Oakley City Council
October 24, 2023

AGENDA

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
Tuesday, October 24, 2023
6:30 PM
Oakley City Council Chambers located at 3231 Main Street, Oakley, California 94561.

Unless stated otherwise on the agenda, every item on the agenda is exempt from CEQA Guidelines Sections 15060(c), 15061(b)(3), 15273, 15378, 15301, 15323 and/or Public Resources Code Section 21065.

MISSION STATEMENT: The City of Oakley will create a resilient future that fosters and attracts a vibrant and evolving community that welcomes and values all people.

VISION STATEMENT: The City of Oakley celebrates our unique Delta lifestyle and small-town feel where we Live in a safe, dynamic community, Work together to build the future, and Play in our own backyard.

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.

The City of Oakley provides 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 the City's website, and by emailing [email protected].

If you have a physically challenging condition and require special accommodations, please call the City 1 Clerk’s office at (925) 625-7000.

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.

Information Regarding Public Comment
Members of the public may address the Council on items of interest that are within the City’s jurisdiction. In compliance with State law, the council may not take actionor have discussion on any item that is not specifically listed on the agenda. Public comment on items not listed on the agenda will be heard under the Public Comments section of the agenda. Public comments on items listed on the agenda will be heard as the Mayor calls the items. 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 public speaker card available in the lobby and submit it to the City Clerk seated in the Council Chamber prior to the agenda item being called. The Mayor will call you by name to the podium to hear your comment.

PUBLIC COMMENTS ARE LIMITED TO THREE (3) MINUTES. Online public comments are accepted until 5 p.m. the day of the meeting and can be submitted at
https://www.ci.oakley.ca.us/online-public-comment-card/.

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/Oakley Public Financing Authority

1.2 Pledge of Allegiance to the Flag (Layla Zaragoza, Summer Lake Elementary School Student)

1.3 Update from Scott Wannamaker, Assistant Fire Chief, Contra Costa County Fire Protection District

1.4 Presentation by Gary Parkhurst, Mount Diablo Interpretive Association, regarding the Mitchell Canyon Educational Center

2.PUBLIC COMMENTS
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.

3.CONSENT CALENDAR
2 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. The public may request to remove an item(s) to provide input by completing a public speaker card and submitting it to the City Clerk prior to the item(s) being called by the Mayor.

3.1 Approve Minutes from the Regular Joint City Council/City Council Acting as the Successor Agency to the Redevelopment Agency/Public Financing Authority Meeting Held October 10, 2023 (Libby Vreonis, City Clerk) Minutes 10-10-23

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

3.3 Approval of Consulting Services Agreement by TRB and Associates, Inc. for On-Call services related to Code Compliance Plan Review and Inspection Services (Joshua McMurray, City Manager)
Staff Report

1. Draft Resolution

2. Draft Agreement

4.PUBLIC HEARINGS

4.1 Amend and Restate Resolution Authorizing the City of Oakley to Join the California Statewide Communities Development Authority’s Infrastructure Program (SCIP) (Jeri Tejeda, Administrative Services Director) Suggested Action: Staff Recommendation: 1) Receive the Staff Report, 2) Receive Questions from the City Council, 3) Open the Public Hearing, 4) Receive Public Testimony, 5) Close the Public Hearing, 6) Deliberate, 7) Summarize the Deliberation 8) Adopt the proposed Resolution
Staff Report

1. Resolution

2. Exhibits A, B, C, D

4.2 Grand Cypress Preserve Development Agreements Master Amendment (DA 01-23) (Ken Strelo, Planning Manager)
Suggested Action: Staff Recommendation: 1) Receive the Staff Report, 2) Receive Questions from the City Council, 3) Open the Public Hearing, 4) Receive Comments from the Applicant, 5) Receive Public Testimony, 6) Close the Public Hearing, 7) Deliberate, 8) Summarize the Deliberation 9) Waive the First Reading and Introduce the Ordinance
3 CEQA Determination: Find that the project is within the scope of the East Cypress Corridor Specific Plan Revised Final Environmental Impact Report (SCH No. 2004092011) certified by the City Council through adoption of Resolution No. 46-09 on March 10, 2009
Staff Report

1. Vicinity Map

2. Notice of Public Hearing

3. Planning Commission Resolution No. 13-23

4. Grand Cypress Preserve Development Agreements Master Amendment

5. Proposed Ordinance

5.REGULAR CALENDAR

5.1 Adopt a Superseding Agreement regarding the reimbursement for and implementation of construction improvements related to the Grand Cypress Preserve project with ACD-TI Oakley, LLC (Joshua McMurray, City Manager) Suggested Action: CEQA Determination: Find that approval of the Agreement is not a project as it involves government funding activities per CEQA Guidelines (California Code of Regulations, Title 14) section 15378(b)(4), and all environmental impacts associated with the Project have been previously analyzed during the Project’s entitlement processes.

Staff Report
Resolution Approving Superseding TI Capital Reimbursement Agreement Superseding Agreement Regarding Reimbursement and Implementation

6.REPORTS

6.1 CITY MANAGER
(a) City Manager
(b) Business License Update
September 2023 New Business Licenses

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
(b) Requests for Future Agendas
4 7.WORK SESSION

8.CLOSED SESSIONS

8.1 CONFERENCE WITH LABOR NEGOTIATORS
Agency designated representatives: Mayor Aaron Meadows, Vice Mayor Anissa Williams, City Attorney Derek Cole
Unrepresented employee: City Manager Joshua McMurray

9.ADJOURN
5 Minutes of the 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 held October 10, 2023
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/Oakley Public Financing Authority
Mayor Aaron Meadows called the meeting to order at 6:30 p.m. in the Oakley City Council Chambers located at 3231 Main Street, Oakley, California.

Councilmembers Dr. George Fuller and Hugh Henderson were also in attendance. Vice Mayor Anissa Williams and Councilmember Shannon Shaw were attending a conference and joined the meeting remotely via teleconference through their location at the 11th Hour Business Center-Hyatt Regency Orlando, Convention Level-Tower 1, 9801 International Drive, Orlando, Florida 32819.

1.2 Pledge of Allegiance to the Flag
Dr. Fuller led the Pledge of Allegiance to the Flag.
2) PUBLIC COMMENTS
None.
3) CONSENT CALENDAR

3.1 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 September 26, 2023 (Libby Vreonis, City Clerk)

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

3.3 Award of Construction Contract to TNB Construction for the Main Street Rehabilitation Project at Contra Costa Canal Bridge - Capital Improvement 6 Program (CIP) Number 187 (Kevin Rohani, P.E., Public Works Director/City Engineer)

3.4 Fiscal Year 2023/24 First Quarter Report on the Capital Improvement Program (Kevin Rohani, P.E., Public Works Director/City Engineer) Dr. Fuller requested item 3.4 be pulled.

It was moved by Councilmember Henderson and seconded by Dr. Fuller to approve the remainder of the Consent Calendar. A roll call vote was taken.

Motion was unanimous and so ordered. (5-0)
Item 3.4
Dr. Fuller requested clarification for the record that the action the City Council is taking is to “accept the report”. Public Works Director/City Engineer Kevin Rohani confirmed it is.

It was moved by Dr. Fuller and seconded by Councilmember Henderson to accept the report. A roll call vote was taken. Motion was unanimous and so ordered. (5-0)
4) PUBLIC HEARINGS
None.
5) REGULAR CALENDAR

5.1 Interview Applicants and Adopt a Resolution Appointing Three Members of the Public to the City of Oakley Affordable Housing Ad-Hoc Advisory Committee (Danielle Navarro, Assistant City Manager)
Assistant City Manager Danielle Navarro presented the staff report.

Carmelia Johnson provided public comment. She shared she is a 3-year resident at The Oaks Apartments and the rent is increasing every year, but repairs are not being done and her complaints are never attended to. She mentioned rent went up again in October to $2,200/month, they are on SSI, and almost all their money goes to rent.

Mayor Meadows inquired how many bedrooms are in her unit. Ms. Johnson responded there are three.

Mayor Meadows interviewed Oaks Resident Applicants Barbara Bautista, Micheline Nicol, Doug Gamble and Jackie Rider. Applicants were asked how long they have been a resident of The Oaks, what issues/concerns they have as a resident of The Oaks, and what experience/expertise they would bring to the Advisory Committee, and they were provided an opportunity to share anything 7 that would help the Council understand why they would be a good fit for the Advisory Committee.

Mayor Meadows thanked everyone who interviewed and applied. He shared that he has been on the property and is aware of some of what is going on. Mayor Meadows mentioned all four applicants did a good job presenting. He recommended Barbara Bautista and Doug Gamble for the Advisory Committee.

It was moved by Dr. Fuller and seconded by Councilmember Henderson to appoint Barbara Bautista and Doug Gamble as the two Oaks Apartments resident members of the Affordable Housing Ad-Hoc Advisory Committee. A roll call vote was taken. AYES: Fuller, Henderson, Meadows, Shaw. NOES:

Williams. (4-1)
It was moved by Councilmember Henderson and seconded by Dr. Fuller to appoint Oke Johnson as the Oaks Apartments management team member of the Affordable Housing Ad-Hoc Advisory Committee. A roll call vote was taken.

Motion was unanimous and so ordered. (5-0)
City Attorney Derek Cole clarified that the two votes will be made part of a single resolution that will identify the resident appointees and management appointee to the Affordable Housing Ad-Hoc Advisory Committee.
6) REPORTS

6.1 CITY MANAGER
(a) City Manager
City Manager Joshua McMurray announced Oaktober Fest will be held Saturday, October 21, 1pm-4pm, at Civic Center Plaza. He also announced two new staff members, Troy Faulk, Recreation Manager, and La Sandra Sipp, Human Resources Manager.
(b) Business License Update
None.

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
Councilmember Henderson reported that he attended a Diablo Water District meeting and Friday Night Bites.
8 Dr. Fuller reported that he met with Contra Costa County Supervisor Diane Burgis on October 2 to discuss AB 1657, SB 555, the 55-acre park, the singletunnel conveyance project, the regional bond issue pending through BAHFA, and Jersey Island. He provided details on each.

Vice Mayor Williams reported she attended a Tri-Delta meeting on September 27 and provided details.

Mayor Meadows reported he attended the Mayors Conference Thursday evening of last week.
(b) Requests for Future Agendas
None.
7) WORK SESSIONS

7.1 Work Session to Discuss AB 1657 (Wicks), SB 555 (Wahab), the Association of Bay Area Governments (ABAG) and the Bay Area Housing Financing Authority (BAHFA) (Joshua McMurray, City Manager) City Manager Joshua McMurray presented the staff report.

Dr. Fuller commented that ABAG has been working on AB 1657 since at least 2022. He explained that it was a dream of Mayor Jesse Arreguin in Berkeley because they had a high amount of RHNA units to build and so he was thinking of a bond measure to get RHNA numbers reallocated and get financing to build out in open areas, but Councilmember Mendoza from Brentwood, himself, and Solano County had something to say as they are not in favor of it but overwhelmingly others said they had to take a look at it. He mentioned when he returned to the General Assembly in 2023, Arreguin proudly put it forward that ABAG had Assemblymember Buffy Wicks introduce AB 1657, then a $20 billion bond, now $10 billion, to build affordable housing. He mentioned that within the bill, Health and Safety Code Section 54056 says the legislature can act on and change anything associated with affordable housing with this bill and Townsend, the City’s analyst, said the same. He mentioned that was what motivated Arreguin in 2022 to get out from the RHNA numbers and if this passes, there will be a mechanism in place to do so. He explained that Section 8 came about around the time of Reagan and in result, large housing projects were to disappear, and Section 8 housing was to spread out lower income housing, but since affordable housing has not been built in areas with high RHNA numbers, they want to throw money at it. He commented that since the 1940s, large public housing units have not worked well and should have been eliminated under Section 8, but now they are proposing to throw money at it to build affordable housing in any way they can get it. He mentioned financing under AB 1657 will generate revenue outside the general fund to put in the general fund to pay bonds as they mature which means more taxes for $20 billion of bonds and it 9 punishes Oakley. He explained that Oakley has done what it was supposed to do with RHNA numbers that others deem incredible compared to other cities, and Oakley is not in a position to need money a whole lot to build more affordable housing because Oakley is handling it, but AB 1657 will take it away and punish Oakley. He mentioned he is certain RHNA numbers will come down as when he attended the 2023 General Assembly, no sooner than when Mayor Arreguin sat down, a woman stood up and said they have to pass this because it is the only way to reduce RHNA numbers. He mentioned in his assessment, the way the numbers are reduced are to get the super blue categories along the coast that have a lot of money to donate and get their people in the legislature, and all of a sudden, the RHNA numbers get reallocated in favor of other people when Oakley has done all of its work and then they start taking over local control. He shared that SB 555 establishes the concept of social housing which is different than affordable housing because the legislature says so; it is housing for everybody, and it is in place because there is a homeless problem. He mentioned every study he has read provides that there is no real understanding why homelessness exists. He mentioned the state in 3 years will take housing allocations, review them, and determine where and how housing is to be built, divide up all the land where and how it needs to go, and decide how to get money there and how it will be built. He mentioned that they can change anything under Section 54056 of AB 1657, and this is where he believes it is going to come. He mentioned Vienna, Austria has social housing and there is a highly taxed group; the rich live in nicer housing and pay higher rents, but 40% live in low-income subsidized housing made possible by the higher tax paid by the rich living in nice housing. He compared it to Oakley, if people want a nice, bigger home, it is a luxury, and they may pay a higher property tax for it. He mentioned AB 1657 states $10-$20 billion and the BAHFA regional vote proposed will provide another $20 billion for housing. He mentioned a regional vote will be taken in all 9 counties including SF, Marin, Alameda, San Mateo, and Santa Clara, and if there is a 2/3 vote, they can raise taxes in Contra Costa County even if Contra Costa County votes against it; Contra Costa County will carry a burden to facilitate them. He explained they are paying the same amount as Contra Costa County; however, property tax is highly regressive; the higher your income, property tax rises, but not at the same rate; it is more burdensome on the middle and lower class than higher class for property tax; each resident in each county will be assessed the same amount and he opposes it. He mentioned it will have a large negative impact on Oakley as Oakley has become an inclusive community and has met what it was supposed to meet. He commented that DeNova has come in with a builder’s remedy and has been putting in 20% affordable housing with marketable housing and nice parks, and now, the state is looking to get more money out of Oakley’s pockets which is inequitable, discriminatory, and prejudicial. He mentioned Berkeley does not like it and has lots of good ideas that are progressive for Berkeley and others but some not so good including not changing its name. He added that 10% of BIPOC people have left Berkeley in 10 years and from what Berkeley is doing, they don’t want the people back; they are not going to build housing; they are going to send it out here. He mentioned Chief Beard recently released an article that crime is climbing because criminals are not being held accountable and similarly, the 10 Mayor’s son Anthony expressed in front of the Council that communities are not being held accountable to their RHNA allocations. He mentioned they should be held accountable, the Council should oppose this, and they should find a way to get out of ABAG and establish its own regional area.

Vice Mayor Williams suggested this is one to watch. She mentioned there is no point in having a strong letter of opposition as there is no guarantee this will happen, and there is not enough evidence showing a shifting of RHNA numbers; everything is still separated out. She mentioned she is comfortable to take a stance that they don’t want anything to take away from local control.

Councilmember Shaw requested clarification if staff is looking for a letter of opposition or providing an update.

City Manager Joshua McMurray responded that staff was asked to bring forward a work session, these are the four detailed areas staff was asked to address, and they are looking for direction.

Councilmember Shaw commented that she appreciates the work of staff, she understands they don’t want a California Housing Authority as that will not be the way to benefit Oakley the most, but she doesn’t know what they need to do today while these things are being pushed back a little bit. She mentioned that she is willing to hear what the rest of the Council has to say, but right now it is a stalemate.

Councilmember Henderson commented that it is important that they continue to focus on local control and as it goes forward, Oakley needs to be at the table when County allocations are made and be involved as much as possible. He mentioned at the state level or county level, he wants to be able to decide as a city and not be told what to do.

Mayor Meadows agreed with lot of comments Dr. Fuller made and mentioned he is probably more concerned with SB 555 that did pass than AB 1657 that was suspended. He shared that he has issues with social housing. He provided an example of Richmond that had a Housing Authority until a couple of years ago; they couldn’t manage their own units which is not uncommon when government tries to manage housing. He mentioned that he shared some of the same concerns regarding ABAG which he does not believe has Oakley’s best interest at heart; he doesn’t think Oakley needs to leave ABAG, they need to be at the table, but he has had concerns with ABAG as well as with MTC for many years, even before sitting here. He expressed that with BAHFA, a $10-$20 billion bond measure for Bay Area housing is insane. He mentioned that other regional measures are crammed down on Oakley, its citizens pay for it, and he doesn’t see a benefit in it. He mentioned that MTC is looking at another $20 billion bond measure for transportation 2 years later, therefore, potentially $40 billion in bonds could be passed in the Bay Area in the next 3 years which is insane. He commented that the housing problem in California is the 125 people in Sacramento making laws that make no sense, slow the process, and make it 11 hard to build. He commented that housing has not been added in California in quite a few years which has been a problem. He shared that he believes in free markets; let them work.

Dr. Fuller commented that Vice Mayor Williams mentioned to wait, but SB 555 is now law, and it encourages the Housing Authority in 3 years to look at building on state surplus land which is on the Delta and other areas. He suggested they can always oppose all 3 initially and they need to go further than just saying they want to maintain local control; if they can change RHNA numbers, the Council can oppose it, and as it goes to the legislature, the Council can oppose AB 1657 as written, then if it comes back that it will be favorable and not hinder or burden Oakley, the Council can lift its opposition. He mentioned he believes the Council owes it to its residents; Oakley tax rates are already enormous at new developments like Emerson Ranch and other locations; they should do everything they can to protect them and not let residents suffer with increased taxes. He inquired why take a chance; if they oppose it and if it changes, the Council can change its position.

Vice Mayor Williams commented that she is listening to community needs and they cannot pat themselves on the back and say they have done a good job with affordable housing when 91% of Oakley’s housing is single-family and they don’t have products people need; she doesn’t feel comfortable saying they have done all they can to have given people a fair shot at housing. She mentioned she has been contacted by people working multiple jobs and living in their cars because they cannot afford housing in Oakley. She expressed that she thinks that BAHFA offers a different approach than what has been tried before because there is a housing shortage and what they have been doing is not working; legislation may be needed to have people do the right thing. She mentioned that cities not doing their fair share should be held accountable. She added that if they oppose it, they should be able to say they oppose it because of this. She mentioned what she has heard so far is that they want a way to not have affordable housing in Oakley. She mentioned that any affordable housing before them meets some resistance, but they need to provide housing to those in dire need of it and not close the door on it. She added that they need to look at affordable housing in a different way; it is not projects; people needing it are teachers, restaurant workers, firefighters etc. and they need to treat people with more dignity. She mentioned that she doesn’t want to write a letter in opposition without saying here is what we propose; they can’t just say nothing can be done; they can state they plan to oppose, but here are the changes they propose to not oppose it, and it must have an affordability piece.

Mayor Meadows disagreed on how Oakley has performed. He shared that he thinks Oakley has been doing a good job and has met its RHNA numbers better than just about any city in Contra Costa County and Oakley’s housing is more affordable than most other cities within the county. He expressed that housing isn’t the issue in Oakley; it is jobs, whereas west of Oakley in San Francisco, Oakland and Berkeley, they have jobs, but don’t provide housing, and he believes they want to push housing out and that is where the problem is. He 12 mentioned if they tie in housing money to housing and jobs then maybe that is way to go; it can be used for housing in areas that need it and it can be used to incentivize employment in Contra Costa County, but that is not what they’re talking about. He added that the problem with housing is that it has not been built because of CEQA and he has an issue with this. He provided an example of apartments that Lafayette residents don’t want built across from Acalanes High School by a BART station where they should go, but they would rather push them out here. He inquired why they would want to potentially get burdened with housing when they need jobs.

Dr. Fuller expressed that he is offended and wants to rise to a point of order as he has never heard anyone on the Council say that they don’t want affordable housing; he has continually said Oakley needs affordable housing in a humane manner, not socialized, in an inclusive area, so Vice Mayor William’s comment was a misstatement. He mentioned that they want affordable housing but will not be abused by an oppressive capitalist group on the west side that will force it down on Oakley; people that live there and need it should have a right to affordable housing; it is oppressive to them and oppressive to us. He added that since 2022, Mayor Arreguin for Berkeley and others have been expressing how to get out from under their RHNA numbers and it will destroy us; Arreguin needs to look for housing to be built in the Berkeley Hills or along San Pablo Boulevard where there is land or properties that can be reconverted. He mentioned Assemblymember Lori Wilson was amazed that Oakley has planned for 20% affordable housing with marketable rate housing and is making other arrangements for affordable housing, and they are not saying they are against affordable housing; they are saying they are for social equity and social inclusion.

He suggested Oakley oppose it and if they can come back and show that the sections where they can change laws and build social housing has changed, then maybe they can get behind it.

Councilmember Shaw inquired if the Council would support a letter indicating opposition unless they can somehow link the allocation of housing to match jobs.

She expressed that while she understands there is a need for affordable housing, she does not want other cities’ RHNA allocations pushed onto Oakley because Oakley has made steps to have affordable housing. She suggested they can state opposition and also state a solution they would be comfortable with.

Mayor Meadows suggested they monitor the three areas, SB 555, AB 1657, and BAHFA, to see what they’re doing moving forward. He mentioned he is aware of other elected officials that aren’t in favor of BAHFA or the MTC bond measure.

He suggested the East County cities could say they support BAHFA if money can be used for jobs rather than housing, otherwise it is opposed, but for now, he suggests they monitor them.

Councilmember Shaw and Vice Mayor Williams both indicated they are comfortable with monitoring the items.

Dr. Fuller suggested they set a timeline and shared that he is for opposing it. 13 Mayor Meadows mentioned it is being discussed now before it is introduced in the Assembly in February. He inquired if Townsend could monitor it.

Mr. McMurray mentioned Townsend or staff can monitor it.

Councilmember Henderson suggested at least quarterly updates, and if changes occur sooner than that, an update can be provided through the City Manager’s weekly report and bring it back as an agenda item for a workshop if there are big changes.

Dr. Fuller suggested staff reach out to Supervisor Burgis to find out the date in March that they are planning to divide up the money so Oakley is at the table.

Mayor Meadows commented that it would be March to get it on the ballot in November.
8) CLOSED SESSION

8.1 CONFERENCE WITH LABOR NEGOTIATORS
Agency designated representatives: Mayor Aaron Meadows, Vice Mayor Anissa Williams, City Attorney Derek Cole
Unrepresented employee: City Manager Joshua McMurray
Mayor Meadows announced the closed session item and mentioned the meeting would adjourn after the closed session item. He announced the next regular City Council meeting will be held October 24, 2023, beginning at 6:30 p.m. in the Oakley City Council Chambers.
9) ADJOURN
There being no further business, the meeting was adjourned at 8:55 p.m.

Respectively Submitted,
Libby Vreonis
City Clerk
14 MEMORANDUM
City of Oakley | 3231 Main Street, Oakley, CA 94561
O (925) 625-7000 | F (925) 625-9859 | www.CI.Oakley.CA.US Date: October 10, 2023
To: Mayor and City Councilmembers
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 October 24, 2023 Background and Analysis
The City Council considered the following closed session item during its regular meeting held October 10, 2023:

CONFERENCE WITH LABOR NEGOTIATORS
Agency designated representatives: Mayor Aaron Meadows, Vice Mayor Anissa Williams, City Attorney Derek Cole
Unrepresented employee: Joshua McMurray
Direction was provided to staff. There was no reportable action.

Fiscal Impact
None.

Recommendation
Receive and file this report.

Attachments
None
15 STAFF REPORT

City of Oakley | 3231 Main Street, Oakley, CA 94561
O (925) 625-7000 | F (925) 625-9859 | www.ci.oakley.ca.us DATE: October 24, 2023
TO: City Council
FROM: Joshua McMurray, City Manager
SUBJECT: Approval of Consulting Services Agreement by TRB and Associates, Inc. for On-Call services related to Code Compliance Plan Review and Inspection Services
Background and Analysis
The City of Oakley utilizes a wide range of consultants and contractors across all departments to augment City staff as needed to accommodate the workload activities. One of the areas that this approach is utilized is code compliance plan reviews and inspections for projects that the City issues building permits for. The volume of private development activity fluctuates with the overall economic climate of the region, the Community Development and Public Works Departments use staff augmentation as needed to process and manage the development project workloads. This provides the City the ability to be responsive to the needs of development community while being cost effective. This approach gives the organization flexibility and agility to adjust to the level of service needed by private developers that frequently change as the regional economic climate changes.

The Community Development Department is responsible for all planning activities and issuance of building permits related to private development projects, which includes the plan review and inspection of the new structures that are built as part of these projects. The construction of two (2) of the largest residential development projects in Oakley have commenced. These projects are: the Grand Cypress Preserve and Summer Lake North and are located at the far eastern end of East Cypress Road from Jersey Island Road to Bethel Island Road. These new subdivisions will collectively construct more than 4,000 new homes.

These consulting services allow us to ensure we have the right experts on the varying projects, with levels of complexity that are unique to such large master plan development projects.

These two (2) developments, along with other substantial development projects are far more than the current City staffing levels can accommodate and will require consulting services at times to perform plan reviews and inspections of these development projects which will span several years. These services help us to ensure that all permitted projects meet the requirements of the California Building Standard Code as well as other local and state requirements, all of which help to ensure public safety, energy efficiency and sustainability in the built environment.

Staff has relied on services from TRB and Associates, Inc. since 2014 for On-Call Services as they provide superior staff augmentation capabilities to municipalities for plan reviews and inspections; with the ability to provide expert level services regardless of the project size and scope. The economic climate of the SF Bay Area remains solid, and growth continues to be Approved and
Forwarded to the
City Council
16 STAFF REPORT
CITY HALL | 3231 Main Street, Oakley, CA 94561 2
O (925) 625-7000 | F (925) 625-9859 | www.CI.Oakley.CA.US steady in residential and commercial projects. All municipalities, consultants, and contractors are keeping very busy in addition to absorbing the high construction costs.

Consistency with the Oakley Strategic Plan 27+
This item is consistent with the Strategic Plan 27+ Community and Economic Growth, Community Health and Safety, and Sustainable Organization Goals.

Fiscal Impact
Approval of the resolution will authorize the City Manager to execute a professional services agreement with TRB and Associates, Inc. for a not-to-exceed amount of $200,000 per fiscal year, beginning July 1, 2023, through June 30, 2024. Development building permit fees will fund the services on an as needed basis. There will not be any City General Funds used in this contract.

Staff Recommendation
Staff recommends that the City Council adopt the resolution approving the Professional Services Agreement with TRB and Associates, Inc. for “On-Call” Plan Review and Inspection services and authorizing the City Manager to execute the agreement.

Attachments
Draft Resolution
Draft Agreement
17 RESOLUTION NO. XX-23

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

CALIFORNIA, APPROVING THE PROFESSIONAL SERVICES AGREEMENT WITH TRB AND ASSOCIATES, INC. AND AUTHORIZING THE CITY MANAGER

TO EXECUTE THE AGREEMENT FOR ON-CALL CODE-COMPLIANCE PLAN

REVIEW AND INSPECTION SERVICES
WHEREAS, City of Oakley uses various consultants and contractors on an as-need basis to assist City staff on processing and managing private development projects; and
WHEREAS, TRB and Associates, Inc. has been serving the City since 2014 after being selected as the best suited firm to provide code-compliance plan review and inspection services to the City; and
WHEREAS, the need for this type of code-compliance support service has remained steady due to the large number of development projects being approved and constructed; and
WHEREAS, the costs associated with the agreement will be funded by private development project permit fees and not the City’s General Fund; and NOW, THEREFORE, BE IT RESOLVED AND ORDERED, by the City Council of the City of Oakley that the Professional Services Agreement with TRB and Associates, Inc. is hereby approved, and the City Manager is authorized to execute the agreement beginning on July 1, 2023 through June 30, 2024 for an amount not-to-exceed $200,000.

