Appeals Hearing Board Meeting

MINUTES APPEALS HEARING BOARD MEETING Thursday, March 28, 2019 10:00 AM MONTEREY, CALIFORNIA Board members Present: Stocker, Millich, Yaqub (alternate) Absent: Hawkins Board Staff City Attorney Christine Davi, Assistant City Attorney Karin Salameh, and Present: Recording Secretary Alicia Salas Other Staff Public Works Director Steve Witty, Parks & Recreation Director Kristi Present: McClure Huckaby, Park Operations Manager Louie Marcuzzo CALL TO ORDER Chair Stocker called the hearing to order at 10:00 am. CONSENT ITEMS None. PUBLIC COMMENTS None. PUBLIC HEARING 1. Appeal by Tope’s Tree Services, Inc. of Parks and Recreation Department’s Notice of Intended Determination of Non-Responsibility RE: On Call Tree Maintenance Contracts 2019 for City and PMSA Projects Joseph Fenech attorney for Topes Tree Services gave reasons why his client should have an extension for the hearing. The Board members questioned Mr. Fenech regarding the request for extension. Assistant City Attorney Karin Salameh gave reasons why the hearing should go forward. Board member Millich made a motion to deny the continuance. With no second, discussion continued. Board member Yaqub said he feels that the Board should discuss the extension further. Board member Millich said Mr. Fenech had two weeks to prepare. Chair Stocker said the issue is safety and he feels it is urgent that the hearing proceeds. Board member Millich made a motion to deny the continuance. Board member Yaqub seconds the motion. On a motion made by Board member Millich, seconded by Board member Yaqub, and carried by the following vote, the Appeals Hearing Board voted in favor of the hearing continuing as noticed. AYES: 3 COMMISSIONERS: Millich, Yaqub, Stocker NOES: 0 COMMISSIONERS: None ABSENT: 0 COMMISSIONERS: None ABSTAIN: 0 COMMISSIONERS: None RECUSED: 1 COMMISSIONERS: Hawkins Appeals Hearing Board Minutes Thursday, March 28, 2019 Assistant City Attorney, Karin Salameh, representing the Parks & Recreation Department gave her presentation and took questions from the board. Ms. Salameh called Louie Marcuzzo, Park Operations Manager, who was sworn in by City Attorney Christine Davi. Mr. Marcuzzo said at the bid opening for on-call tree services there were three bids and Topes Tree Service [Topes] was the lowest bidder for both the PMSA and the City contracts. He said the next day, Lisa Linsao from the Risk Department emailed him about the results of the bids. He said a couple of days later there was a bid protest, from West Coast Arborist (WCA) against Topes because they believe not all the items asked for were not provided. Mr. Marcuzzo said he conferred with the City Attorney’s Office and it was decided that a letter would be sent to Topes asking for more information. Ms. Salameh clarified with Mr. Marcuzzo that the letter was an email he sent on February 28, 2019 to Topes asking for additional information. Ms. Salameh asked Mr. Marcuzzo what he was asking for in the email; he said he needed 1.) proof that the people in question were actually on-staff; 2.) proof that the proper equipment was on-staff; 3.) certified documentations for cranes; and 4.) Safety Program and documentation of Quality Control Plan. Ms. Salameh asked Mr. Marcuzzo if these items had been on the specifications on the call for bids, to which Mr. Marcuzzo answered yes. Ms. Salameh asked Mr. Marcuzzo how may items were asked for on the call for bids for the On-Call Tree Maintenance Contract. He said there were 31 items in both the PMSA and City On-Call contracts. Ms. Salameh asked Mr. Marcuzzo if the bid ask for on-staff Pest Control Advisor and an on- staff Licensed Pest Control Applicator? Mr. Marcuzzo said both the PMSA and City on-call Tree Maintenance contract asked for both items with the term “on-staff” used. She then asked Mr. Marcuzzo, what does the term “on-staff” mean in his opinion. He said in his opinion, on- staff means being on the payroll and employed by the contractor. Ms. Salameh asked Mr. Marcuzzo with the additional information submitted by Topes, did you determine that they complied with the bid specifications #15 & #16, the on-staff Pest Control Applicator and Advisor? Mr. Marcuzzo said he determined they did not have an on-staff advisor or applicator because they listed names of other companies that they work with, such as Arbor Jet and Target Specialty Products. Ms. Salameh asked Mr. Marcuzzo if he asked for additional information in his email of February 28, 2019 regarding the 95 -100 ft. aerial lift truck, which is bid item #22. He said he wanted to know if they owned an aerial lift truck. Mr. Marcuzzo said they responded in an email that they did not have one of those trucks but rent them on an as needed basis from All Tech Global; and were planning on purchasing one of their rental units very