Union City City Council
April 9, 2024

AG-24-001 & A-24-001

3. Staff report, page 4, Table 1, the following parcels are listed as being shown on Map No. A3 but are actually shown on Map Area A4: APN 475-100-4, APN 475-100-38, APN 475-111-11, APN 475-111-10, and APN 475-100-36. Please explain these inconsistencies.

The APNs listed in the comment above should be included in Table 1 under the heading A4. Table 1 will be updated in the staff report provided to the City Council.

4. Staff report, page 4, Table 1 shows two parcels listed as shown on Map No. A4, but they have already been listed on Map No. A1. Please explain the duplicate listings.

Table 1 will be updated in the staff report provided to the City Council.

5. Table 1 in the staff report is inconsistent with Table 1 in Exhibit C, pages 2-1 through 2-3. Please clarify the needed corrections to ensure consistency between the two documents.

Table 1 in the Addendum will be updated to reflect Table 1 in the staff report including any updates discussed in this Desk Item. Any Planning Commission motion will need to reference this update to the Addendum.

6. Exhibit A, Map Area A2 shows an existing agriculture (A) parcel on Whipple Rd., north of Horner St. This same parcel is proposed as open space (OS) but no mention of this parcel is contained in Tables 1 and 2. In addition, the parcel designated as an existing agriculture parcel is inconsistent with the color key. Please explain the errors and omissions regarding this parcel.

Exhibit A, Existing Designations- Area A2, shows the wrong general plan designation of Agriculture (A) for the parcel referenced in the comment above (APN 482-20-19-5). The parcel is located along the westerly side of Whipple Road between Horner Street and Bettencourt Way.

Attached is an updated Exhibit A-Area A2 showing the correct general plan designation of Open Space (OS) consistent with what is shown on the bottom map entitled “Proposed DesignationsArea A2”. Please note that no changes are proposed to this site’s general plan designation. An amendment is proposed to the site’s zoning designation from A to OS for consistency with the existing general plan designation, which may have led to the error. An updated Exhibit A is attached showing the change and should be referenced in any actions regarding the project. See figure 1 below, Exhibit A, Area 2, showing the update.

7. Staff report, page 7, Table 2, Map No. B3 shows APN 475-15-9-1 but this parcel is not shown in Exhibit B, Map Area B3. Should the parcel number be 475-150-9-1? Please clarify and confirm the proposed zoning district and rationale for change are correct as shown in the staff report.

City Council/RSA Agenda 203 Tuesday, April 9, 2024
Desk Item

AG-24-001 & A-24-001
Figure 1
Updated with correct General
Plan designation of OS
City Council/RSA Agenda 204 Tuesday, April 9, 2024
Desk Item

AG-24-001 & A-24-001
See staff response #1 above. The number included in Table 2 for this APN is incorrect and will be updated from 475-15-9-1 to 475-150-9-1 in the staff report provided to the City Council. The exhibit is correct.

8. Staff report, page 7, Table 2, Map No. B4 shows APN 475-111-14, but the parcel as shown on Exhibit B, Map Area B4 is unclear. Please provide a drawing that shows this parcel in its entirety and confirm the proposed zoning and rationale for the change are correct as shown in the staff report.

See Figure 2 below showing parcel in its entirety and the relocated boundary between the ML and MS general plan and zoning designations, which are part of the proposed amendments. Table 2 of the staff report provided to City Council will be updated to reflect that the change is proposed to better align with the proposed general plan and zoning designations of the adjacent parcel.

Existing boundary line between
MS and ML General Plan and
Zoning designations
APN 475-111-14 Proposed boundary line between
MS and ML General Plan and
Zoning designations
Figure 2
City Council/RSA Agenda 205 Tuesday, April 9, 2024
Desk Item

AG-24-001 & A-24-001

9. Staff report, page 8, Table 2, Map No. B8 shows APN 482-40-8-1 listed once but Exhibit B, Map Area B8 shows two parcels with this number. Please confirm there are two parcels with the same parcel number and they are correctly shown as one parcel in the staff report.

The map shows APN 482-40-8-1 incorrectly split into two parcels. This is an issue with the City’s Geographic Information Systems (GIS) underlying parcel layer and will need to be updated in the system by the City’s third-party vendor. For purposes of the proposed amendments, the zoning designation update from 511 to OS will apply to both portions of APN 482-40-8-1 as detailed in the exhibit.

Attachment: Updated Exhibit A showing correction to Area A2 Diagram City Council/RSA Agenda 206 Tuesday, April 9, 2024
Exhibit A: Existing and Proposed General Plan Designations Proposed Designations – Area A1
Existing Designations – Area A1
City Council/RSA Agenda 207 Tuesday, April 9, 2024
Exhibit A: Existing and Proposed General Plan Designations Existing Designations – Area A2
Proposed Designations – Area A2
City Council/RSA Agenda 208 Tuesday, April 9, 2024
Exhibit A: Existing and Proposed General Plan Designations Proposed Designations – Area A3
Existing Designations – Area A3
City Council/RSA Agenda 209 Tuesday, April 9, 2024
Exhibit A: Existing and Proposed General Plan Designations Proposed Designations – Area A4
Existing Designations – Area A4
City Council/RSA Agenda 210 Tuesday, April 9, 2024
Planning Commission Minutes 1 March 21, 2024
ATTACHMENT 6

CITY OF UNION CITY
DRAFT

MINUTES FOR THE REGULAR PLANNING COMMISSION MEETING
ON THURSDAY, MARCH 21, 2024 AT 7:00 P.M.

IN THE COUNCIL CHAMBERS OF CITY HALL
34009 ALVARADO-NILES ROAD
UNION CITY, CA 94587

1. CALL TO ORDER
A. PLEDGE OF ALLEGIANCE
B. ROLL CALL
PRESENT: Chairperson Jo Ann Lew, Vice Chairperson Seyi Mclelland, and Commissioners Lee Guio, Ignacio Romero and Amandeep Sandhu
ABSENT: Alternate Commissioners Kevin Finnerty and Prairna Gupta Garg
STAFF: Carmela Campbell (Economic & Community Development Director); Alex Mog (Deputy City Attorney) and Tracey
Barragan (Administrative Assistant)

2. APPROVAL OF MINUTES

1. The regular Planning Commission Minutes of February 1, 2024 The minutes of the regular Planning Commission meeting of February 1, 2024 were accepted, as shown.

3. ORAL COMMUNICATIONS: None

4. WRITTEN COMMUNICATIONS: None

5. PUBLIC HEARINGS
A. CONTINUED HEARINGS: None
B. NEW HEARINGS

1. CITY OF UNION CITY, GENERAL PLAN AG-24-001 AND
ZONING MAP AMENDMENTS (A-24-001), CITYWIDE. The City
of Union City is requesting approval of amendments to the General Plan Land Use Diagram and the Official Zoning Map for multiple sites, both for consistency with the 2040 General Plan and to better align with existing parcel lines, building locations, and historic and current land uses. An Addendum to the 2040 General Plan Environmental Impact Report (State Clearinghouse No. 2018102057) has been prepared consistent with Section 15164 of the California Environmental Quality Act (CEQA) Guidelines. The Addendum has demonstrated that the project would not result in any new significant impacts, nor City Council/RSA Agenda 211 Tuesday, April 9, 2024
Planning Commission Minutes 2 March 21, 2024
would it substantially increase the severity of previously identified significant impacts.

Carmela Campbell, Economic & Community Development Director, provided a PowerPoint presentation of the staff report for the project. A Desk Item had been prepared in response to comments from Chairperson Lew. The majority of the comments had been in response to inconsistencies between the Assessor Parcel Numbers (APN) listed in the exhibits and tables in the staff report. The staff report edits would be reflected in the version provided to the City Council and a minor update was needed to an addendum to reflect a typographical error on APN Area 3, and a new Exhibit A had been attached to the Desk Item to update the incorrect zoning designation shown on Area A2.

Ms. Campbell recommended the Planning Commission find that the Environmental Impact Report (EIR) Addendum was adequate, complete and in compliance with the California Environmental Quality Act (CEQA) and the Addendum would be updated to address the minor typographical error shown in the Desk Item; that the Planning Commission recommend approval of the General Plan Amendments to the Land Use Diagram and Zoning Amendments to the Official Zoning Map, as modified by the Desk Item, to the City Council pursuant to the findings included in the staff report and adopt resolutions confirming these actions.

Commissioner Guio referenced Exhibit A, Existing and Proposed General Plan Designations, the Existing Designations for Area A1 and the requirements for a greater setback and asked whether the mosque, as shown in Area A1 and B1, would require a larger setback when developed.

Ms. Campbell explained that if the mosque wanted to add a trash enclosure, as an example, since the property was zoned Residential, the mosque would be required to have a setback of 50 feet from the residentially zoned properties. Since the site functioned as one facility that could be an issue. The site had split designations that corresponded to the underlying parcel lines. A portion of the site that accommodated parking and some support buildings had a General Plan and zoning designation of RM 2500, which permitted a multifamily residential development. The remainder of the site had a Private Institutional (PI) General Plan and zoning designation. The City proposed to update the designation from RM 2500 to PI to better align the use with Zoning and General Plan designations for the remainder of the site. The use was considering some upgrades and the update would remove the requirements for enhanced setbacks associated with the current residential zoning designation.

Commissioner Guio again referenced Exhibit A, the Existing and Proposed General Plan Designations for Area A1 and the properties labeled as 483-15-68 adjacent to RM 1500, and asked whether those properties would require a greater setback due to the proposed amendments, and Ms. Campbell confirmed that an enhanced setback would be required.

Commissioner Guio referenced Exhibit B, Existing and Proposed Zoning, Existing Zoning for Area B5, and commented the legend on this page had shown both Corridor Mixed Use Commercial (CMU) and CSMU categories. He asked for clarification since the diagram had only shown the CMU category along Mission Boulevard.

Commissioner Guio asked for clarification of the special designation for the Monarch at Soares Ranch, Alvarado Niles/Madelyn Terrace in Area B10, which he understood would now have a new zoning designation.

Ms. Campbell explained that the site, which accommodated 63 townhomes and related common areas, had been included in the City’s previous Housing Element that covered the period from 2015 to 2023, as a future site for housing. Consistent with State law and the prior Housing Element, the site had been rezoned from RM 1500, which was a multifamily residential designation, to RM 1500-HE.

City Council/RSA Agenda 212 Tuesday, April 9, 2024
Planning Commission Minutes 3 March 21, 2024
Ms. Campbell stated the addition of “HE” (Housing Element) to the site’s base zoning designation of RM 1500 was to make it clear that the site, which was vacant at the time, had to be developed at a specific density. Now that the City had adopted an updated Housing Element and the project site has been developed, staff proposed to rezone the property back to its prior designation of RM 1500. That same situation would not come up again with another parcel since the City had adopted the 6th Cycle Housing Element and had done all the required rezoning.

Vice Chairperson Mclleland referenced Exhibit C, the Addendum to the 2040 General Plan EIR, and asked for clarification of the Mobility Element Goals and Policies, as shown on Page 3-4 of the Addendum. She also asked for a description of Complete Streets.

Ms. Campbell described the Complete Streets concept where to the extent feasible, streets should be designed for all users, which acknowledged a street could have priorities related to who was using the street. As an example, the industrial area had larger streets designed for truck movement but when doing an overlay zone or development in the area, there should be ways to enhance pedestrian and bicycle connectivity as well and ensure the various users did not conflict.

Vice Chairperson Mclleland again referenced Exhibit C and Goal M-2, Policy M-2.9, Safe Pedestrian Environment, as shown on Page 3-10 of the Addendum, which stated The City shall implement improvements to create a safe pedestrian environment. She asked for clarification of that policy.

Ms. Campbell explained the Addendum had reviewed the General Plan and the policies adopted in each element of the General Plan to determine conformance. The intent of Goal M-2 was that the City should be emphasizing a robust and interconnected bicycle and pedestrian circulation system throughout the City. The implementation program of this goal would ensure the Bicycle and Pedestrian Master Plan was up-to-date and there were other policies shown under this section that further implemented the goal.

Vice Chairperson Mclelland referenced Exhibit B, Existing and Proposed Zoning, Existing Zoning, Area B11, and asked what was being changed.

Ms. Campbell stated that Area B11 had three different designations and one APN. She identified the properties in Area B11, one of which was a Housing Element site that had been identified in the 5th Cycle Housing Element with a higher density zoning designation and which required the addition of an overlay zone requiring development at a minimum of 20 units. Staff proposed to remove the “-HE” designation and the adjacent PI zoning designation, to be updated and rezoned to Residential, since it had always been identified for housing. The zoning therefore would be changed from PI to the same zoning as the adjacent property, which was RM 1500. She also identified a parcel owned by Bay Area Rapid Transit (BART), which was used by BART to access the site through the Quarry Lakes Regional Park, which had not been proposed to be changed.

Commissioner Sandhu asked for further clarification for the zoning changes proposed to Area B4.

Ms. Campbell explained that the staff recommendation was to move the boundary in Area B4, which included the Dowe Business Park, Central Plaza, Provender Business Park, and Tarlton Properties. Ms. Campbell further explained that along portions of Alvarado-Niles Road generally between Western Avenue and Hop Ranch Road, the first 90 feet of frontage on the easterly side of Alvarado-Niles Road had a General Plan and Zoning designation of Special Industrial (MS).

The remaining portion of the property had a General Plan and Zoning designation of Light Industrial (ML). This configuration resulted in the boundary between the two designations going though sites and/or buildings and staff had to make an interpretation on which designations to apply.

City Council/RSA Agenda 213 Tuesday, April 9, 2024
Planning Commission Minutes 4 March 21, 2024
Ms. Campbell explained that staff had proposed to relocate the boundary lines of the two designations to better align with property lines and reflect the designations historically applied to the property by Planning Division staff.

The update would also facilitate the expansion of a long-term Union City business, Elite Badminton Facility, located in the Central Plaza development. The zoning change would not impact the existing businesses. She clarified that public storage uses had been eliminated from the Union City Municipal Code (UCMC) about 20-years ago and the storage facility in Area B4, a legal non-conforming use, could remain but not expand.

Commissioner Sandhu requested further clarification for the changes proposed for Area B5 and asked whether the new zoning would allow the development of housing.

Ms. Campbell stated the prior zoning and General Plan for Area B5 had been Commercial. Along Mission Boulevard there had been special provisions in the Zoning Ordinance that would have allowed for the development of Mixed-Use development but at a lower density and the CMU zoning designation increased the amount of residential that could be developed on the site.

Commissioner Romero referenced Attachment A and the legends shown on the land use diagrams and pointed out that some information appeared to be missing. Ms. Campbell explained that the document would be corrected to ensure the legends were accurate.

Chairperson Lew commented she had reviewed the Desk Item and found that everything had been covered.

PUBLIC HEARING OPENED
Dylan Veya referenced the properties that were being changed from General Industrial to Light Industrial and asked about the potential impacts.

Ms. Campbell understood the speaker was referring to the U.S. Pipe property on Whipple Road, and noted the change would be consistent with the General Plan designation of Light Industrial, with overlap in the uses. She clarified there were some uses that were allowed in the Heavy Industrial zoning designation but not allowed in the Light Industrial zoning designation.

Deputy City Attorney Alex Mog clarified and emphasized that any use that was allowed in the General Plan that was no longer allowed in the new zoning could continue, but could not expand.

Ms. Campbell expressed the willingness to have a follow-up conversation with the speaker and asked that he provide his contact information to staff.

PUBLIC HEARING CLOSED
Vice Chairperson Mclelland thanked staff for the comprehensive report.

Commissioner Romero appreciated the cleanup to ensure accurate and consistent records.

Commissioner Sandhu also thanked staff for the thorough report.

Commissioner Guio moved that the Planning Commission find that the Environmental Impact Report (EIR) Addendum was adequate, complete and in compliance with the California Environmental Quality Act (CEQA) and the Addendum would be updated to address the minor typographical error shown in the Desk Item; that the Planning Commission recommended approval of the General Plan Amendments to the Land Use Diagram and Zoning Amendments to the Official Zoning Map, as modified by the Desk Item, to the City Council pursuant to the findings City Council/RSA Agenda 214 Tuesday, April 9, 2024
Planning Commission Minutes 5 March 21, 2024
included in the staff report and adopted resolutions confirming these actions. Commissioner Mclelland seconded. The motion was carried by the following roll call vote:

AYES: (GUIO, LEW, MCLELLAND, ROMERO, SANDHU)
NOES: (NONE)
ABSTAIN: (NONE)
ABSENT: (FINNERTY, GUPTA, GARG)
The motion passed 5-2.

Ms. Campbell reported the City Council would consider the item on April 9, 2024.

6. SUPPLEMENTAL STAFF REPORTS: None
A. CONTINUED REPORTS: None
B. NEW REPORTS: None

7. ECONOMIC DEVELOPMENT REPORTS: None

8. COMMISSION MATTERS:

A. Follow-Up on Planning Commission Referrals to the City Council There was no report.

B. Upcoming Applications for the Regular Planning Commission Meeting on April 4, 2024
Ms. Campbell reported the Planning Commission meeting of April 4, 2024 would include a new use permit for a physical therapy office and potentially another item.

9. GOOD OF THE ORDER
Vice Chairperson Mclleland reported Kennedy Park would hold an Easter Egg Hunt on March 23, 2024 and she encouraged families to participate.

Chairperson Lew reported a Bicycle and Pedestrian Advisory Committee (BPAC) meeting had been held on March 19, 2024 with an update on the Quarry Lakes Project, which would be built in phases. She briefed the Planning Commission on the details of the project, status of each phase and project costs. She supported the mitigation of Alameda Creek and cleaning it up for people to enjoy and walk and added the BPAC met once a quarter on the third Tuesday of the month, with the next meeting tentatively scheduled for April 16, 2024.

Commissioner Sandhu reported the Union City Parks and Recreation Commission would hold an all-day Cornhole Tournament on April 13, 2024.

Ms. Campbell reported on proposed protocol changes related to how staff currently reached out to Planning Commissioners prior to scheduled Planning Commission meetings to gauge attendance. Commissioners were now asked to contact staff to inform staff of a Commissioner’s attendance for a meeting, which would be better for planning and for the alternate Commissioners, and the preferred form of communication was via email either to herself, Administrative Assistant Tracey Barragan or to Planning Manager Derek Farmer.

