HomeMy WebLinkAbout10-21-15 City Administration Committee Meeting AgendaIf you have a disability that will require special arrangements to be made in order for you to fully participate in the meeting,
please contact the City Controller’s Office at 607-274-6576 at least 48 hours before the meeting.
CA Meeting
City Administration Committee
DATE: October 21, 2015
TIME: 5:30 pm
LOCATION: 3rd Floor, City
Hall, Council Chambers
AGENDA ITEMS
Item Voting
Item?
Presenter(s) Time
Allotted
Chair, Deb Mohlenhoff
1.Call To Order *Note: We will review the number of15 Min*
1.1 Agenda Review No cards received at the beginning of each
1.2 Review and Approval of Minutes Yes meeting and adjust time if needed.
Approval of September 2015 Minutes
1.3 Statements from the Public No
1.4 Statements from Employees No
1.5 Council Response No
2.City Administration, Human Resources, and Policy
2.1 DPW – Request to Amend Personnel RosterYes Mike Thorne, Supt. of DPW 10 Min
2.2 Fire - Safety Audit Corrective Action PlanYes Tom Parsons, Fire Chief 10 Min
2.3 Fire - Authorization to Enter Into PurchaseYes Tom Parsons, Fire Chief 10 Min
Agreement with H-GAC
2.4 Fire - Authorization to Enter Into Purchasing Yes Tom Parsons, Fire Chief 10 Min
Cooperative Agreements
2.5 Approval of City/Town Fire Contract Yes Ari Lavine, City Attorney and 10 Min
Steve Thayer, City Controller
2.6 Attorney - City-County Law Enforcement Yes Ari Lavine, City Attorney 20 Min
Consolidation
3.Finance, Budget, and Appropriations
3.1 DPW - Reclassification of Sidewalk ProgramYes Mike Thorne, Supt. of DPW 10 Min
Manager
3.2 Appointment of Provisional Deputy Chief Yes John Barber, Police Chief 10 Min
4.Performance Measures No
Nothing Submitted
5.Common Council
6.Meeting Wrap-up All 5 Min
7.1 Announcements No
7.2 Next Meeting Date: November 18th
7.3 Review Agenda Items for Next Meeting No
7.4 Adjourn Yes
(7:20 p.m.)
Committee Charge: The CA committee will:
Review financial and administrative issues pertaining to the City, along with items relating to the City of Ithaca workforce
environment, intergovernmental relations and human resources.
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2.City Administration, Human Resources, and Policy
.1 DPW – Request to Amend Personnel Roster
WHEREAS, the Department of Public Works is the largest department in the City of Ithaca, with a
complex funding and accounting structure including six (6) funds (General Fund, Water Fund, Sewer
Fund, Solid Waste Fund, Sidewalk Fund and Stormwater Fund) and 62 separate accounts throughout its
four divisions and an annual budget of $27 million, and
WHEREAS, the Department of Public Works receives various revenue streams from Water and Sewer
billings, Streets and Facilities billings, Newman Golf Course, and parking revenues, and from outside
sources such as the Consolidated Highway Improvement Program (CHIPS), and
WHEREAS, the Department of Public Works is currently supported by one Administrative Coordinator,
one Financial Clerk, and two Financial Management Assistants, with one open funded position, and
WHEREAS, the Superintendent of Public Works has identified the need for developing and
implementing consistent financial and accounting procedures within its four divisions for matters
concerning billing, budget preparation, cost tracking, cost reporting, payroll, and budget planning, and
has explored various options for accomplishing these goals, and
WHEREAS, the Superintendent of Public Works is recommending the creation of a Manager of Fiscal
Operations position as the most effective means of achieving these goals, and
WHEREAS, the Ithaca Civil Service Commission established the classification of Manager of Fiscal
Operations at their September 2, 2015 meeting; now, therefore be it
RESOLVED, That the Personnel Roster of the Department of Public Works be
amended as follows:
Add: One (1) Manager of Fiscal Operations
Delete: One (1) Fiscal Manager
and be it further
RESOLVED, That the position of Manager of Fiscal Operations shall be assigned to the managerial
compensation plan at salary grade 8, and be it further
RESOLVED, That for the sole purpose of determining days worked reportable to the New York State
and Local Employees’ Retirement System, the standard workday for this position shall be established at
eight (8) hours per day (forty (40) hours per week), and be it further
RESOLVED, That the funding for this change shall be derived from existing funds within
the Department of Public Works budget.
CITY OF ITHACA
108 East Green Street, Ithaca, New York 14850-6590
DEPARTMENT OF PUBLIC WORKS
Michael J. Thorne, P.E., Superintendent
Telephone: 607/274-6531 Fax: 607/274-6587
“An Equal Opportunity Employer with a commitment to workforce diversification.”
TO: Common Council
Svante Myrick
Steve Thayer
FROM: Michael J. Thorne, P.E.
Superintendent of Public Works
DATE: October 21, 2015
RE: Manager of Fiscal Operations Position for Department of Public Works
Dear Council Members,
In May of this year, I asked Common Council to vote on a resolution to replace one Financial
Management Assistant position in the Department of Public Works with the next higher level
position of Fiscal Manager. The request was made because management of the complex DPW
finances requires a person with a higher level of background and experience. In addition to
capital funds, the DPW has six funding sources and 62 operating accounts, many of which have
special rules and restrictions. The person hired for the position would be expected to create new
methods and procedures to bring order and consistency to the Department with regards to
budgeting, billing, payroll, financial planning, and cost tracking. Common Council voted to
approve the Fiscal Manager position.
Our recruitment effort for the Fiscal Manager position did not yield candidates with the skill sets
we are seeking. Working with Human Resources to re-evaluate the needs of the DPW and
expectations for the new position, we believe that the job requirements are above the level of
Fiscal Manager, and a new position should be created at the managerial level. The new position
would be titled Manager of Fiscal Operations, and would be assigned at managerial grade 8.
The Manager of Fiscal Operations will support all DPW divisions, and report directly to the
Superintendent of Public Works. The position will manage all financial aspects of the
Department, including establishing and implementing standardized procedures throughout the
Department, and will work closely with the Controller’s Office in doing so. Given DPW’s $27
million budget, I believe this position is a wise investment. Funding for the increased salary cost
of this position can be derived from within the current DPW budget.
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2.City Administration, Human Resources, and Policy
.2 Fire - Safety Audit Corrective Action Plan
WHEREAS the Office of the State Comptroller conducted an audit of certain aspects of the fire safety
inspection process used by various municipalities, including the City, and
WHEREAS the final audit report was issued on May 27, 2015, and contained four recommendations for
improvements to the City’s review, approval, and documentation of the fire plans, evacuation plans, and
fire drills required of certain property owners under the state Fire Code, and
WHEREAS General Municipal Law § 35 requires Common Council to approve a Corrective Action
Plan detailing how and when measures will be implemented to address the recommendations, and
WHEREAS the Fire Department has already taken corrective action to implement the recommendations
contained in the audit as detailed in the attached Correction Active Plan, and Council believes that such
actions effectively address the issues raised in the recommendations; now, therefore, be it
RESOLVED, That Council approves the Corrective Action Plan, and be it further
RESOLVED, That the City Clerk shall submit a copy of the Corrective Action Plan to the Office of the
State Comptroller, and shall maintain the plan on file for review by the public.
Corrective Action Plan
Unit Name: City of Ithaca
Audit Report Title: Fire Safety
Audit Report Number: S9-14-49
The City’s initial response to the audit (dated December 22, 2014) contained most of the
details of the corrective actions planned by the City. Now that the Office of the State
Comptroller has released the final audit report, the City has finalized its corrective action
plan. For each recommendation included in the audit report, the following is the
corrective action the City has taken to resolve any issues.
Audit Recommendation #1: Review and approve all fire plans and evacuation plans
in accordance with the Fire Code.
Implementation Plan of Action: The department’s inspectors were previously reviewing
fire safety and evacuation plans and will continue to do so, but as detailed in Audit
Recommendations #2 and #4, records of review and approval were not previously kept.
As detailed in the Implementation Plans for those recommendations, the software used by
the inspectors now requires the inspectors to enter information regarding the inspectors’
review of fire and evacuation plans, when such plans were reviewed and approved, and
whether such plans meet the requirements of the Fire Code.
Implementation Date: Prior to December 22, 2014.
Person Responsible for Implementation: C. Thomas Parsons, Fire Chief
Audit Recommendation #2: Keep documented evidence detailing when fire plans
and evacuation plans were reviewed and approved.
Implementation Plan of Action: We have already made the necessary changes to our
processes to record when fire safety and evacuation plans have been reviewed and
deemed acceptable. This was done by modifying our inspection software to require an
affirmation of compliance with the applicable sections covering fire safety and
evacuation plans. If there is no affirmation of compliance, a violation will be recorded in
an inspection report to the property or business owner.
Implementation Date: Prior to December 22, 2014.
Person Responsible for Implementation: C. Thomas Parsons, Fire Chief
Audit Recommendation #3: Determine whether the required number of drills are
conducted in accordance with the Fire Code and maintain documented evidence of
these reviews.
Implementation Plan of Action: We have already made the necessary changes to our
inspection software to require an affirmation of compliance with respect to whether
business and property owners are performing the required number of evacuation drills.
Buildings or business occupancies that are not performing the required number of
evacuation drills will be cited for non-compliance, and remediation plans will be required
to insure compliance.
Implementation Date: Prior to December 22, 2014.
Person Responsible for Implementation: C. Thomas Parsons, Fire Chief
Audit Recommendation #4: Ensure that buildings requiring a fire plan and
evacuation plan have plans that meet the minimum Fire Code requirements.
Implementation Plan of Action: The fire department’s inspectors have been reviewing
both fire safety and evacuation plans. However, they have not been indicating compliance
with each element required by law. A checklist has been created within the department’s
inspection software requiring confirmation by the inspectors that each element required
by the Fire Code is contained in both plans.
Implementation Date: Prior to December 22, 2014.
Person Responsible for Implementation: C. Thomas Parsons, Fire Chief
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2.City Administration, Human Resources, and Policy
.3 Fire - Authorization to Enter Into Purchase Agreement with H-GAC
WHEREAS, General Municipal Law 103 authorizes the City to purchase apparatus, materials,
equipment and supplies, including vehicles, and to contract for services related to the installation,
maintenance or repair of those items, through the use of contracts let by the United States or any agency
thereof, any state or any other political subdivision or district therein so long as the contract is let in a
manner that constitutes competitive bidding consistent with state law, and
WHEREAS, the Houston-Galveston Area Council (H-GAC), a political subdivision of the state of
Texas, issues public competitive bids and awards contracts for public safety, public works, and
communication products and services, which are made available to local governments nationwide
through HGAC Buy, and
WHEREAS, the Fire Department and Department of Public Works have identified lower prices on
certain products if purchased through HGAC, and
WHEREAS, H-GAC’s competitive bidding process is consistent with New York state law in that it
publicly advertises each contract and bid specifications, evaluates and selects the contract award based
on the lowest responsible bidder or best value standard; both methods are also authorized under New
York state law, and with specific regard to best value, was authorized within the City pursuant to Local
Law, and
WHEREAS, to purchase through H-GAC, Common Council must authorize the City’s entry into an
Inter-local Contract for Cooperative Purchasing, and there is no fee for entering into the agreement as
the service is supported thru administrative fees assessed to the contractors; now therefore be it
RESOLVED, That the Mayor is authorized, upon the consultation and advice of the City Attorney, to
sign the above referenced agreement between the City of Ithaca and H-GAC.
MEMORANDUM
To: Common Council
From: Tom Parsons, Fire Chief
Date: October 15, 2015
Re: Resolution H-GAC Purchasing Cooperative
Currently, the Ithaca Fire Department purchases equipment and vehicles through local
competitive bidding; through United States GSA Contracts; or through NYS procurement
contracts. Many of our most expensive pieces of equipment are purchased through a competitive
bid process. In 2013, NYS passed legislation that allows municipalities to “piggyback” onto
contracts “let by the United States or any agency thereof, any state or any other political
subdivision or district therein”. The purpose of the legislation is to provide an additional
procedure that local government entities may purchase equipment or services without the time
and administrative costs associated with local competitive bidding. I have attached a memo from
the NYS Comptroller regarding the “Piggyback Law” passed in 2013.
The resolution that I submitted for your consideration will allow the City of Ithaca to purchase
equipment, and certain types of vehicles through the Houston-Galveston Area Council (H-GAC).
The following is background on H-GAC:
The H-GAC is a regional council of governments operating under the laws of the State of
Texas and governed by a board comprised of 36 elected officials from the 13 county
region. The H-GAC Board awards all contracts, which can then be made available to
local governments nationwide thru HGACBuy.
HGACBuy is a unit of local government and a political subdivision of the State of Texas.
The HGACBuy Program is over 30 years old and specializes in high ticket, capital
intensive products and services that require technical, detailed specifications and
extensive professional skills to evaluate bid responses. HGACBuy offers equipment and
apparatus typically purchased by Emergency Services Departments and Public Works
Departments. All products offered through HGACBuy have been awarded by virtue of a
public competitive process and complies with the requirements of NYS GML 103.
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2. City Administration, Human Resources, and Policy
.4 Fire – Authorization to Enter Into Purchasing Cooperative Agreements
WHEREAS, General Municipal Law 103 authorizes the City to purchase apparatus, materials,
equipment and supplies, including vehicles, and to contract for services related to the installation,
maintenance or repair of those items, through the use of contracts let by the United States or any agency
thereof, any state or any other political subdivision or district therein so long as the contract is let in a
manner that constitutes competitive bidding consistent with state law, and
WHEREAS, City Departments have identified savings on certain products offered through purchase
cooperatives run by state political subdivisions (school districts, municipalities, etc.) issuing public
competitive bids and awarding contracts for various public safety, public works, communication
products and services, and other products, and which contracts are then made available to local
governments through membership in the cooperative, and
WHEREAS, to purchase through such purchasing cooperatives, the City must typically execute an
agreement to participate; and now therefore be it
RESOLVED, That the City’s purchasing policy be amended to authorize the Mayor, upon the
consultation and advice of the City Attorney and the City Controller, to enter into purchasing
cooperatives agreements with other governmental entities or political subdivisions, where there is no fee
to the City to become a member, and where the cooperatives and their underlying bidding procedures
meet the requirements of General Municipal Law 103.
1
-
STATE OF NEW YORK
OFFICE OF THE STATE COMPTROLLER
110 STATE STREET
ALBANY, NEW YORK 12236
November 2013
To: Chief Fiscal Officers
Subject: New “Piggybacking” Law - Exception to Competitive Bidding (Updated)
Please provide copies of this bulletin to others who may need this information.
Background
Effective August 1, 2012, a new subdivision 16 was added to General Municipal Law (GML) §
103 to authorize political subdivisions and districts therein to purchase apparatus, materials,
equipment and supplies, and to contract for services related to the installation, maintenance or
repair of those items, through the use of contracts let by the United States or any agency thereof,
any state or any other political subdivision or district therein. The contract must be made
available for use by other governmental entities.
This exception to GML § 103 (1), as originally enacted, provided that the contract must have
been let in a manner that constitutes competitive bidding consistent with state law. GML § 103
(16) was amended by chapter 497 of the Laws of 2013, to provide that the contract must be let
either to the lowest responsible bidder or on the basis of best value in a manner consistent with
GML § 103. The amendment to subdivision 16 became effective on November 13, 2013. GML
§ 103 (16), as amended, is scheduled to expire on August 1, 2017. Political subdivisions (other
than New York City) that wish to make procurements under GML § 103 (16) through the use of
a contract let on the basis of best value must have first authorized the use of best value for
awarding their own purchase contracts by local law, or in the case of district corporations (e.g.
fire districts), school districts and BOCES, rule, regulation, or resolution. This authorization
may be accomplished by the adoption of a single local law or single rule, regulation, or
resolution. The stated purpose of GML § 103 (16) is to reduce administrative and product cost,
and increase efficiencies.1
Many local governments have been approached by vendors offering goods and services under
other governmental contracts and, in some cases, vendors have asserted that the contract falls
within the exception in GML § 103 (16). It is the responsibility of local officials to review each
proposed procurement to determine, on advice of the local government’s counsel as appropriate,
whether the procurements falls within the exception. To assist local government officials in
undertaking this review, we offer the following guidance.
2
Three Prerequisites
There are three prerequisites that must be met in order for a procurement of apparatus, materials,
equipment and supplies, and related installation, repair and maintenance services, to fall within
this exception:
(1) The contract must have been let by the United States or any agency thereof, any state
or any other political subdivision or district therein. Therefore, there must be an
underlying contract let by one of the listed governmental entities. Contracts developed
for use by local governments that are let by private parties (e.g., a private company,
association or not-for-profit corporation is the party awarding the contract to the vendor),
and not by the United States or any agency thereof, any state or any other political
subdivision or district therein, would not fall within the exception. 2
The phrase “any state or other political subdivision or district therein” clearly includes
other states, and political subdivisions in other states. In our view, it also includes New
York State political subdivisions. Therefore, in addition to the current competitive
bidding exception for certain purchases through contracts of New York State counties
(County Law § 408-a; GML § 103 [3]), local governments also may purchase through
qualifying contracts let by other New York State political subdivisions under this
exception.
(2) The contract must have been made available for use by other governmental entities.
This means that the other governmental entity has taken steps to make its contract
available for New York local governments. In general, this would occur by inclusion in
the contract let by the other entity of a clause extending the terms and conditions of the
contract to other governmental entities. Unilateral offers by vendors to extend contract
pricing and other terms and conditions would not fall within the exception.
(3) The contract must have been “let to the lowest responsible bidder or on the basis of
best value in a manner consistent with this section.” The term “consistent with this
section” refers to General Municipal Law § 103 (and related case law) applicable to New
York State political subdivisions. The purchasing local government would need to obtain
background information on the procedures used to let the contract and, as necessary,
consult with its counsel, to determine whether this prerequisite is met. Additional
guidance on complying with this prerequisite follows.
