REGULAR MEETING of the Town Board of the Town of Pomfret held at
6:30 P.M. February 9, 2022 at the Pomfret Town Hall, 9 Day Street, Fredonia, N.Y.
Supervisor Daniel Pacos
Town Clerk Allison Vento
PRESENT: Town Counsel Jeffrey Passafaro
Highway Superintendent Jude Gardner
COUNCILPERSONS: John Sedota
Christopher Schaeffer
Ann Eckman
ABSENT: Brett Christy
The Pledge of Allegiance was recited and led by Supervisor Pacos to open the Regular Town Board Meeting.
DULY MOVED by Councilman Sedota to accept the minutes of the
January 12, 2022 Regular Town Board Meeting. The motion was seconded by Councilman Schaeffer and carried unanimously.
DULY MOVED by Supervisor Pacos to approve the payment of bills on abstract #2 of 2022. The motion was seconded by Councilwoman Eckman and carried by a roll call vote.
Roll Call:
Supervisor Pacos-AYE
Councilman Sedota-AYE
Councilman Schaeffer-AYE
Councilman Christy-Abesent
Councilwoman Eckman-AYE
General Fund Town Wide $23,753.28
General Fund Part Town $17,148.37
Highway Fund Part Town $43,203.33
Berry Water District $221.84
Chestnut Water District $198.83
North End Water District $418.81
Lily Dale Sewer District $671.03
VB Water District $6,681.00
Capital Projects $914,576.81
Pom. Fire Protection $355,839.00
LD Fire Protection $30,400.00
DULY MOVED by Supervisor Pacos to approve the payment of bills on abstract #22 of 2022 in the amount of $62,370.78 for Chadwick Bay Intermunicipal Waterworks. The motion was seconded by Councilwoman Eckman and carried by a roll call vote.
Roll Call:
Supervisor Pacos-AYE
Councilman Sedota-AYE
Councilman Schaeffer-AYE
Councilman Christy-Absent
Councilwoman Eckman-AYE
TOWN CLERK REPORTS
- Town Clerk Vento provided to the Pomfret Board the January 2022 report of monies collected. A total of $4,126.00 was collected. The report is on file in the Clerk’s Office.
- Town Clerk Vento provided a monthly report for January 2022 of tax collection. A total of 3,240 bills were processed collecting $4,4000,019.44 for the Town/County taxes.
- The monthly report for the Town Historian has been received and on file in the clerk’s office.
- Pomfret Town Justice report for January 2022 is as follows:
Justice Dietzen Total Cases: 176
Total Fine & Surcharges: $13,422.00
Cases dismissed: 15
Justice Cerrie Total Cases: 134
Total Fine & Surcharges: $10,467.00
Cases dismissed: 24
- The Pomfret offices and buildings will be closed Monday, February 21, 2022 in observance of President’s Day.
AUDIENCE CONCERNS
- Marti Webster, Van Buren Point Association Member, addressed the board concerning the zoning changes being considered. Supervisor Pacos addressed her stating they are looking to change the Lakefront Residential to allow more uses by Special Use Permit or allowable use under the proposed zoning law amendments. Mr. Pacos stated the board is not looking to increase businesses, per say, but to allow uses giving the board a say of what is allowed and not allowed. Ms. Webster thanked Mr. Pacos for his timely response to the email she had previously spent and requested, when the board schedules a public hearing, to allow residents to participate via zoom.
- Jill Crane, Van Buren Resident asked, “Why is the board considering re-zoning now?” Councilwoman Eckman stated this has been something the board has been working on for a few years. It has nothing to do with recent sales of property or development being proposed. Ms. Crane stated she is in favor of people coming to the area and putting money into the community but has serious concerns regarding the use of vacant property and the increased traffic it could bring to the area. Ms. Eckman reiterated this is not something ‘new’ the board is considering. It has been discussed prior. She asked the residents to please give the board a chance to review the recommendations from the Planning and Zoning Boards before drawing conclusions. Ms. Crane addressed Highway Superintendent, Jude Gardner, about the lack of visibility on the corner of Van Buren Rd. and Route 5 due to snow mounds. Mr. Gardner stated he will contact the Chautauqua County to clear excess snow.
