NO. 24
RES. 269 PAGE 1
DECEMBER 21, 2012
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SITE http://macedontown.net
A Special Meeting of the Town
Board of the Town of
Pledge of Allegiance
Upon Roll Call, the following members of the Board were present:
Councilperson……….David Maul
Councilperson……….David McEwen
Supervisor…………...William Hammond
Absent: Councilperson……….Paul Kenyon
Councilperson………Cassandra Pagano
Also Present: Attorney………………Anthony Villani
RESOLUTION NO. 269 (12) EXECUTIVE
SESSION
RESOLVED the Town Board enter Executive Session at 2:05 p.m. to discuss
Pending Litigation.
MOTION BY
ROLL CALL VOTE: KENYON ABSENT,
MAUL AYE, MCEWEN AYE,
PAGANO ABSENT,
Councilman Paul Kenyon entered the meeting at 2:15 p.m.
RESOLUTION NO. 270 (12) OPEN
SESSION
RESOLVED the Town Board return to Open Session at 3:17 p.m.
MOTION BY
ROLL CALL VOTE: KENYON AYE MAUL
AYE, MCEWEN AYE,
PAGANO ABSENT,
RESOLUTION NO. 271 (12)
WHEREAS, prior to 1973, the Village of Macedon had historically provided sewer service to the town of Macedon acting on behalf of its town sewer districts, and
WHEREAS, prior to 1973, the Village of Macedon wished to jointly construct with the Town of Macedon an upgrade and expansion to the then existing sewer plant then owned by the Village of Macedon, and
WHEREAS, in an effort to cooperate in such request, the Town attorney requested and received an opinion letter from its bond counsel, which was shared with the village attorney, which, in relevant part, stated that for the town to borrow and expend money on the plant, “the Village must agree to convey an undivided real property interest in the treatment facilities to the Town in consideration of which the Town would agree to finance the expansion of such facilities, (a copy of bond counsel’s letter dated September 15, 1972 is annexed in Exhibit A, and
WHEREAS, in furtherance of such purpose, the
1. “May the Village of Macedon convey a vested interest in their (sic) treatment plant and site so as to enter into an intermunicipal contract with the town?
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RES. 269 PAGE 2
DECEMBER 21, 2012
2. If the Village can divest itself of a portion of the ownership of the treatment plant site, is this subject to public hearing and mandatory referendum?” (a copy of the letter by the village attorney dated January 9, 1973 is annexed hereto as exhibit A), and
WHEREAS, by opinion dated January 26, 1973 the comptroller opined in Opinion no. 73-59 that such purpose could be accomplished pursuant to Article 5-G of the New York General Municipal Law “whereby the Town would expand the village sewerage treatment plant and the Village would grant to the town an interest in the sewerage treatment facilities (a copy of said opinion is annexed hereto in Exhibit A, and
WHEREAS, in furtherance thereof, the Town and Village of Macedon entered into a letter of intent dated March 14, 1973, (copy attached as exhibit B) which letter states the intent of the parties that a real property interest would be conveyed to the Town in consideration of its participation, and
WHEREAS, the parties finalized its plans to commence the upgrade and expansion of the plant and set forth their respective rights and obligations in a contract between the parties executed pursuant to 5-G of the General Municipal Law dated January 16, 1989 whereby the parties agreement included the following:
Section A(2) of the contract recites: That recognizing the anticipated investment by the Town in the Sewage Treatment Plant and to legally enable the Town to finance said expansion the Village agrees to execute to the Town documentation so as to recognize a vested interest in the Town.
Section A(3) of the contract provides in substance that the said vested interest to the Town be proportional to the number of units located in the town compared with total units subject to a cap of 50%.
Section A(4) of the Contract provides in substance that .25 million gallons per day was allocated to the village and .5 million gallons per day allocated to the Town.
Section B(1) of the Contract provides: “Village and Town jointly own treatment facility as Co-owners of the Sewage Treatment Plant”.
Section B(2) of the Contract provides that the village would operate the plant during the term of the contract.
