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2003-03-10 SP SPECIAL TOWN BOARD MEETING MARCH 10, 2003 MTG. #11 RES. 145 6:36 p.m. TOWN BOARD MEMBERS PRESENT SUPERVISOR DENNIS BROWER COUNCILMAN ROGER BOOR COUNCILMAN THEODORE TURNER COUNCILMAN DANIEL STEC (entered meeting 6:40 A.M.) COUNCILMAN TIM BREWER TOWN COUNSEL BOB HAFNER Supervisor Brower-Opened the Meeting Introduced Rich Schermerhorn, John Lapper, Doug Auer and Tom Nace Discussion on the Bay Road Sewer Mr. John Lapper-Attorney First of all thank you for giving us the opportunity to have a special meeting, this situation just arose last week and it is pretty important to Rich and I think the Town as well because he obviously has a thirty four thousand square foot building under construction which has to be ready for occupancy by the hospital at the end of May. This is the first time the hospital has committed to a facility of this size outside of downtown Glens Falls and Rich was happy to get the lease because it does a lot for his Bay Road property and his office project. We contemplated that and the sewer capacity that was needed for that whole project that he is doing we were aware in speaking with the water and sewer department of the town that there were other users in the district that needed sewer capacity as well, so Tom Nace designed a map, plan and report for a sewer line district extension that would include Rich's property as well as Baybridge Town Homes and some other neighboring properties ad at the request of the town size the pipe and the pump station so that it could service north on Bay Road as well in the future if that need was met. The map, plan and report that has been approved by the Town Board included the Town making a financial contribution of approximately one hundred and forty thousand dollars as the Town is able to elect under town law in order to include that extra capacity. What has happened recently we have the buildings approved and under construction the sewer line design has been approved by DEC we have received that permit we were forced to go to the Department of Labor and make a request for an opinion from their Counsel's office because some where in the ...had raised the issue with them that this project although being constructed by private developer maybe subject to the prevailing wage laws as a municipal project. Surprising to me the Department of Labor did come back last week and said that in their view it is subject to the prevailing wage law which would add somehing in the order of seventy thousand dollars to the cost of construction, which is certainly something that the numbers that were presented to the Town and with the Developer was expecting to pay did not contemplate. At that point we felt that we had to look at alternatives, we have one alternative would be to appeal that to a court and we think that it is possible that, that could be overturned but at this point because Rich has the building coming on line we do not have time for six months of litigation at least. I have shared that opinion with the Town Counsels and we have had some information discussions with the Town Sewer and Water Department and the Town Attorney and the Town Comptroller to just talk about some alternatives that we were considering. We are here to propose a change in the procedure for how Rich builds the sewer line and what we are proposing specifically is that he would build the sewer line, the main and the pump station to the exact same design that has been approved by the Town ith that extra capacity. It would be constructed at his cost so that the Town would no longer have to include the hundred and forty approximately thousand dollars contribution toward the line. In order to recoup some of his costs we would then go forward and form a sewage works transportation corporation which is a procedure that involves applying to the Town to grant that franchise as a transportation corporation and then applying to the Department of Health to approve the plan as well the design of the plan. At that point he would be able to include other formally district users but other people in the area other property owners within his sewage work area and he could then provide service to them and in that way recoup some of his costs. We are here tonight asking instead of the map, plan and report that you have approved to instead let him put the sewer line in and the pump station a contract user to the existing district with the understanding that he would then come back quickly and start the proces of forming the Sewage Works Transportation Corporation. There are two things specifically that we need from the town. We need, to have a grant of the easements which have been acquired that run up Bay Road to go from the sewer district existing sewer line to his property. It would be identical location of where they were proposed for the map, plan and report for the district extension and then the ability to be a contract user. We will, he would like to start construction in a matter of days because we have the DEC approval and because he needs to do that in order to meet the deadline for the hospital by the end of May and in the interim they will start the paper work to apply to the town the department of health for the Transportation Corporation. Mr. Rich Schermerhorn-I just want to add the pump station and all the manllOles all the pipe everything has been ordered by deposits and stuff and everything actually starting to come in right now. The plan has not changed everything is still sized. I order the Gorman Rump Pump which was the favorable pump, after talking with Mike Shaw and Tom Nace. So, everything, nothing has changed. Councilman Turner-It matches the equipment we got, right? Mr. Schermerhorn-It is the same equipment that we discussed, I have not changed anything on the plan. Councilman Brewer-Three quick questions? What, I know when we accepted the map, plan and report we set a rate is that rate going to be affected? Attorney Lapper-Let me address that, Tom is going to have to do the