FORM 68A
Court File No.: 11-DC-1758
Courts of Justice Act NOTICE OF APPLICATION TO SUPERIOR COURT FOR JUDICIAL REVIEW Between Lansdowne Park Conservancy Applicant -and-
The City of Ottawa Respondent (Court seal) NOTICE OF APPLICATION TO SUPERIOR COURT FOR JUDICIAL REVIEW TO THE RESPONDENT A LEGAL PROCEEDING HAS BEEN COMMENCED by the applicant. The claim made by the applicant appears on the following page. THIS APPLICATION for judicial review will come on for a hearing before the SUPERIOR Court on a date to be fixed by the registrar at the place of hearing requested by the applicant. The applicant requests that this application be heard at Ottawa. IF YOU WISH TO OPPOSE THIS APPLICATION, to receive notice of any step in the application or to be served with any documents in the application, you or an Ontario lawyer acting for you must forthwith prepare a notice of appearance in Form 38A prescribed by the Rules of Civil Procedure, serve it on the applicant’s lawyer or, where the applicant does not have a lawyer, serve it on the applicant, and file it, with proof of service, in the office of the Divisional Court, and you or your lawyer must appear at the hearing. IF YOU WISH TO PRESENT AFFIDAVIT OR OTHER DOCUMENTARY EVIDENCE TO THE COURT OR TO EXAMINE OR CROSS-EXAMINE WITNESSES ON THE APPLICATION, you or your lawyer must, in additional to serving your notice of appearance, serve a copy of the evidence on the applicant’s lawyer or, where the applicant does not have a lawyer, serve it on the applicant, and file it, with proof of service, in the office of the Divisional Court within thirty days after service on you of the applicant’s application record, or not later than 2 p.m. on the day before the hearing, whichever is earlier. IF YOU FAIL TO APPEAR AT THE HEARING, JUDGMENT MAY BE GIVEN TO IN YOUR ABSENCE AND WITHOUT FURTHER NOTICE TO YOU. IF YOU WISH TO DEFEND THIS PROCEEDING BUT
ARE UNABLE TO PAY LEGAL FEES, LEGAL AID MAY BE AVAILABLE TO YOU BY CONTACTING A LOCAL LEGAL AID OFFICE.
Date Issued by Registrar Address of court office TO The City of Ottawa, c/o The City Clerk, 110 Laurier Ave. West, Ottawa, ON, K1P 1J1 AND TO Attorney General of Ontario (as required by subsection 9(4) of the Judicial Review Procedure Act) Crown Law Office – Civil 720 Bay Street 8th Floor Toronto, Ontario M5G 2K1 fax 416.326.4181.
APPLICATION 1. The applicant makes application for:
1. To quash, prohibit or by mandamus order, or by certiorari, declare that the current Sole Source Negotiation between the City of Ottawa and the Business consortium known as OSEG for the development of Lansdowne Park, located at 1015 Bank Street, be cancelled due to illegality.
2. To order by mandamus, or certiorari, or by any other means the immediate commencement of a public Request for Proposal for the development and management of Lansdowne Park meeting the four major criteria approved by the City of Ottawa of 1. Stadium, 2. Green Space, 3. Retail Model and 4. Governance Model as mandated under the City of Ottawa substantive Procurement By-Law 50 that states: PURPOSE 2. (1) The objective of this By-law respecting procurement is to obtain best value when purchasing goods, construction and services for the City while treating all suppliers equitably. (2)
The guiding procurement principle is that purchases be made using a competitive process that is open, transparent and fair to all suppliers.
(3)
These objectives and principles are reflected in this By-law.
3. An order confirming the legal park status of the park located at 945 Bank Street and to stop City of
Ottawa plans to build private homes upon it since the mandatory 2/3 passing of council requirement for decommissioning the park has never taken place.
4. An order that no contracts be signed until this matter before the court is resolved.
5. To provide an injunction or mandatory order as per Section 101 of the Courts of Justice Act for the preservation of rights in pending litigation.
6. To have this matter heard as soon as possible due to immediacy.
7. Such further and other relief that the circumstances of the case may require and the court deem to be just.
8. Costs of the proceeding.
The grounds for the application are:
9. The Appellant, Lansdowne Park Conservancy, is represented by its legal representative, John E. Martin, a municipal taxpayer residing in the City of Ottawa.
10. The Lansdowne Park Conservancy is a competitive bid for the development and management of Lansdowne Park that keeps the park public, a wholly owned asset for the City of Ottawa ( herein referred to as “the City� ), meets all policy directions for the provision of goods and services and construction required to develop the space, and will manage the city owned park using a not for profit incorporation that includes a public governance board that is representative of all invested parties, including the City.
