03-18-14 Regular City Commission Minutes MARCH 18,2014
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A Regular Meeting of the City Commission of the City of Delray Beach,
Florida, was called to order by Vice Mayor Jacquet in the Commission Chambers at City
Hall at 6:00 p.m., Tuesday, March 18, 2014.
1. Roll call showed:
Present- Vice Mayor Alson Jacquet
Commissioner Adam Frankel
Commissioner Angeleta E. Gray
Absent- Mayor Cary Glickstein
Commissioner Shelly Petrolia
Also present were - Louie Chapman, Jr., City Manager
Janice Rustin, Assistant City Attorney
Kimberly Wynn, Acting City Clerk
2. The opening prayer was delivered by Reverend Nancy Norman with Unity
Church of Delray Beach.
3. The Pledge of Allegiance to the flag of the United States of America was
given.
4. APPROVAL OF MINUTES:
None.
5. PRESENTATIONS:
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None.
At this point, the Commission moved to Comments and Inquiries on
Agenda and Non-Agenda Items from the City Manager and the Public Immediately
Following Presentations.
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6.A. City Manager's response to prior public comments and inquiries.
None.
6.B. From the Public.
6.B.1. Kevin Warner, 248 Venetian Drive, Delray Beach, FL 33483,
congratulated Vice Mayor Jacquet and stated he will miss seeing Commissioner Gray on
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the dais and she has been a helpful calming influence.
6.B.2. Ronald Gilinsky, 1405 S. Federal Highway 9140, Delray Beach, FL
33483, urged the Commission to give the Police Officers a 5% raise which will cost the
City $470,000 because they have not had a raise in six (6) years. Mr. Gilinsky stated the
City of Delray Beach is on the verge of losing a substantial number of police officers due
to retirement and due to Police who are going to go to Palm Beach County Sherriffs
Office for more money and more opportunity. Mr. Gilinsky urged the City Commission
to approve a 5% raise for the Police Officers and a one (1) year contract they asked for a
year ago.
6.B.3. Pauline Moody, 609 S.W. 8th _Avenue, Delray Beach.-FL 33444,
congratulated Commissioner Jacquet for being re-clected and stated she is sorry to see
Commissioner Gray go.
6.B.4. Karen Granger, President/CEO of the DeIray Beach Chamber of
Commerce, 140 N.E. 1St Street, Delray Beach, FL, thanked the public for attending the
recent candidate forum and thanked all the candidates for running for office. Ms.
Granger stated they have gone from 600 members to 1,000 members and invited
everyone to see the type of businesses that are coming to them. She stated many people
have come from Toronto and New York and have always vacationed in Delray Beach and
are very successful business people. Ms. Granger stated marketing companies, healthcare
companies, and G-Sky, etc. are coming to Delray. She stated the membership is
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reflective of what is happening in the community with small business and invited
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everyone to come see the new facility.
6.B.5. Mayor Joseph Bernadel, retired Mayor with the United States Army
(22 years) and President/Founder of the Toussaint L'Ouverture Charter High
School, 301 S.W. 14 th Avenue, Delray Beach, FL 33444, congratulated Vice Mayor
Jacquet for being re-elected and wished Commissioner Gray the best in all her endeavors.
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Major Bernadel stated he is happy to see the over-naming of S.E. 2 Avenue to
Toussaint L'Ouverture Way and is glad to see that the City has made the decision to
honor the Haitian community by over-naming the street.
6.B.6. Ari Whiteman 5091 Washington Road Delray Beach FL 33484
congratulated Commissioner Jacquet on his re-election and stated he will miss
Commissioner Gray because he feels she has done some great work. Mr. Whiteman
reiterated comments expressed by Mr. Gilinsky and stated it is time the Police
Department gets a raise because they do great work.
6.B.7. Bill Bains, 159 Marine Way Slip ##11, Delray Beach, FL 33483_
(Marina District), stated residents of the Marina District have not had any input into the
planning of the new parking test taking place April 1St
Vice Mayor Jacquet asked what level of communication was done with
the Marina District residents. Vice Mayor Jacquet asked how soon staff can
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communicate this with Mr. Bain and the residents of the Marina District residents to give
him an update.
6.B.8. Mitchell Katz, 4569 Danson Way, Delray Beach_FL 33445 (President
of Bexley Park member of the Education Board and a member of the PTA at
Banyan Creek Elementary School), briefly commented on addendum Item 9.E.,
Auburn Trace LTD. Urban Development Action Grant (UDAG) Loan Assignment and
Assumption Proposal. Mr. Katz stated he hopes the reason this is on the agenda is to
send a clear message to the Auburn Group that they need to pay the debt they owe the
City of Delray Beach and urged the City Commission to reject.
6.8.9. Yvonne Odom, 3905 Lowson Boulevard, Delray Beach, FL 33445,
congratulated Vice Mayor Jacquet on his re-election (a former Carver Middle School
student) and stated she is saddened to see Commissioner Gray go. Mrs. Odom stated she
is part of an organization that has been in the community for over 40 years and noted this
Saturday at 10:00 a.m. they will have the Opening Ceremony for the Delray Beach
American Little League. Mrs. Odom stated Mrs. Gray is a former player but she is also a
sponsor and has been very instrumental in getting the building done at Pompey Park.
Mrs. Odom stated she is looking forward to working with the newly elected officials.
6.8.10. Rick Burgess, 2012 Alta Meadows Lane Unit 4102 DeIrgy Beach FL
33444, thanked Commissioner Gray for her countless hours helping the city, stated she
will be missed and noted she is a classy lady. Mr. Burgess congratulated Vice Mayor
Jacquet for his re-election and expects that he move this city forward.
6.8.11. Pamela Van Horn Nobili 159 Marine Way, DeIrgy Beach FL 33483
(lives on a boat), stated she understands that the Commission is aware of the proposed
new Marina Historic District parking rules that are supposed to go into effect April 1st
However, Ms. Nobili sated none of the Marina residents/boaters ever received notice of
the proposed parking rules. She stated the condo owners on the west side of the Marina
knew about the proposed parking rule but the boaters were excluded. She contacted
Randal Krejcarek who informed her that she is not part of the Marina Historic District.
Ms. Nobili stated all the boaters have been excluded and they have only one parking
permit and have no place to park. She urged the Commission to address this issue and
help the boat owners.
6.8.12. Christina Morrison, 2809 Florida Boulevard #207, Delray Beach, FL
33483, congratulated Vice Mayor Jacquet on his re-election and extended her sincere
admiration and appreciation to Commissioner Gray for helping to guide this city through
one of the worst recessions. Ms. Morrison stated the City is booming right now because
of Commissioner Gray's leadership. In addition, Ms. Morrison thanked Commissioner
Gray for having the vision for the redevelopment of West Atlantic Avenue.
6.8.13. Richard (Dick) Simmons, Marine Way resident_ of_Slip #5 Delray
Beach,FL 33483, stated the residents of the Marina District have been excluded and they
would like to know when their concerns will be addressed.
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At this point, the City Manager stated the City Commission takes
comments and does not respond on the spot. However, with regard to the Marina issue,
the City Manager stated he will assign this to a staff person and they should be contacted
by Thursday.
6.814. Kurt Grims2aard, 159 Marine Way, Delray Beach, FL 33483, (lives
on a boat in the Marina Historic District), stated between his wife and two daughters
they have four cars. Mr. Grimsgaard stated starting in April the public parking on the
west side of the street will be for the condo owners only who already have four (4)
parking places in the back of each unit. Mr. Grimsgaard stated they only get one parking
space even though the entire east side of the street usually has twelve (12) vacant spots
they can only park one car there. Mr. Grimsgaard expressed concern that one of his
daughters is a nurse and the other is a student who takes classes at night and they will
have to park six (6) blocks away and walk to the boat that could be a potential problem.
He feels the boat owners in the Marina District should be entitled to the same amount of
parking passes that the condo owners get.
6.8.15. Ty Powell, 406 Bluebird Lane, Delray Beach, FL 334451 stated his
mother lives in the Marina District and there is no parking. Therefore, Mr. Powell stated
if he wants to visit his mother he has to call her ahead of time she reserves her spot on the
other side with a car and he comes the next day. Mr. Powell suggested that the City
provide guest passes to the boat owners in the Marina Historic District.
