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It might not be right… but its Enforceable

By   /   January 15, 2012  /   18 Comments

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“ENFORCEABLE: A right or obligation is enforceable if the party obligated can be forced or ordered to comply through a legal process.”  ‘Lectric Law Library

 

Yucca Valley, Ca– I am going to tell you straight up that unlike Margo and Branson, I kind of like Yucca Valley Town Manager Mark Nuiami. He is always willing to enter here and verbally duke it out. He has the big cajones to actually express himself , a lot more than most any other City Managers I have ever heard or read of. Now comes the caveat….. With the above said:

We are all held to contracts and the Enforceable Obligation Payment Schedule (EOPS) filed by the Town of Yucca Valley is a Contract. It says that the RDA made X amount of tax dollars a year and spends Y amount a year. The Y is broken down into expenses, bonds and in Yucca’s case Pass thrus.  Some numbers make sense some do not. Mark has been attempting to help this old country boy out and explain things.

I got this feeling that as most towns and cities  when they did their Enforceable Obligation Payment Schedule, they   put together a document to protect as much of the increment as possible from the big bad State. So convinced that the end of RDAs was impossible and never going to happen because of the law suit the cities had in front of the State Supreme Court and by God they were going to win. It went worst case scenario.

Well it did not work out that way and now cities and towns are stuck with poorly written and poorly planned Enforceable Obligation Payments Schedules. As the title demands these scribblings of nonsense in some cases, are now enforceable.

Oh we can talk about the “real” numbers until we are blue in the face. Mark can set me straight with every truthful fact in his war chest, but how does he take back what is in the Enforceable Obligation Payment Schedule?  That right or wrong is now set in stone.

So confident were towns and cities. So utterly have the dreams and visions of many a municipal functionary been dashed against the rocks.

 

Last RDA Meeting w/ EOPS and ROPS

2012_01_17_successor agency_agenda

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About the author

Dan OBrien

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Cactus Thorns has been online in one form or the other since 2001. What started as a personal blog documenting the corruption and lack of Due Process of the 29 Palms Community Development Department has turned into over these many years into a hugely popular Independent Alternative News Media Outlet. We have partnered with other media including The Desert Star Weekly, Joshua Tree Star, other blogs, indie media and an incredible staff of volunteer Reporters, Commentators and Opinion Makers to create one of the most read, honest and dependable alternative to the Local traditional Media services in the country. Thanks to you the reader we are in the 5% of most read sites in the World.

18 Comments

  1. Mark Nuaimi Mark Nuaimi says:

    @Dan ... AB 26 calls for updated EOPS to be submitted and then ROPs to be generated every six months to show the cash flow requirements to keep obligations current. While the Court upheld AB 26, there is considerable likelihood that provisions within 26 will end up in court in the coming months / years as agencies attempt to pay obligations that they entered into in the early months of 2010 prior to the adoption of AB 26. While the legislature enacted AB-26 and established a moratorium date of January 1, 2010 (prior to the date they enacted their legislation), it's going to be up to the courts to decide whether that act can unwind legitimate contractual commitments made by agencies prior to the enactment of AB 26.

    I would be more than happy to sit with you and go through our EOPs to discuss the merits of each obligation and their rationale as it pertains to RDA activity.

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    • Dan OBrien Dan OBrien says:

      But then we have been talking about the EOPS Dated 23AUG2011. The EOPS is in this instance the ROPS.

      Yeah and Roe V Wade will eventually be overturn too. Don't hold your breath.

      What legitimate contracts? You mean the ones that were knowingly entered into after AB-26? That argument is the same as the guy who says, "I didn't know she was only 13." It ain't going to fly. Especially with all the hubris and open contempt for the law that was shown by many cities. Have you read some of the Resolutions that were passed by these cities? Have you read your own Resolution RDA-11-08? The courts will laugh the Redevelopment Association out of the building.

      On meeting... Sure. You buying? I get to pick the venue.... I'm thinking Papa's BBQ, what do you think?

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      • Mark Nuaimi Mark Nuaimi says:

        Dan, this is where I'm going to end because you're either not reading what I write or you just want to make an argument out of this. The issue in question is contracts and agreements that agencies entered into between January 1, 2011 and when the state legislature passed and the governor signed AB-26 (June 30th, 2011 date). Until the legislature passed and governor signed AB-26, agencies continued to operate. But AB-26 language attempts to invalidate actions taken by Agencies prior to the time signed by the governor.

