Minutes of the REGULAR MEETING CITY COUNCIL May 6, 2010 ROLL CALL: MR. K. MCGRATH, MR. M. MCGRATH, MR. BODNAR, MR. DUNNE, MR. ZALEWSKI, MR. GALUSKI, MR. BROWN, MR. LOPORTO and PRESIDENT CAMPANA ABSENT: Call to Order: 7:00 p.m. LOCAL LAW #1 LOCAL LAW NO. 2 (INTRO #2 FOR 2010) AMENDING SECTION 285-49 OF CHAPTER 285 OF THE CITY CODE OF ORDINANCES BE IT ENACTED, by the City Council of the City of Troy, as follows: SECTION 1: Section 285-49 of Chapter 285 of the City Code of Ordinances entitled “Zoning”, as it relates to Oakwood Cemetery, is amended to provide and read as follows with new matter underlined. SEE PAGE “1” AND AMENDED ZONING MAP Public Hearing will be set at the May 20th Finance Meeting ORD. #1 ORDINANCE AMENDING THE TROY CITY CODE BY PLACING A ONE YEAR MORATORIUM ON THE ESTABLISHMENT, ENLARGEMENT AND/OR EXTENSION OF SEXUALLY ORIENTED BUSINESSES The City of Troy, in city Council convened, ordains as follows: Section 1. Section 285-67 of City Code shall be amended with new matter underlined and deleted matter stricken through as follows: I. Notwithstanding any other provision of this code to the contrary, no new adult entertainment or adult retail establishment, selling or advertising adult (pornographic) products or content, shall be allowed within the City limits, nor shall any existing adult (pornographic) entertainment or retail establishment be: re-opened after being closed for six consecutive months, altered, opened, enlarged or extended in any degree or capacity, nor shall any non-conforming use be changed to an adult establishment through the duration of this moratorium. This moratorium shall be 196 effect until December Thirty-First, Two-Thousand Seven (December 31, 2007). May Thirty First Two Thousand Eleven (May 31, 2011). Section 2. This ordinance shall take effect immediately. Ordinance ADOPTED by the following vote: AYES: NOES: ABSTAIN: 9 0 0 Troy City Clerk Sent to the Mayor 5-07-10 Received from the Mayor _5-21-10____ City Clerk ______________________ Executive Action Approved _X_ Date _5-10-10_ Veto __ Not Endorsed ___ Mayor ________________ ORD. #2 ORDINANCE AMENDING THE 2010 CAPITAL BUDGET FUND TO AMEND THE RESTORE NYII CAPITAL PROJECT TO ADD FUNDS AND AND MAKE APPROPRIATIONS PER THE GRANT RECEIVED BY THE CITY OF TROY FROM THE EMPIRE STATE DEVELOPMENT CORPORATION FOR THE PURPOSE OF THE FORMER CITY HALL DEMOLITION PROJECT The City of Troy, convened in City Council, ordains as follows: Section 1. The Capital Fund is hereby amended to add and appropriate funds per the grant received by the City of Troy from the Empire State Development Corporation for the purpose of commencing the former City Hall demolition project as provided in Schedule A titled: “2010 Capital Fund Amendment Restore II – Former City Hall Demolition Project” which is attached hereto and made a part hereof. Section 2. This act shall take effect immediately. Ordinance ADOPTED by the following vote: AYES: NOES: ABSTAIN: Troy City Clerk 7 2 (LoPorto/Campana) 0 Executive Action 197 Sent to the Mayor 5-07-10 Received from the Mayor __5-21-10______ City Clerk __________________________ Approved X__ Date ___5-10-10__ Veto __ Not Endorsed ________ Mayor _____________________ MEMO IN SUPPORT Title: Ordinance amending the 2010 capital budget fund to amend the Restore NY II capital project account, and to appropriate funds per the grant received by the City of Troy from the Empire State Development Corporation for the purpose of the former City Hall demolition project. Summary of Provisions: This project includes demolition, hazardous materials abatement and site infrastructure improvements of the former City Hall and parking structure for the waterfront development project. The project also includes civil and structural engineering, environmental monitoring, and hazardous material testing costs associated with the demolition. The development will be harmonized with the existing streetscape, integrated with the riverfront (including public access from River Street) and focused upon first floor (River Street) and riverside retail space. The City of Troy expects that this downtown waterfront development project will leverage private investment, generate revenue through out-of-town guests, create jobs, and re-orient the downtown waterfront. Present Law: N/A Overall Budget Fiscal Impact: No General Fund Budget Implications. Funding is provided by ESDC and will be fully reimbursable to the City of Troy. SCHEDULE A 2010 Capital Fund Budget Amendment Restore II - Former City Hall Demolition Project 198 Capital Fund Original Budget CHANGE Revised Budget Revenue H510 H3097 State Aid - Capital projects $1,579,000.00 $ 921,000.00 Total Revenue $1,579,000.00 $921,000.00 $2,500,000.00 $1,579,000.00 $ 921,000.00 $2,500,000.00 Expenditures H960 H29-6789-0200-9551 Restore II - Former City Hall Demolition Project $2,500,000.00 Economic Assistance Development Project ORD. #3 ORDINANCE AMENDING THE 2010 GENERAL FUND CITY BUDGET TO ACCEPT A DONATION FROM WALMART FOR THE TROY FIRE DEPARTMENT FOR THE PURCHASE OF CAMERA EQUIPMENT The City of Troy, convened in city Council, ordains as follows: Section 1. The 2010 City General Fund Budget is hereby amended to accept a donation in the amount of $750 from Walmart to cover the costs of purchasing camera equipment for the Troy Fire Department and modify appropriations within the 2010 Fire Department Operating Budget as provided in Schedule “A” entitled: “Walmart Donation” which is attached hereto and made a part hereof. Section 2. This act shall take effect immediately. Ordinance ADOPTED by the following vote: AYES: 9 NOES: 0 ABSTAIN: 0 199 Troy City Clerk Sent to the Mayor 5-07-10 Received from the Mayor ___5-21-10_______ City Clerk __________________________ Executive Action Approved _X_ Date _5-10-10_ Veto __ Not Endorsed ______ Mayor _______________________ DEPARTMENT OF PUBLIC SAFETY BUREAU OF FIRE MEMORANDUM OF SUPPORT FOR AMENDING THE BUDGET Title: Ordinance amending the 2010 general fund city budget to accept a DONATION FROM Walmart in the amount of $750 for the Troy Fire Department for the purchase of camera equipment. Summary of Provisions: Amends the 2010 general fund city budget to accept a donation from Walmart for the purpose of purchasing a camera and related equipment for the Troy Fire Department. Effect on Present Law: None Fiscal Impact: Increase City Budget Revenues and Appropriations by $750.00. Council Committee: Public Safety/Finance SCHEDULE A City of Troy 2010 Budget Amendment Public Safety - Fire Walmart Donation Original * Budget Change Revised Budget 2010 Budget Amendment General Fund Revenue - A510 A1000-2705-0000 Gifts and Donations Total Revenue Increase $ 315,000 $ 750 $ 750 $ 315,750 Expenditures - A960 200 A3410-0303-0000 Other Materials and supplies $95,000 Total Expenditure Increase $750 $ $95,750 750 ORD. # 4 ORDINANCE AUTHORIZING THE APPROPRIATION FROM THE CITY OF TROY 2010 RESERVED FUND BALANCE (CAPITAL RESERVE) AND AMENDING THE 2010 GENERAL FUND BALANCE FOR THE PURPOSE OF FUNDING ADDITIONAL FIRE DEPARTMENT CAPITAL EQUIPMENT EXPENSES The City of Troy, in City Council, convened, ordains as follows: Section 1. The City of Troy 2010 GENERAL FUND FIRE DEPARTMENT BUDGET is herein amended as set forth in Schedule A entitled: 2010 Capital Reserve Transfer which is attached hereto and made a part hereof Section 2. This act will take effect immediately. Ordinance ADOPTED by the following vote: AYES: 9 NOES: 0 ABSTAIN: 0 Troy City Clerk Sent to the Mayor 5-07-10 Received from the Mayor ___5-21-10___ City Clerk __________________________ Executive Action Approved X__ Date ___5-10-10___ Veto __ Not Endorsed ________ Mayor _____________________ SCHEDULE A City of Troy 2010 Budget Amendment Public Safety - Fire Department 201 Assistance to Firefighter's Grant Original * Budget Change Revised Budget 2010 Budget Amendment General Fund Revenue - A510 A5000-4960-0000 FEMA - Assistance To Firefighter Grant $ - Total Revenue Increase $ 286,697 $ 286,697 $ 286,697 Expenditures - A960 A3410-0203-0000 $ 31,855 Total Expenditures Increase $ 286,697 $ 318,552 $ 286,697 ORD. #5 ORDINANCE AMENDING THE 2010 CITY BUDGET TO TRANSFER FUNDS WITHIN THE GENERAL AND WATER FUNDS BUDGET LINES The City of Troy, in City Council, convened, ordains as follows: Section 1. The City of Troy 2010 GENERAL AND WATER FUNDS budget is herein amended and set forth in Schedule A entitled: “May 2010 Budget Amendment” which is attached hereto and made a part hereof Section 2. This act will take effect immediately. Ordinance ADOPTED by the following vote: AYES: NOES: ABSTAIN: 9 0 0 202 Troy City Clerk Sent to the Mayor 5-07-10 Received from the Mayor __5-21-10____ City Clerk __________________________ Executive Action Approved X __ Date__5-10-10___ Veto __ Not Endorsed ________ Mayor _____________________ MEMO IN SUPPORT Title: Ordinance amending the 2010 General and Water Funds Budgets to amend appropriations. Summary of Provisions: This legislation is being initiated by the Administration and will transfer funds from certain accounts to other