soon. Ms. Salameh asked Mr. Marcuzzo why their response was not sufficient to comply with bid item #22. He said they did not have an aerial lift truck in their possession at the time of the bid. Chair Stocker asked Mr. Marcuzzo if the bidders have an opportunity to ask questions to clarify the “on-staff” requirement during the bidding process, to which he answered in the affirmative. Chair Stocker asked if before granting a bid do the they all get reviewed for the qualifications even without a protest. Mr. Marcuzzo said not all, but the obvious ones, will get reviewed. Mr. Fenech asked Mr. Marcuzzo about his role with the city. Mr. Marcuzzo said he is the Parks Operations Manager with the City of Monterey and oversees anything to do with Parks, the Cemetery, beaches and forestry. Mr. Fenech asked what role does Ms. Huckaby (Kristi McClure Huckaby) perform for the City, he said she is the Director of Parks and Recreation. Mr. Fenech asked Mr. Marcuzzo if Ms. Huckaby participated in the bid process to which he answered in the affirmative. Mr. Fenech asked Mr. Marcuzzo who sent the bid protest, he said 2 Appeals Hearing Board Minutes Thursday, March 28, 2019 the protest came from West Coast Arborist (WCA). Mr. Fenech asked if WCA was the current on-call Tree Maintenance contractor, to which Mr. Marcuzzo answered yes and that they had been with the City for about 6 or 7 years. Mr. Fenech ask Mr. Marcuzzo if he had discussions with West Coast Arborist (WCA) about the bid; Mr. Marcuzzo said he had not had any discussions with WCA. Mr. Fenech asked Mr. Marcuzzo who he conferred with to make the non-responsibility determination. Mr. Marcuzzo said he conferred with Ms. Huckaby and Assistant City Attorney, Karin Salameh. Board member Millich asked Mr. Marcuzzo if he had a conversation with Topes regarding the on-staff requirement? Mr. Marcuzzo said he might have had a conversation with them about the requirement. Ms. Salameh called Christine D. McClure Huckaby who was sworn in by Ms. Davi. Ms. Salameh asked Ms. Huckaby what her role with the city is Ms. Huckaby said she is the Director of Parks and Recreation and she oversees the Recreation, Monterey Sports Center, Parks, Cemetery, Urban Forestry etc. Ms. Huckaby said a bid protest came in from WCA at the end of February. She said that in addition to the bid protest she went through all the specifications of the bid to make sure that the response met all the requirements. She said that she conferred with Mr. Marcuzzo to give Topes an opportunity to submit some items that we not originally submitted with the bid. She said the email sent to Topes was to clarify what was needed to make the bid whole. Ms. Salameh asked Ms. Huckaby why she decided to follow up on the items missing from the submittal. Ms. Huckaby said she is the one who is responsible for making sure the bid goes to the lowest responsible bid proposer. She said with a number of items not being submitted with the bid and in particular the items with the Safety Training Program and a Quality Control Plan that are very important to the City, it gave her concern. Ms. Huckaby said the reason the bid called for an on-staff Pest Advisor is because in spring/summer of this year (2019) there will be new urban use regulations taking effect regarding pesticides and the City wanted to be proactive for when those regulations come forward. Ms. Salameh asked Ms. Huckaby if a Safety Plan was received with the bid submitted by Topes; she said they did not receive a Safety Plan with their original bid proposal. Ms. Salameh asked Ms. Huckaby if the Safety Plan that was provided after the original submittal by Topes was adequate in satisfying the Safety Training Program and Quality Control Plan requirement (SB198). Ms. Huckaby stated in her professional opinion, their response was not an adequate response to our request for more information. Ms. Salameh asked Ms. Huckaby why safety is so important to the Parks & Rec. Department but especially in the tree industry. Ms. Huckaby said prior to her employment with the city there was an injury in one of the greenbelts. She said it is important that her staff have a Safety Program in place going forward on any program but especially in the urban forestry. Ms. Salameh asked if the document provided by Topes after their original submittal was adequate for the Quality Control Plan requirement, to which Ms. Huckaby stated, in her professional opinion, the plan was not adequate and did not satisfy line item 19 of the bid specifications. 