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September News Bulletin

Developer files paper to fire
Colonos chairman, manager

Lengthy communication attacks performance;
Early public responses do not support firings

By Staff
Puerto Aventuras developer and Arq. Roman Rivera Torres has petitioned the Colonos board to convene an Assembly to consider firing Colonos board Chairman Jorge Kaufer and General Manager Armando Rincon for alleged negligence of duty on multiple fronts.

Rivera said in his petition that he was “obligated” as Colonos Vigilance Committee (VC) president to initiate the request. The two other VC panel members, Timothy Howard, longtime owner here, semi-retired CFO and author in the USA, and Carlos Suarez, resident and administrator of multiple local condo complexes, did not co-sign the petition.

In that case, the request may be a non-starter if, as Colonos rules and logic appear to dictate, at least two signatures are required for a VC communication to move forward.  Note Article 34 (unedited) governing activities of the Vigilance Committee:

ARTICLE 34.- The communications from the Vigilance Committee must be signed by its President and any by one other member at least. In case of prolonged absence of the President, the signature of any two of the Committee members will suffice.

“I was not a signatory to this letter, nor did I know it was coming,” Howard said when contacted last weekend during a stay in London. Howard said Suarez also called him after receiving the letter to assess his position. “I told him, no, I did not agree with Roman’s request because I didn’t think that was the right way for us to resolve the impasse between Roman and Jorge.”

The long-simmering standoff between community leaders Rivera and Kaufer peaked last February when Rivera sought, to no avail, to have the Colonos deny main-gate entry to clients of several commercial boating entities that were and are in a fee disagreement with the marina in which Rivera has financial interest.

Subsequently, Rivera informed the board he would, as owner of the gate property, retake control of the gate operations and Kaufer responded by withholding about $200,000 USD of the public’s money that had been appropriated for gate improvements that were scheduled to be completed by now.

Kaufer stated in an earlier letter distributed to residents and published in total in the Pelican Free Press on August 17 that he and some other board members believe the fee dispute between the marina and several of its commercial boating tenants is a business matter between them that should not involve Colonos intervention.

Suarez told the Pelican several days after Rivera’s letter was disseminated that he received many calls from property owners in support of Kaufer and Rincon. The consensus, he said, is that nobody should resign and that Rivera and Kaufer need to reconcile their differences and resume working as they have in the past on behalf of all the people.

“One common opinion from the callers is that the community needs and wants administrative balance,” Suarez added. “We have to have balance. Do property owners just give money (over $1 million USD Colonos budget annually) with no say on how it is spent?”

There have been some earlier muted calls for Rivera to step down by critics who see his dual role as PA development Trustee and VC president as a conflict of interest. But Suarez notes the community has greatly improved despite occasional disagreements under the balanced leadership of Rivera, Kaufer, the Colonos board and Rincon. The board is planning to meet to discuss the petition.

Rivera explains his case for seeking the resignations of Kaufer and Rincon in the following, unedited communication:

“ASSOCIATION OF SETTLERS, OWNERS  AND TRUSTEES OF PUERTO AVENTURAS A.C. SR. JORGE KAUFER, PRESIDENT ARMANDO RINCÓN, ADMINISTRATOR

Based on Fractions II and III of Article 33 of the Bylaws of the Association of Settlers, Owners and Trustees of Puerto Aventuras, A.C. (the “Association”), and derived from the events that have occurred during the last two years under the coordination of The Board of Directors, and in view of the impossibility on the part of the Supervisory Committee to avoid the unilateral actions of the President over the Committee and against the interests of the “Association”, I am obligated, as the Supervisory Committee Representative, to request the resignation of Mr. Jorge Kaufer and Mr. Armando Rincón to their respective positions as President of the Board of Directors and Administrator of the Association, for which, and in accordance with the provisions of Fraction II of the aforementioned Article 33 of the Bylaws of the “Association”, I hereby formally request that they call to convene the corresponding Assembly of Associates, in order to present, discuss and, if appropriate, to approve the requested motion.

 

The foregoing, based on the following background and considerations of fact and law:

  1. – BACKGROUND:

Puerto Aventuras was conceived as a private and safe Residential-Touristic Development controlled by the Developer and its own Community. Under this scheme, the Developer celebrated an agreement with the Municipal and State Authorities not to municipalize, committing in areas of surveillance, operation, maintenance and security. This decision was based on the fact that the Municipality, due to the growth of Playa del Carmen, could not meet the needs of Puerto Aventuras.

