AGENDA
CITY OF UNION CITY/
SUCCESSOR AGENCY TO THE REDEVELOPMENT AGENCY MEETING
Tuesday, March 8, 2022
7:00 PM
Held Via Teleconference. To access meeting please see Teleconference Guidelines.
Consistent with California State Assembly Bill 361, the City Council will be participating in public meetings via phone/video conferencing. Please see Teleconferece Guildines to learn how to view or participate in the City Council Meeting
1. CALL TO ORDER
1.a. Pledge of Allegiance
1.b. Roll Call
Mayor Carol Dutra-Vernaci
Vice Mayor Jaime Patiño
Councilmember Emily Duncan
Councilmember Pat Gacoscos
Councilmember Gary Singh
2. UNFINISHED BUSINESS - None
3. PROCLAMATIONS AND PRESENTATIONS
3.a. Proclamation Declaring March as Women's History Month and March 8, 2022 as International Women's Day
4. ORAL COMMUNICATIONS
An individual speaker shall have three minutes to address the Council on non-agenda items under the Oral Communications section of the agenda. The Mayor may, in their discretion, lower the time limit to less than three minutes based on the number of City Council/RSA Agenda 1 Tuesday, March 8, 2022
speakers and/or business to be conducted by the City Council.
Members of the public who wish to speak to the Council under the first Oral Communications section are requested to complete a speaker card, giving their name and city of residence. If a speaker wants further notification from the City, the speaker may include a mailing address. Neither a speaker card or identification of name, city of residence or mailing address are not required to provide public comment but are requested for record keeping purposes.
5. CONSENT CALENDAR
All matters listed on the Consent Calendar are considered routine in nature and will be enacted by one motion. If discussion is required on a specific item, it will be removed from the Consent Calendar and considered separately.
5.a. Waived Further Reading of Proposed Ordinance
(This permits reading the title only in lieu of reciting the entire text of any proposed Ordinance.)
5.b. Approve the Minutes of the City Council Meetings Held on February 15, 2022, February 22, 2022 and February 23, 2022
5.c. Adopt a Resolution Appointing Individuals to Serve on the Arts and Culture Commission, Human Relations Commission,
Senior Commission and the Sales Tax and Utility Users' Tax Oversight Committee
5.d. Adopt A Resolution Authorizing The City Manager To Execute An Agreement With Utility Cost Management LLC For Utility Bill Auditing Services
5.e. Adopt a Resolution Declaring Fire Engine 529 as Surplus and Authorizing its Sale to the Alameda County Fire Department at Market Value for Training Purposes
5.f. Adopt a Resolution Approving an Amendment to The City’s Compensation Plan and Salary Schedule for Multiple
Unrepresented Seasonal and Temporary Positions in
Conformance with California Code of Regulations, Title 2, Section 570.5
5.g. Conduct a Second Reading and Adopt an Ordinance of the City Council of the City of Union City Amending Section 2.26.020 of Chapter 2.26 "Arts & Culture Commission," of the Union City Municipal Code
5.h. Adopt a Resolution Finding That There Is a Proclaimed State of Emergency; Finding That Meeting in Person Would Present Imminent Risks to the Health or Safety of Attendees as a Result of the State of Emergency; and Authorizing Remote
Teleconferenced Meetings of the Legislative Bodies of the City of Union City for the 30 Day Period Beginning March 8 Pursuant to AB 361
City Council/RSA Agenda 2 Tuesday, March 8, 2022
5.i. Adopt a Resolution of the City Council of the City of Union City Confirming the Continued Existence of a Local Emergency Due to COVID-19
6. PUBLIC HEARINGS
6.a. Introduce an Ordinance Approving Development Agreement (DA-22-001) for the Windflower - Block 2 Project, for the Purpose of Extending Project Approvals That Were Previously Approved by the City Council on November 14, 2017
6.b. Public Hearing to Receive Community Input Regarding Boundaries for District-Based Elections Pursuant to Elections Code Section 21607.1 (4th Hearing) and Adopt an Ordinance of the City Council of the City of Union City Adopting the Final Map of District Boundaries for District-Based Elections of
Councilmembers in Accordance with the Redistricting Process for the 2020 Federal Decennial Census, and Amending Union City Municipal Code Section 2.04.510 - Start Time at 7:30 p.m.
7. CITY MANAGER REPORTS - None
8. SUCCESSOR AGENCY TO REDEVELOPMENT AGENCY -
None
9. AUTHORITIES AND AGENCIES - None
10. CITY COMMISSION / COMMITTEE REPORTS - None
11. SCHEDULED ORAL COMMUNICATION - None
12. ITEMS REFERRED BY COUNCIL
13. GOOD OF THE ORDER
14. CLOSED SESSION - None
15. ADJOURNMENT
A complete agenda packet is available for review at City Hall or on our website www.unioncity.org
Any writings or documents provided to a majority of City Council members regarding any item on this agenda will be made available for public inspection at the City Clerk's Counter at City Hall, located at 34009 Alvarado-Niles Road, Union City, California, during normal business hours.
Assistance will be provided to those requiring accommodations for disabilities in compliance with the Americans with Disabilities Act of 1990.
Interested person must request the accommodation at least two working days in advance of the meeting by contacting the City Clerk at (510) 675- 5348.
TELECONFERENCING GUIDELINES FOR THE CITY OF UNION CITY REGULAR COUNCIL City Council/RSA Agenda 3 Tuesday, March 8, 2022
MEETING
COVID-19 Notice: Consistent with State of California Executive Order No. 29-20 dated March 17, 2020, the City Council will be participating in public meetings via phone/video conferencing. The City Council Chambers will not be open to the public. Members of the public can observe and address the Council using the below technological processes.
How to watch the meeting remotely:
1. Comcast TV Channel 15 (UCTV 15)
2. Live stream https: https://www.unioncity.org/199/City-Meetings-Video How to Address Council:
Written Comment: To provide written comment on an item on the agenda or to address the Council about an issue during Public Comment, you may send an email to [email protected]. Please include the phrase "public comment" in the subject line and note the agenda item number that you want to address. Written comments received before 3:00 p.m. will be e-mailed to the City Council and made publicly available. Comments received after 3:00 p.m. will be read into the record for up to the first 300 words (approximately 3 minutes consistent with the time limit provided for public speakers) and added to the official record.
Public Comment via Teleconference: Members of the public may address the Council on a matter on the agenda or during the Public Input portion of the meeting. Raise your virtual hand to notify the host that you would like to speak during that portion.
Instructions on Raising your Hand in Zoom Webinar:
1.Click Raise Hand in the webinar controls. The host will be notified that you've raised your hand.
2.If the host allows you to talk, you may be prompted to unmute yourself. While unmuted, your profile picture and name is displayed to the host and panelists. Only your name is displayed to other attendees.
3.Click Raise Hand in the webinar controls to lower it, if needed. This will not mute yourself if you are unmuted.
Zoom Shortcuts:
Windows: You can also use the AltY keyboard shortcut to raise or lower your hand.
Mac: You can also use the OptionY keyboard shortcut to raise or lower your hand.
Please click the link below to join the webinar:
http://citycouncil-live.unioncity.org/
Passcode: Mr6%qH6P
Or Telephone:
Dial (for higher quality, dial a number based on your current location):
US: +1 213 338 8477 or +1 301 715 8592 or +1 408 638 0968 or +1 646 518 9805 Webinar ID: 928 8582 6000
Passcode: 52282697
City Council/RSA Agenda 4 Tuesday, March 8, 2022
ADA Accessibility: If you require a reasonable modification or accommodation for a disability, please email the
City Clerk at [email protected] a minimum of two (2) business days prior to the Council meeting. 3511412.1
City Council/RSA Agenda 5 Tuesday, March 8, 2022
Agenda Item
ATTACHMENTS:
Description Type
Proclamation Attachment
City Council/RSA Agenda 6 Tuesday, March 8, 2022
City Council/RSA Agenda 7 Tuesday, March 8, 2022
Agenda Item
ATTACHMENTS:
Description Type
Draft 02.15.22 sp Attachment
Draft 02.22.22 sp Attachment
Draft 02.22.22 reg Attachment
Draft 02.23.22 sp Attachment
City Council/RSA Agenda 8 Tuesday, March 8, 2022
MINUTES
CITY OF UNION CITY
CITY COUNCIL /
SPECIAL MEETING
Tuesday, February 15, 2022
6:00 PM
Held Via Teleconference.
1. CALL ORDER
Mayor Dutra-Vernaci called the meeting to order at 6:20 p.m.
1.a. Roll Call Present: Councilmembers Duncan, Gacoscos, Singh, Vice Mayor Patiño, Mayor Dutra-Vernaci
Absent: None
2. ORAL COMMUNICATIONS - None
3. BOARD AND COMMISSION INTERVIEWS
City Council conducted interviews of the following individuals:
3.a. Senior Commission (1 term expiration, 2 alternate vacancies) None
3.b. Human Relations Commission (4 term expirations, 1 vacancy) Charanjit Sahota
3.c. Planning Commission (3 term expirations, 1 full seat vacancy, 1 alternate vacancy)
Amandeep Sandhu Bhullar
Seyi Mcclelland
Ed Agbuya
Babar Mohammad
Kyle Shanks
City Council/RSA Agenda 9 Tuesday, March 8, 2022
Following discussion, Mayor Dutra-Vernaci stated formal appointments will be put forth and adopted by Resolution at the Regular City Council meeting of February 22, 2022.
4. ADJOURNMENT
Mayor Dutra-Vernaci adjourned the meeting at 8:45 p.m.
Respectfully submitted,
Anna M. Brown, CMC
City Clerk
City Council/RSA Agenda 10 Tuesday, March 8, 2022
MINUTES
CITY OF UNION CITY
CITY COUNCIL SPECIAL MEETING
Tuesday, February 22, 2022
6:00 PM
Held Via Teleconference.
1. CALL TO ORDER
Mayor Dutra-Vernaci called the meeting to order at 6:00 p.m.
Roll Call Present: Councilmembers Duncan, Gacoscos, Singh, Vice Mayor Patiño, Mayor Dutra-Vernaci
Absent: None
2. ORAL COMMUNICATIONS – None
3. CLOSED SESSION
3.a. CONFERENCE WITH LABOR NEGOTIATORS
Gov. Code Section 54957.6
Agency designated representative:
Lilybell Nakamura, Chief Human Resources
Officer Jeff Bailey, IEDA Representative
Employee organization:
Management Employees Group (MEG)
Professional Employees Group (PEG)
Service Employees International Union, Local 1021 (SEIU) Unrepresented employees:
Employees subject to the Compensation and Benefit Plan
for Unrepresented Employees
Chief of Police
4. ADJOURNMENT
City Council/RSA Agenda 11 Tuesday, March 8, 2022
Mayor Dutra-Vernaci adjourned the meeting at 6:15 p.m. with no reportable action.
Respectfully submitted,
Anna M. Brown, CMC
City Clerk
City Council/RSA Agenda 12 Tuesday, March 8, 2022
MINUTES
CITY OF UNION CITY/
SUCCESSOR AGENCY TO THE REDEVELOPMENT AGENCY MEETING
Tuesday, February 22, 2022
7:00 PM
Held Via Teleconference
Consistent with California State Assembly Bill 361, the City Council participated in the public meeting via phone/video conferencing.
1. CALL TO ORDER
Mayor Dutra-Vernaci called the meeting to order at 7:00 p.m.
1.a. Pledge of Allegiance –
Mayor Dutra-Vernaci waived the pledge as the meeting was virtual.
1.b. Roll Call Present: Councilmembers Duncan, Gacoscos, Singh, Vice
Mayor Patiño, Mayor Dutra-Vernaci
Absent: None
2. UNFINISHED BUSINESS - None
3. PROCLAMATIONS AND PRESENTATIONS
3.a. Proclamation Recognizing February as Teen Dating Violence Awareness Month
Mayor Dutra-Vernaci read the proclamation aloud and presented it to Maya Granera, Prevention Advocate for Safe Alternatives to Violent Environments (SAVE).
4. ORAL COMMUNICATIONS
4.a. Written Public Comment (Attachment A)
City Council/RSA Agenda 13 Tuesday, March 8, 2022
5. CONSENT CALENDAR
It was moved by Councilmember Duncan and seconded by Councilmember Gacoscos to adopt consent calendar items 5.a. through 5.f. The motion was carried by unanimous roll call vote.
5.a. Waived Further Reading of Proposed Ordinance
(This permits reading the title only in lieu of reciting the entire text of any proposed Ordinance.)
5.b. Approved the Minutes of the City Council meetings held on February 8, 2022
5.c. Adopted Resolution No. 5894-22 Authorizing Signatories and Funds Transfers for Fremont Bank Accounts
5.d. Adopted Resolution No. 5895-22 Authorizing Submittal of a Grant Application to CalRecycle for $96,476 for SB 1383 Funds for Which the City of Union City is Eligible
5.e. Adopted Resolution No. 5896-22 Authorizing City Staff to File Annual Funding Applications with the Metropolitan Transportation Commission for Allocation of Funds for the Operation of Union City Transit and Paratransit for Fiscal Year 2021-2022
5.f. Adopted Resolution No. 5897-22 Appointing Individuals to Serve on the Human Relations Commission, Parks and Recreation Commission, Planning Commission and Senior Commission
Items 7.b. through 7.d. were heard prior to Item 6.a. to comply with the posted Public Hearing start time of 7:30 p.m.
7. CITY MANAGER REPORTS
7.b. Adopt a Resolution Approving an Amendment to the Classification Plan and Amending the Compensation and Benefit Plan for Unrepresented Employees to Create the Position of Information Technology Director and Approving an Amendment to the City's Compensation Plan and Salary Schedule in Conformance with California Code of Regulations, Title 2, Section 570.5 City Manager Malloy presented the staff report detailing the need for the position description, responsibilities, and the compensation plan and benefits.
City Manager Malloy responded to questions from Council. Councilmembers provided comment.
It was moved by Vice Mayor Patiño and seconded by Councilmember Duncan to adopt Resolution No. 5898-22 Approving an Amendment to the Classification Plan and Amending the Compensation and Benefit Plan for Unrepresented Employees to Create the Position of Information Technology Director and Approving an Amendment to the City's Compensation Plan and Salary Schedule in Conformance with California Code of Regulations, Title 2, Section 570.5. The motion was carried by unanimous roll call vote.
City Council/RSA Agenda 14 Tuesday, March 8, 2022
7.c. Waive Full Reading and Introduce By Title Only an Ordinance of the City Council of the City of Union City Amending Section 2.26.020 of Chapter 2.26, "Arts & Culture Commission," of the Union City Municipal Code City Attorney Kokotaylo presented the staff report and responded to questions from Council. Councilmembers provided comment.
It was moved by Councilmember Singh and seconded by Councilmember Gacoscos to waive full reading and introduce by title only an Ordinance of the City Council of the City of Union City amending Section 2.26.020 of Chapter
2.26, "Arts & Culture Commission," of the Union City Municipal Code. The motion was carried by unanimous roll call vote.
7.d. Adopt a Resolution of the City Council of the City of Union City Approving an Employment Agreement with Jared Rinetti as Police Chief and Approving an Amendment to the City's Salary Schedule in Conformance with California Code of Regulations, Title 2, Section 570.5
City Attorney Kokotaylo presented the staff report. There were no questions or comments from Council.
It was moved by Vice Mayor Patiño and seconded by Councilmember Gacoscos to adopt Resolution No. 5899-22 Approving an Employment Agreement with Jared Rinetti as Police Chief and Approving an Amendment to the City's Salary Schedule in Conformance with California Code of Regulations, Title 2, Section 570.5. The motion was carried by unanimous roll call vote.
6. PUBLIC HEARINGS (7:30 p.m.)
6.a. Public Hearing to Receive Community Input Regarding District Boundaries for District-Based Elections Pursuant to Elections Code Section 21607.1 (3rd Hearing) and Introduce an Ordinance of the City Council of the City of Union City Adopting the Final Map of District Boundaries for District-Based Elections of Councilmembers in Accordance with the Redistricting Process for the Federal Decennial Census, and Amending Union City Municipal Code Section
2.04.510 - Start Time at 7:30 p.m.
City Attorney Kokotaylo provided a summary of the redistricting process completed thus far and introduced consultant Robert McEntire of National Demographics Corporation.
Mr. McEntire reviewed the draft district maps and demographic data considered thus far and presented a new draft map with demographic data, Map 201b. Mr. McEntire responded to questions from Council.
Mayor Dutra-Vernaci opened the public hearing.
Public comment was provided by Jugraj Singh.
Councilmembers provided comment. Following discussion, Council consensus was to introduce Draft Map 201 for adoption.
City Council/RSA Agenda 15 Tuesday, March 8, 2022
It was moved by Councilmember Duncan and seconded by Councilmember Gacoscos to introduce an Ordinance Adopting Map 201 as the Final Map of District Boundaries for District-Based Elections of Councilmembers in Accordance with the Redistricting Process for the Federal Decennial Census, and Amending Union City Municipal Code Section 2.04.510. The motion was carried by unanimous roll call vote.
7. CITY MANAGER REPORTS (continued)
7.a. Accept the Ad Hoc Subcommittee's Recommendations to Proceed with a Community Survey for the Extension of the One-Half Cent Sales Tax and to Continue the Analysis of a Proposed Update to the Business License Tax (BLT) for Consideration at a Future Election Cycle
City Manager Malloy presented the staff report and responded to questions from Council. Councilmembers provided comment. Subcommittee recommendations were:
• Slower path on BLT updates
• Collect data
• Prepare modeling to match economic development goals
• Outreach to businesses
• Target 2024 election cycle
• Survey community for ½ cent sales tax extension
Vice Mayor Patiño requested a survey on a ¼ cent sales tax in addition to the recommended survey.
It was moved by Councilmember Gacoscos and seconded by Mayor DutraVernaci to accept the Ad Hoc Subcommittee's Recommendations to Proceed with a Community Survey for the Extension of the One-Half Cent Sales Tax and to Continue the Analysis of a Proposed Update to the Business License Tax (BLT) for Consideration at a Future Election Cycle. The motion was carried by the following roll call vote:
AYES: Councilmembers Duncan, Gacoscos, Singh, Mayor DutraVernaci NOES: Vice Mayor Patiño
ABSTAIN: None
ABSENT: None
8. SUCCESSOR AGENCY TO REDEVELOPMENT AGENCY - None
9. AUTHORITIES AND AGENCIES - None
10. CITY COMMISSION / COMMITTEE REPORTS - None
11. SCHEDULED ORAL COMMUNICATION - None
12. ITEMS REFERRED BY COUNCIL
Vice Mayor Patiño reported on his attendance of the East Bay Community Energy Committee, the League of California Cities, and the Alameda County Waste Management Authority.
City Council/RSA Agenda 16 Tuesday, March 8, 2022
Councilmember Singh reported on his attendance of the Union City Youth Commission meeting.
Councilmember Duncan reported on her attendance of a special meeting of the City Council for Board and Commission interviews and a meeting of the Union City Parks and Recreation Commission.
Councilmember Gacoscos reported on her attendance of a meeting of the Alameda County Housing Authority.
13. GOOD OF THE ORDER
Vice Mayor Patiño stated he was a panelist on a recruitment webinar for the National League of Cities, that he attended a webinar of the Latino Caucus for the League of California Cities (LOCC) and that he gave a legislative policy update to the LOCC East Bay Division meeting.
Councilmember Gacoscos stated that the Sister Cities Festival will happen this year.
The Committee will meet the second week of March to start planning.
Mayor Dutra-Vernaci reported on a meeting she attended a presentation given by Alameda County on the Home Together Plan and implementation. There is an upcoming meeting on February 24 between the Alameda County Board of Supervisors and Alameda County Mayors regarding the same. The presentation will come before Council at a future date.
14. CLOSED SESSION - None
15. ADJOURNMENT
Mayor Dutra-Vernaci adjourned the meeting at 9:04 p.m.
Respectfully submitted,
Anna M. Brown, CMC
City Clerk
City Council/RSA Agenda 17 Tuesday, March 8, 2022
MINUTES
CITY OF UNION CITY
CITY COUNCIL
SPECIAL MEETING
Wednesday, February 23, 2022
6:00 PM
Held Via Teleconference.
1. CALL TO ORDER
Mayor Dutra-Vernaci called the meeting to order at 6:04 p.m.
1.a. Roll Call Present: Councilmembers Duncan, Gacoscos, Singh, Vice Mayor Patiño*, Mayor Dutra-Vernaci
*arrived at 6:11 p.m.
Absent: None
2. ORAL COMMUNICATIONS - None
3. BOARD AND COMMISSION INTERVIEWS
City Council conducted interviews of the following individuals:
3.a. Senior Commission (1 term expiration, 2 alternate vacancies) Teresita Zurbano
3.b. Arts and Culture Commission (2 vacancies)
Jenny Aguilar
Sudipta Chatterjee
Mary Ines
Anish Mohanty
Rene Payomo
City Council/RSA Agenda 18 Tuesday, March 8, 2022
3.c. Human Relations Commission (4 term expirations, 1 vacancy) Ramapreet Singh
Following discussion, Mayor Dutra-Vernaci stated formal appointments will be put forth and adopted by Resolution at the Regular City Council meeting of March 8, 2022.
4. ADJOURNMENT
Mayor Dutra-Vernaci adjourned the meeting at 8:21 p.m.
Respectfully submitted,
Anna M. Brown, CMC
City Clerk
City Council/RSA Agenda 19 Tuesday, March 8, 2022
Agenda Item
DATE: 3/8/2022
TO: HONORABLE MAYOR AND CITY COUNCIL
FROM: ANNA M. BROWN, CITY CLERK
SUBJECT: ADOPT A RESOLUTION APPOINTING INDIVIDUALS TO SERVE ON THE
ARTS AND CULTURE COMMISSION, HUMAN RELATIONS
COMMISSION, SENIOR COMMISSION, AND THE SALES TAX AND
UTILITY USERS’ TAX OVERSIGHT COMMITTEE
A Resolution has been prepared to confirm the Mayor's appointments of individuals to serve on the Arts and Culture Commission, Human Relations Commission, Senior Commission and the Sales Tax and Utility Users' Tax Oversight Committee.
STRATEGIC PLAN ALIGNMENT
There is no strategic plan alignment associated with this action.
BACKGROUND
A recruitment process was initiated for the term expirations and existing vacancies on aforementioned commissions. Interested parties were asked to submit applications to the City Clerk. Councilmembers conducted interviews on February 15, 2022 and February 23, 2022.
DISCUSSION
Board, commission, and committee members are appointed by the Mayor with approval of the City Council.
At the request of Mayor Dutra-Vernaci, a resolution has been prepared appointing/reappointing the following individuals:
Arts and Culture Commission
Appoint Mary Ines to a 4-year term, expiring March 8, 2026 Appoint Sudipta Chatterjee to a 4-year term, expiring March 8, 2026 City Council/RSA Agenda 20 Tuesday, March 8, 2022
Human Relations Commission
Appoint Babar Mohammad to a 4-year term, expiring March 8, 2026 Senior Commission
Appoint Teresita Zurbano as Alternate Commissioner to a 4-year term, expiring March 8, 2026 Sales Tax And Utility Users’ Tax Oversight Committee
Appoint Seyi Mclelland to the remaining term left by the resignation of Ray Gonzales Jr., expiring March 23, 2023
FISCAL IMPACT
The City provides a stipend of $39 per meeting, up to $78 per month, for each meeting attended by Commissioner or Alternate Commissioner, with exception of the Arts and Culture Commission and the Sales Tax And Utility Users’ Tax Oversight Committee. Funds were appropriated with the adoption of the current budget to support the payment of meeting stipends.
RECOMMENDATION
Staff recommends City Counciladopt the Resolution as submitted, appointing individuals to serve on the Arts and Culture Commission, Human Relations Commission, Senior Commission and the Sales Tax and Utility Users' Tax Oversight Committee.
Prepared by:
Anna M. Brown, City Clerk
Submitted by:
Anna M. Brown, CIty Clerk
ATTACHMENTS:
Description Type
Resolution - Commissions, Boards, CommitteeAppointments Resolution City Council/RSA Agenda 21 Tuesday, March 8, 2022
RESOLUTION NO. XXXX-22
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF UNION CITY APPOINTING
INDIVIDUALS TO SERVE ON THE ARTS & CULTURE COMMISSION, HUMAN
RELATIONS COMMISSION, SENIOR COMMISSION AND THE SALES TAX AND UTILITY USERS’ TAX OVERSIGHT COMMITTEE
WHEREAS, a recruitment process was initiated for the term expirations and existing vacancies on the Arts and Culture Commission, Human Relations Commission, the Senior Commission and the Sales Tax And Utility Users’ Tax Oversight Committee; and WHEREAS, interested parties were asked to submit applications to the City Clerk and the Council conducted interviews on February 15 and February 23, 2022; and WHEREAS, board, commission, and committee members are appointed by the Mayor with approval of the City Council.
NOW, THEREFORE, BE IT RESOLVED THAT, the following individuals are appointed as follows:
Arts and Culture Commission
Appoint Mary Ines to a 4-year term, expiring March 8, 2026 Appoint Sudipta Chatterjee to a 4-year term, expiring March 8, 2026 Human Relations Commission
Appoint Babar Mohammad to a 4-year term, expiring March 8, 2026 Senior Commission
Appoint Teresita Zurbano as Alternate Commissioner to a 4-year term, expiring March 8, 2026
Sales Tax And Utility Users’ Tax Oversight Committee
Appoint Seyi Mclelland to the remaining term left by the resignation of Ray Gonzales Jr., expiring March 23, 2023
AYES:
NOES:
ABSENT:
ABSTAIN:
CAROL DUTRA-VERNACI
Mayor
ATTEST: APPROVED AS TO FORM:
ANNA M. BROWN KRISTOPHER J. KOKOTAYLO
City Clerk City Attorney
City Council/RSA Agenda 22 Tuesday, March 8, 2022
Agenda Item
DATE: 3/8/2022
TO: HONORABLE MAYOR AND CITY COUNCIL
FROM: JACKIE ACOSTA, FINANCE DIRECTOR
SUBJECT: ADOPT A RESOLUTION AUTHORIZING THE CITY MANAGER TO
EXECUTE AN AGREEMENT WITH UTILITY COST MANAGEMENT LLC
FOR UTILITY BILLAUDITING SERVICES
Staff recommends that the City Council adopt a resolution authorizing the City Manager to execute an agreement with Utility Cost Management LLC for utility billauditing services.
STRATEGIC PLAN ALIGNMENT
GoalA: Financial Stability and Sustainability - to foster fiscal health through disciplined long-term planning, heightened efficiency, increased revenue, and cost recovery.
BACKGROUND
Utility Cost Management LLC (UCM) is a company that analyzes utility bills of cities and private companies and seeks to recover overcharges and identify possible future savings on the client’s behalf. To do so, UCM constantly monitors developments in the regulatory environment to ensure that utility bills are in line with the latest regulations and interpretive decisions. With this understanding, UCM analyzes utility usage data from meters and utility bills to determine if a utility user is overpaying, and then works with the utility companies to secure refunds and lower rates. Since 1991, UCM has generated over $250 million in refunds and savings for a variety of clients, including for-profit enterprises, public entities, and educational institutions.
City staff met with UCM to discuss the possible engagement of their firm to conduct a utility usage analysis for Union City. After further discussion among staff, it was staff’s consensus that the City should contract with UCM to perform the analysis of Union City utility bills. The City council is asked to adopt a resolution that authorizes the City Manager to execute an agreement with UCM to begin ta utility billanalysis for the City.
DISCUSSION
City Council/RSA Agenda 23 Tuesday, March 8, 2022
UCM will gather and organize historical billing information on the City’s utility accounts, which may include, but is not limited to, electricity, gas, water, sewer and refuse collection accounts. UCM willanalyze the bills and will submit a report summarizing the findings of its review, including incorrect rates charged to the City and areas of possible future savings. The report will describe the grounds for seeking refunds and savings opportunities identified for each account. UCM will prepare all forms required to initiate changes to the utility accounts and will take all the necessary steps to assist the City in implementing recommended changes to reduce future costs. UCM will prepare documentation and meet with utility company personnel to discuss each request. UCM will negotiates with utility authorities to ensure that refund calculations are acceptable and are paid in a timely manner. Once rate changes or refunds have been approved, UCM will notify City staff.
UCM does not charge up-front fees or deposits; rather, their compensation is structured as a percentage of actual savings realized, after clients receive their savings. Therefore, if their analysis does not generate any refunds or cost savings, the City pays nothing to UCM.
If any refunds are issued or future savings can be realized, UCM would be paid 42% of the refund amount and 42% of the future savings it realizes for the City for a period of three years. After the three-year period, the City receives 100% of the savings.
FISCAL IMPACT
Unknown at this time, however, errors found that result in refunds or future savings will be shared with UCM.
Refunds will be split 42% (UCM) / 58% (City). Future savings will be split in the same manner for three years.
RECOMMENDATION
Staff recommends that the City Council adopt a resolution authorizing the City Manager to execute an agreement with Utility Cost Management LLC for utility billauditing services.
Prepared by:
Jonathan Segarra, Management Analyst II, City Manager’s Office Submitted by:
Jonathan Segarra, Management Analyst II, City Manager’s Office ATTACHMENTS:
Description Type
Resolution - Utility Audit Resolution
Exhibit A - Proposed Scope of Work and Compensation Schedule Exhibit City Council/RSA Agenda 24 Tuesday, March 8, 2022
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF UNION CITY
AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT WITH
UTILITY COST MANAGEMENT LLC (UCM) FOR UTILITY BILL AUDITING
SERVICES
WHEREAS, Union City adopted a five-year strategic plan in September 2019 to establish goals and strategies to guide the City Council's agenda, which includes Goal A: Financial Stability and Sustainability - to foster fiscal health through disciplined long-term planning, heightened efficiency, increased revenue, and cost recovery; and
WHEREAS, City staff met with Utility Cost Management LLC (UCM) to discuss the possible engagement of their firm to conduct a utility bill analysis; and WHEREAS, UCM is a company that analyzes utility bills of cities and private companies and seeks to recover overcharges and identify possible future savings on the client’s behalf, cumulatively generating over $250 million in refunds and savings through its expertise with the utility regulatory environment and analysis of utility bill data; and WHEREAS, UCM proposes to conduct an analysis of the City’s historical billing information from the City’s electricity, gas, water, sewer and refuse collection accounts, identifying mistakes and savings, and interpreting utility regulations to ensure the City is not paying more than required; and
WHEREAS, UCM will submit a report summarizing the findings of its review, and an explanation of the grounds for all refunds and savings opportunities identified for each account, including calculations of the estimated refunds and savings expected to be achieved; and WHEREAS, UCM will, upon the City’s authorization, prepare all forms required to initiate changes to the utility accounts and will take all the necessary steps to implement the recommended changes; and
WHEREAS, UCM’s fee compensation is structured as a percentage of actual refunds received or savings realized, after clients receive those refunds or savings. Therefore, if their analysis does not generate refunds or cost savings, the City pays nothing to UCM; and WHEREAS, if any refunds are made to the City by the utility company, the City would pay UCM 42% of the refund amount. If future savings can be realized, UCM would be paid 42% of the savings realized by the City for a period of three years. After the three-year period, the City would realize 100% of the ongoing savings.
