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1993-07-22 SPECIAL TOWN BOARD MEETING JULY 22, 1993 5:00 p.m. MTG.# 54 RES. 412-413 TOWN BOARD MEMBERS PRESENT Supervisor Michel Brandt Councilman Betty Monahan Councilman Susan Goetz Councilman Nick Caimano Councilman Pliney Tucker DISCUSSION HELD REGARDING STATE CONTRACT ON LANDFILL CLOSURE PROJECT Supervisor Brandt requested that the Town Attorney review the contract. Attorney Dusek-I have received word from Dan Kane that the contract for State Finance Assistance which we had gotten in a few days ago, and which we had considerable time to respond to according to the letter, 45 days, Mr. Kane told me there was new legislation that had been passed by the legislature that could be signed by the Governor at any time that would affect the amount of money the Town of Queensbury may be able to get under the program, there is a change in the prograrn. He believe that under the new program the eligibility date for going back in time over what you can get, not so much what you will do in the future but you can get in the past, that date may shift forward that we may lose out on money. This is all ifs, may's, but's and everything else but I heard enough yesterday to say maybe we should get going on this real quick so we can get this thing together by today so that we do not, for all I know maybe the bill has already been signed by the Governor and it is all in vain. It seemed to me that I should do my best to try to get everything together for you and give it to you and see what you want to do tonight. The purpose of the meeting is to basically look at the funding contract from DEC so that we do not lose any opportunities that are available right now, for all of the funding. Reviewed the agreement for proposal for funding for the closure of the Queensbury Landfill. The agreement is in the amount of one million two hundred and five thousand one hundred and fifty eight dollars, it is not in the full amount that you could possibly get under law. The reason it is not in the full amount that you could not get under law is because they do not have all the money, I guess that they need to fund these things. The agreement does provide that should more money become available you will get funding up to two million. The way the funding works through the State is that you get up to 50% of your landfill closure cost funded or maximum of two million which ever is lower, will payout. Reviewed the terms of the contract...There are some provisions of this contract which I find somewhat bothersome that I feel I should alert the Board to on the other hand I will tell you up front that I spoke with other Towns that have gone through this, I asked Dan Kane for a copy of the agreement Lake George signed, their agreement was quite similar to one that has been presented here, there has not been any changes to it except for, in Schedule A there was a series of changes made there but they do not seem to be the critical ones. The critical ones in the main agreements seem to be similar. I also spoke to Bruce Jordan who represented one of the other towns, and I said I got provisions in here that are bothersome, were you successful in getting the contract changed? He said no, it said basically take it or leave it proposition, that the department is dealing with a lot of towns and that these are the agreements. He had gotten some sort of a response in a letter, and I asked that, that be fax to me. Basically, as I understand it, this is it you either take this or leave it. Some of the things I am about to go over in the contract does not look like there is a lot that we can do to get DEC to change it that is the feeling that I am getting. CONTRACT Page 2 of 12 Whereas clauses, stand for history, tells you starting with the fourth one down it says the municipality agrees to undertake all work and to comply with all terms and conditions of this contract, this contract says you are going to close your landfill out in accordance with the plan that has been submitted. In the 6th clause down it says you will fund your portion to close. So, you are agreeing with DEC that if they give you their money you are going to come up with the difference. In the next to last Whereas clause, are agreeing to close it in accordance with the consent order. Page 3 of 12 2A They agree to re-imburse one half of your total cost up to one million two hundred and five thousand one fifty eight, only those cost incurred during the term of this contract are eligible for reimbursement. The term of the contract is a few pages down, 9 of 12 it is number 12. The term of the contract will be from January 8th 1986 to December 31st. 1995, which allows us to go back and claim some of the money we have already spent. Page 3 of 12 The municipalities agree to 1. complete the project in accordance with the plans and reports approved by the department, this would be your closure plan that Dick Morse has been working on. 2. That you will perform the closure work in accordance with the attached schedule...