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Minutes 11-03-10 MINUTES OF THE CITY COMMISSION MEETING HELD IN THE COMMISSION CHAMBERS, CITY HALL, BOYNTON BEACH, FLORIDA, AT 6:30 P.M., ON WEDNESDAY, NOVEMBER 3, 2010 PRESENT: Jose Rodriguez, Mayor Marlene Ross, Vice Mayor William Orlove, Commissioner Woodrow L. Hay, Commissioner Steven Holzman, Commissioner Kurt Bressner, City Manager James Cherof, City Attorney Janet Prainito, City Clerk 1. OPENINGS A. Call to order - Mayor Jose Rodriguez B. Invocation by Rev. Nancy Norman of Unity of Delray Beach Church C. Pledge of Allegiance to the Flag led by Commissioner Hay Mayor Rodriguez called the meeting to order at 6:36 p.m. Rev. Norman from the Unity of Delray Beach Church offered the invocation. Commissioner Hay led the Pledge of Allegiance to the Flag. D. Agenda Approval: 1. Additions, Deletions, Corrections Vice Mayor Ross pulled Item 6.C. Commissioner Orlove pulled Item 6.A and asked that the item be tabled to the next meeting. Motion Commissioner Orlove moved to table. Commissioner Hay seconded the motion. The motion passed. Commissioner Holzman pulled Item 6.B, 6.D and 6.F. Mayor Rodriguez also pulled Item 6.B. 2. Adoption Meeting Minutes Regular City Commission Boynton Beach, FL November 3, 2010 Motion Vice Mayor Ross moved to adopt the agenda as amended. Commissioner Hay seconded the motion. The motion passed unanimously. 2. OTHER A. Informational Items by Members of the City Commission Commissioner Hay was thrilled with the Dimensional Harmony Choir that had won a national competition. He had also attended the ceremony with Habitat for Humanity when keys were given to a new homeowner. Commissioner Orlove reminded everyone Veterans Day was November 11th and Boynton's Veterans Council would hold a ceremony on Veterans Day at Veterans Bicentennial Park at 10 a.m. Commissioner Orlove mentioned Jack McVey, President of the East Boynton Beach Little League had endured a liver transplant. The Little League would be holding a fundraiser at the ball field at 7 p.m. on Friday, November 5, 2010 and tickets were $3. Food would be available and a movie would be shown with all proceeds donated to Mr. McVey for his recovery and expenses. Commissioner Hay added Galaxy Elementary School was also having a Veterans Day program at 8 a.m. It was by invitation as a classroom function. Vice Mayor Ross announced there would be a blood drive for platelets and plasma to aid Maggie Schoenfeld at the Police Department on November 8, 2010. She had also attended the Habitat for Humanity ceremony. She visited a multicultural event that had been held at Boynton Beach High School with the culinary students providing the food. Science projects were also being featured. Vice Mayor Ross would also be a speaker at the 5K "Out of the Darkness" walk being held at John Prince Park on November th. It was being sponsored by the American Foundation for Suicide Prevention. Mayor Rodriguez proudly announced the City of Boynton Beach, for the second year, won the "Read for the Record" award for City officials and staff's participation. The prize was 40 pounds of books. The Mayor also thanked all those who had voted in the General Election. 3. ANNOUNCEMENTS, COMMUNITY & SPECIAL EVENTS & PRESENTATIONS A. Presentation of check to the City of Boynton Beach for $1,500.00 donated from Kentucky Fried Chicken for the American Heart Association fundraising drive. The check will be presented by Mr. Juan Carlos Gavilan, owner. 2 Meeting Minutes Regular City Commission Boynton Beach, FL November 3,2010 Mr. Gavilan indicated it was a pleasure to work with the City and looked forward to future partnerships. A copy of the check was presented to Mayor Rodriguez. Mr. Bressner announced the City of Boynton Beach had contributed over $38,000 as part of the overall team effort including the donation from Kentucky Fried Chicken. The City of Boynton Beach placed 3rd for total donations and one walker, Terry Corcoran in the Police Department ranked third as an individual, collecting over $10,000. Mr. Bressner commended Joyce Costello and Kevin and Jamie who assisted in organizing the effort. B. Presentation of a Tribute to the Boynton Beach High School Dimensional Harmony Chorus, under the direction of Fredrick Sterling A short video was displayed showing the Today Show segment announcing the winners with 115,000 votes. The Chorus would be going to New York City to sing during the show on November 12, 2010. Mayor Rodriguez was very proud of the Chorus for this accomplishment and read and presented a Tribute to the Chorus, under the direction of Sterling Frederick, for their talent, achievement and showmanship. The Director and two of the Chorus members were present and given a standing ovation by the audience. Mr. Bressner noted the Chamber of Commerce through their Education Foundation and the CRA Board, worked together so the Choir could spend one additional night in New York City to see the lights of Times Square. C. Presentation by the Haitian Community Council President of the Haitian Community Council asserted there was a growing and vibrant Haitian Community within the City of Boynton Beach. The Mayor had requested the Haitian Community Council be organized. There were seven members, five of which were present. Their mission was to be an advocate for the Haitian community and be involved and a part of the community growth. The Presdient advised they would work on school violence and support affordable housing. Education would be a valuable tool to promote working together to improve the City. He thanked the Commission for allowing them to be a liaison between the Haitian community and the City. Mayor Rodriguez claimed the Council had taken a huge leadership role within the City and they were very self-directed and enthusiastic to continue their efforts. 4. PUBLIC AUDIENCE INDIVIDUAL SPEAKERS WILL BE LIMITED TO 3 MINUTE PRESENTATIONS (at the discretion of the Chair, this 3 minute allowance may need to be adjusted depending on the level of business coming before the City Commission) 3 Meeting Minutes Regular City Commission Boynton Beach, FL November 3,2010 Gertrude Sullivan, 201 NE 6th Avenue, sought direction on who the Heart of Boynton Association should contact now that the Neighborhood Specialist position had been eliminated. Mr. Bressner clarified the employee involved was assigned to the Victim's Advocacy Department in the Police Department to assist with the issues involved. Community groups or homeowner associations could contact the City Manager's office who will provide staff assistance. Ms. Sullivan accused the Mayor of stalling efforts to establish a new CRA Board and wanted to know the reason. Commissioner Hay inquired if a small portion of the Neighborhood Specialist position could be reinstated. Mr. Bressner would speak with the Chief of Police on the issue and make a report. No one else coming forward, Mayor Rodriguez closed the public audience. 5. ADMINISTRATIVE A. Appoint eligible members of the community to serve in vacant positions on City advisory boards. Motion Commissioner Orlove moved to table the appointments. Commissioner Hay seconded the motion. The motion passed. 