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HomeMy WebLinkAboutcocc_council_mtg_minutes_20220621CAPE CANAVERAL CITY COUNCIL REGULAR MEETING City Hall Council Chambers 100 Polk Avenue, Cape Canaveral, Florida 32920 Hybrid Meeting via GoToWebinar Tuesday June 21, 2022 6:00 p.m. MINUTES CALL TO ORDER: The Chair called the Meeting to Order at 6:06 p.m. Council Member Raymond led the Pledge of Allegiance. ROLL CALL: Council Members Present: Council Member Mayor Pro Tem Mayor Council Member Council Member Kim Davis Mickie Kellum Wes Morrison Angela Raymond Don Willis Others Present: City Manager City Attorney City Clerk Administrative/Financial Services Director Capital Projects Director Community and Economic Development Director Human Resources/Risk Management Director Leisure Services/Community Affairs Director Public Works Services Director Projects/Parks Administrator Lead Maintenance Specialist/City Arborist Deputy City Clerk Executive Assistant to the City Manager/Office Manager Brevard County Sheriff's Office Lieutenant Brevard County Sheriff's Office Sergeant Brevard County Sheriff's Deputy Todd Morley Anthony Garganese Mia Goforth John DeLeo Jeff Ratliff Dave Dickey Melinda Huser Molly Thomas Jim Moore Gustavo Vergara Tim Davis Daniel LeFever Lisa Day Scott Molyneaux Jason Knepp Joshua Chamberlain PUBLIC PARTICIPATION: John Bond, property and business owner, discussed property blight and support for fast -tracking mixed -use zoning in the City. Bill Hodge, property owner, discussed opposition to the Florida Department of Transportation (FDOT) State Road (SR) A1A Roundabout Project in the City, support for Council to vote on the matter, and requested a non -biased survey. Mayor Morrison requested a progress update, including any workshops, between now and the next City Council Meeting from Staff. City Manager Morley confirmed Staff will request the information from FDOT. John Benton discussed a request for a code reduction hearing. Patrick Campbell, resident, requested information related to the outcomes of meetings between the FDOT and local condominium and homeowner associations related to the SR A1A Roundabout City of Cape Canaveral, Florida City Council Regular Meeting • June 21, 2022 Minutes • Page 2 of 6 Project, what the City will do to take the pulse of the rest of the City regarding the Roundabout, and inquired if the City will develop a position on the matter. Mayor Morrison reminded Mr. Campbell that Council requested an update at the next City Council Meeting. CONSENT AGENDA: Council Member Willis removed Item 2. Mayor Pro Tem Kellum removed Item 6. 1. Approve the May 17, 2022 Regular City Council Meeting Minutes. 2. Approve the City Council's March 30, 2022 Strategic Planning Retreat and April 21, 2022 Workshop Meeting Minutes. 3. Appoint Resilience Engineering Services Manager Lexi Miller as the City's Representative on the Space Coast Transportation Planning Organization Technical Advisory Committee. 4. Award Bid for rehabilitation of Lift Station No. 5 to Hinterland Group in the amount of $473,880 and authorize City Manager to execute Construction Agreement for same. 5. Approve the 2022 City Council Regular and Budget Meeting Schedule, as amended. 6. Approve removal of Specimen Oak Tree from Canaveral City Park and approve mitigation plan at a ratio of one-to-one. A motion was made by Council Member Willis, seconded by Council Member Raymond, to approve Consent Agenda Items 1, 3, 4 and 5. The motion carried 5-0. #2 Discussion ensued regarding the March 30, 2022 Strategic Planning Retreat Meeting Minutes page 4 of 6, under Review of Future Goals & Projects by Department, and thanks to Capital Projects Staff for efforts to gain an exemption through the Florida Department of Environmental Protection which saved the City from spending $14M on a Deep Injection Well project. A motion was made by Council Member Willis, seconded by Council Member Davis, to adopt Item 2. The motion carried 5-0. #6 Discussion ensued and included details regarding the reason for removal of the Specimen Oak Tree from Canaveral City Park, Allen Engineering Letter of Intent and the error made by not removing the tree prior to construction, City Arborist assessment of the tree, examples of Oak Trees buckling pedways at Manatee Sanctuary Park, and daily clean-up and water quality impacts to the Splash Pad should the tree remain where it is. City Manager Morley discussed regret over the possibility of losing the tree, and took responsibility for the Item. Discussion continued regarding lessons learned, desire to explore saving the tree, possible installation of an underground structure to make the roots turn or other alternatives. Morgan Hamby, resident, discussed favor for saving the tree. Brad Pervell, resident, discussed the prior successful effort to save the trees on the East side of the Park, and suggested outlining the baseball outfield with Crepe Myrtles. Ginny Dirschka, property owner, discussed the resilience of Oak trees and suggested giving the tree a chance to survive before removing it. Lead Maintenance Specialist/City Arborist Tim Davis discussed the Oak tree's chances of survival, root damage, how the roots of the tree are spread over/under the area of the Splash Pad, and how salt and soil composition effect trees such as the twenty-five year old Oaks at Cape View Elementary, which are much smaller in diameter than this Oak tree. Discussion continued regarding removing versus saving the tree, unknown impacts of cost for implementing an underground root barrier, unknown long-term repair costs to the Splash Pad if the