Tuesday, December 05, 2006

library update

The Greenburgh Town Board held a work session on the library construction meeting today. The meeting was open to the public. The architect, working with Triton, has presented the Town Board with a proposed master budget. The scope of the work bid has been reduced to meet the budget constraints of the project. Our construction attorney, Thomas Tripodianos of Welby, Brady & Greenblatt, has provided the town with a memo of law detailing the law on post bid negotiations and rejection of apparent low bids. The question is this: has the scope of the work that has been bid been reduced by a significant amount to require re-bidding? If the amount is significant than all bidders should have a chance to revise their bids in accordance with the reduced work. There have been court rulings that indicate that a municipality may not "engage in post-bid negotiations through which a contractor other than the low bidder may become the low bidder, or coerce a low bidder to make unfair and unwarranted concessions through the threat of rejecting all bids." (Matter of Fischback & Moore V NYC Trataros.Auth -1981). In another case (Acme Bus Corp v Bd of Education of Roosevelt Union Free School District) the court stated that "favoritism or irregularity in the bidding process may ostensibly produce monetary savings, but the use of such means to meet that singular end is still unsustainable because the complete public interest is ultimately promoted by fostering honest competition."
Re-bidding will delay the library project and could result in additional architectural costs.
I want to make sure that we are extra careful and that we comply with the competitive bidding laws. I suggested that we reach out to the Attorney General's office or some other state office and seek their advice. A copy of Mr. Tripodianos's memo was distributed to the public at the Board work session.

30 comments:

Anonymous said...

Can you please post the exact wording of the referendum?

Many thanks

PS the attorneys may want to look at it also

Paul Feiner said...

If e mail me your address I will be happy to e mail you the referendum wording. pfeiner@greenburghny.com

Feiner strikes again said...

Municipalities that bid out projects often come in with bids that are too high. It happened just the other day in Tarrytown, where the bids for their new village hall came in $2 million too high.

When this happens, municipal officials don't panic and run in circles. They simply and carefully review their options which here can include rebidding, negotiating with one or more existing bidders and, if some of the costs are due to oversights on the part of the general contractor, perhaps even re-negotiating a portion of the general contractor's fees -- all in an effort to come up with practical business-like solutions that will get the municipality the biggest bang for its taxpayer's buck.

That's what normal municipalities do. Not in Greenburgh. For some bizarre reason, Paul Feiner releases on the web the outside town attorney's legal opinion, expresses confusion as to what should be done perhaps because he didn't understand it, and then tells the public - and potential bidders and Triton - that he thinks what's needed right now is not hard-nosed bargaining from the town, but a second opinion from the attorney general's office.

It's hard to tell whether we should take away from this that Feiner is so naive that he doesn't know what he's doing, or whether he's smarter than that and is once again trying to kill a project he never wanted in the first place.

One thing's for sure. The more authority he exercises over the project, the more likely it will never get built.

pete federman said...

If Mr. Feiner and the public had been allowed to fully review and comment on the project pre-bid, including the overall budget, this situation may have been averted.

glad feiner is striking again said...

It's important that the public be informed what is happening. State laws must be followed. The town has to be careful. This project is already behind schedule, with excessive costs.

Anonymous said...

What's wrong with advising residents of Greenburgh who can't attend an afternoon Town Board work session what happened at an open meeting? Don't most people read this blog for information about the town? No secrets were disclosed if the meeting was open.

Drawing our own conclusions said...

If the consensus at the public portion of the work session was that, rather than engage in hard bargaining, the library project should now come to a halt because Feiner of all people wants to get a second opinion from the attorney general on what to do, the taxpaying public certainly has every right to know that, and we taxpayers who supported the library referendum and have watched Feiner try mightily to derail the project, have every right to draw our own conclusions as to what this latest "disclosure" of his really means.

I feel badly for all those volunteers who are working so hard to get this project off the ground. It must be very frustrating to have a Feiner in their midst who, instead of working cooperatively, as he has often promised to do, works instead to undermine their efforts at every opportunity.

Anonymous said...

It's important that the public be informed of the risks involved if the town goes ahead and awards bids in a potentially improper manner. The town received warnings from it's own construction lawyer. If they proceed it's with knowledge that it could be improper.

