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06-18-13 Regular Meeting MinutesJUNE 18, 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, June 18, 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 Reverend Ron Arflin with Abbey Delray South. 3. The Pledge of Allegiance to the flag of the United States of America was given. 4. APPROVAL OF MINUTES: Mrs. Petrolia moved to approve the Minutes of the Workshop Meeting of May 14, 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. Mrs. Gray moved to approve the Minutes of the Regular Meeting of June 4, 2013, seconded by Mrs. Petrolia. 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. 5. PRESENTATIONS: S.A. Honoring posthumously Bruce John Koeser Human Resource Director, for his dedicated service to the City of Delray Beach and the communitX Mayor Glickstein read and presented a proclamation hereby extending our heartfelt thanks and appreciation posthumously to Bruce John Koeser and call upon all present to acknowledge and applaud his outstanding and exemplary dedication to the City 06/18/13 of Delray Beach, its employees and its residents. Linda Koeser came forward to accept the proclamation 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. Alice Finst 707 Place Tavant Delray Beach FL 33445 commented about the emergency radio station 1620 which is supposed to be using for emergency circumstances heard all over the city when there is an emergency. Mrs. Finst stated she lives west of Congress Avenue and it does not usually kick in until she gets to Spady School coming down Lake Ida Road and tonight it did not kick in at all. She stated hurricane season is upon us and suggested that if the city relies on that as an emergency resource it be fixed. 6.B.2. Sue Ann Lew, 603 Lakewood Circle West, Delray Beach, FL 33445, commented about the Seagate HHC application to rezone a tract of land behind her home from open space to open space recreational. She stated the consideration of the application was postponed at the Planning and Zoning Board meeting last night. Mrs. Levy stated as a lack of information provided to residents by Seagate and the homeowners association the opposition is growing every day within the Hamlet community. She stated they first found out about the Seagate's plans to renovate the golf course and create a massive facility behind their home in late April. Ms. Levy stated the information came today as a fellow resident bumped into a former employee of the country club at a gas station. She stated to this date they have never been advised of the changes by the Seagate and have not seen any drawings even though they live within 500 feet of the area proposed for this facility. Mrs. Levy stated the parcel was zoned open space under an ordinance passed by planners and City Commission in 1994 to keep it a nature preserve. 6.B.3. Denise Alexander, 603 Lakewood Circle West, Delray Beach, FL 33445, stated she specifically bought her home for the view and the peacefidness of the trees, birds, etc. Ms. Alexander stated she would have never bought a house that backs onto a golf course because what she wanted was privacy and peace and quiet. She stated in 1994 the City Commission talked about environmental impact, protecting the boundaries of neighboring properties and the OS being the proper designation not OSR and that it stay a passive area. Ms. Alexander stated the mature trees are about 64 inches in diameter each. She stated there are already two practice areas that the Seagate has and suggested if they need a third area it can be properly located where the other two are where food and bathrooms are available for people. Ms. Alexander asked if the residents 2 06/18/13 are going to have bathrooms, concession stands, etc. in their backyards. She stated the character of their community is a Hamlet; it is open space and there are no sidewalks. 6.B.4. Gloria Hulnick, 604 Lakewood Circle West, Delray Beach, FL 33445 lived at the Seagate Country Club for 21 vears), stated they are very distressed with the plans that Seagate Country Club is making renovations for the golf course. Mrs. Hulnick stated the main reason she and her husband bought their home is to enjoy the beauty and tranquility of the space in the back of their home and noted they paid an additional $7,000 for this piece of property. She expressed concern over the Seagate's plans to take down trees; there are nesting grounds for many native. birds as well as wild life. Mrs. Hulnick stated this proposal will destroy everyone and she urged the Commission to.do whatever they can to make sure that does not happen. 6.B.5. Mark Kaye, 7145 Huntington Lane, Delray Beach, FL 33446, thanked Mayor Glickstein for responding so quickly to his email. Mr. Kaye stated he has been a resident of Delray Beach for 18 months having relocated from New York City. He stated it is his morning ritual to ride his bike 30 miles a day on his bike along Jog Road and during those 30 miles during the school year he sees hundreds of children riding their bicycles to school and 95% of them are not wearing bicycle helmets. He stated for many years he worked as a paramedic mostly in level 1 trauma units in emergency rooms and has seen first -hand the devastations without bicycle helmets can cause. Mr. Kaye stated he has had conversations with crossing guards and they have confirmed that there is no compliance whatsoever with regard to the bicycle helmet law. Mr. Kaye stated Florida Statutes since 1994 in Florida stipulates every person under 16 years old must wear a bicycle helmet and is a difficult statute to enforce. He stated as a community we need to do better and distributed information to the Commission to consider getting some initiative started to keep our children safe. 6.B.6. Peter Sachs, Managing Partner with Sachs, Sag Caplan, 6111 Broken Sound Parkway NW Boca Raton FL 33487 registered representatives of Waste Management (City's vendor for many years) and stated under Item 9.B. the Commission is going to have a discussion of a report the Commission will receive. Mr. Sachs stated the following: (1) in all the discussions that Waste Management and the City has had that there has ever been a complaint about the services that Waste Management provides to the city both under the contract and its good neighboring partner in all the city and community events that occur in Delray Beach, (2) Waste Management took under certain responsibilities under the contract and have fulfilled each and every responsibility to date and continue to do so, (3) on behalf of Sachs, Sax Caplan they have examined the report and contract and in their opinion the contract is valid and enforceable. 