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HomeMy WebLinkAbout03-02-11 Common Council Meeting AgendaOFFICIAL NOTICE OF MEETING A Regular meeting of the Common Council will be held on Wednesday March 2, 2011, at 6:00 p.m. in the Common Council Chambers at City Hall, 108 East Green Street, Ithaca, New York. Your attendance is requested. AGENDA 1. PLEDGE OF ALLEGIANCE: 2. ADDITIONS TO OR DELETIONS FROM THE AGENDA: 3. PROCLAMATIONS/AWARDS: 4. SPECIAL ORDER OF BUSINESS: 5. SPECIAL PRESENTATIONS BEFORE COUNCIL: 5.1 Update from the City of Ithaca Youth Council 6. PETITIONS AND HEARINGS OF PERSONS BEFORE COUNCIL: 7. PRIVILEGE OF THE FLOOR – COMMON COUNCIL AND THE MAYOR: 8. CONSENT AGENDA ITEMS: City Administration Committee: 8.1 Police Department Request to Amend 2011 Budget - Resolution 8.2 Human Resources Request to Amend the Human Resources Department 2011 Budget – Resolution 8.3 IURA - Downtown Housing Market Study Funding Request - Resolution 9. PLANNING & ECONOMIC DEVELOPMENT COMMITTEE: No items were submitted for the agenda. 10. CITY ADMINISTRATION COMMITTEE: 10.1 IURA - Establish Capital Project for Ithaca Falls Overlook Investigation and Remediation Project - Resolution 10.2 Information Technology - Policy Regarding Appropriate Use of Computer, Network and Phone Resources 10.3 Planning & Development - Establishment of Trust Fund for Martin Luther King Jr. Freedom Walkway - Resolution 10.4 DPW - Intersection Bulb-outs on West Green & West Seneca Street at Corn and Plain Streets - Resolution 10.5 DPW - Master Agreement for Floral Avenue Multi-Use Trail Facility - Resolution 10.6 DPW - Master Agreement for Traffic Signal Upgrade Phase II - Resolution 10.7 Human Resources - Request For Extension of Supplemental Military Leave Benefits – Resolution 10.8 Human Resources - Amendment to Personnel Roster – Resolution 10.9 Human Resources - Request To Transfer Funds From Unrestricted Contingency Resolution Common Council Agenda March 2, 2011 Page 2 10. CITY ADMINISTRATION COMMITTEE (CONTINUED): 10.10 Attorney’s Office - A Local Law to Amend the Charter of the City of Ithaca, Section C-10 (“Election and terms of office of Mayor, Judge and Council members”), to provide for certain two-year terms following the federal census in conjunction with the possible redistricting of City wards. 10.11 Attorney’s Office - Approval of Agreement between Village of Cayuga Heights and the City for Building Inspection Services - Resolution 10.12 City Controller’s Report 11. REPORTS OF SPECIAL COMMITTEES: 12. NEW BUSINESS: 12.1 Viva Taqueria & Cantina Alcohol Permit Request - Resolution 12.2 Possible Motion to Enter Into Executive Session to Discuss Possible Litigation - Resolution 13. INDIVIDUAL MEMBER – FILED RESOLUTIONS: 13.1 Alderperson Zumoff - Endorsement of and Authorization to Implement the Allocation of Costs Associated with a Lawsuit Against the City of Ithaca Regarding the Ithaca Area Wastewater Treatment Facility Site (NYSEG v. FirstEnergy Corp.; FirstEnergy Corp. v. City of Ithaca, et al) - Resolution 14. MAYOR’S APPOINTMENTS: 14.1 Reappointment to Civil Service Commission – Resolution 15. REPORTS OF COMMON COUNCIL LIAISONS: 16. REPORT OF CITY CLERK: 17. REPORT OF CITY ATTORNEY: 18. MINUTES FROM PREVIOUS MEETINGS: 18.1 Approval of the January 31, 2011 Special Meeting Minutes – Resolution 18.2 Approval of the February 2, 2011 Regular Meeting Minutes – Resolution 18.3 Approval of the February 8, 2011 Special Meeting Minutes – Resolution 19. ADJOURNMENT: If you have a disability that will require special arrangements to be made in order for you to fully participate in the meeting, please contact the City Clerk at 274-6570 at least 48 hours before the meeting. ______________________________ Julie Conley Holcomb, CMC City Clerk Date: February 25, 2011 8. CONSENT AGENDA ITEMS: City Administration Committee: 8.1 Police Department Request to Amend 2011 Budget - Resolution WHEREAS, the Ithaca Police Department will be hosting a training titled “Traffic Crash Reconstruction I” and WHEREAS, the course cost is $1,100 per participant with 12 participants expected, and WHEREAS, the tuitions paid by participants will be used to pay for expenses related to the course, and WHEREAS, the training course was not part of the 2011 authorized Police Department budget; now, therefore be it RESOLVED, That Common Council hereby approves the following 2011 budget amendment for the purpose of accounting for said training program in the amount of $13,200 as follows: Increase Revenue Account: A3120-2770 Unclassified Revenue $13,200 Increase Appropriation Account: A3120-5440-5001 Staff Development $13,200 8.2 Human Resources Request to Amend the Human Resources Department 2011 Budget - Resolution WHEREAS, the City of Ithaca has included in its 2011 authorized budget $5,000 for thirty (30) city employees to participate in the 2011 Undoing Racism series facilitated by David Billings from the People’s Institute for Survival and Beyond, nationally recognized as one of the foremost anti-racism training and organizing institutions in the nation, and WHEREAS, the City of Ithaca is one of several local employers participating in this valuable experience and has agreed to serve as the point of contact for contracting with David Billings, and WHEREAS, local employers have committed up to the sum of $10,000 additional funds for a total not to exceed the sum of $15,000 that will be paid to the City of Ithaca to cover the cost of their employees participating, and WHEREAS, the City will issue a lump sum payment not to exceed $15,000 to David Billings for all participants; now therefore be it RESOLVED, That Common Council hereby amends the 2011 authorized budget for the Human Resources Department by an amount not to exceed $10,000 for the purposes of accounting for the 2011 Undoing Racism Series facilitated by David Billings as follows: Increase Revenue Account: A1430-2705 Donations $10,000 Increase Appropriation Account: A1430-5440 Staff Development $10,000 8.3 IURA - Downtown Housing Market Study Funding Request - Resolution WHEREAS, the Downtown Ithaca Alliance (DIA) proposes to commission a comprehensive housing market study for downtown and center city, and WHEREAS, the DIA has received a proposal to conduct such a study from the Danter Company, a nationally renowned housing market research firm specializing in residential market studies, and WHEREAS, the study will provide an analysis of the overall demand for market-rate and affordable multi-family apartments and condominiums in the downtown area by rent/sales price, unit mix, unit size and absorption rate, and WHEREAS, the study will additionally analyze the impact on housing demand if an enhanced public transportation system connecting downtown to Cornell University and Ithaca College were developed, and WHEREAS, the cost of the study is $12,250, and WHEREAS, the DIA has committed $5,250 toward the study, and seeks match funding from Tompkins County, City of Ithaca, Cornell University and Ithaca College, and WHEREAS, the DIA requests $2,000 in funding from the City of Ithaca for this housing market study, and WHEREAS, the 2011 City of Ithaca budget includes $167,000 in the unrestricted account, and WHEREAS, the results of the study will assist the public and private sector in developing housing in the downtown area that would meet market demand, assess the impact on housing demand of developing an enhanced public transit system, and provide baseline housing data for development of the City’s Comprehensive Plan Update; now, therefore, be it RESOLVED, That the City of Ithaca Common Council does hereby authorize the City Controller to make payment of an amount not to exceed $2,000 to the Downtown Ithaca Alliance for a portion of the cost of a downtown housing market study to be conducted by the Danter Company, and be it further RESOLVED, That funding for this expense shall be transferred from Account # A1990 – unrestricted contingency to Account A1010-5435 Common Council contracts. 