6. CONSENT AGENDA Matters in this section of the Agenda are proposed and recommended by the City Manager for "Consent Agenda" approval of the action indicated in each item, with all of the accompanying material to become a part of the Public Record and subject to staff comments. A. Approve the Minutes from the City Commission meeting held on October 19, 2010. (This item was tabled to November 16, 2010) B. PROPOSED RESOLUTION NO. R10-156 - Approve Agency Participation Agreement for American Express Card Acceptance by the City of Boynton Beach and authorize the City Manager to execute the Agreement on behalf of the City. Commissioner Holzman and Mayor Rodriguez had pulled Item 6.B for discussion. Commissioner Holzman wanted clarification on the rates to be paid. Barry Atwood, Director of Finance, advised the rates were under the State contract and would depend 4 Meeting Minutes Regular City Commission Boynton Beach, FL November 3, 2010 on the volume of use. Commissioner Holzman claimed there would be cost to the City if a certain volume was not reached and there would be a higher rate. Mr. Atwood contended the volume would go down for Visa and MasterCard so the cost would be inconsequential. He reiterated the rates were set by State contract. Motion Commissioner Holzman moved to table Proposed Resolution R10-156. Commissioner Hay seconded the motion. Commissioner Hay wanted to know the reason for adding American Express. Mr. Bressner understood it was based on customer requests. Mayor Rodriguez alleged American Express had always had higher rates than the other cards and based on volume. He did not anticipate there would be a high volume in the City of Boynton Beach. Mr. Atwood asserted the past practice of higher rates did not exist and the rates were basically the same. A specific request came from the Boynton Beach Mall indicating they could pay their bill 30 days quicker if they could use American Express which would practically pay for its use. The motion passed. C. PROPOSED RESOLUTION NO. R10-157 - Award the Consultant Agreement for Financial Advisory Services to Public Financial Management, Inc. (PFM) to assist and advise the City with (a) capital financing and related debt issuance and (b) business transactions with financial institutions. Vice Mayor Ross asked the names of those on the selection committee. Mr. Atwood replied they were staff from Utilities and the budget team. She inquired if the previous contract was for a period of five years. Mr. Atwood responded the previous contract was for three years with two, one-year extensions. This contract would be initially five years with two, one-year renewals possible. Commissioner Holzman asked the number of vendors who had responded to the Request for Proposal (RFP) and it was ascertained there were four. Mr. Atwood alleged it took three years for the consultant to familiarize themselves with the process to be more effective and efficient. Motion Vice Mayor Ross moved to approve Resolution No. R10-157. Commissioner Hay seconded the motion. The motion passed. D. PROPOSED RESOLUTION NO. R10-158 - Approve the Contract with RESPECT of Florida for janitorial services at the Utility Department's Administration Building, East Water Treatment Plant and West Water 5 Meeting Minutes Regular City Commission Boynton Beach, FL November 3, 2010 Treatment Plant for an annual expenditure of $49,960.84 for the period October 1, 2010- September 30, 2011. Commissioner Holzman had pulled Item 6.D for discussion. He understood the prices were going up and with the current economy, prices should be going down. Mr. Bressner explained the vendor had been selected by State legislature to provide the services with an allowance to municipalities who hire the firm. There should be a comparison with the cost for current custodial services. Mayor Rodriguez did not understand why all the janitorial contracts were not consolidated under one vendor. Mr. Bressner acknowledged it was not included in the scope of services because historically the Utilities organization was separated at least to obtain pricing. The additional data would be furnished. Motion Commissioner Holzman moved to table Item 6.D. Commissioner Orlove seconded the motion. The motion passed. E. PROPOSED RESOLUTION NO. R10-159 - Approve the Interlocal Agreement between the Board of County Commissioners, Palm Beach County, Florida and the City, authorizing the City to enter into an agreement to receive funding in the amount of $71,352 to support the Youth Empowerment Center located at the Carolyn Sims Center. F. Authorize City staff to commence consultant fee negotiations with selected firm for the design services of repair and/or partially replace/relocate a portion of the "STORMWA TER BASIN BOARDWALK FOR THE CITY OF BOYNTON BEACH". Commissioner Holzman had pulled Item 6.F for discussion. He inquired if the boardwalk would require closing for the renovations. Jeff Livergood, Director of Public Works and Engineering, indicated the request was for permission to negotiate for design services. Once completed, a construction contract would need approval and portions of the boardwalk would be closed at times and in phases. Motion Commissioner Holzman moved to approve. Commissioner Hay seconded the motion. The motion passed unanimously. 7. BIDS AND PURCHASES OVER $100,000 A. PROPOSED RESOLUTION NO. R10-160 - Approve a "piggy-back" of the City of Lake Worth's contract (contract # UT-WAT-09-10-775) with Aquifer 6 Meeting Minutes Regular City Commission Boynton Beach, FL November 3,2010 Maintenance and Performance Systems, Inc. (AMPS, Inc.) with the same terms, conditions, specifications and pricing for an estimated annual expenditure of $350,000. Motion Commissioner Hay moved to approve. Commissioner Orlove seconded the motion. The motion passed. 8. CODE COMPLIANCE & LEGAL SETTLEMENTS None 9. PUBLIC HEARING 7 P.M. OR AS SOON THEREAFTER AS THE AGENDA PERMITS The City Commission will conduct these public hearings in its dual capacity as Local Planning Agency and City Commission. A. Approve The Slomin Family Center (NWSP 10-005) new site plan to construct a private school campus with a daycare, community center, and clinic for individuals and families affected by autism, on a 4.59-acre parcel in the C-3 zoning district. Applicant: Sannlor Properties, LLC (TABLED ON 10-19-10) Motion Commissioner Hay moved to remove from the table. Vice Mayor Ross seconded the motion. The motion passed. Attorney Cherof administered an oath to all those intending to testify. He explained staff would make a very brief overview. Kathleen Zeitler, City Planner, described the scope of the project to be constructed in two phases on the property at 3005 South Congress Avenue. It is currently vacant commercial and zoned C-3. Staff had reviewed the request and with the 24 conditions of approval the project would comply with Code requirements. Engineering recommended conditions of approval to monitor traffic flow and require additional traffic analysis and road improvements. The request had been tabled from the last Commission meeting and the applicant and staff were directed to work together to address potential traffic circulation issues. The conditions of approval had not been revised. 7 Meeting Minutes Regular City Commission Boynton Beach, FL November 3, 2010 Mr. Livergood had identified six areas of concern expressed at the previous meeting and the report submitted responded to those issues. Commissioner Orlove appreciated the work done. He remained adamant about using an access in the northeast corner even though there was speculation the County would not approve the use. Mr. Livergood affirmed the access would allow traffic to exit onto Congress Avenue. Palm Beach County staff was not in favor of placing an additional access onto an arterial roadway. From an engineering standpoint, the approach is to minimize the access onto a fast moving arterial roadway that could create conflict for right angle collisions for vehicles exiting the site. The inbound access has to be minimal to avoid a backup of traffic and rear-end collisions on southbound Congress Avenue. Weaving patterns would be a concern as traffic exits the driveway and headed south from a left turn lane. The driver's attention needs to be focused on the intersection rather than exiting traffic close to the intersection. It would be a safety issue. A signalized traffic intersection would be preferred. There is an ability for traffic entering or exiting the site to use the driveway adjacent to Manor Care. The driveway would need to be closed during peak hours to avoid merging traffic with those vehicles in the queue and traffic blocking the Manor Care parking area. Chris Cooper, 500 Park Avenue, New York City, compared the data from 2005, 2007 and 2009. The a.m. peak hour turning into the site would be 68 cars per hour in 2009. The exit rate from Charter Drive during p.m. peak hours, 4 p.m. to 7 p.m., after the school is closed, is 122 cars. The rate has been consistent through the years. Commissioner Orlove opined November would not be the peak of the season here in South Florida. Kyle Duncan, 5601 Corporate Way, West Palm Beach, advised the study was provided by the County. The data was not available for January, February and March. The peak season factor the County would apply in this area would be a 6% increase. The volume on Congress Avenue in the a.m. peak hour is 2,600 and in the p.m. peak hours approximately 3,000. Mr. Cooper clarified the proposed changes from the previous site plan. He emphasized the school would be private and the County would not bus children to the site in large buses. Some children could be shuttled in small van type vehicles. It would be a long, slow evolution to attain the capacity of 500 students over ten years, if at all. Staggered drop-offs would be in 20-minute intervals with 100 to 120 students. The change involved all vehicles going into the queue area with a double stack before leaving the site onto Charter Drive. Mr. Livergood added Charter Drive consists of two lanes westbound with the right lane dropping to turn right onto Palmland Drive and the left continuing through. The proposal would have the right lane drop as a merge lane putting all traffic westbound into one lane. The traffic exiting the site would have only one lane to cross rather than two, providing additional safety. There would be a slight lane for right turns to Palmland. 