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12-06-83 umc~mBER 6, 1983 A regular meeting of the City Council of the City of Delray Beach, Florida, was called to order by Mayor Willard V. Young in the Council Chambers at City Hall at 7:02 P.M., Tuesday, becember 6, 1983. Roll call showed: Present - Council Member Doak S. Campbell Council Member Edward L. Perry Mayor Willard V. Young Absent - Council hember halcolm T. Bird Council 5~ember Arthur Jackel Also present were - City Manager William H. Law, Jr., and City Attorney Herbert W.A. Thiele. 2. The opening prayer was delivered by Dr. Andrew Hall, First Baptist Church. 3. The Pledge of Allegiance to the flag of the United States of America was given. 4. ~. Perry moved for approval of the minutes of the Special Meetings of November 11, 1983, November 12, 1983 and November 17, 1983, seconded by 5~. Campbell. Said motion passed unanimously. 5.a%I. ~. Robert Hutzler read a proclamation which he had prepared relative to Florida State University and University of Florida ~ootball games. 5,a.2. ~'.' Sam portnay, High Point Sec. 6, stated that on Atlantic Avenue and Barwick Road, a hideous sign has been put up; also, the U-Haul car trailers are there. He does not know what is going to be put on that sign. He feels it is time the County speaks to the City before anything is done in their County pockets. It's a disgrace to allow a thing like this to happen in front of such a nice neighborhood. He asked that the City look into this. Mayor Young stated that he has spoken to Commissioner Dorothy Wilken and Dennis Kahlert about this very item. He will be in West Palm Beach on Thursday morning and will again meet with them. He will again remind them of their conversations regarding this matter. Mr. Perry stated that several months ago he spoke to ~. Lunney of the County and asked if they would consider talking w~th the City before taking some of these actions. The indication then was that the County intended, to cooperate with the City. Since that time, to his certain knowledge, the Planning Director has indicated that at subse- quent meetings he has gotten the acquiescence of 5~. Lunney and his counterpart. He questions why they are not getting the cooperation they asked for. He feels the County should be reminded that they have indi- cated that they intended to cooperate. Mayor Young stated that they will be told on Thursday morning. Upon the request of ~. Portnay, Mayor Young stated that he will get in touch with Sm. Jack Kellerman after the meeting Thursday. 5.a.3'. 5~s~. RoSetta Rolle, 301 N.W. 3rd Avenue, advised Council of mounds of dirt east of the Amoco Station at N.W. 7th Avenue and Atlantic Avenue that have been there for several months. It looks extremely unattractive and she would like to see the mounds smoothed out so tha% parcel of land will be more attractive. hayor Young asked ~. Church to check into it. 5.a'.4. 9~s. Rolle reported on the new hotel at Atlantic Avenue and Ocean Boulevard and noted that former Councilwoman Charlotte burante, who is here tonight, had a lot to do with it. Everyone is pleased that it is such a beautiful building and she thanked everyone who had some- thing to do with it. Mayor Young concurred that the new hotel is going to be a tremendous asset to the City of Delray Beach. It is one of the most attractive hotels that he, personally, has ever seen. They hope to have an opening sometime around December 15-17, 1983. There will be an open house and Mr. %~lsh would appreciate anyone coming down to look at it at that time. 5.b.l'. 5~. Perry stated that several weeks ago they addressed the question of buy back for two police officers, Chief Kilgore and Captain Dalton. At that time, Council had decided the two officers would have to buy back by paying the interim interest. Since then, it has come again before Council and they remanded it back to the Retirement Board which met last week. He sat in on that Board meeting and recommends Council resurrect this question for the last time. ~. Perry moved that they rescind the action of Council which denied Chief Kilgore and Captain Dalton the privilege to buy back into the Police/Fire Pension Fund without paying interest, seconded by Mr. Campbell. Upon roll call Council voted as follows: hz. Campbell - Yes; ~z. Perry - Yes; hayor Young - No. Said motion passed with a 2 to 1 vote. Before roll call the following discussion was had: ~. Campbell questioned if this is appropriate, hayor Young pointed out that this matter was supposed to be on next week's agenda; however, since ~. Perry has brought it up, they have no choice but to act on it tonight. The City Attorney advised that the motion to rescind should be followed by an affirmative motion. At this point the roll was called to the motion. Mr. Perry moved that Chief Kilgore and Captain ~alton be allowed the privilege to buy back into the Police/Fire Pension Fund without paying interest, seconded by ~z. Campbell. Upon roll call Council voted as follows: ~z. Campbell - Yes; 5~. Perry - Yes; hayor Young - No. Said motion passed with a 2 to 1 vote. Before roll call, the City Attorney stated that he assumes this means that if they have paid in the interest, the Pension Board will be requested to return the monies to them. Mr. Perry replied that is correct. Upon question by Mayor Young, the City Attorney replie~ that this is a legal procedure. At this point the roll was called to the motion. 