NOW THEREFORE, BE IT RESOLVED that the City Council does hereby authorize the City Manager to execute an agreement, in a form approved by the City Attorney, with Utility Cost Management, LLC, for utility bill auditing services, as described in Exhibit A – Proposed Scope of Work and Compensation Schedule.
City Council/RSA Agenda 25 Tuesday, March 8, 2022
BE IT FURTHER RESOLVED, that the agreement will authorize UCM to access the City’s utility bills and obtain information relating to the City’s utility accounts directly from the utility provider.
BE IT FURTHER RESOLVED, that the agreement will authorize UCM to act on the City’s behalf to obtain any refunds, credits or future savings identified through their analysis, upon approval by the City.
PASSED, APPROVED, AND ADOPTED by the City Council of the City of Union City at a regular meeting held on the 8
th day of March 2022, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
APPROVED:
CAROL DUTRA-VERNACI
Mayor
ATTESTED: APPROVED AS TO FORM:
_________________________ ___________________________
ANNA M. BROWN KRISTOPHER J. KOKOTAYLO
City Clerk City Attorney
City Council/RSA Agenda 26 Tuesday, March 8, 2022
EXHIBIT A
PROPOSED SCOPE OF SERVICES AND COMPENSATION SCHEDULE
1. Applicable to Client’s Utility Accounts. Unless otherwise stated in an addendum initialed by both parties, this Scope of Services and Compensation Schedule will apply to all water, sewer, garbage, gas, and electricity accounts (and any related utility user taxes, other taxes, assessments, surcharges, or fees) with respect to which Client:
(a) is receiving utility service as of the Effective Date (as defined below), (b) has received utility service within three years prior to the Effective Date, (c) receives utility service within one year after the Effective Date, or (d) has permitted or authorized UCM to obtain a copy of the utility bill.
The water, sewer, garbage, gas, and electric accounts described in this paragraph are hereinafter referred to as “Utility Accounts”. The “Effective Date”, as that term is used above, is the first day of the calendar month after both UCM and Client have signed this Agreement.
2. Client to Provide Utility Bills. On or promptly after Client’s execution of this Agreement, Client will provide UCM with a copy of at least one month’s utility bills for all of Client’s Utility Accounts.
3. UCM Authorized to Obtain Information on Utility Accounts. UCM is hereby authorized to obtain information relating to the Utility Accounts directly from utility provider personnel and utility provider web sites. If site visits are necessary, UCM will first obtain proper authorization.
4. UCM’s Findings Letter. UCM will use its best efforts to identify the basis for any refunds, credits, or Future Savings (as defined below) on Client’s Utility Accounts. UCM will send one or more a “Findings Letters” to Client that generally sets forth the basis for any refunds, credits or Future Savings identified by UCM. UCM may, from time to time, supplement or amend the Findings Letter.
5. Steps to Obtain Refunds or Savings. UCM is authorized by Client to take steps to obtain the refunds, credits or Future Savings identified in the Findings Letter. Such steps may include, but are not limited to, communicating, negotiating, and dealing with utility providers (or, in the case of utility user taxes or other governmental charges, the appropriate government entity), and seeking relief from the California Public Utilities Commission in a complaint proceeding or other proceeding.
6. Cooperation By Client. Client will cooperate with UCM, as reasonable, in UCM’s efforts to carry out the purposes and intent of this Agreement. Such cooperation will include, but not be limited to, providing information upon request by UCM concerning Client’s utility expenditures, utility service and operations.
7. UCM’s Compensation.
UCM’s compensation will consist of the amounts set forth in both (a) and (b) below. (a) Refunds or Credits. If Client receives a refund or credit that was identified in the Findings Letter, then Client will pay to UCM 42% of the amount refunded or credited. The amount of the refund or credit for this purpose will include all amounts refunded or credited (including any portion attributable to interest) for any overcharges that were incurred by Client prior to the date that the overcharges no longer appeared on the Client’s utility bill. Payment of UCM’s 42% compensation is due within 30 days of the date UCM mails an invoice to Client.
City Council/RSA Agenda 27 Tuesday, March 8, 2022
(b) Future Savings. If Client obtains Future Savings that were identified in the Findings Letter, then Client will pay UCM 42% of such Future Savings that accrue during a Three-year Savings Period. “Future Savings” is the amount by which Client's charges on its Utility Accounts are reduced as a result of a change in the billing rate, calculation, method, or procedure. Future Savings will be calculated as the difference between the amount Client was billed on its Utility Accounts during the Three-year Savings Period, and the amount that it would have been billed on its Utility Accounts during the Three-year Savings Period if there had been no change in its billing rate, calculation, method, or procedure. The Three-year Savings Period begins on the date that the change in the billing rate, calculation, method, or procedure is first reflected on Client’s utility bill and ends three years thereafter. UCM will submit invoices periodically to Client for payment based on the Future Savings as they accrue. The invoices will verify (a) that Future Savings have actually been realized by Client, and (b) the amount of such Future Savings. Payment of UCM’s invoices is due within 30 days of the date the invoices are mailed to Client. The compensation under this subparagraph will not include compensation for Future Savings that are: (a) the result of a reduction in the amount of utility usage by Client, or (b) the result of Client’s utilization of a different utility supplier that provides lower cost utility service.
(c) Client’s Prior Knowledge of Basis For Refund, Credit, or Future Savings. Client is not obligated to pay UCM pursuant to this paragraph for any refund, credit or Future Savings received by Client for which Client had submitted to the utility provider a written claim prior to the date of UCM’s Findings Letter. However, Client is obligated to pay UCM pursuant to this paragraph whether or not Client knew of the basis for the refund, credit, or Future Savings prior to the date of UCM’s Findings Letter, and whether or not Client’s receipt of the refund, credit or Future Savings was the result of steps taken by UCM or others, including attorneys.
8. No Legal Services. Client acknowledges and understands that: (1) Only an attorney can provide legal services or advice, (2) UCM is not an attorney or law firm, and does not and will not provide legal services or advice, (3) UCM does not and will not act as an attorney for Client or any other person, (4) Nothing in this Agreement, and no act, omission or statement by UCM, or its owners or employees, will be construed to create an attorney-client relationship between UCM and Client or any other person, (5) UCM is not subject to the California Rules of Professional Conduct, which govern the conduct of attorneys, and (6) Client should consult an attorney if it wishes to receive legal services or advice.
9. Disclosure of Information. UCM may obtain information that pertains to Client’s business, operations, or affairs, including but not limited to its utility charges and utility usage. Client expressly authorizes UCM to use and disclose such information to others as necessary or convenient to carry out the services contemplated by this Agreement.
10. Release of Claims Against UCM. Client acknowledges and agrees that UCM has made no express or implied representation or warranty that it will be successful in identifying or obtaining any refunds, credits, or Future Savings on Client’s Utility Accounts. Client hereby covenants not to bring any action for damages against UCM that is based upon or relates to any failure by UCM to identify or obtain refunds, credits, or Future Savings to which Client was or is entitled.
11. Representations Made By Client. It may become necessary for Client to make certain representations to the utility provider or other entity in order obtain refunds, credits or Future Savings identified by UCM in its Findings Letter. Client hereby warrants that any such representations made by Client will be true and correct in all respects.
12. Late Payment Penalty. If payment of any invoice is not received by UCM within 30 days of the date the invoice was mailed, then interest on the amount owing will accrue, beginning on the 31st day after City Council/RSA Agenda 28 Tuesday, March 8, 2022
the invoice was mailed to Client, at the rate of 1% per month (prorated on a daily basis). In addition, if any payment is not received by UCM within 60 days of the date the invoice was mailed to Client, then a fee equal to 5% of the amount owing (including any accrued interest) will be imposed on the 61st day after the invoice was mailed. Interest will continue to accrue at 1% per month (prorated on a daily basis) on the entire amount due until paid in full.
City Council/RSA Agenda 29 Tuesday, March 8, 2022
Agenda Item
DATE: 3/8/2022
TO: HONORABLE MAYOR AND CITY COUNCIL
FROM: JOAN MALLOY, CITY MANAGER
SUBJECT: ADOPT A RESOLUTION DECLARING FIRE ENGINE 529 AS SURPLUS
AND AUTHORIZING ITS SALE TO THE ALAMEDA COUNTY FIRE
DEPARTMENT AT MARKET VALUE FOR TRAINING PURPOSES
Staff recommends that the City Council adopt a resolution declaring as surplus Fire Engine 529 and authorizing its sale to the Alameda County Fire Department (ACFD) for training purposes. Applicable equipment from Engine 529 will be transferred to Engine 531, which will be removed from service and placed in reserve at Fire Station No. 31 until new apparatuses are acquired.
STRATEGIC PLAN ALIGNMENT
There is no specific alignment with the Strategic Plan.
BACKGROUND
Union City contracts with ACFD for fire protection services. ACFD provides 24/7 staffing for all of the fire stations; the City is responsible for the fire station facilities and fire equipment, including all fire apparatuses (fire engines and trucks). ACFD provides all maintenance and repair services for the fire apparatuses as part of the fire service contract.
Staff works with ACFD to identify the future needs for fire equipment and apparatuses. Two fire engines have exceeded their useful life – Engine 531 and Engine 529. With the closure of Fire Station 30, the City is able to remove these two engines from service without any immediate impact to the Union City fleet of fire apparatus.
However, there are three more apparatuses that are at, or over, 20 years of service and will need to be addressed in the next few years. These apparatuses include Engine 32, Engine 332, and Engine 333.
Attachment 1 is a memo from ACFD that identifies the City’s needs for fire apparatuses and includes a list of the fleet with information about the age, mileage, and expected retirement of each unit. The cost to replace the three apparatuses is expected to be approximately $2 million. These expenses have not been budgeted at this time.
City Council/RSA Agenda 30 Tuesday, March 8, 2022
DISCUSSION
Working with ACFD staff, fire apparatuses are evaluated for ongoing use. As part of the City’s vehicle and equipment replacement program, staff determined that the equipment listed below is no longer practical for daily, municipal use. Both fire engines are over 20 years old and have high mileage.
ENGINE UNIT DEPT YEAR AGE MAKE MODEL MILEAGE ACTION
531 235 FIRE 2000 22 PIERCE DASH ENGINE 94,964 RESERVE
529 236 FIRE 2000 22 PIERCE DASH ENGINE 134,730 SURPLUS Given the age and mileage of the fire engines, their continued utilization in the City’s fleet is not recommended.
Older equipment typically has higher maintenance costs and reliability issues. Union City Municipal Code Section 2.32.250 provides the means and method for disposal of surplus equipment.
In consultation with ACFD, staff recommends that Fire Engine 529 be identified as surplus and sold to ACFD for their training program; ACFD would assume all responsibility for the engine. Applicable fire equipment would be removed from Engine 529 and transferred to Engine 531 to be used as a reserve fire engine that would initially be stationed at Fire Station No. 31. The estimate fair market value of Engine 529 is $5,000 - $7,000.
Staff will facilitate a direct sale to ACFD consistent with Union City Municipal Code Section 2.32.250 which would be at market rate and support the training of ACFD staff who directly service Union City.
FISCAL IMPACT
The proceeds from the sale of Engine 529 to ACFD will result in the amount of approximately $7,000 being deposited into the Garage Equipment Replacement Fund (Fund 6122), to be available for future vehicle and equipment replacements.
There is no immediate need to replace Engine 529 or Engine 531. However, there are three apparatuses that should be retired over the next three years. Replacement costs for these apparatuses is approximately $2 million. This cost is not part of the City’s current budget planning.
RECOMMENDATION
Staff recommends that the City Counciladopt a resolution declaring Fire Engine 529 as surplus and authorizing its sale to the Alameda County Fire Department at market value for training purposes with proceeds to be deposited into the Garage Equipment Replacement Fund (Fund 6122).
Applicable equipment from Engine 529 will be transferred to Engine 531, which will be removed from service and placed in reserve.
City Council/RSA Agenda 31 Tuesday, March 8, 2022
Prepared by:
Bob Calderon, Fleet Supervisor
Submitted by:
Marilou Ayupan, Public Works Director
ATTACHMENTS:
Description Type
Attachment 1a - Memo fromACFD Attachment
Attachment 1b - Summary of Union City Apparatus Attachment Resolution - Surplus Fire Engine 529 Resolution
City Council/RSA Agenda 32 Tuesday, March 8, 2022
The comprehensive information below identifies the apparatus replacement schedule established for Union City’s City Council and Public Works Director.
Replacement Apparatus (Recommendations Below in chronological order)
• 1st Engine 32 is at the 15 years of service
• 2nd Engine 332 is over 20 years of service (Replacement Date 12/28/2016) • 3rd Engine 333 is over 20 years of service (Replacement Date 12/28/2016) Projected Financial Cost Per Fire Apparatus (Recommendations Below in chronological order)
• 2024 – Engine 32- ID # 242, Estimated Cost -$920,000
• 2025 – Engine 332 -ID # 234, Estimated Cost - $535,000 • 2026 – Engine 333 -ID # 223, Estimated Cost - $535,000 • 2030 – Engine 33 -ID # 244, Estimated Cost - $920,000 • 2034 – Truck 31-ID # 239, Estimated Cost - $1,500,000 Surplus Apparatus
• Engine 529 We will remove all applicable equipment and transfer it to Engine 531 (UC may choose to donate E29 to the Reserve Firefighter Program to support training. Or ACFD can purchase E29 at the average auction rate from 5,000 – 7,000 dollars for the reserve program).
• Engine 531 Upon receiving additional equipment from Engine 529, this will support establishing Engine 531 as a reserve engine at station 31.
Planning / Forecasting
• Engine 32 the budgeting process should start at the next budgetary cycle and ACFD will provide support in identifying the appropriate apparatus to purchase to support unified fire apparatus specifications.
• The following budgetary cycle Union City should initiate the process to replace Engine 332 or when the financial opportunity exists.
• The following budgetary cycle Union City should initiate the process to replace Engine 333 or when the financial opportunity exists.
City Council/RSA Agenda 33 Tuesday, March 8, 2022
Updates
• Engine 332 & Engine 333 apparatus has low milage which can support apparatus life for an additional 2- 4 years of service. Its highly recommended to initially replace the type III apparatus in the near future.
• The age of the apparatus will continue to occur maintenance repairs and service cost over time assuming the repairs are minor.
• Major repairs may potentially require Union City to explore purchasing a new Type III sooner, extending to transmission repairs, major engine repairs etc... • ACFD’s Finance Department will provide an accurate financial statement to support budgetary forecasting for fire stations and fire apparatus repairs annually.
City Council/RSA Agenda 34 Tuesday, March 8, 2022
ATTACHMENT 1
UNION CITY FIRE APPARATUS SUMMARY
March 8, 2022
Unit number
ALCO
Identifer Station VIN License #
Years
service Year
Current
Mileage
Current
Hours Age
Service Life
Remaining Replace date
ACTIVE
APPARATUS
234UC E332 32 1HTWEADN83J069446 1126287 15.0 1/1/2002 44098.0 3180.0 19.9 -4.9 12/28/2016 223UC E333 33 1HTWEADN235069443 1126288 15.0 1/1/2002 30260.0 1795.0 19.9 -4.9 12/28/2016 242UC E32 32 4P1CD01H27A007419 1272221 15.0 1/1/2007 126984.0 10156.0 14.9 0.1 12/28/2021 244UC E33 33 4P1BAAGF9GA016344 1471014 15.0 4/26/2016 38627.0 2748.0 5.6 9.4 4/23/2031 239UC T31 31 4P1BCAGF7KA019889 1464582 15.0 1/24/2019 16328.0 1469.0 2.9 12.1 1/20/2034
RESERVE
APPARATUS
Unit number
ALCO
Identifer Station VIN License #
Years
service Year
Current
Mileage
Current
Hours Age
Service Life
Remaining Replace date
237UC E532 32 4P1CP02594A000644 1066903 15 1/1/2000 99428.00 8950.00 21.9 -6.9 12/28/2014 236UC E529 29 4P1CT02S7YA000660 1066902 15 1/1/2000 134730.00 10289.00 21.9 -6.9 12/28/2014 235UC E531 31 4P1CT02504A000659 1066904 15 1/1/2000 94964.00 9164.00 21.9 -6.9 12/28/2014 238UC T531 31 4P1CT025XYA000667 1066901 20 1/1/2000 162550.00 15862.00 21.9 -1.9 12/27/2019 243UC E531 33 4P1CD01H97A007420 1272222 15.0 1/1/2007 108687.0 9116.0 14.9 0.1 12/28/2021 City Council/RSA Agenda 35 Tuesday, March 8, 2022
RESOLUTION NO. _________
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF UNION CITY AUTHORIZING THE CITY MANAGER TO SURPLUS FIRE ENGINE 529 AND
APPROVE ITS SALE TO ALAMEDA COUNTY FIRE DEPARTMENT IN THE AMOUNT OF APPROXIMATELY $7,000 FOR THEIR TRAINING PROGRAM WHEREAS, the Fire Engine 529 has been presented to the City Council to be declared surplus, in accordance with provisions of the City’s Municipal Code Section 2.32.250; and ENGINE UNIT DEPT. YEAR MAKE MODEL AGE VIN MILEAGE NOTES 529 236 FIRE 2000 PIERCE DASH
ENGINE
22 4P1CT0257YA000660 134,730 AGE/MILEAGE
*Fire Apparatus/Engine to be declared surplus because of age and mileage WHEREAS, Alameda County Fire Department has requested that Fire Engine 529 be sold to them for use in their training program instead of disposed of at auction; and WHEREAS, the City Council supports the sale to Alameda County Fire Department for fair market value because it directly benefits the training of the fire department staff that serve Union City; and
WHEREAS, Alameda County Fire Department will remove applicable equipment from Engine 529 and transfer to Engine 531; and
WHEREAS, Engine 531 will be removed from service and used as a reserve fire engine that will initially located at Fire Station No. 31; and NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Union City hereby authorizes the City Manager to surplus Fire Engine 529 and sell it to Alameda County Fire Department in the amount of approximately $7,000 for their training program with proceeds to be deposited into the Garage Equipment Replacement Fund (Fund 6122).
City Council/RSA Agenda 36 Tuesday, March 8, 2022
Agenda Item
DATE: 3/8/2022
TO: HONORABLE MAYOR AND CITY COUNCIL
FROM: JOAN MALLOY, CITY MANAGER
SUBJECT: ADOPT A RESOLUTION APPROVING AN AMENDMENT TO THE CITY’S
COMPENSATION PLAN AND SALARY SCHEDULE FOR MULTIPLE
UNREPRESENTED SEASONALAND TEMPORARY POSITIONS IN
CONFORMANCE WITH CALIFORNIA CODE OF REGULATIONS, TITLE
2, SECTION 570.5
Staff recommends that the City Council approve the changes to the City’s Compensation Plan and Salary Schedule, effective March 21, 2022, for the unrepresented seasonal/temporary positions not subject to the Compensation and Benefits Plan.
STRATEGIC PLAN ALIGNMENT
This action supports Strategy 8 of Goal B, Governance and Organization Effectiveness, by ensuring salaries are competitive in order to recruit, attract and retain talented employees.
BACKGROUND
The unrepresented seasonal/temporary positions include Community and Recreation Services (CRS) Program Manager, Preschool Aide, Preschool Teacher, Program Coordinator, Recreation Aide, Recreation Leader, Seasonal Maintenance Worker, Senior Recreation Leader, Intern, and Project Specialist. These positions are at-will, non-benefited positions that are hired as-needed to provide immediate staffing support to the City and its programs.
The increases to the City’s Compensation Plan and Salary Schedule are consistent with the minimum wage increase for calendar year 2022. In addition, the changes eliminate compaction and provide growth opportunities within the positions.
DISCUSSION
City Council/RSA Agenda 37 Tuesday, March 8, 2022
Effective January 1, 2022, the hourly minimum wage increased from $14.00 to $15.00, an increase of approximately 7.14%. In order to avoid compaction, Step 1 for each of the positions in this group is increased by 7.14%. Additionally, the differential between steps is updated to 5% between each step for consistency. The revised compensation structure for these positions has been developed in order to attract and recruit new candidates and encourage returning employees.
FISCAL IMPACT
The estimated annualcost is $203,000, split between the following three funding sources: Leisure Revolving Fund ~ $162,243 (81%), General Fund ~ $34,051 (17%) and Landscape and Lighting Fund ~ $4,006 (2%).
RECOMMENDATION
Staff recommends that the City Councilapprove the attached resolution to approve an amendment to the City’s Compensation Plan and Salary Schedule, effective March 21, 2022, for the unrepresented seasonal/temporary positions not subject to the Compensation and Benefits Plan.
Prepared by:
Lilybell Nakamura, Chief Human Resources Officer
Submitted by:
Lilybell Nakamura, Chief Human Resources Officer
ATTACHMENTS:
Description Type
Resolution For Unrepresented Salary ScheduleAdjustment 3-8-2022 Resolution Salary Schedule for Unrepresented Seasonaland Temporary Positions
Attachment
City Council/RSA Agenda 38 Tuesday, March 8, 2022
RESOLUTION NO.
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
UNION CITY APPROVING AN AMENDMENT TO THE
CITY’S COMPENSATION PLAN AND SALARY SCHEDULE
FOR MULTIPLE UNREPRESENTED SEASONAL AND
TEMPORARY POSITIONS IN CONFORMANCE WITH
CALIFORNIA CODE OF REGULATIONS, TITLE 2, SECTION
570.5
WHEREAS, effective January 1, 2022, the hourly minimum wage in California increased from $14.00 to $15.00, an increase of approximately 7.14%; and WHEREAS, City staff have evaluated the unrepresented seasonal/temporary positions of: Community and Recreation Services (CRS) Program Manager, Preschool Aide, Preschool Teacher, Program Coordinator, Recreation Aide, Recreation Leader, Seasonal Maintenance Worker, Senior Recreation Leader, Intern, and Project Specialist (the “Unrepresented Positions”); and
WHEREAS, in order to avoid compaction, City staff recommend that step 1 for each of the Unrepresented Positions increase by 7.14% and include a differential between steps to 5% between each step for consistency; and
WHEREAS, the revised salary and compensation structure for the Unrepresented Positions will allow the City to attract and recruit new candidates and encourage returning employees; and
WHEREAS, the City Council has considered the above and has determined that the amendment to the City’s Compensation Plan and salary schedule for the Unrepresented Positions is appropriate.
NOW, THEREFORE, BE IT RESOLVED that the City Council hereby approves an amendment to the City’s Compensation Plan to amend the following salary schedule for the Unrepresented Positions, effective March 21, 2022:
Position
Title Step 1 Step 2 Step 3 Step 4 Step 5
CRS
Program
Manager 19.29 20.25 21.26 22.33 23.44
Preschool
Aide 15.00 15.75
Preschool
Teacher 17.14 18.00 18.90 19.84 20.84
City Council/RSA Agenda 39 Tuesday, March 8, 2022
Position
Title Step 1 Step 2 Step 3 Step 4 Step 5
Program
Coordinator
(PT) 22.50 23.62 24.81 26.05 27.35
Recreation
Aide I 15.00 15.75
Recreation
Leader 16.07 16.87 17.72 18.60 19.53
Seasonal
Maintenance
Worker 21.43
Senior
Recreation
Leader 17.14 18.00 18.90 19.84 20.84
Intern 15.00 54.64
Project
Specialist 15.00 83.48
City Council/RSA Agenda 40 Tuesday, March 8, 2022
Salary Schedule Adjustment for Unrepresented Seasonal/Temporary Positions Position Title Step 1 Step 2 Step 3 Step 4 Step 5
CRS Program Manager 19.29 20.25 21.26 22.33 23.44
Preschool Aide 15.00 15.75
Preschool Teacher 17.14 18.00 18.90 19.84 20.84
Program Coordinator (PT) 22.50 23.62 24.81 26.05 27.35
Recreation Aide I 15.00 15.75
Recreation Leader 16.07 16.87 17.72 18.60 19.53
Seasonal Maintenance
Worker 21.43
Senior Recreation Leader 17.14 18.00 18.90 19.84 20.84
Intern 15.00 54.64
Project Specialist 15.00 83.48
City Council/RSA Agenda 41 Tuesday, March 8, 2022
Agenda Item
DATE: 3/8/2022
TO: HONORABLE MAYOR AND CITY COUNCIL
FROM: KRISTOPHER J. KOKOTAYLO, CITYATTORNEY
SUBJECT: CONDUCT A SECOND READING AND ADOPT AN ORDINANCE OF THE
CITY COUNCIL OF THE CITY OF UNION CITY AMENDING SECTION
2.26.020 of CHAPTER 2.26, “ARTS & CULTURE COMMISSION,” OF THE
UNION CITY MUNICIPAL CODE
Staff recommends that the City Council amend Chapter 2.26, section 2.26.02 “Appointment–Qualifications of members–Officers and duties,” of the Union City Municipal Code to provide that the Arts & Culture Commission include two alternate positions.
STRATEGIC PLAN ALIGNMENT
This action supports Strategy 4 of Goal E, Communication and Outreach, by enhancing the opportunity for community members to serve on the Arts & Culture Commission and participate in communicating the City’s interests through training and routine engagement.
BACKGROUND
Chapter 2.26, section 2.26.020 “Appointment–Qualifications of members–Officers and duties,” of the Union City Municipal Code currently establishes the requirements for membership on the Arts & Culture Commission (the “Commission”) and the duties of the Commission. It also provides that the Commission is an advisory body consisting of five members.
The City Councilconducted a first reading of the proposed ordinance at its February 22 nd meeting.
DISCUSSION
The City’s Planning, Human Relations, Park and Recreation, and Senior Commissions all currently have alternate positions. The operation of these commissions is important to the City and its residents. The presence of alternate positions allows each commission to continue to fulfill its duties even in the event of an City Council/RSA Agenda 42 Tuesday, March 8, 2022
unanticipated absence.
The Commission also plays a significant role to the City and its residents. Amending Chapter 2.26, section
2.26.020 of the Municipal Code would allow the Commission to also continue to fulfill its duties where there is any unanticipated absence and bring the makeup of the Commission in line with the Planning, Human Relations, Park and Recreation and Senior Commissions.
FISCAL IMPACT
There are no direct fiscal impacts as a result of adopting the attached Ordinance.
RECOMMENDATION
Waive further reading and adopt by title only an ordinance amending Chapter 2.26, section 2.26.02 “Appointment–Qualifications of members–Officers and duties,” of the Union City Municipal Code.
Prepared by:
Shandyn Pierce, Attorney
Submitted by:
Kristopher J. Kokotaylo, City Attorney
ATTACHMENTS:
Description Type
OrdinanceArts & Culture Commission Alternates Ordinance City Council/RSA Agenda 43 Tuesday, March 8, 2022
ORDINANCE NO. ______
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF UNION CITY AMENDING SECTION 2.26.020 OF CHAPTER 2.26, “ARTS & CULTURE COMMISSION,” OF THE UNION CITY MUNICIPAL CODE
WHEREAS, the California Constitution, Article XI, Section 7, provides cities and counties with the authority to enact ordinances to protect the health, safety, welfare, and morals of their citizens; and WHEREAS, the City Council created the Arts & Culture Commission (the “Commission”) pursuant to Chapter 2.26 of the Union City Municipal Code (the “Code”); and WHEREAS, section 2.26.020 of the Code currently provides that the Commission shall be comprised of five members; and
WHEREAS, the City’s Planning, Human Relations, Park and Recreation, and Senior Commissions all currently have alternate positions; and WHEREAS, providing for alternates on the Commission will allow the Commission to continue to fulfill its duties in the event of unanticipated absence; and WHEREAS, the City Council desires to amend the Code to provide for two alternates to serve on the Commission.
THE CITY COUNCIL OF THE CITY OF UNION CITY DOES ORDAIN AS FOLLOWS:
SECTION 1. Recitals. The above recitals are true and correct and made a part of this Ordinance.
SECTION 2. CEQA. Approval of the amendments is exempt from environmental review in accordance with California Environmental Quality Act Guidelines section 15061(b)(3), the general exemption for projects with no potential for significant effect on the environment. As a series of text amendments and additions, it can be seen with certainty that there is no possibility that the Municipal Code Amendment will have a significant effect on the environment SECTION 3. Municipal Code Amendment. Section 2.26.020, “Appointment—Qualifications of members—Officers and duties,”
of Chapter 2.26 “Arts & Culture Commission,” of the Union City Municipal Code is hereby amended, with additions in underline, as follows:
2.26.020 Appointment—Qualifications of members—Officers and duties.
In order to further the public policy of the City, there is created and established an Arts & Culture Commission for the City of Union City, California consisting of five members plus two alternates, who shall be appointed by the Mayor and confirmed by the City Council.
City Council/RSA Agenda 44 Tuesday, March 8, 2022
Members of the Arts & Culture Commission shall either be a resident citizen at large or an artist.
The Commission shall elect one of its members to serve as Chair of the Commission, and another member as Vice Chair; officers shall be elected in December of each calendar year and shall serve one-year terms. On annual organization or upon vacancy of a Chairperson and/or a Vice-Chairperson, the Arts & Culture Commission shall elect a Chairperson and/or a ViceChairperson to serve at the pleasure of the Arts & Culture Commission. The duties of the Chair shall be to set meeting dates, times and locations for Commission meetings, conduct Commission meetings, and represent the Commission before the City Council and the general public. The duties of the Vice Chair shall be to assume the duties of Chair in the absence of the Chair.
SECTION 4. Severability. If any provision of this Ordinance or the application thereof to any person or circumstance is held invalid, the remainder of the Ordinance, including the application of such part or provision to other persons or circumstances shall not be affected thereby and shall continue in full force and effect. To this end, provisions of this Ordinance are severable. The City Council hereby declares that it would have passed each section, subsection, subdivision, paragraph, sentence, clause, or phrase hereof irrespective of the fact that any one or more sections, subsections, subdivisions, paragraphs, sentences, clauses, or phrases be held unconstitutional, invalid, or unenforceable.
SECTION 5. Publication and effective date. Within fifteen (15) days from and after adoption, this Ordinance shall be published once in the Tri-City Voice, a newspaper of general circulation printed and published in Alameda County and circulated in the City of Union City, in accordance with California Government Code Section 36933. This Ordinance shall take effect and be enforced thirty (30) days after its adoption.
City Council/RSA Agenda 45 Tuesday, March 8, 2022
Agenda Item
DATE: 3/8/2022
TO: HONORABLE MAYOR AND CITY COUNCIL
FROM: KRISTOPHER J. KOKOTAYLO, CITYATTORNEY
SUBJECT: ADOPT A RESOLUTION FINDING THAT THERE IS A PROCLAIMED STATE OF EMERGENCY; FINDING THAT MEETING IN PERSON
WOULD PRESENT IMMINENT RISKS TO THE HEALTH OR SAFETY OF ATTENDEES AS A RESULT OF THE STATE OF EMERGENCY; AND
AUTHORIZING REMOTE TELECONFERENCED MEETINGS OF THE
LEGISLATIVE BODIES OF THE CITY OF UNION CITY FOR THE 30 DAY PERIOD BEGINNING MARCH 8 PURSUANT TO AB 361
Staff recommends that the City Council adopt a resolution to continue conducting City Council and all other City Council appointed Board and Commission meetings remotely due to health and safety concerns for the public and making related findings in compliance with AB 361 (2021).
On February 8, 2022, the City Council made the necessary findings pursuant to AB 361 to continue to conduct virtual meetings. AB 361 requires that the City Council revisit the need to continue conducting virtual meetings every 30 days.
