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HomeMy WebLinkAboutCC Minutes - 09/12/01 Work Session MINUTES Eugene City Council Work Session McNutt Room--Eugene City Hall September 12, 2001 Noon COUNCILORS PRESENT: Betty Taylor, David Kelly, Nancy Nathanson, Scott Meisner, Gary Rayor, Gary Pap~, Bonny Bettman, Par Farr. CITY COUNCIL WORK SESSION Mayor James D. Torrey called the meeting to order. He departed from the adjusted agenda. He called for a moment of silence to recognize the victims of the September 11 terror attack on Washington, DC, and New York City. Mayor Torrey invited councilors to comment on the events of September 11 if they wished. Mr. Fart said there were no words that had not been said. He prayed that God was with the families of the victims and was giving them strength. Mr. Pap~ expressed appreciation for the vigil organized by City staff for the victims of September 11, saying it was helpful and healing. Mr. Meisner agreed with Mr. Fart that there were no words that had not been said. He also thanked City staff for organizing the community vigil the previous evening. Mr. Kelly said no words were adequate, and it was a horrible tragedy. He prayed that in the days to come the community and nation would stay calm and people would think of their commonalities instead of their differences. Ms. Taylor hoped the United States did not rush to retaliation. She said the events were very sad. Ms. Nathanson acknowledged the difficulty of commenting on the issue. She believed that all citizens were thinking of the welfare of the community and what could be done to keep it at peace. She also expressed appreciation for the vigil as a local expression of what could be done locally to make the world a better place. Mr. Rayor said he wished that from the ashes of disaster the country and the world could come together to create a process for a safer, more just, and peaceful world. Ms. Bettman thanked the manager and mayor for organizing the vigil. She said it was hard to conduct business as usual in the face of the staggering loss of life that had occurred. She said she prayed for the survivors and families the victims left behind. Ms. Bettman hoped the federal government's response did not involve the loss of more innocent lives. MINUTES--Eugene City Council September 12, 2001 Page 1 Work Session Mr. Johnson expressed pride in and appreciation for the City employees' response to the disaster, particularly the Airport, Police, and Library, Recreation, and Cultural Services staff. He said that national events had a strong local impact, particularly on the City's emergency services staff. Mayor Torrey said that such events caused all to reflect on how precious life is. He said that such situations brought to mind the question, why did I not spend more time with a loved lost one? He believed that the situation had created an opportunity for the council to get to know and respect each other as people. Mayor Torrey said that now was the time to step back and "smell the roses." City Manager Jim Johnson indicated he would provide the council with a copy of a press release related to the arrest of an individual for a hate crime. The individual involved had been cited and released. Mr. Johnson noted that the Eugene Airport was under additional security restrictions issued by the Federal Aviation Administration; those restrictions included the assignment of Police personnel at the airport, which would be paid by the Airport Fund. Mayor Torrey said that Downtown Events Management, Inc. (DEMI) had requested input from him and Mr. Johnson regarding the Eugene Celebration, and whether it should proceed with the event. He had consulted several groups, who were unanimous in wishing to proceed. He acknowledged e-mail messages he had received asking that the event not proceed. Mayor Torrey said that he had indicated his support to the Celebration organizers. He said that he had suggested each event be preceded by a moment of silence in memory of those lost, and that efforts be made to recognize the police and fire fighters who lost their lives responding to the bombings in New York. Mayor Torrey thought it important not to allow terrorists to dictate how United States citizens live their lives. Mayor Torrey returned to the published agenda. A.Work Session: Contracts and Architects Assistant City Manager Jim Carlson was present for the item. He noted the materials related to the item included in the meeting packet. He recalled that the issue initially arose when the architect's construction estimates for the new library were exceeded by the bids submitted. Mr. Carlson said that the City employed a standard architect/owner agreement that was used by most public agencies. When such a situation occurred, the City had four options on how to proceed; those were outlined in the meeting packet. He invited questions. Mr. Meisner said that the example of the library was not the only example of the situation mentioned by Mr. Carlson, just the most recent. He cited Broadway Place as another example. In that situation, the City ended up paying more than