10. CITY ADMINISTRATION COMMITTEE: 10.1 IURA - Establish Capital Project for Ithaca Falls Overlook Investigation and Remediation Project - Resolution WHEREAS, the City of Ithaca (City) executed a State Assistance Contract (SAC) with the New York State Department of Environmental Conservation for $700,200 through the Environmental Restoration Program (ERP) for the City-owned Ithaca Falls Overlook site, and WHEREAS the 0.95 acre Ithaca Falls Overlook site adjoins the former Ithaca Gun factory building and extends from Lake Street North over the raceway to an overlook of Ithaca Falls, and WHEREAS, capital project funding will be used to conduct an investigation to determine the nature and define the limits of contamination both on-site and off-site and devise alternative strategies to remediate environmental contamination for a future public park use and facilitate private-sector redevelopment of the adjoining former Ithaca Gun factory site, and WHEREAS, the project is also anticipated to include interim remedial measures to remove existing sources of contamination, including subsurface lead contamination, and WHEREAS, the ERP program provides 90% reimbursement for eligible on-site expenses and 100% reimbursement for eligible off-site expenses, and WHEREAS, the estimated total project cost is $778,000, and WHEREAS, the 10% local match ($77,800) has been pledged to the City by the redeveloper of the former Ithaca Gun factory site, Travis and Travis Development, LLC per a public/private redevelopment agreement executed on September 25, 2007, and WHEREAS, the investigation phase of the ERP qualifies as a Type II action under the City of Ithaca Environmental Quality Review Ordinance at §176-5(C)(17): “Information collection, including basic data collection and research, water quality and pollution studies, traffic counts, engineering studies, surveys, subsurface investigations and soils studies that do not commit the agency to undertake, fund or approve any Type I or unlisted action”, and WHEREAS, should the site investigation recommend undertaking any interim remedial measures to remove source contamination, such action shall undergo a separate environmental review; now, therefore, be it RESOLVED, That the Common Council hereby establishes Capital Project # 768 Ithaca Falls Overlook Investigation & Remediation in an amount not to exceed $778,000 for the purpose of accounting for project expenses to be reimbursed from the ERP program and Travis and Travis Development, LLC, and be it further RESOLVED, That funds needed for said Capital Project be derived from the issuance of bonds or the advance from the General Fund with later repayment from the ERP and Travis Development. 10.2 Information Technology - Policy Regarding Appropriate Use of Computer, Network and Phone Resources - Resolution WHEREAS, the Department of Information Technology has collaborated with City staff as a whole to develop a policy regarding the appropriate use of computer, network and phone resources; now, therefore, be it RESOLVED, That Common Council hereby adopts the “Policy Regarding Appropriate Use of Computer, Network and Phone Resources” dated February 15, 2011. Policy Regarding Appropriate Use of Computer, Network and Phone Resources City of Ithaca Draft 2/15/11 1.0 Overview The City of Ithaca is committed to protecting the City's employees, partners and the municipality from illegal or damaging actions performed knowingly or unknowingly by individuals while using the City’s computer, network, and phone resources. Such resources include but are not limited to computer equipment, phone equipment, cell phones, software, operating systems, storage media, electronic mail, World Wide Web browsers, and file transfer tools. These resources and/or related licenses are the property of the City and are to be used only for business purposes in serving the interests of the City, its partners and its customers, with the exception of allowable incidental personal use. It is the responsibility of every user of a City computer, network, or phone resource to know this policy, and to conduct activities accordingly. Note that the usage of the term “network” throughout this document refers to all wired and wireless data and communication networks owned or leased by the City that constitute the City’s Institutional Network, or that connect to the City’s Institutional Network either directly via a network interconnection or indirectly via a device that resides within the City’s Institutional Network. 2.0 Definitions Term Definition Denial of Service Preventing legitimate users of a service from using that service. Forged Routing Routing information which is misleading or incorrect or which Information would tend to disguise the origin of the routed material. Usually refers to information that is not generated by any routing device (such as a mail server), but is inserted by a party using software which is designed to produce false routing information (headers in the case of E-mail). Can provide unauthorized access to a computer resource or generate denial-of-service attacks. Log in or login To gain secured access to a computer, or to a resource accessed through a computer, by use of credentials assigned. Typically, credentials consist of a user name or account name, and an associated password. Log off or logoff To discontinue secured access to a computer or to a resource accessed through a computer. Malware Any computer code created and distributed for malicious purposes. Network Sniffing A process of observing all of the traffic flowing into and out of a computer attached to a network. Similar to eavesdropping on a phone line. Packet Spoofing One of the most common forms of on-line camouflage that allows an attacker to gain unauthorized access to a computer or a network. Pinged Flood A simple type of denial-of-service attack. Pop-up A form of web advertising or dialog box that appears in a new window. Port Scanning Probing a computing resource that is connected to the network to discover information about its access points. Hackers use this method to test for possible weaknesses. Security Scanning A means of testing a network for security vulnerabilities. Spam Unauthorized and/or unsolicited electronic mass mailings. 3.0 Purpose The purpose of this policy is to set forth the acceptable use of computer, network, and phone resources of the City of Ithaca. The goals are to protect the user and the City, to facilitate excellent service to the community, and to ensure the appropriate use of taxpayer funds. Inappropriate use of these resources exposes the City to risks including malware attacks; unauthorized access to City computer, network, and phone resources; and legal consequences. 4.0 Scope This policy applies to all employees, contractors, consultants and other workers in the City, including all personnel affiliated with third parties, who access any computer, network, or phone resource that is owned or leased by the City. 5.0 Policy 5.1 General Use and Ownership 1. Users of the City’s computer, phone and network resources must be aware that the data they create and/or store on the City's systems remains the property of the City of Ithaca. Because of the need to protect the City's assets and interests, management cannot guarantee the privacy of information stored on any computer, network, or phone resource belonging to the City with the exception of legally confidential information. 2. Users of the City’s computer, phone and network resources may use them for incidental personal purposes in a manner that does not violate any City policy nor interfere with the performance of their duties nor incur any cost to the City. 3. The City reserves the right to audit computer, network and phone resources as needed to ensure compliance with this policy. a. The Director of Human Resources, Director of Information Technology, or a department head may request an audit of any computer, network or phone resource to investigate possible misuse when a reasonable suspicion might arise. The respective department head and either the Director of Human Resources (or her/his designee) or the Director of Information Technology (or her/his designee) must be present for the audit. The audit must be performed by a computer technician designated by the Director of Information Technology; and the date, time and outcome of the audit must be documented. b. A Department Head may request an audit of any computer, network or phone resource in their departments for a legitimate business purpose, e.g., the need to access information when an employee is absent for an extended period of time. The department head (or her/his designee) and the Director of Information Technology (or her/his designee) must be present for the audit. The audit must be performed by a computer technician designated by the Director of Information Technology; and the date, time and outcome of the audit must be documented. c. The Director of Information Technology (or her/his designee) may access computer, network and phone resources as needed to resolve an emergency. An emergency occurs during a disruption to a service essential to the operation of any department. 5.2 Security and Confidential Information 1. Users shall take all necessary and prudent steps to prevent unauthorized access to the City’s computer, network and phone resources, and to the City’s data. 2. Authorized users are responsible for the security of their passwords and accounts, and shall not share accounts and/or passwords. 