Staff and the City Attorney recommend that the City Council adopt a resolution making the necessary findings pursuant to AB 361 to continue conducting virtual meetings. Absent further action of the City Council, the City's legislative bodies would need to continue in-person meetings 30 days after February 8, 2022.
STRATEGIC PLAN ALIGNMENT
This action is not related to the Strategic Plan as it is in response to the COVID-19 pandemic.
BACKGROUND
On March 4, 2020, Governor Newsom declared a State of Emergency to make additional resources available, formalize emergency actions already underway across multiple state agencies and departments, and help the City Council/RSA Agenda 46 Tuesday, March 8, 2022
State address the broader spread of COVID 19.
On March 16, 2020, the City Council adopted a Resolution ratifying the proclamation of a local state of emergency by the Director of Emergency Services due to COVID-19.
On March 17, 2020, in response to the COVID-19 pandemic, Governor Newsom issued Executive Order N29-20, which suspended certain provisions of the Brown Act in order to allow local legislative bodies to conduct meetings telephonically or by other means. Additionally, the State implemented a shelter-in-place order, requiring all non-essential personnel to work from home.
The City has established virtual meetings for all City Council and City Council appointed Board and Commission meetings. The virtual meetings have allowed the Council and advisory bodies to continue to conduct City business from remote locations while ensuring the public’s continued access to government meetings in a safe manner.
On June 11, 2021, Governor Newsom issued Executive Order N-08-21, which among other things, rescinded certain clauses of Executive Order N-29-20 after September 30, 2021, including clauses that suspended certain provisions of the Brown Act. Thus, effective October 1, 2021, agencies would have had to transition back to public meetings held in fullcompliance with the Brown Act.
Since the Governor issued Executive Order N-08-21, the highly contagious Delta and Omicron variants have emerged, causing a spike in cases throughout the state and within the Alameda County.
On September 16, 2021, the Governor signed AB 361 (2021) which allows for local legislative and advisory bodies to continue to conduct meetings via teleconferencing under specified conditions and includes a requirement that the Council make specified findings. AB 361 took effect immediately.
The City Counciladopted a resolution pursuant to AB 361 on September 28, 2021 in order to allow the City’s legislative bodies to continue conducting virtual meetings after September 30, 2021. The resolution included all of the necessary findings required pursuant to AB 361. The City has continued to adopt resolutions making the necessary findings to continue operating virtually since that time.
DISCUSSION
The California Legislature approved AB 361 and the Governor signed the bill into law on September 16, 2021.
AB 361 allows local legislative bodies to continue to meet remotely after the expiration of the clauses of Executive Order N-29-20 which suspended certain Brown Act provisions. Under AB 361, the City and its legislative bodies will be allowed to continue to meet remotely when:
· The localagency holds a meeting during a declared state of emergency; · State or local health officials have imposed or recommended measures to promote social distancing; · Legislative bodies declare the need to meet remotely due to present imminent risks to the health or safety of attendees.
The City meets the requirements to continue holding meetings remotely in order to ensure the health and safety of the public:
· The Governor has declared a State of Emergency, and the City Council has ratified the proclamation of a localemergency by the Director of Emergency Services; · County Health orders require that individuals in indoor public spaces wear masks and the CDC recommends social distancing of at least six feet due to COVID-19; City Council/RSA Agenda 47 Tuesday, March 8, 2022
· The Delta and Omicron variants of COVID-19 has resulted in a significant increase of COVID-19 cases within the state and throughout Alameda County;
· Meeting in person would present imminent risks to the health or safety of attendees, the legislative bodies, and staff.
AB 361 has been signed into law. Therefore, the City Council is required to declare every 30 days that the City’s legislative bodies must continue to meet remotely in order to ensure the health and safety of the public.
The City Council has previously acted to make continued findings pursuant to AB 361.
The proposed resolution includes the necessary findings pursuant to AB 361 to allow the City Counciland the City’s legislative bodies to continue meeting remotely.
FISCAL IMPACT
This is no fiscal impact of adopting this Resolution.
RECOMMENDATION
Staff recommends that the City Council adopt a resolution to make the necessary findings to continue conducting City Council and all other City Council appointed Board and Commission meetings remotely due to health and safety concerns for the public in compliance with AB 361 (2021).
Prepared by:
Shandyn Pierce, Attorney
Submitted by:
Kristopher J. Kokotaylo, City Attorney
ATTACHMENTS:
Description Type
AB361 Resolution Resolution
City Council/RSA Agenda 48 Tuesday, March 8, 2022
RESOLUTION NO.
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
UNION CITY FINDING THAT THERE IS A PROCLAIMED
STATE OF EMERGENCY; FINDING THAT MEETING IN
PERSON WOULD PRESENT IMMINENT RISKS TO THE
HEALTH OR SAFETY OF ATTENDEES AS A RESULT OF
THE STATE OF EMERGENCY; AND AUTHORIZING
REMOTE TELECONFERENCED MEETINGS OF THE
LEGISLATIVE BODIES OF THE CITY OF UNION CITY FOR
THE 30 DAY PERIOD BEGINNING MARCH 8 PURSUANT TO
AB 361
WHEREAS, all meetings of the City of Union City’s legislative bodies are open and public, as required by the Ralph M. Brown Act (Cal. Gov. Code 54950 – 54963), so that any member of the public may attend, participate, and watch the City’s legislative bodies conduct their business; and
WHEREAS, on March 4, 2020, Governor Newsom declared a State of Emergency to make additional resources available, formalize emergency actions already underway across multiple state agencies and departments, and help the State prepare for a broader spread of the novel coronavirus disease 2019 (“COVID-19”); and
WHEREAS, on March 16, 2020, the City Council adopted a Resolution ratifying the proclamation of a local emergency by the Director of Emergency Services due to COVID-19; and WHEREAS, on March 17, 2020, in response to the COVID-19 pandemic, Governor Newsom issued Executive Order N-29-20 suspending certain provisions of the Ralph M. Brown Act in order to allow local legislative bodies to conduct meetings telephonically or by other means; and
WHEREAS, as a result of Executive Order N-29-20, staff set up virtual meetings for all City Council meetings and meetings of all legislative bodies within the City; and WHEREAS, on June 11, 2021, Governor Newsom issued Executive Order N-08-21, which, effective September 30, 2021, ends the provisions of Executive Order N-29-20 that allows local legislative bodies to conduct meetings telephonically or by other means; and WHEREAS, on September 16, 2021, Governor Newsom signed AB 361 (2021) which allows for local legislative bodies and advisory bodies to continue to conduct meetings via teleconferencing under specified conditions and includes a requirement that the City Council make specified findings. AB 361 (2021) took effect immediately; and WHEREAS, AB 361 (2021) requires that the Governor declare a State of Emergency pursuant to Government Code section 8625; and
WHEREAS, AB 361 (2021) further requires that state or local officials have imposed or City Council/RSA Agenda 49 Tuesday, March 8, 2022
recommended measures to promote social distancing, or, requires that the legislative body determines that meeting in person would present imminent risks to the health and safety of attendees; and
WHEREAS, such conditions now exist in the City and Governor Newsom has declared a State of Emergency due to COVID-19; and
WHEREAS, since issuing Executive Order N-08-21, the highly contagious Delta and Omicron variants of COVID-19 has emerged, causing an increase in COVID-19 cases throughout the State and Alameda County; and
WHEREAS, the Centers for Disease Control and Prevention (“CDC”) continues to recommend physical distancing of at least 6 feet from others outside of the household; and WHEREAS, because of the rise in cases due to the Delta and Omicron variants of COVID19, the City is concerned about the health and safety of all individuals who intend to attend City Council and meetings of the City’s other legislative bodies; and WHEREAS, on September 28, 2021 the City Council found that the presence of COVID-19 and the increase of cases due to the Delta variant would present imminent risks to the health or safety of attendees, including the legislative bodies and staff, should the City’s legislative bodies hold in person meetings; and
WHEREAS, since the Alameda County Health Officer’s August order the highly contagious Omicron variant has emerged, and has resulted in the greatest nationwide infection rate since the beginning of the COVID-19 pandemic; and
WHEREAS, the City Council hereby finds that the imminent risks of the City’s legislative bodies holding in person meetings to the health or safety of attendees continues to exist; and
WHEREAS, the City shall ensure that it’s meetings comply with the provisions required by AB 361 (2021) for holding teleconferenced meetings.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Union City as follows:
1. The above recitals are true and correct, and incorporated into this Resolution.
2. In compliance with AB 361 (2021), and in order to continue to conduct teleconference meetings without complying with the usual teleconference meeting requirements of the Brown Act, the City Council makes the following continued findings:
a) The City Council has reconsidered the circumstances of the state of emergency; and
City Council/RSA Agenda 50 Tuesday, March 8, 2022
b) The state of emergency, as declared by the Governor and City Council, continues to directly impact the ability of the City Council and the City’s legislative bodies, as well as staff and members of the public, from meeting safely in person; and c) The CDC continues to recommend physical distancing of at least six feet due to COVID-19 and as a result of the presence of COVID-19 and the increase of cases due to the Delta and Omicron variants, meeting in person would present imminent risks to the health or safety of attendees, the legislative bodies and staff.
3. City Council and City’s legislative bodies may continue to meet remotely in compliance with AB 361, in order to better ensure the health and safety of the public.
4. The City Council will revisit the need to conduct meetings remotely within 30 days of the adoption of this resolution.
City Council/RSA Agenda 51 Tuesday, March 8, 2022
Agenda Item
DATE: 3/8/2022
TO: HONORABLE MAYOR AND CITY COUNCIL
FROM: KRISTOPHER J. KOKOTAYLO, CITYATTORNEY
SUBJECT: ADOPT A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
UNION CITY CONFIRMING THE CONTINUED EXISTENCE OF A LOCAL EMERGENCY DUE TO COVID-19
The City Council ratified a proclamation of local emergency on March 16, 2020 as a result of the COVID-19 pandemic. The City Council confirmed the continued existence of the local emergency due to the COVID-19 pandemic in accordance with state law on May 12, 2020, June 23, 2020, August 11, 2020, September 22, 2020, November 10, 2020, December 22, 2021, February 9, 2021, March 23, 2021, May 11, 2021, June 22, 2021, August 10, 2021, September 28, 2021, November 23, 2021, and January 11, 2022. City staff and the City Attorney recommend that the City Councilconfirm the continued existence of the localemergency.
STRATEGIC PLAN ALIGNMENT
This item is not related to the Strategic Plan as it is in response to the COVID-19 pandemic.
BACKGROUND
On March 16, 2020, the City Manager, acting as Director of Emergency Services, proclaimed a local emergency pursuant to California Government Code Section 8630 and Union City Municipal Code Chapter
2.28. The emergency declaration was based on conditions of extreme peril to the safety of persons and property within the City as a consequence of the global spread of novel coronavirus 2019 ("COVID-19"), including confirmed cases in Alameda County. On that same day, the City Council adopted a resolution ratifying the Proclamation of Local Emergency issued by the Director of Emergency Services.
On May 12, 2020, the City Council adopted a resolution confirming the continued existence of the local emergency due to the COVID-19 pandemic. Subsequently, on June 23, 2020, August 11, 2020, September 22, 2020, November 10, 2020, December 22, 2020, February 9, 2021, March 23, 2021, May 11, 2021, June 22, 2021, August 10, 2021, September 28, 2021, November 23, 2021, and January 11, 2022 the City Council adopted resolutions confirming the continued existence of the localemergency.
City Council/RSA Agenda 52 Tuesday, March 8, 2022
DISCUSSION
Pursuant to Government Code Section 8630, the City Council must review and confirm the continued existence of a local emergency at least once every sixty (60) days. This Resolution comes to the City Council prior to the expiration of sixty (60) days from the previous confirmation of local emergency to ensure there is no interruption in the declaration of the continued localemergency.
The conditions that prompted the original declaration of a local emergency persist and health officials are still learning more information regarding the nature of COVID-19 and how it is transmitted. Community transmission of COVID-19 continues to occur, and the number of cases within Alameda County is still high.
There are now 254,122 cases within the County, and 1,768 deaths (as of March 3, 2022). The spread of COVID-19 continues as a result of the highly contagious Delta and Omicron variants of the virus. While the Alameda County Health Officer shelter in place order requiring that all residents shelter at home has been rescinded, public health and safety concerns for persons and property within the City as a consequence of the global spread of COVID-19 continue to exist.
Declaring a state of emergency provides local governments with the power necessary to coordinate and implement plans aimed at protecting the community and property during a disaster. For example, a declaration of emergency is often necessary to secure mutual disaster aid from local, state and federal agencies. A declaration of emergency also permits the Director of Emergency Services to promulgate orders and regulations necessary for the protection of life and property, such as imposing a curfew and ordering use of facilities for governmental purposes. Additionally, declaring a state of emergency ensures that the local government and its officials and employees are immune from liability when exercising their official duties during an emergency.
If adopted, the declaration of emergency willcontinue to remain in place until the emergency conditions have ended. However, the City Council will be required to continue to review the declaration at least every 60 days.
FISCAL IMPACT
There is no direct fiscal impact for adopting the resolution declaring that a local emergency continues to exist.
However, the City will consider all options available to seek reimbursement for expenses through the appropriate authorities.
RECOMMENDATION
Staff recommends that the City Council adopt a resolution confirming the continued existence of a local emergency due to COVID-19.
Prepared by:
Shandyn H. Pierce, Attorney
Submitted by:
Kristopher J. Kokotaylo, City Attorney
ATTACHMENTS:
City Council/RSA Agenda 53 Tuesday, March 8, 2022
Description Type
Emergency COVIDResolution March 2022 Resolution
City Council/RSA Agenda 54 Tuesday, March 8, 2022
1 CITY OF UNION CITY
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF UNION CITY
CONFIRMING THE CONTINUED EXISTENCE OFA LOCAL EMERGENCY DUE TO COVID-19
WHEREAS, Government Code Section 8630 and Union City Municipal Code Section
2.28.060 authorize the Director of Emergency Services to proclaim a local emergency when conditions of disaster or extreme peril to the safety of persons and property within the territorial limits of a city exist if the City Council is not in session and provides that the City Council shall ratify the proclamation within seven days thereafter; and WHEREAS, in accordance with Government Code Section 8630 and Union City Municipal Code Section 2.28.060, the Director of Emergency Services proclaimed the existence of a local emergency caused by the Novel Coronavirus (COVID-19), a respiratory disease first identified in China that may result in serious illness or death that is easily transmissible from person to person, on March 16, 2020; and WHEREAS, on March 16, 2020, the City Council ratified and confirmed the proclamation of the existence of a local emergency issued by the Director of Emergency Services; and
WHEREAS, on May 12, 2020, the City Council adopted Resolution No. 5595-20 confirming the continued existence of the local emergency; and WHEREAS, on June 23, 2020 the City Council adopted Resolution No. 5618-20 confirming the continued existence of the local emergency; and WHEREAS, on August 11, 2020 the City Council adopted Resolution No. 5642-20 confirming the continued existence of the local emergency; and WHEREAS, on September 22, 2020 the City Council adopted Resolution No. 5656- 20 confirming the continued existence of the local emergency; and WHEREAS, on November 10, 2020 the City Council adopted Resolution No. 5684- 20 confirming the continued existence of the local emergency; and WHEREAS, on December 22, 2020 the City Council adopted Resolution No. 5700- 20 confirming the continued existence of the local emergency; and WHEREAS, on February 9, 2021 the City Council adopted Resolution No. 5710-21 confirming the continued existence of the local emergency; and WHEREAS, on March 23, 2021 the City Council adopted Resolution No. 5731-21 confirming the continued existence of the local emergency; and City Council/RSA Agenda 55 Tuesday, March 8, 2022
2 WHEREAS, on May 11, 2021 the City Council adopted Resolution No. 5752- 21 confirming the continued existence of the local emergency; and WHEREAS, on June 22, 2021 the City Council adopted Resolution No. 5785- 21 confirming the continued existence of the local emergency; and WHEREAS, on August 10, 2021 the City Council adopted Resolution No. 5817- 21 confirming the continued existence of the local emergency; and WHEREAS, on September 28, 2021 the City Council adopted Resolution No. 5829- 21 confirming the continued existence of the local emergency; and WHEREAS, on November 23, 2021 the City Council adopted Resolution No. 5857- 21 confirming the continued existence of the local emergency; and WHEREAS, on January 11, 2022 the City Council adopted Resolution No. 5881-22 confirming the continued existence of the local emergency; and WHEREAS, pursuant to Government Code Section 8630 the City Council must periodically review the need for continuing the local emergency; and WHEREAS, pursuant to Government Code Section 8630, the City Council must review the need for continuing the local emergency at least every sixty (60) days; and WHEREAS, the conditions that prompted the original declaration of a local emergency continue to exist; and
WHEREAS, the recitals contained in Resolution No. 5572-20, adopted by the City Council on March 16, 2020, the recitals contained in Resolution No. 5595-20 adopted by the City Council on May 12, 2020, the recitals contained in Resolution No. 5618-20 adopted by the City Council on June 23, 2020, the recitals contained in Resolution No. 5642-20 adopted by the City Council on August 11, 2020, the recitals contained in Resolution No. 5656-20 adopted by the City Council on September 22, 2020, the recitals contained in Resolution No. 5684-20 adopted by the City Council on November 10, 2020, the recitals contained in Resolution No. 5700-20 adopted by the City Council on December 22, 2020, the recitals contained in Resolution No. 5710-21 adopted by the City Council on February 9, 2021, and the recitals contained in Resolution No. 5731-21 adopted by the City Council on March 23, 2021, and the recitals contained in Resolution No. 5752- 21 adopted by the City Council on May 11 2021, and the recitals contained in Resolution No. 5785-21 adopted by the City Council on June 22, 2021, and the recitals contained in Resolution No. 5817-21 adopted by the City Council on August 10, 2021, and the recitals contained in Resolution No. 5829-21 adopted by the City Council on September 28, 2021, and the recitals contained in Resolution No. 5857-21 adopted by the City Council on November 23, 2021, and the recitals contained in Resolution No. 5881-22 adopted by the City Council on January 11, 2022 are City Council/RSA Agenda 56 Tuesday, March 8, 2022
3 incorporated into this Resolution as if stated herein; and WHEREAS, community transmission of COVID-19 has continued to occur and health officials are still learning more information regarding the nature of COVID-19 and how it is transmitted; and
WHEREAS, the number of cases within Alameda County has continued to rise, and as of March 3, 2022 there are now over 254,122 confirmed cases of COVID-19 within the County, and 1,768 deaths; and
WHEREAS, since the initial declaration of a local emergency on March 16, 2020 the highly contagious Delta variant has emerged and became the dominant strain of COVID-19; and WHEREAS, since the initial declaration of local emergency on March 16, 2020 the highly contagious Omicron variant has emerged; and
WHEREAS, the public health and safety concerns for persons and property within the City as a consequence of the global spread of COVID-19 continue to exist; and WHEREAS, the health, safety, and welfare of Union City residents, businesses, visitors, and staff is of utmost importance to the City and additional future measures may be needed to protect the community; and
WHEREAS, the City may require additional assistance in the future, and a formal declaration of emergency allows the City to access resources in a timely manner in a timely fashion; and
WHEREAS, the City Council finds that conditions of extreme peril to the safety of persons and property within the territorial limits of the City related to COVID-19 pandemic continue in existence; and
WHEREAS, the City Council finds that extraordinary measures are required to protect the public health, safety, and of persons and property within the City that are or are likely to be beyond the control or capability of the services, personnel, equipment, and facilities of the City; and WHEREAS, the City Council desires to confirm the continued existence of a local emergency within Union City due to COVID-19.
NOW, THEREFORE, BE IT RESOLVED that the Council of the City of Union City hereby declares as follows:
1. The local emergency declared by Resolution No. 5572-20 due to the COVID-19 pandemic continues to exist within the City of Union City.
2. During the existence of the declared local emergency, the powers, functions, and duties of the City Manager, acting as Director of Emergency Services, and the City Council/RSA Agenda 57 Tuesday, March 8, 2022
4 emergency organization of this City shall be those prescribed by State law and by ordinances and resolutions of the City of Union City.
3. The declaration of local emergency shall remain in effect until such time that the City Council determines that the emergency conditions have been abated.
4. City staff is directed to place an item on the agenda for review at least every sixty (60) days from the effective date of this Resolution to determine the need for continuing the local emergency pursuant to Government Code Section 8630.
City Council/RSA Agenda 58 Tuesday, March 8, 2022
Agenda Item
DATE: 3/8/2022
TO: HONORABLE MAYOR AND CITY COUNCIL
FROM: CARMELA CAMPBELL, ECONOMIC AND COMMUNITY
DEVELOPMENT DIRECTOR
SUBJECT: INTRODUCE AN ORDINANCE APPROVING DEVELOPMENT
AGREEMENT (DA-22-001) FOR THE WINDFLOWER - BLOCK 2
PROJECT, FOR THE PURPOSE OF EXTENDING PROJECT APPROVALS
THAT WERE PREVIOUSLYAPPROVED BY THE CITY COUNCIL ON
NOVEMBER 14, 2017
Staff recommends that the City Council hold a public hearing and introduce an Ordinance (Attachment 1) approving Development Agreement (DA-22-001) for the Windflower – Block 2 project, for the purpose of extending project approvals that were previously approved by the City Council on November 14, 2017. See Attachment 1 – Exhibit A for the text of the Development Agreement. The project includes the development of 443 multi-family rental units.
The Planning Commission recommended approval of this application to the City Council at its February 17, 2022 meeting on a 5-0 vote. Attached to this staff report is the Planning Commission Staff Report (Attachment 2), Draft Planning Commission Meeting Minutes (Attachment 3), and Planning Commission Resolution Recommending Approval of the Development Agreement (DA-22-001) (Attachment 4).
STRATEGIC PLAN ALIGNMENT
The Strategic Plan identified the build out of the Station District as a priority:
• Goal C. Economic, Community Development and Public Safety – Institute forward-thinking business, land use development, housing, social services, and public safety strategies that promote community growth and innovation.
• Strategy 3 – Facilitate the build out of the greater Station District Area through the construction of the Quarry Lakes Parkway, upgrades to the BART station, and completion of the pedestrian railcrossing and the sale and development of City-owned land.
City Council/RSA Agenda 59 Tuesday, March 8, 2022
BACKGROUND
The applicant, Windflower Properties, LLC, has submitted a request to enter into a Development Agreement with the City to extend the project approvals for the Windflower 2 project to be coterminous with the deadline for commencement of construction provided in the Disposition and Development. The project consists of development on Block 2 of the Station District area for a high-density, multi-family development. Exhibit A to Attachment 1 includes the draft Development Agreement language.
The Windflower 2 project was approved by Planning Commission on October 19, 2017, and subsequently by City Council on November 14, 2017. The 3.5-acre project site referred to as “Block 2” is located along 11th Street. The City Council Resolution approving the project is attached (Attachment 5). See below for an overview of the project approvals. The City previously approved disposition of B lock 2 to the applicant pursuant to a Disposition and Development Agreement approved in 2017 (the “DDA”). In addition, the following were approved:
1. SD-14-003 (Site Development Review) to allow the development of 443 new, market-rate, multifamily dwelling units (studios, one bedroom and two bedrooms, including 11 residential lofts and 13 live/work units) within two buildings, a six-level parking structure with 460 parking spaces, 5,088 square feet of ground floor retail space, public and private courtyards, and related site improvements and amenities.
2. UP-14-006 (Conditional Use Permit) to allow: (a) a mixed-use development within the CSMU zoning district; (b) building height greater than 65 feet; (c) high-density residential uses and live/work units within the CSMU zoning district; and(d) reduction to storage requirements.
The original projects approvals were granted for one-year and were set to expire on November 14, 2018. The applicant obtained two, one-year extension extending the approvals to November 14, 2020. Per AB1561, which extended the life of housing entitlements in effect before March 4, 2020, the project approvals were extended an additional 18 months and are now set to expire on May 14, 2022 unless building permits have been issued, all fees paid, and construction commences.
Since the approvals were granted, the applicant has been diligently working on moving the project forward onto the construction phase. The applicant has provided feedback that due to decreasing rents and rising construction and labor costs, attributed in part, to the COVID pandemic, there have been challenges securing financing.
DISCUSSION
Development Agreements (DA) are voluntary agreements commonly used for major projects that will be phased over multiple years to provide some degree of certainty to the applicant regarding the policies, regulations, and fees that will be applied to the project in return for the provision of public benefits to the City.
Most significantly, a DA vests land use approval for a specific period. Per Union City Municipal Code (UCMC) Chapter 18.104, the DA is subject to review and recommendation by the Planning Commission and a final decision by the City Council. DAs are adopted by ordinance and require a second reading.
Development Agreement Contents
Extension of Approvals
The City and project developer previously entered into a Disposition and Development Agreement (DDA) City Council/RSA Agenda 60 Tuesday, March 8, 2022
dated, June 13, 2017, that provides for disposition of the Block 2 property to the applicant for the development of the project, subject to the terms and conditions contained in the DDA. The City and developer desire to ensure that the project approvals do not expire before the December 31, 2024 deadline for the commencement of construction included in the DDA to ensure that the Project can proceed as approved by the City Council.
DA Term
The term of the DA is five years. This is separate from the date of December 31, 2024 which is when construction must commence. The reason for this is that there are certain provisions of the DA, such as those related to the Community Art Space, which could extend beyond the commencement of construction. This language is not meant to extend the project approvals beyond that of the DDA.
Public Art
This project is required to comply with the Art in Public Places Program (UCMC Chapter 12.40), which requires a contribution of one percent of the project cost toward public art, with one-third of the one percent required as a contribution to the Union City Public Art Fund. The current approvals from 2017 reference the applicant providing an art installation that would also serve as screening for the Cheeves Way garage.
The DA includes wording that allows the City and the developer to approve an arrangement similar to the City’s use of Studio 11 located in Union Flats, which is an apartment building located adjacent to the project site constructed by the applicant. The arrangement allows for the applicant to satisfy the project’s public art requirements by providing the City with the right to use an approximate 2,000 sq. ft. portion of the building’s ground floor space located on 11th Street as a Community Art Space for display of artworks, classes and workshops, and public events. If this alternative is agreed upon by the City and the Developer, the DA requires the City and applicant to enter into a Community Art Agreement to address the obligations of each party with respect to the installation of interior improvements, utility charges, maintenance, repairs, and other expenses relating to the space. The value of any below-market rate rent for the Community Art Space, as mutually agreed, and the cost of any Developer obligations regarding installation of improvements, maintenance, utilities, and other expenses for the space shall be equivalent in value to the Art Fee that Developer would otherwise be obligated to pay pursuant to Union City Municipal Code Chapter 12.40. Prior to issuance of the first building permit for the project, if the City and Developer are unable to mutually agree upon the terms of the Community Art Agreement, consistent with the provisions listed in Chapter 12.40 of the Union City Municipal Code, Developer will be required to either (i) pay the applicable Art Fee to City, or (ii) submit a proposal for public art to the City, receive approval by the City’s Art and Culture Commission. If the City and Developer are unable to mutually agree upon the terms of the Community Art Agreement, the building area that was to be used as Community Art Space shall revert to use identified in the project approvals.
Project Amendments /Subsequent Approvals.
Section 1.5.4 of the DA clarifies that the DA provisions would extend to any subsequent project approvals, which is typical language. Section 1.5.5 was added at the request of the applicant and provides some background on a future request for modifications to the project that the applicant is currently exploring.
The applicant has indicated that they intend to apply for modifications to the existing Site Development Review and the existing Use Permit approvals to ensure project feasibility. These include the relocation of certain amenities within the site, the reconfiguration of parking facilities, a reduction in height of certain buildings, a modification to the scope of on-site parking and storage, and changes to unit types and the total number of residential units, provided that the total number of residential units will not exceed 504 units (which is the maximum unit count allowed by the DDA). The applicant has presented staff with some concept drawings but, has not yet submitted a project application. When the applicant is ready to move forward on the proposed amendments, the proposed modification to the existing approvals will be brought back to the Planning Commission and City Council for consideration. The DA is being presented for approval prior to presentation of a request for consideration of project approval modifications so that the existing approvals will not expire in advance of such modification request.
City Council/RSA Agenda 61 Tuesday, March 8, 2022
The applicant requested information regarding anticipated requests for modifications to be included in the DA in order to alert the Planning Commission and City Council of the applicant’s intent to apply for modifications to the existing approvals as they will be the decision makers reviewing the modifications. The DA wording clarifies that nothing in the document is interpreted as a promise or representation regarding the City’s review of the anticipated modifications or as otherwise limiting the City’s discretion to approve, deny, or modify an application to modify the existing Site Development Review and the existing Use Permit for the Project.
Section 4.4 also addresses future amendments to project approvals and outlines the process. The DA categorizes future amendments as “major” (i.e., requires review by the City Council and Planning Commission), and “minor (i.e., can be approved by Economic and Community Development Director). This is also typical language but the specifics of what constitutes a major versus a minor amendment was informed by applicable Zoning Ordinance provisions as well as discussions between staff and the applicant. Major amendments are defined as modifications that affects (a) the Term of the DA, (b) permitted uses of the property, (c) provisions for reservation or dedication of land, (d) the density or intensity of use of the property, (e) the maximum height or size of proposed buildings, (f) the location and maintenance of on-site or off-site public improvements, (g) any exceptions to applicable development standards as allowed by Section 18.38.250 of the Union City Municipal Code, or (h) such other modification Economic & Community Development Director reasonably determines to constitute a significant change in the Project.
Minor amendments address a variety of items including minor alterations in vehicle circulation patterns or vehicle access points, variations in the location of structures that do not substantially alter the design concepts of the project approvals, minor changes to architectural features required to comply with applicable Building Code provisions or to address supply issues, substitution of comparable landscaping for any landscaping shown on any development plan or landscape plan, variations in the location or installation of utilities and other infrastructure connections and facilities that do not substantially alter design concepts of the project approvals, and minor adjustments to approved building façade colors and/or exterior materials, courtyard dimensions, and location and square footage of common area.
The Planning Commission recommended approval of this application to the City Council at its February 17, 2022 meeting on a 5-0 vote. Attached to this staff report is the Planning Commission Staff Report (Attachment 2), Draft Planning Commission Meeting Minutes (Attachment 3), and Planning Commission Resolution Recommending Approval of the Development Agreement (DA-22-001) (Attachment 4).
FISCAL IMPACT
There is no impact to the General Fund. Per Sec. 2.6 of the DA, the applicant/developer is responsible for payment of fees related to the project approvals or subsequent approvals. These fees are established as either Processing Fees to cover the cost of City review of applications, or Impact Fees assessed to the project defraying the cost of providing City services in relation to the development impacts of the project. The applicant/developer shall pay the Impact Fees at a rate established at the time the fee is assessed and payable, per requirements established in the UCMC.
RECOMMENDATION
Staff recommends that the City Council hold a public hearing and introduce an Ordinance (Attachment 1) approving Development Agreement (DA-22-001) for the Windflower – Block 2 project, for the purpose of extending project approvals that were previously approved by the City Council on November 14, 2017.