math, but what is going to happen now is that as part of the application to the town for the Transportation Corporation he will have to propose his rates and it will have to be approved. So, that would include recouping some of the cost of putting in the line and pump station but it has to be fairly split from one of the different users in the service area. Unknown-Should be by service... Attorney Lapper-When I have done water companies in the past they have to be reviewed and I just read through the transportation law again and I think the sewer works corporation is actually the town board that sets the rate, so we would have to make an application and show you the numbers the costs numbers and what would be a fair return on the investment plus recouping some portion of the capital expenses because of course Rich is a user as well for his property. Councilman Brewer-The next one is, is there a risk in doing this that if a person that went to the labor board going to somebody and saying look, this is how he is going around it? I do not want to see that ... Attorney Lapper-And the answer is no, because the, very simply that decision was based upon the fact that, the town was contracting for the services and here the Town is letting a private corporation provide the services, like as a utility. Councilman Stec- To follow up on Tim's question though, will you be in parallel pursuing straightening out the issue with the Department of Labor as you said it will not happen quick enough but will you also work to get an answer there or will you just forget that... Attorney Lapper-Probably forget there because if we are going this way this is another legitimate way to do it to form the sewer works corporation. If we did it the other way we would be coming back to the Town asking for the hundred and forty. It is just going to take so long to appeal this to serve the department of Labor to have them come in with their briefs to say what their position is, it is not clear and it just does not make sense if we are going to go down this road we might as well do the Sewer Works Corporation and move forward. Councilman Brewer-It is certainly my feeling is that not to delay you Rich but, I would want before we approve this speaking for me I would want to know the rate because if the rates go sky high then are the people going to be able to afford it? Is it just going to be a pipe in the ground servicing this? Mr. Schermerhorn-On the other hand I would not want the rates to be too high because... Councilman Brewer-I understand that. We get to set the rates. Unknown-You get to set them. Councilman Brewer-So we could keep them the same as... Councilman Boor-My question would be you certainly do not want to be in the sewer business so ... Attorney Lapper-He does want to be in the sewer business Councilman Boor-For a certain amount of time, is there a mandate or is there a time frame at which point you would have to get out of it? Attorney Lapper-Well, the Transportation Corp. what it says is that the Town always has the option to buy the property back at fair market cost, to buy the line at fair market value by condenmation or by agreement with the developer when you approve the Transportation Corp. You can put that in as a provision in your approval that at any time or at a set time have the right to buy it back. Town Counsel Hafner-Normally when builders do things they dedicate it to the Town it is not a buying it is a dedication. Attorney Lapper- The difference here is and this is governed by Transportation Corporation Law for one thing but the difference here is that Rich is still going to the expense of sizing it to meet the Town's future needs which if this, just like building a road, you would do it for his needs and dedicate it to the town. At the same time the Town never has to buy it because he has the obligation to provide sewer service to the people in the service area that he will agree which will be upper Bay Road as well. So, in terms of what the numbers are going to be Tim, it would be the cost for this for what he is putting in now plus the cost of the, in the case of Baybridge bring the line up on Walker Lane and the interest expense on the money and just all the stuff that would normally go into what would be divided by the people in the district. Councilman Brewer-I just, my only concern is John, is that just for the sake of a number if the people from Baybridge are prepared to pay a dollar, lets say a number, now all of a sudden we go this way and it becomes two dollars are they going to be able to afford it number one and are they going to pull out number two. That is the concern that I have. Councilman Boor-That is a legitimate concern, I think the problem is, is we are in this predicament because the very person that built Baybridge has made the cost go up. Councilman Brewer-I understand that Roger but that has nothing to do with us. Councilman Boor-But they are on a band aid...hooked up, they have to seek a solution unless I am incorrect. Councilman Brewer-Those people over there do. Attorney Lapper- The main is going to be a function of what the costs are, he is not going to be able to gouge them and get some incredible profit and you will be looking at that which counsel and with the consultants. The Town also has the right to bring in the town engineer and Rich will have to pay for that as well as part of the review. In terms of what the fair costs are we cannot tell you today but we know it will have to be a formula that will be approved by the Town and its consultants. Supervisor Brower-Previously the Town was committed to approximately one hundred and forty thousand to purchase future capacity. Now you are saying that is, that would not be the case? Attorney Lapper-Right. Probably as a result of that not being the case Baybridge and the other users will pay a little bit more because the Town was compensating... Councilman Brewer-...it was two hundred thousand dollars. ... Councilman Boor-But they have to get...we did not create this problem. Councilman