HomeMy Public PortalAbout09- September 25, 2013 Special Meeting Minutes CITY OF OPA-LOCKA
"The Great City"
CLERK'S ACTION SUMMARY MINUTES
SPECIAL COMMISSION MEETING
September 25,2013
4:00 P.M.
Opa-locka Municipal Complex
780 Fisherman Street, 2"d Floor
Opa-locka, FL 33054
1. ROLL CALL:
Mayor Myra L. Taylor called the meeting to order at 4:10 p.m. on Wednesday,
September 25, 2013 on the 2nd Floor of the Opa-locka Municipal Complex, 780
Fisherman Street, Opa-locka, Florida.
The following members of the City Commission were present: Commissioner Dorothy
Johnson, Commissioner Timothy Holmes and Mayor Myra L. Taylor. Also in attendance
were: City Manager Kelvin L. Baker, Sr., City Attorney Joseph S. Geller and City Clerk
Joanna Flores. Commissioner Luis B. Santiago joined the meeting at 4:11 p.m.
2. INVOCATION:
The Invocation was delivered by Mayor Myra L. Taylor.
3. PLEDGE OF ALLEGIANCE:
The Pledge of Allegiance was recited in unison.
4. PUBLIC HEARING:
a) A HEARING ON THE PROTEST TO THE AWARD OF CONTRACT FOR
RFP NO. 13-2805200 CITYWIDE SOLID WASTE COLLECTION AND DISPOSAL
SERVICES FILED BY PROGRESSIVE WASTE SOLUTIONS OF FLORIDA.
The above hearing was read by title by City Attorney Geller. He stated that in front of the
Commission is a resolution for consideration at the conclusion of the protest.
5. RESOLUTION:
a) A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF OPA-
LOCKA, FLORIDA, PURSUANT TO THE HEARING ON THE PROTEST TO THE
AWARD OF CONTRACT FOR RFP 13-2805200 FOR CITYWIDE SOLID WASTE
COLLECTION AND DISPOSAL SERVICES FILED BY PROGRESSIVE WASTE
SOLUTIONS OF FLORIDA; PROVIDING FOR INCORPORATION OF RECITALS;
PROVIDING FOR AN EFFECTIVE DATE.
Special Commission Meeting Minutes—09/25/2013 1
The above resolution was read by title by City Attorney Geller. He stated the commission
will grant or deny the protest.
Commissioner Johnson said she is not sure of the format but several letters of concern
were received. She would prefer to hear all parties, although only one party is listed.
There is Waste Management and Great Waste and Recycling Services. She asked why
only one party is listed.
Attorney Geller said only one party filed a protest within the time allotted for a protest.
However by calling it as a Public Hearing, the intent was that every proposer, successful
or unsuccessful, would be given the opportunity to be heard. The public is also allowed to
comment. The intent is to hear from everybody. Obviously, the party who filed the
formal protest goes first. There is a preliminary matter that was raised by the
recommended awardee that may need to be considered.
Commissioner Johnson said she wanted it on the record because it states in the Charter
that a public hearing can be open to everyone.
Attorney Geller wanted to ask who intends to be heard or to speak today so the time can
be allotted fairly.
Commissioner Johnson said for the record the parties should sign in with the City Clerk
and the time will be allocated in accordance with proper protocol and regulations.
Attorney Geller said the party who filed the formal protest would be given 20 minutes to
make their presentation. Thereafter, to allow at least 10 or 15 minutes to the
successful/recommended awardee, and then after that to allow 5 minutes for anyone else
who wants to be heard. At the conclusion of that, the commission can ask any questions
that it has and then close the Public Hearing and have commission deliberations.
Commissioner Johnson said she considers the time allotted by the City Attorney to be
unfair to everyone. The time for all parties should be consistent since anyone speaking
today will be doing so on behalf of their company. She does not know of any rules that
allow different time allotments.
Commissioner Santiago said he agrees with Commissioner Johnson. He wants to know
how many vendors will speak today.
