OCTOBER 28, 2011



THE SPECIAL CITY COUNCIL MEETING of the City of Port Orange was called to order by Mayor Allen Green at 5:08 p.m.


Pledge of Allegiance


Silent Invocation


Roll Call:††††††††††††††††††††††††††††††† Present: ††††††† ††††††††††† Councilman Bob Ford

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† ††††††††††† Councilman Donald Burnette

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† ††††††††††† ††††††††††† Councilman Bob Pohlmann

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† ††††††††††† Vice Mayor Dennis Kennedy

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† ††††††††††† ††††††††††† Mayor Allen Green


Also Present:††††††††††† Kenneth W. Parker, City Manager†††††††††††

††††††††††††††††††††††† ††††††††††† Margaret T. Roberts, City Attorney

Joyce Dombrowski, City Clerkís Office†††




4.†††††††† Second Reading of Ordinance 2011-23 Granting Exclusive Franchise for Collection and Disposal of Solid Waste, Yard Waste and Recyclable Materials


The start of the meeting was delayed for each Council Member to have a chance to meet with the City Attorney privately.† Margaret Roberts, City Attorney, advised the audience that she wanted on record that she asked the Council Members to meet with her privately so they would have the opportunity to ask her any questions they may have prior to this meeting.† She stated she advised the Council Members that the City requested an extension of the contract with Veolia based upon documents being delivered late this day for the Councilís consideration.† Veolia has not agreed to the extension.† The City has a bond that protects the citizens and guarantees waste pick-up Tuesday morning.† She asked the Council to consider instructing the City Manager to commence the process of entering into a temporary agreement for the collection of garbage on Tuesday morning with Waste Pro and to call in the bid bond for that purpose.† Mayor Green asked what time frame the temporary agreement would be for.† Ms. Roberts stated the Council can specify any reasonable time period they desire.†

There are three issues to be decided:† the two recommendations she just provided, the continuance of Ordinance 2011-23, and the continuance of the award of a Solid Waste Contract (item 5 on this agenda).†

Motion made by Councilman Burnette, seconded by Vice Mayor Kennedy, to continue the award of a contract to date certain of December 6, 2011, to continue Ordinance 2011-23 to December 6, 2011, to call the bid bond, and to authorize the City Manager to enter into a temporary contract until December 6, 2011 with Waste Pro for waste removal.†


Council Member discussion of the motion:

Councilman Ford:† Another option is to say we have been unable to achieve a contract acceptable to both parties and to ask the City Manager go to the second bidder, the lowest bidder, Waste Pro, to see if a contract can be negotiated with them.† Ms. Roberts said that would need to be an additional motion.†


Motion made by Councilman Ford, seconded by Vice Mayor Kennedy, amend the previous motion to include authorizing the City Manager to enter into negotiations with Waste Pro on a new contract in accordance with Waste Proís original bid documents.†


Council Member discussions on this amendment to the main motion:† None.


Public discussions on this amendment to the main motion:†


Jim Morris, attorney on behalf of Waste Pro asked the Council Members to approve this amendment and to be advised that they are ready to take over the temporary operation prior to a contract and are willing and able to negotiate a contract promptly if staff is authorized to negotiate with them.†


Doug Daniels, attorney for Veolia, stated the City made the right choice with Veolia originally, and that CNG is the future.† The problem, the only change to the original contract, is Veolia can no longer guarantee they can locate within Port Orange.† The reason is their bid was based upon locating in South Daytona, which would require minimal site work. And that is what the Council accepted.† Later, the City changed the location requirements to Port Orange.† Veolia started negotiating on the Zuber property and both the City and Veolia thought the property was comparable to the property in South Daytona in ways such as normal site work.† The City decided this would be a Change of Use for the property.† This change required paving, site improvements, stormwater retention, and obtaining St. Johnís River Water Management District permits.† He stated this would cost $400,000 to $500,000 and takes time.† This was not what they bid on.† He stated they are still talking to the City Manager in attempts to find a suitable location in Port Orange but they are running out of time.† He believes they can still meet the March 31st deadline if they can use the property in South Daytona and sign the contract tonight.† If, in the next few days, they can find a location in Port Orange that will work they will take it.† The contract does offer the fueling of City vehicles even if they locate their site in South Daytona.† Mr. Daniels said they have a deal based on the bid and its acceptance by the City Commission.† Mr. Daniels said at the Cityís encouragement, and he might say with at the Cityís instigation or insistence, Veolia has incurred obligations close to $8 Million.† That will need to be recouped in some way.† That is based upon having been awarded the contract and trying to move forward with the contract.† He said Waste Pro has offered to buy Veoliaís trucks in an effort to mitigate the $8 Million in damages.† He said they are not able to do that and there will be litigation, big city litigation, big city attorney litigation, expensive litigation, with Waste Pro and no judge will say it is proper to have entered into a deal with Waste Pro to have sold them the trucks.† Mr. Daniels said they violated the Cone of Silence.† They changed their bid and should have been thrown out.† He feels it is illegal for them to even be in the running.† Veolia asks the Council to vote down this motion and to enter into a motion to enter into the contract with Veolia and to strike the obligation to locate in Port Orange with the understanding they will do their best to locate in Port Orange.† The decision must be made in the next few days in order to meet the March 31st deadline. Mayor Green asked if the Council Members or Ms. Roberts had any questions for Mr. Daniels:† None.


