Press Clippings

September 8, 2004 - Berkshire Eagle: Elitzer: Work on park won't be done in time.

By D.R. Bahlman

PITTSFIELD -- It's almost certain that the renovation of Wahconah Park will be delayed until after the opening of the 2005 baseball season, the Parks Commission was told last night.

Donald B. "Chip" Elitzer, vice president and director of Wahconah Park Inc., attended the commission's regular meeting to give the panel a "heads up" in ad-vance of its Sept. 20 meeting at which the status of the project will be reviewed.

The review will be conducted against the backdrop of a summary issued last month by the state attorney general's office. It suggests that Wahconah Park Inc. must follow state competitive bidding laws in any construction projects associated with its plans to renovate the park.

Elitzer said last night that unless ground is broken prior to Nov. 1, it will be virtually impossible for the partnership to meet some of the conditions for renewal of its license to use Wahconah Park.

In a 15-page summary, the attorney general's Business and Labor Protection Bureau stated that it has "identified evidence" that the city still has control of construction plans for Wahconah Park, "which raises concerns about whether it is subject to competitive bidding laws."

The summary does not specify what city officials must do, declaring only that "we remand the matter to the city for action consistent with this opinion."

Elizer said that one likely step will be to amend the license agreement between the city and Wahconah Park Inc., but he expressed doubt that the process could be completed in time to allow groundbreaking before deep frost sets in. The attorney general's investigation followed a protest filed in June by the New England Council of Carpenters, Local 108, over the bidding process for construction at Wahconah Park.

Local 108 represents carpenters in Berkshire, Franklin, Hampden and Hampshire counties along with Bennington and Windham counties in Vermont. Elitzer has said that the partnership believed it was not subject to the public bidding laws because it is a private entity and plans to pay for the park's renovations with private funds, not local or state tax money.

Last night, he noted that al-though the scale of work done at Wahconah Park in past years is not comparable to what the partnership envisions, past work has been paid for with public funds and no protest was ever lodged.

In March, the city and Wah-conah Park Inc. signed a license agreement that requires the partnership to invest $1.5 million in capital improvements and facility expenses to Wahconah Park prior to the opening day of the 2005 baseball season.

The agreement is due to expire Oct. 31, 2005, 18 months after it was signed, although it is subject to annual renewal provided that Wahconah Park Inc.complies with four performance-based conditions each year.
In its current form, the agreement "raises serious questions about the applicability of the competitive bidding statutes," the summary reads. It declares that the initial 18-month term "suggests that a li-cense may have been structured to circumvent the bidding laws since many similar constructio n projects take this long to complete."

Last night, Elitzer said the parties to the agreement never in-tended to circumvent the bidding laws. Indeed, he said, when the partnership learned of the union's intent to protest, he and former New York Yankees pitcher Jim Bouton, president of Wahconah Park Inc., requested recommendations of contractors from whom bids could be solicited.

Elitzer said last night that while contracts have been let for "preconstruction" work and engineering, no contracts to actually build anything have been signed.

The summary describes the matter as "a close case." Based on a hearing in Boston on Aug. 2, the attorney general's office found that Wahconah Park Inc. and the city considered case law dealing with a similar issue when they crafted the licensing agreement.

The summary also states that language in the licensing agreement referring to the initial 18-month term does not refer to the amount of time the city and the partnership believe it will take for Wahconah Park Inc. to recoup its investment in the park's improvements. Both parties believe it will take 15 years for that.

The licensing agreement nevertheless gives the city "relatively unrestricted authority" to approve or reject additions to the concession areas, which "also suggests public control of the project," the summary said.

The partnership has delayed the start of its renovations three times this summer, but Elitzer has said those postponements had more to do with the permitting process than with the carpenters' union's protest.

Last night, Elitzer characterized as "ironical" the fact that the partnership anticipated difficulty in the environmental permitting pro-cess, only to have it move relatively smoothly and be supplanted by a problem that appeared more or less out of the blue.