Brewer-I understand that. But if we do this we are creating the problem of jacking the price way up. Councilman Boor-We did not do it, we did not jack the price up. Attorney Lapper-We cannot do it the way we had proposed without paying the prevailing wage which would increase everybody's cost pretty substantially anyway. Rich understands the Green Mountain Development over here that is doing the other senior project that they want to hook into so that there maybe the cost by more parties ultimately but we cannot sit here today and ... Councilman Brewer-Now do we have to go through all the public hearings and all that again? Town Counsel Hafner-What they are proposing we do not need to go through public hearings except when they come back maybe with a transportation corporation law. I think there is I am not that familiar I will have to review the law. But that is not for today, for what they are asking for today they are asking for an audit district contract which is something that we do, I know we do in the water context, it is usually houses or small things but we have standard contract that we had prepared this will not be as standard because it is kind of quirky, but we have a contract that is what they are asking for that's not that complicated as a means of ... they are also asking for sharing the easements that we have, that does not require a public hearing but it is subject to permissive referendum. We were asked to put together a resolution for tonight, the resolution that we have grants them the right to share our easement non exclusive, we can still if we ever want to put our own sewer line in on that same locatin and it is subject to permissive referendum and grants them a license to use it in the intervening time while we are waiting that thirty day referendum period to pass. You do not need a public hearing. Councilman Brewer-So they are asking us for a ...tonight? Town Counsel Hafner-Yes. That was what we were asked around noon time to prepare a resolution for tonight. Attorney Lapper-We were planning to construct in the next few days to meet the schedule anyway before this happen for Rich needs to get in the ground. Mr. Schermerhorn-Tim, I have already contacted O'Connor I have ordered everything. Councilman Brewer-I understand that Rich and I Mr. Schermerhorn-This is a surprise to me as well as everybody else, we just got this letter last week, I mean, we could sit here, this could go on for ... Mr. Douglas Auer-I kind of worked on cost wise because I know that is a concern Councilman Brewer-It is a hugh concern. Mr. Auer-Well, if we go back to our original every before any of this even showed up on the radar screens going back three years ago when Bob V ollaro and ...in Queensbury we had costed this thing out based on Baybridges costs which was significantly higher than what came about in the first contract and also significantly higher than what is being proposed now. Now, keep in mind there is eighty six units there to born the cost of this so even if the cost is say, I will pick a crazy number, fifty thousand dollars divide fifth thousand by eighty six what is that seven hundred dollars I do not know, do the math. You cannot do a sewer connection at your house for seven hundred dollars per person. So when you break it down on a per person basis it really is affordable. Councilman Brewer-I understand that but, does that, if we do this and it goes through does this automatically include those people in the district? Town Counsel Hafner-No, if you go this route there is no district. Councilman Brewer-So what happens hypothetically Councilman Boor-Well, he is going to want capacity to off set costs. Councilman Brewer-I understand that but you still got to remember the cost that are occurred now we are talking about two hundred thousand dollars that he is putting on top of the project. Councilman Boor-We are not paying a hundred and forty Councilman Brewer-That is what I am saying. So, that cost is his, which he has to spread out to the people within the district. Councilman Boor-I am sure this is not the route he wants to go. Councilman Brewer-I couldn't agree more Roger but I am just saying now, .. Councilman Boor-Don't argue with me. Councilman Brewer-I am not arguing I amjust saying be here at six thirty and all these things are brought up and we can make a decision by seven o'clock? I do not feel comfortable doing that. Attorney Lapper- The exact same line is going in the ground that would have been put in Councilman Brewer-Believe me, I understand that but I am talking about the bottom line as far as cost. How can we do this without even knowing what the costs are to those people? Attorney Lapper- The only difference is it is not the towns money so somebody is going to have to make up for that and it will be all the parties but we cannot do it the other way because the numbers were wrong because if we have to include the prevailing wage all those numbers are going to be increased by seventy thousand or more anyway. Councilman Brewer-I understand your situation, I really do, but. Attorney Lapper-They would have to share in that so would the town so the numbers would all go up. Town Comptroller Hess-Let me just say that we are not just going to redistribute the one hundred and forty thousand among the existing users because that is still going to be for future capacity anyway. That is something, it may not be that exact number but by formula you are going to have excess capacity that the Town would have been buying you are going to have to carry that as an asset to sell to someone else. So, that one hundred and forty is not going to be distributed to Baybridge it is still going to be an asset an inventory, the way I see it. ... Mr. Schermerhorn-...with O'Connor we were going to be out there this week. Councilman Boor-This thing with the union this doesn't bring in any more inspection teams or anything all it did was raise the cost of the project it did not make it a better project. Councilman Brewer-It is a fear I have that these people