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SNPAA Wine and Roses Gala

The following posted in support of the Sierra Nevada Performing Arts Association (SNPAA), a non-profit organization established to support performing arts schools in Northern Nevada and to provide scholarships to local talented students. To order tickets to the exciting May 12th Wine and Roses Gala go to their website at www.snpaa.org and click on the “Event Information” link.

 

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April 25th BOD Meeting Agenda and Information Packet

The April 25th BOD Meeting Agenda (see April 15th Post) has been revised to include the following items:

  • Unanimous Written Consent – Somersett Development Lawsuit
  • Budget Blinds Proposal for TCTC Kids Room
  • Revised Expense Policy
  • Drainage Map Evaluation Proposal

The SOA has also published (on the SOA Website) the BOD Meeting Packet which provides supplemental information on Agenda items as follows (SU comments in italics):

Committee Reports

  • 4.a – Budget & Finance Committee – Scheduling interviews for adding one new member to the committee.
  • 4.b – Facilities Committee – 1) Garden Tour cancelled due to lack of interest, 2) recommendations for placement of cross walk signage at Willow Ranch Trail, Fire Station/Vue Crosswalk, Andover Trail and Kenton Trail, 3) seeking two members to serve on the Committee.
  • 4.c – Communication Committee – Submitted a draft “Somersett Owners Association Website Standard Terms And Conditions” document for legal review and BOD approval. Purpose of document is to govern the use of the SOA website by its visitors.
  • 4.d – Community Standards Committee – Recommends a revision to the Association Rules and Regulations policy document to authorize three annual community wide garage sales in lieu of the current two.
  • 4.e – SOA Parks Committee – 1) Working with the Facilities Committee to change fund raising date to coincide with the Music on the Green event, 2) proposed scheduling of a Town Hall Meeting on West Park development.
  • 4.f – General Manger Report – Comprehensive report summarizing Association activities (see April 17th Post for discussion on the content and availability of this document).

Old Business

  • 6.a – Legal Update – 1) Regarding the “Northgate” owners litigation a status hearing with remaining plaintiffs was held on April 10th. Plaintiffs indicated readiness to move forward, SOA counsel wanted additional time for Discovery (given the years this litigation has been ongoing, how much more Discovery is warranted?), trial date scheduled for November 19th 2018, 2) SOA Rockery Wall Law suit amended to substitute true names for the John Does, involved parties are attempting to schedule mediation in June 2018.
  • 6.b – Rockery Wall & Landslide Repair Update – 1) All major project repairs completed on budget, 2) landscape repairs still remain in some areas, 3) at the SGCC Hole 5 fairway, the access road has been removed, areas re-graded and the damaged golf cart path replaced, this done in coordination with the SGCC (what about coordination on the SGCC paying for their share of the cost?).
  • 6.c – TCTC Pool Redesign Update – 1) Design finalized, 2) bid package and plans to be sent to vendors by April 25th with bids scheduled for review at May BOD Meeting, 3) construction to start in Fall 2018.
  • 6.d – SGCC Proposed method for Billing Electricity for Canyon9 – Involves controversy over shared electricity costs between the SGCC and the SOA for Canyon9 water pump operation, more investigation required.
  • 6.e – Monument Sign Repair Update – The “Dell Webb at” signage has been removed from the Sierra Canyon West Portal monument, awaiting proposals for additional repairs.

