THIS AGREEMENT (“Agreement”) is between [insert the name of the Applicant], a [State where Applicant is incorported] corporation (“Applicant”), and PACIFIC BELL TELEPHONE COMPANY, a California corporation doing business as AT&T CALIFORNIA (“AT&T”) (collectively the “Parties”).
I. DEFINITIONS.
As used in this Agreement, the following terms apply:
A. The term “Tariff” refers to Schedule Cal. P.U.C. No. A2, Rule 32.A.2.
B. The terms “Underground Supporting Structure” and “USS” include, but are not limited to, conduit, inner duct, manholes, service boxes, and related equipment.
C. The terms “Trench” and “Trenching” include, but are not limited to, excavating, backfilling, compacting, and, as necessary, breaking and replacing pavement, sidewalks, driveways, curbs and gutters, and restoring all other surface features disturbed by underground construction including landscaping, plus the cost of performing such work.
D. The term “Hazardous Substance” refers to any substance, material or chemical that is or becomes regulated under applicable local, state, or federal law, regulation, or ordinance.
E. The term “District” refers to the area in/on/along [insert name/description of street] where the undergrounding of existing aerial facilities is to take place.
F. The term “Project” means all of the work required to underground existing aerial facilities within the District.
G. The term “CPUC” refers to the California Public Utilities Commission.
II. RECITALS.
A. Applicant has asked AT&T to replace its existing aerial communication facilities with underground communication facilities within the District.
B. AT&T is willing to underground its existing aerial communication facilities within the District, subject to the terms and conditions of this Agreement.
In consideration of the above, the Parties agree as follows:
III. SPECIFIC PROVISIONS.
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A. Tariff.
The Project will be conducted in accordance with the Tariff.
B. Construction.
1. Upon receipt of a copy of this Agreement that has been executed by Applicant and the advance payment described in Section III.G, AT&T will engineer and perform the work required to convert its existing aerial facilities to underground facilities in the area in the District shown on Applicants’ plans, which are attached hereto as Exhibit A.
2. If, during the installation or construction of communications facilities, AT&T employees, subcontractors, or agents encounter any Hazardous Substance(s) that may be disturbed by AT&T's activities:
a. AT&T shall give prompt written notice of the discovery of the Hazardous Substance(s) to Applicant;
b. AT&T shall suspend performance under this Agreement until (1) containment and removal of the Hazardous Substance(s) has been completed and approved by the appropriate governmental
agency(ies), if such approval is required, or approved by AT&T if governmental agency(ies) approval is not required, or (2) Applicant reasonably demonstrates that the Hazardous
Substance(s) will not be disturbed by AT&T's activities; c. AT&T's performance of its obligations under this Agreement is extended for the amount of time which it takes to complete containment/removal of the Hazardous Substance(s); and, d. If Applicant elects not to remove/contain the Hazardous Substance(s), AT&T may terminate this Agreement without further liability by giving advance notice to Applicant no later than ten (10) days after the date the Applicant notifies AT&T of its decision not to remove/contain the Hazardous Substance(s). In this case, Applicant shall reimburse AT&T for AT&T's share of the USS cost paid by AT&T and for the costs incurred by AT&T for the placement of cables and wiring on the Project and the wrecking associated with that placement up to the effective date of the termination. Upon such payment, Applicant shall become the owner of said wire and cables.
2. 3. 3. Applicant shall be responsible for the construction and installation of the necessary USS along the public way and utility rights of way in the District and shall prepare all documents necessary to coordinate and implement the Project plans. The documents shall include, but shall not be limited to: (a) Project Plans and Specifications, which shall be prepared in accordance with specifications and drawings furnished to 137 February 7, 2022 Item 14
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Applicant by AT&T; (b) documents that delineate all USS to be constructed and installed within the District; (c) a Bid Package covering the construction and installation of the USS for which Applicant is responsible; (d) separate agreements with Participants pertaining to the construction of facilities for the Project; and (e) a contract ("Contract") with an independent contractor for the construction and installation of USS for which Applicant is responsible under the Project. APPLICANT SHALL NOT DEVIATE FROM AT&T’S TRENCH
SPECIFICATIONS WITHOUT AT&T’S PRIOR WRITTEN
CONSENT.
3. 4. Applicant shall award the Contract to a qualified bidder. The terms and conditions of the Contract shall oblige the Contractor to furnish all materials, adhere to the Project Plans and Specifications, and install the USS at the locations designated on the map attached to this Agreement as Exhibit A. Applicant shall have full supervision of and control over the independent contractor's construction and installation of the USS.
However, AT&T shall be given the opportunity to inspect the construction and installation of the USS and to coordinate with Applicant to ensure that the construction and installation are completed in accordance with the Project plans and specifications.
4. Applicant shall require all property owners who are served by the aerial facilities to be replaced within the District to provide and maintain the USS on their property
C. Term.
This Agreement is effective upon execution and shall continue in effect until terminated or canceled as provided by law or this Agreement.
D. Title
Upon inspection and acceptance in writing of the USS by AT&T, title to the USS and all associated communications facilities placed by or for AT&T, except the underground service connections, shall vest in AT&T, provided that such is free of all liens and encumbrances.
E. Tax Liability
Applicant shall pay, and hold AT&T harmless from and against, all penalties, interest, taxes or other charges that are levied or assessed against Applicant.
F. Payment.
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Applicant shall pay to AT&T within forty-five (45) days after execution of this Agreement the sum of [written amount in dollars and cents] ($[dollars and cents figure]), which represents the estimated cost of AT&T preparing specifications and drawings for the USS and inspecting Applicant’s trenching and installation of the USS.
If applicable, Applicant shall also pay to AT&T a [insert current CIAC rate]% tax component of [written amount in dollars and cents] collected for Federal and State Income Tax in accordance with CPUC decision 87-09-026.
Applicant shall send payments to:
AT&T California
[street address]
[city], CA [zip code]
ATTN: [name]
G. Cancellation, Modification or Deferment.
If Applicant cancels, modifies or defers its request for conversion of the aerial facilities to underground facilities within the District, Applicant shall pay all charges incurred by AT&T, in accordance with the Tariff.
H. Indemnity; Limitation of Liability.
1. Applicant shall indemnify, defend at AT&T’s request and at no cost or expense to AT&T, and hold harmless AT&T and its officers, agents and employees, as well as its associated and affiliated companies and their respective officers, agents, and employees (“Indemnitees”), from and against any and all losses, damages, expenses, costs, penalties, fines, fees (including reasonable attorney's and consultant's fees), or liabilities (collectively "Liabilities"), incurred as a result of any injury to or death of any person(s) or damage to any property(ies) arising out of or in connection with the materials used or the work performed by Applicant under this Agreement or the condition of the Project's property, including environmental contamination, except where such Liabilities are caused by the sole negligence or willful misconduct of Indemnitees.
2. AT&T shall notify Applicant within a reasonable time of any written claim or demand against AT&T for which Applicant is responsible under this section. Applicant shall also (a) keep AT&T fully informed as to the progress of such defense, and (b) afford AT&T, at its own expense, an opportunity to participate with Applicant in the defense or settlement of such claims, demand, lawsuits or other legal proceedings.
3. AT&T shall indemnify, defend at Applicant’s request and at no cost or expense to Applicant, and hold harmless Applicant and its council, agents and employees (“City Indemnitees”), from and against any and all Liabilities incurred as a result of any injury to or death of any person(s) or 139 February 7, 2022 Item 14
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damage to any property(ies) arising out of or in connection with AT&T’s installation of facilities in the USS or the condition of AT&T’s facilities in the USS, except where such Liabilities are caused by the negligence or willful misconduct of City Indemnitees. Applicant shall notify AT&T within a reasonable time of any written claims or demand against Applicant for which AT&T is responsible under this section.
4. These indemnities shall survive the termination or cancellation of this Agreement or any provision to the contrary herein.
5. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER
PARTY FOR INCIDENTAL, SPECIAL, INDIRECT, PUNITIVE, OR
CONSEQUENTIAL DAMAGES, WHETHER BY TORT OR
CONTRACT, INCLUDING LOST REVENUES, LOSS OF PROFITS
OR OTHER COMMERCIAL OR ECONOMIC LOSS ARISING OUT
OF THE PERFORMANCE OF THIS CONTRACT, INCLUDING,
WITHOUT LIMITATION, NEGLIGENT PERFORMANCE OR
FAILURE TO PERFORM, OR A DEFECT OR FAILURE TO
PERFORM OR DEFECT OF CABLE OR WIRING, REGARDLESS OF
THE FORESEEABILITY THEREOF.