are expecting a dollar that they are going to pay and for nobodies blame if Rich goes back to them and say look folks it is going to be a dollar seventy five and they say gee we cannot afford that we are out we are going to do something on our own that is my fear. I am not saying it is going to happen or it will or it won't. Town Counsel Hafner-That is a risk that Rich is saying he is accepting. Councilman Boor-He is the one taking the risk not us. They do not have to be in the district. Town Counsel Hafner-He is the one that is understandably nervous. Councilman Boor-Baybridge if they think they can do it cheaper they can do their own thing they do not have to be in the district. Councilman Stec- With this route they now have an option they did not have before, they can opt not to participate before they would have had to. Councilman Boor-If they think they can do it cheaper they can use prevailing ..and do their own. Supervisor Brower-Baybridge never signed a contract with Rich because they could not apparently come to any ... Councilman Stec- Tim, I understand what you are saying worse case scenario but from what I have seen so far I do not think we are going to get to a worse case scenario. Councilman Brewer-I hope not. Councilman Stec-I think that the people in Baybridge want to buy into the sewer, Rich is going to be willing to take on the financial risk and the rest of the would be users getting what they did not have before they have the opportunity to say forget you guys I do not even like a dollar, I do not want anything and they have that option. But, I do not think it will be significantly.. Supervisor Brower-My understanding is that they are either going to have to reconstruct their fields that have failed or they are going to have to make another decision and my understanding is this is a cheaper option for them ... Councilman Brewer-The ultimate result Dennis I would want them on sewer no question about that. Supervisor Brower-I think they have an exposure that they have had an exposure which they are going to continue to have which is finding the lines and connecting them all into a sewer but that has been the problem. They have had prior to this time and that is not our problem at this point, that would be, Baybridge would have to work that out amongst themselves to straighten that out. The Town previously had encouraged, you know Rich, Baybridge to work with Rich to work out an agreement and they have not done that. Councilman Boor-Your point is well taken and, but I think it would be a stronger point if they had already signed on, but they had not even signed the contract so it is like. Councilman Brewer-Doesn't this dissolve the district? Town Counsel Hafner-It would be our recommendation that the Town Board do go through a formal rescission but it was our recommendation and we have not had a chance actually to talk to Ralph and Mike that we hold off for a few months just in case. This has had lots of quick twists turns and if we leave things where they are there may be some way that they can still pull it back to where they were going and if so we will leave it open. But our recommendation subject to Ralph's and Mike's of course the Town Board was that in three months if nothing has happened you rescind it then because you cannot just have it out there. Councilman Boor-So keep it the way it stands and then if we choose ok, what is being proposed but not rescind. Town Counsel Hafner-Give them a few months, I don't think anything but, who knows we are moving fast. It is a process to go thorough this if there is any way they can pull it back then we will leave it open if not we will rescind. Mr. Auer-It would have been anyway until the final order was issued the contract with the map, plan and report specified a year so until the final order was granted so it would never actually become a district until Town Counsel Hafner-Exactly it is not until the final order that is the way we drafted it. Mr. Auer-Way down the road Town Cousnel Hafner-But still you do not leave them out there hanging. Councilman Boor-Are we talking about doing something with specific language tonight in otherwords, I do back to my yes, Rich wants to recoup additional costs but at some point in time? Attorney Lapper-No, that part Councilman Boor-That is way down the road. Attorney Lapper-Not way down the road we will get started within weeks to come to the town and put together the plan for the transportation corporation for your approval but we have got to go to the Department of Health at the same time so it will take a number of months to work it out, but we will come in with our application. Rich does not want to buy a line that can service the future uses and not have the legal right to sell it to other people to sell the capacity because then he is just over sizing the line for himself. So, we will certainly be back. Town Counsel Hafner-(reviewing the resolution) I wanted to go through some of the resolves, just because John has not seen it and we had some language ... Supervisor Brower-Requested that the resolution be read. Town Counsel Hafner- It is a resolution authorizing Schermerhorn Construction Inc. as out of district users for wastewater connection in granting right to construction wastewater facilities along Bay Road. WHEREAS, Schermerhorn Construction, Inc., is working on a project and constructing a building on Bay Road in the Town of Queensbury for the Glens Falls Hospital and such project is a matter of public benefit, and WHEREAS, Schermerhorn Construction, Inc., is going to build wastewater infrastructure which will benefit this property and other properties in the area, and WHEREAS, such wastewater infrastructure shall be that described in the Map, Plan and Report of Thomas W. Nace, P.E., an engineer, licensed by the State of New York dated August 16th, 2002 regarding Central Queensbury Quaker Road Sewer District Extension No.7, and WHEREAS, the Town Wastewater Department shall have the right to inspect and review the installation of such wastewater