New Business

  • 7.a – Unanimous Written Consent, Somersett Development Lawsuit – Approves continuing the law suit (see previous post of April 22nd entitled “Rockery Wall Litigation Info” for details and comments on this item, believe the BOD has overstepped their bounds here)
  • 7.b – Blinds for TCTC Kids Room – Evaluation/approval of proposal from Budget Blinds.
  • 7.c – Revised Expense Policy – Increases the amount on which bids are generally required for reserve projects from $10,000 to $12,000.
  • 7.d – Slurry Seal Streets & Asphalt Trails (Sealed Bids) – Includes detailed bid solicitation document, area identification and a total project funding estimate of $422K, which is $47K below the 2018 reserve for asphalt repairs.
  • 7.e – Gypsy Hill Rockery Hill Monitoring Proposal – Evaluation/approval of proposal from CFA for monitoring of the three tiered rockery wall on Gypsy Hill Trail for safety considerations.
  • 7.f – Entry Shelf Cleaning Proposal – Evaluation/approval of proposal from Environmental Protection Services for the lower Somersett Parkway shelf cleanup.
  • 7.g – Canyon 9 Upper and Lower Pond Proposal – 1) Lower pond cleanup complete, 2) evaluation/approval of proposal from Soil Tech for hydro seeding the disturbed upper and lower pond areas after cleanup.
  • 7.h – Drainage Map Evaluation Proposal – Proposed proposal for review of Common Area drainage channels, update of a drainage condition spreadsheet and preparation of a drainage map illustrating all drainage channel locations.
  • 7.i – Sales Price on 2225 Pepperwood Ct. – Discussion on lowering the sales price from $85,00 to $79,900 for the SOA owned lot at 2225 Pepperwood Ct. (see previous post of April 15th entitled “April 25th SOA Board Meeting” for details regarding this property).
  • 7.j – Discussion on Basketball Hoop Enforcement – Most likely directed to the use of basketball equipment located on Somersett residential property and related violations.

Got any concerns/comment on SOA issues, agenda related or otherwise? Attend the BOD Meeting and express them!

Rockery Wall Litigation Info

On Friday April 20th, the Somersett Owners Association (SOA) distributed an email to Association members which contained:

INFORMATION BEING PROVIDED PURSUANT TO NRS 40.6472

For our readers who may not be on the SOA’s email distribution list, nor received notification via another mechanism, this information may be accessed by clicking on the above link.

The above transmittal consists of responses from Somersett Development Company (SDC) and Q&D Construction (Q&D) to the SOA’s law suit (i.e., Chapter 40 Notice of Claims) against them for the Rockery Wall defects. Their responses may be summarized as follows:

  • Q&D disclaimed any liability based on: 1) They were “not involved in any way in the design and construction of the rockery walls that are the subject of this claim” 2) The Notice of Complaint failed “to provide any detail as to which alleged defects in the rockery walls are attributable to Q&D’s scope of work” and that 3) “NRS 11.202 provides that construction defect claims may not be brought more than six years after substantial completion of a work or improvement”.
  • SDC’s response was much shorter, simply disclaiming any liability based on the six-year limitation with December 2006 being the completion date for the newest rockery walls.

Note that the SOA is legally bound to distribute these responses within 30 days of receipt to each member of the Association. This raises the question as to how are Association members not on the SOA’s email list receiving this information? Additionally, the SOA transmittal chose only to inform Association members on that which they were legally bound to do, and not to provide any other details regarding status the law suit.

This given that, effective April 14th, the SOA BOD in a “Unanimous Written Consent of the Board of Directors of the Somersett Owners Association” document (a mechanism usually reserved for time sensitive or BOD quorum issues), the BOD agreed to “move forward and continue to pursue the law suit against the Somersett Developer and associated trade vendors”. This apparently based on the results of the litigation vote count, which resulted in 953 ballots received, 716 in favor, 205 opposed and, 36 unusable. Given that 77% of the received ballots were in favor of the law suit, The BOD obviously believes this provides the justification for continuing the litigation.

