HomeMy WebLinkAbout07-28-10 City Administration Committee Meeting AgendaCITY ADMINISTRATION COMMITTEE
Wednesday July 28, 2010
7:00 PM
COMMON COUNCIL CHAMBERS
AGENDA
1. Chairperson Greeting & Opening Statement
2. Announcements
3. Agenda Review and Amendments
4. Approval of Minutes
5. Statements from the Public
6. Employee Comments
7. Common Council Response
8. Workforce Diversity Committee
9. Safety Committee
10. Fire Department
10.1 Amendment to Budget for Chemical Detection Device Grant —Resolution
11. IURA
11.1 Declaration of Lead Agency - Downtown Commons Upper Story Housing Project,
Authorize Use of `Gateway' Proceeds for a Short-Term Loan from the Ithaca Urban
Renewal Agency to Plantation Building LLC — Resolution
11.2 Environmental Determination - Downtown Commons Upper Story Housing Project,
Authorize Use of Gateway Proceeds for a Short-Term Loan from the Ithaca Urban
Renewal Agency to Plantation Building LLC — Resolution
11.3 Downtown Commons Upper Story Housing Project, Authorize Use of `Gateway'
Proceeds for a Short -Term Loan From the Ithaca Urban Renewal Agency to Plantation
Building LLC - Resolution
12. Common Council
12.1 Apprenticeship Policy — Discussion/Possible Resolution
13. Department of Public Works
13.1 Request to Approve Funding Match for TIGER II Grant Application — Resolution
14. Attorney's Office
14.1 Item(s) to be presented prior to or at the meeting
15. Human Resources
15.1 CSEA Compensation Study — Discussion/Possible Resolution
15.2 Director's Report
CITY ADMINISTRATION COMMITTEE
Wednesday July 28, 2010
Agenda - Continued
16. Finance /Controller's Office
16.1 Approval of 2008 Single Audit Report — Resolution
16.2 Authorization to Contribute to the Reserves of the Greater Tompkins County
Municipal Health Insurance Consortium — Resolution
16.3 Authorization to Enter into an Agreement with the Greater Tompkins County
Municipal Health Insurance Consortium - Resolution
16.4 NY Retirement Incentive — Discussion/Possible Resolution
16.5 Controller's Report
17. Reports
17.1 Mayor's Report
17.2 Sub- Committee Updates
17.3 Council Members' Announcements
17.4 Next Month's Meeting: August 25, 2010
10. Fire Department
.1 Request to Amend 2010 Budget for New York State Grant
WHEREAS, the City of Ithaca is the lead recipient of a 2009 New York State Office of
Homeland Security Hazardous Materials Grant in the amount of $22,000, and
WHEREAS, the City of Ithaca as the lead recipient is responsible for the financial execution and
administration of the grant, and
WHEREAS, the other grant recipients include Cayuga County, Cortland County and Tioga
County, and
WHEREAS, the Homeland Security Grant will be used to purchase a Chemical Detection Device
on New York State Contract for $20,000, and
WHEREAS, the remaining $2,000 will be used for training cost for City of Ithaca employees and
employees and or agents of partner agencies; now, therefore be it
RESOLVED, That Ithaca Common Council hereby amends the 2010 Authorized City Budget by
the amount not to exceed $22,000 to be used for said expenses as outlined by the 2009 New
York State Office of Homeland Security Hazardous Materials Grant with amended budgets as
follows:
Increase Revenue Account:
A3410 -3989 State Aid $22,000
Increase Expense Accounts:
A3410- 5225 -12150 Other Equipment $20,000
A3410 -5440 -12150 Staff Development $ 2,000
and be it further
RESOLVED, That income received from the 2009 New York State Office of Homeland Security
Hazardous Materials Grant shall be used to reimburse the City of Ithaca for its expenses, as
outlined by the grant.
J:\DRedsicker\AGE-NDAS \City Admin Comm \2010 \7 -28 CA Agenda.doc 7/28/10
11. IURA
.1 Declaration of Lead Agency — Downtown Commons Upper Story Housing Project,
Authorize Use of `Gateway' Proceeds for a Short -Term Loan from the Ithaca Urban
Renewal Agency to Plantation Building LLC
WHEREAS, the City of Ithaca Common Council is considering authorization of use of
`Gateway' proceeds by the Ithaca Urban Renewal Agency (IURA) to make a short -term loan to
Plantation Building LLC for construction phase project expenses to renovate the Plantation
Building to implement one of the two projects included in the Downtown Commons Upper Story
Housing Project for which the City of Ithaca received a $1.15 million grant award through the
Restore NY program, and
Whereas, Sunit "Lex" Chutintaranond and Flaminia Cervesi are each 50% owners in Plantation
Building LLC, the operating company that will undertake redevelopment of a $2.47 million
project to redevelop the vacant Plantation Building located at 130 -132 E. State/MLK Street to
create a 4,000 square foot restaurant, 1,200 square feet of commercial office space, six market -
rate, one - bedroom apartments and two affordable, one - bedroom apartments, and
WHEREAS, the IURA holds `Gateway' proceeds oh behalf of the City of Ithaca, which were
derived from the sale of City -owned real estate to Eddygate Park Associates in 1986 to facilitate
the Eddygate mixed -use project in Collegetown for which sales proceeds were realized in 2002
and contributed to the IURA to provide loan financing to facilitate the Gateway Plaza
redevelopment project at 401 E. State/MLK Street and subsequently repaid in full, and
WHEREAS, on November 24, 2009, the proposed renovation of the Plantation Building
underwent environmental review during the site plan review process and at that time it was
determined that the project will result in no significant impact on the environment, and
WHEREAS, the proposed short -term loan to Plantation Building LLC is an Unlisted action
under the City Environmental Quality Review Ordinance ( CEQRO), and
WHEREAS, State Law and Section 176.6 of CEQRO require that a Lead Agency be established
for conducting environmental review of proposed actions in accordance with local and state
environmental law, and
WHEREAS, State Law specifies that for actions governed by local environmental review the
Lead Agency shall be that local agency which has primary responsibility for approving and
funding or carrying out the action; now, therefore, be it
RESOLVED, that the City of Ithaca Common Council does hereby declare its intent to declare
itself Lead Agency for the environmental review of the proposed authorization of the use of
`Gateway' proceeds by the IURA to make a short term loan to Plantation Building LLC to
implement the Downtown Commons Upper Story Housing project at 130 -132 E. State/MLK
Street until Restore NY grant funds are available.
J:\DRedsickeA\AG1✓NDAS \City Admin Comm\2010 \7 -28 CA Agenda.doc 7/28/10
11. IURA
.2 Environmental Determination - Downtown Commons Upper Story Housing Project,
Authorize Use of Gateway Proceeds for a Short -Term Loan from the Ithaca Urban
Renewal Agency to Plantation Building LLC
WHEREAS, the City of Ithaca Common Council is considering authorization of use of
`Gateway' proceeds by the Ithaca Urban Renewal Agency (IURA) to make a short -term loan to
Plantation Building LLC for construction phase project expenses to renovate the Plantation
Building to implement one of the two projects included in the Downtown Commons Upper Story
Housing Project for which the City of Ithaca received a $1.15 million grant award through the
Restore NY program, and
Whereas, Sunit "Lex" Chutintaranond and Flaminia Cervesi are each 50% owners in Plantation
Building LLC, the operating company that will undertake redevelopment of a $2.47 million
project to redevelop the vacant Plantation Building located at 130 -132 E. State/MLK Street to
create a 4,000 square foot restaurant, 1,200 square feet of commercial office space, six market -
rate, one - bedroom apartments and two affordable, one - bedroom apartments, and
WHEREAS, the IURA holds `Gateway' proceeds oh behalf of the City of Ithaca, which were
derived from the sale of City -owned real estate to Eddygate Park Associates in 1986 to facilitate
the Eddygate mixed -use project in Collegetown for which sales proceeds were realized in 2002
and contributed to the IURA to provide loan financing to facilitate the Gateway Plaza
redevelopment project at 401 E. State/MLK Street and subsequently repaid in full, and
WHEREAS, on November 24, 2009, the proposed renovation of the Plantation Building
underwent environmental review during the site plan review process and at that time it was
determined that the project will result in no significant impact on the environment, and
WHEREAS, the proposed action will provide financing to undertake renovation of the Plantation
Building in accordance with the site plan approval issued by the City of Ithaca Planning and
Development Board on November 24, 2009, and
WHEREAS, on August 4, 2010, the City of Ithaca Common Council declared itself Lead
Agency for the environmental review of this proposed action, and
WHEREAS, the proposed short-term loan to Plantation Building is an Unlisted action under the
City Environmental Quality Review Ordinance (CEQRO), which requires environmental review,
and
WHEREAS, the Short Environmental Assessment Form ( "SEAF ") and supporting information
has been provided to the City of Ithaca Conservation Advisory Council for review of the
proposed action and no comments have been received to date, and
WHEREAS, the City of Ithaca Common Council, acting as Lead Agency for the environmental
review, has reviewed and accepted as adequate a Short Environmental Assessment Form, Part 1,
submitted by the applicant, and Part 2, prepared by Planning and Development Department staff,
and other application materials; now, therefore, be it
J:\DRedsicker\AGENDAS \City Admin Comm\2010 \7 -28 CA Agenda.doc 7128/10
RESOLVED, that the City of Ithaca Common Council hereby determines that the proposed
authorization of use of `Gateway' proceeds by the IURA to make a short -term loan to Plantation
Building LLC to implement the Downtown Commons Upper Story Housing project at 130 -132
E. State/MLK Street will result in no significant impact on the environment and that a Negative
Declaration for purposes of Article 8 of the Environmental Conservation Law be filed in
accordance with the provisions of Part 617 of the State Environmental Quality Review Act.
