The legislature’s Public Service Committee on Monday approved a resolution that forges an agreement with the town to install water transmission mains and a water storage tank as part of the formation of Water District No. 6.

The key component of the contract is that the county’s portion of the $11.2 million project -- $5,424,000 – will be paid by using some of the American Rescue Plan Act funding it received from the federal government.

County Engineer Tim Hens told the committee that the county will make two deposits into an escrow account that will be used by the Town of Alexander to pay the contractor as needed during construction. The county will monitor the work being performed and certify all draw requests by the town.

"The work will cover the northwest corner of the town -- every public road west of Route 98 and north of Route 20," Hens said. "We are running new water lines to the town, upsizing the mains to 12 inch for transmission and erecting a tower on Halstead Road to feed back into Batavia."

The agreement took a bit longer than usual to make it to the committee as attorneys for both parties had to ensure that the language complied with ARPA requirements.

As previously reported on The Batavian, the county will save $3.3 million in interest by utilizing ARPA money instead of having to bond the expense.

Two other resolutions pertaining to the Countywide Water Project were approved by the PSC, and forwarded to the full legislature:

• Change orders to a Phase 2 project with the City of Batavia wellfield – one with Frey Well Drilling of Alden to deduct $10,000 from the contracted amount and another with Villager Construction of Fairport to add $27,000 to the contracted amount.

Frey’s work involved Well C, while Villager is being paid for the additional work of cleaning and rehabilitating Well A.

The change to the Frey contract lowers the total amount to $137,900, while the change to the Villager agreement raises the amount to $421,000 and extends the contract time to complete the Well A improvement to this fall.

• A budget amendment increasing the Water Fund by $79,000 to cover anticipated expenses related to governmental relations contracts at both the federal and state levels through the end of this year.

In other action, the committee:

• Approved a request to include a 53-acre parcel off Harlow Road in the Town of Darien to Agricultural District No. 1 and set a public hearing on the matter for 5:30 p.m. on May 25 at the Old Courthouse. County Planning Director Felipe Oltramari advised committee members that the land does qualify under the guidelines of the New York State Agriculture and Markets Law.

• Approved the appointment of Batavia business owner Derek Geib to the Genesee County Planning Board to replace Richard Richmond II, who recently filled a vacant seat on the Batavia City Council. County planning board members serve on a volunteer basis.

At its meeting scheduled for 5:30 p.m. Wednesday at the Old Courthouse, the county legislature will consider a resolution to contract with Sheridan Hohman & Associates of Albany to provide strategic counsel and governmental relation assistance at the state level for the remainder of the year at a cost of $2,000 per month.

County Manager Matt Landers said the expenses, totaling $18,000, will be covered by the Water Fund.

“We believe the assistance of a lobbyist that will focus on relationships with the state (agencies and leaders) will be helpful,” Landers said. “This firm has worked with us in the past through NYSAC (New York State Association of Counties).”

Landers and County Engineer Tim Hens, at a Feb. 23 meeting with Congressman Chris Jacobs, reported that it will cost around $85 million for Phase 3, which would bring another six million gallons of water per day into the county and eliminate the need for the aging City of Batavia water plant.

The county already has spent $20 million for Phase 1 and $23 million for Phase 2. The price tag of a fourth phase, down the road, is estimated at $50 to $60 million.

At that time, Legislature Chair Rochelle Stein asked Jacobs and his staff to explore federal funding options, noting, “We’re at a point now where we can’t manage it on our own.”

In a related development, the legislature also will consider rescinding an intermunicipal agreement with the Town of Alexander regarding improvements of that community’s Water District No. 6.

Apparently, Hens and County Compliance Officer Pamela LaGrou agree that changes need to be made in the pact that calls upon the county to use part of the American Rescue Plan Act funding it has received in order to comply with ARPA regulations.

Hens said a new resolution will be drafted and presented to the Public Service Committee on April 18. The county will save $3.3 million in interest on this Phase 3 project by utilizing ARPA money.

