The thing about hostilities is, once they start, it’s hard to repair the damage. Our hope is city officials will try to fix things, or at least offer taxpayers a full explanation of how and why this happened.I'm sure that city officials can "fix things" - especially if the California Space Center will help to repair the damage.
But we can be much more specific, can't we, about what it means to "fix things"?
Some process observers believe that "things" are already irretrievably broken. They blame the CSC for carelessly - or perhaps defiantly - refusing to meet its deadlines, check its lists, and submit its paperwork. According to the editorial quoted above, the deadlines and requirements "seem fairly straight-forward."
Actually, no. It's tricky. The requirements are subject to different interpretations. The CSC and the city staff aren't even using the same language to describe the requirements. (Read that sentence again.)
Here's what happened.
The CSC submitted a package in response to the city's Request For Qualifications (RFQ), which was due October 31, 2014.
On February 3, 2015, city staff reported to the city council that the CSC's submission was incomplete. The staff recommended against any further negotiations. However, the council voted 5-0 to reject the staff's recommendation and proceed with an Exclusive Negotiating Agreement (ENA). Factors in their decision to proceed (as discussed at the February 3 meeting): public support, the lack of any other responses to the RFQ from other developers, and the lack of any risk or financial impact to the city.
Based on the council's direction, the CSC and the city staff worked together to come up with a draft ENA, which was presented to the city council on May 19. Ostensibly, both sides supported the draft. Unfortunately, a serious stumbling block was built in, and a disagreement was papered over in order to reach an "agreement."
The CSC requested the inclusion of "Addendum #1,"which began:
See below as to how the CSC can reasonably provide additional information to supplement the RFQ submittal dated 10-31-14. Note that the necessary Consortium format to enable a project of this type to succeed in both its construction and ultimate profitability, will require appropriate consideration to match the RFQ requirements to the qualifications of the consortium members.... (see ENA, including Addendum #1, here)In other words, the CSC wanted to go on record with its objection to the RFQ requirements, and wanted to offer alternative ways to address said requirements.
When the draft ENA was submitted to the city council, Addendum #1 was explained in staff's oral presentation as follows:
The California Space Center group asked that we use the addendum instead of the language that we had put in there regarding the RFQ and the documents that we asked for, and to go ahead and move forward and reach an agreement we included the language the city had proposed and the addendum that the group proposed in order to move this forward. So that's why you see the addendum in addition to the language the city requested. (my emphasis, see the video here)"Straight-forward"? Not so much. Let's take a quick look at the wording of the ENA, regarding the 30- and 60-day deadlines.
Within sixty (60) days after the effective date of this ENA, CSC shall provide to City’s Economic Development Director/Assistant City Administrator the attached list of documents (Addendum #1) supplementing CSC’s response to the RFQ, dated October 31, 2014. Within thirty (30) days after the effective date of this ENA, CSC shall provide to City’s Economic Development Director/Assistant City Administrator all the required information CSC did not provide in response to City’s Request for Qualifications, dated July 2014, (the “RFQ”) and described in the staff report and its attachment provided to the City Council for its meeting of February 3, 2015, regarding CSC’s response to the RFQ, dated October 31, 2014. (staff report is here)See the problem with this? Different language, different interpretations of how the CSC might be able to meet the RFQ requirements, built right in to the agreement as though compatible. At the 60-day milestone, the CSC would be allowed to respond using the CSC interpretation of the requirements (Addendum #1). But wait - first the CSC would have to get through the 30-day milestone. And for the 30-day milestone, the CSC would need to use the city staff's original RFQ language. (Isn't it weird that, in the above parapraph, the 30-day milestone is explained after the 60-day milestone?)
Recipe for disaster. Toss in... a lack of communication. ... a checklist-loving city staff who never wanted the ENA in the first place. ... a maniacally optimistic CSC leader who sees the ENA as a low priority.... a closed city council meeting and a hasty decision with no input from the CSC or the public, an adversarial Notice of Default....
Sigh.
How to repair the damage?
First, resolve to get past the hostilities. Mistakes were made. Communication between the city staff and the CSC has been completely dysfunctional. The city (staff and council) and the CSC must fully commit to the ENA process, agree to communicate with good will and negotiate in good faith.
Second, the city council needs to get involved and exercise some leadership. The city staff has been completely fixated on one interpretation of the RFQ requirements, and according to the CSC, that interpretation is unreasonable and unworkable. The city council will need to decide: what information does it actually need, at this point in the ENA process? Let's be clear: it is not the staff's job to determine whether the CSC has met the 30- and 60-day milestones. The staff's job is to advise; it is the council's responsibility to DECIDE. While we're at it, it's clear that the CSC will need additional time to meet the coming milestones. The CSC and the city council must have a frank conversation about deadlines and reach some agreement that maximizes the CSC's chances for success.
Third, and this probably goes without saying (but perhaps not): all of the city council's discussions and decisions about the ENA should happen in open session and with public participation.
Yes, the city council can fix things. The CSC must take its share of the responsibility for poor communication and follow through. And we the public? ...we'll be watching very carefully, and handing out lots of free advice. Ready? Set? Go.
