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OPERATING AND MANAGEMENT AGREEMENT BETWEEN THE CITY OF UNION CITY AND UNION LANDING PROPERTY OWNERS’ ASSOCIATION
THIS OPERATING AND MANAGEMENT AGREEMENT (“Agreement”) is made and entered into as of January 13, 2026, (“Effective Date”), by the City of Union City, a California municipal corporation (City), and the Union Landing Property Owners’ Association, a California non-profit mutual benefit corporation ("ULPOA").
RECITALS
A. On July 8, 2025, the City Council adopted Resolution No. 2025-095 declaring the results of an assessment ballot proceeding for the Union Landing Property and Business Improvement District ("District") and also adopted Resolution No. 2025- 096_to renew the District and to levy and collect assessment for Fiscal Year 2025- 2026 in accordance with the provisions of the Property and Business Improvement District Law of 1994, California Streets and Highways Code section 36600 et seq. ("1994 Law").
B. The District is subject to a Management District Plan (“MDP”), which identified the ULPOA as the owners’ association for the District and established the duties and responsibilities of the ULPOA with regard to management of the District.
C. The City Council adopted Resolution No. 2025-096 approving the MDP.
D. The District’s assessment was renewed for a period of July 1, 2025 until June 30, 2030, with District services authorized to continue until December 31, 2030.
E. Streets and Highways Code section 36651 authorizes the City to contract with an owners' association to provide the improvements, maintenance, and activities specified in the MDP.
F. The ULPOA has the expertise, experience, and personnel necessary to provide the services specified in the MDP, except as otherwise provided for herein.
G. The City desires, and the ULPOA agrees, to have the ULPOA provide services to the City on the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and conditions herein as set forth, and for other valuable consideration the sufficiency of which is hereby acknowledged, the City and the ULPOA agree as follows:
1. Incorporation of Recitals. The Recitals set forth above are incorporated in full and made a part of this Agreement by this reference.
2. Term of Agreement. This Agreement shall commence on January 1, 2026, and will terminate on December 31, 2030, unless terminated earlier in accordance with the terms of this Agreement.
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3. Services.
(A) Owners’ Association. The ULPOA shall serve as the District Owners' Association in accordance with the provisions of the MDP, the 1994 Law, as may be amended, and the Resolution renewing the District.
(B) ULPOA Provided Services. The ULPOA shall provide the Marketing and Administration services identified in the MDP, except as otherwise provided for herein. The ULPOA agrees to abide by all rules and regulations as established by this Agreement, the MDP, and applicable law in the provision of such services.
(C) Security Services. The City shall provide the Security Services identified in the MDP. The City reserves to itself any rights and obligations relating to the provision of any and all police and/or governmental law enforcement services, and the City has the sole and absolute discretion to reassign the officers providing the Security Services identified in the MDP to other areas for reasonable periods of time as needed for emergency or critical law enforcement purposes. This Agreement does not, and is not intended to, include any City warranty, promise, or guaranty, either express or implied, of any kind or nature whatsoever, in favor of the ULPOA, any agent, or any person present within the boundaries of the District, that any enhanced police protection provided by the City under the terms and conditions of this agreement will result in the reduction of criminal activity within the boundaries of the District. (D) Annual Report & Budget. The ULPOA shall prepare, or cause to be prepared, an annual report pursuant to Streets and Highways Code section 36650, as well as a proposed budget for the coming calendar year, and provide both to the City no later than May 15th. The City and ULPOA shall meet annually prior to Council approval of the proposed ULPOA budget to review and adjust.
(E) Meetings. The ULPOA shall conduct at least one (1) meeting annually with the property owners within the District, and such other meetings as the ULPOA deems necessary. All meetings of the ULPOA Board of Directors, and any committees thereof, shall be conducted in accordance with the requirement of the Ralph M. Brown Act, Government Code section 54950 et seq.
4. Budget and Financial Obligations.
(A) Collection of Assessments. The City will coordinate the annual levy, placement and collection of all assessments for the District. The City shall provide general assistance, clarification, or information to the ULPOA, the assessed parties and the public at large. (B) Disbursement. The City will disburse to ULPOA, into such account identified by the ULPOA, one hundred percent (100%) of all District assessments, including related late fees and penalties as well as the assessment due from the City for City-owned parcels within the District, actually received by City. The City shall make such disbursements to ULPOA within thirty (30) calendar days of receipt of funds from the Alameda County Auditor/Controller. While most of the revenue from the District’s assessments is received by the City in December and April, the City cannot guarantee when such funds will be
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received from the Alameda County Auditor/Controller. Neither the City's General Fund, nor any other City fund, revenue source, or any other City monies, shall be transferred to the ULPOA by the City. The City is not obligated to loan or procure funding for ULPOA or the District. All Parties acknowledge and agree that any unpaid assessments in the District are not a debt of the City, nor a legal or equitable pledge, charge, lien or encumbrance upon any City property or upon City income, receipts or revenues.
