City of Newburgh Historic Preservation Officer Lynn Eberle will offer the Board Training Session for the Architectural Review Commission (ARC) at the Newburgh Heritage Center, (former Grand Street Courthouse) at 123 Grand Street.  Members of the Zoning Board and the Planning Board, as well as other City boards and interested parties are welcome to attend.

Julian Adams, Certified Local Government Coordinator from the New York State Historic Preservation Office, will be the guest speaker.  The agenda will include:

• Secretary of the Interior’s standards
• New York State Office of Historic Preservation (SHPO) standards
• Professionalism vs. Emotionalism
• Terminology
• State and Federal frameworks and programs and how you fit
• Other Historic Preservation Organizations, statewide and nationwide
• Knowing your preservation law
• Design review
• Compatible new constructions
• Tax credits
• Planning and funding the revitalization process- do’s and don’ts
• The benefits of National Register status

At the special Bond Resolution Work Session held Monday night, Councilwoman Christine Bello announced that she and Assemblyman Tom Kirwan have called for a State investigation by the NY Comptroller’s office into the proposed $6.325M Bond.

According to Kirwan’s letter to the Comptroller,

…A new bond is being proposed for an additional $6,325,000 to cover additional costs – over $2,000,000 of which is for removal of newly discovered asbestos. Two of the principals from whom the city bought the building are the owners of the engineering firm which handles all of the city’s engineering problems.

One of the questions that Ms. Bello has is why didn’t the engineers know about the existing asbestos, and if they did know, why was this sprung on the City after the sale? The State of New York has an interest in this because we have agreed to pay one-third of all interest payments. As the cost goes up, so does the cost to the state. Another question from Ms. Bello is why isn’t the city suing the engineers who, in addition to making money on the sale of the building, now stand to make even more money as the result of either their ineptitude or deliberate misrepresentation on the presence of the asbestos.

 
 
 
 
 
 
 
 
 
At the work session meeting, when Councilwoman Bello made her announcement the attending audience broke into applause:

The session began with a lengthy chronology of Den Cass, the partnership that owned Broadway School, by Economic Development Director Bob McKenna. Councilwoman Marge Bell followed with a Den Cass chronology of her own culled from newspaper clippings which she read and was both corrected and corroborated by McKenna (see here for a third chronology of Den Cass, here for a representation on asbestos by Hauser, and here for its Certificate of Formation.)

Councilwoman Bell argued that the city should end its relationship with the current consulting engineer Hauser and hire an in-house engineer:

It’s time to award another Closed Door Award. This one goes to City Manager Jean Ann McGrane and Economic Development Director Robert McKenna for shutting out the public to a meeting that had a majority of the city council present and thus fell under the Open Meetings Law.

According to Jenny Loeb, a community organizer for Community Voices Heard, she and one of her organization’s members, Maretta Melvin, endeavored to attend a meeting this evening the council held to discuss the Master Plan. Mayor Valentine, Councilwoman Angelo, and Councilwoman Bell were already in attendance when Ms. Loeb and Ms. Melvin were asked to leave.

Marge Bell expressed concerns that it should be an open meeting and that closing it would be a violation of the law.

However, both Robert McKenna and Jean Ann McGrane told Ms. Loeb the meeting did not fall under the Law and that she and Ms. Melvin were not welcome. Ms. Loeb explains that “they said it was considered ‘staff providing information.’ We asked if the Council members were speaking as well, and they confirmed that they were.”

To shed light on how the City Council broke the Open Meetings Law, I turn to Robert Freeman, Executive Director of the New York State Committee on Open Government. The following text is transcribed from the video below, recorded during Mr. Freeman’s visit to the Newburgh Free Library in the fall of 2006.

What is a meeting?

The Open Meetings Law applies to meetings of public bodies. A public body is a group of two or more, that would either be elected or appointed to carry out some sort of governmental function collectively as a body.

Like a city council, a school board, a town board, a planning board, a zoning board of appeals, a state assembly or senate; all of those groups of people, who function collectively as a group, constitute public bodies required to comply with the Open Meetings Law.

But back in 1977, the law defined the term “meeting” to mean the formal convening of a public body for the purpose of officially transacting public business.