3. Login access to all computer, network and phone resources must be secured using a security measure approved by the Department of Information Technology. Users must log off any resource that will go unattended for 15 or more minutes; and the automatic logoff feature must be set to activate if the resource goes unused for 15 minutes. 4. Postings by any employee or agent of the City to any newsgroups, message boards, Web forums or other public forums from a City email address or by use of any City electronic resource must be consistent with the responsibilities and professional standards of their position. 5. All computer, network or phone resources, whether owned by the user or the City, when connected to the City network shall continually execute approved anti-virus software with a current set of virus definitions. 6. Users must use extreme caution when opening e-mail attachments received from unknown senders. Such attachments may contain viruses, worms, e-mail bombs, Trojan horse code, or other forms of malware. 7. Users must use caution with pop-ups that appear via a web browser. If possible, they should activate the pop-up blocker provided with their web browser. Pop-ups often provide a means for malware to transfer onto a computer. The most dangerous are pop- ups that announce a malware infection on your computer which can be sanitized using their advertised anti-virus or security solution. This deceptive advertising provides no solution; instead, it actually transfers malware onto your computer. 8. For security and network maintenance purposes, individuals authorized by the Director of Information Technology may monitor equipment, systems and network traffic at any time. 5.3 Unacceptable Use The following activities are prohibited. Some users may be exempted from certain of these restrictions if their legitimate job responsibilities require them to perform actions otherwise defined as unacceptable (e.g., systems administration staff may have a need to disable the network access of a device if that device is disrupting production services). However, under no circumstances is an employee or agent of the City authorized or permitted to engage in any activity that is illegal under local, state or federal law while utilizing City-owned resources. 5.3.1 System and Network Activities The following activities are prohibited: 1. Violations of laws or regulations pertaining to copyright, trade secret, patent or other intellectual property rights, including, but not limited to, the installation or distribution of "pirated" or other software products that are not appropriately licensed for use by the City. 2. Revealing one’s account password to others or allowing use of one’s account by others. This includes family and other household members when work is being done at home. 3. Allowing use of City-owned equipment and resources by unauthorized persons including family and other household members. 4. Using a City computer, network or phone resource to deliberately engage in procuring or transmitting material that is in violation of or inconsistent with the following City rules or policies (except when doing so is solely for the purpose of fulfilling the user’s normal job duties, such as investigation of a crime or violation of policy): a. Sexual Harassment Policy, b. Workplace Violence Prevention Policy, c. Employee Standards of Conduct, d. Code of Ethics, e. Electronic Mail Policy, f. Other City policies. 5. Intentionally causing security breaches or disruptions of City network resources. Security breaches include, but are not limited to, accessing data of which the user is not an intended recipient, or logging into a server or account that the user is not expressly authorized to access, unless these actions are within the scope of regular duties. For purposes of this section, "disruption" includes, but is not limited to, network sniffing, pinged floods, packet spoofing, denial of service, and forged routing information for malicious purposes. (Please see section 2 above for definitions). 6. Port scanning or security scanning is expressly prohibited unless this activity is a part of the user's normal job duties. (Please see section 2 above for definitions). 7. Executing any form of network monitoring which will intercept data not intended for the user, unless this activity is a part of the user's normal duties. 8. Circumventing user authentication practices or other security measures related to any equipment, network or account, unless this activity is a part of the user's normal job duties. 9. Intentionally interfering with or denying service to any user or device (for example, denial of service attack). (Please see section 2 above for definitions). 10. Using any program, script or command, or sending messages of any kind, with the intent to interfere with a user's terminal session or network connection, either locally or via the Internet. 11. Connecting an unauthorized device such as a router, switch, hub, phone, or computer to the City’s data or phone networks except as allowed either via advertised guest accounts or by approval of the Director of Information Technology. 12. Providing information about computer or electronic accounts of City employees to parties outside the City, except as a part of one’s normal job duties. 13. Accessing Internet Radio, Internet Television and/or other audio or video streaming of a commercial or entertainment nature may be done only for work-related activity. Any exception must be approved by the involved department head and the mayor, and may be rescinded by either. 14. Use of Internet file sharing services that function by means of peer-to-peer network protocols, and/or that are known to facilitate the illegal distribution of copyrighted materials. Such networks include but are not limited to Kazaa, BitTorrent, The Pirate Bay, etc. 15. Use of a computer or other digital devices while driving except as allowed by state or federal law. 5.3.2 Email and Phone Activities The following activities are prohibited: 1. Any form of harassment via email, telephone or other communication device, whether through offensive language or images, or through unreasonable frequency, size, and/or type of messages. 2. Unauthorized use, or forging, of email header information. 3. Creating or forwarding "chain letters" or "Ponzi" or other "pyramid" schemes of any type. 4. Use of text messaging except as required for City business purposes. 5. Use of a cell phone or other portable communication devices while driving except as allowed by state or federal law. 6. Downloading files, ringtones and games except as required for business purposes. 6.0 Implementation and Enforcement The Director of Information Technology is responsible for the proper implementation of this policy and for monitoring the use of City computer, network and phone resources. Any user of the City’s computer, phone or network resources found to have violated this policy may be subject to disciplinary action, up to and including termination of employment. Any violation shall be reported to the user’s supervisor who will be responsible for deciding upon the appropriate discipline with guidance from the Human Resources Department. 7.0 Revision History 10.3 Planning and Development - Establishment of Trust Fund for Martin Luther King Jr. Freedom Walkway - Resolution WHEREAS, in 2008 Mayor Carolyn Peterson established a committee charged with the planning and implementation of a walk to commemorate the life, work, and spirit of Martin Luther King Jr., and the struggles for civil rights and social justice, and WHEREAS, the Martin Luther King Jr. Freedom Walkway Implementation Committee has met regularly since its establishment and over that time has developed a conceptual plan for the content and physical manifestation of such a trail, and WHEREAS, in 2010 the Committee conducted several activities to highlight progress of the freedom walk and to engage members of the public, including a design competition for the development of a project logo and the development of a relationship with artist Rob Licht who has been commissioned by a private donor to create a sculpture commemorating Martin Luther King Jr. that, by way of agreement with the artist, will constitute the first “marker” of the Martin Luther King Jr. Freedom Walkway, and WHEREAS, on November 9th 2010, the Committee hosted a “Launch Party” at the Community School of Music and Art, open to all and attended by 35 – 45 people representing a broad spectrum of the Ithaca community, and