Friday, January 23, 2009

News That Matters - January 23, 2009 - More on Tilly Foster

News That Matters
Brought to you by PlanPutnam.Org

Good Friday Morning,

I'm sorry this column is late today but I've spent the morning unpacking my pony, my suits and pictures of the pets. It turns out I'm not going to Washington DC after all, that Congresswoman Kirsten Gillibrand is, instead. For those of you who read this column you know I've always said she's right for the job and the Governor has made the correct choice and I wish her well. I believe we will be well served.

Tilly Foster All Over Again

Sadly, I need to start this portion of the column with a caveat I want you all to carefully read and understand:

There is a belief out there that those of us who take issue with the contract want the deal to fail. Nothing could be further from the truth.

I'm dismayed with County Legislators who claim otherwise.

I cannot identify a single person who does not want to see Tilly Foster reach its full potential as a valued resource for our county and the region.

I cannot think of anyone who has a desire to 'go back' to the olden days when the farm was a collection of under-used buildings.

I have never spoken to anyone who is not enthused about the prospects for The Farm and wishes - above all else - to see them succeed.

I come to this as someone who is well known for holding the best interests of my town, my county and this region at heart first and foremost. I have no financial considerations. I've never been formally introduced to George Whipple. I bear no ill will nor hidden motives. Everything is above board and focuses on governmental responsibility and nothing else. I've left emotions about The Farm at the door and enter this discussion from a purely objective perspective and you should too.

And if there's anyone out there who doubts this, be brave enough to say so.

It's a shame I have to say all that but damn, some people are just so dense.

After the column I hastily posted last evening on the Tilly Foster contract, Ann Fanizzi took a welcome break from the attack to offer information which, at least to me, makes the TF contract picture more complete and bolsters suspicions. In part she wrote:

"The land off Pugsley and Barrett Roads that Jeff Green refers to, I believe, is not owned by anyone's favorite developer as he puts it, but Harvey Schulweiss, who had proposed development of 327 acres for over 20 years.  During that time, the only thing that has not changed is the name: Campus at Fields Corners.  However, through litigation and market forces, the development has been changed and reduced.  Litigation initiated by the town has come and gone with a settlement that would give Harvey the right to build 143 townhouses instead of the 350 and considerably reduced the commercial space from the initial 1 million+ sq. ft. I will have to check the exact figure..."

If she's right, now we know why the term of the proposed contract is so long: someone needs the assurance that a working Farm Museum will be at their front door in order to secure the highest return on their private real estate investment. But we still do not know why Paul Camarda has been seen on the Farm with Mr. Whipple on a pat Saturday afternoon. It could be nothing more than an attempt at securing a donation from Putnam's favorite developer. It could be nothing more than a friendly visit. But then, we also don't know why it' been reported that hay cut from the farm ended up at a nearby construction site.

Oh! Did I say Museum? Well hush mah mouth! It's not a museum anymore! It's an exhibit. See, there's some questions raised last evening about what requirements are involved in calling something a museum which might involve the State Board of Regents so that "museum" means something specific. In order to avoid what might be a bottleneck, the Physical Services Committee asked the county attorney to strike the word "museum" from the entirety of the contract and replace it with "exhibit".

There was also a question about the legality of the name listed within the contract. The contract refers to "George Whipple" and a point was made that his full name is "George C. Whipple III" which appears in other parts of the contract. While that might seem unimportant to you, just try to get your car registered if your two forms of ID do not have your name exactly the same on them. If one is missing your middle initial the state will not accept it for you're not who you say you are. If DMV is that tough, you'd think the county could be equally as tough on a 40 year business deal.

In Article Two, the term of the contract still has that pesky provision wherein if the lessee calls it quits, dies, or is held hostage by Panamanian terrorists, the county has the *option* to renew or not with the remaining organization, Preserve Putnam. Cool, right? But the farm remains in their hands under force of this contract for a full 12 months before we can act. That's not right.

Article Three still says, "...To use its best efforts to achieve self-sufficiency..." I asked the lawyers in the audience last night to define "best efforts" and while one shook his head to indicate that it cannot be defined, Ms. Bumgarner, the county attorney, seemed to dismiss this as an issue. But it's the key to the entire contract. Moreover, the Article refers to a document, "Plan to Save Tilly Foster Farm (Three Years to Self-sufficiency)" which is an attachment to the contract (which is not attached to the copies handed out) which is supposed to be used as a guide. A request was made to turn that guide into a business plan with identifiable targets against which the contract can be measured. I mean, you either have a business plan or you have a dream and it would not be prudent for the government to hope for a dream when it's in their purview to just as easily shoot for the business plan.

Section G of the same article says, "That LESSEE will, to the best of its abilities, attempt to adhere to the desires of the Putnam County Executive and the Putnam County Legislature with respect to the long term plan for the property..."  This was inserted to make you believe you have say over what goes on at the farm but read the language again (I'll wait...) the language is as fuzzy as anything I've ever seen.

But that section also points out another flaw in the contract. Note the pronoun in, "best of its ability..." Its. Okay, so, are we dealing with George Whipple, George C. Whipple III, Preserve Putnam or with The Society for the Preservation of Putnam County Antiquities and Greenways, Inc.? Who, exactly, is the LESSEE and who, exactly are we dealing with? The contract is not clear on that and it needs to be. It should not use the terms interchangeably.

