HomeMy WebLinkAboutMINUTES - 12202005 - C.135 J
TO: BOARD OF SUPERVISORS
FROM: JOHN SWEETEN, COUNTY ADMINISTRATOR
DATE: DECEMBER 20, 2005
SUBJECT: Approve the County Service Area M-29 Reimbursement Agreement Between the County,the City of
San Ramon, Shapell Industries and Windemere BLC Land Company for Costs of City Services in the
Doughtery Valley(San Ramon Area)
SPECIFIC REQUEST(S)OR RECOMMENDATION(S)&BACKGROUND AND 7USTIFICATION
1. RECOMMENDED ACTION:
1. APPROVE and AUTHORIZE]the Chair of the Board of Supervisors to execute the County Service Area
(CSA) Reimbursement Agreement.
2. DIRECT the Auditor-Controller to issue warrants to the City of San Ramon in the amount set forth
below pursuant to the Reimbursement Agreement
a. FY 2004/05: $1,788,433 from CSA assessment and special tax revenue.
b. FY 2005/06: $1,363,996 advance of the city's share of the 1%property tax.
c. FY 2005/06: $3,835,672 from CSA assessment and special tax revenue.
3. DIRECT the Auditor-Controller to journal$400,000 for FY 2005/06 to the County Library from excess
CSA assessment and special tax revenue, pursuant to the Reimbursement Agreement.
Continued on Attachment:-X SIGNATURE:
✓RECOMMENDATION OF COUNTY ADMINISTRATOR
_RECOMMENDATION OF BOARD COMMITTEE
—APPROVE —OTHER
SIGNATURE(S): L
ACTION OF BOARD ON 1 ?iU APPROVED AS RECOMMENDED OTHER
VOTE OF SUPERVISORS I hereby certify that this is a true and correct copy
UNANIMOUS(ABSENTrK
)
AYES: NOES: of an action taken and entered on the minutes of
ABSENT: ABSTAIN: the Board of Supervisors on the date shown.
HB:sg
G:\GrpData�Admin\HeatherVBO\Reimb Agrmt San Ramon.doc
ATTESTED: OS
Orig.Div: Public Works(Admin Svcs)
Contact: Heather Ballenger(313-2371) John Sweeten, Clerk bf the Board of Supervisors
c: S.Sweeten,County Administrator and County Administrator
S.Hoffman,Assistant County Administrator
M.Shin,Public Works Director Q
0
By Deputy
j.
SUBJECT: County Service Area M-29 Reimbursement Agreement Between the County,the City of San Ramon,
Shapell Industries and Windemere BLC Land Company for Costs of City Services in the Doughtery
Valley(San Ramon Area) '
DATE: DECEMBER 20, 2005
PAGE 2 of 2
FINANCIAL IMPACT:
There is no impact to the General Fund. County Service Area M-29 funds have been collected from property tax and
CSA assessment and special tax revenue. These funds are to be reimbursed to the City of San Ramon for various
municipal services provided within the boiundaries of CSA M-29 pursuant to the 1994 Settlement Agreement that
allowed for development of the Dougherty Valley.
REASONS FOR RECOMMENDATIONS AND BACKGROUND:
For the past few years County staff has been working with the City of San Ramon (City), Shapell Industries and
Windemere BLC Land Company on a comprehensive Reimbursement Agreement("Agreement")pursuant to both
the 1994 Settlement Agreement and Memorandum of Understanding (MOU) relating to the development of the
Dougherty Valley. This Agreement is intended to implement and clarify the MOU by providing additional details
regarding steps required for the County, operating as CSA M-29, to reimburse the City for services the City has
provided to the residents of Dougherty Valley.
The Agreement outlines a process for the City to receive reimbursement of its share of the 1%property tax and the
CSA M-29 Assessment and special tax revenue. The Agreement also provides funding for five years for the
operation of the Dougherty Station Library that will be owned and maintained by the City and operated by the
County. The Library funds will be available commencing in Fiscal Year 2005/06 and continuing through FY
2009/10. Shapell Industries,Windemere BLC Land Company and the City of San Ramon at its December 13,2005
City Council meeting have executed the Agreement.
Prior to the Agreement, the parties approved three interim Reimbursement Agreements to cover the City's costs.
The last or third interim Reimbursement Agreement provided a reimbursement to the City in the sum of$619,464 to
cover the balance of fiscal year 2003-04,, and a $774,180 advance for Fiscal Year 2004-05. The City has now
invoiced the County in the amount of$61988,101. The invoice requests a final payment for fiscal year 2004-05
$1,788,433 and an advance of$5,199,688 for fiscal year 2005-06. This advance is $1,363,996 of the 1%property
tax and $3,835,672 in CSA M-29 assessment and special tax revenue.
CONSEQUENCES OF NEGATIVE ACTION:
The City of San Ramon will not receive reimbursement for city services performed in Dougherty Valley,(CSA M-
29) as agreed to under terms of the 1994 Settlement Agreement.
Y,
CSA REIMBURSEMENT AGREEMENT
THIS CSA REIMBURSEMENT AGREEMENT (the"Agreement'), dated as of this
day of 200 1 (the "Effective Date"), is made by and among CONTRA
COSTA COUNTY, a political subdivision of the State of California(the "County"), the CITY OF
SAN RAMON, a municipal corporation (the"City"), WINDEMERE BLC LAND COMPANY
LLC, a California limited liability company("Windemere"), and SHAPELL INDUSTRIES,
INC., a Delaware corporation("Shapell"). Windemere and Shapell are from time to time
hereinafter referred to individually as "Developer"and collectively as "Developers."
Developers, City and County are from time to time hereinafter referred to individually as a
"Party" and collectively as the "Parties."
RECITALS
A. The County, the City, Shapell and Windemere (as successor in interest to
Windemere Ranch Partners), arel parties to that certain Memorandum of Understanding Between
Contra Costa County, the City of San Ramon, Shapell Industries and Windemere Ranch Partners
Relating to the Development of the Dougherty Valley, dated as of October 15, 1997 (the
"MOU"), which was entered into as an instrument of compliance with that certain agreement
entered into-by and between the County, the City, the Town of Danville, Shapell and Windemere
Ranch Partners (predecessor in interest to Windemere), dated May 11, 1994, to settle certain
claims brought by the City and the Town of Danville as more fully described therein(the
"Settlement Agreement').
B. This Agreement is being entered into to implement and clarify the MOU by
providing additional details regarding the steps required for the County, operating as CSA M-29,
to reimburse the City for services the City has provided to the residents of Dougherty Valley as
required by the Settlement Agreement and the MOU.
NOW, THEREFORE, in consideration of the promises set forth above and for other good
and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the
Parties hereby agree as follows:
AGREEMENT
1. RECITALS AND DEFINITIONS.
(a) The Recitals set forth above are true and correct and are incorporated into
the body of this Agreement as thi ugh expressly set forth herein.
(b) All capitalized terms used and not otherwise defined herein shall have the
meaning ascribed to such terms in the MOU.
(c) This Agrel Lent is intended to be consistent with the Settlement
Agreement; provided, however, that in the event of any conflict between this Agreement and the
Settlement Agreement,the Settlement Agreement shall control on the point of conflict. In the
event of any conflict between this Agreement and the MOU, this Agreement shall control on the
point of conflict.
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CSA M-29 Reimbursement Agreement
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2. HIERARCHY OF REVENUES AS APPLIED TO EXPENDITURE. There
are several funding sources for services provided by the City to Dougherty Valley, which include
Direct Revenues (which shall be deemed to exclude the Tax/Assessment revenues), Indirect
Revenues, and revenues from the Tax/Assessment, each as further described in Section 4 below.
For purposes of determining the fiscal balance of CSA M-29 from year-to-year, revenue for
reimbursement to the City will be applied to service expenditures or costs within CSA M-29 in
the following order: (1) all Direct Revenue; (2) all Indirect Revenue; and then lastly(3) all
Tax/Assessment revenue, net of County expenses as described in Section 5(b)below
(collectively, the"CSA Revenuei").
3. BUDGET PROCESS. An Annual Budget will be created each fiscal year based
upon the assumptions and clarifications set forth in this Agreement. The Five-Year Budget
described in the MOU shall no longer be required. The Annual Budget will be considered in the
reimbursement process for the following year, as described in this Agreement. Consistent with
the MOU, it is the understanding of the Parties that the Board of Supervisors of the County (the
"Board of Supervisors"), in the exercise of its authority as the governing body of CSA M-29,
will finalize and adopt an Annual Budget that reflects expenditures required under the Settlement
Agreement.
(a) Annual Budget Process Timeline. Prior to June 30 of each year, the
County shall approve the Annual Budget, which will be prepared in accordance with the
following timeline:
Budget Process Timeline
Step Target Date Action Item
Developers provide the City:
1) Projected dwelling units—format included in
Exhibit A-1 attached hereto and incorporated herein by
Step No. 1 March 15th this reference.
2) Projected infrastructure and public facilities—
format included in attached Exhibit A-2 attached
hereto and incorporated herein by this reference.
City prepares draft Annual Budget for upcoming fiscal
year(beginning July 1) using the format included in
Exhibit B-1 attached hereto and incorporated herein by
this reference. City also prepares supporting work
schedules (the"Work Schedules") for draft Annual
Step No. 2 April 15th Budget for upcoming fiscal year using the format
included in Exhibit B-2 attached hereto and
incorporated herein by this reference. A schedule of
certain sample Annual Budget calculations is included
in Exhibit B-3 attached hereto and incorporated herein
by this reference (the "Schedule of Sample
Calculations").
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Step No. 3 April 15th1- 30th City meets with Developers and County staff to review
and discuss draft Annual Budget and Work Schedules
The City staff and Developers agree on Annual Budget
(and Work Schedules), such agreement not to be
Step No. 4 May 30th unreasonably withheld, delayed or conditioned,prior
to City setting City Council date for approval of
Annual Budget
Step No. 5 June ist After the Annual Budget is approved by the City
Council it is submitted to County staff
County staff prepares staff report and places an item on
Step No. 6 June 15th the agenda for the Board of Supervisors to approve
Annual Budget
Step No. 7 June 3I th The Board of Supervisors approves final Annual
Budget
(b) Populatiol Assumptions. The following assumptions shall be used in
connection with determining the(Annual Budget and, as noted, reimbursement requests by the
City:
(i) "CSA Population" means the entire population in Dougherty
Valley(annexed and un-annexed territories) and will be calculated based on an average of 2.8
persons per single-family and multi-family household and discounted for units projected by the
Developers as per Step 1 of the Budget Process Timeline described in Section 3(a) above in the
then-current fiscal year by fifty percent(50%) to account for mid-year move-ins. For budgeting
purposes, the Developers will provide the City with a 2-year projection of the number of single-
family and multi-family units they expect to be sold and, in the case of multi-family units,
occupied, in the then-current fiscal year and the immediately succeeding fiscal year. However,
for reimbursement purposes, the actual number of units sold and, in the case of multi-family
units, occupied, within the Dougherty Valley for the fiscal year(provided by the Developers)
will be used and discounted by fifty percent(50%). Examples for calculating the CSA
Population for budgeting and reimbursement purposes are shown on attached Exhibit B-3.
(ii) "AI nexed Population"means the population only in the portion of
Dougherty Valley that has been annexed to the City by January of the relevant fiscal year, as
described below. The Annexed Population will be calculated based on an average of 2.8 persons
per single-family and multi-family household and discounted for units projected by the
Developers as per Step 1 of the Budget Process Timeline described in Section 3(a) above in the
then-current fiscal year by fifty percent(50%) to account for mid-year move-ins. For budgeting,
the relevant units shall be those that have been annexed to the City by January of the fiscal year
prior to the year for which the budget is being prepared, unless more recent information is
available. For reimbursement, the actual number of units that have been annexed to the City by
January of the fiscal year for which costs are being reimbursed will be used(based upon
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information provided by the Developers). For the purpose of calculating the "Annexed
Population," the annexed units in any given fiscal year are derived from reviewing the most
recent Local Agency Formation Commission Annexation Resolutions for Dougherty Valley and
the associated maps. Examples for calculating the Annexed Population for budgeting and
reimbursement purposes are shown n on attached Exhibit B-3.
