city centre

So far, attorneys have been paid a combined $207,000 for the City of Batavia and the Mall Merchants Association to battle in court over who is responsible for what in the rapidly deteriorating structure.

There's a chance now the case may go to mediation, the City Council was informed Monday night.

After losing a motion for a summary judgement, City Manager Jason Molino said the MMA is willing to submit to mediation. 

A final agreement on mediation has not be completed.

The city and MMA have locked horns over responsibility for concourse maintenance, major repairs, ownership and governance.

In 2009, the MMA filed suit against the city.

Since then, the city has spent $104,199 on legal fees, while the suit has cost the mall merchants $103,317, according to Molino's memo.

"A thriving and healthy City Centre is critical to the City's downtown revitalization, and the City is very interested in an overall resolution that will best support long-term and prosperous solutions for all parties involved," Molino wrote.

There was a degree of frustration on all sides in council chambers Monday night over the long-simmering dispute over the state of the downtown mall after a resident raised the issue during public comments.

Some council members initially joined in the call of Richard Richmond to have the state's comptroller's office audit the city's legal fees associated with the city's dispute and the current lawsuit with the Mall Merchants Association.

Molino noted, however, that the city was audited last year and no irregularities related to legal bills were found.

He also asked what the goal of such an audit would be. The legal fees are public record and have been released before.

Richmond said he would like to see an itemized list of attorney fees for the mall, even suggesting audio go back six years to check for any inadvertent double billing.

The city's financial statements are scrutinized every year by an independent accountant, Molino told the council, and "they report any fraud or inconsistencies."

There have been no such reports.

Last year, resident John Roach issued a public records request and received documents showing the city's legal fees related to mall litigation, but some material was redacted if it could reveal information covered by attorney-client privilege. 

An audit, Molino suggested, would not necessarily uncover the kind of information perhaps some think it might.

"The comptroller is not going to provide you with guidance on what you pay for what services," Molino said. "They're not going to come in and tell you you're paying too much for police services, you're paying too much for fire services or you're paying too much for this."

Council members such as John Deleo expressed concern about how much was being spent on mall litigation and compared the years-long conflict with the mall association to a messy divorce that has gone on too long.

More than just the legal fees, perhaps, Deleo said, "people are concerned about the mall and the 57 buckets and how long does this divorce will go on."

After the meeting, Molino hinted at his own frustration with five or six years of disputes over the mall, but also expressed hope that a once-and-for-all solution can be reached during legal negotiations.

The condition of the mall and the disputes over the mall create a perception problem, Molino said, that could hold back redevelopment and brownfield development.

"It does not help the long-term success of the city nor the long-term success of the businesses and the redevelopment potential downtown, so, yes, it does hurt," Molino said. "It hurts everybody. I think everybody's business involved is going to benefit when it's resolved, and the city as a whole, and the community, will be able to get through this, and I hope it's a milestone that we can get past and say we were able to get past that hurdle."

There is an openness, Molino believes, to finding a solution to the disputes that led to the lawsuit, the involves negotiation and not further litigation.

"I think both parties want to resolve this issue and it's just a matter of coming together to find common ground that is going to meet everybody's needs," Molino said.

The New Year's Eve party at City Centre to celebrate Batavia's centennial has given rise to a new point of contention between the city and the Mall Merchants Association.

While there is a long simmering dispute over who is responsible for a troubled roof and other repairs to the structure, and with a city-filed lawsuit pending over alleged unpaid rents, Mall Director Madeline Bialkwoski says you can now add "trespass" the the association's list of complaints.

Prior to Wednesday's event, Bialkowski sent a letter to City Manager Jason Molino that said as far as the association was concerned, using a portion of the mall concourse for a dance floor and photo studio was never authorized by the association.

"Therefore, we are once again letting you know that you do not have permission to use our insured and leased concoure space for your New Year's Eve Celebration and respectfully request that the City gate remains closed and locked," Bialkowski wrote to Molino.

