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Agenda Reg 11-18-03City of Delray Beach Regular Commission Meeting Tuesday, November 2003 Regular Meeting 6:00 p.m. Public Headngs 7:00 p.m. Commission Chambers Delray Beach City HaH 100 N'~ lat Avenue Delray Beach, Florida 32~ Phone: (561) 243-7000 Fax: (561) 243.3774 RULE~ FOR PUBLIC PARTICIPATION 1. PUBLIC COMMENT: The public is encouraged to offer comments with the order of presentation being as follows: City Staff, public comments, Commission discussion and official action. City Commission meetings are business meetings and the right to limit discussion rests with thc Commission. Generally, remarks by an individual will be limited to three minutes or less, Thc Mayor or presiding officer has discretion to adjust the amount of time allocated. A. Public Hearings: Any citizen is entitled to speak on items under this section. Comments and Inquiries on Non-Agenda Items from the Public: Any citizen is entitled to be heard concerning any matter within the scope of jurisdiction of the Commission under this section. The Commission may withhold comment or direct the City Manager to take action on requests or comments, Ce Regular Agenda and First Reading Items: When extraordinary circumstances or reasons exist and at the discretion of the Commission, citizens may speak on any official agenda item under these sections. 2. SIGN IN SHEET: Prior to the start of the Commission Meeting, individuals wishing to address public hearing or non-agendaed items should sign in on the sheet located on the right side of the dais. If you are not able to do so prior to the start of the meeting, you may still address the Commission on an appropriate item. Thc primary purpose of the sign-in sheet is to assist staff with record keeping. Therefore, when you come up to the podium to speak, please complete the sign-in sheet if you have not already done so. 3. ADDRESSING THE COMMISSION: At the appropriate time, please step up to the podium and state your name and address for the record. All comments must be addressed to the Commission as a body and not to individuals. Any person making impertinent or slanderous remarks or who becomes boisterous while addressing the Commission shall be barred by the presiding officer from speaking further, unless permission to continue or again address the Commission is granted by a majority vote of thc Commission members present. APPELLATE PROCEDURES Please be advised that if a person decides to appeal any decision made by the City Commission with respect to any matter considered at this meeting, such person will need to ensure that a verbatim record includes the testimony and evidence upon which the appeal is based. The City neither provides nor prepares such record. The City will furnish amriliary aids and services to afford an individual with a disab'flity an opportunity to participate in and enjoy the benefits of a service, program, or activity conducted by the City. Contact Doug Randolph at 243- 7127 (voice) or 243-7199 (TDD), 24 hours prior to the event in order for the City to accommodate your request. Adaptive listening devices are available for meetines in the Commtssion Chambers. 2. 3. 4. 5. ROT ~T~ ~ T.T.~ INVOCATION. PLEDGE OF fl. TJ.EGIANCE TO THE FLAG. AGENDA APPROVAL. APPROVAL OF MINUTES: · November 4, 2003 - Regnhr Meeting PROCLAMATIONS: Ao Recognizing and commending Deltay Medical Center Recognizing and commending Jewish War Veterans Ladies Amdli~ry National President - Emma-Lou Rosenstein PRESENTATIONS: Site Plan Review and Appearance Board (SPRAB) Awards City of Delray Beach Residents' Academy Certificates -Janet Meeks CONSENT AGENDA: City Manager Recommends Approval. FINAL BOUNDARY PLAT APPROVAL/HERITAGE CLU[I; Approve the boundary plat for Heritage Club (a.k.a. Park Place Townhomes), located on the south side of S.E. 10' Street between Federal Highway and Old Dixie Highway. ACCEPTANCE OF EASEMENT DEEDS/TOWNPLACE AT I~ELRAY: Approve and accept easement deeds from David Stem and Savion Developers, L.L.C. for the maintenance ora sidewalk along N.E. 6' Avenue. FLORIDA EAST COAST RAILWAY COMPANY (FEC)/ATLANTIC AVENUE CROSSING: Approve payment in the mount of $45,453.57 to the Florida East Coast Railway Company for reconstruction of the East Atlantic Avenue crossing. Funding is awi!~ble from 334-3162-541-61.17 (General Construction Fund/Street Reconstruction). RESOLUTION NO. 77-03: Approve Resolution No. 77-03 supporting expansion of the membership of the Palm Beach Metropolitan Planning Organization (MPO) to include voting representatives for Greenacres, Royal Palm Beach, and Wellington. LICENSE AGREEMENT/WOI~ I .F}WIDE ENTERTAINMENT. INC: Approve a license agreement between the City of Delray Beach and Worldwide Entertainment, Inc. for events to be held at the Delray Stadium. 11-18-2003 AGREEMENT/VIIJ.&GE FOUNDATION: Approve an agreement between the City and the Village Foundation, Inc. in the amount of $52,130.00 for a partnership with the Delray Beach Parks and Recreation Deparmient for teen programming at Pompey Park. Funding is available from 001-4127-572-83.01 (Parks & Recreation/C.S. Pompey Recreation Facility/Other Grants and Aids). UTILITY IMPROVEMENT AGREEMENT/CITY CENTER DEVELOPMENT. L.L.C.: Approve a utility agreement between the City and City Center Development, LZ,.C., developers of Ocean City Lofts, in the amount of $59,970.00 for the installation of utility improvements (sanitary sewer, drainage, and reclaimed water) on N.E. 4~ Avenue. Funding is available from 441-5181-536-65.96 (Reclaimed Water Transmission), 442-5178-536-63.51 (Sanitary Sewer Upgrades), and 448-5461-538-65.81 (N.E. 4t~ Avenue). CHANGE ORDER NO. 2/REED LANDSCAPING. INI~,; Approve Change Order No. 2 in the amount of a $43,426.16 decrease to Reed Landscaping, Inc. for the Lake Ida Road Beautification Project. Funding is available from 119-4151-572-63.20 (Beautification Trust Fund/Landseal~mg/Beautification). REVIEW OF APPEALABI.~ LAND DEVELOPMENT BOARD ACTIONS: Accept the actions and derisions made by the Land Development Boards for the period November 3, 2003 through November 14, 2003. AWARD OF BIDS AND CONTRACTS: Purchase award to Otto Industries Systems in the amount of $23,~.~.~..00 for the purchase of garbage carts with lids as a sole source purchase. Funding is available from 433-3711-534-49.35 (Sanitation/Cart Renewal and Replacement). REGULAR AGENDA: REOUEST TO REDUCE LIENS/COMMUNITY REDEVELOPMENT AGENCY: Consider a request from the Community Redevelopment Agency (CRA) to waive the interest and administrative fees in the amount of $3,547.03 assessed for abating nuisances on property located at 222 S.W. 34 Avenue. The Community Redevelopment Agency is prepared to pay the remaining lien of $2,313.60. Staff recommends approval. REOUEST TO REDUCE LIENS/ARS~II. Consider a request from lvir. Nichohs Arsali to waive the interest and admirlistrative fees tot~!ir~g $3,443.38 assessed for abating nuisances on property located at 231 N.W. 8th Avenue. Mr. Arsali is prepared to pay the City's out-of-pocket expenses in the amount of $7,329.90. Staff recommends approval 11-18-2003 10. REOUEST TO REDUCE LIENS/ROBINSON: Consider a request fi.om Ms. Jacqueline Rol~mson to waive the interest and administrative fees totaling $1,156.06 assessed for abating nuisances on property located at 45 S.W. 13t~ Avenue. Ms. Robinson is prepared to pay the City's out-of-pocket expenses in the mount of $4,617.28. Staff recommends approval. RESOLUTION NO. 78-03: Consider approval of Resolution No. 78-03 authorizing the City of Delray Beach to issue Revenue Bonds not to exceed $9,685,000 for the purpose of refinancing the City's 2002A, 2002B, and 1999 Revenue Bonds, and the cost associated with the new library project. PROPOSAL FOR SETTLEMENT IN MARTINEZ v. CITY OF DELRAY BEACH: Consider a Proposal for Settlement in the amount of $5,000.00 in Martinez v. City of Delray Beach. Staff recommends acceptance. PROPOSAL FOR SETTLEMENT IN ERNESTO FIGUEROA v. CITY OF DELRAY BEACH: Consider a Proposal for Settlement in the amount of $50,000.00 in Emesto Figueroa v. City of Delray Beach. Staffrecommends denial. APPOINTMENTS TO THE EDUCATION BOARD: Appoint two (2) student members to the Education Board, one (1) for a two (2) year term ending July 31, 2005 and one (1) for a one (1) year term ending July 31, 2004. Based on the rotation system, the appointments will be made by Commissioner Levinson (Seat #3) and Commissioner McCarthy (Seat #4). APPOINTMENTS TO THE NUISANCE ABATEMENT BOARD: Appoint the fonowing members to the Nuisance Abatement Board; two (2) regmlar members for unexpired terms ending March 31, 2004 and March 31, 2005 and one (1) a/tematt member for an unexpired term ending March 31, 2005. Based upon the rotation system, the appointments will be made by Commissioner Levinson (Seat #3), Commissioner McCarthy (Seat #4), and Mayor Perlman (Seat #5). PUBLIC HEARINGS: ORDINANCE NO. 45-03: An ordinance rezoning from AC (Automotive Commercial) to GC (General Commercial) for a 0.73 acre parcd of land located at the southwest comer of S.E. 6~h Avenue (northbound Federal Highway) and S.E. 9~ Street (550 S.E. 9~ Street). (Quasi-JudicialHearing) ORDINANCE NO. 42-03 (SECOND READING/SECOND PUBLIC HEARING): An ordinance amending Chapter 4, "Zoning Regulations", of the Land Development Regulations, Section 4.3.3(V) "Uses Involving Alcoholic Beverages" to provide for a definition of alcoholic beverage that is consistent with State Statutes and a distance limitation between Stand Alone Bars. 11-18-2003 11. 12. 13. ORDINANCE NO. 43-03 (FIRST READING/FIRST PUBLIC HEARING); An ordinance mending Chapter 4, "Zoning Regulations", of the Land Development Regulations, Section 4.3.3(AA) "Adult Entertainment Establishments" to amend the distance limitation between any adult entertainment establkqhment and alcoholic beverage establishment. If passed, a second public heating will be scheduled for December 2, 2003. ORDINANCE NO. 44-03 (FIRST READING/FIRST PUBLIC HEARING): An ordinance amending Chapter 113, "Alcoholic Beverages", of the C~ty Code of Ordinances, Section 113.20 "Prohibition of Nudity, Partial Nudity and Sexual Conduct at Alcoholic Beverage Establishments" to change distance limitations and include Stand Alone Bars. If passed, a second public heating will be scheduled for December 2, 2003. COMMENTS AND INQUIRIES ON NON-AGENDA ITEMS FROM THE PUBLIC- IMMEDIATELY FOI.I.OWING PUBLIC HEARINGS. A. City Manager's response to prior public commcllts and inquiries. B. From the Public. FIRST READINGS: NONE COMMENTS AND INQUIRIES ON NON-AGENDA ITEMS. A. City Manager B. City Attorney C. City Commission POSTED: NOVEMBER 14, 2003 11 - 18-2003 CITY COMMISSION CITY OF DELRAY BEACH~ FLORIDA REGULAR MEETING - TUESDAY ~ NOVEMBER 18, 2003 6:00 P.M. - COMMISSION CHAMBERS AGENDA ADDENDUM THE REGULAR AGENDA IS AMENDED BY ADDING THE FOLLOWING ITEM: 9. REGULAR AGENDA: A.1. RECONSIDERATION OF THE CITY COMMISSION'S DECISION/EXC~-I. RESTAURANT: The applicant is requesting a reconsideration of the City Commission's denial of the conditional use request to allow the establishment of a 24- Hour or Late Night Business to be located with/n 300 feet of resideotial!y-zoned property for Excel Restaurant, to be located within the Linton Square Shopping Center at the northeast comer of Linton Boulevard and Congress Avenue. Please be advised that if a person decides to appeal any decision made by the City Commission with respect to any matter considered at this meeting, such person will need to ensure that a verbatim record includes the testimony and evidence upon which the appeal is based. The City neither provides nor prepares such record. NOV'IT-2003 TO:46AM MICHAEL a, WEINER ~M~OLE J. ARONSON JASON 8. MANXOFF FROM-WEINERARON$ON WEINER & ARONSON, P.A. ATrORNEYS AT LAW The Clark House 102 North Swinton Avenue DeJray Beach, FIo~lcla 33444 Telephone: (561) 265-2666 Tele~pier: (561) 272-6831 E-mall: mweiner(~zonelaw.com T-167 P.OO~'/OOZ F-806 CITY COMMISSION OF COUNS[I · ROBERT ~ SOHWARI-Z~ PA. Flodda Bar Boa~ Cat.ecl Real Estate ] ,,wyer MI~.HAEL I1. FUkRRIS LLM. (In Ta.mtio~) November 17, 2003 Mayor Jeff Perlman 1 oo N.W. 1 =~ Avenue Delray Beach, Florida 33444 Re: Conditional Uae Request to Establish a Late-Night Bu$1neas for Excel Restaurant Our File No,: EXCB002 Dear Jeff:. The City Commission denied our client's application at its meeting of November 4, 2003. We believe that this denial was a result of poor communications to the City Commission In explaining the specific nature arid conduct of the business. Similarly, it is our position that our client's application meets all of the r~ulrements for the conditional use and we would like the opportunity to explain to the City Commission the apparent issues such as security, hours of operation and neighborhood support. After discussions with the City Attorney's office, it is our understanding that this matter may be reconsidered by the City Commission If the Mayororone of the City Commissioners requests a reconsideration of the matter. We respectfully request that you request a reconsideration of this matter at your meeting of November 18, 2003. We believe that this would provide both the applicant and the City Commission a better understanding of all the issues involved. Please understand that a vote for reconsideration does not indicate that you are necessarily in favor of the application, but that you believe that it is important to hear all the facts In making your decision. w~ppreclate your time in considering this request. M8W:ab Susan Ruby, Esq. (via hand-delivery) Mr. Belony Excellent (via hand. delivery) City Clerk (via hand-delivery) Mr. Paul Dodlng (via hand-delivery) Jason S. Mankoff, Esq, NOVEMBER 4, 2003 A Regular Meeting of the City Commission of the City of Delray Beach, Florida, was called to order by Mayor Jeff Perlman in the Commission Chambers at City Hall at 6:00 p.m., Tuesday, November 4, 2003. Roll call showed: Present - South. Commissioner Patricia Archer Commissioner Bob Costin Commissioner Jon Levinson Commissioner Alberta McCarthy Mayor Jeff Perlman Absent - None Also present were - David T. Harden, City Manager Robert A. Barcinski, Assistant City Manager Susan A. Ruby, City Attorney Barbara Garito, City Clerk The opening prayer was delivered by Reverend Richard Evans with Abbey Delray The Pledge of Allegiance to the flag of the United States of America was given. AGENDA APPROVAL. Mayor Perlman stated the CRA has requested Item 9.C., CRA Request to Release Liens be removed. Mayor Perlman noted the addition of Item 9.J., Direction Regarding the Recreation Centers~ Parks and Cultural Facilities Bond Issue~ by addendum. Mayor Perlman stated Item 10.D., Ordinance No. 43-03 and Item 10.E, Ordinance No. 44-03 have been postponed. Upon roll call the Commission voted as follows: Mr. Costin - Yes; Mrs. Archer Yes; Mr. Levinson - Yes; Ms. McCarthy - Yes; Mayor Perlman - Yes. Said motion passed with a 5 to 0 vote. APPROVAL OF MINUTES: Mr. Levinson moved to approve the Minutes of the Regular Meeting of October 21, 2003, seconded by Ms. McCarthy. Upon roll call the Commission voted as follows: Mrs. Archer - Yes; Mr. Levinson - Yes; Ms. McCarthy - Yes; Mayor Perlman - Yes; Mr. Costin - Yes. Said motion passed with a 5 to 0 vote. 6_. PROCLAMATIONS: 6oAo Recognizing and commending Brittany Roxburv Mayor Perlman read and presented a proclamation hereby recognizing and commending Brittany E. Roxbury on her many accomplishments and congratulates her on becoming the National 2003 AAU Junior Olympic Games Champion. Brittany E. Roxbury came forward to accept the proclamation. 6oao Recognizing Rainberry Bay's 25th Anniversary Mayor Perlman read and presented a proclamation hereby recognizing Rainberry Bay on its 25th Anniversary in the City of Delray Beach, Florida. Jay Slavin came forward to accept the proclamation. 6oC, "KeeoimI the Charm Month" - November 2003 Mayor Perlman read and presented a proclamation hereby proclaiming the month of November 2003 as "Keeping the Charm" month. Diane Colonna, CRA Director, came forward to accept the proclamation. PRESENTATIONS: 7.A. "Spotlight on Education" - Judy Klinek~ Director of Accelerated Academic Achievement (AAA) Plan Janet Meeks, Education Coordinator, stated they are continuing their "Spotlight on Education" this evening and as a result of "No Child Left Behind", Palm Beach County School District has implemented a new plan entitled "Accelerated Academic Achievement (AAA) Plan". Judy Klinek, Director of Accelerated Academic Achievement (AAA) Plan, stated this program was implemented last year as the Palm Beach County School District looked at ways to close the gap of students with high needs and increase their achievement level. Mrs. Klinek stated the one common element was to differentiate resources. Mrs. Klinek stated the first step was to determine which schools would receive additional support and resources. They used a weighted formula that included looking at the student population, the number of students on free and reduced lunch, the number of students with disabilities, and the number of students for which English is not their primary or first language. They then looked at the performance of these students last year on FCAT. Mrs. Klinek stated this has nothing to do with the schools grades but instead has a lot to do with the complicated high needs population of the schools. The majority of funding for this program comes fi'om Amendment 9 which the voters of Florida passed last year to reduce class size, using federal money, and a very large grant was written to provide some additional resources. Mrs. Klinek stated they hope to see not only an occasional good grade but achievement raised for every student in these schools. -2- 11/04/03 7DaD Lights On After School Program - Joe Weldon Tonya Smith, Director for the Out of School Program, stated the "Lights on Afterschool" is the only nationwide event calling attention to Afterschool programs and their important role in the lives of children, families and communities. One selected student from each site wrote an essay about "What Afterschool Means to Me". The following individuals read their essays into the record: Jessica Oliveras - Delray Beach Community Center Jason-Ray Swaby - Pompey Park Recreation Center Corinthian Wilson - Pine Grove Elementary School CONSENT AGENDA: City Manager Recommends Approval. 8.A. RATIFICATION OF THE SOUTH CENTRAL REGIONAL WASTEWATER TREATMENT AND DISPOSAL BOARD ACTIONS: Approve and ratify the actions of the South Central Regional Wastewater Treatment and Disposal Board at their Quarter Annual Meeting of October 16, 2003. 8.B. SOUTH CENTRAL REGIONAL WASTEWATER TREATMENT AND DISPOSAL BOARD/RESOLUTION NO. 1-03: Approve South Central Regional Wastewater Treatment and Disposal Board's (SCRWTD) Resolution No. 1-03 modifying Resolution No. 9- 81 to allow SCRWTD to retain the collected Sinking Fund user charges rather than distributing them to the Cities of Delray Beach and Boynton Beach. 8.C. FINAL SUBDIVISION PLAT APPROVAL/HAMILTON PLACE: Approve the subdivision plat for Hamilton Place, located on the northeast comer of S.E. 6th Avenue and S.E. 3rd Street. good FDOT GENERAL USE PERMIT & HOLD HARMLESS AGREEMENT/ HAMILTON PLACE: Authorize the City to act as the utility permit applicant for the construction of a water main extension within the state right-of-way (located at the northeast comer of S.E. 3ra Street and northbound Federal Highway) and approve a Hold Harmless Agreement with the developer (Savion Developers at Park Place, L.L.C.). 8.E. ACCEPTANCE OF EASEMENT DEED/LONE PINE ROAD: Approve and accept an casement deed between Fine Built Construction, Inc. and the City to allow for the extension of a water main onto Lone Pine Road, located west of Davis Road and just south of the northern City boundary. 8.F. RESOLUTION NO. 74-03: Approve Resolution No. 74-03 assessing costs for abatement action required for the emergency board-up of an unsafe structure located at 2655 Dorson Way. The caption of Resolution No. 74-03 is as follows: -3- 11/04/03 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, PURSUANT TO ARTICLE 7.8, "UNSAFE BUILDINGS", OF THE LAND DEVELOPMENT REGULATIONS 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. (The official copy of Resolution No. 74-03 is on file in the City Clerk's Office.) 8.G. RESOLUTION NO. 75-03: Approve Resolution No. 75-03 assessing costs for abatement action required to remove nuisances on twenty (20) properties throughout the City. The caption of Resolution No. 75-03 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) LOCATED WITHIN THE CITY OF DELRAY BEACH AND PROVIDING 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 ABATEMENT 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. (The official copy of Resolution No. 75-03 is on file in the City Clerk's Office.) 8./t. RESOLUTION NO. 76-03: Approve Resolution No. 76-03 assessing costs for action necessary to remove junked and/or abandoned vehicles from five (5) properties within the -4- 11/04/03 City. The caption of Resolution No. 76-03 is as follows: A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, PURSUANT TO CHAPTER 90 OF THE CODE OF ORDiNANCES OF THE CITY OF DELRAY BEACH, ASSESSING COSTS FOR ABATiNG NUISANCES BY REMOViNG JUNKED AND/OR ABANDONED VEHICLES WITHIN THE CITY OF DELRAY BEACH; SETTING OUT ACTUAL COSTS iNCURRED BY THE CITY TO ACCOMPLISH SUCH ABATEMENT AND LEVYiNG SAID COSTS; PROVIDiNG FOR AN EFFECTIVE DATE AND FOR A DUB 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; PROVIDING FOR THE MAILING OF NOTICE OF LIEN. (The official copy of Resolution No. 76-03 is on file in the City Clerk's Office.) 8.I~ CHANGE ORDER NO. 1/FINAL PAYMENT/RPM GENERAL CONTRACTORS~ INC.: Approve Change Order No. 1 in the amount of a $310.36 decrease, and final payment in the amount of $4,545.69 to RPM General Contractors, Inc. for completion of the Pompey Park Interior Improvements Project. Funding is available from 334-4172-572- 46.10 (General Construction Fund/Building Maintenance). 8.J~ SERVICE AUTHORIZATION NO. 18fMATHEWS CONSULTING~ INC.: Approve Service Authorization No. 18 to Mathews Consulting, Inc. in the amount of $126,827.00 for engineering design services regarding Area 1 of the City's reclaimed water system. Funding is available from 441-5181-536-65.96 (Reclaimed Water Transmission). 8.I{. RESOLUTION NO. 73-03: Approve Resolution No. 73-03 authorizing the City to purchase property for drainage retention located at Lot 14, Block B, Carver Memorial Park (N.W. 15th Avenue), and Contract for Sale and Purchase between the City and the Rufus Norman Estate in the amount of $17,597.00. The caption of Resolution No. 73-03 is as follows: A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AUTHORIZING THE CITY TO PURCHASE CERTAIN REAL PROPERTY IN THE CITY OF DELRAY BEACH, WHICH PROPERTY IS LOCATED AT LOT 14, BLOCK B, CARVER MEMORIAL PARK AS MORE PARTICULARLY DESCRIBED HEREiN, HEREBY INCORPORATING AND ACCEPTING THE CONDITIONS AND TERMS OF THE CONTRACT FOR SALE AND PURCHASE -5- 11/04/03 BETWEEN THE CITY OF DELRAY BEACH AND THE RUFUS NORMAN ESTATE. (The official copy of Resolution No. 73-03 is on file in the City Clerk's Office.) 8.L. SPECIAL EVENT REQUEST/ART & JAZZ ON THE AVENUE: Approve and endorse the Art & Jazz on the Avenue scheduled for December 11, 2003 from 6:00 p.m. to 10:00 p.m., granting a temporary use permit per LDR Section 2.4.6(H) for the closure of Atlantic Avenue from Swinton to N.E. 7th Avenue, the south side of Atlantic Avenue from N.E. 7th Avenue to just past the Blue Anchor Pub, Railroad Drive from Atlantic Avenue to N.E. 1st Street, N.E. 2nd Avenue from Atlantic Avenue to N.E. 2nd Street, and authorize staff support for security and traffic control, banner hanging and removal, barricade set-up/removal, trash removal and clean up, and use/set-up of City stages. 8.M. SPECIAL EVENT REQUEST/17th ANNUAL TURKEY TROT: Approve a special event request to allow the 17th Annuai Turkey Trot to be held on Saturday, November 22, 2003 from 7:30 a.m. until approximately 8:30 a.m., including temporary use permit per LDR Section 2.4.6(H) for the closure and use of A-1-A from Casurina to George Bush Boulevard and Casurina from Gleason to A-1-A from 5:00 a.m. to approximately 10:00 a.m., and authorize staff support for security and traffic control, barricade set-up/removal, trash removal and clean up, use of small stage, and waiver of parking meter fees for Sandoway, Ingraham, and Anchor Park as well as along Atlantic Avenue from Venetian to A-1-A from 8:00 a.m. until approximately 10:00 a.m. 8.N. CHRIS EVERT PRO-CELEBRITY TENNIS CLASSIC: Approve an agreement between the City of Delray Beach and Chris Evcrt Charities, Inc. for the Chris Evcrt Pro-Celebrity Tennis Classic to be held at thc Tennis Center on December 6-7, 2003. APPOINTMENT OF OUTSIDE COUNSEL ON CASES RELATING TO MATTERS RAISED IN HOFFERT AND OTHER RELATED CASES: City Attorney seeks approval for outside council on above named cases. 8.P. DEVELOPER AGREEMENT/YORK BUILDERS~ INC.: Approve an agreement between the City and York Builders, Inc. in the amount of $10,600.00 for roadway improvements in the 1000 Block of S.W. 8th Avenue. 8.Q. REQUEST FROM THE DELRAY BEACH GARLIC FESTIVAL: Approve a request from The Delray Beach Garlic Festival for the utilization of the parking lot owned by Dharma Holdings, LTD., located on Block 86 for a special event (Garlic Fest) to be held November 7, 2003 through November 9, 2003. 8.R. PAYMENT OF RETAINAGE/FLORIDA BLACKTOP: Approve payment of retainage plus interest to Florida Blacktop. The final payment for the N.E./N.W. project is $101,816.38; final payment for the S.E./S.W. project is $28,254.54. -6- 11/04/03 8.S. REVIEW OF APPEALABLE LAND DEVELOPMENT BOARD ACTIONS: Accept the actions and decisions made by the Land Development Boards for the period October 20, 2003 through October 31, 2003. 8oTo AWARD OF BIDS AND CONTRACTS: Contract award to Mora Engineering Contractors, Inc. in the amount of $109,773.37 for the construction of approximately 1200 feet of 24 inch reclaimed water main along the west side of the LWDD E-4 Canal north of Atlantic Avenue. Funding is available from 441-5181-536-65.96 (Reclaimed Water Transmission). Purchase award to R.B. Grove Inc. in the amount of $31,400.00 for a 100 KVA trailer mounted generator. Funding is available fi.om 442-5178-536- 64.90 (Water/Sewer Renewal and Replacement Fund/Other Machinery/Equipment). Purchase award to IBM Business Partner, Midrange Support and Service, Inc. in the amount of $582,932.00 via State Contract #250-000-031 for the purchase of two (2) IBM iSeries Servers, Model 9406-810. Funding is available fi.om 334-6112-519-64.11 and 334-6112-519-66.10 (Repair and Replacement Fund). Mr. Costin moved to approve the Consent Agenda, seconded by Mrs. Archer. Upon roll call the Commission voted as follows: Mrs. Archer - Yes; Mr. Levinson - Yes; Ms. McCarthy - Yes; Mayor Perlman - Yes; Mr. Costin - Yes. Said motion passed with a 5 to 0 vote. REGULAR AGENDA: 9oAo APPEAL OF ADMINISTRATIVE INTERPRETATION/ATLANTIC PALMS: Consider an appeal of an administrative interpretation regarding the direction to the Planning and Zoning Board that a site plan whether or not it meets the criteria under Section 4.4.6(1) should not be considered given the nature of the development proposal i.e.: a rezoning. (Quasi-Judicial Hearing) Mayor Perlman read into the record the City of Delray Beach procedures for conducting a Quasi-Judicial Hearing for this item and all subsequent Quasi-Judicial Heating item held this evening. The City Clerk swore in those individuals who wished to give testimony on this item. Mayor Perlman asked the Commission to disclose any ex parte communications. Mr. Costin stated he had a discussion with Michael Weiner and Brenda Montago. Mrs. Archer stated she had a discussion with Michael Weiner and Larry Carlson and although she received a telephone message from Brenda Montago she did not speak with her. Ms. McCarthy stated she -7- 11/04/03 spoke to Michael Weiner and Brenda Montago. Mr. Levinson stated he spoke to Michael Weiner. Mayor Perlman had no ex parte communications to disclose. Paul Doffing, Director of Planning and Zoning, entered the Planning and Zoning Department project file #2003-353 into the record. Mr. Doffing stated at their meeting of October 17, 2003, the Planning and Zoning Board considered a rezoning request from POC (Planned Office Center) to RM-11 (Medium Density Residential - 11 units per acre maximum) for a proposed development to be known as Atlantic Palms. Staff's presentation centered around the required findings of LDR Chapter 3, LDR Section 2.4.5(D)(5) (Rezoning Findings), LDR Section 3.2.2 (Standards for Rezoning Actions) as well as the associated comprehensive policies which require development of remaining properties to be of a density that is complimentary and appropriate given these adjacent and prevailing patterns of the surrounding area. The applicant's presentation centered on similar findings and included a detailed analysis of the proposed site plan for the project subject to performance standards of the LDR Section 4.4.6(1). In addition, he reiterated that the Planning and Zoning Board was told that this was a rezoning application and therefore a specific site plan was not appropriate to consider at this time. At this point, Mr. Doffing entered into the record additional documentation regarding the performance standards being reviewed at the site plan stage after a suffix had been applied. Michael Weiner, Attorney representing Atlantic Palms, stated this concerns the land development regulations and its interpretation. Mr. Weiner stated he is here this evening to consider a technical question concerning procedures on rezoning within the City of Delray Beach. Mr. Weiner stated everyone concurs that the Commission has to consider required findings of Chapter 3 and LDR 2.4.5(D)(5). However, Mr. Weiner stated what they do not agree on is whether or not LDR Section 4.4.6(1) should be considered. Mr. Weiner explained the seven standards for a rezoning are traffic calming, reduced massing, increased landscape setback, varied streetscapes, varying floor plans, open space and native habitats, bicycle and pedestrian networks. Mr. Weiner made reference to the words "approving body" of the ordinance and made reference to Article 2.2 of the LDR's - Establishment of Boards Section 2.2.2 - The Planning and Zoning Board, Subsection 2.2.2(E)(6) Duties, Powers, and Responsibilities - "The approval or denial of site and development master plans as required in certain "planned" zoning districts". Mr. Weiner reiterated that according to the language of the LDR's the Planning and Zoning Board has the authority to take the actions on site plans. Mr. Weiner stated he is requesting that the administrative interpretation be overturned and if the applicant requests at his option that a suffix be considered that he be allowed to exercise the powers that were given to the Planning and Zoning Board to consider a site plan in connection with a rezoning application. -8- 11/04/03 Mayor Perlman stated anyone from the public who would like to address the Commission regarding the appeal, to come forward at this time. No one from the public came forward to address the Commission regarding the waiver. At this time, Mr. Doffing stepped forward to give his rebuttal: Mr. Doffing stated Mr. Weiner's comment about establishing density with a suffix is incorrect information. Mr. Doffing stated to establish a maximum density with a suffix means performance standards are considered during the site plan process to establish the appropriateness of between six units and the maximum suffix applied. Secondly, Mr. Dorling stated the reference to LDR Section 2.2.2 talks about the Planning and Zoning Board and certain site development plans and explained this is for actions that are specifically designated for the Planning and Zoning Board to consider (i.e. site plans associated with an SAD and site plans associated with a Master Plan development in which they have final action). Mr. Doffing stated the reference Mr. Weiner made to SPRAB being the entity in most cases which looks at site plans and explained the wording is like this to cover the two issues with the Planning and Zoning Board and HPB which sees site plans in the HPB district. In addition, he reiterated that the Planning and Zoning Board was told this was a rezoning application. At this time, Mr. Weiner stepped forward to give his rebuttal: Mr. Weiner stated he feels it is not up to the applicant to be a mind reader of the City Code. Mr. Weiner stated the words "approving body must make a finding" indicate that more than one body can do this. Mr. Weiner stated in 1999 the Director of Development at that time came before the Commission and in a rezoning stated performance standards are required. Mr. Levinson made reference to Slide #19 and stated site plans can change and he would hope that we zone based on compatibility with surrounding neighborhoods rather than zone based upon a particular site plan. Mr. Levinson expressed concern that once an applicant comes forward with a zoning request if they were to receive an RM zoning and then go to SPRAB or HPB and receive a designation suffix that makes it appropriate for them then they cannot go back to GC or whatever the zoning may be. Mr. Levinson stated there should be some methodology by which they reserve the right until the zoning is complete. The City Attorney stated the applicant can withdraw their zoning application at any time. The City Manager stated his interpretation of it would be when the site plan went to the Site Plan Review and Appearance Board they would have to make those determinations in order for the applicant to get more than six units to the acre. Mrs. Archer asked if something can be done to make the process a little easier for a developer to follow the guidelines. The City Manager stated the Commission needs to figure out a way to coordinate it so the developer does not end up with something he does not want or something different from what he actually applied for. -9- 11/04/03 Brief discussion followed by staff and the Commission. Mr. Levinson moved approval of the appeal, seconded by Ms. McCarthy. Upon roll call the Commission voted as follows: Mr. Levinson - No; Ms. McCarthy - No; Mayor Perlman - No; Mr. Costin - No; Mrs. Archer - No. Said motion to approve the appeal was DENIED with a 5 to vote. At this point, the time being 7:00 p.m. the Commission moved to the duly advertised Public Hearings portion of the agenda. PUBLIC HEARINGS: 10.A. ORDINANCE NO. 41-03 (SECOND READING/SECOND PUBLIC HEARING): An ordinance amending Chapter 2, "Administrative Provisions", of the Land Development Regulations by amending Section 2.4.6(H), "Temporary Use Permit" to add horse drawn carriage rides, ice skating rink, carousel and other related holiday/seasonal temporary uses authorized by the City Commission. Prior to consideration of this item, a second reading/second public hearing has been scheduled to be held at this time. The caption of Ordinance No. 41-03 is as follows: AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AMENDING THE LAND DEVELOPMENT REGULATIONS OF THE CODE OF ORDINANCES, BY AMENDING SUBSECTION 2.4.6, "PROCEDURES FOR OBTAINING PERMITS AND APPROVALS", PARAGRAPH (H), "TEMPORARY USE PERMIT", TO ADD HORSE DRAWN CARRIAGE RIDES, ICE SKATING RINK, CAROUSEL AND OTHER RELATED HOLIDAY/SEASONAL TEMPORARY USES AUTHORIZED BY THE CITY COMMISSION; BY ADDING A NEW SUB- PARAGRAPH (D) TO PROVIDE THAT THESE USES BE SPONSORED BY THE CITY, COMMUNITY REDEVELOPMENT AGENCY, THE DOWNTOWN JOINT VENTURE, OR OTHER AGENCY FORMULATED FOR ECONOMIC DEVELOPMENT PURPOSES AND PROVIDING THAT THE OWNER OR OPERATOR OF CARRIAGE RIDES MUST HAVE A LICENSE AGREEMENT APPROVED BY THE CITY COMMISSION; RELETTERING THE REMAINING SUB-PARAGRAPH; PROVIDING A SAVING CLAUSE, A GENERAL REPEALER CLAUSE, AND AN EFFECTIVE DATE. (The official copy of Ordinance No. 41-03 is on file in the City Clerk's office.) -10- 11/04/03 The City Attorney read the caption of the ordinance. A public hearing was held having been legally advertised in compliance with the laws of the State of Florida and the Charter of the City of Delray Beach, Florida. Paul Dorling, Director of Planning and Zoning, stated this amendment will clarify the process of approval necessary to accommodate the new seasonal attractions introduced by the City last year as part of the Thanksgiving/Christmas season events. At its meeting of October 20, 2003, the Planning and Zoning Board held a public hearing regarding this item and unanimously approved. Mayor Perlman declared the public hearing open. There being no one who wished to address the Commission regarding Ordinance No. 41-03, the public hearing was closed. Mr. Costin moved to adopt Ordinance No. 41-03 on Second Reading/Second Public Hearing, seconded by Mrs. Archer. Upon roll call the Commission voted as follows: Ms. McCarthy - Yes; Mayor Perlman - Yes; Mr. Costin - Yes; Mrs. Archer - Yes; Mr. Levinson - Yes. Said motion passed with a 5 to 0 vote. 10.B. ORDINANCE NO. 21-03: An ordinance amending Chapter 99, "Noise Control" of the City Code of Ordinances to clarify distance requirements for noise emanating from vehicles and buildings; and to provide a time limit on outdoor playing of musical instruments, phonographs and similar devices in residential zoning districts. Prior to consideration of passage of this ordinance on Second and FINAL Reading, a public hearing been scheduled to be held at this time. The caption of Ordinance No. 21-03 is as follows: AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AMENDING CHAPTER 99, "NOISE CONTROL", OF THE CODE OF ORDINANCES OF THE CITY OF DELRAY BEACH, SECTION 99.04, "LOUD AND UNNECESSARY NOISES ENUMERATED; EXEMPTIONS", BY AMENDING SUBSECTION 99.04(A)(1), "NOISE FOR ENTERTAINMENT PURPOSES", TO CLARIFY CERTAIN DISTANCE REQUIREMENTS FOR NOISE EMANATING FROM VEHICLES AND BUILDINGS AND PROVIDING THAT THE OUTDOOR PLAYING OF MUSICAL OR SIMILAR INSTRUMENTS IS PROHIBITED DURING CERTAIN TIME PERIODS; BY REPEALING SUBSECTION 99.04(A)(19), "OUTDOOR PLAYING OF MUSICAL INSTRUMENTS, PHONOGRAPHS AND SIMILAR DEVICES"; PROVIDING A GENERAL REPEALER CLAUSE, A SAVING CLAUSE, AND AN EFFECTIVE DATE. -11- 11/04/03 (The official copy of Ordinance No. 21-03 is on file in the City Clerk's office.) The City Attorney read the caption of the ordinance. A public heating 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. Mayor Perlman declared the public heating open. There being no one who wished to address the Commission regarding Ordinance No. 21-03, the public heating was closed. Mrs. Archer moved to adopt Ordinance No. 21-03 on Second and FINAL Reading, seconded by Mr. Levinson. Upon roll call the Commission voted as follows: Mayor Peflman - Yes; Mr. Costin - Yes; Mrs. Archer - Yes; Mr. Levinson - Yes; Ms. McCarthy - Yes. Said motion passed with a 5 to 0 vote. IO.C. ORDINANCE NO. 42-03 (FIRST READING/FIRST PUBLIC HEARING): An ordinance amending Chapter 4, "Zoning Regulations", of the Land Development Regulations, Section 4.3.3(V) "Uses Involving Alcoholic Beverages" to provide for a definition of alcoholic beverage that is consistent with State Statutes and a distance limitation between Stand Alone Bars. If passed, a second public hearing will be scheduled for November 18, 2003. Prior to consideration of passage of this ordinance on First Reading, a public heating been scheduled to be held at this time. The caption of Ordinance No. 42-03 is as follows: AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AMENDING THE LAND DEVELOPMENT REGULATIONS OF THE CITY OF DELRAY BEACH, AMENDING APPENDIX "A", BY AMENDING ALL DEFINITIONS RELATING TO ALCOHOLIC BEVERAGES AND ENACTING SOME NEW DEFINITIONS RELATING TO ALCOHOLIC BEVERAGES; AMENDING CHAPTER FOUR, "ZONING REGULATIONS"; SECTION 4.3.3(V), "USES INVOLVING ALCOHOLIC BEVERAGES", IN ORDER TO PROVIDE FOR A DEFINITION OF ALCOHOLIC BEVERAGE THAT IS CONSISTENT WITH STATE STATUTES AND A DISTANCE LIMITATION BETWEEN STAND ALONE BARS; PROVIDING A SAVINGS CLAUSE, A GENERAL REPEALER CLAUSE, AND AN EFFECTIVE DATE. (The official copy of Ordinance No. 42-03 is on file in the City Clerk's office.) -12- 11/04/03 The City Attorney read the caption of the ordinance. A public heating 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. Paul Doffing, Director of Planning and Zoning, stated the proposed amendment is being processed in order to obtain consistency with State Statutes as they relate to the definition of Alcoholic Beverages, and to provide clarification regarding the distance limitation between stand alone bars and provide specific distances. At its meeting of October 20, 2003, the Planning and Zoning Board held a public heating regarding this item and there was one member of the public that had no objections to the amendment, but recommended some grammatical changes to the ordinance. After discussion, the Board voted 4-0 (Borchardt, Pike and Woehlkens absent) to recommend to the City Commission approval of the proposed amendment to LDR's Appendix "A" "Definitions" and Section 4.3.3(V) "Uses Involving Alcoholic Beverages", in order to provide a definition of alcoholic beverage that is consistent with State Statutes and a distance limitation between Stand Alone Bars, based upon positive findings with LDR Section 2.4.5(M). The proposed ordinance includes the grammatical changes. Mayor Perlman declared the public hearing open. There being no one who wished to address the Commission regarding Ordinance No. 42-03, the public hearing was closed. Prior to the vote, Ms. McCarthy inquired about the definition of a "block" as part of the distance between stand alone bars. Mrs. Archer moved to approve Ordinance No. 42-03 on First Reading/First Public Heating, seconded by Mr. Costin. Upon roll call the Commission voted as follows: Mr. Costin - Yes; Mrs. Archer - Yes; Mr. Levinson - Yes; Ms. McCarthy - No; Mayor Perlman - Yes. Said motion passed with a 4 to 1 vote, Ms. McCarthy dissenting. IO.D. ORDINANCE NO. 43-03 (FIRST READING/FIRST PUBLIC HEARING): An ordinance amending Chapter 4, "Zoning Regulations", of the Land Development Regulations, Section 4.3.3(AA) "Adult Entertainment Establishments" to amend the distance limitation between any adult entertainment establishment and alcoholic beverage establishment. If passed, a second public heating will be scheduled for November 18, 2003. Prior to consideration of passage of this ordinance on First Reading, a public heating been scheduled to be held at this time. The caption of Ordinance No. 43-03 is as follows: AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AIMENDING THE LAND DEVELOPMENT REGULATIONS OF THE CITY OF -13- 11/04/03 IO.E. DELRAY BEACH, AMENDING CHAPTER FOUR, "ZONING REGULATIONS"; SECTION 4.3.3(AA), "ADULT ENTERTAINMENT ESTABLISHMENTS", IN ORDER TO AMEND THE DISTANCE LIMITATION BETWEEN ALCOHOLIC BEVERAGE ESTABLISHMENTS AND ADULT ENTERTAINMENT ESTABLISHMENTS IN ORDER TO PROVIDE FOR A DISTANCE OF TWO HUNDRED (200) FEET BETWEEN ANY ALCOHOLIC BEVERAGE ESTABLISHMENT AND ANY ADULT ENTERTAINMENT ESTABLISHMENT; PROVIDING A SAVINGS CLAUSE, A GENERAL REPEALER CLAUSE, AND AN EFFECTIVE DATE. (The official copy of Ordinance No. 43-03 is on file in the City Clerk's office.) At the request of staff this item has been postponed. ORDINANCE NO. 44-03 (FIRST READING/FIRST PUBLIC HEARING): An ordinance amending Chapter 113, "Alcoholic Beverages", of the City Code of Ordinances, Section 113.20 "Prohibition of Nudity, Partial Nudity and Sexual Conduct at Alcoholic Beverage Establishments" to change distance limitations and include Stand Alone Bars. If passed, a second public heating will be scheduled for November 18, 2003. Prior to consideration of passage of this ordinance on First Reading, a public hearing been scheduled to be held at this time The caption of Ordinance No. 44-03 is as follows: AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AMENDING THE CODE OF ORDINANCES OF THE CITY OF DELRAY BEACH, AMENDING CHAPTER 113, "ALCOHOLIC BEVERAGES", SECTION 113.20, "PROHIBITION OF NUDITY, PARTIAL NUDITY, SEXUAL CONDUCT AT ALCOHOLIC BEVERAGE ESTABLISHMENTS", SUBSECTION (A) "DEFINITIONS", IN ORDER TO PROVIDE FOR THE INCLUSION OF STAND ALONE BARS IN THE DEFINITION OF ALCOHOLIC BEVERAGE ESTABLISHMENT; AMENDING SUBSECTIONS (C) AND (D) IN ORDER TO PROVIDE FOR A DISTANCE OF TWO HUNDRED (200) FEET BETWEEN ANY ALCOHOLIC BEVERAGE ESTABLISHMENT AND ANY ESTABLISHMENT PERMITTING NUDITY; PROVIDING A SAVINGS CLAUSE, A GENERAL REPEALER CLAUSE, AND AN EFFECTIVE DATE. (The official copy of Ordinance No. 44-03 is on file in the City Clerk's office.) -14- 11/04/03 At the request of staff this item has been postponed. At this point, the Commission moved back to Item 9.B. of the Regular Agenda. 