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Ann Arbor City Council Newsletter (January 22, 2023)

Jan 22, 2023 | Newsletter

Hello neighbors!

Welcome to my Ann Arbor City Council newsletter, where you can connect with primary sources to understand the work of your local government. My goal is to provide clear explanations of all the issues your elected representatives will be discussing at their next meeting and alert you to local policy and decisions that have been assigned to unelected Mayoral appointees.

This week’s regular agenda includes only three items: designation of a historic district, settlement of litigation, and approval of an amicus brief to be filed with the US Supreme Court. The consent agenda includes a few items of note: a contract for rehabilitation of the East Medical Center bridge, amendments to the 841 Broadway Development Agreement, and a contract for water main and resurfacing work on South Main.

I wrote previously about plans for improvement of the East Medical Center Bridge:
https://a2elnel.com/post/e-medical-center-bridge-update-feb-2022

For more about the contract for water main work and resurfacing on South Main, see my “Additional Thoughts” section below.

In Case You Missed It…

This week, I recorded two meetings that were open for public attendance but would not have been available for people to view later. If you have any suggestions about public meetings that should be more accessible via recording, let me know!

You can subscribe to my YouTube channel to be alerted to video updates as I share them: https://www.youtube.com/@a2elnel

Ann Arbor City Council Meeting Agenda

Below is my summary of issues on the City Council Agenda this week, with links to more information about each of them. If you have comments about any of these issues, you can email all of Council at CityCouncil@a2gov.org

Ann Arbor City Council Meeting
Monday January 23, 2023 7:00PM
Ann Arbor City Hall (2nd Floor)
301 E Huron St, Ann Arbor 48104

The full agenda (including a link to the latest published PDF agenda, and instructions for dialing into the meeting) is on the A2Gov Legistar website:
https://a2gov.legistar.com/MeetingDetail.aspx?ID=1062164&GUID=8A38ED22-2780-41A0-BA8E-20C319D63399

City Council meetings are broadcast live by CTN on Comcast (channel 16) and AT&T (channel 99) and online at a2gov.org/watchCTN
Meetings are also streamed live on the CTN YouTube channel:
https://www.youtube.com/user/ctnannarbor

How to reserve public comment

People that wish to comment at a City Council meeting must sign up with the City Clerk’s office in advance. Speakers are allotted 3 minutes, with the first 15 speakers allowed to speak in a 45 minute session near the beginning of the meeting. Remaining speakers will speak at the end of the Council meeting. Public comment can be made either in person or remotely via phone/Zoom audio.

To sign up for public comment, please go to or call the City Clerk’s Office at 734-794-6140 on the day of the meeting between 8:00 AM and 5:00 PM. At 1:00 PM, all speakers that have signed up are randomly ordered in “priority groups”. After 1:00 PM, speaking times are granted on a first-come, first-served basis. No new speakers will be added to the list after 5:00 PM. For more information, visit the City Clerk’s webpage about electronic meetings, section “City Council Public Commentary Time”
https://www.a2gov.org/departments/city-clerk/Pages/Virtual-Meetings-.aspx

Questions to the Agenda

In preparation for a Council meeting, Council members can ask questions of staff about scheduled agenda items. Questions must be submitted by noon on the Wednesday before a Council Meeting, and answers are returned the next day (Thursday) by 5pm.

AC-1 (23-0106) Agenda Response Memo and eComments – January 23, 2023
This agenda item has a PDF attachment with all questions raised by Council Members, and the answers provided by staff.

Communications from the Mayor

There are no Mayoral appointments on the agenda

Consent Agenda

Below is the list of items included on the Consent Agenda. If no one on Council specifically requests that an item be pulled for discussion, the whole of this list will be approved in a single vote.