City Council/RSA Agenda 215 Tuesday, April 9, 2024
Planning Commission Minutes 6 March 21, 2024

10. ADJOURNMENT: 8:13 P.M.

City Council/RSA Agenda 216 Tuesday, April 9, 2024
ATTACHMENT 7
PLANNING COMMISSION RESOLUTION NUMBER #04-24

RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF UNION CITY

RECOMMENDING THAT THE CITY COUNCIL ADOPT AN ADDENDUM TO

THE GENERAL PLAN ENVIRONMENTAL IMPACT REPORT FOR THE
AMENDMENTS TO THE 2040 GENERAL PLAN LAND USE DIAGRAM AND

OFFICIAL ZONING MAP
WHEREAS, by Resolution No. 5549-19, duly adopted by the City Council of Union City on December 10, 2019, there was adopted documents consisting of text, maps, and charts, entitled Union City 2040 General Plan, dated December 10, 2019, which included the reports in support thereof as the General Plan of Union City; and WHEREAS, pursuant to the California Environmental Quality Act (CEQA) and the CEQA Guidelines, an Environmental Impact Report (EIR) (State Clearinghouse No. 2018102057) for the 2040 General Plan was prepared and certified by the City in November 2019; and
WHEREAS, amendments to the 2040 General Plan Land Use Diagram (AG-24- 001) are proposed to better align property lines with zoning and general plan designation boundaries, to better align with historic use of the property, or to address a parcel that has an incorrect designation; and
WHEREAS, amendments to the Official Zoning Map (A-24-001) are proposed for consistency with the 2040 General Plan, which is required by State law, and WHEREAS, Section 15164 of the CEQA Guidelines provides that an addendum to a previously adopted environmental impact report or mitigated negative declaration may be prepared if only minor technical changes or additions to the project are necessary or none of the conditions described in CEQA Guidelines Section 15162 calling for the preparation of a subsequent environmental impact report or negative declaration have occurred; and
WHEREAS, the City has prepared an Addendum to the 2040 General Plan EIR for the amendments to the 2040 General Plan Land Use Diagram and Official Zoning Map (“Addendum”), which determined that none of the conditions described in CEQA Guidelines section 15162 will occur; and
WHEREAS, the Addendum was posted to the City’s website and referenced in the public notice for the March 21, 2024 Planning Commission public hearing; and WHEREAS, a staff report, dated March 21, 2024 and incorporated herein by reference, described and analyzed the amendments to the 2040 General Plan Land Use Diagram and Official Zoning Map and Addendum for the Planning Commission; and City Council/RSA Agenda 217 Tuesday, April 9, 2024
Planning Commission Resolution No. #04-24
AG-24-001 & A-24-001

WHEREAS, pursuant to Section 65854 of the Government Code, the Planning Commission reviewed the staff report, and the Addendum at a noticed public hearing on March 21, 2024 at which time all interested parties had the opportunity to be heard; and WHEREAS, the Addendum reflects the City’s independent judgment and analysis on the potential for environmental impacts; and
WHEREAS, none of the conditions requiring preparation of a subsequent EIR or negative declaration have occurred, and that the changes that are part of the amendments to the 2040 General Plan Land Use Diagram and Official Zoning Map identified in the Addendum would not result in any significant impacts not considered under the original 2040 General Plan EIR; and
WHEREAS, the Addendum is available for review on the City’s website at https://unioncity.novusagenda.com/agendapublic/CoverSheet.aspx?ItemID=4198&Meeti ngID=1746, and at the Economic and Community Development Department at City Hall during normal business hours. The location and custodian of the Addendum and other documents that constitute the record of proceedings for the amendments to the 2040 General Plan Land Use Diagram and Official Zoning Map is the City of Union City Economic and Community Development Department, 34009 Alvarado-Niles Road, Union City, CA 94587.

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 the City Council adopt an Addendum to the 2040 General Plan Environmental Impact Report in compliance with CEQA and the CEQA Guidelines and does hereby find as follows:

A. The decision maker has reviewed and considered the Addendum to the 2040 General Plan Final Environmental Impact Report and finds that none of the conditions requiring preparation of a subsequent EIR or negative declaration have occurred, and that the changes that are part of the project would not result in any significant impacts not considered under the original EIR.

B. The Addendum to the 2040 General Plan Final Environmental Impact Report is the appropriate CEQA document for the project and has been prepared as required by law and the document reflects the independent judgement and analysis of the City of Union City, which has exercised overall control and direction of its preparation.

City Council/RSA Agenda 218 Tuesday, April 9, 2024
Planning Commission Resolution No. #04-24
AG-24-001 & A-24-001

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 March 21, 2024 by the following vote:

AYES: (Guio, Lew, Mclelland, Romero, Sandhu)
NOTES: 0
ABSTAINED: 0
ABSENT: (Finnerty, Gupta Garg)
MOVED: Commissioner Guio
SECONDED: Commissioner Mclelland

APPROVED
__________________________

JO ANN LEW, CHAIRPERSON
ATTEST:
________________________________

CARMELA CAMPBELL, SECRETARY
City Council/RSA Agenda 219 Tuesday, April 9, 2024
ATTACHMENT 8
PLANNING COMMISSION RESOLUTION NUMBER #5-24

RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF UNION CITY

RECOMMENDING TO THE CITY COUNCIL OF THE APPROVAL OF GENERAL CITY OF UNION CITY PLAN AMENDMENT AG-24-001 AND ZONING MAP AMENDMENTS A-24-001
WHEREAS, by Resolution No. 5549-19, duly adopted by the City Council of Union City on December 10, 2019, there were adopted documents consisting of text, maps, and charts, entitled Union City 2040 General Plan, dated December 10, 2019, which included the reports in support thereof as the General Plan of Union City; and
WHEREAS, staff initiated amendments to the General Plan Land Use Diagram (AG-24- 001) and Official Zoning Map (A-24-001) for multiple sites, both for consistency with the 2040 General Plan and to better align with existing parcel lines, building locations, and historic and current land uses or to address a parcel that has an incorrect designation (“Project”); and WHEREAS, the proposed General Plan amendments to the General Plan Land Use Diagram are shown in Exhibit A, attached hereto and made part hereof; and WHEREAS, the proposed amendments to the Official Zoning Map are shown in Exhibit A, attached hereto and made a part hereof; and

WHEREAS, pursuant to Section 65854 of the Government Code, the Planning Commission held a duly noticed public hearing on the proposed General Plan and Zoning Map amendments and EIR Addendum on March 21, 2024, at which time all interested parties had the opportunity to be heard; and
WHEREAS, the Planning Commission considered a staff report dated March 21, 2024 (including background reports), incorporated herein by reference, the Desk Item, and all written and oral testimony before taking action on the amendments; and WHEREAS, the Planning Commission adopted Resolution 4-24, dated March 21, 2024, and incorporated herein by reference, adopting an Addendum to the 2040 General Plan Environmental Impact Report for the Project; and
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 to the City Council to approve General Plan Amendment AG-24-001 as contained in Exhibit A and does hereby find as follows:

1. Pursuant to Government Code Section 65358(a), that the proposed General Plan Amendment is in the public interest because it will better align general plan designations City Council/RSA Agenda 220 Tuesday, April 9, 2024
Planning Commission Resolution No. #5-24
AG-24-001 and A-24-001

with property lines and locations of buildings and will correct an existing parcel’s incorrect land use designation.

BE IT FURTHER RESOLVED that the Planning Commission of the City of Union City hereby recommends to the City Council to approve the amendments to the Official Zoning Map A-24-001 as contained in Exhibit B and does hereby find as follows:

1. The proposed Municipal Code Amendments are consistent with the General Plan,

2. The proposed Municipal Code Amendments are necessary and desirable to achieve the purposes of Title 18.

City Council/RSA Agenda 221 Tuesday, April 9, 2024
Planning Commission Resolution No. #5-24
AG-24-001 and A-24-001

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 March 21, 2024 by the following vote:

AYES: (Guio, Lew, Mclelland, Romero, Sandhu)
NOTES: 0
ABSTAINED: 0
ABSENT: (Finnerty, Gupta Garg)
MOVED: Commissioner Guio
SECONDED: Commissioner Mclelland

APPROVED
__________________________

JO ANN LEW, CHAIRPERSON
ATTEST:
________________________________

CARMELA CAMPBELL, SECRETARY
City Council/RSA Agenda 222 Tuesday, April 9, 2024
Item 6.a
Amendments to General Plan Diagram (AG24-001) and Official Zoning Map (A-24-001) City Council/RSA Agenda 223 Tuesday, April 9, 2024
2 GP and Zoning Amendments
• 19 total parcels affected• Exhibits - Areas A1-A4 and B1-B4 • Three primary reasons for changes:
 Align with current and historic property uses Ensure GP designation does not split a building Ensure GP designation follows a property line City Council/RSA Agenda 224 Tuesday, April 9, 2024
3 Area A1 and B1
City Council/RSA Agenda 225 Tuesday, April 9, 2024
4 Existing GP/Zoning Proposed GP/Zoning
Area A1
City Council/RSA Agenda 226 Tuesday, April 9, 2024
5 Area A3 / B3 and A4 / B4
City Council/RSA Agenda 227 Tuesday, April 9, 2024
6 Existing GP/Zoning Proposed GP/Zoning
Area A3
City Council/RSA Agenda 228 Tuesday, April 9, 2024
7 Existing GP/Zoning Proposed GP/Zoning
Area A4
City Council/RSA Agenda 229 Tuesday, April 9, 2024
8 Zoning Map Amendments
• 138 total parcels affected• Changes to Areas B5-B12 are for consistency with existing 2040 GP and Housing Element as required by State law
• Also updates Map legend
City Council/RSA Agenda 230 Tuesday, April 9, 2024
9 Proposed Zoning
Area B5
City Council/RSA Agenda 231 Tuesday, April 9, 2024
10 Proposed Zoning
Area B10
City Council/RSA Agenda 232 Tuesday, April 9, 2024
11 Proposed Zoning
Area B12
City Council/RSA Agenda 233 Tuesday, April 9, 2024
12 EIR Addendum• Evaluates potential environmental impacts associated with proposed amendments
• Compares to those evaluated in General Plan EIR• Addendum found no substantial changes in circumstances have occurred, nor has any new information of substantial importance been identified requiring new analysis or verification, and no new or more severe impacts would occur beyond what was previously analyzed in the certified General Plan EIR City Council/RSA Agenda 234 Tuesday, April 9, 2024
13 Outreach Process
Mailed notifications to all parcels affectedPublic hearing notice in TriCity VoiceNotification of California Native American tribes per SB 18 (no responses received) City Council/RSA Agenda 235 Tuesday, April 9, 2024
14 PC Recommendation
• PC recommended approval on a 5-0 vote at their March 21, 2024 meeting
• A Desk Item was prepared in response to comments from PC  Resulted in a few minor updates to the Exhibit C - CEQA Addendum and Exhibit A – Area A2
 Updated exhibits included in CC packet
City Council/RSA Agenda 236 Tuesday, April 9, 2024
15 Recommendation
Consistent with the Planning Commission’s recommendation, it is recommended that the City Council adopt two resolutions: adopting an Addendum to the 2040 General Plan EIR AND amending the General Plan Land Use Diagram (AG-24-001) and Introduce an Ordinance Amending the Official Union City Zoning Map (A-24-001) City Council/RSA Agenda 237 Tuesday, April 9, 2024
Agenda Item
DATE: 4/9/2024
TO: HONORABLE MAYOR AND CITY COUNCIL
FROM: KRISTOPHER J. KOKOTAYLO, CITYATTORNEY
SUBJECT: WAIVE FURTHER READING AND ADOPT AN ORDINANCE AMENDING UNION CITY MUNICIPAL CODE CHAPTER 5.42, “TOBACCO
RETAILERS” AND/OR PROVIDE FURTHER DIRECTION
The City Council previously held a number of meetings to consider potential amendments to the Union City Municipal Code to amend Chapter 5.42, “Tobacco Retailers” (the “Tobacco Retailers Ordinance”).

The City Council most recently voted 5-0 to introduce an ordinance on March 26, 2024. Staff and the City Attorney’s Office now recommends that the City Council waive further reading and adopt the proposed ordinance amending the Tobacco Retailers Ordinance.

STRATEGIC PLAN ALIGNMENT
There are no Strategic Plan goals associated with this agenda item.

BACKGROUND
The City Council provided direction and considered amendments to the Tobacco Retailers Ordinance on the following dates: January 9, January 23, February 13, and February 27.

Ultimately, the City Council voted 5-0 at its March 26, 2024 City Council meeting to introduce an ordinance amending the Tobacco Retailers Ordinance. The amendment includes the following provisions:
1) Prohibit the sale of single-use vape products.
2) Prohibit the sale of flavored tobacco products, consistent with state law. 3) Prohibit the sale of tobacco products in pharmacies. 4) Amend the minimum single cigar price from $5 to $8 with possible annual increases by the Consumer Price Index (CPI).
5) Amend the minimum pack size for cigars (unless sold at the single cigar price identified above) to a minimum pack of 10 with a $15 minimum.
6) Prohibit the issuance of tobacco retail licenses within 500 feet of each other.

City Council/RSA Agenda 238 Tuesday, April 9, 2024
7) Allow the transfer of a tobacco retailers license with the transfer of a business and revise the definition of “arm’s length transaction” to allow for family transfers and other transfers that are outside of the open market. 8) Increase the amount for fines related to violations. 9) Prohibit the redemption and use of coupons and discounts by tobacco retailers. 10) Provide an enforcement date of June 1, 2024.

The City Councilalso previously referred a number of additional items to the Legislation and Policy Committee for consideration.

DISCUSSION
The proposed ordinance amending the Tobacco Retailers Ordinance is included with this report and is unchanged from the ordinance that the City Council introduced at the March 26, 2024 City Council meeting.

The ordinance will become effective 30 days after adoption and enforcement will begin on June 1, 2024.

The City Councilalso indicated that it may want to obtain a future update regarding program implementation and can provide further direction as it deems necessary.

FISCAL IMPACT
There is no direct fiscal impact from adopting this ordinance.

RECOMMENDATION
Staff and the City Attorney’s Office recommend that the City Council waive further reading and adopt the proposed ordinance amending Union City Municipal Code Chapter 5.42, “Tobacco Retailers” and/or provide further direction.

Prepared by:

Juliet Vaughn, Attorney
Submitted by:

Kristopher J. Kokotaylo, City Attorney
ATTACHMENTS:

Description Type
TRLOrdinance Ordinance
TRLOrdinance Exhibit A Exhibit
Desk Item7.a. - Written Public Comment Attachment
Item7.a. Powerpoint Attachment
City Council/RSA Agenda 239 Tuesday, April 9, 2024
ORDINANCE NO. ______

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
UNION CITY AMENDING CHAPTER 5.42, “TOBACCO RETAILERS”, 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, approximately 480,000 people die in the United States from smoking-related diseases and exposure to secondhand smoke every year, making tobacco use the nation’s leading cause of preventable death;
1 and
WHEREAS, the World Health Organization (WHO) estimates that tobacco kills 98 million people and causes over 1.4 trillion dollars in economic damage each year; 2 and
WHEREAS, 5.6 million of today’s Americans who are younger than 18 are projected to die prematurely from a smoking-related illness;
3 and
WHEREAS, tobacco use is the number one cause of preventable death in California4and continues to be an urgent public health issue; and
WHEREAS, tobacco use among priority populations in California contributes to health disparities and creates significant barriers to health equity; 5 and

1 U.S. Department of Health and Human Services. The Health Consequences of Smoking: 50 Years of Progress. A Report of the Surgeon General. Atlanta, GA: U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, National Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health. 2014. Available at:
https://www.ncbi.nlm.nih.gov/books/NBK179276/pdf/Bookshelf_NBK179276.pdf 2 World Health Organization. WHO Report on the Global Tobacco Epidemic, 2019: Offer Help to Quit Tobacco Use. 2019. Available at: https://apps.who.int/iris/handle/10665/326043. 3 Supra, Note 1.
4 California Department of Public Health, California Tobacco Control Program. The #1 Preventable Cause of Death.
http://tobaccofreeca.com/other-tobacco-products/the-number-1-preventable-cause-of-death.

Accessed May 12, 2020.
5 California Tobacco Control Program. California Tobacco Facts and Figures 2019. Sacramento, CA: California Department of Public Health. 2019.

City Council/RSA Agenda 240 Tuesday, April 9, 2024
WHEREAS, despite the State’s efforts to limit youth access to tobacco, youth are still able to access tobacco products in California;
6 and
WHEREAS, the federal Family Smoking Prevention and Tobacco Control Act, enacted in 2009, prohibited candy and fruit flavored cigarettes7largely because these flavored products are marketed toward youth and young adults,8and younger smokers and more likely than older smokers to have tried these products;
9 and
WHEREAS, in a 2019 observation survey of 36 tobacco retailers within Union City conducts by the Alameda County Public Health Department, 86% of stores surveyed sold flavored tobacco products; and

6 California Tobacco Control Program. California Tobacco Facts and Figures 2016. Sacramento, CA: California Department of Public Health. 2016. California Tobacco Control Program. California Tobacco Facts and Figures 2019. Sacramento, CA: California Department of Public Health. 2019.

California Student Tobacco Survey, 2017-18. San Diego, California: Center for Research and Intervention in Tobacco Control (CRITC), University of California, San Diego; April 2019; Centers for Disease Control and Prevention. Best Practices for Comprehensive Tobacco Control Programs — 2014. U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, National Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health. 2014; Centers for Disease Control and Prevention. Youth Risk Behavior Surveillance — United States, 2019. California: Tobacco Use. 2019. Available at: https://nccd.cdc.gov/youthonline/app/Results.aspx?LID=CA. Accessed August 31, 2023; Lin C, Baiocchi M, Halpern-Felsher B. Longitudinal trends in e-cigarette devices used by Californian youth, 2014–2018. Addict Behav. 2020;108:106459. doi: 10.1016/j.addbeh.2020.106459. 7 21 U.S.C. § 387g(a)(1)(A).
8 U.S. Department of Health and Human Services. Preventing Tobacco Use Among Youth and Young Adults: A Report of the Surgeon General. Atlanta, GA: U.S. Department of Health and Human Services, Centers for Disease Control and Pre- vention, National Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health. 2012. Available at:
https://www.ncbi.nlm.nih.gov/books/NBK99237/pdf/Bookshelf_NBK99237.pdf.; Villanti AC, Collins LK, Niaura RS, Gagosian SY, Abrams DB. Menthol cigarettes and the public health standard: a systematic review. BMC Public Health. 2017;17(1):983. doi: 10.1186/s12889-017-4987-z; Institute of Medicine.