9.B. CONDITIONAL USE REQUEST/EXCEL RESTAURANT: Consider a request for conditional use approval to allow the establishment of a 24-Hour or Late Night Business to be located within 300 feet of residentially-zoned property for Excel Restaurant, to be located within the Linton Square Shopping Center at the northeast comer of Linton Boulevard and Congress Avenue. (Quasi-Judicial Hearing) The City Clerk swore in those individuals who wished to give testimony on this Mayor Perlman asked the Commission to disclose any ex parte communications. Mrs. Archer stated she had a conversation with Jimmy Jacques about four months ago with regard to this request. Mr. Costin had no ex parte contacts to disclose. Mayor Perlman stated he has had brief conversations with Captain Musco, Captain Hartman, Officer Brady Myers, and an email with comments from Police Chief Larry Schroeder. Ms. McCarthy stated she saw an email from Police Chief Schroeder and spoke to Mr. Dorling. Mr. Levinson stated he received an email from Police Chief Larry Schroeder and also spoke to the City Manager about this item. Paul Dorling, Director of Planning and Zoning, entered the Planning and Zoning project file #2003-217 into the record. Mr. Dorling stated the Excel Restaurant is described as a restaurant/nightclub and has an area to accommodate a live band and dance floor. The hours of operation proposed are from 5:00 p.m. - 3:00 p.m. Since the business is located within 300 feet of residentially zoned property (Delray Estates and Delray Beach Highlands) and will be open after 12:00 midnight, a conditional use approval must be obtained. The conditional use request was originally scheduled to be heard by the City Commission at its meeting of September 9, 2003; however, the Delray Beach Police Department requested that the City Commission postpone the item so that they could conduct a review of the proposal. On September 25, 2003, City staff met with the applicant concerning the conditional use request for Excel Restaurant. The results of the meeting were that either' the applicant would submit a revised floor plan as it relates to the proposed conditional use request, or modify the conditional use request. The applicant submitted revised plans consistent with the requirements of their alcoholic beverage license. At its meeting of August 18, 2003, the Planning and Zoning Board considered the Conditional Use request and the Planning and Zoning Board had discussions on whether the security cameras would be recording and on future occupancy of the subject bays by another night club and whether they would need to return for conditional use approval. The Board had lengthy discussion regarding the hours of operation and recommended that the hours of operation be limited to 2:00 a.m. and then recommended approval of the conditional use subject to a -15- 11/04/03 security plan provided by the applicant; that the additional lighting is provided beneath the colonnade in compliance with the illumination standards of LDR Section 4.6.8; and, that at least one external security camera is installed in addition to the internal security cameras. The applicant's representative stated Delray Beach is in need of this type of restaurant not only for the Haitian population but to bring their culture to others. Mayor Perlman stated if anyone from the public would like to address the Commission regarding the Conditional Use request, to come forward at this time. Officer Robert Musco, Police Department, stated he is the District 2 Commander to which Excel Restaurant is presently located and commented that the Police Department has some concerns about some of the stipulations that have been made. One of the stipulations was the law enforcement handling the outside parking lot as part of an agreement. Mr. Musco stated the Delray Beach Police Department cannot guarantee that commitment. Captain Musco expressed concern over the hours of operation and the close proximity of the residential area. In addition, Captain Musco expressed concern over the permanent seating and that although this is a restaurant he feels the intention will be to turn it into a night club. At this point, the applicant's representative gave his rebuttal: He stated he understands the Police Officers have many other details to work and asked for a commitment on those nights they are available. On the evenings where the Delray Beach Police Department is not available he would provide third party security. He stated Delray Estates is less than 300 feet from the restaurant however 90% of the residents in Delray Estates are Haitian and are asking for the type of business the applicant is proposing. Excel Restaurant will be open seven days a week and commented there will not be a live band during the week but probably on Friday and Saturday evenings. With regard to the noise, he stated this was taken into consideration when the building was built and commented that the stage is in the back of the restaurant and the decibel level would not be high enough to disturb the surrounding community (Delray Estates). With regard to the seating, the Planning and Zoning Department was very helpful with their recommendations about what is needed and the applicant will comply with the requirements. Mr. Dorling stated the Commission can be very specific with respect to limiting the number of evenings for a live band to play and stated he would feel more comfortable if a limit was placed on it versus an open ended statement that it may happen two nights a week or maybe more. Mr. Dorling stated the noise issue is not necessarily inside the restaurant but what may occur outside in the parking lot. Mrs. Archer expressed concern that this restaurant is 300 feet from a residential area and that it is in a very large parking lot with a liquor store within close proximity. Mrs. Archer stated the proximity is too close and has the potential of creating some difficulties. -16- 11/04/03 Mr. Costin also expressed concern over the close proximity to the residential area and stated there is no buffer for the sound and noted it is located close to a retirement community, Abbey Delray South. Ms. McCarthy stated the hquor store in the shopping center closes at approximately 10:00 p.m. or 11:00 p.m. and is on the south side of the Winn Dixie, which stays open until 11:00 p.m. or 12:00 midnight. With regard to the noise inside versus the noise outside, Ms. McCarthy stated the noise from the inside is not as much of an issue as would be the activity in the parking lot which she feels is the responsibility of the owners. If the conditional use request is approved, Ms. McCarthy recommends it be closed prior to 3:00 a.m. Mr. Leviuson stated he supports the business; however, he expressed concern over the hours of operation. Mr. Levinson stated even though a large percentage of residents in Delray Estates are Haitian there have been other situations where there have been night clubs and the neighbors were also of the same ethnic background and have not been happy. Mr. Leviuson stated this use hms with the land and not the business. Therefore, Mr. Levinson stated he is concerned that by having a late night facility and if it is not successful and someone else comes into the shopping center this could potentially cause some big problems because of it running with the land and not the particular operator of the facility. Mayor Perlman stated he has some issues with the business and the hours of operation. Mayor Perlman stated a restaurant in the Haitian community would be welcomed but he feels this is a club. Mayor Perlman stated a night club 300 feet from a residential area could be problematic. Mayor Perlman continued to state he agrees with Police Chief Schroeder's concerns about using other security resources when we do not have the resources to handle the security. Mayor Perlman asked Captain Musco if there is any history of issues. Captain Musco stated Excel Restaurant was in violation of their liquor license approximately three months ago for not serving food as required. Captain Musco stated it was basically operating as a night club and not a restaurant at that time. Ms. McCarthy asked what promoted this violation to happen. Belony Excellent, owner of Excel Restaurant, stated with regard to Captain Musco's comments about Excel Restaurant receiving a warning for not serving food, Mr. Excellent explained some of the food is stored in a cooler and not all the food is actually out. Mr. Excellent stated he understands the rules and explained he also received a violation warning for having a smoking area and now he no longer has this smoking area. Captain Muaco reiterated that according to Excel's 4COP license when they are opened and they must be serving food at all times. Accordingly food must represent 600/0 of the Restaurant's receipts with 40% coming from serving alcohol. A business with seating of 300 and opened until 2:00 a.m. requires an opened kitchen and Excel has already been in violation of this requirement. -17- 11/04/03 Mrs. Archer moved to approve the Conditional Use request for Excel Restaurant based upon the findings and recommendations of the Planning and Zoning Board subject to the conditions as listed in the Planning and Zoning Staff Report, seconded by Mr. Costin. Upon roll call the Commission voted as follows: Mrs. Archer - No; Mr. Levinson - No; Ms. McCarthy - No; Mayor Perlman - No; Mr. Costin - No. Said motion was DENIED with a 5 to 0 vote. 9.C. REQUEST TO REDUCE LIENS/COMMUNITY REDEVELOPMENT AGENCY: Consider a request from the Community Redevelopment Agency (CRA) to waive liens including thc interest and administrative fees in thc amount of $8,435.23 assessed for abating nuisances on property located on S.W. 7th Avenue. This item has been withdrawn by the CRA. At this point, the Commission moved to Item 11, Comments and Inquiries on Non-Agenda Items from the City Manager and the Public. ll.A. City Manager's response to prior public comments and inquiries. In response to prior concems expressed by Charlotte Wright regarding nuisance abatement at 809 N.W. 2"a Street the owner was cited on October 8, 2003 and the work should be completed this week. The City Manager stated the property located at 207-209 N.W. 9th Avenue was also cited for liter and debris and a notice was mailed on November 3, 2003. With regard to a concern expressed over the drainage in the area, the City Manager stated major drainage improvements were constructed on N.W. 2nd Street in 1992 which included a primary drainage trunk line and outfall between N.W. 3rd Avenue and N.W. 14th Avenue eventually discharging to the Lake Worth Drainage District (LWDD) E-4 Canal. Drainage connections have been made to the outfall since then at various points in conjunction with additional roadway and drainage improvements. The City Manager stated the outfall line was designed to accommodate the additional flow from these connections as well as others that may be constructed in the future. There have been no reports of chronic flooding at the N.W. 2nd Street, 8th Avenue location. However, the City Manager stated staff will monitor the area to determine if problems exist that warrant additional attention. In response to a prior concem expressed by Mrs. Finst about the traffic exiting the gas station at Barwick Road and Atlantic Avenue, the City Manager stated staff has received complaints in the past about turning movements at the driveway turnout to Barwick Road primarily due to northbound traffic either wanting to turn west across southbound traffic to enter the gas station or to turn north out of the driveway to go north on Barwick Road. The City Manager stated since Barwick Road is a Palm Beach County road, the traffic issues must be addressed with the County. The City Manager stated earlier this year a letter was sent to the County requesting assistance with this problc~n and to date staff has received no response. The City Manager stated City staff will continue to follow up with County staff. Mr. Levinson stated he spoke to County staff in the beginning of the year and they were not interested in making any changes at this location. -18- 11/04/03 ll.B. From the Public. ll.B.1. Glen Weiss, 2070 Homewood Boulevard, Delray Beach, encouraged the Commission to travel to Houston, Texas to see the works of lead artist Rick Lowc. Mr. Weiss stated this is an amazing circumstance of Mr. Lowe's ability to provide affordable housing in a neighborhood which continues to build in terms of renovating thc buildings and the neighborhood. Mr. Weiss stated it is interesting to see how the arts affect a single family residential neighborhood. 11.B.2. Allen D. Mentser, 1400 Allendale Road, Ste. #1, West Palm Beach, (President of the Affordable Home Company Buyers Investment Group, LTD.), commented about Item 9.C. being removed from the agenda and stated he concurs with the City Manager's memo recommending denial of the purchase. Mr. Mentser stated hc has applied to staff in four separate letters of request dating back to May for lien abatements modifications/reductions on several parcels of vacant lots they have acquired in the City of Delray Beach; and stated to date they have not received a response or a procedure on how to approach the Commission. Mr. Mentser stated he sent Jim Drosakis, Director of Real Estate, to the City Manager's office yesterday to request a meeting and is waiting to hear back from staff. Mr. Mentser expressed disappointed that he has not yet received any response from staff. 11.B.3. Jim Smith, 1225 S. Ocean Boulevard, Delray Beach, reviewed and read into the record the five pedestrian/bike steps (a copy is attached herewith and made an official part of the minutes). ll.B.4. John Bennett, 137 Seabreeze Avenue, Delray Beach, distributed a flyer announcing thc American Legion Milton Myers, Post 65 and Post 188 will conduct a memorial service in honor of our veterans of all wars on Tuesday, November 11, 2003 at 9:30 a.m. at the Delray Beach Municipal Cemetery. A spaghetti dinner will be hosted by the members of the American Legion Post 65 at their Post Home located at 263 N.E. 5th Avenue, Delray Beach. In addition, Mr. Bennett announced VFW Post 4141 is having their commemoration at 11:00 a.m. at Veteran's Park. ll.B.5. Anna Richman, a resident of Delray Beach, stated she supports comments expressed by Mr. Smith and urged the Commission to give full consideration in recommendations along A-1-A to bikers and pedestrians that will enhance the village-like atmosphere of Delray Beach. At this point, the Commission moved to Item 9.D. of the Regular Agenda. 9.D. SPECIAL EVENT REQUEST/CULTURAL LOOP: Consider approval for the establishment of the Cultural Loop, the Loop kick off day, and activities proposed for November 22, 2003 including waiver of LDR Section 4.6.7(L) to allow artwork to be hung on light poles, grant a temporary usc permit per LDR Section 2.4.6(H) to allow the placement of art work in the City's right-of-way for up to six (6) months, and the use of the drainage retention area at S.W. 4th Avenue and S.W. 1tt Street for the event day, and authorize amendment to our banner hanging agreement with FPL for hanging artwork on their light poles. Staff assistance is -19- 11/04/03 also requested for transport of art work, post hole digging, and hanging artwork. Robert A. Barcinski, Assistant City Manager, stated this item is before the Commission for consideration for approval the establishment of the Cultural Loop and to endorse the planned kick off day and activities proposed for November 22, 2003. The request also includes to waive LDR Section 4.6.7(L) to allow artwork to be hung on light poles, grant a temporary use permit per LDR Section 2.4.6(H) to allow the placement of art work in the City's rights-of-way for up to six (6) months, and the use of the drainage retention area at S.W. 4th Avenue and S.W. 1st Street for the event day, and to authorize amendment of our banner hanging agreement with FPL for hanging artwork on their light poles. Mr. Barcinski stated staff also recommends approval of the seven conditions listed in the agenda backup and noted a correction to #6 and stated it should read "48 signs versus 70" and not "36". Mrs. Archer moved to approve the special event request for the establishment of the Cultural Loop, subject to staff recommendations with the correction to #6 fi.om 36 signs to 48 signs, seconded by Ms. McCarthy. Upon roll call the Commission voted as follows: Mr. Levinson - Yes; Ms. McCarthy - Yes; Mayor Perlman - Yes; Mr. Costin - Yes; Mrs. Archer - Yes. Said motion passed with a 5 to 0 vote. 9oE, SETTLEMENT OF DEPARTMENT OF ENVIRONMENTAL PROTECTION (DEP) RULE CHALLENGE: Consider dropping the Department of Environmental Protection (DEP) role challenge regarding Rate Making by Water Management Districts and accept the settlement language. The City Attorney stated the Commission authorized staff to participate in a rule challenge as it pertains to water conservation rates. The City Attorney expressed concern over some language and would like to clarify that the water management districts do not have the ability to set rates and rate structures. The City Attorney stated staff is requesting that the Commission approve the settlement based on the proposed language with the ability to accept some modifications should they arise. Richard Hasko, Director of Environmental Services, stated there were several other municipalities and organizations that have also been challenging the DEP rule challenge; however stated many of the challengers have other issues with different portions of the proposed rule change and reiterated there are still some things that may change in the language because of the other challengers. Mr. Levinson moved to approve to authorize staff to settle the Environmental Protection (DEP) Rule Challenge subject to the proposed language, seconded by Ms. McCarthy. Upon roll call the Commission voted as follows: Ms. McCarthy - Yes; Mayor Perlman - Yes; Mr. Costin - Yes; Mrs. Archer -Yes; Mr. Levinson - Yes. Said motion passed with a 5 to 0 vote. -20- 11/04/03 9.F. PROPOSAL FOR SETTLEMENT/IDA AND LOUIS BARTOLOTTA v. CITY OF DELRAY BEACH: Consider acceptance of proposal for settlement subject to the receipt of appropriate releases in the Ida and Louis Bartolotta v. City of Delray Beach case. Staff recommends acceptance. The City Attorney stated staff recommends acceptance of the settlement offer. Mr. Costin moved to approve the proposal for settlement subject to the receipt of appropriate releases in the Ida and Louis Bartolotta v. City of Delray Beach, seconded by Mr. Levinson. Upon roll call the Commission voted as follows: Mayor Perlman - Yes; Mr. Costin - Yes; Mrs. Archer - Yes; Mr. Levinson - Yes; Ms. McCarthy - Yes. Said motion passed with a 5 to 0 vote. 9.Go APPOINTMENT TO THE DELRAY BEACH HOUSING AUTHORITY: Appoint one (1) regular member to the Delray Beach Housing Authority for a four (4) year term ending October 27, 2007. Based on the rotation system, the appointment will be made by Commissioner Costin (Seat #1). Mr. Costin moved to appoint Gary Rosen (incumbent) as a regular member to the Delray Beach Housing Authority for a four (4) year term ending October 27, 2007, seconded by Mrs. Archer. Upon roll call the Commission voted as follows: Mr. Costin - Yes; Mrs. Archer - Yes; Mr. Levinson - Yes; Ms. McCarthy - Yes; Mayor Perlman - Yes. Said motion passed with a 5 to 0 vote. 9oHo APPOINTMENT TO THE HISTORIC PRESERVATION BOARD: Appoint one (1) member to the Historic Preservation Board for an unexpired term ending August 31, 2005. Based upon the rotation system, the appointment will be made by Mayor Perlman (Seat #5). Mayor Perlman stated he wished to appoint Jeffrey Silberstein to the Historic Preservation Board for an unexpired term ending August 31, 2005. Mr. Costin so moved, seconded by Ms. McCarthy. Upon roll call the Commission voted as follows: Mrs. Archer - No; Mr. Levinson - Yes; Ms. McCarthy - Yes; Mayor Perlman - Yes; Mr. Costin - Yes. Said motion passed with a 4 to 1 vote, Mrs. Archer dissenting. APPOINTMENTS TO THE NEIGHBORHOOD ADVISORY COUNCIL: Appoint (15) members and two (2) student members to the Neighborhood Advisory Council for specified expiration dates as listed in the backup material for this agenda item. The appointments will be made based on the rotation system with each Commissioner appointing three (3) members, beginning with Commissioner Costin. The two student members will be appointed by Commissioners Costin and Archer. Mr. Costin moved to appoint Sandra Keener (Zone 1) as a member to the Neighborhood Advisory Council for a term ending October 31, 2004, seconded by Mrs. Archer. Upon roll call the Commission voted as follows: Mr. Levinson - Yes; Ms. McCarthy - Yes; Mayor Perlman - Yes; Mr. Costin - Yes; Mrs. Archer - Yes. Said motion passes with a 5 to 0 -21- 11/04/03 vote. Mrs. Archer moved to appoint Robert Gillespie (Zone 2) as a member to the Neighborhood Advisory Council for a term ending October 31, 2004, seconded by Ms. McCarthy. Upon roll call the Commission voted as follows: Ms. McCarthy - Yes; Mayor Perlman - Yes; Mr. Costin - Yes; Mrs. Archer - Yes; Mr. Levinson - Yes. Said motion passed with a 5 to 0 vote. Mr. Levinson moved to appoint Karen Lustgarten (Zone 3) as a member to the Neighborhood Advisory Council for a term ending October 31, 2004, seconded by Ms. McCarthy. Upon roll call the Commission voted as follows: Mayor Perlman - Yes; Mr. Costin - Yes; Mrs. Archer - Yes; Mr. Levinson - Yes; Ms. McCarthy - Yes. Said motion passed with a 5 to 0 vote. Ms. McCarthy moved to appoint Cory (Caroline) Cassidy (Zone 4) as a member to the Neighborhood Advisory Council for a term ending October 31, 2004, seconded by Mr. Levinson. Upon roll call the Commission voted as follows: Mr. Costin - Yes; Mrs. Archer - Yes; Mr. Levinson - Yes; Ms. McCarthy - Yes; Mayor Perlman - Yes. Said motion passed with a 5 to 0 vote. Mayor Perlman passed the gavel to Vice Mayor Levinson. Mr. Perlman moved to appoint Evelyn Dobson (Zone 5) as a member to the Neighborhood Advisory Council for a term ending October 31, 2005, seconded by Ms. McCarthy. Upon roll call the Commission voted as follows: Mrs. Archer - Yes; Vice Mayor Levinson - Yes; Ms. McCarthy - Yes; Mr. Perlman - Yes; Mr. Costin - Yes. Said motion passed with a 5 to 0 vote. Mr. Costin moved to appoint Fred Fetzer (Zone 6) as a member to the Neighborhood Advisory Council for a term ending October 31, 2005, seconded by Ms. McCarthy. Upon roll call the Commission voted as follows: Mr. Levinson - Yes; Ms. McCarthy - Yes; Mayor Perlman - Yes; Mr. Costin - Yes; Mrs. Archer - Yes. Said motion passed with a 5 to 0 vote. Mrs. Archer moved to appoint George Braverman (Zone 1) as a member to the Neighborhood Advisory Council for a term ending October 31, 2005, seconded by Ms. McCarthy. Upon roll call the Commission voted as follows: Ms. McCarthy - Yes; Mayor Perlman - Yes; Mr. Costin Yes; Mrs. Archer - Yes; Mr. Levinson - Yes. Said motion passed with a 5 to 0 vote. Mr. Levinson moved to appoint Sheldon Weil (Zone 2) as a member to the Neighborhood Advisory Council for a term ending October 31, 2005, seconded by Ms. McCarthy. Upon roll call the Conunission voted as follows: Mayor Perlman - Yes; Mr. Costin - Yes; Mrs. Archer - Yes; Mr. Levinson - Yes; Ms. McCarthy - Yes. Said motion passed with a 5 to 0 vote. Ms. McCarthy moved to appoint Susan Kay (Zone 3) as a member to the Neighborhood Advisory Council for a term ending October 31, 2006, seconded by Mrs. Archer. -22- 11/04/03 Upon roll call the Commission voted as follows: Mr. Costin - Yes; Mrs. Archer - Yes; Mr. Levinson - Yes; Ms. McCarthy - Yes; Mayor Perlman - Yes. Said motion passed with a 5 to 0 vote. Mayor Perlman passed the gavel to Vice Mayor Levinson. Mr. Perlman moved to appoint Mike Cruz (Zone 4) as a member to the Neighborhood Advisory Council for a term ending October 31, 2006, seconded by Mr. Costin. Upon roll call the Commission voted as follows: Mrs. Archer - Yes; Vice Mayor Levinson - Yes; Ms. McCarthy - Yes; Mr. Perlman - Yes; Mr. Costin - Yes. Said motion passed with a 5 to 0 vote. Mr. Costin moved to appoint Gail Lee McDermott (Zone 5) as a member to the Neighborhood Advisory Council for a term ending October 31, 2006, seconded by Ms. McCarthy. Upon roll call the Commission voted as follows: Mr. Levinson - Yes; Ms. McCarthy - Yes; Mayor Perlman - Yes; Mr. Costin - Yes; Mrs. Archer - Yes. Said motion passed with a 5 to 0 vote. Mrs. Archer moved to appoint Harvey Starin (Zone 6) as a member to the Neighborhood Advisory Council for a term ending October 31, 2006, seconded by Ms. McCarthy. Upon roll call the Commission voted as follows: Ms. McCarthy - Yes; Mayor Perlman - Yes; Mr. Costin - Yes; Mrs. Archer - Yes; Mr. Levinson - Yes. Said motion passed with a 5 to 0 vote. Mr. Levinson moved to appoint Rita Ellis (Citizen-at-Large) as a member to the Neighborhood Advisory Council for a term ending October 31, 2004, seconded by Mrs. Archer. Upon roll call the Commission voted as follows: Mayor Perlman - Yes; Mr. Costin - Yes; Mrs. Archer - Yes; Mr. Levinson - Yes; Ms. McCarthy - Yes. Said motion passed with a 5 to 0 vote. Ms. McCarthy moved to appoint Roy Fraker (Citizen-at-Large) as a member to the Neighborhood Advisory Council for a term ending October 31, 2005, seconded by Mrs. Archer. Upon roll call the Commission voted as follows: Mr. Costin - Yes; Mrs. Archer - Yes; Mr. Levinson - Yes; Ms. McCarthy - Yes; Mayor Perlman - Yes. Said motion passed with a 5 to 0 vote. Mayor Perlman passed the gavel to Vice Mayor Levinson. Mr. Perlman moved to appoint Charles Stravino (Citizen-at-Large) as a member to the Neighborhood Advisory Council for a term ending October 31, 2006, seconded by Mrs. Archer. Upon roll call the Commission voted as follows: Mrs. Archer - Yes; Vice Mayor Levinson - Yes; Ms. McCarthy - Yes; Mr. Perlman - Yes; Mr. Costin - Yes. Said motion passed with a 5 to 0 vote. Mr. Costin moved to appoint Allison Mattocks as a student member to the Neighborhood Advisory Council for a term ending October 31, 2004, seconded by Ms. McCarthy. Upon roll call the Commission voted as follows: Mrs. Archer - Yes; Mr. Levinson - Yes; Ms. McCarthy - Yes; Mayor Perlman - Yes; Mr. Costin - Yes. Said motion passed with a 5 to 0 vote. -23- 11/04/03 Mrs. Archer moved to appoint Aaron Ussery as a student member to the Neighborhood Advisory Council for a term ending October 31, 2004, seconded by Ms. McCarthy. Upon roll call the Commission voted as follows: Mr. Levinson - Yes; Ms. McCarthy - Yes; Mayor Perlman Yes; Mr. Costin - Yes; Mrs. Archer - Yes. Said motion passed with a 5 to 0 vote. 9.J. DIRECTION REGARDING THE RECREATION CENTERS~ PARKS AND CULTURAL FACILITIES BOND ISSUE: Commission approval of support members of the community to promote the bond issue and direction regarding the translation of the ballot into Creole. Mr. Levinson stated he would like to grant the authority to the Mayor to add a name(s) to the list so that if someone either writes in or calls, he can approve them to be support members of the Steering Committee to help support and promote the bond issue. For cost effectiveness, Mayor Perlman stated the Community Improvement Department may already have the neighborhood association presidents in an email database where the Commission can invite them to a meeting and have a presentation rather than mailing a letter. Ms. McCarthy stated Mayor Perlman's suggestion is a great idea and commented since this is city-wide she would like to ensure the word gets out to all boundaries of the City. After brief discussion, it was the consensus of the City Commission to give direction to the City Manager to proceed with the list of neighborhood presidents and names as suggested and work with the Community Improvement Department to set up a meeting with the Steering Committee before the end of the month. In addition, the City Commission gave direction to the City Clerk to proceed to translate the ballot into Creole. At this point, the Commission moved to Item 12, First Readings. FIRST READINGS: 12.A. ORDINANCE NO. 45-03: An ordinance rezoning from AC (Automotive Commercial) to GC (General Commercial) for a 0.73 acre parcel of land located at the southwest comer of S.E. 6th Avenue (northbound Federal Highway) and S.E. 9th Street (550 S.E. 9th Street). If passed, a quasi-judicial public hearing will be scheduled for November 18, 2003. Prior to consideration of passage of this ordinance on First Reading, a public heating been scheduled to be held at this time. The caption of Ordinance No. 45-03 is as follows AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, REZONING AND PLACING LAND PRESENTLY ZONED AC (AUTOMOTIVE -24- 11/04/03 COMMERCIAL) DISTRICT TO GC (GENERAL COMMERCIAL) DISTRICT; SAID LAND BEING A PARCEL OF LAND LOCATED AT THE SOUTHWEST CORNER OF SE 6th AVENUE (NORTHBOUND FEDERAL HIGHWAY) AND SE 9th STREET, AS MORE PARTICULARLY DESCRIBED HEREIN; AMENDING "ZONING MAP OF DELRAY BEACH, FLORIDA, APRIL 2003"; PROVIDING A GENERAL REPEALER CLAUSE, A SAVING CLAUSE, AND AN EFFECTIVE DATE. (The official copy of Ordinance No. 45-03 is on file in the City Clerk's office.) The City Attorney read the caption of the ordinance. Paul Dorling, Director of Planning and Zoning, stated the subject property is Lot 2B of a Replat of Lot 2 located at the southwest comer of S.E. 6th Avenue (Northbound Federal Highway) and S.E. 9th Street (550 S.E. 9th Street), which is zoned AC and is 0.73 acres. The proposal is to rezone the subject property from AC (Automotive Commercial) to GC (General Commercial) to accommodate a furniture store. At its meeting of October 20, 2003, the Planning and Zoning Board held a public hearing in conjunction with the request and after reviewing the staff report and discussing the proposal, the Board voted 4-0 (Borchardt, Pike and Woehlkens absent) to recommend approval of the rezoning request from AC to GC, based on positive findings with respect to LDR Section 3.1.1 (Required Findings), LDR Section 3.2.2 (Standards for Rezoning Actions), and LDR Section 2.4.5(D)(5) (Rezoning Findings), and the Goals, Objectives and Policies of the Comprehensive Plan. Mr. Costin moved to approve Ordinance No. 45-03 on FIRST Reading, seconded by Mrs. Archer. Upon roll call the Commission voted as follows: Ms. McCarthy - Yes; Mayor Perlman - Yes; Mr. Costin - Yes; Mrs. Archer - Yes; Mr. Levinson - Yes. Said motion passed with a 5 to 0 vote. At this point, the Commission moved to Item 13, Comments and Inquiries on Non-Agenda Items. COMMENTS AND INQUIRIES ON NON-AGENDA ITEMS. 13.A. CRv Manauer. The City Manager stated the County Commission had their Workshop meeting regarding Fire level of service standards. The County Commission noted that a study will be conducted of the proposed level of service standards to look at common dispatch and closest unit response and will report back on the cost information by January 27, 2004. The City Manager stated this is a group consisting of two City Managers, two Fire Chiefs, a Labor Representative, a member from the Palm Beach County Fire Service Committee, and one member from the -25- 11/04/03 County Fire Department. The City Manager stated he had a brief discussion with the City Manager in Boca today about the possibility of working together to do a parallel study. The City Manager stated he expects the County will select Th-Data as a consultant which has previously been the consultant for the County's Fire Union as well as the County. 13.B. City Attorney. The City Attorney had no comments or inquires on non-agenda items. 13.C. 13.C.1. City Commission. Commissioner McCarthy Ms. McCarthy stated she had a great time riding on the fire tracks on Halloween night and commented about a child who was dressed up as a fire fighter. In addition, Ms. McCarthy commented about an emergency call she went on where a man drove a car off Lake Ida Road into the vacant lot on the comer of Lake Ida Road and N.W. 5th Avenue. Ms. McCarthy stated the area was dark because only one street light was working and approximately 3-4 lights were out. Ms. McCarthy stated she spoke with FPL and they informed her that this issue will be addressed. With regard to Veteran's Day ceremonies, Ms. McCarthy asked Mr. Bennett to email a flyer to her so she can inform some other people who would be interested in attending those particular fimctions. 13.C.2. Commissioner Costin Mr. Costin commended the City Manager on his fiscal management and stated it looks like the City will need those reserves. Mr. Costin stated he too had an enjoyable time riding on the fire trucks distributing candy on Halloween night. 13.C.3. Commissioner Archer Mrs. Archer stated she enjoyed Halloween night and also went on two calls both of which were false alarms. Mrs. Archer stated she was in the Andover subdivision distributing candy and there were so many children the candy ran out. Mrs. Archer stated resources were sent out to get more candy in order to move to the next subdivision. Mrs. Archer commented she is looking forward to having Bill Wood come to be "Principal for the Day" at Seacrest Christian School next Wednesday. Mrs. Archer stated she will be out of town on November 22, 2003 and will therefore miss the Cultural Loop opening and the Sandoway House Gala. In addition, Mrs. -26- 11/04/03 Archer had the opportunity to attend the Ted Center Gala last Saturday evening and commented it was well attended. Mrs. Archer stated she has received several complaints about the barricades at Homewood Boulevard and Linton Boulevard. Mrs. Archer stated it appears the flashing lights on the barricades are out most of the time and as a result there have been several accidents. Mrs. Archer stated if the City could do something to get the barricade lights on it would be very helpful. 13.C.4. Commissioner Levinson Mr. Levinson stated he too had a great time Halloween and he went to Pine Grove Elementary School. Mr. Levinson commented about Linda Cartlidge, the new Principal at Pine Grove Elementary who was dressed as Glenda the good witch from the East. Mr. Levinson stated it was a great turnout and commended the Police Department for a job well done. Mr. Levinson noted after the stop at Pine Grove, they went to Carver Estates where Officer Michael Coleman was dressed up as McGruff. Mr. Levinson stated there was a tremendous amotmt of Police Officers who were there on their own time and provided resoumes of their own in order to provide for the children. Mr. Levinson commended Officer Jeff Messer, Javaro Sims, and several others for their efforts. Secondly, Mr. Levinson commented about the update provided by Nancy Davila, City Horticulturist and stated it is terrific. Mr. Levinson commended the City Manager and Department Heads for controlling the City's expenses and stated the surplus is great. Mr. Levinson stated Kids Fest was great and commented that Delray Beach was really alive. Mr. Levinson stated approximately nine neighborhood association presidents have informed him that they are glad that there is now a forum for them to be able to communicate in an official way with the City. 13.C.5. Mayor Perlman Mayor Perlman annotmced for those people who do not receive The Palm Beach Post, Officer Johnny Pun was named honorable mention in Parade Magazine (a national publication). Mayor Perlman stated this is the second consecutive year that a Delray Beach Police Officer has been recognized nationally by Parade Magazine. Mayor Perlman commented about the SCAN Tour whereas people fi.om Colorado, Tennessee, Utah, Connecticut, Tallahassee, and other places came to Delray Beach to study the downtown and transportation system. -27- 11/04/03 Mayor Perlman stated on October 1, 2003, he and the City Manager had the opportunity to take a tour of District 7 with Palm Beach County Commissioner Addie Greene. Mayor Perlman stated they saw a lot of different projects around the County and he feels many people were impressed by what they saw in Delray. Mayor Perlman stated the relationship is really good because all the County Commissioners attended. Mrs. Greene's district includes the City of Delray Beach and she will hopefully continue working with the City as she attempts to improve her district. Mayor Perlman commended Paul Dorling, Director of Planning and Zoning, and the CRA for their work on the US-1 redevelopment meeting at the Golf Course. Mayor Peflman stated the discussion and the information was good and well attended. He suggested this type of forum he used in the future for other elements of the Downtown Master Plan. Mayor Perlman suggested that a proclamation be presented to Rhiannon Jeffi'ey, a student at Atlantic High School, who is setting national and world records in swimming. Mayor Perlman stated Halloween was great and commended Fire Chief Kerry Koen for the initial idea after the 9/11 disaster. Mayor Perlman stated the initial idea was an attempt to provide support and comfort throughout the neighborhoods in the community after such a national tragedy. Mayor Perlman stated he noticed there was a lot of appreciation for the effort and many people thanked the firefighters. Mayor Perlman thanked and commended Nancy King, Staff Assistant/Publication Editor for her work on the Board and Committee Appreciation Reception. He stated there were over 100 people in attendance and about thirty people joined him for dinner afterwards. Mayor Perlman stated Boynton Beach had a Commission and Mayoral Election and commented Mayor Broening and Commissioner Weiland worked well with the City of Delray Beach on municipal issues and the South Central Regional Wastewater Treatment and Disposal Board (SCRWTDB). Mayor Perlman suggested that the Commission either send a card or call Mayor Broening and Commissioner Weiland because he feels it would be greatly appreciated. Mayor Perlman announced he will be in California on Friday, November 7, 2003, and will not attend the Workshop Meeting on November 11, 2003 or the Veteran's Day festivities. There being no further business, Mayor Perlman declared the meeting adjourned at 8:50 p.m. City Clerk -28- 11/04/03 ATTEST: MAYOR The undersigned is the City Clerk of the City of Delray Beach, Florida, and the information provided herein is the Minutes of the Regular City Commission Meeting held on November 4, 2003, which Minutes were formally approved and adopted by the City Commission on City Clerk NOTE TO READER: If the Minutes you have received are not completed as indicated above, this means they are not the official Minutes of the City Commission. They will become the official Minutes only after review and approval which may involve some amendments, additions or deletions as set forth above. -29- 11/04/03 Five Ped/Bike Steps Remarks by Jim Smith Delray Beach City Commission Meeting of November 4, 2003 The State of Florida has long recognized the safety needs of AIA pedestrians and cyclists. In fact, improving Ped/Bike safety is one of the goals of the road-widening project. The MPO of Palm Beach County includes Ocean Blvd. in its Long Range Bike/Ped Facilities Plans; and just four months ago, the Delray Beach Task Team identified Ocean Blvd. as a key north/south route in its own recommended Ped/Bike Master Plans. Now, this Commission must make its own recommendation to FDOT. I don't envy you. As politicians, you must each balance the needs and wishes of all your constituents. I don't have to tell you, that you can't please everyone. But, before you make your final recommendations, let's review five of the most important sub-decisions facing you. Number 1: Bicycle lanes - simply support FDOT'S current plan. FDOT design engineers know best how to build travel lanes, and they know best how to build safe bicycle lanes. Number 2: ask FDOT to build a sidewalk on the east side of Ocean Blvd. southward from Bush Blvd. approximately 600 feet to connect with the existing sidewalk. Filling in this sidewalk gap will mean that pedestrians will be able to cross at the traffic light rather than a less safe mid-block location. As an added benefit, it will not only result in 150 to 500 safer ped crossings every day; but, it will mean less traffic delays for already frustrated drivers since ped crossing will occur at a signalized traffic light and not result in yet another stop for motorists 600 feet down the road. Simply ask FDOT to include what was in their original plan. There is adequate existing ROW. Number 3: Ask FDOT to realign Ocean Blvd. far enough to the east, between the northern end of the beach and Beach Drive to provide the necessary ROW on the west side, to complete the last remaining sidewalk gap between Bush Blvd. and the Sandoway House. Now, there is only enough room for either a bike lane or a sidewalk. If FDOT is unable or unwilling to realign the road, then a longer-term solution of acquiring new ROW will be required. If this is the case, let's get a commitment from FDOT to complete it at a later date. Number 4: Ask FDOT to realign Ocean Blvd. far enough to the east between Casnarina and Ingraham to provide the necessary ROW for both a bicycle lane and a sidewalk on the west side of the road. Now, there is only enough room for one or the other. Again, if FDOT is either unable or unwilling to realign the road, then a louger-term solution of acquiring new ROW will be required. Again let's get a commitment from FDOT. Number 5: Ask FDOT to build a new sidewalk on the east side of Ocean Blvd. from Casuarina to Linton. Simply ask FDOT to include what was in their original plan; again, there is more than enough ROW. There are three advantages of completing this sidewalk gap. Pedestrians like Charlyne and I who live east of Ocean Blvd., will not have to dart across the road four times every day. I'm not exaggerating...in the winter there is never a break in the traffic! Charlync and I often comment to one another that "we're risking our lives for health reasons". The second advantage is that pedestrians coming up from south of Linton will be able to cross a safer Ocean Blvd. rather than a six lane, always moving, Linton Blvd. The third advantage is that building a sidewalk on the east side will afford pedestrians almost complete shade each morning. Thank you for listeuiug. PS. Sources of funding for ROW acquisition: 1. MPO- Commissioner Archer is a loug-term and effective member who has been able to obtain funding in the past. My understanding is that the MPO has some available funding for acquiring ROW to fiH in sidewalk gaps along state roads. 2. FDOT: Statute 335.066 (enacted last year) designates DOT as the agency responsible for safe paths to parks. 3. City of Delray Beach: begin providing for I block/yr of ROW acquisition in successive capital budgets. WHlgREAS, on October 4, 1982, a small community hospital opened in a fon'ner rice field located in rural west Delray Beach. The hospital was then called Dekay Community Hospital, built to serve the needs of a small, but growing community; and WHEREAS, twenty-one years later, Delray Medical Center has 372 beds and plans to add more, is nationally recognized for award-winning care; and WHEREAS, Delray Medical Center is a five-star rated cardiac program with three cardiac catheterization labs performing more than 500 open-hem procedures and more than 4,000 cardiac catheterization and balloon angioplasfies annuully; and WHERF_.~S, as a state-designated Level II Trauma Center, the hospital serves as one of only two trauma centers in Palm Beach County and provides trauma care for adults and children in South Palm Beach County; and '~ff-IERF_akS, Delray Medical Center has an extensive community education program. These services include lectures on prevention and wellness and multiple free health screexfingr and support groups for the residents of Palm Beach county; and WHEREAS, for the past three years in succession, Delray Medical center ranked among the top 5% nationwide for cardiac services by HealthGrades, a leading healthcare ratings fttm; in the top 50 hospitals nationwide for heart and heart surgery by U.S. News & World Report (2003), and ranked among the best hospitals for cardiac surgery by Money Magazine (2003) and for the second year in succession, Delray Medical Center ranked among the Top 100 Hospitals in the nation by Soludent. NOW, THIgREFORI~, I, JEFF PERLMAN, Mayor of the City of Delray Beach, Florida, on behalf of the City commlssinn, do hereby recognize and commend DELRAY MEDICAL CENTER for their many outstanding achievements, awards and their commitment to providing a full range of superior health care services to our commurdty. IN WITNESS WHEREOF, I have hereunto set my hand and caused the Official Seal of the City of Delray Beach, Florida, to be affixed this 18TM day of November, 2003. JEFF PERLIVIAN MAYOR Garito, Barbara From: Sent: To: Subject: Harden, David Tuesday, October 28, 2003 9:15 AM Garito, Barbara FW: Proclamation Please prepare a proclamation. ..... Original Message From: Jon Levinson [mailto:jonlev@bellsouth.net] Sent: Tuesday, October 28, 2003 9:01 AM To: "Mr. David Harden" Cc= "Mr. Jeff Perlman" subject: FW: Proclamation I had run into Mitch Feldman CEO at Delray Medical Center last friday and he reminded me of the correspondence we had regarding recognition of DMC for their unique achievements. I hadn't heard so I asked him to summarize the newest awards and recognition they had received. The list below is quite impressive and it would be great if we could get a proclamation for them. Let me know your thoughts. Best, Jon JonLevinson~compuserve.com 561-243-2690 Office 561-243-9242 Fax 561-212-2799 Cell www.jonlevinson.com www. MyDelrayBeach.com ..... Original Message ..... From: McCarthy, Pat Sent: 10/27/2003 5:16 PM TO: jonlev@bellsouth.net Cc: Feldman, Mitch Subject: FW: Proclamation Hi John. Here is what we are using: 1. Three years in succession, ranked among the top 5% nationwide for overall cardiac services by HealthOrades, a leading health care ratings firm. Five star rated for treatment of coronary bypass, acute myocardial infarction and congestive heart failure. Ranked among the top 5 hospitals in the state for overall cardiac services three years in succession. 2. Ranked among the top 50 hospitals in the nation in the category of heart & heart surgery by U.S. News & World Report, July/August 2003 issue. 3. Money Magazine - The Best Healthcare for Your Family issue, fall 2003 ranked Delray Medical Center and three of our surgeons among the best for coronary bypass surgery. 4. Two years in succession, ranked among the Top 100 Hospitals by Solucient, a health care ratings firm It should be noted that we did not solicit these awards. Ail of them are based on ! Medfcare/Medpar data and adjusted for age, acuity, etc. They take into account mortality, infection, return for complications and so on. Thanks for your help with this. Pat McCarthy Director, Business Development/Marketing/Public Relations Delray Medical Center (561) 637-5127 Fax (561) 637-5297 pat.mccarthy~tenethealth.com Notice: This e-mail (including attachments) is covered by the Electronic Communications Privacy Act, 18 U.S.C. 2510-2521, is confidential and may be legally privileged. If you are not the intended recipient, you are hereby notified that any retention, dissemination, distribution, or copying of this communication is strictly prohibited. Please reply to the sender that you have received the message in error, then delete it. Thank you. ..... Original Message ..... From: Feldman, Mitch Sent: Monday, October 27, 2003 8:53 AM To: McCarthy, Pat subject: FW: Proclamation Please note accomplishment and source so we can get to the City officials for a proclamation ..... Original Message ..... Prom: Jon Levinson [mailto:jonlev@bellsouth.net] Sent: Mort 10/27/2003 8:38 AM To: Feldmmn, Mitch Cc: Subject: Proclamation I went back and saw my last correspondence to the City Mgr. was on 7/31 alerting him of the "top 40" list. Send me an email listing a few of the latest and greatest and I'll send it off and this time we can all follow up on getting this done. Hope you "hit 'em straight" Friday. Beet, Jon JonLevinson~compuserve.com 561-243-2690 Office 561-243-9242 Fax 561-212-2799 Cell www. RELenterprises.com www. MyDelrayBeach.com 2 WHEREAS, the Jewish War Veterans of the United States is the oldest active veterans organization in the United States of America, chartered by an act of Congress in 1896; and WHEREAS, an affiliate of this renowned group is the Jewish War Vetenms Ladies Aux41ia~ of the United States of America; and WHEREAS, this g~oup is dedicated to supporting the tights of veterans, widows and orphans of war, national defense, education for the handicapped, America's security, civil rights, patriotic observances, and aid to Israel; and WHEREAS, volunteers give of their time and talents to such causes as veteran's administration medical centers, community hospitals, girl scouts, recreation centers, United Service Organizations (USO), scholarship awards and naturalization programs. Hours are spent giving aid and comfort to senior citizens, and individuals suffering mental health afflictions; and WHEREAS, members lobby entidements, regardless of race, color or creed, fighting faithfully the battle of bigotry with service officers around the world; and WHEREAS, the Department of Florida Ladies Auxiliaxy, Jewish War Veterans of the United States of America are honoring flieix National President, Emma-Lou Rosenstein. NOW, THEREFORE, I, JEFF PERLMAN, Mayor of the City of Delray Beach, Florida, on behalf of the City Commission and citizens of Delray Beach, do hereby recognize and commend JEWISH WAR VETERANS LADIES AUXILIARY NATIONAL PRESIDENT EMMA-LOU ROSENSTEIN for her many and varied accomplishments, and congratulate her on her achievements as a fine example ora dedicated American. IN WITNESS WHEREOF, I have hereunto set my hand and caused the Official Seal of the City of Delray Beach, Florida, to be affixed this 180' day of November, 2003. JEFF PERLMAN MAYOR (96 DEPARTMENT OF FLORIDA · LADIES AUXILIARY JEWISH WAR VETERANS OF THE UNITED STATES Dear Mayor Jeff. Pearlman Our National Pres/dent Mrs. Emma -Lou Rosenst¢in, oftbe Sewish War Veterans Ladies Aux/liary will ~ce making her official visit to the Department of Florida on Sunday December 14th at 1;31) at Temple Siuai 2475. W. Atlantic Ave in Delray Beach. In her honor we would appreciate a Proclamation from the City of Delray Beach , to be presented to Her at the luncheon. We are enclosing a copy ora previous Proclamation for your convenience. Thanking you, hope to hear from you soun, Since~ly yours. ~ ~ Dorothy Gordon~Chainnan. 14230 A Nesting Way Delray Beach. Fla. 33484 561 495 4620 ~[I~'~E-7;~?~S, the JeWiSh War Veterans of the United States is the oldest active veterans organizati(~n in the U.S.A., chartered by an act of Congress in 1896; and ~'~,~, an affiliate of this renowned group is the Jewish War Veterans Ladies Auxiliary of the U.S.A.; and- [Xl~ztE.~_~, this group is dedicated to supporting the dghts of veterans, widows and orphans of war, national defense, education for the handicapped, America's security, civil dghts, patriotic observances, and aid to Israel; and ~/~'~_I~!?~, volunteers give of their time and talents to such causes as veteran's administration medical centers, community hospitals, gift scouts, recreation centers, U.S.O., scholarship awards and naturelization programs. Hours ara spent giving aid and comfort to senior citizens, and individuals suffedng mental health afflictions; and ~f'~J~-7~J~A~, with sen/ica officers around the world. Members lobby entitlements, regardless of race, color or creed, fighting faithfully the battle of bigotry; and ~fI'IER. F__.A~, the Department of Florida Ladies Auxiliary, Jewish War Veterans of the U.S.A. are honoring their National President, ~n; J~l'O~f, THE,7~z~Oz~, I, , ayor of the City of Boca Raton, do hereby proclaim December 2, 2001, as DAY in the City of Boca Raton, and urge all residents to join with me in recognizing the commitment and accomplishments of this organization, not only in this community and state, but also within the United States and abroad. TO: THRU: FROM: SUBJECT: SCOTT PAPE, SENIOR PLANNER/,,~T MEETING OF NOVEMBER 18, 2003 SITE PLAN REVIEW AND APPEARANCE BOARD AWARD RECOGNITION PROGRAM The Site Plan Review and Appearance Board (SPRAB) is conducting its 12th Annual Award Recognition Program. The awards are given to those property owners and their design teams who have significantly contributed to the beauty of the community through creative design or renovations to existing properties. Eligible projects are those that were approved by the Board, and received a Certificate of Occupancy during the previous fiscal year (October 1, 2002 - September 30, 2003). The SPRAB awards will be presented to the recipients mentioned below at the City Commission meeting. This year's design categories and recipients include: NEW COMMERCIAL DEVELOPMENT EXTERIOR RENOVATIONS Fidelity Federal Bank Spanish River Resort Fidelity Federal Bank & Trust (Owner) REG, Inc. (Architect) Kilday & Associates, Inc. {Landscape Architect) Tallmar, Inc. (Owner) Eliopoulos and Associates, Inc. (Architect) Jerry Turner & Associates (Landscape Architect) NEWINDUSTRIALDEVELOPMENT SIGNAGE Cobra Construction 505 Teen Center Cobra Construction (Owner) Kenneth Carlson (Architect) Kevin E. Holler (Landscape Architect) RESIDENTIAL DEDEVELOPMENT lan Plosker (Delray Beach Youth Council President) Frank Mckinney (Delray Beach Youth Council) Lula Butler (Delray Beach Youth Council) Camilucci Signs (Sign Contractor) Co-Winners: Renaissance Village North Atlantic Realty Group (Owner) Pasquale Kuritzky Architecture, Inc. (Architect) Dan Carter (Landscape Architect) The Colony Holiday Management Associates, Inc. (Owner) Merv Weinstein (Architect) Michael $chale Landscape Architect and Associates, P.A. (Landscape Architect) MEMORANDUM TO: FROM: SUBJECT: DATE: MAYOR AND CITY COMMISSIONERS CITY MANAGER ~ AGENDA ITEM # ~ o REGULAR MEETING OF NOVEMBER 18. 