HomeMy WebLinkAbout2008_04_02 Town Board Minutes APRIL 2, 2008
MINUTES OF THE REGULAR MEETING OF THE TOWN BOARD OF
THE TOWN OF MAMARONECK HELD ON APRIL 2, 2008 AT
8:15 PM IN THE COURT ROOM OF THE TOWN, 740 W. BOSTON
POST ROAD, MAMARONECK, NEW YORK
PRESENT:
Supervisor Valerie M. O'Keeffe
Councilwoman Phyllis Wittner
Councilman Ernest C. Odierna
Councilwoman Nancy Seligson
Councilman David J. Fishman
ALSO PRESENT: Christina Battalia, Town Clerk
Stephen V. Altieri, Town Administrator
William Maker, Jr., Town Attorney
WORK SESSION
Pengilly Drive
The Town received correspondence from New Rochelle City Council Member Sussman
encouraging the Town to support a no left turn from Weaver Street onto Pengilly Drive.
The Board repeated their feeling that this is an alternative means for drivers trying to
avoid congestion on Weaver Street. Residents on Pengilly Drive noted it was not the
amount of cars using this as a cut thru but rather the speed at which they are going.
The Board noted that maybe the Weaver Street Corridor Study of 2001 should be
revisited. The Board sees this primarily as an issue for New Rochelle adding further
discussion with New Rochelle needs to take place.
Lisa Hale
Correspondence was received from Ms. Hale. She offered her services with regard to
creating a Community Emergency Response Team (CERT). She has been involved with
this program in the Town of Greenburg. Mary Stanton will follow up with Ms. Hale.
Relocation of Lot# 3—24 Hour Parkers
The Town Clerk and Town Administrator presented their final recommendation for the
relocation of the 24 hour parkers in Lot# 3. At the last work session a number of
proposals were discussed. After further investigation and determinations, the final
proposal by the Town Clerk and Town Administrator is to create a parking area on the
Vine Street side of Memorial Park. This area has already been slated for upgrading and
replanting; therefore, using it temporarily as a parking lot while proposals for its
improvement are discussed, is the recommendation. The Town engineer has reviewed
the site and determined that 40 cars could be parked. He estimates the cost of
preparing the area for parking at $10,000. Mr. Maker will prepare a resolution for the
Town Board to approve the temporary use of a designated park area for temporary
parking by the next Town Board Meeting on April 16.
Parking Fees
The Board discussed the fact that parking fees have not been raised since 2002.
Although there are still many changes that are taking place in the area of parking and
the possibility that fees may be reviewed again when those changes are complete, the
Board felt an increase was warranted. The Board will add this as an added item to the
Regular Meeting Agenda this evening.
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APRIL 2, 2008
Property Revaluation Report
Due to time restraints (additional time was needed to discuss parking) the Board
adjourned this item until the next Work Session on April 16.
Proposed Amendment— Solicitation Law
The Board discussed the Peddler's Law versus Soliciting. Mr. Maker reemphasized that
Local Law should not violate First Amendment Rights. Mr. Maker would do a full review
of Legislation and report back to the Board with his determinations.
Resolution — HR648 No Child Left Behind Act
Supervisor O'Keeffe received a letter and copy of a resolution by the School Board in
support of No Child Left Behind Improvements Act of 2007, H.R. 648, from Bea Cerasoli,
the District Clerk for the Mamaroneck School District. The letter asks for the Town
Board's support of this legislation. The Board felt this was not within their purview.
Additionally, they felt opining on unfamiliar legislation was not appropriate.
Planning Board Appointment
The Planning Board currently has vacancies for the two Alternate Members.
The Board is actively seeking members who would be willing to sit as alternates.
Kids for World Health — Use of the Greenway Trail
Councilwoman Seligson was approached by Kay Kobe Miles, a retired 4t" grade
Chatsworth teacher and founder of Kids for World Health, about hosting a walkathon
fundraising event on the Greenway Trail. The Board thought the event worthwhile but
objected to the Town being a sponsor. Councilwoman Seligson will notify Ms. Miles and
suggest she contact all the municipalities involved with Greenway to obtain approval
for use of the Trail.
Bonding Resolution — Hommocks Drain Pipe
Mr. Altieri is recommending the Board defer the Bonding Resolution on the agenda for
the Regular Meeting this evening, in order to add a possible contingency for soil
removal. Mr. Altieri further explained that if soil needs to be removed, additional costs
could incur. The Board is still able to award the contract at the Regular Meeting this
evening. Mr. Altieri will be meeting next week with Anthony Catalano of Woodard &
Curran and Cassidy Excavating to review the project—Supervisor O'Keeffe asked that
she be briefed after that meeting.
Board of Architectural Review (BAR)
Councilwoman Seligson notified the Board that Nautilus Diner came before the BAR
with changes they would like to make to their building. The Board discussed the role of
the BAR.
Zoning Board of Appeals
Councilwoman Seligson noted the Zoning Board is continuing with the application for
an Audi showroom in the Duane Reade building. A resident spoke before the Zoning
Board with initial negative comments about the proposal. Once he was advised of the
facts and the potential alternative possibilities, he noted that he may not be so
opposed.
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CALL TO ORDER
The regular meeting of the Town Board was called to order by Supervisor O'Keeffe at
8:40 PM she then pointed out the location of exits.
PUBLIC HEARINGS—FCD Mamaroneck, LLC–Amendment Special Permit
The following notice of Public Hearing was entered into the record:
NOTICE OF
PUBLIC HEARING
Adjourned March 5, 2008, March 19, 2008
PLEASE TAKE NOTICE, that a Public Hearing will be held by the Town Board of the
Town of Mamaroneck on April 2, 2008, at 8:15 PM or as soon thereafter as is possible in
the Court Room of the Town Center, 740 W. Boston Post Road, Mamaroneck, New York
to consider Amending the Special Permit issued by the Town Board to FCD -
Mamaroneck LLC,.
