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HomeMy WebLinkAbout11-26-2019 ES AgendaCn Lf SETA HOME OF PELICAN ISLAND SEBASTIAN CITY COUNCIL AGENDA SPECIAL MEETING FOR THE PURPOSE OF CONVENING ATTORNEY-CLIENT SESSION NOVEMBER 26, 2019 — 5:01 PM CITY COUNCIL CHAMBERS 1225 MAIN STREET, SEBASTIAN, FLORIDA CALL PUBLIC MEETING TO ORDER 2. ROLL CALL 3. RECESS TO CONVENE ATTORNEY-CLIENT SESSION: In accordance with FS286.011(8) request was made by City Attorney James D. Stokes at the November 20, 2019 regular City Council meeting to hold an Attorney -Client session to discuss pending litigation in regard to the case: A. Pelican Island Audubon Societv, Graham Cox, and Donna Halleran v. Citv of Sebastian The session will be held in the City Hall 2nd floor Conference Room. ESTIMATED LENGTH OF SESSION: 1 112 Hours NAMES OF PERSONS ATTENDING: Mayor Ed Dodd, Vice Mayor Charles Mauti, Council Member Damien Gilliams, Council Member Jim Hill, Council Member Pamela Parris, City Attorney James D. Stokes, Special Counsel Daniel L. Abbott of Weiss Serota Helfman Cole & Bierman, P.L., City Manager Paul E. Carlisle and a Certified Court Reporter 4. ADDITIONAL ATTORNEY-CLIENT SESSION: In accordance with FS286.011(8) request was made by City Attorney James D. Stokes at the November 20, 2019 regular City Council meeting to hold an Attorney -Client session to discuss pending litigation in regard to the case: A. Sembler & Sembler, Inc. v. Citv of Sebastian The session will be held in the City Hall 2nd floor Conference Room. ESTIMATED LENGTH OF SESSION: 112 Hour NAMES OF PERSONS ATTENDING: Mayor Ed Dodd, Vice Mayor Charles Mauti, Council Member Damien Gilliams, Council Member Jim Hill, Council Member Pamela Parris, City Attorney James D. Stokes, City Manager Paul E. Carlisle and a Certified Court Reporter 1 of 14 5. REOPENING OF PUBLIC MEETING TO ANNOUNCE TERMINATION OF ATTORNEY- CLIENT SESSION pgs 3-14 6. CITY ATTORNEY ORIENTATION 7. ADJOURNMENT OF PUBLIC MEETING HEARING ASSISTANCE HEADPHONES ARE AVAILABLE IN THE COUNCIL CHAMBERS FOR ALL GOVERNMENT MEETINGS. All City Council Meetings are Aired Live on Comcast Channel 25.* ANY PERSON WHO DECIDES TO APPEAL ANY DECISION MADE WITH RESPECT TO ANY MATTER CONSIDERED AT THIS MEETING WILL NEED A RECORD OF THE PROCEEDINGS AND MAY NEED TO ENSURE THAT A VERBATIM RECORD OF THE PROCEEDINGS IS MADE, WHICH RECORD INCLUDES THE TESTIMONY AND EVIDENCE UPON WHICH THE APPEAL IS TO BE HEARD. (F. 5.286.0105)* IN COMPLIANCE WITH THE AMERICAN WITH DISABILITIES ACT (ADA), ANYONE WHO NEEDS A SPECIAL ACCOMMODATION FOR THIS MEETING SHOULD CONTACT THE CITY'S ADA COORDINATOR A T 589-5330 AT LEAST 48 HOURS IN ADVANCE OF THIS MEETING. *The Attorney -Client Session Portion of this meeting is not open to the public under FS 286.011(8) and only those listed as attendees may participate. The transcript of the Attorney -Client Session by the Certified Court Reporter will remain sealed until litigation is concluded. 2 2of14 EXCERPTS OF FLORIDA STATUTE and CITY CHARTER 166.041 Procedures for adoption of ordinances and resolutions.— (1) As used in this section, the following words and terms shall have the following meanings unless some other meaning is plainly indicated: (a) "Ordinance" means an official legislative action of a governing body, which action is a regulation of a general and permanent nature and enforceable as a local law. (b) "Resolution" means an expression of a governing body concerning matters of administration, an expression of a temporary character, or a provision for the disposition of a particular item of the administrative business of the governing body. (2) Each ordinance or resolution shall be introduced in writing and shall embrace but one subject and matters properly connected therewith. The subject shall be clearly stated in the title. No ordinance shall be revised or amended by reference to its title only. Ordinances to revise or amend shall set out in full the revised or amended act or section or subsection or paragraph of a section or subsection. (3)(a) Except as provided in paragraph (c), a proposed ordinance may be read by title, or in full, on at least 2 separate days and shall, at least 10 days prior to adoption, be noticed once in a newspaper of general circulation in the municipality. The notice of proposed enactment shall state the date, time, and place of the meeting; the title or titles of proposed ordinances; and the place or places within the municipality where such proposed ordinances may be inspected by the public. The notice shall also advise that interested parties may appear at the meeting and be heard with respect to the proposed ordinance. CHARTER Sec. 2.06. - Mayor; Vice -Mayor. (a) Mayor—Selection and term. After the seating of any newly elected council members at the city council meeting held pursuant to Section 2.04 the new city council shall, as the first order of business, elect a mayor from among its members. The incumbent mayor or in his or her absence, the vice -mayor or in his or her absence, the 3 of 14 senior member of city council, shall ask for nominations for mayor. After all nominations have been made, the nominations shall be closed. The city