Los Osos, Who's Your Quarter Million Dollar Daddy?
County's rationale for not cashing 2005 bond to pay for Tri-W site restoration: No bueno
[Note: I was going to hold off publishing this story until next week, in order to meet an "at least weekly" quota, but, considering its importance, and the fact that there's a Los Osos wasterwater project update scheduled at the Board of Supervisor's meeting on Tuesday, I'm just going to go ahead and publish it now.
However, I don't feel like re-setting everything. So, what's below is my response, today, to SLO County Counsel, Warren Jensen's response, also today, to my question at this link:
http://sewerwatch.blogspot.com/2010/07/using-existing-bond-to-restore-tri-w.html
In a nutshell, what this shows is that the county's rationale for not using a 2005 bond to pay for the restoration of the mid-town Tri-W site, is faulty. And, because the site's restoration is a "condition of approval" for the county's recently obtained coastal development permit for their Los Osos sewer project, if they were to cash in the bond today, it would save the county (and Los Osos rate payers) hundreds of thousands of dollars (at least) on the site's (mandated) restoration cost.]
TO: Warren Jensen, County Counsel, San Luis Obispo County
DATE: 7/23/10
Hello Warren,
Thank you very much for your response (reprinted below).
After reading it, I think you are going to find this response very interesting (and uplifting), because I think I may have found a way to restore the Tri-W site (and, therefore, meet a condition of approval for the county's LO sewer project development permit) at no cost to the county... including "attorney's fees."
In your response, you wrote:
"The specific obligation of the LOCSD, which is the obligation covered by the bond, is found in par. 4 of the agreement, which provides as follows:
4. Applicant shall complete all necessary site restoration required in order to eliminate hazardous conditions . . . within sixty (60) days of cessation of work at any of the three sites."
That may be the "specific obligation of the LOCSD," however, like I wrote to Paavo Ogren (and cc'd you) on 7/14/10, the bond also says, the CSD had "60 days" to do the restoration after "cessation of work," HOWEVER, "if the restoration work is not satisfactorily completed within the time set in paragraph 4, the county may elect to complete the same."
So, according to the bond, apparently, the county could have, and very, very importantly, still can "elect to complete the same."
It sure sounds like it WAS the "specific obligation of the LOCSD," for sixty days after they ripped up the Tri-W site, but after that, it also sure sounds like it's been in the county's court ever since, and the county simply hasn't "elected to do the same," for reasons I'm still not clear on.
For example, you wrote, "It is our understanding that work ceased in about September 2005 and that there were no "hazardous conditions" on the site within 60 days of cessation of work."
If that's your understanding, then, to be frank, the county is not understanding this situation accurately.
The 5-year-old time frame at work here is both quick, very specific, and extremely important.
You are correct when you say, "work ceased in about September 2005," however, to be much more specific, it ceased immediately following the successful recall election on September 27, 2005.
The date on the Surety Bond is September 15, 2005.
I recently asked former Los Osos CSD Director, Julie Tacker, "How soon did the District start the grading at the Tri-W site after the county secured that bond?"
She told me that the District began "mass excavation" the "very next day," September 16.
[And, here, I can only imagine, is where Julie Rodewald's stomach must turn like mine every time I get to this point in the story, now that I've nailed down that "mass excavation" date. After all, she, as the county's top election official, just recently informed me that, had it been her decision to set that 2005 recall election date, instead of the three board directors (board majority) that were being targeted for recall (that ultimately, on a 3-2 vote, set it at one of the latest possible dates, September 27), she would have set the election date on "September 13"... three days before the "mass excavation" at the "environmentally sensitive" Tri-W site would have even had a chance to begin... ouch... and, yes, bleh.]
So, anyway, back to my "uplifting" point...
The "mass excavation" started on September 16th.
You wrote, "(2) the hazardous condition must materialize as such within 60 days of cessation of work."
and;
"Therefore, the bond does not provide coverage because the bond only guarantees performance of the underlying agreement, which has a time-limited requirement."
Considering the tight time-line that I just laid out, your take there just simply doesn't fly... UNLESS it's the county's position that the Tri-W site, today, still isn't "erosive" or "hazardous," because, like I just showed, the condition of the Tri-W site today, is almost exactly like it was immediately following the recall election, after nearly two weeks of "mass excavation" before the "cessation of work" -- excavation that left a gigantic dirt pit in the middle of Los Osos for five years and counting.
The only thing that's changed at the site since the "mass excavation" that started on September 16, 2005, is the five years of "erosion" that's occurred at the once-"environmentally sensitive" site... considered so "hazardous" due to the "mass excavation," that a chain link fence must now permanently encircle the deep, dirt pit that was created as a result of the "mass excavation" that "materialized" nearly two weeks BEFORE the "cessation of work."