The Developer promoted the figure of a Settlers Association to be in charge of controlling and operating the Development, working hand in hand with the Developer. Under this formula, the figure of the Developer would be that of the person in charge of carrying out the construction and infrastructure works of Puerto Aventuras, while the “Association” (in substitution of the Municipality) would be in charge of controlling, maintaining and operating the Development. The only person responsible before the authorities is the Developer, who granted the “Association” certain powers to operate aspects of common interest of its residents, subject to compliance with the Association’s own Bylaws and regulations, and for the surveillance of its associates.

For the accomplishment of the functions of the “Association”, its associates provide it with a budget superior to 18 million pesos annually (not including extraordinary installments). For a correct evaluation of its performance it is important to be clear that the “Association” is not responsible and is not in charge of the basic services of Puerto Aventuras such as the Drinking Water Supply, Drainage and Wastewater Treatment, Electric Power, Telephony, Fiber Optics and others. The “Association” does not take care either of replacing our beaches, remodeling our Marina Center or our façade towards the federal highway, and is neither in charge of Governmental, Union, or Village Leadership Relations.

Having clarified that these activities are not part or responsibility of the “Association”, we will be able to analyze its performance in the priority functions assigned to it and in which it has not only shown poor performance in its compliance, but also has acted against the fundamental objectives of Puerto Aventuras and the interests of its Community.

  1. – STATEMENT OF FACTS RELATING TO THE PERFORMANCE OF THE CURRENT BOARD OF DIRECTORS AND ADMINISTRATOR OF THE ASSOCIATION
  2. Security and Control of Puerto Aventuras:

As it is indicated in the Bylaws and regulations of the “Association”, it is a priority responsibility of the “Association” to properly manage the security of Puerto Aventuras as well as the control of its access. Despite the aforementioned responsibility, its current Board of Directors and Administration have violated Development Security and propitiated impunity for irregular commercial operators within the Development.

Understanding Security is a priority issue for Puerto Aventuras; the “Association” was assigned with the obligation and was granted sufficient powers to manage it properly. Consequently, the associates contribute for Security purposes only with a budget of more than $7 million pesos, as well as assets in land and buildings (Access Gate) for the successful achievement of this objective; however the result presented by the current Board of Directors and the Administrator is unacceptable. Indeed, in theory the Security System should be fully operational and efficient, but contrary to that it turns out highly inefficient and vulnerable due to lack of attention and rigor of normativity observation by the Board of Directors. There are no preventive strategies, its performance is limited to submit written reports and charts describing what happened yesterday, without giving solutions to avoid repetition of infractions or illicit acts, propitiating impunity that now extends with even more frequency. All this to the detriment of the Development and welfare of the Community.

In addition, the obligation assigned to the “Association” to take charge of the Security of Puerto Aventuras included (based on the fact it would have the management of the personnel in charge of monitoring and controlling) three basic areas defined as:

  1. a) Access Control to the Development, avoiding passage of unauthorized persons to assure security within the development in accordance with the provisions of Article 18 of the General Regulation of the “Association”.

Our Beaches and Coves continue to be public with free access to people from outside the Development who access them crossing through private property. The proper management of this topic is of vital importance under Mexican law and the lack of public accesses to the beach, as an inadequate management, can lead us to incur in irreversible cases like that of Akumal

Currently, workers with work identification access without any control accompanied by relatives and friends, with liberty and outside of defined time schedules, areas and labor dates. Those workers who have been disqualified for excessive use of alcohol, noise and misbehavior, continue to access and remain in the facilities outside permitted times. Access to vehicles that provide unauthorized or even undesired services is also permitted. In none of these cases are misused access cards or identifications canceled.

  1. b) Compliance with the Bylaws and the General Regulation (Coexistence) of the Association:

The promotion and enforcement of the Bylaws and regulations of the “Association” as guiding and applicable instruments within Puerto Aventuras, is the obligation and authority of the “Association” through its Board of Directors and the security company contracted for it; however, compliance with this obligation and authority has been ignored by the Board of Directors, allowing infractions regarding operating hours, noise levels, vehicle traffic, parking lots, etc. Known example is “HooHaa”, business that does not pay fees to the “Association”, creates expenses to it and despite innumerable letters addressed to the “Association”, there has been no action whatsoever to stop the operation or to cancel badges of access to workers and managers.

