Agenda packet — Oakley City Council, March 8, 2022 (part 1 of 2)

AGENDA

REGULAR JOINT MEETING OF THE OAKLEY CITY COUNCIL/OAKLEY CITY

COUNCIL ACTING AS THE SUCCESSOR AGENCY TO THE OAKLEY

REDEVELOPMENT AGENCY/ OAKLEY PUBLIC FINANCING AUTHORITY Tuesday, March 08, 2022
6:30 PM
Oakley City Council Chambers located at 3231 Main Street, Oakley, California 94561 The City follows State and County guidelines regarding indoor mask wearing. Masks are encouraged but not required. We highly recommend all visitors do a self-administered temperature check before entering the Council Chambers. A touchless temperature kiosk is located in the City Hall Administrative Lobby for visitor use.

MISSION STATEMENT: The City of Oakley exists to build and enhance a quality community and to serve the public in a friendly, efficient, responsive manner.

VISION STATEMENT: The City of Oakley will be recognized as a model of civic participation and a vibrant Delta community where families live, work, play, shop and visit.

Agendas are posted in Oakley at Oakley City Hall-3231 Main Street, outside the gym at Delta Vista Middle School-4901 Frank Hengel Way and outside the Library at Freedom High School-1050 Neroly Road; agendas are also posted on the City’s Internet Website www.ci.oakley.ca.us.

A complete packet of information containing staff reports and exhibits related to each item is available for public review prior to an Oakley City Council and/or City Council Acting as the Successor Agency to the Oakley Redevelopment Agency/Oakley Public Financing Authority meeting at Oakley City Hall, 3231 Main Street, Oakley, CA 94561. Any writings or documents provided to a majority of the Oakley City Council, Oakley City Council Acting as the Successor Agency to the Oakley Redevelopment Agency or Oakley Public Financing Authority regarding any item on this agenda will be made available for public inspection, during regular business hours, at the front counter in the Main Lobby of the Oakley City Hall located at 3231 Main Street, Oakley, CA 94561.

Agendas may be picked up at the Oakley City Hall located at 3231 Main Street, Oakley, CA 94561 for no charge. To request information regarding placement on the City’s agenda e-mail distribution list, please contact us at (925) 625-7000.

We provide social media options to stay connected to City Hall through Facebook, Twitter, Next Door and Instagram. Other opportunities to connect with City Hall include Engage In Oakley, Oakley OnDemand on 1 the city's website; and by emailing [email protected]. Constant Contacts. Please contact us at (925) 625-7000 for additional information or at www.oakleyinfo.com.

If you have a physically challenging condition and require special accommodations, please call the City Clerk’s office at (925) 625-7013.

Please keep cell phones/electronic devices turned off during the meeting. Please be advised that City Council meetings are video recorded and attendees may appear on video.

Members of the public may address the Council on items of interest that are within the City’s jurisdiction.

Public comment on items not listed on the agenda will be heard under the Public Comments section of the agenda. In compliance with State law, the Council may not take action on an item that is not specifically listed on the agenda. If you would like to speak on any agenda item, please fill out a blue speaker card available in the lobby and submit it to the City Clerk prior to the agenda item being called. The Mayor will call you by name to the podium to hear your comments and you have up to 3 minutes to speak.

1.OPENING MATTERS
Oakley City Council/Oakley City Council Acting as the Successor Agency to the Oakley Redevelopment Agency/Oakley Public Financing Authority

1.1 Call to Order and Roll Call of the Oakley City Council/Oakley City Council Acting as the Successor Agency to the Oakley Redevelopment Agency/Oakley Public Financing Authority

1.2 Pledge of Allegiance to the Flag

1.3 Proclamation Recognizing March as American Red Cross Month (Stan Massie) Proclamation

1.4 Proclamation Declaring March 7th as COVID-19 Memorial Day Proclamation

1.5 Prescription Drug Awareness Month Proclamation (Danielle Aubin) Proclamation

1.6 East Contra Costa Fire Protection District Update (Brian Helmick, Fire Chief)

2.PUBLIC COMMENTS
2 At this time, the public is permitted to address the Oakley City Council/Oakley City Council Acting as the Successor Agency to the Oakley Redevelopment Agency/Oakley Public Financing Authority on non-agendized items. PUBLIC COMMENTS ARE LIMITED TO THREE (3) MINUTES. In accordance with State Law, however, no action or discussion may take place on any item not appearing on the posted agenda.

3.CONSENT CALENDAR
Consent Calendar items are typically non-controversial in nature and are considered for approval by the Oakley City Council/ Oakley City Council Acting as the Successor Agency to the Oakley Redevelopment Agency/Oakley Public Financing Authority with one single action. Members of the audience, Staff or the Oakley City Council/ Oakley City Council Acting as the Successor Agency to the Oakley Redevelopment Agency/Oakley Public Financing Authority who would like an item removed from the Consent Calendar for purposes of public input may request the Mayor remove the item. Members of the public should submit any Speaker Cards related to the Consent Calendar in advance of the Consent Calendar being considered.

3.1 Approve Minutes from the Special Meeting of the Oakley City Council held February 15, 2022 (Libby Vreonis, City Clerk)
Minutes 021522Sp

3.2 Approve Minutes from the Special Meeting of the Oakley City Council held February 22, 2022 (Libby Vreonis, City Clerk)
Minutes 022222Sp

3.3 Approve Minutes from the Regular Joint City Council/City Council Acting as the Successor Agency to the Redevelopment Agency and Special Public Financing Authority Meeting held February 22, 2022 (Libby Vreonis, City Clerk) Minutes 022222Reg

3.4 Accept Report Out of Closed Session Memo (Derek Cole, City Attorney) Memo

3.5 Approving the Agreements with ET Oakley, LLC, a Delaware Limited Liability Company and NPIF IV Oakley Building II, LLC, a Missouri Limited Liability Company for “Stormwater Management Facility Operations and Maintenance Agreement and Right of Entry” for the Oakley Logistics Center Phase 1 Subdivision 9513 project located at 4000 Wilbur Avenue (APN 037-020-025; Building 1) and 4100 Wilbur Avenue (APN 037-020-026; Building 2) and authorizing the City Manager to execute the agreements (Kevin Rohani, P.E., Public Works Director/City Engineer)
Staff Report

1. Resolution

2. Exhibit

3. Stormwater Agreement - Building 1
3 4. Stormwater Agreement - Building 2

3.6 Approving the Agreement with NP Oakley Building III, LLC, NP Oakley Building IV, LLC, NP Oakley Building V, LLC, a Missouri Limited Liability Company for “Stormwater Management Facility Operations and Maintenance Agreement and Right of Entry” for the Oakley Logistics Center Phase 2 Subdivision 9549 project located at 4300 Wilbur Avenue (APN 037-020-032; Building 3), 4500 Wilbur Avenue (APN 037-020-033; Building 4), 4700 Wilbur Avenue (APN 037-020-034; Building 5) and Satellite Parking Lot and authorizing the City Manager to execute the agreements (Kevin Rohani, P.E., Public Works Director/City Engineer)
Staff Report

1. Resolution

2. Exhibit

3. Stormwater Agreement - Building 3

4. Stormwater Agreement - Building 4

5. Stormwater Agreement Building 5 and Satellite Parking Lot

3.7 Authorize the City Manager to Execute a Consulting Services Agreement with Quincy Engineering, Inc. to Provide Preliminary Design Services for Capital Improvement Project Number 273 – Laurel Road Extension (Teton Road to Sellers Avenue) Project (Kevin Rohani, P.E., Public Works Director/City Engineer)
Staff Report

1. Resolution

2. Quincy Proposal

3.8 Approve the Parcel Map for Minor Subdivision MS 21-977 for the Satellite Parking Lot for the Oakley Logistics Center located east of Logistics Center Drive and north of Building 3 (Kevin Rohani, P.E., Public Works Director/City Engineer)
Staff Report

1. Resolution

2. MS 21-977 Parcel Map

3.9 Approval of Contract Amendment # 1 with F. J. Kennedy and Associates, Inc. for On-Call Consulting Services Related to the Clean Water Program Services for Fiscal Year 2021/2022 (Kevin Rohani, P.E., Public Works Director/City Engineer)
Staff Report

1. Resolution

2. Amendment No. 1
4 3.10 Adoption of the Annual Element Progress Report for the 2015-2023 Housing Element Implementation (Reporting Year 2021) (Ken Strelo, Planning Manager) Staff Report

1. Annual Element Progress Report (Reporting Year 2021)

2. Draft Resolution

3.11 A Resolution Authorizing the City Manager to Execute an Agreement with Peterson CAT to Purchase a 420 XE Backhoe and a 299 D3 Track Loader (Kevin Rohani, P.E., Public Works Director/City Engineer) Staff Report

1. Resolution

2. Proposals

4.PUBLIC HEARINGS

5.REGULAR CALENDAR

5.1 Interview Planning Commission Applicants and Appoint one Applicant to Fill a Vacant Planning Commission Seat (Joshua McMurray, City Manager) Staff Report

1. Draft Resolution

2. Planning Commission Applications (2 total)

5.2 Introduce an Ordinance Repealing Ordinance 06-09 Concerning the Assignment of Planning Commission Functions to the City Council (Derek Cole, City Attorney)
Staff Report

1. Proposed Ordinance

2. Ordinance 06-09

5.3 Authorization to Execute a Purchase and Sale Agreement with D.R. HORTON BAY, INC. for the Sale of the Real Property Containing Approximately

27.0-Acres, Located at the Northeast Corner of E. Cypress Rd. and Knightsen Avenue (APN 032-081-025) (Joshua McMurray, City Manager) Staff Report

1. Site Map

2. Resolution

3. Purchase and Sale Agreement

4. License and Right of Entry Agreement

5.4 Adopt a Resolution Establishing a Proclamation Policy and Approved Proclamation List (Joshua McMurray, City Manager)
5 Staff Report

1. City of Oakley Proclamation Policy

2. Approved Proclamation List

3. Resolution to Adopt the City of Oakley Proclamation Policy and Approved Proclamation List

6.REPORTS

6.1 OAKLEY CITY COUNCIL/OAKLEY CITY COUNCIL ACTING AS THE

6.2 CITY MANAGER
(a) City Manager

7.WORK SESSIONS

8.CLOSED SESSION

9.ADJOURN
6 PROCLAMATION
RED CROSS MONTH, 2022
WHEREAS; in times of crisis, people in Oakley come together to care for one another. This humanitarian spirit is part of the foundation of our community and is exemplified by American Red Cross volunteers and donors. March is American Red Cross Month, a special time to honor the kindness of our volunteers and neighbors who aid families in need every day as they carry out the organization’s 140-year mission of preventing and alleviating suffering; and WHEREAS; despite the ongoing challenges presented by the COVID-19 pandemic, people have stepped up to help others in need. Whether it was responding to this year’s record-breaking wildfires, horrific tornadoes, extreme winter storm cold waves or summer heat waves, volunteers continued to roll up their sleeves to give blood when our country faced a severe blood shortage; and
WHEREAS; last year in Contra Costa County, 518 families affected by 130 devastating home fires, relied on the American Red Cross and our partners for comfort and hope, providing emotional support, addressing immediate needs and helping families recover with emergency financial assistance or community resources. Through our Sound the Alarm program we made 108 households safer by helping residents create a fire evacuation plan; and WHEREAS; Contra Costa County residents donated 17,277 units of lifesaving blood; hosted 788 blood drives, including working several partner sponsored diverse blood drives to help the fight against Sickle Cell Anemia. 8,486 local community members took classes to learn skills like first aid and CPR that save lives; 910 military members and their families received support and services; and humanitarian aid was provided internationally; and WHEREAS; Red Cross volunteers deployed 552 times, dedicating 61,930 volunteers hours to assist neighbors in California and around the country during 41 different disaster relief operations of all sizes, including wildfires in Oregon and California and Hurricane Ida;
WHEREAS; their work to prevent and alleviate human suffering is vital to strengthening our community’s resilience.

We dedicate this month of March to all those who continue to advance the noble legacy of American Red Cross founder Clara Barton, who lived by her words, “You must never think of anything except the need, and how to meet it.” We ask others to join in this commitment to give back in our community.

NOW, THEREFORE, BE IT RESOLVED THAT I, Randy Pope, Mayor of the City of Oakley on behalf of the City Council, hereby proclaim, March 2022 as American Red Cross Month. I encourage all Americans to support this organization and its noble humanitarian mission
March 8, 2022
______________
Randy Pope, Mayor
7 PROCLAMATION
COVID-19 Memorial Day
WHEREAS, COVID-19 (SARS-CoV-2) is an illness caused by a virus that can transmit from person to person and has spread across the world, creating a global pandemic that is having catastrophic effects on human life, our community, and our economy; and
WHEREAS, the early days of the pandemic had much uncertainty and many unknowns; and WHEREAS, many Americans rose to the occasion and persevered, despite the unknowns of the emerging threat, these are our First Responders and “essential” workers who continued to provide critical services to help protect our communities and save lives despite the unknown potential threat to their safety and the fear of bringing the virus home to their families; and WHEREAS, while we saw the best in people, we also saw the worst in people- some unelected and unaccountable government regulators and anonymous bureaucrats seized on the panic to increase their authority and control over our lives and our abilities to provide for ourselves and our families, this we must never allow again; and WHEREAS early efforts to mitigate the spread of COVID-19, observance of public health orders to social distance and stay at home have created unprecedented challenges for small businesses, workers, and schools working to comply with limited resources; and
WHEREAS, as we follow the science, we are discovering that much of what we thought was helping was actually not, and in some cases was making things worse; and
WHEREAS, School districts, teachers, students, and parents are continuing to grapple with the long-lasting effects of closed schools, distance learning, and learning loss; and
WHEREAS, experience is showing us that the symptoms and severity of COVID-19 can vary dramatically by individual, from asymptomatic to deadly, we recognize that a top-down, one-size-fits-all approach was misguided; and WHEREAS, Local and state governments, and public servants have taken bold actions to protect residents, support struggling local economies, and find innovative ways to provide services; and WHEREAS, Each life lost to COVID-19 mattered and leaves a hole in the hearts of loved ones, family members, and surrounding community.

NOW, THEREFORE, BE IT RESOLVED that I Randy Pope the Mayor of the City of Oakley along with the members of the Oakley City Council declare March 7th, 2022, as “COVID-19 Memorial Day” in remembrance of those who have lost their lives and in honor of those who continue to suffer from the impact of this virus. ________________
Randy Pope, Mayor
8 PROCLAMATION
2022 PRESCRIPTION DRUG ABUSE AWARENESS MONTH
WHEREAS: When used as prescribed by a doctor, prescription medicines such as stimulants, sedatives and opioids can be helpful in treating many illnesses, but when these medications are misused, they can have serious consequences; and WHEREAS: Many prescription drugs can alter a person’s thinking and judgment, and can lead to health risks, including addiction, drugged driving, infectious disease, and adverse effects on pregnancy; and WHEREAS: Anyone who takes prescription opioids can become addicted to them. In fact, as many as one in four patients receiving long-term opioid therapy in a primary care setting struggles with opioid use disorder (OUD); WHEREAS: Prescription opioid overdose deaths also often involve benzodiazepines. Benzodiazepines are central nervous system depressants used to sedate, induce sleep, prevent seizures, and relieve anxiety. The Centers for Disease Control and Prevention (CDC) recommends avoiding taking benzodiazepines while taking prescription opioids whenever possible; and WHEREAS: In 2020 in Contra Costa County there were 478,723 opioid prescriptions given to patients which is an age-adjusted rate of 347.4 per 1,000 residents, higher than the state rate of 333.3; and WHEREAS: In 2020, a total of 16,537 emergency department visits occurred in California that were related to any opioid overdose and 93 of those visits occurred in Contra Costa County4; and
WHEREAS: Provisional data from the Center for Disease Control (CDC) indicate that of the estimated 100,306 drug overdose deaths nationally during 12-month period ending in April 2021, 75,673 were from opioids and 161 of those opioid related overdose deaths occurred in Contra Costa County; and
WHEREAS: Overdose deaths from synthetic opioids (primarily illicitly manufactured fentanyl), psychostimulants such as methamphetamine and cocaine deaths also increased in the 12-month period ending in April 2021 as did deaths from natural and semi-synthetic opioids (such as prescription pain medication)5; and
WHEREAS: It is estimated that the “economic burden” of prescription opioid misuse alone in the United States is $78.5 billion a year, including the costs of healthcare, lost productivity, addiction treatment, and criminal justice involvement; and WHEREAS: The City of Oakley supports April 30, 2022 as “National Prescription Drug Take Back Day” as declared by the DEA and encourages residents to locate their local collection site via www.dea.gov and safely dispose of their accumulated expired and unwanted prescription drugs that day and throughout the year; and
WHEREAS: The Contra Costa County Medication Education and Disposal Safety (MEDS) Coalition engages youth and adult stakeholders from across the county to participate in Prescription Drug Abuse Awareness Month activities to raise about prescription drug safety awareness, promote safe medication storage and disposal and ensure naloxone is available for those at high risk of opioid related overdose; and NOW THEREFORE, BE IT RESOLVED THAT the I, Randy Pope, Mayor of the City of Oakley, join with the members of the Oakley City Council in declaring March, 2022 as Prescription Drug Abuse Awareness Month, and encourages all citizens to participate in prescription drug related prevention programs and activities; Be it also resolved that the City of Oakley encourages all community members to pledge, “Spread the Word… One Pill Can Kill”.

March 8, 2022
_____________________
Randy Pope, Mayor
9 Minutes of the Special (Strategic Plan) Meeting of the Oakley City Council held
February 15, 2022

1.Call to Order and Roll Call
Mayor Randy Pope called the meeting to order at 6:32 p.m. at the Oakley Recreation Center located at 1250 O’Hara Avenue, Oakley, California. Vice Mayor Aaron Meadows and Councilmembers Anissa Williams, George Fuller and Sue Higgins were also in attendance.

City executive staff members also joined the meeting.

The meeting was led by facilitator Ellen Cross and her colleague, Maria Pasqual, with Strategy Driver Inc.

2.Public Comments
No public comment was submitted prior to the discussion.

3.Strategic Plan Discussion

3.1 Strategic Plan Objectives and Agenda
The Strategic Plan Objectives and Agenda were made available to everyone in attendance, including the public and was made part of the record.

Ms. Cross reviewed the meeting objectives and agenda, approach, schedule, survey results and interview input.

Ms. Cross moved into a discussion regarding the City’s mission and vision to express the City’s purpose and drive. She received input from the City Council, staff and public regarding the mission and vision to develop a new proposed mission and vision.

Ms. Cross then led a discussion regarding the City’s values and received input from the City Council, staff and public regarding the values and revisions that were suggested.

She reviewed next steps, including the approach and schedule for upcoming meetings to be held March 10 and 31 at the same time, same place.

4.Adjourn
There being no further business, the meeting was adjourned at 8:30 p.m.

Respectfully Submitted,
Libby Vreonis
City Clerk
10 Minutes of the Special Meeting of the Oakley City Council Held February 22, 2022
1) Call to Order and Roll Call
Mayor Randy Pope called the special meeting to order at 5:31 p.m. in the Oakley City Council Chamber located at 3231 Main Street, Oakley, California. Vice Mayor Aaron Meadows and Councilmembers Anissa Williams, George Fuller and Sue Higgins were also present. 2) Public Comments
No public comments were submitted online. One public member was in attendance but did not comment.
3) Closed Session

3.1 CONFERENCE WITH LEGAL COUNSEL—ANTICIPATED LITIGATION Significant exposure to litigation pursuant to paragraph (2) of subdivision (d) of Section 54956.9: (Two potential cases)
Mayor Pope announced the closed session item. The Council met in the antechamber.

There was no reportable action. Direction was given to staff. 4) Adjourn
There being no further business, the meeting was adjourned at 6:28 p.m.

Respectively Submitted,
Libby Vreonis
City Clerk
11 Minutes of the Regular Joint Meeting of the Oakley City Council/Oakley City Council Acting as the Successor Agency to the Oakley Redevelopment Agency and Special Meeting of the Oakley Public Financing Authority held
February 22, 2022
1) OPENING MATTERS

1.1 Call to Order and Roll Call of the Oakley City Council/Oakley City Council Acting as the Successor Agency to the Oakley Redevelopment Agency and Special Meeting of the Oakley Public Financing Authority Mayor Randy Pope called the meeting to order at 6:32 p.m. in the Oakley City Council Chamber located at 3231 Main Street, Oakley, California. Vice Mayor Aaron Meadows and Councilmembers Anissa Williams, George Fuller and Sue Higgins were also in attendance.

1.2 Pledge of Allegiance to the Flag
Mayor Pope led the Pledge of Allegiance.

1.3 Proclamation Recognizing February 17, 2022, as California State PTA's 125th Anniversary
Mayor Pope read the proclamation into the record.
2) PUBLIC COMMENTS
Online Public Comments
Natasha Woods commented she lives in the neighborhood across from the proposed Quick Quack Car Wash and the car wash at this location will bring additional traffic where children walk and ride bikes, as well as noise. She indicated it seems redundant as there is already a car wash at Laurel and Empire. She requesting the Council consider revoking the conditional use permit (CUP).

Steph De La Rosa commented Oakley does not need another gas station, storage, car wash, mini mart, fast food or another Mexican food place.

Public Comment Card
Conan Moats addressed the discussion of appointment of another member to the Planning Commission which occurred during the last City Council meeting. He shared he was personally insulted, but more importantly, it was a waste of taxpayer money and time. He commented that 3 months ago, there was an open call to apply for the 12 Planning Commission and when he ran for City Council he campaigned for having the Planning Commission reinstated as one of his goals. He shared he was not elected, but he was happy to see there is now a Planning Commission. He mentioned he applied for the Planning Commission and was unsuccessful, in 6th place, when the selection was made. He shared that thereafter, he received emails and phone calls congratulating him that he made it to the Planning Commission. He mentioned City Manager Josh McMurray solicited him to join the Planning Commission and he thought it was a done deal but it seemed highly irregular to him the way events unfolded. He commented that Councilmember Fuller seems to have a personal vendetta against him which is peculiar and Councilmember Fuller represented falsely that he (Moats) came in last place and he didn’t see why he would be appointed if in last place. He added that Vice Mayor Meadows suggested that had he been able to go back in time, he would have voted differently which didn’t make sense to him. He concluded that moving forward, he doesn’t think this is about procedure, he thinks this is about the kind of thing to be wary of for the Planning Commission to prevent wanton development. 3) CONSENT CALENDAR

3.1 Approve Minutes from the Special City Council meeting held November 16, 2021 (Libby Vreonis, City Clerk)

3.2 Approve Minutes from the Regular Joint City Council/City Council Acting as the Successor Agency to the Redevelopment Agency/Public Financing Authority Meeting held January 11, 2022 (Libby Vreonis, City Clerk)

3.4 Approve Minutes from the Regular Joint City Council/City Council Acting as the Successor Agency to the Redevelopment Agency/Public Financing Authority Meeting held February 8, 2022 (Libby Vreonis, City Clerk)

3.5 Accept Report Out of Closed Session Memo (Elizabeth Fratarcangeli, Assistant City Attorney)

3.6 Acceptance of work associated with the Laurel Road Resurfacing Project (Empire Avenue to O'Hara Avenue) – Capital Improvement Project Number 250 (Kevin Rohani, P.E., Public Works Director/City Engineer)

3.7 CalRecycle Notification of Intent to Comply – Adopt a resolution to file a “Notification of Intent to Comply” related to implementation of Short-lived Climate Pollutants: Organic Waste Reductions requirements in Title 14 California Code of Regulations (14 CCR) (Senate Bill 1383) to CalRecycle by March 1, 2022 (Ken Strelo, Planning Manager)
13 3.8 Waive the Second Reading and Adopt the Ordinance Approving a Zoning Ordinance Text Amendment to Section 9.1.512 (Commercial RecreationAquatic[CR-A]) of Chapter 1 of Title 9 of the Oakley Municipal Code (RZ 02- 21) (Ken Strelo, Planning Manager)

3.9 Adopt Resolution Amending the Employee Personnel Manual adding section 9.16 for Police Management (Jeri Tejeda, HR Director)

3.10 Consideration of a Resolution Approving the Fiscal Year 2021/2022 MidYear Budget Review and Adopting its Recommendations for Revising the Fiscal Year Operating and Capital Budgets and increasing the General Fund Reserve Policy from 20% to 30% (Tim Przybyla, Finance Director) Councilmember Fuller requested to pull item 3.10.

It was moved by Vice Mayor Meadows and seconded by Councilmember Higgins to approve the remainder of the Consent Calendar. Motion was unanimous and so ordered. (5-0)
Item 3.10
Councilmember Fuller referred to page 435, items 24 and 25. He asked for staff to explain what is happening on those involving the Scheer property.

Finance Director Tim Przybyla explained there was a $350k budget adjustment for the railroad platform in the Downtown.

Councilmember Fuller commented it is frustrating to approve capital improvement projects (CIPs) with the budget, but he is not approving of that project. He moved the item bifurcating items 24 and 25 on page 435 and approving the remainder.

Mayor Pope requested clarification if Councilmember Fuller’s motion is to approve the resolution with exception of items 24 and 25.

Councilmember Fuller explained if items 24 and 25 are bifurcated, the whole Council can come back to vote on items 24 and 25.

City Attorney Derek Cole commented that for sake of clarity, if Councilmember Fuller wants to move the item without the two items listed, with a second to the motion, they can proceed to vote or an alternate motion may be made to approve the resolution in whole.

Councilmember Fuller commented he understands. He explained he is trying to avoid totally removing items 24 and 25 from the dais, on second motion. 14 Mr. Cole commented that the action is approving the resolution so if Councilmember Fuller wants to remove two items and approve the resolution without them, it approves the resolution, but there would have to be a separate resolution for the other two items which would be of concern for the record.

Councilmember Fuller commented he will let the motion stand. He expressed it is frustrating for him the way CIPs and budget are brought forth together for approval because if they don’t approve of a CIP, they have to say no to the budget. He mentioned he wants to look at CIPs and the budget separately. He expressed he doesn’t approve of the train platform.

Mayor Pope called for a second to the motion. The motion died for lack of a second to the motion.

It was moved by Councilmember Higgins and seconded by Councilmember Williams to adopt the resolution. AYES: Higgins, Meadows, Pope, Williams. NOES: Fuller (4-1) 4) PUBLIC HEARINGS

4.1 Second Continued Public Hearing for McDonald’s Drive-Through Quick Serve Restaurant at Laurel Plaza Conditional Use Permit (CUP 03-20) and Design Review (DR 09-20) – Request for approval to construct and operate a 4,365 square foot quick serve restaurant with dine-in and drive-through service; APN 035-510-006 (Ken Strelo, Planning Manager) Planning Manager Ken Strelo presented the staff report and a PowerPoint presentation.

Mayor Pope commented he would like to hear from the applicant, take questions from the City Council, hear public comments, then close the public hearing.

City Attorney Derek Cole requested to speak before the Council heard from the applicant. He requested to put the CUP finding slide back on the screen which contains 5 factors that the Council can look at in determining whether to approve or deny the CUP for the project. He explained that the factors don’t allow the Council to take into account things like fast food causes obesity, Fast food is unhealthy, we don’t want any more fast food in the City or along the lines of they prefer something else; these are things beyond their control. He shared they are here because in 2006 when a prior City Council approved the overall project, they left this piece open if a developer wanted to put a fast-food restaurant or a restaurant with a drive-through. He commented that a restaurant with a drive-through is already allowed. If mentioned is a developer decided to put a business in that doesn’t use a drive-through, they would not be here today. He explained the restaurant is not the issue; the drive-through with the restaurant is what gives the Council authority to review these 5 factors. He mentioned he feels it is important to put into context East Cypress and Laurel Road. He explained the East Cypress Specific Plan includes 5,000 entitled residential lots and 80% of those lots are moving forward so there will be an amount of traffic that will generate, but the roads are 15 designed to accommodate that traffic. He mentioned he believes it is important to consider the amount of traffic from the many homes to be built each year in comparison to a single drive-through across the street from the school. He added that it is important to put the future history in context as there will be considerably more traffic, far more than this project will generate than the residential development already entitled and is a factor the Council should consider when making its decision. He commented there is a parking issue across the street when children are dropped off to school, but the Council should keep in mind that something happening on public property for lack of an adequate queuing line during peak times is spilling over to private property. He mentioned there is a fairness issue there the Council should take into consideration; if a developer has done everything it can, is it fair to hold a developer to it and deny the project for a condition that is beyond its control. He expressed he believes these are all things appropriate for the Council to consider.

Kevin McCauley, on behalf of the applicant, and owner/operator of McDonald’s, Brad Goldblatt, addressed the Council. Mr. Goldblatt shared he is the local McDonald’s on Main Street owner and operator which opened in 1993 and has served the community for 28 years. He mentioned it is a family business spanning 3 generations with over 50 employees. He explained the new McDonald’s will provide an opportunity to hire 50 more Oakley residents, it has a beautiful design, and state of art technology for efficiency. He shared they have partnered with many different organizations in Oakley including schools for student achievement awards, 500 free meals for Impact Soccer; and food donation programs, including a weekly donation to the Oakley Seniors. He shared they also help support Ronald McDonald charities and houses. He mentioned they take food quality and food safety seriously and take care of their staff and guests with highest standards. He requested the Council consider approval of the project. He mentioned this will be an incredible addition to Oakley.

Kevin McCauley shared a PowerPoint presentation including elevation changes, site plan changes, drive-through speaker decibels, and a queuing plan, if needed.

Councilmember Fuller commented he is confused by what Mr. Cole has said. He mentioned he is holding a memorandum dated June 25, 2007, from Mr. Strelo that was used during a Council meeting discussing Laurel Plaza and there was mention of a QSR, 2 coffee shops with drive-throughs, a Rite Aid, and bank building. He mentioned he has the QSR and diagrams. He asked for clarification to what then Councilmember Carol Rios commented, according to the minutes, that the proposed development looks similar to the shopping center in Brentwood at Balfour and Walnut which is unattractive and struggling. He went on to share that the minutes indicate she voiced concern with safety issues and she indicated she is looking for a destination shopping center at this corner. He shared that the minutes also reflect that Councilmember Brad Nix mentioned that good efforts have been made by the developer, but additional safety features are needed and the project will benefit Oakley economically. He mentioned they approved Rite Aid, but mentioned they would need to come back to replace the QSR and coffee and thereafter Fresh & Easy was approved. He expressed he is confused because Mr.

Cole said in 2006 it was all approved.
16 Mr. Cole explained that in 2006, basic entitlements were approved which included insertion into a zoning ordinance that a drive-through restaurant could be allowed subject to a CUP and that was his reference. He mentioned there has been a detailed and complex attempt by the owner to entitle and get started some of these businesses that Councilmember Fuller mentioned, but it is his understanding that the developer was never able to do it as practical business matter.

Mr. Strelo commented that the staff report from April 27 has the entitlement history; originally when the project came forward it was for the Rite Aid drive-through and design review which also included the conceptual plan, square footage, and other potential types of uses on the remainder of the site. He explained that is how the CEQA study is done, by looking at the square footage for the site which he believes was 39,000 square feet of commercial space all combined. He mentioned it included 2 other drive-throughs, a fast food drive-through and coffee shop/multi-tenant drive-through, similar to Domino’s at Cypress and Main or the Starbucks near Round Table Pizza, so several tenants but one drive-through for one of the tenants. He shared the drive-through, restaurant and CVS never came to fruition so in April, just after the Council originally approved the project, the Planning Commission looked at the Fresh & Easy project, proposed in the area where the 2 drive-throughs were proposed. He shared a supplemental study was done to identify any new impacts the Fresh & Easy project would have that were not identified with the previous uses and it did not have any new impacts so entitlements were received, and unfortunately, Fresh & Easy pulled stores from U.S. and that project never came to fruition. He mentioned in the meantime, B.A.C. Bank was built and remains now. He shared that approximately 9 years later after that first entitlement, the Chevron project came forward, was approved, and was constructed. Since then, he mentioned staff received applications around November 2020 for the McDonald’s and Quick Quack car wash. He shared that as part of the Chevron project, it included an ancillary car wash that was never built but was part of the approvals, and the Quick Quack car wash is not a replacement for it, but it is proposed in approximately the same area.

Councilmember Fuller commented that in 2007 it was an unsafe situation with a QSR and coffee shop and now there are 30,000 more people in Oakley.

Councilmember Williams commented that Resolution 05-08 dated April 21, 2008, partially talks about what Councilmember Fuller was just referencing, but it also includes, “highlights of the plaza include a pedestrian accessible shopping center that has been designed to create an open, walkable center and neighborhood hub” so she thinks that may be part of the reason why the Council at that time said that the drivethrough wouldn’t work and the Planning Commission turned it down indicating it wanted something better. She inquired if Laurel Road was intended to be a major arterial in 2008.

Mr. Strelo confirmed it has always been intended to be an arterial. 17 Councilmember Williams commented that a walkable center was the Council’s vision then and is her vision now so she is wondering why the plan deviated. She mentioned the developer has held onto it which is admirable, but the Council has called out over time that it is not the right fit so she was wondering if Laurel had always been an intended thoroughfare. She mentioned McDonald’s brought up a slide that mentioned the number of cars at particular times, 9-10 a.m. with 70 cars. She inquired where the data is coming from and how long ago it was estimated.

Kevin McCauley responded that it is current data from the other existing location in Oakley as of today and it is what their estimate would be.

Vice Mayor Meadows inquired if staff is happy with the design brought back by McDonald’s.

Mr. Strelo confirmed staff is happy with the design. He mentioned staff went back and forth with the applicant to get to this design.

Mayor Pope called for public comments. He mentioned comments are limited to 3 minutes, everyone should maintain a professional, business-like atmosphere where people are comfortable speaking with no audible reaction, i.e., boos or applause so everyone feels that they can be heard.

Online Public Comments
Michael Dupray commented regarding peer reviewed, scholarly studies on traffic safety and health effects from fast food and drive throughs near schools. He suggested policy interventions limiting the proximity of fast-food restaurants to schools will help reduce adolescent obesity. He expressed his hope is that this drive-through and type of restaurant are not allowed there.

Samantha Greneir commented that safety needs to be the first priority and it will only create a further unsafe environment for children walking, biking or driving to school, as well as add traffic to an already impacted road. She urged the Council not to add a drive-through to the McDonald’s.

Wendy Wacker made safety suggestions for Laurel Plaza traffic operations.

Michael Rhodes expressed concern regarding trash and fast food near Laurel Elementary.

Andrea Wacker expressed opposition to the drive-through, commenting on hours of operation, noise from cars and speakers, garbage, crime, loitering and emissions from vehicles. She urged the Council to vote no on the drive-through. 18 Heather Watters requested the Council deny the drive-through for safety and also indicated the location is not acceptable or logical for a fast-food chain.

Karen Riach commented there are other locations on Laurel to place a McDonald’s and car wash. She mentioned homeless already loiter at the neighboring McDonald’s and the location was never zoned for a car wash to back up to the backyards of Oakley residents.

Juli Del Barba Favalora commented she has followed the process and with continued progress there will be challenges, but she feels confident the Council has taken into account the many concerns and she is hopeful that a outcome which satisfies all will be achieved.

Shelly Fitzgerald submitted a letter, petition signatures, comments of people who signed the petition and maps.

Danielle Campbell expressed strong opposition to the CUP for the drive-through for health and safety reasons. She indicated in 2008, the plaza was approved for retail business that invited pedestrian-friendly shopping and patronage from the Oakley community and it should be developed with the community in mind.

Rebecca Mears expressed opposition to the McDonald’s and Quick Quack car wash on Laurel because it is dangerous and because of its negative impacts on the community.

She requested the Council find a better local business to benefit the community for that area.

Kevin Tiernan expressed opposition to the drive-through for safety reasons and opposition to the car wash.

Marilyn Tiernan expressed opposition to the drive-through for safety reasons. She requested the Councilmembers consider if they would let their children walk across that road, let alone with a drive-through.

Lindsay Waters requested to speak.

Public Comment Cards
Conan Moats commented that the meeting now demonstrates success; he feels like the community has already won. He mentioned Vice Mayor Meadows inquired if staff is happy. He mentioned if the community had not come together to indicate it is unsafe, the drive-through would have been approved. He commended the residents for coming together. He mentioned he appreciates the applicant mentioning McDonald’s does charitable work, but he also feels McDonald’s believes in Adam Smith’s theory of selfinterest to make money. He explained they have spent tens of thousands of dollars since the last meeting to try to change it to get it to pass. He mentioned the McDonald’s community benefit program seems quid pro quo and it seems odd that McDonald’s is 19 making these suggestions to benefit the community at same time they are applying. He commented the traffic seems unrealistic and the number of cars doesn’t take into consideration Freedom High School as there is no school nearby the McDonald’s on Main. He implored the City to do what is right for its residents; the City needs more businesses and to attract more businesses, but the CUP for McDonald’s is not right.

Shelly Fitzgerald referred to maps she intended to share with the Council, but she understands they were emailed to the Council. She mentioned she has heard a number of times the CUP cannot be denied because of existing entitlements, but they have done research and cannot find anything supporting prior approval for a CUP for a drivethrough restaurant at Laurel Plaza. She mentioned on the first map approved on Resolution 24-08, the Council approved the Rite Aid, but everything else on that map was continued to a later date for a lot of concerning reasons, cited by Mr. Strelo in the June 25 memo. She mentioned in his memo he stated that the adjoining buildings are an important component of the outdoor rooms, they wanted to create shade, a reason to sit outside, and natural surveillance and monitoring by businesses facing the outdoor amenities; the shopping center is fragmented by multiple drive-throughs that complicate pedestrian circulation; and the design of the center revolves around 4 drive-through uses that appear to function as stand-alone uses. She mentioned in a later staff report, staff mentioned multiple times that the developer will be replacing the 2 drive-throughs at the front of the site with the neighborhood market which is what they came back for on April 21 and they were approved in Resolution 05-08 for the Fresh & Easy, the bank, and the retail pads. She mentioned again, the staff report indicates the neighborhood market replaced the QSR and coffee drive-through. She shared she has asked herself several times if the Council has discretion to deny the CUP so she researched it and found in the Oakley Municipal Code that an application for a CUP is an application “to establish a land use within a land use district that does not the establishment by right.” She commented that the restaurant is allowed but the CUP is a discretional right, but it does allow the granting of a land use permit after a public hearing. She mentioned it has been acknowledged by staff that the Council has discretion to approve or deny the CUP after the public hearing. She shared in her mind, the fear of being sued by a big corporation or developer who “changes the rules” in the middle of the game is unfounded. She added that considering the Federal Court should show respect for the local authority’s professional judgment, in the decision in McDonald’s Corp v. City of Norton Shores, a higher court will likely see that this is the type of decision that Federal law gives local officials broad discretion to make. She mentioned that is what they are asking the Council for tonight, for its discretion. She commented that a City Council that would deny a CUP for a drive-through within a school zone would certainly be seen as exercising the utmost professional judgment.

A person in the audience asked if he could read Michael Dupray's comment because Mr. Dupray was not feeling well and was unable to attend.

Mayor Pope responded he could not and the City Council received his written comment.

Another person in the audience asked if Mayor Pope could read it. 20 Mayor Pope responded that the Council has accepted written comments and it is not customary to read those comments, but he will read this comment tonight. He read Mr.

Dupray’s comment into the record.

Lindsay Waters commented that feeling like getting up to speak is redundant is an understatement. She mentioned over the last year, she, along with other residents, have worked tirelessly to perform research regarding CUPs in jurisdictions of City Councils and the decision-making process, they have read case law trying to educate themselves on the rights they do have, they have reached out to neighbors, they have met with the developer, City leaders, Police and the Council, they have attended Council meetings, commented publicly and emailed, they have organized a community alliance group, Oakley Residents United, they have held signs at the proposed site to educate the community, they gathered a petition of over 880 signatures in opposition to the proposed CUP, they have reached across barriers of prestige and title, shaking hands and voicing safety concerns. She mentioned they expect their voices have been heard and their sentiments understood and ultimately a decision made in the best interest of the community, more specifically, our children. She mentioned they have either used or attempted to successfully use every avenue that they have for their plea to be heard, but have received a repeated sentence, "It has already been approved", but if it were already approved, they wouldn’t be here tonight. She shared it is clear that the restaurant is already approved, but the drive-through is not. She mentioned just recently a drive-through was approved for Main Street but no one came forth to oppose it because there are not the same concerns. She mentioned another quote they hear is ”We have checked all of the safety boxes; it is safe.” She asked if it is safe, why there no other that exist in the County when it seems the most lucrative place for them. She mentioned another pushed upon phrase is “The owner has property rights; we cannot infringe on their property rights”. She mentioned this is zoned for business; it is not zoned for drive-through restaurant, a completely separate discretionary component that the Council has the right to deny; it is simply zoned for a walk-up restaurant and that is as far as their right go. She mentioned threat of a lawsuit if the Council denies the application is deplorable, a threat being explored against the interest of safety of pedestrians, most young, school-aged children unaware of distracted drivers. She commented Mayor Pope voted against the gas station and she can’t imagine he feels this is any safer. She commented Vice Mayor Meadows addressed public safety in his campaign and she asked him to consider safety concerns the project presents. She commented Councilmember William’s children attend the school along with her daughter and requested she keep their faces in mind when the Council deliberates. She applauded Councilmember Fuller’s unwavering commitment to children’s safety and expressed appreciation for Councilmember Higgins’ service to the community. She requested the Council consider denying the CUP.

Roberto Estrada expressed concern regarding the safety of children and increased traffic due to more homes being built in relation to the project. He mentioned if approved, this is an accident waiting to happen. He agreed with the previous two 21 speakers and requested the Council follow the mission statement to have a quality and safe community.

Diane Merritt shared she lives in Woodglen Estates and she is against the drive-through as it is in the worst location in Oakley in defense of grammar school children; no matter if there is signage for people not to walk over the drive-through lanes, it is difficult for people to obey signage now as they are used to the way they are walking and will take a chance to try to get away with it. She mentioned inevitably, a school child who doesn’t know how to read and a careless drivers will collide, and a child will be seriously injured or killed. She commented children should never be put in a leave it to chance situation and the City should never take this kind of risk.

Ann Marlow-Rendler inquired if anyone on the Council lives in Woodglen. She shared getting onto Laurel in the morning is already difficult and dangerous with traffic driving fast and adding this McDonald’s is insane and wrong; there is not one good thing about putting it on that corner. She mentioned there are three schools, high school kids drive crazy and will go there, and parents not walking their kids across the street will still park there. She expressed Oakley needs friendly businesses like an independent coffee shop to provide a nice, calm center to walk up and enjoy. She indicated the neighborhood will suffer along with elementary school if approved. She mentioned if the Council doesn’t believe her, they can try to get onto O’Hara or Laurel from Woodhill at 7:30-7:45am with traffic.

Alicia Torres shared her personal story when she was 19 years old and hit a 10-year old boy whose bike went halfway under her car and the terror she felt when she thought he was dead. She shared his brother helped him to his feet and to his bicycle and they rode off. She mentioned although she was told the boy was at fault for not following signals when he darted into the street, she was distracted and terrified. She commented that this situation is similar and you can teach children to obey traffic signals, but she dreads the day they will hear about kids getting hit.

Matt Beinke with O'Hara Properties mentioned they have owned Laurel Plaza for 20 years and have 20,000 residential units and over 2 million square feet of commercial space in the County so this is not his first hearing or controversial conversation. He commented that commercial comes after housing and everyone has opinions on uses and so do they. He shared they lost some opportunities due to market and changes in technology. He mentioned Mr. Strelo mentioned they have 37,000 square feet, but it is actually 57,000 square feet, but it was significantly reduced with what they had to do for the front, reducing it by 20,000 square feet which is significant. He expressed he understands it is a controversial use, but it is an allowed use. He mentioned they are held to industry standards and aside from emotions, they must go through the process, and they have gone through that for the center. He compared it to a residential subdivision where the lots and roads are already put in and now there are no more entitlements, they just need to build. He explained they wouldn’t be here if the City had an active Planning Commission, but it could still be appealed to the City Council. He commented that the traffic analysis and other reports were done following industry 22 standards, by technical experts, not based on opinion. He mentioned the last study they did at the request of the City, but it was not part of the project initially. He reminded them there is 500,000 square feet potentially coming to Laurel and O'Hara and this has always been a high traffic area even before the City incorporated. He mentioned while there are complexities with some projects, but here it is straight forward; they are following the rules of California land use law and they are all held to that standard. He expressed he gets it is a safety concern, but this project is not creating the problem for the school. He commended McDonald’s for trying to help solve concerns as it is not a requirement for the project. He shared that the school district has been invited to engage in residential and commercial projects they have handled, but rather than come to the table, the school district sends letters at 4:59 p.m. to the City Council. He explained they did the traffic analysis, they have come up with proposals and ideas that are not required, and they want to see a positive impact, but it would be nice to see everyone in the room. He mentioned the school district’s track record has not been good, but he hopes it will change with the new Superintendent. He expressed he expects it to be approved because as a matter of law it should be approved; any denial of the project would be unsupported by substantial evidence and would be arbitrary and capricious.

Karen Riach agreed with everything said. She commented the school should be a focal point and there are other areas appropriate for a drive-through, even on Laurel, but not across from an elementary school. She indicated they should be ashamed of themselves and have some respect. She requested if the Council approves the restaurant to approve it without a drive-through.

Mary Roney agreed with the opposition comments made. She mentioned she sent a letter and even through the CUP meets the 5 criteria, it doesn’t meet the Plaza approval plans for a walkable center for that area. She shared a McDonald’s without a drivethrough does and she is okay with that. She mentioned the homes on E. Cypress will add traffic to Laurel Road and it is bad enough with the gas station; she can’t imagine what it will be like with a car wash, the gas station and a drive-through restaurant. She expressed she is opposed to it. She mentioned idling cars create pollutants and more houses will only increase the numbers and the people living there will be breathing in the pollutants, not Mr. Beinke.

Liz Elias commented that many people spoke loudly against the drive-through and the Council should extrapolate; for every one person that comments, there are hundreds more that haven’t bothered to comment because they are disgusted and tired of inaction, being ignored, and shouted down and the vote always going against what the people want. She requested the Council listen to the people do their job, not planned schemes. She mentioned a traffic survey at the behest of the applicant is not exactly unbiased or accurate. She commented that Laurel will get busier with new houses coming in, the traffic survey is inaccurate due to COVID, the community is not happy with it, it is not safe, it is a bad idea, there is plenty of legal precedence for denying CUPs, and it can still be voted down. She mentioned sooner or later someone will be 23 killed before the City wakes up to install safety measures. She urged the Council to be proactive and deny the CUP, listen to the people, and turn it down.

Bill Chaddock commented that community programs are good. He shared he works for a huge grocery chain and he has seen ugly side of community benefit programs and it needs to be watched. He mentioned McDonald’s food for seniors is not good for sodium. He shared other cities are combating CUPs; i.e., Dublin has drive-throughs that are causing too many problems. He asked if they want a better standard of life here or just the same as everyone else has. He commented was watching a cattle shoot, the drive-through, to get the hamburger because that is where the beef is. He responded to the comment made regarding the school district being part of the problem, but the school is where it is way before anything else. He shared this is a good neighborhood, it is wonderful, and needs to be a safe place. He asked how much revenue the City gets from these projects, i.e., Amazon, and how many Oakley residents are hired as employees.

Donna Chaddock commented they have been attending Council meetings for one year and have a vested interest; they don’t want to see a fast-food drive through and there is not one person that has said they are in favor of it. She mentioned Mr. Strelo recommended the Council adopt the resolution and Mr. Cole, 2 or 3 sessions ago, indicated the Council gets to choose yes or no. She also mentioned she is glad O'Hara Properties got up to speak. She read the 3rd factor from the slide on the screen, when performing a CUP analysis, “Project will be designed, constructed, and operated in a manner compatible with intended character of the General Plan and zoning regulations.” She commented that O'Hara Properties talked to the City Council and negotiated because the community didn’t want it then and they don’t want it now at that site or a Quick Quack car wash. She asked the Council what it will decide, to vote with the community or with the corporation.

M. Lozoya submitted a comment card and did not wish to speak, but rather have her comment entered into the record. Mayor Pope read her comment into the record which indicated to say no to the CUP for the drive-through as it is too close to the school; it is a very busy intersection with too many students, families and traffic. She requested the Council vote down the CUP to ensure the safety for all of the citizens of Oakley.

Paul Seger commented it is clear this intersection is gold with all of the traffic; it is going to be the entrance into the city. He mentioned the issue is not the restaurant. He added that one of the Councilmembers confusingly stated it is already approved and there is nothing they can do, but the CUP has not been approved. He mentioned it has been over a year now; the owner willingly tried to move forward without the traffic study before compelled to do a new traffic study, but the new traffic study doesn’t have a cumulative impact of all 4 corners and traffic generated when completely built out. He shared he is not a fan of McDonald’s; this is low-hanging fruit, but this provides an opportunity to do something clever with the development. He expressed he feels the developer is lazy. He mentioned the McDonald’s shows how important and dramatic this corner will be; there are 3 other corners to build on and this is put on the Council 24 because it is supposed to be a neighborhood development and he hopes the Council sees clear to doing so. He expressed he doesn’t appreciate outsiders talking down upon the Superintendent. He asked the Council to put their child at this school and vote how it will impact their family and friends. He mentioned great points were made by others and indicated Councilmembers Fuller and Williams did a great job stepping up.

Tosha Grey commented that the City Council has been presented with findings from the community and from Greenfire Law, and as implied from the supplemental traffic study.

She mentioned in regard to the project’s consistency with various elements of the General Plan, there is a recurring theme reiterated on the City’s website as well as in the language of the General Plan, policy 2.3, to promote community and residential development that supports the small-town character, goal 3.2 to promote walking and bicycling, and 2.2 to promote the high-quality of life in Oakley. She mentioned the Council is charged with a difficult challenge of balancing the intended small-town character while promoting long-term economic success. She mentioned 41% of responses in the City’s recent survey felt Oakley is headed in the wrong direction; there are too many gas stations and fast-food being built relative to other businesses. She mentioned no comments of support have been made for the project other than comments of those with financial interest. She commented the proposed site exists within a school zone and the developer was aware the site was located within a school zone when they purchased it. She mentioned school-aged pedestrians exist at this location, primarily from Laurel Elementary and O’Hara Park Middle School; whether they cut through Laurel Plaza or use the sidewalks along O’Hara and Laurel, this project will force them to traverse along traffic of a gas station, quick-serve drive-through, and ultimately a car wash. She added that additional safety measures added from a supplemental traffic study are appreciated although it is unlikely that they would have been submitted by the applicant if not for the safety concerns presented by the local community. She indicated the only way to mitigate the inherent dangers of a quick-serve drive-through adjacent to a school and in the path of pedestrian children is to not build a quick-serve drive-through in a school zone. She mentioned the existing gas station is a prime example of a project that completely disregards the safety of existing surrounding uses, with ability to sell tobacco products less than 400 feet from an elementary school and 700 feet from ball fields. She mentioned the City has passed an ordinance preventing tobacco sales within 1,000 feet from schools or parks, adopted in December 2018, just months after the business was granted its license. She expressed it is unfortunate the prior Council did not exercise its right previously of discretionary decision-making in approving the sale of tobacco products in front of an elementary school. She requested the prior poor planning and decision-making not pave the way and set precedence for the remaining development of this project. She shared teachers ask their students to double-check their work and ask them to check if their answer seems logical or reasonable and if no, the student should go back and check their work.

She asked the Council if the placement of a fast-food drive-through not only within a school zone but within 150 feet of an elementary school sounds logical and if their answer is no, she urged them to please go back and check their work, have the developer check their work, and come back with a project that is logical consistent with the existing surrounding uses.
25 Chrishan Ross addressed her concerns regarding the Quick Quack car wash and drivethrough McDonald’s and their safety risks and issues. She expressed she feels their voices need to be heard and needs met. She added it is incumbent upon the City Council if it wants to maintain the small-town character to deny the CUP for the drivethrough. She shared she can’t imagine their neighborhoods being burdened with such poor additions. She shared she is a teacher and can’t imagine how students could concentrate with sounds of a car wash or drive-through orders. She mentioned this is not a smart plan and there are smart people on the Council that can make good decisions for the best interest of the community. She expressed she hopes they not afraid by a legal battle. She offered to be the first to contribute to a “Go Fund Me” campaign if the City needs it.

Mark Sutter shared he has been a Woodglen resident for 24 years, it is a great neighborhood, and he has lived there a long time. In regard to the traffic analysis, he mentioned he is not sure where the comment is founded that the area always been a high traffic area. He commented it was a 2-lane road with stop signs, with no Police Department or City Hall, so is a wrong statement. He shared he walked from Woodglen to 7 Eleven where there was trash within 400 feet and he wonders how much worse it will get. He expressed he hopes the decision is heard from their point of view, not swayed by there could be liability of being sued by the developer. He mentioned if a drive-through car leaves and kills a child, it is on their conscious. He inquired who they can call if someone is sleeping behind their homes. He mentioned he thinks there is a higher cost to a child getting killed. He begged them not to let it happen to their neighborhood. He commented the growth on E. Cypress is out of control and is overpopulating the road and the only thing that is preventing something tragic from happening is the land owner who hasn’t sold his property to allow that property to be developed all the way through.

Kelly Kroll mentioned she grew up in Los Angeles and New York and could have moved anywhere but fell in love with Oakley because it has so much potential. She mentioned she doesn’t know if anyone here profiting knows the roads already have a lot of traffic or if they know about the girl that died in the crosswalk on Laurel before the gas station was built. She expressed she wants Oakley to prosper and for businesses to come and it would be nice for parents to meet up; i.e., a coffee house for parents. She shared she would also love a library.

Mayor Pope called for a brief recess at 8:17 p.m.

The City Council reconvened at 8:23 p.m.

Mayor Pope called for deliberation/discussion.

Councilmember Williams commented regarding the CUP, she thinks they have seen all of the reasons why it checks all of the boxes, but the one things she comes back to is the intended character of the General Plan and zoning code and she doesn’t see how 26 this fits. She expressed she knows they have been told about pending litigation from their attorney and the landowner, but she has a list of CUPs that were denied because it didn’t satisfy the Council beyond a reasonable doubt. She shared as recently as November 2021, the Napa City Council denied a CUP for a drive-through because idling cars would lead to increased GHGs. She mentioned they recently went through a General Plan update and she feels they should adhere to it. She shared that Walnut Creek also denied a drive-through at an intense location because they couldn’t in good conscious approve it; this also is an intense use. She mentioned she wishes the former Council would have said this is a sensitive zone because the landowners living next to the plaza have a property right too. She shared she can hear school bells on Kay where she resides all day long and she cannot imagine the decibels from the speakers will be less. She commented that this doesn’t fit with the general character of the General Plan.

She referenced Resolution 05-08 that highlights the plaza will be a pedestrian-friendly shopping center designed to be walkable and a neighborhood hub. She mentioned this is a great opportunity for McDonald’s to bring a charming feel, a walk-up restaurant will still provide the same school traffic they would get, but it is because of the drive-through component she thinks they wouldn’t want to do that, but that is what that center was designed for. She commented that nothing has been brought to her beyond a reasonable doubt that this fits into the intended character.

City Attorney Derek Cole commented that the legal standard of review, whether the Council approves or does not approve, is a substantial evidence standard of review. He mentioned if the Council approves the project and the opponent challenges, they would have to show the Council’s findings on disputed elements were not supported by substantial evidence. He mentioned conversely, if the Council denies the project and is challenged, they would have to show the reason for the Council’s denial did not have substantial evidence. He explained substantial evidence is defined by legal precedence as evidence that is reasonable, credible and of solid value; it is not 50%+1 or proof beyond a reasonable doubt. He mentioned there has to be some evidence to support the decision. He mentioned he wants to make sure the Council understands that if their decision is for the project, they have to find substantial evidence to support each of the each of the 5 elements and if against the project, they must find that one or more of those elements cannot be supported by substantial evidence.

Councilmember Fuller expressed tonight is what he envisions Oakley and he is touched that the community came together because of the safety of children . He shared he was on a school board and heard over and over again that the best people to advise about the community is the local community. He mentioned they have a responsibility to children. He shared he has 22 years in law enforcement and 22 years teaching mostly special education and the schools don’t get it; they don’t walk or cross in the crosswalk or encounter the cars that could knock them down; children are not safe in that area. He commented that 14 years ago it was said and he is saying the same now; coffee shop drive-throughs were discussed 14 years ago and two councilmembers said the drivethroughs were not safe, and now there are 30,000 more people. He mentioned the Supreme Court said the same thing; the best decision is made by the local community. 27 He expressed his decision needs to be based on is what is right, and in this case, it is a no vote.

Vice Mayor Meadows commented there are 5 reasons they can deny the CUP. He inquired which one they would be denying on.

Mayor Pope inquired if Vice Mayor Meadows is asking a rhetorical question.

Vice Mayor Meadows responded it is not 2 and he would question them.

Mayor Pope responded 3 and 4. He expressed he is troubled by it because it conflicts with values; no matter what the Council chooses, it violates values. He mentioned he respects the property right of property owners as long as it doesn’t interfere with their neighbors and their enjoyment of their property. He mentioned he sees the property owner here and the property owners adjacent to them and how this use would impact them. He shared he also values safety, children, families and schools, but considers if somebody in proximity of a school should have to suffer from decisions of those before them and if children should be in danger because of decisions before them. He commented he appreciates accommodations the applicant has made. He mentioned alignment of the que was brought up tonight and currently it will back onto Laurel and cause accidents there; he thinks there is a solution, but they are not there yet. He mentioned it conflicts with children; there is a risk for them to walk across drive-throughs and cutting through lots, the reason he voted against the Chevron, because the design would encourage kids to cut through and adults have to protect them. He suggested if the City Council approves, to have an additional condition of approval to restrict hours of operations of the drive-through during pick up and drop off times to eliminate the potential for conflict. He mentioned someone inquired about revenue from projects; every quarter staff produces a report which is available to the public. He mentioned it comes down to location; if this project were like the one on Main Street, no one spoke in opposition and even if further down on Laurel, he is not sure there would be the same numbers of opposition, but across from the elementary school calls for special consideration. He shared there is a Taco Bell that you can walk up to on a beach and there is no drive-through; location necessitates special consideration. He shared the Council requested an additional traffic report which says traffic already exceeds standard certain times of certain times of day which coincide with pick up and drop off times which further supports restrictions on drive-through times. He mentioned the City doesn’t own the land or control it so if the community wants to pool its resources and build something, please do, but someone else has done so and deserves to be heard.

He commented that the hours of operation of the project have not been discussed. He suggested if the City Council approves, it consider those conditions because of the close proximity to neighbors just over the fence and because of the elevation on this parcel, you can see over sound wall. He inquired when the property was zoned commercial.

Mr. McMurray responded it was before the City incorporated; it was neighborhood business and in the County it is retail business.
28 Mayor Pope inquired when the homes were built. Someone responded in 1986.

Mayor Pope commented that the homes were built in 1986 and the City incorporated in 1999. He expressed disappointment that no members of the school board were present.

He shared an analogy of tomato trucks on both sides of the freeway going in opposite directions, north and south, even though they both might have closer drop off locations if they switched routes. He explained it is a free market economy, they live in a free country, and they do not have central control.

Councilmember Williams commented since they heard from so many homeowners; there is a court case that provides the owner of real property may testify as to the value of their property even though they are not qualified as an expert which she thinks is important to goes back to when the residents purchased their homes and what the center was intended for. She mentioned she is sympathetic with the developer and provided an example of the Taco Bell Mayor Pope mentioned earlier; to fit in, it does not have a drive-through and it changed its menu and now they even serve alcohol. She encouraged McDonald’s that this is an opportunity to do something creative to fit in with the neighborhood and not just try to fit it in because that is not what the plaza is intended for and she considers the landowners that were there before the plaza purchase.

Councilmember Fuller shared he is thinking about where government fits in with business. He commented the capitalistic country balances itself on free enterprise but not allow people to be exploited or oppressed by business; they must balance government with community concerns properly addressed along with free enterprise. He shared he believes it is the Council’s responsibility to ensure the safety of the community at the local level and also allow free enterprise in the best interest of all in the community.

Vice Mayor Meadows commented he believes in free enterprise and property rights. He mentioned the property has been commercial as long as he can remember; it was commercial when the homes were approved. He also mentioned it has been known that Laurel was to be a major road for decades. He moved for approval of the CUP and design review, as conditioned.

Mayor Pope announced the motion died for lack of a second.

Mayor Pope mentioned the only way he may consider approval is if there are additional conditions of approval; i.e., at minimum, hours of operation for the drive-through and all business operations there for neighborhood peace and quiet. He commented he would like to see the alignment of the drive-through changed, but with the hours restricted, he could compromise on that.

Councilmember Williams requested clarification if Mayor Pope is proposing the drivethrough would be closed during certain times. 29 Mayor Pope commented that the drive-through would not be allowed to operate during student drop off and pick up times.

Councilmember Williams mentioned the drop off time is between 7:40 a.m. to 8:06 a.m.

Mayor Pope suggested the drive-through be closed 1/2 hour before and after.

Councilmember Williams commented that the pick-up times are staggered every day and is different on Wednesdays.

An audience member suggested they consider T-K and EDLC kids as well.

Mayor Pope commented he would also like to see a mandatory shut down time.

Mr. McMurray explained the Municipal Code already provides for reduction of decibels at 10 p.m.

Councilmember Fuller commented they have a motion with no second. He inquired where that leaves the Council with the CUP and any other item.

Mr. Cole explained the Council needs to see if another motion can be made and if no motion with a second, the Mayor can declare a deadlock, but they are not there yet. He mentioned moving approval as presented died so it is off the table. He advised one option would be to deny it outright and if so, staff needs to bring the item back as he would need to prepare findings to outline the reasoning and evidence to support their denial because the applicant would be entitled to it and a court would require the finding to be adopted should litigation follow. He mentioned if this is the direction, the Council would tentatively deny the project subject to the City Attorney to prepare findings for the Council’s consideration at a future meeting. He advised another option would be as Mayor Pope indicated, an alternative motion could be made to add conditions of approval if reasonably specific, the Council could approve the project as presented with additional conditions of approval; for example, it would spell out hours of operation for the drive-through. He mentioned if the Council did that, it would be approving everything else, the negative declaration and design review. He mentioned staff can do that with the Council’s direction.

Mayor Pope commented he is trying to figure out how to split the baby.

Mr. Cole mentioned they must have evidence what the hours will be so the Council has the ability to draft something if it is its’ will.

Mr. Strelo commented that right now, he does not have it but is taking notes.

Mr. Cole advised another option if the Council denies the project and they have to come back with findings or they could try to formulate something tonight by splitting the baby 30 or otherwise coming up with a solution that works and be done with it. He commented he doesn’t know what the applicant would do as the applicant would be put under the gun to try and figure it out now. He mentioned he knows it will be going to another meeting, but the Council may want to vet that through now and allow the applicant to help, if feasible, which he doesn’t know--do they block it off or put a rope across; maybe they can do that. He indicated it may be better to give staff time to work with the applicant if at least 3 want to do that.

Mr. McMurray responded that the applicant is here and can give the hours of operation.

Kevin McCauley responded that it would open at 5 a.m. or 6 a.m. and close at 10 p.m. or 11 p.m. He shared they are open to looking at a different drive-through stack if the Council provides that direction.

Mayor Pope commented he met with the property owner and the construction manager and he wants to respect property rights, the neighborhood and the school. He mentioned if they can come up with a solution to satisfy that, he would be happy to approve.

Kevin McCauley commented that they do a lot of drive-throughs and this is the best they have come up with to date and most efficient, but it is no problem to continue looking at it.

Mayor Pope commented unless there is any motion of consensus, they can give staff direction to work with the applicant.

It was moved by Councilmember Higgins and seconded by Councilmember Williams to deny the CUP.

Mr. Cole inquired so he is clear that the motion is to tentatively deny the project with direction for the City Attorney to bring back the resolution with findings to justify the denial. He mentioned the applicant is entitled to this which would be done at a future meeting.

Councilmember Higgins confirmed that is her motion.

Councilmember Williams confirmed she still seconds it.

Mayor Pope called for any further discussion.

Councilmember Fuller inquired if they are voting to deny the CUP.

Mr. Cole explained that is correct, but that they still have to submit findings and rule.

Councilmember Fuller requested clarification if he approves, it would deny the CUP. 31 Mayor Pope requested confirmation that a ‘yes’ vote would mean no to the CUP.

Mr. Cole confirmed that is correct. He shared he will be out of the office next week so if denied, it would come back on March 22.

Mr. McMurray suggested the Council pick a date certain so staff does not have to renotice.

Mr. Cole requested if it is the pleasure of the Council to deny it, that it be brought back on March 22 for the Council to consider the findings.

Mayor Pope requested the City Clerk call the vote and she did. The following vote was taken: AYES: Fuller, Higgins, Williams. NOES: Meadows, Pope. (3-2) Mayor Pope announced the motion passes 3-2 and confirmed staff has received sufficient direction.
5) REGULAR CALENDAR
6) REPORTS

6.1 CITY MANAGER
(a) City Manager
City Manager Joshua McMurray announced Friday, March 4, Friday Night Bites will be hosted at City Hall, there are 2 Strategic Plan meetings coming up to be held March 10 and 31 at 6:30 p.m.

Due to attendees clearing the room, Mayor Pope suggested they take a 30 second pause. He thanked everyone for attending and welcomed everyone to stay but to keep voices to a quiet tone to allow the remainder of the meeting to be conducted.

Mr. McMurray continued with his report. He repeated what he said previously for his report and added that the 2 Strategic Plan meetings will be held at the Oakley Recreation Center.

6.2 OAKLEY CITY COUNCIL/OAKLEY CITY COUNCIL ACTING AS THE

SUCCESSOR AGENCY TO THE OAKLEY REDEVELOPMENT AGENCY
(a) Reports from Council Liaisons to Regional Committees, Commissions and Boards AND Oakley City Council/Oakley City Council Acting as the Successor Agency to the Oakley Redevelopment Agency
Vice Mayor Meadows reported he attended MCE’s board meeting last week. He announced transportation meetings for February have been canceled. 32 Councilmember Fuller mentioned there is no shade at the dog park so if it something that can be considered he would appreciate staff looking into it.

Mayor Pope suggested staff check with former Mayor Alaura to see how fundraising for that is coming along and how the City can help move it along.

Councilmember Williams reported that at the school board meeting negotiations are coming along, the school board grant writer is moving to a County position and the replacement person just started, and they expect new masking guidelines for schools on February 28. She mentioned they have an employee assistance program coming out for staff spearheaded by the different unions and they held a hearing regarding the postCensus for redistricting and there were no comments so the map stands as proposed.

She mentioned she would like to have zoning brought back in the near future.

Mayor Pope inquired when staff will bring it back.

Mr. McMurray responded he hears the sense of urgency and staff is trying to prioritize it and will bring it back as soon as possible.

Mayor Pope reported the Habitat Conservancy meeting was canceled as there were no pressing issues on the agenda. He also reported the City Council had a ribbon cutting ceremony before this Council meeting to celebrate electric vehicle charging stations in Civic Center Plaza which were built in partnership with ChargePoint and with grant assistance from MCE, and there are plans to have 6 more stations across the street in the plaza. He mentioned to help promote the station, charging is free until April 30. He suggested cars don’t create a long que.
(b) Requests for Future Agendas
None.
7) WORK SESSION
None.
8) CLOSED SESSIONS
None.
9) ADJOURN
There being no further business, the meeting was adjourned at 9:09 p.m.

Respectively Submitted,
Libby Vreonis
City Clerk
33 Date: February 22, 2022
To: Mayor and Members of City Council
From: Derek P. Cole, City Attorney
Cc: Joshua McMurray, City Manager
Subject: Closed Session Report-Out Memo
FOR CONSIDERATION AT THE CITY COUNCIL MEETING OF MARCH 8, 2022 Background and Analysis
The City Council considered the following closed session item during its special meeting held February 22, 2022:

CONFERENCE WITH LEGAL COUNSEL-ANTICIPATED LITIGATION
Significant exposure to litigation pursuant to paragraph (2) of subdivision (d) of Government Code Section 54956.9. Two potential cases.

Direction was provided to staff. There was no reportable action.

Fiscal Impact
None.

Recommendation
Receive and file this report.

Attachments
None.

MEMORANDUM
Office of the City Attorney
34 STAFF REPORT
Approved and Forwarded to the City Council
DATE: March 8, 2022
TO: Joshua McMurray, City Manager
FROM: Kevin Rohani, P.E., Public Works Director/ City Engineer SUBJECT: Approving the Agreements with ET Oakley, LLC, a Delaware Limited Liability Company and NPIF IV Oakley Building II, LLC, a Missouri Limited Liability Company for “Stormwater Management Facility Operations and Maintenance Agreement and Right of Entry” for the Oakley Logistics Center Phase 1 Subdivision 9513 project located at 4000 Wilbur Avenue (APN 037-020-025; Building 1) and 4100 Wilbur Avenue (APN 037-020-026; Building 2) and authorizing the City Manager to execute the agreements
Background and Analysis
The installation of the Permanent Stormwater Pollution Prevention Measures (BMP’s) for the Oakley Logistics Center Phase 1 Subdivision 9513 project will be constructed with the improvements associated with the project. The City’s Stormwater Management and Discharge Control Ordinance requires proper operation and maintenance of the permanent BMP’s by the respective property owners. The “Stormwater Management Facility Operation and Maintenance Agreement and Right of Entry” memorializes the owner’s maintenance, operations and inspection obligation under the City’s Ordinance and the approved plans.

Under the Contra Costa Countywide National Pollutant Discharge Elimination System (NPDES) Municipal Stormwater Permit, projects “deemed complete” after February 15, 2005, are to comply with the provisions of the Permit. The City adopted an Ordinance, as required by the Permit, to enable this activity within the City of Oakley. A requirement of the permit is that each property implement stormwater treatment devices, fund the perpetual maintenance of those devices, and enter into an agreement with the City stating that the property owner will maintain the devices, grant a right of entry to City staff for inspections, and agree to pay the cost of City inspections.

Fiscal Impact
There is no fiscal impact associated with the agreement since all inspection, operations, and maintenance costs are the responsibility of the property owners. 35 Staff Recommendation
Staff recommends that the City Council adopt the resolution approving the “Stormwater Management Facility Operations and Maintenance Agreement and Right of Entry” for the Oakley Logistics Center Phase 1 Subdivision 9513 projects for Building 1 and Building 2 and authorize the City Manager to sign the agreements on behalf of the City.

Attachments
1) Resolution
2) Exhibit – Building 1 and Building 2 IMPs
3) “Stormwater Management Facility Operation and Maintenance Agreement and Right of Entry” for the Oakley Logistics Center Phase 1 Subdivision 9513 Building 1 project
4) “Stormwater Management Facility Operation and Maintenance Agreement and Right of Entry” for the Oakley Logistics Center Phase 1 Subdivision 9513 Building 2 project
36 Resolution No. __-22 Page 1
RESOLUTION NO. __-22

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF OAKLEY,

CALIFORNIA, APPROVING THE AGREEMENT WITH ET OAKLEY, LLC, A

DELAWARE LIMITED LIABILITY COMPANY AND NPIF IV OAKLEY BUILDING II, LLC, A MISSOURI LIMITED LIABILITY COMPANY FOR “STORMWATER

MANAGEMENT FACILITY OPERATION AND MAINTENANCE AGREEMENT AND RIGHT OF ENTRY” FOR THE SUBDIVISION 9513 OAKLEY LOGISTICS CENTER PROJECT LOCATED AT 4000 WILBUR AVENUE (APN 037-020-025; BUILDING 1) AND 4100 WILBUR AVENUE (APN 037-020-026; BUILDING 2) AND

AUTHORIZING THE CITY MANAGER TO EXECUTE THE AGREEMENTS
WHEREAS, the City of Oakley’s Stormwater Management and Discharge Control Ordinance requires proper operation and maintenance of the Permanent Stormwater Pollution Prevention Measures installed for the Subdivision 9513 Oakley Logistics Center project; and
WHEREAS, the “Stormwater Management Facility Operation and Maintenance Agreement and Right of Entry” memorializes the owner’s maintenance, operations, and inspection obligations under the City’s Ordinance and the approved plans; and
WHEREAS, the installation of the Permanent Stormwater Pollution Prevention Measures for the Subdivision 9513 Oakley Logistics Center project will be consistent with the approved improvements plans; and WHEREAS, ET Oakley, LLC, a Delaware Limited Liability Company, the current owner of Building 1 located at 4000 Wilbur Avenue, desires to execute the “STORMWATER MANAGEMENT FACILITY OPERATION AND MAINTENANCE AGREEMENT AND RIGHT OF ENTRY”; and
WHEREAS, NPIF IV Oakley Building II, LLC, a Missouri Limited Liability Company, the current owner of Building 2 located at 4100 Wilbur Avenue, desires to execute the “STORMWATER MANAGEMENT FACILITY OPERATION AND MAINTENANCE AGREEMENT AND RIGHT OF ENTRY”; and
NOW, THEREFORE, BE IT RESOLVED AND ORDERED, that the City Council of the City of Oakley does hereby approve the “STORMWATER

MANAGEMENT FACILITY OPERATION AND MAINTENANCE AGREEMENT AND RIGHT OF ENTRY” with ET Oakley, LLC for the Subdivision 9513 Oakley Logistics Center project for Building 1 and the “STORMWATER MANAGEMENT FACILITY OPERATION AND MAINTENANCE AGREEMENT AND RIGHT OF ENTRY” with NPIF IV Oakley Building II, LLC for Building 2 in the form attached hereto as Exhibit A and Exhibit B, respectively and authorizes the City Manager to execute the agreements.

PASSED AND ADOPTED by the City Council of the City of Oakley at a meeting held on the 8th of March 2022 by the following vote:
37 Resolution No. __-22 Page 2
AYES:

NOES:

ABSENT:

ABSTENTIONS:

APPROVED:

_______________________
ATTEST: Randy Pope, Mayor
______
Libby Vreonis, City Clerk Date
38 LAURITZEN
PG&E
CA-160
BLDG 2
BLDG 1
BLDG 4
BLDG 3
BLDG 5 WILBUR AVENUE LOGISTICS CENTER DRIVE

D STREET

PARCEL C

PARCEL D

PARCEL C

PARCEL A

PARCEL B

LOGISTICS CENTER DRIVE
BLDG 5 SATELLITE

PARKING

WILBUR AVENUE

BNSF RAILWAY BRIDGEHEAD ROAD
G:\1073-010\ACAD\EXHIBITS\XB-108B_IMP.DWG
BUILDING 1 IMPS

OAKLEY LOGISTICS CENTER

CITY OF OAKLEY CONTRA COSTA COUNTY CALIFORNIA
SCALE: 1" = 400' DATE: FEBRUARY 25, 2022
0' 400' 800' CIVIL ENGINEERS SURVEYORS PLANNERS

SAN RAMON
WWW.CBANDG.COM ROSEVILLE
(925) 866-0322
(916)788-4456
LEGEND:
39 LAURITZEN
PG&E
CA-160
BLDG 2
BLDG 1
BLDG 4
BLDG 3
BLDG 5 WILBUR AVENUE LOGISTICS CENTER DRIVE

D STREET

PARCEL C

PARCEL D

PARCEL C

PARCEL A

PARCEL B

LOGISTICS CENTER DRIVE
BLDG 5 SATELLITE

PARKING

WILBUR AVENUE

BNSF RAILWAY BRIDGEHEAD ROAD
G:\1073-010\ACAD\EXHIBITS\XB-108B_IMP.DWG
BUILDING 2 IMPS

OAKLEY LOGISTICS CENTER

CITY OF OAKLEY CONTRA COSTA COUNTY CALIFORNIA
SCALE: 1" = 400' DATE: FEBRUARY 25, 2022
0' 400' 800' CIVIL ENGINEERS SURVEYORS PLANNERS

SAN RAMON
WWW.CBANDG.COM ROSEVILLE
(925) 866-0322
(916)788-4456
LEGEND:
40 1
04/29/2021
Recording Requested By:

CITY OF OAKLEY
Return to: CITY OF OAKLEY
City Clerk
3231 Main Street
Oakley, CA 94561
______________________________________________________________________________

Document Title

CITY OF OAKLEY

COVENANT RUNNING WITH THE LAND,

STORMWATER MANAGEMENT FACILITY OPERATIONS

AND MAINTENANCE AGREEMENT, AND RIGHT OF ENTRY
PROJECT: SUBDIVISION 9513 OAKLEY LOGISTICS CENTER
4000 WILBUR AVENUE (BUILDING 1)
OWNER NAME: ET OAKLEY, LLC, A DELAWARE LIMITED LIABILITY

COMPANY
ASSESSOR'S PARCEL NUMBER: 037-020-025
41 2

COVENANT RUNNING WITH THE LAND,

STORMWATER MANAGEMENT FACILITIES

OPERATION AND MAINTENANCE AGREEMENT,

AND RIGHT OF ENTRY
This Covenant Running with the Land, Stormwater Management Facilities Operation and Maintenance Agreement and Right of Entry ("Agreement") is made and entered into this 8th day of March 2022, by and between ET Oakley LLC, A Delaware Limited Liability Company, (hereinafter referred to as "Property Owner") and The City of Oakley, a municipal corporation ("City").

The following terms used in this Agreement shall have the meanings specified below:

DEFINITIONS
Maintain: The term "Maintain" or "Maintained" shall mean taking all actions reasonably necessary to keep the Stormwater Facility in first class operation, condition and repair, which actions include but are not limited to regular inspections, painting, cleaning, maintenance, refinishing, repairing, replacing and reconstructing the Stormwater Facility, and in the case of landscaping, plant replacement, mulch replacement, irrigating, trimming, mowing, and fertilizing the landscaping. The term shall also include the routine maintenance, and the annual inspection and reporting described in the Stormwater Control Operation and Maintenance Plan, and the payment of any applicable City fees.

NPDES Permit: The term "NPDES Permit" shall mean the San Francisco Bay Regional Water Quality Control Board's National Pollutant Discharge Elimination System (NPDES) Permit No. CAS0029912 (issued to the City of Oakley) as amended, and as may be superseded by subsequent NPDES permits that are reissued from time to time.

Ordinance: The term "Ordinance" shall mean Chapter 11 of Title 6 of the Oakley Municipal Code (Stormwater Management and Discharge Control), as may be amended from time to time.

Property Owner: The term "Property Owner" and "Property Owners" shall mean ET Oakley, LLC, A Delaware Limited Liability Company and all heirs, successors, executors, administrators and assigns of interest in the Property, it being the intent of the parties hereto that the obligations undertaken in this Agreement, as provided in Civil Code section 1468, run with the Property described in Exhibit A and constitute a lien against the Property.

Property: The term "Property" shall mean that certain real property located at 4000 Wilbur Avenue, and more particularly described in Exhibit A which is attached hereto and hereby incorporated herein by reference.

Plan: The term "Plan" or "Operation and Maintenance Plan" means the City-approved Stormwater Control Operation and Maintenance Plan prepared by Carlson, Barbee & Gibson, Inc. and approved by the City Engineer in writing, which may be subsequently modified from time to time with City Engineer's written approval.
42 3
Stormwater Facility: The term "Stormwater Facility" means the permanent stormwater management facilities located and constructed on the Property.

RECITALS
This Agreement is made and entered into with reference to the following facts:

A. The Property Owner is the owner of the real property more particularly described on the attached Exhibit A.

B. The City is the owner of Bridgehead Road and its storm drains that are adjacent to the Property, and the City is required to ensure that stormwater run-off from the Property into its storm drains meets the requirements of its NPDES Permit.

C. To meet its obligations under its NPDES Permit the City has required the Property Owner to construct the Stormwater Facility on the Property.

D. To meet its obligations under its NPDES Permit the City has approved the Property Owner's Operation and Maintenance Plan for the Stormwater Facility.

E. To meet its obligations under its NPDES Permit the City’s Ordinance requires proper operation and maintenance in perpetuity of the Stormwater Facility constructed on the Property.

F. The Plan includes an annual inspection and reporting requirement for the Stormwater Facility constructed on the Property.

G. This Agreement memorializes the Property Owner's maintenance, operations, and inspection obligations under the City’s Ordinance, the City's NPDES Permit and the Plan.

AGREEMENT
NOW, THEREFORE, in consideration of the foregoing premises, the mutual covenants contained herein, and the following terms and conditions, the parties hereto agree as follows:

SECTION 1
Responsibility for Operation and Maintenance: No portion of the Stormwater Facility may be altered, in any way, by the Property Owner without the prior written consent of the City Engineer of the City of Oakley. The Property Owner shall Maintain the Stormwater Facility in first class operating condition, and in compliance with all applicable state, county and city laws and regulations. Applicable regulations include, but are not limited to, the City-approved Stormwater Control Operation and Maintenance Plan, and the provisions of the Ordinance, as they may be amended from time to time.

The Property Owner shall engage a landscape contractor or other licensed contractor to Maintain the Stormwater Facility. The City Engineer, in her or his sole absolute discretion, may approve an alternate method for the maintenance of the Stormwater Facility. The City Engineer, also in her or his sole 43 4
absolute discretion, may revoke the approval of a previously approved alternate method for the maintenance of the Stormwater Facility.

SECTION 2
Inspection by Property Owner: The Property Owner shall cause its contractor to conduct annual inspections during the month of September of each year. The annual inspection report shall include completion of the checklist described in the approved Operation and Maintenance Plan. The Property Owner or its contractor must submit the inspection report to the City Engineer within 30 days after the annual inspection. A Management and/or Inspection fee established in the City's standard fee schedule shall accompany the annual inspection report.

SECTION 3
Right of Entry and Stormwater Facility Inspection by the City: The Property Owner hereby grants permission to the City, its authorized agents and employees, and Ironhouse Sanitary District, the East Contra Costa Fire Protection District, County Environmental Health Department, the Contra Costa Mosquito and Vector Control District, and the Regional Water Quality Control Board to enter the portion of the Property where the Stormwater Facility is located, and to inspect the Stormwater Facility whenever any of the forgoing entities deems necessary to enforce provisions of the City's Ordinance.

These entities may enter the premises at any reasonable time to inspect the Stormwater Facility's maintenance and operation, to inspect and copy records related to compliance with stormwater regulations, and to collect samples and take measurements. Whenever possible, these entities will provide notice prior to entry.

SECTION 4
Failure to Perform Required Stormwater Facility Repairs or Maintenance by the Property Owner: If the Property Owner or its successors fails to Maintain the Stormwater Facility in good working order and in accordance with the approved Plan and the City’s Ordinance, the City, with prior notice, may enter the Property to return the Stormwater Facility to good working order. The City is under no obligation to Maintain or repair the Stormwater Facility, and this Agreement may not be construed to impose any such obligation on the City. If the City, under this section takes any action to return the Stormwater Facility to good working order, the Property Owner shall reimburse the City for all the costs incurred by the City, including administrative costs. The City will provide the Property Owner with an itemized invoice of the City’s costs and the Property Owner will have 30 days to pay the invoice. If the Property Owner fails to pay the invoice within 30 days, the City may secure a lien against the real property of the Property Owner in the amount of such costs. In addition, the City may make the cost of abatement of the nuisance caused by the failure to Maintain the Stormwater Facility a special assessment against the Property that may be collected at the same time and in the same manner as ordinary municipal taxes are collected as provided in Government Code section 38773.5. This Section 4 does not prohibit the City from pursuing other legal recourse against the Property Owner. 44 5
SECTION 5
Indemnity: The Property Owner agrees to defend, indemnify and holds harmless the City, its officials, employees and its authorized agents from any and all damages, accidents, casualties, occurrences, claims, penalties or fines which might arise or be asserted against the City and which are in any way connected with the construction, operation, presence, existence or maintenance of the Stormwater Facility by the Property Owner, or from any personal injury or property damage that may result from the City or other public entities entering the Property under Section 3 or 4.

SECTION 6
Successors and Assigns: The covenants of the Property Owner set forth in numbered Sections 1 through 5 above shall run with the land, and the burdens thereof shall be binding upon each and every part of the Property and upon the Property Owner, its successors and assigns in ownership (or any interest therein), for the benefit of Bridgehead Road and its storm drains and each and every part thereof and said covenants shall inure to the benefit of and be enforceable by the City, its successors and assigns in ownership of each and every part of the Street and storm drains.

SECTION 7
Severability: Invalidation of any one of the provisions of this Agreement shall in no way effect any other provisions and all other provisions shall remain in full force and effect.

Recommended for approval: City of Oakley:
____________________________________ ______________________________ City Engineer, Kevin Rohani City Manager, Joshua McMurray Reviewed by: Attest:
____________________________________ ______________________________ City Attorney, Derek Cole City Clerk, Libby Vreonis
Property Owner:

ET Oakley, LLC,
a Delaware limited liability company
By:

Name:

Title:
45 6
Attachments: Acknowledgements
Exhibit A
State of
County of
On_______________, 2022 before me, a Notary Public, personally appeared _______________________, the of ET Oakley, LLC, a Delaware limited liability company, who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity, and that by his/her signature on the instrument the person or the entity upon behalf of which the person acted, executed the instrument.

I certify under PENALTY OF PERJURY under the laws of
the State of California that the foregoing paragraph is true and correct.

Witness my hand and official seal.

Signature________________________
Signature of Notary Public
A Notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
46 7

EXHIBIT A
Legal description
LOT 1 AS SHOWN ON THE FILED MAP OF SUBDIVISION 9513, OAKLEY LOGISTICS CENTER, FILED MAY 28, 2020, BOOK 543 OF MAPS, PAGES(S) 4 THROUGH 10, CONTRA COSTA COUNTY RECORDS. 47 1
04/29/2021
Recording Requested By:

CITY OF OAKLEY
Return to: CITY OF OAKLEY
City Clerk
3231 Main Street
Oakley, CA 94561
______________________________________________________________________________

Document Title

CITY OF OAKLEY

COVENANT RUNNING WITH THE LAND,

STORMWATER MANAGEMENT FACILITY OPERATIONS

AND MAINTENANCE AGREEMENT, AND RIGHT OF ENTRY
PROJECT: SUBDIVISION 9513 OAKLEY LOGISTICS CENTER
4100 WILBUR AVENUE (BUILDING 2)
OWNER NAME: NPIF IV Oakley Building II, LLC, a Missouri limited liability company
ASSESSOR'S PARCEL NUMBER: 037-020-026
48 2

COVENANT RUNNING WITH THE LAND,

STORMWATER MANAGEMENT FACILITIES

OPERATION AND MAINTENANCE AGREEMENT,

AND RIGHT OF ENTRY
This Covenant Running with the Land, Stormwater Management Facilities Operation and Maintenance Agreement and Right of Entry ("Agreement") is made and entered into this 8th day of March 2022, by and between NPIF IV Oakley Building II, LLC, A Missouri Limited Liability Company, (hereinafter referred to as "Property Owner") and The City of Oakley, a municipal corporation ("City").

The following terms used in this Agreement shall have the meanings specified below:

Ordinance: The term "Ordinance" shall mean Chapter 11 of Title 6 of the Oakley Municipal Code (Stormwater Management and Discharge Control), as may be amended from time to time.

Property Owner: The term "Property Owner" and "Property Owners" shall mean NPIF IV Oakley Building II, LLC, Missouri Limited Liability Company and all heirs, successors, executors, administrators and assigns of interest in the Property, it being the intent of the parties hereto that the obligations undertaken in this Agreement, as provided in Civil Code section 1468, run with the Property described in Exhibit A and constitute a lien against the Property.

Property: The term "Property" shall mean that certain real property located at 4100 Wilbur Avenue, and more particularly described in Exhibit A which is attached hereto and hereby incorporated herein by reference.

Plan: The term "Plan" or "Operation and Maintenance Plan" means the City-approved Stormwater Control Operation and Maintenance Plan prepared by Carlson, Barbee & Gibson, Inc. and approved by the City Engineer in writing, which may be subsequently modified from time to time with City Engineer's written approval.
49 3
Stormwater Facility: The term "Stormwater Facility" means the permanent stormwater management facilities located and constructed on the Property.