I suppose we can chalk this up as the anti-climactic story of the year. We ALL knew this was going to happen.
The city council (acting as the Ogden RDA board) ratified the Boyer development contract and Phase 1 site lease (with Phase 2 options) last night, by a unanimous 5-0 vote. That's right. There were no dissenting votes. Nor should there have been. All-in-all -- it's a fair and even-handed deal, in my not so humble opinion. What few things that are a little out of whack can be easily fixed by the new city council.
Now I know what some of you are going to say: "Rudi! You've sold out! You're back in Mayor Pee-wee's pocket again. You've sold out to the neoCONs," you'll say.
Well... As President Kennedy used to say, "Let me say this about that:"
I obtained copies of all the relevant documents yesterday, and took a couple of hours to scrutinize them. Having done that, I realized that some of us had unduly gotten "our panties in a bunch" over what seems now to me a "tempest in a teapot" situation.
I've reviewed the operative documents, as I said. They are completely fair and equitable, in my opinion. They reflect give-and-take negotiations. They're exceptionally well-drafted and craftsman-like, from a lawyer-drafter standpoint. There are also no acute NO "red flags" that I can find; (and I've been reviewing documents such as these for decades.) The operative documents protect both Boyer and our Ogden RDA (the Landlord.)
There are fifty-plus pages to these documents, so you can assure yourselves you won't find them all dutifully (and manually) posted here. So forget that. There is a short "Executive Summary," though, which fairly accurately sums up the important details of the Development and Lease agreements that were ratified last night.
I'll say frankly that I feel very sorry for the outgoing councilmembers, who've maintained their "citizen frigidity" for all these years.
Methinks the semi-functional, sometimes drooling, sometimes "nodded out" Fasi Filiaga sums it all up for the outgoing "lame ducks" with this great quote from John Wright's headline "Top of Utah" story:
“This is our decision,” current Councilman Fasi Filiaga said (somehow repressing the urge to tell shark-capturing stories of his Tongan youth,) addressing two council members-elect in the audience. “You have plenty of things to do. ... This is my last night, and I want it done.”
These people "own" the mall site projects, after all. They have the psychological need to feel like they've "done something" during their dismal tenures, as the city hall screen door slaps them on the backside at the end of the year, I think.
It's all about ego, of course, with the outgoing, Godfrey-compliant city council.
My take on the Boyer deal: No harm; no foul.
It could have been a helluva lot worse.
Welcome aboard, Boyer Co. Our fingers are crossed; and we're all counting on you.
Comments, gentle readers?
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25 comments:
A unanimous vote, eh?
May show solidarity--may show political savvy.
Anyone who votes in favor of an issue can bring it to the table for reconsideration later on.
And didn't I read somewhere there was a 60 day period where either side could reconsider?
I was sort of hoping that this door would be left open, actually, if this were in any way possible. It may be a good deal as is, if not, it can be brought up again.
Well done, everyone!
I pored over the documents, Dian. It is surprizingly even-handed.
There are a few problems with RDA board approval, notification and review, which you'll find in my newly-added "execitive summary" link.
These are things that can be easily fixed by the new council however, simpy by passing a new resolution.
The Development and Lease agreements cannot be so modified however, now that the current council has ratified the deal.
As I said before, though... I think the basic agreements are surprisingly fair and equitable. The Boyer Company came to town holding all the cards; and I think Mayor Godfrey walked out of the negotiations with a lot better set of agreements than I would have expected.
Dian
How about quoting "chapter and verse" with what you wrote being able to "recall" an issue within 60 days if you voted for it. Could this explain Garcia's apparent vote?
Where was Burdett? This was a pretty momentus vote. Was she ill, or? Did she not want her signature on this? She is a pretty decent person and may have some guilty feeling about all this?
The big question is: who will pay to build out the 90,000 feet of commercial buildings? Will it be done with TIF's? (the taxpayers), Boyer?, Ogden? Tenants?
Is this agreement available on the net?
Here's hoping that it all comes together and works for the people of Ogden.
I have participated in many meetings in which Robert's Rules of Order is the procedure used to do business. Robert's Rules of Order is Parlimentary Procedure.
There is a very good quick reference web page on it--actually, RRO is a small book, but I see that the full text of the book is on the web too. I have one around somewhere.
So for the first part of the question, in parlimentary procedure, here is "Reconsideration" from the Robert's Rules Quick Reference page:
Reconsider: Can be made only by one on the prevailing side who has changed position or view.
