Monday, February 04, 2008

An Opportunity for the Lumpencitizens to Throw in Their Two Cents

An invitation to help our beleaguered City Council/RDA Board with the latest Boss Godfrey development agreement

The Midtown at the Junction Hotel project is again in the Emerald City news this morning, with this Scott Schwebke story, from which we incorporate the essential facts:
OGDEN — The developers of a proposed 300-room downtown hotel and adjoining indoor water park would be responsible for repaying $18 million in bonds that may be issued to build two parking facilities for the project, according to a city official.
Ogden may establish two special assessment areas for parking at the proposed 14-story Midtown Village at The Junction hotel at the northwest corner of 23rd Street and Washington Boulevard and a 32,000-square-foot water park planned across the street, said Richard Mc-Conkie, the city’s deputy director of community and economic development.
A special assessment area is a designated location in which the market value of real estate is enhanced by public improvement projects, McConkie said. A special assessment is levied against properties in the improvement area to cover the costs of the projects. [...]
The responsibility for repaying the bonds would rest with Midtown Development, Wave Development and possibly other businesses that may be served by the parking facilities, McConkie said. [...]
The Ogden Redevelopment Agency Board, made up of the city council, may vote on a development agreement for the Midtown Village hotel Feb. 12.
We've tangentially discussed this proposed development agreement before, in various lower comments sections; but we believe the publication of today's Std-Ex story presents an ideal opportunity to bring this document to the Weber County Forum floor for a more focused examination; and we're going to go ahead and do just that. We're hoping that our community-minded readers will all roll up their sleeves and chip in their own 2¢. Any terms or provisions that our readers reasonably believe to be problematic, we'll be sure to pass on to our Emerald City Council/RDA Board, prior to February 12. We know our city legislature loves to hear from us -- and frankly -- we believe they need all the help they can get.

The full text pdf document can be viewed here. It's a fat document; so please be patient while it loads.

For starters, several readers have already raised red flags in comments and emails about paragraph 2.9.1 of the document, which appears beneath the section heading labeled "2. 9 Urban Gondola." The last sentence of that paragraph contains this language: "The city understands and agrees that the Developer is relying on the location of the Gondola Stop as a material factor in deciding to build the project."

Although the subject paragraph begins with conditional language ("...if and when the Urban Gondola is built..." ), we do believe our readers have a valid point in raising their objections to the inclusion of this language in the proposed development agreement. The term "material inducement" is a legal term of art, implying that the RDA Board (or its negotiator & RDA Director Boss Godfrey) may have made representations of fact to the developer during negotiations which are not set forth in the document itself. We've scoured the web for a good reference to the potential legal implications of this; and we believe we've found an accurate and succinct description of the nature of the problem here.
Express representations are statements of material fact, made by one party to induce the other to agree to the contract. Often these are oral statements made during negotiations. Sometimes a prudent party will insist that representation be recited in the contract itself and declared to be a "material inducement" to the agreement. If the representation later proves to have been misleading or inaccurate, the party who relied on it might have a claim for misrepresentation (intentional or negligent).
In truth, we really don't know the precise nature of representations that might have been made to the developer during negotiations. We do however know, from eight years experience, the nature of Boss Godfrey himself, and that his style is expansive and grandiose -- and sneaky. Inasmuch as the failure of the above-stated "material inducement" provision (predicated upon construction of an urban gondola) could conceivably spring forth an array of legal remedies for the developer (actions for breach of contract, rescission, fraud, etc.), we believe the objections of the several readers who have already chimed in on the subject are well taken, and we do hope the Council/RDA Board will at the very least run this provision by their independent legal counsel.

Okay, we've now gotten the ball rolling on this; and we'd now like to hear from our gentle readers, some of whom have been champing at the bit for a week for a dedicated discussion thread on this topic.

The floor is open. Let the discussion begin.

Don't let the cat get your tongues.

22 comments:

J. Spencer said...

I'm sure Godfrey has already told Myler the gondola's in the bag.

Bill C. said...