11. Evidence not before the court and not available to the court on a recent citizen based application concerning Lansdowne Park in Ottawa, ON prevented the court from being able to completely assess the situation.
12. This applicant was prevented from participating in the initial process due to regulations at the City of Ottawa that prejudice bidders who have engaged in litigation and was continuing to find a non litigious remedy through mediation.
13. As a result of the dismissal of the citizen application, the application being brought here seeking relief from the court is from the standing of a competitor who has been denied the opportunity to bid as outlined clearly in the Procurement by-law 50 Section 25 with regard to “unsolicited proposals�.
14. It will be shown that there is no monopoly condition that can allow a non-competitive procurement, that the overriding procurement process is substantive law, that decisions made by staff do not meet the standards of correctness and that with full knowledge of a competing proposal the City of Ottawa was not reasonable in its responsibility of ensuring best value for its citizens, that the City of Ottawa used tactics, including the use of force, to preclude other ideas and did not conduct public consultations but rather conducted information sessions and that no design changes to the current non-competitive proposal came about from those consultations.
15. That the City of Ottawa has failed in its duties to act in the best interests of its citizens by refusing to examine a ready and available proposal for the development of Lansdowne Park, and failed to take advantage of an available internal dispute resolution mechanism to avoid this litigation.
16. The area of discussion: Lansdowne Park, Ottawa 17. Lansdowne Park is located at 1015 Bank Street in the City of Ottawa and is a city owned property.
18. The park has been public for over 150 years, the vast majority of it deeded to the citizens of Ottawa by the Royal Ottawa Horticulture Society with the caveat that it is to be “kept for the public use and enjoyment of her citizens and visitors”.
19. The park was successfully managed at no taxpayer cost and with annual dividends to the City of Ottawa from 1888 to 1973 by the Central Canada Exhibition, a not for profit association.
20. In 1973 the City of Ottawa took over management of the site. Since that time the park has fallen into disrepair.
21. In 2006 the City of Ottawa examined ways to improve the condition of the site.
22. This resulted in a “Rights to Develop” competition passed by City council in 2007.
23. I commenced an interest in the competition process and attended public meetings and working groups.
24. In May of 2008 the competition was set aside by City Manager Kent Kirkpatrick because he wished to examine an unsolicited proposal.
25. Unsolicited proposals fall to Section 25 of the Procurement By-Law 50. 26. Within Section 25 is a document titled the Ottawa Option Plan incorporated into the regulation.
27. In 2008 when the competition was set aside the Ottawa Option Plan stated:
“….. Another possible concern with unsolicited bids is the potential for the perception of bias and unfair procurement procedures. The Ottawa Option overcomes these concerns by providing an approach whereby the City of Ottawa can receive unsolicited proposals for a project in a fair and practical manner. The process is as follows: A Private Sector Participant submits an Unsolicited Proposal for a project which is innovative and, which was not initiated or is not planned to be initiated by the City of Ottawa. The submission must include: i.) Details of the technical, commercial, managerial and financial capability of the participant; ii.) Technical, financial and commercial details of the proposal; iii.) Draft contract principles for undertaking the project.
28. The unsolicited proposal was from a group then known as “The Shenkman Bid” that would later be changed to OSEG ( Ottawa Sports and Entertainment Group) . There was only one component to the unsolicited proposal, a CFL franchise. No architect had been hired, no commercial plan submitted, and no management structure was provided.
29. The competition was underway. This regulation prohibited the examination let alone the acceptance of the unsolicited bid.
30. The City manager later acknowledged his mistake both publicly and privately and was admonished by a report by the City Auditor General in 2009 but no corrective action was taken.
31. Subsequent resolutions and motions passed in 2008 through to 2010 regarding the unsolicited bid were all subsequent to the initial error with council not being provided the information to understand the implications of what had taken place.
32. In the winter of 2009 there was another unsolicited proposal by a group known as SSE ( Senators Sports and Entertainment ) for a soccer stadium in Kanata.
33. The City was faced with a policy choice on whether to go in the direction of a stadium at Lansdowne for football or a soccer stadium in Kanata for soccer.
34. In June of 2009 the City decided to continue with Lansdowne Park as the choice for stadium.
35. The Ottawa Option Plan of 2009 was then in effect and required an RFP in order to determine BAFO or Best and Final Offer.
36. In the Spring of 2010 the Lansdowne Park Conservancy was formed.
37. On June 21, 2010 the Lansdowne Park Conservancy submitted an unsolicited proposal for the development of Lansdowne Park to the City.
