Wedco statement in full
This is the full timeline issued today by West End Development Corporation lawyer Wendell Hollis on the controversy between Wedco and the Bermuda Cement Company.
It should be noted that BCC lawyer Alan Dunch has disputed the final statement that BCC rejected Government's officer to buy the plant and equipment:
STATEMENT OF FACTS
THE WEST END DEVELOPMENT CORPORATION ("WEDCo") AND
THE BERMUDA CEMENT COMPANY LIMITED ("BCC")
1. At all material times the relationship between WEDCo and BCC has been one of a landlord and tenant respectively.
2. BCC has been operating a cement importation and distribution facility at Dockyard for over forty years.
3. Until the 31st of December 2005 it operated such a facility under the terms of a lease between WEDCo and BCC, which expired on the 31st of December 2005.
4. Several years before the expiration of the Lease, WEDCo began to explore its future options with regard to the current facility, at all times being extremely mindful of the importance of the cement facility to the construction industry, and at the same time mindful of the future development plans for WEDCo.
5. In order to ensure that all Bermudians had an opportunity to bid to operate the facility, WEDCo placed the operation of the facility out to tender by an RFP process in 2004.
6. The outcome of the tendering of the RFP process was such that WEDCo chose BCC as the best tenderer and proceeded to negotiate the renewal of the lease with them in good faith.
7. Not wishing to enter into a 20 year lease, WEDCo initially offered BCC a 10 year lease to commence on the 1st of January 2006, upon the expiration of its existing lease.
8. On the 14th of December 2004, at a meeting held at WEDCo's offices, attended by representatives of the BCC and chaired by Lieutenant Colonel David Burch, OBE, ED, JP, the then Chairman of WEDCo (and now the Minister of Public Safety and Housing), an in principle agreement was reached whereby WEDCo indicated a willingness to grant to BCC a lease of the new cement storage and distribution facility in the south basin of the Royal Naval Dockyard for a period of 20 years commencing from the expiration of the existing lease and therefore to commence on the 1st of January 2006. This offer was based on BCC's proposal to build a new facility, to dismantle and remove the existing plant and equipment, and to offer a proportion of the shareholding of BCC to the general public.
9. On the 27th of January 2005, in a joint press conference, held between Lieutenant Colonel Burch on behalf of WEDCo and Mr. James Butterfield on behalf of BCC, the two sides set out the essence of the agreement as follows:
1. The lease of the cement plant would be extended for a further period of two years;
2. A new plant and facility would be constructed in the South Basin using a dome storage system previously put forward by BCC;
3. Upon the commissioning of the new plant, a new lease would be entered into for a period of 20 years;
4. Upon the commissioning of the new plant, the rent would be increased to 2.5% of gross revenue or $100,000 per year, whichever was the greater.
5. Existing plant equipment would be dismantled and removed and the existing silos would be demolished and removed from the present site;
6. Once the financial requirements of the new plant had been calculated, the exact percent of shares to be offered to the Bermuda public would be negotiated, however an agreement had been reached that "the percentage of shares to be offered on the Bermuda Stock Exchange would be no less than 20% of the shares of the Company."
10. Following that joint announcement, WEDCo's attorneys and BCC's attorneys exchanged drafts of a proposed lease, together with the terms of the lease, and BCC's attorneys worked on preparing a proposal in relation to the proposed stock offering. Technical advisors to both WEDCo and BCC met to discuss the new plant and the new site. These discussions carried on until the beginning of August 2005.
11. Shortly before the Cup Match holiday in 2005, attorneys for WEDCo and attorneys for BCC met to discuss the logistics of the proposed stock offering.
12. On Wednesday the 3rd of August 2005, Mr, James Butterfield, attended the offices of WEDCo and verbally announced that it was BCC's intention not to renew the lease for the silo, and to cease operations. As a result of Mr. Butterfield's unilateral actions, WEDCo instructed its attorneys to request a formal written statement from BCC setting out their revised intentions.
13. On the 12th of August 2005, WEDCo received a formal response from Mr. James Butterfield, President of BCC, advising WEDCo that the amount of capital required for the redevelopment of the new proposed site, as well as the remediation of the current site, made the project uneconomic from a financial perspective and therefore BCC was not prepared to continue negotiations with regard to the redevelopment of the new site.
14. Mr. Butterfield went on to indicate that BCC would wish to enter into good faith negotiations to refurbish the existing plant on the existing site in return for a 20 year lease.
15. Mr. Butterfield concluded that if such a proposal was not accepted then BCC would proceed with the winding up of the Company with effect from the 31st of December 2005.