Public Health Implications of Raising the Minimum Age of Legal Access to Tobacco Products.

Washington, DC: The National Academies Press. 2015. Available at: t:
https://www.nap.edu/catalog/18997/public-health-im-plications-of-raising-the-minimum-age-of-legalaccess-to-tobacco-products. 9 U.S. Department of Health and Human Services. Preventing Tobacco Use Among Youth and Young Adults: A Report of the Surgeon General. Atlanta, GA: U.S. Department of Health and Human Services, Centers for Disease Control and Pre- vention, National Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health. 2012. Available at:
https://www.ncbi.nlm.nih.gov/books/NBK99237/pdf/Bookshelf_NBK99237.pdf.

City Council/RSA Agenda 241 Tuesday, April 9, 2024
WHEREAS, according to the California Department of Public Health, flavored tobacco products are used by the majority of youth and young adult tobacco users (86.4% and 57.7%) in California;
10 and
WHEREAS, mentholated and flavored products have been shown to be “starter” products for youth who begin using tobacco11 and that these products help establish tobacco habits that can lead to long-term addiction;
12 and
WHEREAS, research indicates that the FDA ban in 2009 on all flavored cigarette products (except menthol) led to a 6% decrease in youth tobacco use and a 17% decrease in the likelihood of a youth becoming a cigarette smoker;
13 and
WHEREAS, studies indicate that laws prohibiting the sale of flavored tobacco products lead to decreases in youth tobacco use;
14 and
WHEREAS, in 2020, California passed SB 793, which amended California Health and Safety Code Section 104559.5 to prohibit the sale of most types of flavored tobacco products, including flavored electronic cigarettes, non-premium flavored cigars, as wells as flavored enhancers;15 and
WHEREAS, in 2022, California voters passed Proposition 31, which upheld SB 793;16 and

10 California Tobacco Control Program. California Tobacco Facts and Figures 2019. Sacramento, CA: California Department of Public Health. 2019.
11 U.S. Department of Health and Human Services. Preventing Tobacco Use Among Youth and Young Adults: A Report of the Surgeon General. Atlanta, GA: U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, National Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health. 2012. Available at:
https://www.ncbi.nlm.nih.gov/books/NBK99237/pdf/Bookshelf_NBK99237.pdf. 12 Id.
13 Courtemanche CJ, Palmer MK, Pesko MF. Influence of the Flavored Cigarette Ban on Adolescent Tobacco Use. Am J Prev Med. 2017;52(5):e139-e146. doi: 10.1016/j.amepre.2016.11.019.

Farley SM, Johns M. New York City flavoured tobacco product sales ban evaluation. Tob Control. 2017;26(1):78-84. doi: 10.1136/tobaccocontrol-2015-052418; Pearlman DN, Arnold JA, Guardino GA, Boles Welsh E. Advancing Tobacco Control Through Point of Sale Policies, Providence, Rhode Island. Prev Chronic Dis. 2019;16:E129. doi: 10.5888/pcd16.180614.
15 California Health and Safety Code (HSC) Section 104559.5. 16 Statement of the Vote Summary Pages. November 8, 2022, General Election. State of California. https://elections.cdn.sos.ca.gov/sov/2022-general/sov/06-summary.pdf.

City Council/RSA Agenda 242 Tuesday, April 9, 2024
WHEREAS, 75.64 percent of voters in Alameda County voted yes to uphold SB 793;17 and
WHEREAS, California Health and Safety Code Section 104559.5 still allows the sale of flavored loose-leaf pipe tobacco and premium cigars with a wholesale price of twelve dollars ($12.00 or more), as well as flavored shisha/hookah tobacco if sold in licensed stores that only allow people twenty-one (21) years of age on the premises at any time; 18 and
WHEREAS, the health effects of non-cigarette tobacco products such as cigars, cigarillos, smokeless tobacco, and shisha are substantial as demonstrated by research that shows that noncigarette tobacco products have addictive levels of nicotine, harmful toxins, and dangerous carcinogens;
19 and
WHEREAS, unlike cigarette use that has steadily declined among youth, the U.S. has seen a surge in teen e-cigarette use, and youth e-cigarette use remains a serious public health concern; 20 and
WHEREAS, research has consistently shown that increases in cigarettes prices will result in less smoking across various sociodemographic populations; 21 and
WHEREAS, a systematic review by the U.S. Community Preventive Services Task Force found that a 20% price increase would reduce demand for cigarettes by approximately 10.4%, the prevalence of adult tobacco use by 3.6%, and initiation of tobacco use by young people by 8.6%; 22 and
WHEREAS, youth are particularly responsive to changes in tobacco prices and evidence suggests that tobacco companies deliberately target youth with price reductions;23 and

17 Official Election Site of Alameda County. General Election (Certified Final Results) – November 08, 2022. Last Updated: Thursday, December 08, 2022. https://www.acgov.org/rovresults/248/. 18 California Health and Safety Code (HSC) Section 104559.5. 19 Hoffmann D, Hoffmann I. Chapter 3: Chemistry and Toxicology. In: Smoking and Tobacco Control Monograph No. 9: Cigars: Health Effects and Trends. National Cancer Institute; 1998. 20 Park-Lee E, Ren C, Cooper M, Cornelius M, Jamal A, Cullen KA. Tobacco Product Use Among Middle and High School Students — United States, 2022. MMWR Morb Mortal Wkly Rep 2022;71:1429– 1435. National Youth Tobacco Survey (NYTS).
https://www.cdc.gov/mmwr/volumes/71/wr/mm7145a1.htm?s_cid=mm7145a1_w. 21 Yao T, Ong MK, Max W, et al. Responsiveness to cigarette prices by different racial/ethnic groups of US adults. Tob Control. 2018;27(3):301-309. doi: 10.1136/tobaccocontrol-2016-053434. 22 Community Preventive Services Task Force. Reducing Tobacco Use and Secondhand Smoke Exposure: Interventions to Increase the Unit Price for Tobacco Products. 2012. 23 U.S. Department of Health and Human Services. Preventing Tobacco Use Among Youth and Young Adults: A Report of the Surgeon General. Atlanta, GA: U.S. Department of Health and Human City Council/RSA Agenda 243 Tuesday, April 9, 2024
WHEREAS, although federal and state law ban the sale of individual cigarettes, neither federal nor California state laws restrict the sale of individual little cigars and cigars;24 and WHEREAS, neither federal nor California law set a minimum price for tobacco products; and
WHEREAS, minimum price markups and related laws in other states have been shown to be effective at increasing the price of cigarettes but may remain vulnerable to price manipulation by the tobacco industry without attention to coupons and discounts; 25 and
WHEREAS, by selling tobacco products, pharmacies reinforce positive social perceptions of smoking, convey tacit approval of tobacco use, and send a message that it is not so dangerous to smoke;
26 and
WHEREAS, the City Council of the City of Union City has a substantial interest in protecting youth and underserved populations from the harms of tobacco use; and WHEREAS, the City Council of the City of Union City finds that a local licensing system for tobacco retailers is appropriate to ensure that retailers comply with tobacco control laws and business standards of the City of Union City in order to protect the health, safety, and welfare of its residents.

NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF UNION CITY DOES HEREBY ORDAIN AS FOLLOWS:

SECTION 1. Recitals.

The above recitals (“Recitals”) are true and correct and made a part of this Ordinance.

SECTION 2. CEQA. Approval of the amendments is exempt from further environmental review under the general rule in California Environmental Quality Act (CEQA) Guidelines Section 15061(b)(3) that CEQA only applies to projects that have the potential for causing a significant effect on the environment. As a series of text amendments and additions, it can be

Services, Centers for Disease Control and Prevention, National Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health. 2012. Available at:
https://www.ncbi.nlm.nih.gov/books/NBK99237/pdf/Bookshelf_NBK99237.pdf 24 21 C.F.R. § 1140.16(b); Cal. Penal Code § 308.3(a).
25 Huang J, Chriqui JF, DeLong H, Mirza M, Diaz MC, Chaloupka FJ. Do state minimum markup/price laws work? Evidence from retail scanner data and TUS-CPS. Tob Control. 2016;25(Suppl 1):i52-i59. doi: 10.1136/tobaccocon- trol-2016-053093.
26 Hudmon KS, Fenlon CM, Corelli RL, Prokhorov AV, Schroeder SA. Tobacco sales in pharmacies:
time to quit. Tob Control. 2006;15(1):35-38. doi: 10.1136/tc.2005.012278.

City Council/RSA Agenda 244 Tuesday, April 9, 2024
seen with certainty that there is no possibility that the ordinance will have a significant effect on the environment.

SECTION 3. Municipal Code Amendment Chapter 5.42.

Section 5.42 “Tobacco Retailers,” of the Union City Municipal Code is hereby amended to read as displayed in Exhibit A, incorporated and made a part of this Ordinance.

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 thirty (30) days after its adoption and shall not be enforced until June 1, 2024.

City Council/RSA Agenda 245 Tuesday, April 9, 2024

EXHIBIT A

5.42.010 Definitions.

The following words and phrases, whenever used in this chapter, shall have the meanings defined in this section unless the context clearly requires otherwise:
“Administrator” means the Administrative ServicesFinance Director or designee. “Arm’s length transaction” means a sale or transfer, in good faith and for valuable consideration that reflects the fair market value in the open market between two informed and willing parties, as determined by the parties, neither of which is under any compulsion to participate in the transaction. A sale or transfer between relatives, related companies or partners, or a sale for which a significant purpose is avoiding the effect of the violations of this chapter is not an arm’s length transaction.
“Coupon” means any voucher, rebate, card, paper, note, form, statement, ticket, image, or other issue, whether in paper, digital, or other form, used for commercial purposes to obtain an article, product, service, or accommodation without charge or at a discounted price.means anything that can be exchanged for or used to acquire an electronic cigarette, electronic cigarette paraphernalia, electronic cigarette or tobacco product, such as a printed piece of paper, voucher, ticket, rebate, rebate offer, check, credit, token, code, password, or anything labeled “coupon” or “coupon offer.”
“Department” means the Administrative ServicesFinance Department. “Drug paraphernalia” shall have the definition set forth in California Health and Safety Code Section 11014.5, as that section may be amended from time to time. “Electronic smoking device” means any device that may be used to deliver any aerosolized or vaporized substance to the person inhaling from the device, including, but not limited to, an e-cigarette, e-cigar, e-pipe, vape pen, or e-hookah. Electronic smoking device includes any component, part, or accessory of the device, and also includes any substance that may be aerosolized or vaporized by such device, whether or not the substance contains nicotine.

Electronic smoking device does not include drugs, devices, or combination products authorized for sale by the U.S. Food and Drug Administration, as those terms are defined in the Federal Food, Drug, and Cosmetic Act. “Electronic cigarette” means “a device that can provide an inhalable dose of nicotine by delivering a vaporized solution” as defined in California Health and Safety Code Section 119405(b), as that section may be amended from time to time, or any device designed to vaporize a liquid solution that releases flavored vapor. “Electronic cigarette paraphernalia” means any device designed to provide an inhalable dose of nicotine or a flavored liquid solution through vaporization, nicotine-based or flavored solution-based cartridges for use with electronic cigarettes, and any other item designed for the vaporization, preparation, storing, or consumption of electronic cigarette products. “Electronic cigarette product” means any substance containing nicotine or a flavored liquid solution for vaporization, including any product or formulation of matter containing biologically active amounts of nicotine that is manufactured, sold, offered for sale, or otherwise distributed with the expectation that the product or matter will be introduced into the human body, but does not include any cessation product specifically approved by the United States Food and Drug Administration for use in treating nicotine or tobacco dependence. “Flavored Tobacco Product” means any tobacco product that imparts:

1. a taste or odor distinguishable by an ordinary consumer, other than the taste or odor of tobacco, either prior to or during the consumption of such tobacco product, City Council/RSA Agenda 246 Tuesday, April 9, 2024
including but not limited to tastes or odors relating to any fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, mint, wintergreen, menthol, herb, or spice; or

2. a heating, cooling, or numbing sensation distinguishable by an ordinary consumer during the consumption of such tobacco product.
“License” means a tobacco retailer’s license as defined below. “Licensee” means a tobacco retailer with a tobacco retailer’s license. “Manufacturer” means any person, including any repacker or relabeler, who manufactures, fabricates, assembles, processes, or labels a tobacco product; or imports a finished tobacco product for sale or distribution into the United States. “Nominal cost” means the cost of any item that is transferred from one person to another for less than the total of: (1) twenty-five percent of the full retail value of the item exclusive of taxes and fees; plus (2) all taxes and fees previously paid and all taxes and fees still due on the item at the time of transfer.
“Nonsale distribution” means to give, within the jurisdictional limits of the City, a tobacco product or coupon at no cost or at nominal cost to a person who is not a tobacco seller. “Person” means any natural person, partnership, cooperative association, corporation, personal representative, receiver, trustee, assignee, or any other legal entity. “Pharmacy” means any retail establishment in which the profession of pharmacy is practiced by a pharmacist licensed by the State of California in accordance with the Business and Professions Code and where prescription pharmaceuticals are offered for sale, regardless of whether the retail establishment sells other retail goods in addition to prescription pharmaceuticals.
“Proprietor” means a person with an ownership or managerial interest in a business. An ownership interest shall be deemed to exist when a person has a ten percent or greater interest in the stock, assets, or income of a business other than the sole interest of security for debt. A managerial interest shall be deemed to exist when a person can or does have or share ultimate control over the day-to-day operations of a business.
“Public place” means any place within the City, public or private, that is open to the general public regardless of any fee or age requirement, including, for example, bars, restaurants, clubs, stores, stadiums, parks, playgrounds, taxis, and buses. “Retailer” means tobacco retailer as defined herein.
“Self-service display” means the open display or storage of electronic cigarettes, electronic cigarette products, electronic cigarette paraphernalia, tobacco products or tobacco paraphernalia in a manner that is physically accessible in any way to the general public without the assistance of the retailer or employee of the retailer and a direct person-to-person transfer between the purchaser and the retailer or employee of the retailer. A vending machine is a form of self-service display.
“Single-use electronic smoking product” means an electronic smoking device that is not refillable or rechargeable and is typically discarded once its contents have been used. It includes without limitation:

1. Any electronic device or delivery system that can be used to deliver an inhaled dose of nicotine, flavorings, chemicals, or other substances in aerosolized or vaporized form for human consumption, including but not limited to an electronic cigarette, cigar, pipe, vape pen, or hookah.

2. Any component, part, or accessory of such a device or delivery system that is used during its operation.

3. Any flavored or unflavored liquid or substance, whether sold separately or sold in combination with any such device or delivery system, that could be used to deliver tobacco products, nicotine, or other substances in aerosolized or vaporized form.

4. Any product for use in such an electronic device or delivery system whether it contains nicotine or tobacco or is derived from nicotine or tobacco. “Tobacco” means leaves of the tobacco plant dried and prepared for smoking or ingestion.
“Tobacco paraphernalia” means cigarette papers or wrappers, pipes, holders of smoking materials of all types, cigarette rolling machines, and any other item designed for the smoking, preparation, storing, or consumption of tobacco products. “Tobacco product” means tobacco and any substance containing tobacco, including, but not limited to, cigarettes, cigars, cigarillos, pipe tobacco, hookah tobacco, snuff, chewing City Council/RSA Agenda 247 Tuesday, April 9, 2024 tobacco, dipping tobacco, snus, bidis, or any other preparation of tobacco; and any product or City Council/RSA Agenda 248 Tuesday, April 9, 2024
formulation of matter containing biologically active amounts of nicotine that is manufactured, sold, offered for sale, or otherwise distributed with the expectation that the product or matter will be introduced into the human body, but does not include any cessation product specifically approved by the United States Food and Drug Administration for use in treating nicotine or tobacco dependence.

1. any product containing, made of, or derived from tobacco or nicotine that is intended for human consumption or is likely to be consumed, whether inhaled, absorbed, or ingested by any other means, including but not limited to, a cigarette, a cigar, pipe tobacco, chewing tobacco, snuff, or snus;

2. any electronic smoking device and any substances that may be aerosolized or vaporized by such device, whether or not the substance contains nicotine; or

3. any component, part, or accessory of (1) or (2), whether or not any of these contains tobacco or nicotine, including but not limited to filters, rolling papers, blunt or hemp wraps, hookahs, mouthpieces, and pipes.
“Tobacco product" does not mean drugs, devices, or combination products authorized for sale by the U.S. Food and Drug Administration, as those terms are defined in the Federal Food, Drug, and Cosmetic Act.
“Tobacco retailer” means any person who sells, offers for sale, or does or offers to exchange for any form of consideration tobacco products. This definition is without regard to the quantity of tobacco products sold, offered for sale, exchanged, or offered for exchange., electronic cigarettes, electronic cigarette products, electronic cigarette paraphernalia, tobacco products or tobacco paraphernalia.
“Tobacco retailing” shall mean means engaging in the activities of a tobacco retailer. the doing of any of these things. This definition is without regard to the quantity of electronic cigarettes, electronic cigarette products, electronic cigarette paraphernalia, tobacco products or tobacco paraphernalia sold, offered for sale, exchanged, or offered for exchange. “Tobacco retailer’s license” means the license issued pursuant to Section 5.42.050this chapter that authorizes electronic-cigarette or tobacco retailing at a certain location and by a certain tobacco retailer.

5.42.020 Requirements and prohibitions.

A. Tobacco Retailer License Required. It is unlawful for any person to act as a tobacco retailer in the City without first obtaining and maintaining a valid tobacco retailer’s license pursuant to this chapter for each location at which that activity is to occur. Tobacco retailing without a valid tobacco retailer’s license is a nuisance as a matter of law.

B. Lawful Business Operation. In the course of tobacco retailing or in the operation of the business or maintenance of the location for which a license issued, it shall be a violation of this chapter for a licensee, or any of the licensee’s agents or employees, to violate any local, State, or Federal law applicable to electronic cigarettes, electronic cigarette products, electronic cigarette paraphernalia, tobacco products, tobacco paraphernalia, or tobacco retailingthe sale of tobacco products.

C. Display of License. Each tobacco retailer license shall be prominently displayed in a publicly visible location at the licensed location.