anticipated. He criticized the City's use of boilerplate contract language. He said the approach taken to this point had not worked for the City. Mr. Meisner said the City needed to do a better job with respect to contracting, and needed to be better protected. He asserted that the City had "been losing regularly." He thought the issue went beyond contracts with architects to all contracts. MINUTES--Eugene City Council September 12, 2001 Page 2 Work Session City Manager Jim Johnson noted that the Broadway Place contract was also an AIA (American Institute of Architects) contract. Mr. Meisner said "that only made it worse." The City had not changed its approach since that incident. The City "was losing," and that was not acceptable to him. It made him distrust the concept of the City as a project manager, and he was becoming increasingly interested in Mr. Rayor's suggestion that such activities be contracted out. Mr. Rayor referred to the example contract included in the meeting packet and determined from staff that Section 2.1.7.5 mandated that if an architect's estimates were incorrect, the architect must continue to work at his or her own expense to make the project on budget. He termed that fair and said that cost estimating was done to give owners reasonable assurance of the price to expect when they go into the bidding process, because the owner relied on the architect's expertise. Mr. Rayor said that his problem with the library project centered around the fact that the architect firm did not take responsibility for the problem, blaming a subcontractor and hurting that subcontractor's reputation. City staff had repeated the contractor's statements, and he believed the City could be sued as a result, given that its contract was not with the subcontractor but with the contractor. Mr. Rayor was aware of a number of agencies that had written speciality clauses for AIA contracts. He asked staff to find out what speciality clauses the other agencies using AIA contracts employed. He thought that the council could then hold a second work session to discuss how other agencies "got around this problem." Mr. Johnson asked Mr. Rayor what problem he was referring to. Mr. Rayor said that some of the problems centered around the fact the contract was an architect's document and there may be some "slight, bilateral giving that the agencies equalize" by changing the contract. Using the library contract as an example, Mr. Pap~ asked if one option for the City would be to sue to recover its fee to the architect. Mr. Klein said the City's options were limited by the contract. He pointed out that the City was not obliged to sign a contract with terms it did not like, but the same was true of the other party; the question was, what could the City and the other partner to the contract agree to? Mr. Klein said a contract must be something both sides can live with. Under the library contract, the architect had to provide additional services free of charge to do what the firm contracted with the City to do, which was to design a building at a certain price. Mr. Pap~ asked if the architect would have had to do more if the City had asked it to return with a building that was in the original price parameters. Mr. Johnson said that the architect would have had to do a substantial amount more of work. The council had that choice; rather than do only that, the council decided to add more money to the project. Mr. Pap~ determined from legal counsel Jeff Matthews of the City Attorney's Office that the contract contained arbitration provisions to resolve differences between the City and architect. Mr. Pap~ asked if the City Attorney's Office had looked for claims to bring against the architect. Mr. Johnson said yes; subsequently, the City Attorney's Office had recommended to him that it was in the City's best interest not to proceed to arbitration. He had concurred with the recommendation, which he had shared with the council. Mr. Pap~ stated for the record that he had not agreed with that recommendation as he believed that the City had a credibility problem with the public. It had gone to the public with a library project at a certain cost and then the costs ballooned by 20 percent. He said that made the council and City look bad to the public. MINUTES--Eugene City Council September 12, 2001 Page 3 Work Session Ms. Bettman expressed her agreement with Mr. Pap8 and added that when the council examined its options as they related to the library project, it could either have derailed the project for a time or made the concession and moved forward. She did not think that was really an option, and said the remedy to that should be built into the contract, rather than having to await the action of the council when the damage was already done. She supported the speciality clauses mentioned by Mr. Rayor, saying if they gave the City more options they should be used. Ms. Bettman questioned if the City's inability to seek redress in the case of the library was a result of the base contract or the modified portion of the contract. Mr. Matthews said that the remedies