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Archive for Monday, July 1, 2013

Attorney questions city’s authority to issue no-bid contract for Rock Chalk Park

July 1, 2013

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The city is breaking its own law by allowing a more than $12 million, no-bid construction contract for infrastructure at Rock Chalk Park, a local attorney specializing in construction law said today.

“The city’s own law repeatedly affirms the requirement for public bidding by requiring bids and awards to bidders,” said Chris Burger, a Lawrence attorney who also is an adjunct professor of construction law and litigation at Kansas University’s law school. “It does not authorize the city to circumvent these requirements.”

Lawrence city commissioners on Tuesday are set to approve another round of documents that will allow an entity led by Lawrence developer Thomas Fritzel to build an estimated $12.2 million worth of roads, parking lots, utility lines and other infrastructure at the sports park without going through a bidding process.

Lawrence’s city attorney, though, contended today that the city does have the legal authority to waive its standard bidding process for the sports park, which will include both a city-owned recreation center and a privately owned sports park leased to Kansas University.

“This is a unique project where the city is partnering with a number of entities,” said City Attorney Toni Wheeler. “We think the charter ordinance does authorize us to waive the bidding procedures in this circumstance.”

But Burger said his reading of the 1984 charter ordinance governing the city’s process for bidding public improvements doesn’t grant the city the ability to waive the requirement for bids.

The ordinance — Charter Ordinance No. 19 — does include the phrase “unless waived by the governing body,” but Burger said it is clear to him that the phrase does not mean the city has the right to abandon the entire bid process. He said that language is only related to the form the bids must be received in, and to whether the city must require an engineer’s estimate.

“You have to read the ordinance as a whole,” said Burger, who is an attorney with the Lawrence firm Stevens & Brand. “You can’t just say that because it has the word ‘waived’ in it that you can waive everything.”

He also points to a specific sentence in the ordinance that he says clearly requires the city to bid the project: “The governing body shall let all such work by contract to the lowest responsible bidder who submits a responsive bid, if there is any whose bid does not exceed the estimate.”

“That last sentence just shuts the door,” Burger said.

City officials originally had proposed allowing both the $10.5 million recreation center and the $12.2 million in infrastructure costs to be awarded to a Fritzel firm through a no-bid contract. But commissioners earlier this year shifted gears and required a bid for the recreation center after members of the public expressed concern.

But the city continued on with the no-bid contract for the infrastructure, which will serve both the recreation center and the privately owned sports park that will be used by KU. Questions about whether the city has the authority to enter into a no-bid contract began to mount after the infrastructure cost estimates came in about $3 million higher than the city had expected. As currently proposed, the city is set to pay for at least $10.2 million of the costs, while a gift from Bill Self’s Assists Foundation is scheduled to pay for $2 million. The other partners in the project — Fritzel’s Bliss Sports and the Kansas University Endowment Association — aren’t scheduled to pay for any of the infrastructure.

Wheeler, the city attorney, conceded today that the city’s current charter ordinance related to bid procedures is not overly clear, but she said she disagrees with Burger’s analysis of it.

“I think it could be clarified,” Wheeler said. “But I don’t agree with the assessment that we are prohibited from doing this.”

In fact, the city has agreed to allow a large public project to be built without a bid before. City Manager David Corliss said the parking garage in the 900 block of New Hampshire Street was built in the 1990s as part of a development agreement with a private company, which is the same type of agreement the city is proposing to use to build the infrastructure at Rock Chalk Park.

“I’m not offering that as a legal opinion, but it is a precedent,” Corliss said.

The Journal-World attempted to research whether city commissioners in 1984 had any discussion about how Charter Ordinance 19 would be used. Neither the minutes of their meetings nor the newspaper articles about their meetings gave any indication that commissioners were aware they were approving an ordinance that would allow the city to entirely exempt itself from the bidding process.

Instead, the newspaper articles from the day presented the ordinance as primarily changing the dollar amount at which a project had to be bid. The ordinance changed it to $4,000, up from the previous amount of $2,000.

Burger said he finds it hard to believe that the City Commission in 1984 would have agreed to make a “radical departure from customary business” without having a significant discussion.

City Commissioner Mike Amyx was on the commission in 1984 when Charter Ordinance 19 was unanimously approved. Amyx today said he had no idea in 1984 that he was approving an ordinance that allowed the city to set aside its bid process for major construction projects.

“I was only under the impression that we were raising the dollar amount that requires a bid,” said Amyx, who has been the one commissioner who has consistently voted against the Rock Chalk Park project.

City commissioners this year certainly did have much discussion about waiving the bid process for the Rock Chalk Park project. But throughout the discussion, commissioners were assured by staff members that the city had the legal authority to do so.

If the city staff’s interpretation was in error, the City Commission simply could have adopted a new charter ordinance making it clear the city had the authority to waive the bidding process. But that ordinance would have created an interesting procedural twist for the project. Because it is a charter ordinance, it would have required a 60-day period where residents could have created a petition calling for the issue to be put to a citywide vote.

