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11-13-79 NOVEMBER 13, 1979 A regular Meeting of the City Council of the City of Delray Beach, Florida, was held in the Council Chambers at 7:05 P.M., Tuesday, November 13, 1979, with Mayor Leon M. Weekes, presiding and City Manager J. Eldon Mariott, City Attorney Roger Saberson, and Council members Malcolm T. Bird, Charlotte G. Durante, James H. Scheifley (arrived at 7:10 P.M.), and Willard V. Young, present. 1. The opening prayer was delivered by Father James English, St. Paul's Episcopal Church. 2. The Pledge of Allegiance to the flag of the United States of America was given. 3. Mr. Young moved for approval of the minutes of the regular meeting of October 22, 1979 and the special meetings of November 1, 1979 and November 5, 1979, seconded by Mrs. Durante. Said motion passed unanimously. 4.a.1. Mayor Weekes presented a proclamation proclaiming a Bond Referendum Election to be held on Tuesday, December 11, 1979, between the hours of 7:00 A.M. and 7:00 P.M. 5. There were no public requests from the floor. 6.a.1. The City Manager reported that a request has been received from Dr. Mitchell, Chairman of the Civil Service Board, with respect to his request for legal counsel -in the lawsuit Wymbs vs City of Delray Beach. The City Attorney stated that he has been informed by Mr. Wymb's attorney that he intends to file with the Circuit Court a request that the court enter an order staying any further proceedings of the Civil Service Board pending the outcome of the appeal. Mayor Weekes stated that the City Attorney's office will represent the City in the matter of the appeal so there are no addi- tional Council meetings needed at that level. The City Attorney con- firmed this. The Mayor added that Council's decision is if it comes back to the Civil Service Board for hearing, they would furnish counsel for the Board but in the meantime the court is going to ask for a stay of any hearing by the Civil Service Board until the appeal is processed. 6.a.2. The City Manager reported that item 8.b. is a resolution (Resolution No. 87-79) awarding a contract for the installation of a sand fence on the beach. The second part of this is the purchase of the sand fence. It was decided by the Administration that it would be much less expensive to do it in two parts; for the City to buy the fence direct from the manufacturer and then contract for the installation of the fence. Item 8.b. on the agenda provides only for the installation of the fence. A companion resolution (Resolution No. 90-79) which is not listed on the agenda for the purchase of the fence, has been pre- pared. The City Attorney advised that Council could either take the resolution now or a~end the agenda and place it after item 8.b. Mr. Bird moved to amend the agenda, seconded by Mrs. Durante. Said motion passed unanimously. 6.b. The City Manager reported that in compliance with require- ments set forth in Chapter 12 of the City's Code of Ordinances, Council should appoint Clerks and Inspectors to conduct the upcoming bond issue election on December llth. It is suggested that the list of possible appointees shown on the sheet provided to Council, from which sufficient numbers of Clerks and Inspectors will be selected by the City Clerk, be approved by Council. Mrs. Durante moved for the appointment of the Clerks and Inspectors for the upcoming bond election as submitted to Council on the list attached to the agenda, seconded by Mr. Scheifley. Said motion passed unanimously. 6.c. The City Manager reported that as discussed informally at the November 5th workshop meeting, Council is to consider taking action declining to adopt a resolution authorizing a return to the Palm Beach County Library System as requested by the County Library Director's October 17, 1979 letter addressed to the City Manager. Mr. Bird moved that they continue to operate the City Library as a City entity and not rejoin the County system, seconded by Mr. Scheifley. Said motion passed unanimously. 6.d. The City Manager reported that as discussed at the November 5th workshop meeting, Council is to consider authorizing the execution of a quit claim and easement deed relative to the Lake Worth Drainage District Canal and adjacent property at the Delray Beach Country Club. The City Attorney added that this is to authorize the execu- tion and the receipt of quit claim deeds by the City that will effec- tuate establishing the right-of-way of the Lake Worth Drainage District Canal through the Country Club as being 190 feet in width. That is in accordance with the survey submitted to the City by O'Brien, Sutter and O'Brien dated September 19, 1979. Mr. Bird moved to authorize the acceptance and execution of deeds by the City as outlined by the City Attorney, seconded by Mr. Scheifley. Said motion passed unanimously. Before roll call the following discussion was had: Mr. Scheifley asked if they could someday widen that canal to 190 feet? The City Attorney replied that they would have the legal right to do so but as a practical matter they could not widen it to 190 feet and still have an ingress and egress, spoil areas and work areas to be able to work with the canal. In response to Mr. Young, the City Attorney replied that the 190 feet is taken from the centerline of the existing canal, 95 feet on each side. In some cases there are small inlets and coves on the west side of the canal which are outside the boundary of the Lake Worth Drainage District canal right-of-way as established in the survey. At this point the roll was called to the motion. 