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BOARD OF PUBLIC WORKS PROCEEDINGS
CITY OF ITHACA, NEW YORK
Special Meeting 4:45 p.m. April 2, 2008
PRESENT:
Mayor Peterson
Commissioners (4) - Jenkins, Chapman, Schlather, Wykstra
OTHERS PRESENT:
City Attorney - Hoffman
Superintendent of Public Works - Gray
Assistant Superintendent of Streets and Facilities - Ferrel
Assistant Superintendent of Water and Sewer – Whitney
Common Council Liaison – Coles
Executive Assistant - Myers
EXCUSED:
Commissioner Tripp
Deputy City Controller - Andrew
DAC Liaison – Roberts
PLEDGE OF ALLEGIANCE:
Mayor Peterson led all present in the Pledge of Allegiance to the American flag.
COMMUNICATIONS AND HEARINGS OF PERSONS BEFORE THE BOARD:
Martin Hatch addressed the Board regarding University Avenue. He stated that the Board
should carefully consider the public good if the present course of action continues.
8. Highways, Streets, and Sidewalks
8.1 Spencer Road Traffic Triangle - Resolution
By Commissioner Chapman; Seconded by Commissioner Wykstra
WHEREAS, the Spencer Road Triangle traffic diverter was installed at the intersection of
Spencer Road and the Meadow Street extension over 10 years ago as an early attempt to
reduce traffic volumes in a City of Ithaca neighborhood, and
WHEREAS, some residents in the vicinity of this traffic diverter have recently petitioned the
City to improve the appearance of this device, and
WHEREAS, members from DPW, BPW and Common Council have considered a number
of alternatives for improving both the appearance and operations of this intersection, such
as installing a mini-circle or improving the existing diverter, and
WHEREAS, some residents in the vicinity of the traffic diverter have indicated a preference
that the existing device be made permanent (curbing installed and landscaping or other
improvements appropriate to the location) rather than experimenting with other types of
intersection designs, now therefore be it
RESOLVED, That the Board of Public Works feels that the existing design of the Spencer
Road Triangle traffic diverter is appropriate in the given context and directs staff to make
the existing triangle permanent and attractive, with the understanding that this work will
proceed prior to the opening of the asphalt plants and the start up of the road work season,
barring unforeseen events.
Carried Unanimously
Board of Public Works April 2, 2008 Special Meeting Minutes Page 2
8.2 University Avenue Memorandum of Understanding – Proposed Board of Public Works
Resolution - ENDORSEMENT OF MEMORANDUM OF UNDERSTANDING BETWEEN
THE CITY OF ITHACA AND CORNELL UNIVERSITY REGARDING A PORTION OF
UNIVERSITY AVENUE
WHEREAS, New York’s General City Law, Section 20(7), grants to cities the authority “to
lay out, establish, construct, maintain, operate, alter and discontinue streets;” and
WHEREAS, the Charter of the City of Ithaca (in Section C-71) grants to the City’s Board of
Public Works the authority to “lay out, alter, discontinue, regulate, straighten, widen, pave,
curb, clean and sprinkle the streets, highways, bridges and crosswalks,” and (in Section C-
61), provides that the Board shall “have control” of the City department pertaining to
“Streets and Sidewalks” and its property, albeit “subject to the limitations herein contained
and the direction and review of the Common Council.”