(iii) "City Population"means the entire population within the City as
stated in the Department of Finance E-5 Report as of January I or the mid-point for the relevant
fiscal year. For budgeting purposes, this will generally be the most current population for the
fiscal year prior to the year for which the budget is being prepared. For reimbursement purposes,
the calculation shall be based on the actual population from the E-5 report that includes
population data for the fiscal year as of January I or the mid-point of the fiscal year for which
costs are being reimbursed. Examples for calculating the City Population for budgeting and
reimbursement purposes are shown on attached Exhibit B-3.
(c) Consume Price Index Clarification. Certain revenue and expenditures
related to CSA M-29 allow for alConsumer Price Index adjustment. The MOU states that the
Consumer Price Index for the San Francisco-Oakland-San Jose area("Consumer Price Index")
for April of the immediately preceding fiscal year shall be used; however, in order to meet the
Annual Budget deadlines set forth above, the Consumer Price Index for February of the
immediately preceding fiscal year shall be used instead. The current and recent Consumer Price
Index figures can be accessed at www.bls.gov/ro9/1)acliist.littn or from the U.S. Department of.
Labor, Bureau of Labor Statistics, in San Francisco. The base year Consumer Price Index is
159.6 and is based upon April 1997. The most recent February annual Consumer Price Index(as
reported above) shall be used to adjust sales tax spending rates and Tax/Assessment figures as
shown in the Annual Budget, and for other Consumer Price Index adjustments expressly
provided for in the MOU and this Agreement. Examples for calculating the Consumer Price
Index for budgeting and reimbursement purposes are shown on attached Exhibit B-3.
(d) Average Revenue Per Capita. The average revenue per capita
(Citywide) is used in Indirect Revenue and certain expenditure calculations for CSA M-29. For
budgeting purposes this is the"budgeted"total City-wide revenue for a category, as shown in the
most recently adopted City budget, divided by the "City Population." For reimbursement
purposes, this is the "actual" total City-wide amount accounted for regarding that budget
category divided by the "City Population" for the year in which costs are being reimbursed.
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4. REVENUES AND ASSUMPTIONS.
(a)' Direct Rel enues. Direct Revenues include General Ad Valorem Property
Tax Revenue(as defined in Section 4(a)(i)below) and Real Property Transfer Tax Revenue(as
defined in Section 4(a)(ii)below), but not Tax/Assessment revenues. For budgeting purposes,
supplemental property taxes shall be excluded from the definition of Direct Revenues. For
reimbursement purposes, supplemental property taxes shall be included within the definition of
Direct Revenues.
(i) General Ad Valorem Property Tax. As discussed in the MOU,
CSA M-29 shall receive four percent(4%) of all property tax revenue (i.e.,4% of the total 1%)
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CSA M-29 Reimbursement Agreement
generated within CSA M-29 (the "General Ad Valorem Property Tax Revenue"). This revenue
will be generated from both the nn-annexed and annexed areas of CSA M-29. For purposes of
budgeting annual property tax revenue, the Annual Budget shall be calculated based upon the
following: (w) the sum total of actual assessed value for the prior fiscal year; (x) actual sales
prices of homes and other property sold by each Developer during the prior fiscal year; (y)an
estimate of increases in the existing assessed value base (maximum of 2%); and(z) an
assumption for property that turns over and is resold at current market value in a given year.
Actual new home sales, the 2% (or less) increase, and the average price of resales within the
Dougherty Valley shall be the basis of the estimated annual increase in assessed value for
purposes of projecting property tax revenue. For reimbursement, CSA M-29's actual General
Ad Valorem Property Tax Revenue will be used. Examples for calculating the General Ad
Valorem Property Tax Revenue for budgeting and reimbursement purposes are shown on
attached Exhibit B-3.
(ii) Real Property Transfer Tax Revenues. Real property transfer tax
revenue ("Real Property Transfer Tax Revenue") is paid to the County Recorder's office and
occurs when property sells for the first time and each time it is resold over time. Real Property
Transfer Tax Revenue applies tolall real property, including commercial property. This revenue
is shared between the County and City on a fifty-fifty(50%-50%) basis for real property that has
been annexed to the City. For real property that has not been annexed to the City, the County
receives one hundred percent(100%) of the Real Property Transfer Tax Revenue. Each month,
the City receives a report from the County Recorder's Office for the total amount of Real
Property Transfer Tax Revenue that was generated within the City limits. Because the
annexation process to incorporate Dougherty Valley will be taking place in phases over the next
10-20 years, actual Real Property Transfer Tax Revenue collected within the boundaries of CSA
M-29 shall be manually tracked by the City each month. In an effort to ensure that the City and
County each receive the proper amount of Real Property Transfer Tax Revenue, the Developers
will provide information to their respective title companies after each annexation phase that will
allow the title companies to correctly reflect the incorporation status on the deeds of real
property sold thereafter. For budgeting purposes, Real Property Transfer Tax Revenue will be
calculated by assuming that the City's fifty percent(50%) share of Real Property Transfer Tax
Revenue for all new units projected by the Developers as per Step 1 of the Budget Process
Timeline described in Section 3(a)above, and resold unitsz, within the portion of the Dougherty
Valley annexed to the City as of January of the then-current fiscal year(as estimated in
accordance with Section 3(b)(ii) above), will be treated as a Direct Revenue. For reimbursement
purposes, the amount of Real Property Transfer Tax Revenue used shall be the revenue actually
received by the City, for the fiscal year in which costs are being reimbursed, for transactions
located within the boundaries of CSA M-29. Examples for calculating the Real Property Tax
Revenue for budgeting and reimbursement purposes are shown on attached Exhibit B-3.
(b) Indirect Revenues. Indirect Revenues include sales tax revenues, fines
and forfeitures, licenses and permits, franchise fees and motor vehicle in-lieu fees,each as
further described below, and any substitute categories of revenues provided by the State in lieu
of any category of Indirect Revenue described herein. These are City general fund revenues, and
Turnover assumptions include 14.29%of single family detached residential property each year only.
2 Turnover assumptions include 14.29%of single family detached residential property each year only.
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the portion of each category attributable to the Dougherty Valley, as described below, will be
used to offset the amount of reintioursement to the City under the MOU and this Agreement.
(i) Sales Tax Revenues. Sales tax shall be calculated as described in
the MOU and based on the"spending rate" of$14,000 per capita(resident), multiplied by
twenty-five percent(25%) (i.e., $3,500 per capita), multiplied by the City's sales tax rate of
0.98%, multiplied by the CSA Population. The $14,000 per capita spending rate shall be
adjusted each year by the Consumer Price Index. For instance, the FY04-05 spending rate is
$17,377.19 per capita. For budgeting purposes, the estimated CSA Population and spending rate
for the budget year will be used. For reimbursement purposes, the actual CSA Population, and
the spending rate used in developing the Annual Budget for the fiscal year for which costs are
being reimbursed, will be used. Examples for calculating the Sales Tax Revenues for budgeting
and reimbursement purposes are(shown on attached Exhibit B-3.
(ii) Fines and Forfeitures. For budgeting purposes, fines and
forfeitures from areas within the jurisdiction of the City shall be calculated based on the average
revenue per capita in the City(as described in Section 3(d) above), and applied to the Annexed
Population. For reimbursement purposes, the actual average revenue per capita will be applied
to the actual Annexed Population, each calculated for the same fiscal year for which costs are
being reimbursed. Examples for calculating the fines and forfeitures for budgeting and
reimbursement purposes are shown on attached Exhibit B-3.
(iii) Li lenses and Permits and Franchise Fees. Licenses and permits
and franchise fees means one hundred percent(100%) of Pacific Gas & Electric fees, one
hundred percent (100%) of bicycle permit fees, and ten percent(10%) of garbage franchise fees
imposed by the City only; any and all other business license fees, other franchise fees and all
planning and building permit fees are excluded. For budgeting purposes, Franchise Fees shall be
calculated based on the average revenue per capita in the City (as described in Section 3(d)
above), and applied to theAnnexed Population. For reimbursement purposes, the actual average
revenue per capita for the fiscal year for which costs are being reimbursed will be applied to that
same year's actual Annexed Population. Examples for calculating the franchise fees for
budgeting and reimbursement purposes are shown on attached Exhibit B-3.
(iv) Mltor Vehicle In-Lieu Fees (called intergovernmental Revenue in
MDU). Motor Vehicle In-Lieu Fees revenue shall be budgeted based on the recent revisions to
state law and their impact on the distribution of Motor Vehicle In-Lieu Fees in 2004-05. This
revenue source is now distributed in two ways. A small portion of the fees are distributed on a
per capita basis. This"State Allocated"portion of the fees shall be budgeted based on the
average revenue per-capita received in the City (as described in Section 3(d) above), and applied
to the Annexed Population, multiplied by seventy five percent(75%). The remaining portion of
the fees are distributed on a property assessed valuation basis ("Property Tax Backfill"). The
base year to be used to establish the total assessed valuation within the City is 2003-04. In 2003-
04, only Dougherty Valley, Gale Phase 1 was included within the City limits and all other
Dougherty Valley territory still remained within the unincorporated area of the County. The
Property Tax Backfill portion shall be budgeted based upon the pro-rata share of assessed
valuation within Dougherty Valley, Gale Phase I compared to the remaining assessed valuation
within the City (does not include territory annexed after 2003-04), multiplied by seventy five
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CSA M-29 Reimbursement Agreement
percent(75%). With respect to the State Allocated portion, for reimbursement purposes, the
actual average revenue per capita for the fiscal year for which costs are being reimbursed will be
applied to that same year's actual Annexed Population. With respect to the Property Tax
Backfill portion, for reimbursement purposes, the actual percentage of Dougherty Valley, Gale
Phase 1 assessed valuation compared to the total assessed valuation of the territory that was
located within the City as of 2003-04 will be multiplied by the distribution and then multiplied
by seventy five percent(75%). Examples for calculating the Motor Vehicle In-Lieu Fees for
budgeting and reimbursement pu{rposes are shown on attached Exhibit B-3.
(c) Tax/Assessment. The Tax/Assessment will be levied by the County
Public Works Department on all 1parcels of land within CSA M-29 that have had a building
foundation poured prior to July 1 of the fiscal year in which the Tax/Assessment is calculated.
(i) LeI vine of Tax/Assessment and Counting of Parcels. The
Tax/Assessment includes the ar ual assessment, with inflators, levied on all real property within
Dougherty Valley at the rates established in Exhibit C of the MOU. Tax rate multipliers and
tiers apply as described in Section 5.1(b) of the MOU. The CSA M-29 tax rates shall be adjusted
each year based on the prior year's Consumer Price Index for the month of February. The City
will work closely with the County to ensure that all parcels that should be levied a
Tax/Assessment in a given fiscal year are included in the City's Annual Budget submitted to the
County. This includes counting and tracking foundations that have been poured and not just
counting houses and other real property that have been constructed and/or sold. For
reimbursement purposes, the actual Tax/Assessment allocated to CSA M-29 by the County for
the fiscal year for which costs are being reimbursed will be used.
5. EXPENDITURES AND LEVELS OF SERVICE.
(a) Citv Exn Inditures. Maintenance services within CSA M-29 shall be
provided by the City according to adopted service standards provided elsewhere in the City as
documented in the City's Adopted Annual Budget and reflected in the budget for CSA M-29.
