 2013 N/A General Conditions including site 5 mobilization and demobilization and Upon Task N/A $9,100 maintenance of traffic / Reimbursement Completion Request Package Construct approximately 3,800 linear feet of 4 -inch and approximately 150 6 linear feet of 6 -inch PVC C900 Upon Task N/A $31,800 Completion reclaimed water main / Reimbursement Request Package Construct approximately 3,000 linear 7 feet of 10 -inch PVC C900 reclaimed Upon Task N/A $32900 water main / Reimbursement Request Completion ' Package Construct approximately 225 linear feet 8 of 4 -inch HDPE DR11 Directional Upon Task NIA $3,400 Drill / Reimbursement Request Completion Package Install reclaimed water metered service Upon Task 9 connections / Reimbursement Request N/A $14,300 Completion Package Install valves, fittings and all piping 10 appurtenances and restoration (not Upon Task N/A $18,700 including roadway surface) / Completion Reimbursement Request Package Roadway surface restoration including crack sealing, rut filling, double course micro - surfacing, mill and resurface Upon Task 11 FDOT roadway, adjust valve boxes, N/A $59,800 Completion manhole tops, drainage inlets and pavement marking restoration / Reimbursement Request Package Page 2 of 3, Exhibit `B -I" to Agreement No. 4600002741 1 If applicable, interim Reimbursement Request Packages shall be submitted upon completion of the task(s) noted above. Reimbursement Request Packages must be submitted on or before August 30, 2013 for reimbursement. 2 If construction bids and vendor estimates have not been completed upon execution of the Agreement, the Recipient shall submit this information as soon as it is available to the District Project Manager. 'Exhibit "C" Quarterly Status Reports are due within ten (10) business days of the due date. 4 Ineligible costs include, but not limited to, permits, as- builts, videos, early completion bonus, bonds and insurance, etc. Note: If the project includes well drilling and testing, deliverables must include copies of all hydrogeologic data collected in the course of drilling and testing, in the District specified format. An electronic copy of the District specified format is available via email. Contact the appropriate District Project Manager to request one. Page 3 of 3, Exhibit `B -1" to Agreement No. 4600002741 a) Final Reimbursement Request August 30, 2013 Package (if applicable) 12 NIA b) Project Summary Report (Exhibit "D ") August 30, 2013 Total District Funding $170,000 Current Fiscal Year Construction Cost $744,685 Total Project Construction Cost $15,161,345 1 If applicable, interim Reimbursement Request Packages shall be submitted upon completion of the task(s) noted above. Reimbursement Request Packages must be submitted on or before August 30, 2013 for reimbursement. 2 If construction bids and vendor estimates have not been completed upon execution of the Agreement, the Recipient shall submit this information as soon as it is available to the District Project Manager. 'Exhibit "C" Quarterly Status Reports are due within ten (10) business days of the due date. 4 Ineligible costs include, but not limited to, permits, as- builts, videos, early completion bonus, bonds and insurance, etc. Note: If the project includes well drilling and testing, deliverables must include copies of all hydrogeologic data collected in the course of drilling and testing, in the District specified format. An electronic copy of the District specified format is available via email. Contact the appropriate District Project Manager to request one. Page 3 of 3, Exhibit `B -1" to Agreement No. 4600002741 Exhibit "C -1" Alternative Water Supply Program Quarterly Status Report To comply with the AWS Status Report requirements specified in your contract, this form shall be completed and submitted via e-mail to your South Florida Water Management District project manager. Please attach backup documentation (e.g., pictures, drawings, etc.) that will provide an understanding of project construction to date. Status Report - Quarter ® 1 ❑ 2 ❑ 3 Date: Name of Person Completing Form Contract Number 4600002741 Proposal Number LEC -121 Entity Name: City of Delray Beach Project Title: Reclaimed Water System Area 12A Phase I 1. Provide a brief description of project status. 2. What is the overall status of your project (check one)? ❑ On Schedule ❑ Behind Schedule? Explain why. Do you expect the project to be completed on time? 3. Actual Project Construction Cost Information Page 1 of 3 , Exhibit "C -1" to Agreement No. 4600002741 Date Amount Bid Document Final Contract (with Vendor) Total Expended to Date Change order(s) Page 1 of 3 , Exhibit "C -1" to Agreement No. 4600002741 Exhibit "C -1" Alternative Water Supply Program Status Report 4. Construction Deliverables Status — provide the following information for each deliverable listed in Exhibit "B" of the contract: Task Is the Task Estimated Exhibit "B" Deliverables Complete? Finish Task Status and Comments No. y/N pate* Electronic submittal of final project bid Upon 1 amount and /or vendor estimates for contract tasks to be completed in FY13 execution 2 Exhibit "C" — Status Report 12/31/12 3 Exhibit "C" — Status Report 3/31/13 4 Exhibit "C" — Status Report 6/30/13 General Conditions including site 5 mobilization and demobilization and Upon Task maintenance of traffic Completion Construct approximately 3,800 linear feet of 4 -inch and approximately 150 linear Upon Task 6 feet of 6 -inch PVC C900 reclaimed water Completion main Construct approximately 3,000 linear feet 7 of 10 -inch PVC C900 reclaimed water Upon Task Completion main Construct approximately 225 linear feet Upon Task 8 of 4 -inch HDPE DR11 Directional Drill Completion install reclaimed water metered service Upon Task 9 connections Completion Install valves, fittings and all piping 10 appurtenances and restoration (not Upon Task including roadway surface) Completion Page 2 of 3, Exhibit "C -1" to Agreement No. 4600002741 Exhibit "C -1" Alternative Water Supply Program Status Report * Note that all tasks have to be completed and invoiced by August 30th Page 3 of 3, Exhibit "C -1" to Agreement No. 4600002741 Roadway surface restoration including crack sealing, rut filling, double course micro - surfacing, mill and resurface FDOT Upon Task 11 roadway, adjust valve boxes, manhole Completion tops, drainage inlets and pavement marking restoration / Reimbursement 12 Final Reimbursement Request Package & 8/30/13 Exhibit "D" Project Summary Report * Note that all tasks have to be completed and invoiced by August 30th Page 3 of 3, Exhibit "C -1" to Agreement No. 4600002741 3 r w Exhibit "D -1" FY2012 -2013 Alternative Water Supply Final Project Summary Report LEC -121 — Reclaimed Water System Area 12A Phase I Project Title 4600002741 / 9500005487 SFWMD Contract /Purchase Order Number Describe Project constructed: Type of Alternative Water Supply Reclaimed Entity Project Manager City of Delray Beach Entity Project Owner Quantity of Water Made Available [GD) Upon Completion of This Phase Proposed Actual 0.11 [a] 5.71 [a] Construction Duration Start I Finish Proposed (this FY} Actual {this FY) Construction Coat —This Phase $744,685.00 $ District funding this phase $170,000.00 $ Local funds $574,685.00 $ Other funding source From: 8 TOTAL $744,685.00 Attach map and photo(s) of project on CD, if available. The District will make funding payments only to reimburse for work completed between October 1, 2012 and August 30, 2013. To the best of my knowledge, the above information is correct. Chief Financial Officer Project Manager Page 1 of 1, Exhibit "D -1" to Agreement No. 4600002741 SOUTH FLORIDA WATER MANAGEMENT DISTRICT �- 2012 - 2013 ALTERNATIVE WATER SUPPLY :.. FUNDING PROGRAM p0a1'.D. won Recipient- City of Delray Beach _ . RE Recipient's Project Manager: Richard Hasko, P.E. Address: 434 South Swinton Avenue } Delray Beach, FL 33444 Telephone No: (561) 243 -7336 Fax No: (561) 243 -7060 Email: Hasko cnr,ci..dclrV- bcach.fl.gs SFWMD Project Manager: Stacey Adams Telephone No.: (561) 682 -2577 E -mail Address: sadams sfwmd. ov Fax No.: (561} 682 -5873 Contract Specialist: Sharman Rose Telephone No.: (561) 682 -2167 Fax No.: (561) 682 -5624 Address: 3301 Gun Club Road 'west Palm Beach, FL 33406 Insurance: Not Applicable Federal Employer Identification Number: 59- 6000308 Project Title: FY2013 AWS — LEC 121 Description: Reclaimed Water System Area 12A Phase I Agreement No. 4600002741, Page 1 of 12 This Agreement is entered into between "the Parties," the South Florida Water Management District, the "District ", and the undersigned party, hereinafter referred to as the "Recipient." The Recipient warrants and represents that it has no obligation or indebtedness that would impair its ability to fulfill the terms and conditions of this Agreement, and shall abide by all legal, financial and reporting requirements, such as matching funds and final reports for all funding received by the Recipient from the District. ARTICLE 1— PROJECT 1.1 The Recipient shall, to the satisfaction of the District, fully and timely construct and perform all work items described in the "Statement of Work," attached hereto as Exhibit "A", hereinafter referred to as the "Project ", and made a part of this Agreement. 1.2 As part :of the deliverables to be provided by the Recipient under this Agreement, the Recipient shall substantiate, in whatever form reasonably requested by the District, any supporting documentation utilized as a basis for payment by the District. This paragraph shall survive the expiration or termination of this Agreement. 1.3 Attached to this Agreement are the following exhibits which are incorporated herein: Exhibit A Statement of Work. Exhibit B Payment and Deliverable Schedule Exhibit C Status Report Exhibit D Final Project Summary Report ARTICLE 2 — TERM OF THE AGREEMENT 2.1 The period of performance of this Agreement shall be the dates noted on the first page of this Agreement. 2.2 The Parties agree that time is of the essence in the performance of each and every obligation under this Agreement. ARTICLE 3 — COMPENSATION / CONSIDERATION 3.1 As consideration for the Project required by this Agreement, the District skull pay the Recipient the funding amount as specified on page one of this Agreement. Such amount is not to exceed the specified amount and therefore, no additional consideration shall be authorized. The Recipient shall provide at least sixty percent (60 %) or more of the Project's construction cost, unless a different amount is authorized pursuant to s. 373.707(8)(e), Florida. Statutes. The Recipient acknowledges that the District may authorize an amount less than forty percent (40 %); and, if current fiscal year construction costs decrease the approved funding may be decreased. The approved funding is a Agreement trio. 4600002791, Page 2 of 12 percentage, up to forty percent (40 %) based on the estimated current fiscal year project construction cost. For FY13, payment will be made by the District for work authorized and completed between October 1, 2012 and August 30, 2013, The District will not reimburse the Recipient for FY13 work that commences prior to the start date of the Agreement or for work completed after August 30, 2013. 3.2 The Recipient assumes sole responsibility for all work which is performed pursuant to Exhibit "A ". By providing funding hereunder, the District does not make any warranty, guaranty or any representation whatsoever regarding any of the work performed hereunder, including but not limited to, the adequacy or sufficiency of all or any part of work described in Exhibit "A ". 3.3 The Recipient hereby agrees not to use District funding for any work associated with the research; design and permitting aspects of the Project. District farads shall only be used for the construction activities described in Exhibit "A ". 3.4 The Rccipient agrees to reimburse the District funds provided through this Agreement for facilities (i.e. test/production wells, etc.) that do not become an operational component of the overall alternative water supply facility within the timeframe established in the proposal. Notwithstanding anything in this Agreement to the contrary, this paragraph shall remain in full force and effect for twenty (20) years from the date of contract execution. ARTICLE 4 -- FUNDING PAYMENTS AND REPORTING 4.1 The District shall make payment to the Recipient upon completion and acceptance of the deliverable(s) as described in the "Summary Schedule of Tasks and Deliverables ", attached hereto as Exhibit `B ". The Recipient shall provide a completed Project Status Report attached hereto as Exhibit "C" within. ten (10) business days of the following due dates December 31, 2012, March 31, 2013; and .Tune 30, 2013. In addition, on or before August 305 201.3, the Recipient shall provide a completed Project Summary Final Report, attached hereto as Exhibit "D" and the Final Reimbursement Request Package. Concurrent with delivery of the final deliverable(s), the Recipient shall provide certification that all construction has been completed in accordance with Exhibit "A'' of this Agreement. 4.2 The Recipient's invoice(s) shall reference the District's Agreement Number and Purchase Order Number and shall be sent to the following address: South Florida Water Management District ATTN: Accounts Payable PO Box 24682 West Palm Beach, FL 33416 -4682 The Recipient shall not submit an invoice to any other address at the District. In order to expedite the invoice review and approval process, the Recipient shall also submit a copy of each reimbursement request package to the Project Manager, The Recipient's Agreement No. 4600002741, Page 3 of 12 reimbursement request package shall contain the backup documentation required (e.g., the request shall include but is not limited to a copy of Recipient's invoice (include the District's Agreement Number and Purchase Order number), signed certification letter on Recipient's letterhead (signed by an authorized representative of the Recipient), tasks completed per the Agreement (if all tasks finished, a statement indicating that the project is completed per the Agreement) and, vendor invoices /application for payment) for the Project Manager to ascertain that each deliverable in the invoice has been substantially complete. The Recipient shall submit the final reimbursement request and Exhibit "D" on or before August 15, 2012. Failure of the Recipient to follow the instructions set forth in the Agreement regarding a proper invoice and acceptable services andlor deliverables may result in an unavoidable delay in payment by the District. 4.3. Upon completion of the Project, any data that was generated during the performance of the Project shall be submitted to the District upon request. New Well Construction Projects; For projects involving construction of new wells, the Recipient shall: 1. Submit design of well construction and testing programs to the District for review and comment prior to implementation. The Recipient shall integrate the District's comments into the final testing plan where feasible. 2. Submit all pertinent well information collected during well construction and testing (i.e., depths, cuttings descriptions, geophysical logs, aquifer test data, etc.), as available. Submissions shall be provided electronically as specified by the District. 3. Zf the final location of the well(s) varies from the original location specified in the Consumptive Use or other permit or permit applications, the Recipient shall provide the Project Manager with written proof that the appropriate permitting agency contact is aware of and agrees with the changes. The data shall be archived in the District's permanent database and available to the public_ Please contact Emily Richardson (561) 682 -6824, Bmily.Rlchardson QsfWmd.gov, fox instructions on submitting data. 4.4 The Recipient shall provide to the District regular project status reports (Exhibit "C ") quarterly by December 31, 2012; March 31, 2013; and June 30, 2013. Reports shall provide detail on the progress of the Project; amounts expended to date per task and outline any potential issues affecting Project completion or overall schedule. Exhibit "C" shall be submitted to the District's Project Manager via email within ten (10) business days of the specified due date. In the event actual construction costs are less than the not -to- exceed amount for a particular task stated in Exhibit "S ", the Recipient will have the right to apply the unexpended balance toward another task, unless the total current fiscal year construction cost has decreased. The Recipient shall provide prior written notice of its decision to exercise this right. If the Recipient does not exercise this right, the Recipient agrees to amend the contract to revise the approved funding consistent with the original Agreement No. 4600402741, Page 4 of 12 percentage to the lower construction cost. In no event, shall the District's total obligation exceed the amount specified in Exhibit "B" for this Cooperative Agreement; however, an actual construction cost less than an estimated construction cost may result in a reduced final payment. The Recipient is responsible for any additional funds either through local revenues, grants, other appropriations, and/or other funding sources. ARTICLE 5 — CONTRACT MANAGEMENT 5.1 The Parties shall direct all matters arising in connection with the performance of this Agreement to the attention of the Project Manager for attempted resolution or action. The Project Manager shall be responsible for overall coordination and oversight relating to the performance of this Agreement. 5.2 All notices, demands or other communications regarding this Agreement, other than those set forth in paragraph 42 above, shall be in writing and forwarded to the attention of both the Project Manager and the Contract Specialist noted on the first page of this Agreement by certified mail, return receipt requested. 5.3 Should either Party change its address, written notice of such new address shall promptly be sent to the other Party. . 5.4 All correspondence to the District under this Agreement shall reference the District's Agreement Number and Purchase Order Number. ARTICLE 6 -- TERMINATION 1 REMEDIES 6.1 It is the policy of the District to encourage good business practices by requiring the Recipient to materially perform in accordance with the terms and conditions of the Agreement. In accordance with Chapter 40E -7, Part Il of the Florida Administrative Code, "Material Breach" is defined as any substantial, unexcused non - performance by failing to perform an act that is an important part of the transaction or performing an act inconsistent with the terms and conditions of the Agreement. If the Recipient materially fails to fulfill its obligations under this Agreement, the District will provide written notice of the deficiency by forwarding a Cure Notice citing the specific nature of the material breach. The Recipient shall have thirty (30) days to cure the breach. If the Recipient fails to cure the breach within the thirty (30) day period, the District shall issue a Termination for Default Notice. Once the District has notified the Recipient that it has materially breached its contract with the District, by sending a Termination for Default Notice, the District's Governing Board shall determine whether the Recipient should be suspended from doing future work with the District, and if so, for what period of time. The District's Governing Board will consider the factors detailed in Chapter 40E -7, Part II of the Florida Administrative Code in making a determination as to whether a Recipient should be suspended., and if so, for what period of time. Should the District terminate for Agreement No. 4600002741, Page 5 of 12 default in accordance with this provision, the District shall be entitled to recover procurement costs in addition to all other remedies under law and/or equity. 6,2 The District may terminate this Agreement at any time for convenience upon thirty (30) calendar days prior written notice to the Recipient, The performance of work under this Agreement may be terminated by the District in accordance with this clause in whole, or from time to time in part, whenever the District shall determine that such termination is in the best interest of the District. Any such termination shall be effected by delivery of a Notice of Termination to the Recipient, specifying the extent to which performance of work under the Agreement is terminated, and the date upon which such termination becomes effective. In the event of termination, the District shall compensate the Recipient for all authorized and accepted work performed through the termination date. The District shall be relieved of any and all future obligations hereunder, including but not limited to, lost profits and consequential damages under this Agreement. The District may withhold all payments to the Recipient for such work until such time as the District determines the exact amount due to the Recipient. 63 In the event a dispute arises, which the Project Managers' cannot resolve between themselves, the Parties shall have the option to submit to non- binding mediation. The mediator or mediators shall be impartial, shall be selected by the Parties, and the cost of the mediation shall be borne equally by the Parties. The mediation process shall be confidential to the extent permitted by law. 6.4 Notwithstanding anything in this Agreement to the contrary, the District reserves the right to terminate this Agreement immediately without notice in the event any of the representations contained in the Recipient's project proposal are found to be false or if the Recipient fails to complete the construction and performance of all work items described in Exhibit A, Statement of Work. ARTICLE 7 -- RECORDS RETENTION 7.1 The Recipient shall maintain records and the District shall have inspection and audit rights as follows: A. Maintenance of Records. The Recipient shall maintain all financial and non- financial records and reports directly or indirectly related to the negotiation or performance of this Agreement, including supporting documentation for any service rates, expenses, research or reports. Such records shall be maintained and made available for inspection for a period of five (5) years from completing performance and receiving final payment under this Agreement. B. Examination of Records. The District or designated agent shall have the right to examine in accordance with generally accepted governmental auditing standards all records directly or indirectly related to this Agreement. Such examination may be made only within five (5) years from the date of final payment under this Agreement and upon reasonable notice, time and place. Agreement No. 4600OC27/41, Page 6 of 12 C. Extended Availability of Records for Le al Disputes. In the event the District should become involved in a legal dispute with a third party arising from performance under this Agreement, the Recipient shall extend the period of maintenance for all records relating to this Agreement until the final disposition of the legal dispute. All such records shall be made readily available to the District. D. Periodic Audits. The District shall perform audits periodically to ensure funding objectives are being met. 7.2 Whenever the District's contribution includes state or federal appropriated funds, the Recipient shall, in addition to the inspection and audit rights set forth in Article 7.1 above, maintain records and similarly require each subcontractor to maintain and allow access to such records in compliance with the requirements of the Florida State Single Audit Act and the Federal Single Audit Act, as follows: A. The Recipient shall maintain all financial /non - financial records through: (1) Identification of the state or federal awarding agency, as applicable (2) Project identification information included in the Catalog of State Financial Assistance (CSFA) or the Catalog of Federal Financial Assistance (CFDA), as applicable (3) Audit and accountability requirements for state projects as stated in the Single Audit Act and applicable rules of the Executive Office of Governor, rules of the Chief Financial Officer and rules of the Auditor General and the State Projects Compliance Supplement (4) Audit/accountability requirements for federal projects as imposed by federal laws and regulations (5) Submission of the applicable single audit report to the District, as completed per fiscal year B. Examination of Records: The District or designated agent, the state awarding agency, the state's Chief Financial Officer and the state's Auditor General andlor federal awarding agency shall have the right to examine the Recipient's financial and non- financial records to the extent necessary to monitor the Recipient's use of state or federal financial assistance and to determine whether timely and appropriate corrective actions have been taken with respect to audit findings and recommendations which may include onsite visits and limited scope audits. ARTICLE 8 — STANDARDS OF CON PLIANCE 8.1 The Recipient, its employees, subcontractors or assigns, shall comply with all applicable federal, state and local laws and regulations relating to the performance of this Agreement. The District undertakes no duty to ensure such compliance, but will attempt to advise the Recipient, upon request, as to any such laws of which it has present knowledge. Agreement No. X4600002741, Page 7 of 12 8.2 The laws of the State of Florida shall govern all aspects of this Agreement. In the event it is necessary for either parry to initiate legal action regarding this Agreement, venue shall be in the Fifteenth Judicial Circuit for claims under state law and in the Southern District of Florida for any claims, which are justifiable in federal court. 83 The Recipient shall allow public access to all Project documents and materials in accordance with the provisions of Chapter 119 of the Florida Statutes. Should the Recipient assert any exemptions to the requirements of Chapter 119 and related Statutes, the burden of establishing such exemption, by way of injunctive or other relief as provided by law, shall be upon, the Recipient. 8.4 Pursuant to Section 216.347 of the Florida Statutes, the Recipient is prohibited from the expenditure of any funds under this Agreement to lobby the Legislature, the judicial branch or another state agency. 8.5. The Recipient has obtained, at its sole expense, all necessary licenses, authorizations and permits from the appropriate private party or federal, state, municipal or local agency, and other governmental approvals, prior to commencing performance of this Agreement. A delay in obtaining permits shall not give rise to a claim by the Recipient for additional compensation. if the Recipient is unable to obtain all necessary permits in a timely manner, either party may elect to terminate this Agreement, each party to bear its own costs, notwithstanding other provisions of this Agreement to the contrary. The Recipient agrees to comply with the terms and conditions of all permits. 8.6 The Recipient hereby assures that no person shall be excluded on the grounds of race, color, creed, national origin, handicap, age or sex, from participation in, denied the benefits of, or is otherwise subjected to discrimination in any activity under this Agreement. The Recipient shall take all measures necessary to effectuate these assurances. 8.7 Pursuant to Section 287.133 of the Florida Statutes, a person or affiliate who has been placed on the convicted vendor list may not submit a bid, proposal, or reply to a request to provide any goods or services related to the construction of the Project contemplated herein. Recipient also assures that it is not on the District's Suspension of Contractors List. Recipient agrees to include a provision to this effect in all requests for proposals and subcontracts related to construction of this Project. 8.8 A Recipient who operates a public water supply utility shall, by June 1, 2013 adopt a rate structure that will promote the conservation of water and promote the use of water from alternative water supplies and shall provide the District with a copy of such adopted rate structure on or before August 30, 2013. 8.9 Recipient of funds for a reuse project shall provide a status report by August 30, 2013 addressing the following issues: (1) accounting of reclaimed water usage and method used (meters, etc.); (2) all rates and charges for reclaimed water; (3) the status of implementing public education programs to inform the public about water issues, water conservation and Agreement No. 4600002741, Page 8 of 12 the importance and proper use of reclaimed water; and (4) providing the District with the location of each reuse facility owned by the Recipient. 8.10 This paragraph shall remain in full force axed effect for twenty (20) years from the date of contract execution. After construction is completed on the Project, the Recipient shall continuously operate the Project as described in the Project proposal and consistent with the application water use permit(s). In the event the Project is not operated or completed in accordance with these requirements, the Recipient, if requested by the District, agrees to reimburse the amount of funding the District provided to this project. This amount may be prorated based on the number of years the completed project is operated using an assumed project life of 20 years. furthermore, the District may cease funding for this Project and any future Projects proposed by the Recipient. All other provisions of this contract shall terminate on September 30, 2013. 8.11 Recipient shall implement a public education program to inform the public about the environmental and other public benefits of the Alternative Water. Supply project and shall provide the District with a copy of such public education program on or before August 15, 2012, ARTICLE 9 -- INDENLS I 'ICATION AND INSURANCE 9.1 For value received, which is hereby acknowledged, the Recipient shall, subject to the limits permitted in Florida Statute 768 28, defend, indemnify, save, and hold the District, its officers, directors, board members, agents, assigns, and employees harmless from liabilities, damages, losses, and costs, including but not limited to reasonable attorney's fees, to the extent caused by the negligence, recldessness or intentionally wrongful conduct of the Recipient and other persons employed or utilized by the Recipient in the performance of the Agreement. The District shall have the rigbt to approve counsel selected by the Recipient to defend the District in the event the District is named in any legal action, Pursuant to section 768,28, Florida Statues, nothing herein shall require the Recipient to be liable for intentional or reckless acts or for actions committed in bad faith or malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. However, nothing contained here shall constitute a waiver by the Recipient of its sovereign immunity or the provisions of F. S. 768.28. The Recipient further acknowledges that it is solely responsible for ensuring its compliance and the compliance of its subcontractors, suppliers, agents, assigns, invitees and employees with the terms of this Agreement. This paragraph shall survive the expiration or termination of this Agreement. ARTICLE 10 — RELATIONSHIP BETWEEN THE PARTIES 10.1 The Recipient shall be considered an independent contractor and neither party shall be considered an employee or agent of the other party. Nothing in this Agreement shall be interpreted to establish any relationship other than that of an independent contractor Agreement No. 4600002741, Page 9 of 12 between the parties and their respective employees, agents, subcontractors, or assigns during or after the performance of this Agreement. Both, parties are free to enter into contracts with other parties for similar services. 10,2 The Recipient shall not assign, delegate or otherwise transfer its rights and obligations as set forth in this Agreement without the prior written consent of the District. Any attempted assignment in violation of this provision shall be null and void. 10.3 It is the intent and understanding of the Parties that this Agreement is solely for the benefit of the Recipient and the District. No person or entity other than the Recipient or the District shall have any rights or privileges under this Agreement in any capacity whatsoever, either as third party beneficiary or otherwise_ ARTICLE 11— GENERAL PROVISIONS 11.1 Notwithstanding any provisions of this Agreement to the contrary, the Parties shall not be held liable for any failure or delay in the performance of this Agreement that arises from fires, floods, strikes, embargoes, acts of the public enemy, unusnally severe weather, outbreak of war, restraint of government, riots, civil commotion, force maj cure, act of God or for any other cause of the same character, which is unavoidable through the exercise of due care and beyond the control of the Parties. Failure to perform shall be excused during the continuance of such circumstances, but this Agreement shall otherwise remain in effect. This provision shall not apply if the Statement of Work, Exhibit "A'° of this Agreement specifies that performance by the Recipient is specifically required during the occurrence of any of the events herein mentioned. 112 Any inconsistency in this Agreement shall be resolved by giving precedence in the following order: (a) Terms and Conditions outlined in Articles 1 -11 (b) Exhibit "A" Statement of Work (c) Project Information Document (d) All other exhibits, attachments and documents specifically incorporated herein by reference 11.3 Failures or waivers to insist on strict performance of any covenant, condition, or provision of this Agreement by the Parties, their successors and assigns shall not be deemed a waiver of any of its rights or remedies, nor shall it relieve the other Party from performing any subsequent obligations strictly in accordance with the terms of this Agreement. No waiver shall be effective unless in writing and signed by the Party against whom enforcement is sought. Such waiver shall be limited to provisions of this Agreement specifically referred to therein and shall not be deemed a waiver of any other provision. No waiver shall constitute a continuing waiver unless the writing states otherwise. Agreement No. 460 ©002741, Page 10 of 12 11.4 Should any tern or provision of this Agreement be held, to any extent, invalid or unenforceable, as against any person, entity or circumstance during the term hereof, by force of any statute, law or ruling of any forum of competent jurisdiction, such invalidity shall not affect any other term or provision of this Agreement, to the extent the Agreement shall remain operable, enforceable and in full force and effect to the extent permitted by law. 11.5 This Agreement may be amended only with the written approval of the Parties. 11.6 This Agreement states that all publicity /outreach media will be jointly planned by the Recipient and the District and any and all materials, events, or endorsements arising out of this award will require prior District approval. 113 This Agreement states the entire understanding and Agreement between the Parties and supersedes any and all written or oral representations, statements, negotiations or Agreements previously existing between the Parties with respect to the subject matter of this Agreement. The Recipient recognizes that any representations, statements or negotiations made by District staff do not suffice to legally bind the District in a contractual relationship unless they have been reduced to writing and signed by an authorized District representative. This Agreement shall inure to the benefit of and shall be binding upon the parties, their respective assigns, and successors in interest. AgreexnentNo. 4600002741, Page 11 of 12 IN WrfNESS WHEREOF, the Parties or their duly authorized representatives hereby execute this Agreement on the date written below. SOUTH FLORIDA WATER MANAGEMENT DISTRICT, BY ITS GOVERNING BOARD MI Procurement Bureau Chief Date. SFWM) Procurement Approved: BY : -- --° °' Date: I D I'D 21 i Recipient's Legal Name: CITY OF DELRAY BEACH By Authorized Official: Printed Name: . Title: Date; Approved as t8 fam and 169ai suftici �y: GUY MOM" Agreement No. 4600002741, Page 12 of 12 EXHIBIT "A" STATEMENT OF WORK LEC -121 — Reclaimed Water System Area 12A Phase I City of Delray Beach A. INTRODUCTION/BACKGROUND The City of Delray Beach (City or Recipient) has established alternative water resource goals in conjunction with renewal of the City's Water Treatment Plant SPWMD water Use Permit. Implementation of a reclaimed water system will reduce the demands on both the surficial aquifer and on the City's potable water system. The City's Reclaimed Water Master Plan completed in November 2003 identifies "Area 12A" as the sixth phase of the City's total reclaimed water system, which will provided up to 0.105 mgd of additional reclaimed water use for this phase. The City .plans to implement other phases of the Master Plan on a continual basis over the next five years, and the total program will provide up to 5.712 mgd of reclaimed water available for the entire system. The Reclaimed Water Master Plan is consistent with the City's comprehensive plan, which specifically encourages more reuse of effluent from the wastewater treatment plant to reduce the demands on the potable water system B. OBJECTIVES The objective of the project is to implement the sixth phase of the reclaimed water system and to promote up to 0.105 mgd of additional reclaimed water use. C. SCOPE OF WORK This project consists of construction of reclaimed water transmission and distribution system consisting of approximately 2,970 linear feet of 10 -inch piping, 120 linear feet of 6 -inch piping, and 4,000 linear feet of 4 -inch piping and all associated valves, piping appurtenances, roadway repair and general conditions to serve the Area 12A, Phase I reclaimed water service areas. This project will tie into the 10 -inch piping at the intersection of Atlantic Avenue and Bronson Avenue. The 10 -inch trunk line will extend to the west on Atlantic Avenue to Gleason Street, then south on Gleason Street to Casuarina Road.. A connection point will be provided for future phases. The nearby side streets will receive smaller reclaimed water distribution piping. These streets include; Salina Avenue, Bronson Avenue, Palm Avenue, Miramar Drive, Ingraham Avenue, Ocean Terrace, Nassau Street, and Bay Street. Page i of 3, Exhibit 'W to Agreement No. 4600002741 D. WORTS BREAKDOWN STRUCTURE The work breakdown structure associated with this project is described below. Task 1: Recipient shall submit to the project manager an electronic submittal of final project bid amount and/or vendor estimates for tasks to be completed in FYI . Due Date: Upon Contract Execution Task 2: Exhibit "C" — uarterl Status Report- Recipient shall submit to the project manager a status report summarizing progress made to date, issues of concern potentially affecting project performance, and any other information pertinent to the project. Due Date: December 31, 2012 Task 3: Exhibit "C" — Quqjjerl, Status Re ort: Recipient shall submit to the project manager a status report summarizing progress made to date, issues of concern potentially affecting project performance, and any other information pertinent to the project. Due Date: March 31, 2013 Task 4: Exhibit "C" — Quarterly Status Report: Recipient shall submit to the project manager a status report summarizing progress made to date, issues of concern potentially affecting project performance, and any other information pertinent to the project. Due Date: June 30, 2013 Task 5: Recipient shall complete general conditions including site mobilization and demobilization and maintenance of traffic / Reimbursement Request Package. Due Date: Upon Task Completion Task 6: Recipient shall construct approximately 3,090 linear feet of 4 -.inch and approximately 120 linear feet of 6-inch PVC C900 reclaimed water main / Reimbursement Request Package. Due Date: Upon Task Completion Task 7: Recipient shall construct approximately 2,765 linear feet of 10 -inch PVC C900 reclaimed water main l Reimbursement Request Package. Due Date: Upon Task Completion Task 8: Recipient shall construct approximately 910 linear feet of 4 -inch HDPE DR11 Directional Drill / Reimbursement Request Package. Due Date: Upon Task Completion Task 9: Recipient shall construct approximately 205 linear feet of 10 -inch HDPE DR11 Directional Drill / Reimbursement Request Package. Due Date: Upon Task Completion Task 10: Recipient shall install reclaimed water metered service connections / Reimbursement Request Package. Due Date: Upon Task Completion Page 2 of 3, Exhibit "A" to Agreement No. 4600002741 Task 11: Recipient shall install valves, fittings and all piping appurtenances and restoration (not including roadway surface) / Reimbursement Request Package. Due Date: Upon Task Completion Task 12: Recipient shall complete roadway surface restoration including crack sealing, rut filling, double course .micro- surfacing, mill and resurface MOT roadway, adjust valve boxes, manhole tops, drainage inlets and pavement marking restoration / Reimbursement Request Package. Due Date: Upon Task Completion Task 13: Final Reimbursement Request and Project Summgy Report xhibit "D" : Recipient shall submit to the project manager the final reimbursement request package and Project Summary Report (Exhibit "D ") Due Date: August 30; 201' 3 of 3, Exhibit "A" to Agreement No. 4640002741 EXHIBIT 44B" SUNMARY SCHEDULE OF TASKS AND DEL£VERABLES LEC -1.21 — Reclaimed Water System Area 12A Phase I City of Delray Beach r The schedule set forth below is October 15 2012 to September 30, 2013. a All deliverables submitted hereunder are subject to review and acceptance by the District Project Manager. Acceptability of all work will be based on the judgment of the District that the work is technically complete and accurate. Payment shall be made following receipt and acceptance by the District of the Reimbursement - Request Package(s) in accordance with the schedule set forth below. The Recipient shall submit a reimbursement request upon completion of each Task noted below, If applicable, the Recipient shall submit a final reimbursement request for payment and Exhibit "D" on or before August 30, 2013 for reimbursement. All reimbursement requests shall be accompanied by adequate documentation to demonstrate completion of each Task in accordance with Exhibit "A" the Statement of Work (SOW). Reimbursement Request Packages shall include, but not be limited to, a copy of the Recipient's invoice, signed certification letter for partial payment that the Task(s) is (are) complete per the SOW or that the project is complete per the SOW, copies of vendor invoices, and any other documentation supporting payment. Reimbursement Request Packages shall adequately demonstrate completion of each Task in accordance with Exhibit "A" the SOW. The District shall only be obligated to pay for documented actual FY2013 construction`s costs within the not -to- exceed amounts specified below. In the event actual construction costs by the Recipient are less than, the not -to- exceed amount for a particular Task, the Recipient shall have the right to apply the unexpended balance toward another Task, uirless the total current fiscal year construction cost has decreased. The Recipient shall provide prior written notice of its decision to exercise this right to the District Project Manager. If the Recipient does not exercise this right, the Recipient agrees to amend the contract to revise the approved funding consistent with the original percentage to the lower construction cost. In no event shall the District's total obligation exceed the amount specified below for the total Agreement; however, an actual construction cost less than the estimated construction cost may result in a reduced final payment. The Recipient is responsible for any additional funds either through local revenues, grants, other appropriations, and/or other funding sources. Total payment by the District for all work completed herein shall not exceed the amount of $170,000.00. If the total consideration for this Agreement is subject to multi -year funding allocations, funding for each applicable fiscal year will be subject to Governing Board budgetary appropriation. In the event the District does not approve funding for any subsequent fiscal year, this Agreement shall terminate upon expenditure of the current funding, notwithstanding other provisions in this Agreement to the contrary. Pale 1 of 3, Exhibit "B" to Agreement No. 4600002741 Page 2 of 3, Exhibit "B" to Agreement No. 4600002741 ��- W Electronic submittal of final project bid Upon Contract 1 amount and/or vendor estimates for N/A 2 Execution N/A tasks to be completed in FY13 2 Exhibit "C" — Quarterly Status Report3 N/A December 31, 2012 N/A 3 Exhibit "C" — Quarterly Status Report3 N/A March 31, 2013 NIA 4 Exhibit "C" — Quarterly Status ReporO N/A June 30, 2013 NIA General Conditions including site 5 mobilization and demobilization and Upon Task N/A $17,100 maintenance of traffic / Reimbursement Completion Request Package Construct approximately 3,090 linear feet of 4 -inch and approximately 120 Upon Task 6 linear feet of 6 -inch PVC C900 Completion N/A $20,100 reclaimed water main / Reimbursement Request Package Construct approximately 2,765 linear 7 feet of 10 -inch PVC C900 reclaimed Upon Task N/A $23,400 water main / Reimbursement Request Completion Package Construct approximately 910 linear feet 8 of 4 -inch HDPE DR11 Directional Upon Task N/A $10400 Drill / Reimbursement Request Completion ' ' Package Construct approximately 205 lineaz feet of 10 -inch HDPE DRl 1 Directional Upon Task N, 55,800 Drill / Reimbursement Request Completion Package Install reclaimed water metered service Upon Task 10 connections / Reimbursement Request Completion N/A $14,300 Package Install valves, fittings and all piping 11 appurtenances and restoration (not Upon Task N/A $56,600 including roadway surface) / Completion Reimbursement Request Packaage Page 2 of 3, Exhibit "B" to Agreement No. 4600002741 1 If applicable, interim Reimbursement Request Packages shall be submitted upon completion of the task(s) noted above. Reimbursement Request Packages must be submitted on or before August 30, 2013 for reimbursement, Z If construction bids and vendor estimates have not been completed upon execution of the Agreement, the Recipient shall submit this information as soon as it is available to the District Project Manager. 'Exhibit "C" Quarterly Status Reports are due within ten (10) business days of the clue date. 4Ineligible costs include, but not limited to, permits, as- builts, videos, early completion bonus, bonds and insurance, etc. Note. If the project includes well drilling and testing, deliverables must include copies of all hydrogeologic data collected in the course of drilling and testing, in the District specified format. An electronic copy of the District specified format is available via email. Contact the appropriate District Project Manager to request one. Page 3 of 3, Exhibit "S" to Agreement No. 4604002741 Roadway surface restoration including crack sealing, rut filling, double course micro - surfacing, mill and resurface Upon Task 12 FDOT roadway, adjust valve boxes, Completion N/A $22,300 manhole tops, drainage inlets and pavement marking restoration / Reimbursement Request Package a) Final Reimbursement Request August 30, 2013 Package (if applicable) 13 N/A b) Project Summary Report (Exhibit 1 August 30, 2013 Total District Funding $170,000 Current Fiscal Year Construction Cost $894,830 Total Project Construction Cost $15,161,345 1 If applicable, interim Reimbursement Request Packages shall be submitted upon completion of the task(s) noted above. Reimbursement Request Packages must be submitted on or before August 30, 2013 for reimbursement, Z If construction bids and vendor estimates have not been completed upon execution of the Agreement, the Recipient shall submit this information as soon as it is available to the District Project Manager. 'Exhibit "C" Quarterly Status Reports are due within ten (10) business days of the clue date. 4Ineligible costs include, but not limited to, permits, as- builts, videos, early completion bonus, bonds and insurance, etc. Note. If the project includes well drilling and testing, deliverables must include copies of all hydrogeologic data collected in the course of drilling and testing, in the District specified format. An electronic copy of the District specified format is available via email. Contact the appropriate District Project Manager to request one. Page 3 of 3, Exhibit "S" to Agreement No. 4604002741 Exhibit "C" Alternative Water Supply Program Quarterly Status Report To comply with the AWS Status Report requirements specified in your contract, this form shall be completed and submitted via e-mail to your South Florida Water Management District project manager. Please attach backup documentation (e.g., pictures, drawings, etc.) that will provide an understanding of project construction to date. Status Report - Quarter ❑ 1 ❑ 2 ❑ 3 Date: Name of Person Completing Form Contract Number Entity Name: City of Delray Beach Project Tit le: Reclaimed Water 1. Provide a brief description of project status. Proposal Number LEC -123 Area 12A Phase I 2. What is the overall status of your project (check one)? ❑ On Schedule ❑ Behind Schedule? Explain why. Do you expect the project to be completed on time? 3. Actual Project Construction Cost Information Page 1 of 3 , EAilbit "C" to Agreement No. 4500002741 Date Amount Bid Document Final Contract (with Vendor) i Total Expended to Date Change Order(s) Page 1 of 3 , EAilbit "C" to Agreement No. 4500002741 Exhibit "C" Alternative Water Supply Program Status Report 4. Construction Deliverables Status —provide the following information for each deliverable listed in Exhibit "B" of the Contract: Page 2 of 3, Exhibit "C" to Agreement No. 4600002741 Is the Task Estimated Task Exhibit "B" Deliverables Complete? Finish Task Status and Comments Nn. Y/N Date* Electronic submittal of final project bid Upon 1 amount and /or vendor estimates for contract tasks to be completed in FY13 execution 2 Exhibit "C — Status Report 12/31/12 3 Exhibit "C" — Status Report 3/31/13 4 Exhibit "C" — Status Report 6/30/13 General Conditions including site Upon Task 5 mobilization and demobilization and Completion maintenance of traffic Construct approximately 3,050 linear feet of 4 -inch and approximately 120 linear Upon Task 6 feet of 6 -inch PVC 0900 reclaimed water Completion main Construct approximately 2,765 linear feet Task i of 10 -inch PVC 0900 reclaimed water Comp Completion main Construct approximately 910 linear feet Upon Task 8 of 4 -inch HDPE DR11 Directional Drill Completion Construct approximately 205 linear feet Upon Task of 10 -inch HOPE DR11 Directional Drill Completion Install reclaimed water metered service Upon Task 10 connections Completion Install valves, fittings and all piping Upon Task 11 appurtenances and restoration (not Completion including roadway surface) Page 2 of 3, Exhibit "C" to Agreement No. 4600002741 Exhibit "C" Alternative Water Supply Program Status Report * Note that all tasks have to be completed and invoiced by August 30 "' Page 3 of 3, Exhibit "C" to Agreement No. 4600002741 Roadway surface restoration including _ crack sealing, rut filling, double course micro - surfacing, mill and resurface FD07 Upon Task 12 roadway, adjust valve boxes, manhole Completion tops, drainage inlets and pavement marking restoration / Reimbursement 13 Final Reimbursement Request Package & 8/30/13 Exhibit "D" Project Summary Report * Note that all tasks have to be completed and invoiced by August 30 "' Page 3 of 3, Exhibit "C" to Agreement No. 4600002741 Exhibit "D" • FY2012-2013 Alternative Water Supply Final Project Summary Report LEG 121- Reclaimed Water System Area IZA Phase I Project Title Entity Project Manager 9ty of Delray Beach SFWMD Contract /Purchase Order Number Entity Project Owner Describe Project constructed: - g _2 001- A -'f gr, -10 ,b -ff g 11&200-, -H N M11Y TM R�. m Quantity of Water Made Available Type of Alternative Water (MG D_JKpon Completion of This Phase P Construction Duration $ supply Proposed- Actual Start Finish Eneclaimed OJI - a] 5.71 [a] TOTAL Attach map and photo(s) of project on CD, if available. The District will make funding payments only to reimburse for work completed between October 1, 2012 and August 30, 2013. To the best of my knowledge, the above information is correct. Chief Financial Officer Project Manager Page 1 of 1, Exhibit I'D" to Agreement No. 4600002741 Proposed (this FY) Actual (this Total Construction Cost - 'Phis Phase $894,830 $ District funding this phase $170,000 $ Local funds $724,830 $ Other funding source From: $ TOTAL $894,830 Attach map and photo(s) of project on CD, if available. The District will make funding payments only to reimburse for work completed between October 1, 2012 and August 30, 2013. To the best of my knowledge, the above information is correct. Chief Financial Officer Project Manager Page 1 of 1, Exhibit I'D" to Agreement No. 4600002741 MEMORANDUM TO: Mayor and City Commissioners FROM: Timothy Tack, Project Manager ESD /CRA Randal, Krejcarek, City Engineer Victor Majtenyi, Interim Director of Environmental Services THROUGH: Louie Chapman, Jr., City Manager DATE: April 26, 2013 SUBJECT: AGENDA ITEM 8.F. - REGULAR COMMISSION MEETING OF JUNE 4, 2013 CONTRACT ADDITION (CHANGE ORDER NO. 1) / SEALAND CONTRACTORS CORP. ITEM BEFORE COMMISSION Request for Commission approval /authorization for the Mayor to execute Change Order #1 with Sealand Contractors Corp. for the Federal Highway Beautification Project in the amount of $96,816.50, P/N 2009 -009. BACKGROUND On December 11, 2012, City Commission awarded the Federal Highway Beautification Project to Sealand Contractors Corp. Per the construction contract, testing of materials and products will be performed by an independent testing laboratory appointed and paid for by the City. Testing shall be coordinated by the contractor. The City will pay for all passing tests. The contractor will be responsible for payment of failing tests. The funding for this service had been anticipated and budgeted as part of the overall project cost (budgeted at $150,000). However, to meet the testing requirements set forth by FDOT specifications, the testing is to be provided by the contractor, thus a change order is required for the contractor to hire an independent testing laboratory. The Contractor is required to certify that all work on the project, including Quality Control sampling and testing, is completed in substantial compliance with specifications and in accordance to an FDOT approved Quality Control Plan. The cost of this testing service is reflected in Change Order #1 in the amount of $96,816.50; their pricing commensurate with industry standards. FDOT also requires that the City hire an independent testing laboratory to perform verification testing on the Contractor's Quality Control sampling and testing. Therefore, this firm will confirm the results of the Contractor's material tests. The verification testing will be a separate agreement between the City and Construction Engineering and Inspection firm (R.J. Behar and Company, Inc.) that was hired to act on the City's behalf during construction. The approval for this agreement will be under a separate agenda item. Additionally, the Federal Highway Administration (FHWA) document 1273, which is required for Federally Funded Projects, was updated during the advertisement period for this project. The change order includes the Revised Federal Highway Administration Document 1273 to be included in the construction contract. FUNDING SOURCE Funding for this change order is available from #334 - 3162 - 541.68 -52 under the Contracts Undefined General Allowance, therefore this Change Order will not increase the current contract amount of $12,486,967.77. RECOMMENDATION Staff Recommends Approval CITY OF DELRAY BEACH CHANGE ORDER TO ORIGINAL CONTRACT CHANGE NO. 1 PROJECT TITLE: Federal Highway Beautification Project TO CONTRACTOR: Sealand Contractors Corp. PROJECT NO. 2009 -009 DATE: YOU ARE HEREBY REQUESTED TO MAKE THE FOLLOWING CHANGES IN THE PLANS AND SPECIFICATIONS FOR THIS PROJECT AND TO PERFORM THE WORK ACCORDINGLY, SUBJECT TO ALL CONTRACT STIPULATIONS AND COVENANTS. JUSTIFICATION: The City must issue a change order in the amount of $96,816.50, to be paid out of the contract's Undefined General Allowance to the contractor for Quality Control (QC) testing services. In accordance with the Construction Contract, this change order includes the QC testing services that the City is obligated to pay in order to meet Florida Department of Transportation and Federal Highway Administration guidelines for quality construction. Costs are detailed in Exhibit A. Due to the extended timeframe required for State Approval of the project, documentation required for federally funded projects must be updated in the contract. The change order must contain the following documents: o FHWA 1273 (Exhibit B) SUMMARY OF CONTRACT AMOUNT /CHANGES ORIGINAL CONTRACT AMOUNT $ 12,486,967.77 COST OF CONSTRUCTION CHANGES PREVIOUSLY ORDERED $ 0.00 ADJUSTED CONTRACT AMOUNT PRIOR TO THIS CHANGE ORDER $ 12,486,967.77 COST OF CONSTRUCTION CHANGES THIS ORDER $ 0.00 ADJUSTED CONTRACT AMOUNT INCLUDING THIS CHANGE ORDER $ 12,486,967.77 TOTAL CONTRACT TIME WILL BE INCREASED BY 0 DAYS CERTIFIED STATEMENT: I hereby certify that the supporting cost data included is, in my considered opinion, accurate and that the prices quoted are fair and reasonable. Sealand Contractors Corp. (Contractor to sign & seal) TO BE FILLED OUT BY DEPARTMENT INITIATING CHANGE ORDER Funding is available from account: $96,816.50 — Contracts Undefined General Allowance DEPARTMENT RECOMMEND: APPROVED: FUNDING CERTIFIED BY DELRAY BEACH, FLORIDA by its City Con-unission Environmental Services City Attorney 1171 Mayor ATTEST: By: City Clerk � 4- I I+ Friday, May 10, 2013 Mr. Rafael C. Ballestero Deputy Director of Construction City of Delray Beach. 434 S. Swinton Ave Delray Beach, FL 33444 Federal Highway Beautification FM# 420412- 1 -58 -01 & 420412- 2 -58 -01 Project Number 2009 -009 Dear Mr. Ballestero, Attached you will find a proposal in the amount of $96,816.50 with appropriate back -up for QC testing services for the Federal Highway Beautification Project. In accordance with addendum 2 and previous discussions we have included the testing portion of this work for change order. This work is required by FDOT and is also described in the contract proposal and will ensure the quality of the project meets with FDOT and FHWA guidelines for quality construction. If there are any questions please call me at 561.997.6715 Sincerely, SEALAND CONTRACTORS CORP. Theodore J Dietz Project Manager cc: Vincent J. DiProspero Jr. File ITEM ! DESCRIPTION BID CITY LIN UNIT BID AMOUNT 001 210.000 EA 16.50 $3,465.00 Compressive Strength Cylinders 002 16.000 EA 82.50 $1,320.00 Standard Proctor 003 6.000 EA 93.50 $561.00 Modified Proctor 004 11.000 EA 242.00 $2,662.00 Limerock Bearing Ratio 005 6.000 EA 22.00 $132.00 pH Content 006 21.000 EA 60.50 $1,270.50 Organic Content 007 21.000 EA 60.50 $1,270.50 Sieve Analysis 008 21.000 EA 77.00 $1,617.00 Plastic & Liquid Limit 010 3.000 EA 2,750.00 $8,250.00 CSL Testing 011 158.000 EA 55.00 $8,690.00 HMA Cores 012 53.000 EA 11.00 $583.00 Air Content 013 53.000 EA 11.00 $58100 Acceptance Slump Test 014 2,625.000 EA 530 $14,437.50 Moisture Content (Speedy Moisture) __ - -- TOTAL BID. .:.M..,., $96,816.50 Signature: Theodore J Dietz Project Manager V r:`1r�d'_Annive�r�: ON�ft� Florida's Leading Engineering Source Environmental • 6eotechnlcal a Construction Materials Testing • Threshold and Special Inspections • Plan Review & Code Compliance Mr. Vincent DiProspero Jr. Sealand Contractors Corp. Post Office Box 350 Rush, NY 14543 Phone: (585) 359 -9242 Fax: (585) 359 -4808 RE: Proposal for Professional Consulting Services Federal Highway Beautification Delray Beach Delray Beach, FL Proposal No. 12- 1242.02 REV 04123/13 Dear Mr. DiProspero: April 23, 2013 GFA International, Inc. (GFA) appreciates the opportunity to become a part of your project team. Our professional engineers, geologists, and operations staff are dedicated to making this project a success, both on schedule and within budget. We are proud of our commitment to maintaining the highest levels of customer service and client satisfaction, and respectfully submit the following for your consideration. PROJECT DESCRIPTION GFA understands that this is a Federal Highway Beautification project ranging from South of loth Street to North of George Bush Boulevard in Delray Beach. Documents provided to GFA were plans by Kirnley Horn & Associates, Inc. The Geotechnicai Report was provided by Tierra dated 07120190. GFA acknowledges receipt of Addenda #1, #2 and #3. SCOPE OF SERVICES GFA anticipates that the following services will be required for this project: 1. QC Inspection Support Services 1215 Wallace Drive • Delray Beach, Florida 33444 . (561) 347 -0070 - (561) 395 -5805 (fax) 0 www.teamgfa.com OFFICEs THROUGHDUT FLORIDA Federal Highway Beautification Delray Beach 0412312013 Proposal No. 12- 1242.02 Page 2 of 5 1. QC INSPECTION_ SUPPORT SERVICES GFA proposes providing QC Inspection Support Services including performing the construction materials testing in general accordance with the project specifications and the permitted documents. In general, GFA anticipates the following will be required: Provide compaction tests as required Provide concrete tests as required 0� Federal Highway Beautification Delray Beach 0412312013 Proposal No. 12-1242.02 Page 4 of 5 These services include an engineering technician or inspector, field sampling, travel, test equipment and a typed report signed and sealed by a State of Florida Registered Professional Engineer. The rates for professional engineering services apply to report review, site visits and meetings, consultations, engineering letters, and letters of intent and certification. The overall cost of construction quality control programs is dependent upon the contractor's scheduling, weather and other factors beyond our control. However, you will only be invoiced for services rendered. Hourly rates will be charged in whole hour increments with fractions of an hour rounded up to the next full hour. All hourly labor rates are portal to portal. GFA will provide detailed invoices on a bi- weekly basis for services rendered. Our terms are C.O.D. (credit cards are accepted) unless a credit application has been approved or credit has been previously established. If credit is established, our terms will be net -30 days. All GFA services must be paid in full, including final letter, prior to delivery of any Final Letters of Compliance. The pricing contained herein is subject to change if this proposal is not authorized within 90 days from the date of this proposal. If more than 90 days have passed since the date of this proposal, please contact us for an updated proposal. Additional items not listed in this proposal will be quoted upon request. Reports will be distributed promptly to a maximum of three (3) interested parties without charge (Ex: Building Department, Owner, and Contractor). Additional reports will be billed at 1% of the monthly invoice for each additional party. All GFA services must be paid in full, including final letter, prior to delivery of any Final Letters of Compliance. AUTHORIZATION All services will be conducted in accordance with this proposal and attached Terms and Conditions. To initiate services, please complete and return the included Proposal Acceptance Agreement form. The Terms and Conditions are part of this agreement. The signed proposal acceptance agreement form must be received by GFA via fax or email prior to any work being performed, and an original copy must be received before completed reports can be distributed. CLOSING GFA appreciates the opportunity to submit this proposal, and looks forward to working with you as a member of the project team. Please contact the undersigned at 561.347.0070 if you have any questions or comments. From our team to yours, GFA International, Inc. CA#4930 Trey Wilson Business Development Thomas Ortner Vice President — Branch Manager nth Atuetvea��,. Il r . � kh Florida's Leading Engineering Source Environmental - Geoteahnical a Construction Materials Testing - Threshold and special Inspections - plan Review & Coda Compllance r *v lt> PROPOSAL ACCEPTANCE AGREEMENT GFA International, Inc. Description of Services: Professional Consulting Services Project Name: Federal Highway Beautification Delray Beach Project Locations: Delray Beach, FL GFA Proposal No.: 12- 1242.02 Proposal Date: April 23, 2013 REV 04/23/13 APPROVAL & PAYMENT OF CHARGES Invoices will be charged and mailed to the account of: Firm: Seakcw&A- C�n�r at5 CQcP _ FED ID #: 16- 10$95-a! Attention: Ted e�t Address: S-70 [ V1 o. r Telephone: Sly 1 • %97. 67/5 Fax: SU. 997 & 7/ 7 Email: 'l�i•� 6a s���o►�frp- C.-%o�s.G�rv► AUTHORIZED SIGNATU PRINTED NAME & TITLE DATE ACCEPTED: J1 2o / (See below for service line acceptance) SERVICES ACCEPTED: QC Inspectio (initial accepted service line(s)) PROPERTY OWNER IDENTIFICATION: (If other than above) Name: C AU -?k DeA n t j fc�:G� Address: Telephone: Fax: GFA International (GFA) reserves the right to withhold all reports until such time as we receive a signed Proposal Acceptance Agreement or other written authorization referencing this in its entirety. This AGREEMENT, the proposal and terms and conditions constitute the entire agreement between the client and GFA, and supersede all prior written or oral understanding. Please note that pricing is valid for a period of ninety (90) days from proposal date, The above signed, having full legal authority to bind the Client identified in the foregoing Proposal Agreement, has read the foregoing Proposal Agreement and .hereby agrees to all of the terms and conditions contained in GFA's standard Terms and Conditions attached hereto as Exhibit W which are incorporated herein by reference as a fundamental and material pert of the Proposal Agreement. The Client agrees and understands that GFA's Standard Terms and Conditions have been established in a large measure to allocate certain risks between Client and GFA, and GFA will not initiate services without Client's execution of agreement to the terms of the Proposal Agreement and the Standard Terms and Conditions and other terms and conditions set forth in this Agreement. 1215 Wallace Drive - Delray Beach, Florida 33444 - (561) 347.0070 - (561) 395 -5805 (fax) - www.teamgfa.com OFFICES THROUGHOUT FLORIDA REQUIRED CONTRACT PROVISIONS FEDERAL -AID CONSTRUCTION CONTRACTS I. General II. Nondiscrimination III. Nonsegregated Facilities IV. Davis -Bacon and Related Act Provisions V. Contract Work Hours and Safety Standards Act Provisions VI. Subletting or Assigning the Contract VI I. Safety: Accident Prevention VIII. False Statements Concerning Highway Projects IX. Implementation of Clean Air Act and Federal Water Pollution Control Act X. Compliance with Governmentwide Suspension and Debarment Requirements XI. Certification Regarding Use of Contract Funds for Lobbying ATTACHMENTS A. Employment and Materials Preference for Appalachian Development Highway System or Appalachian Local Access Road Contracts (included in Appalachian contracts only) I. GENERAL 1. Form FHWA -1273 must be physically incorporated in each construction contract funded under Title 23 (excluding emergency contracts solely intended for debris removal). The contractor (or subcontractor) must insert this form in each subcontract and further require its inclusion in all lower tier subcontracts (excluding purchase orders, rental agreements and other agreements for supplies or services). The applicable requirements of Form FHWA -1273 are incorporated by reference for work done under any purchase order, rental agreement or agreement for other services. The prime contractor shall be responsible for compliance by any subcontractor, lower -tier subcontractor or service provider. Form FHWA -1273 must be included in all Federal -aid design - build contracts, in all subcontracts and in lower tier subcontracts (excluding subcontracts for design services, purchase orders, rental agreements and other agreements for supplies or services). The design - builder shall be responsible for compliance by any subcontractor, lower tier subcontractor or service provider. Contracting agencies may reference Form FHWA -1273 in bid proposal or request for proposal documents, however, the Form FHWA -1273 must be physically incorporated (not referenced) in all contracts, subcontracts and lower -tier subcontracts (excluding purchase orders, rental agreements and other agreements for supplies or services related to a construction contract). 2. Subject to the applicability criteria noted in the following sections, these contract provisions shall apply to all work performed on the contract by the contractor's own organization and with the assistance of workers under the contractor's immediate superintendence and to all work performed on the contract by piecework, station work, or by subcontract. FHWA -1273 -- Revised May 1, 2012 3. A breach of any of the stipulations contained in these Required Contract Provisions may be sufficient grounds for withholding of progress payments, withholding offinal payment, termination of the contract, suspension! debarment or any other action determined to be appropriate by the contracting agency and FHWA. 4. Selection of Labor: During the performance of this contract, the contractor shall not use convict labor far any purpose within the limits of a construction project on a Federal -aid highway unless it is labor performed by convicts who are on parole, supervised rolease, or probation. The term Federal -aid highway does not include roadways functionally classified as local roads or rural minor collectors. 11. NONDISCRIMINATION The provisions of this section related to 23 CFR Part 230 are applicable to all Federal -aid construction contracts and to ail related construction subcontracts of $10,000 or more. The provisions of 23 CFR Part 230 are not applicable to material supply, engineering, or architectural service contracts. In addition, the contractor and all subcontractors must comply with the following policies: Fxecutive Order 11246, 41 CFR 60, 29 CFR 1625 -1627, Title 23 USC Section 140, the Rehabilitation Act of 1973, as amended (29 USC 794), Title Vi of the Civil Rights Act of 1964, as amended, and related regulations including 49 CFR Parts 21, 26 and 27; and 23 CFR Parts 200, 230, and 631 The contractor and atl subcontractors must comply with: the requirements of the Equal Opportunity Clause in 41 CFR 60- 1.4(b) and, for all construction contracts exceeding $10,000, the Standard Federal Equal Employment Opportunity Construction Contract Specifications in 41 CFR 60 -4.3. Note: The U.S. Department of Labor has exclusive authority to determine compliance with Executive Order 11246 and the policies of the Secretary of Labor including 41 CFR 60, and 29 CFR 1625 -1627. The contracting agency and the FHWA have the authority and the responsibility to ensure compliance with Title 23 USC Section 140, the Rehabilitation Act of 1973, as amended (29 USC 794), and Title VI of the Civil Rights Act of 1964, as amended, and related regulations including 49 CFR Parts 21, 26 and 27; and 23 CFR Parts 200, 230, and 633. The following provision is adopted from 23 CFR 230, Appendix A, with appropriate revisions to conform to the U.S. Department of Labor (US DOL) and FHWA requirements. 1. Equal Employment Opportunity: Equal employment opportunity (EEO) requirements not to discriminate and to take affirmative action to assure equal opportunity as set forth under laws, executive orders, rules, regulations (28 CFR 35, 29 CFR 1630, 29 CFR 1625 -1627, 41 CFR 60 and 49 CFR 27) and orders of the Secretary of Labor as modified by the provisions prescribed herein, and imposed pursuant to 23 U.S.C. 140 shall constitute the FED and specific affirmative action standards for the contractor's project activities under this contract. The provisions of the Americans with Disabilities Act of 1990 (42 U.S.C. 12101 et seq.) set forth under 28 CFR 35 and 29 CFR 1630 are incorporated by reference in this contract. In the execution of this contract, the contractor agrees to comply with the following minimum specific requirement activities of EEO: a. The contractor will work with the contracting agency and the Federal Government to ensure that it has made every good faith effort to provide equal opportunity with respect to all of its terrns and conditions of employment and in their review of activities under the contract. b. The contractor will accept as its operating policy the following statement: "It is the policy of this Company to assure that applicants are employed, and that employees are treated during employment, without regard to their race, religion, sex, color, national origin, age or disability. Such action shall include: employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship, pre - apprenticeship, and/or on -the- job training." 2. EEO Officer: The contractor will designate and make known to the contracting officers an EEO Officer who will have the responsibility for and must be capable of effectively administering and promoting an active EEO program and who must be assigned adequate authority and responsibility to do so. 3. Dissemination of Policy: All members of the contractor's staff who are authorized to hire, supervise, promote, and discharge employees, or who recommend such action, or who are substantially involved in such action, will be made fully cognizant of, and will implement, the contractor's EEO policy and contractual responsibilities to provide EEO in each grade and classification of employment. To ensure that the above agreement will be met, the following actions will be taken as a minimum: a. Periodic meetings of supervisory and personnel office employees will be conducted before the start at work and then not less often than once every six months, at which time the contractor's EEO policy and its implementation will be reviewed and explained. The meetings will be conducted by the EEO Officer. b. All new supervisory or personnel office employees will be given a thorough indoctrination by the EEO Officer, covering all major aspects of the contractor's EEO obligations within thirty days following their reporting for duty with the contractor. c. All personnel who are engaged in direct recruitment for the project wilt be instructed by the EEO Officer in the contractor's procedures for locating and hiring minorities and women. d. Notices and posters setting forth the contractors EEO policy will be placed in areas readily accessible to employees, applicants for employment and potential employees. e. The contractor's EEO policy and the procedures to implement such policy will be brought to the attention of employees by means of meetings, employee handbooks, or other appropriate means. 4. Recruitment: When advertising for employees, the contractor will include in all advertisements for employees the notation: "An Equal Opportunity Employer." All such advertisements will be placed in publications having a large circulation among minorities and women in the area from which the project workforce would normally be derived. a. The contractor will, unless precluded by a valid bargaining agreement, conduct systematic and direct recruitment through public and private employee referral sources likely to yield qualified minorities and women. To meet this requirement, the contractor will identify sources of potential minority group employees, and establish with such identified sources procedures whereby minority and women applicants may be referred to the contractor for employment consideration. b. In the event the contractor has a valid bargaining agreement providing for exclusive hiring hall referrals, the contractor is expected to observe the provisions of that agreement to the extent that the system meets the contractor's compliance with EEO contract provisions. Where implementation of such an agreement has the effect of discriminating against minorities or women, or obligates the contractor to do the same, such implementation violates Federal nondiscrimination provisions. c. The contractor will encourage its present employees to refer minorities and women as applicants for employment. Information and procedures with regard to referring such applicants will be discussed with employees. S. Personnel Actions: Wages, working conditions, and employee benefits shall be established and administered, and personnel actions of every type, including hiring, upgrading, promotion, transfer, demotion, layoff, and termination, shall be taken without regard to race, color, religion, sex, national origin, age or disability. The following procedures shall be followed: a. The contractor will conduct periodic inspections of project sites to insure that working conditions and employee facilities do not indicate discriminatory treatment of project site personnel. b. The contractor will periodically evaluate the spread of wages paid within each classification to determine any evidence of discriminatory wage practices. c. The contractor will periodically review seiected personnel actions in depth to determine whether there is evidence of discrimination. Where evidence is found, the contractor wilt promptly take corrective action. If the review indicates that the discrimination may extend beyond the actions reviewed, such corrective action shall include all affected persons. d. The contractor will promptly investigate all complaints of alleged discrimination made to the contractor in connection with its obligations under this contract, will attempt to resolve such complaints, and will take appropriate corrective action within a reasonable time. If the investigation indicates that the discrimination may affect persons other than the complainant, such corrective action shall include such other persons. Upon completion of each investigation, the contractor will inform every complainant of all of their avenues of appeal. 6. Training and Promotion: a. The contractor will assist in locating, qualifying, and increasing the skills of minorities and women who are applicants for employment or current employees. Such efforts should be aimed at developing full journey level status employees in the type of trade or job classification involved. b. Consistent with the contractor's workforce requirements and as permissible under Federal and State regulations, the contractor shall make full use of training programs, i.e., apprenticeship, and on-the-job training programs for the geographical area of contract performance. In the event a special provision for training is provided under this contract, this subparagraph will be superseded as indicated in the special provision. The contracting agency may reserve training positions for persons who receive welfare assistance in accordance with 23 U.S.C. 140(a). c. The contractor will advise employees and applicants for employment of available training programs and entrance requirements for each. d. The contractor will periodically review the training and promotion potential of employees who are minorities and women and will encourage eligible employees to apply for such training and promotion. 