for an over-cost bid were in the base contract. Ms. Bettman asked if the reductions necessitated to the library project had substantially changed the nature of the project. She said that it appeared to her it was a different project, and if it had been put out to bid the results would have been different. Mr. Johnson responded that the $1.8 million in reductions did not substantially change the project; the larger amount that would have been cut had not the City and library foundation stepped in would have substantially altered the project. Staff discussed the advantages and disadvantages of putting the project out for bid again, but given how close the bids were, decided that the City would not gain from putting it out to bid. Private contractors had concurred with that decision. Ms. Bettman requested a list of recommendations for how the City could improve the process to get a better result. Ms. Nathanson cited a situation where a project redesign created an increase in indirect costs to the project owner and asked who paid those costs. Mr. Matthews said that under a standard AIA contract, consequential damages are contractually waived by both parties. He had worked with staff on modifications to standard engineering contracts removing that provision. He had not examined the library contract to determine if it had a waiver of consequential damages; if not waived contractually, the architect would be responsible. Mr. Johnson indicated staff would follow- up with that information in a memorandum. Mayor Torrey wanted to ensure that contracts were clearly written so that people bidding on City contracts understand what mitigation is available to the City in case something went wrong. Ms. Taylor did not think it productive to spend time talking about past mistakes and suggested it was more important to determine how to avoid them in the future. She wanted the council to have a clear explanation of what could change in the contract to reach that goal. Mr. Rayor did not want to add to the standard contracts in a way that made it difficult for the City to work with architects, but suggested that there were useful modifications that could be made that would also suggest to bidders that the City was a knowledgeable owner. He reiterated his previous information request. Mr. Meisner found Mr. Matthews's answer to Ms. Nathanson's question about the consequential damages provision discouraging, saying that the City "really needed to know." The City had suffered twice now in terms of credibility as well as money. He said that he hoped after the Broadway Place situation the City would do a better job. In that case, the City had no liquidated damages provision in the contract with the architect, and no way to cost out what the delays were costing the community. He said the same situation continued into the next major project. He was MINUTES--Eugene City Council September 12, 2001 Page 4 Work Session not sure he trusted the City to manage the next major construction project on the basis of the two last experiences. Mr. Meisner said the City had to do better. Mr. Matthews noted that the claim for consequential damages standard text was modified for the library contract to indicate that the parties did not waive claims for consequential damages. Mr. Meisner noted his concurrence with Mr. Papa's dissent from the manager's decision. Mr. Fart wished the council could find a way to address such issues without being publicly caustic to the City Manager. He believed there were other approaches. Mr. Pap~ asked if, prior to the council meeting on the issue, had the City had asked the architects what it would cost the firm to redesign the library within the scope of the contract. Mr. Johnson said there had been some discussion, but the council had been clear that it did not want the library that would result. Mr. Pap~ said it would have been nice at that time to have the answer to that question. He asked if there were any claims the City could make against the architect under the contract. Mr. Matthews said yes; he suggested if the City Council wanted to discuss potential litigation, an executive session be scheduled. Mr. Pap~ asked if the City could include penalties or liquidated damages clauses in future contracts. Mr. Matthews said yes, but noted that in construction law, liquidated damages clauses were very difficult to enforce. The same was true of penalty clauses. One must show that both parties reviewed and understood the potential penalties and they were correlated to a real loss in value. They could not be penal in nature. Mr. Matthews said that one could revise the over cost or remedy section of the contract and make it clear that if the design comes in over cost, the architect is contractually responsible and liable, but he believed the result would be a building that did not come close to the budget, but would be designed under budget to cover their liabilities. Mr. Matthews said the AIA contract was used because it a standard in the industry, and because it could be modified to fit the City's needs. The contract could be modified in any way