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Tri-Municipal Amendment 1994%Q �3d1y� UARTARARO h gUARTARARO ATTORNEYS AT LAW E CANNON STREET 'OUGRKUP5IE, NEW YORK AMENDMENT TO AGREEMENT DATED JULY 10, 1991 f s r 1�0 7-,m i e r THIS AGREEMENT, made this 2aqr& day of , 1994, between the Town of Poughkeepsie and the Village of Wappinger Falls TRI--MUNICIPAL SEWER COMMISSION, a Commission formed pursuant to Article 5G of the General Municipal Law of the State of New York, which Commission has its office and principal place of business located on Sheafe Road, Town of Poughkeepsie, Dutchess County, New York, (hereinafter referred to as the "Commission"), and THE TOWN OF WAPPINGER, acting for itself and for and on behalf of the WAPPINGER SEWER TRANSMISSION/TREATMENT IMPROVEMENT Phases I and II, (hereinafter referred to as the WST/TI), a municipal corporation of the State of New York, with an office and principal place of business located at 20 Middlebush Road, Town of Wappinger, Dutchess County, New York (hereinafter referred to as the "Town"), W I T N E S S E T H: WHEREAS, the parties hereto have entered into an Agreement to expand the Commission's waste water treatment facility pursuant to Article 5G of the General Municipal Law to treat one million gallons per day of additional sewage generated from WST/TI. WHEREAS, said Agreement for expansion of the Commission facility between said parties is dated July 10, 1991; and WHEREAS, the Town wishes to have the effluent from its Oakwood Knolls Sewage Treatment Plant treated by the Tri-Municipal Sewage Treatment Plant prior to the completion date of the expansion called for in said Agreement dated July 10, 1991; and WHEREAS, said early entry will be solely for that sewage being presently treated by said Oakwood Knolls Sewage Treatment Plant in said Town; and WHEREAS, such early treatment of said sewage would require an amendment of the Agreement dated July 10, 1991; and WHEREAS, the parties wish to set forth herein the terms and conditions under which said early entry by the Town of the sewage from its Oakwood Knolls Sewage Treatment Plant shall be accomplished; and WHEREAS, the terms of this agreement are conditioned upon the Agreement dated July 10, 1991; and WHEREAS, this Agreement also amends the payment terms during construction in said July 10, 1991 Agreement. NOW, THEREFORE, be it agreed as follows: STATUS OF PARTIES I. THE COMMISSION. The Town of Poughkeepsie and the Village of Wappingers Falls currently are the joint owners (through the Commission) of a sewage,treatment facility %RTARARO A QUARTANARO 2 0-TOFNEYS AT tAW 9 CANNON STREET U011KEEPSIE, NEW YORK located adjacent to the Hudson River on 11.4± acres of land immediately north of Bowdoin Park commonly known as the Tri-Municipal Wastewater Facility. The facility presently has the capabilities of treating 1.4 million' gallons of sewage per day, all of which capacity is allocated to the Commission members. The facility treats sewage emanating from the Village of Wappingers Falls and the Town of Poughkeepsie pursuant to a NYSDEC Discharge Permit. The Commission is presently in the process of expanding its facility to treat an additional one million gallons of sewerage from the Town of Wappinger pursuant to an Agreement dated July 10, 1991. This additional one million gallons of capacity is allocated to a sewer improvement known as Wappinger Sewer Transmission Treatment Improvement Phases I and II (WST/TI). II. THE TOWN. The Town of Wappinger is presently constructing sewer trunk lines and other appurtenances with the anticipation of discharging the sewage generated within the boundaries of WST/TI into the treatment plant owned by the Commission in accordance with the terms of said Agreement dated July 10, 1991. The Town of Wappinger has requested that the effluent from its Oakwood Knolls Sewage Treatment Plant (which effluent is part of the total discharge of WST/T1) be discharged into the existing sewage treatment plant owned by - 3 . ATARARO A QUARTARARO ATTORNGTs AT LAW 9 CANNON STREET .1G}IKEEPSIE, NEW YORK the Commission as soon as possible and prior to the completion of the planned expansion of said sewage treatment facility. III. PROJECT. The Town by executing this Agreement intends to discharge an average daily flow of 258,000 gallons of sewage presently being treated by its Oakwood Knolls Sewage Treatment Plant into the existing sewage treatment plant owned by the Commission prior to the completion of expansion of said plant pursuant to the Agreement dated July 10, 1991. IV. CONSULTANTS. The Commission shall use its professional consultants to properly implement all environmental studies, design changes, plant amendment changes, and effluent treatment changes to -accomplish the early entry requested by the Town. The Town will pay for all costs associated with early entry pursuant to existing financing agreements. Said early entry costs