D. Positive Identification Required. No person engaged in tobacco retailing shall sell or transfer a n electronic cigarette, electronic cigarette product, electronic cigarette paraphernalia, tobacco product or tobacco paraphernalia to another person who appears to be under the age of City Council/RSA Agenda 249 Tuesday, April 9, 2024
twenty-seven years without first examining the identification of the recipient to confirm that the recipient is at least the minimum age under State law to purchase and possess the electronic cigarette, electronic cigarette product, electronic cigarette paraphernalia, tobacco product or tobacco paraphernalia.

E. Minimum Age for Persons Selling Tobacco. Persons employed by a tobacco retailer under this chapter that sell tobacco products must be at least the minimum legal sales age established by state law. No person who is younger than the minimum age established by State law for the purchase or possession of electronic cigarette products or tobacco products shall engage in tobacco retailing.

F. Self-Service Displays Prohibited. Tobacco retailing by means of a self-service display is prohibited.

G. False and Misleading Advertising Prohibited. A tobacco retailer or proprietor without a valid tobacco retailer license, including, for example, a person whose license has been revoked:

1. Shall keep all electronic cigarettes, electronic cigarette products, electronic cigarette paraphernalia, tobacco products and tobacco paraphernalia out of public view. The public display of electronic cigarettes, electronic cigarette products, electronic cigarette paraphernalia, tobacco products or tobacco paraphernalia in violation of this provision shall constitute tobacco retailing without a license; and

2. Shall not display any advertisement relating to electronic cigarettes, electronic cigarette products, electronic cigarette paraphernalia, tobacco products or tobacco paraphernalia that promotes the sale or distribution of such products from the tobacco retailer’s location or that could lead a reasonable consumer to believe that such products can be obtained at that location.

H. Signage Violations. It is a violation of this chapter for any licensee to violate any local, State, or Federal law regulating exterior, storefront, window, or door signage.

I. Drug Paraphernalia. It is a violation of this chapter for any licensee or any of the licensee’s agents or employees, to violate any local, State, or Federal law regulating controlled substances or drug paraphernalia.

J. Nonsale Distribution of Tobacco Products Prohibited.

1. No tobacco retailer nor any agent or employee of a tobacco retailer shall engage in the nonsale distribution of any electronic cigarette, electronic cigarette paraphernalia, electronic cigarette product, tobacco product or coupon in any public place.

2. No person, motivated by an economic or a business purpose, shall knowingly permit the nonsale distribution of any electronic cigarette, electronic cigarette paraphernalia, electronic cigarette product, tobacco product or coupon: (a) anywhere in any public place under the legal or de facto control of the person; or (b) through any agent or employee of the person.

This provision shall not apply to coupons incidentally distributed in connection with a printed or electronic publication, such as, for example, magazines, newspapers, and websites, so long as that person’s distribution of a publication containing coupons is not primarily motivated by an economic or a business purpose to distribute coupons.

3. No tobacco retailer may honor or redeem, or offer to honor or redeem, a coupon to allow a consumer to purchase a tobacco product for less than the full retail price.

4. No tobacco retailer may sell any tobacco product to a consumer through a multiple-package discount or otherwise provide any such product to a consumer for less than the full retail price in consideration for the purchase of any tobacco product or other item.

City Council/RSA Agenda 250 Tuesday, April 9, 2024

5. No tobacco retailer may provide any free or discounted item to a consumer in exchange for the purchase of any tobacco product.

K. Minimum Pack Size for Cigars.

1. Notwithstanding any other provision of this chapter, no tobacco retailer shall sell, offer for sale, or exchange for any form of consideration:
a. Any single cigar, whether or not packaged for individual sale; b. Any number of cigars fewer than the number contained in the manufacturer’s original consumer packaging designed for retail sale to a consumer; or c. Any package of cigars containing fewer than tenfive cigars. d. Cigars at a price of less than fifteen dollars per package of ten cigars, including all applicable taxes and fees.

2. This subsection does not apply to the sale or offer for sale of a single cigar for which the retail price exceeds either eightfive dollars, including all applicable taxes and fees.

This or the dollar amount may be increased annually by the Consumer Price Index, as determined by the City Council and adopted by resolution of the City Council and adjusted from time to time, whichever is higher. The public shall be given notice of any such resolution in the manner notice is given of ordinances of the City.

3. This subsection shall apply to cigars, cigarillos and any other cigar product regardless of the terminology used for the product.

L. Sale of Single-Use Electronic Smoking Products. No person may sell or possess with the intent to sell any single-use electronic smoking product within the city.

M. Flavored Tobacco Products. It shall be unlawful for any tobacco retailer to sell any flavored tobacco product.

1. Presumptive flavored tobacco product. There shall be a rebuttable presumption that a tobacco product is a flavored tobacco product if a tobacco retailer, manufacturer, or any employee or agent of a tobacco retailer or manufacturer has taken action directed to consumers that would be reasonably expected to cause consumers to believe the tobacco product is a flavored tobacco product. Any communication by or on behalf of the manufacturer or retailer of a tobacco product that such tobacco product imparts a taste or odor other than the taste or odor of tobacco, or that imparts a heating, cooling, or numbing sensation, constitutes presumptive evidence that the tobacco product is a flavored tobacco product. This includes but is not limited to public statements that a product is flavored, such as describing the product as “chill,” “ice,” “fresh,” “arctic,” “sweet,” “spicy,” or “frost.”

5.42.030 Limits on eligibility for a tobacco retailer license.

A. No license shall be issued to authorize tobacco retailing at other than a fixed location.

B. No license shall be issued to authorize tobacco retailing at a location where electronic cigarettes, electronic cigarette paraphernalia, electronic cigarette products or tobacco products are prohibited from being distributed pursuant to Title 18.

C. No license shall be issued to a location or a tobacco retailer where prohibited pursuant to Section 5.42.110.

D. Proximity to other tobacco retailers. No license may issue, and no existing license may be renewed, to authorize tobacco retailing within 500 feet of a tobacco retailer location already licensed pursuant to this chapter as measured by a straight line from the nearest point of the property line of the parcel on which the applicant’s business is located to the nearest point of City Council/RSA Agenda 251 Tuesday, April 9, 2024
the property line of the parcel on which an existing licensee’s business is located. This restriction does not apply to an applicant who has been licensed to sell tobacco products as of March 1, 2024.

E. Pharmacies. No license may issue, and no existing license may be renewed, to authorize tobacco retailing in a pharmacy.

5.42.040 Application procedure.

A. Application for a tobacco retailer’s license shall be submitted in the name of each proprietor proposing to conduct tobacco retailing and shall be signed by each proprietor or an authorized agent thereof.

It is the responsibility of each proprietor to be informed regarding all laws applicable to tobacco retailing, including those laws affecting the issuance of a tobacco retailer’s license. No proprietor may rely on the issuance of a license as a determination by the City that the proprietor has complied with all laws applicable to tobacco retailing. A license issued contrary to this chapter, contrary to any other law, or on the basis of false or misleading information supplied by a proprietor shall be revoked pursuant to Section 5.42.110(D) of this chapter. Nothing in this chapter shall be construed to vest in any person obtaining and maintaining a tobacco retailer’s license any status or right to act as a tobacco retailer in contravention of any provision of law.

All applications shall be submitted on a form supplied by the Department and shall contain the following information:

1. The name, address, and telephone number of each proprietor of the business seeking a license;

2. The business name, address, and telephone number of the single fixed location for which a license is sought;

3. A single name and mailing address authorized by each proprietor to receive all communications and notices (the “authorized address”) required by, authorized by, or convenient to the enforcement of this chapter. If an authorized address is not supplied, each proprietor shall be understood to consent to the provision of notice at the business address specified in subsection (A)(2);

4. Proof that the location for which a tobacco retailer’s license is sought has been issued a valid state tobacco retailer’s license by the California Board of EqualizationDepartment of Tax and Fee Administration;

5. Whether or not any proprietor or any agent of the proprietor has admitted violating, or has been found to have violated, this chapter and, if so, the dates and locations of all such violations within the previous five years;

6. A statement signed by each proprietor that no drug paraphernalia is or will be sold at the location for which the license is sought;

7. Such other information as the Department deems necessary for the administration or enforcement of this chapter as specified on the application form required by this section.

B. A licensed tobacco retailer shall inform the Department in writing of any change in the information submitted on an application for a tobacco retailer’s license within ten business days of a change.

C. All information specified in an application pursuant to this section shall be subject to disclosure under the California Public Records Act (California Government Code Section 6250 et seq.) or any other applicable law, subject to the laws’ exemptions.

City Council/RSA Agenda 252 Tuesday, April 9, 2024

5.42.050 Issuance of license.

Upon the receipt of a complete application for a tobacco retailer’s license and the license fee required by this chapter, the Administrator shall issue a license unless substantial evidence demonstrates that one or more of the following bases for denial exists:

A. The information presented in the application is inaccurate or false. Intentionally supplying inaccurate or false information shall be a violation of this chapter; B. The application seeks authorization for tobacco retailing at a location for which this chapter prohibits issuance of tobacco retailer licenses. However, this subsection shall not constitute a basis for denial of a license if the applicant provides the City with documentation demonstrating by clear and convincing evidence that the applicant has acquired or is acquiring the location or business in an arm’s length transaction; C. The application seeks authorization for tobacco retailing for a proprietor or location for which this chapter prohibits a license to be issued, including the provisions of Section 5.42.110;
D. The application seeks authorization for tobacco retailing that is prohibited pursuant to this chapter (e.g., mobile vending), that is unlawful pursuant to this Code or that is unlawful pursuant to any other law;
E. The location for which a tobacco retailer’s license is sought lacks a valid state tobacco retailer’s license by the California Department of Tax and Fee AdministrationBoard of Equalization.

5.42.060 License renewal and expiration.

A. Term and Renewal of License. A tobacco retailer’s license is invalid if the appropriate fee has not been timely paid in full or if the term of the license has expired. The term of a tobacco retailer license is one year. Each tobacco retailer shall apply for the renewal of his or her tobacco retailer’s license and submit the license fee no later than thirty days prior to expiration of the term.

B. Expiration of License. A tobacco retailer’s license that is not timely renewed shall expire at the end of its term. To renew a license not timely renewed pursuant to subsection A, the proprietor must:

1. Submit the license fee and application renewal form; and

2. Submit a signed affidavit affirming that the proprietor:
a. Has not sold and will not sell any electronic cigarette, electronic cigarette product, electronic cigarette paraphernalia, tobacco product or tobacco paraphernalia after the license expiration date and before the license is renewed; or b. Has waited the appropriate ineligibility period established for tobacco retailing without a license, as set forth in Section 5.42.110(A) of this chapter, before seeking renewal of the license.

5.42.070 Licenses nontransferable.

A. A tobacco retailer’s license may not be transferred from one person to another or from one location to another. A new tobacco retailer’s license is required whenever a tobacco retailing location has a change in proprietor(s).

B. Notwithstanding any other provision of this chapter, prior violations at a location shall continue to be counted against a location and license ineligibility periods shall continue to apply to a location unless:

City Council/RSA Agenda 253 Tuesday, April 9, 2024

1. The location has been fully transferred to a new proprietor or fully transferred to entirely new proprietors; and

2. The new proprietor(s) provide the City with clear and convincing evidence that the new proprietor(s) have acquired or is acquiring the location in an arm’s length transaction.

5.42.080 License conveys a limited, conditional privilege.

Nothing in this chapter shall be construed to grant any person obtaining and maintaining a tobacco retailer’s license any status or right other than the limited conditional privilege to act as a tobacco retailer at the location in the City identified on the face of the permit. For example, nothing in this chapter shall be construed to render inapplicable, supersede, or apply in lieu of, any other provision of applicable law, including but not limited to, any provision of this Code, or any condition or limitation on smoking in an enclosed place of employment pursuant to California Labor Code Section 6404.5. For example, obtaining a tobacco retailer license does not make the retailer a “retail or wholesale tobacco shop” for the purposes of California Labor Code Section 6404.5.

5.42.090 Fee for license.

The fee to issue or to renew a tobacco retailer’s license shall be established from time to time by resolution of the City Council and shall be included within the City’s Master Fee Schedule. The fee shall be calculated so as to recover the cost of administration and enforcement of this chapter, including, for example, issuing a license, administering this chapter, retailer inspection and compliance checks, documentation of violations, and prosecution of violators, but shall not exceed the cost of the regulatory program authorized by this chapter. All fees and interest upon proceeds of fees shall be used exclusively to fund the program. Fees are nonrefundable except as may be required by law.

5.42.100 Compliance monitoring.

A. Compliance with this chapter shall be monitored by the Police Department. The City may designate any number of additional persons to monitor compliance with this chapter.

B. Compliance checks shall be conducted so as to allow the Police Department to determine, at a minimum, if the tobacco retailer is conducting business in a manner that complies with laws regulating youth access to electronic cigarettes, electronic cigarette paraphernalia, electronic cigarette products or tobacco products. When the Police Department deems appropriate, the compliance checks shall determine compliance with other laws applicable to tobacco retailing.

C. The City shall not enforce any law establishing a minimum age for electronic cigarette, electronic cigarette paraphernalia, electronic cigarette product or tobacco product purchases or possession against a person who otherwise might be in violation of such law because of the person’s age (hereinafter “youth decoy”) if the potential violation occurs when:

1. The youth decoy is participating in a compliance check supervised by a peace officer or a code enforcement official of the City;

2. The youth decoy is acting as an agent of a person designated by the City to monitor compliance with this chapter; or

3. The youth decoy is participating in a compliance check funded in part, either directly or indirectly through subcontracting, by the Alameda County Public Health Department or the California Department of Health Services.

City Council/RSA Agenda 254 Tuesday, April 9, 2024

5.42.110 Violations Suspension and revocation of license.

A. Violations. Suspension or revocation of tobacco retailer license for violation. In addition to any other penalty authorized by law, a Tobacco Retailer License shall be suspended or revoked if the Department finds or a court of competent jurisdiction determines, after the licensee is afforded notice and an opportunity to be heard, that the licensee, or any of the licensee's agents or employees, has violated any provision of this Chapter.If the Administrator has reasonable cause to believe a violation of this chapter exists, or if any court of competent jurisdiction determines the same, the Administrator may issue a notice of violation and begin the revocation process as follows:

1. Upon a finding of a first violation of this Chapter at a location within any 5 year period, the License shall be suspended for 30 days.First Violation. After a first violation of this chapter at a location within any sixty-month period, the Administrator shall:
a. Issue a written warning to the licensee, which includes: the facts supporting the finding of a violation, the penalties for further violations of this chapter, and provides thirty days within which the licensee may cure the violation and advise employees of applicable regulations or contact the Administrator to challenge the finding of a violation. b. If the licensee contacts the Administrator to challenge the finding of a violation, the Administrator shall provide written notice of a hearing, not less than five business days after the notice, at which the tobacco retailer may show cause, at a time and place specified in the notice, why a violation does not exist. Should the tobacco retailer fail to present evidence at such hearing establishing, in the reasonable determination of the Administrator, that a violation does not exist, the Administrator shall provide written notice to the tobacco retailer that the notice of violation is upheld.

2. Upon a finding of a second violation of this Chapter at a location within any 5 year period, the License shall be suspended for 90 days.Second Violation. After a second violation of this chapter at a location within any sixty-month period, the license shall be revoked and no new license shall be issued for the location or the tobacco retailer until thirty days have passed from the date of revocation.

3. Upon a finding of a third violation of this Chapter at a location within any 5 year period, the License shall be suspended for 1 year.Third Violation. After a third violation of this chapter at a location within any sixty-month period, the license shall be revoked and no new license shall be issued for the location or the tobacco retailer until ninety days have passed from the date of revocation.

4. Upon a finding of four or more violations of this Chapter at a location within any 5 year period, the License shall be revoked with no new license issued for a five year period.Fourth Violation and Additional Violations. After four or more violations of this chapter at a location within any sixty-month period, the license shall be revoked and no new license may issue for the location or tobacco retailer until five years have passed from the date of revocation.

B. Revocation Procedures. If the licensee contacts the Administrator to challenge the finding of a violation, the Administrator shall provide written notice of a hearing, not less than five business days after the notice, at which the tobacco retailer may show cause, at a time and place specified in the notice, why a violation does not exist. Should the tobacco retailer fail to present evidence at such hearing establishing, in the reasonable determination of the Administrator, that a violation does not exist, the Administrator shall provide written notice to the tobacco retailer that the notice of violation is upheld. If a license is subject to revocation, the City Council/RSA Agenda 255 Tuesday, April 9, 2024
Administrator shall provide written notice of revocation along with the reasons for revocation, facts suggesting violation, the penalties for violation, and ability to appeal pursuant to subsection C. Within five days of the mailing of notice of revocation, the tobacco retailer shall cease the operation of the business for which the license was issued.

C. Appeal of Revocation. A decision of the Administrator to revoke a license is appealable to the City Manager and must be filed with the City Clerk within ten days of mailing of the Administrator’s notice of revocation. If such an appeal is made, it shall stay enforcement of the appealed action. An appeal to the City Manager is not available for a revocation made pursuant to subsection D. The date, time, and place of appeal hearings shall be provided in writing to the tobacco retailer with at least ten days’ notice and copies of hearing rules. If the tobacco retailer fails to present evidence establishing that tobacco retailer is entitled to retain the license, the City Manager shall uphold the revocation and give written notice to the tobacco retailer. Within five days of the mailing of the notice of upheld revocation, the tobacco retailer shall cease operation of the business for which the license was issued.

D. Revocation of License Wrongly Issued. A tobacco retailer’s license shall be revoked if the Administrator finds, after the licensee is afforded notice and an opportunity to be heard, that one or more of the bases for denial of a license under Section 5.42.050 existed at the time application was made or at any time before the license issued. The decision by the Administrator shall be the final decision of the City. Such a revocation shall be without prejudice to the filing of a new license application.

5.42.120 Enforcement.

A. Criminal Prosecution. Each incident of violation of this chapter is a misdemeanor. The Department may impose administrative penalties as follows:

1. For a first violation of this Chapter within any 5 year period, two hundred fifty dollars ($250);

2. For a second violation of this Chapter within any 5 year period, five hundred dollars ($500); and

3. For a third or subsequent violation of this Chapter within any 5 year period, one thousand dollars ($1,000).n infraction subject to a one hundred dollar fine or otherwise punishable pursuant to Section 1.16.030 of this Code. Other violations of this chapter may, in the discretion of the City Prosecutor, be prosecuted as infractions or misdemeanors when the interests of justice so require. Enforcement of this chapter shall be the responsibility of the Police Chief or designee. In addition, any peace officer or code enforcement official also may enforce this chapter.

