(213) 576-6927 Direct
(213) 576-6942 Fax
Department of Real Estate
320 W. 4th Street, Suite 350
Los Angeles, CA 90013
[email protected]
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Exhibit 4
LCP-3-CML-23-0022-1-Part B
EXHIBIT B
Exhibit 4
LCP-3-CML-23-0022-1-Part B
2310 East Ponderosa Drive - Suite 25
Camarillo, California 93010-4747
voice 805.987.3468 - fax 805.482.9834
www.bwslaw.com
Cell No.: 805.377.3565
[email protected]
Los Angeles – Inland Empire – Marin County – Oakland – Orange County – Palm Desert – San Diego – San Francisco – Silicon Valley – Ventura County April 7, 2022
VIA E-MAIL TO
[email protected] and
[email protected]
Patrick Abell
Senior Legal Counsel
Pacaso, Inc.
2021 Fillmore St. Suite 183
San Francisco, CA 94115
Ellen Haberle, Director
Government & Industry Relations
Pacaso, Inc.
2021 Fillmore St. Suite 183
San Francisco, CA 94115
Re: Request to Immediately Cease and Desist Unlawful Operations Dear Mr. Abell and Ms. Haberle:
This law firm serves as City Attorney for the City of Carmel-by-the Sea, California (“City”). In that capacity, we are writing to advise Pacaso Inc. (“Pacaso”) that Pacaso’s current operations within the City are unlawful and must cease immediately. The City has been made aware of at least one property sold by Pacaso within the City at Dolores 7 SW 13th, Carmel by-the-Sea, CA 93921. The sale of this property constitutes the sale of a timeshare prohibited by the Carmel-by-the-Sea Municipal Code (“CMC”) Section
17.28.010.
City Prohibition on Timeshare Uses
CMC section 17.28.010 provides that “[t]imeshare projects, programs and occupancies are prohibited uses within all of the zoning districts within the City.” Timeshare projects, programs and occupancies are further defined in CMC Section 17.70.020:
Exhibit 4
LCP-3-CML-23-0022-1-Part B
Patrick Abell
Ellen Haberle
Pacaso, Inc.
April 7, 2022
A “time-share program” is “[a]ny arrangement for a project whereby the use, occupancy, or possession of real property has been made subject to a timeshare estate, use, or occupancy, whereby such use, occupancy, or possession circulates among purchasers of the time-share intervals according to a fixed or floating time schedule on a periodic basis for a specific period of time during any given year, but not necessarily for consecutive years.”
A “time share estate” is defined as “[a] right of occupancy in a time-share project that is coupled with an estate in the real property.
A “time-share use” is “a license or contractual or membership right of occupancy in a time-share project which is not coupled with an estate in the real property.” A “time-share project” is “[a] project in which a purchaser receives the right in perpetuity, for life, or for a term of years, to the recurrent, exclusive use or occupancy of a lot, parcel, unit, or segment of real property, annually or on some other periodic basis, for a period of time that has been or will be allotted for the use or occupancy periods into which the project has been divided. A “project” specifically includes “[a]ny proposal for a new or changed use.” Pacaso’s Business Involves the Sale and Management of Prohibited Timeshare Uses
Pacaso’s website indicates that its business model involves sales of property held by an limited liability company in 1/8 ownership shares, with the associated right to exclusive use of the subject property by the owner of the share, with Pacaso managing among other things, the upkeep of the property and providing an app to arrange for periods of exclusive use by the share owners. Pacaso’s website further states that each owner of a 1/8 share is entitled to 6 “general stays,” booked at least 61 days in advance, which may range between 2 to 14 nights, and unlimited “short notice stays” booked less than 60 days in advance. However, maximum stay length is limited to 14 nights regardless of the method of booking. Owners of two shares have the option to book stays up to 28 nights.
Pacaso’s business model meets the City’s Ordinance’s definition of a prohibited “timeshare program,” because the ownership of the property through the LLC is an “arrangement for a project whereby the use, occupancy, or possession of real property Exhibit 4
LCP-3-CML-23-0022-1-Part B
Patrick Abell
Ellen Haberle
Pacaso, Inc.
April 7, 2022
has been made subject to a time-share estate, use, or occupancy,” and rights to periods of exclusive use are circulated among the owners of the shares, in specific intervals up to 14 nights per 1/8 share, “according to a … floating schedule on a periodic basis for a specific period of time during any given year.” Additionally, division of the property into fractionalized ownership under Pacaso’s business model will create either a “time-share estate” or “time-share use” — either the owners of the shares of the LLC hold a “right of occupancy” and “an estate in the real property” which establishes a time-share estate, or if the LLC is deemed the sole holder of the “estate in the real property,” then such owners have a “time-share use” because they will hold a right to determine and establish their rights of occupancy pursuant to their right to operate and control the LLC under the terms of any membership or operating agreements.
We are aware that Pacaso has asserted to other jurisdictions that the properties that they sell and manage are not timeshares, but rather “fractionalized ownerships.” According to Pacaso, a Pacaso home is no different from any other single family residence. However, this is simply not true. Regardless of what Pacaso wants to calls its business model, the impact is the same — this type of commercially managed short-term vacation use has the same impacts on surrounding residential areas as short-term vacation rentals, which are generally prohibited by the City’s municipal code. (See CMC Sections 17.08.040, 17.68.030; 17.28.040.) The frequent, rotating occupancy of the owners is functionally akin to short-term rentals, and the City’s existing regulations on timeshare uses are specifically intended to minimize the impacts created by this type of use and occupancy of land. Similar prohibitions on short-term rotating occupancies have already found lawful under Ewing v. City of Carmel-by-the-Sea (1991) 234 Cal.App.3d 1579, which found that the City could lawfully prohibit short-term rental of residential property for transient occupancy in residential neighborhoods as an incompatible “commercial” use.
Finally, several significant policy reasons justify the City’s prohibition against timeshares. The City’s prohibitions on timeshares were first adopted in 1988 in order to preserve housing stock. The Housing Element of the City’s General Plan includes Goal G3-2, which is to “[p]reserve existing residential units and encourage the development of new multifamily housing in the Commercial and R-4 Districts.” Furthermore, Goal G3-4 specifically requires that the City “[p]rotect the stability of residential neighborhoods by promoting year-round occupancy and neighborhood enhancement.” As part of this goal, the City has committed to “maintain and encourage the expansion of permanent residential housing stock,” because the Housing Element notes that “[a] substantial percentage of the City's housing stock lies vacant much of the Exhibit 4
LCP-3-CML-23-0022-1-Part B
Patrick Abell
Ellen Haberle
Pacaso, Inc.
April 7, 2022
year as second homes occupied for weekends, vacations or on a seasonable basis” which “has the effect of reducing the number of permanent, year-round residents in the City.” To avoid depletion of residents and associated impacts on community, City services, Goal G3-4 of the City’s Housing Element specifically requires the enforcement of the prohibitions on short-term, transient rentals and timeshares in residential dwellings.
In sum, conversion of any existing housing stock into timeshares or “fractionalized ownerships” reduces the available supply of homes for occupation for full-time residency, and therefore reduces the affordability of housing in the City, based on basic laws of supply and demand.
Pacaso is Unlawfully Operating Without Required Business Licenses Pursuant to CMC section 5.04.020, it is unlawful for any person employed by Pacaso to commence or carry on any kind of business in the City without first procuring a business license and pay the applicable business license tax. (CMC section 5.04.020.) Pacaso does not possess a City business license, nor has it paid any business license tax to the City. As a result, Pacaso’s operations within the City also are in conflict with the City’s business license ordinance. However, we note that even if Pacaso obtains a business license, the business may not operate in the manner described above due to the prohibitions in the City’s Municipal Code regarding timeshares.
Request to Cease Unlawful Operation
In conclusion, Pacaso’s current operations within the City are unlawful and must cease immediately. The City requests that Pacaso cease all advertising and sale of fractional ownership of residential properties within the City. Failure to comply may result in enforcement. Any violation of City zoning prohibitions is subject to administrative citation and imposition of new fines for each day of unlawful operation pursuant to CMC Chapter 18.04. Furthermore, any violation of CMC section 17.28.010 prohibiting timeshare uses is a misdemeanor subject to criminal prosecution, punishable by a fine not exceeding $1,000 and imprisonment for a term not exceeding a period of six months. (CMC 1.16.010, 17.66.040.)
We are requesting your written response to this letter by April 21, 2022 which you may submit to me via email to [email protected]
Exhibit 4
LCP-3-CML-23-0022-1-Part B
Patrick Abell
Ellen Haberle
Pacaso, Inc.
April 7, 2022
Thank you for your cooperation.
Sincerely,
Brian A. Pierik
City Attorney
City of Carmel-by-the Sea
BAP:SAR/jc
CAM #4855-3499-0355 v1
Exhibit 4
LCP-3-CML-23-0022-1-Part B
EXHIBIT C
Exhibit 4
LCP-3-CML-23-0022-1-Part B
April 19, 2022
Brian A. Pierik
Burke, Williams & Sorensen, LLP
2310 East Ponderosa Drive - Suite 25
Camarillo, California 93010-4747
Dear Mr. Pierik:
We are in receipt of your letter dated April 7, 2022 on behalf of your client, the City of Carmel-by-the-Sea (“City”).
As an initial matter, we were very disappointed to receive your letter. Pacaso has had numerous conversations with City officials. We thought these conversations were productive and that City officials understood our co-ownership model and that we wanted to be a good partner in the community. It is even more disappointing that you have demanded a draconian solution, i.e., that Pacaso cease its current operations in the City. This is especially egregious when one considers that Pacaso is only managing a single home in the City and, to our knowledge, there has not been a single complaint regarding the home.
Background
Pacaso is a real estate service company that supports buyers who wish to co-own residential property together through a property-specific LLC. Co-ownership, whereby a small group of family members or friends co-own a second home together, is a common practice throughout California, the Monterey Peninsula, and in Carmel. According to our analysis, about 60% of the housing units in the City are not occupied on a full-time basis by their owners and over 2,500 of these are owned in an LLC or trust, which enable co-ownership arrangements.
While your correspondence characterizes our business as "timeshare,” there are several key differences between the Pacaso co-ownership model and traditional timesharing plans. Pacaso sells ownership interests in residential real estate, unlike traditional timesharing plans, which often give purchasers a contractual right to use a resort property. Just like family members who own property together, Pacaso co-owners together own 100% of the property and employ Pacaso as a service provider to assist them with scheduling, property management and expense management. If Pacaso co-owners no longer desire Pacaso’s services, they have the option to terminate Pacaso as a service provider; traditional timeshare owners typically do not enjoy that option. Furthermore, the co-owners can sell the home, dissolve the LLC and distribute the sale proceeds of the real estate asset to each co-owner on a pro rata basis. That is, they have all of the rights and optionality of any other single-family residence owners.
Pacaso Homes Are Not Timeshares
Turning to the application of the City’s timeshare ordinance, it is clear that the City’s ordinance does not apply to a Pacaso home. Section 17.28.010 provides that: “[t]imeshare projects, programs and occupancies are prohibited uses within all of the zoning districts within the City.” Exhibit 4
LCP-3-CML-23-0022-1-Part B
Times-hare project, program, and occupancy are defined in CMC Section 17.70.020 (emphasis added):
Time-Share Occupancy. An occupancy related to the situation wherein a purchaser receives the right or entitlement in perpetuity…for a period of time that has been or will be allotted from the use or occupancy periods into which the time-share project which is involved has been divided.”
Time-Share Project. A project in which a purchaser receives the right…to the recurrent, exclusive use or occupancy…for a period of time that has been or will be allotted for the use or occupancy periods into which the project has been divided.” Time-Share Program. Any arrangement for a project whereby the use, occupancy, or possession of real property has been made subject to a time-share estate, use, or occupancy, whereby such use, occupancy, or possession circulates among purchasers of the time-share intervals according to a fixed or floating time schedule on a periodic basis for a specific period of time during any given year, but not necessarily for consecutive years.
As you can see above, the definitions of timeshare occupancy, project, and program only apply when usage rights in a property have been divided into increments of time. A Pacaso home is not divided into increments of time. Rather, the home is owned in its entirety, in fee simple, by the LLC and the property has not been divided into increments by a timeshare plan or by a timeshare instrument. It is analogous to when friends or family members co-own a second home today and the friends or family members decide how to share ownership and use of the property. The negotiation and cooperation by co-owners regarding how they want to use their second home does not create a timeshare because the property is owned in its entirety and not divided into time increments. In short, Pacaso owners are not purchasing a use right for a specific period time, but rather are purchasing a co-ownership interest and agreeing to equitably use the home with their co-owners.
The co-owners of the Carmel home use their home for residential purposes, which is a permitted use of the property and is similar to the manner in which other second home owners own and use homes in the City. We presume it is not the intention of the City or the aim of the City’s zoning code to regulate who may or may not co-own a real estate together, or dictate the vehicle through which they elect to co-own real estate. As the City has acknowledged in its Housing Element of its General Plan, “Cities have limited ability to influence second home ownership and use.” The co-owners of the Carmel home have elected to co-own their home in a multi-member LLCs, which is an ordinary practice in real estate. The co-owners have agreed to engage Pacaso as a service provider to assist them with the management of the home. As such, the co-owners of the home in question are owning the home in a way that is permissible under the City code and is similar to the manner in which other owners of second homes own and use homes in the City.
