A PLACE TO BE
Friday, January 15, 2016
THIS $1.013 MILLION DREDGING STEP BY STEP
Although the Treasurer admitted that he and the rest of the Directors have no clue as to what the final dredging will cost, he did express with the utmost certainty that every penny of this assessment will at least be spent.
Any dredging business that was done behind closed doors at these 70
executive meetings occurring from May 2009 thru December
2015 is unknown. Pertinent comments or questions towards an action that was taken will be highlighted in BLUE.
Let this long journey begin,
2004, canals E,F,G, and H
(privately) were dredged.
2009, at the last 4
Regular Meetings of the year, several new Directors with navigational issues made dredging an issue
again.
Jan. 27, 2010 Regular
Meeting, President of C.R.A, a Houston company doing dredge services was introduced by Dir. Bergsma and gave dredge study prices.
Feb. 24, 2010 Regular
Meeting, President Burke addressed
dredging rumors and reminded owners that the dredging issue was tabled until March’s
Annual Meeting.
Mar 6, 2010 Annual
Meeting, M.O. Berry asked if dredging was going to be budgeted. After a
brief discussion there was an overwhelming show of hands by owners not in favor of
dredging. Directors tabled this until next year for further study.
March 24, 2010 Regular
Meeting, motion failed to do a canal topographical study.
April 28, 2010 Regular
Meeting, Treas. Steffensen said we don’t have $15,000 for a study. Dir.
Gagan asked if a partial study is possible. It was pointed out that in 2004 canals E,F,G,
and H (privately) were dredged, which leaves canals A,B,C,D remaining to study.
Aug. 26, 2010 Regular
Meeting, motion passed to have owners respond by letter on dredging.
September 22, 2010 Regular
Meeting, 447 lots responded by letter. Results were that 43% voted no to dredging, 39.5%
yes, 85% would have a financial hardship with an assessment of $499+. Of 190 boat owners, 34 had problems getting their boat off their lifts
and 12 had navigating issues at the openings of channels H, B and A.
Why wasn’t this part of the discussion last month, especially the financial hardship part?
Oct. 27,2010 Regular
Meeting, motion was passed to leave the dredging issue up to owners at the 2011
annual meeting. Director Bergsma stated the Board has obligations to dredge
canals regardless of price or face potential outcomes of legal litigation.
M.O. Berry sued the Association around this time. Coincidence?
November 2010 --- August
2011, Dredging was not discussed in open forum at Regular Meetings apparently due to M.O.
Berry’s dredging lawsuit.
September 28, 2011 Regular
Meeting, motion was passed to accept the agreement made by the attorney for the
M.O. Berry lawsuit. Motion was also passed to obtain bids for maintenance of canals and that Dir. Gagan be in charge of receiving them.
Was this agreement
accepted and if not, why not?
Nov. 16, 2011 Regular
Meeting, Dir. Gagan reported bids from five different companies. GM Horner said
the Corp. of Engineers had received applications.
What happened with these
five bids?
Jan 25, 2012 Regular
Meeting, GM Horner confirmed USACE reviewed all applications sent and are
awaiting an authorization letter for Freeland’s property. GM Horner reported a
third Rodriguez Brothers meeting. He added they should provide a significant
savings on the transportation of equipment since they currently are dredging in
SPI plus they offer services to dredge under boat slips.
Why wasn’t there followed
through with this? Especially when it appears there was a disposal site the following month ready to house three fourths of the dredging material?
Feb. 22, 2012 Regular
Meeting, GM Horner reported another property owner is able to accept
approximately three quarters of our estimated dredge material.
March 28,2012 Regular
Meeting, motion was passed to dredge canal A to certain specs and offer M.O. Berry
attorney fees from $5,000 to $10,000.
Why was there no follow through with this Board approve
motion? I found nothing in the Minutes that shows this was reversed?
May 23, 2012 Regular
Meeting, GM Horner reported information about two new sites for dredge disposal
were sent to Reagan Richter ACofE for review When approved, the application
process will begin.
April 24, 2013 Regular
Meeting, GM Horner reported site permit 2 weeks away, site insurance questions
are being looked into by our insurance rep. Rick May.
May 22, 2013 Regular
Meeting, GM Horner reported LIV was awarded a 4yr. dredging permit on May 21,
2012.
June 26, 2013 Regular
Meeting, motion passed to approve Belaire Engineering.
Where did Belaire
Engineering come from? Minutes do not
show a Board approval to seek out this company. How much did we pay them? Did our Board follow this same 2008 Bid Requirement Policy our Village attorney recently cited to base his opinions on? Nothing in the Minutes indicate the "bidding process requirements" were waived prior to Belaire's approval and waived once more so Belaire may obtain three dredging bids overriding what our bid policy clearly mandates shall be our GM. Should not any policy protocol that's been waived be noted in the Minutes?
January 22, 2014 Regular Meeting, Directors received 3 Belaire Engineering dredging bids from President Chapa. He reported that Derrick Construction’s $832,000 bid was the lowest bid and the only one that met all requirements that were requested. He stated one was not bonded and one was open ended for price increases. He also said due to counsel recommending that a dredging company be picked before M.O. Berry’s dredging trial, we need to approve one in February’s Regular Meeting.