B. Civil Enforcement by the City.

1. Fines. Violations of this chapter are subject to a civil action brought by the City of Union City, punishable by a civil fine not less than two hundred fifty dollars and not exceeding one thousand dollars per violation.

2. Injunctions, Nuisance Abatement, and Code Enforcement. In addition to other remedies provided by this chapter or by other law, any violation of this chapter may be remedied by a civil action brought by the City Attorney including, for example, administrative or judicial nuisance abatement proceedings, civil or criminal code enforcement proceedings, and suits for injunctive relief. Where the City pursues a civil action to remedy a violation of this chapter, the prevailing party shall be entitled to recovery of attorneys fees if the City elects, at the beginning City Council/RSA Agenda 256 Tuesday, April 9, 2024
of that action, to seek recovery of its own attorneys’ fees pursuant to Government Code Section 38773.5 as currently drafted or as amended.

C. General Provisions.

1. Cumulative Remedies. The remedies provided by this chapter are cumulative and in addition to any other remedies available at law or in equity.

2. Violations. Causing, permitting, aiding, abetting, or concealing a violation of any provision of this chapter shall also constitute a violation of this chapter. A violation exists for each day on which an electronic cigarette, electronic cigarette product, electronic cigarette paraphernalia,a tobacco product or tobacco paraphernalia is offered for sale in violation of this chapter. A violation also exists for each individual retail electronic cigarette, electronic cigarette product or tobacco product and each individual retail item of electronic cigarette paraphernalia tobacco paraphernalia that is distributed, sold, or offered for sale in violation of this chapter.

3. Nuisances. Violations of this chapter are hereby declared to be public nuisances.

4. No Testimony for Persons Under Eighteen. Whenever evidence of a violation of this chapter is obtained in any part through the participation of a person under the age of eighteen years old, such a person shall not be required to appear or give testimony in any civil or administrative process brought to enforce this chapter and the alleged violation shall be adjudicated based upon the sufficiency and persuasiveness of the evidence presented.

City Council/RSA Agenda 257 Tuesday, April 9, 2024
From: Isha Singh
To: City Clerk
Subject: Public Comment for agenda item 7.a.

Date: Tuesday, April 9, 2024 4:55:22 PM
WARNING: External email. Please verify sender before opening attachments or clicking on links.

Good evening Mayor and Councilmembers. I am Isha Singh, a resident of Union City and Youth Commissioner, and I am in support of agenda item 7a. I am so glad that action is being taken to protect the youth of Union City, but it is important that we ensure that these policies are making an impact. In order to do this, I ask that the ordinance includes a 6 month report in which the police department goes to tobacco retailers to ensure the policies are being properly enforced. The department should make sure only the permitted tobacco products are being sold and should be citing any violators. Without the enforcement of the ordinance, the work we have been doing for the past 3 years would not be impactful. So in order to ensure that the youth of Union City are protected, I ask that you establish this 6 month report. Thank you.

Desk Item 7.a.

Written Public Comment
City Council Meeting
4/9/2024
City Council/RSA Agenda 258 Tuesday, April 9, 2024
To: Union City Council Members
From: Eden Youth Center
680 W Tennyson Rd.

Hayward, CA 94544
Date: April 9, 2024
Attn: Public Comment for Union City Council Meeting- Agenda Item #7. a.

Dear Mayor Dutra-Vernaci and Council Members:

With a quickly approaching June 1st enforcement date, please consider that proactive compliance checks in all licensed retailers is best practice in ensuring that these stores are monitored and brought into compliance.

Some cities who adopt TRLs but do not have the staff capacity to enforce their ordinances decide to portion TRL fees to outside agencies in conducting enforcement activities. Eden Youth Center is here to inform you that we can offer our assistance in this area.

Eden Youth Center trains youth to support underage sales operations and can even contract with the city to conduct TRL compliance checks, should you want assistance with either aspect of effective TRL enforcement. For example, if Union City determines it does not have the staff capacity to conduct TRL enforcement in-house, it would be an option to earmark a portion of the $863 annual TRL fee that the city is collecting from retailers for TRL enforcement (approx. $28,000 annually) to contract with an agency who could conduct sales inspections and youth decoy operations.

This support may be especially helpful as California STAKE ACT youth decoy operations conducted in 2021 reported that almost a third (29%) of Union City tobacco retailers inspected sold tobacco to minors. Eden Youth Center will be available to explore these options with the city if that is helpful in moving TRL enforcement forward.

Thank you for your consideration.

City Council/RSA Agenda 259 Tuesday, April 9, 2024
From: Luis Santos
To: City Clerk
Subject: Public Comment 7a
Date: Tuesday, April 9, 2024 4:27:18 PM
Attachments: image001.png
Eden YouthxUnion City Comment- Compliance (FINAL).pdf
WARNING: External email. Please verify sender before opening attachments or clicking on links.

Good Afternoon,
I hope all is well. I am writing to formally submit the public comment on behalf of Eden Youth Center for agenda item 7a. “Waive Further Reading and Adopt an Ordinance Amending Union City Municipal Code Chapter 5.42, “Tobacco Retailers” And/Or Provide Further Direction.

Attached to this email is a copy of the public comment, should you have any questions or concerns, please feel free to contact me at [email protected]. Thank you and have a great rest of your day!
Sincerely,
Luis Santos
Luis Santos Hernandez
Community Engagement Specialist
(He/Him/Él)
[email protected]
O: 510.887.1147
C: 510.479.2856
edenyouth.org
City Council/RSA Agenda 260 Tuesday, April 9, 2024
ORDINANCE AMENDING CHAPTER 5.42
“TOBACCO RETAILERS”
City Council
April 9, 2024
City Council/RSA Agenda 261 Tuesday, April 9, 2024
2 Amendments
• March 26: The City Council waived full reading and introduced the proposed ordinance. • Prohibition on the sale of single-use electronic smoking products. • Prohibition on the sale of flavored tobacco products. • Prohibition on the sale of tobacco products in pharmacies. • Minimum single cigar price of $8 (increase from $5) with possible annual increases by the Consumer Price Index (CPI).
• Minimum pack size of 10 (increase from 5) for cigars with a minimum price of $15. • Increase the amount for fines related to violations. • Prohibit the issuance of tobacco retail licenses within 500 feet of each other. • Allow the transfer of a tobacco retailers license with the transfer of a business and revising the definition of • “arm’s length transaction”. This will allow existing tobacco retailers within 500 feet of each other to continue• being a tobacco retailer despite a change in business ownership.• Prohibition on discounts. • Enforcement date of June 1, 2024.

City Council/RSA Agenda 262 Tuesday, April 9, 2024
3 Recommendation
Staff and the City Attorney’s Office recommends that the City Council waive further reading and adopt the proposed ordinance amending Union City Municipal Code Chapter 5.42, “Tobacco Retailers” and/or provide any further direction as necessary.

City Council/RSA Agenda 263 Tuesday, April 9, 2024
Agenda Item
DATE: 4/9/2024
TO: HONORABLE MAYOR AND CITY COUNCIL
FROM: JACKIE ACOSTA, FINANCE DIRECTOR
SUBJECT: PRESENTATION OF THE FISCALYEAR 2022-2023 UNAUDITED YEAREND GENERAL FUND FINANCIAL RESULTS AND FISCALYEAR 2023- 2024 MID-YEAR GENERAL FUND FINANCIAL INFORMATION AND
ADOPTION OF A RESOLUTION APPROVING FISCALYEAR 2023-2024

MID-YEAR GENERAL FUND BUDGET AMENDMENTS
See attached pdf staff report.

STRATEGIC PLAN ALIGNMENT

BACKGROUND

DISCUSSION

FISCAL IMPACT

RECOMMENDATION
Staff recommends that the City Council hear a presentation on the FiscalYear 2022-2023 Unaudited Year-End General Fund financial results and FiscalYear 2023-2024 Mid-Year General Fund financial information and adopt a resolution approving the FiscalYear 2023-2024 Mid-Year General Fund budget amendments.

Prepared by:

City Council/RSA Agenda 264 Tuesday, April 9, 2024
Jackie Acosta, Finance Director
Tim Przybyla, Interim Accounting Manager
Submitted by:

Jackie Acosta
ATTACHMENTS:

Description Type
Staff Report Staff Report
Resolution Resolution
Item7.b. PowerPoint Attachment
City Council/RSA Agenda 265 Tuesday, April 9, 2024
Agenda Item
DATE: 4/9/2024
TO: HONORABLE MAYOR AND CITY COUNCIL
FROM: JACKIE ACOSTA, FINANCE DIRECTOR
SUBJECT: PRESENTATION OF THE FISCAL YEAR 2022-2023 UNAUDITED

YEAR-END GENERAL FUND FINANCIAL RESULTS AND FISCAL
YEAR 2023-2024 MID-YEAR GENERAL FUND FINANCIAL

INFORMATION AND ADOPTION OF A RESOLUTION APPROVING
FISCAL YEAR 2023-2024 MID-YEAR GENERAL FIND BUDGET

AMENDMENTS

EXECUTIVE SUMMARY
Staff recommends that the City Council hear a presentation on the Fiscal Year 2022-2023 Unaudited Year-End General Fund financial results and Fiscal Year 2023-2024 Mid-Year General Fund financial information and also adopt a resolution approving the Fiscal Year 2023-2024 Mid-Year General Fund budget amendments.

STRATEGIC PLAN
This staff report aligns with Goal A: Financial Stability and Sustainability.

BACKGROUND
Due to the cyberattack and significant staff turnover in the Finance Department over the past three years, staff continue to be behind in year-end closings and audits. However, staff is close to being caught up and expect to have a timely close and audit for the current fiscal year which will end on June 30, 2024. The Audit Committee will be presented with the Fiscal Year 2021-2022 audited financial statements in April and then the report will be presented to the full City Council. The year-end close for Fiscal Year 2022-2023 has begun and the audit will commence soon.

DISCUSSION
At the last City Council meeting, staff presented financial information for FY 2021-2022. Tonight, staff will start with the unaudited financial information for FY 2022-2023. Later in this report, staff will also provide mid-year (through December 2023) financial information for FY 2023-2024 and a list of requested mid-year budget adjustments.

City Council/RSA Agenda 266 Tuesday, April 9, 2024
FY 2022-2023 UNAUDITED FINANCIAL DATA - GENERAL FUND
Table 1 presents the unaudited year-end financial results in the General Fund, as well as summarized Budget to Actual information.

Table 1

GENERAL FUND
FY 2022-2023

ADOPTED
BUDGET
FY 2022-2023

AMENDED
BUDGET
FY 2022-2023

UNAUDITED

YEAR-END
EST. ACTUALS
FY 2022-2023

AMENDED

BUDGET VS
ACTUAL

VARIANCES
REVENUES:

Operating Revenues $69,480,200 $70,358,400 $72,885,434 $2,527,034 Transfers-In 8,317,913 8,317,913 7,299,913 ($1,018,000) Sale of City Property 0 0 2,137 2,137
Proceeds of Lease Fin. 0 0 511,078 511,078
Total Revenues $77,798,113 $78,676,313 $80,698,562 $2,022,249 EXPENDITURES:

Operating Expenditures $72,910,897 $79,927,778 $68,499,052 $11,428,726 Transfers Out 1,465,900 1,465,900 1,465,900 0
Total Expenditures $74,376,797 $81,393,678 $69,964,952 $11,428,726

REVENUES IN

EXCESS OF

EXPENDITURES
$3,421,316 ($2,717,365) $10,733,610 $13,450,975
When comparing budget to actual results, FY 2022-2023 revenues are $2,022,249 more than the amended revenue budget, which is a positive 2.57% variance. FY 2022-2023 expenditures are approximately $11.4 million less than the amended expenditure budget, which represents a 14.3% variance. Union City realized $3.8M of salary and benefits savings, $5.8M of professional and contractual services savings, and $1.8M of other savings, for the combined total of $11.4M in expenditure savings. The $2,022,249 positive variance in revenues was primarily due Property Tax revenues exceeding projections by $1.27 million, Sales Tax exceeding projections by $714,279 and Business License Tax exceeding projections by $248,579. The combined positive variances in revenues and expenditures amount to $13,450,975 for the betterment of the General Fund, compared to budget.

However, with that said, had the City not received $7M in ARPA funds and had $11.4M in expenditure savings, the City would have ended FY 2022-2023 with a shortfall of $7.7M.

The next two sections provide budget-to-actual information for FY 2022-2023 to show how our major revenue sources fared compared to the revenue estimates and to demonstrate where the majority of expenditures savings came from.

FY 2022-2023 GENERAL FUND REVENUES:

Again, for FY 2022-2023, total revenues were $2M more than the amended budget. Most of the City’s major revenues performed better than estimated, while one came in under the original revenue estimates. The City’s largest General Fund revenue source is Property Tax. For FY 2022-2023, property taxes were $1,273,513 more than the revenue projection. The City’s second and third largest revenue sources are the Bradley-Burns 1% sales tax and the Measure AA 0.5% local sales tax, City Council/RSA Agenda 267 Tuesday, April 9, 2024
respectively. Both of those revenue sources performed better than projected. The Bradley-Burns sales tax was $714,279 more than estimated and the Measure AA local sales tax was $105,437 more than estimated. One of the revenues that has still not returned to pre-pandemic levels is Transient Occupancy Tax; it was short of staff’s revenue projection by $641,127. The Utility Users’ Tax revenues were $630,863 more than projected. A summary of the significant budget-to-actual revenue variances is shown in Table 2 below:

Table 2

REVENUE SOURCE
FY 2022-2023

AMENDED
BUDGET
FY 2022-2023

UNAUDITED

YEAR-END
EST. ACTUALS
FY 2022-2023

AMENDED

BUDGET VS
ACTUAL

VARIANCES
Property Taxes $27,087,300 $28,360,813 $1,273,513
Sales Tax (Bradley-Burns) 11,742,000 12,456,279 714,279 Sales Tax (Measure AA) 7,069,000 7,174,437 105,437
Transient Occupancy Tax 2,473,900 1,832,773 (641,127)
Franchise Taxes 5,860,000 5,866,744 6,744
Business License Tax 1,650,000 1,898,579 248,579
Real Property Transfer Tax 220,500 322,712 102,212
Cannabis Tax 588,500 688,917 100,417
Utility Users’ Tax 5,665,000 6,295,863 630,863
Licenses & Permits 3,668,300 2,910,310 (757,990)
Fines & Forfeitures 422,500 263,941 (158,559)
Intergovernmental Revenues 822,900 743,234 (79,666)
Charges for Services 2,287,400 2,642,203 354,803
Investment & Rental Income 616,900 1,108,725 491,825
Miscellaneous Revenues 184,200 319,904 135,704
Proceeds from Lease Financing 0 511,078 511,078
Proceeds from Sale of City Property 0 2,137 2,137
ARPA 7,049,913 7,049,913 0
Transfers-In 1,268,000 250,000 (1,018,000)
Total Budget-to-Actual Variance $78,676,313 $80,698,562 2,022,249 FY 2022-2023 GENERAL FUND EXPENDITURES:

In FY 2022-2023, total expenditures were $11,428,726 less than budgeted. These significant savings were realized because the City continued to proceed cautiously with regards to City finances due to the lingering impacts of the cyberattack and the ongoing pandemic. The challenges of finding qualified candidates and the lack of staffing continued to slow the City’s recovery and the implementation of capital projects and programs in FY 2022-2023. Staff is hopeful that throughout 2024, the City will continue to fill vacancies and to restore services to a pre-pandemic level. However, as the Council is aware, the market for employees is very tight. A summary of the significant budget-to-actual expenditure variances that make up the $11.4 million expenditure savings is shown in Table 3 on the following page:

City Council/RSA Agenda 268 Tuesday, April 9, 2024
Table 3

EXPENDITURE TYPE
FY 2022-2023

AMENDED
BUDGET
FY 2022-2023

UNAUDITED

YEAR-END
EST. ACTUALS
FY 2022-2023

AMENDED

BUDGET VS
ACTUAL

VARIANCES
Full-Time Pay $24,066,994 $21,331,611 $2,735,383
CalPERS Retirement 13,359,152 12,803,488 555,664
Health Insurance 3,412,620 2,932,172 480,448
Professional/Consulting Services 2,774,301 1,004,906 1,769,395 Contractual Services 22,252,665 18,154,937 4,097,728
Utilities 919,000 745,232 173,768
Travel & Training 664,067 341,717 322,350
All Other Expenditure Accounts 13,944,879 12,650,889 1,293,990 Totals $81,393,678 $69,964,952 $11,428,726
As stated above, had the City not received Federal ARPA funds and not had significant expenditure savings, FY 2022-2023 would have ended with a $7.7M shortfall (expenditures in excess of revenues).

Table 4 provides a look at how the FY 2022-2023 unaudited year-end financial results will affect the General Fund balance. The positive budget outcome is in line with the long-range budget forecast model that the City Council reviewed in May 2023 and again in November 2023, though the savings are more than expected.

Table 4
General Fund Balance at 6-30-2022 $34,477,681
Plus: FY 2022-2023 Total Revenues 80,698,562
Less: FY 2022-2023 Total Expenditures (69,964,952)
Net Change in Fund Balance $10,733,610
Estimated General Fund Balance at 6-30-2022 $45,211,291 FY 2023-2024 MID-YEAR BUDGET REVIEW - GENERAL FUND
As of December 31, 2023, the City of Union City seems to be on track with its General Fund revenues and expenditures. Total Revenues are at approximately 38% of budget, and total expenditures stand at approximately 43% of budget for the first six months of Fiscal Year 2023-2024 (FY 2024). Staff is still confident with the revenue projections and anticipate that we will finish the fiscal year well within the total appropriated expenditures. Further discussion of General Fund revenues and expenditures follows, including comparisons to mid-year for Fiscal Year 2022-2023 (FY 2023).

