Pretty Sneaky
Up to Here
By Jenny Staff, Fri., Jan. 15, 1999
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But Up to Me now says it can make the move whether the city likes it or not. Here's the loophole it found: State law provides that the city has no authority on leases of less than one year, so Up To Me signed a 364-day lease for the same property that the council had previously forbidden it to occupy. The lease neither allows for, nor precludes, the possibility of an extension at the end of the (almost) one-year period. The two-sentence letter from Up to Me administrator Patricia Jennings informing the city of the new development is terse, but the smugness is easy to read between the lines: "the Up to Me facility... is exempt from Chapter 244 Texas local government code and the city council no longer has jurisdiction in this matter."
Councilmembers say Up to Me is violating at least the spirit -- if not the letter -- of the law. Since the new lease is renewable, the city may attempt a maneuver of its own in an attempt to bring the matter back under its control: charging that Up to Me intends to stay longer than a year. "It seems to me there's no convincing evidence that there will not be an extension" of the lease, said Councilmember Bill Spelman. "They haven't met the burden of proof."
If the city wants to challenge Up to Me's exemption from the law, it has to take the matter to court, but the outcome of such an action is uncertain due to lack of legal precedent, said city attorney Marty Terry. "We don't really have any good experience under our belt about how this statute works," she said. The council will discuss the possible legal challenge in a one-hour public hearing at 5:30pm tonight, Thursday, Jan. 14.
It is unclear whether Up to Me is doing itself any favors by forcing the move to Webberville. Spelman noted that the main reason the Webberville site was so attractive was it would allow Up to Me to expand the size of its facility. The new location would have 104 beds -- 20 more than its current facility. But Up to Me could legally use only about 80 of those beds due to zoning restrictions requiring a minimum number of parking spaces for each bed occupied. To build the extra parking, Up to Me would have to apply to the Planning Commission for a zoning change -- a request likely to be ill-received given the group's current relationship with the city.
So why not just bolt the deal? Up to Me started paying rent on the new facility on January 1, so they could be stuck paying double rent for up to a year if the Webberville Road move doesn't go through and they can't break the lease. "They negotiated a lousy contract, with no regulatory out clause," said Spelman. "They locked themselves into a box."
Spelman thinks Up to Me's best chance -- though it's also a long shot -- lies in convincing the neighborhood to drop its opposition. At the November public hearing, the council ordered a mediation process between Up to Me and the neighborhood. The process was scheduled to begin this month, but the recent developments will likely cast a shadow over the effort. "I'm really worried that the landlord and his lawyer have poisoned the well," Spelman said.
Councilmember Daryl Slusher agrees that Up to Me's legal hairsplitting has made future harmony difficult: "I consider (using a technicality) to be bad faith. I don't think the way to enter mediation is by playing 'Gotcha!'"
Up to Me administrator Patricia Jennings declined to comment.
Preferred Seating
At last Wednesday's work session, the council approved the expenditure of $119,979.48 for enough metal chairs and tables to seat 160 people at the new airport food court. According to new airport execs, they are just what the airport needs -- but at a little over $500 for each basic chair, are they the best we could get for the money?
Four members of the Airport Advisory Board didn't think so and voted against the contract. In their communication to the council, the dissidents wrote that "most board members felt that the presentation of this purchase contract was somewhat disingenuous. This was, in effect, a justification for a sole source contract, not an open bid as it was made to appear."
The process did seem designed to take the "competitive" out of competitive bidding. AAB member and former chairman Bob Binder said that after the job was posted, the city received requests for information from no fewer than 92 entities wanting to bid on the contract. What the interested companies received from the city were some very specific specifications for a certain make of "Knoll"-brand cast-aluminum furniture, down to an exact catalog number, "or its equivalent." In addition, the preferred company was required to have five years' experience making the furniture.
Out of the original 92 companies, only two submitted proposals. One was the maker of the furniture specified, The Shelton Keller Group. The other was a competing company that made an "equivalent" chair for a lower price. But the competitor had been making the furniture for only three years. Since The Shelton Keller Group was the only company that met all the terms of the bid specifications, their chairs were chosen.
"This is DOD [Department of Defense] stuff," said one council watcher. "Like the $800 toilet seat."
Nonetheless, the AAB approved the contract 6-4, reasoning that the chairs were compatible with the airport terminal design which had already been approved. AAB members also noted that the bid was still $80,000 under the allotted budget for food court furnishings. In addition, members said, The Shelton Keller Group is local (its offices are on East Cesar Chavez), and the chairs (which match those in the Austin Convention Center) were endorsed by civic architect extraordinaire Larry Speck, who worked on both the airport and Convention Center projects.
But Binder still feels the city could have done better: "With all the food courts there are in the United States, there have got to be lots of different kinds of furniture we could use. It doesn't have to be a linen table cloth, but I don't want to eat off a metal table in an airport. Other surfaces could better reflect the nature and character of Austin, which is one of our overriding missions [for the airport]: As soon as you get off [the plane], you know you're in Austin, and you like it." In that case, perhaps mismatched sets of thrift-store bargains would be more appropriate.
SOS & CSC: Back Up Front
Two important back-burner issues will move to the council's front burner in coming weeks.
Council approval of the Forum PUD, the impervious-cover clumping, mitigation-tract-providing case that the council passed on first reading in late November, will be back soon for second and third readings. Rumor has it that the SOS Alliance is still working hard on its prime suspects for defection -- Slusher, Spelman, and Beverly Griffith -- and that one or more of the trio is ready to crack. All three councilmembers say they have not made a decision on whether to support the PUD. Slusher said he is working on getting Forum and SOS leaders together to try to reach an agreement. And to SOS's most vexing accusation, that approving the Forum would allow a flood of developers offering SOS-"improving" deals to the council, Slusher says that's up to him and his cohorts on the dais to decide. "We're in charge of that," he said.
As for CSC, the Christmas holidays slowed down the horse trading a bit, but expect more information to surface soon. City staff will brief the council on the deal's progress at its Jan. 20 work session, and Assistant City Manager Toby Futrellhas reportedly readied a presentation of the city's case for any neighborhood association that desires it.
A Giving Mood
The council was in a generous mood last week, approving a variety of grants for local programs as well as several sizable city contracts. Among the items approved last week:
- A $50,000 city grant to Smart Grrrls for services to at-risk middle school girls.
- A $52,425 city grant to AIDS Services of Austin for health care services.
- $100,000 to the University of Texas to evaluate the success of Austin's community policing program. The funds come from a $1 million Department of Justice grant awarded to the city.
- $890,000 for the design of the long-awaited Lamar Street footbridge, first approved by Austin voters as an extension to the existing bridge in 1984. HDR Engineering will design a version of the freestanding "double curve" bridge chosen by the council.
- $45,000 in additional funding for an environmental study of potential landfill sites, to aid the city in its continuing quest for a place to store its "putrescible waste." The total contract is now worth $95,000.
- A $221,000 contract for construction of the Plaza Saltillo project on East Fifth. Also approved by the council were the Urban Renewal Plans for East 11th and 12th streets.
This Week in Council: The hearing on the Up to Me quagmire is set for 5:30pm, but if you're a fan of interminable, acrimonious public hearings, you'll have to look elsewhere for kicks. The council has limited debate to one hour (30 minutes for each side). The council will also vote on the ordinance enacting the East 11th and 12th Streets Urban Renewal Plans.
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