So sometimes what one does on an issue where one is outnumbered is to go ahead and vote In Favor of it. This then gives one the right to re-open the issue at a subsequent meeting because of new info, more support present at the board meeting, change of mind, or whatever.
The 60 day thing was from a John Wright article in the Standard. It is the hard copy edition, Monday, December 26th 2005, Page 8A. The article is, "Ogden Council Studies Details of Boyer Proposal." Here is the line:
"The development agreement can be terminated by the city, with 60 days notice, if Boyer doesn't have a sublease with Utah Jazz owner Larry Miller or another acceptable tenant for the theater complex within 90 days of the ratification."
Make of that what you are able. Wright does not say whether or not this is a specific termination clause dealing only with this specific tenancy question in the contract, or whether this is a kind of blanket rule on contracts that would cover other failures to comply or other things in addition to failure to comply. The fact that Wright brought this up means that this contract is, at least in the above instance, a voidable contract, meaning that it can be broken by the city---maybe only in the above instance but maybe in other things too, dont know.
The thing is, with parlimentary procedure, it is the rule of the majority that counts. And in contracts, one can always reform them, or rescind them, or renegotiate them, or have new information, or suddenly see that the language is wrong, or have a host of other things come to light. And there is always recourse should these things happen.
Furthermore, this is the government, and the local government has an obligation to the people, and if it deems that this contract is not in the best interests of the people, it may have the right to rescind it on those grounds alone.
So I see this a bit differently than Rudi does. A majority can vote to rescind its ratification of something. If anyone who voted for this ratification wishes to bring it up again for reconsideration for the new council, he or she can do this since all the votes were on the prevailing side.
And they could then vote to rescind it--I think that takes a two thirds majority--or reform it, or renegotiate it, or whatever.
After all, a previous council voted that a portion of BDO revenue was to be earmarked for infrastructure, and this council was able to overturn that at the rec center meeting and put that money into the rec center.
And with all the hoopla about the current council "owning" the project, and having the right to this vote because of all the long, hard hours they have spent on the project, well...
The project is partially financed by increments from "10 other RDA projects." I would assume long hard hours were spent on those, too. Yet it seems that they have bitten the dust in favor of this one.
These things happen.
Not saying they will, because I don't know, and am not saying they should or should not, because I am totally unfamiliar with the contract and have no legal opinions on this course of action, but am saying that this is a possibility.
The present council has not been going by Roberts Rules of Order but a hodge-podge of their own making.
Let's hope the new council adopts Roberts Rules.
If there have been no formal rules of procedure adopted, then one has to rely on precedent, or the normal established way of doing business.
There was an issue just recently--I think it was the ferret one, actually, where (was it Safsten?) put forward a motion to reconsider. I think it was, and that he had previously voted on the prevailing side. So it could be said that there is a precedent established there, in the event that the council has never adopted formal rules.
I too think they should, Dorothy. Thw whole point of formal rules is to make things fair.
Posted this over at The Other Site a few days ago and got no reply. Still curious about it, so I thought I'd try posting it here:
I have a question. I don't know if the new arrangement [contract modification just approved by the Council Tuesday night] is a good one for the city or not. And so I'd like to know this: is the proposed new arrangement [in which the Council surrenders its power to approve or disapprove new commercial tenants in the project] an arrangement that is common in such city/developer contracts? Do other cities commonly include such provisions in their contacts with developers like Boyer? Is this the "industry standard"? Or is the proposed changed something uncommon, out of the ordinary, and not routinely found in cities' contracts with developers like Boyer? I don't know. I was wondering if anyone out there --- a professional in real estate, perhaps, or in city planning, or in public/private joint development --- does know?
"...[i]s the proposed new arrangement [in which the Council surrenders its power to approve or disapprove new commercial tenants in the project] an arrangement that is common in such city/developer contracts?"
Although you've asked an interesting question, Cirmudgeon, I'm not sure that the answer is crucial to analysis of the Boyer "deal," even if adequate data could be gathered through some kind of multi-city survey.
What the Ogden RDA has done in its most recent session is to ratify an agreement tailored to Ogden city's needs, neatly preserving the RDA's statutory oversight and management functions, while giving the private developer maximum flexibility in efficiently building out and tenanting the downtown site. A nice balance has been struck, I think, between the RDA's rights and obligations under Utah RDA law, and the government tendency to overly "micro-manage" things. Keep in mind, all major decisions involving the Boyer development and lease agreements remain subject to board approval under the contract as ratied. Contrary provisions would also violate Utah law, I believe. Remember, the Council is the governing RDA body, not the Mayor's office.
