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2001-114-Minutes for Meeting March 09,2001 Recorded 3/14/2001VOL: CJ2001 PAGE: 114 RECORDED DOCUMENT STATE OF OREGON COUNTY OF DESCHUTES *CJ2001-114 * Vol -Page Printed: 03/15/2001 15:04:24 DO NOT REMOVE THIS CERTIFICATE (This certificate constitutes a part of the original instrument in accordance with ORS 205.180(2). Removal of this certificate may invalidate this certificate and affect the admissibility of the original instrument into evidence in any legal proceeding.) I hereby certify that the attached instrument was received and duly recorded in Deschutes County records: DATE AND TIME: DOCUMENT TYPE: Mar. 14, 2001; 3:25 p.m. Regular Meeting (CJ) NUMBER OF PAGES: 13 MARY SUE PENHOLLOW DESCHUTES COUNTY CLERK K p u $HE MAR 20 f /�iC&IL MAR 2 9.. 01 f I °A"r 0� s 0 � �1:,, 14. P7 t 3J` 25 1 UutP ? f C' Board of Commissioners 1130 N.W. Harriman St., Bend, Oregon 97701-1947 (541) 388-6570 • Fax (541) 388-4752 www.deschutes.org Tom De Wolf Dennis R. Luke MINUTES OF JOINT MEETING Mike Daly DESCHUTES COUNTY BOARD OF COMMISSIONERS AND DESCHUTES COUNTY FAIR BOARD Friday, March 9, 2001 Present in person were Deschutes County Commissioners Tom De Wolf and Dennis Luke. Also present in person were David Bishop and Lee Smith, Deschutes County Fair Board. Present via conference call were Deschutes County Commissioner Mike Daly, and Deschutes County Fair Board members John Leavitt and Jim Diegel; Fair Board member Don Miltenberger was excused. Other individuals attending were Rick Isham, County Legal Counsel; Dan Despotopulos, Fairgrounds Manager; Barry Durfee of Hooker Creek Ranch; Matt Steele of Hickman -Williams Engineering; and Barney Lerten of bend com and Leon Pattenberg of the Bulletin Newspaper. Chair Tom De Wolf and Fair Board Chair David Bishop opened the emergency joint meeting at I: 35 p.m. Commissioner De Wolf stated that the purpose of the meeting was to discuss the bid award process and the intention of the County regarding the parking lot expansion project at the Deschutes County Fairgrounds and Expo Center. DEWOLF: I will try to explain my understanding of the situation. The Commissioners held a meeting here about ten days ago at which time a vote was taken on the intent to award the bid to Goodfellow Brothers, with the understanding that the roadways would be gravel and the parking areas, where the RVs would actually park, would be cinders. The savings for using cinders for this purpose was about in the mid - $150,000 range less than going with gravel everywhere. Minutes of Joint Meeting Board of County Commissioners and Deschutes County Fair Board Quality Services Performed with Pride Page 1 of 13 Pages Friday, March 9, 2001 DEWOLF: The vote was a split vote, two -to -one, and I'm the swing vote because I don't have any real background in this type of work. I've been trying to rely on the experience and background of Dennis Luke and Mike Daly, and I also talked with Mr. Steele who did a little additional research for me on this material. My decision came down to the fact that this option was less expensive. All the bids exceed our estimates, and we're in a position where we already don't know how we're going to find a resource to pay for this. We don't have a resource identified to repay the money that we have to borrow for that portion of the project. My decision was based on my understanding that maybe this isn't the best material; however, it is an acceptable material. It would save the County taxpayers over $100,000. Subsequent to that, the Fair Board yesterday passed a motion unanimously in opposition to the County's decision to award this. The situation right now is that we have made our intention to award a bid on a two -to -one vote at the County, but we've got a Fair Board that is responsible for the management of the facility, and that is unanimous in its opposition to going with the bid that would include cinders. We've got the manager of the facility, Dan Despotopulos, who also believes that gravel is a better choice than cinders. I understand that the FMCA would prefer gravel to cinders, but they aren't in a position to dictate here. That wasn't part of our contractual arrangement with them. All of the principals are opposed to the idea of cinders in the parking areas. We need to discuss how to move forward. There are two or three options, as I understand it. One is that we leave well enough alone and next Wednesday the bid would be awarded absent any protest to that bid being awarded. If there were a protest, we would of course hold a hearing on that protest. Another option would be that if either Mike Daly or I would change our mind, we could switch to a different bidder, accepting a different option than the option we selected. By selecting an option that is gravel everywhere, the result might be awarding the bid to a different contractor. The third option that I'm aware of would be to reject all bids, in that they all exceed our cost estimate and our budget, and make some modifications that would, I hope, narrow this down a bit and potentially then get a bid that would get us closer to our budget. If anyone else sees any options other than this, now