6.e. The City Manager reported that it is recommended that Council authorize entering into an agreement with the Boca Raton Yacht and Tennis Club, Inc. for the installation of a 10-inch water main on Germantown Road from Lowson Boulevard to Linton Boulevard. The cost of this project is approximately $75,000 to be shared equally by the City and the developer. It is recommended that Council make a motion author- izing the City Attorney's office to draft an agreement between the City and the developer effectuating the agreement for the construction of the water line. In response to Mr. Young, The City Manager replied that the funds for this would come out of the $4 million Water and Sewer Bond Issue. Mrs. Durante moved to authorize the City Attorney to prepare the agreement for the installation of the 10-inch water main, seconded by Mr. Scheifley. Said motion passed unanimously. Before roll call the following discussion was had: Mr. Bird asked for further explanation. The City Manager stated that this is a water line that is needed for the municipal system in addition to being needed by the developer. There is water available to the developer that could, perhaps, be used by him without this line. This line is to be installed at the instigation of the City and an overt request on the part of the developer. This property has changed ownership since the City first planned installation of this line and different uses are planned in the area now. The City's goal has always been the same; to install this line as a part of the municipal water supply for that sec- tion of the City. At this point the roll was called to the motion. - 2 - 11/13/79 6.f. The City Manager reported that it is recommended that Council authorize execution of Supplemental Agreement No. 25 between the City and Russell & Axon in connection with Lift Station Nos. 50 and 80. Included under this supplemental agreement are engineering services during construction, resident project services, preparation of record drawings and preparation of operation and maintenance manual. The total engineering fee amounts to $207,650. The City's share will be 25% of that amount and will come from the $4 million Water and Sewer Revenue Bond Issue. The City Attorney added that in lieu of approving the agree- ment tonight, he is requesting Council to authorize the retention of Russell & Axon to perform engineering services for Lift Station Nos. 50 and 80 and associated force mains at a total fee of $207,650. Russell & Axon submitted a contract last week; there are several amendments that they propose to the contract. They met today and finalized, conceptually, the various terms and provisions in the agreement. Russell & Axon has a meeting scheduled with DER this week to file the application and can proceed to file it and begin the DER review process if they can inform DER that the City has agreed to retain them for these projects. The City has, in fact, previously authorized Russell & Axon to do the same project and the reason that a different form of contract is being used now is because of EPA requirements to insert certain contractual pro- visions. In the process of inserting those provisions, other provisions came up and he felt that those other provisions should be included for the City's benefit. They will be typed in final form this week and he requests that Council call a special meeting prior to the workshop next week to have formal Council authorization to execute the contract. Mrs. Durante moved that they retain the firm of Russell & Axon for the contract regarding Lift Station Nos. 50 and 80 for a fee in the amount of $207,650 in accordance with the budget worksheets which have been submitted to the City by Russell & Axon on the EPA forms that will accompany this grant application, .seconded by Mr. Scheifley. Upon roll call Council voted as follows: Mr. Bird - No; Mrs. Durante - Yes; Mr. Scheifley - Yes; Mr. Young - No; Mayor Weekes - Yes. Said motion passed with a 3 to 2 vote. Before roll call the following discussion was had: Mr. Scheifley asked how this fee was arrived at. The City Attorney replied that the fee has been reviewed by the City Engineer and Utilities Director and they have no objection to it. It is also reviewed by EPA; in the event that EPA feels that the charges are excessive, they will not approve the charges or if they have approved the charges and they subsequently determine that they were excessive for the project after an audit, they will compel the engineer to reimburse the City and EPA for those payments. The actual way the fee is computed is that they take each aspect of the project; they delineate the different types of per- sonnel that will be involved and give the actual cost per hour of em- ploying each individual to Russell & Axon which brings to the project managers $18.50 per hour. They multiply that times the total estimated hours and come up with an estimated cost for that individual. Then they take that times the factor for fringe benefits and overhead, which in this case is 1.263 which was based on an audit done of Russell & Axon's record by the EPA. They also add to that mile adjustments and cost and expense estimates that are part of the application. Mr. Bird asked if they ever go out to bid on $207,650 worth of consultation fees. The City Attorney explained that the contract relationship that the City has with Russell & Axon is a continuing contract whereby they do the City's water and sewer engineering services. It is possible under the Contract for the City, at any time, to either partially or completely terminate that contract and to go out to bid if that's Council's desires. The City Manager added that this is not a new engineering contract. The City contracted with Russell & Axon to do this engi- neering some time ago on a different basis than is being presented tonight. The reason it is being presented tonight on a different cost basis is because of a new EPA requirement. In the past, EPA would allow the engineering contract to be based on a percentage of construction cost plus out of pocket expense and incidental expense incurred by the - ~ - 11/13/79 engineer during the progress of the work. Now EPA says that this con- tract has to be on a lump sum basis and that is the basic reason that it is back to Council at this time. Council agreed some time ago that Russell & Axon would perform the engineering that is being discussed tonight. The other related item on tonight's agenda is for Council to authorize the City Manager to represent the City in attempting to secure grant funds in the amount of about $1,500,000 which would pay for about 3/4 of this $2,000,000 project including engineering