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1992-17025-Minutes for Meeting May 20,1992 Recorded 5/27/199292-1':025 MINUTES 01.18`0075 DESCHUTES COUNTY BOARD OF COMMISSIONERS 092 MAY 27 PM 12:54 May 20, 1992 Chairman Maudlin called the meeting to order at 10:05 a.Q}U K members in attendance were: Dick Maudlin, Tom Throop and Nancy Pope Schlangen. Also present were: Rick Isham, County Counsel; Mike Maier, County Administrator; Larry Rice, Public Works Director; and George Read, Planning Director. 1. CONSENT AGENDA Consent agenda items before the Board were: #1, signature of Resolution 92-036 initiating proceedings to foreclose on real property known as Lower Bridge Estates; #2, signature on contract with Western Advocates, Inc. for Public Opinion Survey. MAUDLIN: Entertain a motion. SCHLANGEN: So moved. THROOP: I'll second the motion. VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES 2. ORDINANCE 92-043 AMENDING TITLE 19 TO ADD PUBLIC BUILDINGS TO LIGHT INDUSTRIAL ZONE Before the Board was signature of Ordinance 92-043 amending Title 19 of the Deschutes County Code, the Bend Urban Growth Boundary Zoning Ordinance, adding public buildings as a permitted use in the Light industrial (IL) zone, and adding a definition for public buildings to include correctional facilities. Chairman Maudlin opened the public hearing. There being no one who wished to testify, the public hearing was closed. SCHLANGEN: I move first and second reading by title only. THROOP: I'll second the motion. VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES PAGE 1 MINUTES: 5-20-92 3. 4. 5. 0118-06'76 Chairman Maudlin performed the first and second readings of Ordinance 92-043. SCHLANGEN: Move adoption. THROOP: Second the motion. VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES ORDER 94-046 FORMING A TRANSPORTATION DISTRICT Before the Board was signature of Order 92-046 initiating the formation of a transportation district within Deschutes County. Since the Board could not take action on this order until all cities within the County had adopted a resolution in support of forming this district, and the City of Bend would not be meeting until that evening, the Board continued action on this order until 8:45 a.m. on Thursday, May 21, 1992, in Chairman Maudlin's office. ACCOUNTS PAYABLE VOUCHER Before the Board were accounts payable vouchers in the amount of $333,282.17. SCHLANGEN: Move approval upon review. THROOP: Second the motion. VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES DISCUSSION OF JAIL SITE Chairman Maudlin said the Board had meet with Greg Brown, Lieutenant, Sheriff's Department regarding the possible purchase of additional land east of the property already purchased by the County for a new jail. It did not meet with the approval of the Board because it didn't provide a proper buffer zone. The property to the north of the jail site, however would enhance the County -owned property. There were still ongoing negotiations for the purchase of that parcel. Commissioner Throop agreed with Chairman Maudlin. Mike Maier asked if the Board wanted to made an offer on the property to the north. Chairman Maudlin said yes, but that the negotiations could not continue beyond 60 days. Mike Maier said the County was limited by the appraisal amount. If they were not willing to accept an offer of the appraisal amount, PAGE 2 MINUTES: 5-20-92 6. 7. M 0118-0577 then the County would use only the parcel it had already purchased. Rick Isham estimated that the County would make the offer this week, and the Board would have the results of that offer to consider at their meeting next Wednesday. OEDD PROJECT COMPLETION REPORT FOR CONSEP MEMBRANES Before the Board was Chair signature on the Oregon Community Development Block Grant Program Project Completion Report and Certification. Mike Burton, project representative from COIC, said this was the closeout report on the block grant for Consep Membranes. Commission Throop asked if Mike Burton saw any reason why OEDD would not closeout this block grant. Mike Burton said he didn't. THROOP: Move Chair signature. SCHLANGEN: Second. VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES ORDER 92-050 BUDGETED CASH TRANSFERS Before the Board was signature of Order 92-050 transferring cash in the amount of $1,358,164 within various funds of the Deschutes County Budget. MAUDLIN: I would entertain a motion for approval upon review of Order 92-050. THROOP: I'll make the motion. SCHLANGEN: Second. VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES RESOLUTION 92-039 TRANSFERRING APPROPRIATIONS Before the Board was signature of Resolution 92-039 transferring appropriations in the amount of $328,250 within various funds of the Deschutes County Budget. SCHLANGEN: Move signature of Resolution 92-039 upon review. THROOP: Second the motion. PAGE 3 MINUTES: 5-20-92 VOTE: THROOP: SCHLANGEN: MAUDLIN: Chairman Maudlin continued Board of Commissioners and Deschutes County Extension 0118-06'78 YES YES YES the meeting of the Deschutes County convened as the Governing Body of the and 4-H Service District. 