2003 FINAL PLAT APPROVAL/HERITAGE CLUB NOVEMBER 14, 2003 This is before the Commission to approve the final boundary plat for Heritage Club (a.k.a. Park Place Townhomes). The plat is a replat of the east quarter of Lot 5, Block 1, Model Land Company. The property is located on the south ff~de of S.E. 10~ Street between Federal Highway and Old Dixie Highway. All technical and staff comments have been addressed and the plat is ready for approval. Recommend approval of the final boundary plat for Heritage Club. S:\City Clerk\agenda memo~\Fin~l Plat. Heritage Club. 11.18.03 City Of Delray Beach Department of Environmental Services M E M 0 R A N D U M TO: FROM: DATE: SUBJECT: David T. Harden, City Manager William A. Grieve, PE, Assistant City Engineer L~..)~i November 12, 2003 Heritage Club (a.k.a. Park Place Townhomes) Plat The attached agenda request is for Commission approval of the boundary plat of the Heritage Club Plat. This property is a replat of the east quarter of lot 5, block 1, Model Land Company. This property is located on the south side of SE 10th Street between Federal Highway and Old Dixie Highway. Enclosed are a location map and a reduced copy of the plat. The Major subdivision was approved by the Planning and Zoning Board on August 18, 2003. No other board approvals were required. If this meets with your approval, please place it on the November 18, 2003 Commission Agenda for approval. Thank you! enc cc TAC file S:~EngAdmin~TAC~Park Place Town Homes~Plat Nov 18 2003 agenda memo.doc WILSON AVE. CENTRAL AVE. COLLINS AVENUE lOTH ST. '< S.E. 12TH RD. BANYAN TREE LANE g LIN TON BOULEVARD ENVIRONMENTAL SERVICES DEPARTMENT LOCATION MAP I lofl HERITAGE CLUB Date: November 12, 2003 AGENDA ITEM NUMBER:~L~_~ AGENDA REQUEST Request to be placed on: X Consent Agenda Regular Agenda __ When: November 18, 2003 Workshop Agenda Special Agenda Description of Agenda Item (who, what, where, how much): The attached agenda request is for Commission approval of the boundary plat of the Heritage Club Plat. This property is a replat of the east quarter of lot 5, block 1, Model Land Company. This property is located on the south side of SE 10th Street between Federal Highway and Old Dixie Highway. Enclosed are a location map and a reduced copy of the plat. The Major subdivision was approved by the Planning and Zoning Board on August 18, 2003. No other board approvals were required. Staff Recommendation: Approva~.~ Department Head Signature: City Attorney Review/Recommendation (if applicable): Budget Director Review (required on all items involving expenditure of funds): Funding Available: Yes / No Initials: N.A. Account Number Description Account Balance: Funding Alternatives: City Manager Review: Approved for Agenda: ~/No Hold Until: (if applicable) Initials: Agenda Coordinator Review: Received: S:\EngAdmin\TAC\Park Place Town Homes\Plat Novl8 2003 agenda.doc I:ITY OF OELRI1Y laERrlt CITY ATTORNEY'S OFFICE 200 NW Ist AVENUE · DELRAY BEACH, FLORIDA 33444 TELEPHONE 561/243-7090 · FACSIMILE 561/278-4755 Wdter's Direct Line: 561/243-7091 DELRAY BEACH AIFAm~k:B City DATE: MEMORANDUM November 11, 2003 TO: FROM: City Commission Brian Shutt, Assistant City Attorney SUBJECT: Acceptance of Easement Deeds for Public Sidewalk The followin~easement deeds grant to the City the means to maintain a sidewalk along N.E. 6"' Avenue. The project is known as Townplace at Delray and consists of the construction of residential housing. By copy of this memorandum to David Harden, our office requests that this item be placed on the November 18, 2003 City Commission agenda for acceptance. Please call if you have any questions. Attachment Cc: David T. Harden, City Manager Barbara Garito, City Clerk Randal Krejcarek, City Engineer R. Brian Shu~ Esq. City Attorney's Office 200 N.W. 1st Avenue Delray Beach, Florida 3???. EASEMENT DEED THIS INI)ENTURE, made this ~ day of I~lo'(~fi~:., 200~ by and between ~[~1~,,)}1') ~ , with a mailing address of 1~50 ~ll~' ~rr, uA,J~'- ~:"x~-~ ~c~ party of the first part, and the CITY OF DELRAY BEACH, with a mailing address of 100 N.W. 1st Avenue, Delray Beach, Florida 33444, a municipal corporation in Palm Beach County, State of Florida, party of the second part: WITNESSETH: That the party of the first part, for and in consideration of the mutual promises herein contained and other good and valuable considerations, does hereby grant, bargain, sell and release unto the party of the second part, its successors and assigns, a right of way and perpetual easement for the purpose of the construction and maintenance of a public sidewalk with full and free right, liberty, and authority to enter upon and to install and maintain such sidewalk across, through and upon or within the following described property located in Palm Beach County, Florida, to-wit: DESCRIPTION See Exhibit "A" Concomitant and coextensive with this right is the further right in the party of the second party, its successors and assigns, of ingress and egress over and on that portion of land described above, to effect the purposes of the easement, as expressed hereinalier. That this easement shall be subject only to those easements, restrictions, and reservations of record. That the party of the first part agrees to provide for the release or subordination of any and all mortgages or liens encumbering this easement. The party of the first part also agrees to erect no building or effect any other kind of constntction or improvements upon the above- described property. It is understood that upon completion of sidewalk construction, all lands disturbed thereby as a result of such construction performed thereon, will be restored to its original or like condition without expense to the property owner. Party of the fa'st part does hereby fully warrant the title to said land and will defend the same against the lawful claims of all persons whomsoever claimed by, through or under it, that it has good right and lawful authority to grant the above-described easement and that the same is unencumbered except as provided above. Where the context of this Easement Deed allows or permits, the same shall include the successors or assigns of the parties. IN WITNESS WHEREOF, the parties to this Easement Deed set their hands and seals the day and year first above written. (name printed or typed) (name printed or typed) By: STATE OF Florida- COUNTY OF '~0.~m ~ The foregoing instrument was acknowledged before me this ,~v'o day of ~t~J~b~,~' , 200_~by '~)aOJiC~ g-¥¢,' r~ (name of officer or agent), of Iq ~ I¥ (Ilalll~Lgolg~m~ a ~11 ~' (State or place of incorporation) corporation, on behalf of the corporation, v ^" has produced~:t,Dt.-~ $3~ I~O qq ~C~ 0 (~e of id~tification) ~ identification ~d ~d not take an oath. En~RF~: ,Imar~ 1~ (SE - _ Signature ofN',ot,aryPu~bric-? - State of 2 LOT I t12' ~ TRACT "B" LOT ~ LOT 1.7 . ~ Lor lL I TRACT "A ' // F-ASEI~I~I'1 ~. LOT 12 ~-5' GENERAL UTILITY EASE1VENT-~ SE. ~ LOT SKETCH OF DESCRIPTION NO~-~ THS IS NOT A SLRVEY ~ = CENTERIJ~ PA~E'S T't'E EAST L~ OF PLA T ~OOKN95'~ZYOO'"E.O 23-24 IS ASSUMED TO BEAR BETNG A PORTION OF LOT 1~ TOWN PLACE AT DELR4Y, ACCO~ TO 1HE PLAT TI~OF AS RECOR~ ~I PLAT BOOK 95~ PAGES 23 At4) 24, PUBLIC ~CORDS OF PALkl EEACH COIJVT~, FLO~DA, DESCR~E:ZD AS FOLLOWS: TH~ SOU~ST CO~ OF SAJ) LOT ~ ~ ~ST ~ ~ ~ LOT ~ A ~T~ ~ A ~T~ ~ 4~ t~ I; ~T~ ~ ~41 ~l TO A ~ ~ LOT ~' ~ N~ ~ LOT ~ A ~T~ ~ ~ ~ TO DA TE: NOVEMBER ,5, 2003 O'BRIEN, SUITER ~ O'BRIEN, .~lC CERTIFICATE OF AUTHORIZATION 1~LB$55 SURVEYOR AND MAPPER IN RESPONSIBLE CHARGE: PAUL D. ENGLE 2601 NORTH FEDERAL HIGHWAY DELRA Y 8EACH FLORIDA 3,3483 [561) 276-4501 (561) 732-,7,279 Prepa.,~d by: RETURN: R. Brian Shutt, Esq. City Attome3/s Office 200 N.W. 1st Avenue Delray Beach, Florida 3~a444 EASEMENT DEED THIS INDENTURE, made this ~gm day of COf-olb$d.., 200~ by and between ~,~loA ~rm~t~tA, ~, with a mailing address of tqm, tl.e. ~,~ ~,x~.. l>~t~'{ ~,~$3~3party of the first part, and the CITY OF DELRAY BEACH, with a mailing address of lb{5 N.W. 1st Avenue, Delray Beach, Florida 33444, a municipal corporation in Palm Beach County, State of Florida, party of the second part: WITNESSETH: That the party of the first part, for and in consideration of the mutual promises herein contained and other good and valuable considerations, does hereby grant, bargain, sell and release unto the party of the second part, its successors and assigns, a right of way and perpetual easement for the purpose of the construction and maintenance of a public sidewalk with full and flee right, liberty, and authority to enter upon and to install and maintain such sidewalk across, through and upon or within the following described property located in Palm Beach County, Florida, to-wit: DESCRIPTION See Exhibit "A" Concomitant and coextensive with this right is the further right in the party of the second party, its successors and assigns, of ingress and egress over and on that portion of land described above, to effect the purposes of the easement, as expressed hereinafter. That this easement shall be subject only to those easements, restrictions, and reservations of record. That the party of the first part agrees to provide for the release or subordination of any and all mortgages or liens encumbering this easement. The party of the first part also agrees to erect no building or effect any other kind of construction or improvements upon the above- described property. It is understood that upon completion of sidewalk construction, all lands disturbed thereby as a result of such construction performed thereon, will be restored to its original or like condition without expense to the property owner. Party of the first part does hereby fully warrant the title to said land and will defend the same against the lawful claims of all persons whomsoever claimed by, through or under it, that it has good right and lawful authority to grant the above-described easement and that the same is unencumbered except as provided above. Where the context of this Easement Deed allows or permits, the same shall include the successors or assigns of the parties. IN WITNESS WHEREOF, the parties to this Easement Deed set their hands and seals the day and year first above written. (name printed or typed) (name printed or typed) STATE OF Irlorldo COUNT'/OF The foregoing instrument was acknowledg,ed before me this ~j04'rI day of ~[-.o~o~r ,200_~ by ~IS~o..CK IYl~c~n~?~[~ ( .n.n.n~.e of officer or agent), of ~..v~.¢~ ~o1:~ ~ (name of corporation), a FI-~ d o.. (State or place of incorporation) corporation, on behalf of the corporation. ~he is personally known to me or has produced - not take an oath. (SEAL) !'' MY COl~ # DO 151190 (type of identification) as identification and did/did Signature of Notary Public - State of -Ft..Og.l l:~ 2 LOT 1 ~ (,1 TRACT "B" ~¢N ? LOT 16 LOT I~ LOT 1,3 TRACT "A" SKETCH OF DESCRIPTION NO~E~ T~ IS NOT A S~VEY T~ EAET UNE OF PLAT BOOK 95~ PAGE'S 2,~'-24 IS A5~ TO BEAR NO~OO'OO'E. BE~G A PORTION OF LOT 12 AND A POR~7ON OF TRACT T~CE A T DELRA Y, ACCORDNG TO TI-~ PLA T Tt'EREOF AS RECORDED JV PLA T ~30K 95, PAGES 23,4hD 24, ~ FOLLOWS: CO~ AT T~ SOUTHEAST CO~ OF SAID LOT ~2; NO~O0'O0~ ALONG Tt'E EAST I,,~ OF SA/D PLA T, A D/STANCE OF 23.76 i.~,~.1 TO I~E PO~I'i' OF BEGI~ THENCE CONTJVUE NO~30'O0,',',',',',',',',"~ ALON~, SAD EAST I~ A DISTANCE OF 2806 ~-~,- ~;' TO TI4E SOU77.F_AST ~ OF LOT G OF SA. D PLAT OF TOWNPLACE A T DELRA ~ I~]~ICE ~90'OO*OO"'W, ALONG ~ SOUTH I..~ OF SAID LOT ~ A DISTANCE OF itO.,'t:.~'.i; TH~VCE S.~)'O0"W,, A DISTANCE OF 24.96 r,-*.,; THENCE S.45~70'00"r~ A DISTANCE OF 4.38~'t.t./ TO TI-EPO~IT OFGEGI~¢,~VC, BE)VG A PORTION OF LOT~ I AI~) 16 Af~ A POR~ION OF TRACT ~ TOWNOLACEATDEI_RAY, ACCORD~'VG TO TI.~PLAT ~OF AS RECORDED I~I PLA T BOOK 95, PAGES 23 AND 24, PL~LIC RECORDS OF PALM BEACH ~ FLOR~ ~ AS FOLLOWS: DA TE: NOVEMBER J, 2003 O'BRIEN, SUITER & O'BRIEN, ffVC CERTIFICATE OF AUTHORIZATION t/tLB,353 SURVEYOR AND MAPPER IN RESPONSIBLE CHARGE: PAUL D. ENGLE 2601 NORTH FEDERAL HIGHWAY DELRA Y BEACH FLORIDA 3,:7483 (561) 276-4501 (561) 732-.:7279 MEMORANDUM TO: FROM: SUBJECT: DATE: MAYOR AND CITY COMMISSIONERS CITY MANAGER~/~ AGENDA ITEM # ~Q-- - REGULAR MEETING OF NOVEMBER 18. 2003 PAYMENT/FLORIDA EAST COAST RAILWAY COMPANY (FEC)/ATLANTIC AVENUE CROSSING NOVEMBER 14, 2OO3 This is before the City Commission m approve a payment in the mount of $45,453.57 to Florida East Coast Railway Company (FEC) for reconstruction of the East Atlantic Avenue crossing. Funding is available from 334-3162-541-61.17 (General Construction Fund/Street Reconstruction). Recommend approval of payment to Florida East Coast Railway Company for reconstruction of the East Atlantic Avenue crossing. S:\City Clerk\agenda mernos\Payment. FEC.11.11.03 City Of Delray Beach Department of Environmental Services M E M 0 R A N D U M TO: FROM: DATE: SUBJECT: David T. Harden Randal L. Krejcarek, PE 29 Oct 2003 Atlantic Ave FEC Railroad Crossing Please find an agenda request for Commission approval of the payment to Florida East Coast Railroad the amount of $~ for the reconstruction of the East Atlantic Avenue crossing. J~'5'oH~)~.~'<'j P'¥- In 1988 the City entered into a transfer agreement with FDOT, in which the City assumed all maintenance obligations from the FDOT. This includes the above costs to rebuild this crossing. The last time FEC rebuilt this crossing was in 1994. This amount will be paid from the Street Reconstruction account, #334-3162-541-61- 17. A map of the crossing location is attached. If this meets with your approval, please place it on the 18 Nov 2003 Commission meeting for Commission approval. eric cc: Richard C. Hasko, PE, Environmental Services Director FEC File $: IEngAdmin IFECI2003 nov 18 agenda memo. DOC IMPORTANT FLORIDA EAST COAST RAILWAY COMPANY ORIGINAL INVOICE Show this Reh-~rence No. on all con'espondence This i~voice is due and payable not later than DATE DUE 09/19/03 /'~C-~ ~/O7 'Z..~. ~. CITY OF DELRAY B~H 100 N WlST AVE DELRAY BEACH FL 33444 IN CASE OF ANY EXCEPTION TO THIS INVOICE, CONTACT ACCOUNTS RECEIVABLE FEC RAILWAY CO., ST. AUGUSTINE, FL. PHONE: (800) 342-1131 EXT: 2228, 2229, 2230, 2231 Original Doc No MP 316 + 4423 FT AFE 730584crossingRebuilt ATLANTIC AVE RECEIVED SEP 0 8 2003 PLEASE REMIT 45,453.57 [' US FUNDS ONLY INVOICE REMITTANCE SLIP CUSTOMER NUMBER / NAME 188761 CITY OF DELRAY BCH TO RECEIVE PROPER CREDIT PLEASE DETACH THIS PORTION OF THE INVOICE AND MAIL IT WITH YOUR CHECK TO: FLORIDA EAST COAST RAILWAY CO. P 0 BOX 863029 ORLANDO, FL 32886-3029 LLC INVOICE NUMBER 6527835 DATE DUE 09/19/03 AMOUNT DUE 45,453.57 US FUNDS ONLY INVOICE DATE 09/04/03 I CHECK NO. CHECK DATE AMOUNT PAID ON THIS BILL ATLANTIC AVENUE CITY of DELRAY BEACH ENVIRONMENTAL SERVICE8 DEPARTMENT 0ATE 11/11/05 ATLANTIC AVE 8, FEC CROSSING : LOCATION MAP 2003-200 1 OF 1 Date: 29 Oct 2003 AGENDA ITEM NUMBER: AGENDA REQUEST Request to be placed on: X Consent Agenda Regular Agenda Workshop Agenda Special Agenda When: 18 Nov 2003 Description of Agenda Item (who, what, where, how much): Request for Commission approval of the payment to Florida East Coast Railroad in the amount of $45,453.57 for the reconstruction of the East Atlantic Avenue railroad crossing. In 1988 the City entered into a transfer agreement with Florida Department of Transportation (FDOT), in which the City assumed all maintenance obligations from the FDOT. This includes the above costs to rebuild this crossing. A map of the crossing location is attached. Staff Recommendati. on: A~roval /2 Department Head Slgnature:~..~~.~ //~]Z-o.~ City Attorney Review/Recommendation (if applicable): Budget Director Review (required on all items involving expenditure of funds): Funding Available: ~s / No Initials: $45,453.57 z~ Account Number 334-3162-541-61.17 Description Street Reconstruction Account Balance: Funding Alternatives: (if applicable) City Manager Review: Approved for Agenda: ~/~/No Hold Until: Agenda Coordinator Review: Initials: Received: S:XEngAdmin\FEC\2003 nov 18 agenda.doc RESOLUTION NO. 77-03 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, SUPPORTING EXPANSION OF THE MEMBERSHIP OF THE PALM BEACH METROPOLITAN PLANNING ORGANIZATION TO INCLUDE VOTING REPRESENTATIVES FOR THE TOWN OF GREENACRES, V~LLAGE OF ROYAL PALM BEACH AND VH J.AGE OF WELLINGTON. WHEREAS, the Transportation Equity Act of the 21't Century (TEA 21) and Chapte~ 339.175, Florida Statutes, call for metropolitan planning organizations to perform transportation planning in u~ban areas; and WHEREAS, Chapter 339.175, F.S., sets forth the requirements for creation of the MPO through an Interlocal Agreement and identified the membership and des'~mation process by the Governor's Office; and WHEREAS, the Palm Beach Metropolitan plunning Organization (MPO) has agreed to request the Governor expand its membership to provide voting representatives for the Town of Greenacres, the Village of Royal Palm Beach and Village of Wellington; and WHEREAS, Greenacres and Royal Palm Beach will annually alternate membership on the MPO; and WHEREAS, the Governor must approve the addition of voting members for the Palm Beach Metropolitan phnning Orguni~ation. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, THAT: Section 1. The City of Delray Beach, Florida supports the expansion of the membership of the Palm Beach Metropolitan Plannir~g Organization to include voting representatives for Greenacres, Royal Palm Beach and Wellington. Section 2. The Governor approve the expanded MPO membership. PASSED AND ADOPI'I6D in regnhr session on this the 18th day of November, 2003. ATfI~T: MAYOR City Clerk Approved as to Foma and Legal Suffideacy City Attorney 2 RES. NO. 774)3 PALM BEACH METROPOLITAN PLANNING ORGANIZATION October 30, 2003 160 Australian Avenue, Suite 201, West Palm Beach, Florida 33406 Phone 561.684.4170 Fax 561.233.5664 ____w,/~ .13bcgov. com/rn~e .... The Honorable Jeff Perlman Mayor City of Delray Beach 100 NW First Avenue Delray Beach, Florida 33444 RE: Additional MPO Voting Members Dear Mayor Perlman: Following the 2000 Census, the Palm Beach Metropolitan Planning Organization (MPO), in cooperation with the Governor, is reviewing its membership. The membership currently consists of five County Commissioners, two elected officials each from Boca Raton and West Palm Beach, one elected official each from Delray Beach, Boynton Beach, Lake Worth, Riviera Beach, Palm Beach Gardens, Jupiter and Belle Glade, one elected Port of Palm Beach Commissioner, and one statutorily authorized planning board member appointed by the County Commission for a total of 18 members. Chapter 339.175, Florida Statutes, establishes a maximum of 19 members for the MPO. The MPO Board has approved a Reapportionment Plan that will expand the total membership to the maximum number. The Village of Wellington would be added to the MPO Board. In addition, the Town of Grcenacres and the Village of Royal Palm Beach would annually alternate membership in the seat currently designated for the planning board member. This Plan will be submitted to the Governor for approval with documentation which includes supporting resolutions from the MPO Board member agencies. Attached is a sample resolution for your consideration. The adopted resolution should be forwarded to the MPO office. Following approval of the Reapportionment Plan by the Governor, the MPO will distribute an interlocal Agreement to all member agencies for approval and execution. When all parties have executed the Agreement, the new members will be seated on the expanded MPO. SAMPLE RESOLUTION A RESOLUTION OF THE MUNICIPALITY, FLORIDA, SUPPORTING EXPANSION OF THE MEMBERSHIP OF THE PALM BEACH METROPOLITAN PLANNING ORGANZlATION TO INCLUDE VOTING REPRESENTATIVES FOR THE TOWN OF GREENACRES, VILLAGE OF ROYAL PALM BEACH AND VILLAGE OF WELLINGTON. WHEREAS, the Transportation Equity Act of the 21 st Century (TEA 21) and Chapter 339.175, Flodda Statutes, call for metropolitan planning organizations to perform transportation planning in urban areas; and WHEREAS, Chapter 339.175, F.S., sets forth the requirements for creation of the MPO through an Interlocal Agreement and identified the membership and designation process by the Governor's Office; and WHEREAS, the Palm Beach Metropolitan Planning Organization (MPO) has agreed to request the Governor expand its membership to provide voting representatives for the Town of Greenacres, the Village of Royal Palm Beach and the Village of Wellington; and WHEREAS, Greenacres and Royal Palm Beach will annually alternate membership on the MPO; and WHEREAS, the Governor must approve the addition of voting members for the Palm Beach Metropolitan Planning Organization. NOW THEREFORE, BE IT RESOLVED BY THE MUNICIPALITY THAT: The MUNICIPALITY supports the expansion of the membership of the Palm Beach Metropolitan Planning Organization to include voting representatives for Greenacres, Royal Palm Beach and Wellington. 2. The Governor approve the expanded MPO membership. · The foregoing Resolution was offered by who moved its adoption. The motion was seconded by , and upon being putto a vote, the motion passed. The Chairman thereupon declared the Resolution duly adopted this day of ,2003. MUNICIPALITY, FLORIDA By:. Mayor ATTEST: By: Municipal Clerk APPROVED AS TO FORM AND LEGAL SUFFICIENCY By: Municipal Attorney Your support is appreciated. If you have any questions, please do not hesitate to contact me. Sincerely, Director RMW:eer Attachment [ITY I)F DELRilY BEACH CITY ATTORNEY'SOFFICE ~oo Nw ].st ^¥ENUE. DFLR^¥ BEACH, FLOR,DA ~3444 TELEPHONE 561/243-7090 · FACSIMILE 561/278-4755 DATE: Wdter's Direct Line: 561/243-7091 MEMORANDUM November 12, 2003 TO: FROM: City Commission _ Brian Shutt, Assistant City Attorney SUBJECT: Proposed A.qreementwith Concert Promoter Attached please find a proposed agreement with Worldwide Entertainment, Inc. regarding the promoting of concerts at the tennis stadium. This Agreement was brought before you at the November 12, 2003 Commission Workshop meeting. We have made minor changes to the Agreement based upon the comments received at that meeting. The essential terms of the agreement are as follows: Three year initial term, with the possibility to renew for a five year term upon the consent of both parties. Grants Licensee the exclusive use of the stadium for pop/rock/country/contemporary musical shows or concerts. The City shall be allowed to hold any sporting event or any festival or cultural event at the stadium provided the date is available and notice is given. The City Manager may deny events that are not deemed appropriate, that denial may be appealed to the City Commission. Licensee must hold at least 5 events with a minimum of 15,000 tickets sold for each year of the Agreement. Licensee must give the City 60 days prior notice of each event, the City gives Licensee 45 days prior notice of any event that it wishes to hold; Licensee may not hold any event on the list of blackout days provided in the agreement. Licensee shall pay for all costs associated with each event, however, Licensee shall not be charged a facility fee for the use of the stadium during the first year. Licensee shall be charged a facility fee of $1.00 per ticket during the second year and a facility fee of $1.50 per ticket during the third year. Licensee may make improvements to the stadium, upon prior approval of the City, and which shall become the property of the City upon completion. Licensee shall indemnify the City for the events as well as provide insurance and a security deposit in the amount of $50,000.00 to the City. The City may terminate this Agreement if Licensee begins bankruptcy proceedings or if Licensee fails to meet the 5 events and 15,000 tickets sold during each year. By copy of this memo to David Harden, our office requests that this item be placed on the November 18, 2003 City Commission agenda. Please call if you have any questions. Attachment CC: David Harden, City Manager Barbara Garito, City Clerk Robert Baroinski, Assistant City Manager Brahm Dubin LICENSE AGREEMENT THIS AGREEMENT made this __ day of _, 200_ by and between the CITY OF DELRAY BEACH, FLORIDA, a municipal coq)oration of the State of Florida (hereinafter referred to as "City") and WORLDWIDE ENTERTAINMENT, INC., (hereinafter referred to as "Licensee"). WITNESSETH: WHEREAS, City owns and controls certain land upon which is located the Delray Beach Stadium, and hereinafter called "Stadium"; and WHEREAS, Licensee wishes to hold certain non-tennis related Events at the Stadium; and WHEREAS, City has determined that it is in the public interest to enter into an agreement with Licensee for such Events to be held at the Stadium. NOW, THEREFORE, it is mutually agreed as follows: 1. License/Term. (a) Licensee has presented to the City that it would like to use the Stadium and access ways thereto for the sole purpose of presenting the Events. The term "Event(s)" is defined as all pop/rock/country/contemporary musical shows or concerts. (b) The License shall be for the exclusive use of the Stadium during the Event, including an agreed upon time prior to and after the Event. Licensee shall only hold Events at the Stadium that have previously been approved by the City, as provided for herein. Licensee shall provide a minimum of 5 Events annually during the term of this License. Licensee shall provide the City a minimum of 60 days notice prior to each Event. Licensee will be responsible for confirming with thc City the availability of the Stadium for any Events that it may schedule. The City or other entities approved by the City shall be able to use the Stadium and schedule festivals or cultural events associated with the City for time periods in which the City has not received notice from Licensee that it will bc holding an Event during that time period. (c) The term of this License shall be for a period of three (3) years, unless terminated as herein provided. This License may be renewed for a five (5) year term upon the consent of the parties and upon the approval of any amendments to this License. The start of the term shall be date of this License as provided above. 2. Purpose. The parties agree that Licensee shall promote and produce Events in a manner which complies with community standards and appeals to the interest of the general public, and use its best efforts to promote the Events at the Stadium. Licensee, at its sole cost and expense, shall provide management and personnel experienced in the promotion and production of the Event and for the purpose of supervising and directing Licensee's obligations under this Agreement. 3. Licensee's Rights for the Events. Licensee shall have authority, subject to the provisions and limitations set forth in this agreement, to enter into contracts or agreements to put on the Events. All such contracts shall be negotiated and executed by Licensee in its name and shall not be contracts and obligations of City. All contracts entered into by Licensee shall specifically contain language which provides that City is not a party to such agreement and is not obligated in any manner by any of the terms therein. The Licensee's rights are subject to the rights and limitations and obligations that currently exist between the City and Coca-Cola of Florida, Match Point Inc., Players International Management, Inc., and Ticket Master-Florida Inc. This Agreement shall also be subject to the terms and conditions contained in the agreement for the Chris Evert tennis event, which is renewed each year. Licensee also understands and agrees that it shall not be allowed to hold any Events at the Stadium as provided by the list of blackout dates as shown on Exhibit "A". However, Licensee, agrees and understands, regarding the International Tennis Tournament, if the ATP changes the dates that the tournament is to be played at the Stadium, Licensee shall consent to such change as provided by the ATP. It is fin'ther provided, that if Match Point Inc., the entity that owns the International Tennis Tournament, agrees, in writing, to allow an Event to occur during the time period that is blacked out, then such Event may occur. Licensee, its subcontractors, contract vendee's and any other entity doing business with Licensee related to the Stadium shall agree that their rights are subject to the other contracts listed in this Paragraph. Licensee further agrees that prior to the commencement of any Events pursuant to this Agreement, Licensee shall comply with any and all licensing requirements and receive all necessary permissions, permits, approvals and license which are required in order to perform the activities under this Agreement. 2 4. Ci,ty Approval of Event and Content. All individual entertainment or concerts must be approved by the City Manager prior to the concert event. Licensee hereby agrees to provide City with a right to review the content of the entertainment scheduled to take place at the Stadium, and Licensee hereby further agrees that if the City brings a timely written objection to the content of any Event due to, but not limited to, the obscene, immoral or lewd nature of the proposed entertainment or event, Licensee shall not schedule and/or cancel the Event at no cost or penalty to City. City in turn agrees not to unreasonably withhold approval for any Event, and will withhold approval only when the City Manager makes a written determination that an Event has content that would be inappropriate for this venue. Furthermore, Licensee agrees that it will make a good faith effort to only schedule entertainment which does not contain obscenity or lewd and lascivious behavior. City shall review all scheduled Events, and if the City Manager determines that the content of the Event will contain these inappropriate and objectionable materials, a written notice of rejection shall be sent to Licensee by certified mail, return receipt requested, within seven (7) calendar days from the date notice of the Event is provided to City. Licensee may bring an appeal of the City Manager's decision before the City Commission at the next available regular Commission meeting following compliance with public advertisement laws. 5. Scheduling Events and Conflicts. Licensee shall have the exclusive right to schedule all pop/rock/country/contemporary events at the Stadium [subject only to City's right to review the nature and content of the event as set forth in paragraph (4) above, and in addition to City's right to utilize the Stadium as set forth herein and subject to conflict with City activities]. Prior to scheduling events at the Stadium, Licensee shall check with City to determine that the proposed event shall not conflict with other events. City shall provide at least forty-five (45) days notice to Licensee of City's events to be held at the Stadium. Licensee shall provide to City through the City Manager or his/her designee, on a monthly basis, a current calendar of events scheduled at the Stadium. Licensee also acknowledges and agrees that requests to utilize the Stadium from various community and not-for-profit groups will not be unreasonably withheld. Additionally, City shall be authorized to schedule and utilize the Stadium for City festivals or cultural events or events in which City is a co-sponsor provided such events do not conflict with events previously scheduled by Licensee and Licensee shall receive no compensation for City's use. Licensee may assist the City in obtaining talent for the City events, if the City so desires. 6. Facilities and Services Provided by City. Unless otherwise herein specified, City shall be responsible for, or agrees to provide, the following facilities and production assistance in connection with the conduct of and staging of the Event: (a) (b) use of the Stadium; all electrical, water and sewer utilities and one on-site electrician (all costs and expenses are Licensee's responsibility) for the duration of the Event based upon an approved cost schedule; (c) adequate space for and operation of concessions, retail booths, etc. (Licensee shall place and operate the concessions and retain all revenues from its concessions and retail booths); (d) restroom facilities and supplies (Licensee shall be responsible for cost of supplies and cleanup of any facilities); (e) use of areas and facilities for entertainer lounge and dressing area, event staff and technicians, press, volunteers, and concessionaires as available and suitable and as mutually agreed to. In the event areas are not available or suitable Licensee shall be responsible for same. Areas will include tables, chairs, furniture and air conditioning as mutually agreed to (Licensee shall be responsible for the preparation of such areas as well as the cleanup of such areas aRer the Event); (0 on and off-site directional signage (Licensee shall pay for the costs of City directional signage for each Event); (g) all necessary permits (Licensee shall pay all costs for permitting); (h) mutually agreed upon marketing support of the Event; (i) maintenance personnel to maintain and clean the restrooms as well as garbage pickup during and post event (Licensee shall be responsible for cost of personnel); (J) personnel to assist with issues involving the Stadium during the Event (Licensee shall be responsible for cost ofpersormel); (k) 7. garbage dumpsters (Licensee shall be responsible for cost of dumpsters). Staging and Production of the Event. 4 The organization, staging, and conduct of the Event will be the responsibility of the Licensee, which responsibilities shall include the following: (a) handling ticket and box office sales; (b) Obtaining an Event Director, all personnel involved in the Event, and the Event participants; (c) Administering the entire Event; (d) Setting up each Event on-site and handling all activities of the Event, including set up and tear down of the stage, and lighting and sound systems; (e) Soliciting sponsorship sales and television rights sales for the Event; (O Handling promotions, advertising, sales, public relations, and program production for the Event; (g) Lialsing with the charity beneficiaries selected by Licensee for the Event; (h) Licensee is responsible for the cost of covering courts if the courts need to be covered as determined by the City; (i) Licensee shall pay for all expenses relating to phone usage by Licensee, including, but not limited to, hook-up, dial tone, and usage charges; (j) Licensee shall handle and be responsible for all security measures concerning the Event, including but not limited to, the box office and ticket sales. (k) Licensee shall be responsible for all other costs associated with preparing the Stadium for each Event that has not been specifically stated in this Agreement, including but not limited to, providing a stage, lighting system or sound system, and any other utility cost not previously mentioned as well as upgrading or changing any equipment associated with the Stadium. 8. Ticketmaster. (a) City, or its designee, shall permit the use of the box office services during the day of the Event, at a time that is mutually agreeable to both parties, and one (1) Ticketmaster ticketing machine. The City has entered into an exclusive agreement with Ticketmaster-Florida, Inc. which provides that all tickets must be purchased through Ticketmaster. Furthermore, nothing in this Agreement shall be contrary to any provision in the agreement between the City and Ticketmaster-Florida, if it is determined by a court of competent jurisdiction that any provision of this Agreement is contrary to any provision of the agreement between the City and 5 Ticketmaster-Florida, then the provisions found in the agreement between the City and Ticketmaster-Florida shall govern. (b) City shall pay one hundred percent (100%) of all amounts due to Licensee within 48 hours after the City receives a check from Ticketmaster-Florida, Inc. If Licensee fails to hold the Event as scheduled, Licensee shall be responsible to Ticketmaster-Florida, Inc. for all refunds incurred as a result of the cancellation or rescheduling, up to the face amount of the ticket price per ticket purchased and refunded plus any additional credit card fees that may be imposed. 9. Improvements. Licensee shall provide all improvements to the Stadium or entryway to the Stadium as necessary for each Event. This shall be done at Licensee's sole cost and expense and only after the prior approval of the City, where such approval may be withheld by the City, in its sole discretion. If Licensee undertakes such improvements, the improvements shall be made in accordance with all building codes and regulations as well as any other applicable roles or regulations governing such improvement. The improvements shall also be made to the satisfaction of the City and shall in no way interfere with the use of the Stadium by the City. Once such improvements are completed they may also be used by the City, the improvements shall become the property of the City, if it so desires. If the City does not desire to allow the improvements to remain, Licensee shall remove such improvements within a reasonable period of time as requested by the City. Prior to the start of the construction of any improvement, the City shall have the right to require from Licensee a payment and performance bond, in the amount of 110% of the improvement cost as well as a 10% warranty bond for a one year period, in a form acceptable to the City. 10. Independent Contractor Statns. It is understood between the parties that the relationship of City and Licensee is that of an independent contractor. Licensee shall have no authority to employ any person as an employee or agent on behalf of the City for any purpose. Neither Licensee or any person engaging in any work relating to Licensee's rights and obligations set forth herein at the request of or with the consent (whether actual or implied) of Licensee shall be deemed an employee or agent of City, nor shall any such person represent himself to others as an employee or agent of City. Should any person indicate to Licensee or any employee or agent of Licensee, by written or oral communication to Licensee, that the person 6 believes Licensee or an employee or agent of Licensee to be an employee or agent of City, Licensee shall use its best efforts to correct or cause its employee or agent to correct that belief. 11. Compliance with Licensing Requirements. Licensee, prior to commencement of any activities pursuant to the provisions of this agreement, shall comply with applicable federal, state, county and City requirements, laws, rules and regulations and ail licensing requirements and receive ail necessary permissions, permits, approvals and licenses which are required to perform the activities of producer and promoter as set forth herein. 12. Compliance with Laws. Licensee agrees to comply with all applicable federal, state, county, and local laws and regulations regarding non-discrimination and specifically agrees not to discriminate against any person on the basis of color, race, religion, age, creed, sex, national origin or disability. 13. Concession Rights. The Licensee has the sole and exclusive fight to sell or give away food and beverages and any and all other consumables, and to control the concessions referred to above and to approve the sale or give away of the above during the time of the Event. Licensee shall not have the fight and shall not offer for sale or give away any items reserved to Coca-Cola of Florida by Agreement with the City. Licensee, its agents or assigns, shall have the limited fight to engage in concessions with regard to merchandise. All concessions must be approved 48 hours in advance of scheduled Event by the City or its designee. The City reserves the fight to reject the sale of any and all concessions 48 hours before the Event. However, in no event shall the sale of any facsimile of any weapon, silly string, poppers or any similar item be allowed. (This provision may aiso be enforced by the City Police Department). In addition, Licensee may provide temporary structures at its own expense, for the sale of concession items provided that the size, construction and location of such temporary structures shall not impede the normal and safe flow of vehicular and pedestrian traffic and shall comply with all applicable laws and regulations. In providing the merchandise concession service, Licensee or any person, firm or corporation with whom a contract for such purpose (hereinafter referred as "Concessionaire") shall comply with the following provisions provided, however, that Licensee shall remain ultimately responsible to City for all obligations required of the Concessionaire: (a) Concessionaire shall, prior to commencing any activities, obtain any and all permits and licenses that may be required in connection with the operation of this concession. 7 (b) Concessionaire shall not sell or give away or otherwise dispose of any commodity which in the opinion of the City shall cause undue litter. (c) All food, confections, beverages and refi'eshments, etc. sold or kept for sale shall be first class and quality, wholesome and pure, and in accordance with Department of Health requirements and shall conform to all federal, state, county and municipal laws, ordinances, rules and regulations in all respects. (d) Concessionaire may, at its expense, furnish additional equipment and fixtures to be utilized in the concession. Concessionaire shall submit plans and speci- fications concerning fixtures and equipment to City for approval at least one week prior to installation of any items. For the purpose of this agreement, "fixture" shall be defined as anything annexed or affixed to a building or structure or which appears to be so affixed or annexed, regardless of whether it is capable of being removed. (e) The Concessionaire shall provide all maintenance, repair and service required on all equipment used on the concession. (f) Concessionaire shall keep all fixtures, equipment and personal property, whether owned by Concessionaire or City, in a clean and sanitary condition and shall cleanse, fumigate, disinfect and deodorize as required and whenever directed to do so by City. All state health laws and state health department regulations must be strictly complied with. All janitorial services necessary in concession area shall be provided by Concessionaire at Concessionaire's expense. (g) Concessionaire agrees to dispose of all refuse and garbage, in compliance with all applicable laws, ordinances and health codes, at Concessionaire's expense, and to keep outside container areas cleaned at all times. (h) If the concession is operated by a person, firm or corporation other than Licensee, such person, firm or corporation shall at all times maintain workers' compensation insurance coverage for all employees which it employs within the areas and facilities covered by this Agreement, together with the policy or policies of public liability and products liability insurance and provides limits of at least One Million ($1,000,000.00) Dollars for combined single limit coverage; and provide fire legal liability in the amount of Five Hundred Thousand ($500,000.00) Dollars. Such policies shall provide that they will not be canceled or amended without at least ten (10) days written notice to the Risk Manager of City and shall name City, and its designee, its officers, agents and employees as additional insureds. 14. Event Personnel and Equipment. Licensee shall provide all personnel needed for thc Event, including, but not limited to, ticket sellers, ticket takers, ushers, sound technicians and stage hands. Licensee shall bc responsible for the installation or removal of any additional staging or sound and/or lighting which is to be utilized for the Event or any other equipment of any type or nature which is needed for thc Event. Licensee shall designate a management representative in a timely manner who will coordinate the Event with the City and its designee. Licensee shall be responsible for the cost of all chair rentals that may be required and the cost of all staging, lighting and sound equipment, except as otherwise stated in this Agreement. 8 Licensee shall be responsible for the cost of all repairs needed to the Stadium when repairs are not the result of normal wear and tear. Licensee and the City's designee shall perform a "walk through" before and after the Event. 15. Police~ Securit~ and Emergency Personnel. Licensee agrees to make arrangements with the City Police Department and City's designee to provide for City police personnel which the City determines, in its sole discretion, is necessary for the Event. Licensee shall pay the officers at a rate to be determined by the City based on an analysis of the number of officers available to work the event, the number of officers required by the event and other factors within the sole discretion of the City. Licensee shall, at least thirty (30) days prior to the Event, consult with the Chief of Police or his designee and the City's designee to determine the proper scheduling of security for the Event and the rate that will be applicable for the Event. Also, Licensee shall contact the City Fire Department and the City's designee to make arrangements for Emergency Medical Service personnel to be present at the Event at Licensee's expense. Licensee may use private security personnel inside the Stadium. Licensee shall pay for all costs for police, security and emergency personnel. 16. "Set-Up"~ "Tear-Down" and "Clean-Up". Licensee shall be responsible for personnel and equipment necessary for set-up prior to the Event and tear-down and clean-up at the Stadium upon completion of the Event. Clean-up shall include, but not limited to, removal of all debris, equipment, staging, tables, chairs and any other concert or evant-related equipment. In all cases, clean-up from an event shall be complete within 24 hours after the completion of the event. If the clean-up is not completed within twenty-four (24) hours, the City shall perform the clean-up and shall then bill the actual cost of clean-up (wages of City employees utilized times hours required to complete clean-up, in addition to any other expenses) to Licensee. Said costs shall be paid by Licensee within thirty (30) days. Furthermore, Licensee is required to have a supervisor present during all "tear-down" and clean-up operations. 17. Eiectment from Property. City at all times reserves the right to eject or cause to be ejected from the premises any person or persons violating or to keep from violating any of the rules or regulations of the City, County, State or Federal laws, and neither City nor any of its officers, agents or employees shall be liable in any manner to Licensee or its officers, agents, or 9 employees for any damages which may be sustained by Licensee through the exercise of this right by City. 18. City's Right to Control Premises. City or its designee at all times reserves the right to eject or cause to be ejected from the premises any person or persons violating (or to keep persons from violating) any of the rules or regulations of the City or any county, state or federal laws, and neither the City, its designee nor of any its officers, agents or employees shall be liable in any manner to Licensee or its officers, agents or employees for any damages which may be sustained by Licensee through the exercise of this right by City or its designee. 