MINUTES
OF THE MEETING
OF
THE PORT OF THE
COMMUNITY
IMPROVEMENT DISTRICT
The regular meeting of the Board of Supervisors of the Port of the
Islands Community Improvement District was held
Present and constituting a quorum
were:
Richard Gatti Chairman
Bernard Wolsky Vice
Chairman
Ted Bissell Assistant
Secretary
John Robinson Supervisor
Also present were:
Mr. DeCocq District Manager
Dan Cox Attorney
Tim Stephens Utilities Director
Numerous Residents See
attached list
FIRST
ORDER OF BUSINESS Roll
Call
Mr. Gatti called the meeting to order and Mr. DeCocq called the
roll.
SECOND ORDER OF BUSINESS Approval
of the Minutes of the May 21, 2004 Meeting
Mr. Gatti stated that each
member of the Board had received a copy of the minutes of the
Mr. Bissell asked who edits
the minutes?
Mr. DeCocq stated it goes through
several processes. Those are
court-reported minutes and someone goes through and reads them. The problem is if we do not get corrections
in on time, they do not make it to your packet.
Mr. Bissell stated Mr.
Burgeson last month told me to go home to my mother and it is not in here.
Mr. DeCocq stated if you would
like that in there, we can revise that for you.
Mr. Bissell stated I would
like it in there, because this is an ethics issue.
Mr. DeCocq stated I would be
glad to put that in the minutes. We have
a court reporter translate these and they are not exactly verbatim. It is more of a summary sometimes. They make a judgment call and we can revise
that for you.
Mr. Gatti stated that is fine
if you prefer to put that in. It is
certainly appropriate for you to ask for that.
I take responsibility for letting that situation get out of hand. Things should not become personal on this
Board. For any incident, this is
business and we are conducting business in the best interest of the community
and cannot get personal. We need to keep
away from this type of thing.
On MOTION by Mr. Bissell seconded by Mr. Wolsky
with all in favor the minutes of the
THIRD ORDER OF BUSINESS Discussion
of the Proposed Budget for Fiscal year 2005
Mr. Gatti stated this item will take a long time. Should we defer this to later in the meeting?
Mr. DeCocq stated we can handle the other items first.
Mr. Gatti stated it makes sense because maybe everyone
does not want to sit through all of that.
Whereupon, this item was tabled and the next item
followed.
FOURTH ORDER OF BUSINESS Discussion
of Easement Vacation for
Mr. Gatti stated next is
discussion of easement vacation for
Mr. DeCocq stated this item
was left from the last meeting. There
was discussion of whether you wanted to draft a letter to the County, stating
that you had no objection to the vacation of easement.
Mr. Gatti asked this is your
Mr. DeCocq stated this
discussion was held last month. This may
have been left on as an oversight from last month.
Mr. Gatti stated let me make
sure my recollection of this is correct.
Mr. DeCocq stated the record
will show that Mr. Burgeson has joined the meeting.
Mr. Gatti stated the minutes say that we had no
objection, under certain provisions, that he can proceed.
Mr. Cox stated the minutes from June 21, 2002 was when we
approved entering into a use agreement with the owner of Lot 86, which would
permit the encroachment provided the improvements were built to the
specifications that have been approved by the District's engineer.
Mr. Gatti stated that has been accomplished.
Mr. Cox responded I do not know.
Mr. Bissell stated in the minutes, when they first did
it, that did not meet the specifications.
They redid it and Benson said that it met the specs.
Mr. Gatti stated the status is now that the thing is
complete; the County will not issue an occupancy permit without a letter from
us stating what is in the minutes. In
fairness to this man, we are obligated to write that letter and we should
direct counsel to do so or Mr. DeCocq.
Mr. DeCocq stated I need some clarification. You need to draft a letter to the owner?
Mr. Cox responded the County requires, when you request
the County vacate or modify an easement in favor of the County, all of the
parties that have an interest in that easement area have to consent and give
letters of no objection. It is not
consent; just that you have no objection.
Mr. Gatti stated that is what we did.
Mr. Cox stated we have, by virtue of plat dedications,
the responsibility for the swales and the right to use those swales for
drainage. That is why we are being asked
for the letter of no objection.
Mr. Gatti asked would you write that letter, please?
Mr. Cox stated it should contain the same conditions that
are in the use agreement.
Mr. Bissell stated you have had two or three
blowouts.
Mr. Gatti stated that beach is all the way across that
property, adjacent to him and across the ease to him. That is not the problem. It is shallow water. There were sharks swimming in there.
Mr. Cox stated I am not sure we have jurisdiction over
the canal area.
Mr. Gatti asked can we get this cleared up finally? We have an obligation to do what is precisely
what is in the minutes, but for this gentleman to be denied an occupancy permit
due for lack of our action is unfair.
