Monday, March 19, 2007

CBA "watchdog" sought to ensure "history making" benefits "for local community"

Two yet-to-be-hired Atlantic Yards monitors will be paid by developer Forest City Ratner (FCR), but it's important to keep the two straight.

The more important one will be an Environmental Monitor (EM)--the process is already behind schedule--hired by the Empire State Development Corporation (ESDC) to oversee construction activities, environmental mitigations, and much more. Residents concerned about communications difficulties have already urged the ESDC to put construction on hold until such a monitor is hired.

Enter the ICM

Meanwhile, Forest City wants you to know about another monitor, an Independent Compliance Monitor (ICM) that is part of the Atlantic Yards Community Benefits Agreement (CBA).

(According to the CBA, which was signed in June 2005, the ICM was supposed to be sought "as soon as reasonably practicable after formation of the Executive Committee," as I wrote last August. The term "reasonably practicable" apparently means March 2007.)

"Watchdog" sought

A press release issued last week by a Forest City Ratner-paid public relations firm was headlined "ATLANTIC YARDS CBA COALITION SEEKS INDEPENDENT COMPLIANCE MONITOR: 'Watchdog' To Ensure Community Benefits for Local Community and Residents."

The RFP for the monitor is managed by the same firm, the Darman Group, hired by Forest City to vet minority- and women-owned businesses to work on the project. Given the reference to the "historic Atlantic Yards CBA" (right), it's a good bet that the Darman Group and its funders won't be raising any questions about the CBA.

The press release states:
As outlined in the CBA, the ICM will be responsible for ensuring that all benchmarks for the initiatives in the CBA are met and completed, including the affordable housing, workforce development - consisting of the development of job training programs - inclusion of minority and women-owned enterprises in all phases of the construction and hiring of women and minority workers during the construction.
"The ICM will work with all parties to ensure the goals stated in the CBA are reached and provide an independent third party to mediate any disagreements should they arise," said Delia Hunley-Adossa, Chair of the Executive Committee.


Hunley-Adossa represents Brooklyn Endeavor Experience, formerly First Atlantic Terminal Housing Committee (FATCH), a group which apparently has done little more than testify in favor of the project.

The CBA states:
The terms of employment and evaluation shall be determined by the Executive Committee.

Given that the Executive Committee supports the project and, unlike the ESDC, is not subject to any further oversight, is there reason to think that the monitor would be truly independent? The New York Observer last month reported criticism from an opponent of Columbia University's development plan:
“Ratner and the city got together with one big, national not-for-profit and a set of local sycophants and put something together which doesn’t seem to have satisfied too many people, except for those who are benefiting directly from it,” Mr. [Jordi] Reyes-Montblanc, the chairman of Community Board 9, said.

Affordable housing delay?

Perhaps the first question is whether the ICM would question the pace of the project.

After all, no one from ACORN, which presumably signed the CBA expecting that the promised 2250 units of affordable housing to be delivered in ten years, has mentioned public statements by the developer and supporters that the project could take 15 or 20 years.

In-house discretion

Unmentioned in the press release is that FCR would fund the ICM, according to the CBA, with "an annual payment of up to $100,000 to be paid by the Project Developer."

Responses are due by 4/25/07. While the initial contract term will be two years, the Executive Committee of the CBA "will have the option to extend the contract term at its sole discretion," according to the RFP.

The CBA suggests but does not specify that an ICM would continue through the life of the agreement, which is up to 30 years from the "commencement of construction of the first residential building" or if "the Developers abandon their efforts to acquire or lease from the Metropolitan Transportation Authority and to obtain a rezoning of the Project site for large-scale development." (Fun fact: it's never been a rezoning.)

Looking at the RFP

In the RFP for the monitor, the term "history making" also gets prominence:
...Forest City Ratner Companies... executed a history making Community Benefits Agreement (the “Agreement”) with a coalition of eight (8) community based organizations.
(Emphasis added)

The Darman Group staffer to whom responses should be sent is Hallene Condon, a Queens resident who last year contributed to Atlantic Yards supporter Roger Green's bid for the House of Representatives, which turned into a spoiler race taking votes from Atlantic Yards opponent Charles Barron.

