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04-22-02 v. `~ CITY OF ATLANTIC BEACH CITY COMMISSION MEETING AGENDA -APRIL 22, 2002 Call to order Invocation and pledge to the flag 1. Approve minutes of the Commission Meeting of April 8, 2002 2: Courtesy of Floor to Visitors 3. Unfinished Business from Previous Meeting A. City Manager's follow up report on issues from previous meetings 4. Consent Agenda ALL MATTERS LISTED UNDER THE CONSENT AGENDA ARE CONSIDERED TO BE ROUTINE BY THE CITY COMMISSION AND WILL BE ENACTED BY ONE MOTION IN THE FORM LISTED BELOW. THERE WILL BE NO SEPARATE DISCUSSION OF THESE ITEMS. IF DISCUSSION IS DESIRED, THAT ITEM WILL BE REMOVED FROM THE CONSENT AGENDA AND WILL BE CONSIDERED SEPARATELY. SUPPORTING DOCUMENTATION AND STAFF RECOMMENDATIONS HAVE BEEN PREVIOUSLY SUBMITTED TO THE CITY COMMISSION ON THESE ITEMS A. Acknowledge receipt of the following reports for March 2002: Building Department Activity Report, New Occupational Licenses, Public Safety Report, Recreation Department Report and Utility Sales Report (City Manager) B. Award contract to Nature's Way Natural Pest Control, Inc. in the amount of $17,4b9.72 for ditch spraying, including Bid Alternates #1 and #3, pursuant to the specifications of Bid No. 0102-15 (Bid to be awarded contingent upon the contractor submitting a Duval County Occupational License) (City Manager) 5. Committee Reports 6. Action on Resolutions A. Resolution No. 02-07 A RESOLUTION OF THE CITY OF ATLANTIC BEACH, FLORIDA, IN SUPPORT OF THE U.S. NAVY PRESENTING THEIR ANNUAL INTERNATIONAL AIR AND SEA SPECTACULAR SHOW AT NAVAL STATION MAYPORT AND THE BEACHES IN THE FALL OF 2003 B. Resolution No. 02-08 A RESOLUTION OF THE CITY OF ATLANTIC BEACH, FLORIDA, SUPPORTING THE EFFORTS OF THE BEACHES AREA HISTORICAL SOCIETY TO CREATE A MUSEUM AND TO PRESERVE HISTORIC STRUCTURES IN THE BEACHES AREA (Mayor) 7. Action on Ordinances -vim,.., Page Two AGENDA Apri122, 2002 8. Miscellaneous Business A. Reject all bids received for Core City Improvements under Bid No. 0102-13 and authorize staff to clarify the scope of work and rebid the project (City Manager) B. Waive formal bidding requirements and authorize staff to issue purchase orders to Reed & Shows Meter Supply and Repair Company for meter testing, repair and parts in an amount not to exceed $12,600.00 (City Manager) 9. City Manager 10. Reports and/or requests from City Commissioners and City Attorney Adjournment If any person decides to appeal any decision made by the City Commission with respect to any matter considered at any meeting, such person may need a record of the proceedings, and, for such purpose, may need to ensure that a verbatim ~ record of the proceedings is made, which record shall include the testimony and evidence upon which the appeal is to be based. Any person wishing to speak to the City Commission on any matter at this meeting should submit a request to the City Clerk prior to the meeting. For your convenience, forms for this purpose are available at the entrance to the Commission Chambers. Every effort is made to indicate what action the City Commission is expected to take on each agenda item. However, the City Commission may act upon any agenda subject, regardless of how the matter is stated on the agenda. In accordance with the Americans with Disabilities Act and Section 286.26, Florida Statutes, persons with disabilities needing special accommodation to participate in this meeting should contact the City Clerk by 5:00 PM, Friday, April 19, 2002. "'"'~" MINUTES OF THE REGULAR MEETING OF THE ATLANTIC BEACH CITY COMMISSION HELD IN CITY HALL, 800 SEMINOLE ROAD AT 7:15 P.M. ON MONDAY, APRIL 22, 2002 PRESENT: John Meserve, Mayor Richard Beaver, Mayor Pro Tem Mike Borno Paul Parsons Dezmond Waters, Commissioners AND: James Hanson, City Manager Alan C. Jensen, City Attorney Maureen King, City Clerlc Mayor Meserve called the meeting to order at 7:15 p.m. The invocation offered by Mayor Meserve was followed by the Pledge of Allegiance to the Flag. ~~. 1. Approval of the minutes of the Regular Commission meeting of March April 8, 2002 Motion: Approve the minutes of the Regular Commission Meeting of April S, 2002 as presented. The motion carried unanimously. 1215 Seminole Road Residential Fire Mayor Meserve stated that he had requested that City Manager Hanson address the following issues raised by neighbors after a fire heavily damaged a home located at 1215 Seminole Road: (1) A response time of twenty-five minutes, (2) improperly manned truck, (3) the inability to locate a fire hydrant close to the fire, (4) the amount of time expended to put out the fire, and (5) confusion and lack of supervision at the scene. Chief Thompson distributed copies of the Atlantic Beach Police 911 radio log, which indicated that just over four minutes elapsed between the first 911 call and Jacksonville Fire and Rescue's arrival at the fire. The report is attached and made part of this official record as Attachment A. : Sergeant Dan Watts, an Atlantic Beach Police Officer, who was the first ` person to arrive at the scene, confirmed the elapsed time. An audio tape of the 911 calls was played while a videotape shot from Officer Jason Fissel's police car ran showing the home engulfed inflames. A clock on V V .O q T 'T E E s S M S O E T C I O Y O N E N N D S Q COMMISSIONERS BEAVER X X BORNO X PARSONS X WATERS X X MESERVE X Minutes Page -2- April 22, 2002 .....~ the tape indicated that it took approximately ten minutes for the crews to fight the fire. Lorin Mock, Chief of Operations for Jacksonville Fire and Rescue, stated that the station was properly staffed and explained the operating procedures in detail for fighting. a residential fire. Chief Mock indicated that the fire was intensified by flammable materials stored in the carport. A question and answer session followed the reports. Commissioner Waters inquired concerning the flammability of vinyl siding and Chief Mock indicated that it was highly combustible. Stephen Kuti of 1132 Linkside Drive inquired concerning the water pressure necessary to fight the fire. Chief Mock explained in detail how flow rates and water pressure could be controlled by the engineer. Douglas Speed, Jr. of 1207 Seminole Road felt there was confusion at the scene; he felt the hose size used was inadequate and more time was expended to fight the fire than shown on the video tape. Peter Albano, owner of the property,, stated that firefighters were not ~ wearing their equipment when they got off the truck. Chief Mock explained the dressing procedure and indicated that they were wearing bunker pants and t-shirts when they got off the truck, but could not wear all of their gear on the truck because they had to wear seatbelts. Joyce Veith of 1235 Seminole Road stated the men were wearing dark colored t-shirts and pants when they got off the truck. She also stated that the adjacent house was singed due to the intensity of the fire. Mayor Meserve thanked Chief Mock and stated that although all of the concerns may not have been addressed, it was always his goal to have a fire department in the City of Atlantic Beach the citizens would have confidence in and trust. 