costs. Mr. Bird stated that there is always a danger in entering into a contract which is open-ended that the City does not continue to get best value. He asked if the City is still getting best value for its consulting dollar. The City Manager replied that the estimates that were used -- in arriving at this figure were from the old contract between the City and Russell & Axon. He will check that out with Mr. Castle. If that is true, then the rates would be lower than present day engineering rates for similar services. Mr. Castle stated that it is correct in part. The old contract was for a percentage of the construction cost required in the engineering services; that will remain the same. The other method which the previous authorization allowed them to get compensated for was on a cost plus basis; every hour that a person puts on the job, multiply that times the salary, multiply that times the overhead profit factor. That is no longer allowable by EPA so what they had to do is estimate how many people they're going to have on the job and what their salaries would be and put that into a lump sum figure. So, parts of the new authorization are the same. There is no way of determining the other part until the end of the job. Mr. Bird asked if it is still the opinion of the Admini- stration that the best value for the City's consulting engineering dollars is by continuation with this open-ended contract with Russell & Axon. The City Manager replied that that is a whole different question that should be looked at in a broader perspective. He is not prepared to address that question tonight. He has not come to Council with a recommendation that they consider changing engineers. Mrs. Durante stated that as far as this item is concerned, they are already under contract. Mr. Scheifley stated that before Mr. Bird came on Council, there was another member of the Council who, for four years, asked the same question. They put extensive hours, time and effort into it. During the four years when this subject was analyzed and they requested all kinds of support for retaining Russell & Axon, that Council member was never able to convince the other four members of Council not to retain Russell & Axon. The question is an old one but no one ever presented any arguments or evidence sufficiently strong enough for the - Council to change engineers. Mr. Bird stated that he is not suggesting that the City change engineers and he addressed the question to Mr. Scheifley; is the City still obtaining for the citizens of Delray Beach the best value for their engineering and consulting dollar. If they are then he suggests they call the roll and move on. If not then he suggests they do some homework. Mr. Scheifley replied that he is under the impression that they are, based on previous experience. Mrs. Durante stated that the time to consider that would be when they get to a new project, something other than what they've al- ready approved. - 4 - 11/13/79 Mayor Weekes stated that in the matter of consulting engi- neers for water and sewer, he would have no objection to broaching the subject at a workshop and discussing it in depth. It's probably the most difficult of all the City consultants to change because of the ongoing knowledge that they have of the City's water and sewer construc- tion. Mr. Scheifley stated that Mr. Bird's point is well-taken. It's a service to the City and the taxpayers to continue to review the consultants and they should do it. At this point the roll was called to the motion. 7.a. The City Manager reported that a communication has been received from Knights of Columbus, Trinity Council No. 4839 requesting permission to solicit funds from February 29th through March 2, 1980, approval of which is recommended by the Solicitations Committee. Mr. Bird moved to authorize solicitation of funds by Knights of Columbus, Trinity Council No. 4839 from February 29th through March 2, 1980, seconded by Mr. Young. Said motion passed unanimously. 7.b. The City Manager reported that a communication has been received from the Daughters of Zion S.D.A. Church requesting permission to solicit funds from November 17th through November 30, 1979, approval of which is recommended by the Solicitations Committee. Mr. Bird moved that Council authorize solicitation of funds by the Daughters of Zion S.D.A. Church from November 17th through November 30, 1979, seconded by Mr. Young. Said motion passed unanimously. 7.c. The City Manager reported that a communication has been re- ceived from The Arthritis Foundation requesting permission to solicit funds from January 5th through January 19, 1980, approval of which is recommended by the Solicitations Committee. Mr. Bird moved that Council authorize the Arthritis Found- ation to solicit funds from January 5th through January 19, 1980, seconded by Mr. Young. Said motion passed unanimously. Before roll call the following discussion was had: Mrs. Betty Matthews, 1024 White Drive, stated that this is very close to the time when the Community Chest drive is on. It seems to her that if there were some way that these charities could have been included in the Community Chest, it would be easier on the people who are being solicited as well as the people who are doing the solicitation. Mayor Weekes stated that he agrees with her and as a member of the Board of Directors of the Community Chest he can say that they have made diligent efforts to get every charitable organization that they can into the fold. The Community Chest drive is around the first two weeks in February which is a month difference from the one they are approving now. Mr. Bird stated that one of the problems may be that the Community Chest has long taken the stand that agencies which receive funds from them may not solicit independently at some other time of the year. Mrs. Durante stated that just recently a social service agency told her that they had contacted Community Chest about getting on their list and they were told that the Community Chest was not adding any other agencies. Mayor Weekes replied that the Community Chest's budget for this year has already been finalized and put in effect; they couldn't do it at this time. At this point the roll was called to the motion. 