Table of Contents
2022-8-10 Regular Meeting Agenda
Item 1 - Minutes
Item 2 - List of Demands
Item 4 - 941 CDM Development Agreement
Item 5 - MSC Agreement Amendment
Item 6 - CEA CAC Appointment
Item 7 - CEA JPA First Amendment
Item 8 - Public Works Reclassifications
Item 9 - AB361 Remote Meetings
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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
Wednesday, August 10, 2022 at 2:00 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 2:00 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
Kseniia Izgarskaia
Associate Management
Analyst/ Deputy City Clerk
Del Mar City Council Regular Meeting August 10, 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 2:00 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. 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.
1. Approval of Minutes: July 25, 2022 Regular and Special Meeting Recommended Action: Approve Minutes.
Reference: Clerk’s Minutes Book
2. Ratification of List of Demands, dated August 10, 2022 Recommended Action: Ratify the List of Demands.
Reference: Clerk’s File No. 201-3
3. Waiver of Reading of Ordinances on Agenda
Recommended Action: Waive Reading of Ordinances.
Reference: Clerk’s File No. 401-4
4. Adoption 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”)
Del Mar City Council Regular Meeting August 10, 2022
Agenda Page 3
1050 Camino del Mar, Del Mar, CA 92014 www.delmar.ca.us Recommended Action: Staff recommends the City Council: 1) Adopt the proposed Ordinance (Attachment A) approving Development Agreement DA22- 001 (Exhibit A to Attachment A); and 2) Authorize the City Manager to execute and record Development Agreement DA22-01 and its related exhibits.
Reference: Clerk’s File No. 401-4, 406-1
5. Second Amendment to the Agreement with MSC Janitorial Services, Inc. for Janitorial Services
Recommended Action: Staff recommends that the City Council: 1) Approve the Second Amendment (Attachment A) to the janitorial services agreement with MSC Janitorial Services Inc., amending the scope of services, fee schedule, and agreement term; and 2) Authorize the City Manager to execute the Second Amendment.
Reference: Clerk’s File No. 406-1
6. Del Mar Appointment to the Clean Energy Alliance Community Advisory Committee
Recommended Action: Councilmember Druker and Mayor Worden, as the Vice Chair and Alternate Board Member of the Clean Energy Alliance (CEA), recommend that the City Council appoint Dolores Jamison as the City of Del Mar’s representative to CEA’s Community Advisory Committee for a term through December 31, 2022.
Reference: Clerk’s File No. 401-5, 1403-4
7. First Amendment to the Clean Energy Alliance Joint Powers Agreement Recommended Action: Councilmember Druker and Mayor Worden, as the Vice Chair and Alternate Board Member of the Clean Energy Alliance (CEA) Board, recommend that the City Council approve the First Amendment (Attachment A) to the CEA Joint Powers Agreement (JPA) that officially recognizes the addition of the cities of Oceanside and Vista as member agencies, and authorize the City Manager to execute the First Amendment.
Reference: Clerk’s File No. 406-1
8. Proposed Reclassification of Positions in the Public Works Department Recommended Action: Staff recommends that the City Council adopt a Resolution (Attachment A) authorizing reclassification of the newly created Associate Engineer position to a Project Manager I/II and reclassification of the Project Assistant position to a Management Analyst, and approve related amendments to the Fiscal Year 2022-2023 Management and Professional Del Mar City Council Regular Meeting August 10, 2022
Agenda Page 4
1050 Camino del Mar, Del Mar, CA 92014 www.delmar.ca.us Compensation Plan (Exhibit A to Attachment A) and General Employee Compensation Plan (Exhibit B to Attachment A).
Reference: Clerk’s File No. 504-2
IX. CITY COUNCIL OTHER BUSINESS
9. Consider Continuation of Remote Public Meetings in Compliance with Government Code Section 54953 (Assembly Bill 361)
Recommended Action: Staff recommends the City Council consider whether to adopt a Resolution (Attachment A) making the finding required by Government Code 54953 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 or to direct staff to proceed with resuming in-person meetings beginning with the September 6, 2022 City Council Meeting.
Reference: Clerk’s File No. 401-7
X. 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)
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
XI. 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.
Del Mar City Council Regular Meeting August 10, 2022
Agenda Page 5
1050 Camino del Mar, Del Mar, CA 92014 www.delmar.ca.us 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
XII. 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.
September 6, 2022
Initial Considertation of EP22-064 Denial
EP22-067 (1128 Cuchara, Novakovic)
Parks & Recreation Committee Appointments (Tentative)
XIII. 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 4th day of August, 2022, at approximately 4:45 p.m.
___________________________________________ 8/4/2022
Sarah Krietor, Administrative Services Manager/ Date
City Clerk
CITY OF DEL MAR
CITY COUNCIL REGULAR MEETING MINUTES
JULY 25, 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, Terry Gaasterland, and Dan Quirk
CITY ATTORNEY CLOSED SESSION REPORT
City Attorney Leslie Devaney reported that there were no reportable actions for the July 25, 2022, City Council Closed Session meeting. She also reported that for Item C Councilmember Druker was recused due to his personal and professional relationship with one of the parties involved in the matter.
PLEDGE OF ALLEGIANCE
Mayor Worden led the Pledge of Allegiance.
PUBLIC ORAL COMMUNICATIONS
None.
CITY COUNCIL COMMENTS & COMMUNITY ANNOUNCEMENTS
Mayor Worden reported on a recent letter from the City to the California Coastal Commission (CCC) providing comments regarding the CCC’s Draft Public Trust Guiding Principles and Action Plan; the Del Mar Little League winning the District 31 Championship; former Del Mar resident Cecilia Rouse being appointed to serve as the Chair of the Council of Economic Advisers to President Biden; new gun legislation signed by Govern Newsom which outlaws ghost guns and gun sales in general at State owned properties both of which would apply to the 22nd Agricultural District; and his attendance at a seminar with other agencies considering a potential lawsuit against the California Department of Housing and Community Development (HCD) related to 6
th Cycle Regional Housing Needs Assessment (RHNA)
allocations. Mayor Worden stated he does not have a position on the potential lawsuit, but wanted the rest of the Council, staff and public to be aware of it.
CITY MANAGER’S REPORT
City Manager Ashley Jones reported on the planned SDG&E power outage related to the removal of a utility pole in the 25th Street area occurring the evening of July 25, 2022 through the early morning of July 26, 2022; provided a status update on the Hillstone project, located at 1404 Camino del Mar, and activities 1 August 10, 2022 Item 01
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July 25, 2022
underway to facilitate the start of construction this fall; the transition of solid waste billing from the City to EDCO; and the November 2022 General Municipal Election candidate filing period.
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 DRUKER, SECONDED BY DEPUTY MAYOR MARTINEZ TO APPROVE THE CONSENT CALENDAR ITEMS 1 THROUGH 7, 9, 11 AND 12. (VOTE 5-0)
Ayes: Mayor Worden, Deputy Mayor Martinez, and Councilmembers Druker, Gaasterland and Quirk; Noes: 0; Absent: 0; Abstain: 0.
ITEM 1: APPROVAL OF MINUTES: JULY 11, 2022 REGULAR AND SPECIAL MEETING (CLERK’S MINUTES BOOK)
Council approved the minutes, on consent.
ITEM 2: RATIFICATION OF LIST OF DEMANDS, DATED JULY 25, 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: CONTINUATION OF REMOTE PUBLIC MEETINGS IN COMPLIANCE WITH GOVERNMENT CODE SECTION 54953 (ASSEMBLY BILL 361) (CLERK’S FILE NO. 401-7)
Council adopted resolution 2022-54, “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”, for the next thirty (30) days during the local emergency declared in response to the COVID-19 global pandemic, on consent.
ITEM 5: LICENSE AGREEMENT WITH EDCO DISPOSAL CORPORATION FOR USE OF PUBLIC WORKS YARD (CLERK’S FILE NO. 103-3, 406-1, 702-2) Council approved a license agreement with EDCO Disposal Corporation (EDCO) for the use of approximately 10,000 square feet of space at the City’s Public Works yard for the temporary storage of container equipment and authorized the City Manager to execute the license agreement, on consent.
2 August 10, 2022 Item 01
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July 25, 2022
ITEM 6: CONSTRUCTION CONTRACT WITH PETERSON-CHASE GENERAL ENGINEERING CONSTRUCTION, INC. FOR THE TORREY PINES ROAD BRIDGE DECK TREATMENT PROJECT (CLERK’S FILE NO. 406-1)
Council awarded a construction contract for the Torrey Pines Road Bridge Deck Treatment Project (Project) to Peterson-Chase General Engineering Construction, Inc.; and authorized the City Manager to execute the contract, on consent.
ITEM 7: FINANCE COMMITTEE APPOINTMENTS (CLERK’S FILE NO. 401-5) Council appointed Steven McDowell and William (Tate) Scott as voting members to the Committee to serve full three-year terms effective August 1, 2022, and ending on August 31, 2025, on consent.
ITEM 8: FIRST AMENDMENT TO THE AGREEMENT WITH MICHAEL BAKER
INTERNATIONAL FOR AS-NEEDED CIVIL ENGINEERING, TRAFFIC ENGINEERING, AND DEVELOPMENT REVIEW SERVICES (CLERK’S FILE NO. 406-1) The item was pulled from the Consent Calendar for City Council questions. City Manager Jones and Public Works Director Joe Bride responded to Council questions which focused on the Customer Price Index (CPI) increase included in the first amendment.
IT WAS MOVED BY MAYOR WORDEN AND SECONDED BY COUNCILMEMBER
DRUKER TO APPROVE THE FIRST AMENDMENT TO THE AS-NEEDED
CONSULTING SERVICES AGREEMENT WITH MICHAEL BAKER INTERNATIONAL, AMENDING THE COST OF SERVICES; AND AUTHORIZED THE CITY MANAGER TO EXECUTE THE FIRST AMENDMENT, on consent. (VOTE 5-0)
Ayes: Mayor Worden, Deputy Mayor Martinez, and Councilmembers Druker, Gaasterland and Quirk; Noes: 0; Absent: 0; Abstain: 0.
ITEM 9: TASK ORDER WITH HELIX ENVIRONMENTAL FOR THE RIVERPATH DEL MAR EXTENSION PROJECT PHASE 3 (CLERK’S FILE NO. 406-1)
Council approved a task order with Helix Environmental (Helix) for additional environmental services related to the Riverpath Del Mar Extension Project Phase 3, on consent.
PUBLIC HEARING
ITEM 10: CONTINUATION OF A DE NOVO PUBLIC HEARING OF AN APPEAL OF THE DESIGN REVIEW BOARD’S DECISION TO APPROVE DESIGN REVIEW PERMIT (DRB21-018), LAND CONSERVATION PERMIT (LC21-008), AND COASTAL DEVELOPMENT PERMIT (CDP21-012) TO DEMOLISH A 2,091 SQUARE-FOOT, ONE-STORY RESIDENTIAL STRUCTURE AND TO ALLOW CONSTRUCTION OF A NEW 2,000
SQUARE-FOOT, TWO-STORY RESIDENTIAL UNIT WITH ASSOCIATED GRADING, LANDSCAPE, AND SITE IMPROVEMENTS AT 624 8TH STREET IN THE R1-10 ZONE PROJECT APPLICANT: MATTHEW AND CHELSEA ZISKIN
APPELLANTS: NIGEL HOOK AND JANET WILSON
PROJECT LOCATION: 624 8TH STREET/APN# 300-252-14-00
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July 25, 2022
(CLERK’S FILE NO. 301-5)
Councilmember Druker recused himself due to his long-time personal and professional relationship with appellant Nigel Hook. City Attorney Devaney provided an overview of the de novo hearing process and Assistant City Attorney Barry Shultz provided an overview of the voting requirements in the Del Mar Municipal Code, Design Review Ordinance, and outcome of a possible City Council tie vote given that Councilmember Druker is recused from the hearing.
Associate Planner Jennifer Gavin provided a presentation.
Council questions focused on the upper deck and covered patio included in the proposed modified plans versus the original plans that were presented to the City Council at the de novo hearing on May 2, 2022; type of windows proposed on the west side of the upper deck; and proposed changes to the eastern facing wall from the original plans.
Council disclosures related to this public hearing were as follows:
Deputy Mayor Martinez disclosed that, at the request of each resident/property owner, she met with Wynne Darby Spadafora who lives at 611 Hoska and viewed the proposed project looking east from Ms.
Spadafora’s property; met with Susan MacNamara at 623 Hoska in the resident’s backyard which is immediately behind the proposed project; and met with Arline Paa who lives at 612 8 th Street immediately
west of the proposed project. Deputy Mayor Martinez disclosed that both Ms. MacNamara and Ms. Darby Spadafora were concerned that the resubmitted project plans would result in the project being moved 10 feet closer to their properties but did not know where the residents received this information. Deputy Mayor Martinez disclosed that she does not personally know or socialize with the Ziskins, Arline Paa, Susan MacNamara, Wynne Darby Spadafora, Janet Wilson or Nigel Hook. Deputy Mayor Martinez disclosed that she met Janet Wilson once at a site visit related to a separate matter. And, she disclosed that she reviewed prior related agenda materials and viewed previous related meeting recordings.
Councilmember Quirk disclosed that he did not meet with the applicant or any other residents, but reviewed the agenda materials, including the red dots, and reviewed the materials for the de novo hearing held on May 2, 2022. Councilmember Quirk disclosed that he conducted a site visit of the Wilson/Hook residence for the original hearing held on May 2, 2022.
Councilmember Gaasterland disclosed that she reached out to the neighboring property owners that provided public comment on the project including Brooke Houser who lives at 641 Hoska and viewed the project from the perspective of that property; visited the property of Janet Wilson and Nigel Hook located at 635 Hoska prior to the first hearing; and visited the property of Wynne Darby Spadafora located at 611 Hoska, and visited the home of Arline Paa who lives at 612 8 th Street with Deputy Mayor Martinez.
Councilmember Gaasterland disclosed that she has not socialized with Arline Paa, the Darbys/Spadaforas, Brooke Houser or her family, the Ziskins, nor Janet Wilson or Nigel Hook.
Councilmember Gaasterland disclosed that she reviewed the agenda materials, red dots, and meeting recordings associated with the hearing.
Mayor Worden disclosed that he visited both the applicant and the appellant’s properties prior to the May 2, 2022, hearing which he disclosed at that hearing, read the agenda report for the hearing, watched the Design Review Board hearing, reviewed the red dots, declined to visit the sites again, submitted questions to staff, and re-watched the May 2, 2022 City Council meeting recording and reviewed those agenda materials. Mayor Worden disclosed that he has not socialized with any parties involved in the hearing including Janet Wilson, Nigel Hook, and the Ziskins. 4 August 10, 2022 Item 01
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July 25, 2022
Mayor Worden gave the applicant the opportunity to present their project. Applicant Matt Ziskin stated that he would like to withdrawal their proposed revised plans, with the intent to resubmit another version of the plans for the project in the future, due to the new information received this evening regarding the outcome of a tie vote.
Council discussed Mr. Ziskin’s request and options for proceeding. The Council received feedback from the City Manager and legal guidance from Assistant City Attorney Shultz.
Mayor Worden opened the item to public comment and the following people spoke:
1) Laura DeMarco
2) Susie MacNamara
Mayor Worden closed the item to public comment.
Council discussed the public comments related to site visits.
IT WAS MOVED BY COUNCILMEMBER QUIRK, SECONDED BY MAYOR WORDEN TO CONTINUE THE HEARING TO AUGUST 10, 2022, IF POSSIBLE, OR TO THE NEXT AVAILABLE MEETING, SO THAT THE ZISKINS HAVE THE OPPORTUNITY TO RESUBMIT THEIR PROJECT. (VOTE 4-0-1
WITH COUNCILMEMBER DRUKER RECUSED)
Ayes: Mayor Worden, Deputy Mayor Martinez, and Councilmembers Gaasterland and Quirk; Noes:
0; Absent: 0; Abstain: Councilmember Druker.
It was the consensus of the Council that the reinstallation of story poles would not be required if the Ziskins were to return to the City Council on August 10, 2022, with the prior plans that were previously considered by the Design Review Board, due to timing constraints.
ITEM 11: CONTINUED FROM JULY 11, 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”). (CLERK’S FILE NO. 401-4, 406-1) Mayor Worden opened the public hearing. There were no public speakers for the item. This item was then moved to the Consent Calendar for approval.
IT WAS MOVED BY COUNCILMEMBER GAASTERLAND, SECONDED BY COUNCILMEMBER
DRUKER TO INTRODUCE THE PROPOSED ORDINANCE APPROVING DEVELOPMENT AGREEMENT DA22-001 AND AN ASSOCIATED REGULATORY HOUSING AGREEMENT FOR 941 CAMINO DEL MAR, on consent. (VOTE 5-0)
Ayes: Mayor Worden, Deputy Mayor Martinez, and Councilmembers Druker, Gaasterland and Quirk; Noes: 0; Absent: 0; Abstain: 0.
CITY COUNCIL OTHER BUSINESS
ITEM 12: AMENDED 2022 CITY COUNCIL MEETING SCHEDULE (CLERK’S FILE NO. 401-1) The item was moved to the Consent Calendar for approval. Council adopted Resolution 2022-55, “A
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DEL MAR, CALIFORNIA, AMENDING THE 5 August 10, 2022 Item 01
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July 25, 2022
REGULAR MEETING SCHEDULE OF THE CITY COUNCIL FOR THE 2022 CALENDAR YEAR”, on consent.
REGIONAL ORGANIZATION AND COUNCIL COMMITTEES/SUBCOMMITTEES/COMMUNITY
ORGANIZATION REPORTS
City Council representatives reported on the Traffic and Parking Advisory Committee; North County Transit District Board; Clean Energy Alliance; Regional Solid Waste Association; San Diego Association of Government Shoreline Preservation Working Group; Lagoon Committee; Sustainability Advisory Committee; and Del Mar Foundation.
ADJOURNMENT
Mayor Worden adjourned the meeting at 6:32 p.m.
__
Sarah Krietor, Administrative Services Manager/
City Clerk
6 August 10, 2022 Item 01
DEL MAR CITY COUNCIL
SPECIAL MEETING MINUTES
CLOSED SESSION
JULY 25, 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 - Significant Exposure to Litigation Number of Cases: One
Description: Liabilities related to the proposed 941 Camino del Mar Development Agreement
Authority: Government Code Section 54956.9(b)
Reportable Action: None.
B) 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.
C) Conference with Legal Counsel – Existing Litigation
Wilson/Hook v. City of Del Mar
San Diego Superior Court Case No. 37-2022-00005589-CU-WM-CTL Authority: Government Code Section 54956.9(d)(1)
Reportable Action: None. Councilmember Druker was recused due to his personal and professional relationship with Nigel Hook and Janet Wilson.
ADJOURNMENT
Mayor Worden adjourned the meeting at 4:21 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: Karen Brindley, Planning and Community Development Director Matt Bator, AICP, Principal Planner
Via Ashley Jones, City Manager
DATE: August 10, 2022
SUBJECT: Adoption 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:
Staff recommends the City Council: 1) Adopt the proposed Ordinance (Attachment A) approving Development Agreement DA22-001 (Exhibit A to Attachment A); and 2) Authorize the City Manager to execute and record Development Agreement DA22-01 and its related exhibits.
EXECUTIVE SUMMARY:
On July 25, 2022, the City Council introduced the proposed Ordinance (Attachment A) approving Development Agreement DA22-001 (Ordinance Exhibit A) and an associated Regulatory Housing Agreement (Exhibit C to DA22-001) for 941 Camino del Mar. This agenda item is the second reading and final adoption of the Ordinance.
Upon adoption, the Ordinance will become effective in 30 days on September 9, 2022.
Within 30 days of the Ordinance becoming effective (October 9, 2022), the City Manager will ensure that Development Agreement DA22-001 is recorded with the Office of the San Diego County Recorder.
DISCUSSION/ANALYSIS:
As required by City Council Resolution 2018-71, the Applicant (Property Owner) proposes to enter into a Development Agreement (DA22-001) with the City of Del Mar for the approved two-story, 38,890 square-foot, mixed-use development that includes eight residential units (including two dedicated as affordable to low-income households) and approximately 4,398 square-feet of commercial space at 941 Camino del Mar and 3017 10th Street. 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. 1 August 10, 2022 Item 04
City Council Agenda Report
941 CDM Development Agreement & Regulatory Housing Agreement August 10, 2022
If adopted by the City Council as proposed, DA22-001 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 required monetary contributions associated with the City adoption and voter approval of the 941 Camino del Mar Specific Plan to the City, which will be due at the time DA22-001 is recorded with the County of San Diego.
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) approved affordable housing units with the development. The Regulatory Agreement and is included as “DA Exhibit C” of the Development Agreement.
The City Council held a public hearing to introduce an Ordinance that would approve a Development Agreement (DA22-001) and an associated Regulatory Housing Agreement for the entitlement development for 941 Camino del Mar (941 CDM) on July 11, 2022.
The public hearing was continued by the City Council to July 25, 2022 when the Ordinance was introduced by a unanimous vote of the Council. Additional background related to the Ordinance introduction and development agreement itself can be found in the July 25, 2022 agenda report, which can be accessed at https://www.delmar.ca.us/AgendaCenter.
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. 2 August 10, 2022 Item 04
City Council Agenda Report
941 CDM Development Agreement & Regulatory Housing Agreement August 10, 2022
ENVIRONMENTAL STATUS:
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 for the 941 Specific Plan and associated development project. This development agreement for the project has been assessed for compliance with the certified SEIR, and pursuant to California Public Resources Code Section 21166 and Section 15162 of the CEQA Guidelines, no additional environmental review is required.
ATTACHMENTS:
Attachment A - City Council Ordinance for approval of DA22-001 3 August 10, 2022 Item 04
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
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
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 4 August 10, 2022 Item 04
Ordinance No. XXX
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
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
5 August 10, 2022 Item 04
Ordinance No. XXX
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; and 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 25, 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 25, 2022, which, along with its attachments, is incorporated by this reference as though fully set forth herein.
d. Additional information submitted during the hearing.
NOW, THEREFORE, the City Council of the City of Del Mar, California, 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 6 August 10, 2022 Item 04
Ordinance No. XXX
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.
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 7 August 10, 2022 Item 04
Ordinance No. XXX
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 25, 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 10th day of August 2022.
_____________________________________
Dwight Worden, Mayor
City of Del Mar
APPROVED AS TO FORM:
________________________
Leslie E. Devaney, City Attorney
City of Del Mar
8 August 10, 2022 Item 04
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 10th day of August, 2022, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
_______________________________________
Sarah Krietor, City Clerk/Administrative Services
Manager, City of Del Mar
9 August 10, 2022 Item 04
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
10 August 10, 2022 Item 04
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 11 August 10, 2022 Item 04
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 12 August 10, 2022 Item 04
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. 13 August 10, 2022 Item 04
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 14 August 10, 2022 Item 04
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.
15 August 10, 2022 Item 04
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 3.12.
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 16 August 10, 2022 Item 04
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 17 August 10, 2022 Item 04
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.
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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 19 August 10, 2022 Item 04
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 20 August 10, 2022 Item 04
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:
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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 22 August 10, 2022 Item 04
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
23 August 10, 2022 Item 04
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.]
24 August 10, 2022 Item 04
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:
25 August 10, 2022 Item 04
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
26 August 10, 2022 Item 04
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
27 August 10, 2022 Item 04
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. 28 August 10, 2022 Item 04
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. 29 August 10, 2022 Item 04
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. 30 August 10, 2022 Item 04
(Ord. No. 811, § 1(part), 2008)
24.65.110 Development agreement—Hearing by City Council.
A. Upon receipt of the application and the written recommendation of the Planning Commission, the City Council shall set a date for a public hearing on the matter.
B. The City Clerk shall insure that the public is given notice of the public hearing in accordance with Section
24.65.070.
C. The public hearing shall be conducted as required by Section 24.65.080. (Ord. No. 811, § 1(part), 2008)
24.65.120 Action by City Council.
A. After the public hearing, the City Council may approve, modify or disapprove the recommendation of the Planning Commission. It may refer back to the Planning Commission, for report and recommendation, matters not previously considered by the Planning Commission.
B. Upon receipt of a referral as set forth in Subsection A., the Planning Commission, without further public hearing, shall consider the new matters and report its recommendations in writing to the City Council within 40 days after receipt of said referral. Failure to act within the 40-day limit shall constitute a favorable endorsement on the matters set forth in the referral.