6.B.7. Pauline Moody, 609 S.W. 8th Avenue, Delray Beach, FL 33445, asked how many law firms did the City hire to approve the Police and Fire Actuarial Agreement. Ms. Moody inquired about the status of the Police and Fire Actuarial Agreement and who is going to pay for these law firms to do that. 3 06/18/13 Secondly, Ms. Moody inquired about Waste Management and asked if the City is going to appoint another outside counsel to go over the report. She commented about all the different law firms the City has hired to work on certain issues but someone has to pay for it. 7. AGENDA APPROVAL. The City Manager requested to add Item 8.S., Approval to re -oven Delray Beach Swim and Tennis Pool Facility. Mrs. Petrolia moved to approve the 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. 8. CONSENT AGENDA: City Manager Recommends Approval. 8.A. RIGHT -OF -WAY DEED/ COMMUNITY REDEVELOPMENT AGENCY (CRA): Approve and accept a sidewalk easement and right -of -way deed for the Community Redevelopment Agency office located at 20 North Swinton Avenue. S.B. ACCEPTANCE OF A WATER EASEMENT DEED/ LA FITNESS: Approve and accept a water easement deed for the installation of a new water and fire service line at LA Fitness located at 1668 South Federal Highway. 8.C. ACCEPTANCE OF A WATER EASEMENT DEED/BANYAN CREEK ELEMENTARY: Approve and accept a water casement deed for a fire service extension at Banyan Creek Elementary located at 4243 Sabal Lakes Road. 8.D. ADDITIONAL SCOPE /LANZO CONSTRUCTION COMPANY: Approve additional scope for the installation of additional water services by Lanzo Construction Company in the amount of $25,250.00 for the Reclaimed Water, Area 12A Project. Funding will be provided by the contract's Undefined Underground Allowance. 8.E. HOLD HARMLESS AGREEMENTS /THE HANNAH BUILDING: Approve Hold Harmless Agreements for building encroachments (canopy, overhangs, wing walls, doors, entry gate and column) into the right -of -way for The Hannah Building (f/k/a Mercer Wenzel) for the property located at 401 East Atlantic Avenue. 8.F. AMENDMENT NO. 1 (CHANGE ORDER NO. l) /PROLIME CORPORATION: Approve Amendment 1 (Change Order No. 1) to Prolime Corporation in the amount of $35,000 for disposal of wet lime sludge from the Water Treatment Plant. Funding is available from 441 - 5122 -536 -34.90 (Water and Sewer Fund: Other Contractual Services). 4 06/18/13 S.G. HOUSING REHABILITATION GRANT /CONTRACT AWARD FOR 513 S.W. 15TH AVENUE: Award one (1) Housing Rehabilitation contract through the Neighborhood Stabilization Program (NSP) to the lowest responsive bidder, C J Contracting, LLC. for 513 S.W. 15th Avenue in the amount of $31,941.00. Funding is available from 118 - 1935 - 554 -62.12 (Neighborhood Services: Other Current Charges/Housing Rehabilitation). 8.11. HOUSING REHABILITATION GRANT /CONTRACT AWARD FOR 808 S.W. 3 COURT: Award one (1) Housing Rehabilitation contract through the Neighborhood Stabilization Program (NSP) to the lowest responsive bidder, C J Contracting, LLC. for 808 S.W. 3rd Court in the amount of $26,775.00. Funding is available from 118- 1935 - 554 -62.12 (Neighborhood Services: Other Current Charges/Housing Rehabilitation). 8_I. LANDSCAPE MAINTENANCE AGREEMENT /2475 SUNDY AVENUE: Approve the Landscape Maintenance Agreement between the property owner at 2475 Sundy Avenue and the City for landscape installation within the right -of- way of SW 8th Avenue. 8_J. MODIFICATION #4 TO SUBGRANT AGREEMENT/ NEIGHBORHOOD STABILIZATION PROGRAM (NSP): Approve Modification 44 to the Neighborhood Stabilization Program (NSP) Subgrant Agreement to extend the contract date to December 31, 2013. 8.K. INTERLOCAL AGREEMENT /COMMUNITY REDEVELOPMENT AGENCY (CRA)/MICROENTERPRISE PROGRAM: Approve an Interlocal Agreement with the Community Redevelopment Agency (CRA) to establish the Delray Beach MicroEnterprise Program and adopt the Program Guidelines for the CRA and City Non -CDBG MicroEnterprise Loan Fund. Funding is available from 001 -1212- 559 -49.59 (General Fund: Other Current Charges /Micro Lending) and 118- 1966 -554 -83.01 (Neighborhood Services: Other Grants and Aids). 8.L. REJECTION OF PROPOSALS/FIRE HEADQUARTERS PUBLIC PLAZA ARTWORK PROJECT: Approve a recommendation to reject all proposals received from the Fire Headquarters Public Plaza Artwork Project Call to Artists and authorize staff to issue a new Call to Artists. 8.M. RENEWAL AGREEMENTIHEALTH CAREER INSTITUTE CI : Approve a renewal agreement with Health Career Institute (HCI) for the City to provide a clinical training site for EMT and paramedic students. S.N. PROPOSED AGREEMENT /GABRIEL ROEDER SMITH & COMPANY (GRS): Approve a proposed agreement with Gabriel Roeder Smith & Company (GRS) for actuarial consulting services regarding the Police and Fire Pension Plan. 5 06/18/13 S.O. REVIEW AND ACCEPTANCE OF REGULARLY SCHEDULED CITY COMMISSION MEETING DATES: Approve alternate dates for the regularly scheduled meetings in July. 8.P. PROCLAMATIONS: 1. Parks and Recreation Month — July 2013 80. REVIEW OF APPEALABLE LAND DEVELOPMENT BOARD ACTIONS: Accept the actions and decisions made by the Land Development Boards for the period June 3, 2013 through June 14, 2013. 8.11. AWARD OF BIDS AND CONTRACTS: 1. Bid award to Pro Courts in the amount of $52,904 for the resurfacing of twenty four (24) clay courts at the Swim and Tennis Club and relining eight (8) clay courts at the Tennis Center. Funding is available from 334 - 4145 -572 -4690 (General Construction Fund: Repair & Maintenance Services /Other Repair /Maintenance Costs). 