City Council

CITY OF FREDERICKSBURG, VIRGINIA HON. THOMAS J. TOMZAK, MAYOR HON. MARY KATHERINE GREENLAW, VICE MAYOR CITY COUNCIL HON. KERRY P. DEVINE, AT-LARGE HON. BRADFORD C. ELLIS, WARD ONE HON. GEORGE C. SOLLEY, WARD TWO HON. FREDERIC N. HOWE, III, WARD THREE Council Chambers, 715 Princess Anne Street HON. BEATRICE R. PAOLUCCI, WARD FOUR Fredericksburg, Virginia 22401 Council Work Session April 12, 2011 Courthouse and Court Facilities The Council of the City of Fredericksburg, Virginia held a work session on Tuesday, April 12, 2011, beginning at 5:30 p.m. in City Hall Conference Room. Council Present. Mayor Thomas J. Tomzak, Presiding. Vice-Mayor Mary Katherine Greenlaw. Councilors Kerry P. Devine, Bradford C. Ellis, Frederic N. Howe, III, Beatrice R. Paolucci and George C. Solley. Also Present. City Manager Beverly R. Cameron, Assistant City Manager Mark Whitley, City Attorney Kathleen Dooley, Parks, Recreation and Public Facilities Director Robert Antozzi and Clerk of Council Tonya B. Lacey. Others Present. Warren Walker, ARCADIS and Elizabeth Lerch, ARCADIS. Courthouse and Court Facilities – City Attorney Dooley explained the purposed of the closed session. The purpose was to consider the confidential report prepared by the City’s consultant ARCADIS. The report is an evaluation of conceptual proposals submitted under the Public-Private Educational Facilities Infrastructure Act (PPEA) Request for Proposals (RFP) under the Virginia Code Section 2.2-3711(A)(28) to discuss or consider memoranda, staff evaluations, or other records prepared for evaluation and negotiation of proposals on the courthouse and court facilities submitted under the PPEA. The City Attorney submitted a resolution that documented the determining basis of the ARCADIS report. The report was considered confidential based on the bargaining or negotiations involved and because the release of the report before an award of interim or comprehensive agreement would affect the bargaining and City Attorney Dooley thought both were present with the report. (See attached Resolution). The reason for the resolution is that the City Attorney believes the report would reveal analysis by the consultant of the relative strengths and 1 weaknesses of the various proposals. She explained that this could cause problems during the negotiations, stating that if you were a proposer with a relatively strong proposal compared to your competitor, you would be less likely to give on any important points of negotiations. Another reason for the closed session was that City Council may or may not agree with the consultant’s recommendations and may refine the recommendations through discussion and decide on something different from ARCADIS. City Attorney Dooley said to release a preliminary recommendation would confuse the process. She also noted that ARCADIS was not advising on public policy considerations. She recommended the adoption of the resolution because the public body must determine in writing that the ARCADIS report is confidential and states the basis for it. City Attorney Dooley stated that Council had used closed sessions for PPEA’s in the past. In July 2004, Council held a closed session on the Parking Deck using the same code. Councilor Solley moved approval of Resolution 11-24 documenting the basis for determining that the ARCADIS Evaluation of PPEA Courthouse Proposals, if made public prior to the execution of a comprehensive agreement, would adversely affect the financial interest or bargaining position of the City; motion was seconded by Councilor Devine. Councilor Howe was in disagreement with the closed session. He believed the documents was a taxpayer paid document and that all should be disclosed, except for anything that would cause Council to lose negotiating power and the things that do not protect the confidentiality of any of the presenters. He explained that Council had moved forward with a public forum and all the proposers presented their information including confidential information in front of their competitors. He said the document is an analysis of what the PPEA proposals did in comparison to each other. He felt the public should be privy to the same information the Council is privy to, so they can make informed decisions. He said the strengths and weaknesses were disclosed by all parties, prices were disclosed, and land deals were all disclosed at the public forum. Councilor Howe said this is a public process and it needs to have transparency. He requested that the items that were strictly closed session be stripped out of the document. Mr. Howe stated he would be voting against the closed session and he cited Virginia Code Section 2.2-3712(D) Any member of the public body who believes that there was a departure from the requirements of clauses (i) and (ii), shall so state prior to the vote, indicating the substance of the departure that, in his judgment, has taken place. The statement shall be recorded in the minutes of the public body. Mr. Howe said he believed two 2 sets of documents should be provided one for the public and one with the confidential information for closed