2011-1132011-113
Resolution Authorizing Waste Water Transmission Contract between the Village of
Wappingers Falls, the Town of Wappinger and the United Wappinger Sewer District
At a regular meeting of the Town Board of the Town of Wappinger, Dutchess County,
New York, held at Town Hall, 20 Middlebush Road, Wappingers Falls, New York, on March 14,
2011.
The meeting was called to order by Christopher Colsey, Supervisor, and upon roll being
called, the following were present:
PRESENT: Supervisor - Christopher J. Colsey
Councilmembers - William H. Beale (Arrived at 7:47 PM)
Vincent F. Bettina
Ismay Czarniecki
Joseph P. Paoloni (Arrived at 7:37 PM)
ABSENT:
The following Resolution was introduced by Councilman Beale and seconded by
Councilwoman Czarniecki.
WHEREAS, the Tri -Municipal Sewer Treatment Plant is owned collectively by the
Village of Wappingers Falls and the Town of Poughkeepsie and is managed by the Tri -
Municipal Sewer Commission; and
WHEREAS, the Town of Wappinger previously caused the formation of the Wappinger
Sewer Transmission/Treatment Improvement Area, Phase 1 and 2 (hereinafter "WST/TIA I &
II") for the purpose of treating waste water at the Tri -Municipal Sewer Plant; and
WHEREAS, WST/TIA I & II constructed a Sewer Transmission Line (hereinafter the
"Sewer Main") within the Town of Wappinger for the purposes of collecting waste water within
the jurisdictional boundaries of WST/TIA I & II and transmitting the waste water to the Tri -
Municipal Sewer Plant pursuant to a contract previously entered into between the Town of
Wappinger and the Tri -Municipal Sewer Commission (hereinafter the "Treatment Contract");
and
WHEREAS, the Town also previously caused the formation of the Wappinger Sewer
Transmission/Treatment Improvement Area Phase 3A (hereinafter "WST/TIA 3A") which
provided for an expansion of sewer service into additional jurisdictionally defined areas with the
Town, and collecting sewage therefrom and transmitting same to the Tri -Municipal Sewer
Treatment Plant for treatment in accordance with the Treatment Contract; and
WHEREAS, by Order dated December 13, 2010, the Town of Wappinger caused the
formation of the United Wappinger Sewer District (hereinafter "UWSD") which consisted of all
of the lateral sewer collection areas within WST/TIA Phases 1, 2 and 3A, including tenants
thereof for the purposes of funding the Town of Wappinger's share of capital improvements to
be made to the Tri -Municipal Sewer Treatment Plant in accordance with the Treatment Contract;
and
WHEREAS, the Village of Wappingers Falls is located partially within the Town of
Wappinger and partially within the Town of Poughkeepsie; and
WHEREAS, there are several parcels located within the Town portion of the Village of
Wappingers Falls and several parcels located within the Town in close proximity to the Village
that would benefit by utilizing the other municipality's waste water transmission facilities to
transport waste water to the Tri -Municipal Sewer Plant; and
WHEREAS, pursuant to the Treatment Contract, the Town, on behalf of UWSD
(formerly WST/TIA 1, 2 & 3A, including tenants thereof) is authorized to treat a maximum of
1,375,000 gallons per day of waste water at the Tri -Municipal Sewer Plant; and
WHEREAS, all of the Village sewage is treated at the Tri -Municipal Sewer Plant; and
WHEREAS, the Village, as a principal owner of the Tri -Municipal Sewer Plant, has
present treatment capacity of 1,000,000 gallons per day of waste water at the Tri -Municipal
Sewer Plant; and
WHEREAS, because of design considerations, two parcels of property located within the
jurisdictional boundaries of the Village of Wappingers Falls were connected to the Sewer Main,
which parcels are specifically identified as follows:
Parcel Owner Tax Grid Number
Hollowbrook of Dutchess, LLC 135601-6158-19-688002
Hollowbrook Associates, LLC 135601-6157-07-709968; and
WHEREAS, another parcel located within the Village of Wappingers Falls and owned
by TGS Associates, identified as tax grid number 6158-20-779013 (hereinafter designated as the
"Riverbend II Parcel"), is presently the subject of a site plan application pending before the
Village of Wappingers Falls Planning Board for use as a residential apartment complex; and
WHEREAS, by Resolution dated May 26, 2009 (Resolution No. 2009-196), the Town
has conceptually agreed to accept the waste water generated from the Riverbend II Parcel located
within the jurisdictional boundaries of the Village of Wappingers Falls; and
WHEREAS, the Village has agreed that the sewage from the Hollowbrook Parcels and
the Riverbend II Parcel will be charged against the Village's authorized treatment capacity at the
Tri -Municipal Sewer Plant and will not be charged against the Town's authorized treatment
capacity of 1,375,000 gallons per day; and
WHEREAS, subject to compliance with the terms and conditions set forth in this
agreement, the Town hereby confirms and agrees to transport the waste water generated from the
following three parcels located within the Village via the Sewer Main (hereinafter the "Village
Authorized Parcels"):
Current Owner Tax Grid Number
Hollowbrook of Dutchess, LLC 135601-6158-19-688002
Hollowbrook Associates, LLC 135601-6157-07-709968
TGS Associates (Riverbend II Parcel) 135601-6158-20-779013
