mall merchants association

Statement from City Manager Jason Molino:

“The trial has been postponed today, awaiting results of the Mall Merchants vote tonight on the settlement agreement. Both parties are to report back to the court Tuesday morning with the results of the settlement vote to determine next steps with respect to the court cases.”

By this time Tuesday, the year's long dispute between the City of Batavia and the City Centre Mall Association will be resolved, or the two sides will be in an Erie County courtroom.

A bench trial was scheduled to begin tomorrow before Erie County Supreme Court Justice Catherine Panepinto.

That date has since been moved to Monday, the same day the merchants are scheduled to hold another vote on the settlement.

City Manager Jason Molino, speaking on WBTA's Main and Center program this morning, says the merchants have held up the vote that had been scheduled for earlier this month.

“The merchant's legal counsel was the one who recommended the adjournment from October 2nd to the 23rd," Molino said. "They knew well in advance when the trial was, we did not suggest that nor did we agree to that.

"The judge, at this point in time, does not want to postpone because if the settlement agreement does not pass, the trial has to go on.”

The primary issue in the dispute is over who is primarily responsible for ownership and maintenance of the mall concourse.

The proposed settlement places the responsibility squarely in the hands of the city and provides some cash for roof repairs.

The City Council ratified the settlement in February of this year but the mall merchants never voted to approve the settlement.

If the merchants approve the settlement on Monday there will be no need for a trial and it would bring to a close a long-simmering dispute that has hindered any attempt to improve the neglected and crumbling concourse.

“(The settlement) null and voids all the other agreements," Molino said. "The inter-tangled web of it (the old agreements) are gone. That was the first term of the term sheet – all the existing agreements are null and void. All the things that created the mess we are dealing with are gone.

"We have very clear ownership, which is the city, very clear responsibility, which is the city. Very clear as to who is responsible for capital improvements, maintenance, and operations – it is one entity, the city. Right now, it is not one entity and that is part of the problem.”

Story via our news partner, WBTA.

Via our news partner, WBTA:

A trial date has been set in Erie County Supreme Court that would settle the dispute between Batavia City Hall and the City Centre Merchants Association.

WBTA has confirmed the two sides are scheduled for a bench trial on Oct. 20th before Erie County Supreme Court Justice Catherine Panepinto.

The basic dispute centers on responsibility for the mall’s continually leaking roof.

Last March the City Council approved an offer to the merchants that would have provided $650,000 dollars to repair the roof, silos and skylights over the concourse in return for the merchants dropping their lawsuit.

The merchants have never ratified the deal.

A member of the merchants association – who wished to remain anonymous – said the city has met all of the merchants’ requests but the association’s lawyers have advised against accepting the deal.

City Manager Jason Molino said the merchants are refusing to vote on the settlement terms that were negotiated last December. 

It is still possible the two sides could come to an out-of-court settlement by the Oct. 20 trial date.

The City and Mall Association have seemingly been on the verge of a settlement in the drawn-out legal fight over the future of the downtown mall, but maybe this time the case can finally come to a close.

According to Mall Association President and Operating Committee Chairman Robert Chiarmonte, the mall board has been updated on details of the latest draft of the deal.

"There's a current supposed agreement that's pretty recent but it's not ... approved by either side yet," Chiarmonte told WBTA. "Each merchant has to approve and sign off. It's not it hasn't gotten to that point yet. The meeting that we had last night was mostly informational. There was no voting actually took place."

It's not certain the owners of all the mall parcels will agree to the settlement.

"Both sides have to agree before we can bring it to a vote," Chiarmonte said. "There are some things in that agreement that we do agree on but I can't discuss most of that. ... It's probably closer than it's been but there are still a few hurdles we need to get passed before we can call it an agreement. I don't think I can discuss details of the agreement at this point because it's still considered an act of litigation. I am hoping that we can come to an agreement soon because it's been going on for a very long time."

City officials have been waiting since most of the year for the mall owners to agree to a settlement they thought attorneys for both sides had accepted in February.

The proverbial “cupboard” is bare.

That’s the view of City Manager Jason Molino, who, in a letter dated April 10, 2017 and obtained by The Batavian in a FOIL request, indicated to the president of the Mall Merchants Association that the group has run out of money.

“Aside from prior year concerns, the Association’s cash position for the current fiscal year is at a deficit,” Molino wrote. “On April 5^th, the City recorded a payroll and payroll taxes transfer for the Association in the amount of $3,285.43. However, mail maintenance fees and revenue to date have only totaled $2,170.67. Therefore, the current cash position for the Association is a deficit of $1,114.76.”

The prior year concerns referred to by Molino are what he estimates as $18,000 in attorney fees and material costs expected to come in for February and March of this year.

“The estimate was based on prior year expenditures and the average of material costs from November through January,” he wrote.

Molino went on to state that the City needs cost summaries for services provided in February and March before it can complete its pre-audit preparation work and “make final payments with remaining cash balances for the prior year.”

Per the 1987 Settlement Agreement between the City and the Mall Merchants Association, the City is required to maintain all Association billing and accounting activities, with the Association’s funds subject to the City’s annual audit.

Molino’s letter paints a bleak picture in terms of the Association’s finances, and could further complicate the parties’ quest to ratify a proposed 11-point settlement framework released to the public in February.

At that time, Molino outlined a “settlement framework” for the City and Mall Merchants Association to end their lengthy dispute over maintenance and operation of the City Centre Mall.

That proposal calls for the City to retain ownership of the downtown facility's concourse, pay 100 percent of capital improvements and take care of mall maintenance and operations.