tree stays, safety prioritization, and investment in larger replacement trees. A motion was made by Mayor Pro Tem Kellum, seconded by Council Member Raymond, to let Staff investigate costs for saving the Oak tree and bring the Item back to Council if needed. Discussion ensued regarding how the Splash Pad would not be City of Cape Canaveral, Florida City Council Regular Meeting • June 21, 2022 Minutes • Page 3 of 6 delayed either way, and the multiple interpretations and added details to Mayor Pro Tem Kellum's original motion. Mayor Pro Tem Kellum agreed to allow Mayor Morrison to re -state the original motion. A motion was made by Mayor Pro Tem Kellum, seconded by Council Member Raymond, to explore alternatives to save the tree, allow the City Manager to make the decision, whether to save or remove it, and communicate that decision to Council. Mayor Morrison explained Council is trying to give City Manager Morley the ability to move quickly without having to bring the Item back to Council. Mr. Pervell expressed confidence the City will make the right decision either way, and requested the six replacement trees to be planted in Canaveral City Park. City Manager Morley stated Mr. Pervell's idea to place trees along the outfield is a great idea. Projects/Parks Administrator Vergara indicated landscaping at the Park is not finished and more trees will be planted. Arlyn DeBlauw, resident, inquired about holding the contractor responsible. City Manager Morley explained how that argument would be very hard to make due to the Construction/Manager At -Risk Contract in place, which means that the City would end up paying for it anyway. The motion carried 5-0. PUBLIC HEARING: 7. Ordinance No. 05-2022; providing for a Referendum and Ballot Language for the November 8, 2022 General Election or an election scheduled thereafter; proposing to amend Section 2.02 of the City Charter regarding eligibility to serve on the City Council to provide that City Council Members must be domiciled within the City of Cape Canaveral at least one (1) year immediately prior to qualifying and must remain domiciled within the City of Cape Canaveral during their term in office or forfeit their office; providing for a notice of the City of Cape Canaveral Charter Referendum Question; providing for coordination with the Supervisor of Elections; providing for administration of the Referendum by the City Clerk and City Manager; providing for severability and an effective date, second reading: City Attorney Garganese read the title into the record and explained the Item. The Public Hearing was opened. Patrick Campbell, resident, inquired if this action would solve the problem regarding the clerical error contained in last year's Candidate Packet that indicated those running for City Council, must be a resident for one year in the City. City Attorney Garganese confirmed that the amendment incorporating this provision of a one (1) year domicile requirement in the City Charter would solve that problem. The Public Hearing was closed. A motion was made by Mayor Pro Tem Kellum, seconded by Council Member Willis, to adopt Ordinance No. 05-2022, at second reading. The motion carried 5-0. 8. Based on the May 5, 2022 City of Cape Canaveral Wastewater Revenue Sufficiency Analysis completed by Raftelis Financial Consultants, Inc., the following action is recommended by City Staff: Resolution No. 2022-13; revising the City's Sanitary Sewer Service Fee Schedule in accordance with Article III of Chapter 78 of the City Code for Fiscal Years 2022/2023 through 2026/2027; providing for the repeal of prior inconsistent resolutions; incorporation into Appendix B, Schedule of Fees; severability and an effective date: Mayor Morrison read the title into the record. City Manager Morley explained the purpose of the Item and how the action is taken every five years with exception to last year due to the COVID-19 Pandemic. Discussion ensued and included the purpose of using a resolution versus an ordinance to adopt the Fee Schedule, provisions in both the City Charter and Code for use of either resolution or ordinance, City Attorney Garganese' prepared Draft Ordinance should Council decide to use it out of an abundance of caution, the City's history of using a resolution to revise the City's Sanitary Sewer Service Fee, providing the public two hearings instead of one, the rate increase would be effective October 1, 2022, how rate studies and increases are critical to keep pace with City's operations, City of Cape Canaveral, Florida City Council Regular Meeting • June 21, 2022 Minutes • Page 4 of 6 and desire to adopt by resolution. Council reached consensus to take action by Ordinance. City Attorney Garganese read the title of Draft Ordinance No. XX-2022 (attached) into the record, indicating an ordinance number would be assigned for second reading. A motion was made by Mayor Pro Tem Kellum, seconded by Council Member Raymond, to approve Draft Ordinance No. XX-2022, as written, at first reading. The Public Hearing was opened. Brad Pervell, resident, discussed the need to increase prices, and suggested charging short-term rental properties to offset rates for citizens. Shannon Roberts, resident, discussed concerns regarding cost of living and manageability of the Sewer Rate increases, and suggested the City consider alternative ways to obtain funding to offset the costs for residents. The Public Hearing was closed. Raftelis Financial Consultants, Inc. Manager Joe Williams discussed the Study, this type of increase will happen due to the City being built out, potential cost savings in the latter