J:\DRedsicker\AG1rNDAS \City Admin Comm\2010 \7 -28 CA Agenda.doc 7/28/10
11. IURA
.3 Downtown Commons Upper Story Housing Project, Authorize Use of `Gateway'
Proceeds for a Short -Term Loan From the Ithaca Urban Renewal Agency to Plantation
Building LLC
WHEREAS, on June 25, 2010, Sunit "Lex" Chutintaranond, managing member of Plantation
Building LLC, requested a short -term bridge loan of $512,000 until Restore NY grant funds can
be accessed from the Empire State Development Corporation (ESD) for the comprehensive
rehabilitation project of the Plantation Building located at 130 -132 E. State/MLK Street, and
WHEREAS, the amount of loan assistance requested is equal to approximately three months of
project construction expenditures, and
WHEREAS, Lex Chutintaranond and Flaminia Cervesi are each 50% owners in ItalThai LLC,
the owner of the Plantations Building, and Lex Chutintaranond is the sole owner of Plantation
Building LLC, the operating company that will undertake the redevelopment project and
syndicate historic tax credits, and
WHEREAS, the City of Ithaca was awarded $900,000 in Restore NY grant funds to assist in the
$2.47 million redevelopment of the vacant Plantation Building to create a 4,000 SF restaurant,
1,200 SF of commercial office space, six market -rate, one - bedroom apartments and two
affordable one - bedroom apartments, and
WHEREAS, the City authorized the Ithaca Urban Renewal Agency (IURA) to administer and
implement the Restore NY grant, and
WHEREAS, Restore NY grant funds can be accessed via a Grant Disbursement Agreement
(GDA) per the following process:
A. submit proof of project readiness to ESD, including proof of completion of
environmental review, state historic preservation office review and site plan review; a
final project budget, including an independent construction estimate; and
documentation that all project funding is committed, including bank financing,
B. ESD Board approval,
C. Public Authorities Control Board (PACB) approval,
D. Completion of ESD public hearing,
E. Issuance of a GDA, and
WHEREAS, during the three month impasse to adopt the 2010 -2011 New York State budget, no
GDAs for Restore NY projects were approved by the PACB, and
WHEREAS, with adoption of a significant portion of the NYS 2010 -2011 budget in early July,
the PACB has resumed approval of new GDAs for Restore NY projects, and
WHEREAS, the Plantation Building Restore NY project is scheduled for ESD Board review in
September 2010, which is expected to result in issuance of a GDA in October 2010, and
J:\DRedsicker \AGENDAS \City Admin Comm\2010 \7 -28 CA Agenda.doc 7/28/10
WHEREAS, Plantation Building LLC has executed a construction contract with a guaranteed
maximum price that is on- budget, and
WHEREAS, the interior demolition, site preparation and asbestos removal has been completed,
leaving the structure in fragile condition and developer equity exhausted, and
WHEREAS, installation of an elevator, a new HVAC system and replacement of the roof all
need to be completed prior to cold weather to prepare the building for winter and avoid increased
project costs, and
WHEREAS, shutting down the project to wait for access to Restore NY funds in late October
imperils project feasibility, and
WHEREAS, use of CDBG funds for the requested loan is problematic because use of CDBG
funds for construction activities requires compliance with the Davis -Bacon Act which would
require re- bidding the construction project, and
WHEREAS, the IURA holds "Gateway" proceeds on behalf of the City of Ithaca, which were
derived from the sale of City -owned real estate to Eddygate Park Associates in 1986 to facilitate
the Eddygate Park Apartment mixed- income 64 -unit rental housing project in Collegetown for
which sales proceeds were realized in 2002, and
WHEREAS, in 2002 "Gateway" proceeds were loaned to Gateway Plaza Associates, LLC to
facilitate the Gateway Plaza project located at 401 E. State/MLK Street with repayments
earmarked by the City of Ithaca Common Council for affordable housing activities, and
WHEREAS, the Gateway Plaza loan was fully repaid in 2007, and
Whereas, the balance of "Gateway" proceeds is approximately $595,600 as of June 30, 2010, of
which $100,000 has been earmarked as a contribution to the Housing Fund, leaving an
unobligated balance of $495,600, and
WHEREAS, the Plantations Building project includes affordable housing, and
WHEREAS, use of "Gateway" proceeds requires approval from the City of Ithaca Common
Council, and
WHEREAS, the IURA conducted an underwriting of the loan application and recommend
approval of a $490,000 short -term loan subject to approval by the City of Ithaca Common
Council, and
WHEREAS, the proposed IURA loan will be repaid from Restore NY grant funds disbursed by
the Empire State Development Corporation to the City of Ithaca that are earmarked for the
Plantation Building project and is further secured through mortgages and personal and corporate
financial guarantees provided by the borrower; and
WHEREAS, the Ithaca Urban Renewal Agency recommends City of Ithaca Common Council
approval of the use of `Gateway' proceeds to fund this bridge loan; now, therefore, be it
J:\DRedsicker\AGENDAS \City Admin Comm\2010 \7 -28 CA Agenda.doc 7/28/10
RESOLVED, that the Common Council for the City of Ithaca hereby authorizes the use of
`Gateway' proceeds by the TURA to make a short -term loan to Plantation Building LLC to
implement the Downtown Commons Upper Story Housing Project.
7:\DRedsicker\AGE-NDAS \City Admin Comm\2010 \7 -28 CA Agenda.doc 7/28/10
CITY SHORT ENVIRONMENTAL ASSESSMENT FORM
Project Information: To be completed by applicant or project sponsor.
Date: 7/16/10
1. Applicant/Sponsor:
2. Project Name:
Ithaca Urban Renewal Agency (IURA)
Downtown Commons Upper Story
Housing Project, Authorize Use of
`Gateway' Proceeds for a Short -Term
Loan from the Ithaca Urban Renewal
Agency to Plantation Building LLC
3. Project Location:
130 -132 E. State /MLK Street
4. Is Proposed Action:
X New o Expansion
o Modification/Alteration
5. Describe project briefly:
Authorize use of `Gateway' proceeds for a short -term loan from the IURA to
Plantation Building LLC for construction phase project expenses until Restore NY
grant funds become available
6. Precise Location (Road Intersections, Prominent Landmarks, etc. or provide
map)
Former Plantation Building on The Commons at 130 -132 E. State /MLK Street
7. Amount of Land Affected:
Initially: 5,000 Sq. ft. Ultimately: 5,000 Sq. Ft.
8. Will proposed action comply with existing zoning or other existing land use
restrictions?
X Yes o No If No, describe briefly:
9. What is present land use in vicinity of project:
o Residential o Industrial o Agricultural o Parkland /Open Space
X Commercial o Other
Describe:
10. Does action involve a permit/approval, or funding, now or ultimately, from
governmental agency (Federal, State or Local): X Yes o No
If Yes, List Agency Name and Permit /Approval Type:
Empire State Development Corp. funding of the Restore NY grant
11. Does any aspect of the action have a currently valid permit or approval?
X Yes o No
If Yes, List Agency Name and Permit/Approval Type:
City of Ithaca Planning & Development Board — site plan approval
City of Ithaca Building Department — building permit
12. As a result of proposed action will existing permit/approval require modification?
o Yes X No
I certify that the information provided above is true to the best of my knowledge.
PREPARER'S SIGNATURE: ` DATE: 1uly 16, 2010
PREPARER'S TITLE: Nels Bohn, irector of Community Development
REPRESENTING: Ithaca Urban Renewal Agency
SHORT ENVIRONMENTAL ASSESSMENT FORM
Part II
To Be Completed By Staff
lame of Project: Downtown Commons Upper Story Housing Project, Authorize
Ise of `Gateway' Proceeds for a Short-Term Loan from the Ithaca Urban Renewal
kgency to Plantation Building LLC
Yes No
1. Will project result in a large physical change to the project site or physically alter ❑
more than one acre of land?
2. Will there be a change to any unique or unusual land form found on the site or to any ❑ El
site designated a unique natural area or critical environmental area by a local or state
agency?
3. Will the project alter or have any effect on an existing waterway? ❑ x❑
4. Will the project have an impact on groundwater quality? ❑ 0
5. Will the project affect drainage flow on adjacent sites? ❑ El
6. Will the project affect any threatened or endangered plant or animal species? ❑ D
7. Will the project result in an adverse effect on air quality? ❑ IXXI
8. Will the project have an effect on visual character of the community or scenic views ❑ M
or vistas known to be important to the community:
9. Will the project adversely impact any site or structure of historic, pre- historic, or ❑ D
paleontological importance or any site designated a local landmark or in a landmark
district?
10. Will the project have an effect on existing or future recreational opportunities? ❑ D
11. Will the project result in traffic problems or cause a major effect to existing ❑ 0
transportation systems?
12. Will the project cause objectionable odors, noise, glare, vibration, or electrical ❑ 0
disturbance as a result of the project's operation during construction or after
completion?
13. Will the project have any impact on public health or safety? ❑ 0
14. Will the project affect the existing community by directly causing a growth in ❑ 0
permanent populations of more than 5 percent over a one -year period OR have a
negative effect on the character of the community or neighborhood?
15. Is there public controversy concerning the project? ❑ 121
If any question has been answered YES, a completed Full Environmental Assessment Form (FEAF) is
necessary.
PREPARER'S SIGNATURE: DATE:
PREPARER'S TITLE: � <C- f v rn
REPRESENTING: C TtAxu -
j: \staff\nels \nelsl \iura \loans \other \gateway \lex bridge loan plantations building \seaf part ii - bridge loan plantations
building 7- 28- 10.doc
Ithaca, June 25, 2010
IURA
ATTN: Nels Bohn
Phillysa DeSarno
Request For Bridge Loan For Plantation Building Project
I am writing to request a bridge loan for the restoration and renovation of
the former Plantation Building. It has been more than a year since this project started, and
I have worked very closely with the RJRA on this since February of 2009. Together we
have won the Restore NY Grant and I have also qualified for the Federal and State
Rehabilitation Tax Credits. Furthermore, I have also received tax abatement from TCAD
as well as a $50,000 loan for the project. In addition, the IURA has also agreed an
$80,000 loan. M &T Bank has also agreed to provide construction and permanent
financing for this project. The architectural design of the building has been completed by
Holt Architects and has been approved by the Building Department. The construction has
already started and progress has been continuing at a very rapid speed.
The current problem we face -is the delay in the distribution of the grant
money, due to the state of the NYS budget. Because of the delay in passing the budget,
the grant money which is held by the Empire State Development Corporation will not be
available for our project until sometime in October. We have worked very hard and took
great risk to get to this point. The delay in the disbursement of the grant proceeds
becomes an immediate obstacle to closing the bank loan and will result in the shutdown
of the current construction. The construction is scheduled to be completed by October
25`f' of this year. The delay of the construction into the winter months will make its
completion, not only more expensive, but more difficult due to the weather. Any
postponement will add additional increases, as material cost increases each month.
Shutting down and restarting the construction will also add additional expenses.