6.8.16. Randolph Belli, 159 Marine Way, Delray Beach, FL 33483 (lives on a
boat in the Marina Historic District), stated prior to people speaking this evening he
has never heard about anything happening on the west side of the street and no one has
ever contacted him.
6.8.17. Ron Nobili, 159 Marine Way, Slip #15, Delray Beach, FL 33483 (lives
on a boat in the Marina Historic District), stated they were only granted one permit per
vessel; there are 25 spots plus two handicapped spots and there are 24 boaters. Mr. Nobili
stated none of the boaters show up at the same time and noted that he conducted his own
survey for the past week. He urged the City to allow the boaters to utilize the parking
spaces on the east side of Marine Way and their spouses will have to park six (6) blocks
away. Mr. Nobili stated he lived in Connecticut for 64 years and his boat was 50 miles
from where he lived and he never had a break in. Mr. Nobili stated he has lived in Delray
Beach for 41/2 years and he has had a bicycle and a laptop taken out of his boat. Mr.
Nobili stated approximately 3 weeks ago a man by the name of Carvel Beadle was
arrested in West Palm Beach who randomly shot a man (Taylor Caldwell)because he had
anger issues. Mr. Nobili stated he has an arrest warrant for Mr. Carvel Beadle because
Mr. Beadle was sitting on his boat on August 4, 2011. Mr. Nobili stated there is crime in
this area and he does not feel that it is right to have a spouse walk six (6) blocks from
where they park to get to their boat. He reiterated that they should be allowed to utilize
the parking spaces that are available on the east side of Marine Way.
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6.8.18. Carolyn Simmons, 159 Marine Way, SIip #5, Delray Beach, FL 33483,
suggested that the Marina Historic District parking boundaries map be redone to include
those people in the marina.
7. AGENDA APPROVAL.
The City Manager requested that Item 10.A., Ordinance No. 07-14 be
postponed to a date certain of April 15, 2014.
The City Manager stated because there are only three (3) Commission
members present this evening he requested to remove Item 9.C., Rescind the Bid
Award: Micro EnteEprise Technical Assistance Consultin and 9.C.1., Request for
ualific_ations for the Micro Enterprise Technical Assistance Consulting. Also, the
City Manager noted the addition of Item 9.E., Auburn Trace LTD. Urban
Development Action Grant (UDAG) Loan Assignment and Assumption Proposal by
addendum and the addition of Item 8.G., Over-Naming of S.E. 2"d Avenue to
Toussaint L'Ouverture Way by addendum.
For the record, Mrs. Gray stated she has a conflict of interest and disclosed
that she had a business relationship with The Business Loan Fund and that she also has a
conflict of interest with the IED Group because her good friend Albert McCarthy is one
of the contractors with that company was also one of her grass roots Campaign Managers
from the 2012 and 2014 Elections. Therefore, Mrs. Gray stated she will recuse herself
from voting on these items.
The City Manager stated based on the fact that there are only three (3)
Commission members present that item could not go forward since it requires a
unanimous consent of three (3)voting members of the Commission.
Mrs. Gray stated there were several things mentioned during her campaign
that she approved a contract with IED and that she was under investigation by the City of
Delray Beach. For the record, Mrs. Gray asked the City Manager to clarify that the City
does not have any contract with IED or former Commissioner Alberta McCarthy and that
Mrs. Gray is not under investigation with the City of Delray Beach nor has Mrs. Gray
ever been under investigation by the City of Delray Beach.
Mrs. Gray stated for those people in the audience who went knocking on
doors telling lies about her and for people that posted lies on Delray Raw she asked that
this misinformation be corrected and clarified.
For the record, Mrs. Gray stated that her daughter does not live at Auburn
Trace and she has not lived at the Villages of Delray Beach for the last 11/2 years.
Mr. Frankel moved to approve the Agenda as amended, seconded by Mrs.
Gray. Upon roll call the Commission voted as follows: Vice Mayor Jacquet— Yes; Mr.
Frankel—Yes; Mrs. Gray—Yes. Said motion passed with a 3 to 0 vote.
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8. CONSENT AGENDA: City Manager Recommends Approval.
S.A. AMENDMENT NO. 1 TO AGREEMENT FOR GENERAL
CONSULTING SERVICES: Approve Amendment No. 1 to Agreement for General
Consulting Services with Currie Sowards Aguila Architects, David Miller and Associates
and Walter Zackria and Associates (RFQ #2012-15) to extend services for one (1) year.
This recommendation is in compliance with Ordinance No. 29-13, Section 36.02(C)(3),
"Professional Services" and Section 36.07(A)(2), "Termination, Extension and Renewal".
8.B. REIMBURSEMENT/UNIOUE TRANSPORTATION & TOURS,
LLC: Approve reimbursement to Unique Transportation & Tours, L.L.C. in the amount
of $4,210.82 for additional insurance premiums required for Trolley 9004 for the
operation of the Downtown Roundabout trolleys (Bid No. 2013-22).
8.C. AMENDMENT NO. 1 TO COMMUNITY DEVELOPMENT
BLOCK GRANT (CDBG) SUB-RECIPIENT FUNDING AGREEMENT/FAIR
HOUSING CENTER OF THE GREATER PALM BEACHES: Approve
Amendment No. 1 to the Community Development Block Grant (CDBG) Sub-Recipient
Funding Agreement with the Fair Housing Center of the Greater Palm Beaches under FY
2013-2014 to reduce the number of seminars provided.
8.D. PROCLAMATIONS:
1. Earth Day 2014—April 22, 2014
8.E. REVIEW OF APPEALABLE LAND DEVELOPMENT BOARD
ACTIONS: Accept the actions and decisions made by the Land Development Boards
for the period March 3, 2014 through March 14, 2014.
8.F. AWARD OF BIDS AND CONTRACTS:
1. Bid award to Match point, Inc. the lowest responsive bidder, in the
— p � p
amount of 1,893,187.00 for Phase II of the Meter Replacement and
Advanced Metering Infrastructure (AMI)project (PIN 2012-013).
The recommendation is in compliance with Ordinance No. 29-13,
Section 36.02 Methods of Acquisition" (A)(1) Sealed
Competitive Method". Funding is available from 442-5178-536-
64.46 ((Machinery and Equipment).
2. Bid award to Cigna Healthcare (RFP No. 2014-15) in an amount
not to exceed 878 283.00 for Group Medical Benefit Plans with a
$ , p ,
36-month rate guarantee. The recommendation is in compliance
with Ordinance No. 29-13, Section 36.03(A), "Acquisitions from
vendors exceeding $25,000 in any Fiscal Year". Funding is
available from 551-1576-591-45.20 (Insurance Fund:
Insurance/Claims Handling Costs), 551-1576-594-45.35
(Aggregate Stop Loss Premiums) and 551-1576-591-45.36
(Individual Stop Loss Premiums).
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3. Bid award to Humana for Dental and Vision, Minnesota Life for
Life Insurance, AD&D and Supplemental Life Benefits, Cigna for
Long Term Disability regarding the Group Ancillary Benefit Plans
for RFP No. 2014-16. The recommendation is in compliance with
Ordinance No. 29-13, Section 36.03(A), "Acquisitions from
vendors exceeding 525,000 in any Fiscal Year". Funding is
available from 551-1576-591-45.43 (Dental Premiums); 551-1576-
594-45.49 (Vision Premiums); 551-1576-591-45.44 (Long Term
Disability Premiums); 551-1576-591-45.40 (Life and AD&D
Premiums) and 551-1576-591-45.37 (Supplemental Life
Premiums).
4. Purchase award to Rechtien International, West Palm Beach,
Florida in an amount not to exceed $40,000.00 for parts and
outside services. The recommendation is in compliance with
Ordinance No. 29-13, Chapter 36, Section 36.02 (C)(6)(a), "Sole
Source and City Standard". Funding is available from 501-3311-
591-52.52 (Garage Fund: Operating Supplies/City Garage —
Outside Service).
5. Purchase Award to Home Depot from multiple categories in
multiple small dollar amounts expected to exceed $25,000.
Funding is available from multiple departmental FY 2014 budgets.