It's interesting that thru out all of this, two things are missing, things that a reasonable person would believe should be required before the public (tax dollars and or liability) would even entertain participation.
Is there a need thats been demonstrated by the developer for his project? Does the general public desire this developement?
It's rather apparent that the whole motivation behind this thing is an unbelievably stupid urban gondola. As for it's need, they will never be able to demonstrate in a sane rational way that this is needed.
As for if the public desires an urban gondola, look at how lying little matty ran away from this discussion and how it disappeard during the recent election. His own actions provide the answer to this question.
I would hope all the council could see clearly that these factors represent a perfectly sound basis for not participating what so ever, until someone can plainly demonstrate that these two conditions are met.

Curmudgeon said...

Today's NY Times has a fascinating story about a 19-member County Commission in Tennessee that acted with such arrogant contempt for both the law and the voters' will, that it triggered a grass-roots revolt that stands fair to alter the County charter, remove "Lumpy" and other such boorish oafs from the Commission [read story for details], and sharply reduce the number of Commissioners as well as prevent County employees from holding seats as commissioners. It's quite a story and not without interest, perhaps, to those here who are thinking about revising Ogden's form of government. If not Weber County's. [See today's SE editorial which points out the... well, idiocy really is the right word... of Weber County Commissioner Zogmeister's opposing an outdoor smoking ban out of fear that it would prevent smokers from seeing their children play soccer. She is, of course, a Republican.]

If you have a minute or two, the Time's story makes a very interesting read. Link here.

Bill C. said...

It went kinda unmentioned but, over the weekend Walmart finalized aggreements with West Haven. As the ink was drying from the announcement of the Ogden store, Walmart was making sure to limit the amount of shoppers it would be able to draw. The West Haven store will be just minutes away from the Ogden store.
Looking at the western Weber Co. their goal must be that should not have to drive 10 minutes in any direction without reaching a Walmart.

googleboy said...

West Haven eyed for newest Wal-Mart location

we ain't no dummies said...

Well, well -

John Arrington has a new Ogden City employee, Christopulos, spouting the Godfrey party line which is that developers will pay for the bonds for the parking terrace.

If you read the fine print you get the big picture which is that Ogden City will obtain the bonds and pass through the proceeds to the developer.

The catch in all this is that all of us taxpayers stand to pay the bill when the hotel developer goes flat-dab out of cash like other projects have been known to do in the past.

It has only been a few weeks since the RDA let us in on the fact that taxpayers are eating a $million or whatever the figure was because a project didn't fly.

My, my -
Do they not understand financing?

The proof is that they would rather keep coming up with air castles and lying to those of us who pay for their air castles in the long run.

Curmudgeon said...

OK, Rudi, since you asked....

1. I have no problem with developers wanting to put an indoor-water park and transient and condo hotel downtown. I hope they are spectacular successes Nor do I have a problem with the city providing the kind of support it provides for other businesses [streets, sidewalks, street lighting, etc.] at the public's expense. Nor do I have a problem with public parking lots, built at public expense, for the benefit of all visitors and area merchants in the vicinity. Nor do I have a problem with using a special assessment area to pay for civic parking garages or lots.

2. The bonding procedure outlined in the story raises one question I'd like the Council-as-RDA to address in public session: does it leave the city's ratepayers on the hook if the hotel/water park are either not completed or go under. [Let us remember that the much touted Crowne Plaza tanked, as did, for a time, the Ben Lomond. These things do happen.] Will the city be on the hook for bonding that produced the 274 exclusive-use parking sites for the benefit exclusively of the developers of the hotel? Be good to have a clear answer on that before things are finalized. The city's being on the hook for open public access parking doesn't bother me. It's only the exclusive-use parking that has me concerned about us getting stuck with the bill.

3. One concern I had was addressed by the SE article. It does seem according to the article that the Development Agreement signed by the mayor and the developers is not binding on either party unless and until the Council approves it. That's good and it's nice to have the point cleared up.