The project focuses on increasing storage capacity, with construction starting next spring, Hens added.

Other resolutions of note on Wednesday’s legislative agenda:

• Per an unfunded mandate from New York State Board of Elections, the purchase of a $40,000 ballot scanner to tabulate scannable absentee ballots and merge those results with early voting and election day results, as well as spending $2,500 for staff training. Deputy Republican Commissioner Melissa Gaebler said the equipment has to be operational by the June primary.

• A request from the Rotary Club of Batavia to conduct its Fly-In Breakfast at June 19 at the Genesee County Airport on Saile Drive. The service organization would be using the facility from June 17-21 for preparation and clean-up.

• A public hearing for 5:30 p.m. April 27 at the Old Courthouse on the county’s submission of a Community Development Block Grant application from the state Office of Community Renewal to assist La Fermiere Inc. in the development of a yogurt and dessert production facility at the Genesee Valley Agri-Business Park on East Main Street Road.

The Darien Town Board, in an “eleventh hour” meeting Tuesday night, unanimously passed an amended and restated water supply agreement with Genesee County that includes a stipulation that in seven years the county legislature will petition the Monroe County Water Authority to equalize water rates for all retail customers in the county.

Previously, the board had voted against opting in to the county’s revised water supply proposal, reasoning that the town (along with the Town of Pembroke and Village of Corfu) had been paying more for water than other municipalities all along and shouldn't have to face additional surcharges.

But, last night, after continued talks with County Manager Matt Landers – and receiving assurances that the county will move toward a unified water rate -- the board reconsidered, and joined the county’s other towns and villages by passing the resolution following a 35-minute discussion at the town hall.

The 5-0 vote came a day before the county’s deadline for municipalities to decide whether or not to opt in. The full legislature is expected to vote on the unified water supply agreement at a meeting this afternoon at the Old County Courthouse.

Darien Supervisor Steve Ferry Jr. said the agreement “is not pretty” and called it “a fix of something that we didn’t create.”

“They (legislature) created the problem and it seems like we’re the ones having to fix it,” he said.

Ferry and the town’s council members -- Michael Grant, David Krzemien, Timothy Benton and Michael Fix – said they didn’t agree with the county tying water supply agreements with sales tax distribution.

Several weeks ago, the county came up with an idea to share $10 million annually for 38 years in sales tax revenue with its towns and villages as long as all of the municipalities opted in to revised water supply agreements.

That looks as though that will happen now that Darien has opted in. The town stands to receive $970,942 annually for the 38 years in sales tax distribution.

Ferry said his board held out until it received something in writing that the county would take steps to ensure a unified, equalized water rate.

“It is not a strongly worded agreement, but it is an irrevocable resolution,” he said. “The other thing is that it kind of holds the legislature’s feet to the fire, although not as much as I wanted. But it does give us something to shoot for.”

He said the agreement is a good thing for the town, but for those in the five water districts, “they’re going to feel a 60-cent per thousand (gallons) hit.”

The Darien board was able to get the county to add a paragraph to the water supply agreement that states the following:

Notwithstanding any other provisions herein, at seven (7) years after the date of full execution of this Amended and Restated Agreement, the County Legislature shall adopt and submit to the Monroe County Water Authority an irrevocable resolution urging and recommending that the Authority equalize the water rates for all retail customers in Genesee County. Upon failure of the County to timely comply with this requirement, the surcharge rate shall automatically revert to the rate as per Paragraph 6 herein (60 cents) with no additional action needed by either party; provided further that this reversion to 60 cents for each one thousand gallons of water used shall not be applied retroactively.

Krzemien acknowledged that the revision was “a step in the right direction,” but wondered about the status of the town’s current agreement. Ferry said once they signed the new one, the other would be nullified.

Grant said he had problems with the word “timely” in the added paragraph.