Physically, the building is no longer winter proof due to the removal of outside layers to
make asbestos removal possible. Furthermore the demolition of all existing floors puts
the building at a fragile state. All sprinkler pipes will freeze which will be most unsafe
for the building itself as well as dangerous to the adjacent buildings. The expenses of
maintaining this building is very high from mortgage payments and insurance, to school
and property taxes. Having the building idle for a few more months will put further stress
on my financial situation with the project. In addition., to make sure that the restaurant,
which is a big part of the whole project, opens in time, I have already hired staff and put
restaurant plans in action_ Any delay on the opening of the restaurant will also mean
addi.tional cost of maintaining additional staff for the new business. The estimated overall
cost for shutting down the construction for four months is $90,000. This is an additional
cost this project cannot afford.
Currently, the construction cost due for the months of April, May and June
is $180,000. The construction cost for July is projected to be $332,000. LeChase
Construction Services, our general contractor, understands our financial circumstances
and strongly recommends that we continue with the construction until the end of July,
and will not bill us until the end of August. At the end of July, we will reassess our
financial situation and if we cannot get any form of interim bridge financing in place, we
will have to shutdown the construction.
My request to the IURA is a bridge loan for the amount of $512,000 to
help keep the construction going until the Restore NY grant becomes available. If we can
pay the $512,000 in pay application from Le Chase in late August or early September, we
can continue the construction without interruptions. The construction bill for August,
which is due in September, will be paid from the $80,000 loan from the fURA (already
approved) and me. By this point, the grant money as well as the bank loan should be in
place to pay the future development costs_ This $512,000 bridge loan will be immediately
paid by the Restore NY grant proceeds. As collateral, I would like to offer my building at
622 Cascadilla Street. The equity value on this property is estimated at $400,000-
$450,000. I will provide additional equity if more is required.
The Plantation Building project is not an ordinary project. I feel that we
have overcome many obstacles to date and the worst is now behind us. We seem to have
arrived where we were supposed to be according to our business plan. This unexpected
problem with the State budget is the last obstacle we have to overcome. With the help of
the IURA, which has been our greatest supporter, I am sure that we can see through to the
completion of this project.
Thank you very much for all your support. I remain at your disposal for
any further communication on this matter. Thank you for your time and consideration.
Regards,
Lex
Adopted Resolution
IURA Economic Development Committee
July 13, 2010
Gateway Proceeds — Short-Term Loan Assistance to Plantation Building LLC
Whereas, on June 25, 2010, Sunit "Lex" Chutintaranond, managing member of Plantation
Building LLC, requested a short-term bridge loan of $512,000 until Restore NY grant funds
can be accessed from the Empire State Development Corporation (ESD) for the
comprehensive rehabilitation project of the Plantation Building located at 130 -132 E.
State /MLK Street, and
2. Whereas, the amount of loan assistance requested is equal to approximately three months
of project construction expenditures, and
3. Whereas, Lex Chutintaranond and Flaminia Cervesi are each 50% owners in both ItalThai
LLC, the owner of the Plantations Building, and Plantation Building LLC, the operating
company that will undertake the redevelopment project and syndicate historic tax credits,
and
4. Whereas, the City of Ithaca was awarded $900,000 in Restore NY grant funds to assist in
the $2.47 million redevelopment of the vacant Plantation Building to create a 4,000 SF
restaurant, 1,200 SF of commercial office space, six market -rate, one - bedroom apartments
and two affordable one - bedroom apartments, and
Whereas, the City authorized the Ithaca Urban Renewal Agency (IURA) to administer and
implement the Restore NY grant, and
6. Whereas, Restore NY grant funds can be accessed via a Grant Disbursement Agreement
(GDA) per the following process:
A. submit proof of project readiness to ESD, including proof of completion of
environmental review, state historic preservation office review and site plan review; a
final project budget, including an independent construction estimate; and
documentation that all project funding is committed, including bank financing
B. ESD Board approval
C. Public Authorities Control Board (PACB) approval
D. completion of ESD public hearing
Issuance of a GDA, and
7. Whereas, during the three month impasse to adopt the 2010 -2011 New York State budget,
no GDAs for Restore NY projects were approved by the PACB, and
8. Whereas, with adoption of a significant portion of the NYS 2010 -2011 budget in early July,
the PACB has resumed approval of new GDAs for Restore NY projects, and
9. Whereas, the Plantation Building Restore NY project is scheduled for ESD Board review in
September 2010, which is expected to result in issuance of a GDA in October 2010, and
10. Whereas, proposed use of project funds are:
$435,000 acquisition of building
$159,000 demolition, site preparation & environmental remediation
$1,444,000
construction
$164,000
architecture /engineering
$178,000
developer fees
$33,000
construction interest & insurance
$57,000
soft costs, reserves & leasing costs
$2,470,000
Total, and
11. Whereas, the proposed sources of project funds are:
$900,000 Restore NY grant
$391,000 loan #1 M &T Bank — building acquisition
$359,000 loan #2 M &T Bank - project
$80,000 loan #3 IURA— affordable housing
$156,000 equity — managing member
$367,000 equity — Federal rehabilitation (historic preservation) tax credits
$217,000 equity — NYS rehabilitation (historic preservation) tax credits
$2,470,000 Total, and
12. Whereas, the construction project has been bid out with pricing that is on- budget, and
13. Whereas, the interior demolition, site preparation and asbestos removal has been
completed, leaving the structure in fragile condition and developer equity exhausted, and
14. Whereas, bank construction financing is contingent upon final approval of the Restore NY
grant, and
15. Whereas, it is imperative that the construction project advance in a timely manner to install
the HVAC system and make the building weather tight to prevent the existing "wet"
sprinkler system from freezing in cold weather, and to avoid increased project costs, and
16. Whereas, shutting down the project to wait for access to Restore NY funds in late October
imperils project feasibility and substantially increases project costs, and
17. Whereas, all project funding sources are committed except for equity to be generated from
sale of rehabilitation tax credits, and
18. Whereas, rehabilitation tax credits are made available at the Federal and State level to
encourage rehabilitation of historic properties by providing a tax credit equal to 20% of the
cost basis of the project that can be sold to an investor through syndication to generate
equity for the project, and
19. Whereas, the New York State budget process and related legislation has delayed access to
Restore NY funds and destabilized the market for purchase of rehabilitation tax credits,
and
20. Whereas, NYS law, unlike many states, requires the purchaser of the Federal rehabilitation
tax credit to also be the purchaser of any NYS rehabilitation tax credit, thereby effectively
limiting the market to sell tax credits for this project to entities with NYS tax liabilities, and
21. Whereas, a technical error in the 2009 NYS rehabilitation tax credit law inadvertently
prohibited banks and insurance companies from purchasing tax credits, and
22. Whereas, nationwide, banks and insurance companies are the top buyers of tax credits,
and
23. Whereas, the NYS Senate and Assembly have passed legislation correcting this technical
error, but the bill has not been signed into law by the Governor even though the
Governor's office supported the initial legislation, and
24. Whereas, as part of the 2010 -2011 budget process the NYS Assembly, in support of an
initiative by the Governor, passed legislation to defer 50% of a wide variety of tax credits,
including rehabilitation tax credits, for 3 years and also capped the total amount of tax
credits received by any single purchaser to $2 million per year, and
25. Whereas, the NYS Senate has not passed companion legislation to defer and cap tax
credits, and
26. Whereas, the legislative status of NYS rehabilitation tax credits is still unresolved, resulting
in a poor financial climate to sell NYS tax credits, which are projected to generate $217,000
in equity for the project in a stable market that includes banks and insurance companies
who can utilize such credits in the current tax year, and
27. Whereas, the project's development consultant, Port City Preservation LLC, strongly
recommends against the sale of tax credits to investors in the current unstable market and
indicates that sale of the tax credits can be completed within 60 days of initiation, and
28. Whereas, tax credits must be sold by the date the project is put into use (certificate of
occupancy), which is projected for March 2011, and
29. Whereas, use of CDBG funds for the requested loan is problematic because use of CDBG
funds for construction activities requires compliance with the Davis -Bacon Act which would
require re- bidding the construction project, and
30. Whereas, the IURA holds "Gateway" proceeds on behalf of the City of Ithaca, which were
derived from the sale of City -owned real estate to Eddygate Park Associates in 1986 to
3
facilitate the Eddygate Park Apartment mixed - income 64 -unit rental housing project in
Collegetown for which sales proceeds were realized in 2002, and
31. Whereas, in 2002 "Gateway" proceeds were loaned to Gateway Plaza Associates, LLC to
facilitate the Gateway Plaza project located at 401 E. State /MLK Street with repayments
earmarked by the City of Ithaca Common Council for affordable housing activities, and
32. Whereas, the Gateway loan was fully repaid in 2007, and
33. Whereas, the balance of "Gateway" proceeds is approximately $595,600 as of June 30,
2010, of which $100,000 has been earmarked as a contribution to the Housing Fund, and
34. Whereas, the Plantations Building project includes affordable housing, and
35. Whereas, use of "Gateway" proceeds requires approval from the City of Ithaca Common
Council, and
36. WHEREAS, on July 13, 2010, the IURA Economic Development Committee reviewed this
matter and recommended the following action subject to City of Ithaca Common Council
approval; now, therefore, be it
1. RESOLVED, that the IURA hereby approves, subject to approval by the City of Ithaca
Common Council, a loan to Plantation Building LLC in accordance with the loan application
and the following terms:
Borrower: Plantation Building LLC, a NYS Limited Liability Company
formed in 2009
Loan Amount: Up to $490,000, not to exceed 100% of collateral value
Project: Bridge loan for redevelopment of the Plantations
Building at 130 -132 E. State /MLK Street, Ithaca, NY
Source of Loan Funds: "Gateway" proceeds
Projected Use of Funds: Construction phase project expenses
Term: Up to 8 months
Interest Rate: 3.5%
Repayment: The loan shall be repaid from Restore NY grant funds
disbursed by the Empire State Development Corporation
to the City of Ithaca.
M
Monthly interest -only payments shall be accrued.
Repayment of the loan balance plus accrued interest is
due upon receipt by the City of Ithaca of Restore NY
grant funds or maturity of the loan, whichever is earlier.
Collateral: • 2nd mortgage on the property and building owned by
ItalThai LLC located at 622 Cascadilla Street, Ithaca, NY
(ZaZa's Cucina restaurant building), behind only a 1"
mortgage held by M &T Bank with a balance of
$440,000.
