HomeMy WebLinkAboutD-1971-09 VETO/Additional ServicesNOW, THEREFORE, BE IT ORDAINE
Indiana, that all contracts for professional service
Section 1. The forgoing Recitals are f
Section 2. Chapter 2, Article 5, Sec
shall read as follows:
(A) Any contra
not limited
architec
project
ORDINANCE D- 1971 -09
AS AMENDED
SPONSOR(s): Councilor(s) Accettu
AN ORDINANCE OF THE COMMON COUNCIL OF THE CI
CARMEL, INDIANA, ADDING CHAPTER 2, ARTICLE 5,
CHANGE ORDERS OR ALTERATIONS OF SPECIFICA
ADDITIONAL SERVICES TO THE CARMEL CI
inc
he
Seidensticker, Sharp and S der
184.1,
AND
E
WHEREAS, the Common Council of the City of Cannel, Indian
36- 4 -6 -18 is authorized to adopt ordinances and resolutions regarding the ontrol of the City's
property, finances, and the appropriation of funds; and
rsuant to Indiana Code
WHEREAS, the Common Council of the City of C d sires to add Chapter 2, Article 5,
Section 2 -184.1 to the Carmel City Code.
ommon Council of the City of Carmel,
subject to the following provisions:
porated herein by this reference.
2 84.1 is hereby added to the Cannel City Code and
Sec. 2- 184.1. Chan a Orders erations of S e ecifications and Additional Services
red int..y the Executive for professional services of any type including, but
ces or services related thereto) engineering, architecture, landscape
ing, economic development, urban redevelopment and all public works
ject to the provisions of this ordinance; and
(B) A r professional services (or services related thereto) shall be project
sp
(C) Un. o circumstances shall any contract contain a provision for additional services. If it
beco es necessary to change or alter the original specifications in the contract, a change order
m. be issued to add, delete, or change an item or items in the original contract. The change
der becomes an addendum to the contract and must be approved and signed by the Board of
Public Works (the Board) and the contractor (IC 36- 1- 12 -18).
A change order may not be issued before commencement of the actual construction,
reconstruction, or repairs except in the case of an emergency. In that case, the Board must make
a declaration, and the Board's minutes must show the nature of the emergency. In the event that
the projected cumulative amount of the change order exceeds 20% (IC 36- 1- 12 -18) of the
amount of the original contract, the scope of the project does not increase.
(E)
Section 3. That the remaining provisions of Carmel City Code Chapter 2, Article 5, are
not affected by this Ordinance and remain in full force and effect.
Section 4. All prior ordinances or parts thereof inconsistent with any provision of this
Ordinance are hereby repealed.
Section 5. This Ordinance shall be in full force and effect from and after the date of its
passage, execution by the Mayor and such publication as is required by law.
ADOPTED by the Common Council of the City of Carmel, Indiana, this I,1 day of
2009, by a vote of 7 ayes and nays.
COMMON COUNCIL FOR THE CITY 0 C
Presiding Office, fj
Ronald E. Carter
ATTEST:
The change order shall be subject to a public review by the Common Council including
the opportunity for the public to comment on the proposed change.
Diana L. Cordray, IAMC, reasurer
Presented by me to the Mayor of the City of Carmel, Indiana this a day of
2009, at 1 :30 P.M.
se. 1 ffith•
Kevin Rider
Ric s L. harp
4 .1.14•14
nyder
Tana L. Cordray, C, Clerk Treasurer
ATTEST:
Approved by me, Mayor of the City of Carmel, Indiana, this day of
2009, at .M.
Diana L. Cordray, IAMC, Clerk Treasurer
PREPARED BY: Diana L. Cordray
Clerk- Treasurer
City of Carmel
James Brainard, Mayor
TO: The Carmel Comm ori Council
FROM: James i s, rviayor
RE: ce D- 1971 -09, As Amended
DATE:
Dear Councilors:
December 17, 2009
MEMORANDUM
Throughout my tenure as Mayor of the City of Carmel "City I have always attempted to
engage in compromise with the Carmel Common. Council "Council In fact, I have only felt it
necessary to veto a proposed Council ordinance on two occasions in the last fourteen years.
