Issue: PTO Pedestrian Tunnel

Letter written to City Council by SHA President September 8, 2003:

From: Putzu Frank A NSSC
Sent: Monday, September 08, 2003 2:57 PM
To: 'ludgaines@aol.com'
Cc: 'delpepper@aol.com'; 'macdonaldcouncil@msn.com'
Subject: PTO pedestrian tunnel

You asked me to jot down some of my concerns with Docket Item number 23 for tomorrow night relating to the Update on the PTO development. Specifically, we are very concerned with the significant delay on the construction of the PTO pedestrian tunnel under Duke Street, the City Manager's August 15, 2003 memorandum and the proposed response. This is an important matter because the PTO SUP was approved in March 2000 based, in large part, on the construction of that tunnel to facilitate the use of public transportation. There has been little or no progress on the tunnel in three years. As you know, many civic associations and other organizations have requested that the occupancy permit be delayed until the tunnel is complete primarily for health and safety concerns, as well as credibility of the City. We have the following concerns with the issue as presented to Council tomorrow evening and the proposed response:

The City Manager dismisses the possibility of withholding the occupancy permit because, in his legal judgment, PTO and LCOR are not legally responsible for the delay. This conclusion is not only legally suspect, it is also inappropriate to base a decision on our view of the contractual relationship between GSA, PTO, LCOR and CDC. Which party is legally liable for the delay is a matter among the parties to the contract and provides no basis (one way or the other) for the City to reach its decision. The question is whether and how to hold CDC accountable for failure to meet a key term in the SUP. We believe that withholding the permit is not only appropriate but sends an important message that the City will enforce the plain terms of its SUPs and that parties to a SUP will be held responsible to its requirements. If that leads to GSA, PTO or LCOR having a cause of action against CDC, that is between them. Moreover, by inappropriately interjecting ourselves into a potential contractual dispute, we may also expose ourselves to potential liability if and when that dispute lands in court. In this instance, CDC is essentially alleging a "differing site condition," a well-known legal defense in federal government contracts. We should not be in the middle of this or let it affect our judgment. The issue here is that there has been a material breach of the SUP requirements, and what enforcement and accountability options are available to respond. We suggest withholding the permit.
The proposed mitigation plan significantly amends a material term of arguably the most important SUP in the history of the City. The City Manager proposed to arrogate authority from the Council and simply inform the Council of his decision. An amendment of this magnitude and import should be required to go through Planning Commission and Council with appropriate public notification and input.
The proposed response does not hold Carlyle Development Corporation (CDC) accountable for its failure to plan and construct the pedestrian tunnel. It provides for a mitigation plan that is unlikely to affect significant numbers of PTO employees or users and does not account for necessary police presence to manage several thousand people crossing Duke Street at rush hour. Moreover, part of the plan calls for closing at least part of Callahan Drive, an important road between Duke and King. These significant matters are exactly the reason why it is important to understand the nature and scope of the proposal and have public notification and input.

Those are just a couple of thoughts. Please let me know if you need anything else.