2. Courtesy of the Floor to Visitors: Chip Bachara of 50 N. Laura Street stated that he was the attorney representing Petticoat Contracting (Item 8A), and the company felt it was inappropriate to reject all bids since the company had presented the city with a responsive bid within the budgeted amount of the project. Mr. Bachara presented background information concerning the bids and stated there was approximately a $1 million difference between the low "'~"^ bid and the second lowest bid submitted by Petticoat Contracting. Mr. Bachara stated that because of the wide discrepancy between the two bids, it appeared an error was made and he learned that Jensen Civil OMMISSIONERS M O T I O N S E C O N D Y E S N Q Minutes Page -3- Apri122, 2002 Fem... Construction (JCC) had contacted the city to discuss the possible cause of the difference.. Mr. Bachara referenced a letter from Jensen Civil Construction, which indicated that their bid did not include certain dewatering procedures within the base of the bid.. It was further reported due to this discrepancy, it was his understanding that the city had decided to reject all of the bids. He reiterated that Petticoat had submitted a responsive bid, which met the specifications and was below the engineer's estimated cost for the project. He felt it inappropriate to reject all of the bids, since the city had received responsive bids. He felt it would only serve to give JCC an opportunity to correct mistakes and get a second chance to adjust their bid. He felt this provided JCC an unfair advantage, and indicated that the Florida Courts provided guidelines, if a basis for rejecting all bids existed. Mr. Bachara agreed that municipalities do have broad discretion to reject all bids, but as cited in the case of Wood-Hopkins Construction v. JEA from the First District Court of Appeal (DCA), the court indicated that it would not accept the JEA's contentions that it had unbridled discretion to reject any and all bids with or without cause. Mr. Bachara indicated that the DCA went on to state that such action, as with all other discretionary functions of public entities, was subject to the requirements that its exercise be not _,,, arbitrary, unreasonable, or capricious, and without these limitations, the purpose of competitive bidding was circumvented. The court felt rejection of all bidders then became a means of allowing a favorite bidder another chance to submit a low bid. Alan Potter of 374 Second Street expressed concern for the financial well being of the city relative to Item 8A. Mr. Potter stated that the city had hired a professional engineer and somehow, there was a dispute between the contractors as to what was intended which resulted in a $1 million difference between the bids. He felt the city should look into this matter to see how such an error could have occurred. Rita McAndrews Giblin of 40 11th Street distributed photographs of the recently modified 11th Street dune crossover and expressed dissatisfaction with the workmanship. She felt the structure was too steep and the modified ramp was too tall. Sam VanLeer, President of the Beaches Historical Society, stated that he was present to support passage of Resolution No. 02-08 (Item 6B) and to answer questions concerning building of the museum. Mary-Lou Boyer, representing the Cultural Arts Board, displayed a miniature of the winning sculpture, which was unanimously selected by "~°"` the Sculpture Competition Jury. Ms. Boyer indicated that the Cultural Arts Board would like Commission approval to hold afund-raiser for the OMMISSIONERS M O T I O N S E C O N D Y E S y Q Minutes Page -4- Apri122, 2002 construction and installation of the sculpture. There were no objections to the request. Sculptor Brad Talley, the winner of the competition, was introduced and stated he would put his $1,000 prize with the $3,500 the city had budgeted for the sculpture. He explained that the cost of the sculpture would depend on the materials chosen for its construction. Mike Lee of 530 Sherry Drive expressed his frustrations with the Sherry Drive improvement project. and listed what he believed to be unnecessary inconveniences he had experienced during construction. Mr. Lee indicated he would like to be given advanced notice of what is going on with the project. 3. Unfinished Business From the Previous Meeting A. City Manager's Follow Up Report on Issues. from Previous Meetings City Manager Hanson commented on each item of his written report, which is attached and made part of this official record as Attachment B. ~ Elimination of Steps on Beach Ramps at 18th and 20th Streets Commissioner Parson suggested that reflective tape be installed on the steps until such time as the ramps are reconstructed within the next two years. Commissioner Waters requested that the design of the ramps be revisited to eliminate the steps and keep within the height requirements. 4. Consent Agenda: A. Acknowledge receipt of the following reports for March 2002: Building Department Activity Report, New Occupational Licenses, Public Safety Report, Recreation Department Report and Utility Sales Report Mayor Meserve requested that Item B be removed from the Consent Agenda for further discussion. Motion: Approve Consent Agenda Item A as presented. There was no discussion and the motion carried unanimously. B. Award contract to Nature's Way Natural Pest Control, ""` Inc. in the amount of $17,469.72 for ditch spraying, including Bid alternates #1 and #3, pursuant to the specifications of Bid No. 0102-15 (Bid to be awarded OMMISSIONERS M O T I O N S E C O N D Y E S N Q BEAVER X X BORNO X X .PARSONS X WATERS X MESERVE X P~ Minutes Page -5- Apri122, 2002 contingent upon the contractor submitting a Duval County coMMlssIONERs Occupational License) (City Manager) '- Motion: Award contract to Nature's Way Natural Pest BEAVER Control, Inc. in the amount of $17,469.72 for ditch BoRNo spraying, including Bid alternates #1 and #3, pursuant to PARSONS the specifications of Bid No. 0102-15. WATERS MESERVE Mayor Meserve requested further information concerning the apparent low bidder and the second lowest bidder. City Manager Hanson explained that late that afternoon the City received a letter charging collusion between two of the bidders since they were former partners in a business, which had split into two different businesses, each competing for the work. City Manager Hanson deferred to Public Works Director Kosoy for further explanation. Public Works Director Kosoy explained that the apparent low bidder and second lowest bidder used to work for Vortex Biological, Inc. He indicated that the two bidders were not in collusion since the dissolution of their business partnership was less than amicable. He further explained that the individuals running the companies each had five years experience in ditch spraying and pest control. It was fiu ther explained that Dave Miller, the owner of Nature's Way, felt he could perform the city's work in conjunction with the ditch spraying he provided at Oceanwalk and the Selva Marina Country Club. It was also pointed out that approximately $15,000 of the work previously performed by Vortex Biological, Inc., was now being completed by City Crews using the Menzie Muck. A brief discussion ensued and the motion carried unanimously. 