WHEREAS, the “launch” celebrated the unveiling of the initial Southside and Northside trail “loops,” the unveiling of the winning logo design and announcement of the winning artist, and the unveiling of a wax model of Rob Licht’s work in progress, and WHEREAS, at the launch, Committee Chairperson Leslyn McBean Clairborne encouraged attendees to get involved with the project and enumerated several specific means of involvement including monetary donations for planning and implementation of the Martin Luther King Jr. Freedom Walkway, and WHEREAS, donated funds could be used for items including, but not limited to, consultant contracts for research and development; fees for physical aspects of the trail including artist and designer fees, fabrication of markers and signs, and development and implementation of printed and electronic interpretive materials, and WHEREAS, several donations were made to the Martin Luther King Jr. Freedom Walkway, both during and after the launch event, and WHEREAS, the Greater Ithaca Activities Center agreed to hold the funds in trust for a limited time in order to give the Committee time to procure a permanent fund, and WHEREAS, Committee staff has discussed with the City Controller the proposal to establish a trust fund such that interested donors can make tax deductible donations to the Martin Luther King Jr. Freedom Walkway, and the City Controller has suggested the Committee seek approval from the Common Council; now, therefore, be it RESOLVED, That the City of Ithaca Common Council establishes a trust fund dedicated to the planning and implementation of the City of Ithaca Martin Luther King Jr. Freedom Walkway. 10.4 DPW - Intersection Bulb-outs on West Green & West Seneca Street at Corn and Plain Streets - Resolution WHEREAS, a Project for the Intersection Bulb-outs on West Green & West Seneca at Corn and Plain Streets, P.I.N. 375462 (the “Project”) is eligible for funding under Title 23 U.S. Code, as amended, that calls for the apportionment of the costs of such program to be borne at the ratio of 80% Federal funds and 20% non-federal funds, and WHEREAS, the City of Ithaca desires to advance the Project by making a commitment of 100% of the non-federal share of the costs of Preliminary Engineering/Design; and WHEREAS, preliminary engineering and design are exempt from further environmental review as Type II actions; now, therefore be it RESOLVED, That the Common Council hereby approves the above-subject project, subject to further environmental review of construction, and be it further RESOLVED, That the Common Council hereby authorizes the City of Ithaca to pay in the first instance 100% of the federal and non-federal share of the cost of Preliminary Engineering/Design work for the Project or portions thereof, and be it further RESOLVED, That the sum of $36,000 is hereby appropriated from the issuance of serial bonds or General Fund advance and made available to cover the cost of participation in the above phase of the Project, and it is further RESOLVED, That Common Council hereby creates Capital Project # 769, Intersection Bulb-outs on West Green & West Seneca Street, to include the Project costs of $36,000, and be it further RESOLVED, That in the event the full federal and non-federal share costs of the project exceeds the amount appropriated above, the Common Council of the City of Ithaca shall convene as soon as possible to appropriate said excess amount immediately upon the notification by the New York State Department of Transportation (NYSDOT) thereof, and be it further RESOLVED, That the Mayor of the City of Ithaca be and is hereby authorized to execute all necessary Agreements, certifications or reimbursement requests for Federal Aid on behalf of the City of Ithaca with the NYSDOT in connection with the advancement or approval of the Project and providing for the administration of the Project and the municipality’s first instance funding of Project costs and permanent funding of the local share of federal-aid and state-aid eligible Project costs and all Project costs within appropriations therefore that are not so eligible, and be it further RESOLVED, That this project be undertaken with the understanding that the final cost of the Project to the City of Ithaca will be roughly 20% of said portion, currently estimated at $7,200 of the $36,000 authorized for this portion of the project, in monies and in-kind services as managed by the Superintendent of Public Works and monitored by the City Controller, and be it further RESOLVED, That a certified copy of this resolution be filed with the New York State Commissioner of Transportation by attaching it to any necessary Agreement in connection with the Project, and be it further RESOLVED, This Resolution shall take effect immediately. 10.5 DPW - Master Agreement for Floral Avenue Multi-Use Trail Facility - Resolution (A resolution authorizing implementation and funding in the first instance 100% of the federal aid-eligible costs and State “Marchiselli” program-aid eligible costs, of a transportation federal-aid project, and appropriating funds therefore.) WHEREAS, a Project for the Floral Avenue Multi-Use Trail Facility, P.I.N. 375463 (the “Project”) is eligible for funding under Title 23 U.S. Code, as amended, that calls for the apportionment of the costs of such program to be borne at the ratio of 80% Federal funds and 20% non-federal funds, and WHEREAS, the City of Ithaca desires to advance the Project by making a commitment of 100% of the non-federal share of the costs of Preliminary Engineering/Design and Right-of-Way Incidentals; and WHEREAS, preliminary engineering and design are exempt from further environmental review as Type II actions; now, therefore be it RESOLVED, that the Common Council hereby approves the above subject project, subject to further environmental review of construction, and be it further RESOLVED, That the Common Council hereby authorizes the City of Ithaca to pay in the first instance 100% of the federal and non-federal share of the cost of Preliminary Engineering/Design and Right-of-Way Incidentals work for the Project or portions thereof, and be it further RESOLVED, That the sum of $92,000 is hereby appropriated from the issuance of serial bonds or General Fund advance and made available to cover the cost of participation in the above phase of the Project, and be it further RESOLVED, That Common Council hereby creates Capital Project # 770, Floral Avenue Multi-Use Trail Facility, to include the Project costs of $92,000, and be it further RESOLVED, That in the event the full federal and non-federal share costs of the project exceeds the amount appropriated above, the Common Council of the City of Ithaca shall convene as soon as possible to appropriate said excess amount immediately upon the notification by the New York State Department of Transportation (NYSDOT) thereof, and be it further RESOLVED, That the Mayor of the City of Ithaca be and is hereby authorized to execute all necessary Agreements, certifications or reimbursement requests for Federal Aid on behalf of the City of Ithaca with the New York State Department of Transportation in connection with the advancement or approval of the Project and providing for the administration of the Project and the municipality’s first instance funding of Project costs and permanent funding of the local share of federal-aid and state-aid eligible Project costs and all Project costs within appropriations therefore that are not so eligible, and be it further RESOLVED, That this project be undertaken with the understanding that the final cost of the Project to the City of Ithaca will be roughly 20% of said portion, currently estimated at $18,400 of the $92,000 authorized for this portion of the project, in monies and in-kind services as managed by the Superintendent of Public Works and monitored by the City Controller, and be it further RESOLVED, That a certified copy of this resolution be filed with the New York State Commissioner of Transportation by attaching it to any necessary Agreement in connection with the Project, and be it further RESOLVED, This Resolution shall take effect immediately. 