Not only that, subtenant selection remains subject to existing zoning, planning and master plan provisions, all of which are uber-tight.
As regular readers are aware, "private management" has been a mantra here at Weber County Forum since the founding of this blog. We asked for a professionally, privately-managed and operated project -- and that's exactly what we got.
In truth, however, the council has ceded no important statutory power in ratifying this agreement. In fact, the agreement wasn't even "modified" as you suggest.
What the outgoing council did was 1) approve the contract in its original form, 2) and adopt a further resolution setting forth "relaxed" interim standards for RDA (council) approval, review and notification.
The latter resolution was not incorporated into the Boyer contracts, and was not made a part thereof. The RDA Board can subsequently insist in more strict adherence to the tighter standards of the written agreements, simply by passing a new resolution.
As an aside, one of the rumors I'm hearing from my sources is that the new council will be scheduling educational workshops to learn more about the nature of the RDA Board's powers under the Utah RDA law. This is a positive development, I think, inamuch as the administration has indulged in some obvious "over-reaching" in the past, and the outgoing council never exhibited much interest in determining its the nature and limits of itspowers and obligations under current RDA law.
I believe the Boyer agreements are indeed a "good thing" for Ogden city, and that the new council will do a creditable job in overseeing the mall site project(s), once a few minor wrinkles are ironed out.
Have looked at a few contracts but have found none as of yet that are totally similar to our situation.
One thing I have found, however, is that in many cases of residential developments, the developer when leasing must abide by a non-discrimination clause involving race, religion, etc.
And in places deemed "restricted," (I assume because of dealings with the government in government money going toward this housing,) the developer must submit all info on each prospective tenant to the RDA, which will then approve or deny eligibility.
Don't know about the housing possibilities in our development, but that's all I've found so far.
Rudi and Dian:
Thank you both. Being impressively ignorant of real estate development partnerships [urban/private], I appreciate your information, and I appreciate having some of my misconceptions cleared away. Thanks again.
any changes to the accompanying resolution that affect the development agreement would have to be negotiated with the boyer co. for example, if the city council decided it wanted the right to sign off on subleases, it would have to seek the boyer co.'s ok.
No. The Boyer agreements prevent Ogden city government from meddling with the sub-lessees.
This is trivial, as far as I'm concerned.
I think it's time to back off from our natural suspician of the tyrannical "Mayor's Office."
It's time to empower our new city council, and "trust" them to proprely look after RDA affairs.
One of the things they'll be doing very soon, will be to assert their Utah statutory authority.
Mayor Pee-Wee will ultimately be "put in his place.
The RDA is the governing authority under Utah RDA law.
Please don't forget that.
The vote ratified a contract. The contract is NOW in effect. No reconsideration is therefore possible.
The Ogden City Council conducts its meetings under the Rules of Procedure mattrix. Robert's Rules of Order do not apply. There is no contemplation for changing the present protocol.
Any deviance from the terms of the Boyer development contract would be subject to the usual constraints of Ogden City Building Codes, including Planning and approval from the pertinent and/or relevant councils, boards and commissions.
That is correct, fly on the wall. Now that the agreements have been ratified by the council, they can't be modified, amended or rescinded, except with the mutual agreement of the parties, i.e. Boyer Co. and the RDA -- or under modification provisions already contained in the documents themselves, to the extent such provisions exist.
The contracts are binding and enforceable, and cannot be altered by the unilateral actions of either of the parties thereto.
I also agee that the provision allowing selection of subtenants at Boyer's sole discretion is really a non-issue here.
As you point out, subtenant selection is already well-constrained by planning and zoning ordinances, and by the terms of the project master plan itself. Moreover, it's in Boyer Co.'s own best interest to select subtenants who are substantial, competent and financially-capable.
ah, but the administration does have the right to object to major subleases. so the question is, is it appropriate for the administration to have that right but not the council? i have no opinion either way, but that is the question.
Are there not suppossed to be 3 EQUAL branches of government? There's you answer. There are provisions wherein the RDA will have some involvement, but those will come at the hands of the Executive Director, Mathew Goddfrey.
Anonymous: "ah, but the administration does have the right to object to major subleases. so the question is, is it appropriate for the administration to have that right but not the council? "
No. The council retains approval of "major subleases under terms of the Boyer contracts.
The "administration" is NOT the governing public body under Utah RDA law, nor under the Boyer Contracts, BTW. The city council, acting as the RDA, is the "governing body" under Utah RDA law -- PERIOD! The Mayor's office is not a party to the Boyer Agreements.
