HomeMy WebLinkAboutMINUTES - 09162008 - C.23 CLAIM
BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY
A ACTION: SEPTEMBER 16', 2008
Claim Against the County, or District Governed by
the Board of Supervisors, Routing Endorsements, NOTICE TO CLAIMANT
and Board Action. All Section refe �(if)) The copy of this document mailed to
California Government Codes. �L// you is your notice of the action taken
!! 2 2008 9911 on your claim by the Board of
Supervisors. (Paragraph IV below),
COUNTY COUNSEL given Pursuant to Government Code
MARTINEZ CALIF.
AMOUNT: $346,914.81 plus fees and Section 913 and 915.4. Please note all
cost according to proof "Warnings".
CLAIMANT: STAMM THEATERS, INC,.-and
WALTER M. STEVENS
ATTORNEY: RICHARD HOBIN DATE RECEIVED: AUGUST 12, 2008
RICHARD HOBIN LAW OFFICE
ADDRESS: 1011 "A" STREET, BY DELIVERY TO CLERK ON: AUGUST 12, 2008
ANTIOCH, CA 94509
BY MAIL POSTMARKED: HAND DELIVERED
FROM: Clerk of the Board of Supervisors T0: County Counsel
Attached is a copy of the above-noted claim.
JOHN CULLEN'C r c -
Dated: AUGUST 12, 2008 By: Deputy
11. FROM: County Counsel TO: Clerk of the Board of Supervisors
( This claim complies substantially with Sections 910 and 910.2.
( ) This Claim FAILS to comply substantially with Sections 910 and 910.2, and we are so
notifying claimant.'The Board cannot act for 15 days (Section 910.8).
( )' Claim is not timely filed. The Clerk should return claim on ground that it was filed late and
send warning of claimant's right to ap�p`ly�foor leave to present a late"claim (Section 911.3).
(vr Other: (� t 5 f lwlc(4 b on +hs� -17( 02 Qf:7 1
C_ 14 Head 40 be, `71.31 I o
Dated: 0 � Y d By: Deputy County Counsel
i1I. FROM: Clerk of the Board TO: County Counsel (1) County Administrator(2)
O Claim was returned as untimely with notice to claimant (Section 911.3).
IV., 0ARD ORDER: By unanimous vote of the Supervisors present:
(yr This Claim is rejected in full.
O Other:
I certify that this is a true and correct copy of the Board's Order entered in its minutes for.
this date.
Dated: 4 'r119VID TWA CLERK, By Deputy Clerk
WA 1. G (Gov. code section 913).
47
Subject to certain exceptions,you have only six(t) months from the date this notice was personally served
ordeposited in the nail to file a court action on this claim.See Government Code Section 945.6.You may
seek the advice of an attorney of your choice in connection with this matter. If you want to consult an
attorney,you should do so immediately. *For Additional Warning See Reverse Side ofThis Notice.
AFFIDAVIT OF MAILING
I declare under penalty of perjury that I ant now, and at all times herein mentioned, have
been a citizen of the United States, over age 18; and that today I deposited in the United
States Postal Service in Martinez, California, postage fully prepaid a certified col)y of.this
Board Order and Notice to Clainnant, addressed to the claimant as shown above.
Date DAVID TWA CLERK By Deputy Clerk
r.
r'yr r✓,
4
tf
This warning does not apply to claims which
are not subject to the:G:alitorna`�;ort Claims
Act such as actionslin inverse condemnation,
actions for specific `relrief such.'a's.mandamus or
injunction, or FederaLCiy`il Rights claims..The
above list is not exhau's'tive-�W-iidI•legal
consultation is essential to understand all the
separate limitations periods that may apply.
The limitations period within which suit must
be filed may be shorter or longer depending on
the nature of the claim. Consult the specific
statutes and cases applicable to your particular
claim.
The County of Contra Costa does not waive any
of its rights under California Tort Claims Act
nor does it waive rights under the statutes of
limitations applicable to actions not subject to
the California Tort Claims Act
i r. .
t
CLAIM PRESENTED UNDER THE GOVERNMENTAL CLAIM
California Government Code, Section 905
VED
AUG I z 2008
CLERK BOARD OF SUPERVISORS
RE: CLAIM BY STAMM THEATERS, INC. AND WALTER H. STEVENS CONTRA COSTA CO.
AGAINST
THE COUNTY OF CONTRA COSTA, CONTRA COSTA PUBLIC WORKS, AND THE
CONTRA COSTA COUNTY FLOOD CONTROL&WATER CONSERVATION DISTRICT.
The undersigned claimants hereby make claim against the County of Contra Costa, Contra
Costa Public Works, and/or the Contra Costa County Flood Control &Water Conservation
District in the sum of$ 346,914.81 plus fees and costs according to proof in support of this
breach of contract claim presented below.
1. When did the damage or injury occur?
July 31, 2008.. Breach of Contract- Drainage Facilities Construction and Right-Of-Way
Agreement.
2. Where did the damage or injury occur?
CONTRA COSTA COUNTY. Flood Control &Water Conservation District, Drainage Area
29G, Antioch, Contra Costa County, California.
3. How did the damage or injury occur?
On or about September 30, 1992, the Contra Costa County Flood Control and Water
Conservation District ("DISTRICT'j, Stamm Theaters, Inc. and Walter H. Stevens
("STAMM'), Kmart Corporation ("KMART) and other ADJACENT OWNERS entered into
a Drainage Facilities Construction And Right-Of-Way Agreement("AGREEMENT'). Atrue
and correct copy of the Agreement is attached as Exhibit#1. The Agreement pertained
to three parcels of land all located within District's Drainage Area 29G.
At completion of the installation of the drainage facility, the District agreed that it owed
Stamm a total of $346,914.81 for the purchase of 1.9759 acres of land for a detention
basin site ($258,213.00) and construction credit ($88,701.81).
Page 1
CLAIM PRESENTED UNDER THE GOVERNMENTAL CLAIMS ACT
California Government Code, Section 905
In the Agreement, Stamm and Adjacent Owners opted not to enter into a reimbursement
agreement with the District. Instead, they agreed that payments owed to them be
considered as credits against future drainage fee obligations forfuture development
of their properties in District's Drainage Area 29G.
On or about March 7, 1998 and in 1999, Stamm sold two other parcels of land in District
Drainage Area 29G designated at Parcel's#1 and#2 on Parcel Map, Subdivision MS 1-92
in the city of Antioch, County of Contra Costa, State of California. The District then
required that each purchaser pay drainage fees knowing that Stamm had agreed to use
his credits in lieu of paying the drainage fees. The District did not disclose these facts and
kept the drainage fees. These drainage fees should have been paid to Stamm and/or
Stamm should have received notice of the District's demand for payment of the drainage
fees so that he could have negotiated with the purchasers to use his credits:
In January, 2008, Stamm notified the District of plans to sell Markstein Sales Company
(`MARKSTEIN'l credits to be used to pay drainage fees of$294,963 for development of
the new Markstein plant and facilities in Drainage Area 29G. In a letter dated March 19,
2008, the District referred the Stamm request to County Counsel to review/comment
and agreed that the drainage fees of$294,963 collected from Markstein on March
6, 2008 would beheld pending resolve of the Stamm request to transfer credits.
