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01-12-93 JANUARY 12, 1993 A Regular Meeting of the City Commission of the City of Delray Beach, Florida, was called to order by Mayor Thomas E. Lynch in the Commission Chambers at City Hall at 6:05 P.M., Tues- day, January 12, 1993. 1. Roll call showed: Present - Commissioner Jay Alperin Commissioner Ken Ellingsworth Commissioner Armand Mouw Commissioner David Randolph Mayor Thomas Eo Lynch Absent - None Also present were - City Manager David T. Harden and City Attorney Jeffrey S. Kurtz 2. The opening prayer was delivered by Chaplain Richard Evans, Abbey Delray South. 3. The Pledge of Allegiance to the flag of the United States of America was given. 4. Mayor Lynch noted a change in the wording of Item No. 12.B. (Ordinance No. 3-93). The City Manager requested that Items No. 8oM. and 8.T. be withdrawn from the Consent Agenda. He also noted that Items No. 9.Q and 9.R. have been added to the Regular Agenda. Mayor Lynch requested that Items No. 8oL. and 8.J. on the Consent Agenda be moved to the Regular Agenda as Items No. 9.A. 2. and 9.A.3., respectively. The City Manager requested that Item 9.L. on the Regular Agenda be moved forward on the Regular Agenda as Item No. 9.A.4. Dr. Alperin moved for approval of the Agenda, as amended, seconded by Mr. Randolph. Upon roll call the Commission voted as follows: Mr. Mouw - Yes; Dr. Alperin - Yes; Mr. Ellingsworth - Yes; Mr. Randolph - Yes; Mayor Lynch - Yes. Said motion passed with a 5 to 0 vote. Mr. Randolph moved for approval of the Regular Meeting minutes of November 24, 1992, seconded by Mr. Ellingsworth. Upon roll call the Commission voted as follows: Dr. Alperin - Yes; Mr. Ellingsworth - Yes; Mr. Randolph - Yes; Mayor Lynch - Yes; Mr. Mouw - Yes. Said motion passed with a 5 to 0 vote. Dr. Alperin moved for approval of the Regular M~eting minutes of December 1, 1992, seconded by Mr. Ellingsworth. Upon roll call the Commission voted as follows: Mr. Ellingsworth - Yes; Mr. Randolph - Yes; Mayor Lynch - Yes; Mr. Mouw - Yes; Dr. Alperin - Yes. Said motion passed with a 5 to 0 vote. Dr. Alperin moved for approval of the Regular Meeting minutes of December 8, 1992, seconded by Mr. Ellingsworth. Upon roll call the Commission voted as follows: Mr. Randolph - Yes; Mayor Lynch - Yes; Mr. Mouw - Yes; Dr. Alperin - Yes; Mr. Ellingsworth - Yes. Said motion passed with a 5 to 0 vote. Dr. Alperin moved for approval of the Special Meeting minutes of December 16, 1992, seconded by Mr. Mouw. Upon roll call the Commission voted as follows: Mayor Lynch - Yes; Mr. Mouw - Yes; Dr. Alperin - Yes; Mr. Ellingsworth - Yes; Mr. Ran- dolph - Yes. Said motion passed with a 5 to 0 vote. Proclamations. 6.A. Mayor Lynch read and presented a proclamation proclaim- ing January 18, 1993, as "Martin Luther King, Jr. Day". Spencer Pompey and Pam Kovacs came forward to accept the proclamation. 6,B. Mayor Lynch proclaimed the period of January 25 through January 29, 1993, as "Teller Appreciation Week" in recognition of service provided by tellers of financial institutions. 6.Q. ~Mayor Lynch~read and presented a proclamation recogniz- ing and commending Mr. George P. Oslin for a remarkable contri- bution (at the age of 93 years) in publishing "The Telecommunications Story" Mr. Oslin was present to accept the proclamation and presented a copy of his book to the City Commission for inclusion at the Delray Beach Public Library. 7, Presentations. NONE. The following items were considered by the Commission as the Consent Agenda: CONSENT AGENDA 8,A, Resolution NQ. 5-95. Resolution No. 5-93, vacating and abandoning a portion of the 16-foot alley right-of-way located on the west 16 feet of Block 73, Town of Linton, adjacent to the Publix Shopping Center in Pineapple Grove, is before the Commis- sion for consideration. Approval is recommended. The caption of Resolution No. 5-93 is as follows: A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, VACATING AND ABANDONING A PORTION OF THE 16 FOOT ALLEY RIGHT-OF-WAY LOCATED ON THE WEST 16 FEET OF BLOCK 73, TOWN OF LINTON (NOW DELRAY BEACH); ACCORDING TO THE PLAT THEREOF RECORDED IN PLAT BOOK 12, PAGE 62, PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA, AND BEING MORE PARTIC- ULARLY DESCRIBED HEREIN. 2 1/12/93 8.B. Final Pl~t Approval. The Commission is to consider approval of the final plat for the Cason Methodist Church located at the southwest corner of N. Swinton Avenue and N.W. 4th Street. Approval is recommended. 8.C. Waiver of Perimeter Landsc~p~ Requirements/Computer Parts. The Commission is to consider waiving LDR Section 4.6.16(H)(3)(e) to permit the elimination of the boundary land- scape buffer along the south property line for Computer Parts located on the east side of S.E. 1st Avenue, south of Atlantic Avenue. Approval is recommended. 8.D. Waiver of Perimeter Landscape Requir~ment~/Elwoods Bar-B-Oue. The Commission is to consider waiving LDR Sections 4.6.16(H)(3)(a) and 4.6.16(H)(3)(j) for Elwoods Bar-B-Que located at the northeast corner of Atlantic Avenue and N.E. 3rd Avenue (old Flamingo Gasoline Station). Approval is recommended. 8,E. Deletion of Project From CBD Alleyway Improvement Project. The Commission is to consider the deletion of a 16-foot alley, located just south of the Cason Methodist Church parallel to and~between N..Swinton ~Avenue and N.W. 1st Avenue in Block 57, from .the CBD Alleyway Improvement Project. Approval is recom- mended. 8,F, Ratification of Corrective Chang$8 $0 the Community Redevelopment Agency Plan. The Commission is to consider ratify- ing changes to the CRA Plan adopted on December 1, 1992. Ratifi- cation is recommended. 8.G. Temporary Use Agreemen~ with Palm Beach County. The Commission is to consider approval of a temporary use agreement with Palm Beach County for the use of parking facilities located at the northwest corner of S.W. 1st Avenue and to use the parking lot at 200 W. Atlantic Avenue, South County Courthouse, in con- junction wit the Virginia Slims Tournament. Approval is recom- mended. 8.H. Temporary Use Agreemsnt wish Palm Be~Qh CQunty. The Commission is to consider approval of a temporary use agreement with Palm Beach County to use Lake Ida Park West for parking in conjunction with the Virginia Slims Tournament. Approval is recommended. 8.I, Commercial/Industrial Load Control Program Agreement. The Commission is to consider approval of the Commercial Indus- trial Load Control Program Agreement with Florida Power and Light for North and South Repump Stations located at 200 N.W. 1st Avenue and 500 S. Swinton Avenue, respectively. Approval is recommended. 8,J. MOVED TO REGULAR AGENDA AS ITEM NO, 9.A,3. -3- 1/12/93 8,K, Amgndmgnt to the ~eneral Fun~. The Commission is to consider approval of an amendment to the General Fund to reflect savings resulting from recalculation of the General Employee Retirement Fund. Approval is recommended. 8,L, MOVED TO REGULAR A~ENDA AS ITEM NO, 9,A.2, 8,M. WITHDRAWN. 8.N. Emergency Repair. The Commission is to consider ap- proval of the award of bid to Ocean Bay Construction, Inc., in the amount of $38,475 for the emergency installation of a new eight-inch water main to connect Sabal Lakes Subdivision with Rainberry Bay, with funding from Water and Sewer Fund - Water Mains (Account No. 441-5161-536-63.50). Approval is recommended. 8.0. Change Order No. 1/Wynn and Sons. The Commission is to consider approval of a change order which modifies the contract for Lift Station No. 86 located on Barwick Road, by adjusting the completion date to August 17, 1993, due to delays by the Palm Beach County School Board in constructing off-site improvements. Approval is recommended. 