accounts where the original budget allocations now appear to be insufficient. Present Law: N/A Purpose: The administration begins the process of building a budget the summer before the budget is due. The administration files the budget on October 1st and the City Council passes the budget in December. The several hundred expense categories contained in the 2010 budget are estimates of those expenses made in 2009 for 2010. It is now deemed that certain allocations need to be increased to cover unanticipated expenses. Other budget lines will be adjusted to compensate for these increases. Overall Budget Fiscal Impact: None. 2010 May Budget Amendment General Fund Department Account No. Description Original Change Revised Budget* (+/-) Budget City Services Administration A1490-0203-0000 Vehicles 28,000 -15,000 13,000 0 15,000 15,000 City Services Administration A1490-0203-0000 Equipment Total General Fund Budget Expenditure Increase Water Fund Department Account No. Pumping Station F8320-0401-0054 Utilities Gas & Electric Vehicle Expense F1640-0304-0058 Repairs DPU Garage Description $0.00 Original Change Revised Budget* (+/-) Budget 395,000 -20,000 375,000 22,000 20,000 42,000 Total General Fund Budget Expenditure Increase $0.00 203 204 MEMO IN SUPPORT Title: Ordinance authorizing the appropriation from the City of Troy 2010 reserved fund balance (capital reserve) and amending the 2010 general fund balance for the purpose of funding additional fire department capital equipment expenses. Summary of Provisions: This legislation will authorize the appropriation from the Reserved Capital Fund balance to the City of Troy General Fund Fire Department Operating Budget for the purpose of funding additional capital expenses necessary for the fireboat including a cabin enclosure and other equipment ($9,930), and to fund the local share portion of a FEMA project totaling $318,552 by which the federal share is $286,697 and the local share is $31,855. Present Law: N/A Overall Budget Fiscal Impact: Appropriates funds from the reserved fund balance and funds the 2010 Fire Department Operating Lines (A3410-0203 and A3410-0303 in the amounts of $31,855 and $9,930 respectively). ORD. #6 ORDINANCE AMENDING THE 2010 CAPITAL BUDGET TO CREATE AN ACCOUNT TO ALLOCATE FUNDS RECEIVED THROUGH THE ISSUANCE OF A STATUTORY INSTALLMENT BOND FOR THE PURPOSE OF A REVALUATION PROJECT AND TO AUTHORIZE THE MAYOR TO ENTER INTO A CONTRACT WITH “GAR ASSOCIATES INC” TO FURTHER THE IMPLEMENTATION OF THE PROJECT The City of Troy, in City Council, convened, ordains as follows: Section 1. The City of Troy 2010 Capital Budget is herein amended as set forth in Schedule A entitled: “Revaluation project” which is attached hereto and made a part hereof 205 Section 2. This act will take effect immediately. Ordinance ADOPTED by the following vote: AYES: NOES: ABSTAIN: 9 0 0 Troy City Clerk Sent to the Mayor 5-07-10 Received from the Mayor __5-21-10 _ City Clerk _______________________ Executive Action Approved _X_ Date __5-10-10__ Veto __ Not Endorsed _______ Mayor _____________________ MEMO IN SUPPORT Title: Ordinance amending the 2010 Capital Budget to create an account to allocate funds received through the issuance of a Statutory Installment Bond for the purpose of a revaluation project and to authorize the Mayor to enter into an agreement with “GAR Associates Inc.” to further the implementation of the project. Summary of Provisions: This legislation will amend the 2010 Capital Budget to set up an account to allocate expenses relative to the Revaluation Project and add $1,000,000 received by the City through an issuance of an installment bond for the purpose of further advancing the project. Additionally, this legislation will authorize the Mayor to enter into a contract with GAR Associates, Inc for the purpose of implementing the project. The City received seven (7) proposals from consultants for services related to an upcoming City revaluation project as described in the Request for Proposal. The responses received were from the following: GAR Associates, Inc. Vision Appraisal Michael Haberman Associates, Inc./Standard Valuation Services Northern Assessment Services Maxwell Appraisal Service ResCom Consultants, LLC Tyler Technologies (CLT Appraisal and Tax Solutions) A selection committee comprised of the City Assessor, the Purchasing/Procurement Chief Account Clerk, and the City Comptroller reviewed the proposals and conducted interviews and has recommended GAR Associates, Inc. as the preferred vendor. Present Law: N/A Funded by Statutory Installment Bond as approved by Bond Resolution – City Council April 1, 2010. 206 SCHEDULE A Capital Fund 2010 Budget Amendment Revaluation Project Capital Fund Original Budget* CHANGE Revised Budget Revenue H510 H5720 Statutory Installment Bonds Total 0.00 $0.00 1,000,000.00 $1,000,000.00 1,000,000.00 $1,000,000.00 $0.00 $1,000,000.00 $1,000,000.00 Expenditures H960 H30-1355-0200-0555 Revaluation project ORD. #7 ORDINANCE AMENDING THE SPECIAL REVENUE FUND TO SET UP AN ACCOUNT TO RECOGNIZE NYS HOUSING FINANCE AGENCY NEIGHBORHOOD STABILIZATION FUNDS FOR THE PURPOSE OF EXPENSES OUTLINED IN THE NSP EMERGENCY VACANT BUILDING DEMOLITION GRANT AWARD The City of Troy, convened in City Council, ordains as follows: Section 1. A special revenue account is hereby amended to receive additional revenues from the NYS Housing Finance Agency and set up an account, and appropriate funds within as provided in Schedule “A” entitled: “Neighborhood Stabilization Program” which is attached hereto and made a part hereof. Section 2. This act shall take effect immediately. 207 Ordinance ADOPTED by the following vote: AYES: NOES: ABSTAIN: 9 0 0 Troy City Clerk Executive Action Sent to the Mayor 5-07-10 Approved _X_ Date __5-10-10__ Received from the Mayor _5-21-10______ Veto __ Not Endorsed _______ City Clerk __________________________ Mayor ____________________ MEMO IN SUPPORT Title: Ordinance amending the Special Revenue Fund to set up an account to recognize NYS Housing Finance Agency Neighborhood Stabilization Funds for the purpose of expenses outlined in the NSP Emergency Vacant Building Demolition Grant Award. Summary of Provisions: This legislation will allow for an acceptance of funds from the NYS Housing Finance Agency ($522,158) and appropriate said funds per approval Resolution #5 February Troy City Council meeting (attached). Present Law: N/A Fiscal Impact: Amending the special revenue fund and setting up an account to recognize receipt of revenues in the amount of $522,158 and to authorize expenditure of these funds for the purpose of an emergency vacant building demolition program. SCHEDULE A Special Revenue Fund Neighborhood Stabilization Program Fund Account Original * Revised Budget Change Budget 2010 Budget Amendment Special Revenue Revenue - CD510 CD4989 Federal Aid Other $ $ - $ - 522,158 $ $522,158 522,158 $522,158 Expenditures - CD960 CD8310 Neighborhood Stabilization Account Demolition $ - $ 522,158 $ 522,158 208 $ - $ 522,158 $ 522,158 ORD. # 8 ORDINANCE AMENDING THE 2010 GENERAL FUND CITY BUDGET TO ACCEPT A FEDERAL EMERGENCY MANAGEMENT AGENCY AND DEPARTMENT OF HOMELAND SECURITY "ASSISTANCE TO FIREFIGHTERS GRANT" The City of Troy, convened in city Council, ordains as follows: Section 1. The 2010 City General Fund Budget is hereby amended to accept grant fund revenue and modify appropriations within the 2010 Fire Department Operating Budget as provided in Schedule "A" entitled: Public Safety — Fire 2010 Budget Amendment "Assistance to Firefighters Grant" which is attached hereto and made a part hereof. Section 2. This act shall take effect immediately. Ordinance ADOPTED by the following vote: AYES: NOES: ABSTAIN: 9 0 0 Troy City Clerk Sent to the Mayor 5-07-10 Received from the Mayor ___5-21-10___ City Clerk _________________________ Executive Action Approved _X_ Date ____5-10-10_ Veto __ Not Endorsed _________ Mayor ______________________ FIRE DEPARTMENT MEMORANDUM OF SUPPORT FOR AMENDING THE BUDGET Title: Ordinance amending the 2010 general fund city budget to accept A "FEMA and Department of Homeland Security" Assistance to firefighters grant for the purchase of fire department equipment. Effect on Present Law: None Purpose: This grant will allow for the purchase of equipment including eight new "lifepack 15 difibrillators" for each of the three ambulances, a fully-installed key-box system, and replacement hose for the entire stock of FD hose currently over 20 years old. 209 Fiscal Impact: The total project as awarded is $318,552 by which 90% will be reimbursed by this federal grant and $31,855 will come from a local share (from the Capital Reserves). Council Committee: Public Safety/Finance SCHEDULE A 2010 Capital Reserve Transfer Current From: Budget Revised Change Budget Appropriated Capital Reserve Misc. Reserve A889 Capital Reserve Fund $1,847,638 ($41,785) $1,805,853 0.00 31,855.00 31,855.00 95,000.00 9,930.00 104,930.00 To: To: Expenditures A510 2010 General Fund Acct No. Project Description Public Safety - Fire A3410-0203-0000 Equipment (Match