C. If the City Council approves the development agreement it shall do so by ordinance. (Ord. No. 811, § 1(part), 2008)
24.65.130 Requirements for approval.
No development agreement may be approved by the City Council unless all of the following conditions are met:
A. The City Council must find that:
1. The provisions of the agreement are consistent with the Community Plan and any applicable specific plan, and
2. The development agreement complies with all applicable zoning, subdivision, and building regulations and with the general and any relevant specific plan.
B. The agreement must state:
1. The specific duration of the agreement;
2. The permitted uses of the property;
3. The density and intensity of use;
4. The maximum height and size of proposed buildings;
5. Specific provisions for reservation or dedication of land for public purposes. (Ord. No. 811, § 1(part), 2008)
31 August 10, 2022 Item 04
Created: 2022-01-04 11:02:14 [EST]
(Supp. No. 7, Update 2)
24.65.140 Effective date of development agreement.
In adopting this Chapter, the City Council recognizes the fact that a development agreement is a legislative act which is subject to referendum. Therefore, notwithstanding the fact that the City Council adopts an ordinance approving a development agreement and causes said agreement to be signed, said agreement shall be effective and shall only create obligations on the part of the City from and after the date that the ordinance approving said development agreement takes effect.
(Ord. No. 811, § 1(part), 2008)
24.65.150 Development agreement—Amendment or cancellation.
Either party may propose an amendment to or cancellation in whole or in part of a development agreement previously entered into. However, with the exception of modification or revocation pursuant to Sections 24.65.190 through 24.65.240, both parties must agree in writing to an amendment, or cancellation, of a development agreement before it shall be effective.
(Ord. No. 811, § 1(part), 2008)
24.65.160 Amendment or cancellation procedure.
A. The procedure for proposing an adoption of an amendment to or cancellation in whole or in part of the development agreement is the same as the procedure for entering into an agreement in the first instance as outlined in this Chapter.
B. However, where the City Council initiates the proposed amendment to or cancellation in whole or in part of the development agreement, it shall first give notice to the property owner of its intention to initiate such proceedings at least 15 calendar days in advance of the giving of notice of the public hearing regarding the amendment or cancellation pursuant to Section 24.65.070. (Ord. No. 811, § 1(part), 2008)
24.65.170 Recordation of development agreement, amendment or cancellation.
A. Within ten days after the effective date of the development agreement, the City Clerk shall have the agreement recorded with the County Recorder.
B. If the parties to the agreement or their successors in interest amend or cancel the agreement as provided in Government Code § 65868, or if the City terminates or modifies the agreement as provided in Government Code § 65865.1 for failure of the applicant to comply in good faith with the terms or conditions of the agreement, the City Clerk shall have notice of such action recorded with the County Recorder. (Ord. No. 811, § 1(part), 2008)
24.65.180 Development agreement—Duration.
The City Council may establish the term of a development agreement at the time said development agreement is approved by the City Council.
(Ord. No. 811, § 1(part), 2008)
32 August 10, 2022 Item 04
Created: 2022-01-04 11:02:14 [EST]
(Supp. No. 7, Update 2)
24.65.190 Same—Periodic review.
A. Notwithstanding the provisions of Section 24.65.180, periodic reviews of the development agreement shall be conducted as follows:
1. The City Council shall review the development agreement at least once every 12 months after the effective date of the adopting ordinance (hereinafter "annual review").
2. The City Council may, on its own motion or on the advice of the City Manager, review the development agreement more often than once every 12 months as it is deemed necessary (hereinafter "special review").
3. The City Council may delegate or refer the periodic review of the development agreement to the City Manager or his/her designated representative.
(Ord. No. 811, § 1(part), 2008)
24.65.200 Notice of periodic review.
Notice of periodic review shall be given as follows:
A. Notice to Developer.
1. The Director of Planning and Community Development shall give the developer 30 calendar days' advance notice of annual review, by placing such notice to the developer into the U.S. Mail, first class, postage prepaid, and addressed to such address as the developer has listed in the development agreement.
2. The City Clerk shall give the developer notice of a special review in the same manner as provided in Subsection A.1. above for annual review.
B. Notice to the Public. Public notice of annual or special reviews shall be accomplished as set forth in Section 24.65.070.
(Ord. No. 811, § 1(part), 2008)
24.65.210 Periodic review—Hearing, burden, findings.
A. Any periodic review conducted pursuant to Section 24.65.190 shall be accomplished in the form of a public hearing as required by Section 24.65.080.
B. The burden shall be on the developer, or his successor in interest, to demonstrate good-faith compliance with the terms of the agreement.
C. At the conclusion of the public hearing, the City Council shall make findings regarding whether or not the developer has, for the period under review, complied in good faith with the terms and conditions of the agreement.
(Ord. No. 811, § 1(part), 2008)
33 August 10, 2022 Item 04
24.65.220 Same—Action by council.
A. If the City Council finds and determines on the basis of the evidence given that the property owner has complied in good faith with the terms and conditions of the agreement during the period under review, the review for that period shall be concluded.
B. If the City Council finds and determines on the basis of substantial evidence that the property owner has not complied in good faith with the terms and conditions of the agreement during the period under review, the council may modify or terminate the agreement.
C. If the periodic review has been referred by the City Council to the City Manager or his/her designated representative, the determination resulting from said review shall be appealable in writing to the City Council within ten calendar days after the final action. A hearing shall be conducted in accordance with the City Council's rules for consideration of appeals.
D. If the periodic review is conducted by the City Council, the determination resulting from said review shall be deemed to be final for all purposes.
(Ord. No. 811, § 1(part), 2008)
24.65.230 Same—Modification or termination of agreement—Public hearing, notice.
A. If, upon a finding pursuant to Subsection 24.65.220.B., the City determines to proceed with modification or termination of the agreement, the City shall set a hearing date and give notice to the property owner and the public of the hearing. Said notice shall be given in the manner set forth in Sections 24.65.200 and 24.65.070.
B. In addition to the informational content required by Sections 24.65.200 and 24.65.070, the notice required by this Section shall contain:
1. A statement concerning whether the City proposes to terminate or to modify the development agreement;
2. Other information which the City considers necessary to inform the property owner of the nature of the proceedings.
(Ord. No. 811, § 1(part), 2008)
24.65.240 Same—Modification or termination—Hearing.
A. Any public hearing on the subject of modification or termination of the agreement based upon a periodic review, shall be conducted in the manner prescribed by Section 24.65.080.
B. Upon concluding said hearing, the City Council may take whatever action it deems necessary to protect the interests of the City.
C. The decision of the City Council shall be final.
(Ord. No. 811, § 1(part), 2008)
34 August 10, 2022 Item 04
DA EXHIBIT B
Legal Description of the Development Site
LOTS 4, 5, AND 6 IN BLOCK 62 OF DEL MAR, IN THE CITY OF DEL MAR, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 368, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, OCTOBER 7, 1885, TOGETHER WITH THAT PORTION OF THE SOUTHERLY 20.00 FEET OF TENTH STREET AS SHOWN ON SAID MAP, WHICH LIES NORTHERLY OF AND
IMMEDIATELY ADJOINS SAID LOTS, AS VACATED AND CLOSED TO PUBLIC USE BY ORDER OF THE BOARD OF SUPERVISORS OF SAID SAN DIEGO COUNTY, RECORDED APRIL 16, 1926 IN BOOK 1209, PAGE 125
OF DEEDS, TOGETHER WITH THAT PORTION OF THE NORTHERLY HALF OF THE ALLEY AS SHOWN ON
SAID MAP, WHICH LIES SOUTHERLY OF AND IMMEDIATELY ADJOINS SAID LOTS, AS VACATED AND CLOSED TO PUBLIC USE BY ORDER OF SAID BOARD OF SUPERVISORS, RECORDED MAY 17, 1929 IN BOOK 1613, PAGE 470 OF DEEDS.
APN: 300-221-33-00 and 300-221-32-00
35 August 10, 2022 Item 04
DA EXHIBIT C
2131\01\3253325.2
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of Del Mar
City Clerk’s Office
1050 Camino Del Mar
Del Mar, CA 92014
THE AREA ABOVE IS RESERVED FOR RECORDER'S USE
APN No. 300-221-32 and 300-221-33
This Regulatory Agreement is recorded at the
request and for the benefit of the City of Del
Mar and is exempt from the payment of a
recording fee pursuant to Government Code
Sections 27383.
This Regulatory Agreement and Declaration of Restrictive Covenants (“Agreement”) is between DM Asset Recovery LP, a California limited partnership (“Property Owner”) and the City of Del Mar, a municipal corporation (“City”).
RECITALS
A. Property Owner owns certain real property located in the City of Del Mar, County of San Diego, California consisting of approximately 25,524 square feet located at the southeast corner of Camino Del Mar and 10th Street (APN 300-221-32 and 300-221-33) and more specifically described in Exhibit A, attached hereto and incorporated herein by this reference (“Property”).
B. Property Owner submitted a Specific Plan to the City, commonly known as the 941 Camino del Mar Specific Plan, which provides the vision, standards, and guidelines for development of the Property.
C. On June 18, 2018, the City Council adopted the Specific Plan, and the Plan was subsequently approved by a public vote on November 6, 2018.
D. The Specific Plan requires that 20% of the market rate Residential Hospitality units plus one additional residential unit developed on the Property must be affordable housing and provides that density calculations resulting in a fraction of one-half (0.5) or greater of a residential unit shall be rounded up to the next whole number and a remaining fraction of less than one-half shall be rounded down. Upon completion of construction the Property Owner intends to offer 36 August 10, 2022 Item 04
2 for sale the resulting two (2) affordable units to the City or to income-qualifying households at the Restricted Sales Price (as defined below).
E. Property Owner and City have entered into a Development Agreement which sets forth specific exceptional benefits, including the affordable housing requirements, to be implemented by the Property Owner in connection with the development of the Property and consistent with the requirements of the Specific Plan.
F. The Property Owner and City now desire to enter into this Agreement to set forth their agreement regarding the affordable housing restrictions with respect to the residential units and to cause the affordable housing restrictions to run with the land.
NOW, THEREFORE, the Property Owner and City hereby agree as follows:
1. Definitions
Unless otherwise defined herein or in the Development Agreement (as such term is defined below), capitalized terms used in this Regulatory Agreement shall have the respective meanings assigned to them in this Section 1:
1.1 "Actual Household Size" means the actual number of persons in the applicable household.
1.2 “Adjusted Income” shall mean the adjusted income of all persons who intend to reside in one residential unit, calculated in the manner consistent with determinations of household income for low-income families by the California Department of Housing and Community Development, as calculated in accordance with 25 California Code of Regulations Section 6914 or pursuant to a successor State housing program that utilizes a reasonably similar method of calculation of adjusted income.
1.3 “Development Agreement” means that certain Development Agreement between the City and Property Owner dated as of , 2022, as it may be amended from time to time.
1.4 “Median Income for the Area” shall mean the gross yearly median income for San Diego County adjusted for household size as most recently published by the California Department of Housing and Community Development. In the event that such income determinations are no longer published, or are not updated for a period of at least eighteen (18) months, the City shall provide the Developer with other income determinations which are reasonably similar with respect to methods of calculation to those previously published by the State.
1.5 “Parties” shall mean City and Property Owner.
37 August 10, 2022 Item 04
3 1.6 “Project” means collectively the Property and the structures and related buildings, and other improvements located on the Property from time to time together with all fixtures and other property owned by the Property Owner and located on, or used in connection with, such buildings, structures, and other improvements.
1.7 “Property” means the real property legally described in Exhibit A which is attached hereto and by this reference incorporated herein.
1.8 “Qualified Project Period” shall mean the period beginning upon the certification of occupancy of the Restricted Units and ending on the date which is fifty-five (55) years after the beginning of the Qualified Project Period.
1.9 “Qualified Household” shall mean the individuals occupying the Restricted Units with Adjusted Income meeting the maximum qualifying income level, adjusted for household size appropriate for the unit to be purchased.
1.10 “Regulatory Agreement” or “Agreement” means this Regulatory Agreement.
1.11 “Restricted Sales Price” means the initial sale price that will result in a Qualified Household’s annual housing expenses (average monthly payments, including property taxes, homeowner's insurance, homeowner's association dues, if any, mortgage loan principal and interest, mortgage insurance, and a reasonable allowance for utilities (as provided by the City) not exceeding the "affordable housing cost" as defined in Health and Safety Code Section 50052.5(b)(3) for Low Income Households and Section 50052.5(b)(2) for Very Low Income Households, adjusted for household size appropriate for the unit, consistent with formula described in attached Exhibit B. “Household size appropriate for the unit” means one person for a studio and two persons for a one-bedroom unit. “Maximum qualifying income level means:
For Low-Income Households: an individual or household whose gross income is 80% or less of the Median Income for the Area, adjusted for household size computed pursuant to California Health and Safety Code sections 50079.5 and 50052.5, as may be amended.
Very Low-Income Households: an individual or household whose gross income is 50% or less of the Median Income for the Area, adjusted for household size computed pursuant to California Health and Safety Code sections 50079.5 and 50052.5, as may be amended.
All maximum Restricted Sale Price for each subsequent sale shall be governed under the terms of the Deed Restriction.
1.12 “Restricted Unit” or “Restricted Units” means the affordable residential hospitality units identified in Exhibit C attached hereto and incorporated herein 38 August 10, 2022 Item 04
4 required to be sold to the City or to Qualified Households pursuant to the terms, covenants, and conditions of this Agreement.
1.13 “Owner Occupied” means that the owner(s) of a Restricted Unit occupying said unit as their primary residence for at least ten (10) months out of each calendar year, subject to temporary waivers of this occupancy requirement for good cause such as to facilitate sale of the Restricted Unit to a Qualified Household, illness, temporary job relocation, military deployment, or sabbatical. If and to the extent the City acquires the unit, Owner Occupied shall be understood to mean occupancy by an income eligible household selected by the City.
2. Property Owner hereby represents, warrants and covenants as follows:
(a) Use of Restricted Units.
As part of the initial sale of the RESTRICTED UNITS the Owner shall cause to be recorded with the San Diego County Recorder’s office a legally enforceable Deed Restriction in form substantially similar to that attached hereto as Exhibit D and approved as to form by the Del Mar City Attorney limiting and requiring the initial sale of the RESTRICTED UNITS of the PROJECT to the City or to QUALIFIED HOUSEHOLDS for no more than the RESTRICTED SALES PRICE, as determined by the City. Property Owner and successor owners of the RESTRICTED UNITS shall not sell or permit the sale of any RESTRICTED UNIT in the PROJECT except as provided in the Deed Restriction for the entire QUALIFIED PROJECT PERIOD. If and to the extent the City acquires the RESTRICTED UNITS, then the City shall cause a use restriction to be recorded against the fee interest in the RESTRICTED UNITS acquired by the City to ensure the unit remains affordable to Qualified Households in perpetuity.
Pursuant to the Deed Restriction, each RESTRICTED UNIT shall be OWNER OCCUPIED for the entire QUALIFIED PROJECT PERIOD, as verified to the City through submission of an annual “Owner Occupied Annual Certification” form substantially similar to that attached hereto as Exhibit E and approved as to form by the Del Mar City Attorney. No leasing or renting, of any RESTRICTED UNIT shall be permitted. No RESTRICTED UNITS or any portion of a RESTRICTED UNUT shall be offered or let as Short Term Rentals. If and to the extent the City or a City designee acquires the RESTRICTED UNITS, the RESTRICTED UNIT may be rented to an income eligible household at an affordable rent as defined in Health and Safety Code Section 50053.
Each RESTRICTED UNIT shall be burdened with the covenants delineated in the Deed Restriction, which covenants shall run with the land applicable to each RESTRICTED UNIT for the benefit of the City, which may enforce the covenants and compel compliance therewith. (b) First Sale of Restricted Units.
For the first sale of RESTRICTED UNITS, Property Owner shall sell the RESTRICTED UNITS to the City (the "City Option") or a QUALIFIED HOUSEHOLD for no more than the RESTRICTED SALES PRICE. If the City opts not to purchase, Property Owner 39 August 10, 2022 Item 04
5 shall adopt and submit to the City for approval, written purchaser selection policies and criteria that meet, at a minimum, all the following requirements:
a. Are consistent with the purpose of providing housing for QUALIFIED HOUSEHOLDS.
b. Provide for:
i. The selection of QUALIFIED HOUSEHOLDS from a written waiting list in the chronological order of their application in so far as is practicable;
ii. The prompt written notification to any rejected applicant of the grounds for any rejection.
c. Carry out the affirmative marketing procedures of the City, to provide information and otherwise attract eligible persons from all racial, ethnic and gender groups in the housing market area to the program. Property Owner and City shall cooperate to effectuate this provision prior to the first sale of each RESTRICTED UNIT.
The City may, instead of purchasing the RESTRICTED UNITS itself, assign its right to purchase the RESTRICTED UNITS pursuant to the City Option to another public agency, a nonprofit corporation, or to a Qualified Household. In the event the City desires to exercise the City Option, the City shall provide Property Owner written notice within ninety (90) days of the date when permitted (vertical) construction of street-level walls commences. Written notice of vertical construction shall be provided to the City by the Developer. Within ninety (90) days of City election to exercise its purchase rights, the City or its assignee shall execute a binding agreement to purchase the RESTRICTED UNITS. Title shall be delivered by the Owner to the City by grant deed, free and clear of any mortgage or other liens, unless approved in writing by the City. (c) Second and Subsequent Sales of Restricted Units
All subsequent sales of RESTRICTED UNITS sold to QUALIFIED HOUSEHOLDS will be governed by the Deed Restriction recorded at the time of initial sale. Subsequent sales of RESTRICTED UNITS sold to the City (or a City designee) shall be subject to the use restriction that requires the owner to ensure the unit remains affordable to Qualified Households. (d) Nondiscrimination Covenant.
Property Owner herein covenants by and for itself, its heirs, executors, administrators, successors, and assigns, and all persons claiming under or through them: That there shall be no discrimination against or segregation of any person or group of persons, on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the PROPERTY, nor shall Property Owner itself or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy of tenants, lessees, subtenants, sublessees, or vendees of the PROPERTY. 40 August 10, 2022 Item 04
6 a. Property Owner, its successors, and assigns, shall refrain from restricting the sale of the PROPERTY or any portion thereof, on the basis of race, color, creed, religion, sex, sexual orientation, marital status, national origin, or ancestry of any person. Every deed and contract entered with respect to the PROPERTY, or any portion thereof, shall contain or be subject to substantially the following nondiscrimination or non-segregation clauses:
(1) In deeds: “The grantee herein covenants by and for themselves, or their heirs, executors, administrators, and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the premises herein conveyed, nor shall the grantee or any person claiming under or through themselves establish or permit any practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees, or vendees in the premises herein conveyed. The foregoing covenants shall run with the land.”
(2) In contracts: “There shall be no discrimination against or segregation of any person or group of persons, on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the land, nor shall the transferee itself or any person claiming under or through themselves establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy, of tenants, lessees, sublessees, subtenants, or vendees of the land.”
3. Maintenance; Compliance with Law.
During the QUALIFIED PROJECT PERIOD, Property Owner agrees to pay all required homeowners’ association dues and to maintain all interior and exterior improvements, including landscaping on the PROJECT in good condition, repair and sanitary condition (and as to landscaping in a healthy condition) and in accordance with any management plan approved by the City under this Agreement as the same may be amended from time to and all other applicable laws, rules ordinances orders and regulations of federal state, county or municipal and other governmental agencies and bodies having or claiming jurisdiction. 41 August 10, 2022 Item 04
7 4. Consideration.
The City approved the PROJECT entitlements in part in reliance upon the Property Owner providing the affordable housing as set forth in this Agreement. In consideration for the City approvals Property Owner has entered into this Agreement and has agreed to restrict the RESTRICTED UNITS of the PROJECT on the terms and conditions set forth herein and to grant the City an option to acquire the RESTRICTED UNITS at the RESTRICTED SALES PRICE.
The requirements of the of this Agreement, shall be satisfied with respect to the Property if the Owner constructs or causes to be constructed the RESTRICTED UNITS and the RESTRICTED UNITS are sold to the City or to Eligible Buyers.
5. Sale or Transfer of the Project.
Property Owner hereby covenants and agrees not to voluntarily sell, transfer, or otherwise dispose of the PROPERTY or the PROJECT without obtaining the prior written consent of the City, which will not be unreasonably withheld. Each transferee shall expressly assume all applicable obligations of Property Owner imposed by this Agreement. Notwithstanding anything herein to the contrary, this section shall not apply to a foreclosure under any construction or permanent financing related to the construction, development, or operation of the PROJECT. Property Owner shall not sell the Project prior to completion of construction unless it first obtains the City’s approval of any prospective purchaser, such approval not to be unreasonably withheld. Property Owner shall ensure that such purchaser can demonstrate to the City it has experience in operating projects of relatable scope to the Project, and that the purchaser does not have a record of substantial loan defaults, maintenance problems, building code violations, or substantiated fair housing or other complaints at properties it owns and/or operates. Within 30 days of receiving notice of the sale and information regarding the prospective purchaser, the City shall exercise its right to approve or disapprove the prospective purchaser. Sale of individual market rate units or commercial units shall not require City review and approval. Sale of the Project after construction shall not require City review and approval.
6. Term.
This AGREEMENT and all and each of the provisions hereto shall become effective upon its execution and delivery, shall remain in full force and effect for a period of fifty-five (55) years from the date of issuance of certificate of occupancy for the last of the RESTRICTED UNITS, it being expressly agreed and understood that the provisions hereof are intended to survive termination of the DEVELOPMENT AGREEMENT.
7. Covenants to Run with the Land.
(a) All conditions, covenants , and restrictions contained in this AGREEMENT shall be covenants running with the land, and shall, in any event, and without regard to technical classification or designation, legal or otherwise, be, to the fullest extent permitted by law and equity, binding for the benefit and in favor of, and enforceable by City, its 42 August 10, 2022 Item 04
8 successors and assigns, against Property Owner, its successors and assigns, to or of the PROJECT or any portion thereof or any interest therein, and any party in possession or occupancy of said PROJECT or portion thereof.
(b) In amplification and not in restriction of the provisions set forth hereinabove, it is intended and agreed that City shall be deemed a beneficiary of the AGREEMENTS and covenants provided hereinabove both for and in its own right and also for the purposes of protecting the interests of the community. All covenants without regard to technical classification or designation shall be binding for the benefit of City and such covenants shall run in favor of City for the entire period during which such covenants shall be in force and effect, without regard to whether City is or remains an owner of any land or interest therein to which such covenants relate. City shall have the right, in the event of any breach of any such agreement or covenant, to exercise all the rights and remedies, and to maintain any action at law or suit in equity or other proper proceedings to enforce the curing of such breach of AGREEMENT or covenant.
(c) The City and its successors and assigns, and Property Owner and the permitted successors and assigns of Property Owner in and to all or any part of the fee title to the PROJECT shall jointly have the right upon written agreement signed by both PARTIES to consent and agree to changes in, or to eliminate in whole or in part, any of the covenants, easements, or restrictions contained in this AGREEMENT without the consent of any tenant, lessee, easement holder, licensee, mortgagee, trustee, beneficiary under a deed of trust, or any other person or entity having any interest less than a fee in the PROJECT. The covenants contained in this AGREEMENT, without regard to technical classification shall not benefit or be enforceable by any owner of any other real property within or outside the PROJECT, or any person or entity having any interest in any other such realty.
(d) No breach of any of the provisions of this AGREEMENT shall impair, defeat, or render invalid the lien of any mortgage, deed of trust or like encumbrance made in good faith and for value encumbering the PROPERTY or the PROJECT or any portion thereof.
8. Burden and Benefit.
The City and the Property Owner hereby declare their understanding and intent that the burden of the covenants set forth herein touch and concern the PROPERTY and the PROJECT in that the Property Owner’s legal interest in the PROJECT may be rendered less valuable thereby. The City and the Property Owner hereby further declare their understanding and intent that the benefit of such covenants touching and concerning the land is the enhancement and increased enjoyment and use of the PROJECT by QUALIFIED TENANTS, the intended beneficiaries of such covenants, reservations, and restrictions, and by the furthering of public purposes for which the entitlements were approved.
9. Uniformity; Common Plan.
The covenants, reservations and restrictions hereof shall apply uniformly to the entire PROJECT to establish and carry out a common plan for the use, development, and 43 August 10, 2022 Item 04
9 improvement of the PROJECT.