I. Insurance.
1. With respect to Applicant’s performance under this Agreement, and in addition to Applicant’s obligation to indemnify, Applicant shall at its sole cost and expense, maintain the insurance coverages and limits required by this Section and any additional insurance and/or bonds required by law:
i. at all times during the term of this Agreement and until completion of all work associated with this Agreement, whichever is later; and ii. with respect to any coverage maintained in a “claims-made” policy, for two (2) years following the term of this Agreement or completion of all work associated with this Agreement, whichever is later. If a “claims-made” policy is maintained, the retroactive date must precede the commencement of work under this
Agreement;
2. Applicant shall also require each subcontractor who may perform work under this Agreement or enter upon the work site to maintain coverages, requirements, and limits at least as broad as those listed in this section from the time when the subcontractor begins work, throughout the term of the subcontractor’s work and, with respect to any coverage maintained on a “claims-made” policy, for two (2) years thereafter;
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and having and maintaining a Financial Strength Rating of “A-” or better and a Financial Size Category of “VII” or better, as rated in the A.M. Best Key Rating Guide for Property and Casualty Insurance Companies, except that, in the case of Workers’ Compensation insurance, Applicant may procure insurance from the state fund of the state where work is to be performed; and b. deliver to AT&T certificates of insurance stating the types of insurance and policy limits. Applicant shall provide or will endeavor to have the issuing insurance company provide at least 30 days advance written notice of cancellation, non-renewal, or reduction in coverage, terms, or limits to AT&T. Applicant shall deliver such certificates:
i. prior to commencement of any work;
ii. prior to expiration of any insurance policy required in this Section; and
iii. for any coverage maintained on a “claims-made” policy, for two (2) years following the term of this Agreement or
completion of all work associated with this Agreement,
whichever is later.
3. The Parties agree:
a. the failure of AT&T to demand such certificate of insurance or failure of AT&T to identify a deficiency will not be construed as a waiver of Applicant’s obligation to maintain the insurance required under this Agreement;
b. that the insurance required under this Agreement does not represent that coverage and limits will necessarily be adequate to protect Applicant, nor be deemed as a limitation on Applicant’s liability to AT&T in this Agreement;
c. Applicant may meet the required insurance coverages and limits with any combination of primary and Umbrella/Excess liability insurance; and
Applicant is responsible for any deductible or self-insured retention.
4. The insurance coverage required by this section includes:
a. Workers’ Compensation insurance with benefits afforded under the laws of any state in which the work is to be performed and Employers Liability insurance with limits of at least:
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$500,000 for Bodily Injury – each accident
$500,000 for Bodily Injury by disease – policy limits
$500,000 for Bodily Injury by disease – each employee
To the fullest extent allowable by Law, the policy must include a waiver of subrogation in favor of AT&T, its affiliates, and their directors, officers and employees.
In states where Workers’ Compensation insurance is a
monopolistic state-run system, Applicant shall add Stop Gap Employers Liability with limits not less than $500,000 each accident or disease.
b. Commercial General Liability insurance written on Insurance Services Office (ISO) Form CG 00 01 12 04 or a substitute form providing equivalent coverage, covering liability arising from premises, operations, personal injury, products/completed operations, and liability assumed under an insured contract (including the tort liability of another assumed in a business contract) with limits of at least:
$2,000,000 General Aggregate limit;
$1,000,000 each occurrence limit for all bodily injury or property damage incurred in any one (1) occurrence;
$1,000,000 each occurrence limit for Personal Injury and Advertising Injury;
$2,000,000 Products/Completed Operations Aggregate limit; $1,000,000 each occurrence limit for Products/Completed Operations;
$1,000,000 Damage to Premises Rented to You (Fire Legal Liability).
The Commercial General Liability insurance policy must:
i. include AT&T, its affiliates, and their directors, officers, and employees as Additional Insureds. Applicant shall
provide a copy of the Additional Insured endorsement to AT&T. The Additional Insured endorsement may either be
specific to AT&T or may be “blanket” or “automatic”
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copy of the Additional Insured endorsement must be
provided within 60 days of execution of this Agreement
and within 60 days of each Commercial General Liability policy renewal;
ii. include a waiver of subrogation in favor of AT&T, its affiliates, and their directors, officers and employees; and iii. be primary and non-contributory with respect to any insurance or self-insurance that is maintained by AT&T. c. Business Automobile Liability insurance with limits of at least $1,000,000 each accident for bodily injury and property damage, extending to all owned, hired, and non-owned vehicles.
d. Umbrella/Excess Liability insurance with limits of at least $1,000,000 each occurrence with terms and conditions at least as broad as the underlying Commercial General Liability, Business Auto Liability, and Employers Liability policies. Umbrella/Excess Liability limits will be primary and non-contributory with respect to any insurance or self-insurance that is maintained by AT&T.
J. Warranty.
1. Applicant warrants that that for a period of two (2) years following acceptance of the USS by AT&T, all work and materials to be furnished under this Agreement:
a. shall conform in all respects to the requirements of this Agreement; b. are adequate for the purposes for which they are intended; c. are free from any defects in design, materials, workmanship and title including, but not limited to, defects that will cause caving or sinking of the Trench, the USS, paving, or other materials.
2. Applicant warrants that qualified personnel will perform all work promptly and with diligence, to AT&T’s reasonable satisfaction, and that all work and materials shall be subject to all statutory and express or implied warranties. This warranty shall survive inspection, acceptance, termination and payment.
3. Except as disclosed to and acknowledged by AT&T in writing, Applicant is not aware of the presence of any Hazardous Substance at the locations on the Project where AT&T will be installing cable and wiring and performing wrecking in association with such installations.
K. Liens.
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Applicant and its agents and contractors shall keep the USS free from any statutory or common law lien arising out of any work performed, materials furnished or obligations incurred by Applicant, its agents or contractors. In the event a lien is recorded against the USS and it is not removed from the record within ten (10) days after notice is given by AT&T to Applicant to do so, AT&T shall have the right to pay and discharge the lien without regard to whether the lien shall be lawful, valid or correct. Applicant shall, within thirty (30) days after receiving written notice from AT&T, reimburse AT&T for any such claim paid by it.
L. Licenses and Easements.
Prior to construction of the Project, Applicant shall, at no cost to AT&T, furnish AT&T with any and all licenses or grants of easements that are necessary to accommodate the Project, including the construction and maintenance of AT&T’s facilities.
M. Performance.
If Applicant should default in the performance of any work that it is obligated to perform under this Agreement within the time allowed for such work, AT&T may elect, by written notice to Applicant, to perform the work at Applicant’s sole risk and expense and Applicant shall pay to AT&T upon demand AT&T’s actual costs for performing the work.
N. Damage to Facilities.
Applicant and its employees, agents and contractors shall exercise special precaution and care to avoid causing damage to AT&T’s facilities in performing work under the Project. Applicant shall assume responsibility for any and all losses, costs and expenses arising out of, caused by, or in any way connected with such damages, including consequential damages. Applicant shall immediately report in writing the occurrence of any such damage to AT&T. Applicant shall, on demand, reimburse AT&T for the entire expense incurred in replacing or repairing the damage.
O. Schedule of Work.
AT&T shall not commence detailed engineering of the Project prior to receiving a copy of this Agreement that has been executed by Applicant. AT&T shall have its facilities converted contingent upon mutually acceptable schedules, timely obtaining of permits, licenses and other documents, and not being delayed by those uncontrollable forces described in Section III.Q below.
P. Force Majeure.
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regulations, the presence of archeological or historical artifacts or Hazardous Substances on, in, or near the Project, embargoes, epidemics, war, terrorist acts, riots, insurrections, fires, explosions, earthquakes, nuclear accidents, floods, strikes, power blackouts, volcanic action, other major environmental disturbances, unusually severe weather conditions, inability to secure products or services of other persons or transportation facilities, or acts or omissions of carriers. If any of the foregoing events occur, AT&T agrees, if requested by Applicant, to accelerate its efforts hereunder if reasonably feasible in order to regain lost time, so long as Applicant agrees to reimburse AT&T for the incremental actual costs of such efforts.
Q. Compliance With Laws.
Applicant shall comply with all applicable federal, state, county, and local statutes, laws, ordinances, regulations, and codes. Applicant further agrees to comply with all applicable Executive Orders and regulations, including, but not limited to, those that are attached to this Agreement as Exhibit C. As used in Exhibit C, “Contractor” means Applicant.
IV. GENERAL PROVISIONS.
A. Assignment.
Applicant shall not wholly or partially assign this Agreement without the prior written consent of AT&T.
B. Binding Effect.
This Agreement shall be for the benefit of and is binding upon the respective successors and assigns of the parties hereto.
C. Termination.
This Agreement automatically terminates upon completion and acceptance of the USS by AT&T. In the event of any material default or breach of this Agreement by Applicant, in addition to all other rights and remedies which AT&T may have at law or in equity, AT&T shall have the immediate right to terminate this Agreement by giving ten (10) days prior written notice of termination. The notice shall specify the cause of termination and shall give Applicant a reasonable opportunity to cure and correct any such cause. In the event this Agreement is terminated or suspended as provided herein, AT&T shall not be liable to Applicant or any other person or entity for any losses, damages or claims that arise as a result of termination. Applicant shall pay to AT&T all costs and expenses incurred by AT&T prior to termination of this Agreement. Any termination of this Agreement in whole or in part shall not release Applicant from any liability or obligation under this Agreement, whether of indemnity or 145 February 7, 2022 Item 14
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otherwise, that accrued or that may be accruing or that arises out of any claim that may have accrued or may be accruing at the time of termination.
D. Attorneys’ Fees.
If any action is brought to adjudicate the rights granted in this Agreement or to enforce any of the terms of this Agreement, the prevailing party shall be entitled to an award of reasonable attorneys’ fees in an amount to be determined by a court or a tribunal of competent jurisdiction.
