Table of Contents
2022-7-11 Regular Meeting Agenda
Item 2- Minutes
Item 3- List of Demands
Item 5 - Adam Kaye Agreement Amendment
Item 6 - DMVA Economic Development Agreement
Item 7- AB361 Remote Meetings
Item 8 - Drought Ordinance and Resolution
Item 9 - SAC Appointment
Item 10- Agreement AsNeeded Affordable Housing
Item 11- 941 CDM Agenda Report
Item 12-Tot Lot Permits and Equipment
Item 13- Voting Delegates Cal Cities Annual Conference
Item 14 - AAC Civic Center Sculpture Proposal
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Del Mar City Council Meeting Agenda
VIA TELECONFERENCE ONLY
1050 Camino del Mar, Del Mar, California
1050 Camino del Mar, Del Mar, CA 92014 www.delmar.ca.us Civility Works: The Del Mar Code of Civil Discourse: Together we will promote inclusion; listen to understand; show respect; be clear and fair; and focus on the issue.
Remote Regular Meeting
VIA TELECONFERENCE ONLY
Monday, July 11, 2022 at 4:30 PM
In the interest of public health, and consistent with the provisions of Assembly Bill 361 (AB 361) and related resolutions adopted by the Del Mar City Council, the City of Del Mar is temporarily taking actions to mitigate the COVID-19 pandemic by holding City Council Meetings electronically or by teleconference. This is not an in-person meeting.
Public Participation/Comment
Members of the public can participate in the meeting by either submitting a written red dot comment via email to
[email protected] or by speaking live using the Zoom link and/or dial-in information provided below. The deadline to submit written comments is 12 p.m. on the day of the meeting and the subject line of your email should clearly state the agenda item you are commenting on. Those wishing to comment live should join the Zoom meeting when the item(s) they wish to speak on is announced or at the meeting start time for items not on the agenda.
Zoom Link: https://us02web.zoom.us/j/84790910014
Phone: (669) 900-6833
Meeting ID: 847 9091 0014
While registration is not required, staff recommends members of the public submit an optional tele-comment request form (www.delmar.ca.us/telecomment) to assist with speaker
management during the meeting. For more information please visit: www.delmar.ca.us/publiccomment.
Viewing the Meeting and Access to Agenda Materials
Members of the public can watch the meeting live on the City’s website at: http://delmar.12milesout.com/Video/Live and on Cable TV Spectrum Ch. 24, AT&T Ch. 99 starting at 4:30 PM.
Agenda materials and communications from the public on agenda items, “Red Dots”, are available on the City’s website: http://www.delmar.ca.us/AgendaCenter and a hard copy of the agenda materials are available at City Hall and the Del Mar Library during their business hours.
Special Needs: In compliance with the Americans with Disabilities Act, if you need special assistance to participate remotely in this meeting, please contact the Administrative Services Department via email at [email protected] or by calling (858) 755-9313, preferably at least 48 hours in advance of the meeting if possible.
Dwight Worden
Mayor
Tracy Martinez
Deputy Mayor
Dave Druker
Council Member
Terry Gaasterland
Council Member
Dan Quirk
Council Member
Ashley Jones
City Manager
Leslie E. Devaney
City Attorney
Sarah Krietor
Administrative Services
Manager/City Clerk
Del Mar City Council Regular Meeting July 11, 2022
Agenda Page 2
1050 Camino del Mar, Del Mar, CA 92014 www.delmar.ca.us I. CALL TO ORDER/ROLL CALL
II. CITY ATTORNEY CLOSED SESSION REPORT
III. PLEDGE OF ALLEGIANCE
IV. PUBLIC ORAL COMMUNICATIONS
Public oral communications will take place shortly after the start of the meeting. Those wishing to comment on any matter not on the agenda may join the meeting at 4:30 PM using the Zoom link and dial-in information: https://us02web.zoom.us/j/84790910014; Phone: (669) 900-6833; Meeting ID: 847 9091 0014.
V. CITY COUNCIL COMMENTS
VI. COMMUNITY ANNOUNCEMENTS
VII. CITY MANAGER’S REPORT
VIII. PRESENTATIONS
1. Presentation from Mel Katz, Del Mar Representative to the San Diego County Water Authority
Recommended Action: Receive the presentation.
Reference: Clerk’s File No. 1506-3
IX. CONSENT CALENDAR
All items listed on the Consent Calendar are considered to be routine and will be acted upon with one motion. There will be no separate discussion of these items unless a member of the City Council, staff, or the public so requests, in which event, the item will be considered separately.
2. Approval of Minutes: June 13, 2022 Special Meeting, June 20, 2022 Regular and Special Meeting
Recommended Action: Approve Minutes.
Reference: Clerk’s Minutes Book
3. Ratification of List of Demands, dated July 11, 2022 Recommended Action: Ratify the List of Demands.
Reference: Clerk’s File No. 201-3
Del Mar City Council Regular Meeting July 11, 2022
Agenda Page 3
1050 Camino del Mar, Del Mar, CA 92014 www.delmar.ca.us
4. Waiver of Reading of Ordinances on Agenda
Recommended Action: Waive Reading of Ordinances.
Reference: Clerk’s File No. 401-4
5. Approval of a Fourth Amendment to the Agreement with Adam Kaye for AsNeeded Public Information, Communication, and Outreach Services Recommended Action: Staff recommends that the City Council approve a Fourth Amendment to the Agreement with Adam Kaye for as-needed public information, communication and outreach services (Attachment A) through June 30, 2023, and authorize the City Manager to execute the Fourth Amendment.
Reference: Clerk’s File No. 406-1
6. Agreement with the Del Mar Village Association (DMVA) for Economic Development Services for Fiscal Year 2022-2023
Recommended Action: Staff recommends that the City Council approve an Agreement with the DMVA for FY2022-23 Economic Development Services (Attachment A) totaling $50,000, and authorize the City Manager to execute the agreement.
Reference: Clerk’s File No. 406-1; 1202-16
7. Continuation of Remote Public Meetings in Compliance with Government Code Section 54953 (Assembly Bill 361)
Recommended Action: Staff recommends that the City Council adopt a Resolution (Attachment A) making the finding required by Government Code 54953 related to Assembly Bill 361 (AB 361) to continue with remote public meetings for the next thirty (30) days during the local emergency declared in response to the COVID-19 global pandemic.
Reference: Clerk’s File No. 4017
8. Second Reading and Adoption of an Ordinance Amending Sections
21.70.110 and 21.70.120 of the Del Mar Municipal Code to Revise Emergency Water Management Requirements for Drought Watch Conditions and Resolution Reaffirming the City’s Intent to Remain in Stage 1 Drought Watch Condition
Recommended Action: Staff recommends the City Council: 1) Adopt an Ordinance (Attachment A) amending the Del Mar Municipal Code (DMMC) Section 21.70.110 and Section 21.70.120 to revise water consumer demand reduction measures in accordance with recent State regulations; and 2) Adopt a Del Mar City Council Regular Meeting July 11, 2022
Agenda Page 4
1050 Camino del Mar, Del Mar, CA 92014 www.delmar.ca.us Resolution Reaffirming the City’s intent to remain in Stage 1 Drought Watch Condition.
Reference: Clerk’s File No. 401-4; 401-9
9. Sustainability Advisory Committee Appointment
Recommended Action: The City Council Liaisons to the Sustainability Advisory Committee (SAC) recommend that the City Council appoint Sean McDowell to the SAC as a voting member to serve a full three-year term effective July 11, 2022 and ending on July 31, 2025.
Reference: Clerk’s File No. 401-5
10. Approval of Agreement for As-Needed Affordable Housing Consulting Services
Recommended Action: Staff recommends that the City Council: 1) Approve an as-needed agreement with Whitaker Real Estate Services (Attachment A); and 2) Authorize the City Manager to execute the agreement.
Reference: Clerk’s File No. 303-1; 406-1
X. PUBLIC HEARINGS
11. Continued from June 20, 2022: Introduction of an Ordinance Approving a Development Agreement (DA 22-001) and an Associated Regulatory Housing Agreement for a Mixed-Use Commercial and Residential Development Located at 941 Camino del Mar (APNs: 300-221-32 & 33)(“Property”).
Recommended Action: That the City Council introduce the proposed Ordinance approving Development Agreement DA22-001 (Attachment A) and an associated Regulatory Housing Agreement for 941 Camino Del Mar (Exhibit C to Attachment A).
Reference: Clerk’s File No. 401-4; 406-1
12. 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
Recommended Action: 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 Del Mar City Council Regular Meeting July 11, 2022
Agenda Page 5
1050 Camino del Mar, Del Mar, CA 92014 www.delmar.ca.us via a cooperative purchase agreement with Omnia Partners for a not-to-exceed amount of $102,580.
Reference: Clerk’s File No. 301-4; 301-18; 1401-2
XI. COUNCIL MEETING RECESS
XII. CITY COUNCIL OTHER BUSINESS
13. Designation of Voting Delegate and Voting Delegate Alternate(s) to the League of California Cities 2022 Annual Conference
Recommended Action: 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.
Reference: Clerk’s File No. 1506-2
14. 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 Recommended Action: 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).
Reference: Clerk’s File No. 1202-5
XIII. REGIONAL ORGANIZATION REPORTS
A Councilmember assigned as a liaison to a regional organization may make a written or oral report. State law precludes the Council from commenting on, discussing, or acting on a report unless the item of business within the report is described in the agenda.
A. 22nd District Agricultural Association Community Relations Committee (Gaasterland/Martinez)
B. Clean Energy Alliance JPA (CEA) Board of Directors (Druker/Worden) C. CSA-17 Ambulance District Advisory Board (Martinez/Druker) D. Fire Governance Board, Solana Beach/Del Mar/Encinitas (Druker/Martinez) E. League of California Cities – San Diego Chapter (Worden/Martinez) F. North County Transit District (NCTD) (Quirk/Gaasterland/Druker) G. Regional Solid Waste Association (Worden/Quirk)
H. San Diego Association of Governments Board (SANDAG)
(Gaasterland/Druker/Quirk)
I. SANDAG Borders Committee (Druker)
J. SANDAG Regional Planning Committee (Gaasterland)
Del Mar City Council Regular Meeting July 11, 2022
Agenda Page 6
1050 Camino del Mar, Del Mar, CA 92014 www.delmar.ca.us K. SANDAG Shoreline Preservation Working Group (Worden/Gaasterland) L. San Diego Metropolitan Wastewater Commission/JPA (Quirk/Bride) M. San Dieguito River Valley Regional Open Space Park JPA –Executive Committee (Worden/Quirk)
N. Other Regional Organization Reports
XIV. COUNCIL COMMITTEES/SUBCOMMITTEES/COMMUNITY ORG REPORTS A Councilmember assigned as a liaison to a City Committee, Council Subcommittee OR Community Organization may make a written or oral report. State law precludes the Council from commenting on, discussing, or acting on a report, unless the item of business within the report is described in this agenda.
A. Ad-Hoc Referendum Subcommittee (Gaasterland/Druker)
B. Arts Advisory Committee (Druker/Worden)
C. Clean Water Rate Project (Druker, Quirk)
D. Del Mar Community Connections (Martinez/Quirk)
E. Del Mar Village Association (Druker/Quirk)
F. Finance Committee (Gaasterland/Quirk)
G. Housing Subcommittee (Gaasterland/Martinez)
H. Human Resources Subcommittee (Druker/Worden)
I. Legislative Subcommittee (Gaasterland/Druker)
J. Long-Term Rail Relocation Subcommittee (Gaasterland/Druker) K. Measure Q Citizen Oversight Committee (Druker/Quirk) L. Parks and Recreation Committee (Druker/Worden)
M. Planning Process Subcommittee (Druker/Gaasterland)
N. Safe Rail Crossing and Bluff Stabilization Subcommittee (Gaasterland/Druker) O. Lagoon Committee (Quirk/Worden)
P. Sea-Level Rise Adaptation Plan Implementation Subcommittee (Gaasterland/Martinez)
Q. Shores Advisory Committee (Gaasterland/Martinez)
R. Solid Waste Procurement Services Ad-Hoc Subcommittee (Quirk/Worden) S. Sustainability Advisory Committee (DrukerWorden)
T. Traffic and Parking Advisory Committee (Martinez/Worden) U. Undergrounding Project Advisory Committee (Gaasterland/Quirk) V. Other Committee-Subcommittee Reports
XV. UPCOMING AGENDA ITEMS
The following topics/items are tentatively planned for upcoming agendas. The title, wording, and planned date for these items are subject to change. Final agendas are posted at City Hall 72 hours in advance of the meetings and are also posted on our web site with the accompanying staff report. Please watch our web site:
www.delmar.ca.us for City Council Agendas.
July 25, 2022
AB361 Continuation of Remote Public Meetings
Award of Construction Contract for Torrey Pines Road Bridge Deck Treatment Del Mar City Council Regular Meeting July 11, 2022
Agenda Page 7
1050 Camino del Mar, Del Mar, CA 92014 www.delmar.ca.us Finance Committee Appointments (Tentative)
Amendment to Agreement with MSC Janitorial Services
941 CDM Specific Plan Development Agreement and Regulatory Housing Agreement (Second Reading of Ordinance/Adoption)
Task Order Augment with Helix for Riverpath Phase III
Ziskin DeNovo Hearing (Continued)
XVI. CERTIFICATION
I, Sarah Krietor, Administrative Services Manager/City Clerk for the City of Del Mar, hereby certify that a copy of this agenda was posted at City Hall on the 7th day of July, 2022, at approximately 2:00 p.m.
___________________________________________ 7/7/2022
Sarah Krietor, Administrative Services Manager/ Date
City Clerk
DEL MAR CITY COUNCIL
SPECIAL MEETING MINUTES
JUNE 13, 2022
Via Teleconference
1050 Camino del Mar, Del Mar, California
CALL TO ORDER
Mayor Worden called the meeting to order at 2:00P.M.
ROLL CALL
Present: Mayor Dwight Worden; Deputy Mayor Tracy Martinez; Councilmembers Dave Druker, Terry Gaasterland and Dan Quirk
CITY COUNCIL OTHER BUSINESS
ITEM 1: PRESENTATION OF THE FINDINGS FROM PHASE I PLANNING STUDIES TO IMPLEMENT THE CITY’S HOUSING ELEMENT (CLERK’S FILE NO. 304-7, 1601- 8)
An introduction to the item was provided by City Manager Ashley Jones. A presentation was provided by Planning and Community Development Director Karen Brindley and Principal Planner Amanda Lee. Additionally, presentations were provided by consultants Steven Dalton and Hannah Williams with Steven Dalton Architects (SDA) and Paul Marra and Linnie Gavino with Keyser Marston Associates (KMA).
Council questions focused on the basis and rational for affordable housing applications projects to be awarded local, state or federal funding at the different tax credit levels; whether Del Mar may be disadvantaged when applying for funding due to being a wealthy community; frequency developers can apply for tax credits and whether developers can reapply if they are not awarded tax credits for their project; allocations of affordable housing tax credits based on affordable housing type such as senior or family housing; whether soft costs were included in the financing gap analysis; whether a land value was assigned to the Fairground land; whether area median Income (AMI) is median versus average income and the variation from the median and average income; property tax exemptions; whether assumptions were made regarding who would own the project; relationship of funding sources to project unit sizes and amenities; whether projects with studio apartments qualify for tax credits; whether consultants considered various project options for the smaller City owned sites; and clarification on the developer fees and other information included in the financial pro-formas developed by KMA.
There were no public speakers for the item.
Council discussion focused on appreciation for the work presented by staff and consultants; potential for the City to receive adequate funding for the project; desire to place as many affordable units as possible at the Fairgrounds; desire for any projects at the 28th Street or 10th Street sites to fit in with the neighborhood and community charter; desire to look at a two-acre option in addition to the 1- and 1.5-acre options at the Fairgrounds; need for the City to develop a gap financing plan for affordable housing; desire to focus on a stand-alone affordable housing project rather than a mixed-use project at the Fairgrounds; and a desire to engage the community on the City’s affordable housing programs.
1 July 11, 2022 Item 02
SPECIAL MEETING MINUTES
June 13, 2022
ITEM 2: LETTER OF SUPPORT FOR SENATE BILL 1105 (HUESO): SAN DIEGO
REGIONAL EQUITABLE AND ENVIRONMENTALLY FRIENDLY HOUSING ACT (CLERK’S FILE NO. 303-1, 401-7)
A presentation was provided by Councilmembers Druker and Gaasterland.
Council questions and discussion focused on funding for Senate Bill 1105; concerns about potential special taxes included in the bill and need for voter approval; and concerns about the makeup of the board included in the bill and potential for weighted voting that could pose a disadvantage for Del Mar.
Council discussed the proposed letter and no action was taken.
ADJOURNMENT
Mayor Worden adjourned the meeting at 5:18 P.M.
_____
Sarah Krietor, Administrative Services Manager/
City Clerk
2 July 11, 2022 Item 02
CITY OF DEL MAR
CITY COUNCIL REGULAR MEETING MINUTES
JUNE 20, 2022 – VIA TELECONFERENCE ONLY
1050 Camino del Mar, Del Mar California 92014
The minutes set forth the actions taken by the City Council on the matters stated. Audio/video recordings of the City Council proceedings are retained for a period of ten years, in accordance with the City's Records Retention Schedule. Audio/video recordings, as well as written materials presented to the City Council, including Red Dots (materials provided to the City Council after the agenda has published), are available on the City’s website at www.delmar.ca.us/AgendaCenter or by contacting the Administrative Services Department at (858) 755-9313.
CALL TO ORDER
Mayor Worden called the Regular Meeting to order at 4:30 p.m.
ROLL CALL
Present: Mayor Dwight Worden; Deputy Mayor Tracy Martinez; Councilmembers Dave Druker and Terry Gaasterland
Absent: Councilmember Dan Quirk
CITY ATTORNEY CLOSED SESSION REPORT
City Attorney Leslie Devaney reported that there were no recusals or reportable actions for the June 20, 2022 City Council Closed Session meeting. Councilmember Quirk was absent from closed session.
PLEDGE OF ALLEGIANCE
Councilmember Gaasterland led the Pledge of Allegiance.
PUBLIC ORAL COMMUNICATIONS
Mayor Worden opened public oral communications and Mike Morrison spoke regarding the City’s memorial bench program. City Manager Ashley Jones and Public Works Director Joe Bride provided the City Council with background regarding the City’s bench program. Mayor Worden closed public oral communications.
CITY COUNCIL COMMENTS & COMMUNITY ANNOUNCEMENTS
Councilmember Gaasterland reported on the Del Mar Foundation’s upcoming 4 th of July Parade. Mayor
Worden thanked resident Chris Cott and City staff for their efforts reporting and removing graffiti around town.
CITY MANAGER’S REPORT
City Manager Ashley Jones reported on the transition to EDCO for the City’s solid waste services which will be effective July 1, 2022. City Manager Jones also clarified that the presentation provided by City consultant Steven Dalton Architects at the June 13, 2022, City Council Special Meeting included box diagram conceptual designs and not architectural designs for potential affordable housing at the Del Mar Fairgrounds and City owned sites. These design concepts were presented as part of the Phase 1 Planning studies to implement the City’s Housing Element. Potential architectural design for future development will occur much later in the process and there will be an opportunity for public input. 3 July 11, 2022 Item 02
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June 20, 2022
CONSENT CALENDAR
Administrative Services Manager/City Clerk Sarah Krietor read the titles of the items included on the Consent Calendar. There were no public speakers for the consent calendar items.
IT WAS MOVED BY COUNCILMEMBER GAASTERLAND, SECONDED BY DEPUTY MAYOR MARTINEZ TO APPROVE THE CONSENT CALENDAR ITEMS 1 THROUGH 9 AND 11. (VOTE 4-0-1, COUNCILMEMBER QUIRK ABSENT)
Ayes: Mayor Worden, Deputy Mayor Martinez, and Councilmembers Druker and Gaasterland; Noes:
0; Absent: Councilmember Quirk; Abstain: 0.
ITEM 1: APPROVAL OF MINUTES: JUNE 6, 2022 REGULAR AND SPECIAL MEETING (CLERK’S MINUTES BOOK)
Council approved the minutes, on consent.
ITEM 2: RATIFICATION OF LIST OF DEMANDS, DATED JUNE 20, 2022 (CLERK’S FILE NO. 201-3)
Council approved the list of demands, on consent.
ITEM 3: WAIVER OF READING OF ORDINANCES ON AGENDA (CLERK’S FILE NO. 401-4) Council waived the reading of ordinances, on consent.
ITEM 4: SECOND READING AND ADOPTION OF AN ORDINANCE TO AMEND DEL MAR MUNICIPAL CODE CHAPTER 30.84 SIGNS RELATED TO TEMPORARY SIGNS (ZA22-002) (CLERK’S FILE NO. 401-4, 401-9)
Council adopted ordinance 990, “AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DEL MAR, CALIFORNIA, AMENDING CHAPTER 30.84 OF THE DEL MAR
MUNICIPAL CODE (SIGNS) TO ALLOW TEMPORARY SIGNS IN LOCATIONS WITHIN
UNIMPROVED PORTIONS OF THE PUBLIC RIGHT-OF-WAY THAT DO NOT CAUSE A
PUBLIC SAFETY ISSUE IN RESIDENTIAL ZONES BY OR WITH PERMISSION OF THE UNDERLYING PROPERTY OWNER; AND CLARIFY HOW THE ALLOWABLE SIZE OF TEMPORARY SIGNS IS CALCULATED”, on consent.
ITEM 5: APPROVAL OF AN AGREEMENT WITH SOUTHWEST TRAFFIC SIGNAL SERVICE, INC. FOR TRAFFIC SIGNAL MAINTENANCE AND REPAIR SERVICES (CLERK’S FILE NO. 406-1)
Council approved an Agreement between the City of Del Mar and Southwest Traffic Signal Service, Inc. for traffic signal maintenance and repair services for a three-year term beginning on July 1, 2022 and ending on June 30, 2025, with an option to extend the agreement for an additional two-year period; and authorized the City Manager to execute the Agreement, on consent.
4 July 11, 2022 Item 02
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June 20, 2022
ITEM 6: ARTS ADVISORY COMMITTEE APPOINTMENTS (CLERK’S FILE NO. 401-5) Council reappointed Kathryn Grimm and appointed Karla Leopold as at-large, voting members to the Arts Advisory Committee, to serve full three-year terms beginning July 1, 2022, and ending on July 31, 2025, on consent.
ITEM 7: BIENNIAL REVIEW AND UPDATE OF THE DEL MAR CONFLICT OF INTEREST CODE (CLERK’S FILE NO. 404-6)
Council received this report and adopted resolution 2022-38, “A RESOLUTION OF THE
CITY COUNCIL OF THE CITY OF DEL MAR, CALIFORNIA, AMENDING THE CITY OF DEL MAR CONFLICT OF INTEREST CODE”, on consent.
ITEM 8: CONTINUATION OF REMOTE PUBLIC MEETINGS IN COMPLIANCE WITH GOVERNMENT CODE SECTION 54953 (ASSEMBLY BILL 361) (CLERK’S FILE NO. 401-7)
Council adopted resolution 2022-39, “A RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF DEL MAR, CALIFORNIA, MAKING FINDINGS REQUIRED UNDER GOVERNMENT CODE SECTION 54953 RELATED TO ASSEMBLY BILL 361 IN ORDER
TO CONTINUE THE USE OF TELECONFERENCE OR A REMOTE MEETING PLATFORM TO FACILITATE REMOTE PUBLIC MEETINGS”, and to continue with remote public meetings for the next thirty (30) days during the local emergency declared in response to the COVID-19 global pandemic, on consent.
ITEM 9: ACCEPTANCE OF REPORT FOR STATE-MANDATED ANNUAL FIRE INSPECTIONS IN COMPLIANCE WITH SB 1205 (CLERK’S FILE NO. 102-5)
Council adopted resolution 2022-40, “A RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF DEL MAR, CALIFORNIA ACKNOWLEDGING RECEIPT OF A REPORT MADE
BY THE FIRE CHIEF OF THE DEL MAR FIRE DEPARTMENT REGARDING THE
INSPECTION OF CERTAIN OCCUPANCIES REQUIRED TO PERFORM ANNUAL INSPECTIONS IN SUCH OCCUPANCIES PURSUANT TO SECTIONS 13146.2 AND 13146.3 OF THE CALIFORNIA HEALTH AND SAFETY CODE”, in conjunction with Senate Bill (SB) 1205, on consent.
ITEM 10: ANNUAL PREPARATIONS FOR SUMMER SEASON (CLERK’S FILE NO. 1101-1, 1404-1, 1502-10)
The item was pulled from the Consent Calendar for a staff presentation and City Council questions. Community Services Director/Lifeguard Chief Jon Edelbrock provided a presentation. Council questions focused on staff resources needed for the 4th of July holiday weekend; diesel smell at the beach due to hydrolytic issues with the beach cleaner; number of new Lifeguard staff; whether local hotel occupancy rates correlate with visitors to Del Mar’s beaches; traffic monitoring and reduction during 4th of July weekend; inclusion of the summer preparations in the Del Mar Weekly; traffic control plan at the Del Mar Fairgrounds; whether the City is hosting non-profit events at the Civic Center; clarification on whether the City is reimbursed for public safety services for events at the 5 July 11, 2022 Item 02
City Council Regular Minutes
June 20, 2022
Fairgrounds; and appreciation to staff for their efforts preparing for the summer season.
City Council received the presentation and report.
ITEM 11: APPROVAL OF A MEMORANDUM OF AGREEMENT BETWEEN THE CITY OF DEL
MAR AND THE DEL MAR CITY EMPLOYEES ASSOCIATION AND RELATED
AMENDMENT TO THE CITY OF DEL MAR PERSONNEL RULES & REGULATIONS MANUAL (CLERK’S FILE NO. 502-1)
Council adopted resolution 2022-41, “A RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF DEL MAR, CALIFORNIA, APPROVING THE MEMORANDUM OF
AGREEMENT BETWEEN THE CITY OF DEL MAR AND THE DEL MAR CITY EMPLOYEES ASSOCIATION FOR THE PERIOD JULY 1, 2022 THROUGH JUNE 30, 2025”; Authorized the City Manager to execute the Agreement; and adopted resolution 2022-42, “A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DEL MAR, CALIFORNIA, AMENDING THE CITY’S PERSONNEL RULES AND REGULATIONS MANUAL”, on consent.
PUBLIC HEARING
ITEM 12: INTRODUCTION OF AN ORDINANCE APPROVING A DEVELOPMENT AGREEMENT (DA22-001) AND AN ASSOCIATED REGULATORY HOUSING AGREEMENT FOR A
MIXED-USE COMMERCIAL AND RESIDENTIAL DEVELOPMENT LOCATED AT 941 CAMINO DEL MAR (APNS: 300-221-32 & 33) (“PROPERTY”) (CLERK’S FILE NO. 401-4)
IT WAS MOVED BY COUNCILMEMBER GAASTERLAND, SECONDED BY COUNCILMEMBER DRUKER TO CONTINUE THE PUBLIC HEARING DATE CERTAIN TO THE JULY 11, 2022 CITY COUNCIL MEETING. (VOTE 4-0-1, COUNCILMEMBER QUIRK ABSENT) Ayes: Mayor Worden, Deputy Mayor Martinez, and Councilmembers Druker and Gaasterland; Noes:
0; Absent: Councilmember Quirk; Abstain: 0.
ITEM 13: INTRODUCTION OF AN ORDINANCE AMENDING SECTIONS 21.70.110 AND
21.70.120 OF THE DEL MAR MUNICIPAL CODE TO REVISE EMERGENCY WATER MANAGEMENT REQUIREMENTS FOR DROUGHT WATCH CONDITIONS (CLERK’S FILE NO. 401-4, 401-9)
A presentation was provided by Public Works Director Bride.
Council questions and discussion focused on communication strategies related to designated watering times and other provisions of the drought watch conditions; clarification regarding water use associated with the public showers at the beach; clarification on water meter sizes; clarification on the differences between Stage 1 and Stage 2 requirements; drip versus spray watering irrigation; water conservation methods for properties with pools; desire to coordinate with the business community and Del Mar Village Association on commercial customer water conservation outreach efforts; clarification that the water conservation measures outlined in the agenda report are voluntary; whether water usage numbers include the Del Mar Fairgrounds; potential methods for providing residents with up to date information about water usage; and devices such as Flume that can be purchased by residents at hardware stores or online for real time water usage monitoring.
There were no public speakers for the item.
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June 20, 2022
IT WAS MOVED BY COUNCILMEMBER GAASTERLAND, SECONDED BY COUNCILMEMBER
DRUKER TO INTRODUCE AN ORDINANCE AMENDING THE DEL MAR MUNICIPAL CODE (DMMC) SECTIONS 21.70.110 AND 21.70.120 TO REVISE WATER CONSUMER DEMAND REDUCTION MEASURES IN ACCORDANCE WITH RECENT STATE REGULATIONS. (VOTE 4-0-1,
COUNCILMEMBER QUIRK ABSENT)
Ayes: Mayor Worden, Deputy Mayor Martinez, and Councilmembers Druker and Gaasterland; Noes:
0; Absent: Councilmember Quirk; Abstain: 0.