8,P. Rejection of Bid~ and Authorization tO R~id/$~ni~ary Sewer Rehabilitation Project. The Commission is to consider the rejection of bids received for the Sanitary Sewer Rehabilitation Project as being non-responsive and authorize staff to rebid the project. Approval is recommended. 8,Q. Deduct Change Order and Request for Final Payment. The Commission is to consider approval of a deduct change order in the amount of $59,021.56 for final plus/minus as-built quantities and a request for final payment from Dutch Construction Company in the amount of $21,013.48 for completion of the Atlantic Avenue (I-95 to Swinton) Beautification Project, with funding from Decade of Excellence Bond Issue - Atlantic Avenue Beautification (Account No. 225-4141-572-51.49). Approval is recommended. 8.R, Deduct Chang~ Order NO. 4/Molloy Brothers. Inc, The Commission is to consider approval of a deduct change order in the amount of $74,515.78 for final plus/minus as-built quantities for the N.W. Drainage Outfall Project. Approval is recommended. 8.S. Request to the Board of County Commissioners. The Commission is to consider submitting a request to the Board of County Commissioners with regard to the South County Manatee Protection Plan. Approval is recommended. 8.T. WITHDRAWN. 8.U. Resolution No. 1-95. Resolution No. 1-93, assessing costs for abatement action required to demolish an unsafe struc- ture at 48 1/2 N.Wo 3rd Avenue,~ is before the Commission for consideration. Approval is recommended. -4- 1/12/93 8,U, Resolution No. 1-93. Resolution No. 1-93, assessing costs for abatement action required to demolish an unsafe struc- ture at 48 1/2 N.W. 3rd Avenue, is before the Commission for consideration. Approval is recommended. The caption of Resolution No. 1-93 is as follows: A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, PURSUANT TO CHAPTER 165, OF THE CODE OF ORDINANCES OF THE CITY OF DELRAY BEACH, ASSESSING COSTS FOR ABATEMENT ACTION REGARDING AN UNSAFE BUILDING ON LAND(S) LOCATED WITHIN THE CITY OF DELRAY BEACH; SETTING OUT ACTUAL COSTS INCURRED BY THE CITY TO ACCOMPLISH SUCH ABATEMENT AND LEVYING THE COST OF SUCH ACTION; PROVIDING FOR AN EFFECTIVE DATE AND FOR A DUE DATE AND INTEREST ASSESSMENTS; PROVIDING FOR THE RECORDING OF THIS RESOLUTION, AND DECLARING SAID LEVY TO BE A LIEN UPON THE SUBJECT PROPERTY FOR UNPAID ASSESSMENTS; PROVIDING FOR THE MAILING OF NOTICE. (Copy of Resolution No. 1-93 is on file in the official Resolution Book) 8.V, Resolution NO. 2-93. Resolution No. 2-93, assessing costs for abatement action required to board up an unsafe struc- ture at 401Southridge Road, is before the Commission for consid- eration. Approval is recommended. The caption of Resolution No. 2-93 is as follows: A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, PURSUANT TO CHAPTER 165, OF THE CODE OF ORDINANCES OF THE CITY OF DELRAY BEACH, ASSESSING COSTS FOR ABATEMENT ACTION REGARDING AN UNSAFE BUILDING ON LAND(S) LOCATED WITHIN THE CITY OF DELRAY BEACH; SETTING OUT ACTUAL COSTS INCURRED BY THE CITY TO ACCOMPLISH SUCH ABATEMENT AND LEVYING THE COST OF SUCH ACTION; PROVIDING FOR AN EFFECTIVE DATE AND FOR A DUE DATE AND INTEREST ASSESSMENTS; PROVIDING FOR THE RECORDING OF THIS RESOLUTION, AND DECLARING SAID LEVY TO BE A LIEN UPON THE SUBJECT PROPERTY FOR UNPAID ASSESSMENTS; PROVIDING FOR THE MAILING OF NOTICE. (Copy of Resolution No. 2-93 is on file in the official Resolution Book) 8.W. Resolution NO. 3-93. Resolution No. 3-93, assessing costs for abatement action required to demolish an unsafe struc- 5 1/12/93 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, PURSUANT TO CHAPTER 165, OF THE CODE OF ORDINANCES OF THE CITY OF DELRAY BEACH, ASSESSING COSTS FOR ABATEMENT ACTION REGARDING AN UNSAFE BUILDING ON LAND(S) LOCATED WITHIN THE CITY OF DELRAY BEACH; SETTING OUT ACTUAL COSTS INCURRED BY THE CITY TO ACCOMPLISH SUCH ABATEMENT AND LEVYING THE COST OF SUCH ACTION; PROVIDING FOR AN EFFECTIVE DATE AND FOR A DUE DATE AND INTEREST ASSESSMENTS; PROVIDING FOR THE RECORDING OF THIS RESOLUTION, AND DECLARING SAID LEVY TO BE A LIEN UPON THE SUBJECT PROPERTY FOR UNPAID ASSESSMENTS; PROVIDING FOR THE MAILING OF NOTICE. (Copy of Resolution No. 3-93 is on file in the official Resolution Book) 8.X. Resolution No. 4-93. Resolution No. 4-93, assessing costs for abatement action required to remove nuisances on 17 properties located within.the City, is before .the ~Commission for -consideration. ~Approval is recommended. The caption of Resolution No. 4-93 is as follows: A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, PURSUANT TO CHAPTER 100 OF THE CODE OF ORDINANCES OF THE CITY OF DELRAY BEACH, ASSESSING COSTS FOR ABATING NUISANCES UPON CERTAIN LAND(S) LOCAT- ED WITHIN THE CITY OF DELRAY BEACH AND PRO- VIDING THAT A NOTICE OF LIEN SHALL ACCOMPANY THE NOTICE OF ASSESSMENT; SETTING OUT ACTUAL COSTS INCURRED BY THE CITY TO ACCOMPLISH SUCH ABATEMENT AND LEVYING THE COST OF SUCH ABATE- MENT OF NUISANCES; PROVIDING FOR AN EFFECTIVE DATE AND FOR A DUE DATE AND INTEREST ON ASSESSMENTS; PROVIDING FOR THE RECORDING OF THIS RESOLUTION, AND DECLARING SAID LEVY TO BE A LIEN UPON THE SUBJECT PROPERTY FOR UNPAID ASSESSMENTS. (Copy of Resolution No. 4-93 is on file in the official Resolution Book) 8.Y. Retention of Outside Counsel. The Commission is to consider authorizing the City Attorney's office to retain Attor- ney Scott Mager, Esq. of Wienstein, Zimmerman and Nussbaum to represent Officers William Wagner and Glenn Goss in the Randall Shaw vs. William Wagner and Glenn Goss litigation. 8.Z. Award of Bids and Contracts. -6- 1/12/93 represent Officers William Wagner and Glenn Goss in the Randall Shaw vs. William Wagner and Glenn Goss litigation. ~.Z. Awsrd of Bids and Contracts. 1. South Water Reservoir Rehabilitation - Elkins Constructors, Inc., in the amount of $746,000 with funding from Water and Sewer Renewal and Replacement - South Reservoir Rehab (Account No. 442-5178-536-61.80), pending budget transfer. 2. Moveable Wall Partitions - Pompey Park - Gulfstream Shutters, Inc., in the amount of $10,950 with funding from General Construction Fund - Renewal and Replace- ment Office Furniture/Fixtures (Account No. 334-6112-519-64.10. 3. Toro Groundsmaster Mower - Parks and Recreation - Hector Turf in the amount of $12,615.78 with funding from Cemetery Fund - Perpetual Care - Equipment Other (Account No. 667-4511-539-64.90). 4. Toro Reelmaster Mower - Golf Course - Hector Turf in the amount of $19,639.44 with funding from Golf Course - Other Equipment (Account No. 445-4761-572-64.90) 5. Housing Rehabilitation Awards - Various vendors and in the amounts indicated below with funding from CDBG Housing Rehab. (Account No. 118-1963-554-49.19): 510 S.W. 9th Street - Preston Construction 817,215 313 N.W. 5th Avenue - Intercontinental Const. $19,935 323 N.W. 6th Avenue - Intercontinental Const. $16,343 6. Rehabilitation of Sanitary Sewers in Systems 17 and 18 - Environmental Services - Insituform in the amount of $240,000, with funding from Water and Sewer Renewal and Replacement - Manhole Rehabilitation (Account No. 442-5178-536-61.84). Dr. Alperin moved for approval of the Consent Agenda as amended, seconded by Mr. Ellingsworth. Upon roll call the Com- mission voted as follows: Mr. Mouw - Yes; Dr. Alperin - Yes; Mr. Ellingsworth - Yes; Mr. Randolph - Yes; Mayor Lynch - Yes. Said motion passed with a 5 to 0 vote. REGULAR AGENDA 9.A.4,(9.L.) Change Order NQ, 1/$,I. NichQi~s. In~. The Com- mission is to consider approval of a change order in the amount of $17,351.04 for miscellaneous changes for the Fire Station Headquarters Project, with funding from 1992 Bond Anticipation Note - Central Fire Station (Account No. 227-2311-522-61.56/$12,160.51) and Water and Sewer Renewal and Replacement - Fire Hydrant Replacement (Account No. 442-5178-536-61.77/$5,190.53). City Manager recommends approval. -7- 1/12/93 After discussion, Mr. Mouw moved for approval of Change Order No. 1 for S.I. Nicholas, Inc., for the main Fire Station, seconded by Mr. Randolph. Upon roll call the Commission voted as follows: Dr. Alperin - Yes; Mr. Ellingsworth - Yes; Mr. Randolph - Yes; Mayor Lynch - Yes; Mr. Mouw - Yes. Said motion passed with a 5 to 0 vote. 9.A.3.