Mr. Wolsky asked do we now have to do the same thing for
anybody who is going to get a C.O.?
Mr. Cox stated we imposed the conditions that it is built
to specifications that were approved by the engineer. The purpose of that was to make sure the
integrity and capacity of the swale was maintained.
If that situation comes before the Board again, where
someone proposes a use agreement, you can impose whatever conditions you feel
are appropriate before granting the use agreement. Here, we have the situation of having said we
consent to this use, but now we are saying we do not consent to the County's
interest in that easement, which in no way affects our interest in the easement
and our rights under the use agreement, is a little incongruent.
Mr. Gatti stated I want to iterate the minutes so this
gentleman can get an occupancy certificate.
Mr. Wolsky stated I would like to know how that decision
will affect the rest of the people in the community.
Mr. Cox responded the owners of Lot 86 submitted plans
that showed an encroachment into our easement.
The engineer reviewed those, came back with recommendations for changes
to the plans and said the integrity would be maintained. They agreed to make those modifications to
their plans. The engineer reviewed and
approved the revised plans and they brought that to this Board. This Board debated it and consented to the
use of the easement area.
Mr. Wolsky stated implicit in that agreement is the fact
that the swale has to hold a certain amount of water. There are certain swales that do not hold
this amount of water.
Mr. Cox stated that has been corrected.
Mr. Wolsky stated that was pointed out to the people who
have those swales. How will this
decision affect them?
Mr. Cox responded I see no impact.
Mr. Wolsky asked you see no correlation between our
deciding this swale is supposed to hold a certain amount of water? Where did you get those figures?
Mr. Cox responded the engineer did.
Mr. Wolsky asked where did the engineer get those
figures?
Mr. Cox responded I do not know.
Mr. Wolsky stated this is not personal. I am simply asking a question, has the
engineer decided that this swale is supposed to hold a certain amount of
water? I question where those figures
came from and if those figures apply to every other swale in the area.
Mr. Cox responded I do not know how much he determined
how much it was supposed to hold or how much it would hold prior to the
modifications as it existed and matched that capacity. I do not know the answer to that.
Mr. Wolsky stated before we make a decision like this, we
need those figures.
Mr. Cox stated that was done at the point where we
entered into the consent.
Mr. Gatti stated this is a gentleman who has met all the
requirements that we asked him to meet.
He has been sitting on a house that he can not obtain an occupancy
permit for, for about two years. We told
him he could do a certain thing and that is our mistake. We told him he could do this if he met
certain conditions, which he has. He
simply wants a letter saying the minutes say this to take to the County and get
his occupancy permit.
Your issue is separate from this. It is regarding whether another situation
comes up. I will tell you how this was
determined. If we made a mistake, we
did, but the minutes will say specifically what actions we have taken. We owe this gentleman a letter so he can get
his occupancy permit. How Mr. Benson determine
that cross section? The cross section in
this gentleman's area was different. The
capacity of the swale was maintained and that is determined and that is what
the condition was and what happened.
Instead of a concave swale, it was square.
If you go out there and look
at the property west and east of him, his cross section carries more water than
any swale on that block. How can we hold
this gentleman up? I have no personal
interest here; it is just that this is unfair to the guy.
Mr. Wolsky stated I am just
concerned that whatever decision we make is not a person decision applying only
to this man. It must apply to everybody
else in this neighborhood.
Mr. Gatti stated I agree.
Mr. Cox stated this issue and
how that capacity was determined was; if it was not addressed at the time we
did consent to use agreement that is when it should have been addressed. I believe that Mr. Benson stated he was
comfortable with the revised plans and they would hold the capacity that was
needed. How he determined that, I think
we should have discussed that point.
Mr. Gatti stated we will save
that as a separate issue. I suggest we
get this out the door and get into that discussion later. If a certain situation applies to this man
and his swale is supposed to contain a certain amount of water that applies to
everybody in the community.
Mr. Cox stated I do not know
what it was supposed to hold or what it was holding as it existed. That is where I am not sure your statement is
exactly correct.
Mr. Wolsky asked so, you are
saying then, whatever a swale holds is all right?
Mr. Cox responded I am saying
is I do not know how Mr. Benson determined what the capacity should be.
Mr. Wolsky stated I would like
to have an amendment then to that particular situation. If the C.I.D. is going to adjudicate matters
like this and make a determination, what the County is saying is that the
C.I.D. is responsible for determining what amount of water is in the swale in
my opinion. They are saying, we will not
grant a C.O. to this man until the C.I.D. says that this is okay.