Council consensus was staff to initiate a future agenda item related to installation of purple/reclaimed water pipes and smart water meters.
COUNCIL MEETING RECESS:
The City Council took a meeting recess from approximately 6:09 to 6:20 p.m.
CITY COUNCIL OTHER BUSINESS
ITEM 14: FISCAL YEAR 2021-22 THIRD QUARTER FINANCIAL REPORT (CLERK’S FILE NO. 202-5)
A presentation was provided by Finance Manager/Treasurer Monica Molina. City Manager Jones was available to answer questions.
Council questions and discussion focused on whether staff recommends the City Council consider adjusting the Finnell Plan; consideration of a reserve fund for Shores Park Master Planning; clarification on transient occupancy tax (TOT) revenues; and basis for the increase in wastewater funds.
There were no public speakers for the item.
IT WAS MOVED BY COUNCILMEMBER DRUKER, SECONDED BY COUNCILMEMBER GAASTERLAND TO ADOPT RESOLUTION 2022-44, “A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DEL MAR, CALIFORNIA, AMENDING THE FISCAL YEAR 2021-2022 OPERATING AND CAPITAL BUDGET”. (VOTE 4-0-1, COUNCILMEMBER QUIRK ABSENT) Ayes: Mayor Worden, Deputy Mayor Martinez, and Councilmembers Druker and Gaasterland; Noes:
0; Absent: Councilmember Quirk; Abstain: 0.
ITEM 15: FISCAL YEAR 2022-23 BUDGET UPDATE REPORT (CLERK’S FILE NO. 202-4) A presentation was provided by Finance Manager/Treasurer Monica Molina. City Manager Jones was available to answer questions.
Council questions focused on whether June 2022 sales tax revenues related to the Fair are booked in FY 2021-2022 or FY2022-23; basis for the recommended increases to water and wastewater revenues and whether staff considered drought water conservation; whether staff considered the City’s potential financial position if another recession were to occur; scope of work for Shores Park maintenance funds included in the FY2022-23 budget; whether the updated budget includes reserves for Shores Park Master Planning efforts; Housing Acceleration Program (HAP) grant funding uses included in the budget; whether parking revenues should be reevaluated due to the violation fine increases; confirmation that 7 July 11, 2022 Item 02
City Council Regular Minutes
June 20, 2022
any Council action related to this agenda item will not change the Finnell Plan; Council desire to have a future policy discussion related to reserve funding; and whether the Coronavirus State Relief Fund and American Rescue Plan Act funding would cover the full cost to purchase a new fire engine.
There were no public speakers
IT WAS MOVED BY MAYOR WORDEN, SECONDED BY COUNCILMEMBER GAASTERLAND TO ADOPT THE FOLLOWING RESOLUTIONS: RESOLUTION 2022-45, “A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DEL MAR, CALIFORNIA, AMENDING THE FISCAL YEAR 2022-2023 OPERATING AND CAPITAL BUDGET”, WITH AMENDMENT PER STAFF RED DOT OF REMOVING THE $500,000 MEASURE Q BUDGET REQUEST FROM EXHIBIT A OF THE RESOLUTION; RESOLUTION 2022-46, “A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DEL MAR,
CALIFORNIA, ADOPTING THE COMPENSATION PLANS FOR THE MANAGEMENT AND
PROFESSIONAL, GENERAL, FIREFIGHTER, AND MISCELLANEOUS, PART-TIME, TEMPORARY AND HOURLY EMPLOYEES”; RESOLUTION 2022-47, “A RESOLUTION OF THE CITY COUNCIL OF
THE CITY OF DEL MAR, CALIFORNIA, ESTABLISHING THE FIXED CHARGE ASSESSMENTS FOR BONDED INDEBTEDNESS FOR FISCAL YEAR 2022-2023”; RESOLUTION 2022-48, “A
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DEL MAR, CALIFORNIA, ESTABLISHING THE APPROPRIATIONS LIMIT FOR FISCAL YEAR 2022-23”; RESOLUTION 2022-49, “A
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DEL MAR, CALIFORNIA, APPROVING THE STATEMENT OF INVESTMENT POLICY FOR FISCAL YEAR 2022-2023, AND DELEGATING THE AUTHORITY TO INVEST CITY FUNDS TO THE TREASURER”; AND RESOLUTION 2022-50, “A
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DEL MAR, CALIFORNIA, SETTING THE FISCAL YEAR 2022-2023 CITY OF DEL MAR FEE SCHEDULE FOR PLANNING, PUBLIC WORKS, COMMUNITY SERVICES, AND ADMINISTRATIVE SERVICES”. (VOTE 4-0-1, COUNCILMEMBER
QUIRK ABSENT)
Ayes: Mayor Worden, Deputy Mayor Martinez, and Councilmembers Druker and Gaasterland; Noes:
0; Absent: Councilmember Quirk; Abstain: 0.
ITEM 16: CONSIDERATION OF A RESOLUTION ADJUSTING FINES FOR PARKING VIOLATIONS (CLERK’S FILE NO. 905-1)
A presentation was provided by Community Services Director/Lifeguard Chief Jon Edelbrock.
Council questions focused on the rationale behind the fee reduction for “parking on hill” violations; violation type that includes violations for parking in an electric vehicle only area; violation type for parking too long in the Civic Center parking garage; public outreach associated with the parking fine changes; and confirmation that California Coastal Commission (CCC) approval is not needed in order to implement changes to parking violation fines.
There were no public speakers for the item.
IT WAS MOVED BY DEPUTY MAYOR MARTINEZ, SECONDED BY MAYOR WORDEN TO ADOPT RESOLUTION 2022-43, “A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DEL MAR, CALIFORNIA, ADJUSTING PARKING VIOLATION FINES AND RESCINDING RESOLUTION NO. 2011-52”. (VOTE 4-0-1, COUNCILMEMBER QUIRK ABSENT)
Ayes: Mayor Worden, Deputy Mayor Martinez, and Councilmembers Druker and Gaasterland; Noes:
0; Absent: Councilmember Quirk; Abstain: 0.
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City Council Regular Minutes
June 20, 2022
REGIONAL ORGANIZATION AND COUNCIL COMMITTEES/SUBCOMMITTEES/COMMUNITY
ORGANIZATION REPORTS
City Council representatives reported on the Finance Committee; California Coastal Commission meeting related to the Del Mar Bluff 5 Stabilization project; Fire Governance Board; Council Legislative Subcommittee; Clean Energy Alliance; Regional Solid Waste Association; League of California Cities; San Diego Association of Government Shoreline Preservation Working Group; San Dieguito Riverpark Joint Powers Authority (JPA); and Traffic and Parking Advisory Committee.
ADJOURNMENT
Mayor Worden adjourned the meeting at 7:50 p.m.
__
Sarah Krietor, Administrative Services Manager/
City Clerk
9 July 11, 2022 Item 02
DEL MAR CITY COUNCIL
SPECIAL MEETING MINUTES
JUNE 20, 2022
Via Teleconference
1050 Camino del Mar, Del Mar, California
CALL TO ORDER
Mayor Worden called the meeting to order at 2:45 P.M.
ROLL CALL
Present: Mayor Dwight Worden; Deputy Mayor Tracy Martinez; Councilmembers Dave Druker, Terry Gaasterland and Dan Quirk
CLOSED SESSION
A) Conference with Legal Counsel – Existing Litigation
North County Transit District (NCTD) – Verified Petition for Declaratory Order Surface Transportation Board Finance Docket No. 36433
Authority: Government Code Section 54956.9(d)(1)
Reportable Action: None.
B) Conference with Legal Counsel - Significant Exposure to Litigation Number of Cases: One
Description: Liabilities related to fencing at/near NCTD rails Authority: Government Code Section 54956.9(b)
Reportable Action: None.
C) Conference with Legal Counsel – Existing Litigation
Olson v. City of Del Mar
San Diego Superior Court Case No. 37-2019-00069156-CU-MC-CTL Authority: Government Code Section 54956.9(d)(1)
Reportable Action: None.
D) Conference with Labor Negotiators
Negotiators: Ashley Jones, City Manager; Monica Molina Finance Manager; Sarah Krietor Administrative Services Manager
Labor Associations: Del Mar City Employee Association (DMCEA) Authority: Government Code Section 54957.6
Reportable Action: None.
ADJOURNMENT
Mayor Worden adjourned the meeting at 4:05 P.M.
_____
Sarah Krietor, Administrative Services Manager/
City Clerk
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City of Del Mar
Agenda Report
________________________________________________________________________________________________________ City Council Action:
TO: Honorable Mayor and City Council Members
FROM: Clem Brown, Interim Assistant City Manager
Via Ashley Jones, City Manager
DATE: July 11, 2022
SUBJECT: Approval of a Fourth Amendment to the Agreement with Adam Kaye for AsNeeded Public Information, Communication, and Outreach Services REQUESTED ACTION/RECOMMENDATION:
Staff recommends that the City Council approve a Fourth Amendment to the Agreement with Adam Kaye for as-needed public information, communication and outreach services (Attachment A) through June 30, 2023, and authorize the City Manager to execute the Fourth Amendment.
DISCUSSION/ANALYSIS:
In Spring 2018, the City Council provided direction and funding to expand the City’s public information, communication, and outreach efforts. The City entered into a professional services agreement with consultant Adam Kaye effective June 25, 2018, for $15,000 (Agreement) (Attachment B).
On April 1, 2019, the City Council approved a First Amendment to the Agreement (Attachment C) to increase the contract to a not-to-exceed value of $30,000 per fiscal year and allowed for three one-year extensions, the first of which expired on June 30, 2020.
On September 8, 2020, the City approved a Second Amendment (Attachment D) to allow for another one-year extension at a not-to-exceed value of $20,000, which expired on June 30, 2021.
The reduced amount of the contract was directly related to budget reductions due to the pandemic. It is important to point out that Mr. Kaye still provided valuable communications services even at this reduced amount, including numerous website updates on the City’s COVID web pages.
On July 26, 2021, the City Council approval Third Amendment (Attachment E) to allow for another one-year extension at a not-to-exceed value of $27,500. Of those funds, $5,000 was restricted to communications related to solid waste and $2,500 was budgeted for Undergrounding Project communications. The Third Amendment expired on June 30, 2022.
The proposed Fourth Amendment (and last) to the Agreement would exercise a one-year extension to be effective through June 30, 2023, with a slight increase from the current $40 per hour rate to $50, which remains substantially lower than that of similar service providers or in1 July 11, 2022 Item 05 City Council Agenda Report
Fourth Amendment for As-Needed Communications Services
July 11, 2022
house communications officers. It should also be noted that the rate for services has not been increased since 2018.
During his tenure providing communication consulting services for the City, Mr. Kaye has built strong relationships with staff. His services are a valuable resource for all City departments. His understanding of City policies, initiatives and intergovernmental relations makes him uniquely qualified to remain as the City’s communications consultant in this final year of the contract. Mr.
Kaye is highly responsive and has the ability and willingness to accept assignments at unusual hours and publish information quickly and reliably.
Before the City retained Mr. Kaye’s services, improving public communications was a top priority of the City Council. Since 2018, Mr. Kaye’s performance has met and exceeded expectations of that recurring City Council goal. Additionally, and of great importance, is Mr. Kaye’s ability to work with minimal supervision which is particularly valuable to the City Manager as the City seeks to fill two vacant positions in that office.
For the 2022-23 fiscal year, Mr. Kaye will continue to prepare the Del Mar Weekly newsletter, publish daily posts on Facebook and Twitter, update webpages, issue e-blasts and support City departments as needed. He will also continue to play a key role in public outreach for new solid waste programs, the Undergrounding Project and news from the Planning and Community Development Department. During previous fiscal years, Mr. Kaye provided extensive communication and public outreach services related to COVID-19, Housing Element Update and Downtown Streetscape Project.
FISCAL IMPACT:
There is no fiscal action to be taken by the City Council related to this item. There are currently funds available in the approved FY 2022/23 Operating & Capital Budget for communication services, and any necessary adjustments will be included in the Midyear Budget Update.
ENVIRONMENTAL IMPACT:
There is no environmental impact associated with this item.
NEXUS TO CITY COUNCIL GOALS AND PRIORITIES:
This is an operational item not included on the list of City Council goals and priorities. However, implementing a plan for enhanced City communications, which includes communication consulting services, was a prior City Council goal.
ATTACHMENTS:
Attachment A – Fourth Amendment to the Agreement
Attachment B – Original Agreement with Adam Kaye
Attachment C – First Amendment to the Agreement
Attachment D – Second Amendment to the Agreement
Attachment E - Third Amendment to the Agreement
2 July 11, 2022 Item 05
Attachment A
FOURTH AMENDMENT TO CONSULTING SERVICES AGREEMENT BETWEEN
THE CITY OF DEL MAR AND ADAM KAYE
FOR AS-NEEDED PUBLIC INFORMATION, COMMUNICATION, AND
OUTREACH SERVICES
THIS FOURTH AMENDMENT to the Agreement (Fourth Amendment) is retroactively effect beginning on July 1, 2022, by and between the City of Del Mar, a Charter City and municipal corporation (“City”), and Adam Kaye (“Consultant”) (collectively “Parties”).
WHEREAS, on June 25, 2018, the City and Consultant entered into an Agreement for as-needed public information, communication, and outreach services (“Agreement”); and
WHEREAS, on April 1, 2019, the City and Consultant entered into a First Amendment for as-needed public information, communication, and outreach services which increased the not-to-exceed amount to $30,000 and provided for three, one-year extensions to the Agreement; and
WHEREAS, on September 8, 2020, the City and Consultant entered into a Second Amendment for as-needed public information, communication, and outreach services, which decreased the not-to-exceed amount to $20,000; and WHEREAS, on July 1, 2021, the City and Consultant entered into a Third Amendment for as-needed public information, communication, and outreach services, in an amount not-to-exceed $27,500; and
WHEREAS, the Parties now desire to amend the term and compensation included in the Agreement.
NOW, THEREFORE, the Parties hereby agree to amend the Agreement as follows:
1. Section 2.1 Term, Time for Performance
This Agreement shall be effective for a period beginning on June 25, 2018 through June 30, 2023.
2. Section 4.1 Total Amount
The City shall pay Consultant a rate of fifty dollars ($50) per hour for services included in Exhibit A for Fiscal Year 2022-2023. 3 July 11, 2022 Item 05
Attachment A
3. Except as otherwise provided in this Fourth Amendment, all terms and conditions, and attachments and exhibits thereto, of the Agreement and the First, Second and Third Amendments shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have caused this Fourth Amendment to be effective as of the date first written above.
CITY OF DEL MAR,
a municipal corporation
By: _____________________________
Ashley Jones, City Manager
CONSULTANT
By:
Adam Kaye
ATTEST:
By:
Sarah Krietor, City Clerk
APPROVED AS TO FORM:
By:
Leslie E. Devaney, City Attorney
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ATTACHMENT C
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ATTACHMENT D
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THIRD AMENDMENT TO CONSULTING SERVICES AGREEMENT BETWEEN
THE CITY OF DEL MAR AND ADAM KAYE
FOR AS-NEEDED PUBLIC INFORMATION, COMMUNICATION, AND
OUTREACH SERVICES
THIS THIRD AMENDMENT to the Agreement (Third Amendment) is retroactively effect beginning on July 1, 2021, by and between the City of Del Mar, a Charter City and municipal corporation (“City”), and Adam Kaye (“Consultant”) (collectively “Parties”).
WHEREAS, on June 25, 2018, the City and Consultant entered into an Agreement for as-needed public information, communication, and outreach services (“Agreement”); and
WHEREAS, on April 1, 2019, the City and Consultant entered into a First Amendment for as-needed public information, communication, and outreach services which increased the not-to-exceed amount to $30,000 and provided for three, one-year extensions to the Agreement; and
WHEREAS, on September 8, 2020, the City and Consultant entered into a Second Amendment for as-needed public information, communication, and outreach services, which decreased the not-to-exceed amount to $20,000 and left two remaining one-year extensions to the Agreement; and
WHEREAS, the Parties now desire to amend the term and compensation included in the Agreement.
NOW, THEREFORE, the Parties hereby agree to amend the Agreement as follows:
1. Section 2.1 Term, Time for Performance
This Agreement shall be effective beginning on June 25, 2018 through June 30, 2022. Upon agreement of both Parties in writing, this Agreement may be extended for an additional one-year period.
2. Section 4.1 Total Amount
The City shall pay Consultant a not-to-exceed amount of $27,500 for services included in Exhibit A for Fiscal Year 2021-2022, as follows:
• General Communications – Up to $20,000
• Solid Waste-Related Communications – Up to $5,000
• Citywide Utility Undergrounding Project – Up to $2,500
ATTACHMENT E
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City of Del Mar
Agenda Report
________________________________________________________________________________________________________ City Council Action:
TO: Honorable Mayor and City Council Members
FROM: Beth Murray, Senior Management Analyst
Via Ashley Jones, City Manager
DATE: July 11, 2022
SUBJECT: Agreement with the Del Mar Village Association (DMVA) for Economic Development Services for Fiscal Year 2022-2023
REQUESTED ACTION/RECOMMENDATION:
Staff recommends that the City Council approve an Agreement with the DMVA for FY2022-23 Economic Development Services (Attachment A) totaling $50,000, and authorize the City Manager to execute the agreement.
DISCUSSION/ANALYSIS:
For many years, the City of Del Mar has partnered with the DMVA to provide economic development services for the betterment of local businesses and the City’s overall economic vitality. The adopted budget for Fiscal Year 2021-2022 for DMVA included a Community Support Funding allocation of $25,000 to support economic development activities. This represented half of the funding amount that has historically been provided to DMVA for economic development services, which was a result of the severe budget impacts to the City caused by COVID-19.
Based on the FY 2021-22 Midyear results, the City Council allocated an additional $25,000 (for a total of $50,000) in funding to DMVA for FY 2021-22, and as part of the June 2022 FY 2022-23 Budget Update, DMVA funding for FY 2022-23 was restored to $50,000 for economic development activities.
Activities included in the new FY 2022-23 Economic Development scope of work include:
• Serve as a resource for Del Mar businesses;
• Support new business development in the Del Mar Village; • Continue existing and implement new programs to drive commerce in Downtown Del Mar/Del Mar Village and support fundraising initiatives for the Downtown; • Partner with the City on Downtown improvements and programming; 1 July 11, 2022 Item 06
City Council Agenda Report
DMVA Agreement
July 11, 2022
• Assist the City in implementing and communicating to the Del Mar Businesses environmental sustainability efforts, programs and regulations; • Downtown Sidewalk/Street Furnishings Power Wash/Litter Abatement Program; and
• Communication and reporting to City on DMVA’s programming status.
FISCAL IMPACT:
There is no fiscal action to be taken by the City Council related to this agenda item. Funds for the FY 2022-23 DMVA Economic Development Agreement are included in the approved FY2022-23 budget.
ENVIRONMENTAL REVIEW:
The proposed City Council action does not constitute a “project” under the definition set forth in California Environmental Quality Act (CEQA) Guidelines Section 15378 because it will not have a potential to result in a direct or indirect physical change in the environment and is, therefore, not subject to CEQA. No further action under CEQA is required.
NEXUS TO CITY COUNCIL GOALS AND PRIORITIES:
This is an operational item and not specifically related to the identified Council goals and priorities for FY 2022-23.
ATTACHMENTS:
Attachment A – Economic Development Agreement with the DMVA 2 July 11, 2022 Item 06
AGREEMENT BETWEEN
THE CITY OF DEL MAR AND THE DEL MAR VILLAGE ASSOCIATION FOR FY 2022-23 ECONOMIC DEVELOPMENT SERVICES
THROUGH THE COMMUNITY SUPPORT FUNDING PROGRAM
This Agreement is made and entered into this 1st day of July, 2022, by and between the City of Del Mar, a Charter City and a municipal corporation (“City”), and the Del Mar Village Association (“DMVA”) (collectively “Parties”).
WHEREAS, the City desires to enter into an agreement with DMVA to provide programs designed to facilitate economic growth and development to support of the business community (“Services”). Said work is to be performed in accordance with the terms and conditions set forth below and as described in the scope of services, attached hereto as Exhibit “A” and incorporated herein; and
WHEREAS, the City has initially determined that DMVA is qualified by experience and ability to perform the services desired by City, and DMVA is willing to perform such services; and WHEREAS, DMVA will conduct all the work as described and detailed in this Agreement to be provided to the City.
NOW, THEREFORE, the Parties hereto mutually covenant and agree with each other as follows:
1. SERVICES.
1.1 Scope of Services. DMVA shall perform the Services as set forth in the written Scope of Services, attached hereto as Exhibit “A” and incorporated herein. Such services shall be provided at the direction of the City.
1.2. City Modification of Scope of Services. City may order changes to the Scope of Services within the general scope of this Agreement consisting of additions, deletions, or other revisions. If such changes cause a change in the DMVA’s cost of, or time required for, completion of the Scope of Services, an equitable adjustment to DMVA’s compensation and/or contract time shall be made, subject to the City’s approval. All such changes shall be authorized in writing, executed by DMVA and City. If such a change results in an extension of the term of this Agreement or increases the maximum amount to be paid under this Agreement, no such change shall have any force or effect unless an amendment to this Agreement is approved by the City Council.
2. DURATION OF AGREEMENT.
2.1 Term, Time for Performance. This Agreement shall be effective for a oneyear period beginning on July 1, 2022, and ending on June 30, 2023.
Time is of the essence for this Agreement and each provision of this Agreement, unless otherwise specified in this Agreement.
ATTACHMENT A
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Community Support Funding Agreement
FY 2022-23 DMVA Economic Development Services
2 2.2 Delay. Any delay occasioned by causes beyond the control of DMVA may merit an extension of time for the completion of the Scope of Services. When such delay occurs, DMVA shall immediately notify the Project Coordinator in writing of the cause and the extent of the delay, whereupon the Project Coordinator shall ascertain the facts and the extent of the delay and grant an extension of time for the completion of the Consulting Services when justified by the circumstances provided that no extension of time shall be granted which would extend the time for performance beyond the date specified in section 2.1 above.
2.3 City’s Right to Terminate for Default. Should DMVA be in default of any covenant or condition hereof, City may immediately terminate this Agreement for cause if DMVA fails to cure the default within ten (10) calendar days of receiving written notice of the default.
2.4 City’s Right to Terminate without Cause. Without limiting its rights in the event of DMVA’s default, City may terminate this Agreement, without cause, by giving written notice to DMVA. Such termination shall be effective upon receipt of the written notice. DMVA shall be compensated for all effort and material expended on behalf of City under the terms of this Agreement, up to the effective date of termination. All personal property remaining in City facilities or on City property thirty (30) days after the expiration or termination of this Agreement shall be, at City’s election, considered the property of City.
3. PERFORMANCE AFTER TERMINATION. Upon termination of this Agreement as provided herein, DMVA shall, within such reasonable time period as may be directed by City Manager, complete those items of work which are in various stages of completion and which City Manager determines are necessary to be completed by DMVA to allow the project to be completed in a timely, logical, and orderly manner. Upon termination, all finished or unfinished documents, data, studies, surveys, drawings, models, photographs, reports, and other materials prepared by DMVA shall be delivered to the City Manager, upon her request, as property of City.
4. COMPENSATION.
4.1 Total Amount. Compensation to DMVA will be $50,000 for the services to be provided in Exhibit “A,” to be paid as a lump sum upon execution of the Agreement.
4.2 Additional Services. City may, as the need arises or in the event of an emergency, request additional services of DMVA. Should such additional services be required, Compensation therefore shall be paid to the DMVA in accordance with Scope of Services contained in Exhibit “A.” City and DMVA shall agree to the costs prior to commencement of such work.
5. INDEPENDENT CONTRACTOR. DMVA is, for all purposes arising out of this Agreement, an independent contractor. The DMVA has and shall retain the right to exercise full control and supervision of all persons assisting the DMVA in the performance of said services hereunder, the City only being concerned with the finished results of the work being performed.
Neither DMVA nor DMVA’s employees shall in any event be entitled to any benefits to which City employees are entitled, including, but not limited to, overtime, any retirement benefits, workers’ compensation benefits, any injury leave or other leave benefits, DMVA being solely responsible for all such matters, as well as, compliance with social security and income tax withholding and all other regulations and laws governing such matters.
4 July 11, 2022 Item 06
Community Support Funding Agreement
FY 2022-23 DMVA Economic Development Services
3 6. STATEMENT OF EXPERIENCE. DMVA agrees that it has the financial resources, service experience, completion ability, personnel, and experience in dealing with public agencies necessary for performing the Scope of Services and that such performance shall be in accordance with the standards customarily adhered to by an experienced and competent DMVA using the degree of care and skill ordinarily exercised by reputable DMVA’s practicing in the same field of service in the State of California. By executing this Agreement, DMVA represents that it has demonstrated trustworthiness and possesses the quality, fitness, and capacity to perform the Agreement in a manner satisfactory to City. Additionally, DMVA and all of DMVA’s employees or agents shall secure and maintain in force such permits and licenses as are required by law in connection with the furnishing of services pursuant to this Agreement.
7. AUDIT OF RECORDS.
7.1 At any time during normal business hours and as often as may be deemed necessary, the DMVA shall make available to a representative of City for examination all of its records with respect to all matters covered by this Agreement and shall permit City to audit, examine, and/or reproduce such records. DMVA shall retain such financial and program service records for at least four (4) years after termination or final payment under this Agreement.
7.2 The DMVA shall include the City’s right to audit under this section in any and all of their subcontracts, and shall ensure that these sections are binding upon all subcontractors.
8. CONFIDENTIALITY. All services performed by DMVA, including, but not limited to, all drafts, data, correspondence, proposals, reports, research and estimates compiled or composed by DMVA, pursuant to this Agreement, are for the sole use of the City, its agents and employees. Neither the documents nor their contents shall be released to any third party without the prior written consent of the City. This provision does not apply to information that (a) was publicly known, or otherwise known to DMVA, at the time that it was disclosed to DMVA by the City, (b) subsequently becomes publicly known through no act or omission of DMVA or (c) otherwise becomes known to DMVA other than through disclosure by the City. Except for any subcontractors that may be allowed upon prior agreement, neither the documents nor their contents shall be released to any third party without the prior written consent of the City. The sole purpose of this section is to prevent disclosure of City’s confidential and proprietary information by DMVA or subcontractors.
9. CONFLICTS OF INTEREST.
9.1 DMVA shall at all times comply with all federal, state and local conflict of interest laws, regulations, and policies applicable to public contracts and procurement practices, including, but not limited to, California Government Code §§ 81000 et seq. (Political Reform Act) and §§ 1090 et seq. DMVA shall immediately disqualify itself and shall not use its official position to influence in any way any matter coming before the City in which the DMVA has a financial interest as defined in Government Code § 87103. DMVA represents that it has no knowledge of any financial interests, which would require it to disqualify itself from any matter on which it might perform services for the City.
9.2 DMVA shall comply with all of the reporting requirements of the Political Reform Act. The DMVA shall file a Fair Political Practices Commission Form 700 (Assuming Office Statement) within thirty (30) calendar days of the City’s determination that the DMVA is subject to 5 July 11, 2022 Item 06
Community Support Funding Agreement
FY 2022-23 DMVA Economic Development Services
4 a conflict of interest code, if applicable. The DMVA shall also file a Form 700 (Annual Statement) on or before April 1, disclosing any financial interests held during the previous calendar year for which the DMVA was subject to a conflict of interest code.
9.3 If, in performing the Consulting Services set forth in this Agreement, the DMVA makes, or participates in, a “governmental decision” as described in Title 2, section 18701(a)(2) of the California Code of Regulations, or performs the same or substantially all the same duties for the City that would otherwise be performed by a City employee holding a position specified in the department's conflict of interest code, the DMVA shall be subject to a conflict of interest code requiring the completion of one or more statements of economic interests disclosing the DMVA’s relevant financial interests.
10. OWNERSHIP OF DOCUMENTS. All documents, data, studies, drawings, maps, models, photographs and reports prepared by DMVA under this Agreement shall be considered the property of City. DMVA shall be permitted to reference and use said materials for use in future studies, work, and marketing so long as said materials are considered “public documents” and are not subject to attorney-client privilege, or the subject of pending closed or executive session discussions.
11. INSURANCE
11.1 DMVA shall procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder and the results of that work by the DMVA, their agents, representatives, employees or subcontractors. Insurance shall be placed with insurers with a current A.M. Best’s rating of no less than “A” and “VII” and are admitted to do business in the State of California, unless otherwise approved in writing by the City’s Risk Manager.
11.2 DMVA’s liabilities, including but not limited to DMVA’s indemnity obligations, under this Agreement, shall not be deemed limited in any way to the insurance coverage required herein. All policies of insurance required hereunder must provide that the City is entitled to thirty (30) days prior written notice (ten (10) days for cancellation due to non-payment of premium) of cancellation or non-renewal of the policy or policies. Maintenance of specified insurance coverage is a material element of this Agreement.
11.3 Types and Amounts Required. DMVA shall maintain, at minimum, the following insurance coverage for the duration of this Agreement:
11.3.1 Commercial General Liability (CGL). Insurance written on an ISO Occurrence form CG 00 01 07 98 or equivalent providing coverage at least as broad which shall cover liability arising from any and all personal injury or property damage in the amount of $1,000,000 per occurrence and subject to an annual aggregate of $2,000,000. There shall be no endorsement or modification of the CGL limiting the scope of coverage for either insured vs. insured claims or contractual liability. All defense costs shall be outside the limits of the policy.
