Lancaster Councilman Mark Aquino, for whatever reason, has taken it upon himself to declare the town acted responsibly with the purchase of the 3949 Walden Avenue Colecraft Building and during the eight year delay where numerous feasibility studies were conducted and the cost of the project skyrocketed by the millions. |
Aquino stated at the recent town board meeting that he would not retract one statement he made in his letter to the Lancaster Bee. He continues to blame town residents for instating a lawsuit against the purchase of the Colecraft Building, and which caused the delay in the project moving forward.
Residents involved in the lawsuit, and their supporters, have made it crystal clear at town board meetings over the years, and in the media that:
• The lawsuit was not against the purchase of the Colecraft Building, but rather to recoup $15,000 that was spent on a 2003 Trautman & Associates feasibility study that was performed after a contract to purchase the building was entered into.
• The feasibility study did not delay the project from moving forward regardless Aquino’s statement that the Town Attorney at that time advised the town board that the project could not move forward because of the suit. Mr. Aquino’s declaration that the suit was officially open for appeal until 2008 bears no substance or standing as a letter was sent to the court specifically stating that the litigants would not appeal then or in the future.
That leaves Aquino’s assertion that the town did not buy the Colecraft Building until the closing took place in July of 2003.
Not so says resident Henry Gull, one of five who pursued legal action, and supporters of his position. They maintain the April purchase contract was binding from day one. “When the town bonded for the money on April 28, 2003, the purchase was a done deal.
Not so says practicing attorney & Councilman Mark Aquino. According to Aquino, there is a contingency clause in the contract agreement which allowed the town to opt out of the contract any time it wanted.
Who is right? Not being an attorney, but someone who is well versed in the entire police facility project and process, I will only offer the following (after reviewing Henry Gull’s and my records):
April 7, 2003 - The Contract of Sale Agreement was drawn up.
April 9, 2003 – Agreement signed by Town of Lancaster Supervisor Robert Giza.
April 14, 2003 – Agreement signed by Colecraft representative.
April 28, 2003 – Municipal Review Committee conducts a SEQR on the site – negative declaration made indicating no potentially significant impacts noted.
April 28, 2003 – Town Board approves SEQR and passes resolution to bond $1.93 million to purchase the Colecraft meeting.
April 29, 2003 – Town contracts Clough Harbour & Associates (CHA) to perform feasibility study on condition of building. Outside of need for roof repairs ($177,000), CHA declares the building condition as adequate.
May 12, 2003 – A joint meeting between town and village boards took place. Village of Lancaster board members not happy to hear the town entered into a contract to purchase the Colecraft building without their input. Village declares the police merger did not involve the discussion of a police facility, something that was planned for two years down the road. Both municipalities agreed that a feasibility study should be performed to determine which of three location options would best suit their best interests – the Colecraft Building, the Village Municipal Building, or a new build.
It was at this time that the residents who later pursued litigation felt that fraud was involved. They believed the Colecraft Building was for all intents and purposes already purchased. Why do a feasibility study and spend $15,000 of taxpayer money when the building was already purchased.
May 19, 2003 – The town finally reveals the existence of a contract to purchase the Walden Avenue Colecraft building.
Mid July 2003 – The Trautman study is completed and handed over to the town and village for their review.
July 21, 2003 – The town closes on the purchase of the Colecraft Building.
According to resident Henry Gull (and I and many others concur), the actual purchase of the Colecraft Building took place the minute the Sale Contract was signed by both parties and the purchase money was bonded. That happened in April 2003.
According to Aquino, the purchase did not officially take place until July 21, 2003. Aquino also declares there was a contingency clause in the contract that allowed the town to opt out of the contract. I have to agree with Mr. Aquino that at closing one is assured that all conditions/contingencies have been satisfied.
However, when examining the Sale Contract, one has wonder whether all conditions and contingencies were met by end of April – where by that time the town board had approved by resolution to let the Supervisor enter into the sale purchase agreement, SEQR was approved and $1.93 million was bonded for purchase.
If one examines the Sale Contract, he sees there is a “Conditions to Closing” section (10). The conditions encompass:
a) Inspection and environment. Done before the May 12th town and village meeting of May 12, 2003 took place.
b) Zoning requirement. No issue.
c) Utility Capacity. No issue.
d) Financial Contingency – “The Sale Contract is hereby mad contingent upon the Purchaser hereunder adopting a bond resolution in order to complete the purchase of the real property. Said bond resolution shall be subject to statutory requirements requiring permissive referendum (30) days.”
So examining the contract contingency language why shouldn’t Mr. Gull, or anyone, not believe that with the April 28, 2003 bonding taking place that the purchase was a done deal, then and there.
Why is it that the residents who attend town board meetings religiously did not know of the permissive referendum clause until it was brought to light by Village Trustee Jeff Stribing at the Town/Village meeting on May 12, 2003? Transparency and openness has not been a town board strong-point during the eight year process.