(8.J.) Funding Agreemen~ wi~h D~lr~y Beach Housinq Au- thority. The Commission is to consider approval of a funding agreement with the Housing Authority which provides for the release of $25,000 of Community Development Block Grant funding to be used to renovate the child care facility at Carver Estates; funding is available from CDBG - Childcare Center (Account No. 118-1976-554-82.09). Mayor Lynch questioned if Alpha-Time is a private organization or is it operated under the Housing Authority. Lula Butler, Director of Community Development, re- sponded that Alpha-Time is a non-profit organization that leases the facility from the Housing Authority. Mayor Lynch questioned why the Housing Authority does not.handle this themselves, to which the City Manager respomded that the Housing Authority owns the building and leases the space to Alpha-Time to operate a child care center for residents of the Housing Authority. Only very low income children are served. Upon question as to the effect of the recent cut, Ms. Butler advised they will be losing 30 slots. Mayor Lynch explained that last Friday HRS cut over 1100 children out of the program who will be unable to partici- pate until July of 1993, at which time it will be refunded. Dr. Alperin moved for approval of the funding agree- ment, seconded by Mr. Randolph. Upon roll call the Commission voted as follows: Mr. Ellingsworth - Yes; Mr. Randolph - Yes; Mayor Lynch - Yes; Mr. Mouw - Yes; Dr. Alperin - Yes. Said motion passed with a 5 to 0 vote. 9,A.2.(8.L.) Dismissal of Counterclaim/Kettelhut Vs City of Delray Beach. The Commission is to consider authorizing staff to dismiss the counterclaim in the Kettelhut vs. City of Delray Bech litigation. Mayor Lynch stated that he would like to go on record with the position that anyone who sues the City of Delray, hope- fully, will never be on a bid list again. He requested confirmation as to the legality of this from the City Attorney, who responded that he would look into it. Mr. Mouw moved for approval, seconded by Dr. Alperin. Upon roll call the Commission voted as follows: Mr. Randolph - No; Mayor Lynch - No; Mr. Mouw - Yes; Dr. Alperin - Yes; Mr. Ellingsworth - No. Said motion FAILED with a 3 to 2 vote. -8- 1/12/93 The City Attorney advised that he would proceed with the counterclaim against Mr. Kettelhut. 9,A. ~view of Appealable Land Development Actions of Vari- OU~ Bo~rd~. The Commission is to consider accepting the actions and decisions made by the Planning and Zoning Board, Site Plan Review and Appearance Board and the Historic Preservation Board during the period December 7, 1992 through January 8, 1993. Dr. Alperin moved to receive and file the report, seconded by Mr. Mouw. Upon roll call the Commission voted as follows: Mayor Lynch - Yes; Mr. Mouw - Yes; Dr. Alperin - Yes; Mr. Ellingsworth - Yes; Mr. Randolph - Yes. Said motion passed with a 5 to 0 vote. 9.B. Appeal of $i~e Plan Review and Appearance Board Deci- sion. The Commission is to consider an appeal of the SPRAB decision with regard to signage for Trails End Plaza. City Manager recommends denial. Alan Miller, Attorney representing Grace Everett, owner of Trails End Plaza, stated that to his knowledge there is nothing in the ~Sign Code that would prohibit his client from changing the wording of the sign, as long as the sign is not misleading. The City Attorney stated he would prefer to have an ordinance supporting the Board's position. At the present time there is no such ordinance, nor did the City have one at the time this matter came before the Board. If the Commission concurs with the decision of SPRAB, they should move toward the enactment of an ordinance to that effect. Upon question by Mr. Mouw regarding the color problem and the fact that SPRAB wanted the color to be black and white and the applicant wanted black and yellow, Mr. Allen responded that the colors were the same, the lettering was identical and there was no color problem. Jess Sowards, Vice-Chairman of SPRAB, commented that the Board requested that the existing identification sign remain as is. In reference to the color issue, the existing sign used black letters on a white background. When the applicant came in, the sign showed yellow letters on a black background. According to the existing LDRs, this is not consistent. Mr. Allen commented that the colors were the same. The issue was in reference to the words. When it becomes a matter of determining words that are misleading, there are Constitutional and State decisions on how far the City can go in restricting; and, without an ordinance, he feels that his client is at a disadvantage without knowing first what that ordinance is. -9- 1/12/93 Dr. Alperin stated it is his understanding that this Board has the power to set standards for appearance and some latitude as to those determinations with signs. The City Attor- ney advised that the question presented is an issue on which the City does not have an ordinance; and, that issue is that the name of the shopping center must be atop the sign. He feels it is possible to adopt an ordinance that would require that the plaza or shopping center be identified, should a client install one of these signs, and that the name of the Shopping Center will be given top billing. The City Attorney continued by advising that, to his knowledge no board has dealt with or given direction, with regard to this particular issue. Upon question by Dr. Alperin, Mr. Miller confirmed that the rental of Action Auto is contingent upon approval of the sign. Mr. Sowards stated that, according to Section 4.6.7(F) of the LDRs, "the colors of a sign shall not conflict with other signs already on the building or in the immediate vicinity" Mr. Allen advised that that had been stipulated. Mr. Mouw moved to approve the tenants' right to reword the sign as they see fit, as long as it is in keeping with the current LDRs that are in place at this time, seconded by Mr. Lynch (who passed the gavel in order to second the motion). Upon roll call the Commission voted as follows: Mr. Mouw - Yes; Vice-Mayor Alperin - No; Mr. Ellingsworth - Yes; Mr. Randolph - Yes; Mr. Lynch - Yes. Said motion passed with a 4 to 1 vote~ 9.C. Request for Conditional U~e Modification/AbbgY D~lr~y South. The Commission is to consider a request for conditional use modification to expand the existing Continuing Care Facility and Nursing Home at Abbey Delray South. City Manager recommends approval. Mr. Ellingsworth moved for approval of Conditional Use Modification for Abbey Delray South, seconded by Mr. Randolph. Upon roll call the Commission voted as follows: Dr. Alperin - Yes; Mr. Ellingsworth - Yes; Mr. Randolph - Yes; Mayor Lynch - Yes; Mr. Mouw - Yes. Said motion passed with a 5 to 0 vote. 9,D, Waiver of Perimeter Landscape and Irrigation Require- ments. The Commission is to consider a request for waiver of LDR Sections 4.6.16(H)(3)(d) and 4.6.16(F) from Coastal Revegetation, Inc., for property located at the northeast corner of Swinton Avenue and N.E. 2nd Street. Historic Preservation Board recom- mends approval of waiver of Section 4.6.16(H)(3)(d) and DENIAL of waiver of Section 4.6.16(F). Ms. Butler requested the Commission to consider requir- ing the irrigation on the private property, but not on the right-of-way until October of 1993, when the Swinton Beautifica- tion Project is completed. -10- 1/12/93 Pamela Reeder, applicant, stated the creation of envi- ronmentally sensitive habitat is