Mayor Taylor confirmed with Clerk Flores that there are 4 speakers.
Commissioner Santiago said he thinks 10 minutes for each speaker is enough time.
Mayor Taylor said she is going to let the speaker from Progressive Waste Solutions go
first since that company filed the formal protest and he will get a little extra time. There is
only an hour and that should be kept in mind.
Attorney Geller said there was a motion to dismiss that was filed by the attorney for the
recommended awardee which is Ecological Waste Service. Whether that should be heard
Special Commission Meeting Minutes—09/25/2013 2
separately first or whether the argument on that motion should be included during his
portion, as he is not the first speaker, needs to be decided.
Mayor Taylor said he can do his portion of the argument.
Commissioner Santiago suggested the same amount of time for each speaker without
preference.
Mayor Taylor said there is a preference due to the formal filing of a protest with the City
Clerk. All other parties are an add-on.
Commissioner Johnson said if she recalls correctly, prior to now, the commission has
correspondence from all the vendors in attendance. It was clocked in. She asked Clerk
Flores if notices were received from at least 2 or 3 vendors at the meeting today.
Clerk Flores said there are letters that are included in the package and all of those are
clocked in.
Commissioner Johnson said they are clocked in. The vendors are always notified that
they have protest interests. She thinks it needs to be fair across the board and give
everybody 10 minutes to build their business case and go forward.
Mayor Taylor said she will go with the suggestion, but she does not see it that way.
Progressive Waste Solutions went through the process within the allotted amount of time.
Each speaker will get 10 minutes.
Mayor Taylor opened Public Hearing on item 4(a). She said the order of speakers will be
Progressive Waste Solutions, Great Waste and Recycling, Waste Management and
Ecological Waste Service.
Grant Smith, representing Progressive Waste Solutions, 2860 State Road 84, Ft.
Lauderdale, Florida came forward and stated that he was prepared to present for the
amount of time originally allotted by the City Attorney. He is representing Progressive
Waste Solutions on the bid protest. The question becomes when is it enough and how
many times has to be given to get an opportunity to say that the recommended company
should have been disqualified as non-responsive and non-responsible. Clerk Flores was
given a package and the commission has a notebook and he will be referring to
documents in the notebook for his presentation. The first three pages of the notebook are
his public records requests. He made a significant public records request and the City
Clerk's office responded in a timely manner to everything. A few things were there,
many things were not. What is not there is very important and he will address that.
Behind Tab 1, is the scoring comparison of the 2 companies at the second meeting, which
is more important for this purpose. The scores were very close, Progressive Waste
Solutions got zero (0) points for references and that at the bottom it shows 322 points to
315 points for a 7 point difference; which make the zero (0) points for references very
important. The next page is really just to illustrate that between the first and second
meeting, even with the city administration admonition to the committee to not pay any
regard to the previous rankings; as indicated on his chart - 88% of the scores were
identical. He finds that statistically impossible given that they are 47 days apart. Without
Special Commission Meeting Minutes—09/25/2013 3
notes that would have been almost impossible to get them as identical and this is
illustrated in his charts. Tab 2 is important and the instructions to the evaluation
committee were to evaluate and rate the proposals on the criteria published in the RFP.
