Loading...
HomeMy WebLinkAbout2/27/2017 - STAFF REPORTS - 00 Cindy Berardi From: Terri Milton Sent: Monday, February 27, 2017 3:17 PM To: Cindy Berardi Subject: Fwd:In case you don't read out--of-state papers... Attachments: ARTICLE 2017.01.20 The Journal, Wessman Mirador phase two begins.pdf; ATT00001.htm;ARTICLE 2017.01.20 The Journal, Wessman Mirador phase two begins YMark.pdf;ATT00002.htm;ARTICLE 2017.02.20 Herald, Durango townhome developer charged with corruption in Palm Springs.pdf,ATT00003.htm;ARTICLE 2017.02.20 Herald, Durango townhome developer charged with corruption in Palm Springs YMark.pdf;ATT00004.htm Sent from my iPhone Begin forwarded message: From: Roxann Ploss <riploss(agnail.com> Date: February 24, 2017, 7:41:13 PM PST To: <Terri.Milton(dpalmsprings-ca.gov>, Robert Moon<Robert.Moon cr,palmspringsca.gov>, Geoff Kors < eg ofj(�veoffkorsxom> Subject: Fwd: In case you don't read out--of-state papers... Terri, I' d like to have the following included for tonight's (MondaY s) Public Forum on Downtown Developme nt. I've attached two recent articles from the Durango (Colorado) Herald. Worth reading because of the similarity with our own situation. Note The pictures which include the obstructed views of THEIR mountains and THEIR City Council ' s later decision . There are also reader comments following the more recent article of the two. And my comments for the meeting: To the Honorable Mayor and Members of City Council, Good evening. What a spectacular opportunity lies ahead of you. Seldom are we allowed to rectify a life-altering mistake mid-way. Yet, that IS the opportunity. Many of you have commented over the past two years that, while change was obviously needed downtown, THIS project "got away from us". Or, "the (totality of the episodic) changes were not that apparent to us until now". Or, "this is too large". Or even, "I don't know how this happened!" Certainly, in the past 18 months, cut-backs were agreed upon. But, with a contract apparently firmly in place, there seemed to be no choice but to soldier on toward completion. Now, the contract itself is in question. There are some who even want the Measure J vote re-visited. The money, the extended time schedule, the shadow over the decision(s) made have brought you all together tonight. Quite obviously, the hotel must be finished and operational a.s.a.p. The "West Elm" building is already in place. But before the creation of even 2 steeper, more congested canyons of noise, heat and air pollution, there is time to consider a low row of store fronts which mirror those on the east side of Palm Canyon Drive and a much larger park. Views would be preserved. The pedestrian experience would be enhanced. Traffic and parking would be improved (over what is currently planned). There is little argument that the Downtown Development Plan changed, sometimes radically, over each of the ten years of discussion and, seemingly, with just about every request for permits presented before the Architectural Advisory Board, the Planning Commission and the City Council. Many believe that another and radicalkt different change should be considered! With the tribal plans for a 350 room hotel proceeding only a block away, can we really risk building still more large structures without jeopardizing the life- style for which Palm Springs is so justly famous!? It is a pity that the town which founded its reputation and enviable tourism upon the respiratory good health of its visitors and residents is now ready to sacrifice all of it for "success" measured solely by dollar signs. With hope for the future, Roxann Ploss Palm Springs, Ca. 3 "You cannot maintain a soul of a community if you detach it from history." Dani Dayan 4 Mirador phase two begins Completion of duplex expected June 1 Article Last Updated: Monday, January 23, 2017 2:22pm jol t S After a decade of stalled construction, the second phase of the Mirador development, known locally as "Box on the Rocks," began last month, with a spring completion date for the duplex being built. Frank Enea, owner of Classique Builders, said the duplex is the only construction planned at the moment. • The duplex will add to the triplex built in phase one on Rock Point Drive. At buildout, the E development will include 23 luxury units. n i "We're just building some models at the moment a r to determine how much interest there is, and g what it will cost us," developer John Wessman Rsaid. "I will tell you, last time, they cost twice as h much as what they sold for. Part of it was the 0 times, when the market collapsed." 4 Shaun Stanley/Durango Herald About two years after the Durango City Council Mirador's flat-roofed dwellings agreed to allow residential uses in this area, the earned the project the nickname first Mirador townhomes were approved in 2oo6 "Box on the Rocks." for the ridge above Greenmount Cemetery ., overlooking town. Multiple commercial uses have been proposed but never realized for the ridge-line spot over the years, including a restaurant and a Hilton hotel. E The nine-phase Mirador project received a °I special-use permit, which was required for a residential development on the ridge, from city rr administration in 2oo6 and was therefore g a exempt from governmental and public review R processes. To develop on the ridge near the Tech h o Center, the city required only a special-use t permit, approved at the staff level, for Mirador. 0 Shaun Stanley/Durango Herald Since then, the flat-roofed dwellings that gave The new duplex being built in the the development its nickname have drawn Mirador development will be criticism from locals for obstructing Durango's smaller than the original homes, with more open space between view to the west. In 2010, city planning officials the units. decided that ridge-line projects such as Mirador should be discouraged going forward. "About a year and a half ago, the developers started talking about continuing construction but wanted to make some modifications," City Planner Craig Roser said. "The new units are downscaled so they're slightly smaller, and there are provisions for more open space between the units. But the exterior character, style, materials and colors will be the same as phase one." The developer must stick to the design concept originally approved for the project or else the project would be opened up to public review and subject to regulations the city instated after the 2oo6 approval, including the Fair Share ordinance. Wessman did not provide an estimate on pricing for the duplex. He said rates will be set based on buyer interest when the new units are complete. Homes in the first phase sold for around $1 million to $2 million each, and one at 235 Rock Point Drive is on the market for $1.5 million. The duplex units will range from 2,500 to 3,000 square feet, with three bedrooms and 2.5 or 3.5 bathrooms, depending on the unit, Enea said. Roser said work on phase two will likely pick up this summer when construction season begins. Durango townhome developer charged with corruption in Palm Springs Firm assures that construction corruption By Jessica Pace Herald Staff Writer I Monday, Feb. 20, 2017 4:39 PM The developer behind Durango's Mirador townhomes is facing felony corruption charges in Palm Springs stemming from business dealings with the city's former mayor and another developer. John Wessman, 78, is charged with nine counts of offering a bribe, according to a criminal complaint filed last week by the Riverside County District Attorney's Office, and faces a potential 12 years in prison if convicted. Wessman, who lives in Palm Springs, did not return a call for comment. The developer began building in Palm Springs in the 196os. He has two hotel projects pending in Memphis as well as the Mirador residential development in Durango, known better locally as "Box on the Rocks." The project was unique in that it did not require a public review process or City Council vote because of its location and an existing development plan for the city's western ridgeline, so Durango city staff members approved the project internally in 2006. The first units were built in 2007 on Rock Point Drive, above Greenmount Cemetery. Phase two of the nine-phase, multi-unit project broke ground in December adjacent to the existing triplex. Mirador will consist of 23 units when completed. Michael Braun, Wessman's son-in-law and senior vice president at Wessman