HomeMy WebLinkAboutMN-BPW-2008-08-13BOARD OF PUBLIC WORKS PROCEEDINGS
CITY OF ITHACA, NEW YORK
Regular Meeting 4:45 p.m. August 13, 2008
PRESENT:
Mayor Peterson
Commissioners (5) - Jenkins, Chapman, Schlather, Tripp, Wykstra
OTHERS PRESENT:
City Attorney - Hoffman
Deputy City Controller - Andrew
Superintendent of Public Works - Gray
Assistant Superintendent of Streets and Facilities - Ferrel
Assistant Superintendent of Water and Sewer – Whitney
Common Council Liaison – Coles
DAC Liaison – Roberts
Information Management Specialist - Myers
Traffic Systems Engineer – Logue
PLEDGE OF ALLEGIANCE:
Mayor Peterson led all present in the Pledge of Allegiance to the American flag.
APPROVAL OF MINUTES:
Approval of the Minutes of the July 2, 2008, July 9, 2008, July 16, 2008 and April
25, 2007 Board of Public Works Meetings- Resolution
By Commissioner Tripp: Seconded by Commissioner Jenkins
RESOLVED, That the minutes of the July 2, 2008 Board of Public Works meeting be
approved with noted corrections, and be it further
RESOLVED, That the minutes of the July 9, 2008 Board of Public Works meeting be
approved with noted corrections, and be it further
RESOLVED, That the minutes of the July 16, 2008 Board of Public Works meeting be
approved with noted corrections, and be it further
RESOLVED, That the minutes of the April 25, 2007 Board of Public Works meeting be
approved with noted corrections.
A Vote on the Resolution resulted as follows:
Carried Unanimously (5-0)
Commissioner Schlather absent from vote
COMMUNICATIONS AND HEARINGS OF PERSONS BEFORE THE BOARD:
Holly Hollingsworth, Town of Brooktondale, addressed the Board on behalf of the local
Veterans. He explained that the Veteran’s group is working to restore DeWitt Park and
the monuments in the hope of enhancing the level of respect they deserve in the
memorial courtyard setting. He further stated that he is in support of obtaining permits
to use DeWitt Park for the special events they conduct on Memorial Day, Flag Day and
Veteran’s Day, the rededication of the Park, and when names are added to the
monuments. He thanked the Board and DPW staff for their support of the Veterans and
their efforts at the park.
UPDATE ON GIAC BASKETBALL COURT RELOCATION TO CONWAY PARK:
GIAC Director Marcia Fort and Alderperson Clairborne addressed the Board to update
them on the recent neighborhood informational meeting that was held to explain the
proposal to relocate the basketball court from GIAC to Conway Park during NYSEG’s
coal tar removal project. They reported that Superintendent of Public Works Gray, Asst.
Supt. of Streets & Facilities Ferrel, Acting Director of Planning and Development
Cornish, City Forester Hillman, Ithaca Housing Authority Director Brenda Westfall,
Alderpersons Tomlan, Rosario, and Clairborne, as well as Board of Public Works
Commissioner Ron Chapman also attended the meeting.
Board of Public Works – August 13, 2008- Page 2
They reported that the meeting went well and that the majority of residents expressed
concern about noise that would be generated by users of the basketball court based
upon concerns they have with existing activities at the park. Other concerns included
encroachment on green space, fences, and plans for the use of the courts.
Suggestions were made about how to make the fence surrounding the court as
attractive as possible and there was interest expressed in keeping the existing half court
available for younger children to use while the full court is occupied by older youths.
Residents voiced disappointment in the lack of public input at the beginning of the
process as well.
GIAC Director Fort stated that she would be following up with Acting Police Chief Vallely
regarding concerns that were raised about noise and to set up a follow-up meeting for
residents to meet with the leaders of the Ithaca Police Department to share their
concerns.
She further explained that staff would be meeting again to move forward with design
plans that include lighting, landscaping, and fencing so that cost estimates could be
determined and provided to NYSEG.
Mayor Peterson noted that the Board of Public Works needs to vote on this item and a
timeline needs to be established by staff. She requested that GIAC Director Fort and
Alderperson Clairborne provide written notes from the meeting so that the Board has a
record of the concerns raised by the residents at the meeting.
Commissioner Chapman stated that there was also a petition being circulated during
the meeting in opposition to the relocation of the basketball court to Conway Park.
Superintendent Gray noted that GIAC Director Fort did a great job facilitating the
meeting and noted that he found it very informative and productive.
HIGHWAYS, STREETS, AND SIDEWALKS:
Recommendation to Create a Capital Project to Extend Sidewalk in the 700 Block
of Hudson Street and Intent to Assess a Portion of the Cost through the Uniform
Sidewalk Improvement Program - Resolution
By Commissioner Tripp: Seconded by Commissioner Chapman
WHEREAS, as part of the review and approvals process for the Ithaca College Athletics
and Events Center and related multi-use trail, Engineering staff proposed that sidewalk
in the 700 block of Hudson Street be extended to complete a pedestrian route between
the City’s South Hill neighborhood sidewalk system and Ithaca College, and
WHEREAS, Ithaca College has verbally expressed a willingness to participate
financially in the design and construction of such sidewalk, and
WHEREAS, the Board of Public Works is conceptually in favor of such a project, and
WHEREAS, the cost of this project can also be partially apportioned to abutting property
owners under the Uniform Sidewalk Improvement policy in accordance with the City
Charter, now therefore be it
RESOLVED, That the Board of Public Works recommends to Common Council that a
capital project for Sidewalk Improvements in the 700 Block of Hudson Street be
established in the amount of $10,000 in order to begin design and to prepare cost
estimates, and be it further
RESOLVED, That should Common Council establish a capital project, the Board of
Public Works authorizes Engineering staff to prepare design and cost estimates for the
project, which would be evaluated by the Board before further progress on the project.
Traffic Systems Engineer Logue explained that the City would like to coordinate this
project with Ithaca College’s proposed multi-use trail that would connect Ithaca College
to the City of Ithaca. Ithaca College has expressed interest in partnering with the City
financially to construct a 200’ section of new sidewalk that would connect the City of
Ithaca to Ithaca College. He stated that staff wanted to approach the Board before
moving forward with this application to gauge their interest and support for the project.
He explained that the project would include the installation of 250’ linear feet of sidewalk
Board of Public Works – August 13, 2008- Page 3
that would connect to the existing sidewalk and may require drainage improvements,
curbs, and possible encroachment agreements.
Discussion followed on the floor regarding the City’s cost for the project, the need to
prioritize sidewalk work in the City, and the need to obtain more information from Ithaca
College about their commitment of financial support for the project.
The Board expressed support for the project as Ithaca College has offered to participate
financially with the City to construct the sidewalk.