11.3.2 Commercial Automobile Liability. For all of the DMVA's automobiles including owned, hired and non-owned automobiles, automobile insurance written on an ISO form CA 00 01 12 90 or a later version of this form or an equivalent form providing coverage at least as broad for bodily injury and property damage for a combined single limit of 6 July 11, 2022 Item 06
Community Support Funding Agreement
FY 2022-23 DMVA Economic Development Services
5 $300,000 per occurrence. Insurance certificate shall reflect coverage for any automobile (any auto).
11.3.3 Workers' Compensation. For all of the DMVA's employees who are subject to this Agreement and to the extent required by applicable state or federal law, a Workers' Compensation policy providing at minimum $1,000,000 employers' liability coverage.
The DMVA shall provide an endorsement that the insurer waives the right of subrogation against the City and its respective elected officials, officers, employees, agents and representatives.
11.3.4 Consulting Liability. Consulting liability (errors and omissions) coverage with a limit of $1,000,000 per claim and $2,000,000 annual aggregate. The DMVA shall ensure both that (1) the policy retroactive date is on or before the date of commencement of the Scope of Services; and (2) the policy will be maintained in force for a period of three years after substantial completion of the Scope of Services or termination of this Agreement whichever occurs last. The DMVA agrees that for the time period defined above, there will be no changes or endorsements to the policy that increase the City's exposure to loss. All defense costs shall be outside the limits of the policy.
11.4 Deductibles and Self-Insured Retentions. Any deductibles or selfinsured retentions are the responsibility of the DMVA and must be declared to and approved by the City. At the option of the City, either (1) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the City, its officers, officials, employees, and volunteers, or (2) the DMVA shall provide a financial guarantee satisfactory to the City guaranteeing payment of losses and related investigations, claim administration, and defense expenses.
11.5 Additional Required Provisions. The commercial general liability and automobile liability policies shall contain, or be endorsed to contain, the following provisions:
11.5.1 The City, its officers, officials, employees, and representatives shall be named as additional insureds. The City's Additional Insured status must be reflected on additional insured endorsement form which shall be submitted to the City.
11.5.2 The policies are primary and non-contributory to any insurance that may be carried by the City, as reflected in an endorsement which shall be submitted to the City.
11.6 Verification of Coverage. DMVA shall furnish the City with original certificates and amendatory endorsements effecting coverage required by this Section 11. The endorsement should be on forms provided by the City or on other than the City’s forms provided those endorsements conform to City requirements. All certificates and endorsements are to be received and approved by the City before work commences. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements affecting the coverage required by these specifications at any time.
12. DEFENSE AND INDEMNIFICATION.
12.1 DMVA agrees to indemnify, defend (with attorneys approved by City), and hold harmless the City, and its officers, officials, agents and employees (the “Indemnified Parties”) from any and all claims, demands, costs or liability that arise out of, or pertain to, or relate to the DMVA, its employees, agents, and subcontractors performance of services under this Agreement.
DMVA’s duty to indemnify under this section shall not include liability for damages for death or 7 July 11, 2022 Item 06
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6 bodily injury to persons, injury to property, or other loss, damage or expense arising from the sole negligence or willful misconduct by the City or its elected officials, officers, agents, and employees. DMVA's indemnification obligations shall not be limited by the insurance provisions of this Agreement. The Parties expressly agree that any payment, attorney's fees, costs or expense City incurs or makes to or on behalf of an injured employee under the City's self-administered workers' compensation is included as a loss, expense, or cost for the purposes of this section, and that this section will survive the expiration or early termination of this Agreement.
12.2 This indemnity is in addition to any other rights or remedies which City may have under the law or this Agreement. In the event of any claim or demand made against any party which is entitled to be indemnified hereunder, City may, at its sole discretion, reserve, retain or apply any monies due to DMVA under this Agreement for the purpose of resolving such claims; provided however, that City may release such funds if DMVA provides City with reasonable assurances of protection of the City's interest. The City shall, in its sole discretion determine whether such assurances are reasonable.
12.3 DMVA agrees that its duty to defend arises upon an allegation of liability based upon the performance of services under this Agreement by DMVA, its officers, agents, representatives, employees, sub-DMVAs, or anyone for whom DMVA is liable and that an adjudication of DMVA’s liability is not a condition precedent to DMVA's duty to defend.
13. SUBCONTRACTORS.
13.1 The DMVA’s hiring or retaining of third parties (i.e. subcontractors) to perform services related to the Project is subject to prior approval by the City.
13.2 All contracts entered into between the DMVA and its subcontractor shall also provide that each subcontractor shall obtain insurance policies, which shall be kept in full force and effect during any and all work on this Project and for the duration of this Agreement.
The DMVA shall require the subcontractor to obtain all policies described in section 11 of this Agreement in the amounts required by the City, which shall not be greater than the amounts required of the DMVA.
13.3 In any dispute between the DMVA and its subconsultants, the City shall not be made a party to any judicial or administrative proceeding to resolve the dispute. The DMVA agrees to defend and indemnify the City as described in section 12 of this Agreement should the City be made a party to any judicial or administrative proceeding to resolve any such dispute or should the City incur any costs in responding to third-party discovery requests.
14. NON-DISCRIMINATION. DMVA shall not discriminate against any employee or applicant for employment because of race, color, religion, sex, national origin, ancestry, physical or mental disability, medical condition, genetic information, marital status, military or veteran status, gender, gender identity, gender expression, sexual orientation, or any other class protected under state, federal, or local law. DMVA shall take affirmative action to insure that applicants are employed and that employees are treated during employment without regard to any class or category protected under state, federal, or local law and shall make reasonable accommodation to qualified individuals with disabilities. Such action shall include, but not be limited to, the following: employment, upgrading, demotion, transfer, recruitment, or recruitment advertising, layoff or termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship. DMVA agrees to post in conspicuous places available to 8 July 11, 2022 Item 06
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7 employees and applicants for employment any notices provided by City setting forth the provisions of this non-discrimination clause.
15. NOTICES. All communications to either party by the other party shall be delivered to the persons listed below. Any such written communications by mail shall be conclusively deemed to have been received by the addressee five (5) calendar days after the deposit thereof in the United States Mail, postage prepaid and properly addressed as noted below.
City of Del Mar Del Mar Village Association
City Manager Jen Grove, CEO
1050 Camino del Mar 1442 Camino Del Mar, Suite 217
Del Mar, CA 92014 Del Mar, CA 92014
16 ASSIGNABILITY. This Agreement and any portion thereof shall not be assigned or transferred, nor shall any of the DMVA’s duties be delegated or sub-contracted, without the express written consent of the City.
17. RESPONSIBILITY FOR EQUIPMENT. City shall not be responsible nor held liable for any damage to persons or property consequent upon the use, misuse, or failure of any equipment used by DMVA or any of DMVA’s employees or subcontractors, even if such equipment has been furnished, rented, or loaned to DMVA by City. The acceptance or use of any such equipment by DMVA, DMVA’s employees, or subcontractors shall be construed to mean that DMVA accepts full responsibility for and agrees to exonerate, indemnify and hold harmless City from and against any and all claims for any damage whatsoever resulting from the use, misuse, or failure of such equipment.
18. CALIFORNIA LAW; VENUE/MISC. This Agreement shall be construed and interpreted according to the laws of the State of California. Any action brought to enforce or interpret any portion of this Agreement shall be brought in the county of San Diego, California.
DMVA hereby waives any and all rights it might have pursuant to California Code of Civil Procedure section 394.
19. COMPLIANCE WITH LAWS. The DMVA shall comply with all laws, ordinances, regulations, and policies of the federal, state, and local governments applicable to this Agreement, including California Labor Code section 1720, et seq., relating to payment of prevailing wages for public works projects, if applicable. DMVA shall indemnify and defend the Indemnified Parties from and against any liability incurred due to any failure on the part of DMVA to comply with any applicable Laws.
To the extent DMVA is required to comply with prevailing wage requirements, DMVA does hereby acknowledge that they are aware of, have read, and understand the terms and implications of SB 854 and DMVA and any subconsultants ensure that they are familiar with and comply with its requirements. Such requirements include, but are not limited to, the registration requirement with the Department of Industrial Relations, State of California (DIR), pursuant to Labor Code section 1725.5. As of March 1, 2015, in compliance with SB 854, the City requires all affected contractors and DMVAs to be registered with the DIR prior to submitting a bid or proposal on any eligible District project. As of April 1, 2015, failure to comply with the requirements of SB 854 by any contractor or DMVA, including registration with the DIR pursuant to Labor Code section 1725.5, shall be a material breach of this Agreement which may be 9 July 11, 2022 Item 06
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8 terminated by the City in its sole and absolute discretion. Where applicable, this project is subject to compliance monitoring and enforcement by the DIR.
20. DMVA’S CERTIFICATION OF AWARENESS OF IMMIGRATION REFORM AND CONTROL ACT OF 1986. DMVA certifies that DMVA is aware of the requirements of the Immigration Reform and Control Act of 1986 (8 USC §§ 1101-1525) and has complied and will comply with these requirements, including, but not limited to, verifying the eligibility for employment of all agents, employees, subcontractors, and DMVAs that are included in this Agreement.
21. ENTIRE AGREEMENT. This Agreement sets forth the entire understanding of the Parties with respect to the subject matters herein. There are no other understandings, terms or other agreements expressed or implied, oral or written, except as set forth herein.
22. AMENDMENTS. This Agreement may be modified or amended only by a written document executed by both DMVA and City and approved as to form by the City Attorney. No change, alteration, or modification of the terms or conditions of this Agreement, and no verbal understanding of the Parties, their officers, agents, or employees shall be valid unless agreed to in writing by both Parties.
23. NO WAIVER. No failure of either the City or the DMVA to insist upon the strict performance by the other of any covenant, term or condition of this Agreement, nor any failure to exercise any right or remedy consequent upon a breach of any covenant, term, or condition of this Agreement shall constitute a waiver of any such breach of such covenant, term or condition.
24. SEVERABILITY. The unenforceability, invalidity, or illegality of any provision of this Agreement shall not render any other provision unenforceable, invalid, or illegal.
25. DRAFTING AMBIGUITIES. The Parties agree that they are aware that they have the right to be advised by counsel with respect to the negotiations, terms and conditions of this Agreement, and the decision of whether or not to seek advice of counsel with respect to this Agreement is a decision which is the sole responsibility of each Party. This Agreement shall not be construed in favor of or against either Party by reason of the extent to which each Party participated in the drafting of the Agreement.
26. LEGAL FEES. In the event of the bringing of any action or suit by either party hereto against the other party hereunder to enforce or interpret any of the provisions, covenants or conditions of this Agreement, or arising out of any tortuous conduct by either party incident to this Agreement, the prevailing party in such action or suit shall be entitled to recover all costs and expenses of suit, including reasonable attorneys' fees. In any action or suit brought to enforce this Agreement, the damages available shall be limited to specific performance or other such equitable relief that the court may order.
27. CONFLICTS BETWEEN TERMS. If an apparent conflict or inconsistency exists between the main body of this Agreement and the Exhibits, the main body of this Agreement shall control. If a conflict exists between an applicable federal, state, or local law, rule, regulation, order, or code and this Agreement, the law, rule, regulation, order, or code shall control. Varying degrees of stringency among the main body of this Agreement, the Exhibits, and laws, rules, regulations, orders, or codes are not deemed conflicts, and the most stringent requirement shall control. Each 10 July 11, 2022 Item 06
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9 Party shall notify the other immediately upon the identification of any apparent conflict or inconsistency concerning this Agreement.
28. EXHIBITS INCORPORATED. All Exhibits referenced in this Agreement are incorporated into the Agreement by this reference.
29. SIGNING AUTHORITY. The representative for each Party signing on behalf of a corporation, partnership, joint venture, or governmental entity hereby declares that authority has been obtained to sign on behalf of the corporation, partnership, joint venture, or entity and agrees to hold the other Party or Parties hereto harmless if it is later determined that such authority does not exist.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement the day and year first hereinabove written.
CITY OF DEL MAR,
a municipal corporation
By: ___________________________
Ashley Jones, City Manager
DMVA
By: _______________________________
Jen Grove, CEO
ATTEST:
________________________________
Sarah Krietor, City Clerk
APPROVED AS TO FORM:
_______________________________
Leslie E. Devaney, City Attorney
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10 EXHIBIT “A”
Del Mar Village Association (DMVA)
$50,000 City of Del Mar Community Support Funding
Scope of Economic Development Services
FY 2022-2023
This Scope of Services will be completed by the Del Mar Village Association (DMVA) on behalf of the City of Del Mar (City) to promote economic development to help maximize revenue for the City. DMVA will use its best efforts to make the following economic development resources available to all brick-and-mortar businesses with a valid City business permit located in the commercial areas of the City of Del Mar (“Del Mar Businesses”). 1) Serve as a Resource to Existing Del Mar Businesses
A. Business Assistance and Retention. Provide ongoing assistance to all existing Del Mar Businesses and commercial property owners on issues related to the downtown, including business expansions, relocations, improvements, promotions; City issues and challenges facing the business community, and other current downtown issues, etc.
B. Information and Communication. Disseminate weekly DMVA business updates regarding City issues and programs, and other relevant information to Del Mar Businesses through email communications, the DMVA business partner Facebook group, social posts, virtual and in-person meetings, and web resources.
C. Business Partner Resource Center. Maintain and regularly update the Business Partner Resource Center on the DMVA website with marketing tools, small business government resources, and other relevant information. Work with the City of Del Mar staff to add new and updated government regulatory information and other City business information to the Business Resource Center with links to the City website.
D. Business to Business Promotion/Networking. Communicate Del Mar Business promotions and connect local businesses through email communications and other outreach, such as quarterly business mixers, webinars, and/or individual meetings
E. Business Support Regulations. Continue to research and outreach to Del Mar Businesses and work with the City on long-term and short-term regulatory options to support these businesses with economic recovery and vitality.
F. Feedback Gathering and Communication. Continue to gather input from Del Mar Businesses about what the City can do to support economic vitality. Encourage communication between business owners, commercial property owners, DMVA, and the City by soliciting feedback on programming and resources, regularly gathering businesses’ specials and offers for promotion to the greater community and visitors, and always keeping an open line of communication.
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11 G. Small Business Liaison to City. Act as a liaison for the Del Mar Businesses by communicating requests and suggestions to the City for consideration and implementation. Work with the City Manager, City staff, and DMVA’s City Council liaisons on downtown issues, concerns, and improvements.
H. Business Data Collection. Assist the City with revisions to the City Business Permit list, including sorting and organizing the data to allow both the City and DMVA to utilize the list for better communication with Del Mar Businesses. 2) Support New Del Mar Business Development and Improvements in Del Mar Village
A. Downtown Developments/Business Opportunities. Support new downtown developments and new business opportunities, with outreach and communications.
B. New Business Recruitment. Update www.VisitDelMarVillage.com online link with new resources for prospective businesses considering locating in Del Mar with steps to start a new business in Del Mar. DMVA to direct inbound new business inquiries to appropriate City of Del Mar departments.
C. Commercial Vacancies. Help to identify commercial vacancies in downtown Del Mar and assist property owners with filling the vacancies. 3) Continue Existing and Implement New Programs to Drive Commerce in Downtown Del Mar Village and Support Fundraising Initiatives for the Downtown A. DMVA Business Partnerships. Outreach to current DMVA business partners for annual partnership renewals. Identify and develop new partnerships with businesses. When possible/desired by businesses, coordinate ribbon-cuttings and welcome to Del Mar ceremonies for business openings, expansions, changes in ownership, etc. Include business promotions in customer and business-to-business eblasts and other promotions. Assist with downtown questions and connect businesses to the residential community and visitors.
B. Del Mar Village Dollars/Yiftee eGift Card. Continue coordinating the Del Mar Village Dollars community card program. Implement promotions at key points in the year – including for holiday shopping – onboard new participating businesses, solicit corporate partnerships and grant funding and promote this program to businesses and residents year-round.
C. Holiday Parking. Support the City holiday parking initiative by coordinating with Public Works for meter bagging and promoting free parking in holiday communications (customer and business e-blasts, social media, etc.).
D. Promotion/Communications Assistance. Work with outlier Del Mar businesses (e.g., Fairground exhibitors, Racetrack event promoters, and other nearby attractions) to support commerce and cross promotions with Del Mar Businesses, and 13 July 11, 2022 Item 06
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12 assist with providing information about City requirements for doing business (i.e., business license, etc.)
4) Partner with City on Downtown Improvements and Programming A. Streetscape Furnishings Improvement
● Work with Rotary Club of Del Mar on continuing to refurbish downtown streetscape furniture.
● Assist the City in developing a formal Bench Donation Program, including developing a contract, fees, procedures, and outreach to existing and new bench donors.
B. Other Downtown Improvements. Organize and coordinate with the City on Rotary Club of Del Mar downtown beautification projects.
C. Sustainability Issues. Assist the City in implementing and communicating to the environmental sustainability efforts, programs and regulations to Del Mar Businesses to ensure business compliance with local, state, and federal laws and City goals.
5) Downtown Sidewalk/Street Furnishings Power Wash/Litter Abatement Program A. Oversee, coordinate, and implement a quarterly program for power washing of Camino Del Mar, and 15th Street downtown sidewalks and street furnishings, as well as a downtown litter abatement program, using the San Diego Urban Corps B. Provide notice of the program to Del Mar Businesses.
C. Provide before and after pictures to the City and Del Mar Businesses. 6) Communication and Reporting to City
A. The City Council liaisons and City staff shall be included in all DMVA Board of Directors meeting notices for both regular meetings and special meetings. DMVA Board meetings shall provide updates on all Economic Development Scope of Work objectives.
B. DMVA to participate in monthly meetings with City Manager to ensure coordination of Del Mar Business issues and/or concerns.
C. DMVA to provide one written annual report outlining what has been done by DMVA to implement this Scope of Services, due May 1, 2023, to include work completed between July 1, 2022, through May 1, 2023, and looking ahead to planned efforts through June 30, 2023.
14 July 11, 2022 Item 06
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: Continuation of Remote Public Meetings in Compliance with Government Code Section 54953 (Assembly Bill 361)
REQUESTED ACTION/RECOMMENDATION:
Staff recommends that the City Council adopt a Resolution (Attachment A) making the finding required by Government Code 54953 related to Assembly Bill 361 (AB 361) to continue with remote public meetings for the next thirty (30) days during the local emergency declared in response to the COVID-19 global pandemic.
DISCUSSION/ANALYSIS:
On September 16, 2021, the Governor signed Assembly Bill 361 (AB 361), which waives certain provisions of the Brown Act and allows for continued remote public meetings during the pandemic if specific findings are made by the City Council. Under AB 361, in order to hold remote public meetings during the declared state of emergency due to the COVID-19 pandemic, the City Council must adopt a Resolution (Attachment A) making at least one of the two findings: 1) state or local officials have recommended measures to promote social distancing; and/or 2) that meeting in-person would pose an imminent risk to the health and safety of attendees. Additionally, the City Council will need to reevaluate and readopt this Resolution every 30 days, which can be accomplished on the consent agenda.
On October 4, 2021, the City Council adopted Resolution 2021-45 making the finding that meeting in-person would pose an imminent risk to the health and safety of attendees as the current state and local health orders do not explicitly require or promote social distancing at this time. The City Council has reconsidered the circumstances of the state of emergency every thirty (30) days and has adopted a number of resolutions extending remote public meetings. Most recently, Resolution 2022-39 was adopted June 20, 2022, to continue with remote meetings through July 20, 2022. These resolutions apply to all City public meetings including the City Council, Design Review Board, Planning Commission, and City advisory committees.
1 July 11, 2022 Item 07
City Council Agenda Report
Continuation of Remote Public Meetings in Compliance with AB361 July 11, 2022
Staff recommends the City Council adopt the Resolution (Attachment A) in order for there to be no gap in the City’s ability to hold public meetings, including special meetings, remotely between July 20, 2022, when Resolution 2022-39 expires, and the next City Council meeting on July 25, 2022. Approval of the proposed Resolution (Attachment A) will allow the City Council, Planning Commission, Design Review Board and City advisory committees to continue to meet remotely through July 20, 2022.
On April 18, 2022, the City Council considered timing options for resuming in-person public meetings. Given the public health circumstances and time needed to facilitate a smooth transition to in-person meetings, Council is targeting September 2022 for resuming in-person meetings beginning with the September 6, 2022, City Council meeting. In accordance with Government Code Section 54953 (AB 361) the City Council will continue to reconsider the public health circumstances every thirty (30) days.
PRIOR CITY COUNCIL REVIEW:
The City Council declared a local emergency in response to the COVID-19 pandemic on March 14, 2020 and has been meeting remotely since that time. The City Council adopted Resolution 2021-45 on October 4, 2021; Resolution 2021-46 on November 1, 2021; Resolution 2021-49 on November 19, 2021; Resolution 2021-53 on December 13, 2021; Resolution 2022-01 on January 10, 2022; Resolution 2022-11 on February 7, 2022; Resolution 2022-18 on March 7, 2022; Resolution 2022-22 on April 4, 2022; Resolution 2022-26 on May 2, 2022; Resolution 2022-29 on May 16, 2022; Resolution 2022-34 on June 6, 2022; and Resolution 2022-29 on June 20, 2022 allowing for the continuation of remote public meetings under the provisions established by AB361.
FISCAL IMPACT:
There is no fiscal impact or action to be taken by the City Council related to this agenda item.
ENVIRONMENTAL IMPACT:
The proposed City Council action does not constitute a “project” under the definition set forth in California Environmental Quality Act (CEQA) Guidelines Section 15378 because it will not have a potential to result in a direct or indirect physical change in the environment and is, therefore, not subject to CEQA. No further action under CEQA is required.
NEXUS TO CITY COUNCIL GOALS AND PRIORITIES:
This is an operational item and not specifically related to the identified Council goals and priorities for FY 2022-23.
ATTACHMENTS:
Attachment A – Resolution Related to AB361 Thirty (30) Day Continuance 2 July 11, 2022 Item 07
RESOLUTION NO. 2022-XX
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DEL
MAR, CALIFORNIA, MAKING FINDINGS REQUIRED UNDER
GOVERNMENT CODE SECTION 54953 RELATED TO
ASSEMBLY BILL 361 IN ORDER TO CONTINUE THE USE OF
TELECONFERENCE OR A REMOTE MEETING PLATFORM TO
FACILITATE REMOTE PUBLIC MEETINGS
WHEREAS, there exists the COVID-19 virus, which represents a serious public health threat; and
WHEREAS, on February 14, 2020, the San Diego County Health Officer declared a Local Health Emergency as a result of the COVID-19 virus; which was subsequently ratified by the Board of Supervisors on February 19, 2020; and WHEREAS, on March 4, 2020, the State of California declared a State of Emergency as a result of the COVID-19 virus; and
WHEREAS, on March 13, 2020, the President of the United States declared a national emergency as a result of the COVID-19 virus; and WHEREAS, on March 14, 2020, the City of Del Mar adopted Resolution 2020-12 declaring a local emergency related to COVID-19 and has been meeting remotely since that time in accordance with multiple Executive Orders issued by the Governor waiving certain provisions of the Brown Act; and
WHEREAS, on September 16, 2021, the Governor signed Assembly Bill 361 (AB361) waiving certain provisions of the Brown Act during declared states of emergency and allowing for the continuation of remote public meetings if specific findings are made; and
WHEREAS, on October 4, 2021, the City Council adopted Resolution 2021-45 making findings in accordance with Assembly Bill 361, thereby waiving specific provisions of the Brown Act in order to continue the use of teleconference or a remote meeting platform to facilitate remote public meetings; and
WHEREAS, the City Council reconsidered the circumstances of the state of emergency, determined that meeting in person would directly impact the ability of the members and the public to meet safely and adopted Resolution 2021-46 on November 1, 2021; Resolution 2021-49 on November 19, 2021; Resolution 2021-53 on December 13; 2021; Resolution 2022-01 on January 10, 2022; Resolution 2022-11 on February 7, 2022; Resolution 2022-18 on March 7, 2022; Resolution 2022-22 on April 4, 2022; Resolution 2022-26 on May 2, 2022; Resolution 2022-29 on May 16, 2022; Resolution 2022-34 on June 6, 2022; and Resolution 2022-39 on June 20, 2022; and 3 July 11, 2022 Item 07
Resolution No. 2022-XX
WHEREAS, on July 11, 2022, the City Council reconsidered the circumstances of the state of emergency and determined that meeting in person would directly impact the ability of the members and the public to meet safely.
NOW THEREFORE, BE IT RESOLVED by the City Council of the City of Del Mar that the City of Del Mar may continue to use teleconference or a remote meeting platform for the next thirty (30) days in accordance with AB361 based on the following findings:
1. The City Council has held public meetings during the declared emergency related to the COVID-19 pandemic and has determined by a majority vote of the City Council that as a result of the COVID-19 global pandemic, meeting in person would present imminent risks to the health or safety of members and attendees.
BE IT FURTHER RESOLVED by the City Council that this resolution applies to the City Council, Design Review Board, Planning Commission, and all City advisory committees.
PASSED, APPROVED AND ADOPTED by the City Council of the City of Del Mar, California, at the Regular meeting held this 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
4 July 11, 2022 Item 07
Resolution No. 2022-XX
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 No. 2022-XX, 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
5 July 11, 2022 Item 07
City of Del Mar
Agenda Report
________________________________________________________________________________________________________ City Council Action:
TO: Honorable Mayor and City Council Members
FROM: Joe Bride, Public Works Director
Karen Falk, Principal Engineer
Kseniia Izgarskaia, Associate Management Analyst
Via Ashley Jones, City Manager
DATE: July 11, 2022
SUBJECT: Second Reading and Adoption of an Ordinance Amending Sections 21.70.110 and 21.70.120 of the Del Mar Municipal Code to Revise Emergency Water Management Requirements for Drought Watch Conditions and Resolution Reaffirming the City’s Intent to Remain in Stage 1 Drought Watch Condition REQUESTED ACTION/RECOMMENDATION:
Staff recommends the City Council: 1) Adopt an Ordinance (Attachment A) amending the Del Mar Municipal Code (DMMC) Section 21.70.110 and Section 21.70.120 to revise water consumer demand reduction measures in accordance with recent State regulations; and 2) Adopt a Resolution Reaffirming the City’s intent to remain in Stage 1 Drought Watch Condition.
DISCUSSION/ANALYSIS:
On March 28, 2022, Governor Newsom issued Executive Order N-7-22, directing the State Water Resources Control Board to consider requiring urban water suppliers to activate, at a minimum, Level 2 of their water shortage contingency plans and provide emergency regulations for urban water conservation by May 25, 2022.
On May 24, 2022, the State Water Resources Control Board adopted emergency regulations that require water suppliers to implement Level 2 Demand Reduction Measures as identified in the supplier’s Water Shortage Contingency Plans (WSCP) for a shortage level of 10-20% percent. In response, the San Diego County Water Authority (Water Authority) and its member agencies, which includes Del Mar, are implementing Level 2 Demand Reduction Measures of their WSCP on a voluntary basis without formally moving to Level 2 at this time.
The Water Authority and its member agencies are committed to supporting Governor Newsom’s executive order that seeks a 20% reduction in water use across California. The City of Del Mar has been in a Stage 1 – Drought Watch Condition since 2016, which currently remains in effect. However, additional actions need to be taken to further promote water conservation efforts and remain in compliance with the State and County regulations. 1 July 11, 2022 Item 08
City Council Agenda Report
Ordinance Amending DMMC Sections 21.70.110 and 21.70.120 July 11, 2022
Section 21.70.110 of the DMMC, Drought Response Stage 1 (Level 1) – Drought Watch Condition, encourages voluntary water conservation. As written, this section of the Code is in need of revision to add specific water consumer demand reduction measures that would help decrease water consumption with a goal of up to 15%. The required revisions to this section add the demand reduction measures as voluntary in Stage 1. Section 21.70.112 of the DMMC, Drought Response Stage 2 (Level 2) – Drought Alert, is also inconsistent with the State’s recent emergency regulations and is in need of revision. The required revisions to this section change the voluntary demand reduction measures included in Stage 1 to mandatory in Stage 2, requiring a water demand reduction up to 20% and implementing a modified surcharge rate structure. Adoption of the Ordinance (Attachment A) is needed to revise the Municipal Code accordingly.
On June 20, 2022, the City Council introduced an Ordinance Amending Sections 21.70.110 and 21.70.120 of the Del Mar Municipal Code to Revise Emergency Water Management Requirements for Drought Watch Conditions. Tonight’s agenda item is the second reading and final adoption of the Ordinance.
Additionally, included with this agenda item for the Council’s consideration is a Resolution (Attachment B) reaffirming that the City will encourage water demand reduction measures to promote water conservation, but will not be formally moving into a Stage 2 drought response at this time.
FISCAL IMPACT:
There is no fiscal impact or action to be taken by the Council related to this agenda item.