(Schedule 1, attachment 1)...we are under a consent order change that allowed us to August 1st. to 93 for some of this, I am concerned about this and will talk to them tomorrow if they will change the dates...one of the most important aspect of this contract is the fact that if you do not comply with this contract you have to refund every penny, even if you properly spent the money say 75% of it and goof at 80% you have to refund everything plus interest. Councilman Tucker-How many times have we agreed to everything that is in here? Attorney Dusek-As far as the actual closure and the actual mandates, a number of times, through the consent order. But as far as the refund of money under the grant program, no, you never had to agree to that. But obviously if you do not agree with their terms you will not get the two million dollars. Supervisor Brandt-In all likelihood you are not going to get two million dollars until you have pretty well spent...Attorney Dusek-Re: Schedule I will call to see if the dates matter or they could be changed and with your permission that is what I will do. If they don't matter I will leave it and Mike will sign it and if they do matter and the department is willing to change them then we will change thern. Supervisor Brandt-We would like to get them to parallel our closure consent order. Councilman Monahan-Otherwise they could say we are not qualified and pull the money. Councilman Caimano-Page 4 of 12 E VI says: changes in the project in any way that would substantially alter the nature or scope of the project and the department has the authority to determine what is substantially altering the contract. Substantially altering the contract is a nebulous term, that is kind of scary. Councilman Monahan-On the other hand if it is anything that changes our closure plan they have to approve it and initial it before we can even do it anyway. Attorney Dusek-The counter balancing to that if you will. Every time we want to change something it is going to be ajob...we will have to check the consent order, the closure plan, check this agreement, that is what you are going to have to do. Councilman Monahan- Question on preliminary grading and shaping on page 2 it says it is not applicable, why not? Attorney Dusek-I think that is just the scheduling date...the dates seem to be like those in the consent plan... sent a copy to Morse Eng. to get his opinion on the dates....Councilman Monahan-Noted the tight schedule for vegetative cover... Supervisor Brandt-noted that we do not have an approved closure plan yet, it is all based on a good faith effort on their part and ours. Attorney Dusek-DEC may not be able to give extension into too far distant future even if they wanted to, under the regulations in which this grant program is established you must cease taking waste eighteen months from the date of approval of the application. Our application according to this letter was June 19th, 1992, I do not believe that is the date that they would take as the approval date, it would seem like right now would be the approval date...that is another point I want to clear up. Reviewed payment dates...Councilman Tucker-this is if they have the money to give, commented on the Town of Eddenburg, I do not know if they have been paid yet. Attorney Dusek-The contract does have a provision that this is ..., meaning not binding on them, to the extent that they do not have the funds. They basically can get out of this thing any time they want to. Page 4 of 12 E. talks about failure to comply...penalty clause...5 of 12 if you fail and it is not corrected by the time period and you are in breach and they want all their money back plus interest if you fail to pay it within 365 days they can go after any money that you may be entitled to have coming to you from other State Assistant Programs. 3a. Deals with your obligations as a municipality it is basically saying if you get money from some place else then you should take reasonable steps to get it someplace else so we do not have to give it to you. ...it seems to refer to eligibility for Federal funding if there is any. Councilman Caimano-Noted that it does not say that, it says any sources... Supervisor Brandt-We can use that to force that hand on Rolite. Councilman Tucker-Suppose we made ten million dollars on our landfill, we still qualify for the million two that they are going to give us, right? Attorney Dusek-This is an interpretation, if other sources means things like Federal Aid or Grants or programs that you are eligible for that is one thing, if they can argue that other sources like if you could payoff the whole landfill and have money to boot then they might say well, we want that money, this is the clause they try to come in under. It seems to me that, that is not what was contemplated. Councilman Monahan-Re: C&D money that is committed to closure, we have to be careful how we balance the books in that respect. Attorney Dusek - I think the other sources are outside the municipality. Councilman Monahan-I think we have to find out. Supervisor Brandt-It is hard to change what we have already done, but in the future is we get into Rolite maybe we ought to run that as a separate division as a separate entity that sellS a product to a closure. Councilman Monahan-Will they consider that an evasion? Attorney Dusek-The bottom line is, if you want any money you will have to sign it. #4 Project Insurance-requirement that whoever you do business with you have to have insurance...1 have sent a copy of Gary Eddy to review this...B. Bonding-not unusual... 