Superintendent Gray stated that the total project cost could be as much as $100,000
because of drainage issues, the uneven terrain, and curbing issues. He further stated
that possibly a quarter of that amount might be assessable to adjacent property owners.
He stated that he had hoped that this project would be included in the County’s project
on Coddington Road, but that was not the case.
Traffic Systems Engineer Logue noted that the $10,000 being requested would enable
staff to obtain cost estimates, surveys, and preliminary engineering work to at least
develop plans that would be ready in the future if the City is not able to proceed with the
project now.
Mayor Peterson stated that she would not vote in support of this request because other
capital project requests take precedent over this one.
A vote on the Resolution resulted as follows:
Ayes (4) Chapman, Tripp, Wykstra, Jenkins
Nays (1) Peterson
Abstentions (0)
Carried (4-1)
Commissioner Schlather absent from vote
PARKING AND TRAFFIC:
Award of Bid for Seneca Street Garage – Beam Pocket Inspection - Resolution
By Commissioner Chapman: Seconded by Commissioner Tripp
WHEREAS, bids were received on August 12, 2008 for Seneca Street Garage – Beam
Pocket Inspection, Capital Project (CP 372), and
WHEREAS, staff has reviewed the bids received and recommends award, now
therefore be it
RESOLVED, That the City of Ithaca Board of Public Works hereby awards the Seneca
Street Garage – Beam Pocket Inspection Project to WJE Engineers & Architects, 1350
Broadway, New York, NY, for their low bid meeting specifications of $44,480.00.
Carried Unanimously (5-0)
Commissioner Schlather absent from vote
CREEKS, BRIDGES AND PARKS
Stewart Park Fee Waiver for Annual Employee Recognition Program – Resolution
By Commissioner Tripp: Seconded by Commissioner Wykstra
WHEREAS, the Board of Public Works has received a request from the City’s Picnic
Committee to waive the pavilion fee at Stewart Park for the City of Ithaca Employee
Recognition Picnic on Friday, September 19, 2008, now therefore, be it
RESOLVED, That the Board of Public Works approves waiving the fee for the use of
the large pavilion at Stewart Park for the City of Ithaca Employee Recognition Picnic on
September 19, 2008 with September 26, 2008 as a rain date.
Carried Unanimously (5-0)
Commissioner Schlather absent from vote
WATER AND SEWER
Award of Bid for the Annual Chemical Requirements – Resolution
By Commissioner Tripp: Seconded by Commissioner Wykstra
WHEREAS, staff received bids for the 2008-2009 Chemical Requirements on July 29,
2008, and
Board of Public Works – August 13, 2008- Page 4
WHEREAS, staff has reviewed the bids and made recommendations for award of bid;
now, therefore, be it
RESOLVED, That the Board of Public Works hereby accepts staff’s recommendation to
award the 2008-2009 Annual Chemical Requirements as follows:
Chemical Vendor Price (per unit & extended)
Primary Coagulant, per gallon Applied Specialties $2.830/gal- $113,200
Filter Aid, per pound Zinkan Enterprises $3.840/lb - $7,680
Coagulant Aid, per gallon SNF Polydyne $7.885/gal- $23,655
Potassium Permanganate, /pound Amrex Chemical, Co. $2.350/lb - $12,925
Ferrous Chloride, per lb/gallon Kemira Water Solutions $0.650/gal-$91,000
Ferric Chloride, per gallon Kemira Water Solutions $1.310/gal-$170,300
Gas Sulfur Dioxide, per pound Amrex Chemical, Co. $0.780/lb - $20,280
Sodium Hypochlorite, /gallon Bison Laboratories, Inc. $0.820/gal-$111,725
and, be it further
RESOLVED, That the Board hereby authorizes the Assistant Superintendent for Water
and Sewer to enter into agreements for the bid awards.
Carried Unanimously (5-0)
Commissioner Schlather absent from vote
Award of Bid for “Miscellaneous Plant Improvements - IWWTP” Project -
Resolution
By Commissioner Wykstra: Seconded by Commissioner Tripp
WHEREAS, bids were received on August 8, 2008 for the Miscellaneous Plant
Improvements Project (CP-416J), and
WHEREAS, the bid package consisted of a base bid and two alternate items to be
awarded at the discretion of the SJC and City of Ithaca BPW, and
WHEREAS, our consultant Stearns & Wheler and our staff have reviewed the three bids
received and made recommendations for award of the base bid plus Alternate #7 which
provides for the brick facing removed from the digesters to be hauled to an approved
site for processing and reuse, and
WHEREAS, award of the project with the recommended alternate item will be
$544,040.00 lower than our consultants estimate and the previously approved budgeted
amount of $1,504,950.00 for this capital project, now therefore be it
RESOLVED, That the Board of Public Works hereby awards the base bid plus Alternate
Item #7 to M. Hubbard Construction Inc. of Mottville, New York for a total contract
amount of $960,910.00, and be it further
RESOLVED, That staff will make reasonable efforts to explore with the contractor the
recycling of the brick by the most efficient and economical means.
Carried Unanimously (5-0)
Commissioner Schlather absent from vote
Commissioner Schlather arrived at 6:00 p.m. having been excused for the 1st hour of
the mtg.