Anonymous said...

Feiner has not undermined the library construction process. The Town Board was warned that awarding the bid could be a violation of law. If the Board awards the bids and these bids are later found to have been awarded illegally the entire Board would be correctly blamed for the lack of oversight and due diligence.
Can the town take a chance?

Marc Herman said...

BOND RESOLUTION DATED MARCH 9, 2005.

A RESOLUTION AUTHORIZING THE ISSUANCE OF $19,867,747 SERIAL BONDS OF THE TOWN OF GREENBURGH, WESTCHESTER COUNTY, NEW YORK, TO PAY THE COST OF THE CONSTRUCTION OF AN APPROXIMATELY 24,000 SQUARE FOOT ADDITION TO THE GREENBURGH PUBLIC LIBRARY BUILDING, TARRYTOWN ROAD, ELMSFORD, THE RECONSTRUCTION OF THE EXISTING PUBLIC LIBRARY BUILDING, THE DEMOLITION OF THE BUILDING FORMERLY USED AS THE TOWN OF GREENBURGH TOWN HALL AND THE CONSTRUCTION OF NEW AND THE RECONFIGURATION OF EXISTING PARKING SPACES THEREFORE.

Anonymous said...

Better to be open. Better to be careful. Make sure that all laws governing competitive bidding are followed strictly.

Anonymous said...

As little as the bond resolution says, as compared with the presentations before the referendum, has some one (do we have a town engineer) measured the existing library and made certain any revised plans will add at least 24,000 square feet.

hal samis said...

Why hire a lawyer with skill in construction if not to use him for this expertise? The Town Board, which includes the Supervisor, went outside because when the Town Attorney was "at bat" against the pitching of the Construction Manager, the Town Attorney struck out to the detriment of the Library Construction budget. Thus, the Town Board, acknowledging that the other side has better pitching (the construction firms do this 365 days a year), agreed to retain a specialist.

Now when the Supevisor asks a question of this Counsel, he is in the doghouse. If he didn't ask the question and the Town was sued by a losing bidder, the script would read as follows: "Mr. Feiner, you had an attorney who specializes in this field of law yet you didn't ask if this was illegal? You don't deserve to be Supervisor".

Perhaps Feiner is too often tempted to call situations win-win. On the other hand, in the Town of Anonymous, there is only the lose-lose button.
Over $20 million (say $30 million with the interest cost) is at stake on the Library project. That's enough to fund the Valhalla School District and the SAT Program for 10 years and still have money left over. Why can't anyone give the guy a break when he only asks a question. Let the answer to the question dictate the next response. In the meantime let him do his job.

Certainly if Mr. Sheehan raised the same question, it would be applauded as a positive action. But if Feiner asks, watch out.

Feiner was elected Supervisor. There is a year left in his current term.
Can we get some value for services to be performed or do you want to him to spend the whole year defending his record. What he should be doing is firing Town Attorney Lewis, Town Comptroller Heslop and DPW Honcho Regula. Maybe their replacements will do the job better.

And, if the Town Council, finds things wrong or unfixed or illegal, when they are polled to vote, just say no.

If this makes me a Feiner flunkie, then people should wonder how strong the case was to make me do a 180. Of maybe, I am merely occupying the right place at the right time. Either way, the conclusion is the same. The Library Team can and should not be left to perform their own oversight.
A few years ago the Supervisor was blamed for under-insuring the Town which was a valid criticism. Ever since, the Town has maintained adequate coverage. Now, Feiner is trying to "insure" the Town Library project from injury. And again he is portrayed as wrong.

Fortunately no one named anonymous is listed on the voter registration rolls.

Anonymous said...

Thank god that Feiner is watching our tax dollars.

pete federman said...

I spent nearly 2 hours today at Paul Feiner's office and another 2 hours this evening reviewing the Master Budget which Triton revised as of 12-5-06 as well as the bid tabulation provided by Al Regula.

The project can be near budget with the following caveats:
Only Alternate GC-12, Handicap Ramp, can be included; none of the "Hold" items can be included (Flooring, Casework, Computer Equipment, Specialty Contracts, and grants, savings on soft costs, fees and releases on any items are taken into account.