Determining Consistency with GML § 103
In order for a non-New York contract to have been let to the lowest responsible bidder or on the
basis of best value (competitive offering)3 in a manner “consistent” with GML § 103, the
3
procedures used by that government need not be exactly the same as those under GML § 103.
Rather, the procedures for letting the non-New York contract must be in harmony or general
agreement with, and further the same principles as the competitive bidding or best value
requirements of GML § 103.4 In this regard, the courts in this state have stated that the
underlying purposes of GML § 103 are to guard against favoritism, improvidence, extravagance,
fraud and corruption, and to foster honest competition in order that the local government may
obtain the best goods and services at the lowest possible price to protect the public fisc.5
Based on the provisions of GML § 103 as construed by the courts in this State, and the
underlying purposes of GML § 103, we believe there are four fundamental elements that should
be present in the procedures used by the non-New York entity in letting its contract in order for
the process to have been let to the lowest responsible bidder or on the basis of best value
consistent with GML § 103. These elements are:
• Public solicitation of bids or, in the case of best value, offers. A public solicitation is
consistent with the statutory advertising requirement in GML § 103,6 and serves to
ensure that the purposes of GML § 103 are furthered.
• Submission of sealed bids or offers, or analogous procedures to secure and preserve
the integrity of the process and confidentiality of the bids or offers submitted. A
secure competitive bidding or best value process is consistent with the sealed
competitive bidding and competitive offering requirements of GML § 103 7 and helps
foster honest competition and guard against collusion.
• Preparation of specifications, or a similar document that provides a common standard
for bidders or offerers to compete fairly. Consistent with the purposes of GML § 103,
the contracting entity, in advance of the submission of bids or offers, should convey
the nature of the goods or services and other information necessary for prospective
bidders or offerers to make an intelligent evaluation and bid or offer, without being
unduly restrictive.8 In the case of a best value process, this generally should include a
description of the manner in which the evaluation of the offers and award of the
contract will be conducted and, as appropriate, identify the relative importance or
weight of price and non-price factors.9
• Award to the lowest bidder who materially or substantially meets the bid
specifications and is determined to be a responsible bidder, or in the case of a best
value process, an award to the responsive and responsible offerer 10 which optimizes
quality, cost and efficiency, reflecting objective and quantifiable analysis, whenever
possible.11 A contract awarded through a negotiation process would not be
consistent with the requirements and purposes of awarding to the lowest responsible
bidder or on the basis of best value in a manner consistent with GML § 103.
4
Other Factors to Consider; Internal Controls.
• Contractual Relationship. By placing an order with the contract vendor, the
purchasing local government generally will be entering into a contractual relationship
with that vendor in accordance with the terms and conditions of the contract.
Accordingly, local officials, in consultation with the attorney for the local
government as necessary, should carefully review those terms and conditions before
making the purchase. In some cases, the contract may have been let in a manner
consistent with GML § 103, but the terms and conditions of the contract may conflict
with other New York State laws or regulations.12 This could result in the local
government being unable to use the contract.
• Audit of Claims. The payment to the contract vendor will be subject to standard
procedures for claims processing, including audit of claims procedures.
• Cost Savings Justification. Unlike recent amendments to GML §§ 103 (3) and 104
pertaining to county and certain federal contracts (e.g. L 2003, ch 62; L 2011, ch 97),
GML § 103 (16) does not expressly require local governments to consider whether
the contract will result in cost savings. Nonetheless, local officials should perform a
cost-benefit analysis before utilizing this exception. This will help ensure that the
local government is furthering the underlying purposes of the new law, and that the
procurement is consistent with the purposes of GML § 103. The analysis should be
used to demonstrate whether “piggybacking” is cost effective and should consider all
pertinent cost factors, including any potential savings on the administrative expense
that would be incurred if the local government initiated its own competitive bidding
or best value process.
• Documentation. Local governments should maintain appropriate documentation to
allow for a thorough review of the decision to use this exception to competitive
bidding by local government officials, external auditors and taxpayers. This
documentation may include such items as copies of the contract, analysis of the
contract to ensure it meets the three prerequisites stated above, and cost savings
analysis including consideration of other procurement methods.
Procurements Below the Bidding Monetary Threshold; Policies and Procedures
As noted, GML § 103 (16) provides an exception to the requirements of subdivision one of that
section. However, procurements that are below the monetary thresholds set forth in Section 103
(1)13 (or otherwise fall within another exception, such as emergency purchases)14 already are
exempt from the requirements of GML § 103. Those procurements, instead, are subject to the
local government’s own procurement policies and procedures adopted pursuant to GML § 104-b.
Therefore, whether a local government may make purchases that are below the statutory
thresholds by “piggybacking” on contracts let by governmental entities listed in GML § 103 (16)
will be governed by the local government’s own procurement policies.15
5
Please feel free to contact Mark Stevens in our Division of Legal Services (518-402-4437) with
legal questions, and the State Comptroller’s regional office that serves your local government
with internal control and documentation questions.
End Notes
1 NY Senate and Assembly Mems in Support of S. 5525-C/A. 8034-C, 2012. The amendment also states that the
authority provided in GML § 103 (16) does not relieve any obligation of the local government to comply with any
applicable M/WBE business enterprise mandates and the preferred source requirements of State Finance Law § 162. 2 In 2011, the GML was amended to permit political subdivisions to participate in two specific federal contract
extension programs (“Supply Schedule 70” and “Section 1122”) as exceptions to the requirements of GML § 103
(GML §§ 103 [1-b], 104 [2]). GML § 104 (2) was further amended by chapter 497 of the Laws of 2013 to provide
that political subdivisions, as exceptions to the requirements of GML § 103, may make use of several additional
federal programs made available to local governments (local preparedness acquisition act [“Schedule 84”]; section
833 of the John Warner national defense authorization act for fiscal year 2007; and federal supply schedule usage
act of 2010). These exceptions, which are separate from, and not subject to the prerequisites of GML § 103 (16), are
scheduled to sunset on June 24, 2014. Any other federal contracts are subject to the prerequisites of GML § 103
(16).
3 The “lowest responsible bidder” requirement dictates that the contract award is made to the low price bidder who is
determined to be a responsible bidder (see e.g. AAA Carting v Town of Southeast, 17 NY3d 136). As an alternative
to lowest responsible bidder awards, GML § 103 allows political subdivisions, by local enactment, to make awards
of certain purchase contracts to “responsive and responsible” vendors on the basis of “best value,” as defined in
State Finance Law § 163. “Best value” is defined in State Finance Law § 163 as a basis for awarding a contract to
the offerer which optimizes quality, cost and efficiency among responsive and responsible offerers, reflecting,
whenever possible, objective and quantifiable analysis. The definition of “best value” provides that “[s]uch basis
may also identify a quantitative factor for offerers that are small businesses or certified minority- or women-owned
business enterprises as defined in subdivisions one, seven, fifteen and twenty of section three hundred ten of the
executive law to be used in evaluation of offers for awarding of contracts for services.” Political subdivisions, other
than New York City, are required to first authorize the use of best value awards by local law, or in the case of
district corporations (e.g. fire districts), school districts and BOCES, by rule, regulation, or resolution. The
amendments to GML § 103 which added the best value option (L 2011, ch 608 as amended by L 2012, ch 2)
distinguished the best value process from competitive bidding, referring to the best value process as a “competitive
offering” (GML § 103 [1-a], [4], [6], [7]; see also GML § 103, section heading). 4 See e.g. Stocker v Sheehan, 13 AD3d 1. 5 See e.g. AAA Carting v Town of Southeast, 17 NY3d 136; Associated General Contractors v New York State
Thruway Authority, 88 NY2d 56; Jered v NYCTA, 22 NY2d 187; see also GML § 100-a. 6 See GML § 103 (2).
7 See GML §§ 103 (1), (5).
8 See e.g. AAA Carting v Town of Southeast, 17 NY3d 136; Browning-Ferris v City of Lackawanna, 204 AD2d
1047; Progressive Dietary v Wyoming County, 90 AD2d 214; Matter of L & M Bus Corp. v New York City Dept.
of Educ., 17 NY3d 149; Gerzof v Sweeney, 16 NY2d 206.
9 See State Finance Law § 163 (9) (b); see also footnote 11 for a discussion on non-price factors.
10 Whether a bidder or offerer is “responsible” involves a factual, case by case examination into a bidder’s
background, assessing factors such as a bidder’s capacity and financial ability to complete the contract,
accountability, reliability and integrity (see e.g. DeFoe v New York City, 87 NY2d 754; Abco Bus v Macchiorola,
75 AD2d 831 revd on dissent 52 NY2d 938; State Finance Law § 163 [1] [c]). The New York Court of Appeals has
held that, as a matter of due process, a bidder is entitled to reasonable notice and a timely and adequate opportunity
to be heard before a determination of non-responsibility is made (LaCorte v County of Rensselaer, 80 NY2d 232).
In addition, the New York courts have distinguished between the case by case determination of responsibility and
the authority to debar or suspend bidders from future contracts (see e.g. Callanan v White, 118 AD2d 167 lv denied
123 AD2d 462 and 69 NY2d 601). There is only limited authority in New York to debar bidders from future
contracts (e.g. Labor Law § 220-b, 235). There is, however, authority for bidders on contracts for public work to be
“pre-qualified” under certain circumstances (GML § 103 [15]). For purposes of a contract that has been awarded on
the basis of best value, a “responsive” offerer is an offerer meeting the minimum specifications or requirements as
prescribed in the procurement solicitation (see State Finance Law § 163 [1] [d]). Consistent with the best value
6
requirements of GML § 103, no political subdivision, other than New York City, may use a contract awarded on the
basis of best value unless the political subdivision has first adopted a local law, rule, regulation or resolution, as the
case may be, in accordance with GML § 103 (1), authorizing the use of best value for awarding purchase contracts. 11GML § 103 (1); SFL § 163 (1) (j). With respect to whether a contracting entity has let a contract on the basis of
best value in a manner consistent with GML § 103, the contracting entity may have considered non-price factors
when awarding the purchase contract, such as reliability of a product, efficiency of operation, difficulty/ease of
maintenance, useful lifespan, ability to meet needs regarding timeliness of performance, and experience of a service
provider with similar contracts. To ensure that, whenever possible, there has been an objective and quantifiable
analysis consistent with the requirement under GML § 103 (1) and SFL § 163 (1) (j), as a rule, the contracting entity
should have used a cost-benefit analysis or other similar process to demonstrate quantifiable value or savings from
non-price factors that offset the price differential of the rejected lower price offer (see e.g. Matter of Transactive v
New York State Department of Social Services, 236 AD2d 48 affd on other grounds 92 NY2d 579. If the
contracting entity let the best value contract based on criteria that was not objective and quantifiable, some form of
justification should be provided (see State Finance Law § 163 [9] [a]).
12 For example, an out-of-State contract may require advance payment to the vendor. With limited exceptions, local
governments may not pay a claim for goods or services prior to audit and approval by the claims auditing body or
official, or prior to the receipt of goods or services (see e.g. Town Law § 118; Village Law § 5-524 [4]; County Law
§ 369 [2]; Education Law § 1724; 8 [A-2] NYCRR § 170.2 [k]). Therefore, such a clause may conflict with New
York State statutes.
13 The monetary threshold is $20,000 for purchase contracts, and $35,000 for contracts for public work, calculated as
prescribed in GML § 103 (1). 14 See GML § 103 (4). 15 GML § 104-b generally requires that the procurement policies and procedures provide for obtaining alternative
proposals or quotations when a procurement is not subject to bidding requirements (GML § 104-b [2] [b]). The
procurement policies, however, may set forth circumstances when, or types of procurements for which, in the sole
discretion of the governing body, the solicitation of alternative proposals or quotations will not be in the best interest
of the local government (GML § 104-b [2] [g]). Local officials should undertake the same type of cost-benefit
analysis and documentation as discussed above before permitting an exception to the local government’s
procurement policies and procedures for these contracts. Local officials also should review and, as necessary,
update the policies and procedures to ensure that use of this new exception for procurements above the bidding
threshold is consistent with the relevant policies and procedures, and that provisions for cost savings justification
and documentation to support the use of “piggybacking” as an exception to bidding are incorporated.
LOCAL GOVERNMENT MANAGEMENT GUIDE
Division of Local Government and School Accountability
New York State Office of the State Comptroller
Seeking Competition in Procurement
Thomas P. DiNapoli State Comptroller
For additional copies of this report contact:
Division of
Local Government and School Accountability
110 State Street, 12th floor
Albany, New York 12236
Tel: (518) 474- 4037
Fax: (518) 486- 6479
or email us:
localgov@osc.state.ny.us
www.osc.state.ny.us July 2014
Table of Contents
Who is Responsible? ....................................................................................................2
Planning and Promotion ..............................................................................................3
Seeking Competition ....................................................................................................5
E-Procurement ..........................................................................................................10
Cooperative Purchasing .............................................................................................11
Piggybacking on Certain Government Contracts ......................................................12
Procurement Policies and Procedures .......................................................................15
Professional Services ................................................................................................17
Preferred Sources .....................................................................................................19
Environmentally Responsible Purchasing .................................................................20
Ethics and Conflicts of Interest .................................................................................22
Conclusion ..................................................................................................................25
APPENDIX A-Categories of Procurement ..................................................................26
APPENDIX B-Sample Format for Procurement Policy and Procedures ....................29
Central Office Directory .............................................................................................31
Regional Office Directory ..........................................................................................32
If managed
effectively,
State and local
procurement
requirements can
increase competition
and reduce the
cost of goods
and services of
acceptable quality.
1 Office of the State ComptrollerDivision of Local Government and School Accountability
Seeking competition in procurement is important in our business and often in
our personal lives too. In our personal lives, we seek competition instinctively
when we shop at the grocery store, or when we purchase a new or used
vehicle. No one needs to tell us that it’s a smart idea to make price and quality
comparisons between different stores and different manufacturers in an effort
to obtain the most favorable terms for our own money.
In our business lives we also know that we need to seek competition, but
rather than just relying on common sense, seeking competition is often
required by State law or by locally adopted policy. If managed effectively,
State and local procurement requirements can increase competition and
reduce the cost of goods and services of acceptable quality. A fair and
open competitive process will also help discourage favoritism in public
procurements, encouraging additional vendors to compete for your
business. Increasing your organizational knowledge about State and local
requirements will help you create a proactive, competitive environment in
your procurement function.
This guide provides an overview of the following procurement topics:
• Who is Responsible ?
• Planning and Promotion
• Seeking Competition
• E-Procurement
• Cooperative Purchasing
• Piggybacking on Certain Government Contracts
• Procurement Policies and Procedures
• Professional Services
• Preferred Sources
• Environmentally Responsible Purchasing
• Ethics and Conflicts of Interest.
In addition to these topics, Appendix A is provided to help you understand
the types and dollar thresholds of purchases and contracts for public
work subject to competitive bidding or to local policies and procedures.
Appendix B will assist you in updating or creating your own procurement
policies and procedures.
Seeking competition in public procurements can be a complex topic and the
information contained in this guide is not a substitute for the services of
your locality’s attorney. This guide is designed as a layperson’s guide to topics
relevant to seeking competition. We encourage you to seek the advice of
your attorney on legal issues pertaining to bidding and other aspects of your
contractual arrangements for the acquisition of goods and services.
2 Division of Local Government and School AccountabilityOffice of the State Comptroller
Who is Responsible?
Whether your procurement process is centralized through a purchasing
agent, or decentralized with many officials conducting their own
procurements, it is the people making procurements who are the front line
in seeking competition. It is vitally important that purchasing agents and
other procurement officials have sufficient knowledge about the laws and
local policies that guide competitive procurement. It’s also important that
these individuals possess a spirit of thriftiness and cost consciousness.
While the primary responsibility rests with officials who actually make the
procurements, management plays an important role in maintaining effective
communication. Management’s communication of the organizational
requirements and expectations for seeking competition will have a pervasive
effect on how diligently competition is sought throughout the entity. The
best policies ever written are just paper unless they are clearly conveyed to
staff, and then enforced.
Responsibility for procurement generally starts with the governing board.
The governing board is responsible for adopting policies that describe
its goals for procurements, including formal procurement policies and
procedures that govern the acquisition of goods and services not required
by law to be competitively bid. In some cases, the initial policies and updates
will be drafted by procurement officials for the board’s review and eventual
approval. The governing board is also responsible for adopting a code of
ethics that supplements State law relating to conflicts of interest on the part
of officers and employees. A code of ethics is required to set forth standards
of conduct relating to several specific areas and may also contain provisions
addressing ethical behavior in the procurement process.1
The governing
board is
responsible for
adopting policies
that describe
its goals for
procurements,
including formal
procurement
policies and
procedures
that govern the
acquisition of
goods and services
not required
by law to be
competitively bid.
1 General Municipal Law, section 806 requires that municipal codes of ethics, at a minimum, provide standards for officers
and employees with respect to disclosure of interest in legislation before the local governing board, holding of investments in
conflict with official duties, private employment in conflict with official duties and future employment.
3 Office of the State ComptrollerDivision of Local Government and School Accountability
Planning and Promotion
One of the best methods for ensuring that goods and services are acquired
in a cost effective manner is to create as much competition as possible.
In our personal lives, vendors compete for our business every day in the
form of advertisements, holiday sales, and coupons. Competition for local
government and school district dollars is not always as dynamic as what we
experience in our own personal lives. To create as much market awareness as
possible, local governments and school districts should carefully plan their
solicitations for future procurements. Whether using formal competitive
bids, competitive offerings, requests for proposals (RFPs), or written and
verbal quotes, a well-planned solicitation effort is needed to reach as many
qualified vendors as possible. If conducted properly, the competition
generated from advance planning may save your locality money.
