Tuesday, June 25, 2013

City: 'We'll appeal Shipyard Associate's Monarch decision'

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Tuesday June 25, 2013

City of Hoboken

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Community: City of Hoboken Will Appeal Monarch Decision & Continue to Fight Waterfront Development

The City of Hoboken is appealing a recent decision regarding Shipyard Associate’s attempts to develop residential buildings on a waterfront pier, known as the Monarch project, in place of promised amenities.

“Defending the City’s interests can require an investment in strong legal representation, but that investment is paying off,” said Mayor Dawn Zimmer. “We will continue to defend our interests, and in the case of the Monarch development, continue to fight to hold developers to their promises and protect our waterfront from inappropriate development.”

On Friday, June 21, Superior Court Judge Patrick J. Arre dismissed Hoboken’s complaint which sought a court order to enforce the Developer’s Agreement and compel Shipyard Associates to construct 3 tennis courts and a tennis pavilion on the North Pier. The City filed suit in 2012 in order to enforce the 1997 Developer’s Agreement between Shipyard, the Planning Board and the City that provided for the construction of a multi-phased, mixed use project along the waterfront, including over 1,000 residential units. According to the Agreement, Shipyard agreed to construct the tennis improvements as the last phase of the development.

But in 2012, Shipyard unilaterally decided to abandon the public recreational tennis use and replace it with two 11 story residential buildings, known as the Monarch project, on the pier in front of the Hudson Tea condominiums instead.

Judge Arre concluded that the Development Agreement could not be enforced by the City because it was dependent on the terms of the 1997 Planning Board Resolution. He ruled that a developer could seek to amend a planning board resolution, which, if approved would alter the development agreement.

Last year, the Planning Board denied the application of Shipyard to amend the 1997 Resolution. The Planning Board cited the pending lawsuit filed by the City which asserted that the City’s consent was needed before a change in the project on the North Pier could be considered. The Planning Board denial was without prejudice, pending the conclusion of the City litigation.

Shipyard countered with a lawsuit against the Planning Board, claiming that, under statutory law, an application which is determined to be complete by a planning board, but that is not considered after 120 days, is automatically deemed approved. The lawsuit against the Planning Board to determine the validity of Shipyard’s argument will now proceed. The outcome of that separate litigation will determine whether it will be necessary for Shipyard to proceed with the application to the Planning Board.

The Judge also dismissed Shipyard’s counterclaim which sought damages from the City and alleged that the City breached the Developers Agreement by filing suit and objecting to the Monarch project. He concluded that the City had a right to object and seek judicial review and did not act in bad faith in challenging the decision to replace the tennis improvements with the new towers.

Shipyard has financially benefited from development of more than 1,000 residential units on Hoboken’s Gold Coast and now seeks to renege on the agreement to provide the public recreation improvements that will benefit the people of Hoboken.

Mayor Zimmer has instructed the City’s special counsel to file a Notice of Appeal of the decision with the Appellate Division, in order to legally enforce the commitment of Shipyard to build the tennis improvements as a key feature of the massive Shipyard project and to prevent inappropriate residential development on the North Pier.

In a related matter, Mayor Zimmer has successfully lobbied for a critical change in proposed State legislation that would have overridden local laws and permitted residential and commercial development on Hoboken’s piers. The sponsors, Senator Sacco and Assemblyman Prieto, listened to Mayor Zimmer’s concerns and agreed to amend the bill to apply only to communities that choose to “opt-in” and authorize such development, something that Hoboken will not do.

In addition, the recent impacts of Superstorm Sandy on the City have demonstrated the need to prevent inappropriate development uses on the City’s piers. Mayor Zimmer will therefore pursue additional legal measures to protect against such development that exposes residents and property to hazards.

Jake Stuiver reminds fellow HHA commissioners on Carmelo Garcia "legally flawed" contract designation by HUD

Commissioner Stuiver responds to HHA Rob Davis letter on Hoboken Patch

Dear Horsey:

I agree wholeheartedly Hoboken Housing Authority Chairman Robert Davis III’s central argument in his response to my statement on the ongoing general-counsel-contract standoff – “The facts speak for themselves.”

Chairman Davis is 100 percent correct, the facts do speak for themselves, and on this issue there is no fact more devastating to Chairman Davis, Vice Chairman Eduardo Gonzalez and Executive Director Carmelo Garcia, or more fortifying to the tenacity of the Reform majority on the HHA board, than the HUD memo I cited in my first letter on this topic.