Using these parameters and Contingency and Soft Costs from the estimates, here are the figures:

Budget Base
$15,828,145 $15,896,042

Change Order Allowance
$806,407
Temporary Library Space
$300,000
Professional Fee's
CM
$680,000
A/E
$1,726,422
Specialty
$200,000 Survey
$40,000

Owner's Soft Cost
$286,772
Totals
$19,867,746 $19,935,643


Using these parameters indicates a $67,897 shortfall as the construction bid cost is slightly over the budget cost.

If contingency is lowered, grants and releases taken into account and actual soft cost numbers used, the project appears to be exactly on budget (From Triton 12-5-06):
Budget Base
Construction,
Temporary Space,
"Holds"
$16,128,145 $16,110,236
Contingency
$806,407 $799,175
Soft Costs
$2,933,194 $2,958,335

Totals
$19,867,746 $19,867,746

I emphasize again that NONE of the GC or Electrical alternates except GC-12, Handicap Ramp, can be exercised.

hal samis said...

Here's a new topic and perhaps a pleasant surprise to some.

At the Town Board 2007 Budget Hearing, a surprising thing happened: I actually agreed with something Bob Bernstein said; a state of mind seldom experienced in the past two years.

On the topic of Police overtime, apparently the Town is anticipating spending around $1 million in overtime next year. This is a very large number and the quick study reaction is to see this as an example of bad management. This overtime is a situation endorsed by BOTH the Town Supervisor AND the Town Council, so lets no go down that road. And, if this becomes a hot issue maybe both entities will disavow their support of this budgeting.

What Bob said as I remember it was "that EVERYONE should have the police protection they need". He was referring to neighborhoods which have requested additional Police presence and the traditional reaction has been to fulfill these needs by paying overtime. However, it need not be supplied by overtime. Bob is suggesting that pockets of need should not be special or responses to who talks loudest before the Town Board. That the staffing needs of the Police Department should be determined by anticipating all of Greenburgh's ongoing concerns throughout the town limits and not handled as a knee-jerk reaction. So far so good.

The idea is that overtime is costly, is awarded to the officers with seniority (who have higher base pay levels, and generate even higher overtime pay compensation than those further down the list) they being the officers who get first crack at these "plum" assignments and the chance to earn extra money.

Setting aside the discussion of whether workers who work extra hours are as efficient as those who work regular shifts (examining both their performance on their shift and on their overtime shift when the two shifts are "contiguous"), there are cost considerations -- all of which I don't know, haven't seen studies or charts and don't intend to pursue being on this "watch" just as one who raises some flags for others to salute.

I'm just throwing out some points, some for and some against, to anyone interested in going further.

If the Police Department were to hire additional officers (who would need training and would not be immediately be available -- all of this hiring generating an expense without an immediate return on the investment), it could be argued that these newer officers would cost far less than using senior officers at higher pay rates and higher overtime than reversing it and awarding overtime to "newer" officers at lower pay scales, including the newest or "first in" police officer. Or eliminating the need for overtime to anyone. But if offered, the newer officers would have the opportunity to earn nearer to senior officers -- and aware that as time goes on their overtime opportunities would pass on the still newer members of the force. In other words, the senior members of the force would have to be content with higher pay grades and little likelihood of overtime -- the opposite of the existing model.

Having more officers in the ranks makes more trained individuals available as back-up in emergencies, or to cover absences or any of the other situations which may create the need for overtime.

Having more bodies in the ranks may create the need for more, costly managerial ranks.

Having more officers would also increase their equipment costs including capital items like cars.

Having more officers also raises the cost of some of the benefits such as health insurance. The Town presumably is still covering one officer, whether he accepts overtime or not; thus paying overtime to an existing cadre keeps the number of employees eligible for these benefits down.

Once passing their requirements and trial periods and becoming permanent members of the force, it would be very difficult to reduce the payroll. So, if the Police do an excellent job and eliminate crime, then, by the decision to hire more officers in lieu of awarding overtime, you may end up with that many more idle policemen with little to do. Unless, of course, they are assigned to one-on-one details at Town Board meetings.

The tradition of earning more money from overtime may already be an ingrained perk of the Department and thus something very difficult to eliminate without causing problems.