HIGHWAYS, STREETS, AND SIDEWALKS
Conditional Discontinuance of a Portion of University Avenue as a City Street –
Resolution
By Commissioner Tripp: Seconded by Commissioner Chapman
WHEREAS, the nature and extent of the public’s rights in the portion of University
Avenue that passes through the campus of Cornell University (consisting of
approximately 1,100 linear feet of roadway), and the responsibility for maintenance and
repair of that portion of the street, have been in dispute between the City of Ithaca and
Cornell, for at least 25 years; and
Board of Public Works – August 13, 2008- Page 5
WHEREAS, as a result of this dispute, and the absence of regular upkeep of the street,
this portion of University Avenue is in need of significant repair, including stabilization
and reconstruction of the underlying roadbed, the cost of which is estimated to exceed
$2,000,000.00; and
WHEREAS, over the past two years, representatives of the City (including the Mayor,
City Attorney, Superintendent of Public Works, Fire and Police Departments, and
members of Common Council and the Board of Public Works) and of Cornell University
have engaged in extended discussions and negotiations intended to identify a means of
resolving the disputes and confusion about University Avenue; and
WHEREAS, in 2007, the City Attorney, upon investigation of the matter and a review of
available evidence (including evidence discovered by Cornell that the presumed origin
of University Avenue as a State-authorized turnpike that would have reverted to public
ownership following its private operation was apparently in error), opined that Cornell
holds the underlying title to the land upon which University Avenue is located, and that
the existing rights of the public (and, by extension, the City of Ithaca) in the road consist
solely of an unwritten “easement by user,” the boundaries of which easement corridor
(including its height) are defined by the actual, historical, public use of the roadway (i.e.,
the travel lanes, sidewalk, and public utilities); and
WHEREAS, Cornell University concurs with the City Attorney’s opinion in this matter
and has offered to assume sole responsibility for the maintenance of the subject portion
of University Avenue (between its intersection with East Avenue/Thurston Avenue and
its intersection with the easterly boundary of the Chi Psi fraternity), to reconstruct that
portion of the street to agreed-upon specifications, by December 2013, and to keep the
street generally open (with certain, limited exceptions), in perpetuity, for generally
unrestricted use by the public as a two-way street (with a new, uphill bicycle lane and a
sidewalk on the north side), in exchange for the City’s official discontinuance of that
portion of University Avenue as a City street and its conveyance (by quit claim deed) of
any remaining City property rights in the street, to Cornell; and
WHEREAS, the City and Cornell have committed themselves to exploring this proposed
arrangement, by negotiating, approving and executing a Memorandum of
Understanding (dated May 21, 2008) intended to bring the issue of discontinuance (in
conjunction with a proposed, legally binding contractual agreement between the City
and Cornell) to a timely vote by the Board of Public Works and Common Council; and
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;” and
WHEREAS, to the extent that the Planning and Development Board of the City is
required to have an opportunity to comment upon the proposed discontinuance of a City
street, such opportunity was provided in this case, and such comments (approved on
June 24, 2008) were received, containing suggestions that have been incorporated into
the proposed City/Cornell contractual agreement; and
WHEREAS, the City Charter requires that a public hearing be conducted before a street
is discontinued, and the City has conducted both a public information session (on June
17th) and a duly-advertised public hearing (on June 23rd), at the latter of which no
comments were made by members of the public; and
WHEREAS, environmental review of the proposed discontinuance (conditioned upon
the execution of a contractual agreement between the City and Cornell, as to continued
public use of the street) has been completed, by Common Council acting as lead
agency, with a negative declaration of environmental significance (approved on August
6, 2008); now therefore be it
Board of Public Works – August 13, 2008- Page 6
RESOLVED, That the Board hereby determines that the proposed arrangement
described above will resolve decades of dispute and confusion as to who is responsible
for maintaining the subject portion of University Avenue and (more recently) as to what
the parameters of the public travel corridor are; and be it further
RESOLVED, That the Board further determines that, under the essential terms of the
proposed Contractual Agreement (as described below), the interests of the public in
having University Avenue maintained as a permanent transportation corridor generally
open for public use - by motor vehicles, bicycles and pedestrians, and, potentially, fixed-
rail transit - will be reasonably protected, notwithstanding the discontinuance of the
subject portion of University Avenue as a City street; it being anticipated that from the
public’s vantage point, use of the street after such discontinuation will be
indistinguishable from the current public usage (except that it will include a bicycle lane
and will be kept in better repair); and be it further
RESOLVED, That the Board further determines that the proposed discontinuance will
result in substantial, monetary savings to the taxpayers of the City of Ithaca, and a
lessened workload for the Department of Public Works, as a result of the avoided cost
of urgently needed reconstruction of the road, as well as of its continued repair and
maintenance; and be it further
RESOLVED, That, pursuant to the authority granted to cities, under Section 20(7) of the
General City Law, and as delegated to the Board of Public Works by the City of Ithaca,
in Section C-71 of the Charter of the City of Ithaca, the Board hereby discontinues as a
City street the portion of University Avenue between its intersection with East Avenue
and Thurston Avenue (i.e., at the westerly side of said intersection) and the point where
the street intersects with the easterly property line of the Chi Psi fraternity (Tax Map
Parcel No. 29-3-3), but only upon the condition that this discontinuance shall not take
effect until and unless a legally-binding contract between the City and Cornell University
- including (but not necessarily limited to) the substance of the terms described below –
has been approved by Common Council and executed by duly authorized
representatives of the University and the City, within 90 days of the Board’s action
herein, and is certified by the Mayor as being in compliance with this condition:
TERMS TO BE INCLUDED IN CITY/CORNELL CONTRACT:
1. Promise by Cornell to keep the discontinued portion of University Avenue
generally open (except as described below), in perpetuity, for generally
unrestricted vehicular and pedestrian travel purposes, and to allow the public to
use it for that purpose.
EXCEPTIONS – Temporary closure by Cornell to be allowed:
a. In the event of emergency or other, short-term exigency;
b. As required for adjacent construction, street repairs or reconstruction; or
c. For special campus events (maximum of 4 days per calendar year).
2. Retention by City of permanent right-of-way for existing, underground City
utilities, with City right to maintain, repair, upgrade or replace the same, or to add
new underground public utilities in the future, as well as for above-ground City
utilities that involve a future, new technology then in use in an above-ground form
along other Cornell-owned streets, with same right to maintain, repair, upgrade
and replace.
3. Promise by Cornell to reconstruct the discontinued portion of University
Avenue, as two-way street and to specific parameters (see below), by December
1, 2013, at Cornell’s sole cost, with provision for Cornell to request an extension
for unforeseen circumstances beyond Cornell’s control (not including Cornell’s
failure to proceed with currently planned, adjacent construction projects).
MINIMUM PARAMETERS:
a. 2 lanes for motorized vehicular travel, each at least 10 feet wide,
with combined total (minimum) width of 22 feet.
b. Uphill bicycle lane at least 5 feet wide.
c. Curbs on both sides of travel lanes.
d. Sidewalk at least 6 feet wide on north side of street.
e. Unimpeded height of at least 15 feet for travel corridor.
Board of Public Works – August 13, 2008- Page 7
f. Street lighting similar to other street lighting along streets on
Cornell campus, including appropriate lighting for any part of street located
beneath a building.
g. Associated bus shelter to be maintained in vicinity by Tompkins
Area Consolidated Transit (TCAT) as long as TCAT (or its successor)
wishes.
h. Curb lawn and snow storage area, where feasible.
4. Promise by Cornell to provide, at its sole cost and in a timely manner, any
temporary street repairs or maintenance required after discontinuance but prior
to the commencement of street reconstruction.
5. Promise by Cornell to comply with all applicable legal requirements, as to
design and implementation of the reconstruction, including design requirements
of Americans with Disabilities Act, re: curb cuts, curb ramps, crosswalks and
sidewalks.
6. Promise by Cornell that it will maintain subject portion of street, and
associated sidewalk, curbs and lighting, to standards at least as high as those for
other, typical Cornell-owned streets and sidewalks on campus.