7. Unions: If the contractor relies in whole or in part upon unions as a source of employees, the contractor will use good faith efforts to obtain the cooperation of such unions to increase opportunities for minorities and women. Actions by the contractor, either directly or through a contractor's association acting as agent, will include the procedures set forth below: a. The contractor will use good faith efforts to develop, in cooperation with the unions, joint training programs aimed toward qualifying more minorities and women for membership in the unions and increasing the skills of minorities and women so that they may qualify for higher paying employment. b. The contractor will use good faith efforts to incorporate an EEO clause into each union agreement to the end that such union will be contractually bound to refer applicants without regard to their race, color, religion, sex, national origin, age or disability. c. The contractor is to obtain information as to the referral practices and policies of the labor union except that to the extent such information is within the exclusive possession of the labor union and such labor union refuses to furnish such information to the contractor, the contractor shall so certify to the contracting agency and shall set forth what efforts have been made to obtain such information. d. In the event the union is unable to provide the contractor with a reasonable flow of referrals within the time limit set forth in the collective bargaining agreement, the contractor will, through independent recruitment efforts, fill the employment vacancies without regard to race, color, religion, sex, national origin, age or disability; making full efforts to obtain qualified andlor qualifiable minorities and women. The failure of a union to provide sufficient referrals (even though it is obligated to provide exclusive referrals under the terms of a collective bargaining agreement) does not relieve the contractor from the requirements of this paragraph. In the event the union referral practice prevents the contractor from meeting the obligations pursuant to Executive Order 91246, as amended, and these special provisions, such contractor shall immediately notify the contracting agency. 8. Reasonable Accommodation for Applicants ! Employees with Disabilities: The contractor must be familiar with the requirements for and comply with the Americans with Disabilities Act and all rules and regulations established there under. Employers must provide reasonable accommodation in all employment activities unless to de so would cause an undue hardship. 9. Selection of Subcontractors, Procurement of Materials and Leasing of Equipment: The contractor shall not discriminate on the grounds of race, color, religion, sex, national origin, age or disability in the selection and retention of subcontractors, including procurement of materials and leases of equipment. The contractor shall take all necessary and reasonable steps to ensure nondiscrimination in the administration of this contract. a. The contractor shall notify all potential subcontractors and suppliers and lessors of their EEO obligations under this contract. b. The contractor will use good faith efforts to ensure subcontractor compliance with their EEO obligations. 10. Assurance Required by 49 CPR 2613(b): a. The requirements of 49 CFR Part 26 and the State DOT's U.S. DOT- approved DBE program are incorporated by reference. b. The contractor or subcontractor shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. The contractor shall carry out applicable requirements of 49 CFR Part 26 in the award and administration of DOT- assisted contracts. Failure by the contractor to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy as the contracting agency deems appropriate. 11. Records and Reports: The contractor shall keep such records as necessary to document compliance with the EEO requirements. Such records shall be retained for a period of three years following the date of the final payment to the contractor for all contract work and shall be available at reasonable times and places for inspection by authorized representatives of the contracting agency and the FHWA. a. The records kept by the contractor shall document the following: (1) The number and work hours of minority and non - minority group members and women employed in each work classification on the project; (2) The progress and efforts being made in cooperation with unions, when applicable, to increase employment opportunities for minorities and women; and (3) The progress and efforts being made in locating, hiring, training, qualifying, and upgrading minorities and women; b. The contractors and subcontractors will submit an annual report to the contracting agency each July for the duration of the project, indicating the number of minority, women, and non - minority group employees currently engaged in each work classification required by the contract work. This information is to be reported on Form FHWA -1391. The staffing data should represent the project work force on board in all or any part of the last payroll period preceding the end of July. If on-the-job training is being required by special provision, the contractor will be required to collect and report training data. The employment data should reflect the work force on board during all or any part of the last payroll period preceding the end of July. 111. NONSEGREGATED FACILITIES This provision is applicable to all Federal -aid construction contracts and to all related construction subcontracts of $10,000 or more. The contractor must ensure that facilities provided for employees are provided in such a manner that segregation on the basis of race, color, religion, sex, or national origin cannot result. The contractor may neither require such segregated use by written or oral policies nor tolerate such use by employee custom. The contractor's obligation extends further to ensure that its employees are not assigned to perform their services at any location, under the contractor's control, where the facilities are segregated. The term "facilities" includes waiting rooms, work areas, restaurants and other eating areas, time clocks, restrooms, washrooms, locker rooms, and other storage or dressing areas, parking lots, drinking fountains, recreation or entertainment areas, transportation, and housing provided for employees. The contractor shall provide separate or single -user restrooms and necessary dressing or sleeping areas to assure privacy between sexes. IV. DAVIS -BACON AND RELATED ACT PROVISIONS This section is applicable to all Federal -aid construction projects exceeding $2,000 and to all related subcontracts and lower -tier subcontracts (regardless of subcontract size). The requirements apply to all projects located within the right -of- way of a roadway that is functionally classified as Federal -aid highway. This excludes roadways functional)y classified as local roads or rural minor collectors, which are exempt. Contracting agencies may elect to apply these requirements to other projects. The following provisions are from the U.S. Department of Labor regulations in 29 CFR 5.5 "Contract provisions and related matters" with minor revisions to conform to the FHWA- 1273 format and FHWA program requirements. 1. Minimum wages a. All laborers and mechanics employed or working upon the site of the work, will be paid unconditionally and not less often than once a week, and without subsequent deduction or rebate on any account (except such payroll deductions as are permitted by regulations issued by the Secretary of Labor under the Copeland Act (29 CFR part 3)), the full amount of wages and bona fide fringe benefits (or cash equivalents thereof) due at time of payment computed at rates not less than those contained in the wage determination of the Secretary of Labor which is attached hereto and made a part hereof, regardless of any contractual relationship which may be alleged to exist between the contractor and such laborers and mechanics. Contributions made or costs reasonably anticipated for bona fide fringe benefits under section 1(b)(2) of the Davis -Bacon Act on behalf of laborers or mechanics are considered wages paid to such laborers or mechanics, subject to the provisions of paragraph 1.d. of this section; also, regular contributions made or costs incurred for more than a weekly period (but not less often than quarterly) under plans, funds, or programs which cover the particular weekly period, are deemed to be constructively made or incurred during such weekly period. Such laborers and mechanics shall be paid the appropriate wage rate and fringe benefits on the wage determination for the classification of work actually performed, without regard to skill, except as provided in 29 CFR 5.5(a)(4). Laborers or mechanics performing work in more than one classification may be compensated at the rate specified for each classification for the time actually worked therein: Provided, That the employer's payroll records accurately set forth the time spent in each classification in which work is performed. The wage determination (including any additional classification and wage rates conformed under paragraph 1.b. of this section) and the Davis -Bacon poster (WH -1321) shall be posted at all times by the contractor and its subcontractors at the site of the work in a prominent and accessible place where it can be easily seen by the workers. b.(1) The contracting officer shall require that any class of laborers or mechanics, including helpers, which is not listed in the wage determination and which is to be employed under the contract shall be classified in conformance with the wage determination. The contracting officer shall approve an additional classification and wage rate and fringe benefits therefore only when the following criteria have been met: (i) The work to be performed by the classification requested is not performed by a classification in the wage determination; and (ii) The classification is utilized in the area by the construction industry; and (iii) The proposed wage rate, including any bona fide fringe benefits, bears a reasonable relationship to the wage rates contained in the wage determination. (2) If the contractor and the laborers and mechanics to be employed in the classification (if known), or their representatives, and the contracting officer agree on the classification and wage rate (including the amount designated for fringe benefits where appropriate), a report of the action taken shall be sent by the contracting officer to the Administrator of the Wage and Hour Division, Employment Standards Administration, U.S. Department of Labor, Washington, DC 20210. The Administrator, or an authorized representative, will approve, modify, or disapprove every additional classification action within 30 days of receipt and so advise the contracting officer or will notify the contracting officer within the 30 -day period that additional time is necessary. (3) In the event the contractor, the laborers or mechanics to be employed in the classification or their representatives, and the contracting officer do not agree on the proposed classification and wage rate (including the amount designated for fringe benefits, where appropriate), the contracting officer shall refer the questions, including the views of all interested parties and the recommendation of the contracting officer, to the Wage and Hour Administrator for determination. The Wage and Hour Administrator, or an authorized representative, will issue a determination within 30 days of receipt and so advise the contracting officer or will notify the contracting officer within the 30--day period that additional time is necessary. (4) The wage rate (including fringe benefits where appropriate) determined pursuant to paragraphs 1.b.(2) or It b.(3) of this section, shall be paid to all workers performing work in the classification under this contract from the first day on which work is performed in the classification. c. Whenever the minimum wage rate prescribed in the contract for a class of laborers or mechanics includes a fringe benefit which is not expressed as an hourly rate, the contractor shall either pay the benefit as stated in the wage determination or shall pay another bona fide fringe benefit or an hourly cash equivalent thereof. d. If the contractor does not make payments to a trustee or other third person, the contractor may consider as part of the wages of any laborer or mechanic the amount of any costs reasonably anticipated in providing bona fide fringe benefits under a plan or program, Provided, That the Secretary of Labor has found, upon the written request of the contractor, that the applicable standards of the Davis -Bacon Act have been met. The Secretary of Labor may require the contractor to set aside in a separate account assets for the meeting of obligations under the plan or program. 2. Withholding The contracting agency shall upon its own action or upon written request of an authorized representative of the Department of Labor, withhold or cause to be withheld from the contractor under this contract, or any other Federal contract with the same prime contractor, or any other federaliy- assisted contract subject to Davis -Bacon prevailing wage requirements, which is hold by the same prime contractor, so much of the accrued payments or advances as may be considered necessary to pay laborers and mechanics, including apprentices, trainees, and helpers, employed by the contractor or any subcontractor the full amount of wages required by the contract. In the event of failure to pay any laborer or mechanic, including any apprentice, trainee, or helper, employed or working on the site of the work, all or part of the wages required by the contract, the contracting agency may, after written notice to the contractor, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds until such violations have ceased. 3. Payrolls and basic records a. Payrolls and basic records relating thereto shall be maintained by the contractor during the course of the work and preserved for a period of three years thereafter for all laborers and mechanics working at the site of the work. Such records shall contain the name, address, and social security number of each such worker, his or her correct classification, hourly rates of wages paid (including rates of contributions or costs anticipated for bona fide fringe benefits or cash equivalents thereof of the types described in section 1(b)(2)(B) of the Davis -Bacon Act), daily and weekly number of hours worked, deductions made and actual wages paid. Whenever the Secretary of Labor has found under 29 CFR 5.5(a)(1)(iv) that the wages of any laborer or mechanic include the amount of any costs reasonably anticipated in providing benefits under a plan or program described in section 1(b)(2)(B) of the Davis- Bacon Act, the contractor shall maintain records which show that the commitment to provide such benefits is enforceable, that the plan or program is financially responsible, and that the plan or program has been communicated in writing to the laborers or mechanics affected, and records which show the costs anticipated or the actual cost incurred in providing such benefits. Contractors employing apprentices or trainees under approved programs shall maintain written evidence of the registration of apprenticeship programs and certification of trainee programs, the registration of the apprentices and trainees, and the ratios and wage rates prescribed in the applicable programs. b.(1) The contractor shall submit weekly for each week in which any contract work is performed a copy of all payrolls to the contracting agency. The payrolls submitted shall set out accurately and compieteiy all of the information required to be maintained under 29 CFR 5.5(a)(3)(i), except that full social security numbers and home addresses shall not be included on weekly transmittals. Instead the payrolls shall only need to include an individually identifying number for each employee e.g. , the last four digits of the employee's social security number). The required weekly payroll information may be submitted in any form desired. Optional Form WH --347 is available for this purpose from the Wage and Hour Division Web site at http: 1l www. dol. gov lesa /whdlforms/wh347instr.htm or its successor site. The prime contractor is responsible for the submission of copies of payrolls by all subcontractors. Contractors and subcontractors shall maintain the full social security number and current address of each covered worker, and shall provide them upon request to the contracting agency for transmission to the State DOT, the FHWA or the Wage and Hour Division of the Department of Labor for purposes of an investigation or audit of compliance with prevailing wage requirements. It is not a violation of this section for a prime contractor to require a subcontractor to provide addresses and social security numbers to the prime contractor for its own records, without weekly submission to the contracting agency.. (2) Each payroll submitted shall be accompanied by a "Statement of Compliance," signed by the contractor or subcontractor or his or her agent who pays or supervises the payment of the persons employed under the contract and shall certify the following: (i) That the payroll for the payroll period contains the information required to be provided under §5.5 (a)(3)(ii) of Regulations, 29 CFR part 5, the appropriate information is being maintained under §5.5 (a)(3)(i) of Regulations, 29 CFR part 5, and that such information is correct and complete; (ii) That each laborer or mechanic (including each helper, apprentice, and trainee) employed on the contract during the payroll period has been paid the full weekly wages earned, without rebate, either directly or indirectly, and that no deductions have been made either directly or indirectly from the full wages earned, other than permissible deductions as set forth in Regulations, 29 CFR part 3; (iii) That each laborer or mechanic has been paid not less than the applicable wage rates and fringe benefits or cash equivalents for the classification of work performed, as specified in the applicable wage determination incorporated into the contract. (3) The weekly submission of a properly executed certification set forth on the reverse side of Optional Form WH -347 shall satisfy the requirement for submission of the "Statement of Compliance" required by paragraph 3.b.(2) of this section. (4) The falsification of any of the above certifications may subject the contractor or subcontractor to civil or criminal prosecution under section 1001 of title 18 and section 231 of title 31 of the United States Code. c. The contractor or subcontractor shall make the records required under paragraph 3.a. of this section available for inspection, copying, or transcription by authorized representatives of the contracting agency, the State DOT, the FHWA, or the Department of Labor, and shall permit such representatives to interview employees during working hours on the job. If the contractor or subcontractor fails to submit the required records or to make them available, the FHWA may, after written notice to the contractor, the contracting agency or the State DOT, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds. Furthermore, failure to submit the required records upon request or to make such records available may be grounds for debarment action pursuant to 29 CFR 5.12. 4. Apprentices and trainees a. Apprentices (programs of the USDOL). Apprentices will be permitted to work at less than the predetermined rate for the work they performed when they are employed pursuant to and individually registered in a bona fide apprenticeship program registered with the U.S. Department of Labor, Employment and Training Administration, Office of Apprenticeship Training, Employer and Labor Services, or with a State Apprenticeship Agency recognized by the Office, or if a person is employed in his or her first 90 days of probationary employment as an apprentice in such an apprenticeship program, who is not individually registered in the program, but who has been certified by the Office of Apprenticeship Training, Employer and Labor Services or a State Apprenticeship Agency (where appropriate) to be eligible for probationary employment as an apprentice. The allowable ratio of apprentices to journeymen on the job site in any craft classification shall nut be greater than the ratio permitted to the contractor as to the entire work force under the registered program. Any worker listed on a payroll at an apprentice wage rate, who is not registered or otherwise employed as stated above, shall be paid not less than the applicable wage rate on the wage determination for the classification of work actually performed. In addition, any apprentice performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the wage determination for the work actually performed. Where a contractor is performing construction on a project in a locality other than that in which its program is registered, the ratios and wage rates (expressed in percentages of the joumeyman's hourly rate) specified in the contractor's or subcontractor's registered program shall be observed. Every apprentice must be paid at not less than the rate specified in the rogistorod program for the apprentice's level of progress, expressed as a percentage of the journeymen hourly rate specified in the applicable wage determination. Apprentices shall be paid fringe benefits in accordance with the provisions of the apprenticeship program. If the apprenticeship program does not specify fringe benefits, apprentices must be paid the full amount of fringe benefits listed on the wage determination for the applicable classification. If the Administrator determines that a different practice prevails for the applicable apprentice classification, fringes shall be paid in accordance with that determination. In the event the Office of Apprenticeship Training, Employer and Labor Services, or a State Apprenticeship Agency recognized by the Office, withdraws approval of an apprenticeship program, the contractor will no longer be permitted to utilize apprentices at less than the applicable predetermined rate for the work performed until an acceptable program is approved. b. Trainees (programs of the USDOL). Except as provided in 29 CFR 5.16, trainees will not be permitted to work at less than the predetermined rate for the work performed unless they are employed pursuant to and individually registered in a program which has received prior approval, evidenced by formal certification by the U.S. Department of Labor, Employment and Training Administration. The ratio of trainees to journeymen on the job site shall not be greater than permitted under the plan approved by the Employment and Training Administration. Every trainee must be paid at not less than the rate specified in the approved program for the trainee's level of progress, expressed as a percentage of the journeyman hourly rate specified in the applicable wage determination. Trainees shall be paid fringe benefits in accordance with the provisions of the trainee program. If the trainee program does not mention fringe benefits, trainees shall be paid the full amount of fringe benefits listed on the wage determination unless the Administrator of the Wage and Hour Division determines that there is an apprenticeship program associated with the corresponding journeyman wage rate on the wage determination which provides for less than full fringe benefits for apprentices. Any employee listed on the payroll at a trainee rate who is not registered and participating in a training plan approved by the Employment and Training Administration shall be paid not less than the applicable wage rate on the wage determination for the classification of work actually performed. In addition, any trainee performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the wage determination for the work actually performed. In the event the Employment and Training Administration withdraws approval of a training program, the contractor will no longer be permitted to utilize trainees at less than the applicable predetermined rate for the work performed until an acceptable program is approved. c. Equal employment opportunity. The utilization of apprentices, trainees and journeymen under this part shall be in conformity with the equal employment opportunity requirements of Executive Order 11246, as amended, and 29 CFR part 30. d. Apprentices and Trainees (programs of the U.S. DOT). Apprentices and trainees working under apprenticeship and skill training programs which have been certified by the Secretary of Transportation as promoting EEC in connection with Federal -aid highway construction programs are not subject to the requirements of paragraph 4 of this Section IV. The straight time hourty wage rates for apprentices and trainees under such programs will be established by the particular programs. The ratio of apprentices and trainees to journeymen shall not be greater than permitted by the terms of the particular program. S. Compliance with Copeland Act requirements. The contractor shall comply with the requirements of 29 CFR part 3, which are incorporated by reference in this contract. 6. Subcontracts. The contractor or subcontractor shall insert Form FHWA -1273 in any subcontracts and also require the subcontractors to include Form FHWA -1273 in any lower tier subcontracts. The prime contractor shall be responsible for the compliance by any subcontractor or lower tier subcontractor with all the contract clauses in 29 CFR 5.5. 7. Contract termination: debarment. A breach ofthe contract clauses in 29 CFR 5.5 may be grounds for termination of the contract, and for debarment as a contractor and a subcontractor as provided in 29 CFR 5.12. 8. Compliance with Davis -Bacon and Related Act requirements. All ruiings and interpretations of the Davis - Bacon and Related Acts contained in 29 CFR parts 1, 3, and 5 are herein incorporated by reference in this contract. 9. Disputes concerning labor standards. Disputes arising out of the labor standards provisions of this contract shall not be subject to the general disputes cia use of this contract. Such disputes shall be resolved in accordance with the procedures of the Department of Labor set forth in 29 CFR parts 5, 6, and 7. Disputes within the meaning ofthis clause include disputes between the contractor (or any of its subcontractors) and the contracting agency, the U.S. Department of Labor, or the employees or their representatives. 10. Certification of eligibility. a. By entering into this contract, the contractor certifies that neither it (nor he or she) nor any person or firm who has an interest in the contractor's firm is a person or firm ineligible to be awarded Government contracts by virtue of section 3(a) of the Davis -Bacon Act or 29 CFR 5.12(a)(1). b. No part of this contract shad be subcontracted to any person or firm ineligible for award of a Government contract by virtue of section 3(a) of the Davis -Bacon Act or 29 CFR 5.12(a)(1). c. The penalty for making false statements is prescribed in the U.S. Criminal Code, 18 U.S.G. 1001. V. CONTRACT WORK HOURS AND SAFETY STANDARDS ACT The following clauses apply to any Federa# -aid construction contract in an amount in excess of $100,000 and subject to the overtime provisions of the Contract Work Hours and Safety Standards Act. These clauses shall be inserted in addition to the clauses required by 29 CFR 5.5(a) or 29 CFR 4.6. As used in this paragraph, the terms laborers and mechanics include watchmen and guards. 1. Overtime requirements. No contractor or subcontractor contracting for any part of the contract work which may require or involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic in any workweek in which he or she is employed on such work to work in excess of forty hours in such workweek unless such laborer or mechanic receives compensation at a rate not less than one and one -half times the basic rate of pay for all hours worked in excess of forty hours in such workweek. 2. Violation; liability for unpaid wages; liquidated damages. In the event of any violation of the clause set forth in paragraph (1.) of this section, the contractor and any subcontractor responsible therefor shall be liabie for the unpaid wages. In addition, such contractor and subcontractor shalt be liable to the United States (in the case of work done under contract for the District of Columbia or a territory, to such District or to such territory), for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer or mechanic, including watchmen and guards, employed in violation of the clause set forth in paragraph (1.) of this section, in the sum at $10 for each calendar day on which such individual was required or permitted to work in excess of the standard workweek of forty hours without payment of the overtime wages required by the clause set forth in paragraph (1.) of this section. 3. Withholding for unpaid wages and liquidated damages. The FHWA or the contacting agency shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld, from any moneys payable on account of work performed by the contractor or subcontractor under any such contract or any other Federal contract with the same prime contractor, or any other federally- assisted contract subject to the Contract Work Hours and Safety Standards Act, which is held by the same prime contractor, such sums as may be determined to be necessary to satisfy any liabilities of such contractor or subcontractor for unpaid wages and liquidated damages as provided in the clause set forth in paragraph (2.) of this section. 4. Subcontracts. The contractor or subcontractor shall insert in any subcontracts the clauses set forth in paragraph (1.) through (4.) of this section and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The prime contractor shall be responsible for compliance by any subcontractor or lower tier subcontractor with the clauses set forth in paragraphs (1.) through (4.) of this section. VI. SUBLETTING OR ASSIGNING THE CONTRACT This provision is applicable to all Federal -aid wnstruction contracts on the National Highway System. 1. The contractor shall perform with its own organization contract work amounting to not less than 30 percent (or a greater percentage if specified elsewhere in the contract) of the total original contract price, excluding any specialty items designated by the contracting agency. Specialty items may be performed by subcontract and the amount of any such specialty items performed may be deducted from the total original contract price before computing the amount of work required to be performed by the contractors own organization (23 CFR 635.116). a. The term "perform work with its own organization" refers to workers employed or leased by the prime contractor, and equipment owned or rented by the prime contractor, with or without operators. Such term does not include employees or equipment of a subcontractor or lower tier subcontractor, agents of the prime contractor, or any other assignees. The term may include payments for the costs of hiring leased employees from an employee leasing firm meeting all relevant Federal and State regulatory requirements. Leased employees may only be included in this term if the prime contractor meets all of the following conditions: (1) the prime contractor maintains control over the supervision of the day -to -day activities of the leased employees; (2) the prime contractor remains responsible for the quality of the work of the leased employees; (3) the prime contractor retains all power to accept or exclude individual employees from work on the project; and (4) the prime contractor remains ultimately responsible for the payment of predetermined minimum wages, the submission of payrolls, statements of compliance and all other Federal regulatory requirements. b. "Specialty Items" shall be construed to be limited to work that requires highly specialized knowledge, abilities, or equipment not ordinarily available in the type of contracting organizations qualified and expected to bid or propose on the contract as a whole and in general are to be limited to minor components of the overall contract. 2. The contract amount upon which the requirements set forth in paragraph (1) of Section VI is computed includes the cost of material and manufactured products which are to be purchased or produced by the contractor under the contract provisions. 3. The contractor shall furnish (a) a competent superintendent or supervisor who is employed by the firm, has full authority to direct performance ofthe work in accordance with the contract requirements, and is in charge of all construction operations (regardless of who performs the work) and (b) such other of its own organizational resources (supervision, management, and engineering services) as the contracting officer determines is necessary to assure the performance of the contract. 4. No portion of the contract shall be sublet, assigned or otherwise disposed of except with the written consent of the contracting officer, or authorized representative, and such consent when given shall not be construed to relieve the contractor of any responsibility for the fulfillment of the contract. Written consent will be given only after the contracting agency has assured that each subcontract is evidenced in writing and that it contains all pertinent provisions and requirements of the prime contract. 5. The 30% self - performance requirement of paragraph (1) is not applicable to design -build contracts; however, contracting agencies may establish their own self - performance requirements. VII. SAFETY. ACCIDENT PREVENTION T h i s p r o v i s i o n i s applicable to all Federal -aid construction contracts and to all related subcontracts. 1. In the performance of this contract the contractor shall comply with all applicable Federal, State, and local laws governing safety, health, and sanitation (23 CFR 635). The contractor shall provide all safeguards, safety devices and protective equipment and take any other needed actions as it determines, or as the contracting officer may determine, to be reasonably necessary to protect the life and health of employees on the job and the safety of the public and to protect property in connection with the performance of the work covered by the contract. 2. It is a condition of this contract, and shall be made a condition of each subcontract, which the contractor enters into pursuant to this contract, that the contractor and any subcontractor shall not permit any employee, in performance of the contract, to work in surroundings or under conditions which are unsanitary, hazardous or dangerous to his /her health or safety, as determined under construction safety and health standards (29 CFR 1926) promulgated by the Secretary of Labor, in accordance with Section 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C. 3704). 3. Pursuant to 29 CFR 1926.3, it is a condition of this contract that the Secretary of Labor or authorized representative thereof, shall have right of entry to any site of contract performance to inspect or investigate the matter of compliance with the construction safety and health standards and to carry out the duties of the Secretary under Section 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C.3704). Vill. FALSE STATEMENTS CONCERNING HIGHWAY PROJECTS T h i s p r o v i s i o n i s applicable to all Federal -aid construction contracts and to all related subcontracts. In order to assure high quality and durable construction in conformity with approved plans and specifications and a high degree of reliability on statements and representations made by engineers, contractors, suppliers, and workers on Federal - aid highway projects, it is essential that all persons concerned with the project perform their functions as carefully, thoroughly, and honestly as possible. Willful falsification, distortion, or misrepresentation with respect to any facts related to the project is a violation of Federal law. To prevent any misunderstanding regarding the seriousness of these and similar acts, Form FHWA -1022 shall be posted on each Federal -aid highway project (23 CFR 635) in one or more places where it is readily available to all persons concerned with the project: 18 U.S.C. 1020 reads as follows: '"Whoever, being an officer, agent, or employee of the United States, or of any State or Territory, or whoever, whether a person, association, firm, or corporation, knowingly makes any false statement, false representation, or faise report as to the character, quality, quantity, or cost of the material used or to be used, or the quantity or quality of the work performed or to be performed, or the cost thereof in connection with the submission of plans, maps, specifications, contracts, or costs of construction on any highway or related project submitted for approval to the Secretary of Transportation; or Whoever knowingly makes any false statement, false representation, false report or false claim with respect to the character, quality, quantity, or cost of any work performed or to be performed, or materials furnished or to be furnished, in connection with the construction of any highway or related project approved by the Secretary of Transportation; or Whoever knowingly makes any false statement or false representation as to material fact in any statement, certificate, or report submitted pursuant to provisions of the Federal -aid Roads Act approved July 1, 1916, (39 Stat 355), as amended and supplemented; Shall be fined under this title or imprisoned not more than 5 years or both." IX. IMPLEMENTATION OF CLEAN AIR ACT AND FEDERAL WATER POLLUTION CONTROL ACT This provision is applicable to all Federal -aid construction contracts and to all related subcontracts. By submission of this bidiproposal or the execution of this contract, or subcontract, as appropriate, the bidder, proposer, Federal -aid construction contractor, or subcontractor, as appropriate, will be deemed to have stipulated as follows: 1. That any person who is or will be utilized in the performance of this contract is not prohibited from receiving an award due to a violation of Section 508 of the Clean Water Act or Section 306 of the Clean Air Act. 2. That the contractor agrees to include or cause to be included the requirements of paragraph (1) of this Section X in every subcontract, and further agrees to take such action as the contracting agency may direct as a means of enforcing such requirements. X. CERTIFICATION REGARDING DEBARMENT, SUSPENSION, INELIGIBILITY AND VOLUNTARY EXCLUSION This provision is applicable to all Federal -aid construction contracts, design -build contracts, subcontracts, lower -tier subcontracts, purchase orders, lease agreements, consultant contracts or any other covered transaction requiring FHWA approval or that is estimated to cost $25,000 or more — as defined in 2 CFR Parts 180 and 1200. 1. Instructions for Certification — First Tier Participants: a. By signing and submitting this proposal, the prospective first tier participant is providing the certification set out below. b, The inability of a person to provide the certification set out below will not necessarily result in denial of participation in this covered transaction. The prospective first tier participant shall submit an explanation of why it cannot provide the certification set out below. The certification or explanation will be considered in connection with the department or agency's determination whether to enter into this transaction. However, failure of the prospective first tier participant to furnish a certification or an explanation shall disqualify such a person from participation in this transaction. c. The certification in this clause is a material representation of fact upon which reliance was placed when the contracting agency determined to enter into this transaction. If it is later determined that the prospective participant knowingly rendered an erroneous certification, in addition to other remedies availabie to the Federal Government, the contracting agency may terminate this transaction for cause of default. d. The prospective first tier participant shall provide immediate written notice to the contracting agency to whom this proposal is submitted if any time the prospective first tier participant learns that its certification was erroneous when submitted or has become erroneous by reason of changed circumstances. e. The terns "covered transaction," "debarred," " suspended," "ineligible," "participant," "person," "principal," and "voluntarily excluded," as used in this clause, are defined in 2 CFR Parts 180 and 1200. "First Tier Covered Transactions" refers to any covered transaction between a grantee or subgrantee of Federal funds and a participant (such as the prime or general contract). "Lower Tier Covered Transactions" refers to any covered transaction under a First Tier Covered Transaction (such as subcontracts). "First Tier Participant" refers to the participant who has entered into a covered transaction with a grantee or subgrantee of Federal funds (such as the prime or general contractor). "Lower Tier Participant" refers any participant who has entered into a covered transaction with a First Tier Participant or other Lower Tier Participants (such as subcontractors and suppliers). f. The prospective first tier participant agrees by submitting this proposal that, should the proposed covered transaction be entered into, it shall not knowingly enter into any lower tier covered transaction with a person who is debarred, suspended, declared ineligible, or voluntarily excluded from participation in this covered transaction, unless authorized by the department or agency entering into this transaction. g. The prospective first tier participant further agrees by submitting this proposal that it will include the clause titled "Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion -Lower Tier Covered Transactions," provided by the department or contracting agency, entering into this covered transaction, without modification, in all lower tier covered transactions and in all solicitations for lower tier covered transactions exceeding the $25,000 threshold. h. A participant in a covered transaction may rely upon a certification of a prospective participant in a lower tier covered transaction that is not debarred, suspended, ineligible, or voluntarily excluded from the covered transaction, unless it knows that the certification is erroneous. A participant is responsible for ensuring that its principals are not suspended, debarred, or otherwise ineligible to participate in covered transactions. To verify the eligibility of its principals, as well as the eligibility of any lower tier prospective participants, each participant may, but is not required to, check the Excluded Parties List System website fhitps: / /www.el)ls.clov/ , which is compiled by the General Services Administration. i. Nothing contained in the foregoing shall be construed to require the establishment of a system of records in order to render in good faith the certification required by this clause. The knowledge and information of the prospective participant is not required to exceed that which is normally possessed by a prudent person in the ordinary course of business dealings. j. Except for transactions authorized under paragraph (f) of these instructions, if a participant in a covered transaction knowingly enters into a lower tier covered transaction with a person who is suspended, debarred, ineligible, or voluntarily excluded from participation in this transaction, in addition to other remedies available to the Federal Government, the department or agency may terminate this transaction for cause or default. 2. Certification Regarding Debarment, Suspension, Ineligibility and Voluntary EXCIUSion — First Tier Participants: a. The prospective first tier participant certifies to the best of its knowledge and belief, that it and its principals: (1) Are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participating in covered transactions by any Federal department or agency; (2) Have not within a three -year period preceding this proposal been convicted of or had a civil judgment rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (Federal, State or local) transaction or contract under a public transaction; violation of Federal or State antitrust statutes or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property; (3) Are not presently indicted for or otherwise criminally or civilly charged by a governmental entity (Federal, State or local) with commission of any of the offenses enumerated in paragraph (a)(2) of this certification; and (4) Have not within a three -year period preceding this application /proposal had one or more public transactions (Federal, State or local) terminated for cause or default. b. Where the prospective participant is unable to certify to any of the statements in this certification, such prospective participant shall attach an explanation to this proposal. 2. Instructions for Certification - Lower Tier Participants: (Applicable to all subcontracts, purchase orders and other lower tier transactions requiring prior FHWA approval or estimated to cost $25,000 or more - 2 CFR Parts 180 and 1200) a. By signing and submitting this proposal, the prospective lower tier is providing the certification set out below. b. The certification in this clause is a material representation of fact upon which reliance was placed when this transaction was entered into. If it is later determined that the prospective lower tier participant knowingly rendered an erroneous certification, in addition to other remedies available to the Federal Government, the department, or agency with which 10 this transaction originated may pursue available remedies, including suspension and /or debarment. c. The prospective lower tier participant shall provide immediate written notice to the person to which this proposai is submitted if at any time the prospective lower tier participant learns that its certification was erroneous by reason of changed circumstances. d. The terms "covered transaction," "debarred," "suspended," "ineligible," "participant," "person," "principal," and "voluntarily excluded," as used in this clause, are defined in 2 CFR Parts 180 and 1200. You may contact the person to which this proposal is submitted for assistance in obtaining a copy of those regulations. "First Tier Covered Transactions" refers to any covered transaction between a grantee or subgrantee of Federal funds and a participant (such as the prime or general contract). "Lower Tier Covered Transactions" refers to any covered transaction under a First Tier Covered Transaction (such as subcontracts). "First Tier Participant refers to the participant who has entered into a covered transaction with a grantee or subgrantee of Federal funds (such as the prime or general contractor). "Lower Tier Participant" refers any participant who has entered into a covered transaction with a First Tier Participant or other Lower Tier Participants (such as subcontractors and suppliers). e. The prospective lower tier participant agrees by submitting this proposal that, should the proposed covered transaction be entered into, it shall not knowingly enter into any lower tier covered transaction with a person who is debarred, suspended, declared ineligible, or voluntarily excluded from participation in this covered transaction, unless authorized by the department or agency with which this transaction originated. f. The prospective lower tier participant further agrees by submitting this proposal that it will include this clause titled "Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion -Lower Tier Covered Transaction," without modification, in all lower tier covered transactions and in all solicitations for lower tier covered transactions exceeding the $25,000 threshold. g. A participant in a covered transaction may rely upon a certification of a prospective participant in a lower tier covered transaction that is not debarred, suspended, ineligible, or voluntarily excluded from the covered transaction, unless it knows that the certification is erroneous. A participant is responsible for ensuring that its principals are not suspended, debarred, or otherwise ineligible to participate in covered transactions. To verify the eligibility of its principals, as well as the eligibility of any lower tier prospective participants, each participant may, but is not required to, check the Excluded Parties List System website (httl)s: / /www.epis.gov /), which is compiled by the General Services Administration. h. Nothing contained in the foregoing shall be construed to require establishment of a system of records in order to render in good faith the certification required by this clause, The knowledge and information of participant is not required to exceed that which is normally possessed by a prudent person in the ordinary course of business dealings. i. Except for transactions authorized under paragraph a of these instructions, if a participant in a covered transaction knowingly enters into a lower tier covered transaction with a person who is suspended, debarred, ineligible, or volunta rity excluded from participation in this transaction, in addition to other remedies available to the Federal Government, the department or agency with which this transaction originated may pursue available remedies, including suspension and/or debarment. Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion- -Lower Tier Participants: 1. The prospective lower tier participant certifies, by submission of this proposal, that neither it nor its principals is presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participating in covered transactions by any Federal department or agency. 2, Where the prospective lower tier participant is unable to certify to any of the statements in this certification, such prospective participant shall attach an explanation to this proposal. XL CERTIFICATION REGARDING USE OF CONTRACT FUNDS FOR LOBBYING This provision is applicable to all Federal -aid construction contracts and to all related subcontracts which exceed $100,000 {49 CFR 20 }. 1. The prospective participant certifies, by signing and submitting this bid or proposal, to the best of his or her knowledge and belief, that: a. 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 Federal 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 contract, 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 contract, grant, loan, or cooperative agreement. b. 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 Federal agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form -LLL, 'Disclosure Form to Report Lobbying," in accordance with its instructions. 2. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by 31 U.S.C. 1352. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $40,000 and not more than $100,000 for each such failure. 3. The prospective participant also agrees by submitting its bid or proposal that the participant shall require that the language of this certification be included in all lower tier subcontracts, which exceed $100,000 and that all such recipients shall certify and disclose accordingly. ATTACHMENT A - EMPLOYMENT AND MATERIALS PREFERENCE FOR APPALACHIAN DEVELOPMENT HIGHWAY SYSTEM OR APPALACHIAN LOCAL ACCESS ROAD CONTRACTS This provision is applicable to all Federal -aid projects funded under the Appalachian Regional Development Act of 1965. I. During the performance of this contract, the contractor undertaking to do work which is, or reasonably may be, done as on -site work, shall give preference to qualified persons who regularly reside in the labor area as designated by the DOL wherein the contract work is situated, or the subregion, or the Appalachian counties of the State wherein the contract work is situated, except: a. To the extent that qualified persons regularly residing in the area are not available. b. For the reasonable needs of the contractor to employ supervisory or specially experienced personnel necessary to assure an efficient execution of the contract work. c. For the obligation of the contractor to offer employment to present or former employees as the result of a lawful collective bargaining contract, provided that the number of nonresident persons empioyed under this subparagraph (1 c) shall not exceed 20 percent of the total number of employees employed by the contractor on the contract work, except as provided in subparagraph (4) below. 2. The contractor shall place a job order with the State Employment Service indicating (a) the 6assifications of the laborers, mechanics and other employees required to perform the contract work, (b) the number of employees required in each classification, (c) the date on which the participant estimates such employees will be required, and (d) any other pertinent information required by the State Employment Service to complete the job order form. The job order may be placed with the State Employment Service in writing or by telephone. If during the course of the contract work, the information submitted by the contractor in the original job order is substantially modified, the participant shall promptly notify the State Fmp #oyment Service. 3. The contractor shalt give full consideration to all qualified job applicants referred to him by the State Employment Service. The contractor is not required to grant employment to any job applicants who, in his opinion, are not qualified to perform the classification of work required. 4. If, within one week following the placing of a job order by the cantractorwith the State Employment Service, the State Employment Service is unable to refer any qualified job applicants to the contractor, or less than the number requested, the State Employment Service will forward a certificate to the contractor indicating the unavailability of applicants. Such certificate shall be made a part of the contractor's permanent project records. Upon receipt of this certificate, the contractor may employ persons who do not normally reside in the labor area to fill positions covered by the certificate, notwithstanding the provisions of subparagraph (1c) above. 5. The provisions of 23 CFR 633.207(e) allow the contracting agency to provide a contractual preference for the use of mineral resource materials native to the Appalachian region. WA 6. The contractor shall include the provisions of Sections t through 4 of this Attachment A in every subcontract for work which is, or reasonably may be, done as on -site work. I. ■ ■ ■ ■ ■1■ . N■■ IIINIINI NIA ■ ■111 WIN ON ■Illlrlll�'�" ��� NINE ■1■ ■■■ „-REM I uu n 11= Nil; Us..!■ ill iii uu1111ruuurul' _■�'••• NI ll r� 111111 11111 ■ -- . +111 �- ■ t 5ss I= _ 171 •_ - -�-1= ZEN S s _ * ■111 "7 - -EE Los 's _ ,, r� ■!__I! r. J 11W — =■ulnr - ��_l.7 ll' u ��� ■ II■ _ 17 :■ , �� ■ ■N ■ ■L7 M E11'll_ _ ��- 11j�� � 111 ■ ■N ■1 ■udl- -_ X1.11■ _' �i- : ■11■ ■1 ■ ■ ■1 ��^ No I.. .. ' �� 1� ■ �_ .� .I-„ ■ ■111■ ■ 1111 Ell 1 61 Elm in n �■ . . —.. IH", . �Ir■ — _ _ 11111E _ 1�_ •N• i0 1wro 1■- - - �� r !111 u1 ■ r ~��; la ■ i u■ 1 ! SI '1=101 NT u_1 �=■■ ■ �_ :d! 1 =_i-= uu_u ■r __:_� ===� -1111 ■11: � _ __� _ === IIIIIIII�1 11111_ — 1i 11 == == -- N �_ _ ■ uuu Ir X111111 T 4 = := s lu III E' ; — - I INIIIIon _— �� ■ ■1111 I�I��I�11 —_ _ 1= �- . ■! IIP1uw uuuuu ulnuu 1111��■ =i NO 11 1N11N1 uuuuuuuuu nu■u u I 111u11u1u- i . = _ _ _ NNINE „ 1111■ 1 uluu u � Ilu�� ■ r:'li` — '11�V MEMORANDUM TO: Mayor and City Commissioners FROM: Timothy Tack, Project Manager ESD /CRA Randal Krejcarek, City Engineer Victor Majtenyi, Interim Director of Environmental Services THROUGH: Louie Chapman, Jr., City Manager DATE: May 24, 2013 SUBJECT: AGENDA ITEM 8.F.1 - REGULAR COMMISSION MEETING OF JUNE 4, 2013 AMENDMENT 1 TO AGREEMENT / R.J. BEHAR & COMPANY, INC. ITEM BEFORE COMMISSION Request for Commission approval and authorization for the Mayor to execute Amendment #1 to the Agreement with R.J. Behar & Company, Inc. for Construction Engineering and Inspection Services (CEI) for the Federal Highway Beautification Project #2009 -009. The cost of Amendment #1 is $16,050.00. BACKGROUND On January 3, 2013, City Commission approved the agreement with R.J. Behar & Company, Inc. for Construction Engineering and Inspection Services (CEI) for the Federal Highway Beautification Project. Per the construction contract, testing of materials and products will be performed by an independent testing laboratory appointed and paid for by the City, with all testing to be coordinated by the contractor, and with the City paying for all passing tests. However, to meet the testing requirements set forth in the FDOT specifications, the contractor has to hire an independent testing laboratory and is required to certify that all work on the project, including Quality Control sampling and testing, is in compliance with a FDOT approved Quality Control Plan (this award is under a separate agenda item). In addition, FDOT specifications require that the City hire an independent testing laboratory to perform "verification testing" on the Contractor's Quality Control sampling and testing. Therefore, item for consideration is Amendment #1 to the agreement between the City and the Construction Engineering and Inspection firm of R.J. Behar and Company, Inc. It is for professional services in performing verification testing that will confirm the results of the Contractor's tests per compliance with FDOT specifications. The cost of services is in the amount of $16,050.00; funding for this service was anticipated and budgeted as part of the project's overall cost. FUNDING SOURCE Funding for the Project is as follows: $16,050.00 from #334 - 3162 - 541.68 -52 RECOMMENDATION Staff recommends approval. CONSULTING SERVICE AUTHORIZATION DATE CONSULTANT: R.J. Behar & Comapany, Inc. SERVICE AUTHORIZATION NO. CITY P.O. NO. FOR CONSULTING SERVICES CITY EXPENSE CODE CITY PROJECT NO. 2009 -009 CONSULTANT PROJECT NO. TITLE: Amendment 91 to the Agreement for General Consulting Services for Construction Engineering and Inspection Services This Amendment No. 1 provides for additional services, and shall become part of the agreement dated February 20, 2013 between the parties and that all terms and conditions contained in that Agreement, which are not amended by this Amendment No. 1, shall govern. L PROJECT DESCRIPTION Consultant shall provide Verification Laboratory Testing Services to verify results from Contractor's Quality Control sampling and testing in accordance with Florida Department of Transportation guidelines and specifications. II. SCOPE OF SERVICES Phase V — Construction Administration Task 1 Coordinate, Oversee and Pay for Verification Laboratory Testing and Engineering Services in accordance with approved Quality Control Plan. III. TIME OF PERFORMANCE Engineering Services Time per Phase Phase V — Construction Administration 24 months IV. COMPENSATION Engineering Services Estimated Fees Phase V — Construction Administration $16,050.00 Total Project Cost $16,050.00 Notes: Out -of- Pocket Expenses include the following: printing /reproduction /postage. Cumulative Time 24 months Page 1 of 2 This service authorization is approved contingent upon the City's acceptance of and satisfaction with the completion of the 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 services provided in the previous phase or service authorization, the City may terminate the contract without incurring any further liability. The CONSULTANT may 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: Date Mayor Attest: Approved as to Legal Sufficiency City Attorney CONSULTANT: Date an (Seal) Witness (Signature) Witness (Printed) BEFORE ME, the foregoing instrument, this day of , 201 , was acknowledged by on behalf of the Corporation , and said person executed the same free and voluntarily for the purpose there -in expressed. Witness my hand and seal in the County and State aforesaid this day of Notary Public State of Florida My Commission Expires: 201 Page 2 of 2 I. ■ ■ ■ ■ ■1■ . N■■ IIINIINI NIA ■ ■111 WIN ON ■Illlrlll�'�" ��� NINE ■1■ ■■■ „-REM I uu n 11= Nil; Us..!■ ill iii uu1111ruuurul' _■�'••• NI ll r� 111111 11111 ■ -- . +111 �- ■ t 5ss I= _ 171 •_ - -�-1= ZEN S s _ * ■111 "7 - -EE Los 's _ ,, r� ■!__I! r. J 11W — =■ulnr - ��_l.7 ll' u ��� ■ II■ _ 17 :■ , �� ■ ■N ■ ■L7 M E11'll_ _ ��- 11j�� � 111 ■ ■N ■1 ■udl- -_ X1.11■ _' �i- : ■11■ ■1 ■ ■ ■1 ��^ No I.. .. ' �� 1� ■ �_ .� .I-„ ■ ■111■ ■ 1111 Ell 1 61 Elm in n �■ . . —.. IH", . �Ir■ — _ _ 11111E _ 1�_ •N• i0 1wro 1■- - - �� r !111 u1 ■ r ~��; la ■ i u■ 1 ! SI '1=101 NT u_1 �=■■ ■ �_ :d! 1 =_i-= uu_u ■r __:_� ===� -1111 ■11: � _ __� _ === IIIIIIII�1 11111_ — 1i 11 == == -- N �_ _ ■ uuu Ir X111111 T 4 = := s lu III E' ; — - I INIIIIon _— �� ■ ■1111 I�I��I�11 —_ _ 1= �- . ■! IIP1uw uuuuu ulnuu 1111��■ =i NO 11 1N11N1 uuuuuuuuu nu■u u I 111u11u1u- i . = _ _ _ NNINE „ 1111■ 1 uluu u � Ilu�� ■ r:'li` — '11�V III' 1111 pl1111111I11111NJIII IN III (a -n M FIRST AMENDMENT TO THE INTERLOCAL AGREEMENT BETWEEN THE CITY OF DELRAY BEACH AND THE DELRAY BEACH COMMUNITY REDEVELOPMENT AGENCY FOR THE US 1 CORRIDOR IMPROVEMENT U, PROJECT ; C3 THIS FIRST AMENDMENT to the Interlocal Agreement dated November 8, 2011, m, co between the DELRAY BEACH COMMUNITY REDEVELOPMENT AGENCY, hereinafter 0 referred to as "CRA ", and the CITY OF DELRAY BEACH hereinafter referred to as the 0 `�, 0 "CITY ", is hereby entered into this `D dcB ay of , z6 Z.�i 0 WITNESSETH: X t,.� Ul WHEREAS, at its meeting of August 11, 2011, the CRA Board of Commissioners f..r1 agreed to provide tax increment funds to repay financing that the CITY obtains for the U.S. 1 c r, Corridor Improvement Project (the "Project ") up to an amount not to exceed One Million Eight --r Hundred Fifty Six Thousand, Seven Hundred Eight and 001100 Dollars ($1,856,708.00), plus M interest, subject to the terms and conditions of an Interlocal Agreement; r WHEREAS, the CRA and CITY entered into an Interlocal Agreement dated November c r 8, 2011 ( "Original Agreement ") to provide for the CRA to commit funding to the CITY for the o:r� �x Project within the CRA's Community Redevelopment Area); and rg.) 9) WHEREAS, the lowest responsive bid obtained for the Project, along with the required J1 Construction Engineering and Inspection (CEI) services, Post Design services, and required . s s..l testing, increases the total Project cost by Three Million Five Hundred Fourteen Thousand, Nine r, Hundred Sixty Dollars and Thirteen Cents ($3,514,960.13) (the "Increased Project Cost "); and WHEREAS, the CITY and CRA have agreed to equally fund the Increased Project Cost, with the CRA paying fifty percent (50 %) of the Increased Project Cost, up to an amount not to exceed One Million, Seven Hundred Fifty -Seven Thousand, Four Hundred Eighty and 071100 Dollars ($1,757,480.07); and WHEREAS, as a result of the funding of the Increased Project Cost, the CRA's total maximum repayment of financing for the Project will be an amount not to exceed Three Million, Six Hundred Fourteen Thousand One Hundred Eighty -Eight and 071100 Dollars ($3,614,188.07), �E WHEREAS, the parties desire to amend the Original Agreement in order to provide for the CRA to provide the additional funding in order to assist the CITY with the Project ( "First Amendment "). NOW, THEREFORE, in consideration of the mutual covenants and promises herein contained, the parties hereby agree as follows: herein. I. Recitals. The recitals set forth above are hereby incorporated as if fully set forth 2. That Section 2 of the Original Agreement is amended in its entirety, to read as follows: 2. The CRA shall repay funds borrowed by the CITY for the U.S. Highway 1 Corridor Improvement Project (the "Project"); as follows: a. One Million, Eight Hundred Fifty Six Thousand, Seven Hundred Eight and 001100 Dollars ($1,856,708.00), plus b. Based on actual project costs the CRA shall pay 50% of the increased costs, up to an amount not to exceed One Million, Seven Hundred Fifty - Seven Thousand Four Hundred Eighty and 071100 Dollars ($1,757,480.07) plus c. Interest, subj ect to the terms and conditions contained herein. 3. That Section 3 of the Original Agreement is amended in its entirety, to read as follows: 3. Prior to obtaining the funds and agreeing to the repayment terms, the CITY shall first obtain the consent of the CRA, which such consent shall be granted if the terms and conditions of the repayment agreement provide for repayment as follows: An interest -only payment shall be made by the CRA in Fiscal Year 2012 -2013; principal and interest payments shall commence in Fiscal Year 2013 -2014, and shall be made over a period of 2 approximately 10 years, with an interest rate comparable to the rate that the City pays for funds borrowed for this project. The CRA may provide this consent by written notification from the CRA Executive Director.. The CRA shall provide such consent no later than twenty (20) days following receipt of the written request by the CITY for such consent. 4. All other terms and conditions of the Original Agreement, not in conflict with this First Amendment, shall remain in full force and effect. IN WITNESS OF TYIE FOREGOING, the parties have set their hands and seals on the day and year written above. ATTEST: City Clerk Approved as to Form: City Attorney ATTEST: " All &`_ Diane Colonna, Executive Director STATE OF FLORIDA COUNTY OF PALM BEACH The 2012, by CITY OF DELRAY BEACH, FLORIDA By: Thomas F. Carney, Jr., Mayor DELRAY BEACH COMMUNITY REDEVELOPMENT AGENCY By: - -_ - Howard Lewis, Chair (SEAL) ;oing ent was acknowledged efore xxle this NGU��� j5 as �rrMA�✓ l day ofC� rnl-j ;•.� (name of officer or agent, title of officer or agent), of r jn C (name of corporation acknowledging), a (state or pla& of incorporation) corporation, on behalf of the corporation. He/She is personally- -AnDwn to mc_ or has produced type of identificatio ) as i ntificatio *tenrri� 'r'1� �.o1'� ?x �� ! - comissio� #04873348 per: "4 EXPIRE&MAR.23,2013 '%()F� V wwwA,RONNOTARrCOM of Public — ate of Florid DNT:dnt H:I GOV CLIENTSIDBCRA 555/060018 DBCRAIAGMT 2012Wirst Amendment to ILA with City for US I -REV 2.doex 3 Project #2009 -009 US 1 Beautification Funding Project Costs Construction CEI Post Design Testing Total Costs Funding 448 442 Fed FDOT Developer Contribution ILA w/ CRA Sub -total Unfunded Balance 50/50 split CRA Contribution City Contribution Printed: 12/6/201210:06 AM $12,486,967.77 $1,256,607.00 $98,271.36 $150,000.00 $13,991,846.13 $700,000.00 $500,000.00 $2,189,840.00 $5,051,604.00 $178,734.00 $1,856,708.00 $10,476,886.00 $3,514,960.13 ($13,991,846.13 - $10,476,886.00) $1,757,480.07 ($3,514,960.13/2) $3,614,188.07 ($1,856,708.00 +$1,757,480.07) $1,757,480.07 C: \Program Files \neevia.com \docConverterPro\ temp \NVDC \409392F5 -ODA7- 4386 -8F56- A76CA7B11264 \PDFConvert. 16373.1. 2012- 12- 04_funding_breakdown.xlsx AGREEMENT FOR GENERAL CONSULTING SERVICES THIS AGREEMENT, made and entered into this day of , 20, by and between the CITY of Delray Beach, Florida, hereinafter referred to as "CITY ", and R.J. ar Gompany, Inc. hereinafter referred to as "CONSULTANT ". WITNESSETH: WHEREAS, the CITY has provided notice of the desired professional services and carried out the proper selection process pursuant to and in accordance with the Consultant's Competitive Negotiation Act; and, WHEREAS, the CITY represents that it is a Florida municipal corporation with the authority to engage the CONSULTANT and accept the obligation for payment for the services desired; and, WHEREAS, the CITY desires to engage the CONSULTANT to perform certain professional services pertinent to such work in accordance with this AGREEMENT and with SERVICE AUTHORIZATIONS to be issued at the time of or subsequent to execution of this AGREEMENT; and WHEREAS, this AGREEMENT does not entitle the CONSULTANT to any fees for any particular project without first receiving a Service Authorization; and WHEREAS, the CONSULTANT desires to provide such professional services in accordance with this AGREEMENT and SERVICE AUTHORIZATIONS. NOW, THEREFORE, in consideration of the premises and the mutual benefits which will accrue to the parties hereto in carrying out the terms of this AGREEMENT, it is mutually understood and agreed as follows: L DEFINITIONS; GENERAL CONDITIONS A. THE SCOPE OF WORK is to be implemented in phases as set forth by this Agreement and by SERVICE AUTHORIZATIONS, which are attached hereto and made a part hereof, and as also may be added as approved by the City from time to time. B. A SERVICE AUTHORIZATION is a form to be used to authorize work, projects, and services. The form shall be executed by the CITY'S and CONSULTANT'S representatives. A CITY purchase order number shall be identified on the form. The purchase order authorization is established in the CITY Code of Ordinances with provisions for expenditure levels of approval authorizations. The projects, work, and services to be performed by the CONSULTANT, and time for completion of the particular phase of the work by CONSULTANT, shall be authorized by a SERVICE AUTHORIZATION. The SERVICE AUTHORIZATION shall include the scope of work to be performed; the budget cost, complete with an itemization of man - hours, wage rates, reimbursable expenses, and other related costs; schedule for completion and name of project manager. The SERVICE AUTHORIZATION shall be signed by the CITY and the CONSULTANT'S authorized representative. A CITY purchase order shall be issued with authorization identifying funds and amount of expenditures. The terms of this AGREEMENT supersede the terms stated on the purchase order. C. PHASES: A phased approach may be utilized. The City and the Consultant shall have the right to negotiate the terms of each phase as contained within each service authorization, and to reject any service authorization, if the parties cannot agree to the terms of the service authorization. In the event the parties cannot agree, the city may select the next ranked proposer or go out for additional proposals in order to complete the subsequent phase(s) of the project. This phased approach shall not waive the City's right to terminate the Consultant's contract during any phase of the project. II. GENERAL DUTIES OF CONSULTANT A. The relationship of the CONSULTANT to the CITY will be that of a professional CONSULTANT, and the CONSULTANT will provide the professional and technical services required under this AGREEMENT in accordance with acceptable professional practices and ethical standards. No employer /employee relationships shall be deemed to be established and the CONSULTANT, its agents, subcontractors, and employees shall be independent contractors at all times. B. Professional and Technical Services. It shall be the responsibility of the CONSULTANT to work with the CITY and apprise it of solutions to problems and the approach or technique to be used towards accomplishment of the CITY'S objectives as set forth in SERVICE AUTHORIZATIONS, which will be made a part of this AGREEMENT upon execution by both parties. C. The scope of services to be provided shall be covered in detail in SERVICE AUTHORIZATIONS. D. The CONSULTANT and its subconsultants shall have no responsibility for the discovery, presence, handling or removal or disposal of or exposure of persons to hazardous materials in any form existing prior to construction at the project site, including but not limited to asbestos, asbestos products, polychlorinated biphenyl (PCB) or any other toxic substances. E. The CONSULTANT designates _David Romano , as its representative to act as liaison with the CITY. The representative shall manage and coordinate CITY projects and is hereby authorized to act on behalf of the CONSULTANT to negotiate and approve SERVICE AUTHORIZATIONS and act on any other related matter with respect to performance of services for the CITY in accordance with the AGREEMENT. Any change to name another person shall be requested in writing to the CITY, and shall be approved by the City. F. CONSULTANT shall attend all meetings, as specified or as defined in each SERVICE AUTHORIZATION of the City Conunission or any City approval Board, where the project is discussed, unless the City's representative declares such attendance and participation is not necessary. In addition, the CONSULTANT shall attend all additional meetings as may be required to facilitate the project. Ill. DUTIES OF CONSULTANT: The following Duties of CONSULTANT are separated into phases of the project, which if approved via SERVICE AUTHORIZATIONS shall be performed by the CONSULTANT. The City may require SERVICE AUTHORIZATIONS, which contain additional requirements applicable to the project. The City must authorize through service authorizations, the commencement of each phase of the work. A. Phase I — Study and Report Phase. NIA B. Phase II — Preliminary Design Phase. NIA C. Phase III. Final Design Phase. NIA D. Phase IV — Bidding/Negotiation Phase. NIA E. Phase V Construction Phase, If Contract Administration is authorized, the following requirements shall apply: 1. The CONSULTANT shall provide administration of the contract for construction as set forth herein and as contained within the general conditions of the contract for construction and as contained within Exhibit C. 2. The CONSULTANT shall be a representative of and shall advise and consult with the CITY during construction and until final payment to the contractor is due. The CONSULTANT shall have authority to act on behalf of the CITY only to the extent provided in this AGREEMENT and as provided in the contract for construction unless otherwise modified by written instrument. 3. The CONSULTANT shall visit the site at regular intervals appropriate to the stage of construction or as otherwise agreed to by the CITY and the CONSULTANT, in writing, to become generally familiar with the progress and quality of the work completed and shall determine in general if the work is being performed in a manner indicating that the work when completed will be in accordance with the contract documents. The CONSULTANT shall be required to make on -site observations to review the work. The CONSULTANT shall keep the CITY informed of the progress and quality of the work and shall provide certification to the CITY of satisfactory completion of all phases of the work in compliance with the plans, specifications thereto. 4. The CONSULTANT shall not have control over or charge of and shall not be responsible for construction means, methods, techniques, sequences or procedures of construction or for safety precautions and programs in connection with the work, since these are solely the CONTRACTOR'S responsibility under the contract for construction. The CONSULTANT shall make every reasonable effort to ensure that the CONTRACTOR completes the work in accordance with the current approved schedule and carries out the work in accordance with the Contract documents. 5. The CONSULTANT based on observations and evaluations of CONTRACTOR'S applications for payment shall review and certify the amounts due the CONTRACTOR. 6. The CONSULTANT'S certification for payment shall constitute a representation to the CITY, based on the CONSULTANT'S observations at the site as provided herein and on the data comprising the CONTRACTOR'S application for payment, that the work has progressed to the point indicated and that, to the best of the CONSULTANT'S knowledge, information, and belief, the quality and quantity of the work is the accordance with the contract documents. The foregoing representations are subject to an evaluation of the work for conformance with the contract documents upon substantial completion, to results of subsequent tests and inspections, to minor deviations from the contract documents, correctable prior to completion and to specific qualifications expressed by the CONSULTANT. The issuance of the certificate of payment shall further constitute a representation that the CONSULTANT has made observations to review the quality or quantity of the work. 7. The CONSULTANT shall recommend disapproval or rejection of CONTRACTOR'S work to the CITY, which does not conform to the contract documents. The CONSULTANT will have authority to require additional inspection or testing of the work in accordance with the provisions of the contract documents, whether or not work is fabricated, installed or completed. S. The CONSULTANT shall review and approve or take other appropriate action upon CONTRACTOR'S submittals, such as shop drawings, product data, and samples for the purpose of checking for conformance with information given and the design concept expressed in the contract documents. The CONSULTANT shall evaluate and determine the acceptability of substitute materials and equipment proposed by CONTRACTORS. 9. The CONSULTANT shall prepare change orders and construction change directives with supporting documentation and data if deemed necessary bye the CONSULTANT, for the CITY'S approval and execution in accordance with the contract documents, and may authorized minor changes in the work not involving an adjustment in the contract time, which is consistent with the intent of the contract documents. 10, The CONSULTANT shall conduct inspections to determine the date or dates of substantial completion and the date of final completion, shall receive and forward to the CITY for the CITY'S review and records, written warranties and related documents required by the contract documents and assembled by the CONTRACTOR and shall issue a final certificate for payment upon compliance with the requirements of the contract documents. 11. The CONSULTANT shall interpret matters concerning performance of the CITY and CONTRACTOR under the requirements of the contract documents on written request of either the CITY or CONTRACTOR. The CONSULTANT'S response to such requests shall be made with reasonable promptness and within any time limits agreed upon. 12. Interpretations of the CONSULTANT shall be consistent with the intent of and reasonably inferable from the contract documents and shall be in writing or in the form of drawings. When making such interpretations, the CONSULTANT shall endeavor to secure faithful performance by both the CITY and the CONTRACTOR. 13. The CITY shall be the final arbiter- on matters relating to aesthetics. 14. The CONSULTANT shall review the plans and specifications and continuously provide feedback on any potential constructability issues including solutions, ensuring the design minimizes construction and long term maintenance costs throughout the entire course of construction. 15. The CONSULTANT shall render written interpretations within a reasonable time on all internal disputes between the CITY and CONTRACTOR relating to the execution of the progress of the work as provided in the contract documents. 16. The CONSULTANT "S interpretations on internal disputes are not binding on the CITY and CONTRACTOR relating to the execution of the progress of the work as provided in the contract documents. 17. Upon completion of construction the CONSULTANT shall provide to the CITY, three sets of record drawings, signed and sealed, plus one set of mylars incorporating as built conditions and other data furnished by contractor(s) to CONSULTANT. 