Unfortunately, as I read proposed Ordinance D- 1971 -09, as amended. ("Ordinance"), it is clear that this
legal document was drafted by a layperson. Therefore, pursuant to Indiana Code 36 -4 -5- 3(10), I have no
choice but to veto this Ordinance because it violates Indiana law. A more detailed explanation follows.
Under Indiana law, it is my duty and responsibility to enforce the statutes of the State of Indiana
(I.C. 36- 4- 5 -3(1)) and to ensure the efficient government of the City (LC. 36- 4- 5- 3(7)). One of the most
important of these Indiana laws, which goes to the very heart of our system of government, is that a city
executive exercises all executive and administrative powers of the city, including the right to negotiate
and execute city contracts (I.C. 36- 4- 4 -3(a); 36- 4- 5- 3(a)). For over 137 years, the Indiana Supreme Court
has held that, when a power is conferred upon a city, and the manner in which that power is to be
exercised is prescribed, a common council cannot exercise that power if it is not conferred upon it. See,
First Presbyterian Church v. City of Fort Wayne, 36 Ind. 338 (1871). I cannot alter the statutory balance
of power between governmental branches that has served our state and our City in fine stead for so long
by today endorsing an ordinance that seeks to impinge upon an executive's power to enter into contracts
on behalf of the City. The Ordinance infringes upon the executive's statutory duty and responsibility to
negotiate contracts (I.C. 36- 1- 12- L2(1)). It prohibits the executive from negotiating contracts that allow
for a series of services, by dictating that "additional services" clauses cannot be in a contract. The Council
does not have the right under Indiana law to dictate to the executive what can and cannot be included in a
contract. I will not approve an ordinance that violates Indiana law.
1
100
DEC 18 A 8. 28
The Ordinance is also unlawful because it attempts to change Indiana law as regards change orders
to public works projects. Indiana Code 36- 1- 12 -18(a) clearly establishes the procedure for issuing change
orders, which requires a change order to become an addendum to the original contract and to be approved
and signed by both the Board of Public Works and Safety and the contractor. The Ordinance cannot
lawfully change this procedure, which it attempts to do. Moreover, as another illustration of why all
ordinances should be drafted or reviewed by a licensed attorney, the Ordinance renders nonsensical the
requirement under Indiana law that change orders that increase the scope of a project, taken as a total,
cannot exceed twenty percent (20 of the original contract amount unless the changes are the result of
circumstances that could not have been reasonably foreseen at the time the contract was executed. (I.C.
36- 1- 12- 18(d)). The Ordinance improperly attempts to override Indiana law as regards any change orders
that are due to unforeseen circumstances, requires the City to consider speculative future change order
amounts in its 20% cap calculation instead of only the actual monetary increases that are due to actual
change orders, and apparently penalizes the City in cases where the unforeseen circumstances drive
change orders past the 20% cap by retroactively declaring that none of the previous change orders can
increase the scope of the project. The Council President recently told me that the Council, under the
proposed Ordinance, has only the right to "review" a change order, not deny it. Yet the Ordinance, and
specifically Section 2 -184.1 (E) thereof, refers to a "proposed" change. By law, a change order, once
reviewed and approved by the Board of Public Works and Safety, is no longer a "proposed" change.
Therefore, even if the Council intended its "review" of change orders not to be part of the change order
process, the inclusion of the qualifier word "proposed" could be read as giving the Council the power to
approve, modify or reject change orders. This turns Indiana law on its head, and cannot be condoned. It is
yet another example of poor drafting that could create future legal disputes.
