Miami-Dade Legislative Item
File Number: 080505
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File Number: 080505 File Type: Ordinance Status: Withdrawn
Version: 0 Reference: Control: Board of County Commissioners
File Name: CONTRACTS RELATING TO NORTH TERMINAL DEV. Introduced: 2/21/2008
Requester: NONE Cost: Final Action: 3/4/2008
Agenda Date: 3/4/2008 Agenda Item Number: 7D
Notes: HAS A SUNSET PROVISION Title: ORDINANCE RELATING TO THE NORTH TERMINAL DEVELOPMENT AT MIAMI INTERNATIONAL AIRPORT; AUTHORIZING COUNTY MAYOR OR, IF AUTHORIZED BY THE COUNTY MAYOR, THE AIRPORT DIRECTOR, TO ADVERTISE, ACCEPT OR REJECT BIDS, AWARD, AMEND OR MODIFY CONTRACTS RELATING TO NORTH TERMINAL DEVELOPMENT PROJECT WITHOUT THE NEED FOR PRIOR COMMISSION APPROVAL; AUTHORIZING WAIVER OF COMPETITIVE BIDS; ESTABLISHING CONDITIONS FOR EXERCISE OF DELEGATED AUTHORITY; AUTHORIZING TIME EXTENSIONS BEFORE AND AFTER EXPIRATION OF CONTRACT TIME; PROVIDING SEVERABILITY, INCLUSION IN THE CODE, AND AN EFFECTIVE DATE [SEE ORIGINAL ITEM UNDER FILE NO. 073018]
Indexes: MIAMI INTERNATIONAL AIRPORT
  NORTH TERMINAL
Sponsors: Jose "Pepe" Diaz, Prime Sponsor
Sunset Provision: Yes Effective Date: Expiration Date:
Registered Lobbyist: None Listed