8.G. OVER-NAMING OF S.E. 2' AVENUE TO TOUSSAINT
L'OUVERTURE WAY: Consider approval of the over-naming of S.E. 2"d Avenue to
Toussaint L'Ouverture Way. (ADDENDUM)
Mr. Frankel moved to approve the Consent Agenda as amended, seconded
by Mrs. Gray. Upon roll call the Commission voted as follows: Mr. Frankel--Yes; Mrs.
Gray—Yes; Vice Mayor Jacquet—Yes. Said motion passed with a 3 to 0 vote.
At this point, Vice Mayor Jacquet stated everyone who is present this
evening for Item 8.G., Over-Naming of S.E. 2ad Avenue to Toussaint L'Ouverture
Way, this was just approved on the Consent Agenda and congratulated those individuals
for their support.
At this point, Kimberly Wynn, Acting City Clerk, stated due to his
absence, Mayor Glickstein has requested that a statement be read into the record with
regard to the Auburn Trace item being added to the Agenda at the last minute. However,
when Ms. Wynn began to read Mayor Glickstein's statement into the record she was
asked to stop reading the rest of the statement by the Commissioners who were present.
Vice Mayor Jacquet stated if this is within Robert's Rules or the
Commission's, rules then he is willing to listen to the statement; however, if this is not
within Robert's Rules or within the Commission's rules and someone is not present he
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does not understand the point of reading the statement into record.
Mrs. Gray stated she does not care to hear the statement. Mrs. Gray stated
this item was told to the applicant that it would be on today's Agenda (March 18, 2014)
and last week when the Commission was told that Mayor Glickstein and Commissioner
Petrolia would not be present this evening the item was pulled from the Agenda. Mrs.
Gray stated the City Commission approved this in January for this to be heard this
evening. Mrs. Gray stated in the past there have been only three (3) Commission
members present and they were still able to conduct business.
The City Manager stated this item was not on the Agenda partly because
Mayor Glickstein and Commissioner Petrolia would not be here and also the Interim City
Attorney is in Tallahassee. In addition, the City Manager stated staff has also not had the
opportunity to do the analysis on exactly what the proposal was. The City Manager
stated there was a combination of factors that caused staff to put the item on the March
18, 2014 Agenda initially. The City Manager stated this is the first time that the
Commission has seen this particular proposal.
9. REGULAR AGENDA:
9.A. CONDITIONAL USE EXTENSION REOUEST/SWINTON
SOCIAL: Consider a conditional use extension request to allow outdoor dining at night
within the Old School Square Historic Arts District for Swinton Social located at 27-43
South Swinton Avenue. (Quasi-Judicial Hearing)
Vice Mayor Jacquet read the City of Delray Beach Quasi-Judicial rules
into the record for this item.
Kimberly Wynn, Acting City Clerk, swore in those individuals who
wished to give testimony on this item.
Vice Mayor Jacquet asked the City Commission to disclose their ex parte
communications. The Commission had no ex parte communications to disclose.
Mark McDonnell, AICP, Director of Planning and Zoning, entered the
Planning and Zoning Department project file 42012-038 into the record.
Mr. McDonnell stated this is a conditional use extension to allow dining at
night. Outdoor dining during the daylight hours is permitted in the OSSHAD Zoning
District. Mr. McDonnell stated this request is associated with the adaptive reuse of four
(4) contributing structures on the east side of Swinton Avenue between Atlantic Avenue
and 1St Street. On November 16, 2011, the Historic Preservation Board (HPB) approved
a Certificate of Appropriateness (COA) and a Class V for a new spa, restaurant, cafe, and
kitchen uses which were the adaptive reuse of the existing four (4) residential dwellings
currently unoccupied. On February 7, 2012, the City Commission approved the outdoor
dining at night. He stated there are specific hours that remain unchanged from the
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original approval from two (2) years ago. Mr. McDonnell stated recently the Historic
Preservation Board (HPB) extended the COA and Class V on November 20, 2013 to
November 16, 2015. Mr. McDonnell stated this request for conditional use to extend the
outdoor dining at night would extend it to February 7, 2016. He stated the applicant
provided reasons for the extension request and they noted that past economic events and
difficulty securing funding which they have reported is no longer a problem. Mr.
McDonnell stated the original conditions of approval that staff set forth in the original
report remain valid. Staff recommends approval of the extension request.
Bert Collazo, Swinton Social, applicant, stated he is present for any
questions the Commission may have.
Vice Mayor Jacquct stated if anyone would like to speak in favor or in
opposition of the conditional use extension, to come forward at this time. There being no
one from the public who wished to address the Commission, the public comment was
closed.
There was no cross-examination or rebuttal.
Mrs. Gray stated she is excited about this project and she supports it.
Janice Rustin, Assistant City Attorney, briefly reviewed the Board Order
with the Commission who made findings according to their consensus (attached hereto is
a copy and made an official part of the minutes).
Mr. Frankel moved to adopt the Board Order as presented, seconded by
Mrs. Gray. Upon roll call the Commission voted as follows: Mrs. Gray — Yes; Vice
Mayor Jacquet—Yes; Mr. Frankel—Yes. Said motion passed with a 3 to 0 vote.
9.13. CHANGE ORDER NO. 1/ACCURATE EVENT GROUP. Consider
approval of Change Order No. 1 (C.O. No. 1) in the amount of $3,061.88 to Accurate
Event Group for additional security hours that were needed for the Delray Beach Open by
the Venetian Las Vegas Tennis Tournament. This change order is requested per the City
of Delray Beach Purchasing Ordinance Section 36.06(A)(1), "Competency in Bidding".
Funding is available from 001-4210-575-55.40 (General Fund/Recreational
Supplies/Tennis Tournament).
Robert A. Barcinski, Assistant City Manager, stated this item is Change
Order No.1 in the amount of $3,061.88 to Accurate Event Group for the additional
security hours that were needed for the recently completed tennis tournament. Mr.
Barcinski stated a big chunk of this was the substitution of private security services at a
lesser cost for police officers at the stadium gates and there were also some rain delays.
Staff recommends approval.
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Mrs. Gray moved to approve Changer Order No. 1 in the amount of
$3,061.88 to Accurate Event Group for additional security hours and rain delays,
seconded by Mr. Frankel. Upon roll call the Commission voted as follows: Vice Mayor
Jacquet — Yes; Mr. Frankel — Yes; Mrs. Gray — Yes. Said motion passed with a 3 to 0
vote.
9.C. THIS ITEM HAS BEEN REMOVED FROM THE AGENDA.
9.C.1. THIS ITEM HAS BEEN REMOVED FROM THE AGENDA.
9.D. APPOINTMENT TO THE DELRAY BEACH HOUSING
AUTHORITY: Appoint one (1)regular member to the Delray Beach Housing Authority
to serve a four year term ending March 6, 2018. Based upon the rotation system, the
recommendation for appointment will be made by Commissioner Frankel (Seat 93).
Mr. Frankel moved to appoint Kevin Warner to the Delray Beach Housing
Authority as a regular member to serve a four (4) year term ending March 6, 2018,
seconded by Mrs. Gray. Upon roll call the Commission voted as follows: Vice Mayor
Jacquet — Yes; Mr. Frankel — Yes; Mrs. Gray — Yes. Said motion passed with a 3 to 0
vote.
At this point, the Commission took a two (2) minute break. The
Commission reconvened and moved to the Item 10,Public Hearings.
10. PUBLIC HEARINGS:
10.A. THE ITEM HAS BEEN POSTPONED TO A DATE CERTAIN OF
APRIL 15,2014.
10.B. ORDINANCE NO. 04-14: Consider a privately-initiated Rezoning from
RO (Residential Office) District to RM (Medium Density Residential) District for a
parcel of land located on the south side of S.W. 1 st Street, between SW 1 st Avenue and
SW 2nd Avenue within the Coda Development. (Quasi-Judicial Hearing)
The caption of Ordinance No. 04-14 is as follows:
AN ORDINANCE OF THE CITY COMMISSION OF
THE CITY OF DELRAY BEACH, FLORIDA,
REZONING AND PLACING LAND PRESENTLY
ZONED RO (RESIDENTIAL OFFICE) DISTRICT TO
RM (MEDIUM DENSITY RESIDENTIAL) DISTRICT;
SAID LAND BEING A PARCEL LOCATED ON THE
SOUTH SIDE OF SW IT STREET, BETWEEN SW 1ST
AVENUE AND SW 2ND AVENUE, AS MORE
PARTICULARLY DESCRIBED HEREIN;AMENDING
"ZONING MAP OF DELRAY BEACH, FLORIDA,
JANUARY 2012" PROVIDING A GENERAL
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REPEALER CLAUSE, A SAVING CLAUSE, AND AN
EFFECTIVE DATE.