        As much as I know you hate RDA, I have to think you see the difficulty in passing laws that make actions taken previously illegal. Imagine if they passed a law prohibiting blogging and dated it back to January 1, 2011 and then came knocking on your door telling you that you were under arrest. I have to think you'd lawyer up and take it to court.

        While this might be an extreme example, the argument is the same. Anyways, the issue is not after June 30, 2011 but prior to. Many agencies continued to operate during 2011, prior to the freeze and that is where the dispute arises.

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        • Dan OBrien Dan OBrien says:

          First I'm going out of my way to understand you... reading every line of your posting.. reading your agendas I'm not trying to argue.

          Here is where you and I have to differ. Even Before January 1st 2011, RDAs knew that the end was nay.

          The Court if you remember ruled that the State set the rules and what the State created the State could un-create. Using the same logic if the State can Create then it can also set the "Regulations of RDAs" .... I mean even I knew back in the late part of 2010 that all RDAs were told not to do certain things.

          You guys took the thing to court and the Supreme Court told you Not to do go further into debt and not shield the money... Many cities just defied the Courts Ruling... What the heck 435 RDAs they can't catch them all.

          Since RDAs are creatures of the State and not of any town, village or city the State sets the rules. You were told to adhere to the rule of the Court.

          For argument sake lets set the June 30 date and let me ask what part of the Courts injunction did you not understand after that date?

          Did you read you own Last RDA Meeting agenda? You are writing checks that reimburse property taxes in defrence to a court order, in one example I recall. The "Big Freeze" as you called it said you could not do that. But you defied the Court... I can show you dozens of expenditures that you have made on consent calendars after June 29th that are in direct defiance of the Court Order... What happened here? Did you and others think you would skate on by because the Court would find in the RDAs favor... and beside so many cities were doing it who would get caught.

          "Good evening Mr. and Mrs. America from border to border and coast to coast and all the ships at sea. Let's go to press." The Supreme Court of the State of California did not see it your way. There is enough hooliganism and downright shenanigans done by the RDAs in the interim between passage of the bill and today to keep a criminal court busy for months just arraigning small town government functionaries, but that is not what we are talking about.

          We are talking about is the EOPS or now the ROPS accurate? Was it correct before or is it correct now? I just asked a pretty simple and straightforward set of questions.

          Does this mean I'm not going to get my Papa's BBQ Lunch?

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          • Mark Nuaimi Mark Nuaimi says:

            The state supreme court ruled on December 29, 2011 regarding the ability of the legislature to abolish RDA. Not sure where you can make the claim that in 2010 agencies knew that the state would abolish RDA... What was clear was the state was targeting RDA funding on an annual basis and diverting it from RDA to help balance their budgets. In fact, during 2011, the attempt to abolish RDA outright was defeated in the legislature.

            There was no court order in place at the start of 2011 and until the governor signed AB 26 on June 30, 2011 agencies continued to operate. Since the legislation passed, lawsuits were filed, the court stayed only portions of ab26 until its ruling, and our agency has continued to honor prior contracts and agreements.

            Offer to meet is still on... I didn't realize meeting to you implied meat was involved but I'm happy to treat to lunch.

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            • Dan OBrien Dan OBrien says:

              Don't go all Vegetarian on me. :-)

              The following are musings and not necessarily directed to you, but just some general observations:

              Here is the thing on the timeline, and I suspect this is what the Court is going to decide. The Court has ruled that RDAs are organs of the State... Not the community they were attached to. The State created them, the state can abort them.

              As a creation of the state, the state and state alone regulates them. A directive by the controlling authority (the State)to a division of that controlling authority (RDAs) thru Executive memo, regulation or law is binding. To think otherwise is Chaos.

              The Executive has to be able to manage the divisions of the Executive Branch. So too, the Legislature can dissolve any division of the executive branch it created in law.

              Could and did the RDAs take the controlling authority to court for injunctive relief? Yes indeed and they did so. But they Lost. While an injunction was ordered, it was limited and held the RDAs to some very narrow duties and authorities.

              Did they then take it to the Supreme Court of the State? Yes and lost there too.

              Because they lost and lost with such a total humiliating defeat, to the victor goes the spoils.

              Instead of screaming foul, and demanding a redo in asking the Legislature to create a new RDA system, RDAs need to get to the business of winding down and humble themselves to their citizens and ask for forgiveness.

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              • Mark Nuaimi Mark Nuaimi says:

                Dan, everything is an "organ of the state" when you consider that incorporation of cities is done through LAFCO and the state can unwind those entities (as they attempted with Vernon).