In addition, any attempt by the City to enforce its current ordinance against the Carmel home would run counter to the Coastal Act, in that it purports to restrict access to the City’s coastal Exhibit 4
LCP-3-CML-23-0022-1-Part B
zone in a way that has historically not been restricted for similarly situated co-owners of residential properties in the City.
Pacaso Homes Help the City Achieve Housing Goals
We also note that the Pacaso model will help the City achieve two goals set out in the City’ Housing Element - “Preserve the existing housing stock” (Goal G3-1) and “Protect the stability of residential neighborhoods by promoting year-round occupancy and neighborhood enhancement” (Goal G3-4).
The sale of Pacaso homes in Carmel will help “[p]reserve existing housing stock” by giving second home buyers a better option than a whole home. (Goal G3-1.) Just one co-owned Pacaso home can remove up to eight buyers from local housing competition by pooling them into a single luxury home, since Pacaso makes use of one property that would have otherwise been eight separate second-homes. As a result, the City’s embrace of the Pacaso model could actually help preserve existing housing stock. In short, by decreasing demand for second homes in Carmel, the Pacaso model will allow the City to preserve existing housing stock, based on the basic laws of supply and demand.
The sale of Pacaso homes will also help “...[p]rotect the stability of residential neighborhoods by promoting year-round occupancy and neighborhood enhancement.” (Goal G3-4.) Second home ownership can be inefficient, exclusionary and wasteful, as second homes owned by just one family typically sit vacant up to 80% of any given year. Pacaso homes are different - the homes offer a more sustainable way to own and enjoy a second home. In return, Carmel and its neighborhood could benefit from the year-round occupancy that Pacaso homes provide which create a more vibrant community filled with families with a long-term connection to the community, not empty homes with the blinds closed. In addition, local Carmel businesses would benefit from year-end occupancy as Pacaso co-owners will frequent Carmel’s shops, restaurants, and coffee shops more frequently than a second home-owner who is only in town sporadically.
We look forward to being a good partner with the City and look forward to continuing our productive conversations with the City’s elected officials.
Sincerely,
Kevin Heneghan
Exhibit 4
LCP-3-CML-23-0022-1-Part B
EXHIBIT D
Exhibit 4
LCP-3-CML-23-0022-1-Part B
2310 East Ponderosa Drive - Suite 25
Camarillo, California 93010-4747
voice 805.987.3468 - fax 805.482.9834
www.bwslaw.com
Direct No.: 805.437.4407
[email protected]
Los Angeles – Inland Empire – Marin County – Oakland – Orange County – Palm Desert – San Diego – San Francisco – Silicon Valley – Ventura County May 4, 2022
VIA EMAIL: [email protected] and
VIA FEDERAL EXPRESS
Kevin Heneghan, VP Legal
Pacaso, Inc.
2021 Fillmore St. Suite 183
San Francisco, CA 94115
Re: Pacaso Operations in City of Carmel-by-the-Sea
Dear Mr. Heneghan:
This letter is in response to your April 19, 2022 correspondence, acknowledging receipt and responding to my letter of April 7, 2022 on behalf of the City of Carmel-bythe-Sea (“City”) to immediately cease and desist unlawful operations in violation of Carmel-by-the-Sea Municipal Code (“CMC”) sections 17.28.010 and 17.70.020 prohibiting timeshare uses, and CMC section 5.04.020 requiring business licenses for commercial operations within the City of Carmel-by-the-Sea.
Our office has reviewed your assertions that Pacaso is not a time-share and disagree that Pacaso is not in the business of advertising, selling, and operating time shares in the manner defined by CMC section 17.70.020. Pacaso does not dispute that it creates multi-member LLCs to hold property. Nor does it contest that it sells shares of such LLCs to individual owners. It also does not dispute that the owners of such shares of the LLC gain fixed rights to the exclusive use and occupancy of a property pursuant to a floating time schedule, under such rules and operating agreements created by Pacaso, as a result of becoming owners and members of the LLC.
Rather, in your response letter, you assert that “[a] Pacaso home is not divided into increments of time. Rather, the home is owned in its entirety, in fee simple, by the LLC and the property has not been divided into increments by a timeshare plan or by a timeshare instrument.” You also assert that “Pacaso owners are not purchasing a use right for a specific period time, but rather are purchasing a co-ownership interest and agreeing to equitably use the home with their co-owners.” However, this is directly Exhibit 4
LCP-3-CML-23-0022-1-Part B
Kevin Heneghan, VP Legal
Pacaso, Inc.
contradicted by statements on Pacaso’s own website,1 stating that owners are entitled to stay in a Pacaso property based on the number of shares in the property that they own, with each share giving the owner rights to entitling an owner to stay up to 44 nights per any given year, using either the six “general stays” that can last between 2 and 14 nights per year and be reserved 24 months in advance, to stay up to 44 nights per year, and rights to “short-notice stays” based on a floating schedule of availability.
Furthermore, the website states that each owner will be allotted a “general stay” that “falls on a special date (e.g. federal holidays or popular local events).” Pacaso’s response letter entirely fails to provide any substantive response that a floating schedule, as created by Pacaso, constitutes a prohibited time-share program, whereby the “use, occupancy, or possession circulates among purchasers of the time-share intervals according to a fixed or floating time schedule on a periodic basis for a specific period of time during any given year . . .” (See CMC section 17.28.020 [defining “timeshare program”].) Granting each owner the right to use the property for up to 44 nights per year based on a rules created by Pacaso and having use established under a floating time schedule creates a time-share use prohibited by the CMC, regardless of whether the ownership of the property is held via an LLC or some other manner. This is because the City prohibits both time-share estates (where a user is party to a time-share program and owns an interest in the estate in real property) as well as time-share uses (where a user is party to a time-share program and exercises a right of occupancy pursuant to a license, contractual or membership right without having an estate in the real property).
Thus, Pacaso’s argument that the properties it sells and manages are not timeshares because of ownership through a multi-member LLC is unavailing. Owners of Pacaso properties own an interest in the real estate through the LLC, and are using the property pursuant to a floating schedule, thereby using and occupying the property as a prohibited time-share estate. In the alternative, if such owners are deemed not to own an interest in the real estate, because the LLC is considered the sole legal owner, then they are owners of prohibited time-share uses. By buying shares and becoming party to operating agreements for the LLC, such owners gain contractual or membership rights to use the property based on the floating time scheduling system and rules created by Pacaso, constituting a prohibited time-share use.
1 https://www.pacaso.com/scheduling
Exhibit 4
LCP-3-CML-23-0022-1-Part B
Kevin Heneghan, VP Legal
Pacaso, Inc.
As a result, the City reiterates its requirement that Pacaso cease and desist from any advertising, operation, and/or sale of timeshare properties with the City. Any use or listing of property for unlawful time-share use in the City may result in enforcement, including issuance of citations, civil action for injunctive relief, or criminal prosecution.
We also wish to point out that any action by Pacaso to continue its operations in Carmel-by-the-Sea in the manner described above would expose its clients to potential jeopardy for violating the City’s codes prohibiting time shares.
Finally, in the meeting Councilmember Jeff Baron had with Steve Thomas and Gabe Dina-Smith on March 22, 2022, Councilmember Baron was told he would be provided with: (1) a copy of the basic Pacaso LLC template so that the City can review it and determine its adherence to the City’s Municipal Code regarding time shares and (2) investigating and reporting on how the parcel tax/property tax/accounting/reporting works in conjunction with the Monterey County Assessor’s and Tax Collector’s Office as shares of the LLC are created, then sold and resold, Councilmember Baron did not receive these documents and information and we renew that request at this time.
Sincerely,
Brian A. Pierik
BAP:dvdw
CAM #4888-4151-8110 v1
Exhibit 4
LCP-3-CML-23-0022-1-Part B
Exhibit 4
LCP-3-CML-23-0022-1-Part B
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LCP-3-CML-23-0022-1-Part B
Exhibit 4
LCP-3-CML-23-0022-1-Part B
Exhibit 4
LCP-3-CML-23-0022-1-Part B
Exhibit 4
LCP-3-CML-23-0022-1-Part B
Exhibit 4
LCP-3-CML-23-0022-1-Part B
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Exhibit 4
LCP-3-CML-23-0022-1-Part B
Exhibit 4
LCP-3-CML-23-0022-1-Part B
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LCP-3-CML-23-0022-1-Part B
Exhibit 4
LCP-3-CML-23-0022-1-Part B
Exhibit 4
LCP-3-CML-23-0022-1-Part B
Exhibit 4
LCP-3-CML-23-0022-1-Part B
STATE OF CALIFORNIA — NATURAL RESOURCES AGENCY GAVIN NEWSOM, GOVERNOR
CALIFORNIA COASTAL COMMISSION CENTRAL COAST DISTRICT
725 FRONT STREET, SUITE 300
SANTA CRUZ, CA 95060
PHONE: (831) 427-4863
FAX: (831) 427-4877
WEB: WWW.COASTAL.CA.GOV
F13b
Prepared October 11, 2023 for the October 13, 2023 Hearing To: Commissioners and Interested Persons
From: Kevin Kahn, Central Coast District Manager
Katie Butler, Central Coast District Supervisor
Subject: STAFF REPORT ADDENDUM for F13b
City of Carmel-by-the-Sea LCP Amendment Number LCP-3-CML-23-0022- 1-Part B (Timeshare Provisions)
In the time since the staff report for the above-referenced item was published (on September 29, 2023), the Commission has received correspondence both in support1 and opposition2 to the staff recommendation (see the correspondence package for this item). In particular, Pacaso’s correspondence claims that the City’s proposed LCP Implementation Plan (IP) amendment is inconsistent with the LCP Land Use Plan’s (LUP’s) existing timeshare prohibition as well as its protections for public access, visitorserving uses, and private property rights of homeowners. Pacaso also asserts that the amendment would prohibit co-ownership throughout the City’s coastal zone, and fails to differentiate among varying types of co-ownership (such as friends or family members who jointly own a home, or multiple individuals who each own a portion of a home, etc.), which could result in selective and discriminatory enforcement if only Pacaso properties were targeted by the City’s proposal. Finally, Pacaso asserts that the City has created a false sense of urgency with respect to the need for the amendment, and that the Commission should take more time to carefully evaluate the impacts of banning fractional ownership, including whether and how such ownership may improve access and overall affordability of coastal housing and visitor accommodations. Staff believes that these issues are properly addressed in the staff report and continues to recommend approval as submitted. However, this addendum provides additional context and explanation on these issues in response to Pacaso’s claims.
Pacaso asserts that the proposal to clarify the LCP’s definitions related to timeshares such that fractional interests explicitly meet such definitions is inconsistent with the 1 Correspondence from Better Neighbors LA dated October 6, 2023. 2 Correspondence from Pacaso, Inc. (Pacaso) (from their representatives Latham & Watkins LLP, and dated October 6, 2023) and the Monterey County Association of Realtors (dated October 6, 2023).
Pacaso is a private company that (per their submitted materials) is a “real estate marketplace and property management service that aims to make second homeownership more accessible by facilitating co-ownership of luxury homes between families. The company purchases homes above the median price in popular second home destinations, and then sells up to eight shares to individual buyers.” LCP-3-CML-23-0022-1-Part B (Timeshare Provisions) Addendum
LUP’s prohibition against timeshares. Pacaso argues that the LUP’s prohibition against timeshares does not and cannot apply to fractional interests currently because fractional interests are not explicitly accounted for in the LCP’s definitions, and thus Pacaso argues that it is implied that they are not equivalent. However, the LUP timeshare prohibition (LUP Policy P4-64) prohibits “the sale of interests in and rights to use real property in the City on a timesharing basis.” Rather than demonstrating Pacaso’s points, such policy is actually fairly broad, simply stating that ‘interests in and rights to use’ private property on a timesharing basis is not allowed. 3 Pacaso’s form of private
ownership, which is premised on interests in and rights to use fractionalized interests in ownership, at face value appears to fall under the LCP’s timeshare definitions and prohibition. And, in fact, the City does argue that such fractional ownership arrangements are timeshares and are currently prohibited. One of the purposes of the amendment from the City’s perspective is not to change that, but rather to make it clearer, including as Pacaso has challenged that City determination. As described in more detail on page 11 of the staff report, there is nothing in the LUP that would suggest the City cannot make clear that fractional interest ownership is a type of timeshare. In fact, it certainly appears to be a form of ‘timeshare,’ and that the City is making the distinction more clear does not raise the type of LUP consistency problem asserted by Pacaso.
Further, while Pacaso argues that “the Staff Report’s statements are not tied explicitly to the Municipal Code’s definitions of timeshare,” Pacaso is misstating the standard of review for the proposed IP amendment. The Commission must weigh the proposed IP against the LUP, and it is not weighed against the existing IP. As such, the core analytic question is not whether the City’s proposal is an expansion or a clarification to the existing IP, rather it is whether the proposed IP conforms with and is adequate to carry out the LUP. As described in the staff report, and as indicated above, it is clear that a straightforward understanding of the language of LUP Policy P4-64 (and other LUP coastal resource provisions; see also below) supports a conclusion that the proposed IP meets the above the LUP tests. In other words, the City is simply proposing to make clearer what types of timesharing ownership arrangements fall under the LCP’s timeshare prohibition.