2. Purchase award BoundTree Medical for six (6) recertified Zoll E Series 12 -Lead EKG Cardiac Monitor /Defibrillators with one (1) year warranty. Funding is available from 334 - 2311 -522 -64.90 (General Construction Fund: Machinery/ Equipment/ Other Machinery/ Equipment). 3. Purchase award to AG- Tronix in the amount of $22,609.50 for four (4) Computerized Irrigation Systems to be installed at Robert P. Miller Park's Little Fenway and Sergio baseball fields, Merritt Park, and Fire Station #5. Funding is available from 119 -4151 - 572 -64.90 (Beautification Trust Fund: Machinery /Equipment/Other Machinery/ Equipment). Mrs. Gray moved to approve the Consent 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. 9. REGULAR AGENDA: 9.A. AMENDMENT NO. 1 TO THE CONTRACT FOR SERVICES /BALLARD PARTNERS, INC.: Consider approval of Amendment No. 1 to the Contract for Services with Ballard Partners, Inc. to extend the term of the current agreement through June 30, 2014 for the state lobbying contract. The City Attorney stated last year the City engaged Ballard Partners, Inc. through Joe MCMann who did lobbying for the City on behalf of the sober house issue at 6 06/18/13 the state level. Mr. Jacquet stated he understands the City did not get the piece of legislation passed; however, Mr. Jacquet asked if the City was able to get some administrative things accomplished. Brief discussion between Mr. Jacquet and the City Attorney followed regarding what the City actually accomplished. Mr. Jacquet asked if there is any increase in cost. The City Attorney stated there is no increase in cost. Mrs. Petrolia asked the City Attorney to review the goal of what the City is having the lobbying firm do for us. The City Attorney stated what the City would like the lobbying firm for to do is to speak with DCF representatives and have DCF be more amenable to some of the changes that the City would like to see made in State law as far as providing for the ability of the State to regulate sober homes. The City Attorney stated when legislature is in session they will meet with the individual legislators and this is why staff is trying to get this amendment in place now because there is a lot of work that has to . be done to try to get this accomplished before the October 1, 2013 deadline or "proviso" for DCF to get information back to the legislator. The City Attorney stated when the City initially engaged this law firm they talked to 3 or 4 other law firms as well and the Commission selected this law firm. At this point, the City Attorney stated he is looking at this as a personal services contract because of all of the contacts that Joe McCann has made with DCF- where they contact him and he contacts the City. The City Attorney stated if we try to change that at this point we would be starting over. Mrs. Petrolia stated this is going to be a two -fold problem and she feels it is going to be this part of the deal but that we also have to focus on how we can get more people on the street through Code Enforcement or Police officers in order to work on the issue of the sober houses. Mrs. Gray commented about the enforcement of the sober houses and asked if there enough staff in place to work on this issue to make sure these houses are in compliance. The City Manager stated until it hits a neighborhood it ends up falling below the radar in many regards. He stated some of them go through it asking for reasonable accommodations when they end up asking for the conversion of a unit from single family to something else. The City Manager stated a three bedroom house under reasonable accommodation is requested to service six (6) unrelated adults so they do not have to go through the same process that an individual would have to go through if they were to rent their house. He stated it has become a very voluminous issue for the City. The City Manager stated the City has estimated that the inventory of sober houses is approximately 500 houses but cannot say that this is an absolute correct number. Mrs. Gray supports Amendment No. 1 to the Contract for Services with Ballard Partners. 7 06/18/13 Mr. Frankel stated Ballard Partners, Inc. has done a great job and supports this. Mr. Frankel suggested hiring Marc Woods full-time and have him train people. Mayor Glickstein stated his conversations with Joe McCann have been productive and feels there are clear benefits to keeping that momentum going with the same contacts. Mayor Glickstein stated although the City did not achieve what they were hoping to there was some progress. However, Mayor Glickstein expressed concern over the methodology of this contract and stated if staff is categorizing this as a personal services contract he needs some definitive clarification of that. Mayor Glickstein stated there are clear benefits to keeping Mr. McCann on this case but feels the City needs to be consistent. The City Attorney suggested that the City go out to bid and see what comes back. Mayor Glickstein asked if there is an expedited way to accomplish that. The City Attorney suggested that staff request quotes and when the quotes come back in that staff present to the City Commission at their regular meeting on July 9, 2013. Mayor Glickstein asked what has been paid to date. The City Attorney stated he believes Ballard Partners, Inc. has been paid $15,000. Mr. Jacquet inquired about this being a personal services contract. Mr. Frankel asked what the difference is between this and the hiring of the Weiss Scrota law firm which is the next issue because that firm was selected and it was not put out to bid for the legal work on that issue. The City Attorney stated the City wants to try to be consistent and go with someone that we are well aware of their qualifications. The City Attorney stated with regard to the lobbying firms it is a little bit different and when the City hired Mr. McCann it was based on the fact that the City solicited quotes. The City needs clarification in the purchasing code to help address some of these things that maybe we can spell it out a little clearer. The City Attorney stated