16. In such circumstances WEDCo advised that BCC had unilaterally renunciated and rescinded any agreement reached with WEDCo and therefore faced with such an ultimatum, as a matter of urgency, WEDCo proceeded to review all options for the future operation of the cement importation and distribution facility at The Dockyard to ensure an interrupted supply of cement.
17. In the meantime, representatives of the Bermuda Government and WEDCo met with representatives of CEMEX, on the world's largest producers of cement, and the present supplier of cement to BCC and the principal shareholder of BCC, so as to ensure an ongoing and uninterrupted supply of cement to Bermuda. As a result of such meetings, the Bermuda Government and WEDCo received assurances that there should be no interruption in the supply and distribution of cement to the Bermuda construction industry.
18. As a result of its meeting with CEMEX and other ongoing discussions, WEDCo was assured of an uninterrupted supply of cement to the Bermuda construction industry, and determined that should the employees of BCC, who wished to continue with the operation of the facility, there would not be any loss of employment as a result of BCC's unilateral rescission to cease operation.
19. These facts were outlined to the media, including a representative of the Royal Gazette, at a press conference held at the offices of the Bermuda Housing Corporation on the 1st of September 2005. At that time representatives of the Press were given copies of correspondence between WEDCo and BCC so that they would have a full understanding of the current situation.
20. At that time the Chairman of WEDCo, Lieutenant Colonel Burch, indicated that WEDCo had no desire to enter into the cement business, however he felt that WEDCo would be grossly negligent in its responsibilities if it did not take all steps to ensure the continued and uninterrupted supply of cement to Bermuda. He concluded his remarks by indicating that it was not WEDCo who had ended negotiations in the matter, but it was WEDCo's intention to resolve the matter.
21. Following the Press conference on the 1st of September 2005, representatives of CEMEX travelled to Bermuda and met with representatives of the Board of WEDCo during which time they made representations to both representatives of WEDCo and the Bermuda Government, that irrespective of what happened with BCC, they would ensure a continued supply of cement to Bermuda, even if that called for them supplying a ship for the purposes of acting as interim plant, should the BCC plant be made unavailable.
22. On the 12th of September 2005, communications were received from BCC through their attorneys, whereby BCC indicated that they were prepared to continue to operate the current facility in the current location, if it was to receive a renewal of the current lease for a period of 15 years on like terms and conditions.
23. On the 27th of September 2005 then Chairman of WEDCo, Lieutenant Colonel Burch, had a further Press conference, copies of which are attached hereto, wherein he indicated that the terms proposed by BCC were materially different from those agreed on the 27th of January 2005.
24. The Board of WEDCo met on the 22nd of September 2005 and considered the proposal put forward with BCC together with proposals from seven other entities. The conclusion of WEDCo's meeting was that in like surroundings the supply of cement together with the statements from BCC issued on the 3rd of August 2005 and BCC's letter of the 12th of August 2005, that they had renunciated the agreement previously agreed with WEDCo and WEDCo had decided to enter into a joint venture agreement with CEMEX to operate the plant for a period of up to two years. Concurrent with that arrangement, a request for proposals for the future operation of the facility would be pursued.
25. On the 27th of September 2005 then Chairman of WEDCo, Lieutenant Colonel Burch, had a Press conference, a copy of which is attached hereto which spelt these matters out in detail. At the Press conference, the Chairman assured the public that there would be no shortage of cement. Representatives of the Royal Gazette attended that Press conference.
26. On the 7th of October 2005 Mr. James Butterfield on behalf of BCC filed with the office of the Bermuda Ombudsman, a complaint against WEDCo.
27. On the 26th of October 2005 a meeting was held between the then Chairman of WEDCo, Lieutenant Colonel Burch, and representatives of CEMEX and Mr. James Butterfield on behalf of BCC to discuss a possible way forward for the future operation of the cement silo at The Dockyard. On behalf of CEMEX, a representative confirmed that CEMEX would prefer to move forward in conjunction with BCC in the manner in which the site is presently operated. A term of the offer was that Mr. Butterfield would withdraw his complaint to the Bermuda Ombudsman.
28. As a result of those meetings, on the 8th of November 2005, WEDCo advised BCC that they were prepared to grant to BCC a further extension of its lease for a period of one year in order to allow BCC an opportunity to prepare for consideration by WEDCo, a feasibility study for the future operation of the facility.
29. On the 9th of November 2005, Mr. Butterfield withdrew his complaint to the Ombudsman.
30. On the 10th of November 2005, BCC's attorneys wrote to WEDCo's attorneys setting out the terms of the proposal to move forward which called for a 15 year lease on the existing site with some improvements to be made as to be set out in the feasibility study. These would call for a landscaping operation to screen the current site or the possibility of demolishing the silos and moving to another site.