ENVIRONMENTAL IMPACT:
The proposed City Council action does not constitute a “project” under the definition set forth in California Environmental Quality Act (CEQA) Guidelines Section 15378 because it will not have a potential to result in a direct or indirect physical change in the environment and is, therefore, not subject to CEQA. No further action under CEQA is required.
NEXUS TO CITY COUNCIL GOALS AND PRIORITIES:
This is an operational item and not specifically related to the identified Council goals and priorities for FY 2022-23.
ATTACHMENTS:
Attachment A – Ordinance Amending DMMC Sections 21.70.110 and 21.70.120 Attachment B – Resolution Reaffirming Drought Response Stage 1 2 July 11, 2022 Item 08
ORDINANCE NO. XXX
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DEL
MAR, CALIFORNIA, AMENDING DEL MAR MUNICIPAL CODE
SECTIONS 21.70.110 (DEMAND MANAGEMENT/DROUGHT
RESPONSE STAGE 1 — DROUGHT WATCH CONDITION) AND
21.70.120 (DEMAND MANAGEMENT/DROUGHT RESPONSE
STAGE 2 — DROUGHT ALERT CONDITION) TO REVISE
EMERGENCY WATER MANAGEMENT REQUIREMENTS FOR
DROUGHT WATCH AND ALERT CONDITIONS
WHEREAS, water supply conditions have been challenging statewide in California for several years; and
WHEREAS, Chapter 21.70 of the Del Mar Municipal Code establishes an emergency water management program in order to conserve water supplies, minimize the effects of water supply shortages, and allow the City to respond to water emergency conditions; and
WHEREAS, Section 21.70.110 of the Del Mar Municipal Code establishes emergency water conservation requirements for Drought Response Stage 1 – Drought Watch Condition; and
WHEREAS, Section 21.70.120 of the Del Mar Municipal Code establishes emergency water conservation requirements for Drought Response Stage 2 – Drought Alert Condition; and
WHEREAS, on July 21, 2014, the City Council adopted Resolution No. 2014-64, declaring Drought Response Stage 2 – Drought Alert to be in effect advising all customers to increase water conservation; and
WHEREAS, on June 1, 2015, the City Council adopted Ordinance No. 907 as an urgency ordinance to implement drought measures issued by the State and authorizing the City Manager to implement and enforce the urgency drought measures, including restrictions on outdoor irrigation; and
WHEREAS, on July 5, 2016, the City Council adopted Resolution No. 2016-42, declaring Drought Response Stage 1 – Drought Watch Conditions to be in effect, reducing the drought response stage, but urging citizens and businesses to continue voluntary efforts to conserve water by following measures adopted during the Stage 2 response in 2015-2016 and continuing the mandatory water use prohibitions of the urgency drought measures; and
WHEREAS, on July 8, 2021, California Governor Newsom issued Executive Order N-10-21 calling on all Californians to voluntarily reduce their water use by 15% compared to 2020 levels, with the order applying to 50 of the state’s 58 counties and excluding San Diego County; and
3 July 11, 2022 Item 08
Ordinance No. XXX
WHEREAS, on October 19, 2021, Governor Newsom issued a proclamation extending the drought emergency statewide and further urging Californians to step up their water conservation efforts as the western United States faces a potential third dry year; and
WHEREAS, on October 28, 2021, the San Diego County Water Authority adopted a resolution to activate Level 1 of its Water Shortage Contingency Plan and encourage its member agencies to activate the appropriate voluntary provisions of their shortage contingency plans; and
WHEREAS, on December 13, 2021, the City Council adopted Ordinance No. 984 revising the emergency water conservation requirements for Drought Response Stage 1 – Drought Watch Condition of Section 21.70.110 of the Del Mar Municipal Code; and WHEREAS, on March 28, 2022, Governor Newsom issued Executive Order N-7- 22 directing the State Water Resources Control Board to provide emergency regulations for urban water conservation by May 25, 2022; and
WHEREAS, on May 24, 2022, the State Water Resources Control Board adopted a resolution to adopt emergency regulations that require certain water suppliers to implement Level 2 demand reduction measures as identified in the supplier’s water shortage contingency plans for a shortage level of ten to twenty percent; and WHEREAS, the emergency regulations adopted by the State Water Resources Control Board’s May 24, 2022 resolution went into effect on June 10, 2022; and WHEREAS, the City of Del Mar is not required to implement Level 2 demand reduction measures but nonetheless desires to continue to encourage reduced demand in response to the State Water Resources Control Board’s action; and WHEREAS, in order to implement demand reduction measures, Section 21.70.110 of the Del Mar Municipal Code is in need of revision to add specific water consumer demand reduction measures that would help decrease water consumption of up to 10% (generally mirroring measures adopted as part of the June 1, 2015 urgency ordinance) and Section 21.70.112 of the Del Mar Municipal Code requires revisions to change the voluntary demand reduction measures included in Stage 1 to mandatory in Stage 2, encouraging a water demand reduction between 10 to 20%.
NOW THEREFORE, the City Council of the City of Del Mar, California, hereby ordains as follows:
SECTION ONE:
That Section 21.70.110 of Chapter 21.70 of the Del Mar Municipal Code relating to Emergency Water Management of the City of Del Mar is amended to read as follows:
21.70.110 Demand Management/Drought Response Stage 1 - Drought Watch Condition.
4 July 11, 2022 Item 08
Ordinance No. XXX
A. A Demand Management/Drought Response Stage 1 condition is also referred to as a "Drought Watch" condition. A Stage 1 shall be declared to encourage voluntary water conservation. This Stage 1 condition applies when the Water Authority notifies its member agencies to activate the appropriate voluntary provisions of the water shortage contingency plan.
B. When Stage 1 is declared and in effect, all persons shall be urged to comply, on a voluntary basis, with the water usage reduction and other conditions as may be identified by the Governor, State of California, or San Diego County Water Authority.
C. In addition to the water usage reductions and other conditions referenced in subsection B above, when Stage 1 is declared and in effect all persons are requested to comply with the following water demand reduction measures;
1. Irrigating “Non-Functional Turf” at commercial, industrial, and institutional sites is prohibited. “Non-Functional Turf,” as defined in section 996 of title 23 of the California Code of Regulations, as may be amended from time to time, is defined as any turf (grass) that is solely ornamental and not regularly used for human recreational purposes or for civic or community events. “Non-Functional Turf” does not include sports fields and turf that is regularly used for human recreational purposes of for civic or community events. a. Notwithstanding subsection (C)(1), the use of water is not prohibited by this section to the extent necessary to ensure the health of trees and other perennial non-turf plantings or to the extent necessary to address an immediate health and safety need.
b. Notwithstanding subsection (C)(1), the City may approve a request for continued irrigation of non-functional turf where the user certifies that the turf is a low water use plant with a plant factor of 0.3 or less, and demonstrates the actual use is less than 40% of reference evapotranspiration.
2. Stop washing down paved surfaces, including but not limited to sidewalks, driveways, parking lots, tennis courts, or patios, except when it is necessary to alleviate safety or sanitation hazards.
3. Stop water waste resulting from inefficient landscape irrigation, such as runoff, low head drainage, or overspray, etc. Similarly, stop water flows onto nontargeted areas, such as adjacent property, non-irrigated areas, hardscapes, roadways, or structures.
4. Irrigate residential and commercial landscape before 10 AM or after 6 PM; limited to three applications per week. Irrigation is prohibited during and within 48 hours after measurable rainfall of at least one fourth of one inch of rain.
5. Use a handheld hose equipment with positive shut-off nozzle and bucket to wash vehicles.
6. Serve and re-fill water in restaurants, bars, and other food service establishments only upon request.
7. Offer guests in hotels, motels, and other commercial lodging establishments the option of not laundering towels and linens daily.
5 July 11, 2022 Item 08
Ordinance No. XXX
8. Repair all water leaks within 72 hours of notification by the City.
9. Use re-circulated water to operate ornamental fountains.
10. Use non-potable water for construction purposes when available.
Additional Conditions on Uninterrupted Delivery: None.
SECTION TWO:
That Section 21.70.120 of Chapter 21.70 of the Del Mar Municipal Code relating to Emergency Water Management of the City of Del Mar is amended to read as follows:
21.70.110 Demand Management/Drought Response Stage 2 - Drought Alert Condition.
A. Demand Management/Drought Response Stage 2 condition is also referred to as a "Drought Alert" condition. A Stage 2 shall be declared when the City determines that water usage should be reduced up to 20 percent from the ordinary demand requirement, as determined by the City.
B. When Stage 2 is declared and in effect, metered customers of the City shall receive uninterrupted water delivery subject to the modified surcharge rate structure set as follows:
Meter
Size
Bimonthly Fixed Surcharge During Demand Management/Drought:
7/1/19 1/1/20 1/1/21 1/1/22 1/1/23 1/1/24
⅝" $2.98 $3.14 $3.26 $3.40 $3.64 $3.84
¾" 4.48 4.70 4.90 5.10 5.46 5.76
1" 7.46 7.84 8.16 8.50 9.10 9.58
1 ½" 14.90 15.68 16.30 17.00 18.20 19.14
2" 23.84 25.08 26.08 27.20 29.10 30.64
3" 47.68 50.14 52.16 54.40 58.20 61.26
4" 74.48 78.32 81.48 84.98 90.94 95.70
22nd
DAA*
953.24 1,002.48 1,042.94 1,087.64 1,163.98 1,224.84
One 8" meter and two 10" meters
Volumetric Surcharge applied to all units of usage by all customer classes. 6 July 11, 2022 Item 08
Ordinance No. XXX
Volumetric Surcharge During Demand Management/Drought Periods:
7/1/19 1/1/20 1/1/21 1/1/22 1/1/23 1/1/24
$0.23 $0.25 $0.26 $0.27 $0.29 $0.30
C. When Stage 2 is declared and in effect, the demand reduction measures listed in Stage 1 shall become mandatory.
SECTION THREE:
This Ordinance was introduced by the City Council on June 20, 2022.
SECTION FOUR:
The City Clerk is directed to prepare and have published a summary of this Ordinance no less than five days prior to the consideration of its adoption and again within 15 days following adoption indicating votes cast.
SECTION FIVE:
If any section, subsection, sentence, clause, phrase or portion of this Ordinance is, for any reason, held invalid or unconstitutional, such decision shall not affect the validity of the remaining portions of this Ordinance.
SECTION SIX:
The Ordinance shall take effect and be in full force thirty (30) days after the date of adoption.
PASSED, APPROVED AND ADOPTED by the City Council of the City of Del Mar, California at the Regular Meeting held this 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
7 July 11, 2022 Item 08
Ordinance No. XXX
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 Ordinance No. XXX which has been published pursuant to law, and 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, City Clerk/Administrative
Services Manager
City of Del Mar
8 July 11, 2022 Item 08
RESOLUTION NO. 2022-XX
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DEL
MAR, CALIFORNIA, REAFFIRMING DROUGHT RESPONSE
STAGE 1 - DROUGHT WATCH AND ENCOURAGING
CONTINUED VOLUNTARY ADHERENCE WITH WATER
DEMAND REDUCTION MEASURES
WHEREAS, the State of California has experienced three consecutive years of drought, and many water reservoirs are currently at record low levels; and WHEREAS, on July 5, 2016, the City Council of the City of Del Mar adopted Resolution 2016-42 reducing the drought response level to Stage 1 – Drought Watch, but encouraging continued voluntary adherence with water restrictions adopted during the Stage 2 response in 2015-2016 (which included the mandatory water use prohibitions established by the State and adopted by the City Council via urgency ordinance, Ordinance No. 907); and
WHEREAS, the City of Del Mar has remained in Stage 1 since July 5, 2016; and WHEREAS, on July 8, 2021, California Governor Newsom issued Executive Order N-10-21 calling on all Californians to voluntarily reduce their water use by 15% compared to 2020 levels, with the order applying to 50 of the state’s 58 counties and excluding San Diego County; and
WHEREAS, on October 19, 2021, Governor Newsom issued a proclamation extending the drought emergency statewide and further urging Californians to step up their water conservation efforts as the western United States faces a potential third dry year; and
WHEREAS, on March 28, 2022, Governor Newsom issued Executive Order N-7- 22 directing the State Water Resources Control Board to provide emergency regulations for urban water conservation by May 25, 2022; and
WHEREAS, on May 24, 2022, the State Water Resources Control Board adopted a resolution to adopt emergency regulations that require certain water suppliers to implement Level 2 demand reduction measures as identified in the supplier’s water shortage contingency plans for a shortage level of 10-20%; and WHEREAS, the emergency regulations adopted by the State Water Resources Control Board’s May 24, 2022 resolution went into effect on June 10, 2022; and WHEREAS, the City of Del Mar is not required to implement Level 2 demand reduction measures but nonetheless desires to continue to encourage reduced demand in response to the State Water Resources Control Board’s action; and WHEREAS, while the San Diego County Water Authority and its member agencies’ water-efficient practices and measures, along with efforts at diversifying and 9 July 11, 2022 Item 08
Resolution No. 2022-XX
developing drought-resistant supplies, have eliminated water supply shortages to the San Diego region, the Water Authority and its member agencies are still committed to supporting Governor Newsom’s executive order that seeks a 20% reduction in water use across California; and
WHEREAS, Del Mar Municipal Code (DMMC) Chapter 21.70 (Emergency Water Management) establishes an emergency water management program in order to conserve water supplies, minimize the effects of water supply shortages, and allows the City to respond to water emergency conditions; and
WHEREAS, on July 11, 2022, the City Council of the City of Del Mar adopted Ordinance No. XXX amending Del Mar Municipal Code Sections 21.70.110 (Demand Management/Drought Response Stage 1 – Drought Watch Condition) and 21.70.120 (Demand Management/Drought Response Stage 2 – Drought Alert Condition) to revise emergency water management requirements for drought watch and alert conditions, including adding specific water consumer demand reduction measures that would help decrease water consumption of up to 10%.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Del Mar, California, as follows:
1. The above recitals are true and correct.
2. The City of Del Mar reaffirms Drought Response Stage 1 to be in effect, and urges citizens and businesses to continue voluntary efforts to conserve water by following water demand reduction measures as outlined in Section
21.70.110 of the DMMC, Drought Response Stage 1 (Level 1) – Drought Watch Condition, specifically:
A. Irrigating “Non-Functional Turf” at commercial, industrial, and institutional sites is prohibited. “Non-Functional Turf,” as defined in section 996 of title 23 of the California Code of Regulations, as may be amended from time to time, is defined as any turf (grass) that is solely ornamental and not regularly used for human recreational purposes or for civic or community events. “Non-Functional Turf” does not include sports fields and turf that is regularly used for human recreational purposes of for civic or community events.
i. Notwithstanding subsection (A), the use of water is not prohibited by this section to the extent necessary to ensure the health of trees and other perennial non-turf plantings or to the extent necessary to address an immediate health and safety need.
ii. Notwithstanding subsection (A), the City may approve a request for continued irrigation of non-functional turf where the user certifies that the turf is a low water use plant with a plant factor of 0.3 or less, and demonstrates the actual use is less than 40% of reference evapotranspiration.
10 July 11, 2022 Item 08
Resolution No. 2022-XX
B. Stop washing down paved surfaces, including but not limited to sidewalks, driveways, parking lots, tennis courts, or patios, except when it is necessary to alleviate safety or sanitation hazards.
C. Stop water waste resulting from inefficient landscape irrigation, such as runoff, low head drainage, or overspray, etc. Similarly, stop water flows onto non-targeted areas, such as adjacent property, non-irrigated areas, hardscapes, roadways, or structures.
D. Irrigate residential and commercial landscape before 10 AM or after 6 PM; limited to three applications per week. Irrigation is prohibited during and within 48 hours after measurable rainfall of at least one fourth of one inch of rain.
E. Use a handheld hose equipment with positive shut-off nozzle and bucket to wash vehicles.
F. Serve and re-fill water in restaurants, bars, and other food service establishments only upon request.
G. Offer guests in hotels, motels, and other commercial lodging establishments the option of not laundering towels and linens daily.
H. Repair all water leaks within 72 hours of notification by the City.
I. Use re-circulated water to operate ornamental fountains.
J. Use non-potable water for construction purposes when available.
PASSED, APPROVED AND ADOPTED by the City Council of the City of Del Mar, California, at the Regular Meeting held this 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
11 July 11, 2022 Item 08
Resolution No. 2022-XX
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 No. 2022-XX, 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 Service
Manager/City Clerk
City of Del Mar
12 July 11, 2022 Item 08
City of Del Mar
Agenda Report
________________________________________________________________________________________________________ City Council Action:
TO: Honorable Mayor and City Council Members
FROM: Mayor Dwight Worden and Council Member Dave Druker, Liaisons to the Sustainability Advisory Committee
Prepared by Kseniia Izgarskaia, Associate Management Analyst DATE: July 11, 2022
SUBJECT: Sustainability Advisory Committee Appointment
REQUESTED ACTION/RECOMMENDATION:
The City Council Liaisons to the Sustainability Advisory Committee (SAC) recommend that the City Council appoint Sean McDowell to the SAC as a voting member to serve a full threeyear term effective July 11, 2022 and ending on July 31, 2025.
DISCUSSION/ANALYSIS:
The Sustainability Advisory Committee (SAC) advises the Del Mar City Council on climate change, sustainability, and other environmental issues on which the Council may wish to act.
The Committee also takes the lead in advising the Council on how and when to update the City’s Climate Action Plan (CAP), which was developed by SAC in June 2016, and assists in informing Del Mar residents and businesses about implementing the City’s CAP and on environmental and climate action issues. The SAC also monitors the activities of the Clean Energy Alliance (CEA) and provides recommendations to the City Council.
The committee consists of nine members, including seven voting members and two ex-officio, non-voting members. Of the voting members a minimum of six must be residents of Del Mar and one may be a non-resident of Del Mar. Ex-officio, non-voting members may be residents of Del Mar or non-residents and shall be appointed based on their professional experience with environmental and sustainability issues. All members serve three-year, staggered terms.
There is currently one voting member vacancy on SAC due to Dolores Davies Jamison’s resignation on April 22, 2022. City staff advertised the vacancy, and one Citizen Interest Form was received during the recruitment period from Sean McDowell (Attachment A). The Council Liaisons to the Committee have reviewed the application and recommend that the City Council appoint Sean McDowell to fill the vacancy. If the recommended appointment is approved by the City Council, the Committee will have a full roster with no remaining vacancies. A copy of the current SAC roster is included in this report for the Council’s reference as Attachment B.
ATTACHMENTS:
Attachment A – Citizen Interest Forms
Attachment B – Current SAC Roster
1 July 11, 2022 Item 09
2 July 11, 2022 Item 09
3 July 11, 2022 Item 09
4 July 11, 2022 Item 09
5 July 11, 2022 Item 09
6 July 11, 2022 Item 09
7 July 11, 2022 Item 09
City of Del Mar
Sustainability Advisory Committee
Appointing Authority City Council
Position Voting Member
Alan Sweedler
1st Term Oct 03, 2016 - Jul 03, 2022
Appointing Authority City Council
Position Chair
Category Voting Member
Silvia De Dea
1st Term Aug 06, 2019 - Feb 01, 2023
Appointing Authority City Council
Position Secretary
Category Voting Member
Bertha E Leone
1st Term Dec 04, 2017 - Sep 01, 2023
Appointing Authority City Council
Position Vice Chair
Ann Feeney
2nd Term Mar 19, 2018 - Jan 02, 2024
Position Voting Member
Valerie Dufort-roy
1st Term Mar 21, 2022 - Mar 31, 2025
Appointing Authority City Council
Position Voting Member
Daria Flores
1st Term Mar 21, 2022 - Mar 31, 2025
Board Roster
Sustainability Advisory Committee Page 1 of 2
8 July 11, 2022 Item 09
Appointing Authority City Council
Position Ex-Officio
Category Ex-Officio, Non-Voting Member
Strowbridge F Watson
1st Term Mar 21, 2022 - Mar 31, 2025
Position Ex-Officio
Category Ex-Officio, Non-Voting Member
Jeanne Nilmini Silva-send
2nd Term May 01, 2022 - May 31, 2025
Appointing Authority City Council
Position Voting Member
Vacancy
Sustainability Advisory Committee Page 2 of 2
9 July 11, 2022 Item 09
City of Del Mar
Agenda Report
________________________________________________________________________________________________________ City Council Action:
TO: Honorable Mayor and City Council Members
FROM: Karen Brindley, Planning and Community Development Director Via Ashley Jones, City Manager
DATE: July 11, 2022
SUBJECT: Approval of Agreement for As-Needed Affordable Housing Consulting Services
REQUESTED ACTION/RECOMMENDATION:
Staff recommends that the City Council: 1) Approve an as-needed agreement with Whitaker Real Estate Services (Attachment A); and 2) Authorize the City Manager to execute the agreement.
BACKGROUND:
On December 13, 2021, the City Council re-adopted the 6th Cycle Housing Element (HE) covering the planning period 2021-2029 to address revisions requested by the California Department of Housing and Community Development (HCD). In March 2022, HCD informed the City additional analyses would be required to obtain certification. While the City continues to work with HCD towards certification by addressing various revisions, implementation of the forty-one (41) implementation programs included in the adopted 6th Cycle Housing Element is already underway.
The City’s Housing Element identifies a Regional Housing Needs Assessment allocation of 175 residential units and sets forth a plan to create opportunities for new affordable housing to accommodate housing for at least 113 lower income households as assigned to the City for the current Housing Element cycle (2021-2029). The City’s plan to meet its housing obligation includes a variety of strategies that focus on utilizing public land to accommodate at least 61 lower income units and the remaining 52 affordable units through participation from private property owners. Specifically, Housing Element Goal 3 indicates the City will vigorously pursue housing opportunities on the State Fairgrounds 22nd District Agricultural Association (DAA) site located within the City of Del Mar and implementation of Program 3A specifically indicates the City will pursue and execute a binding agreement with the State DAA by December 2024 to accommodate future development of at least 54 lower income units on the Fairgrounds property. 1 July 11, 2022 Item 10
City Council Agenda Report
As-Needed Affordable Housing Consulting Services
July 11, 2022
The City has taken a stepped approach to implementing all 41 housing element programs; however, a priority focus has been directed at understanding and informing development of affordable housing on the State Fairgrounds and two City owned sites. Efforts to date have included obtaining a $225,000 Housing Acceleration Grant; completing economic and planning studies of various development scenarios and issuing a Request for Qualifications for as needed affordable housing consulting services. Due to the complex nature of working with multiple stakeholders and State agencies that will be required to secure an agreement with the State allowing for development of affordable housing on the Fairgrounds, staff solicited the proposals with an expectation the respondents would demonstrate the specialized skillset and experience in this area, along with capability to assist other implementation programs.
DISCUSSION/ANALYSIS:
On May 10, 2022, the City issued a Request for Qualifications (RFQ 2022-03) soliciting proposals from qualified firms to provide on-call, as-needed affordable housing consulting services for an initial five-year period with an option to extend the agreement for an additional two-year period. The contract term would be consistent with the 6th Cycle Housing Element planning period which concludes in 2029 since it is expected the consultant will assist staff with implementing several programs. Four firms submitted proposals in response to the RFQ: California Coastal Works, ECONorthwest, Housing Inc., and Whitaker Real Estate Services.
The proposals were carefully evaluated by staff based on experience and qualifications.
The proposed costs and fees were also evaluated to ensure they were in line with current market rates for the services to be provided. Based on a review of the proposals submitted by the responsive firms and interviews conducted with the two top rated firms, staff determined that Whitaker Real Estate Services is the most qualified to meet the City’s current and future needs.
Whitaker Real Estate Services has extensive demonstrated experience in the development of affordable housing, with their senior associates having worked for local and county government entities as well as non-profit affordable housing development firms. They also have experience working with different departments at the State level, are knowledgeable about different sources of funding for affordable housing, are extremely adept at public outreach and collaboration, and have taken the time to familiarize themselves with the Del Mar community. They will bring a wealth of knowledge and expertise in the area of affordable housing that is much needed to supplement the City’s existing staff team. A copy of their proposal, including their professional resumes, is included for reference as Attachment B.
Staff recommends the City Council approve the Agreement (Attachment A) for an initial period beginning July 15, 2022 and ending on July 15, 2027, with the option to extend the agreement upon satisfactory service for an additional two-year period. 2 July 11, 2022 Item 10
City Council Agenda Report
As-Needed Affordable Housing Consulting Services
July 11, 2022
HOUSING IMPACT STATEMENT:
The consulting services contract will assist the City with implementation of housing programs contained in the 2021-2029 adopted Housing Element, most importantly the completion of Program 3A, which indicates a binding agreement with the State will be in place by December 2024 to allow for affordable housing to be built on the State Fairgrounds property.
FISCAL IMPACT:
There is no fiscal action to be taken by the City Council for this agenda item. Sufficient funds for as-needed affordable housing consultant services are available in the adopted FY 2022-23 Operating and Capital Budget. In addition, the City obtained Housing Acceleration Grant Funds that will be utilized for implementation of several housing element programs including allocating $125,000 for these as-needed consulting services focused on securing an agreement for housing on the Fairgrounds property.
ENVIRONMENTAL IMPACT:
The proposed City Council action does not constitute a “project” under the definition set forth in California Environmental Quality Act (CEQA) Guidelines Section 15378 because it will not have a potential to result in a direct or indirect physical change in the environment and is, therefore, not subject to CEQA. No further action under CEQA is required.
NEXUS TO CITY COUNCIL GOALS AND PRIORITIES:
This item relates to the certification and implementation of the 6th Cycle Housing Element for compliance with State Housing law, which is a City Council priority.
ATTACHMENTS:
Attachment A – Agreement with Whitaker Real Estate Services Attachment B – Proposal from Whitaker Real Estate Services 3 July 11, 2022 Item 10
PROFESSIONAL SERVICES AGREEMENT BETWEEN
THE CITY OF DEL MAR AND WHITAKER REAL ESTATE SERVICES
FOR AS-NEEDED AFFORDABLE HOUSING CONSULTING SERVICES
This Professional Services Agreement (“Agreement”) is made and entered into this 11 th day
of July, 2022 by and between the City of Del Mar, a Charter City and a municipal corporation (“City”), and Whitaker Real Estate Services (“Consultant”) (collectively “Parties”).
WHEREAS, the City desires to employ a consultant to provide as-needed affordable housing consulting services (“Consulting Services”). Said work is to be performed in accordance with the terms and conditions set forth below and as described in the scope of services, attached hereto as Exhibit “A” and incorporated herein; and
WHEREAS, the City has initially determined that Consultant is qualified by experience and ability to perform the services desired by City, and Consultant is willing to perform such services; and
WHEREAS, Consultant will conduct all the work as described and detailed in this Agreement to be provided to the City.
NOW, THEREFORE, the Parties hereto mutually covenant and agree with each other as follows:
1. CONSULTING SERVICES.
1.1 Scope of Services. The Consultant shall perform the Consulting Services as set forth in the written Scope of Services, attached hereto as Exhibit “A” and incorporated herein. Such services shall be provided at the direction of the City.
1.2. Project Coordinator. The Director of Planning & Community Development is hereby designated as the Project Coordinator for City and will monitor the progress and execution of this Agreement. Consultant shall assign a single Project Director to provide supervision and have overall responsibility for the progress and execution of this Agreement for Consultant. Senior Associate Dena Fuentes is hereby designated as the Project Director for Consultant. City shall provide Consultant access to appropriate staff and resources for the coordination and provision of services.
1.3. City Modification of Scope of Services. City may order changes to the Scope of Services within the general scope of this Agreement consisting of additions, deletions, or other revisions. If such changes cause a change in the Consultant’s cost of, or time required for, completion of the Scope of Services, an equitable adjustment to Consultant’s compensation and/or contract time shall be made, subject to the City’s approval. All such changes shall be authorized in writing, executed by Consultant and City. If such a change results in an extension of the term of this Agreement or increases the maximum amount to be paid under this Agreement, no such change shall have any force or effect unless an amendment to this Agreement is approved by the City Council.
4 July 11, 2022 Item 10
Consulting Services Agreement
For As-Needed Affordable Housing Consulting Services
2. DURATION OF AGREEMENT.
2.1 Term, Time for Performance. This Agreement shall be effective for a period of five years beginning on July 11, 2022 and ending on July 11, 2027. Upon written agreement of both Parties, this Agreement may be extended for an additional two-year period.
Time is of the essence for this Agreement and each provision of this Agreement, unless otherwise specified in this Agreement.
2.2 Delay. Any delay occasioned by causes beyond the control of Consultant may merit an extension of time for the completion of the Scope of Services. When such delay occurs, Consultant shall immediately notify the Project Coordinator in writing of the cause and the extent of the delay, whereupon the Project Coordinator shall ascertain the facts and the extent of the delay and grant an extension of time for the completion of the Consulting Services when justified by the circumstances provided that no extension of time shall be granted which would extend the time for performance beyond the date specified in section 2.1 above.
2.3 City’s Right to Terminate for Default. Should Consultant be in default of any covenant or condition hereof, City may immediately terminate this Agreement for cause if Consultant fails to cure the default within ten (10) calendar days of receiving written notice of the default.
2.4 City’s Right to Terminate without Cause. Without limiting its rights in the event of Consultant’s default, City may terminate this Agreement, without cause, by giving written notice to Consultant. Such termination shall be effective upon receipt of the written notice.