to Firefighters Grant) Public Safety - Fire A3410-0303-0000 Additional Equipment - Fire boat Total $41,785.00 *Balance as Amended 4/5/10 DW RES. #1 RESOLUTION APPOINTING COMMISSIONERS OF DEEDS FOR THE CITY OF TROY BE IT RESOLVED, that the City Council hereby appoints the following persons, as identified in Schedule "A", attached hereto and made a part hereof, Commissioners of Deeds for the City of Troy for the terms identified in Schedule "A". Resolution ADOPTED by the following vote: AYES: NOES: ABSTAIN: 8 0 1 (Bodnar) Troy City Clerk Sent to the Mayor 5-07-10 Received from the Mayor __5-21-10_______ City Clerk __________________________ Executive Action Approved X__ Date __5-10-10 Veto __ Not Endorsed _________ Mayor ______________________ 210 Last Gordon Popp Campbell Pirro Bodnar Casey Fetscher Jimino Liberty Mahoney Sandholt Cipriani First Address Begin Expire James R. 528 - 7th Ave 6/1/2010 5/31/2012 Mark D. 15 Erie St 6/1/2010 5/31/2012 James 896 - 6th Ave 6/1/2010 5/31/2012 Jeffrey James 476 Pawling Ave 6/1/2010 5/31/2012 Dean 103 Nyroy Dr 6/1/2010 5/31/2012 Thomas 82 Fonda Ave 6/1/2010 5/31/2012 John 2180 - 5th Ave 6/1/2010 5/31/2012 Vincent 300 - 6th Ave 6/1/2010 5/31/2012 Ellia 1600 - 7th Ave 6/1/2010 5/31/2012 M. Lynne 2707 - 15th St 6/1/2010 5/31/2012 Andrea 654 - 4th St 6/1/2010 5/31/2012 Susann 25 Manor Blvd 6/1/2010 5/31/2012 RES. #2 RESOLUTION AUTHORIZING THE MAYOR TO EXECUTE A RELEASE OF REVERTER FOR 3209-3211 SEVENTH AVE. TROY, NEW YORK ________________________________________________________________________ WHEREAS, on the 19th day of January 2009 the City conveyed 3209-3211 Seventh Ave., Troy, New York to Frederick Anselment; and WHEREAS, the deed conveying title from the City contained a reverter clause requiring the purchaser to be in compliance with all housing, building and fire codes of the City of Troy and the State of New York and; WHEREAS, Frederick Anselment has stated that he no longer has the resources time and/or ability to completely rehabilitate the property within a reasonable time and desires to convey said property to 1001 Davis, LLC; and WHEREAS, 1001 Davis, LLC has agreed to accept a deed from Frederick Anselment that contains a reverter clause requiring compliance with building, housing and fire prevention codes of the City of Troy and State of New York within six (6) months after the date of recording of the deed; WHEREAS, the members of 1001 Davis LLC have evidenced the financial capabilities to bring the property into compliance with the housing, building and fire codes of the City of Troy and the State of New York. 211 NOW THEREFORE, BE IT RESOLVED that the Mayor of the City of Troy is hereby authorized to release the reverter contingency set forth in the deed to Frederick K. Anselment. Resolution ADOPTED by the following vote: AYES: 9 NOES: 0 ABSTAIN: 0 Sent to the Mayor 5-07-10 Received from the Mayor ___5-21-10 City Clerk _________________________ Approved _X_ Date ___5-10-10 Veto __ Not Endorsed ________ Mayor _____________________ RES. #3 RESOLUTION AUTHORIZING THE MAYOR TO EXECUTE A TERMINATION OF HOUSING DEVELOPMENT GRANT COVENANT FOR 77 ADAMS STREET TROY, NEW YORK ________________________________________________________________________ WHEREAS, on the 6th day of June 1986 Michael Gregware entered into a Grant Agreement with the City of Troy whereby he would renovate the former School 10 into a low income housing project; and WHEREAS, as part of the Grant process, a Housing Development Grant Covenant, requiring that the property be occupied by low income families, was executed by Michael Gregware and recorded against the property which was located at 77 Adams Street; and WHEREAS, an affidavit, attached hereto and made a part hereof as Exhibit “A”, submitted by Michael Gregware states that he abandoned the project and never drew down the Grant funds; and WHEREAS, On July 19, 1990 Michael Gregware transferred the property to New York Affordable Housing Group, Inc. which thereafter conveyed the property to School 10 Associates Limited Partnership on May 29, 1991 which thereafter conveyed the property to TAP, Inc, on December 28, 2000; and WHEREAS, on May 29, 1991, while School 10 Associates Limited Partnership owned 77 Adams St., it entered into a Turnkey Regulatory Agreement with New York State Housing 212 Fund Corporation, which among other things required that the property be occupied by low income families. That Agreement was continued and assumed by TAP, Inc. when it purchased the property from School 10 Associates Limited Partnership on December 28, 2000; and WHEREAS, TAP, Inc. is now seeking a grant from the New York State Housing Fund Corporation and has been advised that the Covenant entered into between Michael Gregware and the City of Troy in 1986 must be terminated. NOW THEREFORE, BE IT RESOLVED that the Mayor is hereby authorized to execute a Termination of Housing Development Grant Covenant contained in a certain deed for 77 Adams Street, Troy, New York between Michael Gregware and the City dated August 5, 1987. Resolution ADOPTED by the following vote: AYES: 9 NOES: 0 ABSTAIN: 0 Troy City Clerk Executive Action Sent to the Mayor 5-07-10 Approved _X_ Date __5-21-10__ Received from the Mayor __5-21-10_____ Veto __ Not Endorsed ________ City Clerk __________________________ Mayor _____________________ RES. # 4 RESOLUTION AUTHORIZING THE MAYOR TO ENTER INTO A LEASE EXTENSION AGREEMENT WITH M&M ENTERPRISES & CATERING. LLC FOR THE FREAR PARK GOLF COURSE RESTAURANT, BACK NINE BUILDING AND USE OF ANNEX BUILDING WHEREAS, on the first day of April 2007, the City of Troy entered into a commercial lease with M&M Enterprises & Catering, LLC for the Frear Park Golf Course Restaurant, back nine building and annex building. WHEREAS, the commercial lease will expire on March 31, 2012. WHEREAS, it is the desire and intent of the City of Troy to enter into a lease extension agreement consistent with the provisions of the Frear Park Concession Lease Extension, March 2009 attached hereto. 213 NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of Toy hereby authorizes the Mayor to execute a lease extension with M&M Enterprises & Catering, LLC for the Frear Park Golf Course Restaurant, back nine building and annex building for rink events. Resolution ADOPTED by the following vote: AYES: NOES: ABSTAIN: 9 0 0 Troy City Clerk Executive Action Sent to the Mayor 5-07-10 Approved _X_ Date __5-21-10__ Received from the Mayor __5-21-10_____ Veto __ Not Endorsed ________ City Clerk __________________________ Mayor _____________________ RES. #5 RESOLUTION AUTHORIZING THE DESIGN AND CONSTRUCTION OF BIKEWAY/WALKWAY FROM THE CITY OF TROY RIVEFRONT BIKEWAY TO THE CITY OF MENANDS CORNING PERSERVE VIA THE ROUTE 378 BRIDGE, CITY OF TROY ON THE STATE HIGHWAY SYSTEM, THE PERFORMANCE AND FUNDING IN THE FIRST INSTANCE 100% OF THE COSTS OF DESIGN AND CONSTRUCTION THEREOF, TO BE REIMBURSED BY THE STATE AND APPROPRIATING FUNDS THEREOF ____________________________________________________________________________ WHEREAS, the State of New York has requested the City of Troy incorporate improvements (the “State Betterment”) to P.I.N. 1754.52, Troy-Menands Bikeway, City of Troy in the County of Rensselaer with State improvements project to adjacent State highways; NOW, THEREFORE, the City of Troy City Council, duly convened does hereby RESOLVE, that the City Council hereby approves the above-subject project inclusive of the State Betterment (collectively “the Project”); and it is hereby further RESOLVED, that the City Council hereby authorizes the City of Troy to pay in the first instance 100% of the federal and non-federal share of the cost of the Project or portions thereof; and it is further RESOLVED, that the sum of $156,000.00 (One Hundred Fifty Six Thousand dollars and no cents) has already been appropriated from City Account #H-11-7180-0200-1411 and made available to cover the Preliminary Engineering Phase of the Project; and it is further RESOLVED, that the additional sum of $26,730.00 (Twenty Six Thousand Seven Hundred Thirty dollars and no cents) is hereby appropriated from City Account #H-11-71800200-1411 and made available to cover the cost of participation in the above Phase of the Project; and it is further RESOLVED, that in the event the full federal and non-federal share costs of the project exceeds the amount appropriated above, the City Council of the City of Troy shall convene as soon as possible to appropriate said excess amount immediately upon the notification by the New York State Department of Transportation thereof, and it is further 214 RESOLVED, that the Mayor of the City of Troy be and is hereby authorized to execute all necessary Agreements, certifications or reimbursement requests on behalf of the City of Troy with the New York State Department of Transportation in connection with the advancement or approval of the Project, and reimbursement of the approved costs associated with the State Betterment, and it is further RESOLVED, that a certified copy of this resolution will be filed with