18. In company with the City, the CONSULTANT shall visit the Project to observe any apparent defects In the completed construction, assist the CITY in consultations and discussions with CONTRACTOR(S) concerning correction of such deficiencies, and make recommendations as to replacement or correction of defection work. P. Phase VI -- Resident Project Representative Services Phase If the Resident Project Representative Services Phase is authorized the following requirements shall apply: A. A Resident Project Representative will be assigned to assist CONSULTANT in carrying out his responsibilities to CITY at the site. Resident Project Representative is CONSULTANT'S agent at site, will act as directed by and under the supervision of CONSULTANT, and will confer with CONSULTANT regarding Resident Representative's actions. Resident Representative's dealing in matters pertaining to the on -site work shall in general be with CONSULTANT and CONTRACTOR keeping the CITY advised as necessary. Resident Project Representative's dealings with subcontractors shall only be through or with the full knowledge and approval of CONTRACTOR. Resident Project Representative shall generally communicate with the CITY with the knowledge of and under the direction of CONSULTANT. B. Resident Project Representative shall where applicable: I. Review the progress schedule, schedule of Shop Drawing submittals and schedule of values prepared by CONTRACTOR and consult with CONSULTANT concerning its general acceptability. 2. Attend meetings with CONTRACTOR, such as preconstruction conferences, progress meetings, job conferences and other project- related meetings, and prepare and circulate copies of minutes thereof. 3. Working principally through CONTRACTOR'S superintendent, assist CONSULTANT in serving as the City's liaison with CONTRACTOR, when CONTRACTOR'S operations affect the CITY'S on- site operations. d. Assist in obtaining from the CITY additional details or information, when required for proper execution of the Work. 5. Record date of receipt of Shop Drawings and samples. 6. Receive samples, which are furnished at the site by CONTRACTOR, and notify the CONSULTANT of availability of samples for examination. 7. Advise the CONSULTANT and CONTRACTOR of the commencement of any Work requiring a Shop Drawing, if the submittal has not been approved by the CONSULTANT. 8. Conduct on -site observations of the Work in progress to assist the CONSULTANT in determining if the Work is, in general, proceeding in accordance with the Contract Documents. 9. Report to the CONSULTANT whenever Residential Project Representative believes that any Work is unsatisfactory, faulty or defective or does not conform to the Contract Documents; or has been damaged, or does not meet the requirements of any inspection, test or approval required to be made. Advise the CONSULTANT of Work that Resident Project Representative believes should be uncovered for observation, or requires special testing, inspection or approval. Nothing herein shall relieve the CONTRACTOR or the CONSULTANT from the duties imposed by the contract. 10. Verify that tests, equipment and systems startups, and operating and maintenance training are conducted in the presence of appropriate personnel, and that CONTRACTOR maintains adequate records thereof, and observe, record and report to the CONSULTANT appropriate details relative to the test procedures and startups. 11. Accompany visiting inspectors representing public or other agencies having jurisdiction over the Project, record the results of these inspections and report to the CONSULTANT. 12. Report to CONSULTANT when clarifications and interpretations of the Contract Documents are needed and transmit to CONTRACTOR clarifications and interpretations as issued by the CONSULTANT. 13. Consider and evaluate CONTRACTOR'S suggestions for modifications in Drawings or Specifications and report with Resident Project Representative's recommendations to the CONSULTANT. Transmit to CONTRACTOR decisions as issued by the CONSULTANT. 14. Maintain at the job site orderly files for correspondence, reports of job conferences, Shop Drawings and samples, reproductions of original Contract Documents, including all Work Directive Changes, Addenda, Change Orders, Field Orders, additional Drawings issued subsequent to the execution of the Contract, CONSULTANT'S clarifications and interpretations of the Contract Documents, progress reports, and other Project related documents 15. Keep a diary or log book, recording CONTRACTOR hours on the job site, weather conditions, data relative to questions of Work Directive Changes, Change Orders or changed conditions, list of job site visitors, daily activities, decisions, observations in general, and specific observations in more detail as in the case of observing test procedures; and send copies to the CONSULTANT. 1.6. Record all names, addresses and telephone numbers of the CONTRACTOR, all subcontractors and major suppliers of material and equipment. 17. Furnish the CONSULTANT periodic reports as required of progress of the Work of the CONTRACTOR'S compliance with the progress schedule and schedule of Shop Drawing and sample submittals. 18. Consult with the CONSULTANT in advance of schedule major tests, inspections or start of important phases of the Work. 19. Draft proposed Change Orders and Work Directive Changes, obtaining backup materials from CONTRACTOR and recommend to the CONSULTANT, Change Orders, Work Directive Changes, and Field Orders. 20. Report inunediately to the CONSULTANT and the CITY upon the occurrence of any accident. 21. Review applications for payment with CONTRACTOR for compliance with the established procedure for their submission and forward with recommendations to the CONSULTANT noting particularly the relationship of the payment requested to the schedule of values, Work completed and materials and equipment delivered at the site, but not incorporated in the Work. 22. During the course of the work, verify that certificates, maintenance and operation manuals and other data required to be assembled and furnished by CONTRACTOR are applicable to the items actually installed and in accordance with the Contract Documents, and have this material delivered to the CONSULTANT for review and forwarding to CITY prior to final payment for the Work. 23. Before the CONSULTANT issues a Certificate of Substantial Completion, submit to CONTRACTOR a list of observed items requiring completion or correction. 24. Conduct final inspection in the company of the CONSULTANT, the CITY and the CONTRACTOR and prepare a final list of items to be completed or corrected. 25. Observe that all items on final list have been completed or corrected and make recommendations to the CONSULTANT concerning acceptance. C. The Resident Project Representative shall not: 1. Authorize any deviation fi•om the Contract Documents or substitution of materials or equipment. 2. Exceed limitations of the CONSULTANT'S authority as set forth in the Contract Documents. 3. Undertake any of the responsibilities of CONTRACTOR, subcontractors, or CONTRACTOR'S superintendent. 4. Advise on, issue directions regarding or assume control over any aspect of the means, methods, techniques, sequences or procedures of construction unless such advice or directions are specifically required by the Contract Documents. 5. Advise on, issue directions regarding or assume control over safety precautions and programs in connection with the Work. b. Accept Shop Drawing or sample submittals, from anyone other than CONTRACTOR. 7. Authorize the CITY to occupy the Project in whole or in part. S. Participate in specialized field or laboratory tests or inspections conducted by others except as specifically authorized by the CONSULTANT. IV. DATA AND SERVICES TO BE PROVIDED BY THE CITY The CITY shall provide the following: A. Furnish or cause to be furnished such reports, studies, instruments, documents, and other information as the CONSULTANT and CITY mutually deem necessary and which are under control of the CITY. B. Other data and services to be agreed upon in subsequent SERVICE AUTHORIZATIONS. C. Pay for all legal advertisements incidental to obtaining bids or proposals from contractors. D. The CITY Manager or his designee shall act as the CITY'S representative with respect to the work to be performed under this AGREEMENT. The CITY Manager or his designee shall have the authority to the extent authorized by the CITY Charter and Code of Ordinances to exercise the rights and responsibilities of the CITY provided in this contract. Said authority may include but is not limited to: transmit instructions, stop work, receive information, interpret CITY'S policies and decisions with respect to materi- als, equipment, elements, and systems pertinent to the services covered by this AGREEMENT. E. Pay all permit application filing fees. F. Provide access to CITY facilities. V. TIME OF PERFORMANCE A. The CONSULTANT will begin work promptly after issuance of a Notice to Proceed. B. The CONSULTANT'S services called for under the AGREEMENT shall be completed in accordance with the schedule contained in each SERVICE AUTHORIZATION. If the CONSULTANT'S services are unreasonably delayed by the CITY in excess of 180 days, the time of performance and compensation shall be renegotiated, provided; however, the CONSULTANT as a condition precedent to renegotiations shall notify the City within fifteen (15) calendar days at the end of the delay of CONSULTANT'S proposed additional costs incurred by reason of said delay. VI. AGREEMENT PERIOD The agreement shall be for two (2) years with the right to renew for three (3) one (1) year extensions. Each one year renewal will be at the City's discretion. However, the agreement shall extend until all Service Authorizations are completed. Each Service Authorization shall delineate a time for completion of the services to be rendered VII. COMPENSATION A. The CITY will compensate the CONSULTANT for the services performed on each SERVICE AUTHORIZATION in accordance with a negotiated lump sum, or a not to exceed budgeted amount based on time charges which are based upon hourly rates, plus reimbursable expenses if compensation is based on Method II and other related costs as are specified in the SERVICE AUTHORIZATION. 1. METHOD 1 - LUMP SUM Lump _Sum Amount. Wherever possible, the scope of services for Services, Projects or Programs shall be thoroughly defined and outlined prior to its authorization. The CITY and CONSULTANT shall mutually agree to a lump sum amount for services to be rendered and a detailed scope of services. Should the CITY deem that a change in the scope of services is appropriate, then a decrease or increase in compensation shall be authorized in writing. In lump sum contracts, the CONSULTANT shall submit the estimated man - hours, wage rates and other actual unit costs supporting the compensation. The CONSULTANT shall submit a truth in negotiation certificate stating that all data supporting the compensation is accurate, complete and current at the time of contracting. B. Subcontractual service shall be invoiced at the actual fees paid by the CONSULTANT, plus an additional ten percent (10 %) of the cost of these services to compensate CONSULTANT, for the procuring and management of the sub - consultant, and for the other financial and administrative costs. Subcontractuai services shall be approved by the CITY in writing prior to perforrxrance of the subcontractual work. C. Total Compensation (including, but not limited to compensation for sub - consultants) for all services and expenses shall not exceed the budget cost listed upon each SERVICE AUTHORIZATION, without written approval. D. If the CITY determines that any price for services, however calculated provided by the CONSULTANT, including profit, negotiated in connection with this AGREEMENT or any cost reimbursable under this AGREEMENT was increased by any significant sums because the CONSULTANT or any subcontractor furnished incomplete or inaccurate costs or pricing data, then such price or cost or profit shall be reduced accordingly and the SERVICE AUTHORIZATION shall be reduced accordingly and the SERVICE AUTHORIZATION shall be modified in writing to reflect such reduction. VIII.PAYMENT The CITY agrees that it will use its best effort to pay the CONSULTANT within thirty (30) calendar days from presentation of the CONSULTANT'S itemized report and invoice and approval of the CITY'S representative, unless additional time for processing is required for payments for basic services, subcontractual services, and reimbursable expenses as defined in Section VII. The CONSULTANT shall submit monthly invoices, as required in the SERVICE AUTHORIZATION, which shall include a. report of work completed during the respective invoice period. Invoices shall be in a format consistent with those shown in Exhibit B. The report shall be adequate in detail to describe work progress (% complete for each task) and written summaries of work completed. No payment request shall exceed the value of work and services performed by the CONSULTANT under the SERVICE AUTHORIZATION. Payment to the CONSULTANT will be based on the percent of construction completed. IX. MISCELLANEOUS PROVISIONS A. Copies of Documents: The CONSULTANT shall prepare sufficient copies of all documents necessary to obtain approval through the City's processes, as well as other governmental authorities.. The CITY acknowledges that data provided in connection with this Agreement which are provided by the CONSULTANT are not intended for use in connection with any project other than the project for which such materials are prepared. Any use by the CITY of such materials in connection with a project other than that for which such materials were prepared without prior written consent and adaptation by the CONSULTANT shall be at the CITY'S sole risk, and the CONSULTANT shall have no responsibility or liability therefore. B. Insurance: Without limiting any of the other obligations or liabilities of the CONSULTANT, the CONSULTANT shall, at his own expense, provide and maintain in force, until all of its services to be perforated under this AGREEMENT have been completed and accepted by the CITY (or for such duration as it otherwise specified hereinafter), the following insurance coverages: 1. Worker's Compensation Insurance to apply to all of the CONSULTANT'S employees in compliance with the "Worker's Compensation Law" of the State of Florida and all applicable Federal Laws. A. Employer's Liability with limits of $100,000 per person, $500,000 per occurrence and $100,000 per each disease. 2. Comprehensive General Liability with minimum limits of one million dollars ($1,000,000.00) per occurrence combined single limit for Bodily Injury Liability and Property Damage Liability. Coverage must be afforded on a form no more restrictive than the latest edition of the Comprehensive General Liability policy, without restrictive endorsements other than ISO Endorsement GL 21 06 (Engineers, Architects, or Survey- ors Professional Liability exclusion), as Filed by the Insurance Services Office and must include: a. Premises and/or Operations b. Independent Contractors c. Products and Completed Operations - CONSULTANTS shall maintain in force until at least three years after completion of all services required under this AGREEMENT, coverage for Products and Completed Operations, including Broad Form Property Damage. d. Broad Form Property Damage c. Contractual Coverage applicable to this specific AGREEMENT. f. Personal Injury Coverage with minimum limits of coverage equal to those required for Bodily Injury Liability. 3. Business Automobile Liability with minimum limits of three hundred thousand dollars ($300,000.00) per occurrence combined single limit for Bodily Injury Liability and Property Damage Liability. Coverage must be afforded on a form no more restrictive than the latest edition of the Business Automobile Liability policy, without restrictive endorsements, as filed by the Insurance Services Office and must include: a. Owned Vehicles b. Hired and Non -Owned Vehicles c. Employers' Non - Ownership 4. Professional Liability Insurance with minimum limits per occurrence applicable to CITY projects as follows: Construction Cost Range Limit a. 0- 99,000 250,000 b. 100,000 - 299,000 500,000 c. 300,000 - 499,000 750,000 d. 500,000 - Above 1,000,000 Coverage shall be afforded on a form acceptable to the CITY. CONSULTANT shall maintain such professional liability insurance until at least one year after a Certificate of Occupancy is issued. CONSULTANT shall insure that sub - consultants used for any portion of the project, maintain adequate levels of Professional Liability Insurance. Prior to commencement of services, the CONSULTANT shall provide to the CITY Certificates of Insurance evidencing the insurance coverage specified in the foregoing Paragraphs C1, C2, C3, C4. All policies covered within subparagraphs C1, C2, C3, C4, shall be endorsed to provide the CITY with thirty (30) days notice of cancellation and /or restriction. The CITY shall be named as an additional insured as to CONSULTANT'S liability on policies referenced in subparagraphs C2. The required Certificates of Insurance shall not only name the types of policies provided, but also shall refer specifi- cally to this AGREEMENT and section and to the above paragraphs in accordance with which insurance is being furnished, and shall state that such insurance is as required by such paragraphs of this AGREEMENT. The CONSULTANT shall also make available to the CITY a certified copy of the professional liability insurance policy required by paragraph 4 above for the City's review. Upon request, the CONSULTANT shall provide copies of all other insurance policies. 6. If the initial insurance policies required by this AGREEMENT expire prior to the completion of the services, renewal Certificates of Insurance of policies shall be furnished thirty (30) days prior to the date of their expiration. For Notice of Cancellation and/or Restriction; the policies must be endorsed to provide the CITY with thirty (30) days notice of cancellation and/or restriction. 7. The CONSULTANT'S insurance, including that applicable to the CITY as an Additional Insured, shall apply on a primary basis. D. Litigation Services: It is understood and agreed that CONSULTANT'S services include reasonable participation in litigation or dispute resolution arising from this AGREEMENT. CONSULTANTS participation shall include up to 30 hours of services related to litigation or dispute resolution. Any such services in excess of 30 hours shall be an extra service. E. Authority to Contract: The CITY represents that it is a Florida Municipal Corporation with the authority to engage the CONSULTANT for professional services described in the SERVICE AUTHORIZATIONS and to accept the obligation for payment for the services described in the SERVICE AUTHOR- IZATIONS. F. Assignment: The CITY and the CONSULTANT each binds itself and its successors, legal representatives, and assigns to the other party to this AGREEMENT and to the partners, successors, legal representatives, and assigns of such other party, in respect to all covenants of this AGREEMENT subject to budget considerations and requirements of law; and, neither the CITY nor the CONSULTANT will assign or transfer their interest in this AGREEMENT without the written consent of the other. G. Confidential Information: During all times that the CONSULTANT is employed on behalf of the CITY and at all times subsequent to the date of this contract, all discussions between the CITY and the CONSULTANT and all information developed or work products produced by the CONSULTANT during its employment and all matters relevant to the business of the CITY not otherwise being a matter of public record shall be deemed to be confidential. All such information and work product shall be protected by the CONSULTANT and shall not be revealed to other persons without the express written permission of the CITY, unless mandated by order of the court. H. Non - Exclusive Contract: The CITY reserves the right to award projects to other firms pursuant to the Florida Statutes Consultant's Competitive Negotiations Act during the period of service of the CONSULTANT. The CONSULTANT agrees to cooperate with the CITY and other firms in accomplishing work that may require joint efforts to accomplish the CITY'S goals. This cooperation, when requested by the CITY, will include but not be limited to: 1. Sharing technical information developed under contract with the CITY. 2. Joint meetings for project coordination. 3. Establish lines of communication. I. Subconsultants: In the event the CONSULTANT, during the course of the work under this AGREEMENT requires the services of any subcontractors or other professional associates in connection with services covered by this AGREEMENT, CONSULTANT must secure the prior written approval of the CITY. J. Notices: Whenever either party desires to give notice unto the other, it must be given by written notice, sent by registered United States mail, with return receipt requested, addressed to the party for whom it is intended at the place last written, as the place for giving of notice in compliance with the provisions of this paragraph. For the present, the parties designate the following as the respective places of giving of notice to wit: CITY of Delray Beach CITY MANAGER City of Delray Beach, Florida 100 NW I st Avenue Delray Beach, Florida 33444 CONSULTANT David Romano Director of Construction Management Services 6 861 SW 1961h Avenue, Suite 307 Pembroke Pines FL 33332 K. Attachments: Request for Proposals is hereby incorporated within and made an integral part of this AGREEMENT. L. Truth -In- Negotiation Certificate: Signature of this AGREEMENT by CONSULTANT shall act as the execution of a truth in negotiation certificate stating that wage rates and other factual unit costs supporting the compensation of this AGREEMENT are accurate, complete, and current. The original contract price and any additions thereto shall be adjusted to exclude any significant sums by which the CITY determines the contract price was increased due to inaccurate, incomplete, or non - current wage rates and other factual unit costs. M. Records: Records of all expenses relative to each SERVICE AUTHORIZATION shall be kept on a generally recognized accounting basis and shall be available to the CITY or its authorized representative at mutually convenient times. N. Personnel: The CONSULTANT represents that it has or will secure, at its own expense, qualified personnel required in performing the services under this AGREEMENT. All work shall be performed under the direction of a professional, registered under the State of Florida in the field for which he is responsible for performing such services. The project manager shall be approved by the CITY under each SERVICE AUTHORIZATION. Key project personnel will be identified for each project and expected to perform the work assignment as can reasonably be expected. O. Equal Opportunity Employment: CONSULTANT agrees that it will not discriminate against any employee or applicant for employment for work under this Agreement because of race, color, religion, sex, age or national origin. Such action shall include, but not be limited to the following: employment, upgrading, demotion or transfer; recruitment advertising; lay -off or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The CONSULTANT agrees to post in conspicuous places, available to employees and applicants for employment, notices setting forth this non - discrimination clause. This provision applies to all CONSULTANT'S subcontractors and it is the responsibility of CONSULTANT to ensure subcontractor's compliance. P. Prohibition Against Contingent Fees: The CONSULTANT warrants that he has not employed or retained any company or person, other than a bona fide employee working solely for the CONSULTANT, to solicit or secure this AGREEMENT, and that he has not paid or agreed to pay any persons, company, corporation, individual or firm, other than a bona fide employee working solely for the CONSULTANT any fee, commission, percentage, gift, or any other consideration, contingent upon or resulting from the award or making of this AGREEMENT. Q. Termination: This AGREEMENT may be terminated by either party by seven (7) calendar days prior written notice, in the event of substantial failure to perform in accordance with the terms hereof by the other party through no fault of the terminating party. The CITY shall have the right to terminate this AGREEMENT for convenience at any time by thirty (30) calendar days written notice to the consultant. In the event the project described in any SERVICE AUTHORIZATION, or the services of the CONSULTANT called for under any SERVICE AUTHORIZATION, is or are suspended, canceled, or abandoned by the CITY, the CONSULTANT shall be given five days prior written notice of such action and shall be compensated for the professional services provided and reimbursable expenses incurred up to the date of suspension, cancellation or abandonment. The CONSULTANT agrees to provide all documents to the CITY (specifically those referenced in paragraph IX.A. Further, prior to the CONSULTANT'S destruction of any of the above referenced documents, the CITY shall be notified and allowed a reasonable period to gain access to and make copies of any such documents. Upon any termination of this AGREEMENT, the CONSULTANT agrees that it shall use its best efforts to work harmoniously with any successor who enters an AGREEMENT to provide services for the CITY in order to provide for a smooth transition period. R. Indemnification: In consideration of ten dollars ($10.00) and other valuable consideration, the CONSULTANT will at all times indemnify, save and hold harmless and defend the CITY, its officers, agents (the term agents shall not include the contractor(s), any subcontractors, any materialmen or others who have been retained by the City or Contractor, or materialmen to supply goods or services to the project) and employees, from and against all liability, any claim, demand, damage, loss, expense or cause of action and costs (including attorney's fees at trial or appellate levels) arising out of error, omission, or negligent act of CONSULTANT, its agents, servants or employees in the performance of services under this agreement. The CONSULTANT further agrees to indemnify, hold harmless and defend the City,its officers, agents and employees from and against any claim, demand or cause of action arising out of any negligence or misconduct of CONSULTANT for which the City, its agents, servants or employees are alleged to be liable. The indemnification's contained herein shall survive the expiration or earlier termination of this Agreement. Nothing in this AGREEMENT shall be deemed to affect the rights, privileges and immunities of the CITY as set forth in Florida Statutes 768.28. S. Interest of the Consultant: The CONSULTANT covenants that it presently has no interest and shall not acquire any interest, direct or indirect, in any Project to which this AGREEMENT pertains or any other interest which would conflict in any manner or degree with the performance of its services hereunder, The CONSULTANT further covenants that in the performance of this AGREEMENT, no person having such interest shall be employed. T. Compliance with Laws: a. The CONSULTANT shall comply with the applicable requirements of State and applicable County laws and all Codes and Ordinances of the CITY OF DELRAY BEACH as amended from time to time, and that exist at the time of building permit issuance. b. For SERVICE AUTHORIZATIONS involving work under Federal or State Grantors or Approving Agencies, the CITY and the CONSULTANT shall review and approve the applicable required provisions or any other supplemental provisions as may be included in each SERVICE AUTHORIZATIONS. U. Jurisdiction, Venue: The CONSULTANT hereby covenants, consents and yields to the jurisdiction of the State Civil Courts of Palrn Beach County, Florida. Any dispute between CONSULTANT and the CITY shall be governed by the laws of Florida with venue in Palm Beach County, V. Internal Dispute Between Owner and Consultant: The City Manager shall be the final decision maker regarding internal disputes between CITY and CONSULTANT. W. Extent of Agreement: This AGREEMENT represents the entire integrated AGREEMENT between the CITY and the CONSULTANT and supersedes all prior negotiations, representations or AGREEMENTS, written or oral. This AGREEMENT does not entitle the CONSULTANT to receive any fee unless first being issued a. Service Authorization. This AGREEMENT does not provide that a CONSULTANT is entitled to receive any Service Authorization. This AGREEMENT may not be amended, changed, modified, or otherwise altered in any way, at any time after the execution hereof, except by approval of the CITY Commission. IN WITNESS WHEREOF, the CITY has caused these presents to be executed in its name by its Mayor, and attested and its official Seal to be hereunto affixed by its CITY Clerk, and the CONSULTANT has hereunto set its hand and Seal the day and year first written above. ATTEST: City Clerk Approved as to Form: CITY Attorney CITY OF QF AR A Y BEACH, LORIDA B` A y MAYOR CONSULTANT R.J. Behar & Company, Inc. Robert J. Behar, P.E. Witness Title: President /CEO Name Printed David Romano, P.E. Name Printed ACKNOWLEDGEMENT IF CORPORATION State of Florida County of Palm Beach BEFORE ME, the foregoing instrument, this 10th day of January , 200 9,3 was acknowledged by Roberti. Behar, P.E., PresidentlCEO , on behalf of the Corporation and said person executed the same freely and voluntarily for the purpose therein expressed. WITNESS my hand and seal in the County and State aforesaid this loth day of January '20013 Notary Public (SEAL) My Commission Expires: UZANNAKADIR y15`t DTIRF,'I: ARAY 13, 2013 °F...... °s uU7Eti�iL� }Ef�'.,�iil 15� �ute�f,!� �fl5lfC &fIC3 ACKNOWLEDGEMENT IF AN INDIVIDUAL State of Florida County of Palm Beach I HEREBY CERTIFY that on this date before me, an officer duly authorized in the state and county named above to take acknowledgments, personally appeared , known to me to be the person in and who executed the foregoing instrument, and acknowledged before me that he /she executed the same. SWORN TO AND SUBSCRIBED before me this day of , 200 . Notary Public My Commission Expires: ACKNOWLEDGEMENT IF A PARTNERSHIP State of Florida County of Palm Beach I HEREBY CERTIFY that on this date before me, an officer duly authorized in the state and county named above to take acknowledgments, personally appeared known to me to be the person in and who executed the foregoing instrument as a partner of , a partnership. He /She acknowledged before that he /she executed the same as the act and deed of said partnership for the uses and purposes therein mentioned. SWORN TO AND SUBSCRIBED before me this day of , 200 . Notary Public My Commission Expires: Exhibit A Prdjact Na t c: Canstnxtlon Ertgineer€ng and rntpett an Servica; IEFP No. 211113Z Praechlumher: R,J_Be i f Company, Inc, ..Client: Gt of tTa €r Beach...:' n i rt e c r s P a n ft Q r s :. Cif StarlTfnSC: :,- 3!4/2013 end3imes 6122/201] CommuoiaMaorat €ow 70: JCjlendaOqs Total tluratien JCHendarOnv. Cadeadkt Monthtr. Y"d$'. rdt4nihS The Senior Project EI%gtneer will be committed and charging approximately 4 to 6 hAyrs pet Week €I•e. 20.t€ %), and will be the project manager and lead engineer for the protect. The Quality ASSHragk e Quality Control Manager {QA /QQ wig perform internal audits aF the project at the 30%, 60N, 90%, and 100% intervals {€.e 4 audits total. approximately 16 hours or roughly 2 days per each, for a total of 66 manhours. The Project Administrator will be In charge of the day to day work operations, and committed fuE -time to the project (i.e. 30 to alb hours per week). The Resident Compfrance Specialist will be committed approximately 40% to 50Y, 10 the project, which translates to 16, 20 hours per week. The Senior Ospectorand the roadway inspector will Committed full time on this project JLe, 40 hours per week), phased in and out according to the active construction) EXHIBIT B SAMPLE INVOICE City of Delray Beach. Project No. Date Purchase Order No. Client Ref. No. Task Order No. Invoice No. Description of services under Task Order # . Period ending: Class Em llooyee Name Rate Hours Amount Subtotal Labor SUBCONSULTANTS EXPENSES Computer Word Processing Auto Rental Postage /Freight Air Transportation Print /Reprographics Supplies Subtotal Expenses TOTAL AMOUNT DUE THIS INVOICE $ COST SUMMARY Phase X Contract Amount Amount Earned This Period Amount Previously Earned EXHIBIT B (page 2) SAMPLE -- COST NOT TO EXCEED FORMAT Amount Remaining INVOICE EXHIBIT "C" CONSTRUCTION ENGINEERING AND INSPECTION SCOPE OF SERVICES FOR Project Description: Federal Highway Beautification from South of 10th Street to North of George Bush Boulevard Financial Project ID(s): 420412- 1 -58 -01 & 420412- 2 -58 -01 TABLE OF CONTENTS 1.0 PURPOSE ..................................................................................................... ............................... A -1 2.0 SCOPE ...................................................................... ............................... . ............................... A -1 3.0 LENGTH OF SERVICE .............................................................................. ............................... A -1 4.0 DEFINITIONS ............................................................... ............................................................ A-2 5.0 ITEMS TO BE FURNISHED BY THE CITY TO CONSULTANT ....... ............................... A -3 6A ITEMS FURNISHED BY THE CONSULTANT ...................................... ............................... A -3 6.1 CITY DOCUMENTS ..................................................................... ............................... ................. A -3 6.2 FIELD OFFI CE .............................................................................................. ............................... A -3 6.3 VT- .x1CLES ................................................................................................... ............................... A -3 6.4 FIELD EQUIPMENT ...................................................................................... ............................... A -4 6.5 LICENSING FOR EQUIPMENT OPERATIONS .................................................. ............................... A-4 7.0 LIAISON ....................................................................................................... ............................... A -4 8.0 PERFORMANCE OF THE CONSULTANT ............................................ ............................... A -4 9.0 REQUIREMENTS ....................................................................................... ............................... A -5 9.1 GENERA[ ..................................................................................................... ............................... A -5 9.2 SURVEY CONTROL ...................................................................................... ............................... A -6 9.3 ON -SITE INSPECTION ................................................................................... ............................... A -6 9.4 SAMPLING AND TESTING ............................................................................. ............................... A -6 9.5 ENGINEERING SERVICES ............................................................................. ............................... A -7 9.6 UTILITY COORDINATION ............................................................................. ............................... A -9 10.0 PERSONNEL ............................................................................................. ............................... A -10 10.1 GENERAL REQUIREMENTS ........................................................................ ............................... A -10 10.2 PERSONNEL QUALIFICATIONS ................................................................... ............................... A -10 10.3 STAFFI NG .................................................................................................. ............................... A -16 11.0 QUALITY ASSURANCE PROGRAM .................................................... ............................... A -17 11.1 QUALITY REVIEWS ................................................................................... ............................... A -17 11.2 QA PLAN .................................................................................................. ............................... A -17 11.3 QUALITY RECORDS ................................................................................... ............................... A -18 12.0 CERTIFICATION OF FINAL ESTIMATES ......................................... ............................... A -18 12.1 FINAL ESTIMATE AND AS -BUILT PLANS SU13MITTAL ................................ ............................... A -18 12.2 CERTTFTCATION ........................ ............................... _.............................. ............................... A -18 12.2 OFFER OF FINAL PAYMENT ....................................................................... ............................... A -18 13.0 AGREEMENT MANAGEMENT ............................................................. ............................... A -19 13.1 GENERAL .................................................................................................. ............................... A -19 13.2 INVOICING INSTRUCTIONS ........................................................................ ............................... A -19 14.0 SUBCONSULTANT SERVICES .............................................................. ............................... A -20 15.0 OTHER SERVICES ................................................................................... ............................... A -20 16.0 POST CONSTRUCTION CLAIMS REVIEWV ........................................ ............................... A -20 17.0 CONTRADICTIONS ..................................................................................... ...........................A -21 18.0 THIRD PARTY BENEFICIARY ............................................................. ............................... A -21 19.0 CITY AUTHORITY .................................................................................. ............................... A -21 Financial Project ID (s): 420412- 1 -58 -01 & 420412- 2 -58 -01 SCOPE OF SERVICES CONSTRUCTION ENGINEERING AND INSPECTION L0 PURPOSE: This scope of services describes and defines the Construction Engineering and Inspection (CEI) services which are required for contract administration, inspection, and materials sampling and testing for the construction project listed below. 2.0 SCOPE: The Consultant shall be responsible for providing services as defined in this Scope of Services, the referenced FDOT manuals, and procedures. The projects for which the services are required are: Financial Project IDs: 420412- 1 -58 -01 & 420412- 2 -58 -01 Descriptions: Federal Highway Beautification from South of 10th Street to North of George Bush Boulevard County: Patin Beach The Consultant shall exercise their independent professional judgment in performing their obligations and responsibilities under this Agreement. Pursuant to Section 4.1.4 of the Construction Project Administration Manual (CPAM), the authority of the Consultant's lead person, such as the Senior Project Engineer, and the Consultant's Project Administrator shall be identical to the FDOT's Resident Engineer and Project Administrator respectively and shall be interpreted as such. Services provided by the Consultant shall comply with FDOT manuals, procedures, and memorandums in effect as of the date of execution of the Agreement unless otherwise directed in writing by the City. Such FDOT manuals, procedures, and memorandums are found at the State Construction Office's website. On a single Construction Contract, it is a conflict of interest for a professional firm to receive compensation from both the City and the Contractor either directly or indirectly. 3.0 LENGTH OF SERVICE: The Consultant's services for each Construction Contract shall begin upon written notification to proceed by the City. The Consultant Senior Project Engineer will track the execution of the Construction Contract such that the Consultant is given timely authorization to begin work. While no personnel shall be assigned until written notification by the City has been issued, the Consultant shall be ready to assign personnel within two weeks of notification. For the duration of the project, the Consultant shall coordinate closely with the City and Contractor to minimize rescheduling of Consultant activities due to construction delays or changes in scheduling of Contractor activities. Stage I, II or III A -1 Date Financial Project ID (s): 420412- 1 -58 -01 & 420412- 2 -58 -01 The anticipated letting schedules and co- 2nstruction times for the projects are tabulated below: Construction Contract Estimate Financial Letting Date Start Date Duration Project ID (MolDaylYr) (Mo/Day/Yr) (Days) _ 420412 -1 -58- 5 -20 -2012 TBD 790 01 &420412 -2- 58-01 4.0 DEFINITIONS: A. District Construction Engineer: The administrative head of the District's Construction Offices. B. District Contract Compliance Manner: The administrative head of the District Contract Compliance Office, C. Resident Engineer: The Engineer assigned to a particular County or area to administer Construction Contracts for the Department. D. Construction Project Manager: The City employee assigned to manage the Construction Engineering and Inspection Contract and represent the City during the performmance of the services covered under this Agreement. E. En ineer of Record. The Engineer noted on the Construction plans as the responsible person for the design and preparation of the plans. F. Consultant: The Consulting firm under contract to the City for administration of Construction Engineering and Inspection services. G. Agreement: The Professional Services Agreement between the City and the Consultant setting forth the obligations of the parties thereto, including but not limited to the performance of the work, furnishing of services, and the basis of payment. H. Consultant Senior Project Engineer: The Engineer assigned by the Consultant to be in charge of providing Construction Contract administration for one or more Construction Projects. This person may supervise other Consultant employees and act as the lead Engineer for the Consultant. 1. Consultant Project Administrator: The employee assigned by the Consultant to be in charge of providing Construction Contract administration services for one or more Construction Projects. J. Resident Compliance Specialist: The employee assigned by the Consultant to oversee project specific compliance functions_ Stage I, 11 or III A -2 Date Financial Project ID (s): 420412- 1 -58 -01 & 420412- 2 -58 -01 K. Contractor: The individual, firm, or company contracting with the City for performance of work or famishing of materials. L. Construction Contract: The written agreement between the City and the Contrac- tor setting forth the obligations of the parties thereto, including but not limited to the performance of the work, furnishing of labor and materials, and the basis of payment. 5.0 ITEMS TO BE FURNISHED BY THE CITY TO CONSULTANT: A. The City, on as needed basis, will furnish the following Construction Contract documents for each project. These documents may be provided in either paper or electronic format. 1. Construction Plans, 2. Special Provisions, 3. Copy of the Executed Construction Contract, and 4. Utility Agency's Approved Material List (if applicable). 6.0 ITEMS FURNISHED BY THE CONSULTANT: 6.1 City Documents: All applicable FDOT documents referenced herein shall be a condition of this Agreement. All FDOT documents, directives, procedures, and standard forms are available through the FDOT's Internet website. Most items can be purchased through the following address. All others can be acquired through the District Office or on -line at FDOT's website. Florida Departanent of Transportation Maps and Publication Sales 605 Suwannee Street, MS 12 Tallahassee, Florida 32399 -0450 Telephone No. (850) 488 -9220 6.2 Field Office: The Consultant shall provide a field office with sufficient room and furnishings to effectively carry out their responsibilities under this Scope of Services. Routine expenses for operation of the office, such as stamps, postage costs, custodial fees, telephone service, etc., will be the responsibility of the Consultant and will not be compensated by the City. 6.3 Vehicles: Vehicles will be equipped with appropriate safety equipment and must be able to effectively carry out requirements of this Agreement. Vehicles shall have the Stage 1,11 or III A -3 Date Financial Project ID (s): 420412- 1 -58 -01 & 420412- 2 -58 -01 naive and phone number of the consulting firm visibly displayed on both sides of the vehicle. 6.4 Field Equipment: The Consultant shall supply survey, inspection and testing equipment, essential in order to carry out the work under this Agreement. Such equipment includes those non - consumable and non - expendable items, which are normally needed for a CEI project and are essential in order to carry out the work under this Agreement. Hard hats shall have the name of the consulting firm visibly displayed. Equipment described herein and expendable materials under this Agreement will remain the property of the Consultant and shall be removed at completion of the work. The Consultant's handling of nuclear density gauges shall be in compliance with their license. The Consultant shall retain responsibility for risk of loss or damage to said equipment during performance of this Agreement. Field office equipment shall be maintained and in operational condition at all times. 6.5 Licensing for Equipment Operations: The Consultant will be responsible for obtaining proper licenses for equipment and personnel operating equipment when licenses are required. The Consultant shall make the license and supporting documents available to the City for verification, upon request. Radioactive Materials License for use of Surface Moisture Density Gauges shall be obtained through the State of Florida Department of Health. 7.0 LIAISON: The Consultant shall keep the Construction Project Manager informed of all significant activities, decisions, correspondence, reports, and other communications related to its responsibilities under this Agreement, and seek input from the Construction Project Manager in order for the Construction Project Manager to oversee the Consultant's performance. Agreement administrative duties relating to Invoice Approval Requests, Personnel Approval Requests, User ID Requests, Time Extension Requests, and Supplemental Amendment Requests shall be reviewed and approved by the Construction Project Manager. 8.0 PERFORMANCE OF THE CONSULTANT: During the term of this Agreement and all supplements thereof, the City will review various phases of Consultant operations, such as construction inspection, materials Stage 1, II or III A -4 Date Financial Project ID (s): 420412- 1 -58 -01 & 420412- 2 -58 -01 sampling and testing, and administrative activities, to determine compliance with this Agreement. The Consultant shall cooperate and assist City representatives in conducting the reviews. If deficiencies are indicated, the Consultant shall implement remedial action immediately upon the approval of the Construction . Project Manager. City recommendations and Consultant responses /actions are to be properly documented by the Senior Project Engineer. No additional compensation shall be allowed for remedial action taken by the Consultant to correct deficiencies. Remedial actions and required response times may include but are not necessarily limited to the following: A. Further subdivide assigned inspection responsibilities, reassign inspection personnel, or assign additional inspection personnel, within one week of notification. B. Replace personnel whose performance has been determined by the City to be inadequate. Personnel whose perfomlance has been determined to be unsatisfactory shall be removed immediately. C. Immediately increase the frequency of monitoring and inspection activities in phases of work that are the Consultant's responsibility. D. Increase the scope and frequency of training of the Consultant personnel. 9.0 REOUIREMENTS: 9.1 General: It shall be the responsibility of the Consultant to administer, monitor, and inspect the Construction Contract such that the project is constructed in reasonable confonnity with the plans, specifications, and special provisions for the Construction Contract. The Consultant shall observe the Contractor's work to determine the progress and quality of work, identify discrepancies, report significant discrepancies to the City, and direct the Contractor to correct such observed discrepancies. All Supplemental Agreements must be detennined to be in accordance with Florida law by the City prior to approval by the Consultant. For any Supplemental Agreement, which exceeds the thresholds, the Consultant shall prepare the Supplemental Agreement as a recommendation to the City, which the City may accept, modify or reject upon review. The Consultant shall consult with the Construction Project Manager, as it deems necessary and shall direct all issues, which exceed its delegated authority to the Construction Project Manager for City action or direction. Stage I, II or III A -5 Date Financial Project ID (s): 420412- 1 -58 -01 & 420412- 2 -58 -01 The Consultant shall advise the Construction Project Manager of any significant omissions, substitutions, defects, and deficiencies noted in the work of the Contractor and the corrective action that has been directed to be perfonned by the Contractor. Work provided by the Consultant shall not relieve the Contractor of responsibility for the satisfactory performance of the Construction Contract. 9.2 Survey Control: 9.3 The Consultant shall check or establish the survey control baseline(s) alon with sufficient baseline control points and bench marks at appropriate intervals alon the project in order to: 1 make and record such measurements as are necessary to calculate and document quantities for pay items 2 make and record re- construction and final cross section surveys of the proiect site in those areas where earthwork i.e. embankment excavation, subsoil excavation, etc.) is mart of the construction project, and 3 perform incidental engineering surveys. On -site Inspection: The Consultant shall monitor the Contractor's on -site construction activities and inspect materials entering into the work in accordance with the plans, specifications, and special provisions for the Construction Contract to determine that the projects are constructed in reasonable conformity with such documents. The City will monitor all off -site activities and fabrication. The Consultant shall keep detailed accurate records of the Contractor's daily operations and of significant events that affect the work, Consultant shall be responsible for monitoring and inspection of Contractor's Work Zone Traffic Control Plan and review of modifications to the Work Zone Traffic Control Plan, including Alternate Work Zone Traffic Control Plan, in accordance with the FDOT's procedures. Consultant employees performing such services shall be qualified in accordance with the FDOT's procedure. 9.4 Sampling and Testing: The Consultant shall perform sampling and testing of component materials and completed work in accordance with the Construction Contract documents. The minimum sampling frequencies set out in the FDOT's Materials Sampling, Testing and Reporting Guide shall be met. In complying with the aforementioned guide, the Consultant shall provide daily surveillance of the Contractor's Quality Control activities at the project site and perform the sampling and testing of materials and completed work items that are normally done in the vicinity of the project for verification and acceptance. The City will perform inspection and sampling of materials and components at locations remote from the vicinity of the project and the City will perform testing of materials normally done in a laboratory remote from the project site. The Consultant shall be specifically responsible for job control samples determining the acceptability of all materials and completed work items on the basis of either test results or verification of a certification, certified mill analysis, DOT label, DOT stamp, etc. Stage I, II or III A -6 Date Financial Project ID (s): 420412- 1 -58 -01 & 420412-2-58-01 The City will monitor the effectiveness of the Consultant's testing procedures through surveillance and obtaining and testing independent assurance samples. Sampling, testing and laboratory methods shall be as required by the FDOT's Standard Specifications, Supplemental Specifications or as modified by the Special Provisions of the Construction Contract. Documentation reports on sampling and testing performed by the Consultant shall be submitted to responsible parties during the same week that the construction work is done. 9.5 En ineerin Services: The Consultant shall coordinate the Construction Contract administration activities of all parties other than the Contractor involved in completing the construction project. Notwithstanding the above, the Consultant is not liable to the City for failure of such parties to follow written direction issued by the Consultant. Services include maintaining the required level of surveillance of Contractor activities, interpreting plans, specifications, and special provisions for the Construction Contract, maintaining complete, accurate records of all activities and events relating to the project, and properly documenting all significant project changes. The Consultant shall perforrn the following services: (1) Schedule and attend, within ten (10) days after the Notice to Proceed, a pre - service conference for the project in accordance with City's procedure. The Consultant shall provide appropriate staff to attend and participate in the pre - service meeting. The Consultant shall record a complete and concise record of the proceedings of the pre - service meeting and distribute copies of this summary to the participants and other interested parties within seven (7) days. The Consultant shall submit Action Request packages for Personnel Approval for immediate staff needs and a copy /computer file of the final negotiated staffing to the Construction Project Manager, either at this meeting or within seven (7) days. (2) Verify that the Contractor is conducting inspections, preparing reports and monitoring all storm water pollution prevention measures associated with the project. For each project that requires the use of the NPDES General Permit, provide at least one inspector who has successfully completed the "Florida. Storm water, Erosion, and Sedimentation Control Training and Certification Program for Inspectors and Contractors ". The Consultant's inspector will be familiar with the requirements set forth in the FEDERAL REGISTER, Vol. 57, No, 187, Friday, September 5, I992, pages 4412 to 4435 "Final NPDES General Pen-nits for Storm water Discharges from Construction Sites" and guidelines developed by FDOT. Stage 1, 11 or III A -7 Date Financial Project ID (s): 420412- 1 -58 -01 & 420412- 2 -58 -01 (3) Analyze problems that arise on a project and proposals submitted by the Contractor, work to resolve such issues, and process the necessary paperwork. (4) Monitor, inspect and document utility construction for conformance with Utility Agency's Water and Sewer Standards and the Utility Agency's Approved Materials List. Facilitate coordination and communication between Utility Agency's representatives, City's staff and contractors in execution of the work. Identify potential utility conflicts and assist in the resolution of utility issues. (5) Produce reports, verify quantity calculations and field measure for payment purposes as needed to prevent delays in Contractor operations and to facilitate prompt processing of such information in order for the City to make timely payment to the Contractor. (6) Monitor each Contractor and subcontractor's compliance with specifications and special provisions of the Construction Contract in regard to payment of predetermined wage rates in accordance with FDOT procedures. (7) Provide a Resident Compliance Specialist for surveillance of the Contractor's compliance with Construction Contract requirements. The Resident Compliance Specialist is responsible for reviewing, monitoring, evaluating and acting upon documentation required for Construction Contract compliance, and maintaining the appropriate files thereof Typical areas of compliance responsibility include EEO Affirmative Actions for the prime contractor and subcontractor, DBE Affirmative Action, Contractor Formal Training, Payroll, and Subcontracts. The Resident Compliance Specialist must keep all related documents and correspondence accurate and up to date; attend all compliance reviews and furnish the complete project files for review; and assist the District Contract Compliance Manager as requested. (8) The City will provide Public Infornation Services. (9) Prepare and submit to the Construction Project Manager monthly, a Construction Status Reporting System (CSRS) report, in a format to be provided by the City. (10) Video tape the pre - construction conditions throughout the project limits. Provide a digital photo log or video of project activities, with heavy emphasis on potential claim items /issues and on areas of real /potential public controversy. (11) The Consultant shall have a digital camera for photographic documentation of pre - construction state and of noteworthy incidents or events during construction. Stage I, 11 or III A -8 Date Financial Project ID (s): 420412- 1 -58 -01 & 420412- 2- 58 -01. These photographs will be filed and maintained on the Consultant's computer using the LYNX Digital Photo Management system or equivalent. Copies of photographs will be electronically transferred to the CPM at an interval deterinined by the Senior Project Engineer and the Construction Project Manager. The taking of the photographs shall begin the day prior to the start of construction and continue regularly throughout this project. Photographs shall be taken the days of Conditional, Partial and Final Acceptance. 9.6 Utility Coordination: It shall be the responsibility of the Consultant to monitor utility coordination such that it is in reasonable conformance to Plans and City and FDOT standards, policies, procedures, and design criteria. The Department's Standards, policies, procedures, and design criteria are contained in the current adopted Design Standards, Standard Specifications for Road and Bridge Construction, Rule 14- 46.001 (Utility Accommodation Manual), Utility User's Guide, and any Supplemental Specification, Provision, or Agreement. The Consultant may employ more than one individual or utility engineering consultant to provide utility coordination. However, the Consultant shall employ and identify a single full time dedicated person responsible for managing all utility coordination. This person shall be contractually referred to as the Utility Coordinator and shall be identified in the Consultant's proposal. The Utility Coordinator shall be responsible for, but not limited to, the following: 1. Making sure Utility Coordination is conducted in accordance to the City and FDOT standards, policies, procedures, and design criteria. 2. Scheduling utility meetings, keeping and distribution of minutes of all utility meetings, and ensuring expedient follow -up on all unresolved issues. 3. Distributing all plans, conflict matrixes and changes to affected utility owners and making sure this information is properly coordinated. 4. Identifying and coordinating the completion of any Department or utility owner agreement that is required for reimbursement, or accommodation of the utility facilities associated with the construction project. 5. Assisting the Engineer of Record and the Contractor with resolving utility conflicts. 6. Reviewing of all Utility Work Schedules. 7. Handling reimbursable issues inclusive of bettennent and salvage determination. Stage I, Il or III A -9 Date Financial Project ID (s): 420412- 1 -58 -01 & 420412- 2 -58 -01 10.0 PERSONNEL: 101 General Requirements: The Consultant shall staff the project with the qualified personnel necessary to efficiently and effectively carry out its responsibilities under this Agreement. Method of compensation for personnel assigned to this project is outlined in Exhibit "B." Unless otherwise agreed by the City, the City will not compensate straight overtime or premium overtime for the positions of Senior Project Engineer, Project Administrator, Contract Support Specialist, and Associate Contract Support Specialist, 10.2 Personnel Qualifications: The Consultant shall utilize only competent personnel, qualified by experience, and education. The Consultant shall submit in writing to the Construction Project Manager the names of personnel proposed for assignment to the project, including a detailed resume for each containing at a minimum salary, education, and experience. The Consultant Action Request form for personnel approval shall be submitted to the Construction Project Manager at least two weeks prior to the date an individual is to report to work. Personnel identified in the Consultant technical proposal are to be assigned as proposed and are committed to performing services under this Agreement. Personnel changes will require written approval from City. Staff that has been removed shall be replaced by the Consultant within one week of City notification. Before the project begins, all project staff shall have a working knowledge of the current CPAM and must possess all the necessary qualifications /certifications for obtaining the duties of the position they hold. Cross training of the Consultant's project staff is highly recommended to achieve a knowledgeable and versatile project inspection team but shall not be at any additional cost to the City and should occur as workload pennits. Visit the training page on the State Construction Office website for training dates. Minimum qualifications for the Consultant personnel are set forth as follows. Exceptions to these minimum qualifications will be considered on an individual basis. However, a Project Administrator working under the supervision and direction of a Senior Project Engineer or an Inspector working under the supervision and direction of a Senior Inspector shall have six months from the date of hire to obtain the necessary qualifications /certifications provided, all other requirements for such positions are met and the Consultant submits a training plan detailing when such qualifications /certifications will be obtained and other training to familiarize with FDOT's procedures, Specifications and Design Standards. The District Construction Engineer or designee will have the final approval authority on such exceptions. Stage I, 11 or III A -10 Date Financial Project ID (s): 420412- 1 -58 -01 & 420412- 2 -58 -01 SENIOR PROJECT ENGINEER - A Civil Engineer degree and be registered in the State of Florida as a. Professional Engineer (or if registered in another state, the ability to obtain registration in the State of Florida within six months) and six (6) years of engineering experience [(two (2) years of which are in major road or bridge construction)] or [(five (5) of which are in major bridge construction) - for Complex Bridge Projects], or for non - degreed personnel the aforementioned registration and ten (10) years of engineering experience (two (2) years of which are in major road or bridge construction). Qualifications include the ability to communicate effectively in English (verbally and in writing); direct highly complex and specialized construction engineering administration and inspection program; plans and organizes the work of subordinate and staff members; develops and/or reviews policies, methods, practices, and procedures; and reviews programs for conformance with FDOT standards. Also must have the following: Qualification: FDOT Advanced MOT Pass the CTQP examination covering the training video "Grouting of Bridge Post - tensioning Tendons" (If applicable) Attend the CTQP Quality Control Manager course and pass the examination. Certifications: None A Master's Degree in Engineering may be substituted for one (1) year engineering experience. PROJECT ADMINISTRATOR - A Civil Engineering degree plus two (2) years of engineering experience in construction of major road or bridge structures, or for non- degreed personnel eight (8) years of responsible and related engineering experience, two (2) years of which involved construction of major road or bridge structures with the exception of Complex Category 2 (CC2) bridge structures. For CC2 bridge structures, be a registered professional engineer in the State of Florida (or if registered in another state, have the ability to obtain registration in Florida within six (6) months) and have a Civil Engineering degree plus five (5) years, or be non- registered with eight (8) years, of general bridge construction experience of which two (2) years for registered project administrators, or four (4) years for non- registered project administrators, must have been with the type of CC2 bridge construction project for which CEI services are being provided by this scope. Additionally, a minimum of twelve (12) months of experience as the Project Administrator in primary control of the type of CC2 construction project for which CEI services are being provided by this scope. To be in primary control, a Project Administrator must have supervised two or more inspectors as well as two or more support staff (Office Manager, Compliance Officer, and Secretary) and must have been directly responsible for all CEI services assigned. CPTS years of experience must have included a minimum of twelve (12) months experience in each of the following areas: (1) casting yard operations Stage 1, 1I or III A -11 Date Financial Project ID (s): 420412- 1 -58 -01 & 420412- 2 -58 -01 and related surveying; (2) segment erection and related surveying, post - tensioning (PT) of tendons and grouting of prestressing steel. CPTCB years of experience must include monitoring of the following: girder erection, safe use of girder erection cranes, stabilization of girders after erection, false work for temporary girder support, and PT and grouting operations. MB years of experience must have been in MB mechanical and /or electrical construction. Receives general instructions regarding assignments and is expected to exercise initiative and independent judgment in the solution of work problems. Directs and assigns specific tasks to inspectors and assists in all phases of the construction project. Will be responsible for the progress and final estimates throughout the construction project duration. Must have the following: Qualifications: FDOT Intermediate MOT Pass the CTQP examination covering the training video "Grouting of Bridge Post - tensioning Tendons" (If applicable) CTQP Final Estimates Level 11 Certifications: SSPC course: C -3 Supervisor /Competent Person Training for Deleading of Industrial Structures (If applicable) Other: Attend CTQP Quality Control Manager Course and pass the examination. A Master's Degree in Engineering may be substituted for one (1) year of engineering experience CONTRACT SUPPORT SPECIALIST - A High School diploma or equivalent and four (4) years of road & bridge construction engineering inspection (CEI) experience having performed /assisted in project related duties (i.e., CQR/LIMS, progress and final estimates, EEO compliance, processing Construction Contract changes, etc.) or a Civil Engineering. Should exercise independent judgment in planning work details and making technical decisions related to the office aspects of the project. Should be familiar with the FDOT's Procedures covering the project related duties as stated above and be proficient in the computer programs necessary to perform these duties. Shall become proficient in Multi -Line and Engineering Menu. Qualifications: CTQP Final Estimates Level 11 ASSOCIATE CONTRACT SUPPORT SPECIALIST - High school graduate or equivalent plus three (3) years of secretarial and /or clerical experience including two (2) years experience in construction office management having performed project related duties (i.e., CQR, progress and final estimates, EEO compliance, processing Construction Contract changes, etc.). Ability to type at a Stage 1,11 or III A -12 Date Financial Project ID (s): 420412- 1 -58 -01 & 420412-2-58-01 rate of 35 correct, words per minute. Experienced in the use of standard word processing software. Should exercise independent initiative to help relieve the supervisor of clerical detail. Assists the Project Achninistrator in office related duties (i.e., CQR, progress, and final estimates, EEO compliance, Processing Construction Contract changes, etc.) Project specific. Work under the general supervision of the Senior Project Engineer and staff, Note: This position will not be used if a Contract Support Specialist is utilized. RESIDENT COMPLIANCE SPECIALIST - Graduation from an accredited high school or equivalent with one (1) year of experience as a resident compliance officer on a construction project or two (2) years of assisting the compliance officer in monitoring the project. Should have prior experience in both State funded and Federal Aid funded construction projects with MOT and knowledge of EEO /AA laws and FDOT's DBE and OJT programs. Ability to analyze, collect, evaluates data, and take appropriate action when necessary. Must attend all training workshops or meetings for Resident Compliance Specialists as determined necessary. SENIOR INSPECTORISENIOR ENGINEER INTERN — High school graduate or equivalent plus four (4) years of experience in construction inspection, two (2) years of which shall have been in bridge and /or roadway construction inspection with the exception of Complex Category 2 (CC2) bridge structures. For CC2 bridge structures, be a high school graduate or equivalent and have five (5) years of general bridge construction experience of which two (2) years must have been with the type of CC2 bridge construction project for which CEI services are being provided by this scope. Additionally, a minimum of twelve (12) months of experience as the Senior Inspector in primary control of the type CC2 construction project for which CEI services are being provided by this scope. To be in primary control, a Senior Inspector must have supervised two or more inspectors and must have been directly responsible for all inspection requirements related to the construction operations assigned. CPTS years of experience must have included a minimum of twelve (12) months of inspection experience in one or both of the following depending on which area the inspector is being approved for: (1) casting yard inspection; (2) erection inspection. In addition, two (2) years of geometry- control surveying experience is required for inspectors that perform or monitor geometry control surveying in a casting yard. CPTCB years of experience must include monitoring and inspection of the following: girder erection, safe use of girder erection cranes, girder stabilization after erection, false work for temporary girder support, and PT and grouting operations. MB years of experience must have included the inspection of MB mechanical components for machinery inspectors and MB electrical components /systems for electrical inspectors. Must have the following: Qualifications: Stage I, II or III A -13 Date Financial Project ID (s): 420412- 1 -58 -01 & 420412- 2 -58 -01 CTQP Concrete Field Inspector Level I CTQP Concrete Transportation Construction Inspector (CTCI) Level II (all bridges) CTQP Asphalt Roadway Level I (If applicable) CTQP Asphalt Roadway Level II (If applicable) CTQP Earthwork Construction Inspection Level I CTQP Earthwork Construction Inspection Level II CTQP Pile Driving Inspection (If applicable) CTQP Drilled Shaft Inspection (If applicable — required for inspection of all drilled shafts including miscellaneous structures such as Sign structures, Lighting structures, and Traffic Signal structures) CTQP Grouting Technician Level I (If applicable) CTQP Post - Tensioning Technician Level I (If applicable) FDOT Intermediate MOT CTQP Final Estimates Level I Certifications: Nuclear Radiation Safety SSPC course: C -3 Supervisor /Competent Person Training for Deleading of Industrial Structures (If applicable) or a Civil Engineering degree and one (1) year of road & bridge CEI experience with the ability to earn additional required qualifications within one year. (Note: Senior Engineer Intent classification requires one (1) year experience as an Engineer Intern.) Responsible for performing highly complex technical assignments in field surveying and construction layout, making, and checking engineering computations, inspecting construction work, and conducting field tests and is responsible for coordinating and managing the lower Level inspectors. Work is performed under the general supervision of the Project Administrator, INSPECTOR/ENGINEER INTERN - High school graduate or equivalent plus two (2) years experience in construction inspection, one (1) year of which shall have been in bridge and /or roadway construction inspection, plus the following: Qualifications: CTQP Concrete Field Inspector Level I CTQP Asphalt Roadway Level I (If applicable) CTQP Earthwork Construction Inspection Level I CTQP Pile Driving Inspection (If applicable) CTQP Drilled Shaft Inspection (If applicable— required for inspection of all drilled shafts including miscellaneous structures such as Sign structures, Lighting structures, and Traffic Signal structures) CTQP Final Estimates Level I Certifications: Nuclear Radiation Safety Stage I, II or III A -14 Date Financial Project ID (s): 420412-1-58-01 & 420412- 2 -58 -01 Or a Civil Engineering degree with the ability to earn additional required qualifications within one year. (Note: Engineer Intern classification requires E.I.T. certificate.) Responsible for performing assignments in assisting Senior Inspector in the performance of their duties. Receive general supervision from the Senior Inspector who reviews work while in progress. Civil Engineering graduates must obtain certifications within the first year of.working as an inspector or Engineer Intern. Exceptions will be permitted on a case -by -case basis so long as qualifications and certifications are appropriate for specific inspection duties. ASPHALT PLANT INSPECTOR - High School graduate or equivalent plus one (1) year experience in the surveillance and inspection of hot mix asphalt plant operations and the following: Qualifications: CTQP Asphalt Plant Level I CTQP Asphalt Plant Level 11 CTQP Final Estimates Level I Certifications: None INSPECTORS AIDE - High School graduate or equivalent and able to perform basic mathematical calculation and follow simple technical instructions. Duties are to assist higher -level inspectors. SURVEY PARTY CHIEF - High School graduate plus four years of experience in construction surveying (including two (2) years as Party Chief). Experienced in field engineering and construction layout, making and checking survey computations and supervising a survey party. Work is performed under general supervision of Project Administrator. INSTRUMENT -MAN - High school graduate plus three (3) years of experience in construction surveying one (1) year of which shall have been as instrument -man. Responsible for performing assignments in assisting Party Chief in the performance of their duties. Receives general supervision from Party Chief who reviews work while in progress. ROD - MAN /CHAIN -MAN - High school graduate with some survey experience or training preferred. Receives supervision from and assists Party Chief who reviews work while in progress. SECRETARY /CLERK TYPIST - High school graduate or equivalent plus two (2) years of secretarial and /or clerical experience. Ability to type at a rate of 35 correct words per minute. Experienced in the use of standard word processing software. Should exercise independent initiative to help relieve the supervisor of clerical detail. Work under general supervision of the Senior Project Engineer and their staff. Stage 1, 11 or III A -15 Date Financial Project ID (s): 420412- 1 -58 -01 & 420412- 2 -58 -01 ENVIRONMENTAL SPECIALIST - A bachelors degree with a major in one of the physical or natural sciences or engineering and two (2) years of professional experience in environmental protection, regulation or health; one of the physical or natural sciences; or engineering; or a Masters degree in one of the physical or natural sciences or .engineering and one (1) year of professional experience described above; or a Doctorate degree in one of the physical of natural sciences or engineering or one (1) year of experience as an Environmental Specialist I with the State Of Florida. Receives general instruction regarding assignments and is expected to exercise initiative, and independent judgment in the solution of work problems. Must have knowledge of the terminology, principles, data collection, and analytical techniques and procedures of the physical or natural sciences. Also must have ability to collect, evaluate, analyze, and interpret scientific or technical data. CASTING YARD ENGINEER/MANAGER - CONCRETE POST - TENSIONED SEGMENTAL_ BOX GIRDER BRIDGES „(CPTS) - Be a registered Professional Engineer in the State of Florida (or if registered in another state, have the ability to obtain registration in Florida within 6 months) with a minimum of one (1) year, or non - registered with a minimum of three (3) years, of experience with the use of geometry control computer programs and with the perfonnance of surveying procedures required for the production of precast concrete box segments at a casting yard. UTILITY COORDINATOR - High school graduate or equivalent and be knowledgeable of FDOT's Standards, policies, procedures, and agreements and shall have a minimum of 4 years of experience performing utility coordination in accordance with FDOT's Standards, policies, procedures, and agreements. 10.3 Staffing: Once authorized, the Consultant shall establish and maintain an appropriate staff through the duration of construction and completion of the final estimate. Responsible personnel, thoroughly familiar with all aspects of construction and final measurements of the various pay items, shall be available to resolve disputed final pay quantities until the appropriate Construction Contract has been paid off. Construction engineering and inspection forces will be required of the Consultant at all times while the Contractor is working. If Contractor operations are substantially reduced or suspended, the Consultant will reduce its staff appropriately. In the event that the suspension of Contractor operations requires the removal of Consultant forces from the project, the Consultant will be allowed ten (10) days maximum to demobilize, relocate, or tenninate such forces. Stage I,11 or III A -16 Date Financial Project ID (s): 4204I2- 1 -58 -01 & 420412- 2 -58 -01 11.0 QUALITY ASSURANCE (QA) PROGRAM: 11.1 Quality Reviews: The CCEI shall perform an initial QA review within the first two (2) months of the start of construction. On asphalt projects, the CCEI shall perform an initial QA review on its asphalt inspection staff after the Contractor has completed ten (10) full work days of mainline asphalt paving operations, or 25% of the asphalt pay item amount (whichever is less) to validate that all sampling, testing, inspection, and documentation are occurring as required of the CCEI staff. 