10. Default.
Each of the following shall constitute an “Event of Default” by Property Owner under this AGREEMENT:
(a) Non-Monetary Failure to Perform. Property Owner fails to construct the RESTRICTED UNITS or otherwise fails to timely perform, comply with, or observe any of the terms, covenants, or-conditions of this AGREEMENT (other than those provisions elsewhere referred to in this Section 12) and such failure continues uncured or without Property Owner commencing to diligently cure for thirty (30) days after notice thereof in writing is given by the City to Property Owner; provided if Property Owner has commenced cure but cannot complete such cure reasonably within 30 days. Property Owner shall have 90 days from the date of notice to cure such failure without such failure constituting an event of default.
(b) Voluntary Suspension. The voluntary suspension of Property Owner business or the dissolution or termination of the partnership (if any) constituting Property Owner; (c) Unauthorized Transfer. Property Owner sale or other transfer of the PROJECT in violation of this AGREEMENT;
(d) Insolvency. A court having jurisdiction shall have made or entered any decree or order (i) adjudging Property Owner to be bankrupt or insolvent, (ii) approving as properly filed a petition seeking reorganization of Property Owner or seeking any arrangement for Property Owner under the bankruptcy law or any other applicable debtor's relief law or statute of the United States or any state or other jurisdiction, (iii) appointing a receiver, trustee , liquidator, or assignee of Property Owner in bankruptcy or insolvency or for any of their properties, or (iv) directing the winding up or liquidation of Property Owner, if any such decree or order described in clauses (i) to (iv), inclusive, shall have continued unstayed or undischarged for a period of ninety (90) days unless a lesser time period is permitted for cure under any mortgage on the PROPERTY, in which event such lesser time period will apply under this subsection 12 (d) as well; or Borrower shall have admitted in writing its inability to pay its debts as they fall due or shall have voluntarily submitted to or filed a petition seeking any decree or order of the nature described in clauses (i) to (iv), inclusive.
11. Remedies.
The occurrence of any Event of Default shall, either at the option of the City or automatically where so specified, give the City the right to proceed with any and all remedies set forth in this AGREEMENT or otherwise available at law or in equity or by statute (and all of the City's rights and remedies shall be cumulative), including but not limited to the following:
(a) Specific Performance. The City shall have the right to mandamus or other suit, 44 August 10, 2022 Item 04
10 action or proceeding at law or in equity to require Property Owner to perform its obligations and covenants under this AGREEMENT and/or to enjoin acts on things, which may be unlawful, or in violation of the provisions of this AGREEMENT. (b) Remedies Cumulative. No right, power, or remedy given to the City by the terms of this AGREEMENT is intended to be exclusive of any other right, power, or remedy; and each and every such right, power, or remedy shall be cumulative and in addition to every other right, power, or remedy given to the City by the terms of any such instrument, or by any statute or otherwise against Property Owner and any other person. Neither the failure nor any delay on the part of the City to exercise any such rights and remedies shall operate as a waiver thereof, nor shall any single or partial exercise by the City of any such tight or remedy preclude any other or further exercise of such right or remedy, or any other right or remedy. (c) Waiver of Terms and Conditions. No waiver of any default or breach by Property Owner hereunder shall be implied from any omission by the City to take action on account of such default if such default persists or is repeated, and no express waiver shall affect any default other than the default specified in the waiver, and such waiver shall be operative only for the time and to the extent therein stated. Waivers of any covenant, term, or condition contained herein shall not be construed as a waiver of any subsequent breach of the same covenant, term, or condition. The consent or approval by the City to or of any act by Property Owner requiring further consent or approval shall not be deemed to waive or render unnecessary the consent or approval to or of any subsequent similar act. The exercise of any right, power, or remedy shall in no event constitute a cure or a waiver of any default under this AGREEMENT nor shall it invalidate any act done pursuant to notice of default or prejudice the City in the exercise of any right, power, or remedy hereunder unless in the exercise of any such right, power, or remedy all obligations of Property Owner to City have been satisfied.
12.Recording and Filing.
The Property Owner shall cause this AGREEMENT, and all amendments and supplements hereto and thereto, to be recorded and filed in the real property records of the County of San Diego and in such other places as the City may reasonably request. The Property Owner shall pay all fees and charges incurred in connection with any such recording.
13. Governing Law.
This AGREEMENT shall be governed by the laws of the State of California. In the event of any legal action to enforce or interpret this AGREEMENT, the sole and exclusive venue shall be a court of competent jurisdiction located in the County of San Diego, California, and the PARTIES hereto agree to and do hereby submit to the jurisdiction of such court, notwithstanding Code of Civil Procedure Section 394.
14. Amendments.
This AGREEMENT shall be amended only by a written instrument executed by the 45 August 10, 2022 Item 04
11 PARTIES hereto, or their successors in title and duly recorded in the real property records of the County of San Diego.
15. Notices.
(a) Any notice required to be given hereunder shall be made in writing and shall be given by personal delivery, certified or registered mail, postage prepaid, return receipt requested, at the addresses specified below, or at such other addresses as may be specified in writing by the PARTIES hereto:
If to City, to: City of Del Mar City Hall
1050 Camino Del Mar
Del Mar, CA 92014
Attn: City Manager
Telephone: (858) 755-9313
Facsimile: (858) 755-2794
With Copies to: Leslie E. Devaney, City Attorney
Devaney Pate Morris & Cameron LLP
402 W. Broadway, Suite 1300
San Diego, CA 92101
Telephone: (619) 354-5030
Facsimile: (619) 354-5035
If to Developer, to: DM Asset Recovery LP
c/o Kitchell Development Company
Attn. Robert Schramm, President
1707 E. Highland Ave, Suite 100
Phoenix, AZ 85016
With Copies to: DM Asset Recovery LP
c/o Kitchell Development Company
Attn.: Michael Seiber
9330 Scranton Road, Suite 100
San Diego, CA 92121
(b) City shall endeavor to provide a courtesy copy of any notices sent to Property Owner to the following addressee, however, failure to do so shall not affect the validity of any otherwise proper, timely delivered notice to Property Owner:
(INSERT LENDER CONTACT)
Notice shall be deemed given three business days after the date of mailing. 46 August 10, 2022 Item 04
12 16. Severability.
If any provision of this AGREEMENT shall be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining portions hereof shall not in any way be affected or impaired thereby.
17. Additional Terms.
(a) Indemnity. To the fullest extent permitted by law, the Property Owner agrees to indemnify, hold harmless and defend the City and its elected officials, officers, governing members, employees, attorneys and agents (collectively, the “Indemnified Parties” ), from and against any and all losses, damages, claims, actions, liabilities, costs and expenses of any and every conceivable nature, kind or character (including, without limitation, reasonable attorneys' fees, litigation and court costs, amounts paid in settlement and amounts paid to discharge judgments) to which the Indemnified Parties, or any of them, may become subject to under any statutory law (including federal or state securities laws) or at common law or otherwise, arising out of or based upon or in any way relating to:
1. This AGREEMENT or the execution or amendment thereof in connection with the transactions contemplated thereby;
2. Property Owner's ownership or operation of the PROPERTY and the PROJECT or any act or omission of the Property Owner or any of its agents, contractors, servants, employees or licensees in connection with the PROPERTY and the PROJECT, the operation of the PROJECT, or the condition, environmental or otherwise, occupancy, use, possession, conduct or management of work done in or about, or from the planning, design, acquisition, installation, operation or rehabilitation of, the PROJECT or any part thereof;
3. any lien or charge upon payments by the Property Owner to the County, or any taxes (including, without limitation, all ad valorem taxes and sales taxes), assessments, impositions and other charges imposed on the County in respect of any portion of the PROJECT;
4. any violation of any environmental law, rule, or regulation with respect to, or the release of any toxic substance from, the PROPERTY or the PROJECT or any part thereof;
5. any untrue statement or misleading statement or alleged untrue statement or alleged misleading statement of a material fact by the Property Owner contained in the Development Agreement or any of the documents or instruments relating to said Development Agreement that the City relied upon in entering into this Agreement or the Development Agreement; except to the extent such damages are caused by the gross negligence or willful misconduct of such Indemnified Party. In the event that any action or proceeding is brought against any Indemnified Party with respect to which indemnity may be sought hereunder, the Property Owner, upon written notice from the Indemnified Party, shall assume the investigation and defense thereof, including the employment and payment for of 47 August 10, 2022 Item 04
13 counsel selected by the Indemnified Party, and shall assume the payment of all expenses related thereto, with full power to litigate, compromise or settle the same; provided that the Indemnified Party shall have the right to review and approve or disapprove any such compromise or settlement.
(b) Time. Time is of the essence in this AGREEMENT.
(c) Construction. Except where the context otherwise requires, words imparting the singular number shall include the plural number and vice versa, words imparting persons shall include firms, associations, partnerships and corporations, and words of either gender shall include the other gender.
(d) Waiver of Jury Trial. Unless prohibited by Federal, State or local laws, each party to this AGREEMENT hereby expressly waives any right to trial by jury of any claim, demand, action or cause of action arising under any Loan Document or in any way connected with or related or incidental to the dealings of the PARTIES hereto or any of them with respect to this AGREEMENT, or the transactions related thereto, in each case whether now existing or hereafter arising, and whether sounding in contract or tort or otherwise; and each party hereby agrees and consents that any such claim, demand, action or cause of action shall be decided by court trial without a jury, and that any party to this AGREEMENT may file an original counterpart or a copy of this section with any court as written evidence of the consent of the PARTIES hereto to the waiver of their right to trial by jury. (e) Non liability. By accepting or approving anything required to be performed or given to City under this AGREEMENT, City shall not be deemed to have warranted or represented the sufficiency or legal effect of the same, and no such acceptance or approval shall constitute a warranty or representation by City to anyone.
(f) Obligations Unconditional and Independent. Notwithstanding the existence at any time of any obligation or liability of City to Property Owner, or any claim by Property Owner against City, in connection with this AGREEMENT or otherwise, Property Owner hereby waives any right it might otherwise have (a) to offset any such obligation, liability or claim against Property Owner’s obligations under this AGREEMENT or (b) to claim that the existence of any such obligation, liability or claim excuses the nonperformance by Property Owner of any of its obligations under this AGREEMENT.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year first above written.
PROPERTY OWNER:
By:
By:
48 August 10, 2022 Item 04
14 CITY:
By:
By:
49 August 10, 2022 Item 04
EXHIBIT A
Legal Description of the Development Site
LOTS 4, 5, AND 6 IN BLOCK 62 OF DEL MAR, IN THE CITY OF DEL MAR, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 368, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, OCTOBER 7, 1885, TOGETHER WITH THAT PORTION OF THE SOUTHERLY 20.00 FEET OF TENTH STREET AS SHOWN ON SAID MAP, WHICH LIES NORTHERLY OF AND
IMMEDIATELY ADJOINS SAID LOTS, AS VACATED AND CLOSED TO PUBLIC USE BY ORDER OF THE BOARD OF SUPERVISORS OF SAID SAN DIEGO COUNTY, RECORDED APRIL 16, 1926 IN BOOK 1209, PAGE 125
OF DEEDS, TOGETHER WITH THAT PORTION OF THE NORTHERLY HALF OF THE ALLEY AS SHOWN ON
SAID MAP, WHICH LIES SOUTHERLY OF AND IMMEDIATELY ADJOINS SAID LOTS, AS VACATED AND CLOSED TO PUBLIC USE BY ORDER OF SAID BOARD OF SUPERVISORS, RECORDED MAY 17, 1929 IN BOOK 1613, PAGE 470 OF DEEDS.
APN: 300-221-33-00 and 300-221-32-00
50 August 10, 2022 Item 04
EXHIBIT B
Formula to determine the Maximum Restricted Sales Price of a New Affordable Unit at the time of original sale.
The following formula and methodology shall be used to calculate the maximum Restricted Sales Price of Restricted Unit upon the original sale by the Property Owner, consistent with Health and Safety Code Section 50052.5:
A. Determine the annual income for a Qualified Household size based on whether the unit is designated for occupancy by a Lower Income or Very-Low Income Household: as defined in Health and Safety Code Section 50079.5 and Section 50105 (as applicable). The unit designation will be determined by the City consistent with the project planning approvals. i. Determine the monthly Area Median Income for San Diego County for a Household size that is one person for a studio unit and two persons for a one-bedroom unit, three persons for a two-bedroom unit and four persons for a three-bedroom unit; then
ii. Multiply the monthly Median Income for San Diego County derived by the above method:
70% for an affordable unit designated for a Lower Income Household occupancy; or
50% for an affordable unit designated for a Very-Low Income Household occupancy.
B. Determine the monthly household allowance available for a mortgage payment:
i. Multiply annual income from step A by 0.30 to obtain an annual housing allowance of 30% of income;
ii. Divide the housing allowance by 12 to obtain a monthly housing allowance;
iii. Deduct 20% of the monthly housing allowance for the monthly costs of property taxes, insurance, and all utilities (consistent with the US Department of Housing and Urban Development's Utility Allowance principles), and deduct 100% of the monthly homeowner's association (HOA) fees to obtain a net allowance available for mortgage payments. (Note: For the purposes of the amount of HOA fees included in this formula, and for all future transactions, HOA fees shall be set as of the date of initial occupancy at their actual amount. If future HOA fees are less than this set amount, then the lesser amount will be used in the formula and thereafter. If HOA fees include property taxes, hazard insurance costs or individual unit utility costs, these costs shall be deducted from the set HOA fee amount used in the formula.) 51 August 10, 2022 Item 04
Exhibit B
Max. Sales Price Formula
C. Determine the maximum mortgage that can be financed:
i. Determine the prevailing interest rate for a 30-year fully amortized fixedrate home mortgage that is equal to the previous year's average mortgage interest rates from Freddie Mac's "Weekly Primary Mortgage Market Survey." This rate shall be adjusted annually, effective May 1st to coincide with the changes in median income by HUD and HCD;
ii. Determine the maximum home mortgage that can be financed at the prevailing interest rate based on a mortgage payment as determined in step B.
D. Determine a maximum Restricted Unit sales price assuming a mortgage of 90% of sales price by dividing the maximum mortgage amount determined in step C by 0.9.
The Maximum Restricted Sales Price shall be exclusive of closing costs, which shall be paid by the Seller.
52 August 10, 2022 Item 04
Affordable Unit
Affordable Unit
EXHIBIT C
Identification of Affordable Units
53 August 10, 2022 Item 04
EXHIBIT D
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
City of Del Mar
City Clerk’s Office
1050 Camino Del Mar
Del Mar, CA 92014
Recording Fees Exempt Pursuant to
Government Code §27383
ABOVE SPACE FOR RECORDER’S USE
AFFORDABLE HOUSING OCCUPANCY, REFINANCING, AND
RESALE DEED RESTRICTION AGREEMENT WITH OPTION TO
PURCHASE
Assessor’s Parcel Number (APN) of Home:
Address of Home:_____________________
Number of Bedrooms: _________________
Income Category of Purchaser: Low Income
Sales Price at Original Purchase (Owner's Base Price): $______ Owner's Original Closing Costs: $______
Median Income (applicable to household size) at Time of Purchase: $______ THIS AFFORDABLE HOUSING DEED RESTRICTION is made and executed this day of 20 by (the “Owner”), whose address is and
more particularly described in Exhibit A (the "Home"), for the benefit of and enforceable by the City of Del Mar (the “City”).
RECITALS
WHEREAS, the Owner owns Home located within the development project located at 941 Camino Del Mar in Del Mar, California.
WHEREAS, Owner’s residential unit was constructed on the Property to increase affordable housing opportunities in the City; and
54 August 10, 2022 Item 04
2 WHEREAS, pursuant to the Development Agreement and in accordance with the requirements of the Regulatory Agreement and Declaration of Restrictive Covenants associated with approval of development of the Property, eligible purchasers such as the Owner are given the opportunity to purchase residential property at less than its fair market value if the purchaser agrees to certain use and transfer restrictions, including an agreement to occupy the property as a principal residence and convey the property for an amount not greater than a maximum resale price, all more fully provided herein; and
WHEREAS, the purpose of this Agreement is to control the resale of the Home. This Agreement provides the City an option to purchase the Home at a restricted price, given in consideration of the economic benefits to the Owner resulting from purchase of the Home at an affordable level. This Agreement restricts the resale of the Home and specifies, among other requirements, that the Home may only be transferred to Low Income Households (as defined below).
This Agreement also requires that the Owner pay the City Excess Sales Proceeds (as defined below) in the event the Owner sells the Home in violation of this Agreement.
WHEREAS, the Owner is receiving a first mortgage loan (the "First Lender Loan") from _________________________ (the "First Lender"). The First Lender Loan is secured by a deed of trust executed by the Owner in favor of First Lender and recorded in the official records of San Diego County (the "Official Records") concurrently with this Agreement, and assigned Instrument No. _____________ (the "First Lender Deed of Trust"). [If Owner is receiving more than one purchase money loan from the same lender revise as follows: The Owner is receiving [insert number] mortgage loans from ________________ and _______________ (collectively, the "First Lender") for purchase of the Home (collectively, the "First Lender Loan"). The First Lender Loan is secured by a deed trust dated _______________, 20__, executed by the Owner and recorded in the County of San Diego on _______________, 20__, and assigned Instrument No. _____________ and a deed of trust dated _______________, 20__, executed by the Owner and recorded in the County of San Diego on _________________, 20__, and assigned Instrument No. _____________ [revise if more than two deeds of trust] (collectively, the "First Lender Deed of Trust").
WHEREAS, this Agreement shall be secured by a deed of trust on the Home (the "City Deed of Trust"). [Choose one:] [This Agreement will be recorded senior and will not be subordinated to the First Lender Deed of Trust, but the City Deed of Trust shall be subordinate to the lien of the First Lender Deed of Trust.] [Because the First Lender Loan is financed with a HUD or VA loan, the Agreement and the City Deed of Trust will be subordinate to such HUD or VA financing.] WHEREAS, the Owner, on behalf of itself, its heirs, executors, administrators, representatives, successors, and assigns, desires to comply with the requirements of the Development Agreement by restricting the use and transfer of the Property as provided herein.
NOW, THEREFORE, in consideration of the recitals set forth above and for value received, the Owner does hereby declare and impose the following covenants on the Property.
COVENANTS
1. Covenants to Run with Property. The Property is hereby burdened with the covenants delineated herein, which covenants must be a burden upon, and run with, the Property for the benefit of the City who may enforce the covenants and compel compliance therewith. Lack of 55 August 10, 2022 Item 04
3 compelled compliance at any time, for any duration, or for any reason does not remove the right of City from enforcing the covenants and compelling compliance.
2. General Definitions.
“Guidelines” means policies, procedures, regulations, and ordinances adopted by the City, as same may be amended from time to time, to govern the administration of deed restricted affordable housing.
“Owner” means that person or persons listed in the opening paragraph of this Agreement, who have been certified as a Qualified Household.
“Qualified Household” means a household that has been certified by the City as qualified Low-Income Household that is eligible to own or occupy the Property. A Qualified Household must maintain continuous compliance with the Guidelines and the terms and provisions of this Deed Restriction during its entire term of occupancy of the Property. The combined gross income for all household members of a "Qualified Household", as determined by the City, does not exceed the qualifying limit for Low Income households as established and amended from time to time pursuant to Section 8 of the United States Housing Act of 1937 ("Low Income Household").
3. Restrictions on Occupancy.
3.1 Residential Use Only. The Owner must use, and must cause all occupants to use, the Property only for residential purposes, as affordable housing, as the Owner's sole place of residence and any incidental activities related to residential use that are permitted by the applicable zoning.
3.2 Compliance with Law. The Owner must use the Property in a manner to not cause actual harm to others or create any nuisances, public or private. The Owner must use and maintain the Property in compliance with all applicable laws and regulations, including homeowner association covenants and requirements.
3.3 Occupancy. Subject to the restrictions contained in Section 8 below, the Owner must occupy the Property as the Owner’s primary residence. The Owner will be considered as occupying the Property as his/her/their primary residence if the Owner is living in the Property for at least ten (10) months out of each calendar year. On or before February 1 of each calendar year, the Owner shall provide an annual written certification to the City, in the form to be provided by the City (Exhibit E). The City may, in its sole discretion, grant a temporary waiver of this occupancy requirement for good cause such as to facilitate sale of the Property to a Qualified Household, illness, temporary job relocation, military deployment orsabbatical. The Owner must provide written request for a temporary waiver of the owner occupancy requirement to the City at least thirty (30) days prior to such temporary vacancy. The Owner’s failure to comply with the provisions of this paragraph may, following a three (3) month notice to cure, be deemed a breach of this Deed Restriction, allowing the City to purchase the Property as set forth in section 7. Occupancy of the Property as the Owner's primary residence will not be established if the Owner offers or lets the Property as a Short-Term Rental at any time during the Term in violation of Section 8, below.
3.4 Maintenance and Inspection of Property. The Owner must maintain the Property and 56 August 10, 2022 Item 04
4 any improvements thereon in good condition and repair throughout the Owner’s period of ownership.
If the City receives a report of poor maintenance or unsafe condition, the Owner must allow the City, or its designee, access to the Property upon 48 hours’ notice. The City, or its designee, will inspect the property and notify Owner if repairs or corrections are required. The Owner must make any required repairs or corrections in a reasonable manner acceptable to City within thirty (30) days of being notified. In addition, upon the City’s receipt of a Notice of Intent to Transfer, as detailed in section 6, the City must be given the right to enter and inspect the Property. The Owner is obligated to make repairs to the Property deemed necessary by the City prior to appraisal and sale. If Owner is unable to make the required repairs, the City may enter into an agreement with the Owner to make necessary repairs.
4. Taxes and Assessments.
4.1 Owner Responsibility. The Owner must be responsible for the payment of all taxes, governmental assessments, and homeowners’ dues/assessments relating to the Property.
4.2 Right to Contest. The Owner has, at the Owner’s own expense, the right to contest the amount or validity of any taxes or assessments relating to the Property.
5. Term of Covenants and Restrictions. All the provisions of this Agreement, including the benefits and burdens, run with the Home and this Agreement shall bind, and the benefit hereof shall inure to, the Owner, his or her heirs, legal representatives, executors, successors in interest and assigns, and to the City and its successors. The covenants and restrictions contained herein must continue in full force and effect for a period of fifty-five (55) years after the date of recordation of this Deed Restriction. With each sale or transfer, the Owner must ensure that the purchaser or transferee executes an occupancy, refinancing, and resale restriction agreement with option to purchase (“Deed Restriction”) in accordance with Section 6.2 of this Agreement and record the same with the San Diego County Recorder.
The Owner covenants that he or she has not, and will not, execute any other agreement with provisions contradictory to or in opposition to the provisions hereof, and that, in any event, this Agreement is controlling as to the rights and obligations between and among the Owner, the City and their respective successors.
6. Sale of the Property.
6.1 Requirements. In the event the Owner intends to Transfer or vacate the Home, the Owner shall promptly give the City written notice of such intent (the "Notice of Intent to Transfer"), in the form shown in Exhibit C attached to this Agreement. The Owner shall give the City the Owner's Notice of Intent to Transfer prior to notifying real estate brokers or lenders of Owner's intent to Transfer the Home and prior to listing of the Home on the Multiple Listing Service.
i. The Owner's Notice of Intent to Transfer shall be sent to the City by certified mail, return receipt requested at the address provided in this Agreement. The Owner's Notice of Intent to Transfer shall include the information necessary for the City to determine the Maximum 57 August 10, 2022 Item 04
5 Restricted Resale Price of the Home, including the following information:
(1) the address of the Home;
(2) the date of purchase of the Home by the Owner;
(3) the purchase price of the Home paid by the Owner at the time of his/her purchase;
(4) a copy of the HUD-1 Settlement Statement or equivalent document from the close of escrow on the Owner's purchase of the Home;
(5) if Owner has made Eligible Capital Improvements to the Home that he/she wishes to include in the calculation of Indexed Price, a description of the improvements, the date the improvements were made, a copy of the letter granting prior City approval of the improvements, evidence of cost of the improvements, and an appraisal of the value added to the Home by the Eligible Capital Improvements;
(6) the date on which Owner intends to vacate Home;
(7) the date the Home will be placed on the market; and (8) the name and phone number of the person to contact to schedule inspection of the Home by the City.