That means they were to read the instruction in the RFP which they were given and rate
the companies on that criteria. His Associate Carlos is putting them up for view. On the
°d
2 page of Tab 2, 55 points for Price, 15 points for Customer Service and so on. On
Pricing, there is no discretion given because the City Budget Director did an evaluation
and provided those points; that is behind Tab 3. In Tab 3, Progressive Waste Solutions
was essentially what looks to be tied at the end of the points, but what is interesting is
methodology. If there is a method, it needs to be carried through the entire thing; methods
cannot be changed in the middle. Up above there are decimal points in the numbers and
down below there are decimal points where the total is, 239 to 239.3, but the point totals
are equal because somebody decided to round down. It makes no sense, the highest
number of points here won and yet it is not reflected in the scoring. Because the scoring
was so close, every point mattered. The next page illustrates the point he made at the
Budget Hearing a few days ago. The city is currently getting $492,000.00 a year in
Franchise Fees from Waste Management under their current pricing structure. Under their
go forward pricing structure it stayed the same, but Ecological Waste Service was less
and Progressive Waste Solutions was in between the two. The estimated loss in Franchise
Fees by choosing Ecological Waste Service is $214,000.00. With Progressive Waste
Solutions it is a $100,000.00 loss but it is $114,000.00 better. This is important because
this is an RFP, which is a proposal and not a bid. The city is allowed to evaluate the
totality of the circumstances and the impact on the city. This is not a bid where the city
has to take the best price. The evaluation considers who is most qualified, who provided
the best information and what impact it has on the city. This company has the better
pricing as Waste Management did not protest, and betters the city's budget. On the next
page is the residential pricing; the only difference between the two companies is
$10,000.00, which is made up with not only the difference in the Franchise Fee for the
commercial waste but also in the next page which the committee failed to evaluate.
Progressive Waste Solutions owns the carts that are in everyone's homes right now.
Progressive Waste Solutions offered to donate the carts to the city. The city has in its
budget, he believes, $150,000.00 to buy new carts. It appears the committee did not look
at the entirety of the budget impact of the bid. That $150,000.00 should have been
factored in. In any audio, transcripts or evaluations, none of it was evaluated. These were
arbitrary and capricious decisions by the committee. In Tab 4, Ecological Waste Service
as a company has no experience in single family residential garbage pick-up. They have
none or they would have put it in their bid. Each and every one of these contracts on this
page had no verification from what he can tell, of what they claim to be as experience.
This is important because they got higher points on their point evaluation than
Progressive Waste Solutions. How can this happen with no single family home
experience as a company, and use Progressive Waste Solutions references and contracts.
Progressive Waste Solutions is a $300 million dollar company in the state of Florida
alone. Progressive Waste Solutions has hundreds of thousands of single family residential
customers yet Ecological Waste Service scored higher. Progressive Waste Solutions is
the incumbent hauler; it makes no sense. An independent judge of these facts would find
it arbitrary and capricious, and that is the legal standard and what the City Attorney
should tell the city it has to live by. The City of Sebring is a myth. It hauls its own
garbage with city employees in city trucks. He does not know how somebody could put
that on the list, a city that does its own garbage and their own hauling and take it as their
Special Commission Meeting Minutes—09/25/2013 4
credit, but Opa-locka city staff did not verify that it was not a real contract. Opa-locka
does not have a city code on misrepresentation but the County does, and it says a vendor
may not get a contract by misrepresentation, and if they do, they are subject to the
cancellation of that contract and are subject to disbarment, and that means they can't do
business with the entity anymore. This is a material misrepresentation. Tab 5 contains
actual pages from Progressive Waste Solutions' bid which shows company size, scope,
the amount of trucks and the amount of customers. More importantly, on page 3
contained in Tab 5 is every single government and residential contract Progressive Waste
Solutions has. There are 4 pages of them. There a dozens of contracts that show
Progressive Waste Solutions is qualified yet Ecological Waste Service was ranked higher
using Progressive Waste Solutions experience.
Clerk Flores told Mr. Smith that the 10 minute allotment had been met.
Mr. Smith asked if he could make a conclusion. He needs the commission to refer to Tab
12 which is very important. This company did not sign their bid bond, and it is a material
piece of information in a bid. It creates security for the city. Progressive Waste Solutions
does not know if they intentionally omitted signing it. If the city chose to go to contract
with this company, and they decided at the table not to do it for that price, terms or
transition period, there is no security against the bid bond. Because if this bid bond was
presented to the bid company, they would immediately tell the city that the customer did
not accept this bond. The bottom line is that this company should have been disqualified
for making material misrepresentations. They should have been deemed non-responsive
for not giving the city the bid bond properly executed. They should have been deemed
non-responsible because they cannot support getting this work. The city would represent
40% of their revenue and that is scary number. It is an illogical end to this.