(hereinafter the "Village Authorized Parcels"); and
WHEREAS, the Town has determined it has sufficient waste water transmission
capacity sufficient to allow it to transmit sewage from the Village Authorized Parcels (above
identified) to the Tri -Municipal Sewer Plant; and
WHEREAS, the Town and Village have further determined that their respective best
interests will be served by entering into a Waste Water Transmission Contract which will
provide for coordinated sanitary waste water collection services utilizing the Sewer Main to
insure that the aforementioned Village parcels will be provided waste water transmission
services in a manner that is the most efficient and practical way for transmitting sewage to the
Tri -Municipal Sewer Plant; and
WHEREAS, various parcels located within the jurisdictional boundaries of the Town
which were included in the original formation of WST/TIA have been connected to the Tri -
Municipal Sewer Plant by connection to the Village's sewer facilities, and are hereinafter
referred to as the "Town Authorized Parcels", which parcels with their respective tax grid
numbers are identified on Schedule "I", Category "A" or Category "B"; and
WHEREAS, the parcels identified in Schedule "I", Category "A" are those parcels
within the Town which were included in both the jurisdictional boundary of the original
WST/TIA (pipe area) and WST/TIA Phase 3A (sewer lateral area) but pay Operation and
Maintenance charges (O&M) to the Village, either based on Village water usage or by separate
agreement with the Village; and
WHEREAS, the parcels identified in Schedule "I", Category "B" are those parcels that
are paying capital charges only to WST/TIA (pipe area), are not paying additional capital
charges to WST/TIA Phase 3A, and are paying double O&M charges to the Village based on
Village water usage; and
WHEREAS, there are certain parcels located within the Town that are not included
within WST/TIA (or any Phase thereof), but have been permitted to connect to the Village's
sewer facilities pursuant to separate agreement with the Village, which parcels are hereinafter
referred to as the Village Authorized Tenants, which parcels, together with their respective tax
grid numbers, are identified on Schedule "2"; and
WHEREAS, the Town has agreed that the waste water from the Town Authorized
Parcels identified on Schedule "I", Category "A" and Category "B" will not be charged against
the Village's authorized waste water treatment capacity of 1,000,000 gallons per day; and
WHEREAS, subject to compliance with the terms and conditions set forth in this Waste
Water Contract, the Village hereby confirms and agrees to accept the waste water generated from
the Town Authorized Parcels, and transport same to the Tri -Municipal Plant via the Village's
Sewer Facility; and
WHEREAS, this Waste Water Transmission Contract is intended to establish the
protocol, procedures and standards pursuant to which the Town or Village will authorize the use
of the other municipality's waste water transmission facilities when design considerations dictate
that such use would be the most efficient and practical way of transmitting sewage to the Tri -
Municipal Sewer Plant; and
WHEREAS, this Waste Water Transmission Contract is also intended to establish the
protocol, procedure and policy with respect to the re -levy of sewer charges, in the event any of
the Town Authorized Parcels or Village Authorized Parcels fail to pay sewer charges to the
appropriate municipality.
NOW, THEREFORE, BE IT RESOLVED:
1. The recitations above set forth are incorporated in this Resolution as if fully set
forth and adopted herein.
2. The Town Board hereby approves the terms and conditions of the Waste Water
Transmission Contract authorized by Article 5-G of the General Municipal Law, a
copy of which is affixed hereto.
3. The Town Board hereby authorizes the Town Supervisor, Christopher J. Colsey,
to execute the Waste Water Transmission Contract in substantially the same form
as affixed hereto.
4. The Town Supervisor, Christopher J. Colsey, and the Attorney to the Town,
Albert P. Roberts, are further authorized and directed to undertake such acts as are
necessary to implement the provisions of this Resolution and the provisions of the
Waste Water Transmission Contract.
The foregoing was put to a vote which resulted as follows:
CHRISTOPHER COLSEY, SUPERVISOR
Voting:
AYE
WILLIAM H. BEALE, COUNCILMAN
Voting:
AYE
VINCENT F. BETTINA, COUNCILMAN
Voting:
AYE
ISMAY CZARNIECKI, COUNCILWOMAN
Voting:
AYE
JOSEPH P. PAOLONI, COUNCILMAN
Voting:
AYE
Dated: Wappingers Falls, New York
3/14/2011
The Resolution is hereby duly declared adopted.
J HN . MASTERSON, TOWN CLERK
WASTE WATER TRANSMISSION CONTRACT
BETWEEN
VILLAGE OF WAPPINGERS FALLS
AND
THE TOWN OF WAPPINGER
Pursuant to Article 5-G of the General Municipal Law
THIS AGREEMENT dated the day of , 2011, by and between,
VILLAGE OF WAPPINGERS FALLS,
a municipal corporation of the State of New York,
with offices at
2628 South Avenue, Wappingers Falls, New York 12590
(hereinafter referred to as "VILLAGE"),
and
TOWN OF WAPPINGER,
a municipal corporation of the State of New York,
with offices situate at
20 Middlebush Road, Wappingers Falls, New York 12590
and
the UNITED WAPPINGER SEWER DISTRICT
(hereinafter collectively referred to as "TOWN").