19. Parking, Signage and Traffic Control. The City shall provide parking spaces on City owned or controlled property for the Event which the City, in its sole discretion, determines it can make available without adversely impacting other public parking needs. Licensee shall staff and manage such parking. Licensee shall be responsible for obtaining all additional parking that may be necessary to provide sufficient parking for the Event, including such additional parking as may be necessary in the opinion of the City, in order to ensure adequate parking is provided for the Event. Licensee may provide onsite signage upon the prior approval of the City, which approval shall not be unreasonably withheld. City shall provide traffic control, barricades and signs, as it deems necessary, in its sole discretion, and Licensee shall pay for the entire cost &providing such traffic control. 20. Insurance. Licensee shall obtain insurance at its own cost and expense of the type, nature, and amount and pursuant to the terms which are set forth on Exhibit "B" which is attached hereto and incorporated herein by reference. The City and its designee shall be named additional insureds on all insurance certificates. 21. Right to Enter. City and its designee and authorized agents and employees shall have the right to enter upon the subject premises at any and all reasonable times for the purpose of inspection and observation of Licensee's operation to assure that requirements of this agre~nent are upheld and that no violations of the rules, statutes, ordinances or regulations have occurred or are occurring. Said inspections may be made by persons identified to Licensee as City employees or City designees authorized for such inspection or may be made by independent contractors engaged by City or its designee. Nothing contained herein shall be deemed a waiver of Licensee's obligation to hold the Event as provided in this Agreement. 10 22. Retention of Property Rights by City. City shall retain the authority to enter to inspect and to perform repairs and maintenance as City deems necessary of the Stadium during the term of this Agreement and may make such changes and alterations therein, and in the grounds surrounding same, as may be determined by City. City shall provide Licensee with reasonable notice prior to City's making any change or alteration in the Stadium and appurtenances, and City shall consult with Licensee in connection with the timing of such change and alterations provided, however, that the final decision as to timing shall be in the sole discretion of City. City shall have the fight during the term of this Agreement after notice and consultation is provided above to make changes, alterations and improvements in the premises, and to the buildings and facilities located thereon, as it may determine. City will endeavor to schedule any work contemplated herein so as to not disrupt any scheduled events. 23. Conclusion of Performance. All performances shall end no later than 11:00 P.M. unless othenvise approved by the City. 24. Flooring for Stadium. The City shall provide, at Licensees' option, up to 10,000 square feet of temporary flooring for the Event. Licensee shall be responsible for paying all costs up to and not to exceed three thousand five hundred dollars CLIS$3,500) for installation of the initial 10,000 square feet of flooring. The City shall be responsible for the actual installation of the floor. If more than 10,000 square feet of flooring is required by Licensee, then Licensee shall pay all costs involved in obtaining such additional flooring and for all costs of installation of the additional flooring. 25. Notice of Defects. Licensee shall report safety deficiencies or any defects it notices on the premises immediately to City's Risk Manager and the City's designee and shall cooperate fully with City and its designee in the investigation of accidents incurring on the subject premises. 26. Indemnification. Licensee does hereby release and agree to indemnify, defend, save, and hold harmless the City, its designees, officers, agents and employees bom and against all claims, actions, causes of action, demand, judgments, costs, expenses, and all damages of every kind in nature incurred by or on behalf of any corporation, person, or governmental authority, whatsoever predicated upon injury or death of any person or loss over damaged property of whatsoever ownership, or copyright infringement arising out of or connected with, 11 directly or indirectly, Licensee's operation pursuant to the terms of this agreement, whether or not the incident giving rise to the injury, death, loss or damage occurs within or without the premises. Licensee shall indenmify, defend and hold harmless the City regarding its selection of Events and any persons or entities associated with those Events held at the Stadium. Licensee understands and is aware that there are certain indemnification provisions in some of the agreements referred to in Paragraph 3 in which the City has agreed to indemnify other parties. Licensee agrees to defend, indemnify and hold harmless the City regarding those indemnification provisions. Licensee further agrees to pay the City for any property damage to the Stadium or other City property that occurs during the production of an Event or in a reasonable time before or after the event by Licensee. Licensee shall make such payment to the City within thirty (30) days of such written request by the City. 27. Release. Licensee acknowledges and agrees that City, its designee, officers, agents and employees assume no responsibility whatsoever for any property placed in the premises provided for herein and City, its designee, officers, agents and employees are expressly released and discharged from any and all liability for any loss, injury, damage, theft, vandalism or other wrongful acts or acts of any kind or nature resulting in damage or loss to persons or property which may sustained by Licensee's use of the premises. Licensee further expressly waives any and all claims for compensation for any and all loss or damages sustained by reason of any defects, deficiencies, or impairment of the electrical or sound equipment, water supply, equipment or wires furnished for the premises or by reason of any loss or impairment of light, current, or water supply which may occur from time to time for any cause, or by reason of any loss or damage sustained by Licensee resulting from fire, water, hurricane, tornado, civil commotion, riot, theft or other acts of God, and Licensee hereby expressly waives all right, claims and demands and forever releases and discharges City, its designee, officers, agents and employees from any and all demands, claims, actions and causes of actions arising from any of the causes aforesaid. 28. Taxes. Licensee shall pay any and all taxes levied on the property by reason of Licensee's use thereof pursuant to the provisions of this Agreement and on any personal property 12 and improvements belonging to License located on the premises and all applicable sales, use, rental and other taxes which may be levied against its operation. 29. License~ Fees. (a) Licensee shall pay to the City all costs or estimated costs as provided in this Agreement. Licensee shall pay these costs to the City at least 72 hours prior to the start of the Event. If Licensee fails to pay the required amount within the stated time period, the City may, at its sole discretion, terminate this Agreement or reduce the funds due Licensee from the Ticketmaster sales in the same amount due the City. (b) Licensee shall pay for all police and fire personnel provided by the City for the Event. The City shall provide an estimate of the cost to Licensee and Licensee shall pay the total estimated cost to the City at least 72 hours prior to the start of the Event. Within 5 business days of receiving the final bill from the City for such services Licensee shall pay any remaining balance to the City or the City shall refund any amount that was paid over the final cost. If Licensee fails to pay the required amount within the stated time period, the City may, at its sole discretion, terminate this Agreement or reduce the fimds due Licensee from the Ticketmaster sales in the same amount due the City. (c) During the first year of the Agreement Licensee shall not be charged any facility fee. During the second year of the Agreement Licensee shall pay to the City a facility fee of one dollar ($1.00) per ticket for all Events held that year. During the third year of the Agreement Licensee shall pay to the City a facility fee of one and one half dollars ($1.50) per ticket. Such payments shall be due to the City within thirty (30) days of the conclusion of the Event. If Licensee fails to make such payments, the City, in its sole discretion, may terminate this Agreement or seek other legal recourse. 30. Stadium Capacity and Complimentary Tickets. Licensee shall not admit to the Stadium a larger number of persons than the approved capacity it will safely accommodate. City shall receive twenty (20) admission tickets at no charge. 31. Advertising Revenue. Licensee shall be entitled to retain all advertising and sponsorship revenues generated by advertisers or sponsors of the Event promoted by Licensee at the Stadium; provided, however that the City and its designee, jointly with Licensee, shall have the fight to approve all advertising and its location. 13 32. Failure to Pay. Other than the payments referred to in Paragraph 29 which are to be paid as provided in Paragraph 29, if Licensee neglects to make any other payments to City within ten (10) business days after the day on which the payment is due and owing, Licensee shall pay to City for such privilege, an additional charge of Twenty-Five ($25.00) Dollars per day for each day's delay in payment, retroactive to and beginning with the first day of the delinquency or the City may assess interest at 12% whichever is greater. City's right to assess the penalties for payment made later than the day upon which payment is due and to keep all deposits in the event of cancellation, shall be in addition to its right to terminate the license and its rights to seek all other damages and compensation as permitted by law, upon written notice. 33. Accounting and Right to Audit. Licensee shall provide a complete accounting of all revenues that the City has rights to receive a portion of, in conjunction with the Event, in accordance with generally accepted accounting principals, when payment is tendered to the City. City shall have the right to audit and review Licensee's financial records as they relate to or pertain to the Event. 34. Waiver of Breach. Neither the waiver by City or its designee of any breach of the Agreement, condition or provision of this Agreement or the failure of City or its designee to seek redress for violation of or to insist upon strict performance of, any agreement, condition or provision, shall be considered a waiver of the Agreement, condition or provision, or any subsequent breach of any Agreement, condition or provision. The waiver of any portion of this Agreement for a portion of the term of the Agreement (i.e. waiving the 5 Event or 15,000 ticket requirement for one annual term) shall not be deemed to extend for the entire term of the Agreement. No provision of this Agreement may be waived except by written agreement signed by the City and Licensee. 35. Security Deposit. Licensee shall deposit with the City, upon the effective date of this Agreement, security in the amount of Fifty Thousand ($50,000.00) Dollars. The security shall be in cash or a certified or cashier's check payable to City or a bond executed by a surety or sureties approved by City, naming Licensee as principal and City as obligee. The security shall be conditioned upon the faithful performance by Licensee of all of the terms of this Agreement and may be also utilized to refund ticket sales for Events which do not occur, and for which Licensee has not refunded ticket prices within thirty (30) calendar days from the date of the 14 originally scheduled Event, and such portion as may be due shall be returned to Licensee only upon the satisfactory performance of each and every obligation set forth herein after termination of this Agreement. If such security is not received 30 days after the execution of this Agreement, the City, in its sole discretion, may terminate this Agreement. 36. Controlling Law. This agreement shall be deemed to be made and shall be in accordance with the laws of the State of Florida which will be controlling in any dispute that arises pursuant to this Agreement. 37. Entire Agreement. This Agreement constitutes the entire agreement between City and Licensee and may not be altered, amended, or modified except by an instrument in writing signed by the parties to the agreement with all the same formalities as this agreement. 38. Force Maieure~ Strikes and Unavoidable Causes. City shall not be responsible for its failure to make the premises available or to provide the facilities and services described herein, where such performance is rendered impossible and impractical due to strikes, walk-outs, acts of God, inability to obtain labor, materials or services, government restriction (other than City), enemy action, civil commotion, fire, unavoidable casualty, utility disruptions or blackouts, or similar causes or any other causes beyond the control of City. 39. Sublieense and Assignment. Licensee shall not sublicense the subject premises or any part thereof or allow the same to be used or occupied by any person or for any other use than that herein specified, nor assign said Agreement nor transfer, assign or in any manner convey any o£the rights or privileges herein granted without the written consent of City. Neither this Agreement nor the rights herein granted shall be assignable or transferable by any process or proceeding in any court, or by attachment, execution, proceedings, insolvency, or bankruptcy either voluntary or involuntary or receivership proceedings. 40. Notice. Any notice or communication under this agreement shall be in writing and may be given by registered or certified mail. If given by registered or certified mail, the notice or communication shall be deemed to have been given and received when deposited in the United States Mail, properly addressed, with postage prepaid. If given otherwise, than by registered or certified mail, it should be deemed to have been given when delivered to and 15 received by the party to whom it is addressed. The notices and communication shall be given to the particular parties at the following addresses: City: David Harden, City Manager City of Delray Beach 100 N.W. 1st Avenue Delray Beach, Florida 33444 Licensee: Either party may at any time by giving ten (10) days written notice designate any other person or entity or any other address in substitution of the foregoing to which the notice or communication shall be given. 41. City's Name/Logo The City shall have its name/logo included in all print, radio, and television advertising created by Licensee to promote the Event. The City name/logo shall not be used in any context that is not family oriented. 42. Subtitles and Captions. Paragraph headings are for reference purposes only and in the event that such paragraph headings conflict with any of the substantive paragraphs of this Agreement, the paragraph headings shall be disregarded. 43. Bond Limitations. (a) It is recognized by Licensee that the Stadium has been financed with proceeds of tax exempt debt and may be re-financed from time to time in the future and that the Internal Revenue Code of 1986, as amended, limits the private use of governmentally owned facilities constructed with tax exempt debt, such as a tennis stadium, in order to maintain the tax exempt status of the debt issued to finance the same. (b) Notwithstanding any other provision of this Agreement to the contrary, this Agreement shall automatically terminate, without any required notice by the City, if any payment required to be made under the provisions of this Agreement to the City would, together with any other private use payments made or required to be made by any other entity(ies) or person(s) for the use of the tennis center or related facilities, adversely affect the exclusion from gross income 16 for federal income tax purposes on any interest obligation (herein "negative tax consequences") of the City issued to finance or refinance the tennis center or any part thereof. Such a termination shall not constitute a default on the part of either party to this Agreement. Upon such termination, it is the intent of the parties hereto to enter into a new agreement which would contain different or modified payment terms and/or amounts acceptable to both of the parties hereto, and which, in the opinion of the City's bond counsel, would not have negative tax consequences. 44. Termination or Cancellation of Agreement. This Agreement may be terminated by the City if one of the following occurs: (a) Institution of proceedings in voluntary bankruptcy by the Licensee. (b) Institution of proceedings in involuntary bankruptcy against the Licensee if such proceedings lead to adjudication of bankruptcy and the Licensee fails within ninety (90) days to have such adjudication reversed. (c) If Licensee shall fail, neglect or refuse within fifteen (15) calendar days after receiving notice thereof fi.om City to conform to any direction or instruction that may be properly given by City or to any applicable law, ordinance or regulation of the City, County State, or Federal government, or shall fail, neglect or refuse to pay any amount due hereunder within thirty (30) calendar days after the same shall become due or shall default in the performance of any of the material terms or provisions herein required, it shall then be lawful for City, at its option, to declare this Agreement terminated and forfeited and City may, in addition to other remedies available to City, thereupon re-enter and possess itself of all the rights and privileges therefore enjoyed by Licensee, and in the event that Licensee shall remain in possession one (1) day or more after such termination or forfeiture, Licensee shall be deemed guilty of a forcible trespass. (d) If Licensee fails to provide 5 Events during each year of this Agreement or if Licensee fails to sell a minimum of 15,000 tickets during each year of this Agreement, the City, in its sole discretion, may terminate this Agreement. 45. City's Designee. For the purpose of this Agreement, the City's designee shall be JCD Sports Group, Inc. or its designee, unless the City notifies Licensee to the contrary. 46. This Agreement is not effective until signed by both parties. 17 IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed by their proper officials on the day and year first above written. ATTEST: By: City Clerk Approved as to Form: By: City Attorney CITY OF DELRAY BEACH, FLORIDA By:. Jeff Perlman, Mayor WITNESSES: (Name printed or typed) (Name printed or typed) WORLDWIDE ENTERTAINMENT, INC. By:. (Name primed or typed) Fein No. STATE OF COUNTY OF The foregoing instrument was acknowledged before me this __ day of ., 200__, by , as (name of officer or agent, title of officer or agent), of (name of corporation acknowledging), a (state or place of incorporation) corporation, on behalf of the corporation. He/She is personally known to me or has produced (type of identification) as identification. Signature of Person Taking Acknowledgment Name Typed, Primed or Stamped 18 1. International Tennis Tournament - August 30-September 23, 2004 2. Chris Evert/Pm Celebrity Tennis Classic - Deeember 6-7, 2003 (5 days prior to and 3 days at, er event) 3. First Night - Deceanber 3 l~t (1 days prior to and 2 days a~er event) 4. Annual Bed Race - March 5-6, 2004 (2 days) 5. St. Palrick's Day Parade - March 13, 2004 (1 day) 6. Delray Affair- (3 days) 1 st weekend after Easter 7. Hot Air Balloon Race- May 21-23, 2004 (3 days) 8. 4a~ of July- (2 days before end 2 days a.Rer) 9. Roots Cultural Festival - August (2nd weekend) (3 days) 10. Garlic Festival - November 7-9, 2003 (3 days) end November 12-14, 2004 (3 days) 11. Christm,~ Tree Lighting/Crai~ Show - Th~m~iving weekend (4 days) 12. Holiday Parade- December 13, 2003 and December 11, 2004 (not the weekend) (3 days) 13. Art and Sazz on the Avenue - 5 dates per year Thursday Sanuary 29~, May 13~, Sune 24~, October 21~, December 9~ (2004) 14. Christm~ Eve and Christmas Day (2 days) MEMORANDUM TO: FROM: SUBJECT: DATE: MAYOR AND CITY COMMISSIONERS CITY MANAGER~ AGENDA ITEM # ~ ~ -REGULAR MEETING OF NOVEMBER 18. 2003 AGREEMENT/VI!.!.&GE FOUNDATION NOVEMBER 14, 2003 This is before the Commission to approve an agreement between the City of Delray Beach Parks and Recreation Department and the Village Foundation. The agreement provides for a partnership regarding teen programming at Pompey Park with funding in the amount of $52,130.00. The program will consist of academic enrichment, cultural activities, sports, and recreation activities. Attached, please find a projection by the Vilhge Foundation on how the $52,130.00 will be spent and objectives for the 2003-2004 program. Funding is available from 001-4127-572-83.01 (Parks & Recreation/C.S. Pompey Recreation Facility/Other Grants & Aids). Recommend approval of the agreement with the Village Foundation for teen programming at Pompey Park. ~\City Clerk\a~nda m\Ag~am~ent Village Foundation. l 1.18.03 rITY OF OELAIW BE#tH DELKAY BEACH AII-Americ~City 1993 100 N.W. lstAVENUE DELRAY BEACH, FLORIDA 33444.561/243-7000 MEMORANDUM TO: David Harden City Manager FROM: Joe Weldon Director of Parks and Recreation SUBJECT: Village Foundation Agreement DATE: November 6, 2003 Attached please find an agreement between the Parks and Recreation Department and the Village Foundation to provide for academic, recreational, and cultural programming for teenagers at Pompey Park in the amount of $52,130. These funds were budgeted in our operating budget in account #001-4127-572-83.01. Also attached is a projection by the Village Foundation on how the $52,130 will be spent and objectives for the program for 2003 - 2004. As you may recall, $23,000 was funded last year with a similar agreement with the Village Foundation. Attached please find an annual report summarizing the program's activities and the attainment of specified objectives. Please place this on the November 18, 2003 agenda for City Commission consideration. Jo&~ldon Director of Parks and Recreation Attachments cc: Carolanne Kucmerowski Agenda Coordinator Ref:vfannrpt THE EFFORT ALWAYS MATTERS [ITY I)F DELRrI¥ BE;IgH CiTY ATTORNEY'S OFFICE 200 NW 1st AVENUE · DELRAY BEACH, FLORIDA 33444 TELEPHONE 561/243-7090 · FACSIMILE 561/278-4755 DELRAY BEACH DATE: TO: FROM: Wdter's Direct Line: 561/243-7090 MEMORANDUM October 23, 2003 Joe Weldon, Director of Parks and Recreation Terrill Pyburn, Assistant City Attorney ~ SUBJECT: Revised Village Foundation A.qreement Attached please find three (3) revised, original copies of the Funding Agreement between the City and the Village Foundation. Thank you. If you have any questions, please call. TCP:smk Attachment RECEIVED OCT 2 4 ,.~3 FUNDING AGREEMENT BETWEEN THE CITY OF DELRAY BEACH AND THE VILLAGE FOUNDATION THIS AGREEMENT is made this day of ,2003, by and between the CITY DELRAY BEACH (City), and the VILLAGE FOUNDATION. WITNESSETH: WHEREAS, providing academic, recreation, and social development activities for teenage youth in the community is essential to maintain a safe community within the City of Delray Beach; and WHEREAS, the parties desire to work to further the development and education of teenage youth within the City in a more cohesive, collaborative and streamlined manner; and WHEREAS, the City and the Village Foundation desire to participate together in funding the personnel and supply costs associated with providing academic, recreational and social development activities for teenage youth within the City of Delray Beach. NOW, THEREFORE, in consideration of the premises and covenants herein contained, the parties agree as follows: Recitations. The recitations set forth above are incorporated as if fully set forth herein. 2. Position. The Village Foundation and the City desire to provide academic, recreational, and social development activities for teenage youth at Pompey Park. 3. Duties and Responsibilities. The duties and responsibilities of the Village Foundation shall be to plan, organize, implement and direct the academic, recreational and social development activities for teenage youth at Pompey Park by providing: (a) Academic enrichment activities, (b) Cultural activities, and (c) Recreational and sports activities. In addition, the Village Foundation shall also be responsible for providing the City with an annual report summarizing the Program's activities as well as the attainment of specified objectives. 4. Payment to be made Towards Funding the Personnel and Supply Costs. The City shall pay to the Village Foundation Fifty-Two Thousand One Hundred Thirty Dollars ($52,130.00) in a lump sum amount by no later than January 15, 2004. This money shall be used for teen programming during the 2003-04 fiscal year and the City shall have the right to audit any part of this program at any time in order to ensure that the money is being used for the purposes provided for in this Agreement. 5. Term of A.qreement. This Agreement shall be for a one year period commencing October 1, 2003 and ending September 30, 2004, however, the City shall have the right to cancel this Agreement at any time by providing ten (10) days advanced written notice to the Village Foundation. 6. Entire Agreement. No prior or present agreements or representation with regard to any subject matter contained within this Agreement shall be binding on any 2 party unless included expressly in this Agreement. Any modification to this Agreement shall be in writing and executed by the parties. 7. Severability. The validity of any portion, article, paragraph, provision, clause, or any portion thereof of this Agreement shall have no force and effect upon the validity of any other part of portion hereof. 8. Governin.q Laws; Venue. accordance with the Laws of Florida. This Agreement shall be governed by and in The venue for any action arising from this Agreement shall lie in Palm Beach County, Florida. 9. Assi.qnability. Neither the City nor the Village Foundation shall assign or transfer any rights or interest in this Agreement. 10. Validity of Agreement. This Agreement shall not be valid until signed by the Mayor and the City Clerk of the City of Delray Beach and the Chairman of the Village Foundation. ATTEST: City Clerk Approved as to Form: City Attorney ATTEST: CITY OF DELRAY BEACH, FLORIDA By: Jeff Perlman, Mayor (SEAL) VILLAGE FOUNDATION By: Joe Gray, Chief Executive Director STATE OF FLORIDA COUNTY OF PALM BEACH The foregoing instrument was acknowledged , 2003 by of on behalf of the corporation. before me this __ day of as corporation, He/She is personally known to me or has produced as identification. Notary Public - State of Florida 4 - ~ m ~ ~ ~ z ~ ~ ~ -z r~-o~ ~ o ~ 0 0 ~ ~0~ ~00 ~ CO~ ~ ~~ 0 O0 0~ ~ ~ 0 _ Teen Program Annual Summary October' 02- July ' 03 FAU ILeadershiD Proeram} The Toppel Foundation approached FAU with a proposal to establish a Leadership Academy on the Boca Raton campus for the purpose of encouraging the development of leadership skills in African-American teenagers from the Delray Beach area who have already begun to emerge as positive role models for the younger children in the community. The plan was to bring the students to the Boca campus once a month to acquaint them with the college life, opportunities for them to convei-se with the University and community leaders, and create an open forum. The sessions took place on Friday afreruoons, from 4-6pm. The Colleges that the students attended took place on FAU campus are as follows: ~" College of Education ~- Dorothy F. Schmidt College of Arts and Letters ~- Charles E. Schmidt College of Science ~- College of Architecture, Urban and Public Affairs * College of Business ~- College of Engineering Participant (High School) 12-18 Sessions Attended- 6 High School Urban Dance This is a cultural activity that provides students the opportunity to participate in activities that aim to broaden their exposure and assist in developing various life experiences. The Urban Dance is a team that basically incorporated stepping in their routines. The basic definition of stepping is a moderu form of African dance, but you really can't limit it to that, because it has a whole lot of other elements to it as well. Stepping incorporates cheerleading, military and drill-team moves especially the call-and-response element inherent in those forms. That aspect is not only important to the energy of stepping, but to the cultural history to which stepping provides a link. Urban dance practice at Pompey Park on varies days of the week and outside of Pompey sometime on the weekend due to performances. Practices for the year- l l 4 Performances for the year- 30 Participants- 18-24 Middle School Urban Dance {same as above) Practices for the year-98 Performances for the year- 23 Pardcipants- 18-28 Boys Basketball (Delray Blazers) Travel Session for most teams start in January Competitive sports activities that provide students with the opportunity to participate and challenge their physical and mental capacities. In these activities students have the opportunity to participate in local and out of town leagues, travel throughout the state to compete in tournaments, and become exposed to other sports activities typically not emphasized in urban neighborhoods. Students registering must attend a one-hour educational workshop. Workshops include information on behavior, violence, conflict resolution and academic improvement. Our travel league has been a success with our coaches as mentors and following players, helping students make positive decisions. Our teams practice at Pompey Park and Delray Full Service Center during this year and needed additional sites do to the growth of the program. Teams PlaFers Practices Games 11/under 13 51 29 13/under 9 38 18 14/under 13 33 11 (different league) 15/under 11 48 22 16/under 13 25 31 17/under 15 19 6 (This was due to having seniors) Tee· Pro,,ram also had other activities: · Tutorial program with C.L.A.S.S. at DFSC. This is an academic enrichment program to provide students with the opportunity to complete their homework and obtain academic assistance from certified middle and high school teachers. The program collaborated with CL.A.S.S. due to the lack of funds that the teen program had in a budget. It started with 2 C.L.A.S.S. teachers coming to Pompey to tutorial the teens and then because of the budget moved back to the Delray Full Service Center where C.L.A.S.S. program is located. Monthly teen dances at Pompey with the assistant of City Parks and Recreation. This is an activity that started in 2003 for students to have a structured fun time activity together after a community football game. The dances have become such a success for the teens and for the program that we decided to due a continuation to give our young students something to do along with somewhere to go. When we do not have somewhere for them to go they get into trouble and try to participate in activities that adults participate in. The dances are twice a month at Pompey Park. U Hosted High School Step Show January and Middle and High Show Urban Dance has become a popular group that gives spectators/community what they want. This is our first year having a step competition. This competition had many participate teams from Ft. Pierce to Ft. Lauderdale. The show in January at Boynton High was about 1000 spectators to watch the show and it was a success and a family event. For the show in May at Pompey Park we had about 1300 spectators and also was a family event. At this show the community came out to support the entire urban dance groups it was a success. · Hosted a statewide basketball tournament at 7 sites and 49 teams attended. This event was our 1~t YBOA Annual Basketball Tournament with 49 teams that came from all over the state of Florida. Such as: Tampa, Orlando, Jacksonville, Tallahassee, Miami, and Ft. Lauderdale. The 7 sites was a great help for this event such as DFSC, Pompey Park, Community Center, Carver Middle, Spanish River, Lake Worth High and Lake Worth Community Center. Putting together an event like this takes a lot along with reserving hotels and restaurant for parents of the player. This event brought over 2000 people to the Delray Beach area it was a success. Attend teen summits Tnmpa and Miami. This activity was for participate that are in the program and at the summit they attend interaction with each other and learn about peers, diseases, and relationships. The youth of Delray face unique and difficult life challenges. The fact that we find among Delray's young people high rates of substance abuse; and juvenile justice cases and that so few of our high school graduates go on to college or job training is evidence that these young people face many hurdles, some seemingly insurmountable. N0¥-06-200~ 0~:~? FROM-VILLAGEFOUHDATION +5612797606 T-0dl P.902/00~ F-HT Village Foundation/MAD DADS Teen Program Program Outcomes jObjectives 20 Z-20031 Qb~eedve 1; 75% of'the enrolled part/cipants will attend the program on a daisy basis, ar l~ast 75% of the time, through May 31, 2003, 50 % of the participants will demou~h,~t~ a 3% improve~em of math sldlis as evidenced by a comparison of 2002 and 2003 standardized achi~vemem test scores through May 3l, 2003. Obiectlve 3: 50% or'the participants will demonstrate a 3% improvement of reading skills as evidenced by a comparison of 2002 and 2003 standardized achievement test scores through May 31, 2003, Qb]ective 4: 75% of the participates who have received discipline referrals will show a decrease in referrals by May 31, 2003. utcomes 2002-Z005! Outcome 1: ~ 75% of the earolled partidpants attended the pro.am ca dally activ/ty basis, at leas: 75% of the t/me, Outcorn~ 2: > 45% of the participants demonstrated a 3% improvement &math skills as evidence by a comparison of thc 2002 and 2003 standardized achievement ~est scores and attcad C,L.A,S.S. tutorial program through May 31, 2003, 40% of the participants wiU demonstrate a 3% improvement of reading skills as evidenced by a comparison of'2002 and 2003 standardized achievement test scores and attend C.L.A.$.S. tutorial program through May 31, 2003. Outcome 4: ,~ 90% oflhe participants who has received discipline re/crrais have shown decreased in referrals '&rough May 3 I, 2003, Objectives ZOO3-ZOO4J · S5% of thc enrolled participants will attend the program on a daily basis, ar least 75% of thc time, through May 31, 2004. · 50% of the panklpants will demonstrate a 3% improv~nent of math skills as evidence by a comparison of 2003 and 2004 standardized achie~ment test 'd~rough h~y 31, 2004, · 50% of the participants will demonstrate a 3% improvemeut of reading skills as evidcnoed by a comparisOn of 2003 and 2004 standard/zed aoh/evement test scores through May 31, 2004. Obiecdee 4: ~ 90% of thc participants who have received discipline refexrals will show a decrease in r~enals by May 3 I, 2004. Obieetive $: · 75% of participant paxems will play an active role in participant activities to have a auccessful participation rate through May 3 l, 2004. Obi~ed~ 6.' · 50% o£ttm ~trolled panklpants in the life skills/sOcial dev~lopmant program will attend the activity on a daily basis, at least 50% of the time, through May 31, 2004 wi~ 75% of'improvement to broaden their exposure. Date: Nov. 4, 2003 AGENDA ITEM NUMBER:_i~L_~ AGENDA REQUEST Request to be placed on: Consent Agenda x Regular Agenda Workshop Agenda Special Agenda Vfnen: Nov. 18, 2003 Description of Agenda Item (who, what, where, how much): Request approval of agreement with Village Foundation in partnership with the Parks and Recreation Department for teen programming at Pompey Park in the amount of $52,130 to be funded out of account #001-4127-572-83.01. Department Head~ Si. gnature: C,ty Attorney Revi~w/Recom_mendation (if applicable): Budget Director Review (require~on all items involving expenditure of funds): Funding Avaflable~' Yes! No Imtials: _ __ ' Account Number Account Funding ~ternatives: f~/~ (~ apphcable) City Manager Review: Approved for Agenda: ~'~/No Initials: Hold Until: ~ ~f~_~ Agenda Coordinator Review: Received: MEMORANDUM TO: MAYOR AND CITY COMMISSIONERS FROM: ~ITY MANAGER SUBJECT: AGENDA ITEM # ~ {~-REGULAR MEETING OF NOVEMBER 18. 2003 UTILITY AGREEMENT/CITY CENTER DEVELOPMENT, L,L,C, DATE: NOVEMBER 14, 2003 This is before the Commission to approve a utility agreement between the City and City Center Development, L.L.C., developers of Ocean City Lofts, in the amount of $59,970.00 for the instull~tion of utility improvements (sanitary sewer, drainage, and reclaimed water) on N.E. 4~h Avenue. The City has agreed to reimburse the developer for the utility improvements on N.E. 4* Avenue that abut the proposed development. The development conditions include the developer paying the cost of the other improvements within the N.E. 4t~ Avenue corridor. Funding is available from 441-5181-536-65.96 (Reclaimed Water Transmission), 442-5178-536-63.51 (Sanitary Sewer Upgrades), and 448-5461-538-65.81 (N.E. 4m Avenue). Recommend approval of the utility agreement with City Center Development, L.L.C. for installation of utility improvements (sanitary sewer, drainage, and reclaimed water) on N.E. 4th Avenue. S:\City Clerk\agenda memm\~t.U tility. Ocean City Lo~.l 1.1 &03 City Of Delray Beach Department of Environmental Services M E M 0 R A N D U M TO: FROM: DATE: SUBJECT: David T. Harden, City Manager Randal L. Krejcarek, P E 12 Nov 2003 Ocean City Lofts Utility Improvement Agreement Commission Agenda The attached agenda request is for Commission approval/authorization for Mayor to execute an agreement with City Center Development, LLC, developers of Ocean City Lofts located in the 100 Block of NE 4th Avenue. This agreement is for the installation of utility improvements (sanitary sewer, drainage and reclaimed water) on NE 4th Avenue. The City has agreed to reimburse the developer for the utility improvements in NE 4th Avenue that abut the proposed development. The development conditions include the developer paying the cost of the other improvements within the NE 4th Avenue corridor. The estimated cost for the utility improvements included in the agreement is $59,970.00. Exhibit A of the agreement is the site location map. The agreement is subject to review and approval by the City Attorney. If this meets with your approval, please place it on the 18 Nov 2003 Commission Agenda for approval. Thanks! enc cc TAC file S:~EngAdmin~TAC~Ocean City Lofls~2003 nov 18 agenda memo.doc R. Brian Shutt, Esq. City Attorney's Office 200 N.W. 1~t Avenue Dekay Beach, Florida 33 ~. n. ~. DP&El:, AGREEMENT THIS AGREEMENT entered into tbAs dayof .,2003, by and between the CITY OF DELRAY BEACH, a Florida municipal corporation, (hereina~er referred to aa CITY) and CITY CENTER DEVELOPMENT, LLC, a Delaware limited liability company (hereinatler referred to aa DEVELOPER), to provide aa follows: WHEREAS, DEVELOPER, is developing the property referred to aa "Ocean City Lolls", as more particularly shown on Exhibit "A'', attached hereto and incorporated herein (the "Development");' WI:IEREAS, the CITY is requesting that DEVELOPERmake certain offsite improvements to the underground infraatmcture (the "Offsite Improvements"). NOW, THEREFORE, in consideration of the mutual covenants and undemkings set forth hcxein, the DEVELOPER and CITY hereby agree as follows: 1. The above-stated recitals are incorporated herein aa if fully set forth herein. 2. The DEVELOPER shall construct the Offsite Improvements aa described and detailed in Exhibit "B" attached hereto and incorporated herein. 3. The CITY shall paythe DEVELOPERthe amount of Dollars ($ ) upon the completion of the work aa det,J mined by the CITY (the "Construction Amount''). However, if requested by DEVELOPER, the CITY shall make a payment to the DEVELOPER once fifty percent (50~l~o~as~l~ll[ above has been completed and accepted by the CITY.V~I~''-~ ~ ~ 4. The Offsite lm~nrovemeaats must be completed, flnali?ed and accepted by the C1TY withi~ ( ) days of the execution of this Agreement. The CITY shall have any remedy available to it in law or equitywith respect to completion, finalization and acceptance of the Ol~ite Improvements. 5. AIl restorations ofthe area affected bythe Offsite Improvement shall be the responsibility of the I)EVELOPER. The restorations shall be performed in accordance with the DEVELOPER'S approved engineering plans which are described and detailed in Exhibit KB" attached hereto and incorporated herein. 6. I)EVELOPER shall pay all sales, consumer, use and other similar taxes requiredto be paid in accordance with the laws, ordinances and applicable to the place ofte Development which are applicable during the performance of the work. 7. DEVELOPER warrants and guarantees to the CITY that all work on the Offsite Improvements shall be constructed in accordance with the applicable codas of the City of DelrayBeach. The I)EVELO PER'$ warranty and guat~tee shall remain in effect for one ( 1 ) year from the date of final acceptance by the CITY. Unremedied defects identified for correction during the warranty/guarantee pcxiod but remaining atter its expiration shall be considered as part of the obligations of the guarantee and warranty. Defects in the installal/en or construction of the Offsite Improvements, which are remedied as a result of obligations of the warranty/guarantee shall subject the remedied portion of the work to an extended warranty/guarantee period o fone ( 1 ) year aider the defect has been medied. DEVELOPER shall deliver this Agreement to a Surety of its choice. The Surety shall be bound with and for the DEVELOPERin the DEVELOPER'S faithfifl observance of the guarantee to an amount equal to ten percent (10%) of the Construction Amount. DRA~ 8. DEVELOPER, shall supervise and direct the installation and construction of the Offsite Improvements, applying such skills and expertise as may be necessaryto perform the work in accordance with the approved engineering plans. DEVELOPER shall be solelyresponsible for the means, methods, techniques, sequences and procedures of the construction and installation of the Offsite Improvements. 9. Any claim,% lawsuits or disputes that may arise under this Agreement shall be governed by the I~ws of Florida, with venue in palm Beach County, Florida. 10. This Agreement constitutes the entire agreement and understanding of the parties, as it pemins to the construction or installation ofwater, sewer, drainage and madwayimprovements. There are no representations or understandings of any kind not set forth herein. Any amendments to this Agreement must be in writing and executed by both parties. 11. DEVELOPER, in consideration ofthe payment ofTen Dollars ($10.00), receipt ofwhich is hereby acknowledged, agrees to indemnify, ho ld harmless and defend the CITY, its employees, agents and officers from and against any and all damage, loss, of whatever kind, arising from the construction or installation of the Offsite Improvements, including but not limited to reasonable attorneys' fees and costs at the trial and appellate levels. 12. DEVELOPER or its contractor shall maintain workers' compensation insuranco in an amount required by law and general liability insurance in the amount o fFive Hundred Thousand Dollars ($500,000.00) governing bodily injury and property damage in standard form, imm'ing CITY as additional named insured. 13. It is the intent ofthe parties that this Agreement shall mn with the lend. This Agreement shall be recorded in the public records of Palm Beach County, Florida end sh all be binding on the parties legal representatives, heirs successors end assigns. IN WITNESS WHEREOF, the parties hereto have entered into this Agreement as of the day end year first above written. ATTEST: City Clerk Approved as to Form: City Attorney WITNESSES: (Name Printed or Typed) Mayor, SeffPerlmen CITY CENTER DEVELOPMENT, LLC B~ Its: Menager (Name Printed or Typed) STATE OF COUNTY OF The foregoing instrument was acknowledged before me this dayof , 200__, by , as (name of officer or agent, title of officer or agent), of (name of corporation acknowledging), a (state or place of incorporation) corporation, on behalf of the corporation. He/She is personally known to me or has produced (type of identification) as identification. Signature of Notary Public EXHIBIT A 2ND N.E. 1ST ST. AVENUE DATE:8/20/03 1 OF1 OCEAN CITY LOFTS ENVIRONMENTAL SERVICES DEPAR'[]vENT LOCATION MAP EXHIBIT B EOADWAY ITE~ 2 18" RCP 290 L.F. $ 30,00 S 8~700.00 7 NPDES Complian~ I L.S. S 3~000.00 $ 3~000.00 T~al ~se Bid $ 30,470.00 REUSE WATER ~AIN ITEMS 8 16" D.I.P. Reuse Line W.M. 339 L.F. $ 30.00 ~$ 10,170.00 10 16" GateVaNe ~th Valve Box & E~enaon (W.M.) I ~. $ 2,000.00 $ 2~000.00 11 Firing (W.M.) 0.0¢ TN $ 3,500.00 $ SANITAEY S~ER ITEMS 26 Remove exist. 8" PVC S.S. 317 L.F. $ 3.00 $ 951.00 27 Const. 8" PVC S.S. 317 ~ L.F. $ 20.00 $ 6~0.00 I I I NOTE; THE UNIT PRICES ~SED IN THIS COST ESTIMATE ARE ESTIMA~S OF CURRENT COSTS BASED ON REC~NT ~IDS RECEIVED~ OR ON PAST BIDS ADJUSTED BY CURRENT PRICE IND~ES. THEIR ACCURACY IS A FUNCTION OF ECONOMIC CONDITIONS AT TH E TIME THE WORK IS ACTUALLY BID Lawson, Noble & Webb, Inc. 420 COLUMBIA DRIVE, S~ 110 ENRY W DE BEL. JR., PEi Date: 11 Nov 2003 Request to be placed on: AGENDA ITEM NUMBER:~--w AGENDA REQUEST X Consent Agenda Regular Agenda Workshop Agenda Special Agenda When: 18 Nov 2003 Description of Agenda Item (who, what, where, how much): Request for Commission approval/authorization for Mayor to execute an agreement with City Center Development, LLC, developers of Ocean City Lofts located in the 100 Block of NE 4th Avenue. This agreement is for the installation of utility improvements (sanitary sewer, drainage and reclaimed water) in the 100 Block of NE 4th Avenue. The estimated cost for these improvements $59,970.00. Staff Recommendation: Approval ,,~ .~ ,,~ Department Head Signature: City Attorney Review/Recommendation (if applicable): Budget Director Review (required on all items involving expenditure of funds): Funding Available~/ No Initials:(~f.~//? ~' /I/I;/~7 Account Number 441-5181.536-65.96, 442-5178-536-63.51, 448-5461-538-65.81 Description Reclaimed Water Transmission1 Sanitary Sewer Upgrades, NE 4th Ave Account Balance: ~1,.~,oo~ ....... ~v. $~4~-.740 (after transfer) Funding Alternatives: (if applicable) City Manager Review: Approved for Agenda:~/No Initials: Hold Until: Agenda Coordinator Review: Received: S:\EngAdmin\TAC\Ocean City Lofts\2003 nov 18 agenda.doc Date: 11 Nov 2003 AGENDA ITEM NUMBER: AGENDA REQUEST Funding Alternatives: City Manager Review: Approved for Agenda: Yes / No Initials: Hold Until: Agenda Coordinator Review: Received: S:\EngAdmin\TAC\Ocean City Lofts\2003 nov 18 agenda.doc (if applicable) Request to be placed on: X Consent Agenda Regular Agenda Workshop Agenda Special Agenda When: 18 Nov 2003 Description of Agenda Item (who, what, where, how much): Request for Commission approval/authorization for Mayor to execute an agreement with City Center Development, LLC, developers of Ocean City Lofts located in the 100 Block of NE 4th Avenue. This agreement is for the installation of utility improvements (sanitary sewer, drainage and reclaimed water) in the 100 Block of NE 4th Avenue. The estimated cost for these improvements $59,970.00. Staff Recommendation: Approval ~-~ . Department Head S~gnature: ~-~~ City Attorney Review/Recommendation (if applicable): Budget Director Review (required on all items involving expenditure of funds): Funding Available Y~/No Initials: Account Number 441-5181-536-65.96, 442-5178-536-63.51, 448-5461-538-65.81 Description Reclaimed Water Transmission, Sanitary Sewer Upgrades, NE 4th Ave Account Balance: ~,,u~,v9~, $500;000, ~ov, ~u (after transfer) Memorandum Community Improvement Horticulturist NI-/~edcaC~ 1993 2001 TO: THROUGH: FROM: RE: DATE: DAVID HARDEN CITY MANAGER LULA BUTLER, DIRECTOR, COMMUNITY IMPROVEMENT NANCY DAVILA ~_.