However, it is not clear that the BOD has the authority to take this action. The 953 ballots received only represent about 31% of the total number of Association members and the 716 in favor about 23%, which is far below a majority (50% + 1) of allocated Association members. This based on NRS 116.31088 which under subsection 1. (e) states the following:

“To protect the health, safety and welfare of the members of the association. If a civil action is commenced pursuant to this paragraph without the required vote or agreement, the action must be ratified within 90 days after the commencement of the action by a vote or written agreement of the owners of the units to which at least a majority of votes of the members of the association are allocated. If the association, after making a good faith effort, cannot obtain the required vote or agreement to commence or ratify such a civil action, the association may thereafter seek to dismiss the action without prejudice for that reason only if a vote or written agreement of the owners of the units to which at least a majority of votes of the members of the association are allocated was obtained at the time the approval to commence or ratify the action was sought”.

It is clear that ratification for the law suit was not obtained via a majority of member allocated votes. Therefore, under what authority does the BOD feel they have the right to continue the litigation? On the surface, they appear to be in violation of the NRS Statute.

At the Rockery Wall Litigation Owners Meeting, the SOA Attorney implied there may be a way to get around the NRS 11.202 six-year limitation statute. Do they now also believe that NRS 116.31088 has an alternate interpretation? Hopefully, the SOA Attorneys have some high degree of legal confidence regarding both these issues, and are not pushing this litigation for their own benefit.

Perhaps this will all be explained at the April 25th BOD Meeting. Although one has good reason to question this, given that the only litigation correspondence to date (i.e., to the Association at large) was the delayed publication of the vote count (after some prompting) and the SDC and Q&D responses to the law suit (required by law).

 

SOA General Managers Report

Beginning  this year the Somersett Owners Association (SOA) FirstService Residential (FSR) General Manager, Tracy Carter, began publishing a monthly “General Managers Report”, which may be found on the Association website (www.somersett.net) under the SOA/Committees and Meetings page (login required).

The report provides a summary of on-going activities and issues within the SOA community, including the following:

  • Aesthetic Guidelines Committee (AGC) and Community Standards Committee (CSC) activity
  • The Club at Town Center (TCTC) events, activities and usage factors
  • Special Projects updates
  • TCTC, Gates and Common Area maintenance work
  • Engineering updates from Padovan Consulting LLC (the SOA’s consulting engineer) on ongoing major engineering projects (e.g. rockery wall & hillside repairs, Canyon9 pond cleanup, asphalt repairs, etc.).
  • General Manager personal activity

For those who wish to keep abreast on what’s happening within the Somersett community, this report provides an excellent summary. However, when reading be aware that the information contained therein may be somewhat dated due to the time lapse from when the report is prepared, accepted at the BOD Meeting and subsequently published on the Association website.

For our readers who have not yet established login capability for the Association’s website, you are encouraged to do so. Note that the Association websites “Committees and Meetings” page also contains Recaps/Meeting Minutes for the various SOA Committee Meetings. Although not always on a routine basis.

 

 

April 25th SOA Board Meeting

The Somersett Owners Association (SOA) Board of Directors (BOD) open meeting is scheduled for Wednesday, April 25th at 5:30 PM at The Club at Town Center (TCTC) Sports Court. The Meeting Agenda may be accessed by clicking on the following link:

April 25th BOD Meeting Agenda

The BOD Meeting Packet to support the April 25th Agenda has not yet been released by the SOA. Upon release, further information related to the Agenda items will be published on this website.

New Business items on the Agenda include discussions on several proposals for Common Area maintenance work and the opening of bids for asphalt slurry sealing of SOA streets and trails.

Also of interest is the discussion on lowering the sales price for the SOA owned property at 2225 Pepperwood Ct, a 21,396 sq. ft. undeveloped lot. The SOA bought this property at auction for $19,068 in February 2015, and is currently on the Market for $85,000.  Property was in foreclosure and subject to a SOA lien for delinquent assessments.  Property is one of seven custom home lots on Pepperwood Ct. that overlook the Country Club’s 13th Fairway, four of which have been built on.  Upon observation, the SOA lot appears to be a very undesirable location on which to build, probably why it hasn’t sold.