WITNESSETH:
WHEREAS, the Tri -Municipal Sewer Treatment Plant is owned collectively by the
VILLAGE and the Town of Poughkeepsie and is managed by the Tri -Municipal Sewer
Commission (hereinafter the "Commission"); and
WHEREAS, the TOWN authorized the formation of the Wappinger Sewer Transmission
Treatment Improvement Area (hereinafter "WST/TIA") for the purposes of treating waste water
at the Tri -Municipal Sewer Plant; and
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WHEREAS, the TOWN, on behalf of WST/TIA negotiated a long-term lease agreement
with the Tri -Municipal Sewer Commission for the purposes of treating wastewater at the Tri -
Municipal Sewer Plant; and
WHEREAS, the TOWN, on behalf of the WST/TIA constructed and operated various
waste water facilities including a waste water transmission line (hereinafter the "Sewer Main")
located in the Town of Wappinger for the purposes of collecting waste water within the
jurisdictional boundaries of WST/TIA and transmitting same to the Tri -Municipal Sewer
Treatment Plant for treatment pursuant to a contract between the Town of Wappinger and the
Tri -Municipal Sewer Commission (hereinafter the "Treatment Contract"); and
WHEREAS, the TOWN also authorized the Wappinger Sewer Transmission/Treatment
Improvement Area Phase 3A (hereinafter "WST/TIA 3A") which provided for an expansion of
sewer service into additional jurisdictionally defined areas within the TOWN, and collecting
sewage therefrom and transmitting same to the Tri -Municipal Sewer Treatment Plant for
treatment in accordance with the Treatment Contract; and
WHEREAS, by Order dated December 13, 2010, the Town of Wappinger caused the
formation of the United Wappinger Sewer District (hereinafter "UWSD") which consisted of all
of the lateral sewer collection areas within WST/TIA Phases 1, 2 and 3A, including tenants
thereof for the purposes of funding the Town of Wappinger's share of capital improvements to
be made to the Tri -Municipal Sewer Treatment Plant in accordance with the Treatment Contract;
and
WHEREAS, the VILLAGE is located partially within the Town of Wappinger and
partially within the Town of Poughkeepsie; and
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WHEREAS, there are several parcels located within the TOWN portion of the
VILLAGE and several parcels located within the TOWN in close proximity to the VILLAGE
that would benefit by utilizing the other municipality's waste water transmission facilities to
transport waste water to the Tri -Municipal Sewer Plant; and
WHEREAS, pursuant to the Treatment Contract, the TOWN, on behalf of UWSD
(formerly WST/TIA 1, 2 & 3A, including tenants thereof) is authorized to treat a maximum of
1,375,000 gallons per day of waste water at the Tri -Municipal Sewer Plant; and
WHEREAS, all of the Village sewage is treated at the Tri -Municipal Sewer Plant; and
WHEREAS, the VILLAGE, as a principal owner of the Tri -Municipal Sewer Plant, has
present treatment capacity of 1,000,000 gallons per day of waste water at the Tri -Municipal
Sewer Plant; and
WHEREAS, because of design considerations, two parcels of property located within the
jurisdictional boundaries of the Village of Wappingers Falls were previously connected to the
Sewer Main as part of the expansion of sewer service undertaken by WST/TIA 3A, which
parcels are specifically identified as follows:
Current Owner Tax Grid Number
Hollowbrook of Dutchess, LLC* 135601-6158-19-688002
Hollowbrook Associates, LLC* 135601-6157-07-709968
(*collectively known as the Hollowbrook properties); and
WHEREAS, another parcel located within the Village of Wappingers Falls, previously
owned by TGS Associates, identified as tax grid number 135601-6158-20-779013 (hereinafter
designated as the "Riverbend II Parcel") is presently the subject of a site plan application
pending before the Village of Wappingers Falls Planning Board for authorization to construct a
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residential apartment complex not to exceed 54 residential dwelling units, containing a total of
no more than 100 bedrooms; and
WHEREAS, by Resolution dated May 26, 2009 (Resolution No. 2009-196), the TOWN
has conceptually agreed to accept the waste water generated from the Riverbend II Parcel; and
WHEREAS, the VILLAGE has agreed that the waste water from the Hollowbrook
Parcels and the Riverbend II Parcel will be charged against the VILLAGE'S authorized waste
water treatment capacity at the Tri -Municipal Sewer Plant and will not be charged against the
TOWN'S authorized waste water treatment capacity of 1,375,000 gallons per day; and
WHEREAS, subject to compliance with the terms and conditions set forth in this
Agreement, the TOWN hereby confirms and agrees to transport the waste water generated from
the following three parcels located within the VILLAGE via the Sewer Main (hereinafter the
"VILLAGE AUTHORIZED PARCELS"):
Current Owner Tax Grid Number
Hollowbrook of Dutchess, LLC 135601-6158-19-688002
Hollowbrook Associates, LLC 135601-6157-07-709968
TGS Associates (Riverbend II Parcel) 135601-6158-20-779013
(hereinafter the "VILLAGE AUTHORIZED PARCELS"); and
WHEREAS, the TOWN has determined it has sufficient waste water transmission
capacity sufficient to allow it to transmit sewage from the VILLAGE AUTHORIZED
PARCELS (above identified) to the Tri -Municipal Sewer Plant; and
WHEREAS, the TOWN and VILLAGE have further determined that their respective
best interests will be served by an Agreement which will provide for coordinated sanitary waste
water collection services utilizing the Sewer Main to insure that the aforementioned VILLAGE
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parcels will be provided waste water transmission services in a manner that is the most efficient
and practical way for transmitting sewage to the Tri -Municipal Sewer Plant; and
WHEREAS, various parcels located within the jurisdictional boundaries of the TOWN
which were included in the original formation of WST/TIA have been connected to the Tri -
Municipal Sewer Plant by connection to the VILLAGE'S sewer facilities, and are hereinafter
referred to as the "TOWN AUTHORIZED PARCELS", which parcels with their respective tax
grid numbers are identified on Schedule "I", Category "A" or Category `B"; and
WHEREAS, the parcels identified in Schedule "I", Category "A" are those parcels
within the TOWN which were included in both the jurisdictional boundary of the original
WST/TIA (pipe area) and WST/TIA Phase 3A (sewer lateral area) but pay Operation and
Maintenance charges (O&M) to the VILLAGE, either based on Village water usage or by
separate agreement with the VILLAGE; and
WHEREAS, the parcels identified in Schedule "I", Category "B" are those parcels that
are paying capital charges only to WST/TIA (pipe area), are not paying additional capital
charges to WST/TIA Phase 3A, and, are paying double O&M charges to the VILLAGE based on
Village water usage; and
WHEREAS, there are certain parcels located within the TOWN that are not included
within WST/TIA, (or any Phase thereof), but have been permitted to connect to the VILLAGE'S
sewer facilities pursuant to separate agreement with the VILLAGE, which parcels are hereinafter
referred to as the VILLAGE AUTHORIZED TENANTS, which parcels, together with their
respective tax grid numbers, are identified on Schedule "2"; and
WHEREAS, the TOWN has agreed that the waste water from the TOWN
AUTHORIZED PARCELS identified on Schedule "I", Category "A" and Category "B" will
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not be charged against the VILLAGE'S authorized waste water treatment capacity of 1,000,000
gallons per day; and
WHEREAS, subject to compliance with the terms and conditions set forth in this
Agreement, the VILLAGE hereby confirms and agrees to accept the waste water generated from
the TOWN AUTHORIZED PARCELS, and transport same to the Tri -Municipal Plant via the
Village's Sewer Facility; and
WHEREAS, this Agreement is intended to establish the protocol, procedures and
standards pursuant to which the TOWN or VILLAGE will authorize the use of the other
municipality's waste water transmission facilities when design considerations dictate that such
use would be the most efficient and practical way of transmitting sewage to the Tri -Municipal
Sewer Plant; and
WHEREAS, this Agreement is also intended to establish the protocol, procedure and
policy with respect to the re -levy of sewer charges, in the event any of the TOWN
AUTHORIZED PARCELS or VILLAGE AUTHORIZED PARCELS fail to pay sewer
charges to the appropriate municipality.
NOW, THEREFORE, in consideration of the mutual covenants and conditions herein
set forth and other good and valuable consideration, the Town of Wappinger, by and on behalf of
the United Wappinger Sewer District (UWSD) and the Village of Wappingers Falls hereby agree
as follows:
1. Recitations Incorporated. The recitations above set forth are incorporated in
this Agreement as if fully set forth and recited herein.
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2. Definitions.
2.1. SEWER MAIN — the Town of Wappinger owned and operated sewer
transmission line constructed, owned and operated by WST/TIA which transports and discharges
sewage to the Tri -Municipal Sewer Plant;
2.2. TOWN AUTHORIZED PARCELS — those parcels of property located
within the jurisdictional boundaries of the Town of Wappinger and WST/TIA which have been
included in UWSD;
2.3. VILLAGE AUTHORIZED PARCELS — those parcels located within the
Village of Wappingers Falls and the Town of Wappinger which are connected to the Tri -
Municipal Sewer Plant via the Sewer Main;
2.4. VILLAGE SEWER FACILITIES— Village sewer laterals and transmission
pipes which transports and discharges sewage to the Tri -Municipal Sewer Plant;
2.5. WST/TIA — Wappinger Sewer Transmission Treatment Improvement Area;
an Article 12-c Improvement Area which constructed a sewer transmission line and sewer lateral
facility (Phases 1, 2 and 3A) which discharges sewage to the Tri -Municipal Sewer Plant.
3. Term. The term of this Agreement shall commence upon the execution of this
Agreement by both the TOWN and the VILLAGE and shall continue in full force and effect as
long as either the VILLAGE AUTHORIZED PARCELS are connected to the Sewer Main, or
the TOWN AUTHORIZED PARCELS are connected to the Village Sewer Facility.
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ARTICLE I
VILLAGE PROPERTIES USING TOWN SEWER MAIN
4. Town Sewer Main.
4.1. The parties acknowledge that the TOWN, by and on behalf of WST/TIA 1, 2,
& 3A owns, operates and maintains the Sewer Main which transports waste water to the Tri -
Municipal Sewer Plant located in the Town of Poughkeepsie.
4.2. The TOWN represents that the Sewer Main has been designed, constructed
and operated according to plans and specifications that comply with all applicable Federal, State,
County and Town laws, rules and regulations and are in compliance with the rules and
regulations of the Tri -Municipal Sewer Commission.
5. Interconnection. The TOWN represents that the Sewer Main is connected to the
Tri -Municipal Sewer Plant and that all necessary permits and regulatory approvals from agencies
having jurisdiction over the Sewer Main have been obtained and are in full force and effect and
have not been violated.
6. Sewer Connection Authorized.
6.1. Subject to compliance with the terms and conditions of this Agreement, the
VILLAGE AUTHORIZED PARCELS which are located within the VILLAGE and TOWN.
6.2. The TOWN and the VILLAGE hereby confirm that the Hollowbrook
properties have been previously connected to the Sewer Main.
6.3. The VILLAGE and TOWN acknowledge that the Riverbend II Parcel will not
be connected to the Sewer Main until such time as the Riverbend II Parcel has received Final
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Site Plan Approval from the Village of Wappingers Falls Planning Board, for an apartment
complex not to exceed 54 residential dwelling units, containing a total of no more than 100
bedrooms.
6.4. The point of connection of the Riverbend II Parcel to the Sewer Main shall be
in the sole discretion of the TOWN, upon advice and recommendation of the Engineer to the
TOWN.
7. Treatment Charged To Village. The TOWN will receive the waste water from
the VILLAGE AUTHORIZED PARCELS and transmit the waste water via the Sewer Main to
the Tri -Municipal Sewer Treatment Plant to be treated pursuant to the Treatment Contract
between the VILLAGE and the Tri -Municipal Sewer Commission.
8. Compliance With Town's Sewer Use Code.
8.1. The waste water delivered to the Sewer Main from the VILLAGE
AUTHORIZED PARCELS shall comply in all respects with Chapter 196, Article VII of the
Town of Wappinger Code entitled "Sewer Use", and, shall also comply with the terms and
conditions of the Agreements between the Town of Wappinger and the Tri -Municipal Sewer
Commission, copies of which have been made available to the VILLAGE, the TOWN and the
owners of the VILLAGE AUTHORIZED PARCELS. The VILLAGE and TOWN each
acknowledge that the Town's "Sewer Use" Code is essentially identical to the Village's "Sewer
Use" Code contained in Section 122 of the Village Code.
8.2. The VILLAGE acknowledges and agrees that it will be bound by all of the
provisions of Town Code Chapter 196, Article VII in connection with the implementation of this
Agreement and the VILLAGE will promptly prosecute any violations of said Town Code against
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the property owners to bring the waste water discharge into compliance with the provisions
thereof
8.3. The parties expressly acknowledge that repeated violations of the TOWN'S
Sewer Use Code shall be deemed a major default under the terms and conditions of this
Agreement and may result in termination of this Agreement.
