(Ord. No. 811, § 1(part), 2008)
24.65.110 Development agreement—Hearing by City Council.
A. Upon receipt of the application and the written recommendation of the Planning Commission, the City Council shall set a date for a public hearing on the matter.
B. The City Clerk shall insure that the public is given notice of the public hearing in accordance with Section
24.65.070.
C. The public hearing shall be conducted as required by Section 24.65.080. (Ord. No. 811, § 1(part), 2008)
24.65.120 Action by City Council.
A. After the public hearing, the City Council may approve, modify or disapprove the recommendation of the Planning Commission. It may refer back to the Planning Commission, for report and recommendation, matters not previously considered by the Planning Commission.
B. Upon receipt of a referral as set forth in Subsection A., the Planning Commission, without further public hearing, shall consider the new matters and report its recommendations in writing to the City Council within 40 days after receipt of said referral. Failure to act within the 40-day limit shall constitute a favorable endorsement on the matters set forth in the referral.
C. If the City Council approves the development agreement it shall do so by ordinance. (Ord. No. 811, § 1(part), 2008)
24.65.130 Requirements for approval.
No development agreement may be approved by the City Council unless all of the following conditions are met:
A. The City Council must find that:
1. The provisions of the agreement are consistent with the Community Plan and any applicable specific plan, and
2. The development agreement complies with all applicable zoning, subdivision, and building regulations and with the general and any relevant specific plan.
B. The agreement must state:
1. The specific duration of the agreement;
2. The permitted uses of the property;
3. The density and intensity of use;
4. The maximum height and size of proposed buildings;
5. Specific provisions for reservation or dedication of land for public purposes. (Ord. No. 811, § 1(part), 2008)
40 July 11, 2022 Item 11
Created: 2022-01-04 11:02:14 [EST]
(Supp. No. 7, Update 2)
24.65.140 Effective date of development agreement.
In adopting this Chapter, the City Council recognizes the fact that a development agreement is a legislative act which is subject to referendum. Therefore, notwithstanding the fact that the City Council adopts an ordinance approving a development agreement and causes said agreement to be signed, said agreement shall be effective and shall only create obligations on the part of the City from and after the date that the ordinance approving said development agreement takes effect.
(Ord. No. 811, § 1(part), 2008)
24.65.150 Development agreement—Amendment or cancellation.
Either party may propose an amendment to or cancellation in whole or in part of a development agreement previously entered into. However, with the exception of modification or revocation pursuant to Sections 24.65.190 through 24.65.240, both parties must agree in writing to an amendment, or cancellation, of a development agreement before it shall be effective.
(Ord. No. 811, § 1(part), 2008)
24.65.160 Amendment or cancellation procedure.
A. The procedure for proposing an adoption of an amendment to or cancellation in whole or in part of the development agreement is the same as the procedure for entering into an agreement in the first instance as outlined in this Chapter.
B. However, where the City Council initiates the proposed amendment to or cancellation in whole or in part of the development agreement, it shall first give notice to the property owner of its intention to initiate such proceedings at least 15 calendar days in advance of the giving of notice of the public hearing regarding the amendment or cancellation pursuant to Section 24.65.070. (Ord. No. 811, § 1(part), 2008)
24.65.170 Recordation of development agreement, amendment or cancellation.
A. Within ten days after the effective date of the development agreement, the City Clerk shall have the agreement recorded with the County Recorder.
B. If the parties to the agreement or their successors in interest amend or cancel the agreement as provided in Government Code § 65868, or if the City terminates or modifies the agreement as provided in Government Code § 65865.1 for failure of the applicant to comply in good faith with the terms or conditions of the agreement, the City Clerk shall have notice of such action recorded with the County Recorder. (Ord. No. 811, § 1(part), 2008)
24.65.180 Development agreement—Duration.
The City Council may establish the term of a development agreement at the time said development agreement is approved by the City Council.
(Ord. No. 811, § 1(part), 2008)
41 July 11, 2022 Item 11
Created: 2022-01-04 11:02:14 [EST]
(Supp. No. 7, Update 2)
24.65.190 Same—Periodic review.
A. Notwithstanding the provisions of Section 24.65.180, periodic reviews of the development agreement shall be conducted as follows:
1. The City Council shall review the development agreement at least once every 12 months after the effective date of the adopting ordinance (hereinafter "annual review").
2. The City Council may, on its own motion or on the advice of the City Manager, review the development agreement more often than once every 12 months as it is deemed necessary (hereinafter "special review").
3. The City Council may delegate or refer the periodic review of the development agreement to the City Manager or his/her designated representative.
(Ord. No. 811, § 1(part), 2008)
24.65.200 Notice of periodic review.
Notice of periodic review shall be given as follows:
A. Notice to Developer.
1. The Director of Planning and Community Development shall give the developer 30 calendar days' advance notice of annual review, by placing such notice to the developer into the U.S. Mail, first class, postage prepaid, and addressed to such address as the developer has listed in the development agreement.
2. The City Clerk shall give the developer notice of a special review in the same manner as provided in Subsection A.1. above for annual review.
B. Notice to the Public. Public notice of annual or special reviews shall be accomplished as set forth in Section 24.65.070.
(Ord. No. 811, § 1(part), 2008)
24.65.210 Periodic review—Hearing, burden, findings.
A. Any periodic review conducted pursuant to Section 24.65.190 shall be accomplished in the form of a public hearing as required by Section 24.65.080.
B. The burden shall be on the developer, or his successor in interest, to demonstrate good-faith compliance with the terms of the agreement.
C. At the conclusion of the public hearing, the City Council shall make findings regarding whether or not the developer has, for the period under review, complied in good faith with the terms and conditions of the agreement.
(Ord. No. 811, § 1(part), 2008)
42 July 11, 2022 Item 11
24.65.220 Same—Action by council.
A. If the City Council finds and determines on the basis of the evidence given that the property owner has complied in good faith with the terms and conditions of the agreement during the period under review, the review for that period shall be concluded.
B. If the City Council finds and determines on the basis of substantial evidence that the property owner has not complied in good faith with the terms and conditions of the agreement during the period under review, the council may modify or terminate the agreement.
C. If the periodic review has been referred by the City Council to the City Manager or his/her designated representative, the determination resulting from said review shall be appealable in writing to the City Council within ten calendar days after the final action. A hearing shall be conducted in accordance with the City Council's rules for consideration of appeals.
D. If the periodic review is conducted by the City Council, the determination resulting from said review shall be deemed to be final for all purposes.
(Ord. No. 811, § 1(part), 2008)
24.65.230 Same—Modification or termination of agreement—Public hearing, notice.
A. If, upon a finding pursuant to Subsection 24.65.220.B., the City determines to proceed with modification or termination of the agreement, the City shall set a hearing date and give notice to the property owner and the public of the hearing. Said notice shall be given in the manner set forth in Sections 24.65.200 and 24.65.070.
B. In addition to the informational content required by Sections 24.65.200 and 24.65.070, the notice required by this Section shall contain:
1. A statement concerning whether the City proposes to terminate or to modify the development agreement;
2. Other information which the City considers necessary to inform the property owner of the nature of the proceedings.
(Ord. No. 811, § 1(part), 2008)
24.65.240 Same—Modification or termination—Hearing.
A. Any public hearing on the subject of modification or termination of the agreement based upon a periodic review, shall be conducted in the manner prescribed by Section 24.65.080.
B. Upon concluding said hearing, the City Council may take whatever action it deems necessary to protect the interests of the City.
C. The decision of the City Council shall be final.
(Ord. No. 811, § 1(part), 2008)
43 July 11, 2022 Item 11
DA EXHIBIT B
Legal Description of the Development Site
LOTS 4, 5, AND 6 IN BLOCK 62 OF DEL MAR, IN THE CITY OF DEL MAR, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 368, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, OCTOBER 7, 1885, TOGETHER WITH THAT PORTION OF THE SOUTHERLY 20.00 FEET OF TENTH STREET AS SHOWN ON SAID MAP, WHICH LIES NORTHERLY OF AND
IMMEDIATELY ADJOINS SAID LOTS, AS VACATED AND CLOSED TO PUBLIC USE BY ORDER OF THE BOARD OF SUPERVISORS OF SAID SAN DIEGO COUNTY, RECORDED APRIL 16, 1926 IN BOOK 1209, PAGE 125
OF DEEDS, TOGETHER WITH THAT PORTION OF THE NORTHERLY HALF OF THE ALLEY AS SHOWN ON
SAID MAP, WHICH LIES SOUTHERLY OF AND IMMEDIATELY ADJOINS SAID LOTS, AS VACATED AND CLOSED TO PUBLIC USE BY ORDER OF SAID BOARD OF SUPERVISORS, RECORDED MAY 17, 1929 IN BOOK 1613, PAGE 470 OF DEEDS.
APN: 300-221-33-00 and 300-221-32-00
44 July 11, 2022 Item 11
DA EXHIBIT C
2131\01\3253325.2
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of Del Mar
City Clerk’s Office
1050 Camino Del Mar
Del Mar, CA 92014
THE AREA ABOVE IS RESERVED FOR RECORDER'S USE
APN No. 300-221-32 and 300-221-33
This Regulatory Agreement is recorded at the
request and for the benefit of the City of Del
Mar and is exempt from the payment of a
recording fee pursuant to Government Code
Sections 27383.
This Regulatory Agreement and Declaration of Restrictive Covenants (“Agreement”) is between DM Asset Recovery LP, a California limited partnership (“Property Owner”) and the City of Del Mar, a municipal corporation (“City”).
RECITALS
A. Property Owner owns certain real property located in the City of Del Mar, County of San Diego, California consisting of approximately 25,524 square feet located at the southeast corner of Camino Del Mar and 10th Street (APN 300-221-32 and 300-221-33) and more specifically described in Exhibit A, attached hereto and incorporated herein by this reference (“Property”).
B. Property Owner submitted a Specific Plan to the City, commonly known as the 941 Camino del Mar Specific Plan, which provides the vision, standards, and guidelines for development of the Property.
C. On June 18, 2018, the City Council adopted the Specific Plan, and the Plan was subsequently approved by a public vote on November 6, 2018.
D. The Specific Plan requires that 20% of the market rate Residential Hospitality units plus one additional residential unit developed on the Property must be affordable housing and provides that density calculations resulting in a fraction of one-half (0.5) or greater of a residential unit shall be rounded up to the next whole number and a remaining fraction of less than one-half shall be rounded down. Upon completion of construction the Property Owner intends to offer 45 July 11, 2022 Item 11
2 for sale the resulting two (2) affordable units to the City or to income-qualifying households at the Restricted Sales Price (as defined below).
E. Property Owner and City have entered into a Development Agreement which sets forth specific exceptional benefits, including the affordable housing requirements, to be implemented by the Property Owner in connection with the development of the Property and consistent with the requirements of the Specific Plan.
F. The Property Owner and City now desire to enter into this Agreement to set forth their agreement regarding the affordable housing restrictions with respect to the residential units and to cause the affordable housing restrictions to run with the land.
NOW, THEREFORE, the Property Owner and City hereby agree as follows:
1. Definitions
Unless otherwise defined herein or in the Development Agreement (as such term is defined below), capitalized terms used in this Regulatory Agreement shall have the respective meanings assigned to them in this Section 1:
1.1 "Actual Household Size" means the actual number of persons in the applicable household.
1.2 “Adjusted Income” shall mean the adjusted income of all persons who intend to reside in one residential unit, calculated in the manner consistent with determinations of household income for low-income families by the California Department of Housing and Community Development, as calculated in accordance with 25 California Code of Regulations Section 6914 or pursuant to a successor State housing program that utilizes a reasonably similar method of calculation of adjusted income.
1.3 “Development Agreement” means that certain Development Agreement between the City and Property Owner dated as of , 2022, as it may be amended from time to time.
1.4 “Median Income for the Area” shall mean the gross yearly median income for San Diego County adjusted for household size as most recently published by the California Department of Housing and Community Development. In the event that such income determinations are no longer published, or are not updated for a period of at least eighteen (18) months, the City shall provide the Developer with other income determinations which are reasonably similar with respect to methods of calculation to those previously published by the State.
1.5 “Parties” shall mean City and Property Owner.
46 July 11, 2022 Item 11
3 1.6 “Project” means collectively the Property and the structures and related buildings, and other improvements located on the Property from time to time together with all fixtures and other property owned by the Property Owner and located on, or used in connection with, such buildings, structures, and other improvements.
1.7 “Property” means the real property legally described in Exhibit A which is attached hereto and by this reference incorporated herein.
1.8 “Qualified Project Period” shall mean the period beginning upon the certification of occupancy of the Restricted Units and ending on the date which is fifty-five (55) years after the beginning of the Qualified Project Period.
1.9 “Qualified Household” shall mean the individuals occupying the Restricted Units with Adjusted Income meeting the maximum qualifying income level, adjusted for household size appropriate for the unit to be purchased.
1.10 “Regulatory Agreement” or “Agreement” means this Regulatory Agreement.
1.11 “Restricted Sales Price” means the initial sale price that will result in a Qualified Household’s annual housing expenses (average monthly payments, including property taxes, homeowner's insurance, homeowner's association dues, if any, mortgage loan principal and interest, mortgage insurance, and a reasonable allowance for utilities (as provided by the City) not exceeding the "affordable housing cost" as defined in Health and Safety Code Section 50052.5(b)(3) for Low Income Households and Section 50052.5(b)(2) for Very Low Income Households, adjusted for household size appropriate for the unit, consistent with formula described in attached Exhibit B. “Household size appropriate for the unit” means one person for a studio and two persons for a one-bedroom unit. “Maximum qualifying income level means:
For Low-Income Households: an individual or household whose gross income is 80% or less of the Median Income for the Area, adjusted for household size computed pursuant to California Health and Safety Code sections 50079.5 and 50052.5, as may be amended.
Very Low-Income Households: an individual or household whose gross income is 50% or less of the Median Income for the Area, adjusted for household size computed pursuant to California Health and Safety Code sections 50079.5 and 50052.5, as may be amended.
All maximum Restricted Sale Price for each subsequent sale shall be governed under the terms of the Deed Restriction.
1.12 “Restricted Unit” or “Restricted Units” means the affordable residential hospitality units identified in Exhibit C attached hereto and incorporated herein 47 July 11, 2022 Item 11
4 required to be sold to the City or to Qualified Households pursuant to the terms, covenants, and conditions of this Agreement.
1.13 “Owner Occupied” means that the owner(s) of a Restricted Unit occupying said unit as their primary residence for at least ten (10) months out of each calendar year, subject to temporary waivers of this occupancy requirement for good cause such as to facilitate sale of the Restricted Unit to a Qualified Household, illness, temporary job relocation, military deployment, or sabbatical. If and to the extent the City acquires the unit, Owner Occupied shall be understood to mean occupancy by an income eligible household selected by the City.
2. Property Owner hereby represents, warrants and covenants as follows:
(a) Use of Restricted Units.
As part of the initial sale of the RESTRICTED UNITS the Owner shall cause to be recorded with the San Diego County Recorder’s office a legally enforceable Deed Restriction in form substantially similar to that attached hereto as Exhibit D and approved as to form by the Del Mar City Attorney limiting and requiring the initial sale of the RESTRICTED UNITS of the PROJECT to the City or to QUALIFIED HOUSEHOLDS for no more than the RESTRICTED SALES PRICE, as determined by the City. Property Owner and successor owners of the RESTRICTED UNITS shall not sell or permit the sale of any RESTRICTED UNIT in the PROJECT except as provided in the Deed Restriction for the entire QUALIFIED PROJECT PERIOD. If and to the extent the City acquires the RESTRICTED UNITS, then the City shall cause a use restriction to be recorded against the fee interest in the RESTRICTED UNITS acquired by the City to ensure the unit remains affordable to Qualified Households in perpetuity.
Pursuant to the Deed Restriction, each RESTRICTED UNIT shall be OWNER OCCUPIED for the entire QUALIFIED PROJECT PERIOD, as verified to the City through submission of an annual “Owner Occupied Annual Certification” form substantially similar to that attached hereto as Exhibit E and approved as to form by the Del Mar City Attorney. No leasing or renting, of any RESTRICTED UNIT shall be permitted. No RESTRICTED UNITS or any portion of a RESTRICTED UNUT shall be offered or let as Short Term Rentals. If and to the extent the City or a City designee acquires the RESTRICTED UNITS, the RESTRICTED UNIT may be rented to an income eligible household at an affordable rent as defined in Health and Safety Code Section 50053.
Each RESTRICTED UNIT shall be burdened with the covenants delineated in the Deed Restriction, which covenants shall run with the land applicable to each RESTRICTED UNIT for the benefit of the City, which may enforce the covenants and compel compliance therewith. (b) First Sale of Restricted Units.
For the first sale of RESTRICTED UNITS, Property Owner shall sell the RESTRICTED UNITS to the City (the "City Option") or a QUALIFIED HOUSEHOLD for no more than the RESTRICTED SALES PRICE. If the City opts not to purchase, Property Owner 48 July 11, 2022 Item 11
5 shall adopt and submit to the City for approval, written purchaser selection policies and criteria that meet, at a minimum, all the following requirements:
a. Are consistent with the purpose of providing housing for QUALIFIED HOUSEHOLDS.
b. Provide for:
i. The selection of QUALIFIED HOUSEHOLDS from a written waiting list in the chronological order of their application in so far as is practicable;
ii. The prompt written notification to any rejected applicant of the grounds for any rejection.
c. Carry out the affirmative marketing procedures of the City, to provide information and otherwise attract eligible persons from all racial, ethnic and gender groups in the housing market area to the program. Property Owner and City shall cooperate to effectuate this provision prior to the first sale of each RESTRICTED UNIT.
The City may, instead of purchasing the RESTRICTED UNITS itself, assign its right to purchase the RESTRICTED UNITS pursuant to the City Option to another public agency, a nonprofit corporation, or to a Qualified Household. In the event the City desires to exercise the City Option, the City shall provide Property Owner written notice within ninety (90) days of the date when permitted (vertical) construction of street-level walls commences. Written notice of vertical construction shall be provided to the City by the Developer. Within ninety (90) days of City election to exercise its purchase rights, the City or its assignee shall execute a binding agreement to purchase the RESTRICTED UNITS. Title shall be delivered by the Owner to the City by grant deed, free and clear of any mortgage or other liens, unless approved in writing by the City. (c) Second and Subsequent Sales of Restricted Units
All subsequent sales of RESTRICTED UNITS sold to QUALIFIED HOUSEHOLDS will be governed by the Deed Restriction recorded at the time of initial sale. Subsequent sales of RESTRICTED UNITS sold to the City (or a City designee) shall be subject to the use restriction that requires the owner to ensure the unit remains affordable to Qualified Households. (d) Nondiscrimination Covenant.
Property Owner herein covenants by and for itself, its heirs, executors, administrators, successors, and assigns, and all persons claiming under or through them: That there shall be no discrimination against or segregation of any person or group of persons, on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the PROPERTY, nor shall Property Owner itself or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy of tenants, lessees, subtenants, sublessees, or vendees of the PROPERTY. 49 July 11, 2022 Item 11
6 a. Property Owner, its successors, and assigns, shall refrain from restricting the sale of the PROPERTY or any portion thereof, on the basis of race, color, creed, religion, sex, sexual orientation, marital status, national origin, or ancestry of any person. Every deed and contract entered with respect to the PROPERTY, or any portion thereof, shall contain or be subject to substantially the following nondiscrimination or non-segregation clauses:
(1) In deeds: “The grantee herein covenants by and for themselves, or their heirs, executors, administrators, and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the premises herein conveyed, nor shall the grantee or any person claiming under or through themselves establish or permit any practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees, or vendees in the premises herein conveyed. The foregoing covenants shall run with the land.”
(2) In contracts: “There shall be no discrimination against or segregation of any person or group of persons, on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the land, nor shall the transferee itself or any person claiming under or through themselves establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy, of tenants, lessees, sublessees, subtenants, or vendees of the land.”
3. Maintenance; Compliance with Law.
During the QUALIFIED PROJECT PERIOD, Property Owner agrees to pay all required homeowners’ association dues and to maintain all interior and exterior improvements, including landscaping on the PROJECT in good condition, repair and sanitary condition (and as to landscaping in a healthy condition) and in accordance with any management plan approved by the City under this Agreement as the same may be amended from time to and all other applicable laws, rules ordinances orders and regulations of federal state, county or municipal and other governmental agencies and bodies having or claiming jurisdiction. 50 July 11, 2022 Item 11
7 4. Consideration.
The City approved the PROJECT entitlements in part in reliance upon the Property Owner providing the affordable housing as set forth in this Agreement. In consideration for the City approvals Property Owner has entered into this Agreement and has agreed to restrict the RESTRICTED UNITS of the PROJECT on the terms and conditions set forth herein and to grant the City an option to acquire the RESTRICTED UNITS at the RESTRICTED SALES PRICE.
The requirements of the of this Agreement, shall be satisfied with respect to the Property if the Owner constructs or causes to be constructed the RESTRICTED UNITS and the RESTRICTED UNITS are sold to the City or to Eligible Buyers.
5. Sale or Transfer of the Project.
Property Owner hereby covenants and agrees not to voluntarily sell, transfer, or otherwise dispose of the PROPERTY or the PROJECT without obtaining the prior written consent of the City, which will not be unreasonably withheld. Each transferee shall expressly assume all applicable obligations of Property Owner imposed by this Agreement. Notwithstanding anything herein to the contrary, this section shall not apply to a foreclosure under any construction or permanent financing related to the construction, development, or operation of the PROJECT. Property Owner shall not sell the Project prior to completion of construction unless it first obtains the City’s approval of any prospective purchaser, such approval not to be unreasonably withheld. Property Owner shall ensure that such purchaser can demonstrate to the City it has experience in operating projects of relatable scope to the Project, and that the purchaser does not have a record of substantial loan defaults, maintenance problems, building code violations, or substantiated fair housing or other complaints at properties it owns and/or operates. Within 30 days of receiving notice of the sale and information regarding the prospective purchaser, the City shall exercise its right to approve or disapprove the prospective purchaser. Sale of individual market rate units or commercial units shall not require City review and approval. Sale of the Project after construction shall not require City review and approval.
