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Agenda 06/14/2016 Item #17F 6/14/2016 17.F. EXECUTIVE SUMMARY Recommendation to (1) amend Ordinance No. 2013-69, as amended, the Collier County Purchasing Ordinance, by adding a new sub-section establishing a vendor payment dispute resolution process in accordance with the Local Government Prompt Payment Act, to be conducted by an impartial Prompt Payment Hearing Examiner; and (2) authorize the establishment of the Collier County Prompt Payment Procedure process for the conduct of hearings before the Prompt Payment Hearing Examiner. OBJECTIVE: To create a process to help resolve vendor payment disputes. CONSIDERATIONS: At its April 12, 2016 regular meeting (Item 10-F), the Board of County Commissioners directed the County Manager and County Attorney to prepare a vendor payment dispute resolution process in keeping with the Local Government Prompt Payment Act (§ 218.70 et. seq., Fla. Stat.). The Local Government Prompt Payment Act (LGPPA) was enacted in 1989 to ensure that local governmental entities promptly pay their vendors. Failure to meet the timelines established in the LGPPA can result in significant interest penalties assessed against a local governmental. The proposed Ordinance adds a new sub-section to the Collier County Purchasing Ordinance entitled "Vendor Payment Dispute Resolution," which mirrors the dispute resolution process outlined in the LGPPA, and also provides for the appointment of a Hearing Examiner in the event the parties are unable to reach resolution on the payment dispute. The Board of County Commissioners discussed the amendment on May 10, 2016 (Item 11-A) and authorized the County Attorney to prepare and advertise the amending Ordinance, which Ordinance was duly advertised. To implement the Ordinance, the County Attorney, working with Staff, prepared a proposed process for the conduct of hearings before the Prompt Payment Hearing Examiner, and is requesting Board approval of same. FISCAL IMPACT: The cost of advertising the proposed Ordinance was $387.15. LEGAL CONSIDERATIONS: The County Attorney reviewed this item and approved it as to form and legality. Majority support of the Board is required for approval. - JAK GROWTH MANAGEMENT IMPACT: None. RECOMMENDATION: That the Board of County Commissioners 1) amends Ordinance No. 2013-69, as amended, the Collier County Purchasing Ordinance, by adding a new sub-section establishing a vendor payment dispute resolution process in accordance with the Local Government Prompt Payment Act, to be conducted by an impartial Prompt Payment Hearing Examiner; and (2) authorizes the establishment of the Collier County Prompt Payment Procedure process for the conduct of hearings before the Prompt Payment Hearing Examiner. PREPARED BY: Jeffrey A. Klatzkow, County Attorney. Attachments: Proposed Ordinance; Proposed Prompt Payment Procedure Packet Page -2355- 6/14/2016 17.F. COLLIER COUNTY Board of County Commissioners Item Number: 17.17.F. Item Summary: Recommendation to (1) amend Ordinance No. 2013-69, as amended, the Collier County Purchasing Ordinance, by adding a new sub-section establishing a vendor payment dispute resolution process in accordance with the Local Government Prompt Payment Act, to be conducted by an impartial Prompt Payment Hearing Examiner; and (2) authorize the establishment of the Collier County Prompt Payment Procedure process for the conduct of hearings before the Prompt Payment Hearing Examiner. Meeting Date: 6/14/2016 Prepared By Name: NeetVirginia Title: Legal Assistant/Paralegal, CAO Office Administration 6/7/2016 3:38:40 PM Submitted by Title: Legal Assistant/Paralegal,CAO Office Administration Name: NeetVirginia 6/7/2016 3:38:41 PM Approved By Name: MarkiewiczJoanne Title: Division Director-Procurement Services,Procurement Services Date: 6/7/2016 4:02:09 PM Name: BrockMaryJo Title: Executive Secretary to County Manager, County Managers Office Date: 6/8/2016 3:16:04 PM Name: BrockMaryJo Title: Executive Secretary to County Manager, County Managers Office Date: 6/8/2016 3:28:27 PM Packet Page -2356- 6/14/2016 17.F. Name: KlatzkowJeff Title: County Attorney, Date: 6/8/2016 4:52:47 PM Name: KlatzkowJeff Title: County Attorney, Date: 6/8/2016 5:03:50 PM Name: IsacksonMark Title: Division Director-Corp Fin&Mgmt Svc, Office of Management&Budget Date: 6/8/2016 5:08:20 PM Name: OchsLeo Title: County Manager, County Managers Office Date: 6/8/2016 5:28:30 PM Packet Page -2357- 6/14/2016 17.F. ORDINANCE NO.2016- AN ORDINANCE AMENDING ORDINANCE 2013-69, KNOWN AS THE COLLIER COUNTY PURCHASING ORDINANCE, BY ADDING A NEW SUB-SECTION TO SECTION SIXTEEN, PAYMENT OF INVOICES, WHICH ESTABLISHS A VENDOR PAYMENT DISPUTE RESOLUTION PROCESS IN ACCORDANCE