5.b. 2. hayor Young presented a proclamation proclaimin9 the month of January as "National Volunteer Blood Donor ~onth". 5'.C%1. Regarding Item 9 of the Consent Agenda, the City Attorney advised that the contract provided to Council was in the form of a draft. He has no problem with Council authorizing approval and execu- tion of the contract with Ernst & %~inney at this time; however, the motion should be made with the understanding that they may have to make some minor modifications that do not affect any of the substantive issues. 5.d'.l. There were no Non-Agenda Items by the City ~nager. 6. hayor Young advised that he has had a request to remove Item 13 from the regular agenda. The City Manager advised that a request has been received to remove Item 10 from the Consent Agenda. It will come back to Council at a later date. Mr. Perry moved for agenda approval with the removal of Item 13 from the regular agenda and Item 10 from the Consent Agenda, seconde~ by Mr. Campbell. Said motion passed unanimously. - 2 - 12/06/83 CON SENT AGENDA 7. Final Plat Approval - South Delra~ Sho~in~ Plaza (Phase One). Council is to consider a request for final plat approval for South Delray Shopping Plaza (Phase One), an approved shopping center, locatea north of Avenue "L" between Florida Boulevard and Federal Highway. This was unanimously approved by the Planning & Zoning Board subject to the following condition: Prior to the recordation of the plat and the beginning of construction of the storm sewer outfall, provide evidence that a clear agreement has been reached with the affected homeowners concerning restoration of the parking area, landscaping and seawall. This addi- tional submittal is being required to protect the underlying title holders even though the outfall is to be constructed in an existing easement. 8. Conditional Use Approval - Lloyd's ExXon. Council is to consider a request for conditional use approval for Lloyd's Exxon, an existing gas station, to allow the addition of two pump islands. The property is located at the northeast corner of Congress Avenue and Atantic Avenue. This was unanimously approved by the Planning & ~onin9 Board subject to the following conditions: (1) That the improvements to this project be completed in accordance with the approved site plans re: Lloyd's Exxon, 1909 Atlantic Avenue, Delray Beach, Florida, prepared by Exxon Company, U. S .A. , Real Estate & Engineering Division, P.O. Box 367, ~Iemphis, TN 38101, Sheet Nos. 1-12, dated October 28, 1983; and prepared by J.H. Manucy, Inc., Land Surveyor, 4694 Palm Avenue, Hialeah, Florida, Sheet No. 13 dated harch 2~, 1983; and prepared by Kenneth E. Lones, Landscape Architect, 140 N.E. 160th Street, North ~.~liami Beach, Florida, Sheet No. 14 dated June 28, 1983; all of which are incorporated by reference and made a part hereof and upon which the City has relied in grantin9 this ap- proval; and, (2) That the time limitation of this approval be one year pursuant to Sec. 30-21(E) of the Zoning Code. 9. Contract for Audit Services. Council is to consider au- thorizing execution of contract between the City and Ernst & Whinney to provide auditing services. (See comments by City Attorney under Item 5.c.1.). 11. NuiSance Abatement. Resolution No. 107-83, assessing costs on three properties in accordance with Sections 13-12 and 13-13 of the Code, is before Council for consideration. The caption of Resolution No. 107-83 is as follows: A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DELRAY BEACH , FLORIDA, PURSUANT TO CHAPTER 13 OF THE CODE OF ORDINANCES OF THE CITY OF DELRAY BEACH, ASSESSING COSTS FOR ABATING NUISANCES UPON CERTAIN LAND(S) LOCATED WITHIN THE CITY OF DELRAY BEACH; SETTING OUT ACTUAL COSTS IN- CURRED BY THE CITY TO ACCO~]PLI S~ SUCH ABATESIENT AND LEVYING THE COST OF SUCH ABATE~ENT OF NUISANCES; PRO- VIDING FOR AN EFFECTIVE DATE AND FOR A DUE DATE AND INTEREST ON ASSESShENTS; PROVIDING FOR THE RECORDING OF THIS RE SOLUTION, AND DECLARING SAID LEVY TO SE A LIEN UPON THE SUBJECT PROPERTY FOR UNPAID ASSESS~]ENTS; PRO- VIDING FOR THE ~ILING OF NOTICE OF LIEN. (Copy of Resolution No. 107-83 is on file in the official Resolution Book) Mr. Campbell moved for adoption of the Consent Agenda with the removal of Item 10, and the Ernst & Whinney contract being approved as outlined by the City Attorney, seconded by ~. Perry. Said motion passed unanimously. - 3 - 12/06/83 Relative to Item 9, the City Manager pointed out that they did negotiate with the auditing firm and they reduced their price Dy $2,000 a year for this particular contract which put them less than the lowest bidder when they took proposals before, hayor Young stated that there was an article in the newspaper which said that this had been delayed by continual bickering on the part of Council. He wishes to clarify that there has been no bickering by Council in regard to this situation. REGULAR AGENDA 12, Appeal of a COmmUnitY'Ap~earance' Board Decision. Council is to consider an appeal by Mr. Douglas D. Cary of a CAB decision relative to a fence and landscaping at Cary's Warehouse, 340-350 