6. Term.
This AGREEMENT and all and each of the provisions hereto shall become effective upon its execution and delivery, shall remain in full force and effect for a period of fifty-five (55) years from the date of issuance of certificate of occupancy for the last of the RESTRICTED UNITS, it being expressly agreed and understood that the provisions hereof are intended to survive termination of the DEVELOPMENT AGREEMENT.
7. Covenants to Run with the Land.
(a) All conditions, covenants , and restrictions contained in this AGREEMENT shall be covenants running with the land, and shall, in any event, and without regard to technical classification or designation, legal or otherwise, be, to the fullest extent permitted by law and equity, binding for the benefit and in favor of, and enforceable by City, its 51 July 11, 2022 Item 11
8 successors and assigns, against Property Owner, its successors and assigns, to or of the PROJECT or any portion thereof or any interest therein, and any party in possession or occupancy of said PROJECT or portion thereof.
(b) In amplification and not in restriction of the provisions set forth hereinabove, it is intended and agreed that City shall be deemed a beneficiary of the AGREEMENTS and covenants provided hereinabove both for and in its own right and also for the purposes of protecting the interests of the community. All covenants without regard to technical classification or designation shall be binding for the benefit of City and such covenants shall run in favor of City for the entire period during which such covenants shall be in force and effect, without regard to whether City is or remains an owner of any land or interest therein to which such covenants relate. City shall have the right, in the event of any breach of any such agreement or covenant, to exercise all the rights and remedies, and to maintain any action at law or suit in equity or other proper proceedings to enforce the curing of such breach of AGREEMENT or covenant.
(c) The City and its successors and assigns, and Property Owner and the permitted successors and assigns of Property Owner in and to all or any part of the fee title to the PROJECT shall jointly have the right upon written agreement signed by both PARTIES to consent and agree to changes in, or to eliminate in whole or in part, any of the covenants, easements, or restrictions contained in this AGREEMENT without the consent of any tenant, lessee, easement holder, licensee, mortgagee, trustee, beneficiary under a deed of trust, or any other person or entity having any interest less than a fee in the PROJECT. The covenants contained in this AGREEMENT, without regard to technical classification shall not benefit or be enforceable by any owner of any other real property within or outside the PROJECT, or any person or entity having any interest in any other such realty.
(d) No breach of any of the provisions of this AGREEMENT shall impair, defeat, or render invalid the lien of any mortgage, deed of trust or like encumbrance made in good faith and for value encumbering the PROPERTY or the PROJECT or any portion thereof.
8. Burden and Benefit.
The City and the Property Owner hereby declare their understanding and intent that the burden of the covenants set forth herein touch and concern the PROPERTY and the PROJECT in that the Property Owner’s legal interest in the PROJECT may be rendered less valuable thereby. The City and the Property Owner hereby further declare their understanding and intent that the benefit of such covenants touching and concerning the land is the enhancement and increased enjoyment and use of the PROJECT by QUALIFIED TENANTS, the intended beneficiaries of such covenants, reservations, and restrictions, and by the furthering of public purposes for which the entitlements were approved.
9. Uniformity; Common Plan.
The covenants, reservations and restrictions hereof shall apply uniformly to the entire PROJECT to establish and carry out a common plan for the use, development, and 52 July 11, 2022 Item 11
9 improvement of the PROJECT.
10. Default.
Each of the following shall constitute an “Event of Default” by Property Owner under this AGREEMENT:
(a) Non-Monetary Failure to Perform. Property Owner fails to construct the RESTRICTED UNITS or otherwise fails to timely perform, comply with, or observe any of the terms, covenants, or-conditions of this AGREEMENT (other than those provisions elsewhere referred to in this Section 12) and such failure continues uncured or without Property Owner commencing to diligently cure for thirty (30) days after notice thereof in writing is given by the City to Property Owner; provided if Property Owner has commenced cure but cannot complete such cure reasonably within 30 days. Property Owner shall have 90 days from the date of notice to cure such failure without such failure constituting an event of default.
(b) Voluntary Suspension. The voluntary suspension of Property Owner business or the dissolution or termination of the partnership (if any) constituting Property Owner; (c) Unauthorized Transfer. Property Owner sale or other transfer of the PROJECT in violation of this AGREEMENT;
(d) Insolvency. A court having jurisdiction shall have made or entered any decree or order (i) adjudging Property Owner to be bankrupt or insolvent, (ii) approving as properly filed a petition seeking reorganization of Property Owner or seeking any arrangement for Property Owner under the bankruptcy law or any other applicable debtor's relief law or statute of the United States or any state or other jurisdiction, (iii) appointing a receiver, trustee , liquidator, or assignee of Property Owner in bankruptcy or insolvency or for any of their properties, or (iv) directing the winding up or liquidation of Property Owner, if any such decree or order described in clauses (i) to (iv), inclusive, shall have continued unstayed or undischarged for a period of ninety (90) days unless a lesser time period is permitted for cure under any mortgage on the PROPERTY, in which event such lesser time period will apply under this subsection 12 (d) as well; or Borrower shall have admitted in writing its inability to pay its debts as they fall due or shall have voluntarily submitted to or filed a petition seeking any decree or order of the nature described in clauses (i) to (iv), inclusive.
11. Remedies.
The occurrence of any Event of Default shall, either at the option of the City or automatically where so specified, give the City the right to proceed with any and all remedies set forth in this AGREEMENT or otherwise available at law or in equity or by statute (and all of the City's rights and remedies shall be cumulative), including but not limited to the following:
(a) Specific Performance. The City shall have the right to mandamus or other suit, 53 July 11, 2022 Item 11
10 action or proceeding at law or in equity to require Property Owner to perform its obligations and covenants under this AGREEMENT and/or to enjoin acts on things, which may be unlawful, or in violation of the provisions of this AGREEMENT. (b) Remedies Cumulative. No right, power, or remedy given to the City by the terms of this AGREEMENT is intended to be exclusive of any other right, power, or remedy; and each and every such right, power, or remedy shall be cumulative and in addition to every other right, power, or remedy given to the City by the terms of any such instrument, or by any statute or otherwise against Property Owner and any other person. Neither the failure nor any delay on the part of the City to exercise any such rights and remedies shall operate as a waiver thereof, nor shall any single or partial exercise by the City of any such tight or remedy preclude any other or further exercise of such right or remedy, or any other right or remedy. (c) Waiver of Terms and Conditions. No waiver of any default or breach by Property Owner hereunder shall be implied from any omission by the City to take action on account of such default if such default persists or is repeated, and no express waiver shall affect any default other than the default specified in the waiver, and such waiver shall be operative only for the time and to the extent therein stated. Waivers of any covenant, term, or condition contained herein shall not be construed as a waiver of any subsequent breach of the same covenant, term, or condition. The consent or approval by the City to or of any act by Property Owner requiring further consent or approval shall not be deemed to waive or render unnecessary the consent or approval to or of any subsequent similar act. The exercise of any right, power, or remedy shall in no event constitute a cure or a waiver of any default under this AGREEMENT nor shall it invalidate any act done pursuant to notice of default or prejudice the City in the exercise of any right, power, or remedy hereunder unless in the exercise of any such right, power, or remedy all obligations of Property Owner to City have been satisfied.
12.Recording and Filing.
The Property Owner shall cause this AGREEMENT, and all amendments and supplements hereto and thereto, to be recorded and filed in the real property records of the County of San Diego and in such other places as the City may reasonably request. The Property Owner shall pay all fees and charges incurred in connection with any such recording.
13. Governing Law.
This AGREEMENT shall be governed by the laws of the State of California. In the event of any legal action to enforce or interpret this AGREEMENT, the sole and exclusive venue shall be a court of competent jurisdiction located in the County of San Diego, California, and the PARTIES hereto agree to and do hereby submit to the jurisdiction of such court, notwithstanding Code of Civil Procedure Section 394.
14. Amendments.
This AGREEMENT shall be amended only by a written instrument executed by the 54 July 11, 2022 Item 11
11 PARTIES hereto, or their successors in title and duly recorded in the real property records of the County of San Diego.
15. Notices.
(a) Any notice required to be given hereunder shall be made in writing and shall be given by personal delivery, certified or registered mail, postage prepaid, return receipt requested, at the addresses specified below, or at such other addresses as may be specified in writing by the PARTIES hereto:
If to City, to: City of Del Mar City Hall
1050 Camino Del Mar
Del Mar, CA 92014
Attn: City Manager
Telephone: (858) 755-9313
Facsimile: (858) 755-2794
With Copies to: Leslie E. Devaney, City Attorney
Devaney Pate Morris & Cameron LLP
402 W. Broadway, Suite 1300
San Diego, CA 92101
Telephone: (619) 354-5030
Facsimile: (619) 354-5035
If to Developer, to: DM Asset Recovery LP
c/o Kitchell Development Company
Attn. Robert Schramm, President
1707 E. Highland Ave, Suite 100
Phoenix, AZ 85016
With Copies to: DM Asset Recovery LP
c/o Kitchell Development Company
Attn.: Michael Seiber
9330 Scranton Road, Suite 100
San Diego, CA 92121
(b) City shall endeavor to provide a courtesy copy of any notices sent to Property Owner to the following addressee, however, failure to do so shall not affect the validity of any otherwise proper, timely delivered notice to Property Owner:
(INSERT LENDER CONTACT)
Notice shall be deemed given three business days after the date of mailing. 55 July 11, 2022 Item 11
12 16. Severability.
If any provision of this AGREEMENT shall be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining portions hereof shall not in any way be affected or impaired thereby.
17. Additional Terms.
(a) Indemnity. To the fullest extent permitted by law, the Property Owner agrees to indemnify, hold harmless and defend the City and its elected officials, officers, governing members, employees, attorneys and agents (collectively, the “Indemnified Parties” ), from and against any and all losses, damages, claims, actions, liabilities, costs and expenses of any and every conceivable nature, kind or character (including, without limitation, reasonable attorneys' fees, litigation and court costs, amounts paid in settlement and amounts paid to discharge judgments) to which the Indemnified Parties, or any of them, may become subject to under any statutory law (including federal or state securities laws) or at common law or otherwise, arising out of or based upon or in any way relating to:
1. This AGREEMENT or the execution or amendment thereof in connection with the transactions contemplated thereby;
2. Property Owner's ownership or operation of the PROPERTY and the PROJECT or any act or omission of the Property Owner or any of its agents, contractors, servants, employees or licensees in connection with the PROPERTY and the PROJECT, the operation of the PROJECT, or the condition, environmental or otherwise, occupancy, use, possession, conduct or management of work done in or about, or from the planning, design, acquisition, installation, operation or rehabilitation of, the PROJECT or any part thereof;
3. any lien or charge upon payments by the Property Owner to the County, or any taxes (including, without limitation, all ad valorem taxes and sales taxes), assessments, impositions and other charges imposed on the County in respect of any portion of the PROJECT;
4. any violation of any environmental law, rule, or regulation with respect to, or the release of any toxic substance from, the PROPERTY or the PROJECT or any part thereof;
5. any untrue statement or misleading statement or alleged untrue statement or alleged misleading statement of a material fact by the Property Owner contained in the Development Agreement or any of the documents or instruments relating to said Development Agreement that the City relied upon in entering into this Agreement or the Development Agreement; except to the extent such damages are caused by the gross negligence or willful misconduct of such Indemnified Party. In the event that any action or proceeding is brought against any Indemnified Party with respect to which indemnity may be sought hereunder, the Property Owner, upon written notice from the Indemnified Party, shall assume the investigation and defense thereof, including the employment and payment for of 56 July 11, 2022 Item 11
13 counsel selected by the Indemnified Party, and shall assume the payment of all expenses related thereto, with full power to litigate, compromise or settle the same; provided that the Indemnified Party shall have the right to review and approve or disapprove any such compromise or settlement.
(b) Time. Time is of the essence in this AGREEMENT.
(c) Construction. Except where the context otherwise requires, words imparting the singular number shall include the plural number and vice versa, words imparting persons shall include firms, associations, partnerships and corporations, and words of either gender shall include the other gender.
(d) Waiver of Jury Trial. Unless prohibited by Federal, State or local laws, each party to this AGREEMENT hereby expressly waives any right to trial by jury of any claim, demand, action or cause of action arising under any Loan Document or in any way connected with or related or incidental to the dealings of the PARTIES hereto or any of them with respect to this AGREEMENT, or the transactions related thereto, in each case whether now existing or hereafter arising, and whether sounding in contract or tort or otherwise; and each party hereby agrees and consents that any such claim, demand, action or cause of action shall be decided by court trial without a jury, and that any party to this AGREEMENT may file an original counterpart or a copy of this section with any court as written evidence of the consent of the PARTIES hereto to the waiver of their right to trial by jury. (e) Non liability. By accepting or approving anything required to be performed or given to City under this AGREEMENT, City shall not be deemed to have warranted or represented the sufficiency or legal effect of the same, and no such acceptance or approval shall constitute a warranty or representation by City to anyone.
(f) Obligations Unconditional and Independent. Notwithstanding the existence at any time of any obligation or liability of City to Property Owner, or any claim by Property Owner against City, in connection with this AGREEMENT or otherwise, Property Owner hereby waives any right it might otherwise have (a) to offset any such obligation, liability or claim against Property Owner’s obligations under this AGREEMENT or (b) to claim that the existence of any such obligation, liability or claim excuses the nonperformance by Property Owner of any of its obligations under this AGREEMENT.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year first above written.
PROPERTY OWNER:
By:
By:
57 July 11, 2022 Item 11
14 CITY:
By:
By:
58 July 11, 2022 Item 11
EXHIBIT A
Legal Description of the Development Site
LOTS 4, 5, AND 6 IN BLOCK 62 OF DEL MAR, IN THE CITY OF DEL MAR, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 368, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, OCTOBER 7, 1885, TOGETHER WITH THAT PORTION OF THE SOUTHERLY 20.00 FEET OF TENTH STREET AS SHOWN ON SAID MAP, WHICH LIES NORTHERLY OF AND
IMMEDIATELY ADJOINS SAID LOTS, AS VACATED AND CLOSED TO PUBLIC USE BY ORDER OF THE BOARD OF SUPERVISORS OF SAID SAN DIEGO COUNTY, RECORDED APRIL 16, 1926 IN BOOK 1209, PAGE 125
OF DEEDS, TOGETHER WITH THAT PORTION OF THE NORTHERLY HALF OF THE ALLEY AS SHOWN ON
SAID MAP, WHICH LIES SOUTHERLY OF AND IMMEDIATELY ADJOINS SAID LOTS, AS VACATED AND CLOSED TO PUBLIC USE BY ORDER OF SAID BOARD OF SUPERVISORS, RECORDED MAY 17, 1929 IN BOOK 1613, PAGE 470 OF DEEDS.
APN: 300-221-33-00 and 300-221-32-00
59 July 11, 2022 Item 11
EXHIBIT B
Formula to determine the Maximum Restricted Sales Price of a New Affordable Unit at the time of original sale.
The following formula and methodology shall be used to calculate the maximum Restricted Sales Price of Restricted Unit upon the original sale by the Property Owner, consistent with Health and Safety Code Section 50052.5:
A. Determine the annual income for a Qualified Household size based on whether the unit is designated for occupancy by a Lower Income or Very-Low Income Household: as defined in Health and Safety Code Section 50079.5 and Section 50105 (as applicable). The unit designation will be determined by the City consistent with the project planning approvals. i. Determine the monthly Area Median Income for San Diego County for a Household size that is one person for a studio unit and two persons for a one-bedroom unit, three persons for a two-bedroom unit and four persons for a three-bedroom unit; then
ii. Multiply the monthly Median Income for San Diego County derived by the above method:
70% for an affordable unit designated for a Lower Income Household occupancy; or
50% for an affordable unit designated for a Very-Low Income Household occupancy.
B. Determine the monthly household allowance available for a mortgage payment:
i. Multiply annual income from step A by 0.30 to obtain an annual housing allowance of 30% of income;
ii. Divide the housing allowance by 12 to obtain a monthly housing allowance;
iii. Deduct 20% of the monthly housing allowance for the monthly costs of property taxes, insurance, and all utilities (consistent with the US Department of Housing and Urban Development's Utility Allowance principles), and deduct 100% of the monthly homeowner's association (HOA) fees to obtain a net allowance available for mortgage payments. (Note: For the purposes of the amount of HOA fees included in this formula, and for all future transactions, HOA fees shall be set as of the date of initial occupancy at their actual amount. If future HOA fees are less than this set amount, then the lesser amount will be used in the formula and thereafter. If HOA fees include property taxes, hazard insurance costs or individual unit utility costs, these costs shall be deducted from the set HOA fee amount used in the formula.) 60 July 11, 2022 Item 11
Exhibit B
Max. Sales Price Formula
C. Determine the maximum mortgage that can be financed:
i. Determine the prevailing interest rate for a 30-year fully amortized fixedrate home mortgage that is equal to the previous year's average mortgage interest rates from Freddie Mac's "Weekly Primary Mortgage Market Survey." This rate shall be adjusted annually, effective May 1st to coincide with the changes in median income by HUD and HCD;
ii. Determine the maximum home mortgage that can be financed at the prevailing interest rate based on a mortgage payment as determined in step B.
D. Determine a maximum Restricted Unit sales price assuming a mortgage of 90% of sales price by dividing the maximum mortgage amount determined in step C by 0.9.
The Maximum Restricted Sales Price shall be exclusive of closing costs, which shall be paid by the Seller.
61 July 11, 2022 Item 11
Affordable Unit
Affordable Unit
EXHIBIT C
Identification of Affordable Units
62 July 11, 2022 Item 11
EXHIBIT D
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
City of Del Mar
City Clerk’s Office
1050 Camino Del Mar
Del Mar, CA 92014
Recording Fees Exempt Pursuant to
Government Code §27383
ABOVE SPACE FOR RECORDER’S USE
AFFORDABLE HOUSING OCCUPANCY, REFINANCING, AND
RESALE DEED RESTRICTION AGREEMENT WITH OPTION TO
PURCHASE
Assessor’s Parcel Number (APN) of Home:
Address of Home:_____________________
Number of Bedrooms: _________________
Income Category of Purchaser: Low Income
Sales Price at Original Purchase (Owner's Base Price): $______ Owner's Original Closing Costs: $______
Median Income (applicable to household size) at Time of Purchase: $______ THIS AFFORDABLE HOUSING DEED RESTRICTION is made and executed this day of 20 by (the “Owner”), whose address is and
more particularly described in Exhibit A (the "Home"), for the benefit of and enforceable by the City of Del Mar (the “City”).
RECITALS
WHEREAS, the Owner owns Home located within the development project located at 941 Camino Del Mar in Del Mar, California.
WHEREAS, Owner’s residential unit was constructed on the Property to increase affordable housing opportunities in the City; and
63 July 11, 2022 Item 11
2 WHEREAS, pursuant to the Development Agreement and in accordance with the requirements of the Regulatory Agreement and Declaration of Restrictive Covenants associated with approval of development of the Property, eligible purchasers such as the Owner are given the opportunity to purchase residential property at less than its fair market value if the purchaser agrees to certain use and transfer restrictions, including an agreement to occupy the property as a principal residence and convey the property for an amount not greater than a maximum resale price, all more fully provided herein; and
WHEREAS, the purpose of this Agreement is to control the resale of the Home. This Agreement provides the City an option to purchase the Home at a restricted price, given in consideration of the economic benefits to the Owner resulting from purchase of the Home at an affordable level. This Agreement restricts the resale of the Home and specifies, among other requirements, that the Home may only be transferred to Low Income Households (as defined below).
This Agreement also requires that the Owner pay the City Excess Sales Proceeds (as defined below) in the event the Owner sells the Home in violation of this Agreement.
WHEREAS, the Owner is receiving a first mortgage loan (the "First Lender Loan") from _________________________ (the "First Lender"). The First Lender Loan is secured by a deed of trust executed by the Owner in favor of First Lender and recorded in the official records of San Diego County (the "Official Records") concurrently with this Agreement, and assigned Instrument No. _____________ (the "First Lender Deed of Trust"). [If Owner is receiving more than one purchase money loan from the same lender revise as follows: The Owner is receiving [insert number] mortgage loans from ________________ and _______________ (collectively, the "First Lender") for purchase of the Home (collectively, the "First Lender Loan"). The First Lender Loan is secured by a deed trust dated _______________, 20__, executed by the Owner and recorded in the County of San Diego on _______________, 20__, and assigned Instrument No. _____________ and a deed of trust dated _______________, 20__, executed by the Owner and recorded in the County of San Diego on _________________, 20__, and assigned Instrument No. _____________ [revise if more than two deeds of trust] (collectively, the "First Lender Deed of Trust").
WHEREAS, this Agreement shall be secured by a deed of trust on the Home (the "City Deed of Trust"). [Choose one:] [This Agreement will be recorded senior and will not be subordinated to the First Lender Deed of Trust, but the City Deed of Trust shall be subordinate to the lien of the First Lender Deed of Trust.] [Because the First Lender Loan is financed with a HUD or VA loan, the Agreement and the City Deed of Trust will be subordinate to such HUD or VA financing.] WHEREAS, the Owner, on behalf of itself, its heirs, executors, administrators, representatives, successors, and assigns, desires to comply with the requirements of the Development Agreement by restricting the use and transfer of the Property as provided herein.
NOW, THEREFORE, in consideration of the recitals set forth above and for value received, the Owner does hereby declare and impose the following covenants on the Property.
COVENANTS
1. Covenants to Run with Property. The Property is hereby burdened with the covenants delineated herein, which covenants must be a burden upon, and run with, the Property for the benefit of the City who may enforce the covenants and compel compliance therewith. Lack of 64 July 11, 2022 Item 11
3 compelled compliance at any time, for any duration, or for any reason does not remove the right of City from enforcing the covenants and compelling compliance.
2. General Definitions.
“Guidelines” means policies, procedures, regulations, and ordinances adopted by the City, as same may be amended from time to time, to govern the administration of deed restricted affordable housing.