their business and it is their hope that a beautiful and functional landscape can be created with no irrigation at all. If the City should be dissatisfied with this test project, the irrigation system would then be installed. Mayor Lynch commented he would be in favor of the waivers, subject to the condition that the right-of-way median be landscaped when requested by the City; and, should the City be unhappy with the results, the applicant will return at the City's request and install the irrigation to the satisfaction of the City. Mr. Ellingsworth moved for approval of the two waivers, subject to the conditions as outlined by Mayor Lynch, seconded by Mr. Mouw. Upon roll call the Commission voted as follows: Mr. Ellingsworth - Yes; Mr. Randolph - Yes; Mayor Lynch - Yes; Mr. Mouw - Yes; Dr. Alperin - Yes. Said motion passed with a 5 to 0 vote. Upon a request from Ms. Reeder for permission to set the clock after the DCA hearings, the Commission concurred. At this point the Commission moved to the duly adver- tised Public Hearings portion of the Agenda. PUBLIC HEARINGS 10,A, Ordinance No. 66-92. Ordinance No. 66-92, amending the title of Chapter 96 to "Fire Safety and Emergency Services" and repealing Section 96.16 and enacting a new Section 96.16 to adopt by reference portions of Florida Statutes Section 63.01, State Fire Marshal Rules and certain minimum National Fire Safety Codes; and, providing that a violation of the above named codes shall be deemed a violation of City ordinances in order to en- hance the enforceability of said codes, is before the Commission for consideration on Second and FINAL Reading. Prior to consid- eration of passage of this ordinance on Second and FINAL Reading, a public hearing has been scheduled to be held at this time. The City Manager presented Ordinance No. 66-92: AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELBAY BEACH, FLORIDA, REPEALING THE TITLE OF CHAPTER 96, "FIRE PREVENTION; FIRE- WORKS" AND ENACTING A NEW TITLE TO CHAPTER 96, "FIRE SAFETY AND EMERGENCY SERVICES" AND REPEALING SECTION 96.16, "CERTAIN CODES ADOPTED BY REFERENCE" OF THE CODE OF ORDI- NANCES OF THE CITY OF DELRAY BEACH, FLORIDA, AND ENACTING A NEW SECTION 96.16, "CERTAIN CODES ADOPTED BY REFERENCE" TO PROVIDE THAT UNIFORM FIRE SAFETY CODES, ESTABLISHED BY -11- 1/12/93 FLORIDA STATUTES SECTION 63.01, STATE FIRE MARSHAL RULES AS CONTAINED WITHIN FLORIDA ADMINISTRATIVE CODE RULE 4A, ALL AS SHALL BE REVISED OR AMENDED FROM TIME TO TIME, AND CERTAIN MINIMUM NATIONAL FIRE SAFETY CODES PRESCRIBED BY THE NATIONAL FIRE PROTECTION ASSOCIATION (NFPA) AS AMENDED HEREIN, SHALL BE INCORPORATED WITHIN THE CITY'S CODE OF ORDINANCES; PROVIDING THAT A VIOLATION OF THE ABOVE-NAMED CODES SHALL BE DEEMED A VIOLATION OF CITY ORDINANCES IN ORDER TO ENHANCE THE ENFORCEABILITY OF SAID CODES; PROVIDING A GENERAL REPEALER CLAUSE; PROVIDING A SAVING CLAUSE; PROVIDING AN EFFECTIVE DATE. (Copy of Ordinance No. 66-92 is on file in the official Ordinance Book) The City Attorney read the caption of the ordinance. A public hearing was held having been legally advertised in compli- ance with the laws of the State of Florida and the Charter of the City of Delray Beach, Florida. The .public hearing was closed. Mr. Randolph moved for the adoption of Ordinance No. 66-92 on Second and FINAL Reading, seconded by Dr. Alperin. Upon roll call the Commission voted as follows: Mr. Randolph - Yes; Mayor Lynch - Yes; Mr. Mouw - Yes; Dr. Alperin - Yes; Mr. Ellingsworth - Yes. Said motion passed with a 5 to 0 vote. 10.B. Ordinance No. 67-92. Ordinance No. 67-92, amending the Land Development Regulations by repealing and enacting a new Subsection 4.6.7(C)(5), "Banners and Wind Signs" to provide for the prohibition of banner signs and signs consisting of flags, pennants, ribbons, spinners, streamers or balloons; and, enacting a new Subsection 4.6.7(E) (8), "Flags" to provide for limiting the number and maximum size of flags on any one parcel of land, prohibiting the placement of flags within the right-of-way and to provide for the placement of flags during specific national holidays, is before the Commission for consideration on Second and FINAL Reading. Prior to consideration of passage of this ordinance on Second and FINAL Reading, a public hearing has been scheduled to be held at this time. The City Manager presented Ordinance No. 67-92: AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AMENDING SECTION 4.6.7 "SIGNS" OF THE LAND DEVELOPMENT REGULATIONS OF THE CODE OF ORDINANCES OF THE CITY OF DELRAY BEACH BY REPEALING SUB-SUBSEC- TION 4.6.7(C)(5) "BANNER SIGNS AND FLAGS" AND ENACTING A NEW SUB-SUBSECTION 4.6.7(C)(5), "BANNERS AND WIND SIGNS" TO PROVIDE FOR THE PROHIBITION OF BANNER SIGNS AND SIGNS CON- -12- 1/12/93 SISTING OF PENNANTS, RIBBONS, SPINNERS, STREAMERS, OR BALLOONS; BY ENACTING A NEW SUB-SUBSECTION 4.6.7(E)(8), "FLAGS", TO PROVIDE FOR LIMITING THE NUMBER OF FLAGS ON ANY ONE PARCEL OF LAND TO THREE FLAGS, PRO- HIBITING THE PLACEMENT OF FLAGS WITHIN PUBLIC RIGHTS-OF-WAY AND TO PROVIDE FOR THE PLACE- MENT OF FLAGS DURING SPECIFIC NATIONAL HOLI- DAYS; PROVIDING A REPEALER CLAUSE; PROVIDING A SAVINGS CLAUSE; PROVIDING AN EFFECTIVE DATE. The City Attorney read the caption of the ordinance. A public hearing was held having been legally advertised in compli- ance with the laws of the State of Florida and the Charter of the City of Delray Beach, Florida. The City Attorney stated that the Planning and Zoning Board considered this item on January 11, 1993, and there may be some changes. It is his understanding that this ordinance may go back to First Reading on January 26, 1993. David Kovacs, Planning Director, stated the first time this came before the Commission for First Reading, the Commission raised several points that needed to be looked at. Upon a re- view, other technical items were discovered that needed to be handled differently. Mr. Kovacs reviewed the proposals and the recommendations made by the Planning and Zoning Board, including the standard size of flags, type and permit fees. The City Attorney advised, if the Commission directs that the ordinance be redrafted and brought back for First Read- ing, there is no need for a Public Hearing at this time. Mr. Mouw moved that the ordinance be sent back to staff for rewriting and that it be brought back for First Reading as soon as possible, seconded by Dr. Alperin. Upon roll call the Commission voted as follows: Mayor Lynch - Yes; Mr. Mouw - Yes; Dr. Alperin - Yes; Mr. Ellingsworth - Yes; Mr. Randolph - Yes. Said motion passed with a 5 to 0 vote. Before roll call Mayor Lynch declared a recess, the time being 7:15 P.M.; the meeting reconvened at 7:35 P.M. Mayor Lynch announced that, when an issue has been dropped because the ordinance is being changed, there is nothing for the Commission to vote on; however, in fairness to the number of persons who have come to this meeting, he will allow three people to speak for three minutes. John Prescott, owner of the Shell Station, stated he is speaking in opposition to the current flag ordinance in the City. He requested that the existing ordinance be amended to exclude -13- 1/12/93 the American flag as it should be allowed to be displayed on any property at any time. Barry Silver, attorney, stated that his client, John Prescott, has been fined and he feels it is wrong to penalize him for his patriotism. In his opinion, the ordinance in its current form is unconstitutional. Rabbi Sam Silver stated he is speaking on behalf of the Jewish War Veterans, in addition to the American Legion, the DAV, the Veterans of Foreign Wars, the Catholic Veterans and for all those people who agree with the statement made by the distin- guished attorney. He feels this Country and this community could stand more patriotism and more loyalty to America than less. Frank MankowiSz, 909 Bond Way, expressed his opposition to charging a fee for the purpose of flying the American flag. At this time the roll was called to the motion. At this point Mayor Lynch declared a three (3) minute recess, in order to clear.the Chambers. 