8.4. The TOWN has the right to inspect the sewer facilities located within any of
the VILLAGE AUTHORIZED PARCELS and may do so by requesting a simultaneous
inspection with the appropriate Village Department or Agency. In the event such inspection
reveals violations of the Town's Sewer Use Code, the Village Clerk and the Village Plumbing
Inspector are to be promptly notified in writing of any such violations.
9. Waste Water Allocated To Village. The VILLAGE shall allocate sufficient
waste water treatment capacity at the Tri -Municipal Sewer Plant to satisfactorily treat all waste
water originating from the VILLAGE AUTHORIZED PARCELS in compliance with all
Federal, State, and County laws, rules and regulations or the rules and regulations of any
regulatory agency having jurisdiction over waste water treatment in the State of New York. The
TOWN agrees to utilize the VILLAGE water meter reading as the basis for determining the
amount of sewer treated at the Tri -Municipal Sewer Plant from the VILLAGE AUTHORIZED
PARCELS and charged to the VILLAGE authorized treatment capacity.
10. Town's Compliance.
10.1. The TOWN, on behalf of the UWSD, shall operate, maintain, repair and use
the Sewer Main in compliance with the Treatment Contract and all other applicable laws, rules,
regulations, findings, rulings and official notices of any regulatory agency having jurisdiction
over the Sewer Main.
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10.2. The TOWN shall take all steps necessary and use all of its enforcement
powers to ensure that the owners of the TOWN AUTHORIZED PARCELS shall operate,
maintain, repair and use any waste water collection pipes and appurtenances located within their
respective boundaries in compliance with all applicable laws, rules, regulations, findings, rulings
and official notices of any regulatory agency having jurisdiction thereof, so as to insure
compliance with the Treatment Contract between the TOWN and the Tri -Municipal Sewer
Commission.
11. Village's Compliance.
11.1. The VILLAGE shall take all steps necessary and use all of its enforcement
powers to ensure that the owners of the VILLAGE AUTHORIZED PARCELS shall operate,
maintain, repair and use any waste water collection pipes and appurtenances located within their
respective boundaries in compliance with all applicable laws, rules, regulations, findings, rulings
and official notices of any regulatory agency having jurisdiction thereof, so as to insure
compliance with the Treatment Contract between the TOWN and the Tri -Municipal Sewer
Commission.
12. Sewer Use Fee To Be Paid For VILLAGE AUTHORIZED PARCELS.
12.1. The VILLAGE shall pay the UWSD a sewer use fee for the use of the Sewer
Main for the transmission of waste water from the VILLAGE AUTHORIZED PARCELS and
for sewer treatment at the Tri -Municipal Sewer Plant. The use fee paid by the VILLAGE to the
TOWN shall be the same fee charged by the VILLAGE to its resident customers. The use fee
charged by the TOWN to the VILLAGE will be done on a parcel by parcel basis in accordance
with the sewer use fee charges imposed by the Village Board annually for various categories of
properties (industrial, commercial, residential, multi -family, etc.), utilizing each parcel's water
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meter reading as the basis for such charge. The parties acknowledge that the sewer use fee as
established by the VILLAGE includes as a component thereof, capital charges and it is intended
that such capital charges be paid to the TOWN as part of this Agreement.
12.2. The TOWN also acknowledges that the VILLAGE AUTHORIZED
PARCELS are provided potable water service from the VILLAGE water system and the
VILLAGE sewer use fee charges are based on a percentage of water consumed. The TOWN
agrees to accept the VILLAGE water meter reading as the basis for determining the amount of
sewer treated at the Tri -Municipal Sewer Plant and to be allocated to the VILLAGE authorized
capacity at said sewer plant. In those rare circumstances when VILLAGE AUTHORIZED
PARCELS are not connected to the VILLAGE water system, the VILLAGE and the TOWN
shall establish a sewer use fee to be charged to such parcels.
13. Fees Charged To VILLAGE AUTHORIZED PARCELS.
13.1. The TOWN will charge the VILLAGE the sewer use fee for the VILLAGE
AAUTHORIZED PARCELS in accordance with the sewer use fee established by the
VILLAGE on an annual basis and shall first bill the parcel owners directly for such charges.
13.2. In the event any of the VILLAGE AUTHORIZED PARCELS fail to pay
the sewer use fee, in accordance with the TOWN'S billing practices, the VILLAGE shall take
such steps as necessary to have any unpaid sewer use fees re -levied on the tax bill of the
VILLAGE AUTHORIZED PARCELS. Upon receipt of payment from the re -levied tax bills,
the VILLAGE will promptly reimburse the TOWN for any outstanding O&M charges due by the
VILLAGE AUTHORIZED PARCEL owners, including any penalties and interest imposed by
the TOWN.
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14. Riverbend II: Permits And Approvals.
14.1. The VILLAGE shall require the owner of the Riverbend lI Parcel to acquire,
at its own expense, any and all permits necessary to undertake the sewer improvements provided
herein, including Site Plan approval from the Village of Wappingers Walls Planning Board, New
York State Department of Health approval, Dutchess County Department of Health approval,
etc.
15. Construction Of Sewer Improvements By Riverbend II Parcel Owner.
15.1. It is understood by the parties that the owner(s) of the Riverbend lI Parcel,
will, at its sole cost and expense, design and construct a Sewer Main extension to the authorized
point of connection, together with other necessary appurtenances as shown on the plans attached
as Schedule "3" attached hereto and made a part hereof .
15.2. Installation of the Sewer Main extension shall comply with all applicable
statutes, rules and regulations adopted by any federal, state or local government or any regulatory
agency having jurisdiction thereof.