“Owner” means that person or persons listed in the opening paragraph of this Agreement, who have been certified as a Qualified Household.
“Qualified Household” means a household that has been certified by the City as qualified Low-Income Household that is eligible to own or occupy the Property. A Qualified Household must maintain continuous compliance with the Guidelines and the terms and provisions of this Deed Restriction during its entire term of occupancy of the Property. The combined gross income for all household members of a "Qualified Household", as determined by the City, does not exceed the qualifying limit for Low Income households as established and amended from time to time pursuant to Section 8 of the United States Housing Act of 1937 ("Low Income Household").
3. Restrictions on Occupancy.
3.1 Residential Use Only. The Owner must use, and must cause all occupants to use, the Property only for residential purposes, as affordable housing, as the Owner's sole place of residence and any incidental activities related to residential use that are permitted by the applicable zoning.
3.2 Compliance with Law. The Owner must use the Property in a manner to not cause actual harm to others or create any nuisances, public or private. The Owner must use and maintain the Property in compliance with all applicable laws and regulations, including homeowner association covenants and requirements.
3.3 Occupancy. Subject to the restrictions contained in Section 8 below, the Owner must occupy the Property as the Owner’s primary residence. The Owner will be considered as occupying the Property as his/her/their primary residence if the Owner is living in the Property for at least ten (10) months out of each calendar year. On or before February 1 of each calendar year, the Owner shall provide an annual written certification to the City, in the form to be provided by the City (Exhibit E). The City may, in its sole discretion, grant a temporary waiver of this occupancy requirement for good cause such as to facilitate sale of the Property to a Qualified Household, illness, temporary job relocation, military deployment orsabbatical. The Owner must provide written request for a temporary waiver of the owner occupancy requirement to the City at least thirty (30) days prior to such temporary vacancy. The Owner’s failure to comply with the provisions of this paragraph may, following a three (3) month notice to cure, be deemed a breach of this Deed Restriction, allowing the City to purchase the Property as set forth in section 7. Occupancy of the Property as the Owner's primary residence will not be established if the Owner offers or lets the Property as a Short-Term Rental at any time during the Term in violation of Section 8, below.
3.4 Maintenance and Inspection of Property. The Owner must maintain the Property and 65 July 11, 2022 Item 11
4 any improvements thereon in good condition and repair throughout the Owner’s period of ownership.
If the City receives a report of poor maintenance or unsafe condition, the Owner must allow the City, or its designee, access to the Property upon 48 hours’ notice. The City, or its designee, will inspect the property and notify Owner if repairs or corrections are required. The Owner must make any required repairs or corrections in a reasonable manner acceptable to City within thirty (30) days of being notified. In addition, upon the City’s receipt of a Notice of Intent to Transfer, as detailed in section 6, the City must be given the right to enter and inspect the Property. The Owner is obligated to make repairs to the Property deemed necessary by the City prior to appraisal and sale. If Owner is unable to make the required repairs, the City may enter into an agreement with the Owner to make necessary repairs.
4. Taxes and Assessments.
4.1 Owner Responsibility. The Owner must be responsible for the payment of all taxes, governmental assessments, and homeowners’ dues/assessments relating to the Property.
4.2 Right to Contest. The Owner has, at the Owner’s own expense, the right to contest the amount or validity of any taxes or assessments relating to the Property.
5. Term of Covenants and Restrictions. All the provisions of this Agreement, including the benefits and burdens, run with the Home and this Agreement shall bind, and the benefit hereof shall inure to, the Owner, his or her heirs, legal representatives, executors, successors in interest and assigns, and to the City and its successors. The covenants and restrictions contained herein must continue in full force and effect for a period of fifty-five (55) years after the date of recordation of this Deed Restriction. With each sale or transfer, the Owner must ensure that the purchaser or transferee executes an occupancy, refinancing, and resale restriction agreement with option to purchase (“Deed Restriction”) in accordance with Section 6.2 of this Agreement and record the same with the San Diego County Recorder.
The Owner covenants that he or she has not, and will not, execute any other agreement with provisions contradictory to or in opposition to the provisions hereof, and that, in any event, this Agreement is controlling as to the rights and obligations between and among the Owner, the City and their respective successors.
6. Sale of the Property.
6.1 Requirements. In the event the Owner intends to Transfer or vacate the Home, the Owner shall promptly give the City written notice of such intent (the "Notice of Intent to Transfer"), in the form shown in Exhibit C attached to this Agreement. The Owner shall give the City the Owner's Notice of Intent to Transfer prior to notifying real estate brokers or lenders of Owner's intent to Transfer the Home and prior to listing of the Home on the Multiple Listing Service.
i. The Owner's Notice of Intent to Transfer shall be sent to the City by certified mail, return receipt requested at the address provided in this Agreement. The Owner's Notice of Intent to Transfer shall include the information necessary for the City to determine the Maximum 66 July 11, 2022 Item 11
5 Restricted Resale Price of the Home, including the following information:
(1) the address of the Home;
(2) the date of purchase of the Home by the Owner;
(3) the purchase price of the Home paid by the Owner at the time of his/her purchase;
(4) a copy of the HUD-1 Settlement Statement or equivalent document from the close of escrow on the Owner's purchase of the Home;
(5) if Owner has made Eligible Capital Improvements to the Home that he/she wishes to include in the calculation of Indexed Price, a description of the improvements, the date the improvements were made, a copy of the letter granting prior City approval of the improvements, evidence of cost of the improvements, and an appraisal of the value added to the Home by the Eligible Capital Improvements;
(6) the date on which Owner intends to vacate Home;
(7) the date the Home will be placed on the market; and (8) the name and phone number of the person to contact to schedule inspection of the Home by the City.
The Owner may not want to enter into a contract with a real estate broker to sell the Home until the Owner has received the City Response Notice, as the services of a broker will not be required if the City exercises the City Option to purchase the Home and in such event no brokerage commission will be paid to a third party.
ii. Within thirty (30) days of delivery of the Owner's Notice of Intent to Transfer, the Owner shall obtain and deliver to the City a current written report of inspection of the Home by a licensed structural pest control operator.
iii. No later than thirty (30) days after delivering a Notice of Intent to Transfer, the City or designee will inspect the property and notify the Owner of required repairs. The Owner must make required repairs within thirty (30) days. If Owner is unable to make the required repairs, the City may cause the repairs to be made and charge one and one-half (1.5) times the repair costs to the Owner payable out of purchase proceeds at closing. Once repairs are made, Owner must, at their own expense, commission an appraisal of the Property by a licensed appraiser. The appraisal must be by analysis and comparison of comparable properties, disregarding this Deed Restriction. The Owner must provide a copy of such appraisal to the City. iv. If the Home is vacant, the Owner shall maintain utility connections until the close of escrow on the Transfer;
v. In the event the City purchases the Home, the Owner shall permit a final walkthrough of the Home by the City, or the City's designee, in the final three (3) days prior to close of escrow on the Transfer.
The City shall respond in writing (the "City Response Notice") to the Owner's Notice of Intent to Transfer within sixty (60) days of: City receipt of a complete Owner's Notice of Intent to Transfer that includes all information required under this Section, including City receipt of the pest control report and home inspection report (if any). The City Response Notice shall inform the 67 July 11, 2022 Item 11
6 Owner of the City's election to proceed under one of the following two alternatives:
i. City Exercise of City Purchase Option. The City Response Notice may notify the Owner that the City elects to exercise the City Option, or assign to another public agency or nonprofit organization or Qualified Household the City's right to purchase the Home, and shall include the City's calculation of the Maximum Restricted Resale Price to be paid by the City (or its assignee) and the Transaction Fee to be paid by the Owner.
ii. Owner Sale at Restricted Sale Price to Qualified Household. Alternatively, the City Response Notice may notify the Owner that the City will not at this time exercise the City Option to purchase the Home and that the Owner may proceed to sell the Home to a Qualified Household at a price not to exceed the Maximum Restricted Resale Price. In this event, the City Response Notice shall include the following information: (1) the maximum qualifying income for a Qualified Household; (2) the certifications required of a Qualified Household; (3) the Maximum Restricted Resale Price the Owner may receive for the Home. iii. To proceed to the closing of the sale of the Property, the City must certify in writing that the prospective buyer is a Qualified Household. The City or its designee will maintain a list of Qualified Households and shall provide Owner with the then current list when sending the City Response Notice.
No later than seven (7) days following the date of the City Response Notice, the Owner shall acknowledge in writing to the City, that the Owner has received the City Response Notice and still intends to Transfer the Home.
6.2 Selling the Property.
The Owner agrees that the City shall have the option to purchase the Home (the "City Option") for the Maximum Restricted Resale Price, calculated pursuant to Section 6.3 of this Agreement. The City may, instead of purchasing the Home itself, assign its right to purchase the Home pursuant to the City Option to another public agency, a nonprofit corporation, or to a Qualified Household. If the City assigns its purchase option, the assignee shall sign the City Response Notice and shall thereby be bound to purchase the Home pursuant to the terms of the City Option as set forth in this Agreement. The Owner may be required to pay the City a transaction fee equal to the City's reasonable costs associated with the exercise of the Option if the City (or its assignee) exercises the City Option and purchases the Home; provided, however that such transaction fee shall not exceed six percent (6%) of the sales price of the Home. The City Option may be exercised by the City or its assignee in the City Response Notice, as described in Section 6.1 above, to be sent by the City to the Owner within thirty (30) days of the City's receipt of a complete Owner's Notice of Intent to Transfer. If the City Response Notice notifies the Owner that the City or its assignee will exercise the City Option to purchase, the City or its assignee shall purchase the Home within ninety (90) days of the date of the City Response Notice and title shall be delivered by the Owner to the City by grant deed, free and clear of any mortgage or other liens, unless approved in writing by the City. In the event of exercise of the City Option and purchase of the Home by the City or its assignee, the Owner shall permit a final walk-through of the Home by the City or its assignee in the final three (3) days prior to close of escrow on the Transfer.
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7 In the event the City Response Notice notifies the Owner to proceed to sell the Home to a Qualified Household at a price not exceeding the Maximum Restricted Resale Price, the Owner may proceed to sell the Home in compliance with the following requirements. The Owner may sell the Property by selling the Property directly to a Qualified Household on the City’s approved list or that of its designee. If the City does not maintain such a list, the Owner may sell to a Qualified Household of Owner’s choosing, so long as the person is certified by the City as a Qualified Household. The Proposed Buyer shall agree to sign and record an occupancy, refinancing, and resale restriction agreement with option to purchase restricting future resale of the Home and shall agree to cooperate fully with the City in promptly providing all information requested by the City to assist the City in monitoring the Proposed Buyer's compliance with the occupancy, refinancing, and resale restriction agreement with option to purchase.
6.3 Maximum Restricted Resale Price. In no event shall the Property be sold for an amount exceeding the “Maximum Restricted Resale Price,” calculated as follows:
A. The original purchase price of the Property, which reflects the affordable housing cost for the Home at the time of purchase by Owner plus an increase in the San Diego Area Median Income from the date of the of the original purchase price per year from the date of purchase to the date that the Owner’s Notice of Intent to Transfer is delivered to the City (prorated for each whole month of any part of a year and not compounded).
B. PLUS, any other costs allowed by the City pursuant to Guidelines and any applicable City policies and procedures.
6.4 No Guarantee of Price. Nothing herein shall be intended to be construed to constitute a representation or guarantee by the City that the Owner will obtain the Maximum Resale Price upon sale of the Property.
6.5 No Assumption of Owner’s Costs. The Owner must not permit any prospective buyer to assume any or all of Owner’s customary closing costs (including title policy and half of any escrow expenses) or accept any other consideration which would cause an increase in the purchase price above the Maximum Resale Price. The Owner must pay all costs of advertising and marketing the Property for sale, including real estate commissions. The Owner must not accept any other consideration which would cause an increase in the net proceeds paid to the Owner from the sale.
7. Prohibited Sale/Transfer.
7.1 Effect. Any Transfer of the Home will be subject to the provisions of this Agreement including, without limitation, the City Option. Any prohibited sale/transfer of the Property in violation of this Deed Restriction or an attempt to make a prohibited sale/transfer must be void, must be a material breach subject to the remedies reflected in section 9, below. Transfer means any sale, assignment or transfer, voluntary or involuntary, of any interest in the Home, including, but not limited to, a fee simple interest, a joint tenancy interest, a life estate, a leasehold interest, an interest evidenced by a land contract by which possession of the Home is transferred and Owner retains title, or a deed of trust. Any Transfer without satisfaction of the provisions of this Agreement is prohibited and shall constitute a Default under this Agreement and the City may then exercise any of the 69 July 11, 2022 Item 11
8 remedies set forth herein. If the Owner makes a Transfer in violation of this Agreement, the Owner shall pay the Excess Sales Proceeds to the City as set forth in this section. For purposes of this Agreement, "Excess Sales Proceeds" shall mean one hundred ten percent (110%) of the amount by which the gross sales proceeds received by the Owner from the new buyer exceed the Maximum Restricted Resale Price for the Home (in the amount that was stated in the City Response Notice).
This amount shall be a debt of the Owner to the City, evidenced by this Agreement and secured by the City Deed of Trust. The Owner acknowledges that the City shall have no obligation to cause reconveyance of this Agreement or of the City Deed of Trust until the Excess Sales Proceeds are paid to the City. The City shall utilize the Excess Sales Proceeds for City affordable housing programs and to pay for administrative fees resulting from the Transfer in violation of this Agreement. The Owner and the City acknowledge that the formula for calculation of the amount of Excess Sales Proceeds due from the Owner to the City is intended to cause the Owner to receive the same net sales proceeds (following payment by Owner of a standard broker's commission) from sale of the Home at an unrestricted price to a third party as the Owner would receive from sale of the Home to the City or to a Qualified Household at the Maximum Restricted Resale Price.
7.2 Sales/Transfers Not Prohibited. The following are not considered prohibited sales/transfers and therefore are not subject to the City’s option to purchase the Property: (i) Transfer of title by gift, devise, or inheritance to the Owner’s spouse or domestic partner, or natural or adopted children; (ii) Transfer of title due to the Owner’s death to a surviving joint tenant, tenant by entireties, or a surviving spouse of community property; (iii) transfer to a spouse as part of divorce or dissolution proceedings; (iv) transfer of title by the Owner into an inter-vivos trust in which the Owner is the beneficiary; or (v) transfer of title or an interest in the Property to the spouse in conjunction with marriage. However, for these not to be deemed prohibited sales/transfers all of the following three conditions must be met: (i) at the time of the sale/transfer, the Property was the transferee’s primary place of residence, as set forth in section 3.3, and will continue to be the transferee’s primary place of residence, or transferee meets the definition of a Qualified Household and will make the Property his/her primary place of residence; (ii) this Deed Restriction must continue to run with title of the Property following said sale/transfer; and (iii) transferee must execute and record this Deed Restriction. A transferee who satisfies the above three conditions shall then be considered the Owner. All other Transfers shall require written notice to the City pursuant to Section 6 and shall be to Qualified Households. Consideration received by the Owner for such Transfer shall not exceed the Maximum Restricted Resale Price defined in Section 6.3, above. Failure of an Inheriting Owner to follow the procedures and file the notices described in this Section shall constitute a Default under this Agreement and the City may then exercise any of the remedies set forth herein, including, without limitation, exercise of the City Purchase Option upon Default.
8. Rental of the Property.
8.1. When Permitted. The Owner is prohibited from renting the Property at any time during the Term unless the City grants a written temporary waiver of the owner occupancy requirements set forth in section 3.3 and the City grants written approval in accordance with the following procedures:
i. The Owner must deliver written notice to the City of its intent to rent the Property no less than fifteen (15) business days prior to the execution of any lease or any other occupancy agreement for the Property.
70 July 11, 2022 Item 11
9 ii. Prior to occupancy, any tenant must be certified in writing as a Qualified Household by the City in accordance with the Guidelines. iii. A signed copy of the lease must be provided to the City prior to occupancy by any tenant. Such lease must include all provisions specified in the Guidelines, if any. iv. The maximum rental rate must be determined when the notice of intent to rent is submitted and approved by the City. The monthly rent must not exceed Owner’s monthly obligations, consisting of principal, interest, taxes, insurance, and homeowners’ dues/assessments and must result in the Property being rented at an affordable housing cost as defined in Health and Safety Code Section 50053.
v. Failure of the City to approve or otherwise respond to a request to authorize rental of a Restricted Unit shall not constitute an approval of said request.
Notwithstanding anything to the contrary or any changes to the Municipal Code, in no event shall the Owner be permitted to offer or let the Property, or any portion thereof, as a short-term rental, even if the Property is within a Residential-Commercial zone, visitor commercial, or commercial zones. The purpose of this prohibition is strictly to ensure the continued use of the Property as affordable housing.
8.2 Owner’s Liability. Nothing herein shall be construed to require the City to: (i) protect or indemnify the Owner against any losses attributable to the rental, including, but not limited to, non-payment of rent or damage to the Property; (ii) require the City to obtain a qualified tenant for the Owner in the event none is found by the Owner; or (3) require the City to enforce any of the terms of or perform any of the obligations of any lease entered into by the Owner.
9. Breach.
9.1 Defaults. The following events shall constitute a Default by the Owner under this Agreement:
(1) The City determines that the Owner has made a misrepresentation to obtain the benefits of purchase of the Home or in connection with its obligations under this Agreement; (2) The Owner fails to occupy the Home as the Owner's primary residence; (3) The Owner leases the Home to any third party without prior written City approval;
(4) The Owner makes a Transfer in violation of this Agreement; (5) The Owner otherwise fails to comply with the requirements of this Agreement, or the City Deed of Trust;
(6) A notice of default is issued under the First Lender Loan; or (7) A lien is recorded against the Home other than the lien of a bona fide first mortgage loan or a junior loan approved by the City.
Notice and Cure. Upon violation of any of the provisions of this Deed Restriction, City must give written notice to the Owner by certified mail, return receipt requested, specifying the nature of the violation. If the violation is not corrected to the satisfaction of the City within a reasonable period, 71 July 11, 2022 Item 11
10 not to exceed thirty (30) days after the date the notice is mailed, or within further time as is determined by the City to be necessary to correct the violation, the City may declare a default. The City shall notify the First Lender at the address provided by the First Lender, if the City has declared a default under this Agreement or under the City Note or the City Deed of Trust
9.2 Remedies Upon Default. Upon the declaration of a default, the City may invoke any remedies available to them under this Deed Restriction including, but not limited to, seeking a court order for specific performance of the obligations of this Deed Restriction, for an injunction prohibiting a proposed sale/transfer in violation of this Deed Restriction, for a declaration that a sale/transfer in violation of this Deed Restriction is void, or for any other such relief at law or equity as may be appropriate.
9.3 Attorney fees and costs. In the event of a default by the Owner, the Owner and/or the Owner’s transferee must hold the City, its officials, employees, and agents harmless and reimburse the expenses, attorney fees, and costs for any action the City takes to enforce the provisions of this Deed Restriction.
9.4 City’s Option to Purchase. In addition to these remedies, the City has the option to purchase the Property for the Maximum Resale Price, effective upon the declaration of default. City must within thirty (30) days after a default is declared to notify the Owner of its decision to exercise its option to purchase the Property.
10. Foreclosure.
10.1 Exclusivity. This paragraph applies in the event of foreclosure of the Property. In the event of foreclosure, paragraphs 6, 8 and 9 do not apply.
10.2 Notice. The Owner must deliver to the City a foreclosure notice or any similar document he/she/they receive from a mortgagee within five (5) days of receipt.
10.3 City’s Option to Purchase. The Owner grants to the City the right and option to purchase the Property upon receipt of notice of an impending foreclosure or deed in lieu of foreclosure. In the event City intends to exercise its right, City must purchase the Property within sixty (60) days of receipt of notice, at a price equal the mortgage satisfaction amount (as herein defined). “Mortgage satisfaction amount” means the sum of the outstanding principal balance of the note secured by the mortgage, plus accrued interest and all reasonable costs and expenses which the mortgagee is entitled to pursuant to the mortgage.
10.4 Effect Upon Deed Restrictions. If City does not exercise its option to purchase the Property, the rights and restrictions contained in this document will not apply to such mortgagee upon acquisition the Property, any purchaser of the Property at a foreclosure sale conducted by such mortgagee, or any purchaser of the Property from such mortgagee and the Property must thereafter be free from all such rights and restrictions.
11. Financing. The owner may not incur any debt or promissory note secured by a deed of trust or other security instrument that encumbers the Property in excess of the original 72 July 11, 2022 Item 11
11 purchase price.
At no time shall the total principal amount of all debt secured by the Home exceed the "Permitted Encumbrance Amount", which is defined as the greater of: (i) ninety percent (90%) of the Maximum Restricted Resale Price as of the date of the Owner's request to the City of approval of the Owner's refinance (the "Refinance Request Notice"); or (ii) the outstanding balance of the existing First Lender Loan as of the date of the Refinance Request Notice. Mortgage loans which include negative amortization and adjustable-rate mortgages are prohibited. If escrow does not close on the refinance within one hundred twenty (120) days of the date of the Refinance Request Notice, the City shall have the right to recalculate the Permitted Encumbrance Amount. Owner shall not be in Default hereunder at the time of initial purchase of the Home by the Owner, if, at that time, the initial debt secured by the Home exceeds the Permitted Encumbrance Amount and Owner does not further encumber the Home until the Permitted Encumbrance Amount complies with this Section.
The City shall permit and approve a prepayment and refinance of the existing First Lender Loan and shall provide for the subordination of this Agreement, the City Deed of Trust to the refinanced First Lender Loan only if such refinance does not cause the total debt secured by the Home, including junior mortgage loans and equity lines of credit, to exceed the Permitted Encumbrance Amount. The City will not approve any mortgage loan which includes negative amortization, nor will the City approve any adjustable-rate mortgages.