11. CommenSs and Inquiries on Non-Agenda Items from the public. Il,A, City Manager, ll.A,1, The City Manager reminded the Commission and the public that a Town Meeting is scheduled for Tuesday, January 19th at 7:00 P.M. in the auditorium at Old School Square. An Annual Report on the status of the Comprehensive Plan will be presented after which the Public will be invited to make comments. ll.B. From the Public, ll,B.1. Charles Ridley, on behalf of MAD DADS, thanked the City Commission for the attitude that the Commission has helped set in this community, specifically in the west section of Delray. The staff has worked very closely with MAD DADS, making it possible for a number of things to happen. At a recent meeting that was held with the citizens from 9th Avenue, several issues surfaced, as follows: a request to place lights on 9th Avenue, additional police surveillance and that dumpsters be moved to the rear of the apartment complex. In order to move the dumpsters, the alleyway had to be paved. All of these things are now underway, thanks to a lot of people. He expressed the hope that this good work will continue. ll.B.2. Lillian Feldman, resident, stated she feels it is a shame for anyone who is in business in Delray Beach to find it necessary to bring persons from out-of-town to speak for them and advise them of their rights; and further, that the City of Delray -14- 1/12/93 Beach has the right to say it does not want a "Honky-Tonk" look- ing town. She feels everyone present respects the American flag. ll.B,3, J~rry Marshall, resident, stated he has talked with a lot of people with regard to volunteering in the schools as tu- tors, aides, etc. He has received quite a response and, in turn, has sent volunteers to various schools. He would like everyone to know that people are needed and if anyone has a person in mind, please have them call. He will direct them to the proper location and the person to contact. He then offered his tele- phone number as 243-0007. ll.B.4. Jean Beer, 945 Tropic Boulevard, speaking on behalf of the people in the City, stated they are very grateful to the people who have organized MAD DADS and are delighted that it is proceeding and is so successful. She finds it disgusting that all the reporters are in the hall with a group of people who do not live within the City limits, do not attend Commission meet- ings and were not present to hear what the gentleman representing MAD DADS had to say. FIRST READINGS 12,A, Ordinance No. 1-93. Ordinance No. 1-93, rezoning a portion of Abbey Delray South from RL (Low Density Residential) zone district to CF (Community Facilities) zone district, is before the Commission for consideration on First Reading. If passed, Public Hearing will be held January 26th. The City Manager presented Ordinance No. 1-93: AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, REZONING AND PLACING LAND PRESENTLY ZONED RL (MULTIPLE FAMILY RESIDENTIAL - LOW DENSITY) DISTRICT IN CF (COMMUNITY FACILITIES) DISTRICT; SAID LAND BEING A PORTION OF ABBEY DELRAY SOUTH, AS MORE PARTICULARLY DESCRIBED HEREIN; AND AMENDING "ZONING DISTRICT MAP, DELRAY BEACH, FLORIDA, 1990"; PROVIDING A GENERAL REPEALER CLAUSE, A SAVING CLAUSE, AND AN EFFECTIVE DATE. The City Attorney read the caption of the ordinance. Mr. Ellingsworth moved for the adoption of Ordinance No. 1-93 on First Reading, seconded by Mr. Randolph. Upon roll call the Commission voted as follows: Mr. Mouw - Yes; Dr. Alperin - Yes; Mr. Ellingsworth - Yes; Mr. Randolph - Yes; Mayor Lynch - Yes. Said motion passed with a 5 to 0 vote. 12.B. Ordinance NO. $-93. Ordinance No. 3-93, amending the 5-year Schedule of Capital Improvements as contained in the Comprehensive Plan to accommodate a drainage capital improvement -15- 1/12/93 to replace collapsing storm sewers in Spanish Trail adjacent to Tropic Harbor, is before the Commission for consideration on First Reading. If passed, Public Hearing will be held January 26th. The City Manager presented Ordinance No. 3-93: AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AMENDING TABLE IV-3 OF THE CITY OF DELRAY BEACH COMPREHEN- SIVE PLAN, THE FIVE YEAR CAPITAL IMPROVEMENTS SCHEDULE FOR PROJECTS GREATER THAN 8100,000, ON AN EMERGENCY BASIS TO ACCOMMODATE A DRAIN- AGE CAPITAL IMPROVEMENT; PROVIDING FOR EXEMP- TION FROM THE TRANSMITTAL-AND-ORD PROCESS; PROVIDING A GENERAL REPEALER CLAUSE, A SAVING CLAUSE, AND AN EFFECTIVE DATE. The City Attorney read the caption of the ordinance. Mr. Mouw moved for the adoption of Ordinance No. 3-93 on First Reading, as amended, seconded .by Mr. Randolph. Upon ~roll call the. Commission voted as follows: Dr. Alperin - Yes; Mr. Ellingsworth - Yes; Mr. Randolph - Yes; Mayor Lynch - Yes; Mr. Mouw - Yes. Said motion passed with a 5 to 0 vote. 12.C, Ordinance No. 4-93. Ordinance No. 4-93, amending Subsection 6.1.10(B)(5), "Prohibition on Use of City Water for Irrigation" to provide for a prohibition on the installation of new private irrigation wells or reconditioning of existing pri- vate irrigation wells to a greater depth within Wellfield Protec- tion Zones 1 and 2 of the 20-Series Wellfield. City Manager recommends approval. If passed, Public Hearing will be held January 26th. The City Manager presented Ordinance No. 4-93: AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA AMENDING SEC- TION 4.5.5 "PALM BEACH COUNTY ORDINANCES", OF THE LAND DEVELOPMENT REGULATIONS OF THE CODE OF ORDINANCES OF THE CITY OF DELRAY BEACH, FLORIDA, BY AMENDING SUB-SECTION 4.5.5(B), "WELLFIELD PROTECTION ORDINANCE", TO PROVIDE FOR A PROHIBITION ON THE INSTALLATION OF NEW IRRIGATION WELLS OR RECONDITIONING OF EXIST- ING IRRIGATION WELLS TO A GREATER DEPTH WITHIN ZONES 1, 2, AND 3 OF THE SERIES 20 WELLFIELD AS INDICATED ON THE PALM BEACH COUNTY DEPARTMENT OF ENVIRONMENTAL RESOURCE MANAGEMENT'S APPROVED WELLFIELD MAP; PROVID- ING A REPEALER CLAUSE, A SAVINGS CLAUSE, AND AN EFFECTIVE DATE. -16- 1/12/93 The City Attorney read the caption of the ordinance. Mr. Mouw moved for the adoption of Ordinance No. 4-93 on First Reading, seconded by Mr. Ellingsworth. Upon roll call the Commission voted as follows: Mr. Ellingsworth - Yes; Mr. Randolph - Yes; Mayor Lynch - Yes; Mr. Mouw - Yes; Dr. Alperin - Yes. Said motion passed with a 5 to 0 vote. At this point the Commission returned to the remainder of the Regular Agenda~ 9,E, ~Qnsideration of Bid Award/M~ster Pump Station Project. The Commission is to consider the bids received for the Master Pump Station Project, waiving irregularities for the low bidder and awarding the contract for the Master Pump Station project. The City Manager stated a request has been received from the attorney for Utilities Services, Inc., that this item be delayed. The City Attorney stated it is his understanding that Utilities Services, Inc., the apparent low bidder, has filed a complaint for injunctive relief seeking an award of contract. There were omissions and errors within the bid document. The City can waive those irregularities; however the City is under no obligation to do this. The bid of Harry Pepper and Associates was executed perfectly and his office and staff recommends that the contract be awarded to this bidder and not waive the bidding irregularities of Utilities Services, Inc. Mr. Mouw moved to accept the recommendation of staff and award the bid to Harry Pepper and Associates, Inc., for the In-Line Booster Pump Station, seconded by Dr. Alperin. Upon roll call the Commission voted as follows: Mr. Randolph - Yes; Mayor Lynch - Yes; Mr. Mouw - Yes; Dr. Alperin - Yes; Mr. Ellingsworth - Yes. Said motion passed with a 5 to 0 vote. 9,F. Award of Bid/Drainage Imp~Qv~m~n~ - Tropic Har- bor/Spanish Trail. The Commission is to consider awarding the bid for Drainage Improvements - Tropic Harbor/Spanish Trail to Tiger Construction Services, Inc., in the amount of $198,865 with funding from Storm Water Utility - N.W. Drainage (Account No. 448-5411-538-62.11/$25,000), Germantown (Account No. 448-5411-538-62.15/8100,000), N.W. Drainage Phase I (Account No. 448-5411-538-62.16/$50,000), and Homewood Drainage (Account NO. 448-5411-538-63.31/$30,000). The indicated amounts will be transferred into Tropic Harbor Drainage (Account No. 448-5411-538-63.32). The City Manager commented that there is one matter related to this that he would like to bring to the attention of the Commission, wherein the system has been designed and bid with the air-conditioning cooling water being removed. If it should be left in, the system would not be large enough to handle the -17- 1/12/93 water flow, and the Tropic Harbor Condominium Association has been so informed. Ralph Hayden, City Engineer, recommended that Tropic Harbor be given a temporary discharge for a specified period until they are able to get their cooling towers on line. At that time they will be disconnected from the system, subject to certain conditions. Mr. Mouw moved for an award of the Drainage Improvement contract of Tropic Harbor to Tiger Construction Services, Inc., seconded by Dr. Alperin. Upon roll call the Commission voted as follows: Mayor Lynch - Yes; Mr. Mouw - Yes; Dr. Alperin - Yes; Mr. Ellingsworth - Yes; Mr. Randolph - Yes. Said motion passed with a 5 to 0 vote. .9.G. DirectiQn wi~h Regar~ tO Ballot Question for March 1995 Special Election. The Commission is to consider providing staff with direction with regard to calling for a Special Election on March 9, 1993 to consider the question of modifying the Decade of Excellence Bond issue for the S.W. 10th Street project. The City Manager stated that the Decade of Excellence provides funding for four-laning between Federal Highway and Wallace Drive. Traffic studies indicate the four-laning is needed between Wallace Drive and Congress Avenue, but that seg- ment was not included in the Decade of Excellence. The Commis- sion is requested to direct staff as to whether or not an issue or proposition is to be on the March ballot and ask the voters to grant authority to use a portion of the $2,000,000 for four- laning the section between Wallace Drive and Congress Avenue. Dr. Alperin expressed concern about originally misrep- resenting the fact that there was a need for widening that por- tion of the road. He feels that the referendum should be worded to grant the option of withdrawing the funding altogether and perhaps reducing the Bond and the potential millage, or to use it in another area. Mr. Mouw moved to direct staff to prepare an appropri- ate item to place on the March referendum, granting the Commis- sion permission to utilize the Decade of Excellence Bond money on 10th Street, but beyond Wallace Drive all the way to Congress Avenue, seconded by Mr. Randolph. Upon roll call the Commission voted as follows: Mr. Mouw - Yes; Dr. Alperin - No; Mr. Ellingsworth - Yes; Mr. Randolph - Yes; Mayor Lynch - Yes. Said motion passed with a 4 to 1 vote. 9.H, Change Order No. 1/Falkav, Inc.. and Allocation o~ Additional Funding. The Commission is to consider approval of a change order in the amount of $47,697.70 for miscellaneous chang- es for the Tennis Center project which includes, site and build- ing revision, tennis court revisions, tournament facilities additions and a fenced play area north of the Community Center as required by H.R.S., with funding from General Construction Fund - Tennis Center/Stadium (Account No. 334-4145-572-63.41) and allo- -18- 1/12/93 cation of additional funding in the amount of $250,000 from the CRA repayment to cover additional costs. City Manager recommends approval. Discussion followed with regard to the extra expenses, why they are just now surfacing and when they are going to end. Upon question, the City Manager responded that anything that would be charged against the CRA repayment would be in the nature of a change order and would come before the Commission. Mr. Mouw moved for approval of Change Order No. ! in the amount of $32,697.70 to Falkav, Inc., on the tennis facility, with the caveat that the City Manager must approve any expendi- tures from the $15,000 contingency allowance, seconded by Mr. Lynch (Mayor Lynch passed the gavel in order to second the mo- tion). Upon roll call the Commission voted as follows: Vice- Mayor Alperin - No; Mr. Ellingsworth - Yes; Mr. Randolph - Yes; Mr. Lynch - Yes; Mr. Mouw - Yes. Said motion passed with a 4 to 1 vote. 9,I. ~Addendum No. 1 to Service Au~hQrization No. 2/Lawson ~nd Nobl'~. The Commission is to consider approving an addendum in the net amount of $13,687, plus reimbursable expenses of $4,813 for engineering design services in conjunction with the Northeast/Northwest Road Reconstruction Project, with funding from Decade of Excellence Bond Issue - Street Reconstruction Phase I (Account No. 225-3162-541-61.17). The addendum also deletes construction administration services from the contract for a net savings of $17,412.60. City Manager recommends approv- al. The City Manager stated there is drainage work which needs to be done before the paving in some of the street recon- struction projects; this addendum authorizes the engineer to design the drainage. Mr. Mouw moved for approval, seconded by Dr. Alperin. Upon roll call the Commission voted as follows: Mr. Ellingsworth - Yes; Mr. Randolph - Yes; Mayor Lynch - Yes; Mr. Mouw - Yes; Dr. Alperin - Yes. Said motion passed with a 5 to 0 vote. 9,J, Change Order No. 2/Dees Contracting, In¢, The Commis- sion is to consider approval of a change order in the amount of $18,253.46 for miscellaneous structural repairs required on the Elevated Storage Tank, with funding from Water and Sewer Renewal and Replacement - Rehabilitation of 1/2 Million Gallon Elevated Tank (Account No. 442-5178-536-61.79/pending budget transfer from Project Reserves - Account No. 442-5178-536-99.01). City Manager recommends approval. The City Manager explained that since the elevated storage tank on S. Swinton has been painted, rust has developed on the bottom. Upon an investigation, it was learned that the -19- 1/12/93 rust is forming between the rivet head and the tank. The speci- fications did not require that the contractor seal those places; this change order will retain the services of the contractor again in order to get a long-lasting job. Discussion followed regarding this process and the fact that it was not discovered at the time the original repairs were made. William Greenwood, Director of Environmental Services, gave an account of the process of replacement. Dr. Alperin moved for approval of Change Order No. 2/Dees Contracting, Inc., seconded by Mr. Mouw. Upon roll call the Commission voted as follows: Mr. Randolph - Yes; Mayor Lynch - Yes; Mr. Mouw - Yes; Dr. Alperin - Yes; Mr. Ellingsworth - Yes. Said motion passed with a 5 to 0 vote. 9,K. Chang~ Order NO. 5/Molloy Brothers, Inc. The Commis- sion is to consider approval of a change order in the amount of $233,540 for the installation of storm sewers, utility upgrades and roadway reconstruction of N.W. 6th Avenue adjacent to the new Central Fire Station from Atlantic Avenue to N.W. 2nd Street and extending the contract completion date to March 5, 1993, with funding from Decade of Excellence Bond Issue (Account No. 225-3161-541-61.39/$146,965) and 1992 Water and Sewer Revenue Bond (Account No. 442-5178-536-61.79/$86,575). City