11.2 OA Plan: Within thirty (30) days after receiving award of an Agreement, the Consultant shall furnish a QA Plan to the Construction Project Manager. The QA Plan shall detail the procedures, evaluation criteria, and instructions of the Consultant's organization for providing services pursuant to this Agreement. Unless specifically waived, no payment shall be made until the -City approves the Consultant QA Plan. Significant changes to the work requirements may require the Consultant to revise the QA Plan. It shall be the responsibility of the Consultant to keep the plan current with the work requirements. The Plan shall include, but not be Iiinited to, the following areas: A. Organization: A description is required of the Consultant QA Organization and its functional relationship to the part of the organization performing the work under the Agreement. The authority, responsibilities and autonomy of the QA organization shall be detailed as well as the names and qualifications of personnel in the quality control organization. B. Quality Reviews: The Consultant QA shall detail the methods used to monitor and achieve organization compliance with Agreement requirements for services and products. C. Quality Records: The Consultant will outline the types of records, which will be generated and maintained during the execution of his QA program. D. Control of Sub - consultants and Vendors: The Consultant will detail the methods used to control sub - consultants and vendor quality. Stage I, II or III A -17 Date Financial Project ID (s): 420412- I -58 -01 & 420412- 2 -58 -01 E. Quality Assurance Certification: An officer of the Consultant firm shall certify that the inspection and documentation was done in accordance with FDOT specifications, plans, standard indexes, and FDOT procedures. 11.3 Quality Records: The Consultant shall maintain adequate records of the quality assurance actions performed by his organization (including subcontractors and vendors) in providing services and products under this Agreement. All records shall indicate the nature and number of observations made, the number and type of deficiencies found, and the corrective actions taken. These records shall be available to the City, upon request, during the Agreement term. All records shall be kept at the primary job site and shall be subject to audit review. 12.0 CERTIFICATION OF FINAL ESTIMATES: 12.1 Final Estimate and As -Built Plans Submittal: Prepare documentation and records in compliance with the Agreement, Statewide Quality Control (QC) Plan, or Consultant's approved QC Plan and the FDOT's Procedures. Submit the Final Estianate(s) and one (1) set of final "as -built plans" documenting Contractor's work (one record set with two copies) as follows: (a) Within thirty (30) calendar days of final acceptance; or (b) Where all items of work are complete and conditional /partial acceptance is utilized (Lighting, Plant establishment, etc.) for a period exceeding thirty (30) calendar days, the final estimate(s) will be due on the thirtieth (30"') day after conditional /partial acceptance. The Consultant shall be responsible for snaking any revisions to the Certified Final Estimate at no additional cost to the City. 12.2 Certification: Consultant personnel preparing the Certified Final Estimate Package shall be CTQP Final Estimates Level II. Duly authorized representative of the Consultant firm will provide a notarized certification on a form pursuant to FDOT procedures. 12.3 Offer of Final Payment: The Consultant shall prepare the Offer of Final Payment package as outlined in Chapter 14 of the Review and Administration Manual. The package shall accompany the Certified Final Estimates Package submitted to the DFEO. The Stage I, Il or Ill A-18 Date Financial Project ID (s); 420412- 1 -58 -01 & 420412- 2 -58 -01 Consultant shall be responsible for forwarding the Offer of Final Payment Package to the Contractor. 13.0 AGREEMENT MANAGEMENT: 13.1 General: (1) With each monthly invoice submittal, the Consultant Senior Project Engineer will provide a reviewed and approved Status Report for the Agreement. This report will provide the Consultant Senior Project Engineer's accounting of the additional Agreement calendar days allowed to date, an estimate of the additional Agreement calendar days anticipated to be added to the original Agreement schedule time, an esti- mate of the Agreement completion date, and an estimate of the Consultant funds expiration date per Agreement schedule for the prime Consultant and for each sub - consultant. (2) When the Consultant identifies a condition that will require an Amendment Request (AR) to the Agreement, the Consultant Project Principal or Consultant Senior Project Engineer will communicate the need to the Construction Project Manager for an approval in concept. Once received, the Consultant shall prepare and submit the AR, and all accompanying documentation to the Construction Project Manager for approval and further processing. The Consultant shall submit ARs to allow the City 12 weeks to process, approve, and execute the AR. The content and format of the AR and accompanying documentation shall be in accordance with the instructions and forinat to be provided by the City. (3) When the Consultant identifies a condition that will require a Supple- mental Amendment Request (SAR) to the Agreement, the Consultant Project Principal or Consultant Senior Project Engineer will communicate this condition/need to the Construction Project Manager and request approval in concept. Once received, the Consultant shall prepare and submit the SAR, and all accompanying documentation to the Construction Project Manager for approval and further processing. The Consultant shall submit SARs to allow the City 12 weeks to process, approve, and execute the SAR. The content and forinat of the SAR and accompanying documentation shall be in accordance with the instructions and format to be provided by the City. (4) The Consultant Project Principal or Consultant Senior Project Engineer for the project shall be responsible for performing follow -up activities to determine the status of each AR and SAR submitted to the City. 13.2 Invoicing Instructions: Monthly invoices shall be submitted to the City in a format and distribution schedule defined by the City, no later than the 20th day of the following month. Stage I, 11 or 111 A -19 Date Financial Project ID (s): 420412- 1 -58 -01 & 420412- 2 -58 -01 If the Consultant cannot submit their monthly invoice on time, the Consultant shall notify the City, prior to the due date the reason for the delay and the planned submittal date. Once submitted, the Consultant Project Principal or Senior Project Engineer shall notify the Construction Project Manager via e -mail of the total delay in calendar days and the reason(s) for the delay(s). All invoices shall be submitted to the City in electronic and hard copy fonnats in accordance with District Construction and Consultant Invoice Transmittal System (CITS) procedures. The Construction Project Manager must receive hard copy documentation within three (3) workdays of electronic submittal or the electronic submittal will be rejected. (Saturday, Sunday, and City holidays are not considered workdays). A Final Invoice will be submitted to the City no later than the 30"' day following Final Acceptance of the individual project or as requested by the City. 14.0 SUBCONSULTANT SERVICES Upon written approval by the Construction Project Manager and the City, and prior to performance of work, the Consultant may subcontract for engineering surveys, materials testing, or specialized professional services. 15.0 OTHER SERVICES: Upon written authorization by the City or designee, the Consultant will perform additional services in connection with the project not otherwise identified in this Agreement. The following items are not included as part of this Agreement, but may be required by the City to supplement the Consultant services under this Agreement. A. Assist in preparing for arbitration hearings or litigation that occurs during the Agreement time in connection with the construction project covered by this Agreement. B. Provide qualified engineering witnesses and exhibits for any litigation or hearings in connection with the Agreement. C. Provide on- and off -site inspection services in addition to those provided for in this Agreement. 16.0 POST CONSTRUCTION CLAIMS REVIEW: In the event the Contractor submits a claim for additional compensation and /or time after the Consultant has completed this Agreement, the Consultant shall, upon execution by the City and the Consultant of an Amendment to this Agreement providing for compensation for such services, analyze the claim, engage in negotiations leading to settlement of the claim, and prepare and process the required documentation to close out the claim. Compensation for such services will be negotiated and effected through a Supplement to this Agreement. Stage I,11 or III A -20 Date Financial Project ID (s): 420412- 1 -58 -01 & 420412- 2 -58 -01 17.0 CONTRADICTIONS: In the event of a contradiction between the provisions of this Scope of Services and the Consultant's proposal as made a part of their Agreement, the provisions of the Scope of Services shall apply. 18.0 THIRD PARTY BENEFICIARY It is specifically agreed between the parties executing this Agreement that it is not intended by any of the provisions of any part of the Agreement to create in the public or any member thereof, a third party beneficiary hereunder, or to authorize anyone not a party to this Agreement to maintain a claim, cause of action, lien or any other damages or any relief of any kind pursuant to the terms or provisions of this Agreement. 19.0 CITY AUTHORITY The City shall be the final authority in considering contract modification of the Contractor for time, money or any other consideration except matters agreed to by the Contractor through contract changes negotiated by the Consultant, as authorized in Section 9.1 herein Stage 1, I1 or III A -21 Date Kucmerowski, Carolanne From: Lizanna Kadir <Ikadir @rjbehar.com> Sent: Monday, February 11, 2013 10:39 AM To: Kucmerowski, Carolanne Cc: Tack, Tim; David Romano; Robert Behar Subject: RE: RJ Behar Agreement cannot be executed as submitted Attachments: Page 1 from CEI_Agreement.pdf; COI.pdf; Acknowledgement page.pdf Importance: High Good Morning Ms. Kucmerowski, Per your email below, the corrections have made to the General Consulting Services Agreement with the City of Delray Beach. Attached are the following: 1. Corrected page 1 of the Agreement 2. Corrected date on acknowledgement form 3. Certificate of insurance RT Behar gives the City of Delray Beach permission to switch out page 1 with the page 1 that now includes the Consultant name. All originals will follow via LISPS. If there is anything else you need please let me know. Sincerely, �P-a a �Lj. I?eh�-, & CnMp.,ny, I.nc. 6961 9 -AA7 196th AVND d, %ult,! 332 at braI� `Ph)vm rL 3333- -fa: 95T-690-7M I?ar: 9511--680-777 �r�a��: ��dzr�rJbeh�r.e�m PLEASE PRINT ONLY WHEN NECESSARY From: Kucmerowski, Carolanne [ mai Ito: Kucmerowsk @mydelraybeach.coml Sent: Friday, February 08, 2013 4:11 PM To: David Romano Cc: Tack, Tim Subject: RE: RJ Behar Agreement cannot be executed as submitted Importance: High David, This is a follow -up to my phone call. The agreement for General Consulting Services as submitted by RJ Behar cannot be processed for execution by the City of Delray Beach. The following items need to be corrected /submitted: 1. The name of the Consultant must be filled in on the first page. Please fill this in (a blank page 1 is attached); then email back; and in your email state that RJ Behar gives the City of Delray Beach permission to switch out page 1 with the page 1 that includes the Consultant name. 2. The Acknowledgement If Corporation page has 2012 dates; instead of 2013. This sheet needs to be corrected and "3" originals need to be sent. 3. Must supply proof of insurance; to include an Additional Insured Endorsement Page; and the Certificate /s must state in the Description of Operations Section that: The City _of Delray Beach is listed as additional insured. If you have any questions, just let me know. All of the Insurance Documents can be emailed to me. Again, until the above is resolved, the Agreements cannot be executed. I have attached a copy of the agreement with the items marked for your reference. Construction Management Technician City of Delray Beach 434 South Swinton Avenue Delray Beach, F'L 33444 Phone: (561) 243 -7177 Fax: (561) 243 -7060 From: Tack, Tim Sent: Wednesday, February 06, 2013 9: To: Kucmerowski, Carolanne Subject: RJ Behar contact Info for CEI i Carolanne, Below is the contact info for the CEI David G. Romano, P.E. Director of Construction Management Se. R.J. Behar & Company, Inc. 6861 SW 196th Avenue, Suite 302 Pembroke Pines, FL 33332 Office: (954) 680 -7771 Fax: (954) 680 -7781 Mobile: (305) 525 -4058 Thanks, !e 6 to m. AC40R " CERTIFICATE OF LIABILITY INSURANCE F 2A E (MWDDNY ) THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such andorsement(s). PRODUCER Grayling Insurance Brokerage 450 Northridge Parkway Suite 102 Atlanta GA 30350 CONTACT Jerry Noyola PHONE (770) 552 -4225 T FAX 1866] 550 -4082 AI-No): p DpDp RIESS:jerry.noyc,la @greyling.com INSURE S AFFORDING COVERAGE NAIC 9 INSURERA:Sentinel Insurance Company, LTD 11000 INSURED R.J. Behar & Company, Inc. 6861 S.W. 196th Avenue Suite 302 Pembroke Pines FL 33332 INSURERB:Travelers Casualty and Surety 0443 INSURERC:Continental Casualty CoLmpaEy 20443 INSURER D: INSURER E: $ 1,000,000 INSURER F, X COMMERCIAL GENERAL LIABILITY COVERAGES CERTIFICATE NUMBER:13 -14 REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERfOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR LTR TYPE OF INSURANCE ADDL SUER POLICY NUMBER POLICY EFF MMIDD POLICY EXP (MNVDDNYYYI LIMITS GENERAL LIABILITY EACH OCCURRENCE $ 1,000,000 X COMMERCIAL GENERAL LIABILITY DAMAGE ( RENTED PREMISES S Ea occurrence $ 1,000,000 A CLAIMS -MADE X OCCUR 20sEmAcG037 1/17/2012 1/17/2013 MED EXP (Any one person) $ 10,000 PERSONAL& ADV INJURY $ 1,000,000 GENERAL AGGREGATE $ 2,000,000 GEN'LAGGREGATELIMIT APPLIES PER: PRODUCTS- COMP/OP AGG $ 2,000,000 POLICY X PRO $ AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT Ea accident $ 1,000,000 BODILY INJURY (Per person) S A X ANY AUTO BODILY INJURY (Par accriont) $ ALL OWNED SCHEDULED 2DUECKGO289 1/17/2012 1/17/.2013 AUTOS AUTOS PROPERTY DAMAGE $ NON -OWNED HI RED AUTOS AUTOS Per aeddent X UMBRELLA LIAB X OCCUR EACH OCCURRENCE $ 3,000,000 AGGREGATE $ 3,000,000 A EXCESS UAB CLAIMS -MADE DED I X I RETENTION$ 1040 $ OSBMAC0037 3/17/2012 1/17/2013 B WORKERS COMPENSATION - X WCSTATU- OTH- LIMITS AND EMPLOYERS' LIABILITY YIN _F E.L. EACH ACCIDENT $ 1,000,000 ANY PROPRIEORIPARTNERlEXECUTIVE 77 OFFICERIMEMBER EXCLUDED? (Mandatory in NH) NIA - 3864T21 -4 /1/2013 /1/2014 E.L.DISFASE - EA EMPLOYEE S 1,000,000 If yes, describe under DESCRIPTION OF OPERATIONS below E.L. DISEASE - POLICY LIMIT $ 1,000,000 C Professional Liability AEH 28 836 36 39 1/17/2012 1/17/2013 Per Claim $2,OOD,000 Aggregate $3,000,000 DESCRIPTION OF OPERATIONS ILOCATIONS 1 VEHICLES (Attach ACORD 101, Additional Remarks Schedule, if more space is required) Re: Projecct #2009 -009 - Fed Hwy Beautification. The The City of Delray Beach is named as an Additional Insured on the above referenced liability policies with the exception of workers compensation & professional liability where required by written contract. CERTIFICATE HOLDER CANCELLATION ACORD 25 (2010/05) INS025 (2mnns) ni O 1988 -2010 ACORD CORPORATION. Ali rights reserved. Thn A('OPr) n:ima mnrl Inn^ nra ra ^ic4arcrl mnrlrc nF Ar`r Pn SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN City of Delray Beach ACCORDANCE WITH THE POLICY PROVISIONS. 434 South Swinton Avenue AUTHORIZED REPRESENTATIVE Delray Beach, FL 33444 Cooper Smith /JERRY ACORD 25 (2010/05) INS025 (2mnns) ni O 1988 -2010 ACORD CORPORATION. Ali rights reserved. Thn A('OPr) n:ima mnrl Inn^ nra ra ^ic4arcrl mnrlrc nF Ar`r Pn Policy Number: 20SEMAC0037 BUSINESS LIABILITY COVERAGE FORM Various provisions in this .policy resfrict overage. mead the entire policy carefully to determine. rights, duties and-what Is and is not covered Throughout this policy the words "you" and "your" refer to the Named insured shown in the Declarations. The words "we ", "us" and "our refer to the stock insurance company member of The Hartford providing this insurance. The word "insured" means any person or organization qua lifying as such under-Section C_ -- Who is An insured. Other words and phrases that appear in quotation marks have special gleaning. Refer to Section G. Liability And Medical Expenses Definitions. A. CQV ERAGES C Z.. BUSINESS UA€3IL.ITY COVERAGE '(BODILY INJURY,, PROPERTY DAMAGE, PERSONAL AND ADVERTISING INJURY) Insuring Agreement a. We will pay these sums that the insured becomes legally obligated to pay . as rn damages because of "bodily injury" rn 1, property damage" or "personal and advertising injury" to which this insurance applies. We W111 have the right and duty.to defend the insured against any "suit" seeking those damages. However, we will have no duty to defend the insured against any "suit" seeking damages for "bodily injury" "property damage" or "personal and advertising injury" to which this insurance does not apply - We may, at our discretion, investigate any "occurrence" or offense and settle any claim or "sLiit" that may result, But: (1) The an ount we wi €€ pay for damages €s e limited as described in Section D1. - i Liability Arid Medical Expenses Limits Of Insurance; and (2) Our right and duty to defend_ ends when we have used the applicable limit of insurance in the payrnent :of judgments, settlements or medical expenses to which fhis insurance applies. No Other obligation or liability to pay sums or perform acts or .services is covered unless explicitly provided for ,cinder- Coverage E)dension Supplementary Payments. b. This insurance applies (1) To `bod€#y injury" and "property damage- only ir: (a) The "'bodily. injury' or "property . damage" is caused by an "occurrence" thiat takes place in the "coverage territory" (b) The "bodily injury" or "property damage" occurs during the policy period; and (c) Prior to the pof'Ecy period, no insured listed udder Paragraph 1, of Section C. — Who Is Art Insured and no "ernpfOyee" authorized by you to give or receive notice of an "occurrence" or claim, knew that the `'bodily injury" or "property damage" had occurred, in whole or in part. If such a f=sted insured or authorized "employee" knew, prior to the policy period; that the "bodily .injury" or "property damage" occurred, then any continuation, change or resumption of such "bodily injury" or "property damage" during or after the policy period y,"il€ be deemed to have been known priorto the policy period. (2) To "personal and advertising injury" caused by an offense arising out of your business, but only if the offense was committed iri . the „coverage territory" during the policy period. c, "Bodily injury" or "property damage" will be deemed to have been known to have occurred at the earliest time when any insured listed under Paragraph 1. of -Section C. —Who is An insured or any "ernpioyee" authorized by you.to 7give or receive notice of an "occurrence" or claim, (1) Reports all-, or any part, of the "bodily injury" :or " property damage" to us or any other insurer, Portia 5S 00 08 04 05 Page 1 of 24 0 2005, The Hartford BUSINESS LIABILITY COVERAGE FORM (2) Deceives a written or verbal demand or b. We wifl make these. payrnerrts regardless of claim for darnages bemuse of the "bodily fault. These payments will not exceed the Injury' or "property damage ", or applicable limit of insurance. We will pay (3) Becomes aware by any other means that reasonable expenses for "bodily injury" or "property damage" has (1) First aid adrtainis eyed at the time of an occurred or has begun to occur, accident-, d. Damages because of "bodily injury "' include (2) Necessary medical, surgical, x -ray and damages claimed by any person or dental services, including prosthetic, organization for care: loss of services or devices; and death resulting at any time from the "bodily () Necessary ambulance, hospital, injury". profession at nursing . and funeral e. Incidental Medical Malpractice services. (9) "Bodily inju5F` arising out of the 3. COVERAGE EXTENSION rendering of or failure to render SUPPLEMENTARY PAYMENTS professional health care services as a a. We will pay; with .respect to any claims or physician, dentist; nurse, emergency ' -so ft" we investigate or settle; or any "suit" . medical technician or paramedic shall against an ensured we defend' be deemed to be caused by .art "occurrence"; but only if, (1) All expenses we incur. (a) The physician, dentist, nurse, (2) Up to $1,000 for the cost of bail bonds emergency medical technician or required because of accidents or traffic paramedic is employed by you to law violations arising out of the use of provide such services; and any vehicle to which Business Liability (b) You are not engaged in. the Coverage for "bodily injury" applies. We b business or occupation of providing do not have to rumish'tl7ese bands. such services. ' , (3). The Cost of appeal bonds or bonds to (2) For the purpose of determining the release attachments, but only for bond limits of insurance for incidental medical �mdunts within the applicable limit of malpractice: any act or omission insurance. We do not have to furnish together with all related acts or these Bonds. Omissions in the furnishing of these (4) All reasonabie expenses incurred by the services to any one person will be insured at our request to assist us in the consitiered one.'accursence ". investigation or detense-of.the claim or 2. iVfiIGAL EXF�ENSErS : "suit ";. including actual loss .of earnings up to $500 a day because of time off Insuring Agreement from work; a. We will pay medical expenses as described 5 () All costs taxed against the .insured in below, for "bodily injury" caused by an the "suit ". accident: (6) Prejudgment interest awarded against (1) On premises you own or rent, the insured on that part of the. judgment (2) on ways next to premises you own or we pay. if we make an offer to pay the. rent, or applicable limit of insurance, we will not (3) Because of your operations; pay any prejudgment interest based on that period of time after the offer. provlded.that: (7) All interest on the full .amount of any (1) The accident takes place in the judgment that accrues after entry of the "coverage territory" and during the judgment end before ` we have paid., ; policy period, af€ °mod to paJ, or deposited in court the (2) The expenses are incurTed and reported part of the judgment that is within the to us within three years of the date :of applicable limItofinsurar#ce, the accident; and Any amounts. paid under (1) through (7) . (3) The iniu.red person submits to above will not reduce the remits of insurance. . examination; at our expense, by physician of our choice as often as we reasonably require. Page 2 of 24 Form S5 lid 08 04 05 M ,cz+.. r� n M 0 0 x� 0 ua r7 b. If we defend an Insured _against a "self' and an indernri tee of the insured is also named as a party to the "suit we will defend that indemnitee if all of the following conditions are met: (1) The "suii agair}st the iridemnitee seeks damages for which the insured has .assumed the -liability of the indemnitee. in .a contract or agreement that is an insured contract "; (2) This insurance applies to such liability assumed bythe Insured; (3) The obligation to defend, or the cost of the defense .of, that indemnitee, has also been assumed by the insured in the same ".insured contract "; (4) The allegations in the ".suit" and the information we know about the "occurrence are such that no co riflict appears to exist between the interests of the insured and the interest of the indemnites; (5) The indemnitee and the insured ask as to .conduct aid control the defense of that indernnitee against such "suit" and agree that we can assign the same counsel to deferid the insured and the indemnitee; and (6) The indemnitee: (a) Agrees in writing to_ 0) Cooperate with us in the investigation, settlement or defense of the "suit"; (ii) Immediately send us copies of any demands,, 'notices, summonses or legal papers received in connection with the "shit "; (iff) Notify a.n.yather insurer. whose coverage is available to the indemnkee; and (iv) Cooperate with us with respect to coordinating - other applicable insurance available to the indemnitee; and (b) 'Provides us with written authorization to (i) Obtain records and other information related to the "suit"; and Cii) Conduct and corftrol fire defense of the indernnitee in such "suit": Farm SS 00 03 04 05 BUSINESS LIABILITY COVERAGE FORM So long as the above conditions aM met, attorneys' fees incurred by us in the . defense of that :indemnitee, necessary litigation. expenses incurred by us and necessary rtigation expenses incurred by the indemnitee at our request will be paid as Supplementary Payments. Notwithstanding the provisions of - Paragraph 'i.b.(b) of Section B..:— Exclusions, such paymi;nts will not ba deerned to be damages for "bodily injury" and "property ,damage" and will riot reduce the Limits of Insurance. Our obligation to defend an irisured's indemnitee and to pay for atfiomeys' fees and necessary litigation :expenses- as Supplementary Payments ends whem (9) We -have used up the applicable limit of . insurance in the pnymen't. of judgments or settlements; or .(2) The conditions .set forth :above, or the terms of the agreement described. in Paragraph (6) above, are no longer met. F3. EXCLUSIONS 'I. Applicable To Business Liability Coverage This insurance does not apply to: a.. Expected Or Intended Injury (t) "Bodily injury" or "property .damage" expected or intended from, the standpoint of the insured. This exclusion does not apply to "bodily injury" or "properly damage" resuhing from the use of reasonable force to protect persons car property; or (2) "Personal and advertising injury" arising out of an offense- committed by, at the direction of or with the consent or acquiescence of the. insured with the expectation of Inflicting "personal and advertising injury". b. Contractual Liability ('E) "BodUy .injury" or "property damage"; or (2) "Personal and advertising.inju:ry" for which the. insured -is. ,obligated to pay damages by reason of the assumption of Nabl fly in a coriurac` or agreement, This exclusion does not apply to GablUty for damages because of (a) "Bodily injury ", " property damage" or "4peersonal2ny advrerfisl y'�irvnr "#i,�{ the insured would have in the absence of the contract. or agreement; or Page 3 of 24 BUSINESS LIABILITY COVERAGE FORM (b) "Bodily injury" or "property damage" assumed in a contract ar . agreement that is an 'insured contract" provided the " bodily injury. or "property damage" - occurs subsequent to the. execution of the contract or agreement. Solely for the purpose of lability assumed in an 1risured contract", reasonable attorneys' fees and. necessary litigation expenses incurred by or for a party other than. an insured are deemed to be damages because of "bodily injury" or "property damage" provided: (i) Liability to such party for; or for the cost of, that party's defense has also been assumed in the same "insured contract ", and (ii) Such attorneys` fees and litigation expenses . are for defense of that parly against a civil or alternative dispute resolution proceeding in which damages to. which this .insurance applies are alleged. c. Liquor Liability "Bodily injury" or "properly darriage" for which -any insured may be held liable by reason of. (1) Causing or contributing,. to the intoxication of any person; . (2) The furnishing of alcoholic beverages to a person under the legal drinking age or underthe influence- ofalcohot or (3). Any statute, ordinance or regulation relating to the sale, gift., distd6ution or use of alcoholic beverages, -This exclusion applies only if you are in the business of manufacturing, distributing, selling, serving or furnishing alcoholic beverages. d, Worker's' Compensation And Similar Laws. Any obligation of. the insured under :a workers' compensation, disability benefits or unemployment compensation law or arry similar lave. e. Ernployer's Liability „Bodily injury" to-, (1) An "employee" of the insured arising out of and in the course of:- (a) Employment by the insurers; or Page 4 of 24 . (b) Performing duties :related to the conduct of the insured's business, or _ (2) The spouse, child, parent', brother or sister of that "employee" as a consequence of (1) above. This exclusion applies: (1) Whether the insured may be liable as an employer or in any other capacity, and (2) To .any obligation to share damages with or repay someone else who must pay damages because of the injury,. This exclusion_ does. not apply to liability assumed by the insured sander an "insured contract" f, Pollutiori (9) "Bodily injury ", "property damage" or "Personal and advertising injury" arising out of the actual, alleged or threatened discharge, dispersal, seepage, :migration, release or escape of "pollutants ": (a) At or from any promises, site or location which . is or wQs at arty time owned or occupiers by, ar rented or loaned to any :insured. . However, this subparagraph does not. apply to_ (i) "Bodily injury if sustained Within a building .and caused : by smoke, fumes, vapor or snot produced by or originabrig from equiprnent.that is used to heat, cool or dehumidify the building;. or equipment that is used to heat water for personal use-, by the building's occupants or their guests; (1i) "Bodily ink ry" or "property damage" for which you may be held liable, if you are- a contractor and the owner or- lessee of such premises, site or location has,bee3ri added to your policy as an additional insr_i vri<h respect to your ongoing operations. performed for that add6)nal insured at that premises;, site or location and such .premises, site or location -is not and never was owned or occupied by, or rented of t a z�A- lliellleu LV; OiF'y' iL i.�?U]Gll.E - -.l UMI - than that additional insured; or Fonn 3S 00 08 04 05 Form 5S € 0 08 Oct. 05 Page 5 of 24 BUSINESS LIABILMY COVERAGE FORM (iii} "Bodily in jury or "property released as part of the damage" arising out of heat, operations being perforated smoke .. or fumes from a by such insured, contractor or "hostile fire "; subcontractor;- (b) At or from any premises, site or "Bodily injury'" or "property location whiob is or was at any damage" sustained within a time used by or for any insured or building and ' caused by the others for the :handling, 'storage.. release of gases, fumes or disposal, pi- ocessing or treatment. vapors from materials brought of waste; into that- building in connection (c) Which are or were at any time with operations being perforated u, transported, handled, stored, by you or Gin your behalf by a treated, disposed of, or processed contractor or subcontractor or as waste by or for_ (iii) 'Bodily inju ry " or „property (i) Any insured; or damage" arising out of heat, (ii) Any person or organizatiori for Smoke or fumes from a "hostile fire". or Whom you may be: legally . rasponsible; (e) At or from any premises, site pr C1 (d) At or from any prernrses, _site or location on which any insured or any c.r. o location on which any insured or contractors or subcontractors ra any contractors or subcontractors working directly or indirectly on any o working directly or indirectly on insured's behalf are performing any insureds behalf are operations If the operations are to perforating operations if the test for, monitor, clean up, remove, - "polMants" are brought on or to : contain, treat detoxify or neutralize, — the premises, site or location in or in any way respond to, or assess the effects of, "polluCantsp. CoWeGbOn with such operations _ by such insured, contractor or (2) Any less, cost or expense arising out subcontractor, However, this. of any; subparagraph does not apply to: (a) Request, demand, order or statutory {i) "Bodily fijury" or " property or regulatory requirement that any damage" arising out of the insured or others test .for, monitor, escape of fuels, lubrican #s or clear up; remove, contain, treat, other operating fluids which are deto,)dfy or neutralize, or in any way needed to perform the normal respond to, or-assess the effects of, electrical, hydraulic or 'pollutants "; or mechanical functions (b) Claim or suit. by or on . behaff of a necessary for the operation of governmental authority for . "mobile equipmenr or its parts, damages because of testing for, _ if such fuels, lubricants or other monitoring, oleaning up, removing, operating fluids escape from a containing; treating, detoxifying or vehicle part designed to halo, neutralizing, : or in any way . store or receive them. This responding to, or assessing the . _ excepfron does not apply if the effects of, "pollutants ". "= "bodily injury" or "property However, this paragraph does trot. — damage" arises out : of the apply to liability for damages because intentional .discharges dispersal of "property damage" that the insured -� or release of the fuels, Would i;3;EO its �Q absers.ep of fi��ch lubricants or �tYtei- operating request, demand, order or statutory or fluids, car if such fuels, regulatory requirement; or such clairn lubdoants or other operating or "suit" by or on. behalf of a fluids are brought on or to the governmental authority_ nre.micps cite nr Inn_,4tj nn m&h the intent that they be discharged, dispersed or Form 5S € 0 08 Oct. 05 Page 5 of 24 BUSINESS L.iABiLrrY COVERAGE FORM g., Aircraft,.Auto Or Watercraft (2) The use of " mobile equipment`" in, or "Bodily injure' or "properly damage" arising while in practice or preparation for, a out of the ownership, maintenance, use or prearranged racing, speed or entrustment to others of any aircraft "'auto" demolition contest or in any stunting or watercraft owned or operated by or rented activity, or loaned to _,any .insured. Use 'includes i. War - operation and 'loading or unloading'. "Bodily in ju ry", A�Pedy damage" -or This exclusion. applies even -if the claims "personal and advertising injury", however against any insured allege negligence- or caused, arising, directly or indirecfl y, out crf: other. wmagdohg in the supervision, hiring, (1) War, including undeclared or civil war; employment, training or monitoring of others by that insured, if the '"occurrence" which (2) Warlike. action by a military force, ,e caused the bodily injury." or „properly including action in hii'tdering or dam agge" involved ttte . ownership, defending against an actual or _use or entrusts rent to others of expected attack, by any government, any aircraft, "auto" ar. VlaterCr2ft that is sovereign or other authority using owned or operated by or rented or loaned to military personnel or othei~ agents; or any insured. (3). insurrection; rebellion, revolution, This exclusion does not apply to: usurpers power, or action taken by. governmental authority.in hindering or (1) A Watercraft while ashore on premises defending against any of these. you own or rent, j. Professional Services (2) A- watercraft you.do not own that is.' "Bodily. injury", " property, damage" or (a). Less than 51 feet long„ and "personal and advertising injury" arising (b) Nat being used to r ai-fy persons . . out of the rendering of.-or failure to render for a charge; any professional service, This: includes (3) Parking an "auto" on, or .ori the ways but is not limited ifl: next to, premises you own or rent, (1) Legal, accounting. or advertising provided the "`auto" is not awned by or services; rented or loaned to you or the insured; (2 }. Preparing, approving, or fatting to (4) Liability assumed under any "insured prepare or approve maps, shop contract" for the Dwrzership, drawings, opinions, . reports, surveys, . maintenance or use of aircraft or field orders, change orders, designs or watercraft; drawings and specifications; (5) ".Both #y injury" or "property damage" (3) Supervisory: inspection, architectural arising out of the operation of any of of engineering activities; the equipment listed in Paragraph f_(2) (4) Medical, surgical, dental, x -ray or or f.(3) of the. definition of "mobile: nursing .services treatment, advice or equipment`.', or instruction;. (6)- An aircraft that is not owned by any (5) Any health or therapeutic service insured and is hired, chartered or loaned treatment; advice or instruction; with a ,paid crew, However, this (6) Any service, treatment, advice or ercepuon dues not apply if the insured instruction for the purpose of has any other insurance for such 'bodily appearance or skin enhancement, hair injury" or "property damage, whether removal or replacemerit or personal the other insurance :is primary, excess, contingent or on any other basis, grooming; R Nfilb ,,!e Equipme-f . (T) Optical or hearing aid services Including the prescribing-, preparation, "Bodily injciry" or "property .damage° fitting, demonstration or distribution of arisirig out of:. ophthalmic: leases : and similar (1) The transportation of "mobile equipment ".. products.or hearing aid devices; hu an "ariin° nwnpd nr nn[satP.d by [?r anted or loaned to arty -insured; or Page 6 of 2-4 i _ _ Form 5500 08 04 05 Farm $3 00 08 04 its Page 7 of 24 BUSINESS LIABILITY CGVERAGE FORM {8} t�piQrnetry or opiomeWc; services Paragraphs (1), (3) and (4) of this including but not limited to examination exclusion do not. apply to "property of the eyes and the preset -bing, damage" (other than damage by fi.re). to preparation, ftting;demonstration or premises, including the contents of such distrlibution of ophthalmic :lenses and premises., rented to you for a .period of 7 or similar products; fewer consecutive days. A separate Limit (9) Any: _ _ _ of. Insurance applies to .l3amage To Premises Rented To You as.desorll din a Body Herrin ( y p' g (not including ear Section D, - Limits Of Insurance. pierding); Paragraph (2) of this exclusion does not (b) Tattooing; including but not limited. apply if the premises are your work' and to the insertion of pigments into or were .never oaaupi.ed, rented or held for c-. under the skin; and rental by you.. b, (c) Similar serv'tees; Paragraphs (3.) and (4) of this exclusion -do ° (10) Services in the practice of pharmacy, not apply to the use of eievators. and Paragraphs (3), (Q} (5) and (6) of this r4 (t 1) Computer consulting, design or exclusion do-not apply to .liability assumed programming services, including web under asidetrack agreement. C) site design. Paragraphs (3) and (4) of this exclusion do CD Paragraphs (4) and (5) of this exclusion do got a.ppiy to "property damage" .to fl. not apply to the incidental Medical borrowed equipment while not being used Malpractice coverage afforded under to perform operations at a job site. Paragraph 'I.e. in Section A. R Coverages. Paragraph (6). of this exclusion does not �,. k. Damage To Property apply.to "property damage" included in the "Property damage" to: "products-Completed operations hazard ", (1) Property you own, rent Of .occupy,: L. Damage To Your Product Including any costs or. expenses "Property damage" to "your product" incurred by you, or any other person, arising out of it or any part of it, --_- organization or entity, for repair, m. Damage. To Your Wank replacement, enhancement, restoration or mairitenanc;e of such "Property damage" to "your work" .arising property for any reason, iricluding out of :A or any part of it and included in the prevention of injury to a person or products-completed operations hazard" damage to another's property; This exclusion does not apply if the (2) Premises you sell, give away or damaged work or the work out of which . abandon, if the 'prop erty damage" arises the damage arises was performed on your =' out of any part of those premises; behalf by a subcontractor_ (3) Property loaned to you n. Damage To Impaired Property. Or Property Not Physically Injured (4) Personal property in the care, custody or control of the Insured,. "Property damage" to "impaired property" _ or property that has not been physically _ (5) That particular part of real property on injured, arising out of - whit you or any contractors or —_ subcontractors working directly or (1) A defect, deficiency; inadequacy or .- indireclfy on. your behalf are performing dangerous r onditifln :ln "your product" operations, if the `property- damage-" or "your work "; or arises out of those operations; or (2) A delay or failure by you or anyone (a) -that particular part of airy property arming on your behalf to perform a that must be restored, .repaired or. contract or agreement in accordance replaced because 'your work" was with its terms, incorrectly.perormed on it. This exclusion does not apply to the lass of use of other .property arising out . of suddert and accidental .physical injury to "your product" or "your work" after it has been Out to its intended use.. Farm $3 00 08 04 its Page 7 of 24 BUSINESS UASIUTY COVERAGE FORM o. Recall Of Products, Work Or Impaired Property Pan -sages claimed for any loss, cost or _expense incurred by you or others for the- foss of arse, withdrawal, recall, inspection, repair, :replacement, adjustment, removal or disposal of (1) "Your product "; f Z) "Your woW; or (3) "Impaired property "; if such product, work or , property is withdr wn or recalled from the market or -from. use by any person or organization because of a known or suspected defect, deficiency, inadequacy or dangerous condition in it. p. Personal And Advertising Injury " Personal and advertising injury ": (1) Arising out of oral, written or electronic publication of material, if done by or at the direction of the insured. with knowledge of its falsity; (2) Arising out of oral, written or electronic publication of. material whose first publication tools place before the beg of the policy period; (3) Arising otit of a criminal act committed by or at the direction of the insured; (4) Arising out of any breach of contrar✓ , except an implied contract) to use another's 'advertising idea in your °'advertisemer?t "; (5) Arising out of the failure of. goods, products or services to conform with any statement of qualify or performance made in your "advertisement"; (6) Arising out of the wrong description of the .price ofgoods, products or services; (7) Arising out of any violation of any intellectual property rights such as copyright, patent, trademark., trade name, trade secret, service mark or offer designation of origin or authenticity_ However, this exclusion does trot apply to tr1fringemonL in your "advartisemertt "; of (a) Gopyrigot; (b) .Slogan, unless the slogan is also a troder—nark, trade r:c'z,`n°, mark or other designation of origin or authenfcity; ar Page 8. of 24 (c) Title of any literary or artistic work; (8) Arising out of:an offense corny itted by an insured whose business.is: (a) Advertising, broadcasting, publishing or telecasting; -(b) Designing or determining content of web sites for others; or (c) An Internet search; access, Content or service provider. However, this exclusion does not apply to :Paragraphs a.,. b., and c. under the definition of "personal and advertising injury" in S-ection G. -, Liability And Medical Expenses Definitions. For the purposes of this exclusion,. placing . an "advertisemerit" for or linking to others on your web site, by itself, is not considered the business of. advertising., broadcasting, publishing or telecasting, (9) Arising out of an electronic dhat room . or bulletin :beard the .insafed hosts, ohs, or over which the insured exercises control, (90) prising out of the unauthorized use of another's riarria or product in your e- mail address, domain name- or met �tag5, or any other similar. tactics to mislead anthers potential customers; (11.) Ar €sing out of the violation of -a person's right of privacy created by. any state or federal act. However, this exclusion does not apply to liability for damages +,hat the insured would have in the absence of such state orfederal act; (12) Arising out of: .(a) An "advertisement" for others cn yourweb site; (b) Placing a link to a web site of others on your web site; (c) Content from a web site of ethers. displayed .within a frame or border' on your web site, Content includes infarrnation, .code, .sounds, text, graphics Orirnoges; or (d) Computer code, software or programming used to enable,. (i) Your web site; or .f:) "rk e +�j p fl._pFL�vI,,G, - v of.an "advertisement` or other content on your web site; Form SS DO 06 04.05 (13) kisin– out, of a violation of an' anti- trust lawi {14) Arising out of the fluctuation in price or value of any stocks, fonds or other Securities; or (15) Arising out of discrimination or humiliation committed by or at the direction of -any "executive afFicer"., director, stockholder, partner or member of the insured. q, Electronic Data . Damages arising out'of the loss of, lass of use of, damage to, corruption of, inabfl€ty ° to access, or - inability- to manipulate "eiectranic data ". r Employment- Related Practices "Bodily injury" or "personal and advertising rn injury" to: (1) A person arising out of arty: cz (a) Refusal to employ that person-, o (h) Termination of that person's employment; or (c) Ernpioyrrent- related , practices, policies, acts or omissions, such as coercion, demotion;. evaluation, reassignment discipline, defamation, harassment, humiliation or discrimination directed at that — parser:, or (2) The spouse, child, parent, brother or sister of . that person as a =" consequence of "bodily injury" or "personal and advertising injury" to the person at whom any of the employment- related practices described in Paragraphs (a), (b), or(c) above is directed. This exclusion applies: (1) Whether the insured may be liable as an employer or in any other capacity; and — (2j To any obligation to share damages with or repay someone -else who must pay damages because ofthe injury_ s_ Asbestos (1) "Bodily injury "; 'property damage" or "Personal and advertising injury" arising out of the "asbestos hazard ". (2) Any damages, judgments, setflement�, loss. is VWxs Lit .ebt —eases U'RaE Form SS 00 08 04 05 BUS1hE55 LIABILITY COVERAGE FORM {a) May be awarded or incurred by reason of any claim or suit alleging actual or threatened injury or damage of any nature or kind to persons or property which would not Have occurred in Whole or in `dart but for the "asbestas hazard ", (b) Anne out of any request; demand, order or statutory or regulatory requirement -that any insured or others test for, monitor, clean up, remove, encapsulate, contain, treat, detoxify . or neutralize or in any way respond to or assess the effects of an "asbestos hazard"; or {r,) Anse out of any ciaim or suit for damages because of testing for, monitoring, cleaning up, removing', encapsulating, containing, treating, . detoxifying or neutralizing or in any way responding to or assessing the effects of an "asbestos hazard ". t: Violation Of Statutes Thai Govern E- Mails, Fax, phone Calls. Or Other Methods Of Sending Material Or Information - "Bodily injury "property damage ", or "personal and advertising injury" arising directly or indirectly out of any action or ornissimi that violates or is alfeged to violate:. (1) The Telephone Consumer r- Protectiion Act (TCPA); including any amendmem of or.addlUon to such lain; (2) The CAM -SPAM Act of 2003, including any amendment -of or addition to such law; or (3) Any statute, ordinance or regulation, other than the TOPA or CAN -SPAM Act of M3, that prohibits or limits the sending, transmitting, communicating or distribution of material or information. Damarge. To Premises Rented To You Exception For l3amage y l =ire, Lightning or Explosion Exclusions c. through h. and k. through o- do not apply to damage by fire, frghtning or explosiori to premises rented to you or . temporarily oacup led by you With ;_permission. of the owner. A - separate Limit of Insurance applies to this coverage - as described in Section D. - Liability And Medical menses - Limits Of Insurance. f3age 9 of 24 S S1.NESS LIABILITY COVERAGE FORM 2. Applicable To Medical Expenses Coverage we will not pay expenses fpr "bodily injury ": a. Any Insured To any insured, except "volunteerworkers b. Hired Person To .a person hired to do work.for or on behalf of any insured or a terrain of any insures. c_ Injury On Normally Occupied Premises. To a person injured 'on that part of premises you own or rent that the person normally occupies. d_ Workers' Compensation And Similar Craws To a person, whether or tint: an, "employee" of any iris.ured, if benefits for the "bodily injury" are payable or must be provided under a .workers' cornpe-nsatian or disability benefits iaw or a. similar lava: ea Athletics Activities To a person injured while practicing, instructing or. participating in any physical exercises or games, sports -or athletic contests. f, Products.Gampleted Operations Hazard Included with the "products - completed operations ,hazard ". g. Business liability Exclusions Excluded under Business Liability Coverage: C.. WHO IS AN INSURED 'i, If you are designated in the Declarations es: a. An individual, you and your spouse are insureds, but only with respect to the conduct of a business of which you are the sole owner. b. A partnership or joint venture, you are an insured. Your members, your partners, and their spouses are also insureds, but only with respect to the conduct of your business: c. .A i-imifed . liability company, you are an insured. Your members_ are also insureds, but o* with respect to the conduct of.your business. Your managers are. insureds, but only :Mth respect to their dunes as your trtarra gers. d. .An organisation other than a partnership, joint venture or iiniiled liability company, you are arrinsured. Your "executive officers" and directors are insureds, but only with respect to chair Tiirfipe az vr�>>r nffirar of rlirflctor , Your stockholders are also-insureds, but only with respect to their liabiftty as stockholders, Page 10 of 24 e. A trust, you are an insured. Your trustees are also insureds, but only with respect to - their duties as trustees. 2. Each ofthe.following is also an insured: a. Employees-And volunteer Workers Your 'volunteer workers" only while performing duties. related to the conduct of your business., or your "employees", other than either your "executive officers" (if you are . an organization rather than a partnership, joint denture or limited liability company) or your managers (if you are a limited l'iabilitty company), but only far acts wfthin the scope of their crrrployrnent by you or while perforriiing duties related to the conduct ofyour business: However, none of these "employees" or "volunteer workers" are insureds for:. (1) "Bodily iniury" or "personal and advertising injury": (a) To you, to your partners or members (if you are a partnership or joint venture), to your members (if : yoLi are a limited liability corriparty), or to a co- „ernployee” while in the coarse of his or her employment or performing duties related to the conduct of your business, or .to your other "Volunteer workers" while performing duties related to. the conduct of your business; (b) To the spouse, child, parerA,. brother or sister of that eo- "employeee' or that "volunteer worker' as a consequence of Paragraph (1)(a) above., (c) For which there is any obligation to share damages with or repay someone else who must pay damages because of the injury described in Paragraphs (1)(a) :car (b) above; or (d) Arising out of his or )ter providing or failing to. provide..professionai health care services. if you are nof. in the business of providing. professional health. rare services, Paragraph (d) sloes not apply to any nurse., emergency medical technician or paramedic employed by you to provide such services. (2) "Property damage" to property: (a) Owned, occupied or used by, Form SS 0!0 08 04 05 (h) .Rented to, In.the care, Gustody or control of, or over which physical control is being exercised for any purpose by you, any of your "e. ploy"s', "volunteer workers "; any partner or member (lf you are a partnersbip or joint venture), or any member (if .you are a limited liability company). b. Real .Estate Manager Any parson (other than your "employee or "voiuriteer worker"), or any organization while acting as your.real estate manager. o .. c.. Temporary Custodians Of Your Property Q Any person or organization having proper temporary custody of your property if you die, but only: (1 ) Wth respect: to liability arising out of the maintenance or use of that property; and cz (2) Until your legal representative has o been appointed. 0 M d, Legal Representative if You Die Your legal representative if you die, but only with respect to. duties as such. Thai representative will have all your rights and duties under this insurance. e. Unnamed 5ubmdiary Any subsidiary and subsidiary thereof, of ® yours which is a .legally incorporated entity of which you owns a financial interest of more -than 50% of the voting stock on the effective date of this Coverage Fart. The insurance afforded herein for any subsidiary not shown in the Declarations as a named insured does not apply to injury or damage with respect to which an irisured under this insurance is also an insured under another policy or would be an Insured .render such policy but for its termination or upon the exhaustion of its iim€ts of insurance. 3. fdewtyAcquired Or Formed 4rganizartion Any organization you newly acquire or form, other than a .partnership; joint venture or limited liability company, and over which you maintain financial interest of more than 50% of the voting stock, will qualify as a famed Insured if there is no .other similar insurance available to that organization. However _d__ �,_•_ a ..u...i na LVYC1cPLJC UIIUGI 1111S rJfl VY'tSfLriS1.7 p117 -FIvGL only until the 180th day after you -acquire or form the organization or the end of the policy period, whichever is earlier; rid Form SS 00 08 44 05 BUSINESS UABILITY COVERAGE FORM b. Coverage under this provision. does not . apply to: ('l) "Bodily injury" or "property darnage� that occurred; or (2) 'Personal and advertising injury" arising out of an offense committed before you acquired or formed the organization. 4. Operator Of Mobile Equipment Wcth respect to "rnobile equipment" registered. in your ri me cinder any motor vehicle registration law, any person is an insured while drnAng such equipment a;opg a public highway .vifh your permission. Any other person nr organization responsible for the conduct of such person is also an insured, but only with respect to liability arising out of the operation of the equipment, and only if no other insurance of any kind is available to that person or organization for this liability. - However, no person or organization is an insured with respact.to. a:. "Bodily .injury" to. a- co- "employee" of the person driving the equipment; or lei. "Property damage' to properly owned by, ranted to, in the charge of or occupied by you or the employer of any person who is an insured under this provision. S. Operator of Nonowned Watercraft Wth respect to watercraft you do not own that is less than 51 feet long and is .not being .used to carry persons for a charge, any pers4i is an insured. while operating such watercmil with your permission, Any other person or organization responsible for the conduct .of such person is also an insured, but only with respect to liability arising out of the operation of the watercraft, and only if no other insurance of any kind is available to that person or organization for this liability. However, no person or organization is an insured with respect to: a "Bodily .injury" to a co- "employee" of the person operating the watercraft; or b. "Property damage" to property owned by, rented to, in the charge of or occupied by you or the employer of any person who is an insured underthis provision: 6. .Additional Insureds When Required By Written Contract, Written! fAgrearnent Or Permit -I 11C .yGiaon's'. or oryoiiicn>_lvr ;kzq a nt lad .-m Paragraphs a. through f. below are additional . insureds when you have agreed, ,in a written Page 41 of 24 BUSINESS LIABILITY COVERAGE FORM contract, Written agreement or because of a perrnit; issued by a state or politic ®l subdivision, that sucih person or organization be added as an additional insured on your policy, provided the injury or damage .occurs subsequent to the execution of the. contract or agreement, or the issuance of the permit. A .person or organization is an additional insured under this provisions only for that period of time required by the contract, agreement or permit However, na such person or organization is an additional insured under this .proAs'son if sur-h person or organization. is included as an acbdsiional `Insured by an endorsement issued by us and -made a pail of this Coverage Part, including all persons or organizations added as additional insureds under th specific additiorial. insured coverage grants in Section F. -� Qptlonal Additional Irssured.Coverages. a. Vendors Any person(s) c� organizatiori(s) (refarred fo below as vendor), but `only with. respect to "bodily injury" or "property damage" arising out of "your products" which are distributed or sold in the regular course. of the vendors business and only if this Coverage Part provides coverage for "bodily injury„ or "property damage" included within the ".products- completed operations hazard ". (t) The insurance afforded to the vendor is subject to the following additinnai exclusions: This insurance does not apply to (a) "Bodily injury" or "property damage" for which the vendor is obligated to pay damages by reason of the assumption of liability Ina contractor agreement, This exclusion does not apply to liability for damages that the vend orwouid have irr the absence of the contract or agreernent, (b) An express warranty unauthorized by you; (c) Any physical or clhernical change in the product made intentionally by the vendor; . (d) Repackaging, except when unpacked solely for the purpose of inspection, demonstration, testing, or the substitution 'of parts under instructions from the manufacturer, and then . repackaged in the original container, Page 42 of 24 (e) Any failure to make such mspectlons, adjustments, .tests or _ servicing as the vendor has agreed to make : or normally undertakes to rnake in the usual course of business, in .connection with the distribution or sale of the products; (f) Demonstration, installation servicing. or :repair operations, except suchh operations performed at the vendor's premises in connection with the sale -of the product; Lg) Products; which, after distribution or sale by you, have been labeled or relabeled . or used as a container, part or ingredient of any other thing or substance by or far. the vendor, or (h) "Bodily injury„ or • "property . damage " arising out of the sole negligence of the vendor for its -own acts or orrrissions or.those of. its employees or anyone else. acting on its behalf, However, this exclusion does not apply to: (i) The exceptions contained in Subparagraphs (d) or (€); or (H) Such inspections, adjustments, tests or servlcing as the vendor has.agreed to rrsake ar normally undertakes to make in the usual GOLErS Ol business, - in connection v&h the distribu#ion orsale of the products, (2) This insurance does not apply to any insured ,person or organlzatian from: whom you have acquired such products,. or any ingredient, part or container, entering into, accompanying or containing such products. b. Lessors Of Equipment {i) Any person or organization from whom you lease equipment' but only with :respect io their liability .for "bodily injury ". "property damage" or "Personal and advertising injury. " - caused, in w1hole or In part, by your maintenance, operation or use of equipment leased to you by such person or. organization. Farm SS D C8 0;4 05 BUSINESS LIABILITY COVERAGE FORM (2) With respect to the insurance of €circled e. permits Issued By State Or Pol ical to these 'additional insureds, this Subdivisions insurance does not apply to any (9) Any state or political subdivision, but "oocurrence" which takes place after only with respect ..to' operations you cease to {ease that equipment, performed by.you or on your behalf €or c. Lessors of Land Or Premises which the state or political subdivision (9) Any .person or organization from has issued a permit._ wham you lease land or premises., but (Z) With respect to the insurance afforded . . only with respect to liability arising out to . these. additional insureds, this of the ownership, maintenance or use insurance. does not apply to: of that part of the land or premises (a) . "Bodily injury" " property damage" Co leased t�ryou. or : "personal and advertising Ln (2) With respect to the insurance afforded injury" arising out. of operations o to these additional Insureds,. this performed for the state or insurance does not apply to: municipality; or CD (a) Any "occurrence" which takes (b). "Bodily injury" or "property damage"' place after you cease to lease that included within the "products - land or be a tenant in that completed operations hazard '. CD premises;. or f. Any -other Party (b) Structural alterations., new (1) Any other person or organization who construction or demolition is not an insured under Paragraphs a. 0 operations performed by or on through e. .above, but only - with Ln behalf of such person or respect to liability for "bodily injury", organization. "property - damage" or "pemDrial and d. Architects, Engineers Or Surveyors advertising injury" caused, in whole or (1) Any architect,. engineer, orsurv°yor, but in part, by your acts or omissions or only w respect to. liability for "bodily the acts or oitfr missions of those acting injury", "property damage" or "personal on your behalf: — and advertising injury" caused, in whole (a) In the performance of your — or in part,: by your acts or amissions or ongoing operations; the acts or orrnissions of those acting on b () in connection with your premises vourbehalf owned by or rented to you; or (a) In connection with your premises-, (c) In connection with "your work" and or included within the "products- (b) in the performance of your completed operations hazard ", but _ ongoing. opemt.ions performed by only if You or on your behalf. (i.) The written contract or written — (2) With respect to the insurance afforded agreement requires you to to these additional insureds, the provide such coverage to fallowing additional exclusion applies: such additional insured; and Ti3C5 IR5l1.Car1Ce does not apply to (ii) This Coverage Fart provides — "bodily injury", "property damage" or coverage for "bodily injury" or "personal and advertising. injury„ "property darnage" included arising out of the rendering of or the within. the "products - ""'� failure to render any professional completed operations hazard„ services by or for you, including. (Z) 1rt4th respect to the insurance afforded . ° (a) The preparing, approving, or to- these additional insureds, this failure to prepare or approve, insurance does not applyto: maps, shop drawings, opinions, "Bodily injury ", "property damage" or --- reports, surveys, field : orders, "personal and advertising injury" change orders, designs : o.r ar;sing o :,t of the renrieTinn of nr the drawings and speclfications; or failure to render, any profiessianal (b) 8bpervisory, inspection. architectural, engineering orsurveying architectural or engineering services, inciudiFig: activities. Form SS DD 08 04 05 Page 13"24 BUSINESS LIABILITY.GOVERAGE FORM (a) The preparing, approving, or failure to prepare or approve, reaps, shop drawings, opinions-, reports, surveys, field orders, change orders, designs or drawings and specifications, or (b) Supervisory, inspections architectural OF engineering. aGtivitl P.S_ The limits cf insurance that apply to additional insureds are desdribed in Section D, -- Limits Of Insurance., How this insurance applies when other insurance is available to an additional insured -is described in the Other Insurance Condition in Section E. ° Liability And Medical Expenses. General Conditions. No .person or organization is an insured with respect to the conduct of any current or, past partnership, joint venture or limited liability company that is not shown as a Named lnsured In the Declarations. D. LIABILITY AND MEEiiCAL EXPENSES LIMITS OF INSURANCE 9. The Most We Will Pay The Limits of Insurance shown in the Declarations and the rules below fix the most we will pay regardless of the number of; a. Insureds; b. Claims. made, or "suits" brought; or c. Persons or organizations making claims or bringing "sulfs "_ 2. Aggregate Limits The most we will pay for: a. Damages because of "bodily injury" and "property damage" included in the "products- completed operations hazard" is. the Products- Completed Operations Aggregate Limit shewn in the Declarations. b. Damages because of all other "bodily injury" "property damage" or °personal and advertising injury ", including medical expenses, is the General Aggregate Limit shown in the Declarations. INS General Aggregate L- ii. applies separately to each: of your "locations" owned by or rented to you. "Location" means premises involving. the same. or oonnectinu lots, or premises whose connection is interrupted only by a street, roadway or right- cif ;way. of .a railroad. Page 14 ref 24 . This General Aggregate limit does not apply to "property damage' to premises while rented to you or temporarily occupied by you with permission of the owner, arising out of f-ie, lightning or explosion. 3. Each Occurrence Limit Subject to 2.a: or lob above, whichever applies, the ma9t we will pay for the sum of all damages because of all 'bodily injury" "property damage" and medical expenses arising out of any one "occurrence" is the Liability and Medical ExRenses Limit shown in the Declarati€ ris. The most we will pay far all medical expenses because of "bodily injury' sustained by any one person is the Medical Expenses Limit shown in the Declarations. 4- Personal And Advertising Injury Limit Subject to 2.b. above; the most we will pay for the sure. of ail damages because of all "personal and advertising injury" sustained by any one person or organization is the Personal and - Advertising 1nj4ry Limit shown in the Declarations. S. Damage To premises Rented To You Umit The Damage To Premises Rented To You Limit Is the most we will pay under Business Liability Coverage for damages because of "property damage" to any one .premises,. while rented to you, or in the case of damage by fire, lightning or explosion, while rented to you or temporarily occupied by you with permission of the owner. In the case of damage by fire, lightning or explosion, the Damage to Premises Rented To You Limit applies to all darnage proximately caused by the, sarne event, whether such damage results from fire., lightning or explosion or any combination of these. S. How Limits Apply To Additional Insureds The most we wit] pay on behalf of a person or organization who is. an additional insured underthis Coverage.Part.is the lesser of. a, The limit 7of insurance specified in a written contract, written- agreement or permit issued by a state : or political subdivisions; or b. The Limits of Insurance shown in the Declamburis. Such amount shall be a part of and not in . addition to the Limits of Insurance shown in the Declarations and described in this Section. Form -SS 00 Ot 04 05 LO N Q r-f a d. c� a L. E. If more than one limit of insurance under this policy and any endorsements attached thereto applies to any claim car, °`suit", the most we will pay under this policy and the endorsements is the single highest limit of liability of all caverages applicable to such claim or "suit.. However, this paragraph dries not apply to the:Medical Expenses limit set forth. fn Paragraph S. above_ The limits of insurance of this Coverage mart apply separately to each consecutive annual period and to any remaining period of less than 12 months; starfing with the beginning of the policy period shown in the Declarations, unless the policy period is .extended after issuance for an additional period of.less than 12 months. In that case, the additional period will be deemed part of the last preceding period for purposes of determining the Limits of Insurance. LIABIUTY AND MEDICAL EXPENSES GENERAL CONDITIONS t. Bankruptcy Bankruptcy or insolvency of the insured or of the insured's estate will not relieve us of our obligations underthis Coverage Bart, 2. Duties in The Event Of Occurrence, Offense, Claim Or Suit a. Notice Of Occurrence Or Offense You or any additional insured must see to it that we are notified as .soon as practicable of an "occurrence'. or an offense which may result in a claim. To the extent possible, notice should include: (1) How, when and where the "occurrence' or offense took place;. (2) The names and addresses of any injured persons and witnesses; and (3) The nature and location of any injury or damage arising out . of the " occurrence" or offense. b. Notice Of Claim if a claim is made or "suit" is brought against any insured, you ar any additional insured must: (1) immediately record the- specifics of the Claim or "suit and the date received; and (2) Notify us as soon as practicable. You or any additional insured mast see to it that we receive a written . notice of the claim or "suit" as soon as practicable. C. Assisrarice And Cooperabun 0 T irie Insured You and any other invatved insured must: Farm SS 00 04 04 05 BUSINESS UABILITY COVERAGE FOR{t+l. (1) Immediately send as copies of any demands; notices, summonses Of Legal papers received in connection with the claim or 'suit "; (2) Authorize us to, obtain records. and other information; (3) Cooperate with us in the irivestigati€ n, settlement of the claim- or defense against the "suit'; and (4) Assist us, upon our request, in the enforcement of any right against any person or organization that may be liable to the insured because of injury or damage to which this insurance may also apply, d. Obligations At The Insured's Oven Cost No insured will, except at that insured's own . cast; voluntarily make a payment, assume any obligation, or incur any expense, other than for first aid, without our consent; e. Add €iional Insured's Other Insurance If we cover a claim or "suit" under this Coverage Part that may also be covered by :other insurance available to an additional insured, such additional insured must submit such claim or "suit" to the other insurer for defense and indemnity. However, this provision does not apply to the extent )fiat you have agreed in a written - co ntract. written agreement or permit that this insurance is primary and non - contributory with the _additional insureds own insurance, f. Knowledge Of An Occurrence, Offenses Chiral Or Suit Paragraphs a. and b. apply to you or to any additional insured only when such "occurrence ", offense, claim or "suit" is known to: (1) You or any additional .insured. that is an iRdividual; (2) Any partner; ,lf you or an additional insured is a partnership; (3) Any manager, if you ar an additional insured is a limited liability company; (4) any "executive officer" or insurance manager, if you or an additional Insured is a corporation', (5) Any trustee, if you or an additional insured is a trust; or (5) Any elected or appointer) official, if you or an 7additionarl insured is a political subd ivision or public entity. Page 15 of 24 BUSINESS l_lABIL.ITY COVERAGE FORM This Paragraph f. applies separately to you and any additional insured_ 3. Financial Responsibility l..aws a. When this policy is certified as proof. of financial responsibility for the future under the provisions of any motor vehicle financial responsibility faw, the insurance provided by the policy for "bodily injury" liability and "property damage" liability will comply with the provisions of the law to the extent of the coverage and ffrriits of insurance required by that law. b. With respeet to "motde equipment" to which this. insurance applies, we will provide any liability, uninsured motorists, underinsured motorists, no- fault or other coverage required by any motor vehicle law. We will provide the required limits for those coverages.. 4. Legal Action Against Us No. person or organization has a right under this Coverage Farm: a. To join us as a party or otherwise bring us .into a "suit" asking for damages from an insured; or bz To sue us on this Coverage Form unless all of its terms have been fully complied with . A person or organization may sue us to. recover on an agreed settlement or on a. final judgment against an insured; But we will not be liable for damages that are not payable under the terms of this insurance or that are in excess of the applicable limit of insurance. An agreed settlement means a settlernent acid release of liability signed by us the insured and the claimant or the claimant's .legal representative- 5. Separation Of Insureds Except with respect to- the Limits. of. Insurance, and any tights or duties specifically assigned in .this policy to the first .Named insured, this insurance applies -. a. As if each Named Insured were the only Named Insured; and b. Separately to each insured against whom a claim is made or "suff" is brought 6. Representations a. When You Accept This Policy By accepting this pocky, you agreei (1) The statements in the Declarations ark ac uraie and t:omplete; (2) Those statements are ]cased upon representations you made. to us; and Page 16 of 24 -. (3) We have issued this policy in reliance upon your representations. b, .Unintentional Failure To Disclose Hazards if unintentionally you should fail to disclose all hazards ,relating to the conduct of your Business at the inception date . of this Coverage :Fart, we. shall not deny any Coverage under this Coverage Fart because of such failure. 