Watch Hill Water Improvement Area
GELLERT a CUTLER, P.c.
ATTORNEYS AND COUNSELORS AT LAW
75 WASHINGTON STREET
JOSEPH H. GELLERT
(1907-1989)
SHELDON Cun.ER
LEONARD KLEIN
ARTHUR L GELLERT
STEPHEN E. EHLERS
PAUL J. GOLDSTEIN"
JOHN A GEOGHEGAN
ALBERT P. ROBERTS
ULL!AN S. WEIGERT
STEPHEN E. DIAMOND"
RAINA E. MA!SSa +
DAVID R. WlSE++
EMANUEL F. SARIS
TERRY D. HORNER
POUGHKEEPSIE, NEW YORK 12601
(914) 454-3250
FAX: 914-454-4652
WESTCHESTER OFFICE
35 PURCHASE STREET
RYE, NEW YORK 10580
(914) 967-6200
April 13, 1993
FAX 914 967'6236
. ADMIlTED IN NY II FL
" . ADMITTED IN NY. FL II MA
. ^DMIlTED IN NY II ENGLAND
.. ADMIlTED IN NY II CT
LONG ISLAND OFFICE
2001 MARCUS AVENUE. SUITE W95
LAKE SUCCESS, NEW YORK 11042
(516) 355-0905
Hon. Constance o. Smith
Supervisor
Town of wappinger
PO Box 324
Wappingers Falls, NY 12590
Re: Brinckerhoff Water District and
Town of Wappinger
Our File No.: 5456.5026
Dear Connie:
Enclosed herewith please find revised copies of the Water Supply
Contract between Brinckerhoff Water District and the Watch Hill Water
Improvement Area with corrections as requested in Brian Morgan's
letter of April 8, 1993. The revised contract was approved at the
Board Meeting of April 12, 1993.
Please sign and forward and to Supervisor pagones for signature.
Very truly yours,
GELLERT & CUTLER, P.C.
ALBERT P. ROBERTS
APR/cmf
Enclosure
cc: Hon. Joan D. pagones,
Supervisor, Town of ~ishkill
Brian Morgan, Esq.~
Jay paggi
WATER SUPPLY CONTRACT
BETWEEN
BRINCKERHOFF WATER DISTRICT
AND
THE TOWN OF WAPPINGER
ON BEHALF OF THE
WATCH HILL WATER IMPROVEMENT AREA
Pursuant to Article 5-G of the General Municipal Law
THIS AGREEMENT, dated this /6 day of ~ ' 1993
between THE TOWN OF FISHKILL, a municipal corporation, with offices at
the Town Office Campus, Route 52, Fishkill, New York (hereinafter
"Fishkill" and THE BRINCKERHOFF WATER DISTRICT, a Town Improvement
District, with an office and principal place of business at the Town
Office Campus, Route 52, Fishkill, New York (the "District");
THE TOWN OF WAPPINGER, a municipal corporation with an office and
principal place of business in the Town of Wappinger, Town Hall, 20
Middlebush Road, wappingers Falls, New York ("Wappinger"); on beh~lf
of THE WATCH HILL WATER IMPROVEMENT AREA ("watch Hill")
WIT N E SSE T H:
WHEREAS, the District owns and operates water supply and related
facilities (the "facility") for the purpose of producing potable water
within the Town; and
WHEREAS, Wappinger has authorized the formation of Watch Hill;
and
WHEREAS, Watch Hill owns and operates a potable water
distribution system serving the residents of Watch Hill; and
GELLERT & CUTLER, P.C. . ATTORNEYS AT LAW . 75 WASHINGTON STREET . POUGHKEEPSIE, NEW YORK 12601
WHEREAS, residents within Watch Hill have been supplied potable
water by the District for a fee determined by the Town Board of the
Town; and
WHEREAS, the regulations promulgated by the New York State
Department of Environmental Conservation require a formal written
agreement between the District and Watch Hill for the supply of
potable water; and
WHEREAS, the District has agreed to sell potable water to
Wappinger for use within Watch Hill pursuant to the terms and
conditions hereinafter set forth; and
WHEREAS, the parties have further determined that their
respective best interests will be served by a coordinated water
distribution system to insure that the respective users will be served
at a reasonable price;
NOW, THEREFORE, in consideration of the mutual covenants and
conditions herein and other good and valuable consideration, Fishkill,
the District, Wappinger and Watch Hill agree as follows:
1. REPRESENTATION OF COMPLIANCE.
(a) Watch Hill. Watch Hill and Wappinger covenant and
agree that its water distribution system (the "Distribution System")
has been designed, constructed, repaired, operated and maintained
according to plans and specifications that comply with all applicable
federal, state, county and town laws, rules and the regulations of all
other municipal agencies having jurisdiction thereof.
(b) The District. The District and Fishkill covenant and
agree that the water distribution system owned, operated and
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GELLERT & CUTLER, P.C. . ATTORNEYS AT LAW . 75 WASHINGTON STREET . POUGHKEEPSIE, NEW YORK 12601
maintained by the District has been designed, constructed, repaired,
operated and maintained according to plans and specifications that
comply with all the applicable federal, state, county and Town laws,
rules and the regulations of law and order municipal agencies have in
jurisdiction thereof.