“What does timely mean?” he asked. “Timely doesn’t mean (anything) to me. What is going to bind the legislature to follow through after seven years?”

Ferry said the county plans to shut down the City of Batavia water plant, which would pave the way for all municipalities to get their water from MCWA and allow the legislature to “take in the entire county and equalize the rate.”

“It’s not going to happen for six years; 2027 is the projected date of that happening,” he said, adding that equalization can’t happen unless the city and the Town of Batavia become retail customers like the other towns and villages.

Contacted this morning, Landers said the agreement with Darien is the same as every other contract, with the “minor change that will give better assurances to the Town of Darien that the county is going to follow through on what are plan ultimately is – an equalized retail MCWA rate throughout Genesee County.”

“That is something that we have long talked about what the future holds,” he said.

Landers said that in seven years, the county will request MCWA to create an equalized, countywide retail rate.

“Right now, there are different retail rates. Customers on the Western side of the county – Darien, Corfu, Pembroke – pay a higher retail rate because their water comes from Erie County. That’s the only difference there is in this agreement,” he explained.

He said he will be sending a letter out to the Towns of Darien and Pembroke and Village of Corfu.

“If the legislature passes this agreement, I am going to send out a letter, giving them 120 days’ notice as is required in the agreement,” he said. “We can’t raise the rate to $1.20 effective tomorrow. We have to give 120 days’ notification. The rate won’t take effect – that $1.20 – until after 120 days have passed.

“We did the same thing with the other agreements.  If we ever raise the rate above $1.20, we have to give 120 days’ notification for that as well.”

Landers said the county could act toward equalizing the water rate now, but it would be best to wait until city residents enter the retail customer pool.

“The shutting of the city plant and the addition of city retail customers into the pool make the overall rate go down, but it’s not a requirement. Technically speaking, we could go retail now without city customers included because they wouldn’t and they’re not retail customers of MCWA. You would just have the outer towns,” he said. “But it makes sense to equalize once you have more customers to bring the rate down. Once the city is a retail customer, that’s the bigger trigger -- whether the plant is closed or not.”

He said the plan is for that to happen within seven years as the county continues to bring in more water as part of Phase 3 of its Countywide Water Supply Project.

In the end, Landers said he appreciates the efforts of the municipalities on the West side of the county.

“I know that we didn’t always agree, but I appreciate the efforts that Steve and his board went through to consider this – along with the Town of Pembroke and Village of Corfu,” he said. “I’m glad we came to this resolution and, in the end, I think it’s better for everyone. I’m going to remain optimistic and positive.”

Photo: The Darien Town Board at its meeting last night, clockwise from left, Steve Ferry Jr., Deputy Clerk Gwen Yoder, David Krzemien, Timothy Benton, Michael Fix and Michael Grant. Photo by Mike Pettinella.

The Pembroke Town Board on Thursday night voted, 5-0, to sign an amended water supply agreement with Genesee County, leaving the Town of Darien as the lone municipality not to opt in to a contract that would set the stage for $10 million in sales tax distribution from the county to its towns and villages over the next 38 years.

“We felt that it was more important to secure sales tax funding than to hold out on the water agreement,” Pembroke Town Supervisor Thomas Schneider Jr. said. “In good faith, we believed that it was best to mend some fences with the county.”

In a previous story on The Batavian, Schneider indicated there were some hard feelings over the way water agreements were handled in the past, but the current board is willing to give county leaders the benefit of the doubt – believing that the legislature will attain its goal of equalizing the water surcharge.

Schneider also said he talked to County Manager Matt Landers about the potential of “bumping up” the guaranteed sales tax money to be shared with the municipalities in light of the Village of Corfu (at the end of July) and Town of Pembroke opting in.

PEMBROKE MAKES COUNTEROFFER

“Hopefully, we are thinking that the $7 million in sales tax distribution could go to maybe eight or eight and a half million – based on having Corfu and Pembroke on board.”