Well, gee, all over the state, all kinds of boards and councils and committees were saying, look, we’re not conducting a meeting, we’re just going to talk. We’re not going to vote, we’re not going to take action. We won’t be transacting public business. This isn’t a meeting, it’s a workshop, it’s a work session, it’s a study session, it’s everything but a meeting.

Now, I have no idea whether there’s anybody here today who might have been on the city council in 1978, but the contention was that the so-called work session was held solely for the purpose of discussion and there’s no intention to take action were not meetings, and that they fell beyond the coverage of the Open Meetings Law.

Well, anybody here from the Times Herald Record?

Well, they sued. And they won. And the case went all the way to the Court of Appeals, the state’s highest court, and the Court of Appeals said very simply, that any time a majority – a quorum, if you will – gathers for the purpose of conducting public business, that’s a meeting covered by the Open Meetings Law, even if there’s no intent to take action, irrespective of the manner in which the gathering may be characterized as.

Now, I know that the city still has work sessions, but they’re open to the public.

Right? Damn well better be. They have to be open.

Thus, even though the meeting was characterized as “staff providing information,” because there was a quorum, the meeting should have been open to the public.

Ms. Loeb believes the council may have been trying to escape her organization’s scrutiny. CVH is engaged in a campaign “to get [the council] to support better protections for affordable housing for Newburgh residents in the Master Plan.”

Will it take another lawsuit to assure the council complies with the law?

Both of those agencies reported that they used it; they used it as a tool; and they used it to their opinion to great success…
However, when I asked them what kinds of problems they dealt with, neither of those jurisdictions deal with the kind of street-level population that we do, especially come the summer months… ‘They don’t see anything like what we see here.’

One statute of interest to the Chief was the City of Troy’s provision to hold parents responsible in addition to the children. “On second offense, [the City of Troy] subjects both the parent and the child to 25 hours of community service.”

He concluded that

the experience, by in large, with everyone that I spoke to, was that it [a curfew] was an effective tool, and they would recommend it.

The council continued discussion on the curfew; concerns included what would happen if the child was brought home by the police and no parent or caregiver was present.

City Manager JeanAnn McGrane concluded that they would conduct more research of how curfews worked in other places, even outside of New York State, in an effort to establish a best practice.

City of Newburgh Industrial Development Agency:
Mayor Nicholas Valentine, Chairman
Councilwoman Regina Angelo
Martin Boone
Councilman George Bowles, Jr.
Councilman Salvatore Cracolici
Councilwoman Mary Ann Leo-Dickinson
Darren McCurry

On July 31, 2006, four documents were recorded and filed with the Orange County Clerk’s Office in Goshen, New York.

Document 1: Deed transferred from the City of Newburgh Industrial Development Agency to 132 Broadway Associates, LLC
File #20060082551, Deed C/BK 12218 PG 0527, Recorded/Filed 07/31/2006/14:31:07 [Bold emphasis below is added by The Newburgh Advocate]

WITNESSETH, that the Grantor [CITY OF NEWBURGH INDUSTRIAL DEVELOPMENT AGENCY], in consideration of $10.00, and other good and valuable consideration, paid by the Grantee [132 BROADWAY ASSOCIATES, LLC], does hereby remise, release and quitclaim upon the Grantee, is successors, or assigns of the Grantor forever,

ALL those certain plots, pieces or parcels of land, with the buildings and improvements thereon erected, situate, lying and being in the State of New York, County of Orange, and the City of Newburgh, more particularly described on Schedule A…

Schedule A lists:

1. 8-12 Lander St. (SBL:30-3-22)
2. 14-16 Lander St. (SBL: 30-3-21)
3. 132-134 Broadway (SBL: 30-3-24)
4. 136 Broadway (SBL: 30-3-25)
5. 138 Broadway (SBL: 30-3-26)
6. 140 Broadway (SBL: 30-3-27)
7. 142 Broadway (SBL: 30-3-28)
8. 142A Broadway (SBL: 30-3-29)
9. 144 Broadway (SBL: 30-3-30)
10. 148 Broadway (SBL: 30-3-32)
11. 6-8 Johnston St. (SBL: 30-3-33)
12. 14A-16 Johnston St. (SBL: 30-3-37)