Development, wrote in an email to The Durango Herald that the pending charges will not impede Mirador construction. "We anticipate the build-out of phase two to be completed by late summer 2017 and the remaining phases by 2018 to complete this exciting housing n i y� n 1 ♦y1� '' M T r I !' r 1 llll Liy x�r c project," Braun wrote. Durango officials, including Mayor Christina Rinderle and City Manager Ron LeBlanc, said they were unfamiliar with the details of the case, and they had no comment. A statement from Wessman Development issued last week announced Wessman's retirement and asserted his innocence. "While John Wessman denies all of the allegations of the complaint, which he will vigorously defend, the paramount concern of John Wessman, Michael Braun, all of the Wessman entities and the entirety of the staff, is to ensure that all projects proceed in a timely manner to completion," the statement reads. "In light of these events, John Wessman has formally retired and is no longer involved in the management or in the day-to-day operations of Wessman Development, Wessman Holdings, or other related entities." Wessman partnered with the city of Palm Springs on a $400 million plan to reshape the downtown area that includes a hotel, shops and restaurants. The complaint alleges that between 2012 and 2014, ex-Palm Springs mayor Steve Pougnet was paid $375,000 from Wessman and another developer, Richard Meaney, in exchange for votes to advance the developers' interests. Palm Springs is a city in Southern California in the Coachella Valley. The document identifies nine payments to Pougnet and 11 votes on seven projects or land sales to benefit the two other defendants, including approval of development plans and variances. Meaney faces the same charges as Wessman. Pougnet was charged with nine counts of receiving bribes, eight counts of conflict of interest as a public official and three counts of perjury. All three men face an additional charge of conspiracy to commit bribery. The charges come about a year and a half after an FBI raid on Palm Springs City Hall, prompted by The Desert Sun's reporting on Pougnet's ties to the developers. Over several months in 2015, the newspaper investigated how Pougnet received suspect payments from Meaney's company, Union Abbey, for ambiguous consulting work. Pougnet left office in December 2015. The Los Angeles Times quoted Riverside District Attorney Mike Hestrin in a news conference last week with local reporters: "This was a bribe and not just business. It was pretty brazen, and it was pretty obvious." jpace@durangoherald.com Terri Milton From: Geoff Kors Sent: Thursday, February 23, 2017 8:33 AM To: Laurence Luckinbill; Robert Moon; CityClerk; frank tysen;Judy Deertrack; Franco, Al; skip.descant@desertsun.com; Fessier, Bruce Subject: RE: Responses to Indictments Hi Laurence, I know that your email was a "Letter to the Mayor" but as you included me I wanted to let you know that I have read it and appreciate your thoughts. The reason we are holding a special meeting on Monday and I requested that we have an outside legal expert join us is because I want to share information with, and hear from, the community and want the Council and community to be informed about the situation and our legal options given the circumstances. With regard to Oswit Canyon, I requested to be appointed to, and serve on, that subcommittee given my background working on environmental issues. The City is not being lax but rather is following election law. Once the signatures were verified we placed the item on the next City Council Meeting which is next Wednesday. At that meeting the subcommittee and staff will provide information to the Council including the potential legal implications of any decision which we have been researching. At that meeting we will also hear public comment and then make a decision on how to proceed. Again, thank you for your email and your passion, which so many of us share, to do what is best for Palm Springs and our residents. Best, Geoff From: Laurence Luckinbill [IgII134@gmail.com] Sent: Thursday, February 23, 2017 12:21 AM To: Robert Moon; Geoff Kors; CityClerk; frank tysen; Judy Deertrack; Franco, Al; skip.descant@desertsun.com; Fessier, Bruce Subject: Responses to Indictments Letter to the Mayor Dear Robert: I'm assuming you are super aware of the extreme dissatisfaction of a growing number of citizens out here who pay attention to the reporting (and to the back channel fact-gathering) of the Wessman/Meany/Pougnet Mess, and the trail of bribery and abuse of the PDD process, the Oswit Canyon laxity and attempt to destroy a precious land resource, and many other examples of failures (deliberate or not) to follow the General Plan, and a spreading Ca-a7-ao» �d I , h�n� l �l ����Is history of deep and ingrained misprision in this beautiful and beloved city, which has finally begun to smell bad enough that even folks who are still asleep in this town are now opening eyes and minds to how badly they have been used by this city government by imposition of higher city taxes spent for a downtown renewal of unconscionable ugliness, and fake grants to developers who don't really develop. This will not stand. Too many people are now watching every move city government is making. This is not an accusation of anyone--most particularly not you and not Geoff Kors--just a heads-up--to inform and alert Council that every move any elected official and any city employee makes now is subject to a deeper and more informed scrutiny by the public. The Desert Sun has done a very good enlightenment job, and private individuals have insisted on fair play in your work. The post-election events in the Federal government have just now begun to rouse a righteous fury in the nation, and it is going to carry into all local officialdom and wash over this city government as well. The public is slow to rouse, but hard to stop once it is awakened. The time is here to wipe this city government slate clean of folks who will not be honest, scrupulous, and transparent for fear of unnamed persons or for personal embarrassment, or because of past laxities. For God's sake, lead, Mr. Mayor. Take charge of this. Don't let a day more pass without action on your part to make this city clean and clear of corruption. Leadership is power--having a position is nothing--even if elected by a landslide--if you preside over a continuing rat's nest of managers and lawyers and time-servers who abandon their sworn duty for whatever reason and participate in a corrupted regime. z It won't stand, sir. In a long-past Council meeting I used my little 3 minutes to urge the Council to "Dream a Better City." The path Palm Springs was already on, unknown to me then, was the mess that you have now inherited big-time. This city has now been warned by the AG and the FBI that more investigation is coming. This is the moment to seize the reins and drive the city toward the physical beauty that the downtown deserves--the first-class, top-drawer Architectural and Cultural rejuvenation that will draw visitors for decades to see and marvel at--and just as you see the success of Modernism Week--there could be a renaissance of urban beautification and cultural enrichment in the downtown renewal. The buildings now there deserve to be razed. feel great sympathy for the businessmen who have relied on city government to get the damned project done and working--therefore bold actions are called for now. Half measures, or handing the project back to folks who may be un-indicted but complicit--because it will cause fewer waves--is to become tainted, to become a lesser part of it, and suspect in turn. And then there must be a new government next time around--let the awakened people choose again--this time with much more knowledge of the consequences of not doing "extreme vetting" of all proposed public officials. Robert, I respect what I have seen of the positions you have taken and the same with Mr. Kors. I am not only one person with no power--I am simply bringing a message from many, many who are ready to "throw the rascals out." We may not be very visible yet, but the tsunami conditions are forming. Attention must be paid. 3 Thank you for YOUR attention! Sincerely, Laurence Luckinbill 4 Terri Milton From: Theresa Black <tblack@ptwww.com> Sent: Monday, February 27, 2017 3:45 PM To: Robert Moon; Chris Mills; Ginny Foat;Geoff Kors;JR