38. On June 28, 2010 city council approved the continued negotiation with the unsolicited proposal by OSEG.
39. It was not until August 23, 2010 that the City Solicitor replied to our submission stating that the city was not considering any other applications on Lansdowne Park due to the City proceeding with the unsolicited proposal by OSEG.
40. Under the Rules all unsolicited bids must follow the Ottawa Option Plan. This was not applied to our submission.
41. The Ottawa Option Plan was updated in 2009 but the overall process was still the same.
42. Unsolicited proposals must be subjected to an RFP or open and competitive process in order to determine BAFO or Best and Final Offer.
43. The only exception is if there is anything under Section 22 of the Procurement Bylaw 50 that exempts them from this process.
44. In November of 2010 the Lansdowne Park Conservancy resubmitted its application, no longer as an unsolicited proposal, but as a competitive bid in order to comply with the directives of the Ottawa Option Plan.
45. After receiving the new competitive bid from the LPC, the City Chief Procurement Officer told me that the City would not look at the LPC bid.
46. Under the Rules of Procurement By-Law 50, when a bidder has a dispute over the process they are to file a “Substantive Objection”.
47. A substantive objection was formally filed within the timelines. Included in the process of “substantive objection” is a process to resolve disputes through mediation, including the appointment of a fairness commissioner. This is done to prevent litigation.
48. The City refused to follow its own internal dispute resolution mechanism to avoid litigation.
49. The explanation provided was that the City of Ottawa invoked Section 22 (1) (d) of the Procurement Bylaw that states:
“where there is an absence of competition for technical or other reasons and the goods, services or construction can only be supplied by a particular supplier and no alternative exists, 50. The City claim was that because OSEG alone could provide a CFL franchise they were able to claim this exemption and thereby be allowed to be the only bidder for the development and management of the entire park.
51. In the over 50 year relationship with CFL franchises at Lansdowne Park the franchise lessee has been entitled to a lease. This has never extended to a right to develop.
52. The claim by the City that a CFL franchise was the principle reason for a stadium was eroded by
Mayor Jim Watson in 2010 when he publicly stated a stadium would be needed as a municipal structure to host a world event, namely the FIFA Women’s World Cup U20 in 2014 and FIFA Women’s World Cup in 2015.
53. In February of 2010 the City of Ottawa committed $400,000.00 towards securing this event.
54. What this demonstrates is that stadiums are municipal structures and are needed for more than one event. This requires an open and competitive process.
55. The OSEG Sports ownership have also confirmed that a real estate development at Lansdowne was not a requirement for bringing football to the City, only a stadium.
56. The Contract with the CFL franchise contract only stipulates that the “City of Ottawa is to provide a stadium and on terms agreeable to the franchisee and the CFL acting reasonably”.
57. The CFL franchise rights were secured in March of 2008. The competition was suspended in May of that year after they approached the City. But in June of that year OSEG partner John Ruddy met with Carleton University director Duncan Watt for the purpose of establishing their team at a new City owned stadium at Carleton University. This demonstrates that the CFL franchise is a viable concern on its own and that any location of a City owned stadium and without a real estate development satisfied the principle conditions of the CFL contract.
58. While a stadium could have been developed at Carleton University and paid for by the City, Carleton University turned them down.
59. The policy direction by the City was later established to direct a taxpayer paid stadium at Lansdowne Park.
60. The City was therefore incorrect in using Section 22 1 d. There is no monopoly condition. Any location and or builder of a City owned stadium will satisfy the terms of the CFL franchise agreement and receive the franchisee as a tenant.
61. The Ottawa Option Plan regarding a mandatory RFP is therefore in effect.
62. The Lansdowne Park Conservancy proposal includes a stadium at Lansdowne Park to the specifications required and with arguably the worlds leading stadium deign firm NBBJ who have the added status of being the only firm in the world to meet the specific experience requirements of Frank Clair Stadium ( the name of the stadium at Lansdowne Park ) and arena.
63. The specific experience required at Frank Clair Stadium ( and arena ) require a firm with expertise of pro football stadium experience, pro soccer stadium experience, combining these two on the same field, pro hockey experience ( there is a junior pro team arena within the stadium) and FIFA Women’s World Cup Stadium experience ( the City of Ottawa is bidding on being a host city for the FIFA Women’s World Cup U20 in 2014 and FIFA Women’s World Cup in 2015). All of these are critical elements for the redesign of the Frank Clair Stadium. Our design firm NBBJ has all of these
experience components and is arguably the only firm in the world that satisfies every experience requirement. With experience comes knowledge and efficiency, critical components on a time sensitive project.
64. Our design firm, NBBJ, has been in business for over 60 years and among their well known projects is the Bill and Melinda Gates Foundation.