(C) General Benefit. The District’s assessments provide both special benefit to the owners of property within the District, and a general benefit. The City shall pay the annual contribution for the general benefit, as specified in the MDP, to the ULPOA no later than October 31st of each year.
(D) Security Services. Once per calendar quarter, the City will send an invoice to the ULPOA for twenty-five percent (25%) of the budgeted costs of security services provided by the City pursuant to the MDP. ULPOA shall pay the City the amount of such invoice within thirty (30) days of receipt. Following the end of the calendar year, the City will provide documentation showing actual expenditures. The City will refund any portion of the budgeted cost of security services that was not expended.
(E) City Administrative Costs.
(i) Once per calendar quarter, the City will send an invoice to the ULPOA for the actual cost of all administrative services related to the District and provided by third parties.
ULPOA shall pay the City the amount of such invoice within thirty (30) days of receipt. The City shall include documentation of such costs with the invoice. (ii) Once per calendar year, the City will send an invoice to the ULPOA for the estimated costs of administrative services provided by the City staff. Such administrative costs shall not exceed five percent (5%) of the total District assessment for that calendar year. ULPOA shall pay the City the amount of such invoice within thirty (30) days of receipt.
(iii) During the first quarter of calendar year of 2026, the City will invoice the ULPOA for all costs the City incurred and paid for on behalf of the ULPOA during the transition period of July 1, 2025 through December 31, 2025, including the fees paid to NBS for the preparation of the new 5-Year MDP. ULPOA shall pay the City the amount of such invoice on or before June 15, 2026.
(F) Tax Return. The ULPOA shall provide copies of all filed state and federal tax returns to the City within ten (10) days of filing. The City, at its discretion, may request any related documentation pursuant to Section 5.
5. Documents and Records.
(A) At any time during normal business hours, the City shall have the right to demand, and the ULPOA shall make available to the City for examination, at the offices of the ULPOA, any and all ledgers, books of accounts, invoices, vouchers, cancelled checks, and other records or documents evidencing or relating to all matters covered by this Agreement. The
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ULPOA shall permit (and shall require that its subcontractors permit) the City (at the City's sole expense) to audit all invoices, materials, payrolls, records of personnel, and other data and media relating to all matters covered in this Agreement.
(B) The ULPOA shall (and shall require its subcontractors to) maintain such data and records for a period of three (3) years following the termination of this Agreement. All such data and records shall be kept at the ULPOA's (or the relevant subcontractor's) regular place of business and shall be subject to the review and audit provisions, above. (C) Notwithstanding the foregoing, upon the termination of this Agreement for any reason, the City may request that the ULPOA turn over to the City the original of all such data and records. If the ULPOA is required to turn over such data and records to the City, it will comply with reasonable promptness; however, upon delivery of the data and records to the City-designated liaison, the ULPOA's retention and audit responsibilities with respect to such data and records shall terminate and the ULPOA shall not thereafter be liable for any claim of loss or damage arising from or related to the availability or condition of the data or records.
The ULPOA may retain copies of all data or records turned over to the City. (D) All reports, data, maps, models, charts, studies, surveys, photographs, memoranda, plans, studies, specifications, records, files, or any other documents or materials, in electronic or any other form, that ULPOA prepares or obtains pursuant to this Agreement and that relate to the matters covered hereunder shall be the property of the City. ULPOA hereby agrees to deliver those documents to the City upon termination of the Agreement. It is understood and agreed that the documents and other materials, including, but not limited to, those described above, prepared pursuant to this Agreement are prepared specifically for the City and are not necessarily suitable for any future or other use. (E) The ULPOA must maintain and disclose any District-related records in accordance with the California Public Records Act.