There are eight(8) categories of activities for which expenditures will be budgeted and for which
the City may seek reimbursement, as listed in Section 5(b)below. A budget will be created for
each expenditure category during the annual process using the most up to date cost information
available. In addition, actual costs per unit for each line item within the categories will be
tracked and provided for comparison purposes when developing the Annual Budget for the
following year. If actual costs per unit for a line item are not available then the most recent
average cost per unit(e.g., overall average park acreage or overall average street light
maintenance cost for similar facilities elsewhere in the City)from elsewhere in the City will be
used for comparison purposes.
(b) All of the following eight(8) categories of activities shall apply only to
City activities within the boundaries of CSA M-29:
(i) Internal Road Maintenance. This category includes pavement
maintenance, street sweeping, sign maintenance, street lighting, sidewalk repair, street striping
and re-striping,both new and repair of traffic signals, and any other miscellaneous street-related
maintenance costs.
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(ii) Street Landscaping. This category includes maintenance of all
street medians,park strips, street trees, entry and water features, light rail right-of-way and
slopes, and associated utility costs for such maintenance.
(iii) Palk Maintenance. This category includes maintenance of all
public pocket, neighborhood, community, linear and creek corridor parks, and a capital reserve
fund for park improvement and replacement of Twenty Five Thousand Dollars ($25,000)per
year(subject to Consumer Price Index adjustment) after the first park is developed and
dedicated.
(iv) Open Space Maintenance. This category includes maintenance of
all open space areas, trails and related staging areas, other than such activities performed by the
Geologic Hazard Abatement District.
(v) Flood Control. This category includes maintenance of all flood
control related improvements, such as detention basins, water quality ponds, and outfall
structures, including private and public basins, and related capital replacement reserve fund;
provided, however, that maintenance of the private detention basin(s) on the golf course
constructed as a part of Country Club at Gale Ranch shall be excluded from this category and
shall not be considered a City expenditure for purposes of this Agreement, although City
oversight of the maintenance for'such private detention basin(s) shall not be excluded from this
category and shall be considered a City expenditure for purposes of this Agreement.
(vi) Police Services. This category includes all related police staffing,
administrative, vehicle maintenance and related police services costs.
(vii) Comunity Facilities Maintenance. This category includes
maintenance of all public and community facilities constructed in Dougherty Valley, including
the community center,police substation,Library (as defined in Section 5(c)(iii) below),
corporation yard and senior center.
(viii) Ci I Administrative Overhead Charge. This expenditure shall
equal eleven percent(11%) of all of the expenditures listed in subsections (i) through (vii) above.
(c) County Expenditures.
(i) Col my Administrative Overhead Chargee. The expenditures
described in this subsection 5(c)(J)will be reimbursed to the County directly from the
Tax/Assessment revenue before such revenue is used to reimburse City costs and will not be
funded with any other CSA M-29 or other revenue source. This County expenditure will include
all County administrative services (except the Tax/Assessment Collection Fees described below)
related to the administration of CSA M-29. This annual charge will include, but not be limited
to, charges from Public Works, Auditor-Controller's Office, Department of Information
Technology, County Counsel, County Treasurer, etc. The County will receive reimbursement
based upon actual costs; provided, however, that if the amount of such reimbursement exceeds
$25,000 (FY97-98 dollars, to be adjusted using the Consumer Price Index each fiscal year) in
any given fiscal year,the County will provide additional written information detailing what the
costs for the fiscal year were for, and explaining why costs were above the threshold(and any
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dispute regarding any such overage shall be resolved in accordance with the alternative dispute
resolution procedure described in Section 9 below).
(ii) C Iunty Annual Assessment Collection Fees. The expenditures
described in this subsection 5(c)(ii)will be reimbursed to the County directly from the
Tax/Assessment revenue before such revenue is used to reimburse City costs and will not be
funded with any other CSA M-29 or other revenue source. The County will be reimbursed for its
standard administrative charges related to levying and collecting the Tax/Assessment each fiscal
year(the"Tax/Assessment Collection Fees"). These fees will be the same the County charges
for similar services to other agencies within the County. The estimated charge is currently$1.00
per parcel.
(iii) County Library Services. After settlement for the fiscal years
described in this Section 5(c)(iii)below, any CSA Revenues in excess of the County's costs as
described in Section 5(c)(i) and 5(c )(ii) above and the City's costs as described in Section 6
above (the "Excess CSA Revenues")will be used to provide funding for the operation of the
library within CSA M-29 that wi11 be owned and maintained by the City and operated by the
County(the "Library"), subject)to the limitations described below. The Excess CSA Revenues
allocated for funding operation of the Library are hereinafter referred to as the "Library
Funds." The Library Funds shall be available every fiscal year commencing in FY 2005-06, and
continuing through FY 2009-10,Isubject to the limits described herein. In each such fiscal year,
the amount of Library Funds shall be equal to the lesser of(a)the total amount of Excess CSA
Revenues, if any, or(b) the amount nt applicable to such fiscal year as described below:
Fiscal Year I Maximum Amount of Library Funds
2005-06 $400,000
2006-07 $300,000
2007-08 $300,000
2008-09 $200,000
2009-10 1 $100,000
After fiscal year 21009-10, no further Excess CSA Revenues shall be used for the
operation of the Library. If in anly of the above-referenced five (5) fiscal years, the amount of the
Excess CSA Revenues is less than the "Maximum Amount of Library Funds" for such fiscal year
shown in the table immediately above (such difference being referred to hereinafter as a
"Library Shortfall'), the Library Shortfall shall be paid to the County from the following
sources of revenue in the following order of priority: (i) from the Capital Reserve Account, to
the extent funds are then available in the Capital Reserve Account, and then (ii) if insufficient
funds are then available in the Capital Reserve Account to pay for the entire Library Shortfall,
then the City shall advance the remaining balance of the Library Shortfall to CSA M-29 (which
will, in turn,be paid to the County),provided that any such funds advanced by the City shall be
accounted for as a City receivable, and the City shall receive a reimbursement for such advanced
9
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CSA M-29 Reimbursement Agreement
funds from the first available Excess CSA Revenues in subsequent fiscal years.
6. PREPAYMENTS AND REIMBURSEMENT OF FUNDS TO THE CITY
FOR PROVIDING SERVICES WITHIN CSA M-29.
(a) Upon written request by the City to the County, such request to be
submitted no earlier than October of each fiscal year, County shall prepay to the City a sum
equal to one hundred percent(100%) of the total anticipated revenue from the General Ad
Valorem Property Tax Revenue and no more than eighty percent(80%) of the Tax/Assessment
revenue for said fiscal year. Such prepayment will be made in two separate disbursements from
then-available funds within the County's CSA M-29 General Account. The amount of the
prepayment will be determined lI the County in its sole discretion in accordance with the
following standards;
(i) The amount of the first prepayment disbursement shall be one
hundred percent(100%) of the General Ad Valorem Property Tax Revenue through
approximately mid-December o I said fiscal year,plus no more than eighty percent(80%) of the
Tax/Assessment revenue through approximately mid-December of said fiscal year.
(ii) Thl amount of the second prepayment disbursement shall be one
hundred percent(100%) of the General Ad Valorem Property Tax Revenue through
approximately mid-April of said fiscal year, plus no more than eighty percent(80%) of the
Tax/Assessment revenue through approximately mid-April of said fiscal year, less the amount of
the first disbursement.
Notwithstanding the foregoing, the total prepayment to the City shall not exceed the
amount of the approved final Ani ual Budget for said fiscal year.
(b) Upon written request by the City to the County and Developers in the
format shown on Exhibit C attached hereto, the City will receive reimbursement from CSA
Revenues based upon actual costs incurred by the City for providing services within the
boundaries of CSA M-29. If the factual reimbursement request exceeds twenty percent(20%)
above amounts reflected in the approved final Annual Budget in any given category, the City
will provide documentation and written explanation justifying the overage to the reasonable
satisfaction of the Developers. If a Developer does not approve or disapprove the overage in
writing within thirty(30)days after such Developer's receipt of such documentation and written
explanation from the City, the ov erage will be deemed to be approved by such Developer.
Developers' approval of the overage shall not be unreasonably withheld, delayed or conditioned,
it being agreed by the Parties that a Developer may withhold its approval only if such Developer
reasonably believes that(a)the City's accounting is incorrect; (b) identified reimbursement costs
were not actually incurred by thel City, or(c) identified reimbursement costs were not incurred by
the City for the provision of services and/or the protection and/or maintenance of facilities within
CSA M-29. If there is a dispute regarding any such overage, such funds will not be reimbursed
to the City or deposited in the Capital Reserve account until the dispute is resolved.
10
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CSA M-29 Reimbursement Agreement
Y
1
(c) Prepayments of tax revenues and reimbursements to the City shall be
made for each fiscal year in accordance with the steps and general timetable set forth in the "City
Advance & Reimbursement Schi dule" immediately below:
City Advance & Reimbursement Schedule
Step Target Date Action Item
City requests from the County an advance of the
} revenue that is expected to be received from the
Step No. 1 October General Ad Valorem Property Tax Revenue and
I4 Tax/Assessment revenue from available funds within
the County's CSA M-29 General Account.
County provides City with prepayment from then-
available current year General Ad Valorem Property
Tax Revenue and Tax/Assessment revenue in the
County's CSA M-29 General Account. The amount of
Step No. 2 December the prepayment shall be 100% of the General Ad
Valorem Property Tax Revenue through approximately
mid-December and up to 80% of the Tax/Assessment
revenue through approximately mid-December(the
total prepayment shall not exceed the amount of the
approved final Annual Budget for the fiscal year).
County provides City with remainder of prepayment
from then-available current year General Ad Valorem
Property Tax Revenue and Tax/Assessment revenue in
the CSA Fund. The amount of prepayment shall be the
total of 100% of the General Ad Valorem Property Tax
Step No. 3 April Revenue through approximately mid-April and up to
80% of the Tax/Assessment revenue through
approximately mid-April, less any such amounts
previously paid to the City (the total prepayment shall
not exceed the amount of the approved final Annual
Budget for the fiscal year).
Step No. 4 Augui t Developers provide City with actual sales information
for the fiscal year.
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CSA M-29 Reimbursement Agreement
I
City provides County and Developers with accounting
of expenditures and prepayments for the fiscal year
and requests reimbursement for the amount, if any, that
the City expenditures within CSA M-29 incurred in
that fiscal year exceed the Real Property Transfer Tax
Revenue and Indirect Revenue attributable to the CSA,
and any advancement of funds from the County
Step No. 5 October pursuant to Step No. 2 and Step No. 3 above). If the
actual reimbursement amount exceeds the threshold
described in Section 6(b) above,the procedure
described in Section 6(b)will apply. If City
expenditures within CSA M-29 incurred for the fiscal
year are less than the offsetting amounts, all excess
prepayments shall be promptly returned by the City to
the County.
County and Developers review City's request for
reimbursement, if any, and if necessary request
additional backup information. If any category of City
Step No. 6 November expenditures exceeds the twenty-percent(20%)
threshold described in Section 6(b) above, such
overage shall be subject to the approval procedure
described in Section 6(b).
County reimburses the City for remaining funds due
and reasonably approved by County (and by
Step No. 7 December Developers in accordance with Section 6(b), if
applicable)resulting from CSA M-29 expenditures
incurred for the previous fiscal year, if any.
County transfers unspent Tax/Assessment Revenue
Step No. 8 December from the previous fiscal year to the Capital Reserve
account.
7. OTHER ISSUES PERTAINING TO REIMBURSEMENTS, CSA M-29
FUNDING AND OTHER PUBLIC AGENCIES.
(a) Capital Ri serve Account. After settlement for each fiscal year, except as
otherwise expressly provided in Section 5(c)(iii) above, any remaining Excess CSA Revenues
will be permanently transferred into the Capital Reserve account for construction of community
facilities in accordance with the MOU.