- Julie McFarland asked the board if the site where the previous store is located, could re-open as it is zoned currently. Mr. Pacos stated, it could, but would have to go before the Zoning Board for a Use Variance Hearing. They may not meet all the criteria to move forward.
- Linda Warner asked if the Planning Board gave their recommendations to the Town Board. Mr. Pacos replied, ‘Yes, they were received late yesterday’. Ms. Warner stated again her concern of condensed traffic in the area. She distributed to the board her response to a FOIL request she submitted to the NYS Department of Transportation, as well as her own traffic study she conducted at the intersection of Route 5 and Lake Road.
SUPERVISOR PACOS
- Supervisor Pacos made a motion giving consent to the Chautauqua County IDA to be the lead agency for SEQR on the proposed Special Use Permit for a large solar farm located at 10026 Farel Road, Fredonia. The motion was seconded by Councilwoman Eckman and carried unanimously.
- The board has directed Town Attorney, Jeffrey Passafaro, to draft language regarding the setback requirements for solar projects. Mr. Passafaro will have the language to the board to review and schedule a public hearing at next month’s meeting. The board spoke with the representative of RIC Development for the 10026 Farel Road Solar Project. The board will get their changes on setbacks to their team so their site plans can be revised to meet the future requirements under local law.
- The Pomfret Town Board has not received referral from the Chautauqua County Planning and Development Board on the proposed solar project located at 9824 Rt. 60. Attorney Passafaro will send correspondence so the board may act at next month’s meeting to approve or deny the Special Use Permit.
- Councilwoman Eckman made a motion to approve the agreement with the County of Chautauqua for the Salt Storage Facility Project. The motion was seconded Councilman Sedota and carried unanimously.
- Councilman Sedota made the motion to approve the following resolution of a budget modification for the Lily Dale Water District. The motion was seconded by Councilman Schaeffer and carried unanimously.
WHEREAS, the Town of Pomfret has received funding from Rural Development for their Lily Dale Water Project (“Project”); and
WHEREAS, the Town Board wishes to adjust project budget items to more accurately reflect actual costs and;
WHERAS, Rural Development Requires the Town Board to authorize all changes to the Administrative Budget as shown on the Form E; NOW, THEREFORE BE IT
RESOLVED, that the Town Board of the Town of Pomfret authorizes the following Budget Modifications for the Project;
Single Audits Increase of $7,718.00
Direct Expenditures Increase of $4,032.64
Contingency Decrease of $11,750.64
- The following resolution was approved by Councilwoman Eckman and seconded by Councilman Schaeffer. The motion carried unanimously.
RESOLUTION, DATED FEBRUARY 9, 2022, OF THE TOWN BOARD OF THE TOWN OF POMFRET, CHAUTAUQUA COUNTY, NEW YORK (THE “TOWN”) ADOPTING POST-ISSUANCE TAX COMPLIANCE PROCEDURESWHEREAS, the Internal Revenue Service has issued regulations requiring issuers of tax-exempt obligations to certify on various forms that they actively monitor compliance with federal tax rules following the issuance of such obligations; and
WHEREAS, the Town is a periodic issuer of tax-exempt obligations and thus is subject to the aforementioned compliance requirements which are critical for the preservation of the preferential tax status of those obligations; and
WHEREAS, it is therefore in the best interest of the Town to adopt formal written procedures to ensure such compliance and to designate an official responsible for ensuring that such procedures are followed; and
WHEREAS, Hodgson Russ LLP, as bond counsel to the Town, has prepared (and has recommended that the Town adopt) post-issuance tax compliance procedures;
NOW THEREFORE, BE IT RESOLVED, that the Town hereby adopts the post-issuance tax compliance procedures that are attached hereto as “Schedule A” and resolves to be governed thereby; and be it further
RESOLVED, that the below Schedule A will be placed in its entirety in the official records, files and minutes of the Town and adhered to going forward; and be it further
RESOLVED, that this resolution shall take effect immediately upon its adoption.