would be the time to bring them up. Minutes of Joint Meeting Page 2 of 13 Pages Board of County Commissioners and Deschutes County Fair Board Friday, March 9, 2001 RICK ISHAM: I am not aware of any other options, except that perhaps you could go ahead and award the bid as intended, and then issue a change order to indicate gravel instead of cinders. You have a low bidder under that scenario that is different than the one you have chosen. I'm not sure I can tell you the legal reasoning behind that; it doesn't make sense to me. You have issued an intent to award in accordance with the contract documents, and cinders were deemed allowable. The one complicating factor in any award is that in order to get these bids within the price that looked acceptable, there's going to have to be subsequent modifications. Some discussion has occurred regarding the rock barriers and the tree nursery. If you reject all of the bids, and you could since they are all over the estimate, there needs to be some discussion regarding grading tolerances or other ways to potentially save money. You could go out for re -bid on a short turn- around basis of perhaps fourteen days; but the outcome is unknown. It may be that you save money, but it's possible it might cost more as well. You could also ask for a total lump sum bid, and define and clarify the choices of work and material. I think the least satisfactory of the three options would be to withdraw the notice of intent, only because of potential concerns regarding improprieties subsequent to issuing the notice. MIKE DALY: I would like to ask David Bishop what lead to the belief that cinders are not an acceptable option. DAVID BISHOP: From my personal experience residing in an area that has cinders is that it is very dirty, dusty and long-term a very problematic type of surface. If we were to ask any Deschutes County taxpayer who had the opportunity to live with gravel or cinders, given a preference there would be no question. As far as the Fair Board's decision, what happened yesterday at the Fair Board's meeting came from a concern about using cinders. Mike Schiel of the Deschutes County Fair Association asked about the decision process and why cinders were chosen, and every Fair Board member stated they did not want cinders and thought that gravel was a far superior covering from a customer standpoint. Minutes of Joint Meeting Page 3 of 13 Pages Board of County Commissioners and Deschutes County Fair Board Friday, March 9, 2001 BISHOP: If you can envision four or five thousand motor homes parked on cinders rather than gravel, you don't get a second chance for a good first impression. This has become a million -dollar plus project, and if we blow it with this major anchor tenant for this type of program, they're not going to come back. It is my belief that it would risk the opportunity for them to sign another contract to come back. DEWOLF: Did Mike Schiel give you his personal feelings or recommendations about this? BISHOP: Unfortunately, as soon as this topic came up and it became clear that the Fair Board was going in one direction, I left the meeting to call the Commissioners; so I didn't hear his opinion first-hand. I called Mike today to clarify what he did say, and he stated that it is his opinion from personal experience about gravel versus cinders that raised his concerns. DEWOLF: Is he speaking for himself, or had he been in contact with the leadership of the Fair Association, and was speaking for them? BISHOP: I don't know. LEE SMITH: I didn't have a feel for that, either. The context of the conversation was not so much regarding personal preference as it was the potential impact that it might have on the members of the FMCA, and the potential loss of return business from them if they found it was not a good experience for them, and they decide not to come back to a cinder parking lot. DEWOLF: My biggest concern right now is that we have about a $1.1 million bid with cinders, and approximately a $1.25 million bid with gravel. One of the difficulties here in having the Fair Board say we should take the gravel option is that it increases the cost by about $150,000 without any resource identified to cover that expense. I'm trying to get to the least cost on this thing somehow. If we can get to the point that, if between Rick ([sham) and Matt (Steele) we could amend the bid documents and allow for the possibility that we could get a better bid, that would be an attractive option to me. I don't think I've heard that yet. Minutes of Joint Meeting Page 4 of 13 Pages Board of County Commissioners and Deschutes County Fair Board Friday, March 9, 2001 BARRY DURFEE: My question is, from the bidding process and being someone who has to deal in that world, did the Fair Board know that cinders were an option at the time of the bid; and, if so, why is this occurring now. Why wasn't that option rejected before this process has gone so far underway? I understand and have knowledge of both cinders and gravel. I would rather park on concrete if cost wasn't an option, but it is an option and the cheapest option for cost is cinders. LUKE: When one of three Commissioners requests that cinders be an option, you would