January 22, 2014 Regular Meeting, Directors received 3 Belaire Engineering dredging bids from President Chapa. He reported that Derrick Construction’s $832,000 bid was the lowest bid and the only one that met all requirements that were requested. He stated one was not bonded and one was open ended for price increases. He also said due to counsel recommending that a dredging company be picked before M.O. Berry’s dredging trial, we need to approve one in February’s Regular Meeting.
Was not Belaire contracted and paid to provide 3 dredging bids that met certain requirements. If so, why would this be acceptable?
Motion passed 6-2 to have a new law firm represent L.I.V, with Rafael Garcia Jr. as Village attorney. This came after passed motions in May of 2013 to seek new legal services and June 2013 to replace Ramona Kantack Alcantara with Mr. Garcia as lead attorney for the Cowen lawsuit case.
3/26/2014, Regular Meeting, motion was passed to acquire loans to cover the "approved" $832,290.00 Derrick Construction dredging bid.
3/26/2014, Regular Meeting, motion was passed to acquire loans to cover the "approved" $832,290.00 Derrick Construction dredging bid.
Minutes do not reflect that the Derrick Construction bid was approved.
April, 2014, M.O. Berry
won lawsuit, see
https://view.officeapps.live.com/op/view.aspx?src=http%3A%2F%2Fwww.rcclaw.com%2FTrial-Activity%2FMaurice-O-Berry-vs-Long-Island-Village-Owners-Association-Inc.doc
https://view.officeapps.live.com/op/view.aspx?src=http%3A%2F%2Fwww.rcclaw.com%2FTrial-Activity%2FMaurice-O-Berry-vs-Long-Island-Village-Owners-Association-Inc.doc
7/23/2014 Regular Meeting,
motion was passed to approve the Derrick Construction $832,290 bid that months
prior was unofficially agreed upon verbally.
I found nowhere in my records or
in the Minutes of our Board verbally approving this bid in the open sessions of 2014's January or February Regular Meetings, nor was it even discussed
in the open sessions of 2014's February and March Coffee/Workshops. Which begs the question was this verbally approved in a closed door session?
December 17, 2014 Regular
Meeting, Directors have problems with dredging insurance and loan applications.
June 24, 2015 Regular
Meeting, motion passed to have Director Champion form and head a committee to
revisit the dredging contractors still available for our upcoming dredging.
The Minutes clearly show that every Director was in favor of reviewing new bids. Why did the mindset change two months later?
August 26, 2015 Regular Meeting, President Guerra appointed Pat Burke to the Board with his tie-breaking vote.
September 23, 2015 Regular Meeting, Director Champion’s request for a Columbia Dredging representative to give a presentation which was said could possibly save the Association up to $300,000 in dredging cost and would upon request be open to dredge under boat lifts, was denied by President Guerra.
Director Waller received no answer after asking if LIV is locked into the Derrick’s dredging contract.
September 23, 2015 Regular Meeting, Director Champion’s request for a Columbia Dredging representative to give a presentation which was said could possibly save the Association up to $300,000 in dredging cost and would upon request be open to dredge under boat lifts, was denied by President Guerra.
Director Waller received no answer after asking if LIV is locked into the Derrick’s dredging contract.
Why was this denied, this guy was invited to the meeting and was there?
December 4, 2015
rescheduled Regular Meeting, Director Champion was removed as Director for a past condominium fee arrears.
Although the Board has the right to do this, it was said that
this same Board ignored enforcing this arrears Bylaw policy on two previous occasions. Enforcing now was seen by many owners to be a majority vote power play at affecting the voting outcomes of upcoming major issues, one example being expressed was dredging.
December 16, 2015 and
final Regular Meeting. Director McBride made motion to acquire 3 bids with
requirement specs being inline with the canal A court order, dredge canal A only, and
barge the dredge material to an alternative site. Reasons? The current dredge plan does not solve the
owner’s canal problems, plus canal H may soon be dredge eligible, and a different pending
dredging lawsuit that could result in having a court order mandate different dredge
specs, it would eliminate L.I.V. pay to have a redo of the dredging.
The
Village attorney was called on to give his opinion. Again to paraphrase he said with Director Burke’s help, he found a
2008 Board approved motion that mandates a competitive bidding process, meaning that a bid requirement policy is in effect. He pointed out that this process was followed
and the Board passed a motion to enter into a contract with Derrick
Construction. For that reason and since the lengthy delay caused by
Mr. Freeland has been ironed out, it’s my opinion that we must now honor this
verbal contract. He added that Director McBride’s motion is inconsistent with
the Derrick Construction contract which does include Canal A along with personal
assurances to him from Derrick Construction that canal A would be dredged to the specs the court had ordered. He also
said that it was his opinion Derrick Construction would have a viable lawsuit
if L.I.V. doesn’t honor their own mandated competitive bidding process and
previously passed motions.