A copy of said contract is attached hereto as Exhibit C, and
WHEREAS, pursuant to the contract the Village spent the sum of $342,000 and interest of $190,000 for a total of $532,476.00 upgrading the existing plant, the funds to repay such indebtedness being levied against town and village users of the plant through the sewer rate, and
WHEREAS, pursuant to the contract, the Town spent the sum of $433,000 with interest of $236,626 for a total of $669,626.00 expanding the existing plant, the funds to repay such indebtedness being levied against town district sewer users by means of an annual or quarterly levy, and
WHEREAS, pursuant to the contract, the Town spent the additional sum of $830,000 plus interest of $455,728 for a total of $1,285,728.00 expanding the existing plant, the funds to repay such indebtedness being levied ad valorem against the all real property in the town outside the village, whether or not such property was connected to the sewer system and,
NO. 24
RES. 269 PAGE 3
DECEMBER 21, 2012
WHEREAS, the aforesaid contract was to remain in effect
during the term of the bond issue incurred by the Town of
WHEREAS, the parties substantially complied with the terms and conditions of the contract without objection or notice of dispute from either party, and
WHEREAS, said bond issue was fully paid in December, 2012, and
WHEREAS, in anticipation of such contract expiration, the Town of Macedon instructed its attorney who wrote the village letters dated July 5, 2012 and August 10, 2012 advising of the impending expiration of the 1989 contract and the need to negotiate joint operation going forward ( copies of these letters are annexed hereto in Exhibit D), and
WHEREAS, the attorneys for the Village wrote a letter dated November 16, 2012 stating that the village would enter into an interim agreement to continue service while the Town and Village negotiated a long term agreement resolving any differences under the contract, (copy attached in Exhibit D), and
WHEREAS, the town attorney was directed to and did write the attorneys for the Village a letter dated November 20, 2012 advising that the Town was committed to resolving this matter amicably but believed that any concerns of the village could be addressed in a contract of resolution, and, in an effort to protect innocent residents from any dispute that the village might raise, requested that the existing contract that had served for 25 years be extended while issue identification and resolution attempts took place. (Copy of letter attached in Exhibit D), and
WHEREAS, the attorneys for the Village responded by letter dated December 4, 2012, in which, for the first time, the attorneys for the Village stated that the plant was “an asset of the village”, that participation consistent with the town’s vested interest would not be allowed, and that the Village would only negotiate a contract to provide sewer service to the town district residents after the expiration of the contract if the town would withdraw its claims of ownership give the Village a general release for said claims. A copy of this letter is annexed hereto in Exhibit D. and,
WHEREAS, this letter was presented and rejected by the Town Board at its next scheduled meeting on December 13, 2012 as the Town Board believed that it could not abandon its claims to that part of the $2,487,830 total dollars spent on the plant expansion, most of which came from town residents, for a one year interim service contract, and
WHEREAS, a series of e-mails, letters, demands for alternate dispute resolution and attempts to continue discussion was sent by the town attorney to the village attorneys, the matter came to culmination in e-mails dated December 18, 2012 and December 19, 2012 in which the village attorney stated that in the absence of continued payment by the town to the village, the village would discontinue providing waste treatment services after January 1, 2013. Said e-mails do not make clear whether the village threatens to deny access to the plant or simply not treat the waste. (Copies of the relevant part of these e-mails are in Exhibit D). and
WHEREAS, the attorney for the Town responded that the Town could not legally make any payments to anyone in the absence of a contract and that the Village’s condition precedent that any contract contain a withdrawal and release of the town’s claims set impossible conditions on for such contract demanded, (copies of these letter are in Exhibit D), and
WHEREAS, in an effort to protect the health safety and welfare of all residents of the town, the town was willing to agree to continued village operation of the plant and the
NO. 24
RES. 269 PAGE 4
DECEMBER 21, 2012
expenses associated therewith by extending the 1989 contract until this matter could be resolve either through negotiation or litigation, and
WHEREAS, such offer has been refused and the unilateral termination of such sewer service at the same time the village suggests it will deny access to the plant after January 1, 2013 threatens the health, safety and welfare of residents of the entire town and is in contravention of the town’s rights acquired in consideration of the amounts expended by the town and as recognized in the 1989 contract, which the village never disputed until December 4, 2012
BE IT RESOLVED, that the town attorneys are directed to prepare and file and the Town supervisor authorized to sign such legal pleadings as may be necessary and proper to obtain an Order and Judgment from any court of competent jurisdiction prohibiting and staying any actions by the village of Macedon involving either the denial of access of town district waste to the sewer plant or the failure to treat such waste prior to discharge into the waters of the state of New York.
MOTION BY
ROLL CALL VOTE: KENYON AYE, MAUL
AYE, MCEWEN AYE,
PAGANO ABSENT,
MOTION BY
_______________________
Respectfully submitted by
Barbara LaBrake