7. Acknowledgement that Agreement does not preclude City from requesting
(or Cornell from implementing, on its own or in cooperation with City) installation
of trolley tracks or other infrastructure for fixed-rail transport, within minimum
dimensions of parameters of public travel corridor, provided it does not prevent
use of street by private, motorized vehicles, bicycles and pedestrians, with the
understanding that responsibility for cost of and assumption of liability for the
same would need to be determined by parties at a future date. Promise by
Cornell to consider any such City request on its merits and in good faith.
8. Promise by Cornell to retain “University Avenue” as name of discontinued
street.
9. Promise by Cornell to take reasonable steps to minimize duration of any
complete closure, to arrange for emergency vehicle access during such closure,
to coordinate with Ithaca Fire Department to arrange for a mutually agreed-upon,
reasonable detour, and to ensure that East Avenue (at least between Tower
Road and Thurston Avenue bridge) remains open as part of a two-way detour,
for public use, during any non-emergency closure lasting more than a week.
10. Promise by Cornell that it will not install or maintain access-control gates
or other such barriers upon the discontinued street, and that any in-street devices
intended to slow traffic are compatible with the safe passage of long-wheel-base
vehicles.
11. A dispute resolution mechanism (including binding arbitration, if
necessary) intended to avoid, minimize or remedy misunderstandings or failures
of communication regarding compliance with Agreement, with provision for either
party to waive that mechanism (and seek judicial relief) in the event of a
disagreement concerning an essential term or condition of the Agreement.
12. Mutual indemnification and hold-harmless provision:
a. City to indemnify and hold Cornell harmless, including reasonable
defense costs, as to any claims arising prior to discontinuance, except that
Cornell remains liable for any negligence in maintaining the sidewalk
associated with University Avenue.
b. Cornell to indemnify and hold the City harmless, including
reasonable defense costs, as to any claims arising after discontinuance,
except that City remains liable for any negligence in maintaining its utilities
beneath or above the street; and
13. Agreement to be binding upon parties and their successors.
14. Reversion, to the City (or successor municipality), of all City rights in
University Avenue conveyed pursuant to this Agreement, if Cornell (or a
Board of Public Works – August 13, 2008- Page 8
successor institution of higher learning) ceases to exist at its present campus in
the City.
and be it further
RESOLVED, That the Mayor be and hereby is authorized to determine and certify
whether the conditions of discontinuance, as described above, have been fulfilled, which
determination shall be timely reported by the Mayor, in writing, to the Board of Public
Works and the Common Council, with copies provided to Cornell University and to the
City Clerk, for filing.
City Attorney Hoffman explained that all the changes made since the working group’s
meeting on Thursday were underlined and that most were suggested by Commissioner
Schlather. The amended language is more favorable to the City than the previous
version. He stated that the changes reflect the essential terms that the Board would like
included in the agreement with Cornell University.
Commissioner Schlather stated that he has proposed changes to the resolution and
asked how they could be made.
Mayor Peterson stated that she would like the resolution moved as it was presented to
the Board and then Commissioner Schlather could propose his amendments.
Commissioner Schlather stated that he has not deviated from his prior position. He
believes this initiative is a mistake that creates a precedent with respect to sale of public
assets and infrastructure. He argued that this is not a good deal from the City’s
standpoint as even if the City were to convey to Cornell University for all the reasons
argued, the City has only reserved for itself an inadequate right of way that is basically a
tunnel with special uses. He noted that the record is clear why he believes this and has
argued against this proposal. He requested that the Board go through the resolution to
the 2nd whereas clause and strip some of the language that states the City has been
derelict in its upkeep of the street.
Discussion followed on the floor regarding the historical maintenance of the street.
Asst Supt. of Streets & Facilities Ferrel explained that this section of road has been
under discussion for years and his predecessors told him that the City of Ithaca’s
responsibility for upkeep of the road ended just before the Johnson Art Museum. He
further stated that the City has no records to indicate that work has been done on that
upper section of the road.
City Attorney Hoffman explained that whereas clauses describe how the resolved
clauses came about. He believes that these statements are factually accurate but they
are not necessary to the resolution.
Amending Resolution:
By Commissioner Schlather: Seconded by Commissioner Tripp
RESOLVED, That the Second Whereas clause be amended to read as follows:
“WHEREAS, this portion of University Avenue is in need of repair, including stabilization
and reconstruction of the underlying roadbed, the cost of which is estimated to exceed
$2,000,000.00; and”
Ayes (5) Schlather, Tripp, Wykstra, Jenkins, Peterson
Nays (1) Chapman
Abstentions (0)
Carried (5-1)
Amending Resolution:
By Commissioner Schlather: Seconded by Commissioner Tripp
RESOLVED, That the 5th Whereas Clause be amended to read as follows:
“WHEREAS, Cornell University concurs with the City Attorney’s opinion in this matter
and has offered to assume sole responsibility for the maintenance of the subject portion
of University Avenue (between its intersection with East Avenue/Thurston Avenue and
its intersection with the easterly boundary of the Chi Psi fraternity), to reconstruct that
portion of the street to agreed-upon specifications, by December 2013, and to keep the
street generally open (with certain, limited exceptions), in perpetuity, for generally
unrestricted use by the public as a two-way street (with a new, uphill bicycle lane and a
Board of Public Works – August 13, 2008- Page 9
sidewalk on the north side), in exchange for the City’s official discontinuance of that
portion of University Avenue as a City street and its conveyance (by quit claim deed) of
any remaining City property rights in the street, to Cornell subject to a right of reverter
and the City’s retention of easement for the City’s utilities associated with the street;
and”
Carried Unanimously
Amending Resolution:
By Commissioner Schlather: Seconded by Commissioner Wykstra
RESOLVED, That the 8th Whereas clause be amended to read as follows:
“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, and”
City Attorney Hoffman stated that this Whereas clause is important as it states what
control the Board has as well as its limitations as per the City Charter. He felt it was
important to acknowledge both the authority of the Board and its limitations as well.
Commissioner Schlather stated that by taking out this language he is saying to his
colleagues on the Board that they own this decision and that they are not being pushed
into it by Common Council. He further stated that this Board voted by majority to make
this decision and he respects all his colleagues. He doesn’t read the limitations of this
Board as broadly as others and questioned why they need to institutionalize that
particular broad view.
Commissioner Wykstra stated that if the language were not necessary, he would like to
leave that language out as well and supports Commissioner Schlather’s suggestion.
Alderperson Coles stated that this language was taken directly from the City Charter
and questioned why it would continue the tension between the Board and Common
Council since it outlines the limitations of the Board.
A Vote on the Amending Resolution resulted as follows:
Ayes (4) Schlather, Wykstra, Jenkins, Chapman
Nays (2) Peterson, Tripp
Abstentions (0)
Carried (4-2)
Amending Resolution:
By Commissioner Schlather: Seconded by Commissioner Tripp
RESOLVED, That term number five (5) be amended to read as follows:
“5. Promise by Cornell to comply with all applicable legal requirements as to design
and implementation of the reconstruction, including design requirements of Americans
with Disabilities Act.”
