Approved
Minutes
AD
HOC COMMITTEE MEETING
March 12, 2007 at 7:30 AM
Chambers
Members Present: Carol Tytler, Dan Tagliente, John Steger, Larry Cornell and Mike McKee. Absent: John Daniels
Others Present: Tom Williams; Legislator, Marilyn Brown; Chairman of the Legislature, Scott Schrader, County Administrator, Richard VanDonsel; County Attorney, Dennis Whitt; County Auditor, Brian Parker; Director of Buildings and Grounds, Susan Morgan; Clerk of the Legislature, Katrina Spicer; Secretary to Administration, Corey Preston & Eric Mulvihill; Media.
Ms. Tytler called the meeting to order at 7:33 AM. Draft minutes of the March 9, 2007 were distributed. Ms. Tytler said she asked Cinquanti Real Estate to clarify the option procedure. The letter received from Mr. Cinquanti was distributed and numbered #36. She also contacted Housing Visions to ask if they have interest in the properties and the response was that they have all the property needed at this point however that could change. She also said she had sent an email regarding the focus group report for review and will be presenting that later. She then asked Mr. VanDonsel to discuss the County’s legal options.
Mr. VanDonsel said he has a spreadsheet prepared to outline the “IF” scenario that he suggested be discussed in executive session. He referred to the timelines that have been presented by others and concurs they are accurate as far as his involvement with the project. He reviewed contracts in September and purchase agreements in November and added a conversation with Scott Schrader in December reviewing the Tax Maps to coordinate with the purchase agreements.
In answer to Ms. Tytler’s request to explain the verbal contract with Cinquanti Real Estate, he said if you look at the purchase agreements (#6) they have the standard contract language in paragraph 15 that lays out the terms for payment of commissions that were properly initialed and signed for the 6% amount subject to the passage of the Resolution. Mr. McKee asked where it states when we pay the commission. Mr. VanDonsel said it doesn’t state a date although traditionally this is done at the closing. This transaction was unique because it is an agreement with a municipality and not a cash deal, requiring a mortgage. Instead it was contingent on Legislative approval.
Mr. Williams asked if his first contact was in September. Mr. VanDonsel said he was aware of space needs when he was a legislator so was aware that it was being discussed. In late Spring/early Summer he had a very casual conversation with the Chairman of the Legislature consisting of “wouldn’t it be nice if the Moose property works out as a good site”. It was September’s conversation with Mr. Schrader that he was informed of the specifics of the project. Mr. Williams asked Mr. VanDonsel’s opinion regarding the difference between an option and a purchase agreement approach. Mr. VanDonsel said there isn’t a big difference. The option goal is to lock in a price for a period of time to insure you get that price. He said he never characterized this as an option; it was a purchase offer contingent on Legislative approval. Ms. Tytler said in her conversation with Cinquanti Real Estate, if this was an option then the County would have put money down, instead they agreed to use Legislative approval as the approval method. We may decide on the option route at another time but it will cost more money.
Mr. McKee asked if it is with government approval will that still give an opportunity to reconsider. Mr. VanDonsel replied that a municipality is unique and others need to recognize the rules they abide by. Ms. Tytler asked Mr. VanDonsel to explain the motion to reconsider option used by the legislature. Mr. VanDonsel referred to Roberts Rules of Order and the County Rules, saying that there are 2 instances that give the legislature the right to rescind and the right to reconsider. The option to rescind is related to changes that take place over the years and that is allowed without a timeframe. The motion to reconsider is meant to protect the taxpayers and is only allowed in the next regular business session. A judge will be asked to decide if the motion to reconsider was appropriate and if the judge agrees with the sellers that it wasn’t a proper vote, we will be either subject to damages (dollars) or specific performance (in this instance, to purchase the property). The County then can determine to keep the property for a specific purpose or market the property. Part of the calculation for damages, if the County is ruled against, may be defined by the specific costs incurred, i.e. real estate commissions, survey costs.
Chairman Brown stated she had a conversation with Mr. VanDonsel prior to the January meeting when she questioned the motion to reconsider saying that Robert Rules of Order say that if a party has been notified, it cannot be reconsidered. She stated that letters had been sent to parties involved and doesn’t understand why the notification does not apply. Mr. VanDonsel recalled the conversation saying that the wording is “when something that has been done, cannot be undone” He agreed they disagreed on this issue. He explained that three parties could have claim to that: Cinquanti Real Estate, Barton & Loguidice and the sellers in this instance. There was nothing to indicate that this could not be undone regarding the properties proposed for purchase as he had not received any items such as abstracts, deeds, tax searches, etc to indicate that sellers were able to transfer their property to the County; we hadn’t crossed that line. An example given was that if the Moose property title was bad and made the agreement unworkable, the motion to reconsider protects the County from a binding agreement. The goal of the rule is to guide the municipality for protection. The Moose contract required Mr. Ruthig to submit paperwork prior to December 29th. He did not do that so he was in breach of contract. If we had signed the paperwork and cut a check then we wouldn’t have had the right to reconsideration.
Mr. Williams questioned if Mr. VanDonsel was asked by Mr. Schrader to review the standard Moose contract. He answered yes and recalled his conversation in September where Mr. Schrader was concerned that the County remain anonymous so that prices could be negotiated properly and how we do that to accomplish the 2/3 vote for legislative approval. We agreed at that time to use the term, subject to legislative approval for the resolution.