will include additional costs resulting from early entry as well as for installation and removal of a temporary pump station flow controller. The Commission and its consultants will exercise its best efforts to accomplish the early entry. V. POINT OF ENTRY. The Town shall deliver the flow from the Oakwood Knolls Sewage Treatment Plant to a point in the vicinity of the Village of Wappingers Falls pump station. The Commission in turn will transmit the sewage delivered by 4 %RTARARo a 4UARTAOARO ATTORNEYS AT LAW 9 CANNON STREET 'JGIIKEEPSIE, NEW YORK the Town to the site of its existing sewage treatment facility. The point of entry is shown on the construction contract drawings, which drawings are dated June 24, 1994 on Sheets PS-1V through PS-25V (Contract 3).and Sheets PS-1V, PS-2V and El-E2 (Contract 4). Said construction drawings are hereby incorporated in this Agreement as though fully set forth herein. Construction of new facilities from said point of entry to the Village of Wappingers Falls will be performed by the Commission in accordance with the Agreement dated July 10, 1991. As per said Agreement all expanded facilities from point of entry shall become and remain the property of either the Village of Wappingers Falls (if located in the Village) or of the Commission members (if located at the treatment plant site). Tt is understood that early -entry discharges cannot take place until such connecting facilities are completed and approved by all necessary entities having control thereof. VI. AMENDMENT TO WORK SE UENCE FOR PLANT EXPANSION. The parties understand and agree that the presently existing UV system or final treatment phase of the existing plant is to be expanded to accommodate a total of 2.4M gallons per day of sewage pursuant to the Agreement between the parties dated. July 10, 1991. The parties understand and agree that the phases of construction of the expansion of the facilities pursuant to the July 10, 1991 Agreement shall be altered so 5 ARTARARO U QUARTARARO ATTORNEYS AT LAW P CANNON STREET JGh KziPsIE, NEW YORK that one of the first items of work shall be the installation of a new UV system or of a chlorination system to accommodate 2.4M gallons per day of sewage. The Town will pay for any additional costs resulting from changing the sequence of the work by the early installation of any component of the construction contract. The parties agree, however, that the actual cost of installing a new UV system or chlorination system to accommodate 2.4M gallons per day of flow shall be paid for on a proportional basis; that is 1/2.4 of the cost shall be paid for by the 'town and 1.4/2.4 of the cost shall be paid for by the Commission. The parties agree that the term "actual cost" as used herein shall be limited to only those costs incurred for the construction of said final, treatment facility which will be separately bid in the plant expansion contract as a lump sum item. The parties understand and agree that the early entry will not occur until such time as all modifications necessary to implement early entry shall have been completed and approved by all regulatory agencies. VII. REPRESENTATIONS WITH RESPECT TO OAKWOOD'S EFFLUENT. 1. The Town represents that the plans, specifications and as -built plans for the transmission facilities from the Oakwood Knolls Sewage Treatment Plant to the point of entry have been constructed and comply with all requirements imposed by the New York State DEC and sound i7ARARO A 011ARTARAHO 6 ATTORNEYS AT LAW 9 CANNON STREET GRKSE°51 4. NEW YORK engineering practices. The Town engineer will certify to the Commission engineers and the Commission that such is the case. The parties understand that this Agreement is contingent upon the Town repairing and/or replacing any infiltration or inflow problems or other deficiencies that may exist in its new transmission facilities. It is distinctly understood that any inflow or infiltration will be repaired or cured prior to any flow being allowed into the Tri-Municipal. facilities. (a) The Town of Wappinger engineer will also certify to the Commission that the pitch of the transmission lines carrying the Oakwood Knolls Sewage Treatment Plant's flow to the Tri-Municipal facility is sufficient to avoid any possible septage problem. Any problems that do occur will be immediately rectified by the Town. (b) The decision of the Tri--Municipal consultants and engineers shall be final and binding with respect to this Paragraph V11. 