Ms. Roberts stated if the motion passes she wants to respond to the comments Mr. Daniels just made.†


Mayor Green asked for additional comments from the public.† Ted Noftall stated he is a resident and businessman in Port Orange and stated this needs to be taken care of tonight.† He stated with this proposal the City has the 4th highest garbage rates in the County. The City should find a lower cost garbage alternative such as the Waste Pro proposal at $1.2 million.† Jim Suter stated he represents Veolia and wanted to tell the Council the $1.2 million is a misnomer; itís actually the difference between the first year residential rate of the two proposals and doesnít take into consideration the commercial rate, which Veoliaís were lower.† The CNG brings quite a few benefits to the City, not only environmentally but also economically.† He quoted a study by John Shelley, City Finance Director, stating that over time the disparity in the pricing starts to shrink based on the fact of the pricing of CNG and diesel.† He asks the Council Members to vote this amendment down.† Bob Hyres, Executive Vice President Corporate Secretary for Waste Pro, commented that the original deadline wasnít March 31st, it was December 31st, and they did bid on providing a lot of new trucks as it was a major bid requirement but did not bid on trucks they could not receive on time to meet the RFP.† He doesnít think CNG should be a part of this discussion but that it is an industry move, a move for Waste Management, Republic Industries, a move for Veolia, and a move for Waste Pro.† It is a lower priced fuel and almost all garbage fleets will be going that route within two or three years.† They have the trucks and personnel ready to go.† Mark Applegate, resident of 820 Pheasant Run Court West, said looking at CNG is whatís best for the community in the long term.† He suggests the City develop and run the CNG station so the City will profit by it.† There are many companies in the City who will benefit from this resource.† CNG should be removed from the waste discussions.† Bruce Howard, Veolia site manager for Port Orange, stated bettering the environment is important but he feels this should be about service.† Levels of service should be considered when looking at different citiesí costs.† Port Orange gets a higher level of service than some of the communities that pay less.† Peter Contos, employee for Veolia, said CNG would be great for workers and that he gives his best to this city.


Additional comments from Council on the amendment to the motion made by Councilman Ford:† None.†


Ms. Roberts clarified that this vote pertains only to adding an amendment to the initial motion to advise the City Manager to begin negotiating a contract with Waste Pro.


Roll call vote on Councilman Fordís motion to amend the original motion to include instructing the City Manager to begin contract negotiations with Waste Pro: Councilman Ford- yes. Councilman Burnette- no.† Councilman Pohlmann-no.† Vice Mayor Kennedy- no.† Mayor Green- yes.† Motion to amend initial motion defeated 3-2.††


Ms. Roberts addressed comments made previously in the meeting.† The bid bond required Veolia to enter into a contract with the City in accordance with bids by October 31, 2011.† This had been extended an additional 30 days.† Veolia had agreed to and signed a contract and had provided the required bond.† As of today they have taken it back.† There is not a written document that Staff or Council has been able to see within a reasonable amount of time before this meeting.† Ms. Roberts said neither she nor the City Manager can recommend the Council act on the offer that has been presented today.† The Council has not been given the opportunity to work with an extension, which was a reasonable request, to review the document.†