The Owner may not want to enter into a contract with a real estate broker to sell the Home until the Owner has received the City Response Notice, as the services of a broker will not be required if the City exercises the City Option to purchase the Home and in such event no brokerage commission will be paid to a third party.
ii. Within thirty (30) days of delivery of the Owner's Notice of Intent to Transfer, the Owner shall obtain and deliver to the City a current written report of inspection of the Home by a licensed structural pest control operator.
iii. No later than thirty (30) days after delivering a Notice of Intent to Transfer, the City or designee will inspect the property and notify the Owner of required repairs. The Owner must make required repairs within thirty (30) days. If Owner is unable to make the required repairs, the City may cause the repairs to be made and charge one and one-half (1.5) times the repair costs to the Owner payable out of purchase proceeds at closing. Once repairs are made, Owner must, at their own expense, commission an appraisal of the Property by a licensed appraiser. The appraisal must be by analysis and comparison of comparable properties, disregarding this Deed Restriction. The Owner must provide a copy of such appraisal to the City. iv. If the Home is vacant, the Owner shall maintain utility connections until the close of escrow on the Transfer;
v. In the event the City purchases the Home, the Owner shall permit a final walkthrough of the Home by the City, or the City's designee, in the final three (3) days prior to close of escrow on the Transfer.
The City shall respond in writing (the "City Response Notice") to the Owner's Notice of Intent to Transfer within sixty (60) days of: City receipt of a complete Owner's Notice of Intent to Transfer that includes all information required under this Section, including City receipt of the pest control report and home inspection report (if any). The City Response Notice shall inform the 58 August 10, 2022 Item 04
6 Owner of the City's election to proceed under one of the following two alternatives:
i. City Exercise of City Purchase Option. The City Response Notice may notify the Owner that the City elects to exercise the City Option, or assign to another public agency or nonprofit organization or Qualified Household the City's right to purchase the Home, and shall include the City's calculation of the Maximum Restricted Resale Price to be paid by the City (or its assignee) and the Transaction Fee to be paid by the Owner.
ii. Owner Sale at Restricted Sale Price to Qualified Household. Alternatively, the City Response Notice may notify the Owner that the City will not at this time exercise the City Option to purchase the Home and that the Owner may proceed to sell the Home to a Qualified Household at a price not to exceed the Maximum Restricted Resale Price. In this event, the City Response Notice shall include the following information: (1) the maximum qualifying income for a Qualified Household; (2) the certifications required of a Qualified Household; (3) the Maximum Restricted Resale Price the Owner may receive for the Home. iii. To proceed to the closing of the sale of the Property, the City must certify in writing that the prospective buyer is a Qualified Household. The City or its designee will maintain a list of Qualified Households and shall provide Owner with the then current list when sending the City Response Notice.
No later than seven (7) days following the date of the City Response Notice, the Owner shall acknowledge in writing to the City, that the Owner has received the City Response Notice and still intends to Transfer the Home.
6.2 Selling the Property.
The Owner agrees that the City shall have the option to purchase the Home (the "City Option") for the Maximum Restricted Resale Price, calculated pursuant to Section 6.3 of this Agreement. The City may, instead of purchasing the Home itself, assign its right to purchase the Home pursuant to the City Option to another public agency, a nonprofit corporation, or to a Qualified Household. If the City assigns its purchase option, the assignee shall sign the City Response Notice and shall thereby be bound to purchase the Home pursuant to the terms of the City Option as set forth in this Agreement. The Owner may be required to pay the City a transaction fee equal to the City's reasonable costs associated with the exercise of the Option if the City (or its assignee) exercises the City Option and purchases the Home; provided, however that such transaction fee shall not exceed six percent (6%) of the sales price of the Home. The City Option may be exercised by the City or its assignee in the City Response Notice, as described in Section 6.1 above, to be sent by the City to the Owner within thirty (30) days of the City's receipt of a complete Owner's Notice of Intent to Transfer. If the City Response Notice notifies the Owner that the City or its assignee will exercise the City Option to purchase, the City or its assignee shall purchase the Home within ninety (90) days of the date of the City Response Notice and title shall be delivered by the Owner to the City by grant deed, free and clear of any mortgage or other liens, unless approved in writing by the City. In the event of exercise of the City Option and purchase of the Home by the City or its assignee, the Owner shall permit a final walk-through of the Home by the City or its assignee in the final three (3) days prior to close of escrow on the Transfer.
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7 In the event the City Response Notice notifies the Owner to proceed to sell the Home to a Qualified Household at a price not exceeding the Maximum Restricted Resale Price, the Owner may proceed to sell the Home in compliance with the following requirements. The Owner may sell the Property by selling the Property directly to a Qualified Household on the City’s approved list or that of its designee. If the City does not maintain such a list, the Owner may sell to a Qualified Household of Owner’s choosing, so long as the person is certified by the City as a Qualified Household. The Proposed Buyer shall agree to sign and record an occupancy, refinancing, and resale restriction agreement with option to purchase restricting future resale of the Home and shall agree to cooperate fully with the City in promptly providing all information requested by the City to assist the City in monitoring the Proposed Buyer's compliance with the occupancy, refinancing, and resale restriction agreement with option to purchase.
6.3 Maximum Restricted Resale Price. In no event shall the Property be sold for an amount exceeding the “Maximum Restricted Resale Price,” calculated as follows:
A. The original purchase price of the Property, which reflects the affordable housing cost for the Home at the time of purchase by Owner plus an increase in the San Diego Area Median Income from the date of the of the original purchase price per year from the date of purchase to the date that the Owner’s Notice of Intent to Transfer is delivered to the City (prorated for each whole month of any part of a year and not compounded).
B. PLUS, any other costs allowed by the City pursuant to Guidelines and any applicable City policies and procedures.
6.4 No Guarantee of Price. Nothing herein shall be intended to be construed to constitute a representation or guarantee by the City that the Owner will obtain the Maximum Resale Price upon sale of the Property.
6.5 No Assumption of Owner’s Costs. The Owner must not permit any prospective buyer to assume any or all of Owner’s customary closing costs (including title policy and half of any escrow expenses) or accept any other consideration which would cause an increase in the purchase price above the Maximum Resale Price. The Owner must pay all costs of advertising and marketing the Property for sale, including real estate commissions. The Owner must not accept any other consideration which would cause an increase in the net proceeds paid to the Owner from the sale.
7. Prohibited Sale/Transfer.
7.1 Effect. Any Transfer of the Home will be subject to the provisions of this Agreement including, without limitation, the City Option. Any prohibited sale/transfer of the Property in violation of this Deed Restriction or an attempt to make a prohibited sale/transfer must be void, must be a material breach subject to the remedies reflected in section 9, below. Transfer means any sale, assignment or transfer, voluntary or involuntary, of any interest in the Home, including, but not limited to, a fee simple interest, a joint tenancy interest, a life estate, a leasehold interest, an interest evidenced by a land contract by which possession of the Home is transferred and Owner retains title, or a deed of trust. Any Transfer without satisfaction of the provisions of this Agreement is prohibited and shall constitute a Default under this Agreement and the City may then exercise any of the 60 August 10, 2022 Item 04
8 remedies set forth herein. If the Owner makes a Transfer in violation of this Agreement, the Owner shall pay the Excess Sales Proceeds to the City as set forth in this section. For purposes of this Agreement, "Excess Sales Proceeds" shall mean one hundred ten percent (110%) of the amount by which the gross sales proceeds received by the Owner from the new buyer exceed the Maximum Restricted Resale Price for the Home (in the amount that was stated in the City Response Notice).
This amount shall be a debt of the Owner to the City, evidenced by this Agreement and secured by the City Deed of Trust. The Owner acknowledges that the City shall have no obligation to cause reconveyance of this Agreement or of the City Deed of Trust until the Excess Sales Proceeds are paid to the City. The City shall utilize the Excess Sales Proceeds for City affordable housing programs and to pay for administrative fees resulting from the Transfer in violation of this Agreement. The Owner and the City acknowledge that the formula for calculation of the amount of Excess Sales Proceeds due from the Owner to the City is intended to cause the Owner to receive the same net sales proceeds (following payment by Owner of a standard broker's commission) from sale of the Home at an unrestricted price to a third party as the Owner would receive from sale of the Home to the City or to a Qualified Household at the Maximum Restricted Resale Price.
7.2 Sales/Transfers Not Prohibited. The following are not considered prohibited sales/transfers and therefore are not subject to the City’s option to purchase the Property: (i) Transfer of title by gift, devise, or inheritance to the Owner’s spouse or domestic partner, or natural or adopted children; (ii) Transfer of title due to the Owner’s death to a surviving joint tenant, tenant by entireties, or a surviving spouse of community property; (iii) transfer to a spouse as part of divorce or dissolution proceedings; (iv) transfer of title by the Owner into an inter-vivos trust in which the Owner is the beneficiary; or (v) transfer of title or an interest in the Property to the spouse in conjunction with marriage. However, for these not to be deemed prohibited sales/transfers all of the following three conditions must be met: (i) at the time of the sale/transfer, the Property was the transferee’s primary place of residence, as set forth in section 3.3, and will continue to be the transferee’s primary place of residence, or transferee meets the definition of a Qualified Household and will make the Property his/her primary place of residence; (ii) this Deed Restriction must continue to run with title of the Property following said sale/transfer; and (iii) transferee must execute and record this Deed Restriction. A transferee who satisfies the above three conditions shall then be considered the Owner. All other Transfers shall require written notice to the City pursuant to Section 6 and shall be to Qualified Households. Consideration received by the Owner for such Transfer shall not exceed the Maximum Restricted Resale Price defined in Section 6.3, above. Failure of an Inheriting Owner to follow the procedures and file the notices described in this Section shall constitute a Default under this Agreement and the City may then exercise any of the remedies set forth herein, including, without limitation, exercise of the City Purchase Option upon Default.
8. Rental of the Property.
8.1. When Permitted. The Owner is prohibited from renting the Property at any time during the Term unless the City grants a written temporary waiver of the owner occupancy requirements set forth in section 3.3 and the City grants written approval in accordance with the following procedures:
i. The Owner must deliver written notice to the City of its intent to rent the Property no less than fifteen (15) business days prior to the execution of any lease or any other occupancy agreement for the Property.
61 August 10, 2022 Item 04
9 ii. Prior to occupancy, any tenant must be certified in writing as a Qualified Household by the City in accordance with the Guidelines. iii. A signed copy of the lease must be provided to the City prior to occupancy by any tenant. Such lease must include all provisions specified in the Guidelines, if any. iv. The maximum rental rate must be determined when the notice of intent to rent is submitted and approved by the City. The monthly rent must not exceed Owner’s monthly obligations, consisting of principal, interest, taxes, insurance, and homeowners’ dues/assessments and must result in the Property being rented at an affordable housing cost as defined in Health and Safety Code Section 50053.
v. Failure of the City to approve or otherwise respond to a request to authorize rental of a Restricted Unit shall not constitute an approval of said request.
Notwithstanding anything to the contrary or any changes to the Municipal Code, in no event shall the Owner be permitted to offer or let the Property, or any portion thereof, as a short-term rental, even if the Property is within a Residential-Commercial zone, visitor commercial, or commercial zones. The purpose of this prohibition is strictly to ensure the continued use of the Property as affordable housing.
8.2 Owner’s Liability. Nothing herein shall be construed to require the City to: (i) protect or indemnify the Owner against any losses attributable to the rental, including, but not limited to, non-payment of rent or damage to the Property; (ii) require the City to obtain a qualified tenant for the Owner in the event none is found by the Owner; or (3) require the City to enforce any of the terms of or perform any of the obligations of any lease entered into by the Owner.
9. Breach.
9.1 Defaults. The following events shall constitute a Default by the Owner under this Agreement:
(1) The City determines that the Owner has made a misrepresentation to obtain the benefits of purchase of the Home or in connection with its obligations under this Agreement; (2) The Owner fails to occupy the Home as the Owner's primary residence; (3) The Owner leases the Home to any third party without prior written City approval;
(4) The Owner makes a Transfer in violation of this Agreement; (5) The Owner otherwise fails to comply with the requirements of this Agreement, or the City Deed of Trust;
(6) A notice of default is issued under the First Lender Loan; or (7) A lien is recorded against the Home other than the lien of a bona fide first mortgage loan or a junior loan approved by the City.
Notice and Cure. Upon violation of any of the provisions of this Deed Restriction, City must give written notice to the Owner by certified mail, return receipt requested, specifying the nature of the violation. If the violation is not corrected to the satisfaction of the City within a reasonable period, 62 August 10, 2022 Item 04
10 not to exceed thirty (30) days after the date the notice is mailed, or within further time as is determined by the City to be necessary to correct the violation, the City may declare a default. The City shall notify the First Lender at the address provided by the First Lender, if the City has declared a default under this Agreement or under the City Note or the City Deed of Trust
9.2 Remedies Upon Default. Upon the declaration of a default, the City may invoke any remedies available to them under this Deed Restriction including, but not limited to, seeking a court order for specific performance of the obligations of this Deed Restriction, for an injunction prohibiting a proposed sale/transfer in violation of this Deed Restriction, for a declaration that a sale/transfer in violation of this Deed Restriction is void, or for any other such relief at law or equity as may be appropriate.
9.3 Attorney fees and costs. In the event of a default by the Owner, the Owner and/or the Owner’s transferee must hold the City, its officials, employees, and agents harmless and reimburse the expenses, attorney fees, and costs for any action the City takes to enforce the provisions of this Deed Restriction.
9.4 City’s Option to Purchase. In addition to these remedies, the City has the option to purchase the Property for the Maximum Resale Price, effective upon the declaration of default. City must within thirty (30) days after a default is declared to notify the Owner of its decision to exercise its option to purchase the Property.
10. Foreclosure.
10.1 Exclusivity. This paragraph applies in the event of foreclosure of the Property. In the event of foreclosure, paragraphs 6, 8 and 9 do not apply.
10.2 Notice. The Owner must deliver to the City a foreclosure notice or any similar document he/she/they receive from a mortgagee within five (5) days of receipt.
10.3 City’s Option to Purchase. The Owner grants to the City the right and option to purchase the Property upon receipt of notice of an impending foreclosure or deed in lieu of foreclosure. In the event City intends to exercise its right, City must purchase the Property within sixty (60) days of receipt of notice, at a price equal the mortgage satisfaction amount (as herein defined). “Mortgage satisfaction amount” means the sum of the outstanding principal balance of the note secured by the mortgage, plus accrued interest and all reasonable costs and expenses which the mortgagee is entitled to pursuant to the mortgage.
10.4 Effect Upon Deed Restrictions. If City does not exercise its option to purchase the Property, the rights and restrictions contained in this document will not apply to such mortgagee upon acquisition the Property, any purchaser of the Property at a foreclosure sale conducted by such mortgagee, or any purchaser of the Property from such mortgagee and the Property must thereafter be free from all such rights and restrictions.
11. Financing. The owner may not incur any debt or promissory note secured by a deed of trust or other security instrument that encumbers the Property in excess of the original 63 August 10, 2022 Item 04
11 purchase price.
At no time shall the total principal amount of all debt secured by the Home exceed the "Permitted Encumbrance Amount", which is defined as the greater of: (i) ninety percent (90%) of the Maximum Restricted Resale Price as of the date of the Owner's request to the City of approval of the Owner's refinance (the "Refinance Request Notice"); or (ii) the outstanding balance of the existing First Lender Loan as of the date of the Refinance Request Notice. Mortgage loans which include negative amortization and adjustable-rate mortgages are prohibited. If escrow does not close on the refinance within one hundred twenty (120) days of the date of the Refinance Request Notice, the City shall have the right to recalculate the Permitted Encumbrance Amount. Owner shall not be in Default hereunder at the time of initial purchase of the Home by the Owner, if, at that time, the initial debt secured by the Home exceeds the Permitted Encumbrance Amount and Owner does not further encumber the Home until the Permitted Encumbrance Amount complies with this Section.
The City shall permit and approve a prepayment and refinance of the existing First Lender Loan and shall provide for the subordination of this Agreement, the City Deed of Trust to the refinanced First Lender Loan only if such refinance does not cause the total debt secured by the Home, including junior mortgage loans and equity lines of credit, to exceed the Permitted Encumbrance Amount. The City will not approve any mortgage loan which includes negative amortization, nor will the City approve any adjustable-rate mortgages.
Mortgage loans or equity lines of credit junior in lien priority to this Agreement, the City Deed of Trust are not permitted, except when expressly approved by the City in writing. The City shall only approve junior mortgage loans or equity lines of credit which will not cause the total of all debt secured by the Home (calculated assuming a maximum permitted draw on any equity line of credit) to exceed the Permitted Encumbrance Amount. The City will not approve any mortgage loan or equity line of credit which includes negative amortization, nor will the City approve any adjustablerate mortgages.
12. Liability, Insurance, Damage, Destruction, and Improvements.
12.1 Owner’s Liability. The Owner has sole responsibility and liability to all persons and authorities related to the Owner’s possession, occupancy, and use of the Property and must hold the City harmless from all claims of liability for injury or damage to person or property from any cause, on or about the Property. The Owner waives all claims against the City for such injury or damage.
12.2 Insurance. The Owner must, at the Owner’s expense, procure and maintain a standard all risk property insurance policy equal to the current replacement value of the Home adjusted annually to reflect changes to local building costs calculated on a per square foot basis (or by appraisal, if requested by the City), naming the City, the City and their employees, agents, officers, board members and/or council members as additional insureds. The policy shall be adjusted annually to reflect changes to local building costs calculated on a per square foot basis (or by appraisal, if requested by the City). The City has the right, but not the obligation, to inform Owner of the then-current replacement value of the Home.
12.3 Damage to the Property. In the event of fire or other damage to the Property, the Owner must take all necessary steps to ensure the repair of such damage and the restoration of the 64 August 10, 2022 Item 04
12 Property to its condition immediately prior to the damage. All such repairs and restoration must be completed as promptly as possible. Provided, however: If the Owner, using reasonable judgment and relying on professional estimates, determines that either: (i) full repair and restoration of the Property and improvements is physically impossible; or (ii) insurance proceeds will pay for less than eighty percent (80%) of the cost of repair and restoration, then the Owner may elect not to repair or restore the Property. In this case, the mortgagee is to receive all condemnation or insurance proceeds, however, all proceeds in excess of the mortgage satisfaction amount must be paid to the City.
12.4 Eminent Domain. If the Property is taken by reason of eminent domain or other action of public authority prior to expiration of this deed restriction and:
i. The Property is either taken in entirety or to such extent that the Property is lost or damaged beyond repair, this Deed Restriction must terminate as of the date the Owner is required to give up possession of the Property.
ii. The taking of the Property results in damage to the Property only to such an extent that the Property can reasonably be restored to a residential use consistent with this Deed Restriction, the Owner must utilize such of the monetary compensation as is needed to repair or restoration of the Property.
iii. All proceedings brought by a party in connection with any damages as a result of any taking referred to in this section 12.4 must be conducted at the sole expense of such party. If any provision of law requires that such proceedings be brought by or in the name of the Owner, the Owner must join in the proceedings or permit the same to be brought in the Owner’s name. Each party agrees to do all acts and execute all documents that may be required to enable the other to maintain such proceedings. If the party required to join in the proceedings incurs any cost or expense in doing so, such party must be entitled to reasonable reimbursement and this entitlement must constitute a first charge against any monetary compensation for the taking.
12.5 Improvements. The Owner may make improvements to the Property and recapture some of the value of said improvements if the Owner and City enter into a written agreement regarding the cost of the improvements, the scope of work, the depreciation of the improvements, if any, and recapture of value of the improvements. General property maintenance and repairs are not considered to add value and the Owner is obligated to make such when necessary.
12.6 Indemnity. Owner agrees to defend, indemnify, and hold the City, and their agents, employees, officers and board members harmless from all losses, damages, liabilities, claims, actions, judgments, costs, and reasonable attorneys’ fees that the City, or such persons may incur as a direct or indirect consequence of: (1) Owner's default, performance, or failure to perform any obligations as and when required by this Agreement or the City Deed of Trust; or (2) the failure at any time of any of Owner's representations to the City to be true and correct.
13. General Provisions.
13.1 Notice. Any notice required or permitted under this Deed Restriction must be given in writing and delivered in person or mailed, by certified or registered mail, return receipt requested, 65 August 10, 2022 Item 04
13 at the address set forth below, or such other address designated by the written notice. All notices must be effective upon being deposited in the United States Mail or, in the case of personal delivery, upon actual receipt.
If to City: City of Del Mar
Attn:
1050 Camino Del Mar
Del Mar, CA 92014
If to Owner: At the address set forth in the opening paragraph.
13.2 Severability. Whenever possible, each provision of this Deed Restriction and any other related document must be interpreted in such manner as to be valid under applicable law.
However, if any provision must be invalid or prohibited under said applicable law, such provisions must be ineffective only to the extent of such invalidity or prohibition without invalidating the remaining provisions of such document.
13.3 Choice of Law and Venue. This Deed Restriction must be interpreted in accordance with and governed by the laws of the State of California. Venue for any legal action arising from this Deed Restriction must be in San Diego County, California.
13.4 Waiver. Waiver by the City of any term or condition of this Deed Restriction, or the failure of the City to act with respect to any breach of any such term or condition, must not be deemed to be a waiver of such term or condition regarding any subsequent breach of such term or condition, or of any other term or condition of the Deed Restriction. The City may grant waivers in the terms of this Deed Restriction, but such waivers must be in writing and signed by the City before becoming effective.
13.5 Successors. The provisions and covenants contained herein must inure to the benefit of, and be binding upon, successors and assigns of the parties.
13.6 Authority. Each of the parties warrants that it has complete and full authority, without limitation, to commit itself to all terms and conditions of this Deed Restriction, including every representation, certification and warranty contained herein.
13.7 Further Actions. The parties agree to execute such further documents and take such further actions as may be deemed reasonably necessary to carry out the provisions and intent of this Deed Restriction or any agreement or document relating hereto or entered in connection herewith.
13.8 Amendment. This Deed Restriction may not be amended unless in writing, signed by all parties, and recorded with the San Diego County Recorder.
13.9 Conflicts. To the extent any Covenants, Conditions and Restrictions, bylaws, or any other limitations or restrictions placed upon the Property by a builder, developer, or homeowner’s association conflicts with any provisions of this Deed Restriction or the Guidelines, the applicable 66 August 10, 2022 Item 04
14 provision of this Deed Restriction or the applicable Guideline shall prevail.
13.10 FHA Loans. If the Property is encumbered by a mortgage insured by the Federal Housing Authority, the provisions of 24 C.F.R. 203.41 prevail to the extent such provisions conflict with any provisions of this Deed Restriction. Notwithstanding any other provision in this Agreement to the contrary, this Agreement shall not diminish or affect the rights of the United States Department of Housing and Urban Development ("HUD") or the Veterans Administration ("VA") under the First Lender Deed of Trust.
Notwithstanding any other provisions in this Agreement to the contrary, all of the provisions of this Agreement shall terminate and have no further force in the event title is acquired by HUD or VA or another party upon foreclosure of a deed of trust insured by HUD or guaranteed by VA.
Notwithstanding other provisions of this Agreement, the City Option on Default shall not be exercised by the City when a deed of trust insured by HUD is secured by the Home, and: (i) the owner is undergoing consideration by HUD for assignment forbearance relief; or (ii) the owner is undergoing consideration for relief under HUD's Temporary Mortgage Assistance Payment (TMAP) program.
13.11 Subordination. Notwithstanding any other provision hereof, the provisions of this Agreement shall be subordinate to the lien of the First Lender Loan and shall not impair the rights of the First Lender, or the First Lender's successor or assign, to exercise its remedies under the First Lender Deed of Trust in the event of default under this First Lender Deed of Trust by the Owner.
Such remedies under the First Lender Deed of Trust include the right of foreclosure or acceptance of a deed or assignment in lieu of foreclosure. After such foreclosure or acceptance of a deed in lieu of foreclosure, this Agreement shall be forever terminated and shall have no further effect as to the Home or any transferee thereafter; provided, however, if the holder of such First Lender Deed of Trust acquired title to the Home pursuant to a deed or assignment in lieu of foreclosure and no notice of default was recorded against the Home by such holder in connection therewith, this Agreement and shall automatically terminate upon such acquisition of title, only if (i) the City has been given written notice of default under such First Lender Deed of Trust with a sixty (60)-day cure period (which requirement shall be satisfied by recordation of a notice of default under California Civil Code Section 2924), and (ii) the City shall not have cured the default within such sixty (60)-day period. Owner agrees to record any necessary documents to effect such termination, if applicable.