years, and how a number of utilities have adjustments connected to the Consumer Price Index. Discussion ensued and included comparisons with local/coastal cities, impracticality of annual studies, study cost of $18,000, chemical costs increasing, comparing data next year, how the non-proprietary study model can be adjusted, concern over passing things five years out, and desire to cut costs due to potential economic crises. Administrative/Financial Services Director DeLeo discussed the positive financial outlook for the City including low interest rate loans, less future debt and the Presidential Streets Project funding through the Community Redevelopment Agency budget along with matching funds from Brevard County. Discussion ensued and included the use of American Rescue Plan Act funds, the City's sewer usage structure connected to the City of Cocoa water usage and sewer, and support for using the Study to make adjustments annually. City Attorney Garganese discussed the procedural requirements for sewer rate change notices to be placed in the water bill. Administrative/Financial Services Director DeLeo discussed how, if Council chooses to do it annually, the analysis would be done each May prior to the Proposed Budget in June, and the City must notify the City of Cocoa of any changes sixty days prior. City Manager Morley suggested Council could make an amendment to the motion to add a provision to Ordinance XX-2022, at second reading, which allows for the annual review in the month of May each year for the next four years. Mayor Pro Tem Kellum agreed. A motion was made by Mayor Pro Tem Kellum, seconded by Council Member Raymond, to amend the main motion, to do a yearly review in May. The motion carried 5-0. Discussion ensued regarding the main motion on the floor. The main motion carried 3-2, with Mayor Morrison and Council Member Willis voting against. Mayor Morrison recessed the meeting at 8:30 p.m. The meeting reconvened at 8:41 p.m. ITEM FOR ACTION: 9. Review and approve March 30, 2022 Strategic Planning Retreat Minutes, Workshop Minutes and Draft Summary Report; authorizing/finalizing revisions to Mission, Vision and Values Statements and possible revisions/updates; adopt Report setting short, intermediate and long-term strategic goals beginning Fiscal Year 2022/23: City Manager Morley thanked Strategic Government Resources Consultant Doug Thomas for providing the Report. Mr. Thomas made a presentation to Council. City Manager Morley clarified how the Mission Statement has already been adopted as part of the City's Strategic Planning, but the final Report and the Vision Statement are what Council is considering. Discussion ensued and included accepting the Report, waiting to approve the Vision Statement, circulation of the Vision Statement for feedback from the community, the City's 60th Anniversary in 2022, and making modifications to the Vision Statement. Council reached consensus to bring the Vision Statement back to Council for consideration at the October 2022 Regular City Council Meeting. A motion was made by Council Member Willis, seconded by Council Member Raymond, to accept the draft Report. Shannon Roberts, resident, discussed concerns regarding the issue of safety missing in the City of Cape Canaveral, Florida City Council Regular Meeting • June 21, 2022 Minutes• Page5of6 Visioning, connecting the Budget to implementation planning for actionable items that came out of the Strategic Planning, and the balance of private property rights with the Vision of the residents. Discussion ensued and included the Budget and Capital Improvement Planning process. City Manager Morley stated that' the Development Review, Planning and Zoning and other Advisory Boards will access the Re -Visioning Project Report to ensure the connection to implementation and planning is made. Mr. Thomas discussed the connection between the Strategic Plan Pillars, Statements, and implementation, indicating that the Plan can take three to four years to come together. The motion carried 5-0. 10. Ratify the Composite City Manager Performance Evaluation and discuss/determine how to proceed with the provisions of Section 2, Salary and Evaluation, of the Employment Agreement between the City of Cape Canaveral and City Manager Todd Morley: Human Resources/Risk Management Director Huser discussed the evaluation process, the pay analysis based on data retrieved from other cities not including allowances or benefits, and the recommended increase in order to remain competitive with other municipalities. Discussion ensued and included years of experience as a variable, City Manager Morley having been with the City since 2002, similar size cities, population variables, City Manager Morley's current salary, monthly automobile allowance and other incentives, splitting the raise in half and revisit in six months, and how much of an increase in pay City Manager Morley should receive. Administrative/Financial Services Director DeLeo suggested Council vote on either a percentage or an hourly rate plus the automobile allowance. Discussion continued regarding percentage pay options for the City Manager, City Manager versus City Staff pay and retention, excellent performance of the City Manager and Staff, concerns regarding the Budget overall, the proposed 2022/2023 FY Budget which includes a three -percent merit increase, an internal cost of living increase and an annual wage adjustment to offset the impacts of the Florida minimum wage laws which will keep the City competitive with other municipalities, and City Manager Morley's direction to Staff to ensure all City employees receive equitable pay. A motion was made by Council Member Raymond, seconded by Council Member Davis, for an 11 % raise increase for City Manager Todd Morley. Discussion ensued regarding amending the City Manager Contract to reflect the increase, how Council should vote on the measure, with an effective date being today. The motion carried 4-1, with Mayor Morrison voting against. City Manager Morley thanked Council. 