2. The Town warrants to the Commission that all present users of the Oakwood Knolls Sewage Treatment Plant comply with the sewer use ordinance which presently exists in the Town of Wappinger and which ordinance is substantially the same as the ordinance presently in effect in the Village of Wappingers Falls and the Town of Poughkeepsie. The Town further warrants that the quality of effluent from each user UANTARARO 9 QUARTARARO 7 •� I/r G� ATTORNEYS AT LAW 9 CANNON STREET /1 'OLGHKEtME, NEW YORK and from the Oakwood Knolls Sewer Treatment Plant falls within the parameters of said ordinances, and that any mandated additional requirements in the future will also be complied with. 3. The Town hereby warrants that all users of said Oakwood Knolls Sewage Treatment Plant are residential except for the following commercial user: IBM Facility Myers Corners Road The Town further warrants and certifies that any pre-treatment facilities required for said commercial users or any other users of said Oakwood Knolls Sewer Treatment Plant will be in place prior to hookup to the Tri-Municipal facility. 4. The Town shall pay all costs incurred by the Commission, including fines or penalties incurred as a result of discharges into the Commission's Wastewater Treatment Facility at the Town's Point of Entry which violates its then in effect sewer use ordinance or then existing laws, rules and regulations. Such costs shall be paid by the Town within sixty (60) days of the incurment of the expense by the Commission, and upon presentation of a bill for same, properly documented. With respect to dumping of contravening. wastes or wastewater, the cost thereof shall be paid in accordance with the common policy adopted by the Commission applicable to all users uniformly in existence at the time of the dumping, providing all of the manholes owned by the Town r ,RTARARO 9 QUARTARARO ATTORNEYS AT LAW 9 CANNON STR9ET JGIIKBERSIE. NEW YORY that service sewer lines which contain the flow to the Tri-Municipal facility are sealed. Failure to seal said manholes will be just cause for the WST/TI to be responsible for the entire cost incurred by the dumping of any contravening waste therein. VIII. A. TESTING SEWAGE. All testing and/or sampling of the Town's sewage for compliance with the sewer use ordinances or other regulations shall be made at the Point of Entry above mentioned. The testing shall be made and certified by the Commission's engineers and their decision shall be binding on the parties to the extent of the due and timely payment of any costs or charges occasioned for such noncompliance. B. ENFORCEMENT. The Town shall enforce its sewer use ordinances and pre-treatment program. Whenever the Town fails to properly enforce its sewer use ordinance or existing laws, rules and regulations, the Commission shall have the right to enforce same by proceedings at law, or in equity, against any individual lot owner, person or persons violating or attempting to violate said sewer use ordinance or pre-treatment program. The Commission shall have the further right to compel the Town to enforce its sewer use ordinance or existing laws, rules or regulations by proceedings at law or in equity so as to enjoin and compel the Town to enforce said sewer use ordinance or pre-treatment program. Any costs g - 1RTARARO A 90ARTARARO ATTORNEYS AT LAW 9 CANNON 57RECT �GHKEEPSIL, NCW PORK incurred by the Commission pursuant to this paragraph shall be reimbursed to the Commission by the Town and are payable within thirty (30) days. C. CHALLENGE TO FINDINGS. The Town shall have the right to contest the findings of the Commission's engineers, or the methodology used by them in determining compliance with the sewer use ordinance or existing laws, rules or regulations by appropriate application to the Supreme Court, Dutchess County, New York, provided, however, that pending the determination by the Supreme Court, any payments due by the Town will be due and timely made and any adjustment in said payments will be made by agreement or pursuant to the resolution of the dispute by the Court. IX. PAYMENT OF COSTS OF EARLY ENTRY. The Town shall pay for all costs associated with the facilities to be provided, including all preliminary and final design costs and all environmental costs in accordance with the terms of the July 10, 1991 Agreement. a. Construction Costs - Connection Facilities. Upon completion of and payment of final design and all necessary costs the Commission will let the contract for the construction of the expansion of the plant which will include the early entry work and facilities. b. The contract for expansion of the treatment plant will contain the cost for construction of the installation 97ARARO d Q6ARTARARO ATTORNEYS AT LAW CANNON STREET )GNKEEpSi E. NEW YORK and removal of the temporary pump station flow controller. It is understood by the WST/TI that the additional cost of early entry, which includes the temporary pump station flow controller as well as early completion of a new final treatment phase (chlorination or UV system) plus any additional construction costs resulting from early entry will be included in the cost for construction of the facility and that the cost of the facility may increase. As per Paragraph IX C of the Agreement dated July 10, 1991, the Town retains the right to reject all bids in its sole discretion as