Schedule ATOWN OF POMFRET,
CHAUTAUQUA COUNTY, NEW YORKPost-Issuance Tax Compliance Procedures
for Tax-Exempt Bonds and NotesStatement of PurposeThese Post-Issuance Tax Compliance Procedures (the “Procedures”) set forth specific procedures of the
Town of Pomfret, Chautauqua County, New York (the “Issuer”) designed to monitor, and ensure compliance with, certain requirements of the Internal Revenue Code of 1986, as amended (the “Code”) and the related Treasury regulations promulgated thereunder (the “Treasury Regulations”) in connection with the Issuer’s issuance of tax-exempt bonds and notes (“Obligations”).
These Procedures describe various systems designed to identify, on a timely basis, facts relevant to demonstrating compliance with the requirements that must be satisfied subsequent to the issuance of Obligations to ensure that the interest on such Obligations is eligible for exclusion from gross income for federal income tax purposes. The federal tax law requirements applicable to the Obligations will be described in the tax questionnaire and/or tax certificate prepared by bond counsel and signed by officials of the Issuer. These Procedures establish a permanent, ongoing structure of practices that will facilitate compliance with the requirements for individual borrowings.
To ensure compliance with applicable federal tax requirements, the Issuer must monitor the various direct and indirect uses of proceeds of the obligation and the investment of such proceeds, including but not limited to:
(1) Monitoring the use of financed property over the life of the obligation.
(2) Determining the sources of debt service payments and security for the obligation.
(3) Calculating the percentage of any nonqualified use of the financed property.
(4) Calculating the yield on investments of proceeds.
(5) Determining appropriate restrictions on investments.
(6) Determining the amount of any arbitrage on the investments.
(7) Calculating any arbitrage rebate payments that must be paid to the U.S. Treasury.
The Issuer recognizes that compliance with the pertinent law is an on-going process, necessary during the entire term of the Obligations. Accordingly, the implementation of the Procedures will require on-going monitoring and consultation with bond counsel and the Issuer's accountants and municipal advisor.
General ProceduresThe following procedures relate to monitoring post-issuance tax compliance generally.
A.
The Town Supervisor, currently Daniel Pacos (the “Compliance Officer”), shall be responsible for monitoring post-issuance tax compliance issues.
B. The Compliance Officer will coordinate procedures for record retention and review of such records.
C. All documents and other records relating to Obligations must be maintained by or at the direction of the Compliance Officer. In maintaining such documents and records, the Compliance Officer will comply with applicable Internal Revenue Service (“IRS”) requirements, such as those contained in Revenue Procedure 97-22 (see the reference materials presented herewith, referred to herein as “Reference Materials”).
D. The Compliance Officer shall be aware of remedial actions under Section 1.141‑12 of the Treasury Regulations (see Reference Materials) and the Treasury's Tax‑Exempt Bonds Voluntary Closing Agreement Program (VCAP) and take such corrective action when necessary and appropriate.
E. The Compliance Officer will review post-issuance tax compliance procedures and systems on a periodic basis, but not less than annually.
F. The Compliance Officer will be responsible for training any designated officer or employee who is delegated any responsibility for monitoring compliance pursuant to this procedure. To the extent the Compliance Officer needs training or has any questions with respect to any item in this procedure, he or she should contact bond counsel and/or Issuer’s accountants and advisors. The IRS recognizes that the Compliance Officer and any delegated individual are not expected to act as lawyers who know the proper response to all compliance situations that may arise, but they should be familiar enough with federal tax issues that they know when to ask for legal or other compliance advice.
Issuance of Obligations: Documents and RecordsWith respect to each issue of Obligations, the Compliance Officer will:
A. Obtain and store a closing binder and/or CD or other electronic copy of the relevant and customary transaction documents (the "Transcript").
B. Confirm that the applicable information reports (e.g., Form 8038 series) for such issue are filed timely with the IRS. Issuer should consult with their accountants and/or bond counsel with questions regarding the filing of such forms.
C. Coordinate receipt and retention of relevant books and records with respect to the investment and expenditure of the proceeds of such Obligations.
ArbitrageThe following procedures relate to the monitoring and calculating of arbitrage and compliance with specific arbitrage rules and regulations.
The Compliance Officer will:
A. Confirm that a certification of the initial offering prices of the Obligations with such supporting data, if any, required by bond counsel, is included in the Transcript.
B. Confirm that a computation of the yield on such issue from the Issuer's municipal advisor or bond counsel (or an outside arbitrage rebate specialist) is contained in the Transcript.