Mr. VanDonsel continued with a spreadsheet also provided on an overhead projector that outlined the hypothetical highs and lows of the potential damages. Mr. Cornell moved to go into executive session with this discussion. Mr. Tagliente objected, preferring to keep the discussion open. With no second to the motion, Mr. Cornell withdrew the motion. Mr. VanDonsel asked for a complete understanding that these figures are speculative only. He reviewed all the information on the spreadsheet, where he used averages and how he arrived at those figures. He added that he didn’t calculate specific performance figures.
Ms. Tytler made the observation that we are not required to buy all properties. Mr. VanDonsel agreed that after the January meeting up til now, we can go back and determine specific properties. We have only heard from the Wood, Cole and Moose attorneys along with the knowledge that Mr. Knickerbocker is representing Abbatiello property and Mr. Lissberger has indicated he is waiting for the March meeting to see how this is resolved. Ms. Tytler numbered County Attorney’s spreadsheet as #37.
Mr. Williams asked Mr. VanDonsel if anyone had come to you to review the Barton & Lajoudice contract (#32) what would have been your advice. Mr. VanDonsel said he didn’t know what he would have said. In hindsight however there were 2 issues that needed be tightened up. When contracts are allowed to be renewed I prefer a letter from the owner that we intend to extend the contract. There was no harm to the County and the rates were honored for the ’04 and ’05 contracts. Secondly, I would have preferred some sort of Resolution from the Legislature to continue the contracts to 2006-2007. We have used a broad interpretation of the contract to include buildings as it appears to be aimed toward highway projects. Mr. Tagliente referred to past practice indicating that this firm has been used for other-than highway projects. Mr. VanDonsel explained that Mr. Bardsley had set up a contract log and we will be adding a column to that to insure these contracts are renewed. My concern is not with Barton & Loguidice but with the liability of insurance associated with this type of situation.
Ms. Tytler asked if it was appropriate to use Barton & Loguidice. Mr. VanDonsel replied yes as they exercised par. 4.1 of the renewal language in the contract. They have been used in the past two years for highway leacheate issues. Mr. Williams asked Mr. VanDonsel if he thought that the County Administrator had the authority to approach Barton & Loguidice for services on other than highway per their contract. Mr. VanDonsel said that the County Administrator has supervisory authority over department heads. Since we do not have a building engineer, the County Administrator would exercise that broad authority.
The Applied Design report was distributed and numbered #38. Mr. Whitt distributed the identified pages referred to in Brian Parker’s report concerning the space studies, numbered #39.
Ms. Tytler said she is feeling the pressure of the timeframe. She said she will be sending her version of the timeline when it is finished. She said she will be meeting with Health Department staff at 4:30 tomorrow and hopes to meet with Mental Health staff this week as well. She asked committee members if they needed additional information. Mr. McKee asked for environmental impact information on the property. Chairman Brown said that Mr. Chambers should be able to provide that information as the highway department was involved in the reconstruction of South Main Street. Mr. Schrader was directed to get that information from Mr. Chambers.
Ms. Tytler asked committee members for their thoughts and opinions of the committee work. Mr. Steger said that property acquisitions are a difficult process for a municipality however he felt that all avenues pursued were appropriate. In order to save the County further dollars he said we should purchase the property, continue the committee to focus on surrounding properties with possible compromises. He added that if this does go to a judge we will need to honor the decision. Ms. Tytler asked Mr. Steger if he has all the information. Mr. Steger said yes and expressed gratitude for department heads providing information. He concluded saying that whatever happens we need to work with the neighbors over there.
Mr. Cornell said he wished we had a little more time as he would like to have seen more on the domino effect of all the property/space needs. He expressed concern spending $218,000. with nothing to show for it. He would prefer buying the property and reselling if necessary. The space issues are valid needs within the County. Mr. Steger agreed with the space needs issue.
Mr. Tagliente asked Ms. Tytler to restate the goals of the committee. Ms. Tytler said they were to review the timeframe, as how things occurred; make suggestions, identify problems and improvements; and identify possible approaches and options. Mr. Tagliente said we have accomplished those goals. Now do we just make statements or decide about the property? Ms. Tytler said it wasn’t up to the six of us to decide. If we are in agreement and want to make a recommendation to the full legislature then we do that. If we don’t agree we should share that information also. We are looking at the best solution that cost the least money. Mr. Tagliente continued that there was talk that all of this was done behind closed doors and questions of illegality. I hope that has been cleared up. I realize we could have done things differently and probably should have. Personally, I never want property attained this way again by the County. We need to wind up. He asked Chairman Brown if she intended on calling a special meeting. Chairman Brown said it would depend on the committee’s recommendation.
Mr. Cornell recommended they meet one more time to discuss options and call for a caucus of both parties to insure all legislators are informed and go from there. Communication is so important at this stage. Ms. Tytler suggested a workshop with all legislators being invited.
Ms. Tytler said that Mr. Daniels
will be gone all this week and Mr. Steger will be gone from the 18th
to the 24th. Mr. Tagliente suggested that Mr. Williams be adopted
to the committee since he has attended all meetings. Mr. Williams asked what
his role would be and Mr. Tagliente said as a member. Chairman Brown
appointed Mr. Williams to the Ad Hoc Committee.
The next meeting was scheduled for Tuesday (3-13-07) at 7 PM in the County Office Building. Mr. VanDonsel offered his staff to assist in drafting their recommendations.
Meeting ended at 8:55 AM
Minutes prepared by Susan Morgan, Clerk
Approved 3/22/07 with addition noted.
Audio/Video available upon request from the Clerk