8 Meeting Minutes Regular City Commission Boynton Beach, FL November 3, 2010 Mayor Rodriguez stressed the economic impact was an issue that had to be considered. He asked Attorney Cherof if the Commission could approve projects without the tax exemption. Attorney Cherof replied there was not and the consideration of the economics as it applies to taxation is not an element of site plan review according to the Code of Ordinances. Mr. Bressner recalled he had requested the fiscal impact be included in the staff reports. The current taxable value is $1.3 million. The current property tax for all taxing bodies was $30,417 and non ad valorem tax was $12,612. The City's share of the tax dollars would be $9,155.49 plus the fire assessment of $12,421.56. Those figures were based on the continued use as a medical facility or nursing home. The proposed building site is vacant at this time. As a school, it would be exempt from the fire assessment. Mayor Rodriguez estimated the loss to the City would be approximately $30,000. Commissioner Holzman asserted the fiscal impact was more pertinent than the traffic. Congress Avenue constitutes the commercial life blood of the City and it continues to be squandered for parks and other schools. A commercial cluster should be created to assist in diminishing the tax burden for the residents. The City has the lowest concentration of parcels in the County for the size of the City. It would be nice to have an autism school if they come in as a for-profit organization. There are currently 16 charter schools in the City who pay no taxes. The economic impact has to be a paramount consideration for the future. Dr. Kristen Miller, 5323 Whispering Oak Boulevard, Hilliard, Ohio, Administrator of the School, advised the school would employ 88 staff members and special education instructors were being recruited from outside the State. Many young families would be relocating to the area. Approximately 25% of the families associated with the school would be moving to the area for the specialized setting. She projected the percentage may be higher in Florida. Research-based data reflected the monies lost would be recouped 100% by a facility of this type compared to monies spent to support autistic individuals as they grow. Mayor Rodriguez countered that the County, rather than the municipalities, offer social services in Florida and the Palm Beach County School District provided services for the special needs. The Mayor stressed the issue was not the need for the children and their families, but rather the responsibility of the Commission to assure the tax base is adequate to support all taxpayers. No one was questioning the type or quality of the services being provided by the facility. Commissioner Holzman believed the families would not be moving to Boynton Beach and adding to the tax base. It is a wonderful venture; however, the economic impact had to be considered for the future. Commissioner Orlove inquired if any other entities had shown interest in developing the site and Quintus Greene, Development Director, responded he was not aware of any. Mr. Greene did mention every proposed use along the south corridor had to deal with the issue of traffic particularly as it relates to Hunters Run. Whether the site is used as 9 Meeting Minutes Regular City Commission Boynton Beach, FL November 3, 2010 commercial or a school, the traffic would be problematic. The scope of the impact should also involve the quality of the community that Boynton Beach wants to become. This would be a unique facility for the region as is the boundless playground. Dr. Miller clarified the project was a center that offered occupational and speech therapy, salon services for kids, dental and psychological services with the school as one portion of the project. The facility would be one of only two in the country. It could only operate as a non-profit since the goal was to service families without the financial means to receive the services provided. Commissioner Holzman corrected the previous assertion that the facility would bring people with money to the area if it only serves those who cannot afford the services. Dr. Miller asserted autism strikes families with and without money. The services would not reach all the families in need. Dr. Miller acknowledged the school district does attempt to provide for autistic children, but cannot provide the level of services needed to meet the needs of the children, so many are home schooled rather than attending the public school system. Commissioner Orlove had knowledge that many children are in classrooms with teachers who are not properly trained, without the proper background to deal with the student having special needs. Dr. Miller confirmed the staff would be specifically trained to deal with the issues. Vice Mayor Ross was an educator and understood the economic concern and the connection that would be symbiotic with the boundless park. She questioned if the void of this type of care and education in the community could be addressed. Lloyd Bucher, 21687 Fall River Drive, Boca Raton, parent of a 12 year-old autistic child, would move to Boynton Beach to be part of the center and had moved many times for his son's benefit. Many other parents had done the same. He felt the economic impact would be dramatically increased and attract the best teachers, therapists, doctors and parents who want the best for their kids. His child had been in public schools and in charter schools and had been kicked out of the system. David Gold, 6 Sutton Drive, spoke on behalf of Hunters Run. He claimed Hunters Run had supported the boundless park and held Charter Drive was a narrow lane in comparison to Congress Avenue. He expressed concern that emergency vehicles would not be able to access Charter Drive due to traffic chaos. Mr. Gold suggested ingress and egress should be onto Congress Avenue. There was no objection to the school, just the traffic volume and flow. Joyce Mura, 1555 Palmland Drive, reiterated her concern regarding traffic in light of the existing issues with school buses using Charter Drive as a turn around area and the many vehicles parking along the streets to pickup their children from bus stops. 