• 2nd mortgage on property and building owned by Sunit
Chutintaranond and Flaminia Cervesi located at 20
Rosina Drive, Ithaca, NY (residence), behind mortgages
held by M &T Bank with a balance of $428,000.
Guarantor(s): • Sunit Chutintaranond and Flaminia Cervesi, each
individually.
• Corporate guarantee of ItalThai LLC
• Corporate guarantee of Za Za's Cucina, Inc.
2. RESOLVED, that the IURA hereby recommends City of Ithaca Common Council approval of
the use of Gateway proceeds to fund this bridge loan, and be it further
3. RESOLVED, that upon approval by the City of Ithaca Common Council, the Director of
Community Development for the IURA is authorized to issue a loan commitment in
accordance with this resolution, and be it further
4. RESOLVED, that IURA Chair, upon the advise of the Executive Director and IURA Attorney, is
hereby authorized to execute all necessary and appropriate documents to implement this
resolution, including, but not limited to, executing loan agreement documents.
Vote:
Dylla — Aye
Armstrong — Aye
Ackerman — Aye
Tegan — Aye
Carried Unanimously (4 -0)
j: \staff\nels \nelsl \iura \loans \other \gateway \lex bridge loan plantations building \reso iura edc bridge loan plantations building 7- 13- 10.doc
13. Department of Public Works
.1 Request to Approve Funding Match for TIGER II Grant Application
WHEREAS, the United States Department of Transportation (USDOT) has announced the
availability of funds in the TIGER 11 Discretionary Grants (TIGER II) program, which notice
was published in the Federal Register on June 1, 2010, and
WHEREAS, Common Council is interested in applying for a TIGER II grant so as to make a
large investment in the transportation system in the central business district in order to maintain a
state of good repair, to make the downtown a more livable and sustainable environment, to
strengthen the City of Ithaca's position as a hub for the county and region, and to encourage and
support economic activity in the City, and
WHEREAS, staff from the Office of the City Engineer and the Department of Planning and
Development have begun scoping a grant eligible project to include, but not be limited to, the
following components:
• Rehabilitation of the Commons Pedestrian Street
• Partnering with Tompkins Consolidated Area Transit (TCAT) to procure and install a
Real Time Passenger Information System for TCAT busses and the TCAT bus stops at
Green St. and Seneca St.
• Partnering with NYSDOT to reconstruct Seneca Street and portions of Green Street
(between East State Street and Route 13) with the ultimate intention of taking ownership
of these streets in exchange for the State taking ownership of the Elmira Road section of
Route 13 that the City currently owns. .
• Partnering with Cornell University to rehabilitate the Cascadilla Creek Gorge Trail
between Linn Street and College Avenue so that it can be reopened to the public.
• Accessibility improvements in the downtown, particularly sidewalk curb ramp
improvements
• Installation of bicycle racks, bicycle lockers, wayfinding signage, and electric vehicle
plug -in stations in the downtown, now, therefore be it
RESOLVED, That the Mayor of the City of Ithaca, or her designee, is hereby authorized and
directed to submit a TIGER II application for funding to the United States Department of
Transportation in accordance with the provisions of the Notice of Funds Available, in a amount
not to exceed $16,700,000, and upon approval of said request to enter into and execute a project
agreement with USDOT, or its designee, for such financial assistance to the City of Ithaca for
design, right -of -way acquisition, construction and construction inspection of the TIGER II
application as submitted by the Mayor and approved by USDOT, and be it further
RESOLVED, That Common Council hereby makes a commitment of funds, contingent upon an
award of funds from the TIGER II program and environmental review, in an amount not to
exceed 20% of the total project costs, i.e., in an amount not to exceed $3,340,000, which funds
will be derived from serial bonds.
JA\DRedsicker\AGENDAS \City Admin Comm\2010 \7 -28 CA Agenda.doc 7/28/10
16. Finance /Controller's Office
.1 Approval of 2008 Single Audit Report
RESOLVED, That the Independent Auditor's Report for the period of January 1, 2008 through
December 31, 2008 prepared by the accounting firm of Ciaschi, Dietershagen, Little and
Mickelson & Company, LLP be accepted to comply with all the City's applicable Governmental
Accounting Standards Board (GASB) Statement 34 and other related audit and single audit
requirements.
J:\DRedsicker \AGENDAS \City Admin Comm\2010 \7 -28 CA Agenda.doc 7/28/10
16. Finance /Controller's Office
.2 Authorization to Contribute to the Reserves of the Greater Tompkins County Municipal
Health Insurance Consortium
WHEREAS, the City of Ithaca shall join the Greater Tompkins County Municipal Health
Insurance Consortium for the purpose of providing employee health insurance and prescription
drug coverage, and
WHEREAS, the Consortium, as required by the New York State Insurance Department, must
establish sufficient financial reserves to begin working as a consortium, now, therefore be it
RESOLVED, that the City of Ithaca shall contribute as listed as Estimated Initial Capitalization
in the following table:
Explanation: Four municipalities - the Towns of Ithaca, Caroline, Danby, and Dryden, are able to contribute a greater
amount in reserve than what is owed for their municipal shares. It is anticipated that by the year 2013, the four
municipalities will be "paid back" with 3% interest by the Consortium.
Reserves Due by the County and City shall be paid in 2012.
and be it further
RESOLVED, That the City Controller is authorized to make payment immediately to the
Consortium.
7:\ Redsicker\AG1✓NDAS \City Admin Comm\2010 \7 -28 CA Agenda.doc 7/28/10
Percent of
Estimated
Total
Reserves
2010 Premium
Total
Initial
Reserves
Due
Premium
Capitalization
County
13,351,312
54.55%
500,000
667,566
167,566
City of Ithaca
8,558,874
34.97%
300,000
427,944
127,944
Town of Ithaca
888,082
3.63%
137,033
44,404
- 92,629
Town of Caroline
122,633
0.50%
37,000
6,132
- 30,868
Town of Danby
81,161
0.33%
62,000
4,058
- 57,942
Town of Dryden
459,233
1.88%
137,032
22,962
- 114,070
Town of Enfield
50,400
0.21%
2,520
2,520
0
Town of Groton
126,095
0.52%
6,305
6,305
0
Town of Ulysses
113,175
0.46%
5,659
5,659
0
Village of Cayuga Heights
360,799
1.47%
18,040
18,040
0
Village of Dryden
121,349
0.50%
6,067
6,067
0
Village of Groton
150,900
0.62%
7,545
7,545
0
Village of Tiumansburg
90,696
0.37%
4,535
4,535
0
24,474,709
100.00%
1,223,736
1,223,735
0
Explanation: Four municipalities - the Towns of Ithaca, Caroline, Danby, and Dryden, are able to contribute a greater
amount in reserve than what is owed for their municipal shares. It is anticipated that by the year 2013, the four
municipalities will be "paid back" with 3% interest by the Consortium.
Reserves Due by the County and City shall be paid in 2012.
and be it further
RESOLVED, That the City Controller is authorized to make payment immediately to the
Consortium.
7:\ Redsicker\AG1✓NDAS \City Admin Comm\2010 \7 -28 CA Agenda.doc 7/28/10
16. Finance /Controller's Office
.3 Authorization to Enter into an Agreement with the Greater Tompkins County
Municipal Health Insurance Consortium
WHEREAS, the Tompkins County Council of Governments ( TCCOG) is comprised of all the
municipalities in Tompkins County, and
WHEREAS, the City of Ithaca is a member of the Tompkins County Council of Governments
( TCCOG), and
WHEREAS, in 2007 the County, on behalf of TCCOG accepted an incentive grant award under
the New York State Shared Municipal Services Program to assist the municipalities in Tompkins
County to create a local municipal health care consortium, and
WHEREAS, the Greater Tompkins County Municipal Health Insurance Consortium will develop
health benefits coverage for all participating municipalities with the intent to provide a net
savings to the taxpayers of Tompkins County, a goal of the City of Ithaca supports, and
WHEREAS, health care costs for Tompkins County and other local governments have been
increasing each year at rates much higher than inflation, a problem which can be addressed by
pooling our buying power, and
WHEREAS, Council gave authorization for approval of the inter - municipal agreement at its
meeting on April 7, 2010, but due to delays in the approval of the consortium, the agreement was
never signed, and
WHEREAS, some recent minor changes were necessary to the inter - municipal agreement to
satisfy the New York State Insurance Department, and
WHEREAS, TCCOG encourages the signing of the revised inter - municipal agreement by
TCCOG members; now, therefore be it
RESOLVED, That subject to the approval of the City Attorney, Common Council hereby
authorizes the Mayor to execute the inter - municipal agreement effective October 1, 2010 with
the Greater Tompkins County Health Insurance Consortium for the New York State Shared
Municipal Services Program.
J:\DRedsieker\AGENDAS \City Admin Comm\201.0 \7 -28 CA Agenda.doc 7/28/10
DRAFT -- 7/20/10
MUNICIPAL COOPERATION AGREEMENT
THIS AGREEMENT (the "Agreement ") made effective as of 1St day of January 2010
(the "Effective Date "), by and among each of the signatory municipal corporations hereto
(collectively, the "Participants ").
WHEREAS:
1. Article 5 -G of the New York General Municipal Law (the "General Municipal
Law ") authorizes municipal corporations to enter into cooperative agreements for the
performance of those functions or activities in which they could engage individually;
2. Sections 92 -a and 119 -o of the General Municipal Law authorize municipalities to
purchase a single health insurance policy, enter into group health plans, and establish a joint
body to administer a health plan;
3. Article 47 of the New York Insurance Law (the "Insurance Law "), and the rules
and regulations of the New York State Superintendent of Insurance (the "Superintendent ") set
forth certain requirements for governing self - insured municipal cooperative health insurance
plans;
4. Section 4702(f) of the Insurance Law defines the term "municipal corporation" to
include a county, city, town, village, school district, board of cooperative educational services,
public library (as defined in Section 253 of the New York State Education Law) and district (as
defined in Section 119 -n of the General Municipal Law); and
5. The Participants have determined to their individual satisfaction that furnishing
the health benefits (including, but not limited to, medical, surgical, hospital, prescription drug,
dental, and /or vision) for their eligible officers, eligible employees (as defined by the Internal
Revenue Code of 1986, as amended, and the Internal Revenue Service rules and regulations),
eligible retirees, and the eligible dependents of eligible officers, employees and retirees
(collectively, the "Enrollees ") (such defmition does not include independent contractors and/or
consultants) through a municipal cooperative is in their best interests as it is more cost- effective
and efficient. Eligibility requirements shall be determined by each Participant's collective
bargaining agreements and /or their personnel policies and procedures.