infrastructure, and WHEREAS, Schermerhorn Construction, Inc., intends to consider forming a transportation company to provide such services to other properties in the area, and WHEREAS, the Queensbury Town Board has determined that allowing this project to connect to Town sewer lines as an out of district user will be in the public interest, NOW, THEREFORE, BE IT RESOLVED, that the Queensbury Town Board hereby authorizes Schermerhorn Construction, Inc., to be an out of district user for wastewater connection provided that such Schermerhorn Construction, Inc., shall sign an out of district contract in a form acceptable to the Town Wastewater Director, Wastewater Deputy Director and Town Counsel, which contract shall, without limitation, include provisions making it clear that all costs of the infrastructure and costs of connecting to and using the Town system (including, without limitation, City of Glens Falls buy-in fees, annual ad valorem equivalent charges, and operating and maintenance charges) are to be paid by Schermerhorn Construction, Inc. and also providing that if Schermerhorn Construction, Inc., shall default under such contract the Town has the right, at its option, to become the owner of all wastewater infrastructure and related easements at no charge to the Town, and BE IT FURTHER, RESOLVED, that the Town Board further authorizes the granting to Schermerhorn Construction of an easement along Bay Road where the Town has received such easement, provided such easement shall be on a non-exclusive basis where the Town retains full rights to install its own sewer facilities at a later date should it decide to do so, and such easement shall be in a form acceptable to Town Counsel, and BE IT FURTHER, RESOLVED, that the Resolution concerning the granting of the easement is subject to permissive referendum in the manner provided by the provisions of New York State Town Law Article 7 and the Town Board authorizes and directs the Queensbury Town Clerk to file, post and publish such notice of this Resolution as may be required by law and to cause to be prepared and have available for distribution proper forms for the petition, and BE IT FURTHER, RESOLVED, that in the interim, the Town hereby authorizes and grants Schermerhorn Construction, Inc., a license to work on such property to install such wastewater infrastructure, and BE IT FURTHER, RESOLVED, that all parts of this Resolution are contingent upon Schermerhorn Construction, Inc., building such wastewater infrastructure as detailed in the Map, Plan and Report described above and the Town Wastewater Department's right to inspect, review and approve such infrastructure as it is being installed and that no work shall be done on Town property without first providing insurance in form and amounts satisfactory to the Town Comptroller, and BE IT FURTHER, RESOLVED, that the Town Board further authorizes and directs the Town Supervisor to sign the necessary contract, easement and any other documentation and take all action necessary to effectuate the terms of this Resolution. Deputy Wastewater Supt. Mike Shaw-Bob there is one thing there in the last paragraph Resolved, most of the work is done in the County property so you want to make sure you say Town and County property. Town Counsel Hafner-We do not care about the County Deputy Wastewater Supt. Shaw-We cannot authorize it but they are going to have to have the necessary permits to do that. Town Counsel Hafner-That is their own problem, we are only giving what we can. Do we have any say over what the County does? Deputy Wastewater Supt. Shaw-No. Town Counsel Hafner-So, that is the County's problem. Deputy Wastewater Supt. Shaw-They would have to have the County's permit before they can continue ahead. Town Counsel Hafner-But you need them from the County before you can, that is not the Town's....you do not have a problem with that? Attorney Lapper-We do not have a problem. I have two comments in two places in the Whereas and in the second to the last Resolved, you describe the infrastructure as wastewater infrastructure as detailed in the map, plan and report with the exception of the Walker Lane line because that is what the Transportation Corporation law would not allow Rich to build that and sell that capacity to someone until we form the Transportation Corporation, ..building the force main and pump station going up Bay to the pump station, we cannot build that until we do the Transportation Corporation. So, that portion of it. Town Counsel Hafner-I would have to look through our Wastewater Department whether that's. Attorney Lapper-That is the part that services ... Deputy Wastewater Supt. Shaw-We normally have, any time we have done a contract customer we have had the contract signed before construction started. I think the whole key to this thing is the contract with the officia1...approved signed and agreed upon. We have done contract customers before and most of the time in individual homes and I think that is key because that spells out what you expect. Attorney Lapper-Can we say subject to signing the actual contract. Deputy Wastewater Supt. Shaw-I would think so. Town Counsel Hafner-What is subject to? ...two different things? Deputy Wastewater Supt. Shaw-Sign the actual contact...we have a contract customer it is a contract between the town and the customer Rich is the customer the contract should be signed before the works starts. Town Counsel Hafner-But he wants to start work like tomorrow...that is what you are saying? You are saying that this contract needs to be signed. Councilman Boor-And the reason for that is and I am sure I understand what it is, but? Deputy Wastewater Supt. Shaw-Certainly onto his end I guess if he does work on his own private property if he starts... Attorney Lapper-How quick would it take us to get ..we would like to be in the ground in two days if possible. Councilman Boor-He probably can on his own property. Mr. Schermerhorn-We are almost done on my own. Councilman Brewer-We have a meeting Thursday how about we act on this