the personal services are open to interpretation. He stated the past practice the City has had very rarely has the City solicited quotes; however, when the City selected outside labor counsel the City did solicit quotes from 2 -3 law firms that were very well known and whatever decision the Commission made on that would have been acceptable. In his opinion, Mr. Frankel stated it is important to be consistent. Mayor Glickstein stated there is urgency to this and feels it can be clarified in the purchasing ordinance with regard to what is considered personal services and what is not personal services. He stated the City needs to be conservative and does not see where three weeks is going to put the City in that much of a disadvantage. Mayor Glickstein stated part of that discussion on whom the City uses is how they performed in the past. He stated Mr. McCann has done a great job and support him continuing. The City Attorney stated staff will start the process and get this back to the Commission. It was the consensus of the Commission to direct staff to obtain quotes and bring back to the City Commission at their regular meeting of July 9, 2013. 8 06/18/13 9.B. DISCUSSION OF REPORT AND POSSIBLE APPOINTMENT OF WEISS SEROTA HELFMAN PASTORIZA COLE & BONISKE REGARDING WASTE MANAGEMENT AGREEMENT Jamie Cole, Weiss Serota Helfman Pastoriza Cole & Boniske. P.L., Attorneys at Law, 200 East Broward Boulevard, Suite #1900, Fort Lauderdale, FL 33401, stated they looked at this project to try to see if there was any way to defend what the City did more than to try and find a violation. Mr. Cole stated they reviewed the Purchasing ordinance and policies which require bidding for $15,000 and up. Mr. Cole stated they did conclude as did the Inspector General (IG) that this was something that did need to be bid. Mrs. Petrolia asked what was the likelihood that the City would prevail in a declaratory judgment. Mr. Cole stated he can never guarantee a victory and stated the law is very clear in that if you violate the purchasing code the contract is void. He stated there is also a chance that the court could void the contract but decide that the City needs to continue with it nevertheless that the City has waived their ability to cancel the contract. Mr. Cole stated it is the job of the Circuit Court Judge to make that decision. Mrs. Petrolia asked if Waste Management could sue after a declaratory judgment is determined. Mr. Cole stated once they have their lawsuit parties need to bring any claims that they have as part of that lawsuit. Mr. Cole stated the City of Delray Beach would be the plaintiff and Waste Management would be the defendant and any claims arising from the same transaction are required to be brought in the same lawsuit. Mr. Cole stated the Court could determine that Amendment 5 as a whole is void and the City would have to revert to the status quo before that Amendment. Mr. Cole stated most likely if the City had been paying less on those bus stop shelters the City would have to pay the difference that they would had to pay. Mr. Cole stated with respect to the solar powered compactors they would revert back to Waste Management and the City would not be able to keep them because the City cannot void the contract and take the benefit of the contract. Furthermore, Mr. Cole stated the City's expectation would be that they would have to give the solar powered compactors back to Waste Management. Mr. Frankel stated he read Mr. Cole's memo and asked him how much it has cost the City for the legal work that he has done so far. Mr. Cole stated it is hourly and he does not know how many hours they have spent. Mr. Frankel inquired about the potential cost of litigating this lawsuit. Mr. Cole stated it depends on Waste Management and how they choose to defend it. Mr. Cole stated based on their analysis and the Inspector General's analysis they could go through a competitive process and it would cost very little; however, if Waste Management chooses to fight it and devote substantial resources and hire very expensive law firms it could be very expensive. Mr. Frankel asked if they distinguish the cases in the memo from the situation at hand. Mr. Cole stated you can always distinguish a case but the question is can you do a distinction that makes a difference. Mr. Cole stated based on the policy on competitive bidding in Florida, based on the cases as to void contracts, and other cases they have cited in the E 06/18/13 memo, they believe their position is very strong. Mr. Frankel stated in Mr. Cole's memorandum it explains what is going on with Waste Management and the contract; in a similar fashion as a contract to repair city streets where the City is actually spending money to perform these services to a contractor and asked if this is a different situation. Mr. Cole stated the City is spending money and writing a check to Waste Management for services; they do collect money also from the residents if the residents pay. However, Mr. Cole stated if the residents do not pay the City pays nevertheless. Therefore, the pass - through concept does not apply; however, if this was a situation where the City was just giving a franchise to Waste Management and they could go to the residents and enter into contracts and the residents would pay them directly and the City had nothing to do with it then that would not cost the City any money and it would trigger the City's procurement code. Mr. Cole stated this however does because the City is writing a check. Mr. Cole stated he represents many cities and cities routinely bid out these types of contracts and has never seen a city take the position that they do not have to bid out a waste hauling contract because it is a pass - through. Mr. Cole stated he has seen cities that have provisions in their purchasing codes that allow them to waive competitive bidding but the City of Delray Beach does not have that so the City of Delray Beach is required to follow its code and therefore tie city had to bid this out. Mr. Cole stated he has represented four municipalities in a lawsuit against a