9. RESOLUTION 92-040 TRANSFERRING APPROPRIATIONS Before the Board was signature of Resolution 92-040 transferring appropriations in the amount of $4,000 within various funds of the Deschutes County Extension & 4-H Service District Budget. SCHLANGEN: Move signature of Resolution 92-040 upon review. THROOP: Second. VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES Chairman Maudlin adjourned the meeting of the governing body of the Deschutes County Extension and 4-H Service District and convened as the Governing Body of the Deschutes County 911 County Service District. 10. RESOLUTION 92-041 TRANSFERRING APPROPRIATIONS Before the Board was signature of Resolution 92-041 transferring appropriations in the amount of $10,000 within various funds of the Deschutes County 911 County Service District Budget. SCHLANGEN: Move signature review. THROOP: Second. VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES of Resolution 92-041 upon Chairman Maudlin adjourned the meeting of the governing body of the Deschutes County 911 County Service District, and reconvened as the Deschutes County Board of Commissioners. PAGE 4 MINUTES: 5-20-92 0118-0679 11. SCHEDULED MEETING TO CONSIDER OPTIONS RESULTING FROM THE DEFEAT OF THE COUNTY TAX BASE The Board decided to meet at 9 a.m. on Tuesday, May 26, with Mike Maier, County Administrator and Rick Isham, County Counsel, to consider the budget options resulting from the defeat of the County tax base. Mike Maier pointed out that the budget approved by the budget committee would be the budget that had to be used for the budget public hearing. However, it would not be the budget which the Board would adopt, since it included the funds requested in the tax base. 12. JEFFERSON COUNTY BILL FOR JUVENILE INCARCERATION IN DESCHUTES COUNTY FACILITY Before the Board was consideration of a request from Jefferson County for help in paying for a Jefferson County juvenile who would be in Deschutes County's detention facility for a considerable amount of time. The Board agreed that they could not charge them a reduced rate since the current rate of $90 a day was less than the actual costs to the County, especially since the defeat of the County tax base. However, Mike Maier suggested, and the Board agreed, that a payment schedule could be spread over a couple of fiscal years, so Jefferson County could budget for these costs. Chairman Maudlin said he would contact Judge Ahern and let him know the Board's decision. Chairman Maudlin continued the meeting until the 11:00 a.m. hearing. Chairman maudlin reconvened the meeting at 11:00 a.m. 11. LIQUID ASPHALT BIDS Before the Board was a hearing to consider whether to reject the recent liquid asphalt bids. Rick Isham said the Public Works Department issued specifications for two types of liquid asphalt products. There was an oral modification which was discussed with one of the bidders (Albina Fuel) which resulted in Albina Fuel submitting a bid with several alternatives including the oral modification. However, no written change order was issued nor was the bid opening extended, therefore there were bids submitted which were not in accordance with the specifications as written. The Public Works Director made a recommendation to the Board that due to this confusion, the bids be rejected and the project be rebid. He said today's hearing was at the request of Morgan Emultech Inc. Larry Rice said he had given Mr. Purdee, attorney for Morgan Emultech, a copy of his memo to the Board. He said supplying PAGE 5 MINUTES: 5-20-92 0118-0680 liquid asphalt to the County did not require prequalifications, unlike contracts for construction which required either state or local approval of contractors. Therefore, there was no intent in this process to not qualify someone, and all bidders were deemed to be qualified. He said it was his error when he proposed to Albina Fuel that as long as the State Highway Division accepted a substitute product, that the County could also, when the specifications clearly stated that any changes would take five days so that the other bidders could be notified and allowed to bid the same new product. For a variety of reasons, he recommended that the Board reject all bids and rebid the project. One of the reasons was that he would like the new asphalt product to be eligible for bid, since he felt it was as good as or better than the other products. And, he felt the cost of the new product would be less than the other products, thereby saving the County money. The new product was a standard product in the state specifications but was not included in the County's specifications, and he felt it should be. Another reason he wanted to rebid the project was so the specifications could be changed to include language on penalties. It was not unusual for some firms to deliver a load or two of material which was not in accordance with specifications. Samples would be taken to the state lab, however the results would not be ready until the