A copy of the District's March 19, 2008 letter is attached as Exhibit#2.
On July 31, 2008, the District notified Stamm that County Counsel's interpretation of the
Agreement was that Stamm was not allowed to transfer or sell credits to any future
property owner on a parcel listed in the Agreement. Consequently, the District has taken
Stamm's property; required that he contribute to the building of a drainage detention basin;
paid Stamm back with credits; taken Stamm's credits away by requiring the purchasers
of his two lots to pay drainage fees; and now refuses to allow Stamm to sell his credits to
Markstein for its development in Drainage Area 29G. Therefore, Stamm's credits of
$346,914.81 are worthless.
4.What particular act or omission on the part of county or district officers;servants,
or employees caused the injury or damage?
Failure to allow transfer of credits to be used to pay drainage fees for development in
Drainage Area 29G.
Page 2
CLAIM PRESENTED UNDER THE GOVERNMENTAL CLAIMS ACT
California Government Code, Section 905
5.What are the names of county or district officers, servants, or employees causing
the damage or injury?
GREG CONNAUGHTON. - Division Manager and TIM JENSEN, Senior Civil Engineer, of
the Contra Costa County Flood Control & Water Conservation District.
6. What damage or injuries do your claim resulted.
Breach of Contract totaling $346,914.81 plus fees and cost according to proof.
7. How was the amount above computed?
Total Project Cost Reimbursement of$88,701.81 and Land Purchase Cost of$258,213.00
Totaling- $346,914.81 plus fees and costs according to proof.
8. Names and address of witnesses, doctors, and hospitals:
N/A
9. List the expenditures you made on account of this accident or injury:
DATE: TIME: AMOUNT:
N/A
SEND NOTICES TO: Gov. Code Sec. 910.2 provides "The claim shall
be signed by the claimant or by some person on
Richard Hobin, Esq. his behalf."
RICHARD HOBIN LAW OFFICE
1011 "A" Street STAMM THEATERS, INC.
Antioch, CA 94509 j
Telephone: 925/757-7585 '
Facsimile: 925/757-0153
E-mail: richardCcDhobinlaw.com GEORGE STAMM, President
Page 3
CLAIM PRESENTED UNDER THE GOVERNMENTAL CLAIMS ACT
California Government Code, Section 905
EXHIBIT 1
ECEIVE
APR 1 4 1993 D
DRAINAGE FACILITIES CONSTRUCTION
AND RIGHT-OF-WAY AGREEMENT „�C,
1. PARTIES. Effective on September 30 , 1992, the following
parties. mutually agree as set forth in this agreement:
Contra Costa County Flood Control and Water Conservation
District, a political subdivision of the State of California
(hereinafter called "DISTRICT") ; . and
Kmart Corporation, a Michigan corporation (hereinafter called
"DEVELOPER") ; and
Walter H. Stevens and Stamm Theaters, Inc. , a . Nevada
corporation (hereinafter collectively called "STAMM") ; and
Tony Cutino; Dwight Meadows; Leonard A. Shannon; Frank P.
Bellecci; John S. Bellecci; Leo Fontana; Gene Mayer; William
M. Hall; Rosewood Partnership, a California limited
partnership; Thomas C. Schoenthaler and Mary K. ` Schoenthaler
(hereinafter collectively called "ADJACENT OWNERS") .
2 . INTRODUCTION.
A. DEVELOPER is the owner of that parcel of land described
in Exhibit A-1 attached to this agreement (hereinafter
called "Kmart Property") . STAMM is the owner of that
parcel of land described in Exhibit A-2 attached to this
agreement (hereinafter called "Stamm Property") .
ADJACENT OWNERS are the owners of undivided interests in
that parcel of land described in Exhibit A-3 attached to
this agreement (hereinafter called "Adjacent Property") .
All three parcels of land are located within DISTRICT's
Drainage Area 29G.
B. DEVELOPER is developing the Kmart Property and a portion
of the Stamm Property as a retail shopping center. said
development is within the jurisdiction of the City of
Antioch (hereinafter called "ANTIOCH") . To satisfy
ANTIOCH's conditions of approval for said development and
to comply with the adopted drainage plan for Drainage
Area 29G (hereinafter called "Drainage Plan") , DEVELOPER
is required to install certain drainage facilities shown
on the adopted Drainage Plan .for Drainage Area 29G. The
drainage facilities required to be installed (hereinafter
called "Drainage Facilities") are identified in Exhibit
B attached to this agreement.
C. A portion of the Drainage Facilities can or will be used
for the benefit of properties other than the Kmart
Property and the Stamm Property. District is willing to
pay for this portion upon its completion.
D. The cost of installing the Drainage Facilities exceeds
the amount of drainage fees payable for said development
under the drainage fee ordinance for said drainage area
(Ordinance No. 83-21) .
E. DISTRICT has adopted a drainage area credit , and
reimbursement policy (hereinafter called "Reimbursement
Policy") for said drainage area.
F. Since DISTRICT has an effective Drainage Plan and a
Reimbursement Policy for said drainage area, DEVELOPER
has requested that DISTRICT enter into this agreement
with DEVELOPER, pursuant to said policy.
3 . INSTALLATION OF DRAINAGE FACILITIES. ' The Drainage Facilities
shall be installed by .DEVELOPER at its expense in strict
accordance with the Drainage Plan and with plans and
specifications prepared by DEVELOPER, which shall be subject
to DISTRICT's approval. During installation and. upon
completion, the Drainage Facilities shall be subject to
inspection by ANTIOCH and DISTRICT.
4 . RIGHT-OF-WAY. DEVELOPER, STAMM and ADJACENT OWNERS shall
offer for dedication to DISTRICT or ANTIOCH, as appropriate,
easements for installation of the Drainage Facilities on their
respective properties. Such dedication shall be at no cost to
DISTRICT or ANTIOCH, except as provided otherwise in section
7 . E. DISTRICT shall obtain any necessary easements or permits
for installation of that portion of the Drainage Facilities
not located on the properties owned by DEVELOPER, STAMM or
ADJACENT OWNERS.
5 . PAYMENT FOR EXCESS CAPACITY.
A. The estimated total cost of installing the Drainage
Facilities and obtaining off-site right-of-way
(hereinafter called "Total Cost") is $625, 000. DISTRICT
shall pay to DEVELOPER, as compensation for the portion
of the Drainage Facilities described in section 2 .C, 'a
sum calculated as follows:
i. If the Total Cost does not exceed $625, 000, 40% of
the Total Cost.
ii. If the Total Cost exceeds $625, 000, the sum of
$250, 000 (i. e. , 40% of $625,000) plus 10% of the
excess.