The full text of this Local Law may be examined and copies obtained at the Town
Clerk's office during regular hours (Monday through Friday, 8:30 AM to 4:30 PM, or until
4:00 PM during June, July and August) at 740 W. Boston Post Road Mamaroneck, New
York
PLEASE TAKE FURTHER NOTICE that at the Public Hearing all persons interested will
be given an opportunity to be heard and that all persons are invited to submit written
comments at or prior thereto.
BY ORDER OF THE TOWN BOARD
OF THE TOWN OF MAMARONECK
CHRISTINA BATTALIA
TOWN CLERK
Published: February 22, 2008
On motion of Councilwoman Wittner, seconded by Councilwoman Seligson, the
Public Hearing was unanimously re-opened.
Mr. Maker explained the details of the proposed Amendment to the Special
Permit and Amendment to the Contract of Sale, noting this has been discussed
extensively in Work Sessions as well as in the previous Public Hearing sessions
on March 5 and March 19, 2008.
Joel Sachs, Counsel to FCD Mamaroneck LLC, noted that Mr. Maker has set forth
very clearly the terms that the Town would like his client to adhere to. He also
noted that Andrew Tung, whose firm is designing the parking deck, was present
this evening and if there were any questions for him.
Supervisor O'Keeffe asked if anyone wished to speak for or against the proposed law.
Mr. Sparkman, 172 Myrtle Blvd., said he was very optimistic about what the
parking deck could provide. He encouraged the Board to wait until the parking
deck was complete before they address solutions to the limited parking
situation. He thought a new study group was needed to address how the cars
will enter and exit the new parking deck, now that the median was in place.
On motion of Councilwoman Wittner, seconded by Councilman Fishman, the
Public Hearing was unanimously closed.
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APRIL 2, 2008
On motion of Councilman Odierna, seconded by Councilman Fishman, the following
was approved:
FIRST AMENDMENT TO THE SPECIAL PERMIT ISSUED
BY THE TOWN BOARD
TO FCD MAMARONECK, LLC ON OCTOBER 18, 2006
Whereas, on October 18, 2006, the Town Board adopted a resolution
("2006 Resolution") wherein it issued a Special Permit to FCD Mamaroneck,
LLC ("Applicant") for the construction of the mixed-use development
described in the 2006 Resolution, subject to the conditions and
requirements contained in the 2006 Resolution; and
Whereas, citing adverse conditions in the real estate market since
the date of the 2006 Resolution, the Applicant applied to the Town Board
for an amendment to the terms of the Special Permit extending its
expiration date (see paragraph 14 of the 2006 Resolution) so that the
Applicant will have until April 18, 2011, instead of April 18, 2008, to submit
a complete application for a building permit for the construction of the
Mixed-Use Development and until October 18, 2011, instead of October 18,
2008, to obtain that building permit; and
Whereas, the Town Board referred the application to the Planning
Board for its advice; and
Whereas, on February 13, 2008, the Planning Board resolved to
recommend approval of the application and made certain
recommendations as to the conditions to be imposed by the Town Board if
the Town Board were to grant the Applicant's request; and
Whereas, the Town Board conducted a public hearing upon the
Applicant's request on March 5, 2008, March 19, 2008 and April 2, 2008 at
which all persons wishing to address the Town Board were given sufficient
time to speak and to submit written comments.
Now, therefore, after due deliberation, be it resolved as follows:
1. The findings which the Town Board made in the 2006 Resolution
as Lead Agency under the State Environmental Quality Review Act remain
valid since the facts upon which those findings were made have not
changed substantially. The Town Board determines that neither the
extension of the dates for submitting a complete application for a building
permit for the construction of the Mixed-Use Development and for
obtaining that building permit to the dates requested by the Applicant nor
the construction of the Parking Deck described in the 2006 Resolution will
have any adverse impact upon the environment.
2. The Applicant's request is granted, subject to the following
conditions and requirements set forth in this resolution:
I. The Applicant shall commence construction of the open air
parking deck above Parking Lot#3 that is described in subparagraph (3) of
paragraph B ("Specific Standards for the FCD Mamaroneck LLC Special
Permit Application") of the 2006 Resolution by no later than the later of
June 2, 2008 or the date that the Town has provided for the removal of all
vehicles and personal property from Parking Lot#3 and has provided
access to Parking Lot#3 to the Applicant or its contractors so that there
are no physical impediments to the construction of that parking deck.
II. Paragraph 11 of the 2006 Resolution is deleted and the following
is substituted in its place:
"11) Effective Date
If a counterpart of the Contract of Sale and the First Amendment to
the Contract of Sale executed by the Applicant are not delivered to the
Town Administrator within thirty (30) days following the date of this
resolution, this Special Permit shall be deemed to have been revoked,
without further action by the Town Board, on the thirty-first (31S) day
following the date on which this resolution is passed."
III. Paragraph 12 of the 2006 Resolution is deleted and the
following is substituted in its place:
"12) Failure to Perform the Contract of Sale
If(a) the contract for the sale of that certain piece or parcel of land
consisting of approximately 5,550 square feet lying and being in the Town
of Mamaroneck, County of Westchester and State of New York designated
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as Block 132, Lot 300.2 on the official tax map of the Town of Mamaroneck
and located on the east side of Byron Place takes effect and (b) the
Applicant fails to perform its obligations under that contract, the Town may
award a bid either:
(1) for the design and construction of a parking deck
substantially similar to the parking deck described in subparagraph (3) of
paragraph B ("Specific Standards for the FCD Mamaroneck LLC Special
Permit Application"), above (hereafter and in paragraph 14, "Parking
Deck") if construction has not begun or if any improvements made to
Parking Lot#3 are removed before construction of a deck for parking
automobiles substantially similar to the Parking Deck can commence, or
(2) the completion of the Parking Deck if construction thereof
has begun and can be completed without having to remove the
improvements made to Parking Lot#3 and/or in either case, for the
performance of the other work required to be done at Parking Lot#3. The
work to be done pursuant to the awarded bid hereafter is referred to as the
"Awarded Work".
