June 15, 2016

MEMORANDUM
Douglas Bregman, Esquire

TO:

Grace Burnside, Esquire

FROM:

Edward S. West, Esquire (outside counsel to the TPSS Co-op)

RE:

Apparent Impasse in the TPSS Co-ops Negotiations with NDC

I regret to inform you that my client, the Takoma Park Silver Spring Co-operative (the
Co-op) and the Neighborhood Development Company (NDC) now appear to be at an
impasse in their efforts to resolve the Co-ops long-term role as an anchor tenant in an expanded
structure at the Junction (as is called for in the Citys Resolution of April 13, 2015).
As the Co-op has separately reported to the Council (and through me, also to you), ever
since the Citys RFP was issued on January 22, 2014, NDC seems consistently unable to offer
any mutually acceptable solutions to the Co-ops well-documented need for: (i) sufficient access
to its loading dock by its distributors delivery trucks; and (ii) continuity of its business
operations.
What follows is an explanation as to why the Co-op believes its negotiations with NDC
are at an impasse:
1. On May 23, 2016, the Co-op was pleased to finally receive NDCs site plan (over 10
months after the Co-op had first requested it in July, 2015 and then again on
December 8, 2015; April 13, 2016; April 28, 2016; and May 1, 2016).
2. However, NDCs May 23, 2016 site plan was accompanied by NDCs request for the
Co-op to re-check with its distributors to be certain that NDCs development would
still have to accommodate 65-feet delivery trucks (even though the Co-op had already
advised NDC as far back as July, 2015 that it had confirmed that deliveries to the Coop could only be accomplished by 65-feet delivery trucks).
3. On May 24, 2016, the Co-op contacted the two distributors who deliver products to it
several times a week. Both distributors re-confirmed to the Co-op that it would not be
economically feasible for them to send smaller trucks just to the Co-op.

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4. On May 25, 2016, the Co-op advised NDC of its distributors re-confirmation that
their sending delivery trucks smaller than 65 feet would be economically infeasible.
5. In NDCs phasing plan delivered to the Co-op on June 7, 2016, NDC responded to
the Co-op, informing it that the only way by which those 18-wheelers can deliver to
the Co-op even after NDCs construction is completed is by NDCs creating a traffic
cut-out on Carroll Avenue directly in front of NDCs new development (where the
bus stop and BikeShare now are). Note: In this case, NDCs proposed traffic cutout probably means some sort of a side area cut into the existing Carroll Avenue
roadway or sidewalk enabling the 18-wheelers to pull over into it and be unloaded.
a. NDCs permanent and only site plan solution (such as it is) would require
that up 11 pallets of the products being delivered by those 18-wheelers,
including heavy canned goods, gallons of water, and frozen and refrigerated
goods, be transported manually from the cut-out hundreds of feet in all
weather conditions just to get to the Co-ops new expansion section and even
farther to get to the Co-ops current building (which is called for in Phase II of
the plan addressed below).
b. With deliveries five times a week, NDCs proposed solution means that the
Co-op or its distributors truck drivers would have to remove the products
from the truck pallets, put them on hand carts, transport them hundreds of feet,
and then repeat this process over and over again every five out of seven days.
i. As the Council and you would imagine, NDCs so-called solution is
far too labor intensive and generally impractical to be feasible.
c. It would also extend the time that each truck would spend in that unloading
zone, thereby forcing other trucks to line up on Carroll Avenue, thereby
blocking at least one lane of traffic during each daily delivery cycle. This
backup would potentially include cars, buses, rescue vehicles, and, during
development, NDCs construction vehicles waiting to unload materials.
What is even more problematic for the Co-op is NDCs June 7, 2016 preliminary phasing
plan. As my client has repeatedly reminded NDC, a mutually acceptable phasing plan is vital to
the Co-ops ability to maintain business continuity during the entire development process.
While some business disruption during construction is inevitable, all reasonable efforts must be
made to minimize the Co-ops potential loss of revenue. For the additional reasons described
below, NDCs June 7th plan appears to show that it has not carefully analyzed the Co-ops
business continuity needs nor made a good faith effort to address them.

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6. In Phase I of NDCs June 7th preliminary phasing plan:

a. All of the Co-ops deliveries, parking, parcel pickup, and trash collection
would take place in the Turner Building parking lot which currently has only
19 spaces; it would be the only parking available for customers and staff
during the entire construction process.
b. There would be no available loading from the City-owned property during
construction.
c. Small truck loading would take place via the parking lot on the east side.
d. Trash dumpsters would be relocated to this parking lot as well.
e. Because there is no way to unload 65-feet delivery trucks on the Turner
property and have those trucks access the east parking lot and depart from the
lot in a manner that is acceptable from a turning radius perspective, NDC
proposes a two-step delivery process:
i. Short term warehouse space would be rented (presumably by NDC at
its sole expense) near the location of the Co-op. 65 feet trucks would
deliver and drop off products at this location.
ii. Products would then re-loaded and trucked to the Co-op via short
trucks using the same approach outlined above.
f. This approach would require warehouse space be rented (presumably by NDC
at its sole expense) for approximately six months and the rental of additional
trucking and labor (again, presumably by NDC at its sole expense) to load
merchandise from the 65trucks onto the smaller trucks. It would also require
additional insurance (presumably by NDC at its sole expense) and a Co-op
receiver to wait at the warehouse to examine and accept deliveries as they
came in.
g. According to NDC: The majority of the parking spaces in Turner property
east parking lot would stay in place during the construction. There would be
some limited impact to make the loading logistics and trash hauling operations
work.