City Council/RSA Agenda 269 Tuesday, April 9, 2024
FY 2022-2023 & FY 2023-2024 GENERAL FUND REVENUES:

As depicted in the schedule above, total General Fund revenues as of December 31, 2023 amount to $29,341,607, or 38%, of projected annual revenues of $76,242,744. This is a reasonable percentage, given the timing of the receipt of the major revenue sources. The major difference between mid-year revenues for FY 2024 and FY 2023 is the lack of Transfers In revenue for the current fiscal year to date. Over $7 million of American Recovery Plan Act (ARPA) funds were transferred into the General Fund before Mid-Year in FY 2023, and those funds are no longer available to assist the City’s General Fund. No entries had been made by Mid-Year to record any of the $818,000 of Transfers In that are budgeted for FY 2024, either. When excluding Transfers In, Mid-Year FY 2023 and Mid-Year FY 2024 are generally consistent with each other, with FY 2023 at 39% and FY 2024 at 38% of projected annual revenues. FY 2023 has not been audited yet, and there could be some adjustments to the “actual” figures seen on the left of the table above. However, the current figures for FY 2023 show that actual revenues of $80,698,562 are approximately $2 million more than budgeted revenues of $78,676,313. Based on the analysis of current fiscal year (FY 2024) revenues, staff estimates that revenues could fall about $400,000, or 0.53%, short of budget for FY 2024. However, estimated expenditure savings, as discussed below, are expected to more than offset this amount of estimated revenue shortfall. As we move closer to the end of FY 2024, staff will gain a better picture of how close to budget the actual revenues will be. However, staff does not see the need to amend the budget for any of the General Fund revenue projections at this time.

City Council/RSA Agenda 270 Tuesday, April 9, 2024
FY 2022-2023 & FY 2023-2024 GENERAL FUND EXPENDITURES:

As can be seen above, with total year-to-date expenditures of $34,011,390, or 44%, of the $76,675,932 (including Transfers Out) that has been appropriated to the General Fund for FY 2024, mid-year expenditures exceed the 35% of expenditures that were recorded by this time in FY 2023. Staff has reviewed these expenditures in detail and will provide explanations below for the major differences between mid-year expenditures for the two fiscal years.

While total budgeted annual expenditures of $76,675,932 (including Transfers Out) for FY 2024 are $4.7 million, or 5.8%, less than FY 2023, $5.8 million, or 20.7%, more expenditures have been recorded at mid-year in FY 2024, compared to mid-year of FY 2023. The major reason for the higher expenditures for FY 2024 is the fact that the full $8,348,024 payment of the annual CalPERS Unfunded Accrued Liability (the UAL) was posted in the first half of FY 2024. In prior fiscal years, the UAL payments were posted throughout the fiscal year, as part of the bi-weekly payroll payments.

Front-loading this large payment into the first six months of FY 2024 helped to cause a large jump in the percentage of expenditures at mid-year, compared to the prior fiscal year. Some departments’ midyear expenditure percentages have also increased, due to certain increased expenditures related to contractual services and professional services. However, those account for only a very small part of the increases, compared to the change in recording how the UAL payment is posted. Mid-year Fire Service expenditures increased by nearly $1.5 million from FY 2023 to FY 2024. The main reason for that was because only four months had been paid for those contracted services by December of 2022, while five months of that contract had been paid as of December of the current fiscal year. These are all timing issues, and staff believes that Union City will finish FY 2024 within its General Fund expenditure budget limits.

City Council/RSA Agenda 271 Tuesday, April 9, 2024
Just as staff has reviewed the General Fund revenues in detail, staff has also reviewed the General Fund expenditures in detail, and estimates that considerable savings will be realized for FY 2024. In an attempt to bring budgeted expenditures closer to actual expenditures for FY 2024, Union City included projected salary savings of $2,282,299 in the Non-Departmental budget, as such annual savings are regularly realized due to vacancies in staff positions and the time that it takes to fill such positions.

Based on year-to-date salary expenditures and projections for the remaining pay periods for FY 2024, staff estimates that salary savings of over $2.2 million will be realized this fiscal year. With other potential expenditure savings that staff has identified, staff estimates that an additional $1.8 million of savings could be realized, which would result in General Fund revenues exceeding expenditures by about $1.5 million (prior to any proposed budget amendments), rather than having expenditures exceed revenues by $433,188 as projected in the FY 2024 Adjusted Budget. By comparison, staff’s estimations for FY 2023 currently reflect a $10.7 million increase in Fund Balance, rather than the $2.7 million decrease in Fund Balance that is reflected in the FY 2023 Adjusted Budget. With careful budgeting and without the $7 million annual transfer in of ARPA funds that was received in both FY 2022 and FY 2023, staff believes that we will come much closer to budget in FY 2024 and we expect to realize an increase of at least $1.5 million to the General Fund’s Fund Balance (prior to the proposed General Fund Budget amendments).

MID-YEAR BUDGET AMENDMENTS
As part of the Mid-Year Budget Review, City departments look at their expenditure budgets to see if they will require additional appropriations to enable them to complete the fiscal year without going over budget and exceeding their legal limit for such expenditures. These additional appropriations require approval from the City Council, and City staff has identified $585,575 of budget amendments for which staff is requesting approval from the City Council. Of that amount, $155,575 will impact the General Fund’s operational expenditures and is needed by Public Works for Building Maintenance, with $8,000 needed for Supplies, $61,575 needed for Contractual Services, $1,000 needed for Laundry Services and $85,000 needed for Electricity costs. An additional $425,000 that is being requested for Capital Improvement Projects will also impact the General Fund, for a total impact of $585,575 on the General Fund. The impact of these budget amendments has not been included in the General Fund projections, which have been discussed above. However, with the estimated budget savings that were discussed in the Mid-Year Budget Review – General Fund section of this staff report, there are sufficient funds available to cover these expenditure budget increases. The adoption of these General Fund budget amendments will increase the previously approved expenditures figure from $76,675,932 (including Transfers Out) to $77,261,507. The impact of the proposed General Fund budget amendments can be seen in the two tables that follow:

City Council/RSA Agenda 272 Tuesday, April 9, 2024

As reflected in the table above, no budget amendments are being proposed for the General Fund revenues. The impact of the proposed General Fund expenditure budget amendments can be seen in the table on the following page:

City Council/RSA Agenda 273 Tuesday, April 9, 2024

As seen above, the net impact of the proposed General Fund expenditure budget amendments increases the projected change in Fund Balance from a negative $433,188 to a negative $1,018,763. However, with estimated additional savings of $1.8 million (beyond the $2.2 million of salary savings that has been built into the budget), staff estimates that Union City’s General Fund will end FY 2024 with revenues in excess of expenditures.

SUMMARY
Finance staff continues to work through the challenges we have faced to bring the City current on its financial reporting and audits. This staff report has provided unaudited financial information for FY 2022-2023 and a mid-year update for FY 2023-2024, plus staff’s request for approval of mid-year budget amendments.

FISCAL IMPACT
This staff report provides the unaudited year-end financial results of the General Fund for FY 2022- 2023 and mid-year budget information for FY 2023-2024. Additionally, if the City Council approves the proposed budget amendments, the FY 2023-2024 General Fund budget will be increased by $585,575.

City Council/RSA Agenda 274 Tuesday, April 9, 2024

RECOMMENDATION
Staff recommends that the City Council hear a presentation on the Fiscal Year 2022-2023 Unaudited Year-End General Fund financial results and Fiscal Year 2023-2024 Mid-Year General Fund financial information and adopt a resolution approving the Fiscal Year 2023-2024 Mid-Year General Fund budget amendments.

Prepared by
Jackie Acosta, Finance Director
Submitted by
Jackie Acosta, Finance Director
Attachments
Description: Type:

Staff Report PDF
Resolution approving FY 2023-2024 Mid-Year Resolution
Budget Amendments
City Council/RSA Agenda 275 Tuesday, April 9, 2024
RESOLUTION NO. ________

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF UNION CITY APPROVING FISCAL YEAR 2023-2024 GENERAL FUND MID-YEAR

BUDGET AMENDMENTS
WHEREAS, on June 20, 2023, the City Council adopted a resolution approving the Biennial Budget for Fiscal Year 2023-2024 and Fiscal Year 2024-2025 and the Five-Year Capital Improvement Plan (CIP) for Fiscal Year 2023-2024 through Fiscal Year 2027-2028; and WHEREAS, staff has provided the City Council with a Mid-Year budget report regarding Fiscal Year 2023-2024; and
WHEREAS, since the budget adoption, some of the estimates and assumptions used to prepare the biennial budget have changed, requiring adjustments to various accounts to better reflect anticipated expenditures; and
WHEREAS, the City Council desires that the Fiscal Year 2023-2024 budget reflects expected fiscal activities.

NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Union City hereby approves the mid-year budget amendments to the Fiscal Year 2023-2024 budget as shown below and directs the Finance Department to cause those changes to be reflected in the appropriate budget line items; and
BE IT FURTHER RESOLVED that the City Council of the City of Union City hereby authorizes the appropriation of the amounts listed below in the Fiscal Year 2023-2024 Amended column to the appropriate budget line items as shown on Exhibit A, attached hereto, for expenditure by City staff to carry out the operations and activities of the City of Union City for Fiscal Year 2023-2024.

FY 2023-2024 MID-YEAR BUDGET AMENDMENTS BY LINE ITEM

ACCOUNT NUMBER ACCOUNT DESCRIPTION
FY 2023-2024

CURRENT
BUDGET
FY 2023-2024

MID-YEAR

AMENDMENT
FY 2023-2024

AMENDED
BUDGET
1110-3123-33023-53402 Bldg. Maint.–Bldg, Supplies $46,558 $8,000 $54,558 1110-3123-33023-54111 Bldg. Maint.-Cont. Svcs. $163,425 $61,575 $225,000 1110-3123-33023-54125 Bldg. Maint.-Laundry Svcs. $5,500 $1,000 $6,500 1110-3123-33023-54235 Bldg. Maint.-Electricity $360,500 $85,000 $445,500 1110-3199-92221-54111 PW-CIP-Historical Museum $134,076 $55,000 $189,076 1110-3199-92230-54111 PW-CIP-Atrium Garden $190,126 $110,000 $300,126 1110-3199-XXXXX-54111 PW-CIP-CH Carpet Replacement $0 $200,000 $200,000 1110-3199-92414-54111 PW-CIP-FS 31 Fence $0 $60,000 $60,000 1110-5216-52016-51112 $3,566 $5,000 $8,566
Total Mid-Year Budget
Adjustments $585,575
City Council/RSA Agenda 276 Tuesday, April 9, 2024
Resolution No. XXXX-24

PASSED, APPROVED, AND ADOPTED by the City Council of the City of Union City at a regular meeting held on the 9th day of April 2024, by the following vote:

AYES:

NOES:

ABSENT:

ABSTAIN:

APPROVED:

CAROL DUTRA-VERNACI
Mayor
ATTESTED: APPROVED AS TO FORM:
_________________________ ____________________________
THAI NAM PHAM KRISTOPHER J. KOKOTAYLO
City Clerk City Attorney
City Council/RSA Agenda 277 Tuesday, April 9, 2024
Item 7.b.

Presentation of the Fiscal Year 2022-2023 Unaudited
Year-End General Fund Financial Results and Fiscal
Year 2023-2024 Mid-Year General Fund Financial
Information and Adoption of a Resolution Approving
Fiscal Year 2023-2024 Mid-Year General Fund
Budget Amendments
April 9, 2024
City Council/RSA Agenda 278 Tuesday, April 9, 2024
2 FY 2022-2023 & FY 2023-2024 Financial Updates• At the last City Council meeting, staff provided financial results for the General Fund for Fiscal Year 2021-2022. • Tonight, staff will present the unaudited financial results for the General Fund for Fiscal Year 2022-2023, and Mid-Yearfinancial information for the General Fund for Fiscal Year2023-2024. • Additionally, staff is requesting the City Council’s approval on a few mid-year budget adjustments.

City Council/RSA Agenda 279 Tuesday, April 9, 2024
3 FY 2022-2023 Unaudited Year-End General Fund Results
City Council/RSA Agenda 280 Tuesday, April 9, 2024
4 FY 2022-2023 Unaudited Year-End General Fund Results • Total GF revenues exceeded the budget estimate by $2M.• Total GF expenditures were under budget by $11.4M.• This created a net positive variance of $13.4M.• Looking at it another way:
• The amended budget anticipated a $2.7M shortfall.• Actual results were a $10.7 surplus.• Net positive variance = $13.4M.

City Council/RSA Agenda 281 Tuesday, April 9, 2024
5 FY 2022-2023 Budget vs Actual Revenues:• Revenues were $2,022,249 more than budgeted (positive variance) FY 2022-2023 Unaudited Year-End General Fund Results
City Council/RSA Agenda 282 Tuesday, April 9, 2024
6 FY 2022-2023 Unaudited Year-End General Fund Results • Total GF revenues exceeded the budget estimate by $2M • Property taxes +$1,273,513• BB sales tax +$714,279• TOT -$641,127 • Business License Tax +$248,579• Utility Users’ Tax +$630,863 City Council/RSA Agenda 283 Tuesday, April 9, 2024
7 FY 2022-2023 Budget vs Actual Expenditures:• Expenditures were $11.4M less than budgeted (positive variance) FY 2022-2023 Unaudited Year-End General Fund Results
City Council/RSA Agenda 284 Tuesday, April 9, 2024
8 FY 2022-2023 Unaudited Year-End General Fund Results • Total GF expenditures were $11.4M less than budgeted • FT Salaries -$2,735,383• CalPERS -$555,664• Health Insurance -$480,448• Professional/Consulting -$1,769,395• Contractual Services -$4,097,728 City Council/RSA Agenda 285 Tuesday, April 9, 2024
9 FY 2022-2023 Unaudited Year-End General Fund Results
• Net result: revenues exceeded expenditures by $10,733,610. •However, included in that amount is the second ½ of theFederal ARPA funding of $7,049,913.•Had the City not received the ARPA funding, revenues wouldhave exceeded expenditures by only $3,683,697.•And, had the City spent its entire FY 2022-2023 budget of$81M and not had significant salary & benefits, professionalservices and contractual services savings, the year-end resultswould have been a ($7.7M).

City Council/RSA Agenda 286 Tuesday, April 9, 2024
10 FY 2022-2023 Net Change in General Fund Balance:• The analysis of how much of the estimated GF balance of $45.2M is restricted, reserved or assigned will be done upon the completion of the audit. • The calculation of the 50% of surplus funds to set aside to pay down the UAL, per our Financial Principles, will be done after the completion of the audit.

FY 2022-2023 Unaudited Year-End General Fund Result
s
City Council/RSA Agenda 287 Tuesday, April 9, 2024
11 FY 2023-2024 Mid-Year Budget Review• The charts presented on the following slides for the Mid-Year Budget Review for Fiscal Year 2023-2024 include thesecolumns:
• Actuals for FY 2022-2023• Adjusted Budget for FY 2022-2023• 6 Months YTD Actuals (July – December) for FY 2022-2023 • % of Budget spent in the first 6 months• Adjusted Budget for FY 2023-2024• 6 Months YTD Actuals (July – December) for FY 2023-2024• % of Budget spent in the first 6 months • This allows us to compare where the GF is in the first 6 months of FY 2023-2024 to where the GF was in the first 6 months ofFY 2022-2023.

City Council/RSA Agenda 288 Tuesday, April 9, 2024
12 FY 2023-2024 Mid-Year Budget Review
City Council/RSA Agenda 289 Tuesday, April 9, 2024
13 FY 2023-2024 Mid-Year Budget ReviewComments on FY 2023-2024 General Fund Revenues:• Total FY 2023-2024 GF revenues as of December 2023 are at 38% compared to FY 2022-2023 GF revenues as of December2022 which were at 44%. • The primary reason for the difference is that the second $7M of ARPA funds had been received by December 2022 andthere will be no ARPA funds received in FY 2023-2024. • When excluding ARPA, the percentage of revenues collected by December 2023 and December 2022, were 38% and39%, respectively. • Therefore, revenues receipts for the first 6 months of each fiscal year are quite comparable.

City Council/RSA Agenda 290 Tuesday, April 9, 2024
14 FY 2023-2024 Mid-Year Budget ReviewComments on FY 2023-2024 General Fund Revenues (Cont.):• 38% is a reasonable percentage for the first 6 months of the fiscal year due to the timing of the receipt of the major revenue sources.
• Based on a preliminary analysis of the current FY 2023-2024 revenues, staff estimates that we could be about $400,000 shortof budget. • Estimated expenditures savings are anticipated to offset this revenue shortfall, if it materializes.
• Staff will continue to monitor revenue receipts and prepar e
updated estimates closer to the end of the fiscal year to seehow close actual revenues will be to budget.

City Council/RSA Agenda 291 Tuesday, April 9, 2024
15 FY 2023-2024 Mid-Year Budget Review
City Council/RSA Agenda 292 Tuesday, April 9, 2024
16 FY 2023-2024 Mid-Year Budget ReviewComments on FY 2023-2024 General Fund Expenditures:• Total FY 2023-2024 GF expenditures as of December 2023 are at 44% of budget as compared to FY 2022-2023 GFexpenditures as of December 2022 which were at 35%. • The main reason for the difference is that the entire $8.3M ($6.7M in the GF) for the annual CalPERS UAL (Unfunded
Accrued Liability) was posted in the first half of FY 2023- 2024, whereas in prior years, the UAL payment was postedthroughout the year through the bi-weekly payroll process. • This caused a large increase in the percentage of
expenditures at mid-year.

City Council/RSA Agenda 293 Tuesday, April 9, 2024
17 FY 2023-2024 Mid-Year Budget ReviewComments on FY 2023-2024 General Fund Expenditures (Cont.):
• Additionally, expenditures for the ACFD fire services contract were $1.5M higher at mid-year 2023-2024 because inFY 2023-2024, 5 months of payments had been posted and inFY 2022-2023, only 4 months had been posted. • These are just timing differences and staff estimates that UC will complete FY 2023-2024 within the GF expenditure budget limits. • Based on a detailed analysis of GF expenditures, staff estimates that approximately $2.3M of salary savings that are factored intothe budget will be realized and additional $1.8M of savings in otherline items may be realized by fiscal year end. • In total, it is estimated that revenues will likely exceed expenditures by about $1.5M at fiscal year end, before any budget amendments,or nearly $1M after the proposed budget amendments.

City Council/RSA Agenda 294 Tuesday, April 9, 2024
18 FY 2023-2024 Mid-Year Budget ReviewProposed Mid-Year Budget Amendments:• As part of the Mid-Year budget review, departments look at their expenditure budgets to see if they will require additionalappropriations to enable them to complete the fiscal yearwithout going over budget. • While in total mid-year expenditures are only at 44% of budget (and that includes the full UAL cost having been posted in thefirst 6 months), and staff expects to end the year withexpenditure savings, there are a few operational budgets thatappear that they will be over budget by year-end withoutadditional budget appropriations.