the New York State Commissioner of Transportation by attaching it to any necessary Agreement in connection with the Project, and it is further RESOLVED, this Resolution shall take effect immediately Resolution ADOPTED by the following vote: AYES: NOES: ABSTAIN: 9 0 0 Troy City Clerk Sent to the Mayor 5-07-10 Received from the Mayor _5-21-10______ City Clerk _______________________ Executive Action Approved _X_ Date _5-10-10_ Veto __ Not Endorsed _____ Mayor __________________ SUPPLEMENTAL AGREEMENT #2 Troy – Menands pedestrian Access City of Troy, New York PIN 1754.52 ____________________________________________________________________ This supplemental agreement provides for additional design services not included in the original agreement for Final Design associated with the Troy-Menands Pedestrian Access. The project consists of the construction of a pedestrian access connector from the City of Troy to the Corning Preserve in the City of Menands via the Route 378 bridge over the Hudson River. The project also includes the repair or replacement of balustrades located on the Troy side of the project, as required. The additional tasks included revisions to PS&E documents in accordance with American recovery & Reinvestment Act (ARRA) requirements. These tasks were required to complete Final Design. The project was advertised earlier this year and awarded to Hudson River Construction. Construction cost is estimated to be $1,300,000. Construction shall commence by Summer 2010. RES. #6 RESOLUTION IN SUPPORT OF THE UNITING AMERICAN FAMILIES ACT 215 WHEREAS, A driving goal under U.S. immigration law is family unification and the ability of families and individuals to reside legally in the U.S., engaging fully in our country's rich civil traditions and form of government; and, WHEREAS, The City of Troy celebrates and respects all immigrant groups and all families, including those of same-sex gay and lesbian partners; and, WHEREAS, Current U.S. immigration law discriminates against a U.S. citizen or lawful permanent resident and his or her foreign-born partner by not allowing the sponsorship of the foreign partner for immigration benefits, although an opposite-sex couple would have the right to do so; and, WHEREAS, This form of discrimination and unfair treatment under the law has devastating and life-altering consequences for same-sex partners; and, WHEREAS, The inability to sponsor a same-sex partner leaves the couple with the following limited options: 1. Choose to remain in a costly long-distance international relationship; 2. Choose to live abroad in the foreign partner's country, if allowable; 3. Seek a visa, independent of the partnership, for the foreign-born partner, creating a limited duration of legal stay; 4. Choose to allow the foreign-born partner to remain undocumented or allow a visa to lapse, creating daily uncertainty and fear of deportation; or, 5. Terminate the relationship; and, WHEREAS, The limited legal options for same-sex partners to keep their relationship unified exacts an enormous emotional, financial, and mental toll, disproportionate to opposite-sex couples in bi-national relationships; and, WHEREAS, Beyond the personal challenges to same-sex couples, the City of Troy and the entire country risk a great loss of talent should the foreign partner and/or the U.S. citizen or lawful permanent resident be forced to depart the U.S. to keep the relationship whole in another country; and, WHEREAS, Currently pending in the United States Congress is the Uniting American Families Act (H.R. 1024/S.424), reintroduced on February 12,2009, by Representative Jerrold Nadler (DNY-8) and Senator Patrick Leahy (D-VT). The purpose of this bill is "to amend the Immigration and Nationality Act to eliminate discrimination in the immigration laws by permitting permanent partners of United States citizens and lawful permanent residents to obtain lawful permanent resident status in the same manner as spouses of citizens and lawful permanent residents and to penalize immigration fraud in connection with permanent partnerships"; and, WHEREAS, The Uniting American Families Act would allow same-sex relationships to be treated no differently from opposite sex relationships and all legal requirements of qualifying under the statute and proving the good faith nature of their relationship would remain; and, WHEREAS, The Uniting American Families Act would bring U.S. immigration law in line with the 21 other countries that already recognize same sex partnerships for immigration purposes: Australia, Austria, Belgium, Brazil, Canada, Czech Republic, Denmark, Finland, France, Germany, Iceland, Israel, the Netherlands, New Zealand, Norway, Portugal, South Africa, Spain, Sweden, Switzerland, and the United Kingdom; and, 216 WHEREAS, The City of Troy fully supports the measures of Congress to allow gay and lesbian partners to access immigration benefits in an equal and fair manner, equivalent to opposite sex partners who currently enjoy such legal rights; NOW THEREFORE BE IT RESOLVED that we, the members of Troy City Council, do hereby express our strong support for the passage of the Uniting American Families Act, or other laws that will end discrimination for bi-national same-sex partners under the immigration laws and will allow gay and lesbian residents of the City of Troy fair and equal access to immigration benefits through their permanent partnerships. BE IT FURTHER RESOLVED That suitable copies of this resolution be prepared and sent to the Troy Congressional Delegation; Honorable Nancy Pelosi, Speaker of the United States House of Representatives; Honorable Harry Reid, Leader of the Senate; Honorable Chuck Schumer, United States Senator; Honorable Kirsten Gillibrand, United States Senator; Honorable Scott Murphy, United States Representative; Honorable Paul Tonko, United States Representative, and Honorable Joseph Biden, Vice-President of the United States and President of the United States Senate. Resolution ADOPTED by the following vote: AYES: 9 NOES: 0 ABSTAIN: Troy City Clerk Executive Action Sent to the Mayor 5-07-10 Approved __ Date __________ Received from the Mayor __5/21/10_____ Veto __ Not Endorsed _______ City Clerk __________________________ Mayor ____________________ Mayor did not sign, approve, veto or not endorse. Pursuant to Section C- 56 of the Troy City Charter, every local law, ordinance and resolution adopted by the City Council, including the budget and except for resolutions establishing rules, regulations or other matters pertaining solely to the conduct of the Council’s own procedures or appointments, shall be submitted within five (5) City business days after passage to the Mayor for his approval. Within ten (10) City business days after receipt of the original enactment as passed by the City Council, the Mayor shall take action approving or vetoing the same. The Mayor’s Executive Action on this legislation was a “Not Endorsed” action. Pursuant to Section C-56 (C) of the Troy City Charter, the Mayor shall fail to either approve or veto an enactment, such enactment shall be deemed to have been approved and shall take effect in due course without his endorsement. RES. #7 RESOLUTION AUTHORIZING THE MAYOR TO EXECUTE AN AGREEMENT WITH THE TOWN OF BRUNSWICK FOR THE SUPPLY OF WATER TO THE TOWN AT THE CITY RATE FOR TWENTY (20) YEARS. 217 ______________________________________________________________________________ ________ WHEREAS, the City has been selling water on a wholesale basis to the the Town of Brunswick since 1967 and would like to continue to sell water on a wholesale basis and the Town of Brunswick would like to continue purchasing water; and WHEREAS, the City Administration and the Administration for the Town of Brunswick have negotiated a tentative agreement for the City to supply water to the Town at the City Water Rate for a period of twenty (20) years at the City Water Rate, subject to the approval of the Town Board of Brunswick and the Troy City Council; NOW, THEREFORE, BE IT RESOLVED, that the Mayor is hereby authorized to enter into an agreement on behalf of the City of Troy with the Town of Brunswick for a period of twenty (20) years, the content of said agreement to be substantially in the form of the agreement on file in the office of the Troy City Clerk and the office of the Corporation Counsel and by reference incorporated herein: Resolution ADOPTED by the following vote: AYES: NOES: ABSTAIN: 9 0 0 Troy City Clerk Sent to the Mayor 5-07-10 Received from the Mayor __5/21/10_______ City Clerk _____________________________ Executive Action Approved _X_ Date __5/10/10___ Veto __ Not Endorsed ________ Mayor _____________________ MEMORANDUM IN SUPPORT Title: Resolution authorizing the Mayor to execute a new water supply agreement with the Town of Bruswick for the supply of water to the Town at the City Water Rate for twenty (20) years as the previous forty year agreement expired in November of 2007. Summary of Provisions: This action by the City Council authorizes the Mayor to enter into and execute a new agreement with the Town of Brunswick setting the water rate and conditions for the supply of water to the Town. The water rate charged will be the same rate that City residents pay and the agreement will be for twenty (20) years. The previous agreement was signed in November 1967 and expired in 2007. 