ANNOTATED AGENDA
Antioch City Council
REGULAR MEETING
Including the Antioch City Council acting as Successor Agency/ Housing Successor to the Antioch Development Agency
Date: Tuesday, August 13, 2024
Time: 5:15 P.M. – Closed Session
7:00 P.M. – Regular Meeting
Place: Council Chambers
200 ‘H’ Street
Antioch, CA 94509
City Council meetings are televised live on Comcast channel 24, AT&T U-verse channel 99, or live stream (at www.antiochca.gov). Please see the inside cover for detailed Speaker Rules.
PLEASE TURN OFF CELL PHONES BEFORE ENTERING COUNCIL CHAMBERS.
Lamar A. Hernandez-Thorpe, Mayor Ellie Householder, City Clerk Monica E. Wilson, Mayor Pro Tem (District 4) Lauren Posada, City Treasurer Tamisha Torres-Walker, Council Member District 1
Michael Barbanica, Council Member District 2 Kwame P. Reed, Acting City Manager Lori Ogorchock, Council Member District 3 Thomas Lloyd Smith, City Attorney
ACCESSIBILITY: In accordance with the Americans with Disabilities Act and California law, it is the policy of the City of Antioch to offer its public programs, services and meetings in a manner that is readily accessible to everyone, including individuals with disabiliti es. If you are a person with a disability and require information or materials in an appropriate alternative format; or if you require any other accommodation, please contact the ADA Coordinator at the number or address below at least 72 hours prior to the meeting or when you desire to receive services. Advance notification within this guideline will enable the City to make reasonable arrangements to ensure accessibility. The City’s ADA Coordinator can be reached @ Phone: (925) 779-6950, and e-mail: [email protected].
ANTIOCH CITY COUNCIL -1- AUGUST 13, 2024
Notice of Availability of Reports
This agenda is a summary of the actions proposed to be taken by the City Council. For almost every agenda item, materials have been prepared by the City staff for the Council's consideration. These materials include staff reports which explain in detail the item before the Council and the reason for the recommendation. The materials may a lso include resolutions or ordinances which are proposed to be adopted. Unless otherwise noted, City Council actions include a determination that the California Environmental Quality Act (CEQA) does not apply. The Council meets regularly on the second and fourth Tuesdays of the month at 7:00 p.m., with Closed Sessions often occurring before or after the regular meeting. City Council Agendas, including Staff Reports are posted onto our City’s Website 72 hours before each Council Meeting. To be notified when the agenda packets are posted onto our City’s Website, simply click on this link: Notifications – City of Antioch, California (antiochca.gov) and enter your e-mail address to subscribe. To view the agenda information, click on the following link: City Council – City of Antioch, California (antiochca.gov) . Questions may be directed to the staff member who prepared the staff report, or to the City Clerk's Office, who will refer you to the appropriate person.
Notice of Opportunity to Address Council
The public has the opportunity to address the City Council on each agenda item. To address the Council, fill out a Speaker Request form and place in the Speaker Card Tray near the City Clerk before the meeting begins. This will enable us to call upon you to speak. Comments regarding matters not on this Agenda may be addressed during the "Public Comments" section. No one may speak more than once on an agenda item or during “Public Comments”. The Speaker Request forms are located at the entrance of the Council Chambers. Please see the Speaker Rules on the inside cover of this Agenda.
5:15 P.M. ROLL CALL – CLOSED SESSION – for Council Members – All Present
PLEDGE OF ALLEGIANCE
PUBLIC COMMENTS for Closed Session – None
CLOSED SESSION:
1) CONFERENCE WITH LEGAL COUNSEL – EXISTING LITIGATION – pursuant to California Government Code section 54956.9: National Prescription Opiate Litigation, United States District Court Northern District of Ohio Eastern Division, Case No. 1:17-md-2804.
Council unanimously approved settlement, 5/0
2) CONFERENCE WITH LEGAL COUNSEL – ANTICIPATED LITIGATION, Initiation of litigation pursuant to California Government Code section 54956.9(c): Two Cases.
Direction provided to City Attorney
3) CONFERENCE WITH LEGAL COUNSEL – EXISTING LITIGATION – pursuant to California Government Code section 54956.9: California Resources Production v. City of Antioch et al. Contra Costa County Superior Court Case No. N21-2354; Delta Gas Gathering, Inc. and California Energy Exchange Corporation v. City of Antioch et al. Contra Costa County Superior Court Case No. N21 -2355; and Enerfin Resources Northwest Limited Partnership v. City of Antioch et al. Contra Costa County Superior Court Case No. N21-2356.
Direction provided to City Attorney
ANTIOCH CITY COUNCIL -2- AUGUST 13, 2024
CLOSED SESSION – Continued
4) PUBLIC EMPLOYMENT – Recruitment of City Manager. This closed session is authorized pursuant to California Government Code Section 54957(b).
Direction provided to Human Resources Director and City Attorney
5:17 P.M. MOTIONED TO ADJOURN TO CLOSED SESSION
7:02 P.M. ROLL CALL – REGULAR MEETING – for City /City Council Members acting as Housing Successor to the Antioch Development Agency – Council Members District 3 Ogorchock, Mayor Pro Tem (District 4) Wilson and Mayor Hernandez-Thorpe (Council Member District 1 Torres-Walker arrived at 7:04 p.m.) [Council Member District 2 Barbanica – Absent]
PLEDGE OF ALLEGIANCE
CITY ATTORNEY TO REPORT OUT ON CLOSED SESSION
ANNOUNCEMENTS OF CIVIC AND COMMUNITY EVENTS
1. ANNOUNCEMENTS OF BOARD AND COMMISSION OPENINGS
➢ CONTRA COSTA COUNTY MOSQUITO & VECTOR CONTROL BOARD
➢ ECONOMIC DEVELOPMENT COMMISSION
➢ PARKS AND RECREATION COMMISSION
PUBLIC COMMENTS – Members of the public may comment only on unagendized items.
The public may comment on agendized items when they come up on this Agenda.
CITY COUNCIL COMMITTEE REPORTS/COMMUNICATIONS
MAYOR’S COMMENTS
2. PRESENTATIONS
2.01. PFM ASSET MANAGEMENT LLC
Presented by Justin Resuello, Client Relations Manager
2.02. PROJECT UPDATE FOR THE BRACKISH WATER DESALINATION PROJECT (P.W. 694)
Received
Recommended Action: It is recommended that the City Council receive and file the Brackish Water Desalination Project update.
ANTIOCH CITY COUNCIL -3- AUGUST 13, 2024
3. CONSENT CALENDAR for City /City Council Members acting as Housing Successor to the Antioch Development Agency
A. APPROVAL OF COUNCIL MEETING MINUTES FOR JULY 23, 2024 Continued, 4/0
Recommended Action: It is recommended that the City Council continue the Meeting Minutes.
B. APPROVAL OF COUNCIL WARRANTS
Approved, 4/0
Recommended Action: It is recommended that the City Council approve the warrants.
C. APPROVAL OF HOUSING SUCCESSOR WARRANTS
Approved, 4/0
Recommended Action: It is recommended that the City Council approve the warrants.
D. AWARD OF AGREEMENT TO ADVANCED TRENCHLESS INC. FOR EMERGENCY
UNDERGROUND WATER AND SEWER/STORM UTILITY INFRASTRUCTURE REPAIRS Reso No. 2024/108 adopted, 4/0
Recommended Action: It is recommended that the City Council adopt a resolution:
1) Awarding the agreement to Advanced Trenchless Inc. for underground water and sewer/storm infrastructure repair services on an as -needed basis for a three (3) year term beginning August 13, 2024, through June 30, 2027, in the amount of $2,250,000 with an option to extend two (2)
additional years in the amount of $1,500,000 for a five (5) year amount not to exceed $3,750,000; and
2) Authorizing the Acting City Manager to execute the agreement in a form approved by the City Attorney.
E. FIRST AMENDMENT TO THE CONSULTING SERVICES AGREEMENT WITH
COASTLAND FOR ON-CALL CONSULTANT INSPECTION SERVICES
Reso No. 2024/109 adopted, 4/0
Recommended Action: It is recommended that the City Council adopt a resolution:
1) Approving the first amendment to the Consulting Services Agreement with Coastland for on -call consultant inspection services, increasing the contract by $100,000, for a total contract amount not to exceed $400,000; and
2) Authorizing the Acting City Manager to execute the first amendment to the Agreement in a form approved by the City Attorney.
ANTIOCH CITY COUNCIL -4- AUGUST 13, 2024
CONSENT CALENDAR for City /City Council Members acting as Housing Successor to the Antioch Development Agency – Continued
F. AWARD OF AGREEMENT TO BARTLEY PUMP, PM LLC, DBA PUMPMAN CO. FOR ON-
CALL PUMP REPAIRS AND REBUILDS
Reso No. 2024/110 adopted, 4/0
Recommended Action: It is recommended that the City Council adopt a resolution:
1) Awarding the agreement to Bartley Pump, PM LLC. DBA
Pumpman Co. for a three (3) year term beginning July 1, 2024, through June 30, 2027, in the amount of $300,000 with an option to extend the agreement two (2) additional years in the amount of $200,000 for a five (5) year amount not to exceed $500,000; and
2) Authorizing the Acting City Manager to execute the
agreement in a form approved by the City Attorney.
PUBLIC HEARING
4. EAST LONE TREE SPECIFIC PLAN PROJECT
Recommended Action: The Planning Commission recommends that the City Council take the following actions:
Reso No. 2024/111 adopted, 4/0
1) Adopt the resolution certifying the East Lone Tree Specific Plan Supplemental Environmental Impact Report (SEIR).
Reso No. 2024/112 adopted, 4/0
2) Adopt the resolution approving the East Lone Tree Specific Plan amendment.
CEQA: In accordance with CEQA, the City has prepared a Supplemental Environmental Impact Report (SEIR), which
determined all potentially significant environmental impacts for the potential ultimate buildout of the project would be mitigated to a less-than-significant level with incorporation of mitigation . The SEIR for the East Lone Tree Specific Plan Project was circulated for public review from January 11, 2024, to February 26, 2024, to solicit comments and input from the public. The City received four comment letters during the public review period. Minor revisions to the SEIR were required as a result of the comment letters, and no new significant information was identified during the comment period. Therefore, recirculation of the SEIR is not required.
ANTIOCH CITY COUNCIL -5- AUGUST 13, 2024
COUNCIL REGULAR AGENDA
5. REQUEST TO OVERHIRE ONE POLICE CAPTAIN FOR THE REMAINDER OF FISCAL YEAR 2024/25
Reso No. 2024/113 adopted, 4/0
Recommended Action: It is recommended that the City Council adopt a resolution to authorize the overhire of one Police Captain position for the remainder of Fiscal Year 2024/25.
6. REQUEST TO ADD ONE ADMINISTRATIVE ANALYST I POSITION FOR THE POLICE
DEPARTMENT
Reso No. 2024/114 adopted, 4/0
Recommended Action: It is recommended that the City Council adopt a resolution to approve the addition of one Administrative Analyst I position to the Police Department and the necessary Fiscal Year 2024/25 General Fund budget adjustment.
7. DISPOSITION OF REAL PROPERTY LOCATED AT 275 W EST TREGALLAS R OAD, ANTIOCH, CA (APN 071-050-047); AUTHORIZATION OF THE ACTING CITY MANAGER
TO EXECUTE THE PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS WITH DELTA LEARNING CENTER; APPROVAL OF CERTAIN RELATED ACTIONS; AND CEQA EXEMPTION FINDINGS
Reso No. 2024/115 adopted, 4/0
Recommended Action: It is recommended that the City Council adopt a resolution:
1) Approving the disposition of the real property located at 275 West Tregallas Road, Antioch, California (APN 071 -050-047) (“Property”);
2) Authorizing the Acting City Manager to execute the Purchase and Sale Agreement and Joint Escrow Instructions with Delta Learning Center for disposition of the Property with a purchase price in the amount of One Dollar ($1.00) with certain
reservations of rights and deed use restrictions; and
3) Making a finding that the disposition of the Property is found to be categorically exempt from environmental review under the California Environmental Quality Act (CEQA).
ANTIOCH CITY COUNCIL -6- AUGUST 13, 2024
COUNCIL REGULAR AGENDA – Continued
8. CONSIDERATION OF A CANNABIS OPERATING AGREEMENT FOR ANT GREEN LLC Reso No. 2024/116 adopted, 3/1 (Ogorchock-No)
Recommended Action: It is recommended that the City Council:
1) Adopt a resolution approving a cannabis operating agreement between the City and ANT Green LLC and
2) Authorize the Acting City Manager to execute the agreement in a form approved by the City Attorney.
9. CONSIDERATION OF A CANNABIS OPERATING AGREEMENT FOR OTC ANTIOCH, LLC
Reso No. 2024/117 adopted, 3/1 (Ogorchock-No)
Recommended Action: It is recommended that the City Council:
1) Adopt a resolution approving a cannabis operating agreement between the City and OTC Antioch, LLC and
2) Authorize the Acting City Manager to execute the agreement in a form approved by the City Attorney.
10. CITY COUNCIL REQUESTED DISCUSSION ITEM – DISCUSSION ON WORKING WITH
CONTRA COSTA COUNTY TO CREATE A COORDINATED OUTREACH REFERRAL, ENGAGEMENT (C.O.R.E.) TEAM FOR ANTIOCH
Direction provided to staff to agendize workshop on homelessness Recommended Action: It is recommended that the City Council discuss and provide direction to City staff.
PUBLIC COMMENTS
STAFF COMMUNICATIONS
COUNCIL COMMUNICATIONS AND FUTURE AGENDA ITEMS – Council Members report out various activities and any Council Member may place an item for discussion and direction on a future agenda. Timing determined by Mayor and Acting City Manager – no longer than 90 days.
MOTION TO ADJOURN – After Council Communications and Future Agenda Items, the Mayor will make a motion to adjourn the meeting. A second motion is required, and then a majority vote is required to adjourn the meeting.
Motioned to adjourn meeting at 9:46 p.m., 4/0
BOARD / COMMISSION / COMMITTEE
VACANCY ANNOUNCEMENTS
Phone: (925) 779-7009 OFFICE OF THE CITY CLERK200 H Street/P.O. Box 5007 [email protected] Antioch, CA. 94531-5007
https://bit.ly/COA-BC23 AntiochIsOpportunity.com
The City of Antioch urges residents to become involved in their local community! One way to do so is to serve on the various Boards, Commissions, and Committees. Any interested resident is encouraged to apply for the vacancies by 5:00 p.m. on the deadline below.
DEADLINE DATE: FRIDAY, AUGUST 16, 2024:
PARKS AND RECREATION COMMISSION
o One (1) vacancy, expiring March 2028
EXTENDED DEADLINE DATE: FRIDAY, AUGUST 30, 2024:
CONTRA COSTA MOSQUITO & VECTOR CONTROL BOARD
o One (1) vacancy, expiring April 2026
EXTENDED DEADLINE DATE: FRIDAY, AUGUST 30, 2024:
ECONOMIC DEVELOPMENT COMMISSION
o Two (2) vacancies, expiring June 2025
o Three (3) vacancies, expiring June 2027
o One (1) Chamber of Commerce vacancy, expiring June 2027 To be considered for the vacancy position(s) listed above, please fill out an application available on the City’s
website at https://bit.ly/COA-BC23. Printed applications are also available at Antioch City Hall, 200 H Street,
Antioch, CA.
Please return the completed application by the deadline date listed above, by email to: [email protected].
You can also drop off the application (Attn: City Clerk), in the water billing drop-off box outside Antioch City Hall.
Your interest and desire to serve our community can make a difference.
Parks and Recreation Commission
One (1) Vacancy, expiring
Deadline Date: By 5:00 p.m., August 16, 2024
The City of Antioch encourages residents to become involved in their local community. One way to do so is to serve on various commissions, boards, and committees. Any interested resident is encouraged to apply.
Purpose:
The Parks and Recreation Commission shall have the following duties:
(A) To serve in an advisory capacity to the Council in matters pertaining to park and recreation policy and to the City Manager, the Parks and Recreation Director, and the Public Works Superintendent in matters pertaining to the administration of park and recreation functions; (B) To survey all public and private recreation facilities and recommend a coordinated recreation program for the city;
(C) To survey the current and future recreation needs of the community and recommend such acquisitions, improvements, joint uses, programming, and financing as will provide a sound, year- round recreational program for all ages;
(D) To foster close cooperation between the city and the school district and with other agencies performing recreational activities or hiring recreational facilities to the end that duplications may be eliminated, costs may be reduced to a minimum, and the most efficient use may be made of all available facilities;
(E) To advise the Parks and Recreation Director in the preparation and submission of annual budgets and current and long-range recreational programs and capital improvements; (F) To render an annual report to the Council as soon as practicable after June 30 of each year covering the activities of the Parks and Recreation Commission for the preceding fiscal year and its recommendations for the future; and
(G) To render such interim reports as, in the judgment of the Parks and Recreation Commission, will be useful to the Council in formulating or carrying out recreational policies or activities, or as requested by the Council. (Ord. No. 104-C-S)
Meetings:
Meetings are held on the third Thursday of every other month at 7:00 p.m., held at City Hall Council Chambers at 200 H Street.
If you are interested in pursuing volunteer positions with the City of Antioch, please complete an application and submit it via email to [email protected], or mail/deliver it to the Office of the City Clerk, by the deadline date mentioned above. Applications must include your responses to the Questionnaire to be considered.
Applications are available on the City’s website at: https://bit.ly/COA- BC23, and at the City Clerk’s Office.
CONTRA COSTA COUNTY MOSQUITO &
VECTOR CONTROL BOARD OF TRUSTEES
One (1) Vacancy, expiring April 2026
Extended Deadline Date: By 5:00 p.m.,, 2024
The City of Antioch encourages residents to become involved in their local community.
One way to do so is to serve on various commissions, boards, and committees. Any interested resident is encouraged to apply.
Purpose:
The Board of Trustees are officials appointed by their respective city councils to govern the Mosquito and Vector Control District knowledgeably and effectively. They serve without compensation for a term of two to four years and are highly dedicated to this community service.
Additional information regarding the responsibilities and duties are available online at www.contracostamosquito.com.
Qualifications:
To be eligible, you must be an Antioch resident and a Contra Costa County taxpayer who is at least 18 years old and interested in any of the following areas: public health, public policy, wetlands, farming, community education, finance, personnel, or land development.
Meetings:
Board meets on the second Monday of every other the month starting January at 7:00 p.m., and occasionally, it may be necessary to hold a special Board meeting.
Location:
Meetings are to be held at the District Office address, located at 155 Mason Circle, Concord If you are interested in pursuing volunteer positions with the City of Antioch, please complete an application and submit it via email to [email protected], or mail/deliver it to the Office of the City Clerk, by the deadline date mentioned above.
Applications must include your responses to the Questionnaire to be considered.
Applications are available on the City’s website at:
https://bit.ly/COA-BC23, and at the City Clerk’s Office.
ECONOMIC DEVELOPMENT COMMISSION
Two (2) Vacancies, expiring June 2025
Three (3) Vacancies, expiring June 2027
One (1) Chamber of Commerce Vacancy, expiring June 2027 Deadline Date: By 5:00 p.m., , 2024
The City of Antioch encourages residents to become involved in their local community. One way to do so is to serve on various commissions, boards, and committees. Any interested resident is encouraged to apply.
Purpose:
Economic Development Commission serves in an advisory capacity to the City Council in matters pertaining to economic development issues within the City and makes recommendations to the City Council and staff regarding policies, regulations, marketing, development strategies and planning activities designed to enhance the City’s economic base and create quality jobs.
Committee Seats:
Seven (7) Members, 4-year terms.
o At least five (5) members shall be Antioch residents/electors. Non-resident members shall own or operate a business in the City of Antioch.
o Members with backgrounds in commercial real estate, marketing or investment banking are strongly preferred.
o Antioch Chamber of Commerce shall recommend one member.
Meetings:
Regular meetings are held at 6:00 p.m. in the Council Chambers, 200 H Street, Antioch CA.
First Tuesday in February, April, June, October, and December.
Third Tuesday in July.
First Tuesday on an as-needed basis only, in March, May, and November.
No Meetings are held during January or August
Additional Requirements:
Commissioners are required to submit the Fair Political Practices Commission (FPPC) Form 700 (Statement of Economic Interests) upon assuming office, and every year thereafter.
Commissioners are required to complete a 2-hour online AB1234 Ethics training course within one year of their appointment.
Newly appointed and reappointed members are required to take an Oath of Office administered by the City Clerk.
To be considered for these volunteer position(s), a completed application must be emailed to:
[email protected], or mailed/delivered to the Office of the City Clerk, by the deadline date listed above. Applications are available on the City’s website at: https://bit.ly/COA-BC23, and at the City Clerk’s Office.
A Agenda Item #
STAFF REPORT TO THE CITY COUNCIL
DATE: Regular Meeting of August 13, 2024
TO: Honorable Mayor and Members of the City Council
SUBMITTED BY: Ellie Householder, MPP, City Clerk
Vanessa Rosales, CMC, Administrative Analyst I VR
SUBJECT: City Council Meeting Minutes of July 23, 2024
RECOMMENDED ACTION
It is recommended that the City Council continue the Meeting Minutes of July 23, 2024.
FISCAL IMPACT
None
DISCUSSION
N/A
ATTACHMENTS
None
3C__________
4 Agenda Item #
STAFF REPORT TO THE CITY COUNCIL
DATE: Regular Meeting of August 13, 2024
TO: Honorable Mayor and Members of the City Council
SUBMITTED BY:Cindy Gnos, Contract Planner
Raney Planning & Management, Inc.
APPROVED BY:Kevin Scudero, Acting Community Development Director SUBJECT: East Lone Tree Specific Plan Project
RECOMMENDED ACTION
The Planning Commission recommends that the City Council take the following actions:
1. Adopt the resolution certifying the East Lone Tree Specific Plan Supplemental Environmental Impact Report (SEIR).
2. Adopt the resolution approving the East Lone Tree Specific Plan amendment.
FISCAL IMPACT
The East Lone Tree Specific Plan Amendment Project is fully funded by the City of
DISCUSSION
Project Overview/Requested Approvals
The City is proposing to modify the approval process for commercial development within the Regional Retail/Employment (CR/E) and Employment Retail (CE) designated parcels of the East Lone Tree Specific Plan (ELTSP). Specifically, to remove the required approval of a Planned Development (PD) rezone for future development projects within the CR/E and CE designated parcels of the ELTSP. If approved, future proposed plans within the CR/E and CE designated parcels would only require a Use Permit and Design Necessary entitlements from the
City of Antioch include the following:
1. Environmental Review. The proposed project would require the certification of the ELTSP Supplemental Environmental Impact Report (SEIR).
2. Specific Plan Amendment.The proposed project would require approval of an amendment to the ELTSP to remove the required approval of a PD rezone for future development projects within the CR/E and CE designated Antioch City Council Report
August 13, 2024 Agenda Item #4 2
2 parcels of the ELTSP. If approved, future proposed plans within the CR/E and CE designated parcels would only require a Use Permit and Design Design Review process shall be as outlined in Articles 26 and 27 of the Antioch Municipal Code.
The ELTSP Area is comprised of 785-acres on the eastern edge of Antioch, and is bounded by Lone Tree Way to the south, Empire Avenue and Neroly Road to the east, and the Contra Costa Canal to the north. The ELTSP allows for a mix of employment, commercial, residential uses, and public uses, as well as parks and open space, to be developed within the Specific Plan Area. The area that would be affected by the proposed project consists of four parcels totaling 87.82-
Numbers (APNs) 053-072-003, 053-072-025, 053-072-026, and 056-120-095, which are located in the eastern portion of the ELTSP Area.
The parcels that comprise the project site are zoned Specific Plan (S-P) and designated the project site is designated as a CR/E and a small portion of the site is designated CE.
Location Map
Project Location
Antioch City Council Report
August 13, 2024 Agenda Item #4 3
3 Project Site Map
Background
The ELTSP Environmental Impact Report (EIR), also known as the Future Urbanization Area #2 (FUA #2) Specific Plan EIR, was certified by the City of Antioch City Council in August 1995. The ELTSP designates the eastern portion of the site as primarily CR/E and a small portion of the site as CE. The General Plan anticipates this Focus Area to develop employment-generating uses, with the majority of the focus area developed with suburban-type business parks, incorporating major office complexes and light industrial uses, all developed in accordance with high development standards.
The ELTSP is available in its entirety here: https://www.antiochca.gov/fc/community- development/planning/East-Lone-Tree-Specific-Plan.pdf
The purpose of the ELTSP is to be developed for employment generating uses, with the majority of the area developed with suburban-type business parks, incorporating major office complexes and light industrial uses. The proposed project consists of four parcels located within the eastern portion of the ELTSP Area. The CE retail district is intended for restaurants and service providers that the employment center would require to function.
It also is intended to provide a sense of identity, vitality, and urbanity to what is otherwise a low, spread-out campus of largely internalized workplaces.
Antioch City Council Report
August 13, 2024 Agenda Item #4 4
4 The CR site is reserved for regional retail use only, the CR/E sites may be developed for regional retail or employment. The design of this retail place is intended to create a human-scaled cluster of activity at the heart of the campus.
Project Parcels within the ELTSP
Antioch City Council Report
August 13, 2024 Agenda Item #4 5
5 Environmental
As previously discussed, the ELTSP EIR, also known as the FUA #2 Specific Plan EIR, was previously certified by the City of Antioch City Council in August 1995. Given that the proposed project would likely necessitate minor changes to the overall analysis, a SEIR was prepared. A SEIR is required to evaluate only the changes in the project, changes in circumstances, or new information that led to the preparation of the further EIR.
Although the proposed project does not include any specific development proposals or new uses, approval of the proposed Specific Plan Amendment would allow future development of the project site with regional retail/employment uses. The completed SEIR analysis has assumed buildout of regional retail/employment uses for the four parcels to minimize future CEQA review for future commercial projects consistent with the CR/E and CE zones of the ELTSP. Additionally, the proposed project will be required to abide by the FAR outlined in the ELTSP.
Issue Areas
The SEIR evaluated the changes in the project, changes in circumstances, or new information that led to the preparation of the further EIR. Therefore, the focus of the SEIR will be on the potential new or substantially more severe significant impacts caused by such changes that were not evaluated in the prior EIR. Since the approval of the 1995 ELTSP EIR, CEQA Guidelines have been amended. For example, lead agencies must now analyze greenhouse gas (GHG) emissions and energy of proposed projects, and the metric used for measuring transportation impacts is now vehicle miles traveled (VMT).
The aforementioned changes to the CEQA Guidelines represent a change in circumstances since the certification of the ELTSP EIR. In addition, the potential exists for species not identified in the 1995 ELTSP EIR to now be present within the project site, which would represent new information leading to the preparation of a further EIR.
Accordingly, the SEIR addresses Biological Resources, GHG Emissions and Energy, and Transportation.
With the exception of Biological Resources, GHG Emissions and Energy, and Transportation, the remaining chapters of the 1995 ELTSP EIR remain applicable and the associated mitigation measures are still required. The SEIR identified mitigation measures, if necessary, to reduce all impacts to a less-than-significant level.
Final SEIR and Response to Comments
A SEIR was prepared for this project in accordance with CEQA. A Notice of Availability (NOA) of the Draft EIR was distributed and the SEIR was sent to the State Clearinghouse for distribution on January 11, 2024, for the 45-day public review period. The Draft SEIR https://www.antiochca.gov/community-
development-department/planning-division/environmental-documents.
A Final SEIR, which includes responses to comments and errors, has also been prepared
Antioch City Council Report
August 13, 2024 Agenda Item #4 6
6 Findings of fact for the SEIR and a Mitigation Monitoring and Reporting Program has been prepared and are included in the Resolution certifying the SEIR (see Attachment A).
ANALYSIS
Currently, the majority of the project site is undeveloped, consisting primarily of non-native vegetation. However, a portion of APN 053-072-003 is currently developed with a single- family residence and associated outbuildings. Surrounding existing land uses include single-family residences to the east and west, commercial uses to the south and southeast, and the Randall-Bold Water Treatment Plant and undeveloped lands to the north. In addition, the City of Oakley borders the project site to the east, the City of Brentwood borders the site to the southeast, and the East Antioch Creek borders the site to the west.
Proposed Specific Plan Amendment
The City is proposing to modify the approval process for commercial development within the CR/E and CE designated parcels of the ELTSP Area. Currently, as outlined in Section 9 of the ELTSP, all development within the ELTSP Area requires approval of a PD Rezone by City Council. The current process requires the submittal of a preliminary development plan application for review before the Planning Commission and City Council prior to submitting for entitlements. The City is proposing to amend Article 3 and Article 9 of the ELTSP to no longer require approval of a PD rezone and instead only require a Use development within the CR/E and CE designated parcels of the Specific Plan (see Attachment B, Exhibit 1). The goal of the modification is to streamline commercial development and minimize the need for further California Environmental Quality Act (CEQA) review. The current approval process requires two separate application submittals and a minimum of four public hearings before an entitlement could be approved. The proposed approval process will require one application submittal and one public hearing. All proposed developments within the four identified parcels of the ELTSP would comply with the procedures set forth in Article 26 and 27 of the Antioch Municipal Code. Each new development would need to comply with the land use provisions, design standards, and other elements of this Specific Plan. In addition, each application would be reviewed under CEQA to determine whether additional analysis would be required.
The Specific Plan Amendment does not modify any of the allowed uses or intensity of development of the ELTSP. It should be noted that while the proposed amendment would affect the entirety of the ELTSP, the amendment would only be applicable to the four parcels comprising the project site, as the remaining CR/E and CE designated parcels located within the Specific Plan Area have either already been developed or have site constraints that would prevent development from occurring.
In addition to the process changes, two additional development criteria are proposed to ensure that new development is developed as a regional center in the case of the CR designation and an employment retail district with a campus design in the case of the CE designation. The first is limiting the number of drive-throughs to two at each existing site.
This will limit the total number of drive-throughs to eight for the entire remaining Antioch City Council Report
August 13, 2024 Agenda Item #4 7
7 undeveloped parcels. Secondly, automotive uses, including gas stations are not allowed, with the exception of regional auto dealerships. Limiting automotive oriented uses will help create regional centers and human-scaled activity clusters in the CR and CE areas, respectively, consistent with the intent of the ELTSP.
Pollutant Discharge Elimination System (NPDES) Permit. Under the NPDES permit, all Specific Plans and Specific Plan updates must include a statement regarding the construction of green infrastructure as part of development through the specific plan. This statement has been added to Section 9.2 Development Entitlement Process.
PLANNING COMMISSION ACTION
On July 17th, 2024, the Antioch Planning Commission held a public hearing regarding the proposed project. Upon close of the public hearing, the Antioch Planning Commission recommend City Council approval of all of the requested entitlements.
At the close of the meeting, Planning Commission voted to approve the following resolutions:
1. Adopted the resolution recommending the City Council certify the ELTSP SEIR.
2. Adopt the resolution recommending the City Council approve the ELTSP amendment.
Public Comments at Planning Commission
During the Planning Commission meeting held on July 17, 2024, the Planning Commission asked staff clarification on what a SEIR is and its purpose, as well as, does staff know how many developers have decided to not develop this area due to the current entitlement requirements. Members of the public spoke and provided comments related to what level of environmental review would be needed for future development if the proposed project was approved and to concerns related to developing currently undeveloped areas used as habitat. After discussion, the Antioch Planning Commission unanimously voted to recommend the City Council approve all requested entitlements.
CONCLUSION
As presented in this staff report, the proposed project is consistent with the intent of the ELTSP, as well as with City standards and guidelines. Therefore, the Planning Commission recommends that the City Council take the following actions:
1. Adopt the resolution certifying the East Lone Tree Specific Plan Supplemental Environmental Impact Report (SEIR).
2. Adopt the resolution approving the East Lone Tree Specific Plan amendment.
Antioch City Council Report
August 13, 2024 Agenda Item #4 8
8 ATTACHMENTS
A. Resolution certifying the East Lone Tree Specific Plan Supplemental Environmental Impact Report
Exhibit A Mitigation Monitoring and Reporting Program
B. Resolution adopting the East Lone Tree Specific Plan Amendment Exhibit A - Proposed East Lone Tree Specific Plan Text Amendments
ATTACHMENT “A”
RESOLUTION NO. 2024/**
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ANTIOCH CERTIFYING
THE SUPPLEMENTAL ENVIRONMENTAL IMPACT REPORT FOR THE EAST LONE
TREE SPECIFIC PLAN PROJECT AS ADEQUATE FOR ADDRESSING THE
ENVIRONMENTAL IMPACTS OF THE PROPOSED PROJECT AND ADOPTING
CALIFORNIA ENVIRONMENTAL QUALITY ACT FINDINGS, MITIGATION
MEASURES AND A MITIGATION MONITORING AND REPORTING PROGRAM WHEREAS, the City of Antioch (“City”) is proposing to approve a Specific Plan Amendment, which would be a text amendment known as the East Lone Tree Specific Plan Project (“Project”), to modify the approval process for commercial development within the four Regional Retail/Employment (CR/E) and Employment Retail (CE) designated parcels of the East Lone Tree Specific Plan (ELTSP) Area; WHEREAS, the project site consists of an 87.82-acre site located in the eastern portion of the ELTSP Area on the eastern edge of the City of Antioch, California. The project site is bordered by the City of Oakley city limit to the east, the City of Brentwood city limit to the southeast, and the East Antioch Creek to the west. The site is identified by Assessor’s Parcel Numbers (APNs) 053-072-003, 053-072-025, 053-072-026, and 056-120-095. The parcels that comprise the project site are zoned Specific Plan (S-P) and are designated ELTSP Focus Area by the City’s General Plan. The majority of the project site is designated as CR/E, and a small portion of the site is designated CE; WHEREAS, the Project would modify the approval process for commercial development within the four CR/E and CE designated parcels of the ELTSP Area. The City is proposing to no longer require approval of a Planned Development (PD) Rezone, and would instead only require a Use Permit and Design Review approval by the City’s Planning Commission for commercial development within the CR/E and CE designated parcels of the Specific Plan. The Project would not involve specific development proposals at this time, and the Project would streamline future commercial development and minimize the need for further review under the California Environmental Quality Act (“CEQA”). The Project would also include an amendment to the ELTSP to require private Green Infrastructure facilities to be built as a result of the development of parcels; WHEREAS, the City, as lead agency under CEQA, has completed the Final Supplemental Environmental Impact Report (“Final SEIR” or “SEIR”) for the Project; WHEREAS, the City has determined that an SEIR to the ELTSP EIR is the appropriate CEQA document, given that only minor changes to the overall analysis contained in the ELTSP EIR were needed. All analysis and mitigation measures from the ELTSP EIR remain applicable to the Project, unless otherwise stated in the SEIR; WHEREAS, this document contains the City’s certification of the SEIR and its CEQA findings supporting approval of the Project considered in the SEIR. The Final SEIR has State Clearinghouse No. 1993111069;
A1
RESOLUTION NO. 2024/**
August 13, 2024
WHEREAS, a Draft Supplemental Environmental Impact Report (“Draft SEIR”) was released for a 45-day public and agency review on January 11, 2024. The Draft SEIR assesses the potential environmental effects of implementation of the Project, identifies means to eliminate or reduce potential adverse impacts, and evaluates a reasonable range of alternatives to the Project;
WHEREAS, the Final SEIR comprises the Draft SEIR together with one additional volume that includes the comments on the Draft SEIR submitted by interested public agencies and organizations; written responses to the environmental issues raised in those comments; revisions to the text of the Draft SEIR reflecting changes made in response to comments and other information; and a Mitigation Monitoring and Reporting Program. The Final SEIR is hereby incorporated in this document by reference and available on the City’s website at: https://www.antiochca.gov/community-development- department/planning-division/environmental-documents.
NOW, THEREFORE, BE IT RESOLVED AND DETERMINED, as follows:
CERTIFICATION OF THE FINAL SEIR
The City Council of the City of Antioch (the “City Council”) certifies that it has been presented with the Final SEIR and that it has reviewed and considered the information contained in the Final SEIR prior to making the following findings.
Pursuant to CEQA Guidelines Section 15090 (Title 14 of the California Code of Regulations, Section 15090) the City Council certifies that the Final SEIR has been completed in compliance with CEQA and the State CEQA Guidelines. The City Council certifies the Final SEIR for the Project as described above.
The City Council further certifies that the Final SEIR reflects its independent judgment and analysis.
FINDINGS
Having received, reviewed, and considered the Final SEIR and other information in the record of proceedings, the City Council hereby adopts the following findings in compliance with CEQA and the CEQA Guidelines:
Part A: Findings regarding the environmental review process and the contents of the Final SEIR.
Part B: Findings regarding the significant environmental impacts of the Project and the mitigation measures for those impacts identified in the Final SEIR and adopted within the Mitigation Monitoring and Reporting Program, as well as the reasons that some potential mitigation measures are rejected.
Part C: Findings regarding the reasonableness of the range of alternatives evaluated in the Final SEIR.
A2
RESOLUTION NO. 2024/**
August 13, 2024
The City Council certifies that these findings are based on full appraisal of all viewpoints, including all comments received up to the date of adoption of these findings, concerning the environmental issues identified and discussed in the Final SEIR. The City Council adopts the findings in Parts A, B, and C for the Project.
In addition to the findings regarding environmental impacts and mitigation measures, Part D, below, identifies the custodian and location of the record of proceedings, as required by CEQA.
Part E describes the Mitigation Monitoring and Reporting Program for the Project.
As described in Part E, the City Council hereby adopts the Mitigation Monitoring and Reporting Program as set forth in Exhibit A.1 to these findings.
Part A. Environmental Review Process
Preparation of the SEIR
The City completed the Draft SEIR for the Project and, beginning on January 11, 2024, the City made the Draft SEIR available for review and comment. A Notice of Availability was published and the period for receipt of comments on the Draft SEIR remained open for 45 days. Copies of the Draft SEIR document were made available at the City of Antioch Community Development Department, located at Third and “H” Streets, Antioch, and on the City’s website at: www.ci.antioch.ca.us. During the comment period, the City received two comment letters from public agencies and two comments from groups.
The Final SEIR was completed and available to commenting public agencies on or before July 3, 2024.
The Final SEIR contains all of the comments received during the public comment period, together with written responses to significant environmental issues raised in those comments, which were prepared in accordance with CEQA and the CEQA Guidelines.
The City Council finds and determines that the Final SEIR provides adequate, good faith, and reasoned responses to all comments raising significant environmental issues.
Absence of Significant New Information
CEQA Guidelines Section 15088.5 requires that a lead agency recirculate an EIR for further review and comment when significant new information is added to the EIR after public notice is given of the availability of a Draft EIR, but before certification of the Final EIR. New information added to an EIR is not “significant” unless the EIR is changed in a way that deprives the public of a meaningful opportunity to comment upon a substantial adverse environmental effect of the project or a feasible way to mitigate or avoid such an effect that the project proponent declines to implement. Recirculation is not required where the new information added to the EIR merely clarifies or amplifies or makes A3
RESOLUTION NO. 2024/**
August 13, 2024
insignificant modifications in an adequate EIR. The Guidelines provide examples of significant new information under this standard, which include the following:
1. A new significant environmental impact that would result from the Project (or any alternative) or from a new mitigation measure proposed to be implemented.
2. A substantial increase in the severity of an environmental impact would result unless mitigation measures are adopted that reduce the impact to a level of insignificance.
3. A feasible project alternative or mitigation measure considerably different from others previously analyzed would clearly lessen the significant environmental impacts of the Project (or an alternative), but the Project's proponents decline to adopt it.
4. The Draft EIR was so fundamentally and basically inadequate and conclusory in nature that meaningful public review and comment were precluded.
Having reviewed all the information in the record, the City Council finds that significant new information has not been added to the Final SEIR since public notice was given of the availability of the Draft SEIR. New or substantial changes to the Draft SEIR were not proposed as a result of the public comment process. The Final SEIR responds to comments and makes only minor technical changes, clarifications or additions to the Draft SEIR. The minor changes, clarifications, or additions to the Draft SEIR do not identify any new significant impacts or substantial increase in the severity of any environmental impacts, and do not include any new mitigation measures that would have a potentially significant impact. Therefore, the City Council finds that recirculation of the SEIR is not required.
Differences of Opinion Regarding the Impacts of the Project In making its determination to certify the Final SEIR and to approve the Project, the City Council recognizes that a range of technical and scientific opinion exists with respect to certain environmental issues. The City Council acknowledges that it has acquired an understanding of the range of this technical and scientific opinion by its review of the Draft SEIR, the comments received on the Draft SEIR and the responses to those comments in the Final SEIR, as well as testimony, letters, and reports regarding the Final SEIR and its own experience and expertise in these environmental issues. The City Council acknowledges that it has reviewed and considered, as a whole, the evidence and analysis presented in the Draft SEIR, the evidence and analysis presented in the comments on the Draft SEIR, the evidence and analysis presented in the Final SEIR, the information submitted on the Final SEIR, and the reports prepared by the experts who prepared the SEIR, by the City’s consultants, and by staff, addressing those comments.
The City Council acknowledges that it has gained a comprehensive and well-rounded understanding of the environmental issues presented by the Project. The City Council A4
RESOLUTION NO. 2024/**
August 13, 2024
acknowledges that in turn, this understanding has enabled the City Council to make its decisions after weighing and considering the various viewpoints on these important issues. The City Council accordingly certifies that its findings are based on full appraisal of all of the evidence contained in the Final SEIR, as well as the evidence and other information in the record addressing the Final SEIR.
Part B. Impacts and Mitigation Measures
The City Council acknowledges that these findings provide the written analysis and conclusions of the City Council regarding the environmental impacts of the Project and the mitigation measures identified by the Final SEIR and adopted by the City Council within the Mitigation Monitoring and Reporting Program. It should be noted that the Mitigation Monitoring and Reporting Program adopted for the Project also includes the mitigation measures from the ELTSP EIR, in addition to the new mitigation measures from the SEIR identified below.
1. Significant or Potentially Significant Impacts Mitigated to a Less-Than- Significant Level.
The following significant and potentially significant environmental impacts of the Project, including cumulative impacts, are being mitigated to a less-than-significant level and are set out below. Pursuant to Section 21081(a)(1) of CEQA and Section 15091(a)(1) of the CEQA Guidelines, as to each such impact, the City Council, based on the evidence in the record before it, finds that changes or alterations incorporated into the Project by means of conditions or otherwise, mitigate, avoid or substantially lessen these significant or potentially significant environmental impacts of the Project to a less-than-significant level. The basis for the finding for each identified impact is set forth below.
Biological Resources
Impact 4.1-1 Have a substantial adverse effect, either directly or through habitat modifications, on special-status plant species.
Mitigation Measures: The following mitigation measure has been adopted to address this impact:
4.1-1 Prior to the initiation of any future ground-disturbing activities on the project site, the project applicant shall retain a qualified biologist to conduct a planning-level special-status plant survey during the appropriate season to identify the species. Project construction shall not be initiated until the special-status plant survey is completed and mitigation is implemented, if necessary and required prior to starting construction.
A special-status plant survey report that includes the methods used, survey participants, and associated findings shall be prepared and A5
RESOLUTION NO. 2024/**
August 13, 2024
submitted to the City no more than 30 days following the completion of the final site visit conducted as part of the survey. A record of any special-status plant species identified within the project site during the preconstruction surveys shall be submitted to the CNDDB. If new special-status plant populations are not found on the site during the appropriately timed surveys, additional mitigation is not required. If construction is not started within two years after the special-status plant survey is completed, the City may require additional special- status plant surveys.
If special-status plants are observed on the site during the survey, the populations shall be avoided to the maximum degree possible during project development, and a Mitigation and Monitoring Plan shall be prepared detailing the measures to be implemented to avoid the plant population. Measures shall include, but not be limited to, establishment of appropriate buffers during construction, fencing of the population prior to and during construction, and regular monitoring of the preserved population by a biologist during and after construction activities. The Mitigation and Monitoring Plan shall be implemented prior to the initiation of project grading. If the plant populations cannot be avoided, the applicant shall hire a qualified biologist to prepare a seed collection and replanting plan in coordination with the City of Antioch to reduce impacts to the identified special-status plant populations, subject to review and approval by the City of Antioch Community Development
Department.
Finding: Implementation of Mitigation Measure 4.1-1 would reduce potential impacts to special-status wildlife species to a less-than-significant level by requiring a planning-level special-status plant survey during the appropriate season to identify the species, which would ensure that special-status plant populations are avoided to the maximum extent possible. If the plant population cannot be avoided, the applicant would be required to hire a qualified biologist to prepare a seed collection and replanting plan in coordination with the City of Antioch.
Impact 4.1-2 Have a substantial adverse effect, either directly or through habitat modifications, on special-status wildlife species.
Mitigation Measures: The following mitigation measures have been adopted to address this impact:
American Badger
4.1-2(a) The project applicant shall retain a qualified biologist to conduct a preconstruction survey to determine the presence or absence of badgers no more than seven days prior to the initiation of any future A6
RESOLUTION NO. 2024/**
August 13, 2024
ground-disturbing activities on the project site. If badgers are not identified, further mitigation is not required. If an active badger den is identified during preconstruction surveys within or immediately adjacent to an area subject to construction, a qualified biologist shall establish a construction-free buffer of up to 300 feet around the badger den. Once the biologist has determined that the badger has vacated the burrow, the burrow can be collapsed or excavated, and ground disturbance can proceed. Should the burrow be determined to be a natal or reproductive den, and because badgers are known to use multiple burrows in a breeding burrow complex, a biological monitor shall be present on-site during construction activities in the vicinity of the burrows to ensure that the buffer is adequate to avoid direct impact to individuals or natal/reproductive den abandonment.
The monitor shall be required to be present until it is determined that the badger young are of an independent age and construction activities would not harm individual badgers. A written summary of the survey results shall be submitted to the City of Antioch Community Development Department.
San Joaquin Kit Fox
4.1-2(b) A qualified biologist shall conduct preconstruction surveys no more than 14 days prior to site grading to determine the presence or absence of kit fox. If kit fox is not identified during the surveys, further mitigation is not required. If an active kit fox den is identified during preconstruction surveys within or immediately adjacent to an area subject to construction, a qualified biologist shall establish a construction free buffer of up to 300 feet around the San Joaquin kit fox den. Once the biologist has determined that the San Joaquin kit fox has vacated the den, the den can be collapsed or excavated, and ground disturbance can proceed. Should the den be determined to be a natal or reproductive den, a biological monitor shall be present on-site during construction activities in the vicinity of the dens to ensure that the buffer is adequate to avoid direct impact to individuals or natal/reproductive den abandonment. The monitor shall be required to be present until it is determined that the young are of an independent age and construction activities would not harm individual San Joaquin kit fox. A written summary of the survey results shall be submitted to the City of Antioch Community Development Department.
Swainson’s Hawk
4.1-2(c) Prior to the initiation of any future ground-disturbing activities on the project site that occur during the nesting season (March 15th to September 15th) within a half-mile of a potential nest tree, a qualified biologist shall conduct preconstruction surveys within the A7
RESOLUTION NO. 2024/**
August 13, 2024
construction zones and adjacent lands to identify any nesting pairs of Swainson’s hawks within 14 days prior to the onset of ground disturbance. Preconstruction surveys are not required for construction activities located farther than a half-mile from a potential nest tree. Surveys shall follow the protocol in the Recommended Timing and Methodology for Swainson’s Hawk Nesting Surveys in California’s Central Valley (Swainson’s Hawk Technical Advisory Committee 2000), including the survey period lengths identified therein. A written summary of the survey results shall be submitted to the City of Antioch Community Development Department.
If active nests are not found during preconstruction surveys, further mitigation is not necessary. If any active nests are discovered in or near proposed construction zones, the qualified biologist shall establish a suitable construction-free buffer around the active nest site. The buffer shall be identified on the ground with flagging or fencing and shall be maintained until the qualified biologist has determined that the young have fledged.
Western Burrowing Owl
4.1-2(d) Prior to the initiation of any future ground-disturbing activities on the project site, a preconstruction survey for burrowing owls shall be conducted. The CDFG’s Staff Report on Burrowing Owl Mitigation (CDFG 2012) states that take avoidance (preconstruction) surveys shall be conducted within 14 days prior to ground disturbance. As burrowing owls may recolonize a site after only a few days, time lapses between project activities trigger subsequent take avoidance surveys, including, but not limited to, a final survey conducted within 24 hours prior to ground disturbance to ensure absence of the species. Surveys shall ensure 100 percent visual coverage. The results of the survey shall be submitted to the City of Antioch Community Development Department.
If burrowing owls or fresh sign of burrowing owls are not observed during preconstruction surveys, further mitigation is not required and construction may proceed. If burrowing owls or their recent sign are detected on the site, occupied burrows shall be identified by the monitoring biologist and a construction-free buffer shall be established as determined by a qualified biologist and maintained until the qualified biologist has determined the burrowing owl has abandoned the burrow.
White-tailed Kite and Other Nesting Birds and Raptors
4.1-2(e) Prior to the initiation of any future ground-disturbing activities or tree removal on-site during the breeding season (typically between A8
RESOLUTION NO. 2024/**
August 13, 2024
February 1st and August 31st), the project applicant shall retain a qualified biologist to conduct preconstruction migratory bird and raptor nesting surveys within 14 days prior to the onset of ground disturbance. The nesting migratory bird surveys shall cover the project site and the raptor nesting surveys shall encompass the site and lands within 250 feet of the site, where accessible. A written summary of the survey results shall be submitted to the City of Antioch Community Development Department. If nesting migratory birds or raptors are not identified during the surveys, further mitigation is not required.
If nesting migratory birds or raptors are identified during the surveys, an appropriate construction-free buffer shall be established. The actual size of the buffer, which would be determined by the qualified biologist, will depend on the species, topography, and type of activity that would occur in the vicinity of the nest. The project buffer shall be monitored periodically by the qualified biologist to ensure compliance. Construction or earth-moving activity shall not occur within the established buffer until determined by a qualified biologist that the young have fledged.
Finding: Implementation of Mitigation Measures 4.1-2(a) through 4.1-2(e) would reduce potential impacts to special-status wildlife species to a less-than-significant level by requiring completion of preconstruction surveys and implementation of appropriate avoidance measures.
Impact 4.1-5 Conflict with any local policies or ordinances protecting biological resources, such as a tree preservation policy or ordinance.
Mitigation Measures: The following mitigation measure has been adopted to address this impact:
4.1-5 Prior to any tree removal, an arborist report shall be prepared by a certified arborist and submitted to the City of Antioch Community Development Department for review and approval. In conjunction with submittal of the arborist report, a site plan showing all trees proposed for removal shall be submitted. All trees that are legally removed as part of the proposed project shall be replaced according to the following schedule, to the satisfaction of the City of Antioch Community Development Department:
1. Each established tree: two 24-inch box trees.
2. Each mature tree: two 48-inch box trees.
A9
RESOLUTION NO. 2024/**
August 13, 2024
The locations and sizes of the replacement trees shall be clearly shown on the final landscape plans, which shall be submitted to the City of Antioch Community Development Department for review and approval prior to building permit issuance for any future development within the project site.
Finding: Implementation of Mitigation Measure 4.1-5 would reduce impacts related to conflicting with a tree preservation policy to a less-than-significant level by ensuring that all trees that are determined to meet the tree criteria established in Section 9-5.1205 of the City’s Municipal Code that are removed due to project buildout would be replaced appropriately.
Impact 4.2-2 Generate greenhouse gas (GHG) emissions, either directly or indirectly, that may have a significant impact on the environment, or conflict with an applicable plan, policy, or regulation adopted for the purpose of reducing the emissions of GHGs.
Mitigation Measure: The following mitigation measure has been adopted to address this impact:
4.2-2 The following requirements shall be noted on all future project improvement plans, subject to review and approval by the City of Antioch Community Development Department:
Consistent with the BAAQMD’s Buildings standard a., natural gas shall be prohibited in any structures proposed within the project site.
Consistent with the BAAQMD’s Transportation criterion b., future development on the project site shall be constructed to include electric vehicle (EV) parking spaces consistent with the most recently adopted CALGreen Code Tier 2 off-street EV requirements.
Finding: Implementation of Mitigation Measure 4.2-2 would reduce impacts associated with conflicts with an applicable plan, policy, or regulation adopted for the purpose of reducing the emissions of GHGs to a to a less-than-cumulatively considerable level by requiring the Project to be consistent with the Bay Area Air Quality Management District’s (BAAQMD’s) Building standard of prohibiting natural gas and Transportation criterion of requiring future development to include EV parking spaces, consistent with the most recently adopted California Green Building Standards (CALGreen) Code Tier 2 off-street EV requirements.
Impact 4.3-1 Conflict with a program, plan, ordinance, or policy addressing the circulation system during construction activities.
A10
RESOLUTION NO. 2024/**
August 13, 2024
Mitigation Measure: The following mitigation measure has been adopted to address this impact:
4.3-1 Prior to the issuance of any grading and/or building permits for any CR/E or CE designated site within the ELTSP area, the project applicant that is proposing to develop a CR/E or CE designated site shall submit a construction management plan for the applicable site, subject to review and approval by the City Engineer. The requirements within the construction management plan shall include, but are not necessarily limited to, the following elements:
Project staging plan to maximize on-site storage of materials and equipment;
A set of comprehensive traffic control measures, including scheduling of major truck trips and deliveries to avoid peak hours; lane closure proceedings; signs, cones, and other warning devices for drivers; and designation of construction access routes;
Permitted construction hours;
Location of construction staging;
Identification of parking areas for construction employees, site visitors, and inspectors, including on-site locations; and Provisions for street sweeping to remove construction related debris on public streets.
Finding: Implementation of Mitigation Measure 4.3-1 would require preparation of a construction management plan for development of any CR/E or CE designated site within the ELTSP area. Thus, impacts associated with conflicts with a program, plan, ordinance, or policy addressing the circulation system during construction activities would be reduced to a to a less-than-significant level.
The City Council acknowledges that in making these findings, the City Council has considered the opinions of other agencies and members of the public, including opinions that disagree with some of the analysis and significance thresholds used in the SEIR. The City Council finds that the determination of significance thresholds is a judgment within the discretion of the City Council; the significance thresholds used in the SEIR are supported by substantial evidence in the record, including the expert opinion of the SEIR preparers and City staff; and the significance thresholds used in the SEIR provide reasonable and appropriate means of assessing the significance of the adverse environmental effects of the Project.
In particular, the SEIR relied on significance criteria for evaluating impacts that are tailored to this type of project. The criteria used in this SEIR to determine whether an impact is or is not “significant” are based on (a) CEQA-stipulated “mandatory findings of significance” listed in CEQA Guidelines section 15065; (b) the relationship of the Project A11
RESOLUTION NO. 2024/**
August 13, 2024
effect to the adopted policies, ordinances and standards of the City and of responsible agencies; and (c) commonly accepted practice and the professional judgment of the SEIR authors and City staff.
A full explanation of the environmental findings and conclusions can be found in the Final SEIR and these findings hereby incorporate by reference the discussion and analysis in the Final SEIR supporting the Final SEIR’s determinations regarding the Project’s impacts and mitigation measures designed to address those impacts. In making these findings, the City Council ratifies, adopts, and incorporates the analysis and explanation in the Final SEIR, and ratifies, adopts, and incorporates in these findings the determinations and conclusions of the Final SEIR relating to environmental impacts and mitigation measures, except to the extent any such determinations and conclusions are specifically and expressly modified by these findings.
The City Council adopts, and incorporates as conditions of approval of the Project, the mitigation measures set forth in the Mitigation Monitoring and Reporting Program attached to these findings as Exhibit A.1 to reduce or avoid the potentially significant and significant impacts of the Project. The City Council acknowledges that in adopting these mitigation measures, the City Council intends to adopt each of the mitigation measures recommended for approval by the Final SEIR. Accordingly, in the event a mitigation measure recommended in the Final SEIR has inadvertently been omitted from Exhibit A.1, such mitigation measure is hereby adopted and incorporated in the findings below by reference. In addition, in the event the language describing a mitigation measure set forth in Exhibit A.1 fails to accurately reflect the mitigation measures in the Final SEIR due to a clerical error, the language of the mitigation measure as set forth in the Final SEIR shall control, unless the language of the mitigation measure has been specifically and expressly modified by these findings.
The City Council hereby finds that the adopted mitigation measures are changes or alterations that have been required in, or incorporated into, the Project which reduce or avoid significant effects on the environment to the maximum extent feasible.
Part C. Alternatives
Summary of Discussion of Alternatives in the Final SEIR The Draft SEIR evaluates two potential alternatives to the Project. The Draft SEIR examines the environmental impacts of each alternative in comparison with the Project and the relative ability of each alternative to satisfy Project objectives.
Findings Relating to Alternatives
In making these findings, the City Council certifies that it has independently reviewed and considered the information on alternatives provided in the Final SEIR, including the information provided in comments on the Draft SEIR and the responses to those comments in the Final SEIR. The Draft SEIR’s discussion and analysis of these A12
RESOLUTION NO. 2024/**
August 13, 2024
alternatives is not repeated in these findings, but the discussion and analysis of the alternatives in the Draft SEIR is incorporated in these findings by reference.
The Draft SEIR describes and evaluates in detail two alternatives to the Project.
The City Council acknowledges that the reasons for the City Council’s decision to approve the Project instead of the remaining alternatives are presented below. The City Council finds that the Project would satisfy the Project Objectives, and the remaining alternatives are unable to satisfy the Project objectives to the same degree as the Project. The City Council further finds that, on balance, none of the remaining alternatives has environmental advantages over the Project that are sufficiently great to justify approval of such an alternative instead of the Project, in light of each such alternative’s inability to satisfy the Project objectives to the same degree as the Project. Accordingly, the City Council determines to approve the Project instead of approving one of the remaining alternatives.
Description of Project Objectives
The Project objectives are the following:
1. Facilitate economic development within the City of Antioch.
2. Facilitate commercial development in order to increase employment opportunities within Antioch.
3. Encourage a land use mix in Antioch that supports an economically vibrant and high amenity community.
4. Streamline future commercial project approvals consistent with the ELTSP.
5. Minimize future CEQA review for commercial projects consistent with the ELTSP.
Discussion and Findings Relating to the Alternatives Evaluated in the Draft SEIR
Chapter 6 of the Draft SEIR evaluates the following two alternatives, which are summarized below:
No Project (No Build) Alternative; and
100 Percent Employment Alternative.
No Project (No Build) Alternative.
Under CEQA, a “no-project alternative” compares the impacts of proceeding with a proposed project with the impacts of not proceeding with the proposed project. A no- project alternative describes the existing environmental conditions, along with a discussion of what would be reasonably expected to occur at the site in the foreseeable A13
RESOLUTION NO. 2024/**
August 13, 2024
future, based on current plans and consistent with available infrastructure and community services.
In the case of the proposed project, the No Project Alternative could be analyzed under two different scenarios: the No Project (No Build) Alternative and the No Project (Buildout Pursuant to Existing ELTSP) Alternative. The No Project (Buildout Pursuant to Existing ELTSP) Alternative would still allow for regional retail and/or employment uses to be developed on the project site, which would result in identical impacts as the proposed project. The No Project (No Build) Alternative would result in the continuation of the existing conditions of the project site, which is currently undeveloped, consisting primarily of non-native vegetation, with the exception of APN 053-072-003, which is partially developed with a single-family residence and associated outbuildings. Because implementation of the No Project (No Build) Alternative would result in the site remaining under current conditions, physical environmental impacts associated with the proposed project would not occur. Therefore, implementation of the No Project (No Build) Alternative would result in fewer overall impacts compared to that of the Project. However, the City’s General Plan identifies the site as an area suitable for development; as such, the No Project (No Build) Alternative would not fulfill the stated aims of the City’s General Plan. In addition, the alternative would not fulfill any of the project’s objectives.
On balance, the environmental benefits that might be achieved with the No Project (No Build) Alternative are outweighed by the failure to achieve any of the Project objectives, and the City Council rejects this alternative. 100 Percent Employment Alternative.
The 100 Percent Employment Alternative would modify the approval process for commercial development within the CR/E and CE designated parcels of the ELTSP Area to no longer require approval of a PD Rezone, and would instead only require a Use Permit and Design Review approval by the City’s Planning Commission for commercial development within the CR/E and CE designated parcels of the ELTSP Area. The approval process modification would still require approval of a Specific Plan Amendment.
However, whereas the proposed project would allow for a mix of regional retail and employment uses within the project site, the 100 Percent Employment Alternative would consist of buildout of the project site with entirely employment uses. As such, the Alternative would develop a total of 1,530,176 square feet (sf) of employment uses within the project site, including up to 317,291 sf on Parcel 1 (APN 056-120-095), 683,021 sf on Parcel 2 (APN 053-072-026), 113,604 sf on Parcel 3 (APN 053-072-003) and 416,259 sf on Parcel 4 (APN 053-072-025). The total disturbance area would be identical to the proposed project.
The Draft SEIR determined that the 100 Percent Employment Alternative would be capable of fully or partially meeting all project objectives because the Alternative would still facilitate economic development within the City of Antioch, streamline future commercial project approvals consistent with the ELTSP, and minimize future CEQA review for commercial projects consistent with the ELTSP.
A14
RESOLUTION NO. 2024/**
August 13, 2024
Total unmitigated annual operational GHG emissions for the first year of full operations on the project site would be less than what would occur under project conditions. However, the applicable BAAQMD thresholds of significance for GHG emissions are qualitative, and the information regarding GHG emissions is provided for disclosure purposes only. Similar to the proposed project, because specific development proposals do not currently exist for the potential future development of the project site, the prohibition of natural gas appliances and plumbing on-site, and compliance with the most recently adopted CALGreen Tier 2 off-street EV requirements cannot be ensured at this time, and the Alternative would still require Mitigation Measure 4.1-2. Additionally, the Alternative would result in similar impacts related to biological resources and transportation as the proposed project. As a result, the significant impacts identified for the Project would still be expected to occur under the Alternative, and all mitigation measures would still be required.
Although the 100 Percent Employment Alternative would achieve all of the project objectives, impacts would be similar and all identified mitigation measures would still be required for the Project. As such, the City Council rejects this alternative.
Findings Regarding Reasonable Range of Alternatives
The City Council finds that the range of alternatives evaluated in the EIR reflects a reasonable attempt to identify and evaluate various types of alternatives that would potentially be capable of reducing the Project’s environmental effects, while accomplishing most but not all of the Project objectives. The City Council finds that the alternatives analysis is sufficient to inform the City Council and the public regarding the tradeoffs between the degree to which alternatives to the Project could reduce environmental impacts and the corresponding degree to which the alternatives would hinder the City’s ability to achieve the Project objectives.
Part D. Record of Proceedings
Various documents and other materials constitute the record upon which the City Council bases these findings and the approvals contained herein. The custodian and location of these documents and materials is: Zoe Merideth, Planning Manager, City of Antioch, 200 H Street, Antioch, CA 94531.
Part E. Mitigation Monitoring and Reporting Program
In accordance with CEQA and the CEQA Guidelines, the City Council must adopt a mitigation monitoring and reporting program to ensure that the mitigation measures adopted herein are implemented. The City Council hereby adopts the Mitigation Monitoring and Reporting Program for the Project attached to these findings as Exhibit A.1. The Mitigation Monitoring and Reporting Program includes the mitigation measures from the ELTSP EIR, as well as the mitigation measures from the SEIR.
A15
RESOLUTION NO. 2024/**
August 13, 2024
NOW THEREFORE BE IT FURTHER RESOLVED that the Environmental Impact Report for the East Lone Tree Specific Plan Project is HEREBY CERTIFIED pursuant to the California Environmental Quality Act. All feasible mitigation measures for the Project identified in the Environmental Impact Report and accompanying studies are hereby incorporated into this approval.
* * * * * * *
I HEREBY CERTIFY that the foregoing resolution was adopted by the City Council of the City of Antioch at a regular meeting thereof held on the 13th day of August 2024, by the following vote:
AYES:
NOES:
ABSTAIN:
ABSENT:
_____________________________________
ELIZABETH HOUSEHOLDER
CITY CLERK OF THE CITY OF ANTIOCH
A16
Final SEIR
East Lone Tree Specific Plan Project
July 2024
Chapter 4 – Mitigation Monitoring and Reporting Program
4.1 INTRODUCTION
Section 15097 of the California Environmental Quality Act (CEQA) requires all State and local agencies to establish monitoring or reporting programs for projects approved by a public agency whenever approval involves the adoption of either a “mitigated negative declaration” or specified environmental findings related to an EIR.
The following is the Mitigation Monitoring and Reporting Program (MMRP) for the East Lone Tree Specific Plan (ELTSP) Project (proposed project). The intent of the MMRP is to ensure implementation of the mitigation measures identified within the ELTSP Environmental Impact Report (EIR), certified by the City of Antioch City council in August 1995, as well as any modified and new mitigation measures identified within the Supplemental EIR (SEIR). Unless otherwise noted, the cost of implementing the mitigation measures as prescribed by this MMRP shall be funded by the applicants of future development projects proposed within the project site.
4.2 COMPLIANCE CHECKLIST
The MMRP contained herein is intended to satisfy the requirements of CEQA as they relate to the 1995 ELTSP EIR and SEIR prepared by the City of Antioch. This MMRP is intended to be used by City staff and mitigation monitoring personnel to ensure compliance with mitigation measures during project implementation. Mitigation measures identified in this MMRP were developed in the 1995 ELTSP EIR and SEIR that were prepared for the proposed project.
The 1995 ELTSP EIR and SEIR present a detailed set of mitigation measures that will be implemented throughout the lifetime of the project. Mitigation is defined by CEQA Guidelines, Section 15370, as a measure that:
Avoids the impact altogether by not taking a certain action or parts of an action; Minimizes impacts by limiting the degree or magnitude of the action and its implementation;
Rectifies the impact by repairing, rehabilitating, or restoring the impacted environment; Reduces or eliminates the impact over time by preservation and maintenance operations during the life of the project; or
Compensates for the impact by replacing or providing substitute resources or environments.
The intent of the MMRP is to ensure the implementation of adopted mitigation measures. The MMRP will provide for monitoring of construction activities as necessary and in-the-field identification and resolution of environmental concerns.
This MMRP includes changes to the previous MMRP included in the Final 1995 ELTSP EIR. New text is indicated in double underline and text to be deleted is reflected by a strike through.
4.MITIGATION MONITORING AND
REPORTING PROGRAM
EXHIBIT A
A17
Final SEIR
East Lone Tree Specific Plan Project
July 2024
Chapter 4 – Mitigation Monitoring and Reporting Program
Monitoring and documenting the implementation of mitigation measures will be coordinated by the City of Antioch. The table in Section 4.3 identifies the mitigation measure, the monitoring action for the mitigation measure, the responsible party for the monitoring action, and timing of the monitoring action. The applicant will be responsible for fully understanding and effectively implementing the mitigation measures contained within the MMRP. The City will be responsible for monitoring compliance.
4.3 MITIGATION MONITORING AND REPORTING PROGRAM
The following table indicates the mitigation measure number, the impact the measure is designed to address, the measure text, the monitoring agency, implementation schedule, and an area for sign-off indicating compliance.
EXHIBIT A
A18
A19
A20
A21
A22
A23
A24
A25
A26
A27
A28
A29
A30
A31
A32
A33
A34
A35
A36
A37
A38
A39
A40
A41
A42
A43
A44
A45
A46
A47
A48
A49
A50
A51
A52
A53
A54
A55
A56
A57
A58
A59
A60
A61
A62
A63
ATTACHMENT “B”
RESOLUTION NO. 2024/**
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ANTIOCH
APPROVING THE EAST LONE TREE SPECIFIC PLAN AMENDMENT
WHEREAS, the City of Antioch (“City”) is proposing to approve a Specific Plan Amendment, which would be a text amendment known as the East Lone Tree Specific Plan Project (“Project”), to modify the approval process for commercial development within the four Regional Retail/Employment (CR/E) and Employment Retail (CE) designated parcels of the East Lone Tree Specific Plan (ELTSP) Area; WHEREAS, the project site consists of an 87.82-acre site located in the eastern portion of the ELTSP Area on the eastern edge of the City of Antioch, California. The project site is bordered by the City of Oakley city limit to the east, the City of Brentwood city limit to the southeast, and the East Antioch Creek to the west. The site is identified by Assessor’s Parcel Numbers (APNs) 053-072-003, 053-072-025, 053-072-026, and 056-120-095. The parcels that comprise the project site are zoned Specific Plan (S-P) and are designated ELTSP Focus Area by the City’s General Plan. The majority of the project site is designated as CR/E, and a small portion of the site is designated CE; WHEREAS, the Project would modify the approval process for commercial development within the four CR/E and CE designated parcels of the ELTSP Area. The City is proposing to no longer require approval of a Planned Development (PD) Rezone and would instead only require a Use Permit and Design Review approval by the City’s Planning Commission for commercial development within the CR/E and CE designated parcels of the Specific Plan. The Project would not involve specific development proposals at this time, and the Project would streamline future commercial development and minimize the need for further review under the California Environmental Quality Act (“CEQA”). The Project would also include an amendment to the ELTSP to require private Green Infrastructure facilities to be built as a result of the development of parcels; WHEREAS, on August 13, 2024, the Antioch City Council certified the Supplemental Environmental Impact Report (SEIR) for the East Lone Tree Specific Plan Project as adequate for addressing the environmental impacts of the proposed project and adopting the California Environmental Quality Act (CEQA) Findings, Mitigation Measures, and a Mitigation Monitoring and Reporting Program (MMRP); WHEREAS, the primary purpose of the Specific Plan Amendment is to facilitate economic development within the City of Antioch; facilitate commercial development in order to increase employment opportunities within Antioch; encourage a land use mix in Antioch that supports an economically vibrant and high amenity community; streamline future commercial project approvals consistent with the ELTSP; and minimize future California Environmental Quality Act review for commercial projects consistent with the ELTSP; and
WHEREAS, on July 17, 2024, the Antioch Planning Commission duly held a public hearing on the matter, and received and considered evidence, both oral and B1
RESOLUTION NO. 2024/**
August 13, 2024
documentary and recommended City Council approval of the East Lone Tree Specific Plan Amendment;
WHEREAS, the City Council duly gave notice of public hearing as required by law;
WHEREAS, on August 13, 2024, the City Council duly held a public hearing on the matter, and received and considered evidence, both oral and documentary; and
WHEREAS, the City Council considered all public comments received, the presentation by City staff, the staff report, and all other pertinent documents regarding the proposed request.
NOW, THEREFORE, BE IT RESOLVED AND DETERMINED, that the City Council does hereby make the following findings for approval of the Specific Plan Amendment:
1. The proposed project conforms to the provisions and standards of the ELTSP because the proposed amendment is internally consistent with all other provisions of the ELTSP and does not conflict with any of the previously adopted Goals, Policies and Programs of the General Plan;
2. The proposed Amendment is necessary to implement the goals and objectives of the General Plan because the project will provide additional jobs and sales taxes to the City;
3. The proposed Amendment will not be detrimental to the public interest, convenience, and general welfare of the City because the Amendment will result in a logical placement of land uses consistent with the overall intent of the ELTSP; and
4. The proposed project will not cause environmental damage because the ELTSP SEIR determined that all potential environmental impacts would be less than significant with mitigations incorporated.
NOW, THEREFORE, BE IT RESOLVED AND DETERMINED, that the City Council does hereby make the following findings for approval of the Specific Plan Amendment, as required in Section 9.5 of the ELTSP:
A. Changes in the community have occurred since the adoption of the Specific Plan warranting an amendment as requested.
Since the adoption of the ELTSP, the majority of the Specific Plan area has been built out and the City of Antioch has grown substantially. The change in the processing of entitlements does not change the goals and objectives of the B2
RESOLUTION NO. 2024/**
August 13, 2024
plan, and instead creates an entitlement process that mirrors other areas of the City.
B. The change will benefit the Specific Plan area.
The Amendments will allow for the streamlining of future commercial projects and minimize future CEQA review for projects, which both further the goals of the ELTSP to develop commercial areas in the Specific Plan with commercial uses.
C. The change is in conformance with the adopted General Plan.
The project will provide additional jobs and tax revenue to the City, which will implement the goals and objectives of the General Plan. The proposed amendments are consistent with the ELTSP and the General Plan designation of Specific Plan.
D. The change will not adversely affect adjacent properties and can be properly serviced.
The change will not adversely affect adjacent properties because this is a procedural change to the processing of entitlements and does not authorize physical development of land or how it may be serviced. A public hearing will still be required giving adjacent property owners an opportunity to provide public comment regarding any future project.
E. The physical constraints of the property are such that the change is warranted.
The proposed changes are not physical in nature and rather related to processes. Therefore, this finding is not applicable to the project.
NOW, THEREFORE, BE IT FURTHER RESOLVED AND DETERMINED, that the City Council hereby APPROVES the Specific Plan Amendment removing the requirement of a Planned Development rezone approval for sites identified by APN 053-072-003, 053- 072-025, 053-072-026, and 056-120-095 as set forth herein as Exhibit A. The CR/E and CE designated parcels would only require a Use Permit and Design Review approval by the City’s Planning Commission for commercial development.
B3
RESOLUTION NO. 2024/**
August 13, 2024
* * * * * * *
I HEREBY CERTIFY that the foregoing resolution was adopted by the City Council of the City of Antioch at a regular meeting thereof held on the 13th day of August, 2024, by the following vote:
AYES:
NOES:
ABSTAIN:
ABSENT:
_____ ________________________________
ELIZABETH HOUSEHOLDER
CITY CLERK OF THE CITY OF ANTIOCH
B4
Exhibit A
Proposed East Lone Tree Specific Plan Text Amendment
ARTICLE 3: LAND USE
SECTION 3.3: Land Use Districts
All proposed developments within the ELTA shall comply with the procedures set forth in Section E.1 of the Zoning Ordinance for Planned Developments. Each such development shall comply with the land use provisions, design standards, and other elements of this Specific Plan. (See also Section 3.5 for special land-use provisions relating to several of these districts.)
CR/E. Whereas the CR site is reserved for regional retail use only, the two CR/E sites may be developed for regional retail or employment. In addition, the following criteria must be met:
o A maximum of two drive-throughs will be allowed, per existing parcel, resulting in eight total for the entire area.
o Automotive uses are not allowed including gas stations, with the exception of regional auto dealerships, which could offer ancillary repair and maintenance services.
CE Employment Retail. The employment retail district is the place for the restaurants and service providers that the employment center requires to function.
It also, however, provides a sense of identity, vitality, and urbanity to what is otherwise a low, spread-out campus of largely internalized workplaces. The design of this retail place should create a human-scaled cluster of activity at the heart of the campus. In addition, the following criteria must be met:
o A maximum of two drive-throughs will be allowed, per existing parcel, resulting in eight total for the entire area.
o Automotive uses are not allowed including gas stations, with the exception of regional auto dealerships, which could offer ancillary repair and maintenance services.
SECTION 3.4: Site, Height and Density Criteria
(i) Each site with this designation shall be developed as a single project. While development of each project may be phased, it shall follow a single masterplan for the entire site. Development on any portion of a site shall not be approved until an overall master plan is approved for the entire site as part of the required Use Permit and Design Review process. For the purposes of this provision, the term ‘site’ shall be defined as one or more contiguous parcels with the same designation, undivided by streets or other public lands.
B5
SECTION 3.5: Special Provisions
Certain of the districts described in 3.3 are subject to special provisions regarding permitted uses.
CR Regional Retail. The future construction of the Route 4 Bypass and Laurel Road, and the widening of Lone Tree Way, do create the potential for regional retail development at these two interchanges. However, premature, suboptimal development could destroy this potential, both by precluding the land assembly required for a major regional center, and by degrading the image of the location with low-quality projects.
The four parcel 3 sites designated CR or CR/E shall each be developed as a single project. While development on a CR or CR/E site may be phased, it shall follow a single master plan for the entire site. Development on any portion of a CR or CR/E site shall not be approved until an overall masterplan is approved for the entire siteas part of the required Use Permit and Design Review process.
Given that it may be several years before the Route 4 Bypass and/or Sunset Drive are isconstructed, interim uses may be located in the CR or CR/E designations where planned construction of Sunset Drive will impact the sites. Interim uses are defined as those which are short term in nature, and which do not clearly fit the land use districts as defined in section 3.3. Such interim uses would be subject to use permit approval by the Planning Commission, and all required use permit findings must be made. In addition, the following criteria must be met:
o The use must be determined to be short term in nature, with the duration of the use being tied to the estimated timing for construction of the Route 4 Bypass and/orSunset Drive.
o Guarantees must be included to ensure the removal of the use at the time specified in the use permit.
o The level of capital investment must be consistent with the short-term nature of the site.
ARTICLE 9: SPECIFIC PLAN ADMINISTRATION
SECTION 9.2: Development Entitlement Process
Planned Development Process:
All developments within the Specific Plan Area are required to go through the Planned Development Review process as determined by Section 23 of the Antioch Municipal Zoning Code. Exceptions to this requirement are identified in Section 9.4 and as described in CR/E and CE section below. The Planned Development Thisprocess requires the following major steps:
B6
A. The submittal and approval of a preliminary development plan. While optional under the Zoning Ordinance, this is a requirement of the Specific Plan.
B. The submittal and approval of Planned Development Zoning and a Final Development Plan as specified in the Antioch Municipal Code (Section 23).
C. The submittal and approval of a use permit for each phase of development as specified in the Antioch Municipal Code (Section 27).
D. As a requirement in all Specific Plan updates and in compliance with the City’s NPDES permit’s C.3 provision, private Green Infrastructure facilities shall be built as a result of the development of parcels. Green Infrastructure is intended to improve storm water quality, reduce flood risk, and provide other environmental and health benefits to the City of Antioch. In addition, as part of the Design Review process and related street frontage improvements, the City of Antioch shall identify and pursue opportunities for Green Infrastructure on private and public property.
All of the discretionary actions required as part of the Final Development Plan process shall include a finding of consistency with the East Lone Tree Specific Plan consistent with State law.
In addition to the submittal requirement identified in the Antioch Municipal Code, for Preliminary and Final Development Plan identified in the Antioch Municipal Code, the following information shall be submitted:
A cut and fill map showing proposed site grading with the Preliminary Development Plan.
Conceptual architecture of residential units, including range of unit sizes with the Final Development Plan.
Streetscape depicting typical mix of "garage forward" and "house forward" units with the Final Development Plan.
Photo montages or other visual analysis shall be required at the discretion of the Planning Commission with the Preliminary or Final Development Plan.
A phasing plan identifying the anticipated increments of development and the infrastructure proposed to be constructed as part of each phase.
CR/E Regional Retail/Employment and CE Employment Retail
Development of four parcels zoned CR/E and CE (APNs 053-072-003, 053-072- 025, 053-072-026, and 056-120-095) shall require a Use Permit and Design Review by B7
the Planning Commission and not the Planned Development process described above.
The Use Permit and Design Review process shall be as outlined in Articles 26 and 27 of the Antioch Municipal Code.
SECTION 9.6: Environmental Documentation
The project level Environmental Impact Report(EIR) and Supplemental EIR certified for this Specific Plan are is intended to provide adequate environmental documentation for future projects in the area. This project level EIR and Supplemental EIR are isat a sufficient level of detail to serve as appropriate environmental documentation for subsequent Entitlements, except as noted below. The following policies will guide the determination of need for additional environmental information or if a further environmental determination is needed.
A. An environmental determination will be required for Specific Plan amendments, which may result in a negative declaration or additional EIR work depending on the scope of the amendment as determined by the City.
B. If it is determined that a development proposal will have environmental impacts not originally addressed in the project level EIRor Supplemental EIR, then additional environmental study or mitigation may be required.
C. In cases where the certified EIR and Supplemental EIR for the Specific Plan calls for additional environmental information, this information will be provided as part of the application submittal process.
B8
5 Agenda Item #
STAFF REPORT TO CITY COUNCIL
DATE: Regular meeting of August 13, 2024
TO: Honorable Mayor and City Council
SUBMITTED BY: Michael Mellone, Police Lieutenant
APPROVED BY: Brian Addington, Interim Chief of Police
SUBJECT: Request to Overhire One Police Captain for the Remainder of Fiscal Year 2024/25
RECOMMENDED ACTION
It is recommended that the City Council adopt a resolution to authorize the overhire of one Police Captain position for the remainder of fiscal year 2024/25.
FISCAL IMPACT
The overhire of one Police Captain is expected to be covered with salary savings due to the tenure of the Interim Captain being part time and ending in December 2024.
DISCUSSION
The Police Department is currently funded for two Police Captain positions. Presently, both positions are filled. One position is occupied by a Captain who is on long-term leave and expected to retire early next year. Additionally, there is a part-time Interim Captain whose tenure will end in December 2024. The absence of permanent leadership in these roles has created a critical need for an additional Police Captain to improve stability and manage day-to-day operations effectively.
To address these challenges and ensure the department continues to operate efficiently, the following key areas highlight the necessity for over hiring an additional Police Captain:
Antioch City Council Report
August 13, 2024 Agenda Item#5 Page 2
Leadership Continuity:
The absence of a permanent Police Captain can significantly disrupt Police Department operations, particularly in managing complex investigations and overseeing administrative functions.
The overhire will allow for seamless transition and continuity of leadership, ensuring that strategic goals and operational mandates are met without interruption.
Increased Operational Demands:
The department is currently navigating multiple investigations by the California Department of Justice (CA DOJ) and the United States Department of Justice (US DOJ), as well as ongoing lawsuits.
An additional Police Captain will enhance the Police Department’s ability to manage these demands effectively, ensuring compliance and timely responses.
Strategic Oversight and Support:
The role of the Police Captain is critical in providing oversight, direction, and support, particularly during periods of high turnover and recruitment.
The additional position will enable more effective management and integration of new recruits, fostering a more robust and adaptable police force.
To ensure the Police Department continues to operate effectively and meets the demands of ongoing investigations and legal requirements, it is recommended that the City Council approve the overhire of one Police Captain position. This measure is vital to improving departmental stability, managing increased workloads, and providing adequate management of Police Department operations.
ATTACHMENTS
A. Resolution
ATTACHMENT A
RESOLUTION NO. 2024/xx
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ANTIOCH
APPROVING THE OVERHIRE OF ONE POLICE CAPTAIN POSITION FOR THE POLICE DEPARTMENT FOR THE REMAINDER OF FISCAL YEAR 2024/25 WHEREAS, the Police Department is currently funded for two Police Captain positions, with one position vacant and the other occupied by a Captain who is on leave and expected to retire early next year;
WHEREAS, an Interim Captain is currently serving but will leave the department in December 2024, creating a critical need for leadership continuity; and WHEREAS, the presence of two Police Captains is essential to provide adequate supervision, direction, and oversight for the Police Department.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Antioch hereby authorizes the overhire of one Police Captain position for the remainder of fiscal year 2024/25.
* * * * * * *
I HEREBY CERTIFY that the foregoing resolution was passed and adopted by the City Council of the City of Antioch at a regular meeting thereof, held on 13thof August 2024, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN
________________________________________
ELIZABETH HOUSEHOLDER,
CITY CLERK OF THE CITY OF ANTIOCH
6 Agenda Item #
STAFF REPORT TO CITY COUNCIL
DATE: Regular meeting of August 13, 2024
TO: Honorable Mayor and City Council
SUBMITTED BY:Michael Mellone, Police Lieutenant
APPROVED BY: Brian Addington, Interim Chief of Police
SUBJECT: Request to Add One Administrative Analyst I Position for the Police Department
RECOMMENDED ACTION
It is recommended that the City Council adopt a resolution to approve the addition of one Administrative Analyst I position to the Police Department and the necessary FY2024/25 General Fund budget adjustment.
FISCAL IMPACT
The estimated salary and benefit cost of an Administrative Analyst I position Step A to E is $189,426 to $222,718 and will require a General Fund budget amendment to fund the position.
DISCUSSION
The Police Department is currently experiencing a significant increase in administrative workload due to ongoing investigations by the California Department of Justice (CA DOJ) and the United States Department of Justice (US DOJ), as well as lawsuits related to recent departmental issues. The addition of an Administrative Analyst is crucial to address the following areas:
Enhanced Records Management
Increased Documentation Needs: The department is required to produce extensive records and documentation to comply with legal requests and inquiries from various investigative bodies.
Streamlining Processes: An Administrative Analyst will help streamline records management processes, ensuring timely and accurate responses to external demands and minimizing the risk of non-compliance.
Antioch City Council Report
August 13, 2024 Agenda Item#6 2
Support for Policy Review and Development
Ongoing Policy Updates: The department is undergoing extensive policy reviews and updates to align with best practices and legal requirements.
Analytical Expertise: An Administrative Analyst will provide the analytical expertise needed to evaluate current policies, recommend improvements, and assist in implementing necessary changes.
Assistance with Training Coordination
High Volume of Training: Due to staffing shortages and strategic realignments, the department is conducting a high volume of training sessions for new and existing staff.
Logistical Support: The Administrative Analyst will coordinate training schedules, manage logistics, and ensure that training programs are delivered effectively and efficiently.
Financial Management and Budgetary Oversight
Budget Monitoring: The position will involve monitoring departmental budgets and expenditures, providing critical insights to help optimize resource allocation.
Cost-Effective Solutions: By identifying cost-saving opportunities and enhancing financial planning, the Administrative Analyst will contribute to the department's fiscal responsibility.
Facilitating Communication and Collaboration
Interdepartmental Coordination: The Administrative Analyst will act as a liaison between various departments and external agencies, facilitating clear communication and collaboration.
Public Engagement: The position will also assist in managing community outreach and engagement efforts, ensuring that the department maintains a positive relationship with the public.
Support for Recruiting and Hiring Efforts
Addressing Staffing Crisis: The Police Department is actively engaged in significant recruiting and hiring efforts to end the ongoing staffing crisis. The Administrative Analyst will provide essential support in these endeavors.
Streamlining Recruitment Processes: By analyzing and optimizing recruitment processes, the Administrative Analyst will help ensure timely and effective hiring of qualified candidates.
Tracking Recruitment Metrics: The position will involve tracking recruitment metrics and outcomes, providing data-driven insights to improve hiring strategies and address staffing shortages more efficiently.
Antioch City Council Report
August 13, 2024 Agenda Item#6 3
The addition of an Administrative Analyst position is a strategic investment necessary for the Police Department to manage its increased workload, ensure compliance with legal and regulatory requirements, and support the effective functioning of departmental operations. It is recommended that the City Council approve the addition of this position, along with the necessary FY2024/25 General Fund budget adjustment, to sustain the department’s long-term operational efficiency and effectiveness.
ATTACHMENTS
A. Resolution
ATTACHMENT A
RESOLUTION NO. 2024/xx
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ANTIOCH
APPROVING THE ADDITION OF ONE ADMINISTRATIVE ANALYST I POSITION FOR THE POLICE DEPARTMENT AND THE NECESSARY FY2024/25 GENERAL
FUND BUDGET ADJUSTMENT
WHEREAS, the Police Department is experiencing an increased workload due to ongoing investigations by the California Department of Justice (CA DOJ) and United States Department of Justice (US DOJ), as well as lawsuits related to recent department scandals;
WHEREAS, the addition of one Administrative Analyst I position is necessary to facilitate the production of records and manage the increased administrative burden associated with these investigations and legal actions; WHEREAS, the Administrative Analyst I will provide critical support for the department’s significant recruiting and hiring efforts to address the ongoing staffing crisis, thereby enhancing the department's operational capacity and effectiveness; WHEREAS, the position will also support policy review and development, training coordination, budgetary oversight, and facilitate interdepartmental and public communication; and
WHEREAS, the General Fund budget adjustment will range from $189,426 to $222,718, depending on the step at which the position is hired.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Antioch hereby approves the addition of one Administrative Analyst I position in the Police Department and the necessary FY2024/25 General Fund budget adjustment. * * * * * * * I HEREBY CERTIFY that the foregoing resolution was passed and adopted by the City Council of the City of Antioch at a regular meeting thereof held on the 13th of August 2024, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
________________________________________
ELIZABETH HOUSEHOLDER,
CITY CLERK OF THE CITY OF ANTIOCH
7 Agenda Item #
STAFF REPORT TO THE CITY COUNCIL
DATE: Regular Meeting of August 13, 2024
TO: Honorable Mayor and Members of the City Council
SUBMITTED BY: Kwame P. Reed, Acting City Manager
SUBJECT: Approving the Disposition of Real Property located at 275 W Tregallas Rd, Antioch, CA (APN 071-050-047); Authorizing Acting City Manager to Execute the Purchase and Sale Agreement and Joint Escrow Instructions with Delta Learning Center; Approving Certain Related Actions; and Making CEQA Exempt Findings
RECOMMENDED ACTION
It is recommended that the City Council adopt a resolution:
1. approving the disposition of the real property located at 275 W Tregallas Road, Antioch, California (APN 071-050-047) (“Property”);
2. authorizing the Acting City Manager to execute the Purchase and Sale Agreement and Joint Escrow Instructions with Delta Learning Center for disposition of the Property with a purchase price in the amount of One Dollar ($1.00) with certain reservations of rights and deed use restrictions; and
3. making a finding that the disposition of the Property is found to be categorically exempt from environmental review under the California Environmental Quality Act (CEQA).
FISCAL IMPACT
This action results in $1.00 revenue for the amount of the purchase price.
DISCUSSION
The Property is located at 275 W Tregallas Road, Antioch, CA and consists of approximately 18,600 square feet (0.427 acres) of land. In 1988, the City, as Lessor, and the Delta Learning Center (“DLC”), as Lessee, entered into that certain Ground Lease Agreement whereby DLC leased the land and subsequently made certain improvements to the Property, including a one-story building, a parking lot and related improvements for the purpose of operating a center for serving the educational needs of and providing academic guidance to children and adults in the community (“Current Use”). The
Antioch City Council Report
August 13. 2024 Agenda Item #7 2
disposition of this Property is for the land only and specifically excludes the improvements made by DLC.
The disposition of this property at the purchase price of $1.00 is subject to certain covenants and deed restrictions pertaining to the use of the Property, namely DLC must continue the Current Use of the Property and DLC covenants for itself and its successors and assigns that if DLC desires to change the use or sell the Property coupled with a change of use, DLC, its successors and assigns, must pay the City the appropriate Consideration (as defined below) for the City to remove the deed use restriction by quitclaim deed.
The City, as the Grantor, reserves and retains the right to remove the deed use restrictions imposed upon the title to this Property. Grantee, its successors and assign, shall have a right to change the Current Use of the Property provided the City of Antioch is paid the then appraised value for the Property and pursuant to the procedures provided in the Grant Deed before the Current Use is changed or the Property sale coupled with a change of the Current Use were to occur. The City and Delta Learning Center have signed a Notice of Intent pertaining to the purchase and sale of the Property whereby the parties tentatively agreed on the purchase price and the deed restriction pertaining to the Current Use which is subject to approval of the City Council.
The sale of this Property is for a common benefit of serving the public in meeting the educational needs of the residents and members of this community. Below provides a description of Delta Learning Center’s mission and demonstrates its commitment to the community.
Delta Learning Center (“DLC”) and the Board of Directors (“Board”) are committed to incorporating the values
operations of its organization. With a diverse Board and staff, Delta Learning Center will have varied perspectives and better ideas to help solve the complex educational issues within the ever increasingly diverse clientele and community. The Board and staff are committed to helping every student meet their full academic and social potential and will assist in addressing the educational achievement gap by addressing potential barriers to education, which might include receiving quality tutoring at an affordable cost.
Since 1976, the DLC has been providing individualized one-on-one tutoring to thousands of students in East Contra Costa County to students of all ages and subject areas. Their program population covers a wide range of students from TK to college. However, most of their population is elementary school students with needs in English/ Language Arts (ELA), and high school math. DLC provides specialized tutoring to students who have an individual learning plan and may have special needs or learning disabilities.
At Delta Learning Center, they aim to provide a more positive and optimistic educational future. Approximately 36% of their students are low income with learning disabilities and the demographics are: 27% African American, 24% Latino, 3% White, and 10% Asian.
DLC’s tutoring scholarship program allows them to reach out to families in this community that would otherwise not be able to afford tutoring services. Through this program DLC Antioch City Council Report
August 13. 2024 Agenda Item #7 3
can expand its effectiveness in the community and serve a more economically diverse community.
The requirements of the Surplus Lands Act (Government Code Section 54220 et seq.) were satisfied prior to this proposed sale. On January 13, 2023, the City Council for the City of Antioch adopted Resolution No. 2023/04 identifying a number of city-owned properties as surplus land and amending its Surplus Property List in accordance with California Government Code Sections 54220-54234. The property to be sold to the Delta Learning Center was on this list. The City’s Notice of Availability/Offer to Sell Surplus Property letter dated February 2, 2023 for this Property was submitted to the California Department of Housing and Community Development. The City did not receive any other offers to purchase this Property in response to its NOA letter before April 2, 2023 (the sixtieth (60th) day following the NOA letter).
The disposition of the Property has been reviewed and determined to be exempt from the California Environmental Quality Act pursuant to State CEQA Guidelines Sections 15312, Surplus Government Property Sales and 15061(b)(3), Common Sense Exemption. The proposed disposition is merely for the sale of the fee interest in real property that has been deemed as surplus property, the property does not have significant value for wildlife habitat or other environmental purposes, the property is a unique shape, the Property will continue to be used in the same manner as it is currently being used and it can be seen with certainty that there is no possibility that the activity in questions will have a significant effect on the environment.
ATTACHMENTS
A. Resolution
B. Exhibit A to Resolution - Depiction of Property
C. Exhibit B to Resolution - Purchase and Sale Agreement and Joint Escrow Instructions D. Letter of Intent
1 RESOLUTION NO. 2024/XXX
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ANTIOCH APPROVING THE DISPOSITION OF REAL PROPERTY LOCATED AT 275 W. TREGALLAS ROAD, ANTIOCH, CALIFORNIA (APN 071-050-047); AUTHORIZING ACTING CITY
MANAGER TO EXECUTE THE PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS WITH DELTA LEARNING CENTER; APPROVING CERTAIN RELATED ACTIONS; AND MAKING CEQA EXEMPT FINDINGS WHEREAS, pursuant to California Government Code Section 37350, the City of Antioch (“City”) may dispose of real property, by a negotiated agreement with a prospective buyer for the sale of the real property, and dispose of it for the common benefit;
WHEREAS, the City of Antioch, is the owner of that certain real property located at 275 W Tregallas Road, Antioch, California, consisting of approximately 0.427 acres of land (18,600 sq. ft.), as depicted in the attached Exhibit A (the “Property”); WHEREAS, on March 22, 1988, the City and the Delta Learning Center (“DLC”) entered into that certain Lease Agreement (“Lease”) whereby the City ground leased the Property to DLC and granted the right to make certain improvements on and to the Property, for the public benefit and purpose of DLC operating a learning center for serving the educational needs of and providing academic guidance to children and adults in the community;
WHEREAS, DLC has constructed certain improvements on the Property at its own costs, including a one-story building, parking lot and related improvements (“Improvements”), and per the terms of the Lease, DLC would remain the owner of the Improvements, except in the event that DLC abandoned or vacated the Property for a period of one year or more;
WHEREAS, the City desires to sell the Property, which is the land only and specifically excludes the Improvements owned by DLC, to the DLC and the DLC desires to purchase the Property from the City pursuant to the negotiated terms and conditions of that certain Purchase and Sale Agreement and Joint Escrow Instructions between the City and DLC, and upon disposing of the Property, DLC intends to continue to use the Property for the common benefit and purpose of operating a center for serving the educational needs of and providing academic guidance to children and adults in the community (“Current Use”);
WHEREAS, as a material inducement for the City to sell the Property for the nominal consideration of One Dollar ($1.00), DLC must agree to purchase the Property subject to certain deed use restrictions and covenants that DLC must continue to use the Property for the purpose of operating a center for serving the educational needs of and providing academic guidance to children and adults in the community and in the event that DLC, its successors or assigns, desire to change the Current Use or sell and change the Current Use of the Property, DLC, its successors or assigns, must pay the 2 City of Antioch the then appraised value of the Property to the City on or before the change of Current Use or Sale with Change of Current Use would occur in exchange for release of the deed use restrictions;
WHEREAS, the proposed disposition of the Property is for the common benefit of the City, DLC, the residents of the City and members of the community at large and are in accordance with the public purposes set forth in applicable law; WHEREAS, the City satisfied the requirements of the Surplus Lands Act pertaining to the disposition of the Property by adopting Resolution No. 2023/04 identifying a number of city owned properties as surplus land and amending its Surplus Property List in accordance with California Government Code Sections 54220-54234, which included this Property, and by submitting its Notice of Availability/Offer to Sell Surplus Property letter dated February 2, 2023 for this Property to the California Department of Housing and Community Development;
WHEREAS, the City did not receive any other offers in response to its Notice of Availability Letter before the sixtieth day (April 2, 2023) to purchase the Property; WHEREAS, the disposition of the Property is categorically exempt from environmental review under the California Environmental Quality Act (“CEQA”) based on the findings further set forth in this Resolution;
WHEREAS, the City Council has reviewed this Resolution and now desires to approve the disposition of the Property and the Purchase and Sale Agreement and Joint Escrow Instructions, attached to this Resolution as Exhibit B, to dispose of the Property for the common benefit and to authorize certain related actions, based on the findings and justifications contained in this Resolution.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Antioch does hereby find, determine, and order as follows:
SECTION 1: The above recitals are true and correct and are a substantive part of this Resolution and findings of the City Council.
SECTION 2: The City determines that this Resolution and the actions authorized hereunder are categorically exempt from environmental review pursuant to State CEQA Guidelines Section 15312, Surplus Government Property Sales; and Section 15061(b)(3), General Rule Exemption; which categorical exemptions applies to the sale of surplus real property because the proposed disposition is merely selling the fee interest in government surplus real property, the Property does not have significant values for wildlife habitat or other environmental purposes, the Property is a unique shape, the Property will continue to be used in the same manner as it is currently being used, and it can be seen with certainty that there is no possibility that the activity in question will have a significant effect on the environment.
3 SECTION 3: The disposition of the Property for $1.00 subject to certain covenants and deed restrictions pertaining to use and reservations of rights in favor of the City and the Purchase and Sale Agreement and Joint Escrow Instructions between the City and Delta Learning Center, attached hereto as Exhibit B, for the purchase and sale of the Property to the Delta Learning Center for the common benefit and purposes is hereby approved and may be executed in substantially the same form as the attached Exhibit B, subject to changes as may be approved by the City Attorney.
SECTION 4: The Acting City Manager is authorized and directed to execute the Purchase and Sale Agreement and Joint Escrow Instructions in a form approved by the City Attorney and to take such other actions and execute such other documents as are necessary to effectuate the intent of this Resolution.
SECTION 5: The City Council directs Staff to file a Notice of Exemption with the County Clerk for the County of Contra Costa within five (5) working days of the date of this Resolution.
SECTION 6: If any section, subsection, paragraph, sentence, clause, or phrase of this Resolution is declared by a court of competent jurisdiction to be unconstitutional or otherwise invalid, such decision shall not affect the validity of the remaining portions of this Resolution.
SECTION 7: This Resolution shall become effective immediately upon adoption and the City Clerk shall certify to the adoption of this Resolution. * * * * * * * * *
I HEREBY CERTIFY that the foregoing resolution was passed and adopted by the City Council of the City of Antioch at a regular meeting thereof, held on the 13th day of August 2024, by the following vote: AYES: NOES: ABSTAIN: ABSENT:
_____________________________________
ELIZABETH HOUSEHOLDER
CITY CLERK OF THE CITY OF ANTIOCH
EXHIBIT A
DEPICTION OF PROPERTY
ATTACHMENT B
EXHIBIT B
PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTION 82595.00008\42522019.1
ATTACHMENT C
EXHIBIT B
1 PURCHASE AND SALE AGREEMENT
AND JOINT ESCROW INSTRUCTIONS
THIS PURCHASE AND SALE AGREEMENT AND JOINT ESCROW
INSTRUCTIONS (“Agreement”) is made and entered into as of ______________, 2024 for reference purposes only, by and between the City of Antioch, a California municipal corporation (“Seller”), and Delta Learning Center, a California nonprofit public benefit corporation (“Buyer”). The date upon which both Buyer and Seller have executed this Agreement and delivered the same to one another, shall hereinafter be referred to as the “Effective Date”.
RECITALS
A. Seller is the owner of certain real property located in the City of Antioch, County of Contra Costa, State of California, consisting of approximately 18,600 square feet (.427 acre) parcel of land, commonly known as 275 W Tregallas Road, Antioch, California, 94509, with Assessor’s Parcel Number 071-050-047, which is more particularly legally described in Exhibit A (“Land”), and related appurtenances.
B. Buyer has made certain improvements to the Land, at Buyer’s sole cost, including a one-story commercial building located at the above referenced address, (“Building”), containing together with storage buildings, parking lot and other related improvements (collectively, the “Improvements”), during the time after Buyer had leased the Property from Seller pursuant to that certain Lease Agreement dated March 22, 1988 (“Lease”). Pursuant to the Lease, Buyer is the owner of those certain Improvements unless Buyer abandons or vacates the Property for a year or more.
C. Buyer has used and operated on the Property a learning center for serving the educational needs of and providing academic guidance to children and adults in East Contra Costa County.
D. The purchase and sale of the Property is in the vital and best interests and welfare of the public and serves a common benefit and purpose by conveying the Land to Buyer with a deed use restriction to ensure that the Property continues to be used as a center for serving the educational needs of and providing academic guidance to children and adults in the community.
E. Seller desires to sell and Buyer desires to purchase the Property, pursuant to the terms and conditions in this Agreement, including, among other things, that it is material to the Seller agreeing to the disposition of the Property for the Purchase Price (as described below) amount by the Buyer that the Buyer covenants, for itself and its successors and assigns, and agrees that the conveyance is subject to certain deed restrictions pertaining to use, as more specifically described below.
IN CONSIDERATION of the respective agreements hereinafter set forth, for good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, Seller and Buyer hereby agree as follows:
82595.00008\42522019.1
2 1. Purchase and Sale of Property. The above recitals are hereby incorporated as a part of this Agreement. Seller hereby agrees to sell “AS-IS” and convey to Buyer, and Buyer hereby agrees to purchase from Seller, subject to the terms and conditions set forth herein, the following (collectively, the “Property”):
(a) Land. As described in Recital A.
(b) Appurtenances. All rights, privileges, easements of record or appurtenances to or affecting the Land (collectively, the “Appurtenances”).
The Land and the Appurtenances shall collectively be referred to in this Agreement as the Property. The Property expressly excludes from the purchase and sale of the Property the following: 1) the Improvements that were made and are presently owned by the Buyer, 2) any and all tangible personal property owned by Buyer; and 3) any and all intangible property owned by Buyer, that is located on or in or is used in connection with the use or operation of any of the Property.
2. Purchase Price. As a material inducement to Seller agreeing to selling the Property for the Purchase Price stated herein this Section 2, the Buyer covenants and agrees, for itself and its successors and assigns, to purchase the Property subject to a reservation of rights in favor of the Seller and certain deed restrictions requiring that Buyer, its successors and assigns, to continue to use the entire Property as a learning center for serving the educational needs of and providing academic guidance to children and adults in the community; to take all necessary actions to ensure that the entire Property continues to be used in the same manner and use as it is currently being used; and in the event that the Buyer, any of its successors or assigns, desires to change the use of the Property or to sell the Property coupled with an intention to change the use of the Property (collectively, the “Use Restrictions”), Buyer agrees and covenants on behalf of the Buyer, its successors and assigns, to pay to the City of Antioch the then appraised value for the Property as consideration for the City’s removal of such Use Restrictions prior to any change of use or disposition and change of use, subject to the procedure provided in the Deed and pursuant to the terms, conditions and covenants described in Section 11 herein this Agreement. (a) The purchase price for the Property (“Purchase Price”) shall be One and No/100 Dollar ($1.00).
(b) The Purchase Price shall be paid as follows:
(i) Within three (3) days following the Effective Date, Seller and Buyer shall open an escrow in connection herewith (“Escrow”) at [NAME} Title company [INSERT ESCROW OFFICER NAME AND CONTACT INFORMATION] (“Escrow Holder”), and Buyer shall deposit into Escrow the Purchase Price amount of One and No/100 Dollars ($1.00) (“Deposit”) in cash or other immediately available funds. (ii) The Deposit shall be held by Escrow Holder in an interest-bearing account for the benefit of Buyer in accordance with this Agreement. 82595.00008\42522019.1
3 (iii) If the Closing (as defined herein) as contemplated hereunder should occur, then the Deposit will be paid by the Escrow Holder to Seller at the Closing, and the Deposit will be credited against the Purchase Price payable by Buyer to Seller at the Closing. (iv) If this Agreement is not terminated prior to the expiration of the Feasibility Period, the Deposit shall be nonrefundable to Buyer, except that if this Agreement is terminated prior to the Closing due to Seller's default or the failure of any of the Conditions Precedent (as defined herein) or as expressly set forth herein, then the Deposit shall be returned to Buyer. The Deposit shall be applied to the Purchase Price at the Closing. (v) On or before the Closing, if this Agreement has not been earlier terminated, Buyer shall deposit into Escrow cash or other immediately available funds in the amount of the balance of the Purchase Price and sufficient funds to cover Buyer’s costs and fees (the “Closing Amount”). The Closing Amount shall be applied towards the Purchase Price at the Closing.
3. Title to the Property. At the Closing, Seller shall cause to be conveyed to Buyer fee simple title to the Property by duly executed and acknowledged grant deed substantially in the form attached hereto as Exhibit B and incorporated herein by this reference (the “Deed”).
As used in this Agreement, Closing (the “Closing”) shall be deemed to occur upon the recording of the Deed. Evidence of delivery of fee simple title shall be the issuance by Escrow Holder to Buyer of an ALTA standard coverage owner's policy of title insurance in the amount of the Purchase Price, insuring fee simple title to the Property in Buyer, subject only to such exceptions as Buyer shall have approved as provided below (the “Title Policy”). The Title Policy shall provide full coverage against mechanics' and materialmen's liens and shall contain such special endorsements as Buyer may reasonably require, including, without limitation, any endorsements required as a condition to Buyer's approval of any title exceptions (the “Endorsements”).
Within five (5) business days following the opening of Escrow, Seller shall request and order the issuance of a preliminary title report with respect to the Property, together with copies of all underlying documents referenced therein (collectively, the “Preliminary Report”), to be prepared by the Escrow Holder and delivered to Buyer. No later than fifteen (15) business days after receipt of the Preliminary Report, Buyer shall give written notice to Seller of any items contained in the Preliminary Report which Buyer disapproves (“Buyer's Disapproval Notice”).
Failure of Buyer to notify Seller of Buyer's disapproval of all or any item on the Preliminary Report shall be deemed to be an approval by Buyer of such item(s). In any event, Seller covenants to remove as exceptions to title prior to the Closing, only any mortgages, deeds of trust, and other monetary encumbrances that were taken out, created or caused by Seller (collectively, “Disapproved Seller Liens”) that may be shown on the Preliminary Report except for real property taxes, special assessment liens and any tax assessments not delinquent or not yet due. Seller shall not be liable or responsible whatsoever for any mortgages, deeds of trust, and other monetary encumbrances that were taken out, created or caused by the Buyer during any time Buyer, as Lessee under or since the Lease commencement, or related to Buyer’s leasehold interest in the Property (“Buyer Liens”), including without limitation, payment, satisfaction or removal of Buyer Liens. Buyer is solely responsible for the Buyer Liens. Buyer shall indemnify, defend and hold harmless, the Seller, its officers, officials, City Council, employees, agents, representatives and volunteers, from, all claims, demands, suits, actions, damages, obligations, liabilities, losses, costs and expenses, including but not limited to attorneys' fees and 82595.00008\42522019.1
4 court costs, as a result of or related to the acts or omissions of Buyer related to its use, occupation or leasehold interest in the Property or arising out of this Agreement. Seller shall notify Buyer no later than ten (10) business days after receipt of Buyer's Disapproval Notice whether it elects to remove such other items disapproved by Buyer. If by the expiration of the Feasibility Period, there remain exceptions to title which have not been modified to the satisfaction of Buyer and/or removed prior to the Closing Date, then Buyer may elect to do either of the following by the expiration of the Feasibility Period: (i) accept such exceptions and proceed to take title to the Property subject to such exception(s); or (ii) this Agreement may be terminated in accordance with Section 4(b). In the event Buyer elects to terminate this Agreement pursuant to this Section 3, neither party shall have any further obligations to the other hereunder (except under provisions of this Agreement which specifically state that they survive termination).
4. Feasibility.
(a) Buyer acknowledges and agrees that Buyer is presently in possession of and has had access and use to the Property since 1988. Due to Buyer’s long term occupation of the Property, Buyer may choose to waive the Feasibility Period by giving express notice of such waiver to Seller and Escrow Holder within five (5) days of the Effective Date of this Agreement.
From and after the Effective Date until the Closing or earlier termination of this Agreement and for purposes of conducting such physical inspections and investigations of the Property as Buyer deems necessary (the “Inspections”), Buyer may conduct the Inspection. Seller's representative may be present with Buyer or Buyer's representative during such Inspections to the Property.
The Inspections and investigations may include, without limitation, (i) a review of existing zoning, entitlement, planning or similar issues applicable to the Property; (ii) a review of the physical condition of the Property and the systems serving the Property; (iii) a review of the environmental condition of the Property, including a Phase I environmental site assessment and any proposal regarding a Phase II environmental site assessment. Buyer agrees not to conduct or cause to be conducted a Phase II environmental site assessment without the prior written consent of Seller. Buyer's Inspections and investigations shall be governed by Section 14. (b) As used herein, the term (“Feasibility Period”) shall refer to a period of time to expire at 5:00 p.m., California time, on the thirtieth (30th) calendar day following the Effective Date; provided, however, that if the 30th day is a Saturday, Sunday or holiday on which banking institutions are closed in the State of California, then the Feasibility Period shall expire on the following business day. Buyer may elect, by written notice to Seller at any time prior to the expiration of the Feasibility Period, to terminate this Agreement, which election shall be in Buyer's sole and absolute discretion. If Buyer desires to terminate this Agreement pursuant to this Section 4(b) then before the expiration of the Feasibility Period, Buyer shall deliver written notice to Seller of Buyer's election to terminate (the “Buyer's Notice to Terminate”). If Buyer desires to proceed with the purchase of the Property subject to the remaining conditions set forth in this Agreement, then on or before the expiration of the Feasibility Period, Buyer shall deliver written notice to Seller of such election to proceed (the “Buyer's Notice to Proceed”), electing to waive Buyer's right of termination pursuant to this Section 4(b) and proceed with the Closing subject to the remaining conditions set forth in this Agreement. If Buyer fails to deliver either Buyer's Notice to Terminate or Buyer's Notice to Proceed to Seller prior to the expiration of the Feasibility Period, then Buyer shall be deemed to have elected to proceed with this Agreement 82595.00008\42522019.1
5 and the Closing. In the event of the termination of this Agreement pursuant to this Section 4(b), neither party shall have any further obligations to the other hereunder (except under provisions of this Agreement which specifically state that they survive termination). (c) In the event Buyer elects to terminate this Agreement pursuant to Section 4(b), or if Closing does not occur for any reason, Buyer shall return all Seller's Deliveries to Seller. Buyer further agrees that prior to Closing, Buyer shall provide Seller with copies of all studies, reports, appraisals and other materials commissioned by or prepared for Buyer relating to or regarding the Property (“Buyer's Reports”), at no cost to Seller.
5. Seller's Deliveries. Since Buyer has been in possession of the Property since 1988, Buyer acknowledges that Seller does not have in its possession, under its control or accessible to Seller, any materials regarding the Property to deliver to Buyer. Notwithstanding the foregoing, Seller shall deliver or cause to be delivered a Natural Hazards Disclosure Report to Buyer (“Seller's Deliveries”). Seller makes no representation whatsoever about the content, accuracy, completeness or value of any of Seller's Deliveries. All Seller's Deliveries will be provided to Buyer without warranty from Seller regarding the accuracy or completeness of the information contained therein, and such documents may or may not be assignable to Buyer.
Buyer assumes all risk of reviewing and understanding any and all information contained in Seller's Deliveries.
6. Conditions to Seller's Obligations. Seller's obligations hereunder, including, but not limited to, its obligation to consummate the purchase transaction provided for herein, are subject to the satisfaction of each of the following conditions, each of which is for the sole benefit of Seller and may be waived by Seller in writing in Seller’s sole and absolute discretion:
(a) Buyer shall not be in default under this Agreement. (b) Each representation and warranty made in this Agreement by Buyer shall be true and correct in all material respects at the time as of which the same is made and as of the Close of Escrow.
7. Conditions Precedent to Closing. The following are conditions precedent to Buyer's obligation to purchase the Property (the “Conditions Precedent”). The Conditions Precedent are intended solely for the benefit of Buyer and may be waived only by Buyer in writing in Buyer’s sole discretion. In the event any Condition Precedent is not satisfied, Buyer may, in its sole discretion, terminate this Agreement, subject to the provisions of Section 8. (a) Buyer's approval of the Property pursuant to the terms in Section 4(b) in this Agreement.
(b) Escrow Holder shall be unconditionally committed to issue the Title Policy to Buyer upon the Closing in the form and with such exceptions and endorsements as have been approved, or are deemed approved, by Buyer as provided in Section 3 above. (c) Seller shall have complied with all of Seller's duties and obligations contained in this Agreement and all of Seller's representations and warranties contained in or 82595.00008\42522019.1
6 made pursuant to this Agreement shall have been true and correct when made and shall be true and correct as of the Closing Date.
8. Intentionally Deleted.
9. Escrow; Closing, Prorations.
(a) Upon mutual execution of this Agreement, the parties hereto shall deposit an executed counterpart of this Agreement with Escrow Holder and this Agreement shall serve as instructions to Escrow Holder for consummation of the purchase contemplated hereby. Seller and Buyer agree to execute such supplemental Escrow instructions as may be appropriate to enable Escrow Holder to comply with the terms of this Agreement, provided such supplemental Escrow instructions are not in conflict with this Agreement as it may be amended in writing from time to time. In the event of any conflict between the provisions of this Agreement and any supplementary Escrow instructions signed by Buyer and Seller, the terms of this Agreement shall control.
(b) The Closing shall take place (the “Closing Date”) on or before the date that is fifteen (15) days following the later date of: 1) expiration of the Feasibility Period or as may be extended as provided below or, forty (40) days after the date Escrow was opened in the event the Buyer waives the Feasibility Period.
(c) At or before the Closing, Seller shall deliver to Escrow Holder or Buyer the following:
(i) the duly executed and acknowledged Deed for the Property; (ii) a duly executed affidavit that Seller is not a “foreign person” within the meaning of Section 1445(f)(3) of the Internal Revenue Code of 1986 in the form attached as Exhibit C and incorporated herein by this reference together with a duly executed non-foreign person affidavit and evidence that Seller is exempt from the withholding obligations imposed by California Revenue and Taxation Code Sections 18805, 18815, and 26131; (iii) evidence reasonably acceptable to Escrow Holder that the documents delivered by Seller have been duly authorized and executed on behalf of Seller and constitute valid and binding obligations of Seller;
(iv) any other documents which the Escrow Holder may reasonably require from Seller in order to close Escrow which do not increase Seller's liability or obligations hereunder;
(v) a closing statement in form and content satisfactory to Buyer and Seller (the “Closing Statement”) duly executed by Seller; and (vi) any other instruments, records or correspondence called for hereunder which have not previously been delivered.
82595.00008\42522019.1
7 (d) At or before the Closing, Buyer shall deliver to Escrow Holder or Seller the following:
(i) the Closing Statement, duly executed by Buyer;
(ii) the Closing Amount, including funds sufficient for the closing costs, fees and title insurance as further described below; and (iii) evidence reasonably acceptable to Escrow Holder that the documents delivered by Buyer have been duly authorized and executed on behalf of Buyer and constitute valid and binding obligations of Buyer.
(e) Seller and Buyer shall each deposit such other instruments as are reasonably required by Escrow Holder or otherwise required to close the Escrow and consummate the purchase of the Property in accordance with the terms hereof. (f) The following are to be paid by Buyer or Seller or apportioned as of the Closing Date, as follows:
(i) General real property taxes for the year in which Closing occurs together with assessments, property operating expenses, utilities and other recurring costs relating to the Property shall be paid by Buyer as of the Closing Date. (ii) Costs and expenses of Escrow incurred in this transaction shall be paid as follows:
(1) Buyer shall pay all sales, use and documentary transfer taxes if any that may be due(except as provided in Subparagraph (ii)(4) below); (2) Buyer shall pay the premium for a standard ALTA
coverage owner's policy of title insurance; or Buyer shall pay the premium for any extended ALTA coverage if desired by Buyer;
(3) Buyer shall pay all the Escrow fees, recording fees and related expenses;
(4) Buyer shall pay any city or county transfer taxes due; (5) all other costs of escrow shall be paid by Buyer.
(iii) The provisions of this Subparagraph (f) shall survive the Closing.
10. Representations, Warranties and Covenants of Seller. As of the date hereof and again as of Closing, Seller represent and warrants to Buyer as follows:
(a) Seller is duly organized, validly existing and in good standing under the laws of the State of California. This Agreement and all documents executed by Seller which are to be delivered to Buyer at the Closing are and at the time of Closing will be duly authorized, 82595.00008\42522019.1
8 executed and delivered by Seller, are and at the time of Closing will be legal, valid and binding obligations of Seller enforceable against Seller in accordance with their respective terms. Seller has obtained all necessary authorizations, approvals and consents to the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby. (b) No Action. No attachments, execution proceedings, assignments for the benefit of creditors, insolvency, bankruptcy, reorganization or other proceedings are pending against Seller, nor are any such proceedings contemplated by Seller; (c) No Representations as to Property. There are no representations, agreements, arrangements, or circumstances, oral or written, between the parties relating to the subject matter contained in this Agreement that are not fully expressed in the Agreement, and Seller has not made and does not make any representation or warranty concerning any matter or thing affecting or relating to the Property, including but not limited to its fitness for a particular use, its physical condition or any other matter; and
(d) Sale “AS-IS”. Subject to Seller's representations and warranties contained herein, Buyer's election to purchase the Property will be based upon and will constitute evidence of Buyer's independent investigation of the Property, its use, development potential and suitability for Buyer's intended use, including (without limitation) the following: the feasibility of developing the Property for the purposes intended by Buyer and the conditions of approval for any subdivision map; the size and dimensions of the Property; the availability, cost and adequacy of water, sewerage and any utilities serving or required to serve the Property; the presence and adequacy of current or required infrastructure or other improvements on, near or affecting the Property; any surface, soil, subsoil, fill or other physical conditions of or affecting the Property, such as climate, geological, drainage, air, water or mineral conditions; the condition of title to the Property; the existence of governmental laws, statutes, rules, regulations, ordinances, limitations, restrictions or requirements concerning the use, density, location or suitability of the Property for any existing or proposed development thereof including but not limited to zoning, building, subdivision, environmental or other such regulations; the necessity or availability of any general or specific plan amendments, rezoning, zoning variances, conditional use permits, building permits, environmental impact reports, parcel or subdivision maps and public reports, requirements of any improvement agreements; requirements of the California Subdivision Map Act, and any other governmental permits, approvals or acts (collectively “Permits”); the necessity or existence of any dedications, taxes, fees, charges, costs or assessments which may be imposed in connection with any governmental regulations or the obtaining of any required Permits; the presence of endangered plant or animal species upon the Property; and all of the matters concerning the condition, use, development or sale of the Property. Seller will not be liable for any loss, damage, injury or claim to any person or property arising from or caused by the development of the Property by Buyer.
Except with respect to a default by Seller hereunder (including a breach of Seller's warranties and representations), Buyer at the Close of Escrow expressly waives its rights granted under California Civil Code Section 1542, which provides as follows:
“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
THAT THE CREDITOR OR RELEASING PARTY DOES NOT
82595.00008\42522019.1
9 KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT
THE TIME OF EXECUTING THE RELEASE AND THAT, IF
KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY
AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR
OR RELEASED PARTY.”
Buyer's Initials: ________
11. Representations, Warranties, Essential Conditions and Covenants of Buyer.
Buyer hereby represents and warrants to Seller and covenants for itself and its successors and assigns as follows:
(a) Buyer is a nonprofit public benefit corporation duly organized, validly existing and in good standing under the laws of California and qualified to do business in California. This Agreement and all documents executed by Buyer which are to be delivered to Seller at the Closing are and at the time of Closing will be duly authorized, executed and delivered by Buyer, are and at the time of Closing will be legal, valid and binding obligations of Buyer enforceable against Buyer in accordance with their respective terms, and do not and at the time of Closing will not violate any provision of any agreement or judicial order to which Buyer is subject. Buyer has obtained all necessary authorizations, approvals and consents to the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby.
(b) Buyer warrants that Buyer is a sophisticated owner and buyer of real property, familiar and experienced with requirements for the development of real property.
Buyer has examined the Property or will have done so by Closing, is or will be familiar with its physical condition, and accepts the Property in an “AS-IS” condition. (c) Buyer has conducted or will conduct an independent investigation with respect to zoning and subdivision laws, ordinances, resolutions, and regulations of all governmental authorities having jurisdiction over the Property, and the use and improvement of the Property and is, or at Closing will be, satisfied with the results of such investigation. (d) The Property is being sold “AS-IS” and with all faults. (e) As a material inducement and an essential condition for the Seller to sell and convey the Property for the Purchase Price stated herein Section 2, the Buyer covenants and agrees, for itself and its successors and assigns, as follows:
(i) that the purchase of the Property is subject to certain deed restrictions which will run with the land requiring that Buyer, its successors and assigns, to continue to use the entire Property to operate a center for serving the educational needs of and providing academic guidance to children and adults in the community; and (ii) covenants to continue to use the entire Property in the same manner and use as it is currently being used and to include the same deed restrictions pertaining to the aforementioned use in any transfers, leases or disposition of the Property to any successors and assigns; and
82595.00008\42522019.1
10 (iii) in the event that the Buyer, or any of its successors or assigns, desires to change the use of the Property or to sell the Property coupled with a change of the use of the Property, Buyer agrees and covenants, on behalf of the Buyer, its successors and assigns, to pay to the City of Antioch the then appraised value for the Property as consideration for the City’s removal of such deed use restriction prior to any change of use or disposition and change of use, subject to the procedure provided in the Deed; and (f) The Deed must contain the terms, conditions, covenants and restrictions provided in this Purchase and Sale Agreement and recorded on the Closing Date for the close of escrow for the purchase and sale of this Property, which give constructive and public notice that Buyer, as Grantee, was able to purchase the Property for a nominal consideration of $1.00 in return for such conveyance being subject to the aforementioned covenants and deed restriction pertaining to use the Property. In addition, the City reserves the right to remove the deed use restrictions provided the City is paid the applicable Consideration described in Section 2 of this Agreement and pursuant to the terms and conditions and procedures described in the Deed attached as Exhibit B to this Agreement.
12. Environmental Matters/Release. As used in this Agreement, “Hazardous Materials” includes petroleum, asbestos, radioactive materials or substances defined as '“hazardous substances,” “hazardous materials” or “toxic substances” (or words of similar import) in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. Section 9601, et seq.), the Hazardous Materials Transportation Act (49 U.S.C. Section 1801, et seq.), the Resource Conservation and Recovery Act (42 U.S.C.
Section 6901, et seq.), and under the applicable laws of California. Buyer must rely on its own investigation and not on any representation by Seller regarding Hazardous Materials. Buyer shall rely solely upon its own investigation and inspection of the Property and the improvements thereon and upon the aid and advice of Buyer's independent expert(s) in purchasing the Property, and shall take title to the Property without any warranty, express or implied, by Seller or any employee or agent of Seller. Seller makes no representations regarding Hazardous Materials in, on or under the Property. Seller's knowledge and disclosures regarding Hazardous Materials are limited to the contents of Seller's Deliveries.
Accordingly, Buyer hereby expressly waives and relinquishes any and all rights and remedies Buyer may now or hereafter have against Seller, whether known or unknown, with respect to any past present, or future presence of Hazardous Materials on, under or about the Property or with respect to any past, present or future violations of any rules, regulations or laws, now or hereinafter enacted, regulating or governing use, handling, storage or disposable of Hazardous Materials, including, without limitation (i) any and all remedies Buyer may now or hereafter have under the Comprehensive Environmental Response Compensation and Liability Act of 1980 (“CERCLA”), as amended, and any similar law, rule or regulation, (ii) any and all rights Buyer may now or hereafter have against Seller under the Carpenter-Presley-Tanner Hazardous Substance Account Act (California Health and Safety Code, Section 25300 et seq.), as amended and any similar law, rule or regulation, and (iii) any and all claims, whether known or unknown, now or hereafter existing, with respect to the Property under Section 107 of CERCLA (42 U.S. C.A. § 9607).
82595.00008\42522019.1
11 BUYER HEREBY ACKNOWLEDGES THAT IT HAS READ AND IS
FAMILIAR WITH THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1542 (“SECTION 1542”), WHICH IS SET FORTH BELOW
“A GENERAL RELEASE DOES NOT EXTEND TO
CLAIMS THAT THE CREDITOR OR RELEASING
PARTY DOES NOT KNOW OR SUSPECT TO EXIST
IN HIS OR HER FAVOR AT THE TIME OF
EXECUTING THE RELEASE AND THAT, IF
KNOWN BY HIM OR HER, WOULD HAVE
MATERIALLY AFFECTED HIS OR HER
SETTLEMENT WITH THE DEBTOR OR RELEASED
PARTY.”
BY INITIALING BELOW, BUYER HEREBY WAIVES THE
PROVISIONS OF SECTION 1542 SOLELY IN CONNECTION WITH
THE MATTERS WHICH ARE THE SUBJECT OF THE FOREGOING
WAIVERS AND RELEASES.
_______________
(Buyer's Initials)
13. Continuation and Survival. All representations, warranties and covenants by the respective parties contained herein or made in writing pursuant to this Agreement are intended to and shall be deemed made as of the date of this Agreement or such writing and again at the Closing, shall be deemed to be material, and unless expressly provided to the contrary shall survive the execution and delivery of this Agreement, the Deed and the Closing.
14. Indemnity.
Buyer agrees to indemnify Seller, its officers, officials, City Council, employees, agents, representatives and volunteers (“Seller Indemnified Parties”), and to hold and save Seller Indemnified Parties harmless from, all claims, demands, suits, actions, damages, obligations, liabilities, losses, costs and expenses, including but not limited to attorneys' fees and court costs, as a result of, related to or arising out of the Inspections, Buyer’s use of the Property, the Buyer’s present occupation and possession of the Property, or the acts or omissions of Buyer related to its use of the Property or arising out of this Agreement; provided, however, that Buyer will not be obligated to indemnify Seller with respect to Seller’s own sole negligence. The foregoing indemnity shall survive termination of this Agreement. Buyer shall not suffer or permit any mechanic's or materialmen's or other lien to stand against the Property in connection with any labor, materials or services furnished or claimed to have been furnished by or on behalf of Buyer in connection with or as a result of any Inspections. If any such lien shall be filed against the Property, Buyer shall cause such lien to be discharged or bonded within thirty (30) days after such filing. Following any Inspections Buyer shall restore the Property to substantially its physical condition as existed prior to such inspection (except for any changes to the Property caused by Seller, or its agents or employees). Prior to any entry on the Property Buyer or its consultant shall at its sole cost obtain a policy of liability insurance with a combined single limit 82595.00008\42522019.1
12 in an amount not less than One Million Dollars ($1,000,000); Seller shall each be named an additional insured on said policy; and Buyer or its consultants shall furnish to Seller a certificate of insurance confirming such coverage.
15. Condemnation.
(a) In the event a governmental entity commences eminent domain proceedings to take any portion of the Property after the date hereof and prior to the Closing, then Buyer shall have the option to terminate this Agreement by written notice to Seller within ten (10) business days after Buyer first learns of such commencement. In the event of any such termination, the Deposit shall be returned to Buyer. Buyer and Seller shall each be liable for one-half of any escrow fees or charges, and neither party shall have any further liability or obligation under this Agreement.
(b) In the event a governmental entity commences eminent domain proceedings to take any part of the Property after the date hereof and prior to the Closing and this Agreement is not terminated pursuant to Section 15(a), then the Closing shall occur as scheduled notwithstanding such proceeding; provided, however, that Seller's interest in all awards arising out of such proceedings (except for any award attributable to the loss of Seller's business or income, Seller's personal property, or the property of any tenant of the Property) shall be assigned to Buyer as of the Closing or credited to Buyer if previously received by Seller. Seller's obligations pursuant to this Section 15(b) shall survive the Closing.
16. Possession. Possession of the Property is and has been in the Buyer. For purposes of this Agreement, upon the Closing Date, it shall be deemed that Buyer have been given possession of the Property.
17. Seller's Cooperation with Buyer. At no cost to Seller, Seller shall cooperate and do all acts as may be reasonably required or requested by Buyer, at no additional cost to Seller, with regard to the fulfillment of any Condition Precedent. Seller hereby authorizes Buyer and its agents to make all inquiries with and applications to any third party, including any governmental authority, as Buyer may reasonably require to complete its due diligence and satisfy the Conditions Precedent.
18. Brokers and Finders. Neither party has had any contact or dealings regarding the Property, or any communication in connection with the subject matter of this transaction, through any real estate broker or other person who can claim a right to a commission or finder's fee in connection with the sale contemplated herein. In the event that any such broker or finder claims a commission or finder's fee based upon any contact, dealings or communication, the party through whom the broker or finder makes its claim shall be responsible for said commission or fee and all costs and expenses (including, without limitation, reasonable attorneys' fees) incurred by the other party in defending against the same. The party through whom any such other broker or finder makes a claim shall hold harmless, indemnify and defend the other party hereto, its successors and assigns, agents, employees, officers and directors, and the Property from and against any and all obligations, liabilities, claims, demands, liens, encumbrances and losses (including, without limitation, attorneys' fees), arising out of, based on, 82595.00008\42522019.1
13 or incurred as a result of such claim. The provisions of this Section 18 shall survive the Closing or termination of this Agreement.
19. Professional Fees. In the event legal action is commenced to enforce or interpret any of the terms or provisions of this Agreement, the prevailing party in such action shall be entitled to an award of reasonable attorneys’ fees and costs incurred in connection with the prosecution or defense of said action. In addition, the prevailing party shall be entitled to recover any actual accounting, engineering or other professional fees reasonably incurred in said action or proceeding.
20. Publicity and Confidentiality. Buyer acknowledges that Seller is a public entity and that this Agreement shall be a matter of public record and available to the public under the Public Records Act. Notwithstanding the foregoing, Buyer agrees to not make any public announcements regarding the Property prior to Closing.
21. Miscellaneous.
(a) Notices. Any notice, consent or approval required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been given upon (i) hand delivery, (ii) one business day after being deposited with Federal Express or another reliable overnight courier service for next day delivery, (iii) upon facsimile transmission (except that if the date of such transmission is not a business day or if such transmission is made after 5:00 p.m. on a business day, then such notice shall be deemed to be given on the first business day following such transmission), or (iv) two business days after being deposited in the United States mail, registered or certified mail, postage prepaid, return receipt required, and addressed as follows (or such other address as either party may from time to time specify in writing to the other in accordance herewith):
If to Seller: CITY OF ANTIOCH
Attn: City Manager
200 H Street
Antioch, CA 94509
Phone: (925) 779-7011
Email: [email protected]
With a copy to: CITY OF ANTIOCH
Attn: City Attorney
P.O. Box 5007
Antioch, CA 94531-5007
Phone: (925) 779-7015
Email: [email protected]
82595.00008\42522019.1
14 If to Buyer: DELTA LEARNING CENTER
Attn: Kimberly Ahumada
275 W Tregallas Road
Antioch, CA 94509
Phone: (925) 757-1310
Email [email protected]
With a copy to: _______________________________
Attn: __________________________
_______________________________
_______________________________
Phone: _________________________
Email ___________________________
To Escrow Holder: ________________________________
Attn: __________________________
_______________________________
_______________________________
Phone: _________________________
Email ___________________________
(b) Successors and Assigns. Buyer shall have the right to assign this Agreement to any entity controlling, controlled by or under common control with Buyer without Seller's consent or approval, and otherwise Buyer shall have the right to assign this Agreement to any entity subject to Seller's prior approval, which approval shall not be unreasonably withheld, conditioned or delayed. Any such assignee shall assume all obligations of Buyer hereunder; however, Buyer shall remain liable for all obligations hereunder. Seller shall have the right to assign this Agreement. Except as otherwise permitted by this paragraph, neither this Agreement nor the rights of either party hereunder may be assigned by either party. This Agreement shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors, heirs, administrators and assigns.
(c) Amendments. This Agreement may be amended or modified only by a written instrument executed by Seller and Buyer.
(d) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California.
(e) Construction. Headings at the beginning of each Section and subparagraph are solely for the convenience of the parties and are not a part of the Agreement.
This Agreement shall not be construed as if it had been prepared by one of the parties, but rather as if both parties had prepared the same. Unless otherwise indicated, all references to Sections and subparagraphs are to this Agreement. All exhibits referred to in this Agreement are attached and incorporated by this reference.
(f) No Joint Venture. This Agreement shall not create a partnership or joint venture relationship between Buyer and Seller.
82595.00008\42522019.1
15 (g) Merger of Prior Agreements. This Agreement and the exhibits attached hereto constitute the entire agreement between the parties and supersede all prior agreements and understandings between the parties relating to the subject matter hereof, including without limitation, any leases and any letters of intent previously executed or submitted by either or both of the parties hereto, which shall be of no further force or effect upon execution of this Agreement.
(h) Time of the Essence. Time is of the essence of this Agreement. Any references to a “day” in this Agreement shall mean a “business day.” As used in this Agreement, a “business day” shall mean a day which is not a Saturday, Sunday or recognized federal or state holiday. If the last date for performance by either party under this Agreement occurs on a day which is not a business day, than the last date for such performance shall be extended to the next occurring business day.
(i) Severability. If any provision of this Agreement, or the application thereof to any person, place, or circumstance, shall be held by a court of competent jurisdiction to be invalid, unenforceable or void, the remainder of this Agreement and such provisions as applied to other persons, places and circumstances shall remain in full force and effect. (j) Further Assurances. Each of the parties shall execute and deliver any and all additional papers, documents and other assurances and shall do any and all acts and things reasonably necessary in connection with the performance of their obligations hereunder and to carry out the intent of the parties.
(k) Exhibits. All exhibits attached hereto and referred to herein are incorporated herein as though set forth at length.
(l) Captions. The captions appearing at the commencement of the sections and paragraphs hereof are descriptive only and for convenience in reference. Should there be any conflict between any such caption and the section at the head of which it appears, the section and paragraph and not such caption shall control and govern in the construction of this Agreement.
(m) No Obligation To Third Parties. Execution and delivery of this Agreement shall not be deemed to confer any rights upon, directly, indirectly or by way of subrogation, nor obligate either of the parties hereto to, any person or entity other than each other.
(n) Waiver. The waiver by any party to this Agreement of the breach of any provision of this Agreement shall not be deemed a continuing waiver or a waiver of any subsequent breach, whether of the same or another provision of this Agreement. (o) Interpretation. This Agreement has been negotiated at arm's length and between persons (or their representatives) sophisticated and knowledgeable in the matters dealt with in this Agreement. Accordingly, any rule of law (including California Civil Code § 1654 and any successor statute) or legal decision that would require interpretation of any ambiguities against the party that has drafted it is not applicable and is waived. The provisions of this 82595.00008\42522019.1
16 Agreement shall be interpreted in a reasonable manner to effect the purpose of the parties and this Agreement.
(p) Counterparts; Electronic Execution and Delivery. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which when taken together will constitute one and the same instrument. The signature page of any counterpart may be detached therefrom without impairing the legal effect of the signature(s) thereon provided such signature page is attached to any other counterpart identical thereto except having additional signature pages executed by other parties to this Agreement attached thereto.
This Agreement may also be executed by DocuSign or other electronic transmission of signatures, including facsimile or email transmission of a counterpart hereof in portable document format (.pdf), and each copy hereof bearing the DocuSign, facsimile or electronic transmitted signature of any party’s authorized representative shall be deemed to be an original.
Seller and Buyer intend to be bound by the signatures on the electronic, facsimile or .pdf document, are aware that the other party will rely on the electronic, facsimile or .pdf signatures, and hereby waive any defenses to the enforcement of the terms of this Agreement based on the form of signature.
(Signature provisions on following pages)
82595.00008\42522019.1
ATTACHMENT C
EXHIBIT B
17 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date written below.
SELLER:
Date: _______________ City of Antioch. a California municipal corporation By: _____________________________________________
Name: _________________________________________
Its: ____________________________________________
ATTEST:
By: ___________________________
Elizabeth Householder
City Clerk
APPROVED AS TO FORM:
By:_________________________
Thomas Lloyd Smith
City Attorney
BUYER:
Date: Delta Learning Center, a California nonprofit public benefit corporation
By: _____________________________________________
Name: _________________________________________
Its: ____________________________________________
By: _____________________________________________
Name: _________________________________________
Its: ____________________________________________
82595.00008\42522019.1
EXHIBIT A
LEGAL DESCRIPTION
82595.00008\42522019.1
EXHIBIT B
FORM OF DEED
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO
CITY OF ANTIOCH
ATTN: CITY ATTORNEY
P.O. BOX 5007
ANTIOCH, CA 94531-5007
WITH A COPY TO AND
MAIL TAX STATEMENTS TO:
DELTA LEARNING CENTER
ATTN:
275 W TREGALLAS ROAD
ANTIOCH, CA 94509
__________________________________________________________________________ A.P.N.: 071-050-047 (Space Above Line for Recorder's Use Only) The Undersigned Grantor(s) Declare(s):
DOCUMENTARY TRANSFER TAX $________; CITY TRANSFER TAX $________; SURVEY MONUMENT FEE $ ________ [ ] computed on the consideration or full value of property conveyed, OR [ ] computed on the consideration or full value less value of liens and/or encumbrances remaining at time of sale, [ ] unincorporated area; [ ] City of __________________, and
GRANT DEED
WITH RESTRICTIVE COVENANTS AND RESERVATION OF RIGHTS
This GRANT DEED WITH RESTRICTIVE COVENANTS AND RESERVATION OF RIGHTS (“GRANT DEED”) is made and entered into on this ______ day of ________, 2024, by and between the CITY OF ANTIOCH, a California municipal corporation (“GRANTOR”), grants to DELTA LEARNING CENTER, a California nonprofit public benefit corporation (“GRANTEE”) pursuant to the terms, covenants, conditions and restrictions provided herein below.
RECITALS
WHEREAS, Grantor owns that certain real property, consisting of approximately 18,600 square feet of land, identified with Assessor’s Parcel Number 071-050-047, located in the City of Antioch, County of Contra Costa, State of California (the “Property”) and specifically excludes any of the improvements constructed and situated thereon the Property; and WHEREAS, as a material inducement for Grantor to sell and convey the Property to Grantee for nominal consideration, Grantee must agree to purchase and accept title to the 82595.00008\42522019.1 2
Property with certain covenants and deed restrictions pertaining to the use of the Property as further described below; and
WHEREAS, it has been deemed that the conveyance of the Property by the Grantor is for a common benefit of the public and serves a public purpose by conveying the Property, (the land only), to Grantee with a deed use restriction to ensure that the Property continues to be used as a center for serving the educational needs of and providing academic guidance to children and persons in the community.
FOR GOOD AND VALUABLE CONSIDERATION, receipt and sufficiency of which is hereby acknowledged, GRANTOR does hereby grant to GRANTEE, all that certain real property situated in the City of Antioch, County of Contra Costa, State of California, more particularly legally described on Exhibit A, attached hereto and by this reference incorporated herein, subject to easements of record, rights, and appurtenances to the Property
AND THE FOLLOWING NOTICES, COVENANTS, RESTRICTIONS AND
CONDITIONS AND RESERVATIONS OF RIGHTS:
(a) AS-IS Conveyance. The Property is being sold and conveyed in an “AS- IS” condition and with all faults.
(b) Essential Condition and Deed Use Restrictions. As a material inducement and an essential condition for the Grantor to sell and convey the Property for the nominal consideration, Grantee covenants and agrees, for itself and on behalf of its successors and assigns, that:
(i) the entire Property must and will continue to be used as a center for serving the educational needs of and providing academic guidance to children and adults in the community (“Current Use”); and
(ii) all necessary actions will be taken to ensure the continued Current Use, including without limitation, inclusion of these same deed restrictions, terms and conditions, pertaining to the Current Use in any transfers, leases or disposition documents for the Property to be imposed upon any successors and assigns; and (iii) in the event that the Grantee, any of its successors or assigns, desire(s) to change the use of the Property or to sell or transfer the Property coupled with a change of the use of the Property, Grantee, its successors and assigns, must to pay to the City of Antioch the then appraised value for the Property as consideration for City’s removal of such deed use restriction prior to any change of use or disposition and change of use, subject to the procedure provided herein Section (c) of this Grant Deed. (c) Rights and Obligations Pertaining to Change of Current Use or Sale with Change of Current Use Procedure. THE CITY, AS THE GRANTOR, RESERVES AND
RETAINS ON ITS OWN BEHALF THE RIGHT TO REMOVE THE CURRENT USE DEED RESTRICTIONS imposed upon the title to this Property whereby such reservation and right remains with the City and does not pass or transfer to a future grantor of the Property. Subject to the following procedure, Grantee, its successors and assign, shall have a right to change the Current Use of the Property provided the City of Antioch is paid the then appraised value for the 82595.00008\42522019.1 3
Property (referred to as the “Consideration”) and pursuant to the procedures provided herein this Section 1(c). In the event that Grantee, or any of its successors and assigns, make a determination that all or any portion of the Property is no longer desired for its Current Use or desires to sell the Property coupled with a change of the Current Use of all or any portion of the Property, then Grantee shall provide prior written notice to the City of Antioch, at the address provided above for the City (the “City” as the original “Grantor” of this Property) of such proposed change or sale with a change at least one hundred twenty (120) days prior to the date in which such change or sale with a change is scheduled to be completed. Grantee must tender or cause to be tendered funds into an escrow account sufficient to pay the City the Consideration described above as consideration to remove the Current Use Restriction imposed upon the Property by the City. The City agrees to execute and submit to escrow for recordation a quitclaim deed terminating the Current Use restriction in exchange for receiving the appropriate Consideration. If the Grantee, or any of its successors and assigns, fails to pay the Consideration to the City before a change of the Current Use or Sale with a Change of the Current Use occurs, then the City shall have the right to file and record a lien against the Property in the amount of the Consideration that was due to the City. The City must exercise its right to record a lien by sending to Grantee a written notice of exercise at least thirty (30) days prior to the City filing and recording the lien against the Property.
(d) The terms, conditions, reservations, covenants and restrictions contained herein in this Grant Deed shall be binding upon the Grantee, its successors and assigns.
IN WITNESS WHEREOF, Grantor has executed this Grant Deed with Restrictive Covenants as of ________________, 20__.
GRANTOR:
CITY OF ANTIOCH
By: _______________________________________
ACCEPTANCE: The Grantee hereby accepts this Grant Deed with Restrictive Covenants and agrees to be bound by all the terms, agreements, conditions, reservations, covenants and restrictions contained herein.
GRANTEE:
DELTA LEARNING CENTER
By: _____________________________________
Grant Deed may be
executed in counterparts
82595.00008\42522019.1 4
EXHIBIT A
LEGAL DESCRIPTION
(attach to Grant Deed)
82595.00008\42522019.1
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA )
)
COUNTY OF ________________ )
On ___________________, before me, _____________________________, a Notary Public, personally appeared _____________________________________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature _____________________________ (Seal)
82595.00008\42522019.1
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA )
)
COUNTY OF ________________ )
On ___________________, before me, _____________________________, a Notary Public, personally appeared _____________________________________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature _____________________________ (Seal)
82595.00008\42522019.1
EXHIBIT C
TRANSFEROR'S CERTIFICATION OF NON-FOREIGN STATUS
This form is provided so that the Buyer and/or Seller in this transaction can certify compliance with the Foreign Investment in Real Property Tax Act to the Escrow Agent and/or Buyer. Buyer (“Transferee”) must retain a copy of this document until after the fifth taxable year following the transfer.
Section 1445 of the Internal Revenue Code of 1986, as amended (“Code”) provides that a transferee of a U.S. real property interest must withhold tax if the transferor is a foreign person.
For U.S. tax purposes (including section 1445), the owner of a disregarded entity (which has legal title to a U.S. real property interest under local law) will be the transferor of the property and not the disregarded entity. To inform Transferee that withholding of tax is not required upon the disposition of a U.S. real property interest, the undersigned hereby certifies the following on behalf of _________________________________ (“Transferor”):
1. The Transferor is not a foreign corporation, foreign partnership, foreign trust, foreign estate or foreign person (as those terms are defined in the Code and the Income Tax Regulations promulgated thereunder).
2. The Transferor is not a disregarded entity as defined in Income Tax Regulation Section 1.1445-2(b)(2)(iii).
3. The Transferor's U.S. employer or tax identification number is ______________.
4. The Transferor's office address is
The Transferor understands that this Certification may be disclosed to the Internal Revenue Service by the Transferee and that any false statement contained herein could be punished by fine, imprisonment, or both.
Under penalties of perjury I declare that I have examined this Certification and to the best of my knowledge and belief it is true, correct and complete, and I further declare that I have authority to sign this document on behalf of the Transferor.
Date:______________, 20__ TRANSFEROR:
__________________________________________
By: _______________________________________
Name: ___________________________________
Its: ______________________________________
8 Agenda Item #
STAFF REPORT TO THE CITY COUNCIL
DATE: Regular Meeting of August 13, 2024
TO: Honorable Mayor and Members of the City Council
PREPARED BY: Kevin W. Kundinger, Assistant City Attorney
APPROVED BY: Thomas Lloyd Smith, City Attorney TLS
SUBJECT: Resolution for Approval of Cannabis Operating Agreement for ANT Green LLC
RECOMMENDED ACTION
It is recommended that the City Council:
1. Adopt a resolution approving a cannabis operating agreement between the City and ANT Green LLC and
2. Authorize the Acting City Manager to execute the agreement in a form approved by the City Attorney.
FISCAL IMPACT
Approval of the Operating agreement will result in increased revenue to the City and the social equity program supported by the operating agreement from ANT Green’s business.
DISCUSSION
On June 22, 2021, the Antioch City Council approved a Cannabis Business Use Permit (UP-20-10) for Ant Green. On August 5, 2024, the Cannabis Standing Committee directed staff to place an item on the City Council agenda recommending approval of a cannabis operating agreement between the City and ANT Green.
If the City Council approves its operating agreement, ANT Green’s business would be located at 3625 E 18thStreet. Its proposed cannabis operation will include cultivation, manufacturing, retail, and distribution (license types 3A, 7, 10, and 11 respectively.)
ANT Green’s operation will consist of a commercial building totaling approximately 95,420 square feet with one building that will be used for all purposes.
Antioch Staff Report to the City Council
August 13, 2024 Agenda Item #8 2
Before ANT Green can begin operations, it must obtain City Council approval of its operating agreement. The draft operating agreement (attached as Exhibit 1 to the Resolution of Approval, attached hereto as Attachment A) has been provided to ANT Green for review and comment. It consistent with the standard operating agreement the City is using with other cannabis businesses. ANT Green has indicated it is prepared to accept the terms of the operating agreement.
The proposed recipient of the social equity program is Monument Impact, which has several locations in the County, including one at 3501 Lone Street Way #3 Antioch, CA 94509. Monument Impact’s mission is to advance economic and racial equity in Contra Costa County by integrating advocacy with critical learning opportunities to ensure immigrants, refugees, and community members with low incomes have the power, skills, and relationships to secure living-wage jobs, stable housing, and good health. Their vision and values are as follows:
– Driven by a deep and relational connection to our community members, we value their dignity, resilience and leadership. – We work collaboratively with community members, organizations, foundations, donors and local governmental agencies to achieve our goals and increase resources and services for our community.
– Recognizing that not everyone in our region is benefiting from economic prosperity, we elevate community voices to ensure residents are heard and advocate for opportunity that truly sustains families and the community. – We are a trusted resource in the Monument because of our commitment to culturally competent programs, a bilingual staff, and community promoters and advocates.
A copy of Monument Impact’s proposed social equity program is attached hereto as Exhibit B.
Standard terms of the operating agreement include:
The operating agreement’s term is ten years with two possible five-year extensions. ANT Green agrees not to operate if the operating agreement is not in effect.
The Police Chief has discretion to require changes to the business to protect public health and safety.
The City Manager may impose additional mitigation measures relating to public health and safety.
ANT Green will begin paying a percentage of gross revenue to the City as of the 15thof the month following the City issuing a Certificate of Occupancy for the City, and monthly thereafter. A business paying a fee based on square footage shall pay that fee, based on existing square footage, at the end of each year.
The operating agreement shall be reviewed annually by City staff of a third party selected by the City.
Antioch Staff Report to the City Council
August 13, 2024 Agenda Item #8 3
The operating agreement includes provisions relating to indemnification of the City and insurance protecting the City.
The revenue to be paid to the City is set forth in Exhibit C to the operating agreement, which provides:
*Eligible for local employment incentive
The total amount payable to City by the Operator pursuant to this Exhibit may be reduced by the following amount if the Operator employs on a full-time basis the following numbers of Antioch residents:
At least 20 City residents 1%, but not to exceed $60,000 At least 50 City residents 3%, but not to exceed $150,000 At least 100 City residents 6%, but not to exceed $300,000 At least 150 City residents 9%, but not to exceed $450,000 200 or more City residents 12%, but not to exceed $600,000
ATTACHMENT
A. Resolution of Approval for Operating Agreement for ANT Green Exhibit 1 Operating Agreement
B. Monument Impact’s proposal
Business type Yr 1 Yr 2 Yr 3 Yr 4+
Retail 2% 3% 4% 5%
Microbusiness* 2% 3% 5% 6%
Cultivation (per square foot) * $2 $3 $5 $6
Distribution 2% 3% 4% 5%
Manufacturing 2% 3% 4% 5%
ATTACHMENT A
RESOLUTION NO. 2024/**
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ANTIOCH
APPROVING A CANNABIS OPERATING AGREEMENT FOR
, LLC
WHEREAS, on June 22, 2021, the City Council approved a resolution (No. 2021- 113)granting a cannabis business use permit (No. UP 20-10) to ANT Green, LLC, formerly known as Radix Growth, to operate a cannabis business within the City on the terms and conditions set forth therein;
WHEREAS, each cannabis business must obtain City Council approval of an operating agreement and execute that agreement prior to beginning operations as a cannabis business;
WHEREAS, the City Council has reviewed the attached Operating Agreement, and received public comment on it at its August 13, 2024, meeting; WHEREAS, the City Council finds that the attached Operating Agreement will benefit the Antioch community by producing revenue for the City and its goals; WHEREAS, the City Council finds that the attached Operating Agreement will benefit the Antioch community by the Operator committing to provide additional funding for programs to address community needs within Antioch; and WHEREAS, the City Council finds that the attached Operating Agreement in combination with the approved use permit for the cannabis business benefits the community and includes adequate provisions to protect public health and safety.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Antioch hereby approves the Operating Agreement in substantially the form attached as Exhibit A and authorizes the City Manager to execute the Agreement in a form approved by the City Attorney.
* * * * * * * * *
I HEREBY CERTIFYthat the foregoing resolution was passed and adopted by the City Council of the City of Antioch at a regular meeting thereof, held on the 13th day of August, 2024, by the following vote:
AYES:
ABSENT:
ATTACHMENT A
ABSTAIN:
NOES:
______________________________
ELIZABETH HOUSEHOLDER
CITY CLERK OF THE CITY OF ANTIOCH
EXHIBIT 1
TO ATTACHMENT A
_____________ Operating Agreement
[date]
RECORDING REQUESTED BY,
AND WHEN RECORDED, MAIL TO:
City of Antioch
200 H Street
Antioch, CA 94509
Attn: City Clerk
_____________________________________________________________________________________ Exempt from recording fee per Government Code §6103
OPERATING AGREEMENT
This Operating Agreement (“Agreement”) is entered into between the City of Antioch, a municipal corporation (“City”) and ANT Green LLC, a California limited liability company (“Operator”), whose address is 3625 E 18th St, Antioch, California 94509. City and Operator may be referenced herein as “Party” or collectively as “Parties.”
RECITALS
A. Operator submitted an application for approval of a use permit for a cannabis business, as further detailed herein.
B. On May 19, 2021, by Resolution No. 2021-10, the City Council approved a Cannabis Business Use Permit to operate cannabis business UP-20-10 (“CBUP”). A copy of the CBUP is attached hereto as Exhibit A and incorporated herein. The CBUP relates to the Site, as described in Exhibit B, attached hereto and incorporated herein.
C. One condition of the CBUP is that the City and Operator execute an Operating Agreement. This Agreement meets this requirement of the CBUP.
D. On ___________, 2024, the City Council adopted Resolution __________ approving this Agreement.
AGREEMENT
1. Recitals. The Recitals set forth above are incorporated herein as if fully set forth in this Agreement.
2. Definitions. The following terms, when capitalized herein, shall have the meanings specified below.
a. Agreement—This Agreement between the City and Operator. b. Applicable Law—All applicable federal, state, regional, and local statutes, regulations, and rules including the Uniform Building Code and other Uniform Codes, the California Environmental Quality Act, the City’s ordinances, resolutions, rules, and regulations, as each statute, regulation, regulation, rule, EXHIBIT 1
TO ATTACHMENT A
_____________ Operating Agreement
[date]
Code, ordinance, and resolution may be amended from time to time, excluding such federal law which may conflict with state or local laws authorizing cannabis businesses or operations. c. Business Operations—The commercial cannabis business operated at the Site by Operator, its officers, officials, employees, agents, and consultants, as approved by the City Council in the CBUP, and as subject to the terms and conditions of this Agreement. d. Cannabis—Both medical and non-medical cannabis as defined by Health & Safety Code section 11362.5 and Business and Professions Code sections 26000 et seq. e. Cannabis Business Use Permit—the Cannabis Business Use Permit, attached hereto as Exhibit A, as approved by City Council Resolution No. 2021-10.
f. City—the City of Antioch, California.
g. City Attorney—the City Attorney of the City.
h. City Council—the City Council of the City.
i. City Manager—the City Manager of the City.
j. Operator— ANT Green LLC.
k. Fees—All charges, expenses, costs, monetary exactions, and any other monetary obligations imposed on Operator by City, other than assessments or regular or special taxes, and not limited to fees paid pursuant to this Agreement.
l. Gross Receipts—The total of amounts actually received or receivables from sales and the total amounts actually received or receivable for the performance of any act or service for which a charge is made or credit allowed, whether or not such act or service is done as a part of or in connection with the sale of materials, goods, wares, or merchandise. Gross receipts shall also include all receipts, cash, credits and property of any kind without deduction of the cost of the property sold, the costs of the materials used, labor or services costs, interest paid or payable, or losses or other expenses whatsoever. Excluded from “gross receipts" are the following:
Cash discounts allowed and taken on sales
Credit allowed on property accepted as part of the purchase price and which property may later be sold
Any tax required by law to be included in or added to the purchase price and collected from the consumer or purchaser
Such part of the sale price of property returned by a purchaser upon rescission of the contract of sale as is refunded whether in cash or by credit Amounts collected for others where the business is acting as an agent or trustee to the extent that such amounts are paid to those for whom collected, provided the agent or trustee furnishes to the City the names and addresses of the others and the amounts paid to them
Receipts of refundable deposits, except that refundable deposits forfeited and taken into income of the business are not excluded
EXHIBIT 1
TO ATTACHMENT A
_____________ Operating Agreement
[date]
The intent of this definition is to ensure that, in calculating payments to the City, all sales and revenue from the Business Operations are captured and, therefore, this definition shall be given the broadest possible definition consistent with this intent. m. Major amendment—Any modification to this Agreement that makes a substantive change, modification, or deviation in the terms of this Agreement or any Exhibits hereto. n. Minor amendment—Any modification to this Agreement that does not make a substantive change, modification, or deviation in the terms of this Agreement or any Exhibits hereto. o. Police Chief—the Police Chief of the City.
p. Project—The Business Operations, Site Development, Odor and other Mitigation Plans, Security Plans, and all other terms and conditions applicable to Operator’s Business Operations. q. Site—The physical location of the Operator’s Business Operations, as described in Exhibit B, attached hereto.
r. Square Footage under Cultivation--the actual amount of canopy (measured by the aggregate area of vegetative growth of live cannabis plants on the premises including the area occupied by vertically and horizontally stacked canopies) that is limited by the maximum amount a cannabis business is authorized to cultivate by this Agreement or the CBUP, without deducting for unutilized square footage.
s. State license(s)—the license(s) issued by the State, whether through the Bureau of Cannabis Control or other regulatory agency authorizing the Operator to conduct its Business Operations
3. Effective Date. This Agreement shall be effective as of the date of the Resolution approving this Agreement, or such other date (if any) as specified in the Resolution approving this Agreement.
4. Term of Agreement. The initial term of this Agreement shall be ten years, with two possible extensions of five years each. This Agreement may be extended by mutual agreement of the Operator and the City Council on such additional terms and conditions as to which the Parties may agree. At the end of the term, Operator agrees to cease all Business Operations at the Site, notwithstanding the terms and conditions of the CBUP. The parties agree that, prior to the end of the initial ten-year term, they will meet and confer in good faith with the goal either of continuing this Agreement on the same terms and conditions or of modifying the Agreement so that the Business Operations may continue for the mutual benefit of the City and the Operator.
5. Operating Conditions. In addition to the terms and conditions set forth in the CBUP, Operator’s Business Operations shall be subject to the additional terms and conditions:
a. Hours of operation of retail sales on the Site shall not exceed 7 days per week, 8 a.m. to 8 p.m. There are no other hours’ restrictions on the Business Operations, including delivery. b. Subsequent to the annual audit by the Police Department or a third party selected by the Police Department, the Police Chief shall have the discretion to require additional security measures or modify existing security measures at the Operator’s expense, as may be required by law or reasonable for public safety. At Operator’s expense, the Police Chief may also determine to require additional security EXHIBIT 1
TO ATTACHMENT A
_____________ Operating Agreement
[date]
measures at any time upon the Department’s finding that existing security measures are insufficient for the Business Operations to comply with the terms of the CBUP or to adequately protect public health and safety. The Police Chief’s determination is appealable to the City Manager. c. The City Manager may impose additional mitigation measures, whether relating to odor or other factors affecting public health and safety, on the Project at Operator’s expense, as may be required by law or reasonable to maintain public health and safety. The City Manager’s determination is appealable pursuant to Title 1, Chapter 4 of the City’s Municipal Code.
6. Fees.
a. Operator agrees to pay all fees, whether imposed by the City, state, or other regulatory agencies in a timely manner. Operator’s failure to pay such fees in a timely manner may, at the City’s sole discretion, constitute Evidence of Default. City may provide thirty (30) days’ prior written notice to Operator as to any unpaid City fees. If Operator fails to pay such fees, plus any interest or penalties due for late payment, Operator agrees that the City may record on the property which is the subject of the CBUP one or more liens for the fees owed.
b. Operator agrees to pay City beginning with the fifteenth of the month immediately following the date the City issues the Certificate of Occupancy for the Site the amounts set forth in Exhibit C, attached hereto and incorporated herein. The amount due for Gross Receipts is payable thereafter on the 15th of each month or, if the 15th is a weekend day or a national or state holiday, on the next business day (“Due Date”). The amount due based on square footage, with adjustments made during the year as square footage is increased or decreased, is payable thereafter quarterly, on January 15, April 15, July 15, and October 15 or, if the 15this a weekend day or a national or state holiday, on the next business day (“Due Date”). The Operator shall also submit with its Gross Receipts payment a report on a form provided by the Operator and approved by the City which lists the gross receipts for the period, any adjustments to the gross receipts and basis therefor, the gross receipts subject to the percentages set forth in Exhibit C, and the total amount due.
c. A payment is late or deficient under this Section if not postmarked by or received by the City Finance Department on or before the Due Date. A late or deficient payment shall be subject to a penalty of a one-time penalty of five percent (5%) of the amount owed, plus monthly non-compounding interest at the maximum rate allowed by law, but not to exceed an annualized amount of ten percent (10%). d. If the City Manager is not satisfied with the veracity of report(s) filed by Operator regarding the Business Operations’ total gross receipts or square footage, the City Manager may compute and determine the amount of the fees to paid on the gross receipts or square footage and make a deficiency determination upon the basis of the facts contained in such report(s), or upon the basis of any information in City’s possession, or that may come into City’s possession within three years of the date the fees are paid. One or more deficiency determinations of the amount of fees owed for a period or periods may be made. The determination of the City Manager pursuant to this subsection is appealable pursuant to Title 1, Chapter 4 of the City’s Municipal Code.
EXHIBIT 1
TO ATTACHMENT A
_____________ Operating Agreement
[date]
7. Social Equity Programs.
a. Operator agrees to implement and maintain for the entirety of the term of this Agreement a Social Equity Program (“Equity Program”) to benefit the City and its residents, to foster equitable participation in the cannabis industry, and to create business opportunities for those most negatively impacted by the enforcement of cannabis laws prior to the legalization of cannabis in California.
Operator shall initiate its Equity Program within three months of this Agreement’s Effective Date. b. Operator shall prepare a written Social Equity Program Plan (“Equity Plan”), which includes the Equity Program’s description, a non-profit social equity program plan organization (“Equity Plan Organization“) located in Antioch and approved by the City, and an action plan with goals, tasks, responsible parties, timelines, and measurable outcomes. The Equity Plan is set forth in Exhibit D, attached hereto and incorporated herein. Operator shall provide a written report, semi-annually, to the City Manager and City Attorney on its progress in carrying out the Equity Program’s goals and measurable outcomes. Upon request of the City Manager or City Attorney, Operator also agrees to provide a presentation to the City Council on the Equity Plan’s goals and measurable outcomes. The Equity Plan may be modified in writing by request of the Operator and only with prior written approval of the City Manager or the City Attorney.
c. If the City Council, the City Manager, or the City Attorney determine that Operator’s Equity Plan does not adequately achieve the City’s goals as set forth herein, the City Council, the City Manager, or the City Attorney shall have the discretion to require the Operator to modify its Equity Plan subsequent to one or more meetings with the Operator.
d. Operator agrees to fund its Equity Plan, as detailed in Exhibit D, with the first payment submitted to its Equity Plan Organization at the same time as the first payment for gross receipts and/or square footage is due under Section 6b hereof. Subsequent payments to its Equity Plan Organization shall be made quarterly with each subsequent quarterly payment due on January 15, April 15, July 15, and October 15 or, if the 15this a weekend day or a national or state holiday, on the next business day. Late payment from the Operator to the Equity Plan Organization shall be subject to the same penalties and interest set forth in section 6 hereof.
8. Applicable Law. At all times, Operator shall conduct its Business Operations consistent with Applicable Law, including the City’s ordinances, rules, and regulations; the CBUP; and this Agreement, as each may be amended or modified from time to time. Any violation thereof by Operator or its Business Operations may, at the City’s discretion, be considered Evidence of Default.
9. Default.
a. If the City Manager finds Evidence of Default, the City Manager shall provide at least forty-five (45) days’ written notice thereof to Operator, with the notice specifying the nature of the default, the facts supporting such Evidence of Default, and the manner in which the Default may be cured. Within that forty-five day period, Operator shall cure the Default to the City Manager’s reasonable satisfaction, provide evidence with supporting facts as to why no Default exists, or provide alternatives satisfactory to the City Manager to address the Default.
EXHIBIT 1
TO ATTACHMENT A
_____________ Operating Agreement
[date]
b. If the City Manager is not satisfied with Operator’s response and/or believes a Default continues to exist, then the City Manager may, at his/her sole discretion:
Order the Operator to suspend all Business Operations at the Site until the Default is cured.
Take such other action as may be authorized by the CBUP or this Agreement.
Remedy the Default and charge the costs thereof to the Operator, who agrees to pay such sums.
c. The decision of the City Manager under this section is appealable pursuant to Title 1, Chapter 4 of the City’s Municipal Code.
d. The remedies of this section, plus any other remedies set forth in this Agreement and remedies available in law or in equity are cumulative, and non-exclusive. Such remedies are distinct and separate whether or not exercised by the City. The City may, in its discretion, exercise any or all of its rights and remedies, at once or in succession, at such time or times as it considers to be appropriate.
10. Record Keeping. Operator shall keep, maintain, and preserve to the extent applicable all records that may be necessary to determine the amount of gross receipts, the number of retail delivery vehicles, the amount of cannabis manufactured, the amount of cannabis delivered, and any and all other records by which City may determine and verify the amount of fees due to the City pursuant to Section 6 hereof.
At Operator’s expense, City shall have the option of conducting, whether by City staff or by a City-selected consultant, an annual audit to verify the fees due to the City pursuant to Section 6 hereof and compliance with Exhibit D. City shall have the right to inspect such records at all reasonable times during normal business hours and upon not less than five (5) business days’ prior notice. To the extent permitted by Applicable Law, City agrees to treat such records as confidential.
11. Annual Review. In addition to the right to conduct an audit pursuant to Section 10 hereof, the City Manager, at his/her discretion, may direct City staff or a third party to review, no more frequently than once per year, the Business Operations and compliance thereof with the CBUP and this Agreement.
Operator shall be responsible for paying the costs of this annual review, which shall not exceed $10,000 per review, adjusted annually by the CPI index for Bay area cities. In the event there is good cause for a review that would exceed $10,000 (as adjusted annually), Operator and City shall negotiate a minor amendment to allow for such review. Based on this review, City may require additional mitigation measures or other changes to the Business Operations to assure compliance with the CBUP and this Agreement.
12. Amendments. This Agreement may be amended from time to time, if in writing and signed by both parties. The City Manager or the City Attorney shall have the discretion to approve a Minor Amendment to this Agreement or to refer such Minor Amendment to the Council for review and possible action. The City Council, at a duly noticed public meeting, shall have the discretion to approve a Major Amendment or a Minor Amendment, which has been referred to the Council.
13. Assignment. City has entered into the Agreement with Operator in reliance upon Operator’s specialized knowledge, experience, and expertise relating to the Project and cannabis-related business.
Therefore, this Agreement may not be assigned or otherwise transferred by Operator, whether to a third EXHIBIT 1
TO ATTACHMENT A
_____________ Operating Agreement
[date]
party or to another entity (even if Operator is a partner, owner, or otherwise a participant in such entity), without the prior written authorization of the City Council at a duly noticed meeting. Any such assignment or transfer, at City’s sole discretion, may be considered Evidence of Default. Should Operator wish to assign or otherwise transfer the Agreement, Operator shall provide evidence to the reasonable satisfaction of the City Manager and the City Attorney of the specialized knowledge, experience, expertise, and financial stability of the proposed assignee or transferee prior to review and possible approval by the City Council.
14. Indemnification. Operator agrees to indemnify, defend, and hold harmless City, its officers, officials, employees, agents, and consultants from any and all administrative, legal, or equitable actions, claims, or other proceedings instituted by any person or entity not a party to the Agreement challenging the validity of the Agreement or any action arising out of or relating to the Agreement. Operator shall pay for City’s costs of defense, whether directly or by timely reimbursement on a monthly basis. Such costs shall include, but not be limited to, all court costs and attorney’s fees expended by the City in defense of the action or proceeding, plus staff and consultant time spent in regard to defense of the action or proceeding. The parties shall use best efforts to select mutually agreeable defense counsel but, if the parties cannot reach agreement, City may select its own legal counsel and Operator agrees to pay directly or timely reimburse on a monthly basis City for all such court costs, attorney’s fees and time referenced herein.
Operator further agrees to indemnify, defend, and hold harmless City, its officers, officials, employees, agents, and consultants from any and all claims, costs, and liability for any damages, personal injury or death, or property damage which may arise directly or indirectly from Operator’s Business Operations pursuant to this Agreement, except as caused by City’s sole or gross negligence.
15. Insurance.
a. For the term of the Agreement, Operator shall be required to, and agrees to, maintain in full force and effect public liability and property damage insurance, including personal injury in an amount of not less than three million dollars ($3,000,000) per occurrence and five million dollars ($5,000,000) aggregate, and automobile insurance for owned and non-owned vehicles, in an amount of not less than one million dollars ($1,000,000) per occurrence and two million dollars ($2,000,000) aggregate. Each policy shall have such coverage and limits as may be reasonably requested by City from time to time. Each policy shall have a self-insured retention of not more than one hundred thousand dollars ($100,000.) b. The insurance referenced herein shall include endorsements, naming as additional insureds the City, its officers, officials, employees, consultants, and agents. The endorsements shall also specify that the insurance is primary, with any policies held by the City to be non-contributing. c. The insurance referenced herein shall be evidenced by certificate(s) of insurance, which shall be kept current during the term of this Agreement. d. The certificate(s) and endorsement(s) shall be provided to, and approved by, the City Attorney prior to Operator beginning Business Operations.
EXHIBIT 1
TO ATTACHMENT A
_____________ Operating Agreement
[date]
e. The insurance shall be placed with a company authorized to transact business in the State of California and with a rating of not less than A.M. Best-A, or such other rating as approved by the City Attorney.
f. Operator shall provide at least thirty (30) days’ prior written notice of any cancellation, reduction in scope or amount, or material modification of the insurance referenced herein. g. If Operator fails to maintain the insurance referenced herein, the City in its sole discretion may obtain such insurance at Operator’s expense, with Operator obligated to promptly reimburse the City, or determine such failure to be Evidence of Default.
16. Notices. Any notice or communication required by the Agreement between the parties shall be in writing and may be delivered either personally or by registered mail, return receipt requested. Notice, whether given by personal delivery or by registered mail, shall be deemed to have been given and received on the day of actual receipt at any of the addresses designated below as to the party to whom the notice is sent. Any party hereto may at any time, upon written notice to the other party hereto, designate any other address in substitution of the address to which such notice or communication shall be given.
However, should a party’s address no longer be valid such that delivery by registered mail, return receipt required, is not successful, then delivery by U.S. mail shall be effective five business days after mailing of notice. Such notices or communications shall be given to the parties at the addresses set forth below:
To the City of Antioch:
City of Antioch
200 H Street
Antioch, CA 94509
Attn: City Manager
With a copy to:
City of Antioch
200 H Street
Antioch, CA 94509
Attn: City Attorney
To Operator:
ANT Green LLC
312 Elliot St
San Francisco, CA 94134
With a copy to:
EXHIBIT 1
TO ATTACHMENT A
_____________ Operating Agreement
[date]
Harvest Law
1017 L St #275
Sacramento, CA 95814
Attn: Melissa Sanchez
17. Miscellaneous
a. Each party has had an equal opportunity to consult with legal counsel. Therefore, the usual construction of an agreement against the drafting party shall not apply to the Agreement. b. If any term, provision, covenant, or condition of this Agreement is held by court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions of the Agreement shall continue in full force and effect, unless enforcement of the Agreement as so invalidated would be unreasonable or grossly inequitable under all the circumstances or would the frustrate the purpose of the Agreement. c. The Parties shall take all steps reasonable and necessary to effectuate the terms and intent of the Agreement. However, no provision of the Agreement shall limit, or be construed to limit, the right of the City, the City Manager, the City Attorney, or the City Council to exercise discretion as to the Agreement or other matters.
d. The Parties are not, and shall not be construed, to be partners or joint venturers. e. The only parties to the Agreement are City and Operator. There are no third-party beneficiaries and the Agreement is not intended, and shall not be construed, to benefit or be enforceable by any other person whatsoever.
f. In the event that suit is brought by either Party to the Agreement, the Parties agree that venue shall be exclusively vested in the state court of Contra Costa County, or in the U.S. District Court for the Northern District of California.
g. This Agreement and the Exhibits attached hereto contain all the representations and the entire agreement between parties with respect to the subject matter hereof. h. The Parties acknowledge that City would not have entered into this Agreement had it been exposed to damage claims from Operator for any breach hereof. As such, the Parties agree that in no event shall Operator be entitled to recover damages against City for breach of this Agreement. i. This Agreement may be executed in duplicate counterpart originals, each of which is deemed to be an original, and all of which when taken together shall constitute one and the same instrument. j. All waivers must be in writing to be effective or binding upon the waiving party and no waiver shall be implied from any omission by a party to take or not take any action with respect to default or other matters. Failure by a party to insist upon the strict performance of any provisions of the Agreement by the other party shall not constitute waiver of such party’s right to demand strict compliance by the EXHIBIT 1
TO ATTACHMENT A
_____________ Operating Agreement
[date]
other party in the future. Furthermore, no express written waiver of any default shall affect any other default or cover any other period of time specified I such express waiver. k. Notwithstanding termination or expiration of this Agreement for any reason, Sections 6c, 6d, 10 and 14 shall be continuing obligations of Operator and shall survive this Agreement.
EXECUTED AS OF ____________________, 2024.
CITY OF ANTIOCH OPERATOR
Kwame P. Reed, Acting City Manager ANT Green LLC
___________________________ ___________________________ Yiu Ming Cheung, Sole Member
Attest:
_____________________________
Elizabeth Householder, City Clerk
Approved as to form:
____________________________
Thomas L. Smith, City Attorney
EXHIBIT 1
TO ATTACHMENT A
_____________ Operating Agreement
[date]
EXHIBIT A
[to be attached]
EXHIBIT 1
TO ATTACHMENT A
_____________ Operating Agreement
[date]
EXHIBIT B
The Site is located at 3625 East 18th Street, Antioch CA 94509 and is APN: 051-052-094.
EXHIBIT 1
TO ATTACHMENT A
_____________ Operating Agreement
[date]
EXHIBIT C
Business type Yr 1 Yr 2 Yr 3 Yr 4+
Retail 2% 3% 4% 5%
Microbusiness* 2% 3% 5% 6%
Cultivation (per square foot)* $2 $3 $5 $6
Distribution 2% 3% 4% 5%
Manufacturing 2% 3% 4% 5%
*Eligible for local employment incentive
The total amount payable to City by the Operator pursuant to this Exhibit shall be reduced by the following amount(s) if the Operator employs not fewer than the following numbers of Antioch residents on a full-time basis, providing healthcare benefits:
At least 20 City residents 1%, but not to exceed $60,000 At least 50 City residents 3%, but not to exceed $150,000 At least 100 City residents 6%, but not to exceed $300,000 At least 150 City residents 9%, but not to exceed $450,000 200 or more City residents 12%, but not to exceed $600,000 Example: If the revenue due to the City from Operator, based on gross receipts, is $500,000, and the Operator employs 51 City residents, then the $500,000 would be reduced by 3% and the Operator would owe the City $485,000.
For any Operator requesting the local employment incentive, the City reserves the right to verify the number of City residents employed on an annual basis.
EXHIBIT 1
TO ATTACHMENT A
_____________ Operating Agreement
[date]
EXHIBIT D
TBD
1760 Clayton Road, Concord, CA 94520 · Phone: (925) 682-8248
ATTACHMENT B
Organization Description Monument Impact (MI)’s mission is to advance economic and racial equity in Contra Costa County by integrating advocacy with critical learning opportunities to ensure immigrants, refugees, and community members with low incomes have the power, skills, and relationships to secure living-wage jobs, stable housing, and good health. We envision a more equitable Contra Costa County where everyone, regardless of where they come from or how much money they have, thrives and plays an active role in the region's social, economic, and civic life. MI promotes from within and actively seeks community members and program graduates to fill positions. MI’s success is due to an empathetic, well-trained staff who bring lived experience, knowledge, and profound understanding of the community served, resulting in a deep trust among low-income immigrants and other marginalized residents of color in Contra Costa County. Currently, 100% of MI’s staff are bilingual and represent the community members served. Issues or Challenges Addressed The rate of prison admissions grew 486% in Contra Costa County between 1970 and 2000. This is primarily due to the War on Drugs, which has been well documented to have disproportionately affected Latinx and Black communities. While Contra Costa County overturned thousands of marijuana convictions in 2020, the damage to families had already been done.Population ServedMI serves low-income immigrants and refugees in Central and East Contra Costa County. The immigrants and refugees that MI serves have disproportionately been affected by cannabis and other drug use in their communities. Post-immigration, immigrants and other communities of color see higher arrest and incarceration rates in the U.S. For example, in Contra Costa County, 24% of arrests in 2015 were Hispanics, compounding trauma on this population. This disproportionately affectsresidents of the City of Antioch since over 40% of the city’s population identifies as Latinx, according toCensus data for the City of Antioch. These rates don’t reflect increased drug use among this population, but the focus of law enforcement on these communities. For some immigrants, a minor offense can have dire consequences, such as ICE detention and deportation, further compounding trauma on those directly affected and their families.
Strategic Funding
Some of our current strategic priorities is to build social equity in East Contra Costa County that include:
Monument Impact (MI) is requesting funding for Antioch Blooming: Women Rooted in Action - a transformative program that will address economic and social barriers, empowering the lives of 15 BIPOC women residents in Antioch. Antioch Blooming – Women Rooted in Action would be carried out in 12 months in four phases focusing on the following:
• Health
• Economic Stability
• Education
• Community Engagement
9 Agenda Item #
STAFF REPORT TO THE CITY COUNCIL
DATE: Regular Meeting of August 13, 2024
TO: Honorable Mayor and Members of the City Council
PREPARED BY: Kevin W. Kundinger, Assistant City Attorney APPROVED BY: Thomas Lloyd Smith, City Attorney TLS
SUBJECT: Resolution for Approval of Cannabis Operating Agreement for OTC Antioch, LLC
RECOMMENDED ACTION
It is recommended that the City Council:
1. Adopt a resolution approving a cannabis operating agreement between the City and OTC Antioch, LLC and
2. Authorize the Acting City Manager to execute the agreement in a form approved by the City Attorney.
FISCAL IMPACT
Approval of the Operating agreement will result in increased revenue to the City and the social equity program supported by the operating agreement from OTC Antioch’s business.
DISCUSSION
On September 13, 2022, the Antioch City Council approved a Cannabis Business Use Permit 22-01 for OTC Antioch. On August 5, 2024, the Cannabis Standing Committee directed staff to place an item on the City Council agenda recommending approval of a cannabis operating agreement between the City and OTC Antioch.
If the City Council approves its operating agreement, OTC Antioch’s business would be located at 300 G Street. Its proposed cannabis operation will include retail (license type 10, respectively.)
Antioch Staff Report to the City Council
August 13, 2024 Agenda Item #9 2
OTC Antioch’s operation will consist of two buildings totaling approximately 10,300 square feet, with the cannabis dispensary occupying the 6,800 square foot building at the northern portion of the site.
Before OTC Antioch can begin operations, it must obtain City Council approval of its operating agreement. The draft operating agreement (attached as Exhibit 1 to the Resolution of Approval, attached hereto as Attachment A) has been provided to OTC Antioch LLC for review and comment. It consistent with the standard operating agreement the City is using with other cannabis businesses. OTC Antioch has indicated it is prepared to accept the terms of the operating agreement.
The proposed recipient of the social equity program is Bridge Builders to the New Generation, located at 5032 Tehachapi Way Antioch, CA 94531. Bridge Builders to the New Generation is dedicated to fostering the social emotional learning and mental well- being of youth and families from marginalized communities, providing a supportive and inclusive environment where they can develop essential skills for success in college, career, and life. Our passionate team is committed to empowering underserved youth to lead fulfilling lives by nurturing their growth and offering opportunities for the development of educational, social, vocational, and independent living skills. Their vision is eliminate barriers to success, allowing underserved youth to live their dreams and attain their aspirations while being productive members of society. A copy of Bridge Builders to the New Generation’s proposed social equity program is attached hereto as Exhibit B.
Standard terms of the operating agreement include:
The operating agreement’s term is ten years with two possible five-year extensions. OTC Antioch agrees not to operate if the operating agreement is not in effect.
The Police Chief has discretion to require changes to the business to protect public health and safety.
The City Manager may impose additional mitigation measures relating to public health and safety.
OTC Antioch will begin paying a percentage of gross revenue to the City as of the 15thof the month following the City issuing a Certificate of Occupancy for the City, and monthly thereafter. A business paying a fee based on square footage shall pay that fee, based on existing square footage, at the end of each year.
The operating agreement shall be reviewed annually by City staff of a third party selected by the City.
The operating agreement includes provisions relating to indemnification of the City and insurance protecting the City.
The revenue to be paid to the City is set forth in Exhibit C to the operating agreement, which provides:
Antioch Staff Report to the City Council
August 13, 2024 Agenda Item #9 3
*Eligible for local employment incentive
The total amount payable to City by the Operator pursuant to this Exhibit may be reduced by the following amount if the Operator employs on a full-time basis the following numbers of Antioch residents:
At least 20 City residents 1%, but not to exceed $60,000 At least 50 City residents 3%, but not to exceed $150,000 At least 100 City residents 6%, but not to exceed $300,000 At least 150 City residents 9%, but not to exceed $450,000 200 or more City residents 12%, but not to exceed $600,000
ATTACHMENT
A. Resolution of Approval for Operating Agreement for OTC Antioch Exhibit 1 Operating Agreement
B. Bridge Builders to the New Generation’s proposal
Business type Yr 1 Yr 2 Yr 3 Yr 4+
Retail 2% 3% 4% 5%
Microbusiness* 2% 3% 5% 6%
Cultivation (per square foot) * $2 $3 $5 $6
Distribution 2% 3% 4% 5%
Manufacturing 2% 3% 4% 5%
ATTACHMENT A
RESOLUTION NO. 2024/**
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ANTIOCH
APPROVING THE CANNABIS OPERATING AGREEMENT FOR OTC ANTIOCH, LLC WHEREAS, on September 13, 2022, by Resolution No. 2022-165, the City Council approved Cannabis Business Use Permit No. UP 22-01 for OTC Antioch, LLC to operate a cannabis business within the City on the terms and conditions set forth therein; WHEREAS, each cannabis business must obtain City Council approval of an operating agreement and execute that agreement prior to beginning operations as a cannabis business;
WHEREAS, the City Council has reviewed the attached Operating Agreement, and received public comment thereon, at its August 13, 2024, meeting; WHEREAS, the City Council finds that the attached Operating Agreement will benefit the Antioch community by producing revenue for the City and its goals; WHEREAS, the City Council finds that the attached Operating Agreement will benefit the Antioch community by the Operator committing to provide additional funding for programs to address community needs within Antioch; and WHEREAS, the City Council finds that the attached Operating Agreement in combination with the approved use permit for the cannabis business will not only benefit the community but also includes adequate provisions to protect public health and safety.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Antioch hereby approves the attached Operating Agreement and authorizes the City Manager to execute same.
* * * * * * * * *
I HEREBY CERTIFYthat the foregoing resolution was passed and adopted by the City Council of the City of Antioch at a regular meeting thereof, held on the 13th day of August, 2024, by the following vote:
AYES:
ABSENT:
ABSTAIN:
NOES:
ATTACHMENT A
______________________________
ELIZABETH HOUSEHOLDER
CITY CLERK OF THE CITY OF ANTIOCH
EXHIBIT 1
TO ATTACHMENT A
OTC Antioch Operating Agreement
RECORDING REQUESTED BY,
AND WHEN RECORDED, MAIL TO:
City of Antioch
200 H Street
Antioch, CA 94509
Attn: City Clerk
_____________________________________________________________________________________ Exempt from recording fee per Government Code §6103
OPERATING AGREEMENT
This Operating Agreement (“Agreement”) is entered into between the City of Antioch, a municipal corporation (“City”) and OTC Antioch LLC, a California limited liability company (“Operator”), whose address is 300 G Street, Antioch, California 94509. City and Operator may be referenced herein as “Party” or collectively as “Parties.”
RECITALS
A. Operator submitted an application for approval of a use permit and design review for a cannabis business, as further detailed herein.
B. On September 13, 2022, by Resolution No. 2022/165, the City Council approved a Cannabis Business Use Permit to operate cannabis business UP 22-01 (“CBUP”). A copy of the CBUP is attached hereto as Exhibit A and incorporated herein. The CBUP relates to the Site, as described in Exhibit B, attached hereto and incorporated herein.
C. One condition of the CBUP is that the City and Operator execute an Operating Agreement. This Agreement meets this requirement of the CBUP.
D. On ________, 2024, the City Council adopted Resolution No. 2023/__ approving this Agreement.
AGREEMENT
1. Recitals. The Recitals set forth above are incorporated herein as if fully set forth in this Agreement.
2. Definitions. The following terms, when capitalized herein, shall have the meanings specified below.
a. Agreement—This Agreement between the City and Operator. b. Applicable Law—All applicable federal, state, regional, and local statutes, regulations, and rules including the Uniform Building Code and other Uniform Codes, the California Environmental Quality Act, the City’s ordinances, resolutions, rules, and regulations, as each statute, regulation, regulation, rule, EXHIBIT 1
TO ATTACHMENT A
OTC Antioch Operating Agreement
Code, ordinance, and resolution may be amended from time to time, excluding such federal law which may conflict with state or local laws authorizing cannabis businesses or operations. c. Business Operations—The commercial cannabis business operated at the Site by Operator, its officers, officials, employees, agents, and consultants, as approved by the City Council in the CBUP, and as subject to the terms and conditions of this Agreement. d. Cannabis—Both medical and non-medical cannabis as defined by Health & Safety Code section 11362.5 and Business and Professions Code sections 26000 et seq. e. Cannabis Business Use Permit—the Cannabis Business Use Permit UP 22-01, attached hereto as Exhibit A, as approved by City Council Resolution No. 2022/165. f. City—the City of Antioch, California.
g. City Attorney—the City Attorney of the City.
h. City Council—the City Council of the City.
i. City Manager—the City Manager of the City.
j. Operator—OTC Antioch LLC.
k. Fees—All charges, expenses, costs, monetary exactions, and any other monetary obligations imposed on Operator by City, other than assessments or regular or special taxes, and not limited to fees paid pursuant to this Agreement.
l. Gross Receipts—The total of amounts actually received or receivables from sales and the total amounts actually received or receivable for the performance of any act or service for which a charge is made or credit allowed, whether or not such act or service is done as a part of or in connection with the sale of materials, goods, wares, or merchandise. Gross receipts shall also include all receipts, cash, credits and property of any kind without deduction of the cost of the property sold, the costs of the materials used, labor or services costs, interest paid or payable, or losses or other expenses whatsoever. Excluded from “gross receipts" are the following:
Cash discounts allowed and taken on sales
Credit allowed on property accepted as part of the purchase price and which property may later be sold
Any tax required by law to be included in or added to the purchase price and collected from the consumer or purchaser
Such part of the sale price of property returned by a purchaser upon rescission of the contract of sale as is refunded whether in cash or by credit Amounts collected for others where the business is acting as an agent or trustee to the extent that such amounts are paid to those for whom collected, provided the agent or trustee furnishes to the City the names and addresses of the others and the amounts paid to them
Receipts of refundable deposits, except that refundable deposits forfeited and taken into income of the business are not excluded
EXHIBIT 1
TO ATTACHMENT A
OTC Antioch Operating Agreement
The intent of this definition is to ensure that, in calculating payments to the City, all sales and revenue from the Business Operations are captured and, therefore, this definition shall be given the broadest possible definition consistent with this intent. m. Major amendment—Any modification to this Agreement that makes a substantive change, modification, or deviation in the terms of this Agreement or any Exhibits hereto. n. Minor amendment—Any modification to this Agreement that does not make a substantive change, modification, or deviation in the terms of this Agreement or any Exhibits hereto. o. Police Chief—the Police Chief of the City.
p. Project—The Business Operations, Site Development, Odor and other Mitigation Plans, Security Plans, and all other terms and conditions applicable to Operator’s Business Operations. q. Site—The physical location of the Operator’s Business Operations, as described in Exhibit B, attached hereto.
r. Square Footage under Cultivation--the actual amount of canopy (measured by the aggregate area of vegetative growth of live cannabis plants on the premises including the area occupied by vertically and horizontally stacked canopies) that is limited by the maximum amount a cannabis business is authorized to cultivate by this Agreement or the CBUP, without deducting for unutilized square footage.
s. State license(s)—the license(s) issued by the State, whether through the Bureau of Cannabis Control or other regulatory agency authorizing the Operator to conduct its Business Operations
3. Effective Date. This Agreement shall be effective as of the date of the Resolution approving this Agreement, or such other date (if any) as specified in the Resolution approving this Agreement.
4. Term of Agreement. The initial term of this Agreement shall be ten years, with two possible extensions of five years each. This Agreement may be extended by mutual agreement of the Operator and the City Council on such additional terms and conditions as to which the Parties may agree. At the end of the term, Operator agrees to cease all Business Operations at the Site, notwithstanding the terms and conditions of the CBUP. The parties agree that, prior to the end of the initial ten-year term, they will meet and confer in good faith with the goal either of continuing this Agreement on the same terms and conditions or of modifying the Agreement so that the Business Operations may continue for the mutual benefit of the City and the Operator.
5. Operating Conditions. In addition to the terms and conditions set forth in the CBUP, Operator’s Business Operations shall be subject to the additional terms and conditions:
a. Hours of operation of retail sales on the Site shall not exceed 7 days per week, 8:00 a.m. to 8:00 p.m. There are no other hours’ restrictions on the Business Operations, including delivery. b. Subsequent to the annual audit by the Police Department or a third party selected by the Police Department, the Police Chief shall have the discretion to require additional security measures or modify existing security measures at the Operator’s expense, as may be required by law or reasonable for public safety. At Operator’s expense, the Police Chief may also determine to require additional security EXHIBIT 1
TO ATTACHMENT A
OTC Antioch Operating Agreement
measures at any time upon the Department’s finding that existing security measures are insufficient for the Business Operations to comply with the terms of the CBUP or to adequately protect public health and safety. The Police Chief’s determination is appealable to the City Manager. c. The City Manager may impose additional mitigation measures, whether relating to odor or other factors affecting public health and safety, on the Project at Operator’s expense, as may be required by law or reasonable to maintain public health and safety. The City Manager’s determination is appealable pursuant to Title 1, Chapter 4 of the City’s Municipal Code.
6. Fees.
a. Operator agrees to pay all fees, whether imposed by the City, state, or other regulatory agencies in a timely manner. Operator’s failure to pay such fees in a timely manner may, at the City’s sole discretion, constitute Evidence of Default. City may provide thirty (30) days’ prior written notice to Operator as to any unpaid City fees. If Operator fails to pay such fees, plus any interest or penalties due for late payment, Operator agrees that the City may record on the property which is the subject of the CBUP one or more liens for the fees owed.
b. Operator agrees to pay City beginning with the fifteenth of the month immediately following the date the City issues the Certificate of Occupancy for the Site the amounts set forth in Exhibit C, attached hereto and incorporated herein. The amount due for Gross Receipts is payable thereafter on the 15th of each month or, if the 15th is a weekend day or a national or state holiday, on the next business day (“Due Date”). The amount due based on square footage, with adjustments made during the year as square footage is increased or decreased, is payable thereafter quarterly, on January 15, April 15, July 15, and October 15 or, if the 15this a weekend day or a national or state holiday, on the next business day (“Due Date”). The Operator shall also submit with each payment required by this section a report on a form provided by the Operator and approved by the City which lists the gross receipts for the period, any adjustments to the gross receipts and basis therefor, the gross receipts subject to the percentages set forth in Exhibit C, the square footage cultivated for the period, and the total amount due. c. A payment is late or deficient under this Section if not postmarked by or received by the City Finance Department on or before the Due Date. A late or deficient payment shall be subject to a one- time penalty of five percent (5%) of the amount owed, plus monthly non-compounding interest at the maximum rate allowed by law, but not to exceed an annualized amount of ten percent (10%). d. If the City Manager is not satisfied with the veracity of report(s) filed by Operator regarding the Business Operations’ total gross receipts or square footage, the City Manager may compute and determine the amount of the fees to paid on the gross receipts or square footage and make a deficiency determination upon the basis of the facts contained in such report(s), or upon the basis of any information in City’s possession, or that may come into City’s possession within three years of the date the fees are paid. One or more deficiency determinations of the amount of fees owed for a period or periods may be made. The determination of the City Manager pursuant to this subsection is appealable pursuant to Title 1, Chapter 4 of the City’s Municipal Code.
EXHIBIT 1
TO ATTACHMENT A
OTC Antioch Operating Agreement
7. Social Equity Program.
a. Operator agrees to implement and maintain for the entirety of the term of this Agreement a Social Equity Program (“Equity Program”) to benefit the City and its residents, to foster equitable participation in the cannabis industry, and to create business opportunities for those most negatively impacted by the enforcement of cannabis laws prior to the legalization of cannabis in California.
Operator shall initiate its Equity Program within three months of this Agreement’s Effective Date. b. Operator shall prepare a written Social Equity Program Plan (“Equity Plan”), which includes the Equity Program’s description, a non-profit social equity program plan organization (“Equity Plan Organization“) located in Antioch and approved by the City, and an action plan with goals, tasks, responsible parties, timelines, and measurable outcomes. The Equity Plan is set forth in Exhibit D, attached hereto and incorporated herein. Operator shall provide a written report, semi-annually, to the City Manager and City Attorney on its progress in carrying out the Equity Program’s goals and measurable outcomes. Upon request of the City Manager or City Attorney, Operator also agrees to provide a presentation to the City Council on the Equity Plan’s goals and measurable outcomes. The Equity Plan may be modified in writing by request of the Operator and only with prior written approval of the City Manager or the City Attorney.
c. If the City Council, the City Manager, or the City Attorney determines that Operator’s Equity Plan does not adequately achieve the City’s goals as set forth herein, the City Council, the City Manager, or the City Attorney shall have the discretion to require the Operator to modify its Equity Plan subsequent to one or more meetings with the Operator.
d. Operator agrees to fund its Equity Plan, as detailed in Exhibit D, with the first payment submitted to its Equity Plan Organization at the same time as the first payment for gross receipts and/or square footage is due under Section 6b hereof. Subsequent payments to its Equity Plan Organization shall be made quarterly with each subsequent quarterly payment due on January 15, April 15, July 15, and October 15 or, if the 15this a weekend day or a national or state holiday, on the next business day. Late payment from the Operator to the Equity Plan Organization shall be subject to the same penalties and interest set forth in section 6 hereof.
8. Applicable Law. At all times, Operator shall conduct its Business Operations consistent with Applicable Law, including the City’s ordinances, rules, and regulations; the CBUP; and this Agreement, as each may be amended or modified from time to time. Any violation thereof by Operator or its Business Operations may, at the City’s discretion, be considered Evidence of Default.
9. Default.
a. If the City Manager finds Evidence of Default, the City Manager shall provide at least forty-five (45) days’ written notice thereof to Operator, with the notice specifying the nature of the default, the facts supporting such Evidence of Default, and the manner in which the Default may be cured. Within that forty-five day period, Operator shall cure the Default to the City Manager’s reasonable satisfaction, provide evidence with supporting facts as to why no Default exists, or provide alternatives satisfactory to the City Manager to address the Default.
EXHIBIT 1
TO ATTACHMENT A
OTC Antioch Operating Agreement
b. If the City Manager is not satisfied with Operator’s response and/or believes a Default continues to exist, then the City Manager may, at his/her sole discretion:
Order the Operator to suspend all Business Operations at the Site until the Default is cured.
Take such other action as may be authorized by the CBUP or this Agreement.
Remedy the Default and charge the costs thereof to the Operator, who agrees to pay such sums.
c. The decision of the City Manager under this section is appealable pursuant to Title 1, Chapter 4 of the City’s Municipal Code.
d. The remedies of this section, plus any other remedies set forth in this Agreement and remedies available in law or in equity are cumulative, and non-exclusive. Such remedies are distinct and separate whether or not exercised by the City. The City may, in its discretion, exercise any or all of its rights and remedies, at once or in succession, at such time or times as it considers to be appropriate.
10. Record Keeping. Operator shall keep, maintain, and preserve to the extent applicable all records that may be necessary to determine the amount of gross receipts, the number of retail delivery vehicles, the amount of cannabis manufactured, the amount of cannabis delivered, and any and all other records by which City may determine and verify the amount of fees due to the City pursuant to Section 6 hereof.
At Operator’s expense, City shall have the option of conducting, whether by City staff or by a City-selected consultant, an annual audit to verify the fees due to the City pursuant to Section 6 hereof and compliance with Exhibit D. City shall have the right to inspect such records at all reasonable times during normal business hours and upon not less than five (5) business days’ prior notice. To the extent permitted by Applicable Law, City agrees to treat such records as confidential.
11. Annual Review. In addition to the right to conduct an audit pursuant to Section 10 hereof, the City Manager, at his/her discretion, may direct City staff or a third party to review, no more frequently than once per year, the Business Operations and compliance thereof with the CBUP and this Agreement.
Operator shall be responsible for paying the costs of this annual review, which shall not exceed $10,000 per review, adjusted annually by the CPI index for Bay area cities. In the event there is good cause for a review that would exceed $10,000 (as adjusted annually), Operator and City shall negotiate a minor amendment to allow for such review. Generally, “good cause” shall be considered present upon the City’s finding of a discrepancy, inconsistency, or omission in Operator’s records, or when Operator is found to have violated this Agreement , or there is evidence substantiating a claim that Operator committed a regulatory violation under the laws of the State of California or the City’s rules and regulations. Such determination will be based on the City’s rules and regulations as well as the relevant laws and regulations of the State of California. Based on this review, City may require additional mitigation measures or other changes to the Business Operations to assure compliance with the CBUP and this Agreement.
12. Amendments. This Agreement may be amended from time to time, if in writing and signed by both parties. The City Manager or the City Attorney shall have the discretion to approve a Minor Amendment to this Agreement or to refer such Minor Amendment to the Council for review and possible action. The City Council, at a duly noticed public meeting, shall have the discretion to approve a Major Amendment or a Minor Amendment, which has been referred to the Council.
EXHIBIT 1
TO ATTACHMENT A
OTC Antioch Operating Agreement
13. Assignment. City has entered into the Agreement with Operator in reliance upon Operator’s specialized knowledge, experience, and expertise relating to the Project and cannabis-related business.
Therefore, this Agreement may not be assigned or otherwise transferred by Operator, whether to a third party or to another entity (even if Operator is a partner, owner, or otherwise a participant in such entity), without the prior written authorization of the City Council at a duly noticed meeting. Any such assignment or transfer, at City’s sole discretion, may be considered Evidence of Default. Should Operator wish to assign or otherwise transfer the Agreement, Operator shall provide evidence to the reasonable satisfaction of the City Manager and the City Attorney of the specialized knowledge, experience, expertise, and financial stability of the proposed assignee or transferee prior to review and possible approval by the City Council.
14. Indemnification. Operator agrees to indemnify, defend, and hold harmless City, its officers, officials, employees, agents, and consultants from any and all administrative, legal, or equitable actions, claims, or other proceedings instituted by any person or entity not a party to the Agreement challenging the validity of the Agreement or any action arising out of or relating to the Agreement. Operator shall pay for City’s costs of defense, whether directly or by timely reimbursement on a monthly basis. Such costs shall include, but not be limited to, all court costs and attorney’s fees expended by the City in defense of the action or proceeding, plus staff and consultant time spent in regard to defense of the action or proceeding. The parties shall use best efforts to select mutually agreeable defense counsel but, if the parties cannot reach agreement, City may select its own legal counsel and Operator agrees to pay directly or timely reimburse on a monthly basis City for all such court costs, attorney’s fees and time referenced herein.
Operator further agrees to indemnify, defend, and hold harmless City, its officers, officials, employees, agents, and consultants from any and all claims, costs, and liability for any damages, personal injury or death, or property damage which may arise directly or indirectly from Operator’s Business Operations pursuant to this Agreement, except as caused by City’s sole or gross negligence.
15. Insurance.
a. For the term of the Agreement, Operator shall be required to, and agrees to, maintain in full force and effect public liability and property damage insurance, including personal injury in an amount of not less than three million dollars ($3,000,000) per occurrence and five million dollars ($5,000,000) aggregate, and automobile insurance for owned and non-owned vehicles, in an amount of not less than one million dollars ($1,000,000) per occurrence and two million dollars ($2,000,000) aggregate. Each policy shall have such coverage and limits as may be reasonably requested by City from time to time. Each policy shall have a self-insured retention of not more than one hundred thousand dollars ($100,000.) b. The insurance referenced herein shall include endorsements, naming as additional insureds the City, its officers, officials, employees, consultants, and agents. The endorsements shall also specify that the insurance is primary, with any policies held by the City to be non-contributing. c. The insurance referenced herein shall be evidenced by certificate(s) of insurance, which shall be kept current during the term of this Agreement.
EXHIBIT 1
TO ATTACHMENT A
OTC Antioch Operating Agreement
d. The certificate(s) and endorsement(s) shall be provided to, and approved by, the City Attorney prior to Operator beginning Business Operations. e. The insurance shall be placed with a company authorized to transact business in the State of California and with a rating of not less than A.M. Best-A, or such other rating as approved by the City Attorney.
f. Operator shall provide at least thirty (30) days’ prior written notice of any cancellation, reduction in scope or amount, or material modification of the insurance referenced herein. g. If Operator fails to maintain the insurance referenced herein, the City in its sole discretion may obtain such insurance at Operator’s expense, with Operator obligated to promptly reimburse the City, or determine such failure to be Evidence of Default.
16. Notices. Any notice or communication required by the Agreement between the parties shall be in writing and may be delivered either personally or by registered mail, return receipt requested. Notice, whether given by personal delivery or by registered mail, shall be deemed to have been given and received on the day of actual receipt at any of the addresses designated below as to the party to whom the notice is sent. Any party hereto may at any time, upon written notice to the other party hereto, designate any other address in substitution of the address to which such notice or communication shall be given.
However, should a party’s address no longer be valid such that delivery by registered mail, return receipt required, is not successful, then delivery by U.S. mail shall be effective five business days after mailing of notice. Such notices or communications shall be given to the parties at the addresses set forth below:
To the City of Antioch:
If by personal delivery: If by U.S. mail:
City of Antioch City of Antioch
200 H Street P. O. Box 5007
Antioch, CA 94509 Antioch, CA 94531-5007
Attn: City Manager Attn: City Manager
With a copy to:
If by personal delivery: If by U.S. mail:
City of Antioch City of Antioch
200 H Street P. O. Box 5007
Antioch, CA 94509 Antioch, CA 94531-5007
Attn: City Attorney Attn: City Attorney
To Operator:
OTC Antioch LLC
EXHIBIT 1
TO ATTACHMENT A
OTC Antioch Operating Agreement
15030 Ventura Blvd #169
Sherman Oaks, CA 91403
Attn: Norman Yousif
With a copy to:
Maddocks Law P.C.
23 Corporate Plaza Dr #150
Newport Beach, CA 92660
Attn: Sean Maddocks
17. Miscellaneous
a. Each party has had an equal opportunity to consult with legal counsel. Therefore, the usual construction of an agreement against the drafting party shall not apply to the Agreement. b. If any term, provision, covenant, or condition of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions of the Agreement shall continue in full force and effect, unless enforcement of the Agreement as so invalidated would be unreasonable or grossly inequitable under all the circumstances or would the frustrate the purpose of the Agreement. c. The Parties shall take all steps reasonable and necessary to effectuate the terms and intent of the Agreement. However, no provision of the Agreement shall limit, or be construed to limit, the right of the City, the City Manager, the City Attorney, or the City Council to exercise discretion as to the Agreement or other matters.
d. The Parties are not, and shall not be construed, to be partners or joint venturers. e. The only parties to the Agreement are City and Operator. There are no third-party beneficiaries and the Agreement is not intended, and shall not be construed, to benefit or be enforceable by any other person whatsoever.
f. In the event that suit is brought by either Party to the Agreement, the Parties agree that venue shall be exclusively vested in the state court of Contra Costa County, or in the U.S. District Court for the Northern District of California.
g. This Agreement and the Exhibits attached hereto contain all the representations and the entire agreement between parties with respect to the subject matter hereof. h. The Parties acknowledge that City would not have entered into this Agreement had it been exposed to damage claims from Operator for any breach hereof. As such, the Parties agree that in no event shall Operator be entitled to recover damages against City for breach of this Agreement. The City agrees that, notwithstanding any claims against Operator and/or City as referenced above, as long as Operator’s State license remains intact and the Operator is in full compliance with this Agreement, the CBUP, and the City’s rules and regulations, Operator’s business shall be allowed to continue in operation pending the outcome of relevant public hearing(s) scheduled to address alleged violations of this Agreement and/or Operator’s CBUP.
EXHIBIT 1
TO ATTACHMENT A
OTC Antioch Operating Agreement
i. This Agreement may be executed in duplicate counterpart originals, each of which is deemed to be an original, and all of which when taken together shall constitute one and the same instrument. j. All waivers must be in writing to be effective or binding upon the waiving party and no waiver shall be implied from any omission by a party to take or not take any action with respect to default or other matters. Failure by a party to insist upon the strict performance of any provisions of the Agreement by the other party shall not constitute waiver of such party’s right to demand strict compliance by the other party in the future. Furthermore, no express written waiver of any default shall affect any other default or cover any other period of time unless specified in such express waiver. k. Notwithstanding termination or expiration of this Agreement for any reason, Sections 6c, 6d, 10 and 14 shall be continuing obligations of Operator and shall survive this Agreement.
EXECUTED AS OF ____________________, 2024
[Signatures on next page]
EXHIBIT 1
TO ATTACHMENT A
OTC Antioch Operating Agreement
CITY OF ANTIOCH OPERATOR
OTC Antioch LLC
________________________________ ___________________ Kwame P. Reed, Acting City Manager By: Norman Yousif Its: Managing Member
Attest:
______________________________
Elizabeth Householder, City Clerk
Approved as to form:
_____________________________
Thomas Lloyd Smith, City Attorney
EXHIBIT 1
TO ATTACHMENT A
OTC Antioch Operating Agreement
EXHIBIT A
[to be attached]
EXHIBIT 1
TO ATTACHMENT A
OTC Antioch Operating Agreement
EXHIBIT B
The Site is located 300 G Street, Antioch CA 94509 and is APN 066-062-012.
EXHIBIT 1
TO ATTACHMENT A
OTC Antioch Operating Agreement
EXHIBIT C
Business type Yr 1 Yr 2 Yr 3 Yr 4+
Retail 2% 3% 4% 5%
Microbusiness* 2% 3% 5% 6%
Cultivation (per square foot)* $2 $3 $5 $6
Distribution 2% 3% 4% 5%
Manufacturing 2% 3% 4% 5%
*Eligible for local employment incentive
The total amount payable to City by the Operator pursuant to this Exhibit shall be reduced by the following amount(s) if the Operator employs not fewer than the following numbers of Antioch residents on a full-time basis, providing healthcare benefits:
At least 20 City residents 1%, but not to exceed $60,000 At least 50 City residents 3%, but not to exceed $150,000 At least 100 City residents 6%, but not to exceed $300,000 At least 150 City residents 9%, but not to exceed $450,000 200 or more City residents 12%, but not to exceed $600,000 Example: If the revenue due to the City from Operator, based on gross receipts, is $500,000, and the Operator employs 51 City residents, then the $500,000 would be reduced by 3% and the Operator would owe the City $485,000.
For any Operator requesting the local employment incentive, the City reserves the right to verify the number of City residents employed on an annual basis.
EXHIBIT 1
TO ATTACHMENT A
OTC Antioch Operating Agreement
EXHIBIT D
Operator will donate a percentage of gross receipts to non-profit social equity programs whose purpose is to help underprivileged children or adults who have been adversely affected by drug abuse, with such programs serving Antioch residents.
Consistent with this goal, Operator will provide to Bridge Builders to the New Generation, a 501 (c)(3) non-profit corporation, or other City approved Equity Plan Organization the following funding: 0.25% in year one, 0.37% in year 2, and 0.5% in year 3 and thereafter of gross receipts (the “Equity Contribution”), paid consistent with the terms of the Operating Agreement.
Operator’s funding will help the Justice Center or other City approved Equity Plan Organization develop and implement a “Generations Connect” program to work with Antioch youth, in coordination with adults, to develop various life skills, knowledge and community and cross-generational connections.
In the event that Operator’s selected Equity Plan Organization has not been approved by the City at the time of Operator’s commencement of Business Operations, Operator shall either deposit the Equity Contribution into an interest bearing Escrow Account or remit the Equity Contribution directly to the City in accordance with the terms of the Operating Agreement until such time as Operator’s selected Equity Plan Organization has been approved by the City.
Bridge Builders to the New Generation ATTACHMENT B
5032 Tehachapi Way, Antioch, CA 94531
https://www.bridgebuildersng.org/
EIN: 85-1665741
Founded in 2019, Bridge Builders to the New Generation (BBNG) currently serves 500+ majority BIPOC youth in seven schools in Antioch. Through school-site, after-school, and summer programming, BBNG provides youth with a culturally responsive and healing-centered space to explore their intersectional identities, name and process their trauma, develop social, emotional, and leadership capacities, engage in personal and academic goal setting, and create solutions to community problems. Through collectivity and the nurturing of possibility thinking, BBNG helps Antioch youth identify structural inequities and break the cycle of poverty, violence, and generational trauma to become self-actualized young adults. Through staff love, guidance, and peer-to-peer mentorship, BBNG youth interrupt deficit-based narratives and define their own personal, college, and professional aspirations.
Once known as a ‘sundown town’, the reverberation of systemic oppression pervades Antioch, through institutions like schooling, policing, housing, and healthcare. Public schools have pushed out and emotionally and psychologically harmed BIPOC youth with multidimensional struggles and their families. BBNG provides space to breathe, heal and build a bridge out of hopelessness and despair. Current program offerings include onsite school support, after-school academic support and leadership workshops, healing circles, peer mentoring, summer seminars, community mapping, college tours, and career field trips.
The Change the Narrative program provides college and career readiness grounded in culturally responsive, trauma-informed, and healing-centered social-emotional learning for middle and high school students in Antioch with marginalized, intersectional identities. Its purpose is to disrupt the trauma-to-discipline and school-to-prison pipeline by developing youth leaders both within the school environment and local community by providing staff- and peer mentorship, leadership development activities, and academic support. Change the Narrative gives our students a sense of belonging, fosters collectivity, and builds an expansive culture on school campuses and in the Antioch community.
Ultimately, BBNG envisions East Contra Costa County as a region that prioritizes the well-being of BIPOC youth by co-creating equity-driven solutions with youth and their families. We want to see an end to pathologizing and punishing youth for behaviors stemming from trauma. Change the Narrative seeks to disrupt systemic and structural inequities that plague Antioch’s institutions by implementing a youth-centered, regional-specific approach, beginning with schools.
The project goals include providing youth with healing-centered communities in which they can name and process their trauma, interrogate their environments and advocate for their needs, establish a leadership identity, and meet personal, wellness, and academic goals. The project will annually serve 500+ BIPOC middle and high schoolers at five schools in Antioch Unified School District (AUSD): Deer Valley High School, Antioch High School, Dallas Ranch Middle School, Antioch Middle School, and Park Middle School, Marsh Elementary School, and Mission Elementary School.
BBNG youth are majority BIPOC - 6 18-year-olds who identify as male, female, and gender- expansive. They have intersectional experiences related to generational trauma, drug use, family separation, housing insecurity and mental health challenges. The structural violence inflicted on BIPOC communities (e.g., crack epidemic, the ‘War on Drugs’, police brutality, gentrification) over the last decades has pushed low-income, BIPOC families out of Oakland and San Francisco and into cities like Antioch, with a lower cost of living. BBNG youth are from these families that moved to Antioch over the last two decades. To our youth, Antioch does not feel like home.
Antioch’s schools and community institutions have more work to become culturally responsive and healing-centered. In 2011, the federal Office for Civil Rights Data Collection reported that Black students made up 21% of the AUSD population yet accounted for 60% of suspensions. In 2015, the East County NAACP sued Antioch Unified School District, urging the district to examine discipline data, policies, and practices through a critical race lens. In the 2021-2022 school year, data showed that even more Black students have enrolled in schools across Antioch, and their suspension rates remain disproportionately higher than all subgroups.
10 Agenda Item #
STAFF REPORT TO THE CITY COUNCIL
DATE: Regular Meeting of August 13, 2024
TO: Honorable Mayor and Members of the City Council
SUBMITTED BY: Kwame P. Reed, Acting City Manager
SUBJECT: City Council Requested Discussion Item Discussion on Working with Contra Costa County to Create a Coordinated Outreach Referral, Engagement (C.O.R.E.) Team for Antioch
RECOMMENDED ACTION
It is recommended that the City Council discuss and provide direction to City staff.
FISCAL IMPACT
The recommended action has no fiscal impact at this time.
DISCUSSION
This item is for Councilmember Ogorchock request to
hold a discussion on working with Contra Costa County to create a Coordinated Outreach Referral, Engagement (C.O.R.E.) team for Antioch.
ATTACHMENTS
None