Roberts; CityClerk; Marcus Fuller Cc: Michael H. Leifer, Patrick A. Hennessey, Elise Kern; Michelle M. Pase;Jody E. Sidebotham Subject: Proposed Ordinance to Change Zoning for Oswit Cone Area Attachments: Letter to Mayor and City Council 2017 02 27.pdf Dear Honorable Mayor, Council Members and City Clerk, Please see attached letter dated February 27, 2017 regarding the above-referenced matter. Theresa Black 1 Paralegal Palmieri, Tyler, Wiener, Wilhelm & Waldron LLP 1900 Main Street, Suite 700 1 Irvine, CA 92614 Direct Dial (949) 851-7277 1 Fax (949) 825-5444 tblack(@ptwww.com 1 ptwww.com PALMIERI TYLER A T T O R N E Y S A T L A W This message and any attached documents contain information from the law firm of Palmieri, Tyler, Wiener, Wilhelm & Waldron LLP that may be privileged and confidential and protected from disclosure. If the reader of this message is not the intended recipient, or an employee or agent responsible for delivering this message to the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the message and deleting it from your computer. Thank you. i PALMIERI TYLER A T T O R N E Y S A T L A W ANGELO J PALMIERI (1926.1 1 1 6) ROBERT F WALDRON (1Y27-1 996) DENNIS W OMAN' MELISA R PEREZ P.O.Box 19712 DAVID D PARR' MICHAEL I KEHOE Wine,CA 92623-9712 CHARLES H KANTER' CHADWICK C BUNCH PATRICK A. HENNESSEY ANISH J.BANKER February 27, 2017 DON FISHER RYAN M PRAGER WARREN A WILLIAMS ERIN BALSARA NADERI Patrick A.Hennessey JOHN R LISTER ERICA M SOROSKY Direct Dial (949)851-7204 MICHAEL H LEIFER JOSHUA J MARX Direct Fax (949)825-5409 RICHARDA SALUS ERIN K.OYAMA phennessey�ptwww.com NORMAN J.ROOICH KATHERINE M SHAW MICHAEL L O'ANGELO BRIAN GLICKLIN STEPHEN A SCHECK CAROLYN H CLARK DONNA SNOW M OMAR HASHIM Refer TO File No.38819-000 RYAN M.EASTER NAIANI N TEMOURIAN Document I D.20245801 ELISE M KERN MICHAEL C CHO.OF COUNSEL RONALD M COLE,OF COUNSEL MICHAEL J GREENE',OF COUNSEL ROBERT C.IHRKE,OF COUNSEL GREGORY N.WEILER,OF COUNSEL ALAN H WIENER',OF COUNSEL JAMES E.WILHELM.RETIRED DENNIS G-TYLER',RETIRED 'A PROFE86IONAL CORPORATION VIA FEDERAL EXPRESS Hon. Mayor Robert Moon Mr. Chris Mills, Council Member City of Palm Springs City of Palm Springs 3200 East Tahquitz Canyon Way 3200 East Tahquitz Canyon Way Palm Springs, CA 92262 Palm Springs, CA 92262 Ms. Ginny Foat, Council Member Mr. Geoff Kors, Council Member City of Palm Springs City of Palm Springs 3200 East Tahquitz Canyon Way 3200 East Tahquitz Canyon Way Palm Springs, CA 92262 Palm Springs, CA 92262 Mr. J.R. Roberts, Council Member Ms. Kathleen D. Hart, Interim City Clerk City of Palm Springs City of Palm Springs 3200 East Tahquitz Canyon Way 3200 East Tahquitz Canyon Way Palm Springs, CA 92262 Palm Springs, CA 92262 Re: Proposed Ordinance to Change Zoning for Oswit Cone Area (APN 513-460-001, 513-460-003, 513-460-010 and 513-460-033) Dear Honorable Mayor, Council Members and City Clerk: This firm represents 4348 Lockwood Ave., LLC; Michael Cole, Janet Cole, and Jogesh Kumar Vashisht and Sunita Kumar Vashisht, Trustees of the Vashisht Family Trust (collectively, the "Owners") who are the owners of approximately 117 acres situated north of the Bogert Trail 1900 Mein Street,Suite 700.Irvine,CA 92614-7328 1 T 949.851.9400 1 F 949.8511554 1 ptwww.com PALMIERI TYLER Hon. Mayor Robert Moon February 27, 2017 Page 2 and to the west of South Palm Canyon Drive, APN 513-460-001, 513-460-003, 513-460-010 and 513-460-033 (collectively, the "Subject Property"). We have received notice that at its meeting on March 1, 2017, the City Council will consider adopting an initiative for the purpose of changing the Canyon South Specific Plan for the Subject Property to what the Initiative refers to as "Environmentally Sensitive" zoning (the "Initiative"). The Owners object to the Initiative and to any action by the City and/or the City Council taken in furtherance or in support of the Initiative. More specifically, the Owners object to the Initiative on grounds which include, but are not limited to, the following: 1. The Initiative Violates The Prior Judgment Entered by Riverside Sunerior Court. The City, the Palm Springs City Council and the Owners' predecessors-in-interest are parties to a validation action brought by certain environmental groups entitled Sierra Club, et al. v. All Persons Interested in the Matter of the Redevelopment Plan for Canyon Redevelopment Project, Riverside County Case No. 64715 (the "Validation Action"). The issue of zoning and redevelopment was an integral part of the prior Validation Action. The first paragraph of the complaint filed in that action (entitled"Complaint to Determine Validity of Redevelopment Plan") confirms that the action was brought"pursuant to the California Community Redevelopment Law...and the California Planning and Zoning Law...." The prior Validation Action also encompassed the issues of whether the City's general plan and specific plan were valid. The complaint contained language stating that it"challenges the adequacy of the City's General Plan upon which the Specific Plan and the Redevelopment Plan are based" On or about August 18, 1993, this Court entered a stipulated judgment in the Validation Action, declaring the general plan, specific plan and redevelopment plan "adequate, sufficient, legal and valid in all respects." The Validation Judgment further states: "The City and Agency shall not...take any action related to the development or implementation of the Plan which is not consistent with the provisions of this Judgment ....... (Validation Judgment at p. 24,¶ VI [emphasis added].) Accordingly,the Validation Judgment prohibits the City and the City Council members from taking any action or amending the specific plan, including but not limited to the zoning for the area in which the Subject Property is located, if such action or amendment would be inconsistent with the terms of the Validation Judgment. The Owners presume that the City verified each of the signatures garnered by the Initiative petition in order to confirm that none of those signatories live in the Canyon South Specific Plan area/Oswit Cone area, as that would obviously present a direct conflict of interest. 2024580.1 PALMIERI TYLER Hon. Mayor Robert Moon February 27, 2017 Page 3 Under the terms of the Validation Judgment and the specific plan the Owners currently have the right to build 230 housing units on their property. The Initiative submittal confines that it intends to deprive the Owners of that right by changing the zoning of the area, stating: This initiative would change the zoning of this area, downsizing the number of houses that could be build here from 325 to approximately 6 as would be allowed under Environmentally Sensitive Area—Specific Plan (ESA-SP) zoning. A YES vote would change zoning to ESA-SP. The Initiative therefore proposes to blatantly violate the mandates of the Court's Validation Judgment. Any action by the City, the City Council and/or the City Council members supporting such a violation is unacceptable. The Validation Judgment expressly states that it is "forever" binding on the City and City Council. Moreover, under California law, the Validation Judgment is also binding upon "all persons" and cannot be the subject of a collateral attack. Code of Civil Procedure section 870 provides the following in this regard: ITjhe judgment, if no appeal is taken, or if taken and the judgment is affirmed, shall, notwithstanding any other provision of law including, without limitation, [CCP] Sections 473 and 473.5, thereupon become and thereafter be forever binding and conclusive, as to all matters therein adjudicated or which at that time could have been adjudicated, against the agency and against all other persons and the judgment shall permanently enjoin the institution by any person of any action or proceeding raising any issue as to which the judprrent is binding and conclusive." (Code Civ. Proc., § 870, subd. (a) [emphasis added].) The idea that the zoning for the Subject Property may now be changed directly contravenes the dictates of the Validation Judgment and the specific plan. The Validation Judgment is sacrosanct—it cannot be collaterally attacked or legally altered by means of the Initiative, by the City or by any other means (Cal. Code Civ. Proc. § 870.) If a binding judgment could be altered at the whim of the City or by private citizens, as the Initiative suggests, any court judgment would be rendered ineffective and meaningless. Such a notion clearly contravenes both California law and common sense. California courts have also made clear that the discovery of alleged "new facts" does not provide legal justification for disobeying a validation judgment. (Colonies Partners, L.P. v. Superior Court(2015) 239 Cal.App.4th 689 [discovery of new facts after entry of the validation judgment was irrelevant and that the "notion that matters validated in a validation action may nevertheless be collaterally challenged on the basis of later discovered facts"was unsupported by 2024580.1 PALMIERI TYLER Hon. Mayor Robert Moon February 27, 2017 Page 4 law and "runs squarely afoul of the principle that a validation judgment, once any appeals are exhausted, is forever binding and conclusive."].) Simply stated, any matters that were, or that could have been, adjudicated in the validation action, are encompassed within the Validation Judgment, and any action which contravenes that judgment constitutes an improper collateral attack on the judgment. (See, Colonies Partners, L.P. v. Superior Court(2015)239 Cal.AppAth 689.) 