Mr. Cox stated the County will
not grant the C.O. because there is an encroachment in a County easement, which
is "X" feet wide. This
encroachment is in that easement. They
have asked the County to vacate that encroachment in that easement and the
County can issue the C.O. The County is
not making any determination on the capacities, who is responsible for
maintenance or anything like that in regards to this easement.
They are only going to
determine whether the County wants to continue to have that easement there or
not. As a condition for the County to
even co
Mr. Gatti stated our minutes
show that we have taken action to say we do not object to this. I simply want to give this gentleman a letter
stating that.
Ms. Wolsky asked is this one
particular easement on that lot?
Mr. Cox responded yes.
Mr. Robinson stated I missed
that week, so I want to make sure I have heard this right, about how the Board
made a mistake by doing it in the first place.
I want to make sure that is understood in the minutes. It says right here, the motion by Mr. Wolsky,
seconded by Mr. Robinson with all in favor,
the request to reduce the drainage easement for L86 from twenty feet to fifteen
feet and consent to use area agreement was approved subject to approval
required, which would be the County.
Now we are coming back after
everything is done, saying the County is not going to do it unless you give us
permission. We thought that was covered
under the approval.
Mr. Cox stated we said in the
use agreement, the mere grant by the District of consent to use area did not
eliminate the need for the lot owner to obtain other governmental approvals
required. That was put in to cover that
language of subject to approval of other entities.
Mr. Gatti asked do you need
action from the Board to write that letter?
Mr. Cox responded I would
prefer that. That would be to write the
letter that says we have no objection to the County vacating its interest in
the drainage easement subject to the satisfaction of the conditions contained
in the consent to use agreement.
Mr. Wolsky asked can you put a
statement in there that this approval of the County vacating their interest in
the easement does not apply to other property in this community?
Mr. Bissell MOVED to direct counsel to write a
letter stating the C.I.D. has no objection to the County vacating its interest
in the drainage easement, subject to the satisfaction of conditions in the
consent to use agreement.
Mr. Cox stated I do not think there is any rule that he
cannot.
Mr. Robinson stated this easement by the County was not
required before it was done. Is that
what we are saying?
Mr. Cox responded that is correct.
Mr. Robinson asked is that just something they are going
to go back and get now?
Mr. Cox responded right.
Mr. Robinson stated that is to get the County's
permission to do it, if the County says we are not going to give them
permission. We will give up our easement
if the C.I.D. says we can.
Mr. Cox stated we are just saying we have no objection to
getting it on the table for co
Mr. Robinson seconded the prior motion and on
VOICE VOTE with three voting Aye and two voting Nay, the motion was passed.
Mr. Gatti stated that is the end of the issue. The Board has directed counsel to write the
letter in accordance with the minutes.
Mr. Cox stated that is with the clarification that it
does not apply to any other portion of the easement.
Mr. Gatti stated I appreciate Mr. Wolsky's point and it
is well taken, but that occurs even without that statement. Somebody cannot just do something without
permission. That is what the County is
doing. They are asking, do you
object? This will happen on any other
piece of property that comes before us.
Mr. Wolsky stated there are
other pieces of property in this community that do not conform to the County
standards. This has been pointed out to
the individuals involved, who have taken no action to correct it. The C.I.D., which is basically responsible
for that, according to information on my plat, has refused to take action on
this. I co
Mr. Bissell stated we need to do something, but we need
to research it first. The minutes show
that when this was brought up, I contacted the County and said the County had
jurisdiction. Nobody else knew
this. It is in the minutes. I am saying we should research each
application before we take any action.
Mr. Wolsky stated the C.I.D. should take responsibility
to see that construction is done correctly in this community where it
applies. The main reason for having a
swale is to hold the rainwater that washes off the roads and put it in a
retention area so it can perk into the ground.
That is the C.I.D.'s responsibility.
Does anybody dispute that?
Hearing no response,
Mr. Wolsky stated we should undertake some sort of
procedure to insure that is done in the future.
Mr. Cox stated the engineer worked with the lot owner's
engineers to meet his satisfaction that the swale was going to hold the water
it needed to hold.
Mr. Wolsky stated that is not being done, though.
Mr. Cox stated it was done in this case.
Mr. Wolsky stated in this particular case, yes. This man wanted to do things correctly, so he
asked the C.I.D. Board to do that. What
about the people who do not undertake that?
Mr. Cox stated that is a County code enforcement
issue. We do not have police powers.
Mr. Wolsky stated I took my situation through the code
enforcement business. Code enforcement
says the County maintains the only responsibility they have is to insure that
the water than runs of impermeable substances on a person's lot, like the roof,
concrete tiles and so forth, does not impact the neighbors on either side. That is what the County says.
I have found nobody to accept responsibility for
maintaining the swales.
