60 Days. That's right, on Friday it will be 60 days since our last public meeting that had anything to do with the wall or entryway project at all, and only one pro-forma meeting in between, which covered nothing but association insurance premium renewals. Ironically, the insurance meeting was handled the way every part of the wall project should be: in a public meeting, with deliberation between board members, a chance for public comment, and a proper vote.
This large gap in wall-related information is why I felt compelled to submit a formal records request to get access to the documents that we're entitled to see as homeowners under Florida law. I've still got hundreds of pages of documents I'm in the process of reviewing. It will take some time to get through them all, and I don't want to give a hasty analysis.
Today's weekly update provided clarity on tomorrow's meeting agenda. Due to the hybrid approach, tomorrow's agenda is a separate, $2,500 item to retain a specialized foam engineering firm for site-specific drawings of the front entrance.
The board's own description is worth quoting directly: "The HOA retained its own engineer to develop the overall land and layout schematics for the project, identify utilities and other areas of concern around the construction site, and perform inspections at critical stages of construction before payments are released. Royal Foam also works with an engineering firm that provides the detailed structural engineering specific to its product." That first description, inspections at critical stages, tied to payments, is Tidwell Engineering’s role, the contract that the majority of this post will cover.
I'm eager to hear more about how these engineering firms will work together, and how they'll help assure the neighborhood that the project construction is of the highest standard of workmanship at tomorrow’s meeting.
The Tidwell Engineering contract
While I don't have the contract for the engineer recommended by Royal Foam mentioned in today's update, I do want to provide a detailed analysis of the Tidwell contract surfaced by my records request, compared to what we've been told in open board meetings, and provide questions to the board that need to be addressed before that September 28 meeting.
In reading these documents and comparing them to our previous vendors, the question that jumped off the page was: "Is the board trying to find savings by shifting risk that should sit with insured, bonded vendors onto homeowners instead?" As the comparison below shows, the contract terms leave little protection for the neighborhood when compared to what was promised by the board in a meeting back in July, and especially when compared to the terms of the previous vendor. Luckily, there's still time to fix this, and I hope the board is doing the same comparison I've done, to make sure our neighborhood isn't left holding the bag again if we experience defects in workmanship or materials on the wall and entryway project. As we all know too well, it may be years before a defect in EPS foam installation becomes detectable — which is exactly why the terms need to be right this time.
What the board told us this engineer would do
The justification for hiring Tidwell Engineering, laid out at the July 15 meeting, was specific and reassuring. The board was moving away from MEEK Companies, the outside owner's representative the prior board had retained, and toward a single engineer who would serve a similar watchdog function:
"The engineer will draft the RFP. And we also have him quoting coming out to certify all the pay applications, to check to make sure that the specs are meeting code for wind standards, meeting royal foam's products. And so he'll essentially check off on everyone those pay apps to make sure that's getting done to spec... We've interviewed 3 civil engineers. We're going to hire one engineer that's going to generate the RFP, that's going to check on the wall at certain time points before we issue any payment to make sure it's being done properly... putting an engineer in the middle of it, that middle layer... But in the event that let's say 10 years from now, you know, something comes back and contractor defect or product defect or whatnot, there's some onus on the engineer and his, you know, insurance as far as saying, hey, you certified this, that it got done to royal foam spec. You certified it that it got done to code. So who's at fault? Right? It's not going to come back onto the HOA or community. So there's the offload on that as far as protecting the community."
That is a three-part promise:
Ongoing inspection tied to each payment
A defect-catching function
If something surfaces years later, it will be the engineer's own insurance absorbing the consequence instead of the homeowners
The board isn't backing away from that framing. Today's weekly update describes Tidwell's role in almost identical terms: the HOA's own engineer, retained to "develop the overall land and layout schematics for the project, identify utilities and other areas of concern around the construction site, and perform inspections at critical stages of construction before payments are released." Inspections tied to payments, described by the board itself, is exactly the promise above. Which makes it worth asking, now more than ever, whether the contract the board signed delivers what they promised.
What the signed contract actually says
The contract itself, obtained September 14, tells a different story on every one of those three points:
Inspection frequency: the scope of work allows for "two (2) construction site visits to review pay applications and observe the progress of the work." Additional visits are available, but billed separately, at "$1,000 to $1,800" each.
The limited scope of the engineering inspections: "Construction phase services include periodic site visits to observe whether the work generally conforms to the Royal Foam design requirements and the Contract Documents. These site visits are intended solely for general observation and do not constitute quality control, quality assurance, or continuous inspection." A separate clause, listing services not included in the fee, repeats that "the owner's representative is not responsible for... continuous inspection, quality control, or quality assurance, or the work during construction or after construction."
