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State of New York

County of Fulton

Town of Caroga

Minutes of a Caroga Town Board meeting held Wednesday April 22, 2019 at the municipal building located at 1840 State Highway #10 at 7:00 pm with the following persons in attendance by roll call:

Supervisor James K. Selmser - Here

Council Member John Glenn - Here

Council Member Jeremy Manning - Here

Council Member James Long - Here

Council Member Kent Kirch - Here

There were 25 members of the public in attendance.

Supervisor Selmser called the meeting to order at 7 pm with the roll being called. The flag salute followed. He announced that this was a short meeting. We’ve got an agreement that our attorney has drawn up but before that if anybody has any other issues and any other statements they would like to make he would open the floor.

Council Member Glenn asked how Don Travis was he has been ill. Council Member Long stated they would talk in an executive session. Supervisor Selmser stated he was home and expects him to be back working in another week.

Supervisor Selmser stated he has an agreement the attorney drew up that the board has been patiently waiting for, for a number of months. It was originally transmitted – the final draft on April 16th. He and a couple of board members were in contact with the attorney. “There is a document that if the board so desires to move forward and grant approval then I would execute that document and have that signed and transmitted.”

It was asked what is it for. Supervisor Selmser stated it is a general release and waiver an agreement by Balboaa Land Development Corp. to release the town of any potential legal consequences or actions. It allows the town to have a release if the property would be sold or transferred to the Caroga Arts Collective (CAC). It only names them at this time. The resolution only grants the supervisor power/authority to sign that document based on the agreement verbally that Mr. Abdella will also do the same. After that any agreement with Caroga Arts Collective (CAC) would be handled in a public hearing with discussion and answers and information pertaining to that. Council Member Kirch added ultimately a public referendum. This will be put up to the voters to make that decision. This would happen according to the procedures though the Fulton County Board of Elections.

It was suggested to hold the voting during the primary. It would be less costly the supervisor agreed, but noted the governor changed the date of the primary this year. It was doubtful it would happen in June. Council Member Manning stated the town has to be no sooner than 60 days no longer than 75 from the point that the board decides to move forward.

Council Member Long stated the town spends $4,000 a year for voting support from Board of Elections. “Simple elections don’t cost the town very much at all, just several hundred dollars.”

Council Member Manning stated the document doesn’t do anything. It is only active if the public decides to convey it. It is a general release from the town from Balboaa releasing us of the terms of the agreement that was signed by Ottuso back in 2015. Council Member Glenn thought that was rescinded in 2015. Council Member Long explained the process of entering into a contract. “The town cannot unilaterally terminate a contract that it has entered with another party.” Both parties have to amend the contract. Council Member Glenn asked if there was a dispute where would it go. The response from Council Member Long was all the way to the court of appeals. Council Member Glenn was in favor of getting a declaratory judgement from a judge.

It was noted the release is only for the music group.

Comment: Isn’t the town putting the cart before the horse.

Council Member Kirch stated it would be a waste of time to take any other steps as it relates to

CAC without the document signed by George.

Comment: This is a clouded title

Comment: Has any dollar figure been put forth for the purchase of this property by CAC?

Supervisor Selmser stated there was a discussion with them about covering our costs that the town incurred over the past responsibility of ownership of the property approximately $50,000.00.

Comment: So the property is worth about the price of a new truck.

Council Member Long stated the equation has to include the value of avoiding litigation with George Abdella.

Council Member Manning noted the prior town attorney said it would cost $5,000 to put this to a judge to do the initial paperwork to get it going. This could go on and on and on. He stated the town signed this deal with Balboaa back in 2015. A judge may not care if the board rescinded it. But an agreement was entered into with George believing that he had a fulling enforceable contact. A judge could uphold that and say the town is responsible for a fully enforceable contract. It is a risky move he thought. “This release at the very minimum guarantees us is that if the public wanted it and they said the public says they want to get rid of this thing we want to be away from the agreement for good George will say I will not sue ever again over that agreement and hold that agreement to be valid.” Council Member Manning did not want to be on the hook for that forever.