13.11 Nondiscrimination. The Owner covenants by and for itself and its successors and assigns that there shall be no discrimination against or segregation of a person or of a group of persons on account of race, color, religion, creed, age, disability, sex, sexual orientation, marital status, ancestry or national origin in the sale, transfer, use, occupancy, tenure or enjoyment of the Home, nor shall the Owner or any person claiming under or through the Owner establish or permit any such practice or practices of discrimination or segregation with reference to the use, occupancy, or transfer of the Home. The foregoing covenant shall run with the land. 67 August 10, 2022 Item 04
15 IN WITNESS WHEROF, the parties have executed this Deed Restriction at Del Mar, California on the day and year first written above.
OWNER: CITY OF DEL MAR:
Owner City of Del Mar
68 August 10, 2022 Item 04
EXHIBIT A
The “Home”
LEGAL DECRIPTION:
(To be filled-in once the home exists)
69 August 10, 2022 Item 04
EXHIBIT B
2131\01\3228451.1
City of Del Mar Affordable Housing
Owner Occupied Annual Certification
Please complete this form and return to:
City of Del Mar, Planning & Community Development
1050 Camino Del Mar
Del Mar, CA 92014
Owner
Name(s): _______________________________________________ Phone: ____________________ Address: ________________________________________________ Unit: ______________________ City: ______________________________ State: ___________ Zip Code: _______________________ E-Mail: _____________________________________
I hereby certify under the penalty of perjury:
Y____ N ____. That the affordable unit listed above is my primary residence.
Y____ N ____. I have occupied the affordable unit as my primary place of residence since ______.
Y____ N ____. I have not leased the affordable unit in violation of the Resale Restriction Agreement.
Y N I have not offered or let the affordable unit be used as a Short Term Rental (STR) Please provide source documentation of your residency
(Utility Bill, HOA or Mortgage Statement, Insurance, or other verifiable documentation)
CERTIFICATION
OWNER CERTIFICATION
I/We have read the information submitted above and certify that the information is accurate and complete to my/our knowledge. I/We acknowledge and understand that a material misstatement fraudulently made in this affidavit or in any other statement made by me/us in connection with the affordability restriction recorded against this property will constitute a federal violation punishable by fine and abatement of use of subject property, which will be in addition to any criminal penalty imposed by law.
70 August 10, 2022 Item 04
EXHIBIT B
2131\01\3228451.1
This Owner Occupied Annual Certification is signed on date written below, under the penalty of perjury.
Owner(s)
___________________________ ______________________________ __________ Name (Print) Signature Date
___________________________ ______________________________ __________ Name (Print) Signature Date
71 August 10, 2022 Item 04
EXHIBIT C
FORM OF OWNER’S NOTICE OF INTENT TO TRANSFER
TO: City of Del Mar
FROM: [State names of Owners]
Address of Home: ___________________________
Date:
Please be notified pursuant to Section 6 of the Affordable Housing Occupancy, Refinancing, and Resale Deed Restriction Agreement between Owner and City dated(the “Agreement”), that the Owner intends to transfer the Home listed above.
The following information is provided to the City pursuant to Section 6 of the Agreement:
1. Address of the Home: _____________________________________________
2. Date Owner purchased the Home:
3. Purchase Price paid by Owner for the Home:
(Include a copy of the HUD-1 Settlement Statement or equivalent document from the close of escrow on the Owners purchase of the home)
4. Date Owner intends to vacate the Home:
5. Date the Home will be placed on the market:
6. Name and telephone number for City to contact to schedule inspection:
7. Have Capital Improvements been made to the Residence? ___ yes / ___ no If yes, please attach copies of the City’s written approval of the Capital Improvements, and all required permits for the Capital Improvements.
I agree to cooperate with the City to schedule an inspection of the Residence by the City or its designee.
I/we certify that this Owner’s Notice of Intent to Transfer is true and correct and is signed on:
By: ___________
Owner [type name]
By: ___________
Owner [type name]
72 August 10, 2022 Item 04
EXHIBIT E
City of Del Mar Affordable Housing
Owner Occupied Annual Certification
Please complete this form and return to:
City of Del Mar, Planning & Community Development
1050 Camino Del Mar
Del Mar, CA 92014
Owner
Name(s): _______________________________________________ Phone: ____________________ Address: ________________________________________________ Unit: ______________________ City: ______________________________ State: ___________ Zip Code: _______________________ E-Mail: _____________________________________
I hereby certify under the penalty of perjury:
Y____ N ____. That the affordable unit listed above is my primary residence.
Y____ N ____. I have occupied the affordable unit as my primary place of residence since ______.
Y____ N ____. I have not leased the affordable unit in violation of the Resale Restriction Agreement.
Y N I have not offered or let the affordable unit be used as a Short Term Rental (STR) Please provide source documentation of your residency
(Utility Bill, HOA or Mortgage Statement, Insurance, or other verifiable documentation)
CERTIFICATION
OWNER CERTIFICATION
I/We have read the information submitted above and certify that the information is accurate and complete to my/our knowledge. I/We acknowledge and understand that a material misstatement fraudulently made in this affidavit or in any other statement made by me/us in connection with the affordability restriction recorded against this property will constitute a federal violation punishable by fine and abatement of use of subject property, which will be in addition to any criminal penalty imposed by law.
73 August 10, 2022 Item 04
This Owner Occupied Annual Certification is signed on date written below, under the penalty of perjury.
Owner(s)
___________________________ ______________________________ __________ Name (Print) Signature Date
___________________________ ______________________________ __________ Name (Print) Signature Date
74 August 10, 2022 Item 04
City of Del Mar
Agenda Report
________________________________________________________________________________________________________ City Council Action:
TO: Honorable Mayor and City Council Members
FROM: Joe Bride, Public Works Director
Tom Romaine, Public Works Operations Manager
Kseniia Izgarskaia, Associate Management Analyst
Via Ashley Jones, City Manager
DATE: August 10, 2022
SUBJECT: Second Amendment to the Agreement with MSC Janitorial Services, Inc. for Janitorial Services
REQUESTED ACTION/RECOMMENDATION:
Staff recommends that the City Council: 1) Approve the Second Amendment (Attachment A) to the janitorial services agreement with MSC Janitorial Services Inc., amending the scope of services, fee schedule, and agreement term; and 2) Authorize the City Manager to execute the Second Amendment.
DISCUSSION/ANALYSIS:
Contracting for janitorial services, including cleaning and disinfecting of City buildings, offices, and restrooms is an essential need for the City, especially during the current global pandemic.
The City entered into an agreement (Agreement) with MSC Janitorial Services, Inc. (MSC) on October 7, 2019, for an initial three-year term ending on October 7, 2022, for as-needed janitorial services. Citywide janitorial services include weekly cleaning of the Public Works offices and restrooms, seasonal porter service for the Powerhouse restrooms, 17th Street Lifeguard Headquarter restrooms, and as-need event support for City sponsored events.
Janitorial services for the Civic Center, are covered under a separate agreement and are not within the scope of work included in the agreement with MSC. Janitorial services for the Civic Center, which includes City Hall, Town Hall, public restrooms, and outdoor areas, are currently provided by D.H. Maintenance Services (D.H.). The term of the five-year agreement with D.H. is set to expire on June 30, 2023. However, the City was notified that D.H. will be going out of business, with August 31, 2022, being their last day of performing janitorial services for the City. As a result, the City is in need of a new contractor to perform janitorial services at the Civic Center building.
During the initial term of the Agreement, MSC has provided high quality services to the City and has been responsive to the City’s requests. As such, staff recommends that the current agreement with MSC be amended to incorporate the full scope of work D.H. is currently performing at the Civic Center. As a result, MSC will start performing all janitorial services citywide, excluding the Library and Community Connections Center, effective September 1, 2022.
1 August 10, 2022 Item 05
City Council Agenda Report
Second Amendment to the Agreement with MSC Janitorial Services August 10, 2022
To cover the additional services under the proposed extended scope of work, MSC provided the City with a quote, which is included with this agenda report as Attachment B. Pursuant to the Del Mar Municipal Code (DMMC) Section 7.04.090(O) – Exemption From Bidding, “situations where solicitations of bids or proposals for goods, services and/or professional services would be, in the discretion of the awarding authority, impractical, unavailing, impossible, or not in the best interests of the City” are exempt from competitive bidding. At this time, issuing a request for proposals for janitorial services would be impractical due to the time constraints, as janitorial services at the Civic Center must continue after August 31, 2022, in order to provide a safe and healthy environment for City employees and visitors.
Additionally, staff is proposing to extend the term of the Agreement with MSC for an additional two-year period ending on October 7, 2024, as Section 2.1 of the Agreement allows for a twoyear extension to the contract term contingent upon satisfactory performance by the Contractor.
An amendment to the Agreement is needed in order to revise and formally approve the updated scope of work, fee schedule, and the term extension. The original Agreement and the subsequent First Amendment to the Agreement with MSC are included with this agenda report as Attachments C and D, respectively.
FISCAL IMPACT:
There is no fiscal action to be taken by the City Council related to this agenda item. At this time, there are sufficient funds available in the Fiscal Year 2022-2023 Operating and Capital Budget to cover the additional scope of work and fees identified in the Second Amendment to the Agreement with MSC. Any necessary adjustments to the budget for the next fiscal year will be included in upcoming two-year budget process.
ENVIRONMENTAL IMPACT:
The action being considered is exempt from the California Environmental Quality Act (CEQA) because it is not a “project” per Section 15378(b)(5) of CEQA Guidelines. The action involves an organizational or administrative activity of government that will not result in the direct or indirect physical change in the environment.
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 – Second Amendment to Agreement with MSC Janitorial Services Attachment B – MSC Janitorial Proposal for Civic Center services Attachment C – Original Agreement with MSC Janitorial Services (2019) Attachment D – Second Amendment to Agreement with MSC Janitorial Services (2021) 2 August 10, 2022 Item 05
SECOND AMENDMENT TO AGREEMENT BETWEEN THE CITY OF DEL MAR AND MSC JANITORIAL SERVICES INC. FOR JANITORIAL SERVICES THIS SECOND AMENDMENT to the Agreement (Second Amendment) is made and entered into effective the 1st day of September, 2022, by and between the City of Del Mar, a Charter City and municipal corporation (“City”), and MSC Janitorial Services Inc. (“Contractor”) (collectively “Parties”).
RECITALS
WHEREAS, on October 7, 2019, the City and Contractor entered into an Agreement for asneeded janitorial services (Agreement), by which the City and Contractor established the terms and conditions for providing janitorial services for an initial three-year period ending on October 7, 2022; and WHEREAS, on February 1, 2021, the City and Consultant entered into the First Amendment to the Agreement amending the compensation for services; and WHEREAS, the Parties now desire to extend the term of the Agreement for an additional twoyear period as provided for in Section 2.1 of the Agreement; and WHEREAS, the Parties also desire to amend the scope of work and fees for service to include janitorial services at the Civic Center, which includes City Hall, Town Hall, public restrooms, and outdoor areas; and
WHEREAS, the Second Amendment is necessary in order to amend the scope of work, compensation for services provided by Contractor, and the term of the Agreement.
NOW, THEREFORE, the Parties hereby agree to amend the Agreement as follows:
Section 1. Section 2.1 of the Agreement is amended as follows:
2. DURATION OF AGREEMENT
2.1 Term, Time for Performance. The term of the Agreement is for a period commencing on October 7, 2019 and terminating October 7, 2024 (“Termination Date”) unless terminated earlier as set forth herein.
Section 2. Exhibit A to the Agreement (“Scope of Work”) is hereby replaced by the new Exhibit A included with this Second Amendment as Exhibit A, to provide for the expanded scope of services, including the Civic Center buildings, as described in the recitals above.
Section 3. Exhibit B to the Agreement (“Fee Schedule”) is hereby replaced by the new Exhibit B included with this Second Amendment as Exhibit B, to provide for additional services as described in the recitals above.
Section 2. Except as otherwise provided in this Second Amendment, all terms and conditions, and attachments and exhibits thereto, of the Agreement shall remain in full force and effect. [SIGNATURES ON THE FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties have caused this Second Amendment to be effective as of the date first written above.
CITY OF DEL MAR,
a municipal corporation
By:
Ashley Jones, City Manager
MSC Janitorial Services, Inc.
By:
Nolbert Navarro, General Manager
ATTEST:
By:
Sarah Krietor, Administrative Services
Manager/City Clerk
APPROVED AS TO FORM:
By:
Leslie E. Devaney, City Attorney
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EXHIBIT “A”
SCOPE OF WORK
I. GENERAL PROVISIONS
Contractor shall provide and/or purchase all equipment and labor required to perform the following services in a satisfactory manner:
1. Contractor shall perform a baseline cleaning of the facilities listed. This baseline cleaning will remove all visible spots, discoloring, smudges, dust, and all other filth from all areas high and low. This baseline cleaning will establish the model for all cleanings during the term of this contract.
2. Contractor shall provide janitorial services for the City of Del Mar facilities listed in this document.
3. Contractor shall provide and/or purchase all services, equipment, vehicles, and employees as defined in this document.
4. City will provide Contractor all products including liners, toilet paper, sanitary napkins, general hygiene products, and chemicals. These materials meet current City standards. Should Contractor require the use of specific products not currently stocked by City, Contractor will provide written request specifying product. City will have sole discretion whether requested products(s) will be provided.
5. Contractor will supply all cleaning equipment necessary to complete scope of work defined in this document. Including but not limited to mops, rags, vacuum, buckets, bottles, squeegees, and brooms. Limited storage space is available for such equipment.
6. Contractor shall adhere to all scheduling as defined in this document unless a schedule change has been approved by the City in writing.
7. Contractor shall provide additional janitorial services, as-needed, and as defined by change order(s) or proposal(s) for events and/or special considerations for the City of Del Mar.
8. Contractor shall maintain a current City of Del Mar business license, and his/her subcontractors shall do so as well.
9. Contractor shall maintain compliance with the City of Del Mar Municipal Code, regarding storm water runoff system discharge regulations and requirements, and San Diego Regional Water Quality Control Board (SDRWQCB) National Pollutant Discharge Elimination System (NPDES) Order No. 2013-0001. Compliance includes the implementation of practical methods, known as Best Management Practices (BMPs), which shall be used to protect the environment and to comply with regulatory requirements. Power washing and other wash water runoff shall be recovered and disposed of properly. Violations of any of these requirements may lead to a civil penalty of up to $5,000 per day, per violation.
10. Contractor shall present a professional image and maintain a high standard of quality and technical competence. Total responsibility for this is placed upon the Contractor. If conflict occurs between “Best Management Practice” and the specification, “Best Management Practice” shall prevail and the City shall be notified of any necessary changes to the specified operations/materials.
11. All furniture including benches, seats, tables, and trash receptacles are to be serviced by this Contractor. At no time should this be damaged by this Contractors forces. If damaged, the replacement and cost will be borne by this Contractor.
12. All furniture including benches seats tables and trash receptacles are to be serviced by this Contractor. At no time should this be damaged by this Contractors forces. If damaged, the replacement and cost will be borne by this Contractor.
13. No employee is allowed to bring non-janitorial personnel into the facilities including dogs, cats, and children.
14. The Contractor shall perform the required cleaning of the concrete decks and flagstone surfaces from the curb at 11th Street to the curb at 10th Street. In addition, cleaning as necessary from Camino Del Mar to the acoustical wall at the West property. 5 August 10, 2022 Item 05
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15. The artificial grass will be also policed of dog waste and cleaned per the manufacturer’s recommendations.
16. Aluminum doors and windows are to be maintained via cleaning.
17. Exterior light bollards require cleaning at the plaza and landscaping areas.
18. Concrete benches will require some cleaning considerations.
19. Glass at trellis to be cleaned at least monthly.
20. Elevator cab to be wiped down and cleaned daily including the track and jamb.
21. Exterior steps and stair will require service such as cleaning and maintaining of same.
II. FACILITIES SERVICED
Location Time of Service Frequency of Service and instructions
1. Public Works Yard –
2240 Jimmy Durante Blvd.
Friday’s after 4:30pm Weekly (1.3 per Month) Offices, annex trailers, kitchen, restrooms, and common areas including
tile, carpet, furniture, counter tops, desks, and
appliances
2. 17th Street Public
Restrooms – 1700 Coast
Blvd.
Seasonal (MaySeptember) 1:00pm –
9:00pm) adjusted based
on day light savings
Areas Daily
Public restrooms portered and cleaned daily.
Sink, sink basins, counter tops, showers,
shower drains, ramps and concrete surrounding
restrooms.
3. Powerhouse Public
Restrooms – 1658 Coast
Blvd.
Seasonal (MaySeptember) 1:00pm –
9:00pm) adjusted based
on day light savings
Areas Daily
Public restrooms portered and cleaned daily.
Sink, sink basins, counter tops, shower, shower
drains, ramps and concrete surrounding
restrooms.
4. As Needed Labor
Services
Based on City’s event
calendar
Areas Daily
Public restrooms portered and cleaned daily.
Sink, sink basins, counter tops, shower, shower
drains, ramps and concrete surrounding
restrooms. Trash patrol, litter cleanup, spill
response.
Civic Center
5. City Hall – 1050 Camino
del Mar
6 p.m. to 4 a.m. Daily
Offices Monday to Friday
6. Town Hall-1050 Camino
Del Mar
6 p.m. to 4 a.m. Areas Daily
Both male and female restrooms
portered and cleaned Monday-Friday
7.Parking Structure 6 p.m. to 4 a.m. Weekly a total clean. Trash cans to be policed daily with City/Town Hall services.
8. Breezeway 6 p.m. to 4
a.m.
Vacuum or sweep, dust window ledges, clean
entry doors, clean wood paneling and polish
glass surfaces.
9. Staff restrooms 6 p.m. to 4 a.m. Daily-workdays, both male and female. Supplies replaced as needed to a full capacity in their
respective receptacles.
10.Plaza and Outlook areas 6 p.m. to 4 a.m. Daily-empty trash receptacles and replace can liners. Recycle cans to be emptied as well.
11. Sidewalks at
North/South/ and East
6 p.m. to 4 a.m. Daily-sweep weekly and police landscape daily.
12. Stairs at elevator 6 p.m. to 4 a.m. Daily-sweep daily and wash down.
13. Elevator 6 p.m. to 4 a.m. Daily-vacuum daily.
14. Entrance Mats, Ranger,
Main, Town Hall entries
6 p.m. to 4 a.m. Daily-remove and clean debris under mats.
15.Trash Enclosure 6 p.m. to 4 a.m. Daily-ensure that no trash or debris is stored outside respective containers (recycle, waste).
Boxes collapsed. Including room adjacent.
16.Parking Areas-Westerly 6 p.m. to 4 a.m. Weekly-or as necessary, vacuumed, or swept. 6 August 10, 2022 Item 05
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Location Time of Service Frequency of Service and instructions
17. Windows-Less than 12
feet including entries, and
panels
6 p.m. to 4 a.m. Daily- as required to remove handprints, water marks, and etc.
18. Windows-Over 12 feet
(Exterior)
6 p.m. to 4 a.m. Annually- or as required.
19. Windows-12 feet
(Interior)
6 p.m. to 4 a.m. Daily-this includes doors and sidelites at doors, counter glass and partition glasses.
20. Clearstory windows
over 12 feet. Town Hall and
City Hall.
6 p.m. to 4 a.m. Annually-this service must be performed with a safety belt and a trained individual only.
21. Copy Room 6 p.m. to 4 a.m. Daily
22. Glass Panel atop Trellis
at elevator
6 p.m. to 4 a.m. Quarterly
23. Open Web Trusses 6 p.m. to 4 a.m. Quarterly-dust/vacuum leaving no residue on desks below.
24. Kitchen 6 p.m. to 4 a.m. Daily
CIVIC CENTER PUBLIC RESTROOM CLEANING SERVICE
LOCATION AREA
City Hall, 1050 Camino Del Mar,
California
Daily Sunday to Saturday-Exterior public restroom. Male and female facilities at first level.
CIVIC CENTER FACILITY EXTERIOR CLEANING SERVICE
LOCATION AREA/TASK FREQUENCY
1. City Hall Patio Area Daily
2. Over Look IPE Wood Decks Patio Area Daily
Concrete and Flagstone Areas Plaza Level Daily
4. Trash and refuse policing From North to South, East to West curb to curbs Daily
5. Parking Structure Empty trash, ensure no trash accumulates Daily
6. Parking Lot at West Clean trash and debris Daily
7. Furniture Clean and wipe down Daily
8. Windows/Doors inside and outside Clean smudges handprints and water marks Daily Quarterly
9. Light Bollards Dust and wipe down without solution Daily
10. Drinking fountain and bike tool
rack
Wipe down Daily
11. Elevator door Wipe down Daily
12. Wood decks Sweep/Vacuum, Pick up trash and debris Daily
13. Clean Trash Enclosure Ensure all debris is located in correct containers Daily
14. Clean Glass at elevator/trellis Using safe practices of ladders clean surfaces with water and squeegee.
Weekly
15. Clearstory windows at Town Hall Exterior
Person must be tied off with the provisions
installed. Harness provided by the Contractor.
Annually
16. Clearstory windows at City Hall Exterior
Person must be tied off with the provisions
installed. Harness provided by the Contractor.
Annually
17. Kitchen exhaust ducting Clean the framing and all exterior amenities while performing window cleaning at clearstory
windows.
Annually
III. SPECIAL PROVISIONS
1. AS NEEDED LABOR SERVICE
1.1 City (Public Works Operations Manager, or as designated) will communicate staffing needs and timing no less than one week in advance.
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1.2 As-needed labor will comply with all standards stated within this document.
1.3 As-needed labor will receive direction from Public Works and/or Community Services City Staff.
1.4 Services for events may include, but not limited to, additional cleaning and trash removal.
1.5 Facilities/Open Space locations will vary.
2. BEST MANAGEMENT PRACTICES
2.1 Do not allow contaminated water or cleaning solution to enter the storm water system.
2.2 Best Management Practices: This work must be in compliance with all current and future water quality requirements as set out in Del Mar’s Municipal Code ‘Storm Water and Urban Run-Off Management and Discharge Control’ and State and Federal requirements.
3. COMPANY EMPLOYEES AND VEHICLES
3.1 Contractor will supply a pool of employees sufficient to meet the agency’s needs.
3.2 Contractor will provide or pay for their employees to wear clean, neat appearing uniforms that will be worn while working on City premises. Uniforms will consist of a polo shirt or other collared shirt with name tag and Contractor’s identification and full length work pants.
3.3 Vehicles used will have the Contractor’s name or logo permanently affixed to the front doors of both passenger and driver’s side.
3.4 Contractor’s vehicles will be clean, orderly and in good working order.
3.5 Contractor and his employees will be courteous and show respect to the public, City employees and other Contractor employees at all times. Use a friendly voice tone and offer assistance when necessary.
3.6 Contractor and its employees must successfully complete a criminal record check after providing the County Sheriff’s Department two current passport size photos, a completed request for Live Scan service, a completed Janitorial Application, and a copy of the applicant’s driver license or Government issued identification.
3.7 The applicant will need to contact the County Sheriff’s Department at (858) 974-2110 to schedule an appointment to be Live Scanned and have their photo taken for the Cityissued contractor identification card.
3.8 Once the applicant has been live scanned (fingerprinted), the County Sheriff’s Department must wait for a response from the Department of Justice.
3.9 The Department of Justice may send the County Sheriff’s Department a 30-day, 60-day or 90-day delay on the applicant. The City has no control over these delays. This occurs because applicants may have common names, have been previously permitted, or have prior criminal history or arrest information on file. No applicants will be approved and no issuance of keys, security codes, or access information for any City facility will be provided by the contractor or the City to the applicant until all information has been received from the Department of Justice and that applicant cleared by the City and a City of Del Mar contractor identification card issued.
3.10 Contractor will pay the fee for Live Scan for each employee working within City facilities.
3.11 The employee will be placed on subsequent notification. This requirement allows the department to receive notification of any arrest subsequent to the Live Scan check.
3.12 Contractor and its employees must successfully pass a drug screening prior to conducting work under this contract.
3.13 Contractor is responsible for their employees’ actions on these sites. Contractor will ensure that his employees do not have other “unapproved” personnel including children in the facilities or in the Contractor’s vehicles outside the facility.
3.14 Contractor will ensure that his employees do not store personal property of any kind in or on City facilities.
3.15 Contractor will not issue, loan or otherwise allow the procurement of keys, access information, or codes to anyone, including employees, without first receiving authorization from the City Representative and without first successfully completing the background check and Live Scan and submitting said documentation to the City Representative. 8 August 10, 2022 Item 05
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3.16 Contracted employees will refrain from making or receiving personal calls during working hours. Non-emergency calls should be made during breaks or lunch. At no time, other than emergency should the telephone be used by this Contractor.