218 Present Law: None Purpose: To supplement the annual revenue of the City of Troy Water Fund, the City wholesales surplus water to communities outside Troy at a negotiated rate. The revenue helps the City to control rates within the City and to offset some of the maintenance of the water supply system. Fiscal Impact: The agreement specifies the water rate and conditions to be used to supply water to the Town of Brunswick for the next twenty years. The income received will be revenue into the annual Water Fund budget. COUNCIL COMMITTEE: PUBLIC UTILITIES, FINANCE RES. #7 RESOLUTION AUTHORIZING THE MAYOR TO EXECUTE AN AGREEMENT WITH THE TOWN OF BRUNSWICK FOR THE SUPPLY OF WATER TO THE TOWN AT THE CITY RATE FOR TWENTY (20) YEARS. ______________________________________________________________________________ ________ WHEREAS, the City has been selling water on a wholesale basis to the the Town of Brunswick since 1967 and would like to continue to sell water on a wholesale basis and the Town of Brunswick would like to continue purchasing water; and WHEREAS, the City Administration and the Administration for the Town of Brunswick have negotiated a tentative agreement for the City to supply water to the Town at the City Water Rate for a period of twenty (20) years at the City Water Rate, subject to the approval of the Town Board of Brunswick and the Troy City Council; NOW, THEREFORE, BE IT RESOLVED, that the Mayor is hereby authorized to enter into an agreement on behalf of the City of Troy with the Town of Brunswick for a period of twenty (20) years, the content of said agreement to be substantially in the form of the agreement on file in the office of the Troy City Clerk and the office of the Corporation Counsel and by reference incorporated herein: Approved as to form, May ____ 2010 219 _________________________________________ Charles A. Sarris, Corporation Counsel Resolution ADOPTED by the following vote: AYES: 9 ABSTAIN: NOES: 0 Troy City Clerk Executive Action Sent to the Mayor 5-07-10 Approved __ Date ___________ Received from the Mayor ________________ Veto __ Not Endorsed ________ City Clerk _____________________________ Mayor _____________________ MEMORANDUM IN SUPPORT Title: Resolution authorizing the Mayor to execute a new water supply agreement with the Town of Bruswick for the supply of water to the Town at the City Water Rate for twenty (20) years as the previous forty year agreement expired in November of 2007. Summary of Provisions: This action by the City Council authorizes the Mayor to enter into and execute a new agreement with the Town of Brunswick setting the water rate and conditions for the supply of water to the Town. The water rate charged will be the same rate that City residents pay and the agreement will be for twenty (20) years. The previous agreement was signed in November 1967 and expired in 2007. Present Law: None 220 Purpose: To supplement the annual revenue of the City of Troy Water Fund, the City wholesales surplus water to communities outside Troy at a negotiated rate. The revenue helps the City to control rates within the City and to offset some of the maintenance of the water supply system. Fiscal Impact: The agreement specifies the water rate and conditions to be used to supply water to the Town of Brunswick for the next twenty years. The income received will be revenue into the annual Water Fund budget. COUNCIL COMMITTEE: PUBLIC UTILITIES, FINANCE RES. #7 RESOLUTION AUTHORIZING THE MAYOR TO EXECUTE AN AGREEMENT WITH THE TOWN OF BRUNSWICK FOR THE SUPPLY OF WATER TO THE TOWN AT THE CITY RATE FOR TWENTY (20) YEARS. ______________________________________________________________________________ ________ WHEREAS, the City has been selling water on a wholesale basis to the the Town of Brunswick since 1967 and would like to continue to sell water on a wholesale basis and the Town of Brunswick would like to continue purchasing water; and WHEREAS, the City Administration and the Administration for the Town of Brunswick have negotiated a tentative agreement for the City to supply water to the Town at the City Water Rate for a period of twenty (20) years at the City Water Rate, subject to the approval of the Town Board of Brunswick and the Troy City Council; NOW, THEREFORE, BE IT RESOLVED, that the Mayor is hereby authorized to enter into an agreement on behalf of the City of Troy with the Town of Brunswick for a period of twenty (20) years, the content of said agreement to be substantially in the form of the agreement on file in the office of the Troy City Clerk and the office of the Corporation Counsel and by reference incorporated herein: Approved as to form, May ____ 2010 221 _________________________________________ Charles A. Sarris, Corporation Counsel Resolution ADOPTED by the following vote: AYES: 9 ABSTAIN: NOES: 0 Troy City Clerk Executive Action Sent to the Mayor 5-07-10 Approved __ Date ___________ Received from the Mayor ________________ Veto __ Not Endorsed ________ City Clerk _____________________________ Mayor _____________________ MEMORANDUM IN SUPPORT Title: Resolution authorizing the Mayor to execute a new water supply agreement with the Town of Bruswick for the supply of water to the Town at the City Water Rate for twenty (20) years as the previous forty year agreement expired in November of 2007. Summary of Provisions: This action by the City Council authorizes the Mayor to enter into and execute a new agreement with the Town of Brunswick setting the water rate and conditions for the supply of water to the Town. The water rate charged will be the same rate that City residents pay and the agreement will be for twenty (20) years. The previous agreement was signed in November 1967 and expired in 2007. Present Law: None 222 Purpose: To supplement the annual revenue of the City of Troy Water Fund, the City wholesales surplus water to communities outside Troy at a negotiated rate. The revenue helps the City to control rates within the City and to offset some of the maintenance of the water supply system. Fiscal Impact: The agreement specifies the water rate and conditions to be used to supply water to the Town of Brunswick for the next twenty years. The income received will be revenue into the annual Water Fund budget. COUNCIL COMMITTEE: PUBLIC UTILITIES, FINANCE Revised 4/12/10 AGREEMENT BETWEEN THE CITY OF TROY, NEW YORK AND THE TOWN OF BRUNSWICK FOR WATER SUPPLY day of , 2010 THIS AGREEMENT, made and entered into this (hereinafter called the "Agreement", the "Contract", or the "Agreement and Contract"), by and between the Town of Brunswick (hereinafter called the "Buyer"), and the City of Troy, a municipal corporation within the County of Rensselaer, State of New York, acting by and through its Mayor, with the approval of its City Council (hereafter called "City"). WITNESSETH: WHEREAS, the City Council of Troy has at a regular meeting, by resolution duly passed, voted to sell and supply water under a contract which shall provide the terms and conditions of sale, furnishing of water and payment for same, WHEREAS, the Town of Brunswick, at a regular meeting, by resolution duly passed, voted to purchase water from the City under a contract which shall provide the terms and conditions of sale, furnishing of water and payment for same, WHEREAS, the Buyer and the City have determined to enter into this Agreement, NOW, THEREFORE, in consideration of the mutual promises and covenants herein set forth, and in order to secure the services described below, the parties hereto, each binding itself, its respective representatives, successors, and assigns, do mutually agree as follows: ARTICLE I 223 SHORT TITLE, DEFINITIONS AND INTERPRETATIONS Section 101, Short Title. This Agreement may be referred to as the "Troy - Brunswick, Water Supply Agreement". Section 102, Meanings and Construction. A. Definitions. For all purposes of this Agreement, and any amendments or other changes thereto, the terms shall have the meanings set forth below. 1. "Average Daily Flow" means the total volume of water measured in gallons per billing cycle. 2. "Department" means the Department of Public Utilities of the City of Troy. 3. “City Rate” means the water rate charged to the residents of the City of Troy. 4. “Mayor” means the Mayor of the City of Troy or his designee. 5. "Maximum Daily Flow" means the highest total volume of water measured in gallons at a metering station over any consecutive twenty-four (24) hour period during a calendar year. 6. "Peak Hourly Flow" means the highest total volume of water measured in gallons at a metering station over any consecutive sixty (60) minute period. 7. "Person" means any individual, firm, company, association, society, corporation, political subdivision, fire district, or group. 