Last month, the city sent a notice of default to Discovery Builders, Albert Seeno III’s company, regarding construction of a Markley Creek culvert crossing near Black Diamond Estates on Somersville Road. Begun by Discovery Builders in 2004 as part of the Black Diamond Ranch project (which necessitated expanding Somersville Road to four lanes), construction of the $821,000 bridge has been delayed multiple times during the environmental permit process.
On Feb. 24, City Attorney Lynn Nerland sent a letter to Jim Colopy, Discovery Builders’ attorney, saying the company had completely defaulted. Nerland claimed that Discovery no longer desired to build the culvert, and wanted the city to construct it.
“The City is simply trying to get a road widened to accommodate the increased traffic due in large part to your client’s residential development at Black Diamond Ranch and which your client agreed to construct,” Nerland wrote in a March 17 letter to Colopy. “Such contention also ignores the repeated attempts of the City over the past two years to resolve this matter with your client and, at this point, would seem merely to be a delay tactic to avoid triggering the cure period in order to avoid the dry-season construction window this year.”
Colopy feels that Discovery has not breached its contract and that there should have been a 60-day negotiation period after the notice of default, as a 2003 development agreement states. According to Colopy, Discovery has been open and willing to negotiate with the city.
On Monday, both sides met in closed session and agreed that things were moving toward a more amicable resolution. However, Colopy maintains that City Council has been negotiating in secret regarding this project, changing the terms of a tentative resolution without notice, a violation of the state’s Brown Act.
“Discovery Builders, as I’ve said before, and I’ll say it again, is very upset and concerned with the way the City of Antioch has been handling this issue,” Colopy said. “We’ve been attacked and our business reputation has been injured, because of the various statements that are being made by City Council.”
Colopy brought with him the tentative resolution from Monday’s closed session meeting, annotated with what he felt were several changes Antioch made behind the developer’s back. Colopy said that if Antioch moves ahead without Discovery, the company would take legal action.
Despite Colopy’s protestations, City Council voted 4-0 to put the project back out to bid, moving forward without Discovery. Councilman Wade Harper excused himself from the vote, noting that Discovery might have contributed money to his campaign.
“We seem to be arguing over timing, and pointing fingers,” Councilman Gary Agopian said. “I think it’s repugnant to accuse this council of acting in secret, and if there’s concerns about someone’s reputation being damaged, I’m concerned about the reputation of the city and its citizens, who by inference are entering into this contract. … We’re being very prudent in asking for the contract to be adhered to.”
Nerland rebutted Colopy’s claim that the changes are the result of clandestine discussions. “Mr. Colopy’s letter today, alleging that the city is meeting in secret and violating the Brown Act, is so absurd that one must question his motives,” Nerland said at Tuesday’s meeting.
The council also voted to transfer $1 million from the city’s Redevelopment Agency to the Capital Improvements Fund to cover construction costs. If Gov. Brown’s proposal for the state to take away cities’ redevelopment funds succeeds, Antioch would use money from the gas tax fund to build the bridge. Tuesday’s Council vote also meant Antioch would pay the California Department of Fish and Game the $92,800 mitigation fee that Discovery refuses to pay.
Colopy feels that the notice of default was unwarranted and that Discovery has been unfairly treated by Antioch.
“Our clients were surprised to receive this Notice without prior warning or any City of Antioch effort at informal communication,” he wrote in a March 8 letter to Nerland, “and they do not believe it is appropriate for the City Council to enter these findings of default and breach less than two weeks after sending the Notice.”