4 If Pacaso’s form of fractional ownership and timesharing is not currently prohibited by the LCP, and if the City’s proposal would prohibit it for the first time, as Pacaso instead suggests, the City’s proposal is still LUP consistent. The reality is that Pacaso’s model of purchasing very high end single-family residential properties5 simply has very little – if any – effect on coastal resources. Whether such high end homes are owned by one or up to eight entities (i.e., the Pacaso model) who share time there, they are not available to the general public, and in fact remain a very limited form of even private residential 3 And the LCP defines a ‘timeshare estate’ as “a right of occupancy in a timeshare project that is coupled with an estate in the real property.”
4 It is also important to note that the City’s proposed ‘time share plan’ definition is the same definition used by the California Department of Real Estate (see staff report Exhibit 4), which even further strengthens the argument that the City’s proposal is consistent with LUP Policy P4-64. 5 Pacaso indicates that its properties typically cost seven times the average home sale in a community, which in Carmel would be some $21 million per home (see staff report page 12).
LCP-3-CML-23-0022-1-Part B (Timeshare Provisions) Addendum
use. Contrary to Pacaso’s claims, and especially contrary to Pacaso’s claims that such high end private residential use somehow enhances coastal resource values (such as those related to public visitor-serving access and accommodations), it appears clear that such use simply cannot lead to the types of coastal resource enhancements that Pacaso claims. And conversely, if such private residential use by multiple owners sharing time in such high end homes were prohibited, such prohibition would likewise not significantly affect coastal resources in the way Pacaso claims.
Again, and as discussed in more detail beginning on page 11 of the staff report, the issues in this proposed LCP amendment are all centered around private residential ownership constructs affecting only a very small and exceptionally expensive segment of the private coastal real estate market, and do not significantly affect coastal resources, especially for the general public.6 To the extent that Pacaso argues that fractional homeownership expands total accommodations and coastal visitation opportunities for all potential coastal visitors by reducing some of the demand for same (when some such potential visitors instead purchase a fraction of ownership in a high end private home), or that public access and visitor serving opportunities are increased because they are increased for those who buy into a Pacaso home, staff disagrees.
Again, the concept is simply not applicable to the broader populace, but rather only to the fortunate very few who are able to afford very high end real estate on a second home and timesharing basis.7,8 As such, the Pacaso concept as it applies to coastal resource effects is better understood as another form of private second home ownership for a very small subset of the general population, and that small subset simply cannot move the public access/visitor serving opportunity needle in any sort of meaningful way, and certainly not in the way claimed by Pacaso. Yes, as described in the staff report, the owners of such shares of such high end homes are members of the public, but the general public does not achieve better access as a result of Pacaso’s efforts. In fact, for those not fortunate enough to be able to achieve residency in Carmel, including for those for whom such residency is simply prohibitively expensive, it is hard to see how the Pacaso ownership model could lead to any sort of public access/visitor serving improvement.
6 And again, to be clear, these are not short-term rentals or hotels for the visiting public as Pacaso implies in its letter (calling them “a uniquely residential form of coastal accommodation”). Rather, these are high end private residences not open nor available to the general public. As such, Pacaso’s arguments about increasing coastal access for the general public, or offering a form of accommodation to augment the City’s supply of short-term rentals and hotel stock, are misplaced. 7 In the above example, a $21 million home split eight ways is still over $2.6 million each, and that is for a second home where each co-owner’s time is split eight ways with the other co-owners. 8 As it relates to Pacaso’s assertion that short-term rentals are banned in Carmel, that is simply not correct. While true that short-term rentals are limited in the City by the LCP, and are generally found in the downtown commercial core, there were some 44 such rentals as of 2020 (equivalent to about 1.2% of City housing stock, which is not a dissimilar short-term rental percentage to other coastal communities). In addition, Carmel has a large stock of hotel and motels and the like, providing for about 1,000 publicly available rooms citywide. For a City of some 3,800 residents, that is more than one hotel/motel room for each four residents, which is quite a high percentage for coastal communities. While not to suggest that such overnight accommodations are all affordable, it is to suggest that the City provides fairly robust visitor-serving overnight opportunities.
LCP-3-CML-23-0022-1-Part B (Timeshare Provisions) Addendum
With respect to co-homeownership and the Pacaso claim that the proposed timeshare definition would effectively prohibit all co-ownership of coastal properties, staff points to Exhibit 4 of the staff report which includes a letter from Burke, Williams & Sorensen, LLP, who represent the City, dated September 5, 2023, that explains how the proposed changes do not apply to all individuals who co-own property. Specifically, that letter states:
Pacaso’s August 4, 2023 letter asserts that the LCP Amendment “could directly restrict conduct that is common to individuals who co-own properties, regardless of the arrangement.” This is also not the case. To be subject to the timeshare prohibition, the text of the LCP Amendment makes clear that there must be a “time-share plan” that divides the use of the real property. The prohibition is applicable when there is (1) a purchaser, (2) who in exchange for consideration [i.e. something of value], (3) under the terms of a formal instrument, such as a membership agreement, sale, lease, deed, license, right-to-use agreement, articles of organization or incorporation, operating agreement or bylaws, or similar, (4) receives the right to exclusive use of real property or portion thereof, according to a fixed or floating time schedule, for a period of time less than a full year during any given year, (5) on a recurring basis for more than one year, but not necessarily for consecutive years. Accordingly, Pacaso is plainly incorrect – the LCP Amendment would not apply to all individuals who co-own property, regardless of arrangement. For example, it would not prohibit joint tenancy or tenancy-in-common. Family or friends who buy a property as joint tenants or acquire property as tenants-in-common normally acquire unlimited rights to use and enjoy the property for the entire year and can co-occupy the property as a matter of right, but will normally share the use of property through informal arrangements. Family or friends who jointly acquire a property do not necessarily pay for the right (i.e. purchaser in exchange for value) to exclusively use a property for a particular period. Other than recognizing that prohibited timeshares will occur whenever the right to exclusively occupy a piece of real property is established by a formal instrument and subdivided into scheduled periods of less than one year, the LCP Amendment has no effect on the rights of individuals to co-own property.
Staff agrees with the City’s assessment of this claim, in particular as related to the five formal elements in the definition of what constitutes a “timeshare plan.” The definition does in fact make the distinction for this type of co-homeownership versus more informal co-homeownership arrangements between families and friends. Family or friends who jointly acquire a home will typically do so as joint tenants or tenants-incommon and the owners each possess the full and unrestricted right to use and enjoy the property. They do not have the right to exclude their co-owners, which is in contrast with owners of interests in a fractional ownership home that expressly pay for exclusive rights to use the property; meaning only one interest-holder is permitted to use the property at a time. In addition, family or friends who buy a property together acquire unlimited rights to use and enjoy the property for the entire year and can co-occupy the property as a matter of right. However, owners of a fractional ownership interest in a home pay for exclusive rights to use a property for less than a year, and this arrangement is typically memorialized in a written instrument that all fractional interest LCP-3-CML-23-0022-1-Part B (Timeshare Provisions) Addendum
holders agree to when they purchase their ownership interest. Relatedly, staff also disagrees with the assertion that the amendment would result in selective and discriminatory enforcement against Pacaso and not other families/friends in coownership arrangements because the latter are not considered timeshares under the proposed definition.
In terms of Pacaso’s claim that the Commission needs to further evaluate Pacaso’s ownership model, including the way in which it affects the larger visitor-serving accommodation and housing ecosystem, before taking an LCP amendment action in this case, staff disagrees. As indicated in the staff report and above, staff disagrees that the Pacaso model of co-ownership has any effect (beneficial or otherwise) on public access or visitor-serving accommodations. It is instead simply a formalized private high end second home ownership arrangement with multiple owners with little to no effect on coastal resources. As such, staff does not believe that there is any need for further Commission review as suggested before the Commission takes action on this proposed LCP amendment.
Finally, to Pacaso’s assertion that the Commission is required to protect private property rights in making this LCP decision, pointing to LUP Goal G4-1’s (mirroring Coastal Act Section 30210) reference to ‘maximizing public recreational access opportunities consistent with private property protection,’ Pacaso’s analogy is not on point. First, one must first be maximizing such public recreational access opportunities for such private property admonition to apply. As indicated above, the City’s proposed LCP amendment does not affect such opportunities in any meaningful way, and there is no need to consider the private property component of this goal. Two, and related, the concept that private property rights are required to be protected independently by that LUP goal is simply incorrect. In suggesting as much, Pacaso attempts to re-write that policy as if the ‘protection’ identified were a standalone requirement. It is not. And three, this proposed LCP amendment is not directed at private property rights, rather it is simply clarifying the LCP’s timeshare prohibition. To the extent that its effect extends to private property rights in the way suggested by Pacaso, it represents the City’s exercise of its land use and related regulatory authorities that exist outside the LUP’s coastal resource protection lens, where such exercise is not inconsistent with LUP provisions.
In sum, there is nothing in the LUP to suggest that it cannot consider fractional home ownership to be a form of timeshare in the manner that the City proposes in this IP amendment. If this form of timeshare is already prohibited, as suggested by the City, and as appears to be the case, then further clarifying definitions and related provisions does not change the way in which the LCP protects coastal resources, and rather only more clearly and forcefully protects such resources as it relates to timeshares given the City’s proposed additional enforcement provisions. If, instead, this form of timeshare would begin to be prohibited by the proposed LCP amendment, as Pacaso argues, such prohibition would not affect coastal resources, and can be found consistent with and adequate to carry out the LUP. Again, the Pacaso model involves a form of high end private residential ownership that only affects a very, very small segment of the population and a very, very small segment of City housing stock in a manner that does not adversely affect coastal resources. Staff continues to recommend approval of the proposed LCP amendment as submitted.
Agenda Item # 6.A.
Council Agenda Report
To: Mayor Uhring and the Honorable Members of the City Council Prepared by: Susan Dueñas, Public Safety Director
Approved by: Steve McClary, City Manager
Date prepared: September 25, 2023 Meeting date: November 13, 2023 Subject: MOU and License Agreement with Zuma Beach FM Emergency and Community Broadcasting, Inc. (KBUU) for a Booster Antenna at Malibu Bluffs Park (Continued from October 23, 2023)
RECOMMENDED ACTION: Authorize the Mayor to enter into a License Agreement and Memorandum of Understanding (MOU) with Zuma Beach FM Emergency and Community Broadcasting, Inc. (KBUU) to utilize Malibu Bluffs Park as the location for an FM booster station.
FISCAL IMPACT: Depending on Council direction there may be a fiscal impact to be determined related to the purchase and installation of equipment. However, the cost is not expected to exceed $25,000 and would not require additional appropriations at this time.
STRATEGIC PRIORITY: This item supports the Public Safety Projects (Communications) priority identified in the Adopted FY 2023-24 Strategic Priority Project List.
DISCUSSION: Broadcast radio capabilities have been a critical component in emergency communications for decades, and when power is out and cell service is not available, broadcast radio provides one of the only means of communication. In addition, FM radio is now capable of transmitting emergency alerts to the public even when cell service and electrical power is not available. While there are several FM stations that can be received in parts of Malibu, including KBUU, none of them reach all of Malibu due to the City’s unique topography. However, KBUU is the only FM station dedicated to serving the Malibu community. There are also some AM stations that can be received in Malibu; however, none of those stations reach all areas of Malibu and none of them are dedicated to serving the Malibu community. In addition, while AM radio is capable of City Council Meeting
11-13-23
Item
6.A.
Agenda Item # 6.A.
sending Emergency Alert System (EAS) messages, the City is not allowed to use that system. Only the county, state or federal government can use the EAS system.
However, the City can implement an FM radio alerting system.
To alleviate challenges with signal coverage, KBUU submitted a proposal to the City in 2019 requesting permission to place an FM booster station at Malibu Bluffs Park (Attachment 1). Malibu Bluffs Park is the best-known location available where an antenna could be placed that would allow KBUU’s listenable broadcast signal to reach the eastern third of Malibu while meeting Federal Communications Commission (FCC) requirements. At the September 19, 2019, Regular City Council Meeting, the Council authorized the City Manager to enter into a license agreement with KBUU to utilize Malibu Bluffs Park as the location for an FM booster station, pending required permits.
Since 2019, KBUU applied for, and obtained, the required FCC license for the booster antenna and has worked with staff to implement the proposal, which has evolved and was temporarily on hold during the pandemic. Originally, KBUU had FCC approval to install the following components at the Maintenance Building at Malibu Bluffs Park:
1. A 28-foot mast with two identical antennae reaching four and a half feet to each side of the mast located on the south side of the building;
2. Two to three small solar collectors with batteries near the base of the mast to be used to power the booster antennae during emergencies and Public Safety Power Shutoffs (PSPS);
3. A 19-watt transmitter inside the Parks Maintenance Building; and,
4. A communications dish, three feet in diameter, on the exterior wall of the Parks Maintenance Building.
However, in 2021, staff determined that the Michael Landon Center would provide a better location because there could be access to electrical power and internet. KBUU agreed and obtained FCC approval to move it to this location. In 2022, KBUU proposed placing a surface mount antenna on the roof of the Michael Landon Center, however, it was determined by staff that it would require an engineering plan to ensure that it was installed in a way that would not damage the building or endanger park visitors.