7.d. Mayor Weekes acknowledged receipt of the minutes of the Beautification Committee for the meeting held on October 3, 1979. - ~ - 11/13/79 7.e. The City Manager reported that a communication has been received from the Area Planning Board dated November 1st requesting A-95 Clearinghouse review and comment relative to Operations Renewal Grant Application for South County Mental Health Center, Inc. This is the 7th Year Operations Renewal Grant application for the period beginning February 1, 1980. This project will not result in any adverse effects to the local natural, social or economic environment. Mrs. Durante moved that they send a letter stating that there is no objection to the project, seconded by Mr. Bird. Said motion passed unanimously. 8.a. The City Manager reported that Resolution No. 86-79 author- izing the City Manager to make application for federal assistance under Public Law 92-500 construction grants program is before Council for con- sideration. Approval is recommended. The City Manager presented Resolution No. 86-79: A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DELRAY BEACH AUTHORIZING J. ELDON MARIOTT, CITY MANAGER, TO FILE APPLICATION FOR FEDERAL ASSISTANCE UNDER PUBLIC LAW 92-500 CONSTRUCTION GRANTS PROGRAM. (Copy of Resolution No. 86-79 is on file in the official Resolution Book) Mrs. Durante moved for the adoption of Resolution No. 86-79, seconded by Mr. Scheifley. Upon roll call Council voted as follows: Mr. Bird - Yes; Mrs. Durante - Yes; Mr. Scheifley - Yes; Mr. Young - Yes; Mayor Weekes - Yes. Said motion passed with a 5 to 0 vote. 8.b. The City Manager stated that this is the other part of the resolution he discussed briefly at the beginning of the meeting. He passed out copies of the new resolution, Resolution No. 90-79, and stated that they will discuss Resolution Nos. 87-79 and 90-79 together. The following quotations have been received to install a sand fence on the municipal beach: Bidder Quotation Frank English $16,206 Fence Contractor Lantana Pompano Fence Company 16,770 Pompano Beach It is recommended that authorization be given to award the contract to the low bidder, Frank English, Fence Contractor, in the amount of $16,20~_ by passage of Resolution No. 87-79, with funding to come from the Beach Restoration Fund. The intention is not to execute the contract until permission for doing so is obtained from the State. The City's appli- cation with the State is pending. The contract is for a double sand fence. The City Manager presented Resolution ~o. 87-79: A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DELRAY BEACH, FLORIDA, AUTHORIZING THE AWARD OF A CONTRACT TO INSTALL A SAND FENCE ON DELRAY BEACH'S MUNICIPAL BEACH FROM CASUARINA ROAD NORTH TO THE NORTH END OF THE RE- VETMENT. (Copy of Resolution No. 87-79 is on file in the official Resolution Book) - 6 - 11/13/79 The City Manager reported further that the City needs to have approval from Tallahassee from the Division of Beaches and Shores before they actually make the award but he would like for Council to take action tonight and then they will delay execution of the award and the purchase in both cases until they receive such approval from Tallahassee. Mrs. Durante moved for the adoption of Resolution No. 87-79, awarding the bid to Frank English, Fence Contractor, in the amount of $16,206, seconded by Mr. Scheifley. Upon roll call Council voted as follows: Mr. Bird - Yes; Mrs. Durante - Yes; Mr. Scheifley - Yes; Mr. Young - Yes; Mayor Weekes - Yes. Said motion passed with a 5 to 0 vote. Before roll call the following discussion was had: Mr. Jack Pitts, 1109 Beach Drive, asked if this fence is as they had before to prevent the blowing of sand. The City Manager replied that it is ac- tually for a twofold purpose; 1) to retard the blowing of sand and 2) to hopefully help build a dune. It will be placed further out on the beach and there will be a double fence this time instead of a single fence. Mayor Weekes stated that this fence will be placed further seaward. Mr. Bird asked whether the sand fence to partially block the entrances to the beach is included in this resolution. The City Manager replied that that is not a part of this contract; that will be considered as a separate item. John Shudlick, 26 Ocean View Drive, Ocean Ridge, stated that he attended the Beach Restoration conference in Miami several weeks ago and there was one particular concept that he became aware of there; it's called the sandgrabber. He thinks that this sandgrabber, which costs approximately $1.40 a foot, could possibly help the City of Delray Beach. There are concrete blocks and it's like a step system. You put it out in the water and the sand in the water from the ocean comes right up through the blocks and the sand is caught on the opposite side of the sandgrabber and it builds up a beautiful beach. Mr. Shudlick left information with the City Manager. At this point the roll was called to the motion. Mr. Scheifley asked if permission to do this is given by the State, will it be done this winter. The City Manager replied yes, they would hope so. The City Manager presented Resolution No. 90-79: A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DELRAY BEACH, FLORIDA, PURSUANT TO CHAPTER 2, SECTION 2-14 OF THE CODE OF ORDINANCES OF THE CITY OF DELRAY BEACH DIRECTING THE CITY'S PURCHASING AGENT TO PROCEED AS IN SECTION 2-12 REGARDING PURCHASE OF FENCE FOR THE MUNI- CIPAL BEACH. (Copy of Resolution No. 90-79 is on file in the official Resolution Book) The City Manager stated that this resolution was drafted late this afternoon and it is silent on the cost of the fence and who' they are buying the fence from. He asked if the resolution should be passed in this form or should they add two new sections naming the cost and the company that they are buying from. Mr. Thiele, Assistant City Attorney, replied that he doesn't think that that is required. The City Manager advised Council that they plan on buying the needed fence at a cost of $7,037.68. Passage of