Letters: It Is Time For Change In Moraga Leadership And Accountability

Editor, Mayor and Town Council Members:

I will begin by personally thanking Mr. Steve Woehleke for being professional, courteous and responsive to concerns from members of the community, as expressed to the Town Manager and entire Council.

Mr. Mayor and all contributing members of the Moraga Town Council, yes WE DO HAVE SEVERAL PROBLEMS…

As a long time resident, taxpayer, business person, parent, contributor on various task forces, supporter of local business, religious, not for profit, art, nature and recreational endeavors, I am GREATLY concerned about the direction of the Town and its lack of professional, ethical and transparent leadership, as well as accountability to all of Moraga residents.  This statement is based on fact, with experience in working with numerous Moraga Town Councils, Town Managers, Planning Directors, Commissions, Boards, Police Chiefs, Business Leaders and others, as well as with neighboring municipalities in the LaMorinda area and Bay Area in general.  My disappointment and concern seems to be led by our current Town Manager, with unkept promises, inaccurate statements and falsehoods being more commonplace than truth, transparency and respect.  When one lacks an unwillingness to listen and true empathy for the concerns of others, that person has no place in our society as a public official.  Clearly our current TM has only allegiance to the TC and no commitment to or concern for the public health or welfare of others.

As many of us have done for years, we have attempted to improve the image of Moraga, the business climate of Moraga, and the reputation of Moraga in our little part of the world.  Needless to say, all of the positive efforts, community meetings, sessions and collaborative trust-building workshops with professional consultants and others over the years can quickly be “undone” and reversed when oppressive, ego-centric and power-hungry bureaucrats practice “cram-down” tactics on long term home grown local small businesses and residents.  Positive efforts and trust that takes years to build can be quickly undone and lead to long term resentment, conflict and increase costs too.  Word of such activities travels faster than California wildfires and results in business exodus and many other negative consequences.  Moraga can be a good place to live again, but the TC needs to make some hard choices, change the direction of leadership, truly become transparent in decisions and return Moraga to the structure that the founders intended – one of a semi-rural and minimalist government community.  The time is NOW !!!

Let’s review the agenda issues on Wednesday night’s agenda (plus a couple other questions that I have been unable to get answers from TOM staff, as below):

The Hacienda –

1) The RFP process that was supposedly undertaken here was a “joke”:  From the previous failures here involving a tenant who paid no rent at all (plus utility costs and maintenance expenses) for a year’s worth of occupancy, and another failed lease with legal costs and fees borne by Moragans seem to be of no consequence or “learning experiences” for our so-called leaders.  The “consultant” who was paid a fee to broadly promote and source prospects, clearly only went to his own contact list, did not cooperate with others in the brokerage community, reach out to local-home grown Moraga businesses who could have been ideal candidates for incubator type operations here, or exercise transparency either.

2) The NOISE issue:  I know that several others will and have spent time in addressing this issue, so I will try to keep my comments here as brief as possible.  If this were a private project and venue (as I have been involved with many), the TC, PC and TM would have required a “PROFESSIONAL” sound study by an acoustic engineer or specialist to determine impacts on the neighboring property owners, residents (human and fauna), and the impacts of such behaviors on the surrounding community, as well as professional parking study, traffic impact study, light study, etc.  How much money has been expended previously with various consultants, community meeting sessions, conceptual plans and designs, only now to be rammed through without complete surveys by the appropriate professionals. Apparently in the infinite wisdom of the TM, and with this being a public facility such professional study was not required and could be replaced by the highly skilled and well paid Town Manager, Parks and Recreation Director (and assistants), and Police Chief setting up a portable audio system with one speaker and walking through the property and close proximity with their I-Phones.  I don’t recall reading that any of them had experience in conducting acoustic surveys outside, during various times of the day and night, as well as in differential weather conditions.  If I am mistaken here, please let me know.  While this procedure was clearly more economical it was again in my opinion – A JOKE !!!

2A) Noise Regulation:  Apparently someone at the Town of Moraga decided that 80db was an acceptable level for amplified music to be played from the Hacienda without any professional study as referenced in Item #2 above. Then the TM and PRD apparently modified the lease language to reflect 75db.  Was there some scientific basis for this change? Who came up with the 500ft notice to neighbors as a last minute item following our community Zoom call?  Has the professional sound engineer determined that sound only travels 500ft in Moraga – oh yeah, there was no professional sound engineer engaged by the TC, yet they have engaged experts and consultants for MUCH less over the years….

Let’s look at what some neighboring professionally run communities do:

Per Lafayette City Ordinance – Table 5-205 the allowable db range is 45-60 max depending on location, type of activity, hours and neighboring uses. It seems as if this ordinance was based on fact and some common sense too.