WHEREAS, a certain public street or highway, known as University Avenue, is contained
within the boundaries of the City and runs, in part, through or past lands owned by Cornell
University; and
WHEREAS, representatives of the City and Cornell have been engaged in discussions from
time to time for many years without reaching a definitive conclusion about the nature and
extent of the public right-of-way over University Avenue, as well as the responsibility for
proper upkeep of the street (which is now in need of substantial reconstruction and
improvement); and
WHEREAS, as a means of resolving this situation, Cornell has offered to assume sole
responsibility for rebuilding that portion of University Avenue between the Thurston
Avenue/East Avenue/Forest Home Drive intersection and the intersection of University
Avenue with the westerly boundary line of Chi Psi Fraternity, to mutually acceptable
standards, and to keep the street open permanently, for use by the public, in exchange for
the City’s discontinuance of that portion of the street as a public street and conveyance of
its property interest therein to Cornell; and
WHEREAS, the parties acknowledge that it would be in the interest of the public health,
safety and welfare to resolve the parties’ on-going discussion about University Avenue, to
have the condition of the above-referenced portion of University Avenue improved, to have
a bicycle lane added to the upgraded portion of University Avenue where space permits,
and to facilitate the provision of certain other enhancements to the improved portion of
University Avenue; and
WHEREAS, it appears that the proposed discontinuance of a portion of University Avenue
as a City street, together with the proposed Agreement between the City and Cornell
University regarding the reconstruction of the street, its future maintenance, and the right of
the public to continue to use it, are matters that should properly require the review and
approval of both the Board of Public Works and the Common Council; now therefore be it
RESOLVED, That the Board of Public Works hereby endorses the proposed
Memorandum of Understanding between the City and Cornell, dated February 28, 2008, as
a means of bringing a specific, proposed arrangement regarding a portion of University
Avenue before the public and for consideration and timely decision-making thereon by both
the Board and the Common Council.
Prior to a motion on the resolution the Board agreed to discuss concerns regarding the
resolution, draft memorandum of understanding and draft agreement.
Commissioner Schlather had previously submitted a list of concerns which City Attorney
Hoffman wished to address with the entire Board.
Commissioner Schlather stated that he was concerned about the establishment of the Fall
Creek Recreational River boundary adjacent to University Ave. He stated that the recent
Cornell proposal to delete paragraph 7 from the MOU does not solve the problem. He
further stated that until the City knows where is the boundary, it cannot know if what is
being transferred to Cornell includes part of this protected waterway.
Board of Public Works April 2, 2008 Special Meeting Minutes Page 3
City Attorney Hoffman stated that the two matters are unrelated. He stated that first, the
Fall Creek Recreational River boundary has already been established, by act of the New
York legislature and more information has come to light since the question of its exact
location arose. He stated that the City can say with confidence that in the pertinent area,
the southerly boundary runs just to the north of the existing sidewalk on the north side of
University Avenue, it is no further south than that.
City Attorney Hoffman stated that any future decision to discontinue University Avenue as a
public right of way will not affect the protected waterway, as it will remain protected
regardless of the status of the road. He further stated that the proposed resolution does
not commit the City to discontinuance of University Avenue only to considering the
discontinuance by entering into a formal process.
Commissioner Schlather stated that the City must adopt a Recreational River Management
Plan for this area as mandated by the state enabling legislation in 1990. He stated that the
criteria for administration are set forth in Section 15-2709 of the Environmental
Conservation Law (ECL).
City Attorney Hoffman stated that the City has a duty to adopt a plan, and that adoption is
long overdue. He further stated that the consideration of discontinuing University Avenue
as a City street does not hinge on the existence of a plan since Cornell has a method for
reconstructing the road without entering the Recreational River.
Commissioner Schlather stated that the documents need to be more consistent in the quid
pro quo [in the Agreement]. He further stated that the city is transferring its rights in the
roadway by deed; Cornell is giving back a promise to allow public use, enforceable only as
a contract, and then only by way of binding, single person arbitration. He stated that
Cornell should be deeding to the city an easement that sets forth all of the public rights of
use envisioned by the final agreement.
City Attorney Hoffman stated that if the City required a deed of easement back from
Cornell, then University Avenue would remain a public street (as opposed to a Cornell
street over which the public has a contractual right to pass). He stated that where a street
for public use exists within and by way of an easement, the easement holder (i.e., the City)
is responsible for the street’s upkeep and maintenance. He stated that this would defeat
the purpose of a discontinuance in this instance: namely to have Cornell be responsible for
rebuilding and maintaining the road, at its expense and that the intention is that the public’s
right of use will be no less solid through the contractual agreement than it would be by way
of an easement.
Commissioner Schlather stated that the arbitration clause [in the draft Agreement] is fine for
operation-related and relatively minor disputes but, as consistent with item (3), either party
should be able to go to Court if there is a dispute that goes to the heart of the public's right
of use of this roadway.
