CC 02-21-2024 Item No. 6 Ratifying Accounts Payable December 29, 2023, January 12, 19, 26, 2024_Written CommunicationsCC 2-21-2024
Item No. 6
Ratifying Accounts
Payable for December
29, 2023, January 5,
2024, January 12,
January 19, and January
26
Written Communications
From:Rhoda Fry
To:City Clerk; City Council
Subject:City Council 2/21/2024 Agenda #6
Date:Tuesday, February 20, 2024 9:00:36 AM
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Hi City Clerk,
Please add the following to my comment on City Council 2/21/2024 Agenda #6
Regarding the BMR Housing Fund #265 (the Below Market Rate Housing Fund) in the
Accounts Payable agenda item #6 for City Council February 21, 2024, and going back to April
of last year,
~$170K BMR money has been used for Legal Fees and the Settlement with California
Housing Defense Fund and YIMBY (an organization with which Vice-Mayor Fruen has been
associated).
The BMR Housing Fund 265 is funded by development mitigation fees with the understanding
that BMR funds shall be used exclusively for BMR housing expenses.
Legal Fees and Settlement money are not BMR housing expenses.
WHY?
Requests:
1. Please do not approve Accounts Payable until the BMR issue is resolved
2. Please look at all transactions charged to BMR, adjust accordingly, return to council,
and explain how funds were misallocated.
3. Please make sure that billings from law firms are split up in accounts payable so that it
can be easily determined as to which fees went to litigation, housing element etc…
4. Please explain the mechanism by which City staff gave away the public’s right to
CEQA for the Housing Element without public input
Thanks,
Rhoda Fry
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From:Rhoda Fry
To:City Clerk; City Council
Cc:City Attorney"s Office
Subject:Feb 21, 2024 Please remove #6 from Consent Calendar
Date:Monday, February 19, 2024 6:27:16 PM
Attachments:Questions about Use of BMR Housing Fund 265.pdf
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Dear City Clerk,
Please print attachment as public comment for Agenda #6 for Feb 21, 2024 City Council
Meeting
Thanks,
Rhoda Fry
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Page 1 of 4
City Council February 19, 2024 Please Remove Agenda #6 from the Consent Calendar
Please do not approve Agenda #6 Ratifying Accounts Payable until questions about the use of
BMR Housing Fund 265 are answered. Also, please request staff to examine all uses of BMR
Housing Fund 265 and report back at the next public City Council meeting.
Why was BMR Housing Fund 265 used for the City’s legal costs to
1. Settle with California Housing Development Fund and YIMBY?
2. Defend itself against California Housing Development Fund and YIMBY?
The BMR Housing Fund 265 is funded by development mitigation fees with the
understanding that these funds shall be used exclusively for BMR housing expenses.
What was the Overall Cost to the City of the Lawsuit Anyway?
1. City contracted with Goldfarb and Lipman up to $50K. Billings from April 2023 through
January 2024 add up to nearly $160K. How much of this was related to the lawsuit?
2. City paid California Housing Development Fund ($9000) and YIMBY ($6000)
3. Staff time
4. Was a unilateral decision made by staff to forgo CEQA, which had been promised to the
Citizens of Cupertino? When did City Council get a say? (Vice-Mayor Fruen, who is associated
with YIMBY was quoted in the news, “the city is right to welcome the result”)
265 BMR Housing Fund Definition (FY 2023-24 Adopted Budget page 100)
• Accounts for activities related to the Below Market Rate (BMR) Housing Program.
• Revenues include BMR Housing Mitigation Fees collected from developers to
mitigate the impact of housing needs.
• Monies in this fund are governed by the program's rules.
BMR Program Rules Restrict Fees to affordable housing (RESOLUTION NO. 20.055 page 4)
2.2.2 Permitted Use of Fees
A. Affordable housing mitigation fees deposited into the BMR AHF shall
only be used for the provision of affordable housing in Cupertino.
B. The options for use of the fee revenue include, but are not limited to
the following:
1. BMR Program Administration
2. Land Acquisition
3. New Construction
4. Acquisition and/or rehabilitation of buildings for permanent
affordability
5. Preserving “at-risk” BMR Units
6. Substantial Rehabilitation
7. Rental Operating Subsidies
8. Down Payment Assistance
9. Direct gap financing
10. Fair Housing
C. A portion of the BMR AHF will be targeted to benefit the following
groups, to the extent that these target populations are found, to be
consistent with the needs identified in the nexus study:
1. Extremely low-income households and
2. Persons with special needs (such as the elderly, victims of
domestic violence, and the disabled, including persons with
developmental disabilities).
Page 2 of 4
Settlement Fees in Accounts Payable Charged to BMR Fund
Selected Payments to Goldfarb & Lipman from Accounts Payable
Transactions charged to BMR Housing. These billings did not show up in PRA, perhaps they are
for different services.
Transactions split between BMR Housing and General Fund. These billings did not show up in
PRA, perhaps they are for different services.
Transaction charged to General Fund. Looks correct.
Do individual billings contain lawsuit services and other services?
Transaction charged to BMR Housing.
Page 3 of 4
Transactions charged to BMR Housing. Invoice 465713 not part of PRA. Perhaps it is for other
services. But all have the same description.
Transactions charged to BMR Housing.
Transactions charged to BMR Housing.
Transactions charged to BMR Housing.
Transactions charged to BMR Housing.
Note – 470095 & bills were not included in PRA. Perhaps these applied to other services? By
looking at A/P, it should be possible to determine what costs are attributable what services.
Page 4 of 4
Note – 463698 & 469494 bills were not included in PRA. Perhaps these applied to other services?
By looking at A/P, it should be possible to determine what costs are attributable what services.
Goldfarb & Lipman Billing Summary obtained by transcribing receipts provided by PRA.
CITY OF CUPERTINO/ CALIFORNIA HOUSING DEVELOPMENT FUND AND YIMBY
Date
Invoice
Number
Amount
in $
Accounts
Payable #
4/21/2023 463553 6748.82 36881
5/15/2023 464209 7062.00 37114
6/27/2023 464881 32850.00 37598
7/18/2023 465777 9185.50 37598
8/17/2023 466488 10172.00 37838
9/18/2023 467225 12093.50 38111
10/19/2023 467994 39173.00 38315
11/16/2023 468648 35050.00 38514
12/20/2023 469410 2607.00 38735
1/18/2024 470094 2282.00 38884
TOTAL $157,223.82