usually go with that. Mike Daly wanted it included. DALY: I've worked many years as a heavy construction contractor, and have used a lot of cinders and gravel on jobs. Frankly, a crushed cinder product is a very good option. It lay down nicely and looks really good when you are done. There are some advantages to cinders. A cinder road will not pothole, when a gravel road will. A cinder road has better drainage. We're only talking two inches of cinders or gravel, which all along in my opinion is not enough anyway. The other thing I am looking at is cost. You have 80 acres of parking lot, 40 acres of which will probably only be used once a year. We're trying to get in for the cheapest possible cost, and in my opinion cinders is the best way to go. This is especially true if you have to go back and add some later, as you're looking at half the cost to add cinders over gravel. Over the long run, cinders will be cheaper. It's a quarter million dollars to add two inches of cinders on eighty acres of ground. The other option is that you can go back in later and put gravel on top of the cinders. Since we're looking at the least expensive way to handle this right now, cinders are the best option as far as the taxpayers are concerned. I really don't think, once you see the cinders laid down, rolled and watered properly, that anyone is going to object to parking on it. It is an option, and the taxpayers will save a whole lot of money by doing it this way. Based on my experience, I really doubt that FMCA is going to refuse to come back because they had to park on cinders. I don't think that's going to happen. To answer Barry's question about the Fair Board, all of our meetings are public meetings and the Fair Board chose not to participate in those meetings. They are published meetings, but perhaps we should have called them as well. Minutes of Joint Meeting Page 5 of 13 Pages Board of County Commissioners and Deschutes County Fair Board Friday, March 9, 2001 DALY: My position is that all of the bidders on this project bid cinders as part of their bid. We awarded it based upon the lowest responsible bid, which is what we were elected to do. At this late date, to try to change things, especially if we change the contractor, may be legal to do, but I don't know how ethical it is. I worry about that. DEWOLF: It is completely ethical if it is the right thing to do. I want to point out that I respect Mike's knowledge and experience in this area, but in talking with a variety of people over the past couple of weeks, there are definitely those who feel differently about this. That's the quandary I find myself in, because I don't have experience in construction. DURFEE: Cinders are the lowest grade of quality and lowest cost product. I will not deny that. Is this a cost issue? Because cinders, in my opinion, are an adequate way to do things. DEWOLF: I would like to know if the Fair Board was aware that using cinders was an option when we started this. LUKE: If you go back to the original Fair Association, you were always going to grind the rock that was on site. Cinders came in at the last. DEWOLF: We also have to recognize that this opinion was incredibly naive, as there was so much rock that had already been taken out. Once the topographical maps were completed and we saw what had really been done out there, it became a whole different scope of work. These were also the same people who had a range of cost somewhere between $100,000 at the low and $400,000 at the high to do all of this. When our lowest bid with all gravel comes in at $1.3 million, it is clear that there is a big discrepancy between what people thought was going to happen and what is reality. Minutes of Joint Meeting Page 6 of 13 Pages Board of County Commissioners and Deschutes County Fair Board Friday, March 9, 2001 DALY: The cinders came up as an option because we all knew that we only had a certain amount of money to work with, and we wanted that option to fall back on in case our bids came in too high. And that's exactly what happened. DEWOLF: Knowing what we now know, I would like to hear from both Rick (Isham) and Matt (Steele) whether there are ways that we can improve our documents here. Maybe it is the type of grading, or maybe there is some rock available from the airport, or other options that would allow us the possibility of having these bids come in better. MATT STEELE: You could increase the tolerances, but you have to be careful what you say. You basically have to say that you will build to specific plans, and grade and sub -grade will be a specific amount. If we make is clear that if they can sub -grade within a half a foot instead of two inches, that could make a huge difference. It might not be quite as smooth. ISHAM: Two inches in ten feet is as good as any parking lot. STEELE: To re -bid, the completion is likely to be July 1 instead of June 1. DALY: The back parking lot is going to be used less. Maybe you could use gravel on the areas closest to the buildings. LUKE: If we choose someone because of the cinders but add back in the gravel, that action can get you in a lawsuit, too. DALY: It would be a change order. I hate to see the project re -bid at this