Congress Avenue. This was denied by the Community Appearance Board by a vote of 5-1 (~s. Bird dissenting). The City Attorney advised that the application was to the CAB for approval of plans to erect a six foot high chain link fence at 340-350 Congress Avenue. Subsequent to the denial of the request by the CAB, Mr. Gulotta, attorney for 5~. Cary, filed a timely appeal to City Council which is permitted under Chapter 9 of the Code. It is before Council tonight to either approve of the CAB decision or to reverse the CAB decision. In that regard, ~. Gulotta has stated that they are appealing the entire decision; however, if the City Council desires to reverse the CAB decision to a limited extent, his client would be will- ing to comply with the request to relocate the building materials within a broad enough period of time, to locate them at that site on Congress Avenue, to erect a six foot chain link fence and he would agree to screen the fence by the placement of shrubbery around the fence which is one of the CAB's requests. The only factor, therefore, that would need reversal, was a requirement that CAB attempted to impose wherein the applicant would be required to sod the property all the way to Congress Avenue pavement, which they would not agree to. ~. Gulotta advised that the primary reason that they obDect to the requirement of soddin9 is because this is property that ~. Cary does not own; it is County owned and lies on the North boundary of property to the road bed of Congress Avenue. To sod and maintain, which is what the CAB required, they would by definition become a trespasser. The purpose of buying and fencin9 the property is to move steel which is currently on a piece of property ~. Cary owns abutting the FEC Railway. They have another problem in that they are required to appear before the Code Enforcement Board on December 13th because they are in violation as they have not removed it. They applied to the CAB for permission to fence it; they need the fence because much of the steel is portable; the CAB has held them up since last hay because first they wanted hedging which he agreed, then they wanted olive trees every four feet, which he agreed to, the last time the soddin9 came up and that he did not agree to. They could not comply with the Code Enforcement Board's order because of another municipal board. He would like to get this all straightened out; specifically, they would like to have the fine waived, whatever it may be, as a result of the hearing on December 13th. They would like 6-9 months to move the material, the reason bein9 that the fencing has not been ordered yet, the landscaping has not been ordered yet and 5~. Cary runs a full time business in town. ~he third thing they would like is that the plan that was submitted and approved by CAS be approved with the exception of the sodding. ~r. Perry stated that under Sec. 9-361(e) General Land- scaping, "One of the uses of landscaping will be to screen. It is the masking out or concealing of any objectionable area." He felt an im- portant sentence was "The achievement of this is left to the designer, whether by walls, fences, mounds of earth, or vegetation." ~r. Perry noted that the CAB has stipulated olive trees as a specification; he has to question whether or not they may have ~one overboard. 5~. Gulotta advised that they have agreed to that specification. 5~. Perry referred to Sec. 9-378(d) "Required landscapin9 adjacent to public rights-of-way". He wonders if they are not getting into a due process of law thing by telling them they must landscape public lands, which in fact they are. The largest part of the sodding - 4 - 12/06/83 would be in public right-of-way. It would seem to him to be an ex- tremely abusive demand to expect them to sod public area without any remuneration. According to their own ordinance, the language seems to be that they require landscaping only to the area adjacent to public rights-of-way, nothing beyond. Upon question by Mr. Campbell, hr. Galluto advised that the property is between the right-of-way of Congress Avenue and the E-4 Canal; the amount of property in question is 10-12 feet. ~. Campbell asked if this property lies within the area that is goin9 to be in,proved when Congress Avenue is to be widened. The City Attorney replied that he believes so. ~. Campbell stated that it is his understanding that it is due in next year's allocation by the County. He further stated that since it is within the area that is going to be improved by the County within a short period of time, he would be willing to waive, if they can, a limited opinion of the CAB which would be only relative to the sodding. He is not sure they have any jurisdiction this evening to consider what is going on with the Code Enforcement Board. The City Attorney suggested that, in a separate motion or as a part of the motion relative to the appeal, Council direct the Administration to contact the Code Enforcement Board through the Building Department and request that they postpone any further consideration of the case until their June meeting; that would give them their 6 months. 5~. Campbell stated that he is not really in iavor o~ that extended period of time at this point. 