clerk shall then call the roll of the council members and each council member shall cast an affirmative vote for the council member of their choice. The council member that receives a majority vote shall be elected mayor. In the event no council member receives a majority of the votes cast on the first ballot, balloting with sequential roll calls shall continue until a council member receives a majority vote. Council members shall not nominate themselves. Only elected council members shall be eligible for the office of mayor. (1) If there is no mayor seated on the new or existing city council, a temporary city council chairperson may be elected from the incumbent members of the city council for the purpose of electing a mayor as set forth above. (2) In the event there is only one nomination and second for mayor, the nominee shall be seated as mayor. (b) Mayor—Duties, general. The mayor shall preside at each meeting of the city council, shall have a vote upon matters before the city council, but shall not possess a veto power. The mayor shall have the power to preserve the peace and order, be recognized as the head of the city government for all ceremonial purposes, and shall be recognized by the governor as the head of the city government for purposes of military law. The mayor shall sign all ordinances, resolutions and proclamations of the city council or other documents as required by law on behalf of the city as directed and authorized by the city council, which shall also be attested by the city clerk. (c) Vice-mayor—Selection and term. Immediately subsequent to the selection of a mayor, the city council shall elect a vice -mayor from among its members. The term of the vice -mayor shall be for one year or until his or her successor is elected. The vice - mayor shall be elected using the same procedure as for the election of mayor. (d) Vice-mayor—Duties, general. In the absence or disability of the mayor, the vice -mayor shall serve as mayor during such absence or disability. In the absence or disability of both the mayor and vice -mayor, the senior member of city council shall serve as mayor during such absence or disability. (e) Vacancies. In the event the office of mayor shall become vacant during the course of a term, the vice -mayor shall succeed to the office of mayor. In the event the office of vice -mayor shall become vacant during the course of a term, a new vice -mayor shall be chosen as the first order of business at the next council meeting. Sec. 2.07. - General powers and duties. All powers of the city shall be vested in the city council, except as otherwise provided by law or this Charter, and the city council shall provide for the exercise thereof and for the performance of all duties and obligations imposed on the city by law. 4of14 Sec. 2.10. - City Council -- employee relationship. Neither the city council nor any of its members shall in any manner dictate the appointment or removal of any city employee except the charter officers nor shall the city council or any of its members give orders to any employee, other than city council orders to a charter officer. The city council or its members shall implement all policy matters through the appropriate charter officer. Sec. 3.01. - Creation. The city manager, city clerk and city attorney are designated Charter officers. Sec. 3.02. - Appointment of Charter Officers. The Charter officers shall be appointed by the city council and serve at the pleasure of the city council subject to the provisions of section 3.03 of this article. Sec. 3.03. - Removal of Charter officers. (a) Any Charter officer may be removed from office for cause, or without cause pursuant to the terms of an employment agreement, by a majority vote of the entire city council. (b) In the event that one or more council members believes that cause exists for the removal of a Charter officer, such council members shall present written charges to the entire city council at a regularly scheduled meeting for discussion. The city council may, by a vote at least three (3) council members that said charge would, if proved, constitute a violation and that a reasonable basis exists for believing the violation occurred, formally charge the named Charter officer with misconduct and immediately suspend such Charter officer from office. Notice of the suspension and the specific charges of misconduct shall be served upon the affected Charter officer in person or by certified or registered mail, return receipt requested, to the last known address of the affected Charter officer. The suspended Charter officer shall have the right to a hearing before the city council upon request. The suspended Charter officer shall be given a reasonable period of time in order to prepare for such hearing. At the conclusion of the hearing, the suspended Charter officer shall be removed if the city council finds, by a vote of at least three (3) council members that cause exists to support such removal. In the event that at least three (3) council members do not find 5 of 14 that cause exists for removal, the suspended Charter officer shall be immediately reinstated to his or her Charter office. Sec. 