Thursday and you get the contract made and sign it and do it. I am uncomfortable doing something this fast as, that is this significant, no reflection on anybody. Supervisor Brower-Starting at 7:00 or 6:30 excuse me, but then we have the continuation of that 7:00 that will probably go I would imagine maybe an hour. Attorney Lapper-Bob can you get me a copy... Councilman Brewer-I do not have a problem with a special meeting on something like this. Deputy Wastewater Supt. Shaw-Why can't he move ahead with his contract customer serving his building for the hospital and that is going to take a few months certainly, that is a contract customers, as far as the rest of the idea why can't you meanwhile go to the State Comptrollers Office and argue the situation for prevailing wage rate? Attorney Lapper-I think that is going to take litigation because I have this opinion I think it would take six months or a year. Deputy Wastewater Supt. Shaw-You would have a few months certainly before he needs to form a Transportation Corp. Councilman Boor-Is it because you have already purchased materials for water..and stuff? What is the advantage in..? Attorney Lapper- The Transportation Corporation is a way to do it legally without having to worry about the prevailing wage. We do not want to have to increase the cost...I do not know the answer before and the State could take a real hard line and say what if every municipality that has ever done a sewer, water line extension hasn't abide by prevailing wage we think that everybody is wrong it is still a municipal project so theoretically we could go appeal it and lose. Councilman Brewer-Wouldn't this be the same as a road, the contractor builds a road, turns it over to the Town why is he paying prevailing wage, what is the difference. Attorney Lapper- That is why we were surprised by it. Councilman Boor-It does not make it a better project. Councilman Brewer-No it really doesn't. ...where is the common sense in this. Attorney Lapper-Ifthis works and the Transportation Corp. you guys will approve the rates so it will be fair...no one is going to get.. Councilman Brewer-Would anybody else feel more comfortable if we did that? Town Counsel Hafner-What? Councilman Brewer-Thursday. Gives us time to ... Councilman Boor-I do not think he is going to have it ready I mean it will be on side just to have it ready by Thursday anyway, right? Town Counsel Hafner-Thursday if awfully short for, I have a Town Board Meeting Thursday at 7:00 o'clock in Corinth. Councilman Brewer-Corinth, N.Y.? Town Counsel Hafner-I can try to get the contract together. Councilman Boor-I will be gone as of Friday so if something needs approval I do not know if there is a majority I do not know how everybody feels here. I have no problem with it, it is certainly not the way I would like to go either but we did not cause it, they did not cause it. Councilman Brewer-I do not have, no problem with that at all. Councilman Boor-I don't think it keeps Baybridge from either saying yes, no or taking another route we are not really putting them in a corner. The fact that they did not sign on a contract right now tells me why didn't they? Councilman Brewer-I do not know. Attorney Lapper-He is building the infrastructure that will accommodate Baybridge. If it was just a private deal he would be building it for himself and.. Councilman Boor-that is later on down the ... Attorney Lapper-Going up Bay Road for the future. Comptroller Hess-When you say you are not going down Walker Lane you are not going down to your property at the end? Attorney Lapper-Until we form the Transportation Corporation what he is not allowed to do is to service other users. So in terms of putting that expense in and drilling it going up Bay Road that would all be done as part of the Transportation Corp. what he needs to do now is there is a building that is already under construction that does not have sewer, Baybridge has sewer even though they are pumping out periodically they are being serviced. Councilman Brewer-Is there a guarantee that, that will happen though the rest of the sewer. Town Counsel Hafner-There is no guarantee in the resolution. Unknown-That is where you have got to be fair, I am going to need it, I need it as bad as they do, well, not as quickly as they do, but I need I am across the street from them but we are bring I have another office building that was approved and my plan is not changing with the sewer, it is coming right up to the edge of Bay Road right where Walker Lane is so I am not that much further to get up that road to my apartment complex which is right there. Councilman Brewer-Can we put some language in there to protect this, who knows what is going to be done so that, that? Town Counsel Hafner-But, when you start expanding it you start controlling, you start requiring things that you cannot require the result. Because getting a Transportation Company takes more things and has more things are out side control we can expect that they can get it but we cannot guarantee that. Councilman Boor-But I mean the economics is such that he obviously he is going to want to sell sewer capacity. Mr. Auer-Just like the Town did. Councilman Boor-I know you do not want to have this capacity and just be paying and not using it. Supervisor Brower-There are other ways you are picking up all the O&M and all the ...you are motivated to... .... Councilman Brewer-I do not question any bit of your integrity, Rich. Mr. Schermerhorn-I have done everything everybody has ever asked me for the Town...I have done everything and more that the Town has ever asked so we have never had an issue and my plans and intentions are to help all the other people. Like I said, I have made an hefty investment in this project and I have got to deliver that building by June 1 and I just cannot afford any more surprises or obstacles at this point. Councilman Brewer-That is all I am trying to do is protect the best interest of the residents of the Town, God knows what would happen between now and whatever. Mr. Schermerhorn-...I