B. DISTRICT shall receive a credit for any right-of-way
(excluding the detention basin site) that it obtains
pursuant to section 4, and the cost of such right-of-way
-2-
shall be deducted from the.sum payable to DEVELOPER under
section 5.A.
C. The sum described in section 5.A shall be payable upon
completion of the Drainage Facilities and acceptance of
the same by ANTIOCH and DISTRICT. In order to qualify
for payment under this section, DEVELOPER shall obtain
DISTRICT' s prior written approval of all costs of
installing the Drainage Facilities. . All monies paid by
DISTRICT pursuant to this section shall constitute a.
government loan under the Reimbursement Policy and shall
be entitled to priority of repayment, as provided in such
policy.
6. REIMBURSEMENT TO DEVELOPER. To the extent that eligible costs
paid by DEVELOPER exceed the amount of fees required by
Ordinance No. 83-21, DISTRICT shall reimburse DEVELOPER for
such costs in accordance with the terms of this agreement and
the DISTRICT' s above-mentioned :Drainage Plan and Reimbursement
Policy for said drainage area, a copy of which is attached to
this agreement as Exhibit C.
7. CREDIT TO STAMM AND ADJACENT OWNERS.
A. STAMM has agreed to advance the sum of $100, 000 to
DEVELOPER for use in paying the costs of installing the
Drainage Facilities. If the Total .Cost does not exceed
$625, 000, STAMM shall be responsible for 16% of the Total
Cost, and any surplus shall be refunded to STAMM.
B. ADJACENT OWNERS have agreed to advance the sum of $25, 000
to DEVELOPER for use in paying the costs of installing
the Drainage Facilities. If the Total Cost does not
exceed $625, 000, ADJACENT OWNERS shall be responsible for
4% of the Total Cost, and any surplus shall be refunded
to STAMM.
C. If the Total Cost exceeds $625, 000, STAMM and ADJACENT
OWNERS shall pay, in addition to the advances described
in section 7.A and B, 30% and 0% respectively of such
excess.
D. STAMM and ADJACENT OWNERS have opted not to enter into a
reimbursement agreement with DISTRICT at this time.
Instead, they have requested that their advances be
considered as credits against future drainage fee
obligations for future development of their properties.
Upon documentation of the payments to DISTRICT' s
satisfaction, STAMM and ADJACENT OWNERS shall each
receive a credit against future drainage fees payable for
future development of their properties.
-3-
E. STAMM and ADJACENT OWNERS have also agreed to dedicate to
DISTRICT fee title to the detention basin site located on
their properties. As compensation for such dedication,
STAMM and ADJACENT OWNERS shall each receive an
additional credit against future drainage fees of $3. 00
per square foot.
8 . INDEMNIFICATION. DEVELOPER shall defend, indemnify, save and
hold DISTRICT, its :governing body, officers, agents and
employees absolutely free, clear and harmless from any claims,
actions or costs arising from any property and/or rights
acquisition which may be necessary hereunder, or arising from
any and all damage to property, injury to persons , including
death, or any other type of liability arising as a result of
DEVELOPER' s installation of the Drainage Facilities. In
addition, DEVELOPER shall insert in the written contract(s)
for installation of the Drainage Facilities language requiring
the contractor(s) to provide indemnification and insurance in
a form and amount satisfactory to DISTRICT.
9 . NON-RESPONSIBILITY OF DISTRICT. The installation of Drainage
Facilities is the sole responsibility of DEVELOPER, except for
the "normal inspection provided by DISTRICT and ANTIOCH.
DISTRICT assumes no responsibility whatsoever for construction
procedures and methods utilized by DEVELOPER in installing the
Drainage Facilities.
10 . NO OTHER RECOURSE AGAINST DISTRICT. This agreement
constitutes the total statement of rights between DISTRICT and
DEVELOPER, as well as between DISTRICT and STAMM and ADJACENT
OWNERS, concerning payment or reimbursement for costs of
installing the Drainage Facilities.
-4-
1 I
l
WALTER H. STEVENS Approved as to Form:
STAMM THEATERS, INC., Victor J. Westman
a Nevada corporation .County Counsel
By
By: Deputy
George F. Stamm
Its: President
CONTRA COSTA COUNTY FLOOD
CONTROL AND WATER
CONSE VATION DISTRICT
By
Chair of the Board of Supervisors, as
governing body, of the Contra Costa
County Flood Control and Water
Conservation District
ATTEST:
Phil Batchelor, Clerk of the Board of
Supervisors and County Administrator
By
Deputy Clerk
Recommended for Approval:
J. Michael Watford
Chief Engineer
i
Dated: I�Q , 1992
THOMAS C. SCHOENTHALER
Dated: C7 , 1992
MARY K. SHOtNTFOkLtk
Dated: ,1992 KMART CORPORATION, a Michigan corporation
By:
Its:
STAMM THEATRES, a California corporation.
By:
George Stan, President
WALTER STEVENS
CONTRA COSTA COUNTY FLOOD CONTROL
AND WATER CONSERVATION DISTRICT
By:
Its:
STATE OF CALIFORNIA)
SS.
COUNTY OF )
On this day of , 1992, before me, the undersigned,
a notary public in and for said county and state, personally appeared LEO
FONTANA, personally known to me (or proved to me on the basis of satisfactory
evidence) ; to be the person who executed the within instrument and acknowledged
to me that he executed it as his free act and deed.
Notary Public
County, California
My Commission Expires:
[Notary Seal]
STATE OF CALIFORNIA)
SS.
COUNTY OF )
On this day of , . 1992, before me, the undersigned,
a notary public in and for said county and state, personally appeared GENE
MAYER, personally known to me '(or proved to me on the basis of satisfactory
evidence) , to be the person who executed the within instrument and acknowledged
to me that he executed it as his free act and deed.
Notary Public
County, California
My Commission Expires:
[Notary Seal]
STATE OF CALIFORNIA)
�). SS'
COUNTY OF(
On this "P day o 1992, before me, the undersigned,
a notary public in and for said county and state, personally appeared THOMAS C.
SCHOENTHALER, personally known to me (or proved to me on . the basis of
satisfactory evidence), to be the person who executed the within instrument and
acknowledged to me that he executed i s hisf • e a and deed.
OFF CIAL SEAL `
PEGGY M.TAIMORF N ub 11
Mown►ieae•utroanw � v�J NJ CountyCalifornia
COMM COSTA COUNT' . ,/
W Cams FmhsAq.to.IYS3 My Commission Expires: y'C
[Notary Seal]
i
STATE OF CALIFORNIA)
/ ) SS. _
COUNTY OF J fd) 1
On this day ofI E� tiu G� 1992, before me, the undersigned,
a notary public in and for said county and state, personally appeared MARY K.
SCHOENTHALER, personally known to me (or proved to me on the basis of
satisfactory evidence) , to be the person o executed the within instrument and
acknowledged to me that she executed it a er freet % deed.