Carried Unanimously
Amending Resolution:
By Commissioner Schlather: Seconded by Commissioner Tripp
RESOLVED, That term number seven (7) be amended to read as follows:
“7. Acknowledgement that Agreement does not preclude the City from requiring (or
Cornell from implementing, on its own or in cooperation with City) installation of trolley
tracks or other infrastructure for fixed-rail transport, within minimum dimensions of
parameters of public travel corridor, provided it does not prevent use of street by
private, motorized vehicles, bicycles and pedestrians, with the understanding that
responsibility for cost of and assumption of liability or indemnification for the same
would need to be determined by parties at a future date.
Commissioner Schlather stated that his concern is that the Planning Board says it might
want a light rail system and this is exactly what he has been talking about regarding
future uses. If the City wants a rail system there it should be able to have it and not be
required to ask Cornell University or required to pay for it through eminent domain. He
noted that the underlying cost would be subject to discussion as well as liability
Board of Public Works – August 13, 2008- Page 10
requirements and that this request is a legitimate requirement that the City should have
in place.
Mayor Peterson stated that she had spoken with Cornell Counsel Shirley Egan about
this and that if that became a means for public transport that Cornell University has
been a demonstrated leader in the community for promoting public transportation
opportunities.
Cornell Counsel Egan stated that a trolley line was never part of the public right-of-way.
She further stated that Cornell University agrees to continue to allow existing public use
of the road. She explained that when the trolley did go through the City it was owned by
a private entity and there is probability that this could be privately owned in the future
and Cornell University wants the ability to negotiate as a fixed rail system is limited to
certain areas. She noted that the language in the current draft indicates that if
circumstances change, Cornell University would like the opportunity to discuss and
negotiate since it would affect its workers, students, and classes. She stated that it
seemed unnecessary to reach that far into the future. If something were in Cornell
University’s best interest, it would lead the charge.
Commissioner Schlather argued that if the City determines that there should be a light
rail system through that location, it should be able to do so. That is a City decision and
he wants to protect future use of the corridor.
Mayor Peterson stated that the City has not determined that this would be a light rail
location and she does not agree with the proposed amendment and would not support
it. She further stated that as pointed out by Cornell Counsel Shirley Egan if the City
discontinues the street, it loses its ability to require things and would need to negotiate.
Commissioner Tripp noted that the working group had a long discussion regarding a
light rail/trolley system which might not in actuality become a future use and that
requesting something be done is meaningless.
Superintendent Gray stated that if a trolley system were proposed it only has a certain
amount of friction to allow it to climb whichever way. He further stated that the Board is
struggling with an issue of something that probably would not be located here.
A Vote on the Amending Resolution resulted as follows:
Ayes (3) Schlather, Jenkins, Wykstra
Nays (3) Peterson, Tripp, Chapman
Abstentions (0)
Failed
Amending Resolution:
By Commissioner Schlather: Seconded by Commissioner Tripp
RESOLVED, That term number fourteen (14) be amended to read as follows:
“14. Reversion, to the City (or successor municipality), of all City rights in University
Avenue conveyed pursuant to this Agreement without cost to the City, if Cornell (or a
successor institution of higher learning) ceases to exist at its present campus in the
City.”
Carried Unanimously
Amending Resolution:
By Commissioner Schlather: Seconded by Commissioner Wykstra
RESOLVED, That term number twelve (12) subsection “b” be amended to add a
subsection “b (ii)” that would read as follows:
“(ii) Cornell to indemnify and hold City harmless for any action taken by City or brought
against the City arising out of the negotiation and execution of this agreement, the
transfer and performance thereunder, and the environmental review or lack thereof
conducted in connection therewith.”
Commissioner Schlather stated that at the last meeting there were concerns about
indemnification cost to the City if it were sued for anything arising out of this
conveyance; however that has not been accepted by the working group. He further
stated that his argument and biggest concern is what he perceives as inadequate
environmental review, and what he respectfully suggests is that the Board allowed
Board of Public Works – August 13, 2008- Page 11
Common Council to rush the environmental review on behalf of Cornell University and if
the City were to be challenged, Cornell University should pay for it.
Mayor Peterson responded that the person who conducted the environmental review
was not rushed and the implication that staff was forced by Common Council to do this
review quickly is not accurate.
Commissioner Wykstra questioned who is more likely to be sued by this action and
where the perceived threat comes from.
City Attorney Hoffman responded that nothing was improper for the lead agency to
conclude environmental review after its initial review. He explained the triggers that
would require environmental review and this action does not include physical changes
to the environment. He believes the City would be able to mount a reasonable defense
to any challenge.
Commissioner Tripp stated that this issue was discussed at the working group meeting
and this only makes sense if the City (Common Council and the Board of Public Works)
have been coerced by Cornell University and that’s an idea she rejects. She further
stated that both parties are entering this agreement fully aware of the issues. She
stated that this agreement resolves a long-standing dispute and she would not support
the proposed amendment.
Commissioner Schlather stated that it was not his intent to insult Common Council, he
was suggesting that the costs of possible future legal fees be allocated to Cornell if the
environmental review is challenged. He feels it is the Board’s responsibility to protect
the City in the event there is such a lawsuit.
A Vote on the Amending resolution resulted as follows:
Ayes (1) Schlather
Nays (4) Peterson, Jenkins, Chapman, Tripp
Abstentions (1) Wykstra
Failed
Mayor Peterson stated that this issue has been discussed for a long time. The working
group and Commissioner Schlather have worked hard to protect the City and strengthen
its position.
Main Motion As Amended:
A Vote on the Main Motion as Amended resulted as follows:
Ayes (4) Peterson, Tripp, Wykstra, Chapman
Nays (2) Schlather, Jenkins
Abstentions (0)
Carried
Revised DRAFT (for the purpose of discussion)
8/8/08
Board of Public Works – August 13, 2008- Page 12
NOTE: Italicized provisions are as tentatively proposed or agreed to by Cornell as of
8/8/2008 but are all contingent upon the final draft being acceptable to Cornell as a
whole.
Exhibits B, C and D do not yet exist. The Map entitled “Proposed Discontinuance of
University Avenue” dated June 11, 2008 is proposed by Cornell as Exhibit B.
