Factoids

Friday, September 7, 2012

Pants on fire!

The denouement of this little ‘gotcha’ has taken about a year to unravel. It is a real whopper!

On March 21, 2011, StopCTA gave a presentation on the proposed Central Texas Airport to the Bastrop Economic Development Corporation (BEDC). At that time the BEDC was in transition. Joe Newman, the current Director of the Elgin Economic Development Corporation (EEDC) had just left the same position at the BEDC where he had served for over a decade.

Months later on October 11, 2011, StopCTA was one of three concerned citizens to provide comments at an EEDC meeting.

Earlier that year, Mr. Newman had stated that the BEDC did not have an ‘official’ position regarding the airport. The same position was offered in regards to the EEDC. We were also told in October that EEDC had not heard anything from Mr. Carpenter .

After the EEDC presentation, StopCTA submitted an Open Records Request (ORR) to the City of Elgin on October 18, 2011 for documents concerning the proposed Central Texas Airport. The results of that research were posted on December 05, 2011 in What’s up with Elgin. It all seemed so ho-hum.

Then in mid-August 2012, nearly a year later, StopCTA received documents from another source that contained correspondence to the City of Elgin that was responsive to the October 18, 2011 ORR but not provided. StopCTA immediately sent another ORR with the following contained in the cover letter:

I previously submitted an ORR to you on October 18, 2011 which was posted by Sheets & Crossfield on October 31, 2011. I now have in my possession documents obtained from another source that were sent to the City of Elgin before October 18, 2011 and were responsive to my request but not provided to me. So I have revised my current ORR to give City of Elgin an opportunity to include responsive documents that you may have previously overlooked.

The next business day, Sheets & Crossfield (the City of Elgin attorneys) called for clarification of the ORR request because they were told there was nothing other than what was previously provided. The sequence of events was explained. A few days later there was yet another call to discuss documents that had now miraculously been located. The explanation? The documents must have been ‘misfiled’. Just how does one ‘misfile’ an email? Even after all this, there is no way to know whether we have now been given all the relevant documents. Oh, well . . . so much for transparency in government.

The ‘lost’ documents responsive to the second ORR indicate, in their own words, that the City of Elgin and Mr. Newman had been less than forthcoming in response to our queries about Elgin’s involvement with the proposed Central Texas Airport. Details of those documents will be posted separately.

This just keeps getting better and better!

Saturday, July 14, 2012

Farce Majeure

A few days ago, an attempt to get answers to the questions raised in a previous post - Magic hammer - was submitted to selected county officials. A response came from Ronnie Moore, Director of Planning and Project Management:

StopCTA: I am aware of the current discussion regarding the developer’s default of the 381 Agreement and Force Majeure.

I would like an answer to this question, please.

According to Section 9 (b) (i) (B), the Completion phase of the Airport is subject to Force Majeure.

However, according to Section 9 (b) (i) (A), the Commencement phase of the Airport makes no mention of it being subject to Force Majeure.

So why is Force Majeure even under discussion?

Thank you for clarifying.

Ronnie Moore: Read the Force Majeure clause, Force Majeure is applicable to the entire agreement.

Okay but . . .

StopCTA: If that were the case, why bother to set those specific parameters in Section 9? Couldn’t it be argued that the Section 9 language supersedes the general Force Majeure definition in Section 15 (o)?

Ronnie Moore: Read the Force Majeure clause, Force Majeure is applicable to the entire agreement.

It’s looking like this is going to be a dead end. But just to be sure . . .

StopCTA: OK. So I’ll rephrase . . .

Why specify conditions in one Section only to nullify them later in the document? Where’s the logic in that!?

Silence.

End of the line. Questions still unanswered. This has been pretty much how the public debate with the County has gone from day one . . .

Wednesday, July 11, 2012

The good of the one

Star Trek buffs are familiar with the Vulcan edict that “good of the many outweighs the good of the one”. That principle is valid not only on Vulcan but as a cornerstone of any civil society . . . in theory. But this is corporate America where the “good of the one outweighs the good of the many” anytime there is a chance that money can be made.