desired. Mr. Pap~ was disappointed there was not an Option 5, to make a claim against the responsible party, suggested as a remedy. Mr. Johnson said that was not offered to the council because he thought it an appropriate decision for the manager, rather than the council. Mr. Pap~ determined from Mr. Johnson that the City always had the option to make a claim against the responsible party. MINUTES--Eugene City Council September 12, 2001 Page 5 Work Session B.Work Session: Groundwater Contamination Peter Ruffier of the Public Works Department joined the council for the item. He introduced Keith Henderson, Western Regional Cleanup Sites Program Manager for the Department of Environmental Quality (DEQ), and Chuck Solin, City of Eugene Loss Control and Environmental Program Manager. Mr. Ruffler provided an overview of existing regulations and authorities related to groundwater contamination, noting that authority over groundwater and groundwater contamination generally rested with federal and state agencies. He said the DEQ generally focused its groundwater clean- up activities on sites with the greatest risk of adverse impacts on beneficial uses or human health. The Oregon Health Department had some groundwater protection responsibility under the Oregon Wellhead Protection. The City Code had no provisions related specifically to general protection of groundwater. Mr. Henderson provided a brief overview of how the Department of Environmental Quality evaluated risks to the groundwater. Chuck Solin of the Human Resource and Risk Services discussed groundwater contamination impacts on City projects. Responding to a question from Ms. Bettman, Mr. Henderson confirmed that the owners of a site affected by contamination had the right to use the groundwater on their properties; the Water Resources Department regulates those issues. There was legal redress for people who were so affected. In cases where municipal water was available to the site, that was used to evaluate the current risk and the future likely risk associated with the site. It would be incumbent on the DEQ to ensure the responsible party treated the well water, removed the contamination, or took other means to protect groundwater users, such as wellhead protection systems. The DEQ monitored the groundwater quality. Ms. Bettman asked who paid for the monitoring. Mr. Henderson said that the responsible party does, in cases where one is identified. In cases where the site is a high priority and there is no identifiable responsible party, the State will pay for monitoring. Ms. Bettman thought the information presented to the council was missing recommendations for how the City could address some of the problems that existed in terms of groundwater contamination. Mr. Ruffler said that the City could take direct action in responding to a groundwater threat under current code. It was more common for the City to work with the DEQ on such situations. The City had standing to pursue legal action as allowed for under State statute if it was determined sufficient actions were not being taken. Ms. Bettman said that in several local cases, regulation or action was pending research, study, and monitoring by the DEQ. In some cases, that had started in 1993. She questioned whether such an approach actually did anything to rectify the situation. Mr. Henderson said that in some cases, the time to process a case was very lengthy, and in part it had to do with the relationship of the responsible party with the DEQ. In cases involving an imminent health threat, the DEQ worked with the responsible party to reach a speedy resolution. In other situations, the involved sites were part of the Voluntary Clean-up Program. In those cases, the responsible party was responsible for the time line and clean-up. If the property owner appeared to be lagging, the DEQ could terminate the project and walk away, but that would do no good for the environment. The DEQ had no means to require that the clean-up be done if the case did not involve an imminent health threat. Mr. Henderson said the DEQ had limited resources to do the clean-up itself. MINUTES--Eugene City Council September 12, 2001 Page 6 Work Session Mr. Kelly informed Mr. Henderson that receptors of contamination were not just humans, and hoped that could be "brought out" on the incident sheets. Mr. Kelly observed that it was difficult for a lay person to gauge the level of danger of contamination at a particular location from the DEQ Web site. Mr. Kelly hoped the City evaluated contamination situations to determine if legal action by the City was appropriate on a case-by-case basis. He requested a follow-up memorandum on the subject. Mr. Kelly requested a follow-up memorandum on the Baxter site, particularly the impact on the stormwater channel along Roosevelt Boulevard, and whether third-party litigation had occurred. Ms. Nathanson asked if the City routinely added community updates linked to the DEQ fact sheets. Speaking to Mr. Henderson, Ms. Nathanson thought a site map of the sites mentioned on the DEQ Web site would be helpful given that people were