City, merchants waiting on association's attorney to finalize settlement agreement

City officials are wondering what's up with the settlement they reached with attorneys for the City Centre Mall Merchants Association. They thought the matter would be resolved by now, but apparently, the attorneys for the merchants haven't even shown the membership the final draft of the settlement agreement.

While City Manager Jason Molino said he has no reason to believe the settlement won't eventually be presented to the merchants and the settlement will be approved, the delay just means the city can't work on structural deficiencies in the concourse.  

"I would like to think that there is nothing that suggests the deal is going to fall apart," Molino said. "The issue is how do we get to the finishing line and get to the finishing line as expeditiously as possible, which is in the best interest of everyone in the community, the best interest of the property owners in here in the mall, and then we can start to talk about what we can do to trigger new growth and new investment in this concourse and in this mall. That's the most important thing to keep our eye on."

Mall Manager Madeline Bialkowski, who scheduled her retirement for April 1 to coincide with the settlement of the mall merchant's lawsuit being in place, said that merchants are waiting for a final draft of the settlement agreement from the attorneys.

Hugh Carlin is the attorney representing the City Centre Mall Merchants Association. 

Yesterday, we asked Carlin when the merchants would approve the settlement.

"I can't say yet," Carlin said. "Hopefully in the near future. There are a few more details we're working on."

Asked what those details might be since his side had already agreed to a settlement, Carlin said, "I can't comment." Pushed for clarification, he repeated, "I can't comment."

According to documents obtained by The Batavian through a Freedom of Information Law request, the merchants have paid their attorneys $212,056 since starting the litigation against the city in 2009.

In February of 2015, The Batavian reported that the association had spent $103,317 on the lawsuit. The tab has gone up another $108,738 according to documents obtained through the FOIL request.

The city, through the same period, has spent $168,070 on attorney fees, with $63,872 being added since February 2015.

"The city has done everything it can prior to the lawsuit (to reach an agreement), during the lawsuit and now, having entered into terms we've agreed to to end the lawsuit in a way that is expedient and in the best interest of everyone," Molino said. "Now, we're still having challenges with the mall's legal counsel."

The lack of an agreement is delaying Bialkowski's retirement. She's agreed to stay on until the settlement is finalized, but she and her friends are still going ahead with a retirement party at Ken's Pits on March 30 because she anticipates she will be retired not long after that, she said.

The association and the city had a long-simmering dispute over who is responsible for repair and maintenance of the mall concourse. According to a 1987 settlement, the merchants' association was supposed to take control of the city-owned concourse on April 1, 2000.

The settlement agreement the city and the attorneys for merchants agreed to during the first week of February puts the burden back on the city to repair and maintain the concourse. That's a task Molino said the city is eager to take on because that's the only way all of the necessary repairs will take place so the mall becomes once again a viable business investment.

The City Council approved the settlement Feb. 27.  Each owner of properties in the mall must individually sign off on the agreement or submit a motion to the court to show cause for not agreeing to the settlement.

The city is ready to get started, he said, as soon as the merchants approve the agreement.

"The city is in position and we're ready to move," Molino said. "We're ready to take this 17-acre area and take on the responsibility to move it into a better position so that in the future it triggers investment."

There's a lot of work to be done but that doesn't apparently include mitigating mold.

Contrary to reports in other media outlets, there is no evidence of mold in the mall, Molino said.  

The speculation for mold in the mall apparently comes from an interview Ron Viele, a local contractor, gave to a reporter. We placed calls yesterday afternoon and early this afternoon seeking clarification but Viele has not returned our calls.

We did speak to Paul Viele, Ron's son and a member of the City Council. He said he didn't participate in the interview with his father but did say "it's possible" there is mold in the mall, especially given the leaks and moisture in the mall.

He said the city should hire a professional to evaluate whether there is mold.

"We don't do that kind of work," Viele said. "We're contractors."

Until the merchants' attorneys move forward with the settlement, it would be up to the mall association to hire a contractor to deal with any potential mold, Molino said.

However, he said, as part of the settlement process, a third-party consultant was brought in to evaluate the mall concourse. Molino said he can't release that report, even as part of a FOIL request, because it's part of the technically ongoing litigation, but that consultant found no evidence of mold, he said.

As for whether it's possible, of course, it's possible, Molino said. It's also possible, he said, that if you have forced-air heating in your home that you have mold in your home. In fact, if you haven't had your ducts cleaned in a long time, it's likely. That doesn't mean the mold is harmful. It depends on the type of mold and a person's sensitivity to it.  It would take a professional, not just somebody looking up at the ceiling, to determine if mold is present. (Here's what the CDC says about the health risks of mold.)