WITH THE LOCAL GOVERNMENT PROMPT PAYMENT ACT; PROVIDING FOR CONFLICT AND SEVERABILITY, INCLUSION INTO THE CODE OF LAWS AND ORDINANCES,AND AN EFFECTIVE DATE. WHEREAS, the Board of County Commissioners (the Board) desires to seek the maximum value for the County by procuring the best value in obtaining commodities and contractual services; and WHEREAS, to better effectuate this desire, on December 10th, 2013, the Board adopted Ordinance No. 2013-69, known as the Collier County Purchasing Ordinance;and WHEREAS,the Board wishes to establish a vendor payment dispute resolution process in accordance with the Local Government Prompt Payment Act; and WHEREAS, in keeping with the above, the Board of County Commissioners wishes to amend this Ordinance as follows. NOW THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY,FLORIDA,that: SECTION ONE: Section Sixteen of the Purchasing Ordinance, Payment of Invoices, is hereby amended as follows: A. Agencies under the purview of the Board of County Commissioners shall be in compliance with F.S. § 218.70, otherwise known as the "Local Government Prompt Payment Act." Pursuant to this,the requirements of this section shall apply to the following transactions: 1. The purchase of commodities and services; 2. The purchase or lease of personal property; 3. The lease of real property. B. The County Manager shall establish and maintain procedures that authorize minor payment variances between the purchase order and invoice where warranted. The authority to pay such variances shall not exceed 5%of the purchase order amount or$500,whichever is less. C. The County Manager shall establish and maintain a process that authorizes the payment of freight and delivery charges that are not specifically identified on the purchase order of less than$500. Words Underlined are added;Words ask—Through are deleted. Packet Page -2358- 6/14/2016 17.F. D. It shall be the responsibility of the County Manager, in consultation with the Clerk's Finance Director and operating Divisions, to establish, procedures for the timely payment of all transactions as defined under subsection 16.A (subsection A of this section). Such procedures shall include, but are not limited to the following: 1. Formally defining the County's requirements for the content and submission of a proper invoice, codifying the County's payment requirements and notifying each vendor of their availability. 2. Steps required for the receipt of all invoices and the prompt return of improper invoices. 3. Steps required for the resolution of payment disputes between the County and a vendor. E. Each December,the Procurement Services Director and the Clerk of the Courts shall submit a report to the Board listing the number and total dollar amount of interest penalty payments made during the preceding fiscal year. F. Prior to payment, the Board shall approve all expenditures with a finding that such expenditures serve a valid public purpose. G. Vendor Payment Dispute Resolution Process. The purpose of this section is to establish a procedure whereby payment disputes with vendors who provide goods and services to the County are resolved in a timely manner and in keeping with the Local Government Prompt Payment Act. 1 Definitions. The definitions set forth in the Local Government Prompt Payment Act (Section 218.72, Florida Statutes 2016)are hereby incorporated by reference. 2 If an improper payment request or invoice is submitted by a vendor, the County's shall, within 10 days after the improper payment request or invoice is received, notify the vendor, in writing, that the payment request or invoice is improper and indicate what corrective action on the part of the vendor is needed to make the payment request or invoice proper. 3 If the parties are unable to reach resolution on the payment dispute,the County Manager shall appoint a Hearing Examiner, to whom the matter will be referred to. The Hearing Examiner shall have the sole and full authority to thereafter resolve the dispute. The proceedings before the Hearing Examiner to resolve the dispute shall commence with 45 days after the date the payment request or improper invoice was received by the County and shall be concluded with final written decision by the Hearing Examiner within 60 days after the date the payment request or improper invoice was received by the County. These proceedings are not subject to Chapter 120,Florida Statutes,and do not constitute an administrative hearing. Rather, these proceedings are intended to be quasi-judicial, open to the public, with the written decision of the Hearing Examiner being final, subject only to certiorari review. If the dispute is resolved in favor of the County, interest charges shall begin to accrue 