Open Letter Regarding Your Duty to Negotiate MMA Rights of Way with DOT
Dated: October 10, 2016
TO: Bruce Kimmel (Council President), Rich Bonenfant, Michael Corsello, Doug Hempstead, Nick Sacchinelli, Eloisa Melendez, Steve Serasis, Faye Bowman, Travis Simms, John Kydes (Majority Leader), Michelle Maggio, Michael DePalma, Shannon O’Toole-Giandurco (Minority Leader), John Igneri,Tom Livingston
CC: Mayor Harry Rilling
Regarding Item F (3) on the Agenda: Authorization for the Mayor to sign the MMA for Rights of Way, I am writing to urge you to table and reconsider this agreement. Due to the early scheduling of the meeting, it is unlikely that I will be able to address you in person.
Last week I sent an email to Public Works Committee Members addressing the benefits of having the Council maintain the fullest discretion over Rights of Way on City projects where the State administers funding and assists with property takings/easements, using the recent East Avenue project to demonstrate how Council can use its discretion to benefit and protect Norwalk’s residents and businesses (and to clear up some misunderstanding on the part of the Director of Public Works about the history of the ROW on that project.)
That email is attached for the benefit of the rest of the Council (and also available at Gateway East Norwalk).
Now that the draft agreement is available for the public to review, I wish to address the agreement itself and the impact it will have on your ability to represent Norwalk on these projects.
This is a one-sided agreement that benefits the DOT.
Aside from the initial whereas clause, reference is made to mutual agreement only twice:
- once if there is a need to change the designated official, and;
- once to amend the MMA itself
However, the DOT is given sole discretion Xx
- once to change the scope, Funding or cost breakdown in the PAL (spec sheet),
- once to allow the DOT to disallow reimbursement of expenses for failure to maintain proper records or to produce them upon request,
- twice for the DOT to suspend, postpone or terminate for convenience,
- thrice for the DOT to suspend, postpone or terminate for cause,
- once for the DOT to determine the period of time to cure the breach,
- once to allow the DOT to determine whether it is both parties’ interests to terminate the project if Norwalk requests to cancel the project,
- once to give the DOT sole discretion over the reimbursement of expenses on work done previously on a suspended/postponed/terminated project,
- once for the DOT to demand return of funds for work the DOT (or FHWA) deems “unacceptable”,
- once for the DOT to decide whether to return any of the “Demand Deposit” in the event the DOT terminates a project,
- once to determine the method of disbursement,
- once for the DOT to make the call about which provision applies in the event of a conflict among the PAL, the MMA and any mandatory state and federal requirements,
- once for the DOT to determine that Norwalk has to complete a project EVEN IF THE PROJECT IS TERMINATED FOR CAUSE
And though it doesn’t explicitly require sole discretion, if the term of a PAL (spec sheet) expires or the DOT cancels a project for convenience, the PAL still has to continue to completion, which disempowers Norwalk.
If this agreement were, in fact, designed to streamline the agreement/reimbursement process for City of Norwalk projects that are receiving State and/or Federal funds, the terms would include processes and timelines for submitting records and timelines and methods for disbursements to Norwalk.
Those items are just not in evidence.
To the extent that it “streamlines” the process, it does so only by taking any discretion or negotiating power away from Norwalk, and transferring it to the DOT. This works very well when Norwalk and the DOT are in agreement with the progress on a specific project.
To evaluate this contract properly, Councilmembers and Corporation Counsel must ask the “what if” question.
What if, after agreeing to the PAL, the DOT alters the scope and Norwalk no longer agrees with the scope of the Rights of Way?
- Norwalk can ask to terminate, and the DOT gets to decide whether they can, whether they get their deposit back, whether to reimburse on any prior outlays—all in its sole discretion AND the PAL has to continue anyway. Furthermore, the land that gets acquired, no matter who pays for it can only be used for transportation projects after the ROW are acquired.
- Norwalk can ask to alter the PAL, but the DOT gets to decide whether to do so, and it gets to decide what the revisions are.
The effect of this agreement is to provide the DOT with a funding cudgel. Once a PAL is signed, the DOT gets to make all of the decisions about the scope of the project, and it gets to decide to cancel a project, pull funding, or even to force a project to completion without paying for it, if Norwalk balks. After the ROW are complete, no other use of the ROW is possible, except “Transportation” and Norwalk doesn’t do “Transportation” without Fed/State funds, so control of the land will still live on with the decisions of the DOT.
Do you really need these terms to “facilitate/streamline” reimbursement?
At a minimum, Corporate Counsel should request that most or all instances of “sole discretion” appearing in the contract be replaced with language that provide for “consent by the DOT which shall not be unreasonably withheld” or, where reasonable, provide for “the DOT, by mutually agreement with the Municipality, which shall not be unreasonably withheld”.
Once again, the Council has utilized the negotiation of ROW in the past to try to gain more favorable scoping of projects in line with the desires of the community. This will not be possible under this agreement when the DOT disagrees with Norwalk.