(The official copy of Ordinance No. 04-14 is on file in the City Clerk's
office.)
Janice Rustin, Assistant City Attorney read the caption of the ordinance.
A public hearing was held having been legally advertised in compliance with the laws of
the State of Florida and the Charter of the City of Delray Beach, Florida.
Mark McDonnell, AICP, Director of Planning and Zoning, entered the
Planning and Zoning Department project file#2014-005 into the record.
Mr. McDonnell stated this ordinance is to consider a privately initiated
rezoning from RO (Residential Office) to RM (Medium Density Residential). Mr.
McDonnell stated this is a .62 acre parcel of land located on the south side of S.W. 1"
Street between S.W. 1St Avenue and S.W. 2nd Avenue. A portion of the development is
vacant and is zoned RO (Residential Office) and the remaining 1.38 acre portion contains
36 existing townhomes and noted the lower part is zoned RM (Medium Density
Residential) and the land use is RM (Medium Density Residential). Mr. McDonnell
stated the current proposal for development of the subject property is to construct 16
townhomes for a total of 52 townhomes in the overall development, the is to expand the
Southwest Neighborhood Overlay District to include the subject property, the Future
Land Use Map amendment from TRN (Transitional) to MD (Medium Density
Residential 5-12 du/ac) and an amendment to the LDRs to expand the Southwest
Neighborhood Overlay District map to include the subject property are being processed
in order to accommodate the proposed development.
At its meeting of January 27, 2014, the Planning and Zoning Board held a
public hearing and recommended approval on a 7 to 0 vote of the rezoning from RO
(Residential Office) District to RM (Medium Density Residential) Commission passed
this ordinance. At its meeting of February 24, 2014, the City Commission passed this
ordinance. Staff recommends approval.
Mr. Frankel stated he has had no communications since this was first
discussed. Mrs. Gray stated she had no ex parte communications to disclose. Vice
Mayor Jacquet stated he had no ex parte communications to disclose.
Tim Hernandez, representing the petitioner New Urban Lighthouse,
LLC 398 N.E. 6'h Avenue Delray Beach FL 33483 stated he is present if the
Commission has any questions.
The applicant requested that this item be deferred until the next regular
City Commission meeting of April 1, 2014.
Mr. Frankel moved to defer Ordinance No. 04-14 to the regular City
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Commission meeting of April 1, 2014, seconded by Mrs. Gray. Upon roll call the
Commission voted as follows: Vice Mayor Jacquet—Yes; Mrs. Gray Yes; Mr. Frankel
—Yes. Said motion passed with a 3 to 0 vote.
10.C. ORDINANCE NO. 06-14: Consider a privately-initiated amendment to
the Land Development Regulations by amending Article 4.7, "Family/Workforce
Housing", Section 4.7.1 "Definitions", Subsection (p) "Southwest Neighborhood Overlay
District" to expand the area as shown on the map by repealing the existing map and
replacing it with a new one; and by amending Section 4.5.9 "The Southwest
Neighborhood Overlay District"to correct a scrivener's error. (Quasi-Judicial Hearing)
The caption of Ordinance No. 06-14 is as follows:
AN ORDINANCE OF THE CITY COMMISSION OF
THE CITY OF DELRAY BEACH, FLORIDA,
AMENDING THE LAND DEVELOPMENT
REGULATIONS OF THE CODE OF ORDINANCES, BY
AMENDING ARTICLE 4.7 "FAMILY/WORKFORCE
HOUSING", SECTION 4.7.1 "DEFINITIONS",
SUBSECTION (P) "SOUTHWEST NEIGHBORHOOD
OVERLAY DISTRICT" TO EXPAND THE AREA AS
SHOWN ON THE MAP BY REPEALING THE
EXISTING MAP AND REPLACING IT WITH A NEW
ONE; AND BY AMENDING SECTION 4.5.9 "THE
SOUTHWEST NEIGHBORHOOD OVERLAY
DISTRICT" TO CORRECT A SCRIVENER'S ERROR,
PROVIDING A SAVING CLAUSE, A GENERAL
REPEALER CLAUSE, AND AN EFFECTIVE DATE.
(The official copy of Ordinance No. 06-14 is on file in the City Clerk's
office.)
Janice Rustin, Assistant City Attorney read the caption of the ordinance.
A public hearing was held having been legally advertised in compliance with the laws of
the State of Florida and the Charter of the City of Delray Beach, Florida.
Vice Mayor Jacquet asked the Commission to disclose their ex parte
communications. The Commission had no ex parte communications to disclose.
Mr. Frankel moved to defer Ordinance No. 06-14 to the regular City
Commission meeting of April 1, 2014, seconded by Mrs. Gray. Upon roll call the
Commission voted as follows: Mr. Frankel—Yes; Mrs. Gray—Yes; Vice Mayor Jacquet
—Yes. Said motion passed with a 3 to 0 vote.
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10.D. RESOLUTION NO. 10-14/CONTRACT FOR SALE AND
PURCHASE/100 WEST ATLANTIC AVENUE: Consider approval of Resolution
No. 10-14, a contract for sale and purchase, authorizing the City to transfer property
located at 100 West Atlantic Avenue to Palm Beach County for the amount of$10.00.
The caption of Resolution No. 10-14 is as follows:
A RESOLUTION OF THE CITY COMMISSION OF THE
CITY OF DELRAY BEACH, FLORIDA,
AUTHORIZING THE CITY TO TRANSFER TO PALM
BEACH COUNTY CERTAIN REAL PROPERTY IN
PALM BEACH COUNTY, FLORIDA, AS DESCRIBED
HEREIN, HEREBY INCORPORATING THE
CONTRACT STATING THE TERMS BETWEEN THE
CITY OF DELRAY BEACH AND PALM BEACH
COUNTY, FLORIDA, DATED NOVEMBER 12, 2002.
(The official copy of Resolution No. 10-14 is on file in the City Clerk's
office.)
Janice Rustin,Assistant City Attorney read the caption of the resolution.
Vice Mayor Jacquet declared the public hearing open. There being no one
from the public who wished to address the Commission regarding Resolution No. 10-14,
the public hearing was closed.
Mr. Frankel moved to approve Resolution No. 10-14, seconded by Mrs.
Gray. Upon roll call the Commission voted as follows: Mrs. Gray — Yes; Vice Mayor
Jacquet—Yes; Mr. Frankel—Yes. Said motion passed with a 3 to 0 vote.
9.E. ADDENDUM TRACT LTD. URBAN DEVELOPMENT ACTION
GRANT (UDAG) LOAN ASSIGNMENT AND ASSUMPTION PROPOSAL:
Consider approval of a request from Auburn Trace, Ltd. To propose an Assignment and
Assumption Agreement of the City's Urban Development Action Grant Loan to an
affiliate of Auburn Trace, Ltd. (Auburn) (ADDENDUM)
Vice Mayor Jacquet disclosed that he believes one of his former
colleagues (Mackenson Bernard) who he worked with in the past in Tallahassee is Legal
Counsel for one of the companies being discussed this evening. Vice Mayor Jacquet
stated this does not benefit him in anyway.
Commissioner Gray disclosed that her daughter does not live at Auburn
Trace and has not lived at The Villages at Delray in over 1'/z years.
Jack Warner, Interim Finance Director, stated this item is on the agenda
per the request of the partners at Auburn Trace as a courtesy to them. Mr. Warner stated
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staff received this request yesterday afternoon so staff did not have sufficient opportunity
to do enough analysis to provide the Commission with any recommendation other than
the one that staff has provided. Mr. Warner stated that recommendation is that they have
the opportunity to sit down with the partners to work through their proposal to be sure
they understand it, to work with them to develop alternatives, and to do the analysis that
would be the basis for the recommendation to the Commission. Mr. Warner stated since
the City Commission had a previous discussion on this and had they asked him, he would
have informed them that he was the one that requested that this item be pulled from the
original agenda.