With all the important changes required in the contract and if Legislator Hay was telling the truth about the deluge of emails, phone calls and letters the county has received on this thing, and if Vinnie Tamagna was also telling the truth about how they're listening, I have to wonder how a provision (Article IV) banning rodeos made it in but nothing about the length of the lease (the publics most pressing concern) and the general lack of enforceability are still absent. Were they listening or just playing at listening?  You decide.

Alright, moving along here... Article VI talks about capital improvements made to The Farm. The contract requires that the Watershed Agricultural Council must approve projects if they're required to. Well, that's always the case anyway and if any of those improvements cost more than $25,000 it must get approval from the county Executive. But the LESSEE is only required to notify the CE within 30 days of the commencement of a project which is not enough time to adequately assess its possible impacts nor run through SEQRA if it should be required.

While we're talking about SEQRA... if the use of The Farm changes substantially from what was originally proposed when SEQRA was done on the property, then we have to go through a full SEQRA review once again. Permits for its use were granted based on a certain level of use and if that should change we'd be in violation. If, as the plans state, a full service restaurant and bed and breakfast are envisioned, who will upgrade the already stressed septic systems? The LESSEE? The County? It's not defined.

Article VII states, "the LESSOR (that's us) shall further permit the LESSEE to have exclusive use of any and all hay which may be harvested at the premises." This means that the LESSEE can sell the hay, give it away to a friend or use it at the farm. This is a profit center for the LESSEE, profits the county might have earned had it been running the farm properly.

Article IX still has a pesky "out" for the LESSEE in case of fire or extensive damage to a building at The Farm. It's at his discretion to opt out of the contract if he thinks the damage was so severe that he can no longer complete the agreement. In any case, it's the LESSOR (that's us again) who is responsible for reconstruction. You'd think that would come from the insurance company? Normally you'd be right. But this is no normal commercial lease agreement. Under the current terms the LESSEE is limited to carry insurance that does not exceed $1000 a month (increases to be set by the Commissioner of Finance based on the CPI.) Anything over and above that number the county - at its option - has to pay. Do you believe for a moment we wouldn't want the fullest possible insurance coverage? How much will that cost? We have no idea. Oh, someone knows, but they're not talking.

"Furthermore, in the event that the insurance premiums exceed the maximum amount required to be spent by the LESSEE, as outlined above, than and in that event, within 20 days after being presented with notice of the premium amount, the LESSOR may terminate this lease agreement upon 5 days written notice to the LESSEE"

Or we can pick up the tab.

The Utility Bills: This was another sticking point as the original agreement called for the county to pick up the utility bills for the duration of the agreement. The latest version says, "LESSOR shall be responsible for the payment of utilities, including electricity, fuel oil, gas and water until such time as the county is able to install individual meters on all buildings located on the premises. As said utility meters are installed, LESSEE shall become responsible for the payment of the costs of electricity utilized in each individual building." There's no timetable involved here so the county could wait years before meters are installed. But then the lease gets tricky again with, "Additionally, a "house meter" shall also be installed on the premises, such that the LESSOR shall continue to be responsible for the use of electricity for all exterior areas of the property."

We pay for all outside lighting. Did you see anything in there about who pays for oil, gas and water? Not the LESSEE - we do.

Article XIII says that "the LESSEE agrees not to remove from the premises any tree, shrubbery, or vines (except for ordinary farming operations consistent with the WAC)". Just for the record, the Watershed Agricultural Council feels that logging (they call it 'treating') is an acceptable agricultural use and so can commence on The Farm if the LESSEE should decide.

Article XV talks about subleasing and this is another one of those places where the lawyers who drafted this contract should be disbarred for fuzzy language. The description of the location of future residence for the Putnam Arts Council was so bollixed up that no one in the room could define exactly where they were or are going to be. The County Attorney seemed nonplussed, a county rep thought it was obvious but the rest of us scratched our heads wondering. While I cannot say for certain, I do believe the Arts Council and the Attorney will revisit this to clear up the language. The Arts Council also finds an increase in their rent.

Then the section goes on to say that the County can force the termination of a sublease with the Community Gardens or the Arts Council. So while the LESSOR has stability for 40 years, the Council does not for it can be booted at any time and for any reason and all their rents go, not to the county, but to the LESSEE. When the LESSEE needs their space for a commercial enterprise, they're gone!

Article XVIII: Termination - is a minefield! Okay, if we don't like what's going on over there we can, with 12 months notice(!), giving the LESSEE an opportunity to get their shit together, break the agreement. If we do that we're required to reimburse for capital improvements. But catch this: "... and which were paid for by funds obtained by other than pubic or private grant funds." So, if the LESSEE pours money into the place and fails to make it work, there's no problem - we just pay him back. If say, a caterer moves in and redesigns the kitchens on their dime and the lease fails, we have to reimburse them, too. In other words, this is a No Risk contract with the taxpayers possibly footing the bills.

That's enough, but you get the idea.

Lastly here, the lease is a mess. It was written by amateurs playing at being lawyers and when we're shelling out $110,000 to a county attorney we should expect more. We should expect the language to be consistent and we should expect the county to be fully protected at all times and under every circumstance. That's not in the lease. Its the sweetheart deal of sweetheart deals and your interests as citizens are not being served.

This could be a great opportunity for the county and I know of no one who thinks or wishes otherwise. But it's got to be *right* and unless the Legislature, the County Executive's office and the proposed LESSEE desire that the taxpayers are considered first and foremost, this lease should be burned and those who put it together disbarred.

Yeah I know, strong words coming from a non-lawyer but sage ones nonetheless.

And for today at least, that's the News That Matters.

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