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09- 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. r M, ,,OR ATTEST: CITY CLERK Special Commission Meeting Minutes—09/25/2013 10