FFICIALgg
Not c
PE66r M,i
MKPMTAW iG`;Y4 County, California
CW
.n My Commission Expires: !3
wr-zo.s
[Notary Seal)
STATE OF CALIFORNIA )
)SS.
COUNTY OF )
On this day of , 1992, before me the undersigned,
a notary public in and for said State and County, personally appeared
and I , personally known to me
(or proved to me on the basis of satisfactory evidence) , to be the person who
executed the within instrument as of ROSEWOOD
PARTNERSHIP, a California, partnership, and acknowledged to
me that by his execution thereof the partnership executed it.
Notary Public
County, California
My Commission Expires s
(Notary Seal)
STATE OF MICHIGAN )
SS.
COUNTY OF OAKLAND )
On this day of , 1992, before me, a notary public in and
for said state and county, personally appeared ,
personally known to me (or proved to me on the basis of satisfactory evidence) , ,
to be the person who executed the within instrument as a vice president of KMART
CORPORATION, a Michigan corporation, and acknowledged to me that by his
execution thereof the corporation executed it.
Notary Public
County, Michigan
My Commission Expires:
[Notary Seal]
Dated: 1992
THOMAS C. .SCHOE14THALER
Dated: , 1992
MARY K. SCHOENTHALER
Dated: �./ $ , 1992 KMART CORPORATION, a Michigan corporation
By:
Its: Senior Vice President
STAMM THEATRES, a California corporation
By:
George Stamm, President
WALTER STEVENS
CONTRA COSTA COUNTY FLOOD CONTROL
AND WATER CONSERVATION DISTRICT
By:
Its:
STATE OF CALIFORNIA)
SS.
COUNTY OF )
On this _. day of , •1992, before me, the undersigned;
a notary public in ,and for said county and state, personally appeared MARY K.
SCHOENTHALER, personally known to me (or proved to me on the . basis of
satisfactory evidence) , to be the person who executed the within instrument and
acknowledged to me that she executed it as her free act and deed.
Notary Public
County, California
My Commission Expires:
[Notary Seal]
STATE OF CALIFORNIA }
)SS.
COUNTY OF )
On this day of , 19929 before me the undersigned,
a notary public in and for said State and County, personally appeared
and , personally known to me
(or proved to me on the basis of satisfactory evidence) , to be the person who
executed the within instrument as of ROSEWOOD
PARTNERSHIP, a California partnership, and acknowledged to
me that by his execution thereof the partnership executed it.
Notary Public
County, California
My Commission Expires:
[Notary Seal]
STATE OF MICHIGAN )
SS.
COUNTY OF OAKLAND )
On this -2--day of +y , 1992, before me, a notary public in 'and
for said state and Vcountyq personally appeared M. L Skiles I
personally known to me (or proved to me on the basis of satisfactory evidence) ,
to be the person who executed the within instrument as a vice president of KMART
CORPORATION, a Michigan corporation, and acknowledged to me that by his
execution thereof the corporation e i cu ed it. r
r
Notary Public
County Michigan
My Commission Ex ires•
IFIENE F.I AMMCN
[Notary Seal] Notay%u llc,M=MbCounty,Michigan
Acting in Oakland County,MlChigan
MyCommi$$ion Expires July 10,1995
Dated: 1992
THOMAS C. SCHOENTHALER
Dated: , 1992
MARY K. SCHOENTHALER
Dated: , 1992 KMART CORPORATION, a Michigan corporation
By:
Its:
STAMM THEATFS, a California corporation
By:
Georg Staamm, President
WALTER STEVENS
CONTRA COSTA COUNTY FLOOD CONTROL
AND WATER CONSERVATION DISTRICT
By:
Its:
STATE OF CALIFORNIA)
SS.
COUNTY OF Contra osta
On this 9thday of September , 1992, before me, a notary public
in and for said state and county, personally appeared George Stamm, personally
known to me (or proved to me on the basis of satisfactory evidence) , to be the
person who executed the within instrument as president of STAMM THEATERS, INC. ,
a California corporation, and acknowledged to me that by his execution thereof
BETTY FL NMLW
Notary Pu lit
W�L�w1M4 Contra Costa County, Calfifornia
ry
My Commission Expires: May 18 , 1994
(Notary Seal]
STATE OF CALIFORNIA)
) SS.
COUNTY OF )
On this day of , 1992, before me, the undersigned,
a notary public in and for said county and state, personally appeared WALTER
STEVENS, personally known to me (or proved to me on the basis of satisfactory
evidence) , to be the person who executed the within instrument and acknowledged
to me that he executed it as his free act and deed.
Notary Public
County, California
My Commission Expires:
STATE OF CALIFORNIA)
SS.
COUNTY OF )
On this day of , 1992, before me, a notary public
in and for said state and county, personally appeared
personally known to me (or proved to me on the basis of satisfactory evidence) ,
to be the person who executed the within instrument as of CONTRA
COSTA FLOOD CONTROL AND WATER CONSERVATION DISTRICT, a body corporate and
politic of the State of California, and acknowledged to me that by his execution
thereof such body executed it.
Notary Public
County, Calfifornia
My Commission Expires:
MH$/11335/1368/JT3
i
Dated: , 1992
THOMAS C. SCHOENTHALER
Dated: 1992
MARY K. SCHOENTHALER
Dated: , 1992 KHART CORPORATION, a Michigan corporation
By:
Its:
STAMM THEATRES, a California corporation
By:
George Stammn, President
WALTER STEVENS
CONTRA COSTA COUNTY FLOOD CONTROL
AND WATER CONSERVATION DISTRICT
By:
Its:
STATE OF CALIFORNIA)
SS.
COUNTY OF )
On this day of , 1992, before me, a notary public
in and for said state and county, personally appeared George Stamm, personally
known to me (or proved to me on the basis of satisfactory evidence) , to be the
person who ekecuted the within instrument as president of STAMM THEATERS, INC. ,
a California corporation, and acknowledged to me that by his execution thereof
the corporation executed it.
Notary Public
County, Calfifornia
My Commission Expires:
(Notary Seal)
STATE OF CALIFORNIA)
) SS.
COUNTY OF f1tar; ,1 )
On this jtj1 -.-day of 24rbe✓ , 1992, before me, the undersigned,
a notary public in and for sa d county and state, personally appeared WALTER
STEVENS, personally known to me (or proved to me on the basis of satisfactory
evidence) , to be the person who executed the within instrument and acknowledged
to me that he executed it as his free ct and deed.
OFFICWL IKAT�TN]EQ
KANMWE A. Nota Public
Notary Pubue•`' MARW CO _ j A Y t � County, California
MY ComrtdsloMyCommission Expires:S�rSSPtwrLw —�–
STATE OF CALIFORNIA)
) SS.
COUNTY OF )
On this day of , 1992, before me, a notary public
in and for said state and county, personally appeared ,
personally known to me (or proved to me on the basis of satisfactory evidence) ,
to be the person who executed the within instrument as of CONTRA
COSTA FLOOD CONTROL AND WATER CONSERVATION DISTRICT, a body corporate and
politic of the State of California, and acknowledged to me that by his execution
thereof such body executed it.