(b) Streamline of Reimbursement Process at Build-Out. At Build-Out, the
City and the County agree to explore methodologies to streamline the City reimbursement
process.
(c) Audits. Either Developer may, at its own discretion,upon written notice
to the other Parties, request a compliance audit by certified public accountants selected by such
Party to confirm consistency with this Agreement with respect to any and all reports by City of
CSA Revenues and expenditures; provided, however, that such audits shall take place no more
12
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CSA M-29 Reimbursement Agreement
frequently than once every calendar year. If as a result of the audit, it is determined by the
auditor that there exists a discrepancy in the financial reports prepared by City and that such
discrepancy has an impact on the reimbursement amount, then such discrepancy will be
remedied in the next following reimbursement request by the City. The cost of any such audit
shall be paid from the Tax/Assessment revenue after reimbursement of the County expenditures
described in Sections 5(c)(i) and 5(c)(ii) above; provided, that in no event shall such cost exceed
the amount of Ten Thousand DoIIlars (S 10,000)per audit.
8. MISCELLANEOUS PROVISIONS. The following provisions contained in this
Section 8 are intended to be consistent with, and generally track with, the corresponding
provisions contained in the MOO.
(a) No Agen y,Joint Venture or Partnership. It is specifically understood
and agreed to among the Parties that(i)the Project is a private development; (ii) the County has
no interest or responsibility for, or duty to, third parties concerning any improvements (other
than operating the Library); (iii)the City has no interest or responsibility for, or duty to, third
parties concerning any improvements until such time, and only until such time, that the City
accepts the same pursuant to the provisions of this Agreement or the MOU or in connection with
the various actions, approvals and agreements related to the Project; and (iv) the Parties hereby
renounce the existence of any form of agency relationship,joint venture or partnership between
or among any of the Parties and agree that nothing contained herein or in any document executed
in connection herewith shall be construed as creating any such relationship between these
Parties.
(b) No Third Party Beneficiaries. There are no third party beneficiaries
under this Agreement and only the Parties expressly referenced herein shall have the right to
enforce this Agreement.
(c) No Waiver of Tort Claims Act. In performing any activities required or
authorized by, or in any way related to, this Agreement, neither the County nor the City shall be
deemed to have waived any privileges and immunities provided by the Tort Claims Act(Gov.
Code, § 800 et seq.).
(d) Incorporation of Recitals and Introductory Paragraph. The Recitals
contained in this Agreement andlthe introductory paragraph preceding the Recitals are hereby
incorporated into this Agreement as if fully set forth herein. This Agreement, together with the
Settlement Agreement and the MOU, contains the entire understanding of the Parties relating to
the subject matter of this Agreement.
(e) Severability. If any term or provision of this Agreement, or the
application of any term or provision of this Agreement to a particular situation, is held by a court
of competent jurisdiction to be invalid, void or unenforceable, the remaining terms and
provisions of this Agreement, or the application of this Agreement to other situations, shall
continue in full force and effect unless amended or modified by mutual consent of the Parties.
Notwithstanding the foregoing, if any material provision of this Agreement, or the application of
such provision to a particular situation, is held to be invalid, void or unenforceable, either
13
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CSA M-29 Reimbursement Agreement
Developer may, in that Developer's sole and absolute discretion, terminate its rights and
obligations under this Agreement by providing written notice of such termination to the County.
(f) Other Ne essary Acts. Each Party shall execute and deliver to the other
all such additional instruments and documents as may be reasonably necessary to carry out and
secure to the other Parties the full and complete enjoyment of their rights and privileges under
this Agreement.
(g) Construction. This Agreement has been reviewed and revised by legal
counsel for each of the Parties and no presumption or rule that ambiguities shall be construed
against the drafting Party shall apply to the interpretation or enforcement of this Agreement.
(h) Remedies. Any Party may, in addition to any other rights or remedies,
institute an equitable action to cure, correct or remedy any default, enforce any covenant or
agreement herein, enjoin any threatened or attempted violation thereof, enforce by specific
performance the obligations andrights of the Parties hereto or to obtain any remedies consistent
with the foregoing and the purpose of this Agreement. In no event shall any Party be entitled to
monetary damages for breach of this Agreement by any other Party to this Agreement.
(i) California Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of California.
0) Attorney I' Fees. In the event of any litigation or arbitration between any
Parties regarding an alleged breach of this Agreement, no Party shall be entitled to any award of
attorneys' fees. 1
(k) Notices. Any notice or communication required under this Agreement
must be in writing and may be given either personally or by registered or certified mail, return
receipt requested. If given by registered or certified mail, such notice or communication shall be
deemed to have been given and received on the first to occur: (a) actual receipt by any of the
addressees designated below as the Party to whom notices are to be sent, or(b) five (5) days after
a registered or certified letter containing such notice, properly addressed, with postage prepaid, is
deposited in the United States mail. If personally delivered, a notice shall be deemed to have
been given when delivered to the Party to whom it is addressed. Any Party may at any time, by
giving ten(10) days' written notice to the other Parties, designate any other address in
substitution of the address to which such notice or communication shall be given. Such notices
or communications shall be given to the Parties at their addresses set forth below:
If to County, to:
Director of Public Works
255 Glacier Drive
Martinez, California 94553
Telephone: (925) 313-2000
Facsimile: (925) 313-2333
14
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CSA M-29 Reimbursement Agreement
With copies to:
County Counsel
Contra Costa County Administration Building
651 Pine Street, 9`"Floor
Martinez,JCalifornia 94553
Telephone: (925) 335-1800
Facsimile; (925) 646-1078
Director of Community Development
Contra Costa County Administrative Building
651 Pine Street,4`"Floor North Wing
Martinez,ICA 94553
Telephone: (925) 335-1290
Facsimile1 (9925) 335-1299
If to City, to:
City Manager/City Clerk
City of San Ramon
2222 Camino Ramon
San Ramon, California 94583
Telephone: (925) 973-2500
Facsimile) (925) 866-0547
City Attorney
it of San Ramon
2222 Camino Ramon
San Ramon, California 94583
Telephone: (925) 973-2500
Facsimile: (925) 866-0547
Finance Director
City of San Ramon
2222 Camino Ramon
San Ramon, California 94583
Telephone: (925) 973-2500
Facsimile: (925) 866-0547
If to Shapell, to:
Shapell Industries, Inc.
100 NorthlMilpitas Boulevard
Milpitas, California 95035
Attention: Chris Truebridge
Telephone: (408) 946-1550
Facsimile: (408) 946-2942
15
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CSA M-29 Reimbursement Agreement
With Copies to:
Shapell In Inc.
2678 Bishop Drive, Suite 110
San Ramon, CA 94583
Attention:! Daniel Coleman
Telephone: (925) 327-7181
Facsimile: (925) 327-7193
If to Windemere, to:
Windemere BLC Land Company LLC
3130 Crow Canyon Place, Suite 310
San Ramon, California 94583
Attn: Dr.iPaul Meneker
Telephone: (925) 242-0811
Facsimile; (925) 242-0822
With Copies to:
Morrison& Foerster LLP
101 Ygnacio Valley Road, Suite 450
P.O. Box 8130
Walnut Creek, California 94596-8130
Attn: R. Clark Morrison, Esq.
Telephone: (925)295-3317
Facsimile (925) 946-9912
(1) Binding In Successors. All of the provisions of this Agreement shall be
binding upon and inure to the benefit of the Parties and their respective heirs, successors and
assigns, and lessees, in accordance with and subject to Section 9 of the MOU, which is
incorporated herein by this reference and shall be applicable to any transfer or assignment
hereunder.
9. DISPUTE RESOLUTION. Any and all disputes between or among the Parties
concerning or relating to this Agreement shall be resolved in accordance with the dispute
resolution procedure described in Article V of the Settlement Agreement, which is hereby
incorporated herein by this reference as though expressly set forth herein.
10. AMENDMENT. No amendment, supplement or modification of this Agreement
shall be binding unless executed in writing by the Parties.
16
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CSA M-29 Reimbursement Agreement
v
11. COUNTERPARTS. This Agreement may be executed in counterparts, each of
which shall be an original but alli of which, taken together, shall be one agreement.
IN WITNESS WHEREOF, this Agreement has been entered into by and among
Developers, City and County as of the date first above written.
COUNTY:
CITY:
COUNTY OF CONTRA COSTA,
a political subdivision of the State of California CITY OF SAN RAMON,
a municipal corporation
By. n/1in�/Ai
Chair, oard of Super' ors By: /
�,d•arv7b-c,� " 1 XA46 Name: µ.A 8a4m Om ku✓L
Attest: John Sweeten, Clerk of the Board
of Supervisors and County Administrator Its: �Y►1A11QYt_
Appr ed as to Form:
By: /
Deputy
City TA' rney
Approved as to Form:
Silvano B. Marchesi
County Coun I
By:
unty Counsel
[Signatures continued on next pagel
17
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CSA M-29 Reimbursement Agreement
SHAPELL: WINDEMERE:
SHAPELL INDUSTRIES, INC., WINDEMERE BLC LAND COMPANY LLC,
a Delaware corporation a California limited liability company
By: By: Brookfield Bay Area Holdings LLC,
Name: a Delaware limited liability co y
Its: ' � Membey�� -
By: Name�:((�- David Luebkeman
e.,. Com,
Its:me: , Its: 6bie€Ir;a„ei l^"eF —
By:
Na W/ 9P-1> �
Its:
By:Centex Homes,
a Nevada general partnership
Member
By:Centex Real Estate Corporation,
a Nevada corporation
Maria neral
Part
ame:
Its: 1 I I en
By:
e Dayld Giabatl'ad
s:
By:LEN-OBS Windemere, LLC,
a Delaware limited liability company
Member
By: Lennar Homes of California, Inc.,
a California corporation
Managing Member
By:
Name: rt-c o ci vv—
Its: e.L Y 2
By:
Name: Darn L6#Sck
Its: t%Sf. s?BYC1-4wN
NOTE: Signatures on behalf of corporations must comply with Corporations Code section 313.
Signatures on behalf of limited liability companies must comply with Corporations Code sections
17151, 17154 or 17157, as applicable. Any authorized partner may sign on behalf of a partnership.
18
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CSA M-29 Reimbursement Agreement
TABLE OF EXHIBITS TO CSA REIMBURSEMENT AGREEMENT
Exhibit A-1 Format for Projected Dwelling Units Report to be
ubmitted by Developers
Exhibit A-2 Format for Projected Infrastructure Report to be
ubmitted by Developers
Exhibit B-1 Format for City's Draft Annual Budget
Exhibit B-2 Format for Supporting Work Schedules for City's
raft Annual Budget
Exhibit B-3 Schedule of Sample Calculations
Exhibit C iFormat for City Reimbursement Request to
ICounty
we-94038 v15
CSA M-29 Reimbursement Agreement
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EXHIBIT B-3
Schedule of Sample Calculations Page I of 3
3. BUDGET PROCESS.
(b) Population Assumptions.
(i) "CSA Population"
Example Calculation: FY04-05 Budget = 2,332 actual existing units + (860
projected new units*50%) (to account for mid-year sales) * 2.8 persons/unit =
7,734 C5A population
Example Calculatil n: FY04-05 Reimbursement = 2,334 actual existing units +
(1,215 confirmed) new units*50%) (to account for mid-year sales) * 2.8
persons/unit=8,236 6 population
(ii) "Annexed Population"
Example Calculatl on: FY04-05 Budget = 1,105 actual existing units + (615
projected new units*50%o) *2.8 persons/unit=3,955 Annexed population
Example Calculation: FY04-05 Reimbursement = 1,102 actual existing units +
(1,859 confirmed new units*50%) *2.8 persons/unit=5,688 Annexed population
(iii) "City Population"
Example Calculation: FY04-05 Budget = 48,609 persons (as reported by
California Department of Finance—E-5 Report January 1,2004).