CONTRACTUAL AGREEMENT
BETWEEN CORNELL UNIVERSITY AND CITY OF ITHACA
CONCERNING A PORTION OF UNIVERSITY AVENUE
THIS AGREEMENT, made this ____ day of ______________, 2008, by and
between the City of Ithaca, a New York municipal corporation, with offices at City Hall,
108 East Green Street, Ithaca, New York, 14850 (hereinafter the “City”) and Cornell
University, a New York education corporation, with offices at 317 Day Hall, East
Avenue, Cornell University, Ithaca, New York, 14853 (hereinafter “Cornell”),
WITNESSETH THAT:
WHEREAS, the parties entered into a certain Memorandum of Understanding
Between the City of Ithaca and Cornell University Regarding A Portion of University
Avenue (hereinafter the “MOU”) on May 21, 2008, a copy of which is attached hereto at
Exhibit A for reference; and
WHEREAS, as more fully set forth in the MOU, for many years the parties have
discussed the legal status and physical condition of a certain portion of University
Avenue in the City of Ithaca (which portion is located between the intersection of
University Avenue with Thurston Avenue/East Avenue/Forest Home Drive and its
intersection with the easterly boundary of the property of the Chi Psi fraternity, and
which is more fully shown or described in the map attached as Exhibit B hereto) that
runs through the campus and property of Cornell (hereinafter the “Portion” or “Portion of
University Avenue”), culminating with an offer by Cornell to assume sole responsibility
for its rebuilding and on-going maintenance and to keep it open permanently to
members of the public for purposes of travel, in exchange for the City’s discontinuance
of the Portion as a City street and conveyance of the City’s remaining property interest
therein, if any, to Cornell; and
WHEREAS, the Common Council, acting as Lead Agency, has complied with the
requirements of the City’s Environmental Quality Review Ordinance (section 176-1, et
seq.) and the New York State Environmental Quality Review Act and regulations, with
respect to the afore-mentioned proposed discontinuance and conveyance, and
execution of this Agreement; and
WHEREAS, pursuant to the authority granted by the Charter of the City of Ithaca
(in Section C-71) to “lay out, alter, discontinue, regulate, straighten, widen, pave, curb,
clean and sprinkle the streets, highways, bridges and crosswalks,” which is consistent
with the authority granted to cities “to lay out, establish, construct, maintain, operate,
alter and discontinue streets,” as set forth in New York’s General City Law, Section
20(7), the City’s Board of Public Works (“BPW”), following a duly-noticed public hearing
(conducted on June 23, 2008) and solicitation of comment from the City’s Planning and
Development Board, did on August ___, 2008, by Resolution entitled, “Conditional
Discontinuance of a Portion of University Avenue as a City Street” (a copy of which
resolution, as certified by the City Clerk, is attached hereto as Exhibit C for reference),
vote to discontinue the Portion of University Avenue as a City street; and
WHEREAS, the Common Council of the City did on September ___, 2008, by
Resolution entitled, “Assent to the Conditional Discontinuation of a Portion of University
Avenue as a City Street, Approval of the Conveyance of Any City Property Rights
Therein to Cornell University and Approval of a Proposed Contractual Agreement
Between the City and Cornell University” (a copy of which resolution, as certified by the
City Clerk, is attached hereto at Exhibit D for reference), signify its review of and assent
to the said resolution by the BPW to discontinue the Portion of University Avenue, and
authorized the Mayor to execute a quit claim or other deed to Cornell, of the City’s
property rights remaining after discontinuance (reserving nonetheless a right-of-way for
present and possible future, City-owned utilities, as described below), and to enter into
this Contractual Agreement on behalf of the City; and
Board of Public Works – August 13, 2008- Page 13
WHEREAS, the parties acknowledge and agree that it is in the interest of the
public health, safety and welfare to have the Portion of University Avenue reconstructed
and repaired together with the addition of certain amenities hereinafter described, to
have it maintained henceforth at private expense, to have it continue as an important
link in the community’s transportation network in much the same way that many other
private roads on the Cornell campus add links to the network, but even more so as
provided by this agreement, and to secure for members of the public the permanent
ability generally to use it for unrestricted travel purposes;
NOW, THEREFORE, in consideration of the mutual promises set forth herein,
the parties hereby agree as follows:
1. The City agrees to convey to Cornell all of the City’s property interests, of
whatever nature and type, in and to the discontinued Portion of University Avenue, by
quit claim or other deed, nonetheless reserving to the City, in writing, (a) a permanent
right-of-way for all the City’s existing underground utilities associated therewith, together
with the right to maintain, repair, upgrade or replace such utilities at the City’s sole cost,
and reasonably to add additional underground public utilities in the future (as well as
above-ground City utilities that involve a future, new technology that is then in use in an
above-ground form along other Cornell streets), with the same right to maintain, repair,
and upgrade them; and (b) a right of reverter to the City (or a successor municipality if
the City of Ithaca should no longer exist) in the event that Cornell or a successor
institution of higher learning, ceases to exist at its present campus in the City of Ithaca.
The conveyance, by quitclaim or other deed, shall be executed, together with
associated documents required for filing purposes or to comply with the provisions of
this Agreement, within 60 days of the execution of this Agreement, and recorded (by
Cornell) in the Office of the Tompkins County Clerk. The parties acknowledge that the
conveyance is made for no consideration other than the contractual obligations
assumed hereunder by Cornell.
2. Cornell, at its sole cost, agrees to design and implement the
comprehensive stabilization, reconstruction and repair of the Portion of University
Avenue (the “Project”), as a two-way street with the parameters described in Paragraph
5, below, and to standards at least as high as those met by other, typical Cornell-owned
streets on its campus that serve a similar, average daily traffic demand (approximately
8,000 vehicles per day as of 2001). At Cornell’s sole cost, Cornell shall relocate any
City-owned underground utilities in the rebuilt Portion of University Avenue which
reasonably must be relocated as a result of such rebuilding (or any future repair or
rebuilding). Cornell shall provide plans and specifications for such relocation to the City
Engineer in advance, for review and approval, which approval shall not be unreasonably
withheld or delayed. Cornell shall allow the City, if it so elects, to upgrade such utilities
or to add new, underground utilities, at the City’s own expense, at the time of the
Project. The parties agree to share plans and information so that any such repairs or
upgrades by the City may be coordinated, and the work of both parties completed, in a
cooperative, efficient and timely manner.
3. Cornell shall complete implementation of the Project on or before December
1, 2013, subject to the following:
(a) If Cornell has made timely and diligent application for necessary
approvals of the Project, and such approvals are not issued so as to
allow for commencement of the Project by June 1, 2013, then, upon
Cornell’s written notification to the City of such delay, the time for
completion shall be extended by the duration of the delay in such
issuance beyond June 1, 2013; and
(b) The timely completion of currently-planned Cornell building projects
adjacent to the Project area (to wit, Milstein Hall, the Central Avenue
Parking Garage, and the addition to the Johnson Art Museum),
provided the approval of such projects and their completion have been
diligently pursued by Cornell (with nothing herein to be construed as
relieving Cornell of its obligation to implement the University Avenue
Project, if it does not proceed with the afore-mentioned building
projects).