If such an award is made, the Applicant shall pay to the Town an amount
equal to the amount that the Town actually pays for the Awarded Work plus
the amount actually paid by the Town to engineers, architects, designers,
attorneys and other professionals engaged by the Town in connection with
preparing for, letting and administering such award. At the Town's option,
such payment shall be made in installments with each installment being
paid within seven (7) days after a progress payment or a change order is
approved by the Town or in one lump sum within seven (7) days after
demand is made by the Town for such payment."
IV. Paragraph 14 of the 2006 Resolution is deleted and the
following is substituted in its place:
"14) Expiration of this Special Permit
A) This Special Permit shall expire automatically if the Applicant (a)
does not submit a complete application for a building permit for the
construction of the Mixed-Use Development on or before April 18, 2011 or
(b) does not obtain such building permit on or before October 18, 2011.
B) If construction of the Parking Deck is not substantially completed
(meaning that the Parking Deck is at a stage of construction that allows at
least 118 automobiles to be parked in Parking Lot#3) by the Target Date
which is March 1, 2009 (to be extended by one day for each day that there
is a need for the Town to remediate contamination or that there is any delay
beyond the reasonable control of a party, including delays caused by the
other party [e. g., the Town's failure to make Parking Lot#3 ready for
construction by June 2, 2008], governmental restrictions, governmental
preemption, strikes, labor disputes, lockouts, shortages of labor and
materials, enemy action, terrorist action, civil commotions, riots,
insurrection, fires that are not the result of the negligence of the Applicant
or its contractors and acts of God) but is substantially completed before
the Town awards a bid for the Awarded Work, the date by which the
Applicant must submit a complete application for a building permit for the
construction of the Mixed-Use Development and the date by which the
Applicant must obtain such building permit before this Special Permit
expires shall be two (2) days sooner than the dates set forth in paragraph
14 A) for each day from the first day after the Target Date to the day that the
Town confirms that the Parking Deck and the other work required to be
done at Parking Lot#3 have been constructed in accordance with the
requirements of this Resolution. [Example: Parking Deck #3 is ready for
construction on June 2, 2008. The Town confirms that the Parking Deck is
substantially complete on April 14, 2009. That day is 44 days after March 1,
2009 ---the Target Date. The date by which the Applicant must submit a
complete application for a building permit for the construction of the
Mixed-Use Development is now January 20, 2011 and the date by which the
Applicant must obtain such building permit is now July 23, 2011].
C) If the date for substantial completion of the Parking Deck is
extended for any of the reasons contained in paragraph 14 B) hereof, the
date by which the Applicant must submit a complete application for a
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building permit for the construction of the Mixed-Use Development and the
date by which the Applicant must obtain such building permit shall be
extended by one day for each day that there is a need for the Town to
remediate contamination or that there is any delay beyond the reasonable
control of a party, including delays caused by the other party [e. g., the
Town's failure to make Parking Lot#3 ready for construction by June 2,
2008], governmental restrictions, governmental preemption, strikes, labor
disputes, lockouts, shortages of labor and materials, enemy action,
terrorist action, civil commotions, riots, insurrection, fires that are not the
result of the negligence of the Applicant or its contractors and acts of God.
D) If construction of the Parking Deck is substantially complete
prior to the Target Date, the date by which the Applicant must submit a
complete application for a building permit for the construction of the
Mixed-Use Development and the date by which the Applicant must obtain
such building permit before this Special Permit expires shall be extended
beyond the dates set forth in paragraph 14 A) by one (1) day for each day
between the day that the Town confirms that the Parking Deck and the
other work required to be done at Parking Lot#3 have been constructed in
accordance with the requirements of this Resolution and the Target Date.
[Example: Parking Deck#3 is ready for construction on June 2, 2008. The
Town confirms that the Parking Deck is substantially complete on February
14, 2009. That day is 14 days prior to March 1, 2009 ---the Target Date. The
date by which the Applicant must submit a complete application for a
building permit for the construction of the Mixed-Use Development is now
May 2, 2011 and the date by which the Applicant must obtain such building
permit is now November 1, 2011].
E) No building permit for the construction of this Mixed-Use
Development shall be issued unless prior to or contemporaneous with its
issuance, a building permit for the construction of the Parking Deck shall
have been issued.
F) Any building permit issued for the construction of this Mixed-Use
Development can be revoked if, in the opinion, of the Director of Building
Code Enforcement and Land Use Administration, the construction of the
Parking Deck is not being carried on diligently."
3. All of the paragraphs of the 2006 Resolution (including the 20
recital paragraphs appearing at the beginning of the 2006 Resolution) that
have not been deleted or amended by this resolution hereby are
reconfirmed and shall remain in full force and effect.
4. The Town Administrator is authorized to execute the annexed
FIRST AMENDMENT TO THE CONTRACT OF SALE on behalf of the Town.
5. Within five (5) business days of the adoption of this resolution,
the Town Administrator or other duly authorized person (i) shall ascertain
whether a copy of this resolution has been filed in the office of the Town
Clerk and if not, shall cause a copy to be so filed and (ii) shall transmit by
first-class mail, telefax or electronic mail, a copy of this resolution to the
Applicant and to the agencies which are either interested or involved
agencies under the regulations promulgated by the New York State
Department of Conservation pursuant to the State Environmental Quality
Review Act.
The above resolution was put to a roll call vote:
Fishman Aye
Seligson Aye
Odierna Aye
Wittner Aye
O'Keeffe Aye
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On motion of Councilwoman Wittner, seconded by Councilwoman Seligson, the
following was approved:
FIRST AMENDMENT TO THE CONTRACT OF SALE
This amendment made as of April 2, 2008 is between the TOWN OF
MAMARONECK, a municipal corporation duly organized and existing under the laws of
the State of New York, having its principal place of business at 740 West Boston Post
Road, Mamaroneck, New York 10543 ("Seller") and FCD MAMARONECK LLC, a New
York limited liability company with an office located at 1775 Broadway, Suite 701, New
York, New York 10019 ("Purchaser"). All schedules and exhibits attached to this
Amendment are incorporated herein by reference.