Example Calculation: FY04-05 Reimbursement= 51,027 persons (as reported by
California Department of Finance—E-5 Report January 1,2005).
(c) Consumer Price Index Clarification
Example Calculation: i 04-05 Budget= 198.1 (as reported February 2004)
Example Calculation: FY04-05 Reimbursement= 198.1 (as reported February 2004)
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EXHIBIT B-3
Schedule of Sample Calculations Page 2 of 3
4. REVENUES AND ASSUMPTIONS.
(a) Direct Revenues.
(i) General Ad Valorem Property Tax.
Example Calculation: FY04-05 Budget = $785,445 (Estimated property tax
equals 4% of the legislated 1% of the current year assessed value; current year
assessed value includes the base assessed value and the sales price times the new
units sold in a given year, plus sales price of any properties resold in a given year.
For estimating purposes, resales are assumed to equal 14.29% of all existing
single family units)
Example Calculation: FY04-05 Reimbursement = $790,168 (per actual as
reported by County')
(ii) Real Property Transfer Tax Revenues.
Example Calculation: FY04-05 Budget=$352,629(615 projected new units sold
in annexed territory and 14.29% of 2,682 existing single family units * $642,262
* .110% * 50%.) All units are used for new and only single family is used for
14.29%turnover.
Example Calculation: FY04-05 Reimbursement = $325,228 (per actual as
reported by City and County Recorder's Office)
(b) Indirect Revenues.
(i) Sales Tax Revenues
Example Calculal tion: FY04-05 Budget = $17,377.19/person * 7,734 CSA
projected population* 25% * 0.98%=$329,268
Example Calculation: FY04-05 Reimbursement = $17,377.19/person * 8,236
CSA confirmed population * 25%* 0.98%=$350,640
(ii) Fines and Forfeit S.
Example Calculation: FY04-05 Budget=$396,500 per Citywide Budget/48,609 m
Jan. 1,2004 City Population* 3,955.projected Annexed Population=$32,261
a
Example Calculation: FY04-05 Reimbursement = $373,444 per Citywide m
Actuals / 51,027 Jan 1, 2005 confirmed City population * 5,688 confirmed N
Annexed Population=$41,628 E
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NASProj=ts\San Ramon\CSA\Reimb Agree\2005-NovT,xhrbitB-3(Schcdule of Calcs)12-01-05.doc
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EXHIBIT B-3
Schedule of Sample Calculations Page 3 of 3
(iii) Licenses Permits Franchise Fees.
Example Calculation: FY04-05 Budget = ($749,360 per Citywide Budget /
48,609 projected City population) * 3,955 projected Annexed Population =
$60,971
Example Calculation: FY04-05 Reimbursement = $786,659 per Citywide
Actuals / 51,027 actual City population * 5,688 confirmed Annexed Population=
$87,689
(iv) Motor Vehicle In-Lieu Fees (called Intergovernmental Revenue in MOU)1.
Example Calculation: FY04-05 Budget=$500,000 per Citywide Budget/48,609
City Population *13,955 Budgeted Annexed Population * 75% _$30,511 —plus -
$2,645,000 per Citywide Budget * 8.34% current percentage of assessed
valuation in Cale I * 75%_$165,445.
Total of$30,511 I $165,445 =$195,956
Example Calculation: FY04-05 Reimbursement = $523,853 per Citywide
Actuals/48,609 City Population * 5,688 confirmed Annexed Population * 75% _
$45,974 — plus - $2,706,701 per Citywide Actuals * 8.5% current percentage of
assessed valuation in Gale 1 * 75%=$172,552.
Total of$45,974 i $172,552 =$218,526
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Starting in FY04-05,this calculation will have 2(two)parts. A"smaller portion"based upon Population. A
"larger portion"based upon the increase in property taxes as of FY03-04.
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TO: BOARD OF SUPERVISORS
Costa
FROM: GAYLE B. UILKEMA, CHAIR �` ,'s
DATE: December 20, 2005srA�o;;K County
SUBJECT: Refer to Health Services for report on County Ordinance Code provision requiring septic
systems to be set back 1000 feet from tributary of water supply reservoir
i
SPECIFIC REQUEST(S)OR RECOMMENDATION(S)&BACKGROUND AND JUSTIFICATION
RECOMMENDATION:
Refer to Health Services Department for report, attorney Andrew Shalaby's October 28, 2005
request for the Board to modify the requirement of County Ordinance Code section 420-
6.507(b), requiring septic systems to be set back 1000 feet from water supply reservoirs or
tributary streams thereof.
BACKGROUND:
On October 28, 2005 the Board received a request from attorney Andrew Shalaby on behalf of
his clients Russell and Patricia Cohn, that the Board modify County Ordinance Code section
420-6.507(b), which requiresi septic systems to be set back 1000 feet from water supply
reservoirs or tributary streams thereof. This issue has already been referred to the Health
Department for report in con n action with the Board's action on the appeal of Tamara Attard.
Therefore, Mr. Shalaby's request should likewise be referred to the Health Department for
report back together with its report on said earlier Board referral.
CONTINUED ON ATTACHMENT: YES SIGNATURE:
- — — —---------------------— — — --- --— —— ------- -- -- —------
_RECOMMENDATION OF COUNTY ADMINISTRATOR _RECOMMENDATION OF BOARD COMMITTEE
APPROVE OTHER
SIGNATURE(S):
ACTION OF BOARD ON CD' APPROVE AS RECOMMENDED�7 OTHER
VOTE OF SUPERVISORS I HEREBY CERTIFY THAT THIS IS A TRUE
k�}} AND CORRECT COPY OF AN ACTION TAKEN
UNANIMOUS(ABSENT r�lv ) AND ENTERED ON THE MINUTES OF THE
BOARD OF SUPERVISORS ON THE DATE
AYES: NOES: SHOWN.
ABSENT: ABSTAIN: I
ATTESTED1,2Q
/05
CONTACT: JOIAN SWtETeN,CLERK OF THE BOARD OF
SUPERVISORS AND COUNTY ADMINISTRATOR
CC:
BY DEPU Y
H\En VH1ftConn%Memos�wardwW
1600 Ninth StreetLAW OFFICES 7525 Leviston Ave
Berkeicq .,,9+7H OF El Cerrito,CA 94530
Telephone:510-528-8500, Telephone:510-528-8500,
Fax 510-528-2412 ANDREW W. SRU-ABY Fax 510-528-2412
e-mail:shalabvlawOaol.com SBN 206841 e-mail:shalabvlaw0aol.com
To: Contra Costa County Board of To: City of Orinda and Orinda City
Supervisors- Council, through their attorney, Ms.
Mr. John M. Gioia, fax 510-374-3429; Linda Roodhouse,
Ms. Gayle B. Uilkema, fax 925-335-1076; Lambardi,Loper, et al.
Ms. Mary N.Piepho, 925-820-6627; 1999 Harrison St., Suite 2600
Mr. Mark DeSaulnier, 925-646-5767; Oakland, CA 94612-3541
Mr. Federal D. Glover, 925-427L8142 Tel. 510-433-2600, fax 510-433-2699
To: CONTRA COSTA HEALTH
SERVICES, through its attorneys Mr. cc-Ms. An Nguyen
Timothy Ryan and/or Mr. Bruce PaItenghi cc-Ms.Lillian Fuji
Gordon;Watrous, et al.
611 Las Juntas Re: Cohn v. CCH, et al.
Post Office Box 630 U.S. Dist. Ct., N.D., case#C04-1843 BZ
Martinez, CA 94553
Tel. 925-228-1400, fax 925-228-3644
REQUEST FOR JUST COMPENSATION UNDER
CALIFORNIA CONSTITUTION ARTICLE I
October 28, 2005 W E , (
Dear Board of Supervisors Members, ContraCCT 2 u
Costa Health Services, the City of Orinda, the ! f
City Council of the City of Orinda, and All i—--— --'
Counsels of Record:
Our office representsi Mr. Russell Cohn and Doctor Patricia J. Cohn in the above-
referenced Federal Court action. On October 27,2005 I sent a correspondence to the Contra
Costa County Board of Supervisors on behalf of my clients as well as those communities of
property owners affected by Contra Costa County Ordinance Code section 420-6.507(b),the
City of Orinda's counter-part Ordinance(s), and the moratorium implemented by CONTRA
COSTA HEALTH SERVICES' health officer Glen W. Kent on dated July 31, 1970,
requesting revisions to said Ordinance(s) and Moratorium(s) in light of technological
developments which have taken place since enactment of these regulations over thirty five
years ago. In that correspondence I explained that a procedure is required to ripen a portion
of the Cohn's Federal Court claims and/or to resolve those claims and dismiss that action.
- 1 _ PLEASE REPLY TO
x El Cerrito Office
_Berkeley Office
ti
Request for Just Compensation '
October 28, 2005
p• 2 I
i
The requirement is for compliance with procedures set forth by the U.S. Supreme Court
pursuant to its decision in Williamson County Regional Planning Commission v. Hamilton
Bank, 473 U.S. 172. In short,ibefore a claim of abridgment of constitutional rights under the
Fifth and Fourteenth Amendments to the U.S. Constitution is ripe for review in Federal
Court,the plaintiff must first iobtain a final decision regarding the application of the zoning
ordinance and subdivision regulations to his or her property,and must thereafter utilized the
procedures State law provides for obtaining just compensation. Accordingly,for the reasons
discussed below the Cohns respectfully submit this request for just compensation under
California Constitution Article I section 19.
BACKGROUND
The Cohns purchased a property from one John Barron in the year 2001, a parcel of
vacant land located on Dos Osos Drive, in ORINDA, California, further identified as
Assessor's Parcel Number 265-070-007/009. It was disclosed to them at the time of purchase
that Mr. Barron was approved for installation of a septic tank. (Please see exhibits 1 and 2
attached hereto.) However, upon application to the City of Orinda and CONTRA COSTA
HEALTH SERVICES in relation to installation of a septic system, the Cohns were denied
approval to install a septic system on specified ground that Contra Costa County Ordinance
Code section 420-6.507(b)(hereinafter referenced as the"Setback Ordinance")and the July
31, 1971 moratorium(hereinafter referenced as the"Moratorium") allegedly did not permit
the installation, according to CONTRA COSTA HEALTH SERVICES and based on its
interpretations of same. Ari appeal was taken to the City Council of Orinda followed, but
to no avail. In the course of the City Council's denial,it's counsel,Ms.Roodhouse,pointed
out that a disagreement arose as to the definition of"one thousand feet" under the Setback
Ordinance. Specifically, CONTRA COSTA HEALTH SERVICES, (acting as agent for
Orinda pursuant to Chapter 8.32 of the Orinda Municipal Code) interpreted the Setback
Ordinance to read that no septic installation would be permitted for any property located
within 1,000 feet of a tributary or stream, where the 1,000 feet were to be measured in a
straight line. The Cohns,through their attorney,explained that the legislature's intention was
to meet a water quality standard by application of this 1,000-foot rule, and that the standard
was exceeded when topography measurements were taken into consideration because the
distance of the subjectproperty was about 1,800 feet from the tributary ifthe topography was
taken into consideration.