In the event that Cornell encounters delays in its ability to complete the Project, due to
circumstances unforeseen and beyond Cornell’s reasonable control, it may request an
extension from the City, which request shall not be unreasonably denied. In the event
Board of Public Works – August 13, 2008- Page 14
that, prior to commencement of the afore-mentioned road reconstruction, the Portion of
University Avenue requires temporary repairs or maintenance (including but not limited
to patching holes or other defects in the pavement), in order to ensure reasonable
public safety or to maintain general consistency with the standards applicable to and in
use for other Cornell-owned streets on its campus that are subject to similar traffic
demands, then in that case Cornell shall undertake such temporary repairs or
maintenance in a timely fashion and at Cornell’s sole cost.
4. Cornell shall comply with all applicable legal requirements with respect to
the design and implementation of the Project, including but not limited to obtaining
approval pursuant to the City’s Site Development Plan Review Ordinance. Cornell shall
meet the design requirements of the Americans With Disabilities Act (ADA) concerning
curb cuts, curb ramps, crosswalks, and sidewalks. The parties recognize that the
Cornell campus as a whole is subject to the ADA and that Cornell maintains a large
ADA-compliant network that facilitates accessibility and campus compliance when
unavoidable steep grades and other site constraints are present at individual locations.
5. The implemented design of the reconstructed Portion of University Avenue
shall contain the following, and meet the following minimum specifications:
a. two lanes (one in each direction) for motorized vehicular travel, each at
least 10 feet wide, with a combined total (minimum) width of 22 feet;
b. uphill bicycle lane 5 feet wide (minimum);
c. curbs on both sides of paved travel lanes (approximate total width of 1
foot);
d. sidewalk (minimum) 6 feet wide on the north/northwest side of the
street;
e. unimpeded height of at least 15’-0” for the travel corridor;
f. street lighting similar to other street lighting on the Cornell campus for
locations with similar needs and usage, and including appropriate
lighting to maintain a safe, ambient level of light and visibility for any part
of the street that is located beneath a building;
g. an associated bus shelter, which Cornell agrees to allow Tompkins
Area Consolidated Transit (TCAT) to maintain in the vicinity for as long as
TCAT (or its successor) wants to so maintain it; and
h. curb lawn and snow storage area, where feasible (see below).
It is agreed that Cornell shall not be required to move the north/northwest line of the
sidewalk any further north/northwest than its present location, or the northern edge of
the proposed Central Avenue Parking Garage any further south than its currently
proposed location, provided that the foregoing minimum specifications are met. The
parties recognize that a curb lawn between the sidewalk and the west-bound travel
lane, as well as snow storage areas, are desirable but will probably be difficult to
accommodate because of site conditions. The parties acknowledge that a higher
priority for available space and resources should be placed on an uphill bicycle lane
than on a curb lawn or snow storage area. The parties also acknowledge that the site
is extremely limited by steep topography (particularly to the north), the adjacent Fall
Creek Gorge (including Fall Creek’s designation as a Recreational River), and Cornell’s
pre-existing and planned land uses in the vicinity. The specifications set forth in this
Paragraph are not intended to infringe upon the authority of the Planning and
Development Board of the City of Ithaca to carry out its responsibilities pursuant to the
Site Plan Review Ordinance of the City Code, or to constrain any required
environmental review of the proposed road reconstruction (once the scope and details
of such reconstruction are known).
6. Cornell agrees that it will maintain the Portion of University Avenue and its
associated sidewalk, curbs, and lighting, to standards at least as high as those for other,
typical Cornell-owned streets and sidewalks on campus with similar traffic demands.
7. The parties agree that nothing herein shall preclude the City from requesting
(or Cornell from implementing, at the City’s request or on Cornell’s own initiative or in
cooperation with the City) the installation of trolley tracks or other infrastructure for fixed-
rail transport within the minimum dimensions of the parameters of the public travel
corridor as defined in Paragraph 5 of this Agreement, provided that such tracks or other
infrastructure do not prevent the safe use of the street by private, motorized vehicles,
bicycles and pedestrians. Such a request by the City shall be duly considered by
Board of Public Works – August 13, 2008- Page 15
Cornell on its merits and in good faith. It is acknowledged that responsibility for the cost
of, and assumption of liability or indemnification for, any such improvement will need to
be determined by the parties at a future date.
8. Cornell agrees that it will retain the name “University Avenue” for the
Portion of University Avenue.
9. Cornell agrees that it will permanently allow the public to use the Portion
of University Avenue for generally unrestricted travel purposes, and to keep the Portion
generally open for street purposes, except as provided for hereafter. Upon appropriate
prior notice (except in the case of an emergency or other short-term exigency when it is
not feasible to give advance notice) and with provisions for reasonable emergency
vehicle access (which may be suitable alternative access), Cornell may close the
Portion of University Avenue temporarily
(i) as required for adjacent construction, or for street repairs or reconstruction;
(ii) for special campus events, which events shall be limited to no more than 4
days in any calendar year; and
(iii) in the event of an emergency or other, short-term exigency.
Cornell agrees to take reasonable steps to minimize the time period of any complete
closure and to arrange for and coordinate emergency vehicle access during any such
closure. In the event of a non-emergency closure lasting more than one week, Cornell
coordinate with the Ithaca Fire Department and arrange for a mutually agreed-upon,
reasonable detour, and in addition shall ensure that East Avenue, at least between
Tower Road and the Thurston Avenue bridge, is open (and designated) as a two-way
detour during any non-emergency closure lasting more than one week.
10. Cornell shall be responsible for the establishment of traffic controls over
the Portion of University Avenue, consistent with the same authority and requirements
that Cornell is subject to for the establishment of controls over other campus roads,
except that in any case such controls for University Avenue shall not include access-
control gates or other such barriers to the normal flow of traffic. Any in-road devices
intended to slow traffic (for example, “speed humps”) shall be compatible with the safe
passage of long-wheel-base vehicles (such as fire trucks and buses) and shall be
implemented in consultation with the Ithaca Fire Department and the municipal transit
authority.
11. The parties agree that this agreement may be recorded by either party in
the Office of the Tompkins County Clerk.