Advertising is the heart of seeking competition, and localities may
benefit from publicizing their procurement needs (beyond required legal
notices) to attract prospective vendors. Although not commonly used in
government, some economical forms of disseminating information that
treat all prospective vendors in a fair and equitable manner are certainly
worth considering. For example, preparation of a pamphlet, such as a
“Guide to Doing Business with [Name of Unit]” may help attract new vendors
and encourage current vendors to keep their prices competitive. The
pamphlet could include descriptions of the types of commodities commonly
purchased, general instructions as to when certain types of bids or offers
are usually solicited, the name of the official newspaper and any other
places where advertisements for bids or offers will be published. Other
helpful information would include: the location and business hours of the
purchasing department or contact person, key telephone and fax numbers,
and driving directions for the opening of bids or offers. Once developed,
this type of pamphlet can be posted on your website and mailed upon
request to prospective vendors.2
One of the
best methods
for ensuring
that goods and
services are
acquired in a cost
effective manner
is to create as
much competition
as possible.
2 Any such method of dissemination of information should be undertaken in a way that treats all prospective vendors in a fair
and equitable manner.
4 Division of Local Government and School AccountabilityOffice of the State Comptroller
Keep in mind that when soliciting competitive bids or offers, you can
utilize more than one form of media to attract qualified bidders or offerors.
In addition to using your official newspaper, you may advertise in other
newspapers and trade journals, and notices can be posted on your website.
You may also maintain a comprehensive list of prospective bidders or offerors,
and provide notices directly to those on the list.3 A comprehensive solicitation
effort helps to ensure that the largest possible pool of potential vendors is
made aware of your needs. You should weigh the cost of using additional
forms of media against the potential savings from increased competition.
Another good business practice is to prepare a purchasing calendar to
facilitate and coordinate the purchasing function. A purchasing calendar
identifies dates on which certain classes of items will be bid or otherwise
purchased. This type of planning helps coordinate the purchasing process
on a weekly, monthly and yearly basis. If possible, you should also plan
to acquire particular types of items when the best prices are available
and prompt deliveries can be made. Annual purchases (for example,
volume purchasing and bidding) can be scheduled during periods when
suppliers can be the most competitive. However, this option only works if
ample storage space is available for bulk purchases. The use of an orderly
purchasing calendar will also help ensure that established procurement
policies and procedures are followed, and goods and services are received
in a timely manner.
Depending on the type and dollar value of the procurement, planning and
disseminating information about future purchases can be relatively simple
and require minimal effort, or it can be a complex and time-consuming
process. Be sure to allow sufficient lead time to permit adequate planning,
advertising, review of vendor qualifications, and possible readvertising,
especially in the case of large dollar acquisitions. Planning and gathering
pertinent information is vital in any decision-making process, and this
golden rule also applies to seeking competition in procurements.
Planning and
gathering pertinent
information
is vital in any
decision-making
process, and this
golden rule also
applies to seeking
competition in
procurements.
3 Care should be taken to ensure that all known prospective bidders or offerors, with reasonable limitations, are included on
the list and that no bidders or offerors are arbitrarily excluded or removed from the list.
5 Office of the State ComptrollerDivision of Local Government and School Accountability
Seeking Competition
One of the goals of seeking competition is to foster honest competition to
enable your government to obtain quality commodities and services at the
lowest possible cost. Seeking competition also guards against favoritism,
extravagance and fraud, while allowing interested vendors a fair and equal
opportunity to compete. Organizations that embrace the goals of seeking
competition can realize both monetary benefits and product satisfaction
from the time, effort and resources required to conduct statutorily required
competition. To realize these benefits fully, procurement officials need to be
knowledgeable about the requirements of competitive bidding and competitive
offerings (i.e., “best value” awards).
Monetary Thresholds – Generally, local governments and school districts
are required to advertise for competitive bids when procurements exceed
certain dollar thresholds. Purchase contracts involving expenditures in excess
of $20,000 and contracts for public work involving expenditures in excess of
$35,000 are generally subject to competitive bidding under the law.4 When
using competitive bidding, contracts are awarded to the “lowest responsible
bidder” after public advertisement for sealed bids. As further discussed
below, local governments and school districts may elect to award “purchase
contracts,” which exceed the monetary threshold, on the basis of “best value,”
as an alternative to awarding contracts to the “lowest responsible bidder.”
There are several exceptions to the competitive bidding and competitive
offering (“best value”) requirements, such as purchases made through the
New York State Office of General Services, purchases made through certain
county and federal contracts, purchases made through the use of certain
contracts let by other states or political subdivisions, emergency purchases,
professional services and purchases from a legitimate sole source. In addition,
procurements of commodities and services may be required to be made from
preferred sources. We discuss some of these exceptions and purchases from
preferred sources later in this guide.
Seeking
competition also
guards against
favoritism,
extravagance
and fraud,
while allowing
interested vendors
a fair and equal
opportunity to
compete.
4 General Municipal Law, section 103(1). Although not within the scope of this guide, General Municipal Law section 101
(the “Wicks Law”) provides additional monetary thresholds and requirements for contracts for the erection, construction,
reconstruction or alternation of buildings.
6 Division of Local Government and School AccountabilityOffice of the State Comptroller
In many instances, the first step in the competitive process is to analyze
proposed procurements and determine whether the monetary threshold
will be exceeded. In determining whether the threshold will be exceeded,
the local government or school district must consider the aggregate
amount reasonably expected to be expended for “all purchases of the same
commodities, services or technology5 to be made within the twelve-month
period commencing on the date of purchase,”6 whether from a single vendor
or multiple vendors. Commodities, services or technology that are similar
or essentially interchangeable should be considered as the “same” for this
purpose. Monetary thresholds may not be avoided by artificially splitting
or breaking up contracts into lesser agreements, or entering into a series
of agreements, for sums below the dollar thresholds.7 The same principles
against artificially splitting to avoid the monetary threshold should be
applied to contracts for public work. If relevant, planning documents should
state how the amount was determined and whether the procurement will be
a purchase contract or a contract for public work.8
5 Although there is no definition of “technology” in the General Municipal Law, State Finance Law section 160(10) defines the
term to mean “either a good or a service or a combination thereof, that results in a technical method of achieving a practical
purpose or in improvements in productivity.”
6 General Municipal Law, section 103(1). The statute also prohibits any change to or a renewal of a purchase contract if the
change or renewal would bring the reasonably expected aggregate amount of all purchases of the same commodities, services or
technology from the same provider within the twelve-month period to an amount greater than the dollar threshold amount.
7 General Municipal Law, section 103(1).
8 In light of a series of statutory amendments (see amendments to General Municipal Law, section 103, by Laws of 2011,
chapter 608 amended by Laws of 2012, chapter 2; Laws of 2010, chapter 56, Part FF), it appears that services, other than
those necessary for the completion of a public works contract governed by the prevailing wage requirements of article 8 of
the Labor Law (e.g., building construction), are now generally categorized under the statute as “purchase contracts” and
not “contracts for public work.” Therefore, absent any statutory or judicial clarification, the safest approach is to apply the
$20,000 threshold to such services.
Example - Aggregate Purchases
Copy paper is purchased throughout the year and purchased from more than one vendor. Vendor A
is projected to supply $14,500 in copy paper and Vendor B $10,000 in copy paper. Both vendors have
very similar pricing structures. The total amount expected to be expended for the twelve-month period
commencing on the date of first purchase of copy paper throughout the local government or school
district determines whether the threshold is exceeded. Because the aggregate purchase of the copy
paper for the twelve-month period is estimated to be in excess of $20,000, competitive bidding or a
competitive offering is required for these purchases, unless an exception applies. It is easy to see from
this example how planning plays an important role in determining the need to comply with statutory
bidding or offering requirements, and in fostering competition and achieving potential cost savings.
7 Office of the State ComptrollerDivision of Local Government and School Accountability
Specifications – The specification document sets forth the standards
and requirements that competitors must observe, and provides them with
information necessary to prepare their bids or offers. Specifications should
be clearly written. They should provide prospective vendors a common
standard by which to be measured, and provide assurance that vendors will
be competing on a fair and equal basis, which should encourage vendors to
be responsive and competitive. The specification should indicate the basis on
which the bids and offers will be evaluated and the award made. Preparing
responses can be costly to vendors, so qualified firms may be unwilling to
go through the work and expense of preparing a bid or offer if critical details
of the engagement or the criteria used to select the vendor are not clearly
communicated during the solicitation process. Specifications should not be
too vague or indefinite, so that competing bidders have enough information
to formulate intelligent bids or offers. Specifications also should avoid being
unduly restrictive, thereby shutting out or stifling open and fair competition
among vendors. Through the use of fair specifications, participation in the
competitive process may increase, resulting in potential cost savings.
Awarding Contracts – When competitive bidding is required, the award
of the contract is made to the lowest priced responsible bidder which
has complied with the specifications. In assessing whether a bidder is
responsible, a local government or school district should consider factors
such as a bidder’s capacity and financial ability to complete the contract,
accountability, past performance, reliability and integrity. Also, a bidder
is entitled to reasonable notice and opportunity to be heard before a
determination of non-responsibility is made.9
Local governments and school districts may elect to award purchase
contracts which exceed the statutory threshold (i.e., $20,000) to a responsive
and responsible offeror on the basis of “best value” (“competitive offering”),
instead of to the lowest responsible bidder.10 For this purpose, the term
“purchase contract” includes contracts for service work, but excludes
contracts necessary for the completion of a public works contract covered
by the prevailing wage provisions of article 8 of the Labor Law, such as for
building construction.11 Towns, villages, cities (except New York City) and
counties must first authorize the use of best value for awarding purchase
When competitive
bidding is required,
the award of the
contract is made
to the lowest
priced responsible
bidder which has
complied with the
specifications.
9 The “Iran Disinvestment Act of 2012” provides, among other things, that a “person” identified as engaging in “investment
activities in Iran” on a list that has been created by the State Office of General Services may not be deemed a responsible
bidder or offerer (General Municipal Law, section 103-g; see, http://www.ogs.ny.gov/about/regs/docs/ListofEntities.pdf).
10 General Municipal Law, section 103(1).
11 Specifically, it excludes public works contracts covered by the prevailing wage provisions of article 8 of the Labor Law.
8 Division of Local Government and School AccountabilityOffice of the State Comptroller
contracts by the adoption of a local law. District corporations (e.g., fire
districts), school districts, or boards of cooperative educational services
(BOCES) must first authorize the use of best value by rule, regulation or
resolution adopted at a public meeting.
“Best value” is defined for this purpose as a basis for awarding contracts “to
the offerer which optimizes quality, cost and efficiency, among responsive
and responsible offerers.”12 Therefore, in assessing best value, non-price
factors can be considered when awarding the purchase contract. Non-price
factors can include, but are not limited to, reliability of a product, efficiency
of operation, difficulty/ease of maintenance, useful lifespan, ability to meet
needs regarding timeliness of performance, and experience of a service
provider with similar contracts. The basis for a best value award, however,
must reflect, whenever possible, objective and quantifiable analysis.13
For purposes of best value, a responsive offeror is an offeror meeting
the minimum specifications.14 As discussed above, in assessing whether
an offeror is responsible, a local government or school district should
consider an offeror’s capacity and financial ability to complete the contract,
accountability, past performance, reliability and integrity.15
Accordingly, should the local government or school district elect to award
a purchase contract on the basis of best value, the local government or
school district must be prepared to show that: (1) the offeror is responsive
and responsible; and (2) local officials applied objective and quantifiable
standards, whenever possible, to determine that the offer optimizes quality,
cost and efficiency. The local government or school district should have
a written justification if it bases a best value award on criteria that are not
objective and quantifiable.
“Best value” is
defined for this
purpose as a basis
for awarding
contracts “to the
offerer which
optimizes quality,
cost and efficiency,
among responsive
and responsible
offerers.”
12 See State Finance Law, section 163(1)(j). General Municipal Law, section 103(1) cross-references the definition of “best value”
in State Finance Law, section 163.
13 Ibid. State Finance Law, section 163(1)(j) also provides that “[s]uch basis may also identify a quantitative factor for offerors that
are small businesses or certified minority- or women-owned business enterprises as defined in subdivisions one, seven, fifteen
and twenty of section three hundred ten of the executive law to be used in evaluation of offers for awarding of contracts for
services.”
14 State Finance Law, section 163(1)(d).
15 See State Finance Law, section 163(1)(c).
9 Office of the State ComptrollerDivision of Local Government and School Accountability
The best value specification should describe the general manner in which
the evaluation and award of offers will be conducted and, as appropriate,
identify the relative importance or weighting of price and non-price factors.16
As noted, the decision to award a contract on the basis of best value must
be based on objective and quantifiable analysis, such as a cost-benefit
analysis, whenever possible. In evaluating and determining to accept a higher
priced offer, the local government or school district generally should use a
cost-benefit analysis to show quantifiable value or savings from non-price
factors that offset the price differential of the lower price offers. The local
government or school district’s procurement policies and procedures should
require documentation of this analysis.17
Example - Cost-Benefit Analysis
A local government solicits competitive offers to purchase a new pickup truck. Vendor A offers the
lowest priced truck at $40,000. Vendor B offers a more fuel-efficient truck at a price of $45,000.
Both vendors are responsive and responsible offerors. The local government reasonably estimates
its average annual fuel costs to be $4,000 for Vendor A’s truck and $3,000 for Vendor B’s truck. The
local government also concludes, based on reliable independent studies and assuming current usage
of the vehicle, the more fuel efficient truck (Vendor B) will likely have $250 less in maintenance costs
annually than Vendor A (assuming maintenance costs of $1,000 annually for Vendor A’s truck). The
local government determines the expected useful life of a new truck to be 10 years and intends to
retain the truck for the full useful life. In order to quantify these other critical aspects relating to the
new pickup truck purchase, the local government prepares the following cost-benefit analysis:
Based on this analysis, it may be possible for the local government to support a determination that
the truck from Vendor B provides the “best value” to the local government.
16 See State Finance Law, section 163(9)(b).
17 See State Finance Law, section 163(9)(a); General Municipal Law, section 104-b(2)(d), (e).
18 General Municipal Law, section 103(2).
Whether a local government or school district elects to award a purchase
contract based on lowest responsible bidder or best value, they are required
to comply with public advertising and bid/offer opening requirements that
apply to purchase contracts above existing statutory thresholds.18
Vendor A Vendor B
Price (Truck)$40,000 $45,000
Fuel Costs over Useful Life (10 Years)$40,000 $30,000
Maintenance Costs over Useful Life (10 Years)$10,000 $7,500
Total Cost $90,000 $82,500
10 Division of Local Government and School AccountabilityOffice of the State Comptroller
E-Procurement
Another possibility for increasing competition as well as convenience is to
accept bids or offers electronically. The law authorizes local governments
and school districts to receive electronic bids or offers in connection with
purchase contracts (including contracts for service work, but excluding any
purchase contracts necessary for the completion of a public works contract
pursuant to article eight of the Labor Law).19 The governing board may by
resolution authorize the receipt of bids or offers in an electronic format. The
advertisement for bids or offers must designate how the electronic bid or
offer will be received, such as designating the website or email address where
the bid or offer should be sent.20
With the exception of “technology contracts,” the submission of bids or
offers in electronic format may not be required as the sole method, and paper
bids or offers must still be accepted. All other minimum requirements of the
competitive bidding or competitive offering process remain the same (e.g.,
advertising in the official newspaper, public opening of bids or offers, etc.).
Any method used to receive electronic bids or offers must also comply
with article three of the State Technology Law (the “Electronic Signatures
and Records Act”) and related regulations. Also, the method used must, at
a minimum:
• Document the time and date of receipt of the bids or offers received
electronically,
• Authenticate the identity of the sender,
• Ensure the security of the information transmitted and
• Ensure the confidentiality of the bid or offer until the time and date
established for the opening of bids or offers.
The authorization for electronic bids or offers is scheduled to sunset and
expires on June 1, 2018.
The advertisement
for bids or offers
must designate
how the electronic
bid or offer will
be received, such
as designating the
website or email
address where the
bid or offer should
be sent.
19 General Municipal Law, section 103(1).
20 9 NYCRR section 540.2.
11 Office of the State ComptrollerDivision of Local Government and School Accountability
Cooperative Purchasing
In a cooperative purchasing arrangement, two or more localities work
together to procure commodities or services jointly rather than separately.
The benefits of cooperative purchasing are potential cost savings attained
by lower commodity prices (achieved through economies of scale) and lower
joint administrative costs. The basic principle behind cooperative purchasing
is that supplies, materials and equipment can often be purchased for
substantially less if bought in quantity.
Cities, towns, counties, villages, fire districts, school districts, BOCES and
town or county improvement districts in New York State are authorized
to enter into cooperative purchasing arrangements among themselves
through intergovernmental cooperation agreements.21 Intergovernmental
cooperation may be defined as an arrangement between or among two or
more governments for accomplishing common goals, providing a service,
or solving a mutual problem. Basically stated, local governments and school
districts may generally perform any function or service on a cooperative
basis that they may perform individually. Purchasing is an example of where
intergovernmental cooperation can be employed.
In a cooperative purchasing arrangement, all laws relating to competitive
bidding or competitive offering must be complied with and the cooperative
agreement, which must be approved by each board, must be in place prior
to the solicitation of bids or offers. Local policies, such as the locality’s
procurement policy, may also need to be amended to ensure that they
are consistent with the cooperative purchasing agreement. Many local
governments and school districts purchase similar items, such as electricity,
office supplies, vehicle maintenance parts, cafeteria food and beverages,
sports equipment, and cleaning supplies, which could be purchased through
a cooperative arrangement. Typical cooperative purchasing activities include
development of a single set of specifications for common items, preparation
of advertisements of bids or offers, administration of the competitive
bidding or offering process, and arrangement for purchase deliveries.
Cooperative purchasing can provide all participants with the economies of
large scale purchasing.
The basic
principle behind
cooperative
purchasing is
that supplies,
materials and
equipment
can often be
purchased for
substantially
less if bought in
quantity.