Mr. Cox stated the C.I.D. is the responsible party for
maintaining those swales. That goes to
level of standard. What level of
standard the Board wants to set, I believe was address a few months ago during
the last rainy season, when we had eight inches in a day.
Mr. Wolsky stated Mr. Benson did a survey and said that
the swale should be 5.0 feet above the water line. There are swales that are not at that level
and no corrective action has been taken.
Mr. Cox stated that is the level of standard that the
Board has adopted. The Board can go in
and maintain those swales, but elected not to.
Mr. Wolsky asked how about setting up a procedure that
insures that the swales are done correctly before hand. It is unfair to charge everybody in the community
to correct a swale that was deliberately neglected. When our engineer says your swale is six
inches too high, it is not the responsibility of all lot owners to use C.I.D.
money, all of our money. It should be
the responsibility of the person whose swale is incorrectly done for them to do
it.
That procedure should proceed getting a C.O. so it is
done correctly.
Mr. Gatti stated the motion was passed and Mr. Cox is
directed to write the letter. Do we need
to review anything else before getting to the budget?
Mr. Bissell stated we need the staff reports.
Mr. Gatti stated we will do that first.
FIFTH ORDER OF
BUSINESS Staff
Reports
A. Attorney
Mr. Gatti asked can you tell us what happened on June
4th?
Mr. Cox responded on June 4th, the debtor basically
admitted they could not affect a plan for reorganization. The judge ordered the case dismissed with
several conditions imposed upon the dismissal of the action.
One of those conditions was that any unsecured creditor
and certain expenses of the bankruptcy case had to be paid from funds available
to the debtor. As to the unsecured
creditors, we could move to foreclose our interests in our security, our proof
of claim. Back from 1995 to 1997, would
have been the relevant time frame for this property. We were charging a minimum monthly utility
bill. Around 1996 or 1997 was when we
adopted the ERC concept so we could put those charges as special assessments on
the property and collect those through the tax certificate sale.
We had so many of the minimum, monthly standbys that were
not being paid. That component of our
claim is an unsecured claim in the amount of about $28,000. When they were calculating the ability to
repay the unsecured portions of her claims, they did not catch the fact that we
had that unsecured component in our proof of plan.
Once they added that back in they realized that she did
not have sufficient funds to meet the obligations of the Motion to
Dismiss. They have asked whether the
C.I.D. would co
Mr. Gatti asked that is $28,000?
Mr. Cox responded right, the implications are, if we do
not, it will probably be converted to a Chapter 7.
Mr. Gatti stated keep this simple so even I can
understand it. Ms. Marchand lost the
case. Is the judge-saying, take what she
has and distribute it amongst her creditors?
Mr. Cox stated there are two kinds of creditors, those
who have a security interest, secured creditors or those who merely loans money
or in some way are owed money, but the only way to collect that money would be
to go to court and get a judgment.
Mr. Gatti asked like the attorney that was looking for
that $100,000?
Mr. Cox responded right, that is an unsecured
creditor. When you dismiss a case, the Court
has to be satisfied that it will not be brought back into bankruptcy by a
creditor during an involuntary petition for bankruptcy. The way they do that is all of the unsecured
creditors have to be paid in full prior to the dismissal. The secured creditors, of course, have their
collateral to proceed against.
They cannot force an involuntary bankruptcy. They can only go after the collateral and
then later come back and get a deficiency judgment. After the deficiency judgment, it may be
possible to enforce bankruptcy.
Mr. Gatti asked which category is the $28,000 in?
Mr. Cox stated it is in the unsecured, the part that
should be paid before the Order of Dismissal is entered.
Mr. Gatti asked in order for us to go after that $28,000
we have to go back in Court?
Mr. Cox responded we have to go back and get a Court
judgment and that is really a separate issue.
What would happen is, if she or the entity does not have enough money to
pay all the unsecured debt it would probably be converted to a Chapter 7 as
opposed to a dismissal.
Mr. Wolsky asked what does that mean?
Mr. Cox responded that means the Court would liquidate
the estate and pay everybody in accordance with their priorities.
Mr. Bissell asked if we forgave the $28,000, who would
benefit from that?
Mr. Cox responded as to how it would affect the C.I.D.,
if we forgive the $28,000, we then have to file a foreclosure action in circuit
court, foreclose on the property, have a foreclosure sale and sell for whatever
it sells for. The C.I.D. could bid at a
minimum number and have people bid against that number.
We could ultimately end up owning the property and
turning around and marketing it. If it
goes the other way, it is the Court liquidating it and we do not have any
control of a minimum sale price. There
are additional administrative expenses we would incur through the Court.
Mr. Gatti stated it is going to cost us "X"
amount of dollars to try and get $28,000.