Aquino may be legally correct in his contract closing assertion. However, many believe the facts to have been stated correctly by their attorney in the lawsuit instated against the commission of the Trautman feasibility study:
On April 7, 2003, the town by adopted by resolution authorized supervisor Giza to enter into a contract for the purchase of the Colecraft Building.
On April 9, 2003 Supervisor Giza signs the Colecraft contract purchase with a specified closing date of July 10, 2003.
On April 14, 2003 a Colecraft representative signs the contract.
On April 28, 2003, by resolution, the town board authorizes the bonding of $1.93 million for the purchase of the Colecraft Building.
On May 12, 2003, at a joint meeting with the Village Board, Trautman & Associates are commissioned to perform a feasibility study to determine which is the best of here options for the location of a police facility to house the newly merged Town of Lancaster and Village of Lancaster police forces.
At that meeting, the town board assured the village reps that the Colecraft Building would not be purchased until after the study was completed and the results were made known. The agreed upon purpose was to determine the most cost effective alternative for the Headquarters.
It was agreed the Town and the village would share the $15,000 study cost.
At no time did the Town disclose to the Village that a contract for purchase was already entered into. No purchase would take place until after the Trautman feasibility study was completed.
In passing, Supervisor Giza declared that the Town had made only an “offer” and/or had only “an option to purchase the Colecraft Building, but never stated that he (Town) had already entered into a “bonafide purchase contract.”
On May 21, 2011 closed the purchase, without public notice and before the results of the Feasibility Study were publically addressed.
Mr. Gull and Councilman Aquino will never agree as to when the purchase of the Colecraft Building took place. However, Mr. Gull and his supporters believe the following to be true and have presented reasonable arguments over the eight year span of this project and process to make their point:
• The Colecraft Building purchase contract was binding as of April 28, 2003. At that time, the town board authorized the Supervisor to enter into a purchase agreement contract, a SEQR was performed and approved and a bonding resolution was approved ($1.93 million).
• The resident lawsuit had nothing to do with the purchase of the Colecraft Building; rather with the waste of $15,000 for the performance of a feasibility study on a building that was already in the process of being purchased. Justice Christopher Burns ruled that there was no criminal intent on the part of the town board defendants, just “bad governance”.
• The lawsuit did not delay the Town from proceeding with the construction/renovation of the Colecraft Building. Bad legal advice by the Town Attorney at that time caused the delay.
• The $25,000 cost for the Town defense in the citizen lawsuit is attributed to the Town having to hire outside counsel as their insurance carrier would not cover the cost of the defense suit.
Waste of taxpayer money
Mr. Aquino stated in his Bee letter that the Town acted responsibly throughout the eight year process. I have to wholeheartedly agree with Mr. Gull that they did not. The Town acted neither fiscally, ethically or morally responsible in the process. The Town told half truths and begrudgingly answered resident questions all too often.
Despite being advised by town officials and public alike to sell the Colecraft Building years ago and to build new at town owned property on Pavement Road, the town board only half heartedly attempted to sell the property – without putting the property through a formal appraisal and bid process.
At the May 12, 2003 joint meeting with the Village of Lancaster present, Supervisor Giza declared that for $4 to $5 million the Town would have a renovated 76,000 square foot building for the police and courts. The Trautman Feasibility Study of 2003 estimated the total cost at $8.5 million, including property purchase price of $1.63 million. From the get-go the construction/ renovation costs for this white elephant was under stated/under estimated.
In the 2003 Trautman Feasibility Study the cost of a new build was estimated at $13 million. That cost estimate was for a new build of 76,000 square feet in size. Had the town board considered a new build of half that size, the cost would have been $6.5 million for a 38,000 square foot “state -of-the- art” building. The town has now bonded $10 million to build a 26,900 square foot building on Town owned property on Pavement Road. The town also has $350,000 of grant money to work with. And, the town has spent $1.63 million to purchase the Colecraft Building and spent hundreds of thousands of dollars to repair/maintain the building and in lost revenue by taking the building off the tax rolls.
Despite the uncontrolled spending taking place in the town, and where the debt load has doubled in eight years, the town will be spending another $300,000 to $500,000 for a police shooting range it does not need.
Lastly, the Colecraft Building received a letter shortly after resident Donald Symer visited the building for an invited walk through by invitation of Supervisor Giza. Mr. Symer expressed grave concerns regarding the structural integrity of the then 50-year old building, the necessity and expenses involved in roof repair/replacement, etc. Had Mr. Symer’s concerns been taken seriously, along with his suggestion to build new then, the Town could have saved in excess of $6 million through the eight year process.
Mr. Aquino, I beg to differ with you, but the town has not acted responsibly and has wasted millions of taxpayer’s money in the process. Read all the records you want, we were there during the entire process and "bad governance" was observed.
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