E. Entire Agreement.
This Agreement and the Exhibits attached hereto that are incorporated herein by this reference constitute the entire Agreement between the parties with respect to the subject matter hereof. All prior agreements, representations, statements, negotiations and understandings are superseded.
F. Independent Contractor.
Applicant and its agents, employees and contractors shall perform all work under this Agreement as independent contractors and not as affiliates, partners, joint ventures, agents, employees, servants or assigns of AT&T.
G. Jurisdiction.
This Agreement shall be governed by the laws of the State of California and is subject to the applicable rules, regulations and tariffs on file with the CPUC.
H. Notices.
All notices and other communications hereunder shall be in writing addressed as follows and shall be deemed given when: delivered in person, delivered to an 146 February 7, 2022 Item 14
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agent, such as an overnight or similar delivery service, or three days after being deposited in the United States mail, postage prepaid:
APPLICANT AT&T California
[insert address where notice
should be sent]
[insert address where notice
should be sent]
I. Waiver and Amendment.
The provisions of this Agreement shall not be waived, altered, or amended by any representations or promises of any party unless consented to in writing by all parties hereto.
The duly authorized representatives of Applicant and AT&T have executed this Agreement by affixing their signatures on the dates indicated below. [INSERT APPLICANT'S NAME] PACIFIC BELL TELEPHONE COMPANY
By:___________________________ By:____________________________ Title:__________________________ Title:___________________________ Printed Name:___________________ Printed Name:____________________ Date Signed:____________________ Date Signed:_____________________ 147 February 7, 2022 Item 14
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Exhibit A
Applicant’s plans
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EXHIBIT B
AT&T’S ESTIMATED COSTS
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Exhibit C
Executive Orders and Associated Regulations
AT&T California and AT&T Nevada, as common carriers of telecommunications services, engage in work as contractors for various departments and agencies of the United States Government. Also, certain facilities may be constructed pursuant to federally assisted construction programs. Because of the foregoing, work under this contract may be subject to the provisions of certain Executive Orders, federal laws and associated regulations. To the extent that such Executive Orders, federal laws and associated regulations apply to the work under this contract, and only to that extent, Contractor agrees to comply with the provisions of all such Executive Orders, federal laws and associated regulations as no in force or as may be amended in the future, including, but not limited to the following:
1. EQUAL EMPLOYMENT OPPORTUNITY PROVISIONS.
In accordance with Executive Order 11246, dated September 24, 1965, and 41 C.F.R. § 60-1.4, the parties incorporate herein by this reference the regulations and contract clauses required by those provisions to be made a part of nonexempt contracts and subcontracts.
2. CERTIFICATION OF NONSEGREGATED FACILITIES.
In accordance with Executive Order 11246, dated September 24, 1965, and 41 C.F.R. § 60-1.8, Contractor certifies that it does not and will not maintain or provide for its employees any facilities segregated on the basis of race, color, religion, sex, or national origin at any of its establishments, and that it does not and will not permit its employees to perform their services at any location under its control, where such segregated facilities are maintained. The term "facilities" as used herein means waiting rooms, work areas, restaurants and other eating areas, time clocks, restrooms, wash rooms, locker rooms and other storage or dressing areas, parking lots, drinking fountains, recreation or entertainment areas, transportation, and housing facilities provided for employees, provided that separate or single-user toilet and necessary changing facilities shall be provided to assure privacy between the sexes. Contractor will obtain similar certifications from proposed subcontractors prior to the award of any nonexempt subcontract.
3. CERTIFICATION OF AFFIRMATIVE ACTION PROGRAM.
Contractor certified that it has developed and is maintaining an Affirmative Action Plan as required by 41 C.F.R. § 60-1.40.
4. CERTIFICATION OF FILING.
Contractor certifies that it will file annually, on or before the 31st of March, complete and accurate reports on Standard Form 100 (EEO-1) or such forms as may be promulgated in its place as required by 41 C.F.R. § 60-1.7.
5. AFFIRMATIVE ACTION FOR DISABLED VETERANS AND VETERANS OF THE VIETNAM ERA.
In accordance with Executive Order 11701, dated January 24, 1973, and 41 C.F.R. 60-250.20, the parties incorporate herein by this reference the regulations and contract clauses required by those provisions to be made a part of Government contracts and subcontracts.
6. AFFIRMATIVE ACTION FOR HANDICAPPED PERSONS.
In accordance with Executive Order 11758, dated January 15, 1974, and 41 C.F.R. § 60-741.20, the parties incorporate herein by this reference the regulations and contract clauses required by those provisions to be made a part of Government contracts and subcontracts.
7. UTILIZATION OF SMALL BUSINESS CONCERNS AND SMALL
DISADVANTAGED BUSINESS CONCERNS.
48 C.F.R., Ch. 1, § 19.740(4) and 19.708(a) require that the following clause is included:
Utilization of Small Business concerns and Small Disadvantaged Business Concerns (June, 1985)
(a) It is the policy of the United States that small business concerns and small business concerns owned and controlled by socially and economically disadvantaged individuals shall have the maximum practicable opportunity to participate in performing contracts let by and Federal agency, including contracts and subcontracts for subsystems, assemblies, components, and related services for major systems. It is further the policy of the United States that its prime contractors establish procedures to ensure the timely payment of amounts due pursuant to the terms of their subcontracts with small business concerns and small business concerns owned and controlled by socially and economically disadvantaged individuals. (b) The Contractor hereby agrees to carry out this policy in the awarding of subcontracts to the fullest extent consistent with efficient contract performance. The Contractor further agrees to cooperate in any studies or surveys as may be conducted by the United States Small Business Administration or the awarding agency of the United States as may be necessary to determine the extent of the Contractor's compliance with this clause. (c) As used in this contract, the term "small business concern" shall mean a small business as defined pursuant to section 3 of the Small Business Act and relevant regulations promulgated pursuant thereto. The term "small business concern owned and controlled by socially and economically disadvantaged individuals" shall mean a small business concern:
(1) Which is at least 51 percent owned by one or more socially and economically disadvantaged individuals; or, in the case of any publicly owned businesses, at least 51 percent of the stock of which is owned by one or more socially and economically disadvantaged individuals; and
(2) Whose management and daily business operations are controlled by one or more of such individuals.
The Contractor shall presume that socially and economically disadvantaged individuals include Black Americans, Hispanic Americans, Native Americans, Asian-Pacific Americans, AsianIndian Americans and other minorities, or any other individual found to be disadvantaged by the Administration pursuant to section 8(a) of the Small Business Act. (d) Contractors acting in good faith may rely on written representations by their subcontractors regarding their status as either a small business concern or a small business concern owned and controlled by socially and economically disadvantaged individuals.
Small Business and Small Disadvantaged Business Subcontracting Plan.
Contractor, unless it is a small business concern, as defined in section 3 of the Small Business Act, agrees to adopt and comply with a small business and small disadvantaged business subcontracting plan, which shall be included in and made a part of this contract. The parties incorporate herein by this reference the regulations and contract clauses required by 48 C.F.R., Ch. 1, §§ 19.704(4) and 19.708(b) to be made a part of Government contracts and subcontracts.
8. WOMEN-OWNED SMALL BUSINESSES.
As prescribed in 48 C.F.R., Ch. 1, § 19.902, the following clause is included in solicitations and contracts when the contract amount is expected to be over the small purchase threshold, unless (a) the contract is to be performed entirely outside the United States, its possessions, Puerto Rico, and the Trust Territory of the Pacific Islands, or (b) a personal services contract is contemplate:
(a) "Woman-owned small businesses," as used in this clause, means businesses that are at least 51 percent owned by women who are United States citizens and who also control and operate the business.
"Control," as used in this clause, means exercising the power to make policy decisions. "Operate," as used in this clause, means being actively involved in the day-to-day management of the business.
(b) Policy. It is the policy of the Government to award contracts to concerns that agree to perform substantially in labor surplus areas (LSA's) when this can be done consistent with the efficient performance of the contract and at prices no higher than are obtainable elsewhere. The Contractor agrees to use its best efforts to place subcontracts in accordance with this policy. (c) Order of Preference. In complying with paragraph (b) above and with paragraph (c) of the clause of this contract entitled Utilization of Small Business Concerns and Small Disadvantaged Business Concerns, the Contractor shall observe the following order of preference in awarding subcontracts: (1) small business concerns that are LSA concerns, (2) other small business concerns, and (3) other LSA concerns.
(d) Definitions. "Labor surplus area," as used in this clause, means a geographical area identified by the Department of Labor in accordance with 20 C.F.R. § 654, Subpart A, as an area of concentrated unemployment or underemployment or an area of labor surplus. "Labor surplus area concern," as used in this clause, means a concern that together with its first-tier subcontractors will perform substantially in labor surplus areas. Performance is substantially in labor surplus area if the costs incurred under the contract on account of manufacturing, production, or performance of appropriate services in labor surplus areas exceed 50 percent of the contract price.
Labor Surplus Area Subcontract Program.
(a) See the Utilization of Labor Surplus Area Concerns clause of this contract for applicable definitions.