5. Committee Reports: There were no Committee Reports. 6. Action on Resolutions: A. Resolution No. 02-07 A RESOLUTION OF THE CITY OF ATLANTIC BEACH, FLORIDA, IN SUPPORT OF THE U.S. NAVY PRESENTING THEIR ANNUAL INTERNATIONAL AIR AND SEA SPECTACULAR SHOW AT NAVAL STATION MAYPORT AND THE BEACHES IN THE FALL OF 2003. BEAVER Motion: Adopt Resolution No. 02-07. BORNO PARSONS There was no discussion and the motion carried unanimously. WATERS MESERVE M S O E T C. I O Y O N E N N D S p X X X X X X X X X X X X X x Minutes Page -6- Apri122, 2002 B. Resolution No. 02-08 A RESOLUTION OF THE CITY OF ATLANTIC BEACH, FLORIDA, SUPPORTING THE EFFORTS OF THE BEACHES AREA HISTORICAL SOCIETY TO CREATE A MUSEUM AND TO PRESERVE HISTORIC STRUCTURES IN THE BEACHES AREA (Mayor) Motion: Adopt Resolution No. 02-08. Mayor Meserve complimented the Beaches Area Historical Society for its work stated that a museum celebrating life at the beaches would be a wonderful cultural addition for the area. Commissioner Waters suggested that an Atlantic Beach Historical Room be included in the design of the museum. Mr. VanLeer indicated that the conceptual plan for the museum included areas for municipalities, which would change periodically as other exhibits were displayed. There were no further comments and the motion carried unanimously. ..., .. 7. Action on Ordinances: There was no action on ordinances. 8. Miscellaneous Business: A. Reject all bids received for Core City Improvements under Bid No. 0102-13 and authorize staff to clarify the scope of work and rebid the project (City Manager) Motion: Reject all bids received for Core City Improvements under Bid No. 0102-13 and authorize staff to clarify the scope of work with an addendum and rebid the project. City Attorney Jensen stated that he had reviewed the recommendation of Public Works Director Kosoy and stated that when he was initially contacted last week there was discussion of possibly allowing some changes to the low bid, which he advised was not permissible. He further stated that it was his understanding that if the Commission decided to award the bid to the low bidder, Jensen Civil Construction (JCC), the company had indicated they would not sign the contract. City Attorney Jensen indicated that the Commission had two options in this matter. He indicated that the first option, based on OMMISSIONERS M O T I O N S E C O N D Y E S N Q BEAVER X X BORNO X X PARSONS X WATERS X MESERVE X BEAVER X X BoRNO x x PARSONS X WATERS X MESERVE x ~. Minutes Page -7- Apri122, 2002 Public Works Director Kosoy's recommendation, was to reject all bids. He explained that the bid specifications stated that the Commission reserved the right to reject all bids, with or without cause. He agreed with Mr. Bachara in that case law stated that the Commission cannot just arbitrarily or capriciously reject all bids. He explained that the Commission must take into account all considerations-all the reasons for rejecting the bids, and if it was the collective opinion of the Commission that there were valid grounds to reject all bids, then the Commission could do so. City Attorney Jensen further stated that Mr. Bachara and he had discussed the cases earlier in the day, and copies of a letter dated Apri122, 2002, written to Mr. Bachara, were distributed to the Commissioners. The letter is attached and made part of this official record as Attachment C. City Attorney Jensen read the following from a Supreme Court decision attached to the letter: ... "the strong judicial deference accorded an agency's decision in competitive bidding situations: [A] public body has wide discretion in soliciting and accepting bids for public improvements and its decision, when based on an honest exercise of this discretion, will not be overturned by a court even if it may appear erroneous and even if reasonable persons may disagree." City Attorney Jensen explained that the court was very reluctant to substitute its judgment for a judgment of the local governing body, in this case, the City Commission. He advised that if the Commission discussed the various reasons to reject the bids, as listed in Public Works Director Kosoy's report, and made an honest exercise to do that, and ultimately decided to reject the bids, then be believed the Commission was on solid legal ground and was allowed to do so. City Attorney Jensen explained that the Commission had another option, based on the fact that three of the four bidders which responded apparently (and he had not confirmed it, but indicated that Public Works Director Kosoy had confirmed it with at least one of the bidders) had interpreted the design plans that dewatering would be required everywhere, which resulted in the $1 M - $1.5 spread from the low bidder to the next highest bidder and the other two bidders. City Attorney Jensen indicated. that it could become an issue of fairness, and advised that the Commission would have an option of awarding the contract to Petticoat Contracting as the next lowest responsive bid within budget, since JCC had indicated that if they were awarded the bid as they bid it, they would not sign the contract. City Attorney Jensen felt the Commission would be on safe ground legally if either option was chosen. OMMISSIONERS M O T I O N S E C O N D Y E S N Q Minutes Page -8- April 22, 2002 Commissioner Parsons inquired as to the responsiveness of the JCC bid and inquired if they could be discounted and the project rebid. City Attorney Jensen indicated that if the Commission determined that JCC's bid was not responsive, then the bid could be awarded to the second lowest bidder. City Attorney Jensen stated that it was his understanding that JCC's bid was responsive, but their bid included a very low price for dewatering. Discussion ensued concerning the dewatering requirement and Commissioner Borno felt that JCC made an honest mistake with their bid. He felt the dewatering requirement should be clarified as an addendum to the bid to settle the misunderstanding and rebid the project. Commissioner Beaver believed the bid document to be in error, and stated that there was a big discrepancy between 700 and 15,000 linear feet. He felt that all of the contractors would have an advantage if the project was rebid. Mayor Meserve