often not familiar with addresses. Ms. Nathanson noted that merely because a clean-up project was named after a certain company did not mean that company was responsible for the contamination; the company may have bought a contaminated site and could be seeking legal recourse from the former owners of the property. Ms. Nathanson asked if the neighborhood through which the Amazon Creek traveled was of concern in terms of contaminants, or if things improved. Staff indicated it would follow-up in writing. Ms. Bettman suggested that the groundwater contamination coming from the contaminated soil at the Baxter site could be alleviated by a shed roof. She asked if the City could negotiate with the property owners or require that to happen, or work with the DEQ to ensure it happened. She thought a shed roof was a simple, cost-effective remedy that would diminish the continuing pollution. C.Work Session: Selection of Bus Rapid Transit Routes for Further Study Kurt Yeiter of the Planning and Development Department joined the council for the item. Lane Transit District (LTD) Board member Gerry Gaydos, LTD General Manager Ken Hamm, and LTD planners Stefano Viggiano and Graham Carey were also present for the item. Mr. Yeiter reminded the council that it had asked LTD to identify the next routes in Bus Rapid Transit (BRT). Staff had consulted with the Planning Commission and asked it recommend three routes for further study, to be narrowed to one route in the future. He emphasized that the process was not intended to eliminate any routes from future consideration; all routes on the TransPlan map were valid, but they could not all be completed at the same time. Mr. Yeiter reviewed the Planning Commission's recommended routes: 1) West 11th/13th avenues to Beltline Road; 2) Coburg Road to the Chad-Crescent area, with a possible link to a BRT line connecting downtown Springfield to the Gateway area; and 3) West 6th/7th/Highway 99 to Barger MINUTES--Eugene City Council September 12, 2001 Page 7 Work Session Drive. The commission had emphasized the importance of BRT to west Eugene transit, whether the West Eugene Parkway was built or not. Mr. Gaydos thanked the council for its support of BRT. He looked forward to the process narrowing the routes and giving LTD more direction. He hoped the process could proceed more quickly in the future. Mayor Torrey called for council comments and questions. Mr. Kelly said that priority routes were those that would show success, address fundamental design issues such as dedicated busways, and minimize public opposition. He hoped the council would take action that day to demonstrate its commitment to BRT. Mr. Kelly wanted to eliminate the West 11th/13th route at this point and retain the other routes. He preferred the West 6th/7th/Highway 99 as the first priority, saying it was under served by transit, was a high-growth area, would allow the community to work with the Oregon Department of Transportation on guideways on those streets, and put the system in place to link to River Road. Coburg Road would serve the business area and residential areas to the north. He acknowledged the design challenge created by the current road but thought it could be overcome. Mr. Kelly noted what he termed intense neighborhood opposition to the West 11th/13th route. He said that service to the fairgrounds was over-emphasized in that route as he did not think the location was used heavily on a daily basis, and he believed that the system was supposed to serve heavy daily users. Mr. Meisner, a member of the Bus Rapid Transit Steering Committee, noted his concurrence with Mr. Kelly about the political difficulties of West 11th/13th. He did not believe that the neighbors th th supported West 6 /7 /Highway 99 as an alternative to West 11th/13th; he thought the neighbors had spoken to the concept of using West 6th/7th/Highway 99 as an alternative way to get to the west side. The route would provide opportunities to serve River Road/Santa Clara, Highway 99, and the west side. Mr. Meisner pointed out that the Coburg Road route could link from Harlow Road to Gateway and Pioneer Parkway, a high Springfield priority, providing a loop connection that could be very important. He agreed that the process was one of sequencing routes rather than eliminating them. He agreed with Mr. Kelly's top priorities, saying he would make West 11th/13th a distant third priority. Ms. Bettman agreed with the priorities voiced by Mr. Kelly. She perceived that BRT along the West 11th/13th would be a commuter route that did not serve the immediate neighborhood, and that service would occur through neighborhood feeder routes. She disagreed with LTD's high corridor rating of areas with high residential numbers, saying that it should actually be looking at areas with high employment numbers, and focusing feeder routes on the residential areas. She thought selection of the 6th/7th/Highway 99 route would foster needed public investment in the corridor and spur redevelopment. She suggested the list of criteria include potential for redevelopment, wanted to see information