Mortgage loans or equity lines of credit junior in lien priority to this Agreement, the City Deed of Trust are not permitted, except when expressly approved by the City in writing. The City shall only approve junior mortgage loans or equity lines of credit which will not cause the total of all debt secured by the Home (calculated assuming a maximum permitted draw on any equity line of credit) to exceed the Permitted Encumbrance Amount. The City will not approve any mortgage loan or equity line of credit which includes negative amortization, nor will the City approve any adjustablerate mortgages.
12. Liability, Insurance, Damage, Destruction, and Improvements.
12.1 Owner’s Liability. The Owner has sole responsibility and liability to all persons and authorities related to the Owner’s possession, occupancy, and use of the Property and must hold the City harmless from all claims of liability for injury or damage to person or property from any cause, on or about the Property. The Owner waives all claims against the City for such injury or damage.
12.2 Insurance. The Owner must, at the Owner’s expense, procure and maintain a standard all risk property insurance policy equal to the current replacement value of the Home adjusted annually to reflect changes to local building costs calculated on a per square foot basis (or by appraisal, if requested by the City), naming the City, the City and their employees, agents, officers, board members and/or council members as additional insureds. The policy shall be adjusted annually to reflect changes to local building costs calculated on a per square foot basis (or by appraisal, if requested by the City). The City has the right, but not the obligation, to inform Owner of the then-current replacement value of the Home.
12.3 Damage to the Property. In the event of fire or other damage to the Property, the Owner must take all necessary steps to ensure the repair of such damage and the restoration of the 73 July 11, 2022 Item 11
12 Property to its condition immediately prior to the damage. All such repairs and restoration must be completed as promptly as possible. Provided, however: If the Owner, using reasonable judgment and relying on professional estimates, determines that either: (i) full repair and restoration of the Property and improvements is physically impossible; or (ii) insurance proceeds will pay for less than eighty percent (80%) of the cost of repair and restoration, then the Owner may elect not to repair or restore the Property. In this case, the mortgagee is to receive all condemnation or insurance proceeds, however, all proceeds in excess of the mortgage satisfaction amount must be paid to the City.
12.4 Eminent Domain. If the Property is taken by reason of eminent domain or other action of public authority prior to expiration of this deed restriction and:
i. The Property is either taken in entirety or to such extent that the Property is lost or damaged beyond repair, this Deed Restriction must terminate as of the date the Owner is required to give up possession of the Property.
ii. The taking of the Property results in damage to the Property only to such an extent that the Property can reasonably be restored to a residential use consistent with this Deed Restriction, the Owner must utilize such of the monetary compensation as is needed to repair or restoration of the Property.
iii. All proceedings brought by a party in connection with any damages as a result of any taking referred to in this section 12.4 must be conducted at the sole expense of such party. If any provision of law requires that such proceedings be brought by or in the name of the Owner, the Owner must join in the proceedings or permit the same to be brought in the Owner’s name. Each party agrees to do all acts and execute all documents that may be required to enable the other to maintain such proceedings. If the party required to join in the proceedings incurs any cost or expense in doing so, such party must be entitled to reasonable reimbursement and this entitlement must constitute a first charge against any monetary compensation for the taking.
12.5 Improvements. The Owner may make improvements to the Property and recapture some of the value of said improvements if the Owner and City enter into a written agreement regarding the cost of the improvements, the scope of work, the depreciation of the improvements, if any, and recapture of value of the improvements. General property maintenance and repairs are not considered to add value and the Owner is obligated to make such when necessary.
12.6 Indemnity. Owner agrees to defend, indemnify, and hold the City, and their agents, employees, officers and board members harmless from all losses, damages, liabilities, claims, actions, judgments, costs, and reasonable attorneys’ fees that the City, or such persons may incur as a direct or indirect consequence of: (1) Owner's default, performance, or failure to perform any obligations as and when required by this Agreement or the City Deed of Trust; or (2) the failure at any time of any of Owner's representations to the City to be true and correct.
13. General Provisions.
13.1 Notice. Any notice required or permitted under this Deed Restriction must be given in writing and delivered in person or mailed, by certified or registered mail, return receipt requested, 74 July 11, 2022 Item 11
13 at the address set forth below, or such other address designated by the written notice. All notices must be effective upon being deposited in the United States Mail or, in the case of personal delivery, upon actual receipt.
If to City: City of Del Mar
Attn:
1050 Camino Del Mar
Del Mar, CA 92014
If to Owner: At the address set forth in the opening paragraph.
13.2 Severability. Whenever possible, each provision of this Deed Restriction and any other related document must be interpreted in such manner as to be valid under applicable law.
However, if any provision must be invalid or prohibited under said applicable law, such provisions must be ineffective only to the extent of such invalidity or prohibition without invalidating the remaining provisions of such document.
13.3 Choice of Law and Venue. This Deed Restriction must be interpreted in accordance with and governed by the laws of the State of California. Venue for any legal action arising from this Deed Restriction must be in San Diego County, California.
13.4 Waiver. Waiver by the City of any term or condition of this Deed Restriction, or the failure of the City to act with respect to any breach of any such term or condition, must not be deemed to be a waiver of such term or condition regarding any subsequent breach of such term or condition, or of any other term or condition of the Deed Restriction. The City may grant waivers in the terms of this Deed Restriction, but such waivers must be in writing and signed by the City before becoming effective.
13.5 Successors. The provisions and covenants contained herein must inure to the benefit of, and be binding upon, successors and assigns of the parties.
13.6 Authority. Each of the parties warrants that it has complete and full authority, without limitation, to commit itself to all terms and conditions of this Deed Restriction, including every representation, certification and warranty contained herein.
13.7 Further Actions. The parties agree to execute such further documents and take such further actions as may be deemed reasonably necessary to carry out the provisions and intent of this Deed Restriction or any agreement or document relating hereto or entered in connection herewith.
13.8 Amendment. This Deed Restriction may not be amended unless in writing, signed by all parties, and recorded with the San Diego County Recorder.
13.9 Conflicts. To the extent any Covenants, Conditions and Restrictions, bylaws, or any other limitations or restrictions placed upon the Property by a builder, developer, or homeowner’s association conflicts with any provisions of this Deed Restriction or the Guidelines, the applicable 75 July 11, 2022 Item 11
14 provision of this Deed Restriction or the applicable Guideline shall prevail.
13.10 FHA Loans. If the Property is encumbered by a mortgage insured by the Federal Housing Authority, the provisions of 24 C.F.R. 203.41 prevail to the extent such provisions conflict with any provisions of this Deed Restriction. Notwithstanding any other provision in this Agreement to the contrary, this Agreement shall not diminish or affect the rights of the United States Department of Housing and Urban Development ("HUD") or the Veterans Administration ("VA") under the First Lender Deed of Trust.
Notwithstanding any other provisions in this Agreement to the contrary, all of the provisions of this Agreement shall terminate and have no further force in the event title is acquired by HUD or VA or another party upon foreclosure of a deed of trust insured by HUD or guaranteed by VA.
Notwithstanding other provisions of this Agreement, the City Option on Default shall not be exercised by the City when a deed of trust insured by HUD is secured by the Home, and: (i) the owner is undergoing consideration by HUD for assignment forbearance relief; or (ii) the owner is undergoing consideration for relief under HUD's Temporary Mortgage Assistance Payment (TMAP) program.
13.11 Subordination. Notwithstanding any other provision hereof, the provisions of this Agreement shall be subordinate to the lien of the First Lender Loan and shall not impair the rights of the First Lender, or the First Lender's successor or assign, to exercise its remedies under the First Lender Deed of Trust in the event of default under this First Lender Deed of Trust by the Owner.
Such remedies under the First Lender Deed of Trust include the right of foreclosure or acceptance of a deed or assignment in lieu of foreclosure. After such foreclosure or acceptance of a deed in lieu of foreclosure, this Agreement shall be forever terminated and shall have no further effect as to the Home or any transferee thereafter; provided, however, if the holder of such First Lender Deed of Trust acquired title to the Home pursuant to a deed or assignment in lieu of foreclosure and no notice of default was recorded against the Home by such holder in connection therewith, this Agreement and shall automatically terminate upon such acquisition of title, only if (i) the City has been given written notice of default under such First Lender Deed of Trust with a sixty (60)-day cure period (which requirement shall be satisfied by recordation of a notice of default under California Civil Code Section 2924), and (ii) the City shall not have cured the default within such sixty (60)-day period. Owner agrees to record any necessary documents to effect such termination, if applicable.
13.11 Nondiscrimination. The Owner covenants by and for itself and its successors and assigns that there shall be no discrimination against or segregation of a person or of a group of persons on account of race, color, religion, creed, age, disability, sex, sexual orientation, marital status, ancestry or national origin in the sale, transfer, use, occupancy, tenure or enjoyment of the Home, nor shall the Owner or any person claiming under or through the Owner establish or permit any such practice or practices of discrimination or segregation with reference to the use, occupancy, or transfer of the Home. The foregoing covenant shall run with the land. 76 July 11, 2022 Item 11
15 IN WITNESS WHEROF, the parties have executed this Deed Restriction at Del Mar, California on the day and year first written above.
OWNER: CITY OF DEL MAR:
Owner City of Del Mar
77 July 11, 2022 Item 11
EXHIBIT A
The “Home”
LEGAL DECRIPTION:
(To be filled-in once the home exists)
78 July 11, 2022 Item 11
EXHIBIT B
2131\01\3228451.1
City of Del Mar Affordable Housing
Owner Occupied Annual Certification
Please complete this form and return to:
City of Del Mar, Planning & Community Development
1050 Camino Del Mar
Del Mar, CA 92014
Owner
Name(s): _______________________________________________ Phone: ____________________ Address: ________________________________________________ Unit: ______________________ City: ______________________________ State: ___________ Zip Code: _______________________ E-Mail: _____________________________________
I hereby certify under the penalty of perjury:
Y____ N ____. That the affordable unit listed above is my primary residence.
Y____ N ____. I have occupied the affordable unit as my primary place of residence since ______.
Y____ N ____. I have not leased the affordable unit in violation of the Resale Restriction Agreement.
Y N I have not offered or let the affordable unit be used as a Short Term Rental (STR) Please provide source documentation of your residency
(Utility Bill, HOA or Mortgage Statement, Insurance, or other verifiable documentation)
CERTIFICATION
OWNER CERTIFICATION
I/We have read the information submitted above and certify that the information is accurate and complete to my/our knowledge. I/We acknowledge and understand that a material misstatement fraudulently made in this affidavit or in any other statement made by me/us in connection with the affordability restriction recorded against this property will constitute a federal violation punishable by fine and abatement of use of subject property, which will be in addition to any criminal penalty imposed by law.
79 July 11, 2022 Item 11
EXHIBIT B
2131\01\3228451.1
This Owner Occupied Annual Certification is signed on date written below, under the penalty of perjury.
Owner(s)
___________________________ ______________________________ __________ Name (Print) Signature Date
___________________________ ______________________________ __________ Name (Print) Signature Date
80 July 11, 2022 Item 11
EXHIBIT C
FORM OF OWNER’S NOTICE OF INTENT TO TRANSFER
TO: City of Del Mar
FROM: [State names of Owners]
Address of Home: ___________________________
Date:
Please be notified pursuant to Section 6 of the Affordable Housing Occupancy, Refinancing, and Resale Deed Restriction Agreement between Owner and City dated(the “Agreement”), that the Owner intends to transfer the Home listed above.
The following information is provided to the City pursuant to Section 6 of the Agreement:
1. Address of the Home: _____________________________________________
2. Date Owner purchased the Home:
3. Purchase Price paid by Owner for the Home:
(Include a copy of the HUD-1 Settlement Statement or equivalent document from the close of escrow on the Owners purchase of the home)
4. Date Owner intends to vacate the Home:
5. Date the Home will be placed on the market:
6. Name and telephone number for City to contact to schedule inspection:
7. Have Capital Improvements been made to the Residence? ___ yes / ___ no If yes, please attach copies of the City’s written approval of the Capital Improvements, and all required permits for the Capital Improvements.
I agree to cooperate with the City to schedule an inspection of the Residence by the City or its designee.
I/we certify that this Owner’s Notice of Intent to Transfer is true and correct and is signed on:
By: ___________
Owner [type name]
By: ___________
Owner [type name]
81 July 11, 2022 Item 11
EXHIBIT E
City of Del Mar Affordable Housing
Owner Occupied Annual Certification
Please complete this form and return to:
City of Del Mar, Planning & Community Development
1050 Camino Del Mar
Del Mar, CA 92014
Owner
Name(s): _______________________________________________ Phone: ____________________ Address: ________________________________________________ Unit: ______________________ City: ______________________________ State: ___________ Zip Code: _______________________ E-Mail: _____________________________________
I hereby certify under the penalty of perjury:
Y____ N ____. That the affordable unit listed above is my primary residence.
Y____ N ____. I have occupied the affordable unit as my primary place of residence since ______.
Y____ N ____. I have not leased the affordable unit in violation of the Resale Restriction Agreement.
Y N I have not offered or let the affordable unit be used as a Short Term Rental (STR) Please provide source documentation of your residency
(Utility Bill, HOA or Mortgage Statement, Insurance, or other verifiable documentation)
CERTIFICATION
OWNER CERTIFICATION
I/We have read the information submitted above and certify that the information is accurate and complete to my/our knowledge. I/We acknowledge and understand that a material misstatement fraudulently made in this affidavit or in any other statement made by me/us in connection with the affordability restriction recorded against this property will constitute a federal violation punishable by fine and abatement of use of subject property, which will be in addition to any criminal penalty imposed by law.
82 July 11, 2022 Item 11
This Owner Occupied Annual Certification is signed on date written below, under the penalty of perjury.
Owner(s)
___________________________ ______________________________ __________ Name (Print) Signature Date
___________________________ ______________________________ __________ Name (Print) Signature Date
83 July 11, 2022 Item 11
City of Del Mar
Agenda Report
________________________________________________________________________________________________________ City Council Action:
TO: Honorable Mayor and City Council Members
FROM: Clem Brown, Interim Assistant City Manager
Karen Falk, Principal Engineer
Jennifer Gavin, Associate Planner
Via Ashley Jones, City Manager
DATE: July 11, 2022
SUBJECT: Powerhouse Park Tot Lot Renovation Project – Approval of Conditional Use Permit (CUP) 22-001, Coastal Development Permit (CDP) 22-009, and Design Review Permit (DRB) 22-011 and Authorization to Purchase Play Equipment REQUESTED ACTION/RECOMMENDATION:
Staff recommends the City Council hold a public hearing and: 1) Adopt a Resolution (Attachment A) conditionally approving permits CUP 22-001, CDP 22-009, and DRB 22-011 for the Powerhouse Park Tot Lot Renovation Project; and 2) Authorize the purchase of Kompan play equipment via a cooperative purchase agreement with Omnia Partners for a not-to-exceed amount of $102,580.
BACKGROUND
On February 1, 2021, the City Council approved Resolution 2021-03 authorizing the submittal of a Prop 68 Per Capita Grant Program application to the State of California’s Department of Parks and Recreation (State Parks) to refurbish the Tot Lot at Powerhouse Park. After approval of the resolution, staff submitted an application for the “Powerhouse Park Tot Lot Renovation Project” to State Parks for final approval. On June 21, 2001, the City Council approved two contracts with State Parks totaling $180,672 in non-competitive State grant funding. The grant contracts allow the City to be reimbursed by the State for project costs up to the City’s full allocation. At the June 2021 meeting, the City Council also allocated $45,000 toward the project to meet the grant’s local match requirement and directed staff to explore community fundraising opportunities to support the project’s anticipated cost.
After securing the grant, staff worked with the City’s as-needed engineering firm, Michael Baker International (MBI), to develop site concept plans utilizing different play equipment proposed by three reputable playground equipment vendors. The three playground equipment designs were reviewed by non-profit project fundraising partner Friends of the Powerhouse and the City’s Parks & Recreation Committee at two meetings (November 11, 2021 and February 9, 2022) for feedback. There was strong consensus for the site design that included play equipment proposed by Kompan. Additional feedback received included a 1 July 11, 2022 Item 12
City Council Agenda Report
Powerhouse Park Tot Lot Project
July 11, 2022
request to keep the sandbox and modify the design to emphasize play features for younger children, importance of powder coating the materials to ensure the equipment’s longevity and durability given its proximity to the ocean, avoid the use of integrated shade structures on the new equipment, and the importance of replacing the existing swing set in kind.
With this feedback and Kompan’s playground equipment design preferred, MBI completed the full site design, including a new ocean and sand themed rubberized play surface, and worked with City staff to complete the necessary permits, which included a CUP, CDP and DRB. MBI also prepared a project cost estimate and construction specification package that will be competitively bid to select a contractor to remove the existing play surface and equipment, conduct drainage improvements and install the new rubberized play surface and Kompan play equipment.
DISCUSSION/ANALYSIS:
Project Description
The Tot Lot is approximately 18 years old and in need of repair and upgrades. The play surface is unraveling in certain sections and needs replacement, including new drainage to address ponding on the western edge of the playground by the swing set. The play structure has rust, deteriorating wood, and sun-damaged sections. Over the past year, a metal set of stairs and landing had to be isolated and repaired because it had failed, making it a public safety issue. The swing set also had to be removed because the support beams and chain connections began to show signs of failure. Finally, modern playgrounds have designated play areas for kids of different age groups. Del Mar’s Tot Lot only has one structure, rated for ages 5-12, and staff has received feedback that it is not challenging or welcoming for older children.
The Powerhouse Park Tot Lot Renovation Project involves the removal of the existing play equipment (Attachment B) and the installation of new equipment including a swing set, custom climbing structure that supports a wider range of age-appropriate play, sand pit table, and several small pieces of ground-based play equipment. The existing rubberized play surface will be replaced with a new rubberized surface colored into a wave and beach pattern (Attachment C). The existing drainage will be replaced under the rubberized play surface to connect into an existing stormwater cleanout on the southwest edge of the Tot Lot. These improvements would not involve or require any grading, new hardscape or modifications to vegetation. The existing concrete site walls and donor bricks are to remain as-is.
The new play equipment specifications are identified below, along with details of the existing equipment (See Attachment D for visual renderings of the new play equipment and equipment specifications):
Play Equipment Existing Height Proposed Height
Swings 7’ 9” 8’6”
Slide and Climbing Structure 8’ 5” to the existing climbing pole
11’ 1” to the “fireman’s pole”
feature
2 July 11, 2022 Item 12
City Council Agenda Report
Powerhouse Park Tot Lot Project
July 11, 2022
8’ 7” to the top of post of the
taller play platform
7’ 7” to the top of post of the
shorter play platform
Approximately 9’ 7” to the top
of guardrail of the taller play
platform
Approximately 7’ 10” to the
top of guardrail of the shorter
play platform
Rocking Toys (2) 2’ 8” 1’4”-1’7”
Standing Spin Toy (N/A) 3’3”
Sand Pit Table (N/A) 4’ 6”
Play Panels (2) (N/A) 5’ 7”
Site/Zoning/Community Plan Information
The project site is located at Powerhouse Park, which is approximately 140,500 square feet in area and is situated between the Pacific Ocean and the 1600 block of Coast Boulevard, more specifically at 1658 Coast Boulevard. The western bluff that bounds the Park is approximately 600 feet in length and ranges in height from roughly 5 feet at the north end to 15-20 feet at the south end. The Powerhouse Community Center is situated at the north end of the Park and the existing Tot Lot is situated at the south end of the Park. Existing pathways encircle the Park leading to two established beach access points located at the north and center portions of the Park.
The site is zoned Public Parkland (PP) with Open Space, Beach, and Coastal Bluff Overlay Zone designations and is designated as Public Parkland in the South Beach Planning area.
The site is allows the continuation of the open space and park use. This project is located within the Coastal Commission’s appeal jurisdiction and is appealable to the California Coastal Commission (CCC).
Existing Tot Lot Amenities
The existing Tot Lot equipment includes a swing set, play structure (slides, bridge, and climbing equipment), and two smaller rocker toys made of a combination of wood and metal materials.
The equipment sits on a rubberized play surface surrounded by short site-walls that define the perimeter of the play area. A small sand pit is located on the south side of the playground.
Photographs of the existing Tot Lot can be found in Attachment B.
Compliance with the Community Plan, Del Mar Municipal Code (DMMC) and Local Coastal Program
Regulation Development Criteria Project Compliance
Use
Open Space
Element
Community Plan
“Space F”
Use should be
compatible and
relating to beach
oriented activities
The play equipment is a compatible use
and replaces existing equipment at the
existing Tot Lot
3 July 11, 2022 Item 12
City Council Agenda Report
Powerhouse Park Tot Lot Project
July 11, 2022
Setbacks
Open Space
Element
Community Plan
“Space F”
DMMC
30.55(Coastal
Bluff)
Setback from bluff
sufficient to protect
structures against
storm waves and
beach bluff erosion
without requiring sea
wall construction;
including a minimum
40 foot setback from
the coastal bluff top
edge
The Tot Lot would be redesigned and
reconstructed in order to meet all current
safety standards and to provide
accessibility. The proposed play
equipment would be roughly the same
footprint as the existing, but the equipment
will be spaced slightly differently from the
existing site walls and other equipment in
order to allow for the required “fall zone”
buffer areas surrounding the various
pieces of play equipment. The existing
swing sets are currently setback 29’11”
from the Coastal Bluff edge and the new
swings would be located slightly further to
the east at 31’3”. The City acknowledges
the proposed improvements encroach into
the 40-foot setback, which is consistent
with existing conditions. The proposed
improvements are minor and can be
removed or relocated if impacted by future
erosion or bluff failure
Structure
Height
Open Space
Element
Community Plan
“Space F”
Single-story limit The play equipment heights are one-story. (8’ 6’’ for the swings and 11’ 1” for the
climbing structure).
Public Access
Open Space
Element
Community Plan
“Space F”
Provide maximum
public access
The improved play structures would
enhance the park experience. No changes
are proposed to the Coastal Access path
loop except to provide temporary safety
during construction. This temporary
closure of the path (approximately October
to December 2022) would not affect the
access points down to the beach, which
are further north of the Tot Lot.