C. Maintain a system for tracking investment earnings on the proceeds of the Obligations.
D. Coordinate the tracking of expenditures, including the expenditure of any investment earnings. If the project(s) to be financed with the proceeds of the Obligations will be funded with multiple sources of funds, confirm that the Issuer has adopted an accounting methodology that maintains each source of financing separately and monitors the actual expenditure of proceeds of the Obligations.
E. Maintain a procedure for the allocation of proceeds of the issue and investment earnings to expenditures, including the reimbursement of pre-issuance expenditures. This procedure shall include an examination of the expenditures made with proceeds of the Obligations within 18 months after each project financed by the Obligations is placed in service and, if necessary, a reallocation of expenditures in accordance with Section 1.148-6(d) of the Treasury Regulations (see Reference Materials).
F. Monitor compliance with the applicable "temporary period" (as defined in the Code and Treasury Regulations) exceptions for the expenditure of proceeds of the issue, and provide for yield restriction on the investment of such proceeds if such exceptions are not satisfied.
G. Ensure that investments acquired with proceeds of such issue are purchased at fair market value. In determining whether an investment is purchased at fair market value, any applicable Treasury Regulation safe harbor may be used.
H. Avoid formal or informal creation of funds reasonably expected to be used to pay debt service on such issue without determining in advance whether such funds must be invested at a restricted yield.
I. Consult with bond counsel prior to engaging in any post-issuance credit enhancement transactions or investments in guaranteed investment contracts.
J. Identify situations in which compliance with applicable yield restrictions depends upon later investments and monitor implementation of any such restrictions.
K. Monitor compliance with six-month, 18-month or 2-year spending exceptions to the rebate requirement, as applicable.
L. Procure a timely computation of any rebate liability and, if rebate is due, to file a Form 8038-T and to arrange for payment of such rebate liability.
M. Arrange for timely computation and payment of "yield reduction payments" (as such term is defined in the Code and Treasury Regulations), if applicable.
Private Activity: Use of ProceedsThe following procedures relate to the monitoring and tracking of private uses and private payments with respect to facilities financed with the Obligations.
The Compliance Officer will:
A. Maintain records for determining and tracking facilities financed with specific Obligations and the amount of proceeds spent on each facility.
B. Maintain records, which should be consistent with those used for arbitrage purposes, to allocate the proceeds of an issue and investment earnings to expenditures, including the reimbursement of pre-issuance expenditures.
C. Maintain records allocating to a project financed with Obligations any funds from other sources that will be used for otherwise non-qualifying costs.
D. Monitor the expenditure of proceeds of an issue and investment earnings for qualifying costs.
E. Monitor private use of financed facilities to ensure compliance with applicable limitations on such use. Examples of potential private use include:
1. Sale of the facilities, including sale of capacity rights;
2. Lease or sub-lease of the facilities (including leases, easements or use arrangements for areas outside the four walls, e.g., hosting of cell phone towers) or leasehold improvement contracts;
3. Management contracts (in which the Issuer authorizes a third party to operate a facility, e.g., cafeteria) and research contracts;
4. Preference arrangements (in which the Issuer permits a third party preference, such as parking in a public parking lot);
5. Joint-ventures, limited liability companies or partnership arrangements;
6. Output contracts or other contracts for use of utility facilities (including contracts with large utility users);
7. Development agreements which provide for guaranteed payments or property values from a developer;
8. Grants or loans made to private entities, including special assessment agreements; and
9. Naming rights arrangements.
Monitoring of private use should include the following:
1. Procedures to review the amount of existing private use on a periodic basis but not less than annually; and
2. Procedures for identifying in advance any new sale, lease or license, management contract, sponsored research arrangement, output or utility contract, development agreement or other arrangement involving private use of financed facilities and for obtaining copies of any sale agreement, lease, license, management contract, research arrangement or other arrangement for review by bond counsel.
If the Compliance Officer identifies private use of facilities financed with tax-exempt debt, the Compliance Officer will consult with bond counsel to determine whether private use will adversely affect the tax status of the issue and if so, what remedial action is appropriate. The Compliance Officer should retain all documents related to any of the above potential private uses.
ReissuanceThe following procedures relate to compliance with rules and regulations regarding the reissuance of Obligations for federal law purposes.
