UPDATED TO INCLUDE HOA RESPONSE – Mountain Side Owners Request Mountain Side Lake Conveyance Agreement Per Colorado Revised Statute Title 38. 38-33.3-317

MANAGER HAS PROVIDED LAKE TRANSFER DOCUMENTS AND IT TURNS OUT THE LAKE DOCUMENT SIGNED IN 2004, FIRST PARAGRAPH UNDATED, WAS NEVER ACTUALLY FILED IN 2004. THE DOCUMENT THAT THE HOA IS CALLING THE “AMENDED AGREEMENT” WAS NOT ACTUALLY FILED UNTIL 2009 AND IS IDENTIFIED BY THE COUNTY AS the ONLY AGREEMENT AND NOT AN AMENDMENT TO AN EXISTING AGREEMENT. THE AGREEMENT FILED IN 2009 WITH A RUDIMENTARY CHANGE WAS DONE POSSIBLY TO COVER THE FACT THAT THE 2004 DOCUMENT WAS NEVER FILED. THAT LEAVES MANY QUESTIONS.

THERE ALSO SEEMS TO BE SOME PROPERTY MARKERS MISSING, SOME MARKERS MOVED AND A PATIO AND ROPE ACROSS THE PEDESTRIAN EASEMENT. ALSO THE FOLLOWING DOCUMENTS HAVE NOT BEEN INCLUDED AND HAVE BEEN PULLED.

These are the documents that were filed by United Water and Sanitation District in 2006 and that predated the first filing of the conveyance agreement which was filed in 2009 and that they now call the “amended agreement”:

921999 10/10/2004 AGM 0 – Agreement Filed in 2009 Conveyed Lake United Water Paid $10.00
86557 8/23/2007 – License to Bromley Companies, LLC $0 + $154.95 per year thereafter – Controlled by Bob Lembke

921999 10/10/2004 AGM 0 – Agreement Filed in 2009 Conveyed Lake MS HOA Paid United Water $20,000
858450 6/19/2007 EAS – License to Theodore Johnson $0 + $154.95 per year thereafter
859129 6/25/2007 EAS – License to Tom and Robin Manteuffel $5,000 + $154.95 per year thereafter
815753 1/31/2006 EAS 0 – License to Dana and Ross Sheely $5,000 + $150 per year thereafter
815752 1/31/2006 EAS 0 – License to Art and Marilynn Burger $3,000 + $150 per year thereafter
815751 1/31/2006 EAS 0 8 – License to Judith and Robert Anderson $2,500 + $150 per year thereafter
15750 1/31/2006 EAS 0 – License to Beverly Cummer $5,000 + $150 per year thereafter
815749 1/31/2006 EAS 0 – License to Richard and Patricia Tucker $2,500 + $150 per year thereafter
815748 2/7/2006 EAS 0 – License to Ben and Karen Little $5,000 + $150 per year thereafter
815747 2/22/2006 EAS 0 – License to Jim Little $5,000 + $150 per year thereafter
829670 08/14/2006 EAS – License to Hugo and Barbara Palacios $5,000 + $150 per year thereafter
86007 08/14/2006 EAS – License to Hugo and Barbara Palacios Amended lot #
771380 10/10/2004 QCD 0 – Quit Claim Deed to United Water
270611 10/1/1983 WD 0 – Original Warranty Deed

Mountain Side Owners have formally requested that the Mountain Side HOA Board of Directors provide a copy of the Mountain Side Lake conveyance agreement. They have also requested confirmation that legal fees associated with the Mountain Side Lake have been recouped.

The Mountain Side Board of Directors has responded to the below owners request. Mr. Scott Ponds of the Mountain Side HOA Board of Directors denied, on behalf of the board, to provide the owners documents and information that has not previously been made available. Instead, he directed owners to “do their homework.”

The response seems to be honest and forthright originating from a board member who cares deeply about the HOA and the part he plays in managing the HOA. But curiously, the response also expands into other areas and addresses other previously unknown subjects that, while interesting and valuable, were irrelevant to the information and document requested. Subjects that raise even more questions.

Questions like what “tens maybe hundreds of thousands of dollars” in government funds were used? How did that save money for the HOA?

There’s a PowerPoint Presentation? Where is it and why hasn’t it been made available to owners? The Power Point was apparently presented after the transfer had occurred during the 2009 Annual HOA Meeting. That meeting was was attended by owners representing only 29 votes aside from board members. This means that less than 10.5% of the owners, aside from board members, were fully informed of the transfer. After the Power Point presentation, a vote was held to affirm or deny the board’s decision to transfer ownership of the lake. A transfer of ownership that had already occurred. Aside from the board, 19 voted to affirm and 10 voted to deny. That means that aside from the board, 6.8% of the unit ownership voted to transfer ownership of the lake.