8. "Planning Utilization" means the capacity in City waterworks that the Buyer desires to use. 9. "Waterworks" means facilities for collection, storage, supply, distribution, treatment, pumping, metering, and transmission of water. B. Construction. This Agreement, except where the context clearly indicates otherwise, shall be construed as follows: 1. Definitions include both singular and plural; 2. Pronouns include both singular and plural and include both genders. ARTICLE II 224 GENERAL PROVISIONS Section 201. Obligations of the Buyer. The Buyer understands and agrees to the following obligations, limitations, and commitments, in return for the City's agreement to permit connection by the Buyer to the City's waterworks. A. Limitation of Rights. Nothing in this Agreement shall be construed as a grant by the City of any exclusive right or privilege. The provision of water by City to Buyer does not grant any rights of ownership in Troy's waterworks. The Buyer shall comply in all respects with the City's Rules and Regulations of water use unless otherwise specified herein. B. Charges and Fees. The Buyer shall make payment of all charges described in this Agreement to the City by the final day of the month of receipts of same, unless expressly provided for otherwise. C. Terms of Delivery. The Buyer may only use or distribute water purchased from the City within the Buyer's corporate limits and may not resell nor supply the water outside of these limits, without the express due consent of the City. The City of Troy supports the sale of water to the Town of Poestenkill and will allow the Town of Brunswick to supply water to the Town of Poestenkill. D. Control of System Leaks and Wasteful Use. The Buyer shall operate and maintain its waterworks connecting to that of the City in accordance with customary practices and with the guidelines set forth below. The Buyer shall do all in its power to minimize the wasteful use of water within its service area. Should the City impose restrictions on water use on its customers (e.g., sprinkling bans) the Buyer shall conform to such restrictions within all areas covered by this contract. The imposition of said restrictions shall be within the sole and exclusive discretion of the City. Nothing in this agreement shall prevent the Buyer from imposing its own restrictions above and beyond those imposed by the City. The Buyer shall ensure that if it installs devices to raise the water pressure it shall also install suitable back flow prevention devices as required by state or federal law and the City. The Buyer shall ensure that pumping of water supplied to the buyer be on a schedule approved by the City and in conformance with all existing cross connection regulations. E. Conformance to Law. The Buyer shall abide by all applicable laws of the United States and the State of New York, together with such Rules and Regulations as the City may promulgate from time to time with regard to its waterworks. F. The Buyer shall agree to compensate the City for an average daily minimum of 400,000 gallons per day per billing cycle during the life of this agreement. G. The Buyer shall provide transmission main and tank capacity as may be available and required for the maintenance and repair of water transmission mains and storage systems of the City. H. The Buyer shall provide to the City emergency transmission main capacity from the old Grafton water supply and Quackenkill diversion dam as may be required to 225 provide an emergency water supply to the City, only those mains presently used for water transmission for emergency purposes and subject to Department of Health approval. I. The Buyer agrees to repair and maintain in good condition at all times the old Grafton Water Supply sixteen (16) inch transmission main that it uses for the supply of water to the residents of the Town of Brunswick. J. The City will supply the Buyer with up to 15 million gallons of water annually without charge for the purpose of flushing the above referenced transmission mains, the amount of water to be used will be reevaluated every 5 years. The Buyer will notify the seller when the mains are to be flushed and the City and Buyer will read all the related master metering devices prior to and after the flushing of the mains. Section 202. Obligations of the City. The City agrees to the following obligations, limitations and commitments, in return for the timely payment by the Buyer of the charges specified in this agreement. A. Contract Service Area. The City shall deliver water to the Town of Brunswick at various mutually agreed upon delivery points, at the existing pressure and quality in those distribution mains, subject to the limitations in Section 201(C) of this Agreement. B. Measurement of Flows. The measurement of water delivered to the Buyer shall be undertaken by the Buyer with the approval of the City. Such flow measurements shall be made by approved metering devices owned by the Buyer at locations determined by the City. All such metering devices shall be inspected at least quarterly. The Buyer will maintain all master meter devices in good condition and provide a report of any maintenance, repair and accuracy of such devices once per year to the City. All Master meters will be tested at the request of the City but not more frequently than every three years, unless readings are found to be inaccurate. All master metering devices will be tested every three years and reports of such testing, including accuracy, will be provided to the City. A copy of the inspection and calibration reports shall be filed with the City's Department of Public Utilities. The cost of such tests shall be paid by the Buyer. Meters that enter the City from the Buyer will be the responsibility of the City. In the master meter chamber or house provided for such meter, or in the vicinity thereof, there shall be maintained a bypass to be used only in the event of meter failure. Bypass valves in chambers, pits or houses shall be closed and sealed and the City will be notified when the bypass valves are operated. Outside, underground bypass valves will be closed and the City will be notified when they are operated. No penalty for operation in emergency if the City is notified within 24 hours. If the seal is broken at anytime, other than authorized by the City, the bill will reflect same in estimated charges and a 5% additional penalty will be assessed on the estimated water used. In the case of missing or inaccurate flow records, due to faulty metering device operation or other circumstances, an estimate of flow shall be made by the City based on past records of a comparable period. The estimates shall be used by the City to 226 establish the Buyer's payments to the City for the period of missing or inaccurate data. C. Records, Accounts and Audits. The City shall keep records and accounts, with complete and correct entries of all its transactions with the Buyer, which, shall at reasonable times, be subject to the inspection of any officer or agent of the buyer. D. The City shall supply Brunswick up to a total of 2 MGD average daily flow for the life of this agreement. The amount used for flushing in Section 201, Item J and water sold or transported to the Town of Poestenkill shall not be included in this average. Section 203. Obligations of Both Parties. The City and the Buyer both agree to the following obligations, limitations, and commitments. A. Assignment of Users. The Buyer's users of its waterworks shall be served by water facilities owned, operated and maintained by the Buyer, unless there is written amendment to this Agreement. B. Responsibility for System Operation and Maintenance. The City assumes no responsibility for the operation and maintenance of water works constructed and owned by the Buyer. The City's waterworks shall be operated and maintained by the City, and the Buyer assumes no responsibility for the operation and maintenance of the same, with the exception of costs set forth in Article III. The City shall not be responsible or liable in any way for the acts of God, or any other act or acts beyond its control which may, in any way, cause an interruption or discontinuance of the service provided for in this Agreement. Section 204. Impairment of Supply. A. Responsibility. The furnishing of water by the City under this Agreement shall not impair the furnishing of water by the City to its customers The Buyer shall receive a proportionate share of total available water from the City’s John P. Buckley Water Treatment Plant in emergencies based upon average annual use of previous year. The City may not be compelled to furnish water to the buyer continuously in the case of accident, or in the event that the water mains or their appurtenance or the source upon which this supply is dependent are impaired. For the purposes of this subsection, the word "accident" shall mean any occurrence occasioned by the consequences of any act of God as hereinafter defined, act of public enemy, wars, blockades, riots, natural disasters, civil disturbances, labor strikes, power