7. Other trisurance If other valid and collectible insurance is available for a lass we coven under this 0overage Part, our obligations are limited as follows: a. Primary Insurance This insurance is primary except when t). below applies. If raiser insurance is also primary, we will share with_ all that other . insurance by the method described in c. heiowr. b. Excess Insurance This insurance is excess over any of the other insurance, whether primary, excess, contingent or on any.other basis: (1). Your Work That is Fire, Extended Coverrage,. Builder's Risk, Instalia€izm disk or sirnilar coverage for "your +_vork "; (2) Premises Rented To -Yoe That is fire, lightning or explosion' insurance for premises rented to you or temporarily occupied by you with. permission of the owner (3) tenant Liability That is insurance purchased by you.to cover your liabiiity as a tenant for "property damage" to. premises rented to you or temporarily occupied by you viith permission of the owner; (4) Aircraft, Auto Or Watercraft If the Iriss arises out of the rna rden4nce or use of aircraft, "autos" or waZarrcraft to the extent not subject to Exclusion g. of Section A. — Coverages. �.. IM 7opert Damage To Lirl.l t'TY ed Equipment Or Use Of Elevators If the lass 'arises out of "property damage" to borrowed equipment or the use of elevators to the extent not subject to Exclusion k. of Section A. G�verages, Farm SS OD 08 0 4 06 BUSINESS LIASIUTY COVERAGE FORM (6) When You Are Added As : An When this insurance is excess over other Additional Insured To Other irisumnce, we w1il pay; only our share of Insurance the amount of the loss, if any, that That is other insurance available to exceeds the sum of_ you covering liability for damages (1) The total amount that all such tither arising out . of the premises or insurance would pay for the loss in the operations, or products and Completed absence of this. insurance; and. operations, far V+rhiclt you have been (2) The total of all deductible and self added as an additional insured by that insured amounts under all That other irtsufanee;. or insurance. (i) When You Add Oilers as An We vwlf share the remaining loss., if any, with N Additional Insured T° This any other insurance that is not described in N Insurance this Excess Insurance provision and was .not C, That is other insurance available to an - bought specrrzcally to apply in excess of the additional insured. Limas of insurance shown in the However, the following provisions Declarations of this Coverage Pat apply to other insurance available to c. Method Of Sharing any person or organization who is an ff. all the other insurance permits additional insured underthis Coverage, corrtributicin by equal shares; we wilt fQflow Part this method also_ Under this 'approach, (a) Primary Insurance When each insurer contfibutes equal amounts CD. Required. By Gontract until it has paid its applicable .limit of This insurance is primary if yarn insurance. or none of the lass rerriains, have agreed in a written contract, whichever comes first, written agreement or permit that if any of the other insurance does not perrriit this insurance be primary. If other contribution by equal shares, we will —_ insurance is also primary; we. will contribute by limits_ Underthis method, each - share with all that other insurance insurer's share is based on the ratio of its by the me €hart described in d. applicable limit of insurance to the total — belowr applicable limits of insurance of all insurers. w (b) Primary And Non- Contributory 8 Transfer Of Rights Of Recovery Against _ To Other Insurance When Otters To Its = Required By Contract a Transfer Of (tights Of Recovery If you have agreed in .a wr "rtten if the insured has rights to recover all or contract, 'written agreement or part of any payment, including permit that this insurance is Supplementary Payments, we have made . primary and non-contributory with under this Coverage Part, those rights are . the additional insured's own transferred, to us. The insured must do insurance„ this insurance is nothing `afie.r toss to impair them At our — primary and we will . not seek request, the insured will bring "suit" or contribution from that other transfer those rights to us and help us insurance. enforce them. This condkion does not — Paragraphs (a) and (b) do not apply to apply to Medical Expenses Coverage. other insurance to which the.addit anal b. Waiver Of Rights Of Recovery (Waiver insured has been added as an Of Subrogation) — additions[ Insi�req. : 'When if the insured has waived any rights of = this insurance is excess, we. wul recover} against am ^erson or have no duty .under this Coverage Part to organization for all or ,par# of any payment, defend the insured against any "s.uif" if any including Supplementary Payments, we other insurer has a duty to defend the -have made. under this Coverage Part, we insu ed against that "suit". If no other also waive that right, provided the insured inc,�rar rja €pnrifi wa rnrill 11nriPLr+n1on #n tin waived 21eii' iighlLs Of ra;oveiy against so, but we. will be.entitled to the insureds such person or organization in a contract, tights against 611 those other insurers- agreement or permit that was executed prior to the injury or damage. Form SS 00 08 04 05 Page 17 of 24 BUSINESS LIABILITY COVERAGE FORM .F. OPTIONAL ADDITIONAL. INSURED 3. Additional[ Insured - Grantor Of Franchise COVERAGES 1MO IS AN INSURED under Section C. is If li ted or shown as applicable in the Declarations, amended to include as an additional insured one or more of the following Optional Additional the persons) or organization(s)..shown in the Insured Coverages also apply. When any of these Declarations as an Additional Insured - Optional Additional Insured Coverages apply, Grantor Of Franchise, but only with respect to 6.. (Addif anal lnst�reds When Require their liability as grantor of fi anchise to YOU, by.Wrirttten Contract; Mitten Agreement or Permit) 4. .Additional. Insured - Lessor Of Leased Of Section C.. Who Is An Insured., does not apply. Equipment to the .person or organization shown in the a. VvHO IS AN INSURED under Section G. is Declarations_ These coverages are subject to the amended to include as an additional . terms and conditions applicable to Business insured the persons) or organizatilon(s) Liability Coverage in this policy, except as shown in the Declarations as an "Additional provided below: Insured - Lessor of Leased. Equipment, 1. Additional Insured- Designated Person Or but only with respect to liability for "bodily Organization injury" "property damage" or "personal WHO IS AN INSURED under Section C: is and advertising injury" caused, In whole or amended to include as an additional insured in part, by your maintenance, operation or , the person(s) or organizatloa(s) shown in the use of equipment leased to you by such Declarations, but only with respect to liability persort(s) or organization(s). for ".bodily injury" "properly darnage" or bs With respect to the insurance afforded to „personal and advertising injury" caused, in these addkionat insureds, this insurance whole or in part, by your,acts or orissions or does not apply to any °occurrence" which . the acts or omissions of those acting on. your takes .place after you cease to lease that . behaft equipment a. In the performance of your ongoing 8. Additional Insured - owners or Other operations; or Interests from Whom Land Has Peen ba In connection with your premises owned Leased by or rented to your a. 1NHO 1S.AN INSURED under Section C. is. 2. AcidttipinaE Insured Managers Or Lessors amended to include as an additional OfPrernises insured the person(s) or orgarizaticn(s) shown in the Declarations as an Additional a. iltll-10 iS AN INSURED under Section C. is Insured - Owners Or Other Interests From amended to include as an additional insured Viborn Land Has Peen Leased; but only the person(s) or organizafion(s) shown in the with respect to liability arising out of the Declarations as an Additional Insured - ownnership, maintenance or use:ofthat part Designated Person Or 07 ganization; Out onl r of the land leased to you and shown in the with respect to Lability arising out of the Declarations. ownership, maintenance or use of that part of b: Vy4th respect to the insurance afforded to - the premises leased to you and shown in the Declarations. these.. additioral insureds, the following additional exclusions apply: b. With respect to the insurance afforded to these additional insureds, the following Tl3is insurance does not apply to: additional exclusions apply: (1) Any "occurrence" that takes place This insurance does not apply to: after you cease lo lease: that land; or (1) Any "occurrence" 'which take place. (2) Structural alterations, new after you cease to be a: tenant. in that construction or demoliljcrrrppera tians premises; or performed by or on. behalf of such person or organization. (2) Structural alterations, Fled construction or demolition operations 6, Additional Insured - state Or Political performed by or on behalf of such Subdivision - Perrriits person or organization, a. WHO IS AN INSURED under. Section C. is 4EA]F+eucu EV as an cad,arutrr�i, Insured the state or political subdivision shown in the Declarations as an Additional Page 18 of 24 Form SS .00 08 04 05 l3. rn Ln N o: Insured — State Or Political Subdivision Permits, but only with respect to operations performed by you. or on your behalf for which the state or political subdivision has issued a .permit; With respect to the insurance afforded to these additional insureds, the following additional exclusions apply: This insurance does not apply to (1) "Bodily injury', " property damage or "personal, And advertising lajuryh arising out of operations performed for the state or municipality; or (2) "Bodily injury" or "property damage ". included in the "product - completed operations" hazard. T. Additional Insured —Vendors a. WHO iS AN INSURED under Section C. is amended to include as an additional insured the person(s) or organization(s) (referred to below as vendor) shown in the . Deelaratlons as an Additional Insured - Vendor, but only with respect to "bodily . injury" or "property damage" arising out of - "your products" which are distributed or sold in the regular course of the vendor's business and only ifi this Coverage' Part provides coverage for. "bodily injury' or "property damage" included vvithin the "products - completed. operations hazard ". b. The insurance afforded to the vendor is subject to the following additional exclusions: (1) This insurance does not apply to: (a) "Bodily injury" or " property damage" for which the vendor is obligated to pay damages by reason of the assumption of liability in a contract or agreement. This exclusion aloes not apply to liability for :damages. that : the vendor would have in the absence of the contract or agreement; (b) Any express warranty unauthorized by you, (c) Any physical or chemical change in the product made interrberrally by tt',e ;vendor (d) Repackaging, unless unpacked solely for the purpose of inspection, demonstration, fesling,. or the substitution. of parts under instructions from the manufacturer, and ,then repacka..ge . in the original container, SU$INESS LIABILITY GOVERAGE FORM (e) Any failure to make such inspections, adjustments, tests or servicing as the vendor I as agreed to make or normally undertakes to make in the usual course of . business, in connection With the distribabo,n or sale. ofthe products; (f) Demonstration, installation, servicing or repair. operations., except such operations performed at the vendors premises In connection with the sale of the product, (g) Products M, ich, after distribution or sale by you, have been labeled or relabeled or used. as a container, part or ingredient of any other thing or substance by or for the vendor, or (h) "Bodily injury" or "property . damage" arising out of the sole negligence of the vendor for its own acts or ornissions or those of its employees or anyone. else acting on its. behalf. However, this exclusion does not apply to: (I) The exceptions contained €n Subparagraplls (d) or (f)-,. or (ii) Such lnspections, adjustments, tests or.servicing as the vendor has agreed.to make or normally undertakes to rnake in the usual course of buslness; in correction with the distribution or sale of the products. (2) This insurance does not apply to arty insured person or organization from whom you have acquired such products, or any .intgredierit, past or container, entering into, accompanying_ or containing such product&. S. Additional Insured - Controlling Interest WHO IS AN INSURED under Section C is amended to include as an additional insured the person(s) or organ zation(s).shown in the Gclamflons as ail rIiudiffonai Insured Controlling Interest, but only With respect. to their liability arising out of a, Their finan al control of you; or h P manses they own, maintain or 'r-'tntrol white you lease or Occupy these premises. Faun 5S 00 € 3 04.05 Rage 19 of 24: BUSINESS LIABILITY COVERAGE FORM This insurance does not apply to structural The limits of insurance that apply to additional alterations, new construction and demolition insureds are described in Section D. — Limits Of operations performed by or for that person, or Insurance. argon €nation. Hove this insurance applies when other ;insurance 9. Additional Insured -= Owners, Lessees Or is available to an additional insured is described in Contractors — Scheduled Person Or the Other Insurance Condition in Section E. - organization Liability And Medical Expenses General ae MO IS AN INSURED under Section C. is Conditions. amended -to include as an additional G. LIABILITY AND MEDICAL :EXPENSES .insured the person(s) or organizatiorl(s) DEFINITIONS shown in the Declairations as an Additional insured — Owner, Lessees Or Contractors, I • ".Advertisement" means the widespread public but only with respect to liana ity for "bodily dissemination of information a= i -mages that in }ury ", "property damage" or "personaf has the purpose of inducing the sale.of goods, and advertising injury" caused, in whose or products or seivices through: in part, by your acts or omissions or the a_ (l) Radio; acts- or omissions of. those acting on your (2) Television.- (3) billboard; (f) la the performance of your ongoing (4) Magazine; operations for the additional irisured(s); or (5) Newspaper; (2) In connection with "your work" b: The Internet, but only that part of a wab. performed for that additional insured site that is about goods, products or and included. within the "products- services for.the purposes of indud €ng the completed operations. hazard ", but sale of goods, products or services. or. only if this Coverage Part provides c. Any other publication t,nai is given coverage for "bodily injury" or widespread public distribAo s. IT damage" included within the However, "advertisermenr does nct.include: "products - completed operations hard ": a. The design, printed material, in=ormation or images contained in, on or upon the b, With res eel to the insurance afforded to p packaging or labeling Of' any goods or then additional msureris, this insurance products; or does not apply to "bodily injury ". "property b An interactive Conversation between or damage' or. "personal an advertising injury" arising out of the rendering of, or among persons through a computer network. the failure to render, any .professional 2. "Advertising idea" means any 'idea for an architectural, engineering or surveying "advertisement . services, including: ;t_ "Asbestos hazard" means ar, exposure or (1). The preparing, approving, or failure to threat of exposure to the actuai or alleged prepare or approve, maps, shop - properties of asbestos and includes the mere drawings, opinions, reports, surveys, presence of asbestos in any form. field orders, change orders, designs:or 4. "Auto" means a laird motor vehicle, trailer or drawings and specifications; or semi - trailer resigned for travel on public (2) Supervisury, inspection; architectural roads, including any attached machinery or or engineering activities. equipment. But "auto" does not include 10. Additional insured — Co -owner Of Insured "rriobile equipment . Premises S. "Bod €ly:injury"means physical; WHO IS AN INSURED under - Section C, is a. Injury;: amended to include as an additional insured b. Sickness or the person(s) or Organization(s) shown in the c. Disease Declarations as an .Additional Insured — Co- Owner Of Insured Premises, but only with sustained Dy a person and, if sris ng out of the: r� tr,z-ir [in -ii fIs nS- vo -n nPr of the above, mental anguish or death ai any time. premises shown in the Declarations. B. "Coverage territory" means Page 20 of 24 Form SS 00 08 04 05 L. r-r CD d e ry c� m a. The United States of America (ncluding its territories and possessions), Puerto Rico and Canada, b. Intemational waters or airspace, but only if the injury or damage -occurs in the course of travel or transpGrta ion between any places included In a., above; c. All either parts. of the world if the injury or- damage arises out of (1) Goods or products made or sold by you in the terfitory described in a. above; (2) The activities of a - person whose home is in the territory described in a. above, but is away for a short.iime on your business; or . (3) "Personal and advertising injury" offenses that take place through the Intemet or similar electronic means of communication provided the insured's responsibility to pay damages is deterrrrined in the United States of America (including its territories and possessions), Puerto. Rica or Canada, in a "suit" on the merits according to the substantive- law in such 'territory, or in a settlement we agree to- 7. "Electronic data" means information, facts or programs, ai. Stored as or on, b. Created or used on, or c. iransmittedtoorfrorn comptiter software, Including systems and applications software, hard or floppy disks, CD-ROM, tapes; drives, cells, data processing devices or any other media which are used with electronically controlled equipment. 8. "Employee" includes a "[eased worker". "Employee" does not include a "temporary worker". 9. "Executive officer' means a person. holding any of the officer positions created by your charter, constitution, by- -laws or any Other similargoveminrg document'. 10. '"Hostile fire " means one -which becomes uncontrollable or breaks out from where if was intended to be. 1 i. "Impaired property" means tangible property, other than "your produr ' or "your work ", that -cannot be used or is less useful because: a. It incorporates "your product°. or "your worts" that is Itnown or thought to be defective, deficleMinadequate or dangerous; or Form SS 00 08 04 05 BUSINESS LIABILITY COVERAGE FORM b. You have failed to fulfill the terms of. a contract or agreement, if such property can be restored to use by a. The repair, replacement, adjustment or removal of "your product" or "your wont "; or b_ Your fulfilling the terms of the contract or agreement. 12.. "Insured contract" means, a. A contract for a lease of premises. However, that portion of the contract :for a lease of premises that indemnifies any person or organization for damage by fire, iightning or explosion to premises while rented to you or temporarily occupied by you with permission of the owner is subject to the Damage To Premlses Rented To You limit described in Section Liability and Medical Expenses Limits of Insurance. b. A sidetrack agreement, c. Any easement or license agreement, including an easement or license agreement in connection wit[i construction or demolition operations on or within 50 feet of a railroad; d. Any obligation, as required by ordinance, to indemnify a municipality, except in connection with work for a municipality; +e. An elevator maintenance agreement; or L That Dart of any other contract or agreement pertaining to your : business (Including an indemnification of. a municipality in connection with work performed for a municipality) under which you assume the tort liability of another party to pay for "bodily injury' or "property damage" to -a third person or.organization, provided the "bodily injury" or „properly damage" is.caused, in whole or in part, by you or by those acting on your behalf. Tort liability means a liability thatwould_be Imposed by lave in the absence of arty contract or agreement. Paragraph f, includes. that part of any contract or agreement that indemnifies_ a rallroad ',or FSbc"uiiy injury" Gr "Prweifty damage" arising out of construction or demolition operations within 50 feet of any railroad property and affecting any railroad bridge or trestle, tracks, read -beds funnel, underpass or crossing. However, Paragraph f.: does not iricluae that part of any contract or agreement: Page 21 of 24 BUSINES$ LIABILITY COVERAGE FORM (1) That indemnifies an architect, engineer or surveyor- for injury or damage arising out of. (a) Preparing: approving or. failing to prepare or approve maps, shop drawings, opinions, reports, surveys, field orders, change orders; designs or drawings and specifications; or (b) Giving directions or instructions, or failing to give thi=m, ifthat.is the primary cause of the . injury or damage; or j2) Cinder whiich the insured, if an architect, engineer or surveyor, assumes liability for an injury or damage arising out of the insured's rendering or falluro to render professional services, including those listed in (f) above and supervisory, inspection; architectural or engineering activities, 13. "Leased worker" means a person leased to you by a labor leasing firm under an agreement between you and the labor leasing firm; to perform duties related to the conduct of your business. "Leased worker' does not include a "temporary worker"._ 14. "Loading or unloading" means the handling of properly. a.. After it is moved from the place where it is accepted for movement into or onto an aircraft, waiercra ft or "a LAO"; b. While It is in or on art aircraft; watercraft or "actor, or c. Vlfhile it is being moved from an aircraft, wateromift or ".auto" to the place where it is finally delivered; but "loading pr unloading" does not include the movement of property by means of a mechanical device, other than a hand truck, that is not attached to the aircraft, watercraft or "auto"_ M "Mobile equipment" means any of the following types of land vehicles, including any attached. machinery or equipment,., a. Bulldozers, faun machinery, forklifts and other vehicles designed for use_prindpally off public rorads; b. Vehicles maintained for use .solely on or next to premises you own or rent; c. Vehicles that travel. on crawler treads; d. Vehicles, whether self - propelled or not can wNch are permanently mounted: (1) Pointer cranes, shovels, loaders, diggers or drills; or (2) Road construction or resurfacing equipment such as graders, scrapers or rollers; e. Vehicles riot described in a., b.; c., or. d. above that are not self - propelled and are maintained primarily to provide mobility to permanently attached equipment of the following types:. (1) Air compressors, pumps and .. generators,. including spraying welding, building cleaning, geophysical exploration, lighting and well servicing equipment; or (2) Cherry pickers and similar devices used to raise or lower workers: f, Vehicles not described in a.; b., c.r or d, above maintained primarily for purposes other than the transportation of persons or cargo. However, se.3f= propelled vehicles: with the following types' of permnently attached equipment are not ".mobile equipment" but will be .considered "autos' (i) Equipment, of at least 1,000 pounds gross vehicle weight, designed primarily far; (a) Snow removal-, (b) Road maintenance: but. not constnuction or resurfacing; or (c) Street cleaning; (2) Cherry pickers and sirnllar devices. mounted on automobile or truck chassis and used to raise or lower workers; and .(3) Air compressors, pumps and generators, including spraying; welding, building cleaning, geophysical exploration, lighting and well servicing equipment. 16. "Occurrence" means an accident, including continuous or repeated exposure to substantially the same general harmful conditions. 17. -Personal and advertising injury" means injury, including consegtuential "bodily Injury ", arising out of one or more of the following offenses: a. False arrest, detention or imprisonment, >b. Malicious prosecution; Wage -�2 of 24 Form SS L+'0 08 04 05 Ln 4n Q BUSINESS LIABILITY COVERAGE FORM c: The wrongful eviction from, wrongful entry Wdrk that may need service, maintenance, into, or invasion of the right of private correction, repair or replacement, but ocoupancy. of .a room, dwelling or which is otherwise complete, will be premises that the person occupies, treated as completed. committed 'by or on behalf of its owner, The "bodily injury" or ",property damage" landlord or lessor, must occur away from premises you own . d. Oral, , written or electronic publication of or rent, unless your business includes the material that slanders or libels a person or selling, handling or distribuiiort of "your organization or disparages a person's or products' for cansumption on premises you organization`s goods, products orseryices; own or rent. e. Oral, . written or .electronic publication of b. Does .trot include "bodily injury" -or material that violates a person's. right of "property damage" arising out of privacy; {1) The transportation of property, unless f.. Copying, in your "advertlseritant# , a the injury or .damage arises out of a person's or organization's "advertising condition in or.on a vehicle not owned . idea" or style of "advertisement "; ar operated by you; and that condition g, Infringement of copyright, slogan, or title of -was created by the "loading or any literary or artistic work, in your unloading" of that vehicle by any "advertisement "; or insured; or h. Discrimination or humiliation that results in .(2) The existence of tools, uninstalled injury to the feelings or reputation of a equipment or abandoned or unused natural persotr, materials. 18. '"Pollutants" rneans any said, liquid, gaseous or 20. "Property damage" rnearis: t:he mal irritant or contarriinant, including smoke, a. Physical injury to tangible property, vapor, soot, fumes, acids, alkalis, chemicals and including all resulting loss of use of that waste. Waste includes materials to be recycled, property;_ All tacit loss of -use shall be reconditioned orreclaimed. deemed to occur at the time of the . 15; "Products- completed operation$ hazard'; physical injury that caused it; or zL Includes all "bodily injury -' and "property 'b. Lass of use of tangible property that is not, damage occurring. away from premises physically injured, All such loss of use you own or resit and arising out of "your shall be deemed to occur at the time of produGr or "your work" except; "occurrence" that. caused its (1) Products that are still in your physical As used in this definition. "electronic data" is possession; or not tangible property. (2) Work that has not yet been completed 21: "Suit" means a civil proceeding in which or abandoned_ However, "your work" damages because of "bodily injury'. "property will be deemed to be completed at the damage" or "personal and advertising injury" earliest of the following times:. to which this insurance applies are alleged. (a) When all of the work called for in "Suit'. includes: your contract has been completed. a. An arbitration proceeding in which such (b) When all of tha work_ to be. done at damages are claimed and to which the the job site has been. completed if insured :must subrift or does submit with your contract calls for work at our consent; or more than one job site_ b. Any other alternative .dispute resolution (c) When that part of the work done at proceeding in which such damages are . a job site has been put to its claimed and to which the insured submits `. intended use by any person or 'l ith our'conseat. organization other than another 21 "Temporary worker" means a person. who is contractor or subcontractor furnished to you to substitute for a permanent Working on the saute project. °;employee" on leave or to meet . seasonal or short-term workload conditions. 23. "Volu.ntesrworker" rneans a person who: a. Is not your "employee' ; For m SS 00 08 D4 05 Page.23 of 24 SUSINESS UAi3iLITY COVERAGE FORM b. Donates his or hervork; c. Acts at the direction of and within the scope of duties determined by you; and dr Is not paid a fee, salary or other Ompertsatirrn by you or anyone else for their work performed for you. 24. "Your product a. Means. (1) Any ` -g oods or products, other-than real property,. manufactured, sold, handied; distributed or disposed of by: (a) Yoid; (b) Others trading under your name: or (c) A person : or organization whose business or .assets you have acquired ; :and (2) Containers (other than vehictes ); materials. parks or equipment furnished in. connection with such goads or products, b. Includes., (1) Warranties or representations made at any time Mth respect to'tne fitness, quality, durability, perfprmance.pr use of your product ".and Page 24 of 24 (2) The providing of or failure to provide warnings or instructions. c.= Does net include Vending machines or other property rented to or located for the use of others but riot sold. 25. "Your Work ", a. Means; (1) Work or operations performed by you gran your.behalf and (2) Materials, parts or . equip merit furnished in connection with such work or operations. L_ Includes; (1) Warranties or representations made at any time with respect to the fitness; quality, durability, performance or use of "your work and (2) The providing of or failure to provide warnings or Instructions, MEMORANDUM TO: Mayor and City Commissioners FROM: Rafael Ballestero, Deputy Director of Construction Victor Majtenyi, Interim Environmental Services Director THROUGH: Louie Chapman, Jr., City Manager DATE: May 21, 2013 SUBJECT: AGENDA ITEM 8.G. - REGULAR COMMISSION MEETING OF JUNE 4, 2013 CONTRACT CLOSEOUT (C.O. NO 2XINAL)FOSTER MARINE CONTRACTORS, INC. ITEM BEFORE COMMISSION This item is before the Commission to approve a Contract Closeout (CO No. 2 /Final) in the net deduct amount of ($4,546.00) and a final payment amount of $40,432.25 to Foster Marine Contractors, Inc. for completion of the Drainage Swales FY 12 - Lake Ida Proj ect # 12 -010. BACKGROUND On November 6, 2012, Commission approved a contract award in the amount of $84,445.00 to Foster Marine Contractors, Inc. for the construction of roadside swales along N.W. 7th and 12th Streets and N.W. 3rd and 5th Avenues in the Lake Ida Neighborhood. On November 20, 2012, Commission approved a contract line item amount correction/reduction of $4,990.00; and a total contract amount reduction from $84,445.00 to $79,455.00. On April 26, 2013, the Finance Director approved Change Order No. 1, in the amount of $3,685.50, for additional irrigation work to extend the irrigation into the previously paved areas; which were converted to grass swales. Change Order No. 2 /Final includes plus and minus quantity adjustments and liquidates the residual from contingency allowances. All changes for the project are itemized on the attached Schedule "A ". The project is complete and all closeout documentation has been received. FUNDING SOURCE Residual funds to be liquidated from Purchase Order #687770 to funding account #448 - 5461 -538 -46.43 (Storm Water Utility Fund /Repair & Maintenance Svc /Drainage Swales). RECOMMENDATION Staff recommends approval of a Contract Closeout (CO #2 /Final) in the net deduct amount of ($4,546.00) and a final payment amount of $40,432.25 to Foster Marine Contractors, Inc. for completion of the Drainage Swales FY 12 - Lake Ida Project. CITY OF DELRAY BEACH CHANGE ORDER TO ORIGINAL CONTRACT CHANGE NO. 2/Final (Contract Closeout) PROJECT NO, 12 -010 DATE: PROJECT TITLE: Drainage Swales -FY 12 --- Labe Ida TO CONTRACTOR: Foster Marine Contractors, Inc. YOU ARE HEREBY REQUESTED TO MAKE THE FOLLOWING CHANGES IN THE PLANTS AND SPECIFICATIONS FOR THIS PROJECT AND TO PERFORM THE WORK ACCORDINGLY, SUBJECT TO ALL CONTRACT STIPULATIONS AND COVENANTS, JUSTIFICATION: Complete changes to proj cot per the attached Schedule "A ". SUMMARY OF CONTRACT AMOUNT/CHANGES ORIGINAL CONTRACT AMOUNT $ 79,455.00 COST OF CONSTRUCTION CHANGES PREVIOUSLY ORDERED $ 3,685.50 ADJUSTED CONTRACT AMOUNT PRIOR TO THIS CHANGE ORDER $ 83,14050 COST OF CONSTRUCTION CHANGES THIS ORDER ($..4,546.00) ADJUSTED CONTRACT AMOUNT INCLUDING THIS CHANGE ORDER $ 78,594.50 PERCENT DECREASE THIS CHANGE ORDER 5.72% TOTAL PERCENT DECREASE TO DATE 1.08% TOTAL CONTRACT TIME WILL BE INCREASED BY 0 DAYS CERTIFIED STATEMENT: I hereby certify that the supporting cost data included is, in my considered opinion, accurate and that the prices quoted are fair and reasonable. Foster Marine Contractors, Inc. (Contractor to sign & seal) TO BE FILLED OUT BY DEPARTMENT INITIATING CHANGE ORDER Funding is available from account: NIA DEPARTMENT APPROVED: Environrnental Services City Attorney 111 r 1-2call DELRAY BEACH, FLORIDA By: Mayor AT'T'EST: By: City Clerk S' \E.L m, \ I,rojects120 1 2112- 0 1 0lOMCIAL1CO 2 Final Foster Mwine Lake Ida Swaim GC 060413A= CERTIFIED BY SCHEDULE "A" TO CHANGE ORDER NO.2 I FINAL (CONTRACT CLOSEOUT) FOSTER MARINE CONTRACTORS, INC. DRAINAGE SWALES -FY 12 - LAKE IDA - PROJECT NUMBER 12 -010 ITEM NO. DESCRIPTION UNIT CONTRACT AWARD CONTRACT TO DATE EST. Q� UNIT PRICE TOTAL ACTUAL Qom, UNIT PRICE EXTENDED TOTAL PRICE QUANT ADJ. + 1- 1 Maintenance of Traffic LS 1 $ 4,000.00 $ 4,o0C,00 1 $ 4,000.00 $ 4,006.00 $ 2 Mobihzation/Demobilization LS 1 $ 4,200,00 $ 4,200.00 1 $ 4,200.00 $ 4,200.00 $ 3 Clearing & Grubbing LS 1 $ 18,750.00 $ 16,750.00 1 $ 18,750.00 $ 18,750.00 $ - 4 Roadside Swale Grading LS 4,262 $ 6.00 $ 25,572.00 4,446 $ 6.00 $ 26,676.00 $ 1,104.00 5 Sodding LS 4,262 $ 4.00 $ 17,048.00 4,446 $ 4,00 $ 17,784.00 $ 736.00 6 Additional Pavement Removal LS 1 $ 1,500.00 $ 1,500.00 1 $ 1,500.00 $ 1,500.06 $ - 7 Survey LS 1 $ 2,875.00 $ 2,875.00 1 $ 2,875.00 $ 2,875.00 $ 8 Landscape Allowance LS 1 $ 3,000.D0 $ 3,000.00 0 $ 3,000.00 $ - $ 3,000.00) 9 Utility Allowance LS 1 1 $ 2,000.00 $ 2,000.00 0 $ 2,000.00 $ - $ (2,000.00 10 Vidco Allowance LS 1 $ 500.00 $ 500.00 1 $ 500.00 $ 500.00 $ 11 Indemnification - $5,000.00 less Correction of $4,990.00 = S10.00. Approved by Commission on 1 ] 120112. LS 1 $ 10.00 $ 10:00 1 $ 10.00 $ 10.00 $ TOTAL ORIGINAL CONTRACT AWARD $79,455.00 $76,295.00 ($3,160.00) Change Order No. 1 - Additional irrigation, to extend the irrigation into the previously paved $3,685.50 0.62393 $3,685.50 $ 2,299.50 areas; which were converted to grass swales. Approved by Finance Director 04126113. TOTAL ORIGINAL CONTRACT AWARD 8, C0#1 $83,140.50 $78,594.50 ($4,546.00) Original Contract Award and Previously Approved Changes $83,140.50 Final Contract to Date $78,594.50 CHANGE ORDER NO. 21 FINAL $4,546.00 Page 1 of 1 MEMORANDUM TO: Mayor and City Commissioners FROM: Timothy Tack, Project Manager ESD /CRA Randal Krejcarek, City Engineer Victor Majtenyi, Interim Director of Environmental Services THROUGH: Louie Chapman, Jr., City Manager DATE: May 24, 2013 SUBJECT: AGENDA ITEM 8.H. - REGULAR COMMISSION MEETING OF JUNE 4, 2013 CORRECTION TO THE CONTRACT AWARD / MANCIL'S TRACTOR SERVICE, INC. ITEM BEFORE COMMISSION Request for the approval to increase the total contract amount of the construction contract awarded to Mancil's Tractor Service, Inc. for construction of the SW 2 St Beautification Project in the amount of $33.50 due to a scrivener's error (P/N 2010 -039). BACKGROUND On May 7, 2013, City Commission awarded the construction contract to Mancil's Tractor Service, Inc. for construction of the SW 2 St Beautification Project in the amount of $976,734.32; although, at this point, no contracts have been executed by either party. Upon further review of the proposal submitted by the contractor, the unit price for bid item #30 - "Handicap Curb Ramps with Tactile Surface" was different in numbers ($300.00) than in words (Three Hundred Dollars and Fifty Cents) . Per the contract, in case of a discrepancy, the unit price in words governs over the unit price in numbers. Therefore, the unit price should increase by $0.50 per unit for a total increase to the overall contract amount by $33.50. This agenda item is to correct the previous contract amount from $976,734.32 to the revised amount of $976,767.82. FUNDING SOURCE The funding source is as follows: #334 - 3162 -541 -65.95 $836,767.82 #448 - 5461 - 538.65 -95 $140,000.00 RECOMMENDATION Staff recommends approval of a revised bid award amountto Mancil's Tractor Service, Inc. for a total corrected project cost of $976,767.82, instead of the originally approved amount of $976,734.32, which is an increase of $33.50. SW 2ND STREET IMPROVEMENTS CITY OF DELRAY BEACH PROJECT NO. 2010 -14 BID NO. 2012 -14 BID TABULATION Page P 3.1 MANCIL'S WEST SEALAND RIC -MAN ENGINEER EST. EST EXTENDED EXTENDED EXTENDED EXTENDED DESCRIPTION UNIT UNIT PRICE UNIT PRICE UNIT PRICE UNIT PRICE EXTENDED COST QUANT COST COST COST COST 1 Site Mobilization LS 1 $ 45,000.00 $ 45 000.00 $ 25,569.00 $ 25 569.00 $ 58,100.00 $ 58 100.00 $ 40,722.00 $ 40 722.00 $ 98 533.45 2 Maintenance of Traffic LS 1 $ 25,000.00 $ 25 000.00 $ 16,000.00 $ 16 000.00 $ 40,000.00 $ 40 000.00 $ 43,047.00 $ 43 047.00 $ 40 000.00 3 As -Built Record Drawings LS 1 $ 25,000.00 $ 25 000.00 $ 28,800.00 $ 28 800.00 $ 2,000.00 $ 2,000.00 $ 8,800.00 $ 8,800.00 $ 10 000.00 4 NPDES /Erosion Control LS 1 $ 15,000.00 $ 15 000.00 $ 4,000.00 $ 4,000.00 $ 5,000.00 $ 5,000.00 $ 159,367.00 $ 159 367.00 $ 5,000.00 5 Clearing and Grubbing LS 1 $ 85,000.00 $ 85 000.00 $ 42,640.00 $ 42 640.00 $ 64,703.00 $ 64 703.00 $ 27,726.00 $ 27 726.00 $ 135 240.00 6 Remove Drainage Inlet EA 1 $ 707.25 $ 707.25 $ 615.00 $ 615.00 $ 500.00 $ 500.00 $ 826.00 $ 826.00 $ 1000.00 7 Relocate Existing Fire Hydrants EA 6 $ 1,201.75 $ 7210.50 $ 1,200.00 $ 7200.00 $ 1,900.00 $ 11400.00 $ 5,375.00 $ 32250.00 $ 8400.00 8 Relocate Existing Water Meters EA 3 $ 552.00 $ 1,656.00 $ 550.00 $ 1,650.00 $ 800.00 $ 2,400.00 $ 598.00 $ 1,794.00 $ 900.00 9 Modify Inlet Top with Hood and Grate EA 1 $ 1,753.75 $ 1,753.75 $ 1,750.00 $ 1,750.00 $ 1,100.00 $ 1,100.00 $ 2,774.00 $ 2,774.00 $ 2,750.00 10 Convert Catch Basin Top to Manhole EA 1 $ 1,443.25 $ 1443.25 $ 1,430.00 $ 1430.00 $ 1,100.00 $ 1100.00 $ 4,860.00 $ 4860.00 $ 4000.00 11 Core 15" RCP into Existing Structure EA 1 $ 1,121.25 $ 1,121.25 $ 1,110.00 $ 1,110.00 $ 1,000.00 $ 1,000.00 $ 1,757.00 $ 1,757.00 $ 400.00 12 Swale Grading and Sodding SY 4150 to include swale excavation and removal $ 6.00 $ 24,900.00 $ 21.00 $ 87,150.00 $ 16.50 $ 68,475.00 $ 9.00 $ 37,350.00 $ 10,375.00 13 1 1/2" Type S -III Asphalt Surface Course SY 1050 2 lifts - 3/4" each - including tack coat $ 13.50 $ 14,175.00 $ 12.50 $ 13,125.00 $ 18.00 $ 18,900.00 $ 31.00 $ 32,550.00 $ 7,350.00 14 2 1/2" Type S -I Asphalt Surface Course SY 950 2 lifts - 1 -1/4" each - including tack coat' $ 18.50 $ 17,575.00 $ 19.00 $ 18,050.00 $ 23.00 $ 21,850.00 $ 39.00 $ 37,050.00 $ 5,700.00 15 8" Compacted Limerock Base SY 2000 $ 11.50 $ 23 000.00 $ 11.25 1 $ 22 500.00 $ 14.00 $ 28 000.00 $ 17.00 $ 34 000.00 1 $ 26 000.00 16 12" Stabilized Subgrade SY 2500 (compacted to 98% max. density er AASHTO T -180 $ 3.50 $ 8,750.00 $ 3.85 $ 9,625.00 $ 19.00 $ 47,500.00 $ 30.00 $ 75,000.00 $ 15,000.00 17 6" Compacted Shellrock (Landscape Islands) SY 395 $ 8.50 $ 3,357.50 $ 11.25 $ 4,443.75 $ 18.00 $ 7,110.00 $ 29.00 $ 11 455.00 $ 1,975.00 18 3' Flush Concrete Slab SY 25 $ 189.00 $ 4,725.00 $ 30.50 $ 762.50 $ 100.00 $ 2,500.00 $ 26.00 $ 650.00 $ 5,250.00 19 Valley Gutter LF 140 $ 18.00 $ 2,520.00 $ 15.40 1 $ 2,156.00 $ 20.00 $ 2,800.00 $ 30.00 $ 4,200.00 1 $ 2,800.00 20 FDOT Type "A" Curb LF 750 $ 18.00 $ 13 500.00 $ 18.50 $ 13 875.00 $ 16.00 $ 12 000.00 $ 29.00 $ 21 750.00 $ 18 750.00 21 FDOT Type " F" Curb and Gutter LF 2090 $ 17.00 $ 35 530.00 $ 18.00 $ 37 620.00 $ 19.00 $ 39 710.00 $ 30.00 $ 62 700.00 $ 54 340.00 22 FDOT Type "RA" Curb LF 185 $ 16.00 $ 2,960.00 $ 20.00 $ 3,700.00 $ 16.00 $ 2,960.00 $ 29.00 $ 5,365.00 $ 4,625.00 Page P 3.1 Page P 3.2 MANCIL'S WEST SEALAND RIC -MAN ENGINEER EST. EST EXTENDED EXTENDED EXTENDED EXTENDED DESCRIPTION UNIT UNIT PRICE UNIT PRICE UNIT PRICE UNIT PRICE EXTENDED COST QUANT COST COST COST COST 23 2" PVC Irrigation Sleeves (Landscape Islands) LF 175 $ 5.00 $ 875.00 $ 10.00 $ 1,750.00 $ 20.00 $ 3,500.00 $ 14.00 $ 2,450.00 $ 1,750.00 24 5' Wide (4" Thick) Concrete Sidewalk LF 3950 $ 14.10 $ 55 695.00 $ 17.00 $ 67 150.00 $ 23.00 $ 90 850.00 $ 32.00 $ 126 400.00 $ 69 322.50 25 5' Wide (6" Thick) Concrete Sidewalk LF 1300 $ 17.80 $ 23,140.00 $ 19.00 $ 24,700.00 $ 26.00 $ 33,800.00 $ 32.00 $ 41,600.00 $ 67,200.00 26 Concrete Driveway Apron (6" thick) SF 6350 $ 3.75 $ 23,812.50 $ 8.00 $ 50,800.00 $ 6.50 $ 41,275.00 $ 5.00 $ 31,750.00 $ 25,360.00 27 Existing Sidewalk Joint Cutting LF 80 $ 7.00 $ 560.00 $ 1.00 $ 80.00 $ 6.00 $ 480.00 $ 81.00 $ 6 480.00 $ 200.00 28 Striped Crosswalks /Pavement Markings/Traffic Signs LS 1 At intersections where roundabouts are proposed' $ 21,634.25 $ 21,634.25 $ 18,700.00 $ 18,700.00 $ 25,000.00 $ 25,000.00 $ 37,717.00 $ 37,717.00 $ 22,495.00 29 Stop Conditions and Crosswalks Pavement Markings/ LS 1 Traffic Signs) $ 3,564.55 $ 3,564.55 $ 10,032.00 $ 10,032.00 $ 10,500.00 $ 10,500.00 $ 5,170.00 $ 5,170.00 $ 22,495.00 30 Handicap Curb Ramps with Tactile Surface EA 67 $ 300.50 $ 20 133.50 $ 400.00 $ 26 800.00 $ 750.00 $ 50 250.00 $ 1,269.00 $ 85 023.00 $ 13 400.00 31 Open Cut Pavement Repairs LF 450 $ 35.00 $ 15 750.00 $ 50.00 $ 22 500.00 $ 65.00 $ 29 250.00 $ 66.00 $ 29 700.00 $ 2,700.00 32 Type II Double Course Micro- Surfacinc SY 1700 $ 8.53 $ 14 501.00 $ 15.80 $ 26 860.00 $ 8.50 $ 14 450.00 $ 6.00 $ 10 200.00 $ 6,375.00 33 Crack Sealing GAL 170 $ 38.50 $ 6,545.00 $ 43.60 $ 7,412.00 $ 37.00 $ 6,290.00 $ 50.00 $ 8,500.00 $ 1,700.00 34 Rut Filling TN 57 $ 275.00 $ 15 675.00 $ 356.00 $ 20 292.00 $ 265.00 $ 15 105.00 $ 341.00 $ 19 437.00 $ 17 100.00 35 15" RCP LF 515 $ 46.58 $ 23 988.70 $ 46.00 $ 23 690.00 $ 75.00 $ 38 625.00 $ 43.00 $ 22 145.00 $ 27 810.00 36 18" RCP LF 18 $ 63.83 $ 1,148.94 $ 63.00 $ 1,134.00 $ 115.00 $ 2,070.00 $ 45.00 $ 810.00 $ 1,080.00 37 Type "C" Inlet with Type " F" Frame and Grate EA 3 per City of Delray Beach Standard D4.2 $ 2,593.25 $ 7,779.75 $ 2,570.00 $ 7,710.00 $ 2,600.00 $ 7,800.00 $ 2,429.00 $ 7,287.00 $ 9,600.00 38 4' Diameter Storm Manhole EA 2 $ 2,800.25 $ 5,600.50 $ 2,775.00 $ 5,550.00 $ 3,300.00 $ 6,600.00 $ 1,995.00 $ 3,990.00 $ 8,000.00 39 5' Diameter Storm Manhole EA 1 $ 8,176.50 $ 8,176.50 $ 8,100.00 $ 8,100.00 $ 4,300.00 $ 4,300.00 $ 2,170.00 $ 2,170.00 $ 5,000.00 40 Conflict Drainage Manhole EA 1 $ 10,850.25 $ 10,850.25 $ 10,755.00 $ 10,755.00 $ 5,300.00 $ 5,300.00 $ 3,272.00 $ 3,272.00 $ 4,500.00 41 Unforeseen Conditions Allowance LS 1 $ 50,000.00 1 $ 50 000.00 1 $ 50,000.00 $ 50 000.00 1 $ 50,000.00 1 $ 50 000.00 1 $ 50,000.00 1 $ 50 000.00 $ 50 000.00 42 Indemnification LS 1 $ 10.00 1 $ 10.00 1 $ 10.00 $ 10.00 1 $ 10.00 1 $ 10.00 1 $ 10.00 1 $ 10.00 $ 10.00 LANDSCAPE AND IRRIGATION 43 Florimulch CY 179 $ 38.25 $ 6,846.75 $ 28.00 $ 5,012.00 $ 25.25 $ 4,519.75 $ 42.00 $ 7,518.00 $ 12,635.00 44 Backfill - Planting soil with fertilizei CY 835 $ 26.56 $ 22,177.60 $ 33.60 $ 28,056.00 $ 37.00 $ 30,895.00 $ 8.00 $ 6,680.00 $ 15,498.00 45 Root Barrier LS 1 $ 25,000.00 $ 25 000.00 $ 30,780.00 $ 30 780.00 $ 28,000.00 $ 28 000.00 $ 72,952.00 $ 72 952.00 $ 2,500.00 Page P 3.2 Page P 3.3 MANCIL'S WEST SEALAND RIC -MAN ENGINEER EST. EST EXTENDED EXTENDED EXTENDED EXTENDED DESCRIPTION UNIT UNIT PRICE UNIT PRICE UNIT PRICE UNIT PRICE EXTENDED COST QUANT COST COST COST COST 46 1" Water Service with box (includes appurtenances) EA 2 $ 3,197.00 $ 6,394.00 $ 3,170.00 $ 6,340.00 $ 2,500.00 $ 5,000.00 $ 1,061.00 $ 2,122.00 $ 7,000.00 47 Protective Tree Fencing /Barricade LS 1 $ 2,500.00 $ 2500.00 $ 150.00 $ 150.00 $ 100.00 $ 100.00 $ 7,106.00 $ 7106.00 $ 138.00 48 Pruning of Existing Trees LS 1 $ 2,500.00 $ 2,500.00 $ 150.00 $ 150.00 $ 300.00 $ 300.00 $ 48,923.00 $ 48,923.00 $ 400.00 49 Irrigation System including Trench ing /Sleevinc LS 1 $ 79,617.94 $ 79,617.94 $ 107,500.00 $ 107,500.00 $ 118,000.00 $ 118,000.00 $ 130,504.00 $ 130,504.00 $ 68,547.24 50 Bailey Palm EA 4 (Field grown and root pruned,10' height overall, matched) $ 2,921.88 $ 11,687.52 $ 1,690.00 $ 6,760.00 $ 1,525.00 $ 6,100.00 $ 1,544.00 $ 6,176.00 $ 20,000.00 51 Bottle Palm EA 12 (Field grown and root pruned, 14' height overall minimum 4' grey wood, 7' cleartrunk, matched ) $ 876.56 $ 10,518.72 $ 500.00 $ 6,000.00 $ 450.00 $ 5,400.00 $ 499.00 $ 5,988.00 $ 9,000.00 52 Desert Cassia EA 10 45 gallon, 12' height, 1.5" caliper, standard, matched $ 185.94 $ 1,859.40 $ 380.00 $ 3,800.00 $ 345.00 $ 3,450.00 $ 361.00 $ 3,610.00 $ 4,500.00 53 Dune Sunflower EA 205 1 gallon, full pots, 5 runners minimum, 18" on centers $ 3.19 $ 653.95 $ 3.75 $ 768.75 $ 3.40 $ 697.00 $ 7.00 $ 1,435.00 $ 615.00 54 Dwarf Bougainvillea EA 19 Full, 3 gallon, 2'x 2', 2' on centers $ 9.56 $ 181.64 $ 10.00 $ 190.00 $ 9.15 $ 173.85 $ 14.00 $ 266.00 $ 171.00 55 Dwarf Shore Juniper EA 559 3 gallon, full pot, 2' on centers $ 9.03 $ 5,047.77 $ 10.25 $ 5,729.75 $ 9.25 $ 5,170.75 $ 12.00 $ 6,708.00 $ 4,192.00 56 Dwarf Wild Coffee EA 29 Full, 7 gallon, 36" x 36 ", 3' on centers' $ 30.28 $ 878.12 $ 45.00 $ 1,305.00 $ 41.00 $ 1,189.00 $ 48.00 $ 1,392.00 $ 1,160.00 57 East Lake Palatka Holly EA 12 (30 gallon minimum, 10' height, 4' spread, 30" or centers, 1 1/2" diameter at breast height) $ 185.94 $ 2,231.28 $ 188.00 $ 2,256.00 $ 170.00 $ 2,040.00 $ 229.00 $ 2,748.00 $ 1,800.00 58 Foxtail Fern EA 328 Full 1 gallon, 12" on centers (plant between Dioons $ 3.72 $ 1,220.16 $ 3.90 $ 1,279.20 $ 3.50 $ 1,148.00 $ 8.00 $ 2,624.00 $ 1,312.00 59 Green Blueberry Flax Lily EA 272 (Full, 1 gallon, 5 -7 plants per pot, 12" height, 12" on centers ) $ 4.78 $ 1,300.16 $ 4.00 $ 1,088.00 $ 3.60 $ 979.20 $ 8.00 $ 2,176.00 $ 1,088.00 60 Green Island Ficus EA 697 Full 3 gallon, 18" x 18" 18" on centers' $ 7.28 $ 5,074.16 $ 9.80 $ 6,830.60 $ 8.85 $ 6,168.45 $ 12.00 $ 8,364.00 $ 4,182.00 61 Icetone Croton EA 107 Full, 3 gallon, 2'x 2', 2' on centers $ 12.75 $ 1,364.25 $ 9.70 $ 1,037.90 $ 8.75 $ 936.25 $ 12.00 $ 1,284.00 $ 856.00 62 Jatropha EA 44 Full, 15 gallon, 5' height, matched, Florida Fanc ' $ 69.06 $ 3,038.64 $ 63.30 $ 2,785.20 $ 57.00 $ 2,508.00 $ 75.00 $ 3,300.00 $ 2,860.00 63 Large Orange Bromeliad EA 15 Full, 7 gallon, 30" x 30 ", specimen) $ 79.69 $ 1,195.35 $ 45.30 $ 679.50 $ 41.00 $ 615.00 $ 48.00 $ 720.00 $ 600.00 64 Miraguama Palm EA 6 (Field grown and root pruned, 14' height overall 7' clear trunk, matched ) $ 2,098.44 $ 12,590.64 $ 840.00 $ 5,040.00 $ 755.00 $ 4,530.00 $ 1,159.00 $ 6,954.00 $ 7,560.00 65 Montgomery Palm "Double" EA 27 (Field grown and root pruned, 18' height overal minimum Florida Fancy, matched ) $ 281.56 $ 7,602.12 $ 327.00 $ 8,829.00 295.00 $ 7,965.00 $ 416.00 $ 11,232.00 $ 12,960.00 66 Muskogee Crape Myrtle EA 12 (65 gallon, 14' height x 6' spread, standard, tree form, matched, Florida Fancy) $ 451.56 $ 5,418.72 $ 520.00 $ 6,240.00 $ 470.00 $ 5,640.00 $ 416.00 $ 4,992.00 $ 5,400.00 Page P 3.3 NOTE: Items highlighted in yellow are corrections made to the Bid Tabulation Sheet based on contractor provided Unit Costs. Page P 3.4 TOTAL EVALUATED BASE BID WITH MANCIL'S WEST SEALAND RIC -MAN ENGINEER EST. DESCRIPTION UNIT EST QUANT UNIT PRICE EXTENDED COST UNIT PRICE EXTENDED COST UNIT PRICE EXTENDED COST UNIT PRICE EXTENDED COST EXTENDED COST 67 Pink Muhly Grass EA 115 Full, 3 gallon, 24" x 20 ", 2' on centers' $ 7.17 $ 824.55 $ 9.10 $ 1,046.50 $ 8.25 $ 948.75 $ 12.00 $ 1,380.00 $ 805.00 68 Queen Emma Crinum EA 99 Full, 7 gallon, 36" x 36" minimum, Florida Fancy) $ 30.28 $ 2,997.72 $ 46.00 $ 4,554.00 $ 41.70 $ 4,128.30 $ 37.00 $ 3,663.00 $ 3,960.00 69 Red Curly Boy Croton EA 64 Full, 3 gallon, 2'x 2', 2' on centers $ 7.44 $ 476.16 $ 9.70 $ 620.80 $ 8.75 $ 560.00 $ 18.00 $ 1,152.00 $ 576.00 70 Society Garlic EA 218 Full, 1 gallon, 12" on centers $ 3.72 $ 810.96 $ 3.40 $ 741.20 $ 3.10 $ 675.80 $ 7.00 $ 1,526.00 $ 763.00 71 Spindle Palm EA 8 (Field grown and root pruned, 14' height overall minimum 4' grey wood, 7' cleartrunk, matched ) $ 584.38 $ 4,675.04 $ 1,881.00 $ 15,048.00 $ 1,700.00 $ 13,600.00 $ 438.00 $ 3,504.00 $ 4,640.00 72 Spiny Dioon EA 32 Full, 7 gallon, 3' height. 3' on centers' $ 69.06 $ 2,209.92 $ 45.30 $ 1,449.60 $ 41.00 $ 1,312.00 $ 59.00 $ 1,888.00 $ 2,560.00 73 Stoplight Croton EA 230 Full, 3 gallon, 24" x 24 ", Florida Fancy, 2' on centers $ 7.44 $ 1,711.20 $ 13.30 $ 3,059.00 $ 12.00 $ 2,760.00 $ 14.00 $ 3,220.00 $ 2,760.00 74 Variegated Blueberry Flax Lily EA 4042 (Full, 1 gallon, 5 -7 plants per pot, 12" height, 12" on centers ) $ 3.98 $ 16,087.16 $ 4.00 $ 16,168.00 $ 3.60 $ 14,551.20 $ 7.00 $ 28,294.00 $ 17,178.50 75 Wart Fern EA 687 Full, 1 gallon, 6" height minimum, 12" on centers' $ 3.98 $ 2,734.26 $ 4.00 $ 2,748.00 $ 3.60 $ 2,473.20 $ 7.00 $ 4,809.00 $ 2,919.75 76 Wax Jasmine EA 16 Full, 3 gallon, 2'x 2', 2' on centers $ 7.28 $ 116.48 $ 8.80 $ 140.80 $ 8.00 $ 128.00 $ 12.00 $ 192.00 $ 104.00 77 Wax Privet EA 6 200 gallon, 10' specimen, Florida Fancy' $ 579.06 $ 3,474.36 $ 592.00 $ 3,552.00 $ 535.00 $ 3,210.00 $ 768.00 $ 4,608.00 $ 3,600.00 78 Yesterday, Today, & Tomorrow EA 75 Full, 3 gallon, 2'x 2', 2' on centers $ 7.97 $ 597.75 $ 9.50 $ 712.50 $ 8.55 $ 641.25 $ 15.00 $ 1,125.00 $ 487.50 79 3.5' Wide (4" Thick) Concrete Sidewalk LF 153 $ 9.56 $ 1,462.68 $ 13.00 $ 1,989.00 $ 18.00 $ 2,754.00 $ 66.00 $ 10,098.00 $ 2,601.00 TOTAL EVALUATED BASE BID BID ITEMS 1 THROUGH 79 $ 924,402.07 $ 1,018,232.55 $ 1,163,830.75 $ 1,551,337.00 $ 1,042,414.94 ALTERNATE BID ITEM 28A Brick Paver Crosswalks/Pavement Markings/Traffic LS 1 Signs (This item replaces Striping and Pavement Markings and Signs @ intersections with Roundabouts in Bid Item No. 28) $ 74,000.00 $ 74,000.00 $ 59,340.00 $ 59,340.00 $ 58,438.00 $ 58,438.00 $ $ 72,885.00 $ 72,885.00 $ 67,500.00 NOTE: Items highlighted in yellow are corrections made to the Bid Tabulation Sheet based on contractor provided Unit Costs. Page P 3.4 TOTAL EVALUATED BASE BID WITH ALTERNATE BID ITEM 28A INCLUDED 1 $ 976,767.82 1 $ 1,058,872.50 $ 1,197,268.70 $ 1,586,505.001$ 1,087,419.90 NOTE: Items highlighted in yellow are corrections made to the Bid Tabulation Sheet based on contractor provided Unit Costs. Page P 3.4 FE S.W. 15TH AVE S.W. 14TH n N.W. 14TH vi a AVE. �I G zLfl N.W. 13TH AVE. wj F 12TH AVE. z 11TH AVE. AVE. D r D 0TH AVE. � n N N.W. 9TH AVE. o E S.W. 13TH � UBURN AVENUE S.W. S.W. 12TH 11TH S.W. 10TH N S.W. 9TH CIR. o S.W. 9TH � S.W. 6TH ° S.W. N Z ° ME" m V ' Tm m Z C m ni N.W. N.W. N.W. N.W. El N.W. HILL ELLLILT�l y c A s z n 7 S.W. 6TH AVE. S.W. 5TH I AVE. h 5.W. 4TH AVE. ti AVE. S.W. 3RD N.W. H=EL=E N.W. 2ND S.W. 2ND AVE. 1ST FH11 S.W. 1ST. AVE. S W I N TON A V E N U E CITY of DELRAY BEACH ENVIRONMENTAL SERVICES DEPARTMENT 0 P 434 SOUTH SWINTON AVENUE, DELRAY BEACH, FLORIDA 33444 SW 2 ST BEAUTIFICATION OATE:05/05/2010 MEMORANDUM 'A Z TO: Mayor and City Commissioners FROM: R. Brian Shutt, City Attorney DATE: May 30, 2013 SUBJECT: AGENDA ITEM 8.I. - REGULAR COMMISSION MEETING OF JUNE 4, 2013 AMENDMENT TO EASEMENT, USE, MAINTENANCE AND DECLARATION AGREEMENT/ 120 S.E. 4TH STREET ITEM BEFORE COMMISSION The item before the Commission is a request to allow staff to sign off on an easement amendment, where the City is not a party, but the City must give its approval for the amendment. BACKGROUND In 1987, Leo A. Blair owned the properties at 120 S.E. 4th Avenue and 310 S.E. 1st Street. On May 7, 1987, Mr. Blair recorded an Easement, Use, Maintenance and Declaration Agreement (the "Easement ") whereby five (5) parking spaces were created on 310 S.E. 1st Street for the benefit of 120 S.E. 4th Avenue. While the City was not a party to the Easement, paragraph 6 thereof required that any substituted parking arrangement "will be satisfactory to the City of Delray Beach, Florida and future owner of parcel 1 [120 S.E. 4th Avenue] ". Dr. Raul J. Rodriguez owns the property at 120 S.E. 4th Avenue and Related Development will own the property at 310 S.E. 1st Street on which it will develop SOFA Building #1. The parking garage in SOFA Building #1 will contain five (5) parking spaces for the benefit of 120 S.E. 4th Avenue and Dr. Rodriguez. Related's counsel prepared an Amendment to the Easement to provide Dr. Rodriguez with access to and use of substitute five (5) spaces in the SOFA Building #1 garage. A copy of the Amendment to Easement is attached. Additionally, the expression of the City's satisfaction is contained in a simple form letter also attached. Since this is a substitution of parking space access and use between two private parties, the City does not need to become a signatory to the Amendment of Easement, but will merely express that it is "satisfied" with the substituted arrangement. Engineering and Planning and Zoning have reviewed this item and are not opposed to the amendment. RECOMMENDATION Approve the easement amendment. This instrument prepared by and return to: James A. Carenza, Esq. Greenberg Traurig, P.A. 333 S.E. 2 "a Avenue Miami, Florida 33131 AMENDMENT TO EASEMENT, USE, MAINTENANCE AND DECLARATION AGREEMENT This Amendment To Easement, Use, Maintenance and Declaration Agreement ("Amendment") is made and entered into as of , 2013, by and between , (herein "Parcel 1 Owner "), and [RELATED ENTITY] (herein "Parcel 2 Owner "). WITNESSETH: WHEREAS, Parcel 1 Owner and Parcel 2 Owner are the successors in interest to Leo A. Blair with respect to Parcel 1 and Parcel 2, respectively, under that certain Easement, Use, Maintenance and Declaration Agreement dated May 7, 1987 and recorded on May 14, 1987 in Official Records Book 5280, Page 0178 of the Public Records of Palm Beach County, Florida (the "Easement"); all capitalized terms not otherwise defined herein shall have the meaning afforded to such term in the Easement; WHEREAS, the Parcel 1 Owner is the current legal owner of Parcel 1; WHEREAS, the Parcel 2 Owner is the current legal owner of Parcel 2; WHEREAS, pursuant to the Easement, the Parcel 2 Owner granted to the Parcel 1 Owner, for the benefit of Parcel 1, certain rights for ingress and egress and for use of the Parking Parcel and the Access Parcel; WHEREAS, provided certain terms and conditions contained in Section 6 of the Easement have been met, the Parcel 2 Owner may substitute an alternative parking area for the Parking Parcel and Access Parcel for the benefit of Parcel 1 at any time from and after the date of the Easement; and WHEREAS, the parties hereto have agreed to modify the Easement and to relocate the Parking Parcel and Access Parcel. NOW THEREFORE, in consideration of the sum of ten ($10.00) Dollars, the receipt of which is hereby acknowledged, it is agreed as follows: 1. The foregoing recitals are true and correct and incorporated herein by reference as if set forth at length. MIA 182919717v2 2. Exhibit "A" of the Easement (i.e., the Parking Parcel) is hereby deleted in its entirety and replaced with Exhibit "A" attached hereto. Consequently, any portion of Parcel 2 encumbered by the Easement and not contained in the legal description set forth in Exhibit "A" attached hereto is hereby released for all purposes. 3. Exhibit "B" of the Easement (i.e., the Access Parcel) is hereby deleted in its entirety and replaced with Exhibit `B" attached hereto. Consequently, any portion of Parcel 2 encumbered by the Easement and not contained in the legal description set forth in Exhibit `B" attached hereto is hereby released for all purposes. 4. So long as is the Parcel 1 Owner, he /she shall not be obligated to pay the Parcel 2 Owner for its share of the Maintenance Obligation in accordance with Section 4 of the Easement. Upon the transfer of Parcel 1 to a third party, such third party shall be obligated to pay its share of the Maintenance Obligations in accordance with Section 4 of the Easement. 5. Except as amended hereby, the Easement is hereby ratified and shall remain unmodified and in full force and effect. 6. This Amendment may not be waived, changed or terminated orally. 7. This Amendment is made in and shall be governed by the laws of the State of Florida. [Signature pages to follow] 2 MIA 1 s2s 1 s717v2 IN WITNESS WHEREOF, the parties hereof have executed and delivered this Amendment to Easement, Use, Maintenance and Declaration Agreement as of the day and year first above written. Witness: Print Name: Print Name: State of Florida ) ss: County of ) PARCEL 1 OWNER: The foregoing instrument was acknowledged before me this day of . 2013 by . He /She is personally known to me or has produced as proper identification. [NOTARIAL SEAL] Commission Number: 3 MIA 182919717x2 Notary: Print Name: Notary Public, State of Florida My commission expires: Witness: Print Name: Print Name: State of Florida ) SS: County of Miami -Dade ) PARCEL 2 OWNER: [RELATED ENTITY], a Florida limited liability company By:_ Name: Title: The foregoing instrument was acknowledged before me this _ day of 2013 by , as the of on behalf of said company. He /She is personally known to me or has produced [NOTARIAL SEAL] Commission Number: 4 MIA 182919717x2 as proper identification. Notary: Print Name: Notary Public, State of Florida My commission expires: EXHIBIT A MIA 182919717v2 SKETCH OF LCSCR/PTTION EXHIBI T 'A " SHEET 1 OF 2 1ST STREET N.E. CORNER LOT 1-/ AND P.O.C. N LOT 7, BLOCK 94 o O P.0R PARKING � g SPACES CP -i TIROUGH CP -4 ^ - - -- - - W LOT 2, BLOCK 94 ORDER NO. 85- 161'EA" z W U r Q 3 m u O p Q W Q a E �N NOTES- THIS IS NOT A SL4!ZUEY P. OR = POINT OF BEGWA(G P.O.C. = POINT OF COMMENCEMENT THE EAST LINE OF LOTS 1 & 2 ARE ASSUED TO BEAR S.0 °00'00 "W. SEE SI-EET 2 OF 2 FOR LEGAL DESCRIPTIONS PAIK D. EAGLE SU'?VEYOR & MAPPER N0. 5708 DATE.• APRIL 2, 2013 OERIEN, SUITER & OBRIEN M CERTIFICATE OF A U THORIZA 7101V IL B353 SL#?VEYOR AND MAPPER IN RESPONSIBLE CHARGE' PAUL D. ENGLE 955 N. W. 17TH A VE&t& SUTE K -1 DELRAY BEACH FLORIDA 33445 (56) 276 -4501 (561) 732 -3279 W J 24.00' W — cp—1 LOT 1 0 LOT 22 0 ., ° �$ CP-2 S °'OO ° Z 22.41' S90 °00'00" H! ° ACCESSo° CP-4 i� EASEMENT N .90 000'00" o "E. 1600' W N.90 000'00 0 22.41' o- S90 °0000 "W. G�P�00. S W 24.00' o0 N.90000'00'E P.O.B. PARKING o SPACE CP-5 Z LOT 2, BLOCK 94 ORDER NO. 85- 161'EA" z W U r Q 3 m u O p Q W Q a E �N NOTES- THIS IS NOT A SL4!ZUEY P. OR = POINT OF BEGWA(G P.O.C. = POINT OF COMMENCEMENT THE EAST LINE OF LOTS 1 & 2 ARE ASSUED TO BEAR S.0 °00'00 "W. SEE SI-EET 2 OF 2 FOR LEGAL DESCRIPTIONS PAIK D. EAGLE SU'?VEYOR & MAPPER N0. 5708 DATE.• APRIL 2, 2013 OERIEN, SUITER & OBRIEN M CERTIFICATE OF A U THORIZA 7101V IL B353 SL#?VEYOR AND MAPPER IN RESPONSIBLE CHARGE' PAUL D. ENGLE 955 N. W. 17TH A VE&t& SUTE K -1 DELRAY BEACH FLORIDA 33445 (56) 276 -4501 (561) 732 -3279 W J 1 SKETCH OF DESCRIPTION EXHIBIT "A" SHEET A2 OF 2 DESCRIP770M OF ACCESS EASEA?ENT 'THAT PORTION OF LOTS 1 AND 2, BLOCK 94, TOWN OF LINTON (NOW DELRAY BEACH) ACCORDING TO ThE PLAT THEREOF AS RECORDED IN PLAT BOOK 1, PAGE 3, PUW IC RECORDS' OF PALM BEACH COUNTY, FLORIDA, DESCRIBED AS FOLLOW COMENCING AT THE NORTHEAST CORAER OF SAID LOT 1; VICE SOO°00'DO "W., 'ALONG TI-E EAST LINE-OF SAID LOTS 1 AND 2, A DISTANCE OF 6594 FEET TO THE POINT OF BEGIANAQ THENCE S.90°00'00 "W.., A DISTANCE OF 22.41 FEET; THENCE N.0'00'00'E, A DISTANCE OF 1733 FEET- THENCE S.90 °00'00'YY, A DISTANCE OF 24.00 FEET; THENCE S.0-00'00' W., A DISTANCE OF 53.17 FEET; THENCE N.90000'00'E, A DISTANCE OF 24.00 FEET. THENCE N.0°00'00'E, A DISTANCE OF 1183 FEET' THENCE N.90 °00'00'E, A DISTANCE OF 2241 FEET TO A POINT ON THE EAST LINE OF SAID LOT 2, THENCE N.0 °00'00'1', ALONG SAID EAST LINE, A DISTANCE OF 24.00 FEET TO THE POINT OF BEGNG. DESCRIPTION OF PARKING SPACES CP -1 TI-ROUGH CP-4: THAT PORTION OF LOTS 1 AND 2, BLOCK 94, TOWN OF LINTON (NOW DELRAY BEACH) ACCORDING TO 77E PLAT THEREOF AS RECORDED IN PLAT BOOK t PAGE 3, ael C RECORDS OF PALM BEACH COLWVTY, FLORIDA, DESCRB£D AS FOLLOWS.- COMMENCING AT THE NORTHEAST CORNER OF SAID LOT 1; THENCE S00 °00'00 "W., ALONG TTE EAST LINE OF SAID LOTS 1 AND 2, A DISTANCE OF 6594 FEET; THENCE S9000000 W., A DISTANCE OF 22.41 FEET; THENCE N.0 °00'00'1:, A DISTANCE OF 1733 FEET,• TIENGE S90 °00'00 "W, A DISTANCE OF 24.00 FEET TD 77-B POINT OF BEGIIWWNG,• THENCE CONTINUE S9000OW "W., A DISTANCE OF 1800 FEET THENCE S.0 °00'00'9N., A DISTANCE OF 37.00 FEET; THENCE N.90- OOVO;E, A DISTANCE OF 18.00 FEET; THENCE N00001001F, A DISTANCE OF 3700 FEET TO TI-E POINT OF BE'GIIVNING. DESCRIPTION OF PARKING SPACE -5• THAT PORTION OF LOTS 1 AND 2, BLOCK 94, TOWN OF LINTCN (NOW DELRAY BEACH) ACCORDING TO TIE PLAT THEREOF AS RECORDED IN PLAT BOOK 1, PAGE 3, PLBLIC RECORDS OF PALM BEACH COLWTY, FLORIDA, DESCRIBED AS FOLLOWS- COMMENCING AT 77-E NORTHEAST CORNER OF SAID LOT 1; 77-HENCE SOO°00'00 "W., ALONG THE EAST LINE OF SAID LOTS I AND 2, A DISTANCE OF 6594 FEET, THENCE S90000'00 "W., A DISTANCE OF 22.41 FEET, THENCE NO°00'00'E, A DISTANCE OF 1733 FEET' THENCE 590°00'00 "W., A DISTANCE OF 24.00 FEET; THENCE S0�0'00 "W, A DISTANCE OF 53.17 FEET THENCE N.90 °00'00'E, A DISTANCE OF 24.00 FEET TO THE POINT OF BEGANA(G; THENCE CONTINUE N.90 000'00'1:, A DISTANCE OF 16.00 FEET. THENCE NO °00'00'1:, A DISTANCE OF BOO FEET' THENCE S90 °00'00 'W., A DISTANCE OF 16.00 FEET, THENCE SD °00'00 "W., A DISTANCE OF B00 FEET TO TIDE POINT OF BEGWNG. DATE: APRIL 2, 2013 OBRZEN, SW ER & OBRIE-N INC. CER7TFICATE OF AUTHORIZATION jLB353 S.U4VEYOR AND MAPPER IN RESPONSIBLE CHARGE PAUL D. ENGLE 955 NW. 17TH AVEAk& SITE K -1 ORDER N0.' 85- 161'EA" DEL RAY BEACH FLORIDA 33445 (561) 276 -4501 (561) 732-J279 010-- fts'GENER- CAODIGxdws -161 EASEMENT SHEET 2 " 04/02/1013.' 03:35 PM.. Saafa f : 240.0000 EXHIBIT B MIA 182919717v2 (r- I ' Al 113 Xii! °gLPG Mel !I° ° >C3 3 R11g,911 �Ox3 q @@'ING Iam fig Q R [r3 I °a F:r ' fiRR aa a #I+N 4BgR�g¢Rg( 0 2 t 44 fi ts o °�R C a ?g t Cori rid ®3 ; Sof BUILDING 1 SE 3RD AVENUE DELRAY BEACH FL 33444 F:r ' RELATED DEYEIAPMENf LLC. 31SMIBAMIFL fi ts t 33131 w T DELRAY CENTER FOR RECOVERY, INC. 403 SE 4TH STREET DELRAY BEACH, FL 33483 May 24, 2013 VIA U.S. MAIL R. Brian Shutt, Esq. City Attorney City of Delray Beach 200 N.W. 1 st Avenue Delray Beach, FL 33444 Mr. Uri Man Project Manager SOFA Building No. 1 Related Development 315 South Biscayne Blvd. Miami, FL 33431 Re: Amendment to Easement Use Maintenance and Declaration Agreement dated May 7, 1987, recorded in O.R. Book 5280 at Page 0178 of the Public Records of Palm Beach County, Florida (the "Amendment to Easement ") Dear Messrs. Shutt and Man: I intend to execute the Amendment to the Easement prepared by James A. Carenza, Esq. of Greenberg Traurig which will provide access to and use of five parkin spaces in the covered garage in SOFA Building #1 for the benefit of my property at 120 S.E. 4` Street in Delray Beach. I have determined that the alternative five parking spaces in the SOFA Building #1 garage are satisfactory replacements for the parking spaces previously provided at 310 S.E. I" Street, Delray Beach in accordance with the provisions of the underlying easement. Very truly yours, Dr. Raul J. Rodriguez Based on the foregoing recitations, the substituted parking area in the covered garage at SOFA Building #1 per the Amendment to Easement is satisfactory to the City of Delray Beach. R. Brian Shutt, City Attorney Prepared by and return •to: Will Call 22� Doak S.' Campbell, rrl* Gunater, Yoakley., Criser L Stewart• , 1900 Glades Road; Suite 351 a.% Boca,Ratan; Florida 33431 ,.tu f+l MiiiiSNT, USE, MAINTENANCE AND DECLARATION AGREEMENT �'• ti lf`) C THIS Ap4EMENT, USE, MAINTENANCE AND 'DECLARATION• AGREEMENT is. made an tdred into this L day of j7i4 , 1987, by LEO n '!GLAIR* hereinafter referred to as Declarant. Z11I T N E'S S E T H: WHEREAS, the t',owns that certain real property and improvements located at 20 S.E. Fourth Avenue, Delray Beach, Florida,. hereinafter `a rred to as ' "Parcel 1," and more particularly described as ows: Lot 14 and the South 81 et of Lot 13, Block 94, Delray Beach, Palm Beach Count orida, according. to the Plat thereof recorded in Plat '�- at Page 3' (sheet 2) of the. Public Records of Palm Bea tdty, .Florida. and; WHEREAS, the Declarant also A�i `that certain real property located at 310 S.E. First Stree {{` Delray: Beach, Florida, hereinafter referred eo as "Parcel `. yam nd more 'particularly described as follows The .West 47.50 feet of the East 67.9.. lo 'of the North 5.20 feet of Lot 51 the West. 47.50 fegit, ' ,the East 67.50 feet of the South 15.40. f6et of Lot' 4 p;.1k, he North 24.00 feet 'of the South 39.40 feet of Lot �4 � in Block 94 Delray Bench (formerly L'intbn,), .Palm Bear ��{ty; Florida, according to.the Plat thereof recorded in�at 9ook,1, Page. 3 (sheet 2) of the Public', Records 'of Palm Beach County,Florida. WHEREAS, •by reason of zoning requirements within the 'City - of 'Delray . Beach,- the City has required, in order -to construct the existing improvements located on Parcel 1, that. offsite " tU r r_ •-t d '.O 00 N Ln .. parking qe located on Parcel. 2 for a•total of five .(S)* parking space's. aod, *in .order .to iccomplisb such,'that'a Declaration of Unity of Title unifying Parcels 1 and .2 into.• a singular parcel of re 1 perty be recorded; 'and , �64ERP�04 the City of,Delray Beech has consented, in lieu of a Dec arl+ 00 bf Unity of. "Title, that this Easement,: Use, .MaintenalVqi,��d - Declaration Agreement, be made; and r WREREA�t�f the Declarant is* agreeable to making this Declaration lqi' ing to and for the benefit of Parcel 1 the use of a portion W Pasrcel 2 for access and parking, as hereinafter described, subjeEtt} o certain maintenance and use restrictions and obligations ae(yecoinafter described. NOW, THEREFORE, 14✓ hereby declared that: :; 1. The owners of, cel 1, their heirs, successors and assigns are hereby giv the full and free right and liberty, at all times hereafter, T6r0the purpose.of the nonexclusive, perpetual use of a portion 6 rcel 2 described in Exhibit "A" attached hereto, such port io b •i�g described as the "Parking Area,"• subject to the' restrict AaJ obligations hereinafter set forth,in this Agreement. 2•. The Owners of Parcel 1, } heirs, "successors and assigns shall be entitled ' to the I;r1JI nd free right and liberty; at all times hereafter, fro the purpose of the nonexclusive, perpetual ingress and egrs f.bver , a. portion of ,Parcel 2 as described in Exhibit "B" sttaclOd,,jereto and made a part hereof, such portion being- deecri4" the "Access Parcel," subject. to the restrictions and/' obligations hereinafter set. €orth in'thYs Agreement. 3.. The Owners of Parcel 2, "their heirs, successors and assigns i,n no-way assume any liability or _responsibility to the Owner of Parcel l.; their heirs, successors, assigns, or to any �s■f 2 01 --t P O:. O a0 ni Ln in x person• us.ift the Parking Parcel or Access Parcel.by invitation, express or implied,, or by reason of .any person using said parcels by •invitaf iop, express or taplied, or by .reason of any busines conducted with the owners ,of. Parcel 2, their succsoc� d assigns or, otherwise. ` "all be- the obligation of the Owners- of Parcel. 1, their he successors and assign's to pay to, the_ Owners of Parcel . 211. exnses; incurred by the' Owner- of Parcel 12 'in connection "ainraining. and' repatring' the Parking Parcel and Access Paite.i1. Nit' is hereby declared that, for purposes of determining sucJ ense, .the owner of Parcel -1 shall be responsible for a �tF4 on of the maintenance; repair, lighting, taxes and insurance ep se'of the paved areas and landscaping L located. on and adjacen Parcel 2, it being.,agreed that this responsibility will be enty -seven percent (278) of the total cost for the entire parkin s f@t the building at 3140 S.S. 'Mes-r _SrKS.&T lr.LicnZ Gsacrf . - Owner of Parcel 1 shall pay said sums as shall be requirblr he Owner of Parcel 2 on an annual basis within fifte - -1i5) days :following -the presentation by the Owner of Par 1, the' Owner of Parcel 1 of an invoice for such asses ems, together with such reasonable backup data,as the Owner Of, 1 shall request. 5. The Owner of. Parcel 2 shall h vie the right to record a lien on Parcel 1 for unpaid assessment a., `. Mother with inter9eak; s thereon, together with a lien on ell tangil e ? ersonal property located within the improvements within. P, except that such • liens 'shall 'be subordinateY to ' prior bgna/ de liens of record. Reasonable attorneys' fees, including fees on appeal :incurred•by• the Owner of Parcel 2.Lncident .to.' the collection of such assessments or the-enforcement of such lien, together with all: sums advanced and paid by the Owner of Parcel 2 for taxes and payments' on account. of supeiior mortgages, liens or encumbrances . which. may be required to be advanced by the Owner 3 5 . . s of parcel 2 -in order to -preserve or. protect its lien -shall.-be 1P payable by , the Owner of 'Parcel 1 and secured by such lien: such lien shall be,entitled to foreclosure in the Circuit Court in the ^me manner as mortgages, and the Owner 'of Parcel 2 shalltq 'Ge i_tled to bid at any sale held pursuant to a suit of foreclb the assessment lien, • and to'-apply ' as • a cash credit i it its bid all, =sums due, . as provided • herein, covered by.4he ljqn enforced. In case• of such foreclosure,, the. ,owner of PaNe shall be required to pay a reasonable -rental to the Owner b.VParcel 2 for the period of time said parcel is occupied by the\ 'der of Parcel 1 or anyone. by, through or' . under said Owner, (�ffi6 the Plaintiff in such foreclosure suit shall be entitled' to appointment of a Receiver. to collect same from the Owner and fg4 ccupant. 6. . The Declarant F reby reserves dnto himself, his heirs, successors and assigns, (ei�ight to substitute an alternate parking area for the Park i 1ccel and Access Parcel for the benefit of Parcel 1 at any tij X :r:pm and after 'the date of the .0 r� Declaration,; provided _that suc £stituted parking area will � ; 4md iFvi•Yre. oW ijEr , o'F .be satisfactory to the City of `1'r,! ' .Beach, Florida,A In the Taft 1 event of such a substitution, th arant shall execute a document of record in the Public Rec r alm Beach County, which upon .being recorded,, this Decla' tio'n� shall become null and. void as to the extent of any .rights paid assessments for which the Owner of•Parcel 2 may then be �ln rtled. ' �:,1Fj 7._ This Declaration .shall, inure to nefi� of the, parties, heirs, successors and assigns. •8. This Declaration may. be recorded in the Public Records of Palm Beach County.r Florida. , !1D .4 fflu Q . . • . IN WI NESS- WHEREOF,, the party has executed this Basement, Use, Ma tenance. and Declaration Agreement the day and year first'.abo written. Leo A. Bia r STATE OF FLORi w COUNTY OF PALM B Before me th personally appeared Leo A. Blair to me well, known and- kMWn , o me to be the person described in and who executed saidaent for the putposes therein expressed. WITNESS my hand `hnd official seal, this day of May, 1987. .Bpi ..' . *ary lic °IVO7aPUB�� STILE�D�° '` ' 2 (Seal) ri, MY COMMISSION EX PIKES AUG 281987 IONDED 7HRU GENERAL RM ANCE UND ^; i i �'• �� 17 • lsrr''r�J •' fu• Q., LA 5 EXHIBIT "A" Parking ?*real The West 4.7.50 fae -t of the Fist 67.50 feet of the 'North 5.20' feet of Lot 5, The' WesK 47..50 feet of th-e :East i 6 0 feat of the South 15,40 feet of Lot, 4; -all ip B 94; Delray baacli'(forseriy'Lintoei), Pals Bhach- Florida, aebprding to the Plat thereof r.aeoeded ia' Eool(.l; Page 3 (sheet 2) of the Public Records c�fr s Beach County, Florida. 0. , .tip �- � r , , • Q CIO i • p qu in AID - .• .J� MEMORANDUM TO: Mayor and City Commissioners FROM: Catherine M. Kozol, Asst. City Attorney /Police Legal Advisor THROUGH: City Attorney DATE: May 28, 2013 SUBJECT: AGENDA ITEM 8.J. - REGULAR COMMISSION MEETING OF JUNE 4, 2013 STATE AND LOCAL TASK FORCE AGREEMENU/DEPARTMENT OF JUSTICE DEA ITEM BEFORE COMMISSION This is a State and Local Task Force Agreement between the Drug Enforcement Administration (DEA) and the Delray Beach Police Department. BACKGROUND This Agreement is identical to the previous agreement and renews the termination date from May, 2013 until September, 2013. This Agreement allows for one officer from the Delray Beach Police Department to join the DEA Task Force and work under DEA's direct supervision to disrupt the illicit drug traffic in South Florida. The Delray Beach Police Department will continue to pay the officer's salary, benefits and overtime. The DEA will, subject to the availability of funds, reimburse the Delray Beach Police Department for overtime up to $17,202.25. Also attached to the Agreement is the Certification regarding lobbying and drug free workplace requirements. This form insures that the Delray Beach Police Department maintains a drug free workplace and does not use federal funds to lobby any official or employee for Federal grants or agreements. It also maintains that we have not been criminally or civilly charged with any of the enumerated offenses by a government agency. FUNDING SOURCE DEA and the Delray Beach Police Department. RECOMMENDATION The City Attorney's Office recommends approval. a U.S. DEPARTMENT OF JUSTICE OFFICE OF JUSTICE PROGRAMS OFFICE OF THE COMPTROLLER CERTIFICATIONS REGARDING LOBBYING; DEBARMENT, SUSPENSION AND OTHER RESPONSIBILITY MATTERS; AND DRUG -FREE WORKPLACE REQUIREMENTS Applicants should refer to the regulations cited below to determine the certification to which they are required to attest. Applicants should also review the instructions for certification included in the regulations before completing this from. Signature of this form provides for compliance with certification requirements under 28 CFR Part 69, "New Restrictions on Lobbying" and 28 CFR art 67, "Government -wide Department and Suspension (Nonprocurement) and Government -wide Requirements for Drug -Free Workplace (Grants)." The certifications shall be treated as a material representation of fact upon reliance will be placed when the Department of Justice determines to award the covered transaction, grant, or cooperative agreement. 1. LOBBYING As required by Section 1352 Title 31 of the U.S. Code, and implemented at 28 CFR Part 69, for persons entering into a grant or cooperative agreement over 100,000, as defined at 28 CFR Part 69, the applicant certifies that: (a) No Federal appropriate funds have been paid or will be paid, by or on behalf of the undersigned, to any person for in- tiuencing or attempting to Influence an officer or employee of any agency, a Member or Congress, an officer or employee of Congress, or an employee of a Member of Congress in con- nection with the making of any Federal grant, the entering into of any cooperative agreement, and extension, continuation, renewal, amendment, or modification of any Federal grant or cooperative agreement; (b) if any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or at- tempting 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 grant or cooperative agreement, the undersigned shall complete and submit Standard Form - LLL, "Disclosure of Lobbying Activities," in accordance with its instructions; ((c The undersigned shall require that the lan uage of this cer- fificallon be included in the award documents for all subawards at all tiers (including subgrants, contracts under grants and cooperative agreements, and subcontracts) and that all sub - recipients shall certify and disclose accordingly. SNSBL SUSPENSION, AND OTHER REPOI IIW MATR (DIRECT RECIPIENT) As required by Executive Order 12549 Debarment and Suspension, and implemented at 28 CFR Prt 67, for prospec- tive participants in primary covered transactions, as defined at 28 CFR Part 67, Section 67.510 - A. The applicant certifies that it and its principals: (a) Are not presently debarred, suspended, proposed for debar- ment declared ineligible sentenced to a denial of Federal benefits by a State or federal court, or voluntarily excluded from covered transactions by any Federal department or agency; (b) Have not within a three -year period preceding this applica- tion been convicted of or had a civil jodgment rendered against them for commission of fraud or a criminal offense in connec- tion with obtaining, attempting to obtain, or performing a public (Federal Stale, or local) transaction or contract under a public transaction; violation of Federal or State antitrust statutes or commission of embezzlement theft forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property; civilAre y harged bynaygovernmental entithe(Feiderali State, o local} with commission of any of the offenses enumerated in paragraph (1)(b) of this certification; and (d) Have not within a three -year period preceding this applica- tion had one or more public transactions (Federal, State, or local) terminated for cause or default; and B. Where the applicant is unable to certify to any of the statements in this certification, he or she shall attach an explanation to this application. 3, DRUG -FREE WORKPLACE (GRANTEES OTHER THAN INDIVIDUALS) As required by the Drug -Free Workplace Act of 1988, and implemented ai 28 CFR Part 67, Subpart F for grantees as defined at 28 CFR Part 67 Sections 67. 15 and 67.620 - A. The applicant certifies that it will or will continue to provide a drug -free workplace by: (a) Publishing a statement notifying employees that the unlawful manufacture, distribution, dispensing, possession, or use of a controlled substance is prohhibited in the grantee's workplace and specifyin the actions that will be taken against employees for violation o�such prohibition; (b) Establishing an on -going drug -free awareness program to inform employees about - (1) The dangers of drugs abuse in the workplace; (2) The grantee's policy of maintaining a drug -free workplace; ass stance programs andunseling, rehabilitation, and employee (4) The penalties that may, be imposed upon employees for drug abuse violations occurring in the workplace; (c) Making it a requirement that each employee to be engaged in the performance of the grant be given a copy of the state- ment required by paragraph (a); (d) Notifyin the employee in the statement requirea oy paragraph ?a) that, as a condition of employment under the gran(, the employee will- OJP FORM 406116 (3 -91) REPLACES OJP FORMS 406112, 406213 AND 406114 WHICH ARE OBSOLETE. (1) Abide by the terms of the statement; and (2) Notify the employer in writing of his or her conviction for a violation of a criminal drug statute occurring in the workplace no later than five calendar days after such conviction; (e) Notifying. the agency, in writing, within 10 calendar days affter receiving notice under subparagraph (d (2) from an emplo ee or otherwise receiving actual notice of such convic- tion. Employers of convicted employees must provide notice including position tale to: Department of Justice, Office of Justice Programs, ATf N: Control Desk, 633 Indiana Avenue, N.W. Washington D.C. 20531. Notice shall include the iden- tification number(sf of each affected grant; (f) Taking one of the following actions, within 30 calendar days of receiving notice under subparagraph (d)(2), with respect to any employee who is so convicted - (1) Taping appropriate personnel action against such an employee, up to and including termination, consistent with the requirements of the Rehabilitation Act of 1973, as amended; or (2) Requiring such employee to participate satisfactorily in a drug abuse assistance or rehabilitation program approved for such purposes by a Federal, State, or local health, law enforce- ment, or other appropriate agency; Jg) Making a good faith effort to continue to maintain a dru - ree work lace through implementation of paragraphs (a), (b), (c), (d), (e�, and (f). B. The grantee may insert in the space provided below the site(s) for the performance of work done in connection with the specific grant: Place of Performance (Street address, city, country, state, zip code) Check ❑ if there are workplace on file that are not identified here. Section 67, 630 of the regulations provides that a grantee that is a State may elect to make one certification in each f=ederal fiscal year. A copy of which should be included with each ap plication for Department of Justice funding. States and State agencies may elect to use OJP Form 406117. Check ❑ if the State has elected to complete OJP Form 406117, DRUG -FREE WORKPLACE (GRANTEES WHO ARE INDIVIDUALS) As required b the Drug -Free Workplace Act of 1988, and implemented at 28 CFR Part 67, Subpart F, for .grantees, as defined at 28 CFR Part 67; Sections 67.615 and 67.620 - A. As a condition of the grant I certify that I will not engage in the unlawful manufacture distribution, dispensing, posses- sion, or use of a controlled substance in condition any activity with the grant; and S. If convinced of a criminal drug offense resulting from a violation occurring during the conduct of any grant activity, I will report the conviction, in writing within 10 calendar days of the conviction, to: Department o{ Justice, Office of Justice Programs, ATTN: Control Desk, 633 Indiana Avenue, N.W., Washington, D.C. 20531. As the duly authorized representative of the applicant, I hereby certify that the applicant will comply with the above certifications. 1. Grantee Name and Address: Delray Beach Police Department 300 West Atlantic Avenue Delray Beach, FL 33444 2. Application Number and/or Project Name 3. Grantee IRSNendor Number West Palm Beach Task Force 4. Typed Name and Title of Authorized Representative Chief Anthony Strianese 5. Signature �S Ca me M. Kozo/ Ass . City``Atto hey Approved as to fo mand legal sufficiency 6. Date Appendix E TACTICAL DIVERSION TASK FORCE AGREEMENT This agreement is made this 16th day of May, 2013, between the United States Department of Justice, Drug Enforcement Administration (hereinafter "DEA "), and the Delray Beach Police Department (hereinafter "DBPD "). The DEA is authorized to enter into this cooperative agreement concerning the use and abuse of controlled substances under the provisions of 21 U.S.C. § 873. WHEREAS there is evidence that trafficking in controlled substance pharmaceuticals and /or listed chemicals exists in the South Florida area and that such illegal activity has a substantial and detrimental effect on the health and general welfare of the people of South Florida, the parties hereto agree to the following: 1. The West Palm Beach Task Force will perform the activities and duties described below: a. Investigate, disrupt and dismantle individuals and /or organizations involved in diversion schemes (e.g., "doctor shopping ", prescription forgery, and prevalent retail -level violators) of controlled pharmaceuticals and /or listed chemicals in the South Florida area, b, investigate, gather and report intelligence data relating to trafficking of controlled pharmaceuticals and /or listed chemicals; and c. Conduct undercover operations where appropriate and engage in other traditional methods of investigation in order that the Task Force's activities will result in effective prosecution before the courts of the United States and the State of Florida. 2. To accomplish the objectives of the West Palm Beach Task Force, the DBPD agrees to detail one (1) experienced officer to the West Palm Beach Task Force for a period of not less than two years. During this period of assignment, the DBPD officer will be under the direct supervision and control of a DEA supervisory Special Agent assigned to the Task Force. 3. The DBPD officer assigned to the Task Force shall adhere to DEA policies and procedures. Failure to adhere to DEA policies and procedures shall be grounds for dismissal from the Task Force. 4. The DBPD officer assigned to the Task Force shall be deputized as Task Force Officers of DEA pursuant to 21 U.S.C. Section 878. 5. To accomplish the objectives of the West Palm Beach Task Force, DEA will assign four (4) Special Agents and one (1) Diversion Investigator to the Task Force. DEA will also, subject to the availability of annual Diversion Control Fee Account (DCFA) fiends or any continuing resolution thereof, provide necessary funds, vehicles, and equipment to support the activities of the DEA Special Agents and DBPD officer assigned to the Task Force. This support will include; vehicles, office space, office supplies, travel fiends, fiends for the purchase of evidence and information, investigative equipment, training, and other support items, as available DCFA fluids permit. Task Force officer must record their work hours via DEA's activity reporting system. 6. During the period of assignment to the West Palm Beach Task Force, the DBPD will be responsible for establishing the salary and benefits, including overtime, of the officer assigned to the Task Force, and for making all payments due them. DEA will, subject to availability of funds, reimburse the agency /department for overtime payments made by it to the DBPD officer assigned to the West Palm Beach Task Force for overtime, up to a sum equivalent to 25 percent of the salary of a GS -12, step 1, (RUS) Federal employee (currently 17,202.25 per officer. Note: Task Force Officer's overtime "Shall not inclurle any costs for benefits, such as refirentent, TICA, and other expenses." 7. In no event will the DBPD charge any indirect cost rate to DEA for the administration or implementation of this agreement. 8. The DBPD shall maintain on a current basis complete and accurate records and accounts of all obligations and expenditures of funds under this agreement in accordance with generally accepted accounting principles and instructions provided by DEA to facilitate on -site inspection and auditing of such records and accounts. 9. The DBPD shall permit and have readily available for examination and auditing by DEA, the United States Department of Justice, the Comptroller General of the United States, and any of their duly authorized agents and representatives, any and all records, documents, accounts, invoices, receipts or expenditures relating to this agreement. The DBPD shall maintain all such reports and records until all litigation, claim, audits and examinations are completed and resolved, or for a period of three (3) years after termination of this agreement, whichever is later. 