31. On the 18th of November 2005, WEDCo's attorneys responded to BCC's attorneys, setting out a methodology of moving forward, which would provide for a one year interim lease with BCC and CEMEX providing WEDCo with a feasibility study with 20% of BCC's shares being offered to the general public and with a new plant to be built with the operation to move to the new site.
32. On the 23rd of November 2005 a meeting was held between the attorneys of BCC and WEDCo to discuss further ways of moving forward.
33. On the 30th of November 2005 Mr. Alan Dunch on behalf of BCC, wrote to WEDCo's attorneys "I am instructed by the Board to inform you that WEDCo's offer to extend the existing lease for a further period of one year so as to allow the parties a meaningful time frame to reach a resolution of the outstanding issues, is accepted."
34. On the 1st of December 2005 a joint Press release was issued by the Chairman of WEDCo, the Minister of Works & Engineering and Mr. James Butterfield, a copy of which is attached, indicating "Following further negotiations that have been conducted between ourselves, the existing lease for the operation of the cement distribution facility at The Royal Naval Dockyard has been extended for a period of one year to expire on the 31st of December 2006. This decision is taken to allow flexibility and further negotiations to remove any anxiety within the community regarding the continued supply of cement.
We have agreed that no further public comment will be made by either party until final arrangements are concluded."
35. Shortly after the Press statement Mr. James Butterfield made a Press statement critical of WEDCo and the Government.
36. On the 8th of December 2005, WEDCo's attorneys wrote to BCC's attorneys to complain about the Press announcement made by Mr. Butterfield clearly in conflict with the arrangement reached between the parties.
37. As a result of the foregoing, WEDCo extended BCC's lease.
38. On the 9th of January 2006 Mr. Butterfield advised WEDCo that they were proceeding with their feasibility study and thereafter ongoing discussions took place between representatives of WEDCo, BCC and BCC's architects and space planners, Derek Mitchell & Associates which included the provision of prospective plans for a new facility.
39. In March of 2006 certain other individuals indicated an interest in leasing another site from WEDCo, for the purposes of the importation and supply of cement. On the 1st of March 2006 WEDCo's attorneys received a letter from BCC's attorneys complaining that consideration was being given to any such proposal.
40. On the 7th of April 2006, BCC's architects, Derek Mitchell & Associates, forwarded to WEDCo's attorneys, proposals to replace the BCC bulk storage plant at the South Basin in Dockyard, with the construction of a dome facility or alternatively four cluster silos or alternatively a refurbishment of the existing silo facility.
41. On the 27th of April 2006 WEDCo's attorneys responded to the effect that WEDCo had made it clear to BCC that they did not see a long term facility using the existing silo facilities as such silo facilities were considered to be detrimental to the overall image, appearance and ambience of the Dockyard and made further comments on their other proposals.
42. For the next year ongoing discussions took place between representatives of BCC and WEDCo, which did not involve their attorneys. Suffice it to say, that agreement was not reached prior to the 31st of December 2006, the expiration of BCC's one year extension, and as a result an informal extension was granted for a further period. These matters were handled privately between representatives of WEDCo and BCC.
43. Up until the latter part of 2006 Mr. Lloyd Telford held the position of Chief Executive Officer of WEDCo and was responsible for negotiations and discussions on behalf of WEDCo with BCC.
44. After Mr. Andrew Dias assumed the position of Acting Chief Executive Officer of WEDCo upon the departure of Mr. Telford, he determined to review the six previously agreed points and to ensure that WEDCo had, in principle, agreement with BCC. To this end he met with Mr. James Butterfield, President of BCC, on a number of occasions and as a result of such meetings was satisfied that at that time BCC intended to proceed to conclude a final agreement with WEDCo on the basis of the six fundamental points. In furtherance of these discussions, WEDCo provided BCC with repeated draft leases, all of which contained the six points.
45. BCC responded to such drafts by suggesting changes to the wording of various clauses but not disagreeing to the essential business terms set out in the six points.
46. Further meetings were held between Mr. Dias and Mr. Butterfield in June and July of 2007 where changes to the agreement were requested and discussed and agreed.
47. At the end of August 2007 WEDCo presented BCC with a final draft to be reviewed and signed by BCC on or before the 30th day of September 2007.
48. On the 28th day of September 2007, only 2 days before the expiration of the 30 day period, Mr. Butterfield contacted Mr. Dias and requested an extension for a further period of 60 days from the deadline of the 30th day of September 2007 until the 30th of November 2007, to allow existing shareholders including the Butterfield family, the opportunity to sell their shares in the Company to other existing shareholders, who were prepared into the terms and conditions of the lease presented in August.