There may be Union and contractual regulations regarding this situation.

All of these situations can be projected and assigned costs and thus could be compared on a cost/benefit basis.

Thus, there may be many, many sides to a simple observation that $1 million in overtime is a big nut. But, Bob is certainly correct in observing that the Police Department should not be run year-round as special neighborhood needs determined, all neighborhoods should receive the level of Police presence as is needed and to achieve this, perhaps the Department and the Town BOARD needs to revisit the issue of overtime versus hiring additional officers.

I hope I have not misinterpreted or misquoted Mr. Bernstein. And, that the Chief doesn't arrest me tomorrow.

hal said...

ok have me arrested, I meant to post this in December comments.

pete federman said...

To clarify the scope of the GC Alternates further, they are more related to finishes rather than eliminating square footage excepting GC-9, the Bookmobile Canopy ($44,000 per the low bidder) which can not be exercised and stay on budget: in either case you still end up with the same size facility.

The Electrical Atlernates are for a lighting control (dimming) system and a lightening protection system, which likewise do not affect size of facility

Anonymous said...

To Peter Federman

Your email at 9:13 is not clear. Why are temporary costs of 300,000 included?

Also, the bond resolution says "to pay cost of " it does not say to pay cost, net of grants,

Anonymous said...

actually the bond resolution says

"to pay THE cost of"

1. Mr. Feiner, are you going to have counsel include in his opinion whether grants can be used to reduce the cost and stay within the resolution

2. How much are the grants?

Anonymous said...

It's important that the council continue to seek outside opinions before making their decision.

Anonymous said...

So am I correct, trying to read through Mr. Federman's jargon, the only way this can be regarded as on budget is with virtually no contingency allowance?

What happens if it goes over budget? Where does the money come from?

Anonymous said...

Mr. Federman,

1. "Only Alternate GC-12, Handicap Ramp, can be included; none of the "Hold" items can be included (Flooring, Casework, Computer Equipment, Specialty Contracts, and grants, savings on soft costs, fees and releases on any items are taken into account."

There appears to be typos/omissions in that paragraph. Could you please clarify as to what is "not included" and what is "taken into account" -- they seem to run togethor.

2. What does exercised mean in the context of your last sentence?

Thank you .

Paul Feiner said...

Clarification: I contacted the State AG's office. They do not oversee construction awards by municipalities. They referred me to the State Comptroller's office for an opinion.

hal samis said...

What Pete Federman omitted to do was to add up the value of the so-called alternatives and he would see a figure approaching $1.2 million. Now this is not value engineering, going with the "cheaper spread"; this is a deliberate pulling of the wool over unaware eyes. But older television viewers remember the tag line "It's not nice to fool mother nature".

The Architect and the Construction Manager are paid fees based on percentages of the project cost. Thus, the more they spent, the greater their fees. So, when they put together a budget of $19.8 million, they didn't say we can also give you pretty much the same Library by going with the cheaper "alternatives". Perhaps there is something that makes the alternatives less desirable? In any case, we are stuck with them now but the Architect and the Construction Manager get paid as though the premium brands were being used.

Furthermore, this isn't the Library that those kind folks told you were getting when you went to their "information sessions".. .Oh no, the alternatives are the third if not fourth line of defense. The second line of defense was to reduce the overall amenities that were promised. Note that the only sacrosanct "keeper" was the 46,000 feet because, frankly, they boxed themselves into a corner quoting "expert" Lushington who said this is the size we MUST have.

The first line of defense is the cushion built into the project cost at the time of the original estimate. There were provisions for inflation, escalations etc, to the tune of about $3 million contained within the $19.8 million. And despite being labeled terms like contingency, cushion, inflation as though they might not need to be used, they were used, iat the very beginning, to compute their percentage fees.

The third or second line of defense is the $300,000 earmarked for the renovation of the old town hall. With that possibility no longer alive, the money returns to the construction side.

The fifth line of defense is obtaining grants which will be applied to presumably optional items like a circulation desk ($125,000) which taxpayers contribute to when they pay their State taxes.