1. Definitions. Where appearing herein, the following terms shall have the
following meanings:
"Contract" means the Contract of Sale entered into by the Seller and the Purchaser
made as of January 2007 for the sale of the Premises by the Seller to the Purchaser, as
amended by the First Amendment.
"First Amendment" means this document.
"Mixed-Use Development" means the building consisting of both retail
establishments and 139 residential units which the Purchaser proposes to construct on
property which it owns that lies directly across Byron Place from the Premises.
"Parking Deck" means the open air parking deck not requiring mechanical
ventilation or a sprinkler system to be constructed above Parking Lot#3 described in
subparagraph (3) of paragraph B ("Specific Standards for the FCD Mamaroneck LLC
Special Permit Application") of the Resolution.
"Parking Lot#3" means the existing municipal parking lot located along Myrtle
Boulevard near its intersection with North Chatsworth Avenue.
"Party" means the Seller or the Purchaser and "Parties" means both the Seller
and the Purchaser.
"Premises" means all that certain piece or parcel of land described on Exhibit A
annexed to the Contract consisting of approximately 5,550 square feet lying and being
in the Town of Mamaroneck, County of Westchester and State of New York designated
as Block 132, Lot 300.2 on the official tax map of the Town of Mamaroneck and located
on the east side of Byron Place.
"Ready for Construction" means the later of June 2, 2008 or the date that the Seller has
provided for the removal of all vehicles and personal property from Parking Lot#3 and
has provided access to Parking Lot#3 to the Purchaser or its contractors so that there
are no physical impediments to the construction of the Parking Deck.
"Resolution" means the resolution adopted by the Town Board on October 18, 2006
wherein the Special Permit was granted to the Purchaser.
"Special Permit" means the special permit which was issued to the Purchaser by the
Resolution.
"Substantially complete" means that the Parking Deck is at a stage of construction that
allows at least 118 automobiles to be parked in Parking Lot#3.
"Target Date" means March 1, 2009 or the date to which substantial completion
of the Parking Deck is extended due either to Unavoidable Delays or the need to
remediate contamination or a combination of both.
"Town Board" means the Town Board of the Town of Mamaroneck.
"2008 Resolution" means the resolution adopted by the Town Board on April 2,
2008 wherein the Special Permit was amended at the Purchaser's request.
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"Unavoidable Delays" means any delay beyond the reasonable control of a
party, including delays caused by the other party (e. g., the Seller's failure to make
Parking Lot#3 Ready for Construction), governmental restrictions, governmental
preemption, strikes, labor disputes, lockouts, shortages of labor and materials, enemy
action, terrorist action, civil commotions, riots, insurrection, fires that are not the result
of the negligence of the Purchaser or its contractors and acts of God.
2. Recitals. (a) The Parties entered into the Contract where under the Seller agreed
to sell and the Purchaser agreed to buy the Premises.
(b) The consideration to be furnished by the Purchaser for its acquisition of the
Premises was the design and construction, at its sole expense, of the Parking Deck.
(c) The Purchaser anticipated that it would commence construction of the
Parking Deck prior to the expiration of the Special Permit.
(d) Due to adverse conditions in the real estate market that arose after the
Resolution was adopted, the Purchaser requested the Town Board to amend the
Special Permit by extending its expiration date (see paragraph 14 of the Resolution) so
that the Purchaser will have until April 18, 2011 to submit a complete application for a
building permit for the construction of the Mixed-Use Development and until October
18, 2011 to obtain that building permit.
(e) By the 2008 Resolution, the Town Board agreed to the Purchaser's request
with certain conditions.
(f) To carry out the terms of the 2008 Resolution, the Contract must be amended.
(g) The First Amendment conforms the Contract to the terms of the 2008
Resolution.
3. Amendments to the Contract. The following paragraphs and clauses contained
in the Contract are amended as follows:
(1) Clause A of paragraph 5 of the Contract is deleted and the following is
substituted in its place:
"A. The Purchaser shall obtain building permits from the Seller for the construction of
the Parking Deck and the other work to be done at Parking Lot#3 but shall not be
obligated to pay any fees to the Seller in order to obtain such permits. The Purchaser
understands and agrees that all plans for the Parking Deck and the other work to be
done at Parking Lot#3 shall be reviewed and approved by the Seller's Building
Department. The Seller and the Purchaser shall reasonably cooperate with each other
for the expeditious approval of those plans and specifications so that a building permit
for the construction of the Parking Deck can be issued as soon as possible. The
Purchaser shall commence construction of the Parking Deck on the date that Parking
Lot#3 is Ready for Construction.
(11) Clause B of paragraph 5 of the Contract is deleted and the following is
substituted in its place:
"B. Before a building permit for the construction of the Parking Deck is issued, the
Purchaser shall deliver to the Seller a performance bond ("Performance Bond")
procured either by it or by the general contractor engaged by the Purchaser that will
insure the Purchaser's compliance with its obligations under the Resolution, the 2008
Resolution and the Contract to complete the construction of the Parking Deck and the
other work required to be done at Parking Lot#3. If provided by the general contractor,
the Performance Bond shall name the Seller and the Purchaser as co-obligees. The
Purchaser shall join the Seller in any request made by the Seller upon the surety when
there is a default that would warrant the surety to perform its obligations under that
bond and at the Seller's request shall cooperate in enforcing the provisions of the
Performance Bond, including but not limited to, the institution of litigation or arbitration
against such surety. The surety under the Performance Bond shall be an entity that is
authorized to do business in the State of New York and is acceptable to the Seller's
counsel. In making such determination, the Seller's counsel shall exercise reasonable
judgment."