NOW, THEREFORE, the parties agree as follows:
A. PARTICIPANTS.
1. The Participants hereby designate themselves under this Agreement as the Greater
Tompkins County Municipal Health Insurance Consortium (the "Consortium ") for the purpose of
providing health benefits (medical, surgical, hospital, prescription drug, dental, and/or vision) to
those Enrollees that each Participant individually elects to include in the Greater Tompkins
County Municipal Health Insurance Consortium Medical Plan(s) (the "Plan(s) ").
2. The following Participants shall comprise the initial membership of the
Consortium (a) County of Tompkins; (b) City of Ithaca; (c) Town of Enfield; (d) Town of
Caroline; (e) Town of Ithaca; (f) Town of Danby; (g) Town of Dryden; (h) Town of Ulysses; (i)
Village of Cayuga Heights; 0) Village of Groton; (k) Village of Dryden; (1) Village of
{H 1049320.11 }
DRAFT - 07/20/10
Trumansburg; (m) Town of Groton. Membership in the Consortium may be offered to any
municipal corporation within the geographical boundaries of the County of Tompkins; provided
however, in the sole discretion of the Board (as defined below), the applicant provides
satisfactory proof of its financial responsibility and is of the same type of municipal corporation
as the initial Participants. Notwithstanding anything to contrary set forth in this Agreement,
admission of new Participants shall not require amendment of this Section A(2). Membership
shall be subject to the terms and conditions set forth in this Agreement, any amendments hereto
and applicable law.
3. Participation in the Plan(s) by some, but not all, collective bargaining units or
employee groups of a Participant is not encouraged and shall not be permitted absent prior Board
approval. Further, after obtaining approval, any Participant which negotiates an alternative
health insurance plan offering other than the plan offerings of the Consortium with a collective
bargaining unit or employee group may be subject to a risk charge as determined by the Board.
4. Initial membership of additional participants shall become effective on the first
day of the Plan Year following the adoption by the Board of the resolution to accept a municipal
corporation as a Participant. Such municipal corporation must agree to continue as a Participant
for a minimum of three (3) years upon entry.
5. The Board, by a two- thirds (2/3) vote of the entire Board, may elect to permit a
municipal corporation which is not located in the geographical or political boundaries of the
County of Tompkins to become a Participant subject to satisfactory proof, as determined by the
Board, of such municipal corporation's financial responsibility. Such municipal corporation
must agree to continue as a Participant for a minimum of three (3) years upon entry.
6. A municipal corporation that was previously a Participant, but is no longer a
Participant, and which is otherwise eligible for membership in the Consortium, may apply for re-
entry after a minimum of three (3) years has passed since it was last a Participant. Such re -entry
shall be subject to the approval of two- thirds (2/3) of the entire Board. This re -entry waiting
period may be waived by the approval of two- thirds (2/3) of the entire Board. In order to re-
enter the Consortium, a municipal corporation employer must have satisfied in full all of its
outstanding financial obligations to the Consortium. A municipal corporation must agree to
continue as a Participant for a minimum of three (3) years upon re- entry.
B. PARTICIPANT LIABILITY.
1. The Participants shall share in the costs of, and assume the liabilities for benefits
(including medical, surgical, and hospital) provided under the Plan(s) to covered officers,
employees, retirees, and their dependents. Each Participant shall pay on demand such
Participant's share of any assessment or additional contribution ordered by the Board, as set forth
in Section L(4) of this Agreement. The pro rata share shall be based on the Participant's relative
"premium" contribution to the Plan(s) as a percentage of the aggregate "premium" contribution
to the Plan(s), as is appropriate based on the nature of the assessment or contribution.
2. New Participants (each a "New Participant ") who enter the Consortium may be
assessed a fee for additional financial costs above and beyond the premium contributions to the
Plan(s). Any such additional financial obligations and any related terms and conditions
associated with membership in the Consortium shall be determined by the Board, and shall be
disclosed to the New Participant prior to its admission.
{H1049320.1 1 } 2
DRAFT - 07/20/10
3. Each Participant shall be liable, on a pro rata basis, for any additional assessment
required in the event the Consortium funding falls below those levels required by the Insurance
law as follows:
a. In the event the Consortium does not have admitted assets (as defined in
Insurance Law § 107) at least equal to the aggregate of its liabilities, reserves and
minimum surplus required by the Insurance Law, the Board shall, within thirty (30) days,
order an assessment (an "Assessment Order ") for the amount that will provide sufficient
funds to remove such impairment and collect from each Participant a pro -rata share of
such assessed amount.
b. Each Participant that participated in the Consortium at any time during the
two (2) year period prior to the issuing of an Assessment Order by the Board shall, if
notified of such Assessment Order, pay its pro rata share of such assessment within ninety
(90) days after the issuance of such Assessment Order. This provision shall survive
termination of the Agreement of withdrawal of a Participant.
C. For purposes of this Section B(3), a Participant's pro -rata share of any
assessment shall be determined by applying the ratio of the total assessment to the total
contributions or premium equivalents earned during the period covered by the assessment
on all Participants subject to the assessment to the contribution or premium equivalent
earned during such period attributable to such Participant.
C. BOARD OF DIRECTORS.
1. The governing board of the Consortium, responsible for management, control and
administration of the Consortium and the Plan(s), shall be referred to as the "Board of Directors"
(the "Board "). The voting members of the Board shall be composed of one representative of
each Participant and representatives of the Joint Committee on Plan Structure and Design (as set
forth in Section C(11)), who shall have the authority to vote on any official action taken by the
Board (each a "Director "). Each Director, except the representatives of the Committee on Plan
Structure and Design, shall be designated in writing by the governing body of the Participant.
2. If a Director designated by a Participant cannot fulfill his/her obligations, for any
reason, as set forth herein, and the Participant desires to designate a new Director, it must notify
the Consortium's Chairperson in writing of its selection of a new designee to represent the
Participant as a Director.
3. Directors shall receive no remuneration from the Consortium for their service and
shall serve a term from January 1 through December 31 (the "Plan Year ").
4. No Director may represent more than one Participant.
5. No Director, or any member of a Director's immediate family shall be an owner,
officer, director, partner, or employee of any contractor or agency retained by the Consortium,
including any third party contract administrator.
6. Except as otherwise provided in Section D of the Agreement, each Director shall
be entitled to one vote. A majority of the entire Board, not simply those present, is required for
the Board to take any official action, unless otherwise specified in this Agreement. The "entire
Board ", as used herein and elsewhere in this Agreement, shall mean the total number of
Directors when there are no vacancies.
fHI049320.1 1 }
DRAFT - 07/20/10
7. Each Participant may designate in writing an alternate Director to attend the
Board's meeting when its Director cannot attend. The alternate Director may participate in the
discussions at the Board meeting and will, if so designated in writing by the Participant, be
authorized to exercise the Participant's voting authority. Only alternate Directors with voting
authority shall be counted toward a quorum. The Joint Committee on Plan Structure and Design
may designate alternate Directors as set forth in Section C(11).
8. A majority of the Directors of the Board shall constitute a quorum. A quorum is a
simple majority (more than half) of the entire Board. A quorum is required for the Board to
conduct any business. This quorum requirement is independent of the voting requirements set
forth in Section C(6). The Board shall meet on a regular basis, but not less than on a quarterly
basis at a time and place within the State of New York determined by a vote of the Board. The
Board shall hold an annual meeting (the "Annual Meeting ") between October 3rd and October
15th of each Plan Year.
9. Special meetings of the Board may be called at any time by the Chairperson or by
any two (2) Directors. Whenever practicable, the person or persons calling such special meeting
shall give at least three (3) day notice to all of the other Directors. Such notice shall set forth the
time and place of the special meeting as well as a detailed agenda of the matters proposed to be
acted upon. In the event three (3) days notice cannot be given, each Director shall be given such
notice as is practicable under the circumstances.
10. In the event that a special meeting is impractical due to the nature and/or urgency
of any action which, in the opinion of the Chairperson, is necessary or advisable to be taken on
behalf of the Consortium, the Chairperson may send proposals regarding said actions via
facsimile to each and all of the Directors. The Directors may then fax their approval or
disapproval of said actions to the Chairperson. Upon receipt by the Chairperson of the requisite
number of written approvals, the Chairperson may act on behalf of the Board in reliance upon
such approvals. Any actions taken by the Chairperson pursuant to this paragraph shall be ratified
at the next scheduled meeting of the Board.
11. The Chair of the Joint Committee on Plan Structure and Design and the at -large
voting Labor Member(s) (as defined in Section K) shall serve as Directors (the "Labor
Representatives ") and shall have the same rights and obligations as all other Directors. The Joint
Committee on Plan Structure and Design may designate in writing alternate Directors to attend
the Board's meetings when the Labor Representatives cannot attend. The alternate Director
may, if designated in writing, be authorized to exercise the Labor Representatives' voting
authority.
D. WEIGHTED VOTING.
1. Except as otherwise provided in this Agreement, any two or more Directors,
acting jointly, may require a weighted vote on any matter that may come before the Board. In
such event, the voting procedure set forth in this Section D shall apply in lieu of any other voting
procedures set forth in this Agreement. Such weighted voting procedures shall apply solely with
respect to the matter then before the Board.
2. For purposes of this Section D, each Director shall receive votes as follows:
(1-1 1 049 3 2 0.11) 4
DRAFT - 07/20/10
a. each Director representing a Participant with five hundred (500) or fewer
Enrollees shall be entitled to one (1) vote.
b. each Director representing a Participant with more than five hundred (500)
Enrollees shall be entitled to a number of votes equaling the total number of votes
assigned under subsection 2(a) above minus one (1), divided evenly by the number of
Participants eligible under this subsection 2(b) and rounded down to the nearest whole
number.
C. the Labor Representative shall be entitled to one (1) vote.
3. Attached as Addendum "A" to this Agreement is an example of the application of
the voting formula contained in subparagraph "2" of this Section.
4. Notwithstanding anything to the contrary contained in this Agreement, any action
taken pursuant to this Section D shall require the approval of two- thirds (2/3) of the total number
of votes, if all votes had been cast.
