Loading...
2012-10-23 Mtg 24 SP SPECIAL TOWN BOARD MEETING 10-23-2012 MTG #24 602 SPECIAL TOWN BOARD MEETING MTG. #24 OCTOBER 23, 2012 RES. 315-316 5:00 p.m. TOWN BOARD MEMBERS SUPERVISOR DANIEL STEC COUNCILMAN ANTHONY METIVIER COUNCILMAN RONALD MONTESI-ABSENT COUNCILMAN JOHN STROUGH COUNCILMAN TIM BREWER TOWN COUNSEL BOB HAFNER-Town Counsel LEAH EVERHART-Town Counsel TOWN OFFICIALS MIKE SHAW-Wastewater Superintendent 1.0 RESOLUTIONS RESOLUTION AUTHORIZING SETTLEMENT OF LITIGATION BETWEEN THE TOWN AND CITY OF GLENS FALLS CONCERNING BILLS ASSOCIATED WITH WASTEWATER TREATMENT RESOLUTION NO.: 315,2012 INTRODUCED BY: Mr. Daniel Stec WHO MOVED ITS ADOPTION SECONDED BY: Mr. Tim Brewer WHEREAS, the City of Glens Falls (City) owns a Publicly Owned Treatment Works Treatment Plant (POTW) for the treatment of wastewater and the Town of Queensbury (Town) discharges wastewater to the POTW in accordance with a Wastewater Treatment Agreement previously authorized by Town Board Resolution No.: 168,2002 (Agreement), and WHEREAS, a number of provisions of that Agreement gave rise to confusion between the parties which ultimately resulted in the City's commencement of litigation against the Town in State Supreme Court on February 11, 2011 (Warren County Index Number 55367) (Action) claiming additional monies due pursuant to the Agreement, and WHEREAS, during the pendency of the Action, the parties authorized amendment of the Agreement and thereafter entered into "Amendment # 1 to Wastewater Treatment Agreement Between the City of Glens Falls and the Town of Queensbury Dated April 1, 2001" effective August 1, 2012 (Amendment #1), and WHEREAS, the parties have reached an agreement in principle that, if formally accepted by the Town Board and the City Council, will not only resolve the outstanding litigation, but will authorize action to minimize the possibility of future litigation, SPECIAL TOWN BOARD MEETING 10-23-2012 MTG #24 603 NOW, THEREFORE, BE IT RESOLVED, that the Queensbury Town Board hereby authorizes settlement of the Action based upon the following terms: 1. All outstanding Operation and Maintenance costs accruing through and including July 31, 2012 will be fully satisfied by the payment of$235,589; 2. All outstanding Reconstruction costs accruing through and including December 31, 2011 will be fully satisfied by the payment of$189,000; 3. At the time of settlement, the Town will purchase 150,000 gallons per day of additional wastewater capacity at a cost of$1.10595 per gallon for a total payment of$165,892.50; 4. The Town will purchase 50,000 gallons per day of additional wastewater capacity each successive year for three years at a cost of$1.10595 per gallon for a total of$165,892.50 (three payments of$55,297.50 each); 5. The Town will be obligated to purchase additional wastewater capacity in the future if the Town's discharge (based upon the average during any given calendar month) exceeds its purchased capacity; 6. In regard to the first paragraph of Section 4.04 of the Agreement, the parties will clarify this provision to make clear that the Town need not seek and obtain prior approval from the City where connections to Town sewer pipes are made, provided that the Town's discharge is within its purchased capacity based upon the average discharge during any given calendar month, however, the City's prior approval is needed before any further connection sites are made to the City's sewer pipes; 7. All present and future "Operation and Maintenance" costs will be based upon a flat $2.00 per thousand gallons ($1.496 per 100 cubic feet) rather than the method established previously by the parties; 8. The parties will establish a Joint Sewer Committee, which will be solely advisory in nature, made up of three appointees of the Town and three appointees of the City to meet on at least a quarterly basis to discuss Town/City sewer related issues and report back to the Town and City; 9. The Town and City will amend the Agreement to reflect the revisions agreed to in a manner consistent with this Resolution and the attached Memorandum of Understanding; and BE IT FURTHER, RESOLVED, that upon execution by the Town and City Attorneys of the appropriate litigation settlement documents, the Town authorizes the making of the following payments: SPECIAL TOWN BOARD MEETING 10-23-2012 MTG #24 604 Past "O&M" Bills (13 quarters) $235,589.00 Past Reconstruction $189,000.00 Additional Capacity (2012) $165,892.50 Current Payment: $590,481.50 Paid at the time of settlement Additional Capacity (2013) $55,297.50 Paid by February 28, 2014 Additional Capacity (2014) $55,297.50 Paid by February 28, 2015 Additional Capacity (2015) $55,297.50 Paid by February 28, 2016 Future Payments: $165,892.50 and BE IT FURTHER, RESOLVED, that the Town Supervisor is authorized to execute a Memorandum of Understanding with the City in a form acceptable to the Town Supervisor and Town Counsel and substantially similar to the Memorandum of Understanding attached hereto, and