~ LAKE IDA ROAD CHANGE ORDER # 2 NOVEMBER 6, 2003 ITEM BEFORE THE COMMISSION The item before the Commission is the approval of Change Order # 2 for Lake Ida Road Beautification resulting in a net decrease to the contract price of $43,426.16 with Reed Landscaping, Inc. BACKGROUND This change order is primarily a result of plant substitutions and irrigation changes in two major areas. Initially, the contract specified that Reed Landscaping would be responsible for the coordination, payment and installation of the water meters. It was simply easier for me to coordinate the meter installation. The line items for the meters have been deleted from Reed's contract, however, the funding for the meters still came out of the Lake Ida Road budget, so this is not a cost savings to the City. The original plans called for Washingtonia Palms, which due to lack of availability have been substituted with Sabal Palms. I have noticed that Washingtonias don't seem to fair well in our medians, so this substitution is not only a cost savings now, but will also be better in the long term. Other minor plant substitutions have resulted in a savings by substituting the Thatch Palms with Paurotis and European Fan Palms. A detailed list of changes is provided in Attachment A. RECOMMENDATION Staff, and the City's Consultant Debura Turner with Jerry Turner & Associates recommend the City Commission give favorable consideration to the proposed Change Order #2, resulting in a net decrease in the amount of $43,426.16 for the contract with Reed Landscaping, PO # 609037 for Lake Ida Road Beautification, Project # 2002-20 from $3357,601.52 to $314,175.36. CITY OF DELRAY BEACH CHANGE ORDER TO ORIGINAL CONTRACT CHANGE NO. 2 PROJECT TITLE: TO CONTRACTOR: PROJECT NO. 2002-020 DATE: October 30, 2003 Lake Ida Road Beautification - Congress Ave to Military Trail Reed Landscaping, Inc. 951 SW 121 Avenue, Ft. Lauderdale, Fl 33325-3807 (954)476-1426 YOU ARE HEREBY REQUESTED TO MAKE THE FOLLOWING CHANGES IN THE PLANS AND SPECIFICATIONS FOR THIS PROJECT AND TO PERFORM THE WORK ACCORDINGLY, SUBJECT TO ALL CONTRACT STIPULATIONS AND COVENANTS. JUSTIFICATION: Plus/minus quantity adjustments and changes per attached Schedule "A". Changes to irrigation system due to minor irrigation changes. Changes on plant materials due to problems with availability. Water meter fees removed from con~ract since City Staff coordinated the submittal of applications and installation fees. . SUMMARY OF CONTRACT AMOUNT ORIGINAL CONTRACT AMOUNT COST OF CONSTRUCTION CHANGES PREVIOUSLY ORDERED ADJUSTED CONTRACT AMOUNT PRIOR TO THIS CHANGE ORDER COST OF CONSTRUCTION CHANGES THIS ORDER ADJUSTED CONTRACT AMOUNT INCLUDING THIS CHANGE ORDER PER CENT DECREASE THIS CHANGE ORDER: 12.1% TOTAL PER CENT DECREASE TO DATE: 21.8% $ 382,845.88 $ - 25,244.36 $ 357,601.52 $ (43,426A6) $ 314,175..36 CERTIFIED STATEMENT: I hereby certify that the supporting cost data included is, in my considered opinion, accurate; that the prices quoted are fair and reasonable and in proper ratio to the cost of the original work contracted for under benefit of competitive bidding. TO BE FILLED OUT BY DEPARTMENT INITIATING CHANGE ORDER Funding Source: 1194151-572-63.20. This bid involved 3 different projects funding sources. Medians 6 & 7 are funded out of Keep Palm Beach County Beautiful Grant with 50% match from City. Medians 1,2,3,4,5,8 & 9 are funded from discretionary funding from County Commissioner, which will be reimbursed upon completion of the project. Please do not liquidate funds from these accounts until a final reconciliation has been done. Change Order # I Reed Landscaping Lake Ida Road Page I of 2 DELRAY BEACH, FLORIDA by its City Commission RECOMMEND: for Community Improvement APPROVED: City Attorney By: ATTEST: By: Mayor Jeffery Perlman City Clerk Change Order # I Reed Landscaping lake Ida Road Page 2 of 2 ATTACHMENT "A" Medians 1~2~3~4~5~8~ & 9 Delete 130 CY for bed prep on median # 9 as all soil will be removed and there is a separate line item $ 65.00 Delete 6 - 1" water meters ~ $1,940.96 $11,645.76 Delete 2 - 1 ½" hydrometer ~ $773 1,546.00 Delete 2 - 1 ½" PVB ~ $354 708.00 Delete I Toro 8 Station Controller 4,020.00 Delete 6 Oleander Tree ~ $170 1,020.00 Delete 4 Pigeon Plum @ $550.00 2,200.00 Delete 31 Washingtonia Palms ~ $525 16,275.00 Delete 14 Thatch Palms ~ $600 8,400.00 Subtotal Deletions Medians 1,2,3,4,5,8 & 9 ($45,879.76) Medians 1~2,3~4~5~8~ & 9 Add 6 Jatropha ~ $170 Add 4 Satin Leaf~ $550 Add 31 Sabal Palms ~ $150 Add 6 Paurotis Palms ~ $450 Add 4 European Fan Palms ~ $400 Subtotal Additions Medians 1,2,3,4,5,8, & 9 NET DEDUCTIONS MEDIANS 1,2,3,4,5, 8 & 9 $1,020.00 2,200.00 4,650.00 2,700.00 1,600.00 $12,170.00 ($33,709.76) ADDITIONS Median 6 & 7 Add 1- 1 ½ Hydrometer Add 1 - 1" PVB Add 6 European Fan Palms ~ $400 Add 4 Satin Leaf~ $550 Add 17 Sabal Palms ~ $150 Subtotal Additions for Medians 6 & 7 Medians 6 & 7 Delete 1 - 1" Water Meter Delete ~/4" Water Meter Delete 4 Pigeon Plum ~ $550 Delete 17 Wahingtonia Palms $ 525 Delete 6 Thatch Palm ~ $600 Subtotal DeletionsMedians 6 & 7 NET DEDUCTIONS MEDIANS 6 & 7 $ 773.00 314.56 2,400.00 2,200.00 2,550.00 $8,237.56 $ 1,940.96 1288.00 2,200.00 8,925.00 3,600.00 ($17,953.96) ($9,716.40) NET DEDUCTIONS MEDIANS 1,2,3,4,5,7,8, & 9 NET DEDUCTIONS MEDIANS 6 & 7 NET DEDUCTIONS Change Order # 2 PO # 609037 ($33,709.76) ($ 9,716.40) ($43,426.16) Median # Location O~ iginai Change Lake Ida Road Contract Order # 1 - Amount Deductions Medians 1,2,3,4,5,8 & 9 $290,664.72 ($17,534.36) Medians 6 & 7 $ 92,181.16 ($ 7,710.00) $382,845.88 ($25,244.36) JERRY TURNER/k ASSOCIATES OF FLORIDA,INC. September 26, 2003 Landscape Architecture Land Planning Environmental Design 277 S.E. 5~ Avenue Delray Beach, Florida 33483 Ms. Nancy Davila City of Delray Beach MEMO: LAKE IDA ROAD IRRIGATION The following is a summary of revisions made to irrigation plans after determination by city engineer that a 1' meter will only deliver 40gpm instead of 50gpm. Median Valves Main Line 1 no change 2 +1 - 1 ¼" valve 3 +1 - 1 ½" valve 4 +1 - I ½" valve 5 -1 - 1 ¼" valve + 2 - l" valve 6 +1 - I ¼' valve 7 no change 8 + I - I ¼" valve 9 no change no change + 30 If + 130 If + 135 if + 155 If + 140 If no change + 160 If (this change was made on 8/15/03) no change Total + 4 - 1 ¼" valves + 2 - 1" valves + 750 If In regards to additional time needed for changes 150 If of main line could easily be installed inl hour so I would recommend allowing 5 additional hours to their contract. Call if you have any questions. Sincerely, Debora Telephone: 561.276-0453 fax: 561.997-8667 e-mail: dkto~bellsoath~net Date: AGENDA ITEM NUMBER: ~ AGE NDA RE OUE ST Request to be placed on: __X Coment Agenda __ Regular Agenda __ Workshop Agenda_ __ When: 11/18/2003 Description of agenda item (who, what, where, how much): Approval of Change Order # 2 for Lake Ida Road Beautification $43,426.16 - Reed Landscaping Inc. SpecialAgenda Department He ad~_~.~J~ ...... ~ ~'~IxtU~o :mey ~T:7:h'~'a~l~,: Budget Director Review (required on all items involving expenditure of funds): Funding Available: (~ No Initials: ,~c ////&/uj AccountNttmber x~/q_~\ ~1-5"~-b~ ,,ab Description k ~Pc¥ ,~q/~ e~.4,'(,'~. :/-,;., Account Balance: Funding Alternatives: City Manager Review: Approved for Agenda:(~/ No InitiaLs: Hold Until: Agenda Coordinator Review: (if applicable) Received: MEMORANDUM TO: MAYOR AND CITY COMMISSIONERS FROM: CITY MANAGER ~'~ SUBJECT: AGENDA ITEM # ~:~'~ - REGULAR MEETING NOVEMBER 18. 2003 REPORT OF APPEA!.ABLE LAND DEVELOPMENT BOARD ACTIONS DATE: NOVEMBER 14, 2003 Attached is the Report of Appealable Land Use Items for the period November 3, 2003 through November 14, 2003. It informs the Commission of the various land use actions taken by the designated boards that may be appealed by the City Commission. Recommend review of the appealable actions for the period stated. Receive and file the report as appropriate. S:\City Clezk\agenda memo~\apa~me~ 11.18.03 TO: THRU: FROM: SUBJECT: pDA~uVL D4~ORLT. HARDEN, CITY MANAGER I~G, ~ECToR OF PLANNING AND ZONING IN ALLEN, PLANNER MEETING OF NOVEMBER 18, 2003 *CONSENTAGENDA* REPORT OF APPEALABLE LAND USE ITEMS NOVEMBER 3, 2003 THRU NOVEMBER 14, 2003 The action requested of the City Commission is that of review of appealable actions which were made by various Boards during the period of November 3, 2003 through November 14, 2003. This is the method of informing the City Commission of the land use actions, taken by designated Boards, which may be appealed by the City Commission. After this meeting, the appeal period shall expire (unless the 10 day minimum has not occurred). Section 2.4.7(E) of the LDRs applies. In summary, it provides that the City Commission hears appeals of actions taken by an approving Board. It also provides that the City Commission may file an appeal. To do so: 1. The item must be raised by a Commission member. 2. By motion, an action must be taken to place the item on the next meeting of the Commission as an appealed item. A. Tabled (5 to 0, Nancy Stewart absent, Deborah Dowd arrived late), a request for a color change for existing canopies for Liberty Warehouse Associates, an existing commercial building, located on the north side of East Atlantic Avenue, between NE 1st Avenue and NE 2naAvenue (137 East Atlantic Avenue). B. Tabled (5 to 0), a request for a color change for Lake Ida Shopping Plaza, located at the southwest corner of Lake Ida Road and Congress Avenue (600 North Congress Avenue). C. Approved (6 to 0), a Class I site plan modification associated with the installation of several shed style canvas awnings for Ocean City Builders, an existing commercial City Commission Documentation Appealable Items Meeting of November 18, 2003 Page 2 building, located at the northeast corner of NE 2nd Street and the FEC Railroad (325 NE 2nd Street). D. Approved (4 to 2, Dan Carter and Roger Cope dissenting), a Class I site plan modification associated with the replacement of a barrel tile shed roof with a shed style canvas awning for Sloan Court, located on the west side of NE 7th Avenue, between NE 4th Street and NE 5th Street (434 NE 7th Avenue). E. Approved (6 to 0), an 18 month site plan extension for Delray Outpatient, a proposed medical office complex, located on the north side of Linton Boulevard, approximately 625 feet east of Military Trail. F. Approved (6 to 0), a Class III site plan modification, landscape plan and architectural elevations associated with the construction of a 5,756 sq. ft. addition for a children's theatre, dressing rooms and offices for The Delray Beach Playhouse, located on the east side of Lake Shore Drive along Lake Ida (950 Lake Shore Drive). Concurrently, the Board approved a waiver eliminating the requirement to upgrade the entire site based upon an increase of 25% or more in the gross floor area of the structure. G. Approved (5 to 0, Gary Eliopoulos stepped down), a Class V site plan, landscape plan and architectural elevation plan for Bella Vista (fka Calypso Bay Condominiums), a proposed 8 unit condominium development located on the west side of Gleason Street, approximately 100 feet south of Miramar Drive. Concurrently, the Board approved an internal adjustment to reduce the required 24' wide drive aisle to 22'. H. Approved (4 to 0, Gary Eliopoulos and Dan Carter stepped down), a Class V site plan, landscape plan and architectural elevations for Banyan House, associated with the construction of a 4-unit townhouse complex, located at the northwest corner of NE 1st Street and the Intracoastal Waterway. Concurrently, the Board approved an internal adjustment to the required front setback line from 25' to 19' (two-story) and 17' (three story). Additionally, the Board granted a waiver reducing the site visibility corner at the driveway connection to NE 1st Street from 20' to 6' 10". Approved (5 to 0, Jim Keavney absent), a Class V site plan, landscape plan and architectural elevation plan for Endres Office, associated with the demolition of a non- contributing structure and conversion of a single family residence to office, located at 137 NW 1s' Avenue [east side of NW 1st Avenue, approximately 75 feet south of Martin Luther King Jr. Drive (NW 2nd Street)]. 2. Approved (5 to 0), a Class I site plan involving fagade changes to the eastern mixed-use building fronting West Atlantic Avenue for Atlantic Grove, located on the north side of West Atlantic Avenue, between the NE 3rd Avenue and NE 4th Avenue. City Commission Documentation Appealable Items Meeting of November 18, 2003 Page 3 No Regular Meeting of the Planning and Zoning Board was held during this period. By motion, receive and file this report. Attachment: Location Map. CITY OF DELRAY BEACH, FLORIDA - City Commission Meeting - November 18, 2003 I £,,_, i i c ......... .-ff"'"'~ .~11 L , f"~S.P.R.A.B.: H.P.B.: A. LIBERTY WAREHOUSE ASSOCIATES 1. ENDES OFFICE B. LAKE IDA SHOPPING PLAZA 2. ATLANTIC GROVE C. OCEAN CITY BUILDERS D. SLOAN COURT E. DELRAY OUTPATIENT F. DELRA Y BEACH PLA YHOUSE G. BELLA VISTA (fka CALYPSO BAY CONDOMINIUM) H. BANYAN HOUSE S CITY OF DELRA¥ BEACH, FL PLANNING & ZONING DEPARTT[4ENT 20O3 TO: FROM: SUBJECT: DATE: MAYOR AND CITY COMMISSIONERS CITY MANAGER ~..~. AGENDA ITEM - REGULAR MEETING OF NOVEMBER 18. 2003 AWARD OF BIDS AND CONTRACTS NOVEMBER 14, 2003 This is before the City Commission to approve the award of the following bids: Purchase award to Otto Industries Systems in the amount of $23fia.~..00 for the purchase of garbage carts with lids as a sole source purchase. Funding is available from 433-3711-534-49.35 (Sanitation/Cart Renewal and Replacement). Recommend approval of the above [fxds and purchases. S:\City Clerk\agenda memo\Bid Memo. l 1.18.03 MEMORANDUM TO: FROM: THROUGH: David T. Harden, City Manager Jacklyn Rooney, Purchasing Manager Joseph Safford, Finance Director DATE: November 10, 2003 SUBJECT: DOCUMENTATION - CITY COMMISSION MEETING NOVEMBER 18, 2003 - PURCHASE AWARD PURCHASE OF GARBAGE CARTS FROM OTTO INDUSTRIES Item Before Commission: The City Commission is requested to approve the purchase the quantity of five hundred eighty- eight (588) sixty (60) gallon garbage carts and lids from Otto Industries, Inc. for the total mount of $23,444 as a sole source purchase. Background: The City is in need of additional garbage carts with lids. These carts will have a forest green body, black lid, rubber tires and hot stamped with City seal and serial numbers. See attached memo dated November 05, 2003 rom the Code Enforcement Administrator. Otto Industries, Inc. has quoted to the City a unit price of $38.00 each for 68 gallon carts per attached quote dated October 31, 2003. This would be a full truckload of carts and the approximate freight for the full truckload is $1,100. Otto Industries, Inc. is the original vendor the City has been using for the purchase of these carts since their initial "roll-out" in 1996. Recommendation: Staff recommends the purchase of the garbage carts with lids and freight included for the total amount of $23,444 from Otto Industries, Inc. as a sole source purchase. Ftmding from account code #433-3711-534-49.35. Attachments: Memo from Director of Community Improvement Quote from Otto Industries, Inc. Menlo To: Thru: From: Date: Re: Jackie Rooney, Purchasing Supervisor ,,/2-. Lula Butler, Director of Community Improvement Richard Bauer, Code Enforcement Administrator November 5, 2003 Purchase Requisition for Garbage Carts Please prepare a Pumhase Requisition for the following items: Quantity Manufacturer Item Description Price Total Price Model Each 588 OttoWaste Systems, LLC MSD 682 68 Gallon Roll Carts $38 $22,344 Freight: Full Truck Load $1,100 I Total Cost $23,444 All carts to be forest green body, black lids complete with rubber wheels, axels and hot stamped City logo and serial numbers to start "04." Funding will be from account 433-3711-534.49-35. I believe this item will require City Commission approval. Therefore, please submit this item for inclusion on the next regular City Commission Agenda, which is November 18, 2003. Thank you for your help. RB:mh OTTO WASTE SYSTEMS, LLC 12700 General Drive (28273) PO Box 410251 Charlotte, NC 28241-0251 Telephone (704) 588-9191 Facsimile (704) 588-5250 October 31, 2003 Ms. Patsy Nadal City of Delray Beach 100 N.W. 1st Avenue Delray Beach, FL 33444 IN31 3OBO-IN3 03AI O3H Dear Ms. Nadal; It was a pleasure to talk to you earlier today. Thank you for your request for a quotation with the pricing of a truckload (588) of the Otto MSD 68-gallon rollout carls. We are pleased to quote as follows: · (588) Otto 6B-gallon rollout carts $38.00 per cart The pricing, as quoted, includes carts molded and hot stamped exactly as all of the previous carts that Otto has shipped to Delray Beach. The carts will have the rubber- tread wheels, plastic "catch" bar, and city logo hot stamped on both sides of the cart body. The pricing is quoted FOB: Charlotte, NC. I've checked on the cost for freight to Delray Beach, and the estimated charge is $1,100 for a truckload delivery. Presently our lead-time for 68-gallon orders is 2 - 3 weeks after receipt of order. If there are any further questions, please call me on 704-556-1631. You may send your purchase order to me for processing, or fax it directly to our Customer Service specialist, LT Beale, at 704-588-5250. Regards, Gary Hallen Otto Waste Systems, LLC. Director of Sales A Subsidiary of Otto Industries North America, Inc~ AGENDAITEM NUMBER: ~'~'"~-- AGENDA REQUEST Request to be placed on: November 18, 2003 Date: November 10, 2003 XX Consent Agenda Special Agenda __ Workshop Agenda Description of agenda item: Approve purchase award to Otto Industries, Inc. for the purchase of a full truckload of 60 gallon garbage cads with lids from Otto Industries for a total amount of $23,444 as a sole source purchase. ORDINANCE/RESOLUTION REQUIRED: YES Draft Attached: YES NO NO Recommendation: Purchase 588 sixty (60) gallon garbage cads from Otto Industries for a total amount of $23,444 as a sole source purchase. Funding from account code 433-3711-534-49.35. Department Head Signature: (~~ ~(~'~. , .~i.~/~ Determination of Consistency w~th~Comprehensive Plan.'~ ~' City Attorney Review/Recommendation (if applicable): Budget Director Review (required on ,all items involving e~(perfdi~re of funds): Funding available: Yes ~ No (if applicable) Funding alternatives: Account Number: Account Description: Account Balance: City Manager Review: Approved for agenda: Hold Until: No Agenda Coordinator Review: Received: Menlo T~ David Harden, City Manager From: Lula Butler, Director, Community Improvement Date: November 13, 2003 Re: Request for Lien Reduction/Community Redevelopment Agency ITEM BEFORE THE COMMISSION: Consideration of a request from the Community Redevelopment Agency (CRA) to release a portion of the liens assessed for abating certain nuisances in the form of accrued interest and administrative fees to property addressed at 222 SW 3~d Avenue. The total amount of the accrued interest, administrative fees and special collections assessed requested as the amount by which the liens are to be reduced is $3,547.03. BACKGROUND: The City Commission approved a policy goveming requests for release and/or reduction of liens at it's regular meeting of October 21, 2003. The policy states that the Commission may consider reducing liens up to 100% when coming from the CRA in support of providing first- time homeownership opportunities under the Renaissance Affordable Housing Partnership program. This request is consistent with the dire~on and policy approved by the Commission. The total amount of the lien assessed to the subject property is $5,860.63. The CRA application to reduce the lien in the amount of the accrued interest, special collection and administrative fees is attached for your reference. They are willing to pay the City's actual out-of-pocket costs for this property. As noted in their application, the CRA acquired this property through a tax deed acquisition and will be offering this lot for sale through the Renaissance Program. RECOMMENDATION: Staff is recommending approval of the request from the CRA to reduce the liens associated with the subject property in the amount of $3,547.03 with the provision that the balance of the liens will be paid within 30 days of City Commission action. LB:DQ Attachment Charge Breakdown ........ ? ~ A~dress 1222 SW 3rd Avenue DATE INVOICE RECO~_D_I_NG [ ADMINISTRATIVE i v~qI~(~-R- FEE FEE DEMOLITION 12/9/1987 10595 182.50 1,825:~_0 : NUISANCE 09/10/92 18052 2.50 70.00 ' 39,42 07121/94 7999 3.67 70.00 50.00 03/09/95 19629 3.59 70.00 84.50 08/23/96 18380 3.92 70.00 56.00 11106/96 17519 4.36 70.00 61.00 11103107 ~ 17206 2.71 70.00 61.00 -~- 11949 2.63 - ~60 - 51.00 --'- 06/18/98 10/19/98 12657 3.10 70.00 SPECIAL COLLECTIONS 03/14/01 -- 19517 ' ....... SPECIAL COLLECTIONS 46.00 PAYMENTS TO VENDORS 2,286.92 742.50 ADMINISTRATIVE CHARGES RECORDING FEES 26.68 INTEREST 2,758.53 5,860.63 BELRAY BEACH CRA S6127685S8 p.! 104 West Atlantic Avenue, Delray Beach, FL 33444 561-276-8640 fax - 561-276-8558 email: steele@ci.delr ay43each.fl.us To: Lula Buffer From: Juliana Steele, As,st Director/Controller Fa~: 243-7221 Pa{leS: 3 ~ ~ 11/7/2003 lien Reduction Request [] Urgent ~ For Review [] Please Gomment [] Please Reply FI Ple~e Recycle Hello/ula - The CRA is in the process of clearing up the title on one of our Tax Deed acquisitions and we have found old liens on the property going back to the 80's. The accounts are as follows: Account # Amount Description g56 $4,055.69 g3406 $1,531.85 ft56 $227.09 Unsafe Building Nuisance Abatement Nuisance Abatement I've attached a "Request for Reduction of Municipal Liens" form for your consideration. The CRA is requesting a waiver of the administrative fees and interest only. We are eager to get the title cleared on this lot so wa can offer it back to the community as an Affordable Housing lot through the Renaissance Program. Any assistance you can offer to facilitate this process would be greatly appreciated, Please call me if you have any questions or need further information with regards to this request. Thanks! DELRRY BERCH CRR 5612768S58 City of Delray Beach Department of Community Improvement REQUEST FOR REDUCTION OF MUNICIPAL LIENS FORM Please complete the information listed below as the requester for lien reduction. · Requester's Name (if business, please list company name and contact person): ..D .E. LRAY BEACH COMMUNITY REDEVELOPMENT AGENCY · Address: 104 West Atlantic Avenue, Delray Beach, FL Contact Telephone Number: Fax Number.' 561-276-8640 x-205 561-276-8558 Email Address: steele~'~ci.delra¥-beach.fl, us 2. Please indicate if the company listed in 1, above (if applicable), is: [] For Profit ..~[' Non-Profit 3. Property information - Descdbe the property for which this request is being made: · Address: 223 SW 3~ Avenue Property Control Number (PCN): 12-43-46-1 7-07-039-01 30 Legal Description: RESUB of South ~ of Block 38 and North % of Block 39, DELRAY BEACH Lot 13 Block 39 DELRRY BESCH CRR 5612768S58 p.3 Property acquisition information: · Date of Purchase: May 20, 2000 · Method of Purchase -Warranty Deed, Tax Certificate, etc.: TAX DEED · Purchase Price $ $,~4,858.78 Bdefly describe exactly what you are requesting from the City: The CRA is requestinq a waiver of the administrative fees and interest only on this lot. We will Day anv hard costs that the City has incurred. Briefly describe the purpose for which the subject property will be utilized and your proposed timetable for implementing such use: The CRA acquired this property throuqh a tax deed acquisition as part of its efforts to acquire affordable vacant Jots for the Renaissance Pro,qram. Once clear title is obtained the CRA will offer this lot for sale throuqh the Renaissance Program. Have you requested lien reductions at any other time from the City of Delray Beach? Is so, when and on what property: The CRA requested a waiver of the interest and fees only on the Bennie Thomas property in Apdl 2003. The City ,clranted this waiver and the CRA paid the hard costs associated with the property in the amount of ~;3,177.61. ~n~ owner's agent) Signature Juliana Steele. Assistant Director/Controller Agent's Title Date Submiffed Date: 11/13/2003 Request to be placed on: __ Consent Agenda When: 11/18/20(33 AGENDA REOUEST AGENDA ITEM NUMBER: X__ Regular Agenda __ Workshop Agenda_ __ Special Agenda Description of agenda item (who, what, where, how much): Request for Lien Reduction from the CRA in the amotmt of $3 547.03 for property located at 222 SW 3 Avenue Department Signature: City Attorney Review/Recommendation (if applicable): Budget Director Review (required on all items involving expenditure of funds): Yes / No Initials: Funding Available: Account Number Description Account Balance: Funding Alternatives: City Manager Review:. (if applicable) Approved for Agenda: (~/ No Initials: Hold Until: Agenda Coordinator Review: Received: Memo · ro: David Harden, City Manager , /~. From: Lula Butler, Director, Community Improvement Dat~ November 13, 2003 R~. Request for Release of Lien/Nick Arsali ITEM BEFORE THE COMMISSION: Consideration of a request from Mr. Nicholas Arsali, a pdvate investor, to reduce liens assessed to property he now owns located at 231 NW 8th Avenue. The liens were assessed as a result of the abatement of nuisances and demolition of an unsafe structure between 1998 and 2002. The total assessed amount is $10,773.28; the City's actual out-of-pocket cost is $7,329.90. BACKGROUND: According to the application submitted by Mr. Arsali, (attached for your reference), the property was acquired through a tax deed acquisition at a cost of $4,300 plus another $6,500 in delinquent property taxes. The owner has a pending contract for sale with the CRA in the amount of $20,000. The CRA has stated they will make this lot available to the Renaissance Partnership for an eligible first-time homebuyer. He is requesting a reduction in the lien equal to the accrued interest and administrative fees in the amount of $3,443.38. This request is consistent with City Commission policy goveming the reduction and release of liens approved October 21,2003. RECOMMENDATION: Staff is recommending approval of the request from Mr. Nicholas Arsali to reduce outstanding liens assessed to the property represented in his application in the amount of $3,443.38. LB:DQ Attachment Charge Breakdown ' ~Custo~er # ~7258 - ~.Na..me ~,ick Ansali i -- iAddress~ ~231 NW 8th Avenue DATE ' INVOICE - RECORDING |J ADMINISTRATIVE FEE FEE DEMOLITION 7/21/1999 14465 08/05/02 22392 ~ 01/04/02 21361 I - 10/17/01 20660 07/18/01 20169 3.06 ~2/19/00 . 18749 3.11 ~5/~ ~/00 ' 17854 ~ 3.48 07/06/00 17061 2.80 722.66 80.00 80mO0 80.00 70.00 70~0 70.00 70.00 6,743.62 NUISANCE 58.10 58.18 65.90 58.18 50.95 50.95 58.93 12/06/99 15496 3.64 70.00 70.00 06/18/98 11954 55.00 99.00 ~AYMfiNT$ TO YENDORS 7,313.81 -ADMINISTRATIVE CHARGES~ 1,367.66 RECORDING FEES 16.09 · - INTEREST _ 2,075.72 ' 10,773.28 Cily of Delray Beach Department of Community Improvement .REQUEST FOR REDUCT. ION OF MUNICIPAL ~i E~T,S, FORM 1. Pl~ze complete the inform~on lis~l below as the requester for lien lu¢:ion, · ReClUe~er's Narae (ffbusiness, plebe 1~ comply ~e ~d nt~t pemon): · Add.ss: o. q15 2. PI~e indicate if~e co~y Hsted h 1, ~ove (if applicable) is', For Profit Non-Profit $. Pwp~ ~o~fion - Demcdbe ~e pmp~ for wM~h ~s mqu~ is b~ ~g made: · I~'operty Contxol Number (PCN): · Legal Description: 4, Pl~se iadicstc whe-, how and for how much you ~quir~d the pmp~'y; 5. Briefly describe ~xaedy what you are requesting from the City: 6. Briefly descrfoe the purpose for which subj~c! pmpart}'will be your proposed limetablo for '_unplome~ti~g such use- 7. Hav~ you requested lien redncfion-~ at any ether lime ~m the Ci Beach? If so, when and on wha~ property: agent) .~gent ' s Tiflc )ore llized and ~ °fDekaY(~(F. 2' Subnn~ed- (Ph~ ),a~ COMMUNI~ R~EVELOPMENT AG~ OF OE~Y BEA~, ~), West ~lan~c Av~ue, ~lray Be~. ~a ~. (Phone 561-2~40), her~y a~ [hat the sh~l sell a~ Buyer sh~ll buy the ~i~g ~ pr~y ('Ree~ Pm~') ~ ~nal prepe~y ~emonaltv~ (~l~fively "~) upo~ ~e f~ ~e and condi~ w~ INCLUDE t~ S~ndar~s Re~ ~te Tran~ctions et~h~ ("S~ndard{~]") ~d any edden~m ~ ~ inM~ument. DE6CRI~: (a) Le~l ~c~p~ ~ Real ~ ~d In Palm ~ C~y, TO~ OF DEL~Y, ~u~ ~ F~t ~ ~r~ ~7 Fe~ (h) S~reet address, ct~,, ;rip. of File Properly i.: ....... ~31 NV~ ~* Avenue (:) ~=er~onalty: NONE ... II. PURCI*tASE PRICE: ................................... $. 20,000.D~. .... PAYMEN'r: (a) DeposlI [o b~ h~d in ~.~row by ~ W. ad~s~menb ~ ~at~ $ 19.~.~ IlL T~E FOR ACCE~ANCE: EFFEC~ ~; FA~IM[E: ~ ~is ~ ~ net ~uted by and ~c~ce ~ S~a~ A. (CHECK (~) O~ {2)): (1~ ) abs~ Of t~e ~ (2)( X ) ~Ue J~s~nce UELRRY g£RCH CRR 5B1~768~S8 p.3 TYPEWRITTEN Of~ HAN~n~EN PROVI~ONB; Typew~i[l~n RID~: (C~K If ~ny ~ the fo~ Rid~ ~e appll~ble ~ ~e ~h~ [o ~fs CO~I): aX ~s~l C~s~on C~lr~ Line Rider bX ~n~m~m Rid~ eX )For~gn Inv~t in R~I ~Op~ T~ A=t RI~ dX J~ion Rid~ eX )~A ~d~ ~S~N~I~: SPECIAL CLAUSe; (CHECK (1) OR (2)): T~E 18 ~ THE ~GE a~ncy~don/~afi~ and e~m~ c~fng ~ d~cl~ ....... B~ER'8 IN~ Buyer Dale Seller Date $oc~a| Seeur L,,/ So~lst Security or Tax ID No. or Tax ~) NO. ~yeT Date Seller D~e S~cia{ Se=uri~.y SoOlel Security or Tax ID No. or Tax ID NO. ADOENOUM 1'0 CONTRACT FOR 8ALE AND PURCHASE SELLER: NICHOLAS ARSALI BUYER: COMMUNITY REDEVELOPMENT AGENCY OF DEI.RAY BEACH PROPERTY ADORESS: 231 NW 8~ AVENUE PROPERTY CONTROL NUMSER: 12-43-4~-16-01-G02-0160 XI¥- SPECIAL CLAUSES (Continued): A. RADONGAS: Radongasls~atum~lyo~x:~'ringmdtoactivega~lh~t~whentih~se~cumuJa~d L~e~s of md~ ~t e~ ~er~ a~ s~ guldeU~s ~e ~n found in ~a[~ r~lng radon and radon [~t~9 ~y ~ o~ai~ed ~ y~r B. FOREIGN IN~ENT iN RE~ pR~ER~ T~ A~ CFI~T~: Orov[ded he.iq, ~u~r, ~nt to ~fi~ 1445 ~ ~e In~ma; Re.hue C~e of 1~6, es ~m~ ('Seclio~ 1~5') and the regulators promul~d ~u~ ("~e[~ns"), ~lt. be ~ ~ ~i~h~d such 3mount as Is necass~ to c~ply ~ ~ R~ulatlo~s a~ ~ ~m~y r~ ~ ~e In~ Revenu~ S~[~ the ~ount so ~thhe~ e~ w~th prepay ~p~ rom~afl~ ~m~. clos~. O~l;r pmvi~s ~ ~ (1) an A~vit ~ Non-Fo~ S~Us r~ S~ler, (2) Non-~ec~nltlo~ Tres{~nt or (3) a W~h~lng C~ce~ establishing ~t led~ ~me t~ ~s ~ulred to be ~hheld under ~on 1~5 (~l~y C. This C~ b ~ent u~ ~e COMMUNI~ R~EV~OPMENT ~E~H'S B~0 of C~m~ers appr~i~ ~is ~n~ ~h f~ (14) ~OMMUNI:~f REDEVELOPMENT AGENCY SELLER Date: 11/13/03 AGENDAITEMNUMBER: q ~ AGE NDA RE OUE ST Request to be placed on: __ Coment Agenda X__ Regular Agenda Workshop Agenda_ __ When: 11/18/03 Description of agenda item (who, what, where, how much): Reqnest for Lien Reduction in the amount of $3,443.38 for property located at 231 NW 8 SpecialAgenda ~De. partm[nt Headx /~ ,o City Attorney Review/Recommendation (if applicable): Budget Director Review (required on all items involving expenditure of funds): Funding Available: Yes / No Initials: Account Number Description ^~ccount Balance: Funding Alternatives: City Manager Review: HoldAppr°ved for Agenda: &/Until: No Initials: ~ Agenda Coordinator Review: Received: (if applicable) Memo To.' David Harden, City Manager Lula Butler, Director, Community Improvement November 13, 2003 Request for Release of Lien/Jacqueline Robinson ITEM BEFORE THE COMMISSION: Consideration of a request from Jacqueline Robinson, property owner, to reduce liens assessed her property located at 45 SW 13th Avenue. The liens were assessed as a result of the abatement of nuisances and demolition of an unsafe structure in 2002. The total assessed amount is $5,773.34; the City's actual out-of-pocket cost is $4,617.28. BACKGROUND: Ms. Robinson inherited this property after the death of her parents. The City condemned the odginal structure as an unsafe building and subsequently demolished it. Ms. Robinson now has a contract for sale of this property to Grayhawk Development Corporation, which is one of the local buildem under our Renaissance Program. This corporation has stated that their intent is to build a new single family structure on this lot. The proposed sale pdce is $28,000. Ms. Robinson has asked for a 100% reduction of the liens. She has stated that she has a personal financial hardship and needs the revenues Eom this sale to assist her at this time. The policy adopted on October 21, 2003 by the City Commission provides for a reduction of liens under this type of a request. Therefore, Ms. Robinson is entitled to the Commission consideration to reduce the lien by the amount of the accrued interest and administrative fees assessed only. A copy of her application and sales contract are attached with the submission for your reference. RECOMMENDATION: Staff is recommending approval of the reduction of the lien assessed to the property represented in the amount of $1,156.06, with the provision that the balance owed shall be paid within 30 days of the Commission's action. LB:DQ Attachment Name Jacquelyn Robinson Address i45 SW 13th Avenue DATE ~ NVO CE RECORDING ~ ADMINISTRATIVE VENDOR PAYMENT ~ .......... ~ FEE .... | FETE' 6EUOt_i'ri0~ 21642 - NUISANCE 8/29/2002 22584 21922 5/2/2002 55.00 ~ 58.10 80.00 ~ 127.70 PAYMENTS TO VENDORS 4617.28 ADMINISTRATIVE CHARGES 633.14 WATER LIENS iNTEREST TOTAL 2636.38 52~2'92 5773.34 NOV. ?.L~I~ 4:5~PM CITY OF ~ ~'RCH HO.~?5 P.~4 City of Delray Beach Department of Commun3~y Improvement Fax Numl~z · E-mail a&lress: 2. l~l~e iadic~e if the company listed in 1; ~ (ff~pplioble) ~: ug made: ~8 39~ 39VI~H 8S88~89£I8 ~£:~G EOOE/OI/II * Date of Ih,~,i:m~: · ~ ofl~rclm~. Warmly Dead, Tax Cart~m~e, ~tc.: ~. ~rie~y .~..~ibe t~e pm'pose fgr which subje~ pro~'~T' ~ill be utili Ag~t'~ Ti~ ~Delmy B~ach7 £0 BD~d 3D~I~H 8~88~89£~8 ~g:~G FROM :STA~-G~OUP FAX NO. :~G14??498~ Nov. 04 ~00~ ll:4BAM P~ 2* (,,BL~,er.~) 3 II, at Seller shall sail eno Buyer she buy ~e 1o ow ~j deesr bed R~ Pr~ ~0 Per~n~ Pmpe~ (cotl~iveN "Prepay") 4 pu~an~ [o t~ ter~ and condigns of th~ ~ntract ~r Sale a~d Pu~ ~ any no~e aha aaoen~a 'Cont~of'l: 5 I. DE~RI~ION: 6' ~a) ~ega ~esc~pti~n ~f tbs ~ Prop.~ ,~a~eo in'alU ~.~ ,, C~pty, F~r,~ 10 (c) P~n ~ Prape~ lnclu~s a~ting ren~, r~g~ato~ dlshwas~r. ~iling ~s, light fixtures, ~d ~ow tr~trn~ s unless 11 enec ~1~ exclud~ bel~, 16' II. PURCI-IA 17 PAYMEN' 18* (a) Depoe~ 19' (b) Additic 20* (see Para! 21 to)/~eum 22* pr~ent 23* (d) New rt 2~.* (e) Purcha 25' (0 Other:. 28 (g) Baianc 2T' Fo adJustn 28 Ill. TIME FOI 29 (a) I,~ th s 30* before '_ 31 ERWISE 32 TEROFFf 33 (b) ']'he d~ 34 final coon 35 eccectan~ ~36 IV. FINANCI! 38' 40* 41~' years 42 Appr~3val 43 fails 44 diligent, 45 to the c 47' ,48* V. TITLE EV ~ (a~ Tltls 50* E;k)eing, e 51 ' shall be o 52* 53' VI. CL.O$1N~i 54 modified 55 due to extram4 58 VII. RESTRIC' 57 restrictions, or{ (located corn IE PRICE (U.S, currency): ............................................... $ held In escrow Dy II v~. ~' (ESCROW Agent) In the am~nt of .. $ ..[ 3al ~orow deeos~ [o ~ mede ~ Escrow ~ent w~hin aa~ a~r Eff~be Date ~ph IIIJ In the amount of. ................................................ )~on of ~1~1~ mod~age in g~d s~ding (~e P~gr~h IV(c)) I~ng an ~mate ~3cioal ~1~ of ...................................................... OKgage pr~nc ~ Wi~ a L~d~ (s~ Paagrabh IV¢o)) in the.amount of ................... m money m~e ~a no~e ~o ~r [S~ P~h Iv(~) in ~0 ~ount 0f .............. $ ~ to cl~ by cash ~r L~A~Y D~WN ~h~r~ or ~clai b~k chesk(s subject ............. .. ...................................... I A~EPTANCE OF OFF~ AND COUN~ROFFE~ EFFECT~ DA~: fief ~s no~ ~ed Dy ~d de~ered Io ~l.p~es OR FACT OF ~OUTI~ c~muni~ted in w~tlng baleen "_~' ~ ~ ...... tbe deposit(s) ~11, at Buyer's opt~n~ be returned and ~is offer withdrawn. UN.SS ~TATED= THE TIME FOR ACCE~ANCE OF ANY ~UNTEROFFERS SHALL BE 2 DAY8 FROM ~E DATE THE ~UN- R IS DELIVE~D. ~ ~ Contract ["EEe~ive Date") will be the sam when ~e la~ one Of ~he ~ver ~d ~ller has ~gned ~ ink.ed this ~ ~ the eroffer. I1 such date ~e not o~n~ set ~h In this C~, (hen the "Effe~ve Date' sha~l be ~e da~e dete~i~3ed ~ve · of this ewer or. E aoDllcable, ~e fi~ count~offec obtaining approva~ of e. loan ("Loan Approval"; within '~ ~ days after El~eotlve Da~e for (CHECK : [3 a fixed: r-, an aaju~tabie; oror ac. ustab~e rate loan. in '~e prin_cipal amount Ct $ 7_ ~ [.icrc/3'~ . at an initial inter'- 1.0 % anc~ origJnatic~ fees not to exceed -~ % of principal amount, and~or a term of r~- ~pplication within ~ days (if blank, then 5 days) after Effective Da~e add L~e reasonable dillgeno¢ to obtain Loan thereafter, to satisfy terms and condil~ons of the Loan Approva~ eno close the k3an. Buyer shall p~y all loan expenses, ff Buyer a !_~an A.oDmvai or fails b3 Waive Buyer~ fights ur~ this subparagraph within the time for obtaining Loan Approval or, after falls to meet the terms and cnndlflons ol the Loan Approval by Closing, the~ either pert~ [hemaff..er, by wrffi'en notice may cacceJ thl~ C~ntrect arid Buyer shell be rehJnded tr~e dePosit(s); mortgage {see rider for terms); ~r r flnandng (see Standard B aJ3d dders: aooan~a; or special clauses for terms), DENCE:. At lea~ ~ days [if blank, then 5 days) before Closing; insurance con3mltment with legible copies of instruments listed es exeepQons attached thereto ,,,,'ntis Commitment)' and, after ~ owner's 13~llcy of' title insurance (sos Standard ^ for terms); or E~ (b) Abstra~ of title or other eviclen~e of t~le (see rider for terms), ltain~l by (CHECK ONLY O1~: t~!1.('1)Seller, et Seller's expense and delivered to B~yer or BL~yar's altomey; or ~.+[(~ CO. , Q (2) Buyei' a~ Buyer~ expense. ,,""'~. I~ I ~- -- - 'F ,fl~ I~1~/V~'~ DATE: Tl~is transaction shall be closed and the dos ng documents cieliYered on ~_.?;~f.D[/-.~--~ ct- ~o~ tc(-Cles~g'), unls~s 1er provisioce of this Con~ract. If Buyer ~s unable to obtaiR Hazard. WiRd, Floocl. or Homeowners' Insurance at a reasoiqal31e rate weather conditions. Buyer may delay ClOSing for up to 5 days after such Cbvsrage oecomes available. 'IONS; EASEMENTS: LIMITATIONS: Seller eha~ convey marketable title subjoin to: comprehensive land use plans, zoning, ~qlbltions and omar reouiremante Imocss0 by govsrnmemel authority restrictions end matter~ appearing on the plat Or o[ha~vise subdivision outstanding ol, gas and mineral ngnte of record without right of ent~Yl unplatted public utility easements of record Jous to real Droper~j lines and ¢K~t more than 10 feet in width as f(~ tbs'rear or froc~t lines and 7 1/2 feet in width as to the'side FAR/13AR-8$ )/01 Page 1 or 4 FROM : STAR-GROUP FAX NO. :S614774982 Nov. 04 2003 11:49AM P3 r~ ~ ~T UN'~L FROM :STAR-GROUP FAX NO. :5614774982 Nov. 04 2003 ll:S3AM PG ,I Date: 11/13/03__ AGENDAITEMNUMBER: %~-----.~ O AGENDA REOUEST Request to be placed on: __ Consent Agenda X__ Regular Agenda __ Workshop Agenda_ When: 11/18/03 Description of agenda item (who, what, where, how much): Request for Lien Reduction in the amount of $1,156.06 for propertylocated at 45 SW 13 Avenue Special Agenda Department Signamre: Hea~zxd~~~ City Attorney Review/Recommendation (if applicable): Budget Director Review (required on all items involving expenditure of funds): Funding Available: Account Number Description Account Balance: Funding Alternatives: City Manager Review: Yes / No Initials: (if applicable) Approved for Agenda:(~/ No Initials: Hold Until: Agenda Coordinator Review: Received: MEMORANDUM To: City Commission From: David T. Harden, City Manager Subject: Proposed $9,685,000 Revenue and Refunding Note Resolution No. R 78-03 Date: November 13, 2003 The City Commission approved SunTrust as the lending institution that will provide a Note to the City. The attached resolution determines the details of the loan transaction which are summarized as follows: Resolution Number 78-03 authorizes the issuance of Revenue Bonds not to exceed $9,685,000; approves the form and execution of a note with SunTrust at a fixed rate of 3.659% for an approximate 15.5 year term for the purpose of re-financing, in par~, the City of Delray Beach 2002 Revenue Bonds and the City of Delray Beach 2002 (Taxable) Revenue Bonds, and in whole, the City of Delray Beach 1999 Revenue Bonds. In addition, the new bonds will finance costs associated with the Library project. The resolution also designates the borrowing as qualified tax- exempt bonds; and authorizes proper officers of the City to do all things necessary in connection with the issuance. The Finance Department recommends approval of this resolution. I concur with their recommendation. c: R.S. O'Connor, Treasurer File: commiss03res.doc MEMORANDUM To: From~ Thru: Subject: Date: David T. Harden, City Manager Rebecca S. O'Connor, Treasurer M. Saffor~'or of Finance Joseph Proposed $9,685,000 Revenue and Refunding Note November 13, 2003 Bsckqround On October 23, 2003, the City Finance Department received bids for the above referenced financing (the "Note"). The $9,685,000 Note will be issued for the purpose refinancing, in part, the City of Delray Beach Revenue Note, Series 2002 (interim financing of the Atlantic High Project, Temple ,Sinai land acquisition, Barwick property acquisition) and the City of Delray Beach Revenue (Taxable) Note, Series 2002 (interim financing of the Golf Course Improvement Project); and in whole, the City of Delray Beach 1999 Revenue Bonds (permanent financing for communications equipment). In addition, the new bonds will finance costs associated with the new Library Project. Term We asked that the banks make their bids based on 1.) one note ($9,685,000) with a 15.5-year bank qualified tax exempt rate and 2.) two separate notes based on a bank qualified tax exempt rate. We requested bids for a note totalling $7,330,000 for a 20 year term and the second note totalling $2,355,000 for an 11.5 year term. Security The Line of Credit will be secured by budget and appropriate on an annual basis from non-ad valorem revenues the amount sufficient to pay debt service. Prepayment Provisions/Gross-up Provisions The City asked the banks to bid with and without a "pre-payment penal~'. The "pre-payment penalty' is a fee charged or a premium paid by the City in the event the City chooses to pre-pay the note. The penalty described by the bidding banks is based upon a formula that basically protects the banks from any loss due to a decrease in the interest rate at the time of pre-payment. If the rates are higher at the time of pre-payment there would be no pre-payment penalty. Bid Responses The City received responses from Bank of America, SunTrust, and Wachovia. (See Attachment A) Note: The banks also placed additional conditions with respect to the financing. Wachovia placed an additional pledge requiring debt service coverage of 1.5x instead of 1.10. Bank of America and SunTrust placed no additional conditions. Recommendation We recommend (Option 1) the fixed rate financing option for a 15.5-year term with the "pro- payment penalty and gross-up" language offered by SunTrust. This option offers the lowest bid offered by the bidding banks. We have attached a resolution provided by Steve Sanford of Greenberg Traurig, the City's Bond Counsel, which authorizes the agreement with Bank of America. Note: The present value savings associated with the refunding of the 1999 Revenue Note was approximately $232,000 or 9.84% of the refunded bonds. The approximate annual savings is $25,0O0. File: commiss03B.doc o~ Ill RESOLUTION NO. 78-03 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AUTHORIZING THE ISSUANCE OF NOT TO EXCEED $9,685,000 IN AGGREGATE PRINCIPAL AMOUNT OF REVENUE REFUNDING AND IMPROVEMENT BONDS, SERIES 2003, OF THE CITY OF DELRAY BEACH, FLORIDA FOR THE PURPOSE OF REFINANCING CERTAIN OUTSTANDING REVENUE OBLIGATIONS OF THE CITY AND FINANCING CERTAIN CAPITAL COSTS ASSOCIATED WITH A NEW LIBRARY PROJECT AND PAYING ALL INCIDENTAL AND NECESSARY COSTS RELATING THERETO; DETERMINING THE NEED FOR A NEGOTIATED SALE OF SUCH BONDS TO SUNTRUST BANK; PROVIDING FOR THE TERMS AND PAYMENT OF SAID REVENUE REFUNDING AND IMPROVEMENT BONDS, SERIES 2003, AND THE RIGHTS, REMEDIES AND SECURITY OF THE OWNERS THEREOF; MAKING CERTAIN COVENANTS RELATING TO THE ISSUANCE OF SAID REVENUE REFUNDING AND IMPROVEMENT BONDS, SERIES 2003; APPROVING THE FORM OF AND AUTHORIZING THE EXECUTION OF A BOND PURCHASE AGREEMENT WITH SUNTRUST BANK; DESIGNATING THE REVENUE REFUNDING AND IMPROVEMENT BONDS, SERIES 2003 AS "QUALIFIED TAX-EXEMPT OBLIGATIONS" WITHIN THE MEANING OF SECTION 265(b) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, AUTHORIZING THE PROPER OFFICERS OF THE CITY TO DO ALL OTHER THINGS DEEMED NECESSARY OR ADVISABLE IN CONNECTION WITH THE ISSUANCE OF SAID BONDS; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City Commission of the City of Delray Beach, Florida (the "City Commission"), hereby determines that it is in the best interest of the City of Delray Beach, Florida (the "City"), to refinance the Prior Debt (as herein defined) and to finance certain costs relating to the acquisition, construction and equipping of the City's new library facility, as further described on Exhibit C attached hereto, together with all incidental and necessary costs relating thereto (the "2003 Project"); and WHEREAS, on December 14, 1999, the City Commission did adopt Resolution No. 76-99 (the "Bond Resolution") authorizing the issuance, from time to time, of revenue bonds (the "Bonds") to financial capital projects in the City; and WHEREAS, any capitalized term used in this Resolution and not otherwise defined, shall have the meaning ascribed to such term in the Bond Resolution; and WHEREAS, pursuant to the Bond Resolution each series of Bonds issued thereunder shall be payable solely from the City's covenant contained in the Bond Resolution to budget and appropriate in each Fiscal Year, by budget amendment if necessary, Non-Ad Valorem Revenues and deposit the same in the Debt Service Fund created and established under the Bond Resolution; and WHEREAS, pursuant to the terms and previsions of the Bond Resolution and this Resolution, the City shall issue a series of Bonds known as "City of Delray Beach, Florida Revenue Refunding and Improvement Bonds, Series 2003" (herein, the "2003 Bonds") to refinance the Prior Debt and finance the costs of the 2003 Project, including the costs of issuing such 2003 Bonds; and \~1\SANFORDS',447485~OT',11/14103',99~426594 Resolution No. 78-03 WHEREAS, the principal amount of the 2003 Bonds authorized under this Resolution shall not exceed $9,685,000; and WHEREAS, the 2003 Bonds shall be secured by a pledge of and lien on the Pledged Revenues; and WHEREAS, City staff has previously solicited bids from qualified lending institutions to provide a closed-end line of credit or term loan as the vehicle by which the 2003 Bonds are to be issued, the Prior Debt is to be refinanced and the 2003 Project is to be financed; and WHEREAS, City staff has determined and the City Commission hereby concurs that SunTrust Bank, a banking organization organized under the laws of the State of Georgia with its designated office in West Palm Beach, Florida (herein, the UBank") has provided the best overall bid to the City; and WHEREAS, the City Commission hereby finds that in light of present market conditions, the aforementioned bid provided by the Bank, the necessity for the funds in calendar year 2003, and other factors described herein, it would be in the best interest of the City to sell the 2003 Bonds to the Bank on a negotiated basis pursuant to the terms and provisions of the Bond Resolution, this Resolution and that certain Bond Purchase Agreement dated the date of delivery of the 2003 Bonds (herein, the "Agreement") by and between the City and the Bank in substantially the form attached hereto as Exhibit A. WHEREAS, the City does not expect to issue more than $9,685,000 of its tax-exempt obligations in calendar year 2003, and based upon the advice of its Bond Counsel, the City Commission shall designate the 2003 Bonds as "qualified tax-exempt obligations" within the meaning of Section 265(b) of the Code. NOW, THEREFORE, be it resolved by the City Commission of the City of Delray Beach, Florida, as follows: ARTICLEI STATUTORY AUTHORITY; FINDINGS AND DEFINITIONS SECTION 1.1 AUTHORITY FOR THIS RESOLUTION. This Resolution is adopted pursuant to the provisions of the Charter of the City of Delray Beach, Florida, as amended and supplemented, the Florida Constitution, Chapter 166, Florida Statutes, as amended and supplemented, and other applicable provisions of law (collectively, the "Act") and the authority provided for in the Bond Resolution. SECTION 1.2. FINDINGS. It is hereby ascertained, determined and declared: (a) That in order to provide long-term financing for certain municipal projects of the City initially financed on a short-term basis, the City hereby authorizes the refinancing of the Prior Debt using a portion of the proceeds of the 2003 Bonds. (b) That the City hereby authorizes that the 2003 Project be financed from a portion of the proceeds derived from the 2003 Bonds issued pursuant to this Resolution, together with all incidental and necessary costs and expenses associated therewith, as more fully set forth in Section 1.2(e) hereof. \'iv,'pb-avO1 ~SANFOI~O~\447485vOT\] 1/14/03\99gO3.426r.