asked City Attorney Jensen if the projectwould come to a halt if the lawyer for Petticoat decided to go to court. A. ~„ City Attorney Jensen advised that if the Commission decided to rebid the project, Mr. Bachara could try to get a temporary injunction to prevent the city from rebidding the project. by arguing that the JCC bid was not responsive and that Petticoat Construction was the low responsive bidder and the contract should be awarded to them. City Attorney Jensen further advised that if the Commission awarded a contract before that action took place, then generally the contractor who was protesting would find his remedy limited to a suit for damages and not injunctive relief. Mayor Meserve indicated that he saw no fraud and felt an honest mistake had been made on a document which may not have been written as clearly as it should have been. He saw no collusion nor bad faith on the city's part to start the process over again. He felt that everyone was more knowledgeable about each other's bid and a new company may wish to bid on the project. Commissioner Waters inquired if JCC had done work for the city in the past. Public Works Director Kosoy indicated that they had bid on several jobs, but had never been the low bidder. Mr. Kosoy indicated that they had good references. Commissioner Waters then inquired concerning Petticoat Contracting's work for the city. Public Works Director Kosoy responded that they had done two jobs for the city. OMMISSIONERS M O T I O N S E C O N D Y E S N Q Minutes Page -9- Apri122, 2002 Discussion ensued and Commissioner Waters indicated that he did not favor always choosing the low bidder. He indicated that he wanted to know why the city would rebid the project and hand it to JCC just because they were the low bid and already had made a mistake in their bid. He felt that Petticoat Contracting must have done good work for the city in the past or they would not have been rehired. City Attorney Jensen indicated that work done by all of the companies who pre-qualified, whether for this city or other cities, had already been considered and at this point should have no bearing on the Commission's decision. Commissioner Waters inquired if Petticoat Contracting could do a job of this magnitude and Public Works Director Kosoy indicated that they could perform the work. Public Works Director Kosoy provided background information and indicated that in addition to the dewatering issue, JCC expressed concern relative to maintenance of traffic and an alternate for paving. He further stated that these additional issues had not been addressed by the other bidders and maybe another reason for rebidding the project. Commissioner Beaver inquired if rebidding the project would eliminate the possibility of a lawsuit. City Attorney Jensen advised that it would not eliminate the possibility of a lawsuit. City Manager Hanson clarified that the main issue was dewatering, however, he pointed out that on their bid, JCC had proposed the use of a different fill material for the roadway after it was opened up for temporary paving. He indicated that Public Works Director Kosoy had gotten with a materials testing firm to evaluate JCC's proposal and concluded it was an acceptable solution. He felt that the material should be included in the addendum to give everyone the same right to bid on the slightly modified proposal, which might save money. Following further discussion, the motion carved unanimously. Commissioner Beaver inquired concerning a timeframe for the rebidding process. City Manager Hanson felt that it would be two weeks before the. bid opening. It was confirmed that the project was being rebid, but there would be no new pre-qualifying. B. Waive formal bidding requirements and authorize staff to issue purchase orders to Reed & Shows Meter Supply and Repair Company for meter testing, repair and parts in an amount not to exceed $12,600 (City Manager) OMMISSIONERS M O T I O N S E C O N D ' Y E S N Q Minutes Page -10- Apri122, 2002 ~.,,. Motion: Waive formal bidding requirements and authorize staff to issue purchase orders to Reed & Shows Meter Supply and Repair Company for meter testing, repair and parts in an amount not to exceed $12,600. City Manager Hanson explained that there were few companies qualified to do the work, and in the past the annual testing and repair of large meters had not been bid since the cost was under $10,000. He further explained that the cost for parts was unknown, but should not exceed last year's cost of $5,000. Commissioner Beaver inquired concerning the number of large meters to be tested. Utility Director Kaluzniak reported that the city had thirty-two large meters and expected to repair. about one-half of them. There was no further discussion and the motion carried unanimously. 9. City Manager ~~~„, In addition to his written report, which is attached and made part of this official record as Attachment D, City Manager Hanson reported on the following items: Reported that Dancing in the Streets would be held on May 18, 2002 from 9:00 a.m. to 11:00 p.m. • Reported that the Selva Marina Streets paving was complete. 10. Reports and/or requests from City Commissioners and City Attorney Commissioner Borno • Suggested that a workshop be held to discuss projects for the %2 Cent Sales Tax • Inquired if the requested change in the plans for the Adele Grage Community Center restroom would lessen the square footage in the building. City Manager Hanson responded that it would affect only the "Green Room". Commissioner Waters r • Concurred with Commissioner Borno's workshop request. OMMISSIONERS M O T I O N S E C O N D Y E S N Q BEAVER X X BORNO X X PARSONS X WATERS X MESERVE X Minutes Page -11- Apri122, 2002 Mayor Meserve indicated that he would like to schedule the workshop after the rebidding of the core city project. Commissioner Beaver • Indicated that he favored the hiring of a consultant to monitor beach renourishment. He felt long term this would be very beneficial to the beach cities and indicated that the state would pay half the cost with the remainder divided between the cities. • Thanked AT & T for the $5,000 donation for the Adele Grage Community Center renovations. • Reported that on either May 4th or 11th there would be a citywide fundraiser and demolition party at Bull Park to kickoff the remodeling of the Adele Grage Community Center. He indicated that final details would follow. Commissioner Borno • Thanked the City Manager and Chief Thompson for the visual presentation concerning the Seminole Road fire. Commissioner Parsons • Stated that he hoped the Core City Project did not experience the same problems as the Sherry Drive Reconstruction Project and suggested that core samples be taken to see if tree logs were located on other streets in the city. • Requested that the city look into the workmanship on the 11th Street beach access. Encouraged the Commissioners