outlined in said Paragraph IX C. X. AMOUNT OF FLOW. The Town hereby warrants to the Commission that the average daily flow from said Oakwood Knolls Sewage Treatment Plant will not exceed 258,000 gallons. The parties agree that the term "average daily flow" means the average daily flow calculated over a period of one month. The Town further warrants that there will be no other hookups than those presently existing, to the present existing Oakwood Knolls Sewage Treatment Plant, nor will there be any new or additional hookups to the trunk line which connects said facility to the Point of Entry. The Town understands that this early connection to the existing sewage - treatment facility will bring the discharge into the Plant to peak design capacity and that discharging more than its allocated volume herein can cause severe injury and damages ,RTARRRO 6 Q6ARTARARO T 1 ATTORNEYS AT LAW 9 CANNON STREET +CHKOfME, NEW YORK to the Tri-Municipal Sewer Commission. Should the flow exceed the contracted amount the Town agrees as follows: (a) Should the average daily flow from the Town exceed 258,000 gallons for a period of three consecutive months or for four out of five months, any additional costs incurred by the Commission in ways of cost of operation and maintenance or fines and penalties shall be borne totally by the Town. Measurements thereof shall be made by the engineers for the Commission and shall be binding on the Town. Payment therefor shall be made within six (6) months of the incurrment of the said additional costs. (b) Surcharge. Any excess above the average daily flow of 258,000 gallons by the Town for a period of three consecutive months or four out of five months will be subject to a surcharge, which surcharge will be imposed immediately thereafter and payable when the next quarterly payment is due. Surcharge will be in the amount of 2.5 times the cost of operation and maintenance for the volume of sewage which exceeds the average daily flow of 258,000 gallons during said periods of time hereinafter referred to and thereafter if said excess continues. (c) All payments including surcharges herein shall be made with the understanding that the Town can at a later time seek appropriate redress as called for in the July 10, 1991 Agreement. QUARTARARO B OUARTARARO ATTORNEYS AT LAW 8 CANNON STRUT POUGIiKRRP5IE. NEW YORK XI. METHOD OF PAYMENT FOR OPERATION AND MAINTENANCE COSTS FOR EARLY HOOKUP. Payment for operation and maintenance shall be in accordance with Paragraph XV of the July 10, 1991 Agreement. It is understood that the .initial payment for operation and maintenance by the Town shall be made in advance based on estimated flow so that the Commission might have in hand funds to defray the initial cost of treating the sewage from the Oakwood Knolls Sewage Treatment Plant. This amount shall be paid prior to admitting the Town's flow from the Oakwood Knolls Sewage Treatment Plant to the treatment facilities. (a) Pursuant to Paragraph XI of the Agreement dated July 10, 1991 the Commission may, upon the introduction of the Town's sewage from the Oakwood Knolls Sewage Treatment Plant, remove from the Costs of Existing Facilities Account 25.8% of the then existing balance as called for in said Paragraph XI. X11. FINANCING. The WST/TI hereby warrants that prior to the letting of the bids for the construction herein, its' bonding attorney will certify to the Commission that 1000 of the estimated costs of the entire project, including the early entry costs, is available by reason of an existing bond resolution and which bond resolution authorizes the issuance of bonds to pay for the balance of the costs to complete the project. q UAATARARO d QUARTARARO ATTORNEYS AT LAW 9 CANNON STREET POMIKEEPSlR, NEW YORK 13 - ��� lei, rn/ � 0 � `�.A (a) The Town hereby warrants that a Long Term Financing Agreement will be entered into with the New York State EFC for the sum of $8.5M, and bonds totalling said amount will be sold and available to pay for the costs of completing construction. It is further specifically understood that said long term financing agreement will contain language which will ensure that Tri--Municipal will be able to draw down directly on said funds financed. Attached hereto and marked Exhibit "A" is an agreement between the Town and Tri--Municipal which more fully explains the method of payment for costs during construction and which Exhibit "A" is made a part hereof. (b) The Town further hereby warrants that the Long Term Financing Agreement (Long Term - PFLA SRF Project No. 5306-02) will be in place and fully executed prior to the awarding of the bids hereunder. The Town further warrants that said Long Term Financing Agreement will contain language which will ensure that Tri-Municipal will be able to draw down directly on said funds financed as outlined in Exhibit "A". (c) Should said Long Term Agreement (with said terms) not be operative on or before