Mr. Cox stated we run the risk, if we demand that
$28,000, that they are not able to meet the conditions of dismissal and it goes
to Chapter 7 and when it sells, we get an unknown amount of money versus having
some control over our risk.
Mr. Wolsky stated if we forgive this $28,000 is there
another bunch of unsecured debt out there we would be setting a precedent for?
Mr. Cox responded I do not know.
Mr. Gatti asked what are the rest of the unsecured
creditors going to do?
Mr. Cox responded I do not know. I am just relaying the information.
Mr. Gatti asked there are more non-secured creditors out
there?
Mr. Cox responded yes, but it is not a significant amount
of money in the grand scheme of things.
Mr. Bissell asked if we foreclose and that became our
property, is the County still willing to pay the $900,000 for that property to
put their wells on it?
Mr. Cox responded no, the County was not giving $900,000
for the property. They were actually
paying somewhere around $620,00 for the property. For the balance of that $909,000, they were
going to have a promissory note to the debtor to the County that was to be
repaid over ten years.
Mr. Bissell asked all right, so it is $600,000?
Mr. Cox responded I would assume that they would be
interested in it. They would definitely
want another well location. They are in
process right now and I heard there will be some meetings next month that I
will try to attend a couple of. It is
the 20/25 water supply. Where they are
going to find their water supply to 20/25.
It is a new requirement that was imposed on local governments that
provide water and at some point we will have to provide our information on
where our sources are going to come from.
The County is desperate to find those because there is a
lot of State grant money tied up if you do not comply with this requirement.
Mr. Bissell asked so, if we do not forgive the $28,000,
there is a chance that we could acquire the property.
Mr. Cox responded it is the other way around? If we forgive it, we have better control over
what that property sells for at the end of the day when it is sold at
liquidation or foreclosure. I would
rather be a primary creditor at a foreclosure sale than a creditor at a Chapter
7 sale.
Mr. Bissell asked what are we going to do?
Mr. Wolsky asked would we be the primary creditor?
Mr. Cox responded yes, as far as the bond debt is really
our debt that owed to us. We, in turn,
pay it back to Allstate.
Mr. Wolsky asked what about the certificate holders?
Mr. Cox responded each of the individual certificates are
much less than the debt owed to the C.I.D.
Cumulatively, they are about the same.
Mr. Burgeson asked do we have any idea how restorations
can affect this property.
Mr. Cox stated I only know what you and Mr. Bernard have
told me.
Mr. Burgeson stated they are going to build a levy.
Mr. Gatti stated I have a report on that. I have met with those folks. I went to the public hearing. I will cover that now. I have the information on what the Corps. of
Engineers proposes to do. It affects us
in three or four ways. My concern is the
location and the height of the berm. The
protection of our irrigation source, to our access to our wells.
My last concern that I did not make a point of at the
public hearing is runoff percolation areas for our storm water. I will bring that into play.
Mr. Burgeson asked do we know where the berm is located?
Mr. Gatti responded no, we do not.
Mr. Robinson stated I have seen where the berm is.
Mr. Gatti stated you have not because the Corps does not
know where the berm is going to go? I
got established, for the record, that the berm and these other issues would not
be implemented without our input and a mutually satisfactory agreement on what
is going to happen on those four issues.
Mr. Burgeson asked so; it is the drawing from them?
Mr. Gatti responded it is just that. There is no plan. It is just the schematic. My argument is that I wanted that berm at
least a half mile away from our property line.
We want that berm to be far enough away, so aesthetically it is not a
disaster or financially to those homes on the west side. If you put a berm fifty feet from that
property line it would be a disaster.
Mr. Burgeson stated that also shows it going through the
north side property coming down the river through there.
Mr. Gatti stated right, nine feet on the west side of
Route 41 and six feet on the east side.
Again, there were people there and we established, for the record, that
they would not do anything without mutual satisfaction. They are open. They are not saying this is not saying this is
what we are going to do.
Mr. Cox stated we have a couple of issues in addition to
those four to co
Mr. Wolsky stated it would be nice to know the exact
amount of unsecured debt so we know when we make a decision on the $28,000,
that implies when we forgive that, we also forgive $115,000.
Mr. Cox stated that is exclusive in administrative costs
that Ms. Marchand has. On the minimum
monthlies, that was a charge that was done years ago. We have not done that in a long time. The only other property I can think of that
it may be applicable to is the north property.
In that case, we did file suit and entered into a consensual judgment
with the folks that owned it before Northport Development there were a couple,
Chang and Bartello. We recorded that in
the public records, which gave us the right to foreclose on that property.