  1. c) Compliance with the Construction Regulations:

Compliance with the Construction Regulations is an obligation of the “Association”, as it is the one who should control through the security company and on the basis of which it could deny access to workers in infringing works. The Board of Directors has ignored this obligation, and today there are innumerable cases of constructions that contravene land uses, densities and construction restrictions in general.

  1. Defense of the concept and operation of Puerto Aventuras as “Private Development”:

The actions of the current President of the “Association” jeopardize the continuity of Puerto Aventuras as private development.

Ensuring the concept of “Private Development” begins with the proper management of the access to Puerto Aventuras in order to achieve the goal consistent on that the infrastructure of basic services and recreation are for the enjoyment and benefit of its owners, residents and authorized visitors. The policy established unilaterally by the current President of the Board of Directors, that “any person who presents himself at our door with identification, will have access to Puerto Aventuras”, contravenes our objectives and priorities, violating our security, affecting the Associates patrimony, favoring alien offenders to the detriment of the benefit of the Community.

Specific case, that of a company alien to the Development that without authorization performs activities for its own benefit, using without permission from or making payments of infrastructure use to, both the Development and an affected Associate, who refuses to stop operation or abandon Development. The Board of Directors denies support to its affected Associate and far from intervening as established policies mandate, suggests that Associate resort to superior authorities outside Puerto Aventuras.

Faced with this position of the Board of Directors, the Associate, affected in his interests, not being able to rely on the security personnel he pays, is forced to resort to other authorities to take care of his interests, and dissociates himself from the Association with the consequent cancellation of the payment of quotas.

Thus, the actions of the Board of Directors and specifically the President’s, do not meet the objectives of the Development as a private entity, they fault the obligations of the “Association” by forcing the Associates to resort to external authorities making them care for themselves, although they pay the internal security. Far from acting in support of its Associates, it evades responsibilities and favors third-party offenders, encouraging the separation of Associates who set up security gates and fences, hire independent security companies from the Development and ultimately creating power wars within the multiples authorities.

In addition, the President, in a unilateral decision, refused to receive Phase 4 to integrate it into the Master Plan. This despite the Developer’s offer to cover any shortfall that might exist between the collection of fees and the operating cost. The refusal forced the Developer to disassociate Phase 4 from the Master Plan by hiring an autonomous private security and consequently disconnecting from the Association.

On another note, having been a petition of the Community to expand the Access Gate, the Developer agreed to deliver on “loan” land of his property, and provided budget to the project. The topic was approved by the General Assembly and the President, under a unilateral decision, canceled it subject to a new confirmation by the same Assembly that had authorized it.

Likewise, a modification to the Master Plan was approved in the Assembly by changing the use of the second 9 holes of the Golf Course (in the process of being executed) by a green area called “Central Park” including recreation concepts proposed by the Community, amongst them a Bike Trail, Pedestrian Walkway, Pet Park, Outdoor Gymnasium and other options of general use for the population. However, following the policy established by the President of free access to the Development and considering that there is a population of 18,000 inhabitants on the other side of the highway, the Developer temporarily suspended the project until control is reestablished according to the private objectives of the Development.

In view of the above, it is clear that the President of the Board of Directors does not have the experience or the capacity to understand the benefits of an integral and private development for a community united under the leadership of the “Association” in his charge, so the fact to sustain the President in his position implies running the risk of disintegrating the community of Puerto Aventuras with the damages that this entails.

  1. Authority, Faculties, Rights and Obligations of the Board of Directors of the Supervisory Committee and the Board of Directors of the Association

The maximum authority for any decision and action related to Puerto Aventuras before the governmental authorities is the Developer as responsible for the Development. The Developer has granted the Community, through the “Association”, broad faculties for the management of Puerto Aventuras subject to a joint action with the Developer, considering the purposes of the “Association” and the fulfillment of its Bylaws and regulations.

The Community, through its “Association”, empowers a board of directors to carry out the daily operation of the Development based on the guidelines approved at the Assemblies of Associates.

The Board of Directors is composed of a President, a Secretary, a Treasurer, Members and Committee Coordinators for cultural, sports and other activities.This Board of Directors hires an Administrator of the “Association” and the administrative and technical personnel necessary to fulfill its purpose.