10.6 DPW - Master Agreement for Traffic Signal Upgrade Phase II - Resolution (A resolution authorizing implementation and funding in the first instance 100% of the federal aid-eligible costs and State “Marchiselli” program-aid eligible costs, of a transportation federal-aid project, and appropriating funds therefore.) WHEREAS, a Project for the Traffic Signal Upgrade Phase II, P.I.N. 375464 (the “Project”) is eligible for funding under Title 23 U.S. Code, as amended, that calls for the apportionment of the costs of such program to be borne at the ratio of 80% Federal funds and 20% non-federal funds, and WHEREAS, the City of Ithaca desires to advance the Project by making a commitment of 100% of the non-federal share of the costs of Preliminary Engineering and Design; and WHEREAS, the installation of traffic signals is a Type II Action exempt from further environmental review; now, therefore be it RESOLVED, That the Common Council hereby approves the above-subject project, and be it further RESOLVED, That the Common Council hereby authorizes the City of Ithaca to pay in the first instance 100% of the federal and non-federal share of the cost of Preliminary Engineering and Design work for the Project or portions thereof, and be it further RESOLVED, That the sum of $174,000 is hereby appropriated from the issuance of serial bonds and made available to cover the cost of participation in the above phase of the Project, and be it further RESOLVED, That Common Council, as part of the 2011 authorized budget, established Capital Project # 765, Traffic Signal Upgrade Phase II, with a project cost of $174,000 and be it further RESOLVED, That in the event the full federal and non-federal share costs of the project exceeds the amount appropriated above, the Common Council of the City of Ithaca shall convene as soon as possible to appropriate said excess amount immediately upon the notification by the New York State Department of Transportation (NYSDOT) thereof, and be it further RESOLVED, That the Mayor of the City of Ithaca be and is hereby authorized to execute all necessary Agreements, certifications or reimbursement requests for Federal Aid on behalf of the City of Ithaca with the New York State Department of Transportation in connection with the advancement or approval of the Project and providing for the administration of the Project and the municipality’s first instance funding of Project costs and permanent funding of the local share of federal-aid and state-aid eligible Project costs and all Project costs within appropriations therefore that are not so eligible, and be it further RESOLVED, That this project be undertaken with the understanding that the final cost of the Project to the City of Ithaca will be roughly 20% of said portion, currently estimated at $34,800 of the $174,000 authorized for this portion of the project, in monies and in-kind services as managed by the Superintendent of Public Works and monitored by the City Controller, and be it further RESOLVED, That a certified copy of this resolution be filed with the New York State Commissioner of Transportation by attaching it to any necessary Agreement in connection with the Project, and be it further RESOLVED, This Resolution shall take effect immediately. 10.7 Human Resources - Request For Extension of Supplemental Military Leave Benefits - Resolution WHEREAS, on November 7, 2001, October 2, 2002, February 5, 2003, and June 6, 2007, Common Council passed resolutions providing Supplemental Military Leave benefits for City employees who were called to active military duty due to the wars in Iraq and Afghanistan, and WHEREAS, the Supplemental Military Leave benefits granted by Common Council expired on December 31, 2008, and WHEREAS, Reservists continue to be called to active military duty due to the wars in Iraq and Afghanistan, and WHEREAS, it continues to be the desire of Common Council to ease the financial strain on the families of those Reservists continuing to serve their country due to active military action; now, therefore be it RESOLVED, That upon the signing of a Memorandum of Understanding with the CSEA Administrative Unit, CSEA Department of Public Works Unit, Police Benevolent Association, Ithaca Professional Firefighters Association, Chief Officers Unit, and the City Executive Association, the City will pay the difference between the military pay received from the United States Government and/or the State of New York by a City employee in such unit or association and the base City salary such employee would have received for his/her regularly scheduled work week if such employee had not been called to active duty, through March 31, 2012, and be it further RESOLVED, That in the event that an employee’s military pay exceeds or equals his/her base City salary, no supplemental pay shall be authorized, and be it further RESOLVED, That upon the signing of a Memorandum of Understanding with the CSEA Administrative Unit, CSEA Department of Public Works Unit, Police Benevolent Association, Ithaca Professional Firefighters Association, Chief Officers Unit, and the City Executive Association, the City will hereby continue to provide individual and family health insurance coverage, in the same manner as it was provided when the employee was working, through March 31, 2012, for those employees called to active duty. 10.8 Human Resources Department - Amendment to Personnel Roster – Resolution WHEREAS, the Manager of Organizational Development has been called to active military duty for a minimum of twelve months, and WHEREAS, in recognition of the City’s budget situation, the Human Resources Department is willing to leave the position vacant during the Manager of Organizational Development’s absence, and WHEREAS, the Human Resources Department will attempt to utilize existing staff to absorb some of the position’s responsibilities, and will reduce or suspend the provision of other services during the Manager of Organizational Development’s absence, and WHEREAS, the Deputy Director of Human Resources has agreed to return to a full-time work schedule to assist with this interim staffing plan, and WHEREAS, this interim staffing plan will result in a significant budgetary savings for the City; now therefore, be it RESOLVED, That Common Council hereby amends the 2011 authorized Personnel Roster for the Human Resources Department as follows: the workweek of the position of Deputy Director of Human Resources is hereby increased from thirty (30) hours/week to forty (40) hours/week effective immediately. 10.9 Human Resources - Request To Transfer Funds From Unrestricted Contingency - Resolution WHEREAS, in 2010, Mayor Carolyn K. Peterson formed an a working group to develop and institute performance measures for all City Departments, and WHEREAS, in 2011, Common Council provided funding to hire a consultant to work with the City on organizational effectiveness strategies, and WHEREAS, the working group has drafted a Request For Proposals to develop an Organizational Effectiveness Framework that will enable the City to operate as effectively and efficiently as possible, especially given the lean economic times, and WHEREAS, in addition to the organizational effectiveness work to be conducted by the consultant, the working group has determined that it is necessary and prudent to conduct a survey to identify the services most important to the City residents, identify resident attitudes toward city services, understand what services enhance the quality of life for city residents, as well as establish a baseline for future surveys, and WHEREAS, it is believed that the results of said survey will enable the City to align its limited budgetary resources with city priorities, and WHEREAS, the working group has identified a local resource, the Survey Research Institute at Cornell, to develop a survey instrument , conduct a city-wide survey, and analyze the survey, utilizing best practices, now therefore be it, RESOLVED, That Common Council hereby authorizes the Controller to transfer an amount not to exceed $6,500 from account A1990 unrestricted contingency to account A1430 5430 Human Resources Fees for the purposes of funding said survey. 