6. Indemnification.
(A) The ULPOA shall indemnify, defend with counsel acceptable to City, and hold harmless City and its officers, officials, employees, agents and volunteers from and against any and all liability, loss, damage, claims, expenses, and costs (including without limitation, attorney’s fees and costs and fees of litigation) (collectively, “Liability”) of every nature arising out of or in connection with ULPOA’s performance under this Agreement, or its failure to comply with any of its obligations contained in this Agreement or applicable law, except such Liability caused by the sole negligence or willful misconduct of City. (B) The ULPOA’s obligation to defend and indemnify shall not be excused because of the ULPOA’s inability to evaluate Liability or because the ULPOA evaluates Liability and determines that the ULPOA is not liable to the claimant. The ULPOA must respond within 30 days to the tender of any claim for defense and indemnity by the City, unless this time has been extended by the City. If the ULPOA fails to accept or reject a tender of defense and indemnity within 30 days, in addition to any other remedy authorized by law, as much of the money due the ULPOA under and by virtue of this Agreement as shall reasonably be considered necessary by the City, may be retained by the City until disposition has been made
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of the claim or suit for damages, or until the ULPOA accepts or rejects the tender of defense, whichever occurs first.
7. Insurance.
(A) The ULPOA, at its own cost and expense, unless otherwise specified below, shall procure the types and amounts of insurance listed below against claims for injuries to persons or damages to property that may arise from or in connection with the performance of the work hereunder by the ULPOA and its agents, representatives, employees, and subcontractors. Consistent with the following provisions, ULPOA shall provide proof satisfactory to City of such insurance that meets the requirements of this section and under forms of insurance satisfactory in all respects, and that such insurance is in effect prior to the execution of this agreement and prior to each succeeding calendar year thereafter. ULPOA shall maintain the insurance policies required by this section throughout the term of this Agreement.
ULPOA shall maintain all required insurance listed herein for the duration of this Agreement.
COVERAGE TYPE OF INSURANCE MINIMUM
LIMITS
A Commercial General
Liability
Premises Liability; Products
and Completed Operations;
Contractual Liability;
Personal Injury and
Advertising Liability.
$1,000,000 per occurrence;
Bodily Injury and Property
Damage
$2,000,00 in the aggregate;
Commercial general
coverage shall be at least as
broad as Insurance Services
Office Commercial General
Liability occurrence form
CG 0001 (most recent
edition) covering
comprehensive General
Liability on an “occurrence”
basis.
B Commercial or Business
Automobile Liability
All owned vehicles, hired or
leased vehicles, non-owned,
borrowed and permissive
uses. Personal Automobile
Liability is acceptable for
individual contractors with
no transportation or hauling
related activities.
$1,000,000 per occurrence;
Any Auto; Bodily Injury and
Property Damage. Automobile
coverage shall be at least as
broad as Insurance Services
Office Automobile Liability
form CA 0001 (most recent
edition), Code 1 (any auto). No
endorsement shall be attached
limiting the coverage.
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C Workers’ Compensation
(WC) and Employers
Liability (EL)
Required for all contractors
with employees.
WC: Statutory Limits
EL: $100,000 per
accident for bodily injury or
disease. ULPOA may rely on
a self-insurance program to
meet those requirements, but
only if the program of selfinsurance complies fully
with the provisions of the
California Labor Code. The
insurer shall waive all rights
of subrogation against the
City and its officers,
officials, employees, and
volunteers for loss arising
from work performed under
this Agreement.
(B) Additional requirements. Each of the following shall be included in the insurance coverage or added as a certified endorsement to the policy:
(1) All required insurance shall be maintained during the entire term of the Agreement with the following exception: Insurance policies and coverage(s) written on a claimsmade basis shall be maintained during the entire term of the Agreement and until three (3) years following termination and acceptance of all work provided under the Agreement, with the retroactive date of said insurance (as may be applicable) concurrent with the commencement of activities pursuant to this Agreement. (2) All insurance required above with the exception of Personal Automobile Liability, Workers’ Compensation and Employers Liability, shall be endorsed to name as additional insured: City of Union City, its City Council, and all City officers, officials agents, employees, volunteers and representatives.
(3) For any claims related to this Agreement or the work hereunder, the ULPOA’s insurance coverage shall be primary insurance as respects the City, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, or volunteers shall be excess of the ULPOA’s insurance and shall not contribute with it.
(4) Each insurance policy required by this clause shall be endorsed to state that coverage shall not be canceled by either party, except after 30 days’ prior written notice has been provided to the City.
(5) Certificates of Insurance. Before commencing operations under this Agreement, ULPOA shall provide Certificate(s) of Insurance and applicable insurance endorsements, in a form satisfactory to City, evidencing that all required insurance
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coverage is in effect. The City reserves the right to require the ULPOA to provide complete, certified copies of all required insurance policies. (6) Subcontractors. The ULPOA shall include all subcontractors as an insured (covered party) under its policies or shall furnish separate certificates and endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated herein.
(C) All Policies Requirements.