What the ICM might do

The job of the ICM is parceled out into several tasks, some trivial, some more central. It's as if the writer of the RFP was unwilling to consolidate tasks.

Task I
The ICM should establish a clear understanding of the scope, schedule, intricacies and programmatic goals of each phase of the project as set forth in the CBA, a copy of which is attached hereto and made a part hereof.

This would seem to be inherent in the job.

Task II
The ICM shall meet with each of the Executive Committee members to clearly define such member’s individual areas of responsibility as prescribed in the CBA, including with respect to its Governing Council. The ICM will also analyze and measure how these areas of responsibility or lack of fulfillment of such obligations will impact the goals and objectives of the CBA.

Apparently, this means someone will find out what the Executive Committee members are supposed to do.

Task III
The ICM shall meet with the Executive Committee members to clearly define such members’ obligations and responsibilities, as prescribed in the CBA, as a whole toward the effective implementation of the entire CBA. The ICM shall develop quantitative and qualitative measurements of such compliance with the goals outlined in the CBA and evaluate the adherence to the time-lines for the completion of the goals set forth in therein.

This seems somewhat redundant, but it apparently involves setting benchmarks.

Task IV
ICM shall analyze all the initiatives and obligations that are set forth in the CBA and develop a strategy which clearly defines and measures whether compliance objectives set forth in the CBA are being achieved. The ICM shall develop a format for reporting on compliance with the CBA and its initiatives and establish a frequency for such reports.

This apparently involves measuring performance against those benchmarks.

Task V
The ICM shall deliver 10 copies of all reports to the Executive Committee and 2 copies to the Downtown Brooklyn Advisory and Oversight Committee (DBAOC). The execution of all of the above tasks may run concurrently.

This means that the ICM will have access to a copy machine and the U.S. Mail.

Mitigation--CBA vs. ESDC

A closer look at the CBA shows that the monitor hired by the ESDC will have a much greater role than the ICM. Take the question of environmental impacts, which the CBA mentions but then defers to the state.

According to the CBA:
Developers shall consult with FATHC to determine appropriate mitigation measures that will address the concerns of the Community regarding environmental impacts caused by the development of the Arena and the Project, including, but not limited to: an on-site and off-site rodent abatement program; a staging plan for construction that minimizes the effects of idling trucks; a pedestrian and vehicular traffic plan; and encouragement of all contractors to use low sulfur diesel in trucks operating at the Project. In addition, the Developers shall adopt prudent environmentally sound building practices that will take into consideration the goal of promoting sustainable development in an energy efficient manner. The Developers shall notify the Coalition of their ongoing plans and mitigation measures. It is understood that the Project’s environmental impact statement and review process is administered by the State. All potential environmental mitigation measures, the cost to implement such measures, and the party deemed responsible for their compliance is ultimately determined by the State. Therefore, the Developer shall be in compliance with this Agreement by following the state mandated process.

(Emphasis added)

Regarding compliance, the CBA cites mediation and potential court action--except that the state-mandated process would seem to trump that.

The ESDC's monitor

Contrast the seven-page ICM RFP with the 28-page RFP for the ESDC's Environmental Monitor. The tasks for that job include:

1. Compliance with the specific measures to protect historic buildings near the Project site from being potentially damaged as a result of construction activities;
2. Implementation of environmental investigation and remediation measures and construction techniques pertaining to the management of asbestos, PCB-containing equipment, petroleum and other hazardous substances (including contaminated soils and groundwater) in a manner that complies with all applicable laws and regulations and will protect workers and the general public from adverse impacts associated with these environmental conditions, including implementation of a Construction Health and Safety Plan during remediation and excavation and a Community Air Monitoring Plan during excavation;
3. Numerous specific measures to reduce the effects of the Project’s construction on traffic conditions, air quality and noise, including the scheduling of truck deliveries, the use of designated truck routes, the use of on-site staging areas to reduce queueing on City streets, provision of an appropriate amount of on-site construction worker parking spaces, the use of equipment that meets the sound level standards specified in the New York City Noise Code or more stringent specified performance standards, scheduling construction to reduce noise impacts during evenings and weekends, situating noisy equipment away from the sidewalk were feasible, construction of noise barriers, use of quality mufflers, proper maintenance of equipment, provision of double-glazed windows and alternative ventilation to certain buildings near the project site, use of quiet construction techniques where feasible, use of dust suppression measures, use of electric-powered rather than diesel-powered equipment where feasible, limiting vehicle idling, use of ultra-low sulfur diesel fuel for all equipment with diesel engines, use and proper maintenance of best available tailpipe emission reduction technologies, location of stationary engines away from the sidewalk where feasible, and preparation and implementation of a construction air quality compliance plan;
4. Implementation of a rodent control program during construction activities;
5. Implementation of measures to retain and detain stormwater to meet certain performance standards with respect to Project-related combined sewer overflows;
6. Use of low emission boilers for the Project buildings and location of the HVAC vents in certain locations to protect outdoor and indoor air quality; and
7. Implementation of incentives to reduce traffic demand associated with operation of the Project to reduce the overall number of vehicles coming to the arena for a Nets basketball games.


That's a lot more to do.

Enforcement murky

Still, the memo (p. 28) establishing the Environmental Monitor sets out a vague description of enforcement, with no specific penalties or arbitrator:
1. The Project Documentation shall provide that ESDC shall have the right to enforce FCRC’s compliance with the commitments set forth above.
2. ESDC shall have the right to enter the Project site at all reasonable times, subject to safety and operational constraints, to monitor FCRC’s and FCRC’s contractors’ compliance with the terms of such commitments.
3. FCRC and FCRC’s general contractor shall meet with ESDC, at ESDC’s request, to discuss the compliance and implementation of the obligations and measures set forth in this memorandum.


What "community"?

While the ICM press release emphasizes the benefits to the "local community and residents," it's not quite clear what "community" means.

The CBA offers several definitions of "community":
“Community” means: the borough of Brooklyn, New York City, inclusive of the Neighboring Community and Surrounding Community, as herein defined.
“Neighboring Community” means: Community Boards 2, 6 and 8 within the borough of Brooklyn, New York City.
“Surrounding Community” means: the two-mile radius of the Project site within Brooklyn.


So far, however, the most important criterion for preliminary site work is status as a minority- or woman-owned enterprise, not "community" status.

According to a press release issued by Forest City Ratner regarding pre-construction work for the Atlantic Yards project, The largest of these contracts were awarded to the woman-owned demolition firm A. Russo Wrecking to remove the MTA bus parking facility on the east side of the track and the minority-owned security firm Eddington & Associates. Other contracts went to J&J Asbestos Abatement Corp., C & W Cleaning, JMV Associates and Cole Consulting.
...Demolition [at 179 Flatbush] will be performed by Cole Partners, a minority-owned firm, with construction management services provided by Gateway Demolition. Air monitoring during and after abatement was conducted by Safety Environmental, also a minority-owned firm.
(Links added)

According to a second press release:
Jobie Demolition & Contracting, a Brooklyn-based minority-owned firm; Sukram & Sons Trucking Ltd, a minority-owned firm; and Cole Partners, a Brooklyn-based minority-owned firm, have been contracted to remove the structures.

Of the firms, three (J&J, Cole Partners, and Jobie Demolition) are from Brooklyn, two are from Nassau County (Russo and Sukram), and one each are from Queens (JMV), Staten Island (Safety Environmental), the Bronx (Eddington), and Westchester (Cole Consulting) counties. (I'm not certain about C&W, but it may be this Brooklyn firm.)

If the outer counties are defined as the "community," maybe the Community Benefits Agreement should not have been "negotiated" only by six mainly-black groups from Central Brooklyn, the New York State Association of Minority Contractors, plus the New York branch of the national housing group ACORN.

The CBA states: the Coalition and the Developers seek to maximize the benefits of the Project to residents of Brooklyn, as well as minority and women construction, professional and operational workers and business owners and thereby to encourage systemic changes in the traditional ways of doing business on large urban development projects

Maybe the work so far represents systemic change. Then again, as I wrote, hiring an architect who's already working on towers in Brooklyn doesn't exactly represent systemic change.

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