Cito Beguiristain, Auburn Development,_777 East Atlantic Avenue,
Delray Beach, FL 33483 (applicant), stated Auburn Development considers this to be
an incredible opportunity to further the redevelopment plan of the Southwest
Neighborhood. Mr. Beguiristain stated they are current with all their mortgages and
debts with the City of Delray Beach and Auburn Development made a $300,000.00
payment in January. Therefore, Mr. Beguiristain stated there are no past due funds
currently with the City of Delray Beach. Mr. Beguiristain stated this particular loan
modification is something Auburn has been working on with staff prior to the new
Interim Finance Director starting. In 2012, Mr. Beguiristain stated the City of Delray
Beach hired an expert on affordable housing to do an analysis of this loan and they
provided their recommendations to Auburn as to how they felt it was structured. Mr.
Beguiristain stated part of those recommendations is what Auburn is requesting which is
a conversion of the loan from a hard pay note to a soft pay note and a lump sum payment
at closing. He stated the current Interim Finance Director and City Manager may have
not had the opportunity but City staff has been working with Auburn for more than two
(2) years back and forth in terms of ideas/concepts. Mr. Beguiristain stated the reason
Auburn has requested that this be placed on the agenda is because Auburn has some very
tight timelines in terms of significant financing that has been committed to this
development to improve the property. Mr. Beguiristain stated the City adopted a
Southwest Neighborhood Plan several years ago to bring revitalization to Atlantic
Avenue and as part of that Plan the Auburn Development completed The Village at
Delray Development and in partnership with the City they brought in millions of dollars
for brick pavers at the intersections, parallel parking, lighting, and landscaping, etc. up
and down Auburn Avenue (S.W. 12th Avenue) from County contributions. Mr.
Beguiristain stated they are requesting to renovate the Village at the Park at Auburn
Trace. Mr. Beguiristain stated their financial partners at the Federal Government, State
Government, and in the Palm Beach County government have all decided that they are all
on board to renovate Auburn Trace and the Village at the Park. Mr. Beguiristain stated
the State of Florida has a commitment with Auburn to provide more than $10 million in
tax credits, the Palm Beach County Housing Finance Authority has approved the tax
exempt bond issuance to provide some financial support necessary, and the Federal
Home Loan Bank has committed a $500,000.00 grant. Mr. Beguiristain stated Delray
Beach has had tremendous success in the downtown area and some of that has trickled
into the Southwest area and there have been massive investments including the Villages
($30 million) and now the Housing Authority Development ($20-$30 million) and now
the Village at the Park development is expected to bring in $20 million into the area and
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03/18/14
is the largest contiguous tract with 152 homes. Mr. Beguiristain stated they plan to
totally renovate the units and briefly explained the design concepts and the life safety
improvements and CPTED (Crime Prevention Through Environmental Design) more
than $10 million worth of investments. He stated between the Federal, State, and Palm
Beach County is bringing over $10 million and the private sector is bringing another $10
million but in order to bring this to fruition for these low income families (those who earn
between $25,000-$49,000) and what happens to be the only "qualified census track" in
Delray Beach (areas where incomes have not risen in ten years) is that the City of Delray
Beach approve this loan modification. Mr. Beguiristain stated Auburn requests the
following: (1) that Auburn pays the City of Delray Beach$1,050,000.00 now, (2) convert
the loan from what is currently a "hard pay" (paying $150,000 per year to the City no
matter what) to a "soft pay" which means depending on the cash flow in order to make
the payment. Mr. Beguiristain stated Auburn is not asking to forgive the $4 million loan
but explained that Auburn wants to remain responsible for the entire loan and pay the
City $1,050,000.00 now and the only difference is that after the initial seven (7) years
that the City is getting an advance now the loan would become "soft'' which means it is
cash flow dependent. Mr. Beguiristain stated if for some reason the property did not
make the $150,000.00 that year in cash flow then=Auburn would pay the City of Delray
Beach less if there were not the cash to pay it; however, Mr. Beguiristain stated that is
eight(8) years out. He stated if the City were to see somehow that the cash flow was not
there and they saw a small decrease in the City's payments in year 8, 9, 10, and 12, that
$20,000 or $30,000 is not lost because it is added onto the loan and does not get forgiven.
Mr. Beguiristain stated the City gets $20 million of investment in the Southwest
neighborhood. Mr. Beguiristain stated the residents deserve this investment from the
Federal government and Palm Beach County loans are structured like this because this is
what affordable housing requires and Auburn was the first company in the State of
Florida to develop tax credit affordable housing and won an award with the City of
Delray Beach's assistance from the National Association of Homebuilders for this project
for the finest affordable housing in the country a little over 20 years ago. He stated some
of the things they have now learned with affordable housing they have learned to build
big reserves into their budgets so if there is a maintenance issue or need to make an
investment there would be replacement reserves. Mr. Beguiristain stated the foreclosure
ratio of affordable housing since they have improved it nationwide has dropped to under
.02%. He stated this is an opportunity to take 20 acres of the Southwest neighborhood
and make it successful. Mr. Beguiristain stated this is a way to get the City money faster
and although in 8 years there is a chance that if there is no cash flow the City might get a
little less money but what the City is getting is leveraging what it might get less of that
$150,000.00 (maybe $120,000) for $20 million today in investment and $1 million cash.
Mr. Beguiristain stated Auburn is held to task by the State of Florida and by the County
and urged the City Commission to bring this $20 million investment into that community
and continue the revitalization that has already been started.
Vice Mayor Jacquet asked Mr. Beguiristain what the offer was in 2012
that the City gave Auburn and how does that compare to where we are today. In
response, Mr. Beguiristain stated the offer on July 12, 2012 was a bifurcation of the loan
was that the City of Delray Beach would get $600,000.00 versus $150,000.00 and
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03/18/14
$2,170,000.00 would be made "soft" along the lines of what has been discussed with this
deal and they would be coterminous with the first mortgage; and, the daycare would be
held separately and they would get $150,000.00 a year from the daycare providing the
payment and if not there were some other terms about Auburn buying and selling it back
and forth and that it would be "hard" from the daycare. Mr. Beguiristain stated it was a
version that they are offering today but was a version that did not work with their investor
partners.
For clarification, Mr. Warner, stated according to information the City
received from the bank Auburn is current on the two (2) loan payments that were causes
of default. However, Mr. Warner stated to the City's knowledge Auburn is still not
current on real estate taxes and they are not in compliance with another requirement of
the loan which is that the City receive all financial information from them that is also a
cause of default. Mr. Warner stated Auburn continues to be in default and confirmed that
when the Commission sees something in writing from staff it is accurate. Secondly, Mr.
Warner stated the City has been working for longer than two (2) years with the Auburn
Group on various proposals; the most recent was an August proposal which was to pay
off for $2 million the outstanding amount of loan principal and accrued interest which is
approximately $4 million and to his knowledge that was the item that was on the agenda
for this meeting. Mr. Warner stated to clarify the letter there is no loan forgiveness in
there, the City does get accelerated payments on the $150,000.00 a year interest but the
City is required simultaneously to make a $4 plus million loan. Therefore, Mr. Warner
stated looking at the cash there is $1 million in and $4 plus million out so the City will be
cash flow negative not only at the closing but then for the next eight (8) years when there
are no payments. Mr. Warner stated what "soft interest"means that the City has no right
to anything other than proceeds from the project that are left over after everyone involved
in the project is paid. Mr. Warner stated the letter from Auburn does not clearly state that
the proceeds of the new loan that the City would be making would be used to pay off the
old loan.
Mr. Warner stated the Community Redevelopment Agency (CRA) had an
agenda item on a February meeting to look at a loans of this type to Auburn Group and it
was slightly more positive than the terms being offered to the City of Delray Beach. The
interest was contingent; it was "soft" but there was a floor put under it. However, Mr.
Warner stated it was pulled from the agenda as the CRA indicated it was not something
that they wanted to go forward with at that time.
Mr. Jacquet stated there are legitimate concerns on both sides. Mr.