4. BUILDING SECURITY
4.1 Report to the City Representative in writing any walls, rooms, carpeting, equipment and furniture damaged by vandalism, graffiti, stains, water leaks, etc.
4.2 Secure and lock all doors before leaving unoccupied buildings and Public Restrooms.
4.3 Turn off all lights not left on for security reasons as instructed.
4.4 Activate intrusion alarm security systems after completing work and before leaving buildings.
4.5 Deactivate security systems before entering buildings at the beginning of work as instructed and where applicable.
4.6 Report in writing to the City Representative security system false alarms activated by Contractor’s employees or otherwise occurring during janitorial service when no City employee is present.
4.7 Provide to the City Representative a list of the keys and codes issued to Contractor’s employees. This list will include employee names, addresses and telephone numbers that these codes and keys are issued to. Contractor will notify the City Representative of all and any keys or other pass code information lost by Contractor’s employees.
4.8 Contractor shall not duplicate keys without first receiving written permission from the City Representative.
4.9 Contractor is responsible for retrieving all City security information from those employees no longer employed by the Contractor, for whatever reason.
4.10 Contractor will notify the City Representative of any Contractor employee whose employment has been terminated that has or does have City security information or appurtenances.
4.11 Contractor is responsible for the cost of any re-keying, entry code, or security code changes needed due to non-retrieval of this security information, keys or appurtenances from its past employees.
5. CITY HOLIDAY SCHEDULE
The City of Del Mar Public offices will be closed in observation of the following holidays. Cleaning service will continue as per schedule for those locations that receive daily cleanings per this document. City offices will not be cleaned on these dates:
New Year’s Day
Martin Luther King’s Birthday
President’s Day
Memorial Day
Independence Day
Labor Day
Veterans’ Day
Thanksgiving
Day after Thanksgiving
Christmas Eve
Christmas Day
New Year’s Eve
New Year’s Day
6. TASKS
6.1 The Contractor will restock all “City Provided” products including, but not limited to: toilet paper, paper towels, soap, sanitary napkins, plastic liners etc.
6.2 The Contractor will supply all equipment in good working order including, but not limited 9 August 10, 2022 Item 05
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to: janitorial vehicles, cleaning supplies, vacuum cleaners, floor scrubbers, chemicals and all other cleaning appurtenances.
6.3 Contractor will separate all recyclable material from other refuse and deposit in appropriate receptacle at each FACILITIES SERVICED location.
6.4 Contractor will leave each facility visually clean having wiped, spot removed, dusted mopped, vacuumed, emptied or otherwise cleaned each area per this document to the standards defined within this document, industry standard and City expectation.
6.5 The following is a guideline for cleaning these areas as defined in this document. The intent of this document and the City of Del Mar is to find these areas visually clean, all hard surfaces sanitized, and ready for use upon entry every day. All areas should smell clean but should not have a bold cleanser smell upon entry.
6.6 Restroom, Daily Cleaning:
Restock all “City Provided” supplies so that all dispensers are completely full at the conclusion of each service.
Empty trash, sanitize and install new liner.
Check for stoppages in toilets and urinals by flushing and observing; use a plunger if necessary. Notify Public Works at (858) 755-3294 for continued stoppages or any leaks.
Remove all webs, dust, litter, debris and markings, wipe clean and sanitize all surfaces including doors, sills, partitions (as needed), walls (as needed), ceilings (as needed), mirrors, counter tops, tables, benches, chairs, vents, toilets and conventional urinals, etc. This includes, but is not limited to, wads of paper stuck on ceilings, tape, graffiti, etc.
Clean with the approved degreaser, scrub brushing discolored areas of built up deposits, all hard surfaced floors that are not waxed or otherwise sealed with waterbased sealants. Rinse, mop or squeegee to minimize cleanser buildup and a non-slip surface.
Clean all, or otherwise sealed with a water based sealant, floors to remove all visible cleanser buildup, soil, filth or other discoloring.
Clean all flooring with the approved no-rinse cleaner for all tile floors. Clean, sanitize and remove all soap build-up, visible filth and discoloring from all tile surfaces, grouts, sinks, shower stalls, shower curtains, benches, and diaper changing stations.
Dump at least 1 quart of mop bucket used cleaning solution into the floor drain when applicable or at each visit to mitigate odors. Waterless urinals will be wiped clean after applying manufacturer approved cleaner. No other cleaning materials or fluids, including clean water, will be dumped or applied to these urinals.
6.7 Kitchen, Daily Cleaning:
These areas must meet or exceed County of San Diego health standards each and every cleaning. Failure to meet these standards are a reason for termination of Contract.
Restock all “City Provided” supplies so that all dispensers are completely full at the conclusion of each service.
Empty trash and containers, sanitize and install new liner. Remove all webs, dust, litter, debris and markings, wipe clean and sanitize all surfaces including doors, sills, partitions (as needed), walls (as needed), tables, ceilings (as needed), cabinets, chairs, vents, microwaves, toaster oven, range top, oven, coffee machine, sinks, dishwasher, refrigerator exterior surfaces, floor sinks, shelves and mop sink and shelve, and etc.
Clean with the approved degreaser, scrub brushing discolored areas of built up deposits, all hard surfaced floors that are not waxed or otherwise sealed with water based sealants. Rinse, mop or squeegee to minimize cleanser buildup and a non-slip surface.
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Spot clean all floors, fabric covered furniture, windows and other areas periodically cleaned with a City-approved fabric or carpet spot cleaner. Spot clean all windows and other areas periodically cleaned. Clean all flooring with the approved no-rinse cleaner for all floors. Clean all waxed, or otherwise sealed with a water based sealant, floors to remove all visible cleanser staining, soil and filth buildup or other discoloring. Clean, sanitize and remove all soap build-up, visible filth and discoloring from all tile surfaces, sinks and other areas.
Dump at least 1 quart of mop bucket used cleaning solution into the floor drain when applicable on a daily basis.
Clean window sills and concrete stem walls with the appropriate cleaners.
6.8 Kitchen and Lunch Room Area Weekly (Friday Night) Cleaning:
Friday nights, wipe clean and sanitize all interior surfaces. Leave all condiments undisturbed such as, but not limited to, mayonnaise, ketchup, hot sauce, salad dressing, butter, etc.
6.9 Reception Areas, Copy Room, Office Areas, Hallways, Courtyards, Plazas, Patios Daily Cleaning:
Restock all “City Provided” supplies so that all dispensers are completely full at the conclusion of each service.
Empty trash and containers, sanitize and install new liner. Remove all webs, dust, litter and debris and markings, wipe clean and sanitize all surfaces including doors, sills, partitions (as needed), walls (as needed), light fixtures, cabinets, chairs, sound equipment, vents, tables, shelves (where they are clear of materials), desks (where they are clear of papers), etc. Open web trusses, beams, support and baffle siding, tops of doors, windows and other surface that can/will collect dust.
Wipe all natural wood surfaces with furniture polish. Clean all travertine and other natural stone with a City-approved cleaner. Clean with the approved degreaser, scrub brushing discolored areas of built up deposits, all hard surfaced floors that are not waxed or otherwise sealed with water based sealants. Rinse, mop or squeegee to minimize cleanser buildup and a non-slip surface.
Sweep or vacuum all interior areas as needed.
Sweep all exterior areas as needed.
Clean all waxed, or otherwise sealed with a water based sealant, floors to remove all visible cleanser staining, soil and filth buildup or other discoloring. Clean, sanitize and remove all soap build-up, visible filth and discoloring from all tile surfaces and grouts, sinks, counters, epoxy flooring, and other areas. Clean all vinyl and laminate flooring with the approved no-rinse cleaner for all vinyl floors.
Dump at least 1 quart of mop bucket used cleaning solution into the floor drain when applicable at least Daily.
Spot clean all carpeted floors, fabric covered furniture, windows and other areas periodically cleaned with a City-approved fabric or carpet spot cleaner. Vacuum all carpeted floors and other fabric covered furniture. Clean and vacuum all entrance mats at the entrances both interior and exterior of the buildings.
6.10 Window Cleaning:
All interior windows up to and including 12 feet from the floor will be spot cleaned for smudges, hand prints or other markings daily.
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All exterior windows up to and including 12 feet from the floor, patio, walkway or landscaping will be spot cleaned for smudges, hand prints, bird droppings, plant sap, or other markings Annually are as required. These should be the ones underneath the overhangs.
6.11 Janitorial Cleaning Log:
The FACILITIY shall have the Contractor-provided janitorial cleaning log. This log will be filled out by the Contractor’s employee before existing the facility site, each visit. The janitorial cleaning log has an area for notes and comments. All alarm soundings, graffiti, pest control needs, security issues, leaks or non-working plumbing devices, damage to property, and areas left not serviced will be noted in this comments area. All notations in the area for notes and comments will be relayed within 24 hours to the City Representative by e-mail.
6.12 Trash/Recycling:
All trash/recycling receptacles will be serviced/emptied, cleaned with liners changed by the Contractor when that area is serviced/cleaned as per schedule. The Contractor will deliver the trash/recycling receptacles to the curbside
6.13 Carpet Cleaning by Hot Water Extraction:
All carpeted areas and fabric covered furniture will be cleaned by hot water extraction once a year with the exception of the carpeted areas and fabric covered furniture defined below. Any additional cleaning outside of what is defined in this document will be done by service adjustment that has been agreed upon by both parties. City Hall and Town Hall. All carpeted areas will be cleaned two times a year. This cleaning schedule will be approved through the Public Works Department utilizing the manufactures approved cleaning methods and materials.
6.14 Floor deep cleaning:
Floors that are not carpeted will be stripped and sealed twice per year. If yellowing or other discoloration is evident in the floor sealant, Contractor is required to clean as necessary as often as necessary utilizing the manufactures approved cleaning methods and materials.
6.15 High level cleaning (all areas above 12 ft.):
High level areas in the City Hall where ceiling tiles, drywall or other low ceiling types don’t exist or are high enough that these areas are not cleaned daily will be cleaned quarterly or as requested.
All lights, pipes, fire sprinkler lines and refrigeration lines, lumber, vents, ductwork, webs, trusses, gutters, beams and other building appurtenances that collect dust, mold or other filth in open occupied areas whether seen or hidden from view of the occupants will be externally cleaned, eradicated and sanitized. Ceiling tiles will not be removed to accomplish any of the aforementioned.
6.16 Janitorial Cleaning Log:
The FACILITIY shall have the Contractor-provided janitorial cleaning log. This log will be filled out by the Contractor’s employee before existing the facility site, each visit. The janitorial cleaning log has an area for notes and comments. All alarm soundings, graffiti, pest control needs, security issues, leaks or non-working plumbing devices, damage to property, and areas left not serviced will be noted in this comments area. All notations in the area for notes and comments will be relayed within 24 hours to the City Representative by e-mail.
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7 SERVICE ADJUSTMENTS
The City reserves the right to increase or decrease the services as needed. Services and fees for new facilities shall be added at the average rate per square foot for a comparable facility at the time of the addition. Such changes will be according to the terms and conditions of said bid specification and will be done through a duly authorized change notice to the master agreement for regular service and by City-approved proposal for event or special cleanings. 8 SITE INSPECTION AND REPORTING
8.1 Report immediately by telephone (during regular working hours (858) 755-3294, after hours issues call Del Mar Public Works dispatch at (858) 756-1126 issues that may require immediate action; for emergencies call 911):
Incidents of injury, damage or potential hazards to the public, end users or employees. Running water or leaks
Sewer backups
8.2 Report immediately by e-mail ([email protected]) issues such as, but not limited to:
Public nuisances
Work performance delays
Repairs needed
Dripping water
Non-emergency electrical issues such as, but not limited to, outlets without power or entire buildings without power.
Lost and found articles
Deliver any lost and found article to Del Mar Public Works, 2240 Jimmy Durante Boulevard, Del Mar CA 92014 or City Hall, 1050 Camino del Mar, Del Mar CA 92014
9. PAYMENTS
9.1 Invoices will be submitted to: City of Del Mar, Public Works 2240 Jimmy Durante Boulevard Del Mar, California 92014 Attn: Public Works Operations Manager.
9.2 Contractor will submit a monthly payment invoice listing each of the FACILITIES SERVICED and each individual invoice amount.
9.3 If the City determines that there are deficiencies in the performance of this contract, the Contractor will be notified both verbally and in writing each time service requirements are found to be unsatisfactory and corrective action is necessary. Should the Contractor fail to correct any deficiencies within 2 hours, the City may exercise the following measures:
Deduct from the Contractor’s payment the amount necessary to correct the deficiency.
Withhold the entire or partial payment.
Utilize City forces or alternate source to correct the deficiency and deduct from the Contractor’s payment the total cost, including City overhead.
10. PRODUCTS
City will provide contractor with all supplies stored at designated areas respective to each facility.
Contractor will replenish on each service date all products used in that facility.
11. EQUIPMENT
11.1 Contractor will supply and maintain all tools and equipment in good and proper working condition, such as clean mops, brooms, bucket and wringers, carts, dust pans, dusters, vacuum cleaners, janitorial vehicles, cleaning supplies and chemicals, and secure an adequate inventory of all janitorial supplies and products. 13 August 10, 2022 Item 05
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11.2 All equipment provided by the Contractor will be of commercial grade.
11.3 Contractor will supply each facility two mops, a “clean mop” for kitchens, lunch rooms, prep areas, etc. and another mop for all other areas and incidental cleanups.
11.4 “Clean mops” will be marked so that employees of the City as well as Contractor’s employees can easily recognize these tools as clean.
11.5 Contractor will replace all mops as needed to ensure adequate, sanitary cleaning.
11.6 All equipment stored on site at a City facility will be stored neat and orderly. All Janitors closets will be stowed in such a way that City employees can easily find what is needed, during their work shift, without moving other items with the exception of the janitorial cart.
All mops, brooms, dust pans, and other cleaning appurtenances will be either hung or shelved neatly at all times they are stored.
11.7 Any shelf units needed for the storage of the supplies as described in this document at any facility listed is subject to the approval process in SUBMITTALS. Once approved, the shelf unit will be installed by the City. Upon installation, the shelf unit is then the property of the City of Del Mar.
11.8 Any rack systems needed for storage of other janitorial equipment as described in this document at any facility listed is subject to the approval process in SUBMITTALS.
11.9 Any chemical dispensing unit/equipment and appurtenances that the Contractor finds critical to his operation is subject to the approval process in SUBMITTALS. Purchase, assembly and installation will be done, contracted or coordinated by the Contractor at his expense and under the direction of City staff. This is not a reimbursable item.
12. SUBMITTALS
12.1 All materials and consumable products are subject to prior approval by the City’s Representative. Contractor will provide submittals for the following items to the City’s Representative for approval. All materials and consumable products used at these project sites will be subject to prior approval through this submittal application process.
No materials will be accepted for use on this project without prior approval, in writing. All submittals will have the appropriate MSDS attached for City review.
12.2 Any Contractor-requested replacements for the items listed in “PRE-APPROVED PRODUCTS” are subject to this approval process.
13. QUALITY ASSURANCE
13.1 Contractor is responsible for training, supervising, equipping, checking work quality, ensuring adherence to schedule, and all other management issues involved with his employees. Quality control is the responsibility of the Contractor.
13.2 Contractor will regularly check janitorial closets and storage areas for orderly storage.
13.3 Contractor will notify the City Representative in writing of any conditions or events as defined in this document.
14. FACILITY CONTACTS
Public Works, 2240 Jimmy Durante Blvd.
Tom Romaine, Public Works Operations Manager
(858) 704-3684, [email protected]
All written communication from the Contractor to contacts of the individual facilities will be carbon copied to the City Representative. All written communication from the Contacts of the individual facilities to the Contractor will be carbon copied to the City Representative.
IV. STANDARDS OF PERFORMANCE / DEFINITIONS
These standards are an outline of general expectations of cleanliness but are not meant to replace or supersede the latest industry standards or materials and equipment manufacturers’ recommendations. 14 August 10, 2022 Item 05
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Each of the Contractor’s Employee’s shall be equipped with the necessary equipment to carry out the proper performance of the cleaning as specified. This equipment shall be available and in possession of the Contractor’s Employee’s at all times while carrying out their duties.
1. Service Level (Acceptable Quality): The level of services as outlined in these Specifications shall consistently be maintained. During the Contract period, the Contract Administrator will conduct monthly inspections of the facilities under this Contract. The inspections are based on standards for commercial facilities within the maintenance industry.
2. CHROME SURFACES: Cleaning chrome requires the removal of surface spots, fingerprints, smudges, etc., with the appropriate chrome polish.
Standard: Surfaces will present a clean uniform shining appearance free of all soil, marks, smudges, streaks.
3. DAMP MOPPING: Damp mopping requires the use of cotton or similar yarn type string mops (24 oz.) that have been mechanically wrong/squeezed to remove excess solution for purposes of removing light soil, dirt, liquid or other foreign material from a floor that does not require the complete mopping of the area or when the area is not soiled sufficiently to require wet mopping.
Standard: A damp mopped floor shall be free of all dirt, debris soil, liquids or other foreign material. All splash marks/spots on walls and furniture/fixtures shall be removed before completion of the damp mopping task. All items moved to accomplish this task shall be returned to their original positions.
4. DISINFECTING: Disinfecting is the application of a germicidal solution to surfaces to kill or neutralize 99.9% of the material containing or supporting the growth of bacterial/viral organisms.
Surfaces should remain “wet” for a minimum of 10 minutes or per manufacturer’s recommendation.
Standard: Surfaces shall be as free of material containing living bacteria, viruses, or other contaminations that are capable of causing infections.
5. DISPENSER CLEANING AND SERVICE: Dispenser cleaning/service requires damp wiping dispensers with a disinfectant, checking/refilling of all towel, toilet tissue, seat covers, soap, or any other dispensers which may be identified by the Contract Administrator.
Standard: Dispensers will be disinfected, present a clean uniform shining appearance free of all soil, marks, smudges, streaks and will have an adequate supply of the applicable dispensed products.
6. DUSTING: Normal or low dusting includes all levels up to six (6) feet in height. All high dusting will be above six (6) feet high.
Standard: Items shall be free of any laden airborne materials, streaks, smudges, and cobwebs. Laden airborne matter shall be removed by either mechanical, chemical, or manual means. Devices, which merely displace or redistribute the matter, such as feather dusters, will not be used, unless treated to attract and hold the matter. All items moved to accomplish this task shall be returned to their original position.
7. ENTRANCE GLASS: Cleaning of glass is cleaning the inside and outside glass surfaces and the surrounding boundary of the applicable entrance area.
Standard: Glass shall be free of streaks, smudges, fingerprints, etc. Surfaces surrounding the entrance shall be free of dirt, dust, fingerprints, and have a clean appearance.
8. ENTRANCE MATS: Carpet mats shall be vacuumed with a commercial vacuum before spot cleaning. Entrance mats made of rubber or polyester shall be swept, shaken, vacuumed or washed. Entrance mats shall be lifted, moved to remove soil and moisture underneath, and replaced.
Standard: There shall be no dirt left on surfaces.
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9. FIXTURES: Cleaning of restroom & kitchen fixtures and fountains require the removal of dust, dirt, debris, spots, stains, and smears from sinks, slop sinks, toilets, urinals, and fountains with a germicidal solution.
Standard: Fixtures will be disinfected and there shall be no dust, dirt, spots or debris on the fixtures.
10. FURNITURE: Cleaning of furniture and tables requires dusting and/or damp wiping.
Standard: Surfaces are to be free of dirt, dust, debris, marks, and film.
11. GLASS/WINDOW: Glass and window cleaning requires the removal of dirt, soil, smudges, fingerprints, and other foreign material from glass window, doors, partitions, or any other items, which may consist in whole or part of a glass, or similar material including mirrors.
Standard: Glass surfaces shall be free of all dirt, soil, smudges, streaks, smears, film, or any other foreign substances. All excess spray/solution must be removed from any surrounding trim or surfaces and glass/window surfaces shall have a uniformly bright appearance. Any items moved to accomplish this task must be returned to their original positions.
12. POLICING: Policing is picking up paper, trash, empty bottles, containers, and other discarded materials; spillages, accidents, plumbing failures, and inclement weather.
Standard: Area(s) being policed shall be free of debris. Area(s) shall present an overall clean appearance.
13. POLISHING: Polishing requires the use of a high-speed floor machine and a clean pad designed for polishing or buffing.
Standard: The floor should have a “non-yellowed” high-gloss appearance.
14. RECEPTACLES AND CLEANING: Cleaning and disinfecting receptacles is defined as wiping or washing containers with a germicidal solution and replacing plastic liners.
Standard: Receptacles shall be considered properly cleaned when both the inside and outside are clean, free of stains, dried refuse and odors, and a plastic liner replaced, if necessary.
15. REFRIGERATORS: Requires cleaning outside surfaces, especially the handles with a germicidal detergent solution.
Standard: Outside surfaces shall present an overall clean appearance.
16. RESTROOMS: Cleaning of restrooms requires the removal of trash, cleaning of floors, fixtures, urinals, toilets, receptacles, faucets, handles, dispensers, walls, partition stalls, and doors with a germicidal solution. All glass, chrome, and stainless-steel surfaces shall be cleaned and buffed to a shine.
Standard: Restrooms shall be considered properly cleaned when floors are mopped and fixtures, urinals, toilets, waste receptacles, wash basins, faucets, handles, dispensers, partition stalls, and doors are cleaned with a germicidal solution. All glass, chrome, and stainless-steel surfaces shall be cleaned and buffed to a shine, waste receptacles emptied, and dispensers refilled.
17. SCRUBBING: Machine scrubbing requires the use of mechanized scrubbing/vacuum machines to be more aggressive than wet mopping; this may include large areas such as halls, lobbies, garages, ramps, or similar large areas which would otherwise require extensive labor to complete in a reasonable time period.
Standard: Machine scrubbing shall be held to the same quality standard as wet mopping and shall remove all scuff marks.
18. SHOWER CURTAIN/DOORS: Cleaning of curtains/doors requires washing curtains with an approved cleaner that will eliminate fungus and green mold.
Standard: Washed with a germicidal solution with no mold and/or odor remaining. 16 August 10, 2022 Item 05
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19. SHOWER STALLS: Cleaning of shower stalls is defined as the removal of soap scum, mold, stains, and odors from surfaces (including grout) and cleaning the entire enclosure with a germicidal solution or steam cleaning.
Standard: Walls, ceiling, enclosures, grout, and fixtures are cleaned with a germicidal solution and chrome is buffed to shine. There shall be no mold and/or odor remaining.
20. SHOWER SAFETY MATS: Cleaning of mats requires washing mats with an approved cleaner that will eliminate fungus and mold.
Standard: Shower safety mats shall be considered properly cleaned when they are washed with a germicidal solution.
21. SMOKING AREA: City of Del mar facilities are designated as smoke-free facilities. Ash butt containers outside any buildings shall be cleaned by Contractor’s employees once per week as well as the designated area where smoking is allowed to be free from cigarette butts and debris.
Standard: Smoking area is to be policed and free of cigarette butts and debris.
22. SPOT CLEANING: Spot cleaning requires the removal of dirt, soil, debris, liquids, stains, or other foreign materials from carpeted areas which can be accomplished by cleaning only the immediately affected area where cleaning the whole area would not be necessary. Spot cleaning may be accomplished by any of the methods contained herein and as dictated by the circumstances of the soiling. Carpet spots shall be removed immediately with an approved carpet cleaning solution in such a manner, which will not leave rings or discoloration.
Standard: Spot cleaning shall remove completely any evidence of the soiling which necessitated the cleaning and return the finish of the area affected to its pre-soiled condition without evidence of occurrence or cleaning.
23. SWEEPING OR DUST MOPPING: Sweeping/dust mopping requires the removal of loose dirt, dust, debris, and other foreign material through either manual or mechanized methods, as appropriate for the location and situation.
Standard: A swept area shall be free of all loose dirt, grit, lint, dust, debris, or other foreign material with no build up in corners, crevices, under or around furniture parts. All items moved to remove dirt shall be returned to their original location.
24. TRASH/WASTE REMOVAL: Trash/waste removal requires the collection of all materials, which have been placed into appropriate containers, and taken to a specified site for disposal.
Standard: All trash/waste and soiled liners shall be removed from all trash/waste containers, and a new trash/waste liner shall be fitted into all such containers.
25. VACUUMING: Vacuuming requires the mechanical removal of loose dust, dirt, soil, debris, and other foreign material from carpeted floors and other items (e.g. couches, chairs, walls, curtains/drapes), which require this method of cleaning.