SOA Attorney Litigation Letter

In a recent comment Deb Orick commented on the SOA Attorney letter (dated March 18, 2018) posted on the Association website (i.e., under the SOA/Committees and Meetings/Legal Disclosures links), and questioned if most homeowners were aware of it, specifically with regard to the “Northgate” owners litigation.

March 16, 2918 Attorney Letter

With regard to the Attorney letter, per its preamble: “This is a letter which is not subject to the attorney client privilege and which may be disseminated to members of the Association regarding certain maters in which we are presently representing the Association. The purpose of this letter is to apprise the members of such matters an/or for them to utilize such letter in complying with NRS 116-4109 if they are selling their houses”.

This type of “litigation update” letter is not new, and has been routinely provided to the SOA Board for some time now. However, not previously made available to Association members in an obvious manner.

“Northgate” Owners Litigation and Sierra Vista Park

This issue has roots going back to 2012, and has been very costly to the SOA in legal expenses. For the current case docket (CV16-00220) identified in the March 18, 2018 Attorney letter, the SOA has expended approximately $135K in legal expenses with more to come. What is this litigation all about? Perhaps a little history is in order.

In 1985, RJB Development Company deeded property to Washoe County to develop the Northgate Golf Course, which was operated by the Reno-Sparks Convention and Visitors Authority. RSCVA operated the course until 2009. When RSCVA closed the golf course, a property deed restriction required that the land revert back to RJB. For the next three years, the Reno City Council and a group of surrounding residential property owners (including Whisper Rock residents subject to the on-going litigation) worked to persuade RJB Development to allow time to raise the funds to purchase the property for use as a park and open space (i.e., as opposed to sale for residential or commercial development). After months of negotiations, the City reached a deal to purchase the property for approximately $2.5 million. The City formed a Special Assessment District after successful petition by more than two-thirds of the adjacent property owners which generated $1.2 million of the funds. To further off-set the City costs for park use purchase, several Whisper Rock owners entered into an agreement to expand their existing lot size by purchasing some of the Northgate property adjacent to their existing Somersett lots. Hence the source of future conflict with the SOA.

The Somersett Developer under Blake Smith, was of the opinion that the acquired Northgate property should be incorporated within the Somersett boundary jurisdiction and subject to the Somersett CC&R’s. Ostensibly to protect Somersett home values due to potential improper use of the land. After initial conservations with Mr. Smith in this regard went nowhere, the Northgate property owners adopted their own set of CC&R’s to prevent abusive use of the property. Apparently this was not good enough for Mr. Smith, and subsequent Somersett BOD’s, who retaliated by notifying owners that they were in violation of the Somersett CC&R’s by accessing their newly acquired property from their Somersett property (i.e., their backyards). This rather than granting a variance, which they had the authority to do. Hence the necessary hiring of attorneys by both sides to resolve the issue, representing a waste of both SOA and homeowner funds.

What nonsense, it was this same homeowner group that championed the cause and provided funding for the defunct Northgate golf course property being purchased by the City for a public park. Bottom line, the SOA BOD should be grateful to the “Northgate” homeowners who spent time and money to convert this land to a park rather than harassing them about violating the Somersett CC&R’s and therefore, subject to fines. This illustrates a lack of common sense by the previous and current BOD’s. What started out as a “power play” by Mr. Smith was unfortunately carried on by subsequent BOD’s.

Per the March 18th Attorney letter, settlements have subsequently been reached with 12 of the 14 owners involved with this litigation. Although settlement details were not identified in the Attorney letter, apparently it included issuance of settlement checks by the SOA, acceptance of SOA CC&R’s by the Homeowners and concessions on AGC guidelines by the SOA.

For those who may be interested, information on the Sierra Vista Park is available via the following link:

http://www.reno.gov/home/showdocument?id=48811

NOTE: If there are any inaccuracies in the above summary, by those in the know, please submit your correction.