City Council/RSA Agenda 62 Tuesday, March 8, 2022
Prepared by:
DEREK FARMER, PLANNING MANAGER
Submitted by:
DEREK FARMER, PLANNING MANAGER
ATTACHMENTS:
Description Type
Attachment 1: Draft Ordinance XXXX-22 Ordinance
Attachment 1, Exhibit A - Draft Development Agreement Exhibit Attachment 2 - PCStaff Report 02-17-22 Attachment
Attachment 3 - Draft PCMinutes 02-17-22 Attachment
Attachment 4 - PCResolution Attachment
Attachment 5 - CCResolution 5143-17 -Approving Windflower - Block 2
Attachment
Power Point Attachment
City Council/RSA Agenda 63 Tuesday, March 8, 2022
Attachment 1
ORDINANCE NO. XXX-22
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF UNION CITY APPROVING A DEVELOPMENT AGREEMENT, DA-22-001, BETWEEN THE
CITY OF UNION CITY AND WINDFLOWER PROPERTIES, LLC FOR THE WINDFLOWER PROJECT – BLOCK 2
WHEREAS, in accordance with California Government Code sections 65864 et seq. (the “Development Agreement Statute”), which authorizes cities to enter into agreements for the development of real property with any person having a legal or equitable interest in such property in order to establish certain development rights, the City of Union City (“City”) adopted Chapter
18.104, Procedures and Requirements for Consideration of Development Agreements, to implement procedures for the processing and approval of development agreements; and WHEREAS, Windflower Properties, LLC, (“Applicant”) is requesting approval of a Development Agreement (DA-22-001) for the Windflower – Block 2 – development project; and WHEREAS, the project site consists of 3.5 acres (“Property”) and is located at 34302 11th Street between Galliano Way and Berger Way (APN: 087-340-002); and WHEREAS, the Applicant previously received certain land use approvals from the City for the development of a multi-family residential development on the Property by the City Council on November 14, 2017 per Resolution No 5143-17 (the “Project Approvals”); and WHEREAS, the Applicant and the City desire to enter into a Development Agreement in order to provide the Applicant with some certainty in the land use regulatory process until the Developer commences construction of the Project and to extend the Project Approvals until December 31, 2024; and
WHEREAS, the proposed Development Agreement is labeled Exhibit A, attached hereto and made part hereof; and
WHEREAS, pursuant to Section 15162 and 15168 of the CEQA Guidelines, the proposed Windflower project is within the scope of the project and analysis in the November 2010 Station District Mixed-use Development Project EIR (City Council Resolution 4072-10) and the 2040 Union City General Plan Update EIR (City Council Resolution No. 5548-19). All adopted mitigation measures continue to apply to the project; and WHEREAS, the California Constitution, Article XI, Section 7, provides cities and counties with the authority to enact ordinances to protect the health, safety, welfare, and morals of their citizens; and
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City Council Ordinance No. #XXX-22
Windflower Project – Block 2
Development Agreement
PLANNING COMMISSION REVIEW
WHEREAS, the Planning Commission held a duly noticed public hearing on the proposed Development Agreement on February 17, 2022, at which time all interested parties had the opportunity to be heard. The Planning Commission considered a staff report dated February 17, 2022, and all written and oral testimony, and adopted Resolution No. XX-22 recommending approval of the Development Agreement. The staff report and resolution are incorporated herein by reference; and
CITY COUNCIL REVIEW
WHEREAS, the City Council held a duly noticed public hearing on the proposed Development Agreement on March 8, 2022, at which time all interested parties had the opportunity to be heard. The City Council considered a staff report dated March 8, 2022, and incorporated herein by reference, the Planning Commission recommendation, and all written and oral testimony before taking action on the Development Agreement.
THE CITY COUNCIL OF THE CITY OF UNION CITY DOES ORDAIN AS FOLLOWS:
SECTION 1. Recitals. The above recitals are true and correct and made a part of this Ordinance.
SECTION 2. CEQA. The project is within the scope of the Station District Mixed-Use Development Project EIR (certified in November 2010 by City Council Resolution No. 4072-10) and the 2040 Union City General Plan Update EIR (certified on December 10, 2019 by City Council Resolution No. 5548-19). No new information of substantial importance has been discovered requiring revisions to the impacts, mitigation measures or alternatives that were provided in either EIR. Additionally, there have not been any substantial changes with respect to City policies or requirements that would require additional environmental analysis, which determined that the project would not result in any significant environmental impacts with the incorporation of mitigation measures. All adopted mitigation measures continue to apply to the project. Thus, pursuant to Sections 15162 and 15168 of the CEQA Guidelines, the City has determined that no further analysis is required.
SECTION 3. Findings. The City Council makes the following findings in support of approving this Ordinance, based on the whole of the record before it.
1. That the proposed Development Agreement is consistent with the CSMU (Station Mixed Use Commercial) General Plan land use designation and related policies that apply to development in the Station District. The Development Agreement would foster a highdensity, mixed use residential development, which helps support transit ridership.
Additionally, the uses and design of the project encourage transit use and minimize automobile dependence; the project helps create a vibrant, transit-oriented mixed-use area, and is pedestrian-friendly and minimizes parking impacts on the streetscape and the City Council/RSA Agenda 65 Tuesday, March 8, 2022
City Council Ordinance No. #XXX-22
Windflower Project – Block 2
Development Agreement
neighborhood; and the project will be harmonious with existing and potential uses within the Station District and surrounding areas. The project is also consistent with the DIPSA Specific Plan, which identified high-density residential and commercial development for the Station District area; and
2. That the proposed Development Agreement will not be detrimental to the health, safety and general welfare of persons residing in the immediate area, not be detrimental or injurious to property or persons in the general neighborhood or to the general welfare of the residents of the City as a whole because mitigation measures have been included to mitigate all potential significant environmental impacts to less than significant levels, and in addition, the project has been designed and conditioned consistent with applicable requirements to protect health and safety including the provision of adequate water supply including water used for fire suppression systems, adequate access for emergency vehicles, and that the project will also be constructed consistent with current Building Code requirements; and
3. That the proposed Development Agreement will not adversely affect the orderly development of property or the preservation of property values because it includes provisions to facilitate the orderly development of the project. The complexity, enormity and long-range nature of the project would be difficult for the developer to undertake if City had not determined, through this Development Agreement, to insert a sufficient degree of certainty in the land use regulatory process to justify the substantial financial investment associated with development of the project. As a result of the execution of this Development Agreement, both parties can be certain that the project can proceed without disruption caused by a change in planning and development policies and requirements, and such assurance will reduce the actual or perceived risk of planning, financing and proceeding with construction of the project; and
4. That the proposed Development Agreement is consistent with the provisions of Government Code Sections 65864 through 65869.5 because it provides some assurances to the applicant to proceed with the multi-year project in accordance with existing policies, rules and regulations in return for the provision of public benefits. A noticed public hearing on the Development Agreement was held by the Planning Commission.
SECTION 4. Approval. The City Council hereby approves the Development Agreement between the City of Union City and Windflower Properties, LLC, as shown in attached Exhibit A, which is incorporated herein by reference and available for review in the City Clerk’s office during normal business hours. The City Council further authorizes the City Manager to execute the Development Agreement, on behalf of the City, in substantially the form attached as Exhibit A, and to make revisions to such Agreement, subject to the approval of the City Attorney, which do not materially or substantially increase the City’s obligations thereunder.
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Development Agreement
SECTION 5. Severability. If any provision of this Ordinance or the application thereof to any person or circumstance is held invalid, the remainder of the Ordinance, including the application of such part or provision to other persons or circumstances shall not be affected thereby and shall continue in full force and effect. To this end, provisions of this Ordinance are severable. The City Council hereby declares that it would have passed each section, subsection, subdivision, paragraph, sentence, clause, or phrase hereof irrespective of the fact that any one or more sections, subsections, subdivisions, paragraphs, sentences, clauses, or phrases be held unconstitutional, invalid, or unenforceable.
SECTION 6. Publication and effective date. Within fifteen (15) days from and after adoption, this Ordinance shall be published once in the Tri-City Voice, a newspaper of general circulation printed and published in Alameda County and circulated in the City of Union City, in accordance with California Government Code Section 36933. This Ordinance shall take effect and be enforced thirty (30) days after its adoption.
PASSED, APPROVED, AND ADOPTED by the City Council of the City of Union City at a regular meeting held on the 22nd day of March 2022, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
APPROVED:
CAROL DUTRA-VERNACI
Mayor
ATTESTED: APPROVED AS TO FORM:
ANNA M. BROWN KRISTOPHER J. KOKOTAYLO
City Clerk City Attorney
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5063626.1 1 Development Agreement
Windflower Project – Block 2
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
City of Union City
34009 Alvarado-Niles Road
Union City, CA 94587
Attn: ECD Director
Exempt from Recording Fees
Pursuant to Government
Code Sections 6103 and 27383
____________________________________________________________________________________ ___________________________________________________________________________________ APN: 087-340-002 (Space Above This Line Reserved for Recorder’s Use Only)
DEVELOPMENT AGREEMENT
BY AND BETWEEN
THE CITY OF UNION CITY
AND
WINDFLOWER PROPERTIES, LLC
FOR WINDFLOWER PROJECT – BLOCK 2
City Council/RSA Agenda 68 Tuesday, March 8, 2022
5063626.1 2 Development Agreement
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DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT (this “Development Agreement” or this “Agreement”) is entered into as of ____________, 2022 (the “Agreement Date”) by and between the City of Union City, a municipal corporation (“City”), and Windflower Properties, LLC, a California limited liability company (“Developer”). City and Developer are referred to individually as “Party,” and collectively as the “Parties.”
RECITALS
This Agreement is entered upon the basis of the following facts, understandings and intentions of City and Developer.
A. The lack of certainty in the approval of development projects can result in a waste of resources, escalate the cost of housing and other development, and discourage investment in and commitment to comprehensive planning that would make maximum efficient utilization of resources at the least economic cost to the public.
B. In order to strengthen the public planning process, encourage private participation in comprehensive planning and reduce the economic costs and risk of development, the Legislature of the State of California enacted Section 65864 et seq. of the Government Code (the “Development Agreement Legislation”), which authorizes City to enter into a development agreement for real property with any person having a legal or equitable interest in such property in order to establish certain development rights in the property.
C. The City is the owner of certain real property located within the City and bounded by Cheeves Way, Berger Way, 11th Street, and Galliano Way, known as Alameda County Assessor’s Parcel No. 087-340-002 (“Block 2”) as more particularly described in Exhibit A attached hereto and incorporated herein by reference. Block 2 is referred to herein as the “Property.”
D. The City and Developer previously entered into that certain Disposition and Development Agreement dated June 13, 2017 (as amended by the First Amendment, the “DDA”) pursuant to which the City agreed to sell the Property to the Developer, subject to the terms and conditions contained in the DDA. The City and Developer subsequently entered into that certain First Amendment to Disposition and Development Agreement dated June 11, 2019 (the “First Amendment”). Pursuant to the DDA, Developer has a legal or equitable interest in the Property as required by the Development Agreement Legislation. The State Department of Housing and Community Development has determined that pursuant to Government Code Section 54221(b)(2), disposition of the land to Developer pursuant to the DDA does not constitute disposition of surplus land.
E. Pursuant to the terms of the terms of the DDA, the Developer agreed to develop between approximately four hundred and forty-five (445) to five hundred and five (505) units of market-rate rental housing on the Property (the “Project”).
F. Under the DDA, the deadline for commencement of Project construction is December 31, 2024.
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G. Developer has applied for, and City has granted, the Project Approvals (as defined in Section 1.5) in order to protect the interests of its residents in the quality of their community and environment. The Project Approvals (as defined herein) were issued by the City Council on November 14, 2017, and were originally scheduled to expire on November 14, 2018. The Project Approvals were subsequently extended to November 14, 2020 in accordance with the provisions the Union City Municipal Code. Thereafter, Assembly Bill 1561 (2020) automatically extended the Project Approvals by 18 months. The Project Approvals are currently scheduled to expire on May 14, 2022, unless the Project Approvals are amended or exercised before that date.
H. The City and Developer desires to ensure that the Project Approvals do not expire before the deadline for the commencement of construction of the Project under the DDA to ensure that the Project can proceed as originally approved by the City Council.
I. The complexity, magnitude and long-range nature of the Project would be difficult for Developer to undertake if City had not determined, through this Development Agreement, to inject a sufficient degree of certainty in the land use regulatory process to justify the substantial financial investment associated with development of the Project. As a result of the execution of this Development Agreement, both Parties can be assured that the Project can proceed without disruption caused by a change in City planning and development policies and requirements, and such assurance will thereby reduce the actual or perceived risk of planning, financing and proceeding with construction of the Project.
J. City has determined that by entering into this Development Agreement: (1) City will ensure the productive use of property and foster orderly growth and a quality development project in the City; (2) development will proceed in accordance with the goals and policies set forth in the City of Union City’s General Plan (the “General Plan”) and will implement City’s stated General Plan policies; (3) City will receive increased property tax revenues; and (4) City will benefit from increased housing for residents of the City that is created by the Project.
K. City has also undertaken, pursuant to the California Environmental Quality Act (Public Resources Code Section 21000 et seq., hereinafter “CEQA”), the required analysis of the environmental effects that would be caused by the Project and has determined those feasible mitigation measures which will eliminate, or reduce to a less than significant level, the adverse environmental impacts of the Project. Those mitigation measures for which Developer is responsible are incorporated into, and required by, the Project Approvals.
L. In addition to the Project Approvals, the Project may require various additional land use and construction approvals, termed Subsequent Approvals (as defined in Section 1.5.4), in connection with development of the Project.
M. City has given the required notice of its intention to adopt this Development Agreement and has conducted public hearings thereon pursuant to Government Code Section 65867. As required by Government Code Section 65867.5, City has found that the provisions of this Development Agreement and its purposes are consistent with the goals, policies, standards and land use designations specified in City’s General Plan.
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N. On , 2022, the City of Union City’s Planning Commission (the “Planning Commission”), the initial hearing body for purposes of development agreement review, recommended approval of this Development Agreement pursuant to Resolution No. ____.
O. On , 2022, the City Council of the City of Union City (the “City Council”) adopted its Ordinance No. ____ (the “Approving Ordinance”) approving this Development Agreement and authorizing its execution. The Approving Ordinance will take effect on , 2022 (the “Effective Date”).
P. For the reasons recited herein, City and Developer have determined that the Project is a development for which this Development Agreement is appropriate. This Development Agreement will eliminate uncertainty regarding Project Approvals (including the Subsequent Approvals), thereby encouraging planning for, investment in and commitment to develop the Property in a manner beneficial to the City and surrounding properties. Continued use and development of the Property will in turn provide substantial employment and property tax benefits, and contribute to the provision of needed infrastructure enhancements and public benefits, thereby achieving the goals and purposes for which the Development Agreement Legislation was enacted and ensuring consistency with the City’s General Plan.
Q. The terms and conditions of this Development Agreement have undergone extensive review by City staff, the Planning Commission and the City Council at publicly noticed meetings and have been found to be fair, just and reasonable and in conformance with the City’s General Plan and the Development Agreement Legislation, and, further, the City Council finds that the economic interests of City’s residents and the public health, safety and welfare will be best served by entering into this Development Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and promises set forth herein, City and Developer agree as follows:
ARTICLE 1.
GENERAL PROVISIONS
1.1 Parties.
1.1.1. City. City is a California municipal corporation, with offices located at 34009 Alvarado-Niles Road, Union City, CA 94587. “City,” as used in this Development Agreement, includes the City of Union City and any assignee of or successor to its rights, powers and responsibilities.
1.1.2. Developer. Developer is limited liability company located at 666 Post Street, Suite 1700, San Francisco, CA 94109. “Developer,” as used in this Development Agreement, refers to Windflower Properties, LLC and includes any permitted assignee or successor-in-interest as herein provided.
1.2. Property Subject to this Development Agreement.
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The Property known as Alameda County Assessor’s Parcel No. 087-340-002, as more particularly described in Exhibit A, is subject to this Development Agreement.
1.3. Term of the Agreement.
The term (“Term”) of this Development Agreement will commence upon the Effective Date and shall continue in full force and effect for a period of five (5) years, unless earlier terminated as provided in this Agreement. The Term has been established by the Parties as a reasonable estimate of the time required to develop the Project and obtain the benefits of the Project. Nothing in this Section shall extend or change the deadline for the commencement of construction of the Project, or any other deadline, set forth in the DDA.
1.4. The Project.
1.4.1. General. The Project includes those improvements as more fully set forth and described in those plans and other information approved by the City Council on November 14, 2017 by Resolution No._______, unless modified by Subsequent Approvals (defined below).
The Parties agree that the exact number of residential units, parking spaces, and the square footage of ground floor space shall be as set forth in the Project Approvals. Construction of the Project includes construction of several on- and off-site improvements, described in this Section
1.4. 1.4.2. Improvements.
a. City Use of Ground Floor Space in Lieu of Public Art. The Parties agree that Developer may satisfy the requirements of Municipal Code Chapter 12.40 for the Project by one of the following alternatives mutually agreed upon by the City and Developer:
(i) paying the applicable Art Fee to City, (ii) installing public art reasonably approved by City, or (iii) providing the City with the right to use the Community Art Space (defined below) in accordance with a Community Art Agreement to be executed by Developer and City prior to the issuance of a final certificate of occupancy for the Project (“Community Art Agreement”). If City and Developer mutually agree upon the Community Art Space alternative, the Community Art Agreement shall provide that City shall be entitled to use the approximately 2,000 square feet of ground floor space to be located on 11th Street shown in the Project Approvals as “Commercial Space” (referred to herein as the “Community Art Space”) for display of artworks, workshops, and public events. The Community Art Agreement shall address the obligations of City and Developer with respect to the installation of interior improvements, utility charges, maintenance, repairs, and other expenses relating to the Community Art Space, as well as the exact size of the Community Art Space. The value of any below-market rate rent for the Community Art Space and the cost of any Developer obligations regarding installation of improvements, maintenance, utilities, and other expenses for the Community Art Space shall be equivalent in value to the Art Fee that Developer would otherwise be obligated to pay pursuant to Union City Municipal Code Chapter 12.40. Prior to issuance of the first building permit for the project, if the City and Developer are unable to mutually agree upon the terms of the Community Art Agreement, consistent with the provisions listed in Chapter 12.40 of the Union City Municipal Code, Developer shall either (i) pay the applicable Art Fee to City, or (ii) submit a proposal for public art to the City and receive approval by the City’s Art and Culture City Council/RSA Agenda 72 Tuesday, March 8, 2022
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Commission. In the case of the latter, public art shall be installed prior to issuance of final certificate of occupancy for the project. If the City and Developer are unable to mutually agree upon the terms of the Community Art Agreement, building area that was to be used as Community Art Space shall revert to use identified in Project Approvals. b. Nuisance. Developer shall not use or permit the use of any portion of the Project for any, noisy or dangerous trade, business manufacturing activity or occupation; for any activity which constitutes a nuisance or violated public policy; in violation of any law, ordinance rule or regulation of any governmental authority with jurisdiction over any portion of the Project.
c. DDA. Unless expressly provided otherwise, nothing herein is intended to amend or otherwise alter any term or condition contained in the DDA.
1.5. Project Approvals.
Developer has obtained, and will apply for and obtain, various environmental and land use approvals and entitlements related to the development of the Project and the Property, as described below. For purposes of this Development Agreement, the term “Project Approvals” means all of the approvals, plans and agreements pertaining to development of the Project and the Property that are approved by City prior to, concurrently with, or subsequent to, City’s approval of this Agreement, including without limitation, those described in this Section 1.5 and the subsections thereof, and shall include all Project Approvals and Subsequent Approvals pertaining to development of the Project and the Property, as such Project Approvals may be amended from time to time during the term of this Agreement. Unless modified by Subsequent Approvals (defined below), the Parties agree that the Project will include those improvements as more fully set forth and described in those plans and other information approved by the City Council on November 14, 2017 by Resolution No._______. City and Developer agree to work diligently and in good faith toward appropriate planning entitlements and building permit approvals for each phase of construction.
1.5.1. Environmental Review. The Project is within the scope of the Station District Mixed-Use Development Project EIR (certified in November 2010 by City Council Resolution No. 4072-10) and the 2040 Union City General Plan Update EIR (certified on December 10, 2019 by City Council Resolution No. ). No new information of substantial importance has been discovered requiring revisions to the impacts, mitigation measures or alternatives that were provided in either EIR. Additionally, there have not been any substantial changes with respect to City policies or requirements that would require additional environmental analysis, which determined that the project would not result in any significant environmental impacts with the incorporation of mitigation measures. All adopted mitigation measures continue to apply to the Project. Thus, pursuant to Section 15162 and 15168 of the CEQA Guidelines, the City has determined that no further analysis is required.
1.5.2. Development Agreement. On , 2022, following Planning Commission review and recommendation, and after a duly noticed public hearing, the City Council, by Ordinance No. _____, approved this Development Agreement and authorized its execution.
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5063626.1 7 Development Agreement
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1.5.3. Other Project Approvals. In order to develop the Project as contemplated in this Development Agreement, the following land use approvals have been issued:
a. Site Development Review. Site Development Review is required for the construction of the Project pursuant to Chapter 18.76 of the Union City Zoning Code. The City Council has approved Site Development Review SD-17003 for the Project.
b. Use Permit. A Conditional Use Permit is required for the Project pursuant to Chapter 18.44 of the Union City Municipal Code because the Project includes development of high density residential uses and live/work units, buildings over 65 feet in height, and a variation from the development standards to allow a reduction in storage space. The City Council has approved Conditional Use Permit UP-17-005 for the Project.
c. Disposition and Development Agreement. On June 13,
2017 the City and Developer entered into the DDA (as
subsequently amended and as defined above). Among other provisions, the DDA provides that the Project is exempt from the City’s inclusionary affordable housing requirements because the requirements that would otherwise be applicable to the Project have already been satisfied by construction of affordable housing within the City’s Station District.
1.5.4. Amendments and Subsequent Approvals. In order to develop the Project as contemplated in the DDA and this Development Agreement, the Project may require issuance of land use approvals, entitlements, development permits, and use and/or construction approvals in addition to those listed in this Section 1.5, which may include, without limitation: conditional use permits, variances, subdivision approvals, street abandonments, design review approvals, demolition permits, improvement agreements, infrastructure agreements, grading permits, building permits, right-of-way permits, lot line adjustments, site plans, sewer and water connection permits, certificates of occupancy, parcel maps, lot splits, landscaping plans, master sign programs, transportation demand management programs, encroachment permits, and may require amendments to the foregoing and/or to the existing Project Approvals (all of the foregoing new and amended permits, documents, and approvals, collectively, “Subsequent Approvals”). At such time as any Subsequent Approval applicable to the Property is approved by the City, then such Subsequent Approval shall become subject to all the terms and conditions of this Development Agreement applicable to Project Approvals, including without limitation, Developer’s vested right thereto, and shall be treated as a “Project Approval” under this Development Agreement.
1.5.5 Proposed Modifications. The Parties acknowledge that Developer intends to apply for modifications to the existing Site Development Review and the existing Use Permit for the Project to address certain aspects of the Project in order to increase Project feasibility.
These include the relocation of certain amenities within the site, the reconfiguration of parking facilities, a reduction in height of certain buildings, a modification to the scope of on-site City Council/RSA Agenda 74 Tuesday, March 8, 2022
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parking and storage, and changes to unit types and the total number of residential units, provided that the total number of residential units will not exceed 504 units. Without limiting the generality of the provisions of Section 1.5, if approved, such modifications shall be treated as “Project Approvals” and during the term of this Agreement, Developer shall have the vested right to develop the Project in accordance with them. Nothing in this section shall be interpreted as a promise or representation regarding the City’s review of the anticipated modifications or as otherwise limiting the City’s discretion to approve, deny, or modify an application to modify the existing Site Development Review and the existing Use Permit for the Project.
ARTICLE 2.
DEVELOPMENT OF THE PROPERTY
2.1. Project Development.
Developer shall have a vested right to develop the Project on the Property, in accordance with the Vested Elements (defined in Section 2.2). The vested right granted by this Article 2 shall terminate December 31, 2024, unless Developer has commenced construction of the Project. Unless otherwise agreed to by City in a written instrument, this Section is not intended to extend any deadline for commencement of Project construction set forth in the DDA.
2.2. Vested Elements.
The permitted uses of the Property, the minimum and maximum density, the intensity of use, the maximum height and size of the proposed buildings, provisions for reservation or dedication of land for public purposes, the conditions, terms, restrictions, and requirements for subsequent discretionary actions, the provisions for public improvements and financing of public improvements, and the other terms and conditions of development applicable to the Property are as set forth in:
a. The City of Union City General Plan as of the Effective Date, including any General Plan Amendments in effect as of the Effective Date (“Applicable General Plan”);
b. The Zoning Ordinance of City on the Effective Date (“Applicable Zoning Ordinance”);
c. Other rules, regulations, ordinances and policies of City applicable to development of the Property on the Effective Date, except for any and all fees applicable to the development, which shall be as set forth in Section 2.6.2 of this Agreement, (collectively, together with the Applicable General Plan and the Applicable Zoning Ordinance, the “Applicable Rules”); and
d. The Project Approvals, as they may be amended from time to time with Developer’s consent;
and all of the foregoing are hereby vested in Developer, subject to, and as provided in, the provisions of this Development Agreement (the “Vested Elements”). City hereby City Council/RSA Agenda 75 Tuesday, March 8, 2022
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agrees to be bound with respect to the Vested Elements, subject to Developer’s compliance with the terms and conditions of this Development Agreement.
2.3. Development Construction Completion.
2.3.1. Timing of Development; Pardee Finding. Because the California Supreme Court held in Pardee Construction Co. v. City of Camarillo, 37 Cal.3d 465 (1984), that the failure of the parties therein to provide for the timing of development resulted in a later-adopted initiative restricting the timing of development to prevail over the parties’ agreement, it is the Parties’ intent to address that deficiency by acknowledging and providing that, subject to any infrastructure phasing requirements that may be required by the Project Approvals or as otherwise explicitly set forth herein, Developer shall have the right (without obligation) to develop the Property in such order and at such rate and at such times as Developer deems appropriate within the exercise of its subjective business judgment.
2.3.2. Moratorium. No City-imposed moratorium or other limitation (whether relating to the rate, timing or sequencing of the development or construction of all or any part of the Property, whether imposed by ordinance, initiative, resolution, policy, order or otherwise, and whether enacted by the City Council, an agency of City, the electorate, or otherwise) affecting parcel or subdivision maps (whether tentative, vesting tentative or final), building permits, occupancy certificates or other entitlements to use or service (including, without limitation, water and sewer) approved, issued or granted within City, or portions of City, shall apply to the Property to the extent such moratorium or other limitation is in conflict with this Development Agreement. The provisions of this Section 2.3.2 shall not affect City’s compliance with moratoria or other limitations mandated by other governmental agencies or court-imposed moratoria or other limitations; provided however, the Term of this Agreement shall be extended for the period of time during which any such moratorium or other limitation prevents or delays construction of the Project.
2.3.3. No Other Requirements. Nothing in this Development Agreement is intended to create any affirmative development obligations to develop the Project at all, or liability in Developer under this Development Agreement if the development fails to occur.
Notwithstanding the foregoing, failure of Developer to develop the Project may result in a termination of the DDA.
2.4. Effect of Project Approvals and Applicable Rules; Future Rules.
2.4.1. Governing Rules. Except as otherwise explicitly provided in this Development Agreement, development of the Property shall be subject to (a) the Project Approvals (defined in Section 1.5) and (b) the Applicable Rules (defined in Section 2.2).
2.4.2. Changes in Applicable Rules; Future Rules.
a. To the extent any changes in the Applicable Rules, or any provisions of future General Plans, Specific Plans, Zoning Ordinances or other rules, regulations, ordinances or policies (whether adopted by means of ordinance, initiative, referenda, resolution, policy, order, moratorium, or other means, adopted by the City Council, Planning Commission, or any other board, commission, agency, committee, or department of City, or any officer or employee City Council/RSA Agenda 76 Tuesday, March 8, 2022
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thereof, or by the electorate) of City (collectively, “Future Rules”) are not in conflict with the Vested Elements (defined in Section 2.2), such Future Rules shall be applicable to the Project. b. No Future Rule shall invalidate or prevail over all or any part of this Development Agreement or the Project Approvals, and City shall cooperate with Developer and shall undertake such actions as may be necessary to ensure this Development Agreement remains in full force and effect. City shall not support, adopt or enact any Future Rule, or take any other action which would violate the express provisions or spirit and intent of this Development Agreement or the Project Approvals. Developer reserves the right to challenge in court any Future Rule that would conflict with the Vested Elements or this Development Agreement or reduce the development rights provided by this Development Agreement. c. A Future Rule that conflicts with the Vested Elements shall nonetheless apply to the Property if, and only if (i) consented to in writing by Developer; (ii) it is determined by City and evidenced through findings adopted by the City Council confirming that the change or provision is reasonably required in order to prevent a condition dangerous to the public health or safety, that there are no feasible alternatives to the imposition of such change or provision and how such change or provision would alleviate the dangerous condition; (iii) it is required by changes in State or Federal law as set forth in Section 2.4.3 below; (iv) it consists of changes in, or new fees permitted by, Section 2.6; or (v) it is otherwise expressly permitted by this Development Agreement.
d. Prior to the Effective Date, the Parties shall have prepared two (2) sets of the Project Approvals and Applicable Rules, one (1) set for City and one (1) set for Developer. If it becomes necessary in the future to refer to any of the Project Approvals or Applicable Rules, the contents of these sets are presumed for all purposes of this Development Agreement, absent clear clerical error or similar mistake, to constitute the Project Approvals and Applicable Rules.
2.4.3. Changes in State or Federal Laws. In accordance with California Government Code Section 65869.5, in the event that state or federal laws or regulations enacted after the Effective Date (“State or Federal Law”) prevent or preclude compliance with one or more provisions of this Development Agreement or render compliance with this Agreement substantially more expensive or time consuming, the Parties shall meet in good faith to determine the feasibility of any modification or suspension of this Development Agreement that may be necessary to comply with such State or Federal Law and to determine the effect such modification or suspension would have on the purposes and intent of this Development Agreement and the Vested Elements. Following the meeting between the Parties, the provisions of this Development Agreement may, to the extent feasible, and upon mutual agreement of the Parties, be modified or suspended, but only to the minimum extent necessary to comply with such State or Federal Law. In such an event, this Development Agreement, together with any required modifications, shall continue in full force and effect. In the event that the State or Federal Law operates to frustrate irremediably and materially the vesting of rights as set forth in this Agreement, Developer may terminate this Agreement. In addition, Developer shall have the right to challenge (by any method, including litigation) the State or Federal Law preventing compliance with, or performance of, the terms of this Development Agreement and, in the event that such challenge is successful, this Development Agreement shall remain unmodified and in full force and effect, unless (i) Developer fails to commence City Council/RSA Agenda 77 Tuesday, March 8, 2022
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construction of the Project by December 31, 2024, or (ii) Developer fails to submit a written request to City prior to the expiration date of any construction permits for an extension of time as allowed under the Zoning Ordinance. The Term of this Development Agreement may be extended for the duration of the period during which any new State or Federal Law prevents or precludes compliance with the provisions of this Development Agreement.
2.4.4. Conflicts. In the event of an irreconcilable conflict between the provisions of the Project Approvals (on the one hand) and the Applicable Rules (on the other hand), the provisions of the Project Approvals shall apply. In the event of a conflict between the Project Approvals (on the one hand) and this Development Agreement, in particular, (on the other hand), the provisions of this Development Agreement shall control.