21 General Municipal Law, sections 119-n, 119-o.
12 Division of Local Government and School AccountabilityOffice of the State Comptroller
Piggybacking on Certain Government Contracts
As an alternative to soliciting competition on your own or through
cooperative purchasing arrangements, local governments and school
districts may “piggyback” on contracts that have been extended to local
governments and school districts by certain other governments. Use of these
contracts constitutes an exception to the competitive bidding and offering
requirements of the law.
County Contracts – County governing boards in New York State may
authorize the inclusion of a provision in their purchase contracts and
contracts for services22 which are awarded to the lowest responsible
bidder after public advertisement for any political subdivision to obtain
commodities or services under such contracts.23 Procurements made under
these contracts by other localities must be made in accordance with the
rules adopted by the county board. These rules prescribe the conditions
under which, and the manner in which, the procurements may be made.
Information relative to county contracts that have been extended to
other localities can be obtained from county purchasing agents or other
appropriate county officials. Certain counties list available contracts on their
websites, or mail listings of contracts upon request.
State Contracts – Certain State contracts for the procurement of
commodities, equipment, materials, supplies, services, technology, and
food products are made available to local governments and school districts
through the New York State Office of General Services (OGS).24 Local
governments and school districts may make purchases at the same prices
and under the same terms as the State. For example, these contracts include
awards for road salt and fuel, vehicles and heavy equipment, school buses,
computer hardware and software, and much more.
OGS contracts are readily accessible on the OGS website at www.ogs.ny.gov.
You may also register online at www.ogs.ny.gov/pns to receive contract
email notices and other related information. You can sign up to receive
information for as few or as many of the contract areas that interest you. The
majority of State contracts can be used as soon as they are awarded. Orders
are placed directly with the contractors listed, using your own locality’s or
school’s purchase order. The State contract number should be included on
both your purchase order and the original invoice presented for payment.
As an alternative
to soliciting
competition
on your own
or through
cooperative
purchasing
arrangements,
local governments
and school
districts may
“piggyback”
on contracts
that have been
extended to local
governments and
school districts
by certain other
governments.
22 Other than those that are subject to prevailing wage provisions of article 9 of the Labor Law (e.g., building services).
23 See County Law, section 408-a(2); see also General Municipal Law, section 103(3).
24 See General Municipal Law, section 104.
13 Office of the State ComptrollerDivision of Local Government and School Accountability
The price of certain OGS commodities is directly impacted by volatile market
conditions. These commodities include road salt, fuel oil, gasoline, diesel fuel
and propane. OGS has created an on-line “filed requirements” database in
order to assist users in participating in the next contract cycle for some of these
price-sensitive commodities. You must file your information on-line before
the required due date. OGS uses the “filed requirements” data to prepare bid
documents and solicit competitive bids. The filing of requirements in this
database will bind you to the OGS contract as if you had contracted directly
with the vendor. Since notices about “filed requirements” are sent to the email
addresses your office has previously provided OGS, you are encouraged to
keep your Purchaser Notification System information up to date.
In addition to purchases through OGS, local governments and school districts
may also make purchases through other departments or agencies of the
State, subject to rules promulgated by OGS after consultation with the State
Procurement Council.25
Federal Contracts – Local governments and school districts may purchase from
certain federal General Service Administration (GSA) contracts. Under these
provisions, local governments and school districts have the option to purchase:
• Information technology and telecommunications hardware, software and
professional services through cooperative purchasing;26
• Certain equipment suitable for counter-drug, homeland security and
emergency response activities through the United States Department
of Defense;27
• Alarm and signal systems, facility management systems, firefighting and
rescue equipment, law enforcement and security equipment, marine craft
and related equipment, special purposes clothing, and related services;28
• Certain products and services to be used to facilitate recovery from major
disasters declared by the President under the Robert T. Stafford Disaster
Relief and Emergency Assistance Act, or to facilitate recovery from
terrorism or nuclear, biological, chemical or radiological attack;29 and
25 See Laws of 2012, chapter 55, amending General Municipal Law, section 104. As of January 31, 2013, the regulations had not
yet been finalized.
26 Permissible pursuant to federal GSA supply “Schedule 70”. Should the local government or school district choose to use the
contract, they are required to comply with the federal schedule ordering procedures set forth in the federal regulations. General
Municipal Law, section 104(2). See also, General Municipal Law, section 103(1-b).
27 General Municipal Law, section 104(2) authorizing the use by local governments to make purchases pursuant to Section 1122
of the National Defense Authorization Act for Fiscal year 1994.
28 General Municipal Law, section 104(2) authorizing the use by local governments to make purchases pursuant to the Federal
Local Preparedness Acquisition Act (“Schedule 84”).
29 General Municipal Law, section 104(2) authorizing the use by local governments to make purchases pursuant to Section 833
of the John Warner national defense authorization act for fiscal year 2007.
The price of certain
OGS commodities
is directly impacted
by volatile market
conditions. These
commodities include
road salt, fuel oil,
gasoline, diesel fuel
and propane.
14 Division of Local Government and School AccountabilityOffice of the State Comptroller
• Certain goods and services used “to facilitate disaster preparedness or
response”.30
Each of the provisions above is scheduled to sunset on July 31, 2019.
Certain Other Government Contracts – Local governments and school
districts may contract to purchase apparatus, materials, equipment or supplies
or contract for services related to the installation, maintenance or repair of
apparatus, materials, equipment, and supplies through the use of a contract
let by the United States or any agency thereof, any state or any other county,
political subdivision or district therein.31 In order for this exception to apply,
the contract must also be let either to the lowest responsible bidder or on the
basis of best value32 in a manner consistent with GML section 103 and made
available for use by other governmental entities. For additional details on this
exception, see the Piggybacking Law bulletin on our website at www.osc.state.
ny.us/localgov/pubs/piggybackinglaw.pdf.
While purchasing through extended State, county and other government
contracts may be advantageous, it is not required, and does not guarantee a
lower price and/or suitable quality item. On the plus side, State, county and
other government contracts may provide officials with the following additional
benefits:
• Reduction or elimination of the time required to prepare specifications;
• Enhancement and simplification of the procurement process, and
• Minimization of the time required to determine “responsibility” of
bidder(s).
When using a State, county or other government contract, you should also
consider other cost factors including delivery charges. Most OGS contracts
are FOB (free on board) and delivery to the purchaser’s location is generally
free, another potential advantage of using State OGS contracts. All other
miscellaneous costs should be investigated before you commit to purchasing
through a State, county or other government contract.33 Once again, allowing
sufficient time to plan for major purchases is essential.
While purchasing
through extended
State, county and
other government
contracts may be
advantageous, it
is not required,
and does not
guarantee a
lower price
and/or suitable
quality item.
30 General Municipal Law, section 104(2) authorizing the use by local governments to make purchases pursuant to the Federal
Supply Schedule Usage Act of 2010.
31 General Municipal Law, section 103(16)
32 Political subdivisions (other than New York City) that wish to make procurements under GML section 103 (16) through
the use of a contract let on the basis of best value must have first authorized the use of best value for awarding their own
purchase contracts by local law, or in the case of district corporations (e.g. fire districts), school districts and BOCES,
rule, regulation, or resolution. This authorization may be accomplished by the adoption of a single local law or single rule,
regulation or resolution.
33 In fact, General Municipal Law section 103(3) and 104(2) expressly provide that, prior to making a procurement through a
county or certain federal contracts, the appropriate officer, board or agency of the local government or school district must
consider whether the procurement will result in cost savings after all factors, including charges for service, material and delivery,
have been considered.
15 Office of the State ComptrollerDivision of Local Government and School Accountability
Procurement Policies and Procedures
Every local government and school district must adopt its own policies and
procedures for procurements of goods and services not required by law to
be competitively bid. Procurement policies and procedures generally ensure
that competition is sought in a reasonable and cost effective manner for
procurements below the bidding thresholds and for other contracts exempt
from bidding. A procurement policy and procedures applies to:
• Purchase contracts involving expenditures of $20,000 or less,
• Contracts for public work involving expenditures of $35,000 or less and
• Professional services and other procurements not required by law to be
competitively bid.
The law provides that goods and services not required to be competitively
bid must be procured in a manner to assure the prudent and economical
use of public moneys in the best interest of the taxpayers; to facilitate
the acquisition of goods and services of maximum quality at the lowest
possible cost; and, to guard against favoritism, improvidence, extravagance,
fraud and corruption.34
As there are vast differences in the size and nature of local government and
school district operations, and in the dollar value of their procurements,
management should carefully consider what procedures are appropriate for
their operations, within the requirements of the law.35 The policy and its
procedures should be well thought out and designed specifically to benefit
the locality and its taxpayers, and not simply a copy of a sample policy.
Procedures should be created after input is solicited and considered from all
staff involved in the procurement process.36
When a procurement is not subject to bidding requirements, the law generally
requires that the procurement policy provide that alternative proposals or
quotations be obtained by use of written requests for proposals (RFPs),
written quotations, verbal quotations or any other method that furthers the
purposes of the law. The procurement policy may set forth circumstances
when, or types of procurements for which, in the sole discretion of the
governing body, the solicitation of alternative proposals or quotations will
not be in the best interest of the local government or school district.
Every local
government and
school district
must adopt its
own policies and
procedures for
procurements of
goods and services
not required
by law to be
competitively bid.
34 General Municipal Law, section 104-b(1).
35 General Municipal Law, section 104-b.
36 General Municipal Law, section 104-b(3) requires that comments concerning the policies and procedures must be solicited
from officers of the political subdivision who are involved in the procurement process prior to the enactment of the policies
and procedures, and from time to time thereafter.
16 Division of Local Government and School AccountabilityOffice of the State Comptroller
These exceptions should be limited and be set forth only when properly
justified in the public interest.37 Otherwise, the effectiveness of the
procurement policy and its procedures will be diminished.
Each locality should develop detailed procedures that are appropriate for the
size and complexity of its operations. As most requirements involve benefits
and costs, any new policy should consider the cost-benefit relationship
between procedures and the expected outcomes. In adopting and carrying
out a procurement policy and procedures, the benefits of required actions
should not outweigh the costs, nor overburden the process.38 Additionally,
the policy and procedures must require adequate documentation of actions
taken. Documentation may include memoranda, written quotation forms,
telephone logs (for verbal quotes), RFPs, and copies of Federal, State,
county contracts or other government contracts for which “piggybacking”
is permitted. If a contract is awarded to an offer other than the lowest dollar
offer, the policy must require that there be justification and documentation,
setting forth the reasons the award furthers the purposes of the statute.
Your policies and procedures should be reviewed annually, as required by
law.39 This annual review can help ensure that procedures are current and
appropriate to meet the changing needs of your local government or school
district. Comments from purchasing officials should be requested at review
time, as they may identify the need to amend the policy or procedures.
Appendix A contains a chart designed to assist you in determining whether
a contract is subject to competitive bidding. Appendix B contains a sample
procurement policy that will assist you in developing or modifying your
procurement policies and procedures.
Each locality should
develop detailed
procedures that are
appropriate for the
size and complexity
of its operations.
37 Examples may include emergencies when time is a crucial factor, procurements for which there is no possibility of
competition and very small procurements for which solicitations of competition would not be cost effective.
38 General Municipal Law, section 104-b(2)(c) requires that the procurement policies and procedures set forth when each method
of procurement will be utilized, taking into account which method will best further the purposes of section 104-b and “the cost-
effectiveness of the method.”
39 General Municipal Law, section 104-b(2)(f) also provides that the procurement policy identify the individuals and their titles
who are responsible for purchasing. This information is to be updated biennially.
17 Office of the State ComptrollerDivision of Local Government and School Accountability
Professional Services
One of the most prominent exceptions to competitive bidding is professional
services. Professional services generally include services rendered by
attorneys, engineers, and certain other services requiring specialized
or technical skills, expertise or knowledge, the exercise of professional
judgment or a high degree of creativity. In addition, insurance coverage
(e.g., health, fire, liability, and workers’ compensation) is also not subject to
competitive bidding requirements.
Professional services can involve significant dollar expenditures, and
localities generally must include in their procurement policies and procedures
a proposal or quotation process to ensure that these procurements are
made on the most favorable terms and conditions. Seeking competition
for professional services and insurance coverage may be an opportunity
to generate cost savings for your locality. Your policy should describe the
methods and procedures for promoting competition in the procurement of
professional services.
One way to promote competition in professional services is to issue requests
for proposals (RFPs). Using an RFP is a common method of seeking
competition for professional services, where price should not necessarily be
the sole criterion for award of the contract. An RFP generally is a document
that provides detailed information concerning the type of service to be
provided including minimum requirements and, where applicable, the
evaluation criteria that will govern the contract award. Potential service
providers typically are supplied with copies of the RFP and are requested to
submit proposals by a specified date. Proposals can be solicited via public
advertisement, or a comprehensive list of potential vendors can be compiled
with vendors contacted directly and provided with the RFP. An RFP can
provide a mechanism for fostering increased competition for professional
services and can ensure that these contracts are awarded in the best interests
of the taxpayers.
Professional
services can involve
significant dollar
expenditures, and
localities generally
must include in
their procurement
policies and
procedures a
proposal or
quotation process
to ensure that these
procurements are
made on the most
favorable terms
and conditions.
18 Division of Local Government and School AccountabilityOffice of the State Comptroller
RFP procedures should include a comprehensive, fair solicitation process.
Prospective contractors should be made aware of your locality’s needs,
the procedures involved in responding to the RFP and the process for
evaluating proposals. Evaluation criteria and any weighting or ranking
of the importance of those criteria should be set forth in the RFP. The
evaluation criteria can include factors in addition to price (e.g., experience,
staff availability, work plan and methodology to achieve desired result and
estimated completion times). The process should be based on a fair and
equitable review and evaluation or ranking of the proposals. A well-planned
effort can help encourage qualified providers to respond to the RFP and
ultimately result in increased competition and potential cost savings.
Your procurement policy should designate whether RFPs or other similar
procedures should be used to solicit professional services and insurance
coverage. The solicitation of these services via RFP can help provide
assurance that quality services are obtained under the most favorable terms
and conditions possible.
Generally, there are no set rules regarding the frequency of RFPs. However,
provision should be made for periodic solicitations at reasonable intervals.
Specific requirements do apply, however, to school and fire district audit
services. The law requires school districts to utilize a competitive RFP
process when contracting for annual audit services and limit the audit
engagement to no longer than five consecutive years.40 In addition, those
fire districts that are required to obtain an annual audit must procure those
services through a competitive RFP process and also must limit the audit
engagement to a term no longer than five consecutive years.41
The law requires
school districts
to utilize a
competitive RFP
process when
contracting for
annual audit
services and
limit the audit
engagement to no
longer than five
consecutive years.
40 Education Law, section 2116-a(3)(b).
41 Town Law, section 181-b(3).
19 Office of the State ComptrollerDivision of Local Government and School Accountability
Preferred Sources
New York State has enacted legislation to advance “special social and
economic goals,” which accords certain providers with “preferred source”
status.42 Procurements of commodities and/or services, when available
in the “form, function and utility” required by the political subdivision,
are required to be made from preferred sources and are not subject
to competitive procurement requirements. Preferred sources include:
Correctional Industries Program of the Department of Corrections and
Community Supervisions (Corcraft); approved qualified, nonprofit agencies
for the blind; approved special employment programs for mentally ill
persons; approved qualified charitable nonprofit agencies for other severely
disabled persons; and certain approved qualified veterans’ workshops. The
law establishes the priority to be accorded to the various preferred sources.43
Those who are not familiar with the commodities and services of preferred
sources are often surprised to learn of the broad range of offerings and their
quality and competitive pricing. Commodity offerings include office and
classroom furniture such as desks, chairs, tables, and lockers; flags, cleaning
products, and janitorial supplies; packaged foods and beverages; office and
school supplies; and safety supplies and equipment such as fire extinguishers
and signage. Services include document processing, mail services, messenger
and phone answering services; food services; maintenance and janitorial
services; garbage pickup and recycling, and electronics recycling. Preferred
sources provide direct sales to local governments and school districts.
An assessment of preferred vendor availability should be made before a
commodity or service is considered for competitive bidding or alternative
procurement procedures. The Office of General Services (OGS) regularly
updates comprehensive information about preferred sources, and it also
provides an official “List of Preferred Source Offerings.” This information
can be obtained from the OGS website (www.ogs.ny.gov) or by inquiry.
Some preferred sources also have websites and can be contacted directly for
information about their commodities and services.
An assessment of
preferred vendor
availability should
be made before
a commodity
or service is
considered for
competitive bidding
or alternative
procurement
procedures.
42 State Finance Law section 162(1), (2); Correction Law section 184.
43 State Finance Law section 162(4).
20 Division of Local Government and School AccountabilityOffice of the State Comptroller
Environmentally Responsible Purchasing
Purchasing “green” is a socially responsible initiative that has gained
momentum throughout our State and our country. In an effort to preserve
our natural resources, many organizations, businesses and governments
have embarked upon programs that encourage environmentally responsible
purchasing. When seeking competition, local governments and school
districts generally can consider whether energy-efficient equipment will
produce savings in energy costs and, if properly justified, may include
an energy efficiency threshold in their specifications or consider energy
efficiency as part of a “best value” analysis. In addition, local governments
and school districts can provide for a preference for “recycled products.”44
It’s important to realize that a decision to purchase energy-efficient or
recycled products may not save your locality money initially. However,
long-term benefits may be realized through a reduction in energy costs or a
positive impact on the environment.
In at least one instance, purchasing green is mandatory. The law45 requires all
“elementary or secondary schools”46 to follow guidelines established by the
OGS for “environmentally-sensitive cleaning and maintenance products”
that are available in the form, function and utility generally used by schools
in their facilities. The term “environmentally-sensitive cleaning and
maintenance products” is defined as those products that minimize adverse
impacts on children’s health and the environment.47 OGS has developed lists
of green cleaning products for this purpose. The OGS website also includes
information on purchasing recycled or remanufactured products, and energy-
efficient products.