Standard: There shall be no evidence of any dust or dirt or any other loose foreign material.
Materials shall be left in a lint free state. All items moved during this process shall be returned to their original positions.
26. WET MOPPING: Wet mopping requires the removal of built up dirt, soil, liquids, or other foreign materials from a floor using clean cotton or similar yarn type string mops (24 oz.) and mechanically wrung out so as to have sufficient neutral detergent and water solution or disinfecting detergent and water solution. This shall include rinsing if required or as recommended by the detergent manufacturer.
Standard: A wet mopped floor shall be free of all dirt, debris, soil, liquids, or other foreign material. It will present a uniform appearance free of streaks, smudges, heel marks, or any other marks, which can be reasonably removed through this cleaning method. All splash marks/spots on walls and furniture/fixtures shall be removed before completion of the wet mopping task. All items moved to accomplish this task shall be returned to their original 17 August 10, 2022 Item 05
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positions.
V. SPECIFICATIONS – CUSTODIAL (COMMON AREAS, OFFICE AREAS, KITCHEN AREAS,
RESTROOMS, SHOWERS)
1. REFUSE – CONTAINERS
a) Empty Containers/Replace Liner: All refuse and recycling containers shall be completely emptied, and a clean, appropriately sized liner installed. b) Wipe Clean Containers: Containers shall be damp wiped clean to remove stains, smudges, and dried refuse.
c) Recycling Containers: Recycling Containers for all recyclables are to be emptied and a clean, appropriately sized liner installed. Do not empty containers marked for shredding or battery recycling.
d) Clean & Disinfect Waste Receptacles: Containers shall be cleaned and disinfected so as to remove stains, smudges, and dried refuse.
e) Kitchen Areas – Food Waste Collection Containers: Food waste collection containers are to be emptied and a clean, appropriately sized liner installed.
2. CLEAN & DISINFECT
a) Clean Doors, Walls, and Frames: Remove finger marks, furniture rubs, and scuff marks from walls, doors, frames, and kick plates.
b) Clean and Disinfect Handles, Handrails, and Covers: Clean and disinfect door handles, handrails, electrical switch plates, and outlet covers. c) Common Areas – Clean and Disinfect Drinking Fountains: Stainless steel fountains are to be cleaned with a stainless cleaner, disinfected, inside and out, as well as fixtures.
Fountains are to be free of water spots, stains, and smudges. d) Common and Office Areas – Clean and Disinfect Communication Equipment: Disinfect and remove dirt, smudges, and finger marks from telephones. e) Kitchen Areas - Wipe Counters, Cabinets and Appliances: Drain boards, cabinet fronts and pulls, countertops, tables, towel dispensers, and appliances (exterior of refrigerator, stove, dishwasher) are to be cleaned so as to remove finger marks, smudges, and left in a dust/dirt free condition. Note: No chemicals should be used on the Countertops located in the City Hall.
f) Kitchen Areas - Clean and Disinfect Kitchen Sinks & Faucets: Stainless steel sinks, faucets, and handles are to be cleaned and disinfected with a disinfectant to remove all stains, spills, and food debris.
g) Kitchen Areas - Restocking Dispensers: Kitchen dispensers (paper towel and soap) are to be checked. Dispensers shall be filled as needed or as directed by the Contract Administrator.
h) Restrooms and Showers - Prime Floor Drains: Floor drains are to be flushed with water so as to clean out the traps and eliminate odors. If necessary, a disinfectant odor neutralizer is to be used in conjunction with the water.
3. FURNITURE
a) Furniture Placement: Furniture, chairs, refuse, and recycle containers are to be placed back in their appropriate locations.
b) Furniture – Damp Wipe: Furniture shall be damp wiped with disinfectant to remove stains, smudges, and dried refuse.
c) Furniture – Vacuuming: Upholstered furniture shall be vacuumed clean, debris, and lint free.
4. DUSTING
a) Dust Horizontal Surfaces: Horizontal surfaces, window ledges, light fixtures, picture frames, and the like are to be dust free.
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b) Dust Furniture – Common Area: Common area furnishings, directory signage, tables, and chairs are to dust free.
c) Dust Furniture – Office Area: overhead bins, file cabinets, partitions, tables, and chairs (excluding desks) are to be dust free.
d) Dust Furniture – Kitchen Areas: Kitchen furniture, tables, and chairs are to be dust free. e) High Dust – Vents, Grilles, Lighting, Etc.: High dusting shall be anything over 6’ from the floor including vents, grilles, exhaust fans, light fixtures, clocks, door tops, and frames.
5. WINDOWS, GLASS, AND BLINDS
a) Clean Entry Glass: Entry glass shall be cleaned and streak free inside and out. b) Clean Window Blinds, horizontal, and vertical shall be clean, dust, and dirt free. c) Office Glass: Interior and exterior surfaces are to be cleaned and streak free, including re-lite.
d) Clean Mirrors: Mirrors shall be kept clean, fog, and streak free.
6. CARPET
a) Vacuum Carpet – Common Areas: Carpeted areas of lobbies, conference rooms, hallways, corridors, entrances, including entrance mats are to be thoroughly vacuumed dirt free. Furnishings (chairs, wastebaskets, etc.) are to be moved and returned to their original locations to provide for vacuuming.
b) Vacuum Carpet – Office Areas: Carpeted offices are to be thoroughly vacuumed.
Furnishings (chairs, wastebaskets, etc.) are to be moved and returned to their original locations.
c) Vacuum with Edging Tool – All Corners: Carpet edges and corners where floor and wall intersect, where floor and thresholds meet or around the bases of any object permanently placed on a carpet surface are to be vacuumed with an edging tool. d) Routine Spot Clean Carpet: Carpet is to be kept in a stain-free condition. The Contract Administrator and the Contractor shall agree as to whether carpet shampooing/extraction supersedes spot cleaning.
e) Baseboard Cleaning: Baseboards (wood, vinyl, rubber) shall be kept cleaned with an appropriate product so as not to discolor or scratch.
7. FLOORING – CERAMIC TILE
a) Sweep Ceramic Tile Floors: Ceramic tile flooring shall be swept with a broom so as to leave the floor in a dirt (dust) free state.
b) Damp Mop and Disinfect Ceramic Tile Floors: Ceramic tile floor surfaces shall be damp mopped with a disinfectant.
c) Machine Scrub Ceramic Tile Floors: Ceramic tile floor surfaces shall be machine scrubbed with an effective detergent cleaner and neutralized. Ceramic tile flooring shall be maintained to remove stains, smudges, scuff marks, and dried refuse. d) Baseboard Cleaning: Baseboards (ceramic tile) shall be cleaned with an appropriate product so as not to discolor or scratch.
8. FLOORING – RUBBER/VINYL TILE
a) Sweep Tile Floors: Resilient tile flooring (rubber, vinyl) shall be swept with a broom or dust mopped so as to leave the floor in a dirt (dust) free state. b) Damp Mop Tile Floors: Resilient floor surfaces shall be damp mopped to remove any dirt and all spills. Scuff marks or stains are not expected to be removed with damp mopping. c) Baseboard Cleaning: Baseboards (vinyl, rubber) shall be cleaned with an appropriate product so as not to discolor or scratch.
9. FLOORING – CONCRETE
a) Sweep Concrete Floors: Concrete floors shall be swept with a broom so as to leave the floor in a dirt (dust) free state.
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b) Damp Mop Concrete Floors: Concrete floor surfaces shall be damp mopped to remove any dirt and all spills. Scuff marks or stains are not expected to be removed with damp mopping.
c) Baseboard Cleaning: Baseboards (wood, vinyl, rubber, concrete, steel) shall be cleaned with an appropriate product so as not to discolor or scratch.
10. STAIRS - CONCRETE
a) Sweeping Stairwells: Stairs and landings shall be swept with a broom, dust mopped, or vacuumed so as to leave the treads in a dirt (dust) free state. b) Damp Mop Stairwells: All stairwells and landings will be damp mopped, where applicable.
11. RESTROOM FIXTURES
a) Restocking Dispensers: Restroom dispensers (paper towel, seat covers, toilet paper, soap, etc.) are to be checked daily. Dispensers shall be filled as needed or as directed by the Contract Administrator.
b) Clean Dispensers, Walls, Partition: Clean dispensers, walls, and partitions to be free of soap scum, fingerprints, dirt, smudges, and graffiti.
c) Clean and Disinfect Restroom Fixtures: Clean and disinfect all porcelain and stainlesssteel sinks, faucets, handles, toilets, flush urinals, and urinal partitions to be free of deposits, stains, soap, and odors.
d) Clean and Disinfect Fixture Exteriors: Fixtures (sinks, faucets, toilets, urinals) exteriors, undersides, and bases are to be cleaned and disinfected with an appropriate cleaner so as to remove any deposits which may occur.
e) Clean and Polish Chrome and Stainless Steel: Plumbing fixtures are to be cleaned and polished so as to produce a shiny appearance.
12. SHOWERS
a) Restocking Dispensers: Shower dispensers (paper towels and soap) are to be checked daily. Dispensers shall be filled as needed or as directed by the Contract Administrator. b) Clean and Disinfect Shower Stalls: Shower stalls shall be cleaned and disinfected to be free of deposits, stains, and soap scum. Shower stalls shall be maintained to be mold and mildew free. The Contract Administrator and the Contractor shall agree as to when steam cleaning is needed.
c) Clean and Disinfect Shower Doors/Shower Curtains: Shower doors/curtains shall be cleaned and disinfected to be free of deposits, stains, and soap scum. Shower doors/curtains shall be maintained to be mold and mildew free.
d) Clean and Disinfect Shower Mats: Shower mats shall be cleaned and disinfected to be free of deposits, stains, and soap scum. Shower mats shall be maintained to be mold and mildew free. The Contract Administrator and the Contractor shall agree as to when steam cleaning is needed.
e) Clean and Polish Chrome and Stainless Steel: Plumbing fixtures are to be cleaned and polished so as to produce a shiny appearance.
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EXHIBIT “B”
FEE SCHEDULE
Baseline Cleaning Services Labor Pricing:
Activity Per Hour Cost
Labor, Hourly Rate During Regular Working Hours (M-F 8am – 5pm)
$ 23.50 per hour
Labor, Hourly Rate After Regular Working Hours $ 23.50 per hour Base Services:
Location Monthly Service Charge
1. Public Works Facility – 2240 Jimmy Durante Blvd. $ 432.26 per month
2. 17th Street Public Restrooms – 1700 Coast Blvd $ 23.50 per hour
3. Powerhouse Restrooms – 1648 Coast Blvd. $ 23.50 per hour
4. Civic Center – 1050 Camino del Mar $ 4,714 per month Additional Services (As-Needed):
Additional Window Cleaning Cost per Sq. Ft. $ per job
Additional Carpet Shampooing Cost per Sq. Ft. $ 0.55
Additional/Event Cleanup Services (regular
working hours)
Cost per Hour $ 23.50
Additional/Event Cleanup Services (callbacks for after hours) Cost per Hour $ 25.75 Weekends and Holidays with one (1) hour
response time
Cost per Hour $ 30.00
Carpet Extraction (City Hall/Town Hall) Per Request $ 1,067.00 Window Washing (City Hall/Town Hall) Per Request $ 1,050.00 21 August 10, 2022 Item 05
JANITORIAL SERVICE PROPOSAL
Presented to:
CITY OF DEL MAR
Prepared by:
MSC Janitorial Service, Inc.
8250 Camino Santa Fe, Suite B
San Diego, CA 92121
Presented:
July 20th, 2022
Nolbert Navarro
General Manager
22 August 10, 2022 Item 05
July 20th, 2022
City of Del Mar • Public Works Department
Mr. Tom Romaine
Facilities Supervisor
Jimmy Durante Boulevard
Del Mar, CA 92014
RE: Janitorial Service Proposal – City Hall
Dear Mr. Romaine:
Thank you very much for allowing us to keep on serving you and to present you with a janitorial proposal for City Hall five days a week.
It is a pleasure to introduce our services, after checking our references, I am sure you will find that we are highly recommended, since MSC Janitorial Service, Inc., is concerned with quality workmanship. Our success over the 40 years in the industry is attributed to our commitment to our mission which is to efficiently deliver a wide range of janitorial services to each of our clients and we aim to achieve this by:
Our success over the 40 years in the industry is attributed to several factors:
We give personalized service and immediate attention to any problems that may arise.
We have many studies and bid accuracy so that we can allow our janitors enough time to performed properly.
Our employees are dedicated and our outstanding supervision and management are the keys to good service.
Our prices are competitive and negotiable. We can save your company money, yet give you the quality that you are looking for.
Enclosed is our scope of work, which can be amend or change to cover any special condition.
We are also including our list of references, bond (surety), workers compensation, general liability insurance, license, and federal tax identification numbers on our company.
I look forward to hear from you soon.
Sincerely,
Nolbert Navarro
Chief Operations Officer
23 August 10, 2022 Item 05
GENERAL PROVISIONS
FIRM: MSC JANITORIAL SERVICE, INC.
ADDRESS: 8250 CAMINO SANTA FE, STE. B, SAN DIEGO, CA 92121 PRIMARY CONTACT: NOLBERT NAVARRO
TITLE: GENERAL MANAGER
PHONE: (858) 653-3909 X 302 - (858) 774-0605 (24/7)
E-MAIL: [email protected]
SCOPE OF WORK:
MSC Janitorial Service agrees to provide janitorial services based on Exhibit A at location: City Hall (1050 Camino Del Mar, CA 92014)
TERMS & AGREEMENTS
MSC Janitorial Service agrees to provide adhere to Best Business Practices provided in Exhibit A BILLING
Our terms are Due on Receipt. Invoices are mailed on the 15th of each month and will cover the service for that month. Payment must be received by the 30th of that and each month. In the event account becomes delinquent and is placed with a collection agency or lawyer, customer is liable to pay 1-1/2% per past due month and to pay for collection and/or attorney’s fees if it becomes necessary to file suit to enforce collection. A $35 fee will be charged for all returned checks.
MSC Janitorial Service, Inc., reserves the right to request credit references within the first 30 days of service, contract will be subject to cancelation for breach of contract if required information is not provided.
CHARGES
Total charge for Five Days a week Janitorial Service will be: $4,714.00 per month Total charge for Carpet Extraction Service will be: $1,067.00 per request Total charge for Window Washing Service will be: $1,050.00 per request I acknowledge (1) that I have full authority to sign for and bind the party identified as “Customer” to this contract and (2) that I have read and agree to the terms and conditions on the pages of this document which govern this contract.
Prepared by: _____ ____Nolbert Navarro
Accepted by:
Title:
Firm:
Effective: July 1st, 2022
Agreement must be signed by an authorized representative and emailed to MSC Janitorial [email protected], prior to start work. 24 August 10, 2022 Item 05
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City of Del Mar
Agenda Report
________________________________________________________________________________________________________ City Council Action:
TO: Honorable Mayor and City Councilmembers
FROM: Councilmember Dave Druker and Mayor Dwight Worden, Vice Chair and Alternate Board Member of the Clean Energy Alliance Prepared by Clem Brown, Interim Assistant City Manager
DATE: August 10, 2022
SUBJECT: Del Mar Appointment to the Clean Energy Alliance Community Advisory Committee
REQUESTED ACTION/RECOMMENDATION:
Councilmember Druker and Mayor Worden, as the Vice Chair and Alternate Board Member of the Clean Energy Alliance (CEA), recommend that the City Council appoint Dolores Jamison as the City of Del Mar’s representative to CEA’s Community Advisory Committee for a term through December 31, 2022.
DISCUSSION/ANALYSIS:
The Community Advisory Committee (CAC) was established to advise CEA’s Board of Directors on programs and implementation, and to act as a liaison between the board and the communities in CEA’s service territory. The CAC also serves as a forum for community input from CEA’s member agencies, the cities of Del Mar, Solana Beach, Carlsbad, San Marcos, and Escondido.
The CAC membership consists of two appointees from each CEA member agency and one alternate. CAC committee members serve staggered three-year terms with a two-term limit.
However, in CEA’s inaugural year (2021), one appointee from each member agency serves a two-year term. Members must be residents (property owners or renters) or business owners within the service territory of CEA. Appointment to the CAC is considered for those that have a relevant background in or experience related to one or more of the following fields:
electricity, community outreach or engagement, or policy advocacy.
Due to the resignation of Del Mar resident Al Sweedler from the CAC, there is currently one vacancy for a representative from the City of Del Mar with a remaining term that expires December 31, 2022. The CEA and City staff advertised this vacancy, and three (3) applications (Attachment A) were received during the recruitment period from Dolores Jamison, JP McDermott and Jennifer Anderson. Councilmember Druker and Mayor Worden, the Vice Chair and Board Alternate to CEA, reviewed the applications and recommend that the City Council appoint Dolores Jamison to the CAC for a term through December 31, 2022. 1 August 10, 2022 Item 06
City Council Agenda Report
CEA Community Advisory Committee Appointment
August 10, 2022
If the recommended appointment is approved by the City Council, the applicant will be considered for membership to the CAC by CEA at its next meeting on August 25, 2022 ATTACHMENTS:
Attachment A – City of Del Mar CAC Applications
2 August 10, 2022 Item 06
City of Carlsbad | City of Del Mar | City of Solana Beach Clean Energy Alliance
Community Advisory Committee Application
CAC Purpose & Objectives
The purpose of the CAC is to advise the CEA Board of Directors on those matters concerning the operation of its Community Choice Aggregation (CCA) program as directed by the Board of Directors in an annual workplan for the CAC that is adopted by the Board The objectives of the CAC are to provide feedback to the Board, act as a liaison between the Board and the community and serve as a forum for community input on those matters assigned to the CAC in the annual workplan. The CAC shall not have any decision-making authority but will serve as an advisory body to the Board of Directors.
NAME: ______________________________________________________________________ ADDRE
PHONE __ EMAIL:
Are you a resident/business owner of one of the CEA member cities? If yes, which city: ___________________________________ Please attach a current resume and respond to the following questions. Please attach a separate sheet if additional space is needed.
What experience/perspective will you bring to the committee? __________________________________________________________ __________________________________________________________ __________________________________________________________ __________________________________________________________ __________________________________________________________ __________________________________________________________ DoloresDavies Jamison
Delmar
Del Mar
After approximately 6 years ofservice I
recently stepped down from Delmar's Sustai Advisory nability Committee where I provided regularguidanceandleadership on communications
and community outreach I also directed
communications and community engagement
Attachment A 3 August 10, 2022 Item 06
Clean Energy Alliance CAC
July 16, 2020
2 __________________________________________________________ __________________________________________________________ __________________________________________________________ __________________________________________________________ Describe any relevant background in or expertise related to one or more of the following fields:
electricity, community outreach or engagement, or policy advocacy. __________________________________________________________ __________________________________________________________ __________________________________________________________ __________________________________________________________ __________________________________________________________ __________________________________________________________ __________________________________________________________ __________________________________________________________ __________________________________________________________ __________________________________________________________ Do you have any interests or associations that might present a conflict of interest? If yes, please explain:
__________________________________________________________ __________________________________________________________ __________________________________________________________ __________________________________________________________ __________________________________________________________ __________________________________________________________ __________________________________________________________ __________________________________________________________ __________________________________________________________ __________________________________________________________ efforts for 9
years atthe UCSD
and have more than 20 library years
ofstrategic communications and community outreach
experience at UCSD
Besides myfamiliaritywith cleanenergy and sustainability issues due to myservice
on SAC I promoted UCSD's first
suprogram stainability and wrote articles and
news releases on the university's efforts sustai I wasnability on the SAC when it recommended that the Del Mar
City Council join the CEA
No
Attachment A 4 August 10, 2022 Item 06
Clean Energy Alliance CAC
July 16, 2020
3 What do you hope to accomplish as a member of the Clean Energy Alliance Community Advisory Committee?
__________________________________________________________ __________________________________________________________ __________________________________________________________ __________________________________________________________ __________________________________________________________ __________________________________________________________ __________________________________________________________ __________________________________________________________ __________________________________________________________ __________________________________________________________ Please provide three references
Name Phone Number Relationship
By signing below I acknowledge that I have sufficient time to actively participate in the Clean Energy Alliance Community Advisory Committee for the benefit of the program and the communities it serves. I understand that committee members are subject to conflict of interest laws and required to disclose potential conflicts by filing Form 700.
Signature: __ ______
Date: _____________________________________________________ Completed applications should be emailed to: [email protected] In collaboration with other committee
members I hope to provide excellent
thoughtful andwhenneeded strategic guidanceto theCEA Board an community outreach and communications needs
Dave Druker height
Don Mosier
July 23 2022
Attachment A 5 August 10, 2022 Item 06
DOLORES DAVIES JAMISON
PROFILE
A seasoned communications and engagement professional with more than 25 years of experience in strategic communications and community engagement, including media relations and outreach, creative event planning, speechwriting, issues management, publications development, and social media strategy. After retiring from UC San Diego in 2017, I have worked as a freelance writer and editor and volunteered with a variety of environmental organizations, including Del Mar’s Sustainability Advisory Committee.
DIRECTOR OF COMMUNICATIONS & ENGAGEMENT; UC SAN DIEGO LIBRARY, SAN DIEGO, CA —2008-2017
As the Library’s first director of communications and engagement, I was charged with launching a comprehensive communications and outreach program for the Library. In that capacity, I initiated a new UCSD Library program on UCTV; Led a team of professionals in planning and executing a series of compelling community events; Guided a social media team in effectively engaging patrons and supporters; Oversaw the development of an online newsletter to communicate to target audiences; Provided speechwriting services to the University Librarian; handled media inquiries and provided guidance to Library leadership on sensitive issues; Worked with University Publications in developing a new brand for the Library; Managed and provided guidance to communications and outreach staff.
EXECUTIVE DIRECTOR; UNIVERSITY COMMUNICATIONS & PUBLIC AFFAIRS; UC SAN DIEGO, SAN DIEGO, CA—2004-2008
As the executive director for the University’s Communications & Public Affairs Office, I played a leadership role in guiding, developing, and implementing a wide range of communications and outreach efforts to promote university research, university programs, and staff and student activities. I also provided counsel to the university leadership on sensitive issues and offered strategic guidance on branding, sustainability, and media and governmental relations. In this role, I also helped to oversee the development and publication of the university’s annual report and interfaced with members of the news media and the local community on university issues.
ACTING ASSOCIATE VICE CHANCELLOR; UNIVERSITY COMMUNICATIONS & PUBLIC AFFAIRS, UC SAN DIEGO, SAN DIEGO, CA — 2003
Played a leadership role in representing UCPA with campus leadership; Provided campus leaders with essential and strategic guidance on a broad range of campus issues; Helped plan and implement significant campus events; Provided speechwriting services to campus leaders; Directed campus branding and external positioning to effectively represent the university; Oversaw the work of multiple professional and administrative staff members.
EDUCATION
UNIVERSITY OF CALIFORNIA, LOS ANGELES, B.A. IN POLITICAL SCIENCE
OTHER WORK EXPERIENCE
More than six years of service on the City of Del Mar’s Sustainability Advisory Committee; longtime member of the Del Mar Garden Club; Volunteer and support efforts with various Attachment A 6 August 10, 2022 Item 06
environmental organizations, including the North County Climate Change Alliance, the Green Infrastructure Consortium and Citizens’ Climate Lobby.
Attachment A 7 August 10, 2022 Item 06
City of Carlsbad | City of Del Mar | City of Solana Beach Clean Energy Alliance
Community Advisory Committee Application
CAC Purpose & Objectives
The purpose of the CAC is to advise the CEA Board of Directors on those matters concerning the operation of its Community Choice Aggregation (CCA) program as directed by the Board of Directors in an annual workplan for the CAC that is adopted by the Board The objectives of the CAC are to provide feedback to the Board, act as a liaison between the Board and the community and serve as a forum for community input on those matters assigned to the CAC in the annual workplan. The CAC shall not have any decision-making authority but will serve as an advisory body to the Board of Directors.
NAME: ______________________________________________________________________ ADDRESS __________________________________
PHONE: _________ EMAIL _______
Are you a resident/business owner of one of the CEA member cities? If yes, which city: ___________________________________ Please attach a current resume and respond to the following questions. Please attach a separate sheet if additional space is needed.