10 Meeting Minutes Regular City Commission Boynton Beach, FL November 3, 2010 Maria Billic, 1534 Palmland Drive, understood the queue area would hold 70 cars, but approximately 120 cars would be coming to the school creating backup onto Congress Avenue. With the additional traffic, walking to the boundless playground would be unsafe. The economic base of the existing homeowners was being sacrificed for an economic impact of zero. She suggested more thought should be given to the decisions being made. Brent Winter, 2062 Hermitage Drive, Wellington, moved to Florida specifically for the Center. He moved two years ago to the area with a six-year old autistic child. The traffic complaints were speculative at best. Families and children need the school. It was embarrassing to hear the argument that tax dollars would be sacrificed when monies would come to the area from many unknown locations. The economic impact was also speculative in his opinion. Don Scantlan, 13 Cedar Circle, asserted the tax-base argument was not complete because revenues could be added in other ways such as annexation or raising property values by making it a place where people wanted to live. This is a commercial property and with a commercial use, the traffic would be and issue and possibly a greater issue than with the school. Non-profits did bring to a community many things other than cash. Russ Johnson, 17451 Springtree Lane, Boca Raton, was the Director of the Special Needs Children Ministry at Ascension Catholic Church. The first week there were 270 families and volunteers who registered. Some of the funding monies were from New York, Minnesota and Ohio. If the Center did not locate to Boynton Beach, he was prepared to move his family. In the Ministry, families came in shattered with many needs seeking assistance. The families are desperate for assistance and will travel and if possible, pay whatever is necessary for help and hope. Richard Ash, 1655 Palmland Drive, had seen the saturation of traffic in the area over the years and the proposed school would escalate safety issues and traffic issues based solely on logistics. Mayor Rodriguez requested discussion on the right turn only suggestion onto Congress Avenue. Mr. Livergood responded it would be easier to exit to the signaled intersection and make a left turn rather than cross lanes to make a u-turn. It would cause additional delay at the intersection for making u-turns. Mr. Bressner maintained the entire internal flow at the intersection would have to be reconstructed and traffic flow redesigned. Mayor Rodriguez wanted alternatives reviewed to be as flexible as possible to have access to the school and the residents have access and feel safe. 11 Meeting Minutes Regular City Commission Boynton Beach, FL November 3, 2010 Motion Commissioner Orlove moved to approve the Slomin Family Center incumbent upon working with the City and County to re-work the entrance and exit onto Congress Avenue. Attorney Cherof advised the motion lacked sufficient detail because it was a site plan review. Mr. Bressner asserted the City did not have jurisdiction over Congress Avenue. Commissioner Orlove restated his motion to approve the Slomin Family Center incumbent upon re-design exiting and entering the site. Commissioner Holzman held it had to be a definitive motion. Attorney Cherof advised a time period added to the motion would constitute approval of the site plan conditionally. If the applicant cannot provide a traffic plan that met the Commission's approval within the time period, the approval would be rescinded. Mr. Livergood understood the intent of the motion, but cautioned it was highly unlikely the County would approve the proposed change onto Congress Avenue. Mr. Bressner summarized the proposed change shifted the access further to the west and utilized Charter Drive that has a signalized intersection at Congress and functions with a left turn signal and lane. Mr. Livergood further explained the proposed changes from the last discussion regarding the safety issue and capacity issue. Moving the access further west gained sight distance for safety. The storage onsite was doubled and with a change in the signal cycle all the vehicles could clear the intersection at one time. Commissioner Orlove theorized regardless of the use of the site, whether commercial or a school, the residents would have traffic concerns. If approved, the police would have to be present to advise parents they cannot park along the roadway to pickup their children from other charter schools and buses. In his view, the proposed change was the best possible solution to the traffic problems and there was not another solution. Commissioner Orlove maintained all possibilities needed to be fully investigated. Motion Commissioner Orlove moved to approve the Slomin Family Center and to come back with a revised traffic flow pattern with a date certain of the December City Commission meeting. Commissioner Hay seconded the motion. Mayor Rodriguez articulated a written refusal from the County was needed to fully satisfy the concerns of the Commission and the residents. Mr. Bressner reiterated staff 12 Meeting Minutes Regular City Commission Boynton Beach, FL November 3, 2010 had received a negative response from the County. The next step would be to contact Commissioner Abrams and other Commissioners to solicit input and assistance to work with their engineering staff to determine if there is any further flexibility with the County. There are core engineering practices that need to be met to maintain safety. The motion passed 4-1 (Commissioner Holzman dissenting). Commissioner Orlove wanted to be personally involved in the process because it was in his District and he wanted to strongly assist in the ultimate approval of the project. Attorney Cherof dictated the site plan was approved with an additional condition. The wording of the condition would require the Commission to determine whether or not the condition imposed had been met. If the Commission determines the condition has not been satisfied an alternative motion would have to be made or the site plan would be den ied. (Commissioner Orlove left the dais) B. PROPOSED RESOLUTION NO. R10-161 - Approve (1) authorizing the issuance of Series 2010 revenue bonds not to exceed the amount of $8,050,000 on behalf of the Charter Schools of Boynton Beach, Inc. (the School) for the purpose of providing funds to payor reimburse the cost of the facilities to be acquired and equipped by the School and to pay certain costs of issuance of the 2010 bonds; (2) authorizing the execution, delivery and/or use of a trust indenture, loan agreement, bond purchase agreement, and other documents and the performance of obligations thereunder; (3) authorizing the negotiated sale of the 2010 bonds to Municipal Capital Markets Group, Inc. and delegating the Mayor and City Manager to fix the final terms and conditions of the 2010 bonds and documents subject to certain parameters; (4) appointing TD Bank, N.A. as the trustee, paying agent and registrar; requiring indemnification; and (5) authorizing further acts on behalf of the City in connection with the 2010 bonds. Mr. Atwood advised there would be no financial impact with respect to taxes on the project. The school is currently a lessee and not paying taxes on the property they occupy. The City would issue the bonds, lend the money to the school with a mortgage on the property guaranteed through the trustee. There would be no negative financial impact on the issuance of the bonds. Mayor Rodriguez questioned the loan-to-value with the collateral being the building. The value of the property should be certified to $8 million. Commissioner Holzman agreed and had other issues with the bond issuance. 13 Meeting Minutes Regular City Commission Boynton Beach, FL November 3, 2010 Motion Commissioner Holzman moved to table. Vice Mayor Ross seconded the motion. The motion passed 4-0 (Commissioner Orlove was not present.) C. PROPOSED ORDINANCE NO. 10-029 - FIRST READING - Approve the 2010 update of the Capital Improvements Element (CIE) of the City's Comprehensive Plan for submittal to the Department of Community Affairs (DCA). Attorney Cherof read Proposed Ordinance No. 10-029 by title only on first reading. Those wishing to speak on the matter should be noted on a sign-in sheet with their name and address to receive updated information as the matter proceeded to the State level. Hanna Matras, Senior Planner, reported the Capital Improvement Plan was part of the City's Comprehensive Plan and every year the updated elements have to be submitted to the Department of Community Affairs after adoption. All the information has previously been approved. Motion Vice Mayor Ross moved to approve Proposed Ordinance No. 10-029 on first reading. Commissioner Holzman seconded the motion. Vote City Clerk Prainito called the roll. The vote was 4-0 (Commissioner Or/ove was not present) . 10. CITY MANAGER'S REPORT A. Provide direction to staff regarding the potential conversion of Pence Park into a "dog" park. If project is authorized for further consideration, the matter should be referred to the Recreation and Park Board for further study. Wally Majors, Recreation and Parks Director, reported the proposed location for a dog park was Pence Park, the oldest park in the City's inventory, consisting of approximately three acres. It is a multi-purpose field with a playground, basketball court and restrooms. Recent remodeling was done to accommodate the growing youth population along 4th Street and the use increased. The soccer field had been reserved for exclusive use on many occasions. 