10.10 Attorney’s Office - A Local Law to Amend the Charter of the City of Ithaca, Section C-10 (“Election and terms of office of Mayor, Judge and Council members”), to provide for certain two-year terms following the federal census in conjunction with the possible redistricting of City wards WHEREAS, the federal census of the population is conducted every ten years, in years ending in “0”, such as 2010; and WHEREAS, following any such census, it may be necessary to adjust the boundaries or number of wards in the City of Ithaca, in order to ensure equitable representation as required by law and/or to achieve other desirable objectives; and WHEREAS, the Common Council intends for any such redistricting to be in effect in the City for the 2013 general election (following thorough study and consideration of the 2010 census data and of various options for addressing ward composition in conjunction therewith); and WHEREAS, in order to avoid the confusing situation where one alderperson from a ward is representing the “old” ward area (as defined before redistricting), and the other is representing the “new” ward area (post-redistricting), the Council has, after each census since at least 1980, provided for two-year terms for those alderpersons elected in the following year (e.g., 1981, 1991, etc), and, in the subsequent local election year (e.g., 1983, 1993, etc), for one-half of those alderpersons elected to have two-year terms, while the other half have four-year terms; and WHEREAS, the Council wishes to use this same approach following the 2010 federal census, and to institutionalize it for future decades; and WHEREAS, State Election Law requires the City Clerk, at least eight months before each general election, to certify to the Board of Elections which offices will be voted on at such election; now therefore Local Law ___ - 2011 BE IT ENACTED by the Common Council of the City of Ithaca as follows: Section 1: Section C-10 of the Charter of the City of Ithaca is hereby amended (subject to mandatory by the electors of the City) to read as follows: [Language to be deleted is so designated;” language to be added is underlined.] § C-10. Election and terms of office of Mayor, Judge and Council members. A. At the general election held in November 1995, and in every four years thereafter, a Mayor shall be elected for a term of four years. At the general election held in November 1989 and each sixth year thereafter, a City Judge shall be elected for a term of six years. At the general elections held in November 1983 and in November 1985, one Council member shall be elected from each of the [five new] City wards, as described in § C-3 of the Ithaca City Charter, for a term of four years. Thereafter[,] (except as described in the following paragraph), in each odd-numbered year, one Council member shall be elected from each such ward,_for a term of four years, in place of the Council member from that ward whose term of office shall next thereafter expire. [, such Council member to hold office for a term of four years.] Nothing in this section shall operate to shorten the term of any public officer in office. In the case of any special election for the office of any Council member, such vacancy shall be filled by election from the ward from which the Council member who caused the vacancy was elected. B. Notwithstanding the above, the term of all Council members elected in [November 2001] the general election following the year of the decennial, federal census (for example, in 2011 or 2021) shall be for a period of two years. In the next general election in an odd-numbered year thereafater (for example, in 2013 or 2023), [T]the terms of one-half [1/2] of the Council members elected, at that time (to fill those seats with expiring, two-year terms) [in November of 2003] shall be for a period of two [four] years, while [. T]the terms of the other half [1/2] of the Council members elected at that time, [in November 2003] shall be for a period of four [two] years. Thereafter, for the remainder of each decade (for example, 2015, 2017, and 2019), the terms of all Council members elected in those years shall [revert to] be four years. C. For elections of Common Council members to be held in in years ending in “3” (as described above) [November 2003], two Common Council members shall be elected for each ward. On the election ballot there shall be printed, for each ward, the [an] office of “member of Common Council for a term of four years” and the [an] office of “member of Common Council for a term of two years.” In all matters affecting the nomination and designation of candidates for election, it shall be designated whether the candidate is seeking the office with a term of four years or the office with a term of two years. Section 2. Severability. Severability is intended throughout and within the provisions of this local law. If any section, subsection, sentence, clause, phrase or portion of this local law is held to be invalid or unconstitutional by a court of competent jurisdiction, then that decision shall not affect the validity of the remaining portion. Section 3. Mandatory Referendum. This local law shall be submitted to a referendum at the next general election, on November 8, 2011. Section 4. Effective Date. This local law shall take effect after it is approved by the electorate at the next general election and is subsequently filed in the office of the Secretary of State. To: Mayor & Common Council From: Daniel L. Hoffman, City Attorney Date: February 15, 2011 Re: Proposed Local Law/Charter Change to Provide for 2-Year Terms for Certain Council Seats in 2011 and 2013 Elections (subject to referendum) As a result of the 2010 census, it may be necessary for Common Council to modify the boundaries of existing City wards, so that they meet legal requirements for population equivalence (and/or, Council may want to change the ward structure for other reasons). Since at least 1980, following each federal census, Council has tried to anticipate such redistricting and to avoid the confusing situation where one alderperson from a ward represents the “old” (pre-redistricting) ward, and the other represents the “new” (post- redistricting) ward. The way it has chosen to do this is to have those Council members elected in a year ending in “1” receive 2-year terms. As a result, all 10 Council seats have been up for election in the years ending in “3,” at which time half of the seats are filled for 2-year terms and half for 4-year terms. The Mayor’s working group on Charter & Code Revision considered this issue recently, and recommended using the same approach for 2011 and 2013. Last month, I learned (from Election Commissioner Steve DeWitt) that State law requires the City Clerk to inform the Board of Elections at least 8 months before an election as to what local offices will be voted on; he understands that requirement to involve the terms (i.e., 2- year or 4-year) as well as the offices themselves. In order to meet that deadline, Council would need to decide about the 2-year terms before March 8th (i.e., at your March 2nd meeting). This would be a change to the Charter (as the current language only addresses the elections following the 2000 census). It is subject to mandatory referendum (which would also occur at the November 8, 2011, election), and it must be accomplished by local law. A local law must be “laid on the desks” of Council members “in its final form,” at least 8 calendar days before being voted on (i.e., by February 22nd). Unfortunately, the timing of that requirement is such that it precedes (by a day) the City Administration Committee meeting at which the matter is scheduled for consideration and recommendation. I note that courts have allowed “non-substantive” changes to be made to local laws after they were laid on the desk. I also note that I’m not sure the 8- month deadline has always been strictly observed in the past, and yet elections have happened anyway… 10.11 Attorney’s Office - Approval of Agreement between Village of Cayuga Heights and the City for Building Inspection Services - Resolution WHEREAS, both the Village of Cayuga Heights and the City of Ithaca are required to issue permits for, and cause the inspection of alterations and construction within their jurisdictional limits; and WHEREAS, both the City and the Village enforce the provisions of the New York State Uniform Fire Prevention and Building Code and the New York State Multiple Residence Law, as well as their own zoning, site plan development review, environmental review, building, housing and fire codes, where applicable; and WHEREAS, certain improvements are located on parcels which lie partially in both jurisdictions, and are therefore subject to the code enforcement programs of each municipality; and WHEREAS, both municipalities are desirous of providing qualified building and fire inspection services in a cost-effective manner and avoiding a duplication of services and/or confusion to property owners to the extent possible; and WHEREAS, the parties are desirous of entering into an inter-municipal agreement in which the City would provide the Village with required building and fire inspection service under the New York State Uniform Fire Prevention and Building Code and the New York State Multiple Residence Law, to the extent applicable, for alterations and construction taking place on property which lies within both jurisdictions; and WHEREAS, the City has appropriate, trained and certified building and fire code enforcement personnel; now, therefore be it RESOLVED, That the Mayor is hereby authorized to enter into the attached Inter- Municipal Agreement between the