Manager recommends approval. The City Manager commented that this will allow the installation of storm sewers and utility upgrades on N.W. 6th Avenue. This is a planned part of the northwest drainage project. Dr. Alperin moved for approval of Change Order No. 5, seconded by Mr. MOUWo Upon roll call the Commission voted as follows: Mayor Lynch - Yes; Mr. Mouw - Yes; Dr. Alperin - Yes; Mr. Ellingsworth - Yes; Mr. Randolph - Yes. Said motion passed with a 5 to 0 vote. 9~M, Change Order No. 2 and Request for Final Payment/Man CQn Inc. The Commission is to consider approval of a change order in the amount of $54,992.63 for final plus/minus as-built quantities and a request for final payment from Man Con, Inc., in the amount of $96,993.66 for completion of Former Enclaves (Germantown and Lake Ida Road) Water and Sewer Improvement Project, with funding from 1991 Water and Sewer Revenue Bond - Buildings (Account No. 447-5167-536-60.31). City Manager recom- mends approval. Mr. Mouw moved for approval of Change Order No. 2 to Man Con Inc., and a final payment in the amount of 96,993.66, seconded by Dr. Alperin. Upon roll call the Commission voted as follows: Mr. Mouw - Yes; Dr. Alperin - Yes; Mr. Ellingsworth - Yes; Mr. Randolph - Yes; Mayor Lynch - Yes. Said motion passed with a 5 to 0 vote. -20- 1/12/93 9.N, Change Or~er NQ, $ and ~eque~t fo~ Final Pay- men~/Gatew~v Construction Company. The Commission is to consider approval of a change order in the amount of 859,382.17 for final plus/minus as-built quantities and which extends the contract completion date by 48 days; and, a request for final payment from Gateway Construction Company in the amount of $122,093.76 for completion of Former Enclaves (N. Federal Highway) Water and Sewer Improvements Project, with funding from 1991 Water and Sewer Revenue Bond - Buildings (Account No. 447-5167-536-60.31). City Manager recommends approval. Discussion followed with regard to the incompetency, construction work that had to be done twice and the decision that this company will not be welcome to enter into the bid process for the City in the future. Dr. Alperin moved for approval of Change Order No. 3 to Gateway Construction Company, seconded by Mr. Mouw. Mr. Mouw questioned if Gateway Construction Company is to be paid a final payment with no retainage. Mr. Greenwood responded that, at this time, due to legal and Risk Management decisions, the answer is yes. However, there are two outstanding claims from two businesses related to the problem with Federal Highway. If the Commission would like to retain the two out- standing claims, that can be done with an attempt to get the contractor to settle with the property owners. Mr. Mouw suggest- ed retaining the claims, approving the change order and reducing the final payment between $9 and $10 thousand dollars. Upon question by Mr. Mouw, Mr. Greenwood stated con- tract terms on retainage is 10%. Mr. Mouw suggested that Gateway Construction Company be informed that the retainage is 10% and the City is going to hold it 90 to 120 days to ensure that all construction is operating properly; should they want to apply for a reduction in the retainage, the City will take it under consid- eration. Dr. Alperin amended his motion to incorporate the recommendation of Mr. Mouw; Mr Mouw amended his second. Upon roll call the Commission voted as follows: Dr. Alperin - Yes; Mr. Ellingsworth - Yes; Mr. Randolph - Yes; Mayor Lynch - No; Mr. Mouw - Yes. Said motion passed with a 4 to ! vote. 9,0. Cable Televi~iQn Rule Making. The Commission is to consider commenting on various proposed rules by the FCC effect- lng various aspects of cable television regulation. Mr. Mouw moved to stay out of this and have no comment, seconded by Mr. Ellingsworth. Upon roll call the Commission voted as follows: Mr. Ellingsworth - Yes; Mr. Randolph - Yes; Mayor Lynch - Yes; Mr. Mouw - Yes; Dr. Alperin - Yes. Said motion passed with a 5 to 0 vote. -21- 1/12/93 9,P. Settlemsnt Offer. The Commission is to consider ap- proval of an offer in the amount of $28,500 to settle Willie Nelson vs. the City of Delray Beach. City Attorney and Risk Manager recommend acceptance. Mr. Mouw moved for approval, seconded by Dr. Alperin. Upon roll call the Commission voted as follows: Mr. Randolph - Yes; Mayor Lynch - Yes; Mr. Mouw - Yes; Dr. Alperin - Yes; Mr. Ellingsworth - Yes. Said motion passed with a 5 to 0 vote. 9.0. Authorization tO Transfer Fundinq/Aero-Dri Settlement. The Commission is to consider approval of the transfer of funding in the amount of $250,000 from Water and Sewer Prior Year Surplus (Account No. 441-0000-301-41.00) to Water and Sewer - Legal Fees (Account No. 441-5111-536-31.00) to pay legal fees associated with the Aero-Dri litigation. Dr. Alperin moved for approval of the transfer of funding from the Water and Sewer accounts, seconded by Mr. Ran- dolph. Upon roll call the Commission voted as follows: Mayor Lynch - Yes; Mr. Mouw - Yes; Dr. Alperin - Yes; Mr. Ellingsworth - Yes; Mr. Randolph - Yes. Said .motion passed with a 5 to..0 vote. 9.R. Additional Items Re; Tgnnis Center/Stadium. The Commission is to consider waiving the provisions of the City's Competitive Bid Requirements and authorize the purchase of parti- tions, air conditioners, a public address system and rental of other necessary appurtenances, by negotiation using competitive quotes, where available, in conjunction with the Tennis Cen- ter/Stadium project. The City Manager advised this relates to various tempo- rary facilities which are needed for the tournament. He is requesting authority to purchase up to an amount of $34,284, for air-conditioning units, partitions and a sound system, and to enter into contracts to rent the tents and crowd pleasers (toilet units). He also requested permission to waive the sealed bid requirements for the items over $10,000. Mr. Randolph moved to declare an emergency existing with respect to the purchasing of items for the Tennis Tournament and waiving the City's purchasing ordinances as outlined in the memorandum dated January 12, 1993, from Joe Weldon to the City Manager, seconded by Mr. Mouw. Upon roll call the Commission voted as follows: Mr. Mouw - Yes; Dr. Alperin - Yes; Mr. Ellingsworth - Yes; Mr. Randolph - Yes; Mayor Lynch - Yes. Said motion passed with a 5 to 0 vote. 13. Comments and Inquiries on Non-Agenda Items 13.A.1. Dr. Alperin stated that he had noticed there is a storm water sewer installed on Lowson Boulevard and, at the corner of Lowson and Homewood, there are four concrete pads with -22- 1/12/93 drains in them. On the northwest corner adjacent to the newsracks, the concrete base has been cracked in three or four different places. He feels the placement of those newsrack stands, which have also caused destruction of the sod in that area for years, has now broken the recently-placed sewer grate. He questioned the status of the newsracks. The City Attorney stated, with respect to the elusive meeting the City has been trying to schedule, his staff has been in contact with those persons and made every attempt to line up an all-encompassing meeting with the representatives. They have not been able to accomplish this. A negotiating session is not in the works, but it is not due to a lack of effort on the part of his staff. Mayor Lynch suggested that the City Attorney schedule a meeting, put it in writing and request that they either be present or forget it. Ms. Butler advised that every newsrack throughout the City has been inventoried; however, she has no place to store them if they should be picked up at this time. The City Manager suggested that Ms. Butler contact other members of staff and meet with him to discuss priorities. 13.A.2. Commissioner Mouw had no comments or inquiries. 