In an effort
to preserve
our natural
resources, many
organizations,
businesses and
governments
have embarked
upon programs
that encourage
environmentally
responsible
purchasing.
44 General Municipal Law, section 104-a sets forth an exception to the requirements of General Municipal Law, section 103
for the purchase of “recycled products.” “Recycled product” is defined to mean any product manufactured from secondary
materials (as defined in Economic Development Law, section 261), and meeting the requirements of Environmental
Conservation Law, section 27-0717 (the State recycling emblem program) and any regulations of the Department of
Environmental Conservation. If a “recycled product” meets specifications and the price is “reasonably competitive,” the
political subdivision may award the contract to the vendor of the recycled product, notwithstanding the provisions of General
Municipal Law, section 103. “Reasonably competitive” is defined to mean a cost premium not to exceed 10 percent of the
comparable non-recycled product or 15 percent if at least 50 percent of the secondary material utilized in making the recycled
product is generated from the waste stream in New York State.
45 Education Law, section 409-i; see also State Finance Law, section 163-b.
46 This is defined to cover school districts, BOCES, charter schools, approved private schools for the education of students with
disabilities, state-supported schools for the deaf or blind operated pursuant to article eighty-five of the Education Law, and
any other private or parochial elementary or secondary school (Education Law, section 409-I [1] [a]).
47 Education Law section 409-i[1][b]).
21 Office of the State ComptrollerDivision of Local Government and School Accountability
Besides opportunities for purchasing green, local governments and school
districts are also exploring other options that help protect our environment.
The Office of the State Comptroller released an audit report48 in 2011 that
discusses the cost effectiveness of purchasing liquid propane (LP), which
the Environmental Protection Agency approved as an alternative clean fuel,
for use in school buses rather than diesel fuel. The audit found that LP-
powered buses cost more than the diesel alternative. However, New York State
currently provides NYSERDA grant funds to bridge the difference in cost.
The audit also found that LP fuel costs – with help from a federal tax credit–
are lower, and that maintenance of LP buses is less expensive. However,
paying for LP infrastructure (fueling stations) could add to a district’s start-
up costs for using LP buses. If government tax credits for LP-powered buses
continue to be available, and if surcharges on diesel-powered buses continue to
increase, LP-powered buses can be a lower-cost alternative to diesel-powered
buses. LP fuel is also safer to use and store than diesel fuel.
Each local government and school district needs to assess its own purchasing
needs and objectives in relationship to green purchases. In some instances,
environmentally responsible purchasing may be prohibitively costly or only
produce limited benefits or efficiencies. Providing options for recycled and
energy-efficient green products can often, and in some cases must, be part of
seeking competition and the procurement process.
Besides
opportunities
for purchasing
green, local
governments and
school districts
are also exploring
other options that
help protect our
environment.
48 www.osc.state.ny.us/localgov/audits/swr/2011/schoolbuses/global.pdf.
22 Division of Local Government and School AccountabilityOffice of the State Comptroller
Ethics and Conflicts of Interest
Generally, local governments and school districts are required to have a
code of ethics that sets forth standards of conduct reasonably expected of
its officers and employees.49 Although a code of ethics is an entity-wide
document, it may be beneficial to include standards for procurement activities
in your code since procurement is a function where the public and private
sectors meet to conduct business. Public procurement officials need to have
a clear understanding of what business practices are permissible and what
ones are not. It is also important that all local government and school district
officers and employees maintain high ethical standards of conduct and avoid
situations where there is even the appearance of impropriety.
Among the ways in which procurement activities may be addressed in your
code of ethics are by the inclusion of provisions:
• Purchasing activities are to be conducted in a manner that is in accordance
with law, in the best interests of the local government or school district,
avoids favoritism, wastefulness, extravagance, fraud and corruption, and
fosters honest competition to obtain the greatest economic benefit for
every tax dollar expended.
• Procurement officials should insist on and expect honesty in sales
representation whether offered verbally or in writing, through the medium
of advertising, or in the sample of a product submitted.
• Procurement officials must treat all vendors and prospective vendors fairly
and equally.
• Procurement officials should discourage the offer of gifts, and decline
gifts that in any way might influence or have the appearance of
influencing the procurement of goods or services.50
Our office has prepared model codes of ethics which are available on our website:
www.osc.state.ny.us/localgov/pubs/codeofethics.pdf and
www.osc.state.ny.us/localgov/firedist/modelcoe.pdf.
Generally, local
governments
and school
districts are
required to
have a code of
ethics that sets
forth standards
of conduct
reasonably
expected of its
officers and
employees.
49 General Municipal Law, section 806.
50 As discussed below, General Municipal Law, section 805-a(1)(a) prohibits municipal officers and employees from accepting gifts
having a value of $75 or more under circumstances where it could reasonably be expected or inferred that the gift is intended to
influence the performance of official duties or as a reward for any official action.
23 Office of the State ComptrollerDivision of Local Government and School Accountability
Gifts - Governing boards should consider providing guidance in their
codes of ethics on the acceptance of gifts by local government and school
district officers and employees. The law prohibits any officer or employee
from directly or indirectly soliciting any gift.51 It also prohibits any officer
or employee from accepting or receiving any gift having a value of $75
or more, in any form, under circumstances in which it can reasonably be
inferred that the gift was intended to influence the officer or employee, or
could reasonably be expected to influence the officer or employee, in the
performance of his or her official duties, or was intended as a reward for any
official action on his or her part.52 It is a common practice for vendors in the
private sector to offer tickets to sporting and other entertainment events,
lunches at exclusive locations, clothing with company logos, and a variety of
other perks. Municipal officers and employees with purchasing or financial
responsibilities are sometimes offered such gifts. Your locality’s code of
ethics could supplement the prohibitions contained in the law, including
addressing gifts to close relatives of officers and employees.53
Conflicts of Interest - Besides including guidance on the acceptance of
gifts in your code of ethics, local governments and school districts also need
to have a system in place for ensuring that potential conflicts of interest are
identified, prohibited interests are avoided and any disclosure requirements
are followed. The law limits the ability of municipal officers and employees
to enter into contracts in which their personal financial interests and their
public powers and duties conflict.54
Governing boards
should consider
providing
guidance in their
codes of ethics on
the acceptance
of gifts by local
government and
school district
officers and
employees.
51 General Municipal Law section 805-a(1)(a).
52 Ibid.
53 The State Comptroller’s Office model codes of ethics, cited above, contain sections relating to gifts (see Model Code of
Ethics for Local Governments, section 17; Model Code of Ethics for Fire Districts, section 12).
54 General Municipal Law, article 18.
24 Division of Local Government and School AccountabilityOffice of the State Comptroller
Unless a statutory exception applies, municipal officers and employees,
including purchasing officials, are prohibited from having an “interest” in
contracts with the local government or school district for which they serve
when they also have the power or duty, either individually or as a member
of the board, to negotiate, prepare, authorize, or approve the contract; to
authorize or approve payment under the contract; to audit bills or claims
under the contract; or to appoint an officer or employee with any of those
powers or duties. For this purpose, a “contract” includes any claim, account,
demand against or agreement with a municipality, express or implied.
Municipal officers and employees have an interest in a contract, including
purchase contracts, when they receive a direct or indirect monetary or
material benefit as a result of a contract. Municipal officers and employees
are also deemed to have an interest in the contracts of: their spouse, minor
children and dependent (except employment contracts); any firm partnership
or association of which they are a member or employee; and any corporation
of which they are an officer, director or employee, or directly or indirectly
own or control any stock. As a rule, interests in actual or proposed contracts
on the part of a municipal officer or employee, or his or her spouse, must
be publicly disclosed in writing to the municipal officer or employee’s
immediate supervisor and to the governing board of the municipality. The
written disclosure must be made part of and be set forth in the official
record of the proceedings of the board. Our office has designed a tutorial on
conflicts of interests that is available on our website: www.osc.state.ny.us/
localgov/training/modules/protecting/one/index.htm.
Conflicts of interest can be identified by the use of disclosure forms that
identify outside employment, business interests, investments or other
interests. Counties, cities, towns and villages with populations of 50,000
or more must, and other local governments and school districts may,
promulgate annual statements of financial disclosure for certain officers
and employees.55 Careful use of financial disclosure forms can help identify
potential conflicts of interest at an early stage.56
Ensuring the highest of ethical standards in the procurement process is an
important ingredient in creating a fair and competitive procurement process
that makes prudent and cost effective procurements in the best interest of
the locality and the taxpayer.
Conflicts of
interest can be
identified by the
use of disclosure
forms that
identify outside
employment,
business interests,
investments or
other interests.
55 General Municipal Law, sections 810-812.
56 Your legal counsel should be consulted with respect to whether any specific financial disclosure requirement for employees
constitutes a mandatory term or condition of employment for purposes of collective bargaining under Civil Service Law,
article 14.
25 Office of the State ComptrollerDivision of Local Government and School Accountability
Conclusion
Seeking competition in the purchasing cycle isn’t just a matter of ensuring
compliance with laws and local policy. The people who are directly
responsible for making procurement decisions should help to create a
cost-conscious and thrifty procurement environment, in which seeking
competition becomes intuitive and “second nature” for the organization.
The benefits of seeking competition, including the potential for cost
savings, should motivate a culture of competition within your procurement
function. Seeking competition can be enhanced when a community of best
practices, within legal parameters, is developed by each local government
or school district. Participation in professional procurement groups can
also assist in developing a cost-conscious atmosphere within your locality.
Communication within your organization about procurement goals, laws,
and local policy is also essential to enhancing your organization’s expertise
and commitment to seeking competition. Management can play a key role in
bringing together the various factors needed to create an organizational of
seeking competition.
The Office of the State Comptroller would be pleased to assist you with any
questions you have regarding the information contained in this guide, or any
special circumstances with which you may need assistance. The addresses
and telephone numbers for each of our regional offices, and our legal staff,
are located at the end of this publication. Please contact the regional office
for your locality or, for legal issues, our legal staff, with any questions you
may have.
The benefits of
seeking competition,
including the
potential for cost
savings, should
motivate a culture of
competition within
your procurement
function.
26 Division of Local Government and School AccountabilityOffice of the State Comptroller
Appendix A–Categories of Procurement
Most proposed procurements generally fit into one of the 16 categories in the following table. This table
identifies whether these categories are within the requirements of General Municipal Law (GML) Section
103, or within local procurement policies and procedures required by GML Section 104-b.
Subject to
Competitive
Bidding
(section 103)
Local
Policies and
Procedures
(section 104-b)
Purchase Contracts and Contracts for Public Work if No
Other Exception Applies57
1. Purchase Contracts – In excess of the $20,000 Threshold X(a)
2. Purchase Contracts – Below the $20,000 Threshold X
3. Contracts for Public Work – In excess of the $35,000 Threshold X(b)
4. Contracts for Public Work – Below the $35,000 Threshold X
Procurements Exempt from the Requirements of section 103
and the Quotations/Proposals Requirement of section 104-b
5. Preferred Sources (State Finance Law, section 162;
Correction Law, sections 184, 186)X(c)
6. State Contracts; certain Federal contracts (GML, section 104)X(c)
7. County Contracts (GML, section 103[3])X(c)
8. Additional exemptions provided for in local policies and
procedures (e.g., “piggybacking” on certain other government
contracts in accordance with the prerequisites in GML, section
103 [16]); other local exemptions).58
X(c)
Procurements Exempt from section 103
9. Emergency (GML, section 103 [4])X
10. Sole Source X
11. Professional Service X
12. True Leases X(d)X
13. Insurance X
14. Surplus/Second-hand Materials, Supplies, Equipment from
Certain Other Governments (GML, section 103 [6])X
15. Certain Food and Milk Purchases (GML, section 103 [9], [10])X(e)
16. Certain Municipal Hospital or Nutrition Program Purchases
(GML, section 103 [8])X
27 Office of the State ComptrollerDivision of Local Government and School Accountability
Appendix A–Categories of Procurement
57 See “Monetary Thresholds” section above for discussion of making the determination of whether the monetary thresholds
will be exceeded.
58 General Municipal Law, section 104-b(2)(g) provides that the procurement policy may set forth circumstances when, or types
of procurements for which the solicitation of alternative proposals or quotations will not be in the best interest of the local
government or school district.
(a) As noted, a local government or school district may authorize the use of “best value” as a basis for the award of “purchase
contracts (including contracts for service work, but excluding any purchase contracts necessary for the completion of a public
works contract pursuant to article eight of the labor law),” as an alternative to awarding to the “lowest responsible bidder.”
(b) General Municipal Law, section 101 (the “Wicks Law”) provides additional monetary thresholds with respect to contracts for
the erection, construction, reconstruction or alteration of buildings.
(c) Although General Municipal Law, section 104-b exempts these procurements from the requirement of written or verbal
quotations or proposals, each political subdivision should include in their policies and procedures a provision to ensure that
use of the exception is documented and, in the case of State, county or other government contracts, that procurements from
these sources are in the best interest of the unit. In the case of procurements through certain federal GSA contracts or a
county contract, the law expressly requires that the local government consider whether use of the county contract “will result
in cost savings after all factors, including charges for service, material and delivery, have been considered.” (see General
Municipal Law, sections 103[3], 104[2]). This could be accomplished by comparisons of prices to catalogs or other market
price comparisons.
(d) School districts only, Education Law, section 1725.
(e) School districts only.
28 Division of Local Government and School AccountabilityOffice of the State Comptroller
Appendix B–Sample Format for Procurement Policy and Procedures
This resolution sets forth the policy and procedures of the (Insert name of political subdivision) to meet the
requirements of General Municipal Law, section 104-b.
Purpose
Goods and services that are not required by law to be procured pursuant to competitive bidding must be
procured in a manner as to assure the prudent and economical use of public moneys in the best interest of
the taxpayers; to facilitate the acquisition of goods and services of maximum quality at the lowest possible
cost under the circumstances; and to guard against favoritism, improvidence, extravagance, fraud and
corruption. To further these objectives, the governing board is adopting an internal policy and procedures
governing all procurements of goods and services which are not required to be made pursuant to the
competitive bidding requirements of General Municipal Law, section 103 or of any other general, special, or
local law.
Procedures for Determining Whether Procurements are Subject to Bidding
The procedures for determining whether a procurement of goods or services is subject to competitive
bidding and documenting the basis for any determination that competitive bidding is not required by law is
as follows:
Procedure: (Insert specific procedures required)
Documentation: (Describe documentation requirements)
Statutory Exceptions to Quotations/Proposals Requirements of This Policy and Procedures
Except for procurements made pursuant to General Municipal Law, section 103 (3) (through certain
county contracts), section 104 (through certain State and Federal contracts), State Finance Law, section
162, Correction Law, sections 184 and 186 (from “preferred sources,” including articles manufactured in
correctional institutions), or the items excepted herein (see below), alternative proposals or quotations for
goods and services shall be secured by use of either written requests for proposals, written quotations,
verbal quotations or any other method of procurement that furthers the purposes of the General Municipal
Law, section 104-b.
Instructions: This template is a guide for local governments and school districts to utilize when developing
or updating their procurement policy and procedures. The policy content and extent of required procedures,
subject to the minimum statutory requirements, should be tailored to meet the needs of each locality’s
procurement function and should consider the costs and benefits of such procedures.
29 Office of the State ComptrollerDivision of Local Government and School Accountability
Appendix B–Sample Format for Procurement Policy and Procedures
Methods of Competition to be Used for Non-Bid Procurements
The methods of procurement to be used are as follows:
(Insert circumstances when each specific method of procurement will be utilized and procedures appropriate for the size and
complexity of your locality; take into account which method will best further the purposes of General Municipal Law, section
104-b and the cost-effectiveness of the method. If the local government or school district has adopted a local law, rule, regulation
or resolution, as the case may be, to authorize “best value” as a basis for awarding a purchase contract or contracts, “best value”
should be indicated here.)
Adequate Documentation
Documentation of actions taken in connection with each such method of procurement is required as follows:
(Insert specific documentation requirements)
Awards to Other than the Lowest Responsible Dollar Offeror
Whenever any contract is awarded to other than the lowest responsible dollar offeror, the reasons that such
an award furthers the purpose of General Municipal Law, section 104-b, as set forth herein above, shall be
documented as follows:
(Insert specific documentation requirements, including for “best value” awards, when authorized)
Items Excepted from this Policy and Procedures by the Board
The board sets forth the following circumstances when, or types of procurements for which, in the sole
discretion of the governing body, the solicitation of alternative proposals or quotations will not be in the
best interest of (Insert name of political subdivision or district).
(Insert list of circumstances or types of procurements for which the board has determined that the solicitation of alternate
proposals or quotations are not in the best interest of the taxpayers. The number of such circumstances and/or types of
procurements should be limited and only where adequately justified. “Piggybacking” on certain other government contracts in
accordance with the prerequisites in GML, section 103 [16] would be listed here. )
Individual(s) Responsible for Purchasing
(Insert names and titles of the individual or individuals responsible for purchasing and their respective titles; information to be
updated biennially).
30 Division of Local Government and School AccountabilityOffice of the State Comptroller
Input From Officers
Comments have been solicited from officers of the political subdivision or district therein involved in the
procurement process prior to the enactment of this policy and procedures, and will be solicited from time
to time hereafter.
Annual Review
The governing board shall annually review and, when needed, update this policy and procedures.
The (Insert name or position of designated person) shall be responsible for conducting an annual evaluation of
the effectiveness of the procurement policy and procedures and an evaluation of the control procedures
established to ensure compliance with the procurement policy, and shall be responsible for reporting back
to the board.
Unintentional Failure to Comply
The unintentional failure to comply fully with the provisions of General Municipal Law, section 104-b shall
not be grounds to void action taken or give rise to a cause of action against the (Insert name of the political
subdivision or district) or any officer or employee thereof.
Resolution
Adopted on (Insert date) by (Insert results of board vote) vote of the governing board of the (Insert name of
political subdivision).