Council Member Glenn stated only one party can do it – it is discriminatory in his opinion.

Comment: This agreement releases us from all liability for a bad decision as long as it goes to the CAC. But if there are other choices… and the town decides… then there is still this liability hanging out there. So what is the point of signing it? Why do we have this agreement? Why do we have to act on this now? Why do we have to call this meeting with 2 days’ notice? Why do we have to sign this immediately when we don’t know who is going to take it. Someone else may come forward. Why do we have to do this?

Council Member Glenn stated there are two other interested parties.

Comment: This seems like bureaucracy turning and it seems like we are setting the stage for something… and lining things up to kind of coerced people to do something.

Council Member Manning stated as far as the board’s responsibility in looking at this from a long term standpoint what is the most likely avenue for success. We don’t have very many options.

Comment: We are not talking about the board’s options. What if this goes to [a vote] there is a groundswell movement to vote against the CAC. If this goes forward we’ve signed an agreement and spent money on an attorney for nothing. Unless you are trying to guide everybody to say we have to sell it to CAC.

Council Member Manning thought the board was putting forth a good plan.

Comment: These people were elected to make these decisions so they are the people in charge at this point.

Council Member Kirch sees why you see it the way you see it. To him this whole thing with CAC and George Abdella and selling Sherman’s, there is no point in having public meetings and taking steps toward signing a sales agreement until that document is signed. “If he hadn’t agreed to do what he is going to do…..”

Comment; Make the document open…..

Supervisor Selmser stated it is either you making the decisions or us making those decisions. You elected us. We are using our best judgement and with dealing with legal documents you deal with attorneys. Our attorney has been in discussion with a second party.

Comment: you are denigrating the value of all properties by doing this. The assessor’s office will have a lot of problems.

Council Member Long noted Mr. Abdella grieved the property down to a couple of thousand dollars.

Council Member Glenn wanted to go for a declaratory judgement. Council Member Long stated that would be rolling the dice. We are acting on advice of counsel.

Comment: a member of the public wanted a copy of the document

Supervisor Selmser stated it won’t be formally consummated until both parties sign it. Then it will be part of the record. Mr. Abdella has not signed it. It is a release.

Comment: I would like to see it back on the tax rolls. They own the Schine property and nothing has been done with that. Why do we want to give them more?

Comment: Mr. Abdella has a hold on us and we can’t do anything else with the property. We know where the board stands we know what you want to do. Any vote would be 4 to 1. One is open to discussion. But what you are doing is a long way from what you were elected to do. You were elected to give us all the information and you are not doing that. You haven’t done it, and you will continue not to do it until you finally push this thing to the point that we have to vote on it. You have the authority to do whatever it is you think is best for the town. My problem is you are trying to push whatever you think is best for the town down everyone’s throat. You are ultimately going to force us to that vote. My complaint is you are not giving us honest information. You are not lying to us you are just not giving us all the information that is out there.

Council Member Manning – we are trying to give you a vote here.

Supervisor Selmser explained the information in the contract will be presented at the public hearing….

Comment: there have been other proposals and all we heard was we looked at the proposals but they are not viable.

Supervisor Selmser noted a committee was appointed by the board. They made recommendations. Since then there have been a couple other informal proposals given to the board. The board felt there was not adequate information. Until that is done they cannot even consider it.

Heated discussion gavel in use

Council Member Manning noted he spoke to the real estate agent on the most recent proposal and spoke at length with them and the particular individual would not discuss the details of the proposal until he was promised the property and the sale. He would not even come to the board. How could we entertain that? Supervisor Selmser stated that proposal had restrictions on it the town board could not commit to.

Comment; so tell us about it

Response: clear title and non-tax payments.

Comment: CAC is not going to pay taxes

Supervisor Selmser – many members of the board have had discussions with the previous owner who stated he will sue the board and tie them up for years.