10. The DBPD shall comply with Title VI of the Civil Rights Act of 1964, Section 504 of the Rehabilitation Act of 1973, the Age Discrimination Act of 1975, as amended, and all requirements imposed by or pursuant to the regulations of the United States Department of Justice implementing those laws, 28 C.F.R. Part 42, Subparts C, F, G, H and 1, 11. The DBPD agrees that an authorized officer or employee will execute and return to DEA the attached OJP Form 4061/6, Certification Regarding Lobbying; Debarment, Suspension and Other Responsibility Matters; and Drug -Free Workplace Requirements, The DBPD acknowledges that this agreement will not take effect and no Federal funds will be awarded to the DBPD by DEA until the completed certification is received. 12, When issuing statements, press releases, requests for proposals, bid solicitations, and other documents describing projects or programs fiinded in whole or in part with Federal money, the DBPD shall clearly state: (1) the percentage of the total cost of the program or project which will be financed with Federal money and (2) the dollar amount of Federal fiends for the project or program. 13. The term of this agreement sliall be effective from the date in paragraph number one until September 30, 2013. This agreement may be terminated by either party on thirty days' advance written notice. Billing for all outstanding obligations must be received by DEA within 90 days of the date of termination of this agreement. DEA will be responsible only for obligations incurred by DBPD during the term of this agreement. For the Drug Enforcejnent Administration: Mark R. Trouville Special Agent in Charge Date: artment: Date: Mayor, City of Delray Beach Cat h rine M. Kozo V, A Approved as to form an legal Date: Date: 5/28/13 City Attorney efficiency MEMORANDUM TO: Mayor and City Commissioners FROM: Louie Chapman, Jr., City Manager DATE: May 30, 2013 SUBJECT: AGENDA ITEM 8.K. - REGULAR COMMISSION MEETING OF JUNE 4, 2013 RESOLUTION NO. 31-13 ITEM BEFORE COMMISSION This is a resolution assessing costs for abatement action required to remove nuisances on 11 properties throughout the City. BACKGROUND The resolution sets forth the actual costs incurred and provides the mechanisim to attach liens against the properties if the assessments remain unpaid. RECOMMENDATION Recommend approved of Resolution No. 31 -13. RESOLUTION NO. 31 -13 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, PURSUANT TO CHAPTER 100 OF THE CODE OF ORDINANCES OF THE CITY OF DELRAY BEACH, ASSESSING COSTS FOR ABATING NUISANCES UPON CERTAIN LAND(S) LOCATED WITHIN THE CITY OF DELRAY BEACH AND PROVIDING THAT A NOTICE OF LIEN SHALL ACCOMPANY THE NOTICE OF ASSESSMENT; SETTING OUT ACTUAL COSTS INCURRED BY THE CITY TO ACCOMPLISH SUCH ABATEMENT AND LEVYING THE COST OF SUCH ABATEMENT OF NUISANCES; PROVIDING FOR AN EFFECTIVE DATE AND FOR A DUE DATE AND INTEREST ON ASSESSMENTS; PROVIDING FOR THE RECORDING OF THIS RESOLUTION, AND DECLARING SAID LEVY TO BE A LIEN UPON THE SUBJECT PROPERTY FOR UNPAID ASSESSMENTS. WHEREAS, the City Manager or his designated representative has, pursuant to Chapter 100 of the Code of Ordinances, declared the existence of a nuisance upon certain lots or parcels of land, described in the list attached hereto and made a part hereof, for violation of the provisions of Chapter 100 of the Code of Ordinances; and, WHEREAS, pursuant to Section 100.21 and 100.22 of the Code of Ordinances of the City of Delray Beach, the City Manager or his designated representative has inspected said land(s) and has determined that a nuisance existed in accordance with the standards set forth in Chapter 100 of the Code of Ordinances, and did furnish the respective owner(s) of the land(s) described in the attached list with written notice of public nuisance pursuant to Sections 100.21 and 100.22 of the Code of Ordinances describing the nature of the nuisance(s) and sent notice that within seven (7) days from the date of said notice (forty -two (42) days in the case of violation of Section 100.04 pertaining to seawalls) they must abate said nuisance, or file a written request for a hearing to review the decision that a nuisance existed within five (5) days from the date of delivery of said notice, failing which the City of Delray Beach would proceed to correct this condition by abating such nuisance, and that the cost thereof would be levied as an assessment against said property; and, WHEREAS, the property owner(s) named in the list attached hereto and made a part hereof did fail and neglect to abate the nuisance(s) existing upon their respective lands or to properly request a hearing pursuant to Section 100.21 and 100.22 within the time limits prescribed in said notice and Chapter 100 of the Code of Ordinances, or if the property owner(s) did request and receive a hearing, said property owner(s) failed and /or neglected to abate such nuisance(s) within the time designated at the hearing wherein a decision was rendered adverse to the property owner(s); and, WHEREAS, the City of Delray Beach, through the City Administration or such agents or contractors hired by the City Administration was therefore required to and did enter upon the land(s) described in the list attached and made a part hereof and incurred costs in abating the subject nuisance(s) existing thereon as described in the notice; and, WHEREAS, the City Manager of the City of Delray Beach has, pursuant to Chapter 100 of the Code of Ordinances of the City of Delray Beach, submitted to the City Commission a report of the costs incurred in abating said nuisance(s) as aforesaid, said report indicating the costs per parcel of land involved; and, WHEREAS, the City Commission of the City of Delray Beach, pursuant to Chapter 100 of the Code of Ordinances desires to assess the cost of said nuisance(s) against said property owner(s), NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AS FOLLOWS: Section 1. That assessments in the individual amounts as shown by the report of the City Manager of the City of Delray Beach, involving the City's cost of abating the aforesaid nuisances upon the lots or parcels of land described in said report, a copy of which is attached hereto and made a part hereof, are hereby levied against the parcel(s) of land described in said report and in the amount(s) indicated thereon. Said assessments so levied shall, if not paid within thirty (30) days after mailing of the notice described in Sec. 3, become a lien upon the respective lots and parcel(s) of land described in said report, of the same nature and to the same extent as the lien for general city taxes and shall be collectible in the same manner as mortgages and foreclosures are under state law. Section 2. That such assessments shall be legal, valid and binding obligations upon the property against which said assessments are levied. Section 3. That the City Clerk of the City of Delray Beach is hereby directed to immediately mail by first class mail to the owner(s) of the property, as such ownership appears upon the records of the County Tax Assessor, notice(s) that the City Commission of the City of Delray Beach at the June 4, 2013 meeting has levied an assessment against said property for the cost of abatement of said nuisance by the City, and that said assessment is due and payable within thirty (30) days after the mailing date of said notice of assessment, after which a lien shall be placed on said property, and interest will accrue at the rate of 8% per annum, plus reasonable attorney's fees and other costs of collecting said sums. A Notice of Lien shall be mailed, along with the Notice of Assessment and this resolution. Section 4. That this resolution shall become effective thirty (30) days from the date of adoption and the assessment(s) contained herein shall become due and payable thirty (30) days after the mailing date of the notice of said assessment(s), after which a lien shall be placed on said 2 Res. No. 31 -13 property(s), and interest shall accrue at the rate of eight (8) percent per annum plus, if collection proceedings are necessary, the costs of such proceedings including a reasonable attorney's fee. Section 5. That in the event that payment has not been received by the City Clerk within thirty (30) days after the mailing date of the notice of assessment, the City Clerk is hereby directed to record a certified copy of this resolution in the public records of Palm Beach County, Florida, and upon the date and time of recording of the certified copy of this resolution a lien shall become effective on the subject property which shall secure the cost of abatement, interest at the rate of 8 %, and collection costs including a reasonable attorney's fee. ATTEST: PASSED AND ADOPTED in regular session on this 4`h day of June, 2013. City Clerk MAYOR This instrument was prepared by: Brian Shutt, City Attorney 200 N.W. 1" Avenue Delray Beach, Florida 33444 Res. No. 31 -13 COST OF ABATING NUISANCES UNDER CHAPTER 100 OF THE CODE OF ORDINANCE PROPERTY DESCRIPTION OWNER ASSESSMENT 413 SW 15TH AVENUE CARVER PARK LOT 10 BLOCK 3 PCN 12 43 46 17 41 003 0100 CASE NO. NA 13 -37081 Lizzie McDowell 413 SW 15th Avenue Delray Beach, Florida 33444 $ 125.00 Invoice No. 38544 $ 55.00 Admin Fee $ 180.00 606 SW 4TH AVENUE ROSEMONT PARK DELRAY LOT 23 BLOCK 1 PCN 12 43 46 20 14 001 0230 CASE NO. RN 13 -37843 Portalis Pierre 1027 SW 4th Avenue Delray Beach, Florida 33444 $ 75.00 Invoice No. 38545 $ 55.00 Admin Fee $ 130.00 VAC LOT N OF 2955 FL BLVD TROPIC ISLE 3RD SECTION LOTS 411 & 412 CASE NO. 13 -36044 Katharine D. Martens 589 Deerfield Drive Melbourne, Florida 32940 $ 195.00 Invoice No. 38546 $ 55.00 Admin Fee $ 250.00 401 SW 8TH AVENUE ROSEMONT GARDENS UNIT A LOT 1 BLOCK 2 PCN 12 43 46 17 44 002 010 CASE NO. RN 13 -38632 Golam & Andrea Mamun 119 Old Airport Road #275 La Grange, GA 30240 $ 125.00 Invoice No. 38547 $ 55.00 Admin Fee $ 180.00 810 SW 5TH AVENUE ROSEMONT VILLAS UNIT B LOT 10 PCN 12 43 46 20 33 000 0100 CASE NO. NA 13 -37300 Felicia Dickson 146 SE 27th Place Boynton Beach, Florida 33435 $ 75.00 Invoice No. 38548 $ 55.00 Admin Fee $ 130.00 107 NW 10TH AVENUE WEST SIDE HEIGHTS DELRAY LOT 11 BLOCK A PCN 12 43 46 17 26 001 0110 CASE NO. RN 13 -37505 Janie A. Wagner 252 NE 15th Street Delray Beach, Florida 33444 $ 50.00 Invoice No. 38549 $ 55.00 Admin Fee VIOLATION IS: SECTION 100.01— LAND TO BE KEPT FREE OF DEBRIS, VEGETATION, AND MATTER CONSTITUTES HAZARDS; DECLARED NUISANCE $ 105.00 RES NO. 31 -13 COST OF ABATING NUISANCES UNDER CHAPTER 100 OF THE CODE OF ORDINANCES PROPERTY DESCRIPTION OWNER ASSESSMENT 115 NW 18TH STREET 3RD ADD TO HIGH ACRES LOT 7 BLOCK A PCN 12 43 46 08 12 001 0070 CASE NO. RN 13 -34102 Fred Peipman and James Engle 643 East 3rd Avenue Durango, CO 81303 $ 145.00 Invoice No. 38550 $ 55.00 Admin Fee $ 200.00 319 SW 11TH AVENUE BELLEHAVEN UNIT B LOT 17 PCN 12 43 46 17 39 000 0170 CASE NO. NA 13 -37802 Elberta Crawford 223 NE 11th Avenue Boynton Beach, Florida 33435 $ 125.00 Invoice No. 38551 $ 55.00 Admin Fee $ 180.00 1127 MIAMI BLVD. SILVER TERRACE DELRAY LOTS 7, 8 7 S 1/2 OF LOT 9 BLOCK 6 PCN 12 43 46 21 13 006 0070 CASE NO. NA 13 -37553 John B. Lynch Estate 1127 Miami Blvd Delray Beach, FL 33483 $ 145.00 Invoice No. 38553 $ 55.00 Admin Fee $ 200.00 965 NW 37TH TERRACE SUNFLOWER DELRAY SEC 1 REPLAT LOT 11 -A BLOCK 1 PCN 12 42 46 12 10 001 0110 CASE NO. RN 13 -38780 Christopher Litman P.O. Box 480458 Delray Beach, FL 33448 $ 125.00 Invoice No. 38556 $ 55.00 Admin Fee $ 180.00 3118 LOWSON BLVD SHERWOOD PARK W 100 FT OF LOT 3 BLOCK 3 PCN 12 42 46 24 01 003 0032 CASE NO. NA 13 -37631 Joseph E. Wise ley Estate 3118 Lowson Blvd. Delray Beach, FL 33445 $ 135.00 Invoice No. 38557 $ 55.00 Admin Fee $ 190.00 VIOLATION IS: SECTION 100.01— LAND TO BE KEPT FREE OF DEBRIS, VEGETATION, AND MATTER CONSTITUTES HAZARDS; DECLARED NUISANCE RES NO. 31 -13 MEMORANDUM TO: Mayor and City Commissioners FROM: Jasmin Allen, Planner Paul Dorling, AICP, Director of Planning and Zoning THROUGH: Louie Chapman, Jr. City Manager DATE: May 30, 2013 SUBJECT: AGENDA ITEM 8.L. - REGULAR COMMISSION MEETING OF JUNE 4, 2013 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 May 20, 2013 through May 31, 2013. BACKGROUND This is the method of informing the City Commission of the land use actions, taken by designated Boards, which may be appealed to the City 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, an action must be taken to place the item on the next meeting of the Commission as an appealed item. REVIEW BY OTHERS Planning and Zoning Board Meeting of f May 20, 2013 No appealable items were considered by the Planning and Zoning Board. The following items which were considered by the Board will be forwarded to the City Commission for action: A. Recommended denial on a 4 to 3 voteof the conditional use request to allow an increase density in excess of 30 residential units per acre (69.52 units per acre proposed); and, denial on a 6 to 1 vote for an increase in the building height in excess of 48 feet (60 feet proposed), for Uptown Delray, a proposed mixed -use development that includes the demolition of the existing commercial building and removal of the existing parking lot and construction of 146 residential apartment units and 7,854 square feet of retail /office space in a 6 -story building and 6 -level structured parking garage. The subject site is located on the north side of SE 2nd Street between SE 4th Avenue and SE 5th Avenue. B. Recommended approval with conditions (7 to 0), of the abandonment of a portion the sixteen foot wide north -south alleyway lying within Block 102, Town of Delray and extending 244.93 feet north of SE 2nd Street, in conjunction with the Uptown Delray development. C. Recommended approval (6 to 0, Craig Spodak, left the meeting) of the abandonment of the remaining east -west alleyway and a portion of the north -south alleyway lying within Block 1 Belair Heights, in conjunction with the Delray Beach Fairfield Inn, located on the south side of West Atlantic Avenue, between SW 9th Avenue and SW 10th Avenue. D. Recommended approval with conditions (6 to 0), of a conditional use request to allow the establishment of a church for Cristo Para Todas Las Naciones (Christ for all Nations) within the Congress Square shopping center, located at the southwest corner of West Atlantic Avenue and Congress Avenue (2280 West Atlantic Avenue, Suite # 2206). E. Postponed with direction (6 to 0), the City initiated amendment to the Land Development Regulations (LDR), by amending Section 2.4.3 "Submission Requirements ", Subsection (D) "Preliminary Engineering Plans" and Subsection (F) "Final Engineering Plans" to provide for bus shelters; enacting a new Section 6.1.14 "Transit" to provide for bus shelters. Site Plan Review and Appearance Board Meeting of May 22, 2013 1. Approved with conditions (4 to 0, Mark Gregory stepped down and Jason Bregman and Scott Porten absent) the establishment of a blanket sign program for Worthing Place, located at the southwest corner of East Atlantic Avenue and SE 2nd Avenue (32 SE 2nd Avenue). 2. Approved (4 to 0, Mark Gregory stepped down), an amendment to blanket sign program for The Shops at Latitude, located at the northwest corner of South federal Highway and Lindell Boulevard (3100 South Federal Highway), to allow Orange Theory Fitness signs to exceed the maximum letter height and to use their corporate trademark. 3. Approved with conditions (5 to 0), a Class V site plan and landscape plan associated with the demolition of an existing 4 -unit structure and construction of a 3 -story townhouse building that will accommodate four units for Windsor Townhomes, located at the northeast corner of Venetian drive and Ingraham Avenue (141 Venetian Drive). The architectural elevation plan was approved on a 4 to 1 vote (Alice Finst dissenting). 4. Approved with conditions (5 to 0), a Class III site plan modification associated with the conversion of a two -story retail building to mixed -use with retail on the ground floor and office on the second floor for The Hannah Building(fka Mercer Wenzel), located at the northeast corner of East Atlantic Avenue and NE 4thAvenue (401 East Atlantic Avenue). The architectural elevation plan was tabled by the Board. RECOMMENDATION By motion, receive and file this report. Attachment: Location Map • CITY COMMISSION MEETING - _ _ _ CITYLIMITS . _ _ _ N APPEALABLE ITEMS ONE MILE LOCATION MAP PLANNING AND ZONING GRAPHIC SCALE DEPARTMENT JUNE 4, 2013 SPRAB: _ 1. WORTHING PLACE 3. WINDSOR TOWNHOMES 2. ORANGE THEORY FITNESS 4. THE HANNAH BUILDING -- DIGITAL BASE MAP SYSTEM -- -- DLS -- MAP REF: S: \Planning & Zoning \DBMS \File— Cab \CC— DDC \6 -4 -13 MEMORANDUM TO: Mayor and City Commissioners FROM: Tim Simmons, Parks Superintendent Linda Karch, Director of Parks and Recreation THROUGH: Louie Chapman, Jr., City Manager DATE: May 24, 2013 SUBJECT: AGENDA ITEM 8.M.1 - REGULAR COMMISSION MEETING OF JUNE 4, 2013 BID AWARD/ COMPLETE PROPERTY SERVICES OF SOUTH FLORIDA, INC. ITEM BEFORE COMMISSION City Commission is requested to approve Bid No. 2013 -33, Landscape Maintenance Contract at Atlantic Avenue Gateway Feature to Complete Property of South Florida, Inc. the lowest bid in the amount of $29,180.00. BACKGROUND This bid award is for the annual landscape maintenance contract for the Atlantic Avenue Gateway Feature. Included in the specs are additional cost for sod replacement, plant & tree installation, fertilization, additional pest control and fire ant control. Two landscape companies submitted bids on May 14, 2013: Complete Property Services of South Florida, Inc. quoted $29,180.00 and Gator Landscape & Irrigation $37,506.00. Parks and Recreation recommends Bid No. 2013 -33 be awarded to Complete Property Service of South Florida, Inc. the lowest bidder. Complete Property Service has been doing business with the City of Delray Beach and their performance meets all requirements. This bid award is for a one -year term and may be renewed by the City Manager for two additional one - year terms. The City Manager will brief the Commission prior to renewal to determine whether the Commission supports the renewal. Funding for this landscape maintenance contract will be reimbursed through an Interlocal Agreement between the City of Delray Beach and the CRA. FUNDING SOURCE Funding is from the Beautification Fund account #119 - 4144 -572 -46.40 (Beautification Maintenance). RECOMMENDATION Staff recommends Commission approval to award Bid No. 2013 -33 to Complete Property Services of South Florida, Inc. in the amount of $29,180.00. CITY OF DELRAY BEACH LS- ATLANTIC AVENUE GATEWAY FEATURE ANNUALCONTRACT Date: May 14, 2013 1110: #2013-33 Camplete Property ofS Uih$land", J." G.1 Lmdsc.pc 4, brig -ripe ITEM Annual P DESCRIPCION Q.-thy Area #1 Arc. 4 Ar-Al Arenk2 I M-R, Lir. Rimming 44 5125.00 5125.00 5290.0 5290.00 Ma Nl.-. (MI, S5.500-09 55,540,00 S11'760 .00 S12,760.41). 1 Edsiug 22 $10.90 910.00 518.50 $19.50 Ewry other -in cycle 5120.90 $220.00 5407,04 $-139.00 3 Weed Canuol 24 $80.00 580.0 $1700 $17.0u Shrub Bud,- M"- . maolh S1,920.00 51920.00 S404.00 S408.00 4 Pruning $75M 575.00 $16,00 51600 a. Shrubs - Pnce a month 12 S900.110 S900A0 S192.00 5192.110 b, Trees & Pahns - once a month 12 $25.00 525.0 $16,00 $16,00 53011.00 S300.00 5191.0-0 5192.00 a. Accent Trees - every other month 6 S15.00 $15.00 $18K $18.no $90,11 $90,00 5108.00 '5106.00 5 Litlnr Control 260 $300 $3.00 $S.un $5,00 5 days asveek - Mon, - Fri, 5780.00 578900 $1 ,300.00 $000.00 6 Chemicals Aplications a, Turflaaccticide PrOgr.m -2 times. YR 2 $4900 $90.00 S75.00 575.00 5180.00 9180.40 5150.00 5150.00 h. Shrub Insecticide Pro - as needed 0. 50,00 $0,00 $000 $000 c, Fire API Control - as needed 0 $0,00 50,00 S0.00 Wica d. Diseaso Control 0 5000 $0,00 S9.09 $9.90 e. Turf Fertilizer - Celebration Sod 2 $75,00 $75,00 SK.Co $80,00 2 limes a year S150.00 5150.00 5160.00 5160.09 E Turf Fertilizer -$L APgustble 1 $125,00 $115,00 580.90 $80.00 5125.00 S12.51DO $80.00 S8030 g, St Augustine Weed & Feed 2 $125110 $125.0 $90.00 $90.00 2 times a year 5254.00 S1s0.pu 5100.00 $180.00 IL St, Augustine Insect Fertilizer 2 $123.00 $125.00 $90.00 $9000 2 limes a year $250A0 S250.00 5180000 5180.00 i. Shnde Trce Fertilization 2 $7,00 $75.ou S85 on $8500 4 times n veer 5150.00 5150.00 $170.00 5170.00 j, Shade Tree Fertilization 4 MOM Si00A0 570.00 $70.00 4 t to a year 5400.00 5400.00 5280.00 5284.00 l:. Shade Tree Fertilimbon 3 S175.00 5175.00 ,$75,00 $75 on 4 times a veer, S525.00 5535,11 $225,00 5125.00 7 Mulch 3 $950.00 Mo.co $650,00 $mu.uu 3 times a year 52,850.00 52,850,00 $1,950.00 %7,950.00 S14 ,590.00 514,590.0 $18,742.00 $18,764.00 TOTAL BID PRCE AREA 1 AND 2 329,180.00 $37,506.00 PRTCTNG FOR ADDITTONAL WORK (IF NEEDED) A Sod Replacement $0.0 $0.75 *St. Augustine - pur s tl. Sod Replacement $1.00 $0,00 * Celebration - per s . ft. B .Plant& Trce Installation $28,00 $16,00 labor per hour! er man c Ferl.iliA g $28.04 516.0 labor hourl erman D Additional Pest Control $100.00 $125.00 (price per 50 gallon application of insecticide) Additionnt Pest Control $80.00 $125.09 rice er SD 000-1 a licatiPn of insecticide F Fire Ant Control $25,00 $16.00 (labor per hour/ per man Comments Error On Total Error On Total Bid Page Bid Pa e Surety Performance I Payment Bond Yes Yes Equipment Descriptims List Yes Yes Floridn Pesticide Applicator's License Yes Yes References Yes Yes Cl"ty PfDelray 11 -iuess Tax Receipt Yes Yes Federal LID, 4 35- 2210720 66- 0887772 MEMORANDUM TO: Mayor and City Commissioners FROM: Scott Pape, AICP, FCP, Senior Planner Paul Dorling, AICP, Director of Planning and Zoning THROUGH: Louie Chapman, Jr., City Manager DATE: May 29, 2013 SUBJECT: AGENDA ITEM 9.A. - REGULAR COMMISSION MEETING OF JUNE 4, 2013 CONDITIONAL USE REQUESTS/ UPTOWN DELRAY ITEM BEFORE COMMISSION The action request of the City Commission is consideration of conditional use requests to increase the building height to a maximum of 60 feet (60 feet proposed) and to allow a density increase above 30 dwelling units per acre (69.52 du /ac proposed) for Uptown Delray, a proposed mixed use development between SE 5th Avenue (Federal Highway) and SE 4th Avenue, north of SE 2nd Street. BACKGROUND The project area consists of Lots 4 through 10 and Lots 17 through 20 Block 102 of the Town of Delray subdivision. The property contains a parking lot that was constructed for the Bellsouth Telecommunication building at the northwest corner of SE 4th Avenue and SE 2nd Street. The property also contains an office building at the northwest corner of SE 5th Avenue and SE 2nd Street that was built in 1947. There are also two vacant lots located north of the office building. At its meeting of August 27, 1973, the City Commission approved a site plan modification for a third floor on the AT &T building (tka Bellsouth Telecommunication) building immediately to the west of this property. This approval included an offsite parking lot of 66 required spaces built on this property (northeast corner of SE 4th Avenue and SE 2nd Street) to address required parking for the building expansion. Per LDR Section 4.6.9(B)(3), when existing parking is diminished by an addition or enlargement and such parking had been previously required, or would be required if the use were established at this point in time, such parking spaces must be replaced and be in addition to those spaces required for the addition or enlargement. The replacement parking for Bellsouth will be provided in addition to the project parking in the development's new parking garage. These requests were considered by the Planning and Zoning Board on May 20, 2013, where a recommendation of approval to allow the increase in the residential density by the Planning and Zoning Board failed on a 3 to 4 vote (Durden, Lynch, Pierre- Louis, Shutt dissenting). Since the motion to recommend approval of the residential density failed, the recommendation of the Planning and Zoning Board is to deny the density increase. The Planning and Zoning Board then recommended denial of the building height increase on a 6 to 1 vote (Franciosa dissenting). RECOMMENDATION By Separate Motions: Move to deny the conditional use request to allow for a building height in excess of 48' (60' proposed) for Uptown Delray, by adopting the findings of fact and law contained in the staff report, and finding that the request, and approval thereof, is inconsistent with the Comprehensive Plan and does not meet criteria set forth in Sections 2.4.5(E)(5), 4.3.4(J)(4)(b)(iv), and Chapter 3 of the Land Development Regulations. Move to deny the conditional use request to allow for a density in excess of 30 units per acre (69.52 du /ac proposed) for Uptown Delray, by adopting the findings of fact and law contained in the staff report, and finding that the request, and approval thereof, is inconsistent with the Comprehensive Plan and does not meet criteria set forth in Sections 2.4.5(E)(5), 4.4.13(I), and Chapter 3 of the Land Development Regulations. IN THE CITY COMMISSION CHAMBERS OF THE CITY OF DELRAY BEACH, FLORIDA CONDITIONAL USE MODIFICATION REQUEST FOR UPTOWN DELRAY ORDER OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA 1. This conditional use request to increase the building height to a maximum of 60 feet and to increase the residential density of the project to 69.52 dwelling units per acre for the Uptown Delray development has come before the City Commission on June 4, 2013. 2. The Applicant and City staff presented documentary evidence and testimony to the City Commission pertaining to the conditional use request for the Atlantic Plaza II development. All of the evidence is a part of the record in this case. Required findings are made in accordance with Subsections I and II. COMPREHENSIVE PLAN a. Comprehensive Plan - Future Land Use Element Objective A -1: This objective requires that the property shall be developed or redeveloped as it pertains to height, in a manner so that the future use and intensity is appropriate in terms of soil, topographic, and other applicable physical considerations, is complementary to adjacent land uses, and fulfills remaining land use needs. Is this objective met? Yes No b. Future Land Use Map: The resulting use of land or structures must be allowed in the zoning district within which the land is situated and said zoning must be consistent with the applicable land use designation as shown on the Future Land Use Map. The subject property has a Future Land Use Map designation of Commercial Core and is zoned Central Business District. Future Land Use - Is project's proposed location consistent with the Future Land Use Map? ► C7 I C. Concurrence: Facilities which are provided by, or through, the City shall be provided to new development concurrent with issuance of a Certificate of Occupancy. These facilities shall be provided pursuant to levels of service established within the Comprehensive Plan. Concurrency as defined pursuant to Objective B -2 of the Land Use Element of the Comprehensive Plan must be met and a determination made that the public facility needs of the requested land use and /or development application will not exceed the ability of the City to fund and provide, or to require the provision of, needed capital improvements for the following areas: Are the concurrency requirements met as respect to water, sewer, drainage, streets and traffic, parks, open space, solid waste and schools? ► ITS d. Consistency: Will the granting of the conditional use be consistent with and further the goals and policies of the Comprehensive Plan? ► ITS II. LDR REQUIREMENTS: a. LDR Section 2.4.5(E) Required Findings: (Conditional Use): Pursuant to Section 2.4.5(E)(5), in addition to provisions of Chapter 3, the conditional use will not: Have a significantly detrimental effect upon the stability of the neighborhood within which it will be located; ii. Hinder development or redevelopment of nearby properties. Will Section 2.4.5(E)(5) be met? Yes No b. Increase in Height. Pursuant to LDR Section 4.3.4(J) (4)(b)(i)(9), an increase to a maximum height of 60' may be approved by the City Commission as a conditional use for property within the Central Core portion of the CBD (Central Business District), except for that portion within 150' of any zoning district which has a maximum height limit of 35', measured from the property line of the CBD zoned property. The City Commission may approve an increase in height to a maximum height of 60' based upon a finding of compliance with each of the enumerated criteria listed below: 2 (iii) Workforce housing units, equal to at least twenty percent (20 %) of the residential units on the top floor, shall be provided within the development onsite, offsite, or through monetary contributions as referenced in Article 4.7 (fractions shall be rounded up). The workforce housing units shall be at the low or moderate income levels and shall comply with other applicable provisions of Article 4.7. (iv) That the increase in height shall be allowed if two or more of subsections 4.3.4(J)(iv)(1), (2) or (3) are met: (1) That for each foot in height above 48 feet, an additional building setback of two feet is provided from the building setback lines which would be established for a 48 -foot tall structure. The additional setback is required from all setback liens (i.e., front, side, and rear) for the portion of the building that extends above 48 feet. In lieu of this setback requirement, buildings in the CBD zone shall adhere to the setback requirements of that district; (2) That a minimum of 50% of the ground floor building frontage consist of nonresidential uses (excluding parking); (3) That open areas, such as courtyards, plazas, and landscape setbacks, be provided in order to add interest and provide relief from the building mass. Are these requirements met? Yes No C. Increase in Density. Pursuant to LDR Section 4.4.13(1), an increase in density greater than 30 dwelling units per acre may be approved by the City Commission as a conditional use for property within the Central Core portion of the CBD, provided that 20% of the residential units above 30 dwelling units per acre in the commercial core shall be workforce housing units. The workforce housing units shall be divided between low and moderate income levels and shall be provided either onsite, offsite or through a monetary contribution. 1. The applicable performance standards for development under this section are met as follows: (a) The development offers variation in design to add interest to the elevations and relief from the building mass. 3 (b) If the building includes a parking garage as an associated structure or within the principal building, the garage elevation provides unified design elements with the main building through the use of similar building materials and color, vertical and horizontal elements, and architectural style. (c) A number of different unit types, sizes, and floor plans are available within the development. Two and three bedroom units are encouraged, as are a combination of multi -level units and flats. In projects consisting of more than twelve (12) dwelling units, the proportion of efficiency or studio type units may not exceed 25% of the total units. (d) The project design shall create an overall unified architectural character and image by the use of common elements between the building(s), parking lot, and landscaping. (e) The development provides common areas and /or amenities for residents such as swimming pools, exercise rooms, storage rooms or lockers, covered parking, gardens, courtyards or similar areas and /or amenities. (f) The development promotes pedestrian movements by providing convenient access from the residential units to the public sidewalk system. (g) The development provides opportunities to share parking, accessways, driveways, etc., with adjoining properties, or provides additional parking spaces that may be used by the public. (h) Projects fronting on Atlantic Avenue, NW /SW 5t" Avenue, NE 1St Street or SE 1St Street contain nonresidential uses on the ground floor. At least 75% of the surface area of the front street wall(s) at the ground floor area of each such building is devoted to display windows and to entrances to commercial uses from outside the building. (i) The landscape plan for the development preserves and incorporates existing native vegetation (where available), provides new landscaping that is in excess of minimum standards (in height and quantity), demonstrates innovative use of plant material, improves site design, provides useable open space or public plazas, and maximizes available areas for pedestrian interaction. 11 Are these requirements met? Yes No 3. The comments and notes set forth in the staff report are hereby incorporated herein. 4. The City Commission has applied the Comprehensive Plan and LDR requirements in existence at the time the conditional use request was submitted. 5. The City Commission finds there is ample and competent substantial evidence to support its findings in the record submitted and adopts the facts contained in the record including but not limited to the staff reports, testimony of experts and other competent witnesses supporting these findings. 6. Based on the entire record before it, the City Commission approves denies the conditional use request set forth above subject to the conditions set forth in Exhibit A, attached hereto and made a part hereof, and hereby adopts this order this 4th day of June, 2013, by a vote of in favor of approval and opposed. ATTEST: Chevelle Nubin City Clerk 5 Cary D. Glickstein, Mayor EXHIBIT A TO THE CONDITIONAL USE MODIFICATION REQUEST FOR UPTOWN DELRAY 1. Approval of a site plan by SPRAB that is in general conformance to the submitted sketch plan and addressing of the issues identified in this staff report. 2. That a finding of traffic concurrency be provided from the Palm Beach County Traffic Engineering Division. 3. That the applicant contributes toward the cost of a bus shelter ($11,000). 4. That the provision of workforce housing units be addressed per an agreement to be approved by the Community Improvement Director and executed prior to certification of the site plan. 5. That the workforce covenant include a provision that no efficiencies or studio units be utilized for that program. 6. That the bedroom walls of the one bedroom loft units be extended to the finished ceiling to qualify units for that designation. 7. That the two at -grade crosswalks in the alley be raised and additional hardscape details should be provided with the site plan submitted. PLANNING AND ZONING BOARD CITY OF DELRAY BEACH -- -STAFF REPORT - -- MEETING DATE: April 15, 2013 AGENDA ITEM: VI.A. ITEM: Condition@[ Use Request for Uptown Delray to Allow an increase in Building Height to Exceed 48' (60' Proposed) and to Exceed 30 Dwelling Units Per Acre (77.62 dulac Proposed) for a Proposed Mixed Use Development Located Between SE 5�' Avenue (Federal Highway) and SE 4th Avenue North of SE 2"d Street. GENERAL DATA: Applicant. ......... ........ - NCC Development Agent ......................... Weiner, Lynne & Thompson, P,A, Location .......................... Between SE 51' Avenue (Federal Highway and SE 40' Avenue, north of SE 2" Street. Property Size .................. 2.10 acres Future Land Use Map —.. Commercial Core Current Zoning ............... CBD (Central Business District) Adjacent Zoning ...-North: CBD East: CBD South: CBD & RM (Multiple Family Residential) Vilest: CBD Existing Land Use. ......... AT &T parking lot, vacant, and office building Proposed Land Use........ Proposed Mixed Use Project Known as Uptown Delray including Conditional Use requests to Allow an Increase in Building Height to Exceed 48' for (60') and Exceed 30 dulac. (77.62 dulac) in connection with 163 dwelling units and 4,270 square feet of office. Water Service ................. Existing on site_ Sewer Service ................ Existing on site. w. C III 1111 p�� � u11 Log � � � ■fit■:. e�= _ =� IM a", The action before the Board is making a recommendation to the City Commission on the following requests for conditional use approval, pursuant to Land Development Regulations (LDR) Section 2.4.5(E): ❑ To allow an increase to a maximum height of 60' proposed [LDR Section 4.3.4(J)(4)(b)]; and ❑ To allow a density exceeding 30 dwelling units per acre (77.62 du/ac proposed) in the Central Business District (CBD) [LDR Section 4.4.13(D)(12)]. The requests are in conjunction with Uptown Delray, a proposed mixed -use development, located between SE 5' Avenue and SE 4th Avenue, north of SE 2nd Street (approximately 2.10 acres). The project area consists of Lots 4 through 10 and Lots 17 through 20 Block 102 of the Town of Delray subdivision. The property contains a parking fat that was constructed for the Bellsouth Telecommunication building at the northwest corner of SE 4th Avenue and SE 2nD Street. The property also contains an office building at the northwest corner of SE 5`h Avenue and SE 2n6 Street that was built in 1947. There are also two vacant lots located north of the office building. At its meeting of August 27, 1973, the City Commission approved a site plan modification for a third floor on the AT &T building (fka Bellsouth Telecommunication) building immediately to the west of this property. This approval included an offsite parking lot of 66 required spaces built on this property (northeast corner of SE 4th Avenue and SE 216 Street) to address required parking for the building expansion. Per LDR Section 4.6.9(B)(3), when existing parking is diminished by an addition or enlargement and such parking had been previously required, or would be required if the use were established at this point in time, such parking spaces must be replaced and be in addition to those spaces required for the addition or enlargement. The replacement of this parking for Bellsouth will be provided in addition to the project parking in the proposed new parking garage. A new conditional use application has been submitted for an increase in building height to 60 feet and an increase the density to 77.62 dwelling units per acre. The requests are in conjunction with Uptown Delray, a proposed mixed -use development located between SE 51h Avenue and SE 4t`` Avenue, north of SE 2nd Street (approximately 2.10 acres). This conditional use application is now before the Board for consideration. The development proposal incorporates the following: ❑ Construction of two six -story buildings. The commercial component of the development consists of 4,270 square feet of retailloffice. The residential portion of the development includes 163 dwelling units comprised of 37 efficiency units; 42 one - bedroom units; and 84 two- bedroom units. ❑ The recreational amenities include a rooftop pool, clubhouse, and gym, The recreational amenity package also includes a ground level 3,842 square foot aerobicipilateslyoga room along Federal Highway. Planning and Zoning Board Staff Report: 4115113 Uptown Delray - Gonditional Use Request Page 2 ❑ Construction of a 6 level parking garage along SE 4t" Avenue_ This parking garage includes an additional 66 parking spaces that will be set aside for the use of the AT &T property on the west side of SE 4t" Avenue. ❑ Installation of sidewalks, walkways, courtyards, and associated landscaping, Nt�ilTfA1= L1�CCALI REQUIRED FINDINGS (Chapter 3), Pursuant to LDR Section 3.1.1 (Required Findings), prior to the approval of development applications, certain findings must be made in a form which is part of the official record. This may be achieved through information on the application, the staff report, or minutes. Findings shall be made by the body, which has the authority to approve or deny the development application. These findings relate to Future Land Use Map Consistency, Concurrency, Comprehensive Plan Consistency and Compliance with the LDR's as noted below. FUTURE LAND USE MAP: The use or structures must be allowed in the zone district and the zoning district must be consistentwith the land use designation. The subject property has a Future Land Use Map (FLUM) designation of Commercial Core (CC) and a zoning designation of Central Business District (CBD), which are consistent with one another. Pursuant to LDR Section 4.4.13(D)(12), multiple- family dwelling units, excluding duplexes, are permitted through the conditional use approval process at a density greater than 30 units per acre on property located south of NE 2nd Street and north of SE 2nd Street, subject to the standards and limitations of LDR Section 4.4,13(1). Per LDR Section 4.3.4(J)(4)(b)(i)(9), an increase in building height up to 60 feet is allowed as a conditiorlal use subject to the criteria of LDR Section 4.3.4(J)(4)(b). As discussed later in this report, positive findings cannot be made with respect to the referenced performance standards and criteria; thus positive findings cannot be made with respect to FLUM consistency. CONCURRENCY: Facilities which are provided by, or through, the City shall be provided to new development concurrent with issuance of a Certificate of Occupancy. These facilities shall be provided pursuant to levels of service established within the Comprehensive Plan. Water and Sewer: Water service is available via service lateral connections to: 1) an existing 8' water main along SE 4th Avenue; 2) an existing 6" water main along SE 2nd Street; and 3) an existing 12" water main along Federal Highway (SE 5th Avenue). Sewer service is available via service lateral connections to an existing a" sanitary sewer main along the alley and an existing 15" sanitary sewer main along SE 2nd Street. Fire protection is proposed to be provided via: 1) an existing fire hydrant located at the northeast corner of SE 2nd Street and Federal Highway.- 2) an existing fire hydrant located at the northeast corner of SE 2nd Street and SE 4th Avenue; 3) a proposed fire hydrant along the east side of SE 4th Avenue north of SE 2 r Street; and 4) stand pipes that provide fire suppression service to the interior of the upper floors. Planning and Zoning Board Staff Report: 4115113 Uptown Delray - Conditional Use Request Page 3 Pursuant to the Comprehensive Plan, treatment capacity is available at the City's Water Treatment Plant and the South Central County Waste Water Treatment Plant for the City at build -out. Based upon the above, positive findings can be made with respect to this level of service standard. Drainage: The preliminary drainage plans indicate that drainage will be accommodated onsite via exfltration trenches and connection to the City's stormwater collection system along SE 0 Avenue. Based upon the above, positive findings with respect to this level of service standard can be made, Streets and Traffic: The subject property is located within the City's Transportation Concurrency Exception Area (TCEA), which encompasses the CBD, CBD --RC, OSSHAD, and West Atlantic Avenue Business Corridor. The TCEA exempts the above - described areas from complying with the Palm Beach County Traffic Performance Standards Ordinance, Therefore, a traffic study is not required for concurrency purposes; however a traffic statement is necessary to keep a record of trips approved in the TCEA and for calculation of traffic impact fees. The traffic statement indicates that the development will generate 1,346 average daily trips, 63 AM peak hour trips and 119 PM peak hour trips. The traffic statement needs to be submitted to the Palm Beach County Traffic Engineering Division for concurrency review and this is attached as a condition of approval. Per LDR Section 2.4.3(E)(3), a land use application, which will add use area or establish a new use, that will result in the addition on the premises of more than 50 employees, located in the City's TCEA (Transportation Concurrency Exception Area), shall include submittal of a program to implement employer -based TDM (Transportation Demand Management) activities. These activities may include, but are not limited to, ride sharing, van pooling, and flexible work hours. The 4,270 square feet of retail/office floor area will not generate more than 50 employees. Thus provision of an employer -based TDM is not applicable to the proposed development. Parks and Recreation Facilities: The Open Space and Recreation Element of the City's Comprehensive Plan indicates in its conclusion that "The City will have sufficient recreation facilities at build -out to meet the adopted standards ". A park impact fee is collected to offset any impacts that the project may have on the City's recreational facilities. Pursuant to LDR Section 5.3.2, a park impact fee of $500.00 per dwelling unit will be collected prior to issuance of a building permit for each unit. A total fee of $81,500 will be required of this development for parks and recreation purposes. Solid Waste: The proposed 163 dwelling units will generate 84.76 tons of solid waste per year (163 units x 0.52 tons = 54.76 tons). The 4,270 square feet of retailloffice floor area will generate 21.78 tons of solid waste per year (4,270 s% ft. x 10.2 lbs. 12,000 = 21.78 tons). The Solid Waste Authority has indicated that its facilities have sufficient capacity to handle all development proposals till the year 2046, thus a positive finding with respect to this level of service standard can be made. Schools: Verification from the Palm Beach County School District regarding school concurrency has been received. CONSISTENCY: Compliance with performance standards set forth in Chapter 3 and required findings in LDR Section 2.4.5(E)(5) for the Conditional Use request shall be the basis upon which a finding of overall consistency is to be made. Other objectives and policies found in the adopted Comprehensive Plan may be used in making a finding of overall consistency. Planning and Zoning Board Staff Report: 4/15f13 Uptown Delray - Conditional' Use Request Page 4 A review of the objectives and policies of the adopted Comprehensive Plan was conducted and the following applicable objectives and policies that are relevant to the Conditional Use applications are noted: Future Land Use Element Objective A -1: Property shall be developed or redeveloped, in a manner so that the future use, intensity and density are appropriate in terms of soil, topographic, and other applicable physical considerations; encourage affordable goods and services; are complementary to and compatible with adjacent land uses; and fulfill remaining land use needs. There are no special physical or environmental characteristics of the land that would be negatively impacted by the proposed mixed -use development_ However, the intensity of the residential density and height/massing of the project will not be complimentary to the single family neighborhood south of the subject property. The development includes an intense 6 floor parking garage along SE 0 Avenue that is not required by the LDR's to provide the same building step -back that the remainder of the development must provide. The result is an intensity along SE 4th Avenue that is incompatible with the primarily single story residential neighborhood to the south. This situation is exacerbated by the waiver proposed by the applicant that would further reduce the setback along this street. The single vehicular access to this garage is located along SE 0 Avenue. This will result in a traffic pattern that will direct an uncharacteristically large number of vehicle trips immediately adjacent the single family neighborhood. The quantity of these vehicle trips is expected to erode the quality of life in this neighborhood and create safety concerns for these residences. Finally, when the Downtown Design Guidelines were created it was envisioned that the increase in height from 48 feet to 60 feet would allow for an additional 5th floor from the standard 4 floors that is achieved in 48 feet. However, the proposed buildings were designed to get 6 floors within 60 feet. This additional floor will exacerbate the perception of the massing and intensity of the development versus a 5 story project on the same property. Future Land Use Element Objective C -3: The Central Business District (CBD) and surrounding neighborhoods, including A -1 -A, Seacrest and Swinton Avenue represents the essence of what is Delray Beach i.e, a "village by the sea ". The continued revitalization of the CBD is essential to achieving the overall theme of the City's Comprehensive Plan by managing growth and preserving the charm. The following policies and activities shall be pursued in the achievement of this objective. Policy G -3.1: The CBD zoning district regulations shall facilitate and encourage rehabilitation and revitalization and shall, at a minimum, address the following: ❑ Deletion of inappropriate uses; 0 Incentives for locating retail on the ground floor with office and residential use on upper floors; ❑ Accommodating parking needs through innovative actions; ❑ Incentives for dinner theaters, playhouses, and other family oriented activities; ❑ Allowing and facilitating outdoor cafes; ❑ Incentives for mixed use development and rehabilitation; ❑ Elimination of side yard setback requirements; and ❑ Allow structural overhang encroachments into required yard areas. The proposal fails to fully provide commercial floor area on the ground floor along Federal Highway. While residential uses may not be inappropriate along SE 4t'' Avenue and SE 2" d Planning and Zoning Board Staff Report_ 4115113 Uptown Delray - Conditional Use Request Fage 5 Street, the provision of recreational facilities for the residents is an inappropriate use on the ground floor along Federal Highway. The proposed development is of such intensity that the applicant was essentially forced to convert this commercial area in an earlier version to a private recreation facility due to limitations on parking. This lack of commercial uses is antithetical to the City's neo- traditional efforts in the downtown area particularly in such close proximity to Atlantic Avenue. Based on the above, the proposed development is not consistent with Policy C -3.1 and is not of a nature that was envisioned for the core downtown area which encourages the pedestrian oriented uses at the street level. Transportation Element Policy A -1.6: New residential projects over 25 units and nonresidential projects over 10,000 square feet adjacent to existing or future Palm Tran bus stops shall provide an easement and install a city - approved bus shelter on site. If the project is not adjacent to a bus stop, or a bus shelter already exist, a contribution shall be made to the City in -lieu of providing the bus shelter on site. Studies have shown that the provision of bus shelters to protect riders from the elements leads to increased utilization and mitigates negative impacts to adjacent properties. Given the potential impacts the proposed mixed -use development will have on the surrounding road network and the location of a Palm Tran bus stop on SE 5to Avenue one block to the north of the subject property at the Chamber of Commerce, it is appropriate that the development contribute toward the cost of a bus shelter ($11,000) this is attached as a condition of approval. If the conditional use is approved, the development will comply with Transportation Element Policy A- 1.3 provided to the condition that the cost ($11,000) of a bus shelter be contributed. Transportation Element Polio D -2.2_ Bicycle parking and facilities shall be required on all new development and redevelopment. Particular emphasis is to be placed on development within the TCEA. The development proposal includes bicycle racks in both of the courtyards and one in the entrance to the courtyard along Federal Highway. It is noted that some limited storage lockers are available to the residences within the parking garage, which will allow additional secured storage opportunities for bicycles. However, additional storage opportunities should be provided to the residences and this is further discussed in the performance standards section of this report_ With the provision of these additional facilities, the development will comply with Transportation Element Policy D -2.2. Open Space and Recreation Element Policy A -3.1: sot lots and recreational areas, serving children from toddlers to teens, shall be a feature of all new housing developments as part of design to accommodate households having a range of ages. This requirement may be waived or modified for residential developments located in the downtown area, and for infill projects having fewer than 25 units. The City may require a monetary contribution in -lieu of the provision of on -site facilities where appropriate_ This policy may be waived for projects in the downtown area, because the City recognizes that households located downtown are likely to have fewer children than those located in suburban settings. Further, land in the downtown area is at a premium and it can be cost prohibitive to provide recreational features such as tennis courts, volleyball courts, etc. However, the proposed development does provide several recreational facilities for its residents, such as a swimming pool, club house, gym, and aerobicslpilatesfyoga room. Given the intensity of the proposed development (163 dwelling units), it is reasonable that sufficient recreational opportunities are provided for the development. While the project does not provide recreation Planning and Zoning Board Staff Report: 4115113 Uptown Delray - Conditional Use Request Page 6 opportunities for all ages, it has provided sufficient opportunities given the anticipated demographics of the project. Some of the recreational, cultural and open space opportunities located in proximity to the Uptown Delray development include: Veteran's Park, which includes a large playground and recreational area; the Municipal Beach, 505 Teen Center and Hobbit Skate Park, the City's Tennis Center, and Old School Square Cultural Center. As playground areas are located close at (Veteran's Park, Osceola Park, and Currie Commons) as well as other facilities that can be utilized by children, such as the rooftop pool, have been provided, the intent of this policy will be met. Based on the above, it is appropriate to modify in part this requirement to not provide all of these services on site (i.e. tot lot), Housing Element Objectiy_e_6-2: 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: Housing Element Policy 8 -2.2: The development of new adult oriented communities within the City is discouraged. New . housing developments shall be designed to accommodate households having a range of ages, especially families with children, and shall be required to provide three (3) and four (4) bedroom units and activity areas for children ranging from toddlers to teens. This requirement may be waived or modified for residential development located in the downtown area and for infill projects having fewer than 25 units. While this development will not be restricted to occupancy by adults only, it is acknowledged that dwellings in downtown Delray Beach are not typically occupied by families with children. The proposed development will primarily accommodate young and middle -age professionals. The development will provide the following unit mix: 37 efficiency units, 42 one - bedroom units, and 84 two- bedroom units. Of these 163 dwelling units, the proposed development provides 7 different floor plans. There are several examples where the City has waived the requirement to provide 3 and 4 bedroom units such as the two recently approved SOFA projects. If this requirement is waived given its downtown location, the project complies with Housing Element Policy 9-2.2_ Housing Obiective A -1 1: To assist residents of the City in maintaining and enhancing their neighborhood, the City, through public input and notification, shall take steps to ensure that modifications in and around the neighborhood do not lead to its decline, such as those described in the following policies. Housing Policy A -11.3: In evaluating proposals for new development or redevelopment, 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. Given the intensity of the residential portion of the development and the layout of the parking facility, there will be a significant detrimental impact on the residential neighborhood to the south. The design of the parking garage has only one driveway to SE 4th Avenue. This single Planning and Zoning Board Staff Report: 4115113 Uptown Defray - Conditional Use Request Page 7 access point will direct nearly all vehicles through the local streets and increase traffic flow within the adjacent low intensity residential neighborhoods_ This will have a negative impact on struggling residential neighborhoods that are identified in the Comprehensive Plan as areas in need of redevelopment, revitalization, and rehabilitation. Based upon the above, the development proposal will not be consistent with Housing Policy A -11.3. PERFORMANCE STANDARDS FOR DENSITY INCREASE: LDR Section 4.4.13(1) - Performance Standards: These standards shall apply to all applications for new development and modification of existing developments which would result in a density greater than 30 dwelling units per acre. (1) The maximum permissible density of a particular project will be established through the conditional use process, rased upon the degree to which the development complies with the performance standards of this section, the required findings of Section 2.4.6(E), and other applicable standards of the Comprehensive Plan and land Development Regulations. Notwithstanding the above, the approving body may deny an application for increased density where it is determined that the proposed project is not compatible in terms of building mass and intensity of use with surrounding development. All eligible developments to use these performance standards shall provide twenty percent (20 %) of the residential units above thirty (30) dwelling units per acre in the Commercial Core or twelve (12) units per acre in the West Atlantic Neighborhood as Workforce Housing units (fractions shall be rounded up). The workforce housing units shall he divided between low and moderate income levels and shall comply with other applicable provisions of Article 4.7. The units shall be provided either onsite, offsite or through a monetary contribution or as noted in LDR Section 4.7.2 c. The residential component of the proposed development consists of 163 dwelling units on 2.10 acres of land, which results in a density of 77.62 dwelling units per acre. The number of dwelling units above 30 dwelling units per acre is 100 units, which requires 20 workforce dwelling units_ Including the 4 workforce dwelling units for the height increase, the proposed development will be required to provide a total of 24 workforce units. The development is located in the CBD zoning district, which allows the residential density to exceed 30 units per acre subject to conditional use approval. The analysis with respect to 1-DR Section 4.4.13(1) (Compliance with Performance Standards] is provided below. (2) The applicable performance standards for development under this section are as follows: (a) The development offers variation in design to add interest to the elevations and relief from the building mass. For example, the building setbacks or planes of the facade are offset and varied. In structures having more than two (2) stories, stepping back of the upper stories (third floor and above) is encouraged to decrease the perception of bulk. Building elevations incorporate several of the following elements: diversity in window and door shapes and locations; features such as balconies, arches, porches; and design elements such as shutters, window mullions, quoins, decorative tiles, or similar distinguishing features. The proposed development is contemporary urban design with unique plane changes, detailing, and architectural features. There is little change to the window design which Planning and Zoning Board Staff Report? 4115/13 Uptown Delray - Conditional Use Request Page 8 leads to a little monotony, but it is not distracting from the overall design of the building_ Based upon the above, this performance standard has been achieved, (b) If the building includes a parking garage as an associated structure or within the principal building, the garage elevation provides unified design elements with the main building through the use of similar building materials and color, vertical and horizontal elements, and architectural style. The garage is designed in a manner that obscures parked vehicles except in places where unavoidable, such as entrances and exits. Development of a portion of the ground floor perimeter adjacent to street rights of way is devoted to window displays or floor area for active uses such as retail stores, personal and business service establishments, entertainment, offices, etc is encouraged. The garage is located along the west side of the project and is visible from SE 4th Avenue_ While the garage does include design elements that are consistent with the balance of the project, it fails to provide the neo- traditional elements such as window display area, etc. to maintain a pedestrian friendly environment for much of this streetscape. Thus, the design of the parking garage is only partially consistent with this performance standard. (c) A number of different unit types, sizes and floor plans are available within the development. Two and three bedroom units are encouraged, as are a combination of multi -level units and flats. In projects consisting of more than twelve (12) dwelling units, the proportion of efficiency or studio type units may not exceed 25% of the total units. There is no maximum percentage established for projects having twelve (12) or fewer units, however, a mix of unit types and sizes is encouraged. The development proposal provides a mix of efficiency, one, and two bedroom dwelling units with numerous floor plans. The proposed development fails to provide a three bedroom product or a multilevel unit. There are 37 efficiency dwelling units, which represents 22.7% of the total dwelling units within the development. The development also includes what the applicant refers to as a one bedroom loft unit. This unit could be considered an efficiency dwelling unit, which would cause the development proposal to become inconsistent with the maximum number of efficiencies allowed. Thus, a condition of approval is attached that modification to the one bedroom loft unit be made to eliminate the small gap in the wall and that the bedroom wall be extended to the finished ceiling. Based upon the above, the intent of this performance standard has been achieved. (d) The project design shall create an overall unified architectural character and image by the use of common elements between the building(s), parking lot, and landscaping. Examples of some features that could be incorporated to meet this standard are: freestanding light poles and exterior light fixtures that are decorative and consistent with the architectural treatment of the building(s); pedestrian amenities such as benches, shaded walkways, decorative pavement treatment, that are similar in forms, colors, materials, or details as the architecture of the building(s); focal points such as public art, water feat urelfountain, courtyard or public plazas designed to connect different uses along a continuous pedestrian walkway; or a combination of similar features that meet the intent of this standard. Planning and Zoning Board Staff Report: 4115113 Uptown Delray - Conditional Use Request Page 9 As noted previously, the contemporary urban design is a unifying architectural element that binds the development together. The project fails to provide meaningful public plazas that provide relief from the massing of the project and actually feel accessible to the general public. The courtyards will provide a nice amenity to the residents of the project. The project provides a unique architectural feature for the northwest corner of Federal Highway and SE 2nd Street that consists of a self- supported artistic canopy. This feature is repeated in several places throughout the project. The project falls short of providing significant focal points such as art, water feature, or public plaza. Based on the above, the project partially complies with this criterion_ (e) The development provides common areas andlor amenities for residents such as swimming pools, exercise rooms, storage rooms or lockers, covered parking, gardens, courtyards or similar areas andfor amenities. The proposed development includes a swimming pool, club house, gym, aerobiclpilateslyoga room, parking garage, and two interior courtyards The project also includes limited storage lockers within the parking garage. It is recommended that additional bike storage lockers be provided and this is attached as a condition of approval. It appears that an optimal location for additional lockers would be under the ramp on the ground floor of the parking garage. Based upon the above, the intent of this performance standard has been achieved provided additional storage lockers are provided. (f) The development promotes pedestrian movements by providing convenient access from the residential units to the public sidewalk system. Pedestrian areas adjacent to the building are enhanced by providing additional sidewalk area at the same level as the abutting public sidewalk. Accessways to parking areas are designed in a manner that minimizes conflicts between vehicles and pedestrians. The public street or streets immediately adjacent to the development are enhanced in a manner that is consistent with the streetscape in the downtown area (i.e., installation of landscape nodes, extension of existing paver block system, installation of approved street lighting, etc.). The development provides extensive pedestrian connections throughout the property. The plans are deficient in terms of hardscape details. However, the public sidewalk has been effectively increased to the requested 8 -foot along Federal Highway, SE 2nd Street, . and SE 4�h Avenue due to the increased building setbacks and placement of additional sidewalk width within the setbacks areas. It is noted that an 8 -foot wide sidewalk is required along SE 2nd Street and SE 4t' Avenue within the public right -of -way. However, the sidewalks along these two streets are only 5 feet wide within the public right -of -way with the balance on private property. This issue will need to be resolved as part of the site plan process and can be accommodated by the provision of a 3 -foot wide sidewalk easement. The pedestrian cross walks within the alley should be raised to improve safety and this is attached as a condition of approval. Based upon the above, the intent of this performance standard has been achieved. (g) The development provides opportunities to share parking, accessways, driveways, etc., with adjoining properties, or provides additional parking spaces that may be used by the public. The development provides 5 additional parallel parking spaces along SE 2nd Street. The development also provides 66 additional parking spaces for the AT&T property on the Planning and Zoning Board Staff Report: 4115113 Uptown Delray - Conditional Use Request Page 10 west side of SE 4th Avenue. The parking garage has a one space surplus_ Based upon the above, the intent of this performance standard has been achieved. (h) Projects fronting on Atlantic Avenue, NWISW 6' Avenue, NE 1St Street or SE 1St Street contain nonresidential uses on the ground floor. At least 75% of the surface area of the front street wall(s) at the ground floor area of each such building is devoted to display windows and to entrances to commercial uses from outside the building. The project does not have frontage on any of the prescribed streets. Thus, this performance standard is not applicable. (i) The landscape plan for the development preserves and incorporates existing native vegetation (where available), provides new landscaping that is in excess of minimum standards (in height and quantity), demonstrates innovative use of plant material, improves site design, provides useable open space or public plazas, and maximizes available areas for pedestrian interaction. If necessary to achieve this standard, the project may exceed the maximum setback area on the ground floor. A landscape plan was submitted with the conditional use application. The development proposal does not include existing landscape material. The Senior Landscape Planner has reviewed the plans and found that the project complies with the City's landscape requirements. Thus, this performance standard has been met. If approved as conditioned, the proposed development will comply with performance standards (a), (c), (e), (f), (g), and (1). The development proposal does not fully comply with performance standards (b) and (d). Performance standard (h) is not applicable to the property. The recently approved Atlantic Plaza 11 project was granted 40 dwelling units per acre. The Sofa 1 project was approved with a density of 62.23 dwelling units per acre and the Sofa 2 project was approved with a density of 64.71 dwelling units per acre. The proposed density of the Uptown Delray project is 77.62 dwelling units per acre. The current development proposal contains no special characteristics that would support such an increase of residential density above the other recently approved projects. The most recent project (Atlantic Plaza 11) was forced to reduce the residential density from the proposed 51.1 dwelling units per acre to 40 dwelling units per acre_ Based on the project's adherence to the performance standards, the proposed density cannot be supported. Further, the project is not compatible in terms of building mass and intensity of use with surrounding development and the application should be denied. REQUIRED FINDINGS RELATING TO INCREASE IN HEIGHT. Pursuant to LDR Section 4.3.4(K), the maximum height of structures in the CBD zoning district is 48'. Per LDR Section 4.4.13(F)(1)(a), height is defined as the vertical distance from grade to the highest finished roof surface of a flat roof, or the soffit above the last habitable floor of a gable, hip, or gambrel roof. For buildings adjoining one street, the grade is established as the average of the mean elevation of the crown along the lot frontage. For buildings adjoining more than one street, the grade is established as the average of the mean elevation of the crown of the adjoining streets. Pursuant to LDR Section 4.3.4(J)(4)(b)(ii)(9), an increase to a maximum height of 60' (59' 4 ") may be approved by the City Commission as a conditional use for property within the Central Core portion of the CBIa (Central Business District), except for that portion within Planning and Zoning Board Staff Report: 4115/13 Uptown Delray - Conditional Use Request Page 11 150' of any zoning district which has a maximum height limit of 35', measured from the property line of the CBD zoned property. The City Commission may approve an increase in height to a maximum height of 60' based upon a finding of compliance with each of the enumerated criteria listed below. (1) The property is located within area 49, which allows an increase in height of up to 60 feet. (ii) That the increase in height will not provide for, nor accommodate, an increase in the floor area (within the structure) beyond that which could be accommodated by development which adheres to a height limitation of 48', except if: (1) An increase in intensity is allowed when the increase from 48' to 60' is for the purpose of accommodating residential use on the top floor of the structure; however, the increase in intensity is only for the added residential use area. The increase is to provide residential on the top floor, thus the increase complies with this section. (iii)Workforce housing units, equal to at least twenty percent (20 %) of the residential units on the top floor, shall be provided within the development onsite, offsite, or through monetary contributions as referenced in Article 4.7 (fractions shall be rounded up). The workforce housing units shall be at the low or moderate income levels and shall comply with other applicable provisions of Article 4.7. The proposed development provides 18 dwelling units on the sixth floor. Thus, 4 workforce housing units need to be provided per this requirement. It is noted that the total workforce units will increase due to the provisions of the density increase requirements, which will be addressed in a later section of this report. A total of 24 workforce units would be required for the entire project_ Further, the provision of workforce housing units will be addressed per an agreement that will need to be approved by the Community Improvement Director and executed prior to certification of the site plan and this is attached as a condition of approval. (iv)That the increase in height is based on or will result in two, or more, of the following: (1) That for each foot in height above 48 feet, an additional building setback of two feet is provided from the building setback lines which would be established for a 48 -foot tall structure. The additional setback Is required from all setback lines (i.e., front, side, and rear) for the portion of the building that extends above 48 feet. In lieu of this setback requirement, buildings in the CBD zone shall adhere to the setback requirements of that district. The proposed development does not comply with the additional setback requirement and does not adhere to the setback requirements of the CBD zoning district. Thus, the proposed development is not consistent with this requirement. (2) That a minimum of 50% of the ground floor building frontage consist of nonresidential uses (excluding parking). The development provides 465 lineal feet of residential frontage including the dwelling units, leasing office, and recreational amenity. This equates to 72% of the frontage. The development provides 180 lineal feet of nonresidential frontage, which equates to 28% Planning and Zoning Board Stan Report: 4115113 Uptown Delray - Conditional Use Request Page 12 of the overall frontage. Based on this, the proposed development is not consistent with this standard. (3) That open areas, such as courtyards, plazas, and landscaped setbacks, be provided in order to add interest and provide relief from the building mass. The project contains two courtyards that are located interior to the building envelope of the buildings along Federal Highway and SE 4th Avenue. The development also includes an increased landscaped building setback for the dwelling units along SE 2 "d Street and a small seating /courtyard area at the northwest corner of Federal Highway and SE 2nd Street. These interior courtyards do not provide the relief from the building mass as viewed from the public rights -of -way_ Further, the minimal landscaped area and small seating area along SE 2 "d Street provide no meaningful relief from the building mass. Based on the above, the proposed development is not consistent with this standard, Summary: Based on the above analysis, the project does not comply with any of the criteria in order to be eligible for an increase in height. Thus, the requested height increase is not eligible for consideration and most be denied. LDR SECTION 2.4.5(E) - REQUIRED FINDINGS: Pursuant to LDR Section 2.4.5(E)(5), in addition to provisions of Chapter 3, the City Commission must make findings that establishing the conditional uses will not: A. Have a significantly detrimental effect upon the stability of the neighborhood within which it will be located; 13. Nor that it will hinder development or redevelopment of nearby properties. The following table identifies the zoning designations and uses that are adjacent to the subject property: The surrounding CBD (Central Business District) zoning designation to the north, south, east, and west is the same as the subject property. In addition, to the south is RM -zoned property that contains a vacant single family residence. The proposed mixed use project is not consistent with this single family residence and will likely hinder it from being utilized as such. As stated elsewhere in this report, the intensity and massing of the proposed mixed use project will have a detrimental impact on the single family neighborhood to the south. Based upon the above, positive findings cannot be made with respect to LDR Section 2.4.5(E)(5). Zo. nine: Use: North Central Business District (CBD) Commercial South Multiple Family Residential (RM) & Single Family (vacant) & Commercial (vacant) CBD East Central Business District (CBD) Commercial Uses West Central Business District (CBD) AT &T The surrounding CBD (Central Business District) zoning designation to the north, south, east, and west is the same as the subject property. In addition, to the south is RM -zoned property that contains a vacant single family residence. The proposed mixed use project is not consistent with this single family residence and will likely hinder it from being utilized as such. As stated elsewhere in this report, the intensity and massing of the proposed mixed use project will have a detrimental impact on the single family neighborhood to the south. Based upon the above, positive findings cannot be made with respect to LDR Section 2.4.5(E)(5). Planning and Zoning Board Staff Report: 4115113 Uptown Delray - Conditional Use Request Page 13 COMPLIANCE WITH LAND DEVELOPMENT REGULATIONS; In conjunction with the Conditional Use request a sketch plan was submitted which staff has reviewed. If the Conditional Use is approved, a full site plan submittal complying with LDR Section 2.4.3 will be required. Based upon staff's review of the sketch plan and site inspections, the following analysis is provided. Building Setbacks: The development proposal does not comply with the City's building setback requirements. If the conditional use is approved, the applicant will need to seek relief from these requirements. Staff does not support the setback waivers. The determination on compliance with the CBD setback requirements will occur during the site plan review process. As noted previously the garage does not meet setback requirements and given the exemptions from stepping back this creates compatibility concerns. Parking Requirements: LDR Section 4.4.13(G)(1)(a) requires 1 parking space per 300 square feet of total floor area for all nonresidential uses except the restaurants and offices. Parking for multi - family residential structures and mixed use development must be provided pursuant to the following: • Efficiency dwelling unit 1.0 spacelunit • One bedroom dwelling unit 1.25 spaceslunit • Two or more bedroom dwekling unit 1.75 spaceslunit • Guest parking shall be provided cumulatively as follows: - for the first 20 units 0.60 s aces /unit for units 21 -50 0.30 spaces/unit - for units 51 and above 0.20 spaceslunit The proposed development contains 4,270 square feet of retailloffice and 163 residential units comprised of 37 efficiency, 42 one - bedroom, and 84 two- bedroom units. The project also has an obligation to provide 66 parking spaces for the AT &T property on the west side of SE 41h Avenue to compensate for the elimination of the existing parking area. Based on this development mix, the required parking for the proposed development is 345 parking spaces, LDR Section 4.6.9(C)(8)(a) -- Shared Parking allows for buildings or a combination of buildings on a unified site to utilize the shared parking calculations which affords reduced parking requirements by accommodating varied peak utilization periods for different uses (see below). Planning and Zoning Board Staff Report: 4115113 Uptown Delray - Conditional Use Request Page 14 The development proposal provides a total of 346 parking spaces within the garage. Thus, the development proposal complies with the parking requirements with a one -space parking surplus. Compact Parking: Pursuant to LDR Section 4.6.9(C)(1)(g), rap to 30% of the required parking for any use may be designated for compact cars. The development proposal includes 95 compact parking spaces, which is 27.5% of the total required parking. Thus, the development proposal complies with this requirement. Handicapped Accessible Parking: Pursuant to LDR Section 4.6.9 (C)(1)(b), parking spaces designed for use by the handicapped shall be provided pursuant to the provisions of Florida Accessibility Code for Building Construction (FACBC). Accessibility for residential units is addressed by the Federal Fair Housing Act. Pursuant to the FACBC, 8 handicap accessible spaces are required for parking facilities with 346 parking spaces. The conceptual plan complies with this requirement since 8 handicap accessible parking spaces are provided. On- Street Parking; Although not counted toward meeting the parking requirements for the project, a total of 5 new public parallel parking spaces are being provided along SE 2nd Street are to be provided. Although available to the general public, these spaces should help meet the short term parking requirements of residents and guests of the project. One Bedroom Dwelling Units: Per LDR Section 4.7.