What should have been a relatively brief, routine special Board of Directors meeting to vote on two documents related to the forthcoming Tirzo’s Bistro at Trumpets was anything but routine on August 14, when comments and objections by a familiar group of residents, supported in part by one Board member, dragged out the meeting for close to two hours.
With Directors Ann Small and John Waterhouse absent, the remaining five Board members voted unanimously to approve a necessary license agreement that will allow TNF Holdings Inc. –the legal name of the entity that will operate the restaurant- to use an Association asset, called the $30,000 Asset/Origination Fee, which is associated with the Trumpets space. The transfer of this asset, with right of return to SCA if and when the tenant should vacate the premises, is necessary for the lawful operation and serving of alcohol in the Trumpets space.
It should be noted that while the license agreement carries a dollar value of $30,000, no payment of this amount to the city of Henderson has ever been required, due in part to the fact that the Association was “grandfathered” so as not to require payment of the fee when the law changed several years ago.
When the official agenda for the Aug. 14 meeting was published, this item was identified on the agenda as a “License Agreement for the Trumpets Tenant to Use Sun City Anthem’s Conditional Use Permit” for the restaurant, but the wording was changed to reflect the correct description of the document.
During Member Comment Period at the beginning of the meeting, resident Kay Frank described the change in wording on the agenda as “material,” and she stated that this made the pending vote on the license agreement illegal because it had not been properly noticed. Board President Roz Berman replied that the change was simply a procedural correction and was not material due to the fact that the vote to be taken would accomplish the Board’s intent as stated on the agenda.
The second item was a vote on an “Agreement to Poll Residents about Allowing Gaming in Trumpets.” This item generated a number of critical comments from residents who were allowed to discuss the issue independent of the earlier Member Comment Period. Resident Bob Frank said he believed that the signing of the polling agreement would prejudice members of future Boards of Directors. Other comments implied, incorrectly, that the polling agreement was a modification of the actual lease which had been executed weeks earlier.
Board Vice President Jack Troia and Association attorney Ed Song stressed several times during the meeting that the polling agreement was necessary to protect SCA because while the lease says the tenant has the right to ask the landlord for gaming in Trumpets, permission for which “will not be unreasonably withheld,” the polling agreement defines the process that the tenant will have to follow in order for the Board to ultimately consider such a request. Without this additional agreement, which is not a modification or amendment of the lease, the tenant might be in a position to argue that permission was withheld unreasonably if it ever went to court to force gambling into Trumpets.
Treasurer Cheri and Attorney Song, in particular, noted that a significant percentage of residents who had contacted them to express their views were in favor of a process that, while establishing challenging hurdles for the tenant to overcome, would still allow for a fair expression of resident sentiment.
Based on my notes, the polling agreement, which must be signed by landlord and tenant, will include the following provisions, among others:
No earlier than June 10, 2010, the tenant will have the right to commission a written poll in the form of a ballot/questionnaire to be sent to all SCA members.
The contents/wording of the ballot must be approved in advance by the Board.
All costs of the balloting/polling will be borne by the tenant.
In the event that a majority of households respond affirmatively on the subject of gaming in Trumpets, which means a total of at least 3,573 households, the Association agrees to enter into discussions with the tenant to revise the lease terms to allow gaming.
If less than a majority of all members return the ballot but at least 35 percent of members do participate, the Association reserves the right, IN ITS SOLE DISCRETION, to initiate these discussion with the tenant IF a majority of those 35 percent or more vote in favor of gaming.
Reporter’s Note: The last paragraph would be consistent with the new statute change that allows for recall of Board members if at least 35 percent of members cast votes in a recall election and a majority of those 35 percent or more vote for the recall.
After the lengthy discussion of this second proposed agenda action, the Board voted 4-1 in favor of executing the polling agreement, with Director Carl Weinstein voting against.