Jacquet stated if this does move forward that it does not go forward without the review of
the Finance Director and the Interim City Attorney. Mr. Jacquet suggested that there be
some measure or condition in there that would allow the Interim City Attorney and
Finance Director to take the time to review it and feel more comfortable with it.
Mr. Warner stated the way this is done in his experience is that at this
point they would sign a Memorandum of Understanding or a Letter of Intent which is an
agreement that indicates the two (2) parties like the looks of this but they both need to do
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some more analysis and agree to sit down together to work toward what would be a
definitive agreement. Mr. Warner stated there are equity participants and debt
participants and they have to do a lot of due diligence. Mr. Warner suggested that the
City Commission use a Letter of Intent approach and stated that it is their intent to go
forward with this project subject to appropriate review by both parties. Furthermore, Mr.
Warner stated there is a paragraph in a Letter of Intent that without regard to anything
else this is not binding on either party to anything other than talk, negotiate, and try to
come to a definitive transaction.
Mrs. Gray asked the applicant about their time constraints.
Mr. Beguiristain stated their existing first -mortgage term is up in a few
months so time is of the essence. In addition, Mr. Beguiristain stated they have some
deadlines in terms of the financing commitments that Auburn has from other agencies.
Mr. Beguiristain stated they are not requesting that the City come up with a new loan or
new cash but they are requesting to modify the existing loan and let it be assumed it into
the new structure of the partnership. Mr. Beguiristain stated Auburn is asking that the
City take $1 million on its existing loan now and the balance of the loan to modify it to a
"soft pay loan" along the terms that are mentioned. He stated that will allow them to
wrap up the rest of their financing ($20 million) that they want to bring to the table. Mr.
Beguiristain urged the City to agree to the following conditions: (1) that the City agrees
to the down payment ($1,050,000.00) now and (2) that the City will agree that the
balance of the existing loan will be modified from a"hard pay loan"to a "soft pay loan."
Mr. Beguiristain stated they can work out all the details, etc. with staff and he urged the
City to approve this now so the terms can be worked out to protect the City's interest.
Mr. Frankel asked if this does not pass is there a chance that the City
would get zero (0). Mr. Beguiristain stated there is a large chance that the City would get
zero (0).
Vice Mayor Jacquet asked how many years has Auburn owed this money
to the City. Mr. Beguiristain stated it has been a little over 20 years and during that time
Auburn made $150,000.00 a year payment; it was originally a$3.2 million grant from the
Federal Government to the City of Delray Beach and the City took the grant and loaned
the grant to the Auburn Group. He stated Auburn already paid back in principal
payments basically as much as the original grant was. Mr. Beguiristain stated the part the
City loaned to the Auburn Group from City taxpayers was repaid when they built the
Village at Delray so there are no City collected taxes that is in this loan agreement now.
Furthermore, Mr. Beguiristain stated it was a grant from the Federal Government that
came to the City of Delray Beach and was loaned to Auburn for the purpose of this
development. Mr. Beguiristain stated Auburn has paid $150,000.00 since the beginning
of this development and has made some lump sum payments to the City as well.
Mrs. Gray clarified with Mr. Beguiristain that Auburn and the City of
Delray Beach went to Washington specifically for this project.
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03/18/14
Mr. Beguiristain reiterated that Aubum is requesting to give the City of
Delray Beach $1,050,000.00 faster and to make the balance of it"soft" and allow them to
work out the details with staff and the City Attorney and nothing else.
Janice Rustin, Assistant City Attorney, stated Interim City Attorney Terrill
Pyburn is not present this evening and she did not have the opportunity to review the
proposal at all so the City Attorney's office is not able to provide any guidance on the
conditions that might limit the proposal because the City Attorney's office has not seen
the original proposal. Ms. Rustin stated as suggested by Mr. Warner that the City
Attorney's office draft a Memorandum of Understanding and that it be brought back
before the City Commission for their review and vote, and move forward in good faith.
The City Manager stated as indicated by Mr. Warner that the
Memorandum of Understanding e drafted first and then the actual agreement.
g �'
Mrs. Gray briefly discussed the agreement with the CRA and stated no
one appears to be concerned about affordable housing.
The City Manager stated they agree that the Auburn Group can make a
significant investment in that property and will hopefully not do anything to discourage
that investment; however, the City Manager stated the City wants to ensure that this is
according to reasonable financial standards and noted the City has not been a party to the
CRA structured loans.
Mr. Frankel stated no one complained about the outstanding $2.5 million
loan for the Arts Garage. Mr. Frankel stated he feels the only thing the City would
potentially miss out on is the interest.
Mr. Warner stated he informed the Commission of staff's preferred
conclusion and recommendations. In addition, Mr. Warner stated according to Mrs.
Butler is that with regard to the 1988 original agreement the City of Delray Beach
achieved its affordable housing objectives. Therefore, Mr. Warner stated the City is
dealing with a loan that should have been and was originally scheduled to be paid off in
fifteen (15) years. Mr. Warner stated the original transaction which had interest
forgiveness at the front end, payments at the back end, a loan from the City, a grant from
the City, third party lending, and equity from the partner was a great deal when it was put
together. Mr. Warner stated it is Auburn's non-performance and inability to generate
sufficient cash from the project from the beginning that has caused this to go through all
of the negotiations and re-negotiations. Mr. Warner stated this project started in the mid-
1990's and ran through a period of time that was the most positive housing market in the
history of this country where you could get money for housing falling off trees but for
j some reason the original $3.8 million loan now has an outstanding balance of $4.2
million. He stated two things happened over the last 25 years: (1) while there was a
great deal on paper the City has not done a good job with working with our partner to
ensure that they fulfilled their obligations and (2) the City should be very careful going
forward. Mr. Warner stated it is his responsibility to ensure that this is done in a way that
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is financially responsible for the City and Auburn. Mr. Warner stated sitting down
without preconditions working out a deal bringing some creativity to it and suggested
bringing more players to it would be better for the City and Auburn.
Mr. Warner stated this is an attractive property and transaction and
believes there are other lenders in addition to the City that could bring favorable terms to
the project.
Brief discussion between Commissioner Gray and Mr. Warner followed
regarding whether or not Auburn defaults. Mr. Warner stated he is not suggesting that
Auburn would default but feels the bank would step in if Auburn would default. Mr.
Warner stated he recommends that the Commission direct staff to go forward in open
negotiation and feels the two conditions narrow the possibilities for creativity so he
would not be in favor of those conditions.
Vice Mayor Jacquet stated affordable housing is a crisis in the city. Vice
Mayor Jacquet stated he understands the concerns of staff and he would like the Interim
City Attorney to review this and that the Finance Director continues to sit down with the
City's partners. However, Vice Mayor Jacquet stated he feels this needs to move forward
with what they are being presented with tonight because he feels that affordable housing
is a crisis. Vice Mayor Jacquet stated he does not want the Commission's decision to tie
the Interim City Attorney to where she cannot communicate with Auburn on what she
sees as wrong.
Mr. Frankel stated many upper levels of people are no longer with the city
anymore and the City cannot operate without the level of staffing. Mr. Frankel stated he
supports the conditions as stated by Mr. Beguiristain this evening.
Mrs. Gray stated if this is approved this evening she would like to make
sure that minority and local contractors are included in the hiring process by Auburn.
Mr. Beguizistain stated they will include a minimum of 30% Delray Beach contractors
and 25% plus minority contractors and he is willing to put this in writing as part of the
agreement.
Brian Hinners, Auburn Group, stated the $1,050,000.00 would come in at
the closing of the new partnership when the Auburn Group closes on the new financing
and urged the City Commission to approve this because they have been trying to get this
done for two years.
Mrs. Gray stated she would like to keep the three (3%) interest rate in the
agreement. Mr. Beguiristain stated they can keep the three (3%)interest accruing.
For the record, Mr. Warner stated the early payment of the interest that the
City is already owed which is $1,050,000.00 and there is no guarantee that the City will
receive that money; that money will only be received if all of the other financing activity
falls in place and the money will be received only where that financing activity falls into
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03/18/14
place. Mr. Warner stated he does not want the Commission to believe that the City has
$1,050,000.00 in our pockets.
Mrs. Gray tated if the other financing does not fall into lace
then the
Y g p
City does not get the $1,050,000.00 and the City does not have a deal anyway.