Resolution 90-79 is recommended. Mrs. Durante moved for the passage of Resolution No. 90-79 to purchase a sand fence in the amount of $7,037.68, seconded by Mr. Bird. Upon roll call Council voted as follows: Mr. Bird - Yes; Mrs. Durante - Yes; Mr. Scheifley - Yes; Mr. Young - Yes; Mayor Weekes - Yes. Said motion passed with a 5 to 0 vote. - ~ - 11/13/79 8.c. The City Manager reported that Resolution No. 88-79 accept- ing all streets and storm drains in Plat No. 2 of High Point, Section 7 be accepted as operational. The City Manager presented Resolution No. 88-79: A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DELRAY BEACH, FLORIDA, ACCEPTING ALL THE STREETS AND STORM DRAINS INSTALLED IN HIGH POINT, SECTION 7, ACCORDING TO PLAT NO. 2 OF HIGH POINT, SECTION 7, AS RECORDED IN PLAT BOOK 36, PAGES 64, 65 AND 66 OF THE PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA, AS OPERATIONAL; PROVIDING THAT THIS RESOLUTION SHALL NOT DISCHARGE THE DEVELOPER FROM STRICT PERFORMANCE; PROVIDING FOR MAINTENANCE FOR AND REPAIRS BY DEVELOPER FOR ONE YEAR. (Copy of Resolution No. 88-79 is on file in the official Resolution Book) Mrs. Durante asked who is guaranteeing that these are all in good working order at the time they do this. Mayor Weekes stated that these are private streets and they are no't accepting the streets for maintenance. Mr. Scheifley stated that he doesn't think there is any- thing they could do too extensively to prevent problems. The City Manager stated that he doesn't think there is any guarantee. In response to a question from Mr. Bird, Assistant City Attorney Thiele stated that the Lake Worth Drainage District approves the plans as submitted. Their engineers have certified to the City that they have been built in accordance with the approved plans. Mayor Weekes stated that the question comes up; was it properly designed? That's a different issue and, as Mr. Thiele has said, it is too late to address that issue. The City Manager advised that if Council is not satisfied with this, they do not have to act on it; they can take it to workshop. Mr. Bird moved that this item be taken to workshop, seconded by Mr. Young. Said motion passed unanimously. 8.d. The City Manager reported that it is recommended that Resolution No. 89-79 accepting all sanitary sewers and water utilities installed in Plat No. 2 of High Point, Section 7 be accepted as opera- tional. The City Manager presented Resolution No. 89-79: A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DELRAY BEACH, FLORIDA, ACCEPTING ALL THE SANITARY SEWERS AND WATER UTILITIES INSTALLED IN HIGH POINT, SECTION 7, ACCORDING TO PLAT NO. 2 OF HIGH POINT, SECTION 7, AS RECORDED IN PLAT BOOK 36, PAGES 64, 65 AND 66 OF THE PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA, COMPRISING THE FOLLOWING LOCATIONS: N.W. 4TH STREET FROM END OF CUL-DE-SAC TO PLAT NO. 1 OF HIGH POINT, SECTION 7: N.W. 3RD COURT FROM END OF CUL-DE-SAC- TO PLAT NO. 1 OF HIGH POINT, SECTION 7: N.W. 48TH AVENUE, FROM N.W. 3RD COURT TO N.W. 3RD STREET; N.W. 3RD STREET FROM N.W. 48TH AVENUE TO PLAT NO. 1 OF HIGH POINT, SECTION 7; N.W. 50TH AVENUE FROM N.W. 3RD COURT TO N.W. 2ND STREET; N.W. 2ND STREET FROM N.W. 50TH AVENUE TO PLAT NO. 1 OF HIGH POINT, SEC- TION 7: N.W. 3RD STREET FROM END OF CUL-DE-SAC TO N.W. 50TH AVENUE AND WATER LINE ON EAST SIDE OF MILITARY TRAIL FROM NORTHWEST CORNER TO SOUTHWEST CORNER OF HIGH POINT, SECTION 7 AS OPERATIONAL AND SETTING THE INITIAL SCHEDULE OF RATES, FEES AND OTHER RELATED CHARGES TO BE IMPOSED FOR THE SERVICES AND FACILITIES FURNISHED BY SAID UTILI- TIES; PROVIDING THAT THIS RESOLUTION SHALL NOT DISCHARGE THE DEVELOPER FROM STRICT PERFORMANCE; PROVIDING FOR MAINTENANCE FOR AND REPAIRS BY DEVELOPER FOR ONE YEAR. - 8 - 11/13/79 (Copy of Resolution No. 89-79 is on file in the official Resolution Book) Mr. Bird moved for adoption of Resolution No. 89-79, seconded by Mr. Young. Upon roll call Council voted as follows: Mr. Bird - Yes; Mrs. Durante - Yes; Mr. Scheifley - Yes; Mr. Young - Yes; Mayor Weekes - Yes. Said motion passed with a 5 to 0 vote. 8.e. The City Manager reported that Ordinance No. 74-79, amending Ordinance No. 64-79 relative to dockage fees is before Council for consideration on Second and FINAL Reading. This ordinance was passed on First Reading at the October 22nd meeting. 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. 74-79: AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DELRAY BEACH, FLORIDA, AMENDING ORDINANCE NO. 64-79(c)(1)(2) AND (3) BY DECREASING THE PER FOOT PER DAY CHARGE FOR DOCKAGE USAGE UNDER THE MONTHLY CONTRACT AND CONTRACTS OF FOUR (4) MONTHS DURATION OR MORE; FURTHER AMENDING ORDINANCE NO. 64-79 BY CHANGING THE EFFECTIVE DATE TO OCTOBER 5, 1979; PROVIDING A SAVING CLAUSE; PROVIDING AN EFFECTIVE DATE. (Copy of Ordinance No. 74-79 is on file in the official Ordinance Book) The City Manager 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. The public hearing was closed. Mr. Bird moved for the adoption of Ordinance No. 74-79 amending Ordinance No. 64-79 on Second and FINAL Reading, seconded by Mrs. Durante. Upon roll call Council voted as follows: Mr. Bird - Yes; Mrs. Durante - Yes; Mr. Scheifley - Yes; Mr. Young - Yes; Mayor Weekes - Yes. Said motion passed with a 5 to 0 vote. 8.f. The City Manager reported that Ordinance No. 75-79 relative to annexing Lot 10, Delray Beach Estates, 2440 North Federal Highway, subject to GC (General Commercial) District is before Council for con- sideration on First Reading. This property is presently zoned in the County as CG (General Commercial) and is used as a restaurant. Second and FINAL Reading and public hearing will be held at the meeting on December 10th. Council, at the October 22nd meeting, directed the City Attorney to prepare the ordinance effecting the annexation. The City Manager presented Ordinance No. 75-79: AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DELRAY BEACH, FLORIDA, ANNEXING TO THE CITY OF DELRAY BEACH LOT 10, DELRAY BEACH ESTATES, AS RECORDED IN PLAT BOOK 21, PAGE 13 OF THE PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA, SAID LAND BEING IN SECTION 