The push-back n this opinion started with Director Waller who said if he was shown what the court order specifically mandated he would not have voted yes for the Derrick Construction bid in 2014. He added that this Derrick Construction bid "does not" follow the court’s
guidelines, not to mention it doesn’t help any owner with the problem of getting their boats
off their lifts. Director McBride jumped in and pointed out that no contract was signed nor
was a start date given. President Guerra quickly recognize Director Weaver but
Director Waller politely interrupted, asking the attorney while raising Derrick Construction bid proposal in the air if he had read this? The attorney said no.
First off, why weren’t
these assurances the attorney said were personally made to him not in the Derrick Bid? Second, why didn't our Village attorney read this now 19 month old Derrick Construction Bid?
Director Weaver was again
recognized and said he’s afraid if we don’t do this dredging of all the canals with the same specs as called for in the M.O. Berry’s case, we’d be opening ourselves up to a bunch
of jump on the bandwagon lawsuits. Director Burke jump in with saying we do have a legal opinion
here, and in my opinion loss profits is a very good lawsuit that Derrick
Construction would probably sue us for, a breach of contract as our attorney said. She added that the reason basically, on why we lost the Berry case was because we hadn’t tried and with doing what we have already agreed to do gives us a good faith discretionary
action argument in future cases. I think we are bound by our attorney’s opinion
and should accept it.
So there you have it. We have reasons for doing this near $1.1 million dollar dredging which has been repeatedly argued doesn’t solve most of
the owner’s problems. Reason one is to keep the dredging company from suing our Association over some verbal contract perspective. Second, to help keep any new owner here from suing. Third, just in case that fails, then the Association will be able to give the court a good faith
discretionary action argument saying we spent over $1 million on dredging that was unsatisfactory to the owners.
Boy, one just can’t make this stuff up.
Director Labbee-Holdeman said because of the 18 month delay, would not things have changed, such as fuel prices which should be a good reason to request a reevaluation of this Derrick contract. Director Waller agreed and added that he would even be opened to
spend more money if it solved the problems as to paying less for
something that does not. A seemingly agitated President Guerra moved that this motion be voted
on. Director McBride ignored him and asked the attorney if this 18 month delay
falls under the statute of progress? The attorney said no because the agreement has to be
in writing in order to show such a violation.
Now think about that for a moment. Our Association has to have it in writing in order to show that Derrick Construction had violated
something but Derrick Construction doesn’t have to have a thing in writing in order to win in court that the Association violated something.
Motion failed on dredging canal A only. Votes, Waller yes, McBride yes, Weaver no, Burke no, and Labbee-Holdeman no.
Director Burke immediately
made the motion to proceed with the dredging we have and then move into the
assessment process. Director Burke added nothing prevents us from discussing with Derrick Construction the time passage
changes.
Director Waller asked how can we assess owners without knowing final figures? Director Burke said basically that we can adjust for any savings after the fact.
Derrick Construction dredging motion passed. Votes, Weaver yes, Labbee-Holdeman yes, Burke yes, Waller no, McBride no.
Director Waller asked how can we assess owners without knowing final figures? Director Burke said basically that we can adjust for any savings after the fact.
Derrick Construction dredging motion passed. Votes, Weaver yes, Labbee-Holdeman yes, Burke yes, Waller no, McBride no.
President Guerra directed the attorney to evaluate the Derrick Construction contract and get
in touch with Belaire Engineering to formalize all this.
Director Labbee-Holdeman
asked if we ever had a dredging committee? The answer was no, but was told those who have been involved were the old and current GM, Director Steffensen, and Amando. Labbee-Holdeman then asked if these people may be present
when the attorney started renegotiations with Derrick Construction and agreed later that the current GM who has a way to contact Steffensen and Armado attend.
Motion approved to assess each lot owner $990. Votes Burke yes, Weaver yes, Labbee-Holdeman yes, Waller no, and McBride no.
Anyone in our Park can be an armchair quarterback on what our Board does, but come on. This has been a train wreck on steroids compared to the parking lot. When will it end?
Motion approved to assess each lot owner $990. Votes Burke yes, Weaver yes, Labbee-Holdeman yes, Waller no, and McBride no.
Anyone in our Park can be an armchair quarterback on what our Board does, but come on. This has been a train wreck on steroids compared to the parking lot. When will it end?
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2 comments:
Everything I can find says a verbal contract in Texas is not valid after one year if not performed.
A list of verbal contracts that are prohibited by law in Texa include:
• An executor's promise to pay the debts of a decedent
• Marriage agreements. Prenuptial agreements are also generally prohibited
• Real estate agreements that are either contracts for sale, lease agreements for longer than one year, or related to real estate commissions
• Any agreement for a performance not completed within one year
• Medical care agreements, promises or warranties other than those made by licensed pharmacists.
• Loans from certain financial institutions
• Contracts for $500 or more for the sale of goods
• Agreements related to a lawsuit
now that we do not have to spend over a million what should we do ?
do we follow the mandate of the court and dredge only canal "A"
keeping in mind that it would be less $ but may, in the long run, add costs for transporting equipment.
do we go ahead and dredge all, including "H" and then be done with it for probably 10 years and possibly avoiding another lawsuit ?
we have a committee working on finding the best way to go. it will be interesting to see what they can accomplish with a new board.
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