subsidiary of Waste Management. Mr. Jacquet stated with regard to the four municipalities that Mr. Cole represented and the one that went on for years he asked if what was recovered was more than what was spent. Mr. Cole stated they recovered approximately $635,000 and legal fees were less than that but they also got out of a long -term contract; the goal of the lawsuit was to get out of a long -term contract. Mr. Jacquet made reference to the City Code Section 36.02 where it states "whenever the City shall seek to acquire contractual services it shall implement these rules." Mr. Jacquet also made reference to Section D "for acquisitions of $15,000 and up" and commented about the definition of "acquisition". He asked how the Court will look at this subsection and say that the City violated it if it can be argued that there was no acquisition. Mr. Cole stated looking at the course of history of the city and the only real reasonable interpretation of this provision for acquisition is when you are acquiring goods or services in excess of $15,000. Mr. Jacquet asked if the Court cases speak of whether a check is written from the General Fund and when the City writes that check where does it come from. Mr. Jacquet stated in none of the case law does it identify that the check must be written from the General Fund in order for it to apply. Mr. Cole stated he has never seen any case law that says that; theoretically the City could have the Code say that it only applies to the General Fund then there would be an argument but the City's Code does not say that; the City's Code talks about any acquisitions by the City in any of the funds; it does not limit it to any particular fund. Mr. Frankel stated this was voted on several months ago and asked why the City has not been sued by a competitor, resident, or anyone regarding this. Mr. Cole stated he does not know why no one else has challenged this. 10 06/18/13 Mrs. Gray asked for clarification on the franchise fees being passed on to the residents. The City Attorney stated there is an Exhibit to the bid and stressed that the City may be going towards litigation and if the Commission wants to speak with Mr. Cole one -on -one he strongly urges them to do that. However, the City Attorney stated on the franchise fees there is an Exhibit that says the franchise fee is paid by the residents and there is language in the initial 2001 agreement that says the contractor shall pay contract fees and the administrative fees. The City Attorney stated this is not to take away any rights that the City may have if we want to challenge anything but it is the set- up of it. Mrs. Gray briefly spoke about the City Attorney's opinion and the former City Manager's recommendation. Mrs. Gray stated Waste Management has provided excellent service to the City, our residents, and business owners and staff provided the Commission with a cross comparison study and we are saving revenues for our residents with the curbside costs and multi - family cost. Mrs. Gray stated she supports following the recommendation to seek the Declaratory Judgment. Mrs. Gray stated the City would save $1.7 million over the life of this contract and stated she did vote for the Waste Management contract. Mayor Glickstein stated the metric of how much this is going to cost is an important questions because it is taxpayer money; however, the flip side to that is to restore public trust in City Hall which he feels was fractured by this decision. He stated whether or not there are any substantial cost savings is less important than the integrity of the process. Mr. Cole stated under Florida Statutes Declaratory Judgment actions are supposed to be expedited. He stated how long it takes depends on how much discovery there is and how limited the issues are. For example, Mr. Cole stated if the City wants to raise the issue of franchise fee or has other claims that would expand this lawsuit and this scope. The City Attorney emphasized that the City needs to make changes to the Purchasing guidelines. Mayor Glickstein clarified that the City Attorney's suggestion to speak directly to Mr. Cole individually is after the Commission makes a recommendation to proceed or not proceed. Brief discussion between Commissioner Gray and the City Manager ensued. Mrs. Gray expressed concern over what this is going to cost the City. Mayor Glickstein stated as Mr. Chapman and Mr. Cole said they cannot determine these costs in advance and if the Commission goes this direction it is part of the collateral damage of when bad decisions are made for the wrong reasons. Mayor Glickstein suggested that the City move forward with this and it is about restoring public trust. Mayor Glickstein clarified that this is not a franchise; FPL is a franchise and they bill the City's customers and they are paid; the City of Delray Beach is not involved other than getting a franchise fee from FPL and the same goes for Comcast and other utility providers. Mayor Glickstein suggested that the City move forward with this and reiterated that this is about restoring public trust. 11 06/18/13 Mrs. Petrolia commented about the indemnification clause where Waste Management indemnifies the City for any legal action coming against them specifically for what they are talking about. Mr. Cole stated if a third parry sued the City of Delray Beach to try to do what the City is suggesting doing then Waste Management has agreed to pay for the City's attorney fees and indemnify the City to defend the action that was taken. Mr. Cole stated in this situation it is not a third party and the City is not defending; the City is on the opposite side so the indemnification is not going to help the City in this situation. Mrs. Petrolia stated in Amendment No. 1 there was language about Waste Management not being able to sue the City of Delray Beach and asked if that is specific to one item or in general. Mr. Cole stated it talks about if the City chose to not renew it Waste Management could not sue the City. However, Mr. Cole stated this does not apply here also because the City of Delray Beach chose to renew