65. The lease arrangement with the CFL franchise under the LPC proposal is the same as with the OSEG proposal. However with the LPC proposal there is no profit sharing, the CFL franchisee simply pays a lease. This is in fact more favourable for the teams and will help ensure the success of the franchise.
66. Under the LPC proposal, the CLF team and all other sports play at a City owned structure that is managed by a non-profit incorporation. This method has historical precedent at the park and is a proven successful model for the CFL when working with non-profit incorporations. Under these terms the LPC proposal more than meets the standard of acceptable terms with the CFL and franchisee acting reasonably.
67. In the citizen application before the court the learned judge was not able to know of the Lansdowne Park Conservancy bid that included a stadium for Lansdowne Park and that met all policy direction for the development of the Park and that satisfied the condition under section 22 1 d of an alternative being available.
68. The CFL franchise is not exclusive to the OSEG development since any proposal that brings with
it a stadium for the City of Ottawa gets them as a tenant.
69. The CFL franchise is exclusive as far as it relates to football, it does not extend to a rights to develop. Historical precedent at the park has always maintained that teams bring their team to a City owned structure. This will be continued under this or any proposal that includes a stadium that meets the requirements for a combined CFL Football/NASL Soccer/OHL Hockey facility and meets the contractual requirements of the contract on lease and terms between the CFL and the franchisee “acting reasonably”.
70. Under the current developer OSEG proposal, football profits of the team are projected to be over $70M over the life of the contract. With the OSEG proposal profits are required to be shared into a general pool ( though the overall position of the City from that pool are a loss of $300M). With the LPC proposal the team keeps all profits.
71. The City must return to an open and competitive process to satisfy the Ottawa Option Plan for unsolicited proposals.
No delay 72. Recent published articles in the Ottawa Citizen and the CBC have confirmed the OSEG proposal has now let go its second architectural firm and is starting on its third set of architects.
73. A director of the OSEG bid has stated publicly that “several months” will now be required to get new designs ready.
74. An RFP takes less than several months.
75. Having an RFP will not prejudice OSEG to compete in a competitive process since they will be ready within the time requirement.
76. The LPC proposal has been design ready since January of 2011.
77. Due to its non-profit incorporation model the LPC proposal returns all site revenue to the park.
78. The LPC proposal qualifies for low interest loans from Infrastructure Ontario ( an agency of the Province of Ontario ).
79. The LPC proposal has verifiable financials that demonstrate a $200M surplus to the taxpayer plus annual taxation from local business who will locate within the park.
80. This means a zero cost zero risk opportunity for the City and her taxpayers to have the park developed, retain the longstanding public aspect of the park, and in a manner that is fiscally responsible with the entire park ready for 2014.
81. The OSEG bid has a confirmed $300M cost to the taxpayer and is ineligible for support from Infrastructure Ontario.
82. The OSEG proposal is now on its third architectural team and have publicly admitted they are “several months away” from completing design.
83. The OSEG proposal has projected project completion dates extending into 2016.
84. The entire park must be ready for FIFA 2014.
85. The City of Ottawa has been aware of the LPC proposal since 2010 and has not acted reasonably.
86. In the interest of public accountability it is respectfully asked of this learned court to order an immediate RFP that will accelerate progress on this file and be in the public interest to determine best value.
87. All conditions to have the CFL and all OSEG Sports at the LPC stadium have been met and the CFL is contractually bound to play at the City owned stadium under the LPC proposal subject to the terms of the CFL contract “acting reasonably”.
88. The overall objective of City corporations is that they must act in the best interests of the taxpayer by ensuring they are working in their best interests.
89. Having an open and competitive process by the required RFP takes 60 – 90 days ( “several
months� ), will determine best value and is not an impediment to the development of the park, will ensure best value for the taxpayer, provide much needed information to the City and ensure a timely delivery.
90. Faced with two plans where one confirms a substantial taxpayer loss, substantial risk with long term debentures and additional costs for operations on a very complicated proposal that has had three years to complete design and is still not ready, as against a ready and available plan that provides an annual surplus as well as no cost and no risk through secured loans with Infrastructure Ontario, the clear and reasonable method to ensure best value for the taxpayer and that adheres to the direction of the substantive procurement law, is an immediate RFP.
The following documentary evidence will be used at the hearing of the application: a.
Exhibits.
b.
The City of Ottawa Procurement Procedure By-Law #50 of 2000.
c.
The Ottawa Option Plan of 2002 and 2009.
d.
Such further affidavit and expert testimony and other material that this court may permit.
Date: August 17, 2011
John E. Martin 99 Fifth Ave., Ste 417 Ottawa, ON K1S 5P5 613.898.1284
RCP-E 68A (July 1, 2007)