The Compliance Officer will identify and consult with bond counsel regarding any post-issuance change to any terms of an issue of Obligations which could potentially be treated as a reissuance for federal tax purposes.
Record RetentionThe following procedures relate to retention of records relating to the Obligations issued.
The Compliance Officer will:
A. Coordinate with staff regarding the records to be maintained by the Issuer to establish and ensure that an issue remains in compliance with applicable federal tax requirements for the life of such issue.
B. Coordinate with staff to comply with provisions imposing specific recordkeeping requirements and cause compliance with such provisions, where applicable.
C. Coordinate with staff to generally maintain the following:
1. The Transcript relating to the transaction (including any arbitrage or other tax questionnaire, tax regulatory agreement, and the bond counsel opinion);
2. Documentation evidencing expenditure of proceeds of the issue;
3. Documentation regarding the types of facilities financed with the proceeds of an issue, including, but not limited to, whether such facilities are land, buildings or equipment, economic life calculations and information regarding depreciation;
4. Documentation evidencing use of financed property by public and private entities (e.g., copies of leases, management contracts, utility user agreements, developer agreements and research agreements);
5. Documentation evidencing all sources of payment or security for the issue; and
6. Documentation pertaining to any investment of proceeds of the issue (including the purchase and sale of securities, yield calculations for each class of investments, actual investment income received by the investment of proceeds, guaranteed investment contracts, and rebate calculations).
D. Coordinate the retention of all records in a manner that ensures their complete access to the IRS.
E. Keep all material records for so long as the issue is outstanding (including any refunding), plus seven years.
- The Town will be advertising for a part-time assistant to the Code Enforcement Officer.
- Supervisor Pacos made a motion to authorize the purchase of a printer, two monitors, and two webcams for the Assessor’s office from the ARLM Equipment Reserve Fund at a cost not to exceed $7,166.00. The motion was seconded by Councilwoman Eckman and carried unanimously.
- Supervisor Pacos received word from Fran Porpiglia, Representative of National Grid, the updated numbers for the LED lighting will be presented at next month’s meeting.
- The Town of Pomfret Board is responding to the indoor mask mandate updated by Governor Hocohul. The Pomfret Town hall will still require masks inside to conduct town business.
- The Town Board has received cannabis sample laws from Town Attorney Passafaro. The board will review and share with the Planning Board for their recommendations.
COUNCIL REPORTSCOUNCILMAN CHRISTY-Absent
COUNCILMAN SEDOTA- Councilman Sedota asked if the Pomfret Highway Department had the equipment to lend to the Village of Fredonia to help with plowing the sidewalks. Mr. Gardner replied the town does not have a sidewalk plow. The highway is, however, helping with the snow removal within the Village of Fredonia.
COUNCILMAN SCHAEFFER-None
COUNCILWOMAN ECKMAN-None
HIGHWAY SUPERINTENDENT JUDE GARDNER
- The January work report was distributed.
- Mr. Gardner would like to wait on the purchase of a new pick -up truck due to lack of inventory and incentives. He will wait until the fall for hopes of better options and pricing.
- The fuel system is failing. After a discussion, the board is seeking advice from Clark Patterson Lee if the fuel system and electrical upgrades can be rolled into the salt storage shed project. Mr. Gardner will send all information to Eric Weis for their review.
- Clark Patterson Lee, engineers for the salt storage facility, will be notified to move forward and obtain specs for the future building.
TOWN ATTORNEY PASSAFARO- There is one settlement in the works with the Assessor and Town Attorney. As it develops, Mr. Passafaro will report to the board.
DULY MOVED by Supervisor Pacos to leave the regular town board meeting to enter into executive session for the purpose of acquisition, lease or sale of real property or securities when publicity would substantially affect the value, with no action to be taken during the executive session. The motion was seconded by Councilman Schaeffer and carried unanimously. Time: 7:53 P.M.
Executive session began at 7:59P.M.
DULY MOVED by Councilwoman Eckman to exit the executive session and return to the regular town board meeting to adjourn. The motion was seconded by Councilman Schaeffer and carried unanimously. Time: 8:14 P.M.
Respectfully Submitted,
Allison Vento
Town Clerk