Burger said if his interpretation of the city’s bidding ordinance is correct, it is a “complex issue” to determine how the city could be forced to follow the ordinance. He said it is possible an interested general contractor or an ordinary taxpayer may have legal standing to challenge the city’s action in court.

“In any event, it seems the city is not going to self-correct, and a change will have to come through court intervention,” Burger said.

Comments

Phil Minkin 1 year, 5 months ago

This whole project has had a stench from the beginning and new revelations make it more questionable all the time. Back away and start over.

skinny 1 year, 5 months ago

Someone will get fired over this deal! Bet?

Kate Rogge 1 year, 5 months ago

Oh, I don't know. They're happy with what's been done so far, and they sure as heck don't care what criticisms are voiced. The Lawrence City Commission is right on board with Brownback's 'take care of the big boys' economics.

Steve Jacob 1 year, 5 months ago

"Amyx today said he had no idea in 1984 that he was approving an ordinance that allowed the city to set aside its bid process for major construction projects."

...and I am sure the voters in 1994 did not know they would be paying for a sports complex to be built west of town and have to pay for it until 2038.

CHEEZIT 1 year, 5 months ago

An attorney researching a law. Sounds like billable hours to me! And the bill goes to????

Keith 1 year, 5 months ago

Where do we contribute to the inevitable lawsuit?

thelonious 1 year, 5 months ago

If it walks like a duck, and quacks like a duck...it is most likely a duck! Interpret and discuss!

Eride 1 year, 5 months ago

I was waiting for Chris Burger to chime in on this.

Thanks Chris!

spiderd 1 year, 5 months ago

Excellent work. Also, anyone have any info regarding the legality of funding all this infrastructure of a privately owned complex using dollars meant for "recreation"? We all know it's twisted and wrong, but is it legal?

Loretta James 1 year, 5 months ago

With that kind of money being spent their should be a bidding process..........................

Sounds like something fishy going on.

BringBackMark 1 year, 5 months ago

This is a no brainer. Wheeler just needs to sit back, take a big breath, and think about it for a minute.

The City is paying for ALL of the infrastructure costs. KUEA is not paying a dime simply because of this silly agreement to spend up to $25 million based on preliminary estimates. Worse yet, the cost is well in excess of what bid prices would have been, so not only are the taxpayers paying for KU's infrastructure, but they're paying a ridiculous premium for them.

This wasteful spending all occurs at a time that City infrastructure is in shambles and needs millions of dollars worth of repair. Maybe that would've been a better use of funds than throwing away $5 million or so on a recreation center that's in a joke of a location to begin with.

I want copies of the photos that Fritzel has of the commissioners that voted for this debacle.

Sue McDaniel 1 year, 5 months ago

This entire project is ridiculous! The idea, way it has been handled, and everything about it just is not right. It is not about helping the citizens who will pay for it at all!!! If we had voted....

bidrigging101 1 year, 5 months ago

"In fact, the city has agreed to allow a large public project to be built without a bid before. City Manager David Corliss said the parking garage in the 900 block of New Hampshire Street was built in the 1990s as part of a development agreement with a private company, which is the same type of agreement the city is proposing to use to build the infrastructure at Rock Chalk Park."

Corliss just opened a can of worms by reminding us of the New Hampshire street parking garage debacle.

That’s like reminding us that Thomas Fritzel took Junction City for millions of dollars on a no-bid infrastructure project a couple years ago.

Budgets_Smudgets 1 year, 5 months ago

With four votes, they can pretty much do whatever they want regarding city ordinances.

Absent a lawsuit challenging this ordinance, which won't happen, an attorney's conjectural opinion about it is worth about 2 cents.

Just hullabaloo to fill the paper.

Budgets_Smudgets 1 year, 5 months ago

I'm not defending or supporting RCP. I'm just saying this legal interpretation of the charter ordinance issue, as a practical matter, means very little, when there are four solid votes to proceed with the project.

pizzapete 1 year, 5 months ago

We really don't have anything to worry about. I'm sure if we ask him nicely, Fritzel, will write us a receipt for the full amount we've spent. Remember this is still a great deal for the city of Lawrence. Fritzel is giving us a new recreation center for free and we're only having to pay him 25 million plus another 20 or 30 million in maintenance costs over the next fifty years.

blindrabbit 1 year, 5 months ago

beatnik: If we still had Mr. Wildgen, the place would look like the rest of Kansas. He wanted nothing to do with the Art's Center, Downtown Beautification and many other cultural advantages that we now enjoy. His Hoisington, Central Kansas background did not translate well to the different cultural, educational and historical significance of Lawrence.

Richard07 1 year, 5 months ago

If everyone is convinced this action by the city is obviously "illegal" why not obtain an injunction against it? Sounds like a slam dunk to me.

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