Lot Coverage
Open Space
Element
Community Plan
“Space F”
10% maximum The new play equipment is similar in size
to the existing equipment. The
Powerhouse Community Center and the
Tot Lot structures combined constitute less
than 3% Lot Coverage within the Park’s
boundary.
4 July 11, 2022 Item 12
City Council Agenda Report
Powerhouse Park Tot Lot Project
July 11, 2022
Furthermore, the project is consistent with the City’s Recreation Element, specifically Objective and Policy 3 “Use Innovative Park and Recreational facilities design methods to relate to the needs of the community” in that the Tot Lot equipment utilizes an ocean theme to relate to the adjacent beach.
Story Poles
Since the Tot Lot is still open to the public, the City prepared a visual exhibit to demonstrate the height of the new proposed climbing structure (Attachment E), consistent with the City’s Story Pole Policy. Three (3) story poles were temporarily attached to the existing play structure to demonstrate the tallest point of the new climbing structure at the “fireman’s pole” feature, which is located where the poles were installed for the photographic exhibits. Yellow string was placed at the 9’ 7” measurement of these poles to demonstrate the approximate location of where the guardrail panels around the taller slide platform would be located.
Similarly, a green tape was placed on a pole and placed next to the existing swings to demonstrate the highest point of the proposed swing structure at 8’ 6”.
Correspondence
As of the writing of this report, the Planning Department has not received any written correspondence regarding the proposed project.
Design Review Permit 22-011
Staff recommends that the Council review the project for its consistency with the provisions of the Design Review Ordinance (DRO) and the provisions for the Public Parkland described in DMMC Section 30.30.060. As designed, the project is consistent with the applicable provisions of the DRO and DMMC Section 30.30.060 and the DRB has recommended approval of the permit as further discussed below.
Conditional Use Permit 22-001
In accordance with DMMC Chapter 30.60, the findings required to grant a Conditional Use Permit have been made and are included in the attached resolution (Attachment A).
Coastal Development Permit 22-009
The project site is located within the California Coastal Zone Appeals Area and requires a Coastal Development Permit (CDP). The required findings for approval of the CDP are identified in DMMC 30.75.140 and are in the attached resolution (Attachment A).
In accordance with the procedural regulations of the certified LCP, the City’s action on the Coastal Development Permit will be reported to the California Coastal Commission’s Executive Director and the City’s action on the CDP application and is appealable to the California Coastal Commission.
Related Hearings
It is a long-standing policy that the City Council take final action on discretionary permits for City projects. Therefore, the project has been reviewed by the Parks and Recreation Committee (as discussed above), Design Review Board and Planning Commission for their 5 July 11, 2022 Item 12
City Council Agenda Report
Powerhouse Park Tot Lot Project
July 11, 2022
recommendation. The Design Review Board reviewed the project on May 25, 2022, and recommended approval of DRB 22-011. Resolution DRB-2022-10 is included as Attachment F. The Planning Commission reviewed the project on June 14, 2022, and recommended approval of CUP 22-001 and CDP 22-009. Resolution PC-2022-06 is included as Attachment G.
Project Financing/Costs
At this time, project costs are anticipated to be approximately $376,000. Of that amount, $180,672 will be provided by the State Parks grant funds, $45,000 will be provided by the City in required grant match funds, and $100,000 has been committed by local non-profit Friends of the Powerhouse.
The City intends to purchase the playground equipment directly from the manufacture, Kompan, via a cooperative purchase agreement with Omnia Partners at a 12-18% discount depending on the individual components. The cooperative purchase agreement discount saves the City $16,845 off the total retail price. Purchasing the equipment directly will also avoid a contractor markup if the equipment were included in the construction bid package. Section 10 of the City’s Purchase Policy allows the City to join public or quasi-public agencies in cooperative purchase plans or programs to purchase goods and/or services by contract, arrangement or agreement as allowed by law and in the best interest of the City without going through the bid process. The cost of the play equipment from Kompan is $102,580, funding for which is already available in the project account and will be offset by the pledged donation of $100,000 by Friends of the Powerhouse.
Friends of the Powerhouse have initiated a community fundraising campaign and have committed to reimburse the City $100,000 to cover the cost of the play equipment. The Friends of the Powerhouse will provide an initial donation of $50,000 to the City upon City Council approval to purchase the playground equipment. The Friends are currently fundraising for this project with events planned this month and will provide a second payment of $50,000 to the City no later than 30 days after their initial donation.
Based on increases to construction materials and labor costs resulting from inflation, staff is anticipating that there could be a potential project funding shortfall, which will not be known for certain until the completion of the bid process this fall. In order to ensure that any potential funding shortfall can be met with little to no impact to the City’s General fund, staff has proactively reached out to other Del Mar non-profits to gauge whether there is an interest and/or means to make up any funding shortfall for this project. Based on those efforts, staff believes that any funding shortfall can and will be offset by other non-profit funding resources in the community.
Next Steps
If the City Council authorizes the play equipment purchase as recommended, staff will immediately initiate a purchase order as there is up to a four-month lead-time to manufacture and receive the custom equipment. Over the next several months, staff will put the construction and installation package out to bid. During this time, the Friends of the Powerhouse will complete their community fundraising activities to cover the cost of the play equipment. Staff 6 July 11, 2022 Item 12
City Council Agenda Report
Powerhouse Park Tot Lot Project
July 11, 2022
anticipates coming back to City Council in September with a recommendation on awarding a construction contract. If Council awards a contract at that meeting, construction would likely take place October through December 2022. Assuming there are no further delays to the project schedule, the new Tot Lot should be open before the end of the calendar year.
FISCAL IMPACT:
There is no fiscal impact associated with the recommended action. There are sufficient funds in the approved Fiscal Year 2022-2023 CIP Budget to purchase the play equipment and no additional project funding is requested at this time.
ENVIRONMENTAL IMPACT:
This project is listed among the classes of projects determined to have less than significant adverse effect on the environment and therefore, is exempt from the provisions of the California Environmental Quality Act (CEQA) pursuant to CEQA Guidelines Section 15301 Class 1- Existing Facilities. Staff has further determined that none of the six exceptions to the use of a categorical exemption would apply to this project (CEQA Guidelines Section 15300.2).
HOUSING IMPACT:
This project does not include the development of any housing units; therefore, approval of the requested discretionary development applications would not have an impact on the City of Del Mar’s housing supply or housing affordability.
ATTACHMENTS:
Attachment A – Resolution Conditionally Approving Tot Lot Renovation Project Permits Attachment B – Existing Playground Equipment
Attachment C – Proposed Rubberized Play Surface Material Color Exhibit Attachment D – Proposed Equipment Specifications
Attachment E – New Equipment Height Exhibit
Attachment F – DRB Resolution DRB-2022-10
Attachment G – Planning Commission Resolution PC-2022-06 7 July 11, 2022 Item 12
RESOLUTION NO. 2022-___
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DEL
MAR, APPROVING DESIGN REVIEW BOARD PERMIT DRB22-
011, CONDITIONAL USE PERMIT CUP22-001, AND COASTAL
DEVELOPMENT PERMIT 22-009 TO REMOVE AND REPLACE
EXISTING PLAYGROUND EQUIPMENT AND MAKE RELATED
IMPROVEMENTS TO THE RUBARIZED SURFACE AND
DRAINAGE WITHIN THE PP (PUBLIC PARKLAND) ZONE AND
THE OPEN SPACE, BEACH, AND COASTAL BLUFF OVERLAY
ZONES AT POWERHOUSE PARK, DEL MAR, CALIFORNIA
WHEREAS, the City of Del Mar is the owner of real property commonly referred to as Powerhouse Park (APNs 299-230-26-00) (the “Property”); and WHEREAS, the City of Del Mar filed an application for a Design Review Permit, Conditional Use Permit, and Coastal Development Permit (the “Project”) to remove the existing playground equipment and ground surface at the Powerhouse Park Tot Lot and to install new play equipment and ground surface including new swings, a new slide and climbing structure, other smaller accessory play structures; and to improve the drainage system beneath the play surface at a children’s play area located within the PP (Public Parkland) Zone, and the Open Space, Beach, and Coastal Bluff Overlay Zones; and WHEREAS, the project is listed among the classes of projects determined to have less than significant adverse effect on the environment and therefore, is exempt from the provisions of the California Environmental Quality Act (CEQA) pursuant to CEQA Guidelines Section 15301 Class 1- Existing Facilities and has further been determined that none of the six exceptions to the use of a categorical exemption would apply to this project (CEQA Guidelines Section 15300.2); and
WHEREAS, pursuant to adopted City policy, the Planning Commission and Design Review Board are required to make a recommendation about the Project’s compliance with the standards and intent of the City’s Community (General) Plan and Municipal Code to the City Council; and
WHEREAS, on May 25, 2022 the Design Review Board of the City of Del Mar held a duly noticed public hearing to review Design Review Permit DRB22-011 and at which time all persons desiring to be heard were heard; and
WHEREAS, evidence was submitted and considered to include without limitation:
a. Plans submitted by the applicant.
b. Written information submitted with the application.
c. Staff Reports, dated May 25, 2022, which is incorporated by reference as though fully set forth herein.
d. Additional information submitted during the hearing; an Attachment A 8 July 11, 2022 Item 12
Resolution No. 2022-__
WHEREAS, the Design Review Board voted on consent unanimously on consent to recommend approval of the Project to the Del Mar City Council; and WHEREAS, on June 14, 2022, the Planning Commission of the City of Del Mar held a duly noticed public hearing to review Conditional Use Permit CUP22-001 and a Coastal Development Permit CDP22-009 at which time all persons desiring to be heard were heard; and
WHEREAS, evidence was submitted and considered to include without limitation:
a. Plans submitted by the applicant.
b. Written information submitted with the application.
c. Staff Report, dated June 14, 2022, which is incorporated by reference as though fully set forth herein.
d. Additional information submitted during the hearing; and WHEREAS, the Planning Commission voted unanimously on consent to recommended approval of the Project to the Del Mar City Council; and WHEREAS, on July 11, 2022 the City Council of the City of Del Mar held a duly noticed public hearing to review the referenced entitlements and at which time all persons desiring to be heard were heard; and
WHEREAS, evidence was submitted and considered to include without limitation:
a. Plans submitted by the applicant.
b. Written information submitted with the application.
c. Staff Report, dated July 11, 2022 which is incorporated by reference as though fully set forth herein.
d. Additional information submitted during the hearing; and NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Del Mar that Design Review Permit 22-011, is hereby approved based on the following findings:
1. The proposed Project will not be detrimental to the Community and none of the Regulatory Conclusions contained in Sections of Chapters 23.08 (Design Review) of the Del Mar Municipal Code (DMMC) can be made.
NOW, THEREFORE, BE IT FURTHER RESOLVED by the City Council of the City of Del Mar that Conditional Use Permit 22-001 is hereby approved based on the following findings:
Attachment A 9 July 11, 2022 Item 12
Resolution No. 2022-__
1. That the use for which the Conditional Use Permit is applied for is permitted within the zone in which the property is located.
Accessory structures for Park/Recreational Uses are allowed in the Public Parkland Zone, Open Space Overlay, Beach Overlay, and Coastal Bluff Overlay Zones.
2. That the granting of such Conditional Use Permit will not be detrimental to the public health, safety, comfort, convenience and general welfare, will not adversely affect the established character of the surrounding neighborhood, and will not be injurious to the property or improvements on such vicinity and zone in which the property is located.
Replacing the existing playground equipment with new, safety rated structures is meant to improve the public health, safety, comfort, convenience, and general welfare of those using the Tot Lot by replacing older, well-worn equipment. Further, the equipment is compatible with the park/recreational use of the lot and will not adversely affect the established character for the surrounding neighborhood. It is designed in a way that will not be injurious to the people, property, or improvements in the vicinity and zone in which the property is located.
3. That the proposed use is properly located in relation to the community as a whole and to other land uses and to transportation and service facilities in the vicinity; and further, that the use can be adequately served by such public facilities and street capacities without placing an undue burden on the streets.
The new playground equipment would replace existing equipment in an already established park playground and would not place any undue burden on public facilities.
4. That the site is of sufficient size to accommodate the proposed use and all yards, open spaces, walls and fences, parking, landscaping, and such other features as are required by this chapter or as are needed, in the opinion of the Planning Commission, or the City Council on appeal, are properly provided to be compatible and harmonious with nearby uses.
The existing park (140,500 sq. ft.) is of adequate size to accommodate the replacement playground equipment and the replacement will not result in a change to the size or use of the existing playground area.
5. That the granting of such Conditional Use Permit will not be contrary to the adopted Community Plan, including its goals, objectives, or policies, or to Attachment A 10 July 11, 2022 Item 12
Resolution No. 2022-__
the objectives of any ordinance, regulation, or plan in effect to implement said Community Plan.
This project is consistent with the goals, objectives, and policies of the Community Plan.
NOW, THEREFORE, BE IT FURTHER RESOLVED by the City Council of the City of Del Mar that Coastal Development Permit CDP22-009 is hereby approved based on the following findings:
1. That the use for which the Coastal Development Permit is applied is permitted within the zone in which the property is located.
Accessory structures for Park/Recreational Uses are allowed in the Public Parkland Zone, Open Space Overlay, Beach Overlay, and Coastal Bluff Overlay Zones.
2. That the proposal meets the criteria of the applicable chapters of this Title.
The proposed project, as designed and conditioned, meets the criteria of the applicable chapters of the Del Mar Zoning Code, specifically: Chapters 30.30 (Public Parkland); 30.50 (Beach Overlay Zone); 30.55 (Coastal Bluff Overlay Zone); 30.60 (Open Space Overlay Zone); 30.61 (Public Access); 30.74 (Conditional Use Permits); and 30.75 (Coastal Development Permits). This consistency is described in detail in the following finding.
3. That the granting of such Coastal Development Permit will be in conformity with the certified City of Del Mar Local Coastal Program (LCP).
The Coastal Development Permit, as conditioned, will be in conformity with the certified City of Del Mar Local Coastal Program. The project site is located within a special overlay zone identified in the LCP, the Coastal Bluff Overlay Zone. A geotechnical assessment concluded that replacing the existing playground equipment would not adversely impact the coastal bluff. The Tot Lot would be redesigned and reconstructed in order to meet all current safety standards and to provide accessibility. The proposed play equipment would be roughly the same footprint as the existing, but the equipment will be spaced slightly different from the existing site walls and other equipment in order to allow for the required “fall zone” buffer areas surrounding the various pieces of play equipment. The existing swing sets are currently setback a minimum of 29’11” from the Coastal Bluff edge and the new swings would be located slightly further to the east at 31’3”. The City acknowledges that the proposed improvements located within 40 feet of the coastal bluff edge cannot be afforded protection in the future. However, the Attachment A 11 July 11, 2022 Item 12
Resolution No. 2022-__
proposed improvements are minor and can be removed or relocated if impacted by future erosion or bluff failure. No new grading, hardscape, or vegetation modifications are proposed as a part of this project. Further, the structure has been designed and located so as to not have adverse impacts on public access and views of the ocean.
4. That for all development proposals located seaward of the first public roadway, the proposed development is consistent with and implements the applicable requirements for provision of public access contained in this Title and in the public access and public recreation policies of Chapter 3 of the California Coastal Act.
The project is consistent with and implements the applicable requirements for provision of public access contained in the Del Mar Zoning Code and in the public access and public recreation policies of Chapter 3 of the California Coastal Act.
The project is located between the first coastal roadway and the sea and, therefore, in the Coastal Commission appeals area. However, the public’s interest in gaining access to the shoreline is not affected by the development because two established beach access points already exist within the park and are not impeded by the proposed improvements. The pathway loop adjacent to the Tot Lot will be temporarily closed off for construction purposes for approximately three months (October-December on the current schedule) outside of high demand summer months. This portion of the path loop does not provide immediate access to one of the two beach access points at the beach and alternative paths will still be open so as to not impede access to the beach.
5. That for all development proposals involving the construction or placement of a shoreline protection device, that the proposed development is consistent with and implements the applicable requirements of the Beach Overlay Zone and Setback Seawall Zone provisions contained in this Title and is consistent with and implements the provisions of the Chapter Three Policies of California Coastal Act.
No shoreline protection devices are proposed as part of this project.
6. That the proposal is consistent with and implements the provisions of public view protection Policies IV-22 through IV-27 of the City of Del Mar LCP Land Use Plan.
The project is consistent with and implements the provisions of public view protection policies of the City of Del Mar Local Coastal Program, including those of the LCP Land Use Plan. The Park provides access to the scenic qualities of coastal resources. Due to its location and design, the project would not adversely Attachment A 12 July 11, 2022 Item 12
Resolution No. 2022-__
affect any public views. The proposed single-story play structure (11 feet, 1 inch in height at the tallest point) would provide replacement playground equipment in the approximate same location as existing Tot Lot equipment in an area that will continue to provide for the public enjoyment of scenic views. The existing Tot Lot is located downslope from the public sidewalk at Coast Boulevard and is shielded by mature vegetation and existing train utilities along Coast Boulevard. The Design Review Board has reviewed this project further against the Design Review Ordinance, which assesses impacts on public scenic views and has recommended approval to the Coastal Commission.
7. That for all development proposals on sites with identified wetland resources, that the proposed development is consistent with and implements the provisions of the Lagoon Overlay Zone as contained within the City of Del Mar Local Coastal Program Implementing Ordinances and Land Use Plan.
The project site does not contain any identified wetland resource; and is not subject to the provisions of the Lagoon Overlay Zone.
AND BE IT FURTHER RESOLVED by the City Council of the City of Del Mar that approval of DRB22-011, CUP22-001, CDP22-009 shall be subject to the following conditions:
General Conditions:
G-1 [Business License]
Prior to commencement of any work on site, all contractors and subcontractors shall obtain a valid City of Del Mar Business License. The general contractor shall be responsible for ensuring that all subcontractors obtain required Business License and shall retain copies of said permits on site for verification by City staff.
G-3 [Development authorization limited to plan set]
This permit is granted based on the plans which were presented to the City Council at their July 11, 2022 hearing, and so identified by the staff of the Del Mar Planning and Community Development Department. Revisions to these plans and/or any proposals for modification shall require review and prior authorization from the appropriate entities of the City of Del Mar.
G-6 [Recycling]
Attachment A 13 July 11, 2022 Item 12
Resolution No. 2022-__
All work associated with the project shall be done in conformance with the City of Del Mar’s Mandatory Recycling Ordinance (No. 590).
G-7 [Code compliance]
Approval of this application shall not waive the requirement for compliance with the provisions of the Del Mar Municipal Code or other applicable City regulations in effect at the time of Building Permit issuance, unless specifically waived in this permit authorization.
G-11 [Plan for Construction-Phase Impacts]
Prior to issuance of Building Permits or commencement of project implementation (whichever comes first), the applicant shall provide a plan for construction-phase parking and equipment/materials storage for the project. The plan must include the following:
a. Identification of an on-site material storage location; b. Identification of an on-site equipment storage location; c. Identification of at least two on-site parking space which will remain available throughout the duration of the project;
d. Location of any temporary sanitary facilities;
e. A note stating that “If on-street parking is utilized, a minimum street access clearance of 20ft. will be maintained”;
f. Map displaying any/all haul routes; and
g. Contact information (phone number and Email) for the on-site supervisor(s);
1. This information must also be posted on-site in a location which is readily visible from the public right-of-way for the duration of the project.
The plan required herein shall be subject to the review and written approval of the Planning and Community Development Director, working in consultation with Parking Enforcement and Public Works Departments. Haul routes and work and/or storage of material or equipment within a City right-of-way will require the receipt of an Encroachment Permit. The requirements mentioned above may be modified by the Planning and Community Development Director upon a determination that sufficient alternatives have been proposed which achieve a similar level of compliance.
G-11A In addition to the submittal of a Construction Phase Impact Plan, the applicant must place a Construction Parking Placard in all vehicles associated with the project which will be parked off-site. The placard must remain in plain view on the dashboard of the vehicle throughout the duration of the project. A Construction Parking Placard can be obtained from the City of Del Mar Planning Department.
G-13 [Permit Expiration]
Attachment A 14 July 11, 2022 Item 12
Resolution No. 2022-__
This permit shall expire three years from the date of approval (July 11, 2025) unless a Building Permit has been issued (if required by the DMMC) and substantial construction has been accomplished in reliance upon the permit. Pursuant to the DMMC, substantial construction is defined as: completion of a minimum of 10% of the total amount of construction authorized by the permit, based on the monetary value of construction costs including grading, site preparation and construction but specifically excluding all costs associated with the acquisition of interest in the project site and all costs associated with the preparation and processing of permits or plans.
G-16 [Compliance with City noise regulations]
The applicant and all parties involved with implementation of the project shall comply with the regulations of the DMMC with regard to construction noise. The regulations stipulate that all construction activities are limited to the following periods: between 7:00 a.m. and 7:00 p.m./Monday through Friday and between 9:00 a.m. and 7:00 p.m. on Saturdays.
Construction activities are prohibited during other hours and on Sundays and City Holidays. The City’s Noise Ordinance, Chapter 9.20 of the Del Mar Municipal Code, includes the dates of City Holidays, and can be viewed on the City’s web page (www.delmar.ca.us).
G-17 [Dig Alert]
Prior to excavation or trenching, the applicant shall call Underground Service Alert of Southern California (Dig Alert- 1-800-227-2600) for a mark out of service utilities.
G-18 [Rules for Construction-related Signage]
All construction-related signage posted at the project site shall comply with DMMC Chapter 30.84 (Signs). The pertinent sections of the Sign Chapter allow installation of a total 5.5 square feet of temporary signage on a residential property (that is cumulative of all signs posted). Such signs may be posted for a maximum of sixty (60) days in a calendar year.
The restrictions noted above do not apply to the Development Pending, Construction Noise Notice and Building Permit signs required by the City as part of the project review process.
All construction related signage, including City required signs, shall be removed prior to final approval of the project.
