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CONTINENTAL COUNTRY CLUB, INC., an Arizona Non-Profit C

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CONTINENTAL COUNTRY CLUB, INC., an Arizona Non-Profit C 1 SCOTT B. COHEN, SBA #014377 PATRICK A. CLISHAM, SBA #023154 2 BRADLEY D. PACK, SBA #023973 ENGELMAN BERGER, P.C. 3 2800 NORTH CENTRAL AVENUE, SUITE 1200 PHOENIX, ARIZONA 85004 _____________ 4 Ph: (602) 271-9090 Fax: (602) 222-4999 5 Email: [email protected] Email: [email protected] Email: [email protected] 6 _____________ 7 Proposed Counsel for Debtor and Debtor in Possession Continental Country Club, Inc., an Arizona Non-profit 8 corporation 9 IN THE UNITED STATES BANKRUPTCY COURT 10 FOR THE DISTRICT OF ARIZONA 11 In re: Chapter 11 Proceeding 12 CONTINENTAL COUNTRY CLUB, Case No. 3:21-bk-00956-EPB INC., an Arizona Non-profit corporation, 13 EIN 86-0414438 14 Debtor. 15 16 17 DECLARATION OF JON HELD IN SUPPORT OF CHAPTER 11 BANKRUPTCY PETITION 18 19 I, Jon Held, hereby declare under penalty of perjury that the following statements are 20 true and correct to the best of my information, knowledge and belief: 21 1. I am the President of Continental Country Club, Inc., the debtor and debtor-in- 22 possession in the above reorganization case (the “Association”) and I am its designated debtor 23 representative in this chapter 11 proceeding. As such I have the authority to make this 24 declaration on behalf of the Association. I am thoroughly familiar with all aspects and 25 operations of the Association and am familiar with its business affairs, assets and liabilities, 26 and its books and records. 27 2. I submit this Declaration in support of the Association’s chapter 11 bankruptcy {0006302.0001/01188627.DOC / 3} Case 3:21-bk-00956-EPB Doc 15 Filed 02/10/21 Entered 02/10/21 16:06:15 Desc Main Document Page 1 of 9 1 petition and a series of related motions filed or to be filed by the Association in connection 2 with its bankruptcy proceedings (the “Motions”). Unless required otherwise by the context, all 3 capitalized terms used herein shall have the same meaning ascribed to them in the Motions. 4 A. My Professional Background 5 3. I am an experienced business executive having retired in 2016 after working in 6 executive and management positions in the newspaper publishing industry for more than 20 7 years, including having served as Chief Financial Officer for the Arizona Republic and as 8 Senior Vice President of Finance and Business planning for the entire newspaper division 9 (over 100 newspapers and USA Today) of its parent company Gannet Publishing prior to 10 retirement with responsibility for finance and all printing and distribution across the country. I 11 graduated from University of Wisconsin – Whitewater majoring in accounting. I was a P.C. , 12 Certified Public Accountant until the time of my retirement. 13 4. I have been a homeowner and member of the Association since 2005. ERGER B 14 5. In November of 2019, I was elected as President of the Association and have 15 since been actively involved in the operations and management of the Association. Phoenix, Arizona 85004 Arizona Phoenix, orth Central Avenue, Suite 1200 Suite Avenue, Central orth N 16 NGELMAN B. Background of the Association 0 E 280 17 6. The Association is a non-profit Arizona corporation with its principal place of 18 business in Flagstaff, Arizona. 19 7. The Association was formed in 1972 to own and operate the Continental 20 Country Club in Flagstaff, Arizona (the “Club”) for the use and enjoyment of its homeowner 21 members and the broader general public. 22 8. The Association operates as a full-service country club with golf, tennis, 23 pickleball, swimming, fitness, clubhouse, and dining amenities for the benefit of its members, 24 who are primarily comprised of homeowners in the Association’s residential developments. 25 9. The Association was first developed by the late Charles Keating and his 26 affiliated development companies in the early 1970s as part of the broader Continental 27 development in Flagstaff, Arizona. {0006302.0001/01188627.DOC / 3} 2 Case 3:21-bk-00956-EPB Doc 15 Filed 02/10/21 Entered 02/10/21 16:06:15 Desc Main Document Page 2 of 9 1 10. Over the course of the past fifty years, the Association has been operated as a 2 non-profit corporation supported by annual assessments paid by its 2,395 homeowner 3 members and the business revenues generated through the ongoing operation of the Club 4 facilities. 5 11. Under the currently applicable Amended and Unified Declaration of Restrictions 6 (“CC&Rs”) each member is required to pay the Association regular annual assessments and 7 special assessments as authorized under the CC&Rs and approved by the members. 8 12. Based on current assessment levels, the Association generates approximately 9 $1.2 million in assessment revenues annually. The Association also generates approximately 10 $1.7 million in income from business operations annually. 