14 Meeting Minutes Regular City Commission Boynton Beach, FL November 3, 2010 Mayor Rodriguez interjected there were no funds budgeted for a dog park. Commissioner Holzman asserted there were many avenues for funds with the potential for corporate sponsors. Commissioner Holzman lived in the area and disagreed that the park was experiencing an increase in use. The addition of a dog park to the downtown area would encourage people from neighboring communities to come to the park and spend their tax dollars. The intent was to have staff more fully investigate the cost to construct and maintain a viable dog park in comparison to what was currently being spent on the park. (Mayor Rodriguez passed the gavel to Vice Mayor Ross and left the dais) (Commissioner Orlove returned to the dais) Commissioner Orlove inquired if the adjacent residents had been notified of a possible change of use for the park. Mr. Majors replied no notice had been sent out. A dog park would require fencing and division into three sections with the amenities of drinking water, benches, shading areas, restrooms and dispensers for waste collection. Mr. Bressner commented the request would go to the Recreation and Parks Board to further investigate the proposed change to the park plan and the necessary modifications. The need would be assessed first. Commissioner Orlove established that 85% to 90% of the park would be used for the dog park. Other park sites that were not developed could also be considered. There is a County dog park 12 minutes south of Pence Park. Commissioner Hay encouraged input from property owners in the area be sought. Vice Mayor Ross added there was confusion on the increased use and Commissioner Holzman's rendition of use. Mr. Majors reported that over 90 permits were granted for exclusive use over the past year. Motion Commissioner Holzman moved to have the issue presented to the Recreation and Parks Board and have them return to the Commission with a full evaluation including community feedback. Commissioner Hay seconded the motion. The motion passed. B. Accept the budget status report for the General Fund and the Utility Fund for the twelve (12) month period ended September 30, 2010; 100% of the fiscal year. Mr. Atwood reported on the final accounting for the twelve-month period in the General and Utility Funds. The General Fund net balance came in at $18,000; however, there would be some adjustments to be made. 15 Meeting Minutes Regular City Commission Boynton Beach, FL November 3. 2010 Motion Commissioner Orlove moved to accept the budget status report. Commissioner Hay seconded the motion. The motion passed. C. Select date for joint City Commission/CRA Board Redevelopment Planning Workshop There was discussion about the availability of dates when a quorum would be available. Commissioner Orlove felt it would be more appropriate to have the session before the end of the year. Mayor Rodriguez contended there would be a more fresh perspective after the holidays and just prior to the new Board being seated. There was consensus to have the joint session on Thursday, January 6. 2011 at 6 p.m. 11. UNFINISHED BUSINESS None 12. NEW BUSINESS None 13. LEGAL A. PROPOSED ORDINANCE NO. 10-028 - SECOND READING - Approve amending Article II, Chapter 18 of the Boynton Beach Code of Ordinances, entitled "Employees' Pension Plan" Attorney Cherof read Proposed Ordinance NO.1 0-028 by title only on second reading. Motion Commissioner Hay moved to approve. Commissioner Orlove seconded the motion. Mayor Rodriguez opened the issue for public comment. No one came forward and the public hearing was closed. Vote City Clerk Prainito called the roll. The vote was 5-0. B. Conduct review of West Way Towing Bid Award Protest and determine if bid protest warrants reversal of bid award. 16 Meeting Minutes Regular City Commission Boynton Beach, FL November 3, 2010 Attorney Cherof reviewed the process when a contract is awarded there is a procedure for filing a bid protest. A protest had been timely filed and it was then reviewed by the City Attorney. His recommendation had been submitted to the City Manager who investigated and made a determination by rendering an opinion. The bid protestor then filed a request to have the City Commission hear the appeal. The procedure to be followed was outlined. Henry Handler, of Weiss Handler Attorneys, 2254 Glades Road, represented West Way Towing. He requested a copy of the synopsis he had submitted be made part of the record. West Way Towing had responded to the Request for Proposal (RFP) and relocated its services and operations, including storage facilities to Boynton Beach in response to the RFP. The protest letter refers to the issue relating to Technical Proposal, Item G requiring all proposers to identify storage locations to verify the minimum standards would be met. The operative language referred to the fact that all storage locations should be in accordance with local occupational licensing and zoning requirements at the time of RFP submittal. The occupational licenses had to be submitted for each location. Attorney Hander alleged the selected vendors did not possess occupational licenses at the time of RFP submittal. West Way Towing moved its operation from Delray Beach at considerable expense and did obtain occupational licenses at the time of submittal. Greg Goldstein, owner of West Way Towing attested to his reliance on the specific language in the RFP. Attorney Handler asserted the staff had utilized the language from the City of Boca Raton proposal from November 2007. Mr. Goldstein was awarded the contract in Boca Raton under the exact same qualifications. The expenses for Mr. Goldstein to relocate his business to Boynton Beach were outlined in the affidavit submitted. The costs could not be rolled into the franchise fee putting West Way Towing at a disadvantage. Attorney Cherof's explanation indicated the intent was not meant to represent a condition of submitting a proposal, rather a condition prior to commencing tow operations once selected. There had to be intent to comply and demonstrate the ability to comply after selection and not before. Attorney Handler contended there were eight other instances in the RFP with the requirement the bidder had to be ready to perform before commencement of towing operations. He reviewed all the occurrences when the City specifically indicated a bidder's ability or demonstrate future ability to meet the requirements to perform the services, rather than at the time of RFP submittal as West Way Towing had done. There were a couple provisions, relating to licensing, that qualified action at the time of RFP submittal was required versus perspective action. Again, Attorney Handler 17 Meeting Minutes Regular City Commission Boynton Beach, FL November 3, 2010 reviewed the precise sections and language supporting his claim. Throughout the RFP licenses were requested at time of submittal and prior to award and prior to selection. West Way Towing had all the occupational licenses at the time of submission and the two selected vendors had not. West Way Towing filed a protest after having moved the business to Boynton Beach and incurring expenses, secured all the licenses and relied on the language of the RFP when submitting their proposal. The request was for a determination that the protest was well founded and the only true responsive bidder would be West Way Towing having licenses at the RFP submittal and opening. Drew Zuccala, 633 Industrial Avenue, owner of Zuccala Wrecker Service emphasized the two vendors selected had operated in the City for many years. There was no question the two vendors had the proper licenses and had towed for the City of Boynton Beach for approximately 20 years. He averred there was no merit to the protest filed. Mr. Zuccala alleged West Way Towing had received their license one day before the RFQ had been submitted. West Way Towing had also never been on rotation for towing within the City. Mr. Zuccala