4, TOWNSHIP 46 SOUTH, RANGE 43 EAST, ~HICH LAND IS CONTIGUOUS TO EXISTING MUNICIPAL LIMITS OF SAID CITY; REDEFINING THE BOUNDARIES OF SAID CITY TO INCLUDE SAID LAND; PROVIDING FOR THE RIGHTS AND OBLIGATIONS OF SAID LAND; AND PROVIDING FOR THE ZONING THEREOF. The City Manager read the caption of the ordinance. Mr. Bird moved for adoption of Ordinance No. 75-79 on First Reading, seconded by Mrs. Durante. Upon roll call Council voted as follows: Mr. Bird - Yes; Mrs. Durante - Yes; Mr. Scheifley - Yes; Mr. Young - Yes; Mayor Weekes - Yes. Said motion passed with a 5 to 0 vote. - 9 - 11/13/79 2q2 9.a. The City Manager reported that the Planning & Zoning Board at a meeting held on October 23rd, recommended by unanimous vote that the final plat approval request for The Point, located on the west side of the Florida East Coast Railroad, between Lindell Boulevard and the C-15 Canal, be approved, subject to the following: 1) City Engineer's memorandum of October 22nd. 2) Director of Public Utilities memorandum of October 12th. 3) Availability of water. Mrs. Durante moved to sustain the recommendation of the Planning & Zoning Board subject to the three contingencies listed in the preface to the agenda, seconded by Mr. Bird. Said motion passed unani- mously. 9.b. The City Manager reported that the Planning & Zoning Board at a meeting held on October 16th, recommended by unanimous vote that the conditional use, site and development plan approval request in the RM-15 (Multiple Family Dwelling) District to allow 29 dwelling units in one five-story building on 1.94 acres for Ocean Place, located south of Miramar Drive, between Gleason Street and A-1-A be approved, subject to the following: 1) City Engineer's memorandum of September 26th. 2) Director of Public Utilities memorandum of September 27th. 3) Availability of water. 4) A time limitation of 18 months be set for develop- ment of the project. This was discussed at the November 5th workshop meeting. Mayor Weekes stated that they will allow Mr. Pitts or any other member of the public who wishes to be heard to come forward after the motion is on the floor. Mr. Bird moved to sustain the recommendation of the Planning & Zoning Board subject to the four items listed in the preface to the agenda, seconded by Mr. Scheifley. Upon roll call Council voted as follows: Mr. Bird - Yes; Mrs. Durante - Yes; Mr. Scheifley - Yes; Mr. Young - No; Mayor Weekes - Yes. Said motion passed with a 4 to 1 vote. Before roll call, Dave Adams presented the site plan to Council and gave a presentation. As was already mentioned, the site is just south of Dover House between A-1-A and Gleason Street; it is 1.94 acres; the zoning is RM-15 permitting 29 units. The proposed develop- ment is 29 units contained in one five-story building. Parking is 58 spaces required, 61 proposed. Zoning permits 40% site coverage; the building would cover only 13% of the site; landscaped area would be 40% of the site; recreation areas would be 18% of the site. Originally, they proposed the development with a setback from A-1-A of 38 feet from the property line to the building plus 11 feet that is actually part of the right-of-way of A-1-A so from the pavement of A-1-A it would have been set back 49 feet. They reproposed it because of the feeling that it was too close to A-1-A and they now have a setback of 81 feet from the pavement at A-1-A. If they were to build a three-story building on this site, which would not require the conditional use approval, the minimum setback on the north side would be 30 feet. They recognized that Dover House did not want to be overshadowed by a five-story building; they have kept the setback on the north side of the property at a maximum relative to the size of the building and that setback would be 51 feet from the north property line. Basically, they've kept the building to the park side of the property rather than to the Dover House side. They have a study that shows that the impact of their building, sunwise, has less impact than were.it a three story building at the thirty foot setback. - 10 - 11/13/79 Mr. Jack Pitts stated that this Planning & Zoning Board approval was unanimous in spite of a petition signed by many of the property owners and residents in the affected area protesting the height of the proposed building. There was a similar situation about 10 years ago where the petitioner applied to build a seven-story building in the same area under the special exception ordinance then in effect. The Planning & Zoning Board at that time approved the building in the face of strong opposition by the residents of the same area. There was a split vote by Council and the building was never built. The present Planning & Zoning Board is faced with a similar problem but they think that the petitioner's proposed building is the best use of the property in this RM-15 zone. The question is why did the Planning & Zoning Board ignore the protests of so many property owners and residents in the area. The Chairman of the Board said that the property owners who protested the building did not understand the zoning laws in this parti- cular area; he said that the Board had no choice but to approve the building because it fit the zoning requirements but he (Mr. Pitts) submits that that is wrong. The Board approved this building under the conditional use ordinance. In order to approve a building under the conditional use ordinance, all requirements of the ordinance must be met. The biggest and most meaningful requirement in that ordinance is that the building must be compatible with the neighborhood. The con- ditional use ordinance protects the neighborhood from excessive height unless the neighborhood is satisfied that the height is compatible with other buildings in that area. ~at better way is there to measure compatibility than by listening to the residents of the affected area. Is it obvious that the neighborhood does not want anything more than three-stories in that area. The Council is within its rights and the law to refuse this five-story building; it is Council's duty to listen to its citizens and to serve them in a legal