2. INTERCONNECTION. Watch Hill and the Distribution System
have previously been connected to the distribution system currently
owned and operated by the District. The point of the connection has
occurred at a place designated by the District. Wappinger represents
that all necessary permits and regulatory approvals from agencies
having jurisdiction over the Watch Hill and the Distribution System
have been obtained, are in full force and effect and have not been
violated.
3. MAINTENANCE. Wappinger shall operate, maintain, repair and
use the Distribution System within its boundaries in compliance with
applicable rules, laws, regulations, findings, rulings and official
notices of the federal, state, county and town agencies having
jurisdiction over the Distribution System, and all such costs arising
out of or relating to the operation of the Distribution System shall
be paid by Wappinger and/or Watch Hill.
4. WATER SUPPLY. The District shall supply Watch Hill with
potable water which shall comply with all applicable state and federal
water quality standards, rules and regulations.
5. WATER RENT. Wappinger and/or Watch Hill shall pay for the
cost of the water supplied to Watch Hill as follows:
(a) Treatment and Transportation. Wappinger and/or Watch
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GELLERT & CUTLER, P.C. . ATTORNEYS AT LAW . 75 WASHINGTON STREET . POUGHKEEPSIE, NEW YORK 12601
Hill shall pay to the district a flat rate of $.55 per 100 cubic feet
of water delivered as actually measured by the master meter presently
in place at or near the point of interconnection as set forth in
paragraph 2. This rate shall continue for a minimum period of one
year and shall continue yearly thereafter until the actual cost of
producing, treating and transporting the water exceeds the sum of $.55
per 100 cubic feet as determined by the Town of Fishkill Comptroller
in accordance with the procedure set forth in sub paragraph (b) below.
(b) Procedure. Documentation of the actual cost of the
production and delivery of water shall be delivered to Wappinger for
verification prior to October 1 of each calendar year hereafter. The
documentation of actual costs of production, transportation and
treatment shall include itemized meter readings from the District
meter.
The determination of the allocated pro rata share of
the production and delivery costs of water attributed to Wappinger
and/or Watch Hill shall be preceded by a draft determination from the
District which will be delivered to Wappinger on or about August 1 of
each year during the term of this contract. Wappinger will have the
right to respond to such proposal or to request further fact finding
by the District relative to the determination of such costs to be
allocated to Wappinger. The District and Fishkill shall be required
to give due consideration to all relevant factors submitted by
Wappinger to the District relative to such allocation of costs. The
District shall make a final determination of the allocation of such
costs by resolution of the Town Board of Fishkill, sitting as the
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GELLERT & CUTLER, P.C. . ATTORNEYS AT LAW . 75 WASHINGTON STREET . POUGHKEEPSIE, NEW YORK 12601
Brinckerhoff Water District Commissioners prior to October 1 of year
during the term of this contract.
(c) Contribution to Bond Reduction. Wappinger and/or Watch
Hill acknowledges that the District has undertaken two borrowings for
capital improvements made by the District as follows:
1. A portion of the Consolidated Bond Issue of 1991
in the amount of $389,000.00, the proceeds which were used to purchase
the District's water system; and
2. A bond anticipation note ("BAN"), the proceeds of
which were used to improve the District well field, pump station and
related appurtenances and any such serial bonds or other securities
that such BAN may be replaced with by the District.
Wappinger further acknowledges that the capital improvements
previously referenced benefitted Watch Hill and agrees that Watch Hill
residents should pay for a portion of those costs as part of its water
rent. Accordingly, Wappinger and Watch Hill agree that each Watch
Hill residential user shall pay a portion of the aforementioned
borrowings as follows:
3. A factor of twenty five percent (25%) of the
yearly costs paid by each Brinckerhoff Water District resident for the
reduction of the allocated portion of the Consolidated Bond Issue,
until said Bond is paid in full; and
4. One hundred percent (100%) of the amount each
Brinckerhoff Water District resident pays for the reduction of the BAN
or serial bonds, until the BAN or serial bonds are paid in full.
The parties further agree that solely for the purposes of
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GELLERT & CUTLER, P.C. . ATTORNEYS AT LAW . 75 WASHINGTON STREET . POUGHKEEPSIE, NEW YORK 12601
determining the appropriate share of the two borrowings noted above,
the residents of Watch Hill shall be allocated benefit units utilizing
the same benefit formula adopted by the District for its own residents
so as to achieve the percentage paYments previously noted. For the
purposes of this agreement, Watch Hill residential users shall be
ascribed 2.5 benefit unit to reduce the allocated portion of the
Consolidated Bond Issue and they shall be ascribed 10 benefit units to
reduce the allocated portion of the BAN.