E. ACTIONS BY THE BOARD.
Subject to the voting and quorum requirements set forth in this Agreement, the Board is
authorized and/or required to take action on the following matters:
1. To fill any vacancy in any of the officers of the Consortium.
2. To fix the frequency, time and place of regular Board meetings.
3. To approve an annual budget for the Consortium, which shall be prepared and
approved prior to October 15th of each year, and determine the annual premium equivalent rates
to be paid by each Participant for each Enrollee classification in the Plan on the basis of a
community rating methodology filed with and approved by the Superintendent.
4. To audit receipts and disbursements of the Consortium and provide for
independent audits, and periodic financial and operational reports to Participants.
5. To establish a joint fund or funds to finance all Consortium expenditures,
including claims, reserves, surplus, administration, stop -loss insurance and other expenses.
6. To select and approve the benefits provided by the Plan(s) including the plan
document(s), insurance certificate(s), and /or summary plan description(s), a copy of the Plan(s)
effective on the date of this Agreement is incorporated by reference into this Agreement.
7. To annually select a plan consultant (the "Plan Consultant ") for the upcoming Plan
Year, prior to October 1St of each year.
8. To review, consider and act on any recommendations made by the Plan
Consultant.
9. To establish administrative guidelines for the efficient operation of the Plan.
10. To establish financial regulations for the entry of new Participants into the
Consortium consistent with all applicable legal requirements and this Agreement.
{H1049320.11 }
DRAFT - 07/20/10
11. To contract with third parties, which may include one or more Participants, for the
furnishing of all goods and services reasonably needed in the efficient operation and
administration of the Consortium, including, without limitation, accounting services, legal
counsel, contract administration services, consulting services, purchase of insurances and
actuarial services. Provided, however (a) the charges, fees and other compensation for any
contracted services shall be clearly stated in written administrative services contracts, as required
in Section 92 -a(6) of the General Municipal Law; (b) payment for contracted services shall be
made only after such services are rendered; (c) no Director or any member of such Director's
immediate family shall be an owner, officer, director, partner or employee of any contract
administrator retained by the Consortium; and (d) all such agreements shall otherwise comply
with the requirements of Section 92 -a(6) of the General Municipal Law.
12. To purchase stop -loss insurance on behalf of the Consortium and determine each
year the insurance carrier or carriers who are to provide the stop - loss insurance coverage during
the next Plan Year, as required by Section 4707 of the Insurance Law.
13. To determine and notify each Participant prior to October 15th of each Plan Year
of the monthly premium equivalent for each enrollee classification during the next Plan Year
commencing the following January 1St
14. To designate the banks or trust companies in which joint funds, including reserve
funds, are to be deposited and which shall be located in this state, duly chartered under federal
law or the laws of this state and insured by the Federal Deposit Insurance Corporation, or any
successor thereto.
15. To designate annually a treasurer (the "Treasurer ") who may or may not be a
Director and who shall be the treasurer, or equivalent financial officer, for one of the
Participants. The Treasurer's duties shall be determined by the Chief Fiscal Officer to whom
he /she will report.
16. To designate an Officer or Director to retain custody of all reports, statements and
other documents of the Consortium and take minutes of each Board meeting which shall be acted
on by the Board at a subsequent meeting.
17. To choose the certified public accountant and the actuary to provide the reports
required by this Agreement and any applicable law.
18. To designate an attorney -in -fact to receive summons or other legal process in any
action, suit or proceeding arising out of any contract, agreement or transaction involving the
Consortium. The Board designates John G. Powers, Esq. as the Consortium's initial attorney -in-
fact.
19. To take all necessary action to ensure that the Consortium obtains and maintains a
Certificate of Authority in accordance with the Insurance Law.
20. To take all necessary action to ensure the Consortium is operated and
administered in accordance with the law of the State of New York.
21. To take any other action authorized by law and deemed necessary to accomplish
the purposes of this Agreement.
{H 1049320.11 } 6
DRAFT - 07/20/10
F. EXECUTIVE COMMITTEE.
1. The Executive Committee of the Consortium shall consist of the Chairperson, the
Vice - Chairperson, and the Chief Fiscal Officer of the Consortium.
2. The Executive Committee may meet at anytime between meetings of the Board,
at the discretion of the Chairperson. The Executive Committee shall make recommendations to
the Board.
3. The Executive Committee shall manage the Consortium between meetings of the
Board, subject to such approval by the Board as may be required by this Agreement.
G. OFFICERS.
1. At the Annual Meeting, the Board shall elect from its Directors a Chairperson,
Vice Chairperson, Chief Fiscal Officer, and Secretary, who shall serve for a term of one (1) year
or until their successors are elected and qualified. Any vacancy in an officer's position shall be
filled at the next meeting of the Board.
2. Officers of the Consortium and employees of any third party vendor, including
without limitation the officers and employees of any Participant, who assist or participate in the
operation of the Consortium, shall not be deemed employees of the Consortium. Each third
party vendor shall provide for all necessary services and materials pursuant to annual contracts
with the Consortium. The officers of the Consortium shall serve without compensation from the
Consortium, but may be reimbursed for reasonable out -of- pocket expenses incurred in
connection with the performance of such officers' duties.
3. Officers shall serve at the pleasure of the Board and may be removed or replaced
upon a two- thirds (2/3) vote of the entire Board. This provision shall not be subject to the
weighted voting alternative set forth in Section D.
H. CHAIRPERSON; VICE CHAIRPERSON.
The Chairperson shall be the chief executive officer of the Consortium.
2. The Chairperson, or in the absence of the Chairperson, the Vice Chairperson,
shall preside at all meetings of the Board.
3. In the absence of the Chairperson, the Vice Chairperson shall perform all duties
related to that office.
Y. PLAN ADMINISTRATOR.
The Board, by a two- thirds (2/3) vote of the entire Board, may annually designate an
administrator and/or insurance company of the Plan (the "Plan Administrator ") and the other
provider(s) who are deemed by the Board to be qualified to receive, investigate, and recommend
or make payment of claims, provided that the charges, fees and other compensation for any
contracted services shall be clearly stated in written administrative services and/or insurance
contracts and payment for such contracted services shall be made only after such services are
rendered or are reasonably expected to be rendered. All such contracts shall conform to the
requirements of Section 92 -a(6) of the General Municipal Law.
(H 1049320.11) 7
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J. CHIEF FISCAL, OFFICER.
1. The Chief Fiscal Officer shall act as the chief financial administrator of the
Consortium and disbursing agent for all payments made by the Consortium, and shall have
custody of all monies either received or expended by the Consortium. The Chief Fiscal Officer
shall be a fiscal officer of a Participant. The Chief Fiscal Officer shall receive no remuneration
from the Consortium. The Plan shall reimburse the Participant that employs the Chief Fiscal
Officer for reasonable and necessary out -of- pocket expenses incurred by the Chief Fiscal Officer
in connection with the performance of his or her duties that relate to the Consortium.
2. All monies collected by the Chief Fiscal Officer relating to the Consortium, shall
be maintained and administered as a common fund. The Chief Fiscal Officer shall,
notwithstanding the provisions of the General Municipal Law, make payment in accordance with
procedures developed by the Board and as deemed acceptable to the Superintendent.
3. The Chief Fiscal Officer shall be bonded for all monies received from the
Participants. The amount of such bond shall be established annually by the Consortium in such
monies and principal amount as may be required by the Superintendent.
4. All monies collected from the Participants by the Chief Fiscal Officer in
connection with the Consortium shall be deposited in accordance with the policies of the
Participant which regularly employs the Chief Fiscal Officer and shall be subject to the
provisions of law governing the deposit of municipal funds.
5. The Chief Fiscal Officer may invest moneys not required for immediate
expenditure in the types of investments specified in the General Municipal Law for temporary
investments or as otherwise expressly permitted by the Superintendent.
6. The Chief Fiscal Officer shall account for the Consortium's reserve funds separate
and apart from all other funds of the Consortium, and such accounting shall show:
a. the purpose, source, date and amount of each sum paid into the fund;
b. the interest earned by such funds;
C. capital gains or losses resulting from the sale of investments of the Plan's
reserve funds;
d. the order, purpose, date and amount of each payment from the reserve
fund; and
C. the assets of the fund, indicating cash balance and schedule of
investments.
7. The Chief Fiscal Officer shall cause to be prepared and shall furnish to the Board,
to participating municipal corporations, to unions which are the exclusive bargaining
representatives of Enrollees, the Board's consultants, and to the Superintendent:
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DRAFT - 07/20/10
a. an annual audit, and opinions thereon, by an independent certified public
accountant, of the financial condition, accounting procedures and internal control systems
of the municipal cooperative health benefit plan;
b. an annual report and quarterly reports describing the Consortium's current
financial status; and
C. an annual independent actuarial opinion on the financial soundness of the
Consortium, including the actuarial soundness of contribution or premium equivalent
rates and reserves, both as paid in the current Plan Year and projected for the next Plan
Year.
8. Within ninety (90) days after the end of each Plan Year, the Chief Fiscal Officer
shall furnish to the Board a detailed report of the operations and condition of the Consortium's
reserve funds.
K. JOINT COMMITTEE ON PLAN STRUCTURE AND DESIGN.
1. There shall be a Joint Committee on Plan Structure and Design (the "Joint
Committee "), which shall consist of (a) a representative of each collective bargaining unit that is
the exclusive collective bargaining representative of any Enrollee or group of Enrollees covered
by the Plan(s) (the "Union Members "); and (b) a representative of each Participant (the
"Management Members "). Management Members may, but are not required to be, Directors.
2. The Joint Committee shall review all prospective Board actions in connection
with the benefit structure and design of the Plan(s), and shall develop findings and
recommendations with respect to such matters. The Chair of the Joint Committee shall report
such findings and recommendations to the Board at any regular or special meeting of the Board.
3. The Joint Committee shall select (a) from among the Union Members, an
individual who shall serve as Chair of the Joint Committee; and (b) from among the
Management Members, an individual who shall serve as Vice Chair of the Joint Committee. The
Joint Committee shall establish its own parliamentary rules and procedures.
4. Each eligible union shall establish such procedures by which its representative to the
Joint Committee is chosen and such representative shall be designated in writing to the
Chairperson of the Board and the Chair of the Joint Committee.