City Council/RSA Agenda 295 Tuesday, April 9, 2024
19 FY 2023-2024 Mid-Year Budget ReviewProposed Mid-Year Budget Amendments (Cont.):• Those are in Public Works – Building Maintenance and Community and Recreation Services – Special Needs.
• The requested operational budget amendments are:

Account Number Account Description
Current
Budget Amendment
Amended
Budget
1110-3123-33023-53402 PW-Bldg. Maint.-Building Supplies $46,558 $8,000 $54,5581110-3123-33023-54111 PW-Bldg. Maint.-Contractual Services $163,425 $61,575 $225,0001110-3123-33023-54125 PW-Bldg. Maint.-Laundry Services $5,500 $1,000 $6,5001110-3123-33023-54235 PW-Bldg. Maint.-Electricity $360,500 $85,000 $445,5001110-5216-52016-51112 CRS-Special Needs-Seasonal Pay $3,566 $5,000 $8,566Total Proposed Operational Budget Amendments $160,57 5 City Council/RSA Agenda 296 Tuesday, April 9, 2024
20 FY 2023-2024 Mid-Year Budget ReviewProposed Mid-Year Budget Amendments (Cont.):• Additionally, the City Council previously approved the use of $2.7M from FY 2020-2021 year-end saving to fund one-timedeferred maintenance projects. • A status of those projects was provided at the last meeting; $562,482 of the $2.7M has been spent to date on deferredmaintenance projects. • Two of those projects will exceed their current budgets and need additional appropriations.
• Additionally, funding is being requested for two new projects.

City Council/RSA Agenda 297 Tuesday, April 9, 2024
21 FY 2023-2024 Mid-Year Budget ReviewProposed Mid-Year Budget Amendments (Cont.):• The requested CIP budget amendments are:

Account Number Account Description
Current
Budget Amendment
Amended
Budget
1110-3199-92221-54111 PW-CIP-Historical Museum $134,076 $55,000 $189.0761110-3199-92230-54111 PW-CIP-Atrium Garden $190,126 $110,000 $300,1261110-3199-91811-54111 PW-CIP-City Hall Carpet Replacement
$0 $200,000 $200,000
1110-3199-92414-54111 PW-CIP-Fire Station 31 Fence $0 $60,000 $60,000 Total Proposed CIP Budget Amendments $425,000
City Council/RSA Agenda 298 Tuesday, April 9, 2024
22 Staff Recommendation:That City Council:1) Receive and file the staff report.2) Adopt a resolution approving the FY 2023-2024 Mid-Year General Fund budget amendments.

FY 2022-2023 & FY 2023-2024 Financial Update
City Council/RSA Agenda 299 Tuesday, April 9, 2024
Agenda Item
DATE: 4/9/2024
TO: HONORABLE MAYOR AND CITY COUNCIL
FROM: KRIS KOKOTAYLO, CITYATTORNEY
SUBJECT: INTRODUCTION OF AN ORDINANCE TO AMEND CHAPTER 2.05 “CAMPAIGN REPORTING REQUIREMENTS” IN THE UNION CITY

MUNICIPAL CODE FOR ENHANCED CLARITYAND TRANSPARENCY IN

CAMPAIGN REPORTING
Staff recommends that the City Council waive the full reading and introduce by title only the proposed ordinance amending Chapter 2.05 “Campaign Reporting Requirements” of the Union City Municipal Code.

This ordinance aims to clarify the campaign reporting requirements for candidates for elective office, ensuring increased transparency and understanding among candidates and the public. Specifically, the ordinance introduces a more precise filing deadline and clearly defines the coverage period for pre-election campaign statements in accordance with the Political Reform Act of 1974 and the City's commitment to transparent electoral processes.

STRATEGIC PLAN ALIGNMENT
Goal B. Governance and Organization Effectiveness: Produce high-quality services to the community through a commitment to local government best practices and employee development, support, and retention.

This Ordinance seeks to enhance the transparency and accountability of the City’s electoral processes by refining campaign finance reporting requirements. This initiative will facilitate candidates' compliance with reporting obligations and contribute to an informed electorate, thereby upholding the integrity of Union City’s elections.

BACKGROUND
Since the enactment of Ordinance No. 410-93, which established foundational campaign reporting requirements, there has been a recognized need for further clarity and specificity in these regulations. This has been highlighted by the evolving requirements of campaign finance reporting and stakeholder feedback, indicating areas for improvement to ensure clarity and ease of compliance.

City Council/RSA Agenda 300 Tuesday, April 9, 2024

DISCUSSION
The proposed ordinance amends Chapter 2.05 "Campaign Reporting Requirements" of the Union City Municipal Code to enhance clarity and ensure transparency in campaign reporting by candidates for elective office. This amendment focuses on three main areas:

1. Precise Filing Deadlines and Coverage Periods: The amendment specifies that the additional preelection campaign statement must be filed four (4) calendar days before the election, no later than 2:00 p.m. This clarification ensures that all candidates understand the exact timing for their reporting obligations. Additionally, it defines the coverage period for this statement to extend from the day after the last date of the most recent pre-election statement required by state law to seven (7) calendar days before the election. This adjustment aims to eliminate any ambiguity regarding the reporting timeline, facilitating accurate and timely submissions.

2. Acknowledgment of Reporting Requirements: An addition to the ordinance is Section 2.05.015, "Acknowledgment of Requirements." This new section mandates that each candidate must sign and submit a form, provided by the City Clerk, acknowledging their receipt of Union City Municipal Code Chapter

2.05. This is similar to the previous requirement, but now referencing the municipal code instead of Ordinance No. 410-93.

3. Repeal of Redundant Section: To streamline the Municipal Code and avoid redundancy, Section

2.05.040 has been repealed and reserved for future use. This section previously required candidates to acknowledge receipt of City Ordinance 410-93, a requirement now comprehensively covered by the newly added Section 2.05.015.

FISCAL IMPACT
The introduction and implementation of the proposed ordinance are not expected to incur any significant fiscal impact on the City. The amendments are designed to refine and clarify existing procedures without requiring additional resources.

RECOMMENDATION
Staff recommends Council to waive the full reading and introduce by title only the proposed ordinance amending Chapter 2.05 “Campaign Reporting Requirements” in the Union City Municipal Code.

Prepared by:

Thai Nam Pham, City Clerk
Submitted by:

Thai Nam Pham, City Clerk
ATTACHMENTS:

Description Type
Draft Ordinance - Chapter 2.05 Ordinance
City Council/RSA Agenda 301 Tuesday, April 9, 2024
Exhibit A -Amended Chapter 2.05 - Clean Copy Exhibit
Exhibit B-Amended Chapter 2.05 - Redlined Copy Exhibit
Item7.c. Powerpoint Attachment
City Council/RSA Agenda 302 Tuesday, April 9, 2024
ORDINANCE NO. XXX-24

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF UNION CITY AMENDING CHAPTER 2.05 “CAMPAIGN
REPORTING REQUIREMENTS” OF THE UNION CITY

MUNICIPAL CODE TO CLARIFY CAMPAIGN

REPORTING REQUIREMENTS FOR ELECTIVE OFFICE

CANDIDATES
WHEREAS, the City of Union City previously adopted Ordinance No. 410-93, establishing foundational campaign reporting requirements to enhance transparency and accountability in electoral processes; and
WHEREAS, comprehensive campaign reporting is essential to inform the public about the sources of electoral funding and how such funds are expended; and WHEREAS, the Political Reform Act of 1974 provides a foundational framework for campaign reporting, yet the City recognizes the need for additional clarity and specificity to better serve the unique needs and expectations of the Union City community; and WHEREAS, in pursuit of continuing transparency and accountability, and to provide clearer guidance to candidates and committees, the City Council finds it necessary to further amend the Union City Municipal Code to refine and clarify campaign reporting requirements; and WHEREAS, the adoption of additional pre-election campaign statement requirements under this ordinance enhances the City's commitment to transparent and accountable election campaigns, ensuring voters are well-informed about candidate funding and spending; and WHEREAS, the City recognizes the importance of keeping pace with evolving best practices in governance and electoral management to foster an informed electorate and fair elections;

NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF UNION CITY DOES HEREBY ORDAIN AS FOLLOWS:

SECTION 1. Recitals.

The above recitals (“Recitals”) are true and correct and made a part of this Ordinance.

SECTION 2. CEQA. Approval of the amendments is exempt from further environmental review under the general rule in California Environmental Quality Act (CEQA) Guidelines Section 15061(b)(3) that CEQA only applies to projects that have the potential for causing a 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 ordinance will have a significant effect on the environment.

SECTION 3. Chapter 2.05 of the Union City Municipal Code entitled "Campaign Reporting Requirements" is hereby amended to read as displayed in Exhibit A (clean copy), and for reference Exhibit B (redlined), incorporated and made a part of this Ordinance.

City Council/RSA Agenda 303 Tuesday, April 9, 2024
Ordinance No. XXX-24

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 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 this X day of X 2024 by the following vote:

AYES:

NOES:

ABSENT:

ABSTAIN:

APPROVED:

CAROL DUTRA-VERNACI
Mayor
ATTESTED: APPROVED AS TO FORM:

THAI NAM N. PHAM
City Clerk
KRISTOPHER J. KOKOTAYLO
City Attorney
Attachments:

1. Exhibit A – Amended Chapter 2.05 “Campaign Reporting Requirements”

2. Exhibit B – Amended Chapter 2.05 “Campaign Reporting Requirements” (Red-lined) City Council/RSA Agenda 304 Tuesday, April 9, 2024
Exhibit B
Exhibit A (Clean Copy)
Chapter 2.05

CAMPAIGN REPORTING REQUIREMENTS
§ 2.05.010 Campaign Filing and Reporting Requirements
A. Standard Reporting: All candidates for elective office in the City of Union City must adhere to the campaign reporting requirements established under the Political Reform Act of 1974, including the filing of campaign statements as prescribed by state law.

B. Additional Pre-Election Statement Requirement:
(i) Filing Requirement: In addition to the state law required filing of campaign statements, each recipient committee formed in conjunction with an election for a municipal office shall file one additional recipient committee pre-election campaign statement with the City Clerk. (ii) Filing Deadline: This statement must be filed four (4) calendar days before the election, no later than 2:00 p.m.
(iii) Coverage Period: The additional pre-election statement shall cover the period from the day after the last date of the most recent pre-election statement required by state law to seven (7) calendar days before the election.

C. Definitions: For the purposes of this Chapter, all definitions included in the Political Reform Act of 1974 as they relate to reporting requirements shall apply. § Section 2.05.015 Acknowledgment of Requirements
Each candidate shall sign and submit a form provided by the City Clerk acknowledging receipt of Union City Municipal Code Chapter 2.05 and understanding of the campaign filing and reporting requirements specified in the Union City Municipal Code.
§ 2.05.020 Contributions included in report.

The reports submitted in accordance with this chapter shall include contributions received and expenditures made by candidates up to midnight of the Wednesday before the scheduled general municipal election. § 2.05.030 Applicable definitions.

All definitions included in the Political Reform Act of 1974 as they relate to reporting requirements shall be used by candidates in submitting this additional report. § 2.05.040 Reserved
§ 2.05.050 Electronic filing.

A. Any elected officer, candidate, committee, or other person required to file statements, reports, or other documents required by Government Code Chapter 4 (commencing with Section 84100), except an elected officer, candidate, committee, or other person who receives contributions totaling less than two thousand dollars, and makes expenditures totaling less than two thousand dollars in a calendar year, shall file those statements, reports, or other documents online or electronically with the City Clerk.

City Council/RSA Agenda 305 Tuesday, April 9, 2024
Exhibit B
B. In any instance in which an original statement, report or other document must be filed with the California Secretary of State and a copy of that statement, report or other document is required to be filed with the City Clerk, the filer may, but is not required to, file the copy electronically.

C. If the City Clerk's electronic system is not capable of accepting a particular type of statement, report, or other document, an elected officer, candidate, committee or other person shall file that document with the City Clerk in an alternative format.

D. The electronic filing system will operate securely and effectively and will not unduly burden filers.

Specifically, the electronic filing system will ensure the integrity of the data and includes safeguards against efforts to tamper with, manipulate, alter, or subvert data; the electronic filing system will only accept a filing in the standardized record format developed by the Secretary of State and compatible with the Secretary of State's system for receiving an online or electronic filing; and the electronic filing system will be available free of charge to filers and to the public for viewing filings.

City Council/RSA Agenda 306 Tuesday, April 9, 2024
Exhibit B
Chapter 2.05

CAMPAIGN REPORTING REQUIREMENTS
§ 2.05.010 Campaign Filing and Reporting Requirements(Reserved) A. Standard Reporting: All candidates for elective office in the City of Union City must adhere to the campaign reporting requirements established under the Political Reform Act of 1974, including the filing of campaign statements as prescribed by state law.

B. Additional Pre-Election Statement Requirement:
(i) Filing Requirement: In addition to the state law required filing of campaign statements, each recipient committee formed in conjunction with an election for a municipal office shall file one additional recipient committee pre-election campaign statement with the City Clerk. (ii) Filing Deadline: This statement must be filed four (4) calendar days before the election, no later than 2:00 p.m.
(iii) Coverage Period: The additional pre-election statement shall cover the period from the day after the last date of the most recent pre-election statement required by state law to seven (7) calendar days before the election.

C. Definitions: For the purposes of this Chapter, all definitions included in the Political Reform Act of 1974 as they relate to reporting requirements shall apply. § Section 2.05.015 Acknowledgment of Requirements
Each candidate shall sign and submit a form provided by the City Clerk acknowledging receipt of Union City Municipal Code Chapter 2.05 and understanding of the campaign filing and reporting requirements specified in the Union City Municipal Code.
§ 2.05.020 Contributions included in report.

The reports submitted in accordance with this chapter shall include contributions received and expenditures made by candidates up to midnight of the Wednesday before the scheduled general municipal election. § 2.05.030 Applicable definitions.

All definitions included in the Political Reform Act of 1974 as they relate to reporting requirements shall be used by candidates in submitting this additional report. § 2.05.040 ReservedReceipt of copy of ordinance.

Candidate shall sign a form acknowledging receipt of a copy of City Ordinance 410-93 requiring the filing of expenditures and contribution reports as required by the Union City Municipal Code. § 2.05.050 Electronic filing.

A. Any elected officer, candidate, committee, or other person required to file statements, reports, or other documents required by Government Code Chapter 4 (commencing with Section 84100), except an elected officer, candidate, committee, or other person who receives contributions totaling less than two thousand dollars, and makes expenditures totaling less than two thousand dollars in a calendar year, shall file those statements, reports, or other documents online or electronically with the City Clerk.

B. In any instance in which an original statement, report or other document must be filed with the California Secretary of State and a copy of that statement, report or other document is required to be filed with the City Clerk, the filer may, but is not required to, file the copy electronically.

Formatted: Left: 0.79", Right: 0.39", Top: 0.39",
Bottom: 0.39"
City Council/RSA Agenda 307 Tuesday, April 9, 2024
Exhibit B
C. If the City Clerk's electronic system is not capable of accepting a particular type of statement, report, or other document, an elected officer, candidate, committee or other person shall file that document with the City Clerk in an alternative format.

D. The electronic filing system will operate securely and effectively and will not unduly burden filers.

Specifically, the electronic filing system will ensure the integrity of the data and includes safeguards against efforts to tamper with, manipulate, alter, or subvert data; the electronic filing system will only accept a filing in the standardized record format developed by the Secretary of State and compatible with the Secretary of State's system for receiving an online or electronic filing; and the electronic filing system will be available free of charge to filers and to the public for viewing filings.

City Council/RSA Agenda 308 Tuesday, April 9, 2024
ITEM 7.C | Amendment of Chapter 2.05 "Campaign
Reporting Requirements
City Council
April 9, 2024
City Council/RSA Agenda 309 Tuesday, April 9, 2024
2 Background
• Initial adoption of Campaign Reporting Requirements under Ordinance No. 410-93 for transparency and accountability.
• Ordinance No. 410-93 was not properly codified into the City’s Municipal Code City Council/RSA Agenda 310 Tuesday, April 9, 2024
3 Objective of the Amendment
• Not change current practices of campaign reporting, but to provide clear, precise guidelines for campaign reporting by candidates
City Council/RSA Agenda 311 Tuesday, April 9, 2024
4 Key Amendments to Chapter 2.05
Codifies existing provisions under Ordinance No. 410-93 and states the following:• Precise Filing Deadlines and Coverage Periods: Specification of submission timelines to eliminate ambiguities • 3rd Pre-Election Statements deadline is due four (4) calendar days before the election, no later than 2:00 p.m.• The coverage period starts the day after the 2nd pre-election statement and lasts until seven (7) calendar days before the election date.
• Acknowledgement of Reporting Requirements: Introduction of Section 2.05.015 requiring candidates to acknowledge receipt of Union City Municipal Code Chapter 2.05 instead of Ordinance No. 410-93 City Council/RSA Agenda 312 Tuesday, April 9, 2024
5 Recommendation
Staff and the City Attorney’s Office recommend that the City Council waive the full reading and introduce by title only the proposed ordinance amending Chapter 2.05 “Campaign Reporting Requirements” or provide any further direction as necessary.

City Council/RSA Agenda 313 Tuesday, April 9, 2024
Agenda Item
DATE: 4/9/2024
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 APPROVING AN AMENDED AND RESTATED

EMPLOYMENT AGREEMENT WITH JOAN MALLOY TO SERVE AS CITY
MANAGER AND APPROVING AN AMENDMENT TO THE CITY’S SALARY

SCHEDULE
Joan Malloy has served as City Manager since July 1, 2019 pursuant to an employment agreement and an amended and restated employment agreement that were previously authorized by the City Council. The City Councilapproved the amended and restated employment agreement in 2022 that is currently in effect.

Beginning January 2024, the City Council began the process of conducting a City Manager performance review and labor negotiations related to terms and conditions of employment. Following that process, the City Council authorized the City Attorney to prepare an amended and restated employment agreement (the “Agreement”).

The City Attorney recommends that the City Council adopt a resolution approving the Agreement with Joan Malloy to serve as City Manager. The proposed resolution authorizes Mayor Dutra-Vernaci to execute the Agreement on behalf of the City. The resolution also amends the City’s publicly available salary schedule.

STRATEGIC PLAN ALIGNMENT
This item is aligned with the following provision of the Strategic Plan: Goal B. Governance and Organization Effectiveness.