4. The big remaining concern I've got, again highlighted by Rudi, is that this Development Agreement would be a kind of Trojan Horse that will obligate the city to build, somehow, the Mayor's wholly impractical flatland gondola from downtown to WSU. Rudi has highlighted the troublesome language. But if the advocates of the agreement are going to argue... as I suspect they will... that that language in no way creates or can create a financial obligation for the city, they can then have no reasonable objection to that language being removed before the Council approves the agreement. Que no?

5. And so, if the advocates of the agreement have some argument they want to make against taking out this language --- ""The city understands and agrees that the Developer is relying on the location of the Gondola Stop as a material factor in deciding to build the project." --- I would very much like to hear what that argument is. And I'd like to hear it on the record in a public forum.

glad you got the picture said...

well put, curmudgeon!

Bill C. said...

How much parking does $18 million buy? Somebody ought to do a survey of how much parking is all ready available in the immediate area, including the exsiting mall parking structue and giant parking area west of the junction. Might include the Can building parking structure also, wasn't it built with $4.5 million tax dollars?

dan s. said...

Someone should be asking how much parking is needed at the Junction, and how the figure was arrived at. The new structure is supposed to be 38% parking. That's an enormous percentage, when you consider the huge parking structure that's already there, right down the block.

Instead of subsidizing more parking spaces downtown, we should be finding ways to bring people into downtown without their automobiles.

(Almost forgot to mention the elephant in the room. The public parking at this building is obviously intended for gondola patrons. If the gondola isn't built, it serves no purpose.)

Moroni McConkie said...

Bill C.:

For many in West Haven and the western climes of the county, 20th & 21st Streets have become the route of choice into Ogden now that 12th is infested with too many traffic lights and stopped trains

My first reaction on hearing of the "new" Ogden Wal-Mart is how the traffic around it might deter western folks from hitchin' up and comin' into town. But if they have their own store, it might make little difference.

Curmudgeon said...

Dan:
You wrote: Someone should be asking how much parking is needed at the Junction, and how the figure was arrived at. The new structure is supposed to be 38% parking. That's an enormous percentage, when you consider the huge parking structure that's already there, right down the block.

Damn good questions. I wonder what the answers are?

As for this: (Almost forgot to mention the elephant in the room. The public parking at this building is obviously intended for gondola patrons. If the gondola isn't built, it serves no purpose.) The flatland gondola will have little access along its route for Ogdenites,[one station, mid route last I heard, at I think 26th and Harrison] and so will not provide a way downtown and back for most people living along the line [as say a trolley line would]. But then again, that's not its purpose. Its purpose is to haul touristas back and forth between the hotel and the base terminal of yet another gondola line Mr. Peterson presumably wants to build to carry those same touristas to the vest pocket mini-ski area he presumably presumably still to build in Malan's Basin.

Naturally, Hizzonah did not make his determination to build this white elephant flatland gondola a part of his re-election campaign --- sound evidence, it seems to me, that he understood then, as he understands now, that the flatland urban gondola is not something the residents and voters of Ogden want. Or need. It's just something his cronies want. He was willing to sell off Ogden's largest park in the foothills, Mt. Ogden Park, to accommodate them until that became politically too expensive. Good evidence that he will continue to look for ways to accommodate his cronies, at the expense of the public purse and the public good, if he can possibly conceal his intentions in a plan that appears to be about something else... until it's too late.

disgusted said...

bill c brings up a good question.
what is the city need for this project.
i can see why a private investor would want to build the project if they thought it would be profitable but where is the city need that requires us to invest money and take risk in this project. i dont see it. this whole project should be funded by the privete investors. ogden city is not and should not be in the finance business or should it be taking on financial risk for private investors.

disgusted said...

se today said 300 hotel rooms yet the development agreement only set aside 100,000 square feet of space for the hotel portion of the development.
average hotel room size is 325 sq feet. sounds reasonable until you allow for hall ways elevators maid stations lobby restaurant lounge exercise room back room offices bell boy station mechanical stations. city will be lucky to see 150 rooms after all the other considerations. ogden currently today has more vacate rooms available locally than that number. ben lomond hotel could add over 100 rooms if the economics made sense today. one has to ask why havent they built out more rooms there. i suggest the answer is obvious when the average occupancy is less than 65% in our area hotels. so how can you justify this project based on the need for more hotel rooms.
and i dont think we need more parking in the mall as the lots there is never even close to full. so cant justify the project based on parking need.
so i ask the same question as bill c where is the need.

disgusted said...

if the investor wants to risk his own money for the whole project i say let him go for it but not with ogden city money or ogden city financing or ogden city risk. ogden has no business participating in a project that should be a privately funded business venture.