Consultant shall be compensated for all effort and material expended on behalf of City under the terms of this Agreement, up to the effective date of termination. All personal property remaining in City facilities or on City property thirty (30) days after the expiration or termination of this Agreement shall be, at City’s election, considered the property of City.
3. PERFORMANCE AFTER TERMINATION. Upon termination of this Agreement as provided herein, Consultant shall, within such reasonable time period as may be directed by City Manager, complete those items of work which are in various stages of completion and which City Manager determines are necessary to be completed by Consultant to allow the project to be completed in a timely, logical, and orderly manner. Upon termination, all finished or unfinished documents, data, studies, surveys, drawings, models, photographs, reports, and other materials prepared by Consultant shall be delivered to the City Manager, upon his request, as property of City.
4. COMPENSATION.
4.1 Total Amount. Compensation to Consultant shall be provided in accordance with the rates described in the Fee Schedule contained in Exhibit “B” and incorporated herein. Consultant shall bill the City for work provided and shall present a written request for such payment monthly. City shall pay all invoices in arrears and shall in no event be required to pay for any services provided by Consultant in advance. Consultant acknowledges that it is not guaranteed any particular amount of work.
4.2 Additional Services. City may, as the need arises or in the event of an emergency, request additional services of Consultant. Should such additional services be 5 July 11, 2022 Item 10
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required, Compensation therefore shall be paid to the Consultant in accordance with Scope of Services contained in Exhibit “A.” City and Consultant shall agree to the costs prior to commencement of such work.
5. INDEPENDENT CONTRACTOR. Consultant is, for all purposes arising out of this Agreement, an independent contractor. The Consultant has and shall retain the right to exercise full control and supervision of all persons assisting the Consultant in the performance of said services hereunder, the City only being concerned with the finished results of the work being performed. Neither Consultant nor Consultant’s employees shall in any event be entitled to any benefits to which City employees are entitled, including, but not limited to, overtime, any retirement benefits, workers’ compensation benefits, any injury leave or other leave benefits, Consultant being solely responsible for all such matters, as well as, compliance with social security and income tax withholding and all other regulations and laws governing such matters.
6. STATEMENT OF EXPERIENCE. Consultant agrees that it has the financial resources, service experience, completion ability, personnel, and experience in dealing with public agencies necessary for performing the Scope of Services and that such performance shall be in accordance with the standards customarily adhered to by an experienced and competent Consultant using the degree of care and skill ordinarily exercised by reputable Consultants practicing in the same field of service in the State of California. By executing this Agreement, Consultant represents that it has demonstrated trustworthiness and possesses the quality, fitness, and capacity to perform the Agreement in a manner satisfactory to City. Additionally, Consultant and all of Consultant’s employees or agents shall secure and maintain in force such permits and licenses as are required by law in connection with the furnishing of services pursuant to this Agreement.
7. AUDIT OF RECORDS.
7.1 At any time during normal business hours and as often as may be deemed necessary, the Consultant shall make available to a representative of City for examination all of its records with respect to all matters covered by this Agreement and shall permit City to audit, examine, and/or reproduce such records. Consultant shall retain such financial and program service records for at least four (4) years after termination or final payment under this Agreement.
7.2 The Consultant shall include the City’s right to audit under this section in any and all of their subcontracts and shall ensure that these sections are binding upon all subcontractors.
8. CONFIDENTIALITY. All Consulting services performed by Consultant, including, but not limited to, all drafts, data, correspondence, proposals, reports, research and estimates compiled or composed by Consultant, pursuant to this Agreement, are for the sole use of the City, its agents and employees. Neither the documents nor their contents shall be released to any third party without the prior written consent of the City. This provision does not apply to information that (a) was publicly known, or otherwise known to Consultant, at the time that it was disclosed to Consultant by the City, (b) subsequently becomes publicly known through no act or omission of Consultant or (c) otherwise becomes known to Consultant other than through disclosure by the City. Except for any subcontractors that may be allowed upon prior agreement, neither the documents nor their contents shall be released to any third party without the prior written consent of the City. The sole purpose of this section is to prevent disclosure of City’s confidential and proprietary information by Consultant or subcontractors. 6 July 11, 2022 Item 10
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9. CONFLICTS OF INTEREST.
9.1 Consultant shall at all times comply with all federal, state and local conflict of interest laws, regulations, and policies applicable to public contracts and procurement practices, including, but not limited to, California Government Code §§ 81000 et seq. (Political Reform Act) and §§ 1090 et seq. Consultant shall immediately disqualify itself and shall not use its official position to influence in any way any matter coming before the City in which the Consultant has a financial interest as defined in Government Code § 87103. Consultant represents that it has no knowledge of any financial interests, which would require it to disqualify itself from any matter on which it might perform services for the City.
9.2 Consultant shall comply with all of the reporting requirements of the Political Reform Act. The Consultant shall file a Fair Political Practices Commission Form 700 (Assuming Office Statement) within thirty (30) calendar days of the City’s determination that the Consultant is subject to a conflict of interest code, if applicable. The Consultant shall also file a Form 700 (Annual Statement) on or before April 1, disclosing any financial interests held during the previous calendar year for which the Consultant was subject to a conflict of interest code.
9.3 If, in performing the Consulting Services set forth in this Agreement, the Consultant makes, or participates in, a “governmental decision” as described in Title 2, section 18701(a)(2) of the California Code of Regulations, or performs the same or substantially all the same duties for the City that would otherwise be performed by a City employee holding a position specified in the department's conflict of interest code, the Consultant shall be subject to a conflict of interest code requiring the completion of one or more statements of economic interests disclosing the Consultant’s relevant financial interests.
10. OWNERSHIP OF DOCUMENTS. All documents, data, studies, drawings, maps, models, photographs and reports prepared by Consultant under this Agreement shall be considered the property of City. Consultant shall be permitted to reference and use said materials for use in future studies, work, and marketing so long as said materials are considered “public documents” and are not subject to attorney-client privilege, or the subject of pending closed or executive session discussions.
11. INSURANCE
11.1 Consultant shall procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder and the results of that work by the Consultant, their agents, representatives, employees or subcontractors. Insurance shall be placed with insurers with a current A.M. Best’s rating of no less than “A” and “VII” and are admitted to do business in the State of California, unless otherwise approved in writing by the City’s Risk Manager.
11.2 Consultant’s liabilities, including but not limited to Consultant’s indemnity obligations, under this Agreement, shall not be deemed limited in any way to the insurance coverage required herein. All policies of insurance required hereunder must provide that the City is entitled to thirty (30) days prior written notice (ten (10) days for cancellation due to non-payment of premium) of cancellation or non-renewal of the policy or policies. Maintenance of specified insurance coverage is a material element of this Agreement. 7 July 11, 2022 Item 10
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11.3 Types and Amounts Required. Consultant shall maintain, at minimum, the following insurance coverage for the duration of this Agreement:
11.3.1 Commercial General Liability (CGL). Insurance written on an ISO Occurrence form CG 00 01 07 98 or equivalent providing coverage at least as broad which shall cover liability arising from any and all personal injury or property damage in the amount of $1,000,000 per occurrence and subject to an annual aggregate of $2,000,000. There shall be no endorsement or modification of the CGL limiting the scope of coverage for either insured vs. insured claims or contractual liability. All defense costs shall be outside the limits of the policy.
11.3.2 Commercial Automobile Liability. For all of the Consultant's automobiles including owned, hired and non-owned automobiles, automobile insurance written on an ISO form CA 00 01 12 90 or a later version of this form or an equivalent form providing coverage at least as broad for bodily injury and property damage for a combined single limit of $300,000 per occurrence. Insurance certificate shall reflect coverage for any automobile (any auto).
11.3.3 Workers' Compensation. For all of the Consultant's employees who are subject to this Agreement and to the extent required by applicable state or federal law, a Workers' Compensation policy providing at minimum $1,000,000 employers' liability coverage.
The Consultant shall provide an endorsement that the insurer waives the right of subrogation against the City and its respective elected officials, officers, employees, agents and representatives.
11.3.4 Consulting Liability. Consulting liability (errors and omissions) coverage with a limit of $1,000,000 per claim and $2,000,000 annual aggregate. The Consultant shall ensure both that (1) the policy retroactive date is on or before the date of commencement of the Scope of Services; and (2) the policy will be maintained in force for a period of three years after substantial completion of the Scope of Services or termination of this Agreement whichever occurs last. The Consultant agrees that for the time period defined above, there will be no changes or endorsements to the policy that increase the City's exposure to loss. All defense costs shall be outside the limits of the policy.
11.4 Deductibles and Self-Insured Retentions. Any deductibles or selfinsured retentions are the responsibility of the Consultant and must be declared to and approved by the City. At the option of the City, either (1) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the City, its officers, officials, employees, and volunteers, or (2) the Consultant shall provide a financial guarantee satisfactory to the City guaranteeing payment of losses and related investigations, claim administration, and defense expenses.
11.5 Additional Required Provisions. The commercial general liability and automobile liability policies shall contain, or be endorsed to contain, the following provisions:
11.5.1 The City, its officers, officials, employees, and representatives shall be named as additional insureds. The City's Additional Insured status must be reflected on additional insured endorsement form which shall be submitted to the City. 8 July 11, 2022 Item 10
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11.5.2 The policies are primary and non-contributory to any insurance that may be carried by the City, as reflected in an endorsement which shall be submitted to the City.
11.6 Verification of Coverage. Consultant shall furnish the City with original certificates and amendatory endorsements effecting coverage required by this Section 11. The endorsement should be on forms provided by the City or on other than the City’s forms provided those endorsements conform to City requirements. All certificates and endorsements are to be received and approved by the City before work commences. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements affecting the coverage required by these specifications at any time.
12. DEFENSE AND INDEMNIFICATION.
12.1 Consultant agrees to indemnify, defend (with attorneys approved by City), and hold harmless the City, and its officers, officials, agents and employees (the “Indemnified Parties”) from any and all claims, demands, costs or liability that arise out of, or pertain to, or relate to the Consultant, its employees, agents, and subcontractors performance of services under this Agreement. Consultant’s duty to indemnify under this section shall not include liability for damages for death or bodily injury to persons, injury to property, or other loss, damage or expense arising from the sole negligence or willful misconduct by the City or its elected officials, officers, agents, and employees. Consultant's indemnification obligations shall not be limited by the insurance provisions of this Agreement. The Parties expressly agree that any payment, attorney's fees, costs or expense City incurs or makes to or on behalf of an injured employee under the City's self-administered workers' compensation is included as a loss, expense, or cost for the purposes of this section, and that this section will survive the expiration or early termination of this Agreement.
12.2 This indemnity is in addition to any other rights or remedies which City may have under the law or this Agreement. In the event of any claim or demand made against any party which is entitled to be indemnified hereunder, City may, at its sole discretion, reserve, retain or apply any monies due to Consultant under this Agreement for the purpose of resolving such claims; provided however, that City may release such funds if Consultant provides City with reasonable assurances of protection of the City's interest. The City shall, in its sole discretion determine whether such assurances are reasonable.
12.3 Consultant agrees that its duty to defend arises upon an allegation of liability based upon the performance of services under this Agreement by Consultant, its officers, agents, representatives, employees, sub-consultants, or anyone for whom Consultant is liable and that an adjudication of Consultant’s liability is not a condition precedent to Consultant's duty to defend.
13. SUBCONTRACTORS.
13.1 The Consultant’s hiring or retaining of third parties (i.e. subcontractors) to perform services related to the Project is subject to prior approval by the City.
13.2 All contracts entered into between the Consultant and its subcontractor shall also provide that each subcontractor shall obtain insurance policies, which shall be kept in full force and effect during any and all work on this Project and for the duration of this Agreement.
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Agreement in the amounts required by the City, which shall not be greater than the amounts required of the Consultant.
13.3 In any dispute between the Consultant and its subconsultants, the City shall not be made a party to any judicial or administrative proceeding to resolve the dispute. The Consultant agrees to defend and indemnify the City as described in section 12 of this Agreement should the City be made a party to any judicial or administrative proceeding to resolve any such dispute or should the City incur any costs in responding to third-party discovery requests.
14. NON-DISCRIMINATION. Consultant shall not discriminate against any employee or applicant for employment because of race, color, religion, sex, national origin, ancestry, physical or mental disability, medical condition, genetic information, marital status, military or veteran status, gender, gender identity, gender expression, sexual orientation, or any other class protected under state, federal, or local law. Consultant shall take affirmative action to insure that applicants are employed and that employees are treated during employment without regard to any class or category protected under state, federal, or local law and shall make reasonable accommodation to qualified individuals with disabilities. Such action shall include, but not be limited to, the following: employment, upgrading, demotion, transfer, recruitment, or recruitment advertising, layoff or termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship. Consultant agrees to post in conspicuous places available to employees and applicants for employment any notices provided by City setting forth the provisions of this non-discrimination clause.
15. NOTICES. All communications to either party by the other party shall be delivered to the persons listed below. Any such written communications by mail shall be conclusively deemed to have been received by the addressee five (5) calendar days after the deposit thereof in the United States Mail, postage prepaid and properly addressed as noted below.
If to City: If to Consultant
City of Del Mar Patricia Whitaker
City Clerk Chief Executive Officer/Director
1050 Camino del Mar 10830 CR 214
Del Mar, CA 92014 Tyler, TX 75707
[email protected] [email protected]
16 ASSIGNABILITY. This Agreement and any portion thereof shall not be assigned or transferred, nor shall any of the Consultant’s duties be delegated or sub-contracted, without the express written consent of the City.
17. RESPONSIBILITY FOR EQUIPMENT. City shall not be responsible nor held liable for any damage to persons or property consequent upon the use, misuse, or failure of any equipment used by Consultant or any of Consultant’s employees or subcontractors, even if such equipment has been furnished, rented, or loaned to Consultant by City. The acceptance or use of any such equipment by Consultant, Consultant’s employees, or subcontractors shall be construed to mean that Consultant accepts full responsibility for and agrees to exonerate, indemnify and hold harmless City from and against any and all claims for any damage whatsoever resulting from the use, misuse, or failure of such equipment.
18. CALIFORNIA LAW; VENUE/MISC. This Agreement shall be construed and interpreted according to the laws of the State of California. Any action brought to enforce or 10 July 11, 2022 Item 10
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interpret any portion of this Agreement shall be brought in the county of San Diego, California.
Consultant hereby waives any and all rights it might have pursuant to California Code of Civil Procedure section 394.
19. COMPLIANCE WITH LAWS. The Consultant shall comply with all laws, ordinances, regulations, and policies of the federal, state, and local governments applicable to this Agreement, including California Labor Code section 1720, et seq., relating to payment of prevailing wages for public works projects, if applicable. Consultant shall indemnify and defend the Indemnified Parties from and against any liability incurred due to any failure on the part of Consultant to comply with any applicable Laws.
To the extent Consultant is required to comply with prevailing wage requirements, Consultant does hereby acknowledge that they are aware of, have read, and understand the terms and implications of SB 854 and Consultant and any subconsultants ensure that they are familiar with and comply with its requirements. Such requirements include, but are not limited to, the registration requirement with the Department of Industrial Relations, State of California (DIR), pursuant to Labor Code section 1725.5. As of March 1, 2015, in compliance with SB 854, the City requires all affected contractors and consultants to be registered with the DIR prior to submitting a bid or proposal on any eligible District project. As of April 1, 2015, failure to comply with the requirements of SB 854 by any contractor or consultant, including registration with the DIR pursuant to Labor Code section 1725.5, shall be a material breach of this Agreement which may be terminated by the City in its sole and absolute discretion. Where applicable, this project is subject to compliance monitoring and enforcement by the DIR.
20. CONSULTANT’S CERTIFICATION OF AWARENESS OF IMMIGRATION REFORM AND CONTROL ACT OF 1986. Consultant certifies that Consultant is aware of the requirements of the Immigration Reform and Control Act of 1986 (8 USC §§ 1101-1525) and has complied and will comply with these requirements, including, but not limited to, verifying the eligibility for employment of all agents, employees, subcontractors, and consultants that are included in this Agreement.
21. ENTIRE AGREEMENT. This Agreement sets forth the entire understanding of the Parties with respect to the subject matters herein. There are no other understandings, terms or other agreements expressed or implied, oral or written, except as set forth herein.
22. AMENDMENTS. This Agreement may be modified or amended only by a written document executed by both Consultant and City and approved as to form by the City Attorney.
No change, alteration, or modification of the terms or conditions of this Agreement, and no verbal understanding of the Parties, their officers, agents, or employees shall be valid unless agreed to in writing by both Parties.
23. NO WAIVER. No failure of either the City or the Consultant to insist upon the strict performance by the other of any covenant, term or condition of this Agreement, nor any failure to exercise any right or remedy consequent upon a breach of any covenant, term, or condition of this Agreement shall constitute a waiver of any such breach of such covenant, term or condition.
24. SEVERABILITY. The unenforceability, invalidity, or illegality of any provision of this Agreement shall not render any other provision unenforceable, invalid, or illegal. 11 July 11, 2022 Item 10
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25. DRAFTING AMBIGUITIES. The Parties agree that they are aware that they have the right to be advised by counsel with respect to the negotiations, terms and conditions of this Agreement, and the decision of whether or not to seek advice of counsel with respect to this Agreement is a decision which is the sole responsibility of each Party. This Agreement shall not be construed in favor of or against either Party by reason of the extent to which each Party participated in the drafting of the Agreement.
26. LEGAL FEES. In the event of the bringing of any action or suit by either party hereto against the other party hereunder to enforce or interpret any of the provisions, covenants or conditions of this Agreement, or arising out of any tortuous conduct by either party incident to this Agreement, the prevailing party in such action or suit shall be entitled to recover all costs and expenses of suit, including reasonable attorneys' fees. In any action or suit brought to enforce this Agreement, the damages available shall be limited to specific performance or other such equitable relief that the court may order.
27. CONFLICTS BETWEEN TERMS. If an apparent conflict or inconsistency exists between the main body of this Agreement and the Exhibits, the main body of this Agreement shall control. If a conflict exists between an applicable federal, state, or local law, rule, regulation, order, or code and this Agreement, the law, rule, regulation, order, or code shall control. Varying degrees of stringency among the main body of this Agreement, the Exhibits, and laws, rules, regulations, orders, or codes are not deemed conflicts, and the most stringent requirement shall control. Each Party shall notify the other immediately upon the identification of any apparent conflict or inconsistency concerning this Agreement.
28. EXHIBITS INCORPORATED. All Exhibits referenced in this Agreement are incorporated into the Agreement by this reference.
29. SIGNING AUTHORITY. The representative for each Party signing on behalf of a corporation, partnership, joint venture, or governmental entity hereby declares that authority has been obtained to sign on behalf of the corporation, partnership, joint venture, or entity and agrees to hold the other Party or Parties hereto harmless if it is later determined that such authority does not exist.
[SIGNATURES ON THE FOLLOWING PAGE]
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement the day and year first hereinabove written.
CITY OF DEL MAR,
a municipal corporation
By: ____________________________
Ashley Jones, City Manager
WHITAKER REAL ESTATE SERVICES
By: _____________________________
Patricia Whitaker, Chief Executive
Officer/Director
ATTEST:
_____________________________________
Sarah Krietor, Administrative Services
Manager/City Clerk
APPROVED AS TO FORM:
_______________________________
Leslie E. Devaney, City Attorney
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EXHIBIT “A”
SCOPE OF SERVICES
During the term of this Agreement, Consultant shall provide the following services on an asneeded basis to the City:
1. Implementation of Housing Element Action Programs
Advise on and assist with implementation of the City’s Housing Element Action Programs, assisting with the evaluation of options and identification of a path to approval that can best meet housing objectives taking into consideration applicable land use, economic conditions, financial resources, special needs issues, and State Housing law. Examples where advice may be needed to meet State law relate to the topic areas of Density Bonus, Inclusionary Housing, Condominium Conversions, Accessory Dwelling Units, Residential Care Facilities, Emergency Shelters, Transitional Housing, Supportive Housing, Single Room Occupancy Units, and Low Barrier Navigation Centers.
2. Ongoing Programs to Promote Housing Resources and Assistance Opportunities Provide as-needed administrative functions including creation of policies, procedures, and other materials, as well as performing reviews of the City’s ongoing housing resources/assistance programs to include in the required annual progress reports and ensure that best industry practices are used in achieving affordable housing objectives.
Examples where assistance may be needed include housing funding resources, interfaith partnership opportunities, resources and assistance for persons with disabilities, opportunities related to the County Housing Choice Voucher program, monitoring and response to complaints, senior housing resources and assistance, student housing resources and assistance, and maintenance of database of community assistance programs.
3. Preparation and Negotiation of Development-Related Documents Advise and assist with preparation of housing related Requests for Interest (RFI) and Requests for Proposals (RFP); negotiate and assist with preparation of memorandums of understanding, development agreements, and other related documents; facilitate and coordinate meetings with key stakeholders, developers, and consultants in order to facilitate development of affordable housing on the State-owned Fairgrounds property and a few small City-owned sites.
Some potential work assignments include helping the City participate in and provide information for the 22nd DAA’s strategic planning process for the State Fairgrounds; promoting the City’s vision for incorporation of affordable housing at the Fairgrounds; helping to develop a plan to facilitate construction of affordable housing units; design a process for and conduct public outreach to assist with execution of an agreement with the State 22nd DAA to build affordable housing on the State Fairgrounds property per Housing Element Program 3A; assist with the development and issuance of Requests for Interest and Proposals from the development community; explore potential partnerships with the non-profit affordable housing community; assist the City with applying for grants or other sources of funding; and other work as applicable to the objective to secure an agreement with the 22nd DAA for housing within the timeframe required by the 6th Cycle Housing Element.
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4. Financial Pro Forma Analyses and Developing/Identifying Financing Strategies Perform technical reviews of financial pro forma analyses to determine the extent and form of financial assistance needed to bring affordable housing projects to fruition including, but not limited to, economic and fiscal impact analyses, financial reviews, deal structuring, developer negotiations, and implementation strategies using local, state, and federal funding sources.
5. Site Evaluation and Property Disposition
Advise on potential assembling sites, soliciting developer proposals, and negotiating disposition agreements for developing single-family ownership and multifamily rental projects and mixed-use developments.
6. Property Acquisition and Relocation Services
Advise on potential property acquisitions including right-of-way easements, single parcel acquisitions, assembling sites to facilitate redevelopment, acquiring residential, commercial, office, and industrial properties, and relocation services.
7. General As-Needed Housing Consulting Services
The City may engage Consultant on an as-needed basis for any and all housing related work as may be needed in order to accomplish the goals and objectives included in the City’s Housing Element and overall City Council approved work plan. 15 July 11, 2022 Item 10
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EXHIBIT “B”
FEE SCHEDULE
During the term of this Agreement, City agrees to compensate Consultant, hereinafter referred to as WRES, as follows:
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Whitaker Real Estate Services 1 | P a g e M a y 2 7 , 2 0 2 2 May 27, 2022
Ms. Karen Brindley
City of Del Mar
Planning and Community Development Director
1050 Camino del Mar
Del Mar, CA 92014
Dear Ms. Brindley:
RE: Request for Qualifications for As-Need Affordable Housing Consulting Services Thank you for considering Whitaker Real Estate Services Inc. (WRES) to provide comprehensive professional consulting services related to affordable housing which may include, but not be limited to, strategic thinking and recommendations on how to successfully pursue and implement development of affordable housing considering the constraints and opportunities in Del Mar.
As you will see from our attached proposal and personal resumes, WRES has extensive experience undertaking review of economic and fiscal impact analyses; deal structuring; developer negotiations; identification of local, state, and federal funding sources; development of requests for interest or proposals for potential development partners and/or specialized technical consulting services; shepherding projects through the entitlement and construction process; and as-needed administrative functions related to affordable housing programs implementation.
Whitaker Real Estate Services Inc. is a real estate consulting firm specializing in Strategic Formation of non-profit, for-profit, government entity partnerships, financing, resident services, and development and financing of affordable housing. This is a woman-owned company lead by Patricia C. Whitaker. WRES has over 40 years and more than a billion dollars of affordable housing transactional experience. Its team has helped steer public policy decisions, utilize new lending products, manage complex structured financing, developed resident services programs in support of affordable housing, and facilitated acquisition, entitlement, and financing of affordable housing developments. Additionally, WRES is experienced in the facilitation and development of infrastructure projects, public facilities, commercial, office and industrial development. The Patricia C. Whitaker and Dena Fuentes are the team members to be assigned to providing services to the City of Del Mar. Ms. Fuentes will be the lead senior associate to manage day to day contractual activities.
Together, our team has experience in serving various municipal governments in executive leadership roles. We have worked in concert with executive directors, city managers, city councils and the public in 17 July 11, 2022 Item 10
Whitaker Real Estate Services 2 | P a g e M a y 2 7 , 2 0 2 2 the development and implementation of public policy programs resulting in the implementation of affordable housing projects and programs. Our team has a wealth of experience with a well-seasoned understanding of how city governments effectively utilize the public process to synthesize policy and implement that policy into the vision and goals shared with council, business, and public stakeholders.
Due to the physical size of the city, there are several challenges which must be addressed to meet the State of California Housing Element mandates to create affordable housing. WRES proposal illustrates the firm’s experience in all aspects the City of Del Mar is seeking for As-Need Affordable Housing Consulting Services.
Thank you in advance for the opportunity to submit a response to the Request for Qualifications (no. 2022-03) As-Need Affordable Housing Consulting Services. Whitaker Real Estate Services Inc. looks forward to addressing any questions you may have.
Thank you for your consideration,
Patricia C. Whitaker Dena Fuentes
Patricia C. Whitaker Dena Fuentes
714-393-2993 760-809-9249
[email protected] [email protected]
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Whitaker Real Estate Services 3 | P a g e M a y 2 7 , 2 0 2 2 City of Del Mar
As-Need Affordable Housing Consulting Services
Statement of Qualifications
The Whitaker Real Estate Services Inc. (WRES) proposal responds to the five components outlined in the Request for Qualifications (RFQ). The components include:
• Overview of the Consultant
• Qualifications and Experience
• Client References
• Compensation
• Acceptance of or Requested Changes to the City’s Standard Agreement Consultant Overview
The City of Del Mar is looking to partner with a consulting firm who can provide a comprehensive set of services for the development and implementation of an affordable housing program to implement the goals and objectives in the pre-certified Housing Element to meet the State mandates. Because of the City’s geographical size, the development of new affordable housing presents unique challenges coupled with the limited direct affordable housing entitlement funds. This coupled with a highly specialized field with ever changing laws, regulations and funding resources creates additional challenges for a smaller community. Whitaker Real Estate Services Inc. is poised to compliment the City of Del Mar in implementing their affordable housing program.
Patricia Whitaker, who is the representative authorized to execute the agreement and is the Management Contact. Dena Fuentes will be the representative responsible for day-to-day management of the Agreement. Their contact information is below.
Patricia Whitaker Dena Fuentes
Chief Executive Officer/Director Senior Associate
10830 CR 214, Tyler TX 75707 10830 CR 214, Tyler TX 75707 Works Remote from Temecula
CA
[email protected]
714.393.2993
[email protected]
760.809.9249
Patricia Whitaker is a versatile motivated and entrepreneurial minded real estate executive offering thirty plus years of real estate acquisition, asset management, contract administration, and business development experience. Ms. Whitaker consistently demonstrates superior opportunity identification abilities, exceptional negotiation skills, and strong business acumen in the real estate field. She highly values collaborating with stakeholders to accomplish organizational mission, translating objectives into actionable plans, and providing decisive strategies to meet investment goals. Ms. Whitaker has held roles in both the public and private sectors. She is the CEO and director of WRES. Previously she was the senior vice president for National Core Renaissance, a nonprofit affordable housing developer, and was the president and CEO of Innovative Housing Opportunities non-profit developer. Prior to her transition into 19 July 11, 2022 Item 10
Whitaker Real Estate Services 4 | P a g e M a y 2 7 , 2 0 2 2 the private sector, she spent ten years as the City of Santa Ana the executive director of economic development redevelopment and affordable housing agency. The breadth of Ms. Whitaker's experience provides insight into both the public sector challenges of developing affordable housing and the private sector motivations and economic strategies to build and manage affordable housing.
Dena Fuentes is a motivated, personable business professional with a successful 37-year history of marketing municipal assets, leveraging limited resources, and implementing successful attraction of private investment to facilitate commercial revitalization and affordable housing development. She is an expert in utilizing public sector resources as financial tools to undertake community revitalization, economic development, and create affordable communities. She achieves results through strategic marketing, leveraging of public resources, creating relationships with investors, and collaborating with the community as she assists the executive leadership transition the policy of the legislative body to transactional results. Ms. Fuentes has outstanding achievements in fiscal management, contract negotiations, community relationships, and project implementation. She effectively creates relationships with elected officials, private investors, community stakeholders, and other governmental entities.
Both Ms. Whitaker and Fuentes have a considerable number of resources and relationships with the State of California, United States Department of Housing and Urban Development, and affordable housing development community. Together, they have collectively developed/finance thousands of affordable housing units. Many of the developments were very intricate and complex transactions. Resumes attached to the proposal.
