Mayor and Council Study Session, Agenda Item 6 Minutes

Legal Action Report for the Meeting of Tuesday, March 9, 2021

Introductory comments were made by Mayor Romero. She said there had been some movement on the conversation of the zoo expansion plans at Reid Park. She said she requested from her colleagues on the council and the Zoological Society to consider pausing the project at this time to reevaluate the expansion of the zoo into the west side of Reid Park.

Mayor Romero stated that there had been a number of requests to pause the project and she valued the community’s input. She said she preferred that the Mayor and Council focus on what they had in front of them and how they could find a win-win solution for all. She said she sent out a letter to the community explaining her stance to take a pause. She stated that one of her biggest asks of the Zoological Society, when they were putting the management plan together, was to have meaningful dialogue and outreach to the community. And based on that meaningful outreach and engagement of the community, that they bring forward, with the input, their master plan and that the Mayor and Council be kept engaged in the entire process.

Mayor Romero stated that for transparency sake and in order to keep the trust of the residents of Tucson, they needed to talk about how to move forward, how to pause, listen to each other and how to possibly take steps to find a win-win solution.  She asked the City Attorney to comment on some of the legal ramifications of taking a pause and how the City could move forward.

Mike Rankin, City Attorney, replied that the Mayor had basically summarized putting the project on hold. He said his role, with respect to the Mayor and Council, was to answer the questions asked regarding what the authority was to take a pause, how would that work and what were the legal implications for that type of direction. He said, to actually carry out the direction to put the project on hold, it needed action by the full legislative body, the Mayor and Council.

Mr. Rankin stated first there was the issues of the contract, three to be exact. With respect to the project, there were three City of Tucson (COT) contracts:

1. Contract between the COT and the Designer,

2. Contract between the COT and the Construction Manager at Risk, and

3. Management Agreement between the COT and the Reid Park Zoological Society.

Mr. Rankin said when the Management Agreement was put together and approved, the City was very careful to be sure that contracting authority for capital improvement projects, including the expansion, were through the City, because the zoo, at the end of the day, was a City asset. He said that was what the Management Agreement provided for; the contracts were City contracts as opposed to the Zoological Society contracts.

Mr. Rankin commented that within those contracts, and specifically the design contract and probably more the construction manager at risk contract, the City was careful to include its standard provisions through the procurement process that allowed the City to either terminate, which was not what was being proposed as he understood it, or to suspend work under those contracts, if in fact that action to suspend the contract, serves the best interest of the City.

Mr. Rankin said he was comfortable speaking publicly on this level of legal advice as to the Mayor and Council’s authority and the impacts of the decision if that was what the direction was, to suspend the work.

First, Mr. Rankin said was the Design Contract with Torre Design Company.  He said essentially, the work of the design with the project as currently conceived, was complete. So the issue of going into a hold period or suspension period did not have a lot of impact, other than if the product of this hold/suspension period there was going to be any kind of redesign or new design for a new project, there would obviously be additional design costs above those already incurred.

Mr. Rankin stated that the second contract that was more impacted by a hold/suspension of the project was the Construction Manager at Risk Contract with Lloyd Construction. He said if suspended, then work will stop, but Lloyd Construction will continue to incur certain carrying costs and the City would be responsible for paying that as such as personnel they might need to keep on board for when the project resumes, insurance costs, costs relating with to maintaining their contracts with subcontractors, etc.

Mr. Rankin advised the City had some initial conversations with Lloyd Construction to get an idea of what the consequences would be about the potential costs associated with the suspension period. He said they estimated the monthly cost was about $65,000/month. He informed that he consulted with some contracting experts and attorneys and they thought that amount was high given the fact of where the project was currently. Nonetheless, those were costs the City would be incurring during the period of the suspension.

Mr. Rankin said the third contract was the Management Agreement with the Reid Park Zoological Society. He said there was a provision in the Agreement that if there was going to be a change to the prior Master Plan (2018), that required a new stakeholder process. In addition, if that process generates an amendment, a change to the Plan, then that would need to come back to the Mayor and Council for approval.

Mr. Rankin advised, given that legal landscape, he had a recommendation for the Mayor and Council if their direction was to initiate a hold/suspension period. He said he recommended that as part of that, there were four (4) things that needed to be done:

1. Contract provisions relating to the City’s authority to suspend – the Mayor and Council needed to give the City that authority that it was in the best interest of the City. Any direction to suspend needed to make that finding very clear.

2. If there is a period of suspension, it was critical that the City Manager knows what the purpose of the suspension is and what he is expected to accomplish during the time of the suspension.

3. Time frame for the suspension should be identified for the item to return to the Mayor and Council.

4. Per the Management Agreement, a public process was required for any amendment to the 2018 Master Plan, and then the Mayor and Council, as part of any direction to suspend, should give guidance as to what the expectations are for the public process so that it can be carried out within the time frame identified.

Discussion ensued.

Additional comments were made by Mayor Romero, Vice Mayor Lee and Council Members Fimbres, Kozachik, Cunningham, and Uhlich both in support and opposition to the suspension/hold on the project.

It was moved by Council Member Fimbres, duly seconded, that the Mayor and Council direct the City Manager to take all actions necessary to suspend or pause the Expansion Project and the associated design and construction contracts for 45 days and that the City Manager organize a mediated, intentional dialogue with a representative and diverse group of community stakeholders to discuss potential options for compromise. The group should meet as many times as needed, and consist of representatives from neighborhoods surrounding Reid Park, Save the Heart of Reid Park, Parks and Recreation, the Zoological Society, and representatives from Wards 6 and 5.

Discussion ensued.

A friendly amendment was made by Council Member Kozachik that the Zoological Society be held harmless for any added costs or losses incurred as a result of the suspension. The friendly amendment died due to a lack of a second.

Mr. Rankin again asked that any motion given to suspend the expansion make a specific finding that the decision was based on the best interest of the City for the reason he mentioned earlier with respect to the contracts. He also addressed the issue raised by Council Member Kozachik in that any of the private funding raised by the Reid Park Zoological Society could not be used towards any costs associated with the suspension.

Mayor Romero asked if the motion maker was willing to accept the language outlined by the City Attorney as part of their motion.

Council Member Fimbres replied in the affirmative, that it was always in the best interest of the City. The seconder of the motion was also in agreement.

Discussion continued.

The motion, with the added language that it was in the best interest of the City, was PASSED by a roll call vote of 6 to 1 (Council Member Kozachik dissenting).

View the Tuesday, March 9, 2021 meeting minutes on the City of Tucson website.