manner. To pass this petition would be breaking the law because the petition does not meet the conditional use ordinance in full. He doesn't believe that a three- story construction has to be as bad as the petitioner indicates in the diagram. Council must decide whether to violate the conditional use ordinance and allow the developer to build the five-story building or to support the ordinance and in turn support its citizens in that area; clearly it is Council's legal duty to refuse this petition. Mrs. Betty Matthews stated that she represents the Beach Property Owners Association and their association has addressed this issue three times before. They have objected on the basis of five- stories and the principle reason is the precedent that the City was setting on the ocean front. The most recent zoning code states to the public that the height in the City is three stories and any other height would be approved only as a conditional use. At their meeting, a gentle- man asked for the definition of a conditional use so she got out her Code and read it. In essence, the definition says that a conditional use must be of a positive benefit to the public. On that ground alone, it is their belief that this building doesn't come into that category. If the people in the area object to it as not being compatible with the rest of the area, it can hardly be construed as a positive public bene- fit. There is a substantial amount of property still remaining on the ocean front and it is her belief and the belief of the association that if the City allows five stories at this point, it will be hard to stop. They feel that the ocean front is a very unique area to the City of Delray Beach. The MPO ackowledged that about two weeks ago when they unanimously decided to keep A-1-A a two-lane road; they recognized that there was a very special character to Ocean Boulevard. They hope that Council will recognize that the promise of three-story buildings in the present zoning code is a new era in Delray Beach zoning. Their principle concern is for the precedent that is being set on Ocean Boulevard and they are asking that Council seriously consider limiting the area on Ocean Boulevard to three stories in height and not five. Mr. Frank Carey, Chairman of the Planning & Zoning Board, stated that some of what he's heard here really relates to the ordinance and not to the petition. What they're objecting to is the zoning desig- nation on the property in general. They might have to deal with that at a later date but they can't deal with it with the petition before them because that would be illegal; they can't change the ordinance. That area is RM-15 zoning and that's what the Board has to deal with when - 11 - 11/13/79 they look at a petition. What this petition said was general compati- bility with adjacent properties and other property in the zoning dis- trict. He gave an inventory of the properties in that zoning district. Starting at the north end on the Intracoastal Waterway is one ten-story building; at 220 MacFarlane there are two thirteen-story buildings; at 400 Casuarina there is one ten-story building. There are three-story buildings scattered through the area and there is a four-story building on Gleason Street at the corner of Ingraham. There is a five-story building on Ocean Terrace and a five-story building 1% blocks north of the property before them tonight. The Board contends that this petition is compatible with the area. The next question to address is whether or not it should be three stories or five stories. The body of the ordi- nance permits it as a conditional use. Basically, the ordinance says that you can, under certain conditions, build to that height. He has a feeling that many people have lived in that area for a long time think- ing that they lived in either single family or in low density residentia they do not. They are living in the highest designated density classi- fication in this community under the present zoning ordinance. The purpose of the RM-15 district is intended to provide high density, multiple family, residential areas which will be compatible with more restrictive zoning districts. He does not think that any petition coming before the Planning & Zoning Board establishes a precedent for someone else coming before the Board and saying they demand the same height if their site plan isn't acceptable to the Board. They recently had a petition before them on a piece of property about seven blocks north of this site, a six-story proposal. They told the architect to go back to the drawing board because it was unacceptable; there was a single family house to the north of the building and there was a single family house to the south of the building. This site before them is a five-story building. It is set back from A-1-A at the request of the Board. It, in no way, obstructs the southeast breeze nor does it shadowcast the light on the Dover House. It's an open design, the type of design which they find acceptable. The problem with going to three stories is that all your parking then ends up out in the open. The ground floor of this building is covered parking so that reduces the amount of open parking area on the lot which has a distinct advantage. This developer has come to this community with an acceptable, highly desirable plan for that particular difficult piece of property. As a member of the Planning & Zoning Board, there is no way that he would recommend a limit of three stories throughout that district if they are going to keep the RM-15 designation. If they want to save some inter- esting parts of this district, he suggested that they consider, at a later date, designating Nassau Street as a special area because it is a street almost solely single family in nature; they might also consider designating Mirimar Drive from Gleason Street to the ocean as a special area. Mr. Scheifley stated that the Planning & Zoning Board has done what is legal and permitted. A lot of people are objecting to what is being done even though it's legal and has received conditional use approval. %~at they're basically talking about is that they are not