session. Councilor Ellis stated that it was disheartening that ARCADIS included the confidential financial information in the document. He also agreed that there should have been two separate documents. Councilor Paolucci also agreed that there should have been two documents provided. She also added that she had a problem with the line in the resolution that says “Review of Conceptual Proposals exclusively for the evaluation and negotiations”. She said she did not think Council was in the negotiation process. City Attorney Dooley said that Council was in negotiating or bargaining process when the RFP was issued. She explained that Council was in the contract formation period, which is the period between the RFP and award of contract and everything in between asking for the proposals and awarding contracts is the negotiation stage. The report includes confidential proprietary information and evaluation of all factors and should be kept confidential because it may influence how Council votes and it reveals strengths and weaknesses which can unlevel the playing field and adversely affect the bargaining position with the design build teams. Councilor Solley stated that it’s not just the financials that make the report confidential. There are other items such as the proprietary information and the evaluations of each group and if this information is pulled the document would not make sense. He also stated that he did not see how this could be considered keeping relevant information from the public. He said Council will be more informed because of the document and will be better able to make decisions. Mayor Tomzak stated that the same steps were taken during the parking deck project. City Attorney Dooley reminded Council that their notes were confidential during the process, but will be made public once the process is complete. She said it’s the same for all the reports that are prepared except for the proprietary portion. Vice-Mayor Greenlaw said Council owes it to the public to make the best decision and deal possible and if the information is released it would weaken negotiations if the information is made public at this stage. She said Council needs to be informed enough to have an intelligent public discussion and informed enough to negotiate with the teams. 3  Mayor Tomzak stated that the local government was different from the federal government. The Federal government allows lobbying and he said the City cannot open itself up to lobbying on this project. Councilor Ellis said he appreciated Vice-Mayor Greenlaw’s comments and that there was no choice but to support going into closed session because the report had confidential information in it. He said he did not agree that Council was in the evaluating and negotiating process. He said you don’t negotiate until you choose a group. Mayor Tomzak agreed he felt that they were in the evaluating stage. Councilor Howe stated that if that’s the case then the closed meeting would not fall under the closed session rules. He also asked what the City would lose since the presentations were held publically, the prices were made public, and the details were made public. He said they also made public that they would accept liquidated damages. He felt there wasn’t much left to negotiate. Councilor Devine stated that Council asked the consultant to prepare the report. The City Manager informed Council that it was being prepared. Council was aware that it would contain proprietary information. She called to question to move on. The motion to approve the resolution passed by the following recorded votes. Ayes (4). Councilors Tomzak, Greenlaw, Devine and Solley. Nays (3). Ellis, Howe and Paolucci. Closed Meeting Approved. Upon the motion of Councilor Solley, seconded by Councilor Devine and passed by the following recorded votes, Council approved a closed meeting under the Virginia Freedom of Information Act, Code Section 2.2-3711(A)(28) to discuss or consider memoranda, staff evaluations, or other records prepared for evaluation and negotiation of proposals on the courthouse and court facilities submitted under the Public- Private Educational Facilities and Infrastructure Act of 2002. Ayes (4). Councilors Tomzak, Greenlaw, Devine and Solley. Nays (3). Ellis, Howe and Paolucci. Return to Open Meeting Approved. Upon the motion of Councilor Devine, seconded by the Councilor Ellis and passed by the following unanimously recorded votes, Council approved a return to an open meeting. Ayes (7). Councilors Tomzak, Greenlaw, Devine, Ellis, Howe, Paolucci and Solley. Nays (0). None. Resolution 11-25, Approved Certifying Closed Meeting. Upon the motion of Councilor Devine, seconded by Councilor Ellis and passed by the following unanimously recorded votes, Council approved Resolution 10-25 certifying their closed meeting. Ayes (7). Councilors Tomzak, Greenlaw, Devine, Ellis, Howe, Paolucci and Solley. Nays (0). None. 4  Adjournment. There being no further business to come before the Council at this time, the meeting was declared officially adjourned at 7:10 p.m. Tonya B. Lacey Tonya B. Lacey Clerk of Council City of Fredericksburg 5