After much debate in early 2023, the proposed project returned to the original idea of being placed at the Park Maintenance Building. Since this location is further south than the Michael Landon Center, it provides a better place for increased signal coverage. The current proposal mirrors the proposal from 2019, but also includes a 9-inch diameter wireless internet dish attached to the top of the Michael Landon Center and a similar dish on the Parks Maintenance Building to provide internet access and telemetry to the transmitter.
Agenda Item # 6.A.
In recognition of the importance of this project as a critical element of the City’s emergency communication capabilities, staff proposes forming a public-private partnership with KBUU by establishing an MOU (Attachment 1) along with the License Agreement (Attachment 2) for the equipment to be installed on public property. The proposed partnership would include the City assuming financial and permitting responsibility for installing a mast sufficient to hold the booster antennas and KBUU will be responsible for providing the antennas and associated communication equipment as well as obtaining and maintaining the appropriate FCC license. A diagram of where the mast would be installed is included in the License Agreement. The MOU outlines the policies, procedures, and responsibilities of the City and KBUU with respect to utilizing KBUU for emergency communications.
If approved, the next step will be for staff to obtain a Conditional Use Permit and a Coastal Development Permit. Once the permits are secured, staff will identify a vendor to install a mast and the two antennas.
By expanding the signal coverage – which would apply to everyday use as well as emergencies – KBUU would become a more effective communication option for the City to provide important emergency information before, during and after an incident. This would also provide the City the ability to implement an FM radio based disaster notification system to provide emergency notifications to the community when cell service and power is out.
ATTACHMENTS:
1) MOU between the City of Malibu and KBUU
2) License Agreement with KBUU
Memorandum of Understanding between the
City of Malibu and Zuma Beach F
Emergency and Community Broadcasting Inc.
10/4/23 Draft
This Memorandum of Understanding (MOU) is made on (Date) between the City of Malibu (City) and Zuma Beach FM Emergency and Community Broadcasting Inc., a California nonprofit corporation that holds the FCC license for Low Power FM radio station KBUU-LP in Malibu (KBUU).
PURPOSE
The purpose ofthis MOU is to 1) outline responsibilities and procedures for KBUU to broadcast public safety messages during significant events that threaten life, property and the environment, and for the direct use of KBUU’s airwaves and transmitters by the City of Malibu during emergencies, and 2) outline responsibilities for the installation and maintenance of a booster antenna at Bluffs Park located at 24250 Pacific Coast Highway [s~pjMalibu, California 90265.
BACKGROUND
In an emergency, the effective delivery of public information is critical. Timely, accurate information supports emergency response and recovery, and ensures that members of the public take appropriate actions to protect themselves and others.
In emergency situations (fire, storm, earthquake), the City frequently loses electrical power and cell service in many parts of the City. Broadcast radio capabilities are extremely important in this situation in order to provide critical emergency information to the community. KBUU is the only broadcast radio station located in Malibu. Other broadcast radio stations that have signals that reach parts of Malibu are all located outside the City. Due to this fact, and the fact that KBUU was specifically created to service the City of Malibu, the City wishes to partner with KBUU to establish an effective broadcast radio capability to serve the community during emergencies.
Also, the City is currently evaluating the implementation of an emergency outdoor warning system or sirens to alert people to an emergency situation. However, for this type of emergency alerting system to be effective, it needs to be paired with a broadcast radio system to provide community members with information about the emergency and what actions are needed.
Therefore, it is imperative that the City and KBUU have a clear understanding of the relationship and what the responsibilities of each party are. In addition, to ensure that the KBUU signal reaches most of the Malibu coastline in an emergency, a booster needs to be installed at Bluffs Park. KBUU has acquired the antenna and FCC license to operate a booster, but needs the assistance of the City to install a pole that is appropriate for the antenna to be attached to.
TERMS OF MOU
This MOU will become effective on [date] and will remain in effect from said date unless terminated by either party. The parties to this MOU are independent and no principal/agent relationship, partnership, employment or contract is created by this document.
This MOU is not legally binding on, or enforceable by, either of the parties but the parties acknowledge that this MOU is intended as a statement of mutually agreed intentions. It is not intended to create legally enforceable rights or obligations. The parties agree that KBUU is free from the control and direction of City in connection with KBUU’s performance of this Agreement. However, the parties agree that they are Attachment #1
bound in good faith to observe and perform their obligations under this MOU to the best of their ability as ifthey were legally enforceable.
RESPONSIBILITIES
City of Malibu responsibilities:
1. The City will be responsible for installing and maintaining a pole at Bluffs Park that is sufficient to support the KBUU antenna, including all permitting and fees.
2. Ifthe City decides to enable live audio feeds, the City will purchase and maintain an Internet audio codec system to deliver the live signal.
3. The City will develop the content of its official messages to be aired on KBUU.
4. The City will create the audio feed to be played live, or a recorded audio file for intermittent and/or continuous play and replay, during emergencies, on KBUU.
5. The City will communicate to the Malibu community that KBUU is the official emergency broadcast radio station.
6. The City will include the use of KBUU in all appropriate emergency plans and procedures.
7. The City will ensure that Public Safety and Media Team staff are trained in the development of audio feeds and submitting them to KBUU.
8. The City will provide KBIJU with a suitable indoor location to put its electronic equipment (including but not limited to several 12-volt car batteries, Internet switches, and the broadcast amplifier), a flat-mounted solar panel, and ancillary gear.
9. The City will provide KBUU with Internet access for a continuous Internet path of 3 megabits per second, capable of handling KBUU’s peer-to-peer multiplex broadcast signal transmission through any city Internet firewalls. The point of demarcation between the City’s Cat-S cable and KBUU will be at the Bluffs Park Maintenance Building, unless the City elects to place the point of demarcation at the Michael Landon Center, in which case the City will allow KBUU to place a small WiFi dish atop Michael Landon Center, and a reciprocal small WiFi dish atop the Maintenance Building, in locations to be as obscure to the general public as possible.
10. The City agrees to abide by all FCC policies and public laws, including prescriptions from Federal Communications Commission v. Pacjflca Foundation 38 US 726 (1978), and the prohibition on advertising from the Local Community Radio Act of 2009.
KBUU responsibilities:
1. Zuma Beach FM Emergency and Community Broadcasters Inc. shall at all times retain control of KBUU-LP but will allow the City of Malibu to use KBUU-LP’s facilities for the vital role of transmitting official communications from the city, as deemed necessary by the two parties.
2. KBUU will broadcast urgent messages from the City when furnished by the City on an hourly basis or more frequently, at no charge to the city.
3. KBUU will accommodate City-owned equipment, ifthe City elects to purchase it, to enable transmission of live audio transmissions from the City, subject to Internet functionality, on KBUU.
4. KBUU will allow the direct use of its airwaves and transmitters by the City during emergencies. This use shall mean the city may furnish a live audio feed to be played live, or a recorded audio file for continuous play and replay, on the station’s FM signal on FM 99.1.
5. Should the City elect to buy and configure the proper equipment, KBUU will train City staff on how to operate the KBUU automation system, and on how to put City live and recorded City announcements on the KBUU air. KBUU will install and maintain the broadcast booster equipment in a location inside a building at Bluffs Park to be designated by the City.
6. All equipment to be installed by KBUU will be FCC type accepted, will comply with applicable laws, including, but not limited to, applicable laws governing RF emissions, electrical codes and fire codes, and it will not necessitate any electrical rewiring by the city.
7. KBUU will allow the City of Malibu to install, at any future point, communications antennae and equipment for at the KBUU main transmitter and tower location, 5911 Murphy Way, for the City’s current or future needs, at no charge, subject to amending the master license from KBUU’s landlord. The landlord has given KBUU a revocable license to erect broadcast equipment at that location, which is outside the city limits.
ACKNOWLEDGEMENTS
1. KBUU is a volunteer organization, and no staff are paid.
2. The KBUU control point is staffed about 95 percent of the time, 24 hours a day, seven days a week on an annual basis. However, it is occasionally left on automation for several days or up to two weeks at a time. During these periods, the station playback equipment is maintained via remote control over long distances.
3. KBUU relies on volunteer specialized Internet and broadcast engineers who do not live in Malibu, and who sometimes are not available immediately to repair items.
4. The station’s automation, encoders, power supplies, transmitters and studio-transmitter links are complicated pieces of electronic equipment. There are times when they function without fault for months at a time. There are times when components go down unexpectedly. KBUU keeps spare components on hand, but these must be installed in person. This cannot be done if KBUU’s volunteers are out of town or not available.
5. KBUU intends to install a completely-solar-powered transmission device, which will include:
- 2 or 3 solar panels to be installed on the storage containers, as directed by the City; - 2 or 4 deep-charge 12-volt batteries, that will sit in spill-proof containers;
6. KBUU warrants that this is an experimental installation, and that the additional signal coverage area that is anticipated by our engineer’s projections cannot be guaranteed. The KBUU Bluffs booster is licensed for approximately 5 watts of actual radiated power in two tight directional lobes, pointing due east and west, and even the improved signal may, during some weather conditions, experience substantial interference in some parts of Malibu from 72,000-watt KGGI, transmitting from Lake Arrowhead.
7. The KBUU booster will emit electronic signals at a combined actual power of less than 20 watts (10 watts per antenna).
8. No signage or lighting is required by the FCC or any other agency.
WHO IS AUTHORIZED TO REQUEST AN EMERGENCY BROADCAST:
The following City of Malibu employees are authorized to request an emergency broadcast:
• City Manager
• Assistant City Manager
• Deputy City Manager
• Public Safety Director
• Public Works Director
• Media Information Officer
Environmental Services Director/Building Official
• Any designee of the above parties
COMPENSATION
No payment by either party is required for this MOU to take effect.
MOU MANAGERS:
The Public Safety Director shall be responsible for maintaining this MOU in partnership and coordination with KBUTJ.
TERMINATION:
Either the City Manager or KBUU may terminate this MOU, without cause, by giving the other party ten (10) days written notice of such termination and the effective date thereof~ and under such circumstances, KBUU will remove its equipment within 30 days of such notice.
MODIFICATIONS
No modification, variation or amendment of this MOU shall be effective without the written consent of all ofthe parties to this MOU at the time of such modification, variation or amendment.
SUCCESSORS
This MOU shall be binding on and inure to the benefit of each of the parties’ successors and assigns.
SEVERABILITY
If any term, covenant or condition of this MOU shall, to any extent, be invalid, void, illegal or unenforceable, the remainder of this MOU shall not be affected thereby, and each other term, covenant or condition ofthis MOU shall be valid and be enforced to the fullest extent permitted by law.
GOVERNING LAW
This MOU is made and entered into in the State of California and shall be governed by and construed and enforced in accordance with the laws ofthe State of California. The venue for resolving any disputes regarding this agreement shall be within the County of Los Angeles.
NOTICES
Any party delivering notice or requesting information from the other shall send such notice or request as indicated below:
City of Malibu
Attention: City Manager
23825 Stuart Ranch Road
Malibu, CA 90265
KBUU: Zuma Beach FM Emergency and Community Broadcasting Inc.
Attention: Hans Laetz, General Manager
6402 Surfside Way
Malibu, CA 90265
CITY OF MALIBU
By: -----------
Steve Uhring
Mayor
Date: ----------
ATTEST:
By: -------------- Kelsey Pettijohn
City Clerk
THIS DOCUMENT HAS BEE REVIEVVED
BY THE CITY A TTOR EY'S OFFICE
ZUMA BEACH FM EMERGENCY AND
COMMUNITY BROADCASTING INC.
General Manager
Date: ----------
REVOCABLE NON-EXCLUSIVE CONDiTIONAL LICENSE AGREEMENT
This Non-Exclusive License Agreement is made by and between the CITY OF MALIBU, a California municipal corporation (“City”) and the ZUMA BEACH FM EMERGENCY AND COMMUNITY BROADCASTING, INC., a California nonprofit corporation that holds the FCC license for the low power FM radio station KBUU-LP in Malibu (“KBUU”). Each of the City and the KBUU is a “Party” and together they are the “Parties” to this Agreement.
I. RECITALS
A. The City desires to grant, and KBUU to accept, a revocable license for the installation and maintenance of a booster antenna at Bluffs Park located at 24250 Pacific Coast Highway Malibu, California 90265.
B. In conjunction with that certain Memorandum of Udnerstanding executed separately from this Agreement, this Agreement forthe installation of the booster antenna will allow the broadcast of public safety message during significant events that threaten life, property and the environment, and for the direct use of KBUU’s airwaves and transmitters by the City of Malibu during emergencies.
AGREEMENT
NOW, THEREFORE, the City and KBUU agree as follows:
H. GRANT OF LICENSE TO KBUU
A. The City, for good and valuable consideration, grants KBUU a revocable, nonexclusive license (the “License”) to use the Property identified in Exhibit A for the purpose described in this Agreement.
B. Use of Property
1. KBUU shall only use the Property for the installation and maintenance of a booster antenna and related equipment at Bluffs Park located at 24250 Pacific Coast Highway Malibu, California 90265. At no times shall the KBUU cause the Property to be inaccessible to the City and its agents. iLCity and its agents shall have access to the Property at all times. In the event that the City’s use of the Property shall interfere with the purposes and uses contemplated in Exhibit A, City shall use reasonable efforts to notil~’ KBUU of any use that would interfere with the KBUU’s use and KBUU shall ensure that its use of the Property shall not interfere with City’s use of the Property.