Attachment A 15 July 11, 2022 Item 12
Resolution No. 2022-__
PASSED, APPROVED AND ADOPTED by the City Council of the City of Del Mar, California, at a Regular Meeting held the 11th day of July, 2022 ____________________________
Dwight Worden, Mayor
City of Del Mar
APPROVED AS TO FORM:
__________________________
Leslie E. Devaney, City Attorney
City of Del Mar
ATTEST AND CERTIFICATION:
STATE OF CALIFORNIA
COUNTY OF SAN DIEGO
CITY OF DEL MAR
I, Sarah Krietor, Administrative Services Manager/City Clerk of the City of Del Mar, California, DO HEREBY CERTIFY that the foregoing is a true and correct copy of Resolution 2022-___, adopted by the City Council of the City of Del Mar, California, at a Regular Meeting held the 11th day of July 2022 by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
_____________________________
Sarah Krietor, Administrative Services
Manager/City Clerk
City of Del Mar
Attachment A 16 July 11, 2022 Item 12
Existing Tot Lot Equipment
Swings 7’ 9” Tall
Attachment B 17 July 11, 2022 Item 12
Existing Main Play Structure
8’ 7” height to post of taller platform
7’ 4” height to post of shorter platform
Attachment B 18 July 11, 2022 Item 12
Existing Springer Toys 1’4”-1’7” tall
Attachment B 19 July 11, 2022 Item 12
Attachment C 20 July 11, 2022 Item 12
Attachment C 21 July 11, 2022 Item 12
Attachment C 22 July 11, 2022 Item 12
Attachment C 23 July 11, 2022 Item 12
Attachment D
24 July 11, 2022 Item 12
Attachment D
25 July 11, 2022 Item 12
Attachment D
26 July 11, 2022 Item 12
PLAYTRADE AG
SPIELSTRASSE
FUNLAND
TEL:XXXXX
1 2
xx-xxxx
EN 1176:2008
XXXX
PCM003121
ID 20163791
DARBRA
2022-04-29
Colorline:
Foundation:
Norm:
Units:
Post material:
Post colors:
Classic
90 cm
ASTM
inch
Steel
Anthracite
Attachment D
27 July 11, 2022 Item 12
P3;1847.1;765.1;0 P2;1082;0;0 P1;0;0;0
ASTM
Scale: 1/4" = 1'-0"
PCM003121
ID 20163791
DARBRA
2022-04-29
=
All Unspecified Holes
Foundation: 90 cm 1
Beton
Beton
Concrete
Hormigón
Béton
Cemento
Beton
Betong
0 m³ 0 cu.ft.
Safety Zone
Perimeter: 54 ft
Area: 212.2 ft²
Attachment D
28 July 11, 2022 Item 12
PCM003121
ID 20163791
DARBRA
2022-04-29
Attachment D
29 July 11, 2022 Item 12
ASTM
INCH
CM 1 2 1
Scale: 1/8" = 1'-0"
PCM003121
ID 20163791
DARBRA
2022-04-29
Attachment D
30 July 11, 2022 Item 12
PCM003121
ID 20163791
DARBRA
2022-04-29
PANEL-1
CP302200-04
---------------------- PANEL-2
CP313100-03
---------------------- CP810600-01
Attachment D
31 July 11, 2022 Item 12
Attachment D
32 July 11, 2022 Item 12
Attachment D
33 July 11, 2022 Item 12
Attachment D
34 July 11, 2022 Item 12
Item no. PCM003221-0901
General Product Information
Dimensions LxWxH 6'7"x3'3"x2'11"
Age group 6m - 5
Play capacity (users) 9
Color options
The Emotions Play Panels immensely attract
young children with their variation of rich,
responsive play textures. The sense of touch is
hugely stimulated with the Conveyor belt. The
tactile stimulation, apart from being deeply
satisfying for children, stimulates their fine
motor and language abilities. So does the
thematic character of the play panel: there is a
watch to one side of the Conveyor Belt, and a
Shop window that can be open and closed with
curtains. This inspires playing shop or other
dramatic play scenarios, that stimulate
communication, language, and social-emotional
development. The mirror is there to assist the
shop assistant in looking okay, and looking
behind his shoulders, too. KOMPAN Play
Institute analysis shows the mirror as an
immensely attractive activity for young children,
developing their understanding of themselves
as individuals, as well as their social-emotional
skills. The binoculars make possible a view of
the playground.
1 / 3/11/2022 Data is subject to change without prior notice. 5 1 7 4
5 Play Panel 2 - Emotion, Classic
PCM003221
Attachment D
35 July 11, 2022 Item 12
2 / 3/11/2022 Data is subject to change without prior notice.
Play Panel 2 - Emotion, Classic
PCM003221
Attachment D
36 July 11, 2022 Item 12
Item no. PCM003221-0901
Installation Information
Max. fall height 0"
Safety surfacing area 0 ft2
Number of installers 2
Total installation time 6.1
Excavation volume 0.07 yd3
Concrete volume 0.00 yd3
Footing depth (standard) 2'9"
Shipment weight 154 lbs
Anchoring options
Warranty Information
Panels of 19mm EcoCore™. EcoCore™ is a
highly durable, eco friendly material, which is not
only recyclable after use, but also consists of a
core produced from 100% recycled material.
Main posts with hot-dip galvanized steel footing
are available in different materials: Pressure
impregnated pinewood posts. Pre-galvanized
inside and outside with powder-coated top finish
steel posts. Lead-free aluminum with color
anodized top finish. Greenline TexMade posts of
100% post-consumer recycled PE and textile
waste.
The Xylophone music panel consist of HDPE
material in 19mm EcoCore™. The pipes are
made of die cast aluminum specifically alloyed
for outdoor environments. The percussion panel
consist of 2 Conga Drums with PP tubes and top
in colored ABS.
KOMPAN GreenLine versions are designed with
the most environmentally friendly materials with
the lowest possible CO2e emission factor such
as EcoCoreTM panels of 100% post-consumer
recycled ocean waste.
3 / 3/11/2022 Data is subject to change without prior notice.
Play Panel 2 - Emotion, Classic
PCM003221
EcoCore HDPE Lifetime
Post 10 years
Hot dip galvanized steel Lifetime
Movable parts 2 years
Spare parts guaranteed 10 years
Elevated
activities 0
Accessible
elevated
activities
Accessible
ground
level
activities
Accessible
ground
level play
types
Present 0 3 2
Required 0 3 2
Attachment D
37 July 11, 2022 Item 12
4 / 3/11/2022 Data is subject to change without prior notice.
Sustainability
Cradle to Gate A1-A3 Total CO₂
emission CO₂e/kg Recycled materials
kg CO₂e kg CO₂e/kg %
PCM003221-0901 160.18 2.67 58.41
PCM003221-0950 134.08 2.02 70.57
The ov erall f ramework applied f or these f actors is the Env ironmental Product Declaration (EPD), which quantif ies "env ironmental inf ormation on the lif e cy cle of a product and enable comparisons between products f ulf illing the same f unction" (ISO, 2006). This f ollows the structure and applies a Lif e-Cy cle Assessment approach to the entire Product stage f rom raw material through manuf acturing (A1-A3)) Attachment D
38 July 11, 2022 Item 12
* Max fall height | ** Total height | *** Safety surfacing area * Max fall height | ** Total height Click to see 1:100 ratio TOP VIEW Click to see 1:100 ratio SIDE VIEW 5 / 3/11/2022 Data is subject to change without prior notice.
Play Panel 2 - Emotion, Classic
PCM003221
Attachment D
39 July 11, 2022 Item 12
Item no. MSC542500-3417P
General Product Information
Dimensions LxWxH 7'7"x3'9"x4'6"
Age group 2 - 5
Play capacity (users) 6
Color options
WOW! The Dolphin Work Station is the
strongest invitation to play creatively with
friends. Sand and water play is serious play for
young children, who benefit greatly from
opportunities to experiment with the properties
of natural materials feeling, forming and
building with it. This is supported by a sand
basin, a sand funnel and a sand shovel. The
funnel evokes children’s cognitive insights in
object permanence. The two heights of the
table support children ergonomically across
ages and abilities. The work station has ample
room for young children to play side by side or
together. This supports children’s socialemotional skills as they grow to form friendships and social relationships. The
Dolphin Work Station is not only attractive, it
motivates children to play their way to insights
and friendships.
1 / 2/24/2022 Data is subject to change without prior notice. 4 1 5 3
Dolphin Work Station
MSC5425
Attachment D
40 July 11, 2022 Item 12
2 / 2/24/2022 Data is subject to change without prior notice.
Dolphin Work Station
MSC5425
Attachment D
41 July 11, 2022 Item 12
Item no. MSC542500-3417P
Installation Information
Max. fall height 0"
Safety surfacing area 0 ft2
Number of installers 2
Total installation time 5.0
Excavation volume 0.35 yd3
Concrete volume 0.00 yd3
Footing depth (standard) 2'0"
Shipment weight 150 lbs
Anchoring options In-ground a
Surface a
Warranty Information
Panels of 19mm EcoCore™. EcoCore™ is a
highly durable, eco friendly material, which is not
only recyclable after use, but also consists of a
core produced from 100% recycled material.
Yellow basin is made from UV-stabilized PC with
a thickness of 3 mm. The basin can be lifted up
for emptying. The basin is fixed to the structure
by a steel chain to prevent removal.
The steel surfaces are hot-dip galvanized inside
and outside with lead-free zinc. The
galvanization has excellent corrosion resistance
in outside environments and requires minimal
maintenance.
Play activities like the Funnel are made of
injection molded high quality nylon (PA6). PA6
has good wearing and impact strength and is UV
stabilized.
Sand strainer is made of high-quality stainless
steel to ensure durability of the product.
Sand shovel is made of PP. PP has good
wearing and impact resistance.
3 / 2/24/2022 Data is subject to change without prior notice.
Dolphin Work Station
MSC5425
EcoCore HDPE Lifetime
Hot dip galvanized steel Lifetime
PE/PP Components 5 years
Stainless steel components Lifetime
Spare parts guaranteed 10 years
Elevated
activities 0
Accessible
elevated
activities
Accessible
ground
level
activities
Accessible
ground
level play
types
Present 0 1 1
Required 0 1 1
Attachment D
42 July 11, 2022 Item 12
4 / 2/24/2022 Data is subject to change without prior notice.
Sustainability
Cradle to Gate A1-A3 Total CO₂
emission CO₂e/kg Recycled materials
kg CO₂e kg CO₂e/kg %
MSC542500-3417P 147.11 2.16 62.29
The ov erall f ramework applied f or these f actors is the Env ironmental Product Declaration (EPD), which quantif ies "env ironmental inf ormation on the lif e cy cle of a product and enable comparisons between products f ulf illing the same f unction" (ISO, 2006). This f ollows the structure and applies a Lif e-Cy cle Assessment approach to the entire Product stage f rom raw material through manuf acturing (A1-A3)) Attachment D
43 July 11, 2022 Item 12
* Max fall height | ** Total height | *** Safety surfacing area * Max fall height | ** Total height Click to see 1:100 ratio TOP VIEW Click to see 1:100 ratio SIDE VIEW 5 / 2/24/2022 Data is subject to change without prior notice.
Dolphin Work Station
MSC5425
Attachment D
44 July 11, 2022 Item 12
Item no. GXY801521-3717
General Product Information
Dimensions LxWxH 1'5"x1'6"x5'7"
Age group 5 - 12
Play capacity (users) 1
Color options
The quirky shapes, toothy top and triangle
platform invite curious 5-12 year olds to
investigate the Spica. The rotating movement of
the Spica is at the center. It takes exploration to
reach the point of total mastery of spinning. The
curved pole invites holding onto and the child
figures out that leaning into the pole means
intense spinning speed, leaning out means
slowing down speed. This will appeal and make
play go on and on, even when children are
hanging in their arms. Getting to master the
rotation element stimulates the cognitive skills
of the child, in particular the logical thinking.
The agility, balance and coordination are
intensively trained as the Spica invites different
body positions when spinning. The triangular
shape of the seat allows room for up to three
children, stimulating the social skills of
cooperation and turn-taking.
1 / 2/24/2022 Data is subject to change without prior notice. 1 1 3 1
1 Spica 2
GXY8015
Attachment D
45 July 11, 2022 Item 12
2 / 2/24/2022 Data is subject to change without prior notice.
Spica 2
GXY8015
Attachment D
46 July 11, 2022 Item 12
Item no. GXY801521-3717
Installation Information
Max. fall height 3'3"
Safety surfacing area 146 ft2
Number of installers 2
Total installation time 1.6
Excavation volume 0.50 yd3
Concrete volume 0.39 yd3
Footing depth (standard) 2'11"
Shipment weight 123 lbs
Anchoring options In-ground a
Surface a
Warranty Information
The Spica bearings are installed in a one-piece
design bearing house with integrated drain holes
for water passage. The two large steel bearings
are fully closed and lifetime lubricated.
The unique GALAXY super triangle deck plate
has an inner core of galvanised steel and soft
outer layer of PUR rubber. The rounded edges
has a non-skid pattern for safe play.
The colored top is made of injection molded high
quality nylon (PA6) which is UV stabilized to
ensure long life time. The two component design
is assembled with steel pins around the steel
pipe.
The steel surfaces are hot-dip galvanized inside
and outside with lead-free zinc. The
galvanization has excellent corrosion resistance
in outside environments and requires minimal
maintenance.
3 / 2/24/2022 Data is subject to change without prior notice.
Spica 2
GXY8015
Hot dip galvanized steel Lifetime
Hardware 10 years
Bearing construction 5 years
Spare parts guaranteed 10 years
Elevated
activities 0
Accessible
elevated
activities
Accessible
ground
level
activities
Accessible
ground
level play
types
Present 0 1 1
Required 0 1 1
Attachment D
47 July 11, 2022 Item 12
4 / 2/24/2022 Data is subject to change without prior notice.
Sustainability
Cradle to Gate A1-A3 Total CO₂
emission CO₂e/kg Recycled materials
kg CO₂e kg CO₂e/kg %
GXY801521-3717 120.37 3.15 31.09
The ov erall f ramework applied f or these f actors is the Env ironmental Product Declaration (EPD), which quantif ies "env ironmental inf ormation on the lif e cy cle of a product and enable comparisons between products f ulf illing the same f unction" (ISO, 2006). This f ollows the structure and applies a Lif e-Cy cle Assessment approach to the entire Product stage f rom raw material through manuf acturing (A1-A3)) Attachment D
48 July 11, 2022 Item 12
* Max fall height | ** Total height | *** Safety surfacing area * Max fall height | ** Total height Click to see 1:100 ratio TOP VIEW Click to see 1:100 ratio SIDE VIEW 5 / 2/24/2022 Data is subject to change without prior notice.
Spica 2
GXY8015
Attachment D
49 July 11, 2022 Item 12
Item no. KPL102-0411
General Product Information
Dimensions LxWxH 1'2"x3'0"x2'10"
Age group 2 - 12
Play capacity (users) 1
Color options
The Sea Lion is a hugely inviting springer that
attracts and supports children’s play
relentlessly, again and again. The rocking
sensation is a great movement response.
Movement response is one of the greatest play
sensations there is. Apart from the fun, this
adds a feeling of control to the child’s play. The
responsive movement also trains the
understanding of cause and effect in young
children: that actions have an effect on the
world. This stimulates logical thinking. Rocking
the Sea Lion trains the child’s sense of balance
and space as well as their leg and arm muscles
when holding tight and pushing their feet hard
into the foot support. All of these basic motor
and muscle skills help train the child’s bodily
cognition, supporting important life skills such
as being able to sit still on a chair or navigate
traffic securely.
1 / 2/24/2022 Data is subject to change without prior notice. 1 1 1 4
Sea Lion
KPL102
Attachment D
50 July 11, 2022 Item 12
2 / 2/24/2022 Data is subject to change without prior notice.
Sea Lion
KPL102
Attachment D
51 July 11, 2022 Item 12
Item no. KPL102-0411
Installation Information
Max. fall height 1'7"
Safety surfacing area 168 ft2
Number of installers 2
Total installation time 2.3
Excavation volume 0.20 yd3
Concrete volume 0.00 yd3
Footing depth (standard) 1'6"
Shipment weight 59 lbs
Anchoring options In-ground a
Surface a
Warranty Information
Panels of 19mm EcoCore™. EcoCore™ is a
highly durable, eco friendly material, which is not
only recyclable after use, but also consists of a
core produced from 100% recycled material.
KOMPAN Springs are made of high quality
spring steel according to EN10270. The springs
are cleaned by phosphating before they are
painted with an epoxy primer and a polyester
powder coating as top finish. The springs are
fixed by unique anti pinch fittings for maximum
safety and long lifetime.
The springs are fixed by unique anti pinch
fittings for maximum safety and long lifetime.
Handholds and footrests are made of injection
moulded high quality nylon (PA6). PA6 has good
wearing and impact strength.
Seat is made of a molded PP insert with an
outer soft layer of TPE rubber. TPE rubber has
good shock absorption and ensures durable
solution.
3 / 2/24/2022 Data is subject to change without prior notice.
Sea Lion
KPL102
EcoCore HDPE Lifetime
Springs 5 years
Handle 10 years
PE/PP Components 5 years
Spare parts guaranteed 10 years
Elevated
activities 0
Accessible
elevated
activities
Accessible
ground
level
activities
Accessible
ground
level play
types
Present 0 1 1
Required 0 1 1
Attachment D
52 July 11, 2022 Item 12
4 / 2/24/2022 Data is subject to change without prior notice.
Sustainability
Cradle to Gate A1-A3 Total CO₂
emission CO₂e/kg Recycled materials
kg CO₂e kg CO₂e/kg %
KPL102-0411 65.20 2.62 43.00
The ov erall f ramework applied f or these f actors is the Env ironmental Product Declaration (EPD), which quantif ies "env ironmental inf ormation on the lif e cy cle of a product and enable comparisons between products f ulf illing the same f unction" (ISO, 2006). This f ollows the structure and applies a Lif e-Cy cle Assessment approach to the entire Product stage f rom raw material through manuf acturing (A1-A3)) Attachment D
53 July 11, 2022 Item 12
* Max fall height | ** Total height | *** Safety surfacing area * Max fall height | ** Total height Click to see 1:100 ratio TOP VIEW Click to see 1:100 ratio SIDE VIEW 5 / 2/24/2022 Data is subject to change without prior notice.
Sea Lion
KPL102
Attachment D
54 July 11, 2022 Item 12
Item no. PCM103-0401
General Product Information
Dimensions LxWxH 1'2"x2'4"x2'5"
Age group 2 - 5
Play capacity (users) 1
Color options
Rocking on the Dolphin is a wildly attractive
playground activity that children will return to
again and again. Children are able to control
the play by moving their bodies to make the
Dolphin rock. They will feel delighted to have
the horse respond to their movements. The two
sides support the seated position, and the foot
and hand holds provide a stable point to stem
feet and hands from, to create the movement.
This is not only fun, but is also good for
physical and cognitive development. When
children begin to learn the connections between
their bodies and their movements, they begin to
make cognitive connections to a range of body
movements and sensations. The horse theme
will be attractive to the child's imagination, and
will encourage wonderful physical and
imaginative play.
1 / 2/23/2022 Data is subject to change without prior notice. 1 1 1 4
Dolphin
PCM103
Attachment D
55 July 11, 2022 Item 12
2 / 2/23/2022 Data is subject to change without prior notice.
Dolphin
PCM103
Attachment D
56 July 11, 2022 Item 12
Item no. PCM103-0401
Installation Information
Max. fall height 1'4"
Safety surfacing area 170 ft2
Number of installers 2
Total installation time 2.1
Excavation volume 0.22 yd3
Concrete volume 0.00 yd3
Footing depth (standard) 1'5"
Shipment weight 59 lbs
Anchoring options In-ground a
Surface a
Warranty Information
Panels of 19mm EcoCore™. EcoCore™ is a
highly durable, eco friendly material, which is not
only recyclable after use, but also consists of a
core produced from 100% recycled material.
KOMPAN Springs are made of high quality
spring steel according to EN10270. The springs
are cleaned by phosphating before they are
painted with an epoxy primer and a polyester
powder coating as top finish. The springs are
fixed by unique anti pinch fittings for maximum
safety and long lifetime.
The springs are fixed by unique anti pinch
fittings for maximum safety and long lifetime.
Seat is made of Ekogrip™ panel that consist of a
15mm thick PE base with 3 mm top-layer of soft
rubber with a non-skid effect.
Handles are made of polypropylene PP with
excellent impact strength and usable within a
large temperature span.
3 / 2/23/2022 Data is subject to change without prior notice.
Dolphin
PCM103
EcoCore HDPE Lifetime
Hot dip galvanized steel Lifetime
Springs 5 years
Spare parts guaranteed 10 years
Elevated
activities 0
Accessible
elevated
activities
Accessible
ground
level
activities
Accessible
ground
level play
types
Present 0 1 1
Required 0 1 1
Attachment D
57 July 11, 2022 Item 12
4 / 2/23/2022 Data is subject to change without prior notice.
Sustainability
Cradle to Gate A1-A3 Total CO₂
emission CO₂e/kg Recycled materials
kg CO₂e kg CO₂e/kg %
PCM103-0401 73.98 2.72 43.17
The ov erall f ramework applied f or these f actors is the Env ironmental Product Declaration (EPD), which quantif ies "env ironmental inf ormation on the lif e cy cle of a product and enable comparisons between products f ulf illing the same f unction" (ISO, 2006). This f ollows the structure and applies a Lif e-Cy cle Assessment approach to the entire Product stage f rom raw material through manuf acturing (A1-A3)) Attachment D
58 July 11, 2022 Item 12
* Max fall height | ** Total height | *** Safety surfacing area * Max fall height | ** Total height Click to see 1:100 ratio TOP VIEW Click to see 1:100 ratio SIDE VIEW 5 / 2/23/2022 Data is subject to change without prior notice.
Dolphin
PCM103
Attachment D
59 July 11, 2022 Item 12
1050 Camino Del Mar, Del Mar, CA 92014 | 858.755.9313 | www.delmar.ca.us Tot Lot Renovation Project
Visual Exhibit
VISUAL EXHIBIT POLE INSTALLATION PLAN
The tallest part of the proposed play structure will be 11’ 1” at the location of the fireman’s pole. The remainder of the proposed play structure will be below 9’10”. The profile of the proposed play structure is shown in the graphic below.