Reporter’s Note: Due to frequent verbal abuse directed at me and Roz by Carl Weinstein, he is currently blocked from posting to the blog. In the spirit of fairness, however, I invited him, if he wished, to provide me with a statement discussing his vote against the polling agreement. He accepted my invitation, so in keeping with my promise, I conclude this report with Mr. Weinstein’s statement, below, without editing or editorializing by me. Please note that Mr. Weinstein describes the polling agreement as an addendum to the lease, but in an exchange of e-mails he indicated that this might not have been the best term to use.
Carl Weinstein’s statement:
David has kindly asked me to explain my no vote at the Special Board Meeting when the subject of possibly allowing the Trumpets tenant to request a poll regarding gaming.
You may recall that I voted "no" for the final lease at an earlier Board meeting. My reason for doing so was the term "unreasonably withheld" as pertaining to whether a request from the tenant for gaming would be honored. Despite the legal advice which stated that that term was ok, many residents were upset of the "possible" legal ramifications of those words. As a result, it was agreed that an addendum to the lease between SCA and the lessee would clear that issue up. When the addendum was presented, up popped the words "unreasonably withheld", this time pertaining to a request by the lessee to poll the residents about gaming.
I did not see that as an improvement. I believe my fiduciary responsibility to the residents forced me to vote in a manner that would not continue what I believe to be a possible legal liability.
In addition, I don't think that this Board should pass something with possible legal consequences that force a future board to do something they might not otherwise consider. My other problem was that is was obvious from the meeting that some real changes needed to be made in the document. It is my position that the Board should have had a workshop, open to residents, to discuss the wording and the pros and cons of the document.
As you may recall I have suggested a "polling" understanding as a way to strengthen the lease wording on gambling. But any such vote would always require a 50% Plus approval before the board advanced the issue.
Based on your understanding, David, it appears that gambling could be advanced with only 17.5% of the homeowners voting positively. If I am right this is very wrong!
You first stated that a majority of the homeowners (3573) is required. That means that we have 7146 total homeowners. You then said " If less than a majority of all members return the ballot but at least 35 percent of members do participate, the Association reserves the right, IN ITS SOLE DISCRETION, to initiate these discussion with the tenant IF a majority of those 35 percent or more vote in favor of gaming".
So, 35% of 7146 is 2501 and 50% of 2501 is 1250. 1250 is just 17.5% of our homwowners - it makes no sense to allow gambling to be advanced with just a 17.5% approval.
Now, who came up with this fuzzy math - our board, Tirzo group, or our lawyer?
Posted by: Ken Kuhner | August 15, 2009 at 11:07 PM
You are correct in your calculations, Ken, except that we have 7,144 homes.
When discussion took place at a prior meeting, it had been suggested that a failure to vote would be taken to be a "no" vote, which I think would be as unfair as taking a failure to vote to be a "yes" vote.
So....I'm surmising that the thinking --just my own opinion-- is that if people are not willing to take the time to vote, then only the votes of those who do take the time should be considered.
Yes, it would be 17.5 percent of ALL households in SCA, but it would still have to be 50 percent plus one of all voting households as long as at least 35 percent vote.
That's really no different from how our own Board elections are conducted. We never get 50 percent of our households to vote in a Board election, and we have some Board members elected with the votes of fewer than 17 percent of our households, which would be 1,215. I think many believe that if you don't care to vote at all, then your household should not be counted in any totals, but instead we should count only those that bother to vote.
Keep in mind how difficult it is to reach a threshhold which is too high. We have absentee owners who don't really care, bank-owned homes, etc., and right away that diminishes the numbers.
Like many in the community, my personal opninion is that I don't care whether we have gambling or not. I have doubts that the tenant will need those few gaming machines if he is doing a good job with the restaurant, with his liquor sales, and with his catering. The more he makes, the more SCA makes.
But if gambling ever came in, I seriously doubt that my lifestlye and certainly my enjoyment of Trumpets cuisine would be affected by the presence of some gaming machines embedded into the bartop as I walk into the restaurant.
I have a feeling that this whole thing will blow over. But suppose our community loves the restaurant and the catering so much that we don't want the operator to go out of business. Wouldn't it be reasonable to afford him at least the opportunity to try to make his case?