Nothing shall infringe or impede the City’s absolute discretion to use the Property, and to prohibit KBUU’s use, for public safety purposes.
IlL TERM, CONSiDERATION AND BREACH REGARDiNG LICENSE
A. The term of this Agreement shall be for the period commencing on September 11, 2023 and ending upon the termination of this Agreement by either the City or the KBUU as provided herein (the “Term”). This Agreement shall expire automatically at the end of the Term, unless extended by mutual agreement of the Parties.
B. Should KBUU breach the Agreement in a manner that constitutes a danger to health or safety, the Agreement may be terminated immediately; provided however, this Agreement may be reinstated at the City’s discretion in the event KBUU removes such danger.
C. Either Party may terminate this Agreement at any time and for any reason by giving ten Attachment #2
(10) days written notice to the other Party.
W. INDEMNIHCATION
A. KBUU shall indemnify, defend and hold harmless the City, its officers, employees and agents from and against all claims, causes of action, liabilities and damages for injuries to persons and property, including costs of defense and reasonable attorney fees, arising from or related to KBUU’s use of the Property, including use by its guests, agents, patrons, invitees, customers, employees, officers, and contractors hired in connection with this license, except for liability resulting from the gross negligence or willful misconduct of the City, its employees and agents. KBUU shall promptly pay the amount of any judgment rendered against the City, its officers, employees and agents for any such indemnified claims, and reasonable costs and attorney fees incurred by the City in the defense of such claims. It is expressly understood and agreed that the foregoing provisions are intended to be as broad and inclusive as is permitted by the law of the State of California. The obligations of KBUU under this Section shall survive the expiration, cancellation, or termination of this Agreement and Term.
V. DAMAGE TO PROPERTY AND RESTORATION OF PROPERTY
A. KBUU assumes responsibility for all damage to the Property caused by, or related to, its use thereof, and shall reimburse the City for correction of any such damage.
B. Duty to Repair, Restore or Replace. Within five (15) days of the termination or expiration of this Agreement KBUU shall remove any remaining personal property and restore the property to the condition it was in prior to the execution of this agreement. If KBUU fails to remove such Property or restore the Property pursuant to the reasonable satisfaction of the Community Services Director, within this time frame it shall be liable for liquidated damages in the amount of $100 per day.
In such event, the City shall have the option of restoring the Property at KBUU’s expense. Any cost incurred by the City in so doing shall constitute a debt of KBUU to the City, recoverable by the City in any manner provided by law, and shall be in addition to any liquidated damages due.
VL iNSURANCE
A. During the term of the License, KBUU shall maintain in full force and effect, at its cost and expense, the following coverages and amounts of insurance. Any self-insured retentions must be declared to and approved by the City. City reserves the nght to require that self-insured retentions be eliminated, lowered, or replaced by a deductible, or require proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention through confirmation from the underwriter
I. Full replacement cost Property Insurance (written on a “special perils” basis) for the Property and all other personal Property, machinery, equipment and trade fixtures owned by the KBUU;
ii.Commercial General Liability Insurance, written on an occurrence basis, covering bodily injury (including death), personal injury, and property damage, with limits of not less than One Million Dollars ($1,000,000) per occurrence, $2,000,000 general aggregate, that includes coverage for contractual liability, independent contractors, premises/operations, products/completed operations, and cross liabilities/separation of insureds; KBUU shall consider its own insurance primary, and shall not seek contribution from similar insurance being maintained by the City. lii. Automobile Liability Insurance. KBLJU shall maintain automobile insurance in the amount not less than $500,000 per person and $1,000,000 per accident for bodily injury liability and up to $100,000 per accident for property damage liability. City shall require proof of coverage and limits and the insurance shall name the City as an additional insured. iv. Three Million Dollars ($3,000,000) in excess liability coverage per occurrence, for injuries, losses, claims for damages to persons or Property occurring on the Property, and resulting from the use of the Property by KBUU and/or the negligence of KBUU and its agents, contractors, employees or invitees, which coverage shall sit excess of the scheduled underlying General Liability, and Automobile Liability and Employer’s Liability Insurance policies with exclusions that are no more broad that those contained in the underlying policies. Such policy or policies shall include the following terms and conditions:
1. A drop-down feature requiring the policy to respond if any primary insurance that would otherwise have applied proves to be uncollectible in whole or in part for any reason, other than bankruptcy or insolvency of said primary insurer;
2. “Pay on behalf of’ wording as opposed to “reimbursement”;
3. Concurrency of effective dates with primary policies.
Such policy or policies shall include wording that the excess liability policy follows the terms and conditions of the underlying policies.
B. With respect to KBUU’s Commercial General Liability Insurance, Automobile Liability Insurance and Excess Liability Insurance, they shall include City as an additional insured with respect to liability arising out of KBUU’s use of the Property.
They shall be primary and non-contributing with any other insurance available to City and shall contain a full waiver of subrogation clause.
VH. MISCELLANEOUS
A. Taxes. This Agreement may create a taxable property interest in the Property. KBUTJ is solely responsible for the personal Property, possessory interest, income, franchise and similar taxes imposed on the Property up to and including the date of expiration, termination or cancellation of this Agreement and Term.
B. Notices. All notices permitted or required under this Agreement shall be in writing, and shall be deemed made when delivered to the applicable Party’s representative as provided in this Agreement. Additionally, such notices may be given to the respective Parties at the following addresses, or at such other addresses as the parties may provide in writing for this purpose. Such notices shall be deemed made when personally delivered or when mailed forty-eight (48) hours after deposit in the U.S. mail, first-class postage prepaid, and addressed to the party at its applicable address, as follows:
KBUU: Hans Laetz, General Manager
6402 Surfside Way
Malibu, CA 90265
TEL (424) 442-9862
CITY: Steve McClary
City Manager
City of Malibu
23825 Stuart Ranch Road Malibu, CA 90265-4861
TEL (310) 456-2489 x 226
FAX (310) 456-2760
Each party may change its address for notice by giving notice thereof to the other party.
C. Entire Agreement / Modification. This Agreement supersedes any and all other agreements, either oral or written, between the parties pertaining to the subject matter hereof, and contains all of the covenants and agreements between the Parties. Each Party to this Agreement acknowledges that no representations, inducements, promises, or agreements, oral or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein. Any agreement, statement, or promise not contained in the Agreement, and any modification to the Agreement, will be effective only if signed by both Parties.
D. Authority. Each of the persons signing this Agreement represents and warrants that they have authority to bind the party for whom they are signing.
E. Compliance with Applicable Law. KBUU and the City shall comply with all applicable laws, ordinances and codes of the Federal, State, County and City governments F. Assignment. This Agreement is binding on and inures to the benefit of the Parties and their respective heirs, successors, assigns, and personal representatives. Neither Party may assign its rights and obligations in and under this License without first obtaining prior written consent of the other Party, which shall not be unreasonably withheld.
G. Independent Contractor. This Agreement is by and between the City and KBUU and is not intended, and shall not be construed, to create the relationship of agency, servant, employee, partnership, joint venture or association, as between the City and KBUU or any of KBUU’s agents or employees.
H. Governing Law. This Agreement shall be governed by and interpreted in accordance with the internal laws of the State of California without giving effect to conflict of law rules. The Parties further agree that all actions brought under this Agreement shall be brought in the courts located in Los Angeles County.
I. Force Majeure. Neither Party is responsible for any delay or failure in performance of any part of this Agreement to the extent that delay or failure is caused by fire, flood, explosion, war, embargo, government requirement, civil or militaiy authority, act of God, act or omission of carriers or other similar causes beyond the Party’s control.
J. No Waiver. The failure of a Party to insist on strict performance of any provision of the Agreement does not constitute a waiver of, or estoppel against asserting, the right to require performance In the future. A waiver or estoppel given in any one instance does not constitute a waiver or estoppel with respect to a later obligation or breach.
K. No Third Party Beneficiaries. This Agreement does not confer any rights or remedies on any person other than the Parties and their respective successors and permitted assigns.
L. Remedies. The rights and remedies provided by this Agreement are cumulative, and the use of any right or remedy by any Party does not preclude or waive its right to use any or all other remedies. These rights and remedies are given in addition to any other rights a Party may have under ~pp1icable I~w, in equity or otherwise.
M. Severability. If any term of this Agreement is held by any court of competent jurisdiction to contravene, or to be invalid under, the laws of any political body having jurisdiction over this subject matter, that contravention or invalidity shall not invalidate the entire Agreement.
Instead, this Agreement shall be construed as reformed to the extent necessary to render valid the particular provision or provisions held to be invalid, consistent with the original intent of that provision and the rights and obligations of the Parties shall be construed and enforced accordingly, and this Agreement shall remain in full force and effect as reformed.
N. Counterpart Execution. This Agreement may be executed in any number of counterparts with the same effect as if all the Parties had signed the same document; all counterparts shall be construed together- and shall constitute one and the same instrument. The delivery of an executed counterpart to this Agreement by electronic means (including via email) shall be as effective as the delivery of a manually executed counterpart.
0. Construction. The headings in this Agreement are inserted for convenience and identification only. When the context requires, the number of all words shall include the singular and the plural. In this Agreement, words importing any gender include the other genders and the words including, includes and include shall be deemed to be followed by the words without limitation. All documents or items attached to, or referred to in, this Agreement are incorporated into this Agreement as fully as if stated within the body of this Agreement. The Agreement expresses the mutual intent of the Parties to this Agreement and the rule of construction against the drafting Party has no application to this Agreement.
Th.is Agreement is executed on October 23, 2023, at Malibu, California, and effective as of October 23, 2023
ATTEST
KELSEY PETTIJOHN, City Clerk
(seal)
THIS DOCU IENT HAS BEE REVIEWED
BY THE CITY A TTOR EY'S OFFICE
CITY OF MALIBU:
STEVE UHRING, Mayor
KBUU:
EXHIBIT A
KBUU will install the following components at the Maintenance Building at Malibu Bluffs Park:
1. A 28-foot mast with two identical antennae reaching four and a half feet to each side of the mast located on the south side of the building;
2. Two to three small solar collectors with batteries near the base of the mast to be used to power the booster antennae during emergencies and Public Safety Power Shutoffs (PSPS);
3. A 19-watt transmitter inside the Parks Maintenance Building; and
4. A communications dish, three feet in diameter, on the exterior wall of the Parks Maintenance Building.
5. A 9-inch diameter wireless Internet dish attached to the top of the Michael Landon Center and a similar dish on the Parks Maintenance Building to provide internet access and telemetry to the transmitter.
Ma of Park and location of mast
‘ ‘. ~MeSal~ _
Mock u of where the mast would be installed
Agenda Item # 6.B.
Council Agenda Report
To: Mayor Uhring and the Honorable Members of the City Council Prepared by: Alexis Brown, Deputy City Manager
Approved by: Steve McClary, City Manager
Date prepared: October 27, 2023, Meeting date: November 13, 2023 Subject: Resolution No. 23-51 Authorizing One-Time Winter Closure of City Hall
RECOMMENDED ACTION: Adopt Resolution No. 23-51 authorizing the one-time closure of City Offices for the designated period of Friday, December 22, 2023, through Monday, January 1, 2024.
FISCAL IMPACT: There is no fiscal impact associated with the recommended action.
STRATEGIC PRIORITY: This item supports the Malibu Culture Project priority identified in the Adopted FY 2023-24 Strategic Priority Project List.
DISCUSSION: On September 27, 2023, the Malibu City Council adopted a new Strategic Work Plan identifying 20 items as “Priority Projects.” Under the core focus of Top Workplace Culture-Recruitment and Retention, the main project identified as Malibu Culture highlighted several key areas such as recruitment and retention, workplace morale and employee culture. Among the actionable items presented to the City Council, staff received direction to move forward with a Winter Closure for a designated time period of one week during the month of December.
The proposed resolution would authorize a one-time closure to take place during the designated time period of Friday, December 22, 2023, through Monday, January 1, 2024. During this time period, there has traditionally been very low levels of foot traffic and communication being received at City Hall. The level of services provided to the Malibu Community is not expected to be impacted by the closure in a significant way.
Essential Operations will continue to be staffed appropriately on either an on-call, or rotational schedule. For the purposes of this resolution, essential operations are defined as (scheduled) building inspections, code enforcement site visits, park maintenance, City Council Meeting
11-13-23
Item
6.B.
Agenda Item # 6.B.
street maintenance, public safety monitoring, and those recreational programs currently scheduled. Public facing services such as the City Clerk’s Office will be routinely monitored remotely to ensure compliance with the Public Records Act. All emergency response operations will remain in place and not be impacted.
It is recommended that the City Council approve paid leave for employees during the designated time period and not impact individual accruals. For those employees who are required to work as part of the essential operations previously identified, the hours will be accrued to be used at a future date. Employees will be allowed to use this time before the end of the fiscal year (June 30, 2024) upon the coordination and approval of their supervisor.
Emergency Response personnel such as Los Angeles County Sherrif and Fire Departments are not subject to the one-time closure.
ALTERNATIVES:
The alternative is to close City Hall for the designated period of Friday, December 22, 2023, through Monday, January 1, 2024, and have staff use time out of their own accrual banks.