re-affirmed both selected vendors had all the appropriate licenses that could be verified by staff. There was a question regarding inside storage and they had been advised when the award was granted the proper paperwork on the storage could be submitted. The contract and signatures were all obtained. Mayor Rodriguez announced the protest was not a public meeting and only those individuals from Zuccala and Beck's Towing would be permitted to speak. Steve Beck, Beck's Towing, 410 NE 5th Avenue, indicated the City had not misrepresented anything in the RFP. The lease for more inside storage was prepared in anticipation of the final award with the licensing to commence immediately thereafter. It had been discussed at one of the pre-bid meetings held at the boat house. Mr. Beck asserted West Way Towing had not been awarded the contract in Boca Raton, rather Mr. Goldstein bought the contract. Most of the licensing pertained to general contractors. Mr. Beck's company had all the outside and inside storage, the licensing for indoor storage had been applied for since the award of the contract. Commissioner Orlove questioned who on City staff he had referred to as giVing information relating to the inside storage. Mr. Zucalla replied at a pre-bid conference they had asked if a lease had to be signed for the inside storage facility before the award was made. Both Mr. Zuccala and Mr. Beck had included in their package that the additional property was available, awaiting a signature after the award. Mr. Zuccala reiterated neither him nor Mr. Beck had ever not been licensed in Boynton Beach and Palm Beach County. All the proposing vendors were present during the discussions. 18 Meeting Minutes Regular City Commission Boynton Beach, FL November 3, 2010 Commissioner Holzman inquired if the conversation regarding the additional storage facility was made known to all the individuals present. Scott Blasie, Committee Review Member and Code Enforcement Administrator, indicated the discussion was part of the meeting. He added Beck and Zuccala had been licensed in the City and did not misrepresent their application, rather they submitted proof of lease agreements for the added indoor storage. He reiterated there was discussion at the pre-bid conference and the committee advised it would be addressed at the time the contract was signed. It was a mandatory meeting and the issue was discussed with everyone in attendance. It was a verbal waiver from the RFP. There was agreement. as long as there was evidence the property was available at the time the contract was signed. Lori LaVerriere, Assistant City Manager, advised the pre-bid mandatory meeting had been held two weeks after the bid had been advertised. The deadline was then extended for another three weeks for a total of five weeks. She noted it had been a productive mandatory meeting because it was a lengthy, technical document and many issues raised by the vendors had been vetted resulting in several addendums. She specifically recalled when Zuccala raised the issue on the additional inside storage, it was decided it would be determined at the time the contract was awarded in an attempt to be flexible. The intent was not to have the vendors spend large sums of money just to submit a bid. Commissioner Holzman inquired if there had been any discussion or phone calls from Westway prior to their purchasing property to submit a bid. Ms. LaVerriere replied during the drafting of the RFP she had been contacted by an employee of Westway relating to the office location. Most of the money spent by Westway was to obtain an office within the City, not buying storage. The caller was advised the process was still in draft mode. Mayor Rodriguez expressed frustration relating to the pre-bid meetings and oral understandings without any written documentation of the changes agreed upon with distribution to all parties. Mr. Bressner responded an addendum had been distributed relating to the equipment needed. The discussion relating to the storage facilities was not part of a formal addendum to the RFP. Mayor Rodriguez opined if an addendum was not distributed then the presiding document would prevail. Ms. LaVerriere stressed everyone was present in an open meeting and understood all the changes and had no questions. Commissioner Holzman inquired about the consequences of granting the protest and Attorney Cherof replied the matter would revert back to the point of making an award. He also advised the lack of having the storage facilities would remove the selected vendors from consideration. The only issue before the Commission was to determine if the protest was valid. 19 Meeting Minutes Regular City Commission Boynton Beach, FL November 3, 2010 Commissioner Hay sought confirmation the City Attorney had reviewed the process and rejected the appeal. Attorney Cherof agreed and reported he found the two companies who received the award had not misrepresented anything and they had the required licenses and submitted proof they could lease additional property. The documents provided with the leases could be enforced. Mr. Blasie added the properties were inspected also. Mayor Rodriguez asked if the requirement that the facilities be in compliance with all licensing and zoning at the time of RFP submittal was met. Mr. Blasie responded it was interpreted that the vendors could meet those requirements. Mr. Bressner interjected there could be one occupational license for the business enterprise covering five locations. Mr. Blasie opined there was compliance with the occupational licensing regulations. Commissioner Orlove asked if the RFP language was meant in a general sense rather than a specific location. Mr. Blasie viewed the issue as a general matter and they were all licensed businesses. Commissioner Orlove believed there was significant discussion in addition to the written document on the interpretation of the language of the bid. Commissioner Orlove assumed although there was not a specific addendum on the issue, the intent was to allow the lease agreement to commence upon award of the bid. The lease agreements submitted were actively in place. It was clearly understood there was potential for space to be leased and the lease signed upon awarding of the bid. Attorney Handler reiterated the provision specifically addressed storage and the meetings resulted in two addendums to address the agreed upon issues. There is a requirement for an addendum if there would be a change to the written language of the RFP. Commissioner Holzman inquired if there were other issues discussed that were not resolved with a written addendum. After two hours of lengthy discussions, Ms. LaVerriere was certain not all details that were discussed had been in the addendums. Attorney Cherof pointed out the language in the Technical Proposal, Item G, Storage Locations, includes three provisions. First, to identify storage locations that all bidders submitted and they all complied with minimum standards. The second provision referred to all storage locations being in accordance with local occupational licensing and zoning requirements. In his opinion the language requires the location must be capable of obtaining an occupational license and meet zoning regulations. The last requirement was that occupational licenses should be submitted for each location and does not dictate when the requirement must be met. An occupational license would not be needed if no business was being conducted. 