MORAGA TOWN COUNCIL MEETING JUNE 23, 2021

TOWN CLERK’S DEPARTMENT

        MORAGA TOWN COUNCIL MEETING
                JUNE 23, 2021

                   CORRESPONDENCE RECEIVED
                  AFTER AGENDA WAS PUBLISHED

                                       FOR ITEM:

5. PUBLIC COMMENTS AND SUGGESTIONS – Time reserved for those
in the audience who wish to address the Town Council on items which are not on the
agenda. The audience should be aware that the Council cannot discuss details or vote on
non-agenda items. Your concerns may be referred to staff or placed on a future agenda.
Note: Public input will also be taken during each agenda item. Public Comment may be
made on the Consent Agenda.

 _____________________________________________________________________________
329 Rheem Boulevard  Moraga, CA 94556  (925) 888-7022  mmcinturf@moraga.ca.us  www.moraga.ca.us

From: Dave Schnayer 
Sent: Tuesday, June 22, 2021 6:29 PM
To: Cynthia Battenberg ; Marty McInturf ;
Steve Woehleke ; Teresa Onoda ; Renata Sos
; Mike McCluer ; David Stromberg

Cc: Mulberry Tree Preschool ;
events@wedgewoodweddings.com;  ;
christinesh@comcast.net; mkenyon@bwslaw.com
Subject: It is Time for Change in Moraga Leadership and Accountability - Issues and Public Comments
relative to the TC Open and Closed Sessions 6-23-2021

 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 !!!

Lets 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