Second Alternative is to keep City Hall Open and follow Holiday Closures as identified in Section 2.04.030 of the Malibu Municipal Code.
ATTACHMENTS:
1. Resolution No. 23-51
2. FY 2023-24 Strategic Work Plan
RESOLUTION NO. 23-51
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF MALIBU
CALIFORNIA, APPROVING A ONE-TIME CITY HALL “WINTER”
CLOSURE FROM DECEMBER 22, 2023, THROUGH JANUARY 1, 2024.
The City Council of the City of Malibu does hereby find, order and resolve as follows:
SECTION 1. Recitals.
A. The City of Malibu elects to implement a Winter Closure for the period of Friday, December 22, 2023, through Monday, January 1, 2024, which will result in City Offices and other non-essential City of Malibu Operations being closed to the public during the identified closure period.
B. The designated closure period includes the following days where City Offices are scheduled to be closed pursuant to Malibu Municipal Code § 2.04.030: Christmas Eve ½ Day; Christmas Day; New Year’s Eve ½ Day; and New Year’s Day.
C. The City of Malibu shall provide employees with paid leave for the additional days during the selected closure period and shall not impact employees individual leave banks.
D. The City Council instructs the City Manager to provide adequate notification to Malibu residents and customers informing them of the closure, through Social Media Platforms, and Closure notices posted at City Hall and all City facilities.
E. The City Council recognizes employees staffed in essential-services that are required to be open for business are exempt from this resolution and may coordinate with supervisors for scheduling time off at future date by or before June 30, 2024.
F. The City Council understands that employees staffed in public safety positions will continue public safety monitoring during the closure.
SECTION 2.
A. The above recitals are true and correct and are incorporated herein by this reference.
B. The City Council of the City of Malibu hereby authorizes the one-time closure of City Hall for the period of December 22, 2023, through Monday, January 1, 2024.
C. The City of Malibu will provide paid leave to all employees for the designated closure period and shall not impact employee accruals.
D. Employees assigned to work during the Winter Closure due to essential operations may accrue holiday bank hours to use at a future date, but no later than June 30, 2024, upon coordination and approval by their supervisor.
E. For the purposes of this resolution, Essential Operations are defined as Building and Safety Inspections, Code Enforcement, Park Maintenance, Public Works Maintenance, Recreation Program facilitation, and any other operations designated by the City Manager.
Attachment #1
Resolution No. 23-51
_____________________
SECTION 3. The City Clerk shall certify to the passage and adoption of this resolution and enter it into the book of original resolutions.
PASSED, APPROVED, and ADOPTED this 13th day of November 2023. _____________________________
STEVE UHRING, Mayor
ATTEST:
__________________________________
KELSEY PETTIJOHN, City Clerk
(seal)
APPROVED AS TO FORM:
__________________________________
TREVOR RUSIN, Interim City Attorney
MALIBU PRIORITY PROJECT LIST 1
TITLE DEPT Team Members (Lead in BOLD) NARRATIVE Timeline (Next 6 Months) Core Focus Day To Day
Operations All All Top Focus of All Staff - Must be supported and completed before the rest of the priority list Top Workplace Culture - Recruitment and Retention
Malibu Culture - Providing values guidance for all Council, Commission, and staff for behavior and treatment. Clarify roles and scope of Commissions and confirm how new work items can be generated.
All
Steve, Joe, City Council Sub Committee
Providing values guidance for all Council, Commission, and staff for behavior and treatment. Clarify roles and scope of Commissions and confirm how work items can be generated. Develop code of behavior - values to ensure there is a standard for treating one another in a kind and professional manner. This group would also clarify the roles of Commissions and the process for new Commission ideas and projects to be reviewed and approved or not approved.
City Values Statement/Code of Conduct - Subcommittee recommended to be formed Sept 27, Staff with two Council members to develop Commissions role/scope/training draft plan for Jan 22 CC Meeting Top Workplace Culture - Recruitment and Retention
Staff Compensation and Benefits- Class Comp Study - Including Staffing Benefits All
Joe Toney, MS Staff, DH's
Classification and compensation studies review internal equity (pay relationships between positions) and external competitiveness (pay relationships with labor market competitors). HR staff will conduct a comprehensive classification and compensation study. Also review list of recommended staff benefits and get priority list for Council review and Approval January 22 CC meeting - Comp and Classification Study present recommendations.September 27 CC meeting - Staff developed Benefits - gain CC approval of final list of recommended staff benefits
PRESERVE MALIBU'S RURAL RESIDENTIAL CHARACTER
School District Separation
MS Marianne and
Paul, Steve McClarey, Alexis Brown, BBK Team,
Pursuit of creating a Malibu School District by separating from the Santa Monica School District Next Mediation Date: October 23 Update to City Council: November 23
PRESERVE MALIBU'S RURAL RESIDENTIAL CHARACTER
Master Plan for City Owned Vacant Lots
MS/PL Alexis Brown,
Joe Toney, Richard M
To Happen Simultaneously: RFP & Selection of Community Outreach Firm, Launch of Community Outreach/Review & Update Previous Development Assessment. Prepare for Geo Technical Studies based on Results of community outreach.
Develop RFP, Release by October 15 and Award - November 13 CC Meeting Deadline: March 2024 Attachment 2
MALIBU PRIORITY PROJECT LIST 2
PRESERVE MALIBU'S RURAL RESIDENTIAL CHARACTER
Housing Element 6th Cycle RHNA & 2021 Housing Element Update PL Richard M,
Adrian, Joyce ParkerBozylinski (Consultant)
Complete final steps to have Housing Element Approved by HCD/State Need to respond to incomplete letter. Currently gathering additional information. Meeting on August 30th with HCD to go over completion timeline. TBD what additional work is needed.
Public Safety Public Safety
Projects - Key Public Safety Projects
PS Susan Duenas,
PS team members
Hazard Tree Removal Program – Complete scheduled hazard tree removals and pursue additional funding.Home Ignition Zone Assessments – Complete scheduled Home Ignition Zone Assessments and promote program.Firewise Community Program – Encourage and assist Malibu neighborhoods to become Firewise Communities (mitigates fire risk and provides discount on insurance).ALPR cameras – Finish installing solar powered ALPR cameras on Edison poles and then begin process to have them hardwired.Emergency Plan Updates – Work with consultants to update the Emergency Operations and Hazard Mitigation Plans and bring to City Council for adoption. (both are required for disaster reimbursement)EOC equipment – Test all EOC equipment and update as needed.EOC training – Provide basic and advanced Emergency Operations Center (EOC) training for all staff, and host pre- fire season meeting with partner agencies.Encampment Management – Work with the Sheriff’s Department to ensure encampments are cleared from the hillsides.Emergency Supply Bins – Ensure that all community emergency supply bins are organized and stocked appropriately and Information Stations are ready to be deployed.Communications – Test all current communication capabilities, including disaster notifications systems, satellite phones and radios, work with KBUU to expand broadcast radio capabilities, and develop and train staff on communication procedures. Sheriff Substation - Increased staffing and telecommunications for Substation at Santa Monica College Hazard Tree Removal Program 9/31/23 – Complete program10/31/23 – Submit grant reimbursement requestHome Ignition Zone Assessments3/31/24 – Complete 40 assessmentsFirewise Community Program 12/31/23 – Identify two neighborhoods that are interested3/31/24 – Assist two neighborhoods in becoming certified ALPR cameras 10/31/23 – Complete an agreement with Edison to place cameras on their poles12/31/23 – Install all solar powered cameras slated for Edison poles1/31/24 – Establish work plan to convert solar powered cameras to hardwire camerasEmergency Plan Updates 10/31/23 - Conduct community input meeting on the Draft Hazard Mitigation Plan (HMP)11/30/23 – Receive, review and provide feedback on first draft of updated Emergency Operations Plan (EOP)12/31/23 - Receive and provide feedback on draft HMP. Receive updated EOP for final review.1/31/24 - Receive updated HMP for final review. Take EOP to Disaster Council for approval2/29/24 – Take EOP to City Council for approval. Submit to HMP to FEMA for approval3/31/24 - Agendize item to have City Council approve HMPEOC equipment 12/31/23 – Secure a consultant to assist in building out EOC management system (DLAN)3/31/24 – Complete build out of EOC management systemEOC training 10/31/23 – Provide an EOC exercise for all City staff11/30/23 – Host Fire Season meeting with partner agenciesEncampment Management 10/31/23 – Clear all hillside encampments within the City. Emergency Supply Bins 1/31/24 – Update supplies in the Trancas, Point Dume and Malibu High bins3/31/24 – Update supplies in the Webster, City Hall and Las Flores binCommunications 10/31/23 – Establish MOU and Agreement with KBUU for emergency communications12/31/23 – Secure vendor to install mast at Bluff’s Park for KBUU booster antenna. Test all satellite phones and City radios3/31/24 – Complete installation of KBUU booster antennaSheriff Substation 12/31/23 – Staff the Sheriff’s Substation3/31/24 – Evaluate staffing at Substation and identify any deficiencies
EFFICENT AND EFFECTIVE CITY SERVICES
Development Services Report - Implementation
MS/PL/ES
D/PW
Joe Toney, Richard M, Yolanda B, Rob D,
Received Consultant Report. Present to City Council, develop implementation plan, assign resources and timelines for implementation tasks.
Implementation Plan from consultant is currently under review. Intend to provide update to Council by end of October. Work is already underway that includes internal staff training session, interdepartmental workflow improvement discussions, and new workflow software acquisition (BlueBeam).
MALIBU PRIORITY PROJECT LIST 3
EFFICENT AND EFFECTIVE CITY SERVICES
Development Services Updated Software - 1st stage Blue Beam, 2nd stage Land Management System
PL/PW/ES
D/MS (IT)
Joe Toney, Richard M, Yolanda B, Rob D,
Implementation of Blue Beam software to support streamlined digital Plan submission and processing. To be completed this fall. Later focus on implementing a new Land Management System (LMS). This LMS will allow efficient data entry of information required for permit issuance and plan review. Additionally, the public will be able to view project statuses. Once implemented, the program will significantly reduce staff time to issue permits, complete plan review, and research projects, thereby increasing the overall efficiency of the department.
BlueBeam agreement to be signed. Consultant to work with staff to design BlueBeam workflows starting Oct 1. Timeline to complete workflow design and set up training for staff to be confirmed and update later in October.
PRESERVE MALIBU'S RURAL RESIDENTIAL CHARACTER
Malibu High School CDP
PL Richard M,
Adrian
Coastal Commission to Hear CDP in Sept 8th meeting for potential code amendments. Planning Commission to consider Phase 1 Coastal Development Permit September 5th. If Coastal approves code amendments on Sept 8th then will bring to City Council at October 9th meeting. 2nd reading to happen October 23 CC meeting Coastal Commission heard CDP in Sept 8th Coastal Comm meeting for potential code amendments. Planning Commission to consider Phase 1 Coastal Development Permit September 5th PC meeting. If Coastal approves code amendments on Sept 8th Coastal Comm meeting then will bring to City Council at October 9th CC meeting. 2nd reading to happen October 23 CC meeting
PRESERVE MALIBU'S RURAL RESIDENTIAL CHARACTER
Permanent Skate Park Design - Approval
CS/PL/PW Kristin, Tyler,
Rob D.
Skatepark Preliminary Design and site amenities were recommended by the Parks and Recreation Commission for approval by the City Council. Staff will process the CDP application and EIR documents before construction of the project begins.
Present completed EIR to Environmental Review Board by December 2023, Following ERB approval, Planning Commission will review and approve final design. Feb 2024 Council will review final design, designate funds and approve final project. March 2024 staff will work with skatepark designer, California Skateparks, to complete irrigation plan and finalize construction documents.
PRESERVE MALIBU'S RURAL RESIDENTIAL CHARACTER
Accessory Dwelling Unit (ADU) Ordinance
ESD/PL Richard, Tyler,
Joyce (Consultant)
In September 2018, the Planning Commission held a public hearing on this item, provided its recommendation on the draft ordinance, and directed staff to come back with a final recommendation. In Fiscal Year 2019-2020, the Planning Commission hearing on the updated draft ordinance was postponed in order to address changes in State law that became effective January 1, 2020. During Fiscal Year 2020-2021, staff incorporated the guidance received from the California Coastal Commission (CCC) and State into a draft ordinance which will be presented to the Planning Commission and City Council. In Fiscal Year 2021-2022, the City received a Local Early Action Planning (LEAP) grant to implement technological improvements to streamline the ADU permit application process. In Fiscal Year 2022-23, staff will submit the Local Coastal Program Amendment (LCPA) to the CCC for certification and monitor the progress of the LCPA review by the CCC. Staff will also administer and implement the LEAP grant. ESD: SB 897: Accessory Dwelling Units (ADU) / Junior Accessory Dwelling Units (JADU). Effective in 2023, SB 897 prohibits a local agency from denying a permit for an ADU due to nonconforming zoning conditions, building code violations, or unpermitted structures that do not present a threat to public health and safety. It also prohibits the denial of a permit for an unpermitted ADU that was constructed prior to January 1, 2018, due to a violation of building standards unless the local agency makes a finding that correcting the violation is necessary to protect the health and safety of the public or occupants of the structure. SB 897 states that the construction of an ADU cannot have a Group R Occupancy Change under the local building code unless the enforcement agency makes a written finding based on substantial evidence in the record that the construction of an ADU could have a specific, adverse impact on public health and safety. SB 897 also states that the construction of an ADU on a property does not trigger a requirement for fire sprinklers in the proposed or existing primary dwelling. Finally, the bill requires a permitting agency to approve or deny an application for an ADU or JADU within 60 days of receiving the application.