2. The City,City Council and City Council Members Are Obligated to Comply With and Uphold a Court's Judgment. The City and the City Council are direct parties to the Validation Judgment and have been fully aware of its existence since 1993. Indeed,the City has previously acknowledged in writing the restrictions imposed upon it by the stipulated Validation Judgment. The 2003 amendment to the Specific Plan recites 2: Additionally, the Specific Plan is governed by a Stipulated Judgment? which addresses and controls certain aspects of development within the Specific Plan boundary. These issues are particularly associated with conservation of the west end of the Specific Plan boundary, within the foothills of the San Jacinto mountains,and development restrictions on the eastern end of the Specific Plan area, in and adjacent to the Palm Canyon Wash. All components of this Specific Plan conform to the Stipulated Judgment.The City is committed to reviewing all proposed plans, permits and other entitlements to ensure that the City complies with all terms of the Stipulated Judgment. A copy of the Stipulated Judgment is available at the City of Palm Springs. The City and the City Council thus have an affirmative obligation to protect the integrity of the Judgment and to comply with its obligations. We would also remind you that California courts have made clear that the City and City Council are required to discharge their responsibilities with the utmost fidelity and integrity. Unfortunately, it would appear that the City is now contemplating engaging in the same type of inappropriate conduct for which it was already rebuked by the California Court of Appeal in City of Palm Springs v. Living Desert Rescue (1999) 70 Cal.App.4th 613. That case involved the City's decision to renege on a prior promise made to a real property donor about the manner of future use of property. The court in that case noted the"disturbing regularity" with which the City reneged on such promises and the City's "unfair and unseemly tactics"when it "unilaterally renounced" its earlier agreement. The facts and circumstances here are even more compelling and more egregious here, especially in light of the fact that a binding court judgment is involved. 2 The term "Stipulated Judgment" is defined in a footnote to the 2003 amendment to the Specific Plan as the "'Stipulation for Entry of Judgment,' Sierra Club, et al. vs. Canyon Development, et al. August 1993"—which is the Validation Judgment referenced herein. 2024580.1 PALMIERI TYLER Hon. Mayor Robert Moon February 27, 2017 Page 5 3. The Owners Have Complied With Their Obligations Under the Validation Judgment and the Specific Plan,to the Benefit of the City and Its Citizens. During the 24 years that have elapsed since the issuance of the Validation Judgment, the Owners have fully complied with the Validation Judgment and have set aside almost half of their property as restricted area/open space —meaning that they are prohibited from building or developing a significant portion of their 117 acres for the benefit of the City and the residents of the City as a whole. The City and the citizens of the City have therefore reaped the benefits of the settlement reached in the Validation Action, as reflected in the Validation Judgment. Now, after reaching a deal which required the Owners to give up their property rights in exchange for the right to develop the 230 homes on the Subject Property,the City and City Council are threatening to violate the Validation Judgment and to change the zoning for the Subject Property. Doing so would render the Subject Property virtually unusable for the Owners' planned residential housing project and would result in an unfair deprivation of the Owners' constitutional property rights. The Initiative cannot be reconciled with the Validation Judgment under any scenario. There is also no basis under California law which would excuse the City, City Council and/or the members of the City Council from disobeying a legal and binding court judgment. The Owners request that this letter be included as part of the formal record for the City Council meeting on March 1, 2017 and in any proceeding by the City to adopt an ordinance purporting to change the zoning for the Subject Property. Very truly yours, Patrick A. Hennessey PAH:emk cc: Mr. Marcus L. Fuller, Asst. City Manager Douglas C. Holland, Esq., City Attomey 2024580.1 Terri Milton From: Kathie Hart Sent: Saturday, March 04, 2017 1:08 PM To: Terri Milton Subject: FW: Luckinbill to Moon Yes Please scan it for the record for that meeting .Gt - Kathleen D. Hart, MMC Interim City Clerk G CITY OF PALM SPRIPIGS/ Like no place else to uvi City of Palm Springs n (760) 323-8206 3200 E. Tahquitz Canyon Way & (760)322-8332 Palm Springs,CA 92262 7�1 Kathie.Hart@PalmSpringsCA.gov City Hall is open 8 am to 6 pm, Monday through Thursday, and closed on Fridays. From: Terri Milton Sent: Wednesday, March 01, 2017 5:58 PM To: Cindy Berardi; Kathie Hart Subject: FW: Luckinbill to Moon Public Comment for Monday night? From: Laurence Luckinbill [mailto:la11134(@gmail.coml Sent: Tuesday, February 28, 2017 8:28 AM To: iudy(bjudydeertrack.com; Terri Milton; frank tysen; Lucie Luckinbill; Don Amendolia; Robert Moon; Geoff Kors Subject: Fwd: Luckinbill to Moon one response to my letter from a lover of our city! ---------- Forwarded message ---------- From: Bradley <oltmusickaol.com> Date: Tue, Feb 28, 2017 at 8:13 AM Subject: Re: Luckinbill to Moon To: Laurence Luckinbill <1e11134Ca gmail.com> Cc: Robert Moon<Robert.Moon(ir i)almst)ringsea.pov> Dear Lary: It's not a pipe dream. 50% of America and citizens abroad are screaming at the top of their lungs for a drastic and immediate change. What you are proposing is simply razing a building. (Think 9-11). Dismantling John Wessman's pile in the center of one of the most beautiful cities in America and the world would show what makes America great. We are problem solvers. We fix mistakes. We have the inner freedom to innovate and the i flexibility of thinking to stand back and change course midstream. How far back do we need reminders? 