late date. I think it may buy us a lawsuit. ISHAM: If it is in the public interest to do something, it is not subject to protest and should not be overturned, if you have all the factors in place. Minutes of Joint Meeting Page 7 of 13 Pages Board of County Commissioners and Deschutes County Fair Board Friday, March 9, 2001 LUKE: If a motion comes forward to re -bid, there is no need to do it at all unless you take cinders out. We have a bid for cinders. ISHAM: You have issued a valid notice of intent with cinders, so you are set to build the project right now. You could issue a change order for the rock barriers and the tree nursery. DEWOLF: The Fair Board voted to oppose using cinders. Dan Despotopulos, the FMCA and Commissioner Luke prefer gravel. JIM DIEGEL: I'm still here, tracking the conversation, and I agree with what has been explained. JOHN LEAVITT: It all sounds like what happened last night. STEELE: I have cinders myself. Obviously rock is a better product, with twice the life. Cinders works well on driveways and roadways with no heavy traffic. Cinders will break down, but it takes some use. These are very large areas with not that much traffic; nor concentrated traffic. It's not your typical driveway application. DEWOLF: If we can find a compromise for the grade, is there potential for the bid to change significantly? Everything that we are talking about is more than ten percent above our estimate. We also have no financing package in place to pay for it. If we can negotiate with the City regarding the tree nursery, and change the barriers, it may well be a possibility that we get a bid or two within the range we were looking at. LUKE: We could do these with the existing contractor. The only reason to re -bid is if you change the material. ISHAM: The biggest cost area exceeding the estimate is the "unclassified excavation". If the tolerance changes, which is major and is considered a "cardinal change", there are two many changes from the original bid document. Perhaps that single item should have been bid out at lower tolerances. Minutes of Joint Meeting Page 8 of 13 Pages Board of County Commissioners and Deschutes County Fair Board Friday, March 9, 2001 (A general discussion then occurred regarding the work that was recently done by the National Guard.) ISHAM: No pre-bid conference is required, but it is advisable. DEWOLF: We want to have a complete understanding. Do we need another walk-through? STEELE: A walk-through is not necessary, as the contractors should visit the site. If this goes out for re -bid, language will be added and changed. DALY: If the tolerances change to allow for more room to fill in the holes, more gravel may be needed rather than less. I can't see how changing tolerance will save money. STEELE: It's possible that you would need more product, but the general grading might be changed, resulting in more favorable excavation work bids. DALY: It might mean higher rather than lower bids. If you change the tolerances, you might make up for that in the topping. DURFEE: You are both right. If there is a shorter span tolerance, the cost could go up. If it's longer span, there's a possible savings. BISHOP: I would like to ask Mike Daly this. Is it true that any topping would need to be fixed within a couple of years, when we're looking at two inches and four inches would be better? DALY: You could add gravel to the cinders later. Using gravel is a waste of money if it's only two inches deep. Minutes of Joint Meeting Page 9 of 13 Pages Board of County Commissioners and Deschutes County Fair Board Friday, March 9, 2001 BISHOP: What about foot traffic? There's a by-product of tracking cinders into motor homes and buildings. It appears there's likelihood that if the grade tolerances are liberalized it could save money on the most expensive portion of the work. DALY: If you relax the tolerances, you could save money but might end up bringing in more fill material. I can't see where you are going to save a dime by changing the tolerances. I don't see where it is going to make that much difference myself. SMITH: Last fall I suggested that the FMCA not come at all at that point, which would have saved the taxpayers a million bucks. I recall attending a meeting of business people who said that the FMCA coming here could bring in $15 million to the community at each visit of the group. If we are jeopardizing the ability to bring in that money, I don't know why we're doing it at all. BISHOP: There are very few places that can accommodate this group. DALY: Cinders product is used a lot, and is generally very acceptable. LUKE: I feel it is inappropriate. I feel cinders are a poor, last alternative. DALY: I would like to read my position paper to you at this time. This is what I feel about this issue. The bid documents were drafted based on the fact that we needed alternatives in case the bids came in too high. The use of cinders was one of the options. All of the bidders included cinders as an option in their bids. It was determined that the bids using gravel were way above our budget, so we decided on the cinders option. Matt Steel of Hickman -Williams Engineering and Jeff England, engineer for the City of