11. Designate one (1) City Official to be the Voting Delegate at the Florida League of Cities 2022 Annual Conference scheduled for August 11-13, 2022 in Hollywood, Florida and decide if it wishes to propose resolution(s) for the League's consideration: A motion was made by Council Member Davis, seconded by Mayor Pro Tem Kellum, designating Angela Raymond to serve. Mayor Morrison inquired if Council Member Raymond would serve, to which Council Member Raymond responded in the affirmative. The motion carried 5-0. 12. Approve Proposals from OVIVO USA, LLC/TSC-Jacobs North in the amount of $1,430,153 for the in -kind replacement of two clarifiers at the Water Reclamation Facility, and a 15% contingency of $214,522.95 for any necessary inspection/repair services required by CROM for the clarifier tanks, and authorize the City Manager to execute the Equipment Purchase Agreement with OVIVO and Equipment Installation Agreement with TSC-Jacobs North: Mayor Morrison requested City Attorney Garganese' opinion on whether the City satisfied the requirements for sole -source for the Agenda Item. City Attorney Garganese discussed the City Attorney's Guidance provided in the Agenda Item for Council to consider including the technical basis for determining the reasons for use of sole -source which Staff recommends for in -kind replacement of two clarifiers versus going out for Bid, the City's plan to use American Rescue Plan Act (ARPA) funds to pay for the Project prompting his advice to follow the federal sole -source City of Cape Canaveral, Florida City Council Regular Meeting • June 21, 2022 Minutes • Page 6 of 6 purchasing rules as a guide, and encouraged Council to listen to the technical experts on Staff. A motion was made by Council Member Willis, seconded by Council Member Davis, to extend the Meeting fifteen minutes. The motion carried 5-0. Mayor Morrison opened public comment. Patrick Campbell, resident, discussed two emails (attached) sent to Staff and Council regarding the Item, his public records request for which he was provided an estimate of fees not yet paid for, concern the City has not met criteria for sole -source based upon reasons included in the email sent to Council and Staff at 5:41 p.m. on June 21, 2022, a federal watchdog group, and his intent to file a complaint against the City which would prevent the City from moving forward with the Project. Discussion ensued and included concerns over Staff safety while having to work with the clarifier system as it is now, the $4,000/month maintenance costs, and desire to move forward with Staff's proposal. Public Works Services Director Moore confirmed the broken arm of the clarifier is an emergency, places the City at risk for being out of compliance with Florida Department of Environmental Protection and explained why. Discussion ensued regarding justification for using ARPA funds and the requirements related to sole -source versus competitive bid on the local, state and federal levels. Mayor Morrison read directly from Patrick Campbell's email attachment sent to Council and Staff at 5:41 p.m. Discussion continue regarding differences between the May and June Agenda Items, whether the Item meets the criteria, delaying could result in a failure of the clarifiers, Public Works Services Director Moore's decades of experience in working on wastewater plants, and the City citizens desire to fix infrastructure. City Attorney Garganese recommended the City competitively bid the Project based upon the record from this and last month's City Council Meetings, stated he has not seen any email from Mr. Campbell, and urged Council to not delay the action due to the fact the system is falling apart. Discussion ensued on the costs, the necessity to replace the clarifiers, and the potential cost of being out of compliance could be approximately $7M dollars. Administrative/Financial Services Director DeLeo stated he would verify the use of ARPA funds. City Attorney Garganese advised Council that the competitive bid process is an administrative function and will not go to Council. Council reached consensus to take no action on the Item. 13. Provide direction to Staff on the Proposal from Kimley-Horn and Associates, Inc. in the amount of $28,500 for the completion of an engineering traffic study, and if needed, authorize the City Manager to execute same: Council reached consensus to bring the Item back at the July Regular City Council Meeting under Old Business. ITEM FOR DISCUSSION: 14. Rising Rents. (Submitted by Council Member Raymond): Council reached consensus to bring the Item back at the July Regular City Council Meeting under Old Business. REPORTS: None. ADJOURNMENT: The Meeting was adjourned at 10:57 p.m. Wes Morrison, Mayor Mia Goforth; City Clerk dp C_ :An Q Attachment to the Minutes of the June 21, 2022 City Council Regular Meeting ORDINANCE NO. -2022 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CAPE CANAVERAL, BREVARD COUNTY, FLORIDA; REVISING THE CITY'S SANITARY SEWER SERVICE FEE SCHEDULE IN ACCORDANCE WITH ARTICLE III OF CHAPTER 78 OF THE CITY CODE FOR CITY FISCAL YEARS 2022/2023 THROUGH 2026/2027; PROVIDING FOR RATIFICATION OF SEWER RATES FOR SEWER