City Attorney Hoffman stated that arbitration provisions avoid delay and save parties money
and that they can work equally well for big and small disputes. He further stated that a
party is always free to go to court for redress if the arbitrator disregarded the terms of the
parties’ agreement, the applicable law or the facts. He stated that the final Agreement can
specify this.
Commissioner Schlather stated that the city's reservation of rights for utilities should include
aboveground utilities.
City Attorney Hoffman stated that the City’s Superintendent of Public Works does not
foresee any need reserving for aboveground utilities in this area and that Cornell wishes to
limit aboveground utilities for aesthetic reasons. He stated that the final Agreement could
contain language to the effect that if a new technology arises which requires above-ground
installation, and it is a technology in use in an above-ground form along other Cornell
streets, the City will have the right to install it along University Avenue as well.
Board of Public Works April 2, 2008 Special Meeting Minutes Page 4
Commissioner Schlather stated that there should be provision for a bus shelter as originally
discussed and currently provided.
City Attorney Hoffman stated that the current bus shelter is owned by TCAT. He further
stated that Cornell paid TCAT for the shelter and gave it permission to install the shelter at
this location on Cornell property. Cornell has indicated that the final Agreement can specify
that this permission (for a bus shelter in this vicinity) will continue for as long as TCAT (or
its successor) wants it to.
Commissioner Schlather stated that public travel should be unrestricted and that closure for
campus events should be subject to the same restrictions as applicable to public roads in
the City.
City Attorney Hoffman stated that Cornell has agreed that public travel will be unrestricted,
except during the instances of closure as spelled out in the draft Agreement. He further
stated that Cornell administers all its roads similarly to the City, to insure that they provide
efficient, safe, and convenient transportation for all modes of travel, with as little disruption
as possible. He further stated that while public travel on City streets is generally
unrestricted, these streets also face temporary closure at certain times.
Commissioner Schlather stated that the term “traffic controls” should be clarified.
City Attorney Hoffman stated that the term “traffic controls” is not limited to speed limit type
signage. It is intended that the term cover such varied controls as speed bumps,
pedestrian crosswalks, warning signs, turn only lanes, bicycle lane striping, and blinking
caution lights and that all of this can be spelled out in the final Agreement.
Commissioner Schlather stated that there should be provision for reverter to the city if: (a)
Cornell fails to perform by a specified deadline; (b) Cornell fails to perform in the future,
notwithstanding early compliance; (c) a court determines that the agreement is void.
City Attorney Hoffman stated that contracts are usually enforced by other legal means
besides reverter and that the City would have these other means available to it, including
the remedy of specific performance. He stated that occasionally a selected provision of an
agreement may be found to be void, in which case the parties or the court rewrite the
agreement to preserve the original intention of the parties as much as possible, while
eliminating the specific language that was void. He further stated that finding an entire
agreement void and/or using reverter are considered drastic remedies that are rarely
enforced by the courts or provided for in agreements. He stated that reverter confiscates
property unfairly, without compensation for such things as capital improvements.
Commissioner Schlather stated that there should be clarification of the respective liability of
the parties with respect to the claims of third parties (e.g. arising out of motor vehicle and
other traffic accidents) and acknowledgment that claims and cross-claims pertaining to the
same are not subject to the binding arbitration clause. He further stated that this
clarification should include the typical indemnification, hold harmless language, and
insurance provisions.
City Attorney Hoffman stated that questions of respective liability would not be relevant in
the future because Cornell would be the sole owner of the road. He stated that the parties’
agreement will contain a customary transition provision where any liability for accidents
actually occurring before discontinuance will be the City’s regardless of when the claim is
filed. He stated that language could be included in the final Agreement regarding the City’s
absence of responsibility for upkeep or maintenance of University Avenue.
Commissioner Schlather stated that the width and height of the area reserved for public
use is too small. He stated that the proposal calls for a width of 33' whereas City Attorney
Hoffman's memo of November 7, 2007 refers to a current public use width of 33' to 36' plus
an additional 3'-6' for occasional snow storage on the south side.