The Cohns filed an action with the United States District Court in May 2004 alleging takings
- 2 -
Request for Just Compensation
October 28, 2005
p. 3
and Equal Protection claims under the Fifth and Fourteenth Amendments to the United States
Constitution. CONTRA COSTA HEALTH SERVICES filed a motion to dismiss the takings
claim in September 2004,which was denied by the Court,at that time the Court having found
that a"facial takings claim"had been adequately alleged. However,the U.S. Supreme Court
rendered a decision in May of 2005 that effectively altered that decision, and CONTRA
COSTA HEALTH SERVICES and the City of Orinda filed motions for summary judgment
to dismiss the action again in September 2005. The Court ruled in relevant part that the"as-
applied"takings claim was not ripe because the plaintiffs had not sought just compensation
and had not been denied just compensation so as to ripe their claim. However,the Court also
ruled that the plaintiffs pleaded a viable Equal Protection claim upon which relief could be
granted at trial, and a trial date is set for January 9, 2006.
RIPENESS
The Cohn's "as-applied" takings claims cannot"ripen" unless the following events occur:
1. They present a request+to the legislative body(Board of Supervisors)for modification
of the Setback Ordinance and the Moratorium, and their requests are denied or not
responded-to; and
2. They present a request for just compensation to CONTRA COSTA COUNTY and the
CITY OF ORINDA, and their request is denied.
I. REQUEST FOR, MODIFICATION OF SETBACK ORDINANCE
AND MORATORIM WAS SUBMITTED OCTOBER 27, 2005
In compliance with the requirement that the Cohns submit their request for
modifications to the Setback Ordinance and the Moratorium,and in hopes that the B oard will
make the requested modifications and changes, the Cohns submitted their written requests
for same on October 27,2005. Accordingly,this request for just compensation is contingent
upon denial of the Cohn's request for changes to the Ordinance and Moratorium, since of
course ifthe Cohn's proposed modifications are well-takenby andthe changes are legislated,
the Cohns shall be able to construct their home and their need for just compensation shall be
rendered moot.
- 3 -
Request for Just Compensation
October 28,2005
p. 4
11. REQUEST FOR JUST COMPENSATION UNDER CALIFORNIA
CONSTITUTION ARTICLE 1 SECTION 19
California Constitution Article 1 section 19 provides:
Private property may The taken or damaged for public use only when just
compensation, ascertained by a jury unless waived, has first been paid to, or
into court for, the owner. The Legislature may provide for possession by the
condemnor following commencement of eminent domain proceedings upon
deposit in court and prompt release to the owner of money determined by the
court to be the probable amount of just compensation.
In this instance, if the Cohnsare not permitted to install a septic tank on their 2.2 acre parcel
in Orinda, they cannot construct their home, and there is no other economically viable use
for their property. The denial of permission to install the septic system by Contra Costa
Health Services,Contra Costa County,and the City of Orinda,where no sewer system exists
as is the case here, will constitute a taking of the Cohn's property for public use as better
explained through case law your attorneys have at their disposal. For more detail on this
issue please also review the civil complaint and related motions your respective counsels
have from the above-referenced Federal Court matter.
In the event that the Cohn's requests for modifications to the Setback Ordinance, its related
counterpart in the Orinda Municipal Codes (i.e. OMC 8.32.210), and the Moratorium are
denied and they are not permitted to install the septic system pursuant to the technological
advancements identified in the Questa Engineering report submitted as exhibit 4 to their
request for modifications to these regulations, the Cohns respectfully request the payment
of just compensation as follows:
1. Nine Hundred Twenty Five Thousand Dollars ($925,000) if paid within six months
of the date of this request, as consideration for purchase of the above-described
subject properly by the City of Orinda and/or Contra Costa County, as ascertained in
the attached appraisal dated September 1, 2005 (exhibit 1 hereto); or
2. The value of the subject property as determined by an updated appraisal and agreed-
upon by the parties based on market values, assuming the subject property to be a
buildable lot,as of the date of an agreement by the City of Orinda and/or Contra Costa
County to purchase the subject property pursuant to California Constitution Article
-4-
i
Request for Just Compensation
October 28, 2005
p. 5
i
I section 19; or
3. Just Compensation in an amount to be ascertained by a jury as provided-for in Article
I section 19 of the California Constitution, upon an agreement by either the City of
Orinda and/or Contra Costa County to purchase the subject property from the Cohns
in exchange for payment of just compensation.
M. REQUEST FOUR RESPONSE WITHIN 30 DAYS UNLESS A
STIPULATION FOR CONTINUING THE TRIAL DATE CAN BE
REACHED AND APPROVED BY THE FEDERAL COURT
As explained above,the Federal Court matter is set to go to trial on January 9, 2006.
For this reason it is necessary,to either resolve the matters discussed above, or alternatively
stipulate to continuing the trial date so that the Board of Supervisors and other relevant
persons can conduct the necessary administrative hearings and reviews of the requests
presented for changes to the regulations and for alternative just compensation. For this
reason,the Cohns have no alternative but to set a due date for responding to their requests
within 30 days, unless they are informed by yourselves or your counsels that a stipulation
continuing the trial date is necessary and desired. Kindly respond to the Cohn's requests set
forth herein and in their separate request for changes to the regulations by November 28,
2005.
Sincerely,
i
I
Andrew W. Shalaby
- 5 -
APPRAISAL REPORT
OF
Parcel One,Dos Osos
Odnda,Ca 94507
AS OF:
9121/05
PREPARED FOR:
Client:Cohn
1654 Solano Avenue#A
Albany,CA 94706
PREPARED BY:
Denton Valuation
Robert W.Denton,MAI
1401 N.Broadway,Suite 210
Walnut Creek,CA 94596
t
i
LAND APPRAISAL REPORT
Foe No. 2005024
Borrow CLIENT'Russell Cohn Census Tract 3540.01 Map Reference 610 ET
• PropartyAddress Parcel One,DosO
cty Orinda county Contra Costa state Ca zip code 94507
Legal Description 0'nda Park Tract POR Lot I Reference a Preliminary title re for legal desCrition!APN 265. 7D-007-9
Sale Price$ NA Dale of Sale Loan Tenn yrs. Properly Rights Appraised X Fee Leasehold De Minimis PU
Actual Real Estate Lues S 1.673.74 (yr) Loan Charges m be paid by seller S Other Sales Conceuions
• Lendennenf Client"Cohn Address 754 Solano Avenue 94708
o=pant Vacant land Appraiser Robert W Denton MAI Instructions m Appraiser
I
LocationUrban X Suburban Rural Good Avg. Fair Poor
Bunt Up X Over 75% 25%m 75% Under25% Employment Stability X
Growth Rab Fully Dev. Rapid X Steady slow Convedence m Employment X
PropertyValues X Increasing Stable Declining Convenience to shopping X
Dernand'Suppy X Shortage In Balance Oversupply Convenience to schools
tinX
Markeg Time X Under Mos, 4-6 Moa. Over Mos. Adequacy of Public Transportation X
Present Land Use _15%1 Family %24 Family _%Apts _%Condo _%Conmerdal Recreational Facilities X
_%Industrial %Vacant �% Adequacy of Utilities X
Change In Present Land Use 1Not Likely I L._..I fRay(•) X Taking Place(') Property ofCompetrblNy X
• (7 FromVacant/underdeveloped To Custom Protection from DelraroMal Conditions X
Predominate Occupancy LxJ Owner I Li Tenant 0 %Vacant Police and Fire Proletlion X
Single Family Price Range S 8D0.000 IDsJ IDs2.500.000 Predoninant Value S 1.000 General Appearance of Pmpertiea X
• single Family Age New yrsto _50 yn. PredominantAge 15 yn Appeal to Markel X
Comments including those tactors,tawrable a Lints I We,aftec6np marketab@y(e.g public perks,schools,taw,noise} o ons Is hillside residential area
overlookin the to rad villa a of Orinde to ted loathe eek end southeast asthey Parkland are to the west and north.Access Is over EI
toyonal.a windina.narrow treellned and sometime steel)country mad,Due to the elevations many Properties eniov excellent view to the west
and north.composition is fair to -ood quality SFR.Many older ro ernes were ori nal summer homes so appeal/guality is somewhat lower.
Dimensions Irreaular 96.703 sq FL or Acres Li Comer Lot
Zoning Classification I Present Impwarnenn Mole Oda not Conlonfuwnmg regulations
Highest and best use Present use� other(spedfy) To develop site with a large Custom home
Public Other(US", be) OFF SITE IMPROVEMENTS Topo Knoll lot/level to slooina.Ava.utility,
Elec. X PG&E street Aceaa XQ Public ❑pdwb site Good
Gas Butane surface rev I shape Irregular
Water X EBMUD Main nrs X Pudic Private View Good view of Ori da o reservoirs Wt.Diablo
Sana sewer needs septic Smim sewer Curb/Gulter Damage e
Underground Elect.4 Tel Sidewalk Street Liable Is the property located in a HUD ident7bd Special Flood Hnard Area? XFNI Yes
Comments
(favorable or unbwnbleindudrtyal adverse easements,encroachments or otheSavers.conditions): The sub e f is knoll Io located a the
odd country en
� ea doescu a of a woad n
have better views, hou h filtered. f two reservoirs. rinds hills a d Mt Qiablo.
Access to site is avers a due narrow and winding steep
rood,Son Palo Road and shol2pino is within 1.75 miles or+5 minutes,TtIls Is a good though secondary residential location of OrInda.
The undersigned hes rented three recent sales of properties most ioNlar and proximate b subject and has considered these In the market analysis.The description includes
a dollar adjustment reflecting market reaction to those items of s'igngicenl wriallon between the subject and Comparable properties. If a significant item In the Comparable
properly is superior to or more Womble man the sbje
uct Property,.a rrinus I-)eQusbnenl made Illus reducing the Indicatedvalueledvalueg e of subject a significant sem m me
Comparable is Inferior to or less lavorable than the subject property,a phis(+)adjustment is made thus Increasing the indicaled value of the subject.
SUBJECT PROPERTY I COMPARABLE NO.I COMPARABLE NO2 COMPARABLE NO.3
Adenss Parcel One,Dos Osos Lot 10 Lomas Conladas 10 Gardiner Court 881 EI Pintado
Orinda Orind Orinda Orinda
Prodnd m Subject €" :? i 65 J2/one block no h 610 0411.5 miles eas 652 J2/one tock north
Sales Price It N '.3<: - ,Y S 8
Price f It
r
Data Source 75KI/8105-214105COE
M087 3 DD 949 ocA3209
' Date of Sale and DESCRIPTION DESCRIPTION TION e(,µ DESCRIPTION q_g
Time Adjustment Listed 05 OE +38 00 7/1/04-8/ 8/O4 +59 000
Locelfon Good of rior -15000 Su a'or -150 DDSile)kaew 96 703 SF 87 120 SF SF +50 00 11 48 S
View Good Similarior +5000 Inferior +5 00 v I ' Si ila sl a +5 f ri r!U 0 + 0 Ib -50,000 wate u w r ter I e + 0 00 P Ii o oG +30.00
Sales at Financing
concessions
Ne( oto "EMNftm �
Mmus S +5 0 X pWa Mlnua S +18 00 Pms X Minus S -11 000Indicated Value e' u+= s 54 8 �+. ,'iJll n s 0 leu ' 's 974 0 0
Comments an Market Data: SEE COMMENTS FEl
I
I
Comments end Conditions of AppraisaC Theo inion of value assumes no unknown adverse influences, encumbrances or other clouds
of title,It also assumes the site is buildable for one single family residence,Though zoning may allow additional sites n
• determi!3ation can be made at this o6int. Ifsubdivision is allmed an alternate value may apply,
I
Forel Recenciliadon: RECONCILIATION-The best available market inlormation utas utilized to form an opinion of market value for the subject
pmoerty cis of the date of inspection. e e b t 2005 The Ma-aket date considered includes sales and listious of orcoerlies that are
comoetitiv and could acromodate a hi hest and best use similar to Lhat for the sub'ect Property.
a I ESTIMATE HVRKETVrJ�[q�sy.DE�F.I IED,OF SUBJECT PROPERTY AS OF September 21. 2005 to be s 925 000
Appratser(s) ts' ( Review Appraiser Cd applicable)
WWI:W.Denton,MAI
DDid ODid Not Physicaty Inspect Property
CbtWORMS Rnl Erbb Appreisal kolnnre by andford Teumlogles(app)M4727
-IT
EXTRA COMPARABLES 4-5-6 File W. 2005024
so,rower CL)ENT:Russell Cohn
PropertyAddress Parcel One Dos Osos I
city Orinda cuumy Contra Costa State Ca Tip Code 94507
Lend dclia t Client Cohn Address 1654 Solano Avenue#A Albany.CA 94706
The undersigned hes recaed three recent sales of properties most similar and proximate a subject and has considered Nese in the market anatysis.The deswipbon Includes
a dollar adjustment reflecting market reaction to those Rema of signlAunl variation between the subject and comparable properties, If a significant Hem in the comparable
property is superior to or more favorable Nen the subject property,a minus (-)adjustment is made Nus reducing the indicated value of subject;R a significant Rem in Ns
comparable is inferior to or less favorable than the subject pmpsrty,a plus(+)adjusmral is made Nus increasing the indicated value of the subject.