to attend the next bike path meeting. Commissioner Waters • Supported Commissioner Beaver's citywide fundraiser. • Opposed core samples being taken for the Core City Project since those taken during construction of Town Center failed to identify underlying sheets of concrete 18" thick. OMMISSIONERS M O z I O N S E c O N D Y E S N Q Minutes Page -12- Apri122, 2002 • Inquired when paving of Sherry Drive would begin. Public Works Director Kosoy indicated that paving would begin after driveways on both sides of the street were completed, which would take approximately two weeks. Mayor Meserve • Assured Mrs. Giblin that the city would look into the workmanship of the 11th Street dune crossover. There being no further discussion or business to come before the City Commission, the Mayor declared the meeting adjourned at 9:35 p.m. Attest: Ma en King Certified Munic~a C rk OMMISSIONERS M O T I O N S E C O N D Y E S N O - ATTACHMENT A - APRIL 22, 2002 COMMISSION MEETING __ __ Atlantic Beach Police 911 and Police Radio Log Fire at 1215 Seminole Road 12-Apr-02 Time Lapse Actual Time 0 3:19:37 1st 911 Call received by AB, transferred to JFR 21 Seconds 3:19:58 911 Calls, JFR confirms alarm out 1 Minute, 5 Seconds 3:20:42 AB Dispatches Sgt. Watts 1 Minute, 21 Seconds 3:21:03 More 911 Calls 1 Minute, 42 Seconds 3:21:24 Sgt. Watts in area, hears explosions 2 Minutes, 1 Second 3:21:38 Sgt. Watts asks for address confirmation 2 Minutes, 15 Seconds 3:21:52 More 911 Cails 2 Minutes, 22 Seconds 3:21:59 Sgt. Watts on the scene 2 Minutes, 50 Seconds 3:22:27 Officer Fissel on scene 2 Minutes, 53 Seconds 3:22:30 More 911 Calls 3 Minutes, 40 Seconds 3:23:17 Sgt. Watts asks for check on JFR response 4 Minutes, 8 Seconds 3:23:45 Sgt. Watts reports JFR on scene 4 Minutes, 50 Seconds 3:24:27 JFR calls by phone to report on the scene to AB 3:25:04 911 Call - ATTACHMENT B ~- APRIL 22, 2002 COMMISSION MEETING __ _ _ _ _ Apri115, 2002 MEMORANDUM TO: The Honorable Mayor .and Members of the City Commission FROM: Jim Hans City anager SUBJECT: Follow-up I ems Elimination of Stens on Beach Ramps at 18th and 20th Streets; At the last Commission Meeting, concerns were raised about the beach access ramps at 18th and 20th Streets. Both have. steps in the middle and some people have tripped. A question was asked about the cost to rebuild the access walkways to eliminate the'steps. The contractor that is reworking the ramps at 3 other streets gave the City prices for reconstructing ramps at 18th and, 20th Streets. The cost for the 18th Street ramp is estimated at $25,000 and the cost for the 20th Street ramp is estimated at $7,000. Please .note that it would be impossible to build them in a way to meet the City's requirement for the ramps to be within 25 inches of the underlying sand dunes. The change in grade in some places is too steep to ramp over and stay within 25 inches. Another issue is that the decking on these is getting old and the ramps will need significant reconstruction within the next couple of years. It maybe easier and less costly in the long run to save the elimination of the steps until that larger project is begun. Striping for Selva Marina Drive; When the report was made at the last. Commission Meeting about the cost to add stripes and reflective markers along various major streets in Atlantic Beach, a fuuther request was made to find the cost to add striping to Selva Marina Drive. That cost is now estimated at $10,300.. This would be in addition to the $18,000 estimated for additional striping on the other. streets previously reported. Consequently, the total to add. striping to all the streets requested would be $28,300. Use-Bv-Exception for Motorcycle Sales and Service at 1420 Mayport Road; At the last CommissionMeeting, it was reported that the applicant that had requested approval fora Use- By-Exception at 1420 Mayport Road for a motorcycle sales and service business had passed- away. The Commission's understanding of the request at that time was that it would be deferred. pending further investigation. Section 24-63(k) states, "unless expressly granted by the City Commission, the Use-by-Exception shall be granted to the Applicant only and shall not run with the .title o, f'the property." The application was submitted in the name of James McKenzie, Jr who has since died. Therefore, the Use-by-Exception cannot be approved as filed and should be considered withdrawn. If any AGENDA ITEM #3A APRIL 22, 2002 partners or successors in title to the motorcycle business wish to apply for aUse-by-Exception in their name, it would require a separate application process. Fire Hydrant at 5"' Street and East Coast Drive; An allegation was made that the fire hydrant at the intersection of 5~' and East Coast could not be working because it had been hit by a car and was bent to one side. City crews have since checked that hydrant and found that it is in fact working. ;4, w .,, ALAN C. JENSEN Attorney at Law - ATTACHMENT C APRIL 22, 2002 COMMISSION MEETING __ _ 935 North Third Street Post Ofl"ice Box 50457 Jacksonville Beach, Florida 32240-0457 Telephone (904) 246-2500 April 22, 2002 Henry G. Bachara, Jr. , Esquire P. O. Box 4788 Jacksonville, FL 32201 Facsimile (904) 246-9960 UMail: AJensenLaw~aol.com. VIA FACSIlVIILE (904) 598-6300 RE: Core City Capital Improvement Project Bid No. 0102-13 Dear Mr. Bachara: I am the City Attorney for Atlantic Beach and have been provided with a copy of your letter dated April 18, 2002, addressed to Bob Kosoy, the Director of Public Works for Atlantic Beach. Certain statements contained in your letter should be further clarified in order that we all have an accurate understanding of the facts in this matter. First, you refer to Mr. Kosoy's recommendation to be ,made to the City Commission to be with regard. to the "bid protest." As we discussed by telephone last week, I do not believe there is a bid protest at this time, and your client's letter of April 11, 2002, references certain matters which .would bring a formal bid protest from your client. At this point, the City has received and opened the four (4) bids, and a determination has .yet to be made by the City. Commission in regard to the options available to it. Next, I do not believe that one of the bids was non-responsive, as you indicate in your letter. Based upon the four bids received and a review of them, the City must consider all .options available to it, and the final decision is to be made by the City Commission, which hopefully it will do at this evening's meeting. Certain items have come to the attention of the City, which could be clarified in an addendum, should the City decide to reject all bids. The City's own design engineer for this project indicated, in regard to dewatering, that a bidder may have misinterpreted the design engineer's intent.. Therefore, if all bids are rejected and the project is rebid, an addendum will be prepared to clarify not only dewatering, but .also specify proper interim maintenance of roadways during utility line installation, and specify another option for base materials. This would obviously provide further benefit to all. bidders and best protect the expenditure of public funds. You have stated that rejection of all bids would violate Florida Iaw since the decision would be ,, :., arbitrary and capricious. I would appreciate you providing me with your reasons for malting that statement and any Florida law you claim such an action would violate. henry G. Bachara, Jr. , Esquire Apri122, 2002 Page 2 .,. You should also be aware that the City of Atlantic Beach never agreed to pay Jensen Civil by the linear foot for all dewatering required for construction, including all storm and sewer pipe footage, as stated in the April 11, 2002, letter from Mr. Bailey at Jensen Civil to Mr. Kosoy. Any such agreement by the City of Atlantic Beach must be made by the City Commission and it has not yet acted, as stated above. I have met with the City Manager and discussed the matter at length with Mr. Kosoy, and .all options available to the City have been considered.. The recommendation to the City Commission by Mr. Kosoy is for its consideration, but I am sure that the Commission will make its decision after considering all options available to it. .Paragraph 1.17.A. of the Invitation to Bid states the following: "Until final awazd of Contract, the Owner .reserves the right to reject any and all Bids, with or without cause; to waive any formality or irregularity; or to accept the Bid which is in the best interest of the Owner. " I must take strong exception to your suggestion that the City has. allowed a bidder to submit an extremely low bid, seek to renegotiate its bid, and being unsuccessful in that process, successfully. "request" that the project be rebid in its entirety. If this is a suggestion that the City of Atlantic- Beach acted in concert with Jensen Civil for any purpose, it is incorrect. I am confident that the City Commission will review all its options and make a decision that is consistent with Florida law, is neither arbitrary nor capricious, and which will be proper. As requested above, if you have any evidence of any kind to support the statements made in your ,April 18 letter, especially that "...rejection of all bids would violate Florida law since the decision' would be arbitrary and capricious...", I would appreciate you providing same prior to the. meeting this evening. Also, if you have any law to that effect, I would appreciate that to me as well. I have reviewed various cases, including Wolf Ridge Plastics, Inc. vs. Jacksonville Electric Authori 388 So.2d 1298 (Fla 1" DCA 1980),. and can find nothing to indicate that the City's action, if it chooses to reject all bids, would violate any Florida law. If you wish to discuss this matter further, please do not hesitate to contact me V ry truly You s, ~-~ EN ACJ/sky ,~. Cc: James R. Hanson, City Manager (via fax) Robert S. Kosoy, Director, Public Works (via fax) Mayor and City Commissioners 530 So.2d 912 13 Fla. L. Weekly 462 (Cite as: 530 So.2d 912) Supreme Court of Florida. DEPARTMENT OF TRANSPORTATION, Petitioner, GROVES-WATKINS CONSTRUCTORS, Respondent.. No. 71081. Aug. 18, 1988. Rehearing Denied Oct. 6, 1988. State Department of Transportation applied for review of decision of the First District Court of Appeal, 511 So.2d 323, that reversed Department's order rejecting all bids and ordered Department to accept lowest .bid. The Supreme Court, Barkett, J., held that absent evidence of fraud, or that rejection was to avoid competition, Department could reject all bids, Quashed and remanded. West Headnotes »'•,. [1] Public Contracts «10 316Ak10 When agency rejects all bids, no statutory right exists in any bidder to have its bid accepted. West's F.S.A. § 337.1 I (3). [2] Highways G°`~113(1) 200k113(1) .Department of Transportation's rejection of .all competitive bids as excessive, based on, at most, its own erroneous prebid estimate was not improper and, absent evidence.of fraud or that rejection was to avoid competition, agency was not required to accept lowest bid. *912 Robert I. Scanlan, Appellate Atty. and Thomas H. Bateman, III, Gen. Counsel, Tallahassee, for petitioner. Alan C. Sandberg, David S. Dee and F. Townsend Hawkes of Carlton, Fields, Ward, Emmanuel, Smith, Cutler & Kent, P.A., Tallahassee, for respondent. Robert A. Ginsburg, Dade Co. Atty. and Deborah Bovarnick Mastin, Asst. Co. Atty., Miami, for Dade County, amicus curiae. BARKETT, Justice. Page 1 We review Groves-Watkins Constructors v. Department of Transportation, 511 So.2d 323 (Fla. 1 sf DCA 1987), because of asserted conflict with our decision in Liberty County v. Baxter's Asphalt & Concrete, Inc., 421 So.2d 505 (F1a.1982). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const The issue .before us is whether the Department of Transportation ("DOT") lawfully rejected all bids submitted on a highway construction project as too high and properly directed that the project be rebid. We conclude that it did and quash the decision below. Respondent, Groves-Watkins Constructors ("G-W"), submitted the lowest of three bids received by DOT for the construction of a complex highway interchange in Broward County. Although G-W submitted the lowest bid, it was still 29% higher than DOT's prebid estimate. [FNl ] DOT notified G-W that it intended to reject its bid as too high and readvertise the project: FN1. DOTS policy is that it may reject all bids if the lowest bid is greater than. 7% above DOTS official estimate of the cost of the project. The invitation to submit bids on this project informed the bidders of this policy. G-W filed a formal .complaint and the matter was referred to a hearing officer pursuant to sections 120.53(5) and 120.57(1), Florida Statutes (1985). [FN2] Based upon the figures provided by G-W, [FN3J the hearing *913 officer determined .that DOT's estimate. was erroneous and. G-W's cost estimate was correct. On that basis, the hearing officer concluded that G-W was entitled to the award of the. contract DOT declined to adopt the. hearing officer's recommended order and denied the award. [FN4] DOT's Final Order disputed the hearing officer's conclusion that DOT's estimate was unreasonable and erroneous and gave four .reasons for rejecting all bids: (1) the low bid exceeded the estimate by $12 million and thus was too high; (2) G-W failed to show it had the requisite federal concurrence in the award; (3) DOT sought increased competition; (4) the hearing offcer's recommendation, by requiring -'DOT to compare the bids with a "corrected .estimate," was contrary to existing DOT policy. FN2. Section .120.53(5) .establishes the procedure for resolving protests arising from Copr. ©West 2002 No Claim to Orig. U.S. Govt. Works ~, 530. So.2d 912 (Cite as: 530 So.2d 912, *913) the contract bidding process. Section 120.57 governs all proceedings in which the substantial interests of a party are determined by an agency. FN3. DOT's estimate was not introduced .into evidence. DOT employees testified as to how the estimate was put together but did not explain the actual figures because of the confidentiality of the estimate. See § 337.168, FIa.Stat. (1985) (exempting the official cost estimate from inspection as a public record). FN4. The project was rebid and has since been awarded to another bidder. On appeal, the First District reversed, finding there was competent substantial evidence to support the hearing officer's findings and conclusions, and directed. DOT to enter an order accepting G-W's bid. We quash the opinion below because the hearing officer and the First District applied an incorrect standard of review to DOT's action. Although not required by common law, competitive: bidding.