Notary Public
County, Calfifornia
My Commission Expires:
MHB/1133511368/,1T3
WITNESS the due execution hereof as of the day and year first above
written, which shall be the date inserted by the last of the parties hereto to
execute this Agreement.
Dated: 1.111. , .1992
TONY CUNNO
Dated: 1992
DWIGliT MFADOWS
Dated: X-2 1992� f ,
NARD A. S
Dated: / % 1992
FRANK P. BELLECCI
Dated: % , 1992 Xw
JOHN S. BELLECCI _y ,,_ 7 air
i f� 7
Dated: l ��f /C , 1992
LEO F TANA'
Dated: 1992
GENE R
Dated: '�— . , 1992
WILLIAM M. HALL `
Dated: / ejF-74, 1992 ROSEWOOD PARTNERSHIP, a California partnership
Its-
ACKNOWLEDGEMENTS
STATE OF CALIFORNIA)
&hf"H ) SS.
COUNTY OF
On this day of 4P,v bl-r- , 1992, before me, the undersigned,
a notary public in and for daid county and state, personally appeared TONY
CUTINO, (or proved to me on the basis of satisfactory
evidence) , to be the person who executed the within instrument and acknowledged
to me that he executed it as his free act and deed.
OFFICIAL SEA, e�
C. STEELE NO(,�6 ry Public
.'/C TA !
!'••�.>•,�''T-� R'(PUBllC•CALIFORNIA 1... !'(� �C%5-�-s--- County, fornia CCNTRA COSTA COUNTY t `/
My Commission Expires:T6,
(Notary Seal]
STATE OF CALIFORNIA)
Cc..4,Ta., ) SS.
COUNTY OF Lo y )
On this C �i day of I'll 1992, before me, the undersigned,
a notary public in and for salid county and state, personally appeared DWIGHT
MEADOWS, (or proved to me on the basis of satisfactory
evidence) , to be the person who executed the within inst ument and acknowledged
to me that he executed it as his free act and deed.
OFFICIAL SEAL 1.
C. STEELE
Not Public
NOTnaY FUBLI:-ULIFORNIA /� //�� ,
-.� CON•?A COSTA COUNTY �G� �1 f�-ct �' 547, C//Auj,3t (FL California
'wnn
\ MyEXP 61sT 6 1994 L7IT
My Commission Expires: T7
(Notary Seal]
STATE OF CALIFORNIA)
(!LTl•t ) SS.
COUNTY OF C :'vim )
On this [Q:t�- day of x y , 1992, before me, the undersigned,
a notary public in and for s id county and , state, personally appeared 'LEO
FONTANA, Li tu me- (or proved to me on the basis of satisfactory
evidence) , to be the person who executed the within instrument and acknowledged
to me that he be
it as his free act and deed.
-I Ntar Publ c
r4- County, California
My Commission Expires: •i�/(O/CjV
[Notary Seal]
STATE OF C�•IFORNIA)
( tTt�t ) SS.
COUNTY OF
On this ` ti day of ( r>• !�s'+� , 1992, before me, the undersigned,
a notary public ,in and for said county and state, personally appeared GENE
MAYER, (or proved to me on the basis of satisfactory
evidence) , to be the person who executed the within instrument and acknowledged
to me that he executed it as his free act and deed.
'-1• OFFICIAL SEAL
C. STEELE No/♦teary Public
_ NOTARY PL•SUC-CALIFORNIA
CunACGaTACC6i1TY L�� 1t,�T3�L c ,.: 5• Cpu�}ty`,, California
"''c ' ''3' My Commission Expires:
(Notary Seal)
STATE OF CALIFORNIA)
}
STATE OF C 11 FOR IA I }ss.
> COUNTY OF F"-l �'U— ��77� }
� Ti'C L� asigned
r,
On ,n�a/ 7 199E ' before me. 1 add THOMAS C.
n personally appeared Lv I t a s•ti� Ma �� is basis of
a • e (or proved �trumant and
to me on the bases of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within
Instrument ano acknowledged to me that heleherotey executed the same In hlstherrtheireuthorized capaclty(ies),
and that by nls.heFri r signaturels) on the Instrument the person(s) or the entity upon behalf of which the California
'v
DersOn(s) acted. executed the instrument. OFFICIAL SERI
rte.
_ • C. STEELE
.7 `.'�-' NOTARY PUBLIC.CALIFORNIA
a ) WITNESS my nano and official eat. CCNTRA COSTA COUNTY
� ) n Sty C.urm fao AfaY 6.159E
Signature `
!This area for official notarial seal)
STATE OF CALIFORNIA)
CCAJ r+— ) SS..
COUNTY OF t_o54'►-- )
On this day of _ �� y r 1.992, before me, the undersigned,
a notary public in and for said county and state, personally appeared LEONARD A.
SHANNON, me (or proved to me on the basis of satisfactory
evidence) , to be the person who .executed the within instrument and acknowledged
to me that he executed it as his free act and deed.
OFFICIAL SERI N ar c
C. STSTERE � Y PubliD
NOTAP.YpUZUC•CAuFCRN7> ail f�� ( ���fT Caunty, California
• - CONTRA COSTA COUNTY -
"•+' MYCpmn EXP-May 6.199+ My Commission Expires: ---:�4h 411v-
(Notary Seal)
STATE OF CALIFORNIA)
COUNTY OF
On this 7- day of Y m 6L / , 1992, before me, the undersigned,
a notary public in and for said county and state, personally appeared FRANK P.
BELLECCI, a (or proved to me on the basis of satisfactory
evidence) , to be the person who executed the within instrument and acknowledged
to me that he executed it as his free act and deed.
rte-- OFFICIFL SEA - �
I; STEELE Not ry Public
NOTARY pU9UGCAlIFOfiEIIP.
CONT RA COS TA CCUNTY t� n-/-.-� C CUS Cony, California
M MyCC20 Bp.M+y 6. 199+ My Commission Expizes: S `/
(Notary Seal)
}
STATE OFC 0 }ss.
COUNTY OFFgn- rte
E On 5go�9, /5'9Lbefore me,
m personally appeared r d 11 �' �. P �� /4f��o n .�.in -�a. 'I- iersigned,
t ?O ff!J 5. 6 E//E p C f oem-beRe4r4""wn-to me (or proved ' =d JOHN S.
:isfactory
to me on the basis of satisfactory evidence) to be the persons)whose name(s) is/are subscribed to the within cnowledged
vs
li instrument and acknowledged to me that het hwl, y executed the same In hiS#mT t M authorized capacity(ies).
m
and teal by his1h@FAiper signatures) on the instrument the personlsl or the entity upon behalf of which the
m
�O
person(s)acted.executed the Instrument.
OFFICIAL SEAL :alifornia
E
C. STEELE
WITNESS my h and official se "r NOTARY FURUC.CALIFORNIA
CONTRA C051A COUNTYUSignatueMY Rm.E+p May 6.1994
(This area for official notarial seal)
k
STATE OF CALIFORNIA)
). SS.