3.04. - City Manager; powers and duties. (a) The city manager shall be the chief administrative officer of the city. (b) The city manager, when necessary, shall appoint, suspend, demote, or dismiss any city employee under his jurisdiction in accordance with the law and the personnel rules of the city and may authorize any department head to exercise these powers with respect to subordinates in his respective department. (c) The city manager shall direct and supervise the administration of all departments of the city except the offices of the city clerk and city attorney. He shall attend all city council meetings unless excused by city council and shall have the right to take part in discussions, but not vote. (d) The city manager shall see that all laws, Charter provisions, ordinances, resolutions, and other acts of the city council subject to enforcement by the city manager are faithfully executed. (e) The city manager shall also prepare and submit the annual budget, budget message, and capital program to the city council and shall keep the city council fully advised as to the financial condition and future needs of the city, and shall make such recommendations to the city council concerning the affairs of the city as he deems desirable. The city council shall adopt the annual budget, millage rate and capital program, as presented or as modified, by resolution. (f) The city manager shall designate a qualified city employee to exercise the powers and perform the duties of city manager during any temporary absence or disability of the city manager. The city council may revoke such designation at any time and appoint another eligible person, other than a sitting council member, to serve as acting city manager. (g) The city manager, as authorized by the City Charter, the Sebastian Code of Ordinances, or by the direction of the city council, shall sign all contracts, bonds, debentures, franchises and official documents on behalf of the city, which shall also be attested by the city clerk. 6of14 Sec. 3.05. - City Clerk. The city clerk shall give notice of city council meetings to its members and the public, keep the journal of its proceedings and perform such other duties as are assigned to the clerk by this Charter or by the city council. Sec. 3.06. - Police Department. The City of Sebastian shall maintain its own Police Department, and daily operations of said police department will be overseen by a chief of police who will be a certified police officer and who will come under the purview of the city manager. Sec. 3.09. - City Attorney. (a) There shall be a city attorney of the city who shall serve as chief legal advisor to the city council and all city departments, offices and agencies, shall represent the city in all legal proceedings and shall perform any other duties prescribed by this Charter or by ordinance. (b) The city council shall have authority to retain additional counsel in specific actions or proceedings in its discretion. (c) The city attorney shall receive such compensation as may be determined by the city council. 7 of 14 CODE OF ORDINANCES PROCUREMENT POLICY Sec. 2-10. - Procurement of goods and services. (a) Applicability. Except as specifically set forth herein, all procurements for goods and services for the city shall fall under the ultimate responsibility of the charter officer utilizing the goods or services (hereinafter called the "purchasing officer"), and shall be effected in accordance with this section. (b) Purchasing thresholds. Any request for the purchase of materials, equipment, services and supplies unless otherwise exempt under this section is subject to competitive bid procedures as follows: (1) Up to $2500.00—Purchasing officer or their designee may authorize purchase. (2) $2500.01 to $5,000.00 --Two or more verbal quotes where practical; purchasing officer or designee may authorize purchase. (3) $5,000.01 to $15,000.00—Three or more written quotes; purchasing officer or designee may authorize purchase. (4) $15,000.01 to $25,000.00—Three or more written quotes; city council authorization required. (5) Over $25,000.00—Formal sealed bids and city council authorization required. (c) Exceptions to thresholds. (1) Joint bid: The purchasing officer shall have the authority to cooperate with other local governments or other public entities in the development and use of mutually cooperative procurement contracts or master agreements. Such contracts shall require council approval. (2) Piggyback: The purchasing officer shall have the authority to utilize contracts or master agreements of state, federal or other local governments or other public entities to procure goods and services, if the contract or agreement has been awarded through procedures substantially equivalent to the requirements of this section. The purchasing officer shall have the authority to procure goods and services if the purchase is with a person, firm, organization, or corporation whose offer to sell to the city is at sale price for that commodity equal to or lower than the existing piggyback price for the same or equal commodity being 8of14 sought. All such purchases over $15,000.00 shall continue to require council approval. (3) Sole source. A contract may be awarded for goods or services without competitive bids when the purchasing officer determines in writing that there is only one practical source for the required item. Approval shall be in accordance with the dollar threshold established by this section. (4) Emergency purchase. Where the purchasing officer finds it to be in the best interest of the city, they may declare the existence of an emergency procurement condition and suspend any or all provisions of this section. Spending authority under this provision shall not exceed $25,000.00, however, if a state of emergency covering the city has been declared the limit shall be raised to $50,000.00. All emergency purchases over $15,000.00 shall be reported to council as soon as practical. As used in this section, the term "emergency" means a sudden unexpected turn of events that causes: a. An immediate danger to the public health or safety; b. An immediate danger of loss of public or private property; c. An interruption in the delivery of an essential governmental service; or d. An interruption in the normal function and operation of any city department that would result in a work stoppage or other substantial monetary loss. (5) Change orders. The purchasing officer may approve cumulative changes of up to 15 percent of the total contract price. Changes in excess of 15 percent of the total contract price or any change in excess of $15,000.00 must have the prior approval of the city council. (6) Contract renewals. Any contract containing a provision for renewal may be renewed in accordance with its terms. Authorization for approval shall be in accordance with the dollar threshold established by this section. (d) Exemptions to applicability. This section shall not apply to: (1) Purchases between the council and nonprofit organizations, other governments, or other public entities, and intragovernmental services. (2) Purchases of advertising, works of art for public display, medically related professional services, employee benefit related purchases, water, utility services, postage, shows/displays/cultural events sponsored by the city. (3) Purchase of real property. 9 of 14 (4) Professional and personal service contracts including but not limited to attorney services, appraisers and expert witnesses services, which shall be approved by the city council if in excess of $15,000.00. (5) Procurement of goods and services when the same is governed by a mandatory procedure established by statute. (6) Franchise, sponsorship or joint enterprise agreements. (7) Any situation where compliance with this code will place the city in conflict with mandatory provisions of state law, federal law or the terms of any grant. (e) Prohibitions. No contract or purchase shall: (1) Be purposely subdivided to circumvent any requirements of this section. (2) Be made in excess of the amounts allocated from the general fund for the general classification of expenditures in the budget for the then current budget year, nor shall any expense of a special fund exceed the amount of money available to that fund. (f) Waiver. City council may waive or modify the bidding requirements for good cause. Sec. 2-11. - Local vendor preference policy. (a) Definitions. (1) Local business means the vendor has: a. A valid business tax receipt issued by the City of Sebastian or by Indian River County at the time a bid or proposal is submitted, and b. A physical address located within the local area, in an area zoned for the conduct of such business, from which the vendor is operating a significant portion of its business, and at which it maintains full-time employees. (2) Nonlocal business means any vendor that does not meet the definition of a business within the local area. (b) Establishment as local area business. To establish that a vendor is a local area business a vendor shall provide written documentation of compliance with the definitions for each such local business as defined in subsection (1) herein, at the time of submitting a bid or proposal. Post office boxes are not verifiable and shall not be used for the purpose of establishing the required physical business address. A vendor that misrepresents the local area status of its firm in a proposal or bid submittal to the city will lose the privilege to claim local preference status for a period two years. 10 of 14 (c) Local preference in purchasing and contracting. The City of Sebastian shall give preference to local area businesses in the purchase of commodities, personal property, general services, professional services, and the purchase of or contract for construction or renovation of public works or other public improvements by means of competitive bid. The city shall give such preference to local area businesses in the following manner: (1) Competitive bid. Each formal competitive bid solicitation shall clearly identify how the price order of the bids received will be evaluated and determined. When a qualified and responsive nonlocal business submits the lowest price bid, and the lowest bid submitted by a qualified and responsive local area business is within five percent of