Reached at his office this afternoon, Molino said, "We own the mall."

Asked if that isn't a bit like a landlord saying "I'm going to use your house for a party," Molino said there's a difference between a residential property and a commercial property. The city owns the space and therefore doesn't need the permission of the merchants to use it.

Bialkowkski said the association's big concern is over its insurance. She said the association's policy, like most mall policies the past few years, forbids the consumption of alcohol in the concourse.

"It voids our insurance," she said. She's concerned, she said, that now that the party has taken place, what the ramifications might be for the association's policy.

Molino said the city had insurance to cover the event.

"We had everything we needed in place," Molino said.

The event included a cash bar in the second floor community room and partygoers were free to carry drinks, if they wished, into the portion of the concourse being used for the party.

Bialkowski thinks the conflict could have been resolved if the organizers had been willing to put up signs and station one or two people in the stairway to ensure drinks were not carried down stairs.

"There justification is that they had insurance," Bialkowski said. "A million dollar policy with an additional insured is nothing in today's atmosphere."

Bialkowski said she first alerted Vibrant Batavia to the potential problem as far back as August and raised concerns then.

Leanna Di Risio, of Vibrant Batavia and a member of the Centennial Committee, wrote a letter to Bialkowski on Nov. 7 outlining celebration plans and requesting the mall association's support of the celebration.

The association's operating committee voted Dec. 4 to deny the committee permission for use of the space. (Dec. 4 is a late date for such a decision, Bialkowski admits, but said the committee couldn't meet in November because of travel and vacations of members).

The city has filed a suit against the merchants claiming the association owes more than $800,000 in back rent for the concourse.

As for the claim of trespass, Molino said, "The mall merchants are just being obstructionists."

Bialkowski said she realizes she could have called the police on the trespass complaint, but felt that would just be unfair to any officer who responded, putting the officer in awkward position.

"No one here wanted to ruin the event," Bialkowski said.

Press release:

On Wednesday July 16th the City refunded (refinanced) the current City Centre debt service. This effort refinanced approximately $4,050,000 of general obligation bonds that financed the construction of the City Centre in 2004.

These bonds were issued by USDA Rural Development, and at the time were considered low interest at 4 percent. However, much like refinancing your own home mortgage, refinancing the City's outstanding bonds will reduce the interest paid over the life of the loan. The refunding was approved by City Council on April 8, 2013, and the City along with its financial advisors, Municipal Solutions, Inc., have been monitoring bond market rates for over the past year to find the time when market rates would be at their lowest level to maximize the savings to the City's taxpayers.

Interest rates on municipal bonds are very favorable at this time and the savings realized by refunding the outstanding bonds now resulted in more than $73,000 in increased budgetary savings compared to rates that were presented to City Council one year ago. In total, this refunding has saved the City approximately $303,000 in interest payments during the remaining 21-year life of the reissued bond, ending in 2036.

Via WBTA:

Two flower beds that in recent years haven't looked like much got a hosta makeover by city staff Monday afternoon.

City Manager Jason Molino, himself an avid gardener, organized the effort and convinced several local businesses, including Genesee Dental, Hawley Insurance, the Bank of Castile and WBTA, to pay for the hostas.

City staff from several different departments turned out today and got the 21 plants in the ground in about 30 minutes.

The plants were selected by Molino, who also drew up the plans on where each should be planted, and purchased from Pudgie's Lawn and Garden.

Asked, why hostas, Molino said, "Partially, because I’m a big fan of hostas myself. Hostas don’t need a lot of care. They’re pretty hardy. They’re a good no-brainer in terms of maintenance and something that will come back every year. As they come back and fill out more, you’ll see more and more the hostas themselves and less of the dirt."

Photos: Above, Molino and Sally Kuzon. Below, Sgt. John Peck, Batavia PD, and bottom photo, most of the staff (and Sgt. Peck's wife) who participated in the planting.