Comment: Isn’t property owned by the government supposed to go out for competitive bid

Council Member Long – no absolutely not. Council Member Manning responded you can do it either way. If the board is going to put it up for a public vote it is a different set of rules. He stated the board has to show they are making a long term financial decision that is in the best interest of the town but also weigh against public benefit and public interest.

Comment: what guarantee is there that once this property is sold - I know they are going to mortgage the property to do things they need to do – do we agree on that? So what is the guarantee they are going to put the money back into that property and not into the Schine property. What guarantee are you negotiating that something like that won’t happen.

Council Member Manning – they have a right to do that.

Council Member Long – we have the right of first refusal.

Comment: if they have a mortgage the mortgagor has first refusal

Comment: what guarantee does the town have that they will reinvest that money into that property?

Council Member Manning - that is a better question for a public hearing on the contract itself.

Comment: You guys are negotiating – you should have this in the back of your minds.

Council Member Long – we worry about such things we think about such things…

Supervisor Selmser stated there is a fall back plan at least, if they for some reason cease to exist disorganize what would happen – that is part of the legal document that would be presented at a public hearing. Even if you sell it to somebody else with a grand vision there is a lot of obstacles they have to accomplish regarding the zoning and APA, dealing with sewer and water issues….

Comment: if they become insolvent or decide not to continue and they have mortgaged the property what is the plan for the property then.

Council Member Manning – if they mortgage it then the bank takes it over. That is the same for anyone.

Comment: George has made an offer to take the property back and the debt that goes along with it if that should ever happen. (The board had not heard that)

Supervisor Selmser stated George said he made a mistake when he gave it to the town and he wished he’d never done it.

Comment: then give it back

Council Member Manning stated you can’t just give it back the same rules apply. It is a transfer of municipal property so the same rules apply. He did not understand how people don’t want some money for it. We can’t force George to take it back. The same permissive referendum rules apply for that transfer that would apply to this.

It was stated that the CAC said they would pay the local taxes.

Council Member Manning - I don’t think the town should have ever gotten involved in the first place. We can’t afford it – we can’t fix ½ the things in this town hall.

Multiple discussions, disorder, gavel in use.

Comment: I keep saying it that things have happened that have not been made public. You do these things because you think it is in the best interest of the town. When it comes to a vote that is when you will find out whether the town agrees with you or not. What happens if the town says no? Any options you may have had you sent away. It is in the best interest of the town for all options to be out made public so that if in fact this does not come to pass we have some place to go.

The supervisor noted Mr. Kirch was involved on a number of occasions of taking real estate professionals through the property.

Council Member Kirch stated there have been a total of 3 offers for Sherman’s. He stated the idea here is the board is not making the decision; the town’s people will make the decision. The point of tonight is not to make any decisions regarding Sherman’s. It is simply a piece of paper, until George Abdella signs it, and if he signs it, which I am still questioning if he will, then we have a reason to look at this seriously and put it up for a public vote. This is supposed to be confidential because it is not finalized.

Comment: so you are going to honor the stipulation agreement 100%. Yes you are honoring it.

Council Member Long – No absolutely not. That does not bind us in any way. The language is clear that we maintain that there is a dispute.

Comment: There is also a stipulation in the agreement if the town could not fulfill their obligations as George saw fit he would take it back.

The Supervisor stated that he has issues that the town has not maintained it and he thinks we should be putting thousands of dollars in there making repairs. We don’t have the capability of doing that.

Comment: He also said if we do not only sell it to CAC that he would take the town to court

Comment: I would like to know just how much they are offering. They said they had $125,000.00 in a matching fund. I don’t want to give it away for $50,000.00.

Comment: in the original agreement it says the town may not sell the property. Are you amending the original contract?

Council Member Long – this does not even come into force, even if both parties sign it as written, until the moment of a closing.

Comment: why wasn’t this put on the agenda for the next regular board meeting?

Supervisor Selmser stated the board had talked about this in numerous meetings that they were waiting for this document. The attorney would like to consummate this agreement before something changes. They have been working on this since last November. It has been back and forth and idle for a number of months. The board felt it was important enough to take action. Once that is done then the other stuff will follow.