Now, that I've straightened out the time-line involved with the Surety Bond, for the county, and showed how the "mass excavation" -- that rendered the site "erosive," and hazardous" -- "materialized," well within the "60 day cessation of work" window, will the county now be using that bond to pay for the Tri-W site restoration -- a restoration that is a "condition of approval" for your recently obtain coastal development permit?
Or, no?
Thanks again,
Ron
P.S. According to the agreement, "As part of the obligation... there shall be included costs... including reasonable attorney's fees, incurred by County in successfully enforcing such obligation..."
When I say, "at no cost to the county," I mean, "at no cost to the county."
P.P.S. I hope to be publishing this story early next week, so if I could get a follow-up answer to my latest question, by Monday, I would very much appreciate it. Thanks!
- - -
And, here's Jensen's 7/23/10 (today) e-mail to me:
- - -
Mr. Crawford:
The site restoration bond and underlying agreement that it applies to are attached below.
The specific obligation of the LOCSD, which is the obligation covered by the bond, is found in par. 4 of the agreement, which provides as follows:
4. Applicant shall complete all necessary site restoration required in order to eliminate hazardous conditions . . . within sixty (60) days of cessation of work at any of the three sites.
There appear to be two conditions that are necessary under the agreement to trigger an LOCSD condition to perform site restoration, and corresponding obligations under the bond: (1) there must be a "hazardous condition" that needs corrective action, and (2) the hazardous condition must materialize as such within 60 days of cessation of work. It is our understanding that work ceased in about September 2005 and that there were no "hazardous conditions" on the site within 60 days of cessation of work. Therefore, the bond does not provide coverage because the bond only guarantees performance of the underlying agreement, which has a time-limited requirement. The subsequent degradation of the site is simply not covered by the agreement or the bond because of the wording of the agreement, which in turn defines the scope of the bond.
Warren R. Jensen | County Counsel | San Luis Obispo County
###
However, I don't feel like re-setting everything. So, what's below is my response, today, to SLO County Counsel, Warren Jensen's response, also today, to my question at this link:
http://sewerwatch.blogspot.com/2010/07/using-existing-bond-to-restore-tri-w.html
In a nutshell, what this shows is that the county's rationale for not using a 2005 bond to pay for the restoration of the mid-town Tri-W site, is faulty. And, because the site's restoration is a "condition of approval" for the county's recently obtained coastal development permit for their Los Osos sewer project, if they were to cash in the bond today, it would save the county (and Los Osos rate payers) hundreds of thousands of dollars (at least) on the site's (mandated) restoration cost.]
TO: Warren Jensen, County Counsel, San Luis Obispo County
DATE: 7/23/10
Hello Warren,
Thank you very much for your response (reprinted below).
After reading it, I think you are going to find this response very interesting (and uplifting), because I think I may have found a way to restore the Tri-W site (and, therefore, meet a condition of approval for the county's LO sewer project development permit) at no cost to the county... including "attorney's fees."
In your response, you wrote:
"The specific obligation of the LOCSD, which is the obligation covered by the bond, is found in par. 4 of the agreement, which provides as follows:
4. Applicant shall complete all necessary site restoration required in order to eliminate hazardous conditions . . . within sixty (60) days of cessation of work at any of the three sites."
That may be the "specific obligation of the LOCSD," however, like I wrote to Paavo Ogren (and cc'd you) on 7/14/10, the bond also says, the CSD had "60 days" to do the restoration after "cessation of work," HOWEVER, "if the restoration work is not satisfactorily completed within the time set in paragraph 4, the county may elect to complete the same."
So, according to the bond, apparently, the county could have, and very, very importantly, still can "elect to complete the same."
It sure sounds like it WAS the "specific obligation of the LOCSD," for sixty days after they ripped up the Tri-W site, but after that, it also sure sounds like it's been in the county's court ever since, and the county simply hasn't "elected to do the same," for reasons I'm still not clear on.
For example, you wrote, "It is our understanding that work ceased in about September 2005 and that there were no "hazardous conditions" on the site within 60 days of cessation of work."
If that's your understanding, then, to be frank, the county is not understanding this situation accurately.
The 5-year-old time frame at work here is both quick, very specific, and extremely important.
You are correct when you say, "work ceased in about September 2005," however, to be much more specific, it ceased immediately following the successful recall election on September 27, 2005.
The date on the Surety Bond is September 15, 2005.
I recently asked former Los Osos CSD Director, Julie Tacker, "How soon did the District start the grading at the Tri-W site after the county secured that bond?"
She told me that the District began "mass excavation" the "very next day," September 16.