1776? How about the 1950s and 60s. Oh, wait, we just wholeheartedly celebrated those artists and architects who built this legacy. I shared with you that when I am in Rome and other places in Europe part of the year, when I tell people I also live in Palm Springs, there is an almost hallowed hush, an aura of wonder and awe. Palm Springs is revered...and this is in the city which houses the Pantheon, the Coliseum and The Sistine Chapel. The great monuments to humanity were built from the material of previous generations. Pope Julius II had the balls to raze Constantine's 1000 year old building which allowed for Bramante, Michelangelo, Maderno, Bemini others to create the masterpiece that stands today. Were the great living architects of today given the chance to leave a legacy like those we just finished celebrating last week? You and Lucie are Palm Springs royalty. People will listen. Look at what Lucy and Desi, Frank, Bob and Walter built from nothing, from a desert. Now look at what HE built. I can't even say his name. Don't stop screaming it. TEAR IT DOWN. TEAR IT DOWN. TEAR IT DOWN. It's more than a metaphor for dramatic and visible change. It's an opportunity to show the world and narcissists all over the world how beauty, truth and goodness work. Saint Teresa of Calcutta said, "Love is an action. Love to be real must hurt. It must empty us of ourselves." If we (the elected officials we pay to do our will) love this city, it's time to get out of our own way and continue the task of making Palm Springs Palm Springs. Keep up the great and good work Larry. You are a light in the darkness and a voice of reason in these insane times. Yours truly. Bradley Sent from my iPhone On Feb 27, 2017, at 3:09 PM, Laurence Luckinbill <1 1¢ 1134kgmail.com> wrote: You were missed at the event--Lucie showed a great personal video of her family's adventures in Palm Springs in that dashed decade--the 60's! Heard you dressed for the 70's at the Mizell--another decade I'm kind of glad not to relive... Ha! have only 2 questions for the rally tonight at the Convention Center (I am previously committed to the Israel Cancer Research Fund event ): 1 . What is the real reason the Council would think of handing over to the son-in-law of the innocent-until- proven-guilty man who is indicted on suspicion of bribing folks to move and shake the downtown project his 2 way? Wouldn't you folks in City Council have a logical suspicion that the "Senior vice-president" of his company might conceivably be implicated? And even if not, why go ahead with a project that is roundly disliked, even despised--by a very substantial portion of your voters--and is, moreover, out of control (I refer to the costs and the designs)? 2. What is the real reason the project cannot be razed in short order, and a new, fabulous, game-changing First- Class Project (a company with a proven track record of successful Urban Renewal Design) arise out of the rubble in a fraction of the time Wessman has allegedly spent playing $$$ games with Pougnet and with the city's (I mean--our) $$$? You see, I am still pleasantly pipe-dreaming here, and romantically thinking of a city brought into the 21 st Century and beyond which would--by its design, amenities, and cultural opportunities for entrepreneurship of a high order-- attract visitors in vast numbers--beyond Modernism, beyond the Film Festival, beyond all--who will come just to bask in "This is Palm Springs? Wow!" I think that is a realistic, and pretty hard-headed, tough pipe-dream. But that's how I think about Other People's Money (meaning--ours). Getting the absolute best for the city, using the city's so-far good reputation and clout. The unfortunate part is that I personally can't fund such a magnificent dream. But if I could....I wouldn't let this town languish in 1960's building designs meant for old-hat towns already out-of-date as they are built--which is what you've got. The folks who pay the taxes here now are way ahead of you on that. 3 You smart folks at City Hall ought to be thinking beyond this dowdy, creepy "Thing" you are allowing to inhabit the heart of Our Town. I ask in seriousness, and in friendship, and in the knowledge that you have a truly good heart and spirit in these things, Robert. Sincerely, Larry (Laurence Luckinbill). H On Mon, Feb 27, 2017 at 12:36 PM, Robert Moon<Robert.Moonkpalmsprin scg a.gov>wrote: I regret that I could not attend this rally. I have been to a large rally in the past and spoken in support of the saving of the location. However Saturday I went straight from Black History parade and event to officiating a wedding at the Sinatra House to attending the Mizell Center Gala. I did not have any time available to be there, or I would have attended. Also,Jane did not tell me about it until the day before. Rob From: laurence Luckinbill [mailto:lgl1134@gmail.com] Sent: Saturday, February 25, 2017 3:23 PM To: Robert Moon <Robert.Moon@DaImspringsca.gov> Subject: Re: Luckinbill to Moon Thanks. See you later today at the Oswit Canyon rally-- Lucie has made a wonderful surprise--home movies of her family--early days in Palm Springs! Our connection here 4 has deep and legitimate roots. I was not outraged--far from it--a little nonplussed--but what its "plussed," anyway? Larry On Sat, Feb 25, 2017 at 1:31 PM, Robert Moon<Robert.Moongpalmsnringsca.gov>wrote: Thanks. I have a FULL "mayoral duties" day today and will study your response tomorrow morning. I just returned from the Black History celebration, now dressing to officiate a wedding at the Frank Sinatra House, and then another 'costume" change for the Mizell Gala this evening. Judy Deertrack said I was disrespectful to you in my last response. If that is how you perceived it, I sincerely apologize. I did not mean to be in any way disrespectful,just direct. I will be careful when I respond to this latest correspondence not to write anything that could in any way be taken as anything other than a respectful dialogue. I deeply respect you and Lucy and appreciate all you do for our community, however on some particular issues we will just have to agree to disagree. On this particular issue our opinions just happen to be currently be rather far apart. However, on the subject general direction we need to move our city going forward, I think we will have a more common ground. Best regards, Rob ROBERT MOON MAYOR 5 City of Palm Springs Tel: (760) 323-8200 3200 E. Tahquitz Canyon Way Fax: (760) 323-8207 Palm Springs, CA 92262 TDD: (760) 864-9527 www.palmspringsca.gov Robert.Moon(iDpalmspringsca.gov Sent from my iPad On Feb 25, 2017, at 10:22 AM, Laurence Luckinbill <1 11�134(ce gmail.com> wrote: Dear Robert: Thanks for your response. Sincere thanks for your military service. Thanks for your good heart and good intentions in re the City of Palm Springs. And for your many good acts in concert with the expressed desires of "We, the people" toward our city. You suggest that I get on board with ' Us meaning you, the Council, the city government, in order to understand your problems. My original letter was meant to let you know that am on board--and it's my watch, too.. "Us," IS "We, the people." That is to say, that the prime obligation of the City Council is to protect the City and all of its citizens. We are You--You are Us. The qualitative difference is that We have hired You to lead Us. So, what We think of the job you do, is 6 paramount. Prime. Operational. Of course this is all too, too complicated--and this isn't a class in ethics or philosophy--just a further reminder to you and Council and the managers and lawyers who are presently tasked with running the city, that your tenure is temporary. It will likely be extended if you do a man-sized job of saving the city from corruption of every kind--that is the looming task now--and if you also take on the huge responsibilities of explaining to and informing the public--Us--of the workings and challenges and compromises and of the dances with the devil that you must do in the course of doing the job we hired you to do. That is, of course, complicated by the ever-present fact that generally, the people have slept through the "how-to" class, but if we do show up to vote, even in our meager, ill-informed numbers, we still do expect you to protect us and the city and to make it all better to the outside limit of your strength. Impossible? Maybe. And we Will Have It. That is your problem--the one you took on by running for office. And that is simple democratic justice, if you like. When I was an officer in the United States Army- -and you were 15 years old--I, too, subscribed to exactly the same aspirations that you mention. And I still do. Even more so now, since, at 82, 1 know much more powerfully and vitally that "Duty, Honor, Country," are the lifeblood of the democracy we hold, precariously, in our very own hands--each and every one of us. And I recognize that patriotism is not being trained to adore a flag--or even to be prepared to die for my country--which I was-- and thankfully never faced that actuality as many of my friends did--and did. Patriotism is all that and also paying attention daily to the business of democracy. "Think globally, act locally," said Abby Hoffman. (You were about, what, 17, 18?). Remember him? A gadfly, a gnat, a "nasty" man, who insisted on the letter of democracy. He wasn't even fair--he could not stand it that his government was so screwed up, so he did "bad" things--he was a "bad hombre." I'm not. But I live here. I read. I study. I question. I don't just Exist. I don't assume that the myriad challenges you