In addition, a Supervisory Committee is in charge of supervising the management of the Board of Directors. This Committee has lost its effectiveness through the arbitrary management of the President, who takes decisions contrary to the objectives of the Development and to the detriment of its community, as detailed below:

III. – STATUTORY AND REGULATORY VIOLATIONS IN WHICH THE PRESIDENT OF THE BOARD OF DIRECTORS AND THE ADMINISTRATOR OF THE ASSOCIATION HAVE INCURRED:

  1. a) Improper access control to the Development by allowing unauthorized persons to enter, which constitutes a violation of Article 18 of the General Regulations of the Association;
  2. b) Lack of representation and defense of the Associates before the federal, state and municipal authorities, as well as before all kinds of private institutions, individuals or corporations, in all matters related to their properties and rights within the Puerto Aventuras Residential-Touristic Development. The foregoing, in contravention of one of the purposes that constitute the object of the “Association”, foreseen in subsection “d)” of Article 6 of the Statutes;
  3. c) Lack of Intervention to promote good relations between all the inhabitants of Puerto Aventuras and for these to be observed with honesty, good faith and compliance with the Bylaws and Regulations of the “Association”. The foregoing, in contravention of another of the purposes that constitute the object of the “Association”, foreseen in subsection “e)” of Article 6 of the Statutes;
  4. d) Lack of monitoring of the Development’s urbanization, in a way that is in accordance with the Master Plan, with the Construction Regulation of the Development, authorized land uses and prioritary interests of the majority of the settlers, which is a violation of another purpose that constitutes the object of the “Association”, foreseen in subsection “c)” of Article 6 of the Statutes.

For the sake of clarity of the above, the statutory and regulatory precepts are transcribed in quotation, namely:

BYLAWS OF THE ASSOCIATION

CHAPTER IV OF THE OBJECT OF THE ASSOCIATION

“ARTICLE 6. – The purpose of the Association is to group the Settlers, Owners, Trustees and Promissory Trustees of properties located in the Puerto Aventuras Touristic Development, without distinction of race, nationality or religion, for the following purposes”:

  1. Attend, procure and, where appropriate, provide to its associates, directly or indirectly, any kind of advice concerning the property of the Associate within the Development, as well as to provide, where appropriate, services for the improvement of said Touristic Development, including, if possible the general and public services provided by the Government of the State of Quintana Roo and the Municipality of Cozumel or the Developer; b) Promote the improvement of facilities, equipment and works through which these public services are provided; c) To supervise the urbanization of the Development, in such a way that it is in agreement with the Master Plan, with the Regulation of Construction of the own Development and authorized land uses and of prioritary interests of the majority of the settlers; d) To represent the Associates, both individually and collectively, before the federal, state or municipal authorities, as well as before all kinds of private institutions, individuals or corporations, in all that is related to their property or rights within the Touristic Development of Puerto Aventuras; e) To strive by all means within its reach, to foster good relations among all the inhabitants of Puerto Aventuras and so that in them honesty and good faith can be observed; f) Encourage the development of associates’ ideas, initiatives, studies and projects, to implement those that are considered to be beneficial to the associates, the Development and the general population; g) Disseminate and develop among their associates and their families all kinds of social, cultural, educational, sports, artistic and humanitarian activities … “

GENERAL REGULATIONS OF THE ASSOCIATION

CHAPTER III

OF DEVELOPMENT SECURITY

“ARTICLE 18. – Entrance to the Development is restricted to people who are not settlers or property owners, or do not have the corresponding authorization. All entry-to-exit workers within the Development must wear bracelets (in the case of construction employees) and badges in case of employees of houses, condominiums, commercial areas or the marina. ”

In view of the foregoing, it is conclusive without a doubt that the Board of Directors of the Association has incurred in breach of its obligations and in the undue or omitted exercise of its faculties. Likewise, it has conducted itself unilaterally above the determinations of the Supervisory Committee and against the interests of the “Association” in matters of primary interest to the Community of Puerto Aventuras, so in my capacity as Chairman of the Supervisory Committee of the “Association”, I am obligated to issue, for all legal purposes, the present request for the convening of an assembly of associates of the “Association”, in order to analyze, discuss and, where appropriate, approve the removal of Mr. Jorge Kaufer and Mr. Armando Rincón from their respective positions as President of the Board of Directors and Administrator of the Association.

Without further comments, receive my respectful greetings and I remain at your disposal for any comment or clarifications.

Sincerely,

SUPERVISORY COMMITTEE OF THE ASSOCIATION OF SETTLERS, OWNERS AND TRUSTEES OF PUERTO AVENTURAS A.C.

_____________________________ ARQ. ROMÁN RIVERA TORRES PRESIDENT

 

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