(b) The Contractor agrees to establish and conduct a program to encourage labor surplus area (LSA) concerns to compete for subcontracts within their capabilities at prices no higher than obtainable elsewhere. The contractor shall --
(1) Designate a liaison officer who will (i) maintain liaison with authorized representatives of the Government on LSA matters, (ii) supervise compliance with the Utilization of Labor Surplus Area Concerns clause, and (iii) administer the Contractor's labor surplus area subcontracting program;
(2) Provide adequate and timely consideration of the potentialities of LSA concerns in all make-or-buy decisions;
(3) Ensure that LSA concerns have an equitable opportunity to compete for subcontracts, particularly by arranging solicitations, time for the preparation of offers, quantities, specifications, and delivery schedules so as to facilitate the participation of LSA concerns; (4) include the Utilization of Labor Surplus Area Concerns clause in subcontracts that offer substantial LSA subcontracting opportunities; and (5) Maintain records showing (i) the procedures adopted and (ii) the Contractor's performance, to comply with this clause. The records will be kept available for review by the Government until the expiration of 1 year after the award of this contract, or for such longer period as may be required by any other clause of this contract or by applicable law or regulations. (c) The Contractor further agrees to insert in any related subcontract that may exceed $500,000 and that contains the Utilization of Labor Surplus Area Concerns clause, terms that conform substantially to the language of this clause, including this paragraph (c), and to notify the Contracting Officer of the names of subcontractors. 150 February 7, 2022 Item 14
151 February 7, 2022 Item 14
Attachment
E
152 February 7, 2022 Item 14
Sample Photo
Potential Material for Undergrounding Project Retaining Walls Tan Split Face Concrete Block
Attachment F
153 February 7, 2022 Item 14
Sample Photo
Potential Material for Undergrounding Project Retaining Walls Alternative 1 - Stone Veneer
Attachment G
154 February 7, 2022 Item 14
Sample Photo
Potential Material for Undergrounding Project Retaining Walls Alternative 2 - Cultured Stone Veneer
Attachment G
155 February 7, 2022 Item 14
Cost Estimate & Budget Status for Tewa Court/10th Street February 1, 2022 Does not include costs for internal staff time or necessary City personnel for project management Pre-Construction Phase - Professional Services - Utility Specialists Work Categories Budget as of 5-17-21 Budget as of 11-1-21 Potential Budget as of 2-01-22
Expended to Date
as of 12-31-21
Utility Specialists - Pre-Construction (Includes US, KCM, Fuscoe) City and Agency Coordination $ 18,445 $ 18,445 $ 18,445 District Formation Support $ 15,275 $ 15,275 $ 15,275
Resident Interface and Coordination $ 13,860 $ 13,860 $ 13,860 Public & Resident Education/Communications $ - $ - $ -
Public Bidding Support $ 34,370 $ 34,370 $ 34,370
Survey & Mapping of Existing Conditions, Civil Design for Construction Documents, Design Coordination for Public Right-of-Way and Private Lateral Connections, Constructability Review $ 92,920 $ 92,920 $ 92,920 Additional survey work $ - $ 10,000 $ 10,000
Structural engineering for retaining wall $ - $ 1,700 $ 1,700 Contingency for Miscellaneous Services As-Needed $ 6,500 $ 6,500 $ 6,500 Utility Specialists - Subtotal - Pre-Construction $ 181,370 $ 193,070 $ 193,070 $ 112,571 Other Required Services - Pre-Construction - Vendor To Be Determined City Arborist Review
Review for any Del Mar protected tree species (Torrey Pines and Monterey Cypress) within project area and provide recommendations on how to avoid damage/removal to the max extent feasible.
$ 3,600 $ 3,600 $ 3,600 $ 3,600
Environmental Review
(TBD; may be able to be completed in-house depending on complexity; CEQA review is required by State law)
TBD $ - $ - $ -
Geotechnical engineering review for retaining wall $ - $ 4,500 $ 4,500 $ 4,500 Design Review & Land Conservation Permits $ - $ 8,350 $ 8,350 $ 1,838 Filing of Notice of Exemption (NOE) re CEQA $ - $ - $ - $ 53 Other Potential As-Needed Services - Pre-Construction - Vendor to be Determined GIS Services As-Needed $ 2,000 $ 2,000 $ - $ -
Printing of large format plan set for review $ - $ - $ - $ 28 Stephen Dalton Architects - Alternative material for retaining wall $ - $ - $ - $ 484 Pre-Construction Subtotal for Professional Services $ 186,970 $ 211,520 $ 209,520 $ 123,074 Utility Company - City Paid Construction Costs1
SDG&E
($11,950 previously paid toward design) $ 118,280 $ 118,280 $ 181,118 $ - AT&T (Per Utility Specialists; based on 75% of full SDG&E amount = $130,230) $ 97,673 $ 101,073 $ 3,400 $ 2,000 Spectrum/Charter $ 37,163 $ 37,163 $ - $ -
Subtotal for Utility Company Construction Costs $ 253,116 $ 256,516 $ 184,518 $ 2,000 1 Does not reflect design costs which were privately paid for.
Construction Phase - General Contractor (Trenching, Concrete Work, etc) General contractor (Actual amount will be determined via City bid process) $ 120,000 $ 120,000 $ 447,400 $ - Construction Phase - Professional Services
Utility Specialists - During Construction
Construction Management and Support $ 41,930 $ 41,930 $ 41,930 $ - Other Potential As-Needed Services - During-Construction - Vendor to be Determined Resident Engineer $ 33,200 $ 33,200 $ 33,200 $ -
During Construction Subtotal for Professional Services $ 75,130 $ 75,130 $ 75,130 $ - Combined Estimated Total - Design, Professional Services/Soft Costs, Construction $ 635,216 $ 663,166 $ 916,568 $ 125,074 Contingency for Construction Phase
15% of Construction Bid and Construction Soft Costs $ - $ - $ 42,698 Revised Budget Total for Tewa Court/10th Street Project $ 635,216 $ 663,166 $ 959,266 $ 112,571
156 February 7, 2022 Item 14
City of Del Mar
Agenda Report
________________________________________________________________________________________________________ City Council Action:
TO: Honorable Mayor and City Council Members
FROM: Amanda Lee, Principal Planner
Karen Brindley, Planning & Community Development Director Via Ashley Jones, City Manager
DATE: February 7, 2022
SUBJECT: Status Update Regarding the City’s North Commercial/Professional Commercial Zone Amendment LCPA
REQUESTED ACTION/RECOMMENDATION:
Staff recommends that the City Council receive a status update regarding the City’s North Commercial/Professional Commercial (NC/PC) Zone Amendment Local Coastal Program Amendment (LCPA), review the California Coastal Commission (CCC) staff’s report and recommendation for Item TH13d on the upcoming CCC hearing on February 10, 2022, and provide direction on the following:
1) Next steps for participation in the CCC public hearing (virtual hearing); 2) The City Council’s position on the suggested modifications, and in particular, if the CCC modifications are generally consistent with the City’s LCP and prior policy positions adopted by the Del Mar City Council, including the 6th Cycle Housing Element and Sea Level Rise Adaptation Plan; and
3) Any edits the City Council would like to request to the suggested modifications.
This agenda item will provide an opportunity for local public discussion and direction by the City Council prior to any formal CCC action being taken on the City’s NC/PC LCPA at the upcoming CCC hearing on February 10, 2022.
A link to the CCC staff report for ItemTH13d is available here:
https://documents.coastal.ca.gov/reports/2022/2/Th13d/th13d-2-2022-report.pdf EXECUTIVE SUMMARY:
The City needs to obtain CCC certification of the NC and PC LCPAs for compliance with State housing law and its prior housing commitments for the 5th Cycle and 6th Cycle Housing Elements. Production of housing in the NC and PC zones, including units for 1 February 7, 2022 Item 15
City Council Agenda Report
NC/PC LCPA Status Update
February 7, 2022
lower income households, is a key component of the City’s adopted housing strategy for the 6th Cycle Housing Element planning period that covers the years 2021-2029. The Housing Element relies on the NC and PC zones to create opportunities for multiple dwelling unit housing, including units for lower income households, as follows:
3 lower income units are projected for the PC zone (on two of the four total lots) 32 lower income units are projected for the NC zone (on nine of sixteen total lots) The concern is that CCC staff is requesting modifications that could limit the potential for housing in the NC zone in conflict with the City’s adopted 6th Cycle Housing Element.
CCC staff noted their intent is to harmonize State housing law and the Coastal Act.
However, as currently written, CCC’s modifications relating to projected sea level rise are likely to discourage affordable housing development on the nine parcels identified for potential housing development by identifying them as “hazardous” and requiring property owners to record statements identifying that development on their property is hazardous and may need to be removed/relocated and the site restored. This is in spite of the fact that: 1) all future development would already be required to comply with FEMAs floodplain standards and the certified LCP including the Floodplain Overlay Zone; 2) sites in the NC zone that allow housing are developable and the least vulnerable to flood risk within the zone; and 3) the most sensitive flood risk locations in proximity to the San Dieguito Lagoon already explicitly prohibit multiple dwelling unit housing per the City’s Community Plan (General Plan).