The Grantee [132 Broadway Associates] herein shall undertake, at its sole cost and expense, to construct a building (or buildings) with approximately one hundred thousand (100,000) square feet in the aggregate suitable for commercial, light industrial, office, educational, and/or retail use, or a combination thereof, in accordance with the performance schedule attached hereto and made a part here of as Schedule B together with an area of public space approved by the City of Newburgh (such construction is hereinafter referred to as the “PROJECT”). IDA shall cooperate fully with the Grantee herein in any and all applications, proceedings and appeals made or prosecuted by or on behalf of the Grantee herein in connection with the PROJECT, and IDA agrees to execute and deliver all documents, consents or authorizations reasonably required of IDA by any governmental authority with respect thereto.

Schedule B states:

PROJECT Progress Benchmarks

1. Complete demolition of buildings – 90 days from June 30, 2006.
2. Receipt of Planning, Zoning and ARC approvals – 180 days from June 30, 2006
(GRANTEE [132 Broadway Associates, LLC]) must apply for same within 60 days of June 30, 2006).
3. Issuance of Building Permit – 9 months from June 30, 2006.
4. Issuance of Certificate of Occupancy for all of PROJECT – 30 months from June 30, 2006. A temporary Certificate of Occupancy shall be acceptable provided it is replaced with a permanent Certificate of Occupancy within sixty (60) days of its issuance.

CITY OF NEWBURGH INDUSTRIAL DEVELOPMENT AGENCY
By: [signed] Robert H. McKenna
Administrative Director

As of the date which is thirty (30) months from June 30, 2006, if it is determined upon an inspection by the City of Newburgh Code Compliance Supervisor that the performance requirements of said Schedule B have not been completed timely or the completion time for such has not been extended by IDA in writing, the Grantee [132 Broadway Associates, LLC] herein shall, within ten (10) business days fro the service of a notice of said determination upon it… reconvey good and marketable title to the property described in Schedule A herein to IDA.

…TOGETHER with all right, title and interest if any, of [the IDA] in an to any streets and roads abutting the above described premises to the center lines thereof,
TOGETHER with the appurtenances and all the estate and rights of the Grantor in and to the said premises,
TO HAVE AND TO HOLD the premises herein granted unto the Grantee, its heirs, successors and assigns forever.

IN WITNESS WHEREOF, Grantor has hereunto set its hand and seal the day and year first above written.

Document 2: Mortgage between MORTGAGOR: 132 Broadway Associates, LLC; Gemma Development Company, LLC; 10 Johnston Street Associates, LLC; RAC Development of Newburgh, LLC; AND the City of Newburgh Industrial Development Agency and MORTGAGEE: Manufacturers and Traders Trust Company
File #20060082552, Mort/BK 12218 PG 0534, Recorded/Filed 07/31/2006/14:31:07 [Bold emphasis below is added by The Newburgh Advocate]

(b) The obligations and agreements of the Agency contained herein or therein shall not constitute or give rise to an obligation of the State of New York or the City of Newburgh, New York, and neither the State of New York or the City of Newburgh, New York shall be liable thereon… Neither the members of the Agency, nor any person executing this Mortgage on its behalf shall be liable personally under this Mortgage nor recourse shall be had for the payment of the principal or interest on the indebtedness evidence by the note or any claim based on the mortgage or otherwise in respect hereof, or based upon or in respect to this Mortgage or any modification of or supplement hereto against any past, present or future member, officer, agent or employee, as such, of the Agency or any successor or political subdivision, either directly or through the Agency or any such successor, all such liability of such members, officers, agents (except for the Borrower), servants and employees being, to the extent permitted by law, expressly waived and released by the acceptance hereof and as part of the consideration for the execution of this Mortgage. Any judgment or decree shall be enforceable against the Authority only to the extent of its interest in the property and any such judgment shall not be subject to execution on or by a lien on assets of the agency other than its interest in the property.