15.3. The Sewer Main extension to be constructed by the owner of the Riverbend
II Parcel will conform in all particulars to good engineering practices and shall be compatible
and interoperable with the Sewer Main as constructed and owned by the TOWN.
15.4. Construction of the Sewer Main extension to the point of connection is
subject to final inspection and approval by the Engineer to the Town. The Sewer Main
constructed by the owner of the Riverbend II Parcel may not be connected to the Sewer Main
until approval is given by the Engineer to the Town.
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15.5. The TOWN must approve all plans and specifications for the
interconnection of Riverbend's Sewer Main to the Sewer Main and the TOWN will be permitted
to inspect the construction as it progresses. The owner of the Riverbend II Parcel is required to
reimburse the TOWN for the reasonable costs of all professional review fees, including
engineering review and inspection for this project, including post completion review to the extent
actually incurred by the TOWN.
15.6. Prior to the commencement of any work on the project, the owner of the
Riverbend II Parcel shall deposit with the TOWN, in escrow, an amount to be determined by the
parties prior to the commencement of construction. This escrow shall be used to reimburse the
TOWN as necessary for the actual costs incurred by the TOWN for professional review and
inspection of the project. The escrow shall be replenished as necessary upon demand by the
TOWN. Any unused escrow shall be returned to the owner. If such escrow is not sufficient, the
owner will pay such additional sum as necessary to repay the TOWN for its costs for
professional review and inspection.
16. Prohibited Uses. This Agreement shall be valid for only so long as the
Hollowbrook properties are used for commercial office or related uses and the Riverbend II
Parcel is only used as an apartment complex not to exceed 54 dwelling units containing a total of
no more than 100 bedrooms. In the event an application is presented to the Village of
Wappingers Falls Planning Board for a change in use from that described above, then this
Agreement shall terminate as to the affected parcel unless a new agreement for such use is
authorized by the TOWN.
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ARTICLE II
TOWN PROPERTIES USING VILLAGE SEWER FACILITIES
17. Village Sewer Main And Facilities.
17.1 The parties acknowledge that the TOWN, through WST/TIA Phases 1, 2,
and 3A, has constructed certain sewer facilities, including sewer pipes, sewer mains, sewer
laterals, and expansions of the Tri -Municipal Sewer Plant. Such construction has been funded by
the issuance of Serial Bonds, the cost of which has been charged back to the properties located in
WST/TIA Phases 1, 2, and 3A through benefit assessments assigned to each parcel. The parties
further acknowledge that the sewer facilities constructed pursuant to WST/TIA Phases 1, 2, and
3A contemplated interconnection of certain TOWN properties to the VILLAGE sewer
transmission pipes and facilities. These parcels are referred to as the TOWN AUTHORIZED
PARCELS identified in Schedule "1" which are identified on Schedule "1" attached hereto.
18. Interconnection. The VILLAGE represents that the Sewer Facilities owned and
operated by the VILLAGE are connected to the Tri -Municipal Sewer Plant and that all necessary
permits and regulatory approvals from agencies having jurisdiction over the Sewer Facilities
have been obtained and are in full force and effect and have not been violated.
19. Sewer Connection Authorized.
19.1. The TOWN AUTHORIZED PARCELS, identified in Schedule "1" are
hereby authorized to be connected to the Village Sewer Facilities owned by the VILLAGE.
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20. Transmission By Village. The VILLAGE will receive the waste water from the
TOWN AUTHORIZED PARCELS, identified in Schedule "I", and transmit the waste water
via the Village Sewer Facilities to the Tri -Municipal Sewer Treatment Plant to be treated
pursuant to the Treatment Contract between the TOWN and the Tri -Municipal Sewer
Commission.
21. Waste Water Allocated To Village. The TOWN shall allocate sufficient waste
water treatment capacity at the Tri -Municipal Sewer Plant to satisfactorily treat all waste water
originating from the TOWN AUTHORIZED PARCELS in compliance with all Federal, State,
and County laws, rules and regulations or the rules and regulations of any regulatory agency
having jurisdiction over waste water treatment in the State of New York. Whenever possible,
and to the extent that any of the TOWN AUTHORIZED PARCELS are also connected to the
VILLAGE water system, the VILLAGE water meter reading shall be used as the basis for
determining the amount of sewer treated at the Tri -Municipal Sewer Plant from the TOWN
AUTHORIZED PARCELS and charged to the TOWN authorized treatment allocation.
22. Compliance With Village Sewer Use Code.
22.1. The waste water delivered to the Village Sewer Facilities from the TOWN
AUTHORIZED PARCELS shall comply in all respects with Village's "Sewer Use" Code
contained in Section 122 of the Village Code, and shall also comply with the terms and
conditions of the Agreements in effect between the TOWN, VILLAGE, and the Tri -Municipal
Sewer Commission. The VILLAGE and TOWN acknowledge that each municipality has
adopted a "Sewer Use" Code that is essentially identical to the other municipality's.
22.2. The TOWN acknowledges and agrees that it will be bound by all of the
provisions of Section 122 of the VILLAGE in connection with the implementation of this
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Agreement and the TOWN will promptly prosecute any violations of said Village Code against
the property owners to bring the waste water discharge into compliance with the provisions
thereof.
22.3. The parties expressly acknowledge that repeated violations of the
VILLAGE'S Sewer Use Code shall be deemed a major default under the terms and conditions of
this Agreement and may result in termination of this Agreement.
22.4. The VILLAGE has the right to inspect the sewer facilities located within
any of the TOWN AUTHORIZED PARCELS and may do so by requesting a simultaneous
inspection with the appropriate Town Department or Agency. In the event such inspection
reveals violations of the VILLAGE's "Sewer Use" Code, the Town Clerk and the Town
Enforcement Officers are to be notified in writing of any such violations.
23. Route 9D Sewer Main Extension.
23.1. The TOWN, pursuant to WST/TIA Phase 3A constructed a Sewer Main
Extension along South Avenue (Route 91)), which interconnected with the Village Sewer Mains.