CCC’s rationale is based on projections of sea level rise (California Ocean Protection Council’s medium to high sea level rise scenarios for mid to late century). Note that these sea level rise scenario projections do not account for development compliance with required floodplain management design standards (i.e. flood proofing and elevation of construction) or local adaptation measures currently in process per the City of Del Mar’s adopted Sea Level Rise Adaptation Plan (Environmental Science Associates 2018) for a living levee along the San Dieguito river banks and the City’s 10-year CIP plan for upgrading vulnerable public infrastructure.
See Attachment A for a summary of CCC staff’s proposed modifications and potential changes that could be requested by the City for incorporation into the LCP in an effort to reach an agreement with the CCC and obtain certification.
It is important to note that there will be no associated potential for significant impacts to coastal resources that would be created as a result of the proposed LCPAs. As concluded by the two applicable Final Program Environmental Impact Reports (PEIRs), all potentially significant impacts associated with future housing development in the NC zone and PC zone were identified and disclosed and could be mitigated to less than significant level.
In addition, the CCC already has a level of surety built into the approval process for future housing because the NC zone is located entirely within CCC’s jurisdiction for hearing 2 February 7, 2022 Item 15
City Council Agenda Report
NC/PC LCPA Status Update
February 7, 2022
appeals of City-issued permit decisions, which means the CCC has final approval authority over all future housing development in the NC zone.
The City’s 6th Cycle Housing Element is currently in process of a separate State certification review with the California Department of Housing and Community Development (HCD). If CCC staff’s proposed implementation approach for future housing sites in the NC zone is interpreted as an impediment to the creation of lower income units (in conflict with the City’s prior Housing Element commitments), then the City’s adopted Housing Element is likely to be determined by HCD to be out of compliance with State Housing law and in need of amendments (i.e., the addition of a replacement zoning program to create sites allowing at least 20-25 dwelling units per acre and allowing housing development “by-right” since the new sites would need to be created during the 6 th Cycle, which began April 15, 2021).
Also, if the NC LCPA is not certified by the CCC, or if future housing projects on the identified NC zone sites are denied or approved below the capacity and income level specified in the Housing Element, then the City would end up with a shortfall of adequate sites for the 6th Cycle Housing Element. As a result, the City would be unable to obtain (or maintain) certification of the Housing Element and the City would need to identify an equivalent number of replacement sites to meet its RHNA within 180 days of any action that reduces the City’s existing capacity of adequate sites. Based on the prior analysis done in preparation for the 6th Cycle Housing Element, the replacement sites would most likely need to include rezoning of a combination of vacant parcels on the North Bluff (south of Border Avenue and west of Camino del Mar) and the identification of additional sites to include in the contingency plan in case the City’s primary housing strategy to locate units on the State Fairgrounds property is not timely implemented by December 2024.
BACKGROUND:
After multiple years of study and preparation of two Final PEIRs that analyzed and disclosed the potential impacts to the environment associated with the subject LCPA and potential for housing capacity in the NC and PC zones, which concluded all potentially significant impacts associated with future housing development in the NC zone and PC zone could be mitigated to less than significant level, the City Council took the following actions:
On September 8, 2020, the City Council certified the NC//PC Final Program Environmental Impact Report (PEIR) for implementation of 5th Cycle Housing Element Programs 2E and 2F (Resolution 2020-47)
On September 8, 2020, the City Council adopted a General Plan Amendment applicable to the PC Zone (Resolution 2020-48) that took effect immediately for implementation of 5th Cycle Housing Element Program 2F
On September 21, 2020, the City Council adopted the PC Zone Amendment/LCPA (Ordinance 971), which is the subject matter of the pending LCPA requiring CCC 3 February 7, 2022 Item 15
City Council Agenda Report
NC/PC LCPA Status Update
February 7, 2022
certification for final implementation of 5th Cycle Housing Element Program 2F/6th Cycle Housing Element Program 1B
On March 15, 2021, the City Council adopted a General Plan Amendment applicable to the NC Zone (Resolution 2021-12) that took effect immediately for implementation of 5th Cycle Housing Element Program 2E
In September 2021, an agreement was reached to withdraw a Referendum that was filed on November 18, 2020, against the NC Zone Amendment/LCPA (Ordinance 973) that was adopted by the City Council on October 19, 2020.
Ordinance 973 was tolled until the Referendum of the ordinance was withdrawn per an executed Referendum Withdrawal Agreement. The Ordinance/LCPA is the subject matter of the pending LCPA requiring CCC certification for final implementation of 5th Cycle Housing Element Program 2E/6th Cycle Housing Element Program 1A.
The City, HCD, and CCC are commonly interested in ensuring the safety of people and accommodating housing development in a manner that does not negatively impact coastal resources or public access. Further, all three agencies are working to harmonize the State Housing law and the Coastal Act. However, as currently written, CCC’s modifications relating to projected sea level rise are likely to discourage affordable housing development on the nine parcels identified for potential housing development by identifying them as “hazardous” and requiring property owners to record statements identifying development on their property is hazardous and may need to be removed/relocated and the site restored. This is in spite of the fact that all future development would already be required to comply with FEMAs floodplain standards and the certified LCP including the Floodplain Overlay Zone. Also, the sensitive locations in proximity to the San Dieguito Lagoon already prohibit multiple dwelling unit housing per the City’s Community Plan (General Plan).
While the CCC generally prefers areas with potential for flooding due to projected sea level rise be excluded as housing locations, HCD and the San Diego Association of Governments (SANDAG), as the regional planning agency responsible for approving the Regional Housing Needs Assessment (RHNA) allocation for the 6th Cycle Housing Element, explicitly determined that projected sea level rise could not be considered to reduce a jurisdiction’s site capacity or housing need for the 2021-2029 housing cycle.
Planning and implementation of 6th Cycle Housing Elements is actively in process statewide (beginning with the southerly regions), and there has been no State-level determination to otherwise modify the prior direction relating to housing planning for coastal cities at risk of projected sea level rise.
The City of Del Mar is a small coastal city with limited options available to accommodate multiple unit housing development, which makes the housing planning process (Housing Element updates required every eight years) particularly challenging. As part of a multiyear planning process for the 6th Cycle Housing Element, the City considered locations 4 February 7, 2022 Item 15
City Council Agenda Report
NC/PC LCPA Status Update
February 7, 2022
citywide, and explicitly studied whether or not there were suitable sites that could be considered as a replacement option for sites in the NC zone. Based on the data and analysis, the NC zone sites were determined by the City Council to be the most suitable adequate sites to help meet a portion of the overall combined total of lower income units (32 of the 113 total) required for the 6th Cycle Housing Element (2021-2029). The NC zone and PC zone sites are both necessary components of the City’s 6th Cycle Housing Element adopted by the City Council on March 25, 2021.
DISCUSSION/ANALYSIS:
Since at least 2016, City staff has regularly coordinated with CCC staff on the NC and PC LCPAs in an effort to meet applicable criteria per the Coastal Act and certified LCP. City staff also regularly coordinate with staff from HCD to ensure compliance with State housing law. The respective competing interests between these State agencies has been difficult to resolve at the staff level.
CCC staff’s proposed modifications for the NC zone LCPA focus on projections for future sea level rise in a neighborhood that is located south of the San Dieguito Lagoon and is not located contiguous to the ocean. It is important to note that CCC certification of the City’s Ordinances as submitted would have no associated reduction in any existing environmental protections as all of the existing policies and regulatory standards of the City’s General Plan, Zoning Code, and LCP would apply. This includes the fact that the City already explicitly prohibits multiple dwelling unit development as a land use on six lots in the NC zone (6.78 acres of approximately 16 acres total) located in proximity to the San Dieguito Lagoon. Further, the City’s policies and regulations specify exactly which interior parcels in the NC zone located along Jimmy Durante Boulevard (away from the Lagoon) could be considered as potential locations for multiple dwelling unit housing to help implement the City’s Housing Element. All proposed development would be required to comply with the certified LCP.
Following is a Table showing all 16 parcels in the NC Zone (including the six lots that prohibit multiple dwelling unit use) in comparison to the maximum potential number of dwelling units that could be yielded per lot at a density of 20 du/ac:
APN Owner Address Acreage Potential # of
Units
1 299-071-02-00 NCTD N/A 4.44 0 (prohibited)
2 299-100-50-00 City of Del Mar N/A 0.02 0 (not feasible) 3 299-100-49-00 Marten, RT 2236 Jimmy Durante Blvd. 0.42 8 4 299-100-30-00 Matthews, Erin 2148 Jimmy Durante Blvd. 0.38 8 5 299-100-28-00 Read Family LLC 2126 Jimmy Durante Blvd. 0.51 10 6 299-100-29-00 Stonebreaker Trust 2132 Jimmy Durante Blvd. 0.51 10 7 299-100-27-00 Knorr, Donna Trust 2120 Jimmy Durante Blvd. 0.90 18 5 February 7, 2022 Item 15
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NC/PC LCPA Status Update
February 7, 2022
8 299-071-06-00 Bungalows LLC 2010 Jimmy Durante Blvd. 2.12 42 9 299-071-07-00 Westech Realty 2002 Jimmy Durante Blvd. 1.42 28 10 299-100-48-00
Watermark LP N/A 2.68 54 11 299-100-47-00
12 299-100-32-00 City of Del Mar N/A 0.04 0 (prohibited) 13 299-100-33-00 NCTD N/A 0.68 0 (prohibited)
14 299-100-34-00 2201 Del Mar LLC 2201 San Dieguito Drive 1.13 0 (prohibited) 15 299-100-35-00 Scarab Group 2195 San Dieguito Drive 0.26 0 (prohibited) 16 299-100-36-00 S.C. Edison N/A 0.23 0 (prohibited)
178 Total
Potential Units1
The City Council is asked to consider how the requested CCC staff modifications could discourage housing in the NC zone in conflict with the City’s adopted 6th Cycle Housing Element and adopted Sea Level Rise Adaptation Plan, which sets forth the City’s plan to implement adaptation measures and minimize flood risk citywide, including the NC zone.