material had already been used. The County's current specifications indicated that the County would reserve the right until receipt of laboratory test results, to reject any and all loads. It was assumed that when the County rejected a load there would be no payment for the load, however he felt the language should be clarified to spell out the penalty. Chairman Maudlin asked what this had to do with the issue under discussion at this hearing. Mr. Rice said the Morgan Emultech firm had been shown, through ODOT lab reports, to have had frequent loads which were out of specification. He was concerned that if the County rejected a load and the company did not get paid, Morgan Emultech would appeal the full price rejection. He wanted to change the specifications, so that before bids were made, every bidder would clearly know what the penalty would be. Larry Rice went on to say there were other areas where the specifications were deficient. For example, when an asphalt provider was late in bringing the material to the site, the County had costs of $400 a hour, however there was nothing in the specifications to allow the County to recover those costs. Likewise, if the County delayed the delivery trucks, there was nothing in the specifications to cover reimbursement of the asphalt provider. He suggested the specifications be redone to clearly identify those kinds of situations. PAGE 6 MINUTES: 5-20-92 0118-0681 Commissioner Schlangen asked if these issues were considered in his original recommendation to reject the bids. Larry Rice said all of these reasons were not included in his first memo because he hadn't foreseen that the issue would end up in a hearing, and therefore didn't go into that much detail. Bill Purdee, an attorney from Medford representing Morgan Emultech, said that Alan Clum of Emultech was also in attendance. He asked what this hearing was intended to determine. Rick Isham said it was to determine whether to award or reject the bids. Mr. Purdee pointed out that all of the issues presented by Mr. Rice were known before the bid. The statute required "good cause" to reject all bids, and he understood that meant something "unexpected" which could not have been foreseen. Prior to this bid, there was some discussion about the possibility of charges for lateness, and Public Works had indicated they might issue an addendum concerning that issue. He objected to the memorandum from Mr. Rice which called into question Morgan Emultech's passing of tests. There was nothing in the memo regarding the other bidders, which he felt indicated Mr. Rice was not acting in good faith. The memo raised new issues regarding the qualification of Morgan Emultech, and which they had not had an opportunity to respond. They felt like they were getting "bushwhacked." When they asked Public Works why all bids were rejected, they received a letter from Tom Blust, County Engineer, stating it was due to irregularities in the bidding procedure. Then he received a letter from Larry Rice stating it was because there were new items which the County wanted in the contract. Then today they were raising qualification questions. He did not feel this met the standards of "good cause." Rick Isham asked Mr. Purdee if he was requesting additional time to respond to the ODOT letter. Mr. Purdee said no. Larry Rice said that in his opening remarks he had said there was no intent to indicate that Morgan Emultech was not qualified, and, in fact, the County had assumed they were qualified. Mr. Purdee said they did not need any additional time, they just wanted to point out that how the process was handled was not fair. He didn't feel it was fair to bring in a letter discussing qualifications and then to state that qualifications were not an issue. This just added to their feeling that the result of the bid was not what the County wanted, so the County found reasons to rebid the project. He pointed out that this was the same bidding procedure which was used last year. PAGE 7 MINUTES: 5-20-92 0118-0682 Commissioner Throop asked Mr. Purdee what he would expect to happen if the product which was delivered did not meet specifications. Mr. Purdee said he would expect the County to exercise all of its contractual remedies. He hadn't really looked at that issue, because he had just heard about it this morning when he received the memo from Mr. Rice. He assumed the County had the right to withhold payment, and then the burden would be on Morgan Emultech to ask the County for payment if they felt they had justification. He asked when this new product was first approved by ODOT. Someone in the audience said in 1991. Mr. Purdee felt it was not that new of a product, and certainly not new since the bids were made. Chairman Maudlin said this Board had never intended to be contentious or unfair with any bidder. Before being advised by Counsel to hold this hearing, the Board chose to reject the bids because it was in the public interest to do so. The Board understood that through a telephone call, a better product was