City of Ithaca and the Village of Cayuga Heights for building inspection services. CITY OF ITHACA -- VILLAGE OF CAYUGA HEIGHTS INTERMUNICIPAL AGREEMENT FOR BUILDING INSPECTION SERVICES This agreement, effective 1st day of January, 2011, by and between the City of Ithaca, a municipal corporation having its office and place of business at 108 East Green Street, Ithaca, New York 14850, hereinafter referred to as the “City” and the Village of Cayuga Heights, a municipal corporation, having its office and place of business at 836 Hanshaw Road, Ithaca, New York, hereinafter referred to as the “Village.” WHEREAS, both the Village and the City are required to issue permits for, and cause the inspection of alterations and construction within their jurisdictional limits; and WHEREAS, both the City and the Village enforce the provisions of the New York State Uniform Fire Prevention and Building Code and the New York State Multiple Residence Law, as well as their own zoning, site plan development review, environmental review, building, housing and fire codes, where applicable; and WHEREAS, certain improvements are located on parcels which lie partially in both jurisdictions, and are therefore subject to the code enforcement programs of each municipality; and WHEREAS, both municipalities are desirous of providing qualified building and fire inspection services in a cost-effective manner and avoiding a duplication of services and/or confusion to property owners to the extent possible; and WHEREAS, the parties are desirous of entering into an intermunicipal agreement in which the City would provide the Village with required building and fire inspection service under the New York State Uniform Fire Prevention and Building Code and the New York State Multiple Residence Law, to the extent applicable, for alterations and construction taking place on property which lies within both jurisdictions; and WHEREAS, the City has appropriate trained and certified building and fire code enforcement personnel. NOW, THEREFORE, in consideration of the mutual covenants, agreements, and considerations heretofore set forth, the parties hereto mutually agree as follows: 1. All new property improvements where the improvement currently lies in both jurisdictions will be inspected by City Inspectors who have successfully completed the code enforcement training program through the Department of State of New York, and who are otherwise qualified as inspectors as a result of the current and previous employment by the City as code enforcement officials in the field of building and fire construction inspection. The properties listed below are those which contain one or more buildings or structures that are partially in the Village and partially in the City and intended by this agreement to be inspected by City inspectors. 115 Ridgewood Road (a Cornell Sorority) 102 Needham Place (a private residence) 105 Needham Place (a multiple residence) 126 Westbourne Place (a multiple residence) 425 Wyckoff Place (a Cornell Fraternity) 208 Dearborn Place (a Cornell Rooming House) 220 Dearborn Place (a multiple residence) 207 Kelvin Place (a multiple residence) In the event of the proposed construction of new improvements on property which lies partially in both jurisdictions, the parties may add to the above list by written agreement between the City Building Commissioner and Fire Chief and the Village Fire Chief and the Chief Code Enforcement Officer of the Village. 2. The properties covered by this agreement shall be treated for all building, housing, and fire code enforcement purposes, except zoning and site plan development review, as though they were completely within the City of Ithaca. Each jurisdiction shall continue to enforce and operate its own zoning, site plan review, environmental review and landmarks preservation programs. 3. The number of personnel assigned shall be at the discretion of the City Building Commissioner and/or City Fire Chief, depending upon the availability of said personnel to be assigned to inspect properties which lie on the line between the jurisdictions. 4. The term of this agreement shall be ten (10) years from the 1st day of January 2011 and expiring on December 31, 2020, subject to authorization by the governing legislative bodies of the respective municipalities. 5. The City shall be reimbursed for its services by the payment of all building, housing and fire inspection and permit fees directly to the City by the property owner at the rates charged to similar properties located totally within the City limits. Both jurisdictions may charge applicants for zoning, site plan review, and/or environmental review fees, where applicable. 6. Prior to the issuance of a building permit by the City, the City will obtain written confirmation from the Village Zoning Officer that the proposed plans do not violate provisions of the Zoning Ordinance of the Village or that a variance from the Village ordinance has been obtained. Properties which lie in both jurisdictions shall be subject to the zoning, site plan development and environmental review regulations and ordinances of both municipalities. 7. Both parties agree that they will, at their own expense, indemnify, defend, and hold harmless each other, its officers, agents, and employees from any and all liability, judgment costs, damages, attorneys’ fees and expenses arising out of the negligence of its employees or by not adhering to the guidelines as established by the City or the New York State Department of State in the provision and performance of inspection work as set forth in this agreement, providing, however, that timely notice shall be given by each party to the other of any claim that may be asserted with regard to the work, labor, and services set forth in this agreement. 8. Each party will certify to the other that insurance in the amount of $1,000,000 to cover liability exists and will make the other municipality the named co- insured on said policy. 9. Each party will provide its own workers’ compensation insurance covering its own employees. 10. In the event that the City or Village is, or becomes, self-insured for general liability and/or automobile liability at any time during the term of this agreement, the following language is to be incorporated in the agreement without any need for special resolution: WHEREAS, either party, its agents, servants or employees, pursuant to this agreement between the parties are or may be performing various kinds and types of work, labor or services in cooperation with each other: be it resolved that each party agrees that it will, at its own expense, indemnify, defend, and hold harmless the other, its officers, agents and employees from any liability, judgment, costs, damages, attorneys’ fees and expenses arising out of the negligent performance of the work, labor or services of the respective party, its agents, servants or employees, providing, however, that timely notice be given to the other party of any action, claim or proceedings which may be filed or commenced against the parties by reason of the performance of such work. Each party certifies, by entering into this agreement, that this section was approved by the governing body of each municipality as part of this agreement, and it is binding upon each party in the event it becomes self-insured as if a special resolution had been adopted by it. IN WITNESS WHEREOF, the parties hereto have executed this agreement the day and year first above written. THE CITY OF ITHACA _________________________________ By: Carolyn K. Peterson, Mayor THE VILLAGE OF CAYUGA HEIGHTS _________________________________ By: Kate Supron, Mayor STATE OF NEW YORK ) )ss.: COUNTY OF TOMPKINS ) On this _____ day of ____________, Two Thousand and Eleven, before me, the undersigned, a Notary Public in and for said State, personally appeared CAROLYN K. PETERSON, personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity, and that by his signature on the instrument, the individual, or the person of which the individual acted, executed the instrument. __________________________________ NOTARY PUBLIC STATE OF NEW YORK ) ) ss. COUNTY OF TOMPKINS ) On this _____ day of ___________, Two Thousand and Eleven, before me, the undersigned, a Notary Public in and for said State, personally appeared KATE SUPRON, personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity, and that by his signature on the instrument, the individual, or the person of which the individual acted, executed the instrument. __________________________________ NOTARY PUBLIC 12. NEW BUSINESS: 12.1 Viva Taqueria & Cantina Alcohol Permit Request - Resolution WHEREAS, in 1998 the City of Ithaca