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(III) Clause C. of Paragraph 5 of the Contract is amended by deleting the period
that appears after"paragraph 13" and substituting a comma therefore.
(IV) Clause 5 of the Contract is amended by adding the following clause G
thereto:
"G. The construction of the Parking Deck shall be substantially completed no later than
the Target Date; however, (i) if construction is delayed because the Purchaser or its
contractors discover environmental conditions on or under Parking Lot#3, including
but not limited to hazardous substances, hazardous wastes or petroleum contamination
that require remediation by the Seller, the dates for the commencement and the
completion of the Parking Deck shall be extended by the number of days between the
date on which the contamination is discovered and the date on which remediation of
such contamination is completed or(ii) if construction is delayed because of
Unavoidable Delays, the dates for the commencement and the completion of the
Parking Deck shall be extended by the number of days between the date on which the
Unavoidable Delay occurs and the date on which the Unavoidable Delay ceases. If
Parking Lot#3 is not Ready for Construction on June 2, 2008, the Seller shall give the
Purchaser 15 days advance notice of the date on which Parking Lot#3 will be Ready for
Construction."
(V) Clause A of paragraph 6 of the Contract is deleted and the following is
substituted in its place:
"A. The closing of title (the "Closing") shall occur at the Town of Mamaroneck's offices
located at 740 W. Boston Post Road, Mamaroneck, New York 10543 on a date which is
within sixty (60) days after the Seller confirms that the Parking Deck and the other work
required to be done at Parking Lot#3 have been constructed in accordance with the
requirements of the Resolution, the 2008 Resolution and the Contract."
(VI) Paragraph 10 of the Contract is deleted and the following is substituted in
its place:
" 10. DEFAULT AND REMEDIES
A. If the Purchaser fails to observe or perform any provision hereof(other
than the requirement that the construction of the Parking Deck be substantially
completed by the Target Date and such failure continues for thirty (30) days after notice
is given to the Purchaser of such failure, then a "Default of Purchaser" shall exist under
the Contract; unless such failure is of a type which cannot with diligence be cured
within a thirty (30) day period. In that case, there shall be a Default of Purchaser only if
(i) the Purchaser does not commence to cure such failure within the thirty (30) day
period after notice is given or(ii) having commenced to cure such failure within the
thirty (30) day period after notice is given, no longer diligently proceeds to cure such
failure.
B. If the Purchaser fails to substantially complete the construction of the
Parking Deck by the Target Date, a "Timetable Default of Purchaser" shall exist under
the Contract.
C. If a Timetable Default of Purchaser occurs, the Seller may award a bid
after giving notice of such default to the Purchaser either:
(1) for the design and construction of a deck for parking automobiles
substantially similar to the Parking Deck if construction of the Parking Deck has not
begun or if any improvements to Parking Lot#3 are removed before construction of a
deck for parking substantially similar to the Parking Deck can commence, or
(2) the completion of the Parking Deck if construction thereof has begun
and can be completed without having to remove the improvements to Parking Lot#3
and/or in either case, for the performance of the other work required to be done at
Parking Lot#3. The work to be done pursuant to the awarded bid hereafter is referred to
as the "Awarded Work".
If such an award is made, the Purchaser shall pay to the Seller an amount equal to the
amount that the Seller actually pays for the Awarded Work plus the amount actually
paid by the Seller to engineers, architects, designers, attorneys and other professionals
engaged by the Seller in connection with preparing for, letting and administering such
award. At the Seller's option, such payment shall be made in installments with each
installment being paid within seven (7) days after a progress payment or a change order
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APRIL 2, 2008
is approved by the Seller or in one lump sum within seven (7) days after demand is
made by the Seller for such payment.
D. If the Timetable Default of Purchaser occurs but the Purchaser completes
such construction before the Seller awards a bid for the Awarded Work, the Timetable
Default of Purchaser shall be deemed cured but the dates by which the Purchaser must
submit a complete application for a building permit for the construction of the Mixed-
Use Development and must obtain that building permit before this Special Permit
expires shall be adjusted in accordance with the formula expressed in the amendment
to paragraph 14 B of the Resolution that appears in paragraph 2 IV of the 2008
Resolution.
E. If construction of the Parking Deck is substantially complete prior to the
Target Date, the dates by which the Purchaser must submit a complete application for a
building permit for the construction of the Mixed-Use Development and must obtain
that building permit before this Special Permit expires shall be adjusted in accordance
with the formula expressed in the amendment to paragraph 14 D of the Resolution that
appears in paragraph 2 IV of the 2008 Resolution.
F. If the Seller is in default of its obligations hereunder, the Purchaser shall
have such other remedies for the default as the Purchaser shall be entitled to at law or
in equity, including, but not limited to, specific performance.
G. All of the clauses of this paragraph shall survive delivery of the Deed."
4. Representations and Warranties.
A. The Seller hereby represents and warrants to the Purchaser that the
Seller(such representations and warranties to be true and correct at the date of the
First Amendment and as of the Closing) has the full right, power and authority to enter
into and fully perform its obligations under the First Amendment and the person
signing the First Amendment on behalf of the Seller is authorized to do so. This
representation shall survive the delivery of the Deed.
B. The Purchaser hereby represents and warrants to the Seller(such
representations and warranties to be true and correct at the date of the First
Amendment and as of the Closing) that the Purchaser has the full right, power and
authority to enter into and fully perform its obligations under the First Amendment and
the person signing the First Amendment on behalf of the Purchaser is authorized to do
so. This representation shall survive the delivery of the Deed.
5. Counterparts.
The First Amendment may be executed in one or more counterparts, each of
which shall be deemed to be an original but all of which when taken together shall
constitute one and the same contract.
6. Severability.
If any one or more of the provisions contained in the First Amendment shall for any
reason be held invalid, illegal or unenforceable in any respect, such invalidity, illegality
or unenforceability shall not affect any other provision hereof and the First Amendment
shall be construed as if such invalid, illegal or unenforceable provision had never been
contained herein.