And how does Mr. Ginsberg enter into it? The legal fees outlined in the minutes were attributed to the Bills Ranch Water District negotiations and related due diligence not to any Mr. Ginsberg. Mr. Ginsberg apparently questioned the board in turn requiring the board to fulfill their fiduciary duties to owners by conducting proper due diligence and that was communicated as the cause.

There are many mentions in the meeting minutes of HOA legal costs generated from Bills Ranch Water District’s desire to use the lake for storage. There are many mentions of the transfer being prompted by sudden liability concerns and insurance costs that were never a concern over the previous 25 years. There are many mentions of HOA legal costs associated with conveyance of the lake to the United Water and Sanitation District. There are references to costs associated with dredging. There are references associated with “being forced” to conduct an appraisal that came in at nearly $500,000. But there is no mention of direct legal fees associated with any individual owners. And there is no mention of why the United Water and Sanitation District was better suited to own the lake than the Bills Ranch Water District or the HOA other than liability and insurance costs which, in hindsight, turned out to be false because incorrect underwriting information was used to determine insurability and premium levels. There was no mention of why the conveyance was not put up for a vote to the entire membership. There was never any threat of condemnation or eminent domain made by Bills Ranch Water District or any other party. There was never any mention of why the HOA thought the Bills Ranch Water district might try to exercise eminent domain or even why that would have been a bad thing by comparison. The only mention was that “it happens all the time.” We are unable to find any similar case particularly when the only records available showed that the water and storage rights were owned by a Mr. Richard Blumenhein.

Finally, the board’s email below clearly states to the owners (us) who requested the documents that “I will make sure all legal fees that are redundant to this issue are exposed an attributed to you” and “I am copying the Managers, and board members, and requesting all homeowners receive my stance” and “Susan and Phil please make sure my feelings and stance are recorded and distributed.”Why would the HOA Board require legal advice to provide documents that they are required to provide anyway? Why would owners asking for documents and information relative to their own HOA be viewed as a bad thing warranting exposure and attribution or retribution? It’s almost as if the BOD feels that owners should not dare question the BOD or that they should fear exposure. Isn’t that the reason for public meetings, minutes and transparency in the first place? In any case, we too would welcome this information as we too would like to see descriptions of legal fees that are being attributed to individual owners if that is indeed happening.

Costs associated with the Mountain Side Lake were identified in the minutes but did not clarify who is actually paying, who actually paid, who didn’t pay, who didn’t benefit, who benefited or who continues to benefit or will benefit in the future.

Although the BOD’s response centers around this specific request for a copy of the conveyance agreement as a “redundant” request, we’ve never before asked and the last time we could even find a record of any owner asking about the same subject was in May, 2012. A similar type of response was received from a Mountain Side Board Member then. The following is quoted from the May, 2012 Mountain Side HOA BOD meeting minutes.

“Bob Lembke stated United has put a tremendous amount of time, effort, and money into the lake and he’s tired of questions that have been addressed before. He felt the implication that United might not give the lake back was offensive. Bill went through the steps that were taken when the lake was deeded to United. Mr. Palacios was familiar with this from reading the minutes but felt the minutes were not detailed enough to give a complete picture.”

Hopefully Mr. Ponds will hold true to his promise to have “Phil and Susan” “distribute” his “stance” to all owners relative to our efforts and point them to this site. Contrary to Mr. Ponds’ understanding, this site is not here to promote rental but rather to promote interactive communication between interested owners and we’ve been working to have them visit it for a very long time.

Following is the response owners received from Mr. Ponds (the HOA BOD) on October 5, 2013

_____________________________________________________________________________

From: Mr Scott Ponds [mailto:sponds@yahoo.com]
Sent: Saturday, October 05, 2013 12:14 PM

To: TM

Cc: wmeek@sedgwick.com; artburger@comcast.net; dcacace@chatfieldconsulting.com; ethangibson@hotmail.com; boblembke@unitedwaterdistrict.com; wmeek@outlook.com; ptp100@comcast.net; SPONDS@YAHOO.COM; sdsmith4u@hotmail.com; allenhj@msn.com; Susan Witkowski; Phil MtnManagers

Subject: Re: Mountain Side Lake Conveyance – Formal Request For Production of Records Per Colorado Revised Statute Title 38. 38-33.3-317, Effective 01/01/2013

As far as I am concerned, this matter has been vetted, researched, explained to the owners in a power point presentation in an annual owners meeting two years ago, and processed to save tens maybe hundreds of thousands of dollars spent by government funds instead of homeowners funds for dredging and levee replacement. The procedures are in the records and minutes and Mountainside retains the ability (extended as is explained in the annual meeting) to regain possession of the lake at any time in the next ten years.