2.5. Processing Subsequent Approvals. City will accept, make completeness determinations, and process, promptly and diligently, to completion all applications for Subsequent Approvals for the Project, in accordance with the terms of this Development Agreement.
2.5.1. Scope of Review of Subsequent Approvals. By approving the Project Approvals, City has made a policy decision that the Project is in the best interests of the public health, safety and general welfare. Accordingly, City shall not use its authority in considering any application for a discretionary Subsequent Approval to prevent or delay development of the Project provided that such application is in substantial conformity with the original Project Approvals. Instead, the Subsequent Approvals shall be deemed to be tools to implement those policy decisions. The scope of the review of applications for Subsequent Approvals shall be limited to a review of substantial conformity with the Vested Elements and the Applicable Rules (except as otherwise provided by Section 2.4), and compliance with CEQA. Where such substantial conformity/compliance exists, City shall not deny an application for a Subsequent Approval for the Project.
2.6. Development Fees, Exactions; and Conditions.
All fees, exactions, or other monetary impositions to which the Project would be subject, but for this Development Agreement, are referred to in this Development Agreement either as “Processing Fees” (as defined in Section 2.6.1) or “Impact Fees” (as defined in Section 2.6.2).
2.6.1. Processing Fees. “Processing Fees” mean fees charged on a citywide basis to cover the cost of City review of applications for any permit or other review by City departments. Applications for Subsequent Approvals for the Project shall be charged Processing Fees applicable at the time of application per City’s Master Fee Schedule to allow City to recover its actual and reasonable costs of processing Developer’s Subsequent Approvals with respect to the Project.
2.6.2. Impact Fees. “Impact Fees” means monetary fees, monetary exactions or impositions, other than taxes or assessments, whether established for or imposed upon the Project individually or as part of a class of projects, that are imposed by City on the Project in connection with any Project Approval for any purpose, including, without limitation, defraying all or a portion of the cost of public services and/or facilities construction, improvement, or City Council/RSA Agenda 78 Tuesday, March 8, 2022
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operation and maintenance attributable to the burden created by the Project. Any fee, or monetary exaction or imposition imposed on the Project which is not a Processing Fee is an Impact Fee. Developer shall pay the Impact Fees in existence at the time the Impact Fee is assessed and payable, including any Impact Fees adopted after the Effective Date. Developer shall pay the Impact Fees at the rate in effect at the time the Impact Fee is assessed and payable.
Impact fees shall be paid at the time required by the Union City Municipal Code, unless a different time is specified by this Agreement or the Project Approvals.
2.6.3. Conditions of Subsequent Approvals. In connection with any Subsequent Approvals, City shall have the right to impose reasonable conditions necessary for the Project including, without limitation, normal and customary dedications for rights of way or easements for public access, utilities, water, sewers, and drainage ; provided, however, such conditions and dedications shall not be inconsistent with the Applicable Rules or Project Approvals, nor inconsistent with the development of the Project as contemplated by this Agreement.
Notwithstanding the foregoing, no conditions imposed on Subsequent Approvals shall require dedications of, or reservations for, or construction or funding of, public infrastructure or public improvements beyond those included in the previously-approved Project Approvals. In addition, any and all conditions imposed on Subsequent Approvals for the Project must comply with Sections 2.6.1 and 2.6.2 herein.
2.7. Life of Project Approvals.
2.7.1. Life of Project Approvals. The term of all Project Approvals shall be automatically extended such that the Project Approvals remain in effect until December 31, 2024. Thereafter the Project Approvals shall expire, unless Developer has commenced construction of the Project. Nothing in this Section is intended to extend the deadline for commencement of Project construction set forth in the DDA. or create an expectation that the City will agree to amend the DDA.
2.7.2. Termination of Agreement. In the event that this Development Agreement is terminated prior to the expiration of the Term, the term of any Project Approval shall be the term otherwise applicable to the approval (including any extensions).
2.8. Further CEQA Environmental Review.
2.8.1. Reliance on EIRs. The EIRs referenced in Section 1.5.1 address the potential environmental impacts of the entire Project as it is described in the Project Approvals.
It is agreed that, in acting on any discretionary Subsequent Approvals for the Project, City will rely on those EIRs to satisfy the requirements of CEQA to the fullest extent permissible by CEQA and City will not require a new initial study, negative declaration, EIR or subsequent or supplemental EIR unless required by CEQA and will not impose on the Project any mitigation measures or other conditions of approval other than those specifically imposed by the Project Approvals or specifically required by the Applicable Rules.
2.8.2. Subsequent CEQA Review. In the event that any additional CEQA documentation is legally required for any discretionary Subsequent Approval for the Project, then the scope of such documentation shall be focused, to the extent possible consistent with City Council/RSA Agenda 79 Tuesday, March 8, 2022
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CEQA, on the specific subject matter of the Subsequent Approval, and the City shall conduct such CEQA review as expeditiously as possible.
2.9. Developer’s Right to Rebuild. Developer may renovate or rebuild the Project within the Term of this Agreement should it become necessary due to natural disaster, casualty, changes in seismic requirements, or should the buildings located within the Project become functionally outdated, within Developer’s sole discretion, due to changes in technology. Any such renovation or rebuilding shall be processed as a Subsequent Project Approval, shall be subject to the Vested Elements, and shall comply with the Project Approvals, the building regulations existing at the time of such rebuilding or reconstruction, and the requirements of CEQA.
ARTICLE 3.
ANNUAL REVIEW
3.1. Annual Review.
The annual review required by California Government Code Section 65865.1 will be conducted for the purposes and in the manner stated in those laws as further provided herein. As part of that review, City and Developer shall have a reasonable opportunity to assert action(s) that either Party believes have not been undertaken in accordance with the other Party a justification for the other Party’s position with respect to such action(s), and to take such actions as permitted by law. The procedure set forth in this Article shall be used by Developer and City in complying with the annual review requirement. The City and Developer agree that the annual review process will review compliance by Developer and City with the obligations under this Development Agreement but will not review compliance with other Project Approvals or other agreements between City and Developer.
3.2. Commencement of Process; Developer Compliance Letter.
At least fifteen (15) days prior to the anniversary of the Effective Date each year, Developer shall submit a letter to the Director of City’s Economic & Community Development Department demonstrating Developer’s good faith compliance with the material terms and conditions of this Development Agreement and shall include in the letter a statement that the letter is being submitted to City pursuant to the requirements of Government Code Section 65865.1.
3.3. Economic & Community Development Director Review.
Within thirty (30) days after the receipt of Developer’s letter, the Economic & Community Development Director shall review Developer’s submission and determine whether Developer has, for the year under review, demonstrated good faith compliance with the material terms and conditions of this Development Agreement. If Developer has demonstrated good faith compliance, than the Economic & Community Development Director shall make such a finding and send a letter back to Developer describing the Economic & Community Development Director’s finding and any comments.
3.4. Economic & Community Development Director Noncompliance Finding.
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If the Economic & Community Development Director finds and determines that there is substantial evidence that Developer has not complied in good faith with the material terms and conditions of this Development Agreement and that Developer is in material breach of this Development Agreement for the year under review, the Economic & Community Development Director shall issue and deliver to Developer a written “Notice of Default” specifying in detail the nature of the failures in performance that the Economic & Community Development Director claims constitutes material noncompliance, all facts demonstrating substantial evidence of material noncompliance, and the manner in which such noncompliance may be satisfactorily cured in accordance with the Development Agreement. In the event that the material noncompliance is an Event of Default pursuant to ARTICLE 5 herein, the Parties shall be entitled to their respective rights and obligations under both ARTICLE 3 and 5 herein, except that the particular entity allegedly in default shall be accorded only one of the 60-day cure periods referred to in Sections 3.5 and 5.1 herein.
3.5. Cure Period.
If the Economic & Community Development Director finds that Developer is not in compliance, the Economic & Community Development Director shall grant a reasonable period of time for Developer to cure the alleged noncompliance. The Economic & Community Development Director shall grant a cure period of at least sixty (60) days and shall extend the sixty (60) day period if Developer is proceeding in good faith to cure the noncompliance and additional time is reasonably needed. At the conclusion of the cure period, the Economic & Community Development Director shall either (i) find that Developer is in compliance; or (ii) find that Developer is not in compliance.
3.6. Referral of Noncompliance to City Council.
If Developer fails to cure the alleged noncompliance to the Economic & Community Development Director’s reasonable satisfaction during the prescribed cure period and any extensions thereto, the Economic & Community Development Director shall refer the alleged noncompliance to the City Manager who shall forward to the City Council if Developer requests a hearing before the City Council. The Economic & Community Development Director shall prepare a staff report to the City Council which shall include, in addition to Developer’s letter, (i) demonstration of City’s good faith compliance with the terms and conditions of this Development Agreement; (ii) the Notice of Default; and (iii) a description of any cure undertaken by Developer during the cure period.
3.7. Delivery of Documents.
At least ten (10) business days prior to any City hearing regarding Developer’s compliance with this Development Agreement, City shall deliver to Developer all staff reports and all other relevant documents pertaining to the hearing.
3.8. City Council Compliance Finding.
If the City Council, following a noticed public hearing pursuant to Section 3.6, determines that Developer is in compliance with the material terms and conditions of this Development Agreement, the annual review shall be deemed concluded. City shall, at City Council/RSA Agenda 81 Tuesday, March 8, 2022
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Developer’s request, issue and have recorded a Certificate of Compliance indicating Developer’s compliance with the terms of this Development Agreement.
3.9. City Council Noncompliance Finding.
If the City Council, at a properly noticed public hearing pursuant to Section 3.6, finds and determines, on the basis of substantial evidence, that Developer has not complied in good faith with the material terms or conditions of this Development Agreement and that Developer is in material breach of this Development Agreement, Developer will have a reasonable time determined by the City Council to meet the reasonable terms of compliance approved by the City Council, which time shall be not less than fifteen (15) days. If Developer does not complete the terms of compliance within the time specified, the City Council shall hold a public hearing regarding termination or modification of this Development Agreement.
Notification of intention to modify or terminate this Development Agreement shall be delivered to Developer by certified mail containing: (i) the time and place of the City Council hearing; (ii) a statement as to whether City proposes to terminate or modify this Development Agreement and the terms of any proposed modification; and (iii) any other information reasonably necessary to inform Developer of the nature of the proceedings. At the time of the hearing, Developer shall be given an opportunity to be heard. The City Council may impose conditions to the action it takes as necessary to protect the interests of City; provided that any modification or termination of this Development Agreement pursuant to this provision shall bear a reasonable nexus to, and be proportional in severity to the magnitude of the alleged breach, and in no event shall termination be permitted except in accordance with ARTICLE 5 herein.
3.10. Relationship to Default Provisions.
The above procedures supplement and do not replace that provision of Section 5.1 of this Development Agreement whereby either City or Developer may, at any time, assert matters which either Party believes have not been undertaken in accordance with this Development Agreement by delivering a written Notice of Default and following the procedures set forth in Section 5.1.
3.12. Reimbursement of City's Costs Incurred in Bringing About Cure Developer shall be obligated to reimburse to City all reasonable costs, expenses, damages and reasonable attorneys’ fees incurred as a result of any Developer default including all costs incurred in bringing about Developer's cure of any such default.
ARTICLE 4.
AMENDMENTS
4.1. Amendments to Development Agreement Legislation.
This Development Agreement has been entered into in reliance upon the provisions of the Development Agreement Legislation as those provisions existed at the Effective Date. No amendment or addition to those provisions or any other State or Federal Law (defined in Section City Council/RSA Agenda 82 Tuesday, March 8, 2022
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2.4.3) that would materially adversely affect the interpretation or enforceability of this Development Agreement or would prevent or preclude compliance with one or more provisions of this Development Agreement shall be applicable to this Development Agreement or render compliance with this Agreement substantially more expensive or time consuming, unless such amendment or addition is specifically required by the change in law, or is mandated by a court of competent jurisdiction. In the event of the application of such a change in law, the Parties shall meet in good faith to determine the feasibility of any modification or suspension that may be necessary to comply with such new law or regulation and to determine the effect such modification or suspension would have on the purposes and intent of this Development Agreement and the Vested Elements. Following the meeting between the Parties, the provisions of this Development Agreement may, to the extent feasible, and upon mutual agreement of the Parties, be modified or suspended but only to the minimum extent necessary to comply with such new law or regulation. If such amendment or change is permissive (as opposed to mandatory), this Development Agreement shall not be affected by same unless the Parties mutually agree in writing to amend this Development Agreement to permit such applicability.
Developer and/or City shall have the right to challenge any new law or regulation preventing compliance with the terms of this Development Agreement, and in the event such challenge is successful, this Development Agreement shall remain unmodified and in full force and effect.
The Term of this Development Agreement may be extended for the duration of the period during which such new law or regulation precludes compliance with the provisions of this Development Agreement.
4.2 Amendments to or Cancellation of Development Agreement.
This Development Agreement may be amended from time to time or canceled in whole or in part by mutual consent of both Parties in writing in accordance with the provisions of the Development Agreement Legislation. Review and approval of an amendment to this Development Agreement shall be strictly limited to consideration of only those provisions to be added or modified. No amendment, modification, waiver or change to this Development Agreement or any provision hereof shall be effective for any purpose unless specifically set forth in writing that expressly refers to this Development Agreement and signed by the duly authorized representatives of both Parties. Except as provided in Section 4.3, 4.4.1 or 4.4.2, all amendments to this Development Agreement shall be recommended for approval by the Planning Commission and approved by the City Council and, upon such approval, will become part of the Project Approvals.
4.3. Operating Memoranda.
The provisions of this Development Agreement require a close degree of cooperation between City and Developer and development of the Property hereunder may demonstrate that refinements and clarifications are appropriate with respect to the details of performance of City and Developer. If and when, from time to time, during the Term of this Development Agreement, City and Developer agree that such clarifications are necessary or appropriate, City and Developer shall effectuate such clarifications through operating memoranda approved by City and Developer, which, after execution, shall be attached hereto as addenda and become a part hereof, and may be further clarified from time to time as necessary with future approval by City and Developer. No such operating memoranda shall constitute an City Council/RSA Agenda 83 Tuesday, March 8, 2022
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amendment to this Development Agreement requiring public notice or hearing. The City Manager, in consultation with the City Attorney, shall make the determination on behalf of City whether a requested clarification may be effectuated pursuant to this Section 4.3 or whether the requested clarification is of such a character to constitute an amendment hereof pursuant to Section 4.2 above. The City Manager shall be authorized to execute any operating memoranda hereunder on behalf of City.
4.4. Amendments to Project Approvals.
Notwithstanding any other provision of this Development Agreement, Developer may seek and City may review and grant amendments or modifications to the Project Approvals (including the Subsequent Approvals) subject to the following (except that the procedures for amendment of this Development Agreement are set forth in Section 4.2 herein).
4.4.1. Amendments to Project Approvals. Project Approvals (except for this Development Agreement the amendment process for which is set forth in Section 4.2) may be amended or modified from time to time, but only at the written request of Developer or with the written consent of Developer (at its sole discretion) and in accordance with Section 2.4. All amendments to the Project Approvals shall automatically become part of the Project Approvals; provided however, if an amendment to the Project Approvals constitutes a “Major Amendment” as defined in Section 4.4.1or as reasonably determined by the Economic & Community Development Director, Developer consents to the review of such Major Amendment’s before the Planning Commission for approval or recommendation to the City Council, whose review and approval or denial shall be final, subject to any applicable appeal rights of Developer. The permitted uses of the Property, maximum unit count, the maximum height and size of the proposed buildings, any material variations from development standards identified in Section
18.38.250 of the Zoning Ordinance, the conditions, terms, restrictions and requirements for subsequent discretionary actions, the provisions for public improvements and financing of public improvements, and the other terms and conditions of development as set forth in all such amendments, except those constituting a Major Amendment shall be automatically vested pursuant to this Development Agreement, without requiring an amendment to this Development Agreement. Amendments to the Project Approvals shall be governed by the Project Approvals and the Applicable Rules, subject to Section 2.4. City shall not request, process or consent to any amendment to the Project Approvals that would affect the Property or the Project without Developer’s prior written consent. As used in this Agreement, the term “Major Amendment” means a modification that affects (a) the Term of this Agreement, (b) permitted uses of the Property, (c) provisions for reservation or dedication of land, (d) the density or intensity of use of the Property, (e) the maximum height or size of proposed buildings, (f) the location and maintenance of on-site or off-site public improvements, (g) any exceptions to applicable development standards as allowed by Section 18.38.250 of the Union City Municipal Code, or (h) such other modification Economic & Community Development Director reasonably determines to constitute a significant change in the Project.
4.4.2. Administrative Amendments. Upon the request of Developer for an amendment or modification of any Project Approval, the Economic & Community Development Director or his/her designee shall determine: (a) whether the requested amendment or modification is minor when considered in light of the Project as a whole; and (b) whether the requested amendment or City Council/RSA Agenda 84 Tuesday, March 8, 2022
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modification substantially conforms with the material terms of this Development Agreement and the Applicable Rules. If the Economic & Community Development Director or his/her designee finds that the requested amendment or modification is both minor and substantially conforms with the material terms of this Development Agreement Project Approvals, and the Applicable Rules, the amendment or modification shall be determined to be an “Administrative Amendment,” and the Economic & Community Development Director or his or her designee may approve the Administrative Amendment, without public notice or a public hearing. Without limiting the generality of the foregoing, lot line adjustments, minor alterations in vehicle circulation patterns or vehicle access points, variations in the location of structures that do not substantially alter the design concepts of the Project Approvals, ; minor changes to architectural features required to comply with applicable Building Code provisions or to address supply issues, substitution of comparable landscaping for any landscaping shown on any development plan or landscape plan, variations in the location or installation of utilities and other infrastructure connections and facilities that do not substantially alter design concepts of the Project Approvals, and minor adjustments to the Property legal description, approved building façade colors and/or exterior materials, courtyard dimensions, and location and square footage of common area amenities shall be deemed to be minor amendments or modifications that may be approved by the Economic & Community Development Director without review by the Planning Commission or City Council. Any request of Developer for an amendment or modification to a Project Approval that is determined not to be an Administrative Amendment as set forth above shall be subject to review, consideration and action pursuant to the Applicable Rules and this Agreement.
ARTICLE 5.
DEFAULT, REMEDIES AND TERMINATION
5.1 Events of Default.
Subject to any extensions of time by mutual consent of the Parties in writing, and subject to the provisions of Section 9.2 hereof regarding permitted delays and a Mortgagee’s right to cure pursuant to Section 8.3 hereof, any failure by either Party to perform any material term or provision of this Development Agreement (not including any failure by Developer to perform any term or provision of any other Project Approvals) shall constitute an “Event of Default,” (i) if such defaulting Party does not cure such failure within sixty (60) days (such sixty (60) day period is not in addition to any (60) day cure period under Section 3.6, if Section 3.6 is applicable) following written notice of default from the other Party, where such failure is of a nature that can be cured within such sixty (60) day period, or (ii) if such failure is not of a nature which can be cured within such sixty (60) day period, the defaulting Party does not within such sixty (60) day period commence substantial efforts to cure such failure, or thereafter does not within a reasonable time prosecute to completion with diligence and continuity the curing of such failure.
Any notice of default given hereunder shall specify in detail the nature of the failures in performance that the noticing Party claims constitutes the Event of Default, all facts constituting substantial evidence of such failure, and the manner in which such failure may be satisfactorily cured in accordance with the terms and conditions of this Development Agreement. During the time periods herein specified for cure of a failure of performance, the Party charged therewith City Council/RSA Agenda 85 Tuesday, March 8, 2022
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shall not be considered to be in default for purposes of (a) termination of this Development Agreement, (b) institution of legal proceedings with respect thereto, or (c) issuance of any approval with respect to the Project. The waiver by either Party of any default under this Development Agreement shall not operate as a waiver of any subsequent breach of the same or any other provision of this Development Agreement.
5.2. Meet and Confer.
During the time periods specified in Section 5.1 for cure of a failure of performance, the Parties shall meet and confer in a timely and responsive manner, to attempt to resolve any matters prior to litigation or other action being taken, including without limitation any action in law or equity; provided, however, nothing herein shall be construed to extend the time period for this meet and confer obligation beyond the 60-day cure period referred to in Section 5.1 (even if the 60-day cure period itself is extended pursuant to Section 5.1) unless the Parties agree otherwise in writing.
5.3. Remedies and Termination.
If, after notice and expiration of the cure periods and procedures set forth in Sections 5.1 and 5.2, the alleged Event of Default is not cured, the non-defaulting Party, at its option, may institute legal proceedings pursuant to Section 5.4 of this Development Agreement and/or terminate this Development Agreement pursuant to Section 5.5 herein. In the event that this Development Agreement is terminated pursuant to Section 5.5 herein and litigation is instituted that results in a final decision that such termination was improper, then this Development Agreement shall immediately be reinstated as though it had never been terminated.
5.4. Legal Action by Parties.
5.4.1. Remedies. Either Party may, in addition to any other rights or remedies, institute legal action to cure, correct or remedy any default, enforce any covenant or agreement herein, enjoin any threatened or attempted violation thereof, enforce by specific performance the obligations and rights of the Parties hereto or to obtain any remedies consistent with the purpose of this Development Agreement. All remedies shall be cumulative and not exclusive of one another, and the exercise of any one or more of these remedies shall not constitute a waiver or election with respect to any other available remedy. Without limiting the foregoing, Developer reserves the right to challenge in court any Future Rules that would conflict with the Vested Elements or the Subsequent Approvals for the Project or reduce the development rights provided by the Project Approvals.
5.4.2. No Damages. In no event shall either Party, or its boards, commissions, officers, agents or employees, be liable in damages for any default under this Development Agreement, it being expressly understood and agreed that the sole legal remedy available to either Party for a breach or violation of this Development Agreement by the other Party shall be an action in mandamus, specific performance or other injunctive or declaratory relief to enforce the provisions of this Development Agreement by the other Party, or to terminate this Development Agreement. This limitation on damages shall not preclude actions by a Party to enforce payments of monies or the performance of obligations requiring an obligation of City Council/RSA Agenda 86 Tuesday, March 8, 2022
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money from the other Party under the terms of this Development Agreement including, but not limited to obligations to pay attorneys’ fees and obligations to advance monies or reimburse monies. In connection with the foregoing provisions, each Party acknowledges, warrants and represents that it has been fully informed with respect to, and represented by counsel of such Party’s choice in connection with, the rights and remedies of such Party hereunder and the waivers herein contained, and after such advice and consultation has presently and actually intended, with full knowledge of such Party’s rights and remedies otherwise available at law or in equity, to waive and relinquish such rights and remedies to the extent specified herein, and to rely to the extent herein specified solely on the remedies provided for herein with respect to any breach of this Development Agreement by the other Party.
5.5.Termination.
5.5.1. Expiration of Term. Except as otherwise provided in this Development Agreement, this Development Agreement shall be deemed terminated and of no further effect upon the expiration of the Term of this Development Agreement as set forth in Section 1.3.
5.5.2. Survival of Obligations. Upon the termination or expiration of this Development Agreement as provided herein, neither Party shall have any further right or obligation with respect to the Property under this Development Agreement except with respect to any obligation that is specifically set forth as surviving the termination or expiration of this Development Agreement. The termination or expiration of this Development Agreement shall not affect the validity of the Project Approvals (other than this Development Agreement) for the Project.
5.5.3. Termination by City. Notwithstanding any other provision of this Development Agreement, City shall not have the right to terminate this Development Agreement with respect to all or any portion of the Property before the expiration of its Term unless City complies with all termination procedures set forth in the Development Agreement Legislation and there is an alleged Event of Default by Developer and such Event of Default is not cured pursuant to ARTICLE 3 herein or this ARTICLE 5 and Developer has first been afforded an opportunity to be heard regarding the alleged default before the City Council and this Development Agreement is terminated only with respect to that portion of the Property to which the default applies.
ARTICLE 6.
COOPERATION AND IMPLEMENTATION
6.1. Further Actions and Instruments.
Each Party to this Development Agreement shall cooperate with and provide reasonable assistance to the other Party and take all actions necessary to ensure that the Parties receive the benefits of this Development Agreement, subject to satisfaction of the conditions of this Development Agreement. Upon the request of any Party, the other Party shall promptly execute, with acknowledgment or affidavit if reasonably required, and file or record such required instruments and writings and take any actions as may be reasonably necessary under the terms of this Development Agreement to carry out the intent and to fulfill the provisions of this City Council/RSA Agenda 87 Tuesday, March 8, 2022
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Development Agreement or to evidence or consummate the transactions contemplated by this Development Agreement.
6.2. Regulation by Other Public Agencies.
Other public agencies not within the control of City may possess authority to regulate aspects of the development of the Property separately from or jointly with City, and this Development Agreement does not limit the authority of such other public agencies.
Nevertheless, City shall be bound by, and shall abide by, its covenants and obligations under this Development Agreement in all respects when dealing with any such agency regarding the Property. To the extent that City, the City Council, the Planning Commission or any other board, agency, committee, department or commission of City constitutes and sits as any other board, agency, commission, committee, or department, it shall not take any action that conflicts with City’s obligations under this Agreement unless required to by any State or Federal law.
6.3. Other Governmental Permits and Approvals; Grants.
Developer shall apply in a timely manner in accordance with Developer’s construction schedule for the permits and approvals from other governmental or quasi-governmental agencies having jurisdiction over the Project as may be required for the development of, or provision of services to, the Project. Developer shall comply with all such permits, requirements and approvals. City shall cooperate with Developer in its endeavors to obtain (a) such permits and approvals and (b) any grants or other financing for the Project for which Developer applies.
6.4. Cooperation in the Event of Legal Challenge.
6.4.1. The filing of any third party lawsuit(s) against City or Developer relating to this Agreement, the Project Approvals or other development issues affecting the Property shall not delay or stop the development, processing or construction of the Project or approval of any Subsequent Approvals, unless the third party obtains a court order preventing the activity. City shall not stipulate to or cooperate in the issuance of any such order.
6.4.2. In the event of any administrative, legal or equitable action instituted by a third party challenging the validity of any provision of this Development Agreement, the procedures leading to its adoption, the Project Approvals for the Project (“Initial Litigation Challenge”), Developer and City each shall have the right, in its sole discretion, to elect whether or not to defend such action, to select its own counsel, and to control its participation and conduct in the litigation in all respects permitted by law. If an Initial Litigation Challenge is filed, upon receipt of the petition, the Parties will have 20 days to meet and confer regarding the merits of such Initial Litigation Challenge and to determine whether to defend against the Initial Litigation Challenge, which period may be extended by the Parties’ mutual agreement so long as it does not impact any litigation deadlines.
If, after meeting and conferring, the Parties mutually agree to defend against the Initial Litigation Challenge, then the following shall apply: (i) the Parties hereby agree to affirmatively cooperate in defending said action and to execute a joint defense and confidentiality agreement in order to share and protect information, under the joint defense privilege recognized under applicable law; (ii) for the purposes of cost-efficiency and City Council/RSA Agenda 88 Tuesday, March 8, 2022
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coordination, the Parties shall first consider defending the Initial Litigation Challenge jointly, with counsel and under terms of joint representation mutually acceptable to the City and Developer (each in its sole discretion), at the Developer’s sole cost and expense; and (iii) if the Parties cannot reach timely and mutual agreement on a joint counsel, and Developer continues to elect (in its sole discretion) to defend against the Initial Litigation Challenge, then Developer shall take the lead role defending such Initial Litigation Challenge and may, in its sole discretion, elect to be represented by the legal counsel of its choice, in which case, City may elect to be separately represented by the outside legal counsel of its choice in any such action or proceeding. The City Manager is authorized to negotiate and enter into a joint defense agreement in a form acceptable to the City Attorney. Such joint defense agreement shall also provide that any proposed settlement of an Initial Litigation Challenge shall be subject to City’s and Developer’s approval, each in its reasonable discretion.
As part of the cooperation in defending an action, City and Developer shall coordinate their defense in order to make the most efficient use of legal counsel and to share and protect information. Developer and City shall each have sole discretion to terminate its defense at any time. If Developer elects, in its sole and absolute discretion, not to defend against the Initial Litigation Challenge, it shall deliver written notice to the City regarding such decision. If Developer elects not to defend, the City has the right, but not the obligation, to proceed to defend against the Initial Litigation Challenge and shall take the lead role defending such Initial Litigation Challenge and may, in its sole discretion, elect to be represented by the legal counsel of its choice, at its sole cost and expense. If Developer elects not to defend, the City has the right, but not the obligation, to terminate this Agreement and consider the Developer’s application for any related Project Approvals withdrawn. The City shall not settle any third party litigation of Project Approvals without Developer’s consent, which consent shall not be unreasonably withheld, conditioned or delayed.
6.5. Indemnification
Developer shall indemnify, defend (with counsel reasonably acceptable to City) and hold harmless City and any City Councilmembers, commissioners and staff acting in their official capacity (“City Parties”) from and against any and all claims, costs, liabilities and damages (collectively, “Claims”), including Claims for any bodily injury, death, or property damage, arising or resulting directly or indirectly from an Initial Litigation Challenge, the development or construction of the Project or any portion thereof by or on behalf of Developer, or from any acts, omissions, negligence or willful misconduct of Developer, whether such acts, omissions, negligence or willful misconduct are by Developer or any of Developer’s contractors, subcontractors, agents or employees. The foregoing indemnity shall not apply to any Claims to the extent arising or resulting from the gross negligence or willful misconduct of City or the City Parties. Developer’s obligations under this Section shall survive the termination of this Agreement.
6.6. Prevailing Wage
If required by applicable State or Federal Laws, Developer and its contractors and agents shall comply with California Labor Code Section 1720 et seq, and the regulations adopted pursuant thereto (“Prevailing Wage Laws”) with respect to the Project, and shall be responsible City Council/RSA Agenda 89 Tuesday, March 8, 2022
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for carrying out the requirements of such provisions. Developer shall indemnify, defend (with counsel approved by City) and hold the City Parties harmless from any Claims which directly or indirectly, in whole or in part, are caused by, arise in connection with, result from the payment or requirement of payment of prevailing wages in the construction of the Project, the failure to comply with any state or federal labor laws, regulations or standards in connection with this Agreement, including but not limited to the Prevailing Wage Laws, or any act or omission of Developer related to this Agreement with respect to the payment or requirement of payment of prevailing wages or the requirement of competitive bidding, whether or not any insurance policies shall have been determined to be applicable to any such Claims. The foregoing indemnity shall not apply to any Claims to the extent arising or resulting from the gross negligence or willful misconduct of City or the City Parties.
6.7. Revision to Project.
In the event of a court order issued as a result of a successful legal challenge, City shall, to the extent permitted by law or court order, in good faith seek to comply with the court order in such a manner as will maintain the integrity of the Project Approvals and avoid or minimize to the greatest extent possible (i) any impact to the development of the Project as provided for in, and contemplated by, the Vested Elements, or (ii) any conflict with the Vested Elements or frustration of the intent or purpose of the Vested Elements.
6.8. State, Federal or Case Law.
Where any state, federal or case law allows City to exercise any discretion or take any action with respect to that law, City shall, in an expeditious and timely manner, at the earliest possible time, (a) exercise its discretion in such a way as to be consistent with, and carry out the terms of, this Development Agreement and (b) take such other actions as may be necessary to carry out in good faith the terms of this Development Agreement.
6.9. Defense of Agreement.
City shall take all actions that are necessary or advisable to uphold the validity and enforceability of this Development Agreement. If this Development Agreement is adjudicated or determined to be invalid or unenforceable, City agrees, subject to all legal requirements, to consider modifications to this Development Agreement to render it valid and enforceable to the extent permitted by applicable law. Developer shall pay all of City’s reasonable costs, including reasonable attorneys’ fees and experts’ costs, incurred to modify or defend this Development Agreement.
ARTICLE 7.
TRANSFERS AND ASSIGNMENTS
7.1. Right to Assign.
During any time that the City is the owner of the Property, Developer may not sell, assign or transfer in whole or in part its rights, duties and obligations under this Agreement (“Transfer”), to any person or entity at any time during the Term of this Development City Council/RSA Agenda 90 Tuesday, March 8, 2022
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Agreement without the prior consent of City, which consent shall not be unreasonably withheld.
This prohibition shall not apply to (a) transfers of Developer’s interest in this Agreement to a limited partnership in which Developer or its affiliate is a general partner, (b) transfers of Developer’s interest in this Agreement to a limited liability company in which Developer or its affiliate is a manager or managing member, (c) transfers of limited partnership interests or membership interests in such limited partnership or limited liability company, or (d) transfers to an entity that is majority owned or controlled by the Developer or the members or affiliates of the Developer. In the event of a transfer of a portion of the Property, Developer shall have the right to Transfer its rights, duties and obligations under this Development Agreement that are applicable to the transferred portion, and to retain all rights, duties and obligations applicable to the retained portions of the Property. Upon Developer’s request, City shall cooperate with Developer and any proposed transferee to allocate rights, duties and obligations under this Development Agreement and the Project Approvals among the transferred Property and the retained Property.
7.2. Release upon Transfer.
Upon the Transfer of Developer’s rights and interests under this Development Agreement pursuant to Section 7.1, Developer shall automatically be released from its obligations and liabilities under this Development Agreement with respect to that portion of the Property transferred, and any subsequent default or breach with respect to the transferred rights and/or obligations shall not constitute a default or breach with respect to the retained rights and/or obligations under this Development Agreement, provided that (i) Developer has provided to City written notice of such Transfer, and (ii) the transferee executes and delivers to City a written agreement in which (a) the name and address of the transferee is set forth and (b) the transferee expressly and unconditionally assumes all of the obligations of Developer under this Development Agreement with respect to that portion of the Property transferred. Upon any transfer of any portion of the Property and the express assumption of Developer’s obligations under this Development Agreement by such transferee, City agrees to look solely to the transferee for compliance by such transferee with the provisions of this Development Agreement as such provisions relate to the portion of the Property acquired by such transferee.
A default by any transferee shall only affect that portion of the Property owned by such transferee and shall not cancel or diminish in any way Developer’s rights hereunder with respect to any portion of the Property retained by Developer. The transferor and the transferee shall each be solely responsible for the reporting and annual review requirements relating to the portion of the Property owned by such transferor/transferee, and any amendment to this Development Agreement between City and a transferor or a transferee shall only affect the portion of the Property owned by such transferor or transferee. Failure to deliver a written assumption agreement hereunder shall not affect the running of any covenants herein with the land, as provided in Section 7.3 below, nor shall such failure negate, modify or otherwise affect the liability of any transferee pursuant to the provisions of this Development Agreement.
7.3. Covenants Run with the Land.
All of the provisions, agreements, rights, powers, standards, terms, covenants and obligations contained in this Development Agreement shall be binding upon the Parties and their respective successors (by merger, reorganization, consolidation, or otherwise) and City Council/RSA Agenda 91 Tuesday, March 8, 2022
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assigns, devisees, administrators, representatives, lessees, and all of the persons or entities acquiring the Property or any portion thereof, or any interest therein, whether by operation of law or in any manner whatsoever, and shall inure to the benefit of the Parties and their respective successors (by merger, consolidation or otherwise) and assigns. All of the provisions of this Development Agreement shall be enforceable as equitable servitudes and constitute covenants running with the land pursuant to applicable law, including but not limited to, Section 1468 of the Civil Code of the State of California. Each covenant to do, or refrain from doing, some act on the Property hereunder (i) is for the benefit of such Property and is a burden upon such Property, (ii) runs with such Property, (iii) is binding upon each Party and each successive owner during its ownership of such Property or any portion thereof, and (iv) each person or entity having any interest therein derived in any manner through any owner of such Property, or any portion thereof, and shall benefit the Property hereunder, and each other person or entity succeeding to an interest in such Property. The provisions of this Section 7.3 shall be in effect until the expiration of the Term or sooner termination of this Agreement.
ARTICLE 8.
MORTGAGEE PROTECTION; CERTAIN RIGHTS OF CURE
8.1. Mortgagee Protection.
This Development Agreement shall not prevent or limit Developer in any manner, at Developer’s sole discretion, from encumbering the Property or any portion thereof or any improvement thereon by any mortgage, deed of trust or other security device securing financing with respect to the Property (“Mortgage”). This Development Agreement shall be superior and senior to any lien placed upon the Property or any portion thereof after the date of recording this Development Agreement, including the lien of any Mortgage. Notwithstanding the foregoing, no breach hereof shall defeat, render invalid, diminish or impair the lien of any Mortgage made in good faith and for value, but all of the terms and conditions contained in this Development Agreement shall be binding upon and effective against and inure to the benefit of any person or entity, including any deed of trust beneficiary or mortgagee (“Mortgagee”) who acquires title to the Property, or any portion thereof, by foreclosure, trustee’s sale, deed in lieu of foreclosure, or otherwise.
8.2. Mortgagee Not Obligated.
Notwithstanding the provisions of Section 8.1 above, no Mortgagee shall have any obligation or duty under this Development Agreement to perform Developer’s obligations or other affirmative covenants of Developer hereunder; provided, however, that a Mortgagee shall not be entitled to devote the Property to any uses or to construct any improvements thereon other than those uses or improvements provided for or authorized by this Development Agreement, or by the Project Approvals and Applicable Rules.
8.3. Notice of Default to Mortgagee; Right of Mortgagee to Cure.
If City receives a notice from a Mortgagee requesting a copy of any Notice of Default given to Developer hereunder and specifying the address for service thereof, then City shall deliver to such Mortgagee, concurrently with service thereon to Developer, any notice given to City Council/RSA Agenda 92 Tuesday, March 8, 2022
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Developer with respect to any claim by City that Developer has committed a default, and if City makes a determination of noncompliance hereunder, City shall likewise serve notice of such noncompliance on such Mortgagee concurrently with service thereof on Developer. Each Mortgagee shall have the right (but not the obligation) during the same period available to Developer to cure or remedy, or to commence to cure or remedy, the Event of Default claimed or the areas of noncompliance set forth in City’s notice.
8.4. No Supersedure.
Nothing in this ARTICLE 8 shall be deemed to supersede or release a Mortgagee or modify a Mortgagee’s obligations under any subdivision improvement agreement or other obligation incurred with respect to the Project outside this Development Agreement, nor shall any provision of this ARTICLE 8 constitute an obligation of City to such Mortgagee, except as to the notice requirements of Section 8.3.
8.5. Technical Amendments.
City agrees to reasonably consider and approve interpretations and/or technical amendments to the provisions of this Agreement that are required by lenders or equity investors providing financing for the acquisition of the Property and construction of the improvements on the Property or any refinancing thereof and to otherwise cooperate in good faith to facilitate Developer’s negotiations with lenders and investors.
ARTICLE 9.
MISCELLANEOUS PROVISIONS
9.1. Limitation on Liability.
Notwithstanding anything to the contrary contained in this Development Agreement, in no event shall any member, officer, agent or employee of City be personally liable for any breach of this Development Agreement by City or for any amount which may become due to Developer under the terms of this Development Agreement.
9.2. Force Majeure.
The Term of this Development Agreement and the Project Approvals and the time within which Developer shall be required to perform any act under this Development Agreement shall be extended by a period of time equal to the number of days during which performance of such act is delayed unavoidably and beyond the reasonable control of the Party seeking the delay by strikes, lock-outs and other labor difficulties, Acts of God, inclement weather, failure or inability to secure materials or labor by reason of priority or similar regulations or order of any governmental or regulatory body, changes in local, state or federal laws or regulations, any development moratorium or any action of other public agencies that regulate land use, development or the provision of services prevents, prohibits or delays construction of the Project, enemy action, civil disturbances, wars, terrorist acts, fire, unavoidable casualties, litigation involving this Agreement or the Project Approvals, or any other cause beyond the reasonable control of Developer which substantially interferes with City Council/RSA Agenda 93 Tuesday, March 8, 2022
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carrying out the development of the Project. Such extension(s) of time shall not constitute an Event of Default and shall occur at the request of any Party. In addition, the Term of this Development Agreement and any subdivision map or any of the other Project Approvals shall not include any period of time during which (i) a development moratorium including, but not limited to, a water or sewer moratorium, is in effect; (ii) the actions of public agencies that regulate land use, development or the provision of services to the Property prevent, prohibit or delay either the construction, funding or development of the Project; or (iii) there is any mediation, arbitration, litigation or other administrative or judicial proceeding pending involving the Vested Elements, or Project Approvals. The Term of the Project Approvals shall therefore be extended by the length of any development moratorium or similar action; the amount of time any actions of public agencies prevent, prohibit or delay the construction, funding or development of the Project; or the amount of time to finally resolve any mediation, arbitration, litigation or other administrative or judicial proceeding involving the Vested Elements, or Project Approvals. Furthermore, in the event the issuance of a building permit for any part of the Project is delayed as a result of Developer’s inability to obtain any other required permit or approval, then the Term of this Development Agreement shall be extended by the period of any such delay.
9.3. Notices, Demands and Communications Between the Parties.
Formal written notices, demands, correspondence and communications between City and Developer shall be sufficiently given if delivered personally (including delivery by private courier), dispatched by certified mail, postage prepaid and return receipt requested, or delivered by nationally recognized overnight courier service to the offices of City and Developer indicated below. Such written notices, demands, correspondence and communications may be sent in the same manner to such persons and addresses as either Party may from time-to-time designate in writing at least fifteen (15) days prior to the name and/or address change and as provided in this Section 9.3.
City: City of Union City
34009 Alvarado-Niles Road
Union City, CA 94587
Attn: City Manager
with copies to: City of Union City
34009 Alvarado-Niles Road
Union City, CA 94587
Attn: City Attorney
Developer: Windflower Properties, LLC
666 Post Street, Suite 1700
San Francisco, CA 94109
Attn: Vivian Fei Tsen
Notices personally delivered shall be deemed to have been received upon delivery.
Notices delivered by certified mail, as provided above, shall be deemed to have been given and received on the first to occur of (i) actual receipt by any of the addresses designated above as the Party to whom notices are to be sent, or (ii) within five (5) days after a certified letter containing such notice, properly addressed, with postage prepaid, is deposited in the United States mail.
Notices delivered by overnight courier service as provided above shall be deemed to have been received twenty-four (24) hours after the date of deposit. Notices delivered by electronic City Council/RSA Agenda 94 Tuesday, March 8, 2022
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facsimile transmission shall be deemed received upon receipt of sender of electronic confirmation of delivery, provided that a “hard” copy is delivered as provided above.
9.4. Project as a Private Undertaking; No Joint Venture or Partnership.
The Project constitutes private development, neither City nor Developer is acting as the agent of the other in any respect hereunder, and City and Developer are independent entities with respect to the terms and conditions of this Agreement. Nothing contained in this Development Agreement or in any document executed in connection with this Development Agreement shall be construed as making City and Developer joint venturers or partners.
9.5. Severability.
If any terms or provision(s) of this Development Agreement or the application of any term(s)or provision(s) of this Development Agreement to a particular situation, is (are) held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of this Development Agreement or the application of this Development Agreement to other situations, shall remain in full force and effect unless amended or modified by mutual consent of the Parties. Notwithstanding the foregoing, if any material provision of this Development Agreement, or the application of such provision to a particular situation, is held to be invalid, void or unenforceable, Developer (in its sole and absolute discretion) may terminate this Development Agreement by providing written notice of such termination to City.
9.6. Section Headings.
Article and Section headings in this Development Agreement are for convenience only and are not intended to be used in interpreting or construing the terms, covenants or conditions of this Development Agreement. Except as otherwise expressly stated herein, any reference to a particular section or Article of this Agreement shall mean a reference to all subsections of such section or Article.
9.7. Construction of Agreement.
Both the Developer and City had the opportunity to review with this Agreement with legal counsel, and this Development Agreement is the result of negotiations between the Parties, and no presumption or rule that ambiguities shall be construed against the drafting Party shall apply to the interpretation or enforcement of this Development Agreement.
9.8. Entire Agreement.
This Development Agreement, including the Recitals, and exhibits attached hereto and incorporated by reference herein, together with the DDA and the other Project Approvals, constitutes the entire understanding and agreement of the Parties and supersedes all negotiations or previous agreements between the Parties with respect to all or any part of the subject matter hereof. The exhibits and appendices are as follows:
Exhibit A Legal Description of the Property
City Council/RSA Agenda 95 Tuesday, March 8, 2022
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9.9. Estoppel Certificates.
Either Party may, at any time during the Term of this Development Agreement, and from time to time, deliver written notice to the other Party requesting such Party to certify in writing that, to the knowledge of the certifying Party, (i) this Development Agreement is in full force and effect and a binding obligation of the Parties, (ii) this Development Agreement has not been amended or modified either orally or in writing, or if amended; identifying the amendments, (iii) the requesting Party is not in default in the performance of its obligations under this Development Agreement, or if in default, to describe therein the nature and amount of any such defaults, and (iv) any other information reasonably requested. The Party receiving a request hereunder shall execute and return such certificate or give a written, detailed response explaining why it will not do so within twenty (20) days following the receipt thereof. The failure of either Party to provide the requested certificate within such twenty (20) day period shall constitute a confirmation that this Agreement is in full force and effect and no modification or default exists. Either the City Manager or her designee shall have the right to execute any certificate requested by Developer hereunder. City acknowledges that a certificate hereunder may be relied upon by transferees and Mortgagees.
9.10. Recordation.
Pursuant to California Government Code Section 65868.5, within ten (10) days after the later of the Parties’ execution of this Development Agreement or the Effective Date, the City Clerk shall record this Development Agreement with the Alameda County Recorder. Thereafter, if this Development Agreement is terminated, modified or amended, the City Clerk shall record notice of such action with the Alameda County Recorder.
9.11. No Waiver.
No delay or omission by either Party in exercising any right or power accruing upon noncompliance or failure to perform by the other Party under any of the provisions of this Development Agreement shall impair any such right or power or be construed to be a waiver thereof. A waiver by either Party of any of the covenants or conditions to be performed by the other Party shall be in writing and signed by a duly authorized representative of the Party against whom enforcement of a waiver is sought, and any such waiver shall not be construed as a waiver of any succeeding breach or non-performance of the same or other covenants and conditions hereof.
9.12. Time Is of the Essence.
Time is of the essence for each provision of this Development Agreement for which time is an element.
9.13. Applicable Law.
This Development Agreement shall be construed and enforced in accordance with the laws of the State of California.
9.14. Attorneys’ Fees.
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Should any legal action be brought by either Party because of a breach of this Development Agreement or to enforce any provision of this Development Agreement, the prevailing party shall be entitled to reasonable attorneys’ fees and such other costs as may be found by the court.
9.15. Third Party Beneficiaries.
Except as otherwise provided herein, City and Developer hereby renounce the existence of any third party beneficiary to this Development Agreement and agree that nothing contained herein shall be construed as giving any other person or entity third party beneficiary status.
9.16. Constructive Notice and Acceptance.
Every person who now or hereafter owns or acquires any right, title or interest in or to any portion of the Property is and shall be conclusively deemed to have consented and agreed to every provision contained herein, whether or not any reference to this Development Agreement is contained in the instrument by which such person acquired an interest in the Property.
9.17. Counterparts.
This Development Agreement may be executed in counterparts, all of which taken together shall constitute one single instrument.
9.18. Authority.
The persons signing below represent and warrant that they have the authority to bind their respective Party and that all necessary board of directors’, shareholders’, partners’, city councils’ or other approvals have been obtained.
IN WITNESS WHEREOF, City and Developer have executed this Development Agreement as of the date first set forth above.
SIGNATURES ON FOLLOWING PAGE
City Council/RSA Agenda 97 Tuesday, March 8, 2022
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DEVELOPER:
WINDFLOWER PROPERTIES, LLC
a California limited liability company
By: _______________________________
Vivian Fei Tsen
Its: Manager Member
CITY:
CITY OF UNION CITY
a municipal corporation
By: _______________________________
Joan Malloy, City Manager
ATTESTATION:
By: _______________________________
Anna Brown, City Clerk
APPROVED AS TO FORM:
By: _______________________________
Kristopher Kokotaylo, City Attorney
SIGNATURES MUST BE NOTARIZED
City Council/RSA Agenda 98 Tuesday, March 8, 2022
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A Notary Public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of California
County of __________________
On ___________________before me, _________________________________, a Notary Public, personally appeared ______________________________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument, and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signatures(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 of Notary
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5063626.1 33 Development Agreement
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A Notary Public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of California
County of __________________
On ___________________before me, _________________________________, a Notary Public, personally appeared ______________________________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument, and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signatures(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 of Notary
City Council/RSA Agenda 100 Tuesday, March 8, 2022
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EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
5063626.1
City Council/RSA Agenda 101 Tuesday, March 8, 2022
______________________________________________________________________ STAFF REPORT Windflower – Block 2 DA-22-001
34302 11th Street February 17, 2022
City Council/RSA Agenda 102 Tuesday, March 8, 2022
Agenda Item
DATE: FEBRUARY 17, 2022
TO: PLANNING COMMISSION
FROM: CARMELA CAMPBELL, ECONOMIC AND COMMUNITY
DEVELOPMENT DIRECTOR
SUBJECT: DEVELOPMENT AGREEMENT (DA-22-001)
APPLICANT: WINDFLOWER PROPERTIES, LLC
LEGAL OWNER: CITY OF UNION CITY
REQUEST: Recommendation to the City Council of approval of a Development Agreement (DA-22-001) for the Windflower – Block 2 project, for the purpose of extending project approvals that were previously approved by the City Council on November 14, 2017. The project includes the development of four hundred and forty-three (443) multi-family residential rental units.
LOCATION: 34302 11th Street between Galliano Way and Berger Way (APN:
087-340-002)
SIZE OF PARCEL: 3.5 acres
GENERAL PLAN
LAND USE: Station Mixed Use Commercial
ZONING: CSMU (Station Mixed Use Commercial)
SURROUNDING LAND USES:
LOCATION GENERAL PLAN
DESIGNATION ZONING DISTRICT LAND USE
North Station Mixed
Use Commercial
CSMU
Station Mixed Use
Commercia
Vacant land
South Station Mixed
Use Commercial
CSMU
Station Mixed Use
Commercia
Multifamily
residential/mixed use
East
Research and
Development
Campus
RDC
Research and
Development Campus
Southern Pacific
Railroad right-ofway, Vacant land
City Council/RSA Agenda 103 Tuesday, March 8, 2022
Planning Commission Staff Report, February 17, 2022
DA-22-001, 34302 11th Street, Page 2
West Station Mixed
Use Commercial
CSMU
Station Mixed Use
Commercia
East Plaza, parking
lot, BART station
ENVIRONMENTAL ASSESSMENT:
The project is within the scope of the Station District Mixed-Use Development Project EIR (certified in November 2010 by City Council Resolution No. 4072-10) and the 2040 Union City General Plan Update EIR (certified on December 10, 2019, by City Council Resolution No. 5548-19). No new information of substantial importance has been discovered requiring revisions to the impacts, mitigation measures or alternatives that were provided in either EIR. Additionally, there have not been any substantial changes with respect to City policies or requirements that would require additional environmental analysis, which determined that the project would not result in any significant environmental impacts with the incorporation of mitigation measures. All adopted mitigation measures continue to apply to the Project. Thus, pursuant to Sections 15162 and 15168 of the CEQA Guidelines, the City has determined that no further analysis is required.
LOCATION MAPS:
Figure 1 – Zoning Map of 34302 11th Street (APN: 087-340-002) Project Site
N
City Council/RSA Agenda 104 Tuesday, March 8, 2022
Planning Commission Staff Report, February 17, 2022
DA-22-001, 34302 11th Street, Page 3
I. BACKGROUND & PROPOSAL
The applicant, Windflower Properties, LLC has submitted a request to enter into a Development Agreement with the City to extend the project approvals for the Windflower 2 project to be coterminous with the deadline for commencement of construction provided in the Disposition and Development. The project consists of development on Block 2 of the Station District area for a high-density, multi-family development. Exhibit A to Attachment 1 includes the draft Development Agreement language.
The Windflower 2 project was approved by Planning Commission on October 19, 2017, and subsequently by City Council on November 14, 2017. The 3.5-acre project site referred to as “Block 2” is located along 11th Street. See Figure 2 for a map showing the project site. The City Council Resolution approving the project is attached (Attachment 2). See below for a detailed overview of the project approvals and Figure 3 for an overview of the approved site layout. The City previously approved disposition of Block 2 to the applicant pursuant to a Disposition and Development Agreement approved in 2017 (the “DDA”). In addition, the following were approved:
1. SD-14-003 (Site Development Review) to allow the development of 443 new, marketrate, multi-family dwelling units (studios, one bedroom and two bedrooms, including 11 residential lofts and 13 live/work units) within two buildings, a six-level parking structure with 460 parking spaces, 5,088 square feet of ground floor retail space, public and private courtyards, and related site improvements and amenities.
Figure 2 – Location Map of 34302 11th Street (APN: 087-340-002)
N
Project Site
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Planning Commission Staff Report, February 17, 2022
DA-22-001, 34302 11th Street, Page 4
2. UP-14-006 (Conditional Use Permit) to allow: (a) a mixed-use development within the CSMU zoning district; (b) building height greater than 65 feet; (c) high-density residential uses and live/work units within the CSMU zoning district; and(d) reduction to storage requirements.
The original projects approvals were granted for one-year and were set to expire on November 14, 2018. The applicant obtained two, one-year extension extending the approvals to November 14, 2020. Per AB1561, which extended the life of housing entitlements in effect before March 4, 2020, the project approvals were extended an additional 18 months and are now set to expire on May 14, 2022 unless building permits have been issued, all fees paid, and construction commences.
Since the approvals were granted, the applicant has been diligently working on moving the project forward onto the construction phase. The applicant has provided feedback that due to decreasing rents and rising construction and labor costs, attributed in part, to the COVID pandemic, there have been challenges securing financing.
Development Agreements
Development Agreements (DA) are voluntary agreements commonly used for major projects that will be phased over multiple years to provide some degree of certainty to the applicant regarding the policies, regulations, and fees that will be applied to the project in return for the provision of public benefits to the City. Most significantly, a DA vests land use approval for a specific period. Per Union City Municipal Code (UCMC) Chapter 18.104, the DA is subject to review and recommendation by the Planning Commission and a final decision by the City Council. DAs are adopted by ordinance and require a second reading.
The complexity, size and long-range nature of the project would be difficult for the developer to undertake if City had not determined, through this DA, to insert a sufficient degree of certainty in the land use regulatory process to justify the substantial financial investment associated with development of the project. As a result of the execution of this DA, both parties can be certain that the project can proceed without disruption caused by a change in planning and development policies and requirements, and such assurance will reduce the actual or perceived risk of planning, financing and proceeding with construction of the project.
II. PROJECT ANALYSIS
A. Development Agreement Contents
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DA-22-001, 34302 11th Street, Page 5
Extension of Approvals
The City and project developer previously entered into a Disposition and Development Agreement (DDA) dated, June 13, 2017, that provides for disposition of the Block 2 property to the applicant for the development of the project, subject to the terms and conditions contained in the DDA. The City and developer desire to ensure that the project approvals do not expire before the December 31, 2024 deadline for the commencement of construction included in the DDA to ensure that the Project can proceed as approved by the City Council.
DA term
The term of the DA is five years. This is separate from the date of December 31, 2024 which is when construction must commence. The reason for this is that there are certain provisions of the DA, such as those related to the Community Art Space, which could extend beyond the commencement of construction. This language is not meant to extend the project approvals beyond that of the DDA.
Public Art
This project is required to comply with the Art in Public Places Program (UCMC Chapter
12.40), which requires a contribution of one percent of the project cost toward public art, with one-third of the one percent required as a contribution to the Union City Public Art Fund. The current approvals from 2017 reference the applicant providing an art installation that would also serve as screening for the Cheeves Way garage.
The DA includes wording that allows the City and the developer to approve an arrangement similar to the City’s use of Studio 11 located in Union Flats, which is an apartment building located adjacent to the project site constructed by the applicant. The arrangement allows for the applicant to satisfy the project’s public art requirements by providing the City with the right to use an approximate 2,000 sq. ft. portion of the building’s ground floor space located on 11th Street as a Community Art Space for display of artworks, classes and workshops, and public events. If this alternative is agreed upon by the City and the Developer, the DA requires the City and applicant to enter into a Community Art Agreement to address the obligations of each party with respect to the installation of interior improvements, utility charges, maintenance, repairs, and other expenses relating to the space. The value of any below-market rate rent for the Community Art Space, as mutually agreed, and the cost of any Developer obligations regarding installation of improvements, maintenance, utilities, and other expenses for the space shall be equivalent in value to the Art Fee that Developer would otherwise be obligated to pay pursuant to Union City Municipal Code Chapter 12.40. Prior to issuance City Council/RSA Agenda 107 Tuesday, March 8, 2022
Planning Commission Staff Report, February 17, 2022
DA-22-001, 34302 11th Street, Page 6
of the first building permit for the project, if the City and Developer are unable to mutually agree upon the terms of the Community Art Agreement, consistent with the provisions listed in Chapter 12.40 of the Union City Municipal Code, Developer will be required to either (i) pay the applicable Art Fee to City, or (ii) submit a proposal for public art to the City, receive approval by the City’s Art and Culture Commission. If the City and Developer are unable to mutually agree upon the terms of the Community Art Agreement, the building area that was to be used as Community Art Space shall revert to use identified in the project approvals.
Project Amendments /Subsequent Approvals.
Section 1.5.4 of the DA clarifies that the DA provisions would extend to any subsequent project approvals, which is typical language. Section 1.5.5 was added at the request of the applicant and provides some background on a future request for modifications to the project that the applicant is currently exploring.
The applicant has indicated that she intends to apply for modifications to the existing Site Development Review and the existing Use Permit approvals to ensure project feasibility.
These include the relocation of certain amenities within the site, the reconfiguration of parking facilities, a reduction in height of certain buildings, a modification to the scope Figure 3 – Aerial View of Site Layout
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of on-site parking and storage, and changes to unit types and the total number of residential units, provided that the total number of residential units will not exceed 504 units (which is the maximum unit count allowed by the DDA). The applicant has presented staff with some concept drawings but, has not yet submitted a project application. Please note that the future project amendments are not the focus of the current agenda item to consider adoption of the DA. When the applicant is ready to move forward on the proposed amendments, the proposed modification to the existing approvals will be brought back to the Planning Commission and City Council for consideration. The DA is being presented for approval prior to presentation of a request for consideration of project approval modifications so that the existing approvals will not expire in advance of such modification request.
The applicant requested information regarding anticipated requests for modifications to be included in the DA in order to alert the Planning Commission and City Council of the applicant’s intent to apply for modifications to the existing approvals as they will be the decision makers reviewing the modifications. The DA wording clarifies that nothing in the document is interpreted as a promise or representation regarding the City’s review of the anticipated modifications or as otherwise limiting the City’s discretion to approve, deny, or modify an application to modify the existing Site Development Review and the existing Use Permit for the Project.
Section 4.4 also addresses future amendments to project approvals and outlines the process. The DA categorizes future amendments as “major” (i.e., requires review by the City Council and Planning Commission), and “minor (i.e., can be approved by Economic and Community Development Director). This is also typical language but the specifics of what constitutes a major versus a minor amendment was informed by applicable Zoning Ordinance provisions as well as discussions between staff and the applicant.
Major amendments are defined as modifications that affects (a) the Term of the DA, (b) permitted uses of the property, (c) provisions for reservation or dedication of land, (d) the density or intensity of use of the property, (e) the maximum height or size of proposed buildings, (f) the location and maintenance of on-site or off-site public improvements, (g) any exceptions to applicable development standards as allowed by Section 18.38.250 of the Union City Municipal Code, or (h) such other modification Economic & Community Development Director reasonably determines to constitute a significant change in the Project. Minor amendments address a variety of items including minor alterations in vehicle circulation patterns or vehicle access points, variations in the location of structures that do not substantially alter the design concepts of the project approvals, minor changes to architectural features required to comply with applicable Building Code provisions or to address supply issues, substitution of comparable landscaping for City Council/RSA Agenda 109 Tuesday, March 8, 2022
Planning Commission Staff Report, February 17, 2022
DA-22-001, 34302 11th Street, Page 8
any landscaping shown on any development plan or landscape plan, variations in the location or installation of utilities and other infrastructure connections and facilities that do not substantially alter design concepts of the project approvals, and minor adjustments to approved building façade colors and/or exterior materials, courtyard dimensions, and location and square footage of common area.
C. Noticing & Communication
As required by state law, public notices for the February 17, 2022, Planning Commission hearing were published in the Tri City Voice on February 1. No correspondence from the public has been received by staff.
D. Conclusion
Staff recommends that the Planning Commission recommend that the City Council introduce an Ordinance adopting the Development Agreement (DDA-22-001) and making the following specific findings in support of this recommendation.
III. REQUIRED FINDINGS
Development Agreement
Section 18.104.050 of the Zoning Ordinance requires that the following findings be made related to approval of a Development Agreement. Below each finding is a discussion of how the project meets the required finding.
1. That the proposed Development Agreement is consistent with the objectives, policies, general land uses, and programs specified in the City’s General Plan, the CSMU (Station Mixed Use Commercial) Zoning District, and the DIPSA Specific Plan in which the development project is located.
The proposed Development Agreement is consistent with the CSMU (Station Mixed Use Commercial) General Plan land use designation and related policies that apply to development in the Station District. The Development Agreement would foster a highdensity, mixed use residential development, which helps support transit ridership.
Additionally, the uses and design of the project encourage transit use and minimize automobile dependence; the project helps create a vibrant, transit-oriented mixed-use area, and is pedestrian-friendly and minimizes parking impacts on the streetscape and the neighborhood; and the project will be harmonious with existing and potential uses within the Station District and surrounding areas. The project is also consistent with the DIPSA Specific Plan, which identified high-density residential and commercial development for the Station District area.
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2. Will not be detrimental to the health, safety and general welfare of persons residing in the immediate area, not be detrimental or injurious to property or persons in the general neighborhood or to the general welfare of the residents of the City as a whole.
The proposed Development Agreement will not be detrimental to the health, safety and general welfare of persons residing in the immediate area, general neighborhood, or of the City as a whole because, as documented in the previously certified EIR for the project, mitigation measures have been included to mitigate all potential significant environmental impacts to less than significant levels. In addition, the project has been designed and conditioned consistent with applicable requirements to protect health and safety including the provision of adequate water supply including water used for fire suppression systems, and adequate access for emergency vehicles. The project will also be constructed consistent with current Building Code requirements.