PASSED, APPROVED AND ADOPTED by the City Council of the City of Oakley at a meeting held on this 24th day of October 2023 by the following vote:

AYES:

NOES:

ABSENT:

ABSTENTIONS:

APPROVED:

___________________
ATTEST: Aaron Meadows, Mayor
______ _____
Libby Vreonis, City Clerk Date
18 CONSULTING SERVICES AGREEMENT BETWEEN THE CITY
OF OAKLEY AND TRB AND ASSOCIATES, INC. FOR

CONSULTING SERVICES ASSOCIATED WITH CALIFORNIA

BUILDING STANDARDS CODE COMPLIANCE
THIS AGREEMENT for consulting services is entered into by and between the City of Oakley, a municipal corporation in the State of California (hereinafter referred to as “City”) and TRB and Associates, Inc., a California corporation (hereinafter referred to as “Consultant”), collectively sometimes referred to hereinafter as the “Parties”, as of July 1, 2023 (the “Effective Date”).

Section 1. SERVICES. Subject to the terms and conditions set forth in this Agreement, Consultant shall provide to City the services described in the Scope of Work or proposal letter attached hereto and incorporated herein as Exhibit A at the time and place and in the manner specified therein. In the event of a conflict in or inconsistency between the terms of this Agreement and Exhibit A, the Agreement shall prevail.

1.1 Term of Services. The term of this Agreement shall begin on the Effective Date and shall end on June 30, 2024, the date of completion specified in Exhibit A, and Consultant shall complete the work described in Exhibit A prior to that date, unless the term of the Agreement is otherwise terminated or extended, as provided for in Section 8. The time provided to Consultant to complete the services required by this Agreement shall not affect the City’s right to terminate the Agreement, as provided for in Section 8. Should this Agreement be amended to include additional tasks as contemplated in Section 1, the term of services shall be extended as mutually agreed upon by City and Consultant.

1.2 Standard of Performance. Consultant shall perform all services required pursuant to this Agreement in the manner and according to the standards observed by a competent practitioner of the profession in which Consultant is engaged in the geographical area in which Consultant practices its profession. Consultant shall prepare all work products required by this Agreement in a substantial, first-class manner and shall conform to the standards of quality normally observed by a person practicing in Consultant's profession.

1.3 Assignment of Personnel. Consultant shall assign only competent personnel to perform services pursuant to this Agreement. In the event that City, in its sole discretion, at any time during the term of this Agreement, desires the reassignment of any such persons, Consultant shall, immediately upon receiving notice from City of such desire of City, reassign such person or persons.

1.4 Time. Consultant shall devote such time to the performance of services pursuant to this Agreement as may be reasonably necessary to meet the standard of performance provided in Section 1.1 above and to satisfy Consultant’s obligations hereunder.

Section 2. COMPENSATION. City hereby agrees to pay Consultant a sum not to exceed ONE HUNDRED THOUSAND Dollars and ZERO Cents ($100,000), notwithstanding any contrary indications that may be contained in Consultant’s proposal, for services to be performed and reimbursable costs incurred 19 City of Oakley and TRB and Associates, Inc. –– Professional Services Agreement FY 2023/24

under this Agreement. In the event of a conflict between this Agreement and Consultant’s proposal, attached as Exhibit A, regarding the amount of compensation, the Agreement shall prevail. City shall pay Consultant for services rendered pursuant to this Agreement at the time and in the manner set forth herein. The payments specified below shall be the only payments from City to Consultant for services rendered pursuant to this Agreement. Consultant shall submit all invoices to City in the manner specified herein. Except as specifically authorized by City, Consultant shall not bill City for duplicate services performed by more than one person.

Consultant and City acknowledge and agree that compensation paid by City to Consultant under this Agreement is based upon Consultant’s estimated costs of providing the services required hereunder, including salaries and benefits of employees and subcontractors of Consultant. Consequently, the parties further agree that compensation hereunder is intended to include the costs of contributions to any pensions and/or annuities to which Consultant and its employees, agents, and subcontractors may be eligible. City therefore has no responsibility for such contributions beyond compensation required under this Agreement.

2.1 Invoices. Consultant shall submit invoices, not more often than once a month during the term of this Agreement, based on the cost for services performed and reimbursable costs incurred prior to the invoice date. Invoices shall contain the following information:
 The beginning and ending dates of the billing period;  The total number of hours of work performed under the Agreement by Consultant and each employee, agent, and subcontractor of Consultant performing services hereunder, as well as separate notice which shall include an estimate of the time necessary to complete the work described in Exhibit A. The Consultant’s billed hours shall not exceed 960 hours prior to July 1, 2024.
 At City’s option, for each work item in each task, a copy of the applicable time entries or time sheets shall be submitted showing the name of the person doing the work, the hours spent by each person, a brief description of the work, and each reimbursable expense;
 The Consultant’s signature.

2.2 Monthly Payment. City shall make monthly payments, based on invoices received, for services satisfactorily performed, and for authorized reimbursable costs incurred. City shall have 30 days from the receipt of an invoice that complies with all of the requirements above to pay Consultant.

2.3 Final Payment. City shall pay the last 10% of the total sum due pursuant to this Agreement within 60 days after completion of the services and submittal to City of a final invoice, if all services required have been satisfactorily performed.

2.4 Total Payment. City shall pay for the services to be rendered by Consultant pursuant to this Agreement. City shall not pay any additional sum for any expense or cost whatsoever incurred by Consultant in rendering services pursuant to this Agreement. City shall make no payment for any extra, further, or additional service pursuant to this Agreement. 20 City of Oakley and TRB and Associates, Inc. –– Professional Services Agreement FY 2023/24

In no event shall Consultant submit any invoice for an amount in excess of the maximum amount of compensation provided above either for a task or for the entire Agreement, unless the Agreement is modified prior to the submission of such an invoice by a properly executed change order or amendment approved by the City Manager, which shall not exceed the maximum amount allowed by the Oakley Municipal Code.

2.5 Hourly Fees. Fees for work performed by Consultant shall not exceed the amounts shown on the Compensation Schedule attached hereto and incorporated herein as Exhibit A.

2.6 Reimbursable Expenses. Reimbursable expenses are specified in Exhibit A, and expenses not listed in Exhibit A are not chargeable to the City.

2.7 Payment of Taxes. Consultant is solely responsible for the payment of employment taxes incurred under this Agreement and any similar federal or state taxes.

2.8 Payment upon Termination. In the event that the City or Consultant terminates this Agreement pursuant to Section 8 of this Agreement, the City shall compensate the Consultant for all outstanding costs and reimbursable expenses incurred for work satisfactorily completed as of the date of written notice of termination. Consultant shall maintain adequate logs and timesheets in order to verify costs incurred to that date.

2.9 Authorization to Perform Services. The Consultant is not authorized to perform any services or incur any costs whatsoever under the terms of this Agreement until receipt of authorization from the Contract Administrator.

Section 3. FACILITIES AND EQUIPMENT. Except as set forth herein, Consultant shall, at its sole cost and expense, provide all facilities and equipment that may be necessary to perform the services required by this Agreement. City shall make available to Consultant only the facilities and equipment listed in this section, and only under the terms and conditions set forth herein.

City shall furnish physical facilities such as desks, filing cabinets, and conference space, as may be reasonably necessary for Consultant’s use while consulting with City employees and reviewing records and the information in possession of the City. The location, quantity, and time of furnishing those facilities shall be in the sole discretion of City. In no event shall City be obligated to furnish any facility that may involve incurring any direct expense, including but not limited to computer, long-distance telephone or other communication charges, vehicles, and reproduction facilities.

Section 4. INSURANCE REQUIREMENTS. Before beginning any work under this Agreement, Consultant, at its own cost and expense, shall procure the types and amounts of insurance listed below and in Exhibit B against claims for injuries to persons or damages to property that may arise from or in connection with the performance of the work hereunder by the Consultant and its agents, representatives, employees, and subcontractors. Consistent with the following provisions, Consultant shall provide proof satisfactory to City of such insurance that meets the requirements of this section and under forms of insurance satisfactory 21 City of Oakley and TRB and Associates, Inc. –– Professional Services Agreement FY 2023/24

in all respects to the City, and that such insurance is in effect prior to commencing work under this Agreement.

Consultant shall maintain the insurance policies required by this section throughout the term of this Agreement. The cost of such insurance shall be included in the Consultant's bid. Consultant shall not allow any subcontractor to commence work on any subcontract until Consultant has obtained all insurance required herein for the subcontractor(s) and provided evidence thereof to City. Verification of the required insurance shall be submitted and made part of this Agreement prior to execution. Verification of the required insurance is attached hereto and incorporated herein as Exhibit C.

4.1 Variation. The City may approve a variation in the insurance requirements, upon a determination that the coverage, scope, limit, and form of such insurance is either not commercially available, or that the City’s interests are otherwise sufficiently protected.

4.2 Notice of Reduction in Coverage. In the event that any coverage required by this section is reduced, limited, or materially affected in any other manner, Consultant shall provide written notice to City at Consultant’s earliest possible opportunity and in no case later than five days after Consultant is notified of the change in coverage.

4.3 Remedies. In addition to any other remedies City may have if Consultant fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required, City may, at its sole option, exercise any of the following remedies, which are alternatives to other remedies City may have and are not the exclusive remedy for Consultant’s breach:
 Order Consultant to stop work under this Agreement or withhold any payment that becomes due to Consultant hereunder, or both stop work and withhold any payment, until Consultant demonstrates compliance with the requirements hereof; and/or  Terminate this Agreement.

Section 5. INDEMNIFICATION AND CONSULTANT’S RESPONSIBILITIES. Consultant shall to the fullest extent allowed by law, with respect to all Services performed in connection with this Agreement, defend with counsel acceptable to the City, and indemnify and hold the City and its officials, officers, employees, agents, and volunteers harmless from and against any and all losses that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant (“Claims”).Consultant will bear all loses, costs, damages, expense and liability of every kind, nature and description that arise out of, pertain to, or relate to such Claims, whether directly or indirectly (“Liability”). Such obligations to defend, hold harmless and indemnify the City shall not apply to the extent that such Liability is caused by the sole negligence, active negligence, or willful misconduct of the City or any third party.

With respect to third party claims against the Consultant, the Consultant waives any and all rights of any type of express or implied indemnity against the indemnitees.

However, notwithstanding the foregoing, in accordance with California Civil Code Section 1668, nothing in this Agreement shall be construed to exempt the City from its own fraud, willful injury to the person or property 22 City of Oakley and TRB and Associates, Inc. –– Professional Services Agreement FY 2023/24

of another, or violation of law. In addition, and notwithstanding the foregoing, to the extent this Agreement is a “construction contract” as defined by California Civil Code section 2783, as may be amended from time to time, such duties of Consultant to indemnify shall not apply when to do so would be prohibited by California Civil Code Section 2782.

Section 6. STATUS OF CONSULTANT.

6.1 Independent Contractor. At all times during the term of this Agreement, Consultant shall be an independent contractor and shall not be an employee of City. City shall have the right to control Consultant only insofar as the results of Consultant's services rendered pursuant to this Agreement and assignment of personnel pursuant to Subparagraph 1.3; however, otherwise City shall not have the right to control the means by which Consultant accomplishes services rendered pursuant to this Agreement. Notwithstanding any other City, state, or federal policy, rule, regulation, law, or ordinance to the contrary, Consultant and any of its employees, agents, and subcontractors providing services under this Agreement shall not qualify for or become entitled to, and hereby agree to waive any and all claims to, any compensation, benefit, or any incident of employment by City, including but not limited to eligibility to enroll in the California Public Employees Retirement System (PERS) as an employee of City and entitlement to any contribution to be paid by City for employer contributions and/or employee contributions for PERS benefits.

6.2 Consultant, Not Agent. Except as City may specify in writing, Consultant shall have no authority, express or implied, to act on behalf of City in any capacity whatsoever as an agent.

Consultant shall have no authority, express or implied, pursuant to this Agreement to bind City to any obligation whatsoever.

Section 7. LEGAL REQUIREMENTS.

7.1 Governing Law. The laws of the State of California shall govern this Agreement.

7.2 Compliance with Applicable Laws. Consultant and any subcontractors shall comply with all laws applicable to the performance of the work hereunder, including but not limited to, the California Building Code, the Americans with Disabilities Act, and any copyright, patent or trademark law. Consultant’s failure to comply with any law(s) or regulation(s) applicable to the performance of the work hereunder shall constitute a breach of contract.

7.3 Other Governmental Regulations. To the extent that this Agreement may be funded by fiscal assistance from another governmental entity, Consultant and any subcontractors shall comply with all applicable rules and regulations to which City is bound by the terms of such fiscal assistance program.

7.4 Licenses and Permits. Consultant represents and warrants to City that Consultant and its employees, agents, and any subcontractors have all licenses, permits, qualifications, and approvals of whatsoever nature that are legally required to practice their respective 23 City of Oakley and TRB and Associates, Inc. –– Professional Services Agreement FY 2023/24

professions. Consultant represents and warrants to City that Consultant and its employees, agents, any subcontractors shall, at their sole cost and expense, keep in effect at all times during the term of this Agreement any licenses, permits, and approvals that are legally required to practice their respective professions. In addition to the foregoing, Consultant and any subcontractors shall obtain and maintain during the term of this Agreement valid business licenses from City.

7.5 Nondiscrimination and Equal Opportunity. Consultant shall not discriminate, on the basis of a person’s race, religion, color, national origin, age, physical or mental handicap or disability, medical condition, marital status, sex, or sexual orientation, against any employee, applicant for employment, subcontractor, bidder for a subcontract, or participant in, recipient of, or applicant for any services or programs provided by Consultant under this Agreement.

Consultant shall comply with all applicable federal, state, and local laws, policies, rules, and requirements related to equal opportunity and nondiscrimination in employment, contracting, and the provision of any services that are the subject of this Agreement.

Consultant shall include the provisions of this Subsection in any subcontract approved by the Contract Administrator of this Agreement.

Section 8. TERMINATION AND MODIFICATION.

8.1 Termination. City may cancel this Agreement at any time and without cause upon written notification to Consultant.

Consultant may cancel this Agreement upon 30 days written notice to City and shall include in such notice the reasons for cancellation.

In the event of termination, Consultant shall be entitled to compensation for services performed to the effective date of termination; City, however, may condition payment of such compensation upon Consultant delivering to City any or all documents, photographs, computer software, video and audio tapes, and other materials provided to Consultant or prepared by or for Consultant or the City in connection with this Agreement.

8.2 Extension. City may, in its sole and exclusive discretion, extend the end date of this Agreement beyond that provided for in Subsection 1.1. This Agreement may be extended at the option of the City. Should City decide to exercise its option to extend this Agreement, City shall provide written notice to Consultant at least sixty (60) days prior to the end date of this Agreement. Any such extension shall require a written amendment to this Agreement, as provided for herein. Consultant understands and agrees that, if City grants such an extension, City shall have no obligation to provide Consultant with compensation beyond the maximum amount provided for in this Agreement, unless City agrees to do so by written amendment to this Agreement. Similarly, Consultant understands and agrees that, City shall have no obligation to reimburse Consultant for any otherwise reimbursable expenses 24 City of Oakley and TRB and Associates, Inc. –– Professional Services Agreement FY 2023/24

incurred during the extension period, unless City agrees to do so by written amendment to this Agreement.

8.3 Amendments. The parties may amend this Agreement only by a writing signed by all the parties.

8.4 Assignment and Subcontracting. City and Consultant recognize and agree that this Agreement contemplates personal performance by Consultant and is based upon a determination of Consultant’s unique personal competence, experience, and specialized personal knowledge. Moreover, a substantial inducement to City for entering into this Agreement was and is the professional reputation and competence of Consultant.

Consultant may not assign this Agreement or any interest therein without the prior written approval of the Contract Administrator. Consultant shall not subcontract any portion of the performance contemplated and provided for herein, other than to the subcontractors noted in the proposal, without prior written approval of the Contract Administrator.

8.5 Survival. All obligations arising prior to the termination of this Agreement and all provisions of this Agreement allocating liability between City and Consultant shall survive the termination of this Agreement.

8.6 Options upon Breach by Consultant. If Consultant materially breaches any of the terms of this Agreement, City’s remedies shall include, but not be limited to the following:

8.6.1 Immediately terminate the Agreement;

8.6.2 Retain the plans, specifications, drawings, reports, design documents, and any other work product prepared by Consultant pursuant to this Agreement;

8.6.3 Retain a different consultant to complete the work described in Exhibit A not finished by Consultant; or

8.6.4 Charge Consultant the difference between the cost to complete the work described in Exhibit A that is unfinished at the time of breach and the amount that City would have paid Consultant pursuant to Section 2 of this Agreement if Consultant had completed the work.

Section 9. KEEPING AND STATUS OF RECORDS.

9.1 Records Created as Part of Consultant’s Performance. All reports, data, maps, models, charts, studies, surveys, photographs, memoranda, plans, studies, specifications, records, files, or any other documents or materials, in electronic or any other form, that Consultant prepares or obtains pursuant to this Agreement and that relate to the matters covered hereunder shall be the property of the City. Consultant hereby agrees to deliver those documents to the City upon termination of the Agreement. It is understood and agreed that 25 City of Oakley and TRB and Associates, Inc. –– Professional Services Agreement FY 2023/24

the documents and other materials, including but not limited to those described above, prepared pursuant to this Agreement are prepared specifically for the City and are not necessarily suitable for any future or other use. City and Consultant agree that, until final approval by City, all data, plans, specifications, reports and other documents are confidential and will not be released to third parties without prior written consent of both parties.

9.2 Consultant’s Books and Records. Consultant shall maintain any and all ledgers, books of account, invoices, vouchers, canceled checks, and other records or documents evidencing or relating to charges for services or expenditures and disbursements charged to the City under this Agreement for a minimum of three (3) years, or for any longer period required by law, from the date of final payment to the Consultant to this Agreement.

9.3 Inspection and Audit of Records. Any records or documents that Section 9.2 of this Agreement requires Consultant to maintain shall be made available for inspection, audit, and/or copying at any time during regular business hours, upon oral or written request of the City. Under California Government Code Section 8546.7, if the amount of public funds expended under this Agreement exceeds TEN THOUSAND DOLLARS ($10,000.00), the Agreement shall be subject to the examination and audit of the State Auditor, at the request of City or as part of any audit of the City, for a period of three (3) years after final payment under the Agreement.

Section 10 MISCELLANEOUS PROVISIONS.

10.1 Attorneys’ Fees. If a party to this Agreement brings any action, including an action for declaratory relief, to enforce or interpret the provision of this Agreement, the prevailing party shall be entitled to reasonable attorneys’ fees in addition to any other relief to which that party may be entitled. The court may set such fees in the same action or in a separate action brought for that purpose.

10.2 Venue. In the event that either party brings any action against the other under this Agreement, the parties agree that trial of such action shall be vested exclusively in the state courts of California in the County of Contra Costa or in the United States District Court for the Northern District of California.

10.3 Severability. If a court of competent jurisdiction finds or rules that any provision of this Agreement is invalid, void, or unenforceable, the provisions of this Agreement not so adjudged shall remain in full force and effect. The invalidity in whole or in part of any provision of this Agreement shall not void or affect the validity of any other provision of this Agreement.

10.4 No Implied Waiver of Breach. The waiver of any breach of a specific provision of this Agreement does not constitute a waiver of any other breach of that term or any other term of this Agreement.
26 City of Oakley and TRB and Associates, Inc. –– Professional Services Agreement FY 2023/24

10.5 Successors and Assigns. The provisions of this Agreement shall inure to the benefit of and shall apply to and bind the successors and assigns of the parties.

10.6 Use of Recycled Products. Consultant shall prepare and submit all reports, written studies and other printed material on recycled paper to the extent it is available at equal or less cost than virgin paper.

10.7 Conflict of Interest. Consultant may serve other clients, but none whose activities within the corporate limits of City or whose business, regardless of location, would place Consultant in a “conflict of interest,” as that term is defined in the Political Reform Act, codified at California Government Code Section 81000 et seq.

Consultant shall not employ any City official in the work performed pursuant to this Agreement. No officer or employee of City shall have any financial interest in this Agreement that would violate California Government Code Sections 1090 et seq.

Consultant hereby warrants that it is not now, nor has it been in the previous twelve (12) months, an employee, agent, appointee, or official of the City. If Consultant was an employee, agent, appointee, or official of the City in the previous twelve months, Consultant warrants that it did not participate in any manner in the forming of this Agreement.

Consultant understands that, if this Agreement is made in violation of Government Code §1090 et.seq., the entire Agreement is void and Consultant will not be entitled to any compensation for services performed pursuant to this Agreement, including reimbursement of expenses, and Consultant will be required to reimburse the City for any sums paid to the Consultant. Consultant understands that, in addition to the foregoing, it may be subject to criminal prosecution for a violation of Government Code § 1090 and, if applicable, will be disqualified from holding public office in the State of California.

10.8 Solicitation. Consultant agrees not to solicit business at any meeting, focus group, or interview related to this Agreement, either orally or through any written materials.

10.9 Contract Administration. This Agreement shall be administered by Brent Smith, Community Development Director ("Contract Administrator"). All correspondence shall be directed to or through the Contract Administrator or his or her designee.

10.10 Notices.

Any written notice to Consultant shall be sent to:

TRB and Associates, Inc.

Attn: Todd Bailey
3180 Crow Canyon Place
Suite 216
San Ramon, CA 94583
27 City of Oakley and TRB and Associates, Inc. –– Professional Services Agreement FY 2023/24

Any written notice to City shall be sent to:

City of Oakley
Attn: Brent Smith, Community Development Director
3231 Main Street
Oakley, CA 94561

10.11 Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be an original and all of which together shall constitute one agreement.

10.12 Authorized Signature. Each person and party signing this Agreement warrants that he/she has the authority to execute this Agreement on behalf of the principal and that the party will be bound by such signature.

The parties have executed this Agreement as of the Effective Date.

CITY CONSULTANT
City of Oakley, a municipal corporation TRB and Associates, Inc., a California corporation
in the State of California
By: ____________________________ By: _____________________________ Joshua McMurray, City Manager Todd Bailey, Owner

Attest:
_______________________________
Libby Vreonis, City Clerk
Approved as to Form:
________________________________
Derek P. Cole, City Attorney
28 City of Oakley and TRB and Associates, Inc. –– Professional Services Agreement FY 2023/24

EXHIBIT A

SCOPE OF SERVICES AND COMPENSATION SCHEDULE
(TRB to Provide Scope of Services & Bill Rates)
29 30
31 32
33 City of Oakley and TRB and Associates, Inc. –– Professional Services Agreement FY 2023/24

EXHIBIT B

INSURANCE REQUIREMENTS
PROFESSIONAL SERVICE CONTRACTS:

Consultant shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by the Consultant, its agents, representatives, or employees.

MINIMUM SCOPE AND LIMIT OF INSURANCE
Coverage shall be at least as broad as:

1. Commercial General Liability (CGL): Insurance Services Offer Form CG 00 01 covering CGL on an “occurrence” basis, including products and completed operations, property damage, bodily injury and personal & advertising injury with limits no less than $1,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit.

2. Automobile Liability: Insurance Services Office Form Number CA 0001 covering, Code 1 (any auto), or if Consultant has no owned autos, Code 8 (hired) and 9 (non-owned), with limit no less than $1,000,000 per accident for bodily injury and property damage.

3. Workers’ Compensation insurance as required by the State of California, with Statutory Limits, and Employer’s Liability Insurance with limit of no less than $1,000,000 per accident for bodily injury or disease.
(not required if consultant provides written verification it has no employees)

4. Professional Liability (Errors and Omissions) Insurance appropriates to the Consultant’s profession, with limit no less than $1,000,000 per occurrence or claim, $2,000,000 aggregate.

If the Consultant maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for the higher limits maintained by the Contractor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City.

Other Insurance Provisions
The insurance policies are to contain, or be endorsed to contain, the following provisions:

Additional Insured Status
The City, its officers, officials, employees, and volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of the Consultant including materials, parts or equipment furnished in connection with such work or operations.

General liability coverage should be provided in the form of an endorsement to the Consultant’s insurance (at least as broad as ISO Form CG 20 10 11 85 or both CG 20 10 and CG 20 37 forms if later revisions used). 34 City of Oakley and TRB and Associates, Inc. –– Professional Services Agreement FY 2023/24 Primary Coverage
For any claims related to this contract, the Consultant’s insurance coverage shall be primary insurance as respects the City, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, or volunteers shall be excess of the Consultant’s insurance and shall not contribute with it.

Notice of Cancellation
Each insurance policy required above shall state that coverage shall not be canceled, except with notice to the City.

Waiver of Subrogation
Consultant hereby grants to City a waiver of any right to subrogation which Consultant or any insurer of said Consultant may acquire against the City by virtue of the payment of any loss under such insurance.

Consultant agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer.

Deductibles and Self-Insured Retentions
Any deductibles or self-insured retentions must be declared to and approved by the City. The City may require the Consultant to provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention.

Acceptability of Insurers
Insurance is to be placed with insurers with a current A.M. Best’s rating of no less than A:VII, unless otherwise acceptable to the City.

Claims Made Policies
If any of the required policies provide coverage on a claims-made basis:

1. The Retroactive Date must be shown and must be before the date of the contract or the beginning of contract work.

2. Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the contract of work.

3. If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a Retroactive Date prior to the contract effective date, the Consultant must purchase “extended reporting” coverage for a minimum of five (5) years after completion of contract work.

Verification of Coverage
Consultant shall furnish the City with original certificates and amendatory endorsements or copies of the applicable policy language effecting coverage required by this clause. All certificates and endorsements are to be received and approved by the City before work commences. However, failure to obtain the required documents prior to the work beginning shall not waive the Consultant’s obligation to provide them. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time. 35 City of Oakley and TRB and Associates, Inc. –– Professional Services Agreement FY 2023/24

Subcontractors
Consultant shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and Contractor shall ensure that City is an additional insured on insurance required from subcontractors.

Special Risks or Circumstances
City reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances. 36 City of Oakley and TRB and Associates, Inc. –– Professional Services Agreement FY 2023/24

EXHIBIT C

VERIFICATION OF REQUIRED INSURANCE
37 STAFF REPORT

City of Oakley | 3231 Main Street, Oakley, CA 94561
O (925) 625-7000 | F (925) 625-9859 | www.ci.oakley.ca.us DATE: October 10, 2023
TO: Joshua McMurray, City Manager
FROM: Jeri Tejeda, Administrative Services Director
SUBJECT: Amend and Restate Resolution Authorizing the City of Oakley to Join the California Statewide Communities Development Authority’s Infrastructure Program (SCIP)
Background and Analysis
The California Statewide Communities Development Authority (CSCDA) is a joint power authority. The member agencies of CSCDA include approximately 356 cities and all 58 counties throughout California including the City of Oakley.

The CSCDA in 2002 instituted the Statewide Community Infrastructure Program (SCIP) to allow owners of properties in participating cities to finance the development impact fees that would be payable by property owners upon receiving the development entitlements. SCIP was expanded to include financing of public capital improvements directly in addition to just fees and has now been further expanded to include Community Facilities Districts (“CFDs”), as provided for in the proposed Amended and Restated Resolution. Since its inception SCIP has issued over $1 billion in land secured special assessment and CFD bonds for development projects in California.

Since joining SCIP in 2010, the City of Oakley has participated in 7 SCIP pooled revenue bond financings, totaling approximately $41.49 million for 7 projects, including, most recently, funding approximately $2.6 million in storm drain, street, and streetlight improvements for the Pheasant Meadows Subdivision Project in the SCIP 2022C series.

This report is before the City Council to consider modifications to its original SCIP Resolution (No. 91-10, adopted on August 10, 2010) which will allow for the financing of fees and facilities through the formation of CFD’s in addition to the current assessment district program. By adding CFD’s, developers can finance a broader range of City fees such as the police, fire, library, general city fees and the housing inlieu fee. It will also allow the developer more flexibility in adjusting tax rates by specific product type, assist in forming separate improvement areas when projects need to be phased, and provide for more facilities to be financed similar in type to the fees.

If a property owner chooses to participate, and the City approves the application, the selected public capital improvements, facilities and/or development impact fees owed to the City will be financed by the issuance of tax-exempt bonds by CSCDA.

Approved and
Forwarded to the
City Council
38 STAFF REPORT
CITY HALL | 3231 Main Street, Oakley, CA 94561 2
O (925) 625-7000 | F (925) 625-9859 | www.CI.Oakley.CA.US CSCDA will form the district and impose an assessment or special tax, as applicable, on the owner’s property to repay the portion of the bonds issued to finance the fees paid with respect to the property (no one developer within the SCIP pool is responsible for the payment related to any other project). With respect to impact fees, the property owner will either pay the impact fees at the time of permit issuance and will be reimbursed from the SCIP bond proceeds when the SCIP bonds are issued, or the fees will be funded directly from the proceeds of the SCIP bonds. In both cases, the fees are subject to requisition by the City at any time to make authorized fee expenditures, and the City is never at risk for payment of its fees.

If improvements or facilities are contemplated, the proposed Amended and Restated Resolution includes a form of acquisition agreement, which outlines how a developer will be reimbursed for improvements as they are certified complete by the City.

The benefits to the property owner include:
 Only property owners who choose to participate in the program will have assessments or special taxes imposed on their property.  Instead of paying cash for public capital improvements and/or development impact fees, the property owner receives low-cost, long-term tax-exempt financing of those fees, freeing up capital for other purposes.  The property owner can choose to pay off the assessments or special taxes at any time.
 For home buyers, paying for the costs of public infrastructure through an assessment or special tax is superior to having those costs "rolled" into the cost of the home. Although the tax bill is higher, the amount of the mortgage is smaller, making it easier to qualify. Moreover, because the assessment/special tax financing is at tax-exempt rates, it typically comes at lower cost than mortgage rates.
 Owners of smaller projects, both residential and commercial, can have access to tax-exempt financing of infrastructure. Before the inception of SCIP, only projects large enough to justify the formation of an assessment or community facilities district had access to tax-exempt financing. SCIP can finance projects as low as $500,000, which would not be economical on a stand-alone basis.

The benefits to the City include:
39 STAFF REPORT
CITY HALL | 3231 Main Street, Oakley, CA 94561 3
O (925) 625-7000 | F (925) 625-9859 | www.CI.Oakley.CA.US  As in conventional assessment district and CFD financing, the City is not liable to repay the bonds issued by CSCDA or the assessments or special taxes, as applicable, imposed on the participating properties.
 CSCDA handles all district formation, district administration, bond issuance and bond administration functions. A participating city, county or special district can provide tax-exempt financing to property owners through SCIP while committing virtually no staff time to administer the program.
 Providing tax-exempt financing helps participating cities and counties cushion the impact of rising public capital improvements costs and development impact fees on new development. Many developers rely on assessment district or CFD financing through SCIP in making the decision to purchase land thereby improving a City’s competitive advantage in attracting new development.  The availability of financing will encourage developers to pull permits and pay fees in larger blocks, giving the participating city, county or special district immediate access to revenues for public infrastructure, rather than receiving a trickle of revenues stretched out over time. As part of the entitlement negotiation process, the possibility of tax-exempt financing of fees can be used to encourage a developer to pay fees up front.
 In some cases, the assessments or special taxes on successful projects can be refinanced through refunding bonds. Savings achieved through refinancing may be directed back to the participating city, county or special district for use on public infrastructure, or lower property taxes subject to applicable federal tax limitations.

The proposed Amended and Restated Resolution authorizes CSCDA to accept applications from owners of property within City’s planning jurisdiction to apply for taxexempt financing of public capital improvements and development impact fees through SCIP. It also authorizes CSCDA to form assessment districts and community facilities districts within City’s boundaries, conduct assessment and special tax proceedings and levy assessments and special taxes against the property of participating owners.

The authorization of CSCDA to form assessment districts within the City’s boundaries, conduct assessment proceedings, and levy assessments against the property of participating owners previously approved by this City Council would remain in effect.

It approves the form of an acquisition agreement, attached to the Amended and Restated Resolution as Exhibit B, to be entered into between the City and the participating property owner/developer, if applicable, to provide the terms and conditions under which financing for public capital improvements will be provided and to establish the procedure for disbursement of bond proceeds to pay for completed facilities. It also authorizes miscellaneous related actions and makes certain findings and determinations required by law.
40 STAFF REPORT
CITY HALL | 3231 Main Street, Oakley, CA 94561 4
O (925) 625-7000 | F (925) 625-9859 | www.CI.Oakley.CA.US Consistency with the Oakley Strategic Plan 27+
This item is consistent with the Strategic Plan 27+ Finance and Fiscal responsibility goals.

Fiscal Impact
There is no fiscal impact on the City budget as a result of this action. Making the SCIP program available to developers will provide additional lower cost financing mechanism to fund private development infrastructure improvements.

Staff Recommendation
Staff recommends the City Council adopt the Amended and Restated Resolution after the conclusion of the public hearing to join SCIP for community facilities districts and become a participating member agency in this program. The Amended and Restated Resolution requires only a simple majority vote. If the Amended and Restated Resolution is approved, the City Clerk should forward a certified copy to SCIP, c/o Tricia Aguirre, Orrick, Herrington & Sutcliffe LLP, 400 Capitol Mall, Suite 3000, Sacramento, CA 95814.

Attachments

1. Resolution

2. Exhibit A,B,C,D
41 RESOLUTION NO.___-23

AMENDED AND RESTATED RESOLUTION OF THE CITY COUNCIL OF THE

CITY OF OAKLEY AUTHORIZING THE CITY TO JOIN THE STATEWIDE COMMUNITY INFRASTRUCTURE PROGRAM; AUTHORIZING THE

CALIFORNIA STATEWIDE COMMUNITIES DEVELOPMENT AUTHORITY TO

ACCEPT APPLICATIONS FROM PROPERTY OWNERS, CONDUCT SPECIAL

ASSESSMENT PROCEEDINGS AND LEVY ASSESSMENTS AND SPECIAL

TAXES AND TO FORM ASSESSMENT DISTRICTS AND COMMUNITY
FACILITIES DISTRICTS WITHIN THE TERRITORY OF THE CITY OF OAKLEY;

EMBODYING A JOINT COMMUNITY FACILITIES AGREEMENT SETTING

FORTH THE TERMS AND CONDITIONS OF COMMUNITY FACILITIES
DISTRICT FINANCINGS; APPROVING FORM OF ACQUISITION AGREEMENT FOR USE WHEN APPLICABLE; AND AUTHORIZING RELATED ACTIONS WHEREAS, the California Statewide Communities Development Authority (the “Authority”) is a joint exercise of powers authority, lawfully formed and operating within the State pursuant to an agreement (the “Joint Powers Agreement”) entered into as of June 1, 1988 under the authority of Title 1, Division 7, Chapter 5 (commencing with Section 6500) of the California Government Code (the “JPA Law”), the members of which include numerous cities, counties and local agencies in the State of California, including the City of Oakley (the “City”); and WHEREAS, the Joint Powers Agreement authorizes the Authority to undertake financing programs under any applicable provisions of State law to promote economic development, the stimulation of economic activity, and the increase of the tax base within the jurisdictional boundaries of its members (such members, the “Program Participants”); and
WHEREAS, as one of the Programs under the Joint Powers Agreement, the Authority has established the Statewide Community Infrastructure Program (“SCIP”) to allow the financing of certain public capital improvements to be constructed by or on behalf of property owners for acquisition by the City or another public agency (the “Improvements”) and improvements eligible for funding from certain development impact fees (the “Fees”) levied in accordance with the Mitigation Fee Act (California Government Code Sections 66000 and following) and other authority providing for the levy of fees on new development to pay for public capital improvements (collectively, the “Fee Act”) through the levy of special assessments pursuant to the Municipal Improvement Act of 1913 (Streets and Highways Code Sections 10000 and following) (the “1913 Act”) and the issuance of improvement bonds (the “Local Obligations”) under the Improvement Bond Act of 1915 (Streets and Highways Code Sections 8500 and following) (the “1915 Act”) upon the security of the unpaid special assessments; and WHEREAS, the “Mello-Roos Community Facilities Act of 1982,” being Chapter 2.5, Part 1, Division 2, Title 5 (beginning with Section 53311) of the 42 Government Code of the State (the “Mello-Roos Act”) is an applicable provision of State law available to, among other things, finance public improvements necessary to meet increased demands placed upon local agencies as a result of development; and
WHEREAS, the Authority also uses SCIP to allow the financing of Fees and Improvements through the levy of special taxes and the issuance of Local Obligations under the Mello-Roos Act upon the security of the special taxes; and WHEREAS, the City desires to allow the owners of property being developed within its jurisdiction (“Participating Developers”) to participate in SCIP and to allow the Authority to conduct proceedings and to form community facilities districts (“CFDs”) and to issue Local Obligations under the Mello-Roos Act, as well as to conduct assessment proceedings to form assessment districts (“Assessment Districts”) under the 1913 Act and to issue Local Obligations under the 1915 Act, to finance Fees levied on such properties and Improvements, provided that such Participating Developers voluntarily agree to participate and consent to the levy of such assessments or special taxes, as applicable; and
WHEREAS, from time to time when eligible property owners within the jurisdiction of the City elect to be Participating Developers, the Authority will conduct proceedings under the 1913 Act and the Mello-Roos Act and issue Local Obligations under the 1915 Act and the Mello-Roos Act to finance Fees payable by such property owners and Improvements and, at the conclusion of such proceedings, will levy assessments or special taxes, as applicable on such property within the territory of the City; and
WHEREAS, both the Authority and the City are “local agencies” under the Mello-Roos Act; and
WHEREAS, the Mello-Roos Act permits two or more local agencies to enter into a joint community facilities agreement to exercise any power authorized by the Mello-Roos Act; and
WHEREAS, the City desires to enter into such an agreement with the Authority to authorize the Authority to form CFDs from time to time within the territorial limits of the City to finance Fees payable by such property owners and Improvements; and
WHEREAS, the City has previously presented Resolution No. 91-10 of the City Council of the City of Oakley, authorizing the City to join the Statewide Community Infrastructure Program; authorizing the California Statewide Communities Development Authority to accept applications from property owners, conduct special assessment proceedings and levy assessments within the territory of the City of Oakley; approving a form of acquisition agreement; and authorizing related actions (the “Original Resolution”), and such Original Resolution was adopted on August 10, 2010; and
43 WHEREAS, the City now wishes to amend and restate the Original Resolution; and
WHEREAS, there has been presented to this meeting a proposed form of Resolution of Intention to be adopted by the Authority in connection with assessment proceedings (the “ROI”), a copy of which is attached hereto as Exhibit A, and the territory within which assessments may be levied for SCIP (provided that each Participating Developer consents to such assessment) shall be coterminous with the City’s official boundaries of record at the time of adoption of such ROI (the “Proposed Boundaries”), and reference is hereby made to such boundaries for the plat or map required to be included in this Amended and Restated Resolution pursuant to Section 10104 of the Streets and Highways Code; and
WHEREAS, there has also been presented to this meeting a proposed form of Acquisition Agreement (the “Acquisition Agreement”), a copy of which is attached hereto as Exhibit B, to be approved as to form for use with respect to any Improvements to be constructed and installed by a Participating Developer and for which the Participating Developer requests acquisition financing as part of its SCIP application; and
WHEREAS, the City will not be responsible for the conduct of any proceedings; the levy or collection of assessments or special taxes or any required remedial action in the case of delinquencies in such assessment or special tax payments; or the issuance, sale or administration of the Local Obligations or any other bonds issued in connection with SCIP; and
WHEREAS, pursuant to SCIP, the Authority periodically issues Local Obligations on behalf of the local agency participants in SCIP to provide financing for the Fees and Improvements and then concurrently issues its revenue bonds pursuant to the Marks-Roos Local Bond Pooling Act of 1985, consisting of Article 4 (commencing with Section 6584) of Chapter 5, Division 7, Title 1 of the California Government Code (the “Marks-Roos Act”), the proceeds of which are used to purchase the Local Obligations; and
WHEREAS, pursuant to Government Code Section 6586.5, notice was published at least five days prior to the adoption of this Amended and Restated Resolution at a public hearing, which was duly conducted by this City Council concerning the significant public benefits of SCIP and the financing of the Improvements and the public capital improvements to be paid for with the proceeds of the Fees;
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Oakley as follows:

Section 1. This Amended and Restated Resolution shall constitute full “local approval,” under Section 9 of the Joint Powers Agreement, and under the Authority’s Local Goals and Policies (defined below), for the Authority to undertake 44 and conduct proceedings in accordance herewith and under the Mello Roos Act to form CFDs with boundaries that shall be coterminous with the City’s official boundaries of record at the time of such proceedings or any portion thereof (the “Proposed Boundaries”), and to authorize a special tax and to issue bonds with respect thereto; provided that the Participating Developers, who shall be the legal owners of such property at the time of formation of the CFD, execute a written consent to the levy of special tax in connection with SCIP by the Authority and execute a ballot in favor of the formation of such CFD and the Mello-Roos Act.

Section 2. The City hereby consents to the conduct of special assessment proceedings by the Authority in connection with SCIP pursuant to the 1913 Act and the issuance of Local Obligations under the 1915 Act on any property within the Proposed Boundaries; provided, that:
(1) Such proceedings are conducted pursuant to one or more Resolutions of Intention in substantially the form of the ROI; and (2) The Participating Developers, who shall be the legal owners of such property at the time of the formation of the Assessment District, execute a written consent to the levy of assessments in connection with SCIP by the Authority and execute an assessment ballot in favor of such assessment in compliance with the requirements of Section 4 of Article XIIID of the State Constitution.

Section 3. The Joint Powers Agreement, together with the terms and provisions of this Amended and Restated Resolution, shall together constitute a separate joint community facilities agreement between the City and the Authority under the Mello-Roos Act for each CFD formed. As, without this Amended and Restated Resolution, the Authority has no power to finance City Fees and/or City Improvements (as such terms are defined herein) in proceedings under the MelloRoos Act to form the CFD, adoption by the Commission of the Authority of each Resolution of Intention to form a CFD under the Mello-Roos Act to finance City Fees and City Improvements shall constitute acceptance of the terms hereof by the Authority with respect to such CFD.

Section 4. This Amended and Restated Resolution and the agreement it embodies are determined to be beneficial to the residents/customers of the City and are in the best interests of the residents of the City, and of the future residents of the area within the proposed CFDs and Assessment Districts. The City hereby finds and declares that the issuance of revenue bonds by the Authority to purchase Local Obligations in connection with SCIP will provide significant public benefits, including without limitation, savings in effective interest rate, bond preparation, bond underwriting and bond issuance costs, and the more efficient delivery of local agency services to residential and commercial development within the City.

Section 5. The Authority has adopted Local Goals and Policies as required by Section 53312.7 of the Mello-Roos Act. The City approves the use of those Local Goals and Policies in connection with the formation of CFDs. The City 45 hereby agrees that the Authority may act in lieu of the City under those Local Goals and Policies in forming and administering the CFDs.

Section 6. The Authority has prepared and will update from time to time the “SCIP Manual of Procedures” (the “Manual”), and the City will handle Fee revenues and funds for Improvements for properties participating in SCIP in accordance with the procedures set forth in the Manual.

Section 7. Pursuant to the Mello-Roos Act and this Amended and Restated Resolution, the Authority may conduct proceedings under the MelloRoos Act to form the CFDs and to have such CFDs authorize the financing of any or all of the facilities and Fees set forth on Exhibit C, attached hereto. All of the facilities, whether to be financed directly or through Fees, shall be facilities that have an expected useful life of five years or longer and are facilities that the City or other local public agencies, as the case may be, are authorized by law to construct, own or operate, or to which they may contribute revenue. Exhibit C may be modified from time to time by written agreement between an authorized representative of the Authority and of the City. The facilities are referred to herein as the “Improvements,” and the Improvements to be owned by the City are referred to as the “City Improvements.” The Fees paid or to be paid to the City are referred to as the “City Fees.”
Section 8. For Fees paid or to be paid to another agency by any particular CFD (an “Other Local Agency”), the Authority will obtain the written consent of that Other Local Agency before issuing Local Obligations to fund such Fees, as required by the Mello-Roos Act. For the Improvements to be owned by an Other Local Agency, the Authority will separately identify them in its proceedings, and will enter into a joint community facilities agreement with such Other Local Agency prior to issuing Local Obligations to finance such Improvements, as required by the Mello-Roos Act. Each joint community facilities agreement with each Other Local Agency will contain a provision that the Other Local Agency will provide indemnification to the City to the same extent that the City provides indemnification to the Other Local Agency under the terms of this Amended and Restated Resolution.

Section 9. At the time of formation of each CFD, the City will certify to the Commission of the Authority that all of the City Improvements including the improvements to be constructed or acquired with the proceeds of City Fees to be funded by such CFD are necessary to meet increased demands placed upon the City as a result of development occurring or expected to occur within the proposed CFDs in the form attached hereto as Exhibit D. Any appropriate officer or staff of the City is authorized to execute and deliver such certificate in substantially the form attached hereto as Exhibit D, with such changes as such signatory shall approve. Joint community facilities agreements with other local agencies will each contain a requirement that each Other Local Agency will make identical certification in connection with respect to the Improvements to be owned by, and Fees paid or to be paid to, such Other Local Agency equivalent to that made by the City in this paragraph.
46 Section 10. The Authority will apply the special tax collections initially as required by the documents under which any Local Obligations are issued; and thereafter, to the extent not provided in the Local Obligations documents, may pay its own reasonable administrative costs incurred in the administration of the CFDs.

The Authority will remit any special tax revenues from any particular CFD remaining after the final retirement of all related Local Obligations to the City and to the other local agencies in the proportions specified in the Authority’s proceedings. The City will apply any such special tax revenues it receives for authorized City Improvements or City Fees and its own administrative costs only as permitted by the Mello-Roos Act. The joint community facilities agreements with each Other Local Agency must require the Other Local Agency to apply the special tax revenues they receive for their authorized Improvements and Fees under the CFDs and for their own related administrative costs only as permitted by the MelloRoos Act.

Section 11. The Authority will administer the CFDs, including employing and paying all consultants, annually levying the special tax and all aspects of paying and administering the Local Obligations, and complying with all State and Federal requirements appertaining to the proceedings, including the requirements of the United States Internal Revenue Code. The City will cooperate fully with the Authority in respect of the requirements of the Internal Revenue Code and to the extent information is required of the City to enable the Authority to perform its disclosure and continuing disclosure obligations with respect to the Local Obligations and any revenue bonds, although the City will not participate in nor be considered to be a participant in the proceedings respecting the CFDs (other than as a party to the agreement embodied by this Amended and Restated Resolution) nor will the City be or be considered to be an issuer of the Local Obligations nor any revenue bonds. The Authority is required to obtain a provision equivalent to this paragraph in all joint community facilities agreements with each Other Local Agency.

Section 12. In the event the Authority completes issuance and sale of Local Obligations, and Local Obligation proceeds become available to finance the Improvements, the Authority shall establish and maintain a special fund for each development project (the “Acquisition and Construction Fund”). The portion of Local Obligation proceeds which is intended to be utilized to finance the Improvements and Fees shall be deposited in the Acquisition and Construction Fund. The Acquisition and Construction Fund will be available both for City Improvements and City Fees and for the Improvements and Fees pertaining to each Other Local Agency. Subaccounts shall be created as necessary.

Section 13. As respects the Authority and each Other Local Agency, the City agrees to fully administer, and to take full governmental responsibility for, the construction or acquisition of the City Improvements and for the administration and expenditure of the City Fees including but not limited to environmental review, approval of plans and specifications, bid requirements, performance and payment bond requirements, insurance requirements, contract and construction administration, staking, inspection, acquisition of necessary property interests in 47 real or personal property, the holding back and administration of retention payments, punch list administration, and the Authority and each Other Local Agency shall have no responsibility in that regard. The City reserves the right, as respects each Participating Developer, to require the Participating Developer to contract with the City to assume any portion or all of this responsibility. The Authority is required to obtain provisions equivalent to this paragraph in the joint community facilities agreement with each Other Local Agency.

Section 14. The City agrees to indemnify and to hold the Authority, its other members, and its other members’ officers, agents and employees, and each Other Local Agency and their officers, agents and employees (collectively, the “Indemnified Parties”) harmless from any and all claims, suits and damages (including costs and reasonable attorneys’ fees) arising out of the design, engineering, construction and installation of the City Improvements and the improvements to be financed or acquired with the City Fees. The City reserves the right, as respects each Participating Developer, to require the Participating Developer to assume by contract with the City any portion or all of this responsibility. The Authority is required to obtain a provision equivalent to this paragraph in all joint community facilities agreements with each Other Local Agency naming the City and its officers, agents and employees as Indemnified Parties with respect to each Other Local Agency’s respective Improvements and the improvements to be constructed or acquired with each Other Local Agency’s Fees.

Section 15. As respects the Authority and each Other Local Agency, the City agrees – once the City Improvements are constructed according to the approved plans and specifications, and the City and the Participating Developer have put in place their agreed arrangements for the funding of maintenance of the City Improvements – to accept ownership of the City Improvements, to take maintenance responsibility for the City Improvements, and to indemnify and hold harmless the Indemnified Parties to the extent provided in the preceding paragraph from any and all claims, etc., arising out of the use and maintenance of the City Improvements. The City reserves the right, as respects the Participating Developer, to require the Participating Developer by contract with the City to assume any portion or all of this responsibility. The Authority is required to obtain a provision equivalent to this paragraph in all joint community facilities agreements with each Other Local Agency naming the City and its officers, agents and employees as Indemnified Parties.

Section 16. The City acknowledges the requirement of the Mello-Roos Act that if the City Improvements are not completed prior to the adoption by the Commission of the Authority of the Resolution of Formation of the CFD for each respective development project, the City Improvements must be constructed as if they had been constructed under the direction and supervision, or under the authority of, the City. The City acknowledges that this means all City Improvements must be constructed under contracts that require the payment of prevailing wages as required by Section 1720 and following of the Labor Code of the State of California. The Authority makes no representation that this 48 requirement is the only applicable legal requirement in this regard. The City reserves the right, as respects the Participating Developer, to assign appropriate responsibility for compliance with this paragraph to the Participating Developer.

Section 17. The form of the Acquisition Agreement attached hereto as Exhibit B is hereby approved, and the [City Manager] or such officer’s designee (the “Authorized Officer”) is authorized to execute, and deliver to the Participating Developer, the Acquisition Agreement on behalf of the City in substantially that form, with such changes as shall be approved by the Authorized Officer after consultation with the City Attorney and the Authority’s bond counsel, such approval to be conclusively evidenced by the execution and delivery thereof.

Section 18. After completion of the City Improvements and appropriate arrangements for the maintenance of the City Improvements, or any discrete portion thereof as provided in Section 53313.51 of the Mello-Roos Act and in the Acquisition Agreement, to the satisfaction of the City, and in conjunction with the City’s acceptance thereof, acquisition of the City Improvements shall be undertaken as provided in the Acquisition Agreement.

Section 19. The City hereby consents to the formation of the CFDs in accordance with this Amended and Restated Resolution and consents to the assumption of jurisdiction by the Authority for the proceedings respecting the CFDs with the understanding that the Authority will hereafter take each and every step required for or suitable for consummation of the proceedings, the levy, collection and enforcement of the special tax, and the issuance, sale, delivery and administration of the Local Obligations, all at no cost to the City and without binding or obligating the City’s general fund or taxing authority.

Section 20. The terms of the Agreement embodied by this Amended and Restated Resolution may be amended by a writing duly authorized, executed and delivered by the City and the Authority, except that no amendment may be made after the issuance of the Local Obligations by the Authority that would be detrimental to the interests of the bondholders without complying with all of the bondholder consent provisions for the amendment of the bond resolutions, bond indentures or like instruments governing the issuance, delivery and administration of all outstanding Local Obligations.

Section 21. Except to the extent of the indemnifications extended to each Other Local Agency in the Agreement embodied by this Amended and Restated Resolution, and the City’s agreement to take responsibility for and ownership of the City Improvements, no person or entity, including the Participating Developer, shall be deemed to be a third party beneficiary of this Amended and Restated Resolution, and nothing in this Amended and Restated Resolution (either express or implied) is intended to confer upon any person or entity other than the Authority and the City (and their respective successors and assigns) any rights, remedies, obligations or liabilities under or by reason of this Amended and Restated Resolution.
49 Section 22. The City shall be identified as a third-party beneficiary of all joint community facilities agreements between the Authority and each Other Local Agency to the extent of the indemnification provisions and the provisions whereby each Other Local Agency agrees to take responsibility for and ownership of their Improvements.

Section 23. The appropriate officials and staff of the City are hereby authorized and directed to make SCIP applications available to all property owners who are subject to Fees for new development within the City and/or who are conditioned to install Improvements and to inform such owners of their option to participate in SCIP; provided, that the Authority shall be responsible for providing such applications and related materials at its own expense. The staff persons listed on the attached Exhibit E, together with any other staff persons chosen by the City Manager from time to time, are hereby designated as the contact persons for the Authority in connection with SCIP.

Section 24. The appropriate officials and staff of the City are hereby authorized and directed to execute and deliver such closing certificates, requisitions, agreements and related documents, including but not limited to such documents as may be required by bond counsel in connection with the participation in SCIP of any districts, authorities or other third-party entities entitled to own Improvements and/or to levy and collect fees on new development to pay for public capital improvements within the jurisdiction of the City, as are reasonably required by the Authority in accordance with the Manual to implement SCIP and to evidence compliance with the requirements of federal and state law in connection with the issuance by the Authority of the Local Obligations and any other bonds for SCIP. To that end, and pursuant to Treasury Regulations Section 1.150-2, the staff persons listed on Exhibit E, or other staff person acting in the same capacity for the City with respect to SCIP, are hereby authorized and designated to declare the official intent of the City with respect to the public capital improvements to be paid or reimbursed through participation in SCIP.

Section 25. This Amended and Restated Resolution shall take effect immediately upon its adoption. The City Clerk of the City of Oakley is hereby authorized and directed to transmit a certified copy of this Amended and Restated Resolution to the Secretary of the Authority. This Amended and Restated Resolution shall remain in force with respect to any Assessment District and CFD formed until all Local Obligations have been retired and the authority to levy the special tax conferred by any CFD proceedings and to levy the assessment conferred by any assessment proceedings has ended or is otherwise terminated.

The Original Resolution shall remain in force with respect to any SCIP application approved by the City and any Assessment District formed pursuant to its authority until all Local Obligations have been retired and the authority to levy the assessment conferred by any assessment proceedings carried out pursuant to the Original Resolution has ended or is otherwise terminated. 50 PASSED AND ADOPTED by the City Council of the City of Oakley at a meeting held on the 24th of October 2023 by the following vote:

AYES:

NOES:

ABSENT:

ABSTENTIONS:

APPROVED:

_______________________
ATTEST: Aaron Meadows, Mayor

Libby Vreonis, City Clerk Date
51 A-1

EXHIBIT A TO THE RESOLUTION
RESOLUTION NO. SCIP

RESOLUTION OF INTENTION OF THE CALIFORNIA STATEWIDE

COMMUNITIES DEVELOPMENT AUTHORITY TO FINANCE CAPITAL

IMPROVEMENTS AND/OR THE PAYMENT OF DEVELOPMENT

IMPACT FEES FOR PUBLIC CAPITAL IMPROVEMENTS IN THE

PROPOSED STATEWIDE COMMUNITY INFRASTRUCTURE
PROGRAM ASSESSMENT DISTRICT NO. ___ ([NAME OF PROJECT])

CITY OF OAKLEY, COUNTY OF CONTRA COSTA, APPROVING A

PROPOSED BOUNDARY MAP, MAKING CERTAIN DECLARATIONS,

FINDINGS AND DETERMINATIONS CONCERNING RELATED

MATTERS, AND AUTHORIZING RELATED ACTIONS IN CONNECTION

THEREWITH
WHEREAS, under the authority of the Municipal Improvement Act of 1913 (the “1913 Act”), being Division 12 (commencing with Sections 10000 and following) of the California Streets and Highways Code (the “Code”), the Commission (the “Commission”) of the California Statewide Communities Development Authority (the “Authority”) intends to finance, through its Statewide Community Infrastructure Program, the payment of certain development impact fees for public improvements (the “Improvement Fees”) and/or to finance certain public capital improvements to be constructed by or on behalf of the property owner(s) and to be acquired by the City of Oakley (the “Improvements”) as described in Exhibit A attached hereto and by this reference incorporated herein, all of which are of benefit to the property within the proposed Statewide Community Infrastructure Program Assessment District No. ___ ([name of project]) City of Oakley, County of Contra Costa (the “Assessment District”); WHEREAS, the Commission finds that the land specially benefited by the Improvements and/or the Improvement Fees is shown within the boundaries of the map entitled “Proposed Boundaries of California Statewide Communities Development Authority Statewide Community Infrastructure Program Assessment District No. ___ ([name of project]) City of Oakley, County of Contra Costa, State of California,” a copy of which map is on file with the Secretary and presented to this Commission meeting, and determines that the land within the exterior boundaries shown on the map shall be designated “Statewide Community Infrastructure Program Assessment District No. ___ ([name of project]) City of Oakley, County of Contra Costa, State of California”; WHEREAS, the City of Oakley is a member of the Authority and has approved the adoption on its behalf of this Resolution of Intention and has consented to the levy of the assessments in the Assessment District;
NOW, THEREFORE, BE IT RESOLVED that the Commission of the California Statewide Communities Development Authority hereby finds, determines, and resolves as follows:
52 A-2
Section 1. The above recitals are true and correct.

Section 2. Pursuant to Section 2961 of the Special Assessment Investigation, Limitation and Majority Protest Act of 1931 (the “1931 Act”), being Division 4 (commencing with Section 2800) of the Code, the Commission hereby declares its intent to comply with the requirements of the 1931 Act by complying with Part 7.5 thereof.

Section 3. The Commission has designated a registered, professional engineer as Engineer of Work for this project, and hereby directs said firm to prepare the report containing the matters required by Sections 2961(b) and 10204 of the Code, as supplemented by Section 4 of Article XIIID of the California Constitution.

Section 4. The proposed boundary map of the Assessment District is hereby approved and adopted. Pursuant to Section 3111 of the Code, the Secretary of the Authority is directed to file a copy of the map in the office of the County Recorder of the County of Contra Costa within fifteen (15) days of the adoption of this resolution.

Section 5. The Commission determines that the cost of financing the Improvements and/or the payment of the Improvement Fees shall be specially assessed against the lots, pieces or parcels of land within the Assessment District benefiting from the financing of the Improvements and/or the payment of the Improvement Fees. The Commission intends to levy a special assessment upon such lots, pieces or parcels in accordance with the special benefit to be received by each such lot, piece or parcel of land, respectively, from the financing of the Improvements and/or the payment of the Improvement Fees.

Section 6. The Commission intends, pursuant to subparagraph (f) of Section 10204 of the Code, to provide for an annual assessment upon each of the parcels of land in the proposed Assessment District to pay various costs and expenses incurred from time to time by the Authority and not otherwise reimbursed to the Authority which result from the administration and collection of assessment installments or from the administration or registration of the improvement bonds and the various funds and accounts pertaining thereto.

Section 7. Bonds representing unpaid assessments and bearing interest at a rate not to exceed twelve percent (12%) per annum, will be issued in the manner provided by the Improvement Bond Act of 1915 (Division 10 of the Code), and the last installment of the bonds shall mature not to exceed twenty-nine (29) years from the second day of September next succeeding twelve (12) months from their date.

Section 8. The procedure for the collection of assessments and advance retirement of bonds under the Improvement Bond Act of 1915 shall be as provided in Part 11.1 thereof.

Section 9. Neither the Authority nor any member agency thereof will obligate itself to advance available funds from its or their own funds or otherwise to cure any deficiency which may occur in the bond redemption fund. A determination not to 53 A-3
obligate itself shall not prevent the Authority or any such member agency from, in its sole discretion, so advancing funds.

Section 10. The amount of any surplus remaining in the improvement fund after acquisition of the Improvements and/or payment of Improvement Fees and all other claims shall be distributed in accordance with the provisions of Section 10427.1 of the Code.

Section 11. To the extent any Improvement Fees are paid to the Authority in cash with respect to property within the proposed Assessment District prior to the date of issuance of the bonds, the amounts so paid shall be reimbursed from the proceeds of the bonds to the property owner or developer that made the payment. 54 A-4
PASSED AND ADOPTED by the California Statewide Communities Development Authority this ___ day of ______, 20__.

I, the undersigned, an Authorized Signatory of the California Statewide Communities Development Authority, DO HEREBY CERTIFY that the foregoing resolution was duly adopted by the Commission of the Authority at a duly called meeting of the Commission of the Authority held in accordance with law on _____ __ , 20__.

By
Authorized Signatory
California Statewide
Communities Development Authority
55 EXHIBIT A TO THE RESOLUTION OF INTENTION

DESCRIPTION OF WORK
The payment of development impact fees levied within the Assessment District and/or public capital improvements to be acquired and owned by the City of Oakley upon or for the benefit of parcels within the Assessment District, for the project known as [Project Name], which are authorized to be financed pursuant to the Municipal Improvement Act of 1913 and as to which the owners of the applicable parcels within the Assessment District have applied for participation in SCIP, as more particularly described below.

PAYMENT OF IMPACT FEES
CAPITAL IMPROVEMENTS*
*Capital improvements includes funding for incidental costs associated with the capital improvements, including but not limited to, contingency, design, engineering, and construction management
[End of Form of Resolution of Intention]
56 B-1

EXHIBIT B TO THE RESOLUTION

FORM OF ACQUISITION AGREEMENT
_____________________

CALIFORNIA STATEWIDE COMMUNITIES DEVELOPMENT AUTHORITY

STATEWIDE COMMUNITY INFRASTRUCTURE PROGRAM

ACQUISITION AGREEMENT

BY AND BETWEEN

CITY OF OAKLEY
AND
[DEVELOPER]
Dated as of _______, 20__
57 B-2

ACQUISITION AGREEMENT
Recitals
A. The parties to this Acquisition Agreement (the “Agreement”) are the CITY OF OAKLEY, (the “Local Agency”), and [DEVELOPER], a [indicate type of legal entity] (the “Developer”).

B. The effective date of this Agreement is ________, 20__.

C. The Developer has applied for the financing of, among other things, certain public capital improvements to be owned by the Local Agency (collectively, the “Acquisition Improvements”) through the California Statewide Communities Development Authority (the “Authority”) and its Statewide Community Infrastructure Program (“SCIP”). [For CFDS:][The Acquisition Improvements are to be owned and operated by the Local Agency, and the financing is to be accomplished through a community facilities district which will be administered by the Authority under and pursuant to the Mello-Roos Community Facilities Act of 1982 – California Government Code Sections 53311 and following (the “Act”). On [__________], 20[_], the Local Agency entered into a Joint Community Facilities Agreement authorizing the Authority to form a community facilities district (the “District”) within the territorial limits of the Local Agency to finance, among other things, the Acquisition Improvements. On [__________], 20[_], the Authority formed the District, and on the same date, a landowner election was conducted in which all of the votes were cast unanimously in favor of conferring the District authority on the Authority Commission.] [For Assessment Districts:][The Acquisition Improvements are to be owned and operated by the Local Agency, and the financing is to be accomplished through an assessment district (the “District”) which will be administered by the Authority under and pursuant to Municipal Improvement Act of 1913 (Streets and Highways Code Sections 10000 and following) (the “1913 Act”) and the issuance of improvement bonds (the “Local Obligations”) under the Improvement Bond Act of 1915 (Streets and Highways Code Sections 8500 and following) (the “1915 Act” and, together with the “1913 Act” the “Act”).] D. The administration, payment and reimbursement of the capital facilities fees is agreed to be governed by the provisions of the SCIP Manual of Procedures as it may be amended from time to time. The administration, payment and reimbursement of the Acquisition Improvements shall be as provided herein.

E. Under SCIP, the Authority intends to levy [assessments] [special taxes] and issue bonds, in one or more series, to fund, among other things, all or a portion of the costs of the Acquisition Improvements. The portion of the proceeds of the [special taxes and] bonds allocable to the cost of the Acquisition Improvements, together with interest earned thereon, is referred to herein as the “Available Amount”.

F. The Authority will provide financing for the acquisition by the Local Agency of the Acquisition Improvements and the payment of the Acquisition Price (as defined herein) of the Acquisition Improvements from the Available Amount. Attached hereto as 58 B-3
Exhibit A is a description of the Acquisition Improvements, which includes authorized discrete and usable portions, if any, of the public capital improvements, pursuant to Section 53313.51 of the Act, to be acquired from the Developer.

G. The parties anticipate that, upon completion of the Acquisition Improvements and subject to the terms and conditions of this Agreement, the Local Agency will acquire such completed Acquisition Improvements with the Available Amount.

H. Any and all monetary obligations of the Local Agency arising out of this Agreement are the special and limited obligations of the Local Agency payable only from the Available Amount, and no other funds whatsoever of the Local Agency shall be obligated therefor.

I. Attached to this Agreement are Exhibit A (Acquisition Improvements and the Eligible Portions thereof) and Exhibit B (Form of Requisition), which are incorporated into this Agreement for all purposes.

In consideration of Recitals A through I, inclusive, and the mutual covenants, undertakings and obligations set forth below, the Local Agency and the Developer agree as stated below.
59 B-4
Agreement

ARTICLE I
DEFINITIONS; DISTRICT FORMATION AND

FINANCING PLAN
Section 1.01. Definitions. As used herein, the following capitalized terms shall have the meanings ascribed to them below:
“Acceptable Title” means free and clear of all monetary liens, encumbrances, assessments, whether any such item is recorded or unrecorded, and taxes, except those items which are reasonably determined by the Local Agency Engineer not to interfere with the intended use and therefore are not required to be cleared from the title.
“Acquisition and Construction Fund” means the City of Oakley Acquisition and Construction Fund” established by the Authority pursuant to Section 1.03 hereof for the purpose of paying the Acquisition Price of the Acquisition Improvements and which fund may be held as a subaccount within a fund established under the Authority Trust Agreement and may be commingled with acquisition and construction fund monies available for other public capital improvements.
“Acquisition Improvement” shall have the meaning assigned to such term in the recitals and are further described in Exhibit A.
“Acquisition Price” means the total amount eligible to be paid to the Developer upon acquisition of an Acquisition Improvement as provided in Section 2.03 not to exceed the Actual Cost of the Acquisition Improvement.
“Act” has the meaning ascribed thereto in Recital C.
“Actual Cost” means the total cost of an Acquisition Improvement, as documented by the Developer to the satisfaction of the Local Agency and as certified by the Local Agency Engineer in an Actual Cost Certificate including, without limitation, (a) the Developer’s cost of constructing such Acquisition Improvement including grading, labor, material and equipment costs, (b) the Developer’s cost of designing and engineering the Acquisition Improvement, preparing the plans and specifications and bid documents for such Acquisition Improvement, and the costs of inspection, materials testing and construction staking for such Acquisition Improvement, (c) the Developer’s cost of any performance, payment and maintenance bonds and insurance, including title insurance, required hereby for such Acquisition Improvement, (d) the Developer’s cost of any real property or interest therein that is either necessary for the construction of such Acquisition Improvement (e.g., temporary construction easements, haul roads, etc.), or is required to be conveyed with such Acquisition Improvement in order to convey Acceptable Title thereto to the Local Agency or its designee, (e) the Developer’s cost of environmental evaluation or mitigation required for such Acquisition 60 B-5
Improvement, (f) the amount of any fees actually paid by the Developer to governmental agencies in order to obtain permits, licenses or other necessary governmental approvals and reviews for such Acquisition Improvement, (g) the Developer’s cost for construction and project management, administration and supervision services for such Acquisition Improvement, (h) the Developer’s cost for professional services related to such Acquisition Improvement, including engineering, accounting, legal, financial, appraisal and similar professional services, and (i) the costs of construction financing incurred by the Developer with respect to such Acquisition Improvement. “Actual Cost Certificate” means a certificate prepared by the Developer detailing the Actual Cost of an Acquisition Improvement, or an Eligible Portion thereof, to be acquired hereunder, as may be revised by the Local Agency Engineer pursuant to Section 2.03.
“Agreement” means this Acquisition Agreement, dated as of [_______________], 20[_].
“Authority” means the California Statewide Communities Development Authority. “Authority Trust Agreement” means a Trust Agreement entered into by the Authority and an Authority Trustee in connection with the issuance of bonds. “Authority Trustee” means the financial institution identified as trustee in an Authority Trust Agreement.
“Available Amount” shall have the meaning assigned to the term in Recital E. “Bonds” means bonds or other indebtedness issued by the Authority as taxexempt or taxable bonds or other indebtedness, in one or more series, that is to be repaid by the District.
“Code” means the Streets and Highways Code or the Government Code of the State of California, as applicable.
“Developer” means [Developer], its successors and assigns. “Disbursement Request Form” means a requisition for payment of funds from the Acquisition and Construction Fund for an Acquisition Improvement, or an Eligible Portion thereof in substantially the form contained in Exhibit B hereto. “District” shall have the meaning assigned to the term in Recital C. “Eligible Portion” shall have the meaning ascribed to it in Section 2.03 below. “Installment Payment” means an amount equal to ninety percent (90%) of the Actual Cost of an Eligible Portion.
“Local Agency” means the City of Oakley.
61 B-6
“Local Agency Engineer” means the Engineer of the Local Agency or his/her designee who will be responsible for administering the acquisition of the Acquisition Improvements hereunder.
“Project” means the Developer’s development of the property in the District, including the design and construction of the Acquisition Improvements and the other public and private improvements to be constructed by the Developer within the District. [“Special Taxes” means annual special taxes, and prepayments thereof, authorized by the District to be levied by the Commission of the Authority.] “Title Documents” means, for each Acquisition Improvement acquired hereunder, a grant deed or similar instrument necessary to transfer title to any real property or interests therein (including easements), or an irrevocable offer of dedication of such real property with interests therein necessary to the operation, maintenance, rehabilitation and improvement by the Local Agency of the Acquisition Improvement (including, if necessary, easements for ingress and egress) and a bill of sale or similar instrument evidencing transfer of title to the Acquisition Improvement (other than said real property interests) to the Local Agency, where applicable.

Section 1.02. Participation in SCIP. [For CFDs:][The Local Agency has entered into a Joint Community Facilities Agreement with the Authority for the purpose of accepting applications from time to time of developers within the Local Agency’s jurisdictional boundaries.] Developer has applied for financing through SCIP of the Acquisition Improvements, and such application has been approved by the Local Agency. Developer and Local Agency agree that until and unless such financing is completed by the Authority and the Available Amount is deposited in the Acquisition Account (as defined in Section 1.03 below), neither the Developer nor the Local Agency shall have any obligations under this agreement. Developer agrees to cooperate with the Local Agency and the Authority in the completion of SCIP financing for the Acquisition Improvements.

Section 1.03. Deposit and Use of Available Amount.
(a) Upon completion of the SCIP financing, the Available Amount will be deposited by the Authority in the Acquisition Account. (b) The Authority will cause the SCIP Trustee to establish and maintain an account (the “Acquisition Account”) for the purpose of holding all funds for the Acquisition Improvements. All earnings on amounts in the Acquisition and Construction Fund shall remain in the Acquisition and Construction Fund for use as provided herein and pursuant to the Authority Trust Agreement. Money in the Acquisition and Construction Fund shall be available to respond to delivery of a Disbursement Request Form and to be paid to the Developer or its designee to pay the Acquisition Price of the Acquisition Improvements, as specified in Article II hereof. Upon completion of all of the Acquisition Improvements and the payment of all costs thereof, any remaining funds in the Acquisition and Construction Fund (less any amount determined by the Local 62 B-7
Agency as necessary to reserve for claims against the account) (i) shall be applied to pay the costs of any additional Acquisition Improvements eligible for acquisition with respect to the Project as approved by the Authority and, to the extent not so used, (ii) shall be applied by the Authority [to call Bonds or to reduce Special Taxes as the Authority shall determine][as provided in Section 10427.1 of the Code to pay a portion of the assessments levied on the Project property in the District].

Section 1.04. No Local Agency Liability; Local Agency Discretion; No Effect on Other Agreements. In no event shall any actual or alleged act by the Local Agency or any actual or alleged omission or failure to act by the Local Agency with respect to SCIP subject the Local Agency to monetary liability therefor. Further, nothing in this Agreement shall be construed as affecting the Developer’s or the Local Agency’s duty to perform their respective obligations under any other agreements, public improvement standards, land use regulations or subdivision requirements related to the Project, which obligations are and shall remain independent of the Developer’s and the Local Agency’s rights and obligations under this Agreement.

ARTICLE II

DESIGN, CONSTRUCTION AND ACQUISITION OF ACQUISITION IMPROVEMENTS Section 2.01. Letting and Administering Design Contracts. The parties presently anticipate that the Developer has awarded and administered or will award and administer engineering design contracts for the Acquisition Improvements to be acquired from Developer. All eligible expenditures of the Developer for design engineering and related costs in connection with the Acquisition Improvements (whether as an advance to the Local Agency or directly to the design consultant) shall be reimbursed at the time of acquisition of such Acquisition Improvements. The Developer shall be entitled to reimbursement for any design costs of the Acquisition Improvements only out of the Acquisition Price as provided in Section 2.03 and shall not be entitled to any payment for design costs independent of or prior to the acquisition of Acquisition Improvements.

Section 2.02. Letting and Administration of Construction Contracts; Indemnification. State law requires that all Acquisition Improvements not completed prior to the formation of the District shall be constructed as if they were constructed under the direction and supervision, or under the authority, of the Local Agency. In order to assure compliance with those provisions, except for any contracts entered into prior to the date hereof, Developer agrees to comply with the requirements set forth in Exhibit C hereto with respect to the bidding and contracting for the construction of the Acquisition Improvements. The Developer agrees that all the contracts shall call for payment of prevailing wages as required by the Labor Code of the State of California.

The Developer’s indemnification obligation set forth in Section 3.01 of this Agreement shall also apply to any alleged failure to comply with the requirements of this Section, and/or applicable State laws regarding public contracting and prevailing wages. 63 B-8
Section 2.03. Sale of Acquisition Improvements. The Developer agrees to sell to the Local Agency each Acquisition Improvement to be constructed by Developer (including any rights-of-way or other easements necessary for the Acquisition Improvements, to the extent not already publicly owned), when the Acquisition Improvement is has been constructed and is complete to the satisfaction of the Local Agency for an amount not to exceed the lesser of (i) the Available Amount or (ii) the Actual Cost of the Acquisition Improvement. Exhibit A, attached hereto and incorporated herein, contains a list of the Acquisition Improvements. Portions of an Acquisition Improvement eligible for Installment Payments prior to completion of the entire Acquisition Improvement are described as eligible, discrete and usable portions in Exhibit A (each, an “Eligible Portion”). At the time of completion of each Acquisition Improvement, or Eligible Portion thereof, the Developer shall deliver to the Local Agency Engineer a written request for acquisition, accompanied by an Actual Cost Certificate, and by executed Title Documents for the transfer of the Acquisition Improvement where necessary. In the event that the Local Agency Engineer finds that the supporting paperwork submitted by the Developer fails to demonstrate the required relationship between the subject Actual Cost and eligible work, the Local Agency Engineer shall advise the Developer that the determination of the Actual Cost (or the ineligible portion thereof) has been disallowed and shall request further documentation from the Developer. If the further documentation is still not adequate, the Local Agency Engineer may revise the Actual Cost Certificate to delete any disallowed items and the determination shall be final and conclusive.

Certain soft costs for the Acquisition Improvements, such as civil engineering, may have been incurred pursuant to single contracts that include work relating also to the private portions of the Project. In those instances, the total costs under such contracts will be allocated to each Acquisition Improvement as approved by the Local Agency Engineer. Where a specific contract has been awarded for design or engineering work relating solely to an Acquisition Improvement, one hundred percent (100%) of the costs under the contract will be allocated to that Acquisition Improvement.

Amounts allocated to an Acquisition Improvement will be further allocated among the Eligible Portions of that Acquisition Improvement, if any, in the same proportion as the amount to be reimbursed for hard costs for each Eligible Portion bears to the amount to be reimbursed for hard costs for the entire Acquisition Improvement. Costs will be allocated to each Acquisition Improvement as approved by the Local Agency Engineer.

The costs of certain environmental mitigation required to mitigate impacts of the public and private portions of the Project will be allocated to each Acquisition Improvement as approved by the Local Agency Engineer.

In the event that the Actual Cost is in excess of the Available Amount, the Local Agency shall withdraw the Available Amount from the Acquisition Account and transfer said amount to the Developer. In the event that the Actual Cost is less than the Available Amount, the Local Agency shall withdraw an amount from the Acquisition Account equal to the Actual Cost, and shall transfer said amount to the Developer. Any amounts then remaining in the Acquisition Account shall be applied as provided in Section 1.03.
64 B-9
In no event shall the Local Agency be required to pay the Developer more than the amount on deposit in the Acquisition Account at the time such payment is requested.

Section 2.04. Conditions Precedent to Payment of Acquisition Price.

Payment to the Developer or its designee of the Acquisition Price for an Acquisition Improvement from the Acquisition and Construction Fund shall in every case be conditioned first upon the determination of the Local Agency Engineer, pursuant to Section 2.03, that the Acquisition Improvement satisfies all Local Agency regulations and ordinances and is otherwise complete and ready for acceptance by the Local Agency, and shall be further conditioned upon satisfaction of the following additional conditions precedent:
(a) The Developer shall have provided the Local Agency with lien releases or other similar documentation satisfactory to the Local Agency Engineer as evidence that none of the property (including any rights-of-way or other easements necessary for the operation and maintenance of the Acquisition Improvement, to the extent not already publicly owned) comprising the Acquisition Improvement, and the property which is subject to the [assessments/Special Taxes] of the District, is not subject to any prospective mechanics lien claim respecting the Acquisition Improvements.
(b) All due and payable property taxes, and installments of [assessments/Special Taxes] shall be current on property owned by the Developer or under option to the Developer that is subject to the lien of the District. (c) The Developer shall certify that it is not in default with respect to any loan secured by any interest in the Project.
(d) The Developer shall have provided the Local Agency with Title Documents needed to provide the Local Agency with title to the site, right-of-way, or easement upon which the subject Acquisition Improvements are situated. All such Title Documents shall be in a form acceptable to the Local Agency (or applicable governmental agency) and shall convey Acceptable Title. The Developer shall provide a policy of title insurance as of the date of transfer in a form acceptable to the Local Agency Engineer insuring the Local Agency as to the interests acquired in connection with the acquisition of any interest for which such a policy of title insurance is not required by another agreement between the Local Agency and the Developer. Each title insurance policy required hereunder shall be in the amount equal to or greater than the Acquisition Price.

Section 2.05. SCIP Requisition. Upon a determination by the Local Agency Engineer to pay the Acquisition Price of the Acquisition Improvements pursuant to Section 2.04, the Local Agency Engineer shall cause a SCIP Requisition to be submitted to the Program Administrator. The Program Administrator will review the SCIP Requisition and forward it with instructions to the SCIP Trustee and the SCIP Trustee shall make payment directly to the Developer of such amount pursuant to the 65 B-10
SCIP Trust Agreement. The Local Agency and the Developer acknowledge and agree that the SCIP Trustee shall make payment strictly in accordance with the SCIP Requisition and shall not be required to determine whether or not the Acquisition Improvements have been completed or what the Actual Costs may be with respect to such Acquisition Improvements. The SCIP Trustee shall be entitled to rely on the SCIP Requisition on its face without any further duty of investigation.

ARTICLE III

MISCELLANEOUS
Section 3.01. Indemnification and Hold Harmless. The Developer hereby assumes the defense of, and indemnifies and saves harmless the Local Agency, the Authority, and each of its respective officers, directors, employees and agents, from and against all actions, damages, claims, losses or expenses of every type and description to which they may be subjected or put, by reason of, or resulting from or alleged to have resulted from the acts or omissions of the Developer or its agents and employees in the performance of this Agreement, or arising out of any contract for the design, engineering and construction of the Acquisition Improvements or arising out of any alleged misstatements of fact or alleged omission of a material fact made by the Developer, its officers, directors, employees or agents to the Authority's underwriter, financial advisor, appraiser, district engineer or bond counsel or regarding the Developer, its proposed developments, its property ownership and its contractual arrangements contained in the official statement relating to the SCIP financing (provided that the Developer shall have been furnished a copy of such official statement and shall not have objected thereto); and provided, further, that nothing in this Section 3.01 shall limit in any manner the Local Agency’s rights against any of the Developer’s architects, engineers, contractors or other consultants. Except as set forth in this Section 3.01, no provision of this Agreement shall in any way limit the extent of the responsibility of the Developer for payment of damages resulting from the operations of the Developer, its agents and employees. Nothing in this Section 3.01 shall be understood or construed to mean that the Developer agrees to indemnify the Local Agency, the Authority or any of its respective officers, directors, employees or agents, for any negligent or wrongful acts or omissions to act of the Local Agency, Authority its officers, employees, agents or any consultants or contractors.

Section 3.02. Audit. The Local Agency shall have the right, during normal business hours and upon the giving of ten days’ written notice to the Developer, to review all books and records of the Developer pertaining to costs and expenses incurred by the Developer (for which the Developer seeks reimbursement) in constructing the Acquisition Improvements.

Section 3.03. Cooperation. The Local Agency and the Developer agree to cooperate with respect to the completion of the SCIP financing for the Acquisition Improvements. The Local Agency and the Developer agree to meet in good faith to 66 B-11
resolve any differences on future matters which are not specifically covered by this Agreement.

Section 3.04. General Standard of Reasonableness. Any provision of this Agreement which requires the consent, approval or acceptance of either party hereto or any of their respective employees, officers or agents shall be deemed to require that such consent, approval or acceptance not be unreasonably withheld or delayed, unless such provision expressly incorporates a different standard. The foregoing provision shall not apply to provisions in the Agreement which provide for decisions to be in the sole discretion of the party making the decision.

Section 3.05. Third Party Beneficiaries. The Authority and its officers, employees, agents or any consultants or contractors are expressly deemed third party beneficiaries of this Agreement with respect to the provisions of Section 3.01. It is expressly agreed that, except for the Authority with respect to the provisions of Section

3.01, there are no third party beneficiaries of this Agreement, including without limitation any owners of bonds, any of the Local Agency’s or the Developer’s contractors for the Acquisition Improvements and any of the Local Agency’s, the Authority's or the Developer’s agents and employees.

Section 3.06. Conflict with Other Agreements. Nothing contained herein shall be construed as releasing the Developer or the Local Agency from any condition of development or requirement imposed by any other agreement between the Local Agency and the Developer, and, in the event of a conflicting provision, such other agreement shall prevail unless such conflicting provision is specifically waived or modified in writing by the Local Agency and the Developer.

Section 3.07. Notices. All invoices for payment, reports, other communication and notices relating to this Agreement shall be mailed to:

If to the Local Agency:

Jeri Tejeda, Administrative Services Director
City of Oakley
3231 Main Street
Oakley, CA 94561
If to the Developer:
[Developer]
[Address to come]
Either party may change its address by giving notice in writing to the other party.

Section 3.08. Severability. If any part of this Agreement is held to be illegal or unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall be given effect to the fullest extent reasonably possible. 67 B-12
Section 3.09. Governing Law. This Agreement and any dispute arising hereunder shall be governed by and interpreted in accordance with the laws of the State of California.

Section 3.10. Waiver. Failure by a party to insist upon the strict performance of any of the provisions of this Agreement by the other party, or the failure by a party to exercise its rights upon the default of the other party, shall not constitute a waiver of such party’s right to insist and demand strict compliance by the other party with the terms of this Agreement.

Section 3.11. Singular and Plural; Gender. As used herein, the singular of any word includes the plural, and terms in the masculine gender shall include the feminine.

Section 3.12. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original.

Section 3.13. Successors and Assigns. This Agreement is binding upon the heirs, assigns and successors-in-interest of the parties hereto. The Developer may not assign its rights or obligations hereunder, except to successors-in-interest to the property within the District, without the prior written consent of the Local Agency.

Section 3.14. Remedies in General. It is acknowledged by the parties that the Local Agency would not have entered into this Agreement if it were to be liable in damages under or with respect to this Agreement or the application thereof, other than for the payment to the Developer of any (i) moneys owing to the Developer hereunder, or (ii) moneys paid by the Developer pursuant to the provisions hereof which are misappropriated or improperly obtained, withheld or applied by the Local Agency.

In general, each of the parties hereto may pursue any remedy at law or equity available for the breach of any provision of this Agreement, except that the Local Agency shall not be liable in damages to the Developer, or to any assignee or transferee of the Developer other than for the payments to the Developer specified in the preceding paragraph. Subject to the foregoing, the Developer covenants not to sue for or claim any damages for any alleged breach of, or dispute which arises out of, this Agreement.
[The remainder of this page intentionally left blank]
68 B-13
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year written above.

CITY OF OAKLEY
By:
_____________________________________
Joshua McMurray, City Manager
ATTEST:

By: ____________________________
Derek Cole, City Attorney
[DEVELOPER],
a [indicate type of legal entity]
By: __________________________
(Signature)
__________________________
(Print Name)
69 B-14
Exhibit A to the Acquisition Agreement

DESCRIPTION OF ACQUISITION IMPROVEMENTS AND BUDGETED AMOUNTS [To be completed based on Final Engineer’s Report]
Funding includes amounts for incidental costs associated with the capital improvements, including, but not limited to, contingency, design, engineering, and construction management.

ACQUISITION IMPROVEMENTS TOTAL AMOUNT*
[_] .................................................................................................. $[_] [_] .................................................................................................. $[_]

* Estimated. Acquisition Price will be determined based on Actual Cost as further described in this Acquisition Agreement.
70 B-15
Exhibit B to the Acquisition Agreement

FORM OF SCIP REQUISITION
To: BLX Group LLC
SCIP Program Administrator
777 S. Figueroa St., Suite 3200
Los Angeles, California 90017
Attention: Vo Nguyen
Fax: 213-612-2499
Re: Statewide Community Infrastructure Program
The undersigned, a duly authorized officer of the CITY OF OAKLEY hereby requests a withdrawal from the [DEVELOPER] ACQUISITION ACCOUNT, as follows:

Request Date: [Insert Date of Request]
Name of Developer: [Developer]
Withdrawal Amount: [Insert Acquisition Price]
Acquisition Improvements: [Insert Description of Acquisition Improvement(s) from Ex. A] Payment Instructions: [Insert Wire Instructions or Payment Address for Developer]
The undersigned hereby certifies as follows:

1. The Withdrawal is being made in accordance with a permitted use of such monies pursuant to the Acquisition Agreement, and the Withdrawal is not being made for the purpose of reinvestment.

2. None of the items for which payment is requested have been reimbursed previously from other sources of funds.

3. If the Withdrawal Amount is greater than the funds held in the Acquisition Account, the SCIP Program Administrator is authorized to amend the amount requested to be equal to the amount of such funds.

4. To the extent the Withdrawal is being made prior to the date bonds have been issued on behalf of SCIP, this withdrawal form serves as the declaration of official intent of the CITY OF OAKLEY, pursuant to Treasury Regulations 1.150-2, to reimburse with respect expenditures made from the Acquisition Account listed above in the amount listed above.

CITY OF OAKLEY
By:

Title:
71 B-16

EXHIBIT C TO THE RESOLUTION

ELIGIBLE FACILITIES AND FEES
Eligible facilities and fees that may be financed by a CFD formed by CSCDA through SCIP include all improvements and fees authorized under the Mello-Roos Act, including but not limited to the following:

Transportation Improvements
Eligible roadway improvements include, but are not limited to: acquisition of land and easements; roadway design; project management; bridge crossings and culverts; clearing, grubbing, and demolition; grading, soil import/export, paving (including slurry seal), and decorative/enhanced pavement concrete and/or pavers; joint trenches, underground utilities and undergrounding of existing utilities; dry utilities and appurtenances; curbs, gutters, sidewalks, bike trails (including onsite and off-site), enhanced fencing, and access ramps; street lights, signalization, and traffic signal control systems; bus turnouts; signs and striping; erosion control; median and parkway landscaping and irrigation; entry monumentation; bus shelters, bus and transit improvements including transfer stations and regional public transit improvements; masonry walls; traffic control and agency fees; and other improvements related thereto.

Eligible improvements for the roads listed herein also include any and all necessary underground potable and recycled water, sanitary sewer, and storm drainage system improvements.

Water System Improvements
Authorized facilities include any and all water facilities designed to meet the needs of development within the CFD. These facilities include, but may not be limited to: water storage, treatment and distribution facilities including waterlines and appurtenances, gate valves, pressure reducing stations, flow meters, fire hydrants, and other improvements related thereto such as site clearing, grading and paving; curbs and gutters; booster pump stations & power; stand-by generators; site lighting, drainage, sanitary sewer, and water service; landscaping and irrigation; access gates, and fencing; and striping and signage.

Recycled Water System Improvements
Authorized facilities include any and all recycled water system facilities designed to meet the needs of development within the CFD. These facilities include but may not be limited to: treatment and distribution facilities including pipelines and appurtenances, gate valves, flow meters, booster pump pressurization system, and other improvements related thereto - such as site clearing, grading and paving; curbs and gutters; booster pump stations; stand-by generators; site lighting, drainage, sanitary sewer, and water service; landscaping and irrigation; access gates, and fencing; and striping and signage.

Drainage System Improvements
Authorized facilities include all drainage and storm drain improvements designed to meet the needs of development within the CFD. These facilities include but may not be 72 B-17
limited to: excavation and grading, pipelines and appurtenances, outfalls and water quality measures, detention/retention basins, drainage pretreatment facilities, drainage ways/channels, pump stations, landscaping and irrigation; access roads, gates, and fencing; and striping and signage and other improvements related thereto.

Wastewater System Improvements
Authorized facilities include any and all wastewater facilities designed to meet the needs of development within the CFD. These facilities include, but may not be limited to, pipelines and all appurtenances thereto; manholes; tie-in to existing main lines; force mains; lift stations; upgrades to existing lift stations; odor-control facilities; and permitting related thereto; and related sewer system improvements.

Park, Parkway and Open Space Improvements
Authorized facilities include any and all improvements to parks, parkways and open space required for development within the CFD. These facilities include, but may not be limited to: grading, turf, shrubs and trees, landscaping irrigation, site lighting, drainage, sanitary sewer and water service, pedestrian and bicycle trails, protective fencing (including soundwalls), pedestrian/bicycle bridges, storm drain crossings, wetland mitigation, hawk mitigation for authorized facilities herein, access gates and fencing and related open space improvements. Authorized facilities include acquisition of any and all parkland as well as open space/bike trail/public access easements required for development within the CFD.

School and Educational Facilities
Authorized facilities include classroom renovation, updates to school safety and security systems, technology improvements, energy efficiency improvements, school modernization and retrofitting, and new classroom and school construction as required for development within the CFD.

Development Impact Fees
Authorized facilities include the direct funding of any of the above referenced facility types for which the Local Agency collects a development impact fee.

Other Incidental Expenses and Bond Issuance Costs
In addition to the above facilities, other incidental expenses as authorized by the MelloRoos Community Facilities Act of 1982, including, but not limited to, the cost of planning and designing the facilities (including the cost of environmental evaluation, remediation and mitigation); engineering and surveying; construction staking; utility relocation and demolition costs incidental to the construction of the public facilities; costs of project/construction management; costs (including the costs of legal services) associated with the formation of the CFD; issuance of bonds (if any); determination of the amount of taxes; collection of taxes; payment of taxes; costs of calculating and providing reimbursements from one-time special tax payments; or costs otherwise incurred in order to carry out the authorized purposes of the CFD; and any other expenses incidental to the formation and implementation of the CFD and to the 73 B-18
construction, completion, inspection and acquisition of the authorized facilities. 74 B-19

EXHIBIT D TO THE RESOLUTION

FORM OF INCREASED DEMANDS CERTIFICATE
To: California Statewide Communities Development Authority Re: Statewide Community Infrastructure Program – Community Facilities District for [Project]
The undersigned, a duly authorized officer of the CITY OF OAKLEY (the “Local Agency”) hereby certifies that the public capital improvements and development impact fees identified below are necessary to meet increased demands placed upon the Local Agency as a result of development within the proposed community facilities district for the [Project]:
[List improvements/fees here]

CITY OF OAKLEY
By:

Title:
75 C-1

EXHIBIT E TO THE RESOLUTION

CITY OF OAKLEY CONTACTS FOR SCIP PROGRAM
Primary Contact
Name: Jeri Tejeda
Title: Administrative Services Director
Mailing Address: 3231 Main Street, Oakley, CA 94561
Delivery Address (if different): Same
E-mail: [email protected]
Telephone: 925-625-7014
Secondary Contact
Name: Carolina Camacho
Title: Accounting Manager
Mailing Address: 3231 Main Street, Oakley, CA 94561
Delivery Address (if different): Same
E-mail: [email protected]
Telephone: 925-625-7001
76 CERTIFICATION OF RESOLUTION
I, the undersigned, the duly appointed and qualified City Clerk of the City of Oakley, do hereby certify that the foregoing Resolution No. ___________ was duly adopted at a regular meeting of the City Council of the City of Oakley duly and regularly held at the regular meeting place thereof on the _______ day of __________, 2023, of which meeting all of the members of said City Council had due notice and at which a majority thereof were present.

An agenda of said meeting was posted at least 72 hours before said meeting at _____________________, a location freely accessible to members of the public, and a brief description of said resolution appeared on said agenda.

Notice of public was published in East County Times at least 5 days prior to the hearing.

I have carefully compared the foregoing with the original minutes of said meeting on file and of record in my office, and the foregoing is a full, true and correct copy of the original resolution adopted at said meeting and entered in said minutes.

Said resolution has not been amended, modified or rescinded since the date of its adoption and the same is now in full force and effect.

Dated: _______________, 2023
________________________________
City Clerk of the City of Oakley
By:_____________________________
77 STAFF REPORT

City of Oakley | 3231 Main Street, Oakley, CA 94561
O (925) 625-7000 | F (925) 625-9859 | www.ci.oakley.ca.us DATE: October 24, 2023
TO: Joshua McMurray, City Manager
FROM: Ken Strelo, Planning Manager
SUBJECT: Grand Cypress Preserve Development
Agreements Master Amendment (DA 01-23)
Summary
This is a continued public hearing on an application by ACD-TI Oakley, LLC (“Applicant”) requesting approval of a Development Agreements Master Amendment (DA 01-23) that would apply to five separate Development Agreements to extend their terms from December 13, 2025 to December 13, 2045 (“Project”). The five existing Development Agreements apply to previously approved development projects made up of Planning Areas 1, 3, 4, and 6-H of the East Cypress Corridor Specific Plan. The development projects, commonly known as KT-KB Oakley LLC (Planning Area 1), Lesher Trust (Planning Area 1), Dal Porto South (Planning Area 3), Bethel Island LLC (Planning Area 4), and Pacific West Communities (Planning Area 6-H), are all part of a larger project known as “Grand Cypress Preserve”. All sites covered under the existing Development Agreements and applicable to the proposed Master Amendment are zoned SP-1 (East Cypress Corridor Specific Plan) District. The applicable sites are located in Planning Areas 1, 3, 4, and 6-H of the East Cypress Corridor Specific Plan generally located at the eastern end of Oakley north and south of East Cypress Road, Oakley, CA 94561. APNs:
020-140-048; 020-150-003; 032-050-003; 032-082-001; 032-082-005; 032-082-010; 032- 082-011; and 032-082-013.

Background

GENERAL PLAN
Specific Plan (SP) – The project sites are designated Specific Plan (SP) in the Oakley General Plan (Figure 2-2: Land Use Diagram). The General Plan was amended to add the SP land use designation and apply it to the East Cypress Corridor Specific Plan (“ECCSP”) through adoption of City Council Resolution 47-09 adopted on March 10, 2009.

ZONING
SP-1 (East Cypress Corridor Specific Plan) District – The ECCSP was adopted by Ordinance 10-09, resulting in the SP-1 District zoning classification for the entire Specific Plan area, on March 24, 2009.

Approved and
Forwarded to the
City Council
78 STAFF REPORT
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O (925) 625-7000 | F (925) 625-9859 | www.CI.Oakley.CA.US Project Description

ENTITLEMENT AND DEVELOPMENT AGREEMENT HISTORY
The Applicant has ownership of five separately entitled developments within the ECCSP that are all under their own respective development agreements with terms set to expire on December 13, 2025. These projects are identified by the owner as the “Grand Cypress Preserve” project, sometimes also referred to as the “Cypress Preserve” project. A summary of the projects with their tentative map entitlements and development agreements is listed below:
 KT KB Oakley LLC Subdivision 9311 (Planning Area 1)
o 5/8/2012: Vesting Tentative Map approved (City Council Resolution 45- 12)
o 9/12/2005: Development Agreement approved (Ordinance 25-05) o 5/22//2012: Development Agreement Amendment (Ordinance 03-12)  Lesher Trust Subdivision 9404 (Planning Area 1)
o 7/14/2015: Vesting Tentative Map approved (City Council Resolution 98-15)
o 11/10/2020: Amendment to Vesting Tentative Map approved (City Council Resolution 150-20)
o 9/26/2005: Development Agreement approved (Ordinance 25-05) o 1/10/2012: Development Agreement Amendment (Ordinance 25-11)  Dal Porto South Subdivision 9401 (Planning Area 3)
o 7/14/2015: Vesting Tentative Map approved (City Council Resolution 96-15)
o 8/11/2015: Development Agreement approved (Ordinance 10-15)  Bethel Island LLC Subdivision 9156 (Planning Area 4)
o 11/8/2011: Vesting Tentative Map approved (City Council Resolution 122-11)
o 11/10/2020: Amendment to Vesting Tentative Map approved (City Council Resolution 149-20)
o 1/10/2012: Development Agreement approved (Ordinance 26-11)  Pacific West Communities Minor Subdivision 11-976 (Planning Area 6-H) o 1/24/2012: Tentative Parcel Map approved (City Council Resolution 11- 12)
o 1/10/2012: Development Agreement approved (Ordinance 27-11) 79 STAFF REPORT
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MASTER AMENDMENT TO DEVELOPMENT AGREEMENTS
The proposed amendment document is officially titled, “Amendment to Certain Development Agreements By and Between City of Oakley and ACD-TI Oakley, LLC Relating to the Projects Comprising the ‘Cypress Preserve Project’ and Located in the East Cypress Corridor Specific Plan Area.” For the purposes of this request and simplifying its name, that document is referred to as the “Grand Cypress Preserve Development Agreements Master Amendment” or “Master Amendment.” The Master Amendment includes recitals that provide background and references to the original Development Agreements for all of the projects and two Development Agreement Amendments for KT KB Oakley LLC and Lesher Trust which received term extensions to match the December 13, 2025 expiration date created for the other three projects. The applicant originally requested an extension of the term to December 13, 2035 (10-year extension) for all of the Development Agreements.

Since the September 12, 2023 City Council continuation of the item, the proposed terms have been modified and the applicant is now requesting an extension of the term to December 13, 2045 (20-year extension).

As described in Part C of the Recitals in the proposed Development Agreement, the request is due to the “…current state of the economy and its negative effect on market orientation, interest rates, and housing demand, and in order to reduce the risk of development in light of such adverse economic conditions….” The language providing the extension is found under Part 2.1 “Amendments to Term” of the Agreement section of the proposed Development Agreement. The specific language is proposed as follows:

The date “December 13, 2025,” as set forth in Section 1.4 of each of the Lesher Agreement, the KT-KB Agreement, the PacWest Agreement, the Dal Porto Agreement, and the Bethel Agreement, is hereby deleted in its entirety and replaced with the date “December 13, 2045” and thereby extend the Term of each such agreement an additional twenty (20) years beyond December 13, 2025.

This Development Agreement Master Amendment also proposes a Part 2.3 titled, “Additional Clarification of East Cypress Corridor Specific Plan Environmental Impact Report (“EIR”) Mitigation Measures.” This section calls attention to three Mitigation Measures (“MM”) from the ECCSP EIR adopted on March 10, 2009 by City Council Resolution 46-09 (MMs 3.8-12, 3.13-4, and 3.13-16). These MMs all refer to the requirement for the Rock Slough Bridge to be constructed and installed before 20% (800 units) of the ECCSP is constructed. The proposed amendment language will serve to clarify to the developers of the Grand Cypress Preserve project that residential units in the existing Summer Lake South project and undeveloped Summer Lake North project are not counted toward the units that will prompt 80 STAFF REPORT
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O (925) 625-7000 | F (925) 625-9859 | www.CI.Oakley.CA.US implementation of these MMs. This clarification has been determined by the City Attorney through analysis of the ECCSP EIR and the “Agreement Between Contra Costa County and City of Oakley Relating to Transition of Municipal Services, Collection of Fees and Maintenance of Infrastructure Upon Annexation of the East Cypress Corridor Specific Plan Area” referred to as the City-County Transition Agreement. This clarification does not result in amending the referenced EIR MMs Previous Public Hearings
This project was originally scheduled for public hearing and consideration by the Planning Commission on July 18, 2023 where it was recommended for approval to the City Council. The City Council first considered the project on August 8, 2023.

Due to circumstances related to the underlying project, the item was continued to a date certain, September 12, 2023. Prior to the continuation, the Mayor announced that the City Council received two separate public comments on the item prior to the meeting (summarized in following paragraph) and allowed for any additional public comments of which there were none. On September 12, 2023, the item was continued to a date uncertain.

Prior to the original public hearings, Staff received one written comment from Contra Costa Water District (“CCWD”). That letter was also provided to the Planning Commission as well as the City Council. In summary, the letter brought attention to agreements between CCWD and the applicant as well as the importance of the levee for the canal undergrounding project. Staff responded to CCWD that the term extension would not have any negative effect on their standing agreements, and it may increase the likelihood the project, including the levee, remains feasible and is eventually developed.

PLANNING COMMISSION RECOMMENDATION
On October 17, 2023, the City of Oakley Planning Commission held a continued public hearing on the proposed project in order to make a recommendation to the City Council. Since the City Council continued the item to a date uncertain, it was re-noticed for the October 17, 2023 Planning Commission meeting. Upon conclusion of the public hearing, the Planning Commission adopted Planning Commission Resolution No. 13-23 recommending the City Council adopt an ordinance approving the project.

Analysis
The Development Agreements Master Amendment is consistent with the objectives, policies, general land uses and programs in the ECCSP. It is also compatible with the uses authorized in, and the regulations prescribed for, the ECCSP, and is 81 STAFF REPORT
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O (925) 625-7000 | F (925) 625-9859 | www.CI.Oakley.CA.US designed in compliance with the approved development plans in that it does not result in any physical changes to any of the approved entitlements for any of the applicable Tentative Maps.

The Master Amendment is in conformity with public convenience, general welfare and good land use practice and will not be detrimental to the health, safety and general welfare in that the development in the ECCSP is responsible for much of the infrastructure improvements or cost-sharing for those improvements in and around the area that will benefit future residents and existing residents of Summer Lake South and areas in unincorporated Contra Costa County, such as along Dutch Slough Road and Sandmound Boulevard and on Bethel Island, and the term extension will increase the likelihood these projects are developed, and as a result, that infrastructure completed. The Master Amendment will not adversely affect the development of the properties in that the term extension will increase the chances they are able to be developed in the future.

Findings
Draft findings can be found in the proposed resolution.

Consistency with the Oakley Strategic Plan 27+
Approval of this application would be consistent with the Oakley Strategic Plan 27+ Community and Economic Development Goal by serving to preserve existing entitlements of the ECCSP which will help to implement the objective to “Plan and develop Cypress Corridor holistically with improvements and commerce to service new development to ease downtown traffic.” It will also serve to implement the Community Health and Safety Goal. Future development of these properties and the cooperation by the developer to be involved in project-related fair share agreements ensure crucial infrastructure such as improvements to East Cypress Road can be completed in a desirable timeframe. This type of improvement will result in a full right of way width with multi-modal travel design and enhanced pedestrian safety.

Fiscal Impact
The approval of these entitlements will not have an impact on the General Fund. This is a developer funded account. All Staff time and City of Oakley generated materials are charged to the developer account funded by the developer. 82 STAFF REPORT
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O (925) 625-7000 | F (925) 625-9859 | www.CI.Oakley.CA.US Staff Recommendation
Staff recommends the City Council waive the first reading and introduce the proposed ordinance approving the project titled, Grand Cypress Preserve Development Agreements Master Amendment (DA 01-23).

Attachments

1. Vicinity Map

2. Notice of Public Hearing

3. Planning Commission Resolution No 13-23

4. Grand Cypress Preserve Development Agreements Master Amendment

5. Proposed Ordinance
83 Vicinity Map
Grand Cypress Preserve Development Agreements Master Amendment (DA 01-23) APNs: 020-140-048; 020-150-003; 032-050-003; 032-082-001; 032-082-005; 032-082-010; 032-082-011; and 032-082-013 Bethel Island Rd.

E. Cypress Rd.
84 NOTICE OF PUBLIC HEARING
Notice is hereby given that on October 24, 2023 at 6:30 p.m., or as soon thereafter as the matter may be heard, the City Council of the City of Oakley will hold a Public Hearing at the Council Chambers located at 3231 Main Street, Oakley, CA 94561 for the purposes of considering an application as described below:

Project Name: Grand Cypress Preserve Development Agreements Master Amendment (DA 01- 23).

Project Location: Planning Areas 1, 3, 4, and 6-H of the East Cypress Corridor Specific Plan generally located at the eastern end of Oakley north and south of East Cypress Road, Oakley, CA 94561. APNs: 020-140-048; 020-150-003; 032-050-003; 032-082-001; 032-082-005; 032-082-010; 032-082-011; and 032-082-013.

Applicant: ACD-TI Oakley, LLC, 11611 San Vicente Blvd. Ste. #610, Los Angeles, CA 90049.

Attn: Andrew Han; [email protected]
Request: This is a continued public hearing on a request for approval of a Development Agreements Master Amendment (DA 01-23) that would apply to five separate Development Agreements to extend their terms from December 13, 2025 to December 13, 2045. The five existing Development Agreements apply to previously approved development projects made up of Planning Areas 1, 3, 4, and 6-H of the East Cypress Corridor Specific Plan. The development projects, commonly known as KT-KB Oakley LLC (Planning Area 1), Lesher Trust (Planning Area 1), Dal Porto South (Planning Area 3), Bethel Island LLC (Planning Area 4), and Pacific West Communities (Planning Area 6-H), are all part of a larger project known as “Grand Cypress Preserve”. All sites covered under the existing Development Agreements and applicable to the proposed Master Amendment are zoned SP-1 (East Cypress Corridor Specific Plan) District.

How to Review: The Staff Report and its attachments will be available for public review, on or before October 18, 2023 at City Hall, 3231 Main Street, Oakley, CA 94561 or online at www.ci.oakley.ca.us/agendas-minutes-videos-archive/ by navigating to the October 24, 2023 City Council agenda and clicking the project title link. (Note: City Hall is closed on the 1st and 3rd Fridays of each month). Interested persons are invited to submit written comments prior to and may testify at the public hearing. Written comments may be submitted to Ken Strelo, Planning Manager at the City of Oakley, 3231 Main Street, Oakley, CA 94561 or by email to [email protected].

NOTICE IS ALSO GIVEN pursuant to Government Code Section 65009(b) that, if this matter is subsequently challenged in Court by you or others, you may be limited to raising only those issues you or someone else has raised at a Public Hearing described in this notice or in written correspondence delivered to the City of Oakley City Clerk at, or prior to, the Public Hearing. 85 86
87 88

RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:

City Clerk
City of Oakley
3231 Main Street
Oakley, CA 94561
_____________________________________________________________________ (Space Above This Line Reserved For Recorder’s Use)
This instrument is exempt from recording fees pursuant to Government Code section 27383.

Documentary Transfer Tax is $0.00 (exempt per Revenue & Taxation Code section 11922, Transfer to Municipality).

AMENDMENT TO CERTAIN

DEVELOPMENT AGREEMENTS BY AND BETWEEN

CITY OF OAKLEY AND ACD-TI OAKLEY, LLC

RELATING TO THE PROJECTS COMPRISING THE
“CYPRESS PRESERVE PROJECT” AND LOCATED IN THE

EAST CYPRESS CORRIDOR SPECIFIC PLAN AREA
89 2

FIRST AMENDMENT TO

DEVELOPMENT AGREEMENTS
This FIRST AMENDMENT TO DEVELOPMENT AGREEMENTS ("First Amendment”) is entered into this ____ day of ________, 2023, by and between the City of Oakley, a California municipal corporation ("City"), and ACD-TI OAKLEY, LLC, a Delaware limited liability company (“Developer”), pursuant to California Government Code (“Government Code”) sections 65864 et seq. Developer and City are each sometimes individually referred to herein as a “Party” and collectively referred to herein as “Parties.”

RECITALS
This First Amendment is entered into upon the basis of the following facts, findings, understandings and intentions of the parties:

A. As of the Effective Date, Developer is the owner in fee of the following properties situated in the City of Oakley, California, as more particularly described as follows:

1. That approximately 357 acre real property legally described on Exhibit A-1 attached hereto, which real property is part of the area designated as “Planning Area 1” by the City’s East Cypress Corridor Specific Plan (“Specific Plan”) and is sometimes referred to herein as the “Lesher Property”;

2. That approximately 334.11 acre real property legally described on Exhibit A-2 attached hereto, which real property is part of the area designated as “Planning Area 1” by the Specific Plan and is sometimes referred to herein as the “KT-KB Property”;

3. That approximately 350.94 acre real property legally described on Exhibit A-3 attached hereto, which real property comprises the entirety of the area designated as “Planning Area 4” by the Specific Plan and is sometimes referred to herein as the “PA4 Property”;

4. That approximately 16.4 acre real property legally described on Exhibit A-4 attached hereto, which real property comprises the entirety of the area designated as “Planning Area 6-H” by the Specific Plan and is sometimes referred to herein as the “PA6- H Property”; and

5. That approximately 182.5 acre real property legally described on Exhibit A-5 attached hereto, which real property comprises the entirety of the area designated as “Planning Area 3” of the Specific Plan and is sometimes referred to herein as the “PA3 Property”. The Lesher Property, the KT-KB Property, the PA4 Property, the PA6-H Property and the PA3 Property are referred to herein collectively as the “Cypress Preserve Properties”.
90 3
B As of the Effective Date, Developer, as successor in interest to the original developer party thereto, and the City are parties to the following development agreements with respect to the Cypress Preserve Properties:

1. With respect to the Lesher Property, that certain Development Agreement By And Between The City of Oakley And The Lesher Trust Relating To The Project Known As “Lesher Trust Property” with the City effective October 12, 2005 (Recorder's Document No. DOC-2005-0388735-00) ("Original Lesher Agreement"), which agreement was subsequently amended by that certain First Amended Development Agreement By And Between The City of Oakley And The Lesher Trust Relating To The Project Known As “Lesher Trust Property” dated January 10, 2012 (Recorder’s Document No. DOC-2012- 0102367-00) (“Lesher Agreement”). By its express terms, the Lesher Agreement superseded the Original Lesher Agreement in its entirety;

2. With respect to the KT-KB Property, that certain Development Agreement By And Between The City of Oakley And KT-KB Oakley LLC Relating To The Project Known As “Lesher/Dal Porto North, Planning Area 1” dated May 22, 2012 (Recorder’s Document No. DOC-2012-0160207-00) (“KT-KB Agreement”);

3. With respect to the PA4 Property, that certain Development Agreement By And Between The City of Oakley And Bethel Island LLC Relating To The Project Known As “Bethel Island, LLC, Planning Area 4” dated January 26, 2012 (Recorder’s Document No.

DOC-2012-0029930-00) (“Bethel Agreement”);

4. With respect to the PA6-H Property, that certain Development Agreement By And Between The City of Oakley And Pacific West Communities, Inc. Relating To The Project Known As “Planning Area 6-H” dated January 24, 2012 (Recorder’s Document No. DOC-2012-0029931-00) (“PacWest Agreement”); and

5. With respect to the PA3 Property, that certain Development Agreement By And Between The City of Oakley And ACD-TI Oakley, LLC Relating To The Area Known As “Dal Porto South, Planning Area 3” dated January 4, 2016 (Recorder’s Document No.

DOC-2016-0007999-00) (“Dal Porto Agreement”). The Lesher Agreement, the KT-KB Agreement, the Bethel Agreement, the PacWest Agreement and the Dal Porto Agreement are referred to herein collectively as the “Development Agreements”.

C. Pursuant to Section 1.4 of each of the Development Agreements, the Term of each of the Development Agreements (“Term”) is scheduled to expire on December 13, 2025. Given the current state of the economy and its negative effect on market orientation, interest rates, and housing demand, and in order to reduce the risk of development in light of such adverse economic conditions, the Parties now desire to extend the Term of each of the Development Agreements as provided herein.

D. The Planning Commission, after duly noticed public hearing, recommended approval of this First Amendment on pursuant to . The City Council, after duly noticed public hearings, adopted approving this First Amendment and authorizing its execution on 91 4
, 2023. Ordinance No. became effective on
, 2023 (“Enacting Ordinance”).

AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and promises contained herein and other valuable consideration and pursuant to Section 4.1 of the Development Agreement, the parties hereto agree to the following:

1. Defined Terms. All capitalized terms used herein shall have the meanings given in the Development Agreement, except as expressly otherwise defined in this First Amendment.

2. Enumeration of Specific Amendments. The Development Agreement is hereby revised to incorporate the following amendments.

2.1 Amendments to Term. The date “December 13, 2025,” as set forth in Section 1.4 of each of the Lesher Agreement, the KT-KB Agreement, the PacWest Agreement, the Dal Porto Agreement, and the Bethel Agreement, is hereby deleted in its entirety and replaced with the date “December 13, 2045” and thereby extend the Term of each such agreement an additional twenty (20) years beyond December 13, 2025.

2.2 Life of Subsequent Approvals. Section 2.1 of the Lesher Agreement is hereby amended to add new subsection (j) thereto, Section 2.1 of the Bethel Agreement is hereby amended to add new subsection (h) thereto, Section 3.1 of the KT-KB Agreement is hereby amended to add new subsection (h) thereto, and Section 3.1 of the PacWest Agreement is hereby amended to add new subsection (i) thereto, and subsection (h) of Section 3.1 of the Dal Porto Agreement is hereby deleted in its entirety and said Section 3.1 is hereby amended to add new subsection (h), all of which new subsections are as set forth below:

Life of Subsequent Approvals. The term of any Subsequent Approval shall automatically be extended for the longer of the duration of the Term of this Agreement (including any extensions) or the term otherwise applicable to such Subsequent Approval. The Term of this Agreement and the term of any subdivision map or other Subsequent Approval shall be tolled and extended during the period of time during which (i) a development moratorium (including, but not limited to, a water or sewer moratorium or water and sewer moratorium), or (ii) the actions or inactions of other public agencies that regulate land use, development, or the provision of services to the land, prevents, prohibits, or delays development of the Property, or (iii) a lawsuit involving any such development approvals or permits is pending.

2.3 Additional Clarification of East Cypress Corridor Specific Plan Environmental Impact Report (“EIR”) Mitigation Measures. The EIR adopted by the City Council (City Council Resolution 46-09) on March 10, 2009 for the East Cypress 92 5
Corridor Specific Plan includes Mitigation Measures that relate to the timing of construction of the Bethel Island Bridge that is planned to cross over Rock Slough and continue south to the intersection with Delta Road. Construction of the bridge is required by Mitigation Measures 3.8-12, 3.13-4, and 3.13-16. Details of those MMs require the first two lanes of the bridge be constructed before 20% of the project (800 units) is constructed. This section is to clarify that based on the language in the Agreement Between Contra Costa County and City of Oakley Relating to Transition of Municipal Services, Collection of Fees and Maintenance of Infrastructure Upon Annexation of the East Cypress Corridor Specific Plan Area (City-County Transition Agreement) and the ECCSP EIR, the Summer Lake South project (built out) and Summer Lake North project residential units are not counted toward the 800 units to prompt implementation of these mitigation measures.

3. Continued Effectiveness. Except as expressly modified by this First Amendment, all of the Development Agreements remain unmodified and in full force and effect in accordance with their terms, and the Parties mutually acknowledge and agree that the Parties are in full compliance with the provisions thereof.

4. Effective Date and Recordation. The "Effective Date" of this First Amendment shall be the effective date of the Enacting Ordinance. The Parties shall execute this Frist Amendment promptly following the Effective Date, whereupon the City shall record this First Amendment in accordance with Government Code section 65868.5. In the event City shall fail for any reason to timely record this First Amendment as set forth herein, Developer shall have the right to record this First Amendment in the official records of Contra Costa County.

5. Exhibits. The following exhibits are attached to this Third Amendment and are hereby incorporated herein by this reference for all purposes as if set forth herein in full:

Exhibit A-1 Legal Description of Lesher Property
Exhibit A-2 Legal Description of the KT-KB Property
Exhibit A-3 Legal Description of the PA4 Property
Exhibit A-4 Legal Description of the PA6-H Property
Exhibit A-5 Legal Description of the PA3 Property

6. Construction. This First Amendment has been reviewed and revised by legal counsel for both City and Developer, and no presumption or rule that ambiguities be construed against the drafting Party shall apply to the interpretation or enforcement of this First Amendment. The Recitals contained in this First Amendment, and the introductory paragraph preceding the Recitals, are hereby incorporated into this First Amendment as if fully set forth herein.

7. Severability. If any portion, part, article, section, subsection, subdivision, sentence, phrase, word, term, provision, covenant, or condition of this First Amendment 93 6
(each a “Portion”) or the application of any Portion of this First Amendment to a particular situation is held by a court or other authority of competent jurisdiction to be invalid, void or unenforceable, such Portion shall be considered severed from this First Amendment and the remainder of this First Amendment, or the application of this First Amendment to other situations, shall continue in full force and effect unless amended or modified by the mutual consent of the Parties.

8. Cooperation in the Event of Challenge. In the event of any legal or equitable acts, action or other proceeding instituted by a third-party, other governmental entities or officials challenging the validity of this First Amendment or any Portion thereof, the Parties hereby agree to cooperate in defending said action or proceeding.

9. Counterparts. This First Amendment may be executed in two duplicate counterparts, each of which is deemed to be an original. [This space intentionally blank]
94 7
IN WITNESS WHEREOF, City and Developer have executed this First Amendment as of the date first written above.
"CITY"
City of Oakley, a municipal corporation
By:

Joshua McMurray, City Manager
APPROVED AS TO FORM:

By:

Derek P. Cole, City Attorney
“DEVELOPER”

ACD-TI OAKLEY, LLC,
a Delaware limited liability company
By: TI Capital Management, LLC, a
Delaware limited liability company, its Sole
Member
By: _____________________________
Name: Ziad Ghandour
Its: Sole Member
[signature must be notarized]
95 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.

STATE OF CALIFORNIA )

COUNTY OF )
On _________________________ before me
_________________________________________ (insert name and title of the officer) personally appeared
______________________________________________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

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

WITNESS my hand and official seal.

Signature ______________________________ (Seal)
96 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.

STATE OF CALIFORNIA )

COUNTY OF )
On _________________________ before me
_________________________________________ (insert name and title of the officer) personally appeared
______________________________________________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

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

WITNESS my hand and official seal.

Signature ______________________________ (Seal)
97 98
EXHIBIT A-1

LEGAL DESCRIPTION OF THE LESHER PROPERTY
The land referred to is situated in the County of Contra Costa, City of Oakley, State of California, and is described as follows:

PARCEL ONE:

A portion of the South 1/2 of Section 21, and a portion of the North 1/2 of Section 28, Township 2 North, Range 3 East, Mount Diablo Base and Meridian, as described in the Gift Deed from Laura Mae Dutra to her daughter, Hetty Louise Wilkie, filed August 27, 1976, in Book 7995 of Official Records, Page 158, Contra Costa County Records, being more particularly described as follows:

Commencing at the Southwest corner of Section 21; Township 2 North, Range 3 East, Mount Diablo Base and Meridian; thence leaving said point of commencement North 89° 54’ 46” East 30.00 feet (North 89° 33’ 30” East 30.00 feet) to the true point of beginning, said point of beginning being a point on the Eastern line of Jersey Island Road, a 60 foot wide county road; thence leaving said point of beginning Northerly along said Eastern line, said Eastern line being common with the Western line of that parcel of land described in the deed from Frank R. Shellenberger and Idalyne J.

Shellenberger to Frank J. Dutra and Laura Mae Dutra, recorded September 24, 1958, in Book 3233 of Official Records, Page 587, Contra Costa County Records, North 0° 06’ 24” East 980.10 feet (North 0° 32’ West 982.77 feet) to the Southwestern corner of that parcel of land described in the deed from Frank R. Shellenberger and ldalyne J.

Shellenberger to Anthony J. Dal Porto and Edith M. Dal Porto, recorded April 3, 1952, in Book 1914 of Official Records, Page 212, Contra Costa County Records; thence leaving said common corner, Easterly along the Southern line of said Dal Porto Parcel (1914 OR 212) North 89° 18’ 47’ East 3975.97 feet (North 89° 18’ East 3975.97 feet) to the Southeastern corner of said Dal Porto Parcel (1914 OR 212); thence leaving said Southern line and said Southeastern corner Southerly along the Eastern line of the aforesaid Dutra parcel (3233 OR 587) the following courses and distances: South 5° 45’ 47” West 1.97 feet (South 5° 40’ West 1.97 feet); thence South 26° 09’ 02” East 1181.27 feet (South 25° 58’ 30” East 1182.4) to a point on the Northerly line of that parcel of land described in the deed from the Bank of America National Trust and Savings Association to Angelo Gill, et ux., recorded February 24, 1942, in Book 725 of Official Records, Page 82, Contra Costa County Records; thence leaving said Eastern line Westerly along the Northern lines of said Gill Parcel (725 OR 82) the following courses and distances: North 87° 19’ 56” West 50.90 feet (North 87° 21’ West 50.9 feet); thence North 89° 48’ 56” West 775.27 feet (North 89° 50’ West 775.27 feet) to the Northwestern corner of said Gill Parcel (725 OR 82), said Northwestern corner being common with the Northeastern corner of that parcel of land described in the Deed to Frank J. Dutra and Laura Mae Dutra, his wife, recorded in Book 3338 of Official Records, Page 62, Contra Costa County Records; thence leaving said common corner Westerly along the Northern line of said Dutra Parcel (3338 OR 62), said Northern line being common with the Southern line of said Dutra Parcel (3233 OR 587) South 89° 18’ 99 47” West 3671.25 feet (South 89° 18’ West 3657.9 feet) to the Northwestern corner of the aforesaid Dutra Parcel (3338 OR 62), said Northwestern corner being common with the Southeastern corner of the aforesaid Dutra Parcel (3233 OR 587); thence leaving said common corner Northerly along the aforesaid Eastern line of Jersey Island Road, a 60 foot wide County Road, North 0° 38’ 45” West 73.70 feet (North 0° 21 West 73.7 feet) to the point of beginning.

EXCEPTING THEREFROM: The oil, gas, minerals and other hydrocarbons as reserved in the Deed from Bank of America National Trust and Savings Association to Frank R.

Shellenberger, dated May 24, 1943, recorded June 18, 1943, in Book 734 of Official Records, Page 165, Contra Costa County Records.

Being APN 032-082-005
PARCEL TWO:

INTENTIONALLY DELETED
PARCEL THREE:

A portion of the North 1/2 of Section 28, Township 2 North, Range 3 East, Mount Diablo Base and Meridian, as described in the Gift Deed from Laura Mae Dutra to her daughter Hetty Louise Wilkie, filed August 27, 1976, in Book 7995 of Official Records, Page 158, Contra Costa County Records, being more particularly described as follows:

Commencing at the corner common to Sections 20, 21, 28 and 29, of Township 2 North, Range 3 East, Mount Diablo Base and Meridian; thence leaving said point of commencement North 89° 54’ 46” East, 30.00 feet (North 89° 33’ 30” East 30.00 feet) to a point on the Eastern line of Jersey Island Road, a 60 foot wide county road; thence Southerly along said Eastern line, said Eastern line being common with the Western line of that parcel of land described in the deed from Frank R. Shellenberger and ldalyne J. Shellenberger to Frank J. Dutra and Laura Mae Dutra, recorded September 24, 1958, in Book 3233 of Official Records, Page 587, Contra Costa County Records, South 0° 38’ 45” East 73.7 feet (South 0° 21’ East 73.7 feet) to the true point of beginning; said point of beginning being common with the Southwestern corner of said Dutra Parcel (3233 OR 587) and said Southwestern corner being common with the Northwestern corner of parcel of land described in the deed to Frank J. Dutra and Laura Mae Dutra, his wife, recorded in Book 3338 of Official Records, Page 62, Contra Costa County Records; thence leaving said point of beginning and said common corner Easterly along the Northern line of the said Dutra Parcel (3338 OR 62), said Northern line being common with the Southern line of said Dutra Parcel (3233 OR 587) North 89° 18’ 47” East 3671.25 feet (North 89° 19’ East 3657.9) to the Northeastern corner of the aforesaid Dutra Parcel (3338 OR 62), said Northeastern corner being common with the Northwestern corner of that parcel of land described in the deed from the Bank of America National Trust and Savings Association to Angelo Gill, et ux, recorded February 24, 1942, in Book 725 of Official Records, at Page 82, Contra Costa County Records; thence Southerly along the Western lines of said Gill Parcel (725 OR 82) the 100
following courses and distances: South 8° 33’ 56” East 540.86 feet (South 8° 35’ West 540.86 feet); thence South 26° 06’ 56” East 418.46 feet (South 26° 08’ East 418.46 feet) to the Southwestern corner of said Gill Parcel; thence leaving said Southwestern corner Easterly along the Southern line of said Gill Parcel (725 OR 82) North 89° 21’ 04” East 1157.89 feet (North 89° 20’ East 1157.89 feet) to the Southeastern corner of said Gill Parcel (725 OR 82), said Southeastern corner being a point on the Western line of Bethel Island Road a 60 foot wide county road; thence leaving said Southeastern corner Southerly along said Western line South 0° 30’ 56” East 1557.20 feet (South 0° 32’ East 1557.2 feet); thence along a tangent curve, concave to the Northwest and having a radius of 50.00 feet through a central angle of 89° 38’ 56” an arc distance of 78.23 feet (central angle of 89° 40’ an arc distance of 78.25 feet) to a point of the Northern line of Cypress Road, a 60 foot wide county road; thence Westerly along said Northern line South 89° 08’ 00” West 4892.11 feet (South 89° 08’ West 4892.5 feet) to a point on the Northeastern line of the ten foot wide strip of land described in the deed from the Bank of America National Trust and Savings Association, to Earl M. Harrington, et ux, dated March 21, 1940 and recorded April 27, 1940, in Book 534 of Official Records,

Northwesterly along said Northeastern line North 45° 25’ 00” West 196.23 feet (North 45° 25’ West 195.4 feet) a point on the aforesaid Eastern line of Jersey Island Road, a 60 foot wide county road; thence leaving said Northeastern line Northerly along said Eastern line North 0° 38’ 45” West 2397.42 (North 0° 21’ West 2396.9 feet) to the point of beginning.

EXCEPTING THEREFROM: The oil gas, minerals and other hydrocarbons as reserved in the deed from Bank of America National Trust and Savings Association, a National Banking Association, to Charles E. Peterson, et at., dated June 17, 1943, recorded February 21, 1944, in Book 773 of Official Records, Page 26, Contra Costa County Records. Said Reservation also provides for all easements and rights necessary or convenient for production, storage and transportation thereof and exploration and testing of said property.

FURTHER EXCEPTING THEREFROM, that portion described in that certain Offer of Dedication – Road Purposes (fee title) to Contra Costa County, a political subdivision of the State of California, and its successors or assigns, recorded December 30, 2005, as Instrument No. 2005- 0499229, Contra Costa County Records.

Being APN 032-082-013
101
EXHIBIT A-2

LEGAL DESCRIPTION OF THE KT-KB PROPERTY
The land referred to is situated in the County of Contra Costa, City of Oakley, State of California, and is described as follows:

PARCEL ONE:

Portion of the South 1/2 of Section 21, Township 2 North, Range 3 East, Mount Diablo Base and Meridian, described as follows:

Commencing at the Southwest corner of said Section 21; thence from said point of commencement North 89° 33’ 30” East, 30 feet to the East line of a County Road; thence North 0° 32’ West along said East line, 982.77 feet to the actual point of beginning of the herein described parcel of land; thence from said point of beginning North 0° 32’ West, continuing along said East line, 814.53 feet to the South line of the parcel of land described in the Deed to Anthony J. Dal Porto, et ux, recorded April 3, 1941, Book 576 Official Records, Page 350; thence along said South line South 89° 21’ East, 519.6 feet and South 85° 30’ East, 1616.9 feet; thence leaving said South line South 1° 33’ East, 6 feet to the center of a drainage ditch; thence South 85° 41’ 30” East, 1668.6 feet along said center line to a point on the Southwest line of said Dal Porto parcel; thence South 40° 34’ East along said Southwest line, 277.8 feet to an iron pipe at the Southeast corner of said Dal Porto parcel; thence South 40° 34’ East, 49.5 feet to the center line of a drainage canal; thence South 5° 40’ West along said center line, 254.43 feet; thence South 89° 18’ West, 3975.97 feet to the point of beginning.

EXCEPTING FROM PARCEL ONE: The oil, gas, minerals and other hydrocarbons as reserved in the Deed from Bank of America National Trust and Savings Association, recorded June 18, 1943, Book 734 Official Records, Page 165.

PARCEL TWO:

Portion of Section 21, Township 2 North, Range 3 East, Mount Diablo Base and Meridian, described as follows:

Beginning at a point on the Southerly bank of Dutch Slough which bears South 83° 26’ West, 288.9 feet from the most westerly corner of the tract of land described in the Deed to Bolusiano Perez, et ux, recorded October 10, 1940, Book 559 Official Records, Page 259; thence from said point of beginning South 44° East, 436.5 feet to a point on the Westerly bank of a drainage canal; thence along said bank South 51° 43’ East, 1547.2 feet; South 10° 3’ East, 1340 feet and South 5° 48’ West, 1197.8 feet to a black pipe; thence North 40° 34’ West, 959 feet to a black pipe; thence North 85° 43’ West, 1237.4 feet to a black pipe; thence South 1° 33’ East, 478.7 feet to a black pipe; thence North 85° 30’ West, 1616.9 feet to a black pipe; thence North 89° 21’ West, 539.13 feet to a black pipe on the East line of the County Road; thence along the East line of the County Road North 0° 25’ West, 1211.1 feet; North 0° 10’ West, 622.6 feet and North 0° 15’ East, 561.1 feet to the Southwest corner of the tract of land described in the Deed to 102
Herbert S. Miller, et al, recorded December 31, 1931, Book 295 Official Records, Page 101; thence along the South line of said tract South 89° 45’ East, 569 feet to the Southeast corner thereof; thence North 0° 15’ East along the East line of said tract and the extension Northerly thereof, 933.1 feet to the Southerly bank of Dutch Slough; thence along said Southerly bank South 88° 5’ East, 356.7 feet; North 82° 26’ East, 354.6 feet; South 89° 23’ East, 497.2 feet and South 85° 32’ East, 597.1 feet to the point of beginning.

EXCEPTING FROM PARCEL TWO:

1. Reservations for oil, gas and other hydrocarbons and minerals and certain appurtenant rights, as provided for in the Deed from Bank of America National Trust and Savings Association, recorded April 3, 1941, Book 576 Official Records, page 350.

2. The parcel of land described in the Deed to Claude L. Sump, recorded April 15, 1944, Book 773 Official Records, Page 285 (not excepting however, the right of way reserved in said Deed (773 OR 285).

3. The parcel of land described in the Deed to Hylas B. Baldwin, et ux, recorded April 26, 1944, Book 774 Official Records, Page 363, not excepting however, the right of way reserved in said Deed (774 OR 363).

4. The parcel of land described in the Deed to J. B. Baldwin, et ux, recorded May 8, 1944, Book 606 Official Records Page 211, not excepting however, the right of way reserved in said Deed (606 OR 211).

5. The tract of land designated on the Map of Dutch Slough Subdivision filed April 12, 1944, Map Book 27, Page 21, Contra Costa County Records.

PARCEL THREE:

A right of way (not to be exclusive) created in reference to the premises in the deed to Claude L. Sump, et ux, recorded April 15,1944, Book 773, Page 285 of Official Records; in the deed to Hylas B. Baldwin, et ux, recorded April 26,1944, Book 774, Page 363 of Official Records and in the deed to J.B. Baldwin, et ux, recorded May 8,1944, Book 606,

and animals, for water, gas, oil and sewer pipe lines, and for telephone, electric light and power lines, together with the necessary poles or conduits to carry said lines over the following described strips of land:
1) A strip of land bounded as follows: On the north by the south bank of Dutch Slough; on the east by the west line of the tract of land designated on the map of Dutch Slough Subdivision, filed April 12,1944, Map Book 27, Page 21, Contra Costa County Records; on the south by the south line of the existing road along the top of the levee and on the west by the parcel of land described in the deed to Anthony Dal Porto, et ux, recorded April 3,1941, Book 576, Page 350 of Official Records.
103
2) The strip of land described as Parcel One in the deed to Anthony J. Dal Porto, et ux, recorded April 12, 1944, Book 606, Page 108 of Official Records.

PARCEL FOUR:

Portion of the Northeast 1/4 of the Southwest 1/4 and portion of the Northwest 1/4 of the Southeast 1/4 of Section 21, Township 2 North, Range 3 East, Mount Diablo Base and Meridian, described as follows: Commencing at the Southeast corner of the parcel of land described in the Deed to Anthony J. Dal Porto, et ux, recorded April 3, 1941, Book 576 Official Records, Page 350; thence from said point of commencement North 40° 34’ West along the South line of said Dal Porto parcel, 576 Official Records, Page 350, 177.8 feet to the actual point of beginning of the herein described parcel of land; thence from said point of beginning and continuing along said South line North 40° 34’ West, 581.2 feet; North 85° 43’ West, 1237.4 feet and South 1° 33’ East, 478.7 feet; thence leaving said South line and continuing South 1° 33’ East, 6 feet to the center line of a drainage ditch; thence South 85° 41’ 30” East, along said center line, 1668.6 feet to the point of beginning.

EXCEPTING FROM PARCEL FOUR: Rights saved, excepted and reserved in the Deed from Bank of America National Trust and Savings Association, recorded June 25, 1943, Book 735 Official Records, Page 282, as follows:
“All oil, gas and other hydrocarbons and minerals now or at any time hereafter situate therein and thereunder, together with all easement and rights necessary or convenient for the production, storage and transportation thereof and the exploration and testing of the said real property and also the right to drill for, produce and use water from the said real property in connection with its drilling or mining operations thereon.” EXCEPTING FROM PARCELS ONE, TWO AND FOUR ABOVE:

Rights granted in that certain Corrective Quitclaim Deed, from KT-KB Oakley LLC, a California limited liability company to Robert A. Dal Porto, Sr. and Donald J. Dal Porto dated July 18, 2005, Series No. 2005-0267032, Contra Costa County Records.

APN: 032-082-001
104
EXHIBIT A-3
LEGAL DESCRIPTION OF THE PA4 PROPERTY
The land referred to is situated in the County of Contra Costa, City of Oakley, State of California, and is described as follows:

PARCEL ONE
Portion of Section 33 and portion of Section 34, Township 2 North, Range 3 East, Mount Diablo Base and Meridian, described as follows:

Beginning at the corner common to Sections 27, 28, 33 and 34, and running thence along the line common to Sections 27 and 34, South 89° 43' East, 814.2 feet to an iron pipe; thence South 0° 23' 30" West, 2560.2 feet to an iron post; thence South 0° 23' 30" West, 75.6 feet to a point on the East and West midsection line of said Section 34; thence along said midsection line South 89° 54' 15" West, 640.4 feet to a point on the Northeasterly line of the right of way of the Contra Costa Canal; thence along said Northeasterly line North 44° 35' West, 3724.9 feet to a point on the line common to Sections 28 and 33; thence along said common line South 89° 43' East, 2458.9 feet to the point of beginning.

Excepting from Parcel One:
"Said Grantors present 2/7ths interest in and to their mineral rights in said real property", as reserved in the Deed from Mario A. Bertone and Mary M. Bertone, Trustees of the Mario and Mary Bertone Family Trust dated June 12, 1991, recorded October 10, 1997, Series No. 97- 193264, Contra Costa County Records.

1. That portion thereof described in the Deed to Contra Costa Water District, recorded March 26, 2010, Series No. 2010-59168, Official Records.

2. Any portion of said land which is or ever was tide or submerged lands.

APN: 020-140-048

PARCEL TWO
Portion of the North 1/2 of Section 34, Township 2 North, Range 3 East, Mount Diablo Base and Meridian, described as follows:

Beginning at an iron pipe on the line common to Sections 27 and 34, which pipe bears South 89° 43' East, 814.2 feet from the corner common to Sections 27, 28, 33 and 34, and running thence along said common line South 89° 43' East, 4184.1 feet to an iron pipe; thence continuing along said common line South 89° 43' East, 281.7 feet to the corner common to Sections 26, 27, 34 and 35; thence along the line common to Sections 34 and 35 South 1° 01' West, 2606.6 feet to the East quarter corner of said 105
Section 34; thence along the East and West midsection line of said Section 34 South 89° 54' 15" West, 4437.6 feet; thence North 0° 23' 30" East, 75.6 feet to an iron post; thence North 0° 23' 30" East, 2560.2 feet to the point of beginning.

Excepting from Parcel Two:

1. That portion of Parcel Two reserved in the Deed from Title Insurance and Trust Company (Trustee), recorded March 21, 1974, Book 7182, Page 27, Official Records, as follows:
"Beginning at the Northeasterly corner of Parcel Two above, running thence along the Easterly line thereof South 1° 01' West, 1717.51 feet; thence North 88° 59' West, 900 feet; thence North 01° 01' East, 1707.00 feet to the Northerly line of said Parcel Two; thence along said line 900.07 feet to the point of beginning."

2. "Said Grantors present 2/7ths interest in and to their mineral rights in said real property", as reserved in the Deed from Mario A. Bertone and Mary M. Bertone, Trustees of the Mario and Mary Bertone Family Trust dated June 12, 1991, recorded October 10, 1997, Series No. 97-193264, Contra Costa County Records.

3. Any portion of said land which is or ever was tide or submerged lands.

APN: 020-150-003

PARCEL THREE
The right of way described in the deed from West Coast Life Insurance Company to W.

J. O'Hara, et ux, dated April 6, 1943 and recorded September 18, 1943, in Book 750,

Frank J. Dutra and Laura May Dutra, his wife, dated April 6, 1943 and recorded November 4, 1943, in Book 750, page 456, Official Records, and as reserved in the deed from Arthur E. Honegger, et ux, to Jerry E. Duarte, et ux, dated December 9, 1975 and recorded January 21, 1976, in Book 7743, page 240, Official Records, described as follows:

A non-exclusive right of way for use as a roadway for vehicles of all kinds, pedestrians and animals, and as a right of way for water, gas, oil and sewer pipe lines, and for telephone, electric light and power lines, together with the necessary poles or underground conduits to carry said lines over the following described parcel:

Beginning at the southeast corner of the Southwest quarter of the Northwest quarter of Section 33 in Township 2 North, Range 3 East, Mount Diablo Base and Meridian, and running thence along the east line of said Southwest quarter North 0° 19' East, 35.0 feet;, thence South 89° 51' East, 3738.8 feet to a point of the southwesterly line of the right of way of the Contra Costa Canal; thence along said southwesterly line South 44° 35' East, 49.3 feet to a point of the east and west midsection line of said Section 33; 106
thence along said midsection line North 89° 51' West, 3773.6 feet to the point of beginning.

PARCEL FOUR
A right of way [not to be exclusive] created in reference to the premises in the deed from Dante Massoni, et ux, recorded May 24, 1950, Book 1563, page 381, Official Records, for use as a roadway for vehicles of all kinds, pedestrians and animals, for water, gas, oil and sewer pipe lines, and for telephone, electric light and power lines, together with the necessary poles or conduits to carry said lines over a strip of land 50 feet in width the north line of which is parallel with and 50 feet northerly, measured at right angles, from the south line thereof and which south line is described as follows:

Beginning on the east-west midsection line of Section 33, Township 2 North, Range 3 East, Mount Diablo Base and Meridian, at the most easterly corner of Parcel One, described in the deed to Arthur H. Honegger, et ux, recorded May 24, 1950, Book 1563, page 381, Official Records, thence from said point of beginning North 83° 51' West, along said midsection line 1635.52 feet to a west line of Parcel One above.

PARCEL FIVE INTENTIONALLY DELETED

PARCEL SIX
A non-exclusive easement as an appurtenance to Parcels One and Two above, granted in the Deed to Arthur E. Honegger recorded August 27, 1976, Book 7994, Page 172, Official Records, "for use as a roadway for vehicles of all kinds, pedestrians and animals, for water, gas, oil and sewer pipe lines, and for telephone, electric light and power lines, together with the necessary poles or conduits. Said easement is a strip of land 20 feet wide, right angle measurement, in, under, over, along and across a corridor of land in the Easterly line of which is described as follows:

A portion of Section 28, Township 2 North, Range 3 East, Mount Diablo Base and Meridian, described as follows:
"Beginning at the Southeast corner of said Section 28, being also the common corner of Sections 27, 28, 33 and 34; running thence along the Eastern boundary line of Section 28, North 00° 18' West, 2645.2 feet to the East center line extension of Cypress Road, being also the North line, of the South one half of said Section 28, being also the West one quarter corner of said Section 27.

The West line shall be lengthened or shortened so as to create a strip of land of the uniform width of 20 feet."

PARCEL SEVEN
A non-exclusive easement as an appurtenance to Parcels One and Two above, granted 107
in the Deed to Arthur E. Honegger, recorded August 27, 1976, Book 7994, Page 175, Official Records, "for use as a roadway for vehicles of all kinds, pedestrians and animals, for water, gas, oil and sewer pipe lines, and for telephone, electric light and power lines, together with necessary poles or conduits. Said easement is a strip of land 20 feet wide, right angle measurement, in, under, over, along and across a corridor of land the Western boundary of which is described as follows:

A portion of Section 27, Township 2 North, Range 3 East, Mount Diablo Base and Meridian, described as follows:
"Beginning at the Southwest corner of said Section 27, being also the common corner of Sections 27, 28, 33 and 34; running thence along the Western boundary line of Section 27, North 00° 18' West, 2645.2 feet to the East center line extension of Cypress Road, being also the North line, of the South one half, of said Section 27, being also the West one quarter corner of said Section 27. The East line shall be lengthened or shortened so as to create a strip of land of the uniform width of 20 feet." 108
EXHIBIT A-4
LEGAL DESCRIPTION OF THE PA6-H PROPERTY
The land referred to is situated in the County of Contra Costa, City of Oakley, State of California, and is described as follows:

Parcel One:

Parcel “C”, as shown on the Parcel Map, filed August 12, 1968, in Book 4 of Parcel Maps, Page 49, Contra Costa County Records.

EXCEPTING THEREFROM: All oil, gas, casinghead gas, asphaltum and other hydrocarbons and all chemical gas, now or hereafter found, situated or located in all or any part or portion of the lands described herein lying more than 500 feet below the surface thereof, together with the right to slant drill for and remove all or any of said oil, gas, casinghead gas, asphaltum and other hydrocarbons and chemical gas lying below a depth of more than 500 feet below the surface thereof, but without any rights whatsoever to enter upon the surface of said land or upon any part of said lands within 500 feet vertical distance below the surface thereof, as reserved in the deeds from Bank of America National Trust and Savings Association, a national banking association, recorded December 16, 1942, in Book 712, Page 339, and on August 27, 1968, in Book 5697, Page 150 of Official Records of Contra Costa County.

Being APN 032-082-010
Parcel Two:

Parcel “D”, as shown on the Parcel Map, filed August 12, 1968, in Book 4 of Parcel Maps, Page 49, Contra Costa County Records.

EXCEPTING THEREFROM: All oil, gas, casinghead gas, asphaltum and other hydrocarbons and all chemical gas, now or hereafter found, situated or located in all or any part or portion of the lands described herein lying more than 500 feet below the surface thereof, together with the right to slant drill for and remove all or any of said oil, gas, casinghead gas, asphaltum and other hydrocarbons and chemical gas lying below a depth of more than 500 feet below the surface thereof, but without any rights whatsoever to enter upon the surface of said land or upon any part of said lands within 500 feet vertical distance below the surface thereof, as reserved in the deeds from Bank of America National Trust and Savings Association, a national banking association, recorded December 16, 1942, in Book 712, Page 339, and on August 27, 1968, in Book 5697, Page 150 of Official Records of Contra Costa County.

Being APN 032-082-011
109
EXHIBIT A-5
LEGAL DESCRIPTION OF THE PA3 PROPERTY
The land referred to is situated in the County of Contra Costa, City of Oakley, State of California, and is described as follows:

Parcel One:

Portion of the South 1/2 of Section 28, Township 2 North, Range 3 East, Mount Diablo Base and Meridian, described as follows:

Beginning on the North line of the South 1/2 of said Section 28 at the Northeast line of the 260 feet in width strip of land described in the Deed from Bank of America National Trust and Savings Association to United States of America, dated November 30, 1937, and recorded June 16, 1938, in Book 473 of Official Records, Page 2; thence from said point of beginning South 44° 35' East along said Northeast line to the South line of said Section 28; thence North 89° 58' East along said South line to the East line of said Section 28; thence North 0° 18' East along said East line to the North line of the South 1/2 of said Section 28; thence South 89° 58' West along said North line to a point which bears North 0° 02' West, 30 feet from the Northeast corner of the parcel of land described in the Deed from O.V. Strickland, et ux, to A.J. Cooley, dated June 10, 1950 and recorded June 27, 1950, in Book 1582 of Official Records, Page 460; thence South 0° 02" East at 30 feet the Northeast corner of said Cooley parcel, a total distance of 435.6 feet to the Southeast corner thereof; thence South 89° 58" West along the South line of said Cooley parcel, 1582 O.R. 460, and along the direct extension South 89° 58' West thereof to the Northeast line of the 125 feet in width strip of land described as Parcel 5 in the Judgment entered November 15, 1930, under action No. 30173, in the district court of the United States in and for the Northern district of California, Southern division, a certified copy of which was recorded November 15, 1950, in Book 1668 Official Records, Page 494; thence North 30° 53' 47" West along said Northeast line and along the extension Northerly thereof to the North line of the South 1/2 of said Section 28; thence South 89° 58' West along said North line to the intersection thereof with the Southwest line of said United States of America Parcel, 1668 or 494, extended North 30° 53' 47" West; thence South 30° 53' 47" East, along said extended line and along the Southwest line of said United States of America parcel, 1668 or 494, to a point which bears North 89° 58' East from the Southeast corner of the parcel of land described in the Deed from O.V. Strickland, et ux, to Eugene Conness, et ux, dated April 10, 1950 and recorded April 11, 1950, in Book 1536 of Official Records, Page 123; thence South 89° 58' West to the Southeast corner of said Conness parcel, 1536 O.R. 123; thence South 89° 58' west along the South line of said Conness parcel and along the direct extension South 89° 58' West thereof to the Southeast corner of the parcel of land described in the Deed from O.V. Strickland, et ux, to Dora M. Henry, et vir, dated June 27, 1949, and recorded July 25, 1949, in Book 1416 of Official Records, Page 274; thence South 89° 58' West along the South line of said Henry Parcel, 1416 O.R. 274, 68.24 feet; thence South 89° 58' West to a point which is 45 feet Northeasterly measured at right angles from the Northeast line of said United States of America Parcel, 473 O.R. 2; thence North 44° 35' West parallel with the Northeast line of said 110
United States of America Parcel to the North line of the South 1/2 of the said Section 28; thence South 89° 58' West along said North line to the point of beginning.

EXCEPTING THEREFROM:
"All oil, gas and other hydrocarbons and minerals now or at any time hereafter situate therein and thereunder", as reserved in the Deed from Bank of America National Trust and Savings Association to Earl M. Harrington, et ux, dated March 21, 1940 and recorded April 27, 1940, in Book 534 of Official Records, Page 309.

1. The interest conveyed to Contra Costa County by Deed from Earl M. Harrington, et ux, dated September 22, 1941 and recorded October 16, 1941, in Book 633 of Official Records, Page 44, "For Use as a Public Highway" over that portion of the premises lying within Cypress Road and Bethel Island Road.

2. Parcel "A", as shown on Parcel Map MS 950010, filed February 24, 2000, Parcel Map Book 178, Page 15, Contra Costa County Records.

Parcel Two:

The easement conveyed in the Deed from Arthur E. Honegger, a married man, recorded August 27, 1976, in Book 7994, Page 181, Official Records, Contra Costa County, as follows:

A portion of Section 33 and Section 34, Township 2 North, Range 3 East, Mount Diablo Base and Meridian, described as follows:

An easement for irrigation purposes, water transport, construction, repair, and maintenance with ingress and egress to said easement. Said easement is a strip of land 30 feet wide, right angle measurement in, under, over, along and across a corridor of land, the centerline of which is described as follows:

Beginning at the Southeast corner of said Section 28, being along the common corner of Sections, 27, 28, 33 and 34; running thence along the Eastern boundary line of Section 33, being also the centerline of said 30 foot wide irrigation easement, South 00° 18' West 2.485 feet, more or less, to a point on the Northeasterly boundary line of the right-of-way of the Contra Costa canal as described in the Deed from West Coast Life Insurance Company to the United States of America dated November 29, 1937 and recorded March 17, 1938 in Book 448, Page 155, Official Records. The side lines shall be lengthened or shortened so as to create a strip of land of the uniform width of 30 feet.

Thence, continuing with said 30 feet wide easement form the point of intersection of said centerline with the said Northeasterly boundary line of said canal the Southwestern boundary line of said strip is described as follows:

Said Southwestern boundary line is also the Northeastern boundary line of said canal thence, in a Southeasterly direction parallel with the Northeasterly boundary line of said 111
canal, thence along the last named line South 44° 35' West 225 feet, more or less, to a point of intersection with the East-West mid-section line of said Section 34.

The Northeasterly boundary line of said 30 feet wide strip, right angle measurement, shall be lengthened or shortened so as to create a strip of land of the uniform width of 30 feet.

Parcel Three:

A non-exclusive easement as an appurtenance to Parcel One above for a right of way for pedestrian and vehicular ingress and easement for maintenance, repair and replacement of electric lines, subterranean sewer and other utilities, over, under and upon an Easterly portion of said land lying within the area designated as “Temporary Private Access Easement to Remainder" as shown on the Parcel Map M.S. 10-95 in Book 178 of Parcel Maps at Page 15, Contra Costa County Records.

APN: 032-050-003
112
ORDINANCE NO. -23

AN ORDINANCE OF THE CITY OF OAKLEY CITY COUNCIL APPROVING THE

GRAND CYPRESS PRESERVE DEVELOPMENT AGREEMENTS MASTER
AMENDMENT (DA 01-23) BETWEEN THE CITY OF OAKLEY AND ACD-TI OAKLEY LLC (APNS: 020-140-048; 020-150-003; 032-050-003; 032-082-001; 032-082-005; 032-082-010; 032-082-011; AND 032-082-013)
WHEREAS, the City has enacted a Development Agreement Ordinance A codified as Chapter 3 of Title 9 of the Oakley Municipal Code (“OMC”) establishing the procedures and requirements for the consideration of development agreements pursuant to California Government Code Section 65864 et seq.; and
WHEREAS, on June 29, 2023, Andrew Han of ACD-TI Oakley, LLC (“Applicant”) filed an application requesting approval of a Development Agreements Master Amendment (DA 01-23) that would apply to five separate Development Agreements to extend their terms from December 13, 2025 to December 13, 2035 (“Original Project”), later amending the request to extend their terms to December 13, 2045 (“Project”). The five existing Development Agreements apply to previously approved development projects made up of Planning Areas 1, 3, 4, and 6-H of the East Cypress Corridor Specific Plan.

The development projects, commonly known as KT-KB Oakley LLC and Lesher Trust (Planning Area 1) Dal Porto South (Planning Area 3), Bethel Island LLC (Planning Area 4), and Pacific West Communities (Planning Area 6-H), are all part of a larger project known as “Grand Cypress Preserve”. All sites covered under the existing Development Agreements and applicable to the proposed Master Amendment are zoned SP-1 (East Cypress Corridor Specific Plan) District. The applicable sites are located in Planning Areas 1, 3, 4, and 6-H of the East Cypress Corridor Specific Plan generally located at the eastern end of Oakley north and south of East Cypress Road, Oakley, CA 94561. APNs: 020-140- 048; 020-150-003; 032-050-003; 032-082-001; 032-082-005; 032-082-010; 032-082-011; and 032-082-013; and
WHEREAS, the project is designated as Specific Plan (SP) in the Oakley General Plan, and zoned SP-1 (East Cypress Corridor Specific Plan) District; and WHEREAS, the project is within the scope of related entitlements approved under the analysis of the East Cypress Corridor Specific Plan Revised Final Environmental Impact Report (SCH No. 2004092011) certified by the City Council through adoption of Resolution No. 46-09 on March 10, 2009; and
WHEREAS, on July 18, 2023, the Planning Commission held a duly noticed public hearing at which it considered the Project, Staff’s Report, Oakley General Plan, the City’s Zoning and Subdivision Ordinances, the East Cypress Corridor Specific Plan, the Revised EIR, and all comments received in writing and all testimony received at the public hearing (together the “Record”), and adopted Planning Commission 11-23 recommending the City Council adopt an ordinance approving the Project; and
113
Ordinance No. -23 Page 2 of 4
WHEREAS, on August 8, 2023, the City Council held a duly noticed public hearing for the project and per recommendation from Staff, the City Council announced the item would be continued to a date certain, September 12, 2023. The Mayor then opened the public hearing and announced the City Council had received two public comments prior to the hearing and solicited additional comments from the public, of which there were none. Upon conclusion of the public comment period, the City Council continued to item to September 12, 2023; and
WHEREAS, on September 12, 2023, the City Council re-opened the public hearing and continued the item to a date uncertain. No additional public comments were received at that time; and
WHEREAS, on September 21, 2023, the Applicant revised the proposed Master Amendment thereby modifying the proposed project. The detail of that revision was a request to increase the term expiration from an additional 10 years beyond December 13, 2025 (to December 13, 2035) to an additional 20 years beyond December 13, 2025 (or to December 13, 2045); and
WHEREAS, on October 17, 2023, the Planning Commission held a duly noticed public hearing at which it considered the Project, Staff’s Report, Oakley General Plan, the City’s Zoning and Subdivision Ordinances, the East Cypress Corridor Specific Plan, the Revised EIR, and all comments received in writing and all testimony received at the public hearing (together the “Record”), and adopted Planning Commission Resolution No. 13- 23 recommending the City Council adopt an ordinance approving the Project; and WHEREAS, on or before October 13, 2023, the Notice of Public Hearing for the Project was duly noticed in the Contra Costa Times, a newspaper of general distribution, was posted at Oakley City Hall located at 3231 Main Street, outside the gym at Delta Vista Middle School located at 4901 Frank Hengel Way, outside the library at Freedom High School located at 1050 Neroly Road, and was mailed out to all owners of property within a 500-foot radius of the subject property’s boundaries, to outside agencies, and to parties requesting such notice; and
WHEREAS, on October 24, 2023, the City Council opened the continued public hearing at which it considered the Project’s Development Agreement, Staff’s Report, Oakley General Plan, the City’s Zoning and Subdivision Ordinances, the East Cypress Corridor Specific Plan, the Revised EIR, and all comments received in writing and all testimony received at the public hearing (together the “Record”); and WHEREAS, if any term, provision, or portion of these Findings or the application of these Findings to a particular situation is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions of these Findings, or their application to other actions related to the Project, shall continue in full force and effect unless amended or modified by the City; and
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Ordinance No. -23 Page 3 of 4
WHEREAS, these Findings are based upon the City’s General Plan, the City’s Zoning Ordinance, the East Cypress Corridor Specific Plan and all related documents, and the information submitted to the City Council at its October 24, 2023 meeting, both written and oral, including oral information provided by the applicant, as reflected in the minutes of such meetings, together with the documents contained in the file for the project (hereinafter the “Record”).

The City Council of the City of Oakley does ordain as follows:

SECTION1. Findings
A. Regarding the application requesting approval of the Grand Cypress Preserve Development Agreements Master Amendment (DA 01-23) by and between the City of Oakley and ACD-TI Oakley LLC:

1. The Development Agreements Master Amendment is consistent with the objectives, policies, general land uses and programs specific in the East Cypress Corridor Specific Plan (“ECCSP”). It is also compatible with the uses authorized in, and the regulations prescribed for, the ECCSP, and is designed in compliance with the approved development plans in that it does not result in any physical changes to any of the approved entitlements for any of the applicable Tentative Maps; and

2. The Master Amendment is in conformity with public convenience, general welfare and good land use practice and will not be detrimental to the health, safety and general welfare in that the development in the ECCSP is responsible for much of the infrastructure improvements or cost-sharing for those improvements in and around the area that will benefit future residents and existing residents of Summer Lake South and areas in unincorporated Contra Costa County, such as along Dutch Slough Road and Sandmound Boulevard and on Bethel Island, and the term extension will increase the likelihood these projects are developed, and as a result, that infrastructure completed; and

3. The Master Amendment will not adversely affect the development of the properties in that the term extension will increase the chances they are able to be developed in the future; and
B. The project complies with Measure J Growth Management requirements.

SECTION 2. Approval of the Master Amendment to the Development Agreements The City Council hereby approves the Development Agreements Master Amendment (Exhibit “A) and authorizes and directs the Mayor to sign it. 115
Ordinance No. -23 Page 4 of 4
SECTION 3. Recordation of Development Agreement
Within ten (10) days after the Mayor executes the Development Agreement, the City Clerk shall submit the Agreement to the County Recorder for recordation.

SECTION 4. Effective Date and Posting
This ordinance shall take effect and be in force thirty (30) days from and after the date of its passage. The City Clerk shall cause the ordinance to be published within fifteen (15) days after its passage in a newspaper of general circulation, or by publishing a summary of the proposed ordinance, posting a certified copy of the proposed ordinance in the City Clerk’s Office at least five (5) days prior to the City Council meeting at which the ordinance is to be adopted, and within fifteen (15) days after its adoption, publishing a summary of the ordinance with the names of the Council Members voting for and against the ordinance.

The foregoing ordinance was adopted with the reading waived at a regular meeting of the Oakley City Council on , 2023 by the following vote:

AYES:

NOES:

ABSTENTIONS:

ABSENT:

APPROVED:
_____________________________________
Aaron Meadows, Mayor
ATTEST:
________________________________
Libby Vreonis, City Clerk Date
116

STAFF REPORT

City of Oakley | 3231 Main Street, Oakley, CA 94561
O (925) 625-7000 | F (925) 625-9859 | www.ci.oakley.ca.us DATE: October 24, 2023
TO: City Council
FROM: Joshua McMurray, City Manager
SUBJECT: Adopt a Resolution approving a Superseding Agreement regarding the reimbursement for, and implementation of construction improvements related to the Grand Cypress Preserve project with ACD-TI Oakley, LLC Background and Analysis
The Grand Cypress Preserve Project is the largest residential development in Oakley and a major component of the East Cypress Corridor Specific Plan (ECCSP). When the ECCSP was originally approved, there were several property owners in control of multiple large pieces of land. Eventually, these multiple pieces were acquired by two entities and one of them was consolidated into the largest residential subdivision project in Oakley, today referred to as the Grand Cypress Preserve.

The Grand Cypress Preserve Project is made up of six Vesting Tentative Maps approved under the titles, “KT KB Oakley, LLC Subdivision 9311,” “Lesher Subdivision 9404,” “Dal Porto Subdivision 9401,” “Bethel Island, LLC Subdivision 9156,” “Pacific West Communities, Inc.

MS 11-976,” and the “Farr Tentative Parcel Map MS 15-976.” Combined, the six subdivisions include approximately 1,256 acres and 3,167 single family residential lots. These subdivisions have approved Development Agreements (DAs) with the City dating as far back as 2005.

One of the most critical and highly prioritized projects in the City, East Cypress Road from Jersey Island Road to Bethel Island Road, will be constructed to modern City standards as part of the Grand Cypress Preserve Project. This critical improvement will provide much needed and improved circulation for the far east end of the City and will allow for a more complete and robust evacuation route with the construction of a fully divided 4-lane arterial road.

Staff worked with the developer of the Grand Cypress Preserve project in late 2021 and early 2022 to finalize a reimbursement agreement in the amount of $28,607,254.81 that ensured the public infrastructure for the project relating to East Cypress Road and Bethel Island Road would get constructed in a timely manner. The City Council approved that agreement in April of 2022. Since executing the Original Agreement, the Developer and City have discussed entering into a superseding agreement in which the City would construct the improvements related to East Cypress Road through a CIP project and the Developer would construct the other projects that comprise the Improvements.

In short, entering into the proposed superseding agreement will allow the City to start construction of the East Cypress Road improvements almost immediately and will relieve the City of any future reimbursement to the developer with the exception of the following:

Approved and
Forwarded to the
City Council
117

STAFF REPORT
CITY HALL | 3231 Main Street, Oakley, CA 94561 2
O (925) 625-7000 | F (925) 625-9859 | www.CI.Oakley.CA.US  Fee Credits in the Original Agreement are revised to indicate that upon completion of the Jersey Island Road improvement, the developer is entitled to a fee credit equal to the Traffic Impact Fee (TIF) reimbursement, currently projected to be $4,240,100.
 The amount of TIF in the original agreement is revised to reflect that the TIF for Single-Family is frozen at $13,399.20 per lot from now until the 12th anniversary of the DA Extension. Beginning in the 13th year, until the end of the DA Extension, the TIF for Single-Family is adjusted one time equal to the halfway point between $13,399.20 and the TIF for Single-Family in effect in the 13th year.  The TIF for Multi-Family is frozen at $9,126.45 for 10 of 20 years. At the start of the 11th year, the TIF is adjusted one time upward halfway between $9,126.45 and the TIF for Multi-Family in effect in the 11th year, and remains the same for the next 10 years.
 The Public Facilities fee for Single-Family is frozen at $3,974.18 for 10 of 20 years.

At the start of the 11th year, the Public Facilities fee is adjusted one time upward halfway between $3,974.18 and the Public Facilities fee for Single-Family in effect in the 11th year, and remains the same for the next 10 years.  The Public Facilities fee for Multi-Family is frozen at $2,602.16 for 10 of 20 years.

At the start of the 11th year, the Public Facilities fee is adjusted one time upward halfway between $2,602.16 and the Public Facilities fee for Multi-Family in effect in the 11th year, and remains the same for the next 10 years;  The Developer will pay $431 per home, due at building permit, towards the ECCSP Fair Share Mitigation Measures for projects within Unincorporated Contra Costa County.

One last provision of the agreement relates to the secondary access contemplated and required by the East Cypress Corridor Specific Plan. The City and developer have agreed that the City will use good faith efforts to analyze and devise an alternative route that would result in removal of the requirement for construction of a bridge over Rock Slough. If the City can achieve that, the developer will be relieved of the mitigation to construct the bridge and the City will be relieved of reimbursing the Developer for costs beyond the developer’s fair share. The reimbursement amount is currently estimated to be $2,568,245, subject to adjustments for actual costs.

Staff is recommending the attached agreement be approved, which will greatly accelerate the timeline for the ultimate construction of the East Cypress Road improvements.
118

STAFF REPORT
CITY HALL | 3231 Main Street, Oakley, CA 94561 3
O (925) 625-7000 | F (925) 625-9859 | www.CI.Oakley.CA.US Consistency with the Oakley Strategic Plan 27+
This item is consistent with the Community and Economic Development goal, the subgoal of Strategic and Thoughtful Growth, specifically the sub-objective that points to the City planning and developing the Cypress Corridor holistically with improvements and commerce to service new development to ease downtown traffic (e.g., grocery, restaurants).

This item is also consistent with the Community Health and Safety Goal, the Safe Streets sub-goal and specifically the sub-objective that address streets and main arteries vulnerable to fire, flood, and traffic hazards with improving infrastructure and evacuation plans to provide for safe passage for people including emergency responders, including the East Cypress Corridor Specific Plan Area.

Lastly, this item is also consistent with the Finance and Fiscal Responsibility Goal and specifically the sub-objective that points to the City making the most needed improvements to streets, utilizing development’s improvements, funds from the sale of property, and other financing sources to make improvements to the East Cypress traffic flow situation.

Fiscal Impact
The fiscal impact related to this superseding agreement has been explained in detail within this Staff Report.

Staff Recommendation
Staff recommends that the City Council adopt the resolution approving the superseding reimbursement agreement with ACD-TI Oakley.

Attachments
Draft Resolution
Draft Agreement
119
4879-0085-3384.1
RESOLUTION NO._________

RESOLUTION OF THE CITY COUNCIL OF THE CITY OF OAKLEY

APPROVING THE SUPERSEDING AGREEMENT REGARDING

REIMBURSEMENT FOR AND IMPLEMENTATION OF CONSTRUCTION OF

IMPROVEMENTS RELATED TO THE GRAND CYPRESS PRESERVE

PROJECT WITH ACD-TI OAKLEY, LLC
WHEREAS, ACD-TI Oakley, LLC (“Developer”), the developer of the Grand Cypress Reserve Project (“Project”), has land use entitlements to develop nearly 3,000 units within the East Cypress Corridor Specific Plan Area (“Specific Plan Area”).

WHEREAS, as a condition to the development of the Project, the Developer is required to design, construct, and install offsite or excess capacity traffic improvements, and to dedicate land to construct such improvements (the “Improvements”).

WHEREAS, the Improvements include the widening of East Cypress Road between Jersey Island Road to Bethel Island Road, widening the full width of Jersey Island Road along the development frontage, and Bethel Island Road from East Cypress Road to Rock Slough Bridge, and the construction of Rock Slough Bridge.

WHEREAS, on April 13, 2023, Developer and the City entered into the Agreement Between the City of Oakley and ACD-TI Oakley, LLC Concerning Reimbursement For Construction Of Improvements Related To The Grand Cypress Preserve Project (“Original Agreement”)
WHEREAS, since executing the Original Agreement, the Developer and City have discussed entering into a superseding agreement in which the City would construct the improvements related to East Cypress Road, and Developer would construct the other projects that comprise the Improvements.

WHEREAS, the City and Developer seek to memorialize their agreement to enter into a superseding agreement to revise, restate, and replace the terms and covenants of the Original Agreement, as they have agreed.

NOW, THEREFORE, BE IT RESOLVED, the City Council of the City of Oakley hereby approves the Superseding Agreement Regarding Reimbursement for and Implementation of Construction of Improvements Related to the Grand Cypress Preserve Project (“Superseding Agreement,” a true and correct copy of which is attached as Exhibit A to this Agreement), and the City Council authorizes the City Manager to execute the Superseding Agreement on the City’s behalf.

BE IT FURTHER RESOLVED, The City Council finds that the approval of the Agreement is not subject to the California Environmental Quality Act (“CEQA”) because such approval is not a project, as it involves government funding activities per CEQA Guidelines (California Code of Regulations, Title 14) section 120
4879-0085-3384.1
15378(b)(4), and all environmental impacts associated with the Project have been previously analyzed during the Project’s entitlement processes.

The foregoing resolution was adopted at a regular meeting of the City Council of the City of Oakley held on the 24th day of October, 2023 by Councilmember _________________, who moved its adoption, which motion being duly seconded by Councilmember _______________, was upon voice vote carried and the resolution adopted by the following vote:

AYES:

NOES:

ABSTENTION:

ABSENT:

APPROVED:
__________________________
Aaron Meadows, Mayor
ATTEST:
______________________________________
Libby Vreonis, City Clerk Date
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#226896007v6 - Superseding Agreement Regarding Reimbursement and Implementation (formerly Mutual Rescission) Agreement 1

SUPERSEDING AGREEMENT REGARDING REIMBURSEMENT FOR AND

IMPLEMENTATION OF CONSTRUCTION OF IMPROVEMENTS RELATED TO

THE GRAND CYPRESS PRESERVE PROJECT
This Superseding Agreement Regarding Reimbursement for and Implementation of Construction of Improvements (this “Agreement”), is made as of the __ day of October, 2023 (the “Effective Date”) by and between the City of Oakley, a California municipal corporation (“City”) and ACD-TI Oakley, LLC, a California limited liability company (“Developer”). City and Developer are collectively referred to within as “Parties” in this Agreement.

RECITALS
A. Developer owns the real property (the “Property”) described as Exhibit A in the Original Agreement and, through its predecessors in interest, has obtained the various approvals and entitlements identified herein (“Approvals”).

B. The Approvals consist of the following:

1. Environmental Impact Report. Pursuant to the California Environmental Quality Act of 1970, Pub. Res. Code §§ 21000-21178, as amended and the Guidelines for Implementation of the California Environmental Quality Act, Cal. Code Regs. Title 14, §§15000-15387 (collectively, “CEQA”), the City Council certified a final environmental impact report for the Grand Cypress Preserve Project (SCH No. 2007012075) pursuant to Resolution No. 116-07 (“Project EIR”).

2. East Cypress Corridor Specific Plan (“Specific Plan”). The City Council, after a duly noticed public hearing and certification of the Project EIR, introduced, and adopted Ordinance No. 10‐09, adopting the Specific Plan and rezoning the plan encompasses (“Specific Plan Area”) to SP‐1 District.

3. Vesting Tentative Maps. The City Council, after a duly noticed public hearing and certification of the Project EIR, adopting resolutions approving six separate Vesting Tentative Maps associated with the Grand Cypress Preserve Project as follows (listed in order of Planning Area number):
a. KT KB Oakley, LLC Subdivision 9311 (Planning Area 1):

Resolution No. 45‐ 12 adopted May 8, 2012. Subdivided 334 acres into 276 single family residential lots. Also included 227 acres of wetland/open space (TM 01‐12).
b. Lesher Subdivision 9404 (Planning Area 1): Resolution No. 98‐15 adopted July 14, 2015. Subdivided 355 acres into 1,056 single family residential lots (TM 03‐15). Resolution 150‐20 adopted November 10, 2020. Subdivided 14.7 acres into 227 single family residential lots (TM 04‐ 20).
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#226896007v6 - Superseding Agreement Regarding Reimbursement and Implementation (formerly Mutual Rescission) Agreement 2

c. Dal Porto Subdivision 9401 (Planning Area 3): Resolution No. 96‐ 15 adopted July 14, 2015. Subdivided 183 acres into 403 single family residential lots (TM 02‐15).
d. Bethel Island, LLC Subdivision 9156 (Planning Area 4):

Resolution No. 122‐ 11 adopted November 8, 2011. Subdivided 351 acres into 933 single family residential lots and 195 apartments (TM 02‐11).

Resolution No. 149‐20 adopted November 10, 2020. Subdivided 10.9 acres into 162 single family residential lots (TM 03‐20).
e. Pacific West Communities, Inc. Tentative Parcel Map MS 11-976 (Planning Area 6-H): Resolution No. 11-12 adopted January 24, 2012 (TPM 01- 11). Subdivided two parcels totaling approximately 16.44 acres into four parcels.
f. Farr Tentative Parcel Map MS 15-976 (a portion of Planning Area 6-W): Resolution No. 97-15 adopted July 14, 2015 (TPM 02-15).

Subdivided approximately 2.1-acre parcel into two lots of approximately 47,000 square feet and approximately 43,400 square feet. Resolution No. 91-18 adopted July 10, 2018. Approving applicant's request for Farr MS 15- 976 Tentative Map Extension (TME 02-18)

4. Development Agreements (each, individually, a “Development Agreement” and collectively, the “Development Agreements”) have been entered into and recorded for the six separate subdivision projects as listed in Recital B.3 of the Original Agreement as follows (listed in order of approval):
a. Lesher (Planning Area 1): Recorded October 11, 2005.

Approved through adoption of City Council Ordinance No. 25‐05 on September 25, 2005.
b. Bethel Island, LLC (Planning Area 4): Recorded February 8, 2012. Approved through adoption of City Council Ordinance No. 26‐11 on January 10, 2012.
c. Lesher (Planning Area 1): Recorded May 2, 2012. Approved through adoption of City Council Ordinance No. 25‐11 on January 10, 2012. d. Pacific West Communities, Inc. (Planning Area 6-H):

Recorded February 8, 2012. Approved through adoption of City Council Ordinance No. 27- 11 on January 10, 2012.
e. KT KB Oakley, LLC/Lesher (Planning Area 1): Recorded July 6, 2012. Approved through adoption of City Council Ordinance No. 03‐12 on May 22, 2012.
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#226896007v6 - Superseding Agreement Regarding Reimbursement and Implementation (formerly Mutual Rescission) Agreement 3 f. Dal Porto (Planning Area 3): Recorded January 15, 2016.

Approved through adoption of City Council Ordinance No. 10‐15 on August 11, 2015.

C. In anticipation of the development contemplated by the Approvals, the Parties entered into that certain Agreement Between the City of Oakley and ACD-TI Oakley, LLC Concerning Reimbursement for Construction of Improvements Related to the Grand Cypress Preserve Project (the “Original Agreement”) dated as of April 13, 2022, providing for, among other things, reimbursement for Developer’s construction of excess improvements, beyond its fair-share obligations, for improvements associated with the Approvals, which are identified in Recital D and Exhibit B of the Original Agreement (the “Improvements”).

D. Under the Original Agreement, among the covenants it is obligated to perform, Developer is obligated to construct certain Improvements between Jersey Island Road and Bethel Island Road, including full intersection improvements at both ends, which are identified as Projects 1, 2, and 3 referenced in Exhibit B of the Original Agreement (“East Cypress Improvement”).

E. The Parties desire to relieve the Developer of its obligation to construct the East Cypress Improvement and to state their agreement that the City shall assume the responsibility for, and shall construct, the East Cypress Improvement, on the terms set forth herein. The Parties also desire to accomplish certain amendments to the Development Agreements (the “DA Amendments”), inter alia, extending the terms thereof and effectuating other changes thereto as more particularly set forth therein.

F. For the agreed terms and conditions, the Parties now mutually desire to enter into this Agreement, which shall (i) supersede the Original Agreement, (ii) relieve Developer from its obligation to complete the East Cypress Improvement, and (iii) relieve the City of its obligation to reimburse Developer for the costs incurred in constructing the East Cypress Improvement, all as set forth below.

SUPERSEDING AGREEMENTS AND IMPLEMENTATION
NOW, THEREFORE, subject to the terms, provisions, and conditions set forth below, the Parties hereby agree as follows:

1. Recitals. The foregoing Recitals are true and correct, and hereby incorporated into this Agreement as if set forth in full herein.

2. Effectiveness of Obligations. The Parties intend and agree that their respective rights and obligations hereunder shall be expressly conditioned upon the effectuation of the DA Amendments, which require official legislative action by the City. Accordingly, notwithstanding the Effective Date defined above, the obligations and undertakings set forth herein with respect to either Party shall not be effective unless and until the DA Amendments become effective, and the Effective Date shall not occur until such date.
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3. Superseding Agreement. The Original Agreement shall, effective as of the Effective Date, be superseded by this Agreement with respect to the matters set forth herein. If, for any reason either Party fails to fulfill its obligations as set forth herein, following reasonable notice and opportunities to cure such failing, if possible, this Agreement shall be of no force and effect and the non-defaulting Party shall be entitled to the remedies at law or in equity that would be available to such Party under the Original Agreement with the same force and effect as if such failing had occurred with respect to the Original Agreement itself. Notwithstanding the foregoing, any right or remedy exercised under the Original Agreement would be required to take into account the reasonable estimation of of any improvements or work the City has performed under this Agreement prior to such default and offset such completed work against the remaining elements contained within the Reimbursement Obligation, as defined in Recital F of the Original Agreement.

4. Dedication of Land in Fee for East Cypress Improvement; Temporary Construction Easement. As part of the Parties’ agreement to modify their respective obligations to perform the covenants of the Original Agreement through this Agreement, concurrently with the mutual execution of this Agreement by the Parties and as a condition to the effectiveness hereof,
(a) Developer shall deposit in escrow with ___[to be determined]___ (the “Escrow Holder”) an Irrevocable Offer of Dedication, substantially in the form as shown in Exhibit A to this Agreement (the “Offer of Dedication”), which Offer of Dedication shall (i) propose to dedicate in fee, at no cost to the City, the real property described therein, consisting of the real property subject to the East Cypress Improvement, (ii) be released by the Escrow Holder and delivered to the City upon the timely completion of the East Cypress Improvement in accordance with the requirements of this Agreement and the satisfaction of the conditions to such dedication set forth in the Approvals, including the applicable conditions thereto, and (b) Developer shall execute in favor of the City a temporary construction easement (the “TCE”) substantially in the form shown in Exhibit B to this Agreement, which TCE shall afford City and its agents, contracting parties and employees access to identified portions of Developer’s Property for the limited purpose of constructing the East Cypress Improvement. The TCE shall terminate upon the City’s completion of the East Cypress Improvement.

5. City Obligation to Complete East Cypress Improvement. In consideration for Developer’s undertakings provided in this Agreement, including the agreement to forego reimbursements with respect to the East Cypress Improvement as contemplated by the Original Agreement (except as specifically set forth herein), the City agrees it shall timely construct and complete the East Cypress Improvement in accordance with this Agreement. The City shall complete the East Cypress Improvement within 24 months of the execution of this Agreement (the “Construction Completion Date”) and in accordance with the Precise Alignment Plan the Oakley City Council has adopted prior to the execution of this Agreement; provided, however, that so long as the City has commenced such construction of the East Cypress Improvement not later than 12 months following the Effective Date and continues thereafter to diligently pursue the completion of the East Cypress Improvement, upon written request made to Developer by the City, Developer 125
#226896007v6 - Superseding Agreement Regarding Reimbursement and Implementation (formerly Mutual Rescission) Agreement 5 shall consider, in good faith, a request by the City to extend the Construction Completion Date for an additional 12 month period, and shall not unreasonably withhold its consent to such a request.

Any such extension of the Construction Completion Date shall be confirmed in a written acknowledgment executed by both the City and Developer. Prior to commencing any work on the East Cypress Improvement, the City shall deliver to Developer all approved plans and specifications therefor and a period of not less than ten (10) business days for Developer to review the same and reasonably consent thereto. As a condition to this Agreement, the scope of work for said Precise Alignment Plan and the City’s undertaking hereunder shall conform in all material respects to those certain East Cypress Road Grading & Improvement Plans prepared by Bellecci & Associates and bearing the date May, 2023, shall include, without limitation, the following: (i) all necessary utility relocations, sewer and water line extensions, street improvements, traffic light and signal installations, streetlights and fire hydrants, utility stub-ins on ‘A’ street, “Phase 1” levee improvements required to raise the affected street, and the precise alignment plan agreed among Developer, City, CCWD and other pertinent stakeholders, as approved by the City Council. The City’s responsibilities hereunder shall also include (i) all parkway and street landscape, to be completed in accordance with a to-be-finalized plan therefor (except that, specifically in the case of parkway and street landscape improvements, the completion of such improvements by City may extend beyond 36 months following the Effective Date, notwithstanding the provisions of the first sentence of this Section 5 above, if necessary to coincide with the formation of a community facilities district for maintenance of such improvements and with the commencement of residential construction of the Project, and subject to mutual agreement between the City and Developer as to the timing thereof), (ii) dry utilities, to be completed pursuant to a dry utility improvement plan to be prepared by the City and approved by PG&E, which dry utility plan will specify and scope relocation of existing utilities (both underground and overhead), energizing new streetlights, traffic signal and irrigation controllers, and joint trench with sufficient sleeves to accommodate the Developer's residential development; and (iii) improvements and coordination necessary for connections and interfacing of infrastructure contained within the East Cypress Improvement and that certain 1,100 linear foot CCWD Canal Replacement Project [CRP] Segment 4 connection to Segment 5B that CCWD is undertaking (provided that the City’s responsibilities with respect to undergrounding of the CCWD Canal shall extend only to those improvements necessary for completion of the East Cypress Improvement, except that the City will coordinate the East Cypress Improvement as it relates to the CRP), and (iv) the completion of the roadway intersection of East Cypress Road and ‘A’ street. The City shall be responsible for any necessary import of dirt required for the construction of the East Cypress Improvement.

On and after the Effective Date, the City shall assume the obligations of all governmental permits and authorizations Developer has obtained for the East Cypress Improvement and shall obtain and comply with any additional permits or authorizations required for the East Cypress Improvement and the scopes of work therefor that are described herein, including but not limited to environmental clearances, mitigation measures, including HCP, and the City shall bear the costs of any fees arising therefrom. Without limiting the foregoing, the City shall obtain as necessary approvals from CCWD/Bureau of Reclamation with respect to any matters described in this Agreement that are within such parties’ jurisdiction. The City shall also obtain the consent of PG&E to any grade alteration or change to the condition of the PG&E Easement that is contained within the East Cypress Improvement area.
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#226896007v6 - Superseding Agreement Regarding Reimbursement and Implementation (formerly Mutual Rescission) Agreement 6 Subject to Section 7, Any material evision or modification to the various scopes of work described in this paragraph shall require the prior consent of Developer.

6. Transfer of Records and Consent to Continued Professional Services. Not later than 30 days following the Effective Date, the Developer shall transfer to the City all plans, drawings, specifications, applications, permits, and governmental authorizations prepared or received for, or in relation to, the East Cypress Improvement. On the Effective Date, the City shall deliver to Developer a list setting forth those records, permits, applications, authorizations and plans that the City expects Developer to so transfer. Developer shall also advise all engineers, architects, and consultants who have provided the Developer professional services concerning the East Cypress Improvement that it consents to those professionals providing continued services concerning the East Cypress Improvement to the City. The City acknowledges and agrees that all expenses, costs, charges and liabilities to engineers, architects and consultants pertaining to the East Cypress Improvement and incurred following the Effective Date shall be and remain the sole responsibility of the City. The City shall not be responsible for any such expenses, costs, charges and liabilities that pertain to services performed prior to the Effective Date.

7. Continued Cooperation. The Parties agree to continue to cooperate with each other, in good faith, in all respective aspects of each of their respective undertakings and agreements set forth herein, including without limitation the City’s construction activities with respect to the East Cypress Improvement, and Developer’s predevelopment, site preparation and grading activities with respect to the Property. Without limiting the foregoing, the Parties shall have the right, respectively, to attend and participate in periodic construction and pre-construction meetings conducted by either of them with respect to the East Cypress Improvement and Developer’s construction of its project on other portions of the Property. The City will conduct bi-monthly or quarterly meetings to discuss design and course-of-construction matters related to the East Cypress Improvement and will solicit and consider Developer’s input and comments with respect to such matters that impact the design, construction and feasibility of Developer’s project.

8. Compliance with Environmental Clearances; Bonds.
(a) All work performed by or at the direction of, City with respect to the East Cypress Improvement pursuant to this Agreement shall comply with the requirements of the environmental clearances, approvals and permits issued in connection with Developer’s Property, its development plan and the Improvements, including without limitation, conditions, impositions and approvals imposed by, among others, the U.S. Army Corps. of Engineers, the California Department of Fish and Game, and the applicable regional water quality board(s) having jurisdiction over such matters.

Without limiting the foregoing, City shall not take any action that threatens or is inconsistent with Developer’s existing entitlement under the Approvals, or adversely impacts the Property, and shall not seek to impose upon Developer or the Property any new or altered conditions, exactions or mitigation requirements (including without limitation the imposition or collection of fees beyond those set forth in the respective Development Agreements) other than those contained in the Approvals without Developer’s prior written consent, which consent may be given or withheld in Developer’s sole and subjective discretion.
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#226896007v6 - Superseding Agreement Regarding Reimbursement and Implementation (formerly Mutual Rescission) Agreement 7 (b) City shall obtain and keep in place, if applicable, all necessary surety assurances, bonds, permits and enhancements necessary to complete the East Cypress Improvement, and to bear all costs, expenses and liabilities in connection therewith.

9. Other Financial Terms. Developer and the City hereby acknowledge and agree to the following modified financial terms related to the subject matter of the Original Agreement, which shall take effect as of the Effective Date, provided that the East Cypress Improvement is undertaken by the City and completed in accordance with this Agreement on or before the Construction Completion Date, and shall supersede and restate the relevant provisions of the Original Agreement:
(a) the amount of the Full Fair Share Amount defined in Recital G of the Original Agreement shall be $18,843,961.
b) the amount of the total estimated cost to construct the Improvements that is described in Recital F of the Original Agreement as the Reimbursement Obligation shall be $6,808,345.
(c) the amount of the Reimbursement Obligation to be sourced from the TIFF as described in Recital H of the Original Agreement shall be $4,240,100 and the reference in Recital H to Developer’s construction of the Improvements shall be deemed to refer to the Improvements other than the East Cypress Improvement. The reference to the Property Transfer Amount in Recital H is removed. The Remaining Payment described in Recital H shall be $2,568,245.
(d) The TIF Credit described in Section 3.C of the Original Agreement shall, notwithstanding the provisions thereof, be made available to Developer upon its completion of the Jersey Island Road improvement described in the Original Agreement, and shall be sourced in the form of a credit against TIF for any lots constructed within Developer’s Property following the completion of the Jersey Island Road Improvement, until the amount of the TIF Credit is exhausted. The amount of the TIF Credit is currently estimated to be $4,240,100. The TIF Credit may be applied against any outstanding TIF payments payable by Developer in connection with the City’s issuance of building permits, at the rates described in Section 3.D of the Original Agreement, and portions of the TIF Credit may be assigned by Developer to builders who will construct homes on the Property pursuant to the Approvals. (e) Notwithstanding the provisions of Section 3.D of the Original Agreement, the TIF payable by Developer with respect to single-family lots within the Property be fixed at $13,399.20 per lot from and after the Effective Date until the 12th anniversary of the effective date of the ordinance approved by the City to extend the expiration dates of the Development Agreements, as contemplated by this Agreement. Following such 12th anniversary, the TIF amount shall be adjusted once, and only once, to a number that represents the halfway point between $13,399.20 and the then-applicable TIF for single-family lots elsewhere in the Specific Plan Area that would be otherwise payable during such 13th year, and following such adjustment the TIF payable with respect to single-family lots within the Property shall remain unchanged during the term of the Development Agreements, as extended.
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10. Additional Agreements With Respect to TIF and Public Facilities Payments. The Parties acknowledge and agree that the following additional agreements have been reached with respect to other fees to be paid by Developer or its successors with respect to the development of the Property:
(a) The TIF payable with respect to multi-family lots within the Property shall be $9,126.40 per lot (the “Multifamily TIF Amount”) and shall not be changed from the Effective Date until the 10th anniversary of the effective date of the ordinance approved by the City to extend the expiration dates of the Development Agreements as contemplated by this Agreement. Following such 10th anniversary, the Multifamily TIF Amount shall be adjusted once, and only once, to a number that represents the halfway point between the Multifamily TIF Amount and the then-applicable TIF for multifamily lots elsewhere in the City that would be otherwise payable during such 11th year, and following such adjustment the TIF payable with respect to multifamily lots within the Property shall remain unchanged during the term of the Development Agreements, as extended.
(b) The Public Facilities charge payable for single-family lots within the Property shall be $3,974.18 per lot (the “SFR Facilities Amount”) and shall not be changed from the Effective Date until the 10th anniversary of the effective date of the ordinance approved by the City to extend the expiration dates of the Development Agreements as contemplated by this Agreement. Following such 10th anniversary, the SFR Facilities Amount shall be adjusted once, and only once, to a number that represents the halfway point between the SFR Facilities Amount and the then-applicable Facilities Amount for single-family lots elsewhere in the City that would be otherwise payable during such 11th year, and following such adjustment the SFR Facilities Amount payable with respect to the Property shall remain unchanged during the term of the Development Agreements, as extended.
(c) The Public Facilities charge payable for multifamily lots within the Property shall be $2,602.16 per lot (the “MF Facilities Amount”) and shall not be changed from the Effective Date until the 10th anniversary of the effective date of the ordinance approved by the City to extend the expiration dates of the Development Agreements as contemplated by this Agreement. Following such 10th anniversary, the MF Facilities Amount shall be adjusted once, and only once, to a number that represents the halfway point between the MF Facilities Amount and the then-applicable Facilities Amount for multifamily lots elsewhere in the City that would be otherwise payable during such 11th year, and following such adjustment the MF Facilities Amount payable with respect to the Property shall remain unchanged during the term of the Development Agreements, as extended.

11. Levee Improvements. For the avoidance of doubt, the provisions of Section 6.D of the Original Agreement shall be of no force or effect whatsoever from and after the Effective Date, so long as and to the extent that the City constructs the East Cypress Improvement rather than Developer, as set forth in this Agreement.
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12. CFD. City will authorize the payment of development impact fees related to the improvements contemplated by the Approvals to be financed as eligible facilities by the creation of a community facilities district (“CFD”). The amounts realized through the formation of such CFD(s) shall not be reduced, notwithstanding City’s commitment to construct and pay for the East Cypress Improvement.

13. TJKM Analysis of Mitigation Measures Under ECCSP. The Parties have agreed that the Developer will pay, concurrently upon the issuance of building permits therefor, the sum of $431 per residential building permit (the “ECCSP Mitigation FS Payments”), as a contribution toward the Mitigation Measures established in connection with the approval or, and CEQA compliance for, the Specific Plan. By accepting the amount of such ECCSP Mitigation FS Payments, the City agrees that the use and development of the Property in accordance with the Approvals will satisfy and required mitigation and “fair share” as set forth in the technical memorandum (the “TJKM Memo”) prepared by TJKM and dated July 21, 2021, and the Property shall be relieved of any obligation to further contribute to mitigation measures (which mitigation measures are for the avoidance of doubt listed in Exhibit C hereto) under the Specific Plan, the Approvals or under that certain Agreement Between Contra Costa County and the City of Oakley Relating to Transition of Municipal Services, Collection of Fees and Maintenance of Infrastructure Upon Annexation of the East Cypress Corridor Specific Plan Area, dated May 9, 2006.

14. No Effect on Approvals or Vested Rights. Nothing in this Agreement is intended to amend, abridge, supersede, or alter any or all of the Developer’s obligations to satisfy the terms and conditions of the Approvals. Nor is anything in this Agreement intended to waive, abandon, or relinquish any or all of Developer’s vested rights in the Approvals.

15. Infrastructure Costs. Developer’s estimated cost to construct the Improvements (as such term is defined in the Original Agreement) has been revised to take into account the City’s construction of the East Cypress Improvement, and that estimated cost, as so revised, is set forth in Exhibit D hereto.

16. Rock Slough Bridge. The Parties have agreed that notwithstanding the definition of the Improvements in the Original Agreement, the City shall use its good faith efforts to analyze and design an alternative access and egress route to the Property that would eliminate the requirement of a bridge over Rock Slough. Upon the successful implementation and approval of such an alternative by all necessary parties, the Developer’s obligations with respect to the Improvements would be modified to remove the cost of constructing such a bridge (identified in Exhibit B to the Original Agreement as $10,272,980.88), and the City will be relieved of any obligation to reimburse the Developer for such costs in excess of the Developer’s Fair Share, as such term is defined in __________________.

17. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which shall constitute one and the same document.

[Signatures on next page]
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IN WITNESS WHEREOF, THE PARTIES HAVE ENTERED INTO THIS AGREEMENT AS OF THE DATE AND YEAR FIRST ABOVE WRITTEN.

CITY OF OAKLEY
_______________________________
Joshua McMurray, City Manager
Approved as to Form:
_________________________________
Derek P. Cole, City Attorney

ACD-TI OAKLEY, LLC,
a Delaware limited liability company
By: TI Capital Management, LLC,
a Delaware limited liability company,
its Sole Member
By ________________________
Name: Ziad Ghandour
Its: Sole Member

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EXHIBIT A
Irrevocable Offer of Dedication

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#226896007v6<ACTIVE> - Superseding Agreement Regarding Reimbursement and Implementation (formerly Mutual Rescission) Agreement 12

EXHIBIT B
Temporary Construction Easement
(Mitigation Measures)

133
#226896007v6<ACTIVE> - Superseding Agreement Regarding Reimbursement and Implementation (formerly Mutual Rescission) Agreement 13

EXHIBIT D
(Estimated Costs)

134

EXHIBIT C
ECCSP Mitigation Measures
MM 3.13-13 (Balfour Road @ Byron Highway IntersecƟon)
MM 3.13-20 (Sellers Avenue @ Delta Road IntersecƟon)
MM 3.13-21 (Knightsen Avenue @ Delta Road IntersecƟon)
MM 3.13-22 (Byron Highway @ Delta Road IntersecƟon)
MM 3.13-23 (Sellers Avenue @ Sunset Road IntersecƟon)
MM 3.13-24 (Sellers Avenue @ Chestnut Avenue IntersecƟon) MM 3.13-25 (Sellers Avenue @ Balfour Road IntersecƟon)
MM 3.13-26 (Byron Highway @ Point of Timber IntersecƟon) MM 3.13-27 (Byron Highway @ Camino Diablo IntersecƟon)
MM 3.13-28 (Bethel Island Road @ Stone Road IntersecƟon) MM 3.13-29 (Byron Highway @ State Route 4 IntersecƟon)
MM 3.13-30 (Sellers Avenue @ Marsh Creek Road IntersecƟon) 135
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EXHIBIT C
136
Project Number
* Project Description * Total Cost TIFF Remaining Payment 5 Bethel Island Road Bridge 10,272,981 2,568,245 7 Jersey Island Road 8,144,277 4,240,100 TOTAL 18,417,258 4,240,100 2,568,245 12,035,616
* Refers to project number and descriptions in Exhibit B of Original Agreement.

City Reimbursement Source

REIMBURSEMENT OBLIGATION

FULL FAIR-SHARE
AMOUNT

EXHIBIT D
Grand Cypress Preserve Infrastructure Costs
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Business Name Primary Contact Email Address Primary Address Phone # Full Primary Address Active Licenses ABENOJA FLOORS [email protected] (925) 752-2629 4859 BAYSIDE WAY OAKLEY CA 94561-3254

BUSINESS LICENSE

ANTHEM YACHT CLUB AND MARINA,
LLC
[email protected]; [email protected];
[email protected]
(970) 669-7777 115 LAURITZEN LN
OAKLEY CA 94561-2946

BUSINESS LICENSE
ECM CARPET CLEANING (925) 759-6874 1550 PORT WAY
OAKLEY CA 94561-1833

HOME BASED BUSINESS LICENSE
FORE GOLF MONEY LLC [email protected] (925) 698-5424 4701 MAIN ST OAKLEY CA 94561

BUSINESS LICENSE
GABRIELS FACILITIES SERVICES [email protected] (925) 481-6006 1300 PORTSMOUTH ST OAKLEY CA 94561

HOME BASED BUSINESS LICENSE
HOUSE OF SHAUN LLC [email protected] (888) 855-2159 264 MERGANSER DR OAKLEY CA 94561

HOME BASED BUSINESS LICENSE
JILLIAN HUNT (JADE & CO) [email protected] (925) 813-0152 3663 MAIN ST OAKLEY CA 94561-5781

BUSINESS LICENSE
LEGAL AND IMMIGRATION CONSULTING [email protected] (925) 238-3331 13 MALICOAT CT OAKLEY CA 94561

HOME BASED BUSINESS LICENSE
LONGARES GLOBAL OPERATIONS, INC [email protected] (909) 464-9100 4510 MAIN ST OAKLEY CA 94561

BUSINESS LICENSE
OAKLEY HPDE (925) 550-6692 500 WOODMONT PL
OAKLEY CA 94561

HOME BASED BUSINESS LICENSE
SPECIAL DREAMS DECOR [email protected] (925) 260-7574 534 LANDIS AVE #4
OAKLEY CA 94561

HOME BASED BUSINESS LICENSE
TRENDING YOUTH, LLC [email protected] (310) 957-0541 51-111 CAROL LN OAKLEY CA 94561

HOME BASED BUSINESS LICENSE
X & C LLC [email protected] (925) 206-7184 2129 EL LAGO DR OAKLEY CA 94561-4163

HOME BASED BUSINESS LICENSE
13 138