You will enlighten yourselves to all the facts of how and why by examining minutes and meetings and the how and why by not wasting our time that has already been spent till we are blue in the face in an overwhelming fashion. YOU need to do the homework, not us.

My patience is wearing thin regarding our constant effort to SAVE money for homeowners, that we as a board have been trying for years to implement, that has been challenged and challenged again. Your question as to why law expenses are so high is easy to answer: John Ginsberg cost you that money by asserting the same allegations you have and the board having to defend itself in the name of our homeowners. Chasing the dead end road you seem to want to go down will once again be vetted and explained costing YOU and our lawyers (and every home owner) for a second time, MORE MONEY. Letters from our lawyers to you, as explained by Phil in the annual meeting are already necessary and cost the association money each time you make these redundant allegations.

My fellow board members will do the PC thing and try to smooth this with nice talk. I will not and have never parsed words. You are doing nothing with this than costing more legal fees to our association to defend allegations that have been explained and explained. I’m not doing this again. Do your own homework. This board and those who sit on it have done nothing but save you money, prevented no assessments, and keep dues down by acting and leading in an effort to protect all members best interest and pocketbook, and I will make sure all legal fees that are redundant to this issue are exposed an attributed to you. Our members will decide.

I am copying the Managers, and board members, and requesting all homeowners receive my stance and I stand by all I have said. All the answers you seek are there. Go find them, and stop costing homeowners legal fees as you seem to want to do. If you don’t like my attitude, then get in the game and run for the board, get off the sidelines and stop being a Monday morning quarterback. Otherwise examine the fine job we as a board have mustered. The record speaks for itself and we have done nothing but look out for you. Owners might also want to examine your attempt to purport your website as an official representation of our association only to rent your own properties, so let’s not throw too many rocks while living in a glass house.

Susan and Phil please make sure my feelings and stance are recorded and distributed.

D Scott Ponds

_____________________________________________________________________________

Following is the formal request sent on October 5, 2013

_____________________________________________________________________________

From: TM
Sent: Saturday, October 05, 2013 7:39 AM

To: ‘wmeek@sedgwick.com; ‘artburger@comcast.net; ‘dcacace@chatfieldconsulting.com’; ‘ethangibson@hotmail.com’; ‘boblembke@unitedwaterdistrict.com’; ‘wmeek@outlook.com.’; ‘ptp100@comcast.net’; ‘SPONDS@YAHOO.COM’; ‘sdsmith4u@hotmail.com’; ‘allenhj@msn.com’

Cc: skicountyusa.com’; ‘je@gogh.com’

Subject: Mountain Side Lake Conveyance – Formal Request For Production of Records Per Colorado Revised Statute Title 38. 38-33.3-317, Effective 01/01/2013

Dear Mountain Side Condominium Association, Colorado HOA-24048, HOA Board of Directors;

Per Colorado Revised Statute Title 38. 38-33.3-317. [Effective 1/1/2013] Association records, we are formally requesting that the Mountain Side Condominium Association, Colorado HOA-24048, HOA Board of Directors provide us with the following records. We are requesting that the records be made available no later than October 18, 2013.

In reviewing the HOA records, we found substantial information related to the transfer of the Mountain Side Lake to the United Water and Sanitation District. Those documents also referenced the agreement that outlined terms of that transfer.

1.) We are formally requesting that a copy of the conveyance agreement be made available no later than October 18, 2013.

Following is from the HOA Meeting Minutes of October, 2011 and references the agreement we are formally requesting:

“The agreement was amended to allow Mountain Side to take the lake back on demand. Mountain Managers will contact Felice (attorney) for a copy of the amended agreement and forward to the Board. There’s not much more to do except wait until the dam work is done.”

2.) We are formally requesting documentation with respect to the legal bills generated before, during and after the Mountain Side Lake conveyance, including verification that those fees have, or have not, been recouped, no later than October 18, 2013.

Following is from the HOA Meeting Minutes of May, 2011 and references the information we are formally requesting:

“ The Condo Association has spent over $30,000 on legal expenses. It was decided at the last meeting that Bob would negotiate with Bills Ranch Water District and require payment of legal fees before entering into any agreement. They have offered $20,000. No one else can effectively negotiate; the lake belongs to United Water District and not to Mountain Side.”

“Bill stated that he believes Bob is working to make the best deal for United but is also trying to protect the interests of Mountain Side. It was made a part of the conveyance agreement that no lake related decisions would be made without approval of the Mountain Side Board.”

Thank you,

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