While I certainly regard Chairman Davis as a gentleman capable of his own due diligence, some of the statements in his rebuttal gave me the impression that he may not have read or at least fully digested the contents of the March 6 HUD memo. In the interest of clarifying my and the rest of the board majority’s point of view, I would like to take the opportunity to draw Chairman Davis’ attention to a few other excerpts from the HUD review in addition to the ones I highlighted last week:

n  “Please note, if the contract for General Legal Services is to be funded in whole or in part using HUD funds, the HHA is not exempt from the HUD procurement requirements.”
n  Serial re-issuance of the RFP
Although PHAs (Public Housing Authorities) may amend or cancel RFPs when otherwise considered to be in the best interest of the PHA, information should have been provided listing what amendments should have required a cancellation of the RFP. Multiple changes to a RFP may (be) construed as a lack of confidence in the Authority’s procurement process. Furthermore, issuance of the last amendment within 10 calendar days from the RFP due date raises a concern whether the time period was sufficient to achieve full, open and effective competition.”
n  “RFP’s Scope of Services – Respondents were invited to define which of the services would be included in the flat fee and which could be seen as an extraordinary service for which the respondent could charge a separate hourly fee. This is problematic for many reasons, not the least of which is that it makes evaluation of dissimilar proposals difficult. The RFP should have excluded extraordinary litigation for which the retained counsel will receive extra compensation based on an hourly rate. This is necessary because a non-competitive award for an attorney on retainer violates the requirements of full and open competition.”
n  “The RFP reveals that the contract price will be an evaluation factor for which a specific number of points will be awarded. In fact, as much as 25 points out of a possible 100 (or a 25% weight) will be awarded based only on the acceptability of the ‘…proposed fee and other charges.’ However, nowhere in the RFP is it revealed that the HHA has already set a budget for such services at an annual amount not to exceed $50,000.” Hence, the proposals that contained a flat contract fee that exceeded $50,000 automatically received a zero for that criterion, allowing the respondent to achieve only a maximum rating of 75 at best, and ultimately ensuring that the respondent had priced itself out of competition. The HHA should have disclosed its budget cap in the RFP.”
n  “It appears that the HHA prepared an evaluation report to document the ranking of the proposals by technical merit, using point scores or similar methodology, as is required by HUD-procurement rules. Similarly, a written narrative accompanied the scores, detailing the strengths, weaknesses and deficiencies of each proposal. However, factors not specified in the RFP should not have been considered.”
n  “Price in proposals were downwardly negotiated
Our review revealed that evaluations were based on proposals that HHA negotiated after initial offers were made; presumably after it was revealed to respondents that the HHA had in fact only budged $50,000 for this purpose… Negotiations in a competitive acquisition should occur in post-proposal time period; that is, after the establishment of a competitive range.”
n  “Given the information we have been provided and the questions the HHA’s procurement process raises, we find the recent award of the contract for general legal services to be legally flawed.”

With HUD stopping just short of openly accusing our Executive Director and General Counsel of colluding to steer a contract, I trust that Chairman Davis can be fair-minded enough to transcend the vitriol of his initial rebuttal and come to understand the very valid and well-founded concerns of those of us who feel that the HHA’s integrity has been tarnished by its recent dealings involving Mr. Daglian, and it is in our agency’s best interest for all of us to move forward. The fact that I have voted for Mr. Daglian’s renewal in the past in no way mandates that I must do so in the future. Our general counsel terms are one year, not lifetime appointments, and Mr. Davis appears to have forgotten a number of discussions he and I had last year in which I itemized for him in great detail specific issues that had led me to feel it was time to change attorneys, and Mr. Davis at the time claimed to have had his own doubts about Mr. Daglian as well.

Chairman Davis raises the fact that I initially supported the concept of overhauling HHA resident facilities but have developed concerns about the direction the Vision 20/20 project has taken. Again, I would like to respectfully remind Chairman Davis of discussions in which he actively participated, when many commissioners on both sides of the political aisle began to grow concerned about the piecemeal level of information being disclosed and the way numerous fundamental elements of Director Garcia’s story kept changing dramatically. I remain firmly resolved that neither the HHA nor the City of Hoboken should sign off on anything about which they do not feel fully informed or have reason to suspect the facts being presented are slippery to say the least. Certainly, at the time I tentatively supported an expansion-free redevelopment plan, I had no idea that at least six of our buildings were about to go onto the fire inspector’s watch list for lack of fireproofing and backup power, that numerous questions were about to arise regarding appropriate deployment of FEMA funds to raise our buildings’ backup generators, or that, amid all the critical public-safety shortfalls in the HHA, our Executive Director was about to announce his candidacy for state Assembly, yet another part-time job on top of his Board of Education commissionership, Hudson County Freeholder aide position and well-compensated, supposedly full-time position at the HHA.

What I find truly ironic is that while Chairman Davis criticizes me for moving to Pennsylvania, I could make a plausible argument that even volunteering from 200 miles away, I have been dedicating more time and attention to the Hoboken Housing Authority than the well-paid Executive Director, who is too busy running for office and jet-setting to “conferences” on our dime to ensure the safety of our residents through proper fire precautions.


Jake Stuiver
Hoboken Housing Authority
Board of Commissioners

Related: The Rob Davis letter as it originally appeared on Hoboken Patch: