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Bakersfield Council Flips Course, Sues Bullet Train Authority

05/26/2014

Bakersfield Californian, The (CA)

May 26 –The city council that just voted to sue the high-speed rail authority to keep the bullet train out of downtown is the same council that once fought to bring it there.What a difference 15 years makes.In 1999, Mill Creek and the Padre Hotel were years from being revived but Truxtun Avenue was waking up.With the city’s financial help, a Holiday Inn Select had sprung from the rusty steel remains of the Clarion Hotel .

Centennial Garden still had that new arena smell, and the dream of high-speed rail promised to bring thousands of weary travelers and tourists flush with cash to a downtown that sorely needed them.

On June 30 of that year, the Bakersfield City Council unanimously approved Resolution No. 97-99 “supporting a downtown location for the high-speed rail station.”

On a 7-0 vote, the council challenged the California High-Speed Rail Authority’s recommendation to locate the station about seven miles west of downtown.

Among its 13 whereases, the resolution noted “a station located on the outskirts of town will have a negative impact on the City’s uniform growth patterns … ” — but a downtown station could be easily reached and “have greater accessibility to government and other public service facilities.”

City Manager Alan Tandy told The Californian on July 16, 1999 , that a staff member would carry that resolution north the following week.

“We, along with the DBA and the chamber, have endorsed a downtown station,” Tandy said then.

The next week, then-Mayor Bob Price and Bakersfield architect David Cross testified at an CHSRA meeting July 20-21, 1999 .

Price told the CHSRA board he believed “downtown locations are key to the success of high-speed rail,” according to meeting minutes.

“Once you enter any metropolitan area, you can’t skip any of the other metropolitan areas,” Price had told The Californian on July 16, 1999 .

Today, council members, city staffers and business leaders wish the bullet train would miss downtown. This past Wednesday, the council voted 6-1 authorizing the city attorney to sue the rail agency.

IN THE CROSSHAIRS

The train will be elevated during much of its journey through Bakersfield , according to Planning Director Jim Eggert , who pointed out it will have to cross such landmarks as the Westside Parkway on its journey southeast to downtown.

The train’s current alignment will cut through significant city and private properties including McMurtrey Aquatic Center, the city’s Municipal Services Corporation Yard, Bakersfield High School , Bethel Christian School and Mill Creek .

From its intensive care units and operating rooms, doctors and nurses at Mercy Hospital downtown could one day be able to wave at bullet train ticketholders, according to CEO Bruce Peters .

“It is elevated at the height of our ICUs and our ORs,” Peters said. “It will be 88 feet from our door. Eighty-eight feet is barely to the — it’s short of the 30-yard line on a football field. Can you imagine a train coming by at over 100 miles per hour, the noise, the vibration?”

Mercy officials have reached out to the rail authority “multiple times over the past couple months,” Peters said and is waiting for a response.

CHSRA Deputy Director of Public Affairs Lisa Marie Alley said she believes the agency met with hospital officials last month.

CITY PROJECTS IN THE WAY

The train will still be elevated when it passes Mill Creek , the once-lowly irrigation canal that now features gardens, a park, and a real mill wheel.

The idea that one government entity can give and another can take away is what bothers City Attorney Ginny Gennaro .

“How is that possible that we could get that money and redevelop an area and then another project comes through that’s being developed by the government and rips it out?” Gennaro asked. “To me, it is the epitome of government gone bad.”

The bullet train will also impact Bakersfield High and parking at Rabobank Arena and McMurtrey Aquatic Center.

However, City Manager Alan Tandy said the city’s Municipal Services Corporation Yard would be hardest hit. That’s the well from whence all its “outside services” flow — including street maintenance, fleet vehicles, trash trucks.

It would be difficult to find another place as large and centrally located, officials say.

“If you live in the city, we’ll pick up your garbage three years from now — can you just hold onto it?” Tandy joked darkly in a recent conversation with a reporter. “We told them, ‘You can’t touch it,’ and they ran right over it. That’s one example among several of what turned them.”

CHANGING OPINIONS

The “them” is the Bakersfield City Council , which voted to sue May 21 . Gennaro said the city’s lawsuit will be filed by June 6 and could cost $350,000 to $500,000 .

It will challenge the rail agency’s environmental report for the Fresno – Bakersfield route, approved May 7 , which Tandy has said is deficient and badly prepared.

Ward 6 Councilwoman Jacquie Sullivan was on the council in 1999 and is its only member to have voted both times.