IN WITNESS WHEREOF, this Mortgage has been duly executed by Mortgagor the day and year first above written. [June 30, 2006]
132 BROADWAY ASSOCIATES, LLC
By: [signed] Robert Carchietta, Manager/Member

GEMMA DEVELOPMENT AGENCY, LLC
By: [signed] Robert Carchietta, Member

10 JOHNSTON STREET ASSOCIATES, LLC
By: [signed] Robert Carchietta, Member

RAC DEVELOPMENT OF NEWBURGH, LLC
By: [signed] Robert Carchietta, Member

37. PROVISIONS RELATING TO THE AGENCY. Notwithstanding any other terms or conditions contained in this Mortgage:
(a) This Mortgage is execute by the Agency solely for the purpose of subjecting its rights to the rights of the Mortgagee and for no other purpose. All representations, covenants, warranties are hereby deemed to have been given by the Borrower and not by the Agency.

27. (c) Upon the happening of an Event of Default, whether or not foreclosure proceedings have been instituted, Mortgagor shall, upon demand, surrender possession of the Premises to Mortgagee.

26. ENVIRONMENTAL, REPRESENTATIONS, WARRANTIES AND INDEMNIFICATION. Mortgagor represents and warrants, and continues to represent and warrant as long as this Mortgage is in effect, to Mortgagee that (a) to the best of Mortgagee’s knowledge, Mortgagor and the Premises are in compliance with each statute, regulation or other law and each judgment, order or award of any court, agency or other governmental authority or of any arbitrator (individually an “Environmental Requirement”) relating to the protection of any water, water vapor, land surface or subsurface, air, fish, wildlife, biota or other natural resources or governing the use, storage, treatment, generation, transportation, processing, handling, production or disposal of any chemical, natural or synthetic substance, waste, pollutant or contaminant (collectively “Regulated Materials”), (b) Mortgagor has not been charged with, or has received any notice that such Mortgagor is under investigation for, the failure to comply with any Environmental Requirement, nor has Mortgagor received any notice that Mortgagor has or may have any liability or responsibility under any Environmental Requirement with respect to the Premises or otherwise, (c) to the best of Mortgagee’s knowledge, the Premises have ever been used for (i) the storage, treatment, generation, transportation, processing, handling, production or disposal of Regulated Materials, except as permitted by law, (ii) a landfill or other waste disposal site or (iii) military purposes, (d) no underground storage tanks are located on the Premises, (e) the environmental media at the Premises do not contain Regulated Materials beyond any legally permitted level, (f) to the best of the Mortgagee’s knowledge, there has never been any release, threatened release, migration or uncontrolled presence of any Regulated Materials on, at or from the Premises or, to the knowledge of the Mortgagor, within the immediate vicinity of the Premises and (g) Mortgagor has not received any notice of any such release, threatened release, migration or uncontrolled presence… If at any time Mortgagor obtains any evidence or information which suggests that potential environmental problems may exist on, at or about the Premises, Mortgagee may request Mortgagor, at Mortgagor’s own cost and expense, to conduct and complete investigations, studies, sampling and testing with respect to the Premises requested by Mortgagee. Mortgagor shall promptly furnish to Mortgagee copies of all such investigations, studies, samplings and tests. Mortgagor shall (a) conduct and complete all such investigations, studies, samplings and testing, and all remedial, removal and other actions necessary with respect to the Premises, in accordance with all applicable Environmental Requirements and promptly furnish to Mortgagee copies of all documents generated in connection therewith and (b) defend, reimburse, indemnify and hold harmless Mortgagee, its employees, agents, officers and directors, from and against any claims, demands, penalties, fines, liabilities, settlements, damages, costs or expenses of whatever kind or nature, known or unknown, contingent or otherwise, arising out of, or in any way related to, the violation of, or other liability or responsibility under, any Environmental Requirements, or the release, threatened release, migration or uncontrolled presence of any Regulated Materials on, at or from the Premises including attorney and consultant fees, investigation and laboratory fees, court costs and litigation expenses…

CITY OF NEWBURGH INDUSTRIAL DEVELOPMENT AGENCY
By: [signed] Robert H. McKenna
Administrative Director

WITNESSETH, to secure (a) the payment of indebtedness in the principal sum of ONE MILLION FOUR HUNDRED EIGHTY THREE THOUSAND ($1,483,000.00) DOLLARS, lawful money of the United States, together with interest thereon and other charges with respect thereto, to be paid according to certain demand note, dated on or about June 30, 2006, made and delivered by Mortgagor to Mortgagee or (the “Note”)… Mortgagor hereby mortgages to Mortgagee, as continuing and collateral security for the payment of any and all indebtedness, liabilities and obligations of Mortgagor to Mortgagee… the premises described on the attached Schedule A. [Note; same properties listed in Schedule A above.]