speak of with regard to the running of a city like this with limited resources and the many, many necessities crying for attention daily is simple, or that hard compromises must be made daily to address them. Lyndon said, "Politics is the art of the possible." But compromises must be made with the welfare of the commonweal in mind first. I criticize--all in a spirit of hope that, as Hamlet reminds himself, "The insolence of office" will not infect our local government. It does, in fact, now 8 threaten to take over the current regime in Washington, and that example will likely "trickle- down" to infect all government in time. The motor is greed, the mode is disregard for truth and ethics, the trigger is the supposed ignorance of the intended victims--the public. Contrary to what you seem to believe, I'm not a "Romantic" in any way, shape or form. (Well, no, I lie--I am romantic about my wife--and my children!). But I don't look for a return to the-- ugh--60's--with Frank and Dean and cigarettes, and booze and ladies of the evening in every "cool cat," lounge bar in town. Not my scene, man. (Vietnam? The Best and the Brightest? Napalm? Agent Orange?) No period in American--or any--history--was "relatively innocent." You wrongly ascribe to me today's nostalgia for the past. Also not my groove, cat. No, my desire for a city renewal is based on the elements of nature that inform every breath we take here in this beautiful and yes, sacred, place. Our forebears here knew just how important the earth, the sky, the mountains, the water, the flora and fauna of this desert were for survival. They still are. And we ignore this fact at the peril of the soul of this town. Romantic? No, actual fact. Not alternative "fact." We need to honor this fact, not let it slip away in the scrum of development. 9 Some developers could give a shit about any of the malarkey in my previous paragraph. But look at the Mess you--WE--now have because attention was not originally paid--the attention was all to the developer and to money--not to town, beauty, renewal--and certainly not to simple common sense. Not really to "the people" but to "consumers." Not to "citizens" but to Blocks and Sections. And "bed taxes." And the businessmen of downtown signed on because they saw it as salvation--they, too, are victimized by this poor excuse for a new town that is sitting there now overbearing all common sense. I know about Section 14's blighted past. Was that because poor black and brown people with few options encamped there? Was that because developers didn't want that land, because they saw it as an eviction problem not worth the cost? I'm from New York, Robert, I know all about urban development from a standpoint of vast, endemic development corruption by people like Fred Trump. Why would a city in enlightened California today choose such folks as they have to re-do itself? A question that remains unanswered by your letter. It's still the elephant in the room. But maybe the elephant hunters in the AG's office are still out there in the bush, tracking. One can hope. 10 It's simple, Robert--architecture arises from ambience--from the environment--it does not seek to destroy it. It's not really a "pleasant pipe dream" to start over. It could be accomplished in a twentieth of the time already spent in wrong pursuit of favors, and delays meant to punish the city and the businessmen who maintain its lifeblood, and the people who have dared to question how things ran amok. Who really know exactly where Mrasure J's money is? Do you, exactly? The cost over-run of the Downtown Project, as I read, is $350 Million dollars now-- against an original estimate of $110M or thereabouts. How is that a savings, as you assert? Whose fault is that? Just asking. Let's get get down to business here: We disagree on much, and we are having a civil discussion about it. That can only be good--if perhaps time-consuming. But what is time? As Darrow says, "In eternity, isn't one minute as much as a thousand years?" (And yes, I do know Darrow and love Darrow). You support much that I believe in. I admire your conviction that some developments are deathly stupid and dangerous (viz, Oswit Canyon Development). However! The Council has much work to do to repair past Messes. If you 11 think that it's a pipe dream to try to raze ugly buildings and start over--I disagree. If there are convictions in the current Mess, then Council cannot simply hand back to the same company which ran amok, the keys and the rewards of fixing the downtown. Can it? It had better not. "That would be scanned," again, Hamlet. Yes, I know and love Clarence Darrow--a flawed man who never once stopped asking the question: WHAT IS JUSTICE?" His answer was always the same--take on one more pro bono case where the little guy is being railroaded, or one more "villain" who is guilty of a crime but has been driven to it by men much more guilty than he. And try to find out what justice is--if it even exists. Does it exist? If you ask yourself that question, Robert, you will find the only answer is- -what good have I done today for someone who needs good done? We, the people, have all the faults of the mob, or the hypnotized, or the stoned or the drunk or the foolish and concupiscent. We also can surprise with the beauty of our common sense--that applies to every one regardless of party or creed or color or orientation in any direction. You are either one of us or you are a fool--thinking the office has given you some perch from which you can judge and legislate. 12 I KNOW that is not YOU. That's why I challenge you to LEAD. Not because I think you are not capable, but because I believe you ARE. Why else would I bother to write this letter or any damned letter. Do WORDS MATTER? I believe they do. We need You to step up, Sir: "Duty, Honor, Country, City!" Orders are cut. Report! (in the military, you outrank me, but this is democracy now--we're not behind the plow)... If that's dramatic--well, you get my drift. Again, thanks for this exchange--it could be the start of a beautiful relationship--with a new, beautiful City of Palm Springs! Great Regards, Laurence Luckinbill (1st Lt. USA/USAR, Chemical Corps, 1956-1963). 13 Judy Deertrack 1333 South Belardo Road, Apt 510 Palm Springs, CA 92264 Monday, February 27, 2017 DEMAND LETTER TO IMMEDIATELY PROTECT AND REMEDIATE THE PUBLIC INTEREST (1) BY DISCONTINUING ALL FURTHER BUSINESS DEALINGS WITH JOHN WESSMAN AND HIS ASSOCIATES AND BUSINESS ENTITIES IN LIGHT OF PENDING CRIMINAL INDICTMENTS; (2) BY ACTING FULLY UPON THE PERFORMANCE OBLIGATIONS OF THE PROJECT FINANCE AGREEMENT TO REMEDIATE ILLEGAL AND UNFAIR PROFITS TO MR. WESSMAN; AND TAKE ALL NECESSARY STEPS TO INITIATE LITIGATION OR INJUNCTIVE ACTION, AND ASSUME CONTROL OF THE DOWNTOWN PLAN PROJECT; (3) BY PLACING THE PUBLIC FINANCING, PRIVATE AND PUBLIC ESCROW ACCOUNTS AND ANY AND ALL CHANGE ORDERS, SUBSIDIES, OR OTHER PUBLIC FUNDS IMMEDIATELY UNDER THE JURISDICTION OF A SPECIAL MASTER UNTIL THE FUNDS CAN BE PROTECTED AND FULLY REMEDIATED; (4) BY ACTING TO PROTECT MUNICIPAL BOND HOLDERS INVESTMENT IN THE MMPSP DOWNTOWN PLAN; (5) BY CONDUCTING AN IMMEDIATE INVESTIGATION OF THE STATUS OF THE DOWNTOWN PLAN PROJECT; TO SECURE FULL ACCOUNTINGS OF EXPENDITURE OF PRIVATE AND PUBLIC FUNDS, AND THROUGH A DETERMINATION OF THE REMAINING COST OF CONSTRUCTION UNDER PENDING PERMITS; (6) BY APPOINTING A SPECIALIST"CONSTRUCTION ENGINEER" OR "CONSTRUCTION MANAGER" TO IMMEDIATELY ASSUME CONTROL OF THE PROJECT FOR THE PURPOSE OF ADVISING THE CITY COUNCIL ON FINANCIAL AND PROJECT OPTIONS; (7) BY APPOINTING AN IMPARTIAL ADVISORY BODY TO FULLY INVESTIGATE MISCONDUCT WITHIN THE COUNCIL, COMMISSIONERS AND ADVISORS TO THE CITY AND EXPLORING PAST CONFLICTS BY DETERMINING WHETHER VOTING OR ADVISORY OFFICIALS WERE APPROACHED WITH THE INTENT OF INFLUENCING THEIR VOTE, WHETHER THE IDENTIFIED PERSON REPORTED THE CONTACT, AND WHETHER SUCH PERSONS SHOULD BE RELIEVED OF THEIR POSITION. To the City Council Palm Springs, California RE: SPECIAL STUDY SESSION, DISCUSSION OF MOVING FORWARD PALM SPRINGS DEVELOPMENT PROJECTS, INCLUDING DOWNTOWN REVITALIZATION: RECOMMENDATION: To the Members of the City Council: The indictments that now stand from the FBI Public Corruption Task Force and District Attorney's Office against ex- Mayor Steve Pougnet, Downtown Developer, Jahn Wessman, and Mr. Wessman's business partner, Rich Meaney, illustrate clearly