COUNTY OF )
On this day of , 1992, before me, the undersigned,
a notary public in and for said county and state, personally appeared MARY K.
SCHOENTHALER, personally known to me (or proved to me on the basis of
.satisfactory evidence) , to be the person who executed the within instrument and
acknowledged to me that she executed it as her free act and deed.
Notary Public
County, California
My Commission Expires:
[Notary Seal)
STATE OF CtIFORNIA )
)SS.
COUNTY OF vd-p- )
On this day of 1992, before me the undersigned,
a notary public in and for said State and County, personally appeared
rnr;c o E. v ; ., and , to.-me
(or proved to me on the basis of satisfactory evidence) , to be the person who
executed the within instrument as Pa r 4 h e of ROSEWOOD
PARTNERSHIP, a California partnership, and acknowledged to
me that by his execution thereof the partnership execute it.
OFFICIAL SEAL C? �L /
�� - C. STEELE
NOTARY PUBLIC.CALIFORNIA Notary. Publi/Q�
CONTRA COSTA COUNTYMy Craw
� /r
• �,._.
CONT
Maya,1997 �L A- a-- ll�//LLL.. S4-T Co nt , California
My Commission Expires: sib
}
STATE OF CALI ORNIA ,L }ss.
COUNTY OF (, w (�S� } l I
Onp/.{,e, t,q Zbefore me,
V is in and
personally appeared
F-
m ^^ally aaVn to g (or proved tvidence) ,
of KMART
c to me on the basis of satisfactory evidence) to be the person(s)whose name(s) Is/are subscribed to the within t by his
instrument and acknowledged to me that he.!sherthey executed the same In hislherttheir authorized capaclty(ies).
and that by hts.•her,thetr signature(s) on the Instrument the person(s) or the entity upon behalf of which the
r,
person(s) acted.executed the Instrument.
OFFICIAL SEAL Michigan
.'.,
C. STEELE
WITNESS my�o and only seal =b.:; NOTARY PMJC•CALIFORNIA
u CONTRA COSTA COUNTY
\\..-....i/
c ' mac::i:• My Cann.Ew Mn 5.1994
Signature
ffhls area for official notarial seal!
Milsir A-i
Kmart Parcels Legal Descriytion
Land located in the City , of Antioch, Contra Costa
County; California described as follows:
Parcel 5, as shown on that certain Subdivision Map entitled
Subdivision Map MS1-92, filed for record September 29, 1992, in Map
Book 159, at Pages 43 and 44, of the Contra Costa County
Redords.
EXHIBIT A -2
Sta= Parcels Legal Description
Land located in the City of Antioch, Contra Costa
County, California described as follows:
Parcels 1,2,3,4 as shown on that certain Subdivision Map
entitled Subdivision Map MS1-92, filed for record September
29, 1992, in Map Book 159, at Pages 43 and 44, of the Contra
` Costa County Records.
EXHIBIT A-3
Legal Description of APO Property
Land located in the City of Antioch, California, Contra Costa. County,
California, described as follows :
PARCEL ONE:
Parcels A, B and C are designated on the Record of Survey Map filed May 3, 1967,
Book 47, Licensed Surveyors Maps, Page 50, Contra Costa County Records .
EXCEPTING FROM PARCEL ONE:
1 - Mineral rights reserved in the Deed from William E. Moore, et. ux. recorded
January 20, 1971, Book 6299, Official Records, Page 157, as. follows:
"All minerals and mineral' rights and all hydrocarbons and rights to hydrocarbons
beneath 500' beneath the surface of the land without right of surface access
thereto from the lands covered by this conveyance. "
2 - The interest conveyed to Contra Costa County in the parcel of land described
in Parcel One in the Deed recorded November 13, 1989, Book 6003, Official
Records Page 247.
3 - That portion thereof described as Parcel One in the Deed to Stamm Theatres,
Inc. , recorded March 14, 1972, Book 6607, Official Records', Page 450.
PARCEL TWO:
Portion of the Nbrth 1/2 of the northeast 1/4 of Section 21, Township 2 North,,
Range 2 East, Mount Diablo Base and Meridian, described as follows:
Beginning in the center line of the County Road known as Wilbur Avenue, at a
granite post which bears West 1832.2 feet from the northeast corner of said
Section 21; thence from said point of beginning West along said center line, 10
feet, thence South 781.6 feet to the North line of the Atchison, Topeka and
Santa Fe' Rallroad right of way; thence South 79 degrees 50' East along said
North line, 102 feet to the West line of the 9.40 acre parcel of land described
in the Deed to Charles C. Wrightman, recorded February 1, 1904, Book 104, Deeds,
Page 178; thence North along said West line 783.4 feet to the point of
beginning.
EXCEPTING FROM PARCEL TWO:
1 - That portion thereof lying within the County Road known as Wilbur Avenue.
2 - Mineral rights reserved in the Deed from William E. Moore, et al, recorded
March 5, 1972, Book 6801, Official Records, Page 104, as follows:
"All minerals and mineral rights and all hydrocarbons and rights to hydrocarbons
beneath 500' beneath the surface of the land without right of surface access
thereto from the lands covered by this conveyance. "
PARCEL THREE:
Portion of tre North 1/2 of the northeast 1/4 of Section 21, Township 2 North,
Range 2 East, Mount Diablo Base and Meridian, described as follows:
Commencing in the center line of the County Road known as Wilbur Avenue, at a
granite post which bears West 1832.2 feet from the northeast corner of said
Section 21; thence from said point of commencement West along said center line,
10 feet to the actual point of beginning of the herein described parcel of land; '
thence from said point of beginning West along said center line, 5 feet thence
South 780.7 feet to the North line of the Atchison, Topeka and Santa Fe Railroad
right of way; thence South 79 degrees 50' east, along said North line, 5.1 feet
to a point which bears North 79 degrees 50' West, 10.2 feet from the West line
of the 9.40 acre parcel of land described in the Deed to Charles C. Wrightman,
recorded February 1, 1904, Book 104, Deeds, Page 178; thence North, 781.5 feet
to the point of beginning.
EXCEPTING FROM PARCEL THREE:
1 - That portion thereof lying with the County Road known as Wilbur Avenue.