-has been statutorily mandated for the protection of, the public.. In addition to providing a means by which goods or services required by public authorities may be acquired at the lowest possible cost, Hotel China & Glassware Co. v. Board of Public Instruction, 130 So.2d 78, 81 (Fla. 1st DCA 1961); thesystem of ::,competitive bidding protects against collusion, favoritism;-and fraud in the award of public contracts:: Liberty County, 421 So.2d at 507; Wester v. Belote, 103 Fla. 976, 981-82, 138 So. 721, 723-24 (1931). To provide needed flexibility, section 337.11(3), Florida Statutes (1985), gives DOT broad discretion to reject all. bids on competitively bid construction projects: The department may award the proposed work to the lowest responsible bidder; or it may reject all bids and proceed to readvertise the work or otherwise perform the work. (Emphasis added). At the same time, the .public bidding process is governed by the Florida Administrative Procedure Act ("APA"), chapter 120, Florida Statutes (1985), which provides a mechanism by which aggrieved parties may challenge agency decisions Under section l 20.57(1)(b)9 of the APA, an agency must accept the factual determinations of a hearing officer unless those fmdings are not based upon competent substantial evidence. Although these provisions may. appear to be Page 2 at odds, we believe they are harmonious. Initially, we note the strong judicial deference accorded an agency's decision in competitive bidding situations: [A] public body has wide discretion in soliciting and accepting bids for public improvements and its decision, when based on an honest exercise of this discretion, will not be overturned by a court even if it may appear erroneous and even if reasonable persons may disagree. Liberty County, 421 So.2d at 507 (emphasis added). See also Culpepper v. Moore, 40 So.2d 366 (Fla. 1949) William A. Berbusse, Jr., Inc. v. North Broward Hospital Dist., 117 So.2d 550 (Fla. 2d DCA 1960). In Liberty County, we recognized the broad discretion legislatively accorded public agencies and held that an agency's decision based upon an honest exercise of this discretion cannot be overturned absent a finding of "illegality, fraud, oppression or misconduct." 421 So.2d at 507. Liberty County thus established the standard by which an agency's decision on competitive bids for. a public contract should be measured. This standard conforms to the majority view that, where the agency is authorized to reject all bids, judicial intervention to prevent the rejection of a bid should occur only when the purpose or effect of the rejection is ' to defeat the object and integrity of competitive bidding. 10 E. McQuillin, Mu»icipal Corporations § 29.77 (3d ed. 1981); Sea-Land Service, .Inc. v. Brown, 600 F.2d 429 (3d Cir.1979) (only showing of clear illegality will" entitle an aggrieved bidder to judicial relief); John J. Brennan ~'9I4 Const. Corp.. v. City of Shelton, 187 Conn. 695, 448 A.2d l80 (]982) (judicial intervention in an agency's decision to reject all bids is limited to those few occasions where fraud or corruption has influenced the conduct of the officials); Law Brothers Contracting Corp. v. D'Shea, 79 A.D.2d 1075, 435 N.Y.S.2d 812 (1981) (decision to reject all bids because of budgetary, financial, and planning factors had rational basis and should .not be disturbed); Weber. v. Philadelphia, 437 Pa: 179, 262 A.2d 297 (1970) (if municipality, in connection with competitive bidding, is empowered to do so, it may reject any and all bids in the absence of fraud, collusion, bad faith or arbitrary action). [1] Under section 337.11(3), DOT is authorized either to award the contract to the lowest responsible bidder or reject all of the bids. If DOT rejects all bids, no statutory right exists in any bidder to have its bid Copr. ©West 2002 No Claim to Orig. U.S. Govt. Works ,~~°,~, 530 So.2d 912 (Cite as: 530 So.2d 912, *914) accepted. .See E. McQuillin, supra; Charles L. Harney, Inc. v. Durkee, 107 Cal.App.2d 570, 580, 237 P.2d 561, 567-68 (1951); Hotel China & Glassware Co., 130 So.2d at 81. Thus, although the APA provides the procedural mechanism for challenging an agency's decision to award or reject all bids, the scope of the inquiry is limited to whether the purpose of competitive bidding has been subverted. In short, the hearing officer's sole responsibility is to ascertain whether the agency acted fraudulently, arbitrarily, illegally, or dishonestly. [2] The facts here do not justify such a fmding. There was not the slightest evidence of fraud or collusion in the rejection of these bids.. Nor was the rejection shown to be a means of avoiding competition. At most, the hearing officer found that DOT had made an honest mistake in its prebid estimate. Respondent presses upon us, however, that DOT's decision not to accept the hearing officer's "reconstructed" estimate and award the contract to G-W was arbitrary and capricious. We cannot agree. Indeed, respondent concedes that had DOT rejected or deferred the project as "too costly" in light of the bids submitted, it would have been acting within its discretion. In our view, this is exactly what DOT did. We see no significant distinction between deferring the project as "too costly" and rejecting the low bid because it was "too high." Obviously, the anticipated cost of the project approximated the prebid estimate. When the bids revealed the large discrepancy between DOT's estimate and the amounts bid, DOT: was entitled to regroup, reevaluate, redesign, or reject the project. Such a decision, absent bad faith, cannot be deemed arbitrary or capricious. The procedure adopted. by the hearing officer circumvented the very purpose of DOT's prebid estimate. As one court has noted, there are sound practical and public policy reasons for the preparation of prebid estimates by the agency involved. Durkee, 107 Ca1.App.2d at 577, 237 P.2d at 565. In addition to providing a means by which the agency can decide whether adequate funds are available and the project Page 3 desirable at the estimated cost, the estimate provides a yardstick by which to measure the accuracy and fairness of the bids. 107 Cal.App.2d at 577, 237 P.2d at 565-66. This purpose is totally thwarted when the agency's prebid estimate is replaced by the low bidder's after-the-fact estimate. As the court in Durkee noted: When [the director] knows that a fair and accurate- estimate has been prepared by the engineers of his staff before .submitting the project to -bids, he can then determine whether the bid is or is not fair in comparison with that estimate. But when he has no estimate at all, or has an estimate that is admittedly erroneous in major respects, or has an estimate that has been prepared after the bids have been submitted and after his engineers have consulted the work sheets of the bidder, the director has been deprived of the very yardstick given him by law and intended to protect him and.the public. 