Councilman Kennedy remarked the 45 day extension simply covers allowing Waste Pro to pick up the garbage and gives the City the opportunity to look at alternates but does not commit the City to anything and that in this motion, the Council is acknowledging that Veoliaís original bid is null.† Ms. Roberts said by calling the bid bond the City is saying Veolia failed to enter into a contract and the bid bond money is needed to pay the bill to continue garbage pick-up.† Vice Mayor Kennedy stated he understands what Councilman Ford was asking and he believes they do need to look at what he asked but does not know if it should be included in part of the main motion.† He would prefer it be addressed separately.†† Councilman Pohlmann asked what happens after 45 days.† Ms. Roberts said a contract will be needed for solid waste.† She cannot predict if Veolia will negotiate at that time or if the Council will need to go to the second bidder.† Councilman Burnette stated he was prepared to defend his vote for Veolia.† He received the new contract at 2:30 this afternoon and has not had a chance to read the document.† He will not vote or motion a vote for a contract he has not had a chance to read.† Mayor Green asked for verification that there is no contract with Veolia.†† Ms. Roberts stated that is correct- there is no contract signed by both parties and there has not been an agreement or extension agreed to by both parties.† Councilman Ford said prices of CNG and any other fuels are unpredictable.† The City needs a garbage contract and he is willing to go forward with the main motion.† Mayor Green asked if there are any additional comments on the motion that is on the floor.† There were none.†


Roll call vote on motion made by Councilman Burnette, seconded by Vice Mayor Kennedy, to continue the contract to date certain of December 6, 2011, to continue Ordinance 2011-23 to December 6, 2011, to call the bid bond, and to authorize the City Manager to enter into a temporary contract until December 6, 2011 with Waste Pro for waste removal: Motion approved 5-0 by roll call vote.†

Ms. Roberts asked for the Councilís consensus to have the City Attorney and City Manager come back after they have had a reasonable amount of time to put together what their options are for the next step.† Mayor Green asked if there needs to be a meeting Monday.† Mr. Parker said there needs to be a meeting to approve the emergency contract.† The Board agreed to meet Monday, October 31, 2011 at 4:30 p.m.† A discussion ensued regarding having Council authorize the City Attorney and the City Manager to enter into an emergency contract under the original Waste Pro bid proposal terms and documents on their behalf without needing a meeting.†


Mr. Morris asked to speak.† Waste Proís offer for immediate start up is conditioned upon also having an agreement to begin negotiations for a permanent contract.† Waste Pro is immediately ready to reach an emergency contract and to reach a permanent contract.† Waste Pro will strictly adhere to their bid as it was made.† Waste Pro is ready to move forward with immediate service if Councilmember Fordís amendment is approved.† Waste Pro will specifically and completely comply with every bid component that Council has.† Mr. Morris said as a condition of a permanent contract, on behalf of Waste Pro he tendered an indemnity agreement to defend the City as related to the bid award claims.† Bob Hyres said Waste Pro needs a commitment that they will be able to begin to negotiate with the City for a permanent contract.


Mr. Daniels stated Veolia was ready to sign a contract on July 12th when the Council selected them as the best bidder.† At that time all Veolia needed was the date changed from October 1st to December 31st.† He stated all the supplemental conditions and dragging out has been over things the City wanted.† He stated the situation is that he cannot get in touch with the people at Veolia that would make the decision to extend the contract this late on a Friday afternoon.† The City needs to take into consideration the amount of money Veolia has spent and committed to spend trying to get this moving.† Mr. Daniels apologized for changing the contract on such short notice and stated Veolia did not think the City would be surprised that they wanted to change the location requirements due to the problems with the Zuber site and the time constraints.


Councilman Pohlmann asked for a reconsideration of his vote on Councilman Fordís motion to amend the original motion to include allowing the City Manager and City Attorney to begin negotiations with Waste Pro for a permanent contract.†


Motion made by Councilman Pohlmann, seconded by Councilman Burnette, to reconsider the vote on Councilman Fordís amendment (referred to as item 5 during discussions) to the main motion.† Motion to reconsider approved by roll call vote 5-0.†††


Mr. Parker repeated the main motion that was passed was to continue the award of the contract to date certain of December 6, 2011, to continue Ordinance 2011-23 to December 6, to call the bid bond, and to authorize the City Manager to enter into a temporary contract until December 6, 2011 with Waste Pro for waste removal.† Those items still stand.† A separate motion needs to be made to authorize City Manager and City Attorney to begin negotiations with Waste Pro for a permanent contract.† Councilman Pohlmann and Councilman Burnette withdrew their motion and second regarding reconsidering the vote on Councilman Fordís amendment.† A new motion was then presented:† †



Motion made by Vice Mayor Kennedy, seconded by Councilman Pohlmann, to authorize the City Manager and City Attorney to enter into negotiations with Waste Pro for a permanent contract in accordance with Waste Proís original bid documents. Motion carried 5-0 by roll call vote.† †


† †††††††

5.†††††††† Approval of Solid Waste Contract- continued to December 6, 2011.


C.††††††† ADJOURNMENT †- Meeting was adjourned at 6:15 p.m.





††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† __________________________

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Mayor Allen Green





Kenneth W. Parker, City Manager