Attachment E 60 July 11, 2022 Item 12
Tot Lot Visual Exhibit
The graphic below shows the plan view of the existing play structure with the proposed play structure overlaid. The location of the tallest proposed height at the fireman’s pole is shown (blue callout).
In order to create a visual simulation of the tallest portion of the proposed play structure, staff attached three PVC poles to the existing play structure in the locations numbered in the visual above. The tallest pole (pole 2) was installed to 11’ 1” to demonstrate the proposed “fireman’s pole” and a string was strung between the three poles at a height of 9’ 7” to show the approximate location of the guardrail/play panel located around the perimeter of the taller slide platform.
1 2
3 Attachment E 61 July 11, 2022 Item 12
Tot Lot Visual Exhibit
Attachment E 62 July 11, 2022 Item 12
Tot Lot Visual Exhibit
Other Vantage Points
Staff took photographs of the poles from public vantage points on Coast Boulevard:
Attachment E 63 July 11, 2022 Item 12
Tot Lot Visual Exhibit
Attachment E 64 July 11, 2022 Item 12
Tot Lot Visual Exhibit
Attachment E 65 July 11, 2022 Item 12
Tot Lot Visual Exhibit
Attachment E 66 July 11, 2022 Item 12
Tot Lot Visual Exhibit
Swings
The proposed swings will be approximately nine inches taller than the existing equipment; an 8’ 6” pole was held next to the existing swing structure to provide a visual of the height increase as seen in the picture below:
Attachment E 67 July 11, 2022 Item 12
Attachment F 68 July 11, 2022 Item 12
Attachment F 69 July 11, 2022 Item 12
Attachment F 70 July 11, 2022 Item 12
Attachment F 71 July 11, 2022 Item 12
Attachment F 72 July 11, 2022 Item 12
RESOLUTION NO. PC-2022-06
A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF DEL
MAR RECOMMENDING THAT THE CITY COUNCIL APPROVE
CONDITIONAL USE PERMIT CUP22-001 AND COASTAL DEVELOPMENT PERMIT CDP22-009 TO REMOVE AND REPLACE EXISTING
PLAYGROUND EQUIPMENT AND MAKE RELATED IMPROVEMENTS TO
THE RUBARIZED SURFACE AND DRAINAGE WITHIN THE PP (PUBLIC
PARKLAND) ZONE AND THE OPEN SPACE, BEACH, AND COASTAL
BLUFF OVERLAY ZONES AT POWERHOUSE PARK, DEL MAR,
CALIFORNIA
WHEREAS, the City of Del Mar is the owner of real property commonly referred to as Powerhouse Park (APNs 299-230-26-00) (the “Property”); and WHEREAS, the City of Del Mar filed an application for a Conditional Use Permit CUP22- 001 and a Coastal Development Permit CDP22-009 (the “Project”) to remove the existing playground equipment and ground surface at the Powerhouse Park Tot Lot and to install new play equipment and ground surface including new swings, a new slide and climbing structure, other smaller accessory play structures; and to improve the drainage system beneath the play surface at a children’s play area located within the PP (Public Parkland) Zone, and the Open Space, Beach, and Coastal Bluff Overlay Zones; and
WHEREAS, the project is listed among the classes of projects determined to have less than significant adverse effect on the environment and therefore, is exempt from the provisions of the California Environmental Quality Act (CEQA) pursuant to CEQA Guidelines Section 15301 Class 1- Existing Facilities and has further been determined that none of the six exceptions to the use of a categorical exemption would apply to this project (CEQA Guidelines Section 15300.2); WHEREAS, on June 14, 2022 the Planning Commission of the City of Del Mar held a public hearing on the application of CDP22-009 and CUP22-001which was duly noticed, and at which time all persons desiring to be heard were heard; and WHEREAS, evidence was submitted and considered to include without limitation:
a. Plans submitted by the applicant.
b. Written information submitted with the application.
c. Staff Report, dated June 14, 2022, which is incorporated by reference as though fully set forth herein.
d. Additional information submitted during the hearing; and NOW, THEREFORE, BE IT RESOLVED by the Planning Commission of the City of Del Mar, that a recommendation is made to the City Council to approve Conditional Use Permit CUP22-001 based on the following findings:
1. That the use for which the Conditional Use Permit is applied for is permitted within the zone in which the property is located.
Attachment G 73 July 11, 2022 Item 12
Resolution No. PC-2022-06
Project No. CUP22-001 and CDP22-009
Accessory structures for Park/Recreational Uses are allowed in the Public Parkland Zone, Open Space Overlay, Beach Overlay, and Coastal Bluff Overlay Zones.
2. That the granting of such Conditional Use Permit will not be detrimental to the public health, safety, comfort, convenience and general welfare, will not adversely affect the established character of the surrounding neighborhood, and will not be injurious to the property or improvements on such vicinity and zone in which the property is located.
Replacing the existing playground equipment with new, safety rated structures is meant to improve the public health, safety, comfort, convenience, and general welfare of those using the Tot Lot by replacing older, well-worn equipment. Further, the equipment is compatible with the park/recreational use of the lot and will not adversely affect the established character for the surrounding neighborhood. It is designed in a way that will not be injurious to the people, property, or improvements in the vicinity and zone in which the property is located.
3. That the proposed use is properly located in relation to the community as a whole and to other land uses and to transportation and service facilities in the vicinity; and further, that the use can be adequately served by such public facilities and street capacities without placing an undue burden on the streets.
The new playground equipment would replace existing equipment in an already established park playground and would not place any undue burden on public facilities.
4. That the site is of sufficient size to accommodate the proposed use and all yards, open spaces, walls and fences, parking, landscaping, and such other features as are required by this chapter or as are needed, in the opinion of the Planning Commission, or the City Council on appeal, are properly provided to be compatible and harmonious with nearby uses.
The existing park (140,500 sq. ft.) is of adequate size to accommodate the replacement playground equipment and the replacement will not result in a change to the size or use of the existing playground area..
5. That the granting of such Conditional Use Permit will not be contrary to the adopted Community Plan, including its goals, objectives, or policies, or to the objectives of any ordinance, regulation, or plan in effect to implement said Community Plan.
This project is consistent with the goals, objectives, and policies of the Community Plan.
NOW, THEREFORE, BE IT FURTHER RESOLVED by the Planning Commission of the City of Del Mar, that a recommendation is made to the City Council to approve the Coastal Development Permit CDP22-009 based on the following findings:
Attachment G 74 July 11, 2022 Item 12
Resolution No. PC-2022-06
Project No. CUP22-001 and CDP22-009
1. That the use for which the Coastal Development Permit is applied is permitted within the zone in which the property is located.
Accessory structures for Park/Recreational Uses are allowed in the Public Parkland Zone, Open Space Overlay, Beach Overlay, and Coastal Bluff Overlay Zones.
2. That the proposal meets the criteria of the applicable chapters of this Title.
The proposed project, as designed and conditioned, meets the criteria of the applicable chapters of the Del Mar Zoning Code, specifically: Chapters 30.30 (Public Parkland); 30.50 (Beach Overlay Zone); 30.55 (Coastal Bluff Overlay Zone); 30.60 (Open Space Overlay Zone); 30.61 (Public Access); 30.74 (Conditional Use Permits); and 30.75 (Coastal Development Permits). This consistency is described in detail in the following finding.
3. That the granting of such Coastal Development Permit will be in conformity with the certified City of Del Mar Local Coastal Program (LCP).
The Coastal Development Permit, as conditioned, will be in conformity with the certified City of Del Mar Local Coastal Program. The project site is located within a special overlay zone identified in the LCP, the Coastal Bluff Overlay Zone. A geotechnical assessment concluded that replacing the existing playground equipment would not adversely impact the coastal bluff. The Tot Lot would be redesigned and reconstructed in order to meet all current safety standards and to provide accessibility. The proposed play equipment would be roughly the same footprint as the existing, but the equipment will be spaced slightly different from the existing site walls and other equipment in order to allow for the required “fall zone” buffer areas surrounding the various pieces of play equipment. The existing swing sets are currently setback a minimum of 29’11” from the Coastal Bluff edge and the new swings would be located slightly further to the east at 31’3”. The City acknowledges that the proposed improvements located within 40 feet of the coastal bluff edge cannot be afforded protection in the future.
However, the proposed improvements are minor and can be removed or relocated if impacted by future erosion or bluff failure. No new grading, hardscape, or vegetation modifications are proposed as a part of this project. Further, the structure has been designed and located so as to not have adverse impacts on public access and views of the ocean.
4. That for all development proposals located seaward of the first public roadway, the proposed development is consistent with and implements the applicable requirements for provision of public access contained in this Title and in the public access and public recreation policies of Chapter 3 of the California Coastal Act.
The project is consistent with and implements the applicable requirements for provision of public access contained in the Del Mar Zoning Code and in the public access and public recreation policies of Chapter 3 of the California Coastal Act. The project is located between the first coastal roadway and the sea and, therefore, in the Coastal Commission appeals area. However, the public’s interest in gaining access to the shoreline is not affected by the development because two Attachment G 75 July 11, 2022 Item 12
Resolution No. PC-2022-06
Project No. CUP22-001 and CDP22-009
established beach access points already exist within the park and are not impeded by the proposed improvements. The pathway loop adjacent to the Tot Lot will be temporarily closed off for construction purposes for approximately three months (October-December on the current schedule) outside of high demand summer months. This portion of the path loop does not provide immediate access to one of the two beach access points at the beach and alternative paths will still be open so as to not impede access to the beach.
5. That for all development proposals involving the construction or placement of a shoreline protection device, that the proposed development is consistent with and implements the applicable requirements of the Beach Overlay Zone and Setback Seawall Zone provisions contained in this Title and is consistent with and implements the provisions of the Chapter Three Policies of California Coastal Act.
No shoreline protection devices are proposed as part of this project.
6. That the proposal is consistent with and implements the provisions of public view protection Policies IV-22 through IV-27 of the City of Del Mar LCP Land Use Plan.
The project is consistent with and implements the provisions of public view protection policies of the City of Del Mar Local Coastal Program, including those of the LCP Land Use Plan. The Park provides access to the scenic qualities of coastal resources. Due to its location and design, the project would not adversely affect any public views. The proposed single-story play structure (11 feet, 1 inch in height at the tallest point) would provide replacement playground equipment in the approximate same location as existing Tot Lot equipment in an area that will continue to provide for the public enjoyment of scenic views. The existing Tot Lot is located downslope from the public sidewalk at Coast Boulevard and is shielded by mature vegetation and existing train utilities along Coast Boulevard. The Design Review Board has reviewed this project further against the Design Review Ordinance, which assesses impacts on public scenic views and has recommended approval to the Coastal Commission.
7. That for all development proposals on sites with identified wetland resources, that the proposed development is consistent with and implements the provisions of the Lagoon Overlay Zone as contained within the City of Del Mar Local Coastal Program Implementing Ordinances and Land Use Plan.
The project site does not contain any identified wetland resource; and is not subject to the provisions of the Lagoon Overlay Zone.
AND BE IT FURTHER RESOLVED by the Planning Commission of the City of Del Mar that a recommendation be made to the City Council that CDP22-009 AND CUP22-001 be subject to the following conditions:
[Note: The conditions listed below may have gaps in numbering or lettering. These gaps are intentional.]
Attachment G 76 July 11, 2022 Item 12
Resolution No. PC-2022-06
Project No. CUP22-001 and CDP22-009
G-1 [Business License]
Prior to commencement of any work on site, all contractors and subcontractors shall obtain a valid City of Del Mar Business License. The general contractor shall be responsible for ensuring that all subcontractors obtain required Business License and shall retain copies of said permits on site for verification by City staff.
G-3 [Development authorization limited to plan set]
This permit is granted based on the plans which were presented to the Planning Commission at their June 14, 2022 hearing, and so identified by the staff of the Del Mar Planning and Community Development Department. Revisions to these plans and/or any proposals for modification shall require review and prior authorization from the appropriate entities of the City of Del Mar.
G-6 [Recycling]
All work associated with the project shall be done in conformance with the City of Del Mar’s Mandatory Recycling Ordinance (No. 590).
G-7 [Code compliance]
Approval of this application shall not waive the requirement for compliance with the provisions of the Del Mar Municipal Code or other applicable City regulations in effect at the time of Building Permit issuance, unless specifically waived in this permit authorization.
G-11 [Plan for Construction-Phase Impacts]
Prior to issuance of Building Permits or commencement of project implementation (whichever comes first), the applicant shall provide a plan for construction-phase parking and equipment/materials storage for the project. The plan must include the following:
a. Identification of an on-site material storage location; b. Identification of an on-site equipment storage location; c. Identification of at least two on-site parking space which will remain available throughout the duration of the project;
d. Location of any temporary sanitary facilities;
e. A note stating that “If on-street parking is utilized, a minimum street access clearance of 20ft. will be maintained”;
f. Map displaying any/all haul routes; and
g. Contact information (phone number and Email) for the on-site supervisor(s);
1. This information must also be posted on-site in a location which is readily visible from the public right-of-way for the duration of the project.
The plan required herein shall be subject to the review and written approval of the Planning and Community Development Director, working in consultation with Parking Enforcement and Public Works Departments. Haul routes and work and/or storage of material or equipment within a City right-of-way will require the receipt of an Encroachment Permit. The requirements mentioned above may be modified by the Planning and Community Development Director upon a Attachment G 77 July 11, 2022 Item 12
Resolution No. PC-2022-06
Project No. CUP22-001 and CDP22-009
determination that sufficient alternatives have been proposed which achieve a similar level of compliance.
G-11A In addition to the submittal of a Construction Phase Impact Plan, the applicant must place a Construction Parking Placard in all vehicles associated with the project which will be parked off-site. The placard must remain in plain view on the dashboard of the vehicle throughout the duration of the project. A Construction Parking Placard can be obtained from the City of Del Mar Planning Department.
G-13 [Permit Expiration]
This permit shall expire three years from the date of approval unless a Building Permit has been issued (if required by the DMMC) and substantial construction has been accomplished in reliance upon the permit. Pursuant to the DMMC, substantial construction is defined as: completion of a minimum of 10% of the total amount of construction authorized by the permit, based on the monetary value of construction costs including grading, site preparation and construction but specifically excluding all costs associated with the acquisition of interest in the project site and all costs associated with the preparation and processing of permits or plans.
G-16 [Compliance with City noise regulations]
The applicant and all parties involved with implementation of the project shall comply with the regulations of the DMMC with regard to construction noise. The regulations stipulate that all construction activities are limited to the following periods: between 7:00 a.m. and 7:00 p.m. / Monday through Friday and between 9:00 a.m. and 7:00 p.m. on Saturdays. Construction activities are prohibited during other hours and on Sundays and City Holidays. The City’s Noise Ordinance, Chapter 9.20 of the Del Mar Municipal Code, includes the dates of City Holidays, and can be viewed on the City’s web page (www.delmar.ca.us).
G-17 [Dig Alert]
Prior to excavation or trenching, the applicant shall call Underground Service Alert of Southern California (Dig Alert- 1-800-227-2600) for a mark out of service utilities.
G-18 [Rules for Construction-related Signage]
All construction-related signage posted at the project site shall comply with DMMC Chapter 30.84 (Signs). The pertinent sections of the Sign Chapter allow installation of a total 5.5 square feet of temporary signage on a residential property (that is cumulative of all signs posted). Such signs may be posted for a maximum of sixty (60) days in a calendar year.
The restrictions noted above do not apply to the Development Pending, Construction Noise Notice and Building Permit signs required by the City as part of the project review process.
All construction related signage, including City required signs, shall be removed prior to final approval of the project.
Attachment G 78 July 11, 2022 Item 12
Resolution No. PC-2022-06
Project No. CUP22-001 and CDP22-009
PASSED AND ADOPTED by the Planning Commission of the City of Del Mar, this 14th day of June 2022 by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
_____________________________________
Philip Posner, Chair
Del Mar Planning Commission
Del Mar, California
ATTEST:
____________________________________________
Karen Brindley
Planning and Community Development Director
Del Mar, California
Attachment G 79 July 11, 2022 Item 12
City of Del Mar
Agenda Report
________________________________________________________________________________________________________ City Council Action:
TO: Honorable Mayor and City Council Members
FROM: Sarah Krietor, Administrative Services Manager/City Clerk Via Ashley Jones, City Manager
DATE: July 11, 2022
SUBJECT: Designation of Voting Delegate and Voting Delegate Alternate(s) to the League of California Cities 2022 Annual Conference
REQUESTED ACTION/RECOMMENDATION:
It is recommended that the City Council appoint a voting delegate and delegate alternate(s) to represent the City of Del Mar at the League of California Cities 2022 Annual Conference.
DISCUSSION/ANALYSIS:
Each year, the League of California Cities holds an Annual Conference and Business Meeting at which time the League membership takes action on League resolutions. In order for the City of Del Mar to participate in the Business Meeting and vote on League resolutions, the City must appoint a voting delegate by Council action. The Council may additionally appoint up to two alternate voting delegates if so desired.
The 2022 League of California Cities Conference will take place in-person from September 7 to September 9, 2022, at the Long Beach Convention Center. The Business Meeting will take place on Friday, September 9, 2022. The cost for attendance at this year’s event is estimated to be $1,440, which includes event registration ($650) and hotel ($790).
The deadline for Del Mar to appoint a voting delegate and alternates, if so desired, is September 2, 2022. Last year, based on the status of the pandemic and conference location in Sacramento with no virtual attendance option, the City opted out of attending the annual conference.
FISCAL IMPACT:
There is no fiscal action to be taken by the City Council as part of this agenda item. There are currently sufficient funds available in the approved FY2022-23 City Council meeting/travel budget to cover the estimated $1,440 in meeting related costs.
ATTACHMENTS:
Attachment A - League of California Cities Request for Designation of Voting Delegate and Alternate(s)
1 July 11, 2022 Item 13
2 July 11, 2022 Item 13
3 July 11, 2022 Item 13
4 July 11, 2022 Item 13
City of Del Mar
Agenda Report
________________________________________________________________________________________________________ City Council Action:
TO: Honorable Mayor and City Council Members
FROM: Mayor Dwight Worden and Councilmember Dave Druker, City Council Liaisons to the Arts Advisory Committee
Via Ashley Jones, City Manager
Prepared by Beth Murray, Senior Management Analyst
DATE: July 11, 2022
SUBJECT: Consideration of a Proposal from the City Arts Advisory Committee and Del Mar Foundation for Placement of Public Art at the Del Mar Civic Center REQUESTED ACTION/RECOMMENDATION:
The City Council liaisons, Mayor Worden and Councilmember Druker, to the Arts Advisory Committee request that the City Council approve in concept, the potential display of artwork at the Del Mar Civic Center and authorize the Arts Advisory Committee (AAC) to work on a proposal for the acquisition and installation of public art outdoors at the Civic Center, consistent with the City’s adopted Public Art Policy (Attachment A).
BACKGROUND:
On May 15, 2017, the City Council adopted Resolution 2017-32, creating the Arts Advisory Committee and adopting City Council Policy 113- Public Art Policy. The Public Art Policy identifies the inclusion of art on public property (i.e., City Hall, Camino Del Mar, parks and greenspace) as part of the original concept of public art in Del Mar. The policy states, “The proposed course of action is to start slowly—displaying art on public property, and thereby demonstrating success—and at a later time consider art in conjunction with private development.”
The AAC previously developed an Art Approval Process, detailing the process and timeline for approval of art for public display. The process includes review by City departments, Design Review Board (DRB), and advisory committees, and includes a public review and comment period before being presented to City Council for consideration and approval. A copy of the process flowchart can be found on the City’s website at: https://www.delmar.ca.us/DocumentCenter/View/4473/Art-Approval-ProcessPDF?bidId=.
As another step toward the display of art on public property, the AAC developed an Arts Opportunity Map, published in 2019, that identifies approximately 40 specific locations 1 July 11, 2022 Item 14
City Council Agenda Report
Civic Center Outdoor Art Proposal
July 11, 2022
throughout the City potentially suitable for public art, including four specific locations at the Civic Center. The map, with annotated locations, is on the City’s website and can be found here: https://www.delmar.ca.us/750/Public-Art-Map As additional background, in May 2021, the AAC finalized a Master Plan for a Temporary Outdoor Sculpture Program, and received Council approval for Phase 1 of that Program, with funding and management support from the Del Mar Foundation (DMF). This program currently displays sculptures on public property at five of the mapped sites along Camino Del Mar and 15th Street for a 23-month period, ending in September 2023. This program has demonstrated its success, with widespread public interest and support and with little to no cost to the city.
The AAC is now seeking City Council authorization to begin work on a proposal to identify and acquire public art for permanent display at the Del Mar Civic Center.
DISCUSSION:
The AAC’s goal is to acquire and permanently install signature, high-quality artwork at the Del Mar Civic Center, consistent with the award-winning architecture of the Center and the intended uses of this vibrant public space.
In furtherance of this goal, the AAC, working with qualified consultants as appropriate, would evaluate technical issues (e.g., weight and wind shear, safety and liability issues, installation, maintenance, view impacts, and more); identify potential artworks suitable for acquisition and display on a site-specific basis; and plan a robust review process consistent with City requirements, including the previously-approved Art Approval Policy and the Public Art Policy, that includes review by the DRB.
It should be noted that the Public Art Policy includes detailed guidance with respect to eligible and ineligible forms of public art, criteria for evaluating whether an artwork meets community standards, and criteria for approval of a proposed artwork, including artistic merit, site-specific considerations (structural limitations, weight limitations, etc.), insurance and maintenance issues, and more.
As they did with the recent Temporary Outdoor Sculpture Program, the Del Mar Foundation (DMF) are proposing to provide funding for consultants and administrative/management support for AAC’s work in pursuit of artwork for display at the Civic Center. As a result, impact on City funds and staff time would be minimal, and work that requires more significant staff time would proceed only upon City Manager and/or City Council approval. For the Temporary Outdoor Sculpture Program, the early retention of a consultant by the DMF was very helpful to the development and implementation of the program, and key to its success.