CA-1 (22-1932) Resolution to Approve a Construction Contract with C.A. Hull for the East Medical Center Drive Bridge Rehabilitation and Widening Project ($9,657,770.26)

CA-2 (22-1934) Resolution to Approve a Professional Services Agreement with Fishbeck for Project Management and Construction Engineering Services for the East Medical Center Drive Bridge Rehabilitation and Widening Project ($925,367.00) (RFP 22-77)

CA-3 (22-2119) Resolution to Approve a Construction Contract with Bailey Excavating, Inc. for the South Main Street Water Main Replacement and Resurfacing Project ($5,742,710.73) and to Appropriate $2,811,000.00 from the Street, Bridge, Sidewalk Millage Fund, $436,000.00 from the Stormwater Fund, $46,000.00 from the Sewage Disposal Fund, $44,000.00 in AAHC Funding, and $119,000.00 of Funding from the Downtown Development Authority (8 Votes Required)

CA-4 (22-2130) Resolution to Approve Contract Amendment Number 1 with WeCare Denali LLC for Operation and Management of the City’s Compost Facility for a 3-year Contract Extension, with an Option for Two 3-year Renewals (Estimated Cost $953,337.61 for the Initial 3-year Contract Term: $297,795.24 for Year 1, $317,486.86 for Year 2, and $338,055.50 for Year 3)

CA-5 (22-1927) Resolution to Approve a Professional Services Agreement with Henry Ford Health System d/b/a Henry Ford Health for On-Site Occupational Medical Surveillance Services ($90,000.00)

CA-6 (22-2121) Resolution to Approve a Purchase Order to The Ultimate Kronos Group (UKG), Inc for a Learning and Development Management Module within the UKG HRIS System FY2023 – FY2025 ($110,462.00) (8 Votes Required)

CA-7 (23-0003) Resolution to Accept a Grant of Easement for Watermain from Sartorius Bioanalytical Instruments, Inc. at 3874 Research Park Drive (8 Votes Required)

CA-8 (23-0043) Resolution to Approve Deficit Elimination Plan as of June 30, 2022 for the Major Grants Fund (00MG)

CA-9 (22-1988) Resolution to Approve First Amendment to 841 Broadway Development Agreement

CA-10 (22-2131) Resolution to Approve Street Closings for the Shamrocks and Shenanigans 5K Run/Walk – Sunday, March 12, 2023

Public Hearings

Anyone wanting to comment on these issues may speak for 3 minutes, without having specifically reserved time. Issues subject to public hearing will also be up for a vote by Council later in the meeting.

There are no public hearings on the agenda.

Ordinances – Second Reading

In order to amend the city code, Council must vote to approve the change, via ordinance, at two Council meetings. The following proposed ordinances were approved at a previous Council meeting, and are also subject to a public hearing as listed above.

There are no ordinance second readings on the agenda.

Ordinances – First Reading

In order to amend the city code, Council must vote to approve the change, via ordinance, at two Council meetings. The following proposed ordinances are being introduced for “first reading”. If approved, the ordinance will be voted on at a subsequent Council meeting (“second reading”), where it will also be subject to a public hearing.

C-1 (22-2094) An Ordinance to Amend Chapter 103 (Historic Preservation) of Title VIII of the Code of the City of Ann Arbor by Adding Section 8:425.15 Establishing the Robert and Erma Hayden House Historic District, 1201 Gardner Avenue (Robert and Erma Hayden House Study Committee Recommendation: Approval – 3 Yeas and 0 Nays)
The Robert and Erma Hayden House at 1201 Gardner Avenue will be established as a historic district. I’ve previously written more about this home (and the Haydens):
https://a2elnel.com/post/robert-hayden-ward-4-people-places-you-should-know-may-14-2022

Motions and Resolutions

The following agenda items are motions and resolutions, which are approved or rejected in a single meeting. Agenda items marked “DC” are proposed by Council members, items marked “DB” are proposed by City boards and commissions, items marked “DS” are proposed by City staff.

DC-1 (23-0103) Resolution to Authorize Settlement of Rasiel Alvarez-Rodriguez v. City of Ann Arbor et al., Washtenaw County Circuit Court Case No. 21-001289-NI
The City will pay $39,000 to settle litigation related to a low-speed rear-end motor vehicle accident with an unmarked police vehicle that occurred on June 14, 2019. The City denies allegations that an AAPD officer caused neck and back injuries and associated damages and the lawsuit will be settled without an admission of liability.