15 days after the Hearing Examiner's final Words Underlined are added;Words&Fuck—Through are deleted. Packet Page -2359- 6/14/2016 17.F. decision. If the dispute is resolved in favor of the Vendor,interest begins to accrue as of the original date the payment became due. 4 If the County does not timely commence this dispute resolution process within the time required, a contractor may give written notice to the County of the failure to timely commence this dispute resolution procedure. If the County fails to commence this dispute resolution procedure within four business days after such notice, any amounts resolved in the contractor's favor shall bear mandatory interest, as set forth in Chapter 218, Florida Statutes, from the date the payment request or invoice containing the disputed amounts was submitted to the County.If the dispute resolution procedure is not commenced within 4 business days after the notice,the objection to the payment request or invoice shall be deemed waived. The waiver of an objection pursuant to this paragraph does not relieve a contractor of its contractual obligations. 5 In an action to recover amounts due under this part,the court shall award court costs and reasonable attorney's fees, including fees incurred through appeal, to the prevailing party. 6 The conduct of the Hearing Examiner proceedings, including notice, process, and criteria, shall be set forth the Procurement Division's Policies and Procedures. SECTION TWO: Conflict and Severability. In the event this Ordinance conflicts with any other ordinance of Collier County or other applicable law,the more restrictive shall apply. If any phrase or portion of this Ordinance is held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and such holding shall not affect the validity of the remaining portion. SECTION THREE: Inclusion in the Code of Laws and Ordinances. The provisions of this Ordinance shall become and be made a part of the Code of Laws and Ordinance of Collier County, Florida. The sections of the Ordinance may be renumbered or relettered to accomplish such, and the word "ordinance" may be changed to "section," "article," or any other appropriate word. SECTION FOUR: Effective Date. This Ordinance shall be effective upon filing with the Department of State. PASSED AND DULY ADOPTED by the Board of County Commissioners of Collier County, Florida,this day of June, 2016. Words Underlined are added; Words —Through are deleted. Packet Page-2360- 6/14/2016 17.F. A l"l EST: BOARD OF COUNTY COMMISSIONERS DWIGHT E.BROCK,Clerk COLLIER COUNTY,FLORIDA By: By: Deputy Clerk DONNA FIALA,CHAIRMAN Appr, ,, +'form . a egality: —00001,4 fit" Jeffrey,;. t atzkow, County Attorney Words Underlined are added;Words Struckugh are deleted. Packet Page -2361- 6/14/2016 17.F. Collier County Prompt Payment Procedure 1. Generally: Both the "Local Government Prompt Payment Act" (§ 218.70 et seq., Fla. Stat.) and Ordinance No. 2016 - are hereby incorporated into and are made a part of this procedure. There is hereby established a prompt payment procedure and a process for resolving payment disputes between vendors and Collier County government. The dispute resolution procedure shall be in furtherance of and in accordance with the Local Government Prompt Payment Act and the Collier County Purchasing Ordinance (Ord.No. 2013-69,as amended). The Collier County Manager shall be responsible for execution of the prompt payment procedure. 2. The Hearing Examiner: If an improper payment request or invoice is submitted by a vendor or contractor (collectively referred to as "vendor"), the County shall, within 10 days after the improper payment request or invoice is received, notify the vendor, in writing, that the payment request or invoice is improper and indicate what corrective action on the part of the vendor is needed to make the payment request or invoice proper. If the parties are unable to reach resolution on the payment dispute, the County Manager shall appoint the Special Magistrate as a Hearing Examiner, to whom the matter will be referred. Should the Special Magistrate be unable to serve, the County Manager shall appoint an unbiased individual who possesses, in the County Manager's sole opinion, the necessary credentials and background to so serve as a Hearing Examiner. The Hearing Examiner shall have the sole and full authority to thereafter resolve the dispute. The proceedings before the Hearing Examiner to resolve the dispute shall commence within 45 days after the date the payment request or improper invoice was received and shall be concluded with final written decision by the Hearing Examiner within 60 days after the date the payment request or improper invoice was received. These proceedings are not subject