failures, explosions, or any cause which is not within the control of the City, or which the City is unable to overcome by the exercise of due diligence. The City shall be the sole judge in all these matters, and its decisions shall be final and binding upon the Buyer. B. Acts of God. Neither the City nor the Buyer shall be liable in damages or otherwise for failure to perform any obligation under this agreement, which failure is occasioned by or in consequence of any act of God, act of public enemy, wars, blockades, insurrections, riots, epidemics, landslides, lightning, earthquakes, fires, storms, floods, washouts, arrests and restraints of rulers and peoples, civil 227 disturbances, labor strikes, power failures, explosions, breakage or accident to machinery or lines of pipe, failure or want of water supply, the binding order of any court or governmental authority which has been resisted in good faith by all reasonable legal means, and any other cause, whether of the kind herein enumerated or otherwise, not within the control of such party and which act, omission or circumstances such party is unable to prevent or overcome by the exercise of due diligence. Such causes or contingencies affecting the performance by either the City or the Buyer, however, shall not relieve such party of liability in the event of its negligence, intentional actions, or in the event of such party's failure to use due diligence to remedy the situation and remove the cause in an adequate manner and with all reasonable dispatch, nor shall causes or contingencies affecting performance relieve the Buyer from its obligations to make payments of amounts then due in respect to water theretofore delivered. C. Indemnification. The Buyer shall exonerate, indemnify, defend and save harmless the City form all claims and demands whether for injuries to persons or loss of life or damage to property occurring within or about any of the connections exclusively supplying water to the buyer; excepting, however, such claims and demands, whether for injuries to persons or loss of life or damages to property, as shall be caused by any act or omission of the City or its agent. The phrase "claims and demands" includes court costs and expenses, legal fees and judgments. Section 205. Correspondence. Correspondence by the Buyer to the City concerning any item in this agreement shall be sent to: City of Troy Department of Public Utilities 25 Water Plant Road Troy, New York 12182 Correspondence by the City to the Buyer concerning any item in this agreement shall be sent to: Town of Brunswick 336 Town Office Road Troy, NY 12180 ARTICLE III PAYMENTS FOR SERVICES Section 301. Buyer shall pay for all water delivered by City based on the metered water use of Buyer as determined pursuant to Section 202(b) multiplied times the metered water rate charged to residential customers in the City of Troy. The buyer shall compensate the City at an average daily minimum rate of 400,000 gallons per day per billing cycle. The Buyer will maintain all master meter devices in good condition and provide a report of any maintenance, repair and accuracy of such devices once per year to the City. All master metering devices will be tested by a certified tester every three years and reports of such 228 testing, including accuracy, will be provided to the City. The master meters will be read by the Buyer once per month and the readings will be provided to the City by the 3rd business day following. The City will be allowed to confirm all readings given by the Buyer, and with a three day notice, the Buyer will accompany and allow the City to confirm the readings at the master meter locations. Section 302. Billing Cycle. The City shall read the meters two (2) times per year, on March 1 and September 1. Billings shall be rendered to Buyer and become due and payable at the Treasurer’s Office of the City within forty five (45) days of the invoice date, but in no case shall they become due prior to April 30 and October 31. The transition from the billing cycles in the previous agreement to the referenced March 1 and September 1 billing cycles shall be done according to a schedule mutually agreed upon by both parties. Section 303. Emergency Use. Should the Buyer require water from the City in flow rates in excess of 2 MGD average daily flow, and such water is available for delivery to the Buyer, the City may, at its sole discretion, supply such water. In such case, the City shall bill the Buyer for all such emergency use at the City rate in Section 301 of this Article. Nothing in this Section shall be construed as giving the Buyer a right to use water at a flow rate or flow rates exceeding 2 MGD average daily flow, nor shall it prohibit the City from assessing additional charges if such emergency use is prolonged in the opinion of the City. The City shall have sole and exclusive discretion as to the determination of the availability of water in excess of 2 MGD average daily flow, and the determination of the length of any prolonged emergency use. (Any water that the Town Of Brunswick transports to the Town of Poestenkill is excluded from the 2 MGD average for the purposes of this section.) Section 304. Water Rate Change. The City agrees to notify the Buyer of proposed changes to the water rates and charges herein within thirty (30) days after City Council approval of such changes The Buyer agrees to be bound by any rate changes and the effective date thereof as established by the Department. Section 305. Delinquent Bills. If water bills or outstanding balances remain unpaid thirty (30) days after the same shall be due, the City shall add thereto a penalty of the prime rate plus one (1) percent.. The prime rate shall further be described as the Wall Street Journal Prime Rate in effect at the date of the billings and as it is established or changed from time to time by the Wall Street Journal. In no event, however, shall the penalty charged be less than 5.0%. If the bills or outstanding balances continue to remain unpaid (60) days after they were due, the City shall add interest charged on the original bill from its due date at the rate of one and one half (1 1/2) percent per month. If the final date for payment before the imposition of a penalty or the charging of interest should fall on a Saturday, Sunday or holiday, any such payment may be made to the City on the next business day following such Saturday, Sunday or legal holiday or may be made by mail provided the postmark on the envelope indicates that the letter was so mailed on such next business day, and the City shall receive such payment without imposing the prime plus one (1) percent penalty or the interest charges. Section 306. Bills Over Ninety (90) Days Due. If the Buyer fails to pay to the City the total amount of its bill for water within ninety (90) days from the due date, the City may consider this Agreement void and initiate arbitration to terminate water service to the Buyer or restrict water flow to the minimum required to maintain an adequate water supply for the purpose of potable use for human consumption, sanitation and fire protection. All other 229 uses of water will be suspended and water restrictions will be put into place by the buyer. The City will have the right to restrict the flow to the Buyer for the purpose of imposing water restrictions. This would not void the Buyer of its responsibility to pay the City for its proportionate share of expenses incurred by the City for expansion and/or upgrading of the City’s waterworks facilities as specified in Section 307. If the Buyer is disputing a bill or a portion of a bill, the Buyer will pay the City the undisputed portion of the bill and the funds for the disputed portion of the bill shall be placed in a designated escrow account pending the resolution of the dispute by arbitration per Section 403. Both parties shall participate in arbitration within 180 days of notice of the disputed bill. Should the Buyer not participate in arbitration within the 180 days, the City reserves the right to terminate the Buyers water service. If the City does not participate within the 180 days of notice of the disputed bill, an extension of 60 days will apply to any termination of services until the city participates in arbitration. If arbitration does not occur within 180 days from the due date, the City reserves the right to terminate the Buyers water service. Section 307. Expansion and /or Upgrading of City’s Waterworks. Should the City expand the capacity of any of its waterworks solely to accommodate a municipality or user other than the Buyer, the Buyer shall not be liable for the costs incurred by the City’s waterworks for said expansion. If the Buyer requests additional flows above the 2 MGD average daily flow the City will provide an estimate of such capital costs for the Buyers consideration. Should the City provide additional capacity for use by the Buyer in any of the City’s waterworks (i.e., capacity in excess of the referenced amounts), the Buyer shall make payments to the City to offset the costs