CCC’s Authority to Hear Appeals of Local Permit Decisions in the NC Zone The CCC already has a level of surety built into the approval process for future housing in the NC zone because the CCC has final approval authority over all future housing development in the NC zone. The NC zone is located entirely within the CCC’s jurisdiction for hearing appeals of City-issued permit decisions, which means the CCC has final approval authority over all future housing development in the NC zone. In areas where CCC has appeal authority over City decisions on development (i.e., bluffs, beach, and lagoon), the City issues a decision on the CDP application but the local decision can be appealed to the CCC. Appeal of a permit decision can be done by an aggrieved person who participated in the City’s local approval process or the CCC directly via any two of 12 Coastal Commissioners. On matters where an appeal is filed and “substantial issue” is found (i.e., that the City’s decision does not conform to the LCP and Coastal Act), the CCC then becomes the final decision maker on a CDP via a subsequent, de novo hearing.
CCC’s permit jurisdiction and appeals area are delineated on the CCC Permit and Appeals Jurisdiction Map, which are part of the Del Mar LCP (Attachment B). As noted, all potential locations for future housing development in the NC zone is located entirely within CCC’s jurisdiction for hearing appeals of City-issued permit decisions.
1 Note: While this table accounts for the potential of each parcel at a density of 20 du/ac, the permit application in process per State law at an allowable density of 20-25 du/ac for the Watermark LP-owned lots, is not requesting maximum density (request is for 48 units - not 54 units as calculated above), which further reduces the total potential units in the North Commercial zone to 172 units. 6 February 7, 2022 Item 15
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NC/PC LCPA Status Update
February 7, 2022
Council Direction on Next Steps
City staff is requesting City Council direction for participation in the upcoming February 10, 2022 CCC public hearing (virtual hearing). This includes input on who should be the primary representative (e.g. who may do a presentation or take the lead on answering questions from the Commissioners). The Commission will accept a request to speak the day of the hearing, but asks that any speakers sign up by 5 pm the day before the hearing, and that any Powerpoints or visual aids be submitted by 5 pm the day before the hearing.
Note that CCC’s suggested modifications are prepared by the CCC at the staff-level and are still in a draft format that can be subject to change up until the CCC takes action on the LCPA. One option is for the City to submit correspondence to CCC staff as soon as possible requesting revisions that could be incorporated into a revised CCC staff recommendation in advance of the hearing. If the CCC takes action to conditionally certify the City’s LCPA on February 10, then the City Council will have up to six months to adopt the CCC modifications by ordinance and submit the adopted ordinance to CCC for final certification of the LCPA. Under this scenario, City staff would return to City Council with an ordinance for adoption of the modifications as conditionally certified by the CCC. Once the CCC issues final LCPA certification, the LCPA will become the standard of review for future housing development in the NC and PC zones moving forward.
Due to Coastal Act requirements governing LCPAs, the CCC must take action by March 2022. If additional time is deemed necessary, the City Council could request a continuance to the March 2022 CCC meeting, which would be the final opportunity for CCC action prior to LCPA expiration.
FISCAL IMPACT:
There is no fiscal impact associated with this agenda item.
ENVIRONMENTAL IMPACT:
Pursuant to the California Environmental Quality Act (CEQA), the proposed action has been the subject of prior environmental analysis and is consistent with the City Council’s prior determinations as it will not have a potential to result in a direct or indirect physical change in the environment. This includes action by the City Council on September 8, 2020, adopting Resolution 2020-47 that will apply to future housing development as covered by PC Zone General Plan Amendment Resolution 2020-48 (adopted September 8, 2020), PC Zoning Ordinance 971 (adopted September 21, 2020), NC Zone General Plan Amendment Resolution 2021-12 (adopted March 15, 2021), and NC Zoning Ordinance 973 (adopted October 19, 2020). The Council action on September 8, 2020 specifically included: 1) certifying a Final Program Environmental Impact Report (PEIR) for the Professional Commercial Zoning and North Commercial Zoning Code Amendments (SCH #2019029058) that analyzes and discloses the known potential impacts associated with the land use plan and code amendments; and 2) adopting a Mitigation, Monitoring, and Reporting Program (MMRP) that identifies a mitigation framework for future housing development in the NC Zone and PC Zone. 7 February 7, 2022 Item 15
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NC/PC LCPA Status Update
February 7, 2022
It also includes action by the City Council on October 5, 2020, adopting Resolution 2020- 52 for the 6th Cycle Housing Element Update certifying a Final PEIR (SCH No. 2020029064) and adopting a MMRP, which will apply to future housing development covered by Resolution 2020-48 (adopted September 8, 2020), Ordinance 971 (adopted September 21, 2020), Resolution 2021-12 (adopted March 15, 2021), and Ordinance 973 (adopted October 19, 2020). No new or substantially greater impacts would result from implementation of the LCPAs required per the 5th Cycle Housing Element Programs 2E (NC Zone) and 2F (PC Zone) or the 6th Cycle Housing Element Programs 1A (NC Zone) and 1B (PC Zone). As such, pursuant to CEQA Guidelines Sections 15162 and 15163, and based on the review of the entire record, including without limitation the Final PEIRs, the proposed action does not require further environmental review:
Final 6th Cycle PEIR:
www.delmar.ca.us/DocumentCenter/View/7171/Final-PEIR-91020 Final NC/PC PEIR:
www.delmar.ca.us/Archive.aspx?ADID=1428
NEXUS TO CITY COUNCIL GOALS AND PRIORITIES:
The requested action is operational in nature. However, the CCC modifications requested relate to prior policy decisions made by the City Council relating to City Council priorities including 5
th Cycle Housing Element implementation, 6th Cycle Housing Element, and Sea Level Rise Planning and Adaptation.
ATTACHMENTS:
Attachment A – Summary of Coastal Commission Staff’s Proposed Modifications Attachment B – CCC Permit and Appeal Jurisdiction Map
8 February 7, 2022 Item 15
Attachment A
1 Summary Matrix
Description of CCC Staff’s
Proposed Modification
Evaluation of LCP Consistency and
Suggested Edits to Facilitate Future
Permit Implementation (where
applicable)
1 LCP LUP Land Use
Designation/Allowed Uses List
Modifies the Land Use
Designation/Allowed Uses List in
the key of the land use
designation map for the LCP Land
Use Plan
Accept
CCC will be clarifying in an
Addendum to the CCC staff report
that the use type is “multiple
dwelling unit residential”, instead of
the initial version that stated
multiple dwelling unit “residences”
2 Criteria for multiple dwelling units to be an allowed use Section 30.24.030(C)
2.1 “Proposed projects shall be
consistent with the certified Local
Coastal Program”
Accept
2.2 “The density allowance of 20
dwelling units per acre may not
be located on parcels adjacent to
the San Dieguito River and
Lagoon as depicted in [Exhibit
7].”
Accept
CCC will be clarifying that the
reference to “Exhibit 7” is a staff
report exhibit showing the parcels
where multiple dwelling unit use is
prohibited. CCC expects the City to
incorporate this Exhibit into its LCP
and clarified the name/design of the
referenced Exhibit could be
modified accordingly.
2.3 “No additional subdivisions shall
be permitted.”
Clarification Recommended:
This is too broadly stated with
unintended consequences. For
example, it could preclude future
subdivision of a lot to create an
open space parcel from within an
existing lot in order to designate a
dedicated open space area and
convey it separately (i.e. for
9 February 7, 2022 Item 15
Attachment A
2 mitigation). CCC clarified it was not
their intent to include condominium
conversions within this limitation,
which also should be clarified in the
code language. Condo conversions
are a different form of ownership
(division of individual airspace rights
on a common lot), which does not
have any physical effect on the
environment. Condos have a higher
sale value that can help with the
economic feasibility of a housing
project that includes deed restricted
lower income units. Establishing
this form of ownership is subject to
the procedures of the Subdivision
Map Act (processing of subdivision
map or map waiver). Prohibiting
this form of unit ownership could be
considered a governmental imposed
constraint/economic impediment to
implementation of the City’s
Housing Element.