it; the City did not choose not to renew it. Mrs. Petrolia asked the City Attorney if he trusts in the legal opinion of Mr. Cole before the Commission. The City Attorney stated he trusts in the opinion that is before the Commission. Mrs. Petrolia asked who initially recommended the indemnification clause. The City Attorney stated he wanted to have an unlimited indemnification clause and Waste Management would not agree with that so they came back to $1 million. The City Attorney stated the reason he wanted that is because he was concerned that someone might file suit on this basis. Mrs. Petrolia asked when the last bid was on this waste hauler contract. The City Attorney stated he believes it was 2001. Mrs. Petrolia stated it is her understanding that the solar powered compactors were purchased by the City from Waste Management (one of their subsidiaries) and asked the City Manager to check into whether or not the City .has expended that money. Mr. Frankel stated this was not an easy decision but he feels he made the right decision to keep on with Waste Management. Mr. Frankel stated he does not support going out to bid. Brief discussion between Mayor Glickstein and Commissioner Frankel ensued. Mayor Glickstein stated this has never been about the service of Waste Management and feels this whole thing could have been avoided if the City followed what the ordinance said. Mayor Glickstein stated when you go through the procurement process it is a learning experience; you get information from the bidders that further define the scope of work that allows you to refine the scope of work that you need; it is not just about price. Mayor Glickstein stated the City eliminated all of the benefits of the bidding process with the make believe pass - through. Mayor Glickstein stated he cannot come up with one reason why the City should have not followed the ordinance. Brief discussion followed between Mr. Frankel and the City Attorney and the City Attorney agrees there needs to be some changes to the Purchasing Code. The City Attorney stated he supports Mr. Cole's opinion. Mr. Frankel asked with the agreement and the amendment was there other financial and in -kind benefits that the City received from Waste Management. The City Attorney stated Waste Management agreed not to charge the City for the pickup at the bus shelters and they also agreed to give the 12 06/18/13 City the solar powered compactors. Mr. Frankel expressed concern over the cost of this and the fact that if the City is going out to bid and although he recognizes that it is not a law firm in his opinion this is offering professional lobbying services which this Commission just gave direction to put out to bid (Item 9.A.). Mr. Frankel stated he feels this is the same thing and does not support going forward with this. The City Attorney recommended that the Commission sit down with Mr. Cole one -on -one after the motion because he believes it would be more productive where they can get better information from Mr. Cole at that time. Mr. Jacquet stated a comment was made about saving $1.7 million if the City were to stay in this contract and asked if this is accurate. The City Manager stated he does not know where the number came from. Mr. Jacquet stated the City Attorney suggested that if the Commission has questions that they have a one -on -one discussion with Mr. Cole and if that is a possibility he would like to take that opportunity. The City Attorney stated previous Commissions have complained about the complexity and length of the RFP that the City has for garbage collection and suggested to seek Mr. Cole's input on trying to narrow that down to make it clear and address those issues. In addition, the City Attorney emphasized that the City needs to make changes to the Purchasing guidelines. Mayor Glickstein clarified that the City Attorney's suggestion about speaking directly to Mr. Cole individually is after the Commission makes a recommendation to proceed or not proceed. Brief discussion between Commissioner Gray and the City Manager ensued. Mrs. Gray expressed concern over what this is going to cost the City and the City Manager explained that the City will never know the cost. The City Manager stated it is not one of those things where you get an estimate and have the person be bound to plus or minus 10 %. Furthermore, the City Manager stated when you procure professional services you are buying the expertise of a firm; it is not the same as going out and saying "give me the lowest hourly rate." Mayor Glickstein stated as Mr. Chapman and Mr. Cole said they cannot determine these costs in advance and if the Commission goes this direction it is part of the collateral damage of when bad decisions are made for the wrong reasons. Mrs. Petrolia moved to approve to proceed with a Declaratory Judgment action or other causes of action that the attorneys may deem reasonable and to appoint the law firm of Weiss Serota Helfma Pastoriza Cole & Boniske, P.L. as outside counsel at the rate of $215 an hour and that they look at the City's RFP; and also seek their input on the City's Purchasing Policy, seconded by Mr. Jacquet. Upon roll call the Commission voted as follows: Mrs. Petrolia — Yes; Mr. Jacquet — Yes; Mr. Frankel — No; Mrs. Gray — Yes; Mayor Glickstein — Yes. Said motion passed with a 4 to 1 vote, Mr. Frankel dissenting. At this point, Commissioner Petrolia left the dais. 13 06/18/13 At this point, the time being 7:41 p.m., the Commnission moved to the duly advertised Public Hearings portion of the Agenda. 