that public officials sitting on ALL THREE HEARING AND ADVISORY LEVELS of the City Council, Planning Commission, and Architectural Advisory Council, were approached either directly by Steve Pougnet, or others working on his behalf, prior to the hearings or public meetings, to vote by influence and request rather than by evidence presented on the record. It was a widespread practice, and at the minimum the following projects were implicated by express mention in the indictments; 1/ All Project Finance Agreements, permits, and ancillary actions under the Museum Market Plaza Specific Plan; 2/ Hacienda Cantina (Wessman and Meaney); 3/ Dakota Project (Wessman and Meaney); 4/ Pedregal (Wessman); "Ex-parte communications lead to a deprivation of a fair hearing when an administrative body utilizes evidence outside the record to reach a conclusion. See Mathew Zaheri Corp. v. New Motor Vehicle Bd. (1997) 55 Cal.App.4th 1305, 1319. "Administrative tribunals which are required to make a determination after a hearing cannot act upon their own information, and 2 nothing can be considered as evidence that was not introduced at a hearing of which the parties had notice or at which they were present." English v. City of Long Beach (1950) 35 Cal.2d 155, 158." CALIFORNIA FAIR HEARING LAWS California League of Cities (Manual) [ emphasis added] For example, Berkeley Resolution No. 62,571 "Establishing Fair Procedures in Land Use Quasi- Judicial Public Hearings . . ."specifically recognizes that "Council members and Commissioners may receive information relevant to the land use decision by contacts with the parties, the public or staff and are not confined to reading the record or hearing presentations at public hearings." However, the policy requires that if ex parte information is not already in the record, it must be contemporaneously noted by the decision-maker and disclosed at the start of the hearing. Id. [emphasis added] Under no known circumstance is it legal to receive and act upon pressure to vote a pre-determined outcome against and before the evidence. But -- the ex parte communication must also be disclosed on the record as a Fair Hearing requirement. I see NO INSTANCE where a councilperson or commission member EVER declared on the record that Pougnet (or those who aided and abetted him) had solicited their vote. This silence would be in violation of the Fair Hearing Laws. There was a duty to report the contact at the public hearing, and if our council and commission members had reported, this fraudulent practice and pervasive racketeering scheme would have been challenged and probably ended years in advance. The indictment, together with the Press Conference with District Attorney Hestrin show that the "bargain" purchased by Mr. Wessman and Mr. Meaney was an across-the-board "voter influence scheme" that implicated persons beyond the three indicted individuals. The evidence submitted in the indictments show patterns of influence over members of all three boards: Pedregal / Wessman Arrest Warrant, page 5 "On June 26, 2012, a few weeks prior to the City Council's vote on the Pedregal reimbursement agreement, Meaney emailed Wessman stating, "Spoke to Pougnet this morning. We are solid with our 4 votes. I'm calling Hutcheson later to thank for support. Lewin is great. Barons behavior is working in our favor." The vote on the reimbursement agreement was held July 11 , 2012. Councilpersons Mills and Foat voted against the agreement, citing the unfairness and disproportionate treatment of Cunningham. Mills and Foat voted to delay the vote and conduct further research, but that suggestion lost 2-3. Pougnet was a vocal proponent of the agreement. ....Hutcheson and Lewin and Mayor Pougnet voting yes. Vivante /Wessman Arrest Warrant at page 6 On September 17, 2012, Meaney emailed others at Nexus regarding the hearing, "I am out of town but will do my thing before I leave. Pougnet is helping me." When the Nexus employee asked whether they should approach the Planning Commissions in person, Meaney responded, "I'll ask Steve." Pougnet never recused himself. For this potentially implicated City Council to now even consider the possibility of continuing the project with Wessman Corporation or other related entities is deeply problematic, because there is no sign of an outside advisor, except Mr. Jeffrey Rutherford, hired one month ago as a "White Collar Criminal Defense Specialist" with no track record of specializing in Municipal Affairs and representing Cities against possible internal corruption. Accordingly. I make the recommendations in my Demand Letter. My concern is that the orientation of this sitting Council is "defense against indictment" rather than "protection and remediation of the public interest." With regard, Judy Deertrack Kathie Hart From: Tommy Ledwith <thomas_m ledwith@yahoo.com> Sent: Sunday, February 26, 2017 10:02 PM To: Robert Moon;J.R. Roberts;Geoff Kors;Geoff Kors;Ginny Foat Cc: Kathie Hart Subject: Monday study Session To all, The City needs to be cautious: 1.Let the Voters and Tax payers Speak 2. Measure 1 :Pro/Con, Is their Audit or review? 3. Downtown project:Bucket full of questions. 4. YES, it should be televised on Cable.Their are many important reasons why it should be . 5. Open,Transparency,communication is a must . Thank you, Thomas M Ledwith 2701 Mesquite Palm Springs,Ca.92264 Judy Deertrack 1333 South Belardo Road,Apt 510 Palm Springs, CA 92264 Monday, February 27, 2017 DEMAND LETTER TO IMMEDIATELY PROTECT AND REMEDIATE THE PUBLIC INTEREST (1) Enforce the Performance Obligations of the Downtown Plan Project Finance Agreement (PFA) and take control of the Project under Default Powers. This is done with an understanding that the City is not acting at a level of proof imposed upon criminal indictment of "evidence beyond a reasonable doubt." Mr. Wessman should make a full accounting of finances and actions taken to date, and release a schedule of construction within the last six months; (2) Promptly disclose all information to the public on the Downtown Project Timelines, together with a history of past non-performance on missed deadlines; (3) A Construction Moratorium should be put in effect until the City has fully audited and released an accounting to the General Public on (1) existing Project Funds; and (2) expended Project Funds; (3) expected remaining cost of construction on Project "as approved;" (3) status of involved accounts, such as the Measure J Funds, the Municipal Bond provisions, security interests under the Municipal Bond provisions, private escrow accounts, public escrow accounts, grants, subsidies, and change orders. (4) An independent and impartial Task Force should interview and recommend a "Construction Manager" or "Construction Engineer" for immediate hire by the City to assess the status of the Downtown Plan Project, and supply cost, feasibility, and timeline information on the three remaining options: (1) Completion of all buildings under current construction (with the exception of "Lot B" whose construction was recently maneuvered for inclusion, despite ongoing litigation); (2) Completion of all buildings under construction, and re-design of the un-built portions, independent of Wessman Holdings (including Town & Country); and (3) Demolition with full re-design. Of primary import is to correct the City's past actions of permitting projects and buildings that fail to conform to its General Plan, ordinances, programs, procedures, policies, public hearing laws, fair tribunal obligations, and other due process requirements. (4) Immediately assess potential damage to public funds and subsidies, and take all required legal and administrative actions to remediate damage to the public interest, including protection of public funds for future expenditures and actions; (5) Appoint an independent and impartial body or Special Master, with special expertise, at the recommendation of the Riverside County District Attorney's office, to act as a professional liaison between the City and the Public Corruption Task Force (County, State, and Federal Agencies) involved in indictments and potential remediatlon under Government Code 1090, and other statutory provisions invoked to protect the public interest; (6) Notify holders of the Municipal Bonds implicated in the indictments of potential exposure, and provide the bond holders all necessary information on the Downtown Project