Note: Steve Paige has been busy looking at the assessment issues the county is now involved in for the Los Osos Wastewater Treatment Project. He's posted some of the related documents at http://www.esnips.com/web/shpaigesWebResearch on the Proposition 218 assessment vote -- his annotated"Prop 218 Hurdles and Challenges pdf" and the new "County Moritorium Agreement pdf." His comments posted with permission.
The newly formed TAC will be looking over "financial" issues as well as "engineering" issues. I'm sure Steve will supply them with his detailed critique of the assessment issues so there'll be another set of eyes on the page. HOW the 218 vote is structured will be important. Plus, if there were any problems with the old method of Assessment, or old data or old anything, I hope it'll be cleaned up before the new assessment process or else somebody'll call a lawyer. As for breach of fiduciary duty . . . that's a lovely exemption. And, for anyone subject to the new deed restriction agreement, that one's interesting as well. And so it goes . . . (Italicized portions of Steve's text originally highlighted in red.)
How to use your rose colored tax glasses.
By Steve Paige
Putting on your rose colored 218 tax vote glasses I invite you to follow the trail of the Counties manipulation of the 218 vote before the election so that you can be miffed a little bit like me. Originally I gave the County all the good will in the world over the sewer project but I have changed my mind as I look in the darkened legal corners of the County’s project management.
First darkened legal corner we look at with our special 218 tax glasses is the Wallace-County contract to come up with the tax report for the 218 vote. Looks like all the old Tri-W Swiss cheese 218 revenue report is coming baaaaak.
29. County-Provided Data and Services. The COUNTY shall furnish the
ENGINEER available studies, reports and other data pertinent to ENGINEER's services; obtain or authorize ENGINEER to obtain or provide additional reports and data as required; furnish to ENGINEER services of others required for the performance of ENGINEER's services hereunder, and ENGINEER shall be entitled to use and rely upon all such information and services provided by COUNTY or others in performing ENGINEER's services under this Agreement.
I bet the Wallace attorneys started sweating bullets over the documents so the County came up with clause 32 so at least they won’t get sued by the County if the report is pure tax guano. Gee I thought the County was supposed to protect us the taxpayers and prevent the abuses of the last engineers report and revenue stream dog and pony show.
“Not responsible for breach of fiduciary duty” means you can screw up the math in the report and we won’t hold you to it.
32. Standard of Care. The ENGINEER shall be responsible for professional
negligence which is the exercise of skill and ability as ordinarily required of engineers under the same or similar circumstances. The ENGINEER shall not be responsible for warranties, guarantees, fitness for a particular purpose or breach of fiduciary duty and shall only indemnify for failure to perform in accordance with the generally accepted engineering and consulting standards.
Here’s the newest 218 tax twist. Say you want to go to the County to build a deck like my clients have. A deck and front entry mind you. Before February all you had to sign about the Los Osos Building Moratorium was a one page document that acknowledged that you knew about it.
But now you have to cloud the title of your property by recording a deed restriction that binds you to the following restrictions. This deed restriction never went before LOCAC, never saw the light of day, but instead bubbled up out of the darkness of County Council’s witches brew of semantic legalese. For the last three weeks I have been sent on a Kafka like wild goose chase to pin down where it came from.
Reading the indemnity clause with my 218 glasses on my take is that it is a “Regulatory Taking” by the County that is protected by the U.S. Constitution. While at the same time being a direct manipulation of the State Constitution Article 13D on tax reform by preventing residence from coming after the County if they back out of the Blakeslee Bill.
Think about it. If the whole good cop bad cop PZ sewer bust that the County and the Waterboard are playing on us goes up in smoke, who are you going to come after for “passive’ or ‘proximate’ negligence.
Read just the ‘red [Italics]and you will realize that and home remodel in the PZ will not be able to join in a class action against the County for allowing all those extra houses to be built and never coming up with a septic maintenance plan when your property is worthless in 2011. They are responsible for some of that nitrogen no? It’s easy to prove if you are only going after them for ‘passive’ not gross negligence. But woops, it’s in the deed restriction that you can’t go after them for that…….
From the county: “COVENANT AND AGREEMENT RESTRICTING USE OF PROPERTY”
Owner and his successors in interest agree to defend, indemnify and save harmless the County of San Luis Obispo, its officers, agents and employees from any and all claims, demands, damages, costs, expenses, judgments, or liability occasioned by the performance or attempted performance of the provisions hereof, or in any way arising out of this agreement, including, but not limited to, those predicated upon theories of violation of statute, ordinance or regulation, violation of civil rights, inverse condemnation, equitable relief, or any wrongful act or any negligent act or omission to act on the part of the Owner, or of the Owner's agents, employees or independent contractors; provided further that the foregoing obligations to defend, indemnify and save harmless shall apply to any wrongful acts, or any passively negligent acts or omissions to act, committed jointly or concurrently by 'the Owner, the Owner's agents, employees or independent contractors and the County, its agents, employees or independent contractors. Nothing contained in the foregoing indemnity provisions shall be construed to require indemnification for claims, demands, damages, costs, expenses or judgments resulting solely from the negligence or willful misconduct of County or its officers, agents, employees or independent contractors. Invalidation of anyone of the restrictions contained herein by judgment or court order shall in no way affect any of the other provisions which shall remain in full force and effect.
It’s not the location silly, it’s the tax spin.