Document 3: General Assignment of Rents between ASSIGNOR: 132 Broadway Associates, LLC, and ASSIGNEE: Manufacturers and Traders Trust Company
File #20060082554, A/LR/BK 12218 PG 0601, Recorded/Filed 07/31/2006/14:31:07 [Bold emphasis below is added by The Newburgh Advocate]

WHEREAS, Assignee desires to grant Assignor a conditional license to collect and use the income derived form the Premises and to take certain leasing actions in the ordinary course of business.

4. …monies in the amount of $1,483,000.00 were loaned thereon and the mortgage tax was duly paid.
Mortgage tax paid $15,571.50.

4. LICENSE TO TAKE CERTAIN LEASING ACTIONS.

(b) The license granted by Assignee under this Section 4 does not extend to… (iv) the grant of any option to purchase any part of the Premises or any right of first refusal or (v) any Leasing Action that results in a Lease (A) to an affiliate of any Assignor, (B) with a rental rate which is less than a reasonable market rental rate, (C) permitting prepayment of rent more than one month in advance or (D) demising more than twenty percent (20%) of the rentable space of the Premises or such higher or lower percentage as Assignee may from time to time agree to in writing…

255 AFFIDAVIT OF EXEMPTION, GENERAL ASSIGNMENT OF RENTS, June 30, 2006

IN WITNESS WHEREOF, Assignor has executed this Assignment as of the day and year first above written.

132 BROADWAY ASSOCIATES
By: [signed] Robert Carchietta, Manager/Member

Document 4: Mortgage Consolidation Modification and Extension Agreement between 132 Broadway Associates, LLC; Gemma Development Company, LLC; 10 Johnston Street Associates, LLC; RAC Development of Newburgh, LLC; the City of Newburgh Industrial Development Agency AND Manufacturers and Traders Trust Company
File #20060082553, M AG/BK 12218 PG 0565, Recorded/Filed 07/31/2006/14:31:07 [Bold emphasis below is added by The Newburgh Advocate]

WITNESSETH:

WHEREAS, the Mortgagee is the owner and holder for the value of the following Mortgages, together with the notes or other evidences of indebtedness secured thereby, to wit:

1. Mortgage made by Mortgagor to Manufacturers and Traders Trust Company, in the principal sum of $30,000.00 dated May 24, 2005 and recorded in the Orange County Clerk’s Office on June 6, 2005, in Liber 11866 of Mortgages at Page 377, on which there is now due and owing the unpaid principal sum of $30,000.00.

2. Mortgage made by Mortgagor to Manufacturers and Traders Trust Company, in the principal sum of $293,500.00 dated June 23, 2004 and recorded in the Orange County Clerk’s Office on July 14, 2004, in Liber 11554 of Mortgages at Page 911, on which there is now due and owing the unpaid principal sum of $293,500.00.

3. Mortgage made by Mortgagor to Manufacturers and Traders Trust Company, in the principal sum of $293,500.00 dated June 23, 2004, and recorded in the Orange County Clerk’s Office on July 14, 2004, in Liber 11554 of Mortgages at Page 911, on which there is now due and owing the unpaid principal sum of $293,500.00.

4. Mortgage given by the Mortgagor to 132 Broadway Associates, LLC bearing even date herewith in the principal sum of $1,483,000.00 which is intended to be recorded simultaneously herewith.