Mr. Warner stated he does not want the Commission to believe that the
City has $1,050,000.00 in its pockets now. Mr. Warner stated the City would get it over
a period of seven (7) years. Mr. Jacquet stated that is the same way it is right now. Mr.
Warner stated that means the City does not really get the $1,050,000.00 and reiterated
that his suggestion is that there may be better ways to do this.
Mrs. Gray asked Mr. Beguiristain how he is going to prevent and how the
City can be sure that the same thing that happened to Auburn Trace will not happen with
Village at the Park.
Vice Mayor Jacquet stated there is a suggestion from the applicant that if
the Commission wishes to move forward they can consider two of the issues which is (1)
that the City agree to the down payment ($1,050,000.00) now and (2) that the City will
agree that the balance of the existing loan will be modified from a "hard pay loan" to a
"soft pay loan" and leave any other issues within this item to be resolved by the partners
(the City of Delray Beach and Auburn). Vice Mayor Jacquet stated the Commission also
has the item in its totality before them and the City Commission can move to either
approve it or deny it as presented.
Janice Rustin, Assistant City Attorney, stated there was a third alternative
to direct staff to draft a Memorandum of Understanding (MOU) to be back before the
City Commission at their meeting of April 1, 2014 which outlines all of the conditions
satisfactory to the City Attorney's office so that they are definite. Ms. Rustin stated the
problem with the conditions that the applicant suggests is that it would make the
agreement indefinite and the agreement could fail because there would not be mutual
assent as no one would know what everyone is agreeing to. Ms. Rustin expressed
concern over the time limits on the conditions and if the conditions are not met, does the
agreement fail completely or does the City get to go back to the applicant and renegotiate.
Ms. Rustin stated there are so many variables and she implored the City Commission to
consider this option.
Mr. Frankel asked the applicant when the closing will be.
After brief discussion, Mr. Beguiristain stated they estimate that the
closing will be within six (6) months from today and getting the loan agreement
subsequently completed with the City Attorney. Mr. Beguiristain stated he would feel
more comfortable stating that the closing will be in one (1) year to allow them the time
they need to get plan approvals,permits, etc. and just in case something gets delayed.
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Mr. Frankel stated he would make a motion to approve based on receiving
the $1,050,000.00 by a time certain as the condition.; however, he feels that one (1) year
is a long time. Mr. Frankel suggested that the closing be in two (2) months. In response,
Mr. Beguiristain stated they cannot get everything they need done within that timeframe.
For the record, Mr. Beguiristain stated six (6) months from June 1, 2014 would be fine.
Mr. Frankel expressed concern over this amount of time being too long.
Ms. Rustin asked the applicant if the Memorandum of Understanding
(MOU) will satisfy the loan requirements. Mr. Beguiristain stated the lenders want to
know whether or not the City agrees to the two conditions so that they can begin moving
forward. Ms. Rustin suggested that in the Memorandum of Understanding (MOU) the
City would enter into an agreement by a date certain so that the City Attorney's office
would have the agreement where time is of the essence before the City Commission and
give the applicant enough time to continue to close on the loan. Ms. Rustin stated the
City Commission can give staff direction versus a motion.
Mr. Frankel stated he would like to do whatever gets the City the $1
million.
Mr. Jacquet expressed concern that the City is strapped for cash and there
is not enough affordable housing for residents who cannot afford to live here.
Ms. Rustin stated she can draft those concerns in the Memorandum of
Understanding (MOU), which can state that time is of the essence and these are the
important things. As a part of the baseline for this Memorandum of Understanding is that
staff is going to work really hard and really fast to get to the point where the applicant
can move forward and get the City our million dollars.
Mr. Frankel asked if this satisfies both parties. Mr. Beguiristain stated as
long as it is approved with the two (2) conditions he discussed earlier and also put in a
date certain in it that would be fine.
Vice Mayor Jacquet stated Commissioner Frankel's point is if he approves
the two (2) conditions he needs to know when the City is going to get the $1 million and
one (1) year is too long. Mr. Beguiristain stated that the payoff date will be December
15, 2014 that way the City will get the $1,050,000.00 in this year.
Mr. Frankel gave direction to the City Attorney's office to draft the
Memorandum of Understanding (MOU), the payoff date of December 15, 2014 as a
contingency, the "soft pay loan", and have minority contractor participation (percentages
as discussed by Commissioner Gray).
Mr. Beguiristain stated to approve the terms and basic principles approved
tonight and the rest they can work out with staff.
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03/18/14
Ms. Rustin suggested that all these conditions be drafted in the
Memorandum of Understanding (MOU)first so that all the conditions are outlined, and
then staff can bring the Memorandum of Understanding (MOU) back to the City
Commission at a later date versus the City Commission agreeing to the terms first and
then drafting the Memorandum of Understanding (MOU).
Mr. Hinners stated they would like to have the points approved this
evening by the City Commission that the $1,050,000.00 is acceptable and the "soft
second" terms so they can go back to their lenders and get this rolling. Mr. Hinners
stated the soft second would kick in year eight (8) and that is when it would turn into the
"soft second" because Auburn would be paying $1,050,000.00 upfront which is the
essentially the first seven (7) years of the current payments (7 years x $150,000.00)
which Auburn is paying upfront at closing. Mr. Hinners stated they can work out all the
legalities later but he does not want to be back here in two (2) years from now talking
about the same thing.
The City Manager explained that staff did not have this for two years;
Auburn presented the City with something and then backed off. The City Manager stated
although there have been offers and counter-offers that is part of negotiating. The City
Manager is requesting the Commission to do a process and have it go through the
Memorandum of Understanding (MOU) and to have that be a part of the negotiations and
opposed to something that is pre-set.
Ms. Rustin stated the worst case scenario is that if City Commission
approves this today, and you add conditions providing for City Attorney approval and
Finance Director approval and other conditions, if at any point any one of these
conditions is not fulfilled, then the entire agreement fails completely. A poorly drafted
condition can have that effect, and we don't want that to happen.
Mrs. Gray expressed concern that there is a possibility that the City would
not receive any money as of right now(i.e. no affordable housing).
Ms. Rustin asked Mrs. Gray whether this possibility would change in 10
days.
Mrs. Gray stated she would like the City to work things out with the
Auburn Group and does not believe this will happen if this goes past tonight because she
feels there are things and people who will make sure that affordable housing does not
exist in the City of Delray Beach. Mrs. Gray supports the conditions of moving forward
collecting $1,050,000.00 by December 15, 2014, the "soft pay loan", have minority
contractor participation and that maintenance issues on the property addressed.
For clarification Mr. Warner asked if the $1,050,000.00 is a guaranteed
payment or a contingent payment.
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Mrs. Gray stated if all the partners are not in place the City has no deal
anyway.
Ms. Rustin stated the City Attorney has not seen the agreement so she
cannot comment.
Vice Mayor Jacquet stated if the financing is not in place the City of
Delray Beach does not have a deal and the City will be back where they are right now out
$4 million still waiting for payment that the City has not received. Mr. Warner stated this
discussion is a perfect example of how this has dragged out and all negotiations is now on
hold until December 15, 2014. Mr. Warner stated what the Commission is saying is that
all other alternatives and negotiations are on hold until December 15, 2014 and he wants
to make sure the City Commission understands what they are asking staff to do. Mr.
Warner stated the closing is December 15, 2014 but until the closing occurs staff does not
know if the agreement that the City Commission is proposing to vote on will come to
fruition.
Vice Mayor Jacquet asked what the City will lose if the agreement does
not come to fruition. Mr. Warner stated the City will lose 8%2 months of opportunity to
move forward on all the other issues that are associated with this which might include
other refinancing opportunities.
Mrs. Gray moved to approve the $1,050,000.00 by December 15, 2014
contingent upon the investment partners, a "soft pay loan", meeting the minority and
local percentage rate(30% for local and 25% for minority) and subject to the Interim City
Attorney's review and approval of the agreement, seconded by Mr. Frankel. Upon roll
call the Commission voted as follows: Vice Mayor racquet — Yes; Mr. Frankel — Yes;
Mrs. Gray—Yes. Said motion passed with a 3 to 0 vote.