The draft ADU ordinance was presented to the Council on September 11, 2023 and the Council provided feedback to staff. Staff is currently working on that feedback and anticipates to return to the Council by January 2024. Then submit to HCD and Coastal Program amendments will be submitted to the California Coastal commission.
MALIBU PRIORITY PROJECT LIST 4
ENHANCE ENVIRONMENTAL EFFORTS / PROTECT AND IMPROVE WATER RESOURCES Coastal Vulnerability Assessment
ESD/PL Yolanda In September 2019, Council awarded a professional services contract for the development of a coastal vulnerability assessment. ESD staff and its coastal engineering consultants are working to perform an assessment of vulnerabilities along the local shoreline due to erosion and sea level rise to help inform City planning efforts by identifying impact thresholds at which significant planning areas, assets or coastal resources could be impacted by sea level rise. The consequence of the identified impacts will also inform City policies and programs to help minimize risk to important infrastructure, basic services and valuable resources. The vulnerabilities and consequences identified in this assessment will be used to facilitate prioritizing planning efforts to account for the urgency (time horizon) of each impact, and the importance of each impact on the community and resources. The first planned public workshop to solicit community input was postponed due to COVID-19. Due to the delay of the workshops, the Coastal Vulnerability Assessment agreement was extended to 10/01/23; however, the consultants remain on hold while staff internally reviews draft documents.
Sept 11 CC Meeting- Agreement Extension brought for approval. Outreach material to be released upon agreement approval. Public workshop to be conducted by Feb 2024.
PRESERVE MALIBU'S RURAL RESIDENTIAL CHARACTER
Exterior Elevated Elements (SB 326)
ESD Yolanda Exterior Elevated Elements. SB 326 (Civil Code Section 5551) requires Associations and multifamily properties to conduct regular inspection of balconies and other exterior structural elements supported by wood or wood-based products. Commonly referred to as the “balcony bill,” exterior elevated elements must be evaluated, inspected, and repaired, if necessary. Any Association with three or more dwelling units in a building must comply with this law. The reason for SB 326 was a tragic accident that claimed six lives and injured several others due to the failure of building components. The State seeks to prevent future injuries and loss of life.
Set up implementation steps for a City program. Begin education and outreach to the Community over first 6 months of 2024
ENHANCE ENVIRONMENTAL EFFORTS / PROTECT AND IMPROVE WATER RESOURCES Update Geotechnical and Coastal Engineering Guidelines
ESD Yolanda Update the City’s Geotechnical and Coastal Engineering Guidelines. Staff will work with the City’s geotechnical consulting firm to update the existing Geotechnical Guidelines to be consistent with new 2023 codes and ordinances and the standard of care in the geotechnical industry.
Work with coastal engineering consultants to complete draft guidelines. Release guidelines to public for comments by Feb 2024
FISCAL SUSTAINABILITY AND TRANSPARENCY
Finance Operations - Fee Schedule Update
MS Joe T, Renee, The City derives its annual revenue from a number of sources, one type of which is user and regulatory fees. User and regulatory fees are intended to cover all or portion of the costs incurred by the City for providing fee-related services and activities that are not otherwise provided to those not paying the fee. The last time a study was conducted was June 2015. Finance staff will conduct a comprehensive fee study in order to update the fees.
RFP closed Aug 2023, review and select firm, likely award by the November 13th Council meeting for approval ($25k+)
EFFICENT AND EFFECTIVE CITY SERVICES
Information Technology Strategic Plan Implementation
MS Joe T, Rob H,
Mario, Mahan, Ian
RFP sent out to have a consulting firm provide an organization wide IT Strategic Plan. Selected firm will meet with all stakeholders, review current IT infrastructure and configuration and provide recommendations for improvement.
October 23 CC meeting - Bring Consultant contract for award. November 2023 - April 2024 consultant will research, investigate, and interview to prepare a complete IT strategic plan for CC presentation by April 2024
PRESERVE MALIBU'S RURAL RESIDENTIAL CHARACTER
Malibu Community Labor Exchange Permanent Office
MS/PW/PL Rob H, Adrian,
Rob D, MCLE, Alexis
Complete Wastewater allocation transfer, CDP and CUP processing, get foundation designed, develop specs for modular office build for RFP bid, coordinate with SMC and County to connect their underground utilities. Work with MCLE and CDBG to obtain Revolving Loan to cover construction costs Present Update - Oct 23 CC meeting. Wastewater allocation to be presented at Oct 23 CC meeting. Foundation design to be completed by mid of October. RFP for manufactured Office to be released by November 30 MALIBU PRIORITY PROJECT LIST 5
ENHANCE ENVIRONMENTAL EFFORTS / PROTECT AND IMPROVE WATER RESOURCES Civic Center Water Treatment Facility - Phase Two (CCWTF)
PW/MS/PL/ESD
Rob D The construction of CCWTF Phase One was completed in Fiscal Year 2018-2019. The design of Phase Two began in Fiscal Year 2019-2020. Phase Two expands the wastewater collection and recycled water system to include properties in Malibu Colony, the condominiums on Civic Center Way, HRL Laboratories, and a portion of the Serra Canyon neighborhood. In addition, the treatment plant will be expanded to treat the additional wastewater from these properties. The work will include preparing a CDP, construction plans, project specifications and cost estimates. In order to meet the currently mandated completion date of 2024, the project would need to begin construction in 2022. In February 2022, Council directed staff to seek an extension to the MOU between the City and the Regional Board regarding the implementation of Phase 2. The City sent a letter to the Regional Board seeking an 8-month time extension. In addition, an assessment district will need to be formed to fund the project in Fiscal Year 2022-23. To help fund the project, staff is seeking grants and low interest loans.
Project delayed do to requirement to develop a cultural resource monitoring plan. The City and State Water Board will work on plan and anticipate plan completion by mid 2024.
PRESERVE MALIBU'S RURAL RESIDENTIAL CHARACTER
PCH Signal Synchronization Project
PW Rob D. This project will install communication between the existing traffic signals on PCH, from Topanga Canyon Road to John Tyler Drive, and connect the signals back to the Caltrans Traffic Management Center, allowing Caltrans to control and operate the signals and the signal system remotely. The City acquired consultants and is managing the design, the permit process with Caltrans, and the construction phase of the project. Funding for the design and construction of this project is provided through Measure R funds administered by LA Metro.
Awaiting delivery of critical items. Expect completion of conduit installation by Feb 2024
Agenda Item # 6.C.
Council Agenda Report
To: Mayor Uhring and the Honorable Members of the City Council Prepared by: Trevor Rusin, Interim City Attorney
Approved by: Steve McClary, City Manager
Date prepared: October 30, 2023 Meeting date: November 13, 2023 Subject: Consideration of Declaration of Emergency Regarding Conditions on PCH
RECOMMENDED ACTION: Adopt Resolution No. 23-52 declaring the existence of a local emergency.
DISCUSSION: This item will be distributed under separate cover.
City Council Meeting
11-13-23
Item
6.C.
Agenda Item # 6.C.
Supplemental
Council Agenda Report
To: Mayor Uhring and the Honorable Members of the City Council Prepared by: Trevor Rusin, Interim City Attorney
Date prepared: November 9, 2023 Meeting date: November 13, 2023 Subject: Consideration of Declaration of Emergency Regarding Conditions on PCH
RECOMMENDED ACTION: Adopt Resolution No. 23-52 declaring the existence of a local emergency.
FISCAL IMPACT: There is no fiscal impact associated with the recommended action.
STRATEGIC PRIORITY: This item is part of the day-to-day operations identified in the Adopted FY 2023-24 Strategic Priority Project List.
DISCUSSION: On October 23, 2023, the City Council directed staff to return with an item declaring a state of local emergency related to the increase in reckless and illegal driving on PCH and options for related action.
1. Declaration of Emergency Aimed at Reducing the Risk of Dangerous, Illegal, Reckless and/or Distracted Driving on Pacific Coast Highway in the City.
The California Emergency Service Act allows the City to proclaim a local state of emergency when needed to protect the public safety in dire circumstances. The status and use of Pacific Coast Highway (“PCH”) currently constitutes a condition, or threatened condition, of extreme peril to the safety of persons and property within the City of Malibu. PCH is the City’s main thoroughfare and each day serves as a commuting route, a residential street, a business corridor, and for persons accessing beaches and other local recreation amenities, a pathway used by pedestrians and cyclists. PCH is a California State Highway (State Route 1) that is managed and maintained by the California Department of Transportation (“Caltrans”) with a posted speed limit ranging between 40-55 miles per hour in the City. Excessive speeding, reckless driving, unsafe U-turns, and distracted driving caused by cell phone use and City Council Meeting
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Agenda Item # 6.C.
other distractions have resulted in increased collisions with other motorists, cyclists and pedestrians on PCH that have resulted in injury and death.
According to data from the Statewide Integrated Traffic Records System obtained through UC Berkley’s Transportation Injury mapping System, between 2018 and 2022 there were 22 deadly crashes on PCH in the City, resulting in the death of 23 people.
Data from the California Highway Patrol, indicates that there have been 49 fatalities along PCH in Malibu from 2012-22. And finally, the Los Angeles Times has reported that there have been 170 combined deaths and serious injuries to drivers, passengers, cyclists and pedestrians between 2011 and 2023 along PCH in the City. Further, countless other close calls or near misses from the danger posed by the conduct on PCH are impossible to quantify. Most recently, a crash occurred on PCH resulting in the tragic and unnecessary loss of four Pepperdine University students who were walking along PCH. According to authorities, the driver of the car was allegedly traveling at a speed in excess of 100 miles per hour when his vehicle lost control, sideswiped at least three parked cars and then crashed into a group of people including the four Pepperdine University students and two others.
These statistics and most recent tragedy are all consistent with the day-to-day experience of City residents, visitors, officials, and staff. PCH has become increasingly dangerous to residents and visitors due to the common occurrence of drivers speeding, driving recklessly, or driving while distracted. Residents and visitors are now forced to weigh and modify their use of PCH depending on the time of day and other factors (e.g., weather, weekend vs. weekday, existing traffic conditions, etc.) because of the danger posed. Despite efforts by the City and other governmental agencies to improve the safety of PCH, the point has been reach that the risk is just too great. The status quo is no longer acceptable and action must be taken to mitigate this local emergency.
2. Control/Enforcement of PCH and the Local Emergency
PCH is a State Highway managed and controlled by Caltrans. Sections 83 and 90 of the Street and Highways Code state that Caltrans has jurisdiction, possession, control and responsibility for the maintenance of State Highways. Further sections of the Streets and Highways Code make clear that Caltrans is the entity with decision-making power over PCH in the City, including improvements, safety elements and speed limits. Further, Streets and Highway Code section 124 states that it is Caltrans, not the City, that can restrict the use of, or close, a State Highway for the protection of the public. Law enforcement agencies such as the Los Angeles County Sheriff’s Department (LASD) and the California Highway Patrol have enforcement jurisdiction over PCH for Vehicle Code violations and other code violations.
Safety on PCH is a problem that the City cannot address and fix alone, and will need to work with Caltrans to make changes to PCH itself. The City can also work through the LASD to address vehicle code violations and related enforcement action given its enforcement jurisdiction over PCH. To effectively effect change, the City will need to
Agenda Item # 6.C.
coordinate and work together with its other governmental partners to implement strategies and solutions to reduce the danger on PCH for all users.
3. Next Steps and Impacts of Declaring Local Emergency
California Government Code Section 8630 empowers the City Council to proclaim the existence of a Local Emergency when there is extreme peril to the safety of persons and property within the territorial limits of the City. Additionally, California Government Code section 8634 empowers the City Council to promulgate orders and regulations necessary to provide for the protection of life and property during the time of a Local Emergency.
These statutes codify the constitutional “police powers” of local governments to adopt local legislation designed to protect the health, safety, and welfare of the community.
Further, the City’s Municipal Code (Chapter 2.52) establishes the City’s disaster council and policies and procedures for dealing with a local emergency. The City’s purchasing ordinance (Chapter 2.56) allows for greater flexibility when making purchases for supplies or services in response to a local emergency. Thus, a declaration of local emergency will, among other things, provide the City greater flexibility to act expediently when trying to address and mitigate the danger posed by the local emergency. It may also aid in coordination with other governmental entities and allow the City access to other resources.
Regarding physical changes to PCH and its infrastructure and speed limits, the City will need to work with Caltrans to effect change. Potential measures include installing speed cameras for enforcement (if state authorization is obtained) or for analysis, considering redlight cameras, adjusting speed limits, making changes to the signal sync project designed to change lights if speeding is detected, and designating sections of PCH as a safety corridor (which would give more flexibility to increase fines and lower speed limits, and potentially lead to more resources brought in to increase safety). City staff has already raised some of these issues with Caltrans and state/local authorities.