3. Will not adversely affect the orderly development of property or the preservation of property values.
The proposed Development Agreement includes provisions to facilitate the orderly development of the project. The complexity, enormity and long-range nature of the project would be difficult for the developer to undertake if City had not determined, through this Development Agreement, to insert a sufficient degree of certainty in the land use regulatory process to justify the substantial financial investment associated with development of the project. As a result of the execution of this Development Agreement, both parties can be certain that the project can proceed without disruption caused by a change in planning and development policies and requirements, and such assurance will reduce the actual or perceived risk of planning, financing and proceeding with construction of the project.
4. Is consistent with the provisions of Government Code Section 65864 through 65869.5.
The proposed Development Agreement is consistent with the provisions of Government Code Sections 65864 through 65869.5 because it provides some assurances to the applicant to proceed with the multi-year project in accordance with existing policies, rules and regulations in return for the provision of public benefits. A noticed public hearing on the Development Agreement was held by the Planning Commission.
IV. ALTERNATIVES
1. Recommend approval of the Development Agreement as proposed;
2. Recommend approval of the Development Agreement with modifications; City Council/RSA Agenda 111 Tuesday, March 8, 2022
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DA-22-001, 34302 11th Street, Page 10
3. Recommend denial of the Development Agreement with stated findings; or
4. Continue the matter for further consideration
V. RECOMMENDATION
Staff recommends that the Planning Commission recommend that the City Council introduce an Ordinance adopting the Development Agreement (DDA-22-001) and making the following specific findings in support of this recommendation:
1. That the project is within the scope of the Station District Mixed-Use Development Project EIR (certified in November 2010 by City Council Resolution No. 4072-10) and the 2040 Union City General Plan Update EIR (certified on December 10, 2019 by City Council Resolution No. 5548-19). No new information of substantial importance has been discovered requiring revisions to the impacts, mitigation measures or alternatives that were provided in either EIR. Additionally, there have not been any substantial changes with respect to City policies or requirements that would require additional environmental analysis, which determined that the project would not result in any significant environmental impacts with the incorporation of mitigation measures. All adopted mitigation measures continue to apply to the project. Thus, pursuant to Sections 15162 and 15168 of the CEQA Guidelines, the City has determined that no further analysis is required; and
2. That the proposed Development Agreement is consistent with the CSMU (Station Mixed Use Commercial) General Plan land use designation and related policies that apply to development in the Station District. The Development Agreement would foster a high-density, mixed use residential development with ground floor retail space, which helps support transit ridership. Additionally, the uses and design of the project encourage transit use and minimize automobile dependence; the project helps create a vibrant, transit-oriented mixed-use area, and is pedestrian-friendly and minimizes parking impacts on the streetscape and the neighborhood; and the project will be harmonious with existing and potential uses within the Station District and surrounding areas. The project is also consistent with the DIPSA Specific Plan, which identified high-density residential and commercial development for the Station District area; and
3. That the proposed Development Agreement will not be detrimental to the health, safety and general welfare of persons residing in the immediate area, not be detrimental or injurious to property or persons in the general neighborhood or to the general welfare of the residents of the City as a whole because mitigation measures have been included to mitigate all potential significant environmental City Council/RSA Agenda 112 Tuesday, March 8, 2022
Planning Commission Staff Report, February 17, 2022
DA-22-001, 34302 11th Street, Page 11
impacts to less than significant levels, and in addition, the project has been designed and conditioned consistent with applicable requirements to protect health and safety including the provision of adequate water supply including water used for fire suppression systems, adequate access for emergency vehicles, and that the project will also be constructed consistent with current Building Code requirements; and
4. That the proposed Development Agreement will not adversely affect the orderly development of property or the preservation of property values because it includes provisions to facilitate the orderly development of the project. The complexity, enormity and long-range nature of the project would be difficult for the developer to undertake if City had not determined, through this Development Agreement, to insert a sufficient degree of certainty in the land use regulatory process to justify the substantial financial investment associated with development of the project. As a result of the execution of this Development Agreement, both parties can be certain that the project can proceed without disruption caused by a change in planning and development policies and requirements, and such assurance will reduce the actual or perceived risk of planning, financing and proceeding with construction of the project; and
5. That the proposed Development Agreement is consistent with the provisions of Government Code Sections 65864 through 65869.5 because it provides some assurances to the applicant to proceed with the multi-year project in accordance with existing policies, rules and regulations in return for the provision of public benefits. A noticed public hearing on the Development Agreement was held by the Planning Commission.
Prepared by
Farhad Mortazavi, Contract Planner
Submitted by
Derek Farmer, Planning Manager
Attachments
Exhibit A: Draft Development Agreement
Attachment 1: Draft Resolution
Attachment 2: Approved City Council Resolution #5143-17 City Council/RSA Agenda 113 Tuesday, March 8, 2022
PLANNING COMMISSION MINUTES 1 February 17, 2022
CITY OF UNION CITY
DRAFT MINUTES FOR THE REGULAR PLANNING COMMISSION MEETING ON THURSDAY, FEBRUARY 17, 2022, 7:00 P.M.
HELD VIA TELECONFERENCE
1. ROLL CALL: Chairperson (Vacant); Vice Chair Harpal Mann; Commissioner Lee Guio; Commissioner Jo Ann Lew;
Commissioner Scott Sakakihara
Commissioner Kevin Finnerty
STAFF: Carmela Campbell (Economic & Community Development Director); Alex Mog (Attorney); Derek Farmer (Planning Manager); Denisse Anzoategui (Moderator); Brandon DeLucas (Planner); Tommy Cho (Principal Civil Engineer)
2. ELECTION OF OFFICERS:
The Commission elected Harpal Mann to serve as Chairperson and Lee Guio as Vice Chair to the Planning Commission.
3. APPROVAL OF MINUTES:
The regular Planning Commission Meeting minutes of February 17, 2022 were approved as submitted.
4. ORAL COMMUNICATIONS: None.
5. WRITTEN COMMUNICATIONS: None.
6. PUBLIC HEARINGS:
A. CONTINUED HEARINGS: None.
B. NEW HEARINGS:
1. VETERINARY MEDICAL CENTER, 33663 MISSION BOULEVARD (APN:
486-6-33), SITE DEVELOPMENT REVIEW (SD-21-003), USE PERMIT (UP21-005) AND VARIANCE (V-21-002) The applicant, Dr. Surat Gil is seeking approvals for 1) Use Permit (UP-21-005) to modify UP-95-1 allowing a veterinary clinic, 2) Site Development Review (SD-21-003), for the construction of a proposed 946 square foot addition to the existing veterinary clinic; and 3) Variance request (V-21-002) to reduce the street side setback requirement for the addition from approximately ten (10) feet to two (2) feet.
The proposed addition would result in a total building size of approximately 2,472 square feet. The project is located at 33663 Mission Boulevard (APN 486-6-33), within the CC (Community Commercial) Zoning District. CEQA Determination: Staff is recommending that this project be considered categorically exempt per Section 15301, Existing Facilities, of the California Environmental Quality Act (CEQA).
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2. WINDFLOWER PROPERTIES, 11TH STREET (APN: 087-340-002), DEVELOPMENT AGREEMENT (DA-22-001) The applicant, Windflower Properties, LLC, is seeking approval of a Development Agreement for the Windflower – Block 2 project, for the purpose of extending project approvals that were approved by the City Council on November 14, 2017. The project includes the development of four hundred and forty-three (443) units located on 11th Street (APN: 087-340-002) in the CSMU (Station Mixed-Use Commercial) Zoning District. CEQA Determination: The project is within the scope of the Station District Mixed-Use Development Project EIR (certified in November 2010 by City Council Resolution No. 4072-10) and the 2040 Union City General Plan Update EIR (certified on December 10, 2019, by City Council Resolution No. 5548-19). Approval of the Development Agreement is within the scope of the previously certified CEQA documents.
Alex Mog, Deputy City Attorney and Carmela Campbell, Economic & Community Development Director presented the staff report.
Commissioner Lew asked if other options besides extending the Development Agreement had been considered.
Mr. Mog replied that they would no longer have the option to extend the permits any further as it is not in the code. Mr. Mog noted that another option was to amend the existing permits which by doing so would extend the entitlements of the Use Permit and the Site Development Review, but the project applicant did not have those plans finalized yet. Mr. Mog added that another option would be to let the permits expire and obtain new permits but that is a big expense and time consuming to go back through the whole process. Mr. Mog explained that the project is going to stay very similar.
Commissioner Lew stated that it sounds like the City is not looking at other developers to develop the site.
Mr. Mog replied no, and that under the DDA, the developer has the right to the property until December 31, 2024. Mr. Mog added that the City could not look for other developers or anything like that until that the agreement has expired.
Commissioner Lew asked what the likelihood would be that they break ground before December 31, 2024.
Mr. Mog referred the question to the applicant.
Commissioner Lew stated that it was only two or two and three-quarters years away.
Commissioner Lew stated she was concerned as it was not a lot of time and considering the conditions of the construction industry, lack of labor, cost of materials, and having the Development Agreement, it sounds like costs are an obstacle to breaking ground.
Mr. Mog replied that they have faced difficulties and the applicant would be better suited to discuss some of the obstacles. Mr. Mog added that COVID certainly played a part.
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Commissioner Lew stated that she thought the Development Agreement was excellent and some of the best reading she’s had in a long time since before the pandemic.
Commissioner Finnerty stated that he had no questions and thought it was a well-prepared document and added that the request was clear.
Commissioner Sakakihara stated that he did not have any questions.
Commissioner Guio asked if there was any financial involvement including the cost of construction that was the cause of extending the development agreement.
Mr. Mog replied that the City is not a partner in the construction of the project and has no obligations. Mr. Mog stated that all the agreement does is extend their existing approvals. Mr.
Mog added that if the Commission decided not to act and the approvals expired then the developer would still have the right until 2024 to the property and could submit a brand-new application. Mr. Mog also added that if they were to start construction on a brand-new application, they would be able to purchase the property. Mr. Mog stated that there are no new obligations, or any financial terms included in the Development Agreement other than the standard language of the fees they will pay when pulling their building permits.
Commissioner Guio thanked Mr. Mog and noted that the applicant wants to proceed but there are changes in construction costs and could indicate to him that there could be potential changes to the design.
Chairperson Mann asked if the update would extend the permits until 2024.
Mr. Mog replied yes.
Chairperson Mann noted that the project was approved in 2017. Chairperson Mann also noted that the City has a housing shortage and there is no land available today for anyone to build, and that it is prime land in the middle of the City that someone else in that time could have constructed something. Chairperson Mann asked if there is good faith from the applicant that they are going to do it in the next two years even after they showed no updates during the past five.
Mr. Mog replied that the applicant could speak to the challenges they faced in the last few years but recalled delays due to COVID that caused a shutdown for a period of time and the high costs of construction. Mr. Mog recalled MidPen’s affordable housing project which had design changes that were necessary for that project due to the substantial increase in costs that had to be considered by the City.
Chairperson Mann replied that he understands that the City has no recourse until 2024 but repeated that Union City does not have the land and taxpayers need housing today.
Chairperson Mann stated that it seemed like a bad deal. Chairperson Mann added that he was not against extending the approval but recommended there be some milestones and there must be a plan. Chairperson Mann stated that construction costs would continue to go up.
Chairperson Mann noted that the applicant already has a block in the Station District and asked if they were trying to recover their costs from that project and whether they had the funding to City Council/RSA Agenda 116 Tuesday, March 8, 2022
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start the next project. Chairperson Mann asked if they had funding in the plan and if the City had done any due diligence.
Mr. Mog replied that this agreement is separate from the agreement as to the selling of the property. Mr. Mog added that those are issues that the City might consider when selling the property and was a decision that was made by the City Council previously and locked in until 2024. Mr. Mog added that the City was very firm in negotiating that the Development Agreement would not extend past the 2024 date. Mr. Mog asked Ms. Campbell if she wanted to add anything.
Ms. Campbell stated that Mr. Mog had summarized it well and repeated that the DDA did not contain language regarding an extension.
Mr. Mog added that if the permits are not extended it would still leave the property locked until 2024. Mr. Mog asked that if the project would become more or less likely if they had to start with the proposals and the permitting all over again.
Chairperson Mann noted that the Planning Commission is bound by the other agreement.
Chairperson Mann stated that there are a lot of developers out there interested in this site but would not comment further on that. Chairperson Mann applauded Mr. Mog’s drafting of the extension and stated that he had no further questions.
Commissioner Finnerty asked what date the extended Development Agreement would be extended to and asked if that meant five years from the date of the approval.
Mr. Mog replied that it is a great question and that the Development Agreement has a term of five years total, but the Development Agreement requires a building permit for the project and construction to begin by December 31, 2024. Mr. Mog added that some items like public art may not be finalized but the term extends a little after to allow those issues to be resolved and to make sure that all parties are bound by the agreement.
Commissioner Finnerty asked if it was decided to move forward with the recommendation and nothing is done by December 31, 2024, would the disposition of the property return to the City.
Mr. Mog replied that if the permits expired and if nothing happens by land then the City could terminate the DDA agreement that gives them the right to purchase the property. Mr. Mog added that the City would have to decide how to move forward with that property and follow laws for disposing of the property.
Commissioner Finnerty asked that if the DDA is then terminated December 31, 2024, it would seem reasonable that the recommendation would also terminate at that time.
Mr. Mog clarified that the agreement would be signed by the City Council and should not be considered a recommendation. Mr. Mog added that if the permits are not executed by January 1, 2025, then the Development Agreement will expire.
Commissioner Finnerty asked if the Development Agreement was in place for five years, and the disposition doesn’t occur at that time then they may have the design in place to build but nothing to build on.
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Mr. Mog replied yes.
Commissioner Finnerty asked if there would be any obligation for the City to renegotiate with them for a new agreement if it expired.
Mr. Mog replied no, there wouldn’t be. Mr. Mog added that there is explicit language in the DA that is being considered that evening that does not create any obligation for the City to renegotiate or change any deadlines in the DDA.
Commissioner Finnerty reaffirmed that they will have the right to build upon that property until December 31, 2024, but that there are conditions they have to meet. Commissioner Finnerty added that they choose not to extend the Development Agreement, it will not change their ability to build it all, it would only require them to do is go back and reapply.
Mr. Mog replied yes.
Commissioner Finnerty asked if it would just delay them to coming into the property to start development along with other external conditions.
Mr. Mog replied that having to reapply for permits would cause delay for them and for staff to have to review the proposed modifications. Ms. Campbell followed up on feedback provided by Mr. Mog and added that the City sees the Development Agreement as an opportunity for the applicant to be able to pull the permits. Ms. Campbell added that there’s been a lot of work done on both sides to get to this point and staff is hopeful that the project will be constructed as there is a need for the units at the Station District area.
Chairperson Mann replied that he believes that the City is doing everything possible and bending backwards. Chairperson Mann asked if they could have the DA also expire on the same date. Chairperson Mann asked if there is any liability to the City in which the applicant could block the City from selling the property to any other interested parties.
Mr. Mog replied that the agreement is clear and there is no expectation that the DDA will be extended and that the parties acknowledge that date and that this isn’t intended that the Development Agreement is not intended to change that deadline for the disposition of the property.
Chairperson Mann opened the public comment.
Fei Tsen, Windflower Properties, 666 Post Street, San Francisco, CA 94109, introduced herself to the Commission and stated that she looked forward to the time when we can meet in person with the Commissioners that she has not met yet. Ms. Tsen stated that she has worked with Union City and staff for almost a decade now through many ups and downs, overcoming difficulties including the aftermath of the financial crisis in 2008, the abolition of the Redevelopment Agency, and now the pandemic and through it all, they have persevered. Ms.
Tsen stated that Union Flats has been a great success and during the pandemic even though the rents dropped, they were able to keep a remarkable 95% occupancy in that development showing how desirable it is. Ms. Tsen stated that it is a project that they are extremely proud of, and it has won awards and has received recognition for its density next to transit, specifically for City Council/RSA Agenda 118 Tuesday, March 8, 2022
PLANNING COMMISSION MINUTES 6 February 17, 2022
its sustainability. Ms. Tsen added that Windflower went beyond the call of doing the gold project, which the City wanted, and we received the platinum recognition and did it with innovative technology. Ms. Tsen stated that they were the largest modular builder and Windflower 1 was the largest modular project in the Bay Area. Ms. Tsen added that they have certainly proved that they can build a project and have raised the standard of design for the Station District. Ms. Tsen reminded the Commissioner that during the first project they experienced a time of high economic crisis and there were no developers when the City made a call for developers. Ms.
Tsen noted that they were the only ones who were brave enough to come in and invest in that project and invest in the Station District. Ms. Tsen added that they helped the City obtain the State funding that was necessary to assist building the parking garage. Ms. Tsen also added that they assisted the City in securing funds for the pedestrian crossing and the BART improvements which will link the Station District to the Bart station. Ms. Tsen stated that this has been an unprecedented time, and it is an extraordinarily difficult time to build multifamily rental housing. Ms. Tsen noted that the San Francisco Bay Area had the highest construction cost and when the pandemic hit, they hoped that there would be a drop in Bay Area construction costs.
Ms. Tsen noted that what stopped during the pandemic was debt financing and equity investment for multifamily housing. Ms. Tsen noted that while there still a material supply disruption and lack of skilled labor and no fall in the prices. Ms. Tsen stated that they believe and are optimistic that they can make the project work. Ms. Tsen stated that they have already invested a tremendous amount of capital and time in architects, engineering, design studies soil studies, all that is necessarily done during the predevelopment phase of a project. Ms. Tsen added that what they’re doing now is looking for ways in which they can make their design more efficient. Ms. Tsen added that they would be returning to the Planning Commission and the City Council when they are ready with the design changes. Ms. Tsen added that during the first project in Union City on Block 3 they had the benefit of almost 20 million in State grants, which helped secure the funding for the garage and the pedestrian crossing, but Block 2 had no public subsidies and no financial assistance. Ms. Tsen stated that there are no programs that can help with the project income with no subsidy as opposed to low income, which can get a subsidy. Ms.
Tsen added that it is not luxury income at the very top of the market which you can get in places like San Francisco but building middle-income housing that is for the workforce and it is attractive, dense housing as it should be next to the next to the Bart station. Ms. s. Tse stated that the Development Agreement would help them continue to work in designing and financing the project as it is a very complex project that has required tremendous investment of capital and time to carry the project during the pre-development phase. Ms. Tsen stated that she believed this will be the largest single development in Union City, if not in the East Bay and they are committed to finishing what they have started in the Station District. Ms. Tsen agreed with Chairperson Mann that the Bay Area has a housing shortage. Ms. Tsen explained the reason for the housing shortage even though there may be land available are the difficulties of high construction costs and putting together the financing for these types of projects makes it very difficult without some assistance. Ms. sen stated that she enjoyed working with the City and City staff and believe in the same value by hoping to create a community, which is pedestrianoriented, vibrant along the street, which has great amenities, and great housing units. Ms. Tsen added they think that they have demonstrated with their first project that they can do it in a way that meets the City's expectations and standards. Ms. Tsen stated that she could answer any questions the Commission may have.
Commissioner Guio stated that his concern really boiled down to what he read in the newspaper that property values are going to go up another 20% this year along with the costs of everything City Council/RSA Agenda 119 Tuesday, March 8, 2022
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in general going up. Commissioner Guio asked how could they meet the end goal and have it developed in the time allotted.
Ms. Tsen replied that she would prefer more time but was willing to live within the constraints of the DDA and the Development Agreement. Ms. Tsen added that they have already invested millions in the design and engineering and studies of doing the pre-development phase and are currently looking for financing as the pandemic made it impossible to get debt or equity financing. Ms. Tsen added that they hope now that it is over that there is an opening in the investment community for similar projects. Ms. Tsen stated that she was optimistic because she is a public developer but doesn’t know if they’ll be able to get the pricing for the project into a range that’s feasible. Ms. Tsen added that the projects are expensive to build but that rents have not necessarily increased in a way which can amortize those costs and they must make a balance. Ms. Tsen added that she was interested in making the units as affordable as they could and because they are not subsidized then they could not be very low. Ms. Tsen added that they have not asked the City for any subsidies and noted that there isn’t any multifamily rental housing that falls in the category being constructed currently, all the housing being built is affordable housing or luxury and they received their contracts pre-pandemic.
Commissioner Lew stated that she liked Ms. Tsen’s determination but was not confident that they will be breaking ground by December 31, 2024, due to the proposed changes and because of the lack of funding. Commissioner Lew asked where they go to get funding, and if there are known sources they usually go to that they can count on.
Ms. Tsen replied that they must go to a construction lender to get the financing and have various construction vendors that have worked with them before. Ms. Tsen added that the financing that they got for the first project was from Bank of America but also have to get equity investors into the project and that has been the difficult during the pandemic as they saw decreases in rents and there was a lot of uncertainty as to what would actually happen. Ms.
Tsen added that only this year, they started to see some interest by equity investors in multifamily housing projects. Ms. Tsen added that this project would cost about 200 million dollars for the construction of 443 units. Ms. Tsen stated that the way they finance projects is very complicated, the construction loan and debt financing is never the problem but the equity financing is. Ms.Tsen stated that they are hoping to interest someone in Union City especially because of their track record.
Commissioner Lew asked if they were looking at a whole city block and if they would phase the project and have people move in when they finished the first portion.
Ms. Tsen replied no and that they will build all at once. Ms. Tsen stated that the plan is to have them built modularly like the last project. Ms. Tsen stated that it reduced some of the labor costs because it was produced in the factory and could be produced in the factory during times when it was wet or couldn't be on the site. Ms. Tsen also mentioned that they would still look at the pricing to build it traditionally. Ms. Tsen noted the spike in lumber prices last year where the prices went up to almost 1,600 per square foot, and they have since dropped, while not back to where it was pre COVID but certainly less than what it was a year ago. Ms. Tsen stated that they we're hoping that some of the supply markets will stabilize and together with some of the design changes will be able to make the project more feasible.
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Commissioner Lew stated that she was glad Ms. Tsen mentioned modular building because she did not recall that they were going to use modular building for Windflower 2.
Ms. Tsen replied that they are designing it to be built modularly but did not have to be done that way. Ms. Tsen added that it will be determined by the costs that they get from the contractors and subcontractors. Ms. Tsen added that the modular system has provided them with some savings both in time and cost but was unsure of the costs in today’s market.
Commissioner Lew thanked Ms. Tsen for answering her questions and wished her much luck in the future. Commissioner Lew noted that it would be really tough and while they would most likely recommend approval to the City Council they know they could potentially not even break ground. Commissioner Lew asked Ms. Tsen what the chances were that they would break ground before December 31, 2024.
Ms. Tsen replied that they are working as intensely as they can and have already invested quite a bit of capital into the project to get to this stage. Ms. Tsen added that if they are not successful and they lose their investment, and it would mean a lot of money and time and they would not like to do that. Ms. Tsen emphasized that this is a partnership with Union City and they have not asked for any subsidies from the City and were actually looking at the possibilities at the State level and working with the Governor’s office right now on policies that could help. Ms. Tsen added that there are a lot of cities in the whole Bay Area that cannot go forward and are middle income and that is why there is a shortage of housing the Bay Area. Ms. Tsen stated that the pandemic has been an unprecedented time and they basically lost two years, but they are getting started again and are working with investors again on due diligence and facing the new cost estimates from the contractors.
Commissioner Lew thanked Ms. Tsen for filling the Commission in with all that information as it helped to better understand the situation.
Chairperson Mann thanked Ms. Tsen for Windflower 1 and her commitment to Union City.
Chairperson Mann stated that it was an excellent project and hoped that they were able to recover their ROI on that project. Chairperson Mann noted COVID setbacks, lack of grants from the City, a difficult investment environment, and the decision to either go modular or traditional and asked what her confidence level was that they would start construction before December 2024.
Ms. Tsen replied that they are working very diligently towards that goal and that she would be one to suffer the most if they were unable to do it. Ms. Tsen stated that a lot of obtaining that goal will depend on economic conditions and whether investors feel enough confidence in the future and will depend on if rents rise enough. Ms. Tsen further explained that they had almost 15% of rents drop in Union City that was better than many in San Francisco and Oakland that even saw 40% at one point. Ms. Tsen added that once is approaches pre-COVID levels we’re going be able to make more financial sense of the project as a whole. Ms. Tsen added that they will continue to work diligently to get cost estimates and potential investors who may be interested in the project that will need to do their due diligence. Ms. Tsen stated that all developers in the Bay Area are in a similar situation.
Chairperson Mann stated that the Planning Commission is here to work with Ms. Tsen to get the project started and is cognizant of the fact that it is a difficult investment period, and the costs City Council/RSA Agenda 121 Tuesday, March 8, 2022
PLANNING COMMISSION MINUTES 9 February 17, 2022
have gone up and will continue to go up. Chairperson Mann stated that he was supportive of extending the DA but is bound and reminded by the population of what is going on in the Bay Area as far as affordable housing. Chairperson Mann added that any project that come in there is always the discussion of whether Union City can meet its quota for affordable units and this is not just to put this on yourself it’s a practicality here in the Bay Area and the Planning Commission is at the forefront of that discussion debate.
Ms. Tsen replied that it is very hard to build housing in the Bay Area and it is why they have such a lack of housing and lack of affordable housing but has been a proponent of ways to build housing. Ms. Tsen added that she is interested in these housing developments also for the policies that can be made as models for other cities and developers and that’s why they strive to build affordable, sustainable, and densely populated housing next to transit.
Chairperson Mann thanked Ms. Tsen for being there and answering the Commission’s questions.
Ms. Tsen thanked Chairperson Mann for his support and City staff as they have always been very professional in the way that they have worked with them. Ms. Tsen stated that they have a real commitment to Union City and are already proud of the work they have done and the impact they have had on the Station District. Ms. Tsen stated that they hope to finish the next project as it will be their legacy and want to work with the Planning Commission and the City Council to make this feasible and to make it work.
Chairperson Mann closed the Public Hearing.
Commissioner Lew stated that she felt reluctant to make a recommendation but didn’t believe they have a choice. Commissioner Lew stated that she believes the applicant will try her best to get the project moving along and she would wait for the groundbreaking.
Commissioner Lew moved that the Planning Commission recommend to the City Council adoption of an ordinance approving Development Agreement (DA-22-001) making the required findings in the staff report and adopting a resolution confirming this action.
Commissioner Guio seconded.
The motion was carried by the following roll call vote:
AYES: (MANN, GUIO, LEW, SAKAKIHARA, FINNERTY)
NOES: NONE
ABSTAIN: NONE
ABSENT:
The motion passes 5-0.
7. SUPPLEMENTAL STAFF REPORTS:
City Council/RSA Agenda 122 Tuesday, March 8, 2022
PLANNING COMMISSION MINUTES 10 February 17, 2022
A. CONTINUED REPORTS: None.
B. NEW REPORTS: None.
8. ECONOMIC DEVELOPMENT REPORTS: None.
9. COMMISSION MATTERS:
A. Follow-up on Planning Commission referrals to the City Council:
B. Upcoming applications for the Regular Planning Commission meeting for March 3, 2022.
10. GOOD OF THE ORDER:
11. ADJOURNMENT: 9:26 PM
APPROVED:
HARPAL MANN, CHAIRPERSON
ATTEST:
CARMELA CAMPBELL, SECRETARY
City Council/RSA Agenda 123 Tuesday, March 8, 2022
PLANNING COMMISSION RESOLUTION NUMBER # 02-22
RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF UNION CITY
RECOMMENDING TO THE CITY COUNCIL APPROVAL OF DEVELOPMENT AGREEMENT (DA-22-001) ASSOCIATED WITH THE WINDFLOWER - BLOCK 2 -
DEVELOPMENT PROJECT
WHEREAS, in accordance with California Government Code sections 65864 et seq. (the “Development Agreement Statute”), which authorizes cities to enter into agreements for the development of real property with any person having a legal or equitable interest in such property in order to establish certain development rights, the City of Union City (“City”) adopted Chapter 18.104, Procedures and Requirements for Consideration of Development Agreements, to implement procedures for the processing and approval of development agreements; and
WHEREAS, the Development Agreement Statute and Chapter 18.104 require the Planning Commission to hold a public hearing and make findings regarding the Development Agreement; and
WHEREAS, Windflower Properties, LLC, (“Applicant”) is requesting approval of a Development Agreement (DA-22-001) for the Windflower – Block 2 – development project; and
WHEREAS, the project site consists of 3.5 acres (“Property”) and is located at 34302 11th Street between Galliano Way and Berger Way (APN: 087-340-002); and WHEREAS, the Applicant previously received certain land use approvals from the City for the development of a multi-family residential development on the Property by the City Council on November 14, 2017 per Resolution No 5143-17 (the “Project Approvals”) ;and
WHEREAS, the Applicant and the City desire to enter into a Development Agreement in order to provide the Applicant with some certainty in the land use regulatory process until the Developer commences construction of the Project and to extend the Project Approvals until December 31, 2024;and
WHEREAS, the proposed Development Agreement is labeled Exhibit A, attached hereto and made part hereof; and
WHEREAS, pursuant to Section 15162 and 15168 of the CEQA Guidelines, the proposed Windflower project is within the scope of the project and analysis in the November 2010 Station District Mixed-use Development Project EIR (City Council Resolution 4072-10) and the 2040 Union City General Plan Update EIR (City Council Resolution No. 5548-19). All adopted mitigation measures continue to apply to the project; and
Attachment 4
DocuSign Envelope ID: C9061FF2-293C-4D07-A9EA-A41E285C79D3 City Council/RSA Agenda 124 Tuesday, March 8, 2022
Planning Commission Resolution No. #02-22
Windflower Block 2
Development Agreement
WHEREAS, the California Constitution, Article XI, Section 7, provides cities and counties with the authority to enact ordinances to protect the health, safety, welfare, and morals of their citizens; and
WHEREAS, pursuant to Section 65867 of the Government Code, the Planning Commission held a duly noticed public hearing on the proposed Development Agreement on February 17, 2022, at which time all interested parties had the opportunity to be heard.
The Planning Commission considered all written and oral testimony.
NOW, THEREFORE, BE IT RESOLVED, that the foregoing recitals are true and correct and made a part of this resolution.