3 Appeals Hearing Board Minutes Thursday, March 28, 2019 Ms. Salameh asked Ms. Huckaby to read The Standards of Responsibility, which is included in the specifications, into the record. Ms. Huckaby said after reviewing The Standards of Responsibility and the documents that were submitted by Topes, it was her determination that Topes was not responsible. Board member Yaqub asked if there was a definition of the word on-staff. Ms. Salameh said there is no definition of the word “on-staff” in the call for bids and it is not defined in the contract itself. It would be the Boards prerogative to use the ordinary use of the word. Board member Yaqub asked Ms. Salameh if in the bid or contract there a requirement that they have to own versus lease versus having access to the truck equipment. Ms. Salameh stated that, if a line item is over one half of 1% of the bid, under state law, you have to identify that the line item is being subcontracted out. Topes did not identify this as a subcontractor and did not state that they specifically owned that equipment when asked for follow-up information. Ms. Salameh said under state law if you don’t identify the work as performed by a subcontractor, you are required to self-perform that work. Mr. Fenech said Topes will only rent the equipment and they will perform the work so it was not going to be a true subcontractor situation. Mr. Fenech called Andrew Tope Jr. who was sworn in by Ms. Davi. Mr. Tope said he was employed by Topes for 15 years. He said the business has been around for almost 40 years and has about 40 employees. Mr. Tope Jr. said they used to do some work with the City of Monterey about eight years ago and have been trying to come back since then. He said he believed Topes did not have the manpower eight years ago but said they have grown their business over that time to be able to compete and that they have been waiting for this opportunity. Mr. Fenech asked Mr. Tope Jr. if he had contact with Mr. Marcuzzo regarding the on-staff pest advisor. He said he told Mr. Marcuzzo that he felt the pest advisor was on-staff, as this person does not charge them for a consultation and is available to them as needed. Mr. Tope Jr. said the contract stated the pest advisor would only be used about twenty hours for both contracts and he didn’t feel they needed to be a full-time employee. Mr. Fenech asked Mr. Tope Jr. about the chain of command at Topes Tree Service. Mr. Tope Jr. said he and his father are in the field daily. He said each crew has a foreman and each crew is about 3-5 people which he and his father monitor daily in the field. Mr. Fenech asked Mr. Tope Jr. about the trucks they use. He said the bucket truck has a remote control that can be used by one person. Mr. Tope Jr. said they have two 127 ft. trucks and one 95ft. truck, he said that in his professional opinion they are safer trucks than the truck the city is requiring. Chair Stocker asked Mr. Tope Jr. if when bidding for contracts with other cities was the process the same and did they have continued discussions after the original submittal to which Mr. Topes Jr. said Carmel had continued discussions with them. Board member Yaqub asked Mr. Tope Jr. how long would it take to make the bid submittal comply with the requirements the city is asking for, to which Mr. Tope Jr. said he could produce all the required documents quickly. 4 Appeals Hearing Board Minutes Thursday, March 28, 2019 Closing Arguments Ms. Salameh gave her closing statement. Mr. Fenech gave his closing statement. Public comments None. Board Member Comments Board member Millich said he was concerned with item #15, on-staff pest control applicator and on-staff pest control advisor and feels the city did not meet the burden of proof. He also said he was concerned with item #22, the aerial lift truck, but would defer to Chair Stocker for his expertise on the matter. Board member Yaqub said he is concerned about the fact that the city did not discover issues with the bid until there was a protest. He also said the term “on-staff” was very vague. Board member Yaqub said he felt the city did not meet the burden of proof, but also felt that Topes did not do a good job with its submittal either. Chair Stocker said he feels that Topes met the requirements asked for by the city and feels like he is leaning toward granting the appeal. Board member Millich made a motion granting the appeal; Board member Yaqub seconds the motion. On a motion made by Board member Millich, seconded by Board member Yaqub, and carried by the following vote, the Appeals Hearing Board upheld the Appeal by Tope’s Tree Services, Inc. and overturned staffs’ determination regarding the Notice of Intended Determination of Non-Responsibility RE: On Call Tree Maintenance Contracts 2019 for City and PMSA Projects AYES: 3 COMMISSIONERS: Stocker, Millich, Yaqub NOES: 0 COMMISSIONERS: None ABSENT: 0 COMMISSIONERS: None ABSTAIN: 0 COMMISSIONERS: None RECUSED: 1 COMMISSIONERS: Hawkins BOARD MEMBER COMMENTS None. ADJOURNMENT Chair Stocker adjourned the hearing at 1:06 pm. Respectfully Submitted, Approved, Alicia Salas, Daryl Hawkins, Recording Secretary Chair 5