Per Orinda MC Ch 17.39 and specifically to private clubs 17.39.7 the code states 55-60 max depending on hours and specific days of the week.  There are also very clearly defined penalties for violation, citation, speaker location, type of amplification, controls and limits on electrical devices, etc.  Again, it seems as if Orinda has some common sense language to address such activities.

Per Moraga Ordinance #254 – CH 9.08 – Unruly Party Ordinance – there is some language that deals with such issues.  BUT, for some unknown reason, the TM and PRD and TC have chosen to propose an alternate guideline for this draft lease at the Hacienda.  Perhaps someone could share the reasoning for such – again, some transparency and working out in the open with fact, disclosure and honesty would be helpful here.

3) Tenant Improvement Costs – why would the cost of an ABC license be included in Tenant Improvement costs?  Is this license going to be owned by
the Town of Moraga and stay with the property?  This is not a TI item.

4) Exclusive use of the Pavillion and shared use of the Hacienda?  Why?
How many Parks and Recreation staff will still be needed for the Town,
especially since it appears that they have an agenda to force Mulberry Tree
out there and possibly that will become their new offices?  It would seem
that one person could be housed very easily in the La Sala building, the
Town Hall building or Public Works offices.  Again, some disclosure and
transparency to Moraga taxpayers would be great here.

5) Maintenance and Repairs – a typical commercial lease has tenant
responsible for all facility Repairs and Maintenance of facility components
including electrical, plumbing, HVAC (R&M), or at minimum contributing to
the percentage of their occupancy of the whole on a pro-rata share.  Such
would include tenant solely responsible for all R&M costs for the Hacienda
and Pavillion and a shared expense contribution for yards, paved surfaces,
lots, etc.  Why is such not the case here and perhaps the Town Attorney has
recommended a deviation from a commercial standard for some specific
reason.  Disclosure please….

6) Why was it represented by the TM and PRD in the community meeting that the 10 year lease would be at a flat rate for the term of the lease, including all utilities, yet the draft recently circulated reflects a 1.5%
annual escalation.  This was not a redline change, so was someone trying to
add this without full disclosure?  Why also would there be a 10 year primary lease term for a brand new (and untested) tenant to the Town of Moraga, yet a 40+ year tenant in the Mulberry Tree is having to fight for a minimal term extension?  Please do share…..  Disclosure….  Transparency?

7) Utilities – WHY, WHY, WHY would anyone at the Town agree to a gross lease with utility costs included?  Is the expectation that the cost of utilities in the coming years will decrease, or best case stay constant? If the lease is for two distinct buildings, why not just install submeters (EMON type or equivalent) to monitor and bill back actual utility usage. What happened to the Real Estate Consultant hired by the Town and paid by US to assist with the process?

8) Liquor Liability Insurance – did I miss the provision naming the TOM as additional insured on the Tenant’s GL and Liquor Liability policies? Perhaps someone could explain why the LL policy limit is only $2M as opposed to a more reasonable commercial $10M limit.  I would hate to see a
case where the Town would be defending a claim and be forced to deplete all reserves and file BK when someone leaves a party, drives drunk and kills someone.  I would assume that the Tenant has shared their claim history and insurance limits required by other public venues.  Please share…

9) Options – Renewal Rights – I again find it very odd that a 40 year + tenant at the Town of Moraga is being coerced into a very short lease extension without the benefit of a renewal option, assignment language or subletting rights, yet the proposed Hacienda Tenant is being offered renewal options.  Please share how such is equitable, reasonable or otherwise fair and that there is no improper or “behind closed doors” agenda being exercised here by the TM or PRD or anyone on the TC with an alternate motive.  In any case, renewal / extension options are commercially not transferable to any assignee or valid in the event of any Tenant default prior during a lease.  Please confirm that this language will be consistent in all Town lease as well.  Transparency and equity here….

10) Quiet Enjoyment – As residents of the TOM, we should all be afforded reasonable peace and enjoyment of our properties for ourselves, our pets, our invitees, our kids and our families.  If the Town, or a Lessee of the Town, impedes upon such rights we will take any and all steps necessary to remedy such and legally protect our rights!!!

11)  I would like to know the total legal costs expended to date on this lease negotiation matter.