The City can also increase enforcement of vehicle code regulations and increase patrols and resources on PCH to address traffic violations. This can be done through conversations with, and increased resources provided to, LASD under our current contract, and/or working with the California Highway Patrol. City Staff have been working with both of these agencies and anticipate bringing further updates and proposals to the City Council soon.
In addition, the City can also implement an educational campaign. Raising awareness of the dangers of certain behaviors and providing education on safer driving techniques and practices, as well as reaching out to cyclists and pedestrians via an educational campaign can also effect real change in the behavior of users of PCH and increase safety.
Agenda Item # 6.C.
ENVIRONMENTAL REVIEW:
This resolution and the actions taken and/or proposed herein are not a project pursuant to the California Environmental Quality Act (CEQA) since they are activities that are excluded from the definition of a project by section 21065 of the California Public Resources Code and section 15378(b) of the State CEQA Guidelines. The proposed actions are organizational or administrative activities of government which will not result in direct or indirect physical changes in the environment. These actions are also exempt from CEQA as specific actions necessary to prevent or mitigate an emergency pursuant to section 21080(b)(4) and section 15269(c) of the State CEQA Guidelines. They also are exempt under CEQA Guidelines Section 15301 – existing facilities. Coordinating and improving infrastructure and safety as well as education and enforcement efforts for safer driving and use of PCH are all exempt activities. Further, to the extent there are minor/temporary uses of land having a negligible or no permanent effect on the environment, these activities are exempt under Section 15304(e) of the CEQA Guidelines.
ATTACHMENTS:
1. Resolution No. 23-52
RESOLUTION NO. 23-52
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF MALIBU
DECLARING THE EXISTENCE OF A LOCAL EMERGENCY RELATED TO
THE INCREASE OF RECKLESS AND ILLEGAL DRIVING ON PACIFIC
COAST HIGHWAY AND DIRECTING STAFF TO COORDINATE EFFORTS
WITH OTHER GOVERNMENTAL AGENCIES TO INCREASE ATTENTION
AND CREATE PROGRAMS TO REDUCE THE RISK AND DANGER
ASSOCIATED WITH PACIFIC COAST HIGHWAY IN THE CITY
The City Council of the City of Malibu does hereby find, order, and resolve as follows:
SECTION 1. Recitals.
A. Condition or threatened conditions of extreme peril to the safety of persons and property have arisen within the City of Malibu caused by the increase in reckless and illegal driving on Pacific Coast Highway (“PCH”) in the City. This reckless and illegal driving has led to increased collisions with other motorists, cyclists and pedestrians, resulting in injury and death.
B. According to data from the Statewide Integrated Traffic Records System obtained through UC Berkley’s Transportation Injury mapping System, between 2018 and 2022 there were 22 deadly crashes on PCH in the City, resulting in the death of 23 people. According the data from the California Highway Patrol, there have been 49 fatalities along PCH through Malibu from 2012-22. According to the Los Angeles Times there have been 170 deaths and serious injuries to drivers, passengers, cyclists and pedestrians between 2011 and 2023.
C. On October 17, 2023, a crash occurred in the 21500 block of PCH resulting in the tragic loss of four Pepperdine University Students who were walking along the road. According to authorities, the driver of the car was traveling at a speed in excess of 100 miles per hour when he lost control, sideswiped at least three parked cars and then crashed into a group of people including the four Pepperdine University Students and two others.
D. PCH is a California State Highway managed and maintained by the California Department of Transportation (“Caltrans”). The posted speed limit along PCH in the City ranges between 40-55 miles per hour.
E. PCH is the City’s main thoroughfare and serves as a commuting route, a residential street and business corridor in the City.
F. City officials, City staff and City residents have noticed that PCH has become increasingly dangerous to residents, visitors and commuters, with drivers regularly exceeding the posted speed limits or driving recklessly or distracted which has resulted in not only the killing and maiming of pedestrians, cyclists and other motorists, but a collective fear and trauma about the risks posed by accessing PCH.
Attachment 1
Resolution No. 23-52
_____________________
G. Despite efforts by the City and other governmental agencies to improve the safety of PCH. PCH continues to pose a threat to those who drive, walk and/or cycle along it.
H. California Government Code Section 8630 empowers the City Council to proclaim the existence of a Local Emergency when there is extreme peril to the safety of persons and property within the territorial limits of the City. Additionally, California Government Code Section 8634 empowers the City Council to promulgate orders and regulations necessary to provide for the protection of life and property during the time of a Local Emergency. These statutes codify the constitutional “police powers” of local governments to adopt local legislation designed to protect the health, safety, and welfare of the community.
SECTION 2. It is hereby proclaimed that:
A. The above recitals are true and correct.
B. The increase in dangerous, illegal, reckless and/or distracted driving on PCH in the City currently poses extreme peril to persons and property in Malibu. As such, a local emergency now exists throughout the City of Malibu, which will remain in effect until the extreme danger has subsided;
C. To reduce and prevent the risks associated with dangers posed on PCH, City staff are directed to coordinate with Caltrans, the Los Angeles County Sheriff, the California Highway Patrol, and other entities and government agencies to implement programs, increase enforcement of existing laws and/or develop solutions to reduce the danger on PCH to pedestrians, cyclists and other motorists from dangerous, illegal, reckless and/or distracted driving on PCH.
D. The City Director of Emergency Services, or designee, is directed and authorized to address any and all impacts and conditions caused by the emergency and to obtain any and all aid and assistance from local, county, state, or federal agencies, including but not limited to aid and assistance pursuant to the California Disaster Assistance Act, California Government Code Section 8690 et. seq.
E. The City Manager, as the Purchasing Officer of the City pursuant to Malibu Municipal Code Section 2.56.040 (B) is authorized to make purchases of supplies or services exceeding twenty-five thousand dollars ($25,000.00) in compliance with Malibu Municipal Code, Chapter 2.56.
F. City staff are directed to report back to the City Council regarding programs and strategies proposed or implemented to mitigate the risk associated with this local emergency.
Resolution No. 23-52
_____________________
SECTION 3. The local emergency shall be deemed to continue and exist until its termination is proclaimed by the City Council. As required by law, the City Council shall review the need to continue the state of emergency every 60 days until this resolution is terminated.
SECTION 4. This resolution and the actions taken and/or proposed herein are not a project pursuant to the California Environmental Quality Act (CEQA) since they are activities that are excluded from the definition of a project by section 21065 of the California Public Resources Code and section 15378(b) of the State CEQA Guidelines. The proposed actions are organizational or administrative activities of government which will not result in direct or indirect physical changes in the environment. In the alternative, find that the actions are exempt from CEQA as specific actions necessary to prevent or mitigate an emergency pursuant to section 21080(b)(4) and section 15269(c) of the State CEQA Guidelines.
SECTION 5. The City Clerk shall certify the passage and adoption of this resolution and enter it into the book of original resolutions.
PASSED, APPROVED, and ADOPTED this 13th day of November 2023. _____________________________
STEVE UHRING, Mayor
ATTEST:
__________________________________
KELSEY PETTIJOHN, City Clerk
(seal)
APPROVED AS TO FORM:
__________________________________
TREVOR RUSIN, Interim City Attorney
Agenda Item # 6.D.
Council Agenda Report
To: Mayor Uhring and the Honorable Members of the City Council Prepared by: Rob Houston, Interim Deputy City Manager
Approved by: Steve McClary, City Manager
Date prepared: October 1, 2023 Meeting date: November 13, 2023 Subject: Consideration of Gift of Smart Coast California Membership Fees from Councilmember Grisanti (Continued from October 23, 2023) RECOMMENDED ACTION: Determine whether to accept a gift from Councilmember Grisanti to underwrite the cost of the City joining the Smart Coast California Municipal Collective for each year that he is on the City Council.
FISCAL IMPACT: If the City joins Smart Coast California, acceptance of the gift would result in a savings of approximately $1000 per year, reflecting the cost of membership.
STRATEGIC PRIORITY: This item is part of the day-to-day operations identified in the Adopted FY 2023-24 Strategic Priority Project List.
DISCUSSION: This item is being put forward to consider a gift being offered by Councilmember Grisanti. Membership in Smart Coast California is being considered in a separate agenda item. There is a membership cost of $1,000 per year which Councilmember Grisanti has offered to underwrite each year that he is on the City Council.
The City Council has the discretion to accept or decline gifts such as that offered by Councilmember Grisanti. If the Council elects to join Smart Coast, acceptance of the gift would result in no cost to the City for the period of time Councilmember Grisanti continues to serve on the City Council.
ATTACHMENTS: None.
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Agenda Item # 7.A.
Council Agenda Report
To: Mayor Uhring and the Honorable Members of the City Council Prepared by: Rob Houston, Interim Deputy City Manager
Approved by: Steve McClary, City Manager
Date prepared: October 1, 2023 Meeting date: November 13, 2023 Subject: Smart Coast California Presentation (Councilmember Grisanti) (Continued from October 23, 2023)
RECOMMENDED ACTION: At the request of Councilmember Grisanti, receive a presentation from Smart Coast California describing the organization’s purpose and their efforts to facilitate collaboration between local municipalities and state agencies, and determine whether to join the Smart Coast Municipal Collective group.
FISCAL IMPACT: Annual dues for membership in the Smart Coast Municipal Collective are approximately $1000/year.
STRATEGIC PRIORITY: This item is part of the day-to-day operations identified in the Adopted FY 2023-24 Strategic Priority Project List.
DISCUSSION: Smart Coast California was founded in 2019 to collect and distribute information about scientific studies, proof of concept adaptive projects, and the impacts of changes in the Coastal Commission requirements on cities and counties, now and in the future.
The organization provides planning and policy insight to Coastal Communities and stakeholders through Policy Summits, Stakeholder meetings and other outreach activities.
Work includes the commissioning of a Sea Level Rise study to consolidate sea level rise data from across the State to allow comparison and collaboration. Current discussion being facilitated by the organization is focused on the recent effort by the State to have coastal property owners that are obtaining new permits, to sign away their right to protect their property from coastal erosion.
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Agenda Item # 7.A.
The organization also maintains their website at www.SmartCoastca.org which contains a wide range of coastal information, including information on managed retreat, regulatory takings, existing development and rolling easements. It also provides a LCP renewal listing for coastal cities and counties to help applicants understand the developmental environments that exist across the State.
The Smart Coast Collective Agency is looking to add coastal city partners to their membership to expand their education and advocacy strength. Smart Coast CEO Marta Golding Brown will provide an overview of the organization and the benefits of joining the Collective Group.
ATTACHMENTS: None.
Agenda Item # 7.B.
Council Agenda Report
To: Mayor Uhring and the Honorable Members of the City Council Prepared by: Kelsey Pettijohn, City Clerk
Approved by: Steve McClary, City Manager
Date prepared: October 25, 2023 Meeting date: November 13, 2023 Subject: Proposed 2024 Calendar of City Council Meetings RECOMMENDED ACTION: Approve the proposed 2024 Calendar of City Council meetings.
FISCAL IMPACT: There is no fiscal impact associated with the recommended action.
STRATEGIC PRIORITY: This item is part of the day-to-day operations identified in the Adopted FY 2023-24 Strategic Priority Project List.
DISCUSSION: Staff has prepared the proposed 2024 Calendar of City Council Meetings for Council consideration and adoption.
Budget and Strategic Priority meetings are included in the proposed calendar, although the time and format of the Strategic Priority meetings are still being determined.
Conflicts with Malibu Municipal Code defined holidays and Rosh Hashanah and Yom Kippur have been considered in the proposed calendar.
ATTACHMENTS: Proposed 2024 Calendar of City Council Meetings City Council Meeting
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2024 Calendar of City Council Meetings
JANUARY
Monday, January 8, 2024 Regular Meeting
Monday, January 22, 2024 Regular Meeting
FEBRUARY
Monday, February 12, 20241 Regular Meeting
Monday, February 26, 2024 Regular Meeting
MARCH
Monday, March 11, 2024 Regular Meeting
Wednesday, March 20, 20242 Special Meeting
Monday, March 25, 2024 Regular Meeting
APRIL
Monday, April 8, 2024 Regular Meeting
Monday, April 22, 2024 Regular Meeting
Wednesday, April 24, 20243 Special Meeting
MAY
Monday, May 13, 2024 Regular Meeting
Tuesday, May 28, 2024** Regular Meeting
JUNE
Monday, June 10, 2024 Regular Meeting
Monday, June 24, 2024 Regular Meeting
JULY
Monday, July 8, 20244 Regular Meeting
Monday, July 22, 2024* Cancelled
AUGUST
Monday, August 12, 2024 Regular Meeting
Monday, August 26, 2024 Regular Meeting
SEPTEMBER
Monday, September 9, 2024 Regular Meeting
Wednesday, September 18, 20245 Special Meeting
Monday, September 23, 2024 Regular Meeting
OCTOBER
Monday, October 14, 2024 Regular Meeting
Monday, October 28, 2024 Regular Meeting
NOVEMBER
Tuesday, November 12, 2024** Regular Meeting
Monday, November 25, 2024 Regular Meeting
DECEMBER
Monday, December 9, 20246 Regular Meeting
Monday, December 23, 2024* Cancelled
1 Mid-year Budget Review 2 Strategic Priority Meeting
3 Budget Workshop
4 City Council Reorganization Meeting 5 Strategic Priority Meeting 6 City Council Reorganization Meeting
* Traditional dark meeting
**Schedule modified due to holiday