What experience/perspective will you bring to the committee? __________________________________________________________ __________________________________________________________ __________________________________________________________ __________________________________________________________ __________________________________________________________ __________________________________________________________ Attachment A
James (JP) McDermott Del Mar 4 years on Contra Costa County Transportation Authority Citizens Advisory Commitee 4 years as Commisioner on Danville Arts Commission 7 Years Active Board Member of Junior Achievement of NorCal 27 years Junior Achievement classroom volunteer personal finance 5 years Board Member St. Mary's College Alumni Association Please see attached Biography - Recently relocated back to Del Mar in 2019 for good! 8 August 10, 2022 Item 06
Clean Energy Alliance CAC
July 16, 2020
2 __________________________________________________________ __________________________________________________________ __________________________________________________________ __________________________________________________________ Describe any relevant background in or expertise related to one or more of the following fields:
electricity, community outreach or engagement, or policy advocacy. __________________________________________________________ __________________________________________________________ __________________________________________________________ __________________________________________________________ __________________________________________________________ __________________________________________________________ __________________________________________________________ __________________________________________________________ __________________________________________________________ __________________________________________________________ Do you have any interests or associations that might present a conflict of interest? If yes, please explain:
__________________________________________________________ __________________________________________________________ __________________________________________________________ __________________________________________________________ __________________________________________________________ __________________________________________________________ __________________________________________________________ __________________________________________________________ __________________________________________________________ __________________________________________________________ Attachment A
Education: BA UCSD, MBA Finance St. Mary's College, Chartered Financial Consultant, The American College Certified Financial Planner Curriculum - The American College 20 years in telecommunications (AT&T, Pacific Bell, SBC) in various roles including regional vice president of 9-1-1 Public Safety Solutions for Callifornia - worked with major public safety organizations in the state. Volunteer in classroom for elementary and high school personal finance courses None 9 August 10, 2022 Item 06
Clean Energy Alliance CAC
July 16, 2020
3 What do you hope to accomplish as a member of the Clean Energy Alliance Community Advisory Committee?
__________________________________________________________ __________________________________________________________ __________________________________________________________ __________________________________________________________ __________________________________________________________ __________________________________________________________ __________________________________________________________ __________________________________________________________ __________________________________________________________ __________________________________________________________ Please provide three references
Name Phone Number Relationship
By signing below I acknowledge that I have sufficient time to actively participate in the Clean Energy Alliance Community Advisory Committee for the benefit of the program and the communities it serves. I understand that committee members are subject to conflict of interest laws and required to disclose potential conflicts by filing Form 700.
Signature: _ ______________________
Date: _____________________________________________________ Completed applications should be emailed to: [email protected] Attachment A
Most of my career has been educating people so they might make smarter decisions. I hope to continue to educate, support and advocate a citizen's perspective to the board Ernie Hahn Friend/Neighbor Mike Anchieris Friend/Neighbor Carolyne Charvoz Partner 07/29/2022 10 August 10, 2022 Item 06
JP's financial planning practice focuses on serving entrepreneurs and small business owners. He helps them attract and retain top talent using executive bonus plans and helps them plan for a comfortable retirement while leaving a legacy for their families.
JP McDermott is not just another Financial Advisor. JP cares about his clients’ welfare and takes the time to get to know their unique financial goals, their dreams and roadblocks that may be preventing their achievement.
With an MBA in Finance and 20+ years’ experience with corporate leaders like AT&T and SBC, JP also brings business, leadership and management experience to his clients, helping them make sound financial decisions.
JP chose to affiliate with MassMutual, a leading financial services company with more than 170 years of financial strength and customer service. JP believes in a team approach for complex estate planning and has affiliated with proven experts in Banking, Accounting, Law and Real Estate to provide his clients with access to the services they may require.
When JP is not helping business owners protect and grow their assets, he enjoys time with his family. He volunteers for several civic, community and non-profit organizations: past board member of St. Mary’s College Alumni Association, St. Mary’s Graduate Business Alumni Council, and Danville representative to the Contra Costa Transportation Authority, past Board member and current classroom volunteer with Junior Achievement of Northern California, past Board member and Chair of Diablo Theatre Company. He enjoys surfing, ocean swimming, and mountain biking.
He and his wife Candy have recently relocated back to Del Mar, California where he continues his practice with his partner in Walnut Creek.
Attachment A 11 August 10, 2022 Item 06
From: JP McDermott
Sent: Monday, August 1, 2022 9:53 AM
To: [email protected]
Subject: Additional References
Greetings -
Upon reflection, I am adding these references to my application as they can attest to my service for the Town of Danville and County Transportation Authority.
Renee Morgan, Danville Town Council Member
Robert Storer, Vice Mayor Danville Town Council
Candace Anderson, Supervisor Contra Costa County
--
Thanks!
JP McDermott
Attachment A 12 August 10, 2022 Item 06
City of Carlsbad | City of Del Mar | City of Solana Beach Clean Energy Alliance
Community Advisory Committee Application
CAC Purpose & Objectives
The purpose of the CAC is to advise the CEA Board of Directors on those matters concerning the operation of its Community Choice Aggregation (CCA) program as directed by the Board of Directors in an annual workplan for the CAC that is adopted by the Board The objectives of the CAC are to provide feedback to the Board, act as a liaison between the Board and the community and serve as a forum for community input on those matters assigned to the CAC in the annual workplan. The CAC shall not have any decision-making authority but will serve as an advisory body to the Board of Directors.
NAME: ______________________________________________________________________ ADDRESS: _____________________________________________
PHONE: ___________ EMAIL: __
Are you a resident/business owner of one of the CEA member cities? If yes, which city: ___________________________________ Please attach a current resume and respond to the following questions. Please attach a separate sheet if additional space is needed.
What experience/perspective will you bring to the committee? __________________________________________________________ __________________________________________________________ __________________________________________________________ __________________________________________________________ __________________________________________________________ __________________________________________________________ Attachment A
Jennifer Anderson Del Mar I bring my experience and perspective from 30 years in technology marketing. My experience spans partner and customer outreach and engagement, digital marketing, training, events and communications. Currently, I work in Global Partner Marketing for Intel where I oversee an $45M annual co-marketing budget and work to engage and influence key technology partners to align on strategic priorities and work together to develop and execute effective co-marketing strategies and campaigns to drive sales and brand preference, I also bring a passion for the environment and finding solutions for our climate challenges. In October 2021, I completed the Climate Reality Leadership Project's Climate Reality Leadership training. I am new to (and excited to be part of) the Del Mar and the North County area. 13 August 10, 2022 Item 06
Clean Energy Alliance CAC
July 16, 2020
2 __________________________________________________________ __________________________________________________________ __________________________________________________________ __________________________________________________________ Describe any relevant background in or expertise related to one or more of the following fields:
electricity, community outreach or engagement, or policy advocacy. __________________________________________________________ __________________________________________________________ __________________________________________________________ __________________________________________________________ __________________________________________________________ __________________________________________________________ __________________________________________________________ __________________________________________________________ __________________________________________________________ __________________________________________________________ Do you have any interests or associations that might present a conflict of interest? If yes, please explain:
__________________________________________________________ __________________________________________________________ __________________________________________________________ __________________________________________________________ __________________________________________________________ __________________________________________________________ __________________________________________________________ __________________________________________________________ __________________________________________________________ __________________________________________________________ Attachment A
Throughout my career I have developed and managed community outreach and engagement strategies and programs targeted towards both existing and prospective customer and technology partner audiences.With the approach typically being to engage, educate and incent the respective audiences towards action whether it be a purchase or activating the partner to adopt and/or sell Intel technologies. I have worked across both digital and in real life outreach and engagement strategies. No, I don't have any interests or associations that might present a conflict of interest. 14 August 10, 2022 Item 06
Clean Energy Alliance CAC
July 16, 2020
3 What do you hope to accomplish as a member of the Clean Energy Alliance Community Advisory Committee?
__________________________________________________________ __________________________________________________________ __________________________________________________________ __________________________________________________________ __________________________________________________________ __________________________________________________________ __________________________________________________________ __________________________________________________________ __________________________________________________________ __________________________________________________________ Please provide three references
Name Phone Number Relationship
By signing below I acknowledge that I have sufficient time to actively participate in the Clean Energy Alliance Community Advisory Committee for the benefit of the program and the communities it serves. I understand that committee members are subject to conflict of interest laws and required to disclose potential conflicts by filing Form 700.
Signature: _________________________________________________ Date: _____________________________________________________ Completed applications should be emailed to: [email protected] Attachment A
I hope to help accelerate the adoption of clean renewable energy within Del Mar and North County so that our communities can meet or exceed our Climate Action Plan targets for reducing greenhouse gas emissions. In addition, I also would like to help drive the success of CEA’s additional programs including vehicle electrification and programs to assist disadvantaged communities. Rich Bokal Architect in Del Mar Kathy Graham Neighbor in Del Mar Christine Dickinson College Friend in San Diego 7/26/2022 Jennifer Lynn Anderson 15 August 10, 2022 Item 06
JENNIFER L. ANDERSON
PROFESSIONAL SUMMARY
Versatile and results-oriented marketing professional with demonstrated results leading teams, building relationships and driving collaboration across all organizational levels, functions and geographies to champion and drive marketing strategies, programs, events and partnerships that deliver measurable business results.
EXPERIENCE
Global Partner Marketing Manager Intel Corporation 5/2019 - Present Oversee an annual co-marketing budget of more than $45M. Engage and influence key technology partners to align on strategic priorities and work together to develop and execute effective co-marketing strategies and campaigns to drive sales and brand preference,
Marketing Manager, North America Training & Events Intel Corporation 6/2014 – 5/2019 Lead the successful planning, execution and measurement of B2B and B2C events to drive Intel business results and impact measurable objectives around both demand and brand. Responsibilities include defining event strategy, metrics, customer experience and plan of record; establishing core team roles and responsibilities; managing team of cross-organizational internal people, suppliers, vendors and selling partners in the end to end process of planning and delivering the event experience and outcomes needed; managing and tracking event budget and metrics and leading executive reviews of event strategy, status, metrics and post-event debrief.
Event Marketing Strategy & Management
• Lead teams in the end-to-end planning, execution and measurement of B2B events to deepen relationships and increase revenue with executives at existing and new prospective customers. Events supported to further objectives of SMG marketing campaigns and account-based marketing programs include AT&T Executive Business Summit, Digital Signage Expo, NRF, Connected Health Conference and Verizon Tech Pulse.
• Core team member of Intel Solutions Summit/Intel Partner Connect event team for the past three years. Lead and managed team of BU and SMG people in the development and execution of the solutions showcase and all breakout sessions. In 2017, delivered 62 unique breakout sessions with a 96% overall attendee satisfaction rate and 111 technology demos with a 97% attendee satisfaction rate.
• Lead teams in conceptualizing and delivering interactive, high-energy, immersive brand experiences and messaging at large gaming and eSports events including TwitchCon, PAX East, PAX West, PAX South, BlizzCon and Intel Extreme Masters to engage our critical gaming audience and drive processor relevance, Intel processor preference, brand impact and sales conversions through to both on-site and online retail partnerships (eg. Amazon.com, Newegg.com). Developed strategy and integrated tactics including influencers (pro-gamers, Twitch streamers, technology influencers, cosplay), social media, retail partners and offers, immersive gaming and live streaming experiences to achieve event objectives. Consistently delivered an uplift in brand metrics along with a 13.3x ROI on PAX East 2017 and a ROI on 10.75xTwitchCon 2017.
Sales Partner Training & Enablement
Develop and manage the delivery and results of online and face-to-face training programs for executives and sales teams at Intel selling partners including Intel Technology Providers, distributors, NSPs, ISVs, VARs and OEM call centers to accelerate the transition to new Intel technologies, enable our partners to become Intel advocates and trusted advisors to their customers and help our partners grow their business.
• Form and lead a team of BU subject matter experts and SMG sales to define the overall breakout agenda and develop and deliver 40-60 breakout sessions each year to engage, educate and activate Intel’s top external selling partners at Intel’s annual partner sales conference.
• Manage all aspects of Intel Virtual Technology Conference, a full-day virtual conference of 30 online training courses, 7 live demos and 20 virtual exhibitors for Intel Technology Provider partners drawing 2,000 virtual attendees who participate for an average of 5 hours per conference twice each year.
• Develop and deliver face-to-face training for OEM call center partners at HP, Lenovo and Dell Digital Marketing Specialist Global Marketing & Communications, Intel 8/2012 – 6/2014 Lead and manage the development and execution of online sales enablement campaigns designed to educate, enable and incent Intel Technology Provider partners worldwide on the latest Intel products, technologies and solutions and how to leverage them to deliver new customer solutions and win new business. Identify geo requirements and enable worldwide adoption. Conducted focus groups to gather partner input on effectiveness of training and enablement campaigns and to identify insights on how to continue to optimize.
Deliver quarterly metrics review with WW stakeholders to identify key learnings and opportunities for continuous optimization. • Increased unique visitors to 4th Gen Quad launch online training and enablement content by 245% over 3rd Gen launch • Delivered sales enablement campaigns that had the highest level of engagement of all Intel B2B web content in 2013 Channel Marketing Manager North America Reseller Sales Organization, Xerox 1/2009 – 8/2012 Develop messaging, programs, training, sales tools, incentives and promotions that educate, enable and incent Xerox reseller partners to drive and win new Xerox business and grow sales revenue. Research, identify and evaluate marketplace trends and technologies in mobile, security and electronic document management to identify opportunities and requirements for Xerox indirect channels. Develop and manage launch and marketing plans for Xerox independent software vendor partner solutions in the categories of mobile, security and electronic document workflow. Deliver vertical and horizontal solutions-oriented programs and initiatives to position and differentiate Xerox Attachment A 16 August 10, 2022 Item 06
independent software vendor solutions to meet key customer business needs. Developed quarterly promotions to drive sell-through in Federal and Education segments.
• Grew software sales revenue year over year (172% in 2009, 6% in 2010, 85% in 2011) • Managed launch of Xerox Mobile Print Solution and Xerox Financial Services Leasing Program to partners • Conducted surveys to identify partner attitudes, experience and priorities surrounding Xerox software solutions Marketing Manager, Online Retail Channel North America Reseller Sales Organization, Xerox 9/2007 – 1/2009 Developed and managed online merchandising and marketing programs to drive e-commerce sales of Xerox printers and multifunction printers through the online retail channel. Managed marketing relationships with online retail partners including Amazon.com, Costco.com, Staples.com, Newegg.com, Officemax.com and Officedepot.com. Worked closely with buyers, product managers, category managers and merchandising managers at online retail partners to develop co-marketing and online advertising plans to meet sales and ROI goals for the Xerox online retail channel. Communicated merchandising plans and sales forecasts to product planning teams, distributors and other internal stakeholders to coordinate inventory requirements. Continuously measured, analyzed and reported on e-commerce sales revenue and online marketing program results to test and optimize performance on an ongoing basis to ensure inventory revenue growth goals were met.
• Managed $2.8M online retail marketing budget and drove $16M in sales revenue through online retail channel in 2008 • Increased unit sales through online retail channel by 35% YOY and equipment sales revenue by 25% YOY, despite challenging economic environment, declining prices and flat growth in the printer market Web Marketing Manager Xerox Corporation (Contract) 4/2006 – 9/2007 Researched and profiled business needs and buying behavior of small and medium-size businesses through secondary research sources (Forrester, IDC, Jupiter, NPD) and managed an outside research firm in the development and execution of a primary research study. Measured and profiled Xerox.com site visitor behavior through the analysis of website traffic, action conversions and the development of website polls and questionnaires. Developed and executed online marketing plan to build awareness, drive traffic and create a preference for Xerox among SMB principals. Developed and managed SMB web content, promotions and PPC program to deliver increased SMB traffic, website actions and revenue generation. Served as "trusted advisor" to the corporate SMB team and managed projects from concept to completion by developing and managing internal teams and coordinating internal staff and resources. Measured and monitored results of programs in order to continue to improve marketing strategies and programs. Presented monthly report of findings and program results to executive sponsor. • Increased traffic to SMB site by 297% and action conversion rate by 337% YOY in 2006 • Increased online inquiries year-over-year from the SMB site by 223% in 2006 Internet Marketing Manager Inspiration Software, Inc. 5/2005 – 2/2006 Managed corporate website and online marketing programs for industry leading developer of visual learning software for K12 schools and districts worldwide. Developed and executed demand generation programs and supported sales channels in driving revenue and managing existing accounts by developing email marketing programs, special offers and promotions and online sales tools. • Selected and implemented email marketing tool and processes to track and optimize ROI of email marketing programs • Established HTML-based email newsletters that achieved 24-54% open rates and 5-10% click-thru rates • Delivered promo resulting in $900K+ in online price quotes within 3 mos from new customer segment and 33% ROI within first year • Identified and implemented database and website enhancements to better segment customers and prospective customers to enable more relevant, effective and cost-effective targeting Marketing Manager Northwest Analytics 1/2003 – 4/2005
Served as a member of the corporate operations team. Developed and implemented marketing and communications strategies and programs for a developer of manufacturing process analytics (statistical process control) software to generate demand and increase customer penetration among IT directors at Fortune 1,000 manufacturing companies. Lead cross-functional teams in the development and execution of all marketing and communications programs including product launches, public relations, email marketing, special offers and promotions, website strategy, events, direct marketing, print and online advertising, telemarketing and sales tools. Managed internal relationships with sales and product development teams and external relationships with Internet, advertising and public relations agencies to successfully manage programs from concept to completion. Developed training and sales tools to support worldwide channel in effectively representing the company’s software solutions. • Increased unique visitors to the website by over 100% and trial software requests by 78% in 2003 over 2002 • Doubled email newsletter subscribers in 2003 over 2002 Web Marketing Manager RadiSys 1/2000 – 6/2002
Developed and managed execution of strategy, budget, design and development of corporate Internet site and online marketing programs for $340 million developer and manufacturer of custom Intel architecture-based communications and embedded computer systems. Created web marketing plan and developed programs and strategies to help build awareness for RadiSys new Intel-based technologies and how they could be used by engineering managers and design managers at OEM companies to create a competitive advantage in their equipment design and get to market faster. Generated leads and identified new equipment design projects (from engineering managers and design managers at OEM companies worldwide) as early as possible in the design process that would generate $1 million or more in revenue per year. Initiated and developed strategic marketing relationships with providers of complimentary technologies at companies including Intel, Texas Instruments, MontaVista Software and Teja Technologies to jointly identify and develop co-marketing opportunities. Interfaced with internal department managers across all divisions, organizations, and geographic regions to interpret strategies for new products and technologies in order to develop promotional programs, relevant site messaging and content strategies to create a valuable experience for site visitors and to achieve strategic marketing objectives. Developed programs to drive site traffic and repeat visitors. Managed outside agencies and vendors on all aspects of strategy execution, including concept development, design and implementation. Developed and executed technology solutions webinar series. Developed web-based sales training and related sales tool for distributor partners. Established processes and developed metrics to measure success of online marketing programs; selected and implemented traffic analysis software (WebTrends) and various site Attachment A 17 August 10, 2022 Item 06
registration and lead capture mechanisms.
• Produced online technology seminar series to generate qualified leads and build awareness and consideration early in the design cycle; resulted in over 3,500 new registrants in 2000 and almost 6,000 in 2001. More than 40% of new contacts were qualified as prospective customers from target accounts
• Increased unique visitors per day to the site by 30% YOY and site conversion rate by 41% • Grew newsletter subscribers (from prospective customers vs. existing customers) by 40% in one year • Identified and negotiated co-marketing opportunities and 45% of program funding for online seminar program from partners including Intel, Texas Instruments, MontaVista software and Teja Technologies Assistant to the CEO/Chairman & Investor Relations RadiSys 2/1998 – 1/2000 Worked closely with CEO/Chairman of $340 million developer of Intel architecture-based communications and embedded systems to research and profile competitors and potential acquisition candidates. Supported CEO throughout all phases of acquisition process from research to due diligence to integration in the acquisition of three technology companies in two years, including IBM’s Open Computing Platform operation, IBM’s ARTIC Communications Adapter Development operation and Texas Micro. Planned board meetings and prepared board materials. Managed special events including quarterly worldwide company business update meetings “BUMs”, shareholder meetings and board meetings. Managed special projects including “Best in Class” process improvement program, competitive update and corporate culture class. Identified new programs to constantly improve internal corporate communications and corporate culture. Worked with CFO to implement investor relations program, manage investor relations website and prepare financial reports, financial releases, analyst conference calls and investor kits. Served as first point of contact for investor inquiries. • Researched and profiled potential acquisition candidates (sources included company financials, Dun and Bradstreet, Hoovers) • Interfaced daily with executives, board and financial community regarding matters requiring a high degree of discretion and confidentiality • Developed, researched and wrote an enewsletter to update executive team, sales and marketing management on competitor activities Marketing Communications/PR Assistant RadiSys 11/1996 – 2/1998 Implemented all facets of media relations program. Researched target publications and editors, developed media kits, directed photo shoots and scheduled and planned press tours for editors and industry analysts. Coordinated all aspects of 12 U.S. and European Real-Time Computing shows, the Digital Signal Processing show, the Embedded Systems show, the ISA Expo and Pioneer-Standard and Arrow Electronics distributor sales conferences. Edited and produced communications materials including datasheets, catalogs, newsletter and press article reprints. Managed business relationships with news wire, press clipping service and literature fulfillment, premiums and print vendors.
Marketing Communications Specialist H.B. Fuller Company 7/1994 – 11/1996 Worked closely with marketing manager to develop marketing and communications plan for Fortune 500 specialty chemical manufacturer. Wrote and prepared press releases, PowerPoint sales presentations, direct mail promotions and employee newsletter.
Managed tradeshows, photo shoots and video production.
• Increased 1995 sales leads by over 100% via significant increase in editorial coverage • Awarded “Most Professional Exhibit” at key industry tradeshow in 1996
EDUCATION & AFFILIATIONS
Education Affiliations
MBA – University of Portland Social Venture Partners of Portland, 2011 Investment Committee BS, Communications – Oregon State University American Marketing Assoc., 2004-2006 Oregon Board Member Managing Websites Certificate – Portland State University American Marketing Assoc., 2005-2006 Membership Chair NICSA Student Exchange Program – Cologne, Germany The Link, 2014-Present Ambassador Board Unleash the Power Within, Tony Robbins – San Jose, CA
Climate Reality Leadership Training, The Climate Reality Project Attachment A 18 August 10, 2022 Item 06
City of Del Mar
Agenda Report
________________________________________________________________________________________________________ City Council Action:
TO: Honorable Mayor and City Councilmembers
FROM: Councilmember Dave Druker and Mayor Dwight Worden, Vice Chair and Alternate Board Member of the Clean Energy Alliance Board Prepared by Clem Brown, Interim Assistant City Manager
DATE: August 10, 2022
SUBJECT: First Amendment to the Clean Energy Alliance Joint Powers Agreement REQUESTED ACTION/RECOMMENDATION:
Councilmember Druker and Mayor Worden, as the Vice Chair and Alternate Board Member of the Clean Energy Alliance (CEA) Board, recommend that the City Council approve the First Amendment (Attachment A) to the CEA Joint Powers Agreement (JPA) that officially recognizes the addition of the cities of Oceanside and Vista as member agencies, and authorize the City Manager to execute the First Amendment.
DISCUSSION/ANALYSIS:
On July 28, 2022, the CEA Board of Directors approved Resolution 2022-04 authorizing the cities of Oceanside and Vista to become parties to the JPA and member agencies of CEA.
The staff report and associated analysis supporting the expansion of CEA into the cities of Oceanside and Vista is included as Attachment B. In summary, CEA staff concluded that expansion into the cities of Oceanside and Vista would have a positive financial impact on the CEA.
The JPA details the process for adding new member agencies, which includes the requirement to amend the agreement to reflect new membership. With the adoption of Resolution 2022-04, the CEA Board will consider the First Amendment to the JPA at their August 25, 2022, meeting to reflect the addition of Oceanside and Vista. The JPA stipulates that the current member agencies be provided 30 days written notice and a copy of a proposed amendment. CEA’s Chief Executive Officer provided the written notice and the proposed amendment to the City of Del Mar on July 25, 2022 (Attachment C).
CEA has requested its member agencies approve and sign the First Amendment in advance of its August 25, 2022, meeting so that if the amendment is approved by the CEA Board of Directors, the new board members from Oceanside of Vista can be appointed immediately.
As such, Councilmember Druker and Mayor Worden, the Vice Chair and Board Alternate of the CEA Board, recommend that the City Council approve the First Amendment and authorize the City Manager to execute it in advance of CEA’s next meeting. 1 August 10, 2022 Item 07
City Council Agenda Report
First Amendment to CEA Joint Powers Agreement
August 10, 2022