City Council signed off on the plan and expected the merchants to do the same.

Since then, an attorney for the merchants said the Association would not be agreeing to any settlement that didn’t grant easements for pedestrian and vehicle traffic for each property owner in the mall, and also accused the city of trying to force a settlement by “hoarding” nine foreclosed properties and refusing to pay maintenance fees.

Robert Chiarmonte, president of the Mall Merchants Association, reportedly is out of the area until Tuesday and could not be reached for comment.

However, Madeline Bialkowski, director of the mall, said today that Molino is misrepresenting the Association’s account by exaggerating the attorney fees and material costs for February and March.

“All of our actual bills are supposed to be turned in by next week, and we are asking our attorneys to get us their billing,” she said. “Actual bills will be much less than estimated. There won’t be a deficit once these bills come in.”

Bialkowski added some merchants have made their mall maintenance fees’ payment in advance and that she and her staff of three part-time employees are being paid.

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

Although senators in Albany may not be inclined to consider the idea of New York becoming a “sanctuary state,” City Councilwoman Rose Mary Christian wants to make sure they know where she stands on the matter.

“I want us to draft a resolution and send it to (Assemblyman Steven) Hawley, (Senator Michael) Ranzenhofer, (U.S. Senator Charles) Schumer and (Gov. Andrew) Cuomo, letting them know that the City of Batavia is opposed to this bill,” Christian said toward the end of Monday night’s City Council meeting. “I want no sanctuary city or state.”

Christian spoke out against a bill – known as the New York State Liberty Act -- that was passed by the state Assembly on Feb. 6. The bill is under review in the Senate.

The bill provides certain protections and rights for immigrants, including standards governing law enforcement’s ability to question a person’s immigration status and/or start deportation proceedings.

Council President Eugene Jankowski said that he was under the impression that the Senate was not going to call for a vote on the measure, but Christian wasn’t deterred.

“I still would like to see if my colleagues agree with me,” she said. “It might not do anything but we are willing to try.”

After a brief discussion, Council voted to have City Manager Jason Molino draft a resolution against any measures to create a sanctuary state or city, referencing both the Assembly and Senate bills, and have it ready for an official vote at the board’s next Business meeting on March 13. (It then would be forwarded to the elected representatives, including U.S. Senator Kristen Gillibrand).

Jankowski added that he was on board with Christian’s motion, but noted that “it might be putting the cart before the horse.”

“I don’t think the Senate wants to oppose the federal government and a new president so early in his tenure,” he said.

It also was noted that Assemblyman Hawley did not support the bill, labeled A3049B.

In other developments, Council:

-- As expected, approved a resolution authorizing Jankowski to sign a settlement between the City and the Batavia City Centre Mall Merchants Association to resolve longstanding litigation over the City Centre Mall.

The vote came after Council went into executive session for about 30 minutes to go over details of the agreement.

All council members voted yes except Robert Bialkowski, who abstained because his wife is an employee of the Mall Merchants Association. The agreement now goes to the merchants, who also must sign it.

Two weeks ago, Molino announced that the City and the Mall Merchants Association crafted an 11-point “settlement framework” that calls for the City to retain ownership of the downtown facility's concourse, pay 100 percent of capital improvements and take care of mall maintenance and operations.

Additionally, the City will spend an estimated $650,000 to fix the roof, silos and skylights. Moving forward, the City would impose a user fee based on each merchant’s property square footage.

Bialkowski said he had his doubts about the deal, citing the history of the mall and the series of lawsuits filed by the City and the Merchants.

“I hope that this resolution works this time but when it was first built, it was a disaster,” he said. “The city tried running it itself, but then tried to unload it. I hope it doesn’t become an anchor around the taxpayers’ neck.”

Bialkowski added that he believes that “business should be best left in the private sector; it’s definitely more efficient.”

-- Held public hearings on the 2017-18 budget; cwater/sewer rates and capital improvement fee; amending the Batavia Business Improvement District plan, and a Community Development Block Grant. No one from the public spoke.

Thus, Council members likely will vote in two weeks on the City's proposed $23.9 million spending plan that calls for a 0.9 percent tax increase.

-- Moved forward to the March 13^th meeting several resolutions, including one that retains Freed Maxick for financial auditing services for another five years, and another that approves a $90,000 increase in the final cost of the Summit Street reconstruction project (which still came in $250,000 under budget).

A mediator could help resolve the long-simmering dispute between the City of Batavia and the Mall Merchant's Association, City Manager Jason Molino said this morning during an on-air interview on WBTA's Main and Center.

The bickering and lawsuits and counter-lawsuits are leading nowhere, Molino suggested. They won't lead to a resolution that satisfies all parties. A mediator would have a better chance and an equitable solution.

“When litigation is filed, it is on a narrow scope of issues and if it ever goes to trial and has a determination, the determination is going to be on that narrow scope of issues, and generally, on anything, there is more to it than just those narrow scope of issues and in this case, there is a lot more to it," Molino said.

The city and the Mall Merchants Association have been locked in a dispute for several years over who is responsible for the maintenance of the roof over the mall concourse.

The merchants claim the city owns the concourse and should repair or replace the roof.

The city maintains the merchants failed to properly maintain the roof.

Molino said he would like to see the case go to a mediator.

“Can there be a mediator? Yes, absolutely," Molino said. "Is that something we’re looking to do? Yes, it is.”

So far, no mediator has been appointed.

The city owns the Mall Concourse. The stores and offices in the mall are individually owned.

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.