20 Meeting Minutes Regular City Commission Boynton Beach, FL November 3, 2010 Motion Commissioner Holzman moved to deny the appeal. Commissioner Hay seconded the motion. Commissioner Holzman thought the protest was well taken and understood the circumstances, but based on the information supplied by staff, the two vendors had complied with the intent as well as the written proposal. Vice Mayor Ross thanked staff and trusted staff on the issue. Commissioner Hay suggested the City Attorney review the wording so the issue would not occur again. Attorney Cherof stressed lessons are learned with every protest, but cautioned reasonable interpretation by staff and the applicants should apply. The applicant could have called or written for clarification of the specifications and Westway Towing had not done so. Commissioner Orlove recommended some record be retained of the questions and answers at pre-bid meetings to avoid confusion and create a good record. The motion passed. C. PROPOSED ORDINANCE NO. 10-026 - SECOND READING - Approve Pain Management Clinics (CDRV 10-007) code review to amend the Land Development Regulations to include restrictions on the direct dispensing of certain pain medications and references to new state laws applicable to the approval and operation of pain clinics, pain management clinics and other uses that dispense pain medications. Applicant: City initiated. Attorney Cherof read Proposed Ordinance NO.1 0-026 by title only on second reading. Mayor Rodriguez opened the issue for public hearing. No one came forward. Motion Commissioner Holzman moved to approve. Commissioner Hay seconded the motion. Vote City Prainito called the roll. The vote was 5-0. PROPOSED ORDINANCE NO. 10-027 - SECOND READING - Approve Pain Management Clinics (CDRV 10-007) code review to amend the Land Development Regulations to include a definition, and operational requirements 21 Meeting Minutes Regular City Commission Boynton Beach, FL November 3, 2010 applicable to pharmacies and drug stores in connection with the warranted control over the dispensing of certain pain medications by pain clinics, pain management clinics and other uses that dispense pain medications. Applicant: City initiated. Attorney Cherof read Proposed Ordinance NO.1 0-027 by title only on second reading. Motion Commissioner Holzman moved to approve. Vice Mayor Ross seconded the motion. Mayor Rodriguez opened the issue for public hearing. No one came forward. Vote City Clerk Prainito called the roll. The vote was 5-0. Attorney Cherof remarked the passage of the ordinances would end the moratorium imposed by the Commission on the expansion or operation of pain clinics. It represented the final adoption of Land Developed Regulations association with the type of operation. He commended Mike Rumpf for his extensive efforts on a very complex issue that has not been dealt with by the State and left for municipalities to resolve. 14. FUTURE AGENDA ITEMS A. Proposed Resolution No. R 11- Approving and authorizing the execution of an Interlocal Agreement for vote processing equipment use and election services by and between the Palm Beach County Supervisor of Elections and the City of Boynton Beach - January 4, 2011. B. Police Complex -- Discussion of project timing, scope, location and funding alternatives available (TBA) C. Noise Control Ordinance - First Reading - TABLED ON July 20, 2010 and August 3, 2010 - (TBD) D. Live Entertainment Ordinance - First Reading - TABLED ON July 20,2010 and August 3, 2010 - (TBD) E. Appoint members to 7 -member independent Community Redevelopment Agency Board (TABLED ON 09/21/10 and 10/05/10) - 01/18/11 F. Consider recommendation of Advisory Committee for renaming of Jaycee Park - January 18, 2010 22 Meeting Minutes Regular City Commission Boynton Beach, FL November 3, 2010 15. ADJOURNMENT There being no further business to come before the Commission, Mayor Rodriguez properly adjourned the meeting at 9:46 p.m. (Continued on the next page) ATTEST: CITY OF BOYNTON BEACH 23 T ABLE OF CONTENTS Section Item 1. Letter of Protest 2. Craig Goldstein Affidavit 3. Excerpt from City RFP (Technical Proposal, Item G) and City Attorney Memo as to Intent 4. Excerpts from City RFP - Actions after RFP Submittal and Prior to Operations 5. Excerpts from City RFP - At RFP Submittal WEISS. HANDLER. ANGELOS & CORNWELL. P.A. CYNl1-\IA G. ANGELOS. WILLIAM ..J. BERGER WILLIAM ..J. CORNWELL"' DAVID K. FRIEDMAN HENRY B. HANDLER CAROL A. KARTAGENERO SETl-1 A. KOLTON IRAVIS R. WALKER HOWARD I. WEISS'" ATTORNEYS AT LAW ONE BOCA PLACE SUITE 2 I SA 2255 GLADES ROAD BOCA RATON. FLORIDA 3343 I -7392 . FL. VA BARS .. FL. GA BARS ..... FL. NY BARS o BOARD CERTIFIED MARITAL 0. FAMILY LAW . NY BAR. NOT ADMITTED IN FL BOCA RATON (56 I ) 997-'9995 BROWARD (954) 42 1-5 tal PALM BEACH <56 J) 734-8008 PORT ST LUCIE (772) 345-LAWS TELECOP1ER (561) 997-5280 WWW.WEISSANDHANDLER.COM E-MAIL HBH@WEISSANDHANDLERPACOM PORT ST LUCIE OFFICE 1052 I SW VILLAGE CENTER DRIVE SUITE I 0 I PORT ST LUCIE. FLORIDA 349B7 (772) 345-LAWS OF COUNSEL RAOUL LIONEL FELDER- PETER P. LINDLEY HARRY WINDERMAN KEN PRUITT. SENIOR ADVISOR GOVERNMENT RELATlONS IS. PUBLIC POLICY NOT ADMITTED TO FL BAR September 29, 2010 HAND DELIVERY Carol Doppler, Purchasing Agent Procurement Services City of Boynton Beach 100 East Boynton Beach Blvd. P.O. Box 310 Boynton Beach, FL 33425-0310 Re: Protest of Award of Contract; RFP: 055-2110-10ICJD-Towing and Storage Services Dear Ms. Doppler: Our Firm has been retained by West Way Towing, Inc. to protest the award of contract under RFP 055-2010-10ICJD (the "RFP") to Beck's Towing & Recovery, Ine ("Beck's") and Zuccala's Wrecker Service, Inc. ("Zuccala's"). The RFP required minimum capability in the City of Boynton Beach (the "City") to handle fifteen (15) vehicles in outside storage and fifteen (15)vehic1es in inside storage. Technical Proposal Item G-Storage Locations of the RFP requires each responding party to: Identify Storage Location(s) to verify mllllmum storage requirements are met. All storage locations shall be in accordance with local occupational licensing and zoning requirements at the time of RFP submittal to be considered. Occupational license shall be submitted for each location. (emphasis added) Additionally, each facility required certification of inspection and licensure by the Palm Beach County Consumer Affairs Division (the "County Division") which regulates towing in the County and each responder was required to submit proof of insurance per site. In its RFP response, Beck's identified capacity of six (6) inside spaces at 410 NE st\ Boynton Beach. To meet the minimum requirement, Beck's also listed capacity of twenty (20) inside spaces at SOS North Railroad Avenue, Bay B, Boynton Beach. However, at the time of RFP submittal, Beck's did not have a City occupational license, County Division certification and license, and insurance certificate for the North Railroad Avenue site. In its RFP response, Zuccala's identified capacity of four (4) inside spaces at 633 East Industrial Avenue, Boynton Beach. To meet the minimum requirement, Zuccala's listed capacity of twelve (12) inside spaces at 870 West Industrial Avenue, Boynton Beach. However, at the time of RFP submittal, Zuccala's did not have a City occupational license, County Division Certification and license, and insurance certificate for the West Industrial Avenue site. Of course, the City could not count the listed inside spaces identified at Zuccala's Delray Beach location because that facility is outside City limits, failed to have County Division certification and license, and was roofless at the time of RFP submittal. Both Beck's and Zuccala's misrepresented that they possess necessary storage facilities because each company listed facilities which failed to have required licenses and insurance at the time of RFP submittal. In other words, each and every site was required to satisfy City occupational and County Division requirements at the time of RFP submittal. This site specific licensure requirement was mandated by the RFP, City's occupational license law, and the Palm Beach County Towing Ordinance (Section 6[A]). By failing to meet the minimum license storage requirements and by having misrepresented material facts in their respective submissions, we request that both Beck's and Zuccala's be disqualified from consideration for an award of contract as prescribed by Part II, Section 1.0 of the RFP. Under such circumstances, the City's RFP findings and scoring of qualified responding companies require the award of contract to our client, West Way Towing. At our client's request, we are available to discuss this matter. Thank you. Very truly yours, WEISS, HANDLER, ANGELOS & CO~'"P.~. ~ ~~ - dg. ~ T HENRY B. HANDLER HBHlda cc: James A. Cherof, Esq. AFFIDAVIT OF CRAIG GOLDSTEIN IN SUPPORT OF WEST WAY TOWING PROTEST TO THE CITY OF BOYNTON BEACH CITY COMMISSION STATE OF FLORIDA ) ) ss. COUNTY OF PALM BEACH ) BEFORE ME, the undersigned, an officer duly authorized to take acknowledgments, personally appeared, CRAIG GOLDSTEIN, who being first duly sworn, deposes and says: 1. My name is Craig Goldstein. I am over the age of twenty-one, competent to execute this Affidavit and have personal knowledge of the matters set forth herein. 