respect...do the map, plan report I have spent all this time and money... Deputy Wastewater Supt. Shaw-One thing could happen you put the infrastructure to serve your building now, ok, that is a contract customer and move ahead with the Transportation Company if the Transportation Company for some reason goes out the door would you donate that infrastructure to the Town that you put in? Mr. Schermerhorn-I do not know because.. Deputy Wastewater Supt. Shaw-The Town could turn around and offer service to other people and you would not need a Transportation Company. Mr. Schermerhorn-If all else, if I was to do that I would be paid for it than just donate it. I would rather recoup some of the costs obviously like anybody else, but. Deputy Wastewater Supt. Shaw-I amjust offering that suggestion, certainly that is the all the infrastructure...was built before had been the developer...and donated to the ... Attorney Lapper-Let me explain one thing, under the Transportation Corporation Law once we get to that point while you are building the stuff, while you are building the infrastructure you have to take all of your stock and pledge it to the town, the stock in the Transportation Corporation so that if you stop building in the middle the Town grabs it. So, all the protections are there and we just got to get to that point. Deputy Wastewater Supt. Shaw-that is the same thing we have done for years in the ...extensions...we have done that for years in districts extensions. Supervisor Brower-Requested that the public be notified that the Board will be over at the next meeting in a few minutes. Deputy Town Clerk Barber-Notified the Supervisor that there are public hearings scheduled for 7:00 P.M. Supervisor Brower-Noted that we are running late. Town Counsel Hafner-I will work on the resolution tonight you are going to revisit it on Thursday when the Board's .. Supervisor Brower-Whatever you feel comfortable with. Councilman Brewer-I think everybody knows how I feel. Councilman Stec-Ijust as soon go for Thursday if it is all the same to you guys. Councilman Brewer-If we have the contract ready I do not have any Councilman Stec-I have not heard anything that says that it has to be done tonight and not Thursday. Attorney Lapper-It is a question of whether Bob can commit to getting us the contract because it is one thing to wait till Thursday because Rich ...be around Friday, if we can have the contract but if ..can't get to it then I do not know what the benefit of waiting three days. Councilman Brewer-The ball is in your court Bob. Town Counsel Hafner-This is all immediate, we have not had time to think about those issues, we have worked hard to get this resolution that was asked for, for tonight we were not focusing on the draft.. Attorney Lapper- The contract user is the same as any other contract user though, right? Except we are sizing it to accommodate the ...it is the same contract. Town Counsel Hafner-I am going to look for input from my two bosses on that. Supervisor Brower-The way I view it we could move forward and pass a resolution with minor modifications like this with the stipulation maybe in the wording that construction not begin until the contract is signed. Attorney Lapper-I would rather wait until Thursday and know that we have got the contract and we are all... Supervisor Brower-Then I think we better wait until Thursday. Councilman Brewer-We can almost do them at the beginning of the meeting, they do not have to wait. Councilman Boor-Bob is the one. Supervisor Brower-No, they have got to go at the end. Councilman Brewer-Well, it does not matter I will.... Town Counsel Hafner-I will meet with them tomorrow afternoon if they can fit me in, I am busy all mornmg. Councilman Boor-Is it that you are not sure what we need to include in it? Town Counsel Hafner-I am not sure what they are going to ask me to put in it and what we need to do to protect the town. Until I have input from the people that I usually get input and I do not want to commit to having.. . Supervisor Brower-We thought it would be better tonight to consider this would be that it is at a regular town board meeting that you take action with the stipulation that no further work proceed until the contract is signed. Councilman Brewer-It serves no purpose though. Supervisor Brower-Well, it does, because we would have to have the contract signed before they could move ahead. Councilman Brewer-We would have to do that anyway. Supervisor Brower-I know, but do you want to do it at a workshop session or do you want to do it at a regular town board meeting. Town Counsel Hafner-The way this resolution was drafted was that the part that before they connected they would have to have the contract with the Town. Councilman Boor-As opposed to Town Counsel Hafner-As opposed to being work, because you still have control you do not let them connect until we have come up with an agreement and that gives us time to work out the issues that Ralph might and Henry might come up with. Councilman Boor-Are you comfortable with that? Attorney Lapper-Of course because then he could start building on land ... Councilman Boor-I know, so you trust us. Attorney Lapper-I trust ... we are a contract user absolutely. Water/Wastewater Superintendent Ralph VanDusen-You have already approved the concept of the materials the route the piping whatever, allowing them to put it in, it is a gamble that he is taking. Councilman Boor-He is the one at risk. Town Counsel Hafner-He is building it to the specs that the Town requires. Councilman Boor-At an additional cost that was unforeseen. Water/wastewater Superintendent VanDusen-If you want to make that say that you cannot make that final connection that is fine, it is a small thing but I think it is no gamble on the towns part. Town Counsel Hafner-If they cannot connect until we have an agreement rushing to get an agreement in two days is just basically what it is, Tuesday and Wednesday. Supervisor Brower-So you are saying even without the contract. Water/wastewater