BACKGROUND
The City Council appointed Joan Malloy to serve as the City Manager beginning July 1, 2019 pursuant to a City Council-approved employment agreement. The City Council subsequently approved an amended and restated employment agreement in 2022. Ms. Malloy has not received any revisions to her compensation since City Council/RSA Agenda 314 Tuesday, April 9, 2024
July 1, 2022.

The City Council began the process of conducting the performance evaluation and labor negotiations for the City Manager in January 2024. The purpose of the labor negotiations was to consider revisions to the terms and conditions of employment for the City Manager. Mayor Dutra-Vernaci and the City Attorney served as labor negotiators on behalf of the City Council. Following the performance evaluation and labor negotiations, the City Council, though its labor negotiators, and the City Manager reached an agreement on revisions to the terms and conditions of employment which are reflected in the Agreement.

DISCUSSION
In evaluating Ms. Malloy’s terms of compensation, the City Councilconsidered compensation provided to the city managers of the following comparable cities: Fremont, Hayward, Livermore, Milpitas, Pleasanton, Redwood City, San Leandro and Newark. This evaluation revealed that Ms. Malloy is currently the lowest compensated city manager (in terms of total compensation) of the city managers in the above cities.

Additionally, Ms. Malloy is currently receiving totalcompensation approximately 13% below the City’s highest compensated department head, the Chief of Police.

The City Attorney has prepared the Agreement which would result in an increase in salary from $317,898 annually to $352,873 annually. Additionally, the Agreement would increase the City’s contribution to Ms.

Malloy’s ICMA/RC or Valic STARS deferred compensation program from $400 to $1,700 monthly. Both of these revisions will be effective beginning the first full pay period after January 1, 2024, consistent with compensation adjustments for the City’s other employees. Aside from minor revisions to address internal inconsistencies, there are no other changes between the Agreement and the most recent amended and restated employment agreement from 2022. Even with the proposed compensation revisions in the Agreement, Ms.

Malloy’s total compensation would still be approximately 1% below average (median) of the city managers of the comparable cities and less than 1% above the totalcompensation of the Chief of Police.

The other key provisions of the Agreement remain unchanged. Namely: Ms. Malloy’s employment as City Manager under the Agreement would continue until terminated by either Ms. Malloy or the City; Ms. Malloy’s employment would be at will; as an exempt employee under the Agreement, Ms. Malloy would not receive any overtime compensation; Ms. Malloy would receive a contribution of $800 per month into a CALGOVEBA health account; Ms. Malloy would continue to receive a City vehicle for use as well as other equipment necessary to discharge her duties; Ms. Malloy would be entitled to receive certain benefits that are received by all Department Heads, including: 160 hours of administrative leave annually, bereavement leave, holidays, 3.69 hours per pay period of sick leave, 200 hours of vacation leave annually (which is unlimited for Ms. Malloy), paid healthcare costs up to $2,000 per month, and City paid life insurance coverage of $100,000.

Under the Agreement, the City would also pay for reasonable expenses associated with Ms. Malloy’s professional development including attendance at professional conferences, continuing education, professional memberships, etc.

The Agreement can be terminated by voluntary resignation of Ms. Malloy upon 60 days’ notice or the Agreement can be terminated by the City for any reason (which would require the City to pay 6 months’ severance to Ms. Malloy, but only after signing a release of allclaims against the City).

The City Attorney prepared the Agreement based upon direction from the City Council.

FISCAL IMPACT
City Council/RSA Agenda 315 Tuesday, April 9, 2024
Approval of the Agreement would result in an annual increase in cost to the City of $57,037.89.

RECOMMENDATION
The City Attorney recommends that the City Council adopt the Resolution approving the amended and restated employment agreement with Joan Malloy to serve as City Manager and approving an amendment to the City’s Salary Schedule.

Prepared by:

Kristopher J. Kokotaylo, City Attorney
Submitted by:

Kristopher J. Kokotaylo, City Attorney
ATTACHMENTS:

Description Type
Draft Resolution Resolution
Amended and Restate Employment Agreement Exhibit
City Council/RSA Agenda 316 Tuesday, April 9, 2024
RESOLUTION NO. XXXX-24

RESOLUTION OF THE CITY COUNCIL OF THE CITY OF

UNION CITY APPROVING AN AMENDED AND

RESTATED EMPLOYMENT AGREEMENT WITH JOAN

MALLOY TO SERVE AS CITY MANAGER AND
APPROVING AN AMENDMENT TO THE CITY’S SALARY

SCHEDULE IN CONFORMANCE WITH CALIFORNIA
CODE OF REGULATIONS, TITLE 2, SECTION 570.5
WHEREAS, Joan Malloy has served as City Manager of Union City since July 1, 2019 pursuant to an employment agreement and a subsequently approved amended and restated employment agreement; and
WHEREAS, the City Council began the process of conducting a performance evaluation of Ms. Malloy, along with labor negotiations, in January 2024; and WHEREAS, Mayor Dutra-Vernaci and City Attorney Kristopher J. Kokotaylo served as labor negotiators for the purposes of negotiating an amended and restated employment agreement (the “Agreement”) with Ms. Malloy. The City Council evaluated comparable executive compensation within the City and in Alameda County and comparable cities and also considered Ms. Malloy’s prior work and experience with the City in providing direction to the City Attorney for the Agreement; and
WHEREAS, the City Council desires to execute the Agreement with Ms. Malloy that amends the terms and conditions of her employment as City Manager; and WHEREAS, the California Public Employees’ Retirement System (CalPERS) requires that all CalPERS employers list their compensation levels on one document, approved and adopted by the governing body, in accordance with California Code of Regulations section 570.5; and WHEREAS, the City of Union City desires to comply with CalPERS reporting requirement by amending the previously approved Salary Schedule to reflect compensation provided to Ms. Malloy as City Manager, effective the first full pay period after January 1, 2024.

NOW THEREFORE, BE IT RESOLVED by the City Council of the City of Union City as follows:

1. The City Council hereby approves the City Manager Amended and Restated Employment Agreement between the City of Union City and Joan Malloy, substantially in the form attached hereto as Exhibit “A,” and authorizes Mayor Dutra-Vernaci to execute the Agreement on behalf of the City, as approved by the City Attorney.

2. The City Council hereby approves an amendment to the City’s Salary Schedule to reflect the compensation provided to Joan Malloy as City Manager, effective the first full pay period after January 1, 2024, as reflected below:

Classification Title Step 1
City Manager $29,406
City Council/RSA Agenda 317 Tuesday, April 9, 2024
Resolution No. XXXX-24
Approval of Amended Employment Agreement for City Manager Joan Malloy and Salary Schedule Amendment

PASSED, APPROVED, AND ADOPTED by the City Council of the City of Union City at a regular meeting held on this 9
th day of April 2024 by the following vote:

AYES:

NOES:

ABSENT:

ABSTAIN:

APPROVED:

CAROL DUTRA-VERNACI
Mayor
ATTESTED: APPROVED AS TO FORM:

THAI NAM N. PHAM
City Clerk
KRISTOPHER J. KOKOTAYLO
City Attorney
Attachments:

1. Amended and Restated Employment Agreement between the City of Union City and Joan Malloy
City Council/RSA Agenda 318 Tuesday, April 9, 2024

EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED AGREEMENT (this “Agreement”), entered into this 9
th day of April, 2024, by and between THE CITY OF UNION CITY (“CITY”) and JOAN MALLOY (“MALLOY”) (collectively the “PARTIES”). This Agreement replaces the prior agreement between the PARTIES dated November 8, 2022, as previously amended.

RECITALS
CITY desires to employ MALLOY as City Manager of the City of Union City, California, and Executive Director of the Successor Agency to the Community Redevelopment Agency of the City Of Union City (“Successor Agency”); and MALLOY desires to serve in such capacity.

The City Council, as appointing authority, and MALLOY desire to agree in writing on the terms and conditions of MALLOY’s employment.

NOW THEREFORE, in consideration of the mutual covenants, promises, and representations hereinafter set forth, the PARTIES hereto do now agree as follows:

SECTION I
DUTIES
(a) CITY hereby agrees to employ MALLOY as City Manager of the CITY and Executive Director of the Successor Agency to perform the functions and duties specified by the general laws of the State of California and by the Union City Municipal Code and other ordinances and resolutions of the CITY, and to perform other legally permissible and proper duties and functions as the City Council or the Successor Agency may from time to time assign. (b) MALLOY commenced her duties on July 1, 2019.
(c) MALLOY agrees to devote her productive time, ability, and attention to the CITY’s business during the term of this Agreement. MALLOY shall not hold secondary employment, and shall be employed exclusively by the CITY. However, the CITY recognizes that MALLOY may actively participate in community affairs and shall be permitted to volunteer time, energy and expertise, and from time-to-time, to serve and hold office in charitable, nonprofit, public service, service club, religious, and/or community area organizations. In addition this Agreement shall not be construed to preclude incidental and occasional teaching, writing, or consulting performed by MALLOY.

SECTION II
TERM
The term of this Agreement shall be from the date approved by the City Council until terminated by either party in accordance with the provisions of Section III. MALLOY shall serve at the pleasure of the City Council.

City Council/RSA Agenda 319 Tuesday, April 9, 2024
The PARTIES recognize and affirm that: 1) MALLOY is an “at will” employee whose employment may be terminated by the CITY with or without cause; 2) there is no express or implied promise made to MALLOY for any form of continued employment; and 3) this Agreement is the sole and exclusive basis for an employment relationship between MALLOY and the CITY.

SECTION III

TERMINATION OF EMPLOYMENT AND SEVERANCE
City Manager is an at-will employee serving at the pleasure of the City Council as provided in Government Code Section 36506. The position of City Manager is an FLSA-exempt position. MALLOY’s employment as City Manager may be terminated by one of the following means:
(a) Voluntary Resignation: MALLOY may voluntarily resign by delivering a letter of resignation to the City Council not less than 60 days prior to the effective date of resignation.
(b) Termination or Forced Resignation by City Council: The City Council may terminate the employment of MALLOY in accordance with the provisions of the Union City Municipal Code and State law, by giving written notice not less than 60 days prior to the effective date of termination, or by causing MALLOY’s resignation by a majority of the City Council requesting MALLOY to resign and MALLOY then volunteering to resign after such action by the City Council. (c) Severance: In the event MALLOY is terminated from employment by the CITY Council without cause, or is caused to resign by the City Council pursuant to subsection (b) above without cause, and contingent upon MALLOY’s execution of a comprehensive general release and waiver of all claims of any nature, known or unknown, by MALLOY against the CITY, MALLOY shall be entitled to six (6) month’s severance pay of her annual total compensation, including salary and the value of her benefits. In no event will MALLOY be entitled to a severance agreement absent execution of a comprehensive general release and waiver of all claims in a form acceptable to the City. Such severance shall be paid in full upon the effective date of her termination. MALLOY may elect to receive continued medical/health insurance benefits, in lieu of cash payment for equivalent value thereof.
(d) Release for Cause: This provision does not confer any property rights on MALLOY, as she remains an at-will employee. The phrase “termination for cause” only pertains to MALLOY’s eligibility for severance as described in this Section. A “termination for cause” may include, but shall not be limited to, the following:
(i) Purposefully violate administrative policies and procedures; (ii) Failure to properly perform assigned duties;
City Council/RSA Agenda 320 Tuesday, April 9, 2024
(iii) Theft of CITY property;
(iv) Insubordination;
(v) Conviction of a felony or misdemeanor with a nexus to the workplace;
(vi) Unauthorized absence from employment;
(vii) Failure to maintain satisfactory working relationships with other employees or the public;
(viii) Improper use of CITY funds;
(ix) Unauthorized use of CITY property;
(x) Willful misconduct or malfeasance;
(xi) Any act of moral turpitude or dishonesty; and
(xii) Other failure of good behavior either during or outside of employment such that the Manager’s conduct causes discredit to the City.
(e) Abuse of Office: Pursuant to Government Code section 53243.2, any cash settlement related to the termination of this Agreement received by MALLOY from the CITY shall be fully reimbursed to the CITY if MALLOY is convicted of a crime involving an abuse of her office or position as defined in California Government Code section 53243.4.

SECTION IV

RESERVED

SECTION V

COMPENSATION
(a) Effective the first full pay period after January 1, 2024, CITY agrees to pay MALLOY for her services rendered at an annual base salary of $352,873, which sum shall be payable in installments at the same time as other employees of the CITY are paid, and subject to customary withholdings.

In addition, CITY agrees to consider adjusting said base salary and other benefits of MALLOY, in the CITY’s sole discretion, subject to the performance evaluation process described in Section VI of this Agreement, which shall be merit based. Provided that MALLOY receives a satisfactory performance evaluation pursuant to Section VI of this Agreement, the CITY will endeavor, in order to avoid compaction, to maintain a minimum of a five percent City Council/RSA Agenda 321 Tuesday, April 9, 2024
differential in annual base salary between Department Heads, including the Chief of Police, and MALLOY. Any action to increase salary or benefits shall comply with Government Code Section 3511.2(a), Government Code Section 54953(c)(3), and Government Code Section 54956(b).
(b) Effective the first full pay period after January 1, 2024, MALLOY shall be entitled to receive the following benefits provided to the CITY’s Department Heads pursuant to the Compensation and Benefit Plan for Unrepresented Employees, updated October 10, 2023 (the “Compensation and Benefit Plan”): SECTION 4.00 LEAVE, SECTION 5.00 INSURANCE COVERAGE, SECTION 6.00 RETIREMENT BENEFITS (CalPERS).

The maximum accrual limits for vacation pursuant to SECTION 4.00.K of the Compensation and Benefit Plan shall not apply to MALLOY. Any relevant subsequent revisions to the above identified Sections of the Compensation and Benefit Plan, with the exception of Section 4.00.K, shall apply to MALLOY if approved by the City Council.

Any discrepancy or conflict between the Department Heads compensation and this Agreement shall be assumed to be intended and this Agreement shall take precedence. (c) MALLOY may receive a City-owned vehicle to use in discharging her duties as City Manager and for her personal use. CITY shall provide for all maintenance, repairs, fuel, insurance, and periodic replacement necessary for said City-owned vehicle. MALLOY may also receive other equipment necessary to perform her duties including a City-issued cellular phone and laptop computer which can be used for discharging her duties and for her personal use. (d) Effective the first full pay period after January 1, 2024, CITY shall contribute $1700 per month in MALLOY’s name to the ICMA/RC or Valic STARS deferred compensation program (as provided in SECTION 5.00.C of the Compensation and Benefit Plan) and $800 per month in MALLOY’s name to the California Government VEBA program (as provided in SECTION 5.00.E of the Compensation and Benefit Plan).

SECTION VI

EVALUATION OF PERFORMANCE
The City Council shall review and evaluate the performance of MALLOY annually or more frequently if requested by the City Council in its sole discretion. Said review and evaluation shall be in accordance with specific criteria developed by the City Council with consultation from MALLOY. Said criteria may be added to or deleted from as the City Council may from time to time determine, in consultation with MALLOY. Further, the City Council shall provide MALLOY with a summary written statement of the findings of the City Council and provide an adequate opportunity for MALLOY to discuss her evaluation with the City Council.

City Council and MALLOY shall annually hold a facilitated meeting to define such goals and performance objectives which they determine necessary for the proper operations of the CITY and in the attainment of the City Council’s policy objectives, and shall further establish a relative priority among those various goals and objectives, said goals and objectives to be reduced to writing. They shall generally be reasonably attainable within the time limitations as specified in the annual operating and capital budgets and appropriations provided.

City Council/RSA Agenda 322 Tuesday, April 9, 2024

SECTION VII

PHYSICAL EXAMINATION
It is recognized to be in the best interest of both PARTIES that MALLOY maintain good health and the physical ability to fulfill her duties as City Manager. To this end, the CITY will pay the cost of one complete physical examination conducted annually by the physician of MALLOY’s choice.

SECTION VIII

PROFESSIONAL DEVELOPMENT
CITY acknowledges its interest in the continuing professional development of MALLOY and agrees to pay reasonable expenses associated with attendance at professional conferences, continuing education, professional memberships, books and dues. CITY acknowledges MALLOY’s right to engage in other professional activities so long as they do not interfere or conflict with MALLOY’s duties as City Manager and are done during time in which MALLOY is on leave or during normal nonworking hours.

SECTION IX

HOLD HARMLESS AND INDEMNIFICATION
CITY shall defend, hold harmless, and indemnify MALLOY against any tort, professional liability claim or demand, or other legal action, whether groundless or otherwise, arising out of an alleged act or omission of MALLOY made in the course of her performance of duties as City Manager. CITY shall pay the amount of any settlement or judgment rendered therefrom, to the extent specified in the California Government Code.

SECTION X

MISCELLANEOUS
(a) Binding Agreement: This Agreement shall be binding on the heirs, successors and assigns of the PARTIES.
(b) The Rights of PARTIES: Unless expressly set forth in this Agreement, nothing in this agreement shall abrogate any rights, responsibilities, benefits, or privileges to which either party would otherwise be entitled.
(c) Amendment: This agreement may be amended only in writing by mutual agreement of the PARTIES.
(d) State Law: The rights and obligations of the PARTIES shall be governed by the laws of the State of California.
(e) Abuse of Office: Government Code sections 53243, 53243.1, 53243.2, and 53243.3 are incorporated by this reference as if fully set forth herein. (f) Recitals: Recitals are incorporated by reference into this agreement.

City Council/RSA Agenda 323 Tuesday, April 9, 2024
(g) Failure to Act: Failure to exercise any right or remedy shall not act as a waiver to exercise that right.
(h) Entire Agreement: This Agreement contains the entire agreement between the PARTIES and supersedes any prior agreement.
(i) Severability: Should any paragraph, subparagraph, sentence clause or word included in this Agreement be found invalid by a court of competent jurisdiction, the balance of this Agreement shall remain in full force and effect.
(j) Attorneys’ Fees: The prevailing party of any dispute over the terms and conditions of this Agreement is entitled to attorney fees. (k) Assignment: This Agreement is not assignable by either CITY or MALLOY.

IN WITNESS WHEREOF, the PARTIES hereto have hereunto affixed their signatures as of the date and year first above written.

ATTEST:

THAI NAM N. PHAM
City Clerk
APPROVED AS TO FORM:

KRISTOPHER J. KOKOTAYLO
City Attorney

CITY OF UNION CITY
By:

CAROL DUTRA-VERNACI
Mayor

JOAN MALLOY
City Council/RSA Agenda 324 Tuesday, April 9, 2024