In addition to being unlawful, the Ordinance also creates an inefficient and unworkable contractual
system. It attempts to impose the special statutory restrictions that only apply to that narrow classification
of contracts known as "public works contracts" to all "professional services contracts," without
appreciating the significant differences between these two types of contracts. Public works involve the
construction, reconstruction, alteration or renovation of public buildings, streets and sewers (I.C. 36 -1 -12-
2; 36- 1- 12 -3.5). Professional service contracts, on the other hand, embrace a wide variety of specialized
services involving a great number of professions. They are not normally used for large, pre planned
construction projects, but to address immediate and pressing needs in situations where specialized skill
and expertise is not fungible and the public interest would not be served by awarding the work solely on
the basis of the lowest bid. Examples include contracts with doctors, lawyers, computer forensic
examiners and environmental specialists. Unlike public works contracts, to bid professional services
contracts would force the City to accept a professional who, while nominally qualified, has none of the
experience, skill and creativity needed to perform with the promptness and excellence the public demands
and expects.
2
The Ordinance would also hamper the ability of all City departments, including, but not limited to,
its public safety, utilities, legal and human resources departments, to obtain needed professional service
(I.C. 36- 4 -9 -2; 36- 4 -9 -4; 36- 4 -9 -8). This means that the City would be unable to obtain the outside
experts it needs to timely respond to legal, personnel and public safety issues. It would be forced to waste
weeks or even months waiting for a new professional services contract or contract amendment is being
negotiated, written and approved by the Board of Public Works, and for the Council to seek public
comment thereon, no matter how small the amount or how immediate the need at issue. This could mean,
for example, that in the case of another major petroleum spill like the one the City experienced last year,
the Utilities Director would be unable to obtain the assistance of an environmental expert to protect the
public's health and safety until a new professional services contract was prepared, executed and approved.
Such an unnecessary delay could prove catastrophic. Furthermore, this delay could not be avoided by
engaging in the standard business practice of entering into master contracts for the provision of a general
category of services, as the Ordinance requires each contract to be "project specific." I cannot and will
not put the City in a position where it has to wait weeks to retain the outside experts it needs to properly
respond to a situation requiring an immediate response.
Moreover, although the Ordinance suggests that it applies only to professional services, it reflects
a basic misunderstanding of that term. For example, the Ordinance's limitations apply to all contracts that
"relate to" engineering, architecture, landscape planning, city planning, economic development or urban
development, as well as to "construction, reconstruction and repairs." This broad language would
necessarily include both professional and non professional services, as well as the goods provided with
those services.
Finally, the Ordinance would force the City to waste hundreds of hours and thousands of dollars in
staff time each year preparing and negotiating the dozens of new contracts it would require, as well as to
endure the considerable risks that would result from the delays inherent in its contractual system. The
administrative cost could often exceed the cost of the services themselves. This represents bureaucracy at
its worst, and is wholly unacceptable.
I do support transparency in government. During my discussions with Council members, it was
mentioned that it is believed that additional service provisions are similar to new or amended contracts,
and should be signed by the executive and made available to the public for examination. I believe that
these are worthy ideas, and am therefore prepared to issue an Executive Order, effective January 4, 2010,
that ensures that all executive branch change orders are signed by the Mayor, made part of the record of
the Board of Public Works and Safety, and made available to the public. I also hope that you see the logic
of having all ordinances drafted or reviewed by the City Attorney or another licensed- attorney before they
are placed on the Council agenda. Such a requirement would likely alleviate the need for me to veto a
future ordinance because it, like this Ordinance, violates Indiana law_
Pursuant to I.C. 36- 4 -6 -16, Ordinance D- 1971 -09, as amended, is hereby vetoed. I ask for the
multitude of reasons set forth hereinabove that this veto be sustained. I look forward to meeting with the
Council to devise ways of meeting their concerns that do not violate „lndiana law.
07 .1 ei'L60
3
Janes Brainard, Mayor
Da e: ,���,osa/� 7 d