DC-2 (23-0105) Resolution Authorizing the City of Ann Arbor to be Listed as a Supporting Municipality in an Amicus Brief to be Filed in the United States Supreme Court in Biden v Nebraska and Dep’t of Education v Brown (U.S. Docket Nos. 22-506 and 22-535)Ann Arbor will be listed as a supporting municipality to the brief of amici curiae filed by Public Rights Project in Biden v State of Nebraska and Dep’t of Education v Brown. This Supreme Court case is a challenge to the Biden Administration’s executive authority to cancel $10,000 in student loan debt for those under certain income thresholds and an additional $10,000 for Pell Grant recipients. A copy of the brief can be found here:
https://static1.squarespace.com/static/592c8640c534a5adf895986b/t/63bf1625dbbc35368c0653da/1673467429465/Biden+v.+Nebraska+–+Local+Govt+Amicus+Brief+–+01.11.23+–+final.pdf

Additional Thoughts

I also published this on my website:
https://a2elnel.com/post/a-million-dollars-and-counting

A Million Dollars and Counting

In November 2021, Ann Arbor voters considered multiple ballot questions to amend the City Charter. All were approved, in an election that engaged 16.7% of registered voters. One amendment tripled the dollar amount of City spending that could happen without a vote of City Council. At the time, a majority of Council praised the initiative as one that would greatly reduce Council agendas and increase “efficiency.” Prior to the charter amendment, any City contract for spending over $25,000 would appear on a public agenda of City Council. Since the charter amendment, only contracts exceeding $75,000 appear on a public agenda for a vote of City Council.

This week, MLive published an analysis from Ryan Stanton that enumerates the consequences of that 2021 Council initiative to reduce oversight and public review.
https://www.mlive.com/news/ann-arbor/2023/01/millions-of-dollars-in-purchases-contracts-no-longer-go-through-ann-arbor-council.html

From that article:

“In several instances, staff has avoided going to council and avoided competitive bidding with purchase orders totaling $74,999 — a dollar under the limit, records show.”
…
“City Council Member Erica Briggs, D-5th Ward, agreed it probably is more efficient that way and she suspects there used to be a number of $24,999 purchase orders when the limit was $25,000. [City unit manager] Kulhanek said that is true.”

I strongly believe in community engagement in City policy and opportunities for residents to participate in local decision making. However, I opposed the ballot question to raise the City’s internal spending limit. It was the only ballot question I ever opposed in the four years I served on City Council. Framed as a simple matter of “efficiency,” that charter amendment primarily reduced Council accountability and public transparency. I did not believe that either of those values were worth compromising, even if a majority of the community could be persuaded to vote in support of the change.

TRANSPARENCY & ACCOUNTABILITY

In the past, City Council has understood the need for oversight when it comes to public spending. In my first month on City Council, I co-sponsored a resolution for the explicit purpose of promoting transparency and accountability in contracting: Resolution to Provide Support for Best-Value/Negotiated Agreements.
https://a2gov.legistar.com/LegislationDetail.aspx?ID=3764612&GUID=8ED8962F-282B-4027-8848-B507F812863A

That December 2018 resolution was summarized with the explanation that “the public is best served when Council can review the criteria used to select a firm when the selection is not based solely on lowest price, and be able to confirm that best value for the expenditure of public funds is obtained.” The operative language of the resolution asked specifically that:

in support of contract award recommendations, staff will provide as part of the Council resolution a discussion of method by which the best value determination was made, including the criteria that support of the recommendation, a summary of any numeric scoring used in the evaluation, the resulting rank-ordering of qualified offerors, and the reasons any offerors were deemed to be non-responsive and/or non-responsible.

The resolution passed unanimously and is presumably still in force. However, compliance has been inconsistent, at best. In Legistar, not all contracting resolutions include the numerical scoring, though some do list a ranking of bids received.

EVALUATING CONTRACTS

Prior to 2021, City contract bids were assessed and scored by staff in relevant categories such as:

  • Professional Qualifications
  • Past Involvement with Similar Projects
  • Proposed Work Plan
  • Fee proposal

Scores in each of these categories were weighted, depending on the type of contract. Bids that failed to meet minimum requirements could be rejected by staff and then, in compliance with the City Charter, contracts were to be awarded to the “lowest responsible bidder.”

Since a 2021 City charter amendment, the City is no longer obligated to award contracts to the “lowest responsible bidder.” A new policy – ironically called “Best Value” contracting – has resulted in five new scoring categories all weighed equally:

  • Qualifications, Experience & Accountability (20%)
  • Workplace Safety (20%)
  • Workforce Development (20%)
  • Social Equity & Sustainability (20%)
  • Schedule of Pricing/Cost (20%)

Since the 2021 charter amendment, some recommended contracts are acknowledged by staff as “not the lowest bidder.”