Posted by: David Berman | August 15, 2009 at 11:27 PM
My concerns regarding the polling agreement are:
1. Will there be advance notice to residents of a tenant's decision to conduct a polling of residents and if such advance notice is required, what advance notice period before polling is conducted is required?
2. What communtity discussion would be required in advance of the tenant's polling of residents?
3. What discussion, if any, of pros and cons by concerned SCA residents would accompany such polling?
4. If the polling is not conducted by SCA then what assurance do residents have that the polling would be conducted properly and accurately?
Furthermore, what control does the SCA have over the tenant's conduct of gaming. I would be averse to anything that disrupts the residents' quiet enjoyment of this wonderful community ammenity. For example, as a customer of the bar or restuarant I would not enjoy any sounds coming from the audio system of a slot machine.
Posted by: Brian Ehlers | August 16, 2009 at 06:44 AM
First I would be happy to count the votes.HAHA. However I think everyone should be concerned that the center will be opened 24 hours a day which will require security 24 hours a day to prevent people that are not members from wondering around the center. I know I am no longer a member however I think Sun City is the best place to live and someday i hope to return and do not want to see it change for the worse.
Posted by: Joseph Barbato | August 16, 2009 at 08:47 AM
Brian:
Of course there would be "advance notice" of a poll, because the agreement would require Board involvement in the process, with discussion and votes at a public meeting.
What "community discussion" would you be suggesting, in view of the facts that the agreement will spell out the steps to be followed?
I'm sure the pros and cons would receive quite a thorough airing in the community.
The assurance of a proper and accurate polling process would be provided by (1) the requirement that the Board must approve the wording of the "ballot," and, based on a discussion at the recent meeting, it looks like the counting would be done by an independent firm.
If they ever put gaming in, I think it would be limited to a few quiet video pokers embedded into the bar. In my opinion, that's the full extent of it.
Posted by: David Berman | August 16, 2009 at 10:44 AM
Joe: As you are a skilled supervisor of vote counting, maybe they SHOULD hire you for that purpose -grin!!
I don't think gaming here would be a 24-hour proposition. Operators who have the entry-level gaming license for 15 machines or fewer do not have to stay open around the clock. Two examples: The Willows Restaurant at MacDonald Ranch, which has video poker, is not a 24/7 operation. And Albertsons, one of our supermarkets which has video poker, now closes, I believe, at 1 a.m.
Posted by: David Berman | August 16, 2009 at 10:47 AM
It is interesting to see that The Unity Team we all heard so much about during the board elections is certainly not unified. Now that the election is over everything changes. We can only hope residents will make different choices in the next election.
Posted by: Paul V. Christensen | August 16, 2009 at 11:01 AM
David, as you certainly know "Health Care" is currently dividing the country. And, I will guess that "Gambling" will now divide SCA at least for the coming year.
Is it true that Roz acknowledged at the 8/14 meeting that "Gambling" was a deal breaker? And, if so, why has this been "hidden" from SCA owners until now?
Again, if it is true, then based on the prior vote of SCA against gambling - we shold have just passed on the Tirzo group.
Like you, I willingly accept the vote of the majority. If SCA votes to have gambling then lets move on.
What I object to is a voting system that could allow just 17.5% to rule the day. Also, I politely disagree with your contention that it would be wrong to count missing votes as a vote against. The onus should be on those in favor to garner a 50% majority. In government it usually takes "x%" to pass something. Failure to reach that number is a "no" vote.
Incidentally, if gambling is a deal breaker, and if SCA again votes against it, then Tirzo is wasting his time - and our money - to open at all....
Thanks for providing a site where owners can debate openly. Knowledge is power - please continue to keep us informed.
Posted by: Ken Kuhner | August 16, 2009 at 11:42 AM
Ken Kuhner's comments are an example of how my readers are free to express their opinions, whether they agree with me or not, as long as they are civil. Such diverse comments are always welcome.