 

Sierra Canyon CC&R’s on Developer Disputes

The following Article from the Sierra Canyon CC&R’s posted by Joe Bower, Sierra Canyon Homeowner

Section 13.04(a) of Article XIII of the Sierra Canyon CC&R’s states as follows below. Please note that in the CC&R’s this whole Section appears in capital letters in order emphasize its importance. For ease of reading not all capitals were used here. The Declarant is PN II, Inc., a Nevada Corporation, aka Pulte.

Section 13.04. Disputes Involving Declarant

(a) AGREEMENT TO ARBITRATE.

IT IS AGREED that ANY DISPUTES BETWEEN the ASSOCIATION or any Owners, AND THE DECLARANT, any director, officer, partner, employee, contractor (as defined in NRS 40.615), subcontractor, design professional or agent of the Declarant (collectively “Declarant Parties”) arising under the Governing Documents or RELATING TO THE DEVELOPMENT, including without limitation, claims for breach of contract, express or implied, breach of warranty, strict liability, negligence, nuisance, statutory violation, misrepresentation, fraud, (INCLUDING CLAIMS in any manner RELATING TO OR ARISING OUT OF A CONSTRUCTION DEFECT as defined in NRS 40.615 which have not been resolved as provided in NRS 40.680(2) (Mediation)), SHALL BE RESOLVED BY BINDING ARBITRATION pursuant to NRS Chapter 38. Owner and ASSOCIATION HEREBY WAIVE ANY RIGHT Owner or ASSOCIATION MAY HAVE TO BRING AN ACTION IN COURT, including, but not limited to, any such right of owner or ASSOCIATION under NRS 40.680, AND ANY RIGHT owner or ASSOCIATION MAY HAVE TO BECOME A PARTY TO A CLASS ACTION CLAIM.

Editorial Note:  The complete Sierra Canyon CC&R Document may be viewed or downloaded by clicking on the following link (also available under the References Section of this website):

Sierra Canyon Notice of Annexation & CC&R’s

SGCC Rockery Wall Repair Obligation

Deb Orick’s comment on the previous post “We Have a Vote Count” posed the question “What is the warranty from SGCC that Tracy referred to?” This with respect to a response from Mr. Tracy (FSR General Manager) regarding rockery wall failures adjacent to the SGCC’s 14th fairway, in which he reportedly stated: “There were two wall failures, one wall belongs to the SOA, the other is part of the golf course which carries a warranty from the SGCC”.

The answer to Orick’s question lies within the Real Property Purchase Agreement executed between the Somersett Owners Association (SOA) and the Somersett Golf and Country Club (SGCC) on August 18th, 2014. A copy of which may be accessed under the References Section of this website or by clicking on the following link:

SGCC Purchase Agreement (Executed)

The following section of the Purchase Agreement contains the warranty clause:

Article 9A “FOUR YEAR WARRANTY; AS IS PROVISION” (page 14). Which in part states: “Seller shall (at its sole expense) promptly and diligently repair, restore, and replace as required to maintain or to remedy all damage to or destruction of all or any part of the Property including capital expenditures. …….Seller’s maintenance and repair obligations hereunder shall continue for four (4) years after the Close of escrow (the Warranty Period), and this 4 year covenant to maintain and repair the property shall survive the Close of Escrow”.

The preceding Article pertains to the SGCC as the Seller of golf course property to the SOA. In addition the SGCC also has property maintenance obligations as a Tenant. This is delineated in Exhibit C “FORM OF LEASE” to the Purchase Agreement. Specifically, the following:

Section 8. REPAIRS AND MAINTENANCE, Subsection 8.1 General Tenant Obligations (Page 5). Which in part states: “Tenant shall (at its sole expense) promptly and diligently repair, restore, and replace as required to maintain or to remedy all damage to or destruction of all or any part of the Premises and the Tenant Property including capital expenditures”.