107 Cal.App.2d at 577, 237 P.2d at 566 In Durkee, the low bidder sought a writ of mandamus to compel the award of a highway construction contract after the highway department rejected all bids. As *915 in this case, the low bid substantially exceeded the prebid estimate and all bids therefore were rejected. As in this case, the estimate was determined to be in error.. In Durkee, notwithstanding that his own engineers conceded their estimate was erroneous, the director of .public works ordered a new estimate and ..rebid the project. In rejecting the low bidder's challenge, the California court found that the director had acted in accordance with his-duty. We likewise find that DOT did not abuse its discretion in rejecting all bids. Accordingly, we quash the ,decision of the district court and remand for ` proceedings consistent with this opinion. It is so ordered. EHRLICH, C.J., and OVERTON, McDONALD, SHAW, GRIMES and I{OGAN, JJ., concur. END OF DOCUMENT Copr. ©West 2002 No Claim to Orig. U.S. Govt. Works ATTACHMENT D APRIL 22, 2002 COMMISSION MEETING ~.,;, April 15, 2002 MEMORANDUM TO: The Honorable Mayor and Members of the City Commission FROM: Jim Han er SUBJECT: City Manag s Report Beach Renourishment; Additional information has come from the Corps of Engineers since the Beach Renourishment Project was last reported to the City Commission. The contractor will have 509 days to complete the river dredging/beach renourishment project and will. be .given a notice to proceed next month. However, work on renourishing the beaches is not expected to begin until February 2003 so as not to conflict with the Sea Turtle nesting season. The sand will be piped onto the beach from an off shore pump-out station. The Corps of Engineers has committed to checking the current elevations of beach sand prior to beginning the beach renourishment and will bring the Level of the beaches up to the design profiles. regardless of how much erosion may have occurred since the plans were originally drafted.. Their opinion is that our beaches are in good shape presently and they are estimating that only 350,000 cubic yards of sand will be used for the renourishment project compared with approximately a million yards used in past projects. Budget for Local Share of Half Cent Sales Tax; When the City Commission adopted the present fiscal year O 1-02 budget, only some of the funds from the Atlantic Beach share of the Better Jacksonville Half Cent Sales Tax were budgeted for the Selva Marina: Streets Project. A balance of approximately $330,000 was set aside by the Commission in case the Core City bids came in over budget.. A list of discretionary capital projects dated July'26, 2001 was considered by the Commission prior to the set aside for the Core City Project. A copy of that list is attached for your review. Would the City Commission want to budget for the current year's funds now that the Core City bids have come in under budget? Sponsorship Donation from AT&T; The City's franchise agreement for cable TV .service requires the franchisee to not only pay a gross fee of 3% but also "an annual sponsorship.. .donation to the City in the amount of $S, DDO... ". The City had not budgeted separately for this amount in the current year anticipating that it would have been consolidated. and collected by the state under the new comprehensive legislation. However, AT&T presented a check to the City in the amount of $5,000. The only active project for which the City is currently. soliciting donations .AGENDA ITEM #9 APRIL 22, 2002 ,..~:, is for the Adele Grage Renovation Project. AT&T's contribution has been deposited into that account. It can be moved to any other project if that is .the desire of the Mayor and Commission. Bikeway Project; The next public meeting for the bikeway/pedestrian path project has been scheduled for Thursday evening, May 2"a at the Sea -Turtle Inn in Atlantic Beach. Participants will be requested to provide feedback on he consolidated map of routes that was developed after the last bikeway meeting. Adele Grage Bathroom Design;. Representatives of the Atlantic Beach Experimental Theater . (ABET)' have requested that the City change the plans for the Adele Grage redesign so as to incorporate restroom facilities-into the "Green Room" originally designed for the project. This addition would create a bathroom that would used solely by the actors. The current plan envisions the actors using the public toilets being constructed in the center of the facility. City staff has requested that ABET pay both for the. redesign work and for the additional cost of adding the restroom facilities from the contractor. The City has now received a $500.00 check from a person affiliated with ABET and will prepare the plans and specifications necessary to incorporate the restroom facilities. After the .plans are. complete, the contractor will be asked for a change order price and ABET will be given the option of paying the additional costs or staying with the current plan. f.\ t List of Discretionary Capital Projects 7/26/0' not. included in proposed budget. Item Price Parks & Recreation Projects New soccer field at Donner Park $17,OOi Howell Park Gazebo $20,OOi Plaza Park, Phase II $45,OOi Park Sinns~ unarade to new design $8,00 AGENDA ITEM #9 APRIL 22, 2002 i iaeviews rroatmg aocK ~o,vv~ Russell Park, additional parking $5.,000 Land Purchase per Rec. Board $100,000 Buli Park restrooms $50,000 Dutton; 2 additional pavilions $40,000. Dutton fishing pier $100,000 Dutton cabin for on-site security $112,000 Skateboard Park $170,000 Water/ Sewer Projects Sewer extensions to unserved areas $500,000 ~`"` Wastewater reuse at AB plant $1,100,000. Other projects Church Rd. extension (50%) $45,000 Town Center extension on Ocean $100,000 New sidewalks/ pedestrian paths $50,000 Funds for tree plantings $10,000 Total $2,502,000 Items without pricing Community Center ? Post Office drive onto Plaza ~ City Hall Expansion ?