~94 2 Resolution No. 78-03 (c) That it is necessary and in the best economic interest of the City to acquire, construct and implement the 2003 Project in order to promote cultural, recreational and educational advancement in the City. (d) That the 2003 Project will serve a valid municipal purpose. (e) That the cost of refinancing the Prior Debt and the 2003 Project shall be deemed to include, but not be limited to, the cost of acquisition, construction, improving, renovating and equipping all or a portion of the 2003 Project, the cost of all real or personal property necessary therefor; administrative expenses; design, engineering and legal expenses; the fees and expenses of Bond Counsel; the fees and reasonable expenses of counsel for the Bank; expenses for estimates of costs; expenses for plans, specifications, licenses and permits; and such other expenses as may be necessary or incidental to the refinancing of the Prior Debt and the financing of the 2003 Project and the issuance of the 2003 Bonds herein authorized. (f) That the principal of and interest on the 2003 Bonds shall be secured solely by the Pledged Revenues and payable from the Non-Ad Valorem Revenues including such pledged revenues provided that the Owner of the 2003 Bonds shall have no lien on the Non-Ad Valorem Revenues until deposited into the Debt Service Fund. The ad valorem taxing power of the City will never be necessary or authorized to pay the principal of and interest on the 2003 Bonds, and the 2003 Bonds issued pursuant to this Resolution shall not constitute a lien upon any other property whatsoever of or in the City. (g) That the City, having previously solicited bids for the sale of the 2003 Bonds, has determined that the best qualified bid for the 2003 Bonds was delivered by the Bank. (h) That the negotiated sale of the 2003 Bonds to the Bank is in the best interest of the City by reason of the nature of and schedule for the completion of the refinancing of the Prior Debt and the 2003 Project, the aforementioned solicitation of bids and present market conditions. (i) That the Agreement, in the form attached hereto as Exhibit A, is hereby approved, with such omissions, insertions and variations as may be necessary and desirable, as evidenced by the City's execution thereof and the Mayor (or in his absence, the Vice Mayor) and City Clerk are hereby authorized to execute the same on behalf of the City. (j) That pursuant to the provisions of the Bond Resolution and this Resolution, the City may issue obligations in the future secured by Pledged Revenues. (k) The City hereby designates the 2003 Bonds to be qualified "tax-exempt obligations" within the meaning of 265(b) of the Code. (I) That any capitalized term not otherwise defined herein, shall have the meaning ascribed to such term in the Bond Resolution. SECTION 1.3 DEFINITIONS. That, in addition to terms defined elsewhere in this Resolution, the following terms shall have the following meanings unless the context otherwise clearly requires: "Bond Counsel" shall mean Greenberg Traurig, P.A. or any other firm of nationally recognized bond counsel selected by the City and acceptable to the Bank. \\v4:~-se"O1\S'N'~3EDS\44748'5'vO7\ll/]4/03\ggg03'426594 3 Resolution No. 78-03 "Bond Resolution" shall mean Resolution No. 76-99, adopted by the City Commission on December 14, 1999, as amended and supplemented. "Business Day" shall mean any day other than a Saturday or Sunday, or a day on which the Bank is closed. "City" shall mean the City of Delray Beach, Florida, a municipal corporation in the County of Palm Beach, State of Florida, and its successors and assigns. "City Commission" shall mean the duly constituted governing body of the City. "Code" shall mean the Internal Revenue Code of 1986, as amended, tile applicable Treasury Regulations promulgated thereunder and any administrative or judicial interpretations of the same published in a form on which the City may rely as a matter of law. "Determination of Taxability" shall mean the circumstance of interest paid or payable on the 2003 Bonds becoming includab{e for federal income tax purposes in the gross income of the Bondholder. A Determination of Taxability will be deemed to have occurred upon (i) the receipt by the City or Bondholder of an original or a copy of an Internal Revenue Service Technical Advice Memorandum or Statutory Notice of Deficiency which holds that any interest payable on the 2003 Bonds is includable in the gross income of the Bondholder for federal income tax purposes; (ii) the issuance of any public or private ruling of the Internal Revenue Service that any interest payable on the 2003 Bonds is includable in the gross income of the Bondholder for federal income tax purposes; or (iii) receipt by the City or Bondholder of an opinion of a Bond Counsel that any interest on the 2003 Bonds has become includable in the gross income of the Bondholder for federal income tax purposes. For all purposes of this definition, a Determination of Taxability will be deemed to occur on the date as of which the interest on the 2003 Bonds is first deemed includable in the gross income of the Bondholder for federal income tax purposes. "Interest Rate" shall mean with respect to the 2003 Bonds, unless the 2003 Bonds bear interest at the Taxable Rate or the interest rate is otherwise adjusted pursuant to Section 3.7 hereof, a fixed rate of interest on the 2003 Bonds which, shall be equal to 3.659 pement per annum. The Interest Rate shall be calculated on the basis of a 360 day year of twelve thirty-day months. "Maturity Date" shall mean, with respect to the unpaid principal of and interest on the 2003 Bonds, June 1,2019. "2003 Bonds" shall mean the not to exceed $9,685,000 aggregate principal amount of Revenue Refunding and Improvement Bonds, Series 2003, authorized by the Bond Resolution and this Resolution. "Owner," "Bondholder" or "registered holder" or any similar term shall mean the Bank or, subject to the provisions of Section 2.4 hereof, any successor registered holder of the 2003 Bonds; provided no Bondholder may be the registered owner of less than $1,000,000 in the aggregate principal amount of the 2003 Bonds. "Paying Agent" shall mean the City's Finance Department or, if the City Commission shall so determine by subsequent proceeding, any bank or trust company and any successor bank or trust company appointed by the City to act as Paying Agent hereunder. \\w13b-avO1\$ANFOROS\447485vO7\11/14/03\ggg03.426594 4 Resolution No. 78-03 "Payment Date" shall mean, with respect to interest on the 2003 Bonds, each June 1 and December 1, commencing June 1,2004 and with respect to scheduled principal on the 2003 Bonds, on each June 1, commencing June 1, 2004 in the principal amounts set forth in Section 2.2 hereof, and, prior to the Maturity Date, on any date the principal of the 2003 Bonds is optionally or mandatorily prepaid in whole or in part, provided that if such date is not a Business Day, the payment shall be made on the next succeeding Business Day. "Pledged Revenues" shall mean (I) the Non-Ad Valorem Revenues deposited in the Debt Service Fund created and established under the Bond Resolution, (ii) investment income received from the investment of moneys in the Debt Service Fund and accounts established thereunder, other than any escrow deposit trust fund established under a escrow deposit agreement, and (iii) any other moneys deposited in the Debt Service Fund or received by the Paying Agent in connection with the repayment of any Bonds. "Prior Debt" shall mean the City's Revenue Bonds, Series 1999, in the principal amount of $2,355,000, the City's Revenue Notes (Taxable), Series 2002, in the principal amount of $548,000 and the City's Revenue Bonds, Series 2002, in the principal amount of $4,929,000. "Registrar" shall mean the City's Finance Department or, if the City Commission shall so determine by subsequent proceeding, any bank or trust company and any successor batik or ~rust company appointed by the City to act as Registrar hereunder. "Resolution" shall mean this Resolution as the same may from time to time be amended and supplemented in accordance with the terms hereof. 'q'axable Rate" shall mean the Interest Rate times 1.5234. "Tax Certificate" shall mean the Arbitrage Certificate of the City executed on the date of initial delivery of the 2003 Bonds. Words importing singular number shall include the plural number and vice versa, as the case may be, and words importing persons shall include firms and corporations. SECTION 1.4 RESOLUTION AND BOND RESOLUTION CONSTITUTE CONTRACT, In consideration of the acceptance of the 2003 Bonds authorized to be issued hereunder by those who shall own the same from time to time, this Resolution and the Bond Resolution shall be deemed to be and shall constitute a contract between the City and the Bondholders and the covenants and agreements herein and therein set forth to be performed by said City shall be for the benefit, protection and security of the Bondholders. ARTICLE II AUTHORIZATION, TERMS, EXECUTION AND REGISTRATION OF 2003 BONDS SECTION 2.1 AUTHORIZATION OF 2003 BONDS. Subject and pursuant to the provisions of this Resolution and the Bond Resolution, obligations of the City of Delray Beach, Florida, to be known as "Revenue Refunding and Improvement Bonds, Series 2003" are hereby authorized to be issued in the aggregate principal amount of not exceeding Nine Million Six Hundred Eighty-Five Thousand Dollars ($9,685,000) for the purpose of refinancing the Prior Debt and financing the costs of the 2003 Project. ~ ', v4~t:~O ] \$~FO~\447485v07 \ 11/t4/03 \g~?G3.42~Sg4 5 Resolution No. 78-03 SECTION 2.2 DESCRIPTION OF 2003 BONDS. Notwithstanding the form of Bonds set forth in the Bond Resolution, the text of the 2003 Bonds shall be substantially in the form attached hereto as Exhibit B with such omissions, insertions and variations as may be necessary and desirable, as evidenced by the City's execution thereof. The 2003 Bonds (initially issued in one (1) typewritten certificate) shall be dated the date of initial issuance. The 2003 Bonds shall be issued in registered form. Unless the interest rate on the 2003 Bonds is adjusted in accordance with Section 3.7 hereof, the 2003 Bonds shall bear interest on the outstanding principal amount of the 2003 Bonds from time to time at the Interest Rate and shall be payable on each Payment Date, commencing June 1, 2003. Unless all or a portion of the Bonds is optionally or mandatorily prepaid in accordance with the terms of this Resolution, the outstanding principal of the 2003 Bonds shall be payable on each June 1 in the years and amounts set forth below: Date 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018 2019' Principal Amount $380,000 255,000 265 000 270 000 275 000 920 000 590 000 605 000 630 000 655 000 675 000 695 000 820 000 850 000 880 000 920,000 T~al $9,685,000 Final maturity Principal and interest on the 2003 Bonds shall be payable at the office of the Paying Agent (the designated corporate trust office of the Paying Agent if the City's Finance Department is not the Paying Agent). The 2003 Bonds shall be numbered in such manner as may be prescribed by the Registrar. Resolution No. 78-03 The 2003 Bonds shall be payable, with respect to interest and principal, in any coin cr currency of the United States of America which at the time of payment is legal tender for the payment of public and private debts. Subject to the next succeeding paragraph, the City may prepay the 2003 Bonds in whole or in part, at any time or from time to time, without penalty or premium, except as may be applicable by the provisions set forth below, by paying to the registered holder all or part of the principal amount of the 2003 Bonds, together with the unpaid interest accrued on the amount of principal so prepaid to the date of such prepayment. Each prepayment shall be made on such date and in such principal amount as shall be specified by the City in a written notice delivered to the registered owner not less than two (2) Business Days prior thereto. Notice having been given as aforesaid, the principal amount stated in such notice or the whole thereof, as the case may be, shall become due and payable on the prepayment date stated in such notice; and the amount of principal shall be paid (i) in case the entire unpaid balance of the principal of the 2003 Bonds is to be paid, upon presentation and surrender of the 2003 Bonds to the office of the Paying Agent (the designated corporate trust office, if the Paying Agent is not the City's Finance Department), and (ii) in case only part of the unpaid balance of principal of the 2003 Bonds is to be paid, upon presentation of such 2003 Bonds at the office of the Paying Agent (the designated corporate trust office, if the Paying Agent is not the City's Finance Oepartment) for notation thereon of the amount of principal then paid or for issuance of a replacement 2003 Bond in the principal amount not redeemed. Notwithstanding the provisions of clause (ii) above, if all of the 2003 Bonds are registered in the name of the Bank, a partial prepayment may be effected by payment to the Bank of the principal, together with unpaid interest accrued thereon, witnout surrender of the 2003 Bonds. If, on the prepayment date, funds for the payment of the principal amount to be prepaid, together with unpaid interest accrued thereon, shall not have been provided to the Paying Agent, as above provided, the principal amount of the 2003 Bonds shall continue to be outstanding and to bear interest until payment thereof at the Interest Rate. In the event of prepayment, the City may be required pay the Bank an additional fee, determined in the manner provided below, to compensate the Bank for all losses, costs and expenses incurred In connection with such prepayment. Such additional fee, if applicable, shall be equal to the present value of the difference between (1) the amount that would have been realized by the Bank on the prepaid amount for the remaining term of the 2003 Bonds at 4.99% (the Federal Reserve H.15 Statistical Release rate for fixed-rate payers in interest rate swaps for a term corresponding to the term of the 2003 Bonds, interpolated to the nearest month, if necessary, that was in effect three Business Days prior to the delivery date of the 2003 Bonds) and (2) the amount that would be realized by the Bank by reinvesting such prepaid funds for the remaining term of the 2003 Bonds at the Federal Reserve H.15 Statistical Release rate for fixed-rate payers in interest rate swaps, interpolated to *.he nearest month, that was in effect three Business Day's prior to the prepayment date; both (1) and (2) discounted at the Interest Rate. Should the present value have no value or a negative value, the City may prepay the 2003 Bonds without paying any additional fee. Should the Federal Reserve no longer release rates for fixed-rate payers in interest rate swaps, the Bank may substitute the Federal Reserve H.15 Statistical Release with another similar index. The Bank shall provide the City with a written statement explaining the calculation of the additional payment, which statement shall, in absence of manifest error, be conclusive and binding on the City. Partial prepayments may be made subject to payment of an additional fee based upon the same calculation methodology described above. Any partial prepayment shall be applied to \\Wl~C-s~ol \SA.NFOR~S\447485V07\I 1/14/03\9~O3.426594 7 Resolution No. 78-03 installments of principal in the inverse order of maturity and shall not postpone the due dates of, or relieve the amounts of, any scheduled installment payments due hereunder. SECTION 2.3 EXECUTION OF THE 2003 BONDS. The 2003 Bonds shall be executed in the name of the City by the signature of the Mayor or Vice Mayor of the City and its official seal shall be affixed thereto or imprinted or reproduced thereon and attested by the City Clerk. The signatures of the Mayor or Vice Mayor of the City and City Clerk on the 2003 Bonds may be manual or facsimile signatures. In case any one or more of the officers who shall have signed or sealed the 2003 Bonds shall cease to be such officer of the City before the 2003 Bonds so signed and sealed shall have been actually sold and delivered, such 2003 Bonds may nevertheless be sold and delivered as herein provided and may be issued as if the person who signed or sealed such 2003 Bonds had not ceased to hold such office. The 2003 Bonds may be signed and sealed on behalf of the City by such person who at the actual time of the execution of the 2003 Bonds shall hold the proper office, although at the date the 2003 Bonds shall be actually delivered such person may not have held such office or may not have been so authorized. The 2003 Bonds shall bear thereon a certificate of authentication, in the.form set forth on Exhibit B attached hereto, executed manually by the Registrar (when the City's Finance Department shall act as Registrar, the certificate of authentication shall be manually executed by the City's Finance Director). Only the 2003 Bonds as shall bear thereon such certificate of authentication shall be entitled to any right or benefit under this Resolution and no 2003 Bonds shall be valid or obligatory for any purpose until such certificate of authentication shall have been duly executed by the Registrar. The certificate of authentication of the Registrar upon the 2003 Bonds executed on behalf of the City shall be conclusive evidence that the 2003 Bonds so authenticated have been duly authenticated and delivered under this Resolution and that the Owner thereof is entitled to the benefits of this Resolution. SECTION 2.4 NEGOTIABILITY~ REGISTRATION AND CANCELLATION. The Registrar shall keep books for the registration of the 2003 Bonds and for the registration of transfers of the 2003 Bonds. The 2003 Bonds shall be transferable at the option of the registered Owner thereof to an institutional holder, but subject to the prior written approval of the City's Director of Finance (which shall not be unreasonably withheld if the intended transferee provides a suitability letter addressed to the City as to the sophistication of the investor) unless such institutional holder is a bank or trust company, or unless such institutional holder, which is not a bank or trust company, certifies in writing to the City prior to the transfer that it is an accredited investor within the meaning of Rule 501 of the Securities Act of 1933, as amended and supplemented, in which case such approval shall not be required, and upon surrender thereof at the office of the Registrar (the designated corporate trust office of the Registrar if the City's Finance Department is not the Registrar) with a written instrument of transfer satisfactory to the Registrar duly executed by the registered Owner or his duly authorized attorney. Upon the transfer of such 2003 Bond, the City shall issue in the name of the transferee a new 2003 Bond. The City, the Paying Agent and the Registrar shall deem and treat the person in whose name the 2003 Bonds shall be registered upon the books kept by the Registrar as the absolute Owner of such 2003 Bonds, whether such 2003 Bonds shall be overdue or not, for the purpose of receiving payment of, or on account of, the principal of and interest on such 2003 Bonds as the same become due and for all other purposes. All such payments so made to any such Owner or upon his/her order shall be valid and effectual to satisfy and discharge the liability ~\wpt3-s~Ol ~SAI~FORD~\447485vOT\1 ~/14/G3\~'O-3.426594 8 Resolution NO. 78-03 upon such 2003 Bonds to the extent of the sum or sums so paid, and neither the City, the Paying Agent nor the Registrar shall be affected by any notice to the contrary. In all cases in which the privilege of transferring the 2003 Bonds is exemised, the City shall execute and the Registrar shall authenticate and deliver the 2003 Bonds in accordance with the provisions of this Resolution. The 2003 Bonds surrendered in any such transfers shall forthwith be delivered to the Registrar and canceled by the Registrar in the manner provided in this Section. The City or the Registrar (if not the City's Finance Department) may require the payment of a sum sufficient to pay any tax, fee or other governmental charges required to be paid with respect to such transfer. The 2003 Bonds paid or redeemed, in whole, either at or before maturity, shall be delivered to the Registrar within a reasonable period of time after the payment or redemption is made, and such 2003 Bonds shall thereupon be canceled upon wdtten acknowledgement from the Owner that the 2003 Bonds have been paid in whole. The 2003 Bonds so canceled may at any time be destroyed by the Registrar, who shall execute a certificate of destruction in duplicate by the signature of one of its authorized officers describing the 2003 Bonds, and one executed certificate shall be filed with the City and the other executed certificate shall be retained by the Registrar (if not the City's Finance Department). SEC'rlON 2.5 MUTILATED, DESTROYED~ STOLEN OR LOST 2003 Bonds. In case any 2003 Bond shall become mutilated, destroyed, stolen or lost, the City shall execute and the Registrar shall authenticate and deliver a new 2003 Bond of like date, maturity and denomination as the 2003 Bond so mutilated, destroyed, stolen or lost; provided that, in the case of any mutilated 2003 Bond, such mutilated 2003 Bond shall first be surrendered to the City and, in the case of any lost, stolen or destroyed 2003 Bond, there shall first be furnished to the City and the Registrar (if not the City's Finance Department) evidence of such loss, theft, or destruction satisfactory to the City and the Registrar, together with indemnity satisfactory to them. In the event the 2003 Bonds shall be about to mature or have matured, instead of issuing a duplicate 2003 Bond, the City may pay the same without surrender thereof. The City and the Registrar (if not the City's Finance Department) may charge the Owner of such 2003 Bond their reasonable fees and expenses in connection with this transaction. Any 2003 Bonds surrendered for replacement shall be canceled in the same manner as provided in Section 2.4 hereof. Any such duplicate 2003 Bond issued pursuant to this Section shall constitute additional contractual obligations on the part of the City, whether or not the lost, stolen or destroyed 2003 Bond be at any time found by anyone, and such duplicate 2003 Bonds shall be entitled to equal proportionate benefits and rights as to lien on the source and security for payment from Pledged Revenues with the 2003 Bond issued hereunder. SECTION 2.6 CONDITIONS FOR ISSUANCE OF THE 2003 BONDS. Prior to the issuance of the 2003 Bonds, the City shall comply with the following conditions: (a) Deliver to the Bank a fully executed Tax Certificate; and (b) Deliver to the Bank a copy of a completed and executed Form 8038-G to be filed by the City with the Internal Revenue Service; and (c) Deliver to the Bank an opinion of Bond Counsel, satisfactory to the Bank, regarding the due authorization, execution, delivery, validity and enforceability of the 2003 \\~1 ,,$ANFORDS\ 447485vO7 \ 11/14/03\99903,426594 9 Resolution No. 78-03 Bonds and the due adoption of this Resolution (enfomeability of such instruments may be subject to standard bankruptcy exceptions and the like) and the exclusion of interest on the 2003 Bonds from gross income for federal income tax purposes, that the 2003 Bonds are not specified "private activity bonds" within the meaning of Section 57(a)(5) of the Code and, therefore, the interest on the 2003 Bonds will not be treated as a preference item for purposes of computing the alternative minimum tax imposed by Section 55 of the Code (however, a portion of the interest on the 2003 Bonds owned by corporations may be subject to the federal alternative minimum tax which is based in part on adjusted current earnings). Such opinion shall also state that the 2003 Bonds are "qualified tax-exempt obligations" within the meaning of Section 265(b) of the Code; and (d) Deliver to the Bank an opinion of the City Attorney, satisfactory to the Bank, regarding the due authorization, execution, delivery, validity and enfomeability of the 2003 Bonds, the Agreement and the due adoption of this Resolution and the Bond Resolution (enforceability may be subject to standard bankruptcy exceptions and the like); and (e) Deliver to the Bank one or more certificates of the City in form satisfactory to the Bank certifying, among other things, that the City is in compliance with the term of the Bond Resolution. SECTION 2,7 INCORPORATION OF TERMS OF BOND RESOLUTION; EXCEPTIOI',I Unless otherwise provided in this Resolution, the terms and provisions of the Bond Resolution applicable to the 2003 Bonds are incorporated herein by reference and such terms shall have the same effect as if expressly stated herein. ARTICLE III COVENANTS, FUNDS AND APPLICATION THEREOF SECTION 3.1 2003 BONDS NOT TO BE INDEBTEDNESS OF THE CITY. The 2003 Bonds shall not be or constitute an indebtedness of the City within the meaning of any constitutional, statutory or other limitation of indebtedness, but shall be secured solely by the Pledged Revenues and payable from Non-Ad Valorem Revenues including the Pledged Revenues. No Bondholder shall ever have the right to compel the exercise of the ad valorem taxing power of the City, or taxation in any form of any real property therein, to pay said 2003 Bonds or the interest thereon. The pledge of the Pledged Revenues will not constitute a lien upon any property of the City including any Non-Ad Valorem Revenues which have not been deposited into the Debt Service Fund. SECTION 3.2 2003 BONDS. The lien of the 2003 Bonds on the Pledged Revenues shall be on parity with any of the Bonds issued pursuant to the requirements of the Bond Resolution. SECTION 3.3 2003 BONDS SECURED BY PLEDGE OF PLEDGED REVENUES. From and after the issuance of any of the 2003 Bonds, and continuing until the payment of all 2003 Bonds as to principal and interest, the Pledged Revenues shall continue to be pledged for the prompt payment of principal of and interest on said 2003 Bonds. SECTION 3.4 COVENANTS OF THE CITY. As long as any of the principal of or interest on any of the 2003 Bonds shall be outstanding and unpaid, or until there shall have been set apart in the Debt Service Fund in accordance with Section 4.H of Article III of the Bond Resolution a sum sufficient to pay, when due, the entire principal of the 2003 Bonds remaining \\wpb-s~OI \$ANFORDS\44748*5*vO7\I 1/14/03\99~03.426504 1 0 Resolution No. 78-03 unpaid, together with interest accrued and to accrue thereon, the City covenants with the Bondholders as follows: (a) Tax Covenants Relating to the Internal Revenue Code of 1986, as amended. (1) In order to maintain the exclusion from gross income for purposes of federal income taxation of interest on the 2003 Bonds, the City covenants to comply with each requirement of the Code. In furtherance of the covenant contained in the preceding sentence, the City agrees to continually comply with the provisions of the Tax Certificate, as such certificate may be amended from time to time, as a source of guidance for achieving compliance with the Code. (2) The City covenants and agrees with the Bondholders that the City shall not take any action or omit to take any action, which action or omission, if reasonably expected on the date of initial issuance and delivery of the 2003 Bonds, would cause any of the 2003 Bonds to be "private activity bonds" or "arbitrage bonds" within the meaning of Sections 141 (a) and 148(a), respectively, of the Code. (3) The City shall make any and all payments required to be made to the United States Department of the Treasury in connection with the 2003 Bonds pursuant to Section 148(f) of the Code. (4) Notwithstanding any other provision of this Resolution to the contrary, so long as necessary in order to maintain the exclusion from gross income for purposes of federal income taxation of interest on the 2003 Bonds, the covenants contained in this Section shall survive the payment of the 2003 Bonds and the interest thereon, including any payment or discharge thereof pursuant to Section 4.H of the Bond Resolution. (b) Debt Service Fund:. The Debt Service Fund created and established under the Bond Resolution shall constitute a trust fund for the benefit of the Bondholder and shall be held by the City and shall be kept separate and distinct from all other funds of the City, and shall be used only for the purpose and in the manner provided in this Resolution. Notwithstanding the provisions of the next preceding sentence, the City may deposit the Pledged Revenues in a single bank account for the City, provided that adequate accounting procedures are maintained to reflect and control the restricted allocations of the funds on deposit therein for the various purposes of such funds. The designation and establishment of the Debt Service Fund in and by the Bond Resolution shall not be construed to require the establishment of any completely ~ndependent self-balancing fund, as such term is commonly defined and used in governmental accounting, but rather is intended solely to constitute an allocation of certain revenues of the City for cedain purposes and to establish certain priorities for application of such revenues as provided herein. Any excess amounts remaining in the Debt Service Fund after payment has been made on the 2003 Bonds on any Payment Date, may be withdrawn and deposited at the direction of the City to be used for any lawful municipal purpose. Moneys on deposit in the Debt Service Fund may be invested in Permitted Investments as authorized pursuant to the Bond Resolution, provided such investments mature not later than the next succeeding Payment Date. Subject to the terms and provisions of the Code, all income and earnings received from the investment and reinvestment of the moneys on deposit in the \\~l\SANFORDS\447485vOT\ll/~4/03\qqq03.42~94 1 1 Resolution No. 78-03 Debt Service Fund shall remain on deposit in the Debt Service Fund and be used in the same manner as other moneys on deposit therein. (c) Non-Ad Valorem Revenues. The City will not repeal, amend or modify any resolution or ordinance or take any action within its power to take relating to the imposition and collection of Non-Ad Valorem Revenues in any manner so as to impair or adversely affect in any manner the availability of such Non- Ad Valorem Revenues to pay debt service on the 2003 Bonds as provided herein. (d) Budget and Other Financial Information. The City shall demonstrate in each annual budget that there are sufficient Non-Ad Valorem Revenues to pay the principal of and interest on the 2003 Bonds coming due in such Fiscal Year and to meet the City's other obligations hereunder and under the Bond Resolution. The City shall, upon the request of the Bank, provide the Bank with a copy of its annual budget within thirty (30) days of adoption, a copy of its Comprehensive Annual Financial Report, when available and, upon the request of the Bank, such other financial information regarding the City as the Bank may reasonably request. (e) The City shall comply with the terms of the Bond Resolution. SECTION 3.5 REMEDIES OF BONDHOLDER. Subject to the equal rights of any registered owner of Bonds issued pursuant to the provisions of the Bond Resolution, should the City default in any obligation created by this Resolution, the Bondholders may, in addition to any remedy set forth in this Resolution, either at law or in equity, by suit~ action, mandamus or other proceeding in any court of competent jurisdiction, protect and enforce any and all rights under the laws of the State of Florida, or granted and contained in this Resolution, and may enforce and compel the performance of all duties required by this Resolution, or by any applicable statutes to be performed by the City or by any officer thereof. The City hereby agrees with the Bondholders that the filing of any bankruptcy or insolvency under any federal or state law by or against the City which is not dismissed with prejudice within thirty (30) days of such filing shall give the Bondholders the right to exercise any of the remedies provided to them under this Section 3.5, and Section 4.G of Article III of the Bond Resolution. Notwithstanding anything in this Section 3.5 to the contrary the Bondholders' right to exercise any remedy permitted hereunder shall be consistent with the rights afforded all registered owners of Bonds issued pursuant to the provisions of the Bond Resolution. SECTION 3.6 APPLICATION OF 2003 BONDS PROCEEDS. A portion of the proceeds of the 2003 Bonds shall be used to refinance the Prior Debt. The balance of the proceeds of the 2003 Bonds shall be used to finance the costs of the 2003 Project. The City may replace all or a portion of the 2003 Project for any other capital projects permitted under the Act; provided that Bond Counsel shall first deliver to the City and the Bank an opinion to the effect that such substitution will not adversely affect the exclusion of interest on the 2003 Bonds from gross income for federal income tax purposes. SECTION 3.7 ADJUSTMENTS TO INTEREST RATE. Upon a Determination of Taxability the interest rate on the Bonds shall be converted to the Taxable Rate. In addition, the City shall also pay to the Bank any additions to tax, penalties, and any interest on the 2003 Bonds and any arrears in interest resulting from a Determination of Taxability. Any penalties in the form of interest or otherwise shall be paid by the City on the next succeeding Payment Date. \ \ v43t3-~t~O 1 \$AN~OI~3 \~7~5v07 \ 1 ] / ~ 4/03 ~,qqgO3.a2~5~4 12 Resolution No. 78-03 The Interest Rate shall also be adjusted automatically as of the effective date of any change in the maximum corporate tax rate, presently 35%, or in the Preference Reduction Rate (hereinafter defined), presently 20%, based upon the following calculations. Provided, however, if the 2003 Bonds are not a "qualified tax-exempt obligation" within the meaning of Section 265 (b) (3) of the Code on the date of delivery of the 2003 Bonds, or if the 2003 Bonds at any time subsequent to delivery of the 2003 Bonds no longer qualify as a "qualified tax-exempt obligation," then the Preference Reduction Rate shall be adjusted as of the date of delivery of the 2003 Bo:~ds or as of such subsequent date, as the case may be. Upon the occurrence of any of the foregoing events, the Interest Rate shall be adjusted to the product obtained by multiplying the Interest Rate by a fraction, the numerator of which is equal to the sum of (i) the product of the Fully Taxable Equivalent (hereinafter defined) times one minus the maximum corporate tax rate in effect as of the day of adjustment, plus (ii) the TEFRA Adjustment (hereinafter defined) in effect as of the date of adjustment, and the denominator of which is equal to the sum of (i) the product of the "Fully Taxable Equivalent" times one minus the maximum corporate tax rate in effect as of the date of delivery of the 2003 Bonds plus (ii) the TEFRA Adjustment (hereinafter defined) in effect as of the date of delivery of the 2003 Bonds. For the purpose hereof: (1) 'q'EFRA Adjustment' means an adjustment equal to the product of the following: Cost of Funds multiplied by the applicable maximum corporate tax rate multiplied by the applicable Preference Reduction Rate; (2) "Cost of Funds" means one hundred (100) multiplied by a fraction, the numerator of which is equal to the total interest expense of SunTrust Banks, Inc., for the immediately preceding tax year and the denominator of which is equal to the average total assets of SunTrust Banks, Inc., but at no time will be determined to exceed the cost of Fed Funds; (3) "Preference Reduction Rate" means the percentage reduction to be applied to the amount allowable as a deduction under Chapter I of the Code with respect to any financial institution preference item (as such term is defined in Section 291(e) of the Code); and (4) "Fully Taxable Equivalent" means the Interest Rate times 1.5234 expressed as a number and not as a percentage. ARTICLE IV MISCELLANEOUS PROVISIONS SECTION 4.1 MODIFICATION OR AMENDMENT. No modification or amendment of this Resolution or of any resolution amendatory thereof or supplemental thereto, may be made without the consent in writing of all of the Bondholders. SECTION 4.2 ADDITIONAL AUTHORIZATION. The Mayor, the Vice-Mayor, the City Manager, the Finance Director, the Treasurer and any other proper official of the City, be and each of them is hereby authorized and directed to execute and deliver any and all documents and instruments and to do and cause to be done any and all acts and things necessary or proper for carrying out the transactions contemplated by this Resolution. SECTION 4.3 SEVERABILITY OF INVALID PROVISIONS. If any one or more of the covenants, agreements or provisions of this Resolution should be held contrary to any express provision of law or contrary to the policy of express law, though not expressly prohibited, or against public policy, or shall for any reason whatsoever be held invalid, then such \ \v~ob-s~O1 \ SANFORDS\ 44748,%O7 \ 11/14/03\99003,426594 13 Resolution No. 78-03 covenants, agreements or provisions shall be null and void and shall be deemed separate from the remaining covenants, agreements or provisions, and shall in no way affect the validity of any of tho other provisions of this Resolution or of the 2003 Bonds issued hereunder. SECTION 4.4 REPEALER. All resolutions and orders, or parts thereof, in conflict herewith are, to the extent of such conflict, hereby repealed, and this Resolution shall take effect upon its passage in the manner provided by law. In the event of a conflict between the provisions of this Resolution and the Bond Resolution, the provisions of this Resolution shall control. SECTION 4.5 EFFECTIVE DATE. This Resolution shall be effective immediately upon its adoption. PASSED AND ADOPTED IN special session on this 18th day of November, 2003. ATTEST: By: City Clerk The foregoing resolution is hereby approved by me as to form this 18th day of November, 2003. THE CITY OF DELRAY BEACH, FLORIDA By: Mayor By: City Attorney \\Wpb-s~0]\SANFO~\44748~'vOT\I 1/14/03\q~O3'42~594 14 Resolution No. 78-03 EXHIBIT A BOND PURCHASE AGREEMENT THIS BOND PURCHASE AGREEMENT (the "Agreement") dated December _, 2003, by and between SunTrust Bank, a banking corporation organized under the laws of the State of Georgia (herein the "Bank") and the City of Delray Beach, Florida, a municipal corporation of the State of Florida (together with its successors and assigns, the "City~'). WITNESSETH: WHEREAS, pureuant to the Act, as such term is defined in Resolution No. 76-99, as supplemented by Resolution No. 78-03 (collectively, the "Resolution'), adopted by the City Commission of the City on December 14 1999 and November 18, 2003, respectively, the City authorized the issuance of not to exceed $9,685,000 in aggregate principal amount of City of Delray Beach, Florida Revenue Refunding and Improvement Bonds, Series 2003 (the "Bonds"); and WHEREAS, any capitalized term used in this Agreement and not otherwise defined shall have the meaning ascribed to such term in the Resolution; and WHEREAS, the Bank has reviewed the Resolution and hereby finds the terms acceptable; and WHEREAS, on this date, the City has, pursuant to previsions of the Act, the Resolution and this Agreement, agreed to issue and sell to the Bank and the Bank has, pursuant to the terms of this Agreement and the terms and provisions of the Resolution, agreec~ to pumhase, all but not less than ali, of the Bonds; and WHEREAS, the City and the Bank have heretofore negotiated the terms of the Bonds and the Resolution and by execution of this Agreement each will have confirmed that such are acceptable. NOW THEREFORE, the City and the Bank hereby agree as follows: 1. Pumhase and Sale. Upon the terms and conditions set forth herein and in the Bonds and the Resolution and upon the representations and warranties of the City set forth in the Resolution, the Tax Certificate and other closing certificates, the City agrees to sell on this date the Bonds on a negotiated basis to the Bank and the Bank agrees on this date to purchase, with immediately available funds, all but not less than all, of the Bonds. The purchase price for the Bonds shall.be $9,685,000, which purchase price is equal to the principal amount of the Bonds. Since the dated date of the Bonds is the date hereof, there will be no accrued interest as part of the purchase price. If the principal amount of Bonds sold to the Bank pursuant to this paragraph is less than $9,685,000.00, the Bank agrees to purchase any additional Bonds under the same terms as the Bonds so issued (except the dated date) up to a total aggregate amount of $9,685,000. 2. Private Placement Neqotiated Sale. The Bank hereby acknowledges that the purchase of the Bonds frem the City was on a negotiated private placement basis and that there has been no offering document prepared by the City in connection with such sale. \\wpt>-a~Ol\SANFORDS\447485v07\11/14/03\gqq03.4265~4 Resolution No. 78-03 A-1 3. Conditions for Pumhase. The Bank's agreement to pumhase the Bonds on this date is subject to the satisfaction of the conditions set forth in Section 2.6 of Resolution No. 78-03. The Bank's purchase of the Bonds will constitute full evidence that such conditions have been satisfied or waived. 4. Section 218.385 Flodda Statutes On or before the pumhase of the Bonds, the Bank has provided the City with the disclosure and truth-in-bonding statements required by and in accordance with, Section 218.385, Florida Statutes, as amended and supplemented. The above-referenced statements are attached to this Agreement as Schedule A. 5. Expenses. As between the City and the Bank, the Bank shall not be liable for any expenses incurred by the City in connection with the issuance of the Bonds. The Bank represents to the City that it has not employed or used the services of any attorney or other professional in connection with the Bank's negotiations with the City and its purchase of the Bonds other than Adorno & Yoss, P.A., which fee, in the amount of $2,500 shall be paid by the City. 6. The City and the Bank, for mutual consideration, each acknowledged to be received by the other party hereto, mutually and willingly waive the right to a trial by a jury in connection with any and all claims by any party hereto against the other arising from or in connection with the transactions contemplated by this Agreement or the Resolution. 7. Effectiveness. This Agreement shall become effective upon the execution by the appropriate officials of the City and the Bank. 8. Headinqs. The headings set forth in this Agreement are inserted for convenience only and shall not be deemed to be a part hereof. 9. Amendment. No modification, alteration or amendment to this Agreement shall be binding upon any party until such modification, alternation or amendment is reduced to writing and executed by all parties hereto. 10. Governin.q Law. The laws of the State of Florida shall govern this Agreement. 