Who bears the risk if a defect surfaces later? The contract's indemnification language runs one way. The association "shall, to the fullest extent permitted by law, indemnify and hold harmless" Tidwell Engineering, its officers, employees, agents, and sub-consultants, for essentially anything connected to the project — "excepting only those damages, liabilities or costs attributable to the sole negligence or willful misconduct" of the engineer. There is no reciprocal clause requiring Tidwell to indemnify the association for anything. And separately, a "Risk Allocation" clause caps Tidwell's total liability, for any claim arising from the agreement, "from any cause or causes," at "the total amount of TEC's fee" — that is, the same $14,000 to $25,000 estimate mentioned in passing at the meeting, on a total project (wall, entryway, and park elements) that, even if the new board does find savings, will have a total outlay of well over $1,000,000.
So the "offload," the "onus on the engineer and his insurance," described to the board doesn't exist in the document. If a defect is discovered after construction, the contract puts the association on the hook for Tidwell's legal costs unless Tidwell was solely at fault, and caps Tidwell's total liability at a small fraction of the project's cost.
Let's look at the terms for the prior outside professional. MEEK Companies, the owner's representative the board was replacing when it hired Tidwell, worked under an agreement titled, in its own text, "Reciprocal Indemnification" — and it reads that way. The client (the association) indemnifies MEEK for claims arising from actions taken in accordance with the contract, but the clause runs the other direction too: "The Meek Companies shall indemnify and hold harmless Payasada Estates Homeowners Association, Inc., its officers, directors, agents, insurers, employees, affiliates, and related entities against any and all claims, losses, liability damage, costs and expenses... arising out of or based upon The Meek Companies' negligent acts, errors or omissions or willful misconduct." If MEEK made a mistake, MEEK owed the association for it. Tidwell's contract has no equivalent clause, only the association's obligation to indemnify Tidwell.
MEEK's contract also required real insurance, with a real dollar figure attached, independent of whatever MEEK was being paid: "The Meek Companies shall secure and maintain during the term of this Agreement all applicable insurance coverages to include General Liability... The Commercial General Liability policy (CGL) limits shall be in the minimum amount of $1,000,000.00." Tidwell's contract contains no insurance requirement of any kind.
And where Tidwell's liability is capped at the amount of its own fee — $14,000 to $25,000, regardless of what a defect or an omission might actually cost the association to fix — MEEK's contracts contain no liability cap at all. Nothing in either document limits what MEEK could owe the association to a dollar figure, a multiple of its fee, or anything else.
Three separate terms, three separate directions: on indemnification, on insurance, and on liability, the association's new engineering contract shifts more risk onto homeowners and less onto the outside professional than the contract it replaced did.
It's a fair comparison to draw, and not just because Tidwell was hired to replace MEEK. In an earlier meeting announcing that the association was terminating MEEK's contract, the board told the community that an engineer could fill the same watchdog role for substantially less money. That's a claim about cost, not about risk allocation — but the two aren't separable. Insurance minimums, mutual indemnification, and an uncapped liability ceiling all cost a vendor something to carry, and a vendor being paid less has less of a cushion to absorb a mistake. If the switch to Tidwell was sold to homeowners as a straightforward cost saving, it's worth homeowners knowing that part of what changed was who's on the hook if something goes wrong.
Nobody appears to have reviewed it
Part of the records request surfaced only a June invoice from our HOA attorney, with very detailed line-item descriptions of what services he provided on exact dates. I requested the July invoice as well, but our new community manager confirmed in writing on September 15 that "Mr. Ronsman has told me that there are NO items for July to be billed to the association, so there will be NO invoice I can forward to you." She had already confirmed that the August invoice covers August work only, not July. There is no invoice, for any month, where legal work on the Tidwell contract would appear. Again, this is the vendor that will serve as the arbiter of whether work meets standards and whether contractors get paid. The terms of this contract, and the risk it leaves with us as homeowners, need a proper legal review. Especially since we now know the entryway will be built with EPS foam, the same class of material that failed us before, we need to make sure our neighborhood is financially protected from a repeat of faulty installation and craftsmanship.
Why a records request was necessary
Outside of the weekly narrative updates, no substantive information about proposals, design, scope, or anything else has been shared — not by email, and not on the owners portal. That's the main reason I sent a formal records request to get access to the documents we're all entitled to see, especially the ones that appear to be moving forward outside of properly noticed meetings. I was granted a meeting with our new community manager on the 10th business day after the request. She provided most, but not all, of what I requested, and spent over 90 minutes with me while I reviewed and scanned documents on my phone at the May Management office. She was great, by the way, and I think she'll be a tremendous asset to our community going forward.