%c)(i), the total number of one bedroom units in any qualifying project shall not exceed 30% of the total number of units in the project, including both family /workforce units and market rate units. The development includes 42 one bedroom units and efficiency units, which is 48.46% of the total number of dwelling units within the development. The applicant is requesting a waiver for this increase and this will be addressed as part of the site plan review process if conditional use is granted. Workforce Housing Units: Per LDR Section 4.7,9(c)(h), no efficiency or studio type units shall be allowed under the family /workforce housing program. If the project is approved, the applicant will need to enter 1.11�c1 .�dUhdn74...... l4r ,.,�9AM*i'4— ' BP.MtoAkWnlih'L_. i t�€PB .._..:,PM — - Fxljdiflgli�", R quge0f• Residential 116 :. .10%. 115' ' ' 80% 69 ` - - 90% 103.5 BO% 92 - .90% 103,5 Ofte 5% 0 10046 0 10% 0 10% 0 5% 0 Commerdal/Retah 14 -' -5% 0.7 - ' -. -70% 9.9 90°,6 12.6 100%. 14 7u% 98 Hotel 60% 0 80% 0 300% 0 80°%. 0 10o%. 11 Restaurant 50% 0 50.% 0 '. 100% 0 50% 0 100% 0 8ntertain rn entlRe crea tlo nal (theatres, howiirn0 allays, etc) :, 10% a '.`40 %. 0 IN% 0 .. 80% 0 � 100% 0 Reserved Parking 163 ..'10096 10 .100%. 163 100% 153 100% 163 - ::100% 163 Other (AT &TParking) 66 - .�1 . 0a %- 66 �- ;:100 %' 66 100% 66 1CIA 65 .. 10G% 66 TOTALS 35H 345 308 345 335 342 The development proposal provides a total of 346 parking spaces within the garage. Thus, the development proposal complies with the parking requirements with a one -space parking surplus. Compact Parking: Pursuant to LDR Section 4.6.9(C)(1)(g), rap to 30% of the required parking for any use may be designated for compact cars. The development proposal includes 95 compact parking spaces, which is 27.5% of the total required parking. Thus, the development proposal complies with this requirement. Handicapped Accessible Parking: Pursuant to LDR Section 4.6.9 (C)(1)(b), parking spaces designed for use by the handicapped shall be provided pursuant to the provisions of Florida Accessibility Code for Building Construction (FACBC). Accessibility for residential units is addressed by the Federal Fair Housing Act. Pursuant to the FACBC, 8 handicap accessible spaces are required for parking facilities with 346 parking spaces. The conceptual plan complies with this requirement since 8 handicap accessible parking spaces are provided. On- Street Parking; Although not counted toward meeting the parking requirements for the project, a total of 5 new public parallel parking spaces are being provided along SE 2nd Street are to be provided. Although available to the general public, these spaces should help meet the short term parking requirements of residents and guests of the project. One Bedroom Dwelling Units: Per LDR Section 4.7.%c)(i), the total number of one bedroom units in any qualifying project shall not exceed 30% of the total number of units in the project, including both family /workforce units and market rate units. The development includes 42 one bedroom units and efficiency units, which is 48.46% of the total number of dwelling units within the development. The applicant is requesting a waiver for this increase and this will be addressed as part of the site plan review process if conditional use is granted. Workforce Housing Units: Per LDR Section 4.7,9(c)(h), no efficiency or studio type units shall be allowed under the family /workforce housing program. If the project is approved, the applicant will need to enter Planning and Zoning Board Staff Report: 4115113 Uptown Delray - Conditional Use Request Page 15 into a familylworkforce housing program covenant with the City that ensures municipal oversight of this program. One of the stipulations of this covenant will be that no efficiencies or studio be utilized in this program and this is attached as a condition of approval_ It is noted that this covenant will need to be fully executed prior to issuance of a building permit. Minimum Residential Floor Area; Per LDR Section 4.3.4(x), the minimum floor area for efficiency units is 400 square feet. The development provides one style of efficiency dwelling unit that has 614 square feet. The minimum required one bedroom unit floor area is 600 square feet. The development has two styles of one bedroom units that both contain 708 square feet. The minimum required two bedroom floor area is 900 square feet. The development provides four styles of two bedroom units that have 1,044 square feet (two styles have the same square footage), 1,062 square feet, and 1,156 square feet respectively. Stacking Distance: Per LDR Section 4.6,9(D)(3)(c)(1), the minimum distance between a right -of -way and the first parking space or aisle way in a parking lot with 346 parking spaces is 50 feet and 27 feet is proposed. The applicant has submitted a waiver request from this requirement that will be considered as part of the site plan process if the conditional use requests are approved. Garage Setback: Per LDR Section 4.4.13fl(4)(e)(5), the minimum required front setback is 10 feet for the garage and 7' 9' is proposed. The applicant has submitted a waiver request from this requirement, which will be considered as park of the site plan process if the conditional use request is approved. This waiver request is not recommended for approval given its negative impact on compatibility with adjacent properties. Front Setbacks: Per LDR Section 4.4.13(F)(4)(b) & (c), the proposed buildings either encroach into or exceed the minimumlmaximum front setbacks from Federal Highway, SE 2 " Street, and SE 4th Avenue, The applicant has submitted waiver request from these setback requirements, which will be considered as part of the site plan process if the conditional use requests are approved. It is noted that this lack of compliance serves as justification for denial of the conditional use application to increase the building height up to 60 feet. Window Transparency: Per LDR Section 4.6. 1 8(13)(14)(iv)(2), percentage of window transparency and light transmission of the ground floor commercial areas needs to be provided on the plans. It does not appear that a minimum of 75% transparency has been achieved with this design. This issue will need to be addressed as part of the site plan process and may require a waiver. Photometric Plan; Per LDR Section 4.6.8(A)(3), the maximum illumination is 10 foot candies and a minimum of 1.0 foot candles at building entrances. The proposed photometric plan does not provide the required information at the doorway entrances into the commercial or residential areas. This will need to be addressed as part of the site plan process. Planning and Zoning Board Staff Report: 4115113 Uptown Delray - Conditional Use Request Page 16 Crime Prevention Through Environmental Design (CPTED)-. Pursuant to t-DR Section 4.4.13(F)(4)(f)(2), building and site design shall incorporate Crime Prevention Through Environmental Design (CPTED) standards to the greatest extent possible. The Delray Beach Police Department and Planning and Zoning Department have conducted a CPTED review of the project. They have identified several measures that will improve the safety within the development and aid in reducing crime. In terms of natural surveillance, the garage stairwell should be opened up for better surveillance and to eliminate an ambush point. The photometric plan needs to be revised to include the building entrances to ensure safety. The interior doors need to include redundant keyless entry systems to ensure abnormal users do not have access to residential areas of the project. The garage should include a gate system at some point interior to the building to prevent abnormal use (vehicles) from entering areas that are dedicated for residential parking. In terms Df territoriality, the courtyard along Federal Highway is a poor design since abnormal users will have direct access to the living areas of the residential uses and this should be eliminated. Infrared closed circuit television (CCTV) should be utilized to monitor the activities of all users including the garage entrances to capture images of license plates. Right -of -Way Dedication: Pursuant to Land Development Regulation (LDR) Section 5.3.1, the required alley width is 20 feet and 16 feet exists. The applicant requests the abandonment of a portion of the alley and replacement with a 20 -foot public access easement. The applicant will also dedicate 2 feet on the west side of the alley for the remainder (northern) portion of the alley adjacent to the subject property which will not be part of the abandonment area. Community Redevelopment Agency (CRA); The CRA will review the conditional use requests at its meeting of April 11, 2013_ The recommendation of the CRA will be announced at the Planning and Zoning Board meeting. Downtown Development Authority_ At its meeting of March 11, 2013, the DDA reviewed the conditional use requests and unanimously recommended approval but expressed concerns with respect to the increased density of the project. Site Plan Review and Appearance Board., If the Conditional Use requests are approved, a site plan application will be processed for the development proposal, with final action by SPRAB. Courtesy Notice: Courtesy notices have been provided to the following homeowner's associations and interested parties, which have requested notice of developments in their areas: ➢ Neighborhood Advisory Council Planning and Zoning Board Staff Report: 4115113 Uptown Delray - Conditional Use Request Page 17 Jerry Franciosa, Delray Citizen's Coalition ➢ Chamber of Commerce Public Notice: Formal public notice has been provided to property owners within a 500' radius of the subject property. The attached e-mail expresses concerns with the Uptown Delray development has been filed- Additional letters of support or concern, if any, will be presented at the Planning and Zoning Board (P &Z) meeting- The proposed conditional uses are to allow for a mixed -use structure having a height in excess of 48' (60' -0" proposed) and to allow for a density in excess of 30 units per acre within the CBD (77.62 du/ac is proposed). The proposed use is inconsistent with the objectives and policies of the Comprehensive Plan and Chapter 3 of the LDRs. Positive findings cannot can be made with respect to LDR Section 2.4.5(E)(5), regarding compatibility of the proposed development with the surrounding properties, with respect to the requested increases in Building height and density. In particular, the intensity of the proposed development will have a negative impact on the surrounding residential neighborhood to the south- The proposed development fails to meet any of the three criteria to be considered for a height increase required under LDR Section 43.4(J)(4)(b)(iv). Further, the development proposal fails to sufficiently meet or exceed the performance standards in LDR Section 4.4.13(1) to be granted an increase the residential density. A. Postpone with direction - B. Move a recommendation of approval of the conditional use requests to allow for a building height in excess of 48' (60' proposed) and a density in excess of 30 units per acre (77.62 du/ac proposed) for Uptown Delray, by adopting the findings of fact and law contained in the staff report, and finding that the request, and approval thereof, is consistent with the Comprehensive Plan and meets criteria set forth in Sections 2.4.5(E)(5), 4.3.4(J)(4)(b)(iv), 4.4.13(1), and Chapter 3 of the Land Development Regulations, subject to conditions. C- Move a recommendation of denial of the conditional use requests to allow for a building height in excess of 48' (60' proposed) and a density in excess of 30 units per acre (77.62 du/ac proposed) for Uptown Delray, by adopting the findings of fact and law contained in the staff report, and finding that the request is inconsistent with the Comprehensive flan and does not meet criteria set forth in Sections 2.4.5(E)(5), 4.3.4(J)(4)(b)(iv), 4.4.13(1), and Chapter 3 of the Land Development Regulations, By Separate Motions: ❑ Move a recommendation of denial of the conditional use request to allow for a building height in excess of 48' (60' proposed) for Uptown Delray, by adopting the findings of fact and law contained in the staff report, and finding that the request, and approval thereof, is a Planning and Zoning Board Staff Report: 4115113 Uptown Delray - Conditional Use Request Page 18 inconsistent with the Comprehensive Plan and does not meet criteria set forth in Sections 2.4.5(E)(5), 4.3.4(J)(4)(b)(iv), and Chapter 3 of the Land Development Regulations, ❑ Move a recommendation of denial of the conditional use request to allow for a density in excess of 30 units per acre (77.62 dulac proposed) for Uptown Delray, by adopting the findings of fact and law contained in the staff report, and finding that the request, and approval thereof, is inconsistent with the Comprehensive Plan and does not meet criteria set forth in Sections 2.4.5(1~)(5), 4.4.13(1), and Chapter 3 of the Land Development Regulations; If the Planning and Zoning Board votes to recommend approval of the conditional use requests, staff recommends the following conditions: 1. Approval of a site plan by SPRAB that is in general conformance to the submitted sketch plan and address the issues identified in this staff report_ 2. That a finding of traffic concurrency be provided from the Palm Beach County Traffic Engineering Division 3. That the applicant contributes toward the cost of a bus shelter ($11,000), 4. That the provision of workforce housing units be addressed per an agreement to be approved by the Community Improvement Director and executed prior to certification of the site plan. 5. That the workforce covenant include a provision that no efficiencies or studio units be utilized in this program. 6. That modifications to the one bedroom loft unit be implemented to eliminate the small gap in the wall and all walls extended to the finished ceiling. 7• That additional bicycle storage lockers be provided. 8• That the two at -grade crosswalks in the alley be raised_ Attachments: • Conceptual Plans & Location Map Report prepared by: Scott Pane, AICR FCP, Senior Planner Agent: Weiner, Lynne & Thompson, P.A. Project Name: Uptown Delray Project Location: The subject property is located between SE Stn Avenue and SE 4'h Avenue, north of SE 2nd Street (approximately 2.10 acres). ITEM Bi= IRL=THE4�RQ The item before the Board is reconsideration of the conditional uses to exceed a height of 48 feet (60 feet proposed) and increase the residential density of the project to 69.52 dwelling units per acre. Background At its meeting of April 15, 2013, the Planning and Zoning Board considered the conditional uses. After considering the development proposal, the Board postponed the applications and directed the applicant to address: ➢ Project massing /scale ➢ Mitigation techniques for height ➢ Pedestrian transitions ➢ Minimize code deviations ➢ Enhance landscaping ➢ LEED certification ➢ Bicycle strategies ➢ Incorporate SAFE design elements ➢ Dumpster access and internal building consistencies ➢ Provide and delineate exemplary design techniques ➢ Provide additional multi - commercial tenant opportunities The development proposal has been modified to reduce the number of dwelling units from 163 (77.62 du /ac) to 146 (69.52 du/ac). Further, the gross floor area of the commercial space has been increased from 4,270 square feet to 7,854 square feet. The additional commercial area was achieved by converting a dwelling unit along SE 2 I Street and the aerobicslpilates /yoga room along Federal Highway to commercial. The plaza at the northwest corner of SE 5th Avenue and SE 2"d Street has also been enlarged. The entrances to the courtyards along SE 5th Avenue and SE 4th Avenue have been widened. The floor plans have been refined to provide doors for the internal areas such as the trash rooms and some of the electrical rooms. The development proposal includes additional bicycle storage and general storage rooms for the resident's in the ground floor of the courtyard along Federal Highway. The increased courtyard provides a substantial mitigation to the massing of the buildings. The applicant has provided no narrative or details on how the project will achieve third party certification regarding sustainability and the resubmittal includes no narrative or details regarding SAFE design elements. Meeting Date: May 20, 2013 Memorandum Staff Report: P &Z Board 5/20113 Uptown Delray — Reconsideration of Conditional Uses for Height and Density Page 2 REQUIRED FINDINGS RELATING TO INCREASE IN HEIGHT: Pursuant to LDR Section 4.3.4(J)(4)(b)(i)(9), an increase to a maximum height of 60' (59' 4 ") may be approved by the City Commission as a conditional use for property within the Central Core portion of the CBD (Central Business District), except for that portion within 150' of any zoning district which has a maximum height limit of 35', measured from the property line of the CBD zoned property. The property abuts RM zoned property to the south, therefore, the increase for height cannot be requested for the south 150' of the property. The applicant has maintained this required setback. The City Commission may approve an increase in height to a maximum height of 60' based upon a finding of compliance with each of the enumerated criteria listed below. (iii)Workforce housing unfits, equal to at least twenty percent (20 %) of the residential units on the top floor, shall be provided within the development onsite, offsite, or through monetary contributions as referenced in Article 4.7 (fractions shall be rounded up). The workforce housing units shall be at the low or moderate income levels and shall comply with other applicable provisions of Article 4.7. The proposed development provides 11 dwelling units on the sixth floor. Thus, 2.2 (3) workforce housing units need to be provided per this requirement. It is noted that the total workforce units will increase due to the provisions of the density increase requirements, which will be addressed in a later section of this report. A total of 19 workforce units would be required for the entire project. Further, the provision of workforce housing units will be addressed per an agreement that will need to be approved by the Community Improvement Director and executed prior to certification of the site plan and this is attached as a condition of approval. (iv)That the increase in height is based on or will result in two, or more, of the following: (1) That for each foot in height above 48 feet, an additional building setback of two feet is provided from the building setback lines which would be established for a 48 -foot tall structure. The additional setback is required from all setback lines (i.e., front, side, and rear) for the portion of the building that extends above 48 feet. In lieu of this setback requirement, buildings in the CBD zone shall adhere to the setback requirements of that district. The proposed development does not comply with the additional setback requirement and does not adhere to some of the other required setbacks of the CBD zoning district. Thus, the proposed development is not consistent with this requirement. (2) That a minimum of 50% of the ground floor building frontage consist of nonresidential uses (excluding parking). The development provides 272 lineal feet of residential frontage including the dwelling units and leasing office. This equates to 54% of the frontage. The development provides 232 lineal feet of nonresidential frontage, which equates to 46% of the overall frontage. Based on this, the proposed development is not consistent with this standard. (3) That open areas, such as courtyards, plazas, and landscaped setbacks, be provided in order to add interest and provide relief from the building mass. Memorandum Staff Report: P &Z Board 5120113 Uptown Delray — Reconsideration of Conditional Uses for Height and Density Page 3 The two courtyards located along Federal Highway and SE 4th Avenue have been opened up by adjusting the floor plans. The plaza at the northwest corner of Federal Highway and SE 2 d Street has been increased by also adjusting the floor plans. These courtyards and plaza have now become meaningful features that provide relief from the building mass. However, due to the conversion of residential to commercial along SE 2nd Street and the reduction of the landscape area to 5 feet wide, the larger trees and palms previously provided have been eliminated. These species provided much needed mitigation to the massing of the building along SE 2nd Street. It is noted that a minimum setback of 10 feet is required for the residential portion of the development along SE 2nd Street. Since the revised proposal provides the required courtyards /plazas, the project now partially meets this criteria. Summary: The project has been revised to now partially comply with criteria #3. However, while substantial steps have been made to provide the plazas, the project fails to provide a meaningful building setback along SE 2nd Street which would then allow for substantial vertical landscaping to mitigate the massing of the building. As two of the three required criteria have not been adequately met, the project is not eligible to be considered for a height increase. PERFORMANCE STANDARDS FOR DENSITY INCREASE: LDR Section 4.4.13 I - Performance Standards: These standards shall apply to all applications for new development and modification of existing developments which would result in a density greater than 30 dwelling units per acre. (1) The maximum permissible density of a particular project will be established through the conditional use process, based upon the degree to which the development complies with the performance standards of this section, the required findings of Section 2.4.5(E), and other applicable standards of the Comprehensive Plan and Land Development Regulations. Notwithstanding the above, the approving body may deny an application for increased density where is determined that the proposed proiect is not compatible in terms of building mass and intensity of use with surrounding development. All eligible developments to use these performance standards shall provide twenty percent (20 %) of the residential units above thirty (30) dwelling units per acre in the Commercial Core or twelve (12) units per acre in the West Atlantic Neighborhood as Workforce Housing units (fractions shall be rounded up). The workforce housing units shall be divided between low and moderate income levels and shall comply with other applicable provisions of Article 4.7. The units shall be provided either onsite, offsite or through a monetary contribution or as noted in LDR Section 4.7.2 c. The residential component of the proposed development consists of 146 dwelling units on 2.10 acres of land, which results in a density of 69.52 dwelling units per acre. The number of dwelling units above 30 dwelling units per acre is 83 units, which requires 16.6 workforce dwelling units. Including the 2.2 workforce dwelling units for the height increase, the proposed development will be required to provide a total of 19 workforce units. The development is located in the CBD zoning district, which allows the residential density to exceed 30 units per acre subject to conditional use approval. The analysis with respect to LDR Section 4.4.13(1) [Compliance with Performance Standards] is provided below. Memorandum Staff Report: P &Z Board 5120113 Uptown Delray — Reconsideration of Conditional Uses for Height and Density Page 4 (2) The applicable performance standards for development under this section are as follows: (a) The development offers variation in design to add interest to the elevations and relief from the building mass. For example, the building setbacks or planes of the facade are offset and varied. In structures having more than two (2) stories, stepping back of the upper stories (third floor and above) is encouraged to decrease the perception of bulk. Building elevations incorporate several of the following elements: diversity in window and door shapes and locations; features such as balconies, arches, porches; and design elements such as shutters, window mullions, quoins, decorative tiles, or similar distinguishing features. The proposed development is contemporary urban design with unique plane changes, detailing, and architectural features. However, the fifth and sixth floor has too much of the building within 30 feet of the front setback along SE 4th Avenue. Per LDR Section 4.4.13(F)(4)(d)(1), at least 90% of the building must be setback a minimum of 30 feet and only 75.76% of the building is setback 30 feet or more. Further, the upper levels of the building exceed the maximum floor area as a percentage of the allowable ground floor area. Per LDR Section 4.4.13(F)(4)(b)(2), the third and fourth floors cannot exceed 70% (52,573 square feet) of the allowable ground floor (75,105 square feet). The proposed third floor consists of 58,971 square feet and the fourth floor consists of 56,148 square feet. The fifth and sixth floors cannot exceed 50% of the allowable ground floor area (75,105 square feet), which equates to a maximum allowed of 37,552 square feet. These floors also exceed the maximum with 41,966 square feet on the fifth floor and 38,546 square feet on the sixth floor. These percentages are important since they provide further insurance that buildings will contain the "wedding- cake" effect envisioned by the Downtown Design Guidelines to mitigate the massing of the building. This impression of massing is further exacerbated by the reduced setback of the proposed garage which has 192 feet of frontage at 51 feet in height, 7 feet from the property line. Further, relief via waivers to these sections would have to be granted during the site development approval stage. Since the development does not conform to the setback and maximum floor area requirements, this performance standard has not been achieved. (b) If the building includes a parking garage as an associated structure or within the principal building, the garage elevation provides unified design elements with the main building through the use of similar building materials and color, vertical and horizontal elements, and architectural style. The garage is designed in a manner that obscures parked vehicles except in places where unavoidable, such as entrances and exits. Development of a portion of the ground floor perimeter adjacent to street rights of way is devoted to window displays or floor area for active uses such as retail stores, personal and business service establishments, entertainment, offices, etc is encouraged. The garage is located along the west side of the project and is visible from SE 4 t Avenue. While the garage does include design elements that are consistent with the balance of the project, it continues to fail to provide the neo- traditional elements such as window display area, etc. to maintain a pedestrian friendly environment for much of this streetscape. Finally, the design of the garage fails to adequately screen the vehicles. Thus, the design of the parking garage is only partially consistent with this performance standard. (c) A number of different unit types, sizes and floor plans are available within the development. Two and three bedroom units are encouraged, as are a combination of multi -level units and flats. In projects consisting of more than twelve (12) dwelling Memorandum Staff Report: P &Z Board 5120/13 Uptown Delray — Reconsideration of Conditional Uses for Height and Density Page 5 units, the proportion of efficiency or studio type units may not exceed 25% of the total units. There is no maximum percentage established for projects having twelve (12) or fewer units, however, a mix of unit types and sizes is encouraged. The development proposal provides a mix of efficiency, one, and two bedroom dwelling units with numerous floor plans. The proposed development continues to fail to provide a three bedroom product or a multi -level unit. There are 28 efficiency dwelling units, which represents 19.18% of the total dwelling units within the development. Modifications need to be made to the one bedroom loft unit bedroom walls (extended walls to the ceiling), otherwise, they would be considered efficiency dwelling units by definition. Thus, the condition of approval is still attached that bedroom wall be extended to the finished ceiling. Based upon the above, the intent of this performance standard has been achieved. (d) The project design shall create an overall unified architectural character and image by the use of common elements between the building(s), parking lot, and landscaping. Examples of some features that could be incorporated to meet this standard are: freestanding light poles and exterior light fixtures that are decorative and consistent with the architectural treatment of the building(s); pedestrian amenities such as benches, shaded walkways, decorative pavement treatment, that are similar in forms, colors, materials, or details as the architecture of the building(s); focal points such as public art, water featureffountain, courtyard or public plazas designed to connect different uses along a continuous pedestrian walkway; or a combination of similar features that meet the intent of this standard. As noted previously, the contemporary urban design is a unifying architectural element that binds the development together. The project has been redesigned to provide substantial courtyards along SE 4th Avenue and Federal Highway together with a public plaza at the northwest corner of Federal Highway and SE 2"d Street. The project provides a unique architectural feature for the northwest corner of Federal Highway and SE 2"" Street that consists of a self - supported artistic canopy. This feature is repeated in several places throughout the project. Based on the above, the project now complies with this performance standard. (e) The development provides common areas and/or amenities for residents such as swimming pools, exercise rooms, storage rooms or lockers, covered parking, gardens, courtyards or similar areas and/or amenities. The proposed development includes a swimming pool, club house, gym, yen garden, parking garage, and two courtyards. The project also includes limited storage lockers within the parking garage and now includes additional secured bicycle racks and storage lockers in the courtyard along Federal Highway. Based upon the above, the intent of this performance standard has been achieved. (f) The development promotes pedestrian movements by providing convenient access from the residential units to the public sidewalk system. Pedestrian areas adjacent to the building are enhanced by providing additional sidewalk area at the same level as the abutting public sidewalk. Accessways to parking areas are designed in a manner that minimizes conflicts between vehicles and pedestrians. The public street or streets immediately adjacent to the development are enhanced in a manner that is consistent with the streetscape in the downtown area (i.e., installation of landscape nodes, extension of existing paver block system, installation of approved street lighting, etc.). Memorandum Staff Report: P &Z Board 5120113 Uptown Delray — Reconsideration of Conditional Uses for Height and Density Page 6 The development provides extensive pedestrian connections throughout the property. The plans are deficient in terms of hardscape details. However, the public sidewalk has been effectively increased to the requested 8 -foot along Federal Highway, SE 2 "d Street, and SE 4th Avenue due to the increased building setbacks and placement of additional sidewalk width within the setbacks areas. It is noted that an 8 -foot wide sidewalk is required along SE 2nd Street and SE 4th Avenue within the public right -of -way. However, the sidewalks along these two streets are only 5 feet wide within the public right -of -way with the balance on private property. This issue will need to be resolved as part of the site plan process and can be accommodated by the provision of a 3 -foot wide sidewalk easements. The proposed pedestrian cross walks within the alley should be raised to improve safety and additional hardscape details need to be provided with site development plans and these are attached as conditions of approval. Based upon the above, the intent of this performance standard has been achieved. (g) The development provides opportunities to share parking, accessways, driveways, etc., with adjoining properties, or provides additional parking spaces that may be used by the public. The development provides 5 additional parallel parking spaces along SE 2nd Street. The development also provides 66 additional parking spaces for the AT &T property on the west side of SE 4th Avenue. This parking is to replace the elimination of required AT &T parking as a result of this project. The parking garage has a 14 -space surplus. Based upon the above, the intent of this performance standard has been achieved. (h) Projects fronting on Atlantic Avenue, NWISW 5th Avenue, NE 1" Street or SE 1St Street contain nonresidential uses on the ground floor. At least 75% of the surface area of the front street wall(s) at the ground floor area of each such building is devoted to display windows and to entrances to commercial uses from outside the building. The project does not have frontage on any of the prescribed streets. Thus, this performance standard is not applicable. (i) The landscape plan for the development preserves and incorporates existing native vegetation (where available), provides new landscaping that is in excess of minimum standards (in height and quantity), demonstrates innovative use of plant material, improves site design, provides useable open space or public plazas, and maximizes available areas for pedestrian interaction. If necessary to achieve this standard, the project may exceed the maximum setback area on the ground floor. A landscape plan was submitted with the conditional use application. The Senior Landscape Planner has reviewed the plans and found that the project complies with the City's minimum landscape requirements. Landscape in excess of minimum standards has not been provided therefore this performance standard has not been met. If approved as conditioned, the proposed development will comply with performance standards (c), (d), (e), (0, and (g). The development proposal partially complies with performance standards (b) and performance standard (h) is not applicable to the property. The project fails to comply with performance standard (a), which requires mitigation and relief from the building mass and (i) which requires enhanced landscaping. The proposed density of the Uptown Delray project is 69.52 dwelling units per acre. The current development proposal contains no special characteristics that would Memorandum Staff Report: P &Z Board 5/20113 Uptown Delray — Reconsideration of Conditional Uses for Height and Density Page 7 support such an increase of residential density above the other recently approved projects. The most recent project (Atlantic Plaza 11) was forced to reduce the residential density from the proposed 51.1 dwelling units per acre to 40 dwelling units per acre. Based on the project's adherence to the performance standards, the proposed density cannot be supported. Even with 100% adherence to the performance standards a project may be denied if it is determined that the proposed project is not compatible in terms of building mass and intensity of use with surrounding development. The project is not compatible in terms of building mass particularly along SE 4th Avenue nor intensity of use with surrounding development and the application should be denied. The project fails to meet two of three of the required criteria to be considered for a height increase. The project does not comply with the CBD setback requirements, does not provide the minimum nonresidential frontage, nor does it provide the enhanced landscaping to mitigate the massing of the project. Thus, the conditional use to increase the building height must be denied. The concern regarding the perceived massing of the project by providing 6 stories rather than the 5 stories envisioned by the code remains. This massing will be particularly oppressive along SE 4th Avenue, where the upper floors are located closer to the right -of -way and the proposed reduced garage setback. It is noted that the applicant will need to request several waivers as part of a subsequent site plan process in order to comply with the building set back and floor area percentage requirements of the Downtown Design Guidelines. With respect to the requested density, the applicant has reduced the total number of dwelling units from 163 (77.62 du /ac) to 146 (69.52 du /ac). In order to achieve the requested density, a superior development proposal should be provided that meets all of the performance standards in a remarkable way. The proposed development falls short of fully complying with these performance standards in terms of the parking garage design, building massing and enhanced landscaping. The proposed garage design is antithetical to the City's vision of pedestrian oriented neo- traditional design. The massing of this garage 7 feet from the public right -of -way will be oppressive to the streetscape. Further, the massing of the 6 -story residential portion of the development along SE 4th Avenue will also be oppressive to the streetscape. The relief from the Downtown Design Guidelines that will need to be provided for the project in terms of step backs and floor percentages is indicative of inappropriate massing and lack of compatibility of the development that will cause a negative impact on the streetscape. The proposed use is inconsistent with the objectives and policies of the Comprehensive Plan and Chapter 3 of the LDRs. Positive findings cannot can be made with respect to LDR Section 2.4.5(E)(5), regarding compatibility of the proposed development with the surrounding properties, with respect to the requested increases in building height and density. In particular, the intensity of the proposed development will have a negative impact on the surrounding residential neighborhood to the south. The proposed development still does not meet two of the three criteria and only partially meets the third to be considered for a height increase required under LDR Section 4.3.4(J)(4)(b)(iv). Further, the development proposal fails to sufficiently meet or exceed the performance standards in LDR Section 4.4.13(l) to be granted an increase the residential density. ;L�:li�1E ,TIC A. Postpone with direction Memorandum Staff Report: P &Z Board 5120113 Uptown Delray — Reconsideration of Conditional Uses for Height and Density Page 8 B. Move a recommendation of approval of the conditional use requests to allow for a building height in excess of 48' (60' proposed) and a density in excess of 30 units per acre (69.52 du/ac proposed) for Uptown Delray, by adopting the findings of fact and law contained in the staff report, and finding that the request, and approval thereof, is consistent with the Comprehensive Plan and meets criteria set forth in Sections 2.4.5(E)(5), 4.3.4(J)(4)(b)(iv), 4.4.13(1), and Chapter 3 of the Land Development Regulations, subject to conditions. C. Move a recommendation of denial of the conditional use requests to allow for a building height in excess of 48' (60' proposed) and a density in excess of 30 units per acre (69.52 dulac proposed) for Uptown Delray, by adopting the findings of fact and law contained in the staff report, and finding that the request is inconsistent with the Comprehensive Plan and does not meet criteria set forth in Sections 2.4.5(E)(5), 4.3.4(J)(4)(b)(iv), 4.4.13(1), and Chapter 3 of the Land Development Regulations. By Separate Motions: ❑ Move a recommendation of denial of the conditional use request to allow for a building height in excess of 48' (60' proposed) for Uptown Delray, by adopting the findings of fact and law contained in the staff report, and finding that the request, and approval thereof, is inconsistent with the Comprehensive Plan and does not meet criteria set forth in Sections 2.4.5(E)(5), 4.3.4(J)(4)(b)(iv), and Chapter 3 of the Land Development Regulations; ❑ Move a recommendation of denial of the conditional use request to allow for a density in excess of 30 units per acre (69.52 du/ac proposed) for Uptown Delray, by adopting the findings of fact and law contained in the staff report, and finding that the request, and approval thereof, is inconsistent with the Comprehensive Plan and does not meet criteria set forth in Sections 2.4.5(E)(5), 4.4.13(1), and Chapter 3 of the Land Development Regulations; If the Planning and Zoning Board votes to recommend approval of the conditional use requests, staff recommends the following conditions: 1. Approval of a site plan by SPRAB that is in general conformance to the submitted sketch plan and addressing of the issues identified in this staff report. 2. That a finding of traffic concurrency be provided from the Palm Beach County Traffic Engineering Division 3. That the applicant contributes toward the cost of a bus shelter ($11,000). 4. That the provision of workforce housing units be addressed per an agreement to be approved by the Community Improvement Director and executed prior to certification of the site plan. 5. That the workforce covenant include a provision that no efficiencies or studio units be utilized for that program. 6. That the bedroom walls of the one bedroom loft units be extended to the finished ceiling to qualify units for that designation. Memorandum Staff Report: P &Z Board 5120113 Uptown Delray — Reconsideration of Conditional Uses for Height and Density Page 9 7. That the two at -grade crosswalks in the alley be raised and additional hardscape details should be provided with the site plan submitted. Attachments. • Conceptual Plans & Location Map • P &Z Board Staff Report - 4115113 Report prepared by.- Scott Pape, AICP, FCP, Senior Planner 5111LvlNo HEWT - 71HISMEP GRAVE TO IN" WILDING MGNTA� - 52. 4TH STREET (AW•01 pmopoe= aRoss F1.00R 4j:M;A-5ss44 &F- ALLCAUA15LE F1.0OR RtrtA[NlN,a LENGTH AT 15l mlm- � Ac< TOTAL [BUILD" FN�A� Cv a- 10') - 33 ® -4a (W&I TOTAL ,L I r7ZTb:,,. MMM i RCHITEI-JRE bA ACV IN Poo is 5._. -01H AVENUE ge -- - - - - - - - - - --- .... - - — I- -- ( L ------- -__- T-=-- - - - - -- s- --- — --- — — — — — — — 513, NTH Al/raMJ=- odtDINa HE laWT - PINIONED MRADF- TO 314 rPROPOSED STTE PLAN AT 9' MIN I jp'MA� ARTGACK NAM I-VWLI A. B, - Hlk. ZMTMCK . TOTAL Ewugim TOTAL EM IM MG FK"A(.E (c15" MIN.) W-D 212W - 4M M 12�A Ll B-LI P2B -L ZAJ I I fi 7-M-7— t7 P'! E = 8 UNITS - 614 s.f. ca. k, 1A = 3 =S - 708 s.f. ea. 1B -L= I UNITS -70a s-L ea. L 2A = 5 UNITS - 1,044 s.f. an- 2C = 2 UNITS - 1,062 s.f. ea. 213 -L = 3 uNrrs - 1,644 ss. m 12 'TaTAL UNITS UY scN L Imm, Z W 2 ML 0 A LLI �lp Lu Z jf z C3 Nib =g .Ao Iji Cj i L,�, (a aIIILORUa NEIGIlr • MN*WeD [3RAVe TO 251 : aWLOING FWNTAGE - S.E. 4714 6TIZET WY-119 10A -90 % AT s' MN. i r0' MAx. srmAcK Ra1ANING LENGTH A7 IV MR SETBACK TOTAL ENII PM FROIN— e5 • WO-40- TOTAL aWLC3 MG FRONTAGE ( ®15' MINJ- -9T -9" (119 %) —_ - - - - - �- - -- - - - - - - - - - - - - - - - - - - -- S -�. 47N AIYENU6 - - - - - - - - - �r a a � rLz A mm �B�o0 G1 m PRCIPMED W2012s FLOOR AREA= 60 ,9d1 SF- ALLOWA16L5 FLOOR CRFA =R5,'F.t 5P. $.E. 5TA AVF.NUig BUILGIMG wsk+OT - 71HIEWED GRAVE TO g7': eVILVIFaG 1-111-M - 9TH AVE. WT-V) AT W MIN. / 10' MA% SETBACK Fd NIWS LENGTH AT 1W MiN. GUi AGK PROPOShD SECOND PLOOR PLAN TOTAL 0111LOING G�nNTAQE fe 6 60' -d' l62B%p TPTAL BUILDING FRONTAGE (. MINJ • 0.3. (ll� i, 20' -0" ii'm•a nRCHIT -RE 7., Frp, ssl.aip,y�sa auwrnnpcui.TATOpe,mu z W 2 CL O J lu W Gw Z I J z O Qm =Q 7 ww �a A- 8.2013 A -T9 -2019 r e 1 �sr v a PROFOgEb GROBO FLOOR AREAmrPOA -II 5F. ALLOIVA6LE FLOOR AREA= 73,369 S.F. 9t.3T{ -E AVENUE well ING :.'EIGHT - FIHISNEP GRAPE TO 37'. BlI1LDING FRONTAGE • STN AV. �mw•sa x AT W ITIPL / 1p' MAX, 96TSA X F]PROPOSED REMANNG LZl*a AT ES' n4 L SEMAM __ —__ TOTAL WILDIK6 FRONTAGE 1:5 -0p1 . 6@'.4" MS %) TOTAL ®I1 {LnlrlG FRC {t/�E .I'� THIRD FLOOR PLAN . • � ■ c.RGHfTEGTU RE T rtN A"Wt NEPA! BOV. U .4. PANE exo'+euxcxhm�n[ cW z W d I..A W Zq LL w �V ¢m IL ®13 �. e_ -b r ianpiN NrIGNT - WIGHM 6RADE TO 29' - 48': MMPII33 PR RTAGE - SE. 4TN STREET {423' -l" / 1e I5' MN. SEMA X (GARAGR RXC21PTJ R8'IAMNG LENGIN AT 5' -I0' MN. 6, TUPACK fPT.AL EWLP61G FFXT AGE (0 9 -WP n{- g�10.oIt13 FIecNTdGL^(mLF'MN.J= f13'•ID "[16.4X! /JI . ^ - -i _ �_ S.E. ITR AVENUE e 1 �sr v a PROFOgEb GROBO FLOOR AREAmrPOA -II 5F. ALLOIVA6LE FLOOR AREA= 73,369 S.F. 9t.3T{ -E AVENUE well ING :.'EIGHT - FIHISNEP GRAPE TO 37'. BlI1LDING FRONTAGE • STN AV. �mw•sa x AT W ITIPL / 1p' MAX, 96TSA X F]PROPOSED REMANNG LZl*a AT ES' n4 L SEMAM __ —__ TOTAL WILDIK6 FRONTAGE 1:5 -0p1 . 6@'.4" MS %) TOTAL ®I1 {LnlrlG FRC {t/�E .I'� THIRD FLOOR PLAN . • � ■ c.RGHfTEGTU RE T rtN A"Wt NEPA! BOV. U .4. PANE exo'+euxcxhm�n[ cW z W d I..A W Zq LL w �V ¢m IL ®13 �. e_ -b r .. a WID TZ �aa E z � N i�, yy C an�1J ° ;t h F N n O.M. 6TH 14VETASF lBUILPINO 4E1G4T - FIN15HED GRAPE TO 39' to 15', -i i.1WG ff.GN— - 5E. 4T41 5T-ET /4T3' -T -1 — Tm% IW MX SETBACK (GARAGE ExcEr'WTJ!- r -®"J AT LE ST IM 54ALL BE 6E AGK 10'4 REMAUIVJF _I.TN STALL COMPLY .1714 I'll °„ETBACK RUKL NlrY LENOT4 Al V -10' MIN, SETBACK JrornLa /J —AL a 11.o WC, Fr mrAGE fn 5 -1 09 , 36' -4" M4%A ILO NGFmNPAGE lm19-1INJ jlym ya'y3bxJ _ I TOTAL Bi1ILDWG FFa NtA" fn15' MNJ = IBL'4I" (TTre%J .. a WID TZ �aa E z � N i�, yy C an�1J ° ;t h F N n O.M. 6TH 14VETASF BUILDING NE.IGNT - 37 TO I'I PM1R.PING FRONTAGE - DTH AIIF O94' -4'7 — AT LE ST IM 54ALL BE 6E AGK 10'4 REMAUIVJF _I.TN STALL COMPLY .1714 I'll °„ETBACK p 0 _ TOTAL BUILPR s FRONTAGE fa 5 -I0'1 • 54' -IO" fYir�sl __,,,__� TOTAL Bi1ILDWG FFa NtA" fn15' MNJ = IBL'4I" (TTre%J PROPOSED FOURTH FLOOR PLAN A$M rtx o-Z oeUwY eCn, FL m85 e1lenp 1.iJ�]RL ml�tic4a�b���ul�cau z uj 2 Q W W 0� Z ' z Y I A -013° 4 a -.4M 4.19.3 ®O IgAVLbLNG IEIGHT - 4H' To 69' 1 BUILDWG FRCK7Ar,E • SE„ OW StREEt f4t3' -3'1 lg% m4WLuj dT E' Ml11 Im' f1AL G 43ACK 40. MI`4JMLM AT 30' NK EE7INACK T 7AL MNILpr FROq -.A = fm 15 ") a 315'-19" Ce9%) Toi BUILD K^. FRCWN .E l• lo, MIN- 1�a7ti�lo• C916X1 [GARAr� STWUlLWE EXEMPTS s.s. - rti a�rNUE Eb.E. 6TH AYE,4US WILaING I IGN7 4g' iC gym' . WLOIN3 F4C�1fAGB -EIRE 1T4! eYREET f239 -7 "1 10R MAXIMM AT IF MIN. f 6a' MAX. SETBACK 90% MIMMUM AT 3w' MII'L s IAACK fOfgL B'JfE.o PIC FltrMNTAam fn MIR 3ETEIACKU V C "" f0AIL1 TOTAL p"AfLp WG F}Z[At1FGE le 30' MW.1 • i39',E "l10mpXJ PROPOSED FTFTH FLOOR PLAN 2V -0' • ■o ARCHITECTURE M BL -VE IE 9£IAIIY H, FL ]ll El F* W�¢HIR'c�1, 3722 Z W 2 IL Q J W Zq �o 9.9 -2911 A- --I. INI RUIL DIWS HEIGHT - 46' Ta 60' T WILDINS PJq ZTTAGE - 6c", Aril 6TI €ET (AMA -e") II MAXIMUM AT 5' MR / 10' MAX, 9ETII � I-11NIM M AT -' MIN. $ETB4CK TOTAL 51JUDW, FRI WAGE fa 19'7 = 35' -IO' (56X1 - - - - - -- TOTAL EVI-pNG I,FC gTAGE (a 3W MiNd - "T -10' (915 %J (GAFAGL; !IMXiUFE 9XUM+T) SE. ?N 4VENU� �d -- �---- -°__ ----- - - - - - - - - - - - - - - - _ 0 0 3� �Wi I � na 2 2 3 m44 IjI b WEK I i I Ir — vLV RIB 2A BED 2B-L ZA i I 2A=3 LFNITS -1,044 sl ea. i 2B UNITS - 1,044 s. F. ea. 2C ="i TTNPI'S - 1,062 s.f. ea. 2C ONE EED - 1 UNITS - 91S s.f, ea, — 5i.; ; 11 TOTAL UNITS i0J PD GRP� PLddR 6REA= 38,646 4.F. � pLOOR AREA= 441533 6P. 5.�. 5TH ELVFNIJE �IlIL6WG �EfGNT • 4B' TO 6 ®' I e111LIAI FRONTAGE - 6Z 471K 5f'&E f 0394") 1016 MAXIMUM AT 5' MF4. / 10' MA%. SEMI, C _ __ -- TOTAL SUILDI G FFANT?GE (� IPL fiET84UC1 . O'• ® °1 COM- TOTAL Pll1La WG iRONTAGE f• 3 @' MIN,I = E3d' -9" 11eaosl PROPOSED SIXTH FLOOR PLAN ice. -0. •E ■ ARCHITECTURE 15 5 1N As�N,°,T 11-T IGN. 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S:\Ptanning & Zonlnq\DBMS\Fila—Gab\Z—LM 1001-1500\LM1367—Uptown Delay N UPTOWN DELRAY SuBjEcr PROPERTY PLANNING AND ZONING DEPARTMENT LOCATION MAP -- DIGMAL &LZE MAP SYSTEM -- MAP REF. S:\Ptanning & Zonlnq\DBMS\Fila—Gab\Z—LM 1001-1500\LM1367—Uptown Delay Pape, Scott From: Truxell, Rebecca Sent: Wednesday, April 10, 2013 12:05 PM To: Pape, Scott Subject: FW: Agenda Item for Next Week Please see below emails re: Uptown. Rebecca Truxeg Administrative Assistant /secretary to SPPA6 Plahning & Znnihy bepartmant City of Delray Beach 100 NW 1st Avenue Delray Beach, FL 33444 Phone: 561.243.7040 Fax; 861.243.7221 truxell@mYdelraybeach, com From: FRANCIOSA4DELRAY @aol.com fmai Ito: FRANCIOSA4DELRAYC)aol.com] Sent: Wednesday, April 10, 2013 11 :55 AM To: jve0buitdinggreengenerations ,com; Truxell, Rebecca; sa45 @aol.com; esservicesi @gmail.com; dreraig(dspodakdental.com; shutts4C?atL,net; hansen.janc(cbg mail. com,; dynchl2plastridge.mm Subject: Re: Agenda Item for Next Week Joe: Thank you for taking the time to address the City's height and density issue. I will keep your thoughts on the issue in mind when I am presented with this agenda item. Hopefully if you have the time you can come to the P & Z meeting and address your concerns personally to the board. Given your accreditations I am sure you can make a compelling case for or against the issue. Thank you, Gerry Franciosa In a message dated 4/1012013 10:58:59 A. M. Eastern Daylight Time, loe@buildinggreengeneraiions .com writes: Dear Planning and Zoning, At your next meeting you will be hearing the Upton Delray item (see below) regarding increased density and increased height. These requests appear to be remarkably similar to the requests for Atlantic Plaza 1 Crossing. In general, as an architect and an appointed Palm Beach County Zoning Conunissioner, I am becoming increasingly concerned about why so many projects in Delray are coming before the City for approvals above aad beyond the zoning code requirements. If the City is at a point where projects are regularly being granted these approvals, then it seems that the "exception" has become the rule_ Perhaps the Zoning Code is no longer appropriate and needs to be adjusted accordingly. I would submit at this time that projects should continue to work within the confines of our zoning code until such time as changes are made to the zoning code. That is a single family neighborhood directly across from this lot. That means it would be going from six level structured parking garage to one story, small single - family residential homes with essentially zero transition. As 1 did with Atlantic Plaza as well, l would also object to the City abandoning alleyways and right of ways. I believe the City giving up such right of ways sets a dangerous precedent. However, if you are considering approval, we at Delray Beach Green would again encourage this Board to at least include green certification as a condition of approval In the case of Atlantic Plaza / Crossing your Board added green certification as a condition of approval, We would like to encourage this Board to continue to incentivize green building in this manner with this project. As you know, many of the Developers have not had an issue with committing to such a certification (e.g. SofA and Atlantic Plaza crossing). Sometimes all it takes is just asking them if they will commit to it. And as we have noted before, this type of incentive to encourage green buildings in a community is very common practice. With the existing already green certified buildings, the ones currently planned, and future potential projects like this, Delray has the opportunity to have the highest density of certified green buildings in such a small area in the State of Florida. This could be a great advantage to the City from a PR and tourism standpoint and this would continue to bring the City in line with many of its long -term goals as outlined in reports and workshops such as the 2009 Delray Beach Green Task Force Report and the recent Vision 2020 workshop, A— Conditional use regt,ests allow an irEcfease in density in excess -of 30 residential units per acre ( 7-62 u:eit—s per acre proposed) and an increase in the building height in excess of dS feet (M feet proposed), for Uptown Betray.; a proposed mixed -use development that kicludes the demcrlilion of the e lsbng commercial building and rernowd of the existing parking lest and construction of 103 residential apartment units arid. 4:210 square feet of retallofFice, space a 6- story buff trig and 6 -level structured parking garage_ The subject -site is located on the north side of SE 2 "' Street between Sin 0� Avenue and SE 5c-1 Avenue_ Qu a�r- i�di�tal l��aritr� i_ Al rrdore-nent Gf a portion the sixteen fit wide North- south alleyway. lying within Flock 102, T rn of betray and extending 244.03 feet norms of F 2nd Stmt_ Quasi-judicial Hearing As always, thank you very much for your service and your time. Best regards, Joe Snider, AIA, LEER AP 3 MEMORANDUM TO: Mayor and City Commissioners FROM: Estelio Breto, Senior Planner Paul Dorling, AICP, Director of Planning and Zoning THROUGH: Louie Chapman, Jr., City Manager DATE: May 22, 2013 SUBJECT: AGENDA ITEM 9.11. - REGULAR COMMISSION MEETING OF JUNE 4, 2013 CONDITIONAL USE REOUEST/ CRISTO PARA TODAS LAS NACIONES ITEM BEFORE COMMISSION Pursuant to LDR Section 4.4.9(D)(17),the conditional use request is in conjunction with the Christ For All Nations Church (Cristo para Todas las Naciones), to allow the conversion of 3,499 sq. ft. into a church use. The tenant space is located within the Congress Square Shopping Plaza at the southwest corner of West Atlantic Avenue and Congress Avenue (2280 West Atlantic Avenue, Suite # 2206). BACKGROUND The Congress Square Shopping Plaza includes all of Tract C and a portion of Tract D, Congress Square, according to the Plat Recorded in Plat Book 46 Pages 198 -199 of the Public Records of Palm Beach County. The property contains 8.9 acres. At its meeting of July 9, 1979, the City Commission approved SAD (Special Activities District) Ordinance 45 -79 for the 94,400 Congress Square shopping center on 9.9 acres including free standing 6,000 sq. ft. restaurant (Po Folk), and 8,000 sq. ft. bank building. Phase I of the shopping center was platted in 1982, and separated the one acre outparcel for the bank. Phase II was platted in 1984, and consisted of the balance of the shopping center containing 8.9 acres. The shopping center retained its SAD zoning until it was rezoned to PC (Planned Commercial) with the Citywide Rezoning associated with the adoption of the Land Development Regulations in 1990. In 1994, the City Commission approved a re -plat of Congress Square, which created an additional out - parcel to accommodate the conversion of the Po Folk restaurant to Bennett Auto Supply. At its June 30, 1999 meeting, the Site Plan Review and Appearance Board (SPRAB) approveda Class IV site plan modification associated with the demolition of the 6,000 sq. ft. Bennett Auto Supply store and construction of a new 13,095 sq. ft. Walgreens drugstore. The proposed Christ for All Nations Church will occupy the first floor of a 2 -story commercial building located in the southwest corner of the Congress Square Plaza. REVIEW BY OTHERS At its meeting of May 20, 2013, the Planning and Zoning Board held a public hearing in conjunction with the conditional use request. Presentations were made by staff and the applicant. The Board had discussions regarding the appropriateness of the conditional use request. After their deliberations, the Board moved a recommendation of approval for the conditional use request on a unanimous vote of 7 -0, by adopting the findings of fact and law contained in the staff report. RECOMMENDATION Move approval ofthe conditional use request to allow the conversion of 3,499 sq. ft. into a church use for Christ For All Nations Church (Cristo para Todas las Naciones), 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 criteria set forth in Sections 2.4.5(E)(5) and Chapter 3 of the Land Development Regulations, subject to the following conditions of approval: Pursuant to LDR Section 4.4.9(D)(17), churches located within the PC (Planned Commercial) zoning districts do not permit child care or day care as an accessory use. If these uses are anticipated they must be approved separately as an additional conditional use; 2. An additional approval is required for any new signage; 3. That at a minimum all existing parking lot perimeter `shoebox' style fixtures mounted on 25 foot poles located to the west of the most western access to the shopping center from West Atlantic Avenue must be replaced with metal halide or L.E.D. fixtures in order to eliminate glare and provide the truest visual value of color (to aid the camera monitoring systems); 4. That the south and west perimeter of the subject property should receive a six foot high heavy gauge aluminum picket fence that extends from the southeast corner of the site, 250' to the north and 250' to the east to be coordinated with the City's Police Department;and 5. The four existing exterior cameras (located in all four corners of the building), currently in place, should be upgraded to provide infrared images and that a maintenance contract for the system be provided that will assure the system will continue to work efficiently. IN THE CITY COMMISSION CHAMBERS OF THE CITY OF DELRAY BEACH, FLORIDA CONDITIONAL USE REQUEST FOR THE CHRIST FOR ALL NATIONS CHURCH (CRISTO PARA TODAS LAS NACIONES), 2280 WEST ATLANTIC AVENUE ORDER OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA 1. This conditional use request has come before the City Commission on June 4, 2013. This conditional use request is to allow the conversion of 3,499 sq. ft. of an existing 3,649 sq. ft. commercial structure into a church use with 150 sq. ft. to remain as a commercial religious retail shop. The commercial structure is located in the Congress Square Shopping Plaza at the southwest corner of West Atlantic Avenue and Congress Avenue. 2. The City staff, applicant, and other persons have presented documentary evidence and testimony to the City Commission pertaining to the conditional use request for the Christ for All Nations Church (Cristo para Todas las Naciones). All of the evidence is a part of the record in this case. Findings that are required pursuant to L. D. R. Section 3. 1.1 are made in Sections I and I I below. I. COMPREHENSIVE PLAN a. Comprehensive Plan - Future Land Use Element Objective A -1: This objective requires that the property shall be developed or redeveloped in a manner so that the future use and intensity is appropriate in terms of soil, topographic, and other applicable physical considerations, is complementary to adjacent land uses, and fulfills remaining land use needs. Is this objective met? Yes No b. Future Land Use Map: The resulting use of land or structures must be allowed in the zoning district within which the land is situated and said zoning must be 1 consistent with the applicable land use designation as shown on the Future Land Use Map. The subject property has a Future Land Use Map (FLUM) designation of GC (General Commercial) and a zoning designation of PC (Planned Commercial). Future Land Use - Is the project's proposed location consistent with the Future Land Use Map? Yes No C. Concurrency: Facilities which are provided by, or through, the City shall be provided to new development concurrent with issuance of a Certificate of Occupancy. These facilities shall be provided pursuant to levels of service established within the Comprehensive Plan. Concurrency as defined pursuant to Objective B -2 of the Land Use Element of the Comprehensive Plan must be met and a determination made that the public facility needs of the requested land use and /or development application will not exceed the ability of the City to fund and provide, or to require the provision of, needed capital improvements for the following areas: Are the concurrency requirements met as respect to water, sewer, drainage, streets and traffic, parks, open space, solid waste and schools? Yes No d. Consistency : Will the granting of the conditional use be consistent with and further the goals and policies of the Comprehensive Plan? Yes No II. LDR REQUIREMENTS a. Section 2.4.5(E)(5) requires certain findings: The conditional use will not: 1. Have a significantly detrimental effect upon the stability of the neighborhood within which it will be located; 2. Hinder development or redevelopment of nearby properties. 2 Has this requirement been met? Yes C7 3. The City Commission has applied the Comprehensive Plan and LDR requirements in existence at the time the conditional use application was submitted. 4. The City Commission finds there is ample and competent substantial evidence to support its findings in the record submitted and adopts the facts contained in the record including but not limited to the staff reports and testimony of witnesses supporting these findings. 5. Based on the entire record before it, the City Commission approves denies the conditional use application subject to the conditions attached hereto in Exhibit "A" and hereby adopts this Order this 4th day of June, 2013, by a vote of in favor and opposed. ATTEST: Chevelle Nubin City Clerk 3 Mayor EXHIBIT "A" Conditions Related to the Conditional Use Request for the Christ for All Nations Church (Cristo para Todas las Naciones). 1. Pursuant to LDR Section 4.4.9(D)(17), churches located within the PC (Planned Commercial) zoning districts do not permit child care or day care as an accessory use. If these uses are anticipated, they must be approved separately as an additional conditional use; 2. An additional approval is required for any new signage; 3. At a minimum, all existing parking lot perimeter `shoebox' style fixtures mounted on 25 -foot (25') poles located to the west of the most western access to the shopping center from West Atlantic Avenue must be replaced with metal halide or L.E.D. fixtures in order to eliminate glare and provide the truest visual value of color (to aid the camera monitoring systems); 4. A six -foot (6) high heavy -gauge aluminum picket fence shall be installed on the southern and western perimeter of the subject property. The fence must extend along the canal (located along the West perimeter) for 250 feet to the north and along the southern perimeter for 250 feet from the canal to the east. This condition shall be coordinated by the City's Police Department; and 5. The four existing exterior cameras (located in all four corners of the building), currently in place, must be upgraded to provide infrared images. In addition, proof of a system maintenance contract that ensures that the system will continue to work efficiently shall be provided to the City. 1 PLANNING AND ZONING BOARD CITY OF DELRAY BEACH -- -STAFF REPORT-- - MEETING DATE: May 20, 2013 ITEM: Conditional use request to allow the conversion of 3,499 sq. ft. bay within an existing shopping center into a church use. The property is located at 2280 West Atlantic Avenue, Suite 2206 within the Congress Square Shopping Plaza on the southwest corner of West Atlantic Avenue and Congress Avenue. GENERAL DATA: Applicant .................... Rosmer Pina Agent ......................... Artech Designers & Engineers, LLC. Location ......................... Southwest corner of West Atlantic Avenue and Congress Avenue (2280 West Atlantic Avenue, Suite 2206). Property Size ................... 0.084 acres FLUM ............................... GC (General Commercial) Zoning District ................... PC (Planned Commercial) Adjacent. Zoning........ North: PC (Planned Commercial)/GC (General Commercial East: MROC (Mixed Residential, Office and Commercial) South: MROC (Mixed Industrial & Commercial) West: Lake Worth Drainage District Canal E -4 OSR (Municipal Golf Course) Existing Land Use .............. Commercial Building Shopping Bay Proposed Land Use........... Church Use Water Service ................. Existing on -site Sewer Service ................ Existing on -site ITEM BEFORE THE BOARD The action before the Board is making a recommendation to the City Commission on the following request for conditional use approval pursuant to Land Development Regulations (LDR) Section 2.4.5(E)-. ❑ Pursuant to LDR Section 4.4.12(D)(1), all uses allowed as conditional uses within the GC (General Commercial) District [LDR Section 4.4.9 (D)] are also allowed as conditional uses within the PC (Planned Commercial) District. ❑ Pursuant to LDR Section 4.4.9(D)(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 are allowed as conditional uses within the PC (Planned Commercial) District. The foregoing does not allow establishment of educational and care uses such as elementary school and general day care. The request is in conjunction with the Christ For All Nations Church (Cristo pars Todas las Naciones), to allow the conversion of 3,499 sq. ft. into a church use out of an existing 3,649 sq. ft. commercial structure with the balance 150 sq. ft. to remain as a commercial religious retail shop. The Building is located within the Congress Square Shopping Plaza at the southwest corner of West Atlantic Avenue and Congress Avenue (2280 West Atlantic Avenue, Suite # 2206). BACKGROUND The Congress Square Shopping Plaza includes all of Tract C and a portion of Tract D, Congress Square, according to the Plat Recorded in Plat Book 46 Pages 198 -199 of the Public Records of Palm Beach County. The property contains 8.9 acres. At its meeting of July 9, 1979, the City Commission approved SAD (Special Activities District) Ordinance 45 -79 for the 94, 400 Congress Square shopping center on 9.9 acres including free standing 6,000 sq. ft. restaurant (Po Folk), and 8,000 sq. ft. bank building. Phase I of the shopping center was platted in 1982, and consisted of a one acre outparcel for the bank. Phase 11 was platted in 1984, and consisted of the balance of the shopping center containing 8.9 acres. The shopping center retained its SAD zoning until it was rezoned to PC (Planned Commercial) with the Citywide Rezoning associated with the adoption of the Land Development Regulations in 1990. In 1994, the City Commission approved a re -plat of Congress Square, which created an out - parcel to accommodate the conversion of the Po Folk restaurant to Bennett Auto Supply. At its June 30, 1999 meeting, the Site Plan Review and Appearance Board (SPRAB) approved a Class IV site plan modification associated with the demolition of the 6,000 sq. ft. Bennett Auto Supply store and construction of a new 13,095 sq. ft. Walgreens drugstore with a prescription lane, 77 parking spaces, loading dock area, trash compactor with screen wall, and associated landscaping. The proposed Christ for All Nations Church will occupy the first floor of a 2 -story commercial building. The first floor vacant commercial bay is located within the southwest portion of the Congress Square Plaza. It is noted that the most recent use of the first floor of the subject property was Techno -Pro, a vocational technical school offering computer, nursing, and driving Planning & Zoning Board Staff Report: Meeting of 05/20/13 Cristo Para Todas Las Naciones — Christ For All Nations Church — Conditional Use Request Page 2 courses, while the most recent tenant for the second floor (currently vacant) was R. E. Medical Supplies. Now before the Board for action is a recommendation to the City Commission on a conditional use request to establish the Christ for All Nations Church facility (Cristo para Todas ]as Naciones). PROJECT DESCRIPTION The proposed Christ for All Nations Church (Cristo para Todas las Naciones) will not modify the existing building foot -print and no exterior alterations are anticipated. The existing building partitions will be internally modified to allow the operation of the proposed church. The proposed church will include the following: • Conversion of 3,499 sq. ft. into a church use out of an existing 3,649 sq. ft. commercial structure with the balance 150 sq. ft. to remain as a commercial religious retail shop; • The church will have a congregation of about 124 members and this building site will be their first sanctuary; • Hours of operation will include: Thursdays evenings between 7:30 p.m. - 9:30 p.m. (Worship and Prayer); Saturdays between 7:00 a.m. - 8:00 a.m. (Worship and Prayer); and Sundays from 9:00 a.m. — 11 :00 a.m. (Sunday school) and 11 :00 a.m. — 1:00 p.m. (Worship and Prayer); Retail Shop /Book Store Monday through Friday 7:00 a.m. to 9:00 a.m. and Sunday 9:00 a.m. to 3:00 p.m.; • A Board made up of six (6) members will administer and organize the various church activities such as preaching, Sunday school, and bible study; + The interior modification of the existing building will include two (2) Sunday school and Bible study class rooms, an administrative office, pastor's office, a small retail shop, a babies' room and women and men restrooms; and • Other church functions common with places of religious assembly may occur from time to time such as church bazaars, fundraisers and various activities around the holidays such as Easter and Christmas. CONDITIONAL USE ANALYSIS REQUIRED FINDINGS (Chapter 3): Pursuant to LDR Section 3.1.1 (Required Findings), prior to the approval of development applications, certain findings must be made in a form which is part of the official record. This may be achieved through information on the application, the staff report, or minutes. Findings shall be made by the body, which has the authority to approve or deny the development application. These findings relate to the following areas. Planning & Zoning Board Staff Report: Meeting of 05/20/13 Cristo Para Todas Las Naciones — Christ For All Nations Church — Conditional Use Request Page 3 FUTURE LAND USE MAP - LDR Section 3.1.1(A1: The use or structures must be allowed in the zoning district and the zoning district must be consistent with the land use designation. The subject property has a Future Land Use Map (FLUM) designation of GC (General Commercial) and a zoning designation of PC (Planned Commercial), which are consistent with each other. Pursuant to LDR Section 4.4.12(D)(1), all uses allowed as conditional uses within the GC (General Commercial) District [LDR Section 4.4.9 (D)] are also allowed as conditional uses within the PC (Planned Commercial) District. Pursuant to LDR Section 4.4.9(D)(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 are allowed as conditional uses within the PC (Planned Commercial) District. The foregoing does not allow establishment of educational and care uses such as elementary school and general day care. As the the facility is not to be utilized for child care or a structured educational program, positive findings can be made with respect to consistency with the Future Land Use Map. A condition of approval is attached that that no child care or a structured educational program can be established within this building unless a separate application for conditional use is processed and approved by the Planning and Zoning Board and City Commission. CONCURRENCY - LDR Section 3.1.1(6): Facilities which are provided by, or through, the City shall be provided to new development concurrent with issuance of a Certificate of Occupancy. These facilities shall be provided pursuant to levels of service established within the Comprehensive Plan. As described in Appendix "A ", a positive finding of Concurrency can be made as it relates to water and sewer, streets and traffic, drainage, parks and recreation, open space, solid waste, and schools. CONSISTENCY - LDR Section 3.1.1[C): Compliance with performance standards set forth in Chapter 3 and required findings in LDR Section 2.4.5(E) (5) for the Conditional Use request shall be the basis upon which a finding of overall consistency is to be made. Other objectives and policies found in the adopted Comprehensive Plan may be used in making a finding of overall consistency. A review of the objectives and policies of the adopted Comprehensive Plan was conducted and the following applicable objectives and policies that are relevant to the Conditional Use application were noted: Future Land Use Element Ob'ective A -1: Property shall be developed or redeveloped in a manner so that the future use and intensity is appropriate and complies in terms of soil, topographic, and other applicable physical considerations, is complimentary to adjacent land uses, and fulfills remaining land use needs. It is noted that the existing commercial building is located within the Congress Square Shopping Plaza on the southwest portion of the plaza. The existing building complies with the minimum required building setbacks for the PC (Planned Commercial) zoning district. Churches have been approved throughout the northwest and southwest neighborhoods, frequently on Community Facilities (CF) -zoned properties where churches are a permitted use (as opposed to conditional use). CF -zoned properties are frequently located adjacent to established residential Planning & Zoning Board Staff Report: Meeting of 05/20/13 Cristo Para Todas Las Naciones — Christ For All Nations Church — Conditional Use Request Page 4 neighborhoods with residential zoning, and because of this, contain measures that help to insure compatibility. However, this is s the first case in the City of Delray Beach in which a church will be located within an existing shopping plaza. The proposed church will operate within an existing commercial building, and thus, there are no special physical or environmental characteristics of the land that would be negatively impacted by the proposed church. There is a concern with this type of use in a commercial shopping center as it relates to activity levels within the overall center. Given the limited hours of operation the space will remain inactive during regular retail operating hours. This location tucked back in the southwest corner of this site will mitigate some of these concerns. Further, the code has attempted to address these concerns by limiting the maximum size of such uses 3,500 sq. ft. and requiring a 750' separation between similar uses. Given this uses location within the center and the limits imposed by the LDR compatibility concerns with this application is limited. LDR SECTION 2.4.5(E) - REQUIRED FINDINGS: Pursuant to LDR Section 2.4.5(E) (5), in addition to provisions of Chapter 3, the City Commission must make findings that establishing the conditional use will not: (a) Have a significantly detrimental effect upon the stability of the neighborhood within which it will be located; (b) Hinder development or redevelopment of nearby properties. The following table identifies the zoning designations and uses that are adjacent to the subject property: The development proposes a change of use from a commercial structure to a church. The proposed development will not have detrimental effect upon the stability of the neighborhood or hinder redevelopment or development of nearby properties. The potential impact of an institutional use on a future tenant lessors within the center remains a concern. However, as noted above the current code would assure that similar institutional uses would not be allowed to occupy other space within this center. Given this, the negative impacts on the site are limited. SITE PLAN ANALYSIS COMPLIANCE WITH LAND DEVELOPMENT REGULATIONS: In conjunction with the Conditional Use request a site plan and floor plan was submitted which staff has reviewed. Based upon staff's review of the plans submitted and a site inspections, the following analysis is provided. Zoning: Use: North PC (Planned Commercial) Medical Office use South MROC (Mixed Residential Office and Commercial) Multistory Office Building, East PC (Planned Commercial) Currently vacant bay but previously occupied by a Medical Office use West OSR (Open Space and Recreation ) Beach Municipal Golf Course The development proposes a change of use from a commercial structure to a church. The proposed development will not have detrimental effect upon the stability of the neighborhood or hinder redevelopment or development of nearby properties. The potential impact of an institutional use on a future tenant lessors within the center remains a concern. However, as noted above the current code would assure that similar institutional uses would not be allowed to occupy other space within this center. Given this, the negative impacts on the site are limited. SITE PLAN ANALYSIS COMPLIANCE WITH LAND DEVELOPMENT REGULATIONS: In conjunction with the Conditional Use request a site plan and floor plan was submitted which staff has reviewed. Based upon staff's review of the plans submitted and a site inspections, the following analysis is provided. Planning & Zoning Board Staff Report: Meeting of 05/20/13 Cristo Para Todas Las Naciones — Christ For All Nations Church — Conditional Use Request Page 5 LDR Section 3.1.1(D) - Compliance with the LDRs: CPTED Review (Crime Prevention Through Environmental Design): The site is situated on the SW Corner of West Atlantic and Congress Avenue; just two blocks West of 1 -95. The proposal calls for the renovation of an existing two story 7,298 sq. ft. building contained in the greater 'Congress Square' plaza. Recent Police Department 'Calls for Service' trends in the area are well within acceptable levels though a vast portion of the site has been empty for several months. The greater plaza has a fair amount of transient related activity; it contains fast food restaurants and a 'Dunkin Donuts'. This report is based upon De {ray Beach Police Department records, on -site surveys, site plans, and accepted Crime Prevention Through Environmental Design (CPTED) guidelines. The Electrical Plans containing a Photometric Study are noticeably absent from submitted items. Safety and Security: Today, churches contain valuables that they never had in the past; including laptops, sound equipment, and flat screen TVs. The organization should provide a 'Security Plan', as part of the approval process. The plan should cover security of collected 'tithes and offerings', as well as contingencies for an 'active shooter'. "...For decades, every church was that sacred place that could leave its doors open 2417 and crime would be left at the doorstep. But times have changed, and so have churches and the criminal mentality toward them. Houses of worship have become a prime target. In any given 10 -day period through -out the year there will be dozens of crimes committed against Christian churches in the United States: crimes against property and crimes against persons. The exact number of crimes against houses of worship in the United States is a tough number to pin down. But raw data from the Justice Department shows tens of thousands of crimes occur on religious institution property every year. Over the past two years (one NGO — Non Government Organization) has tracked crimes against churches, it has documented dozens of violent incidents resulting in at least 20 homicides, almost 200 church arsons, hundreds of internal thefts, and thousands of property crimes resulting in