5. Project Management-The municipality agrees that it will complete the project in accordance with the schedule but you will have management plan developed and submitted 12-1-93 Councilman Caimano- Page 7 of 12 D, questioned if work in the past was done with departmental approva1...Attorney Dusek-It does not say you cannot get the approval now. Councilman Caimano-E is going to be Jim Coughlin under Dick Morse's direction? Supervisor Brandt-We hired Morse to do that. Attorney Dusek-This is something you may want to look into to see if in fact Jim can be used and that you in tern can justify part of his salary against that. F. You will agree to advertise for and solicit project bids within a reasonable time after receipt of departments approval of plans and specifications, it is bothersome to me because we are in an odd situation with the Queensbury landfill being the consolidated landfill submitting our closure plan the way we did, open until October Ist....Supervisor Brandt-We are trying to go to bid as soon as possible for cell one, I have been in touch with DEC to push them along to give us this approval so we can go to bid yet this year, I do not know if we will make it. Attorney Dusek-The clause bothers me because and I think this is the problem with this type of contract because it is meant to apply to all towns and it does not really specifically address Queensbury in terms of our uniqueness under this agreement. You look at it and what could that mean, it could mean as soon as they approve regardless of what the consent order says we can stay open we have got to close and do this work, hopefully they will be reasonable as we go through this thing. G. Agrees to resolve all bid protests and notify the department H. Represents that it has title I. You will be fully responsible to maintain and monitor the project 1. The municipalities agrees that all work perform in relation will be in compliance to Federal, State rules and Ordinances. There is a provision that says DEC has the right to attend all conferences and meetings and basically keep involved in everything that goes on. 6. Inspection... here again each is provided with unrestricted access to everything. ... we will have to make sure all contractors comply with that. Facilities developed and purchased have to be available, you agree to notify the department when it is complete. 7. A. By entering this agreement you are waiving any right to assistance you may have under 271313...what that section deals with is inactive hazardous waste landfill...our landfill has be disqualified from that... the only thing that concerned me there is that if we are re-determined to be an inactive hazardous waste and we have given up our funding here, we will have to cross that bridge when we come to it. Supervisor Brandt-There was no evidence that there was a question of whether we were or weren't there was evidence that there was nothing moving, nothing shown to be a hazardous... B. is that, you will not construct a new landfill over the closed landfill C. If you close it in phases, the municipality agrees to close all subsequent phases in accordance with the departments regulations for new landfills which was in effect six months before the subsequent phase because inactive, that we are going to take a look at. I do not think it means that you have any particular problems in closing, we are not under the type of phase that they are talking about. 8. Signs If you use a sign you have to provide a notation on there that it is assisted by the State of New York. 9. No waiver of remedies clause...the municipality or State do not waive any remedies or rights in the contracts because they let something go one time around. lO-to the very end...boiler plate 16. Affirmative Action ...requirements in all contracts Attachments: A. 1. Standards Form they will have no liability under this contract if they have no funds 2. you cannot assign this to anyone else 3. You need the Comptroller approval on this agreement. 4. Workmen's compensation 5. Non discrimination requirements 6. Wage and Hour provisions 7. Non collusive bidding requirements 8. International boycott provision 9. Set off rights 10. Records 11. Identify information, privacy notification 12. Equal Opportunity for minorities and women 13-17 standard clauses Notice there is no arbitration in these if there is a problem you have to go to court Appendix B 1. Department shall have the right to postpone, suspend, abandon or terminate this contract in such actions shall ...breech of contract. 2. Indenmify and Save Harmless the State from any lawsuits, claims etc.... 3. Conflict ofInterest page 4 of 8 Request for payments you have to submit the proper forms. To the extent that Federal Funds are provided, contract agrees that it will comply with all the Federal laws. .....Criteria of Standards for Affirmative Action...Number 8 on page 6 You will comply with all legal requirements. 