the lowest bid, then the lowest bidding local area business shall have the opportunity to submit an offer to match the price submitted by the lowest nonlocal area business bidder. Within five working days after the posting of the qualified and responsive bids, any local area business that has submitted a bid within five percent of the lowest bid by a nonlocal area business, and that wants the opportunity to match the lowest bid, shall submit a written offer to match the lowest bid. If the lowest local area business bidder submits an offer that matches the lowest bid submitted, then the award shall be made to such local area business. If the lowest local area business bidder declines or is unable to match the lowest bids, then the option to do so moves to the next local area business if its bid is within five percent of the lowest bids, and it is a qualified and responsive bidder. If the lowest bid is submitted by a qualified and responsive local area business, there is no local vendor preference. If a local area business accepts the opportunity to match the lowest bid of a nonlocal area business and that bid is based on unit price bid items and estimated quantities, then the unit prices for all bid items shall be reduced in proportion to the reduction in the local area business's total bid amount required to match the lowest total bid. (2) Ties. In the event of any tie in the final bid price between a local area business, and a nonlocal area business, a contract award, or the first opportunity to negotiate, as applicable, shall be made to the local area business. In the event of any tie between a business located within the City of Sebastian and a business within the greater local area, the business located within the City of Sebastian shall be awarded the contract or receive the first opportunity to negotiate, as applicable. In the event of any two businesses located within the City of Sebastian, or two 11 of 14 businesses located within the greater local area, the local vendor with the greatest number of full-time employees working in the City of Sebastian or the greater local area respectively, shall be awarded the contract or receive the first opportunity to negotiate as applicable. (d) Exception to local vendor preference policy. The local preference policy set forth herein shall not apply to any of the following purchases or contracts: (1) Goods or services provided under a cooperative purchasing agreement or piggyback agreement; or (2) Purchases or contract which are funded, in whole or part, by a governmental entity and the laws, regulations, or policies governing such funding prohibit application of that preference; or (3) Purchases made or contracts let under emergency or noncompetitive situations, or for litigation related legal services, as described in the city's purchasing policies; or (4) Purchases or contracts with an estimated cost of $5,000.00 or less; or (5) Purchases or contracts where the difference between the amount of the low bid submitted by a qualified and responsive nonlocal area business and the lowest bid submitted by a qualified and responsive local area business is greater than $25,000.00; or (6) Where all bids are rejected. (e) Waiver of the application for local vendor preference policy. Any request for the waiver of local preference to any particular purchase or contract must be heard by the city council prior to advertising the bid. The city council, as the awarding authority, may approve the waiver of local preference upon review and at its discretion. (f) Comparison and review of qualifications. The preferences established herein no way prohibit the right of the City of Sebastian to compare and review the quality of materials proposed for purchase, and to compare and review the qualifications, character, responsibility and fitness of all persons, firms or corporations submitting bids or proposals. Furthermore, the local preference established herein shall not prohibit the city from giving any other preference permitted by law in addition to the local preference contained herein. (g) Administration of local preference policy. This policy shall apply to all departments, functions and funds under the governance of the City of Sebastian, unless subsection (d) applies. 12 of 14 (h) Dispute resolution. Any dispute arising under the provision of this section shall first be presented to the city manager for determination. The decision of the city manager shall be appealable to the city council, and the decision of the city council shall be final and binding on all parties. Sec. 287.055, Fla. Stat. "Consultants' Competitive Negotiation Act" Acquisition of professional architectural, engineering, landscape architectural, or surveying and mapping services; definitions; procedures; contingent fees prohibited; penalties. (see attached) 13 of 14 The Consultant's Competitive Negotiation Act (CCNA) (F.S. 287.055) was enacted by the Florida Legislature in 1973 and governs the processes required for procurement of professional design services for public sector projects. Public agencies are required to follow CCNA for the acquisition of professional architectural, engineering, landscape