5~. Galutto explained that nothing has been ordered yet and ~. Cary has explained that he has no control over when it gets delivered. ~. Cary needs the fencing, the trees, the hedging; then he has to move the steel. He operates Ocean City Laundry full time and is going to try and supervise as much of this as he can. ~. Perry stated that this is the type of question that drew him to suggest a few weeks ago that they sit down with the various boards for discussions. hr. Perry moved that they waive the sodding portion of the order and approve the rest of the conditions, seconded by ~. Campbell. Said motion passed unanimously. Council discussion was had at this time relative to how lon9 the Code Enforcement Board should postpone this case. It was the consensus of Council to have the Administration contact the Code Enforcement Board to request a postponement of t~is case and to leave it in their discretion as to the duration. 14. Cha~e'OrderS - City Hall Additions and Alterations. Council is to consider approval of final change orders for City Hall projects. ~. Leo Blair, Chairman of the City Hall Building Committee, made a presentation. The Committee feels that, other than some minor items, the contractor has completed his ~ob and they would like to see this finalized at this time. He reported that they started with a contract of $1,085,203 which was the low bid for City Hall. Council, at that time, did not want to go over the million mark and made consid- erable effort to cut the cost. The final expenses, including all change orders, comes to a total figure of $959,227.44. He feels the contractor did a very nice ]ob on the whole project, he was very cooperative and he would like to see the project finally come to an end. 5~. Blair further outlined the activities of the Committee and the contractor. He feels that having this type of a Committee, with someone knowledgable in con- struction heading it, is an excellent idea in order to keep the archi- tect and/or contractor going in the right direction and to keep battles from arising. On behalf of City Council and the citizens of De lray seach, Mayor Young thanked F~. Blair for the outstanding work he has done as Chairman of this Committee, and ~. Church as a member of the Committee. They saved the citizens of this City $200,000 and also advanced the occupation date by almost two months. - 5 - 12/06/83 The City Manager recommended that Council consider approval of the change orders and the revision of Change Order #7 and, in effect, approve the Building Committee's report. ~. Perry moved for approval as outlined by the City hanager and also for payment of the monies they have requested, seconde~ by ~. Campbell. Said motion passed unanimously. Before roll call, the City Attorney pointed out that on page 2 of the memorandum, there is a paragraph #1 following the revise~ Change Order #7. He feels it should be clear for the record that by approval of that change order, the City is apparently agreeing not to litigate the issues; he wants it to be clear that it is only relative to the issues surrounding known facts at the present time and only relative to that particular subject matter contained in that change order; not any other potential problems they may come up with later on. It seems to be much broader in that paragraph than what was intended. At this point the roll was called to the motion. The City Attorney advised that months a9o ~. Cox requested that Council direct the City Attorney to contact his bondin9 company to let them know that issue had been resolved. Based on tonight's action, he will go ahead and make that contact if Council so wishes. Council concurred. Mr. Perry stated that he knows there is a feeling about that the City Attorney did this precipitously. Council did direct him to do this and he (Mr. Perry) would hope that anyone who feels that the City Attorney made that move on his own will have that notion corrected. It was a direction of Council. 15~ ~yor Young reported that at a Council meeting several wee~s ago, he was given the authority to contact ~. James Pennington with regard to the office of City Manager. ~. Pennington came to belray Beach and they spent 3½ hours together discussing every item and have come pretty close to an agreement, with one exception. That exception is insurance which they cannot offer to his family; they do not do at for any employee of the City and cannot do it for ~. Pennington. ~ayor Young added that he has contacted him since then and feels they will come to a complete agreement. ~. Pennington expects to be here around the 15th of January. Mayor Young declared the n~eting adjourned at 7:50 P.~. Clerk ATT E ST: ~ City 5~A YO R The undersigned is the City Clerk of the City of De lray Beach and that the information provided herein is the minutes of the meeting of said City Council of December 6, 1983, w~ich minutes were formally approved and adopted by the City Council on~. /~ /~ F~ · City Cler~ NOTE TO READER: If the minutes that you have received are not completed as indicate~ above, then this means that these are not the official minutes of City Council. They will become the official minutes only a~ter they have been reviewed and approved which may involve some amendments, additions, or deletions to the minutes as set forth above. - 6 - 12/06/~3