2.4 “If a proposed multiple dwelling unit project is located on a parcel that falls entirely or partially within the flood hazard areas identified on the 2019 FEMA Flood Insurance Rate Map (FIRM), the following shall apply:”
2.4a “Development shall be sited and
designed, including elevation and
floodproofing, to ensure safety
from the impacts of sea level rise
and flooding over the anticipated
lifetime of the proposed structure
using the best available science
on sea level projections (such as
the California State Sea Level Rise
Guidance (OPC 2018) and the
table for La Jolla in Appendix G of
Clarification Recommended:
It is unclear from this language what
standard is expected to be applied
during future permit review to
“ensure safety” from sea level rise
and flooding over the lifetime of a
structure. The applicable LCP
regulation to minimize flood risk in
the City’s certified LCP Floodplain
Overlay Zone requires development
to be appropriately sited and
10 February 7, 2022 Item 15
Attachment A
3 the Coastal Commission’s 2018
Sea Level Rise Policy Guidance);”
constructed to minimize flood
damage and avoid flood hazards.
CCC staff clarified they were trying
to provide flexibility and discretion.
However, this is too broadly stated
to serve as a code standard. Code
standards must be clearly stated and
consistent with the certified LCP to
facilitate implementation.
2.4.b. The landowner shall record a
notice on the property and notice
all occupants that:
i. The development is located in
the 2019 FEMA FIRM and as such
is located in a hazardous area or
an area that may become
hazardous in the future;
ii. Sea level rise and flooding
could render it difficult or
impossible to provide services to
the site;
iii. The boundary between public
land (tidelands) and private land
may shift with rising seas and the
development approval does not
permit encroachment onto public
trust land;
iv. Additional adaptation
strategies may be required in the
future to address sea level rise
and flooding consistent with the
Coastal Act and certified LCP; and
Clarification Recommended:
The CCC mod requires that, as a
condition of approval for future
housing development, that notice be
recorded on the title to a property.
CCC’s stated intent is to notice
property owners and residents with
material facts about risk associated
with flooding and sea level rise in
the NC zone so the public can make
informed decisions.
The statement under (v) is a typical
condition of locations that are not
eligible for the BPI-related
provisions for shoreline protection
in the existing LCP and can be
accepted. Also, if revised, (i) can be
accepted. Under (i), the concern is
that the initial language is labeling a
property as “hazardous” even in
cases where there is no supporting
basis. This creates inconsistencies
because these statements would be
recorded after permits are
approved. The site-specific context
of a proposed development is
needed for future determination of
11 February 7, 2022 Item 15
Attachment A
4 v. The permit and all successors
waive any rights under Coastal
Act Section 30235 and related
LCP policies to hard shoreline
armoring to protect the
development.
more specific conditions after a
given site has been evaluated and
considered by the decision maker.
Instead, a revised statement that
represents the context such as “The
property is located in the Floodplain
Overlay Zone
(2019 FEMA FIRM), which applies to
flood prone properties that are
subject to periodic inundation due
to flooding, including flooding
due to projected sea level rise.”
No additional statements are
needed for disclosure.
The City’s vulnerabilities to hazards
and plan to address them are
already disclosed in the General Plan
Safety Element, including an update
thereto that is currently in process.
The language the City is being asked
to require owners record in
subsections (ii) through (iv) is too
subjective, affects property value,
affects the owner’s ability for
financing, and is inconsistent with
the City’s vulnerability assessment
and sea level rise adaptation plan.
These are more relevant as policies
to be considered during the sitespecific permit review prior to a decision on a permit. They describe
a general worst case scenario
condition that is not reflective of the
site specific conditions or adaptation
measures implemented. The City’s
General Plan Safety Element already
12 February 7, 2022 Item 15
Attachment A
5 effectively discloses the City’s
vulnerabilities and hazards,
including projected sea level rise,
and local plan to adapt.
2.4.c. The permittee shall acknowledge
that the development may be
required to be removed or
relocated and the site restored if
the development becomes
unsafe for occupancy due to
future sea level rise or flood
hazard conditions.
Clarification Recommended:
The suggested language is too broad
as currently written and is unclear as
to how this would be implemented.
The concern is that it generally
specifies that development could be
required to be removed, which
reflects a planned retreat type of
strategy inconsistent with the City’s
Adaptation Plan. CCC staff is
considering revising this statement
to clarify this provision applies
specifically to a circumstance where
the Building Official determines
the development is unsafe for
occupancy, which would provide the
necessary clarification.
3. Deletion to Existing Reference to
Chapter 24.21
Section 30.24.070(A)(1)
Accept
4. Deletion to Existing Reference to
Chapter 24.21
Section 30.24.070(A)(1)
Accept
5. LCP Zoning Map
Designation/Allowed Uses List
Modifies the Zoning
Designation/Allowed Uses List in
the key of the zoning designation
map for the LCP Zoning map
Accept
13 February 7, 2022 Item 15
Post-LCPPermitandAppealJurisdictionMap–CityofDelMar
Updated: 3/17/2014
First Public Rd.
First Public Rd.
300' From Beach
Service Layer Credits: Sources: Esri, GEBCO, NOAA, National Geographic, DeLorme, HERE, Geonames.org, and other contributors : California Coastal Commission Technical Services Division This area includes only lands below the mean high tide line and lands where the public trust may exist.
This area includes lands between the sea and the designated first public road paralleling the sea or 300' from the inland extend of any beach or of the mean high tide line if there is no beach, whichever is the greater distance. Also included are lands within 100' of streams and wetlands and lands within 300' at the top of the seaward face of any coastal bluff.
CityBoundary
PermitJurisdiction
AppealJurisdiction
Ü 0 0.125 0.25 0.5 Miles
In some areas parcels are bisected by the appeal jurisdiction boundary. All development proposed within the appeal area defined as appealable is subject to the Commission's jurisdiction. In addition, if a development is proposed partly on the portion of the parcel that forms the basis for geographic appeal jurisdiction, and partly on the remainder of the parcel, and the Commission decides to hear the appeal, then the Commission reviews the action of the local government (section 30603(a)), which encompasses all the development that was authorized in the permit.
This map has been prepared to show where the California Coastal Commission retains post-LCP certification permit and appeal jurisdiction pursuant to P.R.C 30519(b), and 30603(a)(1) and (a)(2).
In addition, developments may also be appealable pursuant to P.R.C 20603(a)(3), (a)(4) and (a)(5). If questions arise concerning the precise locations of the boundary of any area defined in the above sections, the matter should be referred to the local government and/or the Executive Director of the Commission for clarification and information. This plot may be updated as appropriate and may not include all lands where post-LCP certification permit and appeal jurisdiction is retained by the Commission.
In addition to these geographic areas of appeal jurisdiction the following types of development are appealable throughout the coastal zone pursuant to PRC Section 20603 (a)(4) and (a)(5):
1. Any development approved by a county that is not
designated as a principal permitted use under zoning
approved pursuant to the applicable Local Coastal
Program;
2. Any development that constitutes a majore public
works project or a major energy facility.
14 February 7, 2022 Item 15
City of Del Mar
Agenda Report
________________________________________________________________________________________________________ City Council Action:
TO: Honorable Mayor and City Council Members
FROM: Ashley Jones, City Manager
Kristen M. Crane, Assistant City Manager
Sarah Krietor, Management Analyst/Acting City Clerk
DATE: February 7, 2022
SUBJECT: Preparations for 2022 City Council Goal Setting Workshop REQUESTED ACTION/RECOMMENDATION:
Staff recommends that the City Council provide feedback on the proposed 2022 City Council Goal Setting Workshop (Attachment A); and consider options for a City Council retreat and provide direction to staff as may be needed.
DISCUSSION/ANALYSIS:
Historically, in the beginning of each calendar year, the City Council holds a Goals & Priorities Setting Workshop (Workshop) to establish clear goals and priorities for the City, which helps guide the City’s workplan and identify budgetary needs. This year, the City is currently in the first of a two-year budget, so the purpose of the workshop will be to reevaluate and make any necessary adjustments to the work plan for the remainder of the current fiscal year and the previously identified workplan and adopted budget for Fiscal Year (FY) 2022-2023. In preparation for the 2022 Workshop, staff met with Mayor Worden and Deputy Mayor Martinez to develop the attached proposed Workshop outline.
The purpose of this agenda item is to seek input from the full Council in preparation for the Workshop.
Proposed Workshop Purpose & Format
The proposed format for the Workshop (Attachment A) includes a review of the current status of the adopted work plan for FY 2021-2022 and major work plan items anticipated by staff for FY 2022-2023; discussion of Council-identified interests; and priority setting for Fiscal Year 2022-2023. Due to the budget constraints associated with the COVID-19 pandemic, the City established a tiered priority system in 2020 with Tier 1 (essential services), Tier 2 (important items that support City operations/values) and Tier 3 (nonessential items that could be differed or eliminated). While the system was developed out of necessity, it has proved to be a simple and effective way to arrange the City Council goals, priorities, and operational necessities, and assists with effective development and 1 February 7, 2022 Item 16
City Council Agenda Report
2022 City Council Goal Setting Workshop Preparations
February 7, 2022
management of the City’s budget. Staff envisions using this system as part of reviewing proposed work plan items for FY 2022-2023 to help guide the discussion.
Workshop Scheduling
The City Council will receive a comprehensive mid-year budget update at the March 7, 2022, Council meeting. The mid-year budget update provides the City Council with an opportunity to review the City’s current financial status and to make any necessary adjustments to the original revenue projections and budget expenditure estimates.
Current information on the City’s financial position helps inform the City Council of the available resources and constraints when determining goals and priorities for the City.