architectural and survey and mapping services_ This statute applies to all public agencies seeking professional services and requires the selection to be based on a competitive selection process where the qualifications of the firm, or team, are evaluated rather than through a financially -based bid process. The CCNA process requires adherence with specific procedures during the procurement process. These procedures include: 1 A public announcement shall be provided when professional services are needed and these services exceed the thresholds provided in s. 287.017. The announcement shall include a general description of the project and direction as to how interested consultants may apply. The agency shall evaluate and rate the qualifications of the fines. The agency shall select, in order of 2 preference, no fewer than three firms deemed to be the most highly qualified to perform the required services. During the evaluation process, the agency shall consider such factors as the ability of the professional personnel; whether a firm is a certified minority business enterprise; past performance; willingness to meet time and budget requirements; location; recent, current, and projected workloads; and volume of work previously awarded. 3 The agency shall negotiate a contract with the most qualified firm at a compensation level which the agency determines is fair, competitive, and reasonable. Should the agency be unable to negotiate a satisfactory contract with the top ranked firm, negotiations 4 must be terminated. The agency shall then undertake negotiations with the second ranked firm. Should negotiations with the second ranked firm be unsuccessful, negotiations must be terminated and subsequently begun with the third ranked firm. The State of Florida's CCNA is similar to the Brooks Act (Public Law 92-582) which governs the processes that must be followed by the Federal Government for the procurement of design services for Federal projects. The Brooks Act requires a Quality Based Selection (QBS) process for selecting professional services consultants. The Federal regulations call for firms competing for Federal government design contracts to be selected on the basis of experience and technical expertise. Currently, forty-seven states have adopted legislation similar to the Brooks Act, requiring the procurement process for public sector contracts to be based on qualifications and experience. Some agencies in Florida, specifically FDOT, are required to follow the Brooks Act / CCNA due to Federal funding. This may also apply to other state and local agencies when project funds originate from the Federal level. Competitive, Cost Effective Process First and foremost, the CCNA process allows the Owner/Agency to focus on selecting the most qualified firm available. Multiple variables may be explored and examined during the evaluation and selection of potential firms. When professional services selections are based on costs alone, or a single variable selection process, the most qualified firm may not even be considered. The scope of work for a design project is rarely able to be defined definitively and in such a way that would allow a cost solicitation to be on equal footing. The agency does not tend to realize this until the completion of the work after analyzing the additional services. Project Effectiveness Research shows that projects utilizing a CCNA-type process for selecting design consultants traditionally perform better in terms of controlling costs, schedule, and quality. The industry average for construction costs growth is approximately 10%, whereas construction costs growth on quality based selection projects are typically around 31/6. In addition, studies show CCNA projects result in better schedule control when compared to national averages. With CCNA selection, the agency and the design consultant work together as a team to develop the schedule and the budget operating from mutual respect and trust, major components to a successful job. Addresses Incomplete Scope Utilizing a CCNA procurement process allows the design professional to assist with the evolution of design solutions which could result in decreased costs and/or increased client satisfaction. This encourages collaboration, respect and trust within the team. Often in RFQ's, the scope has not yet been fully developed by the agency and therefore equitable comparison of one firm's price proposal would not be comparable to another. When price is considered, often times a firm will come in and propose what seems to be the lower fee but the scope has been pared back in order to secure the commission. Once the commission is secured the firm engages in scope amendments to increase the original contract in order to complete the scope of work. Most municipalities lack the procurement or professional staff needed to prepare detailed scopes as part of the bidding process for design professionals. Rewards Innovation Quality based procurement projects allow greater opportunity for innovation by emphasizing a total evaluative approach during the procurement process as opposed to a singular evaluative approach based on price. 14 of 14