CUSTOMERS; PROVIDING FOR THE REPEAL OF PRIOR INCONSISTENT ORDINANCES AND RESOLUTIONS; INCORPORATION INTO APPENDIX B, SCHEDULE OF FEES; SEVERABILITY AND AN EFFECTIVE DATE. WHEREAS, the City is granted authority under Section 2(b), Article VIII, of the State Constitution to exercise any power for municipal purposes, except when expressly prohibited by law, and WHEREAS, Article II of Chapter 78 of the Cape Canaveral Code of Ordinances establishes the City's sanitary sewer system; and WHEREAS, Article III of Chapter 78 establishes the service rates, deposits and billing procedures for the City's sanitary sewer customers; and WHEREAS, section 180.13(2), Florida Statutes, provides that the City Council may establish just and equitable rates or charges to be paid to the City for the use of utilities by each person, firm or corporation whose premises are served thereby; and WHEREAS, section 78-152 of the Code of Ordinances requires that all revisions to sanitary sewer rates be approved by the City Council; and WHEREAS, Raftelis Financial Consultants, Inc. recently completed a Sewer System Rate Study dated May 2022 ("the Study"), which includes findings, conclusions, recommendations and supporting analyses related to the City's sanitary sewer rates; and WHEREAS, based on the recommendations of the Study, the City Council desires to revise the fees and charges related to its sanitary sewer system; and WHEREAS, after careful consideration and deliberation, and after considering the Study, the City Council deems it is in the best interests of the public health, safety and welfare of its citizens to update and revise the City's sanitary sewer system rates and charges as set forth herein, which rates are hereby found to be just and equitable. NOW, THEREFORE, BE IT DULY ADOPTED BY THE CITY COUNCIL OF THE CITY OF CAPE CANAVERAL, BREVARD COUNTY, FLORIDA, AS FOLLOWS: Section 1. Recitals. The foregoing recitals are hereby deemed true and correct and are hereby fully incorporated herein by this reference as a material part of this Ordinance. City of Cape Canaveral Ordinance No. -2022 Page 1 of 4 Attachment to the Minutes of the June 21, 2022 City Council Regular Meeting Section 2. Amendment to Appendix B, Schedule of Fees, Related to Sanitary Sewer Service Rates. The City Council of the City of Cape Canaveral hereby adopts the following amendments to the Cape Canaveral Code of Ordinances, Appendix B, Schedule of Fees (underlined type indicates additions to and strikethrough type indicates deletions from the existing text in Appendix B): APPENDIX B — SCHEDULE OF FEES *** CHAPTER 78. UTILITIES *** Article 111. Service Rates, Deposits and Billing Procedures *** (b) Schedule of fees. *** (B) Schedule of Rates: 2016/17 2017/18 2018/19 2019/20 2020/2021 2022/23 2023/24 2024/25 2025/26 2026/27 Customer Charge per Bill All Classes $2.50 $2.69 $2.83 $2.98 $3.06 Readiness to Serve Charge per ERU Single -Family Commercial $19.15 $21.07 $22.66 $23.80 $24.99 $25.62 $23.95 $26.35 $28.33 $30.75 .36 $31.24 $32.03 City of Cape Canaveral Ordinance No. -2022 Page 2 of 4 Attachment to the Minutes of the June 21, 2022 City Council Regular Meeting Public Buildings 1. $19.15 $21.07 $22.66 $23.80 $24.99 $25.62 User Rate per 1,000 gallons Single -Family Commercial Public Buildings $6.88 $7.40 $7.77 $8.16 $8.37 $8.57 $9.22 $9.69 $10.18 $10.44 $6.88 $7.40 $7.77 $8.16 $8.37 Sewer Flat Rate Multifamily Per residential unit $32.82 $36.11 $38.82 $40.77 $42.81 $43.89 *** Section 3. Incorporation into Appendix B, Schedule of Fees. The fee schedule set forth in this Ordinance shall be incorporated into Appendix B, Schedule of Fees, to the Cape Canaveral Code of Ordinances and any section, paragraph number, letter or heading in Appendix B may be changed or modified as necessary to effectuate the foregoing. Grammatical, typographical and like errors may be corrected and additions, alterations and omissions, not affecting the construction or meaning of this Ordinance and the City Code, may be freely made. Section 4. Ratification of Previous Rates; Repeal of Prior Inconsistent Ordinances and Resolutions. All prior sewer rates and charges amended herein are hereby ratified as duly adopted and imposed. In addition, all prior inconsistent ordinances and resolutions adopted by the City Council, or prior ordinances or resolutions in conflict herewith, are hereby repealed to the extent of the conflict. Section 5. Severability. If any section, subsection, sentence, clause, phrase, word or portion of this Ordinance is for any reason held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and such holding shall not affect the validity of the remaining portions of this Ordinance. City of Cape Canaveral Ordinance No. -2022 Page 3 of 4 Attachment to the Minutes of the June 21, 2022 City Council Regular Meeting Section 6. Effective Date. This Ordinance shall become effective immediately upon adoption by the City Council of the City of Cape Canaveral, Florida. The rates established under this Ordinance for City fiscal year 2022/2023 shall be deemed effective on October 1, 2022. ADOPTED at a Regular Meeting of the City Council of the City of Cape Canaveral, Florida, assembled this day of , 2022. ATTEST: Mia Goforth, CMC, City Clerk Approved as to legal form and sufficiency For the City of Cape Canaveral only by: Anthony A. Garganese, City Attorney First Reading: June 21, 2022 Advertisement: Final Reading: Wes Morrison, Mayor Name FOR AGAINST Kim Davis Mickie Kellum Wes Morrison Angela Raymond Don Willis City of Cape Canaveral Ordinance No. -2022 Page 4 of 4 Attachment to the Minutes of the June 21, 2022 