TALLYING THE COST

I scanned Legistar and quickly found multiple examples of how “Best Value” contracting policy has been implemented, at a cost to taxpayers. In just a preliminary search, I identified where this new scoring criteria – combined with Council discretion, rejecting staff recommendations – has cost the City over a million dollars. (The list below includes links to the scoring criteria used to justify more expensive contracts.)

Additionally, a majority of City Council has intervened twice, rejecting Staff assessment of contracts and applying its own interpretation of “Best Value” policy. (See more on that below.)

There is a financial cost to favoring contractors with higher bid prices. However, the new policy has cost the City much more in terms of discouraging bidders and precluding options that previously existed. In June 2022, the owner of Fonson – a contracting company with a long history of working with the City – made this public comment:

At what point does the City decide enough is enough as far as not awarding to the low bidder?
The City at this point plans to spend $437,000 or almost 12% more than my bid, and I’ve done lots of projects in the City of Ann Arbor… For example, today I’m doing a job on South State Street for $6.7 million. I didn’t know it, but I happened to be the only bidder on the project. Had I not bid it, you wouldn’t have had any bidders. If I’m not going to have the opportunity to be awarded a job that I’m low on, I say to myself, what’s the sense in spending time and engineering to bid these projects?

That comment was prompted by this scoring evaluation result:
http://a2gov.legistar.com/View.ashx?M=F&ID=10967447&GUID=CF5A729F-B58C-4212-BB6D-E4E7C278FC5B

Geddes Ave & HPW/Tuebingen Pkwy Resurfacing Project Ann Arbor dated May 9, 2022

As the commenter mentioned, his company (Fonson) had been awarded multiple City contracts. Even under the new criteria, Fonson was evaluated by staff and deemed to provide “value.”
https://a2gov.legistar.com/LegislationDetail.aspx?ID=5641158&GUID=EAFAD464-6EB6-44D0-88B4-CEB42934FADF

THE FIX IS IN

This week’s Council agenda suggests that the new standard for review of contract bids has indeed discouraged competition and precluded options that previously existed.

Agenda item CA-3 is a construction contract for water main and resurfacing work on S. Main. It will almost certainly be approved – unanimously – at a cost of nearly $6 million.

CA-3 (22-2119) Resolution to Approve a Construction Contract with Bailey Excavating, Inc. for the South Main Street Water Main Replacement and Resurfacing Project ($5,742,710.73) and to Appropriate $2,811,000.00 from the Street, Bridge, Sidewalk Millage Fund, $436,000.00 from the Stormwater Fund, $46,000.00 from the Sewage Disposal Fund, $44,000.00 in AAHC Funding, and $119,000.00 of Funding from the Downtown Development Authority (8 Votes Required)

In recent years, a “request for proposal” (RFP) for this kind of work has resulted in multiple bids. 

The RFP for the contract in CA-3 on this week’s agenda solicited a single bid, from Bailey Excavating. This particular contractor has reason to expect favoritism from the City of Ann Arbor. Since 2021, a majority of City Council has twice rejected staff-recommended contractors in order to award work to Bailey Excavating:

For more about these contracts, you can watch a video I made titled: A2Council Update: “This is Corruption”
https://youtu.be/rTHRda2fu6U

ASKING THE RIGHT QUESTIONS

I encourage everyone to explore the RFP page on the City’s website and click on the links for “proposal tab” — there, you can see how multiple bids offer a range of options and price points:
https://www.a2gov.org/departments/finance-admin-services/purchasing/Pages/Proposals.aspx

Sometimes, a City contract is so specialized that very few companies are even in a position to bid. That is not the case for agenda item CA-3. When an RFP for this type of contract results in only one bid, our community should wonder why. Our elected leaders should be concerned and asking questions. Council member questions to the agenda this week did include some inquiries about CA-3 – Council asked for confirmation that street parking could eventually be removed from South Main (William to Huron) in order to add bike paths. 

Thank you for taking the time to be informed about our local government!
Elizabeth Nelson