Mayor Taylor thanked Mr. Smith and said Waste Management is next.
Mr. Smith addressed Mayor Taylor and said that one thing not talked about was zero (0)
points for references. He put in every one of them in six pages. The committee should not
have given zero points. There is no evidence that they checked any of them because he
asked for them in public records requests and he did not get any. They are in Tab 8 or 9.
That would have made a difference in the ranking.
Alex Gonzalez, 2125 West 10th Court, Miami Florida came forward and said that Waste
Management decided not file a protest because they do not have a horse in this race. He is
not here defending Waste Management or any other company. He would like to let the
city know the city did not have a fair or transparent process. Some in the city got upset
when it was pointed out that there was an issue with the Sunshine Law and there was. If
the city had gone through and awarded the contract with an issue in the Sunshine Law, it
would have been a big headache for the city. He is here to advise the city to do the right
thing and the city knows what it is. If there is a process that the city does not feel
comfortable with, start over or do something else. This may be the last time he comes
before the city, the city has been great to him and he has been good to the city. The city
should do the right thing.
Carlo Piccinonna of Great Waste and Recycling, Opa-locka, Florida came forward and
said he does not have a long presentation. He has sent the city material including
Special Commission Meeting Minutes—09/25/2013 5
spreadsheets and has said that his proposal offers the city the best value. When looking at
the Commercial alone, as Mr. Smith previously pointed out, it is going to cost the city
over $200,000.00 to go with Ecological Waste Service. It is going to cost the city
$100,000.00 more to go with Progressive Waste Solutions. If the city goes over the
proposal and reads the material he submitted, the city would find it would lose nothing to
go with Great Waste and Recycling and the businesses will experience a 15% decrease in
what they are paying now. Commissioner Holmes mentioned unofficially something
about splitting the contract. Progressive Waste Solutions is a little bit lower than Great
Waste and Recycling on face, but if the math was done even in the residential, Great
Waste and Recycling is lower. Ecological Waste Service is lower on residential, but if
this is awarded commercial to either of the other companies it will be detrimental to the
city. If the proposal is read and the numbers looked at, there is no decrease in Franchise
Fees that the city is presently collecting.
David Reiner, 9055 SW 73rd Court, Miami, Florida came forward representing Ecological
Waste Service and said the reason for coming today was to request that a motion is made
to dismiss the appeal or the bid protest. There is no mechanism for a bid protest under
Opa-locka code and there is no mechanism in the RFP as well. If this was characterized
as an appeal; than it would have to come under City Code Section 2.66, which talks about
an administrative decision, which isn't what is being complained about. This is a
recommendation from the City Manager; that is it. The whole idea that we are here to
hear a bid protest or appeal a question that has already been answered; there is no legal
way to do that. It is simply an illegal bid protest. There is not a mechanism to do it. He
can go through point by point addressing Progressive Waste Solutions but he does not
want to go through that again, it has already been done. Ecological Waste Service
representatives are present and can answer any questions the commission may have. The
reality is, as a gateway issue, as a threshold issue, he would ask Attorney Geller to advise
the commission that there is no mechanism for a bid protest or appeal. This is simply
illegal.
Mayor Taylor said the city has legal representation present and the commission is not
winging this. There is a process the city goes by. This is not the first bid for solid waste.
The city depends very heavily on its legal counsel, City Attorney Geller. He will respond.
Attorney Geller said first, as to the motion to dismiss, since Mr. Reiner has made the
motion it is appropriate to allow Mr. Smith a few minutes to respond to the motion. If the
commission chooses not to grant the motion to dismiss, it would also be appropriate to
give Mr. Reiner the remainder of his time to finish the presentation if he chooses to add
anything.
Mr. Smith said there is absolutely nothing in the city code about motions to dismiss. That
is a legal term and if there is nothing in the code about protest, there is certainly nothing
in the code about motions to dismiss. Most importantly, Section 2.66 as Attorney Geller
could tell the commission says you can appeal an administrative decision of the city, but
the appeal is to the commission. These are the important words in that section because if
the City Manager makes a recommendation and the commission acts on it, based on Mr.