Appendix B–Sample Format for Procurement Policy and Procedures
31 Office of the State ComptrollerDivision of Local Government and School Accountability
Mailing Address
for all of the above:
Office of the State Comptroller,
110 State St., Albany, New York 12236
email: localgov@osc.state.ny.us
DirectoryCentral Office
Division of Local Government and School Accountability
Andrew A. SanFilippo, Executive Deputy Comptroller
Executive ..................................................................................................................................................................474-4037
Gabriel F. Deyo, Deputy Comptroller
Nathaalie N. Carey, Assistant Comptroller
Audits, Local Government Services and Professional Standards ..................................................474-5404
(Audits, Technical Assistance, Accounting and Audit Standards)
Local Government and School Accountability Help Line ...............................(866)321-8503 or 408-4934
(Electronic Filing, Financial Reporting, Justice Courts, Training)
New York State Retirement System
Retirement Information Services
Inquiries on Employee Benefits and Programs..................................................................474-7736
Bureau of Member and Employer Services ..............................................(866)805-0990 or 474-1101
Monthly Reporting Inquiries ....................................................................................................474-1080
Audits and Plan Changes ..........................................................................................................474-0167
All Other Employer Inquiries ....................................................................................................474-6535
Division of Legal Services
Municipal Law Section .........................................................................................................................474-5586
Other OSC Offices
Bureau of State Expenditures ..........................................................................................................486-3017
Bureau of State Contracts ...................................................................................................................474-4622
(Area code for the following is 518 unless otherwise specified)
32 Division of Local Government and School AccountabilityOffice of the State Comptroller
DirectoryRegional Office
Division of Local Government and School Accountability
Andrew A. SanFilippo, Executive Deputy Comptroller
Gabriel F. Deyo, Deputy Comptroller (518) 474-4037
Nathaalie N. Carey, Assistant Comptroller
Cole H. Hickland, Director • Jack Dougherty, Director
Direct Services (518) 474-5480
BINGHAMTON REGIONAL OFFICE - H. Todd Eames, Chief Examiner
State Office Building, Suite 1702 • 44 Hawley Street • Binghamton, New York 13901-4417
Tel (607) 721-8306 • Fax (607) 721-8313 • Email: Muni-Binghamton@osc.state.ny.us
Serving: Broome, Chenango, Cortland, Delaware, Otsego, Schoharie, Sullivan, Tioga, Tompkins counties
BUFFALO REGIONAL OFFICE – Jeffrey D. Mazula, Chief Examiner
295 Main Street, Suite 1032 • Buffalo, New York 14203-2510
Tel (716) 847-3647 • Fax (716) 847-3643 • Email: Muni-Buffalo@osc.state.ny.us
Serving: Allegany, Cattaraugus, Chautauqua, Erie, Genesee, Niagara, Orleans, Wyoming counties
GLENS FALLS REGIONAL OFFICE - Jeffrey P. Leonard, Chief Examiner
One Broad Street Plaza • Glens Falls, New York 12801-4396
Tel (518) 793-0057 • Fax (518) 793-5797 • Email: Muni-GlensFalls@osc.state.ny.us
Serving: Albany, Clinton, Essex, Franklin, Fulton, Hamilton, Montgomery, Rensselaer, Saratoga, Schenectady, Warren, Washington counties
HAUPPAUGE REGIONAL OFFICE – Ira McCracken, Chief Examiner
NYS Office Building, Room 3A10 • 250 Veterans Memorial Highway • Hauppauge, New York 11788-5533
Tel (631) 952-6534 • Fax (631) 952-6530 • Email: Muni-Hauppauge@osc.state.ny.us
Serving: Nassau, Suffolk counties
NEWBURGH REGIONAL OFFICE – Tenneh Blamah, Chief Examiner
33 Airport Center Drive, Suite 103 • New Windsor, New York 12553-4725
Tel (845) 567-0858 • Fax (845) 567-0080 • Email: Muni-Newburgh@osc.state.ny.us
Serving: Columbia, Dutchess, Greene, Orange, Putnam, Rockland, Ulster, Westchester counties
ROCHESTER REGIONAL OFFICE – Edward V. Grant Jr., Chief Examiner
The Powers Building • 16 West Main Street – Suite 522 • Rochester, New York 14614-1608
Tel (585) 454-2460 • Fax (585) 454-3545 • Email: Muni-Rochester@osc.state.ny.us
Serving: Cayuga, Chemung, Livingston, Monroe, Ontario, Schuyler, Seneca, Steuben, Wayne, Yates counties
SYRACUSE REGIONAL OFFICE – Rebecca Wilcox, Chief Examiner
State Office Building, Room 409 • 333 E. Washington Street • Syracuse, New York 13202-1428
Tel (315) 428-4192 • Fax (315) 426-2119 • Email: Muni-Syracuse@osc.state.ny.us
Serving: Herkimer, Jefferson, Lewis, Madison, Oneida, Onondaga, Oswego, St. Lawrence counties
STATEWIDE AUDIT - Ann C. Singer, Chief Examiner
State Office Building, Suite 1702 • 44 Hawley Street • Binghamton, New York 13901-4417
Tel (607) 721-8306 • Fax (607) 721-8313
New York State
Office of the State Comptroller
Division of Local Government and School Accountability
110 State Street, 12th Floor • Albany, New York 12236
J:\DRedsicker\AGENDAS\City Admin Comm\2015\10-21 - Agenda.docx 10/21/15
2.City Administration, Human Resources, and Policy
.5 Approval of City/Town Fire Contract
WHEREAS, the existing agreement between the Town of Ithaca and the City of Ithaca by which the
Ithaca Fire Department provides service to the Town of Ithaca is set to expire on December 31, 2015,
and
WHEREAS, the City and Town previously extended the contract from a December 31, 2014 expiration
to the current December 31, 2015 expiration in order to permit ongoing negotiations to complete, and
WHEREAS, after negotiating for well in excess of one year, negotiators for the City and the Town
recommend bringing the negotiations to a conclusion at this time so as to avoid the necessity of an
additional extension, and
WHEREAS, throughout the negotiations, the Town’s negotiators insisted on identifying cost savings to
reduce the Town’s cost under this contract, and
WHEREAS, throughout the negotiations, the City’s negotiators insisted on maintaining current levels of
service in the face of proposed cost saving measures, and
WHEREAS, the Town identified and insisted upon the incentivizing of a volunteer firefighting program,
as a cost saving measure that could nonetheless maintain current levels of service and current levels of
professional firefighter staffing, and
WHEREAS, the resulting clause is reflected in section 13(a) of the accompanying proposed contract,
requiring the recruitment of five volunteer firefighters for every one paid firefighter in excess of sixty-
five positions in the Department, including administrative staff, and
WHEREAS, the Department is currently staffed with sixty-three funded positions, including
administrative staff but not including the fraction of a position represented by the contractual services
purchased in lieu of a Deputy Chief; now, therefore, be it
RESOLVED, That the Mayor, upon review by the City Attorney, is hereby authorized to execute an
agreement substantially as included herewith, and with such exhibits as may be recommended by the
City Controller and the City Attorney, setting a new term for this contract to expire on December 31,
2019.
City-Town of Ithaca Fire Contract
FINAL 10/8/15
page 1
THIS AGREEMENT
Made as of the day of , 2015 , by and between THE CITY OF
ITHACA, Tompkins County, New York, (hereinafter referred to as the “City”), party of
the first part, and THE TOWN BOARD OF THE TOWN OF ITHACA, (hereinafter
referred to as the “Town”, acting as and for the Fire Protection District of the said town.
WITNESSETH:
WHEREAS, the party of the first part is the governing Board of the Municipal Fire
Department and Common Council of the City of Ithaca, and has under its cont rol and
custody personnel and fire fighting equipment of said Department, and
WHEREAS, there has been duly established in said Town a fire protection district
known as “Town of Ithaca Fire Protection District”, embracing all of the territory in said
Town, except the Village of Cayuga Heights, and
WHEREAS, following a public hearing duly held pursuant to New York Town Law
§ 184, said Town was duly authorized to contract with the party of the first part for fire
protection and emergency medical service to the portion of said district hereinafter
defined, upon the terms and provisions herein set forth;
NOW, THEREFORE, IT IS MUTUALLY AGREED as follows:
1. Provision of Services. The City shall provide for the portions of the Town of
Ithaca Fire Protection District covered by this Agreement fire protection services and
emergency medical services equal in level, types and quality to the services the Ithaca
Fire Department provides throughout the City. The Ithaca Fire Department shall, to the
best of its ability perform its services using the methods, equipment and apparatus,
numbers of personnel, timing, and degree of skill and care ordinarily exercised under
similar conditions by experienced, competent and reputable fire departments operating
City-Town of Ithaca Fire Contract
FINAL 10/8/15
page 2
in the same or similar locality at the time of performance. The Ithaca Fire Department
shall, to the best of its ability keep its facilities, apparatus and equipment in good
working condition at all times. The City and Ithaca Fire Department shall comply with all
applicable laws and regulations in carrying out their duties under this Agreement.
The portions of the Town of Ithaca Fire Protection District covered by this Agreement
are hereafter referred to as the “Town of Ithaca Covered Area” and are described as
follows:
ALL of the Town of Ithaca, excepting the following areas:
(a) The Village of Cayuga Heights;
(b) The northeast section of the Town of Ithaca that is situated east of the east
boundaries of the Village of Cayuga Heights and the City of Ithaca, south of the
Village of Lansing/Town of Ithaca boundary, west of the Town of Dryden/Town of
Ithaca boundary and north of a line described as follows: Beginning at a point
where Forest Home Drive intersects the east boundary of the City of Ithaca with
the Town of Ithaca, thence southerly along the Town/City line approximately 250
feet to the westerly end of a dead-end service road running behind the
Plantations Service Building, thence easterly along the toe of a slope of an uphill
grade to the south, crossing Judd Falls Road and Caldwell Road and continuing
easterly and southeasterly to a point along the center of the elevated grade that
runs between the Arboretum Road and New York State Route 366, thence
northerly and northeasterly to a point at the northwest corner of the parking area
attached to the former Cornell University Transit Facility, and thence northerly to
the point where Forest Home Drive crosses the boundary line between the
Towns of Ithaca and Dryden.
City-Town of Ithaca Fire Contract
FINAL 10/8/15
page 3
Such southerly line is more particularly shown on the map attached as EXHIBIT
A by the dashed line running generally easterly from the Town of Ithaca/City of
Ithaca boundary to the Town of Ithaca/Town of Dryden boundary.
Generally, the intent is to exclude from the service area those buildings and
properties generally accessed from Plantations Road and north, and to include in
the service area those buildings and properties that are generally accessed from
Tower Road, from Judd Falls and Caldwell Roads south of Plantations Road, or
accessed from NYS Route 366, and south.
The Cornell University Filtration Plant is excluded from the area to be serviced
under this Agreement (this exclusion being the only change in territorial coverage
in this Agreement compared to the January 1, 1995, agreement bet ween the
parties).
The parties agree that the Town may, on 30 days’ written notice to the City, and without
the approval of the City, eliminate from the Town of Ithaca Covered Area any lands that
the Town may from time to time omit from the Town of Ithaca Fire Protection District,
provided, however, that such elimination shall not alter the calculation of the Town’s
total taxable assessed valuation of real properties in the Town of Ithaca Covered Area ,
as calculated in Section 5(b) hereof, which calculation shall be completed as if such
elimination had not occurred.
2. Fire Hydrants.
(a) To aid in the determination of hydrant and water source locations with
reference to particular alarms, the Town shall furnish to the City the most recently
available map of all areas of the Town having hydrant service, showing hydrant
locations, normal static hydrant pressure, hydrant flows, static water sources, streets
and highways, location and addresses of improved properties with hydrants and the
identity of the owner thereof. It shall be the sole responsibility of the Town of Ithaca to
City-Town of Ithaca Fire Contract
FINAL 10/8/15
page 4
provide the City with updated changes in hydrant locations, static sources, and to the
related data set forth herein, immediately as they occur. Revised maps reflecting such
changes shall be provided at least quarterly. The Ithaca Fire Department shall be
entitled to rely on such map and shall not be responsible for any inaccuracies therein.
(b) The Town of Ithaca shall perform all water system testing required by the
Insurance Services Organization (ISO), at the frequency specified. The Town will adopt
and maintain the NFPA color coding system indicating hydrant flows.
(c) The Town of Ithaca shall provide information on any impaired hydrant or
system as soon as practicable after the Town becomes aware of the impairment, and
on any new or modified installation that does not meet minimum standards as specified
by the American Water Works Association (AWWA), the National Fire Protection
Association (NFPA), or the New York State Uniform Fire Prevention and Building Code.
(d) The Town shall maintain an inventory of replacement hydrants adequate to
insure timely replacement of damaged hydrants when necessary.
(e) For purposes of maintenance and testing, any hydrant use by the Ithaca Fire
Department shall be according to procedures established by the Town and/or the
Southern Cayuga Lake Intermunicipal Water Commission (Bolton Point).
3. Use of Mutual Aid. The City warrants and covenants that as soon as a
serious fire or other emergency results in a situation that could potentially leave the
Town of Ithaca Covered Area without adequate coverage from the Ithaca Fire
Department, the City, through its Fire Department, shall immediately seek protection
through the Tompkins County mutual aid assistance agreement dated September 12,
1955, updated July, 1993 as it may be amended or renewed from time to time, which
provides coverage to the Town of Ithaca through deployment of equipment and/or
personnel brought into the City or the Town of Ithaca pursuant to the City’s request for
mutual aid.
City-Town of Ithaca Fire Contract
FINAL 10/8/15
page 5
4. Term.
(a) The term of this Agreement shall be the date of execution of this agreement
through December 31, 2019, with an annual review to be held jointly by both parties no
later than August 15, 2016, and August 15 of each subsequent year of this Agreement
(2017, 2018, and 2019 ). The purposes of the annual review are to clarify any confusion
in the Agreement, review expenditures, propose any changes to the Agreement and
discuss any changes in Fire Department operations and costs regarding the provision of
the services cited in this Agreement for the next year.
(b) Upon 60 days written notice by either party of a need for a modification other
than the modification described in paragraph 4 (a), the parties may agree to re-enter
negotiation for the purpose of making such change or modification as may be agreed
upon.
5. Payments by Town.
The Town shall pay the City the following annual sums for the City’s services
under this Agreement:
2015: $ 3,177,504
2016: $ 3,241,055
2017: $ 3,305,876
2018: $ 3,371,994
2019: $ 3,439,433
City-Town of Ithaca Fire Contract
FINAL 10/8/15
page 6
The Town shall pay each annual sum in twelve (12) equal monthly payments.
Each monthly payment shall be due by the fifteenth (15th) day of that month.
The parties agree that the annual sums set forth above for the years 2015 - 2019
shall be adjusted pursuant to the following methodology. The parties agree to amend
this Agreement accordingly and in as expeditious a fashion as possible to s tate the
adjusted sums once they are agreed upon. Under no circumstances shall the total
amount paid by the Town in any calendar year, plus any adjustment for that year paid in
the subsequent year, exceed the annual budgeted amount for Net Expenditures
(defined in Section 5(f)(i) below and approved by the Town in Section 6 below) without
the Town’s prior written approval of any budget changes resulting in such increase.
(a) Net Expenditures. The Town’s annual sums for the years 2011 -2014 shall be
adjusted upward or downward by the amount of any Town underpayment or
overpayment, as the case may be, for the preceding year. Each year, the Town’s
Percentage Share (defined in Section 5(d) below) of the preceding year’s annual Net
Expenditures for the Ithaca Fire Department shall be calculated as set forth below in
Sections 5(b) et. seq.
On or before the 10th of each month, the City shall supply to the Town a
statement in substantially the form annexed hereto as EXHIBIT B certified by the Fire
Chief or City Controller as being true and correct detailing the actual revenues and
expenditures of the Ithaca Fire Department for the preceding month. The actual annual
Net Expenditures for a calendar year will be determined by March 31 of the subsequent
calendar year, with a corresponding adjustment being made in the next monthly
payment after the Agreement is amended to reflect the adjustment. Any additional
recommended or required adjustments resulting from any State Comptroller’s audit, the
City Controller’s report, or an independent auditor’s report shall become the subject of
review, discussion and agreement between the parties prior to any such adjustment
being reflected in any subsequent payment. This Agreement shall be amended as soon
as possible once adjustments are agreed upon to reflect all adjustments.
City-Town of Ithaca Fire Contract
FINAL 10/8/15
page 7
The City shall maintain records and accounts of all activity, income, expenses,
receipts and payments relating to the Ithaca Fire Department, which accounts shall
include, at a minimum, all of the line items set forth in the Year 2015 Ithaca Fire
Department budget attached to this Agreement as EXHIBIT C. The City shall also
supply a list of applicable budget codes detailing the nature of the budget lines set forth
in EXHIBIT C. The City, upon prior reasonable notice, shall provide the Town and its
agents access to the City’s accounting books, records, accounts, payroll documents
and facilities that are directly pertinent to this Agreement for the purposes of examining,
auditing, and inspecting all accounting books, records, work data, documents, and
activities related to this Agreement. The City shall maintain such books, records, data
and documents in accordance with generally accepted accounting principles and shall
clearly identify and make such items accessible to the Town and its agents during the
City’s performance under this Agreement and for a period of six (6) years from the date
of the Town’s final payment. The City shall permit the Town and its agents to reproduce
documents or excerpts of documents by photocopying or electronic means, provided
that the Town shall reproduce such documents on the City’s premises unless it receives
prior consent from the City to do so off-site.
The City will provide the Town with a copy of the City Controller’s annual financial
report for the Ithaca Fire Department within 120 days of the close of the calendar year
unless the time is extended by mutual written agreement. The City shall provide to the
Town copies of an annual independent auditor’s report and any State Comptroller’s
audit report that includes Ithaca Fire Department operations within 14 days of receipt of
such reports. All adjustments for each municipality’s share shall be finalized as each
final report is received, subject to the parties’ review and discussion as set forth above.