This map of the proposed Central Texas Airport’s flight patterns accompanied Cyndi Wright’s June 6 article “Developer misses deadline” in the print edition of the Bastrop Advertiser. It brings home just how many people are going to be impacted by the CTA should it ever be built. How could the county have even considered this? Oh yes . . . the illusory pot of gold at the end of the runway.

Gaze long and hard at it folks . . . through your tears.

CTA flight patterns

Monday, July 9, 2012

Groundhog day

If you’ve ever had a sinking feeling that the proposed Central Texas Airport is traveling on a Mobius strip in another dimension read on.

In the spring of 2010, negotiations for the 381 Agreement were intensifying. On March 23, Tom Pollan, the County’s attorney at Bickerstaff, Heath, Delgado, Acosta LLP presented nine Non-negotiable Terms to the CTA team. Discussion of these Terms continued for weeks. In an April 08, 2010 letter to Jerry Kyle at Andrews Kurth LLP discussing the Non-negotiable Terms, Tom Pollan stated:

While we appreciate CTA’s acceptance that any modification of the territory included within the Property described in Exhibit “A” to the 381 Agreement will only be effected upon consent by the County, the County still has not seen a description of the property. The County will want to have this description and evidence the CTA has all of the requisite property under contract or option before it continues with negotiations to ensure that the airport can be built if the County is to enter into the 381 Agreement.

Jim Carpenter himself emailed a response to former Judge Ronnie McDonald and Commissioner Lee Dildy on May 05, 2010 confirming that the McFarland tracts were under contract. Marie Love at Gracy Title provided the requested document.

Please note that this contract dates back to 2007 when the first application to the FAA was made for the Colorado Riverland Ranch airport.

Now fast forward to 2012 and the negotiations currently taking place regarding Force Majeure. In a June 18, 2012 letter to Patrick Lindner, the County’s attorney Tom Pollan requests:

In addition please provide documentation to confirm the CTA currently owns the Property described in Exhibit A of the Agreement or has in effect an option or other agreement to purchase it.

In an attachment to Patrick Lindner’s response to Tom Pollan, Marie Love of Gracy Title (who is now a Senior Commercial Escrow Officer) comes to the rescue again with a nearly identical document.

Two years later and it’s back to square one. Hold on to your wallets. Here we go again . . .

Saturday, July 7, 2012

Magic hammer?

When rereading the 381 Agreement a possibly important detail that could stop the proposed Central Texas Airport in its tracks popped out in Section 9 which deals with Company Performance. Please read the following VERY carefully:

(i) Construction of Airport Improvements.

(A) Commencement. Company agrees to use Commercially Reasonable Efforts to cause construction of Phase One of the Airport Improvements and the portions of Phase One of the Infrastructure Improvements required to use and operate Phase One of the Airport Improvements to Commence no later than June 30, 2012.
(B) Completion. Company agrees to use Commercially Reasonable Efforts to cause construction of Phase One of the Airport Improvements and the portions of Phase One of the Infrastructure Improvements required to use and operate Phase One of the Airport Improvements to be Completed no later than June 30, 2012, subject to Force Majeure.

(ii) Construction of Commercial Improvements.

(A) Commencement. Company agrees to use Commercially Reasonable Efforts to cause construction of Phase One of the Commercial Improvements and the portions of Phase One of the Infrastructure Improvements required to use and operate Phase One of the Commercial Improvements to Commence no later than June 30, 2012.
(B) Completion. Company agrees to use Commercially Reasonable Efforts to cause construction of Phase One of the Commercial Improvements and the portions of Phase One of the Infrastructure Improvements required to use and operate Phase One of the Commercial Improvements to be Completed no later than June 30, 2012, subject to Force Majeure.

Did you notice that only the Completion Phase of the project, not the Commencement Phase is subject to Force Majeure? This observation was passed on to members of the Commissioners’ Court some time ago. So why are they even allowing a discussion of Force Majeure to continue? If that interpretation is a misread, then would a legal eagle please explain why? If indeed this is a magic hammer, why hasn’t it been used to deliver the coup de grace to the CTA?

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