WHEREAS, the Mortgagor has executed and delivered to the Mortgagee its Restated Non-Revolving Grid Note in the principal sum of $2,100,000.00 which Note is secured by the mortgages referred to and consolidated herein, with interest as stated in said Note and to be paid in accordance with said Note…

3. …a certain Mortgage Modification and Extension Agreement dated as of June 30, 2006, was entered into between MANUFACTURERS AND TRADERS TRUST COMPANY, as mortgagee, and 132 BROADWAY ASSOCIATES, LLC, as mortgagor, and is to be recorded simultaneously herewith, with regard to the following mortgages:

NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements of the parties, and for the purpose of carrying out the intention above expressed, the Mortgages and the Mortgagor hereby mutually covenant and agree as follows:

That the liens of the said Mortgages, hereinabove mentioned, hereby are spread, consolidated and coordinated so that from and after the date hereof the same are hereby consolidated into one Mortgage covering the premises herein described, running concurrently as one Mortgage, and constituting a single first lien upon the premises mortgage in the amount of $2,100,000.00…

CITY OF NEWBURGH INDUSTRIAL DEVELOPMENT AGENCY
By: [signed] Robert H. McKenna
Administrative Director

2. RESTATED NON-REVOLVING GRID NOTE

Simultaneously herewith, the Mortgagor shall make and execute a Consolidated Mortgage Note in the principal amount of TWO MILLION ONE HUNDRED THOUSAND AND NO/100 ($2,100,000.00) DOLLARS to the Mortgagee.

RAC DEVELOPMENT OF NEWBURGH, LLC
By: [signed] Robert Carchietta, Member

3. MATURITY DATE

All of the principal, interest and any other charges that are owned under the Mortgages, and the Restated Non-Revolving Grid Note must be paid in full by December 31, 2006.

10 JOHNSTON STREET ASSOCIATES, LLC
By: [signed] Robert Carchietta, Member

36. MISCELLANEOUS. This Mortgage is absolute and unconditional…

GEMMA DEVELOPMENT AGENCY, LLC
By: [signed] Robert Carchietta, Member

IN WITNESS WHEREOF, this Mortgage has been duly executed by Mortgagor the day and year first above written.

In the Presence of:

MAUFACTURERS AND TRADERS TRUST COMPANY
By: [signed] Mark Stellwag, Admin. Vice President

132 BROADWAY ASSOCIATES, LLC
By: [signed] Robert Carchietta, Manager/Member

255 AFFIDAVIT, MORTGAGE MODIFICATION AND EXTENSION AGREEMENT

4. That new money in the amount of ONE MILLION FOUR HUNDRED EIGHTY THREE THOUSAND AND NO/100 ($1,483,000.00) DOLLARS was loaned thereon and the mortgage tax in the amount of $15,571.50 was duly paid.

1. Mortgage made by Mortgagor to Manufacturers and Traders Trust Company, in the principal sum of $30,000.00 dated May 24, 2005 and recorded in the Orange County Clerk’s Office on June 6, 2005, in Liber 11866 of Mortgages at Page 377, on which there is now due and owing the unpaid principal sum of $30,000.00. MORTGAGE TAX PAID $315.00
2. Mortgage made by Mortgagor to Manufacturers and Traders Trust Company, in the principal sum of $293,500.00 dated June 23, 2004 and recorded in the Orange County Clerk’s Office on July 14, 2004, in Liber 11554 of Mortgages at Page 911, on which there is now due and owing the unpaid principal sum of $293,500.00. MORTGAGE TAX PAID $3,082.00
3. Mortgage made by Mortgagor to Manufacturers and Traders Trust Company, in the principal sum of $293,500.00 dated June 23, 2004, and recorded in the Orange County Clerk’s Office on July 14, 2004, in Liber 11554 of Mortgages at Page 911, on which there is now due and owing the unpaid principal sum of $293, 500.00. MORTGAGE TAX PAID $3,082
4. Mortgage given by the Mortgagor to 132 Broadway Associates, LLC bearing even date herewith in the principal sum of $1,483,000.00 which is intended to be recorded simultaneously herewith.

All notes and Mortgages were combined, consolidated and made equal and coordinate liens on the above-described premises without priority of one over the other to constitute one first Note and Mortgage and single lien for the total sum of TWO MILLION ONE HUNDRED THOUSAND AND NO/100 ($2,100,000.00) DOLLARS upon said premises, which shall be paid with interest, in accordance with the terms and conditions of the said note and Mortgage.

See also the article in this week’s Mid-Hudson Times.

Here is a direct link to the highlights video.

This is the complete documentation of the 96 Broadway discussion yesterday evening, unedited, in three parts (approximately thirty minutes total):

Update: Video available upon request.