                You also keep referring to a court action prior to the Supreme Court. When AB26 was passed, the CRA and LOCC took the item directly to the Supreme Court. There was no other action ... there was no other court order but those handed down by the Supreme Court during the months of hearing the case and ultimately ruling on the matter in December.

                The issue that still and will remain (until decided by courts) is that time between January 1, 2011 and June 30, 2011 when there was NO court order restricting RDAs, NO legislation passed unwinding RDAs, and NO state authority to halt efforts. The legislature simply decided to pre-date the check to January 1, 2011 and are now asking agencies to accept the consequences. That is what will end up in court, IMO, through the various discussions at Oversight boards. Hence the need for some "reconstitution" of Agencies, again IMO, to avoid a crush of lawsuits -- that, oh by the way, must be heard in Sacramento Superior Court (all of them) based upon AB-26. Sounds like chaos to me.

                As to your "victor goes the spoils" ... there continues to be a battle between state and local government over control. From unfunded mandates, to attempts to take HUTA, to SB-375 / AB-32 impacts, to RHNA, ... the assault on local control continues and is likely to continue.

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              • Dan OBrien Dan OBrien says:

                The State mandates things of cities all the time. Mandates that are regulations and opinions of the AG and others that are binding on the cities.

                The recourse cities have is as they did here take it to court, or work with the Legislature to over turn the Executive Branch.

                I do not see a conflict. This is what most of us over 50 guys and gals learned in Junior High School Civics class.

                You guys can fight this all the way to the Supreme Court again and loose. What is going to happen is the State will eventually consider those cities that do not comply to be in rebellion and move to have them brought back into compliance.

                Because guess what most Cities are Corporate Cities. Corporate cities were created by the State Legislature. The State Legislature can un-create your happy asses the same way they did RDAs. This is not a theory, this is a fact of law.

                So with all this said, and all do respect I gave you the January-June 2011 window for argument sake. WHat about those things and activities that were forbidden in the injunction After June 29th 2011? Do you think it was just an oversight that you and other city managers continued to violate the injunction?

                I mean the list of things forbidden was long and quite specific. Read this HEALTH AND SAFETY CODE SECTION 34161-34168

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    • Dan OBrien Dan OBrien says:

      I just got a chance to read the Agenda for the Yucca Valley Successor Agency... Kind of jumping the gun but what the hell. What struck me was Page 4 Paragraph B.

      Explain to me all that business you conducted between January 29th 2011 and Now.... You loaned, granted, made deals, signed contracts.... all New Business.... You think maybe the Oversight Board might be looking for you to pay that money back?

      You think that someone who is looking to fund their agency and or make a name for themselves wouldn't want to rake you over the coals?

      Good thing about your agenda for the RDA is you list them.

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      • @Yucca Valley Town Council- Thank you for following these RDA posts on Cactus Thorns. I have been unable to sleep because I have been digesting the 300 page + Town Council agenda(s), to include the RDA and Successor packets and I have more questions:

        Nuaimi writes:"Since the legislation passed, lawsuits were filed, the court stayed only portions of ab26 until its ruling, and our agency has continued to honor prior contracts and agreements."

        I am concerned about the Town's new contracts and unwritten obligations that were taken on during the "Big Freeze," as listed on the "Recognized Obligation Schedule."

        @Nuaimi
        1. For example, a review of the Yucca Valley OPS,Obligation Payment Schedule, Stamp pg. 23, Line item 6, indicates a pass thru agreement of $181,000 to Hi-Desert Water District. Where is the copy of this "agreement" and when did it get bumped up to this amount? HDWD CFO Frank Luckino declared at a previous meeting, recorded on DVD, he was removing the annual $60,000 pass thru from the budget in anticipation of the changes of the RDA.

        2. How did this figure of $181,000 come about? Have you increased any other pass thru amounts to any other agencies? If so, which ones and by what authority?

        3. Going to stamp page 22, PDROS, Preliminary Draft Recognized Obligation Schedule, it appears that you have listed SEVERAL items that have no contractual legs to stand on and some that may have been contracted after the issuance of the stay.

        4. I am referring to the General Plan Update for contract for $1,020,000. of which you list on line item 7 in the amount of $500,000. Why would the RDA pay for any City or Town's General Plan update?