[And, here, I can only imagine, is where Julie Rodewald's stomach must turn like mine every time I get to this point in the story, now that I've nailed down that "mass excavation" date. After all, she, as the county's top election official, just recently informed me that, had it been her decision to set that 2005 recall election date, instead of the three board directors (board majority) that were being targeted for recall (that ultimately, on a 3-2 vote, set it at one of the latest possible dates, September 27), she would have set the election date on "September 13"... three days before the "mass excavation" at the "environmentally sensitive" Tri-W site would have even had a chance to begin... ouch... and, yes, bleh.]
So, anyway, back to my "uplifting" point...
The "mass excavation" started on September 16th.
You wrote, "(2) the hazardous condition must materialize as such within 60 days of cessation of work."
and;
"Therefore, the bond does not provide coverage because the bond only guarantees performance of the underlying agreement, which has a time-limited requirement."
Considering the tight time-line that I just laid out, your take there just simply doesn't fly... UNLESS it's the county's position that the Tri-W site, today, still isn't "erosive" or "hazardous," because, like I just showed, the condition of the Tri-W site today, is almost exactly like it was immediately following the recall election, after nearly two weeks of "mass excavation" before the "cessation of work" -- excavation that left a gigantic dirt pit in the middle of Los Osos for five years and counting.
The only thing that's changed at the site since the "mass excavation" that started on September 16, 2005, is the five years of "erosion" that's occurred at the once-"environmentally sensitive" site... considered so "hazardous" due to the "mass excavation," that a chain link fence must now permanently encircle the deep, dirt pit that was created as a result of the "mass excavation" that "materialized" nearly two weeks BEFORE the "cessation of work."
Now, that I've straightened out the time-line involved with the Surety Bond, for the county, and showed how the "mass excavation" -- that rendered the site "erosive," and hazardous" -- "materialized," well within the "60 day cessation of work" window, will the county now be using that bond to pay for the Tri-W site restoration -- a restoration that is a "condition of approval" for your recently obtain coastal development permit?
Or, no?
Thanks again,
Ron
P.S. According to the agreement, "As part of the obligation... there shall be included costs... including reasonable attorney's fees, incurred by County in successfully enforcing such obligation..."
When I say, "at no cost to the county," I mean, "at no cost to the county."
P.P.S. I hope to be publishing this story early next week, so if I could get a follow-up answer to my latest question, by Monday, I would very much appreciate it. Thanks!
- - -
And, here's Jensen's 7/23/10 (today) e-mail to me:
- - -
Mr. Crawford:
The site restoration bond and underlying agreement that it applies to are attached below.
The specific obligation of the LOCSD, which is the obligation covered by the bond, is found in par. 4 of the agreement, which provides as follows:
4. Applicant shall complete all necessary site restoration required in order to eliminate hazardous conditions . . . within sixty (60) days of cessation of work at any of the three sites.
There appear to be two conditions that are necessary under the agreement to trigger an LOCSD condition to perform site restoration, and corresponding obligations under the bond: (1) there must be a "hazardous condition" that needs corrective action, and (2) the hazardous condition must materialize as such within 60 days of cessation of work. It is our understanding that work ceased in about September 2005 and that there were no "hazardous conditions" on the site within 60 days of cessation of work. Therefore, the bond does not provide coverage because the bond only guarantees performance of the underlying agreement, which has a time-limited requirement. The subsequent degradation of the site is simply not covered by the agreement or the bond because of the wording of the agreement, which in turn defines the scope of the bond.
Warren R. Jensen | County Counsel | San Luis Obispo County
###
posted by Ron at
3:17 PM
6 Comments:
ron, was even ONE complaint filed with ANY agency as to a hazardous condition at the site before the 60 days was up? You know - a formal complaint, perhaps an accident even, not just silly rumblings on a blog. It doesn't matter about what is going on today. The 60 days is long past.
Was there EVER ANY restoration done by the CSD so that there was an opportunity to say that it wasn't satisfactorily completed? Why should the County step in if the CSD didn't fulfill the condition allowing them to do so?
Do you think that the bond company and the County is going to say - "Hmmmm -- no complaints -- But sure, we'll pay to fix it up 5 years later even thought the 60 days has long expired!"
Jeez…
By
Sewertoons AKA Lynette Tornatzky, at 4:55 PM, July 23, 2010
'tooncie wrote:
"The 60 days is long past."
Yeah, it sure it is... for the LOCSD to do the restoration.
But, as I was the first (of course) to point out:
"... if the restoration work is not satisfactorily completed (by the LOCSD) within the time set in paragraph 4 (60 days), the county may elect to complete the same."
And, since there's no deadline in the bond... they can STILL, today, "elect to complete the same."
"Why should the County step in if the CSD didn't fulfill the condition allowing them to do so?"
Really? You can't think of the answer to that question? (Talk about "Jeez.")