Several of the parcels on Schedule "1" are connected to the Village Sewer Facilities through this
Sewer Main Extension. Because of its interconnection with the Village's Sewer Facilities, the
VILLAGE agrees to undertake all routine inspections and maintenance of said Sewer Main
Extension. The TOWN will undertake and pay for all capital improvements and replacement
charges required of said Sewer Main Extension. The TOWN and the VILLAGE agree that they
shall operate, maintain, repair and use the Sewer Main Extension and the Sewer Facilities in
compliance with the Treatment Contract and all other applicable laws, rules, regulations,
findings, rulings and official notices of any regulatory agency having jurisdiction over the Sewer
Main Extension and/or Sewer Facilities within the VILLAGE.
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23.2. The TOWN shall take all steps necessary and use all of its enforcement
powers to ensure that the owners of the TOWN AUTHORIZED PARCELS shall operate,
maintain, repair and use any waste water collection pipes and appurtenances located within their
respective boundaries in compliance with all applicable laws, rules, regulations, findings, rulings
and official notices of any regulatory agency having jurisdiction thereof, so as to insure
compliance with the Treatment Contract between the TOWN and the Tri -Municipal Sewer
Commission.
24. Fees Charged To TOWN AUTHORIZED PARCELS.
24.1. The TOWN AUTHORIZED PARCELS shall pay capital benefit
assessments to the TOWN in accordance with the Benefit Unit Formula approved by the NYS
State Comptroller's Office, Department of Audit and Control.
24.2. The TOWN AUTHORIZED PARCELS shall pay Operation and
Maintenance charges (usage charges) to the VILLAGE, pursuant to bills sent directly by the
VILLAGE to the parcel owners; the O&M charges for such parcels shall be based upon water
consumed, whenever the subject parcels are connected to the Village Water System.
24.3. The TOWN AUTHORIZED PARCELS not connected to Village water
shall pay a quarterly sewer use fee as set by the Village Board from time to time.
24.4. In the event any of the TOWN AUTHORIZED PARCELS fail to pay the
operation and maintenance charges (usage charges) to the VILLAGE, the TOWN shall take such
steps as necessary to have any unpaid operation and maintenance charges re -levied on the tax bill
of the TOWN AUTHORIZED PARCELS. Upon receipt of payment of the unpaid operation
and maintenance charges from the re -levied tax bills, the TOWN will promptly reimburse the
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VILLAGE for such outstanding O&M charges due by the TOWN AUTHORIZED PARCEL
owners, including any penalties and interest imposed by the VILLAGE.
25. Budget Adoption. The TOWN and the VILLAGE shall each prepare their
respective budgets every fiscal year as required by Town or Village Law. The amounts to be paid
by the VILLAGE to the TOWN, or by the TOWN to the VILLAGE, for each budget year shall
be included in each municipality's budget and shall be charged and levied against either the
TOWN AUTHORIZED PARCELS or the VILLAGE AUTHORIZED PARCELS as the
case may be. The payment of the charges and fees by the VILLAGE to the TOWN, or by the
TOWN to the VILLAGE, shall be at such time and in such amounts as are established from time
to time by the TOWN or the VILLAGE consistent with this Agreement and applicable
provisions of Town Law or Village Law.
26. Temporary Discontinuance Of Service. Either the TOWN or the VILLAGE
may, upon reasonable notice, except in the case of an emergency, suspend, curtail or discontinue
service for the following reasons:
26.1. for the purpose of making permanent or temporary repairs, changes, or
improvements to the Sewer Main or the Sewer Facilities;
26.2. for good faith compliance with any governmental order or directive,
notwithstanding that such order or directive may subsequently be held to be invalid;
26.3. for non-payment of any valid bill due for service to any of the TOWN or
VILLAGE AUTHORIZED PARCELS provided that a notice of default has been given to the
parcel owner, which notice of default provides for a period of twenty (20) days to cure the
default in payment or file a written notice of objection to the TOWN or the VILLAGE as the
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case may be. If any of the TOWN or VILLAGE AUTHORIZED PARCEL owners file an
objection to the Town Board or the Village Board, the Town Board or the Village Board shall
hear such objection at its next Board meeting and determine the validity of such objection. In the
event the objection is not sustained, then service may be discontinued;
26.4. disconnecting or tampering any of the water meters or interfering with any
of the water meters or remote meter reading service devices, or tampering with any other facility
of the TOWN or VILLAGE without permission so as to impair the ability of the TOWN and/or
the VILLAGE to accurately determine sewer use charges;
26.5. providing sewer service to others without the approval of the TOWN or
VILLAGE, which approval shall not be unreasonably or arbitrarily withheld;
26.6. refusal to allow reasonable access to any of the authorized parcels for
necessary purposes in connection with rendering of service including making emergency repairs.
27. Early Termination Of Agreement. The TOWN or VILLAGE may terminate
the sewer transmission service authorized under this Agreement, subject to Dutchess County
Health Department approval, and in accordance with the following:
27. La. Each party acknowledges that the other party has the right to discontinue
sewer service to customers outside of their respective jurisdictional boundaries, when sewer
service is insufficient to meet the needs of their respective residents. In the event that there is no
longer a surplus of waste water transmission capacity to service any of the TOWN or
VILLAGE AAUTHORIZED PARCELS, the TOWN or VILLAGE may terminate the sewer
transmission service otherwise authorized under this Agreement in accordance with the
following:
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27.1.b. Either party shall give the other party and any of the affected TOWN or
VILLAGE AUTHORIZED PARCEL owners sufficient time to file an application for approval
of an alternate methodology to transport waste water to the Tri -Municipal Sewer Plant.
27.1.c. Neither the TOWN, the VILLAGE, or any TOWN or VILLAGE
AUTHORIZED PARCEL owner shall be entitled to any damages or penalties if this
Agreement is terminated in accordance with this section.