She said 15 years ago, the bullet train was just a concept, one the council thought could help a struggling downtown.

Tandy agreed in a recent interview and said in 1999 the train wasn’t funded and “was kind of a phantom.”

With downtown reviving, Sullivan said, the council has changed its mind.

“We don’t need it and now we don’t want it,” she said. “Things have changed and now we need to protect our downtown.”

Ward 7 Councilman Russell Johnson said he’s worried the state will fund the train on the backs of its cities.

“The fact that their funding issues continue to be a major issue — the state is only going to have a number of opportunities to go and get that money, and those are going to be from local governments,” Johnson said.

Ward 1 Councilman Willie Rivera cast the lone vote Wednesday against suing CHSRA. He said the rail agency needs to do a better job working with Bakersfield — but questioned the council’s selectiveness in spending money on transportation.

He supports the rail project but thinks the agency needs to do a better job communicating.

“When you consider that members of the Bakersfield City Council have had absolutely no problem allocating hundreds and hundreds of millions of dollars to build freeways, to then say connecting cities across the state with high-speed rail is not smart and doesn’t make sense is a little inconsistent in my mind,” RIvera said.

RAIL AGENCY’S RESPONSE

Alley, the rail agency spokeswoman, said exact details such as which properties would be affected would not have been available until the release of the project’s draft EIR in 2011, and the revised draft the following year.

She said the rail agency met multiple times with Bakersfield officials before that to discuss “what things would look like,” including where the train would be elevated and where it would be at-grade.

“I think that in any big project you’re going to have controversy and adversity, but we’re working through those one city at a time,” Alley said. “I think it showed a lot that our board took action and passed the resolution as they did. I think that’s another good thing that shows the commitment, that we’re working together … .”

The resolution, which the rail agency also approved May 7 , said it will give Bakersfield at least 60 days notice before starting construction south of 7th Standard Road ,

OTHER INTERESTED PARTIES

Retired city Treasurer Bill Descary addressed the council May 7 on the bullet train EIR and on May 20 asked the Kern County Board of Supervisors to consider filing its own CEQA lawsuit.

Kern County Counsel Theresa Goldner said the county is still deciding what to do.

“It would be a very expensive endeavor, so we would want to make sure it was something that was likely to be successful,” Goldner said, estimating a lawsuit’s cost would be at least $350,000 .

The county is already party to a lawsuit challenging the rail agency’s issuance of bonds. Having lost, the CHSRA has appealed that case to the 3rd District Court of Appeal in Sacramento .

Another local agency, Bakersfield’s Downtown Business Association , supports having a bullet train station downtown — but Chairman Kevin Bartl said it’s a difficult choice.

“In a perfect world, the downtown would be your ideal location, but that being said there’s already structure here. There’s not vast tracts of open land,” Bartl said. “We would like that seriously to be downtown, but we think there has to be a plan to make up for the work that’s going to be done and what it’s going to take out.”

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(c)2014 The Bakersfield Californian (Bakersfield, Calif.)

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Architecture 101

MANAGING EXPECTATIONS DURING CONSTRUCTION 

Adapted from AIA Professional Practice Handbook 2007 edition

By Ronald A. Slater, Attorney-at-law

As the architect, builder or owner of any project whether completed or not, each party has a due diligence to perform.

The architect is required under AIA Contract forms to hold sway to a neutral third party position.

The architect can be held liable for damages when the contractor is able to show bias or preference to their client. In other words, improper representation of contractual obligations as the architect may cost you real dollars.

Silence on the part of the architect when a dispute is present can also be considered concealment. Many architects whose only concern may be the exposure of the construction documents as incomplete can be held accountable.

Don’t be caught in the middle of a dispute with incomplete drawings. When your drawings are incomplete, take responsibility. Don’t sit back and watch as things unravel. Be a participant in the solution even when your instinct says to run the other way. Prepare the list of drawings that were incomplete or inaccurate and present it as fact.

If your office provides conference notes and those notes are disputed by any other party present at the meeting by law those notes are (act(s) of fraud are grounds for revocation of license) considered not ratified nor endorsed until they are revised pursuant to the notations provided by the objector. Conference notes are not deemed ratified until a period of three days has elapsed without objection from any one of those in attendance. Signatures to this effect are generally required on the notes themselves, and email has become widely acceptable form of conference note endorsement, or dispute. It is the architect’s duty to revise the conference notes to include the objections as noted.