If the Council authorizes the AAC to move forward as proposed, the AAC, Council liaisons to the AAC, and DMF would work collaboratively to undertake the following:
2 July 11, 2022 Item 14
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Civic Center Outdoor Art Proposal
July 11, 2022
Select a consultant with the expertise to provide technical and artistic expertise and analysis to advance this proposal;
Work with the consultant to identify potential locations for placement of art at the Civic Center, including an evaluation of technical limitations or considerations, view impacts, architectural compatibility, and compatibility with public uses of the Civic Center;
Identify candidate artworks for consideration for acquisition; and Develop a robust process for City and public review of the candidate artwork(s), consistent with the provisions of the City’s Public Art Policy.
FISCAL IMPACT:
There is no fiscal action to be taken by the City Council related to this agenda item. Outside of some minimal staff time, there is little anticipated impact to City resources resulting from this proposal. The Del Mar Foundation is proposing to cover all costs associated with the AAC’s proposal.
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. Any project developed as a result of the City Council’s action that requires the City or the City Council’s discretionary approval resulting in a physical change to the environment will be analyzed in accordance with CEQA prior to such approval. The current City Council action in no way limits the exercise that discretion.
NEXUS TO CITY COUNCIL GOALS AND PRIORITIES:
This item is not currently on the goals and priorities list for FY 2022-2023 and is being brought to the City Council for consideration to allocate staff time and resources under the procedure outlined in City Council Policy 204-Advisory Committee Work Plans.
ATTACHMENTS:
Attachment A – City Council Policy 113- Public Art Policy 3 July 11, 2022 Item 14
Updated 7/26/17 Page 1
City of Del Mar
Public Art Program
The Del Mar Public Art Program seeks to ensure the
highest quality of design, where public art has a constant presence in our community.
ATTACHMENT A
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CITY COUNCIL POLICY BOOK
113 PUBLIC ART POLICY
DATE REVISED: 5-15-2017
BY RESOLUTION: 2017-32
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SCOPE:
The original concept of public art in Del Mar included art on public property (i.e. City Hall, Camino del Mar, parks and greenspace), and regulation of public art on private property and as a part of private development. The proposed course of action is to start slowly – displaying art on public property, and thereby demonstrating success – and at a later time consider art in conjunction with private development.
ACKNOWLEDGEMENTS:
These proposed guidelines are based on the very thorough work of the Del Mar Village Association (DMVA) Art Committee who researched the art policies of other successful programs in the country.
PROCESS:
This policy is the byproduct of grassroots community interest. The following steps are critical to successful implementation:
1. Concept and draft proposed by DMVA and interested community members
2. Draft discussed and modified by the City Council Ad-Hoc Committee
3. Draft reviewed by key community stakeholders
4. Draft reviewed and approved by the City Council, and implemented by City staff and the Art Advisory Committee
I. PROGRAM INTENT
It is the intent of the City of Del Mar to create a Del Mar Public Art Program (hereinafter “the Program”) with guidelines specifically designed to promote the arts in public places in the Commercial Zones (including the Visitor, Central, North, and Beach Commercial Zones hereinafter Commercial Zones), Public Facility Zones (including the City Hall and Del Mar Shores properties) and public parks in Del Mar. It is intended that art will serve as cultural enrichment to the residents of the City and the community life along with enhancing the economic vitality of the City.
The Program seeks to ensure the highest quality of design where public art has a constant presence. The City wishes to advance Del Mar’s reputation as a unique community by expanding 5 July 11, 2022 Item 14
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residents' appreciation of art, reflecting the City's aspiration to improve the quality of life, enhancing public spaces for all residents and visitors and becoming a city recognized for innovation and creativity. The Program works to integrate art and the ideas of artists into the development of public settings by collaborating with local and nationally known artists to include the values and history of our community into their work.
The Program will be implemented as a pilot program to last five (5) years from the date of adoption by City Council. The first two years will be focused on art donated to the City or purchased with donated funds. After the two year period, the Policy will be expanded to include pieces purchased by the City. At the end of the five-year pilot program, the City Council should evaluate the Program and determine if the program should be continued or expanded.
II. PROGRAM GOALS
The City of Del Mar aims to develop a Program that represents a wide range of artistic styles and disciplines through a process that encourages community dialogue and involvement. All of these actions will help identify Del Mar as a community committed to art and culture. The goals of the Program include:
To acquire and commission quality and diverse works of art for community enrichment that is site specific and environmentally responsive. o Five works acquired in three years
To support and involve artists in developing, collaborating and implementing Del Mar's public spaces and community development projects. o 80% of Del Mar artists rate involvement high or very high on survey To encourage collaboration between artists and architects, landscape architects and civil engineers for public projects.
o 60% of Del Mar artists, architects and engineers see improvement in collaboration To encourage an environment for artistic creativity in Del Mar and promote Del Mar as a leader in arts, culture and public art.
o 70% of visitors rate Del Mar high or very high as leader in arts, culture and public art.
To increase awareness of Del Mar's art in public places as an integral component for attracting business and visitors to Del Mar.
o 80% of visitors aware of Del Mar’s Public Art Program 6 July 11, 2022 Item 14
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III. ELIGIBLE FORMS OF PUBLIC ART
The City of Del Mar wishes to encourage the broadest interpretation of art and the diverse venues used by artists. Art may include all forms of original creations of visual art, which may be temporary as well as permanent. The media and materials eligible to be used by artists include, but are not limited to, the following:
Sculpture: Free standing, wall supported or suspended; kinetic, electronic, etc., in any material or combination of durable materials.
Murals or portable paintings: In any material or variety of materials, with or without collage or the addition of non-traditional materials and means. Earthworks, fiber works, neon, glass, mosaics, photographs, prints, calligraphy, any combination of forms of media including sound film, holographic and video systems, hybrids of any media and new genres.
Standardized fixtures such as gates, streetlights, etc., may be contracted to artists for unique or limited editions, provided the work is designed specifically for the city as public art.
Architectural elements designed and executed by visual artists in collaboration with an architect or landscape architect; which may be incorporated into, upon or adjacent to publicly funded structures or projects such as streetscapes, walls, and other development efforts.
Design elements incorporated into a Capital Improvement Project, designed by an artist for fabrication and execution by the project contractor. Musical, sound and visual effects that highlight or accentuate a piece of art.
IV. INELIGIBLE FORMS OF PUBLIC ART
The following items are identified as ineligible for inclusion in the Program. (These items may be funded through other programs or departments within the city, but they do not fall within the parameters of public art):
Directional elements such as super graphics, signage or color-coding except where these elements are integral parts of the original work of art. “Art objects” which are mass-produced as a standard design such as playground equipment, fountains or statuary objects.
V. COMMUNITY STANDARDS
All artwork considered by the Art Committee for inclusion in the Program shall be reviewed in the context of the contemporary, community standards of the City of Del Mar. No art will be selected that is obscene as determined by the aforementioned standards in the sole discretion of 7 July 11, 2022 Item 14
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the Art Committee and the City Council. Further, it shall be the policy of the City of Del Mar that once artwork is selected by the Art Committee (after an opportunity for the public to comment) and approved by the City Council (which is a further opportunity for the public to comment), said artwork will be displayed by the City of Del Mar for the time period set forth in an agreement with the artist. No artwork will be removed from display before expiration of the agreed time based upon its content. All art will be displayed pursuant to a written agreement between the City and the artist/owner. All such agreements will contain waivers from the artist of the artists rights under 17 U.S.C. 106A, 17 U.S.C. 113(d) and California Civil Code Section 987. None of the foregoing will apply if the City of Del Mar is the owner of the work of art.
The Art Committee shall use the following criteria for determining if a work of art complies with community standards:
1. Is the art work appropriate for the site at which it is intended to be displayed? a. Does the work fit with the architecture of the site? b. Does the theme of the art complement the character of the site and the City?
2. Is the art work secular in nature?
a. Does the work fit with religious diversity in the City? b. Does the work neither advance nor inhibit religion?
c. Does the work avoid excessive entanglement of the City in religious matters?
3. Does the art work fit with diversity of opinion within the City? a. Is the work inclusive of all citizens of the City?
b. Does the work allow differing viewpoints and opinions? c. Does the work promote a positive image of the community and its citizens?
4. Is the art work obscene?
a. Does the work avoid appealing to the prurient or sexual interest? b. Is this a work that is suitable for viewing by children? c. Would a large number of citizens find the work offensive because of sexual content or sexual suggestiveness?
All art submitted to the City for consideration for display on public property shall be initially evaluated by the Art Committee using the above criteria. If, in the sole discretion of the Art Committee, a work of art does not meet the initial criteria as set forth above, the work of art shall no longer be considered by the Art Committee. If any artist feels that the Art Committee has not appropriately applied the above criteria, the artist may seek review by the City Council.
Public art owned by the City is a form of government speech from the City to the public which is protected by the First Amendment.
The City of Del Mar has the right to monitor and govern such speech in its sole discretion. 8 July 11, 2022 Item 14
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VI. ART ADVISORY COMMITTEE
The Art Advisory Committee (AAC) plays an integral role in the implementation of the Program. The AAC serves in an advisory capacity to City Council as the review body for all public arts projects. The AAC advises the City of Del Mar on matters pertaining to public art and acts as the selection committee for public art projects. The AAC may be convened by the City of Del Mar on a project-specific basis, or to serve on multiple public art projects.
1. The AAC is composed of seven (7) members appointed by the City Council. AAC members serve at the will of the City Council and may be removed from office by the City Council at any time, without cause.
2. The term of office for AAC members shall be for a three (3) year period commencing on the actual date of appointment and ending on June 30 of the 3rd year thereafter.
Members’ terms shall be staggered, so that annually, two (2) or three (3) of the seven (7) members are subject to reappointment.
3. The members of the AAC will be selected on the basis of each member’s specific expertise relating to public art.
a. Members shall be Del Mar residents, or individuals with a business located in one of the Del Mar Commercial Zones, and to whom one or more of the following apply:
i. Knowledgeable about contemporary art or related fields; ii. Willing to represent the local community’s interest in a public art project; iii. Willing to become familiar with the public art process; iv. Willing to be available for multiple or follow-up meetings if necessary. b. The ideal make-up of the AAC will be a balanced membership consisting of four (4) residents (preference given to those with art backgrounds/experience), one (1) business owner (preference given to art-related business), One (1) DMVA representative, one (1) Del Mar Foundation representative. c. Each member appointed to the AAC will be required to certify in writing that s/he has read the Public Art Policy and understands it.
4. The AAC shall appoint a chairperson and shall designate ex officio advisers to assist in the AAC functions without vote.
5. Non-voting ex-officio advisers may include:
a. A visual artist;
b. An architect or urban designer; and
c. An art professional such as a curator, fine arts collector, art critic or art educator.
6. The AAC will follow all guidelines for meetings specified in the Brown Act, including agendas, meeting notices, and public testimony.
7. The AAC shall not conduct any business unless a quorum is present. A quorum shall be a majority of the then-available seats on the AAC.
8. All selections and siting of public art approved by the AAC shall be subject to approval by the City Council.
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VII. REVIEW OF PUBLIC ART PROPOSALS
In general, acceptance and placement of art in Del Mar should be in accordance with these guidelines, current or historic use, community plans, and City Council goals. The location and design of the art should be consistent with the character and design intentions of the proposed site. The quality, scale and character of the art should be at a level commensurate with the particular setting.
The AAC may make requests for art proposals using the following methods:
1. Open Competition
2. Limited Invitation (a few artists)
3. Invitation (one artist)
4. Direct Purchase
All proposals for the display of public art on public property must be submitted to the AAC. The AAC shall consider the following criteria when reviewing art for permanent or temporary placement in the public spaces in Del Mar. The City Council shall utilize the same criteria when considering whether to accept or reject an AAC recommendation. The artistic quality, uniqueness, style and nature, aesthetic and/or historical significance of the art.
The art’s physical condition and whether the art is of exhibition quality. Whether the City already owns sufficient examples or better examples of this type of art by a particular artist in a particular style.
Whether the signage for art on public property conforms to the City of Del Mar plaque standards to include the artist's name, title and date of work, and where appropriate, a dedication. The name of the donor or lender may be part of the installation. [Note: City of Del Mar Plaque Standards will need to be developed] Whether sufficient funds are available for insurance and maintenance Appropriateness of the site and location (working well within the scale and nature of the site).
Whether there are any public safety or accessibility issues. Whether the art is permanent or temporary.
Whether the art is thematically appropriate for the context of the site. The AAC will review artwork for its context and artistic expression, and assess for local thematic significance, such as Del Mar history, natural environment (beach, lagoons, bluffs, canyons, Torrey Pines, etc.), and/or fairgrounds (horses, agriculture, etc.). Whether the art is appropriate for the general public based upon contemporary community standards (in the case of obscenity) as determined at the sole discretion of the AAC and the City Council at the time of consideration pursuant to the criteria set forth in Section V above.
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During the review process, the AAC can request modifications to proposals before further consideration.
VIII. SITE SELECTION FOR PUBLIC ART
The AAC shall carefully consider all new proposals for public art as to the location where the art will be displayed. Sites may include areas within the Commercial Zones and public property.
Particular attention will be given to displaying art along the Camino Del Mar, Public Facilities (City Hall) and parks.
In addition to a location's aesthetic possibilities, the following factors shall be considered when deciding the site and placement or presentation of the art. Lighting and visibility
Public safety
Future development plans for the area
Landscape design
Availability of utilities
Existing art within the vicinity
Environmental concerns/impact
Public accessibility to the work
Social/community context
Significance to the proposed site
Site appropriateness (fitting with the scale & nature of the proposed site) Traffic patterns (interior and exterior)
Relationship to existing planned architectural and natural features Interior or exterior placement.
Appropriateness of materials in relationship to the overall project. This includes consideration such as durability and resistance to vandalism. Historical, environmental and cultural factors of the project area. Environmental factors such as land forms, geographic features or predominate or preexisting structures or landmarks.
All sites selected for public art must be on public property and accessible to the public. The Parks & Recreation Committee may be engaged to provide recommendations for siting of artwork in City parks and greenspaces.
The City shall, where feasible and at the discretion of the City Council, include public art as part of Capital Improvement Projects funded by the City.
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IX. PERMANENT SITING OF PUBLIC ART
The City will use the following guidelines when acquiring public art:
1. Most public art is temporary. Whether the art work is installed at a site for 4 months, 4 years or 40 years, it is temporary. It can be moved or relocated by the City, based on the recommendations of the Art Advisory Committee and pursuant to agreement with the artist if the art is not owned by the City. Ownership of a temporary piece of art may or may not be retained by the City. Notwithstanding the foregoing, temporary works of art may be removed, pursuant to agreement with the artist, at the end of the agreed upon display time and pursuant to any other terms regarding removal in the agreement. The City will not remove works of art based on content after a work of art has been considered and selected for display by the Advisory Committee and the City Council.
Any work of art owned by the City may be moved, removed or decommissioned at the sole discretion of the City.
2. Art located on permanent structures such as buildings, walls and sidewalks will be owned by the City. The City reserves the right to remove the art piece if the permanent structure must be changed or demolished for public improvements.
X. MAINTENANCE OF PUBLIC ART
Art located on public property shall become the responsibility of the City of Del Mar, except in cases of any separate agreements with loaned or temporary-exhibition artists. Unless otherwise specifically agreed upon in advance, the City shall provide all maintenance necessary to preserve the work in good condition.
The City will pay for lighting, cleaning and security of public art.
Stolen or vandalized art shall be replaced or repaired in a manner that conforms to the originally approved art. In the event of repair, the original artist(s) shall be notified and given the opportunity to perform the repair work.
The artist or sponsoring organization will pay for restoring the site to original condition when the artwork is removed.
Additional maintenance details will be specified in artist and/or donor agreements on a case by case basis.
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XI. REMOVAL OF PUBLIC ART
The City Council, acting in accordance with City policies and procedures, can approve and implement the disposal/removal of a work of art from the City of Del Mar. The City of Del Mar retains the right to convey art owned by the City to another site or to storage or for conservation. The City may also elect to remove the art from the inventory of the City collection by sale or other appropriate means, including discard. If the City decides to remove art from its inventory, then the procedures outlined in this section must be followed before removal can occur.
Notwithstanding any other provision in the Program, if, in the judgment of a majority of the City Council an art piece is deemed to be detrimental to the public good due to a deteriorated condition, it may be removed immediately from public display. Works of art on display by agreement with an artist/owner will be removed pursuant to the terms of such agreement or when the agreement terminates unless the display period is extended pursuant to agreement of the parties.
City staff will administer the removal of any art with a value of less than $1,500. City Council approval must be obtained for any work with a value of more than $1,500. City Council will consult with the AAC before deciding to approve a removal of public art. Art removal may be approved if the art meets at least one of the following criteria:
1. The City cannot properly maintain or store the art.
2. The art medium (e.g., prints, sculptures, multiples) is duplicative of works already in the collection.
3. The City identifies a work of art as a copy or imitation, a fake or forgery, without significant value.
4. The art requires restoration in gross excess of its aesthetic value or the art is in such a deteriorated state that restoration would be unfeasible.
5. The art has been on display for a period greater than outlined in the original artist or donor agreement, there is no new agreement for continuing display of the art, and the AAC recommends replacing it with a new piece of art.
In the event of a permanent removal from public view and subsequent to approval by City Council, City staff shall make every reasonable effort to locate the artist or donor/heir advising them in writing of the City's intention to permanently remove the art. Every effort shall be made to honor the wishes of the artist or donors/heirs concerning disposition of the art after its permanent removal. Written concurrence of the artist or donor/heir shall be solicited but not required for removal.
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CITY OF DEL MAR
CITY COUNCIL POLICY BOOK
113 PUBLIC ART POLICY
DATE REVISED: 5-15-2017
BY RESOLUTION: 2017-32
PAGES: 10 OF 12
The artist/donor shall be given the right of first refusal to reacquire the work at fair market value subject to approval by the City Council. The cost of removal of the work may be considered by the City Council in determining the fair market value of the work.
If the City sells a work of fine art, as that term is defined in California Civil Code Section 986, the City shall comply with the payment of royalties to the original artist pursuant to the terms set forth in California Civil Code Section 986 unless the artist waives the right to receive said royalty.
All revenue generated from art sales shall be deposited in the City of Del Mar Public Art Program Reserve Fund.
If authorization to remove a work of art is approved by the City Council, every attempt will be made to replace the original piece with art of comparable value. Said value will be determined through a "qualified appraisal" such as the Art Advisory Panel (used by the IRS) to substantiate the value or by the original building valuation, or approved budget for the prior art, plus an inflation factor for construction and material costs based on the Engineering News Record.
XII. FUNDING FOR PUBLIC ART
In order to sustain annual funding for the Program, the following mechanisms/options may be considered. A combination of funding options enables the City to coordinate a consistent and enriching Program. Reliable funding for art may be provided by using a variety of sources described below. The funds may be allocated to the City of Del Mar Public Art Program Reserve Fund (hereafter “Reserve Fund”) to cover short-term and long-term capital, operations, and maintenance costs.
1. General Fund Appropriation
Funds may be appropriated by the City Council during the budget process or at mid-year budget review. The AAC may recommend an annual budget allocation, however, final appropriation will be set by the City Council.
2. Sponsorships/Fundraising and Donations
Sponsorships, donations, and fundraising efforts are an integral aspect to public art throughout the world. These monies contributed for public art can be designated for a specific public art project location or pooled with other unrestricted contributions in the Reserve Fund to be allocated as determined by the City Council. Contributors can remain anonymous or be recognized appropriately depending upon the use of their donation for visual, music or the performing arts.
3. Consignment Art
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CITY OF DEL MAR
CITY COUNCIL POLICY BOOK
113 PUBLIC ART POLICY
DATE REVISED: 5-15-2017
BY RESOLUTION: 2017-32
PAGES: 11 OF 12
Another means to provide public art and funding for the Program is by consignment. This allows an artist to display their art for purchase at a public location. An agreement between the City and the artist, in accordance with this policy, will be negotiated to accommodate this arrangement, including installation, maintenance and removal/relocation after the art is sold or the designated time period has elapsed. A minimum display period of six (6) months is required with time extensions of up to two (2) years may be granted by the AAC. Additional public display time exceeding the two (2) year maximum must be approved by City Council.
a. Consignment Art must go through the AAC selection process, and would be offered for sale with a discrete sign.
b. Upon sale of the consignment art, the purchase transaction will be conducted by the City's Finance Department and a twenty five percent (25%) consignment fee will be withheld and placed in the Reserve Fund.
c. The remaining proceeds from the art sale will be sent to the artist by the Finance Department within 30 days after the sale transaction.
4. Public/Private Partnerships
Cooperation among the City, artists, nonprofit organizations, cultural organizations, other agencies, and the private sector is essential to ensure a healthy arts environment. The City's primary role is one of "assistance or exposure to" rather than "responsibility for" the provision of public art. With this in mind, it is recommended that collaboration with private or corporate sponsors/partners be encouraged for community benefit. These joint activities, temporary exhibitions, or more permanent public art, can/will include negotiated fees that will be placed in the Reserve Fund.
5. Grants
Grants and/or matching grants should be sought from national, state and local foundations, arts agencies and other organizations to promote and guarantee a thriving Program.
XIII. AUDITING OF PUBLIC ART FUNDS
The City requires annual audits of its finances. A report of the audit is prepared by the auditor each year. The City shall request that the auditor specifically address the Reserve Fund as part of the annual audit and include a section in the audit reporting on the Reserve Fund. The auditor’s report will be given to the Art Advisory Committee, the City Council and the public each year. 15 July 11, 2022 Item 14
CITY OF DEL MAR
CITY COUNCIL POLICY BOOK
113 PUBLIC ART POLICY
DATE REVISED: 5-15-2017
BY RESOLUTION: 2017-32
PAGES: 12 OF 12
XIV. CHILDREN’S ART
It is the intent of the City’s Program that children’s art be on display in our community at least one time per year.
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