on the City's projection's for future employment in the 6th/7th/Highway 99 area. Ms. Bettman agreed that LTD had overstated the significance of serving the fairgrounds. She felt it was a mistake to go as far south as 13th Avenue, given that TransPlan anticipated intense redevelopment within one-quarter of a mile. MINUTES--Eugene City Council September 12, 2001 Page 8 Work Session Ms. Nathanson noted the high ratings for the West 11th/13th route in terms of employment, planned nodes, and zoning, and expressed surprise that Mr. Kelly suggested it be taken off the list. She pointed out that the council had just decided to send the voters a ballot measure for alternative transportation options in west Eugene; those options included transit. She did not understand how taking the option off the list fit with that approach. She asked how people could be asked what alternative solutions they preferred if the alternative solutions that could be put in place quickly were now longer available. Ms. Nathanson asked what the council could offer citizens in terms of alternative options for west Eugene if Bus Rapid Transit was not available. She supported the Planning Commission's recommendation. Mr. Farr found Ms. Nathanson's arguments in support of retaining the West 11th/13th option compelling. He also believed that there was an argument to be made for the 6th/7th/Highway 99 route in terms of ease of build out. He also supported the Planning Commission's recommendation and wanted to retain all three options. Mr. Pap8 also supported the Planning Commission's recommendation, and said that he would likely support West 6th/7th/Highway 99 as the first priority, West 11th/13th as the second priority, and Coburg Road as the third priority. He believed the Coburg Road route would require another bridge crossing, and that would require further study. With regard to the fairgrounds, Mr. Pap8 said that there was activity year-round and at all hours of the day, citing the basketball and ice skating programs as specific examples. Ms. Taylor said that the community needed buses that stopped frequently and at community location such as the fairgrounds at night, rather than a system that passed by quickly. She was not convinced BRT would do anything good, and favored shuttle routes and more frequent service. She supported only the West 6th/7th/Highway 99 route only at this point, and called for more public involvement. Mr. Rayor liked the West 6th/7th/Highway 99 route and believed that it could be directed south toward the West 11th/13th route near Garfield Street. He also supported the Coburg Road route, but was concerned that the critical mass needed to support the system was still building in that area. Mayor Torrey found value in the 6th/7th/Highway 99 route and agreed with Mr. Rayor that it could be directed north or south at Garfield Street. He also wanted LTD to consider a BRT route that served Pioneer Parkway, Game Farm Road, Chad-Crescent, Coburg Road, Harlow Road, Garden Way, and Autzen Stadium; people would park at Autzen Stadium, and travel across the Autzen Footbridge on small buses. Mr. Kelly, seconded by Ms. Bettman, moved that the council recommend to LTD that the following two routes be immediately considered for Bus Rapid th th Transit: the West 6 /7 /Highway 99 route, with flexibility of use of the "Y," and the Coburg Road to the Chad-Crescent area route with possible link to a BRT line connecting downtown Springfield to the Gateway area. Mr. Meisner indicated support of the motion. Ms. Bettman also supported the motion. She said that LTD had included the industrial corridor west of Garfield in its ratings for the West 11th/13th route, but without that corridor that route did MINUTES--Eugene City Council September 12, 2001 Page 9 Work Session not have as high a concentration of commercial, office, and industrial density, whereas the Highway 99 corridor had 54 percent of the commercial office and industrial density. Responding to a request for clarification from Ms. Nathanson regarding what was meant by the "Y," Mr. Kelly defined the "Y" as including the West 6th/7th/Highway 99 route as proposed, plus a study of whether that route could be spurred to the west and south at that point. Mr. Meisner added that it was a means to get to West 11th Avenue. Ms. Nathanson acknowledged the politics of the opposition of the downtown neighborhoods to the West 11th/13th route; however, she opposed the motion not because she opposed the concept of using the "Y" but because she strongly believed the City needed to make a statement it was studying use of the central west Eugene area. Mr. Fart opposed the motion for the reasons voiced by Ms. Nathanson. He urged acceptance of the Planning Commission's recommendations. Mr. Pap~, seconded by Ms. Bettman, moved to call the question. The motion passed. The vote on the motion was 5:3; Ms. Nathanson, Mr. Fart, and Mr. Pap~ voting no. The meeting adjourned at 1:30 p.m. Respectfully submitted, James R. Johnson City Manager (Recorded by Kimberly Young) MINUTES--Eugene City Council September 12, 2001 Page 10 Work Session