Genesee County’s offer to distribute $10 million in straight sales tax revenue is contingent upon universal buy-in from its towns and villages.

Without that universal buy-in, the proposal is to distribute $7 million in annual sales tax revenue and an additional $3 million in other revenue on a periodic basis over the next 38 years.

Municipalities not opting in would receive less in revenue distribution than expected to allow for the equalization of water surcharge revenue.

Legislature Chair Rochelle Stein was asked if lawmakers would consider Schneider’s proposal to increase the guaranteed sales tax distribution.

Choosing her words carefully, she replied, “Here’s what I’m going to say: Let us do our work.”

“We have not met and we won’t until Monday. So, there’s a process that we follow and let us do our work. But, certainly, that suggestion is taken and welcomed.”

FIXING UNBALANCED TAX RATES

Currently, the county’s revenue sharing process has created a situation, per state law, where towns with villages inside them have to keep two separate books and have two separate tax rates – an A fund for townwide sales tax that affects everyone and a B fund for sales tax that only affects the services of taxpayers outside the village.

Stein said the legislature’s focus has been “to be able to direct that revenue sharing into the B funds of those towns and villages; that is our focus for this entire process. And, if we can find a way to get there together, that’s our goal.”

She previously explained that the $10 million figure that the county is committed to putting into the sales tax agreement would fix the unbalanced A and B tax rate.

When asked if she thought the Darien Town Board would change is mind and opt in, Stein said she that if it did reconsider, it would need to be mindful that the county has a timetable to adhere to “that is significant because our calendar has already started.”

The legislature’s Ways & Means Committee is expected to address the situation at its meeting this Monday, with the full legislature scheduled to vote on a distribution amount on Aug. 25.

“Plus, the City of Batavia has to do this at their meetings in September and the (New York State) Office of Comptroller needs 60 to 90 days and we already want to be able to distribute our third quarter payments (in October) as sales tax,” Stein advised.

“Time is not our friend right now,” she said. “But for those six towns that have the B funds or that have villages in their towns, it is truly meaningful for their more rural taxpayers to rebalance that property tax imbalance that is occurring right now for them.”

PURSUING WATER RATE EQUALIZATION

Landers said he was “happy” to learn that Pembroke passed the resolution.

“I know that they will be hopeful that the county as a whole, not just Genesee County but the towns, will remember this 5-0 vote when it comes time for the equalization of the retail water rate charged by the Monroe County Water Authority,” he said.

“The county can recommend an equalized retail rate and, again, I’m certain that Pembroke is hoping for a spirit of cooperation seeing that they agreed to sign this agreement because they know it is best for the county as a whole.  It is in everyone’s best interest to have an equalized rate because it allows for the free flow of water a little easier between the center and western parts of the county.”

Landers explained that the original agreements with towns and villages dating back to the early 2000s each had “little nuances in them,” with different considerations.

“When the county took over individual water systems, the county water fund would make some compensation sometimes for that,” he said. “For example, we paid off some of the debt of the Corfu water plant for that village. All of the amended water supply agreements that the county have undertaken over the last three or four years have been uniform; we wanted to make sure that they’re all the same.”

The new agreements allow for the county, with proper notification and justification, to increase the surcharge above 60 cents (per 1,000 gallons). The original agreements were frozen at 60 cents but since then, the later agreements raised it to $1.20 to pay for Phase 2 of the Countywide Water Supply Project.

CLEANING UP THE LANGUAGE

The county manager said one of the sticking points was the county removing erroneous language in the initial agreements that guaranteed supplying water to the municipalities.

“It’s erroneous in the sense that the Monroe County Water Authority, in our agreement with them, can’t guarantee us water; there are things that can happen,” he said. “It is difficult for us to guarantee something that’s not guaranteed to us.”

He said that changes had to be made “because we need water to pay for water.”

