Sanitary Sewer Improvements shall be due prior to recordation of the first final map for the Project.
6. The applicant shall pay their fair share payment to be determined in accordance with the terms of the “Aviano Roadway Reimbursement Agreement” (dated March 9, 2021) The costs of the Supplemental Roadway Improvements and Sand Creek Extension Project Improvements subject to the fair share payment include all costs of the design and construction thereof and all costs incidental to such design and construction.
The City Engineer shall calculate and determine the fair share payment amount owed by applicant for the Supplemental Roadway Improvements and the Sand Creek Extension Project Local Share, and shall provide such determination to applicant . The fair share payment for the Supplemental Roadway Improvements and Sand Creek Extension Project Local Share shall be due prior to recordation of the first final map for the Project.
K. MO
DEL HOMES
1. If the Developer requests model homes , a sales trailer, or construction trailer, can be proposed and the Developer shall submit a site plan showing the exact location of the trailer with adequate parking free from the installation of any gravel private road improvements and if needed drainage basins. The plan shall be submitted to the Antioch Engineering and Building Departments for review and approval prior to installation of any homes. All sales or construction trailers shall be placed out of the private or public rights-of-way to the satisfaction of the City Engineer.
2. The model home complex paved parking lot shall be in an empty residential lot, not in the private street subject to review and as approved by the City Engineer.
3. The model home landscaping shall be drought tolerant, with total area of spray irrigation for the complex not to exceed 50 percent of the landscaping area.
L. G RADING
1. Prior to the approval of the grading plan(s), the City Engineer shall determine if it is necessary to engage a soils and structural engineer, as well as any other professionals, deemed necessary to review and verify the adequacy of the soils in the grading of the project to the design grades and slopes, and the placement of the various streets and residential structures to the configuration shown on the Vesting Tentative Map 9515. A geotechnical investigation and report shall be prepared and submitted to the City for review and approval prior to grading permit and grading construction. If deemed necessary by the City Engineer, this may include D46
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field boring, test pits and site inspections by such professionals to verify implementation of the plans. Costs for these services shall be borne by the applicant.
2. A
ll mass and rough grading of all cut and fill operations shall not allow erosion and sedimentation to occur anywhere outside and within the project. The slopes shall be hydroseeded as soon as possible during and after mass and rough grading operation ceases. Erosion control and clean water control measures shall be implemented as soon as possible during all phases of construction in accordance with a State, and local approved erosion and sedimentation control measures and site inspections.
3. R
ough and final grading permits shall be obtained from the City prior to any grading operations. Retaining walls shall be structural ly designed with concrete and concrete masonry or other approved methods and made to blend into the hill side development. The design of all retaining walls shall be reviewed and approved by the City Engineer, planning department and local building official to the satisfaction of the City Engineer prior to construction.
4. A
ll lots and slopes shall drain to approved drainage facilities as approved by the City Engineer.
5. A
ll grading shall be accomplished in a manner that precludes surface water drainage across any property line or roadway.
6. A
ll lots shall be graded to drain positively from the rear of the lot to the street or as approved by the City Engineer.
7. T
he swales adjacent to the house structure shall have a minimum of a one percent (1%) slope or as directed by the City Engineer.
8. A
ll grading is subject to the coordination and approval of the affected existing property owners and the City Engineer. The applicant shall submit written authorization to “access, enter, or grade” adjacent properties prior to performing any work.
9. An
y sale of a portion (or portions) of this project to multiple developers shall include the necessary developer agreement and/or grading easements to assure that project -wide grading conforms to the approved map and conditions of approval with this resolution.
10. T
he grading plan for this development shall be approved by a competent Geotechnical engineer that will supervise the grading operations and the City Engineer.
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11. All elevations shown on the plans shall be on NAVD 88 as approved by the City Engineer.
12. A
ny retaining or sound walls shall not be constructed in the City right-of-way or other City maintained parcels unless approved by the City Engineer.
13. A
ll retaining walls shall be reduced in height to the maximum extent practicable and the walls shall meet the height requirements in the front yard setback and sight distance triangles as required by the City Engineer.
14. T
he back -to-back or side -to-side grading transitions from lot -to-lot shall have a maximum slope of 2:1 and shall be accommodated entirely on the lower lot or as approved by the City Engineer.
15. T
he minimum longitudinal concrete gutter flow slope shall be 0.75 percent.
16. P
rior to the approval of the grading plan(s), the City Engineer shall determine if a soils or structural engineer, are required to review the building permit plan set submitted for this project. If deemed necessary by the City Engineer, field inspections by such professionals will be required to verify compliance with the approved plans. Costs for these consulting services shall be incurred by the Developer.
17. A
ll grading on adjacent properties is subject to the coordination and approval of the affected property owners and the City Engineer. The Developer shall submit written authorization to “access, enter, and/or grade” adjacent properties prior to issuance of the grading permit.
18. T
he grading operation shall not allow erosion and sedimentation to occur into the private or public storm drain system or on private properties. The slopes shall be landscaped and reseeded as soon as possible after the grading operation ceases and rain events . Erosion measures shall be implemented during all construction phases in accordance with an approved erosion and sedimentation control plan and implementing proper erosion control detail techniques and completed prior to occupancy of the units within each phase of the subdivision
.
19. A
ll residential lots and public parcels shall drain to closest public street, or public parcel or approved drainage facilities as approved by the City Engineer.
20. T
he Developer shall implement Project -specific Geotechnical Recommendations Prior to issuance of any grading permits, all recommendations and specifications set forth in the project specific Geotechnical Exploration Report prepared for the proposed project shall be reflected on the project grading and foundation plans (inclusive of seismic D48
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design parameters), subject to review and approval by the City of Antioch Engineer.
21. A ll Grading, Foundation Plan Review and Construction I nspection /Monitoring Program shall be completed prior to issuance of any grading permits. The Developer/ project Applicant shall retain a design geotechnical engineering firm to review the final grading and foundation plans and specifications to evaluate whether recommendations have been implemented from the project-specific Geotechnical Exploration Report, and to provide additional or modified recommendations, as needed. Construction monitoring shall be performed by a California Registered Geologist and/or Engineer to check the validity of the assumptions made in the geotechnical investigation. Earthwork operations shall be performed under the observation of a California Registered Geologist and/or Engineer to check that the site is properly prepared, the selected fill materials are satisfactory, and that placement and compaction of the fills has been perfor med in accordance with recommendations and the project specifications.
M. CO
NSERVATION/NPDES
1. The Developer shall comply with all Federal, State, and City regulations for the National Pollution Discharge Elimination System (NPDES) (AMC§6-9). (Note: Per State Regulations, NPDES Requirements are those in affect at the time of the Final Discretionary Approval.) Under NPDES regulations, the project is subject to provision C.3: New development and redevelopment regulations for storm water treatment. Provision C.3 requires that the project include storm water treatment and source control measures, as well run-off flow controls, so that post-project runoff does not exceed estimated pre-project runoff. C.3 regulations require the submittal of a SWCP that demonstrates how compliance will be achieved. The SWCP shall be submitted simultaneously with the project plans. For the treatment and flow -controls identified in the approved SWCP, a separate Operation and Maintenance Plan (O&M) shall be submitted and approved before the Building Department will issue Certificate of Occupancy permits.
Both the approved SWCP and O&M plans shall be included in the project CC&Rs. Prior to building permit final and issuance of a Certificate of Occupancy, the applicant shall execute any agreements identified in the SWCP that pertain to the transfer of ownership and/or long- term maintenance of storm water treatment or hydrograph modification BMPs.
Already stated in COAs below, 5.c and 5.h.w.
2. Additional information regarding the project SWCP is necessary and modifications to the SWCP shown on the proposed Vesting Tentative Map may be required to comply with C.3 regulations.
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3. The following requirements of the federally mandated NPDES program shall be complied with as appropriate, or as required by the City Engineer:
a. Prior to issuance of permits for building, site improvements, or landscaping, the Developer shall submit a permit application consistent with the applicant’s approved SWCP, and include drawings and specifications necessary for construction of site design features, measures to limit directly connected impervious area, pervious pavements, self -retaining areas, treatment BMPs, permanent source control BMPs, and other features that control storm water flow and potential storm water pollutants.
b. The SWCP shall be certified by a registered civil engineer, and by a registered architect or landscape architect as applicable. Professionals certifying the SWCP shall be registered in the State of California and submit verification of training, on design of treatment measures for water quality, not more than three years prior to the signature date by an organization with storm water treatment measure design expertise (e.g., a university, American Society of Civil Engineers, American Society of Landscape Architects, American Public Works Association, or the California Water Environment Association), and verify understanding of groundwater protection principles applicable to the project site (see Provision C.3.i of Regional Water Quality Control Board Order R2 2003 0022).
c. Prior to building permit final and issuance of a Certificate of Occupancy for the first house in the subdivision, the Developer shall submit, for review and approval by the City , a final Storm Water BMP Operation and Maintenance Plan in accordance with City of Antioch guidelines.
This O&M plan shall incorporate City comments on the draft O&M plan and any revisions resulting from changes made during construction.
The O&M plan shall be incorporated into the CC&Rs for the Project.
d. Prior to building permit final and issuance of a Certificate of Occupancy for the first house in the subdivision, the Developer shall execute and record any agreements identified in the SWCP which pertain to the transfer of ownership and/or long- term maintenance of storm water treatment or hydrograph modification BMPs.
e. To prevent site drainage from draining across sidewalks and driveways in a concentrated manner, the Developer shall install curb drains under sidewalks. Collect and convey all storm water entering, and/or originating from, the site to an adequate downstream drainage facility without diversion of the watershed. Submit hydrologic and hydraulic calculations with the Improvement Plans to Engineer Division for review and approval prior to grading.
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f. Prior to issuance of the grading permit, the Developer shall submit proof of filing of a Notice of Intent (NOI) by providing the unique Waste Discharge Identification Number (WDID#) issued from the Regional Water Quality Control Board.
g. The Developer shall install appropriate clean water devices at all storm- drain inlets immediately prior to entering the public storm drain system.
Always implement Best Management Practices (BMPs).
h. The Developer shall install on all catch basins “No Dumping, Drains to River” decal buttons.
i. If sidewalks are to be pressure washed, debris shall be trapped and collected to prevent entry into the storm drain system. No cleaning agent may be discharged into the storm drain. If any cleaning agent or degreaser is used, wash water shall be collected and discharged to the sanitary sewer, subject to the approval of the sanitary sewer District.
j. Include erosion control/storm water quality measures in the final grading plan that specifically address measures to prevent soil, dirt, and debris from entering the storm drain system. Such measures may include, but are not limited to, hydro seedling, gravel bags and siltation fences and are subject to review and approval of the City Engineer. If no grading plan is required, necessary erosion control/storm water quality measures shall be shown on the site plan submitted for an on- site permit, subject to review and approval of the City Engineer. The applicant shall be responsible for ensuring that all contractors and subcontractors are aware of and implement such measures.
k. Sweep or vacuum the parking lot(s) a minimum of once a month and prevent the accumulation of litter and debris on the site. Corners and hard to reach areas shall be swept manually.
l. The Developer shall ensure that the area surrounding the project such as the streets, creek or adjacent properties stay free and clear of construction debris such as silt, dirt, dust, and tracked mud coming in from or in any way related to project construction. Areas that are exposed for extended periods shall be watered regularly to reduce wind erosion. Paved areas and access roads shall be swept on a regular basis. All truck loads shall be covered.
4. With the creation of Parcel U for drainage purposes, the Developer shall construct a drainage treatment bioretention basin and drainage detention basin to handle drainage from lots 54 to 181,205 to 234 and their adjacent street and open space drainage. This includes installation of all needed D51
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storm drain lines, grading, drainage inlets and outlet structures, drainage treatment and detention basins, wears, pathways, maintenance access roads, fencing, gates, trash racks, and any other needed improvements for the parcel to function as drainage treatment and detention basins for the entire project shown on the Vesting Tentative Map 9515.
5. Pe
r State Regulations, the Developer shall comply with all impervious surfaces including off-site roadways to be constructed as part of the project are subject to C.3, County and State requirements prior to occupancy of the first residential unit of the first phase of construction.
6. P
rior to the issuance of grading permits, the project Applicant shall prepare and submit to the City Engineering Department and Central Valley Regional Water Quality Control Board (RWQCB), a SWPPP detailing measures to control soil erosion and waste discharges during construction.
The SWPPP shall include an erosion control plan, a water quality monitoring plan, a hazardous materials management plan, and postconstruction BMPs.
a. De
sign Details.
i. T
he Developer shall prevent any residential lot drainage from draining across other residential lots, private sidewalks, and driveways in a concentrated manner.
b. On-G
oing Maintenance.
i. T
he Developer shall clean all on-site storm drain facilities a minimum of twice a year, once immediately prior to October 15 th and once in January. Additional cleaning may be
required if found necessary by City Inspectors and/or City Engineer.
N. FINAL SUBDIVISION BO ND REQUIREMENTS
1. A
s stated above the Developer may file a large lot master final Map subdividing the original acquired 96.5 acres into maximum of 13 parcels or first final map based substantial conformance with the Vesting Tentative Map 9515 prepared on Sept 23, 2022 received by the Community Development Department and shall be in compliance to these conditions of approval and mitigations measures of this approved “The Albers Property subdivision 9515” project prior to recording the first final map of the individual residential lot subdivision. All residential lots shall be included in not more than six (6) large parcels to be constructed in three subsequent phases.
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2. These subsequent subdivision final maps shall be submitted to subdivide the large lots into individual residential lots within each phase of development.
The large final map is intended for the subdivision of parcels for phasing, shall include all the required information described in Title 9, Chapter 4, Article 5: Final Maps, of the Antioch Municipal Code, including, but not limited to:
a. I
mprovement security shall be in one of the following forms:
i. B
ond or bonds issued by one or more duly authorized
corporate securities in an amount equal to 100% of the
total estimated costs of the improvements for faithful performance, and in an amount equal to 100% of the
total estimated costs of the improvements for labor and materials.
ii. A
deposit, either with the City or a responsible escrow
agent or trust company, at the option of the City
Engineer, of money or negotiable bonds of the kind
approved for securing deposits of public moneys, in the amounts and for security as specified above, to be
released in the same manner as described above for
bonds.
A
n irrevocable letter of credit in form acceptable to the City Attorney issued by a financial institution acceptable to the City Attorney in an amount equal to 100 percent
of the total estimated costs of the improvements for
faithful performance, no part thereof to be released
until such time as specified by state law.
b. A
n original, signed subdivision agreement, to be executed by the subdivider or his agent, guaranteeing the completion of the construction of the improvements required by the governing body within a specified time and payment therefore, satisfactory to the City engineer and City Attorney as to legality and satisfactory to the City Engineer as to amount.
c. A
letter from the Tax Collector showing that all payable taxes have been paid and a bond for the payment of taxes but not yet payable, as required by the Subdivision Map Act.
d. A
cash payment, or receipt therefore, of all the fees required for the checking and filing of the maps and the inspections of the construction; payment for the street signs to be furnished and installed by the City, if required by the subdivider; a cash deposit for D53
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the payment of such fire hydrant rental fees as may be established by the respective fire districts or water company or district having jurisdiction; and any other applicable fees or deposits. e. D
eeds for the easements or rights-of-way for road purposes map. f. W
ritten evidence acceptable to the City, in the form of rights of entry or permanent easements across private property outside the subdivision, permitting or granting access to perform the necessary construction work and permitting the maintenance of the facility. g. A
greements acceptable to the City , executed by the owners of existing utility easements within the proposed roads rights -of-way, consenting to the dedication of roads or consenting to the joint use of the rights-of-way as may be required by the City for the purpose use and convenience of the roads.
h. A
surety bond acceptable to the City, guaranteeing the payment of the taxes and assessments which will be a lien on the property, as set forth in the Subdivision Map Act, when applicable.
i. P
ayment of map maintenance fee.
j. A
preliminary soil report, prepared by a civil engineer who is registered by the state, based upon adequate test borings or excavations of every subdivision, as defined in Cal. Gov't Code §§ 66490 and 66491.
The preliminary soil report may be waived if the City Engineer shall determine that, due to the knowledge of such department as to the soil qualities of the subdivision, no preliminary analysis is necessary.
O. MITIGATION MONITORING AND REPORTING P ROGRAM
1. T
he Developer shall comply with all mitigation measures identified in the Mitigation Monitoring and Reporting Program provided in the CEQA approval documentation.
P. CONTRA COSTA COUNTY FLOOD CONTROL
1. D
eveloper shall comply with the three Recommended Conditions of Approval stated in the email dated August 22,2023, to Kevin Scudero of City of Antioch from Alexander Zandian, Staff Engineer, Contra Costa County Flood Control, listed below as follows:
a. T
he Developer shall pay Drainage Area 130 fees prior to filing the first final map of tentative Map 9515.
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b. The Developer shall apply for and obtain a Flood Control (FC) District Encroachment Permit for any work planned within the FC District’s right-of-way, including slope easements, or any work that affects the FC District’s right-of-way.
c. If th
e Developer is unsuccessful in securing access for extension of Hilcrest Avenue for construction of the project, and a roadway crossing the dam and across the eastern edge of the basin is ultimately needed for access to the development could be an acceptable alternative. The Developer shall provide conceptual access exhibits to the County Public works department for review, including grading plans for the FC District’s review and consideration. The FC District, in conjunction with the State of California Division of Safety of Dams (DSOD), will consider the possible impacts of the grading and operation of this temporary roadway, and determine if a sale of access rights to this development is in the public interest.
Q. PROJECT SPECIFIC CO NDITIONS
1. A
ll private streets shall have five-foot (5’) wide sidewalks with concrete curbs and gutters located on both sides of the street to the satisfaction of the City Engineer. Rolled or battered curbs shown on the Vesting Tentative Map 9515 are not approved by the City Engineer and shall be redesigned using City standards plans and presented to the City for approval prior to submittal of any improvement plans.
2. If t
he adjacent Creekside Development, Tentative Map 9501 (APN 057- 050-024), does not develop before this Project starts construction, the City shall cause the owner of the Creekside Development to convey to Developer 112 feet of the Hillcrest Avenue right of way and Developer shall construct those roadway improvements not yet constructed as described as the “Revised Hillcrest Improvements” in that certain Settlement Agreement entered into between City and GBN Partners, LLC, as of January 31, 2022. In such event that Developer is obligated to construct such improvements, Developer shall fully construct the access road and concrete sidewalk of Hillcrest Road from Sand Creek Road to “I” street as described in the Revised Hillcrest Improvements prior to the issuance of the 1st Building Permit of the subdivision. These improvements shall be subject to the requirements of the reimbursement obligations as described in Condition Q.4 below.
3. T
he Developer shall construct a minimum 21-foot-wide paved EVAE from Deer Valley Road to the project looped street (south) . This shall be designed and constructed to the satisfaction of CCCFPD and as approved by the City Engineer prior to construction of the 75th building permit of the first phase of construction. The Developer shall install 21-foot-wide D55
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temporary access roads to paved streets in P hases 1 and 2 prior to construction of any residential homes within each Phase.
4. If t
he adjacent Creekside Development, Tentative Map 9501, does not develop prior to the Project , City shall either require the Creekside developer to either enter into a reimbursement agreement with Developer or establish a benefit district consistent with the Settlement Agreement referenced in Condition 2, above, for the fair share reimbursement to this Developer for the design and construction of improvements benefiting the adjacent properties (APNs 057- 050-024 & 057- 042-006), including without limitation the reimbursement for the fair share cost of design and construction costs of the extension of Hillcrest Avenue, ‘I’ street, 12- inch waterline, 8-inch Sanitary sewer line and creek crossing, storm drain lines in Hillcrest Avenue and other wet and dry utilities benefiting the Creekside development (including all items listed in Sections Q.2 and Q.4). Total costs of these improvements shall be submitted to the City in a benefit district report after completion of construction and fair share amounts shall be determined and approved by the City Engineer and taken to City Council for approval and recordation.
5. T
he Developer shall construct 10-foot-wide paved trail system/pathways with asphalt or concrete.
6. F
encing around stormwater detention basin, Parcel ‘U’ shall be wrought iron fencing or as approved by the City Engineer.
7. A
ll park landscaping, equipment and materials are to follow current City standards or as approved by the City Engineer and be constructed prior to the first building permit in the first phase of development.
8. P
rovisions for mail delivery and locations of mailbox facilities shall be reviewed by the USPS and approved by the City Engineer prior to the approval of each final map . The Developer shall install an approved mailbox facility for mail delivery of the future residential lots at locations reviewed by the USPS and the City Engineer prior to the approval of each final map and improvement plans. These mailbox facilities shall be installed with the construction of residential units within each phase of the subdivision.
9. D
eveloper shall prepare and submit Signing and Striping Plans using the latest version of the MUTCD and Caltrans Standard Plans of Pavement Markers and Traffic Lines Typical Details as depicted in the standard plan A20 and A24 and the latest version of the California MUTCD’s standards.
The striping shall be compliant with the latest version of Caltrans Standard Plans A90 series of plan sheets. Lane widths to be finalized through Signing and Striping Plans subject to approval by the City Engineer. All D56
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striping of paved streets shall be completed prior to occupancy of the first unit within each phase of development.
10. T
he Developer shall design and submit a street light photometric analysis and street light layout plan of the placement of streetlights at every 180 to 200 feet per St -18 City standard plans. The improvement plan submittal shall include the photometric calculations for average, minimum, maximum, and uniformity illuminance values for the street to the satisfaction of the City Engineer. All streetlights shall be constructed with the construction of road system of each phase and installed prior to the first residential unit with each phase of development.
11. T
he Developer shall prepare a construction traffic control plan and construction phasing plan be submitted for review and approval with the improvement plans by the City engineer. All Street improvements for access to the first phase shall be fully completed prior to occupancy of the first building permit of that phase a s approved by the City Engineer and implemented prior to start of construction.
12. The Developer shall design and submit an on-site, street light Photometric Analysis Plan of the placement of streetlights 180 to 200 feet spacing per St-18 City standard plans in the corridor that include the photometric calculations for average, minimum, maximum, and uniformity illuminance values for the street to the satisfaction of the City Engineer. All streetlights shall be constructed with the road system of each phase and installed prior to the first residential unit with each phase of development.
13. A
construction traffic control plan shall be submitted for approval with the improvement plans for approval by the City . All Street improvements for access to the first phase of building permits shall be fully improved prior to the first building permit along street improvements as approved by the City Engineer and implemented prior to start of construction of each phase of developme
nt.
14. O
n all private lanes/streets/drives, consistent with California Fire Code standards, the Developer shall post CAMUTD R26 “no parking signs” every 300 feet or install red curb (fire lane) that will be enforced by the subdivision HOA(s) and install prior to occupancy of the residential unit within each phase of development.
A
ll curb ramps shall be designed and construct ed per current ADA standards on the corners of the intersections or as approved by the City Engineer.
15. T
he Developer shall consult with the project geotechnical engineer in determining the pavement section thickness by testing the existing soil and conduct the standard state of California (Caltrans) R tests based on D57
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Traffic index provided by the City and provide a pavement section based on the test results to the City for review. The minimum pavement section shall be as follows:
a. P
ublic Streets (‘I’ Street): width of 60 -foot, TI = 6, and four-inch (4”) AC over 12-inch Class II AB.
b. P
rivate Streets (Streets labelled ‘A,’ ‘B,’ ‘C,’ ‘D,’ ‘E,’ ‘F’, ‘G’ and ‘H’):
widths may vary subject to the approval of the City Engineer, TI = 6, four-inch (4”) and AC over 12-inch Class II AB.
c. Hillc
rest Ave shall have a minimum traffic index (TI) of 8 and a minimum pavement thickness of six-inch (6”) AC over 16-inch Class II AB.
16. T
he Developer shall comply with all recommendations from the Project Traffic Impact Analysis (TIA) and Environmental Impact Report (EIR) by making the following improvements.
a. If not constructed by another party , the Sand Creek Road/Hillcrest Avenue traffic signal shall be modified to add a fourth leg to the traffic signal by modifying the traffic si gnal, constructing traffic related modifications such as traffic lane transitions, bike lanes, left and right turn lanes as identified in the TIA , add additional curb returns, ADA ramps, crosswalks, signage and striping, pedestrian signals to the satisfaction of the City Engineer.
17. A
ll park equipment, plant materials and irrigation system shall follow current City standards as approved by the City Engineer.
18. No
in-between lot gate openings shall be allowed for ingress/egress or utility crossings.
19. A
s recommended by the Parks and Recreation Commission, the following conditions shall apply:
a. The “private park” shall meet all the City’s Park Design Standards current at the time of the park’s construction.
20. If not completed by previous developer, the r ight-of-way of the existing access road for PG&E electrical sub- station shall be vacated by Pacific Gas & Electric (PG&E) for the construction and dedication of the future Hillcrest Avenue to be used as the new access to their existing substation facility at no cost to the City.
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R. PRIVATE STREET IMPROVEMENTS
1. T
he Developer shall prepare the design and construct all private street s, trails, access easements, dry utilities, grading and drainage, sewer, water, storm drainage , project improvements and dedications as shown in Tentative Map 9515 dated September 22, 2022 prepared by CBG Engineers (job no 1319-30).
S. CONSTRUCTION P HASING
1. T
he Developer shall submit a phasing plan for the entire proposed residential development of the project to the Engineering and P lanning Departments prior to submittal of any improvement plans , reports, construction documents and final maps to the City for review. The phasing plan shall provide an implementation schedule that will be in compliance with these conditions of approval. The proposed phasing plan shall include rough grading, installation of the various back bone sewer, water and drainage, and dry utilities, and roadway improvements needed for the entire project development. It will also consist of those improvements that could be constructed within each phase of development of various residential lots. These phasing plans shall be part of the first set of improvement plans for review and approved by the City Engineer prior to the issuance of any building or site improvement permits.
D59
CITY OF ANTIOCH
PLANNING COMMISSION
REGULAR MEETING
Regu
lar Meeting November 20, 2024
6:30 p.m. City Council Chambers
1. CALL T
O ORDER
Chair
person Riley called the meeting to order at 6:30 P.M. on Wednesday, November 20, 2024, in Council Chambers.
2. ROLL
CALL
Pres
ent: Commissioners Jones, Lutz, Martin, Vice Chairperson Webber and Chairperson Riley
Absent: Commissioner Hills
Staff
: City Attorney, Thomas Lloyd Smith
Assistant City Attorney, Brittany Brace
Acting Director of Community Development, Kevin Scudero Planning Manager, Zoe Merideth
Contract Planner, Cindy Gnos
Contract Engineer, Kevin Van Katwyk
Minutes Clerk, Kitty Eiden
3. PLE
DGE OF ALLEGIANCE
Chair
person Riley led the Pledge of Allegiance.
4. PUBLI
C COMMENT – None
5. CONSE
NT CALENDAR
5-1. DR2023-0010 | Wild Horse Extension | Eastern End of Wild Horse Rd. - The applicant is seeking a five- year extension of a previously approved Vesting Tentative Subdivision Map (VTSM 357- 302-20) for condominium purposes, Final Development Plan, and Design Review standards for a 126 multifamily unit residential community and associated improvements on an 11.72-acre project site, known as The Wild Horse Multifamily project.
On mot
ion by Commissioner Martin , seconded by Commissioner Jones the Planning Commission members present unanimously approved Consent Calendar Item 5 -1. The motion carried the following vote:
AYES: Jo
nes, Lutz, Martin, Webber, Riley
NOES: None
ABSTAIN: None
ABSENT: Hills
ATTACHMENT "E"
E1
Planning Commission
Regular Meeting
November 20, 2024 Page 2 of 7
6. CONTINUED PUBLIC HEARING
6-1. GP-19-04, MDP-19-01 | Albers Ranch | East of Deer Valley Rd - The project applicant, Lucia Albers, is seeking approval of the Albers Ranch Project, consisting of 294 single- family units, future development of an assisted living facility, and neighborhood commercial uses and 49.1 acres of open space. Project Location:
East of Deer Valley Road/Deer Hill Lane intersection / APNs 057- 042-006, 057- 050-021
Acting Director of Community Development Scudero introduced Contract Planner Gnos who presented the staff report dated November 20, 2024, recommending the Planning Commission 1) Adopt the resolution recommending City Council certification of the Albers Ranch Project EIR, adopting findings of fact and statement of overriding considerations, and adopting the mitigation monitoring and reporting program. 2) Adopt the resolution recommending City Council approval of a General Plan Amendment to amend the City of Antioch General Plan (GP-19-04). 3) Adopt the resolution recommending City Council approval of an ordinance rezoning the property to HPD and adopting the Master Development Plan (MDP -19-01). 4) Approve the resolution recommending City Council approval of a Vesting Tentative Subdivision Map and a Resource Management Plan
Joel Keller representing Albers Ranch, thanked the Commission and staff. On behalf of the applicant, he requested modifications to conditions of approval J-5 and J-6, noting the sewer and roadway for the Aviano project lacked a nexus to their project so they believe there should be no obligation to participate in the improvement agreements. Additionally, he noted conditions Q-1 and Q -3 required the construction of emergency vehicle access and they disagreed that curb and gutter were necessary elements of the EVA Road. He proposed an alternati ve with variable slopes to carry water away from the roadway. He requested the Planning Commission adopt the resolutions subject to the modification of conditions J5, J6, Q1 and Q3.
Lucia Albers, Applicant, provided the Planning Commission with written comments and read it into the record. Her comments included a history of her project and her appeal for several conditions of approval.
Chairperson Riley opened the public comment period.
Eric Haynes, Business Representative with Sheet Metal Workers Local 104, requested the Planning Commission support the Albers Ranch project.
Ray Devlin representing Colliers, stated he was assisting the applicant in the sale of the property to a home builder. He discussed the park amenities planned for the hillsides and requested the City allow for a park in lieu fee credit for that work.
Laura Kindsvater, Antioch resident, stated this property would benefit from having more than 70% native plants with the majority being keystone species to support pollinators and other wildlife.
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Debbie Toth representing Choice in Aging/Bedford Center, spoke in support of the project particularly the assisted living facility noting it would help prevent homelessness for the aging population in Antioch. She urged the Planning Commission to support the project.
Chairperson Riley closed the public comment period.
In response to Commissioner Martin, Contract Planner Gnos identified the neighborhood commercial and assisted living parcel.
Commissioner Martin commented that current market demand indicated the need for this type of product, and it would assist the City in meeting their RHNA numbers.
In response to Commissioner Martin, Contract Planner Gnos stated the development would be private; however, gates were not proposed at this time. She explained when the Aviano project was approved the City required that they dedicate an irrevocable offer of dedication allowing access to the Alber’s property because they wanted a secondary access option. She noted the road traveled up through parcel “Y” along the Contra Costa County Flood Control to Sand Creek, and the sewer connection could also be in the area, which was why they had reimbursement agreements. She noted there was an irrevocable offer of dedication so if the subdivision could not come to an agreement with Creekside, they still had options for secondary access and sewer connection.
Commissioner Martin stated he did not support a project of this size having only one access and expressed concern the west access was only for emergency vehicles.
Contract Planner Gnos explained that the curb and gutter were required on the EVA road because that was shown on the tentative map.
Contract Engineer, Kevin Van Katwyk, speaking to the EVA road, explained that Acting Director of Public Works/City Engineer Buenting wanted to keep the curb and gutter on the downhill side and a vertical curb on the uphill side. He confirmed the road would be built to City standards.
In response to Commissioner Martin, Acting Director of Community Development Scudero clarified that the Planning Commission would determine compliance with the state water efficient landscape ordinance when the builder came back with their detailed landscape plan. He noted condition H-5 encouraged the use of local and native plant species. He noted Council provided direction to staff to advance a native plant ordinance; however, at this time there was no requirement for a certain percentage of native plant species.
In response to Commissioner Webber, Ms. Alber’s confirmed they had a project labor agreement with the union.
In response to Commissioner Jones, Acting Director of Community Development Scudero confirmed that the Assisted Living project had not been separated out; however, the applicant had not submitted a specific site plan or development plan for that parcel. He explained that the E3
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development standards and the environmental review had been established for the site so when that project is brought forward it would go through the use permit design review process.
In response to Commissioner Jones, Ms. Albers stated that they estimated approximately 100 individuals would be housed at the assisted living facility. She commented that flood control had blocked access to the road going to the Aviano project. She noted they shared the cost of the utilities and road with the Creekside developers.
In response to Commissioner Jones, Acting Director of Community Development Scudero explained that legal counsel had reviewed the developer’s objections to conditions of approval J-5 and J-6, and determined that the conditions needed to remain.
In response to Commissioner Jones, Ms. A lbers stated they were requesting a waiver of park fees since they had acres of open space plus trails that would be maintained through Covenants, Conditions and Restrictions (CCRs) and they also had an onsite park for residents.
In response to Commissioner Lutz, Contract Planner Gnos stated there had been no changes in state law that would impact the R esource M anagement Plan. She emphasized that the mitigation measures outlined in the Environmental Impact Report (EIR) were strong and would be implemented proficiently. Acting Director of Community Development Scudero explained if the City determined that the applicant did not benefit from the reimbursement agreements, they would not incur costs. He added that reimbursement agreements were legal agreements that needed to remain. He explained that there were many factors that led to the delay in bringing this project forward and reminded the Commission to focus on the entitlement before them.
In response to Commissioner Lutz, Ms. Albers stated that since the project was secluded, they determined a private gated entry was not necessary and for marketability they removed the age restriction.
Acting Director of Community Development Scudero added the environmental analysis done for this entitlement was for a non-age restricted community.
Ms. Albers gave a history of their efforts to advance their project through the development process. She thanked City staff and her team who helped bring this project before the Planning Commission this evening.
Assistant City Attorney Brace reminded the Commission if there was going to be additional testimony, the public hearing needed to be reopened.
In response to Commissioner Jones, Mr. Keller stated market conditions would determine when the project in its totality goes forward; however, it was the applicant’s intent to develop the property, as soon as possible.
Chairperson Riley commented that the City charged park fees for all developments and they were community based to support all City parks.
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In response to Chairperson Riley, Contract Engineer Kevin Van Katwyk added that the EVA road was too steep for a fully developed roadway. Acting Director of Community Development Scudero added that it was also not envisioned for pedestrian and bicycle access.
Jason Vogan, Project Engineer, stated they had analyzed different alternatives for the project, and determined that they did not want to encourage access to Deer Valley Road prior to improvements because it would be unsafe. He noted that the traffic impact analysis for the project analyzed traffic going to Hillcrest Ave. and found it to be adequate for City standards.
Chairperson Riley stated it was unfortunate that there was not another access point to the project; however, if the EVA road remained unrestricted, it could be used in the event of a wildfire in the area.
Commissioner Jones stated she like d the project, especially the assisted living facility. She stated she hoped it would get built as soon as possible. She stated she did not support the applicant’s objections to the conditions of approval.
Commissioner Martin congratulated the applicant for bringing their project forward for consideration.
On motion by Commissioner Martin , seconded by Commissioner Jones the Planning Commission members present unanimously adopted the resolution of the Planning Commission of the City of Antioch recommending the City Council certify the environmental impact report for the Albers Ranch Project (SCH#2021200264) as adequate for addressing the environmental impacts of the propose d project and adopt California Environmental Quality Act Findings of Fact, Statement of Overriding considerations, and a mitigation monitoring and reporting program. The motion carried the following vote:
AYES: Jones, Lutz, Martin, Webber, Riley
NOES: None
ABSTAIN: None
ABSENT: Hills
On motion by Commissioner Martin , seconded by Commissioner Jones the Planning Commission members present unanimously adopted the resolution of the Planning Commission of the City of Antioch recommending the City Council approval of a General Plan Map and Text Amendment amending the land Use Designation for the Albers Ranch Project from Hillside, Estate and Executive Residential/Open Space and Commercial/Open Space to Medium Low Density Residential/Open Space and Commercial/Open Space and amendments to the General Plan text to the Sand Creek Focus area of the General Plan to add the Albers Ranch Sub Area to the Sand Creek Focus Area. The motion carried the following vote:
AYES: Jones, Lutz, Martin, Webber, Riley
NOES: None
ABSTAIN: None
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ABSENT: Hills
On motion by Commissioner Martin, seconded by Commissioner Lutz the Planning Commission members present unanimously adopted the resolution of the Planning Commission of the City of Antioch recommending City Council approval of an Ordinance to rezone to Hillside Planned Development for the Albers Ranch Project. The motion carried the following vote:
AYES: Jones, Lutz, Martin, Webber, Riley
NOES: None
ABSTAIN: None
ABSENT: Hills
On motion by Commissioner Martin , seconded by Commissioner Jones the Planning Commission members present unanimously adopted the resolution of the Planning Commission of the City of Antioch recommending City Council adoption of the Vesting Tentative Subdivision Map, Master Development Plan (MDP -19-01), and Resource Management Plan for the Albers Ranch Project. The motion carried the following vote:
AYES: Jones, Lutz, Martin, Webber, Riley
NOES: None
ABSTAIN: None
ABSENT: Hills
7. NEW PUBLIC HEARING
7-1 LA2024-0005 | State Density Bonus Law Ordinance Update | Citywide - The City of Antioch is proposing to repeal and replace Title 9, Chapter 5, Article 35 of the Antioch Municipal Code, Density Bonus Program. The zoning text amendments will ensure compliance with State law, outline application and approval procedures, and include development standards for affordable units constructed under the ordinance.
Acting Planning Manager Merideth presented the Memorandum to the Planning Commission dated November 20, 2024, recommending the Planning Commission continue this item to the regularly scheduled Planning Commission meeting of December 4, 2024.
Chairperson Riley opened and closed the public comment period with no members of the public requesting to speak.
On motion by Commissioner Martin , seconded by Commissioner Jones the Planning Commission members present unanimously continued LA2024 -0005 | State Density Bonus Law Ordinance Update | Citywide to December 4, 2024. The motion carried the following vote:
AYES: Jones, Lutz, Martin, Webber, Riley
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NOES: None
ABSTAIN: None
ABSENT: Hills
8. ORAL/WRITTEN COMMUNICATIONS - None
9. COMMITTEE REPORTS
Commissioner Jones reported on her attendance at the TRANSPLAN Committee meeting and announced additional information was available on the TRANSPLAN website. She encouraged everyone to participate in the Study and Survey. She announced there would be a public meeting at 6:30
P.M. on December 3, 2024, at Los Medanos College.
10. NEXT MEETING: December 4, 2024
Chairperson Riley announced the next Planning Commission meeting would be held on December 4, 2024.
11. ADJOURNMENT
On motion by Commissioner Martin, seconded by Commissioner Jones, the Planning Commission members present unanimously adjourned the meeting at 8: 09 P.M. The
motion carried the following vote:
AYES: Jones, Lutz, Martin, Webber, Riley
NOES: None
ABSTAIN: None
ABSENT: Hills
Kitty Eiden
KITTY EIDEN, Minutes Clerk
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From: Laura Kindsvater
To: Planning Division
Subject: Item 6-1 (Albers Ranch) for November 20 Planning Commission meeting Date: Tuesday, November 19, 2024 12:32:05 PM
CAUTION: This email originated from outside your organization. Exercise caution when opening attachments or clicking links, especially from unknown senders.
Dear Planning Commissioners and Staff:
I would like to see more than 70 percent plant species that are native to Antioch or California, with the majority of plants
to be keystone species that are locally native, incorporated into the landscaping within parks, developed areas, and open space for the Albers Ranch project.
I would also like to see the development plans created to incorporate Sand Creek as an amenity. Similar to the developments in the City of Brentwood’s Three Creeks project, where possible, face the houses toward the creek; provide trails from which people can view the creek; and incorporate parks, pocket parks, and/or picnic tables near the creek so people can enjoy the creek and its wildlife. See https://www.ccrcd.org/marsh-creek-watershed for more
information.
As you know, pollinators and insects are in trouble. And humans need pollinators to provide the majority of the food that we consume, and other insects are the foundation of the food webs and ecosystems that humans rely on.
Pollinators are required to grow cherries, peaches, tomatoes, avocados, apples, almonds, walnuts, oranges, peppers, potatoes, and so many other foods, all of which are grown either less than 100 miles of here or in the state of California.
Pollinators are also required to pollinate the forage that chickens and beef eat, too, so if we lose pollinators, we won’t have chicken, beef, or dairy products to eat either. More information is available at https://www.scientia.global/pollinator-decline-implications-for-food-security-environment/ .
Please shape the landscaping plans to include more than 70 percent native plants, with an emphasis on keystone native plants that support pollinators (butterflies, moths, bees, etc.), birds, and other wildlife (many of which need insects, etc. as a food source).
Wildlife in California has declined by 20 percent, and at least 600 species in California are endangered.
Two of the top reasons why pollinators and wildlife in general are in decline are habitat loss and pesticide use.
Why is it important to landscape with locally native plants that are keystone species? Because life depends on it.
Local birds and pollinators need our help. They are in severe decline because “traditional” landscape that is filled with exotic ornamentals is a “dead zone” for nature. Why? Because most insects need the native plants they have evolved with to thrive and reproduce. Birds, in turn, need insects, especially caterpillars, to feed their young.
For more information on why it is critically important to use keystone plant species that are locally native in landscaping, please visit https://www.bringingbackthenatives.net/douglas-tallamy-resources and https://www.bringingbackthenatives.net/keystone-species-signs.
Please redo the landscaping plans so that they use locally native plants that are keystone species. You can find a list of what plants would be appropriate at https://www.bringingbackthenatives.net/wp-content/uploads/2020/04/Best- Plants-for-Bay-Area-Gardens-Marshall.pdf.
You can also find out what plants are native to the project site and what types of wildlife each plant supports by visiting https://calscape.org/
.
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A City of Santa Monica nine-year study found that native plant gardens are cost-effective, environmentally beneficial, and easy to replicate. The city studied a native plant garden versus a traditional garden and documented that the native plant garden used 83 percent less water, generated 56 percent less green waste, and requires 68 percent less maintenance than the traditional garden. More information is available at https://www.smgov.net/uploadedFiles/Departments/OSE/Categories/Landscape/garden-garden-2013.pdf .
Antioch has a rich heritage of biodiversity and is worthy of our efforts to support and restore that biodiversity. The people of Antioch deserve projects that support pollinators, upon which we all depend, and other wildlife.
Thank you.
Laura Kindsvater
Antioch resident
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Albers Ranch Project
City Council
January 28, 2025
#5.02
Project Location
Project Location
• The Antioch General Plan currently designates the site as Hillside, Estate and Executive Residential/Open Space, and Commercial/Open Space.
• The project site is currently zoned Study Zone (S).
• The project site is surrounded by:
• Upper Sand Creek Basin and Antioch School District to the north; • Undeveloped land (Creekside/Vineyards at Sand Creek Project) to the east; • Undeveloped farmland to the south; and
• Rural single-family residential development to the west. • The City of Antioch received an application from Lucia Albers (applicant) for the development of 294 single-family units, future development of an assisted living facility, neighborhood commercial uses, and 49 acres of open space. • Development of the proposed project requires City approval of:
• Environmental Review (Environmental Impact Report);
• General Plan Amendment;
• Master Development Plan/Rezone;
• Vesting Tentative Subdivision Map; and
• Resource Management Plan.
• Project applicant is not requesting Design review at this time.
Proposed Project
General Plan Amendment
• The Sand Creek Focus Area allows single-family detached housing with lot sizes ranging from 7,000 square feet to 10,000 square feet and allows smaller lots for age-restricted senior housing.
• The proposed project includes minimum lots ranging from 3,600 square feet (45’ x 80’) to 4,500 square feet (50’ x 90’) and is not restricting the development to senior housing. • Proposed General Plan Map Amendment from Hillside, Estate and Executive Residential/Open Space and Commercial/Open Space to Medium Low Density Residential (MLDR)/Open Space and Commercial/Open Space.
• Proposed General Plan Text Amendment to add the Albers Ranch Sub Area to the and Creek Focus Area.
Master Development Plan/Rezone
• Rezone from Study Zone (S) to Hillside Planned Development (HPD), subject to a Master Development Plan.
• The Master Development Plan and HPD would establish the development standards applicable to the project site, including setbacks, lot sizes, and building heights for the single-family residential subdivision.
• The future assisted living facility and neighborhood commercial land uses would be required to comply with the Citywide Zoning Ordinance and would be determined through a future Conditional Use Permit.
Vesting Tentative Subdivision Map
Resource Management Plan
• In compliance with the Antioch General Plan a Resource Management Plan has been prepared for the proposed project.
• Outlines objectives and policies as they relate to biological resources. The overall objective is to preserve natural streams and other habitats that support special-status plant and animal species.
Environmental Review
• The City prepared an Environmental Impact Report (EIR) and Mitigation Monitoring and Reporting Program (MMRP) to evaluate the potential environmental impacts of the Project.
• The Draft EIR includes mitigation measures for the following technical chapters:
• Air Quality and Greenhouse Gas Emissions;
• Biological Resources;
• Cultural Resources;
• Geology and Soils;
• Hazards and Hazardous Materials;
• Hydrology and Water Quality;
• Noise;
• Transportation; and
• Tribal Cultural Resources.
Environmental Review
• Significant and unavoidable impacts would persist even with mitigation measures for the following impacts:
• Air Quality and Greenhouse Gas Emissions; and
• Transportation.
• Findings of fact and statement of overriding considerations (FOF/SOCs) have been prepared.
Planning Commission Actions
• On November 20, 2024, the Antioch Planning Commission held a public hearing regarding the proposed project.
• The Planning Commission asked City staff questions ranging from the proposed emergency vehicle access and the need for assisted living housing in the City. • The City received four public comments of support for the project. • Upon close of the public hearing, the Planning Commission recommended City Council approval for all the requested entitlements.
City Council Actions
The Planning Commission recommends that the City Council:
1. Adopt the resolution certifying the Albers Ranch EIR, adopting the FOFs/SOCs, and the MMRP .
2. Adopt the resolution approving the General Plan Map and Text Amendments.
3. Introducing and waiving the first reading of the ordinance rezoning the property HPD and adopting the Master Development Plan.
4. Approve the resolution approving the Vesting Tentative Subdivision Map and a Resource Management Plan subject to the conditions of approval.
LIMITS OF REIMBURSEMENT AGREEMENT
LIMITS OF AVIANO SEWER
REIMBURSEMENT AGREEMENT
ALBERS SEWER CONNECTION
POINT (WITH CREEKSIDE)
ALBERS PROJECT ACCESS IS
OFF HILLCREST AVE, NOT SAND
CREEK RD
CITY OF
ANTIOCH
CALIFORNIA
STAFF REPORT TO THE CITY COUNCIL
DATE: Regular Meeting of January 28, 2025
TO: Honorable Mayor and Members of the City Council
SUBMITTED BY: Zoe Merideth, Planning Manager ZM
APPROVED BY: Kwame P. Reed, Assistant City Manager/Acting Community� Development Director
SUBJECT: AMPORTS Development Agreement (UP-20-14, AR-20-18, V-21-04)
RECOMMENDED ACTION
It is recommended that the City Council introduce, read by title only and waive further reading of an ordinance approving the proposed Development Agreement between the City of Antioch and APS West Coast, Inc. for the AMPORTS project.
FISCAL IMPACT
Approval of the Development Agreement would result in additional revenue to the General Fund through the payment of an occupied truck trip fee. Based on the maximum number of vessels allowed by the Planning Commission's approval, the project will generate up to $100,000 revenue in truck trips.
DISCUSSION
Background
On September 1, 2021, the Antioch Planning Commission adopted Resolution 2021-20 approving an Initial Study/Mitigated Negative Declaration and Mitigation Monitoring and Reporting Program and Resolution 2021-21 (Included as Exhibit B of the Development Agreement) approving a Use Permit, Design Review, and Variance to develop an automotive logistics and processing facility for vehicles prior to their distribution to dealerships. The project included the conversion and upgrade of the existing wharf for roll on/roll off operations, construction of a new building, and new site improvements - including new paving, stormwater improvements, and fencing. The project is located at 2301 Wilbur Avenue (APNs 051-020-006 and 051-020-012).
After receiving the Project Approvals, the Developer obtained building permits and invested significant funds to construct the Pier Upgrades at 2301 Wilbur Avenue. The applicant has not constructed the "upland" improvements which were entitled, including the new building, and site improvements, such as paving. 6 Agenda Item #
Antioch City Council Report
January 28, 2025 Agenda Item # 6 2
Development Agreement
Development agreements are contracts negotiated between project proponents and public agencies that govern the land uses that may be allowed in a particular project. Title 9, Chapter 5. Article 32 of the Antioch Municipal code authorizes the City of Antioch to enter into Development Agreements pursuant to the authority contained in Cal. Gov't Code §§ 65864 et seq.
Analysis
The intent of the proposed Development Agreement is to allow the Developer to begin moving cargo through the pier while postponing the construction of most upland Improvements identified in the Project Approvals until the Project can demonstrate the financial viability of the site for cargo shipping. The “Initial Improvements” identified in Section 2.5.1 of the Development Agreement (found in Attachment A) will be constructed within thirty (30) days of execution of this Agreement. These include improvements such as the installation of stop signs and implementation of a parking lot sweeping program.
The “Operational Improvements” identified in Section 2.5.2 of the Development Agreement will be constructed by the earlier of the fourth year following the Effective Date of the agreement or the berthing of the 33
rd vessel. These improvements include the
construction and signing and striping of the parking lot. These are conditions that the City required in the project entitlements to improve the site, but the site is still able to function with these improvements deferred. The new building is not required to be constructed, but should it be, the improvements associated with it (e.g. undergrounding of utilities) will be required to be constructed as well.
The benefits provided to the City in this agreement are the payment of a Truck Trip Fee as described in Section 2.6 of the Development Agreement. The Developer is obligated to pay a fee of $50.00 per occupied car carrier truck trip. The Developer will prov ide payments to the City quarterly along with a quarterly report detailing the number of vehicles stored at the site and the number of car carrier trips. Based on the maximum number of vessels allowed by the Planning Commission’s approval, the applicant estimates up to 2,000 truck trips per year.
PLANNING COMMISSION ACTION
On December 4, 2024, the Antioch Planning Commission held a public hearing regarding the proposed Development Agreement. There were no comments from the public. The Commission asked staff and the applicant about operations at the site, how many potential jobs there may be and the environmental approvals for the project. Upon close of the public hearing, the Antioch Planning Commission voted 5- 0, with two Commissioners absent, to recommend City Council approval of the proposed ordinance.
A copy of the draft December 4, 2024 Planning Commission Meeting Minutes are included as Attachment B to the staff report.
Antioch City Council Report
January 28, 2025 Agenda Item # 6 3
ENVIR
ONMENTAL REVIEW
The Antioch Planning Commission approved an Initial Study/Mitigated Negative Declaration (IS/MND) for the project on September 1, 2021. The current request for approval of a Development Agreement would not create any new potentially significant environmental impacts for the project.
ATTACHM
ENTS
A. Proposed Ordinance
Exhibit A - Development Agreement
B. December 4, 2024 Draft Planning Commission Meeting Minutes ATTACHMENT “A”
ORDINANCE NO. ____
AN O
RDINANCE OF THE CITY COUNCIL OF THE CITY OF ANTIOCH APPROVING
A DEVELOPMENT AGREEMENT BETWEEN THE CITY OF ANTIOCH AND APS WEST COAST, INC. FOR THE AMPORTS PROJECT (UP-20-14, AR-20-18, V-21-04) W
HEREAS, the City of Antioch (“City”) received a request from APS West Coast, Inc. (“Applicant”) seeking City approval of a Development Agreement for The AMPORTS Project (“Project”) (UP-20-14, AR-20-18, V-21-04);
W
HEREAS, the project site is located at 2301 Wilbur Avenue (APNs 051-020-006 and 051-020-012);
W
HEREAS, to strengthen the public planning process, encourage private participation in comprehensive planning and reduce the economic risk of development, the Legislature of the State of California adopted Section 65864, et. seq. of the Government Code, which authorizes the City of Antioch to enter into an agreement with any person having a legal of equitable interest in real property providing for the development of such property in order to establish certainty in the development process; W
HEREAS, the City of Antioch previously adopted an implementing ordinance (Article 32 of the Zoning Ordinance) authorizing and regulating the use of Development Agreements;
W
HEREAS, the City and APS West Coast, Inc. have negotiated the Development Agreement attached as Exhibit A to this resolution;
W
HEREAS, the proposed Development Agreement complies with the requirements of Article 32 of the City of Antioch Zoning Code; W
HEREAS, on September 1, 2021, the Planning Commission adopted the Initial Study / Mitigated Negative Declaration (IS/MND), Mitigation Monitoring and Reporting Program (MMRP) for the Amports Project;
W
HEREAS, on September 1, 2021 the Planning Commission approved a Use Permit, Design Review and Variance for the development of an automotive logistics and processing facility the project site;
W
HEREAS, the Planning Commission conducted a duly notice public hearing on December 4, 2024 at which it recommended to the City Council that the Development Agreement be approved. The City Council held a duly noticed public hearing on January 28, 2025 at which all interested persons were allowed to address the Council on the Development Agreement.
T
he City Council of the City of Antioch does ordain as follows:
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Ordinance No. XXXX-C-S Page 2 of 3 January 28, 2025
SECTION 1: Recitals
The recitals above are true and correct and are hereby adopted as findings as if fully set forth herein.
SECTI
ON 2: Findings
The City Council finds that the Development Agreement is consistent with the City’s General Plan as well as all provisions of the City’s Zoning Ordinance and Municipal Code, as required in Antioch Municipal Code § 9 -5.3207. The City Council finds that the Development Agreement implements General Plan objectives by working toward the redevelopment of heavy industrial areas along the Wilbur Avenue corridor and providing appropriate incentives to attract new businesses.
SECTI
ON 3: City Council Review
The City Council has reviewed, considered, and evaluated all of the information prior to acting upon Ordinance.
SECT
ION 4: Record of Proceedings
The documents and other materials that constitute the record of proceedings upon which the City Council has based its recommendation are located in and may be obtained from the City of Antioch’s Clerk’s Office, 200 H Street, Antioch, CA 94509 SECTIO
N 5: Devel opment Agreement
The Development Agreement included as Exhibit “A” is hereby approved, subject to minor and clarifying revisions approved by the City Manager and City Attorney, and the City Manager is authorized and directed to sign it on behalf of the City of Antioch.
SECTI
ON 6: CEQA
An IS/MND was certified for the AMPORTS Project on September 1, 2021. The City Council has concluded that there have been no substantial changes to the project through the Development Agreement. Therefore, in accordance with the California Environmental Quality Act (CEQA) Guidelines Section 15162, a subsequent environmental document is not required.
SECT
ION 7: Severability
Should any provision of this Ordinance, or its application to any person or circumstance, be determined by a court of competent jurisdiction to be unlawful, unreasonable, or otherwise void, that determination shall have no effect on any other provision of this Ordinance or the application of this Ordinance to any other person or circumstance and, to that end, the provisions hereof are severable.
SECT
ION 8: Publication; Effective Date
This Ordinance shall take effect and be enforced within thirty (30) days from and after the date of its adoption by the City Council at a second reading and shall be posted and published in accordance with the California Government Code.
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Ordinance No. XXXX-C-S Page 3 of 3 January 28, 2025
* * *
* * *
I HEREBY
CERTIFY that the foregoing Ordinance was introduced at a regular meeting of the City Council of the City of Antioch, held on the 28th day of January, 2025, and passed and adopted at a regular meeting thereof, held on the ___ day of ____, 2025.
AYES:
NOES:
ABSTAIN:
ABSENT:
___________
__________________________
ROWLAND BERNAL JR.
MAYOR OF THE CITY OF ANTIOCH
ATTES
T:
___________
___________________________
MELISSA RHODES
CITY CLERK OF THE CITY OF ANTIOCH
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RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
CITY OF ANTIOCH
200 H Street
Antioch, CA 94509
Attention: City Clerk
_____________________________________________________________________________ (S pace above line for Recorder’s use only)
Address:
2301 and 2603 Wilbur Avenue
Antioch, California
APN: 051-020-006 and 051-020-012
The undersigned declare(s):
Documentary Transfer Tax is: $0.00
[Gov’t Code §§ 27388.1(a)(2) and 27388.2(b); Rev. & Tax. Code § 11911] ( ) computed on full value of property conveyed, or
( ) computed on full value of less of liens and encumbrances remaining at time of sale. ( ) unincorporated area: ( x ) City of Antioch
( x ) Signature of Declarant
APS WEST COAST, INC.
________________________________________________
By: Jacob Brown
Its: Chief Financial Officer
DE
VELOPMENT AGREEMENT
BETWEEN
THE CITY OF ANTIOCH, A MUNICIPAL CORPORATION
AND
APS WEST COAST, INC., A CALIFORNIA CORPORATION
Adopted by the Antioch City Council
on _________________ ____, 2024
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EXHIBIT A
DEVELOPMENT AGREEMENT BETWEEN THE CITY OF ANTIOCH AND
APS WEST COAST, INC.
THIS DEVELOPMENT AGREEMENT (“Agreement”) by and between the City of Antioch, a municipal corporation (“City”) and APS West Coast, Inc. a California corporation (“Developer”) (each a “Party” and collectively the “Parties”), pursuant to the authority of Division 1, Chapter 4, Article 2.5, Sections 65864 et seq. of the California Government Code (the “Statute”) 1 is entered
into as of _________________ ____, 2024 (the “Effective Date”) in the following factual context:
R E C I T A L S
A. To strengthen the public planning process, encourage private participation in comprehensive planning and reduce the economic risk of development, the California State Legislature enacted the Statute, which authorizes the City to enter into a development agreement with any person having a legal or equitable interest in real property regarding the development of such property.
B. Developer proposes to develop an automotive logistics and processing facility for vehicles prior to their distribution to dealerships (the “Project”) on the real property commonly known as 2301 and 2603 Wilbur Avenue, in the City of Antioch, also known as Contra Costa County Assessor’s Parcel No. 051-020-006 and 051-020-012, and more particularly described in Exhibit A (sometimes “2301 Wilbur” or “2603 Wilbur,” respectively, and sometimes collectively the “Property”). The Project includes the conversion and upgrade of the existing wharf for roll on/roll off operations (the “Pier Upgrades”), construction of a new pre-engineered metal building of approximately 25,328 square feet (the “ New Building”), and new site improvements (the “Improvements”) - including new paving, the demolition and construction of new utility connections, stormwater improvements, lighting, and fencing on the Property, all in accordance with the Project Approvals defined in Recital D of this Agreement.
C. In exchange for the covenants contained in this Agreement and the continued commitment of Developer to provide the benefits described in the Project Approvals, when and if the Project proceeds, and in order to encourage the investment by Developer necessary to proceed with the Project, the City is willing to enter into this Agreement to set forth the rights of Developer to complete the Project as provided in this Agreement.
D. The City Council has approved the following which collectively are referred to as the “Project Approvals”:
(1) Resolution No. 2021-20 adopted by the Planning Commission on September 1, 2021 certifying the Initial Study/Mitigated Negative Declaration for the Project and adopting the Mitigation Monitoring and Reporting Program. (2) Resolution No. 2021-21, adopted by the Planning Commission on September 1, 2021 approving a Use Permit (UP-20-14), Design Review (AR-20-18), and Variance (V-21-04), subject to conditions on approval, a true and correct copy of which is appended to this Agreement as Exhibit B and incorporated herein by this reference.
The Project Approvals impact a Thirty-Eight and 9/10
th- (38.9-) acre area of the Property
(“Affected Property”).
1 All further statutory references in this Development Agreement shall be to the California Government Code, unless otherwise stated.
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E. On ________ ___, 2024, at a duly noted public hearing, the Planning Commission of the City of Antioch adopted Resolution No. 2024-__________, recommending approval of this Agreement.
F. On ________ __, 2024, after a duly noticed public hearing, the City Council considered this Agreement and conducted a first reading of Ordinance No.2024- _______ approving this Agreement.
G. On ________ __, 2024, the City Council conducted a second reading and adopted Ordinance No. 2024-__________ approving this Agreement.
H. After receipt of the Project Approvals, Developer obtained building permits and invested significant funds to construct the Pier Upgrades at 2301 Wilbur. Developer wishes to begin moving cargo through the pier but wishes to delay construction of most Improvements including but not limited to the New Building. Some of the Improvements are proposed to be constructed within thirty (30) days of execution of this Agreement; some within several years; and others would be constructed when the number of vessels that access the site increases to a point where construction of those Improvements is financially viable. The timelines for construction of the Improvements are described in Section 2.5 below. The New Building may or may not be constructed; if it is constructed, any Improvements associated with the New Building will be required to be constructed at that time. City and Developer intend that this Agreement will allow Developer to postpone the construction of most upland Improvements identified in the Project Approvals until the Project can demonstrate the financial viability of the Affected Property for cargo shipping.
I. Developer currently stores automobiles on 2603 Wilbur, which storage is a preexisting legal non-conforming use. City and Developer intend that once Developer berths the first vessel at the pier, Developer will begin making payments to City as set forth in this Agreement for cars stored on 2603 Wilbur as well as the Affected Property.
A G R E E M E N T
In this factual context and intending to be legally bound, the Parties agree as follows:
ARTICLE 1 TERM AND APPLICABLE LAW
1.1 Incorporation of Recitals. The preamble, the Recitals, and all defined terms set forth in both are incorporated into this Agreement by this reference.
1.2 Term.
1.2.1 The term of this Agreement shall commence as of the Effective Date and continue for ten (10) years thereafter, to and including _________________ ____, 2034 (the “Term”), unless sooner terminated or extended as provided herein. The term shall automatically be extended by: (a) any period of Enforced Delay (as defined herein); (b) any period of time during which a lawsuit brought by a third party challenging any aspect of the Project is pending; and/or (c) any period of time during which the filing of a referendum petition or initiative petition delays development of the Project. All such original and extended periods are referred to as the “Term” Subject to ARTICLE 8, in the event that Developer shall fail to make the “Operational Improvements” within the timeframe established by and in compliance with in Section 2.6.1, below, the Term shall be reduced to four (4) years.
1.2.2. The expiration of the Term shall not be interpreted to, and shall not affect, terminate or waive any additional rights that Developer may have that exist independently of this A6
Agreement and derive from common law vesting or other laws or regulations of the State or the City.
1.2.3 The Term and the term of any Project Approval may be extended from time- to-time pursuant to Section 3.4, or ARTICLE 5.
1.3 Applicable Law. The rules, regulations, and official policies governing permitted uses of the Property and density and improvement requirements applicable to development of the Property in accordance with the Project Approvals shall be the ordinances, rules, regulations, and official policies in force as of the Effective Date (collectively, the “City Regulations”), except as otherwise expressly provided in the Project Approvals or this Agreement. The law applicable to the Project shall be (a) the City Regulations, (b) the Project Approvals and (c) this Agreement (collectively, the “Applicable Law”). If there is a conflict between this Agreement and the City Regulations or Project Approvals, this Agreement shall control. If there is a conflict between the Project Approvals and the City Regulations, the Project Approvals shall control.
ARTICLE 2 COVENANTS OF DEVELOPER
2.1 Obligations of Developer Generally. Developer shall have no obligation to proceed with or complete the Project at any particular time or at all, except as provided in Section 2.6.
However, to the extent that Developer proceeds with the Project, it shall comply with the Applicable Law, as defined in Section 1.3.
2.2 Development of the Property. Developer hereby agrees that development of the Project shall be in accordance with the Project Approvals, including any conditions of approval and the mitigation measures for the Project as adopted by the City, and any amendments to the Project Approvals as may, from time to time, be approved pursuant to this Agreement. Developer shall not be obligated to construct any particular aspect of the Project except as required under this Agreement.
2.3 Fees.
2.3.1 Developer shall pay when due all generally applicable fees in effect, and at the rates and in the amounts applicable, at the time of payment. Developer shall pay project specific fees as required by the Project Approvals. “Generally Applicable Fees” are those fees of the City that are applicable to (a) all similar residential projects, or (b) all construction work similar in nature to work required by the Project Approvals. Generally Applicable Fees include development impact fees adopted after the Effective Date. “Project Specific Fees” are fees imposed by the Project Approvals that are not Generally Applicable Fees.
2.3.2 In addition, Developer shall pay processing fees and charges of every kind and nature imposed by City, including planning processing deposits, to cover the actual costs to City of processing applications for subsequent approvals or for monitoring compliance with and review of subsequent submittals for any Project Approvals granted or issued, as such fees and charges are adjusted from time to time.
2.4 Improvements. To the extent required by this Agreement, Developer shall construct the public and private Improvements and make all dedications required by, and more particularly described in the Project Approvals. Developer shall perform the work in accordance with the standards and specifications established by Applicable Law. To the extent there are no such standards or specifications in the Applicable Law other than this Agreement, the work shall be performed in accordance with industry standards and in a good and work manlike manner, as approved by the City Engineer.
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2.5 Specific Development Obligations. In addition to the conditions of approval contained in the Project Approvals (see Exhibit B), the Developer and the City have agreed that the development of the Project is subject to certain specific development obligations as described herein. These specific development obligations, together with the other terms and conditions of this Agreement, provide the incentive and consideration for the City entering into this Agreement.
The Parties understand that any conditions of approval that are applicable to construction of the development obligations below shall be satisfied at the time such development obligation is constructed. By way of example only, when Developer paves the area of the Affected Property as described in Section 2.5.2.1 below, it shall observe condition of approval B.3, which requires standard dust control methods, condition of approval G.2, which requires impervious surfaces constructed by the Project to meet C.3 requirements, etc.
2.5.1 Initial Improvements. Developer will construct the following Improvements, as shown on the plans approved September 1, 2021, (the “Initial Improvements”) within thirty (30) days of full execution of this Agreement:
2.5.1.1 Dimensioned diagram verifying off-street capacity for two full size auto carriers per Condition of Approval K.16.
2.5.1.2 Maintenance of sight distance triangles per Condition of Approval I.1.
2.5.1.3 Stop signs per Condition of Approval K.13.
2.5.1.4 Installation of “idle free” signage per Condition of Approval K.25.
2.5.1.5 Implementation of parking lot sweeping program per Condition of Approval E.1.
2.5.1.6 Verification of turning templates per Condition of Approval K.12.
2.5.2 Operational Improvements. Developer will construct the following Improvements, as shown on the plans approved September 1, 2021 (the “Operational Improvements”), within the Affected Property by the earlier of the fourth year following the Effective Date or the berthing of the 33rd vessel:
2.5.2.1 Paving of the approximately twenty- (20-) acre portion of the Affected Property per Condition of Approval A.12.
2.5.2.2 Employee parking lot and pathway per Condition of Approval A.14.
2.5.2.3 Parking lot striping and signing plan per Condition of Approval K.7.
2.5.3. New Building. If the New Building is constructed, any Improvements associated with it (e.g., undergrounding of utilities per Conditions of Approval H.1, connection to water and sewer mains per Condition of Approval H.13) shall be constructed at that time.
2.5.4. Other Improvements. All other Improvements, as well as the extensions of utilities within Wilbur Avenue, the widening of Wilbur Avenue, and the property dedication along Wilbur Avenue are not required to be constructed until Developer berths a number of vessels at A8
the pier beyond those allowed under the Project Approvals (i.e., eight (8) vessel calls per year with the potential to increase in calls as provided in mitigation measure AIR-3). An extension to this requirement shall be allowed subject to the review and approval of the City Manager. Should an extension be granted then the per occupied truck fee shall remain in effect.
2.5.5. Conditions on Construction. The construction-related conditions in Conditions of Approval B.1-4 and any applicable conditions related to the mitigation monitoring and reporting program in Conditions of Approval J.1-2 shall apply to construction of the improvements described above.
2.6 Truck Trip Fee. Developer shall pay to City the sum of fifty and 00/100 Dollars ($50.00) per occupied car carrier truck trip, inbound and outbound, which funds shall be tendered to City quarterly for use in the City’s sole and absolute discretion. This amount shall be increased annually according to the San Francisco-Oakland-Hayward Consumer Price Index for all Urban Consumers (“CPI”). Applicant shall also provide a quarterly report of the number of vehicles stored and the number of car carrier trips at the site. The vehicle carrier fee and report shall be delivered to the City Manager’s Office.
ARTICLE 3 COVENANTS OF THE CITY
3.1 Obligations of City Generally. The City shall act in good faith to accomplish the intent of this Agreement. City shall cooperate with Developer so that it receives the benefits of and the rights vested by this Agreement, including obtaining from other governmental entities necessary or desirable permits or other approvals for the Project.
3.2 No Conflicting Enactments. The City may adopt new or modified rules, regulations or official policies after the Effective Date, and such new or modified rules, regulations, or official policies shall be included within the Applicable Law; provided, however, such new or modified rules, regulations, or official policies (whether adopted by action of City Council or other body or personnel, by initiative, by referendum, or otherwise) shall be applicable to the Project, and/or to any development on the Affected Property, only to the extent that such application does not modify the Project, does not prevent or impede development of any portion of the Property pursuant to Applicable Law, and does not conflict with this Development Agreement. Any new or modified rule, regulation or official policy (whether adopted by action of the City Council or other body or personnel, by initiative, by referendum, or otherwise) shall be deemed to conflict with this Development Agreement if it seeks to accomplish any one or more of the following results, either with specific reference to the Project or to any development of the Affected Property, or as part of a general enactment that would otherwise apply to the Affected Property:
3.2.1 Reduce the density or intensity of the Affected Property as allowed by the Applicable Law;
3.2.2 Reduce the density or intensity of development allowed on the Affected Property under the Applicable Law;
3.2.3 Change any General Plan or Zoning Code land use designation or permitted use of the Affected Property as described in the Applicable Law;
3.2.4 Require, for any work necessary to develop the Project on the Affected Property, the issuance of permits, approvals, or entitlements by City other than those required by Applicable Law; or
3.2.5 Materially limit the processing of, the procuring of applications for, or approval of Project Approvals.
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Nothing in this Agreement shall restrict the City’s discretion to impose conditions on approvals other than the Project Approvals for the Project.
3.3 Permitted Uses. The permitted uses of the Affected Property; the density and intensity of use of the Property; the maximum height, bulk and size of buildings are as set forth in the Project Approvals, which City confirms and vests by this Agreement.
3.4 Life of Project Approvals. By approval of this Agreement, City extends and vests the term of the Project Approvals for the Term (including any subsequent extensions). The term of each Project Approval shall expire no sooner than (a) this Agreement or (b) the term otherwise applicable to the Project Approval if this Agreement were not in effect, whichever occurs later.
The City shall not require Developer to enter into any agreement that is inconsistent with this Agreement or the Project Approvals.
3.5 Conflict of City and State or Federal Laws. In the event that federal or state laws or regulations enacted after the Effective Date prevent or preclude compliance with one or more provisions of this Development Agreement, each Party shall provide the other Party with written notice of such federal or state law or regulation, a copy of such law or regulation, and a statement concerning the conflict with the provisions of this Development Agreement. The Parties shall, within 30 days, meet and confer in good faith in a reasonable attempt to modify this Development Agreement so as to comply with such federal or state law or regulation. City, without the obligation to incur costs or liability, shall reasonably cooperate with Developer in securing of any permits, approvals, or entitlements that may be required as a result of modifications or suspensions made pursuant to this section.
3.6 Life of Legislative Approvals and Project Approvals. The term of any Project Approval shall be automatically extended for the longer of the Term of this Development Agreement or the term otherwise applicable to such Legislative Approval or Project Approval.
3.7 Timing of Construction and Completion. The Parties acknowledge that, with the exception of the obligations assumed by Developer in Section 2.5.1 and 2.5.2, Developer cannot at this time predict when or the rate at which the Project will be constructed. The Parties agree that there is no requirement that Developer initiate or complete construction of the Project within any particular period of time, or at all, and City shall not impose such a requirement on Developer, the Property, or any Project Approval. In light of the foregoing, the Parties agree that, with the exception of the obligations assumed by Developer in Section 2.5.1 and 2.5.2, Developer may construct the Project at the rate and time Developer deems appropriate within the exercise of its reasonable business judgment, subject to Applicable Law and the terms of this Agreement.
Further, Developer may implement the Project in phases, in Developer’s reasonable discretion.
3.8 Processing Project Approvals. Upon submission by Developer of any application for a Project Approval, City shall cooperate and diligently work to promptly process, consider, and approve such application, and shall apply only Applicable Law and any applicable federal or state laws. City shall retain its discretionary authority in its consideration of any and all Project Approvals that involve discretionary decisions; provided, however, such consideration shall be regulated solely by the Applicable Law, any applicable federal or state law, and this Development Agreement.
3.9 Vested Development Rights. The City confirms and grants to Developer the vested right to pursue the Project in accordance with the Applicable Law and Project Approvals (once they are granted), and the provisions of this Development Agreement, including, without limitation, Developer’s vested right to develop the Project on the Affected Property. In the event of any conflict or inconsistency between this Development Agreement and the Applicable Law or between this Development Agreement and any Project Approvals, this Development Agreement A10
shall prevail and control to the fullest extent legally possible. This Agreement shall be enforceable as set forth in Section 10.2 below. No subsequently adopted ballot measures or initiatives shall have any application to the Affected Property or Project unless Developer shall expressly consent.
ARTICLE 4 CITY RESERVATIONS OF AUTHORITY
4.1 City’s Reservations of Authority. Notwithstanding any other provision of this Agreement to the contrary, the following regulations and provisions shall apply to the development of the Property:
4.1.1 City Regulations regarding processing fees and charges, enacted after the Effective Date, provided such procedures are uniformly applied on a City-wide basis to all substantially similar types of development projects and properties.
4.1.2 City Regulations relating to hearing bodies, petitions, applications, notices, findings, records, hearings, reports, recommendations, appeals and any other matter of procedure, enacted after the Effective Date, provided such procedures are uniformly applied on a City-wide basis to all substantially similar types of development projects and properties.
4.1.3 City Regulations governing construction standards and specifications, enacted after the Effective Date, including (a) City’s building code, plumbing code, mechanical code, electrical code, fire code and grading code, (b) all uniform construction codes applicable in City at the time of building permit issuance, and (c) design and construction standards for road and storm drain facilities; provided any such regulation has been adopted and uniformly applied by City on a citywide basis and has not been adopted for the purpose of preventing or otherwise limiting construction of all or any part of the Project.
4.1.4 City Regulations enacted after the Effective Date that may be in conflict with this Agreement or the Project Approvals but that are necessary to protect persons or property from dangerous or hazardous conditions that create a threat to the public health or safety or create a physical risk, based on findings by the City Council identifying the dangerous or hazardous conditions requiring such changes in the law, why there are no feasible alternatives to the imposition of such changes, and how such changes would alleviate the dangerous or hazardous condition. Changes in laws, regulations, plans or policies that are specifically mandated and required by changes in state or federal laws or regulations that require such to apply to the Project.
Notwithstanding anything to the contrary provided herein, as provided in the Statute at Section 65869.5: “In the event that state or federal law or regulations, enacted after [this Agreement] has been entered into, prevent or preclude compliance with one or more provisions of [this Agreement], such provisions of [this Agreement] shall be modified or suspended as may be necessary to comply with such state or federal laws or regulations.” ARTICLE 5 AMENDMENT
5.1 Amendment of Approvals. To the extent permitted by state and federal law, any Project Approval or Subsequent Project Approvals (hereafter in this ARTICLE 6, an “Approval”) may, from time to time, be amended or modified in the following manner.
5.1.1 Administrative Project Amendments. Upon the written request of Developer for an amendment or modification to an Approval, or this Agreement, or for other consent under this Agreement, the Community Development Director, or his/her designee (collectively “Authorized Official”) shall determine whether the requested amendment or modification: (a) is minor when considered in light of the Project as a whole; (b) is substantially consistent with Applicable Law; and (c) will result in no new environmental impacts. If the A11
Authorized Official finds that the proposed amendment or modification is minor, substantially consistent with Applicable Law, and will result in no new significant environmental impacts, the amendment shall be determined to be an “Administrative Project Amendment” and the Authorized Official may, except to the extent otherwise required by law, approve the Administrative Project Amendment, following consultation with other relevant City staff, without notice and public hearing. Without limiting the generality of the foregoing, lot line adjustments, non-substantial reductions in the density, intensity, scale or scope of the Project, minor alterations in vehicle circulation patterns or vehicle access points, substitutions of comparable landscaping for any landscaping shown on any final development plan or landscape plan, variations in the design and location of structures that do not substantially alter the design concepts of the Project, variations in the location or installation of utilities and other infrastructure connections or facilities that do not substantially alter the design concepts of the Project, and minor adjustments to the Property diagram or Property legal description shall be treated as Administrative Project Amendments.
5.1.2 Non-Administrative Project Amendments. Any request of Developer for an amendment or modification to an Approval which is determined not to be an Administrative Project Amendment as set forth above shall be subject to review, consideration and action pursuant to the Applicable Law and this Agreement.
5.1.3 Project Amendment Exemptions. Amendment of an Approval requested by Developer shall not require an amendment to this Agreement. Instead, the amendment automatically shall be deemed to be incorporated into the Project and the Project Approvals and vested under this Agreement.
5.2 Amendment of This Agreement. This Agreement may be amended from time to time, in whole or in part, by mutual written consent of the Parties or their successors in interest, as follows:
5.2.1 Administrative Agreement Amendments. The City Manager and City Attorney are authorized on behalf of the City to enter into any amendments to this Agreement other than amendments which substantially affect (a) the term of this Agreement (excluding extensions of time for performance of a particular act), (b) permitted uses of the Property, (c) provisions for the reservation or dedication of land, (d) the density or intensity of use of the Property or the maximum height or size of proposed buildings, or (v) monetary payments by Developer. Such amendments (“Administrative Agreement Amendment”) shall, except to the extent otherwise required by law, become effective without notice or public hearing.
5.2.2 Non-Administrative Agreement Amendments. Any request of Developer for an amendment or modification to this Agreement which is determined not to be an administrative Agreement Amendment as set forth above shall be subject to review, consideration and action pursuant to the Applicable Law and this Agreement.
ARTICLE 6 ASSIGNMENT, TRANSFER AND MORTGAGEE PROTECTION
6.1 Assignment of Interests, Rights and Obligations. Nothing herein limits the right of Developer to freely alienate or transfer all or any portion of the Property. However, Developer may only transfer or assign all or any portion of its interests, rights or obligations under this Agreement or the Project Approvals, including any amendments thereto (a “ Transfer”), subject to the requirements for City’s consent set forth in this ARTICLE 6, to any third party who acquires an interest or estate in the Affected Property or any portion thereof including, without limitation, a sublessee of all or a portion of Affected Property, or all or some of the improvement(s) located thereon (a “Transferee”). City consent shall not be required if Developer transfers all or a portion of the Affected Property to an Affiliated Party, or conveys a security interest in the Affected A12
Property to a mortgagee. An “Affiliated Party” is defined as any corporation, limited liability company, partnership or other entity that is controlling of, controlled by, or under common control with Developer, and “control,” for purposes of this definition, means record or beneficial ownership, effective management, and/or control over the other entity, subject only to major events requiring the consent or approval of the other owners of such entity.
6.2 Transfer Agreements.
6.2.1 Written Agreement. In connection with a Transfer by Developer (other than a Transfer by Developer to an Affiliated Party (as defined in Section 6.1) or to a Mortgagee (as defined below in 6.4)), Developer and the Transferee shall enter into a written agreement (a “Transfer Agreement”), with City’s consent in writing to the Transfer, regarding the respective interests, rights and obligations of Developer and the Transferee in and under the Agreement and the Project Approvals. Such Transfer Agreement may (a) release Developer from obligations under the Agreement or the Project Approvals that pertain to that portion of the Affected Property being transferred, as described in the Transfer Agreement, provided that the Transferee expressly assumes such obligations, (b) transfer to the Transferee vested rights to improve and use that portion of the Affected Property being transferred, and (c) address any other matter deemed by Developer to be necessary or appropriate in connection with the transfer or assignment. Developer shall notify the City in writing that it plans to execute a Transfer Agreement at least 60 days in advance of the execution date and provide City with such information as may be required by City to demonstrate the Transferee’s qualifications and financial ability to complete the Project on the Affected Property. City shall have 30 days from the date of such notice to review the information and provide a determination to Developer. City shall not withhold its consent unless the City reasonably determines that the Transferee, or an entity with similar or related ownership or control as Transferee, is or has been a party to litigation filed against the City or if the Transferee lacks the financial ability to complete the Project on the Affected Property. If City does not consent to the Transfer, City shall provide its reasons in writing and shall meet with Developer in good faith to determine what additional information may be necessary for City to provide its consent. Such a process shall not extend beyond a 30-day period.
6.2.2 Binding. Any Transfer Agreement shall be binding on Developer, the City and the Transferee, and shall not release Developer absent express language in the Transfer Agreement. Upon recordation in the Official Records of Contra Costa County of any Transfer Agreement, Developer shall be released from those obligations assumed by the Transferee therein, subject to the provisions of 6.2.1 above.
To the extent that City consent to a Transfer or Transfer Agreement is required by this Section 6.2, such Consent shall not be unreasonably withheld, conditioned, or delayed. City’s failure to respond to a request for consent within 15 calendar days shall be deemed an approval of such Transfer or Transfer Agreement. City’s Community Development Director shall have the authority to provide consent under this Section 6.2.
6.3 Mortgagee Protection.
6.3.1 Priority. This Agreement shall be superior and senior to any lien placed upon the Property or any portion thereof after the date of recording of this Agreement, including the lien of any deed of trust or mortgage (“Mortgage”). The foregoing notwithstanding, no breach of this Agreement shall defeat, render invalid, diminish or impair the lien of any Mortgage made in good faith and for value, but all of the terms and conditions contained in this Agreement (including but not limited to the City’s remedies to terminate the rights of Developer and its successors and assigns under this Agreement, to terminate this Agreement, and to seek other relief as provided in this Agreement) shall be binding upon and effective against any person or entity, including any deed of trust beneficiary or mortgagee (“Mortgagee”) who acquires title to the A13
Property, or any portion thereof, by foreclosure, trustee’s sale, deed in lieu of foreclosure, or otherwise.
6.3.1 Mortgagee Not Obligated. The provisions of 6.3.1 notwithstanding, no Mortgagee shall have any obligation or duty under this Agreement to construct or complete the Project, or to guarantee such construction or completion; provided, however, that a Mortgagee shall not be entitled to devote the Property to any uses or to construct any improvements other than those uses or improvements provided for or authorized by this Agreement, or otherwise under the Project Approvals.
6.3.2 Notice of Default to Mortgagee. If the City receives a written notice from a Mortgagee or from Developer requesting a copy of any notice of default given Developer and specifying the address for notice, then the City shall deliver to the Mortgagee at the Mortgagee’s cost, concurrently with delivery to Developer, any notice with respect to any claim by the City that Developer has committed an event of default. Each Mortgagee shall have the right during the same period available to Developer to cure or remedy, or to commence to cure or remedy, the event of default claimed or the areas of noncompliance set forth in the City’s notice. The City Manager is authorized on behalf of the City to grant to the Mortgagee an extension of time to cure or remedy, not to exceed an additional 60 days.
ARTICLE 7 COOPERATION IN THE EVENT OF LEGAL CHALLENGE,
INDEMNITY
Developer, as the real party in interest, shall defend, indemnify, and hold harmless the City, with legal counsel reasonably acceptable to the City Attorney, in any action brought by a third party to challenge concerning: (a) the validity, legality, or constitutionally of any term, condition, obligation, fee, dedication, or exaction required or imposed by this Development Agreement; (b) the procedures utilized in or the sufficiency of the environmental review associated with this Development Agreement; and (c) the implementation of this Development Agreement through such further actions, measures, procedures, and approvals as are necessary to satisfy the Development Agreement’s requirements. Notwithstanding anything to the contrary, Developer shall have no duty to indemnify City from or against claims for consequential damages, or from or against City’s gross negligence or willful misconduct.
Developer shall defend the City with qualified legal counsel subject to the approval of the City Attorney, which approval shall not be unreasonably withheld, conditioned, or delayed. Developer shall pay all costs, damages, attorney’s fees, and other court-ordered costs awarded to any third party in any legal action in which Developer’s duties to defend, indemnify, and hold the City harmless arise under this ARTICLE 7. The City shall promptly notify Developer of any action filed and the Parties shall cooperate fully in the defense of such action.
The Parties expressly recognize that the obligation stated in this ARTICLE 7 do not require or contemplate that Developer shall indemnify or hold harmless or be responsible for any error, omission, intentional act, negligent act, or default of, or any injury caused by any City department or dependent special district that is formed by or the receives funding as a result of any term or condition of this Agreement.
ARTICLE 8 DEFAULT; TERMINATION; ANNUAL REVIEW
8.1 Default.
8.1.1 Remedies in General; No Damages. City and Developer agree that, as part of the bargained for consideration of this Agreement, in the event of default by either Party, the only remedy shall be declaratory relief or specific performance of this Agreement. In no event A14
shall either Party, or any of their officers, agents, representatives, officials, employees or insurers, be liable to the other Party for monetary damages, whether actual, consequential, punitive or special, for any breach or violation of this Agreement. The Parties agree that any action or proceeding to cure, correct or remedy any default or to enforce any covenant or promise under this Agreement shall be limited solely and exclusively to the remedies expressly provided. Following notice and expiration of any applicable cure periods and completion of the dispute resolution process set forth in ARTICLE 9 below, either Party may institute legal or equitable proceedings to cure, correct, or remedy any default, or to enforce any covenant or promise herein, enjoin any threatened or attempted violation, or enforce by specific performance, declaratory relief or writ of mandate the obligations and rights of the Parties. As noted above, in no event shall either Party be liable for any monetary damages. Any legal action to interpret or enforce the provisions of this Agreement shall be brought in the Superior Court for Contra Costa County, California.
8.1.2 Cure Period. Subject to extensions of time by mutual consent in writing of the Parties, breach of, failure, or delay by either Party to perform any term or condition of this Agreement shall constitute a default. In the event of any alleged default of any term, condition, or obligation of this Agreement, the Party alleging such default shall give the defaulting Party notice in writing specifying the nature of the alleged default and the manner in which such default may be satisfactorily cured (“Notice of Breach”). The defaulting Party shall cure the default within 30 days following receipt of the Notice of Breach, provided, however, if the nature of the alleged default is non-monetary and such that it cannot reasonably be cured within such 30-day period, then the commencement of the cure within such time period, and the diligent prosecution to completion of the cure thereafter, shall be deemed to be a cure, provided that if the cure is not diligently prosecuted to completion, then no additional cure period shall be provided. If the alleged failure is cured within the time provided above, then no default shall exist and the noticing Party shall take no further action to exercise any remedies available hereunder. If the alleged failure is not cured, then a default shall exist under this Agreement and the non-defaulting Party may exercise any of the remedies available.
8.1.3 Procedure on Default by Developer. If Developer is alleged to be in default hereunder by City then after notice and expiration of the cure period specified above and the dispute resolution process set forth in ARTICLE 9 below, City may institute legal proceedings against Developer pursuant to this Agreement, and/or give notice of intent to terminate or modify this Agreement to Developer pursuant to California Government Code Section 65868. Following notice of intent to terminate or modify this Agreement as provided above, the matter shall be scheduled for consideration and review at a duly noticed and conducted public hearing in the manner set forth in Government Code Sections 65865, 65867 and 65868 by the City Council within 60 calendar days following the date of delivery of such notice (the “Default Hearing”). Developer shall have the right to offer written and oral testimony prior to or at the time of the Default Hearing.
If the City Council determines that a default has occurred and is continuing, and elects to terminate the Agreement, City shall give written notice of termination of the Agreement to Developer by certified mail and the Agreement shall thereby be terminated 30 days thereafter; provided, however, that if Developer files an action to challenge City’s termination of the Agreement within such 30-day period, then the Agreement shall remain in full force and effect until a trial court has affirmed City’s termination of the Agreement and all appeals have been exhausted (or the time for requesting any and all appellate review has expired). This Section 8.1.3 shall not be interpreted to constitute a waiver of Section 65865.1 of the Government Code, but merely to provide a procedure by which the Parties may take the actions set forth in Section 65865.1.
8.1.4 Procedure on Default by City. If the City is alleged by Developer to be in default under this Agreement, then after notice and expiration of the cure period and completion of the dispute resolution procedures below, Developer may enforce the terms of this Agreement by an action at law or in equity, subject to the limitations set forth above.
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8.2 Excusable Delay; Extension of Time of Performance. In addition to specific provisions of this Agreement, neither Party shall be deemed to be in default where delays in performance or failures to perform are due to, or a necessary outcome of, war, insurrection, strikes or other labor disturbances, walk-outs, riots, floods, earthquakes, fires, pandemics, casualties, acts of God, enactment or imposition against the Project of any moratorium, or any time period for legal challenge of such moratorium by Developer, or similar basis for excused performance which is not within the reasonable control of the Party to be excused. Litigation attacking the validity of this Agreement or any of the Project Approvals or implementing or subsequent approvals, or any permit, ordinance, entitlement or other action of a governmental agency other than the City necessary for the development of the Project pursuant to this Agreement, or Developer’s inability to obtain materials, power or public facilities (such as water or sewer service) to the Project, shall be deemed to create an excusable delay as to Developer. Upon the request of either Party, an extension of time for the performance of any obligation whose performance has been so prevented or delayed shall be memorialized in writing. The City Manager is authorized on behalf of the City to enter into such an extension. The term of any such extension shall be equal to the period of the excusable delay, or longer, as may be mutually agreed upon.
8.3 Annual Review. Throughout the Term, and at least once every 12 months, City may request that Developer provide City with a written report demonstrating its good-faith compliance with the terms of this Agreement (the “Written Report”). The City Manager and City Attorney shall review the Written Report to determine whether Developer is in good-faith compliance with the terms of the Agreement and, if they have concerns about Developer’s compliance, shall schedule a review before the City Council (the “Periodic Review”). At least 10 days prior to the Periodic Review, the City shall provide to Developer a copy of any staff reports and documents to be used or relied upon in conducting the review (and, to the extent practical, related exhibits) concerning Developer’ performance. Developer shall be permitted an opportunity to respond to the City’s evaluation of Developer’s performance, either orally at a public hearing or in a written statement, at Developer’s election. Any written response shall be directed to the Community Development Director. At the conclusion of the Periodic Review, the City Council shall make written findings and determinations, on the basis of substantial evidence, as to whether or not Developer has complied in good faith with the terms and conditions of this Agreement. If the City Council finds and determines, based on substantial evidence, that Developer has not complied with such terms and conditions, the City Council may initiate proceedings to terminate or modify this Agreement, in accordance with Government Code Section 65865.1, by giving notice of its intention to do so, in the manner set forth in Government Code Sections 65867 and 65868.
If after receipt of the Written Report, the City does not (a) schedule a Periodic Review within 2 months, or (b) notify Developer in writing of the City’s determination after a Periodic Review, then it shall be conclusively presumed that Developer has complied in good faith with the terms and conditions of this Agreement during the year covered under the Written Report.
8.4 Notice of Compliance. Within 30 days following any written request which Developer or a Mortgagee may make from time to time, the City shall execute and deliver to the requesting party (or to any other party identified by the requesting party) a written “ Notice of Compliance,” in recordable form, duly executed and acknowledged by the City, that certifies:
(a) this Agreement is unmodified and in full force and effect, or if there have been modifications, that this Agreement is in full force and effect as modified and stating the date and nature of the modifications; (b) there are no current uncured defaults under this Agreement or specifying the dates and nature of any default; and (c) any other information reasonably requested by Developer or the Mortgagee. The failure to deliver such a statement within such time shall constitute a conclusive presumption against the City that this Agreement is in full force and effect without modification except as may be represented by Developer and that there are no uncured defaults in the performance of Developer, except as may be represented by Developer.
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ARTICLE 9 DISPUTE RESOLUTION
9.1 Dispute; Confidentiality. Any controversy or dispute arising out of or related to this Agreement, or the development of the Project (a “ Dispute”), shall be subject to private negotiation among the Parties, and if then not resolved shall be subject to non-binding mediation followed by litigation, if necessary, as set forth below. Each Party agrees that any Dispute, and all matters concerning any Dispute, will be considered confidential and will not be disclosed to any third-party except (a) disclosures to a Party’s attorneys, accountants, and other consultants who assist the Party in the resolution of the Dispute, (b) as provided below with respect to the mediation, and (c) as otherwise required by law, including without limitation, the California Public Records Act.
9.2 Private Negotiation. If a Dispute arises, the Parties agree to negotiate in good faith to resolve the Dispute. If the negotiations do not resolve the Dispute to the reasonable satisfaction of the Parties within 30 days from a written request for a negotiation, then the Dispute shall be submitted to mediation pursuant to Section 9.3.
9.3 Mediation. Within 30 days following the written request to negotiate, either Party may initiate non-binding mediation (the “Mediation”), conducted by JAMS, Inc. (“JAMS”) or any other agreed-upon mediator. Either Party may initiate the Mediation by written notice to the other Party. The mediator shall be a retired judge or other mediator, selected by mutual agreement of the Parties. If the Parties cannot agree within 15 days after the Mediation notice, the mediator shall be selected through the procedures regularly followed by JAMS. The Mediation shall be held within 30 days after the Mediator is selected, or a longer period as the Parties and the mediator mutually decide. If the Dispute is not fully resolved by mutual agreement of the Parties within 30 days after completion of the Mediation, then either Party may commence an action in state or federal court. The Parties shall bear equally the cost of the mediator’s fees and expenses, but each Party shall pay its own attorneys’ and expert witness fees and any other associated costs.
9.4 Injunction. Nothing in this ARTICLE 9 shall limit a Party’s right to seek an injunction or restraining order from a court of competent jurisdiction in circumstances where such relief is deemed necessary to preserve assets.
ARTICLE 10 MISCELLANEOUS
10.1 Defined Terms; Citations. The capitalized terms used in this Agreement, unless the context obviously indicates otherwise, shall have the meaning given them in this Agreement.
Except as otherwise expressly stated, all citations are to the Government Code of the State of California.
10.2 Enforceability. As provided in Section 65865.4, this Agreement shall be enforceable by either Party notwithstanding any change enacted or adopted (whether by ordinance, resolution, initiative, or any other means) in any applicable general plan, specific plan, zoning ordinance, subdivision ordinance, or any other land use ordinance or resolution or other rule, regulation or policy adopted by the City that changes, alters or amends the ordinances, rules, regulations and policies included in the Applicable Law, except as this Agreement may be amended or canceled pursuant to Section 65868 or modified or suspended pursuant to Section 65869.5.
10.3 Other Necessary Acts. Each Party shall execute and deliver to the other all such other further instruments and documents as may be reasonably necessary to carry out the Project Approvals and this Agreement and to provide and secure to the other Party the full and complete enjoyment of its rights and privileges under this Agreement.
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10.4 Construction. Each reference in this Agreement to this Agreement or any of the Project Approvals shall be deemed to refer to this Agreement or the Project Approval, as it may be amended from time to time. This Agreement has been reviewed and revised by legal counsel for both the City and Developer, and no presumption or rule that ambiguities shall be construed against the drafting party shall apply to the interpretation or enforcement of this Agreement.
10.5 Covenants Running with the Land. Subject to the Transfer provisions in ARTICLE 6, all of the provisions contained in this Agreement shall be binding upon and benefit the Parties and their respective heirs, successors and assigns, representatives, lessees, and all other persons acquiring all or a portion of, or interest in, the Property, whether by operation of law or in any manner whatsoever. All of the provisions contained in this Agreement shall be enforceable as equitable servitudes and shall constitute covenants running with the land pursuant to California law including, without limitation, Civil Code Section 1468. Each covenant herein to act or refrain from acting is for the benefit of or a burden upon the Property, as appropriate, runs with the Property and is for the benefit of and binding upon the Developer, and each successive owner of all or a portion of the Property, during its ownership of such property.
10.6 Attorneys’ Fees. If any legal action or other proceeding is commenced to enforce or interpret any provision of, or otherwise relating to, this Agreement, the losing party or parties shall pay the prevailing party’s or parties’ actual expenses incurred in the investigation of any claim leading to the proceeding, preparation for and participation in the proceeding, any appeal or other post-judgment motion, and any action to enforce or collect the judgment including without limitation contempt, garnishment, levy, discovery and bankruptcy. For this purpose “ expenses” include, without limitation, court or other proceeding costs and experts’ and attorneys’ fees and their expenses. The phrase “prevailing party” shall mean the party which is determined in the proceeding to have prevailed or which prevails by dismissal, default or otherwise.
10.7 No Agency, Joint Venture or Partnership. The City and Developer disclaim the existence of any form of agency relationship, joint venture or partnership between the City and Developer. Nothing contained in this Agreement or in any document executed in connection with this Agreement shall be construed as creating any relationship other than a contractual relationship between the City and Developer.
10.8 No Third Party Beneficiary. This Agreement is made solely and specifically among and for the benefit of the Parties, and their respective successors and assigns subject to the express provisions relating to successors and assigns, and no other party other than a Mortgagee will have any rights, interest or claims or be entitled to any benefits under or on account of this Agreement as a third party beneficiary or otherwise.
10.9 Notices. All notices, consents, requests, demands or other communications to or upon the respective Parties shall be in writing and shall be effective for all purposes: (a) upon receipt on any City business day before 5:00 PM local time and on the next City business day if received after 5:00 PM or on other than a City business day, including without limitation, in the case of (i) personal delivery, or (ii) delivery by messenger, express or air courier or similar courier, or (b) 5 days after being duly mailed certified mail, return receipt requested, postage prepaid, all addressed as follows:
TO CITY:
TO DEVELOPER:
City of Antioch
Attention: City Manager
200 H Street
Antioch, CA 94509
APS West Coast, Inc.
Attention: Chief Financial Officer
10060 Skinner Lake Drive, 2nd Floor
Jacksonville, FL 32246
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With a Mandatory Copy to:
With a Mandatory Copy to:
City of Antioch
Attention: City Attorney
200 H Street
Antioch, CA 94509
Reuben, Junius & Rose, LLP
Attention: Matthew D. Visick
1 Bush Street, Suite 600
San Francisco, CA 94104
In this Agreement “City business days” means days that the Antioch City Hall is open for business and does not currently include Fridays, Saturdays, Sundays, and federal and state legal holidays.
Either Party may change its address by written notice to the other on five business days’ prior notice in the manner set forth above. Receipt of communication by facsimile or electronic mail shall be sufficiently evidenced by a machine-generated confirmation of transmission without notation of error. In the case of illegible or otherwise unreadable facsimile transmissions, the receiving Party shall promptly notify the transmitting Party of any transmission problem and the transmitting Party shall promptly resend any affected pages.
10.10 Entire Agreement and Exhibits. This Agreement constitutes in full, the final and exclusive understanding and agreement of the Parties and supersedes all negotiations or previous agreements of the Parties with respect to all or any part of the subject matter of this Agreement.
No oral statements or prior written matter not specifically incorporated in this Agreement shall be of any force and effect. No amendment of, supplement to, or waiver of any obligations under this Agreement will be enforceable or admissible unless set forth in a writing approved by the City and Developer. The following exhibit is attached to this Agreement and incorporated for all purposes:
Exhibit A Legal Description 2301 and 2603 Wilbur Avenue Exhibit B Resolution No. 2021-21
10.11 Counterparts. This Agreement may be executed in any number of identical counterparts and each counterpart shall be deemed to be an original document. All executed counterparts together shall constitute one and the same document, and any counterpart signature pages may be detached and assembled to form a single original document. This Agreement may be executed by signatures transmitted by facsimile, adobe acrobat or other electronic image files and these signatures shall be valid, binding and admissible as though they were ink originals.
10.12 Recordation of Development Agreement. Pursuant to Section 65868.5, no later than 10 days after the City enters into this Agreement, the City Clerk shall record an executed copy of this Agreement in the Official Records of the County of Contra Costa. [SIGNATURES FOLLOW]
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This Agreement has been entered into by and between Developer and the City as of the Effective Date.
CITY:
DEVELOPER
CITY OF ANTIOCH,
a Municipal corporation
_____________________________________
By: Kwame P. Reed
Its: Acting City Manager
APS WEST COAST, INC.,
a California corporation
_____________________________________
By: Jacob Brown
Its: Chief Financial Officer
APPROVED AS TO FORM: APPROVED AS TO FORM:
_____________________________________
By: Thomas Lloyd Smith
Its: City Attorney
REUBEN, JUNIUS & ROSE, LLP
_____________________________________
By: Corie A. Edwards
Its: Attorney
ATTEST:
_____________________________________
By: Ellie Householder
Its: City Clerk
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Exhibit A
Legal Description 2301 and 2603 Wilbur Avenue
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Exhibit B
Resolution No. 2021-21
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CITY OF ANTIOCH
PLANNING COMMISSION
REGULAR MEETING
Regu
lar Meeting December 4, 2024
6:30 p.m. City Council Chambers
1. CALL T
O ORDER
Vice
Chairperson Webber called the meeting to order at 6:30 P.M. on Wednesday, December 4, 2024, in Council Chambers.
2. ROLL
CALL
Pres
ent: Commissioners Jones, Lutz, Martin, Perez, Vice Chairperson Webber
Absent: Commissioner Hills and Chairperson Riley
Staff
: Assistant City Attorney, Kevin Kundinger
Economic Development Director, Kwame Reed
Planning Manager, Zoe Merideth
Minutes Clerk, Kitty Eiden
3. PLE
DGE OF ALLEGIANCE
Vice
Chairperson Webber led the Pledge of Allegiance.
Act
ing Planning Manager Merideth announced Chairperson Riley was reappointed to the Planning Commission and introduced newly appointed Commissioner Perez to the Planning Commission.
4. PUBLI
C COMMENT – None
5. CONSE
NT CALENDAR
5-1. Planning Commission Meeting Minutes November 6, 2024 On mot
ion by Commissioner Martin , seconded by Commissioner Jones the Planning Commission members present unanimously approved Consent Calendar Item 5 -1. The motion carried the following vote:
AYES: Jone
s, Lutz, Martin, Webber
NOES: None
ABSTAIN: Perez
ABSENT: Hills, Riley
6. CONTI
NUED PUBLIC HEARING
6-1 LA
2024-0005 | State Density Bonus Law Ordinance Update | Citywide – The City of Antioch is proposing to repeal and replace Title 9, Chapter 5, Article 35 of ATTACHMENT "B"
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Planning Commission
Regular Meeting
December 4, 2024 Page 2 of 6
the Antioch Municipal Code, Density Bonus Program. The zoning text amendments will ensure compliance with State law, outline application and approval procedures, and include development standards for affordable units constructed under the ordinance.
Planni
ng Manager Merideth presented the staff report dated December 4, 2024, recommending the Planning Commission table this item.
Comm
issioner Martin thanked staff for their efforts to ensure the City was compliant with State law.
On mot
ion by Commissioner Jones, seconded by Commissioner Martin the Planning Commission members present unanimously tabled LA2024- 0005 | State Density Bonus Law Ordinance Update | Citywide. The motion carried the following vote:
AYES: Jon
es, Lutz, Martin, Perez, Webber
NOES: None
ABSTAIN: None
ABSENT: Hills, Riley
7. NEW P
UBLIC HEARING
7-1
UP-20-14, AR-20-18, V-21-04 | AMPORTS Antioch Vehicle Processing Facility 2301 Wilbur Ave - The applicant, APS West Coast, Inc., requests approval of a Development Agreement with the City of Antioch. The proposed Development Agreement would defer certain improvements conditioned upon the project in exchange for payment of a fee to the City based on the number of car carrier trips that access the project site
Act
ing Planning Manager Merideth presented the staff report dated December 4, 2024, recommending the Planning Commission adopt a resolution recommending the City Council approve the proposed Development Agreement between the City of Antioch and APS West Coast, Inc. for the AMPORTS project.
Randy S
cott, General Manager, stated their intent was to further develop the site.
In res
ponse to Commissioner Jones, Matthew Visick, Land Use Consultant, stated the land was owned by an out of state, land holding entity and it was under a long-term lease.
Ass
istant City Attorney Kundinger reviewed the public hearing procedures for this agenda item.
Chair
person Riley opened the public hearing.
Mr.
Scott stated they were proposing a phased development of the site.
Chair
person Riley closed the public hearing.
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Planning Commission
Regular Meeting
December 4, 2024 Page 3 of 6
In response to Commissioner Jones, Mr. Scott explained the timeline for the project and provided details for the processing of vehicles.
Econo
mic Development Director Reed provided a history of AMPORTS operation in Antioch and the negotiated truck fee to address the impact the business had on the roadway. He stated AMPORTS wanted the opportunity to generate revenue to make improvements to the site. He noted this would also allow them to operate with no more than 8 vessels per year and they expected the upland improvements to occur in 4 years or 33 vessel trips coming to the facility.
He explained that each vessel could carry up to 3000 vehicles. He commented that the estimated revenue generated would be based on the economy, tariffs and market demands. He added that the fees would be captured for each truck in both directions.
Mr.
Scott stated they would make site improvements based on the customers’ needs.
In res
ponse to Commissioner Lutz, Mr. Scott reported that approximately 500 jobs could be generated from this facility. He noted that he was unaware of any other AMPORT location that paid a truck trip fee.
Comm
issioner Lutz spoke in support of the agreement.
In res
ponse to Commissioner Lutz, Director of Economic Development Reed explained that AMPORTS was a privately owned international company and with several facilities in the United States and Mexico. He added that they were a reputable company who wanted the site to produce so it would be beneficial for them to improve the facility.
Mr. S
cott added that they had a 40-year lease, and this was a common approach to developing a port.
In res
ponse to Commissioner Lutz, Mr. Scott explained that the environmental issue in Benecia was related to the oil refinery and AMPORTS cargo would not be susceptible to that kind of incident.
Planni
ng Manager Merideth added that all mitigation measures outlined in the 2021 mitigated negative declaration would be followed.
Comm
issioner Martin stated he supported this development agreement.
In res
ponse to Commissioner Martin, Planning Manager Merideth explained that the original project approval resolution discussed the Bay Area Air Quality Management District limiting vessel calls to no more than eight calls per year. She stated staff would be working with the developer to monitor vessel calls.
Dir
ector of Economic Development Reed added the City would be relying on AMPORTS reporting standards for vessel and truck traffic.
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Regular Meeting
December 4, 2024 Page 4 of 6
In response to Commissioner Jones, Mr. Scott stated if tariffs impacted vessel traffic, vehicles could come in via rail or truck.
In response to Vice Chairperson Webber, Mr. Scott reported that three vessels had come to the facility this year and trucks come and go daily. He noted the cost for storage of vehicles varied based on customer demand.
Director of Economic Development Reed confirmed the vehicles were currently parked on pavement and they were monitored continuously.
In response to Commissioner Jones, Director of Economic Development Reed confirmed that the money generated from this facility would go to the General Fund.
In response to Commissioner Webber, Director of Economic Development Reed reiterated that the applicant was required to make improvements along their frontage by 4 years or the 33rd vessel coming into the facility.
Mr. Visick clarified that they were not being relieved of an obligation, this was an agreed upon approach so they could make the improvements over time.
Commissioner Martin encouraged the City to use the funds generated from this agreement to make improvements to Wilbur Ave. near this facility.
Director of Economic Development Reed clarified that this agreement would allow AMPORTS to function without making all of the upland improvements that were part of the original entitlement for the land use permit. He noted they were unable to generate enough revenue to do all the upland improvements with 8 vessels per year.
Mr. Visick explained that they had intended to build the entire project out pre pandemic; however, circumstances had changed and based on those changes the goal was to build incrementally.
Mr. Scott reiterated that they proposed the truck trip fee so they could phase the improvements.
Mr. Visick stated it was their expectation that they could have increased the number of ships if there had been more time to gather data. He noted emissions were limited as quantified in the environmental document; however, they could potentially bring back an air quality analysis that showed they could have more ships with the same amount of emissions. He stated they hoped to get enough agreements signed with distributors to rationalize those costs.
On motion by Commissioner Martin , seconded by Commissioner Jones the Planning Commission members present unanimously adopted a resolution of the Planning Commission of the City of Antioch recommending City Council approval of a Development Agreement between the City of Antioch and APS West Coast, Inc., for the AMPORTS Project (UP-20-14, AR-20-18, V-21-04). The motion carried the following vote:
AYES: Jones, Lutz, Martin, Perez, Webber
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Planning Commission
Regular Meeting
December 4, 2024 Page 5 of 6
NOES: None
ABSTAIN: None
ABSENT: Hills, Riley
The Pl
anning Commission congratulated the applicant on receiving approval.
8. REGUL
AR ITEM
8-1
Housing Legislation Update | Citywide – Staff will provide an update on recent housing legislation.
Planni
ng Manager Merideth presented the staff report dated December 4, 2024. This is an informational item for the Commission and no action is required.
Vic
e Chairperson Webber opened and closed the public comment period with no members of the public requesting to speak.
Comm
issioner Martin and Vice Chairperson Webber thanked staff for the update.
9. ORAL/
WRITTEN COMMUNICATIONS
Comm
issioner Lutz announced his resignation from the Planning Commission. He recognized staff and the Commission for their professionalism.
Planni
ng Commissioners stated they had enjoyed working with Commissioner Lutz and wished him well in the future.
10. COMM
ITTEE REPORTS - None
11. NEX
T MEETING: December 18, 2024
Act
ing Planning Manager Merideth announced the December 18, 2024, and January 1, 2025 Planning Commission meetings were canceled and the next regular meeting would be on January 15, 2025.
12. ADJOURNM
ENT
On mot
ion by Commissioner Jones, seconded by Commissioner Martin , the Planning Commission members present unanimously adjourned the meeting at 7:37 P.M. The motion carried the following vote:
AYES: Jon
es, Lutz, Martin, Perez, Webber
NOES: None
ABSTAIN: None
ABSENT: Hills, Riley
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Regular Meeting
December 4, 2024 Page 6 of 6
Kitty Eiden
KITTY EIDEN, Minutes Clerk
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7 Agenda Item #
STAFF REPORT TO THE CITY COUNCIL
DATE: Regular Meeting of January 28, 2025
TO: Honorable Mayor and Members of the City Council
SUBMITTED BY: Ana Cortez, Human Resources Director AEC
APPROVED BY: Bessie Marie Scott, City Manager
for
SUBJECT: Contract with Cole Huber LLP for Interim City Attorney Duties for an Amount Not to Exceed $400,000
RECOMMENDED ACTION
It is recommended that the City Council adopt a resolution approving the agreement with Cole and Huber LLP to provide Interim City Attorney Services for an amount up to $400,000 and authorize the Mayor to sign the Agreement.
FISCAL IMPACT
Per the attached contract, the City will pay by the hour for legal services rendered. The contract will be terminated upon the hiring of a permanent C ity Attorney. The attached resolution caps the maximum amount at $400,000. Should the cost of services rendered broach near this total, this item will be brought back for further spending authorization The anticipated cost to the General Fund for FY25 and FY26 will be incorporated into the draft two-year budget.
DISCUSSION
At the Special City Council Meeting on January 17, 2025, the City Council directed staff to negotiate an agreement with Cole Huber LLP (“Law Firm”) to provide Interim City Attorney services due to the resignation of the former City Attorney on January 17, 2025.
The Law Firm has provided the City of Antioch with legal services on two previous occasions. Therefore, they are familiar and have prior working knowledge with the City.
The retainer is expected to cover attendance at City Council meetings and provide services that are reasonably expected in conjunction with the existing City Attorney’s Office staff.
There are some existing outside counsel agreements that are expected to remain in place during the interim period. The City currently utilizes the services of outside legal counsel
Antioch City Council Report
January 28, 2025 Agenda Item#7 2
(on water rights issues; litigation; and specialized labor and employment services; among others).
ATTACHMENTS
A. Resolution
B. Proposed Agreement with Cole Huber LLP for Interim City Attorney Services.
ATTACHMENT “A”
RESOLUTION NO. 2025/xxx
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ANTIOCH APPROVING AN AGREEMENT WITH COLE HUBER LLP., FOR INTERIM CITY ATTORNEY SERVICES NOT TO EXCEED $400,000
WHEREAS, the City Attorney resigned on January 17, 2025;
WHEREAS, the City requires the services of legal counsel on an interim basis until a new City Attorney can be appointed; and
WHEREAS, the law firm of Cole Huber LLP., previously provided interim City Attorney services to the City of Antioch and is familiar with the needs and processes of the.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Antioch, hereby:
Section 1: Approves the agreement for Interim City Attorney services with Cole Huber LLP., for the rates set forth in the Law Firm -Client Fee Agreement Municipal Advisory and Litigation Services attached as Exhibit A and incorporate herein, for an amount not to exceed $400,000; and
Section 2: Authorizes the Mayor to sign the agreement.
* * * * * * *
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 28th day of January 2025, by the following vote:
AYES:
NOES:
ABSTAIN:
ABSENT:
MELISSA RHODES
CITY CLERK OF THE CITY OF ANTIOCH
1 L
AW FIRM-CLIENT FEE AGREEMENT
MUNICIPAL ADVISORY AND LITIGATION SERVICES
C
ole Huber LLP (“Law Firm”) and City of Antioch (“Client”) agree that Law Firm will provide legal services to Client on the terms set forth below.
1. CONDITIONS
This Agreement will not take effect, and Law Firm will have no obligation to provide legal services, until: (a) Client returns a signed copy of this Agreement; and (b) Law Firm acknowledges acceptance of representation by returning a fully executed copy to Client.
2. SCOPE OF SERVICES AND LAW FIRM’S DUTIES
Client hires Law Firm to provide legal services in the following matters:
Represent Client as its Interim City Attorney, including providing advice on all customary municipal law matters.
L
aw Firm will provide those legal services reasonably required to represent Client. Law Firm will take reasonable steps to keep Client informed of progress and to respond to Client’s inquiries. This Agreement does not cover representation for any litigation matter, including but not limited to any arbitration, administrative proceeding, trial court action, appeal, or collection proceedings. A separate written agreement for these services or services in any other matter not described above will be required. Law Firm is representing Client only in the matter described above.
3. CLIENT’S DUTIES
Client agrees to be truthful with Law Firm and not withhold information. Further, Client agrees to cooperate, to keep Law Firm informed of any information or developments which may come to Client’s attention, to abide by this Agreement, to pay Law Firm’s bills on time, and to keep Law Firm advised of Client’s address, telephone number and whereabouts. Client will assist Law Firm by timely providing necessary information and documents. Client agrees to appear at all legal proceedings when Law Firm deems it necessary, and generally to cooperate fully with Law Firm in all matters related to the preparation and presentation of Client’s claims.
4. CLIENT’S DUTY TO APPROPRIATE FUNDS
Law Firm agrees to assist Client in providing an initial budget and updated budgets throughout its representation of Client to ensure Client may appropriate funds sufficient to pay for Law Firm’s services. Provided Law Firm timely provides any budget estimate(s) Client requests, Client agrees to appropriate funds each fiscal year, or at other intervals as are necessary, to ensure Law Firm may be compensated for all legal services it performs. Client agrees that should it fail to appropriate funds, for any reason, sufficient to compensate Law Firm for all its legal services, Client will, to the extent permitted by law, consent to Law Firm’s
ATTACHMENT B
2 withdrawal from representation and will reasonably cooperate with Law Firm to effect such withdrawal.
5. CLIENT’S AUTHORITY TO AUTHORIZE AGREEMENT
The undersigned representative of the Client represents he or she has the authority to execute this Agreement in accordance with Client’s policies, procedures, ordinances, or rules governing contracting for professional services. To the extent the approval of the governing body of Client is require to execute this Agreement, or is required to authorize payment to Law Firm beyond a threshold established in its policies, procedures, ordinances or rules, Client agrees that should it fail to secure any such approval, for any reason, Client will, to the extent permitted by law, consent to Law Firm’s withdrawal from representation and will reasonably cooperate with Law Firm to effect such withdrawal.
6. LEGAL FEES AND BILLING PRACTICES
Client agrees to pay by the hour at Law Firm’s rates as set forth below for all time spent on Client’s matter by Law Firm and Law Firm’s legal personnel. Current hourly rates for legal personnel are as follows:
Senior partners (21 or more years in practice)
Partners (8-20 years in practice)
Associates (less than 8 years in practice)
Paralegals
Law clerks
$310/hour
$285/hour
$250/hour
$195/hour
$210/hour
The rates on this schedule are subject to change on 30 days’ written notice to Client.
Rates may be changed, however, only once per calendar year, on or after January 1. If Client declines to pay the increased rates, Law Firm will have the right to withdraw as counsel for Client if permitted under the Rules of Professional Conduct of the State Bar of California and/or applicable law.
The time charged will include, but is not limited to, the time Law Firm spends on telephone calls, e-mails and other electronic communications relating to Client’s matter, including calls and e-mails with Client, witnesses, opposing counsel, court personnel or other persons.
Further, the legal personnel assigned to Client’s matter may confer among themselves about the matter, as required and appropriate. When they do confer, each person will charge for the time expended, as long as the work done is reasonably necessary and not duplicative.
Likewise, if more than one of the legal personnel attends a meeting, court hearing or other proceeding, each will charge for the time spent.
Time is billed in minimum increments one-tenth (.1) of an hour. Law Firm will charge for waiting time in court and elsewhere and for travel time, both local and out of town.
3 7. COSTS AND OTHER CHARGES
(a) Law Firm will incur various costs and expenses in performing legal services under this Agreement. Client agrees to pay for all costs, disbursements and expenses in addition to the hourly fees. The costs and expenses commonly include, service of process cha rges, filing fees, court and deposition reporters’ fees, translator/interpreter fees, jury fees, notary fees, deposition costs, long distance telephone charges, messenger and other delivery fees, postage, outside photocopying and other reproduction costs, travel costs including parking, mileage, transportation, meals and hotel costs, investigation expenses, consultants ’ fees, expert witness, professional, mediator, arbitrator and/or special master fees and other similar items. The foregoing external costs and expenses will be charged at Law Firm ’s cost. Internal charges are billed at the following rates: (1) mileage – IRS Standard Mileage Rate; (2) in-house printing and photocopying – 10 cents per page; (3) facsimile charges – 10 cents per page; (4) postage at cost; and (5) computerized legal research at cost. (b) Out-of-town travel. Client agrees to pay transportation, meals, lodging and all other costs of any necessary out-of-town travel by Law Firm and Law Firm ’s personnel. Client will also be charged the hourly rates for the full time legal personnel spend traveling, minus any time the billing personnel are able to spend working on other client matters. (c) Experts, Consultants and Investigators. To aid in the handling of the Client matter, it may become necessary to hire expert witnesses, consultants , or investigators. Client agrees to pay such fees and charges. Law Firm will select any expert witnesses, consultants or investigators to be hired, and Client will be informed of persons chosen and their charges. (d) Law Firm will obtain Client’s consent before incurring any costs in excess of $2,500.
8. OTHER FEES AND COSTS
Client understands that if Client’s case proceeds to court action or arbitration, the court may award Law Firm fees as well as some or all of the type of costs enumerated in paragraph 6 above to the other party or parties. Payment of such Law Firm fees and costs shall be the sole responsibility of Client. Similarly, other parties may be required to pay some or all of the fees and costs incurred by the Client. Client acknowledges that any such determination does not in and of itself affect the amount of the fees and costs to be paid by Client to Law Firm pursuant to this agreement.
9. BILLS
Law Firm will send Client periodic bills for fees and costs incurred. Each bill will be payable within 30 days of its mailing date.
Bills for the fee portion of the bill will include the amount, rate, basis for calculation, or other method of determination of the Law Firm’s fees. Bills for the cost and expense portion of the bill will clearly identify the costs and expenses incurred and the amount of the costs and expenses. Client agrees to promptly review all bills rendered by Law Firm and to promptly communicate any objections, questions, or concerns about their contents.
4 10. DISCHARGE AND WITHDRAWAL
Client may discharge Law Firm at any time. Law Firm may withdraw with Client’s consent or for good cause or if permitted under the Rules of Professional Conduct of the State Bar of California and/or applicable law. Among the circumstances under which Law Firm may withdraw are: (a) with the consent of Client; (b) Client’s conduct renders it unreasonably difficult for the Law Firm to carry out the employment effectively; and/or (c) Client fails to pay Law Firm’s fees or costs as required by this Agreement. Notwithstanding the discharge, Client will remain obligated to pay Law Firm at the agreed rates for all services provided and to reimburse Law Firm for all costs advanced.
11. CONCLUSION OF SERVICES
When Law Firm’s services conclude, whether by completing the services covered by this Agreement, or by discharge or withdrawal, all unpaid charges for fees or costs will be due and payable immediately.
Client may have access to Client’s case file at Law Firm’s office at any reasonable time. At the end of the engagement, Client may request the return of Client’s case file. If Client has not requested the return of Client’s file, and to the extent Law Firm has not otherwise delivered it or disposed of it consistent with Client’s directions, Law Firm will retain the case file for a period of five years, after which Law Firm is authorized by this agreement to have the case file destroyed.
If Client would like Law Firm to maintain Client’s case file for more than five years after the conclusion of Law Firm’s services for Client on a given matter, a separate written agreement must be made between Law Firm and Client, which may provide for Client to bear the cost of maintaining the file. In the event Client requests that Law Firm transfer possession of Client’s case file to Client or a third party, Law Firm is authorized to retain copies of the case file at Law Firm’s expense. The case file includes Client materials and property as defined in Rule
1.16(e)(1) of the California Rules of Professional Conduct.
12. DISCLAIMER OF GUARANTEE AND ESTIMATES
Nothing in this Agreement and nothing in Law Firm’s statements to Client will be construed as a promise or guarantee about the outcome of the matter. Law Firm makes no such promises or guarantees. Law Firm’s comments about the outcome of the matter are expressions of opinion only, are neither promises nor guarantees, and will not be construed as promises or guarantees. Any deposits made by Client, or estimate of fees given by Law Firm, are not a representation of a flat fee and will not be a limitation on fees or a guarantee that fees and costs will not exceed the amount of the deposit or estimate. Actual fees may vary significantly from estimates given.
13. PROFESSIONAL LIABILITY INSURANCE DISCLOSURE
Pursuant to California Rule of Professional Conduct 1.4.2(a), Law Firm informs you in writing that it carries professional liability insurance through Lloyd’s of London with coverage limits of $5 million, both per occurrence and aggregate.
5 14. CLIENT’S DUTY TO DEFEND AND INDEMNIFY LAW FIRM AND PERSONNEL Client agrees to defend, indemnify, and hold harmless Law Firm and its personnel from any claims or lawsuits by or involving any third parties related to the services Law Firm provides under this Agreement to the same extent as Client is obligated to defend, indemnify, and hold harmless public employees under the Government Claims Act (Gov. Code, § 800 et seq.) and other applicable law (e.g., Gov. Code, § 995 et seq). Nothing in this paragraph shall, however, require Client to defend, indemnify, or hold harmless Law Firm for any action, conduct, error, or omission of Law Firm or its personnel committed outside the course and scope of Law Firm’s services under this Agreement. The obligations of this paragraph shall survive the termination of this Agreement.
15. NO TAX ADVICE
Law Firm has not been retained to provide Client with any tax advice concerning any of the services described in paragraph 2. Any documents prepared by Law Firm may have specific tax ramifications. To be sure Client understands and is certain of all the potential tax consequences, Client should consult with tax advisors regarding these matters.
16. ENTIRE AGREEMENT
This Agreement contains the entire agreement of the parties. No other agreement, statement, or promise made on or before the effective date of this Agreement will be binding on the parties.
17. SEVERABILITY IN EVENT OF PARTIAL INVALIDITY
If any provision of this Agreement is held in whole or in part to be unenforceable for any reason, the remainder of that provision and of the entire Agreement will be severable and remain in effect.
18. MODIFICATION BY SUBSEQUENT AGREEMENT
This Agreement may be modified by subsequent agreement of the parties only by an instrument in writing signed by both of them.
19. EFFECTIVE DATE
This Agreement will govern all legal services performed by Law Firm on behalf of Client commencing with the date Law Firm first performed services.
THE PARTIES HAVE READ AND UNDERSTOOD THE FOREGOING TERMS AND AGREE TO THEM AS OF THE DATE LAW FIRM FIRST PROVIDED SERVICES.
CLIENT WILL RECEIVE A FULLY EXECUTED COPY OF THIS AGREEMENT. [Signatures on next page]
6 DATED: January ___, 2025
CLIENT
By: ________________________________
Client Contact:
Address:
Telephone:
E-Mail Address:
DATED: January 21, 2025
COLE HUBER LLP
By: _______________________________
Derek P. Cole, Esq., Managing Partner
8 Agenda Item #
S
TAFF REPORT TO THE CITY COUNCIL
DAT
E: Regular Meeting of January 28, 2025
T
O: Honorable Mayor and Members of the City Council
S
UBMITTED BY: Derek Cole, Interim City Attorney DC
S
UBJECT: Rescission of Resolution No. 2021/26 Implementing a Policy for the City, Including All of Its Departments, Regarding the Selection of Attorneys Providing Contract Services, and the Review,
Authorization and Execution of All Agreements for Legal Services and Services to be Provided by Attorneys to the City
RE
COMMENDED ACTION
It is recommended that the City Council adopt the attached resolution rescinding Resolution No. 2021/26, which implemented a policy for selecting attorneys providing legal services and managing related agreements and invoices.
F
ISCAL IMPACT
The rescission of Resolution No. 2021/26 will result in a decentralized approach to the budgeting and payment of legal services. Under the current policy, all legal service costs are managed within the City Attorney's Office General Fund budget. Rescinding the resolution will shift the responsibility for budgeting, processing, and evaluating legal services invoices to individual departments.
DI
SCUSSION
On February 26, 2021, the City Council adopted Resolution No. 2021/26. This resolution provided policies for selecting attorneys, reviewing agreements for legal services, and managing invoices for such services. Specifically, the policy:
• P
rovided authority to the City Attorney to exercise discretion over the selection of attorneys providing services to the City;
• Required that all agreements for legal services, whether for the City or its departments, be submitted to the City Attorney for review and approval to ensure compliance with the Antioch Municipal Code, Title 3, Chapter 4, Article II; • Mandated that any agreements for legal services not approved by the City Attorney in writing would be deemed void;
• Required that all invoices for legal services be submitted to the City Attorney ’s Office for review and authorization before payment; and • Ensured that legal services costs were centralized within the City Attorney’s Office budget.
Antioch City Council Report
January 28, 2025 Agenda Item#8 2
D
ue to the City Attorney’s expertise in evaluating effective legal counsel and assessing the reasonableness of billing practices by outside legal firms, the intent of Resolution No. 2021/26 was to improve the quality and efficiency of legal services provided to the City.
T
he proposed resolution rescinds Resolution No. 2021/26. By rescinding this resolution, the City will no longer have a formal policy governing the selection, approval, and payment process for legal services beyond the general provisions of the Antioch Municipal Code.
AT
TACHMENTS
A. Proposed Resolution Rescinding Resolution No. 2021/06 B. Resolution No. 2021/26
ATTACHMENT A
RESOLUTION NO. 2025/**
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ANTIOCH
RESCINDING RESOLUTION NO. 2021/26 IMPLEMENTING A POLICY FOR THE
CITY, INCLUDING ALL OF ITS DEPARTMENTS, REGARDING THE SELECTION OF
ATTORNEYS PROVIDING CONTRACT SERVICES, AND THE REVIEW,
AUTHORIZATION AND EXECUTION OF ALL AGREEEMENTS FOR LEGAL
SERVICES TO BE PROVIDED BY ATTORNEYS TO THE CITY
WHEREAS, on February 26, 2021, the City Council adopted Resolution No. 2021/26, which established a policy for the selection of attorneys providing legal services to the City , the review and approval of legal service agreements, and the oversight of legal service invoices;
WHEREAS, the policy mandated that all legal service agreements, whether for the City or its departments, be reviewed and approved by the City Attorney to ensure compliance with Antioch Municipal Code, Title 3, Chapter 4, Article II, and that any agreements not approved in writing by the City Attorney would be deemed void;
WHEREAS, the policy centralized the review and authorization of legal service invoices within the City Attorney’s Office, ensuring consistent oversight, fiscal responsibility, and budgetary planning;
WHEREAS, the City Council has determined that Resolution No. 2021/26 and the policy is no longer necessary for the operational needs of the City.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Antioch, hereby rescinds Resolution No. 2021/26 Implementing a Policy for the City, Including All of Its Departments, Regarding the Selection of Attorneys Providing Contract Services, and the Review, Authorization and Execution of All Agreements for Legal Services and Services to be Provided by Attorneys to the City.
* * * * * * *
RESOLUTION NO. 2025/**
January 28, 2025
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 28th day of January, 2025 by the following vote:
AYES:
NOES:
ABSTAIN:
ABSENT:
MELISSA RHODES
CITY CLERK OF THE CITY OF ANTIOCH
RESOLUTION NO. 2021/26
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ANTIOCH IMPLEMENTING
A POLICY FOR THE CITY, INCLUDING ALL OF ITS DEPARTMENTS, REGARDING
THE SELECTION OF ATTORNEYS PROVIDING CONTRACT SERVICES, AND THE
REVIEW, AUTHORIZATION AND EXECUTION OF ALL AGREEMENTS FOR LEGAL
SERVICES AND SERVICES TO BE PROVIDED BY ATTORNEYS TO THE CITY WHEREAS, the City desires to implement a policy for the City, including all of its departments, regarding the selection of attorneys providing contract services, and the review, authorization and execution of all agreements for legal services and services to be provided by attorneys (collectively "Legal Services") to the City; WHEREAS, any agreements for Legal Services to be provided to the City shall require approval consistent with Antioch Municipal Code, Title 3, Chapter 4, Article II, and written approval of the City Attorney;
WHEREAS, the City Attorney shall review all invoices submitted for Legal Services pursuant to existing agreements and agreements executed on or after the effective date of this Resolution, and be responsible for authorizing payment of such invoices; and WHEREAS, the City Council believes that this policy will help improve quality and efficiency in the delivery of Legal Services.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Antioch as follows:
Section 1. The above recitals are true and correct and are incorporated herein by reference.
Section 2. The City Council hereby directs that the City Attorney shall exercise discretion over the selection of all attorneys providing Legal Services, as defined herein, for the City including all of its departments.
Section 3. The City Council hereby directs that all agreements for the provision of Legal Services, as defined herein, to the City, including all of its departments, or on behalf of the City that are to be paid by the City shall be submitted to the City Attorney for review and approval, and the City Attorney shall have the discretion to approve and execute all such agreements on behalf of the City when the City Attorney determines the agreement is consistent with Antioch Municipal Code, Title 3, Chapter 4, Article II. Any agreements for Legal Services to the City or on behalf of the City that are not approved by the City Attorney in writing shall be void.
Section 4. All invoices for Legal Services, as defined herein, shall be required to be submitted to the City Attorney for review and payment through the City Attorney's Office. No payment shall be made for Legal Services pursuant to existing or future agreements unless approved in writing by the City Attorney. Therefore, the budgeted
ATTACHMENT B
9 Agenda Item #
STAFF REPORT TO THE CITY COUNCIL
DATE: Regular Meeting of January 28, 2025
TO: Honorable Mayor and Members of the City Council
SUBMITTED BY: Bessie Marie Scott, City Manager
SUBJECT: City Council Appointment of Standby City Council Members
RECOMMENDED ACTION
It is recommended that the City Council appoint the following nominees as Standby City Council Members:
• Mayor Bernal: 1) ; 2) ; 3)
• Mayor Pro Tem Rocha: 1) ; 2) ; 3) (District 2)
• Council Member Torres-Walker: 1) ; 2) ; 3) (District 1)
• Council Member Freitas: 1) ; 2) ; 3) (District 3)
• Council Member Wilson: 1) ; 2) ; 3) (District 4)
FISCAL IMPACT
No fiscal impact is anticipated as there is no compensation for Standby Council Members.
DISCUSSION
Pursuant to State Law ( California Government Code Sections 863 5-8644), Article 6 of Title 2 of the Antioch Municipal Code provides for the appointment of Standby City Council Members “i n the event of a declaration of emergency and a Council Member is unavailable due to being killed, missing or having an incapacitating injury.” The provision for Standby Council Members allows for the continuity of government in the event of a catastrophic emergency.
Each council member shall nominate three standby members and shall indicate the order of priority of each standby member. Consideration shall be given to places of residence
Antioch City Council Report
January 28, 2025 Agenda Item #9 2
and work, so that the greatest probability of survivorship or availability shall exist. While not required, priority shall be given to city residents who are at least 18 years of age and are registered voters. The City Council shall then appoint the nominees as Standby Council Members.
Standby Council Members may become activated during a state of war emergency, a state of emergency or a declared local emergency. No standby member shall become a member of the City Council unless there is a declared emergency described above. The mere vacancy of the regular Council member's office absent a declared emergency shall not activate the standby member. The first priority standby member shall serve during the emergency if his or her regular member is unavailable, meaning that the regular member is killed, missing, or so seriously injured as to be unable to attend meetings and otherwise perform duties. Any question as to whether a particular member is unavailable shall be settled by the remaining available members of the Council, including standby officers who are serving. If the first priority standby member is unavailable, the second priority shall serve, and so forth. Standby members shall serve at the pleasure of the governing body appointing them and may be removed and replaced at any tim e with or without cause.
The provision for standby council members allows for the continuity of government in the event of a catastrophic emergency. Standby council members are not activated in the event of a “regular” vacancy in a council seat.
ATTACHMENTS
A. Antioch Municipal Code Ordinance No. 909-C-S (Standby Council Members) B. California Government Code sections 8635 – 8644
n
n
OBDIlIT.AN'CE NO. 909- C- S
AN' OBDIlIT.AN'CE 01' THE CI' l'Y COUllTCIL 01' THE CITY 01' AlIlTIOCB ADDIlITG ARTICLE 5 TO CRAPTER 1, TITLE 8 01' THE AlIlTIOCB Iv1. u.l\fICIPAL CODE, ]) 1IlAT. T1Q'G w.........n. THE TEMPORARY PRESmIllTG OFFICER, AND ADDIlITG ARTICLE 6 TO CRAPTER 1, TITLE 8
01' THE AlIlTIOCB lVIUNICIPAL CODE, DEALIlITG 1nI.........n.
STANDBYMEMEERS 01' THE CI'l'YCOUllTCIL
The City Council of the City of Antioch does ordain as follows:
SECTION 1: Article 6 is hereby added to Chapter 1, Title 2 of the Antioch Municipal Code, to read as follows:
Article 5. TEMPORARY PRESmING OFFICER
Sec. 8- 1. 501. Selection of temlJorarv lJresidinl! officer.
In the event that a quorum is present at a City Council meeting, but both the Mayor and Mayor Pro Tempore are absent, the members of the Council who are present shall select a Temporary Presiding Officer to conduct the meeting. The Temporary Presiding Officer shall be selected as follows:
1. The Council member with the longest uninterrupted time of service on the City Council.
2. If more than one member has the same amount of uninterrupted time of service on the Council, then the members who are present shall draw lots to determine the temporary presiding officer.
SECTION 8: Article 6 is hereby added to Chapter 1, Title 2 of the Antioch Municipal Code, to read as follows:
Article 6. STANDBY COUllTCIL MEMEERS
Sec. 8- 1. 601. StandbY members authorized.
r:I pursuant to ~ ng~vi:~:
b~~~~;
e~ e~~~ o~~ U:~~6:~_ ~::~
y authorized
1 Sec. 2- 1. 602. Auuomtment.
oFollowing the initial appointment of Standby Council Members, Standby Members shall be appointed at the first regular Council meeting following the swearing- in of newly- elected members, and at such other times as are deemed appropriate. Each Council Member shall nominate three Standby members, and shall indicate the order of priority of each Standby member. Consideration shall be given to places of residence and work, so that the greatest probability of survivorship or availability shall exist. While not required, priority shall be given to Antioch residents who are at least 18 years of age and are registered voters. The City Council shall then appoint the nominees as Standby Council Members.
Sec. 2- 1. 603. Service of Standby Council Members.
Standby Council Members may become activated during a state of war emergency, a state of emergency or a declared local emergency. No Standby Member shall become a member of the City Council unless there is a declared emergency described above. The mere vacancy of the regular Council member' s office absent a declared emergency shall not activate the Standby Member. The first priority Standby member shall serve: during. the emergency if his or her regular member is unavailable, meaning that the regular member U
is killed, missing, or so seriously iI:\jured as to be unable to attend meetings and ' otherwise perform duties. Any question as to whether a particular member is unavailable shall be settled by the remaining available members of the Council, including standby officers who are serving. If the first priority Standby member is unavailable, then the second priority shall serve, and so forth.
Standby members shall serve at the pleasure of the governing body appointing them, and may be removed and replaced at any time with or without cause.
Sec. 2- 1. 604. Filline: of offices.
Upon Standby Members becoming activated, the City Council shall, if necessary, determine offices. In the event that both the Mayor and Mayor Pro Tempore shall be unavailable, then the remaining regular members of the Council shall determine the Temporary Presiding Officer as determined by Section 2- 1. 501. No Standby Member shall become Mayor or Temporary Presiding Officer if any of the regular Council members are available to fill such position, although the Standby Member shall continue to serve as a member of the governing body until the termination of the emergency, until the regular member becomes available, or until the regular member is replaced pursuant to provisions of state law.
u
2 Codes Display Text
https://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=GOV&division=1.&title=2.&part=&chapter=7.&article=15.[1/7/2025 12:48:19 PM] Code: Select Code Section:
8635.
8636.
8637.
California Law >> >> Code Section Group
Up^ Add To My FavoritesGOVERNMENT CODE - GOV
TITLE 2. GOVERNMENT OF THE STATE OF CALIFORNIA [8000 - 22980] ( Title 2 enacted by Stats. 1943, Ch. 134. )
DIVISION 1. GENERAL [8000 - 8899.95]
( Division 1 enacted by Stats. 1943, Ch. 134. )
CHAPTER 7. California Emergency Services Act [8550 - 8669.87] ( Chapter 7 added by Stats. 1970, Ch. 1454. )
ARTICLE 15. Preservation of Local Government [8635 - 8644] ( Article 15 added by Stats. 1970, Ch. 1454. )
The Legislature recognizes that if this state or nation were attacked by an enemy of the United States, many areas in California might be subjected to the effects of an enemy attack and some or all of these areas could be severely damaged. During such attacks and in the reconstruction period following such attacks, law and order must be preserved and so far as possible government services must be continued or restored. This can best be done by civil government. To help to preserve law and order and to continue or restore local services, it is essential that the local units of government continue to function.
In enacting this article the Legislature finds and declares that the preservation of local government in the event of enemy attack or in the event of a state of emergency or a local emergency is a matter of statewide concern. The interdependence of political subdivisions requires that, for their mutual preservation and for the protection of all the citizens of the State of California, all political subdivisions have the power to take the minimum precautions set forth in this article. The purpose of this article is to furnish a means by which the continued functioning of political subdivisions will be assured. Should any part of this article be in conflict with or inconsistent with any other part of this chapter, the provisions of this article shall control.
Nothing in this article shall prevent a city or county existing under a charter from amending said charter to provide for the preservation and continuation of its government in the event of a state of war emergency.
(Amended by Stats. 1974, Ch. 595.)
As used in this article, “unavailable” means that an officer is either killed, missing, or so seriously injured as to be unable to attend meetings and otherwise perform his duties. Any question as to whether a particular officer is unavailable shall be settled by the governing body of the political subdivision or any remaining available members of said body (including standby officers who are serving on such governing body). (Added by Stats. 1970, Ch. 1454.)
Each political subdivision may provide for the succession of officers who head departments having duties in the maintenance of law and order or in the furnishing of public services relating to health and safety.
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ATTACHMENT B
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Codes Display Text
https://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=GOV&division=1.&title=2.&part=&chapter=7.&article=15.[1/7/2025 12:48:19 PM] 8638.
8639.
8640.
8641.
8642.
(Added by Stats. 1970, Ch. 1454.)
To provide for the continuance of the legislative and executive departments of the political subdivision during a state of war emergency or a state of emergency or a local emergency the governing body thereof shall have the power to appoint the following standby officers:
(a) Three for each member of the governing body.
(b) Three for the chief executive, if he is not a member of the governing body.
In case a standby office becomes vacant because of removal, death, resignation, or other cause, the governing body shall have the power to appoint another person to fill said office.
Standby officers shall be designated Nos. 1, 2, and 3 as the case may be. (Amended by Stats. 1974, Ch. 595.)
The qualifications of each standby officer should be carefully investigated, and the governing body may request the Director of Emergency Services to aid in the investigation of any prospective appointee. No examination or investigation shall be made without the consent of the prospective appointee.
Consideration shall be given to places of residence and work, so that for each office for which standby officers are appointed there shall be the greatest probability of survivorship. Standby officers may be residents or officers of a political subdivision other than that to which they are appointed as standby officers.
(Amended by Stats. 2013, Ch. 352, Sec. 176. (AB 1317) Effective September 26, 2013. Operative July 1, 2013, by Sec. 543 of Ch. 352.)
Each standby officer shall take the oath of office required for the officer occupying the office for which he stands by. Persons appointed as standby officers shall serve in their posts as standby officers at the pleasure of the governing body appointing them and may be removed and replaced at any time with or without cause. (Added by Stats. 1970, Ch. 1454.)
Each standby officer shall have the following duties:
(a) To inform himself or herself of the duties of the office for which the officer stands by.
Officers and employees of the political subdivision shall assist the standby officer and each political subdivision shall provide each standby officer with a copy of this article. (b) To keep informed of the business and affairs of the political subdivision to the extent necessary to enable the standby officer to fill his or her post competently. For this purpose the political subdivision may arrange information meetings and require attendance. (c) To immediately report himself or herself ready for duty in the event of a state of war emergency or in the event of a state of emergency or a local emergency at the place and in the method previously designated by the political subdivision. (d) To fill the post for which he or she has been appointed when the regular officer is unavailable during a state of war emergency, a state of emergency or a local emergency.
Standby officers Nos. 2 and 3 shall substitute in succession for standby officer No. 1 in the same way that standby officer No. 1 is substituted in place of the regular officer. The standby officer shall serve until the regular officer becomes available or until the election or appointment of a new regular officer.
(Amended by Stats. 1992, Ch. 1020, Sec. 1.7. Effective January 1, 1993.) Whenever a state of war emergency a state of emergency or a local emergency exists the governing body of the political subdivision shall meet as soon as possible. The place of meeting need not be within the political subdivision. The meeting may be called by the chief Codes Display Text
https://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=GOV&division=1.&title=2.&part=&chapter=7.&article=15.[1/7/2025 12:48:19 PM] 8643.
8644.
executive of the political subdivision or by a majority of the members of the governing body.
Should there be only one member of the governing body, he may call and hold said meeting and perform acts necessary to reconstitute the governing body. (Amended by Stats. 1974, Ch. 595.)
During a state of war emergency a state of emergency or a local emergency the governing body shall:
(a) Ascertain the damage to the political subdivision and its personnel and property. For this purpose it shall have the power to issue subpoenas to compel the attendance of witnesses and the production of records.
(b) Proceed to reconstitute itself by filling vacancies until there are sufficient officers to form the largest quorum required by the law applicable to that political subdivision. Should only one member of the governing body or only one standby officer be available, that one shall have power to reconstitute the governing body.
(c) Proceed to reconstitute the political subdivision by appointment of qualified persons to fill vacancies.
(d) Proceed to perform its functions in the preservation of law and order and in the furnishing of local services.
(Amended by Stats. 1974, Ch. 595.)
Should all members of the governing body, including all standby members, be unavailable, temporary officers shall be appointed to serve until a regular member or a standby member becomes available or until the election or appointment of a new regular or standby member. Temporary officers shall be appointed as follows:
(a) By the chairman of the board of supervisors of the county in which the political subdivision is located, and if he is unavailable,
(b) By the chairman of the board of supervisors of any other county within 150 miles of the political subdivision, beginning with the nearest and most populated county and going to the farthest and least populated, and if he is unavailable, (c) By the mayor of any city within 150 miles of the political subdivision, beginning with the nearest and most populated city and going to the farthest and least populated. (Added by Stats. 1970, Ch. 1454.)
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