Supt. VanDusen-Quite honestly, I would be happier to take more than two days to ... Councilman Boor-But I would like to let them more forward and in going with what Mike said that typically we do not do that with a signed contract so are we making an exception and I do not have a problem with that, is that the course we are going to take? Town Counsel Hafner-But the Town still has its protection it doesn't give an agreement it doesn't, like he can't open the connection. Supervisor Brower-Wouldn't Board Members rather take action stating that we have to have a contract before construction proceeds and approve this at a regular town board meeting...as opposed to ...at a workshop session? Councilman Boor-I am concerned with a June 1st deadline and, when is the next regular workshop, or regular meeting? Town Counsel Hafner-Two weeks from today. Councilman Boor-So, you want him to wait two weeks. Supervisor Brower-No, I am not saying that I am saying. Councilman Boor-What are you saying. Supervisor Brower-What I have suggested is we consider taking action on this with the idea that a contract has to be signed between the Town and Schermerhorn before Councilman Boor-The connection is made. Supervisor Brower-Well, no Councilman Boor-I guess I am missing something. Attorney Lapper-That does not help us if we cannot get a Supervisor Brower-Ralph said you do not need it until the connection is made? Town Counsel Hafner-That is how this was drafted. Water/Wastewater Supt. VanDusen-You approve the concept. Supervisor Brower-We approve this concept. Water/Wastewater Supt. VanDusen-There is nothing in the contract, I will be shocked if there is anything in the contract that changes anything that is going to go in the ground. Town Counsel Hafner-I do not think there is. Councilman Brewer-As far as pipe and size... Water/Wastewater Supt. VanDusen-The only difference between the map, plan and report and what he is going to have to do he is going to put a meter in. That has already been discussed with the engineers where ever it gets put, that is not a real big issue. I personally do not have a problem with them starting construction. I have a problem with them connecting, I have a problem with them pumping anything into our system without a contract. Supervisor Brower-You are saying no connection until the contract is achieved. Town Counsel Hafner-Which is what we drafted. Supervisor Brower-Which gives us quite a bit of time .. Councilman Boor-We still get to set the rates, I do not see a problem. Water/Wastewater Supt. VanDusen-It is a ..contract with the Transportation Company and maybe they are exactly the same and maybe they are not I do not know. Town Counsel Hafner-Right now we do not have a contract with...we have a contract with Schermerhorn Construction Inc., when he takes the next step he has to come back and between then and now I will have had time to read that statue. It has been a long time since I looked at that. Supervisor Brower-Until a Transportation Company is formed, Schermerhorn properties will be responsible for all O&M costs related to this project. Councilman Brewer-There will be no O&M because we are not allowing them to hook up. Comptroller Hess-He is going to use it. Supervisor Brower-He will be the only user. Town Counsel Hafner-We will have a contract before he hooks up and that contract is going to require him to pay the Glens Falls buy in the ad-velorum equivalent and the O&M charges. Councilman Boor-This is a hell of a deal for us. Supervisor Brower-Hearing that information from Ralph VanDusen our Water and Wastewater Director does that change any of your minds? (Board agreed to vote on the resolution at Regular Session) Water/Wastewater Supt. VanDusen-I just have one comment I would like to make and it is in regard to people in Baybridge and I think, in my mind it addresses your concern and I don't know if it is possible to make you feel happy tonight but if this scenario had not occurred the prevailing wage issue, people in Baybridge would have been forced to hook in and forced to pay the rate. I had people over there tell me they cannot afford that, they think they are being raped right now, in that structure. Under this scenario they will have the option of hooking into the Transportation Company potentially when that is done they will have the option to have Mr. Valente create his wonderful system on the other side of the road if he and the Town chose to allow it. They have the option of rebuilding their septic system and they have some options available that will not be available to them under the older scenario. So, I agree that I think this rate that they will pay through a Transportation Company is likely a littl higher than what they would have paid before, I do not know that, that remains to be seen but they do have other options that do not exists under the older scenario. Councilman Boor-The fact that they did not sign the contract to begin with says they are not sure what, they want to me. Comptroller Hess- I need to ask one question regarding the resolution if it is going to be considered tonight, John had said earlier that the description of the map, plan and report should be modified to exclude Walker Lane until such time as the Transportation Company is completed? Town Counsel Hafner-Is that ok with you guys? I do not see a reason why not that is how it was envisioned. (changes in the resolution page 3 in the Resolved section and also in the Whereas section to reflect the following) ...in the map, plan and report with the exclusion of the Walker Lane portion. RESOLUTION ADJOURNING SPECIAL TOWN BOARD MEETING RESOLUTION NO. 145.2003 INTRODUCED BY: Mr. Theodore Turner WHO MOVED FOR ITS ADOPTION SECONDED BY: Mr. Tim Brewer RESOLVED, that the Town Board of the Town of Queensbury hereby adjourns its Special Town Board Meeting. Duly adopted this 10th day of March, 2003 by the following vote: AYES: Mr. Boor, Mr. Turner, Mr. Stec, Mr. Brewer, Mr. Brower NOES: None ABSENT: None Respectfully submitted, Miss Darleen M. Dougher Town Clerk-Queensbury