(d) Additional Costs. Wappinger and Watch Hill agree to
pay a pro rata share of any future capital improvement costs allocated
by the District to the water flows to Watch Hill. Prior to allocating
any additional capital costs for improvements to be made in the
future, the parties agree that Fishkill and the District shall notify
Wappinger of any proposed capital costs or any other related matters
which Fishkill believes should be allocated in part to Watch Hill.
The determination of the allocated pro rata share to paid by Wappinger
and/or Watch Hill shall be provided to Wappinger, in writing, not less
than thirty (30) days prior to any determination by Fishkill and the
District to make the necessary expenditures. Wappinger shall have the
right to respond to such proposed expenditure and to request further
fact finding by Fishkill and the District relative to the
determination of such costs to be allocated to Wappinger. The
District shall be required to give due consideration to all relevant
factors submitted by Wappinger and Watch Hill to the District relative
to such cost allocations. The District shall make a final
determination of such costs and allocations by resolution of the Town
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GELLERT & CUTLER, P.C. . ATTORNEYS AT LAW . 75 WASHINGTON STREET . POUGHKEEPSIE, NEW YORK 12601
Board of the Town of Fishkill and shall notify Wappinger of its
determination.
(e) Federal and State Funds. Any funds received from the
State of New York or from the Federal Government applied to the
operation and maintenance costs wills be s~ared pro rata between the
District and Wappinger on the basis of the calculations noted in sub
paragraph (a) above. Any funds received from the State of New York or
the Federal Government to retire the borrowings set forth above in sub
paragraph (c) above shall be applied pro rata according the benefit
unit assignment noted therein.
6. TOWN BUDGETS. The Town of Wappinger and the Town of
Fishkill each shall prepare their respective budgets every fiscal year
as required by Town Law. The amounts to be paid by Wappinger to
Fishkill and/or the District for each budget year shall be included in
the appropriate budget, and shall be assessed and levied against all
properties in the Watch Hill Water Improvement Area. The payment of
the charges and fees from Wappinger to Fishkill and the District shall
be at such times and in such amounts as are established from time to
time by the District Commissioners consistent with this contract and
the Town Law.
7. ARBITRATION. Any claim, controversy, or dispute arising
out of or related to this Agreement shall be settled by arbitration in
accordance with the rules of the American Arbitration Association,
except as herein after set forth and, judgment upon the award rendered
by the arbitrators may be entered in Supreme Court of the State of New
York, County of Dutchess. In the event any claim, controversy, or
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GELLERT & CUTLER, P.C. . ATTORNEYS AT LAW . 75 WASHINGTON STREET . POUGHKEEPSIE, NEW YORK 12601
dispute arises out of or related to this agreement, then Fishkill and
Wappinger shall submit said claim, controversy or dispute to the
engineers to the respective municipalities; in the event the engineers
are unable to resolve the claim, controversy or dispute, then said
engineers shall appoint a third engineer and the three engineers shall
act as arbitrators otherwise in accordance with rules of the American
Arbitration Association.
Written notice for a Demand for Arbitration shall be filed with
the other parties to this agreement. The Demand for Arbitration shall
be made and filed no later than ninety (90) days, after the claim,
controversy or dispute has arisen. The party who prevails in the
arbitration shall be entitled to recover full attorney's fees, expert
witness fees and related costs and disbursements in addition to any
other remedy or relief granted by the Arbitrators.
8. TERMINATION. Wappinger shall have the right to cancel this
Agreement at any time during its term for any reason, either with or
without cause, such right of cancellation to be subject to the
following conditions precedent:
(a) Wappinger shall give written notice of its exercise of
the right of cancellation to the Town on or before the 1st of
September of any calendar year.
(b) Such notice shall be effective and the Agreement shall
be cancelled on the last day of the second calendar year following the
calendar year in which the notice of termination is given.
(c) Notice shall be in writing, addressed to the Supervisor
of the Town, and delivered to the Town Hall at the address set forth
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GELLERT & CUTLER, P.C. . ATTORNEYS AT LAW . 75 WASHINGTON STREET . POUGHKEEPSIE, NEW YORK 12601
..
herein.
9. ENTIRE AGREEMENT. This Agreement, including the Exhibits,
constitutes the entire agreement and understanding of the parties with
respect to the subject matter hereof and supersedes any and all prior
agreements or understandings between the parties, both written and
oral, with respect to such subject matters. This Agreement may be
amended only by written agreement signed by the parties hereto.
10. AUTHORIZATION. The execution and delivery of this Agreement
has been authorized by resolution of the Town Board of the Town of
Fishkill, as Commissioners of the District, and the Town Board of the
Town of Wappinger on the behalf of the Watch Hill Water Improvement
Area, respectively, true copies of which are attached hereto and made
a part hereof and respectively marked Exhibit "A" and Exhibit "B".
11. TERM. The term of this agreement shall commence as of
January 1, 1993 and shall be for a period of eighteen (18) years,
terminating on December 31, 2011.
BR
THE
CONSTANCE S I , Supervisor
~s-I!a
BY:
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GELLERT & CUTLER, P.C. . ATTORNEYS AT LAW . 75 WASHINGTON STREET . POUGHKEEPSIE, NEW YORK 12601