An Open Letter to the Concord City Council

An Open Letter to the current members of the Concord City Council:

The development of the CNWS land is far too important a step in the life of Concord to be treated cavalierly. And the process for moving forward should be firmly rooted in respecting the voices of residents and community stakeholders. We join the more than 90% of hundreds of Concord residents who submitted public comments on August 21 opposing the selection of the Seeno group, and the community and labor organizations in Concord who expressed similar sentiments in a recent letter to the City Council:

“As you know, community stakeholders have spent years waiting for and working on this reuse project. Their voices and concerns deserve to be heard and heeded. This is not the time to rush to a deal or shortchange community engagement. While the housing, open space, jobs and other community benefits are desperately needed in Concord, now is the time to do this world-class project right.”

Here at CCA, we believe that those members of the City Council who supported instructing staff to open discussions with the Seeno group on an Exclusive Negotiating Agreement moved too quickly. We believe staff is moving too quickly by putting the next step – approval of that ENA – on the City Council agenda for October 26.

Process flaws are being overlooked

How have you moved too quickly? Serious process errors and flaws are being overlooked, and poor process makes for poor outcomes, poor policy, and poor government. There were omissions in the Seeno group’s Statement of Qualifications and the gaps in the process which, taken together, are the basis for doing the right thing now and terminating their participation. Specifically,

• City Code Section 3.10.070(e)(3) of the city code establishes that awards of contracts MUST consider “the character, integrity, reputation, judgment, experience, and efficiency of the bidder.” Facts regarding the character, integrity, reputation, and judgment of members of the Seeno group form an adverse legal and criminal record. An ENA is the award of a contract, even if preliminary in terms of process. The award of a contract without explicit consideration or mitigation of these facts and circumstances is, therefore, arguably, a direct violation of the City Code.

• The City Code also suggests – in language that is relevant if not directly applicable – that the quality of the bidder’s previous similar work should also be considered. The quality of work by at least one member of the Seeno group is a matter of direct negative experience for many in Concord.

• The RFQ process required the submission of financial information by each participant in a responding group. At least one member of the Seeno group declined to meet this requirement by the deadline so far as we are aware. We feel this should preclude the City from considering the group’s submission responsive, never mind actionable.

• Finally, it is baffling to us how what appears to be a serious potential conflict of interest in the staff lead on this work is not of more grave concern to the City Council. The salary of Guy Bjerke, Director – Economic Development and Base Reuse, was paid with funds provided by Lennar in the past and will be paid with funds provided by the Seeno group if they advance further in this process. While his interest in opening the wallet of a developer for the City’s benefit is laudable, there is almost no way his judgment can be credibly called unbiased. He is moving things quickly, by his own admission, so that funding for this project can be re-established with a contracted developer candidate. We understand his salary will be paid from that funding while he is leading negotiations on behalf of the city.

In the early stages of this process, we expect the staff lead to be a strenuous advocate for the interests of residents, and those interests will frequently be in tension with the financial interests of candidate developers. If the candidate developer is funding that person’s salary, how strenuous will that advocacy be? If not an actual legal conflict of interest due to carefully crafted language and structure, it just looks bad. Put someone else in charge of the analysis of master developer candidates, recommendations, and contract negotiation.

These are serious matters in two ways: first, they form a sound basis for not even considering the submission of the Seeno group, and certainly for changing the way staff analysis and recommendations are produced and the pace of the decision making. More importantly, similar concerns have been pointed out to you in public by the public as reasons NOT to proceed with the Seeno group. At least three of you are clearly not listening to the public, since you had other viable candidates but still chose the Seeno group. As one among you likes to point out if you aren’t listening to your constituents, who ARE you listening to? And why?

We have serious concerns about entering into a contract with the Seeno group, and we feel strongly that the most direct way to protect the City of Concord, its City Council and staff, and the entire CNWS project is to wrap things up with them and move on. Many hundreds of Concord residents agree with us.

Not sure how to get out of this mess? Here’s how

A group recently raised these concerns with Guy Bjerke, and he basically said he is just following your direction. One thing is clear: the buck stops with you.

Consideration of the Seeno group can and should be stopped. Direct staff to terminate further discussions with the Seeno group in writing. Pick a reason – their submission was non-responsive as of the deadline, consideration of the legal and criminal record of group member(s) was incorrectly excluded and precludes the award of an ENA. Or do it because the group, their submission, and their presentation were clearly not the best on August 21 or prior.

Or do it because the public has done their homework. You do rely on our votes, after all. Why not also rely on our judgment – the clear consensus of more than 90% of the hundreds of your constituents who commented for August 21, constituents who rarely show this level of agreement about anything? The only thing worse than making a bad decision is not having the courage to correct it at the earliest possible moment. This is that moment. A lot of voters think some of you made a bad decision on August 21. What do you want them to remember next June or November?

Put an end to further negotiations with the Seeno group, and move forward with one of the credible and responsive submissions. You don’t need to restart the process. Just make prudent choices right now.

Open up the process with another group, invite the public into a deep process of scrutiny, and listen to their input. And make sure the process allows plenty of time for that to happen. That’s a good process. And good process makes good government.