Brian Davies

To: Subject: Roxanne M. Diaz RE: Item No. 7 2004-3 Petition approval. Fees must be waved.

From: Roxanne M. Diaz [mailto:RDiaz@rwglaw.com] Sent: Friday, October 25, 2013 3:44 PM To: 'Brian Davies' Subject: RE: Item No. 7 2004-3 Petition approval. Fees must be waved. Thanks
From: Brian Davies [mailto:b.daviesmd@gmail.com] Sent: Friday, October 25, 2013 3:29 PM To: Roxanne M. Diaz Cc: brian ([No email address found]) Subject: Item No. 7 2004-3 Petition approval. Fees must be waved.

Subject: FW: Item No. 7 2004-3 Petition approval. Fees must be waved. See below. From: brian davies [mailto:briandaviesmd@gmail.com] Sent: Monday, October 14, 2013 2:01 PM To: EholmesinIndio@gmail.com; Wilson4indio2010@aol.com; AscencionTorres@yahoo.com Cc: lramoswatson@indio.org; gmiller@indio.org; danmartinez@indio.org Subject: Item No. 7 2004-3 Petition approval. Fees must be waved.

RE: APPROVAL OF THE RMA PETITION WITH FEES. THE FEES MUST BE WAVED. THE CODE USES MAY WITH REGISTERED VOTERS AND SHALL WITH LANDOWNERS [DEVELOPERS]. THE CITY WAVED THE FEES ASSOCIATED WITH THE FORMATION. Dan, We received the proposed recommendation from the City Attorney that there is $77,000 that must be prepaid into an account before the RMA amendment process may proceed. Requiring the CFD 2004-3 Improvement Area 1 homeowners to pay $ 77,000 to Petition the Mello Roos is clearly unconscionable. We asked for the fees to be waved, and with all the misdeeds, they should be. There are Construction Funds that maybe used. I have consulted with two Bond Attorneys, who confirm the money may come from the construction fund, which has over $700,000.00 Again we request an outside consultant, and not the biased City Attorney. The CFD 2004-3 District suffered when the City appointed the CFD 2004-3 District Counsel who was dating the Developers agent who
1

Petitioned for the Mello Roos. The City has a fiduciary duty. I believe you are breaching this duty by not bringing in a true independent Bond Counsel. The City Attorney says that the funds [$77,000.00] must come from the petitioners. That is untrue the City may wave such fee. Read the code. This is not a petition of the land owners, it is a petition of the registered voters. The code uses the word shall with landowners and may with registered voters. Again we need another Independent Bond Counsel to review these documents. Besides not being proficient in the complexities of this offering, the attorney is interacting and negotiating with the issues of Area 2. [1] California Government Code Section: 53332. (a) If a petition signed by 25 percent or more of the registered voters residing in the district, [[or by the owners of 25 percent or more of the land within the district not exempt from the special tax]], is filed with the legislative body requesting that proceedings be commenced to change the types of public facilities or services financed by the district or that the rate or method of apportionment of an existing special tax be changed, or that territory to be removed from the district, or that a new special tax be levied, the legislative body shall within 40 days of the payment of the fee determined under subdivision (b) adopt a resolution of consideration in the form specified in Section 53334 to make those changes within the community facilities district except that an existing special tax being used to pay off any debt incurred under this chapter shall not be reduced or terminated if doing so would interfere with the timely retirement of that debt. (b) Upon receipt of any petition filed by landowners under this section, the legislative body shall, within 45 days, determine the amount of a fee sufficient to compensate the local agency for all costs incurred in conducting proceedings to change the district pursuant to this article. Upon receipt of any petition filed by registered voters under this section, the legislative body may determine the amount of a fee, within 45 days, sufficient to compensate the local agency for all costs incurred in conducting proceedings to change the district pursuant to this article. [2], [3] Further Section 5 under Resolution No. 8956 clearly states that: Section 5., Except where funds are otherwise available [construction fund or from the payments from the Mello Roos], it is the intention of the Council to levy annually in accordance with procedures contained in the Act a special tax (the "Special Tax") sufficient to pay for the costs of financing the acquisition and/or construction of the Facilities, including the principal of and interest on the bonds proposed to be issued to finance the Facilities and other periodic costs, the establishment and replenishment of reserve funds, the remarketing, credit enhancement and liquidity fees, the costs of administering the levy and collection of the Special Tax and all other costs of the levy of the Special Tax and issuance of the bonds, including any foreclosure proceedings, architectural, engineering, inspection, legal, fiscal, and financial consultant fees, discount fees, interest on bonds due and payable prior to the expiration of one year from the date, of completion of facilities (but not to exceed two years), election costs and all costs of issuance of the bonds, including, but not limited to, fees for bond counsel, disclosure counsel, financing consultants and printing costs, and all other administrative costs of the tax levy and bond issue. Other Possible Uses. Under the law related to the formation of community facilities districts, the City may seek to change the permissible use of the Bond proceeds to include other public facilities.
2

This will, however, require an election and a possible landowner protest. Monies in the Surplus Fund may be applied to any lawful purpose of the District. Bond proceeds are to be expended for District purposes in accordance with the Resolution of Formation, RMA and bond documents. Clearly the Construction Fund may cover this cost the money is in the fund. I want to add for reference the Tract Map for 31601-1. Lots D thru F are private streets. See Owners statement Tract Map 31601-1. DRE has them as private streets. See also: other private notices of completion (NOC) thru the DRE. I would review these as they are also in our private community. I would also review those public facilities which were reimbursed and prove them up with titles of ownership as outlined in the bond offering.

In summary, I ask that the Mello Roos fees to petition, be waved. That the Petition process continue, and that an independent Bond Counsel review these issues. Further any negotiations with the Improvement Area 2 owner/developer/co-operating entity, be transparent, and inclusive of the Improvement Area 1 homeowners. Best, Brian 949-903-2986

NOTICE: This communication may contain privileged or other confidential information. If you are not the intended recipient of this communication, or an employee or agent responsible for delivering this communication to the intended recipient, please advise the sender by reply email and immediately delete the message and any attachments without copying or disclosing the contents. Thank you.
[1]

This opens the City to being questioned of a cover up or other self-dealings at the benefit and enrichment of the city and the Area 2 developer while at the expense and detriment to the Improvement Area 1 homeowner. All along knowing the wrongful issues, while intending to act on them and create a story in which the Improvement Area 1 homeowners will act based on the information, and be further damaged.
[2] [3]

Shall, must used in law where the sense, purpose, or policy requires this interpretation. May, can --used to indicate possibility or probability <you may be right> <things you may need> ; sometimes used interchangeably with can <one of those slipups that may happen from time to time Jessica Mitford> ; sometimes used where might would be expected <you may think from a little distance that the country was solid woods Robert Frost>