agreeing with the present ordinances as far as density is concerned. The only way to cure it so that this problem would never happen in the future would be to reduce the density to 10. Mrs. Durante stated that a lot of good points have been made tonight but as Mr. Carey pointed out there are some things that they can't do with particular projects as far as the ordinance is concerned with regard to the height limitation for the RM-15. This buildin9 is really not exceeding the height limitation that is allowed in RM-15 zoning. Maybe they can do something to preserve those two single family areas, as Mr. Carey suggested, so they won't be encroached upon by high-rise developments like this. Mrs. Matthews stated that she feels that the layperson is very much mislead by what the Code says and by the interpretation of it. Mayor Weekes agreed and stated that they may need to look at the wording in the Code and clarify it. Mr. Carey stated that on page 26 of the ordinance when it talks about maximum floors, it says RM-15, maximum floors five resi- dential floors with a maximum of seven floors overall. - i2 - 11/13/79 Mr. Young complimented the~architect and the developers on the design of their building; it is very attractive. But he is con- cerned about two things; one is the change in the area appearance north of Atlantic Avenue and the other is what this is going to do to the people down on Gleason Street where there are one and two family houses. Mayor Weekes stated that he is persuaded by the open space, the building utilization which is only 13% of the overall land area, the amount of landscaping on the premises and by looking to the south of this project at some buildings that were built a few years ago. He was on Council when one of those buildings was approved and the big cry at that time was let's keep the height down and they did. He is not proud of the project that resulted from it; he doesn't think that it's any en- hancement to the neighborhood, to the beach nor to the people living to the west of it. If they want to change the heights then they should look at the ordinance in its entirety and maybe change the densities and tailor the height to fit the density. He cannot see any aesthetic ad- vantage with a three-story building taking up that much more of the space on that piece of ground. At this point the roll was called to the motion. 9.c. The City Manager reported that the Planning & Zoning Board at a meeting held on October 16th, considered an annexation request of a 25-acre parcel of land (Duvall-Chua), subject to RM-6 (Multiple Family Dwelling) District. The property is located in Sections 13-46-43 and 18-46-43, southeast corner of Barwick Road and the L-32 Canal. The property is presently zoned AG (Agricultural) in the County. After dis- cussion, a motion was made to recommend to Council that the property be annexed as RM-6 (Multiple Family Dwelling) District. The motion failed unanimously. The Planning & Zoning Board rejected this annexation peti- tion for the following reasons: 1) The Planning & Zoning Board continues to support its original "single family" designation for this prop- erty. The new land use designation, as amended and adopted by Council, does not alter the conclusions arrived at by this Board following months of careful study. In essence, the Board stuck to its guns and voted its conscience. 2) The area in question was historically single family in character, long before the first multi-family development appeared on the scene, a fact forgotten by most. 3) Single family development has always been compatible with medium density multi-family; therefore, the property in question could logically be developed as single family. To conclude otherwise is to say that only multi-family zoning is acceptable. A question: Where does one draw the line? 4) The Board's legitimate and long time concern for the ever increasing burden on the City's strained re- sources. 5) Board members were troubled by the manner in which the Land Use designation for this property was changed. This item was on the October 22nd agenda and was deferred at the request of the attorney for the applicant. Mr. Scheifley moved that Council sustain the recommendation of the Planning & Zoning Board. The motion died for lack of a second. Sally Benson, attorney for the petitioners, stated that her client has agreed to unconditionally convey a drainage easement which, as she understands, is badly needed to help drain water from the High Point property into the L-32 Canal. They have reviewed the engineer's plans and the legal description and within seven days an executed ease- ment will be in the hands of the City Attorney. They are asking that their property be annexed into the City in accordance with the desig- nated land use plan, RM-6. She gave a brief description of the areas surrounding their property and stated that they look forward to becoming a part of the City. - 13 - 11/13/79 Mr. Bird moved that the City Attorney be instructed to prepare the annexation ordinance utilizing RM-6 as the zoning authoriza- tion for the property in question and also a resolution addressed to the County, seconded by Mr. Young. Upon roll call Council voted as follows: Mr. Bird - Yes; Mrs. Durante - No; Mr. Scheifley - No; Mr. Young - Yes; Mayor Weekes - Yes. Said motion passed with a 3 to 2 vote. Mr. Scheifley stated that he feels that the action that was just taken should have been delayed until after the offer of the ease- ment was implemented. Mrs. Durante stated that she had some problems with this situation. She thinks it is the most unethical thing that she has ever seen happen on this Council. Mayor Weekes declared the meeting adjourned at 9:10 P.M.  City Clerk ATTEST: MAYOR 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 Council of November 13, 1979, which minutes were formally approved and adopted by the City Council Clerk NOTE TO READER: If the minutes that you have received are not completed as indicated above, then this means that these are not the official minutes of City Council. 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. - 14 - 11/13/79