BE IT FURTHER, RESOLVED, that the Town Board authorizes and directs the Town Supervisor to execute Amendment 92 to the Agreement which will be consistent with the Memorandum of Understanding executed on behalf of the parties and will be in a form acceptable to the Town Supervisor and Town Counsel, and BE IT FURTHER, RESOLVED, that the Town Board expressly authorizes the Town Supervisor, Town Counsel, Town Wastewater Director and Town Budget Officer to take any further action necessary to effectuate the intent of this Resolution. Duly adopted this 23rd day of October, 2012, by the following vote: AYES : Mr. Metivier,Mr. Strough, Mr. Brewer, Mr. Stec NOES None ABSENT : Mr. Montesi Discussion held before vote: SPECIAL TOWN BOARD MEETING 10-23-2012 MTG #24 605 Supervisor Stec-Leah if you would for purpose of the record just give a quick highlight summary of what we are doing here and the process and what will happen next assuming we pass this resolution. Attorney Everhart-The resolution set forth the terms of the agreement between the City and the Town for settling the wastewater litigation that was commenced last year. The resolution sets forth the amount of each payment and what each payment is for and sets forth most if not all the other terms of settlement. This resolution also authorizes the payment of all monies that were contemplated for settlement and authorizes others to do, especially the Town Supervisor, authorizes the Town Supervisor to not only execute the attached Memorandum Understanding but also authorizes Town Counsel to sign the stipulation of settlement. The attached Memorandum of Understanding sets forth all of the terms that would need to be amended in the current wastewater agreement with the City in order to effectuate settlement. Supervisor Stec-Just again for the purpose of the record you have an MOU that is ready for my signature and you indicated in an e-mail earlier today that the City Attorney indicated to you that the City was fine with the MOU so we do not anticipate any issues. Attorney Everhart-The City Attorney indicated that the Mayor had reviewed and confirmed that the Memorandum of Understanding is accurate and it accurately reflected previous discussions had between the Town and the City. Supervisor Stec-Again, I believe this evening the City Common Council is expected to take this up at their meeting so we have got some legal paper work that this resolution will authorize me to sign some and you guys to sign stipulation and others and this also will authorize us to sign a check for thirteen quarters of past operation and maintenance bills totaling two hundred and thirty five thousand five hundred and eighty nine dollars. Two years' worth of past reconstruction bills totaling a hundred and eighty nine thousand dollars and additional capacity purchase for this year for a hundred fifty thousand gallons at a total of a hundred and sixty five thousand eight hundred and ninety two dollars and fifty cents. If you add those three numbers together the grand total that we have a check that I will be signing today and you will be hand carrying to the City Attorneys tomorrow with an escrow agreement that they will get to use this check as soon as they sign the documents that they need to sign with a grand total payment that we are going to be making here tomorrow is five hundred and ninety thousand four and eight one dollars and fifty cents. Then the only remaining items in our agreement is additional capacity purchase for each of the next three years of fifty thousand gallons and those will be made in each of the next three years. Is there any discussion or questions on the agreement? I would just like to take this opportunity to thank Leah and Bob especially Leah because I have been using Leah to get the legal stuff done quickly and thoroughly and I know that she has taken a lot of input from the rest of the Town Board and from Mike Shaw and so Leah and Bob have worked very hard on getting this here. I want to thank Mike Shaw for his efforts and patience and certainly the Town Board for their effort as well. Like we said before and I will not belabor it other than to say that not only does this resolve this litigation but it also I think improves the contract because it simplifies future quarter calculations and it should definitely make paying the bill a lot easier process for both the Town and the City. So, I think we actually made an improvement to the contract. (Vote taken) RESOLUTION ADJOURNING TOWN BOARD MEETING RESOLUTION NO. 316.2012 INTRODUCED BY: Mr. Tim Brewer WHO MOVED FOR ITS ADOPTION SECONDED BY: Mr. Anthony Metivier SPECIAL TOWN BOARD MEETING 10-23-2012 MTG #24 606 RESOLVED, that the Town Board of the Town of Queensbury here by adjourns its Town Board Meeting. Duly adopted this 23rd day of October 2012 by the following vote: AYES: Mr. Metivier, Mr. Strough, Mr. Brewer, Mr. Stec NOES: None ABSENT: Mr. Montesi8 Respectfully submitted, Miss Darleen M. Dougher Town Clerk-Queensbury