McEuen tussle

COEUR d'ALENE - Team McEuen delivered everything its contract promised, and allegations asserting otherwise are wrong, the city's parks department said last week.

After retired management consultant Frank Orzell complained that criteria in the $125,000 contract wasn't met, parks director Doug Eastwood refuted many of those claims at his City Hall office last week, saying the designers completely fulfilled the original contract.

Orzell told the City Council on Aug. 2 that it hadn't been fulfilled, and therefore $60,300 in two new contracts for topography and traffic study work related to the project were unnecessary expenditures.

His nine complaints ranged from undelivered bid estimates to a missed deadline, which therefore means the designers should be financially penalized per the contract. Orzell also wrote My Turn columns about the issue in The Press, and called the alleged lack of oversight a "symptom" of less than ideal management.

"This is not about McEuen Field," Orzell said. "It's about the process."

Eastwood disagreed. He said everything had been done by the book.

He pointed to two binders inside City Hall full of documents, paperwork and more pertaining to the McEuen Field reconstruction project.

"All the components are in there," Eastwood said. "That's there, it's been delivered, it always has been."

The Press reviewed the contract and complaints and sat down with Orzell and Eastwood. Here is what it found:

• Complaint 1: Team McEuen did not deliver per the contract: "An estimate to create the design/construction/bid documents for the reconstruction of the McEuen Project based on the approval of the final plan."

Findings: This is incorrect. The team did deliver an estimate to create these components, itemized over roughly 40 pages for each amenity proposed for the park.

For example, Front Avenue improvements has nearly 70 associated costs itemized out. The latest draft of these estimated costs was given to the city April 11.

• Complaint 2: Team McEuen did not deliver per the contract: "An estimate of project administration including bid administration and project oversight which will include weekly on-site meetings with Team McEuen, general contractor and city staff."

Findings: This is incorrect: These estimates were included in the itemized lists as addressed in the first complaint.

• Complaint 3: Team McEuen did not deliver per the contract: A "reconstruction time line starting from bid advertisement to completed project dedication."

Findings: This is incorrect. The time estimates are itemized over nearly 40 components of the project in the binder. Team McEuen also told The Press during the planning process that the timeline would be 18 months. That timeline was reported in several Press articles on the project, including an April 15 article about the plan's estimated costs.

Orzell said he had never seen the binder with the above information when he met with Eastwood, while Eastwood maintains that he showed Orzell. Orzell said perhaps it was a miscommunication.

• Complaint 4: The scope of the project should not have included Tubbs Hill since it was outside the boundary of the project per the map outlined in Exhibit B in the contract.

Findings: This is incorrect. Exhibit B shows a map of the park, but Exhibit A, the McEuen scope of work, states that the project should include "the park and surrounding area identified in Exhibit B." Tubbs Hill is adjacent to the park, and classifies as able to be included under that language.

• Complaint 5: No certified estimate, of the work completed could be produced:

Findings: This is incorrect. Monthly progress invoices were submitted to the city, and Eastwood signed off on them before payments were made to Team McEuen. The payment sheet is a part of the file, with payments beginning Sept. 27, 2010, and ending May 17. Orzell said the steering committee should have signed off on the invoices to certify them. Eastwood was the lead on the contract and met regularly with the team on progress, city officials said, therefor was given the responsibility of signing off of them.

• Complaint 6: The 5 percent hold-back on each payment to Team McEuen stipulated in the contract was not made.

Findings: This is true. The city never withheld 5 percent of the payments to Team McEuen, as stipulated in the contract. Eastwood said this hod back-stipulation is typical with construction jobs to ensure timely completion than professional design service contracts, which the McEuen contract was. Eastwood said the stipulation shouldn't have been included in the professional services contract, and both sides, the city and the designer, agreed not to adhere to that term. The sides did not amend the contract to reflect this decision because liability issues didn't arise with the change, the city said.

City Attorney Mike Gridley said contracts don't need to be amended in writing when the changing components do not affect liability issues. Contracts typically have an administrator, in this case Eastwood, who is given a certain amount of latitude. Amending the contract in writing must be approved by the Mayor and City Council. Amending every small detail would bog down the process, Gridley said, so the contract administrator can agree with the contracted party on smaller terms when liability issues don't change.

Orzell labeled this as cutting corners, and said any change in a contract should be reflected in writing by amending the original deal.

• Complaint 7: The final payment to Team McEuen was made on May 17. Yet the contract states final payment "shall be made 30 days after completion of all work and acceptance by the City Council." The City Council officially adopted the design plan May 24.

Findings: Eastwood said that the "acceptance by the City Council" does not refer to the May 24 adoption. Team McEuen would have been paid regardless if council approved or rejected the final plan. Acceptance by council means that the City Council recognized the work as complete and was ready to vote on it. It accepted the work as completed in mid-April, and requested the designers schedule one final open house detailing the project for the public, which was held Thursday, May. 5. It originally scheduled the vote for its regular meeting May 17, but rescheduled it for a special May 24 meeting in order to change venues to accommodate the large turnout.

• Complaint 8: The contract was signed in July of 2010. The designers were given a 180-day deadline, per the contract, to complete the work. If it failed to meet the deadline, the contract called for the consultant to pay $250 for each day it was late. The 180-day deadline would have then come due in January. If the work was done by May, the designers should have been fined accordingly.

Findings: Eastwood said he approached the design team early in the process when he realized that it was going to exceed the timeline and require more meetings that originally estimated. The Team agreed to do as many public meetings as it took, without charging for extra time. The meetings went from 10 to around 50. They did not amend the contract to reflect it in writing because both parties agreed. Accordingly, the city did not exercise the fine clause for the same reason.

Gridley referred to the liability rule for this complaint, similar to that in Complaint 6.

Orzell maintained that each change should be documented with amendments, and pointed to the roughly professional services contract, complete with amendments, Kootenai County signed with Kending Keast for a county unified development code as an example. Orzell called this lack of documentation a symptom of poor management.

• Complaint 9: The total amount of the contract is $125,000 and does not provide for any expense over that amount. Yet the $6,653.17 was reimbursed to Team McEuen for travel expenses related to the project.

Findings: True. The contract was exceeded by $6,653 to reimburse Team McEuen for travel and site visitations associated with the design. Eastwood and Gridley said relatively small additions that qualify for reimbursement can be agreed to without amending the contract. In this case, the contract was not amended to reflect this because the paying parties who split the cost, Lake City Development Corp. urban renewal agency and the city agreed to the additional expense. Also, the the parks department has a budgeted amount each year for park design costs, which comes from park fees and other self-generating revenues, and Eastwood allocated $3,300 of that roughly $30,000 fund in fiscal year 2010-2011 to reimburse the design team on behalf of the city after city officials verbally agreed he could do so.

Orzell maintained that additional expenses should have been documented with amendments.