Tri-Municipal 2nd Amendment DRAFT 1995MAR-13-95 110N 17:32 p, pp
DRAFT
cOND AMENDMENT TO AGRZEMENT DAUD JtTl,Y 10� 1991
THIS AGRMMENT, made this day of March, 1995,
between the Town of Poughkeepsie and the Village of
Wappingers 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 11,
(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 Middlelbush Road,
Town of Wappi.nger, Dutchess County, New York (hereinafter
referred to as the "Town"),
W I T N T S S E T R
WHEREAS, the parties hereto have entered into an
Agreement dated July lo, 1991 to expand the Commission's
waste water treatment facility pursuant to Article 5G of the
General Municipal Law; and
w k AS, the parties hereto by Agreement dated
September 1, 1994 amended said July 10, 1991 Agreement to
permit and provide for the early entry and treatment of
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effluent from the Town's Oakwood Knolls sewage Treatment
Plant prior, to the completion date of the expansion called
for in the original July 10, 1991 Agreement; and
Wi 2EAS, said Agreement dated September 1, 1994
Provided for a financing plan to enable the Town to utilize
the New York state Environmental Facilities Corporation Long
Term Financing Agreement and said Agreement set forth and
Provided for specific dates by when the Long Term Financing
Agreement was to be in place to permit the Commission to
enter into the contracts for expansion; and
AREAS, following the advertisement for public bids
the contract prices were determined to be in excess of the
Long Term Financing Agreement amounts; and
WREREAS, the Commission has awarded Contract Nos. 3 and
4 for the commencement of construction of the Plant expansion
Pursuant to the July 10, 1991 Agreement and has obtained from
the other successful contractors commitments to maintain
their bids on Contract Nos. 1 and 2 through April 1, 1995;
and
WfM-RF.AS, the Town has received approval from the
Department of Audit and Control for an additional $2.6M of
bonding and has submitted an application to Environmental
Facilities Corporation for the additional amount; and
. WEREAS, the Enviror4zental Facilities Corporation
contract documents will be signed on or about April 24, 1995
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with the final closing to take place on Tune 27, 1995; and
WHEREAS, there currently is available to the Commission
$4.7M to -fund Contract Nos. 1 and 2 and the Town has
committed and reaffirms its obligations to provide the
balance of funding for said contract Nos. 1 and 2.
NOW, THREFoRE, it is agreed as follows;
1. The parties hereto understand and agree that all
the terms of the Agreement of July lo, 1991, and the
Amendment to said Agreement dated September 1, 1994 other
than those terms specifically amended pursuant to this
Agreement still are in full force and effect and that all
terms, including method of payment and mode of payment, are
hereby reaffirmed and will be adhered to by the parties.
11. Pursuant to the terms of this Amendment, Paragraph
X of the September 1, 1994 Agreement hereby is amended as
follows:
2. The Town hereby warrants that it has in place and
available to the Commission Long Term, Financing Agreements
with the Environmental, Facilities Corporation in the amount
Of $g-5M (Long -Term PFLA SRF Project No. 5306-02) available
to the Commission and sufficient to pay in full the total
cost of all contracts awarded to date, namely, Contract
Nos. 3 and 4 which are for the construction which is the
subject of the July 10, 1991 and September 1, 1994
Agreements.
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2. The Town also warrants that the balance of funds
:A.
available under the Long Term Financing Agreement. (PFLA SRF
Project No. 5306-02) currently available to the Commission
for the payment of Contract Nos. 1 and 2 is $4.7M.
3. The Town hereby warrants that it has, by"Resolution
dated February 27, 1995, a copy of which is annexed hereto as
Exhibit "A", adopted a bonding resolution to increase the
amount of the Long Term Financing Agreement by $2.6M for a
total of $11.1M to be available to the Commission.
4. The Town hereby further warrants that the new total
Long Term Financing Agreement will contain the same language
incorporated into the current Long Term. Financing Agreement
(PFLA. SRF Project No. 5306-02) which will permit the
Commission to draw down directly on said funds as outlined
and set forth at length in Exhibit "A" to the September 1,
1994 Agreement.
5. The Town warrants that it has submitted to the
Environmental Facilities Corporation an application for the
subsidized interest rate loans as evidenced by the
application annexed hereby as Exhibit "B".
6. The Town further warrants that it has received
approval, from Environmental Facilities Corporation as
evidenced by the completed application notice annexed hereto
as Exhibit "C", and that contract documents are to be signed
on or about April 24, 1995 and the final .loan closing to be
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held on June 27, 1995.
7. The Commission, based upon these representations
and warrantees of the Town hereby agree to award Contracts
Nos. I and 2, Which contract price awards have been extended
by the contractors through April 1, 1995.
S. Should said second Long Terra Financing Agreement
(with said terms) not be operative on or before July 1, 1995
or should said Long Term Agreement not contain terms which
allow direct draw down by the Commission nor be available to
the commission on said date; then the parties agree that such
circumstances automatically will trigger Paragraph IX b(l) of
the July 10, 1991 Agreement. The Town immediatgly will then
sell the appropriate bond anticipation notes or bonds to
cover the balance of the costs required for the completion of
the project and deposit same pursuant to said Paragraph IX
D(1)- It distinctly is understood that this provision of the
contract is critical, and the failure of the Town to
immedi.atel.y deposit the appropriate funds for completion of
the project with the Commission will be a breach of this
Agreement and the Agreements dated September 1, 1994 and July
10, 1991 unless the Town immediately shall, 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
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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.
9. Notwithstanding anything herein contained to the
contrary, it distinctly is understood that this Agreement
will not be binding on the Commission, the Town of
Poughkeepsie and the Village of Wappinger Falls until such
time as both the Village of Wappinger Falls and the Town of
Poughkeepsie pass a Resolution to the effect approving this
Agreement.
TRI-MUNICIPAL SEWER COMMISSION
BY:
JAMES B. RAIN, Chairman
TOWN OF WAPPINGER
BY:
CONSTANCE d. SMITH, supervisor
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MAR-13-95 MON 17:33 P.SB
STATE of NEW YORK )
COUNTY OF DUTCHESS
on this day of March, 1995, before me personally
came JAMES B. BAIN, to me 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
STATE OF NEW YORK )
COUNTY OF DUTCHESS
on this day of March, 1.995, before me personally
came CONSTANCE O, 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 _PUBLI C
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