11. Counterparts. This Agreement may be signed in any number of counterparts with the same effect as if the signatures thereto and hereto were signatories upon the same instrument. Resolution No. 78-03 A-2 IN WITNESS WHEREOF, the City and the Bank has caused this Agreement to be executed by its respective duly authorized officers all as of the date hereof. SUNTRUST BANK (SEAL) By: Title: Date: December 2, 2003 CITY OF DELRAY BEACH, FLORIDA (SEAL) By: Title: Date: December 2, 2003 Resolution No. 78-03 A-3 No. R- EXHIBIT B FORM OF 2003 BOND $9,685,000 UNITED STATES OF AMERICA STATE OF FLORIDA CITY OF DELRAY BEACH, FLORIDA REVENUE REFUNDING AND IMPROVEMENT BOND, SERIES 2003 Maturity Date June 1,2019 Dated Date December ~ 2003 Interest Rate 3.659% REGISTERED OWNER: .............. SUNTRUST BANK ..................... PRINCIPAL AMOUNT:--NINE MILLION SIX HUNDRED EIGHTY-FIVE THOUSAND DOLLARS ($9,685,000.00) .... KNOW ALL MEN BY THESE PRESENTS, that the City of Delray Beach (the "City") in Palm Beach County, Florida, for value received, hereby promises to pay from the soumes herein mentioned, to the Registered Owner specified above or registered assigns on the Maturity Date specified above or earlier upon mandatory or optional prepayment as provided below, upon the presentation and surrender hereof at the City's Finance Department or (if so determined by the City) the designated trust office of the bank or trust company appointed by the City to act as paying agent (said City's Finance Department or such bank o~ trust company and any bank or trust company becoming successor paying agent being herein called the "Paying Agent"), the Principal Amount outstanding from time to time and not previously prepaid with interest thereon at the stated interest rate calculated on the basis of a 360-day year of 12 thirty-day months, on each Payment Date in the manner specified in the within described Bond Resolution to the registered owner. The interest rate on the Bond may be converted to a Taxable Rate or is otherwise adjusted as provided in the Bond Resolution. The principal amount and accrued interest thereon is payable in any coin or currency of the United States of America, which, on the date of payment thereof, shall be legal tender for the payment of public and private debts. This Bond is authorized to be issued in a principal amount of $9,685,000 under the authority of and in full compliance with the Constitution and statutes of the State of Florida, including, particularly, Chapter 166, Florida Statutes, as amended and supplemented, the Charter of the City of Delray Beach, Florida, as amended and supplemented, and other applicable provisions of law (the "Act"), and Resolution No. 76-99 duly adopted on December14, 1999 and Resolution No. 78-03 duly adopted on November 18, 2003 (collectively, the "Bond Resolution"), as such resolutions may be further amended and supplemented from time to time, and is subject to all terms and conditions of said resolution. Any term used in this Bond and not otherwise defined, shall have the meaning ascribed to such term in the Bond Resolution. It is hereby certified and recited that all acts, conditions and things required to exist, to happen, and to be performed, precedent to and in the issuance of this Bond exist, have happened and have been performed in regular and due form and time as required by the Laws \\v43t>s~01\$ANFOEOS\447485vOT\l]/t4/03\g~33.42~594 Resolution No. 78-03 and Constitution of the State of Florida and the Charter of the City applicable thereto, and that the issuance of this Bond, is in full compliance with all constitutional or statutory limitations or provisions. This Bond shall not be valid or become obligatory for any purpose or be entitled to any security or benefit under the Bond Resolution until the certificate of authentication hereon shall have been signed by an authorized officer of the Registrar. This Bond shall bear interest at the Interest Rate, as such rate may be adjusted in accordance with the terms of the Bond Resolution. Upon the occurrence of a Determination of Taxability this Bond shall bear interest at the Taxable Rate. Interest shall be payable on June 1, 2004, and each December 1 and June 1 thereafter and principal on the Bonds, unless prepaid, shall be payable on each June 1 in the amounts set forth below; provided that if such date is not a Business Day, the payment shall be made on the next succeeding Business Day (each a "Payment Date"). The principal of and interest on the Bonds shall be secured solely by the Pledged Revenues (as defined in the Bond Resolution), and payable from the Non-Ad Valorem Revenues (as such term is defined in the Bond Resolution) including the Pledged Revenues, all in the manner provided in the Bond Resolution. Date 20O4 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018 2019' Final maturity Principal Amount $380 000 255 000 265 000 270 000 275 000 920 000 590 000 605 000 630 000 655 000 675,000 695,000 820,000 850,000 880,000 920,000 Total $9,685,000.00 Subject to the terms and provisions of the Section 2.2 of Resolution No. 78-03 of the City, the City may prepay this Bond in whole or in part, at any time or from time to time, without ~W,p~-,,,,O~SANFOr~s~,~Ta~,,07~,/~4/03~W~O3.4~5~4 Resolution NO. 78-03 B-2 penalty or premium, except as provided below, by paying to the registered holder all or part of the principal amount of this Bond, together with the unpaid interest accrued on the amount of principal so prepaid to the date of such prepayment. Each prepayment shall be made on such date and in such principal amount as shall be specified by the City in a written notice delivered to the registered owner not less than two (2) Business Days prior thereto. Notice having been given as aforesaid, the principal amount stated in such notice or the whole thereof, as the case may be, shall become due and payable on the prepayment date stated in such notice; and the amount of principal shall be paid (i) in case the entire unpaid balance of the principal of this Bond is to be paid, upon presentation and surrender of such Bond to the office of the Paying Agent (the designated corporate trust office, if the Paying Agent is not the City's Finance Department), and (ii) in case only part of the unpaid balance of principal of this Bond is to be paid, upon presentation of such Bond at the office of the Paying Agent (the designated corporate trust office, if the Paying Agent is not the City's Finance Department) for notation thereon of the amount of principal then paid or for issuance of a replacement Bond in the principal amount not redeemed. Notwithstanding the provisions of clause (ii) above, if all of the Bonds are registered in the name of the Bank, a partial prepayment may be effected by payment to the Bank of the principal, together with unpaid interest accrued thereon, without surrender of this Bond. If, on the prepayment date, funds for the payment of the principal amount to be prepaid, together with unpaid interest accrued thereon, shall not have been provided to the Paying Agent, as above provided, the principal amount of this Bond shall continue to be outstanding and to bear interest until payment thereof at the Interest Rate. In the event of such prepayment, the City may be required to pay to SunTrust Bank, as the registered owner of the Bonds (herein, the "Bank"), an additional fee, determined in the manner provided below, to compensate the Bank for all losses, costs and expenses incurred in connection with such prepayment. Such additional fee shall be equal to the present value of the difference between (1) the amount that would have been realized by the Bank on the prepaid amount for the remaining term of the Bonds at 4.99% (the Federal Reserve H.15 Statistical Release rate for fixed-rate payers in interest rate swaps for a term corresponding to the term of the Bonds, interpolated to the nearest month, if necessary, that was in effect three Business Days prior to the delivery date of the Bonds) and (2) the amount that would be realized by the Bank by reinvesting such prepaid funds for the remaining term of the 2003 Bonds at the Federal Reserve H.15 Statistical Release rate for fixed-rate payers in interest rate swaps, interpolated to the nearest month, that was in effect three Business Day's prior to the prepayment date; both (1) and (2) discounted at the Interest Rate stated above. Should the present value have no value or a negative value, the City may prepay the Bonds with no additional fee. Should the Federal Reserve no longer release rates for fixed-rate payers in interest rate swaps, the Bank may substitute the Federal Reserve H.15 Statistical Release with another similar index. The Bank shall provide the City with a written statement explaining the calculation of the additional payment due, which statement shall, in absence of manifest error, be conclusive and binding. Partial prepayments may be made subject to payment of an additional fee based upon the same calculation methodology described above. Any partial prepayment shall be applied to installments of principal in the inverse order of maturity and shall not postpone the due dates of, or relieve the amounts of, any scheduled installment payments due hereunder. This Bond shall not be and shall not constitute an indebtedness of the City within the meaning of any constitutional, statutory, charter or other limitations of indebtedness but shall be secured solely by the Pledged Revenues and payable from the Non-Ad Valorem Revenues which includes the Pledged Revenues. No Holder of this Bond shall ever have the right to ~,\wpb-~,'g~\SAN~\447485v07\11/14/03\99~03.426594 Resolution No. 78-03 B-3 compel the exercise of ad valorem taxing power of the City, or taxation in any form of any real property therein to pay the Bond or the interest thereon. No holder shall have a lien on any Non-Ad Valorem Revenues until deposited into the Debt Service Fund created and established under the Bond Resolution. The terms and provisions of the Bond Resolution are incorporated in this Bond as though such terms and provisions have been set out in full herein. IN WITNESS WHEREOF, the City of Delray Beach, Florida, has caused this Bond to be signed by its Mayor, either manually or with his facsimile signature, and the seal of the City Commission of the City of Delray Beach, Florida, to be affixed hereto or imprinted or reproduced hereon, and attested by the Clerk of the City, either manually or with her facsimile signature, and this Bond to be dated the Dated Date set forth above. (SEAL) CITY OF DELRAY BEACH, FLORIDA ATTEST: By: Clerk of the City of Detray Beach, Florida By: Mayor Resolution No. 78-03 B-4 FORM OF CERTIFICATE OF AUTHENTICATION Date of Authentication: December ,2003 This Bond is the Bond delivered pursuant to the within mentioned Resolution. CITY OF DELRAY BEACH Finance Department, as Registrar By: Authorized Officer Resolution No. 78-03 B-5 ASSIGNMENT FOR VALUE RECEIVED the undersigned sells, assigns and transfers unto (please print or typewrite name, address and tax identification number of assignee) the within Bond and all rights thereunder, and hereby irrevocably constitutes and appoints , Attorney to transfer the within Bond on the books kept for registration thereof, with full power of substitution in the premises. Dated: Signature Guaranteed: In the presence of: NOTICE: The signature to this assignment must correspond with the name as written upon the face of the within Bond in every particular, without alteration or enlargement, or any change whatever. Resolution No. 78-03 B-6 EXHIBIT C 2003 Project (1) (2) Acquisition, construction and equipping of a new library facility, including all facilities relating thereto. All related, necessary and incidental engineering, design, labor, contingency and costs of issuing 2003 Bonds. Resolution No. 78-03 C-I Request to be placed on: Consent Agenda When: November 18, 2003 Description of agenda Item: AGENDA REQUEST Date: November 10, 2003 Special Agenda Workshop Agenda Approve a $9,685,000 note agreement with SunTrust, N.A. SunTrust will provide financing in the amount of $9,685,000 for a 15.5 year term at a rate of 3.659%. ORDINANCE/RESOLUTION REQUIRED: Draft of Resolution Attached: YES NO X YES NO Recommendation: Recommend approval of the above. Determination of Consistency with Compre~nslve Plan: '~' ~" City Attorney Review/Recommendation (If applicable): Budget Director Review (required on all items involving expenditure of funds): Funding available: (n/a) Yes Funding alternatives (if applicable): Account Number: Account Description: Account Balance: City Manager Review: Approved for Agenda: Hold Until: Agenda Coordinator Review: Received: Action: No Approved: Disapproved: P.O.# [ITY OF nELRflY BEIi[H CITY ATTORNEY'S OFFICE 200 NW Jst AVENUE · DELRAY BEACH, FLORIDA 33444 TELEPHONE 561/243-7090 · FACSIMILE 561/278-4755 DELRAY BEACH To: MEMORANDUM From: Date: Re: City Commission Susan Ruby, City Attorney November 11, 2003 Settlement offer - Martinez v. City of Delray Beach This case arose from an accident which occurred on January 8, 2002. At that time, Mr. Martinez' vehicle was struck in the rear by a vehicle operated by a City police officer. This accident occurred at or near the intersection of West Atlantic Avenue and SW 2® Avenue, Delray Beach. One month prior to our accident, Mr. Martinez was involved in an accident sustaining a herniated disc in his lower back among other injuries to the neck and head. Mr. Martinez has alleged that our accident, approximately one month later, aggravated those conditions. Mr. Martinez thereafter commenced an action involving both defendants from both actions. The Plaintiffs' attorney, on behalf of his clients, has offered to settle this case with the City for $5,000.00, inclusive of attorney's fees and costs. The City Attorney's Office and the City adjuster recommends acceptance of this offer subject to the receipt of appropriate releases. By copy of this memo to David Harden, please place this item on the November 18th City Commission agenda. If you should have any questions, do not hesitate or Catherine M. Kozol. CC: David Harden, City Manager Barbara Garito, City Clerk Catherine M, Kozol, Police Legal Advisor [ITY OF DELRla¥ BEI:IrH CITY ATTORNEY'S OFFICE DELRAY BEACH ~ To: Ag. America City ~3 2oo~ Date: 200 NW 1st AVENUE · DELRAY BEACH, FLORIDA 33444 TELEPHONE 561/243-7090 · FACSIMILE 561/278-4755 MEMORANDUM City Commission Susan Ruby, City Attorney November 11, 2003 Subject: Settlement Offer - Ernesto Fiqueroa v. City of Delray Beach This case arose from an arrest based on a 17 year old outstanding warrant out of Miami for Faustino Colon Figueroa The arrest occurred on July 18, 2002. Mr. Figueroa's vehicle appeared suspicious to our officer. Upon running the tag on Mr. Figueroa's vehicle, he noticed there was an outstanding warrant on Mr. Figueroa for his arrest on worthless check charges. Mr. Figueroa, who then returned to his vehicle, was questioned by our officer and basically met the description given in the warrant. Our officer transported him back to the Police Department. It was later determined that Mr. Figueroa was not the person mentioned in the warrant. Mr. Figueroa was detained for approximately and hour and a half and then released. The Plaintiffs' attorney, on behalf of his client, has offered to settle this case with the City for $50,000.00, inclusive of attorney's fees and costs. The City Attorney's Office and the City adjuster recommend denial of this offer. By copy of this memo to David Harden, please place this item on the November 18th City Commission agenda. If you should have any questions, do not hesitate to contac~.m~atherineM. Kozol. cc: David Harden, City Manager Barbara Gadto, City Clerk Catherine M. Kozol, Police Legal Advisor TO. FROM: SUBJECT: MEMORANDUM MAYOR AND C~TY COMMISSIONERS CITY MANAGER ~ AGENDA ITEM # O~ G - REGULAR MEETING OF NOVEMBER 18, 2003 DATE: APPOINTMENTS TO THE EDUCATION BOARD NOVEMBER 14, 2003 The Education Board currently has two vacancies for students with a two year term ending July 3 l, 2005 and the other for a one year term ending July 31, 2004. Members of the Education Board must be a residem of the City, own property, own or operate a business within the City or have a child artencling Delray Beach public schools. It is the intent, whenever possible, that the membership include persons with a background in business, real estate and/or education. The following students have submitted applications and would like to be considered for appointment. Sendy Auguste 11~ grade Claarline Guillanme 11m grade Emmanuel MacDonald 12m grade Gemina Masson 11m grade Jessica Thomas 12t~ grade Based on the rotation system, the appointments will be made by Commissioner Levinson (Seat # 3) for a two year term ending July 31, 2005 and Commissioner McCarthy (Seat # 4) for a one year term ending July 31, 2004. Recommend appointment of two (2) student members to the Education Board for a term ending July 31, 2005 and July31, 2004. 09/~4/03 · ED 07:52 F~ 561 243 3774 CITY CLERK ~]002 CITY OF DELRAY BEACH BOARD MEMBER APPLICATION 09/24/0~ WE~ 07:52 FA~ §$! 243 3774 cri-/ CLERK CITY OF DELRAY BEACH 2. Home submite, ed. It will be the applkaat's tml~ma'la'lity to en$x~ that a eun~t a~ i$ on file. 09/24/05 WED 07:52 FAX 561 243 3774 CITY CLERK CITY OF DELRAY BEACH BOARD MEMBER APPLICATION 1993 2001 ~002 Home Address: ~y rehted pwfcss;o~ c~fi~u~s ~ ~c~es ~ ~u ho~: . your p~sen~ or most r~t ~, ~ ~n: Note: This appli~ion ~ =main on file in the City Cl=k's (NS~ for a p~iod of 2 ~ ~.= ~ &tei~ w~ 09/24/03 WED 07:52 FAX 561 243 3774 CITY CLERK ~ 1~002 CITY OF DELRAY BEACH BOARD MEMBER APPLICATION subnxlt~ccL It ~iil i~ th~ ~c~h~lnt', xesponsa'hility to enm~ lhatA c.n~nt s BOARD MEMBER APPLICATION -- I O. ~st ~y reh~d p~cs~ ~s ~ ~c~e~ ~u bald: , 1 I. G~c ~r p~sC~ oI most r~ ~, ~ ~m sulx~:'r~d. It w~l bc the II~cint's g~:)onsib~ m ~ lhat · C,,,~.~C tJ)l~I/on/s On file. TO: FROlVI~ SUBJECT: DATE: MEMORANDUM MAYOR AND CITY COMMISSIONERS CITY MANAGER ~ AGENDA ITEM # ~ - REGULAR MEETING OF NOVEMBER 18, 2003 APPOINTMENTS TO THE NUISANCE ABATEMENT BOARD NOVEMBER 14, 2003 Ms. Donna Russo submitted her resignation effective June 18, 2003 creating a vacancy for a regular member for an unexpired term ending March 31, 2004. Mr. John lVfiller, Jr. was appointed to the Historic Preservation Board creating a vacancy for a regular member for an unexpired term ending March 31, 2005. Mr. Mark Behar was appointed to the Code Enforcement Board creating a vacancy for an alternate member for an unexpired term ending March 31, 2005. Mrs. Eileen Marks is currently an alternate member and would like to be considered as a regular member. The Nuisance Abatemem Board was established by Ordinance No. 59-96 on January 21, 1997, for the purpose of hearing evidence related to the existence of certain public nuisance on premises located in the City. The board consists of five regular members and two altemate members. Members shall be residents of, own property, own a business or be an officer, director or manager of a business located within the City, and are appointed by an affirmative vote of at least four members of the City Commission. The following have submitted applications and would like to be considered for appointment: Bernard Federgreen Susan Kay Eileen Marks Joe W'dliams Operations Director Case Manager Retired CSR/Banking (currently an altemate) lvEmis terial/Lands c aping A check to confirm all are registered voters was completed; all are registered. A check for code violations and/or municipal liens was conducted. None were found. Based on the rotation system, the appointments will be made by Commissioner Levinson (Seat # 3) for a regular member for an unexpired term ending March 31, 2005, and Commissioner McCarthy (Seat # 4) for a regular member for an unexpired term ending March 31, 2004 and Mayor Perlman (Seat # 5) for an alternate member for an unexpired term ending March 31, 2005. Recommend appointment of two (2) regular members with a term ending March 31, 2004 and March 31, 2005 and one alternate member for a term ending March 31, 2005. 09/03 NUISANCW. ABATEMENT TERM REGULAR MEMBERS ~ATION TELEPHONE EXPIRES 03/31/2005 Robert A. Gillespie Real Estate Home: 638-8697 ~x07/10/01 460 Sherwood Forest Drive Work: 278-2628 ReapVt 01/07/03 Delray Beach, FL 33445 03/31/2005 Vacant Home: Work: Fam 03/31/2004 Edward A. Ostrowski, Jr. Retire-Executive Home: 276-6092 ~ 03/21/0o 611 SE 7m Street ~pt 04/02/02 Delray Beach, FL 33483-5125 03/31/2004 Vacant Home: Work 03/31/2005 Jose A. Ramirez, Vice Chair Auto Technician Home: 276-3396 ~ 0Z/lO/01 1114 SW 8m Ave. Worlc 4103393 v,~ppt Ol/O7/O3 Delray Beach, FL 33444 POLICE LEGAL ADVISOR Catherine Kozol Work: 243-7822 Secretary: 243-7823 243-7823 ALTERNATES 03/31/2005 Vacant Home: Work: Fam 03/31/2005 Eileen Marks CSR/Banking Home: 2608494 .~vpt 04/lS/03 371 Coral Trace Lane DelrayBeach, FL 33445 BOARD COUNSEL Steve D. Rubin, Esq Work: (561)391-7992 980 NFederal I-fighway Fax: (561)347-0828 Suite 434 Boca Raton, FL 33432-2704 Contact: Karen Schell S/Ci3, Clerk/Board 03/Nu~ance Abatement Untitled TO: Nuisance Abatement chairperson, am sorry to inform you that I must turn in my resignation as I will be moving out of the city of Delray Beach. have learned alot from the committee and I'm sorry I have to resign.. Thank you for your help.. Sincerely, Donna 3. Russo PS This is effective immediately. Page 1 RECEIVED JUN 1 8 2003 CITY CLERK August 20, 2003 John E. Miller, Jr. 282 Sherwood Forest Drive Delray Beach, Florida 33445 (561)865-9483 City Clerk's Office City of Delray Beach 100 NW 1st Avenue Delray Beach, Florida 33444 To Whom It May Concern: Due to my recent appointment to Delray Beach's Historic Preservation Board, I must submit my resignation as a member of the Nuisance Abatement Board. It has been an extremely interesting experience for me, and I hope my continued service to the City of Delray proves to be as productive. Sincerely, John E. Miller, Jr 1993 2001 CITY OF DELRAY BEACH BOARD MEMBER APPLICATION ~ ~3~ 4. ~ B~ess:~' ~/" S~ ~p ~c · Home Ph~: Bu~ess P~ ~ ~ss: ~ Ph~ F~: I0~ ~st ~y ~d pmf~o~ ~ ~ ~ses ~ ~u hold: ..... :. ..... _ .... PI: ~ remain on ~lc in thc Ci~ ClerJt's Office for · period of 2 year; from ~hc da,- it was subn~tted. It w~ be the applicant's responn'l~ity m ensu~ that · current application is on file. FLEXI :K~'( F~X NO. :5614951-987 Sep. 11 ~ 04:--v2PH P2 DELRAY BEACH CITY OF BOARD MEMBER APPLICATION 1993 2001 -~'. Home Address: - 1 Legal Residence: City State Zip Code 4. Principal Business Address: City State Z~ Code $. Home Phone: Business Phone: E-Mail Adclt~s: Cell Phone: Fax: 7. ~$ Boat4(~) are ypu k~te~estg~i ip ae~'v~u~ Plea~ li~t Ja o~e~ of vrefexcnce:'~-' ,Z · / 9. Eduo~ ~ca6ona: 10. ~t,~ rdated prof~sio~ c~fica6om ~d ~cm~ ~ you con~~p~fio~ ~use for f~c u~a my p~ of ~y appo~t I may ~ve. %d Note: Thi, application will remain on file in the Cit7 Cle~k'~ Offfice for a period of 2 yeats from the date it was submitted. It will be the applicant% responaibility to ensure that a current application is on {'tie. RECEIVED .,~,...--..,~..,~..,o. SEP l 2 2003 FROH :KAY F~YX NO..'561495i287 S~p. ll =-~0~ 04:22PM P5 Snsa $. Kay CCTV, 2571 Ham~on C~le No~, ~l~y B~ ~ 33445 Phone: (561)~95-7848 F~ (561~95-1287 Professional ~perl~nc~: * 2002-ptas~R Medical, vocational ~ Ill,eager/con.~lltant fei' workar's compensation ca/Tiers. · i 999.- 2002; Vocational and medical case n~.nager for CorVel Corp. in Coral Springs, FL Case manager for worker's compensation cafflers/customers. · 1997-1999 Case l~ar, lqovaeon, Inc,, Maitland, FL Conwacmal consukant rn assis~ Injured,ill workers return to productive lifestyle and work. * 1959=1997 Account Sales Mannger, CRA l~ed Care, Inc., Boston, MA Salea and mazkotiag of managed care servlcea and cost containment sarvi~es to thn insurance industry in multiple states, Called on and serviced worker's compensation carri~"s, auto insurance carriers, and largo sdf4nsurod compani~. Gained knowledge of stoic r~gulatian8 in Florida ~nd New Jersey. Implemented large manaSed cart programs for worker's compensation across state of FIorid~ · 1989-1995 Medical and Vocational Cme M~nager. CRA Manased Csre. Boston. MA Cniried case load of tiles of injured workers for wolt~r's compensation carriers while providing customer service to major oa.~et accounts ~ market representative. 191l%1989 Ch,mt Services Repm~emative, $.F.IC Medical Canter, Edison, NJ. Responsibilities included identifying ~nd recruiting appropriate patient cases for thc rehabilitation urtR of the hospital. Also promoted the Indamial Walk-in Clinic to ne.u~ companies, sold a~d implememed wellness programs, employee physicals, drug screens, etc. to local companies. 1982-1987 Rehabilitation Consultant, That Work, Inc. Ddivcred case manngemcnt services to injured work. era and ~to a~idcnt ~cfims at the r~uest of the tnsu~ ~s, ~d~M ~ thdr d~ms resolution in a timely and c~ afl. rive mann~. ~ th~ s~ to ~e ~m~ ~er$ ~d to I~ge self- insur~ ~mpa~. lndepend~t V~fionM ~pen ~tneaa for S~ S~dty Ad~M~ratio~ 198~-1987. · 1972-1984 Brookdale Community College, Liecrofi, Adjunct Psycholo~ Instructor and Career Services T~st Administrator, Education: · M.S. Deip'e¢ i~ Vocatiouai R~ilitallou, We~t V'uginia U~ive~say, WV. · B.S. Degree in Social Work/Vocational Rehabilitation. Penn State Uuiversity, PA. Creden~tals: · FL Rehabilitation Provider ]A~nse b'WC1001260 · Certified Case Manager, #00635 valid through 2003. · Certified Disability Management Specialist,//04076 valid through 2006. · Certified Rehabilitation Counselor, #6-150, (Pst0, US De. pamnent of Labor, Longshore, Harbor Wortcar's and Federal Employees Compensation Ac~ · Vocational Expert Wimesa for Social Seeudty Adminiswation. 1986-1987, Jacksonville, FL Computer Skills: · Microsot~ Word. Etch. Power Point. ]merrier Exoerianc~. CITY OF DELRAY BEACH BOARD MEMBER APPLICATION 2. Home Adcltess: Chv 3. Leg~ ]~dd~cc C~ ~ S. H~e Pbgc: Bu~ess Phone: ~ A~css: ~ Phone: F~: ~ 6.. A~ you a te~st~ed vote? / ~, _ If ~, wh~e ~e you ~tete~ 10. ~t ~)' ~ted profes~ c~d~s ~d ~c~s. w~ you hold: Note: This application will r,-m.;,~ on ~le in the City Clerk's Or, ce fo~:~ae~i~q~ ~ f~.om the dstc it was submitted. It w~l be th~ applicants tesponsibilit7 to ~u~e tlu~ t L"h~n"'f ~l;ph-~"gon ~s on ~le. NOV - 7 ?11~? CITY CLERK 993 CITY OF DELRAY BEACH BOARD MEMBER APPLICATION Please tTpe ,z~ntthe fol]owin~info,m~on= . ~'~ ~-~ 4. ~p~ ~ss ~ss: ~ Su~ ~p ~c ~. Ho~c Phon~:~u~ess Phon~ ~ ~s: ~ Ph~: IF~: 6. 8. ~ ~ G~' ~.ds on ~'~ch ~ ~ ~, ~ ~ have p~ ~ ~$e ~udc ~s) .~, - _ ~ '; ~ rmttea, a w~l be t~e applicant s gcsponsibility to ensure ~.! .A. ca~.En...t spplicat~on is on file. OCT 13 ZUUJ ~ MEMORANDUM TO: FROM: SUBJECT: DATE: MAYOR AND CITY COMMISSIONERS CITY MANAGER~ AGENDA ITEM # ~ ~ - REGULAR MEETING OF NOVEMBER 18. 2003 ORDINANCE NO. 45-03 (PRIVATELY INITIATED REZONING/550 S.E. 9TM STREET) NOVEMBER 14, 2003 This ordinance is before Commission for second reading and a quasijudidal h~aring for rezoning from AC (Automotive Commercial) to GC (General Commercial) for 550 S.E. 9m Street located at the southwest comer of S.E. 6t~ Avenue (northbound Federal Highway) and S.E. 9m Street. The subject property consists of Lot 2B of the replat of Lot 2 Ninth Street Plaza and contains 0.73 acres. There is an existing 2,490 square feet structure with associated parking, landscaping, and refuse container area. The proposal is to change the zomg designation of Lot 2B to accommodate a furniture store. The planning and Zoning Board hdd a public heating in conjunction with the request. There was no public testimony regarding the request. The Board voted 4-0 to recommend that the request be approved, based upon positive findings with respect to Land Development Regulations Section 3.1.1 (Required Findings), Land Development Regulations Section 3.2.2 (Standards for Rezoning), Land Development Regulations Section 2.4.5(D)(5) (Rezoning Findings), and the goals, objectives, and policies of the Comprehensive Plan. At the first reading on November 4, 2003, the City Commission passed Ordinance No. 45-03. Recommend approval of Ordinance No. 45-03 on second and final reading. TO: THRU: FROM: SUBJECT: PA C6a INaT, CTOR OF P NN .G A.D JEFFREY A. COSTELLO, ASSISTANT PLANNING DII~OR - MEETING OF NOVEMBER 4, 2003 PRIVATELY INITIATED REZONING FROM AC (AUTOMOTIVE COMMERCIAL) TO GC (GENERAL COMMERCIAL) FOR 550 SE 9TM STREET LOCATED AT THE SOUTHWEST CORNER OF SE 6T" AVENUE (NORTHBOUND FEDERAL HIGHWAY) AND SE 9TM STREET. The subject property is Lot 2B of a Replat of Lot 2 Ninth Street Plaza, which is zoned AC and is 0.73 acres. The property contains an existing 2,490 sq. ft. structure and associated parking, landscaping and refuse container area. The building was constructed in 1976 as a service building associated with the Wallace Ford auto dealership, which occupied the entire block at that time. On February 9, 1993, the City Commission approved a conditional use request to establish a full service vehicle repair facility or specialized service shop (i.e. muffler shops, tire shops, etc.) for Ninth Street Plaza, Lot 2B (subject property) with conditions. Meineke Mufflers occupied the site until 2000. The site was then re-occupied by Cottman Transmission Center (a specialized service shop), which vacated the site earlier this year. The proposal is to rezone the subject property from AC (Automotive Commercial) to GC (General Commercial) to accommodate a furniture store. Additional background and an analysis of the request are found in the attached Planning and Zoning Board Staff Report. At its meeting of October 20, 2003, the Planning and Zoning Board held a public hearing in conjunction with the request. There was no public testimony regarding the rezoning. After reviewing the staff report and discussing the proposal, the Board voted 4-0 (Bomhardt, Pike and Woehlkens absent) to recommend approval of the rezoning request from AC to GC, based on positive findings with respect to LDR Section 3.1.1 (Required Findings), LDR Section 3.2.2 (Standards for Rezoning Actions), and LDR Section 2.4.5(D)(5) (Rezoning Findings), and the Goals, Objectives and Policies of the Comprehensive Plan. By motion, approve on first reading the ordinance for a rezoning from AC (Automotive Commercial) to GC (General Commercial) based on the findings and recommendations of the Planning and Zoning Board, and set a public hearing date of November 18, 2003. Attachments: P & Z Board Staff Report of October 20, 2003 & Ordinance by Others PLANNING AND ZONING BOARD CITY OF DELRAY BEACH ---STAFF REPORT--- MEETING DATE: AGENDA ITEM: ITEM: October 20, 2003 IV. C. Rezoning From AC (Automotive Commercial) To GC (General Commercial) For a 0.73 Acre Parcel of Land Located at 550 SE 9th Street [Southwest Comer of SE 6th Avenue(Northbound Federal Highway) and SE 9~ Street] (Quasi-Judicial Hearing). GENERAL DATA: Owner/Applicant ......................... Lynn M. Soraide Agent .......................................... Salvatore Ciccone Location ...................................... Southwest comer of Southeast 6~ Avenue (Northbound Federal Highway) and Southeast 9~h Street. Property Size .............................. 0.73 Acres Future Land Use Map ...............GC (General Commercial) Current Zoning ............................ AC (Automotive Commercial) Proposed Zoning ........................ GC (General Commercial) Adjacent Zoning ................ North: GC (General Commercial) East: GC (General Commercial) South: GC (General Commercial) West: GC (General Commercial) Existing Land 'Use ...................... VacantJ2,490 square-ft. building. Proposed Land Use .................... Rezoning from AC (Automotive Commercial) to GC (General Commercial) for a 0.73 acre parcel of land to accommodate a retail furniture store. Water Service ............................. Existing on site. Sewer Service ............................. Existing on site. IV. C. The item before the Board is that of making a recommendation to the City Commission on a rezoning from AC (Automotive Commercial) to GC (General Commercial) for 550 SE 9th Street. The subject property is located at the southwest corner of SE 6~ Avenue (Northbound Federal Highway) and SE 9th Street. Pursuant to Section 2.2.2(E)(6), the Local Planning Agency shall review and make a recommendation to the City Commission with respect to the rezoning of any property within the City. The subject property consists of Lot 2B, Replat of Lot 2 Ninth Street Plaza, which is zoned AC (Automotive Commercial) and contains 0.73 acres. The property contains an existing 2,490 sq. ft. structure and associated parking, landscaping and refuse container area. The building was constructed in 1976 as a service building associated with the Wallace Ford auto dealership, which occupied the entire block at that time. The Wallace Dealership relocated to Linton Boulevard and the site remained vacant until 1992. The subject property has extensive land use history. The most recent land use actions that relate to the subject property are as follows: At its meeting of October 13, 1992, the City Commission approved a Replat of Lot 2, Ninth Street Plaza, consisting of a two subdivision: Lot 2A and 2B. On February 9, 1993, the City Commission approved a conditional use request to establish a full service vehicle repair facility or specialized service shop (i.e. muffler shops, tire shops, etc.) for Ninth Street Plaza, Lot 2B (subject property) with conditions. The request was made in order to allow the property to be ready for quick occupancy (without requiring a use hearing) once a permanent tenant was found. At its meeting of May 18, 1994, the Site Plan Review and Appearance Board (SPRAB) approved building elevation and color changes for Meineke Mufflers, which occupied the site until 2000. The site was then re-occupied by Cottman Transmission Center (a specialized service shop, which vacated the site eadier this year. At its meeting of June 3, 2003, the City Commission approved a rezoning from AC (Automotive Commercial) to GC (General Commercial for Lot 2A (immediately to the west), which contains the Blue Max Autohaus vehicle repair facility. The property was rezoned to accommodate the redevelopment by Gulfstream Business Bank. On June 25, 2003, SPRAB approved the Class V site plan, landscape plan and building elevations for Gulfstream Business Bank. P&Z Board Staff Report Rezoning from AC to GC for 550 SE 9th Street Page 2 The proposal is to rezone the 0.73 acre subject property (Lot 2B, Replat of Lot 2 Ninth Street Plaza) from AC (Automotive Commercial) to GC (General Commemial) to accommodate a furniture store. REQUIRED FINDINGS: LDR {Chapter 3) PERFORMANCE STANDARDS: Pursuant to Section 3.1.1 (Required Findings), prior to approval of Land Use applications, certain findings must be made in a form which is part of the official record. This may be achieved through information on the application, written materials submitted by the applicant, the staff report, or minutes. Findings shall be made by the body which has the authority to approve or deny the development application. These findings relate to the Future Land Use Map, Concurrency, Comprehensive Plan Consistency, and Compliance with the Land Development Regulations. FUTURE LAND USE MAP: The resulting use of land or structures must be allowed in the zoning district within which the land is situated and said zoning must be consistent with the applicable land use designation as shown on the Future Land Use Map. The subject property has a Future Land Use Map designation of GC (General Commercial) and is currently zoned AC (Automotive Commercial). General retail uses are not specifically listed as permitted uses in the AC zoning district. The proposed General Commemial (GC) zoning district provides basic regulations for small parcels which are best suited for general retail and office uses [Ref. LDR Section 4.4.9(A)]. Pursuant to LDR Section 4.4.9(B)(1), general retail type uses are permitted within the GC zoning district. The proposed GC (General Commercial) zoning designation is consistent with the GC (General Commercial) Future Land Use Map designation. Based upon the above, positive findings can be made with respect to Future Land Use Map Consistency. CONCURRENCY: Facilities which are provided by, or through, the City shall be provided to new development concurrent with issuance of a Certificate of Occupancy. These facilities shall be provided pursuant to levels of service established within the Comprehensive Plan. Water & Sewer: Water service exists via a service lateral connection to an existing 8" water main located along the south side of SE 9th Street. P&Z Board Staff Report Rezoning from AC to GC for 550 SE 9th Street Page 3 Sewer service exists via a service lateral connection to the existing 8" main within the 20' utility easement (previously abandoned north/south alley) adjacent to the west side of the property. El Adequate fire suppression exists via the existing fire hydrant located at the northwest comer of the property. The proposed development will accommodate uses of similar intensity as those allowed in the AC zoning district and will have similar water consumption and sewer generation rates. Pursuant to the Comprehensive Plan, treatment capacity is available at the City's Water Treatment Plant and the South Central County Waste Water Treatment Plant for the City at build-out. Based upon the above, positive findings can be made with respect to this level of service standard. Drainage: With a rezoning request drainage plans are not required. The rezoning to GC is to allow a retail establishment to occupy the existing building. Drainage is currently accommodated via sheetfiow to perimeter landscape areas, which contain a French drain. Redevelopment of the site in the future will require the installation of drainage system that meets current standards. Traffic: The uses allowed under the existing AC zoning do not include general retail uses, which are allowed in the GC zoning district. While the proposed GC zoning does allow uses of similar or greater intensity from a traffic perspective as the AC uses, an increase in traffic volumes is not anticipated from the rezoning action itself. As previously noted, the proposed rezoning from AC to GC is to accommodate a change in use from auto repair to retail furniture store. The proposed change of use of the 2,490 sq.ft, structure from auto repair to retail will generate approximately 171 additional vehicular trips onto the surrounding roadway network. With the submittal of a site plan modification application for the change in use, a traffic statement will be required. There are no problems anticipated meeting traffic concurrency and the associated level of service standards. Submittal of a site plan application to redevelop the site may require the submittal of a traffic study, which complies with the Palm breach County Traffic Performance Standards Ordinance. Parks and Recreation: Nonresidential uses do not create a demand for Parks & Recreation services therefore, park dedication requirements do not apply. School Concurrency: Commercial uses do not generate an impact or demand on school facilities and services; therefore this requirement does not apply. However, while the AC zoning P&Z Board Staff Report Rezoning from AC to GC for 550 SE 9t~ Street Page 4 district does not allow residential uses, the GC zoning does at a maximum of 12 units per acre. The maximum number of units that could be accommodated on this site is 8. This standard will be revisited if a site plan is submitted that accommodates residential uses. Solid Waste: Trash generated each year by the proposed commercial development under the proposed GC zoning district will be comparable or greater than trash generated by the uses allowed under the AC zoning district however the difference should not create an adverse impact on this level of service standard. The Solid Waste ^uthodty has indicated that its facilities have sufficient capacity to handle all development proposals until the year 2021. CONSISTENCY: Compliance with the performance standards set forth in Section 3.2.2 (Standards for Rezoning Actions) along with required findings in Section 2.4.5(D)(5) (Rezoning Findings) shall be the basis upon which a finding of overall consistency is to be made. Other objectives and policies found in the adopted Comprehensive Plan may be used in the making of a finding of overall consistency. COMPREHENSIVE PLAN POLICIES: A review of the objectives and policies of the adopted Comprehensive Plan was conducted and the following applicable objective is noted. Future Land Use Element Obiective A-I - Property shall be developed or redeveloped in a manner so that the future use and intensity is appropriate in terms of soil, topographic, and other applicable physical considerations, is complementary to adjacent land uses, and fulfills remaining land use needs. Many of the automobile related uses allowed within the AC zoning district are not allowed uses within the GO zoning district such as vehicle sales, vehicle rental, and vehicle repair. The proposed rezoning will allow the currently vacant structure to be reoccupied by a retail furniture store. The property is surrounded by commercial uses and any redevelopment will need to be complementary to these uses. Any concerns with respect to compatibility will be enhanced through specific regulations, which apply to the GC zoning district. The proposed commercial designation is an appropriate zoning designation along an arterial road (Federal Highway). Section 3.2.2 (Standards for Rezonin,q Actions): Standards A, B, and E are not applicable with respect to the proposed rezoning. The applicable performance standards of Section 3.2.2 are as follows: (c) Zoning changes that would result in strip commercial development shall be avoided. Where strip commercial developments or zoning currently exists along an arterial street, consideration should be given to increasing the P&Z Board Staff Report Rezoning from AC to GC for 550 SE 9~ Street Page 5 depth of the commercial zoning in order to provide for better project design. The proposed GC zoning designation for the 0.73 acre pamel can be considered strip commercial zoning and is consistent with the zoning designation of the surrounding properties. Pursuant to LDR Section 4.4.9(A)(Purpose and Intent), the GC district provides basic regulations for small parcels which are best suited for general retail and office uses but which are not of sufficient size to be designed in a planned sense. The GC designation is applied to small parcels, most of which are developed, where adherence to standard regulations is most appropriate. The GC is to be applied primarily along arterial and collector streets. The existing site, which is located along an arterial street, is part of an overall planned development encompassing a one block area with limited/shared access and cross access driveways. Any redevelopment of or modifications to the subject property would need to be sensitive to this current shared site design. D) That the rezoning shall result in allowing land uses which are deemed compatible with adjacent and nearby land uses both existing and proposed; or that if an incompatibility may occur, that sufficient regulations exist to properly mitigate adverse impacts from the new use. The property is surrounded by the GC (General Commemial) zoning district. The surrounding uses are: Miami Subs restaurant to the north; MAB Paints to the south; existing auto repair use (Blue Max Autohaus/proposed Gulfstream Bank site) to the west; and, strip commercial centers to the east. The proposed retail use is compatible with the surrounding uses as similar land uses exist in the immediate area. Section 2.4.5(D)(5) (Rezonin(; Findim3s): Pursuant to Section 2.4.5(D)(5) (Findings), in addition to provisions of Section 3.1.1, the City Commission must make a finding that the rezoning fulfills one of the reasons for which the rezoning change is being sought. These reasons include the following: That the zoning had previously been changed, or was originally established, in error; That there has been a change in circumstances which make the current zoning inappropriate; That the requested zoning is of similar intensity as allowed under the Future Land Use Map and that it is more appropriate for the property based upon circumstances particular to the site and/or neighborhood. The applicant has submitted the following statement indicating the reasons for which the rezoning is being sought based on "b" above: P&Z Board Staff Report Rezoning from AC to GC for 550 SE 9th Street Page 6 "'l'here has been a change in circumstances which makes the current zoning inapprop~ate. Auto repair is no longer a viable use for this property. A better use of the property would be a furniture store which requires "GC" (General Commercial) zoning. The basis for which the rezoning should be granted relates to "c" in that the use of the property for general commercial use is more appropriate given its immediate location to other general commercial type uses. With the elimination of the adjacent auto repair facility to the west and redevelopment of the property to accommodate a bank facility, there are no other auto repair uses in the immediate vicinity. Due to the industrial nature of the use and the property's location on an artedal roadway consisting of primarily general commercial uses, the GC zoning designation is more appropriate. Based upon the above, a positive finding with respect to LDR Section 2.4.5(D)(5) can be made. COMPLIANCE WITH LAND DEVELOPMENT REGULATIONS: Items identified in the Land Development Regulations shall specifically be addressed by the body taking final action on the development proposal. Site Plan Modification: The proposed rezoning is being processed in order to establish a retail furniture store. If the rezoning is approved, the change of use from auto repair to retail will require the processing and approval of Class Iit site plan modification. This type of modification is described as a modification to the site plan which represents either a change in intensity of use, or which affects the spatial relationship among improvements on the land, requiring partial review of Performance Standards found in LDR Section 3.1.1 [ref. LDR Section 2.4.5(G)(1)(c)(Class III)]. As the change of use from auto repair to retail requires represents a change in intensity requiring partial review of LDR Section 3.1.1, a Class III site plan modification must be processed and approved. Prior to establishing the proposed use, improvements associated with the site plan modification approval must be constructed. The site plan modification needs to address the replacement of the overhead service bay doors with permanent storefront doors thereby creating a storefront facade as well as the provision of handicap accessibility. Further, the interior of the building must comply with building and fire codes as they relate to retail/furniture store uses. The proposed use has created some concerns within the general vicinity with businesses just north of this site with respect to illegal outside display of furniture. The GC zoning classification allows, pursuant to LDR Section 4.6.6(C)(3), a maximum of 10% of the square footage of the building for outside display (249 sq.ft.). This outside display area cannot occupy parking spaces, driveways, sidewalks or landscaped areas. In reviewing a survey of this property, no areas are currently available for any outside display. P&Z Board Staff Report Rezoning from AC to GC for 550 SE 9th Street Page 7 The development proposal is not located within the geographical area requiring review by the DDA (Downtown Development Authority). Community Redevelopment Agency This item was reviewed by the CRA at their October 9, 2003, meeting and the CRA Board recommended approval of the rezoning. Courtesy Notices: A special courtesy notice was provided to the following civic and homeowners associations: · Osceola Park Homeowners Association · PROD · Rio Delray Shores · President's Council · Delray Harbour Club Public Notice: Formal public notice has been provided to property owners within a 500' radius of the subject property. Letters of objection and support, if any, will be presented at the Planning and Zoning Board meeting. The proposed rezoning from AC (Automotive Commercial) to GC (General Commercial) designation is supportable as the GC zoning is of similar intensity as allowed under the GC FLUM designation and is more appropriate for this site based upon the existing GC zoning and uses surrounding the property. Positive findings can be made with respect to LDR Section 3.1.1 (Required Findings), LDR Section 3.2.2 (Standards for Rezoning Actions), LDR Section 2.4.5(D)(5) (Rezoning Findings), and the Goals, Objectives, and Policies of the Comprehensive Plan. A. Continue with direction. B. Recommend to the City Commission approval of the rezoning for 550 SE 9th Street from AC to GC, based on positive findings with respect to LDR Section 3.1.1 (Required Findings), LDR Section 3.2.2 (Standards for Rezoning Actions), and LDR Section 2.4.5(D)(5) (Rezoning Findings), and the Goals, Objectives and Policies of the Comprehensive Plan. P&Z Board Staff Report Rezoning from AC to GC for 550 SE 9th Street Page 8 C. Recommend to the City Commission denial of the rezoning from AC to GC for 550 SE 9th Street, based on a failure to make positive findings with respect to LDR Section 2.4.5(D)(5). Recommend to the City Commission rezoning of 550 SE 9th Street from AC (Automotive Commemial) to GC (General Commercial), based on positive findings with respect to LDR Section 3.1.1 (Required Findings), LDR Section 3.2.2 (Standards for Rezoning Actions), and LDR Section 2.4.5(D)(5) (Rezoning Findings), and the Goals, Objectives and Policies of the Comprehensive Plan. Attachments: Location/Zoning Map Survey COMMONS I lll I1~_. PLACE ~XECU~VEY ~ ~ ~E~ ~ POC / //~ ~ . PC /~/ ~E -- AT / / LINTON VILLAGE / ~ BANYAN /~/~ "*"~ R M / / EDGE /~/ o~ ~ou~ 550S.E. 9TH STREET - REZONING - FROM: AC (AUTOMOTIVE COMMERCIAL) TO~: GC (GENERAL COMMERCIAL) 550 S.E. 9TH STREET W-~ ~E .I. l -! ORDINANCE NO. 45-03 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, REZONING AND PLACING LAND PRESENTLY ZONED AC (AUTOMOTIVE COMMERCIAL) DISTRICT TO GC (GENERAL COMMERCIAL) DISTRICT; SAID LAND BEING A PARCEL OF LAND LOCATED AT THE SOUTHWEST CORNER OF SE 6TM AVENUE (NORTHBOUND FEDERAL HIGHWAY) AND SE 9TM STREET, AS MORE PARTICULARLY DESCRIBED HEREIN; AMENDING "ZONING MAP OF DELRAY BEACH, FLORIDA, APRIL 2003"; PROVIDING A GENERAL REPEALER CLAUSE, A SAVING CLAUSE, AND AN EFFECTIVE DATE. WHEREAS, the property hereinafter described is shown on the Zoning District Map of the City of Delray Beach, Florida, dated April, 2003, as being zoned AC (Automotive Commercial) District; and WHEREAS, at its meeting of October 20, 2003, the Planning and Zoning Board for the City of Delray Beach, as Local Planning Agency, considered this item at a public hearing and voted 4 to 0, to recommend that the property hereinafter described be rezoned, based upon positive findings; and WHEREAS, it is appropriate that the Zoning District Map of the City of Delray Beach, Florida, be amended to reflect the revised zoning classification. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AS FOLLOWS: Section 1. That the Zoning District Map of the City of Delray Beach, Florida, be, and the same is hereby amended to reflect a zoning classification of GC (General Commercial) District for the following described property: Lot 2B of the Plat of the Replat of Lot 2 Ninth Street Plaza, according to the Plat thereof, as recorded in Plat Book 70, Page 44 of the Public Records of Palm Beach County, Florida. Section 2. That the Planning and Zoning Director of the said City shall, upon the effective date of this ordinance, amend the Zoning Map of the City of Delray Beach, Florida, to conform with the provisions of Section 1 hereof. Section 3. That all ordinances or parts of ordinances in conflict herewith be, and the same are hereby repealed. Section 4. That should any section or provision of this ordinance or any portion thereof, any paragraph, sentence, or word be declared by a court of competent jurisdiction to be invalid, such decision shall not affect the validity of the remainder hereof as a whole or part thereof other than the part declared to be invalid. Section 5. That this ordinance shall become effective immediately upon passage on second and final reading. the PASSED AND ADOPTED in regular session on second and final reading on this __ day of · 200~. ATTEST MAYOR City Clerk First Reading Second Reading 2 ORD NO. 45-03 MEMORANDUM TO: FROM: SUBJECT: DATE: MAYOR AND CITY COMMISSIONERS CITY MANAGER ~ AGENDA ITEM # [O ~ - REGULAR MEETING OF NOVEMBER 18. 