issued a license to the Viva Taqueria & Cantina Restaurant allowing that restaurant to utilize certain areas along Aurora Street for outdoor dining, and WHEREAS, this use of public property has been deemed proper and successful, and WHEREAS, the City of Ithaca wishes to promote diverse uses of the Primary and Secondary Commons, including outdoor dining, and WHEREAS, it is Common Council's responsibility to determine whether or not to allow the serving and consumption of alcohol on the Primary and Secondary Commons, and WHEREAS, Common Council has determined that the use of this public property for outdoor dining at the Viva Taqueria & Cantina Restaurant, including the responsible sale and consumption of alcohol, is desirable, and WHEREAS, Common Council has determined that any use of this or similar public property involving the same and consumption of alcohol should be covered by a minimum of $1,000,000 insurance under the Dram Shop Act; now, therefore be it RESOLVED, For the year 2011, Common Council hereby approves a revocable Alcoholic Beverage Permit for the outdoor sale and consumption of alcohol for the Viva Taqueria & Cantina Restaurant that includes the sale of alcohol in accord with the terms and conditions set forth in application therefore, including minimum Dram Shop coverage in the amount of $1,000,000 and the approval of an outdoor dining permit. 13. INDIVIDUAL MEMBER – FILED RESOLUTIONS: 13.1 Endorsement of and Authorization to Implement the Allocation of Costs Associated with a Lawsuit Against the City of Ithaca Regarding the Ithaca Area Wastewater Treatment Facility Site (NYSEG v. FirstEnergy Corp.; FirstEnergy Corp. v. City of Ithaca, et al) - Resolution WHEREAS, the Ithaca Area Wastewater Treatment Facility (IAWTF), a joint operation of the City of Ithaca, Town of Ithaca and Town of Dryden, occupies a site on Third Street Extension in the City of Ithaca, which site is owned by the City; and WHEREAS, the IAWTF site was previously owned by New York State Electric & Gas Corporation (NYSEG), prior to its conveyance to the City in 1959, and WHEREAS, in approximately 1927, NYSEG constructed on the site a coal gasification plant, which was operated by NYSEG until approximately 1932; and WHEREAS, a by-product of the coal gasification process was coal tar, a substance which was originally and for many years used for various commercial purposes; and WHEREAS, coal tar is now recognized as a substance that can be hazardous to human health, a fact that was not generally known in 1959 or for many years thereafter; and WHEREAS, after its acquisition of the property, the City relocated certain of its municipal sewage treatment facilities to the site; and WHEREAS, in 1981, the City and the Towns of Ithaca and Dryden entered into a Joint Sewer Agreement which committed them to joint design, construction and operation of a new, intermunicipal sewage treatment facility at the site on Third Street Extension; and WHEREAS, early in the construction of the new facility, during excavation, a substantial amount of coal tar and coal tar-contaminated soil was encountered (and then treated as advised by NYSEG and the New York State Department of Environmental Conservation), some of which contaminated soil was stored on the property until its disposal in 1996; and WHEREAS, in 1994, NYSEG entered into a Consent Order with the New York State Department of Environmental Conservation, in which NYSEG agreed to investigate and remediate coal tar contamination at 33 former coal gasification sites in New York State, including the IAWTF site; and WHEREAS, in October, 2009, the City was served with a Summons and Third-Party Complaint, joining the City as a third-party defendant in a lawsuit (New York State Electric & Gas Corporation v. FirstEnergy Corporation v. I.D. Booth, Inc., Ithaca City School District, City of Ithaca, New York, and City of Oneonta, New York) brought in the U.S. District Court for the Northern District of New York pursuant to the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), seeking apportionment of and contribution for the costs of coal tar remediation, at various sites and among all potentially responsible parties (including the City of Ithaca, by virtue of its ownership of the site in question, since 1959), and similar joinder of the Town of Ithaca and the Town of Dryden, as joint owners and operators of the plant, by FirstEnergy or NYSEG, was a possibility; and WHEREAS, the IAWTF municipal partners’ 1981 agreement (and subsequent, amended versions) provides that “in the event any liability is asserted against any of the Parties hereto arising out of the construction, operation or maintenance of the Treatment Plant, the parties shall be jointly and severally liable for the defense and payment of any such claims” and that “liability shall be apportioned among the Parties in proportion to the interests of each Party in the Treatment Plant or in accordance with such other methods as the Parties may agree;” and WHEREAS, the Parties did agree, by Agreement dated December 29, 2009, to share the costs associated with this litigation, including attorney’s fees for special counsel, as well as any award of costs or damages; and WHEREAS, following an unsuccessful summary judgment motion on behalf of the City, relying in part on the “innocent purchaser” defense, the litigation (as against the City) was settled by voluntary stipulation, with the Stipulation and Order of Dismissal filed on December 7, 2010; and WHEREAS, the settlement between the City of Ithaca and FirstEnergy was made after consultation among and with the consent of the three IAWTF partners, and “without admission of liability,” but it required the sum of $200,000 to be paid to First Energy over ten years (without interest); and WHEREAS, the City’s attorney’s fees and costs for the litigation totaled $84,249; and WHEREAS, the municipal parties’ aforementioned Cost Sharing Agreement did not explicitly provide a cost sharing formula for the specific circumstances of the settlement; and WHEREAS, representatives of the partners have met and discussed this situation, including the comparative liability risks the City may have faced at trial, under CERCLA standards, for the period of its sole ownership prior to 1981 (approximately 22 years) versus for the period of “joint ownership” (by IAWTF partners) from 1981 to the present (approximately 29 years); and WHEREAS, said representatives have recommended that the total cost ($284,249) be allocated among the parties in a manner that takes into account all of the following factors: - the City’s longer period of ownership; - an assumption that there was a liability risk associated with the City’s acquisition of the property in 1959 (as it was difficult to find witnesses who could testify to the City’s due diligence at that time), and a somewhat greater liability risk associated with the period of new plant construction and operation (when coal tar was actually encountered and handled); and - the current usage-based formula for apportioning the IAWTF’s operational costs (by which the City’s, Town of Ithaca’s and Town of Dryden’s shares are approximately 57.4%, 40.7% and 1.9%, respectively); and WHEREAS, said recommendation is for the following apportionment of the settlement amount and legal costs: City of Ithaca: $200,000 (approximately 70%); Town of Ithaca: $80,000 (approximately 28%); and Town of Dryden: $4,249 (approximately 2%); now therefore be it RESOLVED, That the Common Council hereby endorses the following allocation of the settlement amount in the FirstEnergy v. City of Ithaca lawsuit, together with the attorney’s fees and costs associated with the City’s defense therein (a total of $284,249.00): City of Ithaca: $200,000.00 Town of Ithaca: $80,000.00 Town of Dryden: $4,249.00 and be it further RESOLVED, That the Mayor, upon the advice of the City Attorney, is hereby authorized to execute any and all agreements and documents necessary to implement this allocation, and the City Controller is hereby authorized to make the necessary budget adjustments and expenditures to account for this allocation. 14. MAYOR’S APPOINTMENTS: 14.1 Reappointment to Civil Service Commission – Resolution RESOLVED, That Arlene Richardson be reappointed to the Civil Service Commission with a term to expire May 31, 2016. 14.2 Appointments to Community Police Board – Resolution RESOLVED, That Richard C. Rogers be appointed to the Community Police Board to fill a vacancy with a term to expire December 31, 2013, and be it further RESOLVED, That Shelby E. Hang be appointed to the Community Police Board to fill the youth member vacancy with a term to expire December 31, 2011.