Section 9, DAMAGE AND DESTRUCTION, Subsection 9.1 Partial Damage to Premises (page 6). Which states: Tenant shall notify Landlord in writing promptly following the occurrence of damage to the Premises where the cost to repair exceeds $5,000. Tenant shall repair the damage as soon as reasonably possible, and this Lease shall remain in full force and effect. Tenant shall pay the cost of such repairs, except that upon satisfactory completion of such repairs, landlord shall deliver to Tenant any insurance proceeds received by Landlord for the damage repaired by Tenant.

Given the above, it is clear to most that the SGCC is liable for the rockery wall repairs on Country Club property sold to and subsequently leased back from the SOA. Obviously, the SOA has given the SGCC at least a temporary pass in this regard to pursue the Somersett Development Company (SDC) et. al. law suit (therefore, should not they be paying a portion of the SDC  legal expenses?).  This also raises the question as to whether an owner vote would also be required to pursue civil action against the SGCC, or would this fall under the NRS 116.31088 category of enforcing a contract with a vendor, for which an owner vote is not required, or would the default clauses of the Purchase Agreement rule? One would expect that the SOA legal team has already looked at this, but is keeping it under wraps for now.

We have a Vote Count!

Subsequent to yesterdays post on “Where is the Vote Count”, SOA management sent out an email to Association Members announcing the litigation vote count results. Was this just a coincidence, or was some prodding in effect here?  Whatever the case, the results were as follows:

  • 716 in favor of the law suit
  • 205 opposed
  • 36 unusable ballots

Note that the number of ballots submitted amounted to 32% of the approximately 3000 Somersett unit owners, and therefore, the 716 votes in favor of ratification fell way short of the required majority vote (i.e., 50% +1) of all unit owners.  Something the SOA did not address in their email. So what now? The Board could decide to extend the voting process, which ran heavy in favor of ratification. However, given the low percentage of initial ballot submittals, it would appear that the Board would be hard pressed to gather the additional 800 votes in favor of ratification should they decide to do so.

Hopefully a decision on how to proceed will be forthcoming shortly. Meanwhile, without a ratification vote, one would assume that litigation activities on the part of the SOA attorneys, and related legal expenses, are on hold.

As of mid-March 2018, SOA legal expenses for the rockery wall issue totaled approximately $62.6K.  This does not include an additional  $13.3K in legal expenses in a dispute with the Country Club over responsibility for the rockery wall failures adjacent to the 14th fairway.

 

Where is the Vote Count ?

It has been 12 days since the March 28th deadline for the submittal of ballots for ratification, or non-ratification, of the law suit against the Somersett Development Company (SDC) pertaining to the Rockery Wall defects. Why is it we are still waiting for a results announcement from the Somersett Owners Association (SOA)?

Reportedly it is in the hands of the Association’s attorneys. Not sure what that means, except perhaps that not enough ballots were received to either ratify or not ratify the litigation and/or some follow-up decisions are in the making before announcing results.

However, this does not excuse the SOA from informing Association members of the vote count results regardless of any downstream decision making.

As a further point, the SOA’s Chapter 40 Notice of Complaint against the SDC was filed with the District Court on December 28th, 2017. Per NRS 40.6472, the respondent (SDC) must, within 90 days, provide a written response, via certified mail, to the claimant (SOA). Therefore, given we are past the 90 day limit, one would assume that the SOA and its attorneys are now in receipt of the SDC’s response. Once this response is received, NRS 40.6472 further states that the SOA is required to send a copy to all Association members within 30 days. Obviously, the SDC’s response to the lawsuit is of paramount interest to Somersett owners, especially if some additional voting is in the cards.

Bottom line, given the significance of this lawsuit and its impact on owners, it is time for SOA management to provide an update on the litigation, including answers to the following:

  • Were enough ballots received to either ratify or not ratify the law suit?
  • What was the actual vote count?
  • Will an extension on ballot submittals be required in order to obtain a majority vote?
  • Has the required SDC response to the Rockery Wall defect claim been received? If so, when will it be made available to owners? If not, why not, has some accommodation been made with the SDC in this regard?