11 C. Events Leading to Bankruptcy P.C. , 12 Lake Elaine Litigation and Liabilities 13 13. The Association is a non-profit homeowners association responsible for ERGER B 14 enforcing the deed restrictions for the Continental Country Club development in Flagstaff, 15 Arizona (the “Development”), which includes numerous residential subdivisions and a total of Phoenix, Arizona 85004 Arizona Phoenix, orth Central Avenue, Suite 1200 Suite Avenue, Central orth N 16 NGELMAN over 2,395 single family and multi-family homes. 0 E 280 17 14. One of the subdivisions includes a man-made body of water known as “Lake 18 Elaine.” 19 15. In 1987, the Plaintiffs, who owned homes near Lake Elaine, filed a lawsuit in 20 Coconino Superior Court (“Superior Court”) against the successors to the developer, alleging 21 that the developer misrepresented the quality of the construction and maintenance of Lake 22 Elaine. Plaintiffs also sued the Association, alleging that it is responsible for maintaining Lake 23 Elaine and that it failed to do so. 24 16. The Class Action was never brought to trial. Instead, the parties reached a 25 settlement, which was incorporated into a settlement agreement and stipulated judgment 26 entered between and among the Association and several other parties in 1990 (the “Settlement 27 Agreement”). {0006302.0001/01188627.DOC / 3} 3 Case 3:21-bk-00956-EPB Doc 15 Filed 02/10/21 Entered 02/10/21 16:06:15 Desc Main Document Page 3 of 9 1 17. Under the Settlement Agreement, the Association agreed to reconstruct and 2 restore Lake Elaine in accordance with a plan developed by outside consultants (the 3 “Consultants Plan”). 4 18. The reconstruction and restoration work was completed in 1994. 5 19. In 2017, however, Plaintiffs sought to hold the Association in contempt for 6 allegedly violating the terms of the Settlement Agreement. They allege that the Consultants 7 Plan imposed a perpetual obligation on the Association to “maintain” Lake Elaine, and that 8 the Association failed to do so by, among things, failing to maintain a water level at an 9 elevation of 6,845 feet above sea level. 10 20. Conditions have changed significantly since the Settlement Agreement was 11 entered. Operation of Lake Elaine in conformity with the Consultants Plan is no longer P.C. , 12 physically possible or economically feasible. 13 21. Notwithstanding the change in conditions, Plaintiffs have shown no desire to ERGER B 14 cooperate with the Association to modify the Settlement Agreement so that maintenance of 15 Lake Elaine is feasible in light of current conditions. They have instead sought crushing Phoenix, Arizona 85004 Arizona Phoenix, orth Central Avenue, Suite 1200 Suite Avenue, Central orth N 16 NGELMAN sanctions that the Association has no ability to pay. 0 E 280 17 22. On October 30, 2020, the Superior Court, which has been overseeing litigation 18 between the Association and a class of Lake Elaine lakeside homeowners announced it would 19 be holding the Association in contempt and requiring it to repair and fill Lake Elaine to a level 20 of 6,845 feet as provided in the Settlement Agreement. In addition, the Superior Court 21 announced its intention to impose sanctions against the Association of $700 per day for each 22 day that the Association was not actively refilling Lake Elaine and $500 per day for each day 23 that Lake Elaine was actively being refilled until the minimum surface elevation was achieved. 24 23. The Superior Court’s preliminary ruling had several significant practical and 25 financial implications for the Association including, among other things: 26 a. Lake Elaine suffers from engineering and design problems that make it 27 technically impossible to comply with the terms of the Settlement Agreement, as interpreted {0006302.0001/01188627.DOC / 3} 4 Case 3:21-bk-00956-EPB Doc 15 Filed 02/10/21 Entered 02/10/21 16:06:15 Desc Main Document Page 4 of 9 1 by the Superior Court, and otherwise satisfy the requirements of the Superior Court’s recent 2 directives; 3 b. Because Lake Elaine is a manmade lake with an artificial liner, significant 4 repairs and re-engineering of the lake would be required before the Association could begin to 5 attempt to fill it. These repairs could take up to two years to complete and their costs are 6 estimated to range between $1.5 million and $4.0 million; 7 c. Once repairs are completed and refilling is undertaken, it could take up to 8 six months to refill the lake and require at least 115 million gallons of water, the cost of which 9 (based on current rates) will be approximately $200,000; and 10 d. Based on the foregoing timeline, the fine schedule announced by the 11 Superior Court could result in fines for the entire period of repairing and refilling Lake Elaine P.C.
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