Upon expiration of this Agreement or if this Agreement terminates early, instead
of applying adjustments to future payments, the adjustments shall be made in cash from
one party to the other no later than June 1 imme diately following the March 31
finalization of actual costs, and with respect to adjustments flowing from final figures as
City-Town of Ithaca Fire Contract
FINAL 10/8/15
page 8
determined by the State Comptroller, the City Controller, and/or the independent
auditor, within one month of the date of receipt of the final report from each of said
persons or entities, respectively.
(b) The total taxable assessed valuation of real properties in the City shall be
combined with the total taxable assessed valuation of real properties in the Town of
Ithaca Covered Area. Such amounts are hereinafter referred to as the “Combined
Taxable Assessed Valuation”. The Combined Taxable Assessed Valuation shall be
calculated and agreed upon by the parties as close as reasonably possible to
September 1 of each year.
(c) The portion of the Combined Taxable Assessed Valuation located within
the Town of Ithaca Covered Area shall be divided by the total Combined Taxable
Assessed Valuation. The result is referred to hereinafter as the “Town’s Percentage”.
(d) The Town’s Percentage shall be multiplied times the Net Expenditures for
the preceding year, and the resulting figure shall be deemed the Town’s Percentage
Share. The difference between the Town’s Percentage Share and the annual sum
stated above for the relevant year shall constitute the adjustment described in this
Section.
(e) An example of the foregoing calculation is as follows: Assume the annual
sum for year X is $1,800,000. Assuming the yearly Net Expenditures (which number
includes debt service but excludes depreciation) determined by March 31 of the
subsequent calendar year is equal to $5,500,000, and assuming that the taxable
assessed valuation of real property in the Town of Ithaca Covered Area is $120,000,000
and the taxable assessed valuation of real property in the City is $240,000,000, the
Combined Taxable Assessed Valuation will be $360,000,000 ($120,000,000 plus
$240,000,000), the Town’s Percentage will be 33.33% ($120,000,000 divided by
$360,000,000) and the Town’s Percentage Share of year X’s Net Expenditures will be
$1,833,150 (33.33% x $5,500,000). The parties will then amend the Agreement as
City-Town of Ithaca Fire Contract
FINAL 10/8/15
page 9
soon as possible to reflect the adjustment of $33,150, and that amount is added to the
Town’s next monthly payment following amendment of the Agreem ent. Under other
scenarios, the difference between the Town’s Percentage Share and the annual sum
may be a negative number, in which case the Town shall receive a credit on its next
monthly payment following amendment of the Agreement.
(f) For the purpose of this Agreement (including paragraphs 5(b) through 5 (e)
above) the following terms shall have the following meanings:
(i) The term “Net Expenditures” shall mean the actual expenditures of the
Ithaca Fire Department including the items set forth in the budget
discussed below, less all revenues received by the City for Fire
Department operations except for the Town’s payments pursuant to this
Agreement and except for general tax revenues raised by City taxes. The
following matters shall govern the calculation of “Net Expenditures”:
(A) There will be included in revenues any amounts received by the
City or the Town from any contributions from Cornell University and
Ithaca College for fire protection, emergency medical services, or
similar services, contributions from any other tax-exempt entity
provided for fire protection or emergency medical services, refunds,
gifts, grants, state or federal aid related to the Ithaca Fire
Department, income from the sale of Fire Department assets, code
and any other inspection fees or enforcement revenues related to
services performed by Fire Department personnel, rental income,
and any other forms of income payable to the Fire Department, to
the City, or to any other entity associated with either, for Fire
Department-related activities or expenses.
(B) Only expenses relating directly to the operation of the Ithaca
Fire Department shall be included in Net Expenditures (e.g.,
City-Town of Ithaca Fire Contract
FINAL 10/8/15
page 10
equipment purchase and maintenance, building purchase,
renovation or maintenance, salaries and fringe benefits of Fire
Department personnel, gasoline, supplies, and other items directly
related to the operation of the Fire Department).
(C) To the extent there is equipment or buildings that are used by
the Ithaca Fire Department and by other City departments or
personnel, there shall be a reasonable allocation of the expenses
related to such equipment or buildings between Fire Department
and non-Fire Department uses, with only the portion attributable to
the Fire Department to be included when determining Net
Expenditures. Occasional use by other entities (City or otherwise)
or for other purposes such as for a polling place, SWAT Team
exercise facility, or similar occasional uses that are not inconsistent
with Fire Department use, do not require allocation.
(D) Both parties understand that there are general City overhead
expenses outside of the internal Ithaca Fire Department
administrative services that are required to operate the Fire
Department. These are expenses from the Mayor's office,
engineering, finance, City Clerk, City Chamberlain, information
technology, City Attorney, and human resources. These expenses
shall be considered administrative fees. The Town shall pay the
City $174,495 for its share of such administrative fees for the year
2015. For each subsequent year, the Town’s payment for
administrative fees shall increase by the same percentage as the
percent increase in the Ithaca Fire Department budget. The
administrative fees are included in the annual sums listed for the
years 2015-2019 at the beginning of paragraph 5, and the Town
shall pay the City this fee in equal installments on a monthly basis
as part of its annual sum payments.
City-Town of Ithaca Fire Contract
FINAL 10/8/15
page 11
(E) In addition to the amounts included in Net Expenditures
pursuant to subparagraphs (A) through (D) above and subject to
the provisions of subparagraphs (F) through (H) below, there shall
be included in Net Expenditures any required debt service
payments related to equipment and/or buildings dedicated solely to
Ithaca Fire Department use, provided that the debt service relates
to bonds or notes issued for a period equal to the period of
probable usefulness for the capital item as determined by the Local
Finance Law of the State of New York (presently Section 11.00 of
such Local Finance Law), unless the Town consents to a shorter
period.
(F) No depreciation shall be included in the calculation of Net
Expenditures.
(G) Net Expenditures include (I) actual expenses incurred by the
City, and not reimbursed from bonds or other forms of debt, to pay
for equipment (including capital renovations to existing equipment)
and improvements (including renovations or additions to the Town
and City fire stations) and (II) the debt service expenses (principal
and interest payments) during the year for any debt in curred to pay
for equipment or improvements.
It is the intention that if equipment is purchased and paid for in cash
during the year, the entire cost of the equipment shall be included
in Net Expenditures. If equipment is purchased and paid for by
financing over a period of years, only the portion of debt paid during
the year shall be considered as part of Net Expenditures. There is
included in Net Expenditures any debt service during the year in
question related to purchases or construction in earlie r years of this
City-Town of Ithaca Fire Contract
FINAL 10/8/15
page 12
or any preceding contract, provided that no purchases or
construction incurred earlier than 1989 shall be so included.
(H) Expenditures out of grants received for purposes that would not
otherwise be authorized expenditures under the terms of this
Agreement may nevertheless be included in Net Expenditures up to
the amount of grant revenues received to cover such expenditures
(ii) The term “budget” means the budget prepared and formatted as set
forth in this Agreement in the form attached as EXHIBIT D with review by
the Town, which includes the revenues and expenditures authorized for
inclusion by the terms of this Agreement as the same is adjusted in each
succeeding year as set forth herein to reflect the actual expenses and
revenues of each year.
6. Review of Operating Budget. The City agrees to provide the Town with the
budget proposed to the Mayor by the Ithaca Fire Department by September 1 of each
year, and the Mayor’s proposed budget by the first Wednesday of October of eac h year.
The form of the budget shall include, at a minimum, all of the line items set forth in the
Year 2015 budget summary attached as EXHIBIT C. Any administrative expense or
charge set forth in the budget shall be substantiated by identifying the spec ific office or
officer performing the administrative service, the name of the incumbent presently in the
office performing the service, the nature of the service being provided, the cost of the
administrative service, and the rationale for its inclusion as part of the Ithaca Fire
Department budget if the individual performing the service is other than one of the staff
referred to in paragraph 13 below. No administrative expense resulting from services
performed by persons other than the staff referred to in paragraph 13 shall be included
in Net Expenditures unless the Town so consents in writing. The Town Board shall
have the opportunity to provide input to the Mayor and Council during the balance of the
budget deliberation process. The Town shall be not ified of, and have the opportunity to
attend and participate in, the Common Council budget meetings which may be held to
City-Town of Ithaca Fire Contract
FINAL 10/8/15
page 13
review and approve the Ithaca Fire Department’s capital and operating budgets. The
Fire Chief shall provide notice of such meetings as soon as they are scheduled.
7. Approval of Capital Budgets. The City agrees to provide the Town with the
capital improvement budget requests proposed to the Mayor by the Ithaca Fire
Department by September 1 of each year, and the Mayor’s proposed bu dget by the first
Wednesday of October of each year. The parties agree that capital renovations in
excess of $100,000 per project or aggregating in excess of $200,000 per annum, and
new station construction, shall be accomplished within a capital budget f or each project.
The budgets shall be approved by the appropriate governing body of each municipality
prior to commitments for construction or financing of any of such projects by the City.
For the purposes of this Agreement a “capital” expenditure or re novation shall mean any
improvement of a capital nature having a period of probable usefulness set forth in
Section 11.00 of the Local Finance Law.
(a) The replacement schedule for "heavy apparatus," e.g. engines, aerial
ladders, and heavy rescues, shall be based upon a 15 year useful life in front -line
service, with an additional five years as a reserve vehicle, for a total period of
usefulness of 20 years.
(b) EXHIBIT E shall project for the succeeding 50 years the proposed
replacement schedule for fire apparatus costing in excess of $100,000 per vehicle.
8. (a) Payment of Fire Department Expenses. No Ithaca Fire Department
expenses shall be paid out of any of the funds paid by the Town hereunder except upon
approved voucher or other similar d ocument per the approval process in the City Code.
No payments out of any funds paid by the Town hereunder shall be authorized in any
budget line in excess of the total amount of the Fire Department Budget until the budget
has been amended and the amendment approved by the Common Council. Without
limiting any other remedy of the Town, if payments are made in violation of this
City-Town of Ithaca Fire Contract
FINAL 10/8/15
page 14
provision, the Town may withhold future installments until there is compliance with this
provision.
(b) Maximum Equipment Expenditures. Expenditures in any year for new
equipment shall not exceed $200,000 absent the mutual written agreement of the
parties hereto prior to commitments for such purchases and financing of same.
9. Fire Stations in Town, Manner of Title, Lease, Reimbursement. Title to the
land for the existing fire stations located on South Hill at 965 Danby Road and West Hill
at 1240 Trumansburg Road in the Town was taken in the name of the Town and then
leased by the Town to the City by a Lease Agreement da ted July 14, 1989. The lease
is for 30 years at the rate of $1.00 per year, provided that the lease shall terminate upon
termination of this Agreement and payment by the Town of any remaining City
indebtedness on the premises. Title to the two existing stations constructed in the Town
was taken in the name of the City. Should this Agreement terminate at any time for any
cause (including a breach by the Town or termination or expiration of the Agreement),
upon termination the City will convey to the Town whatever interest it has in and to the
land, the two stations in the Town, and any other improvements to said real property.
Upon conveyance, the Town shall:
(a) reimburse the City for its 30% of the construction expenditures for said
stations paid by the City during the duration of the Lease Agreement; and
(b) pay to the City any remaining unpaid debt service obligations of the City
relating to the stations.
There shall be credited to the amounts owed from the Town to the City the 27%
contributions made by the Town to the City for the renovations of existing stations within
the City limits as set forth in the Lease Agreement.
City-Town of Ithaca Fire Contract
FINAL 10/8/15
page 15
The City shall convey its interest in said stations located within the Town to the
Town by such instruments as the attorneys for the Town may reasonably require, such
conveyance to be made within 30 days of demand for same, provided that such
conveyance by the City is not illegal. If illegal, the City will immediately take all
necessary steps to remove any legal impediment and will convey such stations as soon
as such impediments are removed. In any event, the City will within ten days of
demand for same by the Town, and pending legal title transfer, deliver immediate
possession and occupancy of such stations so that the To wn or any entity (such as a
fire company) may occupy and use same immediately for fire protection and emergency
medical service purposes. Such use and occupancy shall be granted without any
further compensation from the Town to the City. In the event of any breach of the
obligations to convey or to grant immediate occupancy, the Town may seek specific
performance in addition to any other remedies available to the Town under law or
equity.
For purposes of Section 3 of the Lease, this Agreement shall be considered a
renewal of the Fire Contract referred to in such section so that for the purposes of the
Lease there has been no termination of the Fire Contract which would require
termination of the Lease.
10. Insurance.
(a) The City as the lessee of the real property underlying the South Hill (Station
5) and West Hill (Station 6) fire stations shall provide adequate property insurance
coverage for the property and buildings during the duration of the lease. The cost of the
insurance shall be included in the annual operating budget of the Fire Department. The
City shall name the Town as an additional insured on said coverage. Proof of such
coverage is set forth as EXHIBIT F, and such coverage shall be maintained throughout
the term of this Agreement.
City-Town of Ithaca Fire Contract
FINAL 10/8/15
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(b) The City shall also procure and maintain the following insurance coverages
with limits of liability not less than the limits specified. Except for collision and
comprehensive and workers’ compensation and disability coverage, insurance
coverages shall not be provided by self -insurance.
(i) Commercial General Liability: including Premises/Operations,
Contractual Liability, Products/Completed Operations, Personal Injury and
Broad Form Property Damage--Occurrence Form required. The Town of
Ithaca and its officers, employees, board members, agents and elected
officials are to be included as Additional Insureds with respect to fire
protection and other related services rendered to the Town .
Each Occurrence: $ 1,000,000
Products/Completed Operations Damage Limit: $ 10,000,000
Personal and Advertising Injury Limit: $ 1,000,000
General Aggregate Limit: $ 10,000,000
Damage to Rented Premises (each occurrence): $ 100,000
Medical Expense: $ 5,000
(ii) Automobile Liability: $1,000,000 - Any Owned, Hired and Non-Owned
Autos. The Town of Ithaca and its officers, employees, board members,
agents and elected officials are to be included as Additional Insureds with
respect to fire protection and other related services rendered to the Town.
(iii) Umbrella Policy: $5,000,000 – Occurrence Form Required. Must state
Follow Form of General Liability and Automobile Liability Policies.
Statement regarding Follow Form coverage must be on certificate of
insurance.
(iv) Additional Specifications: All insurance shall be written with insurance
carriers licensed by the State of New York Insurance Department and
City-Town of Ithaca Fire Contract
FINAL 10/8/15
page 17
have a Best’s Rating of A XI or better. Prior to the execution of this
Agreement and throughout the term of the Agreement, the City shall
furnish the Town with written evidence from its insurer(s) of the insurance
coverage described herein through use of certificates of insurance
acceptable to the Town. Broker signature is not acceptable. All
certificates shall contain a thirty (30) day notice of cancellation, non -
renewal or material change to the Town of Ithaca. The City shall not take
any action to cancel or materially change any of the insurance required
under this Agreement without the Town’s prior written app roval of such
cancellation or change. The foregoing insurance coverage is not intended
to nor does it limit the liability of the City to hold the Town harmless.
(v) Proof of the coverage required by this subparagraph b is set forth as
EXHIBIT G and such coverage shall be maintained throughout the term of
this Agreement.
11. Equipment Reimbursement. Upon termination of the Agreement for any
cause the Town shall be entitled to receive 30% of those items of equipment which
originally cost $25,000.00 or more, or 30% of the dollar value of such equipment
purchased by the City during the term of this Agreement reduced by the depreciation on
such equipment. For this purpose equipment so purchased shall be depreciated on a
straightline basis over fifteen years assuming a 20% residual value. To the extent
feasible the equipment to be transferred to the Town will be the equipment located in
the stations located within the Town. Such conveyance shall be by such appropriate
documentation such as bills of sale, vehicle registration, etc. as may be reasonably
required by the attorneys for the Town. If the City fails to transfer such items, the Town
may seek specific performance in addition to any other remedies available to the Town
under law or equity.
12. Contributions from Tax Exempt Entities. The City agrees to include in the
revenues included to calculate Net Expenditures the total cash contributions made by
City-Town of Ithaca Fire Contract
FINAL 10/8/15
page 18
Cornell University and Ithaca College to the City or Town for fire protection and
emergency medical services and paid each year of this Agreement. Any amounts for
fire protection and emergency medical services received from Cornell University as per
the Memorandum of Understanding (MOU) dated October 21, 2003, and signed on
12/22/2003, between the City and Cornell University, or other subsequent agreement,
or Ithaca College in the future shall be included in the calculation of Net Expenditures.
Additionally, elected representatives from the City and the Town agree to meet regularly
to continue joint discussions with Cornell University and Ithaca College in the interest of
deriving contributions, be they monetary, in-kind, or a combination thereof, that bear a
direct relation to the fire and emergency medical services provided to those institutions.
It shall be the responsibility of the elected representatives to report the results of the
discussions to their respective governing bodies. It is also understood that any in -kind
contributions from tax-exempt entities will accrue to the direct benefit of the cost of
operating fire protection and emergency medical services (i.e., the entire monetary
value of in-kind contributions must be included as revenues to calculate Net
Expenditures), without any apportionment between the Town and City.
13. Staffing Levels.
(a) As of July 1, 2015, the number of paid career personnel in the Ithaca Fire
Department used as a basis for determining shared costs under this Agreement is 47
permanent firefighters, eight lieutenants, six assistant chiefs, one deputy chief, one fire
chief, and one administrative coordinator, for a total of sixty-four positions. In the event
that the City proposes to approve additional positions, such positions must be approved
in writing by the parties hereto and made an amendment to thi s Agreement in order to
be considered as a shared cost. Should the City choose to add any positions which are
not approved in writing by the Town, all costs relating thereto will be borne solely by the
City. Should the Town request the addition of any pa id positions or paid career
personnel which are not approved in writing by the City, all costs relating thereto will be
borne solely by the Town. Unless the Town agrees in writing to a lesser level of
staffing, the City agrees that each of the two fire stations located in the Town of Ithaca
City-Town of Ithaca Fire Contract
FINAL 10/8/15
page 19
will be staffed in the same manner as individual stations in the City. Any staff added in
excess of one position beyond the 2015 shared-cost level (i.e., any additions in excess
of sixty-five positions, including administrative staff) shall be approved only with the
concurrent addition of five volunteers per such addition, at least two of which shall
intend to become interior fire fighters.
(b) Fire Prevention Bureau
The City and Town of Ithaca agree further to explo re the potential to eliminate
from the workload of the Fire Prevention Bureau those inspections permitted by N.Y.
Education Law § 807-b(7).
14. Town Representation on Fire Commission. The total membership of the
Board of Fire Commissioners shall be five, two of which shall be representatives of the
Town of Ithaca Fire Protection District appointed by the Mayor of the City from names
recommended by the Town Board of the Town of Ithaca. No persons shall be
appointed as the Town representatives unless recommended by the Town Board.
15. Indemnity. The City shall defend, indemnify, and hold the Town, its elected
officials, public officers, employees, boards and agents harmless from all damages,
losses, claims, actions and lawsuits by third parties (including those asserted or brought
by Ithaca Fire Department employees and volunteers) with regard to for personal injury,
death, property damage (including loss of use), contamination of or adverse effects to
the environment, or other damages or losses caused by or claimed to be caused by, or
arising from or claimed to arise from, the City’s answering of calls for fire protection or
emergency medical services in the Town or other provision of services related to this
Agreement, or arising out of this Agreement in any other way. Such indemnity shall
include settlements and reasonable costs of defending such claims, including attorney’s
fees. To the extent the Town is negligent, the City’s indemnification shall not extend to
the proportion of loss attributable to the Town's negligence. The City’s indemnification
also shall not extend to the proportion of loss attributable to the Town's negligence in
the event of payments to injured firefighters or representatives of deceased firefighters
City-Town of Ithaca Fire Contract
FINAL 10/8/15
page 20
under the Workers Compensation Law, General Municipal Law, or other New York
statutes, where the aforementioned laws allocate liability to the Town for such
payments. The obligation to indemnify shall survive termination of this Agreement
whatever the cause of such termination . Indemnification shall be provided for all acts,
failures to act, or occurrences occurring during the term of this Agreement (e.g., the
City shall provide such indemnification for any claims made with respect to actions by
the City prior to the termination of this Agreement even if the claim itself is not made
until after termination of the Agreement).
16. Exculpation. Nothing herein contained shall be deemed to limit in any lawful
way any lawful right of the Board of Fire Commissioners, the City, t he Town, or any
member of the Ithaca Fire Department provided by the general statutes of the State of
New York, provided that this provision shall not be deemed to abrogate or modify any
rights or obligations provided for in this Agreement.
17. Authority of Chief. It is specifically understood and agreed that the number
of personnel, the amount and type of apparatus and equipment dispatched in answer to
a fire call or to an emergency medical services call, the manner of fighting the fire, or
handling the medical services, and other operations upon the scene of the fire or
medical emergency, are matters within the judgment of the Fire Chief of the City of
Ithaca Fire Department (the “Chief”) or the Chief's designees. The City and its officers
shall use sound professional judgment based on generally accepted standards in the
provision of its fire protection, emergency medical, emergency, and non -emergency
services provided pursuant to this Agreement. The word “Chief” shall mean the person
duly appointed to that office in the Ithaca Fire Department by the Mayor of the City.
18. Payment of moneys from Foreign Insurance Companies . The payment by
the Town to the City of moneys collected by or received from foreign insurance
companies writing property insurance in the Town of Ithaca Fire District for the benefit of
the active firefighters serving the Town of Ithaca Covered Area shall be governed by a
separate agreement between the parties.
City-Town of Ithaca Fire Contract
FINAL 10/8/15
page 21
19. Audits. The Town reserves the right to cause an audit of Cit y accounts
related to this Agreement on demand. If an overpayment error equal to or exceeding
5% of the Town’s share is not found after final settlement of the preceding year, such
audit shall be done at the expense of the Town. If an overpayment error e qual to or
exceeding 5% of the Town’s contract share is found after final settlement of the
preceding year, the City shall pay for such audit. (An overpayment error in this context
is defined as a calculation of the Town’s contribution that resulted, or w ould have
resulted, in an overpayment by the Town.)
20. Building Code and Parking Enforcement. The parties agree that each party
shall have the respective rights, obligations, and duties with respect to enforcement of
the Uniform Fire Prevention and Building Code set forth herein.
(a) The Town of Ithaca shall provide to the Ithaca Fire Chief reports of all fire
safety inspections conducted on premises within the Town of Ithaca Covered Area.
(b) The Town of Ithaca shall provide for the review and recommendation for
approval, or not, by the Chief of the Ithaca Fire Department or designee all plans and
proposals requiring Fire Department access.
(c) The City’s issuance and prosecution of tickets for fire lane and handicapped
parking violations in the Town shall be governed by a separate agreement between the
parties.
21. Termination. Notwithstanding any other provision contained herein, either
party may terminate this Agreement by giving written notice of such intention to
terminate to the other party to be received by the other party at least one full calendar
year prior to the date of intended termination. If the Town is the terminating party, it
must hold a public hearing pursuant to New York Town Law § 184(8) before it gives
written notice of its intention to terminate.
City-Town of Ithaca Fire Contract
FINAL 10/8/15
page 22
22. Written Notice. Where notification is required by this Agreement to be given
to a party, it shall be in writing and shall be delivered to the Town Supervisor (if the
notice is to the Town), or the Ithaca Fire Department Fire Chief, who shall notify the
Mayor and Chair of the Board of Fire Commissioners (if the notice is to the City), with
delivery by hand, certified mail, or a commercial courier service to the other party at the
addresses shown above or such other add ress as is hereafter designated in writing by
that party. Notice of a change of address must be made in the same manner as other
notices. Notices shall be deemed given when they are received.
23. Workers Compensation and Disability Insurance. If the City ceases to self-
insure for workers’ compensation and/or disability coverage, the City shall present to the
Town proof that the City provides the levels of workers’ compensation and/or disability
coverage required by the State of New York.
24. Independent Contractor. The City will be at all times an independent
contractor and not an agent for the Town. The City shall be fully responsible for all acts
and omissions of its employees, volunteers, subcontractors, and suppliers, and
specifically will be responsible for sufficient administration and supervision to ensure
compliance in every respect with the Agreement requirements. There will be no
contractual relationship between any subcontractor or supplier and the Town by virtue
of this Agreement with the City. No provision of the Agreement will be for the benefit of
any party other than the Town and City. The City, and not the Town, is the employer of
its employees and is responsible for their wages, hours, benefits, worker's
compensation, social security, and all other incidents of employment.
25. No Assignment. This Agreement may not be assigned by the parties.
26. Binding Nature of Agreement. This Agreement is binding upon the parties
and their respective representatives and successors.
City-Town of Ithaca Fire Contract
FINAL 10/8/15
page 23
27. Governing Law, Jurisdiction, and Enforcement. This Agreement is made in
New York, and shall be construed under the laws of the State of New York without
regard to, or the application of, New York State’s choice of law provisions. Both parties
consent that if any action is brought to enforce this Agreement, it shall be brought in an
appropriate Court in Tompkins County, New York, and both parties consent to the
jurisdiction of such court.
28. Entire Agreement. This Agreement constitutes the entire agreement
between the parties and supersedes any and all prior written or oral agreements,
negotiations or understandings, existing between the parties. This Agreement may be
amended only by written instrument signed by each party and only after the Town holds
a public hearing pursuant to New York Town Law § 184(8) and after the City follows
relevant City and/or state laws and procedures.
29. Survival. All obligations arising prior to the termination of this Agreement
and all provisions of this Agreement allocating responsibility or liability between the City
and the Town shall survive the completion of services hereunder and the termination of
this Agreement.
30. Severability. If any provision of this Agreement is deemed to be invalid or
inoperative for any reason, that part may be modified by the parties to the extent
necessary to make it valid and operative, or if it cannot be so modified, then it shall be
deemed severed, and the remainder of this Agreement shall continue in full force and
effect as if this Agreement had been signed with the invalid portion so modified or
eliminated.
Instrument to be executed by their duly authorized officers as of the day and year first
above written.
CITY OF ITHACA
City-Town of Ithaca Fire Contract
FINAL 10/8/15
page 24
______________________________________ __________________
Svante L. Myrick, Mayor Date
TOWN OF ITHACA TOWN BOARD
______________________________________ __________________
Herbert J. Engman, Town Supervisor Date
______________________________________ __________________
Richard DePaolo, Councilman Date
______________________________________ __________________
William Goodman, Councilman Date
______________________________________ __________________
Tee-Ann Hunter, Councilwoman Date
______________________________________ __________________
Patricia Leary, Councilwoman Date
______________________________________ __________________
Eric Levine, Councilman Date
______________________________________ __________________
Rod Howe, Councilman Date
City-Town of Ithaca Fire Contract
FINAL 10/8/15
page 25
STATE OF NEW YORK )
COUNTY OF TOMPKINS ) SS.:
On the ______ day of ______________ in the year 20 15 before me, the undersigned,
personally appeared Svante L. Myrick, personally known to me or proved to me on the
basis of satisfactory evidence to be the individual whose name is subscribed to the
within instrument and acknowledged to me that she executed the same in her capacity,
and that by her signature on the instrument, the individual, or the person upon behalf of
which the individual acted, executed the instrument.
_______________________________
Notary Public
STATE OF NEW YORK )
COUNTY OF TOMPKINS ) SS.:
On the ______ day of ______________ in the year 20 15 before me, the undersigned,
personally appeared Herbert J. Engman, Supervisor of the Town of Ithaca, Richard
DePaolo, Councilman of the Town of Ithaca, William Goodman, Councilman of the
Town of Ithaca, Tee-Ann Hunter, Councilwoman of the Town of Ithaca, Patricia Leary,
Councilwoman of the Town of Ithaca, Eric Levine, Councilm an of the Town of Ithaca,
and Rod Howe, Councilman of the Town of Ithaca, personally known to me or proved to
me on the basis of satisfactory evidence to be the individuals whose names are
subscribed to the within instrument and acknowledged to me that they executed the
same in their capacities, and that by their signatures on the instrument, the individuals,
or the person upon behalf of which the individuals acted, executed the instrument.
City-Town of Ithaca Fire Contract
FINAL 10/8/15
page 26
_______________________________
Notary Public
J:\DRedsicker\AGENDAS\City Admin Comm\2015\10-21 - Agenda.docx 10/21/15
2. City Administration, Human Resources, and Policy
.6 Attorney - City-County Law Enforcement Consolidation
WHEREAS, the City of Ithaca and Tompkins County have long worked together as part of an ongoing
effort to reduce redundancies, increase efficiency, and alleviate the tax burden on their residents, and
WHEREAS, the protection of life and property is one of the most vital, and most costly, functions of
government at all levels, and
WHEREAS, that public function is fulfilled in Tompkins County through a number of police agencies,
the largest of which are the Ithaca Police Department and the Tompkins County Sheriff’s Office, and
WHEREAS, the City of Ithaca and Tompkins County have allocated $16,780,212 in their respective
2015 budgets, representing 25% of the combined property tax levies of the City and County, to support
their respective police agencies, and
WHEREAS, since the 1950’s, cities and counties across the country have successfully consolidated
municipal and county police services as a way to decrease costs and improve the quality of the services
offered to residents, and
WHEREAS, the implementation of police services on a county-wide level allows for a more seamless
distribution of police services unrestricted by municipal boundaries and that more accurately reflect the
needs of city and county residents alike, and
WHEREAS, cities and counties throughout New York State have recognized the opportunity for
improved quality and efficiency that may be afforded by consolidating police services and have, as a
result, begun the process by investing in a comprehensive analysis of the feasibility of consolidating or
sharing police services, and
WHEREAS, in 2004, the City of Ithaca and Tompkins County achieved efficiency and cost savings
through the consolidation of emergency dispatch services, and
WHEREAS, the City of Ithaca and Tompkins County currently operate under a Mutual Aid Agreement
with respect to the City of Ithaca’s Special Weapons and Tactical unit, and
WHEREAS, as a result of years of cooperation and previous successful consolidation efforts, the City of
Ithaca and Tompkins County are especially well positioned to achieve efficiencies through the
consolidation of further shared services between the City of Ithaca Police Department and the Tompkins
County Sheriff’s Office, and
WHEREAS, New York State has encouraged communities to identify and implement consolidation and
shared service opportunities and has established various grant funds, including a $150 million onetime
allocation for the Governor’s Municipal Restructuring Fund, to support such efforts; now, therefore be it
RESOLVED, That the City of Ithaca Common Council endorses a joint effort to secure State grant
funding and/or other aid that will, in turn, fund a detailed analysis of the feasibility and opportunities for
consolidation via a countywide police agency, or further sharing of police services between the City of
Ithaca and Tompkins County, and, be it further
J:\DRedsicker\AGENDAS\City Admin Comm\2015\10-21 - Agenda.docx 10/21/15
RESOLVED, That the City of Ithaca Common Council instructs the Mayor to jointly propose for
approval by both legislative bodies:
An application for grant funding in support of such a study and associated eligible costs.
A request for proposals (RFP) for the study of the feasibility and opportunities for consolidation
and sharing of police services between the City of Ithaca and Tompkins County.
J:\DRedsicker\AGENDAS\City Admin Comm\2015\10-21 - Agenda.docx 10/21/15
3. Finance, Budget, and Appropriations
.1 DPW - Reclassification of Sidewalk Program Manager
WHEREAS, the Sidewalk Program Manager requested a review of his position pursuant to the terms of
the CSEA Administrative Unit contract, and
WHEREAS, the review determined that the position has evolved beyond the duties and responsibilities
originally anticipated when it was created in January 2014, and
WHEREAS, the Human Resources Department reviewed the point factor evaluation of the Sidewalk
Program Manager position and determined that the growth in responsibilities merits an increased point
factor rating, which results in the reallocation of the position to a higher salary grade, now, therefore, be
it
RESOLVED, That the position of Sidewalk Program Manager be reallocated from Grade 13 to Grade
15 of the CSEA Administrative Unit Compensation Plan, and be it further
RESOLVED, That funding in the amount of $2,540.76 to cover this salary increase retroactive to
August 13, 2015 shall be derived from Account # S 5410.
J:\DRedsicker\AGENDAS\City Admin Comm\2015\10-21 - Agenda.docx 10/21/15
3. Finance, Budget, and Appropriations
.2 Police - Appointment of Provisional Deputy Chief
WHEREAS, the Ithaca Police Department desires to fill the funded vacancy of Deputy Chief of
Professional Standards, a position vacated by the retirement of DC Townsend in January of 2015, and
WHEREAS, Lt. Vincent Monticello, who is in his 35th year with the IPD and continues to honorably
serve the Ithaca community; has been fulfilling the role of Acting Deputy Chief capacity since April of
2015, and
WHEREAS, there is no active civil service eligible list for the Deputy Chief position until an exam
is requested and held early in 2016, and
WHEREAS, after an interview and selection process, Acting Deputy Chief Monticello was selected to
fill the vacant position of Deputy Chief of Professional Standards, and
WHEREAS, the proposed salary for the funded Deputy Chief position vacancy is in the range between
$89,240 and $107,088, and
WHEREAS, based on law enforcement experience, dedication, and seniority within the Ithaca Police
Department (IPD), the starting salary for said Deputy Chief position shall be $98,164, which is
equivalent to the current salary of the current Deputy Chief, and
WHEREAS, even though this appointment would fall outside of the Management Compensation Plan,
IPD management believes this is the appropriate salary for this position; now, therefore, be it
RESOLVED, That Acting Deputy Chief Vincent Monticello is hereby appointed to the role of
Provisional Deputy Chief with a starting salary of $98,164, effective November 5, 2015.
ITHACA POLICE DEPARTMENT
DEPARTMENTAL MEMORANDUM
TO: Mayor Myrick & Common Council DATE: 10/16/15
FROM: Chief John R. Barber
RE: Salary for Deputy Chief Vince Monticello
------------------------------------------------------------------------------------------------------------------
Hello Mayor & Members of Council,
Please consider this memo my formal request to officially appoint Acting Deputy Chief Vincent
Monticello to the position of a provisional deputy chief with a starting salary of $98,164. The
proposed salary is in the range of $89,240 to $107,088 as indicated on the initial job posting for
the position.
I understand the starting salary is slightly above what would normally be considered for an
internal promotion, however for the following reasons I am requesting approval:
1) Vince Monticello has honorably served the IPD and City of Ithaca for nearly 35 years.
2) He has served in the role of Acting Deputy Chief since April of 2015 and is doing an
exceptional job managing internal affairs, the Accreditation process, and overseeing the
Investigative Division.
3) Once officially appointed, he would be leaving the PBA and would give up many of the
associated benefits/protections that come with being in the union, Ie.all overtime to
include Holiday overtime, comp time, sick leave accruels (8 hours per month accrual
instead of 12), is not compensated for after-hours work or call-ins, will contribute a
higher percentage to health insurance etc.
4) Once the salary is finalized I can backfill the Shift Commander vacancy on the overnight
shift. The overnight shift has been operating without a lieutenant which is creating
regular overtime.
5) DC Tyler and I have discussed the starting salary and we both feel that bringing Vince in
at the same salary as DC Tyler is fair and appropriate.
I will be away at a Chiefs’ conference when this resolution is considered by the City
Administration Committee, but will make myself available by phone or email for any related
questions.
Please show your support for this resolution to approve my request for the starting salary of
$98,164 for long-time employee Vincent Monticello. An officer who continues to honorably
serve the city and is doing an exceptional job in his role of Acting Deputy Chief of Professional
Standards.
Best,
John R. Barber
Chief of Police