Qualifications and Experience
In 2009, Whitaker Real Estate Services and is in Tyler Texas. Ms. Fuentes, senior associate in charge of contract implementation, is in Temecula California. Temecula is located thirty-seven miles from Del Mar City Hall. Ms. Fuentes has worked in a number of communities (Oxnard, Vista, and Poway) and recently retired from San Bernardino County as deputy executive officer over the Community Development and Housing Agency/Community Revitalization Group.
Per the RFQ, below is a brief description of the firm’s and senior associate’s experience in the following:
• Implementation of Housing Element Action Programs
• Ongoing Programs to Promote Housing Resources and Assistance Opportunities • Preparation and Negotiation of Development-Related Documents • Financial Pro Forma Analysis and Developing/Identifying Financing Strategies Implementation of Housing Element Action Programs
WRES has experience in the development of and implementation of Housing Elements with various governmental agencies. Typically, the Housing Element lead department is the Planning Department. The housing staff helps evaluate the Regional Housing Needs Assessment figures and the allocation of very low and moderate housing objectives with the goal of identifying sites that can accommodate the growth.
Within the Housing Element, WRES staff have participated in the development of the implementation programs. Ideally the Housing Element should be the investment and strategy road map to meet the local jurisdiction’s objectives. Currently, WRES is working with the City of Downey on developing an inclusionary housing ordinance. Ms. Fuentes has developed density bonus programs, and during her 20 July 11, 2022 Item 10
Whitaker Real Estate Services 5 | P a g e M a y 2 7 , 2 0 2 2 tenure with San Bernardino County she facilitated the financing of Emergency Shelters, Transitional Housing, Permanent Supportive Housing and Low Barrier Navigation Centers.
Ongoing Programs to Promote Housing Resources and Assistance Opportunities The intracieis of affordable housing development is the understanding of the objective the local community is trying to achieve. This includes the target population, levels of affordability, project entitlement, project management, and how to layer the various affordable housing resources while clearly understanding the requirements and the risk to the city. WRES has experience both in the private and the non-profit development sectors. As listed above, there are a tremendous amount of housing financial resources, with more financial programs being created by the State of California. However, the resources have conflicting regulations that make layering the funds a challenge. Ms. Fuentes and Ms.
Whitaker have successfully demonstrated their knowledge and aptitude with proven results. WRES is experienced in utilized Housing Choice Voucher conversion to Project Based Vouchers to underwrite developments. Ms. Whitaker worked as an executive with Adobe Communities and oversaw 3,000 affordable rental housing units. This included developing and implement systems to deal with resident complaints.
Under Ms. Fuentes’ leadership, a number of permanent supportive housing developments and/or units were developed by San Bernardino County. She also facilitated financing of intake center and transitional housing in the City of Vista. All projects required layering of various financing resources which included HOME funds, HUD VASH Vouchers, grant from the Inland Empire Health Plan, State Low Income Housing Tax Credits, California Emergency Shelter and Housing, Veteran’s Homeless Housing Program, Mental Health Service Act funds, Community Development Block Grant, and HomeKey. As she left the County in 2022, there were five hundred units either being leasing, under construction or securing financing. Of these five hundred units, 20 percent were for homeless and special needs.
Preparation and Negotiations of Development-Related Documents Financial Proforma Analysis and Developing/Identifying Financing Strategies Site Evaluation and Property Disposition
Property Acquisition and Relocation Services
WRES is highlighting two projects to articulate our experience in the development of affordable housing development. Because Ms. Fuentes is the senior associate in charge of contract implementation, Bloomington and Arrowhead Grove projects provide an overview of the breadth of experience of the WRES senior associate assigned to conduct the Del Mar as-needed assignments. Both transactions were extraordinarily complex and required partnerships and collaboration with local officials, State and Federal agencies, financial institutions, and the community. WRES is experienced in all aspects of affordable housing development from land acquisition/relocation, developer selections, project design and entitlement, financing strategy, proforma analysis, real estate negotiations/documentation, and working with the decision-making bodies to obtain approvals which resulted in thousands of units being developed throughout various communities in the State of California.
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Whitaker Real Estate Services 6 | P a g e M a y 2 7 , 2 0 2 2 Bloomington Grove and Lilian Court
This is a 296 unit, three phased multi-generational and mixed-use development. This project was used as an anchor facilitating community revitalization of a County incorporated community. Within the development, a new library, community center and park were integrated into the revitalization effort along with the construction of a major sewer pipeline (sewer primarily do not exist in incorporated communities). As the County was venturing into developing housing for homeless and special populations, the County incorporated Mental Health Service Act (MHSA) funding for eleven clients who had severe and persistent mental illness and qualified for the Department of Behavior Health Services.
The County secured a $1.5 million grant from Inland Empire Health Plan (IEHP) to provide fifteen units dedicated to IEHP members who were high health cost utilizers and homeless. The number of funding sources layered into the various phases over the course of ten years was significant. The resources were both State and Federal funds and included former Redevelopment Housing Set Aside bond proceeds.
The County purchased fifteen acres in the unincorporated Bloomington Community. The goal was to use housing as an economic and community revitalization vehicle. The acquisition process included procuring environmental site assessments, appraisals, title reports, and address any known conditions articulated by the studies. The properties had a few older homes and businesses. A relocation and replacement housing plan were prepared and implemented. As the properties were vacated, they were assessed for asbestos and lead base paint, remediated then demolished. All these items required procurement and approval by the Board of Supervisors.
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Whitaker Real Estate Services 7 | P a g e M a y 2 7 , 2 0 2 2 Because the County did not have design guidelines, the housing and planning departments had to create guidelines that would be the basis of issuing a Request for Qualifications (RFQ). A RFQ was issued, and the County entered into an Exclusive Negotiations Agreement with Related of California/LaBarge Industries (Related). In partnership with Related, the County undertook a community-based design process to articulate the architecture. Not only did the County/Related need to entitle the property, but they also had to obtain sewer treatment services through and interagency agreement that had to be approved by the City of Rialto and the Local Area Formation Agency (LAFCO). The project was designed and received planning commission approvals in nine months.
The team created a financing strategy for the first phase, which included a 10,000 square foot library, new sewer trunk line, MHSA clients, and expanding water lines. Housing was purposely built over the library to allow some of the housing specific funding to pay for a portion of the library and land. The project layered with Low Income Housing Tax Credits, Community Development Block Grant, Housing Set Aside Bonds, Mental Health Service Act bonds, and HUD resources. The transaction was a long-term ground lease which allowed the County to have ownership after 57 years. All phases were based on a long-term lease in which the County retained land ownership.
Ms. Fuentes led the team who analyzed the proforma, negotiated the real estate agreements, obtain city, LAFCO, and County approvals. The County team included Keyser Marsten Associates and Goldfarb Lipman. This team also facilitated the construction and permeant financing closings.
Subsequently, the second and third phases were constructed. The third phase included the closure and relocation of Ayala Park. This required the State to approve legislation authorizing the relocation and coordination with the State Park Department. Ms. Fuentes met with the local assemblywoman who was carrying the legislation and the State Park Department staff who prepared the agreement to implement the park relocation.
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Whitaker Real Estate Services 8 | P a g e M a y 2 7 , 2 0 2 2 Arrowhead Grove
National Community Renaissance (National CORE), one of the nation’s largest affordable housing developers and the general contractor for the project, worked in partnership with the Housing Authority of the County of San Bernardino (HACSB), the County of San Bernardino and the City of San Bernardino to transform the Arrowhead Grove neighborhood. The underwriting goal was to terminated HUD ownership and transition to an affordable housing development. Arrowhead Grove, third phase, consisted of 147 affordable housing units and thirty-six market-rate units along with pedestrian and transit improvement to benefit the community at large.
Ms. Fuentes was the Deputy Executive Officer at the time who managed HACSB, the Community Development and Housing Department and the Office of Homeless Services. This project was an extraordinarily complex financing strategy based on converting a HUD-owned housing project to an affordable housing development, layers of federal funding from the County and the City, competition for 9% Low Income Housing Tax Credits but also securing a $20 million State of California Affordable Housing and Sustainable Communities (ASCH) funding.
ASCH program purpose was to finance affordable housing in locations and in a manner that would reduce greenhouse gas emissions. The program was managed the California Strategic Growth Council.
Unfortunately, it was truly clear from the program design that the competitive nature of the program would benefit large urban cities. Whereas communities located in the Inland Empire, where greenhouse gas emissions are significant, would not be competitive. Ms. Fuentes led a team of county staff, developers, consultants, and San Bernardino County Transportation Authority officials to dialog with the California Strategic Growth Council executive director regarding nature of the program design and the outcomes. California Strategic Growth Council modified the program in subsequent rounds to create a more equitable rating formula and goals. This resulted in Arrowhead Grove receiving $20 million of ASCH funds; the first in the Inland Empire.
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Whitaker Real Estate Services 9 | P a g e M a y 2 7 , 2 0 2 2 City of Del Mar
Per the RFQ there are two sites that are the basis of the Housing Element’s strategy to satisfy building the RHNA units allocated to the City. It is our understanding that the City does not have dedicated affordable housing financing resources nor owns the land. WRES would recommend partnering with the County of San Diego and the 3rd District Supervisor to obtain their support. The County manages the HOME, CDBG and Permanent Local Housing Assistance resources on behalf of the City. The County also has significant America Rescue Act funds that could be used depending on the target population. Also, partnering with the County Legislative Director to secure additional State funds or to see a direct project allocation would be worth exploring.
Client References
Quick summary of Agencies with whom Whitaker RE Services has supported Affordable Housing Development and facilitated development and services with Non-Profit and For-Profit Entities.
Name of agency: San Bernardino County
Name of Contact: Greg Devereaux (CEO: Retired)
Phone number: 909-641-9841
Summary of Work with this Agency:
The Bloomington project and Arrowhead Grove (project details included in proposal) were during Mr.
Devereaux’s tenure as CEO of the County. He will be the best contact to obtain information regarding Ms.
Fuentes. He has also worked with Pat Whitaker and WRES.
Name of agency: City of Anaheim
Name of Contact Individual: Grace Spector
Phone number: 714-765-4315
Summary of our Work with this Agency:
Whitaker RE Services worked on the implementation of a master plan for acquisition of substandard Multi-Family Properties, with consolidation of ownership under the Related Companies to implement a large strategic master plan.
Name of Agency: City of Stanton
Name of Contact Individual: Jared Hildenbrand, CM
Phone number: 949-707-2620
Jared, who was CM for Stanton and is now the City Manager of Laguna Hills. Stanton is waiting for new CM. Our work will be on hold until new appointment
Summary of our Work with this Agency
Whitaker Re Services worked with the city, Non-Profit Developers, National Core and For-Profit Developers, Brandywine Homes, in the implementation of a master plan to acquire, relocate and rebuild 25 July 11, 2022 Item 10
Whitaker Real Estate Services 10 | P a g e M a y 2 7 , 2 0 2 2 an entire community. Whitaker RE coordinated with the Community, Developers and City to implement the plan, which is still underway in the Tina Pacific Neighborhood.
Name of Agency: City of Downey
Name of Contact Individual. Aldo Schindler
Phone number and Email: 951-413-3000
This individual has recently left City of Stanton to the City of Moreno Valley as CD Director.
Summary of our work with Agency
Our work included identifying qualified For Profit and Non-Profit Developers in development of Workforce Housing. Our role included coordination with existing property owner, working through Historic Designation Challenges, and with For Profit Developer in the offer to purchase, design and future development.
For more detail and further discussion, please contact Whitaker Real Estate Services.
Compensation
WRES will prepare a scope and budget for city staff approval for each assignment based on the following hourly billing rates for each job classification:
• Senior associates $200 per hour
• Professional analyst, coordinators, and associates $150 per hour Related job expenses not including in the above rates are automobile mileage, parking fees, airfares, hotels and motels, meals, car rentals, taxis, delivery, electronic data processing, graphics and printing after city's prior approval can be related to job expenses and will be billed at 100% of cost. Monthly billing for staff and expenses occur during the period will be payable within 60 days of invoice date.
WRES is also open to negotiating a per fee assignment.
Acceptance of or Requested Changes to the City’s Standard Agreement WRES has no changes.
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Whitaker Real Estate Services 11 | P a g e M a y 2 7 , 2 0 2 2 Pat Whitaker Resume
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Whitaker Real Estate Services 12 | P a g e M a y 2 7 , 2 0 2 2 28 July 11, 2022 Item 10
Whitaker Real Estate Services 13 | P a g e M a y 2 7 , 2 0 2 2 Dena Fuentes
32078 Camino Guarda ◆ Temecula, Ca 92592 ◆ (760) 809-9249 ◆ [email protected] PROFILE __________________________________________________________________________ Motivated, personable business professional with multiple college degrees and a successful 37-year track record of marketing municipal assets, leveraging limited resources, and implementing successful attraction of private investment to facilitate commercial revitalization and affordable housing development. Expert in utilizing affordable housing financial tools to community and economic revitalization and creating affordable housing through strategic marketing, leveraging of public resources, creating relationships with investors, and collaborating with the community. Outstanding achievements in fiscal management, contract negotiations, community relationships, and project implementation. Effective in creating relationships with elected officials, private investors, community stakeholders, and other governmental entities. Excellent communicator, coupled with the ability to actively manage change.
Flexible and versatile – able to maintain a sense of humor under pressure. Poised and competent with demonstrated ability to easily transcend cultural differences. Thrives in deadline-driven environments. Excellent team-building skills.
SKILLS SUMMARY __________________________________________________________________ ◆ Project Management ◆ Community Relations ◆ Stimulating Economic ◆ Structuring Real Estate ◆ Leveraging Limited Reinvestment Transactions Resources ◆ Professional Presentations
◆ Creating Relationships with ◆ Staff Development ◆ Negotiations Skills Stakeholders ◆ Strategic Planning
PROFESSIONAL EXPERIENCE_______________________________________________________ Whittaker Real Estate Services
Consultant March 2022 – Present
Whitaker Real Estate Services (Whit RE Services), Inc. is a real estate consulting firm specializing in Strategic Formation of Non-Profit, For Profit, Government Entity Partnerships, Financing, Resident Services, and Development of Affordable Housing. Whit RE Services has over 40 years and more than a billion dollars of affordable housing transactional experience. Its team has helped steer public policy decisions, utilize new lending products, manage complex structured financing, and developed Resident Services Programs in support of affordable housing. Whit RE Services is experienced in the facilitation and development of infrastructure projects, public facilities, commercial, office and industrial development.
San Bernardino County, San Bernardino CA
Deputy Executive Officer May 2011 – Feb. 2022
Responsible for affordable housing, federal entitlement grants, redevelopment, Office of Homeless Services, and the Housing Authority of the County of San Bernardino. Total budget more than $3 million annual budget. During tenure facilitated the creation and financing of over 1,000 affordable housing units including permanent supportive housing for homeless population. Facilitated the dissolution of redevelopment for the County’s Successor Agency and provided support to the County as a lead agency to dissolve all the cities redevelopment agency as mandated by State. Lead Agency for the County’s Housing and Urban Development entitlement grants. This included the application on behalf of the Community Development Block Grant, HOME, and Emergency Shelter Grant with all participating cities.
Developed the Affordable Housing Investment Strategy for the leveraging of State and Federal housing grants to develop affordable housing in the County. Partnered with the cities and developers to finance development. Lead entity on the development of the Bloomington Community Revitalization Strategy (unincorporated community in San Bernardino County) to create the Bloomington Corridor Specific Plan and Environmental Impact Report, purchased fifteen acres of property to develop three hundred affordable units and the relocation of Ayala Park. The affordable 29 July 11, 2022 Item 10
Whitaker Real Estate Services 14 | P a g e M a y 2 7 , 2 0 2 2 housing developments included Mental Health Services Act housing and units for the Inland Empire Health Plan clients.
Worked with the Board of Supervisors and city partners to implement the Board Vision and policies.
City of Poway, Poway CA
As a cost saving measure for the city, assumed directorship of two distinct areas.
Director of Community Services April 2009 – February 2011 ◆ Managed a comprehensive family-based program, offering special events, facilities rentals, and services to over 15,000 residents annually.
◆ Responsible for $4.5 million budget, one hundred staff members, 500-member volunteer program and staff support to over twenty community groups.
Director of Redevelopment Services July 2006 – February 2011 ◆ Implemented Poway’s redevelopment, economic development, affordable housing programs, Community Development Block Grant, and management of Poway Royal Estates Mobile Home Park. The Paugay Redevelopment Project Area generates over $38 million of annual tax increment. ◆ Successfully attracted investor to purchase the city-owned Poway Royal Estates Mobile Home Park (Park).
Created a real estate structure which retired the Park’s existing debt, provided rental protections for existing residents, ensured $10 million of new capital improvements, generated $4 million repayment into the Redevelopment Agency’s Housing Fund, provided $1.8 million of immediate repayment to the City’s General Fund, and structured a $10 million 20-year note generating $500,000 of an annual interest only payments to the City’s General Fund.
◆ Attracted private investment to revitalize blighted vacant auto district properties. Leveraged $3 million of tax increment to attract over $45 million of private reinvestment creating two hundred permanent jobs and three hundred construction jobs. Utilized business relationships with Lowe’s Home Improvement Warehouse to facilitate the purchase of ten acres of auto properties which released Toyota of Poway’s from their 19-year lease. Toyota of Poway and the Poway Redevelopment Agency purchased five acres of vacant auto properties which will result in the renovation of the existing blighted buildings. ◆ Successfully lead award-winning affordable housing program. Attracted over $75 million of affordable housing investment which has or will result in over 250 primarily low and very low-income units. Affordable housing activities included new construction, acquisition, and rehabilitation of existing apartments, as well as the purchase of additional properties for future development. ◆ Implemented the Oak Knoll Community Revitalization Strategy. Included over $15 million in infrastructure upgrades, acquisition, and rehabilitation of two blighted apartment complexes to create long term affordable housing opportunities for low and very low-income households. Resulted in over three hundred construction jobs and $30 million of private investment.
◆ Commenced implementation of Poway’s Economic Development Action Plan. Initiated business retention and outreach program. Designed and conducted Poway’s Business Summit in an interactive community based setting. Initiated a business focus group series with Poway Business Park CEOs, distributors and manufacturing companies, retailers, and large property owner/brokers. ◆ Implemented the Poway Town Center and Community Park master planning efforts. Both efforts included interactive community-based visioning and Council workshops.
City of Vista, Vista CA
Redevelopment and Housing Director April 1998 – July 2006 ◆ Managed all aspects of day-to-day operations and implementation of a 2000-acre redevelopment project area, housing programs, administration of the CDBG/HOME programs, and the mobile home accord. Annual operating budget exceeded $14 million.
◆ Implemented the 40-acre Vista Village commercial development (400,000 square feet of GLA), anchored by the Krikorian Premiere Theaters and Lowe’s Home Improvement Warehouse. Managed all aspects of this project including, financing, property acquisition, relocation, remediation’s, developer negotiations, as well as the disposition and development agreement process. Leveraged $40 million of tax increment for private and public infrastructure to attract over $80 million of private investment and the creation of eight hundred jobs. Managed a collaborative team of private developers, planners, engineers, financial and real estate consultants, 30 July 11, 2022 Item 10
Whitaker Real Estate Services 15 | P a g e M a y 2 7 , 2 0 2 2 environmental remediation experts, relocation consultants, legal counsel, city manager’s office and the Redevelopment Agency.
◆ Created and implemented a community-based visioning process for the South Santa Fe/Mercantile Commercial Corridor, an older commercial center adjacent to Vista Village. Collaboratively managed the design team, engineers, and planning and economic development consultants in preparing a master plan which would be the road map for public and private investment. Goal was to complete a specific plan amendment, design guidelines, creation of an economic development action plan and a multi-year capital improvement program budget.
◆ Implemented the City’s affordable housing program and projects consisting of program development and leveraging of the City’s HOME, CDBG, state grant, and housing set aside funds. Created programs for new housing production, home ownership, housing rehabilitation, rental assistance, mortgage credit certificates and lease to own programs.
◆ Restructured a non-performing community facilities district (CFD) which was backed by the City’s General Fund. Obtained site control through the county property tax sale. Completed the restructuring of CFD debt and a double escrow to sell the property to the Redevelopment Agency and subsequently sell the property to the Olson Company for the development of 195 single family homes. Negotiated the disposition and development agreement (DDA) with an assignment of the DDA to Standard Pacific Homes. An upside profit sharing mechanism was built into the DDA structure which allowed the city to recoup $5 million of its investment in addition to structuring a loan with the redevelopment agency to absorb the $4.6 million land acquisition cost.
City of Oxnard, Oxnard, CA
Redevelopment Services Manager 1996 – 1998
Redevelopment Project Manager 1987 – 1996
Economic Development Analyst 1985 – 1987
◆ Managed four redevelopment project areas and created fifth project area comprising over 2,000 acres. The new project area would provide the financial means to redevelop an obsolete mall, two freeway interchanges, upgrade of Santa Clara 101 freeway bridge, and provide funding for an older commercial corridor.
EDUCATION________________________________________________________________________ Pepperdine University Masters in Business Administration, 1992 University of California, Santa Barbara Bachelor of Arts, Sociology, 1984 INTERESTS/ACHIEVEMENTS __________________________________________________________ ◆ California Redevelopment Association Board (2005 – 2011) ◆ California Redevelopment Association President-Elect (2011) ◆ Southwest Riverside County/San Diego County Redevelopment Alliance - Founder (2002 – 2011) ◆ Certified Trainer, Sentient Systems Corporation
REFERENCES AVAILABLE UPON REQUEST
32078 Camino Guarda ◆ Temecula, CA 92592 ◆ (760) 809-9249 ◆ [email protected] 31 July 11, 2022 Item 10
Whitaker Real Estate Services 16 | P a g e M a y 2 7 , 2 0 2 2 32 July 11, 2022 Item 10
City of Del Mar
Agenda Report
________________________________________________________________________________________________________ City Council Action:
TO: Honorable Mayor and City Council Members
FROM: Karen Brindley, Planning and Community Development Director Matt Bator, AICP, Principal Planner
Via Ashley Jones, City Manager
DATE: July 11, 2022
SUBJECT: Introduction of an Ordinance Approving a Development Agreement (DA 22- 001) and an Associated Regulatory Housing Agreement for a Mixed-Use Commercial and Residential Development Located at 941 Camino del Mar (APNs: 300-221-32 & 33)(“Property”).
REQUESTED ACTION/RECOMMENDATION:
That the City Council introduce the proposed Ordinance approving Development Agreement DA22-001 (Attachment A) and an associated Regulatory Housing Agreement for 941 Camino Del Mar (Exhibit C to Attachment A).
BACKGROUND:
In October 2016, the owners of 941 Camino del Mar and 307 10th Street submitted a Specific Plan (SP16-001) to the City commonly known as the 941 Camino Del Mar Specific Plan and associated entitlements to a two-story, 38,890 square-foot, mixed-use development that included eight residential units (including two dedicated as affordable to low-income households) and approximately 4,398 square-feet of commercial space. The Specific Plan also proposed “Exceptional Public Benefits” (EPBs) to justify the proposed deviations from the previously required development standards.
The proposed EPBs included:
Construction of one additional affordable housing unit in addition to the minimum number already required pursuant to the Specific Plan (totaling two affordable units).
Monetary contribution toward completion of the Camino Del Mar Streetscape Project in the amount of $35,000 or as approved by the City Council. Monetary contribution toward completion of the Shores Park Master Plan Project in the amount of $50,000 or as approved by the City Council. 1 July 11, 2022 Item 11
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Monetary contribution toward completion of the Safe Railroad Crossing and Coastal Rail Trail Project in the amount of $25,000 or as approved by the City Council.
Monetary contribution toward establishment and/or ongoing operation of a future City Shuttle System in the amount of $2,000 per year or as approved by the City Council.
Monetary contribution toward purchase of Speed Limit Radar Signs in the amount of $12,000 or as approved by the City Council.
Inclusion of Solar/Photovoltaic Paneling in final building design to reduce or offset development energy use.
Monetary contribution toward purchase of public art in the amount of $15,000 or as approved by the City Council.
The provision of Transient Occupancy Tax for any Residential Hospitality Uses of the market-rate units (non-affordable dwellings).
The monetary contributions outlined above to be provided to the City by the Developer together total $137,000.
Additional public benefits that would result from approval of the Specific Plan included:
Undergrounding of existing utility poles adjacent to the site. Construction of a new eight-inch sewer main in the Camino del Mar right-of-way to relocate an old sewer line which is outside of the current right-of-way. Construction of project-fronting streetscape improvements in addition to the monetary contribution.
Following public hearings on June 18 and July 2, 2018, the City Council certified a Supplemental Environmental Impact Report (SCH No. 2007091007) and approved the 941 Camino Del Mar Specific Plan (“941 Specific Plan”) and associated General Plan Amendment for the future development of the Property. The City Council’s approvals were subsequently ratified in November 2018 by a citywide vote carried out in accordance with the California Elections Code. All EPBs listed above were included in the adopted Specific Plan approved by the Del Mar electorate
Following approval of the 941 Specific Plan by the electorate, an associated Local Coastal Program Amendment (LCPA) was certified (approved) by the California Coastal Commission on May 9, 2019. A concurrent proposal for the previously described mixed2 July 11, 2022 Item 11 City Council Agenda Report
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use development consistent with the standards of the Specific Plan was approved on October 15, 2018, by the City Council (due to an appeal of the Design Review Board’s decision). The development proposal was not subject to the aforementioned public vote.
Section 1.5.4 of the 941 Specific Plan provides the City of Del Mar with the option to require a Development Agreement to memorialize and further vest the rights, public benefits (including EPBs), and operational requirements embodied within the Specific Plan. The City enacted this requirement as a condition of project approval pursuant to Design Review Permit DRB18-008 (itself approved via City Council Resolution 2018-71). The 941 Specific Plan also requires the approval and recordation of a Regulatory “Housing” Agreement for the restricted (affordable) housing units.
Planning Commission Action:
At a May 10, 2022, Planning Commission hearing, the proposed Development Agreement and its associated exhibits, including the required regulatory housing agreement for the two income restricted (affordable) dwelling units were presented for consistency with findings in accordance with Del Mar Municipal Code (DMMC) Section 24.65.100 (Development Agreements-Determination by Planning Commission). The Planning Commission unanimously recommended City Council approval of the Development Agreement, with direction to the City Attorney to: 1) provide language in the Development Agreement regarding the City’s ability to authorize assignment of the development to a new property owner; and 2) work with the property owner’s attorney to clarify language in the Housing Agreement grant deed that provides for the resetting of the 55 year affordability restriction with each sale of the affordable units.
DISCUSSION/ANALYSIS:
The documents discussed below were drafted by the City Attorney’s office and reviewed by special counsel with Goldfarb & Lipman, LLP who have an expertise in affordable housing.
941 Specific Plan Development Agreement
As required by City Council Resolution 2018-71, the Applicant (Property Owner) proposes to enter into a Development Agreement. A development agreement is a contract between the City and the property owner/developer which memorializes the rights, terms, benefits, and obligations of both parties, and is authorized by California Government Code sections 65864-65869.5. A development agreement expressly defines and vests the standards, laws, and procedures that govern a project, as well as time allowances, constraints, and deadlines. Depending on the scope of development, development agreements typically run for a period of 10 to 25 years. Procedurally, a development agreement is adopted by the City as an ordinance, is recorded with the property, and may only be modified with the mutual consent of all parties and is subject to annual reviews. The proposed 941 3 July 11, 2022 Item 11
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Specific Plan Development Agreement (“941 DA”) will be an exhibit of the adopted Ordinance, but it has been provided separately as Attachment B of this report for City Council’s review.
If adopted by the City Council as proposed, the 941 DA would have a term of 10 years and would “vest” all rights afforded to the developer for that period of time, including previously approved project entitlements (Design Review [DRB18-008], Coastal Development [CDP18-005], and Land Conservation [LC18-011] and Determination of Substantial Conformance [DSC20-020] Permits). Without an approved Development Agreement, the discretionary development entitlements would expire on October 15, 2022. In addition to other terms of the Development Agreement, the applicant will be obligated to submit the required monetary contributions to the City at the time the 941 DA is recorded with the County of San Diego, which will be approximately 30-days after City Council approval.
Regulatory Housing Agreement
The 941 Specific Plan also requires the Property Owner to enter into an affordable housing agreement, entitled “Regulatory Agreement and Declaration of Restrictive Covenants” (Regulatory Agreement), with the City for regulation of the two (2) affordable housing units. The 941 Specific Plan and the proposed Development Agreement allow the residential units and commercial space to become condominiums through the subsequent processing of a subdivision map. The property owners have declared their intention to process the tentative subdivision map and provide the affordable dwelling units as “for sale” condominiums. The Regulatory Agreement has been structured accordingly and is included as “DA Exhibit C” of the 941 DA. The Regulatory Agreement includes the following provisions:
The affordable units will be deed restricted for 55-years for low-income (80% of Area Median Income) households and will be made available as “for sale” condominium units;
Prior to completion of construction of the Project, the property owner (developer) cannot sell, transfer or dispose of the Property without obtaining written City consent;
City has first option to purchase units from Property Owner at the Restricted Sales Price (low income) or may assign its option to another public agency or non-profit corporation;
City can opt to purchase the affordable units. This option has been included in the event the City Council decides to purchase the affordable units and subsequently rent to income-qualified households. If the City Council decides the City should not 4 July 11, 2022 Item 11
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purchase the affordable units, the property owner will sell the units to income qualified buyers;
If sold to income qualified “First Buyer” instead of the City, property owner (developer) must adopt, submit and obtain approval from City of written purchaser selection policies and criteria (includes affirmative marketing plan, waiting list and written notification procedures to any rejected applicant including reason for rejecting the sale);
For the Second and Subsequent Sales of the affordable units by the First Buyer:
Unit must be sold to income qualified households and remain owner occupied; and;
Sales/Transfers are allowed but restricted to income qualified households for a 55 year period, which restarts upon the sale/transfer. Residential use only, owner occupied. Maximum two (2) people may occupy a 1- bedroom unit (both of the affordable units are 1 bedroom and range from 566 sq. ft. to 822 sq. ft. ;
No Short-Term Rental are allowed in affordable units; Owners of the affordable units must pay all taxes, Home Owners Association, and government fees; and
Procedures for any resale of the unit.