to Chapter 120, Florida Statutes and do not constitute an administrative hearing. Rather,these proceedings are intended to be quasi-judicial, open to the public, with the written decision of the Hearing Examiner being final, subject only to certiorari review. If the dispute is resolved in favor of the County, interest charges shall begin to accrue 15 days after the Hearing Examiner's final decision. If the dispute is resolved in favor of the vendor, interest begins to accrue as of the original date the payment became due. If the County does not commence this dispute resolution process within the time required, a vendor may give written notice to the County of the failure to timely commence this dispute resolution procedure. If the County fails to commence this dispute resolution procedure within four business days after such notice, any amounts resolved in the vendor's favor shall bear mandatory interest, as set forth in Chapter 218, Florida Statutes, from the date the payment request or invoice containing the disputed amounts was submitted to the County. If the dispute resolution procedure is not commenced within 4 business days after the notice, the objection to the payment request or invoice shall be deemed waived. The waiver of an objection pursuant to this paragraph does not relieve a vendor of its contractual obligations. 3. Conduct of the Hearing: The Hearing Examiner shall hold proceedings at a venue selected by the County Manager. The conduct of the hearing shall be substantially as follows: Page 1 Packet Page-2362- 6/14/2016 17.F. The hearing is informal. Only relevant evidence will be considered at the hearing. The Hearing Examiner will determine what is relevant. Before commencing, the court reporter should administer the oath to all those wishing to speak. If a speaker arrives at the hearing after the oath is given, the speaker must be sworn in before they can speak. The Hearing Examiner should endeavor not to take part in any ex-parte communications. To the extent that such communications were had, at the beginning of the hearing the Hearing Examiner must fully disclose all such communications including letters, e-mails, phone calls, and meetings. The subject matter of the communication and the identity of the person, groups or entity with whom the communication took place are all part of the disclosure. The Hearing Examiner must give any person who wishes to question the ex-parte disclosure the opportunity to ask questions. This right shall be waived by a failure to ask questions of the Hearing Examiner. The presentation of the hearing should be as follows: i. The vendor presents its case. Following the presentation,the County may question the vendor. ii. The County then presents its case. Following the presentation, the vendor may question the County. iii. The Hearing Examiner may ask questions at any time during the proceedings. iv. Interested members of the public may then speak. The Hearing Examiner should only give consideration to public testimony that is relevant to the issues being discussed. v. After the public has given testimony, in order, the vendor and the County should each have the opportunity to make a closing statement. vi. Upon conclusion of the closing statements, the Hearing Examiner should close the public hearing. vii. The Hearing Examiner has the discretion with respect to limiting the time for any given party or witness should the testimony become duplicative or immaterial and to issue any rulings to preserve order during the hearing. 4. The Decision: The Hearing Examiner shall announce a decision by a written final order. The Hearing Examiner shall make all reasonable efforts to render a decision within five (5) business days of the hearing date. The text of the final order shall find facts and make conclusions, which conclusions shall be deductible from the facts as found by the Hearing Examiner. The findings of fact shall be stated in non-argumentative and neutral terms and be divided into short, separately numbered, declarative paragraphs or sentences each of which contains only one (1) feature or point. At the Hearing Examiner's discretion, proposed findings of fact and conclusions may be submitted by the County and the vendor. The final order shall be considered rendered and final upon its execution by the Hearing Examiner and delivery of the decision to the County Manager, who shall promptly distribute the decision to the parties. The final decision of the Hearing Examiner may include recommendations for process or contract improvements, if applicable. Page 2 Packet Page -2363- 6/14/2016 17.F. In reaching the decision, the Hearing Examiner must review, where applicable, the underlying Agreement, Purchase Order, Work