2. I am the president of West Way Towing, Inc., a Florida corporation ("West Way") and have served as president since its inception in 1989. 3. As president of West Way, I was primarily responsible for the completion of West Way's response (the "Response") to RFP 055-2110-1 O/CJD for Towing and Storage Services (the "RFP") for the City of Boynton Beach ("Boynton Beach"). 4. Part VII, Technical Proposal Item G of the RFP stated: Identify storage location(s) to verify the minimum storage requirements are met. All storage locations shall be in accordance with local occupational licensing and zoning requirements at time of RFP submitted to be considered. Occupational license shall be submitted for each location. 1 5. This is exactly the same language used by the City of Boca Raton in Part VII, Technical Proposal G of Boca Raton's RFP No. 2008-2007 for Towing and Storage Services in November, 2007 ("Boca Raton's RFP"). 6. I have personal knowledge of Boca Raton's 2007 RFP and Boca Raton's interpretation of the storage location requirement which was drafted by its staff. West Way was the successful proposer in response to Boca Raton's 2007 RFP and became Boca Raton's towing provider. 7. To a significant degree, Boynton Beach's RFP was taken from Boca Raton's 2007 RFP. 8. In order to comply with the original drafters' interpretation of Part VII, Technical Proposal Item G of Boca Raton's 2007 RFP, West Way obtained Boca Raton storage and submitted occupational licenses and all other necessary permits for its Boca Raton storage facilities with its response to Boca Raton's 2007 RFP. 9. In responding to exactly the same language in Boynton Beach's RFP as was utilized in Boca Raton's 2007 RFP, West Way secured necessary storage facilities in Boynton Beach and relocated its operations to Boynton Beach prior to RFP submittal in order to obtain "local occupational licensing" and other necessary permits and submitted same with its response to Boynton Beach's RFP. It was expensive to do so. 2 10. West Way incurred the following expenses with relocating its storage and attendant operations to Boynton Beach prior to RFP submitted (the "Expenses"): Expense Amount 1. Rent $5,000 2. Bobcat service and rock for yard $5,500 3. Building renovation, equipment $7,750 removal and code compliance work 4. Fencing and buffering $2,350 5. Security cameras $4,500 6. Signage $2,000 7. Computers and equipment relocation $2.541.02 TOTAL $29,641.02 11. In responding to the RFP, I was misled by the language used in Technical Proposal Item G which Boynton Beach's City Attorney interprets to be "a condition precedent to commencing tow operations" and only to show an "ability to comply with the RFP storage requirements... at time of operation". This constitutes a material irregularity since the Boynton Beach RFP uses substantially different language numerous times to express the City Attorney's interpretation. 12. Having incurred the Expenses to comply with Technical Proposal Item G, West Way was unable to offer a greater franchise fee to Boynton Beach in response to the RFP. Had West Way ignored the clear language of Technical Proposal Item G, it would have increased its proposed franchise fee by the amount of the Expenses. 3 Consequently, West Way would have proposed a larger franphise fee than the two selected companies, Beck's and Zuccala. 13. Clearly. the two selected companies. Beck's and ZUccala, did not incur pre-RFP submittal costs similar to West Way's Expenses, resulting in an economic advantage to .one set of responders over West Way. 14. West Way strictly complied with Technical Proposal Item G of the RFP while the two selected companies did not. STATE OF FLORIDA COUNTY OF PALM BEACH The foregoing was acknowledged before me this ).~day of November 2010. by who is personally known to me or who has produced Florida r Drivers License as identification ~ ~~~ Notary Signature ~'.. .em B. HNIX.EJ\ !..r- j ~~ MY COMMISSDU DO 719427 : ~ . EXPIRES: Januery28, 2012 .. . Bandldlltu NalIIy NlIillblnllla . l-Ienrl~' "....-It.r Notary N e TypedlPrinted S:\gen1\Hiw\GoIdstein. Cralg'AFFlDAVIT OF CRAIG GOlDSTBN 102910.doc 4 Xi:~ ..-.-.. .......,,,,-.,...._.,.,,.,,,.. -..,., ."~~,,, . '....,..,'~.~-,.., -.-'~~. "-'''... -\'''''~~'''~-'''-~ r:;~:~,,:,~!i.i':~~~S.:-E :::;~:.::,\"t;:-.~:'.'r:~:,~~.': ..........-.---..- ......, ...._~.....,..',.# .~, . ...~*_. ~~~~~~~~ ........'''.......'_ "a.....__..__ -'-"--'~."----"- TECHNICAL PROPOSAL ITEM G - STORAGE LOCATION(S) Identify Storage location(s) to verify the minimum storage requirements are met. All storage locations shall be in accordance with local occupational licensing and zoning requirements at time of RFP submittal to be considered. Occupational license shall be submitted for each location. ,.. Staff members who participated in the drafting of the RFP documents advise that the language set forth above was not intended to represent a condition of submitting a proposal, but rather to indicate a condition precedent to commencing tow operations once the successful Proposers were selected. ... Staff investigation, prior to ranking if proposals, was sufficient to determine actual intent and ability to comply with the RFP Storage requirements. The storage space required by the RFP represents a substantial monetary investment on the part of the proposers. It is the ability to have the space available at time of operation that was of importance to the RFP drafters and the ranking committee. 6.0 Insurance SUBCONTRACTOR'S INSURANCE ... Each subcontractor shall furnish to the successful Contractor two copies of the Certificate of Insurance, and succcssful Contractor shall furnish one copy of the Certificate to the City of Boynton Beach. SUPPLEMENTAL PROVISIONS 2. Certificates of Insurance meeting the specific required provision specified within this Contract Agreement shall be forwarded to the City of Boynton Beach Risk Management Department, and approved prior to the start of any work or the possession of any city property. INSURANCE ADVISORY FORM ... (NOTE: An insurance contract or binder may be accepted as proof of insurance if Certificate is provided upon selection of vendor.) TECHNICAL PROPOSAL ITEM C - EQUIPMENT Identify Equipment to verify the minimum equipment requirements are met and any additional equipmcnt that is available in excess of the minimum requirements. TECHNICAL PROPOSAL ITEM F - TECHNICAL APPROACH [STA}'F] Describe your ability to have available staff 24/7 to adhere to the requirements of the contract or if you will need to hire additional staff in the event that you are awarded the contract. INSURANCE: ... The Proposer shan provide to the Risk Mgmt. Dept. original certificates of current coverage meeting all such requirements and specifications prior to engaging in any activities under this contract. CONTRACTOR REGISTRATION: If applicable, the Contractor must first register with the Department of State of the State of Florida, in accordance with Florida State Statutes, prior to entering into a contract with the City. U' ,><'1,onWI'I\!. \If''..... ........- ,.ol >,~",,",' .~.,..... ., T.... :~.;.:'~.:....::~'j;,.n;.... .t4t",..."...d<(..""..,..~ 101 ~~~:~~"::.':~:-.~',~....~~_::;~~::~: :.::~~=~r=,::.::."".:'..;~: ~...:=.::::-..::..~~,...~::~~t':=~t:::~ :~':..":i,t.~":.7'..;~;~~'''''''''' '<#\l ,.. ".t>Uct;t.'I__~..._j...""......",......II."I"J:o._ ,~~~::.'~:':'':'~~,Z'~~~;' :v.:".'?f,,'::~;.:';:~2~. ,~,oOoJ'''1o<.."I.. ..1"4......" PART VIII RFP NO. 055-2110-10/CJD GENERAL CONDITIONS 1.04 OCCUPATIONAL LICENSE: ... A copy of the license or proof of exemption shall be submitted prior to awarding the RFP. CONTRACTOR LICENSE: The Proposer Name identified ... shall be fully licensed, ... at time of RFP opening for type of work to be performed in order for their RFP to be considered. County or locally licensed contractors must be registered with the State of Florida DBPR Construction Industry Licensing Board at time of RFP opening. Copies of all applicable certificates, registrations and licenses must be submitted with the RFP and must be in the name of the Proposer shown on the Signature of Proposer Form.