28. Default. This Agreement may be terminated by either the TOWN or the
VILLAGE upon the following events:
28.1. The failure of any of the owners of any of the TOWN or VILLAGE
AUTHORIZED PARCELS to remit payment within thirty (30) days of billing and after its
failure to cure such failure within ten (10) days after receipt of written notice of such default;
28.2. The failure of any of the owners of any of the TOWN or VILLAGE
AUTHORIZED PARCELS to cure any default of any other material obligation under this
Agreement within twenty (20) days after written notice and manner of cure of default thereof. In
the event the default cannot be cured within twenty (20) days, the owner of any affected TOWN
or VILLAGE AUTHORIZED PARCEL shall be entitled to a reasonable time to cure such
default.
29. Costs And Attorneys Fees. As a condition to permit the TOWN or VILLAGE
AUTHORIZED PARCELS to utilize the Sewer Main or the Village's Sewer Facilities, the
owners of any of the TOWN or VILLAGE AUTHORIZED PARCELS must agree that they
will be liable for all costs, charges, duties and responsibilities imposed upon the owners by this
Agreement. The parties may enforce this Agreement by judicial action and the prevailing party
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shall be entitled to recover its reasonable costs and attorney's fees in any action to enforce this
Agreement.
30. Authority. It is expressly understood and acknowledged that the signatories to
this Agreement have the power to bind their respective parties to all of the terms and conditions
contained herein. All resolutions of the respective governing bodies of the VILLAGE and
TOWN have been adopted by the Village Board and Town Board.
31. Applicable Law. This Agreement shall be governed under the laws of the State
of New York.
32. Venue. Venue for any dispute arising from this Agreement shall be placed in a
New York State Court of competent jurisdiction located within the County of Dutchess, State of
New York.
33. Entire Agreement. This Agreement and any attachments hereto constitute the
entire agreement and understanding of the parties with respect to the subject matter hereof and
supersede all prior agreements and understandings, whether oral or written: No modification or
claimed waiver of any of the provisions hereof shall be valid unless in writing a d signed by the
duly authorized representative against whom such modification or waiver is sought to be
enforced.
34. Waiver. None of the terms of this Agreement can be waived or modified except
by an express agreement on writing signed by both parties. There are no representations,
promises, warranties, covenants or undertakings other than those contained in this Agreement,
which represents the entire understanding of the parties. The failure of either party hereto to
enforce, or the delay by either party in enforcing, any of its rights under this Agreement shall not
be deemed a continuing waiver or a modification thereof and either party may, within the time
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provided by applicable law, commence appropriate legal proceedings to enforce any or all of
such rights.
35. Severability. All rights, powers and remedies provided herein may be exercised
only to the extent that the exercise thereof does not violate any applicable law, and are intended
to be limited to the extent necessary so that they will not render this Agreement invalid,
unenforceable or not entitled to be recorded under any applicable law. If any term, covenant or
condition of this Agreement shall be held to be invalid, illegal or unenforceable, the validity of
the other terms, covenants and conditions of this Agreement shall in no way be affected thereby.
IN WITNESS WHEREOF, the parties have set their hand and seals by their duly
authorized officers as of the date first above written.
VILLAGE OF WAPPINGERS FALLS
Matthew Alexander, Mayor
TOWN OF WAPPINGER and the UNITED
WAPPINGER SEWER DISTRICT
LN
Christopher J. Colsey, Supervisor
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STATE OF NEW YORK )
COUNTY OF DUTCHESS ) ss:
On the day of , 2011, before me, the undersigned, personally
appeared MATTHEW ALEXANDER known to me or proved to me on the basis of satisfactory
evidence to be the individual whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his capacity, and that by his signature on the
instrument, the individual, or the person upon behalf of which the individual acted, executed the
instrument.
Notary Public
STATE OF NEW YORK )
) ss:
COUNTY OF DUTCHESS )
On the day of , 2011, before me, the undersigned, personally
appeared CHRISTOPHER J. COLSEY known to me or proved to me on the basis of satisfactory
evidence to be the individual whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his capacity, and that by his signature on the
instrument, the individual, or the person upon behalf of which the individual acted, executed the
instrument.
Notary Public
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SCHEDULE 1— TOWN AUTHORIZED PARCELS
Category A:
The following listed parcels are within the Town, are connected to Village water,
and are currently interconnected to the Village's sewer system; they are paying
capital sewer charges to WST/TIA (Pipe Area) and Phase 3A, and pay O&M to the
Village based on Village water usage:
• McKinney — 2499 Route 9D (6157-01-244892)
• Lozier — 2505 Route 9D (6157-01-243907)
• Lathrop — 2516 Route 9D (6157-01-276923)
• Clear — 2512 Route 9D (6157-01-274916)
• Lucato — 2508 Route 9D (6157-01-287900)
• Albertson - 2502 Route 9D (6157-01-293876)
• Wolensky — 2498 Route 9D (6157-01-268885)
• Arvelo (north of Barry) — 2494 Route 9D (6157-01-264874)
• Mazochi — 18 Adams Street (6157-01-296912)
• 3 lots in the Barry Subdivision
■ they interconnect to the Village sewer system via the Town
constructed sewer transmission pipe in Route 913;
■ Village will have to set O&M rate.
Category B
The following listed parcels are within the Town, are not in 3A, but are in WST/TIA
(Pipe Area); they are connected solely through Village's sewer pipes, and pay
double O&M based on Village water usage:
• Lopez— 15 Adams Street (6157-01-308921)
• Howe —17 Adams Street (6157-01-299923)
• Pie Shaped Development Corp./Outback - 2 lots:
• 1510 Route 9 (6158-04-623038); and
■ 2.2 acre Vacant Lot on Route 9 (6158-04-665003)
• Basher — 790-792 Old Route 9N (6158-04-566044)
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