Mulberry Tree –

Members of the Town Council, what is the agenda of the TC and Parks and Recreation Department for this property?  Please exercise full disclosure here and advise of why the Town Attorney, Town Manager and Parks and Recreation Director are being so adverse, coercive and uncooperative in working with this long term Moraga business (one that has been in the community for years, educated and helped mentor many of our own children as well).  If the PRD is targeting this facility as her new home for additional staff hired by the Town (for some unknown reason the Town needs even more staff….), then I believe that the public has every right to know such and not have such only discussed with the TC behind closed doors in secretive meetings.  Full disclosure now is requested and indeed
demanded !

1) Covid – It is my understanding that this tenant has continued to pay rent during Covid and the economic shutdown, while many if not most private market property owners have provided rent relief, forgiveness and other concessions.  Why is this Tenant being “targeted” and penalized?  It is my understanding that this Tenant has even performed capital improvements to the property during this period.

2) Lease Extension – With this Tenant’s long track record of success and stability, why is this Tenant only being offered a short term lease extension (while another municipal project with an unknown entity to the Town is being offered a 10 year primary lease term, plus extension options?  The other municipal property and proposed lease includes either a flat lease rate or 1.5% increase, depending on which person is asked, yet the Mulberry Tree lease has a 3% annual increase.  Similar to the sound issue at the Hacienda, it appears that the Town is not being managed by consistency and standards, but at the whim of the Town Manager and whether she likes you or not to determine if you have favorable treatment or an adversary.  This again is an example of Moraga getting a bad reputation in the business community and one of the many reasons why Moraga has become an untrustworthy place to do business – the rules are consistently inconsistent and always changing depending on who is warming chairs in the TC and TM’s office.  Regardless, there is NO reason why such lease terms should be less favorable to a long term existing business that has consistently supported and been a pillar in the Moraga community for years, versus a new untested prospect that is making great “promises” (similar to others in Moraga who have made such promises and not performed).

3) Lease Assignment –  Why is Mulberry Tree being penalized and treated differently on this issue (as compared to the Hacienda)…..?

4) Parking – So in addition to the Town offering Mulberry Tree less than favorable conditions, they now want to also have public use of the parking lot.  Great idea, but bad execution.  If such is to be a “shared parking” arrangement then the Town should also be sharing for costs to repair, replace, clean, maintain, secure and illuminate this area.  This is again a very common procedure in commercial property leases and transactions, but apparently the Town staff and attorneys operate under the “flex our muscles” and mandate onerous rules on regulations on small businesses that are struggling to come out of Covid, while the Town is flush with cash and employing even more and more staff.  Again to one of my previous statements and founding principals of the TOM “MINIMALIST GOVERNMENT”.  Have we lost sight of this?  Now it appears that the mantra is maximize staff levels, and minimize common sense, cooperative community involvement and fact based management.  Stop bullying Moraga small businesses and try transparency and reasonable, fair and fact based negotiations for a change.  Why is the TC so enamored with a Town Manager who bullies, lies and misrepresents facts on a daily basis?  As TC members are our representatives, it is your DUTY to take action and PROTECT the health, safety, welfare and do so in an honest and professional manner or make changes to the Town structure to assure that such is the case.

This Tenant deserves fair treatment that is on par with other Moraga businesses and consistent with commercially recognized standards, no more no less…

5) I would like to know the total legal costs expended to date on this lease negotiation.

Other Unanswered Town Issues  (perhaps that someone from the Town of Moraga can address):

1) Utility undergrounding Moraga Rd – When will these projects be completed as promised (Phases II and III)?  In light of continued high fire threat risk, it would seem that this matter would be fast tracked, not further delayed.

2) Moraga Rd Traffic Calming – This is again an issue that has been discussed and studied (with various “professional consultants” engaged by the Town over many years), yet no action has been undertaken.  With two lane traffic at Campolindo and the Commons, there appears to be no good reason to have a freeway and high speed vehicles on the 4 lane section between Corliss and Rheem Blvd.  Perhaps the TC can finally make some changes to slow this speed corridor and protect life and safety of the Moraga residents, visitors and others.

3) Moraga Scenic Corridor – is there such a thing anymore???  If the TC and
TM are not protecting, enhancing and complying with codes and such regulations, then perhaps such should be disbanded.  Indeed either Moraga should return to the principles on which it was founded (Semi-Rural with
Minimalist Government), or the TC should vote to stop the shenanigans and unincorporate.

4) Water Conservation – perhaps the TC and TM and Parks and Recreation Director and staff can explain why when we are in the midst of a severe water shortage that the Commons Park water feature is active, as well as fountain and artificial pond at the Hacienda filled and running.  This again seems to be socially irresponsible and another example of the Town mandating compliance of private citizens, businesses and others, only to hold themselves to a different standard….  I would love to see this response.

Regards and I look forward to having responses to all of these points in writing, with timelines and plan.

Dave Schnayer