        5. Have you listed the Town of Yucca Valley Development Code update as an RDA obligation too?

        6. There is no agreement to the $4.5 million dollar "loan" to the HDWD and I do not understand why it appears on line item #10. I was informed by a reliable source, you had attached too many strings to this proposed loan, therefore, no signed loan docs.

        7. What about line item #12, listing $500,000 for public infrastructure seems misleading, as this was originally listed as the purchase of Blue Skies Country Club (land) for a "watershed." Even if you switch this amount over to the Long Canyon project, in a smaller form in conjunction with the Army Corp of Engineers,this undertaking would be so enormus, you even removed this project from your computations of Development Impact Fees.

        8. Why are you charging off $100,000 attorney fees on line 6? Is there a signed contract with our town attorney in this amount for RDA business?

        @ Mayor Dawn Rowe, I hope you will be cautious about signing your name to a document that will be filed with a government agency. It is my opinion these figures skirt the gray area of wishful thinking when the reporting asks for contractual obligations.

        Again, as is Nuaimi's style, there is no workshop on these issues and he has the YV Council slammed against the wall with a time constraint deadline of February 1st. As usual, he may be counting on some of the newbie YV Town Council members not reading their agendas and rubber stamping all of his proposals.

        As for my feelings for our Town Manager, Mark Nuaimi, I am positive the feeling is mutual between us, nothing personal.

        He has a style of arrogance due to his abundance of confidence and multiple talents. I have a style of being a thorn in his side due to my protective nature and understanding of human nature. I know who and what he is.....a mutual respect as we volley back & forth on the issues of the Town of Yucca Valley. We are both set in our ways...so be it.

        Okay, time to rest. I hope I am appointed to the Oversight Board!

        PS. My husband admires Nuaimi's ability to get the job done. He feels Nuaimi should be in charge of the YV Sewer project because he has the talent to think outside of the box and is a deal maker.

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        • Mark Nuaimi Mark Nuaimi says:

          I'm not going to answer each of these but offer the following as an example of the inaccuracies provided above:

          Regarding the pass-through with HDWD, during the HDWD budget deliberations, they removed $160,000 from their budget based upon the expected loss of pass-through (not $60,000). To verify this, go to the link on HDWD budget and see the $160,000 reduction in Property Tax (from $1,385,269 to $1,225,269). I also have the HDWD Powerpoint that shows the figure to be $160,000:

          http://www.hdwd.com/Portals/0/HDWD/Documents/Board/Budget11-12resAdoption.pdf

          The pass-through % was negotiated when the Agency was formed (years ago) and it's quite simple -- the district gets 100% of the tax increment they would typically receive from property taxes (6.9% of the 1% ad-valorem taxes). The reason the amount changes is because it goes up (and down) with assessed valuation. The $181,000 figure included in the EOPS is derived from the pass-through amounts that were included in the 2008 Bond Issue Fiscal Consultants Report for consistency and basis, and represents highest amount paid to date in order to show "worse-case" requirements for tax increment in the coming year. This is the same for all the pass-through amounts shown in the EOPS and actual payments to pass-through agencies are calculated at the time of property tax receipts to the county... so the numbers will be different.

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          • Mark Clemons Mark Clemons says:

            In the classic three-card monte scam, the red queen does stay on the table, but the tosser leads the player away from it. When the tosser shows the cards, he or she holds a black card in one hand and a black card and the red queen in the other hand. This black card is held between the thumb and middle finger, and the queen is held in front of it, between the thumb and the ring finger. Since the queen is in front, the player assumes the tosser drops it first. But in fact, the tosser releases the black card first, while moving his or her hand to the side. This moves the queen out of the way, so the black card can fall straight down. The tosser does this so quickly that the spectators never notice. So, from the very beginning, everybody is tracking the wrong card.

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            • Nuaimi's Razzle-Dazzle: avoid the BIG issues by highlighting a smaller correction of $60,000 to $160,000. My misquote of that item DOES NOT negate all the other questions of legality.

              Nuaimi will not address the questionable items because he has no explanation. He will attempt to pull the wool over the Town Council's eyes while deflecting the issue of the Senior Housing (CORE) financial fiasco that he brought in from his Fontana connections.

              ".....So, from the begining, everybody is tracking the wrong card."-Mark Clemons

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            • Dan OBrien Dan OBrien says:

              Oh, I been keeping my eye on the queen.... boss

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  2. Don't drag me into this. l have questioned some of Mark's decisions but I have nothing personal against Mark. I think he's a decent guy. where the hell do you get off making a statement like that. Don't be a jerk O'Brien.

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  3. Huh?

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