10. PUBLIC HEARINGS: 10.A. ORDINANCE NO. I1 -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. The caption of Ordinance No. 11 -13 is as follows: 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. (The official copy of Ordinance No. 11 -13 is on file in the City Clerk's office.) A public hearing was held having been legally advertised in compliance with the laws of the State of Florida and the Charter of the City of Delray Beach, Florida. The City Attorney read the caption of the ordinance and stated this ordinance removes the requirement that if the General Employees' Pension Board makes changes to their investment policy that they would have to come in front of the Commission to have this Commission ratify those changes. Mayor Glickstein declared the public hearing open. There being no one from the public who wished to address the Commission regarding Ordinance No. 11 -13, the public hearing was closed. Mr. Jacquet asked if the General Employees' Pension Board can have five (5) members with no union representation whatsoever. The City Attorney stated it is five (5) and believes there is a requirement that the Director of Finance is one of the members but there are at least 3 or 4 other members that the Commission appoints and there is no requirement on those members. 14 06/18/13 Mrs. Gray moved to adopt Ordinance No. 11 -13 on Second and FINAL Reading, seconded by Mr. Frankel. Upon roll call the Commission voted as follows: Mr. Jacquet — Yes; Mr. Frankel — Yes; Mrs. Gray — Yes; Mayor Glickstein — Yes. Said motion passed with a 4 to 0 vote. 11. FIRST READINGS: A. None At this point, the time being 7:44 p.m., the Commission moved back to Item 9.C. of the Regular Agenda. 9.C. PROPOSAL FOR SETTLEMENT IN THOMAS VOLPE v. CITY OF DELRAY BEACH: Consider a Settlement Offer in the total amount of $150,000.00 in Thomas Volpe v. City of Delray Beach. Staff recommends denial. The City Attorney stated in this case the Plaintiff alleges he hit an orange cone that had been set out by City workers and is claiming that he suffered injuries and initiated a proposal for settlement for $150,000. Staff recommends denial. Mr. Frankel moved to deny the Proposal for Settlement in Thomas Volpe 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; Mr. Jacquet — Yes. Said motion to DENYthe proposal for settlement was passed with a 4 to 0 vote. At this point, Mrs. Petrolia returned to the dais. 9.1). PROPOSAL FOR SETTLEMENT IN ELIZABETH A. BROWN & BARNETT BARRY BROWN v. CITY OF DELRAY BEACH: Consider a Settlement Offer in the total amount of $215,000.00 in Elizabeth A. Brown & Barnett Barry Brown v. City of Delray Beach. Staff recommends denial. The City Attorney stated this is a lawsuit after a trip and fall on East Atlantic Avenue. Mrs. Brown is doing a proposal for settlement for $200,000 and Mr. Brown has a consortium claim and he did a proposal for settlement for $15,000. Staff recommends denial of both proposals of settlement. Mr. Frankel moved to deny the Proposal for Settlement in Elizabeth A. Brown & Barnett Barry Brown v. City of Delray Beach, 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 to DENY the proposal for settlement was passed with a 5 to 0 vote. 9.E. APPOINTMENTS TO THE COMMUNITY REDEVELOPMENT AGENCY: Appoint four (4) regular members to the Community Redevelopment Agency (CRA) to serve four (4) year terms ending July 1, 2017. Based upon the rotation system, the appointments will be made by Commissioner Petrolia (Seat #1), 15 06/18/13 Commissioner Jacquet (Seat #2), Commissioner Frankel (Seat #3) and Commissioner Gray (Seat #4). Mayor Glickstein stated after the nominations are made and recognized he wants to ask the Commission to open it up for comments regarding these nominees. The City Attorney stated in the memo it states "The City Attorney has determined that anyone who resides within the city limits is eligible for appointment." The City Attorney stated that is actually not the case. The City Attorney stated it is by LDR Section and State Statute "that anyone who resides or is engaged in a business in the CRA area is eligible for appointment." He stated in conversing earlier with the City Clerk's office he had been informed that all of the applicants on the list also meet that criteria. Mrs. Gray stated the Commission has never had discussions or any disapproval of anyone being appointed and asked if there is a reason Mayor Glickstein is requesting this tonight. Mayor Glickstein stated these are important board appointments and feels the public is entitled to hear any questions or comments from the Commission regarding these nominations. The City Attorney stated pursuant to the Local Rules if a Commissioner makes a nomination and that nomination fails to receive a second or does not receive three (3) votes in favor of that then that Commissioner can make a subsequent nomination at this same meeting or defer until the next meeting. Mrs. Petrolia stated she would like to defer her appointment to the next regular meeting of July 9, 2013. Mr. Jacquet moved to appoint Joseph Bernadel as a regular member to the Community Redevelopment Agency (CRA) to serve a four (4) year term ending July 1, 2017, 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. Prior to the vote, Mr. Jacquet stated Major Bernadel is a long -time resident and worker in town and owns Toussaint L'Ouverture (Charter School), 22 years in the U.S. Army and retired Major; Chief Operating Officer of the charter school and is a man of integrity. Mr. Jacquet stated he believes that Major Bernadel would bring a new perspective and carry forward the mission of the CRA. Mr. Frankel thanked everyone who applied. Mr. Frankel moved to appoint Nelson McDuff a as a regular member to the Community Redevelopment Agency (CRA) to serve a four (4) year term ending July 1, 2017, seconded by Mrs. Gray. Upon roll call the Commission voted as follows: Mrs. Petrolia — No; Mr. Jacquet — No; Mr. Frankel — Yes; Mrs. Gray — Yes; Mayor Glickstein 16 06/18/13 — No. Said motion was DENIED with a 3 to 2 vote, Mr. Frankel and Mrs. Gray dissenting. Commissioner Petrolia read a brief statement into the record supported in other parts of our county about past elected officials applying for volunteer positions. Mr. Jacquet stated he is a Commissioner for the people of Delray Beach. Mr. Jacquet expressed concern about immediate past elected officials being put on such an important board immediately after leaving office; he would not have had that problem had it been a year. He stated the County has a two -year rule and the City has a one -year rule for running for election again and suggested that the Commission implement