11. FIRST READINGS:
A. None.
12. COMMENTS AND INQUIRIES ON NON-AGENDA ITEMS.
12.A. City Manner
The City Manager stated Robert A. Barcinski,Assistant City Manager, has
announced his retirement from the City of Delray Beach effective June 13, 2014.
Secondly, the City Manager stated the City is in its final stages of
recruiting for the Planning and Zoning Director; extended the Finance Director position
until June 28, 2014 because the position was posted in the GFOA (Government Finance
Officers Association) and gave that a little longer time period. The City Manager stated
he offered the position of Assistant City Manager to Francine Maglia who had a long
career with the Village of Wellington and is working on when she will begin.
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03/18/14
12.B. City Attorney -
Janice Rustin, Assistant City Attorney, thanked Commissioner Gray for
her years of service to the City of Delray Beach and for being very supportive of the City
Attorney's office.
12.C. City Commission
12.C.1. Mr. Frankel
Mr. Frankel stated the St. Patrick's Day Parade was great; however,
members of the Commission stated on numerous occasions that this would be a family
friendly parade. Mr. Frankel expressed concern that in the middle of the parade he saw a
truck advertising a gentlemen's club with performers passing out cards and beads and he
feels this is not right if it is indicated that it would be a family friendly parade. In
addition, Mr. Frankel stated he was told by a local business who wanted to have a Delray
Downtowner with their logo ride in the parade that they could but were informed it would
cost$10,000. Mr. Frankel stated this was a little disconcerting for him.
Secondly, Mr. Frankel stated he met today with Marjorie Ferrer and Laura
Simon about nighttime City staff especially during events that run at night. Mr. Frankel
stated Delray Beach is becoming a big metropolitan city and especially on weekends
there are issues with garbage and dumpster problems, etc.
Lastly, Mr. Frankel stated there is a direct conflict with the City
j Commission Organizational Meeting on March 27, 2014 which beings at 6:00 p.m. and
Savor the Avenue which begins at 5:30 p.m. Mr. Frankel stated he purchased a ticket for
32 East that particular night.
12.C.2. Vice Mayor Jacquet
Vice Mayor Jacquet applauds Commissioner Gray for her years of public
service and the many years of community involvement. He stated they have not always
agreed but she never gets disrespectful or attacked him personally. Vice Mayor Jacquet
stated Commissioner Gray is a business owner and has lived in Delray Beach almost her
entire life and it has been a pleasure and honor serving with her on the Commission and
urged her to stay involved.
12.C.5. Mrs. Gray
Mrs. Gray gave a few brief departing comments and thanked everyone for
supporting her and commended City staff for doing a wonderful job. Mrs. Gray stated
the City has received many awards over time which did not just happen within the last
year. She stated although sitting on the City Commission has been challenging at times
she feels that everyone has done an excellent job in helping to make the city what it is
today.
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03/18/14
There being no further business, Vice Mayor Jac uet declared the meeting
adjourned at 8:46 p.m.
Clerk
ATTEST:
YlCE M OR
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 March 18, 2014, which Minutes were formally approved and adopted by the City
Commission on May 6, 2014.
L
ity C,6;k
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.
25
03/18/14
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IN THE CITY COMMISSION
CHAMBERS OF THE CITY OF
DELRAY BEACH, FLORIDA
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REQUEST FOR EXTENSION OF FEBRUARY 7,2012 CITY COMMISSION
CONDITIONAL USE APPROVAL TO ALLOW OUTDOOR DINING AT NIGHT
FOR 27-43 S.SWINTON AVENUE
ORDER OF THE CITY COMMISSION
OF THE CITY OF DELRAY BEACH. FLORIDA
1. Tf iS request for extension of the; February 7,. 2012 City Commission
conditional use approval to allow outdoordining,at night in the OSSHAD district at 2743
S. Swinton Avenue has come.before,the City Commission On March 18, 2014.
2: The Applicant and City staff presented documentary evidence and
testimony to the City' Commission pertaining to the request for an extension of the
conditional use approval to allow outdoor dining at night for 2743 S. Swinton Avenue:
Ala of the evidence is a part of the record in this case. Required findings are made in
accordance with Subsection I.:
.I: LDR REQUIREMENTS:.
Pursuamt.to LDR Section 2.4.4(F) ;.Extensions, extensions may be granted to. a
project approval listed under Sections 2.4.4(F)(1)and (3)'pursuant to the following:.
(1:) General::
(a) A written regraest for an extension must have been received.by the
City at least forty-five (45):days prior to the expiration date;
(b) The letter must set forth the basis and reason for the extension;
(c) The extension shall be considered by the same body which:granted
the original approval;
(d) The extension, if` granted; shall be for eighteen months unless
otherwise stated;
The applicant submitted the subject extension request Concurrent`with. the Site
Plan Extension request on October 8, 2013. The applicant stated.that the reason for
the request is "due to the past economic events plus it was difficult to secure funding for
this project at that time. We have a new partner and this is no longer an issue.."' The
Regular Meeting March 18,2!014
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applicant has requested a.twenty-four (24) month extension; which;,if approved, would
extend the approval to February 7, N16.
Pursuant 'to. LDR' Section 2.4.4(F)(3), Extensions. 'No Construction, when the
project has not commenced construction; or construction has not been deemed.
substantial, the request for extension shall be.considered pursuant to the fallowing:
(a) The project. shall be. evaluated 'pursuant to the land development
regulations in effect at'the time of consideration of the extension. ,request
and shall:complywith such current requirements;
(b) Additional submittal information including a new-application and copies_ of
previously subm ittal material may be required,
(c) The granting body must make findings pursuant to 2.4:4(8)
(d)` The granting. body may impose additional conditions of approval pursuant
:to 2.4.4(0) to insure compliance with any applicable changes to
regulations or.changes in circumstances which have ',occurred since the
previous approval
The
project has not yet commenced, and therefore the extension request has
been reviewed in accordance with the criteria noted above. Those regulations
applicable to the outdoor diking have not been revised. since the approval. Any
regulations which have been revised since the- Site. Plan approval were reviewed.
accordingly with the Site Plan extension request. LDR Section 2AA(B) requires that
certain findings be made as set forth in Article 3;'1 of the LDRs. These required findings
with respect to consistency with the Future land Use Map, Concurrency, Consistency,.
and Compliance. with the LDRs were all applied to the Site Plan Application; and
positive findings were made. Those condi ons Waved- fit tfje onginal request remain
valid and should continue to be applied to the approval as fhey address concerns,
regarding parking and hours of operation.
Should the request' for extension of the February 7, 2012 conditional use
approval be, granted for 27-43 S. Swinton Avenue until February 7, 2011;_
pursuant to LDR Sections 2AA(F)(1) and (3)7
Yes .3 No 0
3. The comments and: notes set forth in.. the staff report are hereby
incorporated herein
A. The. City. Commission has applied the Comprehensive Plan and LDR
requirements inexistence at the time the conditional use.request was submitted.
2 RegularMeting March 18,-2014
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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 be'fore.it, the City Commission approves
.denies the request for extension of 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 18th day of March,,2014/by a vot Savor
of approval and 0 opposed:.
spn J:ac, '-et, Vzc" e. PIayor
ATTEST'_
IChevelle`Wbin
City/ Clerk
Regular Meeting,March 18,2614
EXHIBIT A.
REQUEST FOR EXTENSION OF THE FEBRUARY 7, 2012 CITY COMMISSION
CONDITIONAL.USE APPROVAL TO ALLOW OUTDOOR DINING AT NIGHT
FOR 27-43 S.,SWINTON AVENUE.
1. That the Outdoor Dining seating not be expanded in auantlty or floor area from
what is indicated on the submitted plan;
2. That a Sidewalk :Cafe permit be obtained which indicates no more than the
twelve seating areas and 42 seats indicated on the submitted plans;
3. That the Valet Paring Agreement for be accepted bythe City Commission prior
to issuance of a Building Permit; and,
4. That a Parking Management:Plan be submitted which indicates.all travel routes
for the valet services to and from the;subject location;and,..
5- That. al outside seating areas subject to this approval shall have hours of
operation not exceeding 1.2am, Sunday through Thursday, and tam, Friday and
Saturday..
Regular Melling March 15,2014