Reiner's philosophy, he could appeal a decision of the commission to the commission.
That does not make any sense. The commission decision cannot be considered an
administrative decision, it is a legislative decision. Manager Baker's decision is the
Special Commission Meeting Minutes—09/25/2013 6
decision which is an administrative decision made by the administration, and the
commission is the appellate body of that. Therefore if the commission were to hear it and
rule and the appeal would be to the commission and that can't be what the code means.
Commissioner Santiago said to Attorney Geller that Mr. Smith said something he did not
like. The commission is not a judge. If the City Manager comes with a recommendation
that is what should be decided. This has gone too far.
Commissioner Holmes asked Attorney Geller if the hearing today was legal or not.
Attorney Geller said yes, the meeting is legal. He further said before the Public Hearing
is closed, a motion to dismiss was raised. The commission should make some
determination on that before going forward. Without speaking to the substance of the
motion to dismiss, because that is ultimately the commission's decision, procedurally he
would suggest that if the city were to decide this by granting a motion to dismiss that in
itself is subject to review if someone takes that to the courts. If someone is going to take
this to the court, he would prefer from the city's point of view to have some kind of clear
decision. He would urge that instead of separately granting the motion to dismiss and
terminating the process right now, to consider the arguments Mr. Reiner made in his
motion to dismiss on the commission's ultimate decision. If Mr. Reiner's argument is
persuasive that would be a reason to vote to deny the protest. If the commission is not
persuaded by anything else; then the commission can vote to grant the protest. Instead of
having this decided just on a motion to dismiss he would prefer to go through the whole
process, allow Mr. Reiner to conclude his presentation if he cares to on the substance.
That is why he said not to close the public hearing and rather than grant the motion to
dismiss, if the commission is inclined to grant the motion to dismiss, the commission
should make that a reason to vote to deny the protest.
Commissioner Johnson said she would like Mr. Reiner and whoever else to make their
conclusion.
Mr. Reiner said that Ecological Waste Service sent in two letters addressing every point
Mr. Smith raised. The issues he raised simply do not have any merit. Ecological Waste
Service and the commission has gone through this process since July, there have been
two approvals in committee meetings, there has been approval by City Manager, there
has been First Reading, he is asking for the commission to end the process and sign the
contract.
Mayor Taylor said the commission has heard from Mr. Reiner and he has concluded.
Mr. Smith said he understands Commissioner Santiago's concern. He was not saying this
is an illegal meeting, he was saying this was not a court where there are rules for a
motion to dismiss. He is saying per City Code there is no motion to dismiss.
With no further discussion, Mayor Taylor closed Public Hearing.
Commissioner Johnson said she is not in favor of dismissing. Her motion is not to
dismiss the protest.
Special Commission Meeting Minutes—09/25/2013 7
Attorney Geller asked to clarify that she meant to deny the motion to dismiss.
Commissioner Johnson affirmed.
Attorney Geller said that is certainly appropriate. He wanted to point out to the
commission with the motion itself, the commission is not required to act on the motion to
dismiss. He wants that clear for the record.
Commissioner Johnson said verbatim "I know but I can almost foresee this going further,
so I would prefer it to be verbatim on the record. And Madam Mayor I need a second
because we heard this in the public and I think that even if you did not address the
protest, under our ordinance and our Charter it could then be listed as a public hearing.
So either way we would have had an opportunity to hear it and I want to make sure it is
on the record. "
It was moved by Commissioner Johnson, seconded by Commissioner Holmes to deny the
motion to dismiss.
There being no further discussion, the motion failed by a 2-2 vote.
Vice Mayor Kelley Not present
Commissioner Johnson Yes
Commissioner Holmes Yes
Commissioner Santiago No
Mayor Taylor No
Commissioner Johnson said if it does not pass or fail it continues on.
Attorney Geller affirmed.