December 31, 1994 or should said long term EFC funding pursuant to said Agreement not be available to Tri-Municipal on said date; then the parties agree that such circumstance will automatically make q UARTARARO @ pRARTARARO ATTORNEYS AT LAW 8 CANNON STREET POUGHKEEPSIE. NEW YORK Paragraph IX D(1) of the July 10, 1991 Agreement operative. The Town will immediately then sell the appropriate bond anticipation'notes or bonds to cover the balance of the costs required for completion of the project and deposit same pursuant to said Paragraph IX D(1). It is distinctly understood that this provision of the contract is critical and that the failure of the Town to immediately deposit the appropriate funds for completion of the project with the Commission will be a breach of this Agreement and the Agreement dated July 10, 1991 unless the Town shall immediately deposit said funds to the account of the Commission pursuant to Paragraph IX D(1) of the July 10, 1991 Agreement. No further construction work or costs will be incurred by the Commission until such time as said funds are deposited. The Town will be liable for• any damages resulting to third parties or the Commission as a result of the Town's failure to immediately deposit said funds with the Commission. d. Attached hereto and made a part hereof (Exhibit "B") is a budget which reflects the amount of the long term borrowing to be $8.5M. Should the budget show that additional funds are necessary, the Town will deposit said additional funds with the Commission prior to the letting of the bids as per Paragraph IX D(1) of the original Agreement dated July 10, 1991. M 15 _ 4NARTARARO A QOARTARARO ATTORNEYS AT LAW 0 CANNON STREET POUGq KEEPSIE, NEW YORK e. The parties agree and understand that there is in place and is attached hereto Exhibit "A" which is a copy of an Agreement between the parties which describes the method of payment for costs during construction. The Commission will not award any bids for the construction of the facilities and the completion of same until such time as this Agreement and Exhibit "A" have been executed by the parties, and the Long Term Financing Agreement as described above is in place and has been properly executed. Exhibit "A" is an interim method of payment for costs during construction until such time as the long term financing Agreement is in place and is contingent upon this Agreement as well. The parties understand that the Long Term Financing Agreement called for in Exhibit "A1l must contain language which allows Tri-Municipal to voucher directly for all costs during construction and that the Long Term Financing Agreement will be in place and operative as outlined in Exhibit "An prior to the award of any bids hereunder. FAILURE OF THE TOWN TO HAVE THE FUNDING AVAILABLE ON ITS LONG TERM FINANCING AGREEMENT OR ARRANGEMENT WITH THE STATE OF NEW YORK (EFC) TO THIS COMMISSION AS OUTLINED IN EXHIBIT "A" BY DECEMBER 31, 1994 WILL CAUSE PARAGRAPH XII(c) HEREIN ABOVE TO TAKE EFFECT. XIII. JUL'Y 10 1991 AGREEMENT REAFFIRMED. The parties understand and agree that all of the other terms of the QLARTARARO A QUARTARARO ATTORNEYS AT LAW 0 CANNON STREET POUONKEEPSIE, NEW YORK CUANIARAR0 & QUARTARARO ATTORNEYS AT LAW 9 CANNON STREET POUGKKEEPSIE, NEW YORK mode of payment, are hereby reaffirmed and will be adhered to by the parties. XIV. Notwithstanding anything herein contained to the contrary, it is distinctly understood that this Agreement and Exhibit "A" will not be binding on the Commission, the Town of Poughkeepsie and the Village of Wappingers Falls until such time as both the Village of Wappingers Falls and the Town of Poughkeepsie have passed a resolution to that effect approving this entire Agreement. TRI-MUNICIPAL SEWER COMMISSION BY : A S BAIN, Chairman TOWN OF WAPPINGER BY: CONSTANCE 0' SMITIT, Supervisor C(- STATE OF NEW YORK ) COUNTY OF DUTCHESS ) ss.: On this day of , 1994, before me personally came JAMES BAIN, to itfe known and known to me to be the same person who subscribed the foregoing instrument, and that he signed the same as Chairman of the Tri-Municipal Sewer Commission, and that he executed the above agreement pursuant to the resolution duly adopted by the Commission, and he duly acknowledged to me that he executed the same. NOTARY PUBLIC • • W COUNTY OF DUTCHESS ss.: On this day of , 1994, before me personally came CONSTANCE 0. SMITH, to me known and known to me to be the same person who subscribed the foregoing instrument, and that she signed the same as Supervisor of the Town of Wappinger, and that she executed the above agreement pursuant to the resolution duly adopted by the Town of Wappinger, and she duly acknowledged to me that she executed the same. NOTARY PUBLIC ALBI:RT P. ROBERTS NOTARY PU60C, State of New Yarn Qualified in Cutchess aunty c�€xsi fission Cxpirss Feb. 28,19M7 q UARTARARO R QUARTARARO ATTORNEYS AT LAW 9 CANNON STREET POUGHKEEPSIE• NEW YORK