Legislative History

Acting Body Date Agenda Item Action Sent To Due Date Returned Pass/Fail

Board of County Commissioners 3/4/2008 7D Withdrawn P

County Attorney 2/21/2008 Assigned David M. Murray 2/21/2008

Airport and Tourism Committee 2/14/2008 2A Amended Forwarded to BCC with a favorable recommendation with committee amendment(s) P
REPORT: Assistant County Attorney David Murray read the foregoing proposed ordinance into the record. Chairman Diaz announced that the foregoing proposed ordinance was open for public participation, and there being no-one to appear before the Committee, the public hearing was closed. Commissioner Sosa expressed concern regarding changing the procurement process for one project in which 90% of the procurement had been acquired. She asked Aviation Director Jose Abreu to provide additional information regarding the intent of the foregoing proposed ordinance. Mr. Abreu said when the County Commission adopted Amendment Four to the American Airlines (American) Agreement everyone believed the County would assume those contracts from American because sufficient construction was completed within the contracts for the new Airport Director to be able to complete the North Terminal Development Project. Mr. Abreu noted Amendment Four did not provide the ability to assign a budget to the contracts and each time he needed to enter into a contract he had to come before the Commission. He asked that he be allowed to access the funds appropriated by the Capital Improvement Program and assign these funds to the appropriate contracts as needed, with the understanding that if he exceeded the limit, he would have to come back to the Commission. Mr. Abreu noted he could be fined $125,000 per day for delays to Parsons/Odebrecht Joint Venture. Assistant County Attorney David Murray read into the record the following amendments to the foregoing proposed ordinance: Subsection 2-285.1 Mayor’s authority as to contracts relating to the North Terminal Development Project at Miami International Airport. (1) With respect to the contracts assigned to Miami-Dade County pursuant to Resolution R-735-05, and notwithstanding and prevailing over any other provision of the Code of Miami-Dade County, Florida to the contrary, the Mayor and the Airport Director, shall have the authority to: extend the contract time and waive liquidated damages for failure to comply therewith before the specified date for completion of the contract provided good cause exists and the contract provides that after the expiration of the contract time the County may extend the contract time or waive liquidated damages; and may otherwise modify the contract terms, may increase or reduce in any amount the scope and compensation payable under any contract, and may grant compensable and non-compensable time extensions. Additionally, to the extent that a contract listed in R-735-05 has expired, and such contract was competitively procured and contains no minority goals or measures, the County Mayor, and the Airport Director, may recommend to the Board of County Commissioners that a contract be re-awarded to the firm holding such expired contract, and such request will be heard by the full Board of County Commissioners without need for prior Committee Approval. The authority delegated in this section is intended to be supplemental to, and shall not limit, authority otherwise granted to the Mayor, County Manager, or Airport Director by ordinance or by administrative order. (2) The authority in this Subsection is subject to the following limitations: (a) Any amendment in excess of five million dollars in value shall be subject to the prior approval of the Board of County Commissioners, but shall not require prior committee approval. (b) Any exercise of authority to this section shall be subject to the budget approved by the Board for the North Terminal Development Project as a whole. (c) Any exercise of authority pursuant to this Section shall require ratification by the Board. (d) Nothing in this section shall affect the requirements of State law for the competitive purchase of goods and services, including those related to public construction work and those contained in the Consultants Competitive Negotiation Act. (e) Any exercise of authority pursuant to this section shall be in conformity with the policies and procedures which may be established by implementing order to be approved by this Board. The implementing order shall, contain guidelines for the exercise of the authority conferred under this section, and shall specifically provide for the application of County policies with respect to contracting, including but not limited to procedures for bid protests, inclusion of small business measures, community business enterprises, community small business enterprises, community workforce, and responsible wages. The provision of the Code relative to such programs shall not be applicable to the contracts specified herein except as specifically provided for in the implementing order. (f) Nothing in this section shall affect the process for settlement of construction disputes relating to the North Terminal Development approved by separate resolution of the Board. Commissioner Sosa noted she felt this was customized to address one time, an emergency situation. She requested the proposed ordinance be further amended to provide that this ordinance would sunset upon completion of the North Terminal Development Project; that the elements of this ordinance could not be extended to any other contract other than the North Terminal; and that the Airport Director’s name, Jose Abreu, be included within the ordinance. Chairman Diaz accepted the amendments proffered by Commissioner Sosa. Commissioner Martinez expressed concern that the foregoing proposed ordinance removed checks and balances; however, he noted he might be supportive of the ordinance with the amendments read into the record by Assistant County Attorney Murray and those proffered by Commissioner Sosa. He noted a lot of unintended consequences could occur; government had changed and the County Manager and staff no longer responded to the County Commission. Chairman Diaz noted the intent of the foregoing proposed ordinance was to save money and maintain the competitiveness of Miami International Airport by trying to expedite the North Terminal Development Project. Commissioner Heyman said while she appreciated Commissioner Sosa’s proposed amendments, she felt it was bad policy to name an individual, as opposed to naming a position. She noted her concern regarding the language read by Assistant County Attorney Murray regarding contract(s) listed in R-735-05 that had expired, and were competitively procured and contained no minority goals or measures. Commissioner Heyman questioned whether this deleted language appeared anywhere else in the proposed ordinance. Assistant County Attorney Murray advised the language Commissioner Heyman referenced had not been removed. He noted certain construction contracts that were bid by American included minority goals or measures which the Courts had determined to be illegal, and to the extent that a construction contract did not include these goals or measures, that contract could be brought back to the County Commission for re-award. Responding further to Commissioner Heyman, Assistant County Attorney Murray advised the proposed additional amendments regarding the duration of the North Terminal through 2011 was consistent with the other proffered language and he did not believe this constituted a conflict. Commissioner Sosa said she was not willing to change her proposed amendment to exclude Aviation Director Abreu’s name. She noted if the scenario changed, she would like the proposed ordinance to come back and that could only happen if Mr. Abreu’s name was included. Commissioner Rolle noted he was uncomfortable with the proposed ordinance and directed questions to Mr. Abreu. Responding to Commissioner Rolle, Mr. Abreu noted 90% of the procurement had been acquired through the County Commission’s existing governance, and he would come back to the Commission for the remaining 10%. He clarified that the language read into the record by Assistant County Attorney Murray only applied to the contract MDAD assumed from American. Commissioner Rolle noted he would support the foregoing proposed ordinance in Committee; however, he needed to know the equivalent dollar amount for the remaining 10% of the project before the ordinance was presented to the County Commission. Chairman Diaz asked Assistant County Manager Ysela Llort and Mr. Abreu to meet with each Committee member to explain the intent of the proposed amendments to this ordinance before it was presented to the County Commission for review and approval. Responding to Commissioner Heyman, Assistant County Attorney Murray advised if Mr. Abreu was the only named person assigned to the North Terminal Development Project and he was no longer in the capacity as Airport Director, there would be no power in the ordinance. Commissioner Heyman indicated she would not support the motion as stated. In response to Chairman Diaz’s inquiry, Assistant County Attorney Murray advised the proposed ordinance could include a sunset provision that if there was a change in the Airport Director, irrespective of whether it was the current Director or someone else, the ordinance would come back to Committee for review. Assistant County Manager Llort noted staff would meet with each Committee member to discuss the flexibility that this amendment would provide the Airport, specifically the issue regarding the 90% that had already been procured. Following discussion, the Committee proceeded to vote on the foregoing proposed ordinance as amended.