Bill C. said...

Dan, thanks for streamlining my point to the level that Curm finally got the jest of it.
Curm, you sure put down alot of words to posture your thought as open to the possibilities of acceptance of what this Midtown bunch is requesting.
I must remind you that this whole scam is based on a very stupid silly urban gondola scam. Curm, saying flat out no to stupidity does not make one a NAYSAYER.

Curmudgeon said...

Bill:

Again, we disagree. If private developers want to put down their own money on a downtown hotel/condo tower, and add, at their own expense, hundreds of parking spaces to service a flatland gondola that they hope, maybe, someday somebody will build, they're welcome to do so. With their own money and without incurring a dime of financial obligation for the city if no gondola ever gets built. If they gamble and stand the whole loss if they lose... well, that's business. Risk implies the possibility of loss as well as of profit.

I still don't see a problem with taking that stand on the matter. At no point have I suggested the city should finance the developers' planned condo/hotel or "high adventure" wading pool or private parking facility beyond what the city provides for any business operating downtown [streets, streetlights, etc.]

Bill C. said...

Curm, $18 million far exceeds what the would should or has done for privite individuals. To imply it's for parking, in an area that all ready has an abundance of parking is more than a little disengenuous.
I might add that there is also a good size parking structure at the convention center/Egyptian.

Curmudgeon said...

Bill:

That decision... whether there is sufficient parking downtown for present and future business... is one for the Council to make. I don't have the numbers or the projections. I presume/hope the planning commission, and now the Council, have some well-grounded numbers in front of them. But, I concede, I don't know that that is so.

I do know that earlier last year, Historic 25th Street merchants were complaining that the lots were filling and that their customers were having trouble finding parking. Or so it was reported.

As for the larger private investment in the condo/hotel and high adventure wading pool complex: if the success of those projects depends upon the success of a four and half mile flatland gondola from down town to WSU along scenic Harrison Blvd, then those projects are slated for a very expensive failure. I doubt that anyone who is not in thrall to Mr. Godfrey and Mr. Allen's tourist gondola obsession would seriously contest that. I do notice that Godfrey/Geiger are no longer claiming the flatland gondola will pull hundreds of thousands of touristas on their way to Yellowston off I-15 mid-summer to take a steamy gondola ride to WSU and back. Be thankful for small favors....

The real loss for the city in all this is that Mayor Godfrey will continue to prevent the city's moving forward with trolley or BRT transit over the downtown WSU corridor --- which he's done for the last two years --- in order to preserve that route for his gondola poles.

Bill C. said...

Curm, that last post represents a much improved tonal quality, it's gotta be a good day.

zabo the magician said...

Curmudgeon wrote:

"The real loss for the city in all this is that Mayor Godfrey will continue to prevent the city's moving forward with trolley or BRT transit over the downtown WSU corridor --- which he's done for the last two years --- in order to preserve that route for his gondola poles."

I would humbly add that the Mayor is doing this in a time when the Federal Government has been drastically cutting back on the amount they will kick in for such transit systems. The projections by some in the know is that these cut backs will continue in the future. Thus, if and when the city does apply for Federal Funds for a transit line there very well may be no funds to be had.

Moroni McConkie said...

Curm: One of the milder stumbling blocks inherent in the Ogden gondola concept is the unconscionable distance between its two flatland stops: the Junction downtown and the base terminal to Malan's, somewhere near Mt. Ogden Park.

Is it remotely possible that this could be thought of as Matt Godfrey's Wide Stance?

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