City Attorney Hoffman stated that if University Avenue is discontinued as a public street,
Cornell will be solely responsible for snow removal. He stated that if there is not room
Board of Public Works April 2, 2008 Special Meeting Minutes Page 5
along the street for snow storage, Cornell will have to dispose of the snow elsewhere, as
both the City and Cornell do now. He further stated that where the owner of a road also
owns all the adjoining land it can use as much or as little of its own land for snow storage
as it wishes. He stated that approximately 33 feet appears to be the maximum amount of
space available for road-related purposes, between the edge of the gorge on the north, and
the edge of the existing or proposed Cornell structures or functions to the south.
Mayor Peterson stated that the drafts of the memorandum of understanding and the
agreement are presented to offer transparency though both are open to revision and should
not be viewed as being in their final form at this time. Mayor Peterson further stated that
many of these concerns are relevant to developing the final agreement but not to the
resolution at hand.
City Attorney Hoffman stated that these drafts are established minimums and the final
versions may contain much more.
Extensive discussion followed regarding the draft MOU and agreement.
The Board agreed that they would like to see a revised MOU that includes many of the
changes discussed at this meeting prior to taking a vote on the resolution.
Commissioner Schlather stated that regardless of any changes that are made to the
draft MOU or agreement he will not vote in favor of either because he believes this is a
sale of public infrastructure to a private entity and is not in the public’s best interest.
Mayor Peterson stated that the Board needs to vote on this resolution next week if they
want to make a formal recommendation to Common Council. She further stated that
Common Council will be voting on this item at their April 15, 2008 meeting.
12. Administration and Communications
Uniform Drug and Alcohol Testing Policy Amendment - Resolution
By Commissioner Schlather; Seconded by Commissioner Chapman
WHEREAS, the City of Ithaca is mandated under federal regulation to have a program of
drug and alcohol testing for employees holding commercial drivers licenses and performing
defined safety sensitive operations, and
WHEREAS, the City of Ithaca is a member of the Tompkins County Drug and Alcohol
Testing Program Consortium, consisting of the County, the Townships within the county,
and the City of Ithaca, and
WHEREAS, the City has been operating under a drug and alcohol policy statement
prepared by City staff and approved by the Board of Public Works in 1995, and
WHEREAS, the federal rules relating to drug and alcohol testing of commercial drivers
have been modified over time, and
WHEREAS, the Tompkins County drug and alcohol policy statement has been updated
with the federal regulation changes and adopted by the townships within the county, now,
therefore, be it,
RESOLVED, The City of Ithaca Department of Public Works adopts the Tompkins County
Consortium Drug and Alcohol Testing Program Policy Statement and be it, further,
RESOLVED, The City of Ithaca adds an amendment page to the County policy, Appendix
F, containing amendments to several sections of the Tompkins County Consortium Drug
and Alcohol Testing Program Policy Statement as they pertain to City employees.
Carried Unanimously
Board of Public Works April 2, 2008 Special Meeting Minutes Page 6
13. Reports
Rick Ferrel’s Report
Asst. Supt. Streets and Facilities Ferrel stated that it was going to be a busy
spring. He reported that street cleaning had already started and that tree planting
and removals had started as well. . He further reported that they are working to
correct the ADA compliance issues and will have that work completed by June
30, 2008. He reported that there has been some turnover in staff.
Commissioner Schlather requested that the Commons clock be repaired or
replaced.
Asst. Supt. Street and Facilities Ferrel stated that the clocks were very old and
finding replacement part was nearly impossible. He reported that even if money
were available to replace them it would take 3 months or more to bid the project
out and get started.
Erik Whitney’s Report
Asst. Supt. of Water and Sewer Whitney reported that he is trying to reorganize
some of the staff in his department to meet current and future needs.
Resolution to Approve Staffing Change
Commissioner Schlather; Seconded by Commissioner Wykstra
RESOLVED, That the Board of Public Works supports Asst. Supt. of Water and
Sewer Whitney’s request to create and revise position titles to meet the current
and future needs of the department.
Carried Unanimously
Superintendent and Staff
Supt. Gray reported that the engineering departments currently working on the
GIAC renovations, Commons renovations, Green Garage reconstruction, the
Water Treatment Plant EIS, and legal review of the Watershed and the repair of
the Columbia Street pedestrian bridge.
ADJOURNMENT
On a motion the meeting adjourned at 6:45 p.m.
Jessica Myers Carolyn K. Peterson
Executive Assistant Mayor