9. Post prevailing wage rates. Number 12 on page 8 of 8 described Tropical Hard wood will not be used...Conflict is the next provision. Appendix e. Reimbursement claims... Supervisor Brandt-You have one decision to make, yes or no. RESOLUTION APPROVING AND AUTHORIZING EXECUTION OF CONTRACT FOR STATE ASSISTANCE PAYMENTS FOR MUNICIPAL LANDFILL CLOSURE PROJECT RESOLUTION NO.: 412,93 INTRODUCED BY: Mr. Nick Caimano WHO MOVED ITS ADOPTION SECONDED BY: Mr. Michel Brandt WHEREAS, the Department of Environmental Conservation has been authorized by Article 54 of the New York State Conservation Law to enter into contracts on behalf of the State to provide State assistance to municipalities in connection with the closure of municipal landfills, and WHEREAS, the Town of Queensbury has previously applied for State funding assistance in connection with the closure of the Town of Queensbury Landfill located off Ridge Road, and WHEREAS, the Town of Queensbury has been notified that its June 19, 1992 Application for State Assistance under the aforedescribed program has been technically reviewed and determined to meet program requirements, and WHEREAS, a contract for State assistance payments for the Town of Queensbury Landfill Closure Project has been received by the Town Supervisor and a copy of the same has been presented at this meeting, NOW, THEREFORE, BE IT RESOLVED, that the Town Board of the Town of Queensbury hereby indicates its approval of the proposed Contract for State assistance payments for the Town of Queensbury Landfill Closure Project, subject to the Town Attorney's approval as to the form of the Contract and hereby approves and authorizes the agreement to the same by the Town of Queensbury, subject, as aforesaid, to the Town Attorney's approval as to form, and BE IT FURTHER RESOLVED, that, subject to the foregoing, the Town Board of the Town of Queensbury hereby further authorizes and directs the Town Supervisor to execute and place the seal of the Town of Queensbury, if necessary, on the aforesaid Agreement and hereby further authorizes the Town Supervisor to take all other steps that may be necessary to request the execution of the Agreement by the appropriate departments or officials of the State of New York, implement the terms and provisions of the Agreement, and, at such time as it is appropriate, seek payment for any expenses incurred in connection with the Landfill Closure Project to date that are eligible for reimbursement and to continually take all steps that may be necessary to apply for and obtain reimbursement of expenses incurred by the Town of Queensbury in connection with the Landfill Closure Project as may be allowed or provided for under the terms and provisions of the aforesaid Contract. Duly adopted this 22nd day of July, 1993, by the following vote: AYES Mrs. Monahan, Mrs. Goetz, Mr. Caimano, Mr. Tucker, Mr. Brandt NOES : None ABSENT: None Discussion held before vote: Attorney Dusek-This resolution says that it is subject to the Town Attorneys approval as to form of the contract, it is understood by the Board that the only reason that, that is in there is for me to check the dates on the change of the, in the back on the schedule of closing dates, criteria that, if they do not matter, Mike can sign it, if they do matter and they can change them they should be changed. If any other problem comes up that we have that it looks like it matters and they won't change them then we have to come back and talk to you all. The second one is you want me to check out the date of 18 months, but I do not think that is controlling as to whether he signs it or not, as to when you have to close your landfill. The other one is other sources question that was a concern to the Board but here again I do not think that is controlling and the only other one I have that is a critical thing in addition to the first one I gave you, the only other one that is really critical to resolve is Cool Insuring to make sure that they feel that there is not a problem with the insurance criteria. As long as they say it looks reasonable then Mike will sign the contract. Councilman Monahan-requested that under the hold harmless that it be checked out that we can do that under our insurance. Councilman Tucker-The date of the start of the closure shouldn't that correspond when they get this approval to do it? They could sit on this thing until December? They have been sitting on it for months. Attorney Dusek-The 18 months, is not the date of closure, the 18 months. is when we have to cease taking solid waste, when we have to close the doors not close the landfill out. Councilman Tucker-18 Months from when? Attorney Dusek-My best guess 18 months from June of93. VOTE TAKEN RESOLUTION CALLING FOR EXECUTIVE SESSION RESOLUTION NO. 413, 93 INTRODUCED BY: Mr. Nick Caimano WHO MOVED FOR ITS ADOPTION SECONDED BY: Mr. Michel Brandt RESOLVED, that the Town Board of the Town of Queensbury hereby moves into Executive Session to discuss a contract. Duly adopted this 22nd day of July, 1993 by the following vote: AYES: Mrs. Goetz, Mr. Caimano, Mr. Tucker, Mrs. Monahan, Mr. Brandt NOES: None ABSENT: None No Action Taken. On motion the meeting was adjourned. Respectfully submitted, Miss Darleen M. Dougher Town Clerk-Queensbury