And, lest we forget, the way the Library operating budget works is that they are the only department with a Library Fund to scoop up and retain all the dollars they asked for but found they didn't need to spend AND they also have a contingency line item ($70,000). During 2007 the total of these two items will be $340,000 which the Library can spend as it wants. Say to buy furniture or office equipment for the expansion project.
Call this, if you will, the fourth line of defense.

So when you hear that they are "on budget" for $19.8 laugh because it is really a joke that Leno's writers couldn't pull off, maybe Michael Richard's writers. Hold on to that thought when you pay your taxes but now be careful: don't let your tears of joy smear your signature when you fill out the check.

What I maintain is that we are getting a $16 million library that is costing us $19.8 million; that if we were to get the Library portrayed pre-referendum it would cost us $24 million -- and either way we still will have to pay an additional $8-12 million to cover the interest on the bonds.

But, if that weren't enough, after almost a year, the Library still doesn't even have approval to dig wells to procure a geothermal energy dream. Once they get the permission, they still have to find water.

However I maintain that the Town should not be proceeding by signing any new contracts (obligations) until they at least have permission to drill.
Failure to obtain this will cause the project to seek an alternative source of Heating and AC. And while this is underway, we would risk penalties and change orders because we weren't really ready to start. Don't let the Town Board bow to the pressure to sign construction contracts that were premature in obtaining.

If the celebrated Library Team is continuing to strike out and are still in their now two year slump, it is insane to keep buying them more bats and balls. It is time to call a timeout and consider what went wrong.

In my opinion, we need some new players and management. Keeping Howard Jacobs, Susan Wolfert, Estelle Palevsky and Al Regula on the team has so far been a mistake. Let's get smart and be sure they don't show up at Spring Training. They've had two years on the job and they're still batting zero.

Anonymous said...

Hal,

The issue is not that the grants will be paid for by the state and ultimately state taxpayers.

The issue is that the bond referendum specifically said that the cost of the library would be 19.8, not that the bonds would be used to fund up to 19.8 of the cost of the library. Given that the referendum passed by a very very small margin, one has to wonder how many would have voted if the wording were the latter. A circulation desk is not optional -- it is a critical part of all libraries.

Hal, also -- to say that the costs are exclusive of interest -- that is the way bonds and capital projects work.

hal samis said...

at 9:24,

Circulation desks are indeed not optional and thus were always a part of the original estimate of $19.8 million. And, if a grant were not obtained, then the cost would, from the beginning, come out of the $19.8 million. The point is that only by getting additional money from somewhere and by cutting down the amenities and the quality of the finishings, is the Library Team able to say that the budget is intact. If the Library replaces a slate floor on the lower level with carpeting, it is another way to lower costs and stay on budget. Even if the quality of the carpeting is poor, even if the carpet gets stained, even if the carpet gets worn out quickly and has to be replaced, this will not be reflected in the exapansion budget and the Team will bleet that the project is on budget. So, if in three years, the carpet has to be replaced, it will come from other taxpayer contributed funds. And if the Library decides to use a lot of their old furniture in the brand new building, it is not because they are happy doing so. It is because that by taking the money originally budgeted for furniture and moving it elsewhere in the project, the Team has found another way to stay "on budget". Of course, don't weep that they have to keep a lot of old furniture, you will be paying for its replacement in the 2008 Library OPERATING (and in the 2007 contingency and Library Fund lines) budget in the line items named office equipment and furniture, still another way to add money to the expansion without altering the budget. To build the $19.8 million Library presented to the Public in the pre-referendum "information" sessions, would cost $24 million.

Is there some special happiness in your head when you say that interest expense is normally not presented in capital programs? It does not go away; it is there; it is a real expense; it must be paid. Do I think the Library Team is more or less incompetent because they are misspending $30 million or $20 million? No, Virginia, there is no half-pregnant and there is no 2/3 incompetent.

Anonymous said...

No Hal -- you are saying that the library money is being spent unwisely.

I am saying it is not being spent in accordance with the bond referendum and is illegal. It may also be unwise, but that is more difficult to stop and revisit the project.

Anonymous said...

So if others recognize the illegality of the library deal, why is Hal Samis the only one speaking up at Board meetings? Now is the time, not later when all you can do is moan.

Anonymous said...

I think the supervisor has it under control.