How's this: So there will no longer be a "hazardous," "erosive" gigantic dirt pit in the middle of Los Osos -- deemed so "hazardous" that a chain link fence must now permanently encircle the gigantic, deep, dirt pit.
"Do you think that the bond company and the County is going to say - "Hmmmm -- no complaints -- But sure, we'll pay to fix it up 5 years later even thought the 60 days has long expired!""
Uh, yeah, pretty much.
And, if you could read, you would have noticed that it won't cost the County, or the Bond Company a penny.
All of the collateral set aside for that bond was signed by the CEO of Monterey Mechanical... you know, Bruce Gibson's Parks Commissioner's friends.
Pandora's friends at MM will have to pay for it.
You seem to have a problem with that, 'tooncie. That's kinda weird. You DO realize that restoring the Tri-W site is a "condition of approval" for the latest development permit, right?
Don't you want to get that COA paid for, without a penny coming out of your wallet?
So, you should show up at the Supervisor's meeting on Tuesday, and demand that they cash that bond in... that the County so brilliantly required in the first place.
You're welcome (again).
By the way, how 'bout that part where I show how Rodewald recently told me she would have set the election on September 13, and then I showed how the "mass excavation" at the "environmentally sensitive" Tri-W site started on September 16... just eleven days before the election, that Richard, Gordon, and Stan deliberately set at one of the latest possible dates. Terrible!
Now that I've finally nailed down those two dates -- for the first time anywhere, I will add -- she's just gotta be sick.
By
Ron, at 10:48 AM, July 24, 2010
There was no need for restoration work in those first 60 days. To quote Jensen, "(2) the hazardous condition must materialize as such within 60 days of cessation of work"
The 60 days passed with no hazardous conditions popping up. The bond issuers are off the hook. The damage occurred later, past the 60 days. As much as I hate to see us pay more, Jensen is right.
False hope is no balm to the sewer-ravaged soul.
By
Sewertoons AKA Lynette Tornatzky, at 11:52 AM, July 24, 2010
'toons wrote:
"Jensen is right.
Nope.
If you could read, you'd see that Jensen is wrong. In fact, it would be hard for him to be more wrong on this.
His time-line isn't nearly tight enough.
Stan, Gordon, and Richard began "mass excavation" at the "environmentally sensitive" Tri-W site on September 16... 11 days BEFORE the cessation of work, and WELL within the 60 day requirement -- "mass excavation" that created a very "hazardous" and "erosive" deep, dirt pit, with a chain link fence surrounding it, in the middle of Los Osos, for the past five years.
If Jensen's time-line were as tight as mine, he'd see that he's wrong... but, of course, he CAN'T do that, because it wouldn't be in his clients' best interest, so he has to make up reasons why they aren't going to use that bond, and people with extremely low critical thinking skills -- like 'toons -- believe him. (Oh well, I'll just chalk it up to Dumb Los Osos.)
Boy, you, 'toons, and the county, seem to have a very weird position on this: Y'all seem to be searching for a way NOT to have the Tri-W site restored at no cost (including "reasonable attorney's fees), despite the county having the sheer brilliance of requiring that bond on the first place. And the brilliant rationale that led to that brilliant bond, ended up playing out perfectly.
And now, the tiny handful of people that were responsible for the Tri-W disaster (including Bruce Gibson's Parks Commissioner, and Warren Jensen's current client), would rather the citizens of Los Osos pay for their embarrassment, instead of the company that took the enormous risk of ripping up all of that ESHA in the first place, Bruce Gibson's Parks Commissioner, and Warren Jensen's client's friends at Monterey Mechanical.
Huh. Imagine that.
I wonder if the other four Supervisors are ALSO behavior-based-marketed into feeling the same way?
By
Ron, at 11:00 AM, July 26, 2010
Time will tell us that Ron is right.
By
Watershed Mark, at 8:19 PM, July 27, 2010
ron, mass excavation is what happens when you start to build a sewer - or how did you think these things happen? This is not the materialization of a hazardous condition.
The damage behind the fence was after the 60 days of cessation of work. If a recovery of money was even a remote possibility, why did not Julie or Lisa - who had been on the board for a couple of years - go after this money? Nice try tho… There are just expensive and unfortunate consequences to stopping a large project like this.
And do you really think that the County is going to fight the insurance company over this? Do you think that the citizens want to pay for another open-ended lawsuit which will in the end fail - like the PZLDF fiasco?
Since you are so concerned over the fate of Los Osos - a town in which you do not live - but feed off of like an embedded tick - maybe WE'D like to hear about the civic interest that you take in your own town - the money saving ideas that you contribute to YOUR town -- Pozo is it?
By
Sewertoons AKA Lynette Tornatzky, at 12:22 PM, July 28, 2010
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