As such, staff recommends holding the Workshop following the mid-year budget update during the week of March 7, 2022, based on City Council availability. It is anticipated that the City Council will need at least four (4) hours for the Workshop. If the City Council is supportive of this timing, the Acting City Clerk should be directed to poll the Council to determine a date and time for the Workshop.
Public Outreach
The Goal Setting Workshop is an opportunity for the City Council to hear directly from residents on their priorities. In addition to posting the Workshop on the website calendar, it will be featured in the Weekly Update, and the City’s email subscriber lists will be used to send e-blasts about the Workshop. The Workshop will also be featured in the News & Announcements section on the City’s website. As always with the City’s public meetings, members of the public can submit written comments in advance of the meeting or comment live during the meeting via Zoom. The meeting will be televised and live streamed on the internet and archived on the City’s website.
City Council Potential Interest in Team Building Retreat Historically, from time-to-time, the City Council has held a team building retreat. The City Council most recently held a team building retreat in January 2019. Council membership has changed since that time, and the City Council may wish to consider holding a team building retreat in 2022. Staff suggests that any team building retreat be held separately from the Goal Setting Workshop to allow the City Council adequate time for each.
Team building retreats can be held in a range of formats, with or without use of a professional facilitator. Past team building workshops have been held to conduct a Strengths, Weaknesses, Opportunities, and Threats (SWOT) analysis for the City; develop new or review the City’s core values and mission statement; and other strategic planning exercises. A retreat may also include a closed session discussion on how to work better together and communicate effectively to give direction to the City Manager and City Attorney to facilitate successful performance. 2 February 7, 2022 Item 16
City Council Agenda Report
2022 City Council Goal Setting Workshop Preparations
February 7, 2022
Staff recommends that the City Council provide direction to staff on whether a team building retreat is desired. If it is, the Council may wish to provide further direction to staff on the desired format and purpose of the retreat, if a facilitator is needed, and optimal timing for scheduling.
FISCAL IMPACT:
There is no immediate fiscal impact or action to be taken by the City Council related to this agenda item.
ENVIRONMENTAL IMPACT:
The proposed City Council action does not constitute a “project” under the definition set forth in California Environmental Quality Act (CEQA) Guidelines Section 15378 because it will not have a potential to result in a direct or indirect physical change in the environment and is, therefore, not subject to CEQA. No further action under CEQA is required.
NEXUS TO CITY COUNCIL GOALS AND PRIORITIES:
The 2022 Goal Setting Workshop is an operational item related to the City Council’s Goals and Priorities.
ATTACHMENTS:
Attachment A - 2022 Goal Setting Workshop Proposed Agenda Outline 3 February 7, 2022 Item 16
ATTACHMENT A
Proposed 2022 City Council Goal Setting Workshop Agenda A. High level Mid-Year Budget Report Recap
B. Review Current Adopted Workplan for FY 2021-2022
o Staff to provide an overview of current work plan items, status, and identify which items will continue into FY 2022-2023
C. Review Staff-Identified Needs for FY 2021-2022 & FY 2022-2023 o Staff to provide a list of projects and related costs that have been identified as needed for operations, safety, etc., consistent with Tier 1 and Tier 2 criteria
D. Review Council-Identified Interests/Potential Workplan Items o Staff to provide a list of Council-identified interests/potential workplan items for Council discussion and feedback
E. Discussion of FY 2022-2023 Goals and Priorities
o Council to refine list of potential goals and priorities considering staffidentified, Council identified, and other-identified potential work plan items.
o Staff will use this list to bring back a proposed work plan and any necessary modifications to the budget for FY 2022-2023 as part of the FY 2022-23 Budget Update
4 February 7, 2022 Item 16
City of Del Mar
Agenda Report
________________________________________________________________________________________________________ City Council Action:
TO: Honorable Mayor and City Council Members
FROM: Deputy Mayor Tracy Martinez and Councilmember Terry Gaasterland, City Council Housing Liaisons
DATE: February 7, 2022
SUBJECT: Council Discussion Regarding Del Mar Regional Housing Needs Assessment (RHNA) Allocation and Related Data
REQUESTED ACTION/RECOMMENDATION:
Deputy Mayor Martinez and Councilmember Gaasterland request that the Council discuss concerns related to the City’s RHNA allocation and provide direction to the Council Housing Liaisons and City staff as further described in this agenda report.
BACKGROUND:
The San Diego Association of Governments (SANDAG) revised the jobs count for the City of Del Mar in between the Regional Housing Number Allocation (RHNA) and the Regional Transportation Plan (RTP). Their 2018 calculation yielded 4,484 jobs in the City of Del Mar.
Their 2021 calculation yielded 3,128 jobs and corrected the count downward by 30%.
Historically, the City of Del Mar has estimated its jobs count as being approximately 2,500 annually based on business permits and informal surveys.
SANDAG allocated 163 housing units (including 101 lower income) to the City of Del Mar based on the jobs count of 4,484. In addition, Del Mar was assigned 12 lower income penalty units for a total of 175 (including 113 lower income). If the SANDAG RHNA assignment had been based on 3,128 jobs, Del Mar’s RHNA would presumably be reduced by 30% to 115 (including 71 lower income) plus the 12 penalty units. With 20% affordable units in a new development, a 5X multiplier is applied to the total number of affordable units to calculate the total units overall needed to generate the affordable units. See Table 1 and SANDAG references.
SANDAG Jobs / Units Original Revised (using a 30%
reduction)
SANDAG Jobs Number 4484 3128
RHNA Number Overall Units 163+12 = 175 115+12 = 127
RHNA Affordable Units 101+12 = 113 71+12 = 83
City Staff Estimate of total units built
to get to affordable units
(5X multiplier applied to Affordable)
565 415
1 February 7, 2022 Item 17
City Council Agenda Report
Del Mar RHNA Allocation
February 7, 2022
SANDAG References
Background, model, and "input data":
https://sdforward.com/mobility-planning/data-driven-planning https://github.com/SANDAG/ABM/tree/ABM2_TRUNK/input
https://github.com/SANDAG/ABM
Employment Center Table:
https://www.sandag.org/uploads/projectid/projectid_581_25917.pdf Employment Center Map:
https://www.arcgis.com/home/webmap/viewer.html?url=https%3A%2F%2Fgis.sandag.org%2Fs dgis%2Frest%2Fservices%2FRegionalVision%2F5BM_Employment_Center_Outlines%2FMap Server&source=sd
The employment centers were derived from state employment data. The SANDAG analysis assigned the following total numbers of employees to the employment centers in the coastal North County cities and to other three SANDAG small cities:
Employees Jurisdiction Employment Centers
3,128 Del Mar Small City
11,813 Solana
Beach
Small City
19,750 Encinitas 3 Centers
59,387 Carlsbad 3 Centers
36,619 Oceanside 6 centers
5,016 Imperial
Beach
Small city
5,449 Coronado Small City
7,395 Lemon
Grove
Small City
DISCUSSION/ANALYSIS:
It is critical that the City of Del Mar and its residents and homeowners be provided with a clear, reproducible calculation of jobs in the City based on transparent formulas, maps, and input data. Specifically, we recommend that the City Council direct the Housing Liaisons and City staff to request the following from SANDAG staff:
1. The underlying data and calculation that yielded 4,484 jobs in Del Mar, including a breakdown as follows: a) full-time jobs; b) primary part-time jobs in the case of someone who has more than one job; c) part-time jobs that are not primary part-time jobs; and d) seasonal, transient, or temporary jobs. For any seasonal, transient or temporary jobs, please provide the list, number, type and duration of the jobs.
2. The underlying data and calculation that yielded 3,128 jobs in Del Mar, including a breakdown as follows: a) full-time jobs; b) primary part-time jobs in the case of someone who has more than one job; c) part-time jobs that are not primary part-time jobs; and d) 2 February 7, 2022 Item 17
City Council Agenda Report
Del Mar RHNA Allocation
February 7, 2022
seasonal, transient, or temporary jobs. For any seasonal, transient or temporary jobs, please provide the list, number, type and duration of the jobs.
3. The RHNA calculation (including detailed methodology) with the original 4,484 jobs.
4. The RHNA calculation (including detailed methodology) with the revised 3,128 jobs.
5. All data sources that SANDAG relied on for jobs calculations.
6. The City boundaries that SANDAG used to calculate jobs. ➢ All of 92014? San Diego streets?
➢ Were homes and business in 92014 but outside Del Mar boundaries included in the count?
7. Were seasonal, transient, or temporary jobs included in the RHNA jobs count? ➢ If so, were these jobs pro-rated by portion of year? (e.g., a 6-week seasonal jobs = 0.115 job)
FISCAL IMPACT:
There is no immediate fiscal impact or action to be taken by the City Council related to this agenda item.
ENVIRONMENTAL IMPACT:
The proposed City Council action does not constitute a “project” under the definition set forth in California Environmental Quality Act (CEQA) Guidelines Section 15378 because it will not have a potential to result in a direct or indirect physical change in the environment and is, therefore, not subject to CEQA. No further action under CEQA is required.
NEXUS TO CITY COUNCIL GOALS AND PRIORITIES:
This is not an item currently identified as a City Council goal or priority, and is not included on the City’s workplan.
3 February 7, 2022 Item 17