Tom and Mr. Hardy came along
and bought it. At that time the Board
agreed to file a subordination agreement that we would not pursue foreclosure
of the lien at that judgment until such time as it was either sold or
developed. That is the only other
property even close to analogous to this one that I am aware of. I do not know of any situation with any past
utility fees to the North Hotel. When we
were charging, I believe it was operating and it may have been right on the
cusp.
Mr. Wolsky stated that goes
back to 1997 if I recall correctly.
Mr. Cox responded right, 1996
and 1997.
Mr. Wolsky stated that is a co
Mr. Cox responded it is
180-something on hers and 117 on Tom's.
Mr. Wolsky asked what is the
stand-by bid for that?
Mr. Cox responded it is
significant. This is just the old
utility monthly minimum that we charged.
Mr. Wolsky asked does it
include all the debt that has been accrued?
Mr. Cox responded no, all the
other debt we have is secured and will be addressed what we recover in
foreclosure.
Mr. Bissell asked will
Northport be asking us to do the same?
Mr. Cox responded the
situation at Northport is that we have that lien that has already been
established and recorded. Tom has not
mentioned that in any negotiations that we have discussed about Northport.
Mr. Gatti stated I am
reluctant to forgive anything unless it serves our best interest. What happens if we wait? What happens if we see what other people are
doing, the other non-secured.
Mr. Cox stated I would like
this to be resolved. I cannot proceed to
resolve it until we either have an order of dismissal entered or we decide we
are not going to do this and they either have to come up with more money or we
will be facing a Chapter 7 liquidation.
I do not want to be sitting here next year, talking to you about this
again.
Mr. Gatti stated we forgive
the $28,000 and another unsecured debtor does not, we are right back to where
we started.
Mr. Cox stated they have
enough money to cure all the unsecured they remembered. They just forgot about our unsecured
component of the claim.
Mr. Gatti asked what if we
divvy up the loss?
Mr. Cox responded I do not
know how many there are, but you would have to get everybody to agree. I will do whatever you want me to do. Either one of them is a process that will take
at least six to eight months. It is
equal work for me. I think you will have
better control of the outcome to go through foreclosure than liquidating by the
bank.
Mr. Wolsky MOVED to forgive the $28,000 debt and
the motion was seconded by Mr. Burgeson.
Mr. Burgeson stated I am still trying to understand
this. We forgive the $28,000 and there
is another hundred, some-odd, unsecured debt out there, they will get their
money?
Mr. Cox responded they will get theirs.
Mr. Burgeson stated I want to move on. I just wanted to make sure we understood
that. From that point on, you have to
foreclose to proceed?
Mr. Cox stated we would proceed to foreclose.
Mr. Burgeson asked so; nobody else is involved in this as
a party?
Mr. Cox responded right, all the other secured parties
are gone. You have us, the tax
certificate holders and the tax collector, who is the holder of the tax
certificate. We would file the suit. All those parties, Ms. Marchand, anybody who
has an agreement for an RV slip, all the people who have storage, gun club,
anybody who ha san interest in that property is going to be named as a
Defendant.
One of the conditions of the
Order is that we have to be provided within ten days of the Order a list of
anybody who has an agreement for a slip or storage out here, there name and
address so we can serve them. We get the
service and the case at issue. We set it
for summary judgment and hopefully by some time around October, we will be in a
position to argue the Motion for Summary Judgment, get that Order and hopefully
be done with this by the end of December.
Mr. Gatti asked are you
telling us that Ms. Marchand went bankrupt?
Mr. Cox responded right.
Mr. Burgeson asked say we take
the foreclosure; how much money is everybody looking for? The tax collectors are still going to require
their taxes, correct?
Mr. Cox stated the foreclosure
would establish that we are all equal.
All of us have these liens, the tax certificate holders, and Allstate,
because we hold the lien really for their benefit and us, as the lien holders
of their standby and uncollected O & M.
We should all get together and figure, we think the fair market value of
the property is this.
We will bid it in at that
price, so that, if nothing else, we end up holding this piece of property to
market collectively, for the benefit of all of us. We can kind of control the prices we are
going to get.
Mr. Burgeson stated so we say
it is over this and no one bids over the C.I.D.
Mr. Cox stated right, the
C.I.D. and all of the people who have equal interest; we would probably end up
forming a land trust or something like that, taking title in the land trust and
then market it.
Mr. Bissell asked who is going
to pay the legal expenses?
Mr. Cox responded right now,
the legal expenses are being paid from the trust estate, which is all of the
monies we have collected for debt service that has been turned over to the
trustee. They continue to pay the legal
fees.
Mr. Bissell stated if they
change that, then the tax certificate holders and the rest would be paying
their share of this.
Mr. Cox stated the tax
certificate holders would be paying their own legal fees. This is just my legal fee.
Mr. Gatti asked were we
talking about $166,000 as our share, or am I misunderstanding?