Each subsequent purchaser will be required to enter into and record with the County Recorder an Affordable Housing Occupancy, Refinancing and Resale Deed Restriction Agreement (in the form attached to the Regulatory Agreement as an exhibit) to ensure long term affordability.
Standards of Review (“Findings”) for Development Agreements.
The City’s Municipal Code (DMMC) Chapter 24.65 establishes procedures and requirements for the City’s consideration of development agreements. DMMC Section
24.65.140 contains the standards of review for City Council approval of a Development Agreement. This section states:
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:
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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.
Findings consistent with the provisions listed above have been included in the attached Ordinance (Attachment A).
HOUSING IMPACT STATEMENT:
This application is a request for City Council adoption of an Ordinance to approve a Development Agreement for a mixed-use development that includes eight residential units, two of which will be dedicated as affordable to low-income households. Included within the Development Agreement is a Regulatory (Housing) Agreement and restrictive covenants for regulation of the two affordable housing units, which will count towards the 6th Cycle Housing Element Regional Housing Needs Assessment (RHNA) allocation once building permits are issued for construction of the units.
FISCAL IMPACT:
There is no fiscal action to be taken by the City Council related to this agenda item. The Development Agreement would result in the contribution of $137,000 to the City as Exceptional Public Benefits for the various purposes cited on pages 1 & 2 of this report. The funds would be due to the City within 30 days of the Development Agreement recordation.
As such, the Fiscal Year 2022-2023 Operating and Capital Budget would be amended as part of the Midyear Budget Process to account for these revenues ENVIRONMENTAL STATUS:
A Supplemental Environmental Impact Report (SEIR – SCH No. 2007091007) was prepared and processed in accordance with the requirements of the California 6 July 11, 2022 Item 11
City Council Agenda Report
941 CDM Development Agreement
July 11, 2022
Environmental Quality Act (CEQA) and certified by the City of Del Mar City Council on June 12, 2018.
ATTACHMENTS:
Attachment A - City Council Ordinance for approval of DA22-001 Attachment B - May 10, 2022 Planning Commission Resolution No. PC-2022-04 Attachment C - Development Agreement DA22-001
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ATTACHMENT A
ORDINANCE NO.
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF DEL MAR, CALIFORNIA ADOPTING FINDINGS FOR
AND APPROVING A DEVELOPMENT AGREEMENT, DA22-
001, FOR A MIXED-USE COMMERCIAL AND RESIDENTIAL
DEVELOPMENT LOCATED AT 941 CAMINO DEL MAR
APNs: 300-221-32 & 300-221-33
WHEREAS, DM Asset Recovery LP (Property Owner) is the owner of that certain real property located in the City of Del Mar, County of San Diego, State of California commonly referred to as 941 Camino del Mar and 301 10th Street, APNs: 300-221-32 and 300-221-33 (the “Property”); and
WHEREAS, Property Owner submitted an application to the City of Del Mar (City) for approval of a Development Agreement and associated Regulatory Agreement for the affordable housing units between the Property Owner and the City to memorialize and further vest the rights, public benefits, including Exceptional Public Benefits (EPBs), and operational requirements for the construction and use of a new, two-story mixed-use structure to include approximately 4,398 square feet of commercial floor area, six marketrate residential units and two affordable residential units on land located at 941 Camino del Mar and 307 10th Street, Del Mar, California (“Property”); and WHEREAS, Development Agreements are subject to the provisions of California Government Code sections 85864-95869.5 and to the provisions of Del Mar Municipal Code Chapter 24.65; and
WHEREAS, to strengthen the public planning process, encourage private participation in comprehensive planning and reduce the economic risk of development, the Legislature of the State of California enacted California Government Code sections 65864 et seq. (the “Development Agreement Statute”), which authorizes City to enter into an agreement with any person having a legal or equitable interest in real property regarding the development of such property; and
WHEREAS, pursuant to the Development Agreement Statute, the City has adopted rules and regulations, embodied in Chapter 24.65 of the Del Mar Municipal Code, establishing procedures and requirements for adoption and execution of development agreements; and
WHEREAS, in 2016 Property Owner submitted a Specific Plan to the City, as defined in California Government Code Section §65450 et seq., commonly known as the 941 Camino Del Mar Specific Plan (“The Plan”), intended to replace the Garden Del Mar Specific Plan adopted by the City Council in 2008 at the Property, and provide vision, development standards and design guidelines for the development of the Property; and
8 July 11, 2022 Item 11
ORDINANCE NO. ____
WHEREAS, Property Owner concurrently submitted a verified application to amend City’s General Plan (General Plan Amendment GPA18-001) pursuant to requirements of California Government Code Section §65350 – 65362; and WHEREAS, Property Owner concurrently submitted a verified application to amend City’s Certified Local Coastal Program (Local Coastal Program Amendment LCPA18-001) pursuant to process and requirements of Division 20 of the California Public Resources Code (“California Coastal Act”); and
WHEREAS at a duly noticed public hearing conducted June 18, 2018, the City Council of the City of Del Mar adopted Resolution 2018-36 certifying a Supplemental Environmental Impact Report (SCH No. 2007091007) with a Statement of Overriding Consideration for GPA18-001 and The Plan; adopted Ordinance 939 to rescind the Garden Del Mar Specific Plan and adopt the 941 Camino Del Mar Specific Plan (the "Plan"); and adopted Resolution 2018-37 approving GP18-001 and LCPA18-001 and authoring submittal of LCPA18-001 to the California Coastal Commission for certification; and
WHEREAS at a duly noticed public hearing conducted August 8, 2018, the City of Del Mar Design Review Board (DRB) adopted Resolution DRB-2018-008, conditionally approving development applications DRB18-008, CDP18-005, and LC18- 011 (Entitlements); and
WHEREAS on September 6, 2018, a timely appeal (Appeal) was filed to the City Council regarding the Design Review Board’s conditional approval of Entitlements; and WHEREAS on October 1, 2018 the City Council of the City of Del Mar held a duly noticed initial consideration hearing of the Appeal, during which two City Council members voted to hear the Appeal as de novo in accordance with procedure enumerated in Chapter 1.12 of the Del Mar Municipal Code; and WHEREAS at a duly noticed de novo public hearing conducted October 15, 2018, the City Council of the City of Del Mar adopted Resolution 2018-71, conditionally approving Entitlements associated with the Plan; and
WHEREAS the Plan and associated GPA18-001 were concurrently submitted for approval by the citizens of Del Mar as Measure “T” at the General Municipal election held on November 6, 2018 and Measure T did pass by a majority vote of the electorate of the City of Del Mar; and
WHEREAS pursuant to requirements of the California Coastal Act, LCPA18-001 was submitted to the California Coastal Commission on December 21, 2018, and Local Coastal Program Amendment LCPA18-001 was certified by the California Coastal Commission on May 9, 2019; and
9 July 11, 2022 Item 11
ORDINANCE NO. ____
WHEREAS pursuant to Section 1.5.4 of the Plan and further memorialized as Condition of Approval “S-2” in City Council Resolution 2018-71, the City may utilize and has accordingly prepared, a Development Agreement (Agreement) to memorialize and further vest the rights and benefits in The Plan, including but not limited to, Exceptional Public Benefits and operational requirements; and
WHEREAS pursuant to Section 5.7.4 of the Plan, a Regulatory Affordable Housing Agreement was prepared and shall be entered into with the City to regulate the sale and operation of the deed restricted affordable housing units; and WHEREAS on May 10, 2022, the Planning Commission held a duly noticed public hearing to review the Agreement, and at which time all persons desiring to be heard were heard, the Planning Commission determined the Agreement was consistent with the City’s General Plan, the Plan, as well as GPA18-001 and LCPA18-001, and provided a recommendation pursuant to Resolution PC-2022-02 that the City Council approve the Agreement; and
WHEREAS, evidence was submitted and considered to include without limitation:
a. Written information submitted with the application.
b. Oral testimony from City staff, the applicant, and the public. c. The City staff report, dated May 10, 2022, which, along with its attachments, is incorporated by this reference as though fully set forth herein.
d. Additional information submitted during the hearing.
WHEREAS, following the public hearing, the Planning Commission adopted Resolution PC-2022-04 recommending that the City Council approve Development Agreement DA22-001; and
WHEREAS, pursuant to Section 65867 of the Government Code, the City Council, on July 11, 2022. held a duly noticed public hearing on Development Agreement DA22-001, during which, evidence was submitted and considered including without limitation:
a. Written information submitted with the application.
b. Oral testimony from Staff, the Property Owner and the public. c. The staff report, dated July 11, 2022, which, along with its attachments, is incorporated by this reference as though fully set forth herein.
d. Additional information submitted during the hearing. 10 July 11, 2022 Item 11
ORDINANCE NO. ____
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF DEL MAR DOES HEREBY ORDAIN AS FOLLOWS:
SECTION ONE:
That with regards to Development Agreement DA 22-001, the City Council makes the following findings:
1. A Supplemental Environmental Impact Report (SEIR – SCH No. 2007091007) was prepared and processed in accordance with the requirements of the California Environmental Quality Act (CEQA) and certified by the City of Del Mar City Council on June 12, 2018.
2. The Development Agreement was prepared in accordance with Government Code Sections 85864-85869.5.
3. The Development Agreement is consistent with the objectives, policies, general land uses and programs specified in the Del Mar Community Plan in that the Camino del Mar Specific Plan was previously determined by the City Council of the City of Del Mar to be consistent with the objectives, policies, general land uses and programs specified in the Del Mar Community Plan and there have been no significant changed circumstances or changes to the Del Mar Community Plan since the time of the approval.
4. The Development Agreement is compatible with the uses authorized in, and the regulations prescribed for the land use district in which the real property is located in that the entitled development is consistent with the zoning, land use and development regulations contained within the 941 Camino del Mar Specific Plan.
5. The Development Agreement is in conformity with public convenience, general welfare and good land use practice, in that the agreement provides for exceptional benefits to the City of Del Mar, including the provision of affordable housing and the construction and funding of public infrastructure consistent with the City capital improvement projects, and contributes funding to enhance City resources;
6. The Development Agreement will not be detrimental to the health, safety, and general welfare in that it will facilitate the development of public infrastructure which will improve pedestrian and vehicular circulation within the vicinity of the Property; and
7. The Development Agreement will not adversely affect the orderly development of the Property.
11 July 11, 2022 Item 11
ORDINANCE NO. ____
SECTION TWO:
The City Council, based upon the above-referenced findings, hereby approves and adopts Development Agreement DA22-001 between DM Asset Recovery, a Limited Partnership, and the City of Del Mar, in the form attached as Exhibit "A" and incorporated herein by reference.
SECTION THREE:
The City Manager is hereby authorized to execute the Development Agreement and directed to perform all acts authorized to be performed by the City Manager in the administration of the Development Agreement, pursuant to the terms of the Development Agreement, including recordation of the Development Agreement with the Office of the San Diego County Recorder within 30 days of the date of effectiveness of the Development Agreement.
SECTION FOUR:
If any section, subsection, sentence, clause, phrase or portion of this Ordinance is, for any reason, held invalid or unconstitutional, such decision shall not affect the validity of the remaining portions of this Ordinance.
SECTION FIVE:
This Ordinance was introduced on July 11, 2022.
SECTION SIX:
The City Clerk is directed to publish a summary of this Ordinance together with the votes cast thereon no less than five days prior to the consideration of its adoption and again within 15 days following adoption.
SECTION SEVEN:
This Ordinance shall take effect and be in force thirty (30) days after the date of adoption.
PASSED, APPROVED AND ADOPTED at a regular meeting of the City Council held on the _____ day of _____________ 2022.
_____________________________________
Dwight Worden, Mayor
City of Del Mar
12 July 11, 2022 Item 11
ORDINANCE NO. ____
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 Ordinance No. ____, which has been published pursuant to law, and adopted by the City Council of the City of Del Mar, California, at a Regular Meeting held the ____ day of _____________, 2022, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
_______________________________________
Sarah Krietor, City Clerk/Administrative Services
Manager, City of Del Mar
13 July 11, 2022 Item 11
ATTACHMENT B
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18 July 11, 2022 Item 11
1 ABOVE SPACE FOR RECORDER'S USE
THIS DEVELOPMENT AGREEMENT (“Agreement”) is made and entered into in the City of Del Mar on this_ day of , 2022, by and between the City of Del Mar, a Municipal Corporation (the “City”), and DM Asset Recovery LP, a California limited partnership, (the “Developer”), pursuant to the authority of California Government Code sections 65864 et seq.
RECITALS
A. To strengthen the public planning process, encourage private participation in comprehensive planning and reduce the economic risk of development, the Legislature of the State of California enacted California Government Code sections 65864 et seq. (the “Development Agreement Statute”), which authorizes City to enter into an agreement with any person having a legal or equitable interest in real property regarding the development of such property. The City of Del Mar Municipal Code Chapter 24.65 (DA Exhibit A) establishes procedures and requirements for the City’s consideration of development agreements.
B. Developer has a legal interest in 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 DA Exhibit B (“Property” or “Project Site”).
C. Developer submitted a Specific Plan to City, as defined in California Government Code Section §65450 et seq., commonly known as the 941 Camino Del Mar Specific Plan (“The Plan”), intended to replace the Garden Del Mar Specific Plan adopted by the City Council in 2008 at the Property, and provide vision, development standards and design guidelines for the development of the Property.
D. Developer concurrently submitted a verified application to amend City’s General Plan (General Plan Amendment GPA18-001) pursuant to requirements of California Government Code Section §65350 – 65362.
E. Developer concurrently submitted a verified application to amend City’s Certified Local Coastal Program (Local Coastal Program Amendment LCPA18-001) pursuant to process
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
ATTACHMENT C
19 July 11, 2022 Item 11
2 and requirements of Division 20 of the California Public Resources Code (“California Coastal Act”).
F. At a duly noticed public hearing conducted June 18, 2018, the City Council of the City of Del Mar adopted Resolution 2018-36 certifying a Supplemental Environmental Impact Report (SCH No. 2007091007) with a Statement of Overriding Consideration for GPA18-001 and The Plan; adopted Ordinance 939 to rescind the Garden Del Mar Specific Plan and adopt the 941 Camino Del Mar Specific Plan (the "Plan"); and adopted Resolution 2018-37 approvingGP18-001 and LCPA18-001 and authoring submittal of LCPA18-001 to the California Coastal Commission for certification.
G. At a duly noticed public hearing conducted August 8, 2018, the City of Del Mar Design Review Board (DRB) adopted Resolution DRB-2018-008, conditionally approving development applications DRB18-008, CDP18-005, and LC18-011 (Entitlements).
H. On September 6, 2018, a timely appeal (Appeal) was filed to the City Council regarding the Design Review Board’s conditional approval of Entitlements.
I. On October 1, 2018 the City Council of the City of Del Mar held a duly noticed initial consideration hear of the Appeal, during which two City Council members voted to hear the Appeal as de novo in accordance with procedure enumerated in Chapter 1.12 of the Del Mar Municipal Code.
J. At a duly noticed de novo public hearing conducted October 15, 2018, the City Council of the City of Del Mar adopted Resolution 2018-71, conditionally approving Entitlements associated with the Plan.
K. The Plan and associated GPA18-001 were concurrently submitted for approval to the citizens of Del Mar as Measure “T” at the General Municipal election held on November 6, 2018 and Measure T did pass by a majority vote of the eligible citizenry of the City of Del Mar.
L. Pursuant to requirements of the California Coastal Act, LCPA18-001 was submitted to the California Coastal Commission on December 21, 2018 and Local Coastal Program Amendment LCPA18-001 was certified by the California Coastal Commission on May 9, 2019.
M. Pursuant to Section 1.5.4 of the Plan and further memorialized as Condition of Approval “S-2” in City Council Resolution 2018-71, the City may utilize and has accordingly prepared, a Development Agreement (Agreement) to memorialize and further vest the rights and benefits in The Plan, including but not limited to, Exceptional Public Benefits and operational requirements.
N. On May 10, 2022, the Planning Commission held a duly noticed public hearing to review the Agreement, and at which time all persons desiring to be heard were heard, determined the Agreement was consistent with the City’s General Plan, the Plan, as well as GPA18-001 and LCPA18-001, and provided a recommendation pursuant to Resolution PC-2022-04 that the City Council approve the Agreement.
O. On July 11, 2022, the City Council held a duly noticed public hearing to review the Agreement, and at which time all persons desiring to be heard were heard, determined the 20 July 11, 2022 Item 11
3 Agreement was consistent with the City’s General Plan, the Plan, as well as GPA18-001 and LCPA18-001, and introduced Ordinance 2022-XX for approval the Agreement.
The approvals described in these recitals are collectively referred to herein as the "Project" or the "Project Approvals."
P. In exchange for the exceptional benefits to the City described in Article III, including but not limited to the other public benefits that will result from the development of the Project Site, Developer will receive by this Agreement assurance that it may proceed with the Project in accordance with the "Applicable Law" (defined in Section 2.03) and therefore, Developer desires to enter into this Agreement.
NOW, THEREFORE, with reference to the foregoing recitals and in consideration of the mutual promises, obligations and covenants herein contained, City and Developer agree as follows:
AGREEMENT
Article I Description ofProperty, Effective Date and Term.
Section 1.01. Description of Property. The real property which is the subject of this Agreement is Property, as described in the attached DA Exhibit B incorporated herein by this reference.
Section 1.02. Effective Date. This Agreement shall become effective upon the date the Ordinance approving this Agreement becomes effective (the "Effective Date") and the City Clerk shall cause the recordation of this Agreement in the Official Records of the County of San Diego no later than ten (10) business days from the Effective Date.
Section 1.03. Term. The term of this Agreement shall commence on the Effective Date and extend ten (10) years thereafter (the "Term").
Article II Standards, Lawsand Procedures Governing the Project.
Section 2.01. Vested Right to Develop. Developer shall have a vested right to develop the Project Site in substantial conformance with the terms and conditions of the Project Approvals, Subsequent Approvals (defined herein) (as and when issued), the Applicable Law (defined below) and amendments as shall, from time to time, be approved pursuant to this Agreement. Specifically, Developer shall have the vested right to develop the Project Site with a mix of retail, restaurant, professional office, and Residential Hospitality uses in accordance with the development policies, regulations and design guidelines set forth in the 941 Camino Del Mar Specific Plan (The Plan), approved Design Review Permit DRB18-008, Coastal Development Permit CDP18-005 and Land Conservation Permit LC18-011 (“Project Approvals”) and associated Project plans date stamped January 20, 2021, and any Subsequent Approvals defined and issued in accordance with Section 4.03 herein.
Section 2.02. Permitted Uses. The permitted uses and the density and intensity of use of the Project Site; the maximum height, bulk and size of the proposed buildings; provisions for reservation or dedication of land for public purposes and the location of public improvements; the general location of public utilities; and other terms and conditions of development applicable to the Project, shall be as set forth in the Specific Plan and Project Approvals and, as and when they are issued 21 July 11, 2022 Item 11
4 (but not in any limitation of any right to develop as set forth in the Project Approvals), any Subsequent Approvals (defined Section 4.03). The Developer agrees and acknowledges that a portion of the Project Site will be required to be used for the provision of deed restricted affordable housing as prescribed in the Regulatory Agreement and Declaration of Restrictive Covenants (DA Exhibit C).
Section 2.03. Applicable Law. "Applicable Law" shall mean the existing rules, regulations, official policies, standards and specifications governing permitted uses on the Project Site as set forth in the Specific Plan and applicable Municipal Code regulations, governing density, and governing the design, improvements, the Regulatory Agreement and Declaration of Restrictive Covenants (DA Exhibit C), applicable City construction standards and specifications applicable to the Project Site asset forth in this Agreement and the Project Approvals, and in force and effect on the Effective Date. During the Term, to the extent there are any conflicts between the Project Approvals (including but not limited to conditions to any of the Project Approvals) and this Agreement, the terms and conditions of this Agreement shall govern.
The development of the Project will require Subsequent Approvals from the City. Notwithstanding any other provision of this Agreement, and notwithstanding the provisions of Section 2.03, at the time Subsequent Approvals are applied for, the following regulations and provisions shall apply to those Subsequent Approvals:
(a) Processing fees and charges of every kind and nature imposed by the City, including application, inspection, and monitoring fees, which are in force and effect within the jurisdiction of the City for the class of Subsequent Approvals being applied for. (b) All taxes, assessments, impact fees, other fees, or other monetary and non-monetary exactions imposed by the City which are in force and effect within the jurisdiction of the City for a broadly based class of land, projects, discretionary or ministerial approvals, or taxpayers, as applicable, on which they are imposed.
(c) Procedural regulations relating to hearing bodies, petitions, applications, notices, findings, records, hearings, reports, recommendations, appeals and any other matter of procedure, which are in force and effect within the jurisdiction of the City for the class of City Permits being applied for. (d) Regulations governing construction standards and specifications including, without limitation, the City's building code, plumbing code, mechanical code, electrical code, fire code and grading code, all provisions of Title 23 of the Del Mar Municipal Code, and all other uniform construction codes which are in force and effect within the jurisdiction of the City for the class of Subsequent Approvals in effect at the time of application.
Section 2.04. Moratorium, Initiatives, and Conflicting Enactments. To the extent consistent with state law (and excepting a declaration of a local emergency or state emergency as defined in Government Code section 8558), if any ordinance, resolution or other measure is enacted subsequent to the Effective Date, whether by action of City, by initiative, referendum, or otherwise, that imposes a building moratorium, a limit on the rate of development, or a voter-approval requirement which would otherwise affect the timely development of the Project or Project Approvals on all or any part of the Project Site ("City Law"), City agrees that such ordinance, resolution or other measure shall not apply to the Project Site, this Agreement, the Project Approvals, or the Subsequent Approvals, if any, during the Term. 22 July 11, 2022 Item 11
5 Section 2.05. Life of Project Approvals or Subsequent Approvals. The term of any Project Approval or Subsequent Approval shall automatically be extended for the longer of the Term of this Agreement or the term otherwise applicable to such Project Approval or Subsequent Approval if this Agreement is no longer in effect. The Term of this Agreement, any other Project Approval or Subsequent Approval shall not include any period of time during which any applicable development or utility moratorium, lawsuit or the actions of other public agencies that regulate land use, delays construction of the Project.
Section 2.06. Development Timing. Subject to the Applicable Law, Developer shall diligently pursue construction of the Project on the Project Site and make a good faith effort to complete construction within the timelines mutually agreed to by the Developer and the City. The timing, sequencing, and phasing of the development is solely the responsibility of Developer so long as it is consistent with Applicable Law. In particular, the parties desire to avoid the result of Pardee Construction Co. v. City of Camarillo (1984) 37 Cal.3d 465, where the failure of the parties therein to consider and expressly provide for the timing of the development resulted in a later adopted initiative restricting the timing of development to prevail over such parties' agreement. The parties therefore acknowledge that Developer shall have the right to develop the Project at such time as Developer deems appropriate so long as such development is consistent with Applicable Law.
Section 2.07. Compliance with State and Federal Law. This Agreement is subject to Developer's compliance with all applicable federal and state laws and regulations and compliance with the California Environmental Quality Act, Public Resources Code sections 21000 et seq. ("CEQA").
Section 2.08. Nexus/Reasonable Relationship Waiver. Developer consents to, and waives any rights it may have now or in the future, to challenge with respect to the Project or Development Approvals, the legal validity of, the conditions, requirements, policies, or programs required by this Agreement, the Development Approval or City Laws, including, without limitation, any claim that they constitute an abuse of police power, violate substantive due process, deny equal protection of the laws, effect a taking of property without payment of just compensation, or impose an unlawful tax. In the event Developer challenges any newer, subsequently enacted, City Law, as specified in Section 2.03, or any increased or new fee permitted under Section 2.03, then City shall have the right to withhold additional development approvals or permits until the matter is resolved; provided, however, Developer shall have the right to make payment or performance under protest, and thereby receive the additional approval or permit while the matter is in dispute.
Article III Developer Obligations.
Section 3.01. Obligations of Developer Generally. The parties acknowledge and agree that the City's agreement to perform and abide by the covenants and obligations of City set forth in this Agreement is a material consideration for Developer's agreement to perform and abide by its long-term covenants and obligations, as set forth herein. The parties acknowledge that many of Developer's long-term obligations set forth in this Agreement are in addition to Developer's agreement to perform all the mitigation measures identified in the Project Mitigation Monitoring and Reporting Program associated with the adopted Supplemental Environmental Impact Report (SCH No. 2007091007).
Section 3.02. Affordable Housing. As more particularly set forth in the Regulatory Agreement and Declaration of Restrictive Covenants (DA Exhibit C), Developer shall 23 July 11, 2022 Item 11
6 construct on site Affordable Units with the required number based on 20 percent of the market rate Residential Hospitality Units, plus one additional affordable housing unit above the required number (2 units total) as follows:
(a) ______ ( ) affordable studio units for sale in an amount affordable to Very Low-Income households, defined as an individual or household whose gross income is 50% or less of the San Diego Countymedian income, adjusted for household size computed pursuant to California Health and Safety Code sections 50079.5 and 50052.5, as may be amended. (b) __2___ (X) affordable one-bedroom units for sale of a size as indicated in the Project plans approved under City Council Resolution No. 2018-71 and subsequently revised by Determination of Substantial Conformance application DSC20-020 decision January 20, 2021, in an amount affordable to Low-Income households, defined as an individual or household whose gross income is 80 percent or less of the San Diego County median income, adjusted for household size computed pursuant to California Health and Safety Code Sections 50079.5 and 50052.5, as may be amended.
(c) The use, qualification of tenants, conditions of tenancy, maintenance and management of the affordable units shall be subject to the terms and conditions of the Regulatory Agreement and Declaration of Restrictive Covenants, attached hereto as DA Exhibit C and which shall be recorded with the San Diego County recorder’s office. The affordable units required to be provided under this Section 3.02 shall be sold to the City or to an income Qualified Household in accordance with the terms of the Regulatory Agreement and Declaration of Restrictive Covenants.
No certificate of occupancy for any portion of the Project will be issued until the affordable units have been completed and given certificates of occupancy and a condominium subdivision map has been approved by the City, the California Department of Real Estate, and any other regulatory agency with authority and recorded against the entire Project Site. Furthermore, no certificate of occupancy for any portion of the Project will be issued unless the City has reviewed and approved the Subdivision Public Report Application and the Conditions Covenants & Restrictions prior to submission to the California Department of Real Estate to ensure that the HOA fees to be charged to the affordable units do not result in the units exceeding the affordable housing cost.
Section 3.03. Streetscape Improvements. Any development implemented pursuant to the Specific Plan shall install frontage improvements to implement the Downtown Streetscape design, including, but not limited to, paving, landscaping, lighting elements, infrastructure, and street furniture, in accordance with the City’s adopted Streetscape Project (as defined and approved by City Council Resolution No. 2018-07and 2018-08 and others as applicable) and the 941 Camino Del Mar Specific Plan. In addition to full implementation along the Project’s 10th Street and Camino Del Mar frontages and construction of crosswalk improvements to match the Streetscape design across 10th Street on the east side of and parallel to Camino Del Mar, a contribution shall be made towards the Streetscape Project (such as the crosswalk improvements previously constructed by the City across Camino Del Mar at 10th Street) in the amount of $35,000.00. Such contribution shall be paid within 30 days of recordation of this Agreement. Until such time as this required contribution is provided to the City, no permits shall be issued for construction or demolition at the Property. All Streetscape improvements must be installed to the satisfaction of the City and accepted prior to occupancy.
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7 Section 3.04. Shores Master Plan. To assist in the planning and implementation of the future Shores Park Master Plan, a contribution to the City shall be provided in the amount of $50,000.00 to be paid within 30 days of recordation of this Agreement. Until such time as this required contribution is provided to the City, no permits shall be issued for construction or demolition at the Property.
Section 3.05. Safe Railroad Crossing and Coastal Rail Trail. For purposes of completing a safe rail crossing feasibility study (in conjunction with the North County Transit District), a contribution shall be provided to the City in the amount of $25,000.00 to be paid within 30 days of recordation of this Agreement. Until such time as this required contribution is provided to the City, no permits shall be issued for construction or demolition at the Property.