(1) Acceptability of insurers. All insurance required by this section is to be placed with insurers with a Bests' rating of no less than A:VII. Insurance shall be maintained through an insurer with a minimum A.M. Best Rating of A- or better, with deductible amounts acceptable to the City. Acceptance of ULPOA’s insurance by City shall not relieve or decrease the liability of ULPOA hereunder. Any deductible or self-insured retention amount or other similar obligation under the policies shall be the sole responsibility of the ULPOA.
(2) Deductibles and Self-Insured Retentions. ULPOA shall disclose to and obtain the written approval of City for the self-insured retentions and deductibles before beginning any of the services or work called for by any term of this Agreement. At the option of the City, either: the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the City, its officers, officials, employees, and volunteers; or the ULPOA shall provide a financial guarantee satisfactory to the City guaranteeing payment of losses and related investigations, claim administration and defense expenses.
(3) Wasting Policies. No policy required by this Section 4 shall include a “wasting” policy limit (i.e. limit that is eroded by the cost of defense). (4) Waiver of Subrogation. ULPOA hereby agrees to waive subrogation which any insurer or contractor may require from vendor by virtue of the payment of any loss.
ULPOA agrees to obtain any endorsements that may be necessary to affect this waiver of subrogation. The Workers’ Compensation policy shall be endorsed with a waiver of subrogation in favor of the entity for all work performed by the consultant, its employees, agents, and subcontractors.
8. Termination.
(A) General. The City has and reserves the right to suspend, terminate or abandon the execution of any work by ULPOA without cause at any time after the adoption of a resolution of intention to disestablish the District pursuant to applicable law and upon providing ULPOA a copy of the adopted resolution of intention. In the event the City disestablishes the District, ULPOA shall be entitled to retain District revenues only for paying the ULPOA's current liabilities of the District. ULPOA shall refund to City any remaining District revenues or any revenues derived from the sale of assets acquired with District revenues. Any retention of District revenues by ULPOA shall comply with the 1994 Law.
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(B) Termination for Default. If either party to this Agreement fails to perform or adequately perform any material obligation required by this Agreement, that failure shall constitute a default. The non-defaulting party shall promptly give the defaulting party written notice of the occurrence of the default and shall allow the defaulting party a reasonable opportunity thereafter to cure the default. Failure to cure the default within such reasonable period of time shall entitle the non-defaulting party to terminate this Agreement in accordance with this Section, or to suspend the Agreement until the default is cured. (C) No Waiver of Other Remedies. The rights and remedies of the Parties enumerated in this Section are cumulative and shall not limit the Parties' rights under any other provision of this Agreement or applicable law, or otherwise waive or deny any right or remedy, at law or in equity, existing as of the date of this Agreement or hereinafter enacted or established, that may be available to the non-defaulting party against the defaulting party.
9. Representatives & Notices.
(A) Representatives.
i. The ULPOA Designated Representatives is Bill Schrader, ULPOA Board President.
The ULPOA Designated Representative shall have the ability to bind the ULPOA.
The ULPOA may identify a new designated representative at any time by providing written notice to the City.
ii. The City’s Designated Representative is Gloria Ortega, Economic Development Manager. The City’s designated representative shall serve as the City’s liaison to the ULPOA and District. Only the City Manager shall have the ability to bind the City. (B) Notices. Any notice, demand, request, consent or approval that either party is required to give the other pursuant to this Agreement, shall be in writing and may be given by either: (i) personal service, (ii) national overnight courier such as FedEx, or (iii) certified United States mail, postage prepaid, return receipt requested. Notice shall be effective upon personal delivery or delivery to the addresses specified below, as reflected on the receipt of delivery or return receipt, as applicable.
Union Landing Property Owners’ Association
Attn: Bill Schrader
164 Oak Road
Alamo, CA 94507
All written notices to City shall be sent to:
Joan M. Malloy Kristopher J. Kokotaylo,
City Manager City Attorney
City of Union City City of Union City
34009 Alvarado Niles Rd. with a copy to 34009 Alvarado Niles Rd.
Union City, CA 94587 Union City, CA 94587
10. Miscellaneous.
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(A) Independent Contractor. At all times during the term of this Agreement, ULPOA shall be an independent contractor and shall not be an employee of City. City shall have the right to control ULPOA only insofar as the results of ULPOA's services rendered pursuant to this Agreement and assignment of personnel pursuant to Subparagraph 1.3; however, otherwise City shall not have the right to control the means by which ULPOA accomplishes services rendered pursuant to this Agreement. Notwithstanding any other City, state, or federal policy, rule, regulation, law, or ordinance to the contrary, ULPOA and any of its employees, agents, and subcontractors providing services under this Agreement shall not qualify for or become entitled to, and hereby agree to waive any and all claims to, any compensation, benefit, or any incident of employment by City, including but not limited to eligibility to enroll in the California Public Employees Retirement System (CalPERS) as an employee of City and entitlement to any contribution to be paid by City for employer contributions and/or employee contributions for CalPERS benefits.