SUBJECT PROPERTY I COMPARABLE NO.4 COMPARABLE MO.5 COMPARABLE NOA
Address Parcel One,Dos Osos 295 Las Quebradas Lane 1 Miner Road
O'nda ( Alamo Orinda
P ro Subject ll 15 it 0 n it e
N.V. 4T
Bales Price s ,.F, s ast
9 s 5 _ s
Price S -f S '�c'`. •, , S
a Data Source IIVILM00173830D*599D3 00
Date of Sale and DESCRIPTION I DESCRIPTION �) - DESCRIPTION HP DESCRIPTION Ad=
Time ustmerd 7/21/04-2123/05 +68-001 Lille -50.00d
Location Good I Superior -150.00 Superior -150.00
Stlemew 96,703 SE I +25.00
V, Cood I Inferior +50.01) 1 + D
Level to slopirin interior/ o + 1 +25.00
ir/ ew 0 Public -50.00
Well/Pub.water u wa r meteL- bli No hookup +30 00 u I' hookup +30.00
Sales or Financing
Concessions
Net AdIffolall I I Plua I X Iminus s -27-000 Plua X Minus f - Plua MMus S
Indicated Value
of Subject $ S S
Comments on Market Data l
I
Com #11.is a moderately sloping hillside parcel that oVeMODks Brio es Reservoir.Overall is(julte similar in size and utility,
It has a slightly more remote location.1' fe ' r to the s b'e 's area.It is adjusted f his factor in addition to lacking public
water us the subii witera 'ng a.water meter,The adiustment is the cost to Installa
system capacity o f a 30 compgrable is also adiusted downward to reflecte i d sal
This comparable d'cates a value of approximately5 or the subject.This is a cioQd Comparison with respect
location n size..howevernot a sold propertirii I' he 's value.
I
92 is smaller illside roe near he Orinda out Clu .This f fa superior area i improved with far superior
fignies thanlocated in the sublect ar da.It Is dust d upward 1/2%/ ont for appreciation,downward for location ward
forsmaller size view and topographis adjusted for b ' gn public sanitation st •adoustment is made based on the
0.000 cost for o also required a water o e e
indicated value of the sub*ect by thisa
1
s a smaller illside proRerty in Dahville.This Js a far suverlar area and is Improved with fir superior h roes than locate
In the subject area,It Is adjusted u ward 112%/month fo gDp[QcIation.downward for location, ar for smaller size view
a and topography.It Is ad us ed for belho on public sanitation s s m:adoustment Is made based o $50,000 cost for the
subject to Install a"state of the art"s6ptic system.This rgimp also re uir d a water hookup fee The Indicated value aft e
sublect by this sale is$974.Q00.
I
s level alongreet frontage(1/ a is otherwise quote steep. h ior Roundhill
Count"area and Is surround by more expensive housing thaiibled I "is adjusted upward 1 leo/ onth for
appreciation, downward for location 'u w rd for smaller size view and topography. It is adjusted for being on public
sanitation se •adjustment ism die based on the$50,Q00 gost for the subject to install a"state of thea "se tics stem.
This romp also required a water hoj�I kup fee.The i dice ed value of thes b'ect by this sale is$951.000.
1
is a smaller level to hit ide lotoca ed near the Or'nda n b This is s far Superior area andv with far
superior homes than located in the s6blect area,it is adiusled downward for to consurriale a sale and location,upwaTd for
smaller size.view ando o r li d' s ed for bin on public sanitationsystem-adjustment is madebased
$50.000 post for the subject to install a"state of theart"sgplic system.This comp also re uir d a wat r hookun fee,The
indicated value of the subiect by this sale is$865.000.
1
CONCLUSION ARK u 'e is valued at$925,0000 this is based correlation of the Orinda
properties with cod o e Alamo/Danville Pre@ comparables.
I
I
I —
- 1
LOCATION MAP ADDENDUM Flle No.2005024
Bonpwer CLIENT:Russell Cohn
Property Address Parcel One,Dos Osos I
city Orinda Courrtv Contra Costa State Ca zip Code94507
LmdedCllent Client Cohn J Address 1654 Solano Avenue#A Albany.CA 94708
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PLAT MAP ADDENDUM FRO No. 2005024
a«rownCLIENT,Russell-Q.
PmpartyAcidress Par=Lg= D S 1
Cm Qrinda Cocmty 45# State Ga Za+CodE9450?
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EXTRA SUBJECT PHOTO ADDENDUM File No. 2005024
Borrower CLIENT*Russell Cohn
Proyeny Address Parcel One Dos OsoS
city Odnda County Contra Costa state Ca ZipCode94507
Lendedcllerd Client Cohn Address 1654 Solano Avenue#A.Albany CA 94706
srKtg?u r ) & r View to north of San Pablo Dam
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M&FORMS Reel EMe+e App bbel Sc me by BreMoN Ted nologws(BOB)633-5727
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DEFINITION OF MARKET VALUE:The most probable price which a property should bring in a competitive and
open market under all conditions requisite to a fair sale, the buyer and seller, each acting prudently, knowledgeably and
assuming the price is not affected by undue stimulus. Implicit in this definition is the consummation of a sale as of a
specified date and the passing of lige from seller to buyer under conditions whereby. (1) buyer and seller are typically
motivated; (2)both parties are well informed or well advised, and each acting in what he considers his own best interest;
(3)a reasonable time is allowed for'exposure in the open market (4)payment is made in terms of cash in U. S. dollars
or in terms of financial arrangements comparable thereto; and (5) the price represents the normal consideration for the
property sold unaffected by special or creative financing or sales concessions'granted by anyone associated with the sale.
'Adjustments to the comparables ist be made for special or creative financing or sales concessions. No adjustments
are necessary for those costs whicli are normally paid by sellers as a result of tradition or law in a market these costs
are readily identifiable since the seller pays these costs in virtually all sales transactions. Special or creative financing
adjustments can be made to the(comparable property by comparisons to financing terms offered by a third party
institutional lender that is not already Involved in the property or transaction. Any adjustment should not be calculated
on a mechanical dollar for dollar mst of the financing or concession but the dollar amount of any adjustment should
approximate the market's reaction to the financing or concessions based on the appraiser's judgment
STATEMENT OF LIMITING CONDITIONS AND APPRAISER'S CERTIFICATION
CONTINGENT AND LIMITING CONDITIONS:The appraiser's certification that appears in the appraisal report is
subject to the following conditions:
1. The appraiser will not be responsible for matters of a legal nature that affect either the property being appraised or
the title to it The appraiser assumes that the title is good and marketable and, therefore, will not render any opinions
about the title.The property is appraised on the basis of it being under responsible ownership.
2. The appraiser has provided a Isketch in the appraisal report to show approximate dimensions of the improvements
and the sketch is included only to assist the reader of the report in visualizing the property and understanding the
appraiser's determination of its size.
3. The appraiser has examined the available flood maps that are provided by the Federal Emergency Management Agency
(or other data sources) and has noted in the appraisal report whether the subject site is located in an identified Special
Flood Hazard Area.Because the appraiser is not a surveyor,he or she makes no guarantees,express or implied,regarding
this determination.
4. The appraiser will not give testimony or appear in court because he or she made an appraisal of the property in question,
unless specific arrangements to do so have been made beforehand.
5. The appraiser has estimated the value of the land in the cost approach at its highest and best use and the improvements
at their contributory value.These separate valuations of the land and improvements must not be used in conjunction with
any other appraisal and are invalid Ifl they are so used.
6. The appraiser has noted in the appraisal report any adverse conditions(such as,needed repairs,depreciation,the presence
of hazardous wastes,toxic substances,etc.)observed during the inspection of the subject property or that he or she became
aware of during the normal research involved in performing the appraisal. Unless otherwise stated in the appraisal report,
the appraiser has no knowledge of any hidden or unapparent conditions of the property or adverse environmental conditions
(including the presence of hazardous wastes,toxic substances,etc.)that would make the property more or less valuable,
and has assumed that there are no such conditions and makes no guarantees or warranties,express or implied, regarding
the condition of the property. The appraiser will not be responsible for any such conditions that do exist or for any
engineering or testing that might be required to discover whether such conditions exist Because the appraiser is not an expert
in the field of environmental hazards, the appraisal report must not be considered as an environmental assessment of
the property.
7. The appraiser obtained the information,estimates,and opinions that were expressed in the appraisal report from sources
that he or she considers to be reliable and believes them to be true and correct The appraiser does not assume responsibility
for the accuracy of such Nems that were furnished by other parties.
B. The appraiser will not disclose the contents of the appraisal report except as provided for in the Uniform Standards of
Professional Appraisal Practice.
9. The appraiser has based his or her appraisal report and valuation conclusion for an appraisal that is subject to satisfactory
completion, repairs, or alterations on the assumption that completion of the improvements will be performed in a
workmanlike manner. l
10. The appraiser must provide his or her prior written consent before the lenderldient specified in the appraisal report
can distribute the appraisal report(including conclusions about the property value,the appraiser's identity and professional
designations,and references to any professional appraisal organizations or the firm with which the appraiser is associated)
to anyone other than the bornower, the mortgagee or Its successors and assigns; the mortgage insurer, consultants;
professional appraisal ppraisal organizations; any state or federally approved financial institution; or any department,.agency,
or instrumentality of the United States or any state or the District of Columbia; except that the lender/client may distribute
the property description section of the report only to data collection or reporting service(s) without having to obtain.the
appraiser's prior written consent The appraiser's written consent and approval must also be obtained before the appraisal
can be conveyed by anyone to the public through advertising,public relations,news,sales,or other media.
I
Freddie Mac Folm 439(693) 01JI ORMS Reel Wet.Appniael SolWen by Bradlord teal naloaks(8001 S22-0727 Fannie Mae Form 10048(693)
f
. i
APPRAISER'S CERTIFICATION: The Appraiser certifies and agrees that
t. I have researched the subject market area and have selected a minimum of three recent sales of properties most similar
and proximate to the subject property for consideration in the sales comparison analysis and have made a dollar adjustment
when appropriate to reflect the market reaction to those items of significant variation. If a significant item in a comparable
property is superior to, or more favorable than, the subject properly. I have made a negative adjustment to reduce the
adjusted sales price of the comparable and,if a significant item in a comparable property is inferior to, or less favorable
than the subject property,I have made Ja positive adjustment to increase the adjusted sales price of the comparable.
2. 1 have taken into consideration the factors that have an impact on value in my development of the estimate of market
value in the appraisal report I have not knowingly withheld any significant information from the appraisal report and I
believe,to the best of my knowledge,that all statements and information in the appraisal report are true and correct. _
3. 1 stated in the appraisal report o IIy my own personal,unbiased,and professional analysis,opinions, and conclusions,
which are subject only to the contingen+II and limiting conditions specified In this form.