Order, Solicitation, and other relevant documents, to determine whether the payment of the invoice,in whole or in part, is proper. In addition, in determining whether an invoice should be paid, the Hearing Examiner should consider the following: a. The invoice should set forth the County purchase order number under which the purchase was made;and b. The invoice should set forth the name of the business organization that is recited in the county purchase order;and c. The invoice should set forth the date of its preparation;and d. The invoice should set forth an identifying number to facilitate identification of the invoice, including any revisions(indicated by original invoice number appended by"R"for"revised"); and e. The invoice should set forth a description of the goods, services or property provided to the county which may include a part or item number; and f. The invoice should set forth the location and date of delivery of the goods, services or property to the county,; and g. The invoice should set forth the quantity of the goods or services or property provided to the county, if applicable;and h. The invoice should set forth the unit price of the goods or services or property provided to the county, if applicable;and i. The invoice should set forth the extended total price of the goods or services or property provided to the county; and j. The invoice may set forth applicable discounts and the time period to which they are available if payment is made within the terms. The County Manager shall provide such clerical and administrative personnel and legal services as may be reasonably required by the Hearing Examiner for the proper performance of its duties, including but not limited to the services currently utilized by the Collier County Hearing Examiner (Ord. No. 2013-25). As the Board's invoice payment agent, the Clerk's Finance Department is encouraged to participate and support the Hearing Examiner. Page 3 Packet Page -2364- 6/14/2016 17.F. Totfpe i NOTICE OF INTENT TO CONSIDER ORDINANCE Notice is hereby'given that on Tuesday, June 14, 2016, in the Boardroom,Third Floor,Administration Building,Collier County Government Center,3299 East Tamiami Trail,Naples,Florida,the Board of•County Commissioners,will consider the enactment of a County Ordinance. The meeting will commence at 9:00 A.M. The title of the proposed Ordinance is as follows: AN ORDINANCE AMENDING ORDINANCE 2013-69, KNOWN AS THE COLLIER COUNTY PURCHASING ORDINANCE, BY ADDING A NEW SUB-SECTION TO SECTION SIXTEEN, PAYMENT OF INVOICES, WHICH ESTABLISHES A VENDOR PAYMENT DISPUTE RESOLUTION PROCESS IN ACCORDANCE WITH THE LOCAL GOVERNMENT PROMPT PAYMENT ACT; PROVIDING FOR CONFLICT AND SEVERABILITY,INCLUSION INTO THE CODE OF.LAWS AND ORDINANCES, AND AN EFFECTIVE DATE. 0 'A Copy of the proposed Ordinance is on file with the Clerk to the 011 Board and is available for inspection. All interested parties are ,invited to attend and be heard. 1.0 NOTE:All persons wishing to speak on any agenda item must register with the County administrator prior to presentation of c.� the agenda item to be addressed. Individual speakers will be limited to 3 minutes on any item. The selection of an individual to speak on behalf of an organization or group is encouraged. If recognized by the Chairman, a spokesperson for a group or 3 organization may be allotted 10 minutes to speak on an item. Persons wishing to have written or graphic materials included in the Board agenda packets must submit said material a minimum N of 3 weeks prior to the respective public hearing. In any case, c written materials intended to be considered by the Board shall be submitted to the appropriate County staff a minimum of seven days prior to the public hearing. All material used in 5 presentations before the Board will become a permanent part of the record. �^ Any person who decides to appeal a decision of the Board will need a record of the proceedings pertaining thereto and therefore, may need to ensure that a verbatim record of the proceedings is made,which record includes the testimony and evidence upon which the appeal is based. 0 if you are aperson with a disabilitywho needs any accommodation in order to participate in this proceeding,you are entitled,at no Q. cost to you,to the provision of certain assistance.Please contact the Collier County Facilities Management Department, located at 3335 Tatman Trail East, Suite #101, Building W, Naples, Florida 34112, (239)252-8380.Assisted listening devices for the hearing impaired are available in the County Commissioners' Office. BOARD OF COUNTY COMMISSIONERS COLLIER COUNTY,FLORIDA DONNA FIALA,CHAIRMAN DWIGHT E.BROCK,CLERK By: Martha Vergara,Deputy Clerk (SEAL) June 1,2016 No.1104622 Packet Page-2365-