City Council Regular Meeting From: Patrick CFL To: Cute Clerk Cc: Todd Morflev; Wes Morrison Subject: Public comment council meeting 6/21/2033 Date: Tuesday, June 21, 2022 11:03:41 AM Warning -This email originated outside the City of Cape Canaveral mail system. Please review the sender's address. Report any suspicious mail by using the Phishalert button in Outlook. If that is not possible forward the suspicious mail to phishalert@cityofcapecanaveral.org I would like to speak on line to the Ovivo sole source agenda item. I am opposed to sole source and that the City has not met the requirements to use sole source for this project. Sent from my iPhone Florida has a very broad public records law. As a result, any written communication created or received by the City of Cape Canaveral officials and employees will be made available to the public and/or media upon request, unless otherwise exempt. Under Florida Law, email addresses are public records. If you do not want your email address released in response to a public -records request, do not send electronic email to this entity. Instead, contact our office by phone or in writing. Attachment to the Minutes of the June 21, 2022 City Council Regular Meeting Mia Goforth From: Sent: To: Cc: Subject: Attachments: Patrick Campbell <patrickcampbell@cfl.rr.com> Tuesday, June 21, 2022 5:41 PM Wes Morrison; Mickie Kellum; Don Willis; Angela Raymond; Kim Davis; Todd Morley Mia Goforth Citizen Complaint, Sole Source, clarifies at the WWTP 6/21/2022 Sole Source Complaint to the City of Cape Canaveral.pdf lithattonton-This email originated outside the City of Cape Canaveral mail system. Please review the sender's address. Report any suspicious mail by using the Phishalert button in Outlook. If that is not possible forward the suspicious mail to phishalert@cityofcapecanaveral.org Please include this as public record for the 6/21/2022 City Council meeting. I will reference this document in my public comments. Patrick Campbell 307 Surf Drive Cape Canaveral, FL 32920 Virus -free. www avast com Florida has a very broad public records law. As a result, any written communication created or received by the City of Cape Canaveral officials and employees will be made available to the public and/or media upon request, unless otherwise exempt. Under Florida Law, email addresses are public records. If you do not want your email address released in response to a public -records request, do not send electronic email to this entity. Instead, contact our office by phone or in writing. i Attachment to the Minutes of the June 21, 2022 City Council Regular Meeting Mr. Mayor, Please consider this a formal complaint concerning my objection to the attempt to sole source work to Ovivo, clarifiers at the Waste Water Treatment Plant. First, the use of sole -source is intended to be rare and infrequent, not routine and predominate. All of the laws and regulations are in place to discourage sole sourcing and reduce the too frequent manifestation of favoritism, fraud, and corruption that competitive bidding seeks to prevent and sole sourcing can facilitate. I believe in this case and possibly others, the City is abusing the sole source criteria. My feelings on this particular push to sole source work to Ovivo has indicators of a "catch me if you can" tactic by City management to first, just blow it by the Council with the assumption that the majority would feel as Council Member Angela Raymond articulated, generally trust the City Staff and no need to ask any questions of process. Thank you, Mr. Mayor, for your focus on not just the process, but the foundation of the City Manager/Council form of municipal government adopted by the people of Cape Canaveral in our Charter. The City must cease this practice of avoiding the rigor of the procurement process and then, when questioned, put a story together. The amount of work that went into back in to an answer should have been applied to being compliant. I intend to file a complaint through the Federal Hotline link below, and I suggest the City Council make a motion and seek an independent audit of the City procurement processes. https://www.pandemicoversight.gov Supporting my point that the city is retroactively backing into a justification for sole source, I offer the following facts: • The change in words from the original agenda summary sheet written by the City Staff which used the word "rehabilitation" and the new summary sheet no longer uses that word. Instead, it uses "in -kind replacement" or omits the use of the word "rehab" or "rehabilitation" entirely. • Lack of explanation for these cardinal changes in the between the May and June agendas including the injection of "in -kind replacement" in the description • The Ovivo Proposal did not use the word "rehabilitation" for the project. It used the word "replacement" which conflicts with the city documents. • The new proposal from Ovivo removed the project on the cover page and the use of the word "replacement" as well as other changes in the proposal such as the "Buy American Requirements." • The injection of a Sole Supplier letter in the proposal from Ovivo. • The lack of explanation, relevance or demonstration of understanding for the conflicting reference to Ovivo's Sole Supplier letter and the City's reference as Sole Source letter • Unsubstantiated and biased reference that it will cost two times as much or take much longer for someone else to do it. When Staff was asked by the Mayor, they stated that no information/data was ever gathered to support these claims. No written justification was provided in the original