5. The Union Members on the Joint Committee shall select from among the Union
Members an individual to serve as an additional at -large voting Labor Member on the Board of
Directors of the Consortium. If the number of municipal members on the Consortium rises to
seventeen (17), the union members of the Joint Committee shall select from among the Union
Members an additional at -large voting Labor Member on the Board of Directors of the
Consortium. The at -large voting Labor Member(s) along with the Joint Committee Chair shall
collectively be the "Labor Representatives" as defined in Section C(11) of this Agreement.
L. PREMIUM CALCULATIONS/PAYMENT.
1. The annual premium equivalent rates shall be established and approved by a
majority of the entire Board. The method used for the development of the premium equivalent
rates may be changed from time to time by the approval of two- thirds (2/3) of the entire Board,
subject to review and approval by the Superintendent. The premium equivalent rates shall
DRAFT - 07/20/10
consist of such rates and categories of benefits as is set forth in the Plan[s] that is determined and
approved by the Board consistent with New York law.
2. The Consortium shall maintain reserves and stop -loss insurance to the level and
extent required by the Insurance Law and as directed by the Superintendent.
3. Each Participant's monthly premium equivalent, by enrollee classification, shall
be paid by the first day of each calendar month during the Plan Year. A late payment charge of
one percent (1 %) of the monthly installment then due will be charged by the Board for any
payment not received by the first of each month, or the next business day when the first falls on a
Saturday, Sunday, legal holiday or day observed as a legal holiday by the Participants.
The Consortium may waive the first penalty once per Plan Year for each Participant, but
will strictly enforce the penalty thereafter. A repeated failure to make timely payments, including
any applicable penalties, may be used by the Board as an adequate justification for the expulsion
of the Participant from the Consortium.
4. The Board shall assess Participants for additional contributions, if actual and
anticipated losses due to benefits paid out, administrative expenses, and reserve and surplus
requirements exceed the amount in the joint funds, as set forth in Section B(3) above.
5. The Board, in its sole discretion, may refund amounts in excess of reserves and
surplus, or retain such excess amounts and apply these amounts as an offset to amounts projected
to be paid under the next Plan Year's budget.
M. EMPLOYEE CONTRIBUTIONS.
If any Participant requires an Enrollee's contribution for benefits provided by the Consortium,
the Participant shall collect such contributions at such time and in such amounts as it requires.
However, the failure of a Participant to receive the Enrollee contribution on time shall not
diminish or delay the payment of the Participant's monthly premium equivalent to the
Consortium, as set forth in this Agreement.
N. ADDITIONAL BENEFITS.
Any Participant choosing to provide more benefits, coverages, or enrollment eligibility other
than that provided under the Plan(s), will do so at its sole expense. This Agreement shall not be
deemed to diminish such Participant's benefits, coverages or enrollment eligibility, the additional
benefits and the payment for such additional benefits, shall not be part of the Plan(s) and shall be
administered solely by and at the expense of the Participant.
O. REPORTING.
The Board, through its officers, agents, or delegatees, shall ensure that the follow reports are
prepared and submitted:
1. Annually after the close of the Plan Year, not later than one - hundred twenty (120)
days after the close of the Plan Year, the Board shall file a report with the Superintendent
showing the financial condition and affairs of the Consortium, including an annual independent
(H1049320.1 11 10
DRAFT - 07/20/10
financial audit statement and independent actuarial opinion, as of the end of the preceding plan
year.
2. Annually after the close of the Plan Year, the Board shall have prepared a
statement and independent actuarial opinion on the financial soundness of the Plan, including the
contribution or premium equivalent rates and reserves, both as paid in the current Plan Year and
projected for the next Plan Year.
3. The Board shall file reports with the Superintendent describing the Consortium's
then current financial status within forty -five (45) days of the end of each quarter during the Plan
year.
4. The Board shall provide the annual report to all Participants and all unions, which
are the exclusive collective bargaining representatives of Enrollees, which shall be made
available for review to all Enrollees.
5. The Board shall submit to the Superintendent a report describing any material
changes in any information originally provided in the Certificate of Authority. Such reports, in
addition to the reports described above, shall be in such form, and containing such additional
content, as may be required by the Superintendent.
P. WITHDRAWAL OF PARTICIPANT.
1. Withdrawal of a Participant from the Consortium shall be effective only once
annually on the last day of the Plan Year.
2. Notice of intention of a Participant withdraw must be given in writing to the
Chairperson prior to October 3rd of each Plan Year. Failure to give such notice shall
automatically extend the Participant's membership and obligations under the Agreement for
another Plan Year, unless the Board shall consent to an earlier withdrawal by a two- thirds (2/3)
vote.
3. Any withdrawing Participant shall be responsible for its pro rata share of any Plan
deficit that exists on the date of the withdrawal, subject to the provisions of subsection "4" of this
Section. The withdrawing Participant shall be entitled to any pro rata share of surplus that exists
on the date of the withdrawal, subject to the provisions of subsection "4" of this Section. The
Consortium surplus or deficit shall be based on the sum of actual expenses and the estimated
liability of the Consortium as determined by the Board. These expenses and liabilities will be
determined one (1) year after the end of the Plan Year in which the Participant last participated.
4. The surplus or deficit shall include recognition and offset of any claims, expenses,
assets and /or penalties incurred at the time of withdrawal, but not yet paid. Such pro rata share
shall be based on the Participant's relative premium contribution to the Consortium as a
percentage of the aggregate premium contributions to the Consortium during the period of
participation. This percentage amount may then be applied to the surplus or deficit which existed
on the date of the Participant's withdrawal from the Consortium. Any pro rata surplus amount
due the Participant shall be paid to the Participant one year after the effective date of the
withdrawal. Any pro rata deficit amount shall be billed to the Participant by the Consortium one
year after the effective date of the withdrawal and shall be due and payable within thirty (30)
days after the date of such bill.
{H1049320.11 } 11
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Q. DISSOLUTION; RENEWAL,; EXPULSION.
1. The Board at any time, by a two- thirds (2/3) vote of the entire Board, may
determine that the Consortium shall be dissolved and terminated. If such determination is made,
the Consortium shall be dissolved ninety (90) days after written notice to the Participants.
a. Upon determination to dissolve the Consortium, the Board shall provide
notice of its determination to the Superintendent. The Board shall develop and submit to
the Superintendent for approval a plan for winding -up the Consortium's affairs in an
orderly manner designed to result in timely payment of all benefits.
b. Upon termination of this Agreement, or the Consortium, each Participant
shall be responsible for its pro rata share of any deficit or shall be entitled to any pro rata
share of surplus that exists, after the affairs of the Consortium are closed. No part of any
funds of the Consortium shall be subject to the claims of general creditors of any
Participant until all Consortium benefits and other Consortium obligations have been
satisfied. The Consortium's surplus or deficit shall be based on actual expenses. These
expenses will be determined one year after the end of the Plan Year in which this
Agreement or the Consortium terminates.
C. Any surplus or deficit shall include recognition of any claims /expenses
incurred at the time of termination, but not yet paid. Such pro rata share shall be based on
each Participant's relative premium contribution to the Plan as a percentage of the
aggregate premium contributions to the Plan during the period of participation. This
percentage amount would then be applied to the surplus or deficit which exists at the time
of termination.
2. The continuation of the Consortium under the terms and conditions of the
Agreement, or any amendments or restatement's thereto, shall be subject to Board review on the
fifth (5th) anniversary of the Effective Date and on each fifth (5th) anniversary date thereafter
(each a "Review Date ").
a. At the annual meeting a year prior to the Review Date, the Board shall
include as an agenda item a reminder of the Participants' coming obligation to review the
terms and conditions of the Agreement.
b. During the calendar year preceding the Review Date, each Participant
shall be responsible for independently conducting a review of the terms and conditions of
the Agreement and submitting to the Board of Directors a written resolution containing
any objection to the existing terms and conditions or any proposed modification or
amendment to the existing Agreement, such written resolution shall be submitted to the
Board on or before March 1 st preceding the Review Date. Failure to submit any such
resolution shall be deemed as each Participant's agreement and authorization to the
continuation of the Consortium until the next Review Date under the existing terms and
conditions of the Agreement.
C. As soon as practicable after March 1St, the Board shall circulate to all
Participants copies of all resolutions submitted by the Participants. Subject to Section S
hereof, any resolutions relating to the modification, amendment, or objection to the
Agreement submitted prior to each Review Date shall be considered and voted on by the
Participants at a special meeting called for such purpose. Such special meeting shall be
held on or before July 1St preceding the Review Date.
{H 1 049320.11 } 12
DRAFT - 07/20/10
d. Notwithstanding the foregoing or Section S hereof, if at the Annual
Meeting following any scheduled Review Date the Board votes on and approves the
budget and annual assessment for the next year, the Participants shall be deemed to have
approved the continuation of the Consortium under the existing Agreement until the next
Review Date.
3. The Participants acknowledge that it may be necessary in certain extraordinary
circumstances to expel a Participant from the Consortium. In the event the Board determines
that:
a. a Participant has acted inconsistently with the provisions of the Agreement
in a way that threatens the financial well -being or legal validity of the Consortium; or
b. a Participant has acted fraudulently or has otherwise acted in bad faith
with regards to the Consortium, or toward any individual Participant concerning matters
relating to the Consortium, the Board may vote to conditionally terminate said
Participant's membership in the Consortium. Upon such a finding by the affirmative vote
of seventy -five percent (75 %) of the Participants, the offending Participant shall be given
sixty (60) days to correct or cure the alleged wrongdoing to the satisfaction of the Board.
Upon the expiration of said sixty (60) day period, an absent satisfactory cure, to the
Board may expel the Participant by an affirmative vote of seventy -five percent (75 %) of
the Participants (exclusive of the Participant under consideration). This section shall not
be subject to the weighted voting provision provided in Section D. Any liabilities
associated with the Participant's departure from the Consortium under this provision shall
be determined by the procedures set forth in Section P of this Agreement.
R. REPRESENTATIONS AND WARRANTIES OF PARTICIPANTS.
Each Participant by its approval of the terms and conditions of this Agreement hereby represents
and warrants to each of the other Participants as follows:
1. The Participant understands and acknowledges that its participation in the
Consortium under the terms and conditions of this Agreement is strictly voluntary and may be
terminated as set forth herein, at the discretion of the Participant.
2. The Participant understands and acknowledges that the duly authorized decisions
of the Board constitute the collective will of each of the Participants as to those matters within
the scope of the Agreement.