12. The parties agree that it is in their mutual interests to avoid
misunderstandings or failures of communication regarding compliance with the terms of
this Contractual Agreement. If one party believes that there is a substantive
disagreement or difference of opinion or interpretation, or potential substantive
disagreement or difference (the “Matter”), that is not being addressed through the
normal channels of communication between the parties, then that party agrees to send
a written notice (if to the City to the office of the Mayor, if to Cornell to the Office of the
Executive Vice President), outlining the nature of the Matter and certifying that the party
believes it to be substantive and within the terms of this Agreement. In the event that
said disagreement pertains to a minor or operation-related aspect of this agreement, the
parties agree to use the dispute resolution procedure described hereafter. If the
disagreement instead concerns an essential term or condition of the parties’ agreement
(such as the obligation to reconstruct the road or to keep it open for generally
unrestricted public travel), either party may elect to waive the arbitration procedure
described above at any time and to bring an action in a court of law with appropriate
jurisdiction. Unless so waived, the dispute resolution procedure shall proceed as
follows. Within forty-five days of the submission of the afore-mentioned notice of
disagreement, the parties’ representatives (not necessarily the officers to whom notice
was sent) shall meet to discuss the Matter together and make a good faith effort to
resolve it, or, if the Matter is such that it cannot be resolved by one meeting, then the
parties agree to meet again in a timely fashion, at least one additional time, to try to
resolve it. If either party is not satisfied with the outcome of such efforts, then after not
less than 150 days, but not more than 240 days, the party may apply for resolution of
the Matter to the American Arbitration Association (“AAA”) by a single arbitrator. Each
Board of Public Works – August 13, 2008- Page 16
party shall bear the costs of its own representation but the party that loses the
arbitration shall bear the cost of the AAA fees and expenses. The parties hereby agree
that, during the pendency of any attempted discussion or arbitration of any such
disagreement, they will each refrain from commencing or continuing to effect any
physical change that would adversely affect the capacity of the Portion of University
Avenue to function as a street open for travel by members of the public consistent with
the minimum specifications set forth in Paragraph 5, above, and that in the event of
either party’s alleged failure to so refrain, nothing herein shall be construed to prohibit
either party from seeking temporary or injunctive relief as necessary from a court of
competent jurisdiction.
13. Mutual indemnification:
(a) Except as otherwise provided for herein, the City agrees to indemnify
and hold Cornell harmless, including reasonable defense costs, with
regard to any claims, actions or lawsuits made or brought, or any
judgments or damages awarded (collectively, “claim” or “claims”)
against Cornell for liability for negligence during the time the Portion of
University Avenue is or was owned or controlled by, or under the
jurisdiction of, the City (i.e., prior to the conveyance called for in
Paragraph 1 of this Agreement), provided that timely notice of any
such claim, reasonable opportunity for the City to control the defense
against the claim, and the cooperation of Cornell in such defense, are
given. Such indemnification shall not affect Cornell’s liability for any
negligence on its part with regard to the maintenance of the sidewalk
associated with the Portion of University Avenue.
(b) Cornell agrees to indemnify and hold the City harmless including
reasonable defense costs, with regard to any claims, actions or
lawsuits made or brought, or any judgments or damages awarded
(collectively, “claim” or “claims”) against the City for liability for
negligence during the time the Portion of University Avenue is owned
or controlled by, or under the jurisdiction of, Cornell (i.e., following the
conveyance called for in Paragraph 1 of this Agreement), provided that
timely notice of any such claim, reasonable opportunity for Cornell to
control the defense against the claim, and the cooperation of the City
in such defense, are given. Such indemnification shall not affect the
City’s liability for any negligence on its part with regard to the
maintenance, repair, upgrade or replacement of its existing
underground public utilities or any future, above-ground, City utilities as
referred to in Paragraph 1 above.
14. This agreement shall be binding upon, and the rights provided for hereunder
shall inure to the benefit of the parties and their successors.
15. If any provision or part of a provision of this Agreement is found to be
illegal or unenforceable or void or contrary to public policy, the parties agree to sever
the illegal or unenforceable or void or contrary to public policy portion and amend the
Agreement to preserve the meaning and intent of the Agreement in harmony with the
balance of the Agreement, without materially changing the substantive (including
financial) obligations and rights of, or exchange of consideration by, either party, without
its express written consent. Notwithstanding the foregoing provisions of this Paragraph,
the parties agree individually and collectively to defend vigorously this Agreement and
the actions authorizing their respective executions of it, against suits, proceedings
(including under Article 78 of the NY Civil Procedure Law and Rules), or other
challenges.
16. This Agreement constitutes the entire agreement between the parties as
to the issues set forth herein, and prior agreements, negotiations, letters, and other
communications concerning the Portion of University Avenue are superseded and
merged into this agreement.
SIGNED by the respective parties the day and year indicated below:
Date: ____________________ CITY OF ITHACA
Board of Public Works – August 13, 2008- Page 17
By: ___________________________________
Carolyn K. Peterson
Mayor
Date: ____________________ CORNELL UNIVERSITY
By: ___________________________________
[Name]
[Title]
[Notary Public statements]
ADMINISTRATION AND COMMUNICATIONS:
Commissioner Schlather extended his thanks to Commissioners Tripp and Chapman
and to Mayor Peterson and City Attorney Hoffman for their many meetings on the
University Avenue discontinuance request.
SUPERINTENDENT AND STAFF
Asst. Supt. of Streets & Facilities Ferrel’s Report
Asst. Supt. Ferrel reported that construction on Linden Avenue has been completed. A
portion of Stewart Avenue has been milled and should be open by the weekend. Court
Street should be paved on August 14, 2008, and the milling machine will be in the City
on August 21, 2008.
He further reported that City Electrician, Jim Crandall is retiring and his last day will be
August 14, 2008. Carol Reeves, Office Manager at Streets & Facilities will be retiring in
September, 2008.
Asst. Supt. of Water & Sewer Whitney’s Report
Asst. Supt. Whitney reported that John Skawski from NYS Dam Safety would be
inspecting the 30’ dam on August 18, 2008.
ADJOURNMENT:
On a motion the Regular Board of Public Works meeting adjourned at 7:30 p.m.
Committee of the Whole:
The Board of Public Works reconvened into a Committee of the Whole meeting to
discuss the City of Ithaca Water Supply project. The Draft Environmental Impact
Statement (DEIS) was distributed to Board members. Steve Eckler, O’Brien & Gere
and Acting Director of Planning & Development Cornish joined the Board for discussion.
Extensive discussion followed on the floor regarding the process the Board should
follow in reviewing the DEIS and providing input as to its completeness. The Board
decided it needed a block of time to review the document and requested that, if
possible, it be the only item on their agenda for their August 20, 2008 Committee of the
Whole meeting.
Superintendent Gray stated that he would set up next week’s meeting as a Special
Meeting just for this topic with the caveat that if something requires action such as a bid
or other item, that they consider that item as well.
No Board member objected.
ADJOURNMENT:
On a motion the meeting adjourned at 8:15 p.m.
________________________________ _______________________________
Sarah L. Myers Carolyn K. Peterson
Information Management Specialist Mayor