As I said before, "the administration has over-reached sometimes in the past. With the new council's "educational workshops" coming up soon, wherein they'll learn the nature and extent of their statutory power, these little wrinkles will be ultimately ironed out.
The Mayor's office cannot call the shots for the RDA. Utah RDA law doesn't allow that. If there are provisions in the contracts that conflict with RDA law in that regard (my opinion is that they don't,) RDA law prevails; and conflicting provisions will be legally unenforcible, should any disageement between Boyer and the RDA wind up in the Utah Courts.
(As an aside, I want to note this... having carefully studied the Boyer contracts:
The contracts both contain "arbitration clauses." What this means is that the parties will have to initiate the arbitration process, before they seek recourse to the state court.
This is a good thing, I believe; and it cuts down the legal cost of conflict.
As I said before, I think the Boyer contracts are a good deal for both Ogden city and the Boyer Company. It's a potential win-win, IOW.
I also think some Ogden citizens need to "get a grip," and realize that everything Matt Godfrey negotiates ain't necessarily bad.
Even a blind squirrel finds an acorn, now and then, after all.
"ah, but the administration does have the right to object to major subleases."
Baloney. The contracts don't provide for "Administration" "meddling."
When the smoke clears, and the council realizes how little power the Mayor's office has re the RDA, ALL Ogden citizens will be laughing their ass off at the "Administration."
The RDA is the "landlord," under terms of the agreement; and the council (the RDA Board,) calls all the shots, ultimately, under the agreements.
The Mayor's office has little power, if any, with respect to these agreements.
Like I said before... Mayor PeeWee has seriously overstepped himself, with respect to his negligible RDA "powers."
Sooner or later he'll come to the realization that he's NOT IN THE DRIVERS' SEAT.
Maybe the "council" will have to thump him in the forehead a few times in the next few months, before he "gets" it. Who knows?
Maybe he'll NEVER "get it." That's certainly a possibility.
How do you "esplain" such a simple thing to an emotionally immature tyrant who still believes he's "King of the Friggin' World?"
Ya like Godfrey's suggesstion about what to name the new mall? THE HUB!
Sounds like a beer bar to me.
the administration absolutely does have the right, under the agreement, to object to major subleases and those that don't comply with a yet-to-be-seen sublease agreement. learn how to read
Rudi:
If you know this "agreement" that well, how about answering my earlier question about it.
Like - who pays to build out the 90,000 plus feet of commercial space that is called for in phase l ?
Will it me more TIF BS (tax payers), Boyer? Tenants?
What about this stuff concerning Boyer or the RDA being able to sell off land at the mall site to finance development? Seems like the tax payers some how own that land. If any of it is sold to pay for development, then does that mean the tax payers are going to get raped once again?
How will the tax paying citizens of Ogden ever come out ahead on this deal?
Name Sake, hopefully Boyer will prevail and be able to come up with an exciting name. Godfrey's "genius" does not extend to naming projects -- look at the "Intermodel Hub" name. He must have had a nightmare when he dreamed that one up! I was encouraged when Boyer said that they were thinking of hiring an agency that specializes in creating brands. Ogden wants to project a new image of vitality, uniqueness and being in the forefront of progress, so the name for the mall needs to demonstrate those characteristics. Let's hope they do it!
Rudizink, when did the Council ratify the contract with Boyer? I don't recall a Council meeting after the RDA board voted on it. I read the contract, also, and I believe it says that there are two contacts for the administration. Nothing about the Council having any contacts. It seems rather one-sided to me, so how do you intrepet these points?
Anonymous said...
"the administration absolutely does have the right, under the agreement, to object to major subleases and those that don't comply with a yet-to-be-seen sublease agreement. learn how to read"
Oh really? Well please point out the provision in either document where the administration has any say about anything under either contract, since I'm such a poor reader.
C'mon smart guy; Point out the provision or provisions. I'm always willing to learn.
The way I read the documents, the mayoral administration isn't even a party to these agreements.
The initial naming of the city Economic Development Manager as reprentative for the RDA doesn't count as "absolute," btw, as the RDA Board can substitute a new representative under terms of the agreements, by simply giving written notice to Boyer. Whatever tenuous administration rights that may exist under this provision can be summarily extinguished by RDA Board action.
C'mon, smart guy, show us all what ya got!
The "Council," the "RDA," the "Board," they are one and the same. Ratification did in fact occur, by one of those bodies.
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