13,A,3. Commissioner Ellingsworth asked if a final agenda for the delegation from Miyazu is available. On Friday morning, January 29, 1993 at 9:30 A.M., Mayor Lynch will be presenting the Mayor of Miyazu with gifts and he feels the Commission should make an effort to be present. Other gifts will be presented at a dinner at the Sundy House on Saturday, January 30, 1993. A golf tournament is also scheduled for Friday afternoon, January 29, 1993. He complimented his committee for a job well done. 13.A.4. Commissioner Randolph had no comments or inquiries. I~A~, Mayor 'Lynch stated the Beach Property Owners brought up the issue of the license agreements with the feeling that it should be brought before the Commission in the form of a Public Hearing, in order that the public might have an opportunity for input. 13.A.6. Mayor Lynch commented that a couple of years ago there was a discussion about printing the names of people who are arrested or picked up for soliciting, basically for prostitution rings. This has again become a major issue as has been observed by the action taken by Mayor Nancy Graham of West Palm Beach. He feels the City should take a strong position; if this is not done, he feels Delray Beach will become a real problem spot. All other violations or violators are publicized and he feels those names should also be publicized. -23- 1/12/93 The City Attorney advised this is a bit different from what West Palm Beach is doing, in that, all those names and situations just discussed, are available to the press, who in turn, make the decision as to what is to be printed. West Palm Beach actually took out some advertisements and paid money to expose those persons. The City of Delray does not do that for burglars, rapists or murderers. Mayor Lynch reiterated that he would like the City to get tougher in this area. 13.A,7, Mayor Lynch commented that the Leathers Playground had an initial meeting last night at the Civic Center. This is the playground that will be built by the community and will take a lot of labor on the part of the citizens. His recommendation to all those persons interested is that they begin participating and when it actually gets underway sometime in June it can be com- pleted in record time. 13.A,8, Mayor Lynch stated there is a Municipal League Meeting tomorrow morning at 8:30 A.M.; if anyone has any item or items they would like discussed, he will present those at that time. 13.C. The City Manager stated the Commission approved a request for the County to move forward on the Manatee Protection Plan; he feels this should be brought before the Municipal League. He discussed this with Mr. Swaim, as it affects the Anchorage Project. In order to move ahead expeditiously, Mr. Swaim has indicated that he will retain a consultant to do what he needs to have done for his project. The City Manager feels it is appropriate for the City to request that the County proceed. The information received from discussions with DNR indicated it would take the City at least a year. Mr. Swaim feels that, with his contacts at DNR in Tallahassee, he could get through what he needs in a much shorter time frame. 13,B.1. The City Attorney stated that he provided the Commis- sion with a memorandum on the status of the Aero-Dri case. As the Commission is aware, the Fourth District Court of Appeal came down with the one remaining thing that stripped the City of its award of future damages, leaving the City with a judgment against Aero-Dri in the amount of $3.1 million dollars, with interest running. That is down considerably from the $8.7 million that the City had. If there are no motions for rehearing, clarifica- tion, or no appeals, he is advocating that the City move forward and ask for a rehearing on the future damages issue. The case would be remanded and another trial would be held on the issue of future damages. The good news about the trial is that liability would not be a question, but would have previously been estab- lished. The bad news is that the Court said damages can only be awarded until 1997 because the City's permit from the South Florida Water Management District expires in 1997. The Court looked at the evidence that was presented in the case and focused on one particular question and answer, in which Steve Lamb, Director of South Florida Water Management District, indicated was speculative on his part as to whether or not the City permit -24- 1/12/93 would be renewed. The Court seemed to ignore the testimony that there had never been a situation in Steve Lamb's experience, nor since the Water Management District came into being, that a municipality seeking a general permit where they did not ask for an increase, had ever been denied a permit. He would like to point that out to them and see if they can reinstate the award. Regardless of whether they do that, there is a question as to whether or not the City could prove that through getting more testimony on the issue; or, by the time it came back to retrial, there would not be as much question about what was going to happen in 1997, but, that damages could be extended beyond. That becomes important because one of the things not addressed by the Court was whether or not the expert evidence that both sides had presented was sufficient and meet the test for acceptable scien- tific evidence. He feels it does, but the Court did not answer that question, despite it being fully briefed before them. Unfortunately, the City has a situation where, once again, even if the answers were to be negative to the City, the court did a disservice to both parties and to future litigants in not answer- ing those questions. On a positive note, there has been some recent decisions by a Wisconsin Court and a couple of Federal trial .Courts on the insurance situation. Those cases say that the Pollution .Exclusion clause the City has been arguing about, does not apply to personal injury, but to property damage. Trespass, one of the theories of liability which the City was successful on in the case, is not considered property damage, but personal injury. Therefore, it does not matter whether they choose Ohio law, which would be adverse to the City on the Pollu- tion Exclusion question, or Florida law, which is positive to- wards the City, because the City would be dealing with a personal injury and the Pollution Exclusion clause does not apply to that, so coverage would be available. This development and this tact that will be taken is very positive and whether it is $3.1 mil- lion or $5.0 million or whatever, those recent cases will help the City in collecting some or all of it. Upon question by Mayor Lynch as to the cost, the City Attorney advised that, to actually do the motions for rehearing would be a relatively minor cost, say $1,000 to $2,000. Should the rehearing be granted, there could be more expense, but then again, if a rehearing is granted, that is good for the City, as this means the City is still in the ball game on the $5.6 mil- lion. If the City should be successful, it is the quickest and easiest way to get that future damage award back. Mayor Lynch declared the meeting adjourned at 9:45 P.M. -- Jcity C~rk Y -25- 1/12/93 ATTEST: The undersigned is the City Clerk of the City of Delray Beach and that the information provided herein is the minutes of the meeting of said City Commission of January 12, 1993, which minutes were formally approved and adopted by the City Commission clt cle ' ' NOTE TO READER: If the minutes that you have received are not completed as indi- cated above, then this means that these are not the official minutes of the City Commission. They will become the official minutes only after they have been reviewed and approved which may involve some amendments, additions or deletions to the minutes as set forth above. -26- 1/12/93