more than $100 million in property losses. Some churches have scheduled activities from 6 in the morning until 10 at night almost every day of the week. Many provide daycare (or substance abuse counseling therapists) which may bring hundreds people to the location on any given weekday... ". Taken from "5 Ways to Prevent Crimes Against Churches ", Jeffrey Watkins, 2092. After receiving CPTED comments from the Police Department the applicant has submitted a Security Plan ( please see attached Security Plan). The Security and Fire plan submitted is a good starting point document for the business. However, it is recommended that the security plan should also address collection and count room procedures, bank runs procedures, etc. Natural Surveillance (NS): Exterior NS for the areas adjacent to the rear of the structure will be reasonable. However, NS from both Congress Avenue and West Atlantic Avenue will be little to none. Additionally, NS to the front main plaza parking lot will be heavily obstructed. However, there is an impact resistant glass storefront and double glass access door that provides access to the Planning & Zoning Board Staff Report: Meeting of 05/20/13 Cristo Para Todas Las Naciones — Christ For All Nations Church — Conditional Use Request Page 6 church retail religious store that will mitigate the concern for a natural surveillance from the main plaza parking lot. Lighting: The existing exterior lighting adjacent to the structure is antiquated; is characterized by `high pressure sodium', and 'fluorescent' fixtures. The former are expensive to use and both types create blinding glare which makes identification of assailants more than difficult. The parking lot perimeter contains 'Shoebox' style fixtures mounted on 25 foot poles. These fixtures are of the right type, but need to be reconditioned. Because equal importance is placed on 'quality' as well as 'quantity' of illumination, metal halide or L.E.D. fixtures should be used in order to eliminate glare and provide the truest visual value of color, and thus, this is attached as a condition of approval. Centers of Worship provide `Medium Low Risk' liability for employees and patrons; exterior areas should receive 2 Foot Candles (FC) during nighttime lighting conditions. The exterior entrance to the enclosed stairwell requires 5 FC of light with a minimum radius of 15' from the center of the door, and thus, this is attached as a condition of approval. After receiving CPTED comments from the Police Department regarding lighting conditions of the site, the applicant has depicted the exact location of the existing light poles on the site plan, as well as wall mounted light fixtures and CCTV surveillance cameras (existing and proposed) on the building elevations (please see attached Sheet A -2 and Sheet A -5). The applicant has also indicated that HHH Management, Inc. (agent for Congress Square Plaza, Ltd.), is in the process of designing a monitored CCTV security camera system for the subject property. The configuration of this CCTV security camera system is expected to include IP High Definition cameras, cameras to read license plates, High Definition video display and record. The letter for HHH Management indicates they expect to have this project completed within twelve months (please see attached letter). A photometric plan which complies with the standard illumination levels required by LDR Section 4.6.8 has been submitted. The exterior entrance to the enclosed stairwell depicts 6.9 FC illumination level which meets the 5 FC of light with a minimum radius of 15' from the center of the door; exterior parking lot area areas located to the rear depict 2 Foot Candies (FC) minimum illumination level as required by the Land Development Regulations, Natural Access Control [NAC]: Natural Access Control (NAC) from both Congress Avenue and West Atlantic Avenue will be adequate, but the parking lot will be grid - locked immediately after scheduled worship services. The Church will likely be a hub of activity in the evening hours as 'Christian Education' and training meet the needs of the Church members. The driveway for the adjacent office complex to the South comes within a 150 feet of the Church. The parking lot has direct access to Congress Avenue. To minimize the vulnerabilities that this readymade escape route creates for Church patrons, it is recommended that the South perimeter should receive a six foot heavy gauge aluminum picket fence that extends from the canal (located along the West perimeter) for at least 100 feet to the East. CCTV: An adequate digital CCTV system should monitor the activity of all users. It is recommended that the four exterior cameras, currently in place, should be upgraded to insure that they provide infrared images and that a maintenance contract on the system will insure that the system is always working properly. Thus, this attached as a condition of Planning & Zoning Board Staff Report: Meeting of 05/20/13 Cristo Para Todas Las Naciones — Christ For All Nations Church — Conditional Use Request Page 7 approval. Additional exterior cameras in the SW corner of the parking area, as well as inside the stairwell, will provide digital images of vehicles approaching and leaving from North and East. The system's mainframe should be accessible from the Church building. The applicant has indicated that HHH Management, Inc. (agent for Congress Square Plaza, Ltd.), is in the process of designing a monitored CCTV security camera system for the subject property. The configuration of this CCTV security camera system is expected to include IP High Definition cameras, cameras to read license plates, High Definition video display and record. The letter for HHH Management indicates they expect to have this project completed within twelve months (please see attached letter). Open Space: The proposed Christ for All Nations Church (Cristo para Todas las Naciones) will not modify the existing building foot -print and no exterior alterations to the existing building are anticipated. The existing building partitions will be internally modified to allow the operation of the proposed church. The Congress Square Plaza file on record indicates that 27.6% of the total site area (8.9 acres) is designated as open space while 25% pervious opens pace area is required by the Land Development Regulations (LDR). It is noted that at its meeting of August 10, 2005, the Site Plan Review and Appearance Board (SPRAB) approved a Class II Landscape plan modification which included significant improvements to the site. New vegetation was introduced around the dumpster enclosures, along the south (rear) of the building and associated parking areas and sidewalk, which included the planting of Silver Bismark Palms, Alexander Palms, Sabal Palms, Montgomery Palms, Pygmy Date Palms, Pigeon Plum trees, Green Buttonwood Trees, Cocoplum, Simpson Stoppers, Fire bushes, Wax jasmine, and Wart Ferns. Current conditions of existing landscape material have been found to be acceptable. Pa_ rking: Pursuant to LDR Section 4.6.9(C)(6)(c), churches shall provide one (1) space for every three (3) seats provided within the sanctuary. The proposed church will require a total of 41 spaces (124 seats 1 3 = 41.3). The church will only operate Thursdays evenings between 7:30 p.m. - 9:30 p.m. (Worship and Prayer); Saturdays between 7:00 a.m. - 8:00 a.m. (Worship and Prayer); and Sundays from 9:00 a.m. - 11:00 a.m. (Sunday school) and 11:00 p.m. - 1:00 p.m. (Worship and Prayer). The impact of the proposed church to the parking availability of the Congress Square Plaza would appear to be insignificant given the three day schedule of activities for the proposed church. Pursuant to LDR Section 4.6.9(C)(3)(e), shopping centers that contain between 25,000 and 400,000 sq. ft. shall provide four (4) spaces per 1000 sq. ft, of gross floor area irrespective of use. A review of the Congress Square Plaza file on record, indicates the shopping plaza currently has 93,490 sq. ft of floor space categorized as retail; 8,000 sq. ft. categorized as business and professional offices; and 3,800 categorized as medical offices; which requires a total of 421 parking spaces (105,290x411,000 =421 spaces). The Congress Square shopping plaza provides 443 spaces of which 14 are handicap accessible which indicates that the shopping plaza has a surplus of 22 parking spaces. There are no concerns regarding parking for the proposed use, and thus, this LDR requirement has been met. Handicap Parking and Accommodations: Pursuant to LDR Section 4.6.9 (C)(1)(b), handicap parking spaces and accommodations shall be provided. The Congress Square shopping plaza provides 443 spaces of which 14 are handicap accessible. It is noted that the proposed church will include one (1) handicap parking Planning & Zoning Board Staff Report: Meeting of 05/20/13 Cristo Para Todas Las Naciones — Christ For All Nations Church — Conditional Use Request Page 8 space which is ADA compliant which will be located adjacent to the main access to the church. Thus, this LDR requirement has been met. Refuse Enclosure: Pursuant to LDR Section 4.6.6(C)(1), dumpsters, recycling containers and similar service areas must be enclosed on three sides with vision obscuring gates on the fourth side, unless such areas are not visible from any adjacent public right -of -way. There is an existing dumpster located along the west property line to the rear of the building, approximately 215 feet to the north of the proposed church building. The proposed dumpster has been provided with swinging doors and is accessible from the rear parking lot area to the west. REVIEW BY OTHERS The development proposal is not located in an area that requires review by the CRA (Community Redevelopment Agency) or DDA (Downtown Development Authority). Courtesy Notices: Courtesy notices have been provided to the following homeowner's and/or civic associations which have requested notice of developments in their areas: Cl Delray Citizen's Coalition O Neighborhood Advisory Council Public Notices: Formal public notice was provided to property owners within a 500' radius of the subject property. Letters of support or objection, if any, will be presented at the Planning and Zoning Board meeting. ASSESSMENT AND CONCLUSION The action before the Board is making a recommendation to the City Commission on a request for conditional use approval pursuant to Land Development Regulations (LDR) Section 2.4.5(E). It is noted, this is the first case in the City of Delray Beach in which a church will be located within an existing shopping plaza. The proposed conversion of the 3,499 sq. ft. commercial structure to a one hundred twenty four (124) seats church creates some concerns. The proposed church will operate within an existing commercial building, and thus, there is a concern with this type of use in a commercial shopping center as it relates to activity levels within the overall center. Given the limited hours of operation the space will remain inactive during regular retail operating hours. The location tucked back in the southwest corner of this site will mitigate some of these concerns. Further, the code further addresses these concerns by limiting to 3,500 sq. ft. the maximum size of the use and by requiring 750' separation between similar uses. Negative impacts of noise and traffic on these adjacent properties are not anticipated if a church is established at the subject site. The proposed church will operate within an existing commercial building, and thus, there are no special physical or environmental characteristics of the land that would be negatively impacted by the church creates some concern. The Planning & Zoning Board Staff Report: Meeting of 05/20/13 Cristo Para Todas Las Naciones — Christ For All Nations Church — Conditional Use Request Page 9 conversion of 3,499 square feet of retail use to church use within the existing shopping plaza will lessen the traffic impact on the adjacent road network and site driveways. The proposed use is consistent with the objectives and policies of the Comprehensive Plan and Chapter 3 of the Land Development Regulations. Positive findings can be made with respect to LDR Section 2.4.5(E)(5) regarding compatibility of the proposed development with the surrounding properties. ALTERNATIVE ACTIONS A. Move postponement of the conditional use request to convert the existing retail structure to a church for Christ For All Nations Church (Cristo para Todas las Naciones), by electing to continue with direction. B. Move a recommendation of approval to the City commission of the conditional use request to allow the conversion of 3,499 sq. ft. into a church use for Christ For All Nations Church (Cristo para Todas las Naciones), 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 criteria set forth in Sections 2.4.5(E)(5) and Chapter 3 of the Land Development Regulations, subject to the following conditions of approval: Pursuant to LDR Section 4.4.9(D)(17), churches located within the PC (Planned Commercial) zoning districts do not permit child care or day care as an accessory use. If these uses are anticipated they must be approved separately as an additional conditional use; 2. An application is required for any new signage; 3. That all existing parking lot perimeter `shoebox' style fixtures mounted on 25 foot poles must be replaced with metal halide or L.E.D. fixtures in order to eliminate glare and provide the truest visual value of color; 4. That the South perimeter should receive a six foot heavy gauge aluminum picket fence that extends from the canal (located along the West perimeter) for at least 100 feet to the East; and 5. The four existing exterior cameras (located in all four corners of the building), currently in place, should be upgraded to provide infrared images and that a maintenance contract for the system be provided that will assure the system will continue to work efficiently. C. Move denial of the conditional use request to allow the conversion of 3,499 sq. ft. into a church use for Christ For All Nations Church (Cristo para Todas las Naciones), by adopting the findings of fact and law contained in the staff report, and finding that the request is inconsistent with the Comprehensive Plan and does not meet criteria set forth in Sections 2.4.5(E)(5) and Chapter 3 of the Land Development Regulations. RECOMMENDED ACTION Conditional Use Reauest Move a recommendation of approval to the City commission of the conditional use request to allow the conversion of 3,499 sq. ft. into a church use for Christ For All Nations Church Planning & Zoning Board Staff Report: Meeting of 05/20/13 Cristo Para Todas Las Naciones — Christ For All Nations Church — Conditional Use Request Page 10 (Cristo para Todas las Naciones), 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 criteria set forth in Sections 2.4.5(E)(5) and Chapter 3 of the Land Development Regulations, subject to the following conditions of approval: Pursuant to LDR Section 4.4.9(D)(17), churches located within the PC (Planned Commercial) zoning districts do not permit child care or day care as an accessory use. If these uses are anticipated they must be approved separately as an additional conditional use; 2. An application is required for any new signage; 3. That at a minimum all existing parking lot perimeter 'shoebox' style fixtures mounted on 25 foot poles located to the west of the most western access to the shopping center from West Atlantic Avenue must be replaced with metal halide or L.E.D. fixtures in order to eliminate glare and provide the truest visual value of color; 4. That the South perimeter should receive a six foot heavy gauge aluminum picket fence that extends from the canal (located along the West perimeter) for at least 100 feet to the East; and 5. The four existing exterior cameras (located in all four corners of the building), currently in place, should be upgraded to provide infrared images and that a maintenance contract for the system be provided that will assure the system will continue to work efficiently. Planning & Zoning Board Staff Report: Meeting of 05/20/13 Cristo Para Todas Las Naciones — Christ For All Nations Church — Conditional Use Request Page 11 APPENDIX A CONCURRENCY FINDINGS Pursuant to LDR Section 3.1.1(B), Concurrency, as defined pursuant to Objective B -2 of the Land Use Element of the Comprehensive Plan, must be met and a determination made that the public facility needs of the requested land use and/or development application will not exceed the ability of the City to fund and provide, or to require the provision of, needed capital improvements for the following areas: Water and Sewer.- • Water service is existing on the site • Sewer service is existing on the site Pursuant to the Comprehensive Plan, treatment capacity is available at the City's Water Treatment Plant and the South Central County Waste Water Treatment Plant for the City at build -out. Based upon the above, positive findings can be made with respect to this level of service standard. Streets and Traffic_ A traffic statement has been provided for the proposed development. The current proposal includes the conversion of 3,499 square feet from retail use to church use within the existing Congress Square shopping plaza. The existing and proposed uses for the shopping plaza are shown below: Existing Approved Uses Square Feet General Commercial Retail 93,490 Medical Office 3,800 Office 8,000 Total 105,200 Proposed Uses General Commercial Retail 89,991 Medical Office 3,800 Office 8,000 Church (conversion) 3,499 Total 105,290 The traffic generation potential for the existing uses is 4,015 ADT (Average Daily Trips), with 85 AM peak hour trips and 399 PM peak hour trips based on the published ITE (Institute of Traffic Engineers) Trip Generation Rates (8 "' Edition) as shown in Table 1 (see attached Table 1). The proposed conversion of 3,499 square feet of retail to church use will generate 3,931 ADT (Average Daily Trips), 85 AM peak hour trips and 390 PM peak hour trips. This equates to 84 less ADT, the same number of AM peak hour trips and 9 less PM peak hour trips when compared to the existing uses in the Congress Square Plaza. As there are 84 less Average Daily Trips, the same number of AM peak hour trips and 9 less PM peak hour trips when compared to the existing use, the conversion of 3,499 square feet of Planning & Zoning Board Staff Report: Meeting of 05/20/13 Cristo Para Todas Las Naciones — Christ For All Nations Church — Conditional Use Request Page 12 retail to church use within the existing shopping plaza will lessen the traffic impact on the adjacent road network and site driveways. A letter from the Palm Beach County Traffic Division has been provided indicating that the proposed conversion of use results in a reduction in the site daily and peak hour trips and therefore meets the Traffic Performance Standards of Palm Beach County Parks and Recreation Facilities. Park dedication requirements do not apply to non - residential uses. Thus, the proposed development will not have any impact with respect to this standard. Rnlirl Wi ztp The prior commercial use generated 6.38 tons of solid waste per year (3,649x 3.5= 12,77212,000 =6.38 Tons). The proposed church use will generate 2.8 tons of solid waste per year (3,499 sq. ft. x 1.6= 5,59812,000 =2.8 Tons). The small commercial area proposed by the church will generate 0.26 tons of solid waste per year (150 x 3.5 = 52512,000 = 0.26 tons). Thus, the proposed church will generate a total of 3.06 tons of solid waste per year (2.8 + 0.26 = 3.06) which equates to a net decreased of 3.32 tons of solid waste per year. The Solid Waste Authority has indicated that its facilities have sufficient capacity to accommodate all development proposals until 2031. Schools. School concurrency findings do not apply for non- residential uses. Thus, the proposed development will not have any impacts with respect to this standard. Drainage: Drainage is existing on site through an exfiltration trench system and inlets along the parking areas of the Congress Square Plaza. Planning & Zoning Board Staff Report: Meeting of 05/20/13 Cristo Para Todas Las Naciones — Christ For All Nations Church — Conditional Use Request Page 13 TABLE 1 CONGRESS SQUARE SHOPPING PLAZA TRIP GENERATION Land Use Intensity Daily AM Peak flour P\i Peak hour Total I In Out Total la Uut Iki S ExisLirEe Approved Site Generation General Commercial Retail 93,490 s.f. 6,297 93 57 36 605 '292 316 Medical Office 3A00 s.f. 137 9 7 2 16 4 12 Office 8,000 s.f. 141 25 22 3 29 5 24 Subtotal 105,290 6,635 127 86 41 (63 301 ,ia2 Pass-By f- 4pture Retail 40.93C°c: 2,577 _18 u 23 15 249 12I,) 12« Medical Office € 0% 14 1 € - 2 2 Office 10% 14 3 ? 1 3 Subtotal 2,610 42 26 16 2,54 121 133 Approved Net Trips 4,015 85 60 25 3519 1811 'Lisa EMosgd Site Generation General Commercial Retail 89,841 s_f. 6,138 90 55 35 592 2&3 -108 Meciica€ Office 3,800 s.t- 137 9 7 2 16 4 L2 Office 8,000 s.f. 191 25 22 3 29 5 24 Church 3,649 s.f. 33 2 1 1 2 1 I Subtotal 105,290 6,499 126 85 41 6" 294 345 Pass -By Caawre Retail 41.30% 2,535 37 23 14 244 L17 127 Medical Office 10% 14 1 1 - 2 - 2 Office Church 10% 5% 19 2 3 - 2 - 1 3 1 2 Subtotal 2,565 41 26 15 249 11a 131 Proposed Net Trips 3,931 55 59 26 390 176 214 OPOSED NEW TRIPS (84) - (1) 1 (`) (4) (5) PROPOSED NEW DR VEWAY TRIM (126) (1) cn (14) (7) (7) Pass -by capture rates are based oa those published by Palm Beach County. 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LFl; LIGHT FIXTURE TYPEI: 2XPl_-26W WALL PACK (TWO LIGHT BULBS) 4, UPGRADE EXISTING SURVEILLANCE CAMERAS 70 PROVIDE INFRARED IMAOFS, SAME AS PROPOSED CAMERAS. mmmm� 0 4' 3' 16, Y,Pll mmPmI ❑ 41 0. 16. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ----------------------- -------- --------------------- A Hill H EXISTING r5_ EAST ELEVATION 0 4' 8' 16 ROOF MOUNT A UNITS AW Jmij I-, FGofPIan & Elevations .0 -0 -2 3 ti �Ne ------------ ------ r 51• -5" - - - - 2P 3�'- � � • � �E 30' -&2 20' -1 -02 — ll'_ 7, -1. .:R' -6. 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Atlantic Ave., Delray Beach, Florida To Whom It May Concern: Please be advised that HHH Management, Inc. is in the process of designing a monitored CCTV security camera system for the above referenced property. We are taking proposals at this time and working with professionals in the field. The configuration will include IP High Definition cameras, cameras to read License plates, HD video display and record, etc, Attached are a few specifications_ We are implementing these systems in a few of our properties and we are expecting to have this project completed within twelve months. Yours truly, HHH (MANAGEMENT, INC., as agent Cong( esssSSquare, Ltd. yn l ! 1 l; Grossman (Property Manager Encl, 1?U_ [lox 273,760 • Boca Raton. Hodda 334'7 -3760 U.S.A. - Tel. 561-9Q4-2-)33 - Fax. 56[-994-2191) • wuu 1shlunxaaua4cmeml.cum Planning & Zoning Board Staff ktIport: Meeting of 05/20/13 Cristo Para codas Las Naciones — Christ For All Nations Church — Conditional Use Request Page 15 MSI•Bullel • 2mp 2Me�ap rel foil HI} Me?wvrr. 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PM MOOR ,QMKLP,WST/F R AlP51fW Do OKFFT(9fi"%FP�i�e;RaS �y�$ V��[n /y��ly �f GWRL1Y SwlPlm Gail ±PhX4%tAbdkWmiim -two Fair" CQN PUB?-�45 ACB ORI9,tv, Department of Engineering and Public Works P.O. Box 211229 West Palm Beach, FL 33416 -122.9 (561) 684 -4000 FAX' (561) 684 -4050 www pbcgov com ■ Palm Beach County Board of County Commissioners Steven L. Abrams, Mayor Priscilla A. Taylor, Vice Mayor Hal R. valeche Paulette Burdick Shelley Vana Mary Lou Berger Jess R. Santamana County Administrator Robert Weisman 'An Equal Opporruntry Affirmative Action Emftyer" & panted on recycled paper May 14, 2013 Mr. Paul Dorling Planning Director City of Delray Beach 100 N.W. First Avenue Delray Beach, FL 33444 Ny 16 _dj� PE LANNING &' ZONING RE: Christ for all Nations Church Project #: 130414 TRAFFIC PERFORMANCE STANDARDS REVIEW Dear Mr. Dorling: The Palm Beach County Traffic Engineering Division has reviewed the traffic statement for the proposed change to the Traffic Performance of use project entitled Christ for all Nations Church, pursuant Standards in Article 12 of the Palm Beach County Land Development Code. The project is summarized as follows: Location: SW corner of the intersection of W. Atlantic and Congress Avenues. Municipality: Delray Beach PCN M. 12-43-46-18-56- 002 -0010. Existing Uses: Shopping Center with 93,490 SF General Retail, 3,800 SF Medical Office, and 8,000 SF General Office. Proposed uses: Conversion of Existing 3,649 SF General Retail to Church. New Daily Trips: Trip Reduction New PH Trips: Trip Reduction Build -Out: End of Year 2014 Based on our review, the Traffic Division has determined the proposed change in use results in reduction in the site daily and peak hour trips and therefore meets the Traffic Performance Standards of Palm Beach County. No building permits are to be issued by the City after the build -out date specified above. The County traffic concurrency approval is subject to the Project Aggregation Rules set forth in the Traffic Performance Standards Ordinance. If you have any questions regarding this determination, please contact me at (561) 684- 4030 or email to matefi ,pbcgov.org. Sincerely, Masoud Atefl MSCE TPS Adminis�rator,M. icipalities, Traffic Engineering Division MA:saf:meo �� ec: JMD Engineering, Inc. File: General - TPS - Mun - Traffic Study Review F:I TRAFFIC1mal AdminlApprovals`20131130414.doc 1 AM- 'kill. j iQ r1 I M i a� F Y o= MEMORANDUM TO: Mayor and City Commissioners FROM: Mark McDonnell, AICP, Assistant Director of Planning & Zoning Paul Dorling, AICP, Director of Planning & Zoning THROUGH: Louie Chapman, Jr., City Manager DATE: May 28, 2013 SUBJECT: AGENDA ITEM 9.C. - REGULAR COMMISSION MEETING OF JUNE 4, 2013 INITIATION OF AN AMENDMENT TO LAND DEVELOPMENT REGULATIONS ITEM BEFORE COMMISSION Initiation of an amendment to the Land Development Regulations that will prohibit offices uses on the ground floor of structures located along NE 2nd Avenue in the Pineapple Grove Neighborhood Area, unless certain conditions exist. Pursuant to LDR Section 2.4.5 (M)(1), amendments to the Land Development Regulations may be initiated by the City Commission. BACKGROUND The current LDR regulations prohibit office uses, including financial institutions (such as banks, savings and loans, credit unions, and mortgage offices) to locate on the ground floor of businesses which have an entry from and /or windows along and/or frontage on Atlantic Avenue in the Central Core and Beach Areas of the Central Business District (CBD). The exception to this existing prohibition includes buildings that have 80% or more of their fagade frontage setback a distance of 25 feet or greater. The introduction of a recent office use in the former location of the Tag Bar (25 NE 2nd Avenue) raised a concern that if office uses were to begin locating on ground floors of structures along Pineapple Grove Way as currently allowed, then the desired vibrant, active, pedestrian experience could be jeopardized. Accordingly, there is an interest in extending the same prohibition of office uses on the ground floor along Pineapple Grove Way, similar to that which is already applied to Atlantic Avenue, to ensure the continued success of this area. The area this amendment would affect is on both sides of Pineapple Grove Way, beginning at Atlantic Avenue and extending north to NE 3rd Street. Specific properties that contain >80% of their building frontage, located at a setback that measures 25 feet or greater would not be impacted by the proposed regulation and will continue to allow office uses on the ground floors. DELRAY BEACH DOWNTOWN MASTER PLAN The Downtown Master Plan adopted on March 19, 2002 includes a section specific to Pineapple Grove, and the objectives and recommendations contained within the Pineapple Grove Neighborhood Plan were incorporated into the Downtown Delray Beach Master Plan. The master plan states that Pineapple Grove Way is to be transformed from a vehicular - oriented to a pedestrian friendly environment. One mechanism for accomplishing this is to allow infill development to occur within the existing private parking lots fronting on Pineapple Grove Way. This would provide for continuous storefronts along the street, which would encourage greater pedestrian movements. Mixed uses, with residential located above commercial development is encouraged, as is higher density residential. Inactive space at nighttime is not desired along this corridor, as it conflicts with the goal to create a vibrant and visually interesting experience, and can diminish the safety of the area due to the lack of activity. Office uses are generally closed during the evening and nighttime hours, and should be avoided along corridors where an enhanced pedestrian experience is the goal. REVIEW BY OTHERS Upon initiation of this amendment, it will be reviewed by the Pineapple Grove Main Street committee, the Downtown Development Authority, the Community Redevelopment Agency, and by the Planning and Zoning Board. The item will return to the City Commission for consideration at first reading of an ordinance once a recommendation is made by the Planning and Zoning Board. RECOMMENDATION Initiate the amendment to the Land Development Regulations. SECTION 4.4.13 (H) (H) Special Regulations: (1) Office uses including financial institutions (e.g. banks, savings and loans, credit unions, and mortgage offices) shall not be allowed on the ground floor within businesses which have an entry from and /or windows along and /or frontage on Atlantic Avenue in the Central Core Area or the Beach Area -, or along NE 2nd Avenue from Atlantic Avenue to NE 3rd Street. Office uses shall be allowed up to 50% of the ground floor as a permitted use within businesses which have an entry from and /or windows along and /or frontage on Atlantic Avenue in the West Atlantic Area and as a Conditional Use if greater than 50 %. Office uses are allowed on floors other than the ground floor along Atlantic Avenue and NE 2nd Avenue and on all floors elsewhere in the CBD district. This regulation shall not apply to existing buildings in the Central Core Area or the Beach Area that have 80% or more of their frontage at a setback of 25 feet or greater. [Amd. Ord. 21 -07 6/19/07]; [Amd. Ord. 45 -06 9/19/06] (2) The sale of second hand material, other than verifiable antiques, shall not be allowed within businesses nor on properties which have an entry from and /or windows along and /or frontage on Atlantic Avenue or N.E. 2nd Avenue (a /k/a Pineapple Grove Way) between East Atlantic Avenue and N.E. 4t" Street. [Amd. Ord. 45 -06 9/19/06]; [Amd. Ord. 64 -04 11/16/04]; [Amd. Ord. 22 -99 7/20/99]; [Amd. Ord. 14 -98 3/17/98]; [Amd. Ord. 58 -90 12/11/90] (3) The sale of automotive parts, firearms, and lawn care equipment, shall not be allowed within the West Atlantic Neighborhood nor within businesses or on properties which have an entry from and /or windows along and /or frontage on East Atlantic Avenue or N.E. 2nd Avenue (a /k/a Pineapple Grove Way) between East Atlantic Avenue and N.E. 4t" Street. [Amd. Ord. 45 -06 9/19/06]; [Amd. Ord. 64 -04 11/16/04] (4) The picking -up, dropping -off, or otherwise transporting workers, assigned through an employment agency, from an assembly point in the CBD to the work site is prohibited, except within the West Atlantic Neighborhood area provided the structure involved does not have an entrance from and /or windows facing West Atlantic Avenue. [Amd. Ord. 45 -06 9/19/06]; [Amd. Ord. 64 -04 11/16/04] (5) Within the West Atlantic Neighborhood, all permitted uses with drive - through facilities shall require conditional use approval. [Amd. Ord. 45 -06 9/19/06]; [Amd. Ord. 64 -04 11/16/04] (6) Minimum floor area for multi - family residential dwelling units shall be as established for the Medium Density Residential (RM) zoning district in Section 4.3.4(K). [Amd. Ord. 45 -06 9/19/06]; [Amd. Ord. 8 -98 2/3/98]; [Amd. Ord. 80 -95 12/5/95] (7) Multi- family dwelling units may be located in structures that are comprised of residential units only or in mixed -use buildings that contain a combination of residential and non - residential uses. However, where residential uses are located in structures having frontage on Atlantic Avenue, NW /SW 5t" Avenue or N.E. 2nd Avenue (a /k/a Pineapple Grove Way), there must be nonresidential uses fronting the Avenue on the ground floor. In lieu of providing non - residential uses fronting the west side of N.E. 2nd Avenue between N.E. 3rd Street and N.E. 4 t" Street (hereinafter referred to as the SECTION 4.4.13 (H) exception area), the developer may elect to provide a building and property fronting on N.E. 2nd Avenue at the intersection of N.E. 3rd Street and N. E. 2nd Avenue which shall be conveyed to the City for Community Facility purposes and dedicate an area for Open Space in the northeast corner at the intersection of N. E. 2nd Avenue and N.E. 4t" Street. The purpose of the alternative is to encourage pedestrian travel, promotion of the Arts, the provision of needed Open Space, encouraging public art and to provide space for an entry way feature, all of which is in keeping with the vision for Pineapple Grove. If the developer chooses the alternative in the exception area instead of providing non - residential uses, he must submit a developer's agreement containing terms acceptable to the City at the time of application of a building permit. [Amd. Ord. 47 -06 10/03/06]; [Amd. Ord. 45 -06 9/19/06]; [Amd. Ord. 64 -04 11/16/04]; [Amd. Ord. 22 -99 7/20/99]; [Amd. Ord. 8 -98 2/3/98]; [Amd. Ord. 80 -95 12/5/95] (8) The rental of sporting goods and equipment shall be limited to no more than one business renting a specific category of item (i.e. bicycles, skates, etc.) every 300 feet measured in a straight line from door to door, and any outdoor displays are subject to the restrictions set forth in Section 4.6.6(C)(3). [Amd. Ord. 45 -06 9/19/06]; [Amd. Ord. 15 -98 4/21/98] (9) 24 -Hour or late night businesses as defined herein must be processed as a conditional use and are subject to the provisions of Section 4.3.3(W). [Amd. Ord. 45 -06 9/19/06]; [Amd. Ord. 41 -01 8/7/01] DELETED SUBPARAGRAPHS 4.4.13(H) (3) AND (4) IN THEIR ENTIRETY. [Amd. Ord. 33 -95 6/20/95] NEIGHBORHOOD AREA CITY OF DELRAY BEACH, FL PLANNING &ZONING DEPARTMENT ZONING MAP MI t1 - NIIIIIII= MINI NIIIIIII. =1111= � N ; • • • , 7 .. N =IIN� i11iI1N� 1 r 3 ■ I I I =N NII N N _ _ - _ ■ �� IINI,I NuuI�' . ii � .111111 VIII: N► = .:� N 111111 �� 1 HI 111111 NNE �_ _■� NN N SUBJECT AREA PINEAPPLE GROVE --Nmmmr-- NEIGHBORHOOD AREA CITY OF DELRAY BEACH, FL PLANNING &ZONING DEPARTMENT ZONING MAP MEMORANDUM TO: Mayor and City Commissioners FROM: Robert A. Barcinski, Assistant City Manager THROUGH: Louie Chapman, Jr., City Manager DATE: May 29, 2013 SUBJECT: AGENDA ITEM 9.D. - REGULAR COMMISSION MEETING OF JUNE 4, 2013 SPECIAL EVENT REOUESUGIVE AWAY SCHOOL SUPPLIES ITEM BEFORE COMMISSION City Commission is requested to approve a special event permit for "Give Away School Supplies," proposed to be held on July 26, 2013 from noon to 10:00 p.m., sponsored by Double Action / Caribbean Grocery, to grant a temporary use permit per LDR's Section 2.4.6(F) for the closure of SE 3rd Avenue between SE 2nd Street and SE 3rd Street, and authorize staff support for traffic control and security, stage use and setup, City generator use, barricading, trash boxes and light tower rental. BACKGROUND Attached are a special event permit, budget, site plan and economic calculator prepared by Mr. Albert Jerome for this event. They will be responsible for all aspects of event management. This group held a similar event prior to Christmas, which was considered a minor event and approved administratively. Based on our experience with that event, police staffing is increasing, raising total costs. Total estimated overtime costs are $1,925, a 5% administrative fee of $95, trash boxes $35, light tower rental $165, stage rental and set up $250, for a total estimated cost of $2,470. Per Event Policies and Procedures, the event producer is required to pay 100% of these costs. Although their budget reflects a deficit, I have been assured by the event producer that the funds needed will be raised and/or number of back packs given away will be reduced. RECOMMENDATION Staff recommends consideration of the special event permit, temporary use permit for the street closure, staff assistance as required, barricading, City generator use, trash boxes and stage use based on the following conditions: 1. Provide Hold Harmless Agreement and Certificate of Event Liability Insurance by July 11, 2013. 2. Payment of a deposit in the amount of $300 by July 11, 2013. City of Delray Beach Special Event Permit Application REVISED 11.2.11 PLEASE TYPE OR PRE' Event Name/Title: r' ✓ Event Date(s): DELRAY BEACH R bcad t�ce1 v f.a',���c�cr 701 n� 0* V 1 8 T Rg r r v iE S E R V i Z S 9993 3 001 r Times: / .'pd /D, ��I c9 4 Requesting street closure: yes V no (If yes, need time /date for closure and reopening) N Event Sponsor/Producer: ` /�G f; ��'I ��a a',`��° �i ✓Ir aGe Event Contact/Coordinator: 'r' n'/ ! L U 61'eiJ Name: a xyl e Address: '`I ,Ie. # �Q 3/�3 Telephone Number: 8" ' a C llular Numbo : 6_Y,,1 E -mail Address:,`,.y/ �ornLgsE -,NFA. Event DescrintiozalPurnose: % �i�j/ / -:,' ✓� iz. SC� 1z, Brief History of Event (If applicable): Planned Activities (Outline of activities /number of activities, i.e. entertainment, children's rides, games, other programs): i Iv ��� _ Page 1 of 5 W` Page 2 of 5 Number of Individuals Served Previous Year (if applicable): /.,hflfl Describe your Marketing/Promotions Program (How will you arketlpromo , i.e. TV, radio, posters, flyers, web sites, other): k (r LYE Ir Y7 & r ctc a M Sponsor Category (please check) City o Non-Profit/Charitable ne Private 4� Co- Sponsor - Non -Prof t /Private u (If Non-profit attach proof of 50Ic(3), c(9), c(6), C(10), or c(19) or ( ) Event Location (Describe area boundaries of event/location): ewe,- Site plan attached: yes V/ no (Site plan required for entire event site. Include locations of tents, stage, portalets, dumpsters, portable lighting, and barricade location if applicable.) Rental of Old School Square: yes no_ (If yes, attach proof of approval) / Rental of Old School Square Park: yes no (If yes, attach proof of rental agreement with Parks & Recreation) Private Property Use: yes 1 no (If yes, attach letter giving authorization from property owner) Event budget Revenue & Expenses attached: yes �'/ no (Required for all events) U\wwdatMSpecial Event Request\Special Event Permit Application REVISED FINAL FYI 0- 11 (3).doc Previous year Revenue/Expense summary attached: yes (Required for all events) Arts and Economic Impact Calculator attached: yes Obtained on line at www.AmericansForTheArts.org (Required for all events except minor events and 5K Runs) Do you have cash sponsors for the event: yes X/ (Indicated on budget) Do you have inkind sponsors for the event: yes_ (Indicated on budget) 1061 .• Page 3 of 5 no no J Serving or selling alcoholic beverages: yes no If yes, what entity is obtaining the Alcohol License permit? (If yes, copy of license and alcohol liability insurance required two (2) weeks prior to event) / Event certificate of insurance attached: yes no (Required two (2) weeks prior to event naming the City as additional insured, also required for vendors) / Playing of amplified music: yes no (Waiver required) Will there be entertainment: yes v no (If yes, attached list of Performers and/or DJ's) If yes, sponsor agrees all entertainment w611 b oriented and contain no obscenities: yes no Requesting Police assistance: yes no (traffic control/security) / Will supplement with private security: yes no ✓ (If yes, need plan attached) / Requesting Emergency Medical assistance: yes no ✓ Requesting barricade assistance: yes �� no (If no, how are you handling ?) / Requesting trash removallclean up assistance: yes no J (If no, how are you handling ?) Requesting trash boxes /containers and liners: yes V no Requesting stage use: yes no (If yes, check type) Large stage (14'x 361) ❑ Small stage (16' x 21') w/Haif small stage (8' x 21') ❑ U:\wwdatalspecial Event RegaestlSpecial Event Permit Application REVISED FINAL FY10 -1 1(3).doc Requesting signage: yes Type: 4'x4'Event sign Parking Signs Banner hanging Indicate dates require (Waiver required if more than two (2) week prior to event) Requesting City Portable Generator: yes .✓ (If yes, size & power) Food and beverage vendors: If yes, approximate number (Health Department approval required) Other vendors: (Indicate type) yes yes Tents: yes If yes, How many What size or size required (If yes, tent permits and fire inspections may be needed) no no J no no J no s/ Page 4 of 5 no Will the event include amusement rides: yes V1, no AO (If yes, type and location and copy of liability insurance required, also requires state license and inspection.) Will the event be gated: yes no .. A/� (Show on-site n:ap) / Will there be a charge for the event: yes no (If yes, indicate ticket prices) $ Will there be fireworks or other pyrotechnics: yes no V (If yes, contact Fire Marshal to obtain and complete permit application) Will there be cooking with compressed gas: yes no 1/� (If yes, contact Fire Marshal for inspections) Will you be providing port-a -lets for the event: yes no_.,�______..__ (If yes, locate on-site map. If no, indicate how you will Handle restroom needs) Is reserved parking requested: yes no 1/ (If yes, indicate locations and purpose for use) UAwwdatalSpecial Event Request\Special Event Permst Application REVISED FRTAL F'Y10- 11(3).doc Page 5 of 5 Event Permit Attachments: Revenue/Expense Budget Revenue/Expense Recap Last Years Event Site Plan Arts and Economic Inipact Calendar Letter Requesting Noise Ordinance Waiver Letter Requesting Waiver Consumption Alcohol Beverages Proof of Non-Profit Status General Liability Insurance Certificate Alcohol Beverage Liability Certificate Proof of Rental Agreement or Authorization Letter from Private Property Owner Hold Harmless Agreement, notarized. Submittal Date Requirements: • Minor Event 45 days prior to event • Intermediate Event 90 days prior to event • Major Event 120 days prior to event • Neighborhood Block Party 30 days prior to event Eve nt tractor /Coord' ator D to Please print: b®g C a S L v C f C n1 Please enclose the appropriate non - refundable application fee payable to the City of Delray Beach, 100 N.W. lst Avenue, Delray Beach, Florida 33444. Required with permit application. For ,Staff Use Only I Date Received Application fee received $ 4141-3 U:lwwdataLSpecial Event RequesA*cial Event Permit Application REVISED FINAL FY10- 11(3).doc 4 1 1' OUR SUPPORT FOR CHILDREN IN NEED 229 SE 2ND AVENUE SUITE 5 DELRAY BEACH, FL 33483 TEL: (561) 859 -9277 The mission of this organization is to take care of the children in the community, fighting hunger. It was formed based on jobless and homeless family. The organization goal's to fight hunger as providing nutrition for the less unfortunate ones to have a better future with the growing children. The leaders are Dorcas Lucien, Albert Jerome, Phito Luc ... It's really important to the Delray Beach Community to have this organization because they really need it as described above. The Delray Beach population size is about 61,000 almost half of them is Haitian. The Fair event scheduled on July 26 2013 The location & facility: - Location is the city of Delray Beach, give away school supplies - Expected visitors attendance from about 1,500 to 2,500 people - VIP meet & greet with Delray Beach elected officials, dignitaries and local community business leaders such as Mrs. Gary, Mr. Albert Jerome etc... - Event starts at 12:00 pm until 10:00 pm. - Main stage area to be used by the headliner musical. Streets closure, Police & fire presence, Public toilets, Garbage containers, clean up after event, etc... - Promotional tools for spreading the word, such as: Media,TV broadcasting, local newspapers & sun sentinel, local radio's, Flyers to reach out to local shops and stores, art galleries, local bars and clubs, city hall, library, fire station. OUR SUPPORT FOR CHILDREN IN NEED 229 SE 2ND AVENUE SUITE 5 DELRAY BEACH, FL 33483 TEL. (561) 8599277 Income Sponsorships Double Action $ 1,000.00 Caribbean Grocery $ 15000.00 Chez Ti Doc Restaurant $ 1,000.00 Total income $ 3,000.00 Expenses Category Description Dollars 250 Backpacks School backpacks 2,500.00 250 Lunch boxes School Items 1,250.00 250 Notebooks Pencil, pens School Items 300.00 Blender /Coffee maker /toaster 2,000.00 TV /Board casting/local radio and flyers 15850.00 Rides for kids and adults 4,876.00 Pizza/drink and patty 500.00 Entertainment DJ 1,000.00 Entertainers and performing artists 25000.00 Stage/Light /Generator (city fee) 1,375.00 Total expenses Net need 17,671.00 14,671.00 OUR SUPPORT FOR CHILDREN IN NEED 229 SE 2ND AVENUE SUITE 5 DELRAY BEACH, FL 33483 TEL: (561) 859 -9277 Income Sponsorships Double Action $ 3,000.00 Caribbean Grocery $ 15500.00 B5 Investment LLC, NCC Development David K. Biggs, Mai /principal $ 1,000.00 Chez Ti Doc Restaurant $ 15000.00 Shuman Flooring $ 1,250.00 Total income $ 7,750.00 Expenses Category Description Dollars 250 Bicycles 250 Blenders 250 Backpacks 250 Lunch boxes 250 Notebooks Pencil, pens Entertainment DJ Stage Lights Net need kids and adults House items School backpacks School Items School Items Smallest size Generator Total expenses 8,765.00 3,750.00 2,500.00 1,250.00 300.00 1,000.00 1,000.00 city provided 18,550.00 10,800.00 Arts & Economic Prosperity IV: Calculator Page 1 of 2 STEP:. Z. - OPULATIOfii POPULATION of your community: Your Organization's TOTAL EXPENSES (please do not use commas): TOTAL ATTENDANCE to your organization's arts events (again, do not use commas): =- CALCULATE r -Resef i,. 50,000 to 99,999 IS $117550 ill S '. Total The total dollars spent by your nonprofit arts and culture organization and its audiences; event - Expenditures: related spending by arts and culture audiences is estimated using the average dollars spent per person by arts event attendees in similarly populated communities. FTE Jobs: The total number of full time equivalent (FTE) jobs in your community that are supported by the expenditures made by your arts and culture organization and/or its audiences. An FTE can be one http: / /,"ww.americansforthearts. org/ information _scivices /researeIVservices /economic _imp... 5/17/2013 Total Expenditures FTE Jobs Household Income Local Government Revenue State Government Revenue Nonprofit Arts and Culture $17,55011 0.61 $14,765 $612 $721 Organizations: Nonprofit Arts and Culture $20,3101 0.6 $12,261 $1,0641 $1,153 Audiences: Total Industry Impact: Sum Organ izabcns Audiences) $37,860!, 1.2 $27,026 $1,676 $1,874 (The or and � Print_Yotl�Resul #r�? Please see the fine Print below, S '. Total The total dollars spent by your nonprofit arts and culture organization and its audiences; event - Expenditures: related spending by arts and culture audiences is estimated using the average dollars spent per person by arts event attendees in similarly populated communities. FTE Jobs: The total number of full time equivalent (FTE) jobs in your community that are supported by the expenditures made by your arts and culture organization and/or its audiences. An FTE can be one http: / /,"ww.americansforthearts. org/ information _scivices /researeIVservices /economic _imp... 5/17/2013 MAY 15, 2013 RE: GIVE AWAY SCHOOL SUPPLIES DATE: JULY 26, 2013 BUDGET: DOUBLE ACTION WILL GIVE A TOTAL AMOUNT OF $4000.00 FOR THE EVENT CARIBBEAN GROCERY WILL DONATE A TOTAL AMOUNT OF $4,000.00 CHEZ TIDOC RESTAURANT WILL GIVE A TOTAL AMOUNT OF $2,500.00 WAL MART WILL PAY A TOTAL AMOUNT OF #1,500.00 TOTAL EXPENSES $17, 671.00 TOTAL INCOME $ 12,000.00 NET NEED $ 5,671.00 DORCAS LUCIEN Back to School 10( t 's or PO ol! Albert Jerome Madam Gary 229 SE 2 nd Ave Delray Beach, FL 334Iy June 4, 2013 Mayor Glickstein & City Commission City of Delray Beach 100 NW Ist Ave welray Beach, FL 33444 um� i,�i ��l1 �IiI gY�i��' VI' �' GPI Mj` I ,� �i ��� ��I)� �� �Ja ���I ��r�� � ,1 THE VALENCIA ROOM 501 EAST CAMINO REAL . BOCA RATON,, FIL 33432 *USE THE MAIN ENTRANCE TO THE B OCA HO TEL & PARKING IS C0.14'PWd EWTAR Y F,"LEASE RSVP BY JUNE "1071-111 BY EMAILOINFO@PROTECTOURBEACHES.C,,� OM""'O,,R BY PHONE, (,561)228-7055 MEMORANDUM TO: Mayor and City Commissioners FROM: David Boyd, Finance Director Lisa M. Herrmann, Budget Officer THROUGH: Louie Chapman, Jr., City Manager DATE: May 23, 2013 SUBJECT: AGENDA ITEM 9.E. - REGULAR COMMISSION MEETING OF JUNE 4, 2013 RESOLUTION NO. 30-131 MID YEAR BUDGET AMENDMENT ITEM BEFORE COMMISSION The Commission is requested to consider Resolution No. 30 -13 which amends the FY 2012 -13 budget. BACKGROUND This budget amendment will allow for budget adjustments for grants, additional funding for projects and roll fowards of funds in the Neighborhood Services Fund. Expenses and revenues related to the FED Cup match and additional project scope for the beach have also been added. A more detailed explanation of each fund request is in the attached expense narrative. RECOMMENDATION Recommend approval of Resolution No. 30 -13 amending the FY 2012 -13 budget. RESOLUTION NO. 30 -13 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AMENDING RESOLUTION NO. 49 -12 ADOPTED SEPTEMBER 20, 2012 WHICH MADE APPROPRIATIONS OF SUMS OF MONEY FOR ALL NECESSARY EXPENDITURES OF THE CITY OF DELRAY BEACH, FLORIDA, FOR THE FISCAL YEAR 2012/2013, BY SETTING FORTH THE ANTICIPATED REVENUES AND EXPENDITURES FOR THE OPERATING FUNDS OF THE CITY FOR THE FISCAL YEAR 2012 /2013; REPEALING ALL RESOLUTIONS INCONSISTENT HEREWITH. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AS FOLLOWS: Section 1. That Section 1 of Resolution No. 49 -12 adopted by the City Commission of the City of Delray Beach, Florida, on September 20, 2012, is hereby repealed, and a new Section 1 is enacted and amended to read as follows: That the following sums of money, attached hereto and marked Exhibit "A ", are hereby appropriated upon the terms and conditions herein set forth. Section 2. That, subject to the qualifications contained in this resolution, all appropriations made out of the General Fund are declared to be maximum, conditional and proportionate appropriations, the purpose being to make the appropriations payable in full in the amounts herein named if necessary and then only in the event the aggregate revenues collected and other resources available during the period commencing the 1s` day of October, 2012, and ending the 30ffi day of September, 2013, for which the appropriations are made, are sufficient to pay all the appropriations in full. Otherwise, said appropriations shall be deemed to be payable in such proportion as the total sum of realized revenue of the General Fund is to the total amount of revenues estimated by the City Commission to be available in the period commencing the 1s` day of October, 2012, and ending the 30`'' day of September, 2013. Section 3. That all balances of the appropriations payable out of the General Fund of the City Treasury unencumbered at the close of business on the 30'' day of September, 2012, except as otherwise provided for, are hereby declared to be lapsed into the City Treasury and may be used for the payment of the appropriations which may be made in any appropriation for the fiscal year commencing the 1s` day of October, 2012. However, nothing in this section shall be construed to be applicable to unencumbered balances remaining to the credit of the Water and Sewer Fund, Sanitation Fund or any Fund created by the setting up of special revenue, but such balances shall be used in financing the proposed expenditures of these Funds for the fiscal year commencing the 1s` day of October, 2012. Section 4. That no department, bureau, agency or individual receiving appropriations under the provisions of this resolution shall exceed the amount of its appropriation, except with the consent and approval of the City Commission first obtained. If such department, bureau, agency or individual shall exceed the amount of its appropriation without such consent and approval of the City Commission, the administrative officer or individual, in the discretion of the City Commission, may be deemed guilty of neglect of official duty and may be subject to removal therefor. Section 5. That nothing in this resolution shall be construed as authorizing any reduction to be made in the amounts appropriated in this resolution for the payment of interest on, or retirement of, the debt of the City of Delray Beach, Florida. Section 6. That none of the monies enumerated in this resolution in connection with the General Fund, Water and Sewer Fund, Sanitation Fund or any other Fund of the City shall be expended for any purposes other than those for which they are appropriated, and it shall be the duty of the Budget Officer and /or Finance Director to report known violations of this section to the City Manager. Section 7. That all monies collected by any department, bureau, agency or individual of the City government shall be paid promptly into the City Treasury. Section 8. That the foregoing budget is hereby adopted as the official budget of the City of Delray Beach, Florida, for the aforesaid period. However, the restrictions with respect to the expenditures /expenses of the funds appropriated shall apply only to the lump sum amounts for classes of expenditures /expenses which have been included in this resolution. Section 9. That public hearings were held on the tax levy and the budget on September 4, 2012, and September 20, 2012. ATTEST: City Clerk Section 10. That this resolution shall become effective immediately upon passage. PASSED AND ADOPTED in regular session on this the 4th day of June, 2013. MAYOR RES. NO. 30 -13 CASH BALANCES BROUGHT FORWARD ESTIMATED REVENUES: TAXES AD VALOREM TAXES AD VALOREM TAXES AD VALOREM - DELINQUENT AD VALOREM - DDA Sales & Use Taxes Utility Taxes Other Taxes Franchise, Licenses & Permits Intergovernmental Charges for Services Fines & Forfeitures Miscellaneous Revenues Other Financing Sources TOTAL REVENUES AND OTHER FINANCING SOURCES TOTAL ESTIMATED REVENUES AND BALANCES Exhibit A Budget Summary As Amended General Fund DOWNTOWN Amended DEVELOPMENT FY 12/13 FUND 1,826,844 SPECIAL ENTERPRISE REVENUE FUNDS FUNDS TOTAL 5,855,950 410,870 8,093,664 Millages 9,270,378 0 0 25,938 7.1992 42,530,160 0 0 0 42,530,160 0.6041 3,570,050 0 0 0 3,570,050 500,000 0 0 0 500,000 1.0000 0 494,566 0 0 494,566 1,310,000 0 0 0 1,310,000 5,150,000 0 0 0 5,150,000 4,390,000 0 0 0 4,390,000 8,859,370 0 800 0 8,860,170 6,746,185 0 402,750 1,872,328 9,021,263 10,286,425 0 42,451,570 0 52,737,995 1,097,500 0 0 116,500 1,214,000 5,951,979 85,000 67,840 133,340 6,238,159 4,355,550 0 103,000 1,307,675 5,766,225 3,840,713 94,747,219 579,566 43,025,960 3,429,843 141,782,588 96,574,063 579,566 48,881,910 3,840,713 149,876,252 General Government Services 9,270,378 0 0 25,938 9,296,316 Public Safety 53,397,042 0 0 125,500 53,522,542 Physical Environment 560,970 0 30,078,838 0 30,639,808 Transportation 3,323,542 0 0 0 3,323,542 Economic Environment 6,718,440 577,996 0 2,782,828 10,079,264 Human Services 59,750 0 0 0 59,750 Culture & Recreation 14,234,391 0 3,560,412 885,690 18,680,493 Debt Service 5,365,330 0 6,719,580 0 12,084,910 Other Financing Uses 3,592,780 0 7,642,890 0 11,235,670 TOTAL EXPENDITURES /EXPENSES 96,522,623 577,996 48,001,720 3,819,956 148,922,295 Reserves 51,440 1,570 880,190 20,757 953,957 TOTAL EXPENDITURES AND RESERVES 96,574,063 579,566 48,881,910 3,840,713 149,876,252 Budget Amendment Fiscal Year 2012 -2013 General Fund Expenditures The departmental adjustments overall total an increase of $375,819. A brief justification of departmental adjustments is as follows: General Government Services This category includes the legislative and administrative departments of the City and the miscellaneous division. The decrease in General Government expenditures totals $5. The Clean and Safe Division will be reduced by $5 to adjust the budget to the actual grant award from the CRA. Cultural and Recreation This function will increase $201,015 overall with all expenses related to the FED Cup match in the Tennis Stadium division. These expenses are offset with $116,925 in additional revenues and $84,090 from general fund prior year surplus. Public Safetv This category includes the Police and Fire Departments and Community Improvement. The increase in the Public Safety budget category equals $103,602. The total Police budget will increase $33,602. The Bulletproof Vest Grant accounts for $33,600 of this increase with half being funded by the grant and the other half a required City match. The remaining $2 is to balance the budget to the actual Justice Assistance Grant award. The Fire Department's budget increase of $70,000 is in an equipment account that is offset by a Palm Beach County EMS grant award. Phvsical Environment There will be no changes to this function. Transportation This category includes the Public Works Department. The department has four divisions, Streets, Traffic Operations, Parking, and Street Lighting. There is net departmental increase of $90,507. The Delray Beach Preservation Trust Neighborhood sign program was approved by City Commission on December 10, 2012 and $7,500 is being added to the Traffic Operations division for this program. The Parking Facilities division will increase $83,003 to roll forward an FDOT grant for the Tri Rail Trolley. The remaining $4 increase is in the Street Lighting division to match the budget with the actual grant for FDOT Master Street Lighting. Economic Environment There will be no changes to this function. Debt Service There will be no changes to this function. Transfers There will be no changes to this function. Budget Amendment Fiscal Year 2012 -2013 Reserves $19,300 currently in the Manager's Contingency was used to balance this amendment. Other Funds ARRA Economic Stimulus Fund This fund will decrease $7,725 overall. The remaining grant budgets will be rolled forward in the amount of $5,938 while encumbrances brought forward will be reduced by $13,663. Law Enforcement Trust Fund No changes or adjustment to this fund. Special Proiects Fund No changes or adjustment to this fund. Neighborhood Services Fund Fiscal Year 2011/12 balances for CDBG, Neighborhood Housing, SHIP, Hope III, and Curb Appeal programs were brought forward and NSP proceeds from the sale of properties were budgeted. The overall increase for this fund is $669,981. Beautification Trust Fund This fund will increase $10,000 overall to budget an FDOT grant for Atlantic Ave medians. Beach Restoration Fund This fund will increase $163,894 overall. Funding previously approved by the City Commission will be budgeted for dune repair from Hurricane Sandy in the amount of $170,694 and will be partially offset by a reduction in anticipated costs for Sea Turtle Monitoring. This additional funding is included in the beach renourishment note. General Construction Fund This fund will decrease $537,607 overall. Close outs are being finalized for the Auburn Ave project in the amount of $92,782. Grant budgets are being removed from Landscaping Beautification ($200,000) and Atlantic Ave median improvements ($294,829). Funds are being added to the Federal Highway Beautification Project ($4) to adjust the budget to the actual grant award and $50,000 is being added for the Fire Sprinkler project for the Fleet Maintenance Fire bays to be funded from surplus in the general construction fund. 2004 GO Bond No changes or adjustment to this fund. Citv Marina Fund No changes or adjustment to this fund. Budget Amendment Fiscal Year 2012 -2013 Sanitation Fund No changes or adjustment to this fund. Water and Sewer Fund This fund will increase by $254,600 overall. The transfer to the Water and Sewer Renewal and Replacement fund will be increasing by $854,600 of which $600,000 will be transferred from the current project reserve account and the additional $254,600 will come from surplus brought forward. Water and Sewer Renewal and Replacement Fund This fund will increase $811,502 overall. Decreases are being made to close out the Auburn Ave Water Main project ($29,043) and in an equipment account ($14,055) to adjust the budget to the actual South Florida Water Management District grant revenue. Increases are being made for the N Lake Ida area water main ($205,300) and NW 4th Ave and NW 3 d Ave water main ($299,300) projects to replenish funds that were transferred from these projects and $350,000 is being added to the Automated Meter Reading project to cover estimated installation costs of all required infrastructure system wide. Municipal Golf Course No changes or adjustments to this fund. Lakeview Golf Course No changes or adjustment to this fund. Storm water Utility Fund This fund will increase $380,000 overall. Funds are being added for drainage swale projects that need immediate attention ($100,000), other drainage related projects that were not addressed during the budget process ($50,000), unanticipated repairs to storm water pump stations ($75,000) and supplemental funding to the SE 2nd St from Swinton to SE 3 d Ave ($55,000) and NW 12th Ave from Atlantic Ave to MLK Blvd ($100,000) projects. This will be funded by surplus in the storm water utility fund. Garage Fund No changes or adjustment to this fund Insurance Fund No changes or adjustment to this fund. MEMORANDUM TO: Mayor and City Commissioners FROM: R. Brian Shutt, City Attorney DATE: May 23, 2013 SUBJECT: AGENDA ITEM 9.F. - REGULAR COMMISSION MEETING OF JUNE 4, 2013 REQUEST FOR HOURLY FEE INCREASE/ ALLEN NORTON & BLUE LAW FIRM ITEM BEFORE COMMISSION The item before the Commission is a requested hourly fee increase from the City's labor counsel from $210.00 per hour to $235.00 per hour. BACKGROUND The City Commission appointed the law firm of Allen Norton and Blue as the City's labor counsel to handle certain labor /employment issues at its October 12, 2010 Commission meeting. The firm has several clients in Palm Beach County, which include the cities of Boca Raton, Highland Beach, Palm Beach Gardens, Village of Royal Palm Beach and the Sherriff's Office. The increased fee of $235.00 per hour is at or below the hourly fee charged to the entities listed above. RECOMMENDATION Approve the fee increase. ALLEN NO RTO-IN.i BLUE 121 Majorca Avenue . Coral Gables, Florida 33134 Telephone 305- 445 -7801 e Facsimile 305- 442 -1578 May 1, 2013 Brian Shutt, City Attorney City of Delray Beach 200 NW 1 st Avenue Delray Beach, FL 33444 Re: Hourly Rate Dear Brian: We very much appreciate the opportunity to represent the City of Delray Beach. We undertook the representation of the City at a rate well below our normal rate for public sector clients, and have not requested any increase in our hourly rate in the 2 'h years we have represented the City. At this time, we request an increase of $25.00 per hour, which would bring the blended rate we charge to $235.00 per hour. We request that this rate increase be effective June 1, 2013. Please advise if this increase is acceptable. RLN /crk Sin Robert L. Norton Jacksonville . Miami . Orlando ■ Tallahassee e Tampa Affiliate of Worklaw' Network: The Nationwide Network of Management Labor and Employment Law Firms http://twitter.com/anblaw MEMORANDUM TO: Mayor and City Commissioners FROM: Louie Chapman, Jr., City Manager DATE: May 29, 2013 SUBJECT: AGENDA ITEM 10.A. - REGULAR COMMISSION MEETING OF JUNE 4, 2013 ORDINANCE NO. 10 -13 ITEM BEFORE COMMISSION This ordinance is before Commission for second reading to consider an amendment to Chapter 33, "Police and Fire- Rescue Departments ", Section 33.62, "Benefit Amounts and Eligibility ", and Section 33.64, "Contributions ". BACKGROUND At the first reading on May 7, 2013, the Commission passed Ordinance No. 10 -13. On May 21, 2013, the City Attorney requested that Ordinance No. 10 -13 be moved to the June 4, 2013 Public Hearings date certain. RECOMMENDATION Recommend approval of Ordinance No. 10 -13 on second and final reading. ORDINANCE NO. 10 -13 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AMENDING CHAPTER 33, "POLICE AND FIRE - RESCUE DEPARTMENTS "; AMENDING SECTION 33.62, `BENEFIT AMOUNTS AND ELIGIBILITY "; AMENDING SECTION, "33.64, "CONTRIBUTIONS "; PROVIDING A SAVING CLAUSE, A GENERAL REPEALER CLAUSE, AND AN EFFECTIVE DATE. BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AS FOLLOWS: Section 1. That Chapter 33, "Police and Fire - Rescue Departments ", Section 33.62, Benefit amounts and eligibility ", of the Code of Ordinances of the City of Delray Beach is hereby amended to read as follows: (B) Normal Retirement Benefit. (3) Optional Enhanced Multiplier. (a) Notwithstanding any provision of the System to the contrary, a member who is actively employed by the City on March 15, 2004, but who is not participating in the deferred retirement option plan (DROP), may elect a normal retirement benefit in the amount of three and one -half (3.5) percent of average monthly earnings for each year of continuous service if the member attains twenty (20) or more years of continuous service, subject to a maximum of eighty -seven and one -half (87.5) percent of average monthly earnings. Members electing this enhanced multiplier shall thereafter contribute three (3) percent of earnings to the Trust Fund in addition to the member contribution specified in Section 33.64(A), and shall receive the enhanced multiplier for all periods of continuous service. An election under this subparagraph must be on or before April 15, 2004. (b) Notwithstanding any provision of the System to the contrary, a member who is actively employed by the City on March 15, 2004, but does not elect the enhanced multiplier in accordance with subparagraph (a), above, and who is not participating in the deferred retirement option plan (DROP), may thereafter elect a normal retirement benefit in the amount of three and one -half (3.5) percent of average monthly earnings for all future continuous service after making such election if the member attains twenty (20) or more years of continuous service, subject to a maximum of eighty -seven and one -half (87.5) percent of average monthly earnings. Members electing this enhanced multiplier shall thereafter contribute three (3) percent of earnings to the I ORD. NO. 10 -13 Trust Fund in addition to the member contribution specified in Section 33.64(A). Such member may also elect to purchase the enhanced multiplier for some or all periods of continuous service prior to the date of the election, by paying the full actuarial cost of the enhanced multiplier, plus the full cost of any actuarial or other professional services required. (c) Notwithstanding any provision of the System to the contrary, a member who is hired after March 15, 2004 and before April 9, 2013, and who is not participating in the deferred retirement option plan (DROP) may elect a normal retirement benefit in the amount of three and one -half (3.5) percent of average monthly earnings for all future continuous service after making such election if the member attains twenty (20) or more years of continuous service, subject to a maximum of eighty -seven and one -half (87.5) percent of average monthly earnings. Members electing this enhanced multiplier shall thereafter contribute three (3) percent of earnings to the Trust Fund in addition to the member contribution specified in Section 33.64(A). Such member may also elect to purchase the enhanced multiplier for some or all periods of continuous service prior to the date of the election, by paying the full actuarial cost of the enhanced multiplier, plus the full cost of any actuarial or other professional services required. Members hired on or after April 9, 2013 shall not be eligible for the optional enhanced multiplier provided in this paragraph (d) The election to receive the enhanced multiplier under this paragraph must be made in writing on a form provided by the City. Such election shall be irrevocable. If an eligible member does not elect an optional enhanced multiplier under this paragraph, or if an eligible member elects the enhanced multiplier for only a portion of his total continuous service, then the benefit provided in paragraph (2) shall be used to calculate the benefit for all continuous service to which the enhanced multiplier does not apply. If an eligible member elects the enhanced multiplier and attains more than ten (10) but less than twenty (20) years of continuous service, the member's benefit shall be determined in accordance with paragraph (2), and the member shall receive a refund of all additional contributions and amounts paid for the enhanced multiplier, without interest. In no event shall a member's total benefit be less than two (2) percent of average monthly earnings for each year of continuous service. Section 2. That Chapter 33, "Police and Fire - Rescue Departments ", Section 33.64, "Contributions ", of the Code of Ordinances of the City of Delray Beach is hereby amended to read as follows: Sec. 33.64. - CONTRIBUTIONS. (A) Member Contributions. (1) Effective the first pay period after September 1, 1999, members of the retirement system shall make regular contributions to the Trust Fund at a rate equal to three (3) percent of their respective annual earnings. Eligible employees, as a condition of membership, shall agree in writing upon becoming a member to make the contribution specified herein. These contributions shall be deducted from the earnings before the same are paid, until the member has completed twenty -five (25) years of continuous service at which time member 2 ORD. NO. 10 -13 contributions are no longer required (2) Effective the first pay period starting after May 3, 2011, members of the retirement system employed as firefighters shall make regular contributions to the Trust Fund at a rate equal to six (6) percent of their respective annual earnings. Eligible employees, as a condition of membership, shall agree in writing upon becoming a member to make the contribution specified herein. These contributions shall be deducted from the earnings before the same are paid, until the member has completed twenty -five (25) years of continuous service at which time member contributions are no longer required. (3) Effective the first pay period starting after October 4, 2011, members of the retirement system employed as police officers shall make regular contributions to the Trust Fund at a rate equal to six (6) percent of their respective annual earnings. Eligible employees, as a condition of membership, shall agree in writing upon becoming a member to make the contribution specified herein. These contributions shall be deducted from the earnings before the same are paid, until the member has completed twenty -five (25) years of continuous service at which time member contributions are no longer required. (4) Notwithstanding any other provision of this section 34.64, members of the retirement system hired on or after April 9, 2013 shall make regular contributions to the Trust Fund at a rate equal to nine (9) percent of their respective annual earnings. Eligible employees, as a condition of membership, shall agree in writing upon becoming a member to make the contribution specified herein. These contributions shall be deducted from the earnings before the same are paid, until the member has completed twenty -five 25) years of continuous service at which time member contributions are no longer required. The City shall pick up the member contribution required by subsections (A)(1), (A)(2)z (A)(3) and A)(4) above. The contributions so picked up shall be treated as employer contributions in determining tax treatment under the United States Internal Revenue Code. The City shall pick up the member contributions from funds established and available in the salaries account, which funds would have otherwise been designated as member contributions and paid to the pension fund. Member contributions picked up by the City pursuant to this subdivision shall be treated for purposes of making a refund of member contributions, and for all other purposes of this and other laws, in the same manner and to the same extent as member contributions made prior to the effective date of this subdivision. The intent of this subdivision is to comply with Section 414(h)(2) of the Internal Revenue Code. Section 3. 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 4. That all ordinances or parts of ordinances in conflict herewith be, and the same are hereby repealed. 3 ORD. NO. 10 -13 Section 5. That this ordinance shall become effective immediately upon passage on second and final reading. PASSED AND ADOPTED in regular session on second and final reading on this the _ day of , 2013. MAYOR ATTEST: City Clerk First Readi Second Reading 4 ORD. NO. 10 -13 Coversheet MEMORANDUM TO: Mayor and City Commissioners FROM: Louie Chapman, Jr., City Manager DATE: May 13, 2013 SUBJECT: AGENDA ITEM 10.A. - REGULAR COMMISSION MEETING OF MAY 21, 2013 ORDINANCE NO. 10 -13 ITEM BEFORE COMMISSION Page 1 of 1 This ordinance is before Commission for second reading for an ordinance amending Chapter 33, "Police and Fire - Rescue Departments ", Section 33.62, `Benefit Amounts and Eligibility ", and Section 33.64, "Contributions ". BACKGROUND At the first reading on May 7, 2013, the Commission passed Ordinance No. 10 -13. RECOMMENDATION Recommend approval of Ordinance No. 10 -13 on second and final reading. http:// itwebapp / Agendalntranet /Bluesheet.aspx ?ItemID =6791 &MeetingID =449 5/29/2013 Coversheet MEMORANDUM TO: Mayor and City Commissioners FROM: R. Brian Shutt, City Attorney DATE: May 2, 2013 SUBJECT: AGENDA ITEM 11.A. - REGULAR COMMISSION MEETING OF MAY 7, 2013 ORDINANCE NO. 10 -13 ITEM BEFORE COMMISSION Page 1 of 1 The item before the City Commission is Ordinance No. 10 -13 which provides for modifications to the Police /Fire Pension Ordinance. BACKGROUND This Ordinance provides that persons hired as police officers or firefighters after April 9, 2013 would not be eligible for the optional enhanced multiplier, where it would raise the pension multiplier from 3% after 20 years to 3.5 %. The Ordinance also provides that the contribution rate for police officers and firefighters, hired after April 9, 2013, shall be 9 %. Currently the contribution rate is 6% for those employees who are not seeking the optional enhanced multiplier. RECOMMENDATION Approve Ordinance 10 -13. http: // agendas. mydelraybeach .com /Bluesheet.aspx ?ItemID= 6756 &MeetingID =447 5/29/2013 FOSTER & FOSTER May 31, 2013 Ms. Anne Woods City of Delray Beach 609 Homewood Boulevard Delray Beach, FL 33445 Re: City of Delray Beach Police Officers' and Firefighters' Retirement Plan Dear Anne: We have reviewed the recently proposed Ordinance 10 -13 amending the plan to render members hired after April 9, 2013 ineligible for the optional enhanced multiplier and to set the contribution rate for these members at 9% of pensionable compensation. As the proposed changes pertain to members hired after the valuation date, the impact of these changes is not currently measureable, and therefore does not result in an immediate change to the Plan's funding requirements. Because these proposed changes do not result in a change in the valuation results, it is our opinion that a formal Actuarial Impact Statement is not required in support of their adoption. However, since the Division of Retirement must be aware of the current provisions of all public pension programs, we recommend that you send a copy of this letter and a copy of the fully executed Ordinance to each of the following offices: Mr. Keith Brinkman Bureau of Local Retirement Systems Division of Retirement P. O. Box 9000 Tallahassee, FL 32315 -9000 If you have any questions, please let me know. Sincerely, Bradley R. Heinrichs, FSA, EA, MAAA Patricia Shoemaker Municipal Police and Fire Pension Trust Funds Division of Retirement P.O. Box 3010 Tallahassee, FL 32315 -3010 13420 Parker Commons Blvd., Suite 104 Fort Myers, FL 33912 (239) 433 -5500 • Fax (239) 481 -0634 • www.foster- foster.com MEMORANDUM TO: Mayor and City Commissioners FROM: R. Brian Shutt, City Attorney DATE: May 23, 2013 SUBJECT: AGENDA ITEM 11.A. - REGULAR COMMISSION MEETING OF JUNE 4, 2013 ORDINANCE NO. 11 -13 ITEM BEFORE COMMISSION Approval of Ordinance No. 11 -13, to allow the General Employee's Pension Board to make changes in its investment policy without approval by the City Commission. BACKGROUND Currently, anytime the General Employee's Pension Board wishes to change their investment policies, before the change is effective, the City Commission must approve the change. In certain circumstances the extra step of having the Commission approve the change to the investment policy may create a delay that could be detrimental to the plan or it may require a special meeting of the Commission if immediate action is needed. RECOMMENDATION Staff recommends approval of the proposed changes on first reading. ORDINANCE NO. 11 -13 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AMENDING CHAPTER 35, "EMPLOYEE POLICIES AND BENEFITS ", SECTION, "35.105, "ADMINISTRATION BY RETIREMENT COMMITTEE ", SUBSECTION (C) "ACTION BY COMMITTEE ", TO REMOVE THE REQUIREMENT THAT THE CITY COMMISSION MUST APPROVE CHANGES TO THE INVESTMENT POLICY AS ADOPTED BY THE COMMITTEE; PROVIDING A SAVING CLAUSE, A GENERAL, REPEALER CLAUSE, AND AN EFFECTIVE DATE. WHEREAS, the Retirement Committee periodically wishes to make changes to its written investment policy in order to address market conditions; and WHEREAS, pursuant to the City's ordinances the City Commission must approve any changes to the investment policy; and WHEREAS, in order to make this a more efficient process, the Committee has requested that the requirement for City Commission approval be removed from the Ordinance. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AS FOLLOWS: Section 1. That Chapter 35, "Employee Policies and Benefits ", Section 35.105, "Administration by Retirement Committee ", Subsection (C) "Action by Committee ", of the Code of Ordinances of the City of Delray Beach is hereby amended to read as follows: (C) Action by Committee. (1) A majority of the members of the Committee shall constitute a quorum for the transaction of business and shall have full power to act hereunder. (2) Committee meetings shall be noticed and open to the public. Meetings shall be conducted in accordance with rules adopted by the Committee, or by Robert's Rules of Order if the Committee has not adopted rules. Minutes of all meetings of the Committee and a record of any action taken by the Committee shall be kept in written form and such record shall be kept by the secretary appointed by the Committee. Official Committee action shall be by majority vote of a quorum of the Committee. (3) The Committee may invest and reinvest the assets of the Retirement Trust Fund in any investment in which assets of the Florida Retirement System may be invested pursuant to F.S. Section 215.47, as that statute may be amended from time to time, or in accordance with written investment policies adopted by the Committee The Committee may retain such professional consultants, advisors and investment managers as it deems advisable to carry out its responsibilities under this Section. (4) A member of the Committee may not vote or decide upon any matter relating solely to that member, or vote in any case in which the member's individual right or claim to any benefit under the plan is involved. If a Committee member is required to abstain and the remaining members of the Committee are unable to decide the matter, the City Commission may appoint a temporary substitute member to the Committee. 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 the day of 2013. ATTEST: City Clerk First Reading Second Reading MAYOR 2 ORD. NO. 11 -13