the one -year rule as opposed to a two -year. Mayor Glickstein stated the County ordinance is sound and is reasoning. Mayor Glickstein stated he respects Mayor McDuffie's many years of public service which is extensive and thankless hard work; however, he feels that the Commission is fortunate to have a list of qualified applicants. Mayor Glickstein deferred to the County rule that this is a bad practice and he does not support the nomination. Mr. Frankel stated he would like to defer his appointment to the next Regular Meeting of July 9, 2013. Mr. Frankel asked for a legal opinion whether the blockage of his fellow Commissioners in essence takes away his right to appoint someone to this board that is duly qualified just because they are following some county policy that is not in effect to this city. Mayor Glickstein clarified that was not the reason for his opinion and reiterated that there are a list of qualified applicants who are perhaps more independent. Mayor Glickstein stated for him personally he would like to get to more value added business in this town. Mrs. Gray moved to reappoint Herman Stevens as a regular member to the Community Redevelopment Agency to serve a four (4) year term ending July 1, 2017, 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. Prior to the vote, Mrs. Petrolia stated Mr. Stevens has done strong work with the CRA Commission balancing the needs of the various areas of our community and he understands what needs to be done to bring the West Atlantic Avenue Corridor up to the Ievels it deserves. Mr. Jacquet stated Mr. Stevens has a business in the CRA district and he has represented this community very well. Mr. Jacquet stated he fully supports the nomination of Mr. Stevens. Mayor Glickstein stated Mr. Stevens is an attorney by training and feels this is important skill sets to have on the board. Mayor Glickstein fully supports the nomination. 17 06/18/13 9.G. APPOINTMENT TO THE DOWNTOWN DEVELOPMENT AUTHORITY: Appoint one (1) regular member to the Downtown Development Authority Board to serve a three (3) year term ending July 1, 2016. Based upon the rotation system, the appointment will be made by Commissioner Petrolia (Seat #1). Mrs. Petrolia moved to reappoint Seabron Smith as a regular member to the Downtown Development Authority Board (DDA) to serve a three (3) year term ending July 1, 2016, 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. 12. COMMENTS AND INQUIRIES ON NON - AGENDA ITEMS. 12.A. City Manager The City Manager had no comments or inquiries on non - agenda items. 12.B. City Attorne The City Attorney had no comments or inquiries on non - agenda items. 12.C. City Commission 12.C.1. Mr. Jacquet Mr. Jacquet cheered "Go Heat!" 12.C.2. Mrs. Petrolia Mrs. Petrolia stated she was surprised at the City Attorney's response and apologized for asking the question three times. She stated they are trying to get to the end of this with regard to Waste Management and it looks like they are heading down that track. Mrs. Petrolia stated she appreciates the support of this Commission because she believes it is imperative that we shine good governance into the population and as important as it is to make sure we are watching the dollars of our taxpayers it is equally important that we have trust coming from the public to the public officials. Secondly, Mrs. Petrolia cheered "Go Heat!" 12.C.3. Mrs. Gray Mrs. Gray had no comments or inquiries on non - agenda items. 18 06/18/13 12.C.4. Mr. Frankel Mr. Frankel stated with regard to Mayor Glickstein's comments he stated it is not just tonight but it has been every consecutive meeting where derogatory shots are being taken. He apologized for his abruptness but stated he will not stand for it anymore. Secondly, Mr. Frankel stated he will not be attending the Goal Setting meeting. Mayor Glickstein stated there is a distinction between substantive debate and difference of opinions and the ability to agree to disagree. He stated unanimity on any board or commission is not healthy. Mr. Frankel stated things have been slipping little by little and it is culminated by the blockage of an appointment of his of someone duly qualified who has served this city as a Mayor and Commissioner for six (6) years, served on boards prior to that, and the Delray Little League, etc. Mr. Frankel feels to question Nelson McDuffie's character and for a prepared statement to be written is disgraceful in his view. Mrs. Petrolia stated it is sometimes easier for her to have something prepared to come to the meetings. Mrs. Petrolia stated she is looking specifically at the CRA Board and who can best serve our city on that Board and she did not feel it was Mr. Frankel's selection. Mrs. Petrolia explained that she did not feel it would be proper of her to say "no" without having reasons backing it and that is what she did. Mayor Glickstein stated regarding that discussion he does not recall anything that anybody said that in any way impugned the character of Nelson McDuffie. Mayor Glickstein stated it is a substantive discussion and is up to each individual Commissioner to express their views and reiterated that the Commission can agree to disagree and he does not believe it was personal. 12.C.5. Mayor Glickstein Mayor Glickstein stated in the Goal Setting meetings although the Commission did not get to address many of the goals they did agree that they would work very hard to keep these meetings civil and non - personal. He stated to the extent that his comments were taken out of context, Mayor Glickstein explained that his remarks were not meant to be personal but were about the process. Mayor Glickstein apologized if he offended anyone and stated his comments were not intended to be personal to anybody. There being no further business, Mayor Glickstein declared the meeting adjourned at 8:06 p.m. 19 06/18/13 City Clerk ATTEST: 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 June 18, 2013, which Minutes were formally approved and adopted by the City Commission on July 9, 2013. '\Z) 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. - 20 06/18/13