BOARD OF SELECTMEN
Natick Town Hall
April 10, 2007
7:30 p.m.
The meeting was called to order by the Chair Carol A. Gloff at 6:30 p.m.
PRESENT: Carol A. Gloff, Charles M. Hughes, Joshua Ostroff, John Ciccariello, Kristine Van Amsterdam
ALSO PRESENT: Martha White, Acting Town Administrator; John P. Flynn, Town Counsel of Murphy, Hesse, Toomey & Lehane; Donna Challis, Secretary
11 MECHANIC STREET P&S
Ms. Gloff explained that this was an emergency meeting of the Board of Selectmen regarding the purchase of property at 11 Mechanic Street. At last night’s meeting there were some open questions and the Board voted to ask for an extension. No other decisions were reached and it was understood that if an extension were not granted, there would need to be an emergency meeting for this topic only.
Acting Town Administrator Martha White distributed a memo and a copy of a settlement statement. She noted that last night there were three primary concerns that caused the Board to ask for an extension: 1) The apparent requirement that the Town be assigned the terms of the lease between CSX and Interstate Paving. This was confusing because it had been heard that the lease between CSX and Interstate had been terminated. It turned out that it was not the lease with Interstate Paving CSX was attempting to assign but a license agreement dating back to 1938 between CSX and Boston Edison. The license agreement was received and Town Counsel argued that should not be passed onto the Town. CSX agreed the Town did not have to accept the assignment of the license, but they would not take any steps to terminate it. The license allowed for termination by either party with 30 days notice. One question was should the Town accept the assignment or not accept the assignment and have the
option of terminating it.
The second issue was that Town Counsel had been provided with a dated corporate authorization. Counsel has successfully argued with them and has been authorized to put the date of the deed on the document which satisfied the concern.
The third issue was that Counsel had not been provided with the closing documents, but they arrived today and were reviewed and found to be in order.
The three major concerns had been satisfactorily addressed, but a new issue emerged today. CSX had asked for the Town’s consultant to provide a reliance letter which the consultant agreed to provide, but suggested that the Town ask for a similar letter from the CSX consultant and they agreed to provide it.
Mr. Hughes questioned if the Town wouldn’t be better off accepting the assignment and terminating it ourselves. Mr. Flynn responded that in his opinion the answer was, ‘yes’. Mr. Ciccariello inquired if there would be any legal fees involved for the Town to terminate it, but Mr. Flynn advised that it would just be a written notice from the Town.
In follow-up Mr. Ciccariello sought confirmation that all of the legal work that had been expended to date was coming out of the Conservation fund and not the general fund. Ms. White explained there was a monthly flat fee for routine work and this had been largely for routine work of Counsel that would fit within the retainer. Mr. Ciccariello felt that a lot of legal work was done on this and the Conservation Commission was the one that wanted to purchase it for conservation land so why weren’t the legal fees being expended from the conservation fund.
Mr. Hughes believed the legal fees could come out of the conservation fund but one of the Board members would have to appear before the Conservation Fund and ask them to appropriate the funds. He volunteered to do it.
Assuming the property was purchased tomorrow, Mr. Hughes noted that the beginning of next week there would be a use and occupancy license to show Interstate Paving and assuming Mr. Martin signed it, an RFP would be issued to replace the license. If Mr. Martin didn’t sign the use and occupancy the Town would be looking to evict. Mr. Flynn agreed, noting that if Mr. Martin didn’t sign he would be a tenant at sufferance.
It was Mr. Ostroff’s understanding that the property was in active use and that Interstate Paving had been subletting to Foreign Motors for storage of 75 or so BMW’s and Mercedes’. It’s been used for that for several years. Mr. Hughes commented that he didn’t want any sublease that just expanded any liability.
Ms. Gloff inquired if the current occupant was aware the closing date was tomorrow. Ms. White responded that when she spoke to him about the termination of the lease, she said the closing date was this week and talked about the issues that were holding up the closing being resolved.
Ms. Van Amsterdam inquired if the occupant would be notified the closing took place and told when to expect the documents to be forwarded to him. Ms. White noted that she had outlined some terms she thought the Board may want in the use and occupancy and if the Board voted to proceed she would ask if the Board wished to add any items. She would call the occupant.
Mr. Ostroff noted that a member of the Conservation Commission was in the audience who could perhaps comment on questions raised about future improvements and whether that would be something the Commission would own or undertake. Ms. Gloff preferred not to put the individual in that position of speaking on behalf of the whole Commission.
A motion was made by Mr. Hughes, seconded by Ms. Van Amsterdam, to take title to 11 Mechanic Street tomorrow. Unanimously voted.
A motion was then made by Mr. Hughes to designate the Chair to sign all the required documents. Seconded by Ms. Van Amsterdam and unanimously voted.
Two things she Ms. White thought were key to the use and occupancy permit were having it a month-to-month tenancy with a 30 day notice by either party and assurance that the payment terms would be the same as the lease with CSX which were $1,000 a month.
Mr. Hughes wanted to add a provision that there be no sublease without the permission of the Town. He also thought the license had to state that it was terminated upon a successful award of an RFP.
Mr. Ciccariello raised the issue of insurance noting that if Interstate Paving was using it for the intended purpose there was a lot of potential for hazardous waste. Ms. White responded that she would call the Town’s insurance agent to let them know of the acquisition of the property and advise them of the status and the intended use on a short-term basis and seek their input. Mr. Flynn recommended that Interstate Paving provide at a minimum commercial liability, worker’s compensation if there were employees, automobile, and given that they were working with motor oil environmental insurance was appropriate and possibly an umbrella of excess liability.
Mr. Flynn was asked if he would recommend an indemnification agreement, and he advised that he would.
Mr. Ostroff pointed out that the property may be part of a drainage solution and suggested the use of the property for a period of time to accomplish the drainage be included in the use and occupancy license.
Ms. Van Amsterdam inquired as to the timeframe in which the RFP would be prepared and when a contract would be awarded. Ms. White envisioned a simple RFP which would only take a couple of weeks to write. 30 days or less would be given to respond. The timeframe would be 2-3 months at the most.
As the property would be under the jurisdiction of the Conservation Commission, Mr. Ciccariello inquired if the Commission would need to vote to approve the lease of the property. Mr. Flynn’s reply was “yes”.
In addition to the Acting Town Administrator making a telephone call to Mr. Martin, Mr. Ciccariello thought something in writing, either certified or hand delivered, should be sent to Interstate Paving. Mr. Flynn agreed that more was better and suggested sending it both certified and regular mail.
On a motion by Mr. Ciccariello, seconded by Mr. Hughes, the Board unanimously voted to send a certified letter or have a letter hand delivered to Interstate Paving. Unanimously voted.
Mr. Hughes moved to enter into a use and occupancy agreement with the current tenant until a successful contract was awarded from an RFP process and that the agreement include the terms mentioned. Seconded by Mr. Ostroff and unanimously voted.
ADJOURNMENT
The meeting was adjourned at 8:10 p.m.
_____________________________
Joshua Ostroff, Clerk
| 