incurred by the City. The City shall be the sole and final judge as to all improvements, additions or expansions to the waterworks. ARTICLE IV MISCELLANEOUS PROVISIONS Section 401. Status of Former Agreements. This Agreement supersedes all conflicting provisions of former or currently existing contracts for water services between the City and the Buyer, and together with any provisions of currently existing contracts not inconsistent with this Agreement, constitutes the entire contract between the City and The Buyer: provided, however, that the City retains full rights and authority to enforce the provisions of any preceding or currently existing agreement as they pertain to any outstanding indebtedness to the City. This Section, Section 401, does not supersede the Agreements of November 27, 1967 regarding the sale of water transmission mains to Brunswick or the sale of the Vanderheyden and Brunswick Reservoirs to the Town. Nor does it supersede any agreement between the City and the Town regarding sewage and sewers. Section 402. Incurring of Debt. Nothing in this Agreement shall be construed as to prevent either party thereto from incurring any debt deemed necessary to ensure the sufficiency of fund required to construct, maintain and operate their respective waterworks. Section 403. Arbitration. In case any disagreement or difference shall arise in respect of items herein designated to be submitted for arbitration, such disagreement or difference 230 shall be submitted to the arbitrating of three (3) persons who shall not be residents, taxpayers or employees of either of the parties hereto: one of such persons shall be appointed by each party and a third shall be appointed by the two so appointed. If either party shall refuse or neglect to appoint an arbitrator within Thirty (30) days after the other party shall have appointed an arbitrator and served written notice thereof upon the other party requiring appointment of an arbitrator, then the arbitrator so first appointed shall have the power to arbitrate the matters of this agreement or difference as if he were the arbitrator appointed by both parties hereto for that purpose, and his award or determination in writing shall be final, provided, however, that such award be made within thirty (30) days after such refusal or neglect of the other party to appoint an arbitrator. In case there are three arbitrators selected as above, an award in writing signed by any two of them shall be final, providing such award shall be made within thirty (30) days after the reference to said arbitrators unless such time shall be extended by agreement of the parties hereto. The provisions of Article 75 of the Civil Practice Laws and Rules of the State of New York or any law thereafter enacted relating to the arbitration of differences shall be controlling with respect to any procedure or any submission to the Courts of the State of New York for determination. Section 404. Exercise of Judgment. Where the City is directly or implicitly authorized to exercise its judgment under the provisions of this Agreement, its judgment shall not be questioned unless clearly unreasonable. Section 405. Status of Legal Representatives, Successors and Assigns. Each one of the benefits and burdens of this Agreement shall inure to and be binding upon the respective legal representatives, successors, and assigns of the parties hereto. Section 406. Amendment. The provisions, terms and conditions of this Agreement shall be modified only by written amendments to this Agreement, executed with the same formality as this Agreement. Section 407. Third Parties. The City assumes no responsibility for any facility not included in its waterworks and in the event that a facility of a third party shall be involved in the furnishing of service to, or the receipt of service from the Buyer, the Buyer agrees to look solely to such third party for any such services. The Buyer assumes sole responsibility for compliance with this Agreement by those users of its waterworks whose water is delivered from the City waterworks. The City shall deal directly with the Buyer which shall, in turn, make certain that all users and customers comply with terms of this Agreement and with any rules and regulations of the Board of the City, as applicable. Section 408. Assignment. No assignment by the Buyer of its rights or duties under this Agreement shall be binding on the City, unless the City consents to such an assignment in writing with the same formality as employed in the execution of this Agreement. Section 409. Waiver. Failure of either party to hereto exercise any right hereunder shall not be deemed a waiver of such party to exercise at some future time said right or rights or another right may have hereunder. 231 Section 410. Effective Date and Duration. This Agreement shall be effective as of the date first above written. This Agreement shall be in full force and effect and shall be binding on the Buyer and the City for twenty (20) years from the effective date, as long as the Buyer shall not be in default of its obligations here under. The Buyer shall have no claim against the City for any previous payment or capital outlays. If mutually agreeable between both parties, this Agreement may be extended for two additional ten (10) year terms. Any modifications, amendments or changes to this Agreement at those times must be acceptable to both parties. Section 411. Severability. If any clause or provision of this Agreement or application thereof shall be held unlawful or invalid, no other clause or provision of this Agreement or its application shall be affected, and this Agreement shall be construed and enforced as if such unlawful or invalid clause or provision had not been contained herein. IN WITNESS WHEREOF, the City of Troy, acting through the Mayor, with the approval of the City Council, and the Town of Brunswick, acting through the Supervisor, with the approval of the Town Board, have executed this agreement on the day and year first above written. Buyer Approved: City of Troy Approved: ___________________________ _____________________________ Approved as to Form: Approved as to Form: By: ________________________ By: ___________________________ STATE OF NEW YORK ) COUNTY OF Rensselaer ) )S.S: I, ____________________________, Clerk of the ______________ New York, do hereby certify that I have compared the foregoing copy of the resolution with the original resolution of file in my office and that the same is a true and correct transcript of said original resolution and of the whole thereof as duly adopted by said __________________________ at a meeting duly called and held at _____________________________ on _________________ by the required necessary vote of the members to approved the resolution. WITNESS, my hand and the official seal of the _____________________________ of ________________________, New York, the _______ day of ________________, 2010. __________________________ 232 Clerk RES. #8 PROCLAMATION National Association of Letter Carrier's "Stamp Out Hunger" food drive Stamp Out Hunger Food Drive Day – May 8, 2010 WHEREAS, The National Association of Letter Carriers (NALC) in conjunction with the United States Postal Service (USPS) is sponsoring the 18th Annual NALC National Food Drive to "Stamp Out Hunger" on Saturday, May 8, 2010; and WHEREAS, the Troy City Council is desirous in highlight the National Food Drive, by encouraging people to donate non-perishable food to the largest oneday food drive in the nation; and WHEREAS, a recent survey found that 90 percent of food banks are reporting a surge in demand being driven by first-time users and 56 percent of food banks reported seeing more children as clients; and WHEREAS, as the Troy City Council encourages postal carriers and the communities where they work to cooperate on this, because postal workers have "the capacity to reach every city and town, in every neighborhood and on every street" to help families in he e d throughout the nation; and WHEREAS, the nation's 230,000 letter carriers in more than 10,000 communities will collect food donations in a drive for local food banks, pantries and shelters, and attempting to break the two billion pound mark in terms of total food collected during the time "Stamp Out Hunger' has been active. NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of Troy, NY hereby proclaims Saturday, May 8, 2010 as National Association of Letter Carriers "Stamp Out Hunger" Food Drive Day in the City of Troy; and BE IT FURTHER RESOLVED, that we invite all Troy residents to leave nonperishable food at their mailboxes on Saturday, May 8, 2010, to support our local letter carriers in their food drive to help alleviate hunger in our community and throughout the nation. Signed this 6th day of May 2010. Resolution ADOPTED by the following vote: AYES: 9 NOES: 0 ABSTAIN: 0 Troy City Clerk Sent to the Mayor 5-07-10 Received from the Mayor __5-21-10___ Executive Action Approved _X_ Date __5-10-10__ Veto __ Not Endorsed ___ 233 City Clerk Mayor Adjourned: 8:44 p.m. 234