proposal and agenda item. Attachment to the Minutes of the June 21, 2022 City Council Regular Meeting • The original proposal from Ovivo was changed in several sections compared to the new proposal with no explanation. For example, the DELIVERY section on the proposal stated that Ovivo needed the city (Purchaser) to submit drawings. However, the new proposal states that Ovivo (Seller) will submit drawings. • The after the fact request for City Attorney for guidance. • The after the fact request to Tetra Tech for a Technical Memorandum The failure of the City to demonstrate and meet the procurement requirements for the use of ARPA funds including Sole Source in the utilization of ARPA funds, defined in the CFR. When local jurisdiction uses federal funds to pay for supplies or services. • Federal regulations require a local jurisdiction to apply state and local procurement laws for federally funded procurements, provided that the procurements also conform to federal law and regulations. See 2 C.F.R. § 200.317-318. • Federal procurement laws and regulations typically require that the City use a fair, open and competitive process, see, e.g., 2 C.F.R. § 200.319-320 which describes the competitive processes required for procurements made with federal funds. From the Department of Treasury • Procurement, Suspension & Debarment. Recipients are responsible for ensuring that any procurement using SLFRF funds, or payments under procurement contracts using such funds, are consistent with the procurement standards set forth in the Uniform Guidance at 2 CFR 200.317 through 2 CFR 200.327, as applicable. The Uniform Guidance establishes in 2 CFR 200.319 that all procurement transactions for property or services must be conducted in a manner providing full and open competition, consistent with standards outlined in 2 CFR 200.320, which allows for non-competitive procurements only in certain circumstances. • Recipients must have and use documented procurement procedures that are consistent with the standards outlined in 2 CFR Coronavirus State and Local Fiscal Recovery Funds Compliance and Reporting Guidance 10 200.317 through 2 CFR 200.320. The Uniform Guidance, pursuant to 2 CFR 180, requires an infrastructure for competitive bidding and contractor oversight, including maintaining written standards of conduct and prohibitions on dealing with suspended or debarred parties. Your organization must ensure adherence to all applicable local, State, and federal procurement laws and regulations. Methods of procurement to be followed from the ARPA Noncompetitive procurement. There are specific circumstances in which noncompetitive procurement can be used. Noncompetitive procurement can only be awarded if one or more of the following circumstances apply: (1) The acquisition of property or services, the aggregate dollar amount of which does not exceed the micro -purchase threshold (see paragraph (a)(1) of this section); (2) The item is available only from a single source; Attachment to the Minutes of the June 21, 2022 City Council Regular Meeting (3) The public exigency or emergency for the requirement will not permit a delay resulting from publicizing a competitive solicitation; (4) The Federal awarding agency or pass -through entity expressly authorizes a noncompetitive procurement in response to a written request from the non -Federal entity; or (5) After solicitation of a number of sources, competition is determined inadequate. Rather than evaluate the specific CFR requirement for ARPS funds, the city provided a Competition in Contracting Act ( CICA)(41U. S. C. 253) reference, adding misdirection, unnecessary, irrelevant and confusing complexity. 4. Because the City is planning to use federal ARPA funds to pay for the project and there is very little legal authority in Florida regarding the use of sole -source by municipalities, it would be instructive and perhaps advisable to use federal sole -source purchasing rules as a guide to support a sole —source purchase. For example, the Competition in Contracting Act ( CICA)(41 U. S. C. 253) was passed into law in 1984 by Congress as a foundation for the Federal Acquisition Regulation ( FAR) and to foster competition and reduce costs for government contracts. FAR 6. 302. 1, which is titled " Only one responsible source and no other supplies or services will satisfy agency requirements," provides a number of justifications for sole source acquisitions. For example, the following justifications among others, may be relevant here: 1. The source has previously developed or produced a major system or highly specialized equipment (or major components), and award to any other source would likely create either: A. Substantial duplication of cost that the government could not expect to recover through competition; or B. Unacceptable delays in meeting agency requirements; OR 11. The source provides the only products that are compatible or interchangeable with existing equipment; OR 111. The source is the only supplier whose product or service does not create unacceptable technical risks; OR IV. The source provides unique supplies or services for the agency' s minimum needs; OR V. The source is the only vendor available because the agency lacks sufficient information in time to develop technical specifications for a competitive procurement; OR VI. The source has rights in data, patents, or secret processes, or the control of basic raw materials, such that the supplies or services are available only from that source. The systems in question, the clarifiers, have been in use for years and should be well understood by