3. The Participant understands and acknowledges that the decisions of the Board
made in the best interests of the Consortium may on occasion temporarily disadvantage one or
more of the individual Participants.
4. The Participant represents and warrants that its designated Director or authorized
representative understands the terms and conditions of this Agreement and is suitably
experienced to understand the principles upon which this Consortium operates.
5. The Participant understands and acknowledges that all Directors, or their
authorized representatives, are responsible for attending all scheduled meetings. Provided that
the quorum rules are satisfied, non - attendance at any scheduled meeting is deemed acquiescence
by the absent Participant to any duly authorized Board - approved action at the meeting. However,
a Participant that was absent from a meeting will not be presumed to have acquiesced in a
JH1049320.11) 13
DRAFT - 07/20/10
particular action taken at the meeting if, within fifteen (15) calendar days after learning of such
action, the Participant delivers written notice to the Chairperson that it dissents from such action.
The Participant shall also notify the other members of the Board of such dissent. The
Chairperson shall direct the Secretary to file the notice with the minutes of the Board.
6. The Participant understands and acknowledges that, absent bad faith or fraud, any
Participant's vote approving any Board action renders that Board action immune from later
challenge by that Participant.
S. RECORDS.
The Board shall have the custody of all records and documents, including financial records,
associated with the operation of the Consortium. Each Participant may request records and
documents relative to their participation in the Consortium by providing a written request to the
Chairperson and Chief Fiscal Officer. The Consortium shall respond to each request no later
than thirty (30) days after its receipt thereof, and shall include all information which can be
provided under applicable law.
T. CHANGES TO AGREEMENT.
Any change or amendment to this Agreement shall require the unanimous approval of the
Participants, as authorized by their respective legislative bodies.
U. CONFIDENTIALITY.
Nothing contained in this Agreement shall be construed to waive any right that a covered person
possesses under the Plan with respect to the confidentiality of medical records and that such
rights will only be waived upon the written consent of such covered person.
V. ALTERNATIVE DISPUTE RESOLUTION ("ADR").
1. General. The Participants acknowledge and agree that given their budgeting and
fiscal constraints, it is imperative that any disputes arising out of the operation of the Consortium
be limited and that any disputes which may arise be addressed as quickly as possible.
Accordingly, the Participants agree that the procedures set forth in this Section V are intended to
be the exclusive means through which disputes shall be resolved. The Participants also
acknowledge and agree that by executing this Agreement each Participant is limiting its right to
seek redress for certain types of disputes as hereinafter provided.
2. Disputes subject to AD R. Any dispute by any Participant arising out of or
relating to a contention that:
a. the Board, the Board's designated agents, or any Participant has failed to
adhere to the terms and conditions of this Agreement;
b. the Board, the Board's designated agents, or any Participant has acted in
bad faith or fraudulently in undertaking any duty or action under the Agreement; or
{H 1049320.11) 14
DRAFT - 07/20/10
C. any other dispute otherwise arising out of or relating to the terms or
conditions of this Agreement or requiring the interpretation of this Agreement shall be
resolved exclusively through the ADR procedure set forth in paragraph (3) below.
3. ADR Procedure. Any dispute subject to ADR, as described in subparagraph (2),
shall be resolved exclusively by the following procedure:
a. Board Consideration: Within ninety (90) days of the occurrence of any
dispute, the objecting party (the "Claimant ") shall submit a written notice of the dispute
to the Chairperson specifying in detail the nature of the dispute, the parties claimed to
have been involved, the specific conduct claimed, the basis under the Agreement for the
Participant's objection, the specific injury or damages claimed to have been caused by the
objectionable conduct to the extent then ascertainable, and the requested action or
resolution of the dispute. A dispute shall be deemed to have occurred on the date the
objecting party knew or reasonably should have known of the basis for the dispute.
(1) Within sixty (60) days of the submission of the written notice, the
Executive Committee shall, as necessary, request further information from the
Claimant, collect such other information from any other interested party or source,
form a recommendation as to whether the Claimant has a valid objection or claim,
and if so, recommend a fair resolution of said claim. During such period, each
party shall provide the other with any reasonably requested information within
such party's control. The Executive Committee shall present its recommendation
to the Board in writing, including any underlying facts, conclusions or support
upon which it is based, within such sixty (60) day period.
(ii) Within sixty (60) days of the submission of the Executive
Committee's recommended resolution of the dispute, the Board shall convene in a
special meeting to consider the dispute and the recommended resolution. The
Claimant and the Executive Committee shall each be entitled to present any
argument or material it deems pertinent to the matter before the Board. The Board
shall hold discussion and/or debate as appropriate on the dispute and may
question the Claimant and/or the Executive Committee on their respective
submissions. Pursuant to its regular procedures, the Board shall vote on whether
the Claimant has a valid claim, and if so, what the fair resolution should be. The
weighted voting procedure set forth in Section D shall not apply to this provision.
The Board's determination shall be deemed final subject to the Claimant's right to
arbitrate as set forth below.
b. Arbitration. The Claimant may challenge any Board decision under
subparagraph (V)(3)(a)(ii) by filing a demand for arbitration with the American
Arbitration Association within thirty (30) days of the Board's vote (a "Demand "). In the
event a Claimant shall fail to file a Demand within thirty (30) days, the Board's decision
shall automatically be deemed final and conclusive. In the event the Participant files a
timely Demand, the arbitrator or arbitration panel may consider the claim:
provided however;
(i) in no event may the arbitrator review any action taken by the
Board that occurred three (3) or more years prior to when the Chairperson
received notice of the claim; and
{H1049320.11 } 15
DRAFT - 07/20/10
(ii) in no event may the arbitrator award damages for any period that
precedes the date the Chairperson received notice of the claim by more than
twenty -four (24) months.
C. The Participants agree that the procedure set forth in this Section V shall
constitute their exclusive remedy for disputes within the scope of this Section.
W. MISCELLANEOUS PROVISIONS.
1. This instrument constitutes the entire Agreement of the Participants with respect
to the subject matter hereof, and contains the sole statement of the operating rules of the
Consortium. This instrument supersedes any previous Agreement, whether oral or written.
2. Each Participant will perform all other acts and execute and deliver all other
documents as may be necessary or appropriate to carry out the intended purposes of this
Agreement.
3. If any article, section, subdivision, paragraph, sentence, clause, phrase, provision
or portion of this Agreement shall for any reason be held or adjudged to be invalid or illegal or
unenforceable by any court of competent jurisdiction, such article, section, subdivision,
paragraph, sentence, clause, phrase, provision or portion so adjudged invalid, illegal or
unenforceable shall be deemed separate, distinct and independent and the remainder of this
Agreement shall be and remain in full force and effect and shall not be invalidated or rendered
illegal or unenforceable or otherwise affected by such holding or adjudication.
4. This Agreement shall be governed by and construed in accordance with the laws
of the State of New York. Any claims made under Section V(3)(b) except to the extent
otherwise limited therein, shall be governed by New York substantive law.
5. All notices to any party hereunder shall be in writing, signed by the parry giving
it, shall be sufficiently given or served if sent by registered or certified mail, return receipt
requested, hand delivery, or overnight courier service addressed to the parties at the address
designated by each party in writing. Notice shall be deemed given when transmitted.
6. This Agreement may be executed in two or more counterparts each of which
shall be deemed to be an original but all of which shall constitute the same Agreement and shall
become binding upon the undersigned upon delivery to the Chairperson of an executed copy of
this Agreement together with a certified copy of the resolution of the legislative body approving
this Agreement and authorizing its execution.
7. The provisions of Section V shall survive termination of this Agreement,
withdrawal or expulsion of a Participant, and /or dissolution of the Consortium.
8. Article and section headings in this Agreement are included for reference only
and shall not constitute part of this Agreement.
9. No findings or recommendations made by the Joint Committee on Plan Structure
and Design or by the Chair of the Joint Committee shall be considered a waiver of any
bargaining rights under any contract, law, rule, statute, or regulation.
{H1049320.11 } 16
DRAFT - 07/20/10
X. APPROVAL, RATIFICATION, AND EXECUTION.
1. As a condition precedent to execution of this Municipal Cooperative Agreement
and membership in the Consortium, each eligible municipal corporation desiring to be
Participant shall obtain legislative approval of the terms and conditions of this Agreement by the
municipality's governing body.
2. Prior to execution of this Agreement by a Participant, the Participant shall provide
the Chairperson with the resolution approving the municipality's participation in this
Consortium and expressly approving the terms and conditions of this Municipal Cooperative
Agreement. Each presented resolution shall be attached to and considered a part of this
Agreement.
3. By executing this Agreement, each signatory warrants that he /she has complied
with the approval and ratification requirements herein and is otherwise properly authorized to
bind the participating municipal corporation to the terms and conditions of this Agreement.
[Signature Pages Follow]
{H1049320.11 } 17
DRAFT - 07/20/10
IN WITNESS WHEREOF, the undersigned has caused this Agreement to be executed
as of the day and year first above written.
CITY OF ITHACA TOWN OF ENFIELD
By:
C
Mayor
COUNTY OF TomPKINS
Chair of the County Legislature
TOWN OF CAROLINE
By:
Town Supervisor
TOWN OF DANBY
By:
Town Supervisor
TOWN OF ULYSSES
By:
Town Supervisor
VILLAGE OF CAYUGA HEIGHTS
By:
Mayor
VILLAGE OF TRUMANSBURG
By:
Mayor
By:
Town Supervisor
TOWN OF GROTON
By:
Town Supervisor
TOWN OF ITHACA
By:
Town Supervisor
TOWN OF DRYDEN
By:
Town Supervisor
VILLAGE OF GROTON
By:
Mayor
VILLAGE OF DRYDEN
By:
Mayor
f H 1049320.11) 18
DRAFT - 07/20/10
Addendum "A"
Example of Weighted Voting Formula under Section D(2)
If 10 Participants have 500 or fewer enrollees each and 2 Participants have more than 500
enrollees each, under subparagraph "a" the 10 each get 1 vote. Under subparagraph "b" the 2
large Participants get 4 votes each, which is calculated by taking the total number of votes under
subparagraph "a" [10] subtracting 1, dividing by the number of eligible Participants under
subsection "b" [2], and rounding the result [4.5] down to the nearest whole number [4]. The
Labor Representative shall have 1 vote, irrespective of the votes available to the Participants.
{1-11049320.11 } 19