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h. NDC has represented to the Co-op that it is working to obtain relationships

with additional parking providers in the immediate vicinity of the Co-op.
These would include the Fire Station to the west.
i. NDC proposes the creation of LOADING ONLY SPACES in the Turner
property parking lot so that customers do not have to haul their groceries to
their vehicles which are not parked on the site.
i. Under NDCs approach a customer would shop for their groceries and
then retrieve their vehicles. They could then use the Loading Only
spaces to load their cars and then depart. These spaces would be used
only for loading and not for general parking.
7. In Phase II of the NDC plan,
a. small truck loading would continue to take place via the parking on the east
side of the property.
b. the large truck loading area would be operational and used for both the Coops large truck deliveries and NDC construction deliveries.
c. deliveries would be unloaded in this area and moved to the side loading dock
on the east side of the building.
d. the LOADING ONLY SPACES in the Turner property east parking lot
remain, as do the trash and recycling bins.
My client responded on June 8, 2016 to NDCs June 7th phasing plan with some preliminary
observations and questions:

The Co-ops Marilyn Berger reminded NDC that, as it explored the possibility of
utilizing a warehouse, NDC needed to keep in mind such a facility would have to
have refrigerated and frozen sections in addition to dry goods. The small trucks would
also have to have refrigeration and frozen options.

My client expressed great concern about the section of the phasing plan that states:
The majority of the parking spaces in Turner property east parking lot would stay in
place during construction. There would be some limited impact to make the loading
logistics and trash hauling operations work.

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o Because NDCs proposal is to include trash, deliveries, parking, and customer

parcel pick-up in the Turner parking lot, the Co-op believes that the impact
would certainly not be limited.
o There are currently only 19 spaces in that lot, including the mandatory spaces
allocated for handicap parking. The Co-op requires two large dumpsters (trash
and recycling) that are 6 wide and 7 deep and one smaller one. By code,
these have to be contained within security fencing. They also need space for
six small compost bins.

On June 8th, my client requested that NDC have someone sketch out how this could
all fit into such a small space. An area for just the trash and compost would take at
least 20 across current parking spaces. The area designated for truck deliveries
would have to take up significantly more space. Plus, there is the customer pick-up
area.

Another concern raised by my client is NDCs idea that shoppers will park elsewhere
in the neighborhood, leave their purchases in their shopping carts, fetch their cars, and
return to the lot to pick up their groceries.
o Where would the Co-ops customers then leave those shopping carts?
o If the Co-ops customers have to park elsewhere and traffic delays them, what
happens to the safety and quality of their purchased frozen items such as ice
cream, which may be sitting outside in a shopping cart in the summer sun?

NDC responded on June 8th to my clients initial June 8th feedback (and concerns) about
NDCs concepts by telling Ms. Berger that the Co-op should contact its consultant, the
Development Cooperative, to see if they have any ideas.
Given that the Co-op and its consultant had already reviewed the Co-ops delivery needs on
several occasions and shared each analysis with NDC, my client replied to NDC, asking it to
instead have its architect and engineer address each of the Co-ops concerns based on the
research NDC did in preparation of the phasing plan. On June 13, 2016, NDC contacted my
client to say it is still working on answers to the Co-ops concerns.
Request for Action by the City Council
In July, 2015, the Co-op submitted its seven page specifications document to NDC which set
forth in great detail the Co-ops loading dock access and business continuity needs. As has been
explained to the Council and you several times, despite its length, that document was only meant
to be an initial framework for the subsequent collaborative dialogue between NDC and the Co-op
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that would eventually lead to a mutually acceptable site plan meeting the Co-ops business needs
while still fitting into NDCs overall Takoma Park Junction redevelopment.
However, as proven by the foregoing facts (especially as stated in Paragraph 5 above), NDC
has not displayed its commitment to assuring even the most basic underlying aspects of the Coops needs: the Co-ops interim and long-term ability to survive and thrive both during and after
construction.
The Co-op is aware that NDC and the Council appear to be finalizing a Land Development
Agreement. The Co-op therefore respectfully requests that, as part of its on-going negotiations
with NDC, the Council take into consideration NDCs seeming inability to resolve, in a mutually
satisfactory manner, the issues of the Co-ops delivery truck logistics and its need for the
continuity of its business operations.

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