7. Restatement of the Contract.
All of the provisions of the Contract that have not been deleted or amended by
the First Amendment shall remain in full force and effect and shall continue to be part
of the Contract.
The above resolution was put to a roll call vote:
Fishman Aye
Seligson Aye
Odierna Aye
Wittner Aye
O'Keeffe Aye
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APRIL 2, 2008
PUBLIC HEARINGS—Zoning Ordinance - Making the Defense of Non-Conformity an
Affirmative Defense
The following notice of Public Hearing was entered into the record:
NOTICE OF PUBLIC HEARING
Adjourned March 5, 2008, March 19, 2008
PLEASE TAKE NOTICE, that a Public Hearing will be held by the Town
Board of the Town of Mamaroneck on April 2, 2008 at 8:15 PM or as soon
thereafter as is possible in the Court Room of the Town Center, 740 W.
Boston Post Road, Mamaroneck, New York to consider the adoption of a
local law entitled "Making the Defense of Non-Conformity an Affirmative
Defense" Law.
Purpose
To make the defense of pre-existing non-conformity an "affirmative
defense" in the prosecution of a violation of the Zoning Ordinance.
The full text of this Local law may be examined and copies obtained at the
Town Clerk's office during regular hours (Monday through Friday, 8:30
AM to 4:30 PM, or until 4:00 PM during June, July and August) at 740 W.
Boston Post Road Mamaroneck, New York
PLEASE TAKE FURTHER NOTICE that at the Public Hearing all persons
interested will be given an opportunity to be heard and that all persons
are invited to submit written comments at or prior thereto.
BY ORDER OF THE TOWN BOARD
OF THE TOWN OF MAMARONECK
CHRISTINA BATTALIA
TOWN CLERK
Published: February 18, 2008
On motion of Councilwoman Wittner, seconded by Councilwoman Seligson, the
Public Hearing was unanimously re-opened.
The Board is still waiting for a formal opinion from the Planning Board. The
Board will give the Planning Board until April 16, at which time they will move
forward with their decision process.
On motion of Councilwoman Wittner, seconded by Councilwoman Seligson, the Board
unanimously
RESOLVED, that the Mamaroneck Town Board does hereby
adjourn the Public Hearing regarding the adoption of a Local
Law entitled "Making the Defense of Non-Conformity an
Affirmative Defense" Law until April 16, 2008.
BOARD OF FIRE COMMISSIONERS
The meeting was called to order by Commissioner O'Keeffe and on motion of
Commissioner Fishman, seconded by Commissioner Seligson, the Board of Fire
Commissioners was unanimously declared open.
Present were the following members of the Commission:
Commissioner: Valerie M. O'Keeffe
Commissioner: Phyllis Wittner
Commissioner: Ernest C. Odierna
Commissioner: Nancy Seligson
Commissioner: David J. Fishman
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APRIL 2, 2008
1. FIRE CLAIMS
Commissioner Wittner presented fire claims for authorization of payment, thereafter on
Commissioner Wittner's motion, seconded by Commissioner Fishman, it was
RESOLVED that this Commission hereby authorizes payment
of the following Fire Department claims as approved by the
Fire Chief and audited by the Comptroller's Office:
AAA Emergency Supply Co. Inc. $ 569.50
AAA Emergency Supply Co. Inc. $ 35.00
Cablevision $ 83.38
Cleaning Systems $ 290.69
Cleaning Systems $ 114.38
Cleaning Systems $ 22.96
IKON $ 212.13
Inter-State Diagnostics $ 715.00
Metrocom Wireless $ 118.00
Michael Liverzani $ 524.00
Poland Springs $ 98.84
Sound Shore Contracting $ 185.00
Technical Electronics $ 715.25
TriCity Auto Parts $ 107.32
Westchester Italian Bakery $ 221.00
Verizon $ 416.24
Verizon Wireless $ 305.97
WJWW $ 91.08
Total: $4,825.74
Purchase Orders:
Metrocom Wireless $3,684.57
Metrocom Wireless $3,200.85
Total: $6,885.42
The above resolution was put to a roll call vote:
Commissioner Fishman Aye
Commissioner Seligson Aye
Commissioner Odierna Aye
Commissioner Wittner Aye
Commissioner O'Keeffe Aye
2. Authorization — Transfer of Funds — Capital Project 27-06 Replacement of the
Fire Engine
On motion of Commissioner Wittner, seconded by Commissioner Odierna, the following
was approved:
WHEREAS, in connection with the replacement of Fire Engine
51 additional funds are necessary to complete the purchase of
the two-way radios required for the apparatus and for
communication with Westchester County 60 Control.
NOW THEREFEROE, BE IT
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APRIL 2, 2008
RESOLVED, that this Commission hereby authorizes the
transfer of funds in the amount of$5,700.00 from the fire
district's unappropriated reserve balance into Capital Project
27-06 in connection with the replacement of Engine 51.
The above resolution was put to a roll call vote:
Commissioner Fishman Aye
Commissioner Seligson Aye
Commissioner Odierna Aye
Commissioner Wittner Aye
Commissioner O'Keeffe Aye
3. Other Fire Department Business
There being no further business to come before the Commission, on motion of
Commissioner O'Keeffe, seconded by Commissioner Wittner, the Commission
unanimously adjourned.
AFFAIRS OF THE TOWN
1. Authorization —Ambulance District Billing Agreement
Mr. Altieri explained that Mike Liverzani has been exploring alternatives to the
Ambulance Districts billing system. The Board received a presentation by Mr. Liverzani
at their last Work Session, which included his recommendation.
The Board noted this has been something they have discussed over a number years,
they agree it makes good sense for cash flow, increased accuracy and better patient
care.