This is the Remembering 9/11 display set up at City Centre by the NYS Museum, one of several 9/11 artifact displays set up in various municipalities throughout New York.  The car is an unmarked NYC Port Authority sedan that was found under the rubble of the Twin Towers. The display is outside the mall-side entrance to Batavia City Hall.

The City Centre was packed with Zumba dancers this afternoon as part of a "Party of Hope" to raise money for Genesee Cancer Assistance.

Zumba is a fusion of Latin beats, international music and fitness dance moves.

Dancers donated money to participate.

A solution may have been found for the white streaks on the red bricks of City Hall.

On Monday, City Council approved a $31,500 contract with Highland Masonry and Restoration Inc., of Buffalo, to replace 46 windows and sills with material that won't run and create new streaks.

Once the building's cleaned up and the new windows are in place, the building should be more attractive, officials say.

"It does bother the citizens of Batavia," said City Council President Marrianne Clattenburg. "I get comments on it all the time – when are you going to fix those windows?"

Director of Public Works Sally Kuzon said the city tried two different replacement or repair options on three different windows on the building. The replacement process showed the most success on two windows, so the city then sought bids for the work on the remaining 46 windows.

Councilman Sam Barone was the only council member to object to the work, saying he was concerned about the expense and that he could live with the situation.

The city did budget $27,000 for the project. The $4,500 shortfall will be taken from the city's facilities reserve.

Councilwoman Patti Pacino was among the council members who questioned why the city couldn't sue the contractor who installed the windows, or the architect who wrote the specs.

"I still don't understand how it's not some body's fault," Pacino said.

City Attorney George Van Nest explained that the building contractor was merely going off the plans and specs provided by the architect when the building was erected five years ago, so couldn't be held libel.

As for going after the architect, he said expert opinion, according to his research, varies on the proper construction process and materials for installing windows in a masonry building, making getting a win on a lawsuit much more difficult.

"Legal action could cost more than the project itself," said City Manager Jason Molino.

Both Molino and Van Nest explained that winter-time construction and the compounds used in installing the windows at that time of year may be the reason the streaks appeared. Van Nest said he's seen the same problem appear on buildings in Buffalo.

"In my opinion, this is a beautiful building and those stains under the windows really detract from it," said councilman Frank Ferrando. "I think we owe it to this community and the investment that we made here that we make it look good. This is our downtown. This is something we should all be very proud of."

Photos: Kuzon, Ferrando, Pacino.

City Fire is being dispatched to 1 City Centre, section 8A, to investigate the odor of wires burning.

UPDATE 10:31 a.m.: Engine 12 went back in service a few minutes ago.

It seems lots of people like to speak with no knowledge base.  Mr. Mallow seems to be the prime offender, although obviously he is not alone.

These are the facts that are not disputed:

The sign belonged to the merchants and was taken down and destroyed by the city.  The city has confirmed this in the past and we have that documentation.

The city owns the concourse. 

State laws give tenants specific rights in absence of lease documents to the contrary.

The city has never given us a lease, despite multiple requests for one.

What is in dispute is who is responsible for what.  We keep trying to negotiate these points and the city keeps stalling hoping to never resolve them.  We believe we have certain responsibilities and believe the city, as concourse owner has others.  The city may have another view, but we can't get any meaningful negotiation to even know what that is.

We have been misled and need resolution.  Mr. Mallow has poisoned any possibility of negotiation. That is why the law suit is being filed.

For those of you who rent, would you expect to make structural changes, such as a new roof?  I would guess not.  Would you have been patient enough to wait years.  I think not.  We have gone out of our way to work with the city.  Unfortunately some of the representatives of the city, especially  Mr. Mallow ,just want to stay in the papers without allowing for any resolution.

Mr. Roach also disappoints me.  I assume this relates to some political aspirations.  Prior to this year he was our advocate.  Reputation is something valuable.  One should not sell it cheaply.  Perhaps you can think this out before continuing, or at least speak with us to see both sides.