allowed to be bid. He had asked the Public Works Director if the other bidders had been notified and allowed to bid on this new product. They had not. The Board felt that if one business had been allowed to bid this new product, every business should have the same opportunity. So in fairness to everyone, he had recommended rejecting all bids, and then asking for rebids to include the new product. He felt most of the other issues didn't have any bearing on the Board's decision, and could be taken care of the next time the specifications were rewritten. Bob Davis, manager of Albina Asphalt, said they didn't have a five-day interval to bid the new product, so he called Larry Rice and asked if he could submit a bid on the new product. Therefore, they bid the standard product out of their Portland facility and the new product out of their Madras facility which included a significant freight differential. The new product had been equalized to the State for some time. They were preapproved products, and he had submitted the names of public agencies who had used this product. Kyle McBride, territory manager of Chevron, said they bid according to the specifications. Chairman Maudlin asked if the County had allowed bidding on this new product, if Chevron would have bid it. Mr. McBride said no, they did not manufacture "high floats" in Oregon; however, it might have affected the way they had bid CRS -2. Rick Isham asked if the specifications had asked exclusively for "high floats" if that would have precluded them from bidding. Mr. McBride said no since they could invest in facilities to manufacture that product. Mr. Isham asked if they would do that for just one contract. Mr. McBride said no, and they didn't feel that "high floats" in this area performed as well as the standard material. PAGE 8 MINUTES: 5-20-92 0118-0683 Mr. Isham asked Morgan Emultech if they would have been excluded from bidding had "high floats" been the only product in the specifications. Alan Clum with Morgan Emultech said the "high float" material was a patented material. He could probably make an HFE 90, but he couldn't combine that with the 91s, so he'd have to ask for a modification in the specifications. Commissioner Throop asked what Mr. Clum thought was funny during the Chevron testimony. Alan Clum said he was agreeing with Mr. McBride that the CRS and CRS -2P material was better than the "high float" material as a specification. Bob Davis said they had worked throughout Oregon and Washington on various state projects and County projects with both types of materials. The new product had been proven to the state lab through a number of successful test results. He said they were a licensee but another supplier could make a like material to meet those specifications. It was not a proprietary product. Mr. Purdee said in response to Chairman Maudlin's explanation, that he was not suggesting that the reasons given for changing the contract were inappropriate. It was only a matter of timing. If all bids had been rejected before they were opened, it would have been alright. But once they were opened, the process broke down. Chairman Maudlin said that if the bids had not been opened, the Board would never had been aware that there had been a phone call made agreeing that one business could bid a product while no one else was notified. Mr. Purdee said the Public Works staff had been aware of it. Chairman Maudlin pointed out that the Board was ultimately responsible. Larry Rice said they did not try to exclude bidders, so they would not have submitted a specification for an exclusive product. They would have a specification which would include products which had been approved by ODOT for these purposes, and the bidders could then bid on any of the approved products. Rick Isham said the standard was that the rejection of bids had to be in the public interest, and it was up to the Board to make that decision. He felt Mr. Purdee's argument was there was a standard which was accepted statewide and had been used by the County before, and then the County created its own difficulty. So why should a business who participated in the bidding process be denied their profit on the contract. On the other side. If there was possibly a superior product which could provide a better benefit to the public, the public should not be denied use of that product because of an inadvertence on the part of the County. PAGE 9 MINUTES: 5-20-92 0118-0684 Commissioner Throop said he didn't feel the Board had any alternative but to award the bid. However, he wanted to make it extremely clear that if the product did not meet the specifications, the County would not pay for it. Chairman Maudlin agreed that the County probably erred in this case. THROOP: That we award the bid as originally determined to Morgan Emultech Inc. SCHLANGEN: I'll second. VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES DATED this ,�?96�day of , 1992, by the Board of Commissioners of Deschutes County, eg . AT T Recording Secretary PAGE 10 MINUTES: 5-20-92