Legislative Text


TITLE
ORDINANCE RELATING TO THE NORTH TERMINAL DEVELOPMENT AT MIAMI INTERNATIONAL AIRPORT; AUTHORIZING COUNTY MAYOR OR, IF AUTHORIZED BY THE COUNTY MAYOR, THE AIRPORT DIRECTOR, TO ADVERTISE, ACCEPT OR REJECT BIDS, AWARD, AMEND OR MODIFY CONTRACTS RELATING TO NORTH TERMINAL DEVELOPMENT PROJECT WITHOUT THE NEED FOR PRIOR COMMISSION APPROVAL; AUTHORIZING WAIVER OF COMPETITIVE BIDS; ESTABLISHING CONDITIONS FOR EXERCISE OF DELEGATED AUTHORITY; AUTHORIZING TIME EXTENSIONS BEFORE AND AFTER EXPIRATION OF CONTRACT TIME; PROVIDING SEVERABILITY, INCLUSION IN THE CODE, AND AN EFFECTIVE DATE

BODY
WHEREAS Miami-Dade County, through its Aviation Department, is engaged the construction of the North Terminal Development, the largest airport construction project in the Southeast United States; and
WHEREAS the North Terminal Development is an extraordinarily complex project involving new construction and the demolition and renovation of existing facilities; and
WHEREAS the North Terminal Development involves construction within and around existing structures all within the context of the uninterrupted operation of the area's busiest airport; and
WHEREAS, pursuant to the Fourth Lease, Construction, and Finance Agreement between American Airlines and Miami-Dade County, American Airlines assigned to the County in excess of ninety design and construction contracts for contractors performing work on the North Terminal Project; and
WHEREAS the North Terminal Development has suffered from the need to use successor contractors and has to date suffered extensive delays; and
WHEREAS an expedited process for the award and modification of North Terminal Development contracts would allow for the expedient handling of contract issues including addressing incomplete items, changes in scope, and owner directed changes, and would allow for more efficient construction and faster payments to contractors and subcontractors, restoring confidence in the project in the contracting community; and
WHEREAS the expedited process would be subject to established safeguards and Board oversight through ratification; and
WHEREAS this Board desires to institute procedures to expedite administration of awarded and assumed contracts for the design, construction and installation of good related to North Terminal Development Project, so as to foster greater efficiency in the contracting process, while reflecting at all times this Board's policy decisions relating to procurement practices for the County and the Board's sensitivity to small business contracting goals as expressed from time to time by the Board,
NOW THEREFORE BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF MIAMI-DADE COUNTY, FLORIDA:
Section 1. The Code of Miami-Dade County, Florida is hereby amended by adding the following new section thereto as Section 2-285.1:1
>>Section 2-285.1 Mayor's authority as to contracts relating to the North Terminal Development Project at Miami International Airport.