The next week was spent going back and forth to get the Tidwell Engineering contract and meeting transcripts to review, and those were finally sent to me Wednesday. That's no fault of our community manager. I'm sure she was navigating feedback from all of the parties CC'd on those email requests.
Inconvenient community meetings
We once again got a meeting that barely beat out the statutory requirement for advance notice, this time by mere minutes. It went out Wednesday morning for an 11:30 a.m. Friday meeting — 48 hours and 24 minutes ahead of time, clearing the statutory minimum by less than half an hour, and scheduled in the middle of a workday, when most homeowners will be working and attendance will be a major burden. It's also the third consecutive meeting scheduled during business hours (July 20 at 4:00 p.m., September 4 at 3:30 p.m., and now this one at 11:30 a.m.). Previous boards, with very few exceptions, held community meetings in the evening when more homeowners could actually attend. Daytime meetings are not a resounding gesture toward open forums and community participation, even for a brief meeting.
Correction
An earlier post on this site stated that no board vote took place to approve the Tidwell Engineering contract.
After receiving the full meeting transcripts as part of my records request, it appears a vote did happen, at the July 20 board meeting. The previous community manager asked for "a motion to approve Tidwell Engineering." The board president added "to approve the contract." Another director seconded it. There was no discussion, and the board voted yes — on a document nobody displayed, describing terms nobody read into the record, tied to a fee only ever described as a "variance" of roughly $15,000 to $25,000 depending on how long the project ran.
My notes treated that variance as a budget allocation. When the previous community manager asked for a "motion to approve Tidwell Engineering" I didn't catch "to approve the contract" over my audio on Zoom. Since no other details or terms of the contract were shared, I missed that it was simply passed without any further explanation.
But the vote was just a show for the neighborhood. The contract itself was fully executed on July 17, three days before the board's July 20 motion to approve it.
As we've pointed out before, Florida's HOA statute is clear on this. §720.303(2)(a) provides that "a meeting of the board of directors of an association occurs whenever a quorum of the board gathers to conduct association business," and that business is supposed to happen in the open, at a properly noticed meeting. If the association was already bound to this contract on July 17, the real decision once again happened where no one could see it.
None of this should have taken a certified letter and a three-week wait to surface. The contract was executed on July 17, and the board voted to approve it, in some form, on July 20. Homeowners didn't see the actual document, the fee terms, or the risk allocation until September 14 — after a formal records request, a missed statutory deadline, and a week of follow-up emails.
Questions worth asking
Luckily, we have time before the September 28 meeting to put together questions and ask the board to make sure their efforts to cut costs do not shift any more risk to our community.
A few things the contract and the transcripts don't answer, and that homeowners deserve answers to before finalizing additional agreements with Tidwell or new agreements with contractors who respond to the RFP:
Will Tidwell be carrying a Commercial General Liability policy comparable to the $1 million minimum MEEK's contract required, given that it's now inspecting contractor work in lieu of a dedicated owner's-representative firm? If not, how would the community be made whole in the event defects surfaced years later?
What is Tidwell's experience with inspecting EPS foam and precast concrete construction projects of this scope? Are there comparable jobs where it served in a similar role that homeowners could look at, and other communities it worked with that could be contacted directly?
What references did Tidwell provide, and who on the board conducted the interviews and vetting with former clients?
Will the disclaimers plainly stating Tidwell isn't responsible for quality control or quality assurance of contractors be amended by the board before any additional work is commenced?
ABS (the previous engineering company) attended a community meeting under the previous board to answer homeowners' questions directly. Will Tidwell be doing the same?
Does Tidwell have any findings that refute any of ABS's findings? Specifically that all of the structural elements, foam components, and ornamental fixtures along the wall and entryway, including the foam rotunda structures in the park, have failed and should be demolished and replaced with a brand new structure throughout?
Now that the structural drawings and RFP are out to bid, will the board share them with the community?
What are the licensing and bonding requirements listed in the RFP Tidwell created? Will contractors carry appropriate coverage, and will our association be named as an additional insured?
Using the ten-year test the board itself raised as the standard the engineer would be held to, is someone doing a comprehensive risk analysis and insurance review to make sure that if we end up back where we are today — a failed wall due to faulty construction — the association is covered in full for repairs or replacement through the vendors' own insurance carriers?
Who is doing the reference checking, vetting, and leveling of the bids received under the new RFP (the work MEEK previously did)? If the board is doing that itself to save money, will it lay out the process it plans to use, and reassure homeowners the standard for working in our community requires well-regarded commercial contractors with substantially similar project experience in our area? Can we be assured that our standard goes beyond basic state and county licensing minimums, and that we’re hiring experts in precast concrete and EPS foam to do the work?