Unfortunately, I have had to delete the latest comment from Forrest Fetherolf and have blocked him, for the time being, from posting to this blog. Mr. Fetherolf's comments were borderline defamatory, if not actual defamation, in several respects. It is clear to me that Mr. Fetherolf has been gradually pushing the envelope with undocumented accusations that have escalated in their severity, perhaps as a means of testing me. Until now, I have not questioned his freedom to express his opinions in strong terms, but at some point I need to protect myself with regard to allowing the publishing of defamatory material, and it is more prudent to block him for now instead of trying to nit-pick so many of his allegations with never-ending debates.
Mr. Fetherolf has at least three other blogs available to him where his accusations will undoubtedly be welcome, so he is not being denied the opportunity for outlets to express his opinions.
The fact that Mr. Fetherolf has a personal agenda is evidenced by his frequent practice of using the several blogs to post substantially the same comments that he posts here.
The bottom line that my readers have to remember is this: A blog, by definition, is a personal web log that generally reflects the outlook and opinions of its owner. The owner has the right to set the tone and control how the blog operates. This is called freedom of expression. I have taken the approach that my blog will be journalistically sound, focusing on the dissemination of information, along with my own opinions, and offering readers the opportunity to share in the discussions. I believe the major reason for my blog's comparative popularity -at least according to what many of my readers tell me- is that my competitors are focused less on sharing real news and information, and more on personal attacks and the spreading of falsities and half-truths. You may disagree with me on this perception, but, as I have stated here, it is my right as the owner to state that perception.
Posted by: David Berman | August 16, 2009 at 12:24 PM
Seriously Mr. Berman, do you think Pepys would have kept a blog if he were alive today?
Kudos on your stated-intentions regarding your growing body of work. It is very easy for the audience to overlook our motivations for writing these things in the first place!
Posted by: DJ sevvo | August 16, 2009 at 11:38 PM
David:
In your editorial above, on two occasions you stated that the Polling Agreement (now changed to Memorandum of Understanding [MOU])was not a modification to the original lease agreement. The MOU reads:
"WHEREAS, the parties previously entered into a Lease Agreement ("Trumpets Lease") for leasing the Trumpets Restaurant space; and
WHEREAS, the parties agree to enter into a new agreement that may require certain modifications to the terms and conditions of the Lease Agreement; and
NOW THEREFORE, in consideration of the promises and mutual covenants herein the Parties agree to the following:"
Sounds like a modification to me.
Posted by: Nelson Orth | August 17, 2009 at 02:45 PM
Nelson, you are misinterpreting what you have accurately quoted.
The "Polling Agreement and Memorandum of Understanding," which is what I think they said the new title will be, does not modify the lease in any way. The lease stands on its own, unchanged.
What the language you quote is doing is acknowledging that the lease exists and also suggesting that at some point in the future, the lease might have to be modified if a decision is made, as the result of a poll and an Association decision, to allow gaming. That does not make it a modification of the lease, but as was explained at last week's meeting, it sets out the process that would be followed if the tenant does ask for a poll to consider gaming, which the tenant IS allowed to ask for under the lease terms.
If you don't understand that, I believe a lawyer could explain it to you. This is not verbal gymnastics, nor is it an overly clever use of words. It is a necessary document, NOT modifying the lease, to give SCA the assurances that any future poll/ballot or whatever you want to call it is conducted under certain guidelines that the parties will adhere to.
The bottom line, once again: This document is not a modification in any way. If you continue to believe that it is, then I don't think there would be any way to get you to understand it.
It is also important to note that the four Board members who voted in favor relied on the advice of their paid professional.
Posted by: David Berman | August 17, 2009 at 03:58 PM
I am a retired editor (Sudbury Citizen, Mass. pop. 20,00) and elected school committee member, both of which positions had one in the line of fire from editorials and school comm. decisions from both sides. Have to say in retrospect it was a piece of cake from what I see my SCA board members dealing with - God Bless them all for being willing to serve.
MJH
Posted by: mary jane hillery | August 20, 2009 at 03:15 PM