BE IT FURTHER RESOLVED that the Planning Commission of the City of Union City hereby recommends that the City Council adopt an ordinance approving the Development Agreement and does hereby find as follows:
California Environmental Quality Act
1. That the project is within the scope of the Station District Mixed-Use Development Project EIR (certified in November 2010 by City Council Resolution No. 4072-10) and the 2040 Union City General Plan Update EIR (certified on December 10, 2019 by City Council Resolution No. 5548-19). No new information of substantial importance has been discovered requiring revisions to the impacts, mitigation measures or alternatives that were provided in either EIR. Additionally, there have not been any substantial changes with respect to City policies or requirements that would require additional environmental analysis, which determined that the project would not result in any significant environmental impacts with the incorporation of mitigation measures. All adopted mitigation measures continue to apply to the project. Thus, pursuant to Sections 15162 and 15168 of the CEQA Guidelines, the City has determined that no further analysis is required; and Development Agreement
2. That the proposed Development Agreement is consistent with the CSMU (Station Mixed Use Commercial) General Plan land use designation and related policies that apply to development in the Station District. The Development Agreement would foster a high-density, mixed use residential development, which helps support transit ridership. Additionally, the uses and design of the project encourage transit use and minimize automobile dependence; the project helps create a vibrant, transit-oriented mixed-use area, and is pedestrian-friendly and minimizes parking impacts on the streetscape and the neighborhood; and the project will be harmonious with existing and potential uses within the Station District and surrounding areas. The project is also consistent with the DIPSA Specific Plan, DocuSign Envelope ID: C9061FF2-293C-4D07-A9EA-A41E285C79D3 City Council/RSA Agenda 125 Tuesday, March 8, 2022
Planning Commission Resolution No. #02-22
Windflower Block 2
Development Agreement
which identified high-density residential and commercial development for the Station District area; and
3. That the proposed Development Agreement will not be detrimental to the health, safety and general welfare of persons residing in the immediate area, not be detrimental or injurious to property or persons in the general neighborhood or to the general welfare of the residents of the City as a whole because mitigation measures have been included to mitigate all potential significant environmental impacts to less than significant levels, and in addition, the project has been designed and conditioned consistent with applicable requirements to protect health and safety including the provision of adequate water supply including water used for fire suppression systems, adequate access for emergency vehicles, and that the project will also be constructed consistent with current Building Code requirements; and
4. That the proposed Development Agreement will not adversely affect the orderly development of property or the preservation of property values because it includes provisions to facilitate the orderly development of the project. The complexity, enormity and long-range nature of the project would be difficult for the developer to undertake if City had not determined, through this Development Agreement, to insert a sufficient degree of certainty in the land use regulatory process to justify the substantial financial investment associated with development of the project. As a result of the execution of this Development Agreement, both parties can be certain that the project can proceed without disruption caused by a change in planning and development policies and requirements, and such assurance will reduce the actual or perceived risk of planning, financing and proceeding with construction of the project; and
5. That the proposed Development Agreement is consistent with the provisions of Government Code Sections 65864 through 65869.5 because it provides some assurances to the applicant to proceed with the multi-year project in accordance with existing policies, rules and regulations in return for the provision of public benefits. A noticed public hearing on the Development Agreement was held by the Planning Commission.
BE IT FURTHER RESOLVED, that the Planning Commission of the City of Union City hereby recommends approval of the proposed Development Agreement, DA-22-001, to the City Council, as contained in Exhibit A, subject to final editing and minor revisions deemed necessary by the City Attorney or City Manager.
DocuSign Envelope ID: C9061FF2-293C-4D07-A9EA-A41E285C79D3 City Council/RSA Agenda 126 Tuesday, March 8, 2022
Planning Commission Resolution No. #02-22
Windflower Block 2
Development Agreement
I HEREBY CERTIFY that the foregoing resolution was introduced and adopted at a regular meeting of the Planning Commission of the City of Union City held on February 17, 2022 by the following vote:
AYES: MANN, GUIO, FINNERTY, LEW, SAKAKIHARA
NOES:
ABSTAINED:
ABSENT:
MOVED: LEW
SECONDED: GUIO
APPROVED
HARPAL MANN, CHAIRPERSON
ATTEST:
CARMELA CAMPBELL, SECRETARY
DocuSign Envelope ID: C9061FF2-293C-4D07-A9EA-A41E285C79D3 City Council/RSA Agenda 127 Tuesday, March 8, 2022
RESOLUTION NO. 5143-17
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF UNION CITY APPROVING SITE DEVELOPMENT REVIEW, SD-17-003 AND USE PERMIT, UP-17- 005 FOR THE DEVELOPMENT OF A 3.5 ACRE PARCEL (CURRENTLY CITYOWNED PARKING LOT) WITH UP TO 443 MULTI-FAMILY MARKET RATE RESIDENTIAL UNITS (INCLUDING 11 RESIDENTIAL LOFTS AND 13 LIVE/WORK UNITS),± 5,088 SQUARE FEET RETAIL SPACE, A SIX-LEVEL PARKING STRUCTURE, AND RELATED SITE IMPROVEMENTS AT 34302 11th STREET (APN 87-340-2)
WHEREAS, Windflower Properties, LLC., as applicant, has submitted applications for Site Development Review (SD-17-003) for the development of a 3.5 acre parcel (currently Cityowned parking lot) with up to 443 multi-family market rate residential units (including 11 residential lofts and 13 live/work units), ± 5,088 square feet retail space, a six-level parking structure, and related site improvements (APN 87-340-2); and WHEREAS, the applicant is also requesting Use Permit (UP-17-005) approval for high density residential uses and live/work units, a building height greater than 65 feet, and a development modification related to storage space,
WHEREAS, the project site has a General Plan and Zoning designation of CSMU (Station Mixed Use Commercial); and
WHEREAS, the project plans are labeled Exhibit A, attached hereto and made a part hereof; and
WHEREAS, it has been determined that pursuant to Section 15162 and 15168 of the CEQA Guidelines, the proposed Windflower project is within the scope of the project and analysis in the Station District Mixed-use Development Project EIR (certified in November 2010 City Council Resolution 4072-10). All adopted mitigation measures continue to apply to the project and no further analysis is required. Also, no new information of substantial importance has been discovered requiring revisions to the impacts, mitigation measures or alternatives that were provided in the EIR. Finally, there have not been any substantial changes with respect to City policies or requirements that would require additional environmental analysis, which determined that the project would not result in any significant environmental impacts with the incorporation of mitigation measures.; and
WHEREAS, pursuant to Section 65353 of the Government code, the Planning Commission held a duly noticed public hearing on the project on October 19, 2017; and WHEREAS, the Planning Commission recommended approval of the project, by Resolution number 11-17, dated October 19, 2017 and incorporated herein by reference, on a 5-0 vote with minor modifications to the conditions of approval; and Attachment 5
City Council/RSA Agenda 128 Tuesday, March 8, 2022
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Item 6.a
Development Agreement – Windflower - Block 2
DA-22-001
March 8, 2022
City Council/RSA Agenda 168 Tuesday, March 8, 2022
2 Property Information
Applicant: Windflower Properties, LLCOwner: City of Union CityLocation: 34302 11th StreetGeneral Plan: Station Mixed-Use Commercial (CSMU)Zoning: Station Mixed-Use Commercial (CSMU) Lot Size: 3.5 acres City Council/RSA Agenda 169 Tuesday, March 8, 2022
3 Vicinity Map
City Council/RSA Agenda 170 Tuesday, March 8, 2022
4 - Site Development Review (SD-14-003)
• Development of 443 market-rate, multi-family dwelling units • Six-level parking structure with 460 parking space s
• 5,088 square-feet of ground-floor retail space• Public and private courtyards and site amenities. - Use Permit (UP-14-006)
• Mixed-use development within the CSMU zoning district• High-density residential units and live/work units• Height > 65 feet• Modify existing storage requirements - Disposition and Development Agreement
Windflower - Block 2 Approvals
City Council/RSA Agenda 171 Tuesday, March 8, 2022
5 11th Street Project Elevation
City Council/RSA Agenda 172 Tuesday, March 8, 2022
6 Site Plan
City Council/RSA Agenda 173 Tuesday, March 8, 2022
7 - Potential modifications include:
• Relocation of certain amenities within the site;• Reconfiguration of parking facilities; • Reduction in height of certain buildings; • Modification to the scope of on-site parking and storage; • Change to ground-floor uses; and• Change to unit types and the total number of residential units • Applicant has showed some concept drawings to staff but has not submitted an application for the modifications
Anticipated Request to Modify Project Approvals
City Council/RSA Agenda 174 Tuesday, March 8, 2022
8 - Voluntary agreements commonly used for major projects that will be phased over multiple years to provide some degree of certainty to the applicant regarding the policies, regulations, and fees applied to the applicant in return for benefits to the City - Vests land use approvals for a specific period normally beyond what is allowed in the UCMC
- DA procedures and requirements codified in UCMC Chapter 18.104 • DAs are adopted by ordinance and are subject to a second reading Development Agreement (DA)
City Council/RSA Agenda 175 Tuesday, March 8, 2022
9 Draft DA – Windflower - Block 2 - Contents
- Extension of Approvals
- December 31, 2024 for commencement of construction- Same as in the DDA - DA Term
- Five years from the effective date of the DA- Includes provisions beyond construction start deadline of December 31, 2024 - Public Art
- Project is subject to Art in Public Spaces Program- Includes option for use of ground floor space as Community Art Space (Studio 11 model)
City Council/RSA Agenda 176 Tuesday, March 8, 2022
10 Draft DA – Windflower - Block 2 - Contents
- Subsequent Approvals
• DA addresses future amendments to the project approvals• Categorizes future amendments as either “major” or “minor”• “Major” amendments will require review and approval by the Planning Commission and the City Council
• “Minor” amendments can be approved by the Economic and Community Development Director
City Council/RSA Agenda 177 Tuesday, March 8, 2022
11 CEQA Determination
- Project is Compliant With the Scope of Previously Certified EIRs - No new information has been discovered regarding the following: - Information requiring changes in adopted mitigation measures - Changes in City policies or requirements - Pursuant to CEQA Guidelines Sections 15162 and 15168, no further analysis is required.
City Council/RSA Agenda 178 Tuesday, March 8, 2022
12 Planning Commission Review
• Planning Commission held a Public Hearing on February 17, 2022 • Commission voted 5-0 to adopt a Resolution making the required findings and recommending the City Council introduce an ordinance approving Development Agreement (DA-22-001) for the Windflower –Block 2 project.
City Council/RSA Agenda 179 Tuesday, March 8, 2022
13 Recommendation
Introduce an Ordinance (Attachment 1) approving Development Agreement (DA-22-001) for the Windflower – Block 2 project, for the purpose of extending project approvals that were previously approved by the City Council on November 14, 2017.
City Council/RSA Agenda 180 Tuesday, March 8, 2022
Agenda Item
DATE: 3/8/2022
TO: HONORABLE MAYOR AND CITY COUNCIL
FROM: KRISTOPHER J. KOKOTAYLO, CITYATTORNEY
SUBJECT: PUBLIC HEARING TO RECEIVE COMMUNITY INPUT REGARDING
DISTRICT BOUNDARIES FOR DISTRICT-BASED ELECTIONS
PURSUANT TO ELECTIONS CODE SECTION 21607.1 (4
th HEARING) AND
ADOPT AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
UNION CITY ADOPTING THE FINAL MAP OF DISTRICT BOUNDARIES
FOR DISTRICT-BASED ELECTIONS OF COUNCILMEMBERS IN
ACCORDANCE WITH THE REDISTRICTING PROCESS FOR THE 2020
FEDERAL DECENNIAL CENSUS, AND AMENDING UNION CITY
MUNICIPAL CODE SECTION 2.04.510– START TIME AT 7:30 P.M.
As the City Council may recall, the City transitioned from at-large councilmember elections to district-based elections in 2019. This transition brought councilmember elections under the purview of the Fair and Inclusive Redistricting for Municipalities and Political Subdivisions Act (the “Fair Maps Act” or “the Act”) which establishes certain procedural and legal requirements for reviewing the boundaries of voting districts and readopting new boundaries based on current census data. As part of the process, the City is required to provide the community with the opportunity to submit maps for review and consideration and must conduct a minimum of four public hearings.
The City Council held the first public hearing to receive community input regarding district boundaries for district-based elections on November 9, 2021. Following the first public hearing, the City engaged in community outreach and provided tools to allow members of the public to participate and propose potential district maps. The City received 3 proposed maps and the City’s consultant, National Demographics Corporation (“NDC”), prepared 3 proposed maps.
The City Council conducted the second public hearing on January 25, 2022 to consider the drawn maps.
Following the second public hearing, the City Council provided general direction based on the maps that were drawn and sought a map that consisted of a version of maps 101 and 201 with some elements of map 103.
The City Councilconducted a third public hearing on February 22, 2022 to consider a newly drawn map based on the understanding of Council direction from the January 25, 2022 public hearing and to consider previously drawn maps. The City Council selected Map 201, conducted a first reading and introduced an ordinance City Council/RSA Agenda 181 Tuesday, March 8, 2022
adopting the final map of district boundaries in accordance with the redistricting process for the 2020 federal decennialcensus.
Staff recommends that the City Councilconduct a fourth and final public hearing to solicit community input on boundaries and composition of new councilelection districts, review the drawn map, and consider adopting an ordinance adopting the final map of district boundaries for district-based elections of Councilmembers in accordance with the redistricting process for the 2020 Federal Decennial Census, and amending Union City Municipal Code section 2.04.510.
STRATEGIC PLAN ALIGNMENT
This action is related to Goal B, Strategy 3 of the Strategic Plan:
3. Implement a new system of electing councilmembers by district and establish protocols for governance.
BACKGROUND
Every ten years, following the Federal Decennial Census, cities that use district-based election systems must review the boundaries of voting districts and re-adopt new boundaries based on current census data to ensure that the districts remain substantially equal and still protect the rights of members of communities of interest to vote for candidates of their choice. The Fair Maps Act establishes multiple requirements on the process of redistricting, including the need for public hearings.
The City hired NDC to serves as the City’s consultant and demographer to assist with the redistricting process. At the first public hearing on November 9, 2021, Mr. Robert McEntire provided a presentation with background regarding the redistricting process. Following the November 9, 2021 City Council meeting, the City engaged in extensive public outreach and provided mapping tools for the public to provide input and submit their own maps.
The City Council held a second public hearing on January 25, 2022 to consider the drawn maps that were prepared by NDC as well as members of the public. Following the second public hearing, the City Council eliminated four of the maps but provided general direction for NDC to prepare map that consisted of a version of maps 101 and 201 with some elements of map 103. NDC drew a map based on the understanding of Council direction that was presented at a public hearing to the City Council on February 22, 2022.
The City Council held a third public hearing on February 22, 2022 to consider a newly drawn map as well as previously drawn maps. Following the public hearing, the City Council selected Map 201, conducted a first reading and introduced an ordinance adopting the final map of district boundaries in accordance with the redistricting process for the 2020 federal decennialcensus.
DISCUSSION
Union City Municipal Code Section 2.40.520 provides that members of the City Council for District 1 shall be elected every four years after November 2020. Districts 2, 3, and 4 shall be elected at the November 2022 general municipal election and every four years thereafter. In November 2020, the City’s voters participated in the first district based election for District 1. Since the City Council's transition to district elections, the State has enacted additional laws governing the redistricting process, which sets forth revised redistricting criteria and deadlines for the adoption of new boundaries by the local governing body, hearing procedures that would allow the public to provide input on the placement of boundaries and on proposed boundary map, and requirements to encourage resident participation in the redistricting process.
City Council/RSA Agenda 182 Tuesday, March 8, 2022
Dates Actions
November 9, 2021 Public Hearing #1* HELD
January 20, 2022 Deadline to Post Notice of Hearing # 2 January 25, 2022 Public Hearing #2* HELD
February 17, 2022 Deadline to Post Notice of Hearing # 3 February 22, 2022 Public Hearing #3*: Introduce ordinance HELD March 3, 2022 Deadline to Post Notice of Hearing # 4
March 8, 2022 Public Hearing #4*: FinalAdoption of Ordinance.
April 17, 2022 Deadline to Adopt final map for Novemberelections.
By law, the City must hold at least four public hearings to enable community members to provide input on the drawing of district maps. The City must hold at least one public hearing to receive input on the composition of the district maps before draft district maps are drawn. The City must hold at least two public hearings after the maps are drawn.
The City Council held the second public hearing after maps were drawn on January 25, 2022 and provided direction regarding a proposed map. On February 22, 2022 the City Council held third public hearing and considered the newly drawn map as wellas priordrawn maps. The City Councilelected to utilize a prior drawn map (Map 201) waived full reading and introduced an ordinance by title only adopting the final map of district boundaries in accordance with the redistricting process for the 2020 federal decennial census. Staff now recommends that the City Council conduct the fourth and final public hearing, and adopt the proposed ordinance implementing the selected council election district map. This would be consistent with the original anticipated timeline below.
Timeline for Redistricting Hearings
The City Attorney’s Office developed the following schedule for hearings as part of the redistricting process:
*Hearings must be held in accordance with the Fair Maps Act.
The first public hearing was held on November 9, 2021, the second hearing was held on January 25, 2022, and the third hearing was held on February 22, 2022. Consistent with the requirements of the Fair Maps Act and the schedule adopted, staff recommends that the City Councilconduct a fourth hearing and adopt an ordinance adopting the final map of district boundaries in accordance with the redistricting process for the 2020 federal decennialcensus.
Public Outreach and Input Regarding Composition of Districts City staff have engaged in extensive public outreach consistent with the requirements under State law. This included establishing a committed link on the City’s main webpage where the public could obtain information and follow the redistricting process, multiple e-mail blasts, and providing information on social media.
Under State law, draft districting maps must be published seven days prior to final adoption. City staff has published map 201 seven days in advance of this public hearing.
Criteria for Consideration of District Boundaries
City Council/RSA Agenda 183 Tuesday, March 8, 2022
As the Council is aware, in addition to the requirements that the districts must be substantially equal in population based upon federal census data and in compliance with the U.S. and California Constitutions and the U.S. Voting Rights Act of 1965, the Fair Maps Act requires that Council adopt the district boundaries based upon the following criteria in order of priority:
1. Be geographically contiguous;
2. Respect the geographic integrity of neighborhoods or “communities of interest” by minimizing division;
3. Be easily identifiable and understandable by residents and bounded by natural or other barriers, streets or City boundaries;
4. Encourage geographical compactness in a manner that nearby areas of populations are not bypassed for more distant populations; and
5. Not favor or discriminate against a political party.
Map 201 complies with these requirements.
FISCAL IMPACT
There are no direct costs associated with the City Councilconducting a public hearing to solicit community input on boundaries and composition of new council election districts and introduction of the proposed ordinance.
RECOMMENDATION
Staff recommends the City Council conduct a fourth public hearing to solicit community input on the potential boundaries and composition of new council election districts, consider the drawn draft map, and, if the City Council is comfortable with the draft map, waive full reading, conduct a second reading and adopt the proposed ordinance. Should the City Council seek further revisions to the drawn draft map, the City Council should provide that direction and staff will return accordingly.
Prepared by:
Kristopher J. Kokotaylo, City Attorney
Submitted by:
Kristopher J. Kokotaylo, City Attorney
ATTACHMENTS:
Description Type
Redistrict Ordinance Ordinance
NDCPlan Map 201 Exhibit
NDCPlan 201 Demographics Exhibit
Power Point Attachment
City Council/RSA Agenda 184 Tuesday, March 8, 2022
ORDINANCE NO. ______
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
UNION CITY ADOPTING THE FINAL MAP OF DISTRICT BOUNDARIES FOR
DISTRICT-BASED ELECTIONS OF COUNCILMEMBERS IN ACCORDANCE WITH THE REDISTRICTING PROCESS FOR THE 2020 FEDERAL DECENNIAL CENSUS, AND AMENDING UNION CITY MUNICIPAL CODE SECTION 2.04.510 WHEREAS, on October 8, 2019, the City of Union City (“City”) adopted Ordinance No. 862.19 amending Chapter 2.04 of the Municipal Code and changing the City from an at-large to a districtbased voting system, adopting boundaries for the City’s four voting districts and establishing an implementation schedule for conversion to district-based voting during the 2020 and 2022 election cycles; and
WHEREAS, the City Council (“Council”) is the governing body of the City, and the Council is comprised of five members, including the directly elected Mayor and four Councilmembers; and WHEREAS, pursuant to Elections Code section 21601(a), the City is required to update (“redistrict”) its district boundaries every ten years, following the receipt of updated population data from each Federal Decennial Census; and
WHEREAS, since the City has district-based elections for four Councilmembers, the City is required to redistrict the district boundaries prior to the next election of Councilmembers in 2022.
Councilmember District 1 was on the ballot on November 3, 2020, and Councilmember Districts 2, 3, and 4 will be on the ballot in November 2022; and WHEREAS, while the City recently established the district boundaries on October 8, 2019, the boundaries are based on the 2010 Federal Census, and the City must now update the boundaries through the redistricting process based on the 2020 Federal Census; and WHEREAS, in 2019, the Fair And Inclusive Redistricting for Municipalities And Political Subdivisions (“FAIR MAPS”) Act (AB 849) amended the process and criteria by which the City must evaluate and adjust its voting district boundaries; and WHEREAS, on November 9, 2021, the City Council held its first Public Hearing prior to drawing a draft map or maps consistent with Elections Code section 21607.1(a)(1) to receive public input regarding communities of interest and the composition of council districts; and WHEREAS, following the November 9, 2021 Public Hearing, the City made public mapping tools available and engaged in significant public outreach consistent with the requirements of the FAIR MAPS Act to invite the public to provide input and proposed maps for Council consideration; and WHEREAS, on January 25, 2022, consistent with California Elections Code section 21627.1, the City Council held its second Public Hearing to review drawn draft maps and to receive public input regarding communities of interest and the composition of council districts. The City Council City Council/RSA Agenda 185 Tuesday, March 8, 2022
provided direction to the City’s demographer, National Demographics Corporation, regarding the drawn maps and preparing a further map for evaluation; and WHEREAS, at its regular meeting on February 22, 2022, the City Council held its third public hearing to review the drawn draft map and to receive public input regarding communities of interest and the composition of council districts. and consider a proposed ordinance adopting the final map of district boundaries for district-based elections of Councilmembers in accordance with the redistricting process for the 2020 Federal Decennial Census, as required by California Elections Code sections 21601 and 21607.1; and the Council introduced this ordinance to adopt the district boundary map (consistent with what is documented in this ordinance on Exhibit A); and
WHEREAS, prior to final adoption, at its regular meeting on March 8, 2022, the City Council held its fourth public hearing to review the drawn draft map and to receive public input regarding communities of interest and the composition of council districts, and consider a proposed ordinance adopting the final map of district boundaries for district-based elections of Councilmembers in accordance with the redistricting process for the 2020 Federal Decennial Census, as required by California Elections Code sections 21601 and 21607.1; and to adopt this ordinance to adopt the district boundary map (consistent with what is documented in this ordinance on Exhibit A); and
WHEREAS, the City has complied with all requirements of California Elections Code sections 21600 – 21609; and
WHEREAS, the District Boundary Map adopted as a part of this Ordinance (attached hereto as Exhibit A and incorporated herein by reference) complies with the legal criteria and order of priority established by California Government Code Section 21601; and WHEREAS, this Ordinance is intended to provide for the district-based election of four Councilmembers of the City of Union City by-district in four single-member districts, retaining a directly elected office of Mayor; and
WHEREAS, throughout the foregoing process, the City engaged in a significant amount of public outreach and engagement above and beyond the requirements of the FAIR MAPS Act; and WHEREAS, the City Council has considered all information related to this matter, as presented at the public meetings of the City Council identified herein, and as published on the City’s redistricting webpage (https://www.unioncity.org/414/By-District-Elections), including any supporting reports by City staff, and any information provided during public meetings.
THE CITY COUNCIL OF THE CITY OF UNION CITY DOES ORDAIN AS FOLLOWS:
SECTION 1. Findings and determinations. The City Council hereby finds and determines that the facts set forth in the recitals to this Ordinance are true and correct, and establish the factual bases for the City Council’s adoption of this Ordinance.
City Council/RSA Agenda 186 Tuesday, March 8, 2022
SECTION 2. District Boundary Map. The City Council hereby approves and adopts as its “final map” (as that phrase is used in California Elections Code Sections 21607.1) the District Boundary Map for the District-Based election system for four Councilmembers, identifying the district boundaries for each of the four districts, as set forth on Exhibit A, attached hereto and incorporated herein by reference. The District Boundary Map shall be published on the City’s webpage (https://www.unioncity.org/414/By-District-Elections) and is hereby adopted as Exhibit A in Section 2.04.510(A) of the Union City Municipal Code and incorporated herein by this reference.
SECTION 3. Implementation. If necessary to facilitate the implementation of this Ordinance, the City Council hereby authorizes the City Manager, or designee, to make technical adjustments to the district boundaries adopted in this Ordinance that do not substantively affect the populations in the districts, the eligibility of candidates, or the residence of elected officials within any district. The City Manager shall consult with the City Attorney concerning any technical adjustments deemed necessary and shall advise the City Council of any such adjustments required in the implementation of the districts.
SECTION 4. CEQA. The City Council finds that the actions authorized by this Ordinance are not subject to the requirements of the California Environmental Quality Act (“CEQA”) pursuant to CEQA Guidelines Sections 15060(c)(2) and 15061(b)(3) since the actions will not result in a direct or reasonably foreseeable indirect physical change in the environment.
SECTION 5. Severability. If any section, sub-section, subdivision, paragraph, clause or phrase in this Ordinance, or any part thereof, is for any reason held to be invalid or unconstitutional by a decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining sections or portions of this Ordinance or any part thereof. The City Council hereby declares that it would have passed each section, sub- section, subdivision, paragraph, sentence, clause or phrase of this Ordinance, irrespective of the fact that any one or more sections, subsections, subdivisions, paragraphs, sentences, clauses or phrases may be declared invalid or unconstitutional.
SECTION 6. Publication and effective date. Within fifteen (15) days from and after adoption, this Ordinance shall be published once in the Tri-City Voice, a newspaper of general circulation printed and published in Alameda County and circulated in the City of Union City, in accordance with California Government Code Section 36933. This Ordinance shall take effect and be enforced thirty (30) days after its adoption.
PASSED, APPROVED, AND ADOPTED by the City Council of the City of Union City at a regular meeting held on _________, 2022, by the following vote:
AYES: COUNCILMEMBERS:
NOES: COUNCILMEMBERS:
ABSENT: COUNCILMEMBERS:
ABSTAIN: COUNCILMEMBERS
APPROVED:
City Council/RSA Agenda 187 Tuesday, March 8, 2022
_____________________________
Carol Dutra-Vernaci, Mayor
ATTEST: APPROVED AS TO FORM:
_____________________________ ______________________________ Anna Brown, City Clerk Kristopher J. Kokotaylo, City Attorney City Council/RSA Agenda 188 Tuesday, March 8, 2022
880
4 1
3 2
Royal An
Dr
Alvarado Blvd
Union
City Blvd
Dyer St
Smith St
Decoto
Rd
H St
Mis ion Blvd
Alvarado Niles Rd
Whipple Rd Central AveAlmaden
Blvd
Lowry Rd
7th St
Railroad Ave
NDC Plan 201
Union City 2021/22 Redistricting
National Demographics Corporation, January 18, 2022
Total Population Deviation: 4.9%
Most Latino District: 2 (34% CVAP)
The boundaries of the current districts
are shown in black.
The boundaries of the proposed districts
are shown in yellow, with colored fill.
City Council/RSA Agenda 189 Tuesday, March 8, 2022 ©2021 CALIPER Category Field 1 2 3 4 Total
Total Population 17,125 17,991 17,771 17,331 70,218
Population Deviation -430 437 217 -224 866
Pct. Deviation -2.45% 2.48% 1.23% -1.28% 4.93%
Hispanic/Latino 19% 39% 18% 10% 22%
NH White 13% 12% 10% 9% 11%
NH Black 5% 4% 5% 5% 5%
NH Asian/Pac.Isl. 60% 43% 64% 74% 60%
NH Native Amer. 0% 0% 0% 0% 0%
Total 11,265 11,671 13,745 12,828 49,509
Hisp 21% 34% 16% 9% 20%
NH White 21% 21% 18% 16% 19%
NH Black 6% 5% 7% 4% 6%
Asian/Pac.Isl. 50% 39% 58% 70% 55%
Native Amer. 0% 0% 0% 0% 0%
Total 9,404 9,770 10,531 11,042 40,747
Latino est. 26% 40% 26% 20% 27%
Spanish-Surnamed 24% 36% 24% 18% 25%
Asian-Surnamed 27% 22% 26% 34% 27%
Filipino-Surnamed 8% 5% 12% 11% 9%
NH White est. 33% 29% 27% 29% 29%
NH Black 7% 6% 10% 7% 8%
Total 7,491 7,494 8,254 8,952 32,191
Latino est. 26% 39% 26% 19% 27%
Spanish-Surnamed 24% 36% 24% 18% 25%
Asian-Surnamed 27% 22% 26% 34% 27%
Filipino-Surnamed 8% 5% 12% 11% 9%
NH White est. 33% 29% 27% 29% 29%
NH Black 7% 6% 10% 7% 8%
Total 4,853 4,690 5,293 5,843 20,679
Latino est. 26% 40% 25% 19% 27%
Spanish-Surnamed 24% 37% 23% 18% 25%
Asian-Surnamed 24% 20% 24% 31% 25%
Filipino-Surnamed 6% 5% 11% 10% 8%
NH White est. 36% 31% 29% 31% 32%
NH Black est. 7% 6% 10% 8% 8%
age0-19 19% 22% 22% 20% 21%
age20-60 59% 61% 55% 54% 57%
age60plus 22% 17% 23% 25% 22%
immigrants 44% 43% 43% 51% 45%
naturalized 61% 57% 72% 75% 67%
english 38% 33% 36% 34% 35%
spanish 13% 26% 13% 6% 14%
asian-lang 28% 25% 40% 42% 34%
other lang 21% 16% 11% 19% 16%
Language Fluency Speaks Eng. "Less than
Very Well" 18% 18% 20% 21% 20%
hs-grad 43% 47% 46% 40% 44%
bachelor 25% 22% 26% 30% 26%
graduatedegree 19% 14% 9% 17% 15%
Child in Household child-under18 34% 37% 38% 39% 37%
Pct of Pop. Age 16+ employed 67% 68% 63% 62% 65%
income 0-25k 8% 6% 9% 6% 7%
income 25-50k 11% 10% 12% 8% 10%
income 50-75k 10% 15% 15% 10% 13%
income 75-200k 50% 51% 47% 50% 49%
income 200k-plus 21% 19% 17% 27% 21%
single family 66% 70% 87% 95% 79%
multi-family 34% 30% 13% 5% 21%
rented 44% 44% 31% 15% 34%
owned 56% 56% 69% 85% 66%
Housing Stats
Voter Registration (Nov
2020)
Voter Turnout (Nov
2020)
Total population data from California's adjusted 2020 Census data. Citizen Voting Age Population, Age, Immigration, and other demographics from the 2015-2019 American Community Survey and Special Tabulation 5-year data. Turnout and Registration data from California Statewide Database ("Latino" figures calculated by NDC using Census Bureau's Latino undercount by surname estimate).
Voter Turnout (Nov
2018)
Household Income
Education (among those
age 25+)
Immigration
Age
Language spoken at
home
Union City - NDC Plan 201
2020 Census
Total Pop.
Citizen Voting Age Pop
City Council/RSA Agenda 190 Tuesday, March 8, 2022
CITY COUNCIL MEETING
FEBRUARY 22, 2022
City Council/RSA Agenda 191 Tuesday, March 8, 2022
Public Hearing to Receive
Community Input Regarding
District Boundaries for DistrictBased Elections and Adopt an Ordinance Adopting Final Maps
ITEM 6.bMarch 8, 2022
City Council/RSA Agenda 192 Tuesday, March 8, 2022
3 RecommendationWaive further reading and conduct a second reading and adopt an ordinance adopting the final map of district boundaries for district-based elections of Councilmembers in accordance with the redistricting process for the 2020 federal decennial census and amending Union City Municipal Code section 2.04.510.
Recommendation
City Council/RSA Agenda 193 Tuesday, March 8, 2022