performance obligations, costs-to-date, construction schedule, anticipated remaining cost, and ability to complete the project with current financing, in order to address the bond investment exposure from any risks of non-completion or compromise of security interests; (7) Appoint an independent and impartial body to investigate and interview all members of the City Council, Planning Commission, and Architectural Advisory Body, and any other advisory bodies that provide recommendations or data to the City Council and decision-makers — to determine whether such members were approached by any city officials or city employees and/or contractors, or developers and their representatives, for the purpose of influencing the vote on pending permits and/or contracts. The Advisory Body should make recommendations to the City on violations of law, remediation, and possible dismissal of members. To the City Council Palm Springs, California RE: SPECIAL STUDY SESSION, DISCUSSION OF MOVING FORWARD PALM SPRINGS DEVELOPMENT PROJECTS, INCLUDING DOWNTOWN REVITALIZATION: RECOMMENDATION: To the Members of the City Council: 2 -2.7-- 2_n q AA j i-b V'_-Kal Ma+e-"41 , 2 The greatest existing obligation of the City is to ensure that before decisions are made on the Downtown Plan, the City and the General Public have a complete range of information on -- Project Financing, Expenditures-to-Date, Cast-of-Project-Completion as designed, escrow fund status, construction schedule, past Construction Schedule (especially the last six months), history of developer defaults on the Project Finance Agreements (with explanations of cause) and ability to perform in full. Without this information, which will require an independent and highly experienced Construction Manager and Independent Team approach, the City's position to proceed with Wessman Corporation is gravely premature and without analytical support. Of particular concern are the Municipal Bonds, which secure and repay the Measure J Expenditures at $3.3 Million per year for (20-25 years), covering the $47M released into private and public escrow accounts. The Municipal Bond Holders are investors in this project, and the City owes them a strong fiduciary duty of notice and information, not the least, if there is a PAYMENT DEFAULT on the bonds for failure to complete the project, the City's General Fund may be implicated to restore the investment, depending upon how tightly and carefully these points were covered in the Bond Agreements. The City has come out with strong declarations of what can and cannot happen, what should or should not now occur — in an abysmal void of information. What in-depth Project Feasibility Assessment has either been requisitioned or accomplished to date? None whatsoever. My concern is that the current City Council is in a classic conflict of interest between possible implication in negligent behavior (or worse), which would suppress the development of public information; and the clear obligation to move strongly and aggressively in the public interest. The indictments that now stand from the FBI Public Corruption Task Force and District Attorney's Office against ex- Mayor Steve Pougnet, Downtown Developer, John Wessman, and Mr. Wessman's business partner, Rich Meaney, illustrate clearly that public officials sitting on ALL THREE HEARING AND ADVISORY LEVELS of the City Council, Planning Commission, and Architectural Advisory Council, were approached either directly by Steve Pougnet, or others working on his behalf, prior to the hearings or public meetings, to vote by influence and request rather than by evidence presented on the record. The voting scheme was a widespread practice, and at the minimum the following projects were implicated by express mention in the indictments; 1/ All Project Finance Agreements, 6-8 individual lot permits, and ancillary actions under the Museum Market Plaza Specific Plan (Wessman); 2/ Hacienda Cantina (Wessman and Meaney); 3/ Dakota Project (Wessman and Meaney); 4/ Pedregal (Wessman); 5/ Vivante (Meaney); 6/ Morrison (Meaney); Casa del Camino (Meaney); 7/ Prairie Schooner Lots (Meaney). The California Fair Hearing requirements place stringent public protections into place that prohibit inappropriate ex parte contacts prior to hearings, and include "disclosure" transparency provisions: "Ex-parte communications lead to a deprivation of a fair hearing when an administrative body utilizes evidence outside the record to reach a conclusion. See Mathew Zaheri Corp. v. New Motor Vehicle ed. (1997) 55 Cal.App.4th 1305, 1319. "Administrative tribunals which are required to make a determination after a hearing cannot act upon their own information, and nothing can be considered as evidence that was not introduced at_a_hearing of which the parties had notice or at which they were present." English v. City of Long Beach (1950) 35 Cal.2d 155, 158." CALIFORNIA FAIR HEARING LAWS California League of Cities (Manual) [ emphasis added] For example, Berkeley Resolution No. 62,571 "Establishing Fair Procedures in Land Use Quasi- Judicial Public Hearings . . ."specifically recognizes that "Council members and Commissioners may receive information relevant to the land use decision by contacts with the parties, the public or staff and are not confined to reading the record or hearing presentations at public hearings." However, the policy requires that if ex parte information is not already in the record, it must be contemporaneously noted by the decision-maker and disclosed at the start of the hearing. Id. [emphasis added] The rules of law and ethics prohibit receiving and acting upon pressure to vote a pre-determined outcome against and before the evidence. But -- the ex parte communication must also be disclosed on the record as a 3 Fair Hearing requirement. I see NO INSTANCE where a councilperson or commission member EVER declared on the record that Pougnet (or those who aided and abetted him) had solicited their vote. This silence would be in violation of the Fair Hearing Laws. There was a duty to report the contact at the public hearing, and if our council and commission members had reported, this fraudulent practice and pervasive racketeering scheme would have been challenged and probably ended years in advance. The indictment, together with the Press Conference with District Attorney Hestrin show that the "bargain" purchased by Mr. Wessman and Mr. Meaney was an across-the-board "voter influence scheme" that implicated persons beyond the three indicted individuals. The evidence submitted in the indictments show patterns of influence over members of all three boards: Pedregal /Wessman Arrest Warrant, page 5 "On June 26, 2012, a few weeks prior to the City Council's vote on the Pedregal reimbursement agreement, Meaney emailed Wessman stating, "Spoke to Pougnet this morning. We are solid with our 4 votes. I'm calling Hutcheson later to thank for support. Lewin is great. Barons behavior is working in our favor." The vote on the reimbursement agreement was held July 11, 2012. Councilpersons Mills and Foat voted against the agreement, citing the unfairness and disproportionate treatment of Cunningham. Mills and Foat voted to delay the vote and conduct further research, but that suggestion lost 2-3. Pougnet was a vocal proponent of the agreement. ....Hutcheson and Lewin and Mayor Pougnet voting yes. Vivante /Wessman Arrest Warrant at page 6 On September 17, 2012, Meaney emailed others at Nexus regarding the hearing, "I am out of town but will do my thing before I leave. Pougnet is helping me." When the Nexus employee asked whether they should approach the Planning Commissions in person, Meaney responded, "I'll ask Steve." Pougnet never recused himself. For this potentially implicated City Council to now even consider the possibility of continuing the project with Wessman Corporation or other related entities is deeply problematic, because there is no sign of an outside advisor, except Mr. Jeffrey Rutherford, hired one month ago as a "White Collar Criminal Defense Specialist" with no track record of specializing in Municipal Affairs and representing Cities against possible internal corruption. Accordingly, I make the recommendations in my Demand Letter. My concern is that the orientation of this sitting Council is "defense against indictment" rather than "protection and remediation of the public interest." With regard, Judy Deertrack