“When we go to Phase 3, 4, 5, 6 and 7 (of the Countywide Water Supply Project), if there needs to be an increase (in the surcharge) to pay for the debt service, there needs to be a way to pay for it,” he said, adding that 20- to 30-year cash flow projections – including the retirement of some debt service -- indicate that the surcharge should not increase that much, if at all.

Landers said that he continues to speak to Darien Town Supervisor Steve Ferry Jr. about his board’s decision.

“If Darien passed a resolution next week and they signed the water agreement, it is possible that the amount in the resolution on the floor of the legislature on August 25^th could be amended to be increased to $10 million,” he said. “I still have hope that we can find a path forward so that we can share the full $10 million in sales tax, and have everyone on the same water supply agreement.”

Asked if Ferry has sought concessions from the county, understanding that Darien has been paying more for water than other towns and villages, Landers would not go there.

“I don’t want to get into the subject of proposals back and forth,” he said. “I want all of that to be discussed between him and I, and our legislature and his board.”

Previously: Darien Town Board votes to not accept county's updated water agreement offer; Corfu signs on; Pembroke TBD.

Previously: Ways & Means passes measures rescinding revenue distribution payments, accepting HCA with Plug Power.

Town of Darien? Out.

Town of Pembroke? To be determined.

That’s the status of three municipalities on the western side of Genesee in the county’s quest to achieve updated water supply agreements from all towns and villages leading up to a proposed $10 million annual sales tax distribution plan.

Corfu, Darien and Pembroke had been holding out on signing the amended water agreements since early July when the Genesee County Legislature introduced its potential solution to revenue distribution by linking it to a reworking of current water supply pacts.

On July 28^th, Corfu trustees voted to accept the agreement.

Last week, Darien Town council members voted, 5-0, to not accept the county’s offer.

And this coming Thursday (Aug. 12), the Pembroke Town Board is scheduled to vote on the issue.

A $10 MILLION OFFER

As previously reported, the county needs universal buy-in to the updated water agreements to set a plan in motion to distribute $10 million in sales tax revenue to municipalities over the next 38 years.

Without all towns and villages opting in, the county is proposing to distribute $7 million in annual sales tax revenue and another $3 million in other revenue on a periodic basis over the next 38 years. Municipalities not opting in would receive less in revenue distribution than expected to allow for the equalization of water surcharge revenue.

Contacted Sunday, County Manager Matt Landers explained that money would have to be withheld from communities that don’t sign the agreement to ensure that the water fund is made whole.

“In those cases, it will be the entire community paying for it and not just the water users,” he said. “For the Town of Darien, we’ll make sure water consumption is covered at $1.20 (per 1,000 gallons) if it can’t be covered by a surcharge because there’s a valid contract in place only charging them 60 cents. So, we’ll just have to equalize that through lower revenue distribution payments.”

Landers said he respects Darien’s decision, but welcomes further discussion with Darien Supervisor Steve Ferry Jr. and the board.

“We would love to have a $10 million sales tax sharing agreement in place for the next 38 years to provide that guaranteed revenue source to all towns and villages, but Darien is going to do what it feels is best,” he said. “I understand he’s (Ferry) doing what he believes is in the best interests of his constituents, which a town supervisor would do. I happen to disagree.”

DARIEN BOARD NOT CONVINCED

Ferry said his board rejected the county’s idea for several reasons.

“We have a water agreement in place,” he said. “This is the same resolution that they offered in 2018 and the board, then, rejected it. It was a totally different board but the outcome was the same, a vote of five to nothing.”

He said Darien officials are looking for a master plan to see “what was going to happen in the future” and also for movement toward an equitable, unified water rate in the county.

“We felt that our positioning was that if we signed it, they would still ignore us. So, we did not sign it because it is the only bargaining position that we have,” he advised.

Ferry said the county “ditched the sales tax agreement in 2018 with the towns and village in favor of a contract with the City of Batavia, and now they want us to try and fix it.”

“The two (water and sales tax) shouldn’t even be connected,” he said. “Why is it that we’re tying them together now?”