Attorney Geller said in front of the commission is a resolution which says the
commission has heard the protest. Someone has to put it in form that it is either granted
or denied. The commission cannot go forward as there is a blank, there needs to be a
motion to either grant the protest or deny the protest. Upon being seconded, the
commission can move forward with discussion. Progressive Waste Solutions has filed a
protest. They are basically asking that the commission overturn the City Manager's
recommendation. The commission can either say yes to that, which would be to grant the
protest, or the commission can say no to it, which would be to deny the protest.
Commissioner Johnson said she is not going with the City Manager's recommendation.
She wants to hear all the facts. She would like to deny it. The protest from the legislation
is for the commission to go by what the City Manager is recommending. She asked if that
was correct.
Attorney Geller said Progressive Waste Solutions protest is asking that the commission
overturn the City Manager's recommendation.
Commissioner Johnson said she agrees to hear the protest as it was presented.
Special Commission Meeting Minutes—09/25/2013 8
Attorney Geller said the commission heard the protest. Now, the commission needs to
decide whether to agree or disagree with the protest.
Commissioner Johnson said she has her own facts. She doesn't need to agree with
anybody, she has reviewed the package enough times.
Commissioner Santiago wants to be clear. The commission is here to grant or deny the
protest. He does not understand Commissioner Johnson's reason.
Commissioner Johnson said the City Manager and the evaluation committee has done its
part. Her findings are different than the recommendation. She wants on the record that
she has met with the committee separate from any commissioner, she has met with two of
the vendors separate from any commissioner and she has an intelligent decision to make
on what she has seen presented in the package. So, whether there is a protest or not; it
doesn't make a difference to her. She has listened to all three sides.
Commissioner Santiago asked why the commission has to be involved when the
committee and the Manager have made a recommendation.
Commissioner Johnson said committees, staff or anyone else gives the commission
information. The commission can do discovery and inquiry on any of it. The law says if
at least two or more of the commission are not in a deciding position, as long as she does
not sway in the decision, the Florida statute gives her the right to do further discovery
which she has done.
Commissioner Santiago said he would move the resolution to dismiss to deny and
continue with the process.
Commissioner Homes said he hopes there in no confusion regarding to grant or deny the
protest. If there is resolution it needs to be put on the table and deny or grant the protest.
Commissioner Johnson said that is what she is trying to do. The commission has already
heard the protest. She asked Attorney Geller if that was correct.
Attorney Geller said that is correct.
Commissioner Johnson said that was part of the Public Hearing. She has never seen
where the commission has to accept anyone's recommendation and that is why the
commission is going through the process. She is still saying not to dismiss because the
commission already heard the protest.
Attorney Geller said the motion to dismiss was not adopted. The commission is past the
motion to dismiss. Progressive Waste Solutions brought a protest before the commission.
It has not been dismissed. The commission has heard the protest and at this point it is
appropriate for the commission to vote to grant the protest or deny the protest.
Commissioner Johnson made a motion to grant the protest, seconded by Commissioner
Holmes.
Special Commission Meeting Minutes—09/25/2013 9
Mayor Taylor asked Attorney Geller if the protest is granted, that means the City
Manager's recommendation would be overturned.
Attorney Geller said that is correct. The commission would have to return to some stage
in the process, using the selection committee or some such.
There being no further discussion, the motion failed by a 2-2 vote.
Vice Mayor Kelley Not present
Commissioner Johnson Yes
Commissioner Holmes Yes
Commissioner Santiago No
Mayor Taylor No
Attorney Geller stated that the motion to grant the protest failed on a tie vote. The
Commission must go with what is on the agenda which is only this item.
Mayor Taylor asked Attorney Geller what that means in plain language.
Attorney Geller said it means the protest was not granted.
5. ADJOURNMENT:
There being no further business to come before the Commission, it was moved by
Commissioner Holmes, seconded by Commissioner Santiago to adjourn the meeting at
5:01 p.m.
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ATTEST:
CITY CLERK
Special Commission Meeting Minutes—09/25/2013 10