Convention Center Suit Aims to Stop ‘Runaway’

Seeking to “put the brakes . . . on a runaway locomotive,” three San Diego lawyers filed a lawsuit Friday aimed at ensuring that public funds are not used to cover millions of dollars in projected cost overruns for the waterfront convention center.

The so-called “taxpayer representative” lawsuit, filed in Superior Court by Michael Aguirre, Gary Aguirre and James Eckmann, also alleges that the San Diego Unified Port District cannot legally proceed with the project because specifications submitted to bidders were invalid.

Filed on behalf of convention center opponent Simon Casady and Chula Vista resident Bertha Gonzales, the lawsuit charges that public funds “have been wasted . . . and additional funds will be wasted” unless the San Diego Unified Port District forces architects to meet their contractural obligations to design a $125-million convention center--$35 million below the current estimated price tag.

The port, architect Ward Deems, and HuntCor Inc. of Phoenix, the firm excavating the 11-acre bayfront Navy Field site, are named as defendants in the 22-page suit.

Port officials, Michael Aguirre charged, have “failed to protect taxpayers’ interests” by not pursuing legal claims against Deems in an attempt to rein in the burgeoning costs of the center, originally billed as a $95-million project when San Diegans approved it in an advisory vote in November, 1983. Aguirre also faulted the port for not pursuing similar legal claims against HuntCor Inc. for its failure to complete excavation--a process slowed by serious water drainage problems--by last December’s deadline.

If the convention center’s final cost exceeds the $125-million

budget that the port approved last year, Deems and HuntCor, not the public, should pay the additional costs, the lawyers said. The lawsuit, Michael Aguirre said, “preserves the right” of the port to sue the architectural and excavation firms to recover those added costs.

Alan Perry, the port’s attorney, said late Friday that he could not comment on the lawsuit because he had not yet seen a copy of it. A spokeswoman for Deems, meanwhile, explained that the architect “isn’t answering anything at all to do” with the lawsuit.

Although the lawsuit was filed in court Friday, the lawyers explained that they held off serving copies of it on the defendants in the hope that the matter could be settled in a “mediation session” between themselves and port officials, Eckmann said. If such a session does not occur within about a week, the defendants will be served and a court hearing date sought, Michael Aguirre added.

Perry, however, expressed doubt about the prospects for such a mediation meeting.

“The port commissioners may be willing to sit around the table with some of the city people taking a look at this, but I’m not at all sure that they’d be willing to sit there . . . with someone threatening to sue them,” Perry said. “In the meantime, I’m not prepared to comment on the extent, if any, of the port’s possible claims against the architect or anyone because of the bids coming in higher than the last approved construction budget.”

The lawyers who filed the suit emphasized that they do not want to halt construction of the center, but rather, in Eckmann’s words, “want to get the project back on track” at a lower cost than the $160-million figure cited when bids from six large construction firms to build the 1.4-million-square-foot structure came in more than $22 million over budget.

To avoid worsening what Gary Aguirre characterized as “a financial sink hole,” the suit also seeks to prevent the port from awarding a construction contract “prior to the completion or assurance of completion” of the $6-million excavation job.

Although port officials said last week that HuntCor workers believe they have finally solved the water seepage problems and expect to complete the digging in about two months, the lawyers insisted that an independent contractor should confirm that prognosis before any construction contract is awarded.

“Otherwise, we could be committed to throwing $160 million down a mud hole,” Michael Aguirre said. “To make a commitment to proceed with phase two (the construction) before knowing whether phase one (excavation) can ever be completed would be irresponsible.”

Gary Aguirre also alleged that, cost considerations aside, a technical violation in the bids could prevent the port from awarding a construction contract at any price. According to Aguirre, the construction specifications submitted to potential bidders violated a state law governing the listing of specific products’ or materials’ brand names in bids.

State law specifies that bids on public projects must list at least two brand or trade names for all required construction materials, as well as giving the bidder the option of choosing to use a product of comparable quality, the lawsuit notes. In “many, many instances,” the port’s bids failed to do so, Gary Aguirre charged.

“There are clear-cut violations that run throughout almost every different type of trade,” Gary Aguirre said. “Generally, that creates a condition where there is reduced competitive bidding and, thus, higher prices.”

Citing those alleged violations, Michael Aguirre said, “As a practical matter, they probably will have to rebid the project. It can’t go anywhere in its present form.”

Port attorney Perry said that he would have to “review the contract documents” before commenting on that allegation.

Port commissioners have until May 18 to decide whether to accept one of the construction bids received last month or whether to seek new bids and a possible redesign of the center, a process that Commissioner William Rick has said could delay the project by at least several months and as long as two years.

The impetus for the lawsuit, Michael Aguirre said, was his “and many other taxpayers’ concerns” that port officials “seem to be inclined to move ahead” with the project despite the higher-than-expected cost.

Two task forces, one appointed by the port and the other by acting San Diego Mayor Ed Struiksma, are reviewing the project in an attempt to identify ways to reduce costs without significantly delaying its construction. Those groups, however, have been told that any attempt to eliminate the latest $22-million-plus cost overrun could result in lengthy delays and aesthetic cutbacks that could make the center considerably less attractive to potential conventioneers.