Redmond, were contacted by Commissioner DeWolf. Both agreed that cinders would be an acceptable option on parking lots that were only going to be used occasionally. Minutes of Joint Meeting Page 10 of 13 Pages Board of County Commissioners and Deschutes County Fair Board Friday, March 9, 2001 DALY: The members of the Fair Board had every opportunity - the same as any citizen - to participate in the Commissioners' meetings where all of these decisions were made, and they chose not to participate. Rejecting the bid at this late date may be legal, but I believe it may be unethical. The taxpayers of Deschutes County elected me to represent their interests in this matter. I believe that their interests are served by accepting the lowest responsible bid, which is what we have already done. LUKE: You should not be using the term "unethical". DEWOLF: This is not a decision that is ethical or unethical, one way or the other. BISHOP: You are paid, elected officials. We are an unpaid, volunteer group. Dan Despotopulos didn't know about your meetings, and he should have been there. It's a problem if the Board of County Commissioners makes decisions without the input of the governing Board. I recommend that Dan receive plenty of notice to be involved in the decision- making process. Dan and the Fair Board are different than other department heads. We can't be good partners if we're not invited to participate at meetings that have such long-term impacts. We have all rejected the topping selection. All four attendees unanimously rejected the cinders. We take offense both personally and professionally to your mention of being unethical. DEWOLF: I have a lot of respect for the Fair Board and for Dan, too. The FMCA prefers gravel. All bids exceed our estimate. We need to get a breakdown into the proper price range. ISHAM: You should have the Fair Board give you a recommendation, to get back on track. You are the Board of County Commissioners as well as the contract review board. Minutes of Joint Meeting Page 11 of 13 Pages Board of County Commissioners and Deschutes County Fair Board Friday, March 9, 2001 LEAVITT: All of the options are over budget, and I'd like to see it not go any higher. I never heard previously about cinders, and no one asked for cinders. SMITH: We can reduce the tolerances and use gravel, but there is no guarantee that the cost will come down. Is there any way to negotiate the cost? LUKE: We can do a couple of things. We can leave it as is, take the apparent low bidder and remove the rocks and the nursery from the immediate plans. Or, we can go out for re -bid, to remove the cinders from consideration and re -do the tolerances. BISHOP: The Fair Board could recommend unclassified excavation be done to allow more flexible tolerances. As long as an RV can drive in and off the roadway, be appropriately leveled, and walking is not hazardous, it will work. There may be some dips and valleys, but I believe it could save money. The Fair Board already decided that only gravel is acceptable. I propose that we amend the tolerances, use gravel for the topping, and have an option of two inches of additional gravel. If this requires a re -bid process, so be it. LEAVITT: I agree. (Jim Diegel was lost from the conference call connection at about this time.) SMITH: I don't want to risk losing FMCA's second visit. I still prefer gravel. DEWOLF: We need a firm decision from the Fair Board, and need to deal with other things besides the topping. DALY: If you go out for a re -bid, the cost could end up much higher. LUKE: We have to build these lots. There is no choice. Minutes of Joint Meeting Page 12 of 13 Pages Board of County Commissioners and Deschutes County Fair Board Friday, March 9, 2001 SMITH: I move that we, as the Fair Board, reject all bids, and re -issue a request for bids with the revised tolerances and anything else that can be done to save some money. The use of gravel is to be specified, and the ground cover should be increased to four inches where possible. LEAVITT: Second. VOTE: LEAVITT: Aye. BISHOP: Aye. SMITH: Aye. DEWOLF: I move that the Board of County Commissioners reject all bids, for two reasons. First, all bids exceed ten percent over the allowed estimate; second, two unanimous votes of the Fair Board reject using cinders for ground cover. I further move that we go out for re -bids along the same lines with the required changes, and rescind the notification of intent to award. LUKE: Second. DALY: I still feel this is a mistake. I feel the original decision is the correct one, and I will be voting no. VOTE: LUKE: Aye. DALY: No. DEWOLF: Chair votes yes. DEWOLF: We need to move on this as soon as possible. Representatives from the Fair Board and the Board of County Commissioners need to have a full understanding of the modifications. I want to make it clear that we are not changing this because of mistakes; cost is the primary reason. Board of County Commissioners Chair Tom De Wolf and Fair Board Chair David Bishop adjourned the joint meeting at 3:05 p.m. Respectfully Submitted, Recording Secretary Minutes of Joint Meeting Page 13 of 13 Pages Board of County Commissioners and Deschutes County Fair Board Friday, March 9, 2001