I've read the actual document now. My opinion doesn't change. There
is no guarantees (financial or otherwise) beyond the initial
projects. In fact, there are financial guarantees beyond 25% of the
cost. In other words, if Asbury Partners does not want to go ahead
with the initial projects after posting the 25% escrow, we have
nothing else. Of course, when they start the projects, performance
bonds for the full amount are posted.
However, as I said before, the complete restoration of the Casino,
CH and Power Plant, in terms of scope, timelines and costs, are
designated as TBD. The agreement gives the city "input" into the
timelines and I am sure that is anticipated that when the timelines
and costs are agreed to that perfromance bonds etc. will cover it.
But, we have NOTHING NOW to guarantee that they will ever be
restored by Asbury Partners as promised 4 years ago.
What I also take issue with is that the escrow agent is a law firm
chosen by Asbury Partners. Why was it not one chosen by the city, or
at minimum, mutually agreed to by both parties.
The City also gave up its right of default on these issues; it has
to go through the arbitration process. It may also be that the city
was hoodwinked again by too smart, or not too smart attorneys. The
agreement sets forth definitions and whatever is not specifically
defined in the new agreement has the meaning as defined in the
original RA. Force majeure is not redefined in the new agreement
which leads me to believe that it has the meaning as set forth in
the original RA; that is, it includes litigation. The timelines set
forth in the new agreement are subject to force majeure. While the
new agreement sets forth conditions typically defining force
majeure, these conditions are not specifically defined as such in
this document. Thus, it may be that the timelines here are subject
to the force majeure outlined in the original RA.
The subcommittee settled for a base hit when it should have swung
for the fence.
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