Comment: Shouldn’t this be attached to an agenda that is put on line. Why couldn’t this have waited another week when more people are here?

Council Member Manning asked if the people wanted this to be a summer vote or a fall vote. To be the most viable vote possible to reach as many people as possible this should happen in the summer. In order to have a least two public hearings we have to have time for that to happen. He thought mid-May and June. This has been going on for eight months; it’s time to make a decision on something.

Council Member Glenn stated there is no U-turn here. Once we decide we are going with CAC and CAC only there is no return. Everything should be transparent here. The public should have every piece of documentation we have.

Council Member Long said not true. The voters will vote.

Council Member Manning – we are not making a decision; this has been going on a long time.

Final gavel.

Supervisor Selmser stated there has been much discussion, good discussion it’s allowed numerous people to speak and present their thoughts. This is a first step in a couple steps that will happen with at least two more meetings to discuss the issues and the choices. We have to start some place. “This is my decision that we start and address it tonight and then the rest of it will progress as we receive this document back. We may not receive it back. Someone may have a change of heart and if that happens then we don’t go to step two.” “Right” Council Member Long stated. Supervisor Selmser then indicated that action should be taken tonight.

RESOLUTION #2019-036 to authorize Supervisor Selmser to sign this agreement to that binds George Abdella but in no way binds the Town of Caroga to sign it and have it witnessed/notarized and delivered to George with the hopes that George Abdella with the hopes that he will sign it as well was offered by Council Member Long at the Caroga Town Board meeting held Monday April 22, 2019 at Caroga Town Hall.

WHEREAS, a the Caroga Town Board members received a document entitled “General Release and Waiver” via Email several days ago, and

WHEREAS, Supervisor Selmser called a meeting on Thursday April 18th 2019 for Monday April 22, 2019 at 7 pm, now therefore be it,

RESOLVED, that Supervisor Selmser is hereby authorized to sign this agreement that binds George Abdella, but in no way binds the Town of Caroga, to sign it, and have it witnessed/notarized and delivered to George, with the hopes that George Abdella will sign it as well.

Seconded by Council Member Manning

Discussion: Council Member Kirch stated given all the discussion tonight that this document if you sign it is not a decision its’ simply a first step. In fact if we have public hearings I know there will be at least two and based on the input from those public meetings we will only decide whether or not to even progress to the next step. The next step would be to actually accept the agreement contingent upon a public vote. There are several more steps that have to be completed before anything’s going to happen.

Council Member Manning stated and this does not become a live document until it passes a public vote.

Council Member Long - this is just a piece of paper until a closing, and if George signs this, it becomes a public document. As the webmaster I am going to put it up on the web.

Supervisor Selmser stated it was all contingent on the other actions to happen. If they don’t happen this is null and void. (A resolution to accept the contract and to put it up for public vote)

It was asked if the terms expire if it doesn’t get sold to the CAC.

Supervisor Selmser stated the terms are if we do not agree to a contract and a vote does not pass to sell it to them it is null and void.

Council Member Glenn suppose this doesn’t fly does that mean the town can sell it to …..

Council Member Long –“no way”

The supervisor responded that decision would be made after a public vote.

Roll Call Vote:

Supervisor James K. Selmser - Yes

Council Member John Glenn - No

Council Member Jeremy Manning - Yes

Council Member James Long - Yes

Council Member Kent Kirch – Yes

The supervisor stated he would make a trip to the attorney’s office tomorrow morning.

At 7:52 pm Council Member Long made a motion to enter into an executive session to discuss a medical issue and to discuss an employment history issue and to discuss…”oh we’ve already taken care of this.” Council Member Kirch seconded the motion. All board members were in favor of the motion.

At 8:47 pm Council Member Long made a motion to exit from the executive session. The motion was seconded by Council Member Manning. All board members were in favor of the motion.

At 8:48 pm Council Member Long made a motion to adjourn. The motion was seconded by Council Member Kirch. All board members were in favor of the motion.

Submitted,

Linda M. Gilbert, RMC, CMC

Caroga Town Clerk