On motion of Councilwoman Seligson, seconded by Councilwoman Wittner, it was
RESOLVED, that the Mamaroneck Town Board does hereby
approve the Agreement between Evolution Billing
Concepts, LLC and the Ambulance District for ambulance
billing, accounts receivables and aspects of operation as
set forth in the agreement, and
BE IT, FURTHER
RESOLVED, that the Mamaroneck Town Board does hereby
authorize the Town Administrator to execute said
agreement at such time as the Ambulance District has an
agreement with its current provider Multi Med for a
termination of their billing system with the Ambulance
District.
The above resolution was put to a roll call vote:
Fishman Aye
Seligson Aye
Odierna Aye
Wittner Aye
O'Keeffe Aye
2. Report of Bids — Contract TA-08-06 Hommocks Drain Pipe
The following report of bids is entered into the record as follows:
SEE ATTACHMENT "A" AT THE END OF MINUTES
13
APRIL 2, 2008
On motion of Councilwoman Wittner, seconded by Councilwoman Seligson, the
following was approved:
WHEREAS, on March 28, 2008 the Town publicly read bids
from fourteen contractors for the Hommocks Drainage
Improvements.
NOW THEREFORE, BE IT
RESOLVED, that the Town Board does hereby award
Contract TA-08-06 Hommocks Drainage Improvements to
the lowest qualified bidder, Cassidy Excavating, Valhalla,
NY, at a total cost of$361,735.00; and
BE IT FURTHER,
RESOLVED, that the Town Administrator is authorized to
execute said contract on behalf of the Town.
The above resolution was put to a roll call vote:
Fishman Aye
Seligson Aye
Odierna Aye
Wittner Aye
O'Keeffe Aye
3. Authorization — Bonding Resolution - Hommocks Drain Pipe
Mr. Altieri recommended the Board defer the bonding resolution for this project
because the Town will need to put some contingency for soil removal into the total
bonding amount.
THIS ITEM WAS DEFERRED UNTIL A LATER DATE.
4. Report of Bids — Contract TA-08-03 Reconstruction of Sidewalks and Curbs
The following report of bids is entered into the record as follows:
SEE ATTACHMENT"B" & "C" AT THE END OF MINUTES
On motion of Councilwoman Wittner, seconded by Councilman Odierna, the following
was approved:
WHEREAS, on April 1, 2008 the Town publicly opened and read
bids for Contract TA-08-03 —Construction & Replacement of
Concrete Sidewalks, Curbs & Sidewalk Curb Ramps.
NOW THEREFORE, BE IT
RESOLVED, that the Town Board does hereby award Contract
TA-08-03 Construction & Replacement of Concrete Sidewalks,
Curbs & Sidewalk Curb Ramps to the lowest qualified bidder
Bilotta Construction, Harrison NY, at a total cost of
$146,635.00; and
BE IT FURTHER,
RESOLVED, that the Town Administrator is authorized to
execute said contract on behalf of the Town.
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APRIL 2, 2008
The above resolution was put to a roll call vote:
Fishman Aye
Seligson Aye
Odierna Aye
Wittner Aye
O'Keeffe Aye
5. Set Public Hearing — Cold War Veteran's Tax Exemption
On motion of Councilman Fishman, seconded by Councilwoman Wittner, it was
unanimously
RESOLVED, that the Town Board does hereby
set the date for Public Hearing on a Cold War
Veteran's Tax Exemption for May 7, 2008, and
BE IT FURTHER,
RESOLVED, that the Town Clerk is hereby
authorized to publish the notice of said hearing
in a newspaper appointed as an official
newspaper, and that said notice be posted.
6. Consideration — Traffic Committee Recommendations
The Board discussed resident notification. The Board agreed that better notification of
residents potentially affected by a change in Traffic Law needs to be addressed. The
Board agreed that the formal notification of residents should take place prior to a Public
Hearing and not prior to the Traffic Committee Meeting.
THIS ITEM WAS DEFERRED BACK TO THE TRAFFIC COMMITTEE FOR NOTIFICATION
OF RESIDENTS
7. Authorization —Agreement— Larchmont Acres Playground
On motion of Councilwoman Seligson, seconded by Councilwoman Wittner, it was
unanimously
RESOLVED, that the Mamaroneck Town Board finds that the
License Agreement between Larchmont Acres East
Associates, LLC and the Town of Mamaroneck regarding the
Larchmont Acres Playground is hereby declared a Type II
action under the New York State Environmental Quality
Review Act (SEQRA) requiring no further action.
On motion of Councilwoman Seligson, seconded by Councilwoman Wittner, it was
unanimously
RESOLVED, that the Town Board does hereby approve the
Agreement between the Town of Mamaroneck and the
Larchmont Acres East Associates LLC, to construct and
maintain a playground from funds granted by a Community
Development Block Grant, and
BE IT FURTHER,
RESOLVED, that the Town Administrator is hereby authorized
to execute said agreement on behalf of the Town.
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APRIL 2, 2008
The above resolution was put to a roll call vote:
Fishman Aye
Seligson Aye
Odierna Aye
Wittner Aye
O'Keeffe Aye
8. Salary Authorization —Administrative Intern
Recreation
ADMINISTRATIVE INTERN
On motion of Councilwoman Wittner, seconded by Councilman Fishman, it was
RESOLVED, that the Mamaroneck Town Board does hereby
authorize the appointment of Kelly Belnick as a summer intern
for the period June 9, 2008 through August 29, 2008 at an
hourly rate of$12.00.