(1) With respect to the contracts assigned to Miami-Dade County pursuant to Resolution R-735-05, and notwithstanding and prevailing over any other provision of the Code of Miami-Dade County, Florida to the contrary, the Mayor and the Airport Director, shall have the authority to: extend the contract time and waive liquidated damages for failure to comply therewith before the specified date for completion of the contract provided good cause exists and the contract provides that after the expiration of the contract time the County may extend the contract time or waive liquidated damages; and may otherwise modify the contract terms, may increase or reduce in any amount the scope and compensation payable under any contract, and may grant compensable and non-compensable time extensions . Additionally, to the extent that a contract listed in R-735-05 has expired, and such contract was competitively procured and contains no minority goals or measures, the County Mayor, and the Airport Director, may recommend to the Board of County Commissioners that a contract be re-awarded to the firm holding such expired contract, and such request will be heard by the full Board of County Commissioners without need for prior Committee Approval. The authority delegated in this section is intended to be supplemental to, and shall not limit, authority otherwise granted to the Mayor, County Manager, or Airport Director by ordinance or by administrative order.

(2) The authority in this Subsection is subject to the following limitations:

(a) Any amendment in excess of five million dollars in value shall be subject to the prior approval of the Board of County Commissioners, but shall not require prior committee approval.

(b) Any exercise of authority to this section shall be subject to the budget approved by the Board for the North Terminal Development Project as a whole.

(c) Any exercise of authority pursuant to this Section shall require ratification by the Board.

(d) Nothing in this section shall affect the requirements of State law for the competitive purchase of goods and services, including those related to public construction work and those contained in the Consultants Competitive Negotiation Act.

(e) Any exercise of authority pursuant to this section shall be in conformity with the policies and procedures which may be established by implementing order to be approved by this Board. The implementing order shall, contain guidelines for the exercise of the authority conferred under this section, and shall specifically provide for the application of County policies with respect to contracting, including but not limited to procedures for bid protests, inclusion of small business measures, community business enterprises, community small business enterprises, community workforce, and responsible wages. The provision of the Code relative to such programs shall not be applicable to the contracts specified herein except as specifically provided for in the implementing order.

(f) Nothing in this section shall affect the process for settlement of construction disputes relating to the North Terminal Development approved by separate resolution of the Board.

(g) The provisions of this Ordinance shall not apply to any contract not listed in Resolution R-735-05.<<

Section 2. If any section, subsection, sentence, clause or provision of this ordinance is held invalid, the remainder of this ordinance shall not be affected by such invalidity.
Section 3. It is the intention of the Board of County Commissioners, and it is hereby ordained that the provisions of this ordinance, including any sunset provision, shall become and be made a part of the Code of Miami-Dade County, Florida. The sections of this ordinance may be renumbered or re-lettered to accomplish such intention, and the word "ordinance" may be changed to "section," "article," or other appropriate word.
Section 4. This ordinance shall become effective within ten (10) days after the date of enactment unless vetoed by the Mayor, and if vetoed, shall become effective only upon an override by this Board.
Section 5. This ordinance shall sunset upon the earlier of January 1, 2011, or upon the substantial completion of the North Terminal Development Project, or if Jose Abreu is no longer the Director of the Miami-Dade County Aviation Department.
1 Words stricken through and/or [[double bracketed]] shall be deleted. Words underscored and/or >>double arrowed<< constitute the amendment proposed. Remaining provisions are now in effect and remain unchanged.



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