49. WEDCo once again, in good faith, did agree to grant such an extension but required letters from the proposed purchasers and remaining shareholders that upon completion of the share transaction they would sign the contract.
50. WEDCo did receive such assurances in writing from the prospective purchaser.
51. On 13th day of November 2007, after affording the extension to BCC, James Butterfield on behalf of BCC, advised WEDCo that the current shareholders were no longer prepared to sell their shares, and BCC was not prepared to sign the lease with which they had been presented in August. Mr. Butterfield indicated that BCC was not prepared to move to a new site, and was not prepared to invest in further capital to build the new plant, as had been previously agreed.
52. In light of the impending expiration of the extended lease terms afforded to WEDCo, WEDCo advised BCC that they expected the site to be turned over to WEDCo at the expiration of the extended term.
53. In the foregoing, and for the record, WEDCo never terminated BCC's lease.
54. The initial lease of 20 years expired on the 31st of December 2005. At the request of BCC, two extensions were granted up until the 31st of December 2007.
55. These extensions were granted by WEDCo in good faith on the basis of the assurances given by BCC on the 27th of January 2005 and subsequently as more particularly set out above.
56. In anticipation of the expiration of the extended lease, several discussions took place between Mr. Dias and Mr. Butterfield.
57. On the 21st of November 2007, a meeting was held at the offices of WEDCo's attorneys to discuss the logistics of a handover of the facility, including the possible acquisition of the plant and equipment and the remaining cement existing in the silo on the 31st of December 2007.
58. At that meeting it was stressed that the relationship between WEDCo and BCC was one of landlord and tenant, and that it was agreed that it was appropriate and proper for such discussions to take place. The representatives of BCC attending included BCC's attorneys and the meeting ended with Mr. Butterfield agreeing to provide to Mr. Dias an estimate of the costs of the plant and equipment. The next day, on the 22nd of November 2007, Mr. Butterfield had several discussions during which he informed Mr. Dias that the cost of the plant and equipment would be between $225,000 and $250,000.
59. Later that day Mr. Butterfield called Mr. Dias indicating that he did not intend to take any further steps to sell the plant and equipment as he expected the lease back following the general election scheduled for the 18th of December 2007.
60. On Friday the 23rd of November 2007, BCC's attorneys contacted WEDCo's attorneys to enquire as to whether or not WEDCo would consider a proposal by BCC to sign and agree the terms of the lease given to BCC by WEDCo at the beginning of August.
61. BCC's attorneys were advised that such a proposal would receive a fair consideration from WEDCo.
62. No such proposal was ever forthcoming.
63. On Monday the 26th of November, BCC's lawyers sent a letter to WEDCo in the following terms "The current intention is that the plant will be dismantled and sold off on a piecemeal basis, unless of course in the interim someone approaches BCC with a view to either buying the plant or alternatively the shares of BCC itself from those shareholders wishing to sell".
64. That letter was passed on to the Minister of Works & Engineering, who is responsible for WEDCo and given his responsibilities generally, brought the letter to the attention of the Cabinet.
65. As a result of representations made by BCC to the media, the media of Bermuda carried stories on the morning of the 27th of November 2007 to the effect that Bermuda was facing a cement crisis which threatened the ability of the construction industry to continue following the close down of the BCC facility.
66. As a result of the threatened disruption in the supply of cement to Bermuda, Cabinet met on the morning of the 27th of November 2007 to determine a position put forward by BCC in its attorneys letter of the 26th of November 2007, left the Government with no alternative but to offer to purchase the plant and equipment so as to ensure that there was no interruption in the receipt of cement to Bermuda and the supply of cement to the vital and vibrant construction industry.
67. During this period WEDCo has been advised that CEMEX, the supplier of cement to BCC and a major shareholder of BCC, has been kept abreast of the situation and have assured the Government representatives with whom they have met, that there will be no interruption in the supply of cement to Bermuda.
68. On the afternoon of Tuesday the 27th of November 2007, WEDCo's attorney met with the attorney for BCC to advise that the Bermuda Government was prepared to accept the proposal put forward by BCC and to purchase the plant and equipment at a purchase price of $250,000 and to purchase such cement as was left in the silos upon the expiration of BCC's lease at the landed cost of such cement.
69. On the morning of 28th November 2007 that offer was committed to writing.
70. By letter sent to WEDCo's attorneys at 3:15 p.m. on the afternoon of the 29th of November, BCC's attorneys wrote on behalf of BCC rejecting the offer and indicating an intention to advertise the plant and equipment for sale.