Section 3.06. City Shuttle System. To facilitate the establishment and operation of a City Shuttle (should one be implemented by the City or other entity), a contribution shall be provided to the City in the amount of $2,000 annually or as approved by the City Council consistent with this Section. Initial payment shall be made within 30-days of receiving notice from the City that the City Shuttle System has been established and is operational, and annually thereafter at the start of the City’s fiscal year (July 1). Additionally, the annual contribution shall be increased no more frequently than once every five (5) years, with any such increase capped at the lesser of CPI or six percent.
Section 3.07. Traffic Calming. A contribution in the amount of $12,000.00 within 30-days of recordation of this agreement shall be provided to the City to fund the purchase of two speed limit radar signs for City use to affect traffic calming within the City of Del Mar. Until such time as this required contribution is provided to the City, no permits shall be issued for construction or demolition at the Property.
Section 3.08. Solar Photovoltaic System. Any development implemented pursuant to the Specific Plan shall include an approved solar photovoltaic system to provide for enhanced sustainability and greenhouse gas reduction.
Section 3.09. Public Art. Within 30 days of recordation of this Agreement a contribution in the amount of $15,000.00 shall be provided to the City for purchase of public art. Until such time as this required contribution is provided to the City, no permits shall be issued for construction or demolition at the Property.
Section 3.10. Transient Occupancy Tax. Transient Occupancy Tax shall be provided for any Residential Hospitality Uses (including specifically, those units utilized as short-term rentals but excluding the affordable units), as defined in Section 5.4.10 of the Specific Plan, in accordance with requirements and processes enumerated in Del Mar Municipal Code Chapter 3.14.
Section 3.11. Undergrounding Existing Utility Poles. Per the Specific Plan and in accordance with Resolution 2018-71 Condition E-1 and the approved plans, two existing utility poles adjacent to the site, or an equivalent deemed appropriate by the City in agreement with the Developer, shall be undergrounded as part of construction. All proposed utilities within the project shall be installed underground in accordance with current utility engineering practices. The existing poles and aerial utilities (to the project) shall be removed and/or placed underground in accordance with a plan produced by the Developer in consultation with SDG&E and other utility providers to the area, and subject to City approval. At the discretion of the City, the developer will have the option to 25 July 11, 2022 Item 11
8 remit a commensurate monetary contribution to the City for a future undergrounding project involving said poles and aerial utilities in-lieu of performing the physical undergrounding. The poles and aerial utilities must be undergrounded, or in-lieu payment must be made (if found to be acceptable by the City) in order to obtain final project occupancy.
Section 3.12. Sewer Main Relocation. Per the Specific Plan and in accordance with Resolution No. 2018-71 Condition E-1, the development shall construct a new eight-inch sewer main in Camino Del Mar, to relocate the public sewer main into the street right-of-way.
Section 3.13. Parking Fees. Prior to issuance of permits for demolition or construction, the Developer shall submit payment to the City for nine (9) in-lieu parking spaces. The fee for payment shall be based upon the adopted fee schedule in place at the time of building permit issuance, and pursuant to process enumerated in Del Mar Municipal Code Section 30.80.170.
Section 3.14. Compliance with Requirements of Other Governmental Entities. During the Term, Developer, at no cost to City, shall comply with lawful requirements of, and obtain all permits and approvals required by other local, regional, State and Federal agencies having jurisdiction over Developer's activities in furtherance of this Agreement. Developer shall pay all required fees when due to Federal, State, regional, or other local governmental agencies other than the City and acknowledges that City does not control the amount of any such fee.
City shall cooperate with Developer in Developer's effort to obtain permits and approvals from Federal, State, regional, and other local governmental agencies, provided that same does not impose any costs on or require the City to incur any costs without compensation or reimbursement, or require the City to amend any of the City's policies, regulations, or ordinances.
As provided in California Government Code § 65869.5, this Agreement shall not preclude the application to the Property and Project of changes in laws, regulations, plans, or policies, to the extent that such changes are specifically mandated and required by changes in State or Federal laws or regulations. In the event changes in the law prevent or preclude compliance with one or more provisions of this Agreement, this Agreement shall be modified or suspended as may be necessary to comply with such State or Federal laws or regulations. The parties shall meet and confer in good faith in order to determine whether such provisions of this Agreement shall be modified or suspended as may be necessary to comply with changes in the law, and City and Developer shall agree to such action as may be reasonably required. It is the intent of the parties that any such modification or suspension be limited to that which is necessary and to preserve to the extent possible the original intent of the parties in entering into this Agreement. This Agreement shall remain in full force and effect to the extent it is not inconsistent with such laws or regulations. Nothing in this Agreement shall preclude the City or Developer from contesting by any available means (including administrative or judicial proceedings) the applicability to the Property or Project of any such State or Federal laws or regulations.
To the extent that any actions of Federal or State agencies (or actions of other governmental agencies, including City, required by Federal or State agencies, or actions of City taken in good faith to prevent adverse impacts upon City by actions of Federal, State or other governmental agencies) have the effect of preventing, delaying, or modifying development of the Property or any portion thereof, City shall not in any manner be liable for any such prevention, delay, or modification. Such actions include, but are not limited to, flood plain or wetlands designations and actions of City or other governmental agencies as a result; the imposition of air quality or 26 July 11, 2022 Item 11
9 transportation measures or sanctions and actions of City or other governmental agencies as a result; or changes to CEQA and actions of City or other governmental agencies as a result. As a condition to being able to proceed with development, Developer may be required, at its cost, to participate in such regional or local programs and to be subject to such development restrictions as may be necessary or appropriate by reason of actions of Federal, State or other governmental agencies (or action of City taken in order to prevent adverse impacts upon City by actions of Federal, State, or other governmental agencies).
Section 3.15. City's Police Power. The parties acknowledge and agree that the limitations, reservations, and exceptions contained in this Agreement are intended to reserve to the City that part of its police power which cannot be limited by contract, and this Agreement shall be construed to reserve to the City that part of its police power which cannot be restricted by contract.
Article IV City Obligations.
Section 4.01. Protection of Vested Rights. To the maximum extent permitted by law, City shall take any and all actions as may be necessary or appropriate to ensure that the vested rights provided by this Agreement can be enjoyed by Developer and to prevent any City Law from invalidating or prevailing over all or any part of this Agreement. City shall cooperate with Developer and shall undertake such actions as may be necessary to ensure this Agreement remains in full force and effect. City shall not support, adopt, or enact any City Law, or take any other action which would violate the express provisions or intent of the Project Approvals or the Subsequent Approvals (defined in Section 4.03).
Section 4.02. Developer's Right to Rebuild. City agrees that Developer may renovate or rebuild the Project Site within the Term of this Agreement should it become necessary due to natural disaster, changes in seismic requirements, or should the buildings located within the Project Site become functionally outdated, within Developer's sole discretion, due to changes in technology. Any such renovation or rebuilding shall be subject to the square footage and height limitations vested by this Agreement, and shall comply with the Project Approvals, the building codes existing at the timeof such rebuilding or reconstruction, and the requirements of CEQA. Developer’s right to rebuild shall be conditioned on complying with the affordable housing obligations set forth in this Agreement and in the Affordable Housing Regulatory Agreement. Further, Developer shall be obligated to restore the Streetscape Improvements installed pursuant to Section 3.03 of this Agreement.
Section 4.03. Processing Subsequent Approvals. The development of the Project is subject to future approvals and actions by the City that have not been reviewed or approved by the City prior to the adoption date of this Agreement (“Subsequent Approvals”). These Subsequent Approvals include, but are not limited to, the following: amendments of the Project Approvals, tentative/final subdivision map to create residential and/or commercial portions of the Project, new, additional and/or revised Design Review, Land Conservation or other City-issued permits, improvement agreements, building and grading permits, sewer and water connection permits, and certificates of occupancy. In reviewing and acting on applications for Subsequent Approvals, the City shall apply the Project Approvals and the Existing Land Use Regulations when considering the application and may attach such conditions as necessary to comply with the Project Approvals and Existing Land Use Regulations.
27 July 11, 2022 Item 11
10 Section 4.04. Right-of-Way Dedication for Loading/Unloading.
Subject to approval of an Encroachment Permit by the City Council, and in compliance with the City’s approved Streetscape Plan and Section 6.2.2 of the Plan, a dedicated space for loading and unloading shall be permitted immediately adjacent to the Project within the Camino Del Mar rightof-way. Final design, location, and overall dimensions of the on-street loading space shall be subject to City approval.
Section 4.05. Periodic Review. City and Developer shall review all actions taken pursuant to the terms of this Agreement once annually, within sixty (60) days prior to each anniversary of the Effective Date, during each year of the Term unless the City and Developer agree in writing to conduct the review at another time. Review of compliance with the terms of this Agreement shall be conducted by the Director. Pursuant to Del Mar Municipal Code Section 24.65.190, Developer shall initiate the review by filing an application with the City and provide all the documents and information necessary for the City to complete the annual review and make a determination of whether Developer is in compliance.
(a) Good Faith Compliance. During the Periodic Review, the Director of Planning and Community Development or his/her designee shall review Developer’s good-faith compliance with the terms of this Agreement, including but not limited to the affordable housing requirements and financial obligations set forth in Article III of this Agreement.
At the conclusion of the Periodic Review, the Director of Planning and Community Development shall make written findings and determinations, on the basis of substantial evidence, as to whether Developer has complied in good faith with the terms and conditions of this Agreement. The decision of the Director of Planning and Community Development may be appealable to the City Council within ten (10) calendar days of a written decision.
If the Director of Planning and Community Development finds and determines that Developer has not complied with such terms and conditions, the Director of Planning and Community Development may recommend to the City Council that it terminate or modify this Agreement by giving notice ofitsintention to do so, in the manner set forth in California Government Code Sections 65867 and 65868. The costs incurred by City in connection with the Periodic Review process described herein shall be shared by Developer and the City.
(b) Failure to Properly Conduct Periodic Review. City’s failure to conduct a periodic review shall not be deemed to be a waiver of right to do so at a later date. (c) Written Notice of Compliance. With respect to any year for which Developer has been determined or deemed to have complied with this Agreement, City shall, within thirty (30) calendar days following request by Developer, provide Developer with a written notice of compliance.
Article V Insurance.
Section 5.01. Public Liability and Property Damage Insurance. At all times that Developer is constructing any improvements that will become public improvements, Developer shall maintain in effect a policy of comprehensive general liability insurance with a per-occurrence combined single limit of not less than two million dollars ($2,000,000.00) and a deductible of not more than ten thousand dollars ($10,000.00) per claim. The policy so maintained by Developer shall name 28 July 11, 2022 Item 11
11 the City as an additional insured and shall include either a severability of interest clause or crossliability endorsement.
Section 5.02. Workers Compensation Insurance. At all times that Developer is constructing any improvements that will become public improvements, Developer shall maintain Worker's Compensation insurance for all persons employed by Developer for work at the Project site.
Developer shall require each contractor and subcontractor similarly to provide Worker's Compensation insurance for its respective employees. Developer agrees to indemnify the City for any damage resulting from Developer's failure to maintain any such required insurance.
Section 5.03. Evidence of Insurance. Prior to City Council approval of this Agreement, Developer shall furnish City satisfactory evidence of the insurance required in Sections 5.01 and
5.02 and evidence that the carrier will endeavor to give the City at least ten (10) calendar days prior written notice of any cancellation or reduction in coverage of a policy if the reduction results in coverage less than that required by this Agreement. In the event of a reduction (below the limits required in this Agreement) or cancellation in coverage, or change in insurance carriers or policies, Developer shall, prior to such reduction, cancellation or change, provide at least ten (10) calendar days prior written notice to City, regardless of any notification by the applicable insurer. If the City discovers that the policies have been cancelled or reduced below the limits required in this Agreement and no notice has been provided by either insurer or Developer, said failure shall constitute a material breach of this Agreement.
In the event of a reduction (below the limits required by this Agreement) or cancellation in coverage, Developer shall have five (5) calendar days in which to provide evidence of the required coverage during which time all construction work shall cease until such time as the City receives evidence of substitute coverage. If Developer fails to obtain substitute coverage within five (5) calendar days, City may obtain, but is not required to obtain, substitute coverage and charge Developer the cost ofsuch coverage plus an administrative fee equal to ten percent of the premium for said coverage.
Section 5.04. Additional Insureds. If Developer fails to obtain substitute coverage within five (5) calendar days, City may obtain, but is not required to obtain, substitute coverage and charge Developer the cost ofsuch coverage plus an administrative fee equal to ten percent of the premium for said coverage.
Article VI Mortgagee Protections.
Section 6.01. Certain Rights of Cure. This Agreement shall be superior and senior to all liens placed upon the Property or any portion thereof after the date on which this Agreement or a memorandum of this Agreement is recorded, including the lien of any deed of trust or mortgage ("Mortgage"). Notwithstanding the foregoing, no breach hereof shall defeat, render invalid, diminish or impair the lien of any Mortgage made in good faith and for value, but all of the terms and conditions contained in this Agreement shall be binding upon and effective against all persons and entities, including all deed of trust beneficiaries or mortgagees ("Mortgagees") who acquire title to the Property or any portion thereof by foreclosure, trustee's sale, deed in lieu of foreclosure or otherwise.
Section 6.02. Mortgagee Not Obligated. No foreclosing Mortgagee shall have any obligation or duty under this Agreement to construct or complete the construction of any improvements allowed 29 July 11, 2022 Item 11
12 or required by this Agreement, or to pay for or guarantee construction or completion thereof. City, upon receipt of a written request from a foreclosing Mortgagee, shall permit the Mortgagee to succeed to the rights and obligations of Developer under this Agreement, provided that all defaults by Developer hereunder that are reasonably susceptible of being cured are cured by the Mortgagee as soon as is reasonably possible. The foreclosing Mortgagee thereafter shall comply with all the provisions of this Agreement.
Section 6.03. Notice of Default to Mortgagee. If City receives notice from a Mortgagee requesting a copy of any notice of default given to Developer hereunder and specifying the address for service thereof, City shall deliver to the Mortgagee concurrently with service thereof to Developer, all notices given to Developer describing all claims by the City that Developer has defaulted hereunder. If City determines that Developer is in noncompliance with this Agreement, City also shall serve notice of noncompliance on the Mortgagee, concurrently with service thereof on Developer. Each Mortgagee shall have the right during the same period available to Developer to cure or remedy, or to commence to cure or remedy, the condition of default claimed or the areas of noncompliance set forth in City's notice.
Section 6.04. No Supersedure. Nothing in this Article VI shall be deemed to supersede or release a Mortgagee or modify a Mortgagee's obligations under any subdivision improvement agreement or other obligation incurred with respect to the Property outside this Agreement, nor shall any provision of this Article VI constitute an obligation of City to the Mortgagee, except as to the notice requirements of Section 6.03.
Article VII Indemnification.
Section 7.01. Indemnification. Developer shall defend, indemnify and hold harmless the City of Del Mar and its officers, agents, employees, representatives, and volunteers (collectively, “Indemnitees”) from and against any loss, liability, claim or judgment relating in any manner related to(1) the approval of this Agreement or the Project Approvals; (2) and development or use of the Property under this Agreement or the Project Approvals; and (3) any actions or inactions by the Developer or its contractors subcontractors agents or employees in connection with the construction or improvement of the Property, and the Project including off-site improvements provided, however, that once the City accepts the public improvements, the Developer’s indemnification obligation with respect to those public improvements shall cease. Notwithstanding the foregoing, Developer shall not be required to indemnify and hold harmless Indemnitees for liability attributable to the active negligence or willful misconduct of Indemnitees, provided such active negligence is determined by agreement between the Parties or by the findings of a court of competent jurisdiction. In instances where an Indemnitee is shown to have been actively negligent and where Indemnitees’ active negligence accounts for only a percentage of the liability involved, the obligation of Developer will be for that entire portion or percentage of liability not attributable to the active negligence of Indemnitees.
Article VIII Miscellaneous.
Section 8.01. Amendment of Agreement. This Agreement may be amended from time to time, in whole or in part, by mutual written consent of the parties hereto or their successors in interest, asfollows:
30 July 11, 2022 Item 11
13 (a) Administrative Agreement Amendments. Any amendment to this Agreement which does not substantially affect (i) the Term of this Agreement , (ii) permitted uses ofthe Project Site, (iii) provisions for the reservation or dedication of land, (iv) conditions, terms, restrictions or requirements for subsequent discretionary actions, (v) the density or intensity of use of the Project Site or the maximum height or size of proposed buildings, or (vi) monetary contributions by Developer, shall not, except to the extent otherwise required by law, require notice or public hearing before the parties may execute an amendment hereto. Such amendment may be approved by the Director of Planning and Community Development who shall make the determination in the context of the overallProject.
(b) Amendment Exemptions. No amendment of a Project Approval or Subsequent Approval shall require an amendment to this Agreement. Instead, any such amendment automatically shall be deemed to be incorporated into theProject and vested under this Agreement.
(c) Scope of Amendment. An amendment to this Agreement may properly address new impacts, if any, resulting from the proposed amendment and shall not serve as an opportunity for City to revisit vested rights unrelated to such amendment.
Section 8.02. Cooperation in Event of Legal Challenge. In the event of an administrative, legal or equitable action or other proceeding instituted by any person not a party to this Agreement challenging the validity of this Agreement or any Project Approval or Subsequent Approval, the parties shall cooperate in defending such action or proceeding. Developer shall bear its own costs of defense as the Real Party In Interest in any such action, and Developer shall reimburse City for all costs (including court costs) and attorneys’ fees incurred by City in defense of any such action or other proceedings. In its sole discretion, City may tender its defense of such action to Developer or defend the action itself. Upon a tender of defense to Developer by City, Developer shall defend through counsel approved by City, which approval shall not be unreasonable withheld, and Developer shall bear all attorneys’ fees and costs from the date of tender.
Section 8.03. Defaults. In the event City or Developer defaults under the terms of this Agreement, City or Developer shall have all rights and remedies provided under law.
Section 8.05. California Law and Venue. This Agreement shall be construed and enforced in accordance with California Law. Any action at law or in equity arising under this Agreement or brought by any Party for the purposes of enforcing, construing, or determining the validity of any provision of this Agreement shall be filed and tried in the County of San Diego, or the United States District Court for the Southern District of California.
Section 8.06. Attorneys’ Fees. In any legal action or other proceeding brought by either party to enforce or interpret a provision of this Agreement, the prevailing party is entitled to reasonable attorney's fees and any related costs incurred in that proceeding in addition to any other relief to which it is entitled.
Section 8.07. Severability. If any term or provision of this Agreement, or the application of any term or provision of this Agreement to a particular situation, is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining terms and 31 July 11, 2022 Item 11
14 provisions of this Agreement, or the application of this Agreement to other situations, shall continue in full force and effect unless amended or modified by mutual consent of the parties.
Section 8.08. Covenants Running with the Land. All of the provisions contained in this Agreementshall be binding upon the parties and their respective heirs, successors and assigns, representatives, lessees, and all other persons acquiring all or a portion of the Project, or any interest therein, whether by operation of law or in any manner whatsoever . All the provisions contained in this Agreement shall be enforceable as equitable servitudes and shall constitute covenants running with the land pursuant to California law including, without limitation, California Civil Code section 1468.
Section 8.09. Assignment of Interests, Rights and Obligations. Developer shall not transfer or assign all or any portion of its interests, rights or obligations under this Agreement, the Project Approvals or subsequent Approvals to third parties prior to completion of construction unless it first obtains the City’s approval of any prospective purchaser, such approval not to be unreasonably withheld. Developer 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. Developer may transfer or assign all or any portion of its interests, rights or obligations under this Agreement, the Project Approvals or subsequent Approvals to third parties after completion of construction without City review and approval.
Upon the express written assumption by the Assignee of Developer's rights and interests under this Agreement (the "Assignment Agreement"), Developer shall be free from any and all liabilities accruing on or after the date of assignment with respect to those obligations assumed by the Assignee pursuant to the Assignment Agreement, except to the extent that Developer is in default with respect to any and all obligations at the time of the proposed transfer.
Section 8.10. Notices. Any notice or communication required hereunder between City and Developermust be inwriting, andmay be given either personally, by registered or certified mail (return receipt requested), or by Federal or other similar courier promising overnight delivery to the respective addresses specified by each party. Any party hereto may at any time, by giving ten (10) calendar days written notice to the other party hereto, designate any other address in substitution of the address to which such notice or communication shall be given.
Such notices or communications shall be given to the parties at their addresses set forth below:
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
32 July 11, 2022 Item 11
15 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
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
Section 8.11. Exhibits. The following exhibits are attached to this Agreement and incorporated herein for all purposes:
DA EXHIBIT A Del Mar Municipal Code Chapter 24.65
DA EXHIBIT B Legal Description of Property
DA EXHIBIT C Affordable Housing Regulatory Agreement and Declaration of Restrictive Covenants
Section 8.12. Entire Agreement, Counterparts and Exhibits. This Agreement is executed in two (2) duplicate counterparts, each of which is deemed to be an original. This Agreement consists of 18 pages and 4 exhibits which constitute in full, the final and exclusive understanding and agreement of the parties and supersedes all negotiations or previous agreements of the parties with respect to all or any part of the subject matter hereof. All waivers of the provisions of this Agreement shall be in writing and signed by the appropriate authorities of City and the Developer.
Section 8.13. Recordation of Development Agreement. Pursuant to California Government Code section 65868.5, no later than ten (10) calendardays afterCity enters into this Agreement, the City Clerk shall record an executed copy of this Agreement in the Official Records ofthe County of SanDiego.
[Signature Page Follows.]
33 July 11, 2022 Item 11
16 IN WITNESS WHEREOF, this Agreement has been entered into by and between Developer and City as of the day and year first above written.
Dated: “CITY”
CITY OF DEL MAR,
a municipal corporation
By:
Dated: Approved as to from:
By:
Dated: “DEVELOPER”
DM Asset Recovery LP
By:
Name:
Title:
34 July 11, 2022 Item 11
17 STATE OF )
) ss.
COUNTY OF )
On , before me,
the undersigned notary public in and for said County and State, personally appeared personally known to me [or]
proved to me on the basis of satisfactory evidence
to be the person(s) whose name(s) is/ are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies) and that by his/her/their signature(s) on the instrument, the person(s) or the entity(ies) upon behalf of which the person(s) acted executed the instrument.
WITNESS my hand and official seal.
My commission expires on
35 July 11, 2022 Item 11
18 STATE OF_________________________)
) ss.
COUNTY OF )
On , before me,
the undersigned notary public in and for said County and State, personally appeared personally known to me [or]
proved to me on the basis of satisfactory evidence
to be the person(s) whose name(s) is/ are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies) and that by his/her/their signature(s) on the instrument, the person(s) or the entity(ies) upon behalf of which the person(s) acted executed the instrument.
WITNESS my hand and official seal.
My commission expires on
36 July 11, 2022 Item 11
DA EXHIBIT A
Del Mar, California, Municipal Code
Chapter 24.65 DEVELOPMENT AGREEMENTS1
24.65.010 Purpose.
The purpose of this Chapter is to establish procedures and requirements for the City's consideration of development agreements upon application by, or on behalf of, a property owner or other person having a legal or equitable interest in the property which is to be the subject of a development agreement. In adopting this Chapter, the City Council has considered the Community Plan (General Plan) of the City of Del Mar, and the legislative findings and declarations set forth in Section 65864 of the Government Code. (Ord. No. 811, § 1(part), 2008)
24.65.020 Development agreement—Authorized.
Pursuant to the provisions of Chapter 2.5 of Division 1 of Title 7 of the Government Code (Sections 65864 et seq.), the City Council is hereby authorized to enter into development agreements upon application by, or on behalf of, a property owner or other person having a legal or equitable interest in the property which is the subject of the proposed agreement.
(Ord. No. 811, § 1(part), 2008)
24.65.030 Same—Application, fees.
A. A developer wishing to enter into a development agreement with the City shall submit to the Director of Planning and Community Development a written application on a form provided by the Director of Planning and Community Development.
B. The Director of Planning and Community Development may require the developer to submit such additional information and supporting data as may be considered necessary to properly evaluate the proposed development agreement.
C. The written application required herein shall be accompanied by a nonrefundable processing fee in an amount as set by Resolution of the City Council.
(Ord. No. 811, § 1(part), 2008)
24.65.040 Proposed form of agreement.
Each application shall be accompanied by the form of development agreement proposed by the applicant. (Ord. No. 811, § 1(part), 2008)
24.65.050 Review of application.
The Director of Planning and Community Development shall review the application to determine whether or not it is complete. If it is found that the application is complete, the Director of Planning and Community Development shall accept it for filing. If the application is found to be incomplete, the Director of Planning and
1Note(s)—For the statutory provision regarding development agreements, see Government Code §§ 65864 et seq. 37 July 11, 2022 Item 11
Community Development shall refuse to accept the application for filing and shall inform the applicant of the items necessary to properly complete the application.
(Ord. No. 811, § 1(part), 2008)
24.65.060 Development agreement—Hearing by Planning Commission.
A. The Director of Planning and Community Development shall refer all applications for development agreements to the Planning Commission for a public hearing.
B. Upon receipt of the application, the Planning Commission shall set a date for the public hearing.
C. The Director of Planning and Community Development shall insure that the public is given proper notice of said public hearing in accordance with Section 24.65.070. (Ord. No. 811, § 1(part), 2008)
24.65.070 Public hearing, notice.
Any public hearing held pursuant to the provisions of this Chapter shall be noticed as follows:
A. Time and Manner of Notice. Notice shall be given at least ten calendar days before the hearing in the following manner.
1. Publication at least once in a newspaper of general circulation, published and circulated in the City.
2. Notice of the hearing shall be mailed or delivered at least ten days prior to the hearing to the owner of the subject real property or the owner's duly authorized agent, and to the project applicant.
3. Notice of the hearing shall be mailed or delivered at least ten days prior to the hearing to each local agency expected to provide water, sewage, streets, roads, schools, or other essential facilities or services to the project, whose ability to provide those facilities and services may be significantly affected.
4. Notice of the hearing shall be mailed or delivered at least ten days prior to the hearing to all owners of real property as shown on the latest equalized assessment roll within 300 feet of the real property that is the subject of the hearing. In lieu of utilizing the assessment roll, the City Clerk may utilize the records of the County Assessor or Tax Collector which contain more recent information than the assessment roll. If the number of owners to whom notice would be mailed or delivered pursuant to this Subsection or Subsection 2. is greater than 1,000, the City Clerk, in lieu of mailed or delivered notice, may provide notice by placing a display advertisement of at least one-eighth page in a newspaper of general circulation within the City of Del Mar at least ten days prior to the hearing.
5. If the notice is mailed or delivered pursuant to Subsection 4., the notice shall also be posted at least ten days prior to the hearing in at least three public places in the City of Del Mar, including one public place in the area directly affected by the proceeding.
B. Content of Notice. The notice required herein shall contain the following information:
1. The date, time and place of the hearing.
2. The identity of the body conducting the hearing.
3. A general explanation of the matter to be considered. 38 July 11, 2022 Item 11
4. A general description, in text or by diagram, of the location of the real property that is the subject of the Development Agreement.
5. Other information required by specific provision of these regulations or which the City, through its Department Heads, may consider necessary or desirable.
C. Declaration of Existing Law. The notice requirements referred to in Subsections A. and B. are declaratory of existing law (Government Code § 65867 and §§ 65090 and 65091 as referenced therein).
If State law prescribes a different notice requirement, notice shall be given in that manner.
D. Failure to Receive Notice. The failure of any person so entitled to receive the notice required herein shall not affect the authority of the City to enter into a development agreement. (Ord. No. 811, § 1(part), 2008)
24.65.080 Conduct of hearing.
The public hearing held pursuant to this Chapter shall be conducted as nearly as may be possible in accordance with the procedural standards adopted under Government Code § 65804 for the conduct of zoning hearings. Each person interested in the matter shall be given an opportunity to be heard. The applicant shall have the burden of proof at the public hearing on the proposed development agreement. (Ord. No. 811, § 1(part), 2008)
24.65.090 Irregularity in proceedings.
No action, inaction or recommendation regarding the proposed development agreement shall be held void or invalid, or be set aside by a court by reason of any error, irregularity, informality, neglect or omission, ("error") as to any matter pertaining to petition, application, notice, finding, record, hearing, report, recommendation, or any matters of procedure whatever unless after an examination of the entire case, including the evidence, the court is of the opinion that the error complained of was prejudicial and that by reason of the error the complaining party sustained and suffered substantial injury, and that a different result would have been probable if the error had not occurred or existed. There is no presumption that error is prejudicial or that injury was done if error is shown.
(Ord. No. 811, § 1(part), 2008)
24.65.100 Determination by Planning Commission.
A. After the hearing by the Planning Commission, the Planning Commission shall forward its written recommendation and the application to the City Council. The recommendation shall include the Planning Commission's determination of whether or not the development agreement proposed:
1. Is consistent with the objectives, policies, general land uses and programs specified in the general plan and any applicable specific plan;
2. Is compatible with the uses authorized in, and the regulations prescribed for the land use district in which the real property is located;
3. Is in conformity with public convenience, general welfare and good land use practice;
4. Will be detrimental to the health, safety and general welfare;
5. Will adversely affect the orderly development of property or the preservation of property valued.
B. The recommendation shall include the factual bases for said determinations. 39 July 11, 2022 Item 11