Mr. Cox responded that is
gone. That is out of the picture.
Mr. Gatti asked how we
established that $166,000, we were at $166,000 and Allstate was at $3,440,000
et cetera, did that not establish the percentages of the division?
Mr. Cox responded $166,000 is
a distorted number because remember we were taking the ERC's back also when we
felt they had some value.
Mr. Gatti stated I will make
an exception and open it up to the audience because of the nature of this
issue. Forgive me, but I hesitate to
take comments from the audience because a lot of what comes in is hearsay, and
I want to avoid that. We have to depend
on our professional staff to give us advice to move on.
Mr. McNally asked I am curious
how you can force a foreclosure on a loan on somebody that you have just
forgiven?
Mr. Cox responded that is
totally different.
Mr. Gatti stated if you have a
question on that, I can let you talk to Mr. Cox after the meeting on that.
Mr. Cox stated in the early
days of the District, everybody was charged a monthly fee to support the
utility because they could not pay the whole bill by themselves. We were having problems collecting that. The only way we could collect it would be to
go to Court, get a judgment, record the judgment and then proceed to foreclose
on the judgment. It is a complicated
process.
The Board has authority to
levy special assessments under Chapters 197 and 174 statutes. That puts it on the tax bill. We went to the ERC to standby. Everybody pays either 1 or .8 ERC's for
standby utilities on the plant. By
putting it on the tax bill, people are more likely to pay their tax bill than
some utility bill that comes and do not anticipate using the utility. A lot of people, we could have gotten the
money when they came to hook up, but it became an easier mechanism for
collecting the monies to maintain the water and sewer facilities until we
started getting enough usage here to do that.
Mr. Gatti stated I do not want
to review the history right now. You can
do this after the meeting. It is unfair
to us to review this, when we have already been through this ten times.
Mr. McNally asked if we
forgive the $28,000, are we sure there are no other unsecured creditors that
would come along and say no, I am not going to forgive after we have given up
the $28,000?
Mr. Gatti responded that is
the question we asked.
Mr. Cox responded as far as I
know all other unsecured creditors are accounted for and will be paid.
Mr. Gatti stated I am
concerned that we give up the $28,000 and somebody else suggests we start from
scratch.
On VOICE VOTE with four voting Aye and Mr.
Robinson voting Nay, the motion to forgive the $28,000 and to proceed was
passed.
Mr. Cox stated regarding the
settlement agreement with Northport, which is now in limbo due to confusion of
where the berm is going to go. If it
goes where it was projected I understand it kills any deal for that
property. It effectively renders that
property undevelopable.
Mr. Gatti stated if they do their homework with Mr.
McMillan, who is with Army Corps. of Engineers, they will find that out, what I
told you before.
Mr. Cox stated the implications with that property being
rendered undevelopable is that we are going to lose an additional part of our
assessment base. I would assume that
berm goes to the whole north side, the North Hotel, Northport and the RV
Park. Everything is shot, so you
essentially have 300 ERC's for utility maintenance that go away. Of course, they had not been paying.
I do not know what the directive is, but there appears to
me that there is going to be an implication for each of the property owners out
here and we are going to lose some portion of our base.
Mr. Gatti stated I suggest that whoever is involved with
that development, because we are concerned, I will set up the meeting with Mr.
McMillan, who is the project manager for the Corps. of Engineers and the
regional project manager and get their assurances that the berm will not be
placed any place that we do not agree to.
Mr. Cox stated we need to kind of walk a thin line. Before this development could get off the
ground, there had to be an agreement between the developer and the Department
of Community Affairs that established what could and could not be
developed. We have constantly referred to
it as the DCA agreement. I believe everybody
on this Board has seen it or read it at some point in time. There is a provision in there that says that
the developer and anybody who succeeds to the developer in title to this
property will not object to any restoration plans that will reduce flow to the
canal.
We have to be careful that we look to the spirit of that
agreement that still protects the interest that we have in the project.
Mr. Gatti stated that is my point. We will let the project manager and regional
project manager tell them what is going to happen. There are no plans or any details on what is
going to happen. The have no idea where
they are going to put this berm. It is
at that stage of development.
Mr. Burgeson asked why is there a drawing out there?
Mr. Gatti stated it is a schematic for public
hearings. Here is the drawing. It does not show anything here. Do you see the dotted line here?
Mr. Cox asked why is it going to be nine feet?
Mr. Gatti responded I asked that same question. I did not want to get into the detail of it
because that night there was a lot of shouting from people who were concerned
about where they were going to swamp buggy.
There were a hundred people here and everyone was arguing against the
project. I was the only one who had some
semblance of purpose.
I did not get into that.
I wanted to ask, nine feet from what?
Our sea walls are at elevation four and the homes are at elevation ten,
but if you put a berm out there at nine, relative to what? That does not tell us.
Mr. Cox responded if it is nine feet into Vidia that is
only four-and-a-half feet, which makes sense to me.
Mr. Gatti stated well, it is six feet here and it is four
or five feet below our slab levels. It
is fifteen or 2,000 feet out. We can
live with that. That is my point.
Mr. Burgeson stated the drawing I saw shows it coming
right down the canal and through the center of this north property.
Mr. Cox stated there is an easement across the center of
the Northport property a hundred feet wide.
Mr. Gatti stated the two areas that are going to be
bermed. If you read the minutes in the
public hearing, they would not do anything without our mutual agreement. That was my only goal at the meeting.
Mr. Cox stated I would be interested in talking with
those folks some time, if they could attend the next meeting. I would like to understand a bit more how
this is going to impact this area.
Mr. Gatti stated the regional project manager will be
glad to attend our next meeting.
Mr. Bissell asked what about Mr. McMillan?
Mr. Gatti responded he is out of Tallahassee or Atlanta,
so we could get him, but it would be more difficulty. I am sure, if I ask Mr. McMillan, he will
refer us to the Regional Project Manager.
We will try to get them here at the next meeting.
B. Engineer
- Co
Mr.
DeCocq stated the co
Mr.
Bissell asked why do we need to roll that over?
Mr.
DeCocq responded I would rather the engineer be here, if you have any questions
concerning the supplemental engineering agreement. If you have no questions and you want to
approve it; that is fine.
Mr.
Bissell asked why can we not just continue with the contract we have with
them? Why does he want to change it?
Mr.
DeCocq responded annually, within the contract, the engineers routinely adjust
their rate, based upon the standards within the industry.
Mr.
Bissell stated we just did that adjustment within the last year.
Mr.
DeCocq stated this is probably based upon the upcoming fiscal year.
Mr.
Bissell asked right, so why can we not wait until September 30th?
Mr.
DeCocq responded you can at this point because it is almost July before you are
going to hear it, so I am sure an extra month will not be a big deal.
Mr.
Gatti asked are you suggesting we propose this?
Mr.
Bissell stated I would move, if it were proper, that we do not accept the
supplemental agreement and we continue with our present contract until the time
comes that they present to us, something different. At that time, if we want to entertain other
firms, we can do so.
Mr.
Gatti asked do we accomplish the same thing by not taking any action on this?
Mr.
DeCocq stated Mr. Bissell is saying he does not want to do this today. We can continue this item until Mr. Benson is
here to discuss it with you. The only
other reason you want to co
Mr.
Bissell stated you are already recommending increasing the budget from $30,000
to $33,000 for engineering.
Mr.
DeCocq stated that is correct.
Mr.
Gatti stated we can get to that point when we get into the budget.
Mr.
DeCocq stated the engineer did have a few items for you. FDEP has extended the deadline for the WWTP
permit for the groundwater monitoring wells until September 14th. This will allow obtaining the easements for
the Marchand property.
The
City of Naples has agreed to do the testing for the WWTP under the new permit
that is required for operation with treated effluent for reuse. Mr. Cox has sent a draft interlocal agreement
to the City. Kyle Construction will
complete the piping connections at the WWTP for the reuse system under the
original contract and will be providing a price to install the new RML pump and
solar powered security light.
He
says, I recall that the C.I.D. Board improved an increase in the allowance
under the contract a few months ago and we expect to stay within the amount, so
no further action should be needed by the Board. Number four; the short form consent order for
the items from many months ago is expected to be sent out 6/24/04 to Mr. Gatti
to be signed. The C.I.D. Board
authorized me to negotiate the settlement many months ago, resulting in $1,500
for civil penalty, plus $250 for administrative fees for a total of
$17,050.
Instead
of paying FDEP for this amount, we are spending at least this amount installing
solar-powered lights, an energy conservation item under the State Pollution
Prevention Program. The cost of the
solar powered security light is estimated at $1,013.83, plus shipping. When adding installation costs for this, that
should cover the $17,050 amount without having to pay the fine.
This
office will fax the bill for the light once they receive the price for
installation to my attention.
Mr.
Bissell stated that was their mistake that we were fined, so we are paying for
their mistake.
Mr.
DeCocq stated I have no facts that this was their mistake. The FDEP has asked us to increase our
security lighting and forgive us any sort of penalty, which is probably
something we should be doing anyway.
Mr.
Bissell stated they failed to make application on time.
Mr.
Gatti asked did you say that the City agrees to do the testing.
Mr.
DeCocq responded that was my understanding.
Mr.
Cox stated I have sent them a draft interlocal agreement.