now, they are not technically complex or unique. A Sole Source procurement is one in which only one vendor can supply the commodities, technology and/or perform the services required by an agency. Procurement by this method must be documented by an explanation of: (i) the unique nature of the requirement; Attachment to the Minutes of the June 21, 2022 City Council Regular Meeting (ii) the basis upon which it was determined that there is only one known vendor able to meet the need, i.e., the steps taken to identify potential competitors; and (iii) the basis upon which the agency determined the cost to be reasonable, i.e., a "fair market price" that could be anticipated had normal competitive conditions existed, and how that conclusion was reached. There are many suppliers of this kind of service including complete retrofits, parts and materials. The City contends Ovivo must be used because they own the original drawings and specifications. It seems to me that someone must have been furnished the requirements for the clarifiers to be installed in the first place. I will also add that if the City is not requiring operations manuals, as built drawings, maintenance plans and spare parts recommendations on system turn -over, there are additional issues that need to be looked into. A great deal of time was spent in the May meeting tossing around an illogical attempt at explaining the Sole Source to Ovivo using cars and engine blocks. I will continue that theme with a relevant Sole Source example using engines: The United States Coast Guard tried to justify sole -sourcing of the engine for its standard lifeboats on the fact that the boats had been designed for the particular engine. For any other engine, the lifeboats would have to be redesigned, and the lack of standardization among them would increase maintenance expenses. In 5 Comptroller General 963, 1926 U. S. Comp. Gen. LEXIS 254 (Jun. 7, 1926), these arguments were rejected. The Comptroller General explained: The facts of record do not disclose ... that the particular engines ... are the only engines that will in fact answer the purposes for which they are required.... [E]xperience with a particular engine does not justify excluding bidders offering other makes of engines. Such a course would result in establishing permanently but one make of machinery or equipment without giving trial to possible improvements through other makes.... [W]hat is needed is not an engine of a particular make but an engine that will meet certain performance requirements of the United States Coast Guard Service.... [I]n the purchase of such equipment, bids should be requested on specifications drawn not by designation of a particular make, nor to cover mechanical construction of the engine, but to show the dimensions of the boat, the space available for installation, the conditions under which it is to be operated, and the performance requirements necessary to meet the needs of the Government, etc... . Meeting the City's requirements for the function of the clarifiers does not include a requirement that the material, sub -systems components, parts and configuration be Ovivo. For the June meeting the City is now claiming sole source because the time to develop specifications and solicit bids will increase costs and will cause unacceptable delays. The question now is, how did the City get into a position that a critical asset or assets come to end of life and end of functionality at essentially the same time and the asset management plan did not provide sufficient forecasting to prevent an unplanned emergency expenditure of 1.6 million dollars? Attachment to the Minutes of the June 21, 2022 City Council Regular Meeting What if the ARPA funds were not available? The City should not rely on Federal funds to make up for the deficiencies in the management of our infrastructure. Was this pending disaster discussed at the Strategic Planning Retreat — FY 2022/ 2023 Goals? And last, because City management likes the League of Cities I provide this - National League of Cities - Developing a Procurement Instrument. Depending on state and local requirements, cities can then develop a scope and select a procurement instrument. In many cases this will be a request for proposals (RFP) or a request for qualifications (RFQ). For construction procurement, the Federal guidelines say that a request for competitive sealed bids is preferred. In some cases, the local government may decide to utilize an existing contract or join a co-operating purchasing agreement. However, these mechanisms become more complicated when using federal funds due to federal requirements for competitive bidding of all federal dollars. City of Cape Canaveral, Florida DRAFT • Strategic Planning Retreat — FY 2022/ 2023 Goals • March 30, 2022 • Minutes • Page 3 of 6 o Water Reclamation Facility Effluent/ Influent Disc and Drum Filter Installations being behind schedule due to supply chain issues, Long Point Road Estuary Park experiencing delays with the St. Johns River Water Management District permitting process, Oak Lane Improvements progress and the close - to -complete nature of the Water Reclamation Facility' s Supervisory Control and Data Acquisition System. Discussion regarding the listed projects ensued and included environmental impacts, projected costs, stormwater and drainage benefits and concerns, no planned sidewalks on Oak Lane, status of the Stormwater Master Plan, possible usage of American Rescue Plan Act and/ or grant funding for some of the projects, and how budgets are adjusted when projects are not completed as scheduled or planned.