4. 1 have no present or prospective interest in the property that is the subject to this report, and I have no present or
prospective personal interest or bias Iwith respect to the participants in the transaction. I cid not base, either parially or
completely, my analysis and/or the estimate of market value in the appraisal report on the race, color, religion, sex,
handicap,familial status, or national origin of either the prospective owners or occupants of the subject property or of the
present owners or occupants of the properties in the vicinity of the subject Property.
S. I have no present or contemplat id future interest in the subject property,and neither my current or future employment
nor my compensation for performing this appraisal is contingent on the appraised value of the property.
+
S. 1 was not required to report a (predetermined value or direction in value that favors the cause of the client or any
related party,the amount of the value estimate,the attainment of a specific result,or the occurrence of a subsequent event
in order to receive my compensation and/or employment for performing the appraisal. 1 did not base the appraisal report
on a requested minimum valuation,a specific valuation,or the need to approve a specific mortgage loan.
T. I performed this appraisal in i nformity with the Uniform Standards of Professional Appraisal Practice that were
adopted and promulgated by the Appraisal Standards Board of The Appraisal Foundation and that were In place as of the
effective date of this appraisal, with the exception of the departure provision of those Standards, which does not appy.
I acknowledge that an estimate of a reasonable time for exposure in the open market is a condition in the definition of
market value and the estimate I developed is consistent with the marketing time noted in the neighborhood section of this
report,unless I have otherwise stated,in the reconciliation section.
8. 1 have personally inspected thel interior and exterior areas of the subject property and the exterior of all properties
listed as comparables in the appraisal report I further certify that I have noted any apparent or known adverse conditions
in the subject improvements, on the subject site, or on any site within the immediate vicinity of the subject property of
which I am aware and have made adjustments for these adverse conditions in my analysis of the property value to the
extent that I had market evidence to support them. I have also commented about the effect of the adverse conditions on
the marketability of the subject property. .
9. 1 personally prepared all concluIsions and opinions about the real estate that were set forth in the appraisal report If I
relied on significant professional as from any individual or individuals in the performance of the appraisal or the
preparation of the appraisal report I have named such individual(s) and disclosed the specific tasks performed by them
in the reconciliation section of this appraisal report. I certify that any individual so named is qualified to perform the tasks.
I have not authorized anyone to make a change to any item In the report therefore,it an unauthorized change is made to the
appraisal report,I will take no resporisibility for it
SUPERVISORY APPRAISER'S CERTIFICATION: If a supervisory appraiser signed the appraisal report,he or she
certifies and agrees that I directly supervise the appraiser who prepared the appraisal report,have reviewed the appraisal
report, agree with the statements and conclusions of the appraiser, agree to be bound bythe appraisers certifications
numbered 4 through 7 above,and am taking full responsibility for the appraisal and the appraisal report
ADDRESS OF PROPERTY APPRAISED: Parcel One,Dos Osos Orinda.Ca 94507
APPRAISE SUPERVISORY APPRAISER (only if required)
Signature: Signature:
Name: b W on MAI Name:
Date Signed: 6/25/05 Date Signed:
State Certification#: AGO06925 State Certification#:
or State License#: ( or State License#
State: CAI State:
Expiration Date of Certification or License: 411/2005 Expiration Date of Certification or License:
Did 0 Did Not Inspect Property
Freddie Mac Form 439 693 CWORMS Real Estate Appraisal SOMme by Breftial Technole0ks(000)622-8737 Fannie Mae Fom I DUR 693
1 -
MULTI-PURPOSE SUPPLEMENTAL ADDENDUM
FOR FEDERALLY RELATED TRANSACTIONS
20050
a
6arrawar Russell Cohn
Pro Add... Parcel One,
city O'n c"6.ty Contra Costa stele Ca Zip code 94 07
Lender Cli :Con I
I
This Muni-Purpose Supplemental Addendum for Federally Related Transactions was designed to provide the appraiser with a con-
venient way to comply wfth the current appraisal standards and requirements of the Federal Deposit Insurance Corporation (FDIC),
the Office of the Controller of Currency (OCC), The Office of Thrift Supervision (OTS), the Resolution Trust Corporation (RTC)
and the Federal Reserve.
This Multi-Purpose Supplement Addendum is for use with any appraisal.Only those
statements which have been checked by the appraiser apply to the property being appraised.
l
X PURPOSE&FUNCTIONor 1
The purpose of the appraisal is to estimate the market value of the subject property as defined herein.The function of the appraisal is to
assist the above-named Lender in evaluating the subject property for lending purposes.This is a Federally related transaction.
XEXTENT OF APP RAISAL PRO CESS
X❑The appraisal is based on the inform)tion gathered by the appraiser from public records,other identified sources,inspection of the
subject property and neighborhood,and selection of comparable sales within the subject market area.The original source of the com-
parables is shown In the Data Sourcelsection of the market grid along with the source of confirmation,if available.The original source
is presented first The sources and data are considered reliable.When conflicting information was provided,the source deemed most
reliable has been used.Data befievei/to be unreliable was not included in the report nor used as a basis for the value conclusion.
❑ The Reproduction Cost is based on
supplemented by the appraiser's knowledge of the local market
❑ Physical depreciation is based on the estimated effective age of the subject property.Functional and/or external depredation,if
present is specifically addressed in the appraisal report or other addenda.In estimating the site value,the appraiser has relied on
personal knowledge of the local market The knowledge is based on prior/or current analysis of site sales and/or abstractions of site
values from sales of Improved properties.
❑X The subject property Is located in an area of primarily owner-occupied single family residences and the Income Approach is not consi-
dered to be meaningful.For this reason,the Income Approach was not used.
❑ The Estimated Market Rent and Gross Rent Multiplier utilized in the Income Approach are based on the appraiser's knowledge of the
subject market area.The rental knowledge is based on prior and/or current rate surveys of residential properties.The Gross Rent
Multiplier is based on prior and/or ctin'ent analysis of prices and market rates for residential properties.
❑ For inwme producing properties,actuat rents,vacancies and expenses have been reported and analyzed.They have been used to pro-
ject future rents,vacancies and expenses.
X
SUBJECT
PROPERTY• INFORMATION
According toMuffiole Listing Service - the subject property:
X has not been offered for sale in the past 30 days.
Is currently offered for sale for$ 1
was offered for sale within the past 30 days for$
Offering information was considered(in the final reconciliation of value.
Offering information was not considered in the final reconciliation of value.
Offering information was not available. The reasons for unavailability and the steps taken by the appraiser are explained later in
this addendum. 1
X SALE HISTORYOF SUBJECTPROPERTY
According to Contra Costa County Recorder the subject property:
has not transferred in the past twelve months. X has not transferred in the past 36 months.
has transferred in the past twelve months. F7 has transferred in the past 36 months.
All prior sales which have occurred in the past months are listed below and reconciled to the appraised value,either in the body
of the report or in the addenda.
Date Sales Price Document# Seller Buyer
I
1
I
X FEMA FLOOD HAZARD DATA
❑X Subject property is not located in a FEMA Special Flood Hazard Area-
Su n:ct property is located in a FEMA Special Flood Hazard Area.
zone FEMA Ma !Panel# Map Date Name of Community
I
The community does not participate in the National Flood Insurance Program.
X The community does participate in the National Flood Insurance Program.
It is covered by a regular program,
It is covered by an emergency roram.
FM70M November 1991 CFekFORMS Re.l Eslale Appraisal Software by aradroN Ternologies(gee)622-8727 Page 1
2005024
8 The subject property is currently not under contract
The contract andfor escrow instructions iwere not available for review. The unavailability of the contract is explained later in the
addenda section.
[]The contract and/or escrow Instructions were reviewed.The following summarizes the contract
Contract Date Amendment Datel Contract Price Seller -
8 The contract indicated that personal property was not Included in the sale.
The contract indicated that personal property was Included. It consisted of
Estimated contributory value is$
Personal property was not included in the final value estimate.
Personal property was included in thle final value estimate.
The contract indicated no►Inancing concessions or other Incentives.
The contract Indicated the following concessionsor incentives:
If concessions or incentives exist the 6omparebles were checked for similar concessions and appropriate adjustments were made,if
applicable,so that the final value conclusion is in compliance with the Market Value defined herein.
XMARKET OVERVIEW Include an explanation of current market conditions
•
Three months is considered a reasonable marketing period for the subject property based on a review of comparable
sales and listings
I
EJ ADDITIONAL
The Appraiser certifies and agrees th it
(1) Their analyses,opinions and conclusions were developed,and this report was prepared,in conformity with the Uniform Standards of
Professional Appraisal Practice('USPAP'j and in accordance with the regulations developed by the Lender's Federal Regulatory
Agency as required by FIRRFA,except that the Departure Provisions of the USPAP do not appy.
(2) Their compensation is not confingentlupon the reporting of predetermined value or direction in value that favors the cause of the
client,the amount of the value estimate,the attainment of a stipulated result,or the occurrence of a subsequent event
(3) This appraisal assignment was not based on a requested minimum valuation,a specific valuation,or the approval of a loan.
••• • (ENVIRONMENTAL)El
The value estimated is based on the assu I pfion that the property is not negatively affected by the existence of hazardous substances or
detrimental environmental conditions unless otherwise stated in this report The appraiser is not an expert in the identification of
hazardous substances or detrimental environmental conditions.The appraiser's routine inspection of and inquires about the subject
property did not develop any information that indicated any apparent significant hazardous substances or detrimental environmental
conditions which would affect the property negatively unless otherwise stated in this report.It is possible that tests and Inspections made
by a qualified hazardous substance and(environmental expert would reveal the existence of hazardous substances or detrimental
environmental conditions on or around the property that would negatively affect its value.
E] ADDITIONAL
The undersigned is competent to appraise the subject as he possesses the resources and has both the knowledge
and experience to appraise agricultural grooerty Orinda as well as entire Contra Costa County area Is within
Denton Valuation's regular servicelarea
I
x APPRAISER'S SIGNATURE&LICENSEICERTIFICATION
I
Appraiser's Signature } Effective Date 9/21/05 Date Prepared 9113/05
Appraiser's Name(print) B6bert W Denton, Phone#( 925 ) 746-1420
State CA ❑License tYJCerflficatkm4 AGO06925 Tax ID#
CO-SIGNING APPRAISER'S CERTIFICATIONI
The co-signing appraiser has personally Inspected the subject property,both Inside and out,and has made an exterior Inspection of all
comparable sales listed in the report(The report was prepared by the appraiser under direct supervision of the co-signing appraiser.
The cosigning appraiser accepts responsibility for the contents of the report including the value conclusion and the limiting condt-
ttons,and confirms that the certificationsapply fully to the co-signing appraiser.
the co-signing appraiser has not personally Inspected the interior of the subject property and:
has not inspected the exterior of the subject property and all comparable sales listed in the report
has Inspected the exterior of the subject property and all comparable sales tilted in the report
The report was prepared by the appraiser under direct supervision of the co-signing appraiser.The co-signing appraiser accepts
responsibility for the contents of the report, including the value conclusions and the limiting conditions, and confirms that the
certifications apply fully to the co-signing appraiser with the exception of the certification regarding physical inspections.The above
describes the level of inspection performed by the co-signing appraiser.
The co-signing appraiser's level of in, involvement in the appraisal process and certification are covered elsewhere in the
addenda section of this appraisal.
J
CD-SIGNING
Co-Signing
Appraisers Signature ( Effective Date 9/21105 Date Prepared
Co-Signing Appraisers Name (print) ( Phone#( _ )
State License Certification# Trainee Tax ID#
17W-70M November 1991 CGckFORMS Appraisal Sofhwim by Bratlrord T•cnologip(Boo)8324727 Page 2
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