2003 ORDINANCE NO. 42-03 NOVEMBER 14, 2003 This is second reading and second public hearing for Ordinance No. 42-03 amending Chapter 4, "Zoning Regulations", of the Land Development Regulations, Section 4.3.3(V) "Uses Involving Alcoholic Beverages" to provide for a definition of alcoholic beverage that is consistent with State Statutes and a distance limitation between Stand Alone Bars. At the first reading on November 4, 2003, the Commission passed Ordinance No. 42-03. Recommend approval of Ordinance No. 42-03 on second and final reading. S:\City Clerk\agenda memos. Oral 42-03.Definition-Alcohol~ Bevetagel 1.18.03 THRU: PAUL DORLIN OR OF PLANNING AND ZONI FROM: JEFPRE ^. COSTELLO, ASS STA.T PLA..I.G SUBJECT: MEETING OF NOVEMBER 4, 2003 AMENDMENT TO LAND DEVELOPMENT REGULATIONS APPENDIX "A" "DEFINITIONS" AND SECTION 4.3.3(V) "USES INVOLVING ALCOHOLIC BEVERAGES", IN ORDER TO PROVIDE FOR A DEFINITION OF ALCOHOLIC BEVERAGE THAT IS CONSISTENT WITH STATE STATUTES AND A DISTANCE LIMITATION BE'FWEEN STAND ALONE BARS. The proposed amendment is being processed in order to obtain consistency with State Statutes as they relate to the definition of Alcoholic Beverages, and to provide clarification regarding the distance limitation between stand alone bars and provide specific distances. In addition, the definition of Alcoholic Beverage Establishment is being modified and definitions of Stand Alone Bar and Bottle Club ara being added to be consistent with State Statutes. Additional background and a complete analysis are provided in the attached Planning and Zoning Board staff report. The Planning and Zoning Board held a public hearing regarding this item at its meeting of October 20, 2003. There was a member of the public that had no objections to the amendment, but recommended some grammatical changes to the ordinance. After discussing the amendment, the Board voted 4-0 (Borchardt, Pike and Woehlkens absent) to recommend to the City Commission approval of the proposed amendment to Land Development Regulations Appendix "A" "Definitions" and Section 4.3.3(V) "Uses Involving Alcoholic Beverages", in order to provide for a definition of alcoholic beverage that is consistent with State Statutes and a distance limitation between Stand Alone Bars, based upon positive findings with LDR Section 2.4.5(M). The proposed ordinance includes the grammatical changes. By motion, approve on first reading the ordinance regarding Stand Alone Bars, based upon the findings and recommendations by the Planning and Zoning Board, and set a public headng date of November 18, 2OO3. Attachments: P&Z Board Staff Report of October 20, 2003 & Ordinance by Others MEETING OF: OCTOBER 20, 2003 AGENDAITEM: IV.E. AMENDMENT TO THE LAND DEVELOPMENT REGULATIONS APPENDIX "A" "DEFINITIONS" AND SECTION 4.3.3(V) "USES INVOLVING ALCOHOLIC BEVERAGES", IN ORDER TO PROVIDE FOR AND AMEND DEFINITIONS RELATING TO ALCOHOLIC BEVERAGES AND PROVIDE DISTANCE LIMITATIONS BETWEEN STAND ALONE BARS. The item before the Board is an amendment to the Land Development Regulations Appendix "A" "Definitions" amending all definitions relating to alcoholic beverages and enacting new definitions relating to alcoholic beverages; and amending Section 4.3.3(V) "Uses Involving Alcoholic Beverages", in order to provide for a definition of alcoholic beverage that is consistent with State Statutes and a distance limitation between Stand Alone Bars, pursuant to LDR Section 2.4.5(M). Pursuant to LDR Section 1.1.6, an amendment to the LDRs may not be made until a recommendation is obtained from the Planning and Zoning Board. LDR Section 4.3.3(V) (Uses Involving Alcoholic Beverages) contains regulations concerning alcoholic beverages and limits the location of cocktail lounges and bars. The current provisions relating to alcoholic beverages found in Section 113 of the City's Code of Ordinances and Section 4.3.3(V) of the City's Land Development Regulations were adopted in 1980. With the adoption of the Land Development Regulations in 1990, the provisions found in LDR Section 4.3.3 were relocated from Section 113 of the City's Code of Ordinances. The proposed amendment is being processed in order to obtain consistency with State Statutes as they relate to the definition of Alcoholic Beverages, and to provide clarification regarding the distance limitation between stand alone bars and provide specific distances. In addition, the definition of Alcoholic Beverage Establishment is being modified and definitions of Stand Alone Bar and Bottle Club are being added to be consistent with State Statutes. As previously stated, the amendment includes a change to the manner in which the distance is measured between cocktail lounges/bars. LDR Section 4.3.3(V)(2)(a) states the following: "Not more than one vendor shall be located within any one block fronting on a street nor in the block immediately across the street, unless the establishment is a duly licensed restaurant serving full course meals at tables." IV.E. Planning and Zoning Board Memorandum Staff Report LDR Text Amendment Regarding Stand Alone Bars Page 2 The intent of the regulation is to prevent the proliferation of cocktail lounges and bars in any given area throughout the City. However, this method of measurement has created some confusion. Also, block sizes vary throughout the City. For example, a block in the central business district is typically 300' wide x 600' deep, while on North or South Federal Highway a block can be a ¼ to ~ a mile in length. The proposed amendment is to provide a specific distance limitation and method of measurement as follows: "Not more than one stand alone bar shall be located within any one block nor within seven hundred and fifty (750) feet of another stand a/one bar measured from lot line to lot line along a straight aidine route.' It is noted that businesses that meet the definition of stand alone bar located on property within 300' of residentially-zoned property, are further regulated by LDR Section 4.3.3(VV) (24-hour or Late Night Businesses), and are subject to conditional use approval. Pursuant to LDR Section 2.4.5(M)(5), approval of an LDR amendment must be based upon a finding that the amendment is consistent with and furthers the Goals, Objectives, and Policies of the Comprehensive Plan. As noted previously, this amendment is being initiated to obtain consistency with State Statutes as they relate to the definition of Alcoholic Beverages, and to provide clarification regarding the distance limitation between stand alone bars and provide specific distance limitations. These regulations as well as regulations currently in place should limit the proliferation of stand alone bars and thus mitigate any potential impacts on area business and residents. While the amendment does not fulfill a specific Goal, Objectives, and Policies of the Comprehensive Plan, it is not inconsistent with them. Community Redevelopment Agency: At its meeting of October 9, 2003, the CRA Board reviewed the proposed LDR amendment and recommended approval. Downtown Development Authority: This item is scheduled for review by the DDA at their October 21st meeting. Their recommendation will be provided at the City Commission meeting. Courtesy Notices: Special courtesy notices were provided to the following homeowners and civic associations: · PROD (Progressive Residents of Delray) · Presidents Council · Chamber of Commerce Letters of objection or support, if any, will be provided at the Planning and Zoning Board meeting. Planning and Zoning Board Memorandum Staff Report LDR Text Amendment Regarding Stand Alone Bars Page 3 By motion, recommend to the City Commission approval of the attached amendment to Land Development Regulations Appendix "A" "Definitions" amending all definitions relating to alcoholic beverages and enacting new definitions relating to alcoholic beverages; and amending Section 4.3.3(V) "Uses Involving Alcoholic Beverages", in order to provide for a definition of alcoholic beverage that is consistent with State Statutes and a distance limitation between Stand Alone Bars, based upon positive findings with LDR Section 2.4.5(M). Attachment: Proposed Amendment \\misrv001\departments\planning & zoning~boards\p&z boar~drstandalonebars.doc Planning and Zoning Board Memorandum Staff Report LDR Text Amendment Regarding Stand Alone Bars Page 4 ORDINANCE NO. 42-03 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AMENDING THE LAND DEVELOPMENT REGULATIONS OF THE CITY OF DELI=AY BEACH, AMENDING APPENDIX "A", BY AMENDING ALL DEFINITIONS RELATING TO ALCOHOLIC BEVERAGES AND ENACTING SOME NEW DEFINITIONS RELATING TO ALCOHOLIC BEVERAGES; AMENDING CHAPTER FOUR, "ZONING REGULATIONS"; SECTION 4.3.3(V), "USES INVOLVING ALCOHOLIC BEVERAGES", IN ORDER TO PROVIDE FOR A DEFINITION OF ALCOHOLIC BEVERAGE THAT IS CONSISTENT WITH STATE STATUTES AND A DISTANCE LIMITATION BETWEEN STAND ALONE BARS; PROVIDING A SAVINGS CLAUSE, A GENERAL REPEALER CLAUSE, AND AN EFFECTIVE DATE. WHEREAS, the City Commission of the City of Delray Beach, Florida, has the authority to protect the public health, safety and welfare of its citizens; and WHEREAS, the City Commission finds that the City has a substantial government interest in regulating liquor under the police powers and under state law; and WHEREAS, the City Commission has determined it to be in the public's best interest to establish reasonable regulations for the location of stand alone bars throughout the City. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA: Section 1. That Appendix "A" be amended as follows: ALCOHOLIC BEVERAGE ESTABLISHMENT: ........... *'~"~'~'""* ~'~""~'~'~ ;" ~'^ ~;~. ~ ~, .... o~ ..,~. ~,~,;~ bcver=~, ~ ...... ' ..... cffcrcd for ~c~c ~- ......... . ............ ~ ..........Any business or commerdal establishment, whether open to the public at larqe or entrance is limited by cover charqe or membership requirements, includinq those li~nsed by the state for sale and-or se~i~ of alcoholic beveraqes, which include but are not limited to, any bar, s~nd alone bar, cocktail lounge, boEle club, hotel, motel, restaurant, niqht club, ~unt~ club, ~baret, and meetinq faciliW Io~ted in the CiW of Delray Beach in which alcoholic bevemqes, beer or wine are, or are available to be sold, dispensed, se~ed, consumed, provided, possessed or offered for sale or consumption on the premises. BOTTLE CLUB: A commercial establishment, operated for a profit, whether or not a profit is actually made, wherein patrons consume alcoholic bevera.qes which are brouqht onto the premises and not sold or supplied to the patrons by the establishment, whether the patrons brinq in and maintain custody of their own alcoholic beveraqes or surrender custody to the establishment for dispensinq on the premises, and which is located in a buildinq or other enclosed structure. This definition does not apply to sportin.q facilities where events sanctioned by nationally reco.qnized regulatory athletic or sports associations are held or bona fide Planning and Zoning Board Memorandum Staff Report LDR Text Amendment Regarding Stand Alone Bars Page 5 restaurants licensed by the Division of Hotels and Restaurants of the Department of Business and Professional Requlation. STAND ALONE BAR: Any licensed premises, includinq but not limited to: cocktail Iounqes, bars, ni.qhtclubs, dance clubs, piano bars and ciqar bars devoted durinq any time of operation predominantly or totally to servinq alcoholic beveraqes, intoxicatinq beveraqes, or intoxicatinq liquors, or any combination thereof, for consumption on the licensed premises; in which the servinq of food, if any, is merely incidental to the consumption of any such beverage; and the licensed premises is not located within, and does not share any common entryway or common indoor area with, any other enclosed indoor workplace, includin.q any business for which the sale of food or any other product or service is more than an incidental source of qross revenue. A place of business constitutes a stand-alone bar in which the service of food is merely incidental in accordance with this definition if the licensed premises derives no more than ten percent (10%) of its qross revenue from the sale of food consumed on the licensed premises. Section 2. That Chapter Four, "Zoning Regulations", Section 4.3.3(V), "Uses Involving Alcoholic Beverages", be, and the same is hereby amended to read as follows: (V) Uses Involving Alcoholic Beverages: ~-'- ;.....,.,; ....... ~..+; (1) Defined: For this subsection, alcoholic beverage is defined as: Distilled spirits and all bevera.qes containinq one-half of I percent (.05%) or more alcohol by volume. (2) Prohibitions by Frequency: The sale of alcoholic beverages for on-site consumption shall be allowed as a principal use within ccckt"!! !cu.".~e= =.".d bar= stand alone bars and as an accessory use in chartered private clubs and golf courses with the restriction that: (a) Not more than one ve.".dcr stand alone bar shall be located within any one block ~'""*; ...... *'""* ""' ~'' *~'e ~.,...-u ~,-...~,~..,~, ........ *"~ :trcct, ,aeJess-the · '"*""'"'"'~""* ;" "'~' '"' '; ..... '~ '""* ...... * .... ;"" "'" .......... '" "* *"~""" nor within seven hundred and fifty (750) feet of another stand alone bar measured from lot line to lot line alon.q a straight airline route. /~) The above restriction does not apply to a duly licensed grocery store which sells beer and wine in packages for off-site consumption nor does it apply to a restaurant which holds a special restaurant license issued by the Department of Business Requlations of the State Division of Alcoholic Beveraqes and Tobacco. Planning and Zoning Board Memorandum Staff Report LDR Text Amendment Regarding Stand Alone Bars Page 6 (3) Prohibition by Proximity (Schools and Churches): Alcoholic beverages shall not be sold at any establishment which is located within 300 feet of an established school or church. (a) With respect to schools, the 300' distance shall be measured from the nearest point of the building of the place of business, location, or establishment to the nearest point of the school grounds in use as a part of the school facilities. (b) With respect to churches, the 300' distance shall be measured from the nearest point of the building of place of business, location, or establishment to the nearest point of the church building or buildings. (c) The 300' distance shall be measured in a straight line. (d) The above restriction does not apply to a duly licensed grocery store which sells beer and wine in packages for off-site consumption nor does it apply to a restaurant which holds a special restaurant license issued by the Department of Business Regulations of the State Division of Alcoholic Beverages and Tobacco. (4) Bottle Clubs Prohibited: Bottle Clubs as defined in C~ ~. ~. 3. ~. 8 Appendix A are prohibited in all zone districts. Section 3. That should any section or provision of this ordinance or any portion thereof, any paragraph, sentence, or word be declared by a court of competent jurisdiction to be invalid, such decision shall not affect the validity of the remainder hereof as a whole or part thereof other than the part declared to be invalid. Section 4. That all ordinances or parts of ordinances in conflict herewith be, and the same are hereby repealed. Section 5. That this ordinance shall become effective immediately upon its passage on second and final reading. PASSED AND ADOPTED in regular session on second and final reading on this ,2003. day of ATTEST: MAYOR CITY CLERK First Reading Second Reading. ORDINANCE NO. 42-03 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AMENDING THE LAND DEVELOPMENT REGULATIONS OF THE CITY OF DELRAY BEACH, AMENDING APPENDIX "A", BY AMENDING ALL DEFINITIONS RELATING TO ALCOHOLIC BEVERAGES AND ENACTING SOME NEW DEFINITIONS RELATING TO ALCOHOLIC BEVERAGES; AMENDING CHAPTER FOUR, "ZONING REGULATIONS"; SECTION 4.3.3(V), "USES INVOLVING ALCOHOLIC BEVERAGES", IN ORDER TO PROVIDE FOR A DEFINITION OF ALCOHOLIC BEVERAGE THAT IS CONSISTENT WITH STATE STATUTES AND A DISTANCE LIMITATION BETWEEN STAND ALONE BARS; PROVIDING A SAVINGS CLAUSE, A GENERAL REPEALER CLAUSE, AND AN EFFECTIVE DATE. WHEREAS, the City Commission of the City of Delray Beach, Florida, has the authority to protect the public health, safety and welfare of its citizens; and WHEREAS, the City Commission finds that the City has a substantial government interest in regulating liquor under the police powers and under state law; and WHEREAS, the City Commission has determined it to be in the public's best interest to establish reasonable regulations for the location of stand alone bars throughout the City. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA: Section 1. That Appendix "A" be amended as follows: ALCOHOLIC BEVERAGE ESTABLISHMENT: ........... *"~'""~'"'""* f"""*'"~ i~ ........vv,.~,,.~..,~..*~ .... v,, *~'.,.v ..... ~.,v,,..~.~o"° Any business or commercial establishment, whether open to the public at larqe or entrance is limited by cover charqe or membership requirements, includinq those licensed by the state for sale and-or service of alcoholic beveraqes, which include but are not limited to, any bar, stand alone bar, cocktail lounge, bottle club, hotel, motel, restaurant, niqht club, country club, cabaret, and meetinq facility located in the City of Delray Beach in which alcoholic beverages, beer or wine are, or are available to be, sold, dispensed, served, consumed, provided, possessed or offered for sale or consumption on the premises. BOTTLE CLUB: A commercial establishment, operated for a profit, whether or not a profit is actually made, wherein patrons consume alcoholic beveraqes which are brcuqht onto the premises and not sold or supplied to the patrons by the establishment, whether the patrons brinq in and maintain custody of their own alcoholic beverages or surrender custody to the establishment for dispensing on the premises, and which is located in a buildinq or other enclosed structure. This definition does not apply to sporting facilities where events sanctioned by nationally reco.qnized regulatory athletic or sports associations are held or to bona fide restaurants licensed by the Division of Hotels and Restaurants of the Department of Business and Professional Regulation. STAND ALONE BAR: Any licensed premises, includinq but not limited to, cocktail lounges, bars, nightclubs, dance clubs, piano bars and cigar bars, devoted durin.q any time of operation predominantly or totally to servinq alcoholic beveraqes, intoxicating bevera.qes, or intoxicating liquors, or any combination thereof, for consumption on the licensed premises, in which the servinq of food, if any, is merely incidental to the consumption of any such beveraqe; and the licensed premises is not located within, and does not share any common entryway or common indoor area with, any other enclosed indoor workplace, including any business for which the sale of food or any other product or service is more than an incidental source of gross revenue. A place of business constitutes a stand-alone bar in which the service of food is merely incidental in accordance with this definition if the licensed premises derives no more than ten percent (10%) of its .qross revenue from the sale of food consumed on the licensed premises. Section 2. That Chapter Four, "Zoning Regulations", Section 4.3.3(V), "Uses Involving Alcoholic Beverages", be, and the same is hereby amended to read as follows: (V) Uses Involving Alcoholic Beverages: (Thc *""'""=.v..v,,...= (1) Defined: For this subsection, alcoholic beverage is defined as: 2 ORD. NO. 42-03 Distilled spirits and all beverages containinq one-half of I pement (0.5%) or more alcohol by volume. (2) Prohibitions by Frequency: The sale of alcoholic beverages for on- site consumption shall be allowed as a principal use within ccc~c!! !c'.'n~cc =.-.d b=m stand alone bars and as an accessory use in chartered private clubs and golf courses with the restriction that: (a) Not more than one ~ stand alone bar shall be located within any one block ~r..,.~; ...... ,r~.~ · nor within seven hundred and fifty (750) feet of another stand alone bar measured from lot line to lot line in a straiqht line. (b) The above restriction does not apply to a duly licensed qrocery store which sells beer and wine in packa,qes for off-site consumption nor does it apply to a restaurant which holds a special restaurant license issued by the Department of Business Re,qulations of the State Division of Alcoholic Beveraqes and Tobacco. (3) Prohibition by Proximity (Schools and Churches): Alcoholic beverages shall not be sold at any establishment which is located within 300 feet of an established school or church. (a) With respect to schools, the 300' distance shall be measured from the nearest point of the building of the place of business, location, or establishment to the nearest point of the school grounds in use as a part of the school facilities. (b) With respect to churches, the 300' distance shall be measured from the nearest point of the building of place of business, location, or establishment to the nearest point of the church building or buildings. (c) The 300' distance shall be measured in a straight line. (d) The above restriction does not apply to a duly licensed grocery store which sells beer and wine in packages for off-site consumption nor does it apply to a restaurant which holds a special restaurant license issued by the Department of Business Regulations of the State Division of Alcoholic Beverages and Tobacco. (4) Bottle Clubs Prohibited: Bottle Clubs as defined in r,=~,, S~ct!c= ~. ~.37.8 Appendix A are prohibited in all zone districts. 3 ORD. NO. 42-03 Section 3. That should any section or provision of this ordinance or any portion thereof, any paragraph, sentence, or word be declared by a court of competent jurisdiction to be invalid, such decision shall not affect the validity of the remainder hereof as a whole or part thereof other than the part declared to be invalid. Section 4. That all ordinances or parts of ordinances in conflict herewith be, and the same are hereby repealed. Section 5. That this ordinance shall become effective immediately upon its passage on second and final reading. of PASSED AND ADOPTED in regular session on second and final reading on this ., 2003. day ATTEST: MAYOR CITY CLERK First Reading. Second Reading. 4 ORD. NO. 42-03 TO: THRU: FROM: SUBJECT: DA~j,~D T. HA,RDEI~ CI,TY MANAGER P~[~~CTO__R" {'~,n J~.,,' OF PLANNING AND ZONING MEETING OF NOVEMBER 18, 2003 AMENDMENT TO THE LAND DEVELOPMENT REGULATIONS SECTION 4.3.3(AA) (ADULT ENTERTAINMENT ESTABLISHMENTS) IN ORDER TO AMEND THE DISTANCE LIMITATION BETWEEN ALCOHOLIC BEVERAGE ESTABLISHMENTS AND ANY ADULT ENTERTAINMENT ESTABLISHMENT. At its meeting of October 20, 2003, the Planning and Zoning Board recommended approval of an LDR amendment regarding distance limitations between alcoholic beverage establishments and adult entertainment establishments. The amendment included changing the distance limitation between alcoholic beverage establishment and any adult entertainment establishment from 750 feet to 200 feet. The amendment also included a change to the manner in which the distance is measured from lot line to lot line along a straight airline route, to the shortest route of ordinary pedestrian travel. Subsequent to the Planning and Zoning Board meeting, Staff reconsidered the method of measurement and recommends that the measurement from lot line to lot line along a straight airline route be retained. Pursuant to LDR Section 2.4.5(M)(5), approval of an LDR amendment must be based upon a finding that the amendment is consistent with and furthers the Goals, Objectives, and Policies of the Comprehensive Plan. This amendment is being initiated more to establish reasonable regulations than to fulfill any specific Comp Plan policy. While the amendment does not specifically further the Goals, Objectives, and Policies of the Comprehensive Plan, it is not inconsistent with them. The Planning and Zoning Board will consider the amendment at their meeting of November 17, 2003. The Board's recommendation will be provided at the City Commission meeting. By motion, approve on first reading the ordinance amending Land Development Regulations Section 4.3.3(AA) (Adult Entertainment Establishments), based upon positive findings with LDR Section 2.4.5(M). Attachment: Ordinance by Others ORDINANCE NO. 43-03 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AMENDING THE LAND DEVELOPMENT REGULATIONS OF THE CITY OF DELRAY BEACH, AMENDING CHAPTER FOUR, "ZONING REGULATIONS"; SECTION 4.3.3(AA), "ADULT ENTERTAINMENT ESTABLISHMENTS", IN ORDER TO AMEND THE DISTANCE LIMITATION BETWEEN ALCOHOLIC BEVERAGE ESTABLISHMENTS AND ADULT ENTERTAINMENT ESTABLISHMENTS IN ORDER TO PROVIDE FOR A DISTANCE OF TWO HUNDRED (200) FEET BETWEEN ANY ALCOHOLIC BEVERAGE ESTABLISHMENT AND ANY ADULT ENTERTAINMENT ESTABLISHMENT; PROVIDING A SAVINGS CLAUSE, A GENERAL REPEALER CLAUSE, AND AN EFFECTIVE DATE. WHEREAS, the City Commission of the City of Delray Beach, Florida, has the authority to protect the public health, safety and welfare of its citizens; and WHEREAS, this ordinance is enacted under the home rule of power of the City of Delray Beach, in the interest of health, peace, safety, and general welfare of the people of the "City of Delray Beach," hereafter the "City" and WHEREAS, the intent of the City Commission of the City of Delray beach in adopting this ordinance is to establish reasonable and uniform regulations for the adult entertainment industry that will protect the health, safety, property values, and general welfare of the people, businesses, and industries of the City. It is not the intent of the City Commission to legislate with respect to matters of obscenity. These matters are regulated by federal and state law, including chapter 847 of the Florida Statutes; and WHEREAS, with respect to zoning and other regulatory issues, the City Commission for the City of Deiray Beach, Flodda, has considered reports, studies, and judicial opinions concerning the adverse secondary effects of adult uses on the community which include but are not limited to the following: I. City of Renton v. Playtime Theaters, Inc., 475 U.S. 411 (1956), reh. denied., 475 U.S. 1132. 873. Younq v. American Mini-Theaters, Inc., 427 U.S. 50 (1975), reh. denied, 429 U.S. 3. Bames v. Glen Theater, Inc., 501 U.S. 560 (1991). 4. City of Los Anqeles v. Alameda Books, Inc., 535 U.S. 425, 122 S.Ct. 1728, 152 L.Ed. 2d 670 (2002). 5. Boss Capital, Inc. v. City of Casselberry, 187 F.3d 1251 (11th Cir. 1999). 6 Report on Zoninq and Other Methods of Requlating Adult Entertainment in Amarillo, (Texas) dated September 12, 1977. 7. Regulation of Cdminal Activity and Adult Businesses, City of Phoenix, May, 1979. 26,1977. Findings of the City Planning Commission of the City of New York dated January 9. Detroit's Approach to Regulating the "Adult Uses" presented to Amedcan Institute of Planners, Annual Conference, October 10, 1977. 10. Report to the City Planning Commission and City Council from the Planning Department of the City of Beaumont, Texas dated September 14, 1982. 11. Legislative Report on an Ordinance Amendinq Section 28-73 of the Code of Ordinances of the City of Houston, Texas; Providing for the Requlation of Sexually Oriented Commercial Enterprises, Adult Bookstores, Adult Movie Theaters and Massaqe Establishments; and Makinq Various Provisions and Findinqs Relatinq to the Subiect. Report prepared by the Committee on the Proposed Regulation of Sexually Oriented Businesses and dated 1983. 12. Report on Adult Oriented Business in Austin. Report prepared by the Special Programs Division of the Office of Land Development Services of the City of Austin, Texas. Dated May 19, 1986. 13. Adult Entertainment Business in Oklahoma City. A Survey of Real Estate Appraisers. Report prepared by the Community Development Department of the City of Oklahoma City, Oklahoma. Dated March 3,1986. 14. Adult Entertainment Businesses in Indianapolis. An analysis prepared by the Department of Metropolitan Development dated February, 1984. 15. Palm Beach County Sheriff's Office report dated April, 1998. 16. Director's Report: Proposed Land Use Code Text Amendment, Adult Cabarets. A report prepared by the Director of the Department of Construction and Land Use of the City of Seattle, Washington. Dated March 24, 1989. 17. Report to the Amedcan Center for Law and Justice on Secondary Impacts of Sex Oriented Businesses, Peter R. Hecht, Ph.D, March 31, 1996. 2 ORD. NO. 43-03 18. Adult Business Study in Town and Villaqe of Ellicottville, Cattarau,qus County, New York. An analysis prepared by the TownNillage Planner, Gary Palumbo, AICP. Dated January, 1998. 19. Adult Use Study in Newport News, Virginia. An analysis prepared by the Department of Planning and Development of the City of Newport News, Virginia. Dated March, 1996. 20. Memorandum of Law on Adequate Altemative Avenues of Community for Sexually Oriented Businesses. An analysis prepared by Laura Corbett Brown and Bruce A. Taylor of the National Law Center for Children and Families. Dated October 1, 1995. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA: Section 1. That Chapter Four, "Zoning Regulations", Section 4.3.3(AA), "Adult Entertainment Establishments", be, and the same is hereby amended to read as follows: (AA) Adult Entertainment Establishments: In addition to the requirements of the underlying zoning district, other applicable general regulations, County licensing requirements, parking regulations and Section 113.20 of the Code of Ordinances of the City of Delray Beach, the following requirements shall apply to adult entertainment establishments. (1) No adult entertainment establishment shall be located on properties with frontage on an arterial road or located east of the CSX railroad track. (2) No adult entertainment establishment shall be located closer than one thousand (1,000) feet from any house of worship, school, residential zoning district, community facilities zoning district (CF, OS, eSR, CD) where the use is or is to be regularly frequented by the general public (i.e. community center, parks, courthouse, child care facilities, offices, etc.) measured from lot line to lot line boundary along a straight airline route, except when the property containing the adult entertainment establishment is separated from the above by the 1-95 right-of-way. (3) No adult entertainment establishment shall be located within sever~ h.....~....~ r.~*.. ~7~m ~....~ two hundred (200) feet of an '~"~*~'--' alcoholic beverage establishment, measured from lot line to lot line boundary along a straight aidine route except if the establishment permittinq nudity or partial nudity is separated from an alcoholic bevera.qe establishment by a Railroad/Corridor or an Arterial roadWay as the width of the Railroad/Corridor and/or Arterial Roadway shall be deemed a sufficient separation. 3 ORD. NO. 43-03 (4) Signage. Only one sign per adult entertainment establishment is permitted, and such sign shall not extend above twelve (12) feet above ground level or have an area of greater than thirty-six (36) square feet. No neon material shall be permitted on the sign. All other restrictions of the sign code shall apply herewith. (5) No adult entertainment establishment shall be located within an historic district, on an historic site, or on properties listed on the Local or National Register of Historic Places, unless the historic district, site or property was previously used for an adult entertainment type use. (6) The minimum floor area per room or partitioned area within an adult entertainment establishment must be 2,000 sq. ft. exclusive of kitchen, restrooms, storage areas, and other non-public/customer area of the establishment. (7) Performers/entertainers or employees in the state of nudity or partial nudity shall not approach within four feet of patrons, customers, or other employees or other performers/entertainers, and must perform/entertain from a stage encompassing an area of at least one hundred (100) square feet. Section 2. That should any section or provision of this ordinance or any portion thereof, any paragraph, sentence, or word be declared by a court of competent jurisdiction to be invalid, such decision shall not affect the validity of the remainder hereof as a whole or part thereof other than the part declared to be invalid. Section 3. That all ordinances or parts of ordinances in conflict herewith be, and the same are hereby repealed. Section 4. That this ordinance shall become effective immediately upon its passage on second and final reading. of PASSED AND ADOPTED in regular session on second and final reading on this __ ,2003. day ATTEST: CITY CLERK First Reading. Second Reading MAYOR 4 ORD. NO. 43-03 [ITY I]F OELAIiY BERgH CITY ATTORNEY'S OFFICE 2°° NW ,s, AVEN.E-D.L.^Y .EACH, FLO.,DA .444 TELEPHONE 561/243-7090 - FACSIMILE 561/278-4755 DELRAY BEACH DATE: TO: FROM: Wdter's Direct Line: 561/243-7090 MEMORANDUM November 12, 2003 City Commission David T. Harden, City Manager Terrill Pybum, Assistant City Attorney SUBJECT: Alcoholic Beverage Establishments and Nudity Attached is Ordinance 43-03, which amends Section 4.3.3 (AA) of our Land Development Regulations. The proposed amendment changes the current distance requirement between adult entertainment establishments and alcoholic beverage establishments from seven hundred and fifty (750) feet to two hundred (200) feet with exception for alcoholic beverage establishments that are separated from adult entertainment establishments by a Railread/Corddor or an Artedal Roadway as the width of the Railroad/Corridor and/or Arterial Roadway is a sufficient separation. The manner of measurement is a straight aidine measurement from property line to property line. Also, the ordinance has been updated by including additional case law regarding public nudity, alcohol, and zoning. Please place the ordinance on the agenda for first reading. Please let me know if you have any questions (7090). Thanks. TCP:smk Attachments ORDINANCE NO. 43-03 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AMENDING THE LAND DEVELOPMENT REGULATIONS OF THE CITY OF DELRAY BEACH, AMENDING CHAPTER FOUR, "ZONING REGULATIONS"; SECTION 4.3.3(AA), "ADULT ENTERTAINMENT ESTABLISHMENTS", IN ORDER TO AMEND THE DISTANCE LIMITATION BETWEEN ALCOHOLIC BEVERAGE ESTABLISHMENTS AND ADULT ENTERTAINMENT ESTABLISHMENTS IN ORDER TO PROVIDE FOR A DISTANCE OF TWO HUNDRED (200) FEET BETWEEN ANY ALCOHOLIC BEVERAGE ESTABLISHMENT AND ANY ADULT ENTERTAINMENT ESTABLISHMENT; PROVIDING A SAVINGS CLAUSE, A GENERAL REPEALER CLAUSE, AND AN EFFECTIVE DATE. WHEREAS, the City Commission of the City of Delray Beach, Florida, has the authority to protect the public health, safety and welfare of its citizens; and WHEREAS, this ordinance is enacted under the home rule of power of the City of Delray Beach, in the interest of health, peace, safety, and general welfare of the people of the "City of Delray Beach," hereafter the "City" and WHEREAS, the intent of the City Commission of the City of Delray beach in adopting this ordinance is to establish reasonable and uniform regulations for the adult entertainment industry that will protect the health, safety, property values, and general welfare of the people, businesses, and industries of the City. It is not the intent of the City COmmission to legislate with resPect to matters of obscenity. These matters are regulated by federal and state law, including chapter 847 of the Florida Statutes; and WHEREAS, with respect to zoning and other regulatory issues, the City Commission for the City of Delray Beach, Florida, has considered reports, studies, and judicial opinions Concerning the adverse secondary effects of adult uses on the community which include but are not limited to the following: 1. City of Renton v. Playtime Theaters, Inc., 475 U.S. 411 (1956), reh. denied, 475 U.S. 1132. 873. Youn.q v. American Mini-Theaters, Inc., 427 U.S. 50 (1975), .reh. denied, 429 U.S. 3. Barnes v. Glen Theater, Inc., 501 U.S. 560 (1991). 4. City of Los An.qeles v. Alameda Books, Inc., 535 U.S. 425, 122 S.Ct. 1728, 152 LEd. 2d 670 (2002). 5. Boss Capital, Inc. v. City of Casselberry, 187 F.3d 1251 (11th Cir. 1999). 6 Report on Zonin,q and Other Methods of Re.,qulatin,q Adult Entertainment in Amarillo, (Texas) dated September 12, 1977. 8. 26,1977. Re,clulation of Criminal Activity and Adult Businesse,% City of Phoenix, May, 1979. Findings of the City Planning Commission of the City of New York dated January 9. Detroit's Approach to Re.qulatin,q the "Adult Uses" presented to American Institute of Planners, Annual Conference, October 10, 1977. 10. Report to the City Planning Commission and City Council from the Planning Department of the City of Beaumont, Texas dated September 14, 1982. 11. Le,qislative Report on an Ordinance Amendin,q Section 28-73 of the Code of Ordinances of the City of Houston, Texas; Providin.q for the Re,qulation of Sexually Oriente~l Commemial Enterprises, Adult Bookstores, Adult Movie Theaters and M~-~-~a,qe Establishments; and Makin.q Various Provisions and Findin,qs Relatin.q to the Subiect. Report prepared by the Committee on the Proposed Regulation of Sexually Oriented Businesses and dated 1983. 12. Report on Adult Oriented Business in Austin. Report prepared by the Special Programs Division of the Office of Land Development Services of the City of Austin, Texas. Dated May 19, 1986. 13. Adult Entertainment Business in Oklahoma City. A Survey of Real Estato Appraisers. Report prepared by the Community Development Department of the City of Oklahoma City, Oklahoma. Dated March 3,1986. 14. Adult Entertainment Businesses in Indianapoli~ An analysis prepared by the Department of Metropolitan Development dated February, 1984. 15. Palm Beach County Sheriff's Office report dated April, 1998. 16. Director's Report: Proposed Land Use Code Text Amendment, Adult Cabai~i,.; A report prepared by the Director of the Department of Construction and Land Use of the City of Seattle, Washington. Dated March 24, 1989. 17. Report to the American Center for Law and Justice on Secondary Impacts of Se]: Oriented Businesses, Peter R. Hecht, Ph.D, March 31, 1996. 2 ORD. NO. 43-03 18. Adult Business Study in Town and Villa.qe of EIIicottville, Cattarauqus County, Ne;'_, York. An analysis prepared by the Town/Village Planner, Gary Palumbo, AICP. Dated January, 1998. 19. Adult Use Study in Newport News, Vir,qinia An analysis prepared by the Department of Planning and Development of the City of Newport News, Virginia. Dated March, 1996. 20. Memorandum of Law on Adequate Alternative Avenues of Community for Sexually Oriented Businesses. An analysis prepared by Laura Corbett Brown and Bruce A. Taylor of the National Law Center for Children and Families. Dated October 1, 1995. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA: Section 1. That Chapter Four, "Zoning Regulations", Section 4.3.3(AA), "Adult Entertainment Establishments", be, and the same is hereby amended to read as follows: (AA) Adult Entertainment Establishments: In addition to the requirements of the underlying zoning district, other applicable general regulations, County licensing requirements, parking regulations and Section 113.20 of the Code of Ordinances of the City of Delray Beach, the following requirements shall apply to adult entertainment establishments. (1) No adult entertainment establishment shall be located on properties with frontage on an arterial road or located east of the CSX railroad track. (2) No adult entertainment establishment shall be located closer than one thousand (1,000) feet from any house of worship, school, residential zoning district, community facilities zoning district (CF, OS, OSR, CD) where the use is or is to be regularly frequented by the general public (i.e. community center, parks, courthouse, child cato facilities, offices, etc.) measured from lot line to lot line boundary along a straight airline route, except when the property containing the adult entertainment establishment is separated from the above by the 1-95 right-of-way. (3) No adult entertainment establishment shall be located within seven ..-..~..._~"'"'~-~'~ ~.~.~. ~.~'~r~vv, ~'~'.vv. two hundred (200) feet of an e)dstir~ alcoholic beverage establishment, measured from lot line to lot line boundary along a straight airline route except if the establishment permittin.q nudity or partial nudity is separated from an alcoholic. beveraRe establishment by a Railroad/Corridor or an Arter a roadway as the width of th~'~ Railroad/Corridor and/or Arterial Roadway shall be deemed a sufficient separation. 3 ORD. NO. 43-03 (4) Signage. Only one sign per adult entertainment establishment is permitted, and such sign shall not extend above twelve (12) feet above ground level or have an area of greater than thirty-six (36) square feet. No neon material shall be permitted on the sign. All other restrictions of the sign code shall apply herewith. (5) No adult entertainment establishment shall be located within an historic district, on an historic site, or on properties listed on the Local or National Register of Historic Places, unless the historic district, site or property was previously used for an adult entertainment type use. (6) The minimum floor area per room or partitioned area within an adult eritertainment establishment must be 2,000 sq. ft. exclusive of kitchen, restreoms, storage areas, and other non-public/customer area of the establishment. (7) Performers/entertainers or employees in the state of nudity or partial nudity shall not approach within four feet of patrons, customers, or other employees or other performers/entertainers, and must perform/entertain from a stage encompassing an area of at least one hundred (100) square feet. Section 2. That should any section or provision of this ordinance or any portion thereof, any paragraph, sentence, or word be declared by a court of competent jurisdiction to be invalid, such decision shall not affect the validity of the remainder hereof as a whole or part thereof other than the part declared to be invalid. Section 3. That all ordinances or parts of ordinances in conflict herewith be, and the same are hereby repealed. Section 4~ That this ordinance shall become effective immediately upon its passage on second and final reading. of PASSED AND ADOPTED in regular session on second and final reading on this __ ,2003. day ATTEST: CITY CLERK First Reading Second Reading MAYOR 4 ORD. NO. 43-03 [lTV OF I)ELRI:I¥ BEri[H CITY ATTORNEY'S OFFICE 200NW i., AVE, .E-, EL,,AY,,EACH. FLO,., ^,344. TELEPHONE 561/243-7090 · FACSIMILE 561/278-4755 DELRAY BEACH DATE: TO: FROM: MEMORANDUM November 12, 2003 City Commission David T. Harden, City Manager Terrill Pyburn, Assistant City Attorney Writer's Direct Line: 561/243-7C90 SUBJECT: Alcoholic Beveraqe Establishments and Nudity Attached is Ordinance 44-03, which amends Section 113.20 of our Code of Ordinances. The proposed amendment changes the current distance requirement between adult entertainment establishments and alcoholic beverage establishments from seven hundred and fifty (750) feet to two hundred (200) feet with exception for alcoholic beverage establishments that are separated from adult entertainment establishments by a Railroad/Corridor or an Arterial Roadway as the width of the Railroad/Corridor and/or Arterial Roadway is a sufficient separation. The manner of measurement is a straight airline measurement from property line to property line. Also, the ordinance has been updated by including additional case law regarding public nudity, alcohol, and zoning. Please place the ordinance on the agenda for first reading. Please let me know if you have any questions (7090). Thanks. TCP:smk Attachments ORDINANCE NO. 44-03 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AMENDING THE CODE OF ORDINANCES OF THE CITY OF DELRAY BEACH, AMENDING CHAPTER 113, "ALCOHOLIC BEVERAGES", SECTION 113.20, "PROHIBITION OF NUDITY, PARTIAL NUDITY, SEXUAL CONDUCT AT ALCOHOLIC BEVERAGE ESTABLISHMENTS", SUBSECTION (A) "DEFINITIONS", IN ORDER TO PROVIDE FOR THE INCLUSION OF STAND ALONE BARS IN THE DEFINITION OF ALCOHOLIC BEVERAGE ESTABLISHMENT; AMENDING SUBSECTION (C) IN ORDER TO PROVIDE FOR A DISTANCE OF TWO HUNDRED (200) FEET BETWEEN ANY ALCOHOLIC BEVERAGE ESTABLISHMENT AND ANY ESTABLISHMENT PERMITTING NUDITY; PROVIDING A SAVINGS CLAUSE, A GENERAL REPEALER CLAUSE, AND AN EFFECTIVE DATE. WHEREAS, the City Commission of the City of Delray Beach, Florida, has the authority to protect the public health, safety and welfare of its citizens; and WHEREAS, the City Commission has determined it to be in the public's establish reasonable regulations regarding alcoholic beverage establishments City; and best interest to throughdut the WHEREAS, the City Commission enacts this ordinance in the interest of the public health, peace, safety morals and general welfare of the citizens of Delray Beach, Florida, pursuant to Article VIII, Sections 2(b) and (5), of the Florida COnstitutiOn, and Chapter 166, Section 166.021 of the Florida Statutes; and WHEREAS, the City has determined that the restrictions contained herein are necessary to avoid disturbances associated with mixing alcohol and nude or partially nude dancing and exhibitions; and WHEREAS, the City Commission determines that mixing alcohol and nude or partially nude dancing and exhibitions encourages undesirable behavior; and WHEREAS, the City relies on the materials referenced in Ordinance No. 30-98, as amended by Ordinance No. 43-03, and the experience in other cities as to the secondary effects of the combination of alcohol and nudity or partial nudity; and WHEREAS, the City relies on the cases of Barnes v. Glen Theatre, Inc., 501 U.S. 560, 111 S.Ct. 2456, 115 L.Ed. 2d 504 (1991); City of Erie v. Pap's A.M., 529 U.S. 27, 120 S.Ct. 1302, 146 L.Ed. 2d 265 (2000); California v. LaRue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed. 2d 342 (1972); 44 Liquormart, Inc. v. Rhode Island, 116 S.Ct. 1495, 134 LEd. 2d 711 (1996); Flani an Ente rises Inc. v. Fulton County, 242 F.3d 1976 (11th Cir. 2001) and; WHEREAS, the City also relies on the cases of City of Daytona Beach v. Del Percio, 476 So.2d 197 (Fla. 1985); Fillin,qim v. Boone, 835 F.2d 1389 (11th Cir. 1988); Geaneas v. Willets, 911 F.2d 579 (11th Cir. 1990); Sammy's of Mobile, Ltd. V. City of Mobile, 140 F.3d 993 (11th Cir. 1998); New York State Liquor Authority v. Bellan~-~, 452 U.S. 714, 101 S.Ct. 2599 (1981); City of Newport v. lacobucci, 479 U.S. 92, 107 S.Ct. 383 (1986) reversed.; 479 U.S. 1047, 107 S.Ct. 913 (1986) and; WHEREAS, the City Commission finds that the City has a substantial govemment interest in regulating liquor under the City's Police Powers; State Constitution and under State law and that the incidental restrictions on First Amendment activity are no greater than necessary to further that interest. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA: Section 1. That Chapter 113, "Alcoholic Beverages", Section 113.20, "Prohibition of Nudity, Partial Nudity, Sexual Conduct at Alcoholic Beverage Establishments", Subsection (A) "Definitions", of the Code of Ordinances of the City of Delray Beach, be, and the same is hereby amended to read as follows: (A) Definitions. Alcoholic Beverage Establishment: Any business or commercial establishment, whether open to the public at large or entrance is limited by cover charge or membership requirements, including those licensed by the State for sale and-or service of alcoholic beverages, which include but are not limited to, any stand alone bar, bottle club, hotel, motel, restaurant, night club, country club, cabaret, and meeting facility located in the City of Delray Beach in which alcoholic beverages, beer or wine are, or are available to be sold, dispensed, served, consumed, provided, possessed or offered for sale or consumption on the premises. Section 2. That Chapter 113, "Alcoholic Beverages", Section 113.20, "Prohibition of Nudity, Partial Nudity, Sexual Conduct at Alcoholic Beverage Establishments", Subsections (C) and (D) of the Code of Ordinances of the City of Delray Beach, be, and the same are hereby amended as follows: 2 ORD. NO. -03 (C) No alcoholic bevera.qe establishment may be located within two hundred (200) feet of any parcel of land upon which an establishment permittinR nudity or partial nudity is located .... .... · ................. CCVC.". ............. .~ ~. ~v/ ......... · ~. ............. ...........h;"~',,-,, ......,.-..k..,.- k .......... *..k,~ok.......* ' .v..--.v--'"""*"'~. except if the establish · -~- ...................... = .................. ;= ment perm tting nudity or partial nudity is separated from an alcoholic bevera.qe establishment by a Railroad/Corridor or an Arterial roadway as the width of the Railroad/Corridor and/or Arterial Roadway shall be deemed a sufficient separation. (D) For purposes of the above division (C), distance shall be by airline measurement from property line to property line using the closest property lines of the pamels of land involved. The term parcel of land means any quantity of land capable of being described with such definiteness that its location and boundaries may be established, which is designated by its owner or developer as land to be used or developed as a lot or which has been used or developed as a lot. Section 3. That should 'any section or provision of this ordinance or any portion thereof, any paragraph, sentence, or word be declared by a court of competent jurisdiction to be invalid, such decision shall not affect the validity of the remainder hereof as a whole or part thereof other than the part declared to be invalid. Section 4. That all ordinances or parts of ordinances in conflict herewith be, and the same are hereby repealed. Section 5. That this ordinance shall become effective immediately upon its passage on second and final reading. of PASSED AND ADOPTED in regular session on second and final reading on this ,2003. day ATTEST: MAYOR CITY CLERK First Reading Second Reading. 3 ORD. NO. -03 N ADULT ENTERTAINMENT ESTABLISHMENTS - AVAILABLE LOCATIONS