(B) ULPOA Not an Agent. Except as City may specify in writing, ULPOA shall have no authority, express or implied, to act on behalf of City in any capacity whatsoever as an agent.
ULPOA shall have no authority to bind the City in any manner whatsoever. (C) Governing Law. The laws of the State of California shall govern this Agreement. (D) Compliance with Applicable Laws. ULPOA and any subcontractors shall comply with all laws applicable to the performance of the work hereunder. Without limiting the foregoing, ULPOA shall ensure that all contractors hired to perform Public Work, as defined in the Labor Code, and paid for with funds received pursuant to this Agreement, shall be paid prevailing wages in compliance with all applicable requirements of Labor Code section 1720 et seq. (E) Nondiscrimination and Equal Opportunity. ULPOA shall not discriminate, on the basis of a person’s race, religion, color, national origin, age, physical or mental handicap or disability, medical condition, marital status, sex, or sexual orientation, against any employee, applicant for employment, subcontractor, bidder for a subcontract, or participant in, recipient of, or applicant for any services or programs provided by ULPOA under this Agreement. ULPOA shall comply with all applicable federal, state, and local laws, policies, rules, and requirements related to equal opportunity and nondiscrimination in employment, contracting, and the provision of any services that are the subject of this Agreement, including but not limited to the satisfaction of any positive obligations required of ULPOA thereby. (F) Advertising or Publicity. ULPOA shall not use, reproduce or copy the seal of the City and shall not represent the City in an official capacity as spokesperson or officer or agent or use the name City of Union City, or the names of the City’s officers, officials, employees or agents, in advertising or publicity releases or otherwise without securing the prior written consent of City in each instance.
(G) Amendments. The parties may amend this Agreement only by a writing signed by all the parties. However, this Agreement shall be subject to any amendments to the MDP adopted by the City Council.
(H) Venue. In the event that either party brings any action against the other under this Agreement, the parties agree that trial of such action shall be vested exclusively in the state courts of
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California in the County of Alameda or in the United States District Court for the Northern District of California.
(I) Severability. If a court of competent jurisdiction finds or rules that any provision of this Agreement is invalid, void, or unenforceable, the provisions of this Agreement not so adjudged shall remain in full force and effect. The invalidity in whole or in part of any provision of this Agreement shall not void or affect the validity of any other provision of this Agreement.
(J) No Implied Waiver of Breach. The waiver of any breach of a specific provision of this Agreement does not constitute a waiver of any other breach of that term or any other term of this Agreement. No waiver of any term hereunder shall be binding unless in writing. (K) Successors and Assigns. The provisions of this Agreement shall inure to the benefit of and shall apply to and bind the successors and assigns of the parties. (L) Headings. All headings are for convenience only and shall not affect the interpretation of this Agreement.
(M)Authorized Parties. The individuals executing this Agreement represent and warrant that they have the full and complete authorization and legal authority to execute the Agreement. (N) Non-Assignment. ULPOA may not assign the obligations under this Agreement, whether by express assignment or by sale of the company, nor any monies due or to become due under this Agreement, without City's prior written approval. Any assignment in violation of this paragraph shall constitute a default and is grounds for termination of this Agreement at the City's sole discretion.
(O) Drafting Ambiguities. The Parties acknowledge that they have the right to be advised by legal counsel with respect to the negotiations, terms and conditions of this Agreement, and the decision of whether to seek advice of legal counsel with respect to this Agreement is the sole responsibility of each party. This Agreement shall not be construed in favor of or against either party by reason of the extent to which each party participated in the drafting of the Agreement.
(P) No Third-Party Beneficiaries. Except as may be specifically set forth in this Agreement, none of the provisions of this Agreement are intended to benefit any third party not specifically referenced herein. No party other than the City and the ULPOA shall have the right to enforce any of the provisions of this Contract.
IN WITNESS WHEREOF, this Agreement is executed by the City and the ULPOA as of the Effective Date.
CITY OF UNION CITY ULPOA
____________________________ ______________________________ JOAN MALLOY, CITY MANAGER Bill Schrader, President
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ATTEST:
________________________________
THAI NAM N. PHAM, CITY CLERK
APPROVED AS TO FORM:
____________________________
KRISTOPHER J. KOKOTAYLO
CITY ATTORNEY