The above resolution was put to a roll call vote:
Fishman Aye
Seligson Aye
Odierna Aye
Wittner Aye
O'Keeffe Aye
RECREATION
On motion of Councilwoman Wittner, seconded by Councilman Fishman, it was
RESOLVED, that as provided for in the 2008 Town Budget the
Town Board does hereby authorize the payment of salary to
the following:
MEMORIAL PARK TENNIS COURTS
Lester Wauchope Attendant $14.00 Hour
David Conover Attendant $11.50 Hour
Michael Henry Attendant $11.50 Hour
Francine Brill Alternate Attendant $12.00 Hour
SPRING HOCKEY
Thomas Greason Director $20.00 Hour
The above resolution was put to a roll call vote:
Fishman Aye
Seligson Aye
Odierna Aye
Wittner Aye
O'Keeffe Aye
9. Authorization — Fees for Town Parking Lots
On motion of Councilman Fishman, seconded by Councilman Odierna, it was
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APRIL 2, 2008
RESOLVED that the Town Board does herby approve the
following rate increase for all Town Parking Lots, effective
June 1, 2008 through May 31, 2009, as follows:
LOT# 1 COMMUTER CURRENT 2008-2009
Daytime 1 car $350.00 $400.00
Daytime 2 cars $360.00 $410.00
Meter 1 car $ 30.00 $ 40.00
Meter 2 cars $ 40.00 $ 50.00
LOT#2 AREA BUSINESS
Area Business 1 car $200.00 $250.00
Area Business 2 cars $210.00 $260.00
LOT# 3 -24 HOUR
24 Hour $400.00 $450.00
24 hour Qtrly $100.00 $112.00
24 Hour Senior $200.00 $250.00
24 Hour Senior Qtrly $ 50.00 $ 62.00
LOT# 3 &4
Overnight $200.00 $250.00
Overnight Qtrly $ 60.00 $ 72.00
Overnight Senior $100.00 $125.00
Overnight Senior Qtrly $ 25.00 $ 31.00
The above resolution was put to a roll call vote:
Fishman Aye
Seligson Aye
Odierna Aye
Wittner Aye
O'Keeffe Aye
APPROVAL OF MINUTES March 5, 2008 & March 19, 2008
On motion of Councilwoman Seligson, seconded by Councilwoman Wittner, it was
unanimously
RESOLVED, that the Mamaroneck Town Board does
hereby approve the Board Minutes from the meeting of,
March 5, 2008 and March 19, 2008.
ORAL COMMUNICATIONS
The Board was contacted by a resident of Myrtle Blvd; Councilwoman Wittner will
follow up.
WRITTEN COMMUNICATIONS
None
17
APRIL 2, 2008
SUPERVISOR'S REPORT
Supervisor O'Keeffe attended the Westchester Municipal Officials Meeting, she noted
State Comptroller DiNapoli will speak at their next meeting. The Murray Ave Residents
Association (MARA) was briefed by the County on the upcoming drainage improvement
project on Murray Ave near Colonial Ave. She noted it was an especially informative
meeting that was well attended.
REPORT OF COUNCIL
Councilman Fishman noted the opening of the Little League Season
Councilwoman Seligson attended the Board of Architectural Review and the Zoning
Board of Appeals. The Application for an Audi Showroom continues to be discussed.
She participated in a tour of the Flint Park Project with Village of Larchmont Officials
and the Engineers/Consultants for the project. She also felt the MARA meeting with the
County was very productive.
Councilwoman Wittner was invited to participate in the County Planning Managers
Session. The County is analyzing the management of all their Departments.
Councilwoman Wittner was honored to be the only outsider of the twenty five County
personnel in attendance. On March 20, she attended an excellent work session of
LISWIC; they are continuing to work on legislation to form a Regional Stormwater
District. At the Coastal Zone Management Commission, applications were mostly from
the Village of Larchmont. She attended the League of Woman Voters presentation on
Regional Storm Water Management and Flood Control; the speakers were very diverse.
She attended the Document Management Workshop held by General Code and hosted
by the Town of Mamaroneck.
Councilman Odierna noted he attended many of the same meetings. He noted the Flint
Park waterfront is magnificent, adding it is a plus for the entire Town. In April, he will
attend the "green" IT seminar in Albany. He also found the Document Management
Workshop informative. He reminded residents of the County's hazardous waste drop
off at Playland this Friday and Saturday.
Mr. Altieri announced that grey cardboard i.e. cereal boxes and shoe boxes, can now be
added to curb recycling.
PROCLAMATION
Councilman Fishman read the following Proclamation:
PATRICIA MINER-SUTHERLAND
WHEREAS: Pat Sutherland has been teaching and sharing her love of art with
her painting class at the Larchmont-Mamaroneck Senior Center for
35 years; and
WHEREAS: Pat's 20 +students, who range in age from 60 to 85, are exhibiting
their paintings at the Oresman Gallery at the Larchmont Public
Library throughout April and will have an artist reception on April
5t" from 2:30 p.m. until 4:30 p.m.; and
WHEREAS: Many of her dedicated pupils enjoy painting so much that they are
setting up home studios. In addition to painting at the Center, the
class is also planning to go "on location"to paint outdoors; and
WHEREAS: Pat was born in Mexico City, the daughter of an American
diplomat, attended schools in Medellin, Colo, Brazil, London and
Mexico City and graduated from Mexico City University with a
degree in Design; and
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APRIL 2, 2008
WHEREAS: Pat has exhibited her own paintings all over the world including
numerous solo shows at local galleries including the Rye Art
Gallery and Chatsworth Gallery in Larchmont and last spring
volunteered to paint 2 "Ducks"for the Ducktails exhibit and
auction that benefited the Larchmont Historical Society.
NOW, THEREFORE, BE IT RESOLVED, that 1, Valerie Moore O'Keeffe, Supervisor of the
Town of Mamaroneck, and the Town Board members hereby congratulate and thank Pat
Sutherland for her many years of service to our community and especially to our
seniors and extend best wishes for continued success.
IN WITNESS WHEREOF, I have hereunto set my hand and caused the seal of the Town
of Mamaroneck to be affixed this 2nd day of April 2008.
ADJOURNMENT
On motion of Councilwoman Wittner, seconded by Councilman Odierna, the meeting
was unanimously adjourned 11:20 PM.
Prepared and Submitted by
Christina Battalia, Town Clerk
19