FERRY: ‘GIVE US A BONE’

When it was mentioned that the Town of Darien would receive less in revenue than entitled to based on assessed valuation, Ferry said, “Possibly, but then again, possibly, I call the AG’s (New York State Attorney General) office.”

“I’m saying, ‘Work with us here. Give us a bone.’ And they did nothing. They would not even produce a letter stating that they would try to equalize the rate within X amount of years – because I think they don’t think they can.”

Ferry said the Town of Darien pays $1.12 more per 1,000 gallons of water than other communities.

“If they make the claim that water pays for water, we on the western side of the county have been paying more for our water to get water out here,” he said. “If the east and the central part need water, why not make them pay more?

“We represent our constituents and if we were to sign this contract … in addition to the old one, and they get charged 60 cents more per thousand (gallons) right off the bat, what else do they get out of that contract? We can’t enter into an agreement that is worse than the one we have without something as an offset.”

Landers said by opting in to updated water agreements, municipalities are ensuring that their water users are paying their fair share of the cost for water.

“One way or the other, Darien will still pay the additional costs – it’s a matter if they want to pay through the entire town or through the water users,” he said. “I still hope and there’s still time since I’ll be back in the office tomorrow and will reach out to Steven and see if there’s anything else that I can communicate.”

LANDERS OPEN TO MORE TALK

He said that he and Legislature Chair Rochelle Stein presented the plan at meetings of the Village of Corfu and Town of Pembroke boards, and indicated that Ferry attended the Corfu meeting as well while another Darien council member was at the Pembroke meeting.

Landers also said he would like to address the entire Town of Darien board – something that hasn’t happened yet – as the deadline for towns and villages to make their intentions known is this Friday.

“I’d be more than willing to have further talks with Steve,” he said. “I’m 100 percent available to Steve and the Darien Town Board to talk some more, and until the 13^th comes and goes, there is still an opportunity.”

Calling it a “complex issue,” Landers said the original water agreement has limitations to it as it has a fixed 60-cent surcharge (per 1,000 gallons).

“Genesee County is responsible for bringing an adequate supply of water into the county, and we have incurred significant monies beyond Phase 1 into Phase 2, and now going into Phase 3. If we truly want water paying for water, we can’t live by water supply agreements that are fixed at 60 cents for time in eternity,” he said.

“When we raise the surcharge, we have to raise it across the board for all users because it’s our responsibility to bring supply into the entire county. I realize that Darien and Pembroke don’t see the benefit of paying that extra 60 cents because they received their benefit from Phase 1. But with Phase 3, there will be future enhancements that will benefit them.”

Landers said he was not involved in the first round of water supply agreements with municipalities … and looking back, “the 60 cents didn’t work and that is one of the major factors that we’re trying to change with all of these updated water supply agreements; the ability to have water paying for water.”

PEMBROKE: IT’S A MATTER OF TRUST

When asked about the Town of Pembroke, he said he did not want to speculate, stating only that he has had “a good conversation” with the Pembroke Town Board.

Pembroke Supervisor Thomas Schneider Jr. said he believes there is support for the amended agreement, but also noted “some concerns from the past over the way things have been handled, as far as agreements with the county.”

Citing lingering hard feelings, he said the county has “made agreements that they don’t seem to be concerned about breaking.”

“So, now if we sign on to this new one, what’s to say that it can’t be changed five years down the road. I think that’s the biggest concern that most people on our board have.”

Landers said it’s his job to try and build trust in all the towns and villages and hopes that “over time they will believe what we say.”

An email to Corfu Deputy Mayor Michael Doktor and a phone call to Mayor Thomas Sargent seeking comment were not returned. In fact, there has been no reply to requests from The Batavian from either village official throughout this process.

Previously: Ways & Means passes measures rescinding revenue distribution payments, accepting HCA with Plug Power.

Previously: Genesee's west side municipalities considering county legislature's sales tax/revenue distribution proposal.