The court battle between the City of Palo Alto and the contractor it has accused of badly botching the long-delayed construction of the Mitchell Park Library and Community Center has taken on clandestine elements over the past month, with each side accusing the other of illegally hiding crucial documents.
In letters exchanged between attorneys for the city and its former contractor, Flintco Pacific, the two sides have levied fresh accusations at each other over construction documents relating to Mitchell Park. The city has alleged that Flintco is violating its contract by not turning over documents that are required for the new building to obtain LEED Platinum certification, a high achievement in green building. These documents relate to the "source and specific type of materials incorporated into the project, methodologies employed by the contractor to reduce waste and impact, and a significant number of other requirements," according to a June 23 letter that the city's retained attorney, David Ginn, sent to Flintco.
According to the letter, the city has been trying to get these documents from Flintco for some time, without much success. After a June 16 conversation between the two parties, Flintco allegedly indicated that all of the documents in its construction trailer are now available to the city and that these documents are responsive to all the deliverables identified in the construction contract.
Yet Assistant City Attorney Cara Silver found that while Flintco made the trailer documents available, "very little of the LEED documentation appear to be present." The letter suggests that the company may have intentionally removed these documents before granting the city access to the trailer.
"Ms. Silver observed that there was a large volume of documents that were removed by Flintco contemporaneous with its termination, and those documents have never been returned to the Project trailer or provided to the City," Ginn wrote.
Also in question is Flintco's electronic database, which includes project files that Flintco has asked for as part of a broad public-records request. While Flintco maintained that it did not keep a copy of the electronic database used during construction, Ginn's letter calls this allegation "doubtful based on the City's observation at the time of termination." Palo Alto fired the company in January after months of allegations of mistakes, delays, mismanagement and an insufficient work force.
"Your client went to extraordinary efforts to remove its documents from the Project trailer in a surreptitious manner," Ginn wrote to Flincto's attorney, Arthur Woodward of Sacramento firm Downey Brand LLP. "Your client spent days following its termination with several employees at multiple computers, all working feverishly. It seems doubtful that Flintco 'forgot' to make its own copy of the electronic project files."
Ginn said the city will "look into providing" Flintco with the electronic documents.
Flintco has vigorously denied withholding the LEED documents and called the city's accusations "unfounded and ill-informed." In a June 27 letter to Ginn, Woodward argued that the surety for the project and Big D, the company hired to finish Flintco's work, have a LEED consultant whose job it is to confirm that the project complies with all the necessary green criteria. To date, Flintco has not received any requests from the surety, Big D, or the consultant for the company to return LEED documents to the trailer.
"Flintco will not devote its resources explaining LEED documentation and compliance to the City, nor will not provide documents already in the city's possession or which are in the Project trailer," Woodward wrote. "Flintco no longer has access to the Project trailer or the Project. It was terminated."
Flintco's attorney also argues that Silver's observation that the company removed a "large volume of documents" from the trailer at the time of termination is "incorrect and implies that Flintco's intentions were malicious." The project, according to Flintco, was "97 percent complete" when the company was fired and it is "standard and customary industry practice" for a contractor to remove its documents and tools as the project nears completion. The company also denied that it removed the documents "in a surreptitious manner."
"When left to the imagination, your language implies that Flintco hired a special operation team to repel from the tree tops to the roof of the trailer who then removed documents through rooftop hatches under the stealth of the night," Woodward wrote. "The truth of the matter is that Flintco employees lawfully removed boxes of Flintco's documents and some of their personal property from the Project trailer in broad daylight."
He noted that the city had sent security guards to the trailer on Jan. 10, the day Flintco was fired, to confront the company's employees. Woodward alludes to the guards' "threatening manner" and claims that the city would "not even allow Flintco's employees to remove their own personal property."
Flintco has consistently argued that its firing was unnecessary and improper and has accused the city of fraud and breach of contract. It has blamed the failure to complete the project on shoddy plans and mistakes made by the city and its architects. Flintco has also claimed that the city's conduct "interfered with and hindered Flintco's progress and its good faith efforts to complete the Project in a timely and workmanlike manner."
To bolster its case, Flintco has been trying to obtain from the city reams of documents relating to the construction. In its claim, Woodward wrote that Flintco is seeking "millions of dollars," though it purposely does not include a dollar amount in its claim, according to Woodward. It is also arguing that the city is not turning over all the records Flintco has requested.
"The City is plainly trying to hide as much as it possibly can about the myriad of missteps it made at the beginning of the Project and throughout the entire construction process," Woodward wrote.
In a separate letter sent on July 9, Woodward accuses the city of a "cover up" that continued throughout the course of the construction.
"The City perpetuated its cover up through numerous staff reports to the City Council and numerous press releases that blamed Flintco for responsibility for the Project's problems," the letter states. "The City's cover ups continued through and after the termination of Flintco in press releases designed to perpetuate the cover up and conceal the true reasons for the Project delays and cost increases."
According to the June 27 letter, Flintco had submitted its public records request to the city in February and "has yet to receive an adequate production from the City."
"The Public Records Act mandates that the City produce documents in a timely manner," Woodward wrote. "Five months is patently untimely. Flintco has already waited much too long and will not wait any longer for the City to fulfill its mandatory statutory duty."
The June letter notified the city that Flintco will seek the court's assistance in obtaining the documents if it does not receive them by July 3.
Two weeks later, the company filed a lawsuit with the Santa Clara County Superior Court asking the court to declare that the city is violating the California Public Records Act and to command the city to produce all records relating to Flintco's information request.
The request includes 49 categories of documents, including all documents and correspondence between city employees regarding the project; all correspondence between employees and the City Council; and all documents relating to communication between the city, its architect (Group 4 Architects) and its construction manager, Turner Construction Company.
While the city has provided some documents in response, it has alleged in its response that many of the documents sought by Flintco are privileged and are not subject to disclosure. Flintco contests this claim and alleges in its lawsuit that the city "has improperly refused to allow Flintco access to public documents for which no privilege or exemption applies, as required by the CPRA."
"The City has failed to met its burden with regard to any of the claimed privileges or exemptions," Woodward wrote in the July 17 petition to the court. "As such, Flintco respectfully requests that the Court issue a writ of mandate commanding the City to produce all records responsive to the Request, without limitation."
The city expects the construction of Mitchell Park and Community Center to be completed at the end of this year.