Witholding pay requests and failure to certify funds in a timely manner is a big ticket liability that most architects miss completely.

Contractors who make demands for remuneration do so with a large degree of concern for the project but also for payroll. As the job progresses, cash flow becomes an issue when the architect begins to slow the approval process. Many times the architect acts as a buffer for the owner who says: “slow these guys down they’re going too fast, I can’t comprehend everything that’s going down.” This can be a huge problem for the contractor as things generally are tied together. As one trade depends on getting paid so they can complete a phase then another is relying upon them and so forth. When you start to monkey with that process you begin to strip away the rights of the contractor to control the progress of the work. To circumvent this, many architects invent petty arguments and document the work as non-conforming with a picture from the archives (usually out of date, and out of context.) Don’t do this. 

Most contractors today take continuous video feeds of their project(s) and keep meticulous time cards and hours for each and every task on the job. If you’re there for the first time in three months and claim there’s nothing been done, you’re making a clearly fraudulent representation about the work. (Back to that third party position thing.) Contractors today are far more educated, some are even licensed architects themselves with far more experience than you may have. Don’t get lured into that amateur trap with bogus quality statements and complaints which in reality are partisan excuses to not pay the bill on time. Timing in construction is becoming or is already the hot button for the quality vector. Almost 95% of all construction delays are found to originate at the office of the payroll administrator in the office of the architect or construction manager / administrator.

The age-old adage that contractors hate architects probably will never go away. The relationship of one person having control over another and that person not really caring or knowing the damages they’ve wrought can only be to blame. Unless you are an architect who is a competent builder, and you are on-site every day, even then it is impossible for you to know what’s going on. To be a better architect you need to open yourself up to the possibility that your contractor probably (definitely, he’s there all day, every day.) knows more than you do.

Also by creating a set of plans which are construction friendly i.e. complete with all pages, schedules, and clear specifications ahead of the bid date you will save yourself and the contractor, the owner and the city an immeasurable amount of financial stress. Be the boss, tell your client you’re not ready to go into construction if that’s the case. 

Be aware that allowing the owner to bring in another party to complete the work will absolve the contractor of any liability and will void the warranty. While your friends may think otherwise, bringing in a third party as constructor violates many provisions of the law. Most importantly it suggests willingness to waive the contractor’s rights. Doing so without the contractors consent in writing definitely violates conditions set forth in the AIA document A201 The General Conditions of the Contract for Construction. This means that you the architect or the owner agree to void the warranty provisions of the contract and will leave you without recourse upon future warranty applications. This is true even when you may believe (erroneously) that the contractor has no rights due to financial constraints to which you as the architect or construction manager / adviser may (probably) be to blame.

It is advisable that if you enter into a contract to offer construction management services to an owner during construction then you should send a copy of that agreement to the contractor. Most often a contractor has no need of these “services” and will need to know that you present (by virtue of your existence) an unwarranted level of willful misrepresentation and add significant amounts to the bid to cover the added expenditures of late nights responding to your (sophomoric at best) memos, pay request denials and other self-important, self-sustaining and utterly (to him) wasteful diatribes unrelated to the course of construction in any real or imagined way. At the very least he will need to know what you expect from a paper trail to satisfy your billing statement.

Truth be told this is how architects are perceived by the people who do the work. It’s a no-holds barred competition of fact vs. fiction, tangible vs. intangible, and it’s a tug-of-war that has been going on since time in memoriam. Add to this, owners want the best possible deal around and they’re paying you to get it. But the real trouble is, you may be the cause of the delays. By clinging to ideals which are insignificant to the outcome, failing to bend to reality when opportunity has long been exhausted, having unclear plans and specifications, giving verbal orders in the field which conflict with the drawings, making unwarranted negative comments to the owner, all add up to a hashtag of negative expectations.

It is up to the architect to prepare the road map to final completion, not to interrupt, cajole and circumvent progress. By taking sides and acting like a champion to only one party you may be throwing the entire project up for litigation. Only a very few select contractors will have the fortitude to withstand the delays and dilemmas caused by such causal treatment and analysis. Only a very few elite owners will see through the quagmire you create and benefit by default.

The days of owners abusing their relationships with contractors by using their architects to conceal, manipulate and deride progress via quality referendums are quickly becoming prosecutable offenses which may cost you your license. Don’t fall into that amateur trap. 

Contributing author Ronald A. Slater, Attorney-At-Law is also available to consult if you are experiencing difficulties in any area of practice or construction. Contact raslater@aol.com.