2 - Mineral rights reserved in the Deed from William E. Moore, et al, recorded
March 6, 1972, Book 6601, Official Records, Page 104, as follows:
"All minerals and mineral rights and all hydrocarbons and rights to hydrocarbons
beneath 500' beneath the surface of the land without . right of surface access
thereto from the lands covered by this conveyance. '
PARCEL FOUR:
Portion of the North 1/2 of the northeast 1/4 of Section 21, Township 2 North,
Range 2 East, Mount Diablo Base and Meridian described as follows:
Commencing in the center line of the County Road known as Wilbur Avenue, at a
granite post which bears West 1832.2 feet from the northeast corner of said
Section 21; thence from said point. of commencement West along said center line
the 20 feet to the actual point of beginning of the herein described parcel of
land; thence from said point of beginning West along said center line, 5 feet to
the East line of the parcel of land described as Parcel Three in the Deed to
Pacific Gas and Electric Company, recorded October 8, 1948, Book 1304, Official
Records, Page 306; thence South along said East line to the North line of the
Atchison, Topeka and Santa Fe Railroad right of way; thence South 79 degrees 50'
East, along said North line. 5.1 feet to a point which bears North 79 degrees
50' West, 20.4 feet from the West line of the 9.4 acre parcel of land described
in the Deed to Charles C. Wrightman, recorded F.ebruary 1, 1904, Book 104, Deeds,
Page 178; thence North 779 .8 feet to the point of beginning.
EXCEPTING FROM PARCEL FOUR:
1 - That portion thereof lying within the County Road .known as Wilbur Avenue.
2 - Mineral rights reserved in the Deed from William W. Moore; et al, recorded
March 6, 1972, Book 6801. Official Records, Page 104, as follows:
"AL1 minerals and mineral rights and hydrocarbons and rights to hydrocarbons
beneath 500, beneath the surface of the land without right of surface access
thereto from the lands covered by this conveyance. "
PARCEL FIVE:
Portion of the North 1/2 of the northeast 1/4 of Section 21, Township 2 North,
Range 2 East, Mount Diablo Base and Meridian, described as follows:
Commencing in the center line of the County Road known as Wilbur Avenue, at a
granite post which bears West 1832.2 feet from the northeast corner of said
Section 21; thence from said point of commencement West along said center line
20 feet to the actual point of beginning of the herein described parcel of land;
thence from said point of beginning West along said. center line, 5 feet to the
East line of the parcel of land described as Parcel Three in the Deed to Pacific
Gas and Electric Company, recorded October 8, 1948, Book 1304, Official Records,
Page 306; thence South along said East line to the North line of the Atchison,
Topeka and Santa Fe Railroad right of , way; thence South 79 degrees 50" East,
along said North line, 5.1 feet to a point which bears North 79 degrees 50, West
20.4 feet from the Kest line of the 9.40 acre parcel of land described in the.
Deed to Charles C. Wrightman, recorded February 1, 1904, Book 104, Deeds, Page
178 ; thence North, 779.8 feet to the point of beginning.
EXCEPTING FROM PARCEL FIVE:
That portion thereof lying within the County Road known as Wilbur Avenue.
MHB/11335/1368/JJ1
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Cir i o/ g.
TOPEKA Q SANTA FE
ca
�'` �•�•• ATCNlSON
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Exhibit "C'
QRAQr c Awa cis AND P�T-ra7RSEWEW POLlcr
Adopted Jtn1e, —1989
Z*.e following ool i( ,r adccceed by the Board of S=ervi.sors, as the governing bcdv
of thle C== Cosma Ca=r Flood ;Control and Water Carise-rvation Distric, shall
be used to dezezrzi ne cedits arri reimbursements as provided for in various
Drainage Area Fee Ordinances.
I. DEE'rN=CNS.
1. Drainage Area Plan. 'Ltle e_*)gine°_-sg plan which shows and lists L.te
size, length, and location of drainage facilities adopted for a
Drainage Area. '
2. Drainage- Area Fee ord trances. An ordinatr_e adopted for a Drainage
nage
Area specifying the drainage fee necessary to complete construction of
the planned facilities.
3. Drainage Area Fee Obligation. The drainage fee due on a development as
determined from the Drainage Area Fee ordinance.
4. Eli ai_ble costs. The cost of installing i n dTa i nage facilities which are
part of the Drainage Area Plan.
S. In-tract Drainage Facilities. Drainage facilities raVired within the
Limits of the development.
6. Off-tract Drainage Facilities. Drainage facilities regiired outside
the limits of the development.
7. edit. When a Drainage Fee ordinance allows construction of drainage
facilities in lieu of the payment of drainage fees, the eligible
duction costs may be applied as a credit against the drainage area
fee obligation.
a. PAimbursement. Payment to the developer for the eligible cwt of
installing drainage area facilities 121 excess of the drainage area fee
obligation.
LL. GM2p,L- Installation of drainage facilities rvqu]sed as a corxiition of
Property development can be very qtly, and in many cases benefits other
properties wi.thi.n the watershed. A Drainage Fee Crdinance, spreads the costs
of the drainage facilities to all of the benefitting properties and ensures,
tbtvugtl a system of fees, credits, and reimbursements, equitable financial
participation.
Tae drainage fee creates a fee obligation on all prcpP—r- es
it��in the Drai.rage ?-ea. T::e c:._ a^ce :mss ceerative mm a des
i.
develop or improve a parcel of land. The drainage area fee obligation is
limited to the fee due arra is payable either in the form of cash or the
installation of a portion "of the drainage facilities shown on the adopted
drainage area plan.
When a condition of development requires the construction of drainage
facilities with a cast in excess of the drainage fee obligation imposed by
the fee ordinance, a portion of . the excesscost may be eligible for
III. Eligible Ccsts. A portion of the cast to install drainage facilities shown,
on the adopted drainage area plan may be eligible for credit against nsr the
required drainage fees and for reimb=7zement of costs in PYA of the
drainage fee obligation. Credit or reimbursement shall be limited to the
following eligible costs:
1. Actual in-tract and off-tract construction costs plus a fixed amount of
7 percent of the in-tract construction cost and 14 percent of the off-
tract construction cost for allowance of miscellaneous developer's
Costs, including contract preparation, engineering, bonding, etc. .
Construction acts do not include utility relocations or the
acquisition of rights of way.
2. Actual public agency project inspection fees for only those drainage
area facilities shown on the adapted drainage plan.
3. Actual off-tract utility relocation cats.
4. Actual off-tract right of way acquisition costs needed for the
installation of drainage area facilities, provided the developer does
not have a beneficial interest in the off-tract property.
The determination of construction costs will be based on at least three
independent bids. Me developer shall submit said bids to the District for
review and concurrence. Upon District ==n=erx::e with the bids, the lowest'
bid shall be the basis for det'ormination of the credit and reinbirsement
amount.
The District reserves the right to. reject the developer's bids or any other
proposed value of said eligible costs and to calculate said casts and the
fixed markLzps using then anent pries.
If the developer elects to install a more costly drainage system than shown
on the adopted drainage area plan; the District reserves the riot to
calculate said eligible casts using the then current prices for only the
facilities shown on the adopted plan.
IV. CYedit. The developer may apply as a credit toward the drainage fee
obligation the eligible costs to c=-strvct drainage area facilities.
V. Reimbursement. .
A. here the amount of said eligible costs exp the drainage fee due,
the developer, upon entering into a reimbursement ent• agent with the
District, shall be eligible for a percentage reimbursement on the
amount of the eligible costs dete=ned by Section M. above, in
excess of the drainage fee due as follows:
Off-tract work: 100% (One Hundred Percent)
Orrtract work : 5046 (Fifty Perceuit)
Prior to the application of the above percentages, the eligible costs
in excess of the drainage fee due shall be prorated between off-tract
work and on-tract work in the same proportion as the total eligible
costs for off-tract work and on-tract work are to the total eligible
costs.
B_ The rentursement shall be subject to the follaring limitations:
1. Raimbuxse ents --wall be paid only from drainage fees collected
puazsuant to a Drainage Fee Ordinance.
2. If more than one reimbursement atent is in effect in a
Drainage Area, the reimba cement payment to each agreement shall
be based on the ratio of each agreement's original amount to the
total original amort of all outstanding reimbursement ants.
3. The District reserves the right to utilize not more than 80
percent of the drainage fees collected annually, on a fiscal year
basis, for the purpose of asking re 1, ,, 1,t payments.
4. Pa2mbarsement payments shall be made gaarterlyr except that,
during any quarter the District reserves the right not to maks
said payments if the amount of available funis to be disbursed is
less than $5,000.
5. Reiub rrsement agreements shall remain in effect for 40 quarters.
The first quarter shall be the one following the darter in which
the first rei bursement payment is made. Any offg balances
owed at the end of the 40 quarters shall be waived by the
developer.
6. Reimbursemerzt agreements executed pgdgr to a government loan
sball share with the government loan and other
agreement(s) the payments calculated in paragraph B.2 above.
7. Paimbursement agreement(s) executed s. gent to a gavertmient
loan(s) shall have payments "calculated" using the pry-rata basis
of paragraph B.2. above. However, in order to accelerate
repayment of the goverrment loan(s) , the "calculated" payment
shall be applied to repayment of the goverrmlent loan(s), rather
than be disbursed to the subsequent reimburse snt agreement(s) .
3
Upon full repayment of the gave irm ent loans) , reimbursement
payments , shall . camP-nce to the subsequent
agreement-(S) . -T e forty quarter time limit for a subsequent
rainburspment agreement shall not start until the date the first
payment is masse to the reanb rsem nt: agreement-
V1. A=licability: Upon adaption by a drainage area, this policy shall be the
basis for all subsequent agreements in that drainage area.
T11pollcy Will not alter any reimbursement agreement executed pur�t: to
a different policy.
RSC:sj
❑A:Rei IC
March 8, 1990
4
EXHIBIT 2
Page 1 of 1
Richard Hobin
From: Tim Jensen [tjens@pw.cccounty.us]
Sent: Thursday, July 31, 2008 2:36 PM
To: richard@hobinlaw.com
Subject: County Counsel Opinion on Drainage Facilities Construction and Right of Way Agreement
Mr. Hobin,
We have received an opinion from our County Counsel regarding the 1992 "Drainage Facilities Construction and
Right of Way Agreement" between,Stamm, Adjacent Owners, and the FC District. Their opinion is that there is no
provision in FC District policy (1989 Drainage Area Credit and Reimbursement Policy), past practice, or this
agreement that allows the transfer or sale of fee credits. Specifically, this agreement does not allow the transfer
or sale of credits to a future property owner on a parcel listed in the agreement, nor to a property owner listed in
the agreement holding.a parcel not listed in the agreement. The agreement is specifically lacking a statement
regarding "successors and assigns." In Section 7.D, the agreement states that it provides for"credit against
future drainage fees payable for future development of their properties," and specifically lists and describes "their
properties" in exhibits.. Furthermore, we are not aware of any legal requirement outside this agreement which
would direct the FC District to allow the transfer or sale of credits. We can find no legal reason to interpret the
agreement another way or deviate from it.
The 2001 "Purchase and Sale Agreement" between the FC District and Frank P. Bellecci, et. al. provides for
"crediting the undersigned Grantor, his successors and assigns." Thus, for that agreement, we will allow the sale
or transfer of fee credits for any of the six parcel numbers listed in the agreement.
I apologize for the delay in getting this response to you. Please contact me if you have any questions, or to
discuss this further. -Tim
Tim Jensen, PE
Senior Civil Engineer
Current Development Engineering
Contra Costa County Flood Control-and Water Conservation District
Contra Costa County Public Works Department
255 Glacier Drive
Martinez, CA 94553
(925) 313-2390
fiens@pw.cccounty.us
www.ccr)ublicworks.org
Accredited by the American Public Works Association
x] Flood Control Logo-hoz.jpg
NEW
Contra Costa
7APublic Works
7/31/2008
A\la\
Contra Cost- County Maurice C iefE
y� r ex officio Chief Engineer
Flood Cont o 1 R.MitchChief
Avalon,
Deputy Chief Engineer
&Water Conservation District
March 19, 2008
RIEcE,lue n-
Richard Hobin
L+u
Hobin,.Shingler & Simon, LLP 11 �
1011 A Street
Antioch, CA 94509-2323
Our File: 3029G-06 051-052-096
X-Ref: 3029G-06 051-052-110
Dear Mr. Hobin:
We received the facsimile copy of your February. 25, 2008, letter regarding Drainage Area 29G
(DA 29G) fee credits for Walter Stevens and Stamm Theaters, Incorporated, and their proposal
to sell the fee credits to Markstein Sales Company (Markstein).
On February 21, 2008, we requested that our County Counsel review the agreement entitled
"Drainage Facilities Construction and Right of Way Agreement" dated September 30, 1992, and
your request:to allowthetransfer of specified fee credits to Markstein. We anticipate obtaining
their determination approximately 30 days from the date of our request.
With regard to the Markstein project, we required the developer to directly deposit into a
Contra Costa County Flood Control & Water Conservation District (FC District) trust account the
calculated DA 29G fees, prior to the issuance of the City of Antioch's building permit. The DA
29G fee of $294,963 was collected on March 6, 2008. The funds will be held until we have
received direction from our County Counsel and completed the necessary documentation to
transfer allowable DA 29G fee credits to Markstein. Based on the direction we receive, we will
either move the funds to the DA 29G account or refund the deposit to Markstein.
We thank you for your patience. Please call Mario Consolacion at (925) 313-2283 or me at
(925) 313-2396 if you have any questions.
Sincerely,
Tim Jensen
Associate Civil Engineer
Flood Control Engineering
TI:MAC:cw
G:\FldCd\CurDev\CITIES\Antioch\3029G-06\APN 051-052-096,Stamm Theaters,Inc\Hobin response.doc
c: Greg Connaughton,Flood Control
Bob Faraone,Flood Control
Craig Standafer,Flood Control